89-1254 WHITE - C�TV CLERK
PINK - FINANCE GITY OF S INT PALTL Council -^
CANARV - DEPARTMENT "
BLUE - MAYOR File NO.
• •
Counci esolution
Presented By
Referred To Committee: Date �L�!Q J
Out of Committee By Date
WHEREAS, 7he City of Saint Paul , acting thr ugh its Valuation and Assessment Engineer,
has secured an agreement for the purcha e that certain property described as shown
on attached Exhibit A; and
4JHEREAS, The property herein described s ecessary for public purposes in connection
with the widening and reconstruction of Wa ner Road and was approved for acquisition
on January 16, 1979 by final order, Cou ci File #272378� and
WHEREAS, Since the said Council approva , t has also become necessary to acquire
an interest in the property for sewer c ns ruction relating to the legislated sewer
separation program; and
WHEREAS, The price at which the proper y be purchased is in the amount of $9,484,178,
it being a fair and reasonable price f r e subject property, including all necessary
relocation; and
WHEREAS, The Valuation and Assessment ng neer has recommended the purchase of said
property at the price stated above and su ject to the conditions of the Purchase
Agreement attached;
N04l, THEREFORE BE IT RESOLVED, That th p oper City officials are hereby authorized
to sign the attached Purchase Agreemen a d to pay Soo Line Railroad, Inc. , owner of
record, the sum of $g,484,178, in acc rda ce with the conditions of the attached
Agreement. Said sum to be charged to th following funding sources:
Activity Number: 807-62g01-0711
Great River Road Funds (Federal): $4,587,719.00
Special Bonds (CSO Loan Forgiveness B nd ) : $4,6g5,500.00
Municipal State Aid: $ 200,959.00
;
COUNCIL MEMBERS Requested by Department of:
Yeas Dimond Nays F i nance and Management Ser 'ces 7-17-89
Lo� � In F vo
coswitz
Rettman
�.,,�� g __ Agai st BY `
Sonnen
Wi►son
J�L 2 7 Form Appr ed by ttorney
Adopted by Council: Date
Certified Pass b Council S e BY
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By _
Appro ed y Mavor: D e h`�u Approve Mayor for Sub s io ncil
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By By
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WMITE - C�TV CLERK COII�ICII /► /
PINK - FINANGE G I TY O F A NT PA U L
CANARV - DEPARTMENT •�/J,� /�I'►
BLUE - MAVOR File NO T L�
Council es tio %�
. � i,��
Presented By
Refe ed To f °�`'' Committee: Date �
Out of mmittee By Date
WHEREAS, The Cit of Saint Paul , acting t ro gh its Valuation and Assessment Engineer,
has secured an ag ement for the purchase of that certain property described as shown
on attached Exhibit ; and
,�
WHEREAS, The property rein described is ne essary for public purposes in connection
with the widening and r nstruction of W rn r Road and was approved for acquisition
on January 16, 1979 by fi 1 order, Council ile #272378; and
WHEREAS, Since the said Coun ' 1 approval , it has also become necessary to acquire
an interest in the property f sewer co st ction relating to the legislated sewer
separation program; and �,
�,
WHEREAS, The price at which the pr� erty ma be purchased is in the amount of $9,484,178,
it being a fair and reasonable pric�, or th subject property, including alt necessary
relocation; and
WHEREAS, The Valuation and Assessment in er has recommended the purchase of said
property at the price stated above and s R' ct to the conditions of the Purchase
Agreement attached;
�
NOW, THEREFORE BE IT RESOLVED, That the pr per`�..,City officials are hereby authorized
to sign the attached Purchase Agreement an to j�y Soo Line Railroad, Inc. , owner of
record, the sum of $g,484,178, in accord nc with e conditions of the attached
Agreement. Said sum to be charged to t e ollowin funding sources:
Activity Number: 807-62901-0711-ba��
Great River Road Funds (Federal) : $4,587,719.
Special Bonds (CSO Loan Forgiveness Bo ) : $2,776,000.00
Tax Increment Bonds: $1 ,919,500.00
Municipal State Aid: $ 200,g59.00 �
COUNCIL MEMBERS �C`'
Yeas Nays Requested by Department f: � _�-
Dimond Finance and Mana eme t ervices 10-8
L.o� in Fa or
coswitz
Rettman B
sche,n�t __ Agai t y
Sonnen �
Wilson
Form Appr ed b ttorney `
Adopted by Council: Date C�
t t� $
Certified Yassed by Council Secretary BY
sy
Approved by �Vlavor: Date Appr by Mayor for Submi s' n Co�cil
BY — —
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WMITE ,t�JTY CLERK ��� � .� . �=-. � , � . -.�....
PINK -F'INANCE - �` � '�" COV�ICll J
BLUERV -MAVORTMENT � GI�-Y OF A NT PAU� �`�Ie NO. ''L� ' ^�' �^� -
� Council solutio _ -
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Presented By - °�°
Referred To `� �� -� -` , � ``��'' ' "' -�-" Committee: Date �
Out of Committee By � Date
,
1�i Th! C�tY;@� �i�AL �IE�� aCl�A� �tf ri�Mt��11 #� �tM�MME �j�M�r'i
b�i N� iR �Mt �OS' t�li � Q�!'#afw �dNf'�'� ���d � fb�Mi
0�1 at�at�d #atl�ibtt `+ll; a4d
i�Jli, TM� prnoNrty �riw d�rti�d ts ry tor wtri ic �p�s�s tw oaw�ettos
wtt� tt� vldr�tta! a� trt�o�strn�ttsw ot �e�d asi +ws �p�d fi►r aoqntsitta�
on Ja�► l�i, t97� b�► f#iisi �rr�r, ��r�3 s /27*3TSi awd
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1�N�A5, S#� tws �la Ceracti a*pr+o�wl, ajs�► bw�e�s r�assary ta ac*r�rN
aw ist��t i• � ►�t�r fi�..s� ow�s fo� erlat� t�o tlr t+r,�tsiatsi s�
s��rtiee pros+�+ a�d
� tR�ll�J1S, 'l'�s /rtp �t wl�1cA Lhs Pr+�rt�I �1 ts 1� tIM a�orst e�!` �?.'1�•17�s
r tt I�i�g a ia�� a�d �1� prl+a� fisr ,jaet p�tr, twctrdiw� a1i �s+�e�r .
nia�stto�; �d
Yl�AS, ?M�s �al�rtl� a�d J1ss�rs■iret �t has �i�d t6� �r►c� of sa1+i
prop�tY at t� p►�ea� stat+�d a4o�w a�i sdb te t!N oa�iit{�s ef ths i"�rd�
F�.. J1g►r•wMet attaciwd:
. MoK, T1� d� 1T RES@t.11Ea, That tb� Cit�r vfftetals atie t�snb�r a�o�l�/
, to sip� t� attacl�d � li�nr�t �r�l Soo Ciw� It��tra�d, �uc., a�r �f'`
r�oo�rd, tIN s�w o�f �il4*#78, ts " M th tt�a �o�ltti�s a� t!w sttadrd
A�t�l. Said sa� to b� cl�r�d t�o dr 1 la� fn�dt� so�s
�kt iri t�► ��: SEt7�t-8�'1 i
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Ce�st Rtwr Md fi� �l�id�ra!}s .5S7.7r!•�
Sp�ctai � �CS� t�o� Fo�t�ts �s) ,TIb:800.0�,.
Ta�c i�h■�st ia�: 1.'t�.5�00•t10 ' ,
!l�ntclp�l 3�ata lli+�: Z00.�5l.AO �
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COUNCIL MEMBERS . - -�- � �
Yeas Nays Requested by Department of: p,.' € (�
Dimond ���O�t alld �� �!'1t� "tiii '-f`�;`,���"�
��� [n Favor � �•
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� Against BY ° _ . ,~� � _.`3 ��-
Sonnen �:'
Wilson •
Form Apprc�+ed b �i�Ey-Attorney
Adopted by Council: Date �, -^�',_� .� /'�
B ...``��. °�' ` � � � : � ,
Certified Passed by Council Secretary y __.,,,,,..•► �`
By
Approved by Mavor: Date Approved by Mayor Eor Submission to Co6ncil
By B�'
13. Final Order: Improving BIRMINGH S REET from Case Avenue to York Avenue
by grading and paving, construc ing concrete curb and gutter,
constructing a sanitary sewer s st with service connections and
constructing a street lighting s m. Also constructing a water main
and water service connections i Birmingham Street from Case to York.
COMMITTEE RECOMMENDED APPROVAL
14. Final Order: Improving MARKET S RE T from Fifth Street to Sixth Street
by removing the existing paveme 't nd constructing a brick surface on a
new bituminous or concrete base c nstructing tree planters and planting
trees, constructing a decorativ g obe type lighting system and doing
all other work necessary and i ci ental to said improvement. (Laid
over in Committee 7/5/89) .
COMMITTEE RECOMMENDED WITHDRAWA 0 THIS FINAL ORDER
15. Resolution 89-978: Approving en ments to the CABLE ACCESS ST. PAUL
INC. By-Laws as proposed by th C P Board of Directors on May 29, 1986.
(Laid over in Committee 6/13/8 ) .
COMMITTEE RECOMMENDED INDEFINI E YOVER
(for consideration in the futu e)
16. Resolution 89-979: Approving me dments to the CABLE ACCESS ST. PAUL
INC. By-Laws as proposed by th C SP Board of Directors on May 9, 1989.
(Laid over in Committee 6/13/8 ) .
COMMITTEE RECOMMENDED APPROVAL
17. ORDINANCE 89-1152: An Ordinanc a ending the St. Paul Legislative Code
by adding a new chapter pertai in to the franchising of communications
systems.
COMMITTEE RECOMMENDED ONE MON L YOVER
(to be first item on Committe ag nda at that time)
18. Resolution 89-770: Requestin t Mayor to direct the Department of
Finance and Management to red ce by $28,000 the 1989 assessment against
properties which did not rece ve promised street cleaning services in
the Fall of 1988. (Laid over in Committee 7/5/89) .
COMMITTEE RECOMMENDED LAYOVER TO FIRST COMMITTEE MEETING IN AUGUST
19. Resolution 89-323: Plan to p as out certain water systems. (Laid over
in Committee 7/5/89) .
COMMITTEE RECOMMENDED APPROVA 0 SUBSTITUTE RESOLUTION
20. Resolution 89-1191: Recommen in that alternatives to helium filled
balloons be found and that pr ca tions be taken to ensure they are
disposed of properly and not el ased. (Referred to Committee 7/6/89) .
COMMITTEE RECOMMENDED ONE MO H AYOVER
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S-8963: COMMITTEE RECOMMENDED T 0 EEK LAYOVER
S8964 - Both sides DESNOYER AVEN E rom Eustis Street to Curfew Street.
(Laid over in Committee 7/5/89) .
COMMITTEE RECOMMENDED APPROVAL
6. Ratification of Award of Damage : aking temporary easement under and
across the west 20 feet of Lots 10 thru 20, Block 8, Merrill 's Division
of Rice Street Villas. Part of th the ALBEMARLE/NEBRASKA AREA SEWER
SEPARATION PROJECT.
COMMITTEE RECOMMENDED APPROVAL
7. Final Order: Acquire certain an s for the BIRMINGHAM/MINNEHAHA PONDING
PROJECT.
COMMITTEE RECOMMENDED APPROVA
(landscaping and design recom en ations to be completed within 2 months;
g� out to District Councils f r pproval ; final recommendations back to
council within 4 months)
8. Final Order: Acquire certain ro erty for the BIRMINGHAM/YORK PONDING
PROJECT.
COMMITTEE RECOMMENDED APPROV L
(landscaping and design reco me dations to be completed within 2 months;
go out to District Councils or approval ; final recommendations back to
council within 4 months)
9. Ratification of Award of Da ge : Taking a permanent utility easement
for the JACKSON/MAGNOLIA SE R ROJECT.
COMMITTEE RECOMMENDED APPRO AL
10. Ratification of Award of Da ag s: Condemning and taking permanent
utility easements for the T OU BROOK OUTLET-PHAS� A STORM SEWER SYSTEM.
COMMITTEE RECOMMENDED APPR A
._.�.....r-------�
11. Approval of the WARNER ROA r ght-of-way purchase. �y=�� 7"'
COMMITTEE RECOM ED AP
12. Final Order: Grading and p vi g the East-West alley in Campbell 's Re-
Arrangement and Block 3, m 't Avenue Addition from Saratoga Street to
the North-South alley. Also construct a sewer in the alley for storm
water purposes. Also, slo es for the grading and paving of the alley.
(bounded by Saratoga, Ash an , Pascal and Portland) .
COMMITTEE RECOMMENDED APP OV L OF THE ALTERNATIVE PLAN
(an amended Final Order 'll be prepared by City Attorney, John
McCormick)
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, ` o
21. Appeal of Ms. Jennie Charl s a Summary Abatement Order for property
located at 2173 NORTONIA A EN . (Referred to Committee 7/11/89) .
COMMITTEE RECOMMENDED A TW0 WE K LAYOVER
(to be first item on Commit ee agenda at that time)
22. Other Business.
NO OTHER BUSINESS DISCUSSED
S -
� � . � .
Members:
CITY OF NT PAUL Roger J. Goswitz, chair
_�,_, �, �'; Janice Rettman
�������l��� OP'FICP OF T I� ITY COUNCIL
����,���a��� Tom Dimond
�°�'� Date: July 19, 1989
Comm tt e Report
To: Saint Paul City Council
From :Public Works, Utiliti s, and Transportation
Committee
Roger J. Goswitz, C r
l. Approval of minutes of July 5, 19 9.
. MINUTES of the JULY 5, 1989, om ittee me�ting were APPROVED.
2. Vacation: Petition of M.S.D. nc , for the vacation of a one-foot strip
of the alley along Lots 24, 2 , nd 26, Block 4, Denslow's Addition,
bounded by Stinson, Burgess a d ackubin. Purpose is to cure a building
encroachment.
COMMITTEE RECOMMENDED APPROV L
3. Vacation: Petition of the Ci y f Saint Paul for the vacation of part of
Lot l , Block 2, Auditor's Su di ision No. 75 and part of Lot 8, Summit
Cresent which is bounded by oh Ireland Boulevard, Summit Avenue and
Rice Street. Vacated land 'll be conveyed to the State of Minnesota
for the new History Center.
COMMITTEE RECOMMENDED APPRO AL
4. Vacation: Petition of the it of St. Paul to vacate part of Blocks 46
and 47, St. Anthony Park an a so parts of Kendricks Street and
Kendricks Square located b we n Raymond Avenue and vacated Bayless.
Purpose is to develop a co ve ience store.
COMMITTEE RECOMMENDED APPR VA
5. Final Order: Sidewalk cons ru tion and/or reconstruction at the
following locations:
S-8931 - Both sides ALAME A REET from W. Arlington to W. Nebraska
Avenue,
S-8932 - Both sides N. AV N TREET from W. Wheelock Parkway to W. Orange
Avenue,
S-8933 - South side BRAIN RD AVENUE from Clark Street to DeSoto Street
and West side DE S TO STREET from E. Maryland Avenue to
Brainerd Avenue,
S-8934 - East side DANFO H STREET from W. Wheelock Parkway to W.
CIT'Y HALL SEVEN H LOUR SAINT PAUL, MINNESOTA 55102
af�46
e , . � � �
Cottage Avenue,
S-8935 - Both sides W. IDAHO VE UE from N. Dunlap to Fernwood Street,
COMMITTEE RECOMMENDED APPROVA 0 ALL OF THE ABOVE
S-8936 - North side W. IDAHO VE UE from N. Victoria Street to N. Milton
Street,
COMMITTEE RECOMMENDED APPROV L, S AMENDED
(only 2 sidewalk panels to b a ected - 939 West Idaho)
S-8937 - Both sides W. ROSE VE UE from Marion Street to
Galtier Street.
COMMITTEE RECOMMENDED APPROV L
S-8955 - Both sides BORDNER LA E from S. Cleveland to Return Court,
COMMITTEE RECOMMENDED APPRO L, WITH ADJUSTMENTS, IF NECESSARY
(own�r at 2044 Bordner Plac t be contacted before July 20, 1989, to
clarify that correct panels ar being done)
S-8956 - Both sides S. FINN ST EET from Hampshire Avenue to Magoffin
Avenue,
S-8957 - North side LINCOLN AV NUE from S. Fairview Avenue to S. Wheeler
Street,
S-8958 - South side MONTREA A ENUE from Davern Street to S. Fairview
Avenue,
COMMITTEE RECOMMENDED APPR AL ON PREVIOUS THREE ITEMS
S-8959 - Both sides PALACE AV UE from S. Fairview Avenue to S. Wheeler
Street, (Laid over in Comm tt e 7/5/89) .
COMMITTEE RECOMMENDED TWO EE LAYOVER
S-8960 - Both sides ROME A EN E from S. Fairview Avenue to S. Howell
Street,
COMMITTEE RECOMMENDED APP VA
S-8961 - Bnth sides ST. P UL VENUE from Montreal Avenue to Edgcumbe
Road,
COMMITTEE RECOMMENDED TW0'WE K LAYOVER
S-8962 - Both sides SARGE T VENUE from S. Snelling Avenue to S.
Saratoga St. ,
COMMITTEE RECOMMENDED APP OV L
S-8963 - Both sides STAN R AVENUE from S. Fairview to S. Wheeler
Street, (Laid over in Co i ee 7/5/89) .
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THE DEPAR M NT OF PUBLIC WORKS
OF THE
CI Y OF ST. PAUL
INTER-O FI E COMMUNICATION
TO: CITY COUNCIL E BERS, CITY CLERK
� �
FROM: Leon Pearson, Publi rks �
DATE: 7/26/89
SUBJECT: SOO LINE PURC A E / WARNER ROAD
AGENDA ITEM 13 / T URSDAY JULY 27, 1989
I have just received copies of last inu e minor changes to the proposed purchase
agreement and lease that have bee n gotiated by the attorney's. One copy is
"marked up" to show what changes ha e been made between the draft originally
provided to you and the current dra . he other copy is a clean copy for your use.
These are not substantive changes h ever we would like the final resolution to
include the final language as the o ici I attachment.
�,��-��`�/
LEON PEARSON JULY 25, 1989
I r��n,: THOMAS R. MARER
���1'i���t: pIIRCHABE AGREEMENT BETT�PEEN
CITY OF SAINT PAIIL AND 300 LI
Enclosed for distribution to t e members of the Saint Paul City
Council are twelve copies f ach of the following documents
relating to the proposed purc a e of Warner Road from Soo Line:
1. Purchase Agreement, wi h Exhibits, and a "redlined" copy
marked to show chan e to the draft dated 7/10/89; and
2. Lease Agreement, a "redlined" copy marked to show
changes to the draf ted 6/16/89.
TRM:mp
Enclosures
.
TABLE OF CONTENTS
Paqe
ART�CLE 1 BASIC LEASE INFO ION . . . . . . . . . . . . 1
ARTICLE 2 AGREEMENT . . . . . . . . . . . . . . . . . 2
ARTICLE 3 TERM• POSSESSION . . . . . . . . . . . . . . . 2
ARTICLE 4 TAXES AND ASSES E TS . . . . . . . . . . . . . 3
ARTICLE 5 UTILITIES . . . . . . . . . . . . . . . . . 5
ARTICLE 6 INSURANCE . . . . . . . . . . . . . . . . . 6
ARTICLE 7 USE . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 8 RE UIREMENTS OF W . . . . . . . . . . . . . . 6
ARTICLE 9 ASSIGNMENT AND SU LETTING . . . . . . . . . . . 7
ARTICLE 10 ALTERATIONS . . . . . . . . . . . . . . . . 7
ARTICLE 11 MECHANIC'S LIE S . . . . . . . . . . . . . . . . 8
ARTICLE 12 END OF TERM . . . . . . . . . . . . . . . . 9
ARTICLE 13 HOLDING OVER . . . . . . . . . . . . . . . . . 9
ARTICLE 14 DAMAGE OR DES U TION . . . . . . . . . . . . . 10
ARTICLE 15 CONDEMNATION . . . . . . . . . . . . . . . . 11
ARTICLE 16 ENTRY OF LAND R . . . . . . . . . . . . . . . 12
ARTICLE 17 INDEMNIFICATI N WAIVER AND RELEASE . . . . . . 14
ARTICLE 18 UIET ENJOYME T . . . . . . . . . . . . . . . . 15
ARTICLE 19 EFFECT OF SA . . . . . . . . . . . . . . . . 15
ARTICLE 20 DEFAULT . . . . . . . . . . . . . . . . . . 15
ARTICLE 21 MISCELLANEOU . . . . . . . . . . . . . . . . 17
EXHIBIT A LEGAL DESCRI T N OF THE PREMISES
EXHIBIT B MAPS
EXHIBIT C RELEASE
i
EASE
THIS LEASE is entered into e ween Landlord and Tenant described
in Article 1 on the Commenc me t Date set forth below.
R CITALS
This Lease sets forth the gr ement of Landlord and Tenant with
respect to the leasing of t e remises by Tenant.
In consideration of the mutu 1 ovenants set forth herein and other
good and valuable considera i n, the receipt and sufficiency of
which is hereby acknowledged L ndlord and Tenant agree as follows:
ARTICLE 1 B SI LEASE INFORMATION
In addition to the terms whi re defined elsewhere in this Lease,
the following defined terms r used in this Lease:
(a) LANDLORD: City f aint Paul, a municipal corporation
under the laws of the State f Minnesota.
(b) TENANT: Soo in Railroad Company, a Minnesota
corporation.
(c) TERM: From he Commencement Date through the
Expiration Date.
(d) COMMENCEMENT DAT : August , 1989.
(e) EXPIRATION DATE: uly 31, 1990. Tenant may vacate
the premises prior to su h date without penalty, it being
Landlord's intention and de ir that Tenant vacate the Premises
prior to said date if possi e In the event Tenant vacates the
Premises prior to July 31, 19 0, the Expiration Date shall be
deemed to be the date Tenant 'v ates the Premises. Tenant has no
option to extend the Term. ,
(f) PREMISES: See Ex i it A attached hereto. The Excluded
Parcel is an area of land at he south edge of the Premises (except
that the Premises includes t e tracks thereon) , as delineated on
one of the Maps attached h re o as Exhibit B. The purpose of
excluding the Excluded Par el from the Premises is to permit
Landlord to construct, at i s xpense, a bypass road for Warner
Road traffic that will enabl L ndlord to construct a sewer outlet
on the bank of the Mississip i iver.
(g) RENT: Tenant is �no obligated to pay any rent during
the Term; however, Tenant s all be responsible for taxes,
utilities, insurance, repai s, maintenance and other operating
expenses as provided herein.
1
�
(h) LANDLORD'S ADDRESS C'ty of Saint Paul
6 7 City Hall
int Paul, MN 55102
tention: City Attorney's Office
(i) TENANT'S ADDRESS: oo Line Railroad Company
0o Line Building
ox 530 �
inneapolis, MN 55440
ttention: Real Estate Department
(j) PURCHASE AGREEMEN : That certain Purchase Agreement
dated July , 1989, b a d between Landlord and Tenant.
(k) LAND: The real pr pe ty described in Exhibit A to this
Lease.
(1) EXCLUDED PARCEL: h t portion of the Land that is not
included in the Premises, as ho n on the Map attached as Exhibit
B-
(m) GROUND: The Pre is s, excluding building, trackage,
and other improvements thereo thereto.
* * * * *
The following exhibits a e ttached to this Lease and are made
a part of this Lease:
EXHIBIT A - Lega1 D scription of the Premises
EXHIBIT B - Maps
EXHIBIT C - Rele se
* * * *
ARTIC AGREEMENT
Landlord leases the Pre is s to Tenant, and Tenant leases the
Premises from Landlord, acco d ng to this Lease and the Purchase
Agreement.
ARTICLE 3 RM• POSSESSION
3 . 1 Commencement of e The Term or this Lease begins
on the Commencement Date and e pires on the Expiration Date.
3.2 Deliver of P s ssion. Landlord shall deliver
possession of the Premises o t e Commencement Date. The taking of
possession of the Leased P m ses by Tenant shall be conclusive
evidence that the Leased Pre is s were in the agreed upon condition
at the commencement of the ea e Term.
2
• �9- ,a��
ARTICLE 4 TA E AND ASSESSMENTS
4. 1 Obli ation for P nt. Tenant will pay all taxes
(collectively the "Taxes") , n uding, without limitation, real
property and personal prope ty taxes and assessments (but not
special assessments) assess d, payable, levied, confirmed or
imposed during the Term or wi h egard to any fiscal period of the
� taxing authority which is in lu ed within the Term regardless of
the date on which such Taxe a e assessed, levied, confirmed or
imposed, whether or not now us omary or within the contemplation
of Landlord and Tenant:
(a) upon, measu e by or reasonably attributable to
the cost or value of Tenant's quipment, furniture, fixtures and
other personal property loca e in the Premises or by the cost or
value of any leasehold impro e ents made in or to the Premises by
or for Tenant regardless of w e her title to such improvements will
be in Tenant or Landlord;
(b) upon or wi h espect to the possession, leasing,
operation, management, mai te ance, alteration, repair, use or
occupancy by Tenant of the P e ' ses or any portion of the Premises;
(c) upon this tr nsaction or any document to which
Tenant is a party creating o ansferring an interest or an estate
in the Premises;
(d) upon the r mises, and all personal property,
furniture, fixtures, and quipment, and all replacements,
improvements or additions t the Premises, whether owned by
Landlord or Tenant; and
Upon written respect by Lan 1 d, Tenant will provide Landlord with
copies of receipts evidenc n the payment of all Taxes.
4.2 Taxes Pa able in Installments. If, by law, any Tax
may at the option of the t xp yer be paid in installments (whether
or not interest accrues on t unpaid balance of such Tax) , Tenant
may exercise the option t p y such Tax (and any accrued interest
on the unpaid balance of s h Tax) in installments and in such
event Tenant will pay the 'n tallments which become due during the
Term as they become due a before any fine, penalty, further
interest or cost may be a d to them.
4 . 3 Taxes for Pe io other than the Term of this Lease.
Any Taxes, including T x s which have been converted into
installment payments rel t' g to a fiscal period of the taxing
authority, a part of wh ch period is included within the Term,
whether or not such Taxes a e assessed, levied, confirmed, imposed
upon or in respect of, r become a lien upon the Premises, or
become payable, during e Term of this Lease, will be adjusted
between Landlord and Te an so that Tenant pays that portion of
such Taxes which that p t of such fiscal period included in the
3
Term of this Lease bears to u h fiscal period, and Landlord pays
the remainder.
4 .4 Other Im osition . Both parties agree to comply with
all federal, state and loc l tax laws and regulations as they
pertain to each party, and il make no claim on the other party
for such taxes except for ta es stated in this Lease. Tenant will
not be obligated to pay loc 1, state or federal net income taxes
assessed against Landlord; 1 ca , state or federal capital levy of
Landlord; or sales, excise, fr nchise, gift, estate, succession,
inheritance or transfer taxe f Landlord. Both parties agree to
pay and to hold each other h ess against any penalty, interest,
additional tax or other cha e that may be levied or assessed as
a result of the delay or fai u of the party, for any reason, to
pay any tax or file any retur o information required by law, rule
or regulation or by this Lea e.
4.5 Ri ht to Contest Ta es. Tenant will have the right to
contest the amount or validi y, in whole or in part, of any Taxes
by appropriate proceedings di i ently conducted in good faith, only
after notifying Landlord of c proceedings and paying such Taxes
or, in the event and to t xtent that any loss, penalty or
forfeiture with respect to t e remises becomes imminent, posting
such security as Landlord a reasonably require in order to
protect the Premises against l ss, penalty, or forfeiture. Upon
the termination of any such p �oc edings, Tenant will pay the amount
of such Taxes which is final y etermined to be due and which has
been deferred during the pros' c tion of such proceedings, together
with any costs, fees, int r st, penalties or other related
liabilities. Landlord will o be required to join in any such
contest or proceedings. Lan 1 rd may not institute a contest of
any Tax which Tenant does no c ntest without Tenant's permission
which will not be unreasona ly withheld. Such contest will be
solely at Landlord's cost. t Landlord's cost Landlord may join
in any contest of any Tax wh'c Tenant institutes or may monitor
any such contest.
4. 6 S ec'al Provisio f r Railroad O eratin Pro ert Tax.
Tenant represents that the L nd is currently included in Tenant's
railroad operating property t x ills for Ramsey County, Minnesota.
The operating property tax i assessed pursuant to Minnesota
Statutes Section 270.81 et s q. and is in lieu of local property
tax assessment. The assessme t rendered against Tenant under the
operating property tax are p ya le one year in arrears on May 15
and October 15 of each year; ay of example, the 1989 assessment
is payable in May and Octobe o 1990. The status of property as
operating property (hence, s j ct to the operating property tax)
or non-operating property (h nc , subject to local assessment) is
determined on January 2 of th a sessment year; by way of example,
if a parcel or property is o r ting property on January 2, 1989,
it will be included in the o e ting property tax bills that are
payable in 1990. Under Se ti n 270.81 et seq. , the value of
Tenant's operating property ' etermined on a statewide basis by
the Department of Revenue (" O ") . The DOR then apportions and
4
equalizes the value to the res e tive counties, and the counties
impose the tax based on their e pective mill rates. Because of
the tax structure, there is no i ple and certain way to determine
what portion of Tenant's Rams ounty operating property tax is
attributable to the Land.
In light of the constr i ts described in the preceding
paragraph, and notwithstandi g any contrary provision of this
Lease: (1) Tenant shall pay h operating property tax assessed
in respect of the Premises and o the Excluded Parcel, as the case
may be, for any assessment ye r in which Tenant is in possession
of the Premises on January 2 f uch assessment year. (By way of
example, if Tenant is in poss ss'on of the Premises on January 2,
1990, Tenant will be responsi 1 for the operating property taxes
payable in respect of the P e ises and the Excluded Parcel in
1991. ) (2) There shall be no p oration of operating property tax
bills between Tenant and Lan o d. (By way of example, if Tenant
is in possession of the Prem s on January 2, 1990, it shall be
solely responsible for the o erating property taxes that are
payable in 1991, and Landlord s all have no responsibility for any
portion of said taxes. ) (3) f, however, the Premises and Excluded
Property, as the case may be, b come subject to local property tax
assessment (as opposed to pe ating property tax) at any time
during the Term, then: (a) o he extent that the Premises become
subject to local property ax assessment, Tenant shall only be
responsible for the local p o erty tax bills which are actually
payable (as opposed to asse s or accrued) during the Term, and
the liability for such tax il s shall be prorated between Tenant
and Landlord on a per diem b si as of the Expiration Date, and (b)
to the extent that the Exc ud d Parcel becomes subject to local
property tax assessment, La dl yd shall be solely responsible for
any tax bill resulting from lo al assessment. (4) Tenant will use
its reasonable efforts to av the Premises assessed as railroad
operating property in resp ct of assessments which accrue during
the Term.
ARTI L 5 UTILITIES
On the Commencement at , Tenant accepts the utilities and
services which serve the P em ses (the "Utilities") . Landlord has
not made any other repres nt tions to Tenant about the Utilities
or services. Tenant will p y the appropriate suppliers for the
Utilities and all service u ed by Tenant on the Premises during
the Term. Tenant will al o rocure and maintain, or cause to be
procured and maintained, i out cost to Landlord, all necessary
wires, pipes, conduits, t b s and other equipment and appliances
for use in supplying th tilities to the Premises, and all
permits, licenses, or oth r uthorizations required for the lawful
and proper installation nd maintenance of the Utilities on the
Premises. Landlord, up n request of Tenant, and at the sole
expense and liability o T nant, will join with Tenant in any
application required fo btaining or continuing any of the
Utilities.
5
ART C E 6 INSURANCE
6. 1 Tenant's Self n urance. During the Term, Tenant will
maintain insurance in a n er consistent with prudent railroad
industry practice. Tenant cu rently is insured as follows: Tenant
has $95, 000, 000 of liabil 'ty insurance in excess of a $5,000, 000
self-insured retention; a d Tenant has $10,250, 000 of property
insurance in excess of a $ , 00,000 self-insured retention.
6.2 Waiver of Subr a ion. Landlord and Tenant each waive
any and all rights to rec v against the other, or against the
officials, officers, dir ct rs, shareholders, partners, joint
venturers, employees or ag n s of such other party, for any loss
or damage to such waiving a y arising from any cause covered by
any insurance required to be carried by such party or any other
form of real or personal, i ect or indirect, property insurance
actually carried by such p rt . Landlord and Tenant will in good
faith request their respect v insurers to issue appropriate waiver
of subrogation rights end rs ments to all property policies of
insurance carried in con e tion with the Premises or their
contents.
TI LE 7 USE
The Premises will be used o 1 for railroad purposes as permitted
by law.
ARTICLE 8 R UIREMENTS OF LAW
8.1 General. Excep a provided for in Section 8. 3 , during
the Term, at Tenant's expen e nd without any expense to Landlord,
Tenant will comply with and a ide by all federal, state, county,
municipal and other govermm � al statutes, ordinances, laws, and
regulations affecting the P em'ses, and any activity or condition
in the Premises including i hout limitation those relating to
environmental matters and az rdous materials (collectively the
"Laws") . So long as Tenant no ifies Landlord of its intention to
do so, Tenant may contest t e alidity or application of any Laws
by appropriate proceedings il 'gently conducted in good faith in
the name of Tenant, or, with t prior consent of the Landlord, in
the name of Landlord, or bot , ithout cost or expense to Landlord.
If compliance with any such w may legally be delayed pending the
prosecution of any such pro ee ing without the incurrence of any
lien charge or liability o ny kind against the Premises, or
Tenant's interest in the Pr mi es, and without subjecting Tenant
or Landlord to any liability c vil or criminal, for failure so to
comply, Tenant may delay com 1 'ance until the final determination
of such proceeding. Even i lien, charge or liability may be
incurred by reason of any su h elay, Tenant may contest the Laws
and delay compliance with th ws according to this Article 8.1,
so long as (a) such contest r elay does not subject Landlord to
criminal or civil liability o damages or any expense and (b)
Tenant (i) furnishes to Landl r security, reasonably satisfactory
to Landlord, against any los r injury by reason of any contest
6
� �9 - �a���
or delay, and (ii) prosecute uch contest with due diligence.
Landlord will not be required to join in any proceedings pursuant
to this Article 8. 1.
8.2 Hazardous Materia s. During the Term of this Lease,
Tenant will not store, use r dispose of any asbestos, PCBs,.
ureaformaldehyde or other haza d us materials of a type or quantity
which violate any applicable s a e or federal envirorimental law or
regulation in, on or about t e remises. Tenant will be solely
responsible for and will defe d, indemnify and hold Landlord, its
agents and employees harmless f om and against all claims, costs
and liabilities, including at or eys' fees and costs, arising out
of or in connection with Tenan 's breach of its obligations in this
Section 8.2. Tenant will b olely responsible for and will
defend, indemnify and hold an lord, its agents and employees
harmless from and against an and all claims, costs, and
liabilities, including attorn y ' fees and costs, arising out of
or in connection with the re v 1, clean-up and restoration work
and materials necessary to re ur the Premises to their condition
existing prior to the appeara c of Tenant's hazardous materials
on the Premises during the erm of this Lease. Tenant's
obligations under this Sectio w 11 survive the end of this Lease.
This Section 8.2 shall not app y ith respect to occurrences to the
extent that they are the resu t f Landlord's negligence.
8.3 Remediation of Pr m' es. Except with respect to the
Term as otherwise expressly p v ded in Section 8.2 of this Lease,
Landlord and Tenant shall obs rv all the terms and conditions of
Section 8. 3 of the Purchase A re ment with respect to remediation
of the Premises.
ARTICLE 9 ASSI ENT AND SUBLETTING
Tenant may not assign, o gage or encumber this Lease in
whole or in part, or sublea 11 or part of the Premises, or
permit all or part of the Prem se to be used or occupied by others
except that Tenant may sublet o Trimodal, Inc. the portion of the
Premises that is subject to t e rimodal Lease, as defined in the
Purchase Agreement, which de i ition is incorporated herein by
reference. Tenant will term'n te the Trimodal Lease effective
simultaneously with the Expir ti n Date.
ARTICLE 0 ALTERATIONS
Tenant will not make ny alterations, additions or
improvements to the Premise ithout Landlord's prior written
consent, which consent will n t e unreasonably withheld, delayed
or conditioned. Tenant will o place in or on the Premises any
signs, billboards, displays o a vertising, other than signs that
only identify Tenant and/or T im dal Inc.
By notice given to Tenan n less than sixty (60) days prior
to the expiration of this Leas , andlord may require to be removed
by Tenant any alterations, a di ions, fixtures and improvements
which have been made in or upo he Premises and which interfere
with reasonable use of the Pre i es. In that event, Tenant will
remove such alterations, addit 'o s, fixtures and improvements at
Tenant's sole cost and will re to e the Premises to the condition
in which they were before such lt rations, additions, fixtures and
improvements were made, reason bl wear and tear excepted.
- At Landlord's expense and p n notification to Tenant, Tenant
will realign any railroad t cks as necessary to permit
construction and use of a r ad to bypass Warner Road at the
southern edge of the Premises a delineated on the Map attached
hereto as Exhibit B. Tenant ma use said tracks prior to such
realignment until Landlord no if es Tenant that such realignment
is necessary.
ARTICLE 11 ME HANIC'S LIENS
Tenant will cause to e paid or pay when due, before
delinquency, all costs and ch rg s for work done by it or caused
to be done by it to the Premi e and for all materials furnished
in connection with such wor . Tenant will indemnify Landlord
against and hold Landlord a d the Premises harmless from all
mechanics' liens and claims o iens, and all other liabilities,
liens, claims and demand an a o nt of such work or materials. If
any such lien is filed again t he Premises, or any part of the
Premises, Tenant will cause s c lien to be discharged of record
within ten days after the fil n of such lien, however, if Tenant
desires to contest such lien w'thin such ten-day period, Tenant
will furnish Landlord securit r asonably satisfactory to Landlord
in an amount equal to at lea t 100� of the amount of the claim,
plus estimated costs and inte es . If a final judgment, after the
exhaustion of all appeals by Te ant, establishes the validity or
existence of a lien for any mo nt, Tenant will promptly satisfy
the judgment. If Tenant fail o pay any charge for which a lien
has been filed, and has not i n Landlord security according to
this Article 11, Landlord m , at its option, pay the lien and
related costs and interest, d the amount so paid, together with
reasonable attorneys' fees in u red in connection with it, will be
immediately due from Tenant t L ndlord. Nothing contained in this
Lease is deemed the consent 'or agreement of Landlord to subj ect
Landlord's interest in the remises to liability under any
mechanics' or other lien 1 w. If either Landlord or Tenant
receives notice that a lien s been filed or is about to be filed
against the Premises or any p rt of the Premises or any action
affecting title to the Premi e has been commenced on account of
work done for Tenant or mate ia s furnished to Tenant, Landlord or
Tenant, as the case may be, i 1 immediately give the other party
written notice of such lien r ction. At least fifteen (15) days
prior to the commencement of a y work (including, but not limited
to, any Alterations subjec t Article 10) to the Premises by
Tenant, Tenant will give La dl yd written notice of the proposed
work and the names and addr s es of the persons supplying labor
and materials for the propos d ork. Landlord will have the right
8
to post notices of nonresp ns 'bility or similar notices on the
Premises in order to protec t e Premises against any such liens.
ARTICL 1 END OF TERM
At the end of the Term, T nant will surrender the Premises in
good order and condition, r inary wear and tear excepted. If
Tenant is not then in defaul , Tenar�t may remove from the Premises
and buildings thereon any r e fixtures, equipment and movable
furniture placed on or in e Premises by Tenant, whether or not
such trade fixtures or e "p ent are fastened to the Premises,
except that Tenant shall n t emove railroad tracks and railroad
ties from the Premises, 'n luding tracks and ties that are
installed as part of Ten n 's normal maintenance to replace
existing tracks and ties b t xcluding: (i) the tracks and ties
so replaced and (ii) the tr c and ties of any new track segments
that are installed after t e Commencement Date. Whether or not
Tenant is in default, T n t will remove such alterations,
additions, improvements, t ad fixtures, equipment and furniture
as Landlord requested in a co dance with Article 10. Tenant will
fully repair any damage o ca ioned by the removal of any trade
fixtures, equipment, fu i ure, alterations, additions and
improvements. All trade fi tu es, equipment, furniture, inventory,
effects, alterations, addi io s and improvements not removed will
conclusively be deemed o have been abandoned and may be
appropriated, sold, stored stroyed or otherwise disposed of by
Landlord without notice to T ant or any other person and without
obligation to account for h m; and Tenant will pay Landlord all
expenses incurred in conne ti n with such property, including, but
not limited to, the cost f epairing any damage to the Premises
caused by removal of such pr perty which will interfere with the
reasonable use of the Prem'' s s so long as Tenant has notice of or
is billed for such costs i in 30 days of the end of the Term.
Tenant's obligation to o se e and perform this covenant will
survive the end of the e , until Tenant has complied with
Landlord's notice or paid th bill for the costs required in the
prior sentence.
ARTIC 13 HOLDING OVER
Tenant will have no i ht to remain in possession of all or
any part of the Premises a er the expiration of the Term. If
Tenant remains in posses io of all or any part of the Premises
after the Expiration Dat , enant shall pay Landlord liquidated
damages of Two Thousand D 11 rs ($2000. 00) for each day of holding
over after the Expiration Da e. It is recognized that this amount
represents approximately n ne percent (9�) annual capitalization
rate applied to the $6, 9 , 638 payment payable at Closing as
defined in the Purchase gr ement pursuant to Section 2 . 1 of the
Purchase Agreement. La 1 rd and Tenant agree that liquidated
damages of $2000 per day 's reasonable estimate of the Landlord's
actual expense it would i c r as the result of a delay in Seller's
vacating the Premises d that Landlord's actual damages are
difficult to ascertain c use of the complex interrelationship
9
among Landlord's obligation nder agreements relating to the
future development of the Pr m' ses.
ARTICLE 14 GE OR DESTRUCTION
� 14. 1 General. If the Gr und or any part thereof is damaged
or destroyed, Tenant will i�' diately notify Landlord. In the
event of such damage or des ru tion, Tenant will promptly repair
or rebuild the Ground at Tena t's expense, so as to make the Ground
at least equal in value to e Ground existing immediately prior
to such occurrence and as ne rl similar to it in character as is
practicable and reasonable, wi hout regard to whether there are
sufficient insurance procee s. Landlord will apply and make
available to pay to Tenant t e net proceeds of any fire or other
casualty insurance paid to L nd ord, after deduction of any costs
of collection, including r s nable attorneys' fees, for such
repairing or rebuilding as t e ame progresses. Payments will be
made against properly certif'ed vouchers of a competent architect
in charge of the work and a p oved by Landlord. Landlord will
contribute, out of such insur n e proceeds towards each payment to
be made by or on behalf of Te a , for the repairing or rebuilding
of the Ground, under a sched l of payments to be made by Tenant
and not unreasonably objecte o by Landlord, an amount in such
proportion to such payment y Tenant as the total net amount
received by Landlord from i u ers bears to the total estimated
cost of the rebuilding or e airing. Landlord, however, may
withhold from each amount so t be paid by Landlord, so much of
such amount as Landlord r s nably believes is necessary to
withhold, but in no event mo han fifteen percent (15�) of such
amount, until the work of rep ir'ng or rebuilding is completed and
proof has been furnished to L nd ord that no lien or liability has
attached or will attach t he Premises or to Landlord in
connection with such repairin o rebuilding. Upon the completion
of rebuilding and the furnish n of such proof, the balance of the
net proceeds of such insuran e ill be paid to Tenant. Landlord
will not be obligated to pay Te ant any interest on the proceeds
held by Landlord unless Land or itself is paid interest on such
proceeds and then Landlord's nl obligation will be to pay Tenant
what is paid to Landlord on ac ount of such proceeds. If such
proceeds of insurance are pa d o the holder of any mortgage on
Landlord's interest in the Pr m' ses, Landlord will make available
net proceeds of such insuran e n accordance with the provisions
of this paragraph. Before b gi ning such repairs or rebuilding,
or letting any contracts i ' onnection with such repairs or
rebuilding, Tenant will sub it for Landlord's approval, which
approval Landlord will not unr as nably withhold or delay, complete
and detailed plans and sp ci ications for such repairs or
rebuilding. If Landlord doe ot approve such plans within 30
days, such plans are deemed p oved. Promptly after receiving
Landlord's approval of those a s and specifications, Tenant will
begin such repairs or rebuil in and will prosecute the repairs
and rebuilding to completion it diligence, subject, however, to
strikes, lockouts, acts f God, embargoes, governmental
restrictions, and other causes' b yond Tenant's reasonable control,
0
except for lack of funds. T n nt will obtain and deliver to
Landlord a temporary or final er ificate of occupancy before the
Premises are reoccupied for a y purpose. Such repairs or
rebuilding will be completed fr e and clear of inechanics' or other
liens, and in accordance with t e uilding codes and all applicable
laws, ordinances, regulations, or orders of any state, municipal,
or other public authority affec i g the repairs or rebuilding, and
also in accordance with all r rements of the insurance rating
organization, or similar bod , nd of any liability insurance
company, insuring Landlord aga' s liability for accidents related
to the Premises. Any remaini roceeds of insurance after such
restoration will be Tenant's p o rty.
14.2 Excessive DamaQe. ; I at any time during the Term the
Ground, or any part thereof, i so damaged that the cost of
restoration exceeds fifty perc nt (50�) of the market value of the
Ground immediately prior to su h amage, either Landlord or Tenant
may, within thirty (30) days a te such damage, give notice of its
election to terminate this ea e and, subject to the further
provisions of this paragraph, h' Lease will cease on the date of
the delivery of such notice. Zf his Lease is so terminated Tenant
will have no obligation to e ir or rebuild, and the entire
insurance proceeds in respect o such damage to the Ground will
belong to Landlord.
ARTICLE 1 CONDEMNATION
15. 1 Total Takina. If, b exercise of the right of eminent
domain or by conveyance made i response to the threat of the
exercise of such right (in e't er case a "taking") , all of the
Premises are taken, or if so u h of the Premises are taken that
the Premises (even if the re to ations described in Section 15.2
were to be made) cannot be �se by Tenant for the purposes for
which they were used immediate y efore the taking, this Lease will
end on the earlier of the ves i of title to the Premises in the
condemning authority, or the a ing of possession of the Premises
by the condemning authority ( 'n either case the "ending date") .
15.2 Partial Takina. If, after a taking, so much of the
Premises remains that the Pr mi es can be used for substantially
the same purposes for which e were used immediately before the
taking, (i) this Lease will d on the ending date as to the part
of the Premises which is ta e ; (ii) at its cost, Tenant will
restore so much of the P em ses as remains so that it is
substantially suitable for he purposes for which it was used
inumediately before the taking ' u ing good workmanship and new first
class materials; (iii) upon t e ompletion of restoration according
to clause (ii) , Landlord wi l ay Tenant the lesser of the net
award made to Landlord on ac o nt of the taking (after deducting
from the total award atto e s' , appraisers' and other costs
incurred in connection with bt ining the award, and amounts paid
to any Lender) , or Tenant's t al out-of-pocket cost of restoring
the Premises; and (iv) Landl r will keep the balance of the net
award.
il
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15.3 Tenant's Award. In connection with any taking subject
to Section 15.1 or 15.2, T na t may prosecute its own claim by
separate proceedings against t e condemning authority for damages
legally due to it (such as he loss of fixtures which Tenant was
entitled to remove, and movi g expenses) only so long as Tenant's
award does not diminish or th rwise adversely affect Landlord's
award. �
15.4 Allocation of an w rd for a Total or a Partial Takin .
If the Premises are totally o partially taken as described in
Sections 15. 1 and 15.2, the c ndemnation award will be paid to
Landlord, except that any aw rd made to Tenant pursuant to a claim
prosecuted separately by Te an in accordance with Section 15.3
shall belong to Tenant.
ARTICLE 16 , E TRY OF LANDLORD
Landlord, its agents, mp oyees, and contractors may enter
the Premises at reasonable h r and upon reasonable notice to (a)
inspect the Premises, (b) d te ine whether Tenant is complying
with all its obligations in hi Lease, (c) conduct environmental
testing, surveying, or reme ia ion or containment, and (d) post
notices of nonresponsibilit r similar notice. Except with
respect to clause (c) of thi aragraph, Tenant waives any claim
for damages for any injury or in onvenience to or interference with
Tenant's business, any loss o ccupancy or quiet enjoyment of the
Premises or any other loss oc a ioned by such entry; except if the
claim arises out of the n gligence or willful misconduct of
Landlord, its agents or cont ac ors.
In connection with any uc entry, Landlord will comply with
the following conditions:
(i) Landlord and its mp oyees, agents and contractors will
strictly comply with al ules, regulations, policies, and
safety requirements o Tenant; in the event of any
noncompliance, Tenant m y (without prior notice) exclude or
eject the noncomplying p rs n or party from the Premises until
such time as the nonco pl ing person or party evidences a
willingness to comply.
(ii) The notice to be i en by Landlord will be in writing
and shall specify the pr cise nature of the work to be
performed during the en ry The notice shall be personally
delivered or delivered y .S. Postal Service to Mr. Thomas
M. Parsons at Tenant's i ing address.
(iii) Landlord will ca s each individual who enters the
Premises on its behalf, ot er than Landlord's employees, to
execute and deliver to T n nt, prior to such entry, Tenant's
2
form of liability Release, a opy of which is attached hereto
as Exhibit C. Tenant, at ts option, may refuse entry to any
individual, other than L n lord's employees, who has not
executed and delivered a p op r Release. The Release will not
affect the indemnificat on provisions in the Purchase
Agreement or the rights a d obligations of the Landlord and
Tenant thereunder.
(iv) Upon the completio o any work conducted during such
entry, Landlord will rem ' e any debris resulting from such
work and shall restore t e Premises to the condition that
existed immediately prior to such entry.
(v) During such entry, a lord (and its employees, agents,
and contractors) will no i terfere with the operations of
Tenant's trains or equi 'me t (or trains or equipment of
others) operating on or n a the Premises.
(vi) Before entering th remises for any of the purposes
specified in clause (c) f this Article 16, Landlord's
contractor will procure ' olicy of comprehensive general
liability insurance of no 1 ss than $1,500,000 (single limit,
personal and property da ag combined) , naming Tenant as an
additional insured, and s all furnish to Tenant a duly-
certified certificate evi e cing such insurance. The policy
shall be issued by an in urer and in a form reasonably
acceptable to Tenant, sh ll contain a waiver of subrogation
rights (and rights in h nature of subrogation rights)
against the Tenant, and h 1 provide that the policy shall
not be cancelled or mate ia ly modified without at least ten
(l0) days' written notic Tenant. In the event that any
of the work to be perfo ed by Landlord's contractors would,
in the reasonable judgme t f Tenant, bring such work within
the scope of any "railro d' exception, or similar exception
or exclusion, under th olicy of comprehensive general
liability insurance, La dl yd's contractor shall, prior to
commencing such work, ob i railroad protective insurance of
not less than $1, 500,000 (s ngle limit, personal and property
damage combined) and sha 1 urnish to Tenant a duly-certified
certificate evidencing s ' c insurance; the policy shall name
Tenant as the insured a hall meet the criteria set forth
in the second sentence o is paragraph (vi) .
(vii) Landlord or its c nt actor will secure, at its or their
own expense, any permi r licenses required by federal,
state, or local laws o dinances in connection with the
purposes of the entry nt the Premises and, while on the
Premises, will comply wi h 11 applicable laws, including (but
not limited to) any law , egulations, standards, and permit
requirements relating o environmental pollution or
contamination or to occu a ional health and safety. Landlord
will indemnify and defe d enant against any and all claims
arising out of or con ec ed with any such violation, by
13
Landlord (or its employe , agents, or contractors) , of any
law, standard, regulation r permit requirement.
(viii) No work will be on or obstruction placed over or
within twenty (20) feet a erally of the centerline of any
track without notificatio o Tenant and receipt of assurance
from Landlord that arrang m ts have been made to furnish such
flagging service as Tena t eems necessary for protection of
railroad traffic. Such se ice shall not relieve Landlord
from any liability.
(ix) Any flagging pro ec ion or watchman service required
by Tenant for the safet f railroad operations because of
work being performed by L dlord (or its employees, agents,
or contractors) will be p vided by Tenant. The reasonable
cost thereof will be r ptly reimbursed by Landlord to
Tenant.
(x) The cost of any es or survey conducted in connection
with the entry onto t e remises will be borne solely by
Landlord.
ARTICLE 17 INDEMNI I ATION WAIVER AND RELEASE
17. 1 Indemnification. andlord and Tenant shall observe and
perform all of the terms an c nditions of Section 8. 1 and 8. 3 of
the Purchase Agreement with re pect to indemnification.
17. 2 Tenant's Waive nd Release. Tenant waives and
releases all claims against a dlord, its employees and agents with
respect to all matters for hi h Landlord has disclaimed liability
pursuant to the provisions of this Lease. Except for any damage
or injury to person or p perty on the Premises which is
proximately caused by or r s lts proximately from the negligence
or deliberate act of Landl r or its employees, Tenant covenants
and agrees that Landlord n its employees will not be liable,
responsible or in any way cc untable for any loss, injury, death
or damage (including cons ntial damages) to persons, property
or Tenant's business occa io ed by any acts or omissions of any
other tenant, oecupant or v' itor of the Premises, or from any
cause, either ordinary or e t aordinary, beyond Landlord's control.
17. 3 Landlord's Wa ve and Release. Landlord waives and
releases all claims again t enant, its employees and agents with
respect to all matters fo hich Tenant has disclaimed liability
pursuant to the provision f this Lease. Except for any damage
or injury to persons o roperty on the Premises which is
proximately caused by or re ults proximately from the negligence
or deliberate act of Ten nt or its employees, Landlord covenants
and agrees that, Tenant, i s employees and agents will not be
liable, responsible or in an way accountable for any loss, injury,
death or damage (includ'n consequential damages) to persons,
property or Landlord's bu i ss occasioned by any acts or omissions
of any other tenant, occ pa t or visitor of the Premises, or from
14
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any cause, either ordinary o extraordinary, beyond Tenant's
control.
ARTICLE 1 UIET ENJOYMENT
So long as Tenant ob e es and performs all the terms,
covenants and conditions of'� t is Lease on Tenant's part to be
observed and performed, Tena t ay peaceably and quietly enjoy the
Premises subject, neverthele s, to the terms and conditions of this
Lease and any matters affecti g itle to the Premises, and Tenant's
possession will not be distu be by anyone claiming by, through or
under Landlord. Tenant un e tands that inasmuch as Landlord
purchased the Premises from e ant pursuant to a quit claim deed
delivered in accordance with t terms of the Purchase Agreement,
Landlord does not warrant it 'tle to the Premises.
ARTICLE 19 EFFECT OF SALE
Landlord, its successor nd assigns, will be automatically
relieved of liability under h' Lease from and after the date of
any sale or conveyance of the Pr mises except liability which arose
prior to such date, and Te a will thereafter look solely to
Landlord's successor in inte e t to this Lease. This Lease will
not be affected by any such s le or conveyance, and Tenant will
attorn to Landlord's success r in interest to this Lease.
ARTIC E 20 DEFAULT
20. 1 Events of Defaul . The following events are referred
to collectively, as "Events o Default, " or individually, as an
"Event of Default: "
(a) This Lease r the Premises are taken upon
execution or by other proce 's f law directed against Tenant, or
are subject to any attachm nt at the instance of any claimant
against Tenant, and such atta h ent is not discharged within thirty
(30) days after the judgment to which it relates becomes final and
unappealable;
(b) Tenant fi es a petition in bankruptcy or
insolvency, or a petition fo eorganization or arrangement under
the bankruptcy laws of the ni ed States or under any insolvency
act of any state, or admits th material allegations of any such
petition by answer or oth rw se, or is dissolved, or makes an
assignment for the benefit o reditors;
(c) Involuntary p oceedings under any such bankruptcy
law or insolvency act or fo the dissolution of Tenant are
instituted against Tenant, r receiver or trustee is appointed
for all or substantially al o the property of Tenant, and such
proceeding is not dismissed o such receivership or trusteeship
vacated within sixty (60 ays after such institution or
appointment and Tenant is n t actively pursuing the vacation of
such action;
15
(d) Tenant breac e any of its other obligations under
this Lease, and such breach on inues for thirty (30) days after
notice by Landlord to Tenant r if such default cannot reasonably
be cured within such 30 day er od, Tenant fails to commence and
proceed diligently to cure su h breach within a reasonable time.
20.2 Landlord's Remedi s. If an Event of Default occurs,
then Landlord will have the r g , at its election, either:
(a) To give Ten nt written notice of intention to
terminate this Lease on the at of such given notice or on any
later date specified in the t ce, in which case Tenant's right
to possession of the Premise w'll cease and this Lease will be
terminated, except as to Tena t' liability, as if the expiration
of the term fixed in such not ce were the end of the Term of this
Lease; or
(b) After demand a d notice, to reenter and take
possession of the Premises or an part of the Premises, repossess
the same, expel Tenant and tho e laiming through or under Tenant,
and remove the effects of both or either, using such force for such
purposes as may be necessary, it out being liable for prosecution,
without being deemed guilty of a manner of trespass, and without
prejudice to any remedies for am unts payable under this Lease or
preceding breach of covenants or conditions.
20. 3 Dama es U on Defa lt Tn an Event of Default, Tenant
will remain liable to Landlord , fo damages in the amount raecessary
to compensate Landlord for all th detriment proximately c4used by
Tenant's failure to perform i s obligations under this Lease or
which in the ordinary course f hings would be likely to result
from such failure; except that i the event of Tenant's holdover,
the liquidated damages provisi n in Article 13 herein will apply.
20.4 Cumulative Remedi s. Suits for the recovery of the
damages set forth in Section 2 .3 may be brought by Landlord, from
time to time, at Landlord's e ec ion, and nothing herein will be
deemed to require Landlord to wa t the date whereon this Lease or
the Term of this Lease would a e expired had there occurred no
Event of Default. Each right a d emedy provided for in this Lease
will be cumulative and will be in addition to every other right or
remedy provided for in this Le s or now or hereafter existing at
law or in equity or by statut o otherwise, and the exercise or
beginning of the exercise by an lord of any one or more of the
rights or remedies provided fo i this Lease or now or hereafter
existing at law or in equity y statute or otherwise will not
preclude the simultaneous or 1 te exercise by Landlord of any or
all other rights or remedies p ov'ded for in this Lease or now or
hereafter existing at law or i ' e ity or by statute or otherwise.
All costs incurred by Landlord i connection with collecting any
amounts and damages owing by T na t pursuant to the provisions of
this Lease or to enforce any r ision of this Lease, including
reasonable attorneys' fees fro t e date any such matter is turned
1
over to an attorney, wheth r or not one or more actions are
commenced by Landlord, will 1 be recoverable by Landlord from
Tenant.
ARTICLE 1 MISCELLANEOUS
21. 1 No Construction 'nst Draftin Part . Landlord and
Tenant acknowledge that each of them and their couns�l have had an
opportunity to review this a e and that this Lease will not be
construed against Landlord e ly because Landlord has prepared
it.
21.2 Time of the Ess nc . Time is of the essence of each
and every provision of this e se.
21.3 Recordation. Te a may record a short form memorandum
of this Lease upon the prior r tten consent of Landlord which will
not be unreasonably withhel .
21.4 No Waiver. The w iver by Landlord of any agreement,
condition or provision cont in d in this Lease will not be deemed
to be a waiver of any subs nt breach of the same or any other
agreement, condition or prov' s on contained in this Lease, nor will
any custom or practice whic m y grow up between the parties in the
administration of the terms of this Lease be construed to waive or
to lessen the right of Land o d to insist upon the performance by
Tenant in strict accordance w'th thp terms of this Lease.
21.5 Limitation on R c rse. Tenant specifically agrees to
look solely to Landlord's i te est in the Premises for the recovery
of any judgments from Landl r arising under this Lease as opposed
to any judgments arising n r the Purchase Agreement or under
other instruments or circu s nces. Landlord (and its officials
and employees) will neve e personally liable for any such
judgments. The provisions on ained in the preceding sentences are
not intended to limit, and i 1 not limit any right that Tenant may
have to obtain injunctive el 'ef against Landlord.
21.6 Esto el Certi i ates. At any time and from time to
time but on not less than e business days prior written request
by Landlord, Tenant will e ecute, acknowledge and deliver to
Landlord, promptly upon re e t, a certificate certifying (a) that
this Lease is unmodified a d 'n full force and effect or, if there
have been modifications, th t this Lease is in full force and
effect, as modified, and s ating the date and nature of each
modification, (b) the date i any, to which any sums payable under
this Lease have been paid, ( ) that no notice has been received by
Landlord of any default hi h has not been cured, except as to
defaults specified in sai c rtificate, and (d) such other matters
as may be reasonably requ st d by Landlord. Any such certificate
may be relied upon by a y prospective purchaser, mortgagee or
beneficiary under any dee trust of the Premises.
17
21.7 Waiver of Jur T ia . Landlord and Tenant waive trial
by jury in any action, procee i or counterclaim brought by either
of the parties to this Lea ' e against the other on any matters
whatsoever arising out of or in any way connected with this Lease,
the relationship of Landlord an Tenant, Tenant's use or occupancy
of the Premises, or any oth laims (except claims for personal
injury or property damage) , a d any emergency statutory or any
. other statutory remedy. �
21.8 Notices. Any no ice, request, demand, consent,
approval or other communicat o required or permitted under this
Lease will be in writing and il be deemed to have been given when
personally delivered or del v ed by the United States Postal
Service to the party for who i is intended at the addresses set
forth for Landlord and Tenan espectively in Article 1 of this
Lease. Either Landlord or Te ant may change its address for
purposes of receipt of any s ch communication by giving ten (10)
days prior written notice of uc change to the other party in the
manner prescribed above.
21.9 Landlord's Perfo a ce of Tenant's Covenants. If
Tenant will at any time fail t pay any Tax or other charge in
accordance with Article 4 an rticle 5 within the time therein
permitted, or to pay for or m in ain any of the insurance policies
provided for in Article 6 i in the time permitted in such
Articles, then Landlord, aft r en (10) days' written notice to
Tenant (or, in case of any em rg ncy, upon such notice or without
notice, as may be reasonable nd r the circumstances) and without
waiving or releasing Tenant ro any obligation of Tenant under
this Lease, may, but will not e required to pay such Tax or other
charges payable by Tenant pur u nt to the provision of Article 4
or Article 5, or pay for an aintain such insurance policies
provided for in Article 6.
All sums so paid by La d rd and all costs and expenses
incurred by Landlord in connec io with the performance of any such
act (together with interest on s h sums from the respective dates
of Landlord's making of each s ch payment or incurring of each such
cost or expense at the Prime at ) will become payable by Tenant
to Landlord on demand. Landlo d will not be limited in the proof
of any damages which Landlord ay claim against Tenant arising out
of or by reason of Tenant's f il re to provide and keep in force
insurance as aforesaid, to the a ount of the insurance premium or
premiums not paid or incurred y Tenant and which would have been
payable upon such insurance, b t andlord will also be entitled to
recover as damages for such b e h, the uninsured amount of any
loss (to the extent of any defi i ncy in the insurance required by
the provisions of this Lease) , a ges, costs and expenses of suit,
including attorneys' fees, suff r d or incurred by reason of damage
to, or destruction of, the Pr i es, occurring during any period
which Tenant will have failed o eglected to provide insurance as
aforesaid.
1
21. 10 Severabilitv. If an provision of this Lease will
prove to be illegal, invalid r nenforceable, the remainder of
this Lease will not be affec ed thereby, and in lieu of each
provision of this Lease that is il egal, invalid or unenforceable,
a provision will be added as a p rt of this Lease as similar in
terms to such illegal, invalid ' o unenforceable provision as may
be possible and be legal, vali a d enforceable.
21. 11 Written Amendment R ired. No amendment, alteration,
modification of or addition to 'th Lease will be valid or binding
unless expressed in writing an s gned by the party or parties to
be bound.
21. 12 Entire Agreement. This Lease and the Purchase
Agreement contain the entire ag e ent between Landlord and Tenant
and may be amended only by ub equent written agreement. No
promises or representations, ex e t as contained in this Lease and
the Purchase Agreement, have ee made to Tenant respecting the
condition of the Premises.
21. 13 Captions. The capt o of the various Articles of this
Lease are for convenience on nd do not necessarily define,
limit, describe or construe th c ntents of such Articles.
21. 14 Notice of Landlor 's Default. In the event of any
alleged default in the obliga io of Landlord under this Lease,
Tenant will deliver to Landlor ritten notice and Landlord will
have thirty days following rec ip of notice to cure said alleged
default or, in the event the a le ed default cannot reasonably be
cured within said thirty day er'od, to commence action to cure
said alleged default. A copy f said notice will be sent to any
holder of a mortgage or other e� c mbrance on the Premises of which
Tenant has been notified in wri i , and such holder will also have
the same time periods to cure u alleged default.
21. 15 Authoritv. Tenant a the party executing this Lease
on behalf of Tenant represen o Landlord that such party is
authorized to do so by requisi e ction of the board of directors,
or partners, as the case may b , nd agree upon request to deliver
to Landlord a resolution or si i r document to that effect.
21.16 No Broker. Tenan epresents and warrants that it
neither consulted nor negotia ed with any broker or finder with
regard to the Premises. Tena t agrees to indemnify, defend and
save Landlord harmless from a d against any claims for fees or
commissions from anyone with ho Tenant has dealt in connection
with the Premises or this Leas .
21. 17 Governing Law. T i Lease will be governed by and
construed pursuant to the laws o the State in which the Premises
are located.
1
21. 18 Force Maieure
(a) Landlord wil ave no liability to Tenant, nor
will Tenant have any right erminate this Lease or assert a
claim of partial or total act al or constructive eviction, because
of Landlord's failure to per o any of its obligations in the
Lease if the failure is due 'n art or in full to reasons beyond
Landlord's reasonable control 'n luding without limitation, strikes
or other labor difficultie , inability to obtain necessary
governmental permits and appr v ls (including building permits or
certificates of occupancy) unavailability or scarcity of
materials, war, riot, civil ns rrection, accidents, acts of God
and governmental preemptio 'n connection with a national
emergency. If Landlord fail o perform its obligations because
of any reasons beyond Landl r 's reasonable control (including
those enumerated above) , the pe iod for Tenant's performance will
be extended day for day for t e uration of the cause of Landlord's
failure.
(b) Tenant will h ve no liability to Landlord, nor
will Landlord have any righ t terminate this Lease because of
Tenant's failure to perform it obligations under this Lease, if
Tenant's failure is due to r asons beyond Tenant's reasonable
control, including, without 'li itation, those items set forth in
subparagraph (a) above. If T n nt fails to perform its obligations
because of any such reasons, th period for Landlord's performance
will be extended day for d y for the duration of the cause of
Tenant's failure.
(c) Notwithsta i g subsections 21. 18 (a) or (b) above,
this Section 21. 18 is not a 1 cable to: (i) Tenant's obligation
to vacate the Premises on or e ore July 31, 1990 and (ii) Tenant's
obligation under Article 3 herein to pay $2000 per day as
liquidated damages if Ten nt does not completely vacate the
Premises for any reason on or before the Expiration Date; these
obligations are absolutely in ing on Tenant and are essential to
the transactions contempla e by this Lease and the Purchase
Agreement.
21.19 Bindina Effect The covenants, conditions and
agreements contained in th s Lease will bind and inure to the
benefit of Landlord and e ant and their respective heirs,
distributees, executors, a i istrators, successors, and, except
as otherwise provided in th s Lease, their assigns.
21.20 Priorit of Pu ch se A reement. If any provision of
this lease is inconsistent w' h or contrary to any provision of
the Purchase Agreement, the P rchase Agreement shall control.
20
Landlord and Tenant h ve executed this Lease as of the day
and year first above writte .
LANDLORD:
CITY OF SAINT PAUL
By:
Its: Mayor
APPROVED AS TO FORM ON BEHAL By:
OF THE CITY ATTORNEY: Eugene Schiller
Its: Director of Financial
Oppenheimer Wolff & Donnelly and Management Services
Suite 1700
First National Bank Building
Saint Paul, Minnesota 55101 By:
A1 Olson
Its: City Clerk
TENANT:
SOO LINE RAILROAD COMPANY,
a Minnesota corporation
By:
Its•
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing instrument wa acknowledged before me this
day of , 198 , y as
of the City o S int Paul, a municipal corporation
under the laws of the State o M'nnesota.
My Commission expires
[ S E A L J
Notary Public
2
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STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing instrume t as acknowledged before me this
day of , 1989, b as
of So ine Railroad Company, a Minnesota
corporation. �
My Commission expires
[ S E A L ]
Notary Public
22
ERHIBIT C
RELEASE
THIS IS A LEGAL DOCUMENT IC AFFECTS YOUR LEGAL RIGHTS. READ IT
CAREFULLY BEFORE YOU SIGN IT. IF YOU DO NOT UNDERSTAND IT, YOU
SHOULD CONSULT AN ATTORNEY
DEFINITIONS•
The following definit'o s are used in this document:
"this agreement" mea his document
"injury" means any nj ry or harm to person or property,
including injury or which results in death
"Owner" means City o S int Paul
"Property" means lan �, uildings, facilities, equipment, and
any other property ow e leased, or used by Soo Line Railroad
Company
"Soo Companies" mea s the following companies and their
employees, agents, b idiaries, and affiliated companies:
Soo Line Corporation oo Line Railroad Company, Tri-State
Land Company, Tri-St t Management Company, Milwaukee Motor
Transportation Compa y, and Hiawatha Transfer Company
"your heirs" means y r family, any other heirs you may have,
and any person resp n ible for administering any of your
property during your li e or after your death
PERMIT•
Soo Companies give o permission to enter and be on the
Property at
for the purpose of The
permission granted to yo n this agreement is limited to the
following period of time starting at m. on ,
19_, and ending at . on , 19_ You may not
transfer or assign this p ission to anyone else. �
RELEASE•
In return, you and u heirs release the Soo Companies and
the City of Saint Paul fr m any responsibility or legal liability
arising from any injury t ou or your property that occurs while
you are on the property, 'an this is true even if that injury is
caused (in whole or in pa ) by the negligence of the Soo Companies
or of the City of Saint P ul. You also acknowledge that you
knowingly assume all risk� o injury to you or your property while
you are on the Property, an this is true even if that injury is
C-1
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.
caused (in whole or in part) y he negligence of the Soo Companies
or of the City of Saint Pau . Finally, you agree that you have
read and understood this a r ment and that you have had an
opportunity to consult with n ttorney.
Date: , 19_
SOO LINE RAILROAD COMPANY
type or print your name
By:
Its designated signatory your signature
STATEMENT OF WITNESS:
I know , I saw him/her sign this
agreement, and I state under p n lty of perjury that the signature
in the space marked "your sig at re" is his/her signature.
Date: , 19_
signature of witness
type or print name of witness
TABLE OF CO TENTS
Paae
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . 2
1. 1 Def initions . . . . . . . . . . . . . . 2
� ARTICLE II PURCHASE PRICE D AYMENT SCHEDULE . . . . . 5
2 . 1 Upon Closing . . . . . . . . . . . . . . . 5
2.2 Upon Vacating t�e roperty . . . . . . . . . . 6
2 . 3 Reimbursement f r elocation or Replacement
Costs . . . . . . . . . . . . . . . . . . 6
2 .4 Other Relocatio sts . . . . . . . . . . . . 7
2 . 5 Friendly Condem a ion . . . . . . . . . . . . 8
ARTICLE III TITLE AND SURV . . . . . . . . . . . . . . 8
3 . 1 Conveyance . . . . . . . . . . . . . . . . 8
3 .2 Cure of Title e cts . . . . . . . . . . . . 9
3. 3 Partial Assign e t and Assumption of NSP
Agreement; Pro a ion . . . . . . . . . . . . . 10
ARTICLE IV WARRANTIES; C VE ANTS; DOCUMENTS . . . . . . . 10
4 . 1 Seller's Repr s tations and Warranties . . . 10
4 .2 Purchaser's R p esentations and Warranties . . 15
4 . 3 General Repre e tation . . . . . . . . . . . . 16
4 .4 Purchaser's v nant . . . . . . . . . . . . . 16
4 .5 Seller's Cov na ts . . . . . . . . . . . . . . 16
4 . 6 Delivery of oc ments . . . . . . . . . . . . 18
ARTICLE V CONDITIONS P E DENT TO CLOSING . . . . . . . 18
5. 1 Conditions urchaser's Obligations to
Close . . . . . . . . . . . . . . . . . . 18
5.2 Conditions .o• eller's Obligations to
Close . . . . . . . . . . . . . . . . . 19
5. 3 Failure of o. ition . . . . . . . . . . . . . 20
ARTICLE VI CLOSING . . . . . . . . . . . . . . . . . 20
6. 1 Closing . . . . . . . . . . . . . . . . 20
6.2 Delivery A te Closing . . . . . . . . . . . . 22
ARTICLE VII PRORATIONS OSTS AND EXPENSES;
ADJUSTMENT FTER CLOSING . . . . . . . . . . 22
7. 1 Property ax s and Assessments . . . . . . . . 22
7.2 Operating Ex enses . . . . . . . . . . . . . . 22
7 . 3 Capital E p ditures . . . . . . . . . . . . . 23
7 .4 Costs and E enses . . . . . . . . . . . . . . 2 3
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ARTICLE VIII ADDITIONAL RIGHT D OBLIGATIONS
AFTER CLOSING . . . . . . . . . . . . . . 23
8. 1 Seller's Right t L ase Property . . . . . . . 23
8.2 Seller's Obligat''on to Vacate the Property . . 25
8. 3 Remediation of P op rty . . . . . . . . . . . 25
ARTICLE IX REMEDIES AND TE IN TION . . . . . . . . . . . 26
9. 1 Default by Selle . . . . . . . . . . . . . 26
9.2 Default by Purch se . . . . . . . . . . . . . 26
9. 3 Termination beca se of Title Defects . . . . . 27
9.4 Other Terminatio . . . . . . . . . . . . . 27
ARTICLE X CONDENINATION AND DE TRUCTION . . . . . . . . . 27
10. 1 condemnation . . . . . . . . . . . . . . . . 27
10. 2 Destruction . . . . . . . . . . . . . . . . 28
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . 28
11. 1 Arbitration . . . . . . . . . . . . . . . . 28
11.2 Notices . . . . . . . . . . . . . . . . . 28
11. 3 Attorneys' Fees• . . . . . . . . . . . . . . 29
11.4 Real Estate Comm s ions . . . . . . . . . . . 29
11.5 Survival . . . . . . . . . . . . . . . . . 30
11. 6 Entire Agreement . . . . . . . . . . . . . . 30
11.7 Paragraph Headin s . . . . . . . . . . . . . 30
11.8 Binding Effect . . . . . . . . . . . . . . 30
11.9 Law of the Forum . . . . . . . . . . . . . . 30
11. 10 Waiver . . . . . . . . . . . . . . . . . . 30
11. 11 As s ignment . . . . . . . . . . . . . . . . 3 0
11. 12 Time of the Esse c . . . . . . . . . . . . . 30
11. 13 Counterparts . . . . . . . . . . . . . . 30
11. 14 Further Assuranc s . . . . . . . . . . . . . 31
11. 15 Future Correspo e ce. . . . . . . . . . . 31
11. 16 No Third Party n ficiaries . . . . . . . . . 31
11. 17 Memorandum of P c ase Agreement . . . . . . . 31
EXHIBITS
Exhibit A Legal descrip io of Warner Road
Exhibit B Seller's List of Contracts Affecting the
Property
Exhibit C Seller's List of Hazardous Materials
Exhibit D Lease Agreeme t
Exhibit E FIRPTA Certif'ca e
Exhibit F Memorandum of Pu chase Agreement
Exhibit G Form of Quitc ai Deed
Exhibit H Form of Opini n f Seller's Counsel
Exhibit I Form of Opini n f Purchaser's Counsel
i
PURCHAS A REEMENT
THIS PURCHASE AND RELOCATI N GREEMENT ("Agreement") is made
this day of , 1989, by and between SOO LINE
RAII�ROAD COMPANY, a Minnesota c rp ration ("Seller") , and the CITY
OF SAINT PAUL, a municipal corp ra ion under the laws of the State
of Minnesota ("Purchaser") .
RE IT LS
This Agreement is made wit espect to the following facts:
A. Seller is the owner of an intermodal facility, certain
improvements and approximatel 9.03 acres of real property
commonly known as the Soo Line s arner Road intermodal facility
located in the City of Saint Pa 1, County of Ramsey, State of
Minnesota, legally described n Exhibit A attached hereto and
incorporated by reference herei .
B. Purchaser desires o cquire the real property known
as the Warner Road intermodal f ility in order to continue to
timely develop the Mississippi i rfront near downtown Saint Paul
as part of the Great River Roa P oject.
C. Seller and Purchase esire to enter into an agreement
to sell the Property to Purchas r in accordance with the terms and
provisions of this Agreement.
D. In order to servi ce its intermodal needs in the
Minneapolis/St. Paul metropol 'ta area, Seller plans to either
construct a new intermodal fa il ty, or relocate its intermodal
equipment presently used at i s Warner Road facility to a
different existing intermodal a ility owned by Seller, or lease
intermodal services from a t ir party. In any case, Seller
intends to vacate the Proper y s soon as reasonably possible
following Closing but in no ca e ater than July 31, 1990.
AG EE ENT
NOW, THEREFORE, in consid ra ion of the promises, agreements,
representations and warranties c ntained herein, the sufficiency
of which consideration is h r y acknowledged by Seller and
Purchaser, Seller hereby agree t sell the Property to Purchaser,
and Purchaser agrees to purcha e he Property from Seller, on the
following terms and conditions a d Seller and Purchaser do hereby
agree as follows:
ART C I
DEFI I IONS
1. 1 Definitions. The fo lowing terms, as used herein,
shall have the following meani gs
"Authorities" means any o rnmental or quasi-governmental
body or agency having jurisdi i n over the Property, including,
without limitation, the federa g vernment, the FHWA, the TRB, and
the ICC, and the state, the ci y and the county in which the
Property is located.
"Billboard Agreements" e ns leases, licenses, permits,
easements, rights of way and r ements that permit the existence
of any sign, billboard or po ter on the Property, whether
presently used for advertisin o not.
"BN" means the Burlingto N rthern Railroad Company.
"Cleanup Plan" means Pur a er's plan to remediate or contain
any known environmental con a ination or pollution placed or
located on the Property, as p o ided in Section 8. 3 herein.
"Closing" and "Closing D t " mean the date as provided under
Section 6. 1 herein.
"Commitment" means a co i ment to insure the Land issued by
the Title Insurance Company f innesota on the Closing Date.
"Day(s) " means a c le dar day(s) , unless otherwise
specifically provided.
"Deed" means the quitcl i deed that Seller shall deliver to
Purchaser at Closing, substa t ally in the form of that attached
hereto as Exhibit G.
"Default" means any co d tion or event that constitutes a
default under this Agreement.
"Documentation" means w itten requests duly executed on
behalf of Seller, and proj t cost certifications, all of which
shall be in form and subst n satisfactory to the FHWA and to
Purchaser (i) specifying t e ses to which the payment will be
put; (ii) certifying suc mounts to be currently payable
(excluding withholdings) fo ctual costs which are permitted by
federal regulations and F A requirements and with respect to
which no prior request has b n made; (iii) certifying that the
request is limited to an a unt equal to the costs actually
incurred and owing by Selle o the date of such request less the
amount of prior advances; an (iv) stating that no Default or
event which would constitut efault has occurred under the terms
hereof.
2
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"Environmental Control En in er" means the position occupied
by Mr. Robert J. Kale and any t er person hereafter employed by
the Seller in the same or a su st ntially similar position.
"FHWA" means the Federal ig way Administration.
"FIRPTA Certificate" mean t e certificate, substantially in
the form of the certificate a t ched hereto as Exh�ibit E, that
Seller shall deliver at Closin p rsuant to Section 6. 1(d) , which
is required by the Foreign Inv st ent in Real Property Tax Act of
1980.
"Ground" means the Land, e cluding buildings, trackage and
other improvements.
"Hazardous Material (s) " m ans any substance, including,
without limitation, any as es os, formaldehyde, radioactive
substance, hydrocarbons, i d strial solvents, flammables,
explosives, and any hazardous su stance or toxic material, which
could presently or at any ti e in the future cause a material
detriment to or materially im ai the value or beneficial use of
the Property, or constitute o c use a material health, safety or
environmental hazard on or to t e Property or to any person who
may enter on the Property or hi h may require remediation at the
behest of any governmental ag �nc .
"ICC" means the Intersta e ommerce Commission.
"Lease Agreement" an "Lease" mean the agreement,
substantially in the form o e agreement attached hereto as
Exhibit D, that is to be ent r into between the Purchaser and
the Seller pursuant to Sectio 8. 1 herein.
"Licenses and Permits" m a s (i) all licenses, permits, land
use permits, construction p its, certificates of occupancy,
environmental permits, appro ' a , dedications, subdivision maps
and entitlements issued, ap o ed or granted by Authorities in
connection with the Property; ( i) any and all development rights
and other intangible rights, itles, interests, privileges and
appurtenances owned by Seller a in any way related to or used in
connection with the Property nd (iii) all licenses, consents,
easements, rights of way a d approvals required from private
parties to make use of uti i ies and to insure vehicular and
pedestrian ingress and egres the Property. However, it does
not include any such documen s to the extent they pertain solely
to Seller's railroad operati ns which do not affect the Ground.
"NSP Agreement" means a certain Pole and Wire Agreement
dated October 2, 1956, by an b tween the Chicago, Milwaukee, St.
Paul and Pacific Railroad Co pany ("Milwaukee") and Northern
States Power Company ("NSP' ) , as supplemented by Supplemental
Agreement dated August 1, 19 3 by and between the Milwaukee and
NSP.
3
"Occupancy Period" means t e period of time beginning with
the date of this Agreement a nding at the termination of
Seller's leasehold occupancy of h Property.
"Possession Delivery Date" m ans the date on which Seller
delivers actual possession of he Property, in its entirety, to
. Purchaser. �
"Property" means:
(a) The real prope ty legally described in Exhibit A,
together with all easem t , rights of way, privileges,
appurtenances, oil, gas an 'neral and other rights, if any,
all right, title and inte e , if any, of Seller in and to
any land lying in the be f any street, road or avenue,
opened or proposed, publi r private, within or adjoining
the boundaries of said r al property, and all right, title
and interest of Seller i a d to any award in condemnation
hereafter made or to b ade in lieu thereof (but not
including the considerat on payable to Seller pursuant to
this Agreement) and in an any unpaid award for damage to
the Improvements, as her in fter defined, or the said real
property (collectively, t e "Land") ;
(b) The existing b ilding and other improvements,
structures, railroad t a kage, railroad ties, parking
facilities and fixtures pl ced, constructed, installed or
located on the Land, but sp cifically excluding the Seller's
double trailer building co lectively, the "Improvements") ;
(c) The interest of Seller in and to all site plans,
surveys, soil and substr u studies, architectural drawings,
plans and specifica io s, architects' certificates,
engineering plans and s u ies, landscape plans, and other
similar plans and st di s pertinent to ownership and
operation of the Improv m ts, if existing and in Seller's
possession or control a btainable through the exercise of
reasonable effort, th t relate to the Land or the
Improvements (the "Plans ') which Plans shall be delivered to
Purchaser pursuant to S ct on 4.6(b) herein;
(d) All "Licens s and Permits", which Licenses and
Permits shall be delive e to Purchaser pursuant to Section
4.6(aj herein; and
(e) Any and all ot er rights, privileges, development
rights and appurtenanc s owned by Seller and in any way
related to, or used in o nection with, the operation of the
Land or Improvements, e cept any rights to provide rail
service.
4
"Purchase Price" means the 'a unt of money as provided under
Section 2. 1 herein.
"SLC" means Soo Line Corpo at'on, a Minnesota corporation.
"Tank(s) " means a station ry device designed to contain an
accumulation of substances regu at d under federal, state or local
law and constructed of non a then materials that provide
structural support.
"Title Company" or "Mi e ota Title" means the Title
Insurance Company of Minnesota.
"To the best of Seller's k o edge" means the actual present
knowledge of Seller, Soo Line C rp ration and Seller's management
employees above the level of M a er (or its equivalent) and the
knowledge that Seller would be expected to have based on
examination of its files reg rd'ng the Property. Purchaser
understands that Seller acquire t e Property from the bankruptcy
estate of the Chicago, Milwauk e, St. Paul and Pacific Railroad
Company (the "Milwaukee") as pa t of an asset purchase involving
thousands of miles of trackage. urchaser also understands that
many of the files and records o ta'ned from the Milwaukee are not
indexed or catalogued and have t been assimilated into the files
and records of Seller. Purch se is also aware that Seller's
employees may not be particul rl familiar with the files and
records maintained by the Milwa ke , and this may be true even in
cases where such files and re o ds were catalogued or indexed
and/or have been assimilated in o eller's files and records. In
light of the foregoing, Selle ill not be considered to be
"expected to have" knowledge ba ed on an examination of the
Milwaukee's files and records e ce t to the extent that such files
and records are actually known n readily accessible to Seller's
Legal Department, Real Esta e Department, and Engineering
Department (which includes envi o ental control engineers) .
"TRB" means the Transporta io Regulation Board of the State
of Minnesota.
"Trimodal Lease" means th 1 ase agreement dated August 8,
1988 between Seller, as lessor, �'an Trimodal Inc. , as lessee.
ARTI L II
PURCHASE PRICE D AYMENT SCHEDULE
2 . 1 Upon Closina. On h Closing Date, subject to the
satisfaction of the terms a conditions contained in this
Agreement, Purchaser shall p y to Seller, by cashier's or
certified check, wire transfe r other immediately available
funds, Six Million Three Hundr inety-Six Thousand Six Hundred
Thirty-Eight Dollars ($6, 396,6 8) in exchange for a quit claim
deed to the Property and th atisfaction of the terms and
conditions contained in this g ement. Purchaser and Seller
5
agree that this payment is co p ised of: (a) Three Million Five
Hundred Twenty-Six Thousand h ee Hundred Thirty-Eight Dollars
($3 , 526, 338) as consideratio or the purchase of the Property
(the "Purchase Price") , and ( ) wo Million Eight Hundred Seventy
Thousand Three Hundred ol ars ($2 ,870, 300) as partial
cons�ideration for the relo at'on or replacement of Seller's
intermodal operations at the ar er Road facility and the expenses
associated with replacing th f nctions and services provided by
Seller's Warner Road intermo 1 facility. It is expressly agreed
that the portions of consider t' n described under clauses (a) and
(b) of the preceding senten e hall be paid in addition to the
amount described in Section 2 . 3 (b) and are not subject to the
reimbursement procedures d s ribed in Section 2.3 herein.
Reimbursement under Section . 3 herein is in no way contingent or
conditional upon Seller's us o expenditure of the consideration
described in clause (b) of i Section 2 . 1, it being understood
that such clause (b) con id ration is for expenses already
incurred by Seller and fo ther intangible expenses (i.e. ,
increased operating expenses in idental to the closure of Seller's
Warner Road intermodal faci i ) . The parties intend that the
additional consideration p ya le under Section 2. 3 shall be
available, upon the terms an s bject to the conditions of Section
2 . 3, in respect of any pre-F approved expense item (other than
such increased operating exp n s) hereafter incurred by Seller in
connection with replacing r relocating said Warner Road
intermodal operations.
2.2 U on Vacatin he Pro ert . If Seller completely
vacates the Property in it e tirety and the Lease Agreement is
terminated on or before mid i ht, July 31, 1990, Purchaser shall
pay Seller Two Hundred Fif y housand Dollars ($250,000) within
thirty (30) days after su 'h date. Such payment shall not be
subject to the reimbursemen ocedures set forth in Section 2.3 .
Seller shall forfeit the ri 'ht to receive this payment if, for any
reason, Seller does not c pletely vacate the Property by
midnight, July 31, 1990.
2.3 Reimbursement or Relocation or Re lacement Costs.
Purchaser and Seller shall o serve and perform their respective
obligations using the foll wi g procedure and in the exact order
as stated below:
(a) Prior FHW roval. Seller shall first submit
to the FHWA a written p oposal describing each expense item
planned to be incurr d by Seller in order to relocate or
replace the operation nd functions of Seller's intermodal
facility at Warner Ro d. Each such written proposal shall be
submitted to the FHW , and a copy delivered to Purchaser,
prior to incurring o p ying the cost of each expense item
for which reimburseme t ereunder is sought. Purchaser shall
use its reasonable ff rts to assist Seller in obtaining
timely FHWA approval. S ller shall not incur or pay any such
expense item unless n until the FHWA notifies Seller in
6
writing, with a copy to r haser, that the FHWA has approved
the proposed expense i 'em Upon receiving such written
approval from the FHWA, S ller may incur or pay for the
approved expense item an t en proceed to seek reimbursement
for such expenses in ac or ance with Section 2.3 (b) below.
If the FHWA does not app ov the proposed expense item on or
before September 30, 199 , subject to extension as further
provided herein, Purch se shall not be obligated to
reimburse Seller for tha rticular proposed expense item.
The September 30, 1990 da e escribed in this paragraph shall
be extended by mutual ag e ent of the parties in writing if
the FHWA concurs with th t rms of such extension and finds
that the proposed expens s ill continue to be eligible for
FHWA funding consistent it the terms of this Section 2.3.
Purchaser and Seller agr e that in the event a particular
expense item is incurre r paid before Seller receives
written approval from the F A, Seller shall have waived its
right to seek reimbur e nt from Purchaser for that
particular expense item. Pu chaser and Seller agree that the
decision by the FHWA re r ing whether to approve each of
Seller's proposed expens 'tems shall be made in the sole
discretion of the FHWA a d that, while Purchaser shall use
its reasonable efforts t ssist Seller in obtaining FHWA
approval, Purchaser in n w y guarantees that the FHWA will
approve all or any part f Seller's proposed expense items
for relocating or replaci g the operations and functions of
Seller's Warner Road inte o al facility.
(b) Reimbursement Proc du e. Within forty-five (45) days
after Purchaser's receipt of Documentation demonstrating, to
the satisfaction of the F A and Purchaser, expenses actually
incurred by Seller to rel ca e or replace the operations and
functions of Seller's in e odal facility at Warner Road,
Purchaser shall pay to Se l r such amounts requested up to,
but not exceeding, an agg eg te of Two Million Eight Hundred
Thirty Seven Thousand ' ive Hundred Forty Dollars
($2,837,540) . Purchaser ill cooperate with Seller in
preparing such Documentati n Such payments shall be made in
cash or by cashier's or e tified check, wire transfer or
other immediately availa le funds. Seller and Purchaser
agree that this reimburse e t is intended to be in lieu of
payments that might be r ired by or available under
applicable federal and sta e elocation benefits statutes and
regulations, and in consi er tion of the payments set forth
herein, Seller waives a y claim to all such relocation
benefits.
2.4 Other Relocation C st . Purchaser and Seller agree
that the aggregate payment for el er's relocation and replacement
expenses as provided under Sect'o s 2. 1 and 2.3 of this Agreement
fully and completely compensat s eller for all expenses it will
incur or, with the exercise o reasonable diligence, should
properly incur in connection wi h ither relocating the operations
7
of its Warner Road intermodal f cility, or investing in other
capital improvements and facili i that replace the functions of
its intermodal facility, or lea i the services of an intermodal
facility from a third party, a d such payments in the aggregate
represent bona fide and fairly e tiated limits on the amount of
such expenses.
2.5 Friendl Condemnati n. Purchaser may, at its option
and at any time prior to the s ession Delivery Date, commence
condemnation proceedings with r s ect to the Property in order to
submit this Agreement as a sti u ated settlement and/or to cure
any and all title defects with es ect to the Property. Purchaser
and Seller (if it is a party t such a proceeding) agree to
cooperate with each other so th t a prompt resolution to the
condemnation proceeding can be c ieved consistent with the terms
of this Agreement. Without 1 'mi ing the general effect of the
foregoing, Purchaser and Selle ree that: (i) the fair market
value of the Property and Sel e 's intermodal facility is not
greater than Three Million Five H ndred Twenty-Six Thousand Three
Hundred Thirty-Eight Dollars ( 3, 26, 338) , and (ii) the full and
reasonable relocation benefits o which Seller is entitled is not
greater than Five Million Nine u dred Fifty-Seven Thousand Eight
Hundred Forty Dollars ($5,957,8 0) .
ARTI III
TITLE ND SURVEY
3 . 1 Conveyance. On t e Closing Date, subject to the
satisfaction of the terms a d conditions contained in this
Agreement, Seller shall conv the Property to Purchaser by
quitclaim deed substantially i t e form of that attached hereto
as Exhibit G. Seller shall d i er to Purchaser at the Closing
Seller's form of quitclaim bill o sale for any personal property
that is included in the sale.
The Property shall be con ey d subject to: (a) a permanent
easement fifteen (15) feet in id h along the northerly boundary
of the Property that Seller ha 1 retain for the maintenance,
repair, renewal and replacemen f the existing retaining wall;
and (b) facts which would be d' c osed by a comprehensive survey,
rights and claims of parties i p ssession, rights of the public,
and easements, leases, licenses d permits. No later than seven
(7) days before the Closing, Se l shall disclose to Purchaser in
writing all rights and claims o p rties in possession, easements,
leases, licenses and permits wh c have been granted by Seller but
are not of record. Purchaser a object to any of these matters
that are not of record and may e inate this Agreement by giving
written notice to Seller at a y time before Closing, provided,
however, that Purchaser here y waives any objection to the
agreements listed in Exhibit B e eto.
Within ninety (90) days a er the Closing, Seller shall
deliver to Purchaser partial or f 1 releases or satisfactions, as
8
_ ��- i��
the case may be, of any mortg ge or deed of trust of Seller which
may appear of record as a li n gainst the Property, and Seller
shall indemnify Purchaser a d Title Company for any losses,
liabilities and expenses aris n out of Seller's failure to have
any such liens so released or sa isfied.
Within ninety (90) day fter the � Closing, any judgment
� against Seller which may app ar of record as a lien against the
Property shall be settled an atisfied by Seller if it has by
that time become final an nappealable, and Seller shall
indemnify Purchaser and Tit1e Co pany for any losses, liabilities
and expenses arising out of Se ler's failure to have any such
judgment lien so settled and t sfied. Seller's obligation under
this paragraph shall extend to any such judgment that becomes
final and unappealable more t an ninety (90) days after Closing if
the lien to which the judgmen r lates is of record on the Closing
Date.
Notwithstanding any othe rovision in this Agreement to the
contrary, immediately prior o the delivery of the Deed Seller
shall send notices of termina i n as to all Billboard Agreements.
In the event any Billboard A eement also includes any sign,
billboard or poster not loca e on the Property, said notice of
termination may be limited o he signs, billboards or posters
actually located on the Pro e ty. As soon as possible after
Closing, and in no event 1 te than Possession Delivery Date,
Seller shall remove or caus he removal of, at no expense to
Purchaser, all signs, bill oa ds and posters located on the
Property and all structures se to support the same; except that
Seller shall remove or cause t e removal of the sign located at
the south edge of the Propert ( n or near the portion of Property
that will be excluded from h premises to be leased by Seller
from Purchaser pursuant to h Lease Agreement) no later than
October 1, 1989.
3 .2 Cure of Title D e ts. Seller makes no warranty or
representation with respect he marketability or quality of its
title and is not under any ob i ation to furnish current abstracts
of title, title reports, or t't e insurance policies in respect of
the Property. Prior to lo ing, Seller agrees to use its
reasonable efforts to cure o the satisfaction of Minnesota
Title: (i) each of the exce ti ns listed as numbered Items under
Schedule B of the Commitment o Insure (Supplement No. 4) prepared
by Title Insurance Company of Minnesota ("Commitment") , except
items whereby rights or p iv leges were granted to Purchaser
(e.g. , easements in Purchase ' favor) and items ;
(ii) the fee ownership issu f third parties described in Item
3 under Schedule A of the o itment; and (iii) at Purchaser's
request, any additional exce ti ns to the Commitment that might be
added to any additional Su 1 ments to the Commitment prior to
Closing. With respect to c additional exceptions, Purchaser
may, prior to Closing, rais bjections to the marketability of
Seller's title. If Purchas r bjects to Seller's title, it must
9
give Seller notice prior to Clo in specifying the precise nature
of the alleged title defects. h notice must be accompanied by
evidence of the alleged defect , in the form of a copy of an
abstract of title or a tit' e company's preliminary title
commitment. If Purchaser fails t give proper or timely notice,
it should be deemed to have wai ed its right to object.
Except as set forth here n, Seller has no obligation or
responsibility whatsoever to cu ny title defect. Seller has no
obligation to incur out-of-pock t xpenses in connection with its
reasonable efforts to cure titl p oblems. If Seller is unable to
cure the specified defects, Purc a er may terminate this Agreement
by giving Seller notice of te in tion at any time prior to the
Closing, which notice shall st t that this Agreement is being
terminated by reason of Seller s ailure to cure title defects.
If Purchaser gives proper and i ly notice of termination, the
parties shall thereupon be rel 'e ed of all further obligations
under this Agreement.
Seller makes no representa i n or warranty of any kind with
respect to the Property, excep s otherwise expressly provided
herein. The sale of the Proper y ' s strictly on an "as is, where
is" basis.
3 . 3 Partial Assi nment an Assum tion of NSP A reement•
Proration. At the Closing, el er shall assign to Purchaser
Seller's right, title and inter s in and to a portion of the NSP
Agreement, and Purchaser shall s ume a like portion of Seller's
obligations and duties under t e NSP Agreement. The assignment
and assumption shall be effec iv from and after the Closing.
Prepaid rentals shall be prorat d etween Purchaser and Seller as
of the date of Closing, and Se 1 r shall pay to Purchaser a pro
rata portion of prepaid renta s within thirty (30) days after
Closing. The assignment and a sumption shall be as to that
portion of the electrical trans i sion line, transmission towers,
and appurtenances located with'n he boundaries of the Property.
Rentals shall be allocated betw e Seller and Purchaser under the
following formula: Purchaser ha 1 receive that portion of said
rentals which is in the same at o to the total amount of said
rentals as the linear feet of le tric transmission line located
on the Property bears to th otal linear feet of electric
transmission line under the NSP A reement, all measurements to be
made along the line connecting 'th centers of NSP's transmission
towers; Seller shall receive th emainder.
ART CL IV
WARRANTIES• CO EN TS• DOCUMENTS
4. 1 Seller's Re resen at ons and Warranties. As a
material inducement to Purchas � o enter into this Agreement and
to close the transaction cont m lated hereby, Seller warrants,
10
represents and covenants to a d for the benefit of Purchaser as
follows:
(a) Power. Sell r has the legal power, right and
authority to enter into h s Agreement and the instruments
� referenced herein, and t consummate the transactions
contemplated hereby.
(b) Re isite Ac i Other than approval by the
boards of directors of el er and SLC, which Seller shall
seek to obtain as soon as p ssible following the execution of
this Agreement, all re 'site action (corporate, trust,
partnership or otherwi e) has been taken by Seller in
connection with entering i to this Agreement, executing the
instruments referenced erein and consummating the
transactions contemplat ereby. Other than the TRB, no
consent or approvals o any tenant in common, partner,
shareholder, c�editor, 'nv stor, judicial or administrative
body, governmental auth r' y (including without limitation
the ICC) or other party 's required. If not approved by the
boards of directors of S 11 r and SLC on or before August 31,
1989, this Agreement sha 1 e null and void. The requirement
of approval by the boar s f directors of Seller and SLC is
for the benefit of both Se ler and Purchaser.
(c) Authoritv. The individual executing this
Agreement and the inst u nts referenced herein is a duly
elected officer of Sel er and, subject to approval of the
boards of directors pur a t to Section 4 . 1(b) , has the legal
power, right and actual a thority to execute this Agreement
on behalf of Seller an t bind Seller to the terms hereof
and thereof.
(d) Validitv. u ject to approval of the boards of
directors pursuant to S c ion 4.1(b) , this Agreement and all
documents required her by to be executed by Seller are and
shall be valid, legall b nding obligations of Seller.
(e) Conflicts. N ither the execution and delivery of
this Agreement and the ' d uments referenced herein, nor the
undertaking of the ob i ations set forth herein, nor the
consummation of the t a sactions herein contemplated, nor
compliance with the te s of this Agreement and the documents
referenced herein, con 1 ct with or result in the material
breach of any terms onditions or provisions of, or
constitute a material ef ult under, any bond, note, or other
evidence of indebte ne s or any contract, indenture,
mortgage, deed of st, loan, partnership contract,
cotenancy agreement, l a e or other contracts or instruments
to which Seller is a p r y or which affect the Property.
(f) Not a Fore' Person. Seller represents that it
is not a foreign pers s contemplated by the provisions of
11
the Foreign Investment in R 1 Property Tax Act of 1980 and
the 1984 Tax Reform Act, s mended.
(g) Actions Affe t' Seller. Seller has not
received any notice of a d oes not have any knowledge of,
claims or other proceedin s t law or in equity affecting the
Property, or in which Sel e is or will be a party by reason
of Seller's ownership o he Property. To the best of
Seller's knowledge, the e are no pending or threatened
attachments, execution r ceedings, assignments for the
benefit of creditor , insolvency, bankruptcy or
reorganization proceedin s hat will affect in any material
way Seller's ability t rform under the terms of this
Agreement.
(h) Governmental A tion. Seller has not undertaken
any plan or study, and t the best of Seller's knowledge
there is not any plan or s udy of any governmental or quasi-
governmental authority, ot er than Purchaser, which in any
way would materially af ec the use of the Property for its
intended purposes. To e best of Seller's knowledge, there
is not any existing, pr po ed or contemplated plan to widen,
modify or realign any t et or highway contiguous to the
Property other than pla s ontemplated by Purchaser.
- (i) Violations. eller has not received notice of
any violation of Gove mm �tal Regulations, as hereinafter
defined, relating to t e Property. As used herein,
"Governmental Regulati s shall mean any laws, ordinances,
rules, requirements, e olutions, policy statements and
regulations (including, w'thout limitation, those relating to
land use, subdivisio , zoning, environmental, toxic or
hazardous waste, occu a ional health and safety, water,
earthquake hazard redu ti n, and building and fire codes) of
Authorities, bearing o the construction, alteration,
rehabilitation, mainte a ce, use, operation or sale of the
Property. To the best o Seller's knowledge, the conveyance
of the Property to urchaser will not violate any
Governmental Regulatio s
(j ) Mechanic' iens. Seller has not had work
performed or material d livered to the Property which could
give rise to any m c anic's or materialmen's or other
statutory or common l ien against the Property or any part
thereof.
(k) Plans and S ecifications Etc. To the best of
Seller's knowledge, he Plans to be delivered to Purchaser
under the terms of th s greement are all of such Plans which
are within the posses i of Seller. To the best of Seller's
knowledge, the Plans n Licenses and Permits have been fully
paid for and are not s bject to any liens, encumbrances or
claims of any kind. T the best of Seller's knowledge, the
12
transfer and assignment o he Plans and the Licenses and
Permits to Purchaser do ot require the consent of third
parties, except as disclos d o Purchaser.
(1) No Other Ri ht . Other than the items listed in
Exhibit B hereto, and mat e s disclosed by the Commitment,
there are no contracts o a reements to which Seller is a
party affecting the Prope t . Neither Seller; nor to the
best of Seller's knowle g , any previous owner of the
Property, has sold, transf r d, conveyed or entered into any
contract regarding "air ri h s, " "excess floor area ratio" or
other development rights o restrictions relating to the
Property. Purchaser is aw re that Northern States Power
Company ("NSP") has an e ectric transmission line and
appurtenant facilities o he Land pursuant to the NSP
Agreement. Purchaser her b waives any title objections in
respect of the NSP Agreem nt.
(m) Hazardous Mat ri ls. Except as listed on Exhibit
C attached hereto and in o orated by reference herein, to
the best of Seller's know ed e, based on the actual knowledge
of, and information in t e iles and records maintained by,
Seller's Environmental on rol Engineer, and without any
other or further investig ti n by Seller, Seller has not (nor
has it expressly and kno 'n ly permitted any other person to
have) generated, manufa tu ed, stored (except storage in
connection within the o al course of rail shipments) ,
treated or disposed of y Hazardous Material on, into, or
under the Property, whic f r the purposes of this paragraph
shall include, without 1 mitation, subsurface soil and
groundwater.
Except as listed o Exhibit C attached hereto and
incorporated by referen e erein, to the best of Seller's
knowledge, based on the c al knowledge of, and information
in the files and recor s aintained by, the Environmental
Control Engineer, and w t ut any further investigation by
Seller, neither Seller n r any other person has installed or
placed any Tanks into or u der the Property.
Except as listed o Exhibit C attached hereto and
incorporated by referen e herein, to the best of Seller's
knowledge, based on the c ual knowledge of, and information
in the files and recor s maintained by, the Environmental
Control Engineer, and it out any further investigation by
Seller, Seller has n t received any notice that the
ownership, operation, u nd condition of the Property is in
violation of any feder , state or local law, ordinance or
regulation relating o industrial hygiene, Hazardous
Materials or environmen al protection.
(n) Indemnifica i Seller covenants and agrees
that, notwithstanding he Closing and the purchase of the
13
Property hereunder and r ga dless of any investigation at any
time made by or on behal o Purchaser, Seller will indemnify
and hold harmless Pur h ser against any loss, damage,
liability or deficien y (including without limitation,
reasonable attorneys' ee and other costs and expenses
incident to any suit ction, investigation or other
proceeding) arising out of or resulting from, and will pay
� Purchaser on demand t e full amount of any �sum which
Purchaser may pay or be om obligated to pay on account of,
(i) any inaccuracy in an r presentation or any breach of any
warranty made by Seller h rein or hereunder, and (ii) any
Federal, state, local or o her tax of any nature arising out
of any event or state of fa ts occurring or existing prior to
the Possession Delivery at , as defined herein, with respect
to the Property, except e 1 estate taxes which shall be pro
rated and paid in acco a ce with Section 7. 1 herein. In
addition, Seller will i de nify and hold harmless Purchaser
from, for and against a y costs or expense (including
reasonable attorneys' f e ) which Purchaser may suffer or
sustain in seeking to en or e the indemnification obligations
of Seller hereunder.
(o) Books Docum n ation and Records. To the best of
Seller's knowledge, a '1 instruments, documents, lists,
schedules and items re i ed to be delivered to Purchaser
hereunder will fairly pr s nt the information set forth in a
manner that is not misle di g, and will be true, complete and
correct in all material e pects on the date of delivery and
upon the Closing.
(p) Leases. S 11 r has not granted any leases,
subleases, occupancies o tenancies pertaining to the
Property that will remai n effect after the Closing, other
than: (i) leases that a e isted in the Commitment, (ii) the
Billboard Agreements th t are listed in Exhibit B hereto
(provided that Seller sh 1 have given notice of termination
of such Agreements and s all cause the removal of signs,
billboards and posters an structures supporting the same)
in accordance with Secti n 3. 1) and (iii) the Trimodal Lease
(provided that Seller h 11 have terminated the Trimodal
Lease effective not lat r than July 31, 1990) . Purchaser
acknowledges that the fo lo ing leases, subleases, tenancies,
and occupancies will re i in effect after Closing for part
or all of the Occupanc eriod, and it hereby waives any
title objection in res e t of the same (subject to the
provisions described i e preceding sentence) ; (i) the
Billboard Agreements th t are listed on Exhibit B hereto;
(ii) the Trimodal Lease (w ich at the Closing will become a
sublease of a portion o the property leased to Seller
pursuant to the Lease A re ment) ; (iii) the Lease Agreement
described in Section 8. l h reof, and (iv) the NSP Agreement.
4
(q) Contracts. To the best of Seller's knowledge,
there are no service or ai tenance contracts to which Seller
is a party, which, afte t e Closing, will be obligations of
the Purchaser or the Pr e ty.
4.2 Purchaser's Re r s ntations and Warranties. As a
material inducement to Selle t enter into this Agreement and to
close the transaction conte p ated hereby, Purchaser warrants,
represents and covenants to a d for the benefit of Seller as
follows:
(a) Power. Pur ha er has the legal power, right and
authority to enter int t is Agreement and the instruments
referenced herein, an to consummate the transactions
contemplated hereby.
(b) Re isite Ac ion. All requisite action,
including governmental ct'on, has been taken by Purchaser in
connection with enteri nto this Agreement, executing the
instruments reference herein, and consummating the
transactions contemplat d hereby. No consent of any tenant
in common, partner, sha eh lder, creditor, investor, judicial
or administrative body, go ernmental authority or other party
is required other than r m the FHWA and the Saint Paul City
Council which Purchas r shall seek to obtain as soon as
possible following exe t on of this Agreement.
(c) Authoritv. ubject to Saint Paul City Council
approval pursuant to ection 4.2 (b) , the individuals
executing this Agreem n and the instruments referenced
herein on behalf of P rc aser have the legal power, right,
and actual authority o bind Purchaser to the terms and
conditions hereof and he eof.
— (d) Validitv. S bject to Saint Paul City Council
approval pursuant to S c ion 4.2 (b) , this Agreement and all
documents required her by to be executed by Purchaser are and
shall be valid, legall inding obligations of Purchaser.
(e) Conflicts. N ither the execution and delivery of
this Agreement and th d cuments referenced herein, nor the
undertaking of the o li ations set forth herein, nor the
consummation of the ra sactions herein contemplated, nor
compliance with the te s of this Agreement and the documents
referenced herein, co fl 'ct with or result in the material
breach of any terms, conditions or provisions of, or
constitute a material e ault under, any bond, note, or other
evidence of indebte n ss or any contract, indenture,
mortgage, deed of r st, loan, partnership contract,
cotenancy agreement, ea e or other contracts or instruments
to which Purchaser is a arty.
15
� 9- /��
(f) Indemnificat'on Purchaser covenants and agrees
that, notwithstanding t losing and the purchase of the
Property hereunder, Pu c aser will indemnify and hold
harmless Seller agains ny loss, damage, liability or
deficiency (including, ithout limitation, reasonable
� attorneys' fees and othe sts and expenses incident to any
suit, action, investigat o or other proceeding) arising out
of or resulting from, an ill pay Seller on demand the full
amount of any sum which el er may pay or become obligated to
pay on account of any in cc racy in any representation or any
breach of any warranty m de by Purchaser herein or hereunder.
In addition, Purchaser w 11 indemnify and hold harmless
Seller from, for and ag in t any costs or expense (including
reasonable attorneys' e s) which Seller may suffer or
sustain in seeking to en o e the indemnification obligations
of Purchaser hereunder.
(g) FHWA Consen . The FHWA has consented to and
approved the terms of A ti le II of this Agreement.
4. 3 General Re resen a ion. No representation, warranty
or statement of Seller or rc aser in this Agreement or in any
document, certificate or sch d le furnished or to be furnished to
Seller or Purchaser pursuan ' h reto contains or will contain any
untrue statement of a materi 1 act or omits or will omit to state
a material fact necessary t make the statements or facts
contained therein not misl a ing. The truth and accuracy of
Seller's and Purchaser's ep esentations and warranties made
herein shall constitute a c n 'tion to the Closing (as elsewhere
provided herein) and shall ive, and shall not merge into, the
Closing and the recording o the deed in the real property
records. At Closing, Sel r and Purchaser shall each execute
certificates reaffirming t e r respective representations and
warranties contained herein a of the date of Closing, provided
that such certificate y reflect any changes to such
representations and warran ie of which Seller or Purchaser, as
the case may be, has become a re prior to Closing.
4 .4 Purchaser's Co n nt. To the extent that Purchaser
acquires actual knowledg rior to the Closing that any
representation or warranty o Seller or Purchaser contained in
Article IV is incorrect, Pu ch ser shall immediately disclose such
information in writing to S 1 er.
4 .5 Seller's Coven n s. As a material inducement to
Purchaser to enter into is Agreement and to close the
transaction contemplated h re y, Seller covenants to Purchaser as
follows:
(a) O eration of the Pro ert . Seller hereby agrees,
through and including th Possession Delivery Date and at the
Seller's sole cost an xpense, to (i) continue to maintain
insurance for the P o erty in a manner consistent with
16
prudent railroad indust y practice; (ii) satisfy all
obligations under the Le s ; and (iii) comply with all
Governmental Regulations (p ovided, however, that Seller
shall not be required to a any alterations, improvements
or additions to the Proper y, nor shall Seller be required to
perform any environmental c eanup or remediation except as
provided in Section 8. 1(c) ) .
(b) No Further En u rance. After the date hereof,
Seller shall not, and sh ll not consent to any request to,
sell, convey, option, m t age, deed in trust, encumber,
lease, contract to do a y of the foregoing or otherwise
convey, abandon, relinqui h, cloud, or encumber title to the
Property or any part the e f or contract to do any of the
foregoing, except with e prior written consent of
Purchaser. However, Sell r reserves the right to challenge,
in good faith, the bill o tatement of any person or entity
that provides materials r services (including utility
services) or performs ab r or work in respect of the
Property at Seller's requ s ; in the event of such challenge,
Seller shall not be r qu red to release or remove any
resulting mechanics' or at rialmen's lien (or similar lien)
until such lien is enf r d by a final and unappealable
judgment; once such jud en becomes final and unappealable,
the provisions of the f ur h full paragraph of Section 3.1
shall apply.
(c) Alterations. Unless required to preserve or
protect the Property, Se le will not make any alterations to
the Property, except a equired by the Lease Agreement.
Seller may remove its d uble trailer building from the
Property anytime before h date on which the Lease Agreement
is terminated.
(d) Pa ent of nv ices. Subject to Section 4.5 (a) ,
Seller has paid or wil p y in full, prior to delinquency,
all bills and invoices or labor, goods, materials, services
and utility charges of ny kind relating to the Property for
the period prior to the Cl sing.
(e) Changes. S 1 er shall promptly notify Purchaser
of any change in any c nd tion with respect to the Property
or of any event r circumstance which makes any
representation or warr n y of Seller under this Agreement
materially untrue or m' 1 ading.
(f) General C 'ea -U . Prior to the Possession
Delivery Date, Seller s all make a reasonable effort to
remove all of its perso a property, except railroad ties and
tracks, from the Prope t and to remove all debris, garbage
and other foreign mat er from the surface of the Property.
This Section 4 .5 (f) is no intended to impose upon Seller any
obligation to undertak r perform cleanup or remediation of
17
any environmental cont mi ant or pollutant except to the
extent such cleanup or r ediation is required by Section
8. 1(c) .
4. 6 Deliver of Docu en s. Not later than seven (7) days
prior to Closing, Seller s a 1 deliver to Purchaser all the
following information and do um nts in Seller's possession:
(a) True and co r ct copies of all of the Licenses
and Permits;
(b) True and c r ect originals or copies of the
Plans;
(c) True and co r ct originals or copies of all ad
valorem tax bills and r e ipts relating to the Property for
the two immediately pre ed'ng tax years; and
(d) True and co re t copies of all files and records
specifically pertaining t the Property of which Seller has
actual knowledge and w i are then in the possession and
control of Seller's Env r mental Control Engineer.
CLE V
CONDITIONS R EDENT TO CLOSING
5. 1 Conditions to Pu c ser's Obli ations to Close. Each
of the following shall be ondition precedent to Purchaser's
obligation to close its acqu s ' ion of the Property hereunder:
(a) At the Clo in , all of Seller's representations
and warranties shall b true and correct, or if the
representations and ar anties have been modified in
accordance with Sect on 4.4, the representations and
warranties, as modifie , re satisfactory to Purchaser, and
Seller shall have perf d within the time specified each
covenant which Seller i bligated to perform hereunder.
(b) At the Clos 'n , there shall be no encumbrance or
title defect or objecti n ffecting the Property except those
that are acceptable to chaser.
(c) At the C1 si g, all of BN's interest in the
Property as reflected 'n he Commitment shall be removed to
the satisfaction of Ti e Company and Purchaser.
(d) Purchaser ha 1 have obtained the unconditional
promise of Title Compa y o issue to Purchaser its standard
form ALTA owner's poli y, insuring marketable title to the
Property in Purchaser in the amount of the Purchase Price
attributable to the va ue of the Property, with deletion of
the standard printed ceptions, subject only to the
exceptions that Purcha e in its sole discretion agrees to
18
accept. Purchaser her y agrees to accept (and waives it
right to object to tit e on the basis of) the exceptions
identified in Section 3.2 f this Agreement.
(e) At the Closi g there shall be no material change
in the physical conditi n f the Ground, reasonable wear and
tear excepted and exce or improvements made pursuant to
� mutual agreement of the 'pa ties hereto.
(f) Seller sha l have continued the operation,
management and mainte n e of the Property in a manner
consistent with the ope at'on, management and maintenance of
the Property during the t elve months prior to Closing, and
otherwise in a manner re sonably consistent with existing
railroad industry stand rd for the operation, management and
maintenance of propert f a like character in the Saint
Paul, Minnesota area.
(g) Through the re sonable efforts of both Seller and
Purchaser, the FHWA sh 11 have approved and authorized this
Agreement and the eli ib lity of FHWA funds to reimburse
Purchaser for portions o federal payments to be made to
Seller for expenses p op sed to be incurred by Seller to
relocate or replace the o erations and functions of Seller's
intermodal facility at a er Road as provided in Section 2.3
herein.
(h) The Saint au City Council shall have approved
and authorized this greement and the transactions
contemplated herein.
(i) Seller sha l ave sent the notices of termination
required by the last p ra raph of Section 3. 1.
(j ) Purchaser h 11 have determined, in its sole
discretion, that the n ironmental risks to the Purchaser
from and after Closing ar acceptable to Purchaser, it being
understood that the ef ect of this condition is that
Purchaser has the un o itional right to terminate this
Agreement pursuant to e ion 9.4 in the event that it deems
such risks unacceptabl .
5.2 Conditions to S 1 r's Obli ations to Close. Each of
the following shall be a condition precedent to Seller's
obligation to close the sal f the Property hereunder:
(a) At the losing, all of Purchaser's
representations and wa r nties shall be true and correct, or
if the representation a d warranties have been modified in
accord with Section 4. , the representations and warranties,
as modified, are satis a tory to Seller, and Purchaser shall
have performed within h time specified each covenant which
Purchaser is obligate t perform hereunder;
19
(b) Seller's board o directors and the board of
directors of SLC shall h e approved and authorized this
Agreement and the transact'on contemplated herein;
(c) Through the re o able efforts of both Seller and
Purchaser, the FHWA shall a e approved and authorized this
Agreement and the eligib' i y _ of FHWA funds to reimburse
Purchaser for portions of f deral payments to be made to
Seller for expenses prop e to be incurred by Seller to
relocate or replace the op r tions and functions of Seller's
intermodal facility at War e Road as provided in Section 2.3
herein; and
(d) The Saint Pau 'ty Council shall have approved
and authorized this gr ement and the transactions
contemplated herein.
5.3 Failure of Conditi n If any condition specified in
Section 5. 1 or Section 5.2 i ot satisfied on or before the
Closing, the party whose pe formance is contingent upon
satisfaction of such condition m y, at its option, either:
(a) Waive such c ndition either at the time
originally established fo losing or at any time thereafter;
or
(b) Extend the d te by which such condition shall be
satisfied to a date o later than thirty (30) days
thereafter, which option m y be exercised only once by each
party; or
(c) Terminate th s greement at any time prior to the
complete cure or satisfa t' n of such conditions by the other
party, by written notice t reof to the other party, in which
event the parties sh l be relieved of all further
obligations hereunder.
ICLE VI
C SING
6. 1 Closina. The C1 s ' g of the purchase and sale of the
Property shall take place a e offices of Oppenheimer Wolff &
Donnelly, W-1700 First Bank B ilding, Saint Paul, Minnesota, at
11: 00 a.m. local time on T ur day, August 10, 1989, or at such
other later date as Seller a d urchaser shall mutually agree upon
in writing (the "Closing" or t "Closing Date") . At the Closing,
the following shall occur:
(a) Seller sha l deliver to Purchaser a quitclaim
deed, substantially in h form of Exhibit G attached hereto,
duly executed and ack ow edged by an authorized officer of
20
. �9- /��
Seller, conveying titl o the Land and Improvements to
Purchaser.
(b) Purchaser s l pay to Seller Six Million Three
Hundred Ninety-Six Thous n Six Hundred Thirty-Eight Dollars
� ($6, 396, 638) as provide i Section 2. 1.
(c) Seller shal deliver to Purchaser a "FIRPTA
Certificate" substantia ly in the form of Exhibit E attached
hereto and by this refe en e made part hereof.
(d) Seller and rehaser shall execute a Lease
substantially in the fo f Exhibit D attached hereto.
(e) Seller shal eliver to Purchaser Seller's form
of quitclaim bill of s l in respect of the Plans and the
Licenses and Permits.
(f) Seller shal ecute the Memorandum of Purchaser
Agreement substantially i the form of Exhibit F hereto.
(g) Seller sha 1 xecute and deliver to the Title
Company any mechanic's ie affidavits or other documentation
required by the Title C m any in connection with deletion of
the standard printed ex e ions, except that Seller shall not
be required to execut r deliver any such affidavit or
document which contai s provisions inconsistent with the
provisions of this Ag e ent, including Sections 3. 1, 3.2,
4. 1(p) and 4.5 (b) .
(h) Seller sha 1 xecute and deliver to Purchaser a
certificate, confirmin t at, subject to Section 4.3: (i) all
warranties and represe a ions contained in this Agreement or
otherwise furnished to P rchaser are true and correct as of
the Closing; (ii) all o ditions to Purchaser's obligations
to close as provided u er Section 5. 1 herein have been
satisfied on or before t e Closing Date; and (iii) Seller's
liability for matters c ntained in the certificate shall
survive the Closing an livery of the deed.
(i) Purchaser h 11 execute and deliver to Seller a
certificate confirming t at, subject to Section 4. 3: (i) all
warranties and represe t ions of Purchaser contained in this
Agreement are true an orrect as of the Closing; (ii) all
conditions to Seller's ob igations to close as provided under
Section 5.2 herein h v been satisfied on or before the
Closing Date; and (i `i) Purchaser's liability for matters
contained in such cer if'cate shall survive the Closing and
delivery of the deed.
(j) Seller sh 11 deliver to Purchaser an opinion of
counsel to Seller su s ntially in the form of Exhibit H
hereto.
21
(k) Seller and Pu chaser shall execute settlement
sheets reflecting the ad u tments and prorations provided for
herein.
(1) Purchaser s al deliver to Seller an opinion of
counsel to Purchaser su s antially in the form of Exhibit I
hereto.
(m) Seller shal liver to Purchaser documentation,
to the satisfaction of Title Company and Purchaser,
evidencing the remova f all of BN's interest in the
Property as required un e Section 5. 1(c) herein.
(n) Seller shal eliver to Purchaser copies of the
notices of termination e ired by Section 3 . 1 herein.
(o) Purchaser h 1 deliver to Seller the FHWA's
written consent and p roval of this Agreement, which
approval and consent sh 1 be in a form reasonably acceptable
to Seller and shall s ec' fically refer to, consent to and
approve Article II of i Agreement.
(p) Seller and u chaser shall execute and deliver to
each other duplicate i inals of a partial assignment and
assumption of the NS greement, all as contemplated by
Section 3 .3 , such part al assignment and assumption to be in
a form reasonably acce ta le to Seller and Purchaser.
6.2 Deliver After 1 sin . From time to time after the
Closing, all materials of a ever kind owned by Seller relating
to the design, constructio , evelopment, ownership, maintenance
and operation of the Pro er y, to the extent not previously
delivered to Purchaser and i hin thirty (30) days after written
request to Seller, shall b d livered to and become the property
of Purchaser, including, w'th ut limitation, the original copies
of the Plans, Licenses and P rmits and all keys relating to the
Property, properly identifi d. This Section 6.2 shall cease to be
of force and effect on De e er 31, 1991, except as to written
requests delivered to Sell rior to such date and time.
ICLE VII
PRORATIONS COSTS AND XP NSES • ADJUSTMENTS AFTER CLOSING
7. 1 Pro ert Taxe nd Assessments. Following the
Closing, payment and prora i n of property taxes and assessments
shall be governed by Artic e of the Lease.
7.2 O eratin Ex e s All utility and service charges
for electricity, heat a d air conditioning service, other
utilities, and other expen e incurred in operating the Property,
and any other costs incurr d n the ordinary course of business or
the management and operati n f the Property, shall be prorated on
22
an accrual basis. Seller shall p y all such expenses that accrue
prior to the Possession Deliv ey Date and, except as otherwise
provided in the Lease Agreemen , Purchaser shall be responsible
for all such expenses accruing n he Possession Delivery Date and
thereafter. To the extent pos i le, Seller and Purchaser shall
obtain billings and meter read ng as of the Possession Delivery
Date to aid in such prorations.
7.3 Ca ital Ex enditu es. All capital and other
improvements (including labor nd materials) which are performed
or contracted for by Seller at r rior to the Possession Delivery
Date will be paid by the Seller w'thout contribution or proration
from Purchaser.
7.4 Costs and Expenses urchaser and Seller shall each
pay one-half of: (a) all re iums for any endorsements to
Purchaser's title insurance pol 'c issued pursuant to Section 3.2;
(b) the Minnesota deed tax and o her similar transfer taxes; (c)
all document recording fees an e penses; (d) all sales and gross
receipts taxes and (e) all othe iscellaneous closing expenses of
Minnesota Title, including an e crow fees and costs. Seller
shall pay its share of pror ti ns. Purchaser shall pay the
premium for issuance of Purch se 's title insurance policy, and
Purchaser's share of proration . Purchaser and Seller shall each
pay all legal and professional 'fe s and fees of other consultants
incurred by it. All other cos s and expenses shall be allocated
between Purchaser and Seller in accordance with the customary
practice in Ramsey County, Min es ta.
ARTI VIII
ADDITIONAL RIGHTS AND O IGATIONS AFTER CLOSING
8. 1 Seller's Ri ht to e e Pro ert .
(a) Upon Closing, eller shall have the right to
retain possession of the r erty (excluding an area of land
specified in the Lease, i h area is required by Purchaser
to permit the constructi f a bypass road so that a sewer
outlet can be construct n the bank of the Mississippi
River; the Lease shall p ot ct Seller's right to use of the
trackage located in said a a during the term of the Lease
and shall provide that chaser shall pay the full and
reasonable cost of any re 1 'gnment of said track during said
term) as a tenant of t e Purchaser, upon the terms and
subject to the condition o the Lease Agreement, a copy of
which is attached hereto a Exhibit D and incorporated by
reference herein. Each p r y hereto shall execute the Lease
and agrees to be bound b t e terms of said Lease Agreement
upon Closing.
(b) The Lease s al be a "net lease" arrangement
pursuant to which the S o ine shall pay the costs of all
operating expenses assoc a ed with the Property, including
23
without limitation taxes ( o the extent they are payable
during the lease period, it being the intent to treat taxes
on a payable (as opposed t accrual) basis, and it further
being the intent to p rate taxes between Seller and
Purchaser as of the d e Seller vacates the Property) ,
utilities, insurance, re ai s and maintenance, but excluding
only expenses relating t the Purchaser's environmental
_ Cleanup Plan as provide i Section 8.3. The Lease shall
terminate on July 31, 19 0 nd, if Seller has not vacated by
that date, it shall be o li ated to pay Two Thousand Dollars
($2,000) per day to the r haser as liquidated damages until
Seller vacates the Pr p ty in its entirety. It is
recognized that this am n represents approximately a nine
percent (9�) annual c pi alization rate applied to the
$6, 396, 638 payment payab e t Closing pursuant to Section 2 . 1
of this Agreement, and it is agreed that this figure is a
reasonable estimate of he Purchaser's actual expenses that
it would incur as the r su t of a delay in Seller's vacating
the Property and tha Purchaser's actual damages are
difficult to ascertai because of the complex inter-
relationship among Purc a er's obligations under agreements
relating to the future e elopment of the Property. Except
as provided in Section 8 1(c) , Purchaser and Seller shall
each be liable for its wn acts or omissions during the lease
period; however, the Pu ch ser shall indemnify the Seller for
any damages incurred eller resulting from Purchaser's
failure to complete it C eanup Plan as provided in Section
8. 3 herein.
(c) Seller shal 'ndemnify and protect Purchaser from
all expenses (inclu in reasonable attorneys' fees) ,
liabilities and damage elating to any claims of personal
injury, property dam ge or environmental pollution or
contamination which a i e on or in connection with the
Property during the Oc upancy Period as the result of
Seller's negligence; p ov ded, however, that Seller shall not
under any circumstanc b responsible for removing any fuel
Tanks located on the P operty; and further provided that
Seller shall not be re ponsible for correcting any soil
conditions in the vici i of such tanks except to the extent
that such soil condit on arise during the Occupancy Period
as a direct result f the negligence of Seller in its
railroad operations n the Property during the Occupancy
Period.
(d) Purchaser sh 11 indemnify and protect Seller from
all expenses (incl d'ng reasonable attorneys' fees) ,
liabilities and dama es relating to any claims of personal
injury, property da a e, or environmental pollution or
contamination which ar se on or in connection with the
Property during th ccupancy Period as a result of
Purchaser's negligen .
24
8.2 Seller's Obli at'on to Vacate the Pro ert .
(a) Seller shal se all reasonable and good faith
efforts to vacate the P op rty before August 1, 1990.
(b) Notwithstan in any other provision herein to the
contrary, Seller shall ac te the Property, in its entirety,
on or before July 31, 9 . Seller's failure to vacate by
this date shall constit t a failure of a material covenant
under this Agreement a d a default by Seller as provided
under the Lease Agreeme t.
8. 3 Remediation of P o ert . Except as otherwise
expressly provided in Sect o 8. 1(c) of this Agreement with
respect to the Occupancy P ri d, as of the Closing, Purchaser
shall assume full responsibilit and liability for the remediation
or containment of any kn wn environmental contamination or
pollution theretofore placed o located on the Property and any
environmental contamination r pollution placed on the Property
after Closing and before Pur a er transfers, sells or conveys the
Property. Purchaser furthe grees that it shall, at its own
expense, prepare a clea up plan for such environmental
contamination or pollution "C eanup Plan") . Purchaser further
agrees that it shall use i s reasonable efforts to submit the
Cleanup Plan to the Minneso a Pollution Control Agency ("MPCA")
and to obtain expeditious ap ro al of the Cleanup Plan by the MPCA
and to expeditiously imple e t the Cleanup Plan at its own
expense; except that it s agreed that Purchaser, in its
discretion, may not commence fu 1-scale remediation or containment
activities until the Possess o Delivery Date because of Seller's
ongoing railroad operations on the Property during the Occupancy
Period. If Purchaser fails t roperly implement the Cleanup_Plan
to the satisfaction of the MP A, Purchaser shall indemnify and
hold Seller harmless for lia i ity, if any, arising directly from
Purchaser's failure to prop 1 implement the Cleanup Plan. As
used in this paragraph, "kno n" means the actual present knowledge
of the Purchaser and the k owledge that Purchaser would be
expected to have based upon an examination of the following: (i)
Seller's representations n warranties, as modified, if
necessary, in Seller's certi i ate delivered at Closing; (ii) the
Report dated January 23, 1 8 prepared by Braun Environmental
Laboratories, Inc. entitled " we-512 Pre-Purchase Environmental
Assessment, 30 Acre Soo Line Pr perty Along Warner Road, St. Paul,
Minnesota" which document is in orporated herein by reference; and
(iii) other environmental as es ments, studies and tests conducted
in respect of the Property b Purchaser or its contractors or
agents prior to the Closing.
Purchaser shall rele ' e Seller from liability for the
remediation or containment f ny environmental contamination or
pollution heretofore or h r after placed or located on the
Property.
25
�� ����
As of the Closing, Purch se shall assume full responsibility
for filling, capping, flushi g, removing, or otherwise handling
those Tanks (including buried f el Tanks) or water wells that are
known to Seller or that may e i t without the knowledge of Seller
on the Property, and shal assume full responsibility for
correcting soil conditions "n the vicinity of such Tanks; and
Purchaser shall indemnify a d rotect Seller from any and all
claims of personal injury, roperty damage, remediation or
containment expense, or other e ense arising out of or related to
the existence of such Tanks a wells (except any fines levied
because of Seller's failure t timely file any report of the
existence of such Tanks and el s that was required by law to be
filed with any local, stat r federal agency) , the filling,
capping, flushing, removal, r other handling of such Tanks and
wells, and the correction of s il conditions in the vicinity of
such Tanks. As of the Closi g, Purchaser shall have unencumbered
access to such Tanks and wells in order to complete the Cleanup
Plan; except that during th O cupancy Period Seller shall have
the right to continue the c stomary usage of such Tanks in
connection with its railroa erations on the Property unless
such Tanks are leaking.
T CLE IX
REMEDIES A D TERMINATION
9. 1 Default b Selle . If Seller fails to perform any of
the material covenants, agree e ts or obligations contained herein
to be performed by Seller, Pu chaser may, at its option on or
before the Closing, either:
(a) Terminate t is Agreement by giving written notice
to Seller of such termi at'on.
(b) Specificall force Seller's obligations under
this Agreement, in whi h event Seller shall be liable to
Purchaser, and Purchase hall be entitled to recover from
Seller, all Purchaser's a ages, and to pursue other remedies
to which Purchaser may e ntitled under law.
(c) Pursue any th r remedy or remedies available to
Purchaser at law or in 'ty.
9.2 Default b Purch s r. If Purchaser fails to perform
any of the material covenant , greements or obligations contained
herein to be performed by Pu 'ch ser, Seller may, at its option, on
or before the Closing, eithe :
(a) Terminate t is Agreement by giving written notice
to Purchaser of such te ' ation; or
(b) Terminate t is Agreement by giving written notice
to Purchaser of such t rm nation and sue for all damages to
which Seller may be ent t ed at law; or
26
(c) Pursue any h r remedy or remedies available to
Seller in law or at equ' y
9.3 Termination beca s of Title Defects. Except as
otherwise provided in Secti ns 3 . 1, 4.1(1) , 4. 1(p) and 5. 1(d) ,
Purchaser may, at its sole o i n, terminate this Agreement on or
before the Closing Date if h exceptions listed in the Title
Commitment, or other titl efects, are not cured to its
satisfaction. If this Agre e t is terminated pursuant to this
Section 9. 3, the parties h 11 be relieved of all further
obligations hereunder.
9.4 Other Terminatio '. This Agreement may be terminated
by the mutual agreement of t e parties hereto and it may be
terminated unilaterally by Pu c aser, by written notice to Seller,
if it deems the risks ref r ed to in Section 5. 1(j ) to be
unacceptable. If this Agre e t is terminated pursuant to this
Section 9.4, the parties h 11 be relieved of all further
obligations hereunder.
T CLE X
CONDEMNATI N ND DESTRUCTION
10. 1 Condemnation. I t e event that any condemnation of
all or any part of the Prop r y shall be pending or threatened
prior to or at the Closi g, Seller shall immediately give
Purchaser notice thereof and Pu chaser may, at its option, to be
exercised by notice given to Se ler at or before the Closing:
(a) Proceed wit he Closing notwithstanding such
condemnation, in whic vent all condemnation proceeds
already received, if any et of the costs of recovering such
condemnation proceeds, s a 1 be paid over to Purchaser at the
Closing and the right to' r eive any such proceeds which have
then not yet been recei �ed shall be assigned to Purchaser at
the Closing; or
(b) Terminate t i Agreement, in which event any
monies paid shall be re n ed to Purchaser and thereupon the
parties shall be rel e d of all further obligations
hereunder.
In the event of the commenc me t of any condemnation proceeding
involving the Property, or 'n the event that any condemnation
proceeding shall be threate ed against the Property, Purchaser
shall, at its option, be in lu ed in any negotiations regarding
the condemnation with t e condemning authority or any
representative thereof and sh 1 , at its option, have the right to
appear and take part in any c nd mnation proceeding. This Section
10. 1 shall not apply with r s ect to the friendly condemnation
that Purchaser may commence s rovided in Section 2.5 hereof or
7
with respect to the conside at on paid by Purchaser pursuant to
this Agreement.
10.2 Destruction.
(a) In the eve t that any damage or destruction
occurs to the Ground r any part thereof prior to the
Closing, Seller shall i ediately give Purchaser notice
thereof, shall notify it ' surance carrier, if any, and take
all measures necessary t secure any right of Seller to
claims for insurance or t rwise with respect to such damage
or destruction, and shal ke such measures as are necessary
to protect the remai in portions of the Ground from
deterioration or further d age as a result of such damage or
destruction.
(b) If any dama e r destruction to the Ground has
not been fully repair d and restored by the Closing,
Purchaser may, at its p ion, to be exercised by written
notice given to Seller a r before the Closing: (i) proceed
with the Closing, in hi h event all insurance proceeds
received and not alr a applied for the repair or
reconstruction of such a ge or destruction shall be paid
over to Purchaser at the Cl sing and all rights to additional
insurance proceeds not ye received shall be assigned to
Purchaser at the Closi g, and Purchaser shall assume all
rights and obligations nd r the repair contracts; or (ii)
terminate this Agreement a d thereupon the parties shall be
relieved of all further bligations hereunder.
(c) Prior to the 'C1 sing, Seller shall bear the risk
of loss of any damage or de truction to the Property. After
the Closing, Purchaser s al bear such risk of loss.
. AR I LE XI
MIS EL NEOUS
11. 1 Arbitration. All di putes arising in connection with
the interpretation of the 1 g age in this Agreement shall be
finally settled under the ul s of the American Arbitration
Association by a panel of o e (1) arbitrator appointed in
accordance with said Rules. T e place of arbitration shall be
Saint Paul, Minnesota.
11.2 Notices. All noti e , demands or requests required by
or made pursuant to this Agr e nt must be in writing and hand
delivered by expedited commer i 1 courier service, or mailed by
certified or registered mail, turn receipt requested, to the
party to which the notice, d' m nd or request is being made as
follows:
2
Sa nt Paul, Minnesota 55102
At en ion: Edward J. Warn
Ci �y ttorney's Office
64 C ty Hall
Sa 'nt Paul, Minnesota 55102
At en ion: John B. McCormick, Esq.
All notices shall be effecti pon delivery to said addresses.
Failure to give notice to a " ' o " address shall not vitiate the
notice.
11. 3 Attorneys' Fees. I the event suit is brought to
enforce or interpret all or a y ortion of this Agreement, or if
suit is brought for damages or fo any other relief hereunder, the
prevailing party shall be enti le to recover its costs, including
reasonable attorneys' fees inc r ed in connection with such suit.
11.4 Real Estate Commi s ons. Each party warrants and
represents to the other that i h s not dealt with any real estate
broker, agent, salesman or wit a y finder in any way with respect
to this transaction which wou d entitle any such broker, agent,
salesman or finder to a commi s ' n fee or other compensation on
2
I
11. 14 Further Assuran e . Each party, whenever and as often
as it shall be reasonably e ested so to do by the other party,
shall execute, acknowledge n deliver, or cause to be executed,
acknowledged and delivered, a y and all conveyances, assignments
and �all other instruments n documents and perform such other
acts and things as may e reasonably necessary in order to
complete the transaction r in provided and to carry out the
intent and purposes of this A eement.
11. 15 Future Corres o de ce. Purchaser shall deliver to
Seller copies of all corres n ence and other documents concerning
Purchaser's Cleanup Plan th t rchaser receives from the MICA and
any other environmental reg la ory agency.
11. 16 No Third Part en ficiaries. Nothing in this
Agreement shall entitle any e son or entity (other than Purchaser
and Seller and their respec i e successors and assigns permitted
hereby) to any claim, caus f action, remedy or right of any
kind.
11. 17 Memorandum of P rc ase A reement. The parties agree
to execute a Memorandum f Purchase Agreement for recording
purposes at the same time t a this Agreement is executed in the
form attached hereto as Exhi i F. In the event this Agreement is
terminated for any reason, Pu chaser agrees to promptly execute
and deliver to Seller such d cument or documents, in form and
substance acceptable to Sell r and in proper form for recordation
with the Ramsey County Rec rd r, evidencing the termination of
this Agreement.
31
. �9 - �a��
IN WITNESS WHEREOF, this Ag eement is executed by Seller and
Purchaser as of the date f'rs written above.
PIIRCHASER:
CITY OF SAINT PAUL
By:
Its: Mayor
APPROVED AS TO FORM ON BE F By:
OF THE CITY ATTORNEY: Eugene Schiller
Its: Director of Financial
Oppenheimer Wolff & Donnell and Management Services
Suite 1700
First National Bank Buildin
Saint Paul, Minnesota 55101 By:
A1 Olson
Its: City Clerk
SELLER:
SOO LINE RAILROAD COMPANY,
a Minnesota corporation
By:
Its:
32
PIIRCHASE AND RE OC TION AGREEMENT
List o E hibits
Exhibit A Legal D c iption of Warner Road
Exhibit B Seller' 'st of Contracts Affecting the
Propert
Exhibit C Seller' 'st of Hazardous Materials
Exhibit D Lease A r ement
Exhibit E FIRPTA e tificate
Exhibit F Memora u of Purchase Agreement
Exhibit G Form o Q itclaim Deed
Exhibit H Form o O inion of Seller's Counsel
Exhibit I Form o inion of Purchaser's Counsel
Exhibit C
SELLER�B LIS IiAZARDOUB MATERIALS
UNDERGROUND STORAGE TANKS
One 10, 000 gallon fuel tank a phalt-coated, currently in service.
This tank is located along h north wall at the existing freight
house.
ROAD-OILING FOR DUST CONTRO
From at least 1976 to 1987 il recovered from the oil separator at
St. Paul Yard was applied t the Warner Road Facility for dust
control. Oil applicati ns were done by company forces.
Applications were made at l a twice per year during the summer.
Currently (since 1988) a pa e mill by-product called FLAM-BINDER
by Flambeau Paper Co. is us d t Warner Road for dust control.
DOCUMENTED SPILLS
3/15/83 - Approximately 1,2 o allons of diesel fuel spilled from
a locomotive fuel tank punct r d by a piece of rail. Contaminated
soil was excavated and remo e from the site. Spill occurred on
track No. 6. Exact locatio o the spill is not available.
9/26/83 - Approximately 2, 0 0 allons of diesel fuel spilled from
a locomotive fuel tank punc u ed by a piece of rail. About 900
gallons of oil was recovered ontaminated soil was excavated and
removed from the site. Sp' 1 occurred on track No. 6. Exact
location of the spill is no a ailable.
8/17/84 - 5 or 6 gallons o uper Diesel Fuel Additive spilled
from a truck trailer. Most f aterial was lost enroute or leaked
on rail cars; very small am un of material spilled onto ground.
Most of material evaporate d some residue was left behind.
Exact location of spill not v ilable.
9/12/84 - Approximately 10 al ons of paint varnish spilled from
a truck trailer. The spille m terial was shoveled up from ground
and disposed of when dry b c mpany forces. Exact location of
spill not available.
8/6/85 - Small amount of AG EC Liquid Fungicide was dripping
from truck trailer. No i f rmation available on cleanup or
location of this spill.
3/13/89 - Approximately 150 g llons of diesel fuel was spilled
when a truck tractor became n up on concrete at 344 Warner Road
and punctured its full tank Bay West, Inc. was called out by
Bachman Trucking (the truck wn r) . Spill cleanup was handled by
Bay West, Inc.
MISCELLANEOUS
Cities Service at one time ha lease which permitted it to
install an underground fuel tan ar the original TOFC (trailer
or flat car) office site. The ta k was apparently removed many
years ago, and its exact locati n s no longer discernible.
Environmental matters noted 'n the Braun Environmental
Laboratories Report (as describ n Section 8. 3 of the Agreement)
and supporting data.
Exhibit E
FIRPTA C RT FICATE
NON-FOREIG FFIDAVIT
.WHEREAS, Soo Line Railroad Comp n ("Seller") , is selling to the
City of Saint Paul ("Buyer") , t e property described on attached
Exhibit A ("Property") ;
WHEREAS, Section 1445 of the I e nal Revenue Code provides that
a transferee of a United Sta e real property interest must
withhold tax if the transfero f such interest is a foreign
person;
THEREFORE, the undersigned cer if'es the following on behalf of
Seller:
1. Seller is not a foreign o oration, foreign partnership,
foreign trust, or foreign esta e (as those terms are defined in
the Internal Revenue Code and c me Tax Regulations) ;
2. Seller's United States e pl yer identification number is
:
3 . Seller's office address is:
4. Seller is a corporation or n zed under the laws of the State
of
5. Seller understands that thi ertification may be disclosed to
the Internal Revenue Service b B yer and that any false statement
contained herein could be puni h d by fine, imprisonment or both.
Under penalties of perjury, I d clare that I have examined this
certification and to the bes f my knowledge and belief it is
true, correct and complete nd i further declare that I have
authority to sign this docume t n behalf of Seller.
Dated: , 19 SOO LINE RAILROAD COMPANY
By
Its
Subscribed and sworn to befo
me this day of ,
19
Notary Public
Exhibit F
MEMORANDOM OF P RC SE AGREEMENT
� This Memorandum of Purcha� greement is between Soo Line
Railroad Company, a Minnesota co po ation ("Seller") , and the City
of Saint Paul, a municipal corpo at'on under the laws of the State
of Minnesota ("Purchaser") .
Purchaser and Seller hav ntered into a Purchase and
Relocation Agreement dated , 1989 ("Agreement") for
the land (the "Land") located i amsey County, Minnesota, known
as the Warner Road intermodal f c' lity, and legally described on
Exhibit A attached hereto and nc rporated by reference herein,
together with all improvements oc ted thereon.
The terms and conditions f he Agreement are incorporated
herein by reference with the sa orce and effect as though fully
set forth herein. The Agreem t requires the Seller to convey
title to the Land to Purchaser t losing.
The purpose of this Memor nd m of Purchase Agreement is to
give notice of the existence of t Agreement.
IN WITNESS WHEREOF, Selle a d Purchaser have executed this
Memorandum of Purchase Agreemen s of , 1989.
S LLER:
S o Line Railroad Company, a
M nnesota corporation
B .
Its:
P RCHASER:
C'ty of Saint Paul, a municipal
c rporation under the laws of
t e State of Minnesota
•Its:
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was a k owledged before me this
day of , 198 , y , the
, on b h lf of the Soo Line Railroad
Company, a c rporation.
[ S E A L ]
N ary Public
My Commission expires
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was c nowledged before me this
day of , 19 9, by , the
, on b ha f of the City of Saint Paul, a
municipal corporation under th 1 ws of the State of Minnesota.
[ S E A L ]
N tary Public
My Commission expires
This instrument was drafted by
Oppenheimer Wolff & Donnelly
1700 First Bank Building
Saint Paul, Minnesota 55101
.
Exhibit G
FORM OF U TCLAIM DEED
)
)
)
)
)
)
)
)
reserved for valuation and t x data reserved for recordin data
Date: , 19
For valuable consideration, S o Line Railroad Company ("Grantor")
a corporation under the law the State of Minnesota, hereby
conveys and quitclaims to th ITY OF SAINT PAUL ("Grantee") , a
municipal corporation under h laws of the State of Minnesota,
real property in Ramsey Co t , State of Minnesota, described
below, together with all her i aments and appurtenances thereto.
The real property is describ d s follows:
< >
Grantor reserves unto itself nd its successors and assigns, a
permanent non-exclusive eas me t on that portion of the real
property herein conveyed ly'ng within fifteen (15) feet of the
northerly property line of sa d real property, which easement
shall be solely for the ma ntenance, repair, renewal, and
replacement of the existing et ining wall. The Grantee reserves
the right to use the real pr p rty lying within the fifteen (15)
foot easement for any purpos s ot inconsistent with the purposes
of said retaining wall.
SOO LINE RAILROAD COMPANY
By:
Its:
. �9- /���
STATE OF MINNESOTA )
) SS
COUNTY OF HENNEPIN )
The forego n quitclaim deed was acknowledged
before me this da of , 19_, by
, the of 'Soo Line
�Railroad Company, a corpora io under the laws of the State of
Minnesota, on behalf of the or oration.
Notary Public
Tax Statements for the prope ty
should be sent to Grantee at
This instrument was drafted y:
John P. Nail
Soo Line Railroad Company
P.O. Box 530
Minneapolis, MN 55440 �
Exhibit H
FORM OF OPINION F SELLER�B COiTNSEL
August , 1989
City of Saint Paul
347 City Hall
Saint Paul, Minnesota 55102
RE: Purchase Agreement dated Is f July , 1989, between
the Cit of Saint Paul an S o Line Railroad Com an
Ladies and Gentlemen:
This opinion is furnished to y u n connection with Section 6. 1(j)
of the Purchase Agreement dat d as of July , 1989 ("Purchase
Agreement") between the Cit' of St. Paul ("Purchaser") , a
municipal corporation under t e laws of the State of Minnesota,
and Soo Line Railroad Company "S ller") , a Minnesota corporation,
whereby Seller has agreed to s 11 to Purchaser approximately 29.03
acres of real property common y known as Soo Line's Warner Road
intermodal facility located i t e City of Saint Paul, County of
Ramsey, State of Minnesota.
Unless otherwise defined her in capitalized terms used herein
shall have the meanings assi ne to such terms in the Purchase
Agreement.
We have acted as counsel for t e Seller in connection with the
Purchase Agreement and the tr ns ctions contemplated thereby. As
such, we have reviewed and' re familiar with the Purchase
Agreement and all exhibits t er to. We have also examined such
questions of law and such corp r te records, agreements, documents
and other instruments, includ'n certificates of officers of the
Seller, and have made such ot er investigation, as we have deemed
relevant and necessary for t e basis of the opinions expressed
herein.
In making the examination of su h agreements and instruments, in
connection with the opinions xp essed herein, we have assumed the
genuineness of all signatu e and the authenticity of all
documents submitted to us as ri inals and the conformity with the
originals of all documents ub itted to us as copies and have
further assumed with respect t each of them due execution and
delivery and the valid and b'n ing effect of such documents and
agreements. As to all questi n of fact material to this opinion
which have not been independe tl established, we have relied upon
certificates of officers o eller, the representations and
City of Saint Paul
August , 1989
Page 2
warranties made by the Seller n the Purchase Agreement and in
documents executed and delivere a Closing.
This opinion is limited to th aws of the United States of
America and the State of Minnes ta
The opinions hereinafter expre e are subject to the following
qualifications:
(i) The effect of bankru t , insolvency, reorganization,
fraudulent conveyance m ratorium or other similar laws
generally affecting c ed'tors' rights; and
(ii) The application of g neral principles of equity,
including but not 1 mi ed to the right to specific
performance, as a res 1 of which, for example, a court
might not enforce cer ai covenants if it concludes that
such enforcement woul b unreasonable or not undertaken
in good faith under t e hen-existing circumstances.
Based upon, and subject to, e foregoing and such other
assumptions as are set forth he e' , we are of the opinion that:
(1) The Seller is a corpo a ion, duly incorporated, legally
existing and in good stand n under the laws of the State of
Minnesota, and Seller has th corporate power and authority
to enter into and to perfo he transactions contemplated by
the Purchase Agreement and t e Lease Agreement.
(2) The Purchase Agreeme t and Lease Agreement have been
duly authorized, executed a d delivered by the Seller and
constitute legal, valid an inding contracts and agreements
of the Seller enforceabl i accordance with their terms.
The officers executing e Purchase Agreement and Lease
Agreement have the legal a acity and authority to execute
and deliver said agreemen n behalf of Seller.
(3) The consummation of t e ransactions contemplated by the
Purchase Agreement and Lea e greement and the fulfillment of
the terms thereof and the xe ution, delivery and performance
by Seller of the Purchase A reement and the Lease Agreement
will not conflict with, or' r sult in a breach of any term of,
or constitute a defau t under Seller's articles of
incorporation, bylaws, ag e ments governing Seller and all
applicable federal, state a d local statutes, laws, rules,
regulations and ordinance .
f
City of Saint Paul
August , 1989
Page 3
(4) To the best of o 'r nowledge, there is no suit, action
or proceeding against h Seller pending or threatened before
any court or governm t 1 agency in which it is sought to
restrain or prohibi he consummation of the Purchase
Agreement or the Lea e Agreement or to obtain damages or
other relief in conne ti n with the Purchase Agreement, the
Lease Agreement or th t ansactions contemplated thereby.
(5) We have particip e in the preparation of the Purchase
Agreement, Lease Agre e t and documents delivered by Seller
at Closing and in th rocess of closing the transactions
contemplated thereby nd nothing has come to our attention
that would lead us , t believe that any of Seller's
representations and wa r nties in the Purchase Agreement and
all exhibits thereto r 'n any Closing document is false or
misleading or omits t tate a fact necessary to make the
statements made not mi 1 ading.
This opinion is furnishe o you for your sole benefit in
connection with the Purc as Agreement and the transactions
contemplated thereby and i ot to be used, circulated, quoted,
relied upon or otherwise re e enced for any other purpose without
our prior written consent.
Very truly yours,
SOO LINE RAILROAD COMPANY
LAW DEPARTMENT
By:
Glenn Olander - Quamme
Its Corporate Attorney
, �'9- �a��
.
Exhibit I
FORM OF OPINION O URCHASER�S COIINSEL
August , 1989
Soo Line Railroad Company
Soo Line Building
Minneapolis, Minnesota 55440
RE: Purchase Agreement dated s f July , 1989, between
the Cit of Saint Paul an S o Line Railroad Com an
Ladies and Gentlemen:
This opinion is furnished to yo 'n connection with Section 6. 1(1)
of the Purchase Agreement dat d s of July , 1989 ("Purchase
Agreement") between the Cit f St. Paul ("Purchaser") , a
municipal corporation under t aws of the State of Minnesota,
and Soo Line Railroad Company ( 'S ller") , a Minnesota corporation,
whereby Seller has agreed to se 1 o Purchaser approximately 29. 03
acres of real property common nown as Soo Line's Warner Road
intermodal facility located in t e City of Saint Paul, County of
Ramsey, State of Minnesota.
Unless otherwise defined he�e n, capitalized terms used herein
shall have the meanings assig e to such terms in the Purchase
Agreement.
We have acted as counsel for t e urchaser in connection with the
Purchase Agreement and the tra sa tions contemplated thereby. As
such, we have reviewed and a e familiar with the Purchase
Agreement and all exhibits th re o. We have also examined such
questions of law and such corpo' a e records, agreements, documents
and other instruments, includi g certificates of officers of the
Purchaser, and have made suc ' o her investigation, as we have
deemed relevant and necessar or the basis of the opinions
expressed herein.
In making the examination of s c agreements and instruments, in
connection with the opinions ex r ssed herein, we have assumed the
genuineness of all signatur s and the authenticity of all
documents submitted to us as or'g'nals and the conformity with the
originals of all documents su m tted to us as copies and have
further assumed with respect o each of them due execution and
delivery and the valid and bi di g effect of such documents and
agreements. As to all questio s f fact material to this opinion
which have not been independent y established, we have relied upon
certificates of officials and a ministrators of Purchaser, the
representations and warrantie ade by the Purchaser in the
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Soo Line Railroad Company
August , 1989
Page 2
Purchase Agreement and in do um nts executed and delivered at
�Closing. �
This opinion is limited to he laws of the United States of
America and the State of Minne o .
The opinions hereinafter expr ss d are subject to the following
qualifications:
(i) The effect of bank p cy, insolvency, reorganization,
fraudulent conveyan , moratorium or other similar laws
generally affecting r ditors' rights; and
(ii) The application o eneral principles of equity,
including but not li ited to the right to specific
performance, as a r su t of which, for example, a court
might not enforce c t in covenants if it concludes that
such enforcement wo ld be unreasonable or not undertaken
in good faith under t then-existing circumstances.
Based upon, and subject t , the foregoing and such other
assumptions as are set forth e ein, we are of the opinion that:
(1) The Purchaser is ' a municipal corporation, legally
existing under the la f the State of Minnesota, and
Purchaser has the munic' a corporate power and authority to
enter into and to perf rm the transactions contemplated by
the Purchase Agreement nd the Lease Agreement.
(2) The Purchase Agre e t and Lease Agreement have been
duly authorized, execut d nd delivered by the Purchaser and
constitutes legal, vali a d binding contracts and agreements
of the Purchaser enforc ab e in accordance with their terms.
The officials executin he Purchase Agreement and Lease
Agreement have the leg 1 capacity and authority to execute
and deliver said agreem n s on behalf of Purchaser.
(3) The consummation o t e transactions contemplated by the
Purchase Agreement and e e Agreement and the fulfillment of
the terms thereof and t e xecution, delivery and performance
by Purchaser of the P rchase Agreement and the Lease
Agreement will not con 1 'ct with, or result in a breach of
any term of, or con ti ute a default under Purchaser's
articles of incorporat' n agreements governing Purchaser and
all applicable federa , state and local statutes, laws,
rules, regulations and or inances.
� �� - �as�
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Soo Line Railroad Company
August , 1989
Page 3
(4) To the best of our kn wl dge, there is no suit, action
or proceeding against the P rchaser pending or threatened
before any court or govermm � 1 agency in which it is sought
to restrain or prohibit e consummation of the Purchase
Agreement or the Lease Ag e ment or to obtain damages or
other relief in connection wi h the Purchase Agreement, the
Lease Agreement or the tra a tions contemplated thereby.
(5) We have participated ' he preparation of the Purchase
Agreement, Lease Agreeme t and documents delivered by
Purchaser at Closing and i the process of closing the
transactions contemplated t e eby and nothing has come to our
attention that would le us to believe that any of
Purchaser's representation nd warranties in the Purchase
Agreement or in any Closin cument is false or misleading
or omits to state a fact e essary to make the statements
made not misleading.
This opinion is furnished to y u for your sole benefit in
connection with the Purchase Ag eement and the transactions
contemplated thereby and is not t be used, circulated, quoted,
relied upon or otherwise refere e for any other purpose without
our prior written consent.
Very truly yours,
Oppenheimer Wolff & Donnelly