02-1059Return copy to: (BJE)
Real Estate Division
140 C�ty Hall
RESOLUTION
3p
PAUL, MINNESOTA
Presented By
Referred To
Committee: Date
1 WIIEREAS, on May 24, 2000 the Saint Paul City Council ("City Council") adopted Council File
2 No. 00-486 expressing the intent of the City of Saint Paul (�`City") to acquire a 25-acre vacant parcel
3 owned by the Burlington Northem and Santa Fe Railway Company (`BNSF") in the Lower Phalen
4 Creek azea; and
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6 WHEREAS, said Council File requested that the Trust for Public Land, Ina ("the TrusP') participate
7 on behalf of the City in the acquisifion process for the BNSF property; and
9 WHEREAS, said Council File also expressed the City's intention to accept tide to said BNSF
10 property, subject to further review and approval by the Ciry Council as to: a) project funding, b) terms
11 and conditions of a DNR conseroation easement and c) any purchase agreement negotiated with BNSF;
12 and
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14 WHEREAS, the U.S. Department of the Interior, through the National Parks Service, has allocated
15 $1,297,000 to the City to assist in the purchase of said BNSF property; and
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WHEREAS, the State of Minnesota Department of Natural Resources ("DNR"), through its Metro
Greenways Program, has allocated $775,000 to assist in the purchase of said BNSF property, said
allocation to be conditioned upon the establishment of a conservation easement over a11 or part of the
BNSF property; and
WHEREAS, on August 1, 2001 the City Council adopted Council File Nos. O1-776 and 01-777
accepting the aforemenuoned federal and state grants and establishing budgets for the disbursement of
these funds; and
WHEREAS, on November 7, 2001 the Saint Paul City Council approved CF #O1-1206 authorizing
the acquisiuon of said BNSF property; and
WHEREAS, the City now intends to purchase said property from BNSF with the aforementioned
grants and other public and private grants and donations which the Trust has secured; and
WHEREAS, the City and Trust have negouated with BNSF on the terms and conditions of
33 purchasing said property from BNSF and have authorized, managed and financed all transaction steps in
34 the acquisition process; and
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WHEREAS, the City of Saint Paui, acting through its Valuation & Assessments Engineer, has
secured an agreement for the purchase of said BNSF property; and
Council �le # O � � �QS9
Green Sheet # 203968
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Council FYIe # b �- -�OS�
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Green Sheet # 203968
WHEREAS, the purchase price of said properry is One Million Six Hundred Seventy-Five Thousand
Dollars ($1,675,000.00), this being a fair and reasonable amount based on the appraised value of said
BNSF property; and
10 WHEREAS, the Valuauon & Assessments Engineer has recommended the purchase of said properry
11 at the appraised value, subject to the terms and condiuons agreed upon between the BNSF the Ciry as
12 specified in the attached Purchase Agreement; now, therefore be it
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14 RESOLVED, that City staff actively explare funding options for developing said property for
15 parkland and trail use by the aeneral public in the future; and be it further
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17 RESOLVED, that the proper City officials are hereby authorized and directed to execute said
18 Purchase Agreement in a form and content substanually as set forth in the Purchase Agreement draft
19 attached hereto and any and a11 additional agreements necessary to acquire said property, and to pay to
20 the BNSF the sum of $1,675,000.00 plus the City's share of closing costs for the purchase of said
21 property, said sum to be charged to Activity Codes: CPLrC01-3D030 and CPL-COl-3D033.
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Requested by Department of:
Technoloev & Manaeement Services
B � • _ �
�i��Director
4
Form Approved by City Attorney
�
: ��_,�. ���;- .., ��,, . .
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G:�Shar d�RE�I2EAL
Adopted �y Council: Date �e.� .�,'J a-� O o��
AdopUO� j'ertified by Council Secretary
a�.��q
T.M.S./REAL ESTATE DIVISION Date: November 1, 2002 Green Sheet Number: 203968
ontact Peison and P6one N�ber: 2 EPARTMENT DIItECTO 4 CI'lY COLNCII.
Peter Wlute "" 266-8853 1 ATTORNEY yYr[.� ci,Eax
UDGETDIILECTOR FFICEOFFINANCIALSVCS.
ost be oa Coma1 Agenda by: .�€PYI: ;�lL'� i� ��< <�:9
3 YOR(ORASS75TA1VT)
OTAL # OF SIGNATURE PAGES 1(CLIP ALL LOCATIONS FOR SIGNATLIRE)
CTION REQITESTED:
To authorize CSity officials to execute a purchase agreement with the Burlington Northern and Santa Fe
Railway Company (BNSF) to acquire vacant land near Third Street and the Mississippi River in Saint Paul
(aka Bruce Vento Nature Sanctuary); and to pay the BNSF for the property. Ref: 1) Resolution; 2) Map; 3)
Purchase A eement
COMMENDAITON& AYPROVE (A) OR REJECT (R) ERSONAL SERVICE CONTRACTS MLJST ANSWER THE FOLLOWING:
PLANNING COMhIISSION A STAFF 1. Has the peison/1'irm evei worked mder a contract for this departm�t? YES NO
. Haz this perso�firm everbeen a CSty employee? PES NO
CIVII. SF.RVICE CObIMISSION
. Does this perso�Srm possess a skill notnorn�aDy possessed by any YES NO
CIB COMMITl'EE cm'rent
employee?
E lain all YFS answers on a se te
UPPORTS WHICH COUNCII, OBJECTiVE? c
OUNCII. � DISTRICT q
`'� co�. t�OV 0 6 2002
NITIATING PROBLEM ISSUE OPPORTONITY (Who WLat, WLen, Whue� Wh➢7): ya ��� �^�� y� 6� W��
�B � 8 �til�d
On 5/24/00 the City Council adopted CF# 00-486 expressing the City's intent to acquire a 25-acre vacant
parcel owned by the BNSF in the Lower Phalen Creek area for future development for trails and parkland.
On November 7, 2001 the City Council adopted CF #O1-1206 approving the acquisition. The Trust for
Public Land has been helping the City purchase the property. A Purchase Agreement has been agreed to
between the City and BNSE This resolution would authorize acceptance of the Purchase Agreement and
a ent to the BNSF for the ro e
VANTAGESIFAPPROVED:
The Cit will have a valuable urban reen s ace for future develo ment as a ark and nature area.
ISADVANTAGES IF APPROVED:
Once acquired, remediated and developed, the C5ty will need to commit additional resources to the
maintenance and u kee of this new ark s ace.
ISADVANTAGES IF NOT APPROVID:
The City likely will be unable to acquire and develop this valuable natura! resource.
OTAL AMOUNT OF TRANSACTION: $ 1�(']S�OOO.00 COST/REVENUC BUDGETED (CIl2CLE ONE) YES NO
uvcsouxcE: Federal Grant - Nat'I Parks Service AcT�zY�w��z: Fed grant -(COl-3D033)
State Grant - DNR/Metro Greenways State ant -(COl-3D030)
ANC7AL A'I�'ORMATION: (E%PLA71�
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oa-t��
THIS INDENTURE, made this /b day of _,�� �'�^'ti" > � by and betwecn_
Eueene R. Kotz , Grantor(s) and the Citv of Saint Paul , a municipal corporauon under the laws of
[he Sta[e of Minnesota, its successors and assigns, Gran[ee, for the cash considera[ion of Five Hundred Dollazs &
no/100 ($500.00) :uid other 000d and v;iluable consideradon, to the Granior i[ in hand paid and the receipt of
which is hereby acknowledged, does hereby grant, barg:un, sell and convey unto Grantce a temporary casement
over, under :u�d across [he real property descnbed as:
E 20 Yt of Lot 3 and ex S 50 ft L.ot 2, Blk 13, Terry's Addi6on to thc Ciry of St. Paul, County of Ranisey,
State of Minn.
The easement boundaries and area (approximately 140 square feet) are shown on the attached map
(E�ibit "A"), said map being on file with the City of Saint Paul, Department of Public Works.
It is further understood and agreed that the Gran[or, for the above consideration, does hereby com'ey to the
Grantee the above described casement for ceRain purposes including but no[ limi[ed to entry, operation, slopino,
grading and the clearing and s[orage of materi�ils in conjunction wiih and durin� the construclion of the Eazl Street
Bridge Replacement ProjecC "
This easement sh�ll expire an the 31" day of Mav , 2005 .
TElVIPORARY EASEMENT
Its:
Sta[e of
County of
r ss
)
Its:
The foregoing ins[rument was acknowledged before me this �� day of S6 P�°"` h '"� - ZOO2
� � �� �
Gra�tor(s).
Nd[ARIAL ]TAMP O R SEAL (OR OTHER TRLE O R RANIQ
E%�-;` SCO'fT D JOHNSON "
?�_'",,-f'?,�j,. NDiPftYRIBUC-NINNESOiA ?
f•�.f MYCOMMISSION !
� y �� E)PIHESJAN 31.�Cfi -
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THIS llVS1RUMENT WAS DAAE�IED BY (�AME Xc ADDRFSS)
The City of Saint Paul
Depuvnent of Technology & Management Services
Real Estate Division
IS West Kelio�e Boulevard
Room 140 City Hall
Saint Paul. Minnesota 55702
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OFFER TO PURCHASE REAL ESTATE
This offer to purchase real estate is made by the City of Saint Paul, a
Minnesota municipal corporauon ("Buyer').
BUYER'S OFFER
1. Buyer hereby offers to purchase from BN Leasing Corporation ("BN�") all
of BNL's right, ufle, and interest in and to the pazcel of land depicted and described
on the attached E�ibit A(the "Propert�'), at the price and upon the terms and
conditions set forth below. The Burlington Northern and Santa Fe Railway
Company ("BNSF) is made a party to this offer for the purposes hereafter stated.
AGREEMENT
2. As used in this offer references to this "AgreemenY' mean this offer, as
accepted by BNL and BNSF.
3. [intentionally omitted]
RIGHT OF BNL AND BNSF TO
4. Buyer understands that
any reason whatsoever, in the�
unreasonable or whether arbitr;
�
may decline to accept this offer for
te discretion, whether reasonable or
CLOSING AND
5. (a) The consummation of the transacuon contemplated by this offer (the
"Closing") sha11 take place on November 21, 2002, unless a different date is agreed
to in writing by Buyer, BNL, and BNSF. The Closing shall be effectuated through
an escrow arrangement with Land Tifle, Ina ("LTP'). The escrow agreement
("Escrow AgreemenY') among Buyer, BNL, BNSF, and LTI shall be acceptable to
Buyer, BNL, and BNSF, shall incorporate the terms of this Agreement by reference,
and shall provide that in the event of a conflict between the terms of this Agreement
and the Escrow Agreement, this Agreement shall take precedence. The cost of the
escrow, including any closing fee, shall be borne equally by Buyer and BNL. All
monies deposited with LTI pursuant to the Escrow Agreement shall be deposited in
an interest-bearing account insured by the Federal Deposit Insurance Corporation,
which account shall be acceptable to Buyer, BNL, and BNSF. All interest earned on
the deposited monies shall accme to the benefit of Buyer.
(b) At the Closing, Buyer and BNL shall deliver to one another, and
Buyer shall deliver to BNSF, such documents as may be necessary to consummate
the transacuon contemplated by this Agreement, including certificates of authority
and good standing, affidavits by BNL confirming that it is not a foreign person (as
Il
SRS&G Draft
Oct 30 2002 O �
such term is used and defined in Section 1445 of the Intemal Revenue Code of 1954,
as amended, and the re�ulations promulgated thereunder), and such other documents
as aze usually and customarily delivered at similar real estate closin�s in the
Minneapolis-St. Paul metropolitan area; provided, however, that BNL shall have no
obli�ation to execute or deliver any document that contains representations,
warranties, or agreements by BNL that are at variance with, or in addition to, the
provisions of this Agreement.
EFFECTIVE DATE
6. The effective date of this Agreement (the "Effective Date") shall be the date
on which this offer is accepted in writing by BNL and BNSF. If accepted on
different dates by BNL and BNSF, the Effective Date shall be the later of the two
acceptance dates.
PURCHASE PRICE, DEPOSIT, AND PAYMENT
7. Subject to the acceptance of this off�r h�?;:BNL and BNSF, Buyer agrees to
pay to BNL the following purchase price ftjr (the "Purchase Price"):
one million six hundred seventy-five thousa�si,dollara ($1,675,000.00), of which the
amount of seventy-five thousand dollars::�$7�;000.00) (the "Deposit") sha11 be
deposited by Buyer with LTI within,t�re� `��)' days of the Effective Date. At the
Closing, the Deposit shall be.„applieti� It�,xJ3e Purchase Price. The balance of the
Purchase Price shall be paid at�� �i�psirig by wire uansfer to an account or accounts
designated by BNL or, at BNL�':s b�s#zori; in cash or by certified check.
8. [intentionally
SURVEY
9. Prior to submitting this offer, Buyer sha11 have completed, at its sole cost and
expense, a survey of the Property (the "Surve}�'). The Survey shall conform to the
standards of the American Land Title Association ("ALTA"), shall identify and
describe the boundaries of the Property, and shall also identify and describe (i) all
wire lines, fiber optic cables communications cables, signal cables, gas lines, sewer
lines, water lines, pipe lines, and other utility lines (collectively, "Utility Lines") on
the Property, (ii) the boundaries and legal descripuons of any easements to be
retained by (or granted to) BNL and BNSF (or either of them) pursuant to this
Agreement, (iri) points of access to public rights of way, (iv) the portion of the
Property that will be the subject of a conservation easement (the "Conservation
Easement Area") to be granted to the State of Minnesota Department of Natural
Resources ("DNR"); (v) the driveway easement to be granted by Buyer to
Lowertown Depot, LLC; (vi) the pipe referred to in paragraph 41; and (vii) the un-
registered (i.e., abstract) and registered (i.e., Torrens) portions of the Property. The
Survey shall be subject to approval by BNL and BNSF, which approval shall not be
unreasonably withheld. Upon approval of the Survey by BNL and BNSF, the survey
�
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o�t 3o zoo2 a�..�os9
map and surveyed legal description of the Properry shall be attached hereto as
E�ibit A. The approved surveyed le�al description of the Property shall be used in
the deed or deeds to be delivered at the Closing. Prior to enterinL the Property to
perform the Survey, Buyer's surveyor shall execute and deliver to BNL and BNSF a
liabiliry release or right of entry agreement acceptable to BNL and BNSF. If the
Ramsey County registraz of titles requires a registered land survey ("RI,S") as a
precondition to the filing of a deed for the registered (i.e., Tonens) portion of the
Property, Buyer shall prepare the RLS at its cost. The RLS shall be subject to
approval by BNL and BNSF, which approval shall not be unreasonably withheld.
TAX-DEFERRED EXCHAIVGE
10. BNL has elected to assign its rights under this Agreement to Apex Property
& Track Exchange, Ina ("Apex"). Apex is a qualified intermediary within the
meaning of Section 1031 of the Internal Revenue Code of 1986, as amended, and
Treas. Reg. § 1.1031(k)-1(g), for the purpose of compleung tax-defened exchanges
under said Section 1031. BNL sha11 bear all expenses associated with the use of
Apex (or any substitute qualified interm�dia�}; or necessary to qualify this
transaction as a ta7c-deferred exchange, and; r�cept, otherwise provided herein,
shall protect, reimburse, indemnify, and hoT��barmless Buyer from and against any
and all reasonable and necessary additio��l._ cc�ts, expenses, including attorneys'
fees, and liabilities which Buyer may i�cur a3:a result of BNL's use of Apex (or any
substitute qualified intermediary) ox.;fh�' of this transacuon as a tax-
deferred transaction pursuant f��5ecr��n, ID31. Buyer shall cooperate with BNL with
respect to this ta�c-defened e�e1�&itge:' At the Closing, Buyer shall execute and
deliver to BNL triplicate oiiginal�s�'of each of the following documents: (i) the
Assignment of Rights Und�r���ritract to Real Estate attached hereto as Exhibit B;
and (ii) such other documents as BNL or Apex (or any substitute qualified
intermediary) may reasonably require to effectuate the tas-deferred exchange
contemplated by this paragraph. BNL reserves the right to use a qualified
intermediary other than Apex, in which event (i) the Assignment of Rights Under
Contract to Real Fstate form attached hereto as Exhibit B shall be modified to meet
the requirements of the substitute qualified intermediary and (ii) at the Ciosing,
Buyer shall execute and deliver to BNL triplicate originals of the Assignment of
Rights Under Contract to Real Estate form as so modified. Buyer shall not be
required to assume any liabilities or pay any costs in connection with such exchange,
nor shall Buyer be required to take utle to any other property in connection with
such exchange. The date of Closing shali not be extended in order to consummate
such an exchange. If the exchange fails for any reason, BNL will remain obligated
to sell the Property to Buyer.
CONVEYANCE
11. At the Closing, BNL shall convey to Buyer, by quitclaim deed, a11 of BNL's
rights, tifle, and interest, if any, in and to the Property. If necessary for purposes of
recordation with the Ramsey County Recorder or filing with the Ramsey County
3
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Oct 30 2002
01- ��`1
Registraz, BNL shall execute sepazate quitclaim deeds for the un-registered (i.e.,
abstract) and registered (i.e., Torrens) portions of the Properry. The deeds to be
delivered at the Closing shall be in form proper for such recordation or filing, as the
case may be. The sale of the Propeny is subject to e�stina leases, licenses, permits,
easements, rights, and interests of any kind or nature, whether or not of record. The
deeds to be delivered at the Closing shall contain such excepuons, reservauons, and
easements as aze contemplated by this Agreement.
LIQUIDATED DAMAGES AND SPECIFIC PERFORMANCE
12. Time is of the essence of this Agreement. Subject to such termination rights
as may be accorded to Buyer and BNL elsewhere in this Agreement, if Buyer shall
fail to close the uansaction contemplated hereby within the time limits herein
specified, BNL may retain the Deposit as liquidated damages, not as a penalty or
forfeiture, and declare this Agreement terminated, or BNL may proceed to have this
Agreement specifically enforced. In the event BNL defaults in the performance of
its obligations under this Agreement, Buyer shall, in addition to any and all other
remedies provided in this Agreement or at in equity, have the right to
specifically enforce this Agreement against B1VL: ';;;_, ;;> `
BINDING EFFECT; SUCCESSORS
13. This offer, when duly accepted b�',$��+TI. and BNSF, shall constitute the entire
.
agreement between the pazties:f�r Y�i�::�aIe and purchase of the Property and sha11 be
binding upon, and inure to : :�e'=be�efit of, Buyer, BNL, and BNSF and their
respective heirs, successors,.and pe�mitted assigns.
14. [intenuonally omittedj ��
TITLE INSURANCE COMMITMENT AND TITLE DEFECTS
15. (a) BNL, at its expense, shall obtain and provide to Buyer a title
insurance commitment from LTI, whereby LTI commits to issue a policy of title
insurance on the Property on ALTA owner's policy form B1970 or equivalent,
which policy sha11 include so-called extended coverage (including, but not limited
to, gap coverage and coverage for survey matters, parties in possession, and
mechanics' liens), with all standard excepdons deleted. The title insurance
commitment shall be provided no later than the Effective Date and shall include
LTI's utle report with respect to the Properry. If Buyer elects to purchase a policy of
tifle insurance on the Property, it shall be responsible for paying the premium for
such policy. If BNL is unable to procure a utle insurance commitment from LTI that
meets the requirements of this paragraph, any party may terminate this Agreement
by giving notice of termination to the other parties prior to the Closing.
(b) Within fifteen (15) days after receipt of the title insurance
commitment, Buyer shall deliver to BNL a written specification of defects in BNL's
0
SRS&G Draft
Oct 30 2002 � ���ps,
title to the Property. Title defects not identified in the specification shall be deemed
waived by Buyer. BNL has no obligation to cure, or attempt to cure, any of the
claimed defects. If BNL undertakes to cure a title objecuon, BNL may withdraw
from that undertaking at any time, upon notice to Buyer, without penalty. If BNL is
unable or unwilling to cure the ciaimed defects prior to the Closing, and if Buyer is
unwilling to accept the deed(s) subject to such defects, then any party may terminate
this Agreement by serving written notice of termination upon the other parties prior
to the Closing. If BNL undertakes to cure a tifle objection, and if BNL subsequenfly
gives Buyer notice that BNL is withdrawing from such undertaking, then any party
may terminate this Agreement by serving written notice of termination upon the
other parties priar to the Closing. In the event this Agreement is terminated in
accordance with this subpazagraph (b), LTI shall release the Deposit (and interest
accrued thereon) to Buyer. By ciosing this transaction, Buyer waives any and all
uncured title defects. Without limiting the nature of the matters that may be
identified in a specification of title defects, the following matters may be made the
subject of such a specificauon: that the Properry (or any portion thereofj is subject
to a preferential property tas classification and that the sale of the Property will
terminate that ta7c classification and will s�b�ect the Property or Buyer to
compensatory taaces, rollback taYes, or penal�es;'"`:"; �;-: '
REAL ESTATE COMMISSIONS; , OF STAUBACH GLOBAL
SERVICES . ....
16. Buyer and BNL herel�?<�ep�Senf"to one another that, except as otherwise
provided in this paragraph 16, B�� BNL have not utilized the services of a real
estate broker or agent in connecuari "with the transacuon contemplated by this offer.
If any real estate broker ar��en�;ean establish a valid claim for commission or other
compensauon as a result of �uyer having used its services in connection with the
purchase of the Property, all such commission or other compensauon shall be paid
by Buyer. BNL shail not be liable for any real estate commissions or finders fees to
any party with respect to the sale of the Property, except to Staubach Global
Services, Inc. ("Broker"), pursuant to a separate agreement between BNL and
Broker. On and prior to the date of this offer, Broker has advised, and hereby
advises, Buyer, by this writing and by other means, and Buyer hereby aclaiowledges
that Buyer has been so advised, that Broker is acung as the agent of BNL, with the
duty to represent BNL's interest, and that Broker is not the agent of Buyer. Priar to
the execution of this Agreement, Broker has advised, and hereby advises, Buyer,
BNL, and BNSF that this Agreement, when duly executed by the parties, will be
binding on them, and Buyer, BNL, and BNSF hereby acknowledge that they have
been so advised.
17. [intentionally omitted]
JUDGMENT LIENS
18. Any judgment against BNSF and/or BNL which may appeu of record as a
lien against the Property shall be setfled and sausfied by BNSF and/or BNL (as the
5
SRS&G Draft
Oct 30 2002
case may be) if and when it is judicially determined to be valid. If requested to do
so by Buyer, at the Closing BNSF and/or BNL (as the case may be) shall deliver to
LTI a letter in the form of the attached Exhibit D.
REAL ESTA1'E TAXES AND SPECIAL ASSESSMENTS
19. (a) Locally assessed real estate ta�ces due and payable in the year of the
Closing shall be prorated by BNL and Buyer as of the Closing on the basis of the
most recent ascertainable assessment against the Property or as may be equitably
apportioned thereto by BNL and Buyer if the Property is not sepuately assessed. If
BNL and Buyer aze unable to agree upon such an equitable apportionment, any party
may terminate this Agreement by notice to the other parties. If and to the extent the
Property is tazed as railroad operating property (pursuant to Minnesota Statutes
Secuon 270.81 et seq.) in lieu of local assessment, there shall be no pro-ration of the
railroad operating property taY and BNSF and/or BNL, as the case may be, shall be
and remain responsible for payment of such tax.
(b) All outstanding special a
Closing (or any subsequent year) shall be
due and payable in the year of
TRANSFER TAXES AND
20. Buyer agrees to purchase, aff€�> a�d=cancel any and all documentary stamps
in the amount prescribed by st�;T�Ce;:<�nd'"to pay any and all required transfer tases,
excise tases, and any and all,f�e'�;_�t�aciclental to recordation/filing of (i) the deed or
deeds and (ii) any satisfactf�n of->judgment or release of judgment lien provided
pursuant to paragraph 18. I�r`:;�h�;event Buyer fails to pay any taa�es and fees which it
is obligated to pay pursuant to this paragraph 20, and if BNL and BNSF (or either of
them) shall be required to make such payment, Buyer shall be liable for a11 costs,
expenses, and judgments to or against BNL and/or BNSF in respect thereof,
including all of BNL's and BNSF's legal fees and expenses, and the same shall
constitute a lien against the Property until paid by Buyer.
NOTICES
21. All notices contemplated by this Agreement shall be in writing and shall be
deemed to have been given or served when delivered in legible form to the addresses
set forth in this paragraph. Nouce may be given by any means, including registered
or certified mail, courier or delivery service, hand delivery, or facsnnile transmission
(faY). The parCies' addresses for notice purposes are as follow:
If to Buyer: City of Saint Paul
Ciry Hall
15 West Kellogg Boulevard
Saint Paul, MN 55102
Attn: Peter White
� Z •`�
G
SRS&G Draft
Oct 30 2002 ��y
FaY: (651) 266-8855
If to BNL and BNSF: Staubach Global Services
4105 Lexington Avenue North, Suite 200
Arden Hills, MN 55126
Attn: Roger Schwinahammer
FaY: (651) 481-9361
Any parry may change its address for nouce purposes by �ving advance written
notice of the change to the other parties.
PLATTING AND SUBDIVISION
22. In the event a city, county, or other governing authority wherein the Property
is located requires a survey or piat or has a subdivision ordinance, Buyer shall obtain
the requisite survey or plat, all at Buyer's sole cost and expense. The survey or plat
shall be submitted by Buyer to BNL and BNSF fOr review and approval prior to
recording/filing and prior to the Closing.
RAIL SERVICE
23. Nothing in this Agreement sh�i prevetit BNSF from discontinuing service
over any railroad line or lines by whj�h �ail:.service may be provided to the Property.
HEADINGS
24. Paragraph headings are for convenience only and are not intended to, and do
not, limit, expand, or otherwise modify the wording of the paragraphs which they
precede.
COMPLETE AGREEMENT
25. This Agreement contains the entire agreement between BNL, BNSF, and
Buyer with respect to the Property and, except as set forth in this Agreement, neither
BNL and BNSF (or either of them) nor their respective agents or employees have
made any agreements, covenants, warranues, ar representations of any kind or
character, express or implied, oral or written, with respect to the Property.
LAND ONLY
26. This Agreement relates only to land. Any personal property of BNL and/or
BNSF located on the Property may be removed by BNL or BNSF priar to the
Closing, and, if not removed, shall be deemed abandoned by BNL and BNSF
without obligation on BNL's and BNSF's part and shall thereafter be and become
the property of Buyer in place.
SRS&G Draft
o�t so aooz b}.l�°1
27. [intentionally omitted]
AS IS, WHERE IS; NO REPRESENTATIONS OR WARRANTIES;
ENVIRONMENTAL CONDI7TONS
28. (a) Buyer has been, and will be, allowed to make an inspection of the
Property and has knowledge as to the past use of the Property. Based upon this
inspection and knowledge, Buyer is (and will be) awaze of the condition of the
Property. Buyer is aware that it is purchasing the Property on an "as-is with all
faults" basis with any and all patent and latent defects, including those relating
to the environmental condition of the Property, and that Buyer is not relying on
any representations or warranties, express or implied, of any kind whatsoever
from BNL or BNSF as to any matters concerni�ng the Property, including the
physical condition of the Property and any. thereof, the presence of any
Hazardous Substances (as defined below) ori�or a���Li.�tg the Property, the condiuon
or existence of any aboveground ar undergraT�i�d structures or improvements on the
Property, the condiuon of utle to the Prn��ty;;::�nd the leases, easements, or other
agreements affecting the Property. Notvuifl�s�anding this subparagraph (a), BNSF
shall be responsible for conducting �zEain Response Actions (as defined in
subparagraph (b), below) v�€�. `'�pect to groundwater, all as provided in
subparagraph (g), below.
(b) As used in
"Environmental Agenc}�' means any federal, state, or local agency, department,
governmental unit, or tribunal charged with responsibility or authority for enfarcing
any Environmental Law. The term includes, but is not limited to, the United States
Environmental Protecuon Agency, MPCA (as defined below), the Minnesota
DepaRment of Health, and the Minnesota Department of Agriculture.
"Environmental Law" means any exisung or future federal, state, or local statute,
code, law (including common law), rule, regulation, ordinance, order, judgment,
decree, or injunction that is applicable to the Property (or any operauon or activity
conducted thereon) and which pertains in any way to the protection of human health
or the environment. The term includes, but is not limited to, the federal Resource
Conservation and Recovery Act, the federal Comprehensive Environmental
Response, Compensauon and Liability Act, the federal Toxic Substances Control
Act, the federal Clean Water Act, the federal Safe Drinking Water Act, the federal
Insecticide, Fungicide and Rodenticide Act, the federal Clean Air Act, the federal
Oil Pollution Act, the federal Hazazdous Materials Transportation Act, the federal
Occupational Safety and Health Act, any rule, regulation, or order promulgated
pursuant to any of the foregoing Acts, any Minnesota statute comparable or
�
analogous to any of the foregoing Acts, and any rule, regulation, or order
promulgated pursuant to any such Minnesota statute.
SRS&G Draft
Oct 30 2002
� �- •
��Hazardous Substance" means any pollutant, contaminant, toxic or hazardous
substance, toxic or hazardous material, toxic or hazazdous waste, or other deleterious
or hannful material defined or listed in, regulated or controlled by, or otherwise
govemed or addressed by any Environmental Law.
"MPCA" means the Minnesota Pollution Control Agency and any successar thereto.
"Release" means any release or discharge of any Hazazdous Substance by any means
or method including (but not limited to) spilling, leaking, pumping, pouring,
emitting, emptying, injecung, escaping, leaching, dumping, or disposing, and further
including (but not limited to) any leaching, migration, or dispersion of any
Hazardous Substance that was previously released or discharged.
"Response Action" means any action to investigate,
stabilize, neutralize, cap, cover, contain, remedy,
Release of a Hazardous Substance.
remove, clean up, treat,
�ise respond to any
(c) At the Closing, Buyer shaJl;�ec�Ye and deliver to BNL and BNSF a
Declaration of Covenants and Re�tr�ctiti�is and Grant of Easement (the
"Declarauon") in the form of _the at�ac�d �xhibit E. Buyer, at its expense, shall
cause the Declaration to be reeprct��;_zyi�li the Ramsey County Recorder and filed
with the Ramsey County Regi'5Ya�ar;"'with such recordation and filing to occur
immediately subsequent tc�. the ,�'ecordation and filing of the deed or deeds
contemplated by this Agree�ieaa�.' If necessary for the purpose of such recordauon
and filing, Buyer shall execufe sepazate Declarations for the registered (i.e., Torrens)
and un-registered (i.e., abstract) portions of the Property.
(d) No later than sixty (60) days after the Closing, Buyer, at no cost to
BNL and BNSF, shall execute and deliver to DNR, and shall cause to be recorded
with the Ramsey County Recorder and filed with the Ramsey Counry Registrar, a
conservation easement in respect of the Conservation Easement Area. The form of
such easement shall be substantially the same as the form attached hereto as E�ibit
F. If necessary for the purpose of such recordation and filing, Buyer shall execute
sepazate conservation easements for the registered (i.e., Torrens) and un-registered
(i.e., abstract) portions of the Property.
(e) With respect to Hazardous Substances on or affecting the Property,
after the Closing Buyer shall perform, or shall cause to be performed, at no expense
to BNL or BNSF, all Response Actions that are necessary to comply with any
requirements imposed by any Environmental Agency. If the Property (or any
portion thereofl is opened for public recreational use prior to the completion of any
such Response Actions, Buyer shall be responsible far taking all appropriate
measures to prevent public access to those portions of the Property where such
�
SRS&G Draft
Oct 30 2002 O ��,051
Response Acuons are to be performed. Buyer shall initiate such Response Actions
promptly after the Closing and shall complete the Response Actions with all diligent
speed. Notwithstanding this subparagraph (e), BNSF shall be responsible for
conductin� certain Response Actions with respect to groundwater, all as provided in
subparagraph (g), below.
(fl Buyer understands that certain Hazardous Substances are present on
the Property, including, but not limited to, mercury, lead, asbestos, and or�anic
compounds. Buyer has conducted an environmental invesugauon of the Propeny.
(g) The closing of this transacuon is contingent upon BNSF obtaining
MPCA's approval of one of the following Response Actions for groundwater
contamination on the Property: a no action letter ("NAL") or natural attenuation
("NA"). This contingency is solely for the benefit of BNSF and BNL. If MPCA
issues an NAL for groundwater, and if the NAL requires future groundwater
monitoring, then BNSF shall perform such future monitoring and shall retain
ownership of the existing monitoring wells, and Buyer shall, at the Closing, execute
and deliver to BNSF an Easement Grant in. tk�=form of the attached Exhibit C,
whereby BNSF is granted an easement�for> t2T�;: of conducting such
monitoring, which easement shall include tt�ti:;_right to construct, maintain, and use
such addiuonal monitoring wells as may:;_be r�asonably required to perform such
monitoring. If MPCA approves an NA=Resp�se Action for groundwater, and if the
approved NA Response Action,inci�sies<_�uture groundwater monitoring, then BNSF
shall perform such future m��irt.or�t�,_ and shall retain ownership of the existing
monitoring wells, and Buyer shai�x:;�t tihe Closing, execute and deliver to BNSF an
Easement Grant in the foru�af the>attached Exhibit C, whereby BNSF is granted an
easement for the purpose �c}f ,c�oriducting such monitoring, which easement shall
include the right to construct, maintain, and use such additional monitoring wells as
may be reasonably required to perform such monitoring. The locations of any
additional monitoring wells shall be determined by BNSF after consultauon with
MPCA, Buyer, and (if and to the extent the new monitoring wells are within the
Conservation Easement Area) DNR. In determining the locauon of new monitoring
wells, BNSF shall give due regard to the comments of Buyer and (if applicable)
DNR. The ingress and egress routes for access to the exisung monitoring wells and
any additional monitoring wells shall be determined by BNSF after consultation
with Buyer and (if and to the extent such ingress and egress routes are within the
Conservation Easement Area) DNR. In determining the ingress and egress routes,
BNSF shall give due regard to the comments of Buyer and (if applicable) DNR. If
MPCA issues an NAL for groundwater that does not require future groundwater
monitoring, or upon compleuon of any future groundwater monitoring required by
the NAL, or upon completion of any future NA monitoring required by the NA
Response Acuon, BNSF shall remove and seal the then-existing monitoring wells or
shall make such other disposition of the wells as is mutually acceptable to BNSF and
Buyer. If MPCA approves NA or issues an NAL for groundwater and MPCA or any
other Environmental Agency subsequenfly determines that additional Response
Actions (e.g., source removal, source reduction, source containment) are necessary
10
SRS&G Draft
Oct 30 2002 p �.-�� �)
with respect to groundwater, such additional Response Actions shall be the
responsibility of Buyer pursuant to subpaza�raph (e), above, and BNSF shall transfer
to Buyer, and Buyer shall acquire from BNSF, all of BNSF's interest (if any) in the
then-existin� monitorin� wells on the Property.
(h) At the Closing, BNSF shall pay to Buyer, by BNSF's company check,
the sum of two hundred fifty thousand dollars ($250,000.00) (the `BNSF
Contribution"), which sum shall be applied by Buyer to the costs hereafter incurred
by or on behalf of Buyer to conduct the Response Actions contemplated by
subparagraph (e), above. Buyer shall hold the BNSF Contribution in trust for the
benefit of BNSF and shall apply the BNSF Contriburion solely to the costs of the
Response Actions contemplated by subparagraph (e), above.
(i) (1) If Buyer shall decide not to procure the insurance described in
subpazagraph (i) (2), below, or if such insurance shall expire, lapse, or be terminated
or cancelled, or if such insurance shall not be of the type or amount described in
subpazagraph (i) (2), then, in any such event, Buyer shall indemnify and defend BNL
and BNSF as provided in the attached Eachibii;_f'i. The indemnity and defense
obligations of Buyer under Exhibit G shall �i�m;�ri�:pri the twentieth anniversary of
the Closing, except that such obligations sh�.;not ferminate with respect to losses,
damages, liabilities, claims, and costs whi�� been asserted against, or incurred
by, BNL and/or BNSF prior to the date of suc��twenueth anniversary.
(2) Buyer ���?; i�si:.so bhooses, procure insurance with respect to
the environmental condifions.��;l;hhe"Property. If Buyer opts to procure such
insurance, (i) the policy or �olicie�'of insurance in effect from the Closing through
the tenth anniversary of the ��sing shall be in the form attached hereto as Exhibit H
and shall have policy limits of at least ten million dollars ($10,000,000.00) per
occurrence and ten million dollars ($10,000 in the aggregate, and (ii) the
policy or policies of insurance in effect from the tenth anniversary of the Closing
through the twentieth anniversary of the Closing shall be in the form attached hereto
as Exhibit H(or such other substantially similar form as shall be acceptable to BNSF
and BNL) and shail have policy limits of at least ten million dollars
($10,000,000.00) per occurrence and ten million dollars ($10,000,000.00) in the
aggregate. Any insurance procured by Buyer pursuant to this subparagraph (i) (2)
shall be procured at no cost to BNL and BNSF. Insurance that is not in compliance
with this subparagraph (i) (2) shall be disregarded for the purposes of subpazagraph
(i) (1).
(j) Buyer acknowledges that MPCA may require a restrictive covenant
pertaining to groundwater. Buyer agrees to execute and record such a covenant in
the form required by MPCA.
PROVISIONS SURVIVE CLOSING
11
SRS&G Draft
o�t 3o aooa o �--\cs'1
29. The parties agree that the terms, conditions, and provisions of this Agreement
shall survive the Closina and the delivery and recordin�filins of the deeds and other
instruments contemplated by this A�reement.
CLOSING DEADLINE
30. Notwithstanding anything herein, this transaction shall close no later than
November 21, 2002, unless that date is changed by written agreement of the parties.
FENCE
31. As a condition to this sale, Buyer must construct and maintain, at its sole
cost, a fence (the "Fence"), reasonably satisfactory to BNSF's Division
Superintendent, at the location shown in approximauon by the green line on the
attached Exhibit A. The Fence shall be no less than six (6) feet in height and shall
include a lockable gate whereby BNSF can gain access to its adjacent right-of-way
via the access easement described in pazagraph ��-_A'The Fence shall be completed by
the eazlier of the following: (i) two hundr�d,f�ir�y'.(2�#0) days after the Closing or
(ii) the date the Property (or any portion thez��, is opened to the public. The Fence
shall be maintained by Buyer in perpetuit�;:� ;The_deeds to be delivered at the Closing
shall include a covenant to the same,effecti`:as this pazagraph 31, which covenant
shall be acceptable to BNL and. BN$�`� �a11� run with the land, shall bind Buyer and
future owners of the Propertq;��'si��31 t�enefit BNL and BNSF and their respective
heirs, successars, and assigns.,>°°�'-<;�;.:, �'
• � .� � 1'Z�1
32. Subsequent to the Closing, BNSF will construct improvements to an existing
roadway on BNSF's properly adjacent to the Property. Buyer shall reimburse BNSF
for the costs incurred by BNSF to construct such improvements, up to a maYimum
reimbursement of Twelve Thousand and no/100 Dollars ($12,000.00). Buyer shall
reimburse BNSF within thirty (30) days of receipt of BNSF's itemized statement(s)
of labor and materials.
DRAINAGE
33. In connection with any alteration made to the Property by or on behalf of
Buyer, Buyer shall provide proper drainage so that water does not flow toward
BNSF's railroad tracks and right-of-way. The deeds to be delivered at the Closing
shall contain a covenant acceptable to BNSF whereby Buyer agrees to provide such
proper drainage. Said covenant shall bind Buyer and future owners of the Property
and shall benefit BNSF and its heirs, successors, and assigns. Said covenant shall
ruu with the land.
ACCESS EASEMENT
12
SRS&G Draft
Oct 30 2002 �' � ��e,
34. At the Closing, Buyer shall execute and deliver to BNSF an Easement Grant,
in the form of the attached Exhibit C, whereby BNSF is granted a non-exclusive
easement over and across the Property for pedestrian and vehiculaz access to
BNSF's property adjacent to the Property. The course and boundaries of the
easement are shown on the attached Exhibit A. The roadway shall be maintained by
BNSF at no cost to Buyer; provided, however that BNSF shall have the right to
require Buyer to reimburse BNSF for costs incurred by BNSF to repair damage or
excess wear and tear to the roadway resulting from the acts or omissions of Buyer,
Buyer's employees, agents, contractors, or invitees, or other users of the Property.
Buyer shall provide BNSF with five (5) copies of the key to the lockable gate that
currently e�sts along the northwesterly boundary of the Properry, or any
replacement gate. Buyer shall notify BNSF's Roadmaster prior to changing the lock
and shall provide BNSF with five (5) copies of the new key prior to or at the time of
any such change. BNSF and Buyer shall consult with one another to determine
mutually agreeable safety measures to be implemented at such point or points where
BNSF's access easement crosses any recreational trails on the Property.
INVESTIGATIONS
35. Buyer shall have from the date
conduct environmental ix
condition of the Property.
conducted pursuant to a s�
and BNSF.
offer to the Closing in which to
investigaUOns with respect to the
activities on the Property shall be
it among Buyer's contractor, BNL,
36. [intentionally
BNL's and BNSF's OPTION TO 1`ERMINATE
37. If BNL and BNSF (or either of them) determine, in the exercise of its or their
judgment and discretion, that environmental conditions on ar affecting the Property
make the transaction contemplated by this Agreement imprudent, BNL and BNSF
(or either of them) may terminate this Agreement by nouce to Buyer given at any
ume prior to the Closing.
ASSIGNMENT; SUBSEQUENT CONVEYANCE
38. (a) Buyer may not assign or transfer any of its rights under this
Agreement without first obtaining BNL's and BNSF's written consent thereto. Any
purported assignment or transfer in violauon of this paragraph 38 shall be void and
of no effect. BNL and BNSF are under no obligauon whatsoever to consent to any
proposed assignment or transfer and may decline such consent far any reason, or no
reason at all.
13
SRS&G Draft
Oct 30 2002 ��`t�t,
(b) Any and all conveyances by Buyer of fee ufle to all or any part of the
Properry shall be subject to Buyer s obligations under this Aa eement, and Buyer
shall require the �rantee under each such conveyance to assume all of Buyer's
obli�ations under this Agreement with respect to the portion of the Property
conveyed to such grantee. Unless otherwise aareed to in writina by BNSF and BNL,
no such conveyance, and no such assumption of obli�auons by the grantee, shall
release City from any of its obligations under this Agreement.
(c) Except as may otherwise be provided in pazagraph 10, above, there
aze no restrictions on BNL's or BNSF's right to assign or transfer any or all of their
rights or obligations under this Agreement.
WELL DISCLOSURE
39. Buyer hereby acknowledges that BNL has disclosed in writing the
information required by Minnesota Statutes Section � 03I.235.
INDIVIDUAL SEWAGE TREATMENT
40. Buyer hereby acknowledges that B�l�i:. in writing the
information required by Minnesota Sta,t�ttes �°�tion ll5.55 subdivision 6.
BUYER TO
41. Within sizty (60) da� after:t3ie closing, Buyer, at is sole cost and expense,
shall permanently plug, witl�;::t�n�nt or other material acceptable to BNL and BNSF,
that certain pipe idenufied by ' coloration on the attached Exhibit A.
BNSF'S AND BNL'S OBLIGATIONS ARE SEVERAL
42. The obligations of BNSF and BNL under this Agreement are the several
obligaUons of BNSF and BNL, as the case may be, not the joint obligations of both.
To the extent a right, interest, or easement reserved or granted to BNL and/or BNSF
is exercised by BNSF but not BNL, or vice versa, any liabiliues associated with the
exercise of said right, interest, or easement shall accrue to BNSF but not BNL, ar
vice versa, as the case may be.
43. [intentionally omitted]
DATE AND CONTENT OF OFFER
44. This offer, consisung of _ pages and Exhibits A, B, C, D, E, F, G, and H
attached hereto, has been made and signed in triplicate by Buyer this day of
, 2002.
14
SRS&G Draft
Oct 30 2002 ���
CITY OF SAINT PAUL
�
Title:
OFF'ER ACCEPTED:
BN LEASING CORPORATION
�
Tifle:
Date:
THE BURLINGTON NORTHERN AND
SANTA FE RAILWAY COMPANY
�
Title:
Date:
15
SRS&G Draft
Oct 30 2002 D � _ ��
EXHIBIT A
[survey]
16
SRS&G Draft
Oct 30 2002 0 ���� 5 „�
1: :
ASSIGNMENT OF RIGHTS UNDER CONTRACT
TO REAL ESTATE
APEX PROPERTY & TRACK EXCIIANGE, INC., a Massachusetts
corporation, of 2036 Washington Street, Hanover, Massachusetts 02339, (hereinafter
called "Assignee"), BN LEASING CORPORATION, a Delaware corporauon,
(hereinafter called `Bxchan�o�"), and the CITY OF SAINT PAiJL, a Minnesota
municipal corporation (hereinafter called "Buye�").
Whereas, Exchangor and Buyer heretofore entered into an Agreement dated
, 2002 (the "ContracP'), wherein Exchangar agrees
to assign the rights to the Contract, but not the obligauons and warranties, over to
Assignee, as it pertains to the following describe�:F��lin_quished Property:
See Exhibit "A" attached heretd°i�d made a part hereof.
Now, Therefore, Exchangar h��eby a�igns to Assignee all of the
Exchangor's rights under the C�ntra��, as`�:ontemplated by Treasury Regulations
Secuon 1.1031 (k)-1(g)(4)(v), ii�ctudi'i�� a11 deposits received prior to issuing a Deed
transferring legal title. Exchaz�gor's;€�bligations and warranfies under the Contract
remain with the Exchangor,�ncluding the authority to issue a Deed transferring legal
title to the Relinquished Prop�rty over to the Buyer.
Assignee previously represented, warranted and covenanted to Exchangor,
under the Master Exchange Agreement dated January 1, 1997, that it will not
transfer, assign, mortgage or hypothecate the rights that it is receiving from the
Exchangor and that Assignee shall not amend, terminate, modify, supplement or
otherwise alter any term, condition or other provision of the Contract. At the same
ume the Deed goes into effect transfening legal title to the Buyer, rights received
under this Assignment of Rights are transferred to Exchangor.
Assignee is participating in this transaction only as a Qualified Intermediary
and that for purposes of any dispute regarding the Relinquished Property, Exchangor
and Buyer shall look solely to each other with respect to resolving any such dispute
and neither one shall look to the Assignee. This shall be binding upon and shall
inure to the respecUve heirs, successors and assigns of Exchangor and Buyer.
This instrument may be executed in any number of counterparts, each of
which, when duly executed, shall constitute an original hereof.
17
SRS&G Draft
Oct 30 2002
Zn Wimess 4Vhereof, the parties hereto have executed this Assignment of ������ �
Rights Under Contract, to be effective as of the date on which the last parry hereto
signs.
Exchangor.
BN LEASING CORPORATION
a Delawaze corporation
�
D. P. Schneider
General Director Real Estate
Date:
Assignee:
APEX PROPERTY & TRACK
a Massachusetts corporation
tsy:
Lisa I.eary "
First Vice President
Date:
Buyer:
CITY OF SAINT PAUL
a Minnesota municipal corporation
By: _
Name:
Date:
EE�?
SRS&G Draft
Oct 30 2002 O �, `
EXHIBIT C
Date:
For One Doilar ($1.00) at��,qf�i� good and valuable consideration, receipt of
which is hereby acknowledg�d, th� City of Saint Paul ("Cit�'), a municipal
corporauon under the laws of the State of Minnesota, whose address is Ciry Hall, 15
West Kellogg Boulevard, Saint Paul, Minnesota 55102, hereby conveys and
warrants to The Burlington Northern and Santa Fe Railway Company (`BNSF"), a
Delaware corporation whose address for the purposes of this instrument is 2500 Lou
Menk Drive, Fort Worth, Texas 76131-2830, the following easements:
First, Ciry conveys and warrants to BNSF an easement for the purpose of
conducting groundwater monitoring and testing. The property subject to the said
easement is located in Ramsey County, Minnesota, and is described as follows (the
"Property"):
[insert legal description of the Property]
19
SRS&G Draft
Oct 30 2002
Said easement shall include the right to operate, use, maintain, repair, reconstruct,
and replace all existin� monitoring wells on the Property. Said easement shall also
include the right to construct, install, operate, use, maintain, repair, reconstruct, and
replace such additional monitoring wells as may be reasonably required to perform
such monitoring and testing. Said easement shall also include rights of ingress and
egress. In exercising its rights of ingress and egress to and from the e7cisting
monitoring wells (and any replacement monitoring wells or new monitoring wells
constructed or installed pursuant to this Easement Grant), BNSF shall determine the
ingress and egress routes after consultation with
ingress and egress routes are within the
of Natural Resources ("DNR")
due regard to the comments of
to construct or install
BNSF shall determine the
and (if and to the extent such
of Minnesota Department
DNR, and BNSF shall give
DNR. In exercising its right
wells and new monitoring wells,
of such wells after consultation with the
Minnesota Pollution Control Agency, City, and (if and to the extent such wells
would be within the limits of any DNR conservation easement) DNR, and BNSF
shall give due regard to the comments of City and (if applicable) DNR.
Second, City conveys and warrants to BNSF a non-exclusive easement far
pedestrian and vehicular ingress and egress (the "Access EasemenY') across the
Access Easement Area (as described below) for the purpose of access to BNSF's
railroad right of way adjacent to the Property. The Access Easement Area is located
in Ramsey Counry, Minnesota, and is described as follows:
[insert legal description]
Ol-'p �
20
SRS&G Draft
Oct 30 2002 O}.` 5 �
BNSF shall maintain its roadway within the Access Easement Area at no cost to
City. However, BNSF shall have the ri�ht to require City to reimburse BNSF for
costs incurred by BN5F to repair damaae or excess weaz and tear to the roadway
resultin� from the acts or omissions of City, City's employees, agents, contractors,
or invitees, or other users of the Property. City and BNSF shall consult with one
another to determine mutually agreeable safety measures to be implemented at such
point or points where BNSF's roadway crosses any recreational trail or trails on the
Property.
This Easement Grant shall inure to the
successors and assigns.
IN WTI'NESS WHEREOF, City has
year first written above.
STATE OF MINNESOTA
COUNTY OF RAMSEY
)
) ss
)
of BNSF and its heirs,
Easement Grant as of the day and
CITY OF SAINT PAUL
�
Its:
The foregoing instrument was acknowledged before me this _ day of
, 200_, by , the
of City of Saint Paul, a municipal corporation under the
laws of the State of Minnesota, on behalf of said City.
Notary Public
My commission expires:
21
SRS&G Draft
o�t 3o aooa p�.. �os�
This instrument drafted by:
Glenn Olander-Quamme
Spence, Ricke, Sweeney & Gemes, P.A.
325 Cedar Street. Suite 600
St. Paul, MN 55101
(651)223-8000
Fas: (651)223-8003
After recording, return to:
Glenn Olander-Quamme
Spence, Ricke, Sweeney & Gemes, P.A.
325 Cedu Street, Suite 600
St. Paul, MN 55101
22
SRS&G Draft
Oct302002 0 �'�� 5 ,
� 1 L' 1
[BNL or BNSF letterhead, as the case may be]
Date
Title Company name and address
Re: Conveyance of property located in Citv- Countv. State. from BN I.easing
Corporation (`BNL") to the City of Saint Paul ("Purchaser")
Gentlemen:
Reference is made to Exception Number(s) (whether one or more, the
"Judgment Exceptions") as iUthey appeaz in _ identifv schedule and section of
Commitment for Title Insurance No. insert:nu�iber issued by insert name of tit2e
insurer ("Title Company") on date, at Ci s`tv StaYe; :';Cta�Furchaser for land located in
Citv, Countv. State.
The Judgment Exceptions make refere�ce to``fiie following unsatisfied judgment(s)
entered against [BNL or BNSF, th� case;�ay be] :
pist judgment(s)]
So long as said judgme���}� remain(s) outstanding and unsausfied, thereby
constituting a cloud on the title to the property covered by said Commitment for
Title Insurance, [BNL ar BNSF, as the case may be] shall hold harmless Title
Company from and against any loss, damage, or expense Title Company may
sustain by reason of Tit1e Company waiving the Judgment Excepuons.
Very tntly yours,
D. P. Schneider
General Director Real Estate
23
SRS&G Draft
Oct 30 2002 O � �
� 11:
■
DECLARATION OF COVE]
AND GRANT
RESTRICTIONS
This Declaration of C
"Declaration"), made on this
("City"), a Minnesota munici
ns and Grant of Easement (this
2002, by the City of Saint Paul
Whereas, on the date of this Declarauon, City has acquired from BN L.easing
Corporation (`BNL") certain property in the City of Saint Paul, Ramsey County,
Minnesota, as described in greater detail on the attached Exhibit A(the "Property");
and
Whereas, the Propeny was acquired by City pursuant to that certain Offer to
Purchase Real Estate made by City on , 2002, and accepted by
BNL on , 2002, and by The Burlington Northern and Santa Fe
Railway Company ("BNS�') on , 2002, which accepted offer is
referred to herein as the "Purchase AgreemenY'; and
Whereas, the Property is the site of certain Releases (as defined below) of
Hazardous Substances (as defined below), including (but not limited to) the
Hazardous Substances listed on the attached Exhibit B; and
Whereas, in the Purchase Agreement, City agreed to impose the following
covenants and restrictions on the Property.
24
SRS&G Draft
Oct 30 2002 O � + ��,
NOW, TE�REFORE, for and in consideration of the foreaoing premises and
$1.00 and other Qood and valuable consideration, the receipt and sufficiency of
which aze hereby City hereby declares that the Property shall be
held, sold, and conveyed subject to the covenants and restrictions set forth below, all
of which shall run with the Property, shall be bindin� on City and its successors in
utle, and shall be for the benefit of BNSF and BNL (and their respective heirs,
successors, and assigns):
1. Definiuons In addition to terms defined elsewhere in this
Declaration, the following terms, when capitalized as shown, have the following
meanings:
(a) "Environmental Agenc�' means any federal, state, or local agency,
depariment, governmental unit, or tribunal charged with responsibility or authority
for enforcing any Environmental Law. The term includes, but is not limited to, the
United States Environmental Protection Agency, MPCA, and the Minnesota
Department of Agriculture.
(b) "Environmental Law" means::;an.y e�isti�g or future federal, state, or
local statute, code, law (including common�I�u�), rule, regulation, ordinance, order,
judgment, decree, or injunction that is apg�i��til�;to the Property (or any operation ar
activity conducted thereon) and whic� pe�s in any way to the protecuon of
human health or the environment. includes, but is not limited to, the
federal Resource Conservauti�,;: Act, the federal Comprehensive
Environmental Response, Ct��rp�usation and Liability Act, the federal Toxic
Substances Control Act, the�fede��1 Clean Water Act, the federal Safe Drinking
Water Act, the federai InseGY�ic�e; Fungicide and Rodenticide Act, the federal Clean
Air Act, the federal Oil "Pollution Act, the federal Hazardous Materials
Transportation Act, the federal Occupational Safety and Health Act, any rule,
regulauon, or order promulgated pursuant to any of the foregoing Acts, any
Minnesota statute comparable or analogous to any of the foregoing Acts, and any
rule, regulation, or order promulgated pursuant to any such Minnesota statute.
(c) "ExisUng Hazardous Substances Releases" means all Hazardous
Substances Releases that occuned on the Property prior to the date of this
Declaration, including any exisung or future leaching, migrauon, or dispersion of
such Hazardous Substances Releases.
(d) "Hazardous Substance" means any pollutant, contaminant, toxic or
hazardous substance, toxic or hazardous material, toxic or hazardous waste, or other
deleterious or harmful material defined or listed in, regulated or conuolled by or
otherwise govemed or addressed by any Environmental Law.
(e) "MPCA" means the Minnesota Pollution Control Agency and any
successorthereto.
25
SRS&G Draft
Oct 30 2002 � �.�a5,
(fl "Release" means any release or dischazge of any Hazazdous
Substance by any means or method, including (but not limited to) spillin�, leakin�,
pumpin�, pourmg, emitting emptying, injectin�, escaping, leachin�, dumping, or
disposing, and further includin� (but not limited to) any leachin�, miaration, or
dispersion of any Hazardous Substancethat was previously released or discharged.
(g) "Response Action" means any action to invesugate, abate, remove,
clean up, treat, stabilize, neutralize, cap, cover, cont�tin, remedy, or otherwise
respond to any Release of a Hazardous Substance.
2. Covenant Not to Sue. City hereby covenants and agrees not to sue
BNSF and BNL, or either of them, with respect to any matter relaring to the
environmental condition of the Property, including (but not limited to) any suit to
recover costs incurred to implement Response Acuons pertaining to Existing
Hazardous Substances Releases; provided, however, that City reserves the right to
sue BNSF and BNL, or either of them, to enforce the terms of the Purchase
Agreement.
3. Use Restrictions. City hereb�?: agrees that the Property
sha12 henceforth be subject to the following re��ctions:
(a) Except as provided in (a), the Property shall be
used solely for a wildlife sanctuaty„'pu�i]ke bicycle paths, public pedestrian uails,
and public amenities consiste��:;iui�'�he'foregoing uses. The following uses of the
Property are also permitted: easement to be granted by City to
Lowertown Depot, LLC; a�y easements retained by, ot granted to, BNSF and/or
BNL pursuant to the Pureti<�,se> Agreement; and any other uses of the Property
specifically contemplated or required by the Purchase Agreement.
(b) The groundwater on and under the Property sha11 not be used as a
source of potable water.
4. Environmental Aeenc�quirements. With respect to the Existing
Hazardous Substances Releases, City hereby covenants and agrees that it shall
comply with any requirements of MPCA and any other Environmental Agency with
jurisdiction over the Property, including (but not limited to) the implementation of
such Response Acuons as may be required by MPCA (ar such other Environmental
Agency) in connection with the Existing Hazardous Substances Releases; provided,
however, that this paragraph 4 is not intended to, and does not, relieve BNSF from
any of its obligations under pazagraph 28 (g) of the Purchase Agreement.
5. Engineerine Certifications. City hereby covenants and agrees that a11
plans and specifications for Response Actions to be implemented on the Property by
(or on behatf ofl City ("Response Action Plans") shall bear (or be accompanied by)
a signed certification by a registered professional engineer, licensed to practice in
the State of Minnesota, to the effect that the Response Acuon Plans include such
26
SRS&G Draft
Oct 30 2002
protocols, procedures, and design features as may be necessary and appropriate to
prevent human beings from ingesting, inhaling, or coming into contact with
Hazardous Substances associated with Existing Hazardous Substances Releases.
Ciry further covenants and agrees that any Response Acuons implemented by (or on
behalf o� City on the Property shall be implemented in conformity with the
Response Action Plans as so certified. Ciry furrher covenants and agrees that, upon
completion of the implementation of each such Response Action Plan, a registered
professional engineer, licensed to practice in the State of Minnesota, shall issue a
written certification (the "Completion Certificatiori') to the effect that the Response
Action Plan was implemented in accordance with its terms and in such manner as
was necessary and appropriate to prevent human beings from ingesting, inhaling, or
coming into contact with Hazardous Substances associated with E�sting Hazazdous
Substances Releases. The Response Action Plans and Complerion Certifications
shall be retained by City for thirty (30) years from the completion of the relevant
Response Actions (or such longer period as may be required by the relevant
Environmental Agency) and shall be available for inspection by BNSF and BNL, or
either of them, at all reasonable times upon no less than one (1) business day's
advance notice to City. Prior to obtaining certification required by this
paragraph 5, City shall advise the register�� grof�si�nal engineer that BNSF and
BNL (and their respective heirs, successors�>�tnd assigns) are intended beneficiaries
of such certification.
6. Contingenc�
develop and 'unplement a �
risks to human health and
any excavation or other
groundwater on the Propen
excavations or other disturl
on the Properry shall be
contingency plan.
?lan. �it�:.,heieby covenants and agrees that it shall
>n��geri�:�..p3an acceptable to MPCA that will address
�feEy'�1.`tisks to the environment that may azise during
tiisturtiance of soils, sediments, surface water, or
��at�d''City further covenants and agrees that any and all
inces of soils, sediments, surface water, or groundwater
conducted subject to, and in conformity with, that
7. Bindine Effect. This Declaration, and each and every one of the
covenants and restrictions set forth herein, shall run with the Property and shall be
binding upon City and its successors in title.
8. Benefit: Enforcement. This Declaration, and each and every one of
the covenants and restrictions set forth herein, is for the benefit of, and may be
enforced by, BNSF (and its heirs, successors, and assigns) and/or BNL (and its heirs,
successors, and assigns).
9. Grant of Easement. City hereby grants to BNSF and BNL, and each
of them, the right and easement to enter upon the Property at all reasonable times for
the purpose of verifying City's compliance with this Declaration. Said right and
easement may be exercised by BNSF and BNL, or either of them, through their
respective agents, consultants, or conuactors. This grant shall inure to the benefit of
BNSF anc3 BNL and their respective heirs, successors, and assigns. Unless
C� \O51
27
SRS&G Draft
Oct 30 2002 ��,.\05`�
otherwise agreed to by Ciry, the ri�ht and easement hereby nranted to BNSF and
BNL shall be for non-vehiculaz access.
10. Restriction on Assisnment of Citds Riahts. City may not assign or
transfer any of its rights under the Purchase Agreement or this Declaration without
first obtainiva BNL's and BNSF's written consent thereto. Any purported
assignment or transfer in violation of this paragraph 10 shall be void and of no
effect. BNL and BNSF are under no obligarion whatsoever to consent to any
proposed assignment or transfer and may decline such consent for any reason, or no
reason at all.
11. Notice. Any nouce required to be given to City may be given by any
means reasonably calculated to bring the matter to City's attenUOn, including (but
not limited to) oral communication (in person or by telephone), facsimile
transmission, elecuonic mail, courier service, or United States mail.
12. Amendments. This Declaration u�ay not be amended, changed,
discharged, or terminated except by a w instrument duly executed and
acknowledged by City, BNSF, and BNL (�r t�te°�>respective heirs, successors, or
assigns).
13. Severabilitv. The inval�ciity oz<'�nenforceability of any one or more of
the provisions of this Declaration sha�2 i�::nei way affect the validity or enforceability
of the remaining provisions li���o�s'>� Such remaining provisions shall remain in
full force and effect. � -
IN WITNESS WHEREOF,
first written above.
executed this Declarauon as of the day and year
CITY OF SAINT PAUL
�
Its:
STATE OF MINNESOTA
COUNTY OF RAMSEY
ACKNOWLEDGEMENT
)
) ss.
)
The foregoing instrument was acl�owledged before me on , 2002,
by , the
Minnesota municipal corporation.
of the City of Saint Paul, a
28
SRS&G Draft
Oct 30 2002 a z '���
Notary Public
My commission expires:
Drafted by:
Spence, Ricke, Sweeney & Gernes, P.A. (GO�
325 Cedar Street, suite 600
St. Paul, MN 55101
(651)223-8000
After recording return to:
Glenn Olander-Quamme
Spence, Ricke, Sweeney & Gemes, P.A.
325 Cedar Street, Suite 600
St. Paul, MN 55101
29
SRS&G Draft
Oct 30 2002 b a''���
EXIIIBIT F
jconservation easement document — to be provided by Buyer]
�
SRS&GDraft �}.\�`,
Oct 30 2002
EXIIIBIT G
Note: Terms defined in the Offer to which this E�ibit is attached are used with the
same meanin�s in this E�ibit.
Buyer shall indemnify and defend BNSF and BNL from and aaainst any and all
losses, damages, liabilities, claims, and costs (including, but not limited to, fines,
penalties, judgments, liugation expenses, and attorneys' fees) arising out of the
environmental conditions that e�st on the Property as of the Closing, including @ut
not limited to) (i) the cost of any Response Action that is required by any
Environmental Law, (u) the cost of any Response Action that is required by judicial
order or by order of (or agreement with) any Environmental Agency, (iii) the cost of
any Response Action which Buyer for any reason deems necessary or appropriate,
and (iv) personal injuries and property damages.
The rights of BNSF and BNL under this Exhibit shall be in addition to, and not in
lieu of, any other rights or remedies to which they may be entitled under this
Agreement or otherwise.
Nothing in this Exhibit is intended to, nor does�it, relieve BNSF of its obligations
under paragraph 28 (g) of this Agreement, :.;': ,; �` :':°
31
SRS&G Draft
Oct 30 2002 0 Z , \p5�
EXHTBIT H
[form of environmental insurance policy]
AE2001-06.LPCPYAdcaft.wpdVlb
32