HomeMy WebLinkAbout15.C.4. Quarry Lake Purchase Agreement
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CITY OF SHAKOPEE
MEMORANDUM
To: Mayor and City Council
Mark McNeill, City Administrator
From: Mark Themig, Parks, Recreation, and Facilities Director
Meeting Date: October 18, 2005
Subject: Quarry Lake Purchase Agreement
INTRODUCTION
City Council is asked to authorize the purchase agreement and related easements for
acquisition of the quarry property.
BACKGROUND
The City has been working with Aggregate Industries on a purchase of an approximately
111 acre reclaimed aggregate quarry in eastern Shakopee. City Council authorized
execution of a purchase agreement in late December, 2004, but the purchase
agreement was not executed due to the discovery of diesel range organics (DRO's) on
the property. Since that time, we have been working with Aggregate Industries, the Prior
Lake Water Ski Association (PLWSA), the Minnesota Department of Health (MDH) and
the Minnesota Pollution Control Agency (MPCA) to research DRO further.
Based on our investigation and determinations by the MPCA and the MDH, we do not
believe that the DRO levels discovered in groundwater and the surface water on the
property pose any health risks for the proposed use (See Attachments A and B). With
these determinations, it is acceptable to proceed with the acquisition.
DISCUSSION
Purchase Price
Aggregate Industries has lowered the purchase price from $250,000 to $200,000, in
exchange for not being required to clean up recycled concrete and rebar located in the
northwest corner of the property. (Aggregate would still be responsible for removing the
construction items and debris in both the northwest and northeast corners of the
property.)
Initially, I had concerns about this proposal due to the potential work and costs that
would be associated with future cleanup required for development in this area. However,
I met on site with Ray Ruuska from Engineering to review the conditions. Fill will need to
be added in the areas where there is the most significant rebar and concrete. With fill
being added, it will cover these areas. There was consensus that a $50,000 reduction in
the purchase price will far exceed the costs required to prepare this area for future
development.
MPCA Additional Site Investigation and Liability Assurance Letter{s)
We have received approximately $25,000 in funding from the MPCA for additional site
investigation to determine the source of the DRO contamination. This work would be
performed by STS Consulting under the direction of the MPCA. As I understand,
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additional long-term monitoring of the site could be provided by the MPCA if additional
funding is available.
In addition, we will be submitting applications to the MPCA for liability assurance letter(s)
that would relieve the City of any responsibility for future cleanup costs at the site. In
order to receive liability assurance letter(s) for petroleum contamination, I was
transferred last week from the MPCA's VIC program to the MPCA's Petroleum
Brownfield Program. The purchase agreement has conditions that the City must receive
the letter(s) prior to closing.
Purchase Agreement
Primary items in the purchase agreement (Attachment C) are consistent with Council's
previous review:
. Agreement between the City and Prior Lake Water Ski Association must be in place
before closing.
. Access easement granted to the City and authorized users for 10 years. Agreement
could be terminated in five years if rail spur line is constructed (Exhibit C of
Purchase Agreement).
. Rail and access easement to Aggregate for future rail line spur (Exhibit D of
Purchase Agreement).
. Water access license granted to Aggregate to use water from the quarry for dust
control at the bituminous plant (Exhibit E of Purchase Agreement).
. Declaration of covenants granted to the City for access to Aggregate's retained
parcel in the event of a spill (Exhibit F of Purchase Agreement).
Parks and Recreation Advisory Board Review
The Advisory Board reviewed the general terms of the purchase at their September
meeting and recommended moving forward with the acquisition.
REQUESTED ACTION
City Council is asked to authorize appropriate City officials to execute a purchase
agreement, access easement, rail and access easement, water access license, and
declaration of covenants for acquisition of the Aggregate Industries reclaimed quarry in
Shakopee, pending final review and approval by the City Attorney.
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.. . . STATE OF MINNESOTA Ij;j,'2~1
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DEPARTMENT: Health
Office Memorandum,
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DATE: April 27, 2000
TO: Helen Goeden
MPCA
Environmental Outcome Division "
FROM: Daniei F Peiia
Site Assessment and Consultation Unit
PHONE: 612215-0774
SUBJECT: Clarification for Application of Health~Based Value for Total Petroleum.
Hydrocarbons (fPH).
The October 8, 1999 Memo from MOH provided the rationale for the Health Based Value (HBV) for
TPH. As you recall the HBV for TPH (pyrene as the surrogate) is 200 p.g/l. A precedent for this
approach is use ofpyIene as a surrogate for !PH by the,Massachusetts' Department of Environmental
Protection. In addition, the use of pyrene as a TPH surrogate has been implemented in North Carolina '
~d is currently being considered for use in Texas and. Washington.
.< It has come to my attention that there is some confusion regarding which carbon chain length range the
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-. . HBV applies to. The TPH HBV 3pplies to the entire TPH carbon range defined as C6-C28. In other .
wot:ds, if a groundwater sample has greater then 200 llgll of total petroleum hydrocarbons (1PH), ORO,
DRO, or GRO + DRO, MDH will advice that an alternate.source of dripking water be used.
Enclosed please find a copy of the rational for the TPH HBV (Data for Derivation of Groundwater
Health Based Value work sheet). .'
Chemical CAS number Endpoint Value Source
Pyrene (TPH surrogate) 129-00-0 Kidney toxin 200 }lg/L IRIS
Please be advised that although we feel that the TPH- HBV will provide an adequate level of pr~tec1ioI4
there is uncertainty assOciated with it. Therefore) like the other.HBVs developed by.MDH, the TPH
HBV should be considered provisioDal. 'the calculation of the HBV assumes a 70 kg person and a
: drinking water intake of two liters per day. A relative contribution of the TPH surrogate from drinking
waterof20 percent was also assumEd. .
DFP:cmr
cc: Larry Gust
TPH Work Group
Attachment
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DEPARTMENT: Health STATE OF MINNESOTA _
Office Memorandum
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DATE: October 8~ 1999 '
TO: Belen Goedan
MPCA
Environmental Outcome Division
. FROM: DanielF Peiia
Site Assessment and Consultation Unit
PHONE: 61221.5-0774
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'SUBJECT: Rational for Health-based Value for" Total Petroleum Hydrocarbons (TPH)
Enclosed please :find a copy of the rational for the TPH HBV (Data for Derivation of Groundwater
Health-Based Value work sheet). The approach chosen was to use pyrene as a surrogate for the entire
TPH group. A precedent for this approach is use of pyrene as a sUlTogate for TPH by the Massachusetts'
Department of Environmental Protection, and as a TPH surrogate for petroleum compounds with. c8rbon:
chaln lengths between 17 and 35 carbons (CI7-C3S) by the Total Pe1J;'oleum Hydrocarbon Criteria .
Working Group. In addition, the use of pyrene as a TPHsmrogate has been implemented in North
CaroIIDa and is currently being consiciered for uSe in Texas and WashiIigton.
Chemieal . CAS number Endpoint, Value Source
(""'r.-.
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Pyrene (TPH surrogate) 129-00-0 Kidney toxin 2QO,ugIL IRIS -
Please ,be advised that although we feel that the TPH HBV will provide an adequate level of protection,
there is uncertainty associated with it. Therefore, like the other HBV s developed by MDH, the TPH
BBV should be considered provisional. The calculation of the HEV assumes a 70 kg pelson and a "
drinking water intake of two liters per day. A relative contribution of the TPH ~gate from drinking
Water of 20 percent was also assumed.
DFP:r1k .
cc: Larry Gust
TPH Work Group-
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Minnesota Rules: 4717.7100 to 4717.7800 establish the factors and methods used to calculate health. risk
limit numbers. These methods are also used to calculate HBV s. The formula is defined as follows: -,
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Health Risk Limit/Health Risk Value = [(RfD)(B W)(RSC)(1 000)]
2
R:tD= Reference Dose for Pyrene. Selected as the surrogate for-1PH
0
BW = Body Weight for standard adult is 70 kg ,
RSC = Relative Source Contribution for water is 0.2
(1000) = unit conversion factor to convert mglliter to ugll -
(2) = standard volume of water ingested per day by an adult
PyreIie was selected as the surrogate for TPH. The RID for pyrene is 0.03'mglkg/day. Therefore the
HBV for TPH is calculated as follows:
[(0.03)(70)(0.2)(1000)1
2
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Therefore the TPH HEV = 210 ug/1
Rounded to one significant figure = 0.2 mg/l
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DATA FOR DERIVATION OF GROUND WATER HEALTH BASED VALUE (H~V) .
Compound Name: Total Petroleum Hydrocarbons (TPH); Pyrene is the surrogate for TPH. \; .."
TPHis a class of compound~ ranging from 6 carbons in length to 28 carbons.
CAS #: 129-00..0 (TPH Surrogate, ~.e., Pyrene)
NOAEL: 75mg/kg/day (kidney toxin)
Uncertainty Factor: 3000
RID: 0.03mg/kg/day
Relative Source Contribution (drinking 'water): ,0.2
Potency Slope: N/A
, Applied Risk Level: N/A
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HBV: 200 p.g/L \ -"."
Data Source: U.S. EPA (1989), as cited it; an EPA IRIS databasefiJe last updated on
7/1/93.
Notes: Class D carcinogen (not classifiable as to human carCinogenicity); developed as
a TPH surrogatfi! by the Massachusetts Department of EnvirQnmental Protection
(www.magnet.state.maus/deplbwsc/vph_eph.htm); also used as a TPH surrogate, by the Total
Petroleum Hydrocarbon Criteria Working Group (www.aehs.coml); has been implemented
as the TPH surrogate in Massachusetts, North Carolina, and is being considered in
Washington.and Texas. .
Date (Prepared or Modified):October 1999
Prepared By: Daniel Pena
DFP:cmr
cc: Larry Gust
TPH Work Group
0-..,;.
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Mark Themig I B I
From: John Davis uohndavis@mn.rr.com]
Sent: Wednesday, February 23, 2005 2:51 PM
To: Mark Themig
Subject: Fw: Fwd: DRO Specialist Advice
Mark --
As you know, we still very much want to work with you and Aggregate to get
the real estate transaction completed between Aggregate and the City in
2005, and then move on to the broader issues of public access, site
improvement, and implementation of our articulated vision.
Parochially, however, regardless of the progress we make on the big picture,
the PLWSA would like to use the lake again this summer for our Club
activities. We have permission to do so fromAggregate, contingent upon
the PLWSA seeking advice regarding whether the measured levels of DRO in the
lake would pose a health risk to our members.
I sent a note to the Minnesota Dept. of Health to try to learn more
specifically about the health effects of the 130 and 150 ug/L measurements
of DRO contaminants in the lake, when compared to our particular activates
in the lake. I received a response from the Division of Environmental
Health. I've included this response below. It includes some useful
background information on the origin of the State of Minnesota's "Health
Based Value" of 200 ug/L. I thought you would like to see this. In
addition, she reports that it is highly unlikely that measured DRO levels
would pose any risk to water skiers.
Now of course this does not resolve the City's larger questions about
whether the contamination comes from the one-time reported spill event, or
is continuously seeping from some other source, but, while we do additional
investigation, I think PLWSA can likely safely use the lake this summer.
--John
----- Original Message -----
From: "Anne Kukowski" <Anne.Kukowski@state.mn.us>
To: <johndavis@mn.rr.com>
Sent: Wednesday, February 23, 2005 1 :00 PM
Subject: Re: Fwd: DRO Specialist Advice
> Dear Mr. Davis.
>
> The Minnesota Department of Health's (MDH) Health Based Value (HBV) of
> 200 ug/L for diesel range organics (DRO) assumes daily consumption of
> two liters of drinking water containing DRO over a long period of time
> - from several years to a lifetime. Generally, higher exposures can
> be tolerated over the short-term. Only in an unusual circumstance
> would recreational use of water result in even a one-time consumption
> of two liters in a single day.
>
> Water skiing allows the possibility of dermal and inhalation exposure.
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> Although I am not aware of any specific values setting health based
> limits for inhalation and dermal exposure to DRO, the HBV is derived
> to allow for routes of exposure in addition to oral ingestion. In
> deriving an HBV, only twenty percent of the total allowable exposure
> is allocated to drinking water, thus leaving eighty percent for
> exposure through other routes. It is therefore highly unlikely that
> DRO at the levels you cite would pose any
> risk to water skiers.
>
>
> Sincerely,
>
> Anne Kukowski
>
> Anne Kukowski, M.S., J.D.
> Minnesota Department of Health
> Division of Environmental Health
> 121 East Seventh Place, Suite 220
> St. Paul, Minnesota 55164-0975
>
>
>
>
>
> --
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II
AGREEMENT FOR A BARGAIN SALE
THIS AGREEMENT FOR A BARGAIN SALE is made as of October,
2005, between AGGREGATE INDUSTRIES-NORTH CENTRAL REGION, INC., a Minnesota
corporation, ("Seller") and CITY OF SHAKOPEE, MINNESOTA, a statutory city and political
subdivision organized and existing under the Constitution and laws of the State of Minnesota
("Buyer").
In consideration of this Agreement, Seller and Buyer agree as follows:
1. Sale of Property. Seller agrees to sell to Buyer, and Buyer agrees to buy from Seller, a
certain tract of unimproved real property located at 6896 C. Rd. 101 E, City of Shakopee,
Scott County, Minnesota, consisting of 111.425 acres, legally described on Exhibit A attached
hereto, together with the Access Easement over Seller's Retained Parcel described in
Section 5.1 hereof, and all easements and rights benefiting or appurtenant to the
foregoing (collectively the "Property").
2. Value and Manner of Allocation. Unless this Agreement is terminated as provided in and
permitted by the terms of this Agreement, Seller and Buyer shall consummate a bargain
sale in which the total value of the Property shall be One Million Sixty Hundred Fifty
Eight Thousand Nine Hundred and 00/100 Dollars ($1,658,900.00) (the "Property
Value"). The Property Value shall be allocated and taken into account as follows:
2.1 Cash Portion of Bargain Sale. Two Hundred Thousand and 00/100 Dollars
($200,000) by wire transfer of U.S. Federal Funds or by cashier's check (the
"Cash Portion of the Bargain Sale") from Buyer to Seller on the Closing
Date (as hereinafter qefined); and,
2.2 Donation. A donation of One Million Four Hundred Fifty Eight Thousand Nine
Hundred and 00/100 Dollars ($1,458,900.000) by Sellerto Buyer.
3. Contingencies.
3.1 Buyer's Contingencies. The obligations of the Buyer under this Agreement are
contingent upon each of the following:
3.1.1 The representations and warranties of Seller contained in this Agreement
must be true now and on the Closing Date.
3.1.2 Title to the Property shall have been found acceptable, or been made
acceptable, in accordance with the requirements and terms of Section 9 below.
3.1.3 Buyer shall have received from the Minnesota Pollution Control Agency
Liability Assurance Letter(s), as appropriate, confirming that the City will
not be associated with or liable for any release on or from the Property
with respect to matters disclosed in the Phase I and Phase II
Environmental Site Assessments prepared for the City by Bonestroo,
BLW.254468v8
SH155-149 1
Rosene, Anderlik & Associates dated November 24, 2004 (Phase I) and
January 20, 2005 (Phase II) ("Environmental Assessments").
3.1.4 Seller shall have performed all of the obligations required to be performed
by Seller under this Agreement, as and when required by this Agreement.
3.1.4.1 Seller shall remove from the northwesterly corner of the Land all
construction materials set forth in the Phase II Environmental
Assessment cleanup list prepared by Bonestroo Rosene Anderlik
and Associates dated January 20, 2005 . Seller shall also remove
from the northeasterly corner of the Land the iron castings, scrap
metal, piping, old machinery, and the trailer identified in the Phase
II Environmental Assessment.
3.1.4.2 The condition set forth in Section 3.1.4.1 above shall be deemed
satisfied upon verification by Buyer.
3.1.4 Buyer shall have determined, in its sole judgment, on or before the Closing
Date, that any federal, state, or local requirements for reclamation or
restoration of the Property have been met.
3.1.5 Buyer shall have determined, in its sole judgment, on or before the Closing
Date, that Buyer will have satisfactory access to the Land.
3.2 Seller's Contingencies. By no later than thirty (30) days following mutual
execution of this Agreement, Seller's governing body shall have approved the
transaction contemplated hereby as required by Minnesota Statutes and Seller's
governing documents.
3.3 Mutual Contingencies. On or before the Closing Date, Buyer and Prior Lake
Water Ski Association (the "Ski Association") shall have executed an agreement
for long-term use of the Property by the Ski Association. This contingency is for
the benefit of both Seller and Buyer and can be waived only by written instrument
executed by both Buyer and Seller.
4. Access to Property. Seller shall allow Buyer and Buyer's agents and contractors access
to the Property without charge and at all reasonable times for the purpose of Buyer's
investigation and testing the same. Seller shall make available, upon reasonable notice, to
Buyer and Buyer's agent and contractors without charge all records, information and
correspondence in Seller's possession relating to the Property and Hazardous Substances
(as hereinafter defined) affecting the Property and Buyer shall have the right to interview
those employees of Seller who may have knowledge of such matters. Buyer shall pay all
costs and expenses of such investigation and testing. Buyer shall further repair and restore
any damage to the Property caused by Buyer's testing and return the Property to
substantially the same condition as existed prior to such entry.
BLW-254468v8
SH155-149 2
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5. Easements and Licenses.
5.1 Access Easement. At Closing, Seller shall grant to the City, its successors and
assigns, a perpetual, nonexclusive appurtenant easement over that approximately
23-acre parcel of land to be retained by Seller and legally described on Exhibit B
hereto attached hereto ("Seller's Retained Parcel") for ingress and egress to the
Property for the benefit of the Property's owners and tenants, and their respective
officers, employees, agents, contractors, guests, invitees (including but not limited
to the Ski Association), successors and assigns (the "Access Easement"), in the
form of Exhibit C attached hereto.
5.2 Rail and Access Easement. Seller may reserve in the Warranty Deed to be
delivered hereunder a perpetual, nonexclusive appurtenant easement by
agreement of Buyer and Seller for the purpose of constructing, operating,
maintaining and removing a railroad spur line and providing vehicular access to
the west (the "Rail and Access Easement"), in the form of Exhibit D attached
hereto.
5.3 Water Use License. At Closing, Buyer will execute and deliver to Seller a license,
in the form of Exhibit E attached hereto, permitting Seller to draw water from the
Property (the "Water Use License").
6. Closing. The closing of the purchase and sale contemplated by this Agreement (the
"Closing") shall occur on a date and time mutually agreeable to Buyer and Seller but no
later than December 15, 2005 (the "Closing Date"). The Closing shall take place at the
office of Kennedy & Graven, Chartered, in Minneapolis, MN or at such other place as
may be agreed to by Seller and Buyer. Seller agrees to deliver possession of the
Property to Buyer on the Closing Date. Time is ofthe essence.
7. Closing Documents.
7.1 Seller's Closing Documents. On the Closing Date, Seller shall execute and deliver to
Buyer the following documents, all in form and content reasonably satisfactory to
Buyer:
7.1.1 Warranty Deed. A Warranty Deed, conveying the Property (including
without limitation existing easements appurtenant to the Land) to Buyer,
free and clear of all encumbrances, and reserving to Seller the Rail and
Access Easement.
7.1.2 Access Easement. The Access Easement.
7.1.2 AL T A Affidavit. An Affidavit of Title by Seller indicating that on the
Closing Date there are no outstanding, unsatisfied judgments, tax liens or
bankruptcies against or involving Seller or the Property; that there has been
no skill, labor or material furnished to the Property for which payment has
not been made or for which mechanics. liens could be filed; and that
there are no other unrecorded int~rests in the Property, together with
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SH155-149 3
whatever standard owner's affidavit (ALTA Form) which may be required
by Title to issue an Owner's Policy of Title Insurance with the standard
exceptions waived (other than with respect to matters which may be
disclosed by a survey).
7.1.3 Non-Foreign Affidavit. A non-foreign affidavit, properly executed,
containing such information as is required by Internal Revenue Code
Section 1445(b )(2) and its regulations.
7.1.4 Designation Agreement. A Designation Agreement designating the
"reporting person" for purposes of completing Internal Revenue Form
1099 and, if applicable, Internal Revenue Form 8594.
7.1.5 Well Certificate. A Certificate signed by Seller warranting that there are
no "Wells" on the Property within the meaning of Minn. Stat. ~ 1031 or if
there are "Wells," a Well Certificate in the form required by law.
7.1.6 Tank Certificate. If the Property contains or contained a storage
tank, an affidavit with respect thereto, as required by Minn. Stat. ~ 116.48.
7.1.7 Declaration of Covenants and Restrictions and Right of Entry. The
Declaration of Covenants and Restrictions and Right of Entry, in the form
of Exhibit F attached hereto.
7.1.8 Other. All other documents reasonably determined by Buyer to be
necessary to transfer the Property to Buyer free and clear of all
encumbrances except those accepted by Buyer pursuant to Section 6 of
this Agreement.
7.2 Buver's Closing Documents. On the Closing Date, Buyer will execute and
deliver to Seller the following:
7.2.1. Cash Portion of the Bargain Sale. The Cash Portion of the Bargain Sale, by
wire transfer of U.S. Federal Funds, or by cashier's check payable to
Seller, along with other amounts that are the responsibility of Buyer
hereunder.
7.2.2. Water Use License. The Water Use License.
7.2.3 Other Documents. All other documents reasonably determined by Buyer to
be necessary to transfer the Property to Buyer free and clear of all
encumbrances except those accepted by Buyer pursuant to Section 6 of
this Agreement.
8. Prorations. Seller and Buyer agree to the following prorations and allocation of costs
regarding this Agreement:
8.1 Title Insurance and Closing Fee. Buyer shall pay all costs of the Title Evidence
and all premiums required for the issuance of any Owner's Title Policy required
BLW-254468v8
SH155-149 4
by Buyer. Buyer shall pay any reasonable and customary closing fee or charge
imposed by any closing agent designated by Title.
8.2 Deed Tax. Buyer shall pay all state deed tax regarding the Warranty Deed to be
delivered by Seller under this Agreement.
8.3 Real Estate Taxes and Special Assessments. Seller shall pay, on or before the
Closing Date, all special assessments levied, pending or constituting a lien against
the Property as of the Closing Date including without limitation any installments
of special assessments including interest payable with general real estate taxes
in 2005. Seller shall also pay, on or before the Closing Date, all outstanding special
assessments payable after 2005 that are levied, pending or constitute a lien as of
the date of this Agreement. Seller shall pay general real estate taxes payable in
2004 and all prior years. General real estate taxes payable in 2005 shall be
prorated by Seller and Buyer as of the Closing Date based upon a calendar
fiscal year.
8.4 Recording Costs. Seller shall pay the cost of recording all documents necessary to
place record title in the condition warranted by Seller in this Agreement. Buyer
shall pay the cost of recording all other documents.
8.5 Attorney's Fees. Each of the parties shall pay its own attorneys fees.
9. Title Examination. Title Examination will be conducted as follows:
9.1 Seller's Title Evidence. It is anticipated that Buyer will procure at Buyer's sole
expense the following items (collectively, "Title Evidence")
9.1.1 Title Insurance Commitment. An updated commitment ("Title
Commitment") for an ALTA Form Owner's Policy of Title Insurance
insuring title to the Property, deleting standard exceptions and including
affirmative insurance regarding contiguity, access, appurtenant
easements and such other matters as may be required by Buyer, in the
amount of the Property Value, issued by Scott County Abstract and Title,
Inc. ("Title") and all appropriate judgment and bankruptcy searches.
The Title Commitment will commit Title to insure title to the Property free
and clear of all encumbrances. Seller shall deliver to Title or Buyer an
Abstract of Title to the Property (if available) certified to a current date.
9.1.2 Survey. Buyer may cause to be prepared, at Buyer's sole cost, an updated
ALTA survey of the Property, which shall legally describe and locate
Seller's Retained Parcel, the Access Easement area, and the Rail Easement
area.
9.1.3 State Taxes. A report from Title or other approved abstracting company
listing all liens for unpaid sales or withholding taxes on file against Seller
(or against any trade name or business named used by Seller) which are 'on
file in the offices of the Secretary of State of the State of Minnesota or with
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SH155-149 5
the County Recorder for the Scott County, and if the Seller does business
in another County with the County Recorder for that County.
9.2 Buver's Objections. Within ten (10) days after receiving the last of the Title
Evidence, Buyer will make written objections ("Objections") to the form and/or
contents of the Title Evidence. Buyer's failure to make Objections within such
time period will constitute waiver of the Objections. Seller will have until
December 31, 2005 to cure the Objections. Seller shall use commercially
reasonable efforts to correct any Objections. To the extent an Objection can be
satisfied by the payment of money, Buyer shall have the right to apply a portion
ofthe cash payable to Seller at the Closing to the satisfaction of such Objection
and the amount so applied shall reduce the amount of cash payable to Seller at
the Closing, provided that such amount shall not exceed $5,000.00. If the
Objections are not cured by or before Closing, Buyer will have the option to do
any of the following:
9.2.1 Terminate this Agreement, whereupon Seller shall refund any amount paid
by Buyer to Seller pursuant to this Agreement.
9.2.2 Waive the objections and proceed to close.
9.3 Title Policy. Buyer shall receive at closing the title policy ("Title Policy") issued
by Title pursuant to the Commitment, or a suitably marked Commitment initialed
by Title obligating Title to issue such a Title Policy in the form required by the
Commitment as approved by Buyer.
10. Representations and Warranties bv Seller. Seller represents and warrants to Buyer as
follows:
10.1 Title to Real Property. Seller owns the Property, free and clear of all
encumbrances, except those encumbrances disclosed in the title commitment issued
by First American Title Insurance Company on October 26, 2004, as file number
NCS-122398 that have been accepted by Buyer pursuant to Section 9 herein.
10.2 Assessments. Seller has received no notice of actual or threatened special
assessments or reassessments ofthe Real Property. :
10.3 Environmental Laws. Except as set out in the Phase I and Phase II Environmental
Assessment:
10.3.1 To Seller's actual knowledge, no hazardous substances or wastes,
pollutants or contaminants (collectively, "Hazardous Substances") have
been generated or disposed of on the Property in violation of any
Environmental Law. The term "Environmental Law" shall mean any and
all federal, state and local laws, statutes, codes, ordinances, regulations,
rules, policies, consent decrees, judicial orders, administrative orders or
other requirements relating to the environment.
10.3.2 To Seller's actual knowledge, there has been no discharge, release or
threatened release of Hazardous Substances from the Property, and there
BLW-254468v8
SH155-149 6
are no Hazardous Substances or conditions in or on the Property that
may support a claim or cause of action under any Environmental Law.
10.3.3 To Seller's actual knowledge, the Property is not now, and never has
been, listed on any list of sites contaminated with Hazardous
Substances.
10.3.4 To Seller's actual knowledge, there have been no discharges or releases of
Hazardous Substances from Seller's Retained Parcel onto the Property.
10.4 Reclamation. To Seller's actual knowledge, all federal, state and local laws and
requirements for reclamation and restoration of the Property have been satisfied.
10.5 Rights of Others to Purchase Property. Seller has not entered into any other
contracts for the sale of the Property, nor are there any rights of first refusal
or options to purchase the Property or any other rights of others that might
prevent the consummation of this Agreement.
10.6 Seller's Defaults. To the actual knowledge of Seller, Seller is not in default
concerning any of its obligations or liabilities regarding the Property.
10.7 FIRPTA. Seller is not a "foreign person," "foreign partnership," "foreign trust" or
"foreign estate" as those terms are defined in Section 1445 of the Internal Revenue
Code.
10.8 Proceedings. There is no action, litigation, investigation, condemnation or
proceeding of any kind pending or to the best knowledge of Seller threatened
against Seller with respect to the Property or against any portion of the Property
10.9 Wells. The Seller certifies and warrants that the Seller does not know of any
"Wells" on the described Property within the meaning of Minn. Stat. S 1031.
This representation is intended to satisfy the requirements of that statute.
10.10 Reports. Seller has delivered to Buyer copies of all environmental reports and
studies relating to the Property which are in the possession of Seller.
10.11 Individual Sewage Treatment Systems. Solely for purposes of satisfying the
requirements of Minn. Stat. S 115,55 Seller represents that there is no
"individual sewage treatment system" (within the meaning of that statute) on or
serving the Property.
10.12 Tanks. Seller certifies and warrants that there are no underground storage tanks
on the Property.
10.13 Leases. Licenses. Seller certifies and warrants that there are no leases, licenses
or other contractual rights affecting the Property, except with respect to the Ski
Association. A true and accurate copy of the current lease with the Ski
Association has been provided to Buyer.
11. Representations and Warranties of Buyer. Buyer represents and warrants to Seller as
follows:
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11.1 Organization. The Buyer is a home rule city and political subdivision organized
and existing under its Charter and the Constitution and laws of the State of
Minnesota.
11.2 Authorization. The governing body of Buyer' has duly authorized the transaction
contemplated by this Agreement.
11.3 Qualification for Deduction. Buyer is a political subdivision of the State of
Minnesota within the meaning of Section 170(c)(1) of the Internal Revenue
Code of 1986 and the Buyer's use of the Property shall be for a solely public
purpose within the meaning of Section 170( c)(1) of the Internal Revenue Code of
1986.
12. Intentionally Omitted.
13. Condemnation. If, prior to the Closing, eminent domain proceedings are commenced
against all or any part of the Property, Seller shall immediately give notice to Buyer of
such fact and at Buyer's option (to be exercised within thirty days after Seller's
notice), this Agreement shall terminate, in which event neither party will have further
obligations under this Agreement. If Buyer shall fail to give such notice then there shall be
no reduction in the Property Value, and Seller shall assign to Buyer at the Closing all
of Seller's right, title and interest in and to any award made or to be made in the
condemnation proceedings.
14. Indemnification.
14.1 Mutual Indemnification. Seller shall indemnify and hold Buyer harmless from all
liabilities (including reasonable attorneys' fees in defending against claims) arising
out of claims by third parties relating to acts, occurrences or omissions on, at or
with respect to the Property which occur on or before the actual Date of Closing
or relating to the falsity, inaccuracy or breach of any representation or warranty
made by Seller herein, including, without limitation, claims by governmental
authorities with respect to reclamation ofthe Property. Except as set forth in Section
14.2 hereof, Buyer shall indemnify and hold Seller harmless from all liabilities
(including reasonable attorneys' fees in defending against claims) arising out of
claims by third parties relating to acts or occurrences on, at or with respect to
the Property which occur after the actual Date of Closing.
14.2 Hazardous Substances. Notwithstanding any other provision in this Agreement to
the contrary, Seller shall indemnify and hold Buyer harmless from all liabilities
occurring after the actual ,Date of Closing that relate to or arise from any
discharge of Hazardous Substances from Seller's Retained Parcel onto the
Property. Seller hereby grants to Buyer the right to enter onto Seller's Retained
Parcel for the purpose of abating the actual or threatened discharge of Hazardous
Substances onto the Property, and Seller agrees to reimburse Buyer for the costs
of such abatement, provided that such right of entry and abatement may be
exercised only upon failure of the owner of the Burdened Parcel to commence
abatement of the actual or threatened discharge of Hazardous Substances within
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SH155-149 8
twenty (20) days after receipt of notice that such condition does or may exist on the
Burdened Parcel.
15. Assignment. Seller may not assign this Agreement without the written consent of Buyer
or by Buyer without the written consent of Seller.
16. Notices. Any notice required or permitted hereunder shall be given by personal delivery
upon an authorized representative of a party hereto; or if mailed by United States
registered or certified mail, return receipt requested, postage prepaid; or if transmitted by
facsimile copy followed by mailed notice; or if deposited cost paid with a nationally
recognized, reputable overnight courier, properly addressed as follows:
If to Seller: Aggregate Industries-North Central Region, Inc.
2915 Waters Road, Ste 105
Eagan MN 55121
Attn: Bob Bieraugel
With copy to: Todd Anlauf
Oppenheimer, Wolff & Connelly
45 South Seventh Street
Minneapolis, MN 55402-1609
If to Buyer: City of Shakopee
Attn: Mark McNeill, City Administrator
129 South Holmes Street
Shakopee, MN 55379
With Copy to: Jim Thompson
Kennedy & Graven, Chartered
200 South Sixth Street, #470
Minneapolis, MN 55402
Notices shall be deemed effective on the earlier of the date of receipt or the date of
deposit, as aforesaid; provided, however, that if notice is given by deposit, the time for
response to any notice by the other party shall commence to run one business day after
any such deposit. Any party may change its address for the service of notice by giving
notice of such change 10 days prior to the effective date of such change.
17. Captions. The paragraph headings or captions appearing in this Agreement are for
convenience only, are not a part of this Agreement and are not to be considered in
interpreting this Agreement.
18. Entire Agreement. Modification. This written Agreement constitutes the complete
agreement between the parties and supersedes any prior oral or written agreements
between the parties regarding the Property. There are no verbal agreements that change
this Agreement and no waiver of any of its terms will be effective unless in a writing
executed by the parties.
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19. Binding Effect. This Agreement binds and benefits the parties and their successors and
assigns.
20. Controlling Law. This Agreement has been made under the laws of the State of
Minnesota, and such laws will control its interpretation.
21. Remedies. If Buyer or Seller defaults under this Agreement, Buyer or Seller, as the case
may be, shall have the right to terminate this Agreement by giving written notice to the
defaulting party. If the defaulting party fails to cure such default within 30 days of the
date of such notice, this Agreement will terminate. Upon such termination, Buyer or
Seller may pursue such legal or equitable remedies as it deems appropriate in a court of
competent jurisdiction. In lieu of termination, either party may pursue specific performance.\
22. Non-Merger. It is the intent of the parties hereto that, notwithstanding delivery of the
Deed to Buyer under this Agreement, the following provisions shall not merge with the
Deed but shall continue to of full force and effect: Sections 10, 11, 14 and 16.
Notwithstanding the foregoing, Seller's liability with respect to the representations and
warranties enumerated in Section 10 shall be limited to claims arising within one (1)
year of the Date of Closing.
SELLER AND BUYER HA VB EXECUTED THIS AGREEMENT as of the date first written
above.
SELLER BUYER
AGGREGATE INDUSTRIES-NORTH THE CITY OF SHAKOPEE,
CENTRAL REGION, INC., a Minnesota MINNESOTA, a Minnesota municipal
corporation corporation
By: By:
John J. Schmitt, Mayor
Its:
By: By:
Mark McNeill, City Administrator
Its:
By: By:
Judith Cox, City Clerk
Its:
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EXHIBIT A
TO AGREEMlliNT FOR BARGAIN SALE
LEGAL DESCRIPTION OF PROPERTY
PROPERTY DESCRIPTION, PROPOSED: (to be transferred to the City)
PARCEL B
That part of the Southwest Quarter of Section 2, Township 115, Range 22, Scott County,
Minnesota, lying southerly of the Chicago, St. Paul, Minneapolis and Omaha Railroad right-of-
way and lying westerly of the following described line:
Commencing at the southeast corner of said Southwest Quarter; thence South 88 degrees 54
minutes 09 seconds West, assumed bearing, along the south line of said Southwest Quarter a
distance of 875.30 feet to the point of beginning of the line to be described; thence North 27
degrees 50 minutes 53 seconds West a distance of 227.96 feet; thence North 08 degrees 48
minutes 39 seconds East a distance of 410.90 feet more or less to the southerly right-of-way line
of said railroad and there terminating.
Subject to an easement to construct, maintain, repair and operate a railroad spur track, over under
and across the north 60.00 feet of the above described property adjacent to the southerly line of
said railroad right-of-way.
PARCEL B-1
That part of the North Half of the Northwest Quarter of Section 11, Township 115, Range 22,
Scott County, Minnesota, lying westerly and southerly of the following described line:
Commencing at the northeast corner of said North Half of the Northwest Quarter; thence South
88 degrees 54 minutes 09 seconds West, assumed bearing, along the north line of said North Half
of the Northwest Quarter a distance of 875.30 feet to the point of beginning of the line to be
described; thence South 27 degrees 50 minutes 53 seconds East a distance of 309.03 feet; thence
South 81 degrees 27 minutes 05 seconds East a distance of 60.00 feet; thence North 70 degrees
30 minutes 38 seconds East a distance of 237.31 feet; thence North 86 degrees 26 minutes 19
seconds East a distance of 447.75 feet more or less to a point on the east line of said North Half
of the Northwest Quarter distant 191.94 feet southerly of the northeast corner and there
terminating.
EXHIBIT B
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To AGREEMENT FOR BARGAIN SALE
Legal Description of Seller's Retained Parcel
PARCEL A
That part of the Southwest Quarter of Section 2, Township 115, Range 22, Scott County,
Minnesota, lying southerly of the Chicago, St. Paul, Minneapolis and Omaha Railroad right-of-
way and easterly of the following described line:
Commencing at the southeast corner of said Southwest Quarter; thence South 88 degrees 54
minutes 09 seconds West, assumed bearing, along the south line of said Southwest Quarter a
distance of 875.30 feet to the point of beginning of the line to be described; thence North 27
degrees 50 minutes 53 seconds West a distance of 227.96 feet; thence North 08 degrees 48
minutes 39 seconds East a distance of 410.90 feet more or less to the southerly right-of-way line
of said railroad and there terminating.
Together with an easement to construct, maintain, repair and operate a railroad spur track, over,
under and across the north 60.00 feet of that part of the Southwest Quarter of Section 2,
Township 115, Range 22, Scott County, Minnesota, lying southerly of the southerly right-of-way
line of the Chicago, St. Paul, Minneapolis and Omaha railroad and westerly of the following
described line:
Commencing at the southeast corner of said Southwest Quarter; thence South 88 degrees 54
minutes 09 seconds West, assumed bearing, along the south line of said Southwest Quarter a
distance of 875.30 feet to the point of beginning of the line to be described; thence North 27
degrees 50 minutes 53 seconds West a distance of 227.96 feet; thence North 08 degrees 48
minutes 39 seconds East a distance of 410.90 feet more or less to the southerly right-of-way line
of said railroad and there terminating.
ALSO TOGETHER WITH
That part of the East Half of the Southwest Quarter of Section 2, Township 115, Range 22, Scott
County, Minnesota, described as follows:
Commencing at the intersection of the east line of said East Half of the Southwest Quarter and
the south line of State Trunk Highway No. 101 right-of-way; thence running west along said
south right-of-way line of said Highway No. 101, 100 feet; thence south parallel to said east line
to the north line of the Chicago, St. Paul, Minneapolis and Omaha Railroad right-of-way; thence
easterly along said north right-of-way line of said railroad to the east line of said East Half ofthe
Southwest Quarter; thence north on said east line to the place of beginning.
EXCEPTING THEREFROM, the north 380 feet thereof.
And
PARCEL A-I
That part of the North Half of the Northwest Quarter of Section 11, Township 115, Range 22,
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SH155-149 B-2
Scott County, Minnesota, described as follows:
Beginning at the northeast comer of said North Half of the Northwest Quarter; thence South 88
degrees 54 minutes 09 seconds West, assumed bearing, along the north line of said North Half of
the Northwest Quarter a distance of 875.30 feet; thence South 27 degrees 50 minutes 53 seconds
East a distance of309.03 feet; thence South 81 degrees 27 minutes 05 seconds East a distance of
60.00 feet; thence North 70 degrees 30 minutes 38 seconds East a distance of237.31 feet; thence
North 86 degrees 26 minutes 19 seconds East a distance of 447.75 feet more or less to a point on
the east line of said North Half of the Northwest Quarter distant 191.94 feet southerly of the
northeast corner thence northerly along said east line a distance of 191.94 feet to the point of
beginning.
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EXHIBIT C
TO AGREEMENT FOR BARGAIN SALE
FORM OF ACCESS EASEMENT
ACCESS EASEMENT AGREEMENT
THIS ACCESS EASEMENT AGREEMENT (this "Agreement") is made and entered
into this day of October, 2005 ("Effective Date") by and between AGGREGATE
INDUSTRIES-NORTH CENTRAL REGION, INC., a Minnesota corporation ("Aggregate"),
and the CITY OF SHAKOPEE, a home rule city and political subdivision organized and existing
under its Charter and the Constitution and laws of the State of Minnesota ("City").
RECITALS:
A. Aggregate is the owner of the real property legally described on Exhibit A hereto
and hereby made a part hereof (hereinafter referred to as the "Aggregate Parcel");
,
B. Contemporaneous herewith, Aggregate is conveying to the City the real property
legally described on Exhibit B hereto and hereby made a part hereof (the "City Parcel"). The
City Parcel abuts the Aggregate Parcel.
C. As a condition of the purchase of the City Parcel, which does not have separate
access to a public street, the City requires, and Aggregate desires to grant to the City, an access
easement over the Aggregate Parcel.
D. Reference herein to "Parcel" or "Parcels" shall mean, respectively, either or both
the Aggregate Parcel and the City Parcel. The owners of the Aggregate Parcel and the City
Parcel shall be referred to herein separately as an "Owner" or, collectively, as "Owners"
WITNESSETH:
NOW, THEREFORE, for and in consideration of the sum of TEN AND NO/I00THS
DOLLARS ($10.00) in hand paid and other good and valuable consideration, Aggregate and the
City do hereby agree as follows:
1. Aggregate grants unto the City, its successors and assigns, a non-exclusive
appurtenant easement on, over, across, and through those portions of the Aggregate Parcel
currently used for roadway purposes as generally depicted on Exhibit C attached hereto (the
"Access Area") for the passage of pedestrians and motor vehicles at all times for the benefit of
the City Parcel and for the owner of the City Parcel, its legal representatives, successors and
assigns, employees, tenants, guests, visitors, and invitees, including without limitation members
and authorized guests of Prior Lake Water Ski Association ("Ski Association").
2. It is expressly agreed that the easement and rights-of-way hereby granted is
subject to the following terms and conditions:
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SH155-149 C-l
2.1. The Access Area and right-of-way granted hereby shall be for the mutual
use and benefit of Aggregate, its successors and assigns, and the owner of the City Parcel,
its successors and assigns, and their respective invitees, licensees, tenants, lessees,
customers, patrons, employees, servants, and visitors, including without limitation
members and authorized guests of the Ski Association.
2.2. The driveway currently located on the Access Area ("Driveway") shall be
maintained in its current location throughout the term of this Agreement. Aggregate shall
pay all costs of maintaining and repairing the Driveway.
2.3. Aggregate may utilize the Access Area for any purpose not inconsistent
with the City's use of the Access Area under the terms granted hereby, provided that
Aggregate agrees that reasonable vehicular and pedestrian access over and along the
Access Area shall at all times (except temporary interruption for repair or restoration) be
maintained and that no barrier which prevents or hinders such access shall be constructed,
maintained, or permitted to exist by Aggregate upon the Driveway or the Access Area;
provided, however, that access may be limited or restricted by way of a locked gate when
personnel of Owner or its tenant are not present on the Aggregate Parcel so long as
Owner has provided to the City a key that permits entry through said gate. In the event
that Aggregate, must interrupt the access to the Access Area for repair or restoration of
the Driveway, Aggregate shall notify the City of such interruption, giving at least two (2)
business days written notice pursuant to the notice provision in this Agreement, and shall
provide alternate temporary vehicular and pedestrian access between the City's Parcel
and public right-of-way over and across Aggregate's Parcel for the duration of said
interruption.
3. Nothing contained in this Agreement shall be deemed to be a dedication of any
portion of the Access Area to the general public, or for the general public, or for any public use
or purpose whatsoever, it being the intention of the parties hereto that the easement granted
herein shall be strictly limited to and for the purposes herein expressed.
4. The Owner of the City Parcel shall defend, indemnify, protect, and hold the
Owner of the Aggregate Parcel, its officers, employees, and agents harmless from any and all
loss, cost, or expense (including, but not limited to, attorneys' fees) arising out of claims,
demands, or causes of action of every kind and character, resulting from the negligence or willful
misconduct of the employees, contractors, agents, or persons acting under the control of the
Owner of the City Parcel. The Owner of the Aggregate Parcel hereby agrees to defend,
indemnify, protect, and hold the Owner of the City Parcel, its officers, employees, and agents,
harmless from any and all loss, cost, or expense (including, but not limited to, attorneys' fees)
arising out of claims, demands, or causes of action of every kind and character, resulting from
the negligence or willful misconduct of the employees, contractors, agents, or persons acting
under the control of the Owner of the Aggregate Parcel. Where personal injury, death, or loss of
or damage to property is the result of the joint negligence or willful misconduct of the Owners of
the Parcels, or persons operating under them as described above, each Owner's duty of
indemnification shall be in proportion to its allocable share of such joint negligence or willful
misconduct.
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5. The parties hereto further agree to execute such other documents and instruments
as are or may become necessary or convenient in order to effectuate and carry out the objectives
of this Agreement.
6. All notices, demands, statements, and requests required or permitted to be given
under this Agreement must be in writing and shall be deemed to have been properly given or
served by hand delivery or by depositing same in the United States mail, addressed to the other,
postage prepaid, and registered or certified mail, return receipt requested, at, the following
addresses:
If to Aggregate: Aggregate Industries-North Central Region, Inc.
2915 Waters Road, Ste 105
Eagan MN 55121
Attn: Bob Bieraugel
With copy to: Todd Anlauf
Oppenheimer, Wolff & Connelly
45 South Seventh Street
Minneapolis, MN 55402-1609
If to the City: City of Shakopee
Mark McNeill, City Administrator
129 South Holmes Street
Shakopee, MN 55379
With Copy to: James J. Thomson
Kennedy & Graven, Chartered
200 South Sixth Street, #470
Minneapolis, MN 55402
At such time as any party hereto transfers, encumbers, or mortgages its respective Parcel, or any
portion thereof, the Owner of such Parcel shall send notice to the other of the name and address
of such transferee or mortgagee and, thereafter, notices required or permitted hereunder shall be
sent to such transferee or mortgagee. Until such time as such notice is sent to the other, the
transferring Owner shall be deemed to be the agent for his respective transferees and/or
mortgagees for the purpose of service of notice hereunder. All notices, demands, and requests
shall, except as hereinafter set forth, be effective upon hand delivery or, as the case may be, upon
being deposited in the United State mail in accordance with the provisions hereof.
7. None of the terms or provisions of this Agreement shall be deemed to create a
partnership between the Owners in their respective businesses or otherwise, nor shall it cause
them to be considered joint venturers or members of any joining enterprise.
8. Invalidation of any of the provisions contained in this Agreement, or of the
application thereof to any person or party by judgment or court order, shall in no way affect any
BLW-254468v8
SH155-149 C-3
of the other provisions hereof or the application thereof to any other person or party and the same
shall remain in full force and effect.
9. If there shall be a default in the full, faithful, and punctual performance of any
obligation required hereunder; and, if, at the end of thirty (30) days (except in case of
emergencies, in which event reasonable notice shall be required) after receipt of written notice
from the nondefaulting Owner stating with particularity the nature and extent of such default, the
defaulting Owner has failed to cure such default; and, if a diligent effort is not then being made
to cure such default, then any owner, or the party to whom its authority has been delegated, shall
have, in addition to all remedies it may have at law or in equity, the right to perform such
obligation pursuant to this Agreement on behalf of such defaulting Owner and to be reimbursed
by such defaulting Owner for the cost thereof.
10. All, rights and remedies set forth in this Agreement are cumulative, and shall be
deemed to be in addition to any and all other rights and remedies at law or in equity, and shall
include (without regard to the notice and cure provisions provided for above) the right to restrain
by injunction any violation or threatened violation of any of the terms, covenants, or conditions
of this Agreement and to enforce specific performance of any such terms, covenants, or
conditions.
11. It is agreed and understood that until this Agreement is fully executed by both
parties hereto and fully-executed counterparts hereof delivered each to the other, there is not and
shall not be an agreement of any kind between such parties upon which any commitment,
undertaking, or obligation could or may be founded. It is further agreed and understood that
upon such full execution and delivery, this Agreement shall contain the entire agreement
between the parties hereto; and, that in executing this Agreement, the parties hereto are not
relying upon any statement, promise, or representation not specifically expressed herein; and,
that upon such full execution and delivery, this Agreement shall not be modified, changed, or
altered in any respect except by a instrument executed and delivered in the same manner as
required for this Agreement.
12. This Agreement and the Access Area (and rights granted, sold, and conveyed
hereby) shall be appurtenant to the City Parcel and shall run with the City Parcel and the
Aggregate Parcel, and shall be binding upon and inure to the benefit of the Owners of the City
Parcel and the Aggregate Parcel and their respective, agents, representatives, successors and
assigns.
13. Term. This Access Easement shall terminate on the tenth anniversary of the
Effective Date hereof("Termination Date"), subject to earlier termination as follows. Owner
may terminate the Access Easement after the fifth anniversary of the Effective Date hereof at
such time as Owner in its sole discretion commences construction of a spur rail line on the
Aggregate Parcel, provided that Owner shall give sixty days prior written notice to the City of
the commencement of such construction and termination of the Access Easement, or after the
City has secured and constructed suitable access in another location.
14. Due Authorization and Authoritv. Aggregate and the City hereby represent and
warrant to each other that this instrument has been duly and ,validly authorized by their
respective governing bodies, that each has the properly authority to enter into this instrument,
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and that this instrument constitutes the valid, legal, and binding agreement of said party,
enforceable in accordance with their terms, except as the same may be limited by bankruptcy,
insolvency, reorganization, or other laws relating to or affecting creditors' rights generally.
15. Invitee. Aggregate hereby acknowledges that the City and the invitees of the
City, including without limitation, members and authorized guests of the Ski Association, are
and shall be deemed to be the invitees of Aggregate.
TO HA VE AND TO HOLD said Access Area, subject as aforesaid, unto the City, its
successors and assigns, subject to the terms and provisions herein.
EXECUTED by the parties in duplicate original counterparts on the dates set forth in the
acknowledgments hereinbelow, but made effective for all purposes as of this _ day of
December, 2005.
AGGREGATE INDUSTRIES-NORTH
CENTRAL REGION, INC
By:
Name:
Title:
By:
Name:
Title:
STATE OF MINNESOTA }
sS.:
COUNTY OF HENNEPIN
This instrument was acknowledged before me on the day of ,
2005, by and , the
and . of
AGGREGATE INDUSTRIES-NORTH CENTRAL REGION, INC., a Minnesota corporation,
on behalf of said corporation.
Notary Public - State of Minnesota
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[SIGNATURE/ACKNOWLEDGMENT PAGE
FOR CITY OF SHAKOPEE ON FOLLOWING PAGE]
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SH155-149 C-6
CITY OF SHAKOPEE, MINNESOTA
By
John J. Schmitt, Mayor
By
Mark McNeill, City Administrator
By
Judith Cox, City Clerk
STATE OF MINNESOTA }
sS.:
COUNTY OF
The foregoing instrument vvas acknowledged before me this day of
, 2005 by the
of a home rule city
and political subdivision organized and existing under its Charter and the Constitution and laws
of the State of Minnesota, on behalf of said city.
Notary Public
This document drafted by:
Kennedy & Graven, Chartered
470 Pillsbury Center
Minneapolis, MN 55402
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EXHIBIT A
To Access Easement Agreement
Legal Description of Aggregate Parcel
PARCEL A
That part of the Southwest Quarter of Section 2, Township 115, Range 22, Scott County,
Minnesota, lying southerly of the Chicago, St. Paul, Minneapolis and Omaha Railroad right-of-
way and easterly of the following described line:
Commencing at the southeast corner of said Southwest Quarter; thence South 88 degrees 54
minutes 09 seconds West, assumed bearing, along the south line of said Southwest Quarter a
distance of 875.30 feet to the point of beginning of the line to be described; thence North 27
degrees 50 minutes 53 seconds West a distance of 227.96 feet; thence North 08 degrees 48
minutes 39 seconds East a distance of 410.90 feet more or less to the southerly right-of-way line
of said railroad and there terminating.
Together with an easement to construct, maintain, repair and operate a railroad spur track, over,
under and across the north 60.00 feet of that part of the Southwest Quarter of Section 2,
Township 115, Range 22, Scott County, Minnesota, lying southerly of the southerly right-of-way
line of the Chicago, St. Paul, Minneapolis and Omaha railroad and westerly of the following
described line:
Commencing at the southeast corner of said Southwest Quarter; thence South 88 degrees 54
minutes 09 seconds West, assumed bearing, along the south line of said Southwest Quarter a
distance of 875.30 feet to the point of beginning of the line to be described; thence North 27
degrees 50 minutes 53 seconds West a distance of 227.96 feet; thence North 08 degrees 48
minutes 39 seconds East a distance of 410.90 feet more or less to the southerly right-of-way line
of said railroad and there terminating.
ALSO TOGETHER WITH
That part of the East Half of the Southwest Quarter of Section 2, Township 115, Range 22, Scott
County, Minnesota, described as follows:
Commencing at the intersection of the east line of said East Half of the Southwest Quarter and
the south line of State Trunk Highway No. 101 right-of-way; thence running west along said
south right-of-way line of said Highway No. 101, 100 feet; thence south parallel to said east line
to the north line of the Chicago, St. Paul, Minneapolis and Omaha Railroad right-of-way; thence
easterly along said north right-of-way line of said railroad to the east line of said East Half of the
Southwest Quarter; thence north on said east line to the place of beginning.
EXCEPTING THEREFROM, the north 380 feet thereof.
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and
PARCEL A-I
That part of the North Half of the Northwest Quarter of Section 11, Township 115, Range 22,
Scott County, Minnesota, described as follows:
Beginning at the northeast corner of said North Half of the Northwest Quarter; thence South 88
degrees 54 minutes 09 seconds West, assumed bearing, along the north line of said North Half of
the Northwest Quarter a distance of 875.30 feet; thence South 27 degrees 50 minutes 53 seconds
East a distance of309.03 feet; thence South 81 degrees 27 minutes 05 seconds East a distance of
60.00 feet; thence North 70 degrees 30 minutes 38 seconds East a distance of237.31 feet; thence
North 86 degrees 26 minutes 19 seconds East a distance of 447.75 feet more or less to a point on
the east line of said North Half of the Northwest Quarter distant 191.94 feet southerly of the
northeast corner thence northerly along said east line a distance of 191.94 feet to the point of
beginning.
BLW-254468v8
SH155-149 C-9
EXHIBIT B
To Access Easement Agreement
Legal Description of City Parcel
PROPOSED PROPERTY DESCRIPTION, PARCEL B:
That part of the Southwest Quarter of Section 2, Township 115, Range 22, Scott County,
Minnesota, lying southerly of the Chicago, St. Paul, Minneapolis and Omaha Railroad right-of-
way and lying westerly ofthe following described line:
Commencing at the southeast corner of said Southwest Quarter; thence South 88 degrees 54
minutes 09 seconds West, assumed bearing, along the south line of said Southwest Quarter a
distance of 875.30 feet to the point of beginning of the line to be described; thence North 27
degrees 50 minutes 53 seconds West a distance of 227.96 feet; thence North 08 degrees 48
minutes 39 seconds East a distance of 410.90 feet more or less to the southerly right-of-way line
of said railroad and there terminating.
Subject to an easement to construct, maintain, repair and operate a railroad spur track, over under
and across the north 60.00 feet of the above described property adjacent to the southerly line of
said railroad right-of-way.
And
PROPOSED PARCEL B-1:
That part of the North Half of the Northwest Quarter of Section 11, Township 115, Range 22,
Scott County, Minnesota, lying westerly and southerly of the following described line:
Commencing at the northeast corner of said North Half of the Northwest Quarter; thence South
88 degrees 54 minutes 09 seconds West, assumed bearing, along the north line of said North Half
of the Northwest Quarter a distance of 875.30 feet to the point of beginning of the line to be
described; thence South 27 degrees 50 minutes 53 seconds East a distance of 309.03 feet; thence
South 81 degrees 27 minutes 05 seconds East a distance of 60.00 feet; thence North 70 degrees
30 minutes 38 seconds East a distance of 237.31 feet; thence North 86 degrees 26 minutes 19
seconds East a distance of 447.75 feet more or less to a point on the east line of said North Half
of the Northwest Quarter distant 191.94 feet southerly of the northeast corner and there
terminating.
BLW-254468v8
SH155-149 C-I0
EXHIBIT C
To Access Easement Agreement
Depiction of Access Area
BLW-254468v8
SH155-149 C-ll
EXIllBIT D
TO AGREEMENT FOR BARGAIN SALE
FORM OF RAIL AND ACCESS EASEMENT
To be reserved in Warranty Deed
[TO BE INSERTED INTO WARRANTY DEED]
TO HAVE AND TO HOLD the Subject Property, together with all and singular the
rights and appurtenances thereunto in anywise belonging, unto Grantee, its successors and
assigns, forever; and Grantor does hereby bind itself, its successors and assigns, to warrant and
forever defend, all and singular, the Subject Property unto Grantee, its successors and assigns,
against every person whomsoever lawfully claiming or to claim the same or any part thereof, by,
through or under Grantor, but not otherwise, subject, however, to the Permitted Exceptions, the
Rail and Access Easement and the other matters detailed herein.
RESERVATION OF RAIL and ACCESS EASEMENT
Grantor hereby reserves, and by acceptance of this Deed Grantee hereby acknowledges and
agrees that the Property herein conveyed is and shall be subject to, a non-exclusive easement (the
"Rail and Access Easement") over and across the north 60.00 feet adjacent to the southerly line of
said railroad right-of-way of the Subject Property (the "Rail and Access Easement Area"), for the
benefit of the owner, and its successors and assigns ("Owner") of that certain property legally
described in Exhibit C hereto (the "Retained Parcel"), for the purpose of installing, operating,
maintaining, repairing and removing a spur railroad track and for vehicular access to and from the
Retained Parcel to the west ("Permitted Use"), subject to the following terms.
A. The Rail and Access Easement shall be used only for the Permitted Use and the
Permitted Use shall be solely for the benefit of the Owner, the Owner's tenants,
and their employees, contractors, agents and invitees; provided, however, that the
owner of the Subject Property shall be permitted to use the Rail and Access
Easement Area for access and for any other uses not inconsistent with the
Permitted Use.
B. Owner shall pay all expenses for the installation, operation, maintenance, repair
and removal of any improvements constructed or placed in, under or upon the
Rail and Access Easement Area. Owner shall comply with all federal and state
transportation and safety regulations and shall obtain and comply with the terms
of all permits, licenses and other approvals required to construct and operate a
railroad spur track.
C. Owner shall keep the Rail Easement Area and the Permitted Use in good
condition, free from dust, debris and hazardous objects, and shall maintain the
roadway located thereon in such condition as to allow vehicular access,along such
roadway at all times. Upon construction or installation of railroad tracks, Owner
will construct a fence along the southerly boundary of the Rail and Access
Easement Area designed and maintained to prevent persons other than Owner, its
BLW-254468v8
SH155-149 D-l
employees, contractors, and agents from accessing the railroad tracks located on
the Rail and Access Easement Area during periods when rail cars are present;
provided, however, that Owner shall install one or more gates that permit the
owner of the Subject Property and its employees, contractors, agents and invitees
to access the roadway located on the Rail and Access Easement Area.
D. Owner shall keep the Rail and Access Easement Area free from hazardous
substances, wastes, pollutants and contaminants (collectively, "Hazardous
Substances"). Owner shall indemnify and hold Grantee, its officers, employees,
and agents, and their successors and assigns, harmless from all liabilities that
relate to or arise from any discharge of Hazardous Substances
E. Owner shall carry Comprehensive General Public Liability Insurance covering the
legal liability of Licensor against claims for bodily injury, death or property
damage occurring on, in or about the Rail and Access Easeement for a limit of at
least One Million Dollars ($1,000,000.00) single limits, bodily injury and/or site
damage combined. Owner shall ensure that any tenant shall maintain the same
coverage. Grantee shall be named as additionally insured under said insurance,
and owner shall deliver evidence thereof to grantee.
F. Owner shall defend, indemnify, protect, and hold Grantee, its officers, employees,
and agents, and their successors and assigns, harmless from any and all loss, cost,
or expense (including, but not limited to, attorneys' fees) arising out of claims,
demands, or causes of action of every kind and character, resulting from the acts
of the employees, contractors, agents, or persons acting under the control of the
Owner on or relating to the Rail and Access Easement Area.
G. If there shall be a default in the full, faithful, and punctual performance of any
obligation required hereunder; and, if, at the end of thirty (30) days (except in
case of emergencies, in which event reasonable notice shall be required) after
receipt of written notice from owner of the Subject Property stating with
particularity the nature and extent of such default, Owner has failed to cure such
default; and, if a diligent effort is not then being made to cure such default, then
the owner of the Subject Property, or the party to whom its authority hasbeen
delegated, shall have, in addition to all remedies it may have at law or in equity,
the right to perform such obligation on behalf of Owner and to be reimbursed by
such Owner for the cost thereof.
G. The Rail and Access Easement shall be appurtenant to the Retained Parcel and
shall run with the Subject Property and the Retained Parcel, and shall be binding
upon and inure to the benefit of the owners of ' the Subject Property and the
Retained Parcel and their respective, agents, representatives, successors and
assigns. The term of the Rail and Access Easement and the obligations of the
parties hereunder shall be perpetual.
BLW-254468v8
SH155-149 D-2
EXECUTED by the parties in duplicate original counterparts on the dates set forth in the
acknowledgments hereinbelow, but made effective for all purposes as of this _ day of
,2005.
AGGREGATE INDUSTRIES-NORTH
CENTRAL REGION, INC
By:
Name:
Title:
By:
Name:
Title:
STATE OF MINNESOTA }
sS.:
COUNTY OF HENNEPIN
This instrument was acknowledged before me on the day of ,
2005, by and , the
and , of
AGGREGATE INDUSTRIES-NORTH CENTRAL REGION, INC., a Minnesota corporation,
on behalf of said corporation.
Notary Public - State of Minnesota
[SIGNATURE/ACKNOWLEDGMENT PAGE
FOR CITY OF SHAKOPEE ON FOLLOWING PAGE]
BLW-254468v8
SH155-149 D-3
CITY OF SHAKOPEE, MINNESOTA
By
John J. Schmitt, Mayor
By
Mark McNeill, City Administrator
By
Judith Cox, City Clerk
STATE OF MINNESOTA }
sS.:
COUNTY OF
The foregoing instrument was acknowledged before me this day of
, 2005 by the
of a home rule city
and political subdivision organized and existing under its Charter and the Constitution and laws
of the State of Minnesota, on behalf of said city.
Notary Public
This document drafted by:
Kennedy & Graven, Chartered
470 Pillsbury Center
Minneapolis, MN 55402
BL W-254468v8
SH155-149 D-4
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EXlDBIT E
TO AGREEMENT FOR BARGAIN SALE
FORM OF WATER ACCESS LICENSE
WATER ACCESS LICENSE
This License ("License") is made this _ day of , 2005 ("Effective Date"),
between Aggregate Industries - North Central Region, Inc., a Minnesota corporation
("Licensee") and City of Shakopee ("Licensor").
RECITALS
Licensor and Licensee entered into that certain Purchase Agreement dated October -' 2005
("Purchase Agreement").
As consideration for Licensee entering into the Purchase Agreement, Licensor agreed to grant
this License to Licensee.
AGREEMENT
License. Licensor hereby grants to Licensee a license to enter onto that ,certain real
property consisting of approximately 111.425 acres, located in the City of Shakopee, Scott
County, Minnesota, as legally described on the attached Exhibit "A" and depicted on Exhibit "B"
(the "Property"), for the sole purpose of accessing the quarry lake and obtaining water for dust
control and similar uses on the Seller's Retained Property.
Term. This License shall have a term of twenty five (25) years from the Effective Date
unless terminated earlier pursuant to Paragraph 9 below.
Use of Property. Licensee shall enter the Property solely for the purpose of collecting
water from Quarry Lake.
Assignment. This License is assignable or transferable to any tenant that Licensee shall
have on the Seller's Retained Property.
Alterations. Licensee may not make any alterations to the Property without the prior
written consent of Licensor.
Insurance. Licensee shall carry Comprehensive General Public Liability Insurance
covering the legal liability of Licensor against claims for bodily injury, death or property damage
occurring on, in or about the Property for a limit of at least One Million Dollars ($1,000,000.00)
single limits, bodily injury and/or site damage,combined. Licensee shall ensure that any tenant
on Seller's Retained Property shall maintain the same coverage. Licensor shall be named as
additionally insured under said insurance, and Licensee shall deliver evidence thereof to
Licensor.
BLW-254468v8
SH155-149 E-l
Default. If Licensee violates any of the terms herein, Licensor may terminate this
License by providing written notice of such termination to Licensee pursuant to Paragraph 10
below.
Notices. All notices shall be in writing and shall be deemed to have been duly given and
effective: (i) on the date of delivery, if delivered personally; (ii) on the earlier of the third (3rd)
business day after mailing or the date of the return receipt acknowledgement, if mailed by first
class mail, postage prepaid, by certified or registered mail, return receipt requested; (iii) on the
date of transmission, if sent by facsimile; or (iv) on the day after delivery to Federal Express or
similar overnight courier or the express mail service maintained by the United States Postal
Service. If a party delivers a notice in a different manner than described in the preceding
sentence, notice shall be effective as of the date that the other party actually receives the notice.
The party sending the notice shall also fax or mail a copy of the notice to the parties' respective
attorney via first class United States mail. Notice shall be made to the addresses set forth below:
Ifto Licensee: Mr. Bob Bieraugel
Aggregate Industries - North Central Region, Inc.
Suite 105
2915 Waters Road
Eagan, MN 55121
Phone: (651) 683-8123
Fax: (651) 683-8192
with a copy to: Todd Anlauf, Esq.
Oppenheimer Wolff & Donnelly LLP
Plaza VII, Suite 3400
45 South 7th Street
Minneapolis, MN 55402
Phone: (612) 607-7406
Fax: (612) 607-7100
If to Licensor: City of Shakopee
Mark McNeill, City Administrator
129 South Holmes Street
Shakopee, MN 55379
Phone: (952)233-9500
Fax: (952-233-3801
with a copy to:James J. Thomson
Kennedy & Graven, Chartered
200 South Sixth Street, #470
Minneapolis, MN 55402
Use Conditions. Licensee hereby agrees to comply with all federal and state safety
regulations including, but not limited to, the Federal Occupational Safety & Health Act and the
Federal Mine Safety & Health Act. Licensee further agrees that he will restrict his presence on
BLW-254468v8
SH155-149 E-2
the Property to the shortest amount of time necessary to obtain the necessary water. Licensee
further agrees to keep the gate closed and locked when he is not on the Property.
Indemnification. Licensee hereby agrees to defend, indemnify and hold harmless
Licensor, its directors, officers, employees, agents, contractors, subcontractors, licensees,
invitees, successors and assigns ("Indemnified Parties") from and against any and all claims,
losses, damages, liabilities, judgments, costs ,and expenses (including, without limitation,
attorneys' fees and costs incurred in the investigation, defense and settlement of claims) incurred
by the Indemnified Parties as a result of or in connection with the activities of Licensee or his
guests on the Property. Licensee shall bear, pay and discharge, as and when the same become
due and payable, any and all such judgments or claims for damages, penalties or otherwise,
against the Indemnified Parties, shall hold the Indemnified Parties harmless against all claims,
losses, damages, liabilities, costs and expenses, and shall assume the burden and expense of
defending all suits, administrative proceedings and negotiations of any description with any and
all persons and entities. This indemnification shall remain in full force and effect and shall
survive the early termination or expiration of this License.
(SIGNATURE PAGE FOLLOWS)
BLW-254468v8
SH155-149 E-3
.
LICENSOR
CITY OF SHAKOPEE
By
John J. Schmitt, Mayor
By
Mark McNeill, City Administrator
By
Judith Cox, City Clerk
LICENSEE
AGGREGATE INDUSTRIES - NORTH
CENTRAL REGION, INC.,
a Minnesota corporation
By:
Name:
Its:
By:
Name:
Its:
BLW-254468v8
SH155-149 E-4
EXHIBIT "A"
PROPOSED PROPERTY DESCRIPTION,
PARCEL B:
That part of the Southwest Quarter of Section 2, Township 115, Range 22, Scott County,
Minnesota, lying southerly of the, Chicago, St. Paul, Minneapolis and Omaha Railroad right-of-
way and lying westerly ofthe following described line:
Commencing at the southeast corner of said Southwest Quarter; thence South 88 degrees 54
minutes 09 seconds West, assumed bearing, along the south line of said Southwest Quarter a
distance of 875.30 feet to the point of beginning of the line to be described; thence North 27
degrees 50 minutes 53 seconds West a distance of 227.96 feet; thence North 08 degrees 48
minutes 39 seconds East a distance of 410.90 feet more or less to the southerly right-of-way line
of said railroad and there terminating.
Subject to an easement to construct, maintain, repair and operate a railroad spur track, over under
and across the north 60.00 feet of the above described property adjacent to the southerly line of
said railroad right-of-way.
And
PARCEL B-1:
That part of the North Half of the Northwest Quarter of Section 11, Township 115, Range 22,
Scott County, Minnesota, lying westerly and southerly of the following described line:
Commencing at the northeast corner of said North Half of the Northwest Quarter; thence South
88 degrees 54 minutes 09 seconds West, assumed bearing, along the north line of said North Half
of the Northwest Quarter a distance of 875.30 feet to the point of beginning of the line to be
described; thence South 27 degrees 50 minutes 53 seconds East a distance of309.03 feet; thence
South 81 degrees 27 minutes 05 seconds East a distance of 60.00 feet; thence North 70 degrees
30 minutes 38 seconds East a distance of 237.31 feet; thence North 86 degrees 26 minutes 19
seconds East a distance of 447.75 feet more or less to a point on the east line of said North Half
of the Northwest Quarter distant 191.94 feet southerly of the northeast corner and there
terminating.
EXHIBIT "B"
BLW-254468v8
SHl55-149 E-5
lOOZ/<:1/60 lOA O<;,,9LL :f::)l 9-3 6j7l-<;<;lHS
8A89j7j7<;,,-1\\18:
(NOllVJO'l A.nI3dO~d .10 NOllJId3G .L~3SNr)
.
EXlDBIT F
TO AGREEMENT FOR BARGAIN SALE
Form of Hazardous Substances Indemnity and Right of Entry
DECLARATION OF COVENANTS
AND RIGHT OF ENTRY
This DECLARATION OF COVENANTS, RESTRICTIONS AND RIGHT OF ENTRY
(the "Declaration") is made as of ,2005, by AGGREGATE INDUSTRIES-
NORTH CENTRAL REGION, INC., a Minnesota corporation, for itself and its successors and
assigns ("Declarant"), in favor of the CITY OF SHAKOPEE, MINNESOTA, a home rule city
and political subdivision organized and existing under its Charter and the Constitution and laws
ofthe State of Minnesota ("City").
RECITALS
A. Declarant owns real property legally described on Exhibit 1 hereto (the
"Burdened Parcel").
B. Declarant owns real property legally described on Exhibit 2 hereto (the
"Benefited Parcel"), which Declarant is conveying to the City. The Benefited Parcel abuts the
Burdened Parcel.
C. The City requires as a condition of its purchase of the Benefited Parcel that
Declarant enter into this Declaration.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, Declarant hereby agrees,
covenants, and declares that the Burdened Parcel shall be owned, held, operated, mortgaged,
conveyed, encumbered, and transferred subject to and burdened by the following covenants and
restrictions:
1. Declarant, as owner of the Burdened Parcel, shall indemnify and hold the onwer
of the Benefitted Parcel harmless from all liabilities occurring after the date hereto that relate. to
or arise from any discharge, dispersal, storage, release, disposal or escape ("Discharge") onto or
over the Benefited Parcel of asbestos, asbestos-containing materials, petroleum products or other
toxic or hazardous materials, hazardous substances or hazardous waste, pollutants or contaminants
(as defined in or designated pursuant to any applicable federal, state or local law, ordinance, rule or
regulation) (collectively "Hazardous Substances").
2. Without limiting obligations set forth in Paragraph 1 hereof, upon the discovery of
an actual or threatened Discharge of Hazardous Substances on or from the Burdened Parcel onto or
over the Benefited Parcel, the owner of the Burdened Parcel will promptly, diligently remediate or
cause the remediation of all Hazardous Substances on the Burdened Parcel and the Benefited Parcel
BLW-254468v8
SH155-149 F-l
I
to the extent required by all governmental authorities having jurisdiction and in accordance with all
applicable laws, ordinances and regulations.
3. The owner of the Benefited Parcel, its employees, agents, contractors, successors
and assigns shall have the right but not the obligation to enter upon the Burdened Parcel for the
purpose of abating the actual or threatened discharge of Hazardous Substances onto the Property,
and Seller agrees to reimburse Buyer for the costs of such abatement, provided that such right of
entry and abatement may be exercised only upon failure of the owner of the Burdened Parcel to
commence abatement of the actual or threatened discharge of Hazardous Substances within
twenty (20) days after receipt of notice that such condition does or may exist on the Burdened
Parcel.
4. It is the intent of Declarant that common ownership of the Burdened Parcel and
the Benefited Parcel shall not result in a merger of interests and shall not serve to terminate this
Declaration in whole or part or to extinguish the restrictions declared hereunder.
5. No delay or omission of the owner, of the Burdened Parcel in the exercise of any
right accruing upon any default of an owner of the Burdened Parcel shall impair such right or be
construed to be a waiver thereof, and every such right may be exercised at any time during the
continuance of such default. A waiver of a breach of, or a default in, any of the terms and
conditions of this Declaration shall not be construed to be a waiver of any subsequent breach of or
default in the same or any other provision o~this Declaration.
6. The terms of this Declaration shall inure to the benefit of and be binding upon the
Benefited Parcel and the Burdened Parcel respectively, to the end that the covenants shall run
with, bind and burden such property in perpetuity. This Declaration may be enforced by
injunction, and all other available legal and equitable remedies. This Declaration may be
amended only by written instrument executed by all of the owners of all or any portion of the
Burdened Parcel and the Benefited Parcel and filed of recor~ in the Office of the County
Recorder for Scott County, Minnesota.
IN WITNESS WHEREOF, Declarant has executed this agreement as of the day and year
first above written.
AGGREGATE INDUSTRIES-NORTH
CENTRAL REGION, INC.
By
Name
Its
By
Name
Its
BLW-254468v8
SH155-149 F-2
STATE OF MINNESOTA }
ss.:
COUNTY OF
The foregoing instrument was acknowledged before me this day of
, 2005, by the
of Aggregate Industries--North Central Region, Inc., a
corporation under the laws of Minnesota, by and on behalf of said corporation.
Notary Public
This document drafted by:
KENNEDY & GRAVEN, CHARTERED (BL W)
Suite 470
200 South Sixth Street
Minneapolis, MN 55402
(612) 337-9270
BLW-254468v8
SH155-149 F-3
.
EXlllBIT I
LEGAL DESCRIPTION OF THE BURDENED PARCEL
PARCEL A
That part of the Southwest Quarter of Section 2, Township 115, Range 22, Scott County,
Minnesota, lying southerly of the Chicago, St. Paul, Minneapolis and Omaha Railroad right-of-
way and easterly of the following described line:
Commencing at the southeast corner of said Southwest Quarter; thence South 88 degrees 54
minutes 09 seconds West, assumed bearing, along the south line of said Southwest Quarter a
distance of 875.30 feet to the point of beginning of the line to be described; thence North 27
degrees 50 minutes 53 seconds West a distance of 227.96 feet; thence North 08 degrees 48
minutes 39 seconds East a distance of 410.90 feet more or less to the southerly right-of-way line
of said railroad and there terminating.
,
Together with an easement to construct, maintain, repair and operate a railroad spur track, over,
under and across the north 60.00 feet of that part of the Southwest Quarter of Section 2,
Township 115, Range 22, Scott County, Minnesota, lying southerly of the southerly right-of-way
line of the Chicago, St. Paul, Minneapolis and Omaha railroad and westerly of the following
described line:
Commencing at the southeast corner of said Southwest Quarter; thence South 88 degrees 54
minutes 09 seconds West, assumed bearing, along the south line of said Southwest Quarter a
distance of 875.30 feet to the point of beginning of the line to be described; thence North 27
degrees 50 minutes 53 seconds West a distance of 227.96 feet; thence North 08 degrees 48
minutes 39 seconds East a distance of 410.90 feet more or less to the southerly right-of-way line
of said railroad and there terminating.
ALSO TOGETHER WITH
That part of the East Half of the Southwest Quarter of Section 2, Township 115, Range 22, Scott
County, Minnesota, described as follows:
Commencing at the intersection of the east line of said East Half of the Southwest Quarter and
the south line of State Trunk Highway No. 101 right-of-way; thence running west along said
south right-of-way line of said Highway No. 101, 100 feet; thence south parallel to said east line
to the north line of the Chicago, St. Paul, Minneapolis and Omaha Railroad right-of-way; thence
easterly along said north right-of-way line of said railroad to the east line of said East Half of the
Southwest Quarter; thence north on said east line to the place of beginning.
EXCEPTING THEREFROM, the north 380 feet thereof.
and
BLW-254468v8
SH155-149 F-4
.
PARCEL A-I
That part of the North Half of the Northwest Quarter of Section 11, Township 115, Range 22,
Scott County, Minnesota, described as follows:
Beginning at the northeast comer of said North Half of the Northwest Quarter; thence South 88
degrees 54 minutes 09 seconds West, assumed bearing, along the north line of said North Half of
the Northwest Quarter a distance of 875.30 feet; thence South 27 degrees 50 minutes 53 seconds
East a distance of309.03 feet; thence South 81 degrees 27 minutes 05 seconds East a distance of
60.00 feet; thence North 70 degrees 30 minutes 38 seconds East a distance of237.31 feet; thence
North 86 degrees 26 minutes 19 seconds East a distance of 447.75 feet more or less to a point on
the east line of said North Half of the Northwest Quarter distant 191.94 feet southerly of the
northeast corner thence northerly along said east line a distance of 191.94 feet to the point of
beginning.
I
BL W -254468v8
SH155-149 F-5
EXIllBIT II
LEGAL DESCRIPTION OF THE BENEFITTED PARCEL
PARCEL B:
That part of the Southwest Quarter of Section 2, Township 115, Range 22, Scott County,
Minnesota, lying southerly of the Chicago, St. Paul, Minneapolis and Omaha Railroad right-of-
way and lying westerly ofthe following described line:
Commencing at the southeast corner of said Southwest Quarter; thence South 88 degrees 54
minutes 09 seconds West, assumed bearing, along the south line of said Southwest Quarter a
distance of 875.30 feet to the point of beginning of the line to be described; thence North 27
degrees 50 minutes 53 seconds West a distance of 227.96 feet; thence North 08 degrees 48
minutes 39 seconds East a distance of 410.90 feet more or less to the southerly right-of-way line
of said railroad and there terminating.
Subject to an easement to construct, maintain, repair and operate a railroad spur track, over under
and across the north 60.00 feet of the above described property adjacentto the southerly line of
said railroad right-of-way.
And
PARCEL B-1:
That part of the North Half of the Northwest Quarter of Section 11, Township 115, Range 22,
Scott County, Minnesota, lying westerly and southerly ofthe following described line:
Commencing at the northeast corner of said North Half of the Northwest Quarter; thence South
88 degrees 54 minutes 09 seconds West, assumed bearing, along the north line of said North Half
of the Northwest Quarter a distance of 875.30 feet to the point of beginning of the line to be
described; thence South 27 degrees 50 minutes 53 seconds East a distance of 309.03 feet; thence
South 81 degrees 27 minutes 05 seconds East a distance of 60.00 feet; thence North 70 degrees
30 minutes 38 seconds East a distance of 237.31 feet; thence North 86 degrees 26 minutes 19
seconds East a distance of 447.75 feet more or less to a point on the east line of said North Half
of the Northwest Quarter distant 191.94 feet southerly of the northeast corner and there
terminating.
BLW-254468v8
SH155-149 F-6
~~ STS OONSULTANTS STS Consultants, Ltd. voice 763-315-6300
10900 73rd Avenue North, Suite 150 fax 763-315-1836
Maple Grove, Minnesota 55369 web www.stsconsultanls.com
l
September 15, 2005 /1 Li/-.t .10)'
-~'" fi/' f- j'\<i '
~ !' ''/ U
\ '_/
Ms. Catherine H. O'Dell, P.G.
Minnesota Pollution Control Agency
520 Lafayette Road North
St. Paul, MN 55155
Re: Additional Investigation Scope of Work, Quarry Lake Park, Shakopee, Minnesota;
STS Proposal 13054PP
Dear Ms. O'Dell:
STS Consultants, Ltd. (STS) is pleased to provide a recommended scope of work for additional
investigation at the proposed Quarry Lake Park in Shakopee. The scope of work is based upon a review
of existing work completed for the City of Shako pee, and a site walk completed by STS.
BACKGROUND
Following the discontinuation of mining activities at Aggregate Industries property in Shakopee (see
Figure 1) the pit filled with water and is now known as Quarry Lake. The City of Shakopee is considering
the purchase of the entire property to develop as a multi-use park. As part of the acquisition process, the
City of Shakopee contracted Bonestroo, Rosene, Anderlik & Associates (Bonestroo) to complete a review
of the property. Bonestroo completed the following two documents:
. Phase I Environmental Site Assessment, Quarry Lake Site, November 24, 2004 (Phase I)
. Quarry Lake Park Project Phase II Site Investigation Report, January 20, 2005 (Phase II)
The Phase I identified several Recognized Environmental Conditions (RECs) which were sUbsequently
investigated as part of the Phase II. The results of the environmental testing completed as part of the
Phase II and other details are summarized here.
Northwest Corner - Stellar Construction Area
The northwest corner is used as a storage area for building materials by Stellar Construction. In July
2003, a release of diesel fuel took place here. The release was cleaned up by contractors for Stellar.
Three shallow soil borings were completed in this area as part of the Phase II. DRO was found in borings
GP-1 & GP-2, at 71.1 mg/kg and 141 mglkg, respectively. No VOCs or metals of significant concentration
were found. DRO at 640 Ilg11 was found in groundwater at GP-1.
Northeast Corner - Bituminous Roadwav Asohalt Plant
A batch asphalt plant operated by Bituminous Roadways occupies the land northeast of the property.
During the Phase I, one soil boring (GP-4) was completed here. No soil impacts were found. DRO at a
concentration of 130 Ilg/L was found in groundwater at GP-4. A surface water sample from this location
had a ORO concentration of 150 1l91L.
Southwest Corner
A white surface "scum" seen on the lake surface at this location during the Phase I was not seen during
the Phase II. However, a surface water sample collected from this part of the lake had a DRO
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MPCA . Quarry Lake
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STS Proposal 13054PP
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concentration of 130 I-L9/L. Several small ;storm water holding ponds are west of the ditch that runs along
the west shore of Quarry Lake.
In addition to the RECs and testing, several other areas of potential concern were noted in the Phase II.
Southeast of the site is the Xcel Energy Blue Lake Generating Plant. This peaking plant has two large
aboveground storage tanks immediately adjacent to Quarry Lake, and a history of at least one petroleum
release.
SCOPE OF WORK I
The source of ORa in soil, groundwater and surface water has not been identified through the prior work.
The City of Shakopee and other stakeholders in the planned development of the park need a more
complete understanding of the sources and impacts before moving ahead with the project. STS proposes
the following scope of work to better understand the potential sources and the impacts to the lake and
surrounding property.
Task 1 - Data Gap Analysis & Sampling Plan
The Phase I and Phase II work recommended that additional efforts be made to identify potential sources
of petroleum contamination in Quarry Lake, other than the potential sources already identified. STS will
conduct a site walk of the property and complete a review of additional files from the MPCA, including
files related to the Xeel Energy Blue Lake Generating Plant (Leak #391). STS will attempt to review
records from the quarry operation, to determine geologic and groundwater conditions which may provide
clues to water movement into the lake. The quarry extends into the same limestone formation commonly
used for potable water supply. A review of well completion records and geology of nearby water wells will
be conducted. A review of current lake use will be completed to better understand other potential sources
of impacts, and STS will investigatelreview surface water runoff that may be entering the lake.
A Sampling and Analysis Plan (SAP) will be prepared following the file review. The SAP will outline
additional sampling and analysis recommended by STS. A preliminary scope for the additional
investigation is presented in Task 2.
Task 2 - Additional Phase II Investigation
The existing information points to several areas of, concern that require additional investigation. STS
proposes to complete additional testing in an attempt to determine the location and nature of ongoing
sources of petroleum impacts to the lake, groundwater or surrounding land, if any. The following
investigation plans may be altered based upon the results of the Task 1 activities.
Northwest Comer - Stellar Construction Area
ORa was noted in the groundwater in this location. STS will install two soil borings on the Stellar
Construction property. The borings will be installed by the hollow stem auger method to depths of
approximately 25 feet or to bedrock, whichever is first. Soil samples will be collected, with continuous split
spoon, and screened using a PIO. Two samples from each boring will be tested for ORa. Samples will
be selected from high PIO and at the water table. Temporary wells will be installed in each boring and
groundwater samples collected for ORa analysis.
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Northeast Corner - Bituminous Roadwav Asphalt Plant
Dne groundwater sample from this part of the property had a DRO concentration of 130 j.Lg/L. Additional
testing in this area is prudent based upon the ongoing land use as an active asphalt plant. STS will install
two soil borings on the Bituminous Roadway property. The borings will be installed by the hollow stem
auger method to depths of approximately 25 feet or to bedrock. Soil samples will be collected with
continuous split spoon and screened using a PID. Two samples from each boring will be tested for DRD.
Samples wlU be selected from high PID and at the water table. Temporary wells will be installed in each
boring and groundwater samples collected for DRD analysis.
Southeast Corner
No samples have been collected from the area between the generating plant and the lake. STS proposes
to install two soil borings in this area. The borings will be installed by the hollow stem auger method to
depths of approximately 25 feet or to bedrock. Soil samples will be collected with continuous split spoon.
Two samples from each boring will be tested for DRD. Samples will be selected from high PID and at the
water table. Temporary wells will be installed in each boring and groundwater samples collected for DRD
analysis.
Surface Water
DRD was present in two samples of lake water, collected from near shore in the southwest and northeast
corners. Two additional sets of water samples will be collected. Two samples will be collected from near
shore, along each side of the lake, for a total of eight samples. Six more samples will be collected 1rom
points across the lake, to develop a more representative understanding for water quality. The surface
samples will be collected from a grid pattern of roughly equal spacing in the main body of the lake.
Quarry Lake may be classified as a "Class 2>> surface water body. Standards for safe water quality are
different than those for drinking water, and vary with pH. DRD alone is not a good measure of human
health risk, as it is an index parameter. STS recommends testing lake water for presence of PAHs, in
addition to DRD. in order to evaluate chemical specific risk. Examples of standards for Class 2 water
bodies include:
. Naphthalene 81 j.Lg/L
. Fluoranthrene 1.9 to 6.9 j.Lg/L (depending upon pH of water)
. Phenanthrene 3.6 to 64 j.Lg/L (depending upon pH of water)
. Anthracene 0.035 to 0.63 J.l.glL (depending upon pH of water)
All surface water samples will be tested for DRD and PAHs (Method 8270), and field measured for pH.
Samples will be collected at least one week after any use on the lake.
Six grid samples will also be collected from the middle of the lake immediately following a period of heavy
boat activity.
To understand the regional surface/storm water environment, in terms of DRD concentrations, samples
will be collected from several other surface water bodies in the vicinity, such as the DOT pond to the east,
the small holding ponds adjacent to the southwest corner of the lake, and the storm water ditch and pond
system southwest of the property. The results will provide information on background levels of DRO
expected in the area.
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Groundwater Seeps
Several groundwater seeps were identified along the walls of the lake during the Phase II. STS will
investigate the walls of the lake and where seeps of any significant flow are discovered, samples will be
collected and tested for ORO. Sampling from up to five seeps is included in this scope of work.
Reportina
At the completion of Task 2, a report wifl be prepared documenting the results of all activities completed.
Project Schedule
STS proposes the following schedule to complete the scope of work:
Activity Completion Date
Award of Work Order September 23, 2005
File Review & Site Reconnaissance October 14, 2005
Sampling & Analysis Plan to MPCA October 28, 2005
Sampling & Analysis Plan Approval November ii, 2005 .
Subcontractor Administration November 25, 2005
Field Work & Lab Analysis December 23, 2005
Draft Additional Investigation Report January 13, 2006
Final Additional Investigation Report January 27, 2006
The schedule is dependent on timely completion of the subcontractor approval process.
Cost Proposal
STS has prepared a cost proposal based upon the scope of work. Chemical analysis will be performed
by Pace Analytical. A subcontractor will be selected for drilling. The cost proposal includes labor,
expenses and estimated subcontractor costs. The costs were prepared using the MPCAlSTS Contract
#A48447. and are presented in Table 1. attached.
Costs for labor, subcontractors and expenses are distributed as follows:
Labor .............. .................................. $17,220.33
Subcontractors ............. .............. ...... $ 6,900.00
Expenses .......................................... $ 1.044.25
Total Cost ......................................... $25,164.58
A 10% contingency ($2,516.45) is recommended. This contingency will only be used for additional
services authorized by the MPCA.
Personnel
The follOWing STS personnel may participate in execution of the scope of work for this project.
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STS Proposal 13054PP
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Paul Putzier ......................................... Project Manager
Bob DeGroot ....................................... Project Engineer
Jeff Stevens.... ........ ..... ................. ....... Risk Assessment/Scientist
Steve Carlson ...................................... Scientist
Gayle Blizil........................................... Field Technician
Mathew Beckman................................ Field Technician
T eri Kranz ............ ................................ Drafting Technician
Thank you for the opportunity to provide this scope of work and cost proposal. If you have any questions
in reference to the scope of work, please feel free to contact us. STS will initiate work immediately upon
authorization to proceed. We look forward to assisting you on completing this project.
Should you have any questions in reference to the contents of this document, please contact us at
763-315-6300. We look forward to completing the investigation work on this project.
Sincerely,
PFP/dn
Encs.
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Table 1 . Work Plan Cost Proposal Spreadsheet
Sile Name: Quarry Lake Park
Site Location: Shakopee, MN
STS ProPOSa!613054PP
Last RG\lised: September 14. .2005