HRA 06/07/2007 - 6210i June 7, 2007
HRA Meeting
Regular Meeting Agenda
7:30 p.m. .
City Hall, Council Chambers
Call to order
Roll call.
Action Items
1. Approval of expenditures
2. Approval of April 5, 2007 Meeting Minutes
3. Annual election of Chair and Vice Chair for one -year terms.
4. Participate in MN Solutions — 2008 Legislative Session
5. Authorization to Make Purchase Offer — Sikh Society
Informational Items
1. Gateway NE Update
2. Northstar TIF Legislation Update
3. Monthly Housing Report
Adjournment
W- VPaul's DocumentAHRAMA Agenda Items\2007Vune 7, 2007Uune 7 -2007 Agenda Outline.docH: \Paul's
DocumentAHRMHRA Agenda Items\2007Uune 7, 2007\June 7 -2007 Agenda Outline.doc
a
CITY OF FRIDLEY
HOUSING AND REDEVELOPMENT AUTHORITY COMMISSION
April 5, 2007
CALL TO ORDER:
Acting Chairperson Gabel called the Housing and Redevelopment Authority meeting to order at
7:27 p.m.
ROLL CALL:
Members Present: Pat Gabel
William Holm
John Meyer
Steve Billings
Members Absent: Larry Commers
Others Present: Mike Jeziorski, City Accountant
Paul Bolin, HRA Assistant Executive Director
Jim Casserly, Development Consultant
Richard Pribyl, Finance Director/Treasurer
APPROVAL OF MINUTES:
1. Approval of February 1, 2007, Meeting Minutes
MOTION by Commissioner Billings, seconded by Commissioner Holm, to approve the minutes
as amended.
UPON A VOICE VOTE, ALL VOTING AYE, ACTING CHAIRPERSON GABEL
DECLARED THE MOTION CARRIED UNANIMOUSLY.
ACTION:
2. Approval of Expenses
MOTION by Commissioner Billings, seconded by Commissioner Meyer, to approve the
Expenses.
UPON A VOICE VOTE, ALL VOTING AYE, ACTING CHAIRPERSON GABEL
DECLARED THE MOTION CARRIED UNANIMOUSLY.
3. TIF District #19 - Approval of Development Agreement
Paul Bolin, Assistant HRA Director, stated as they are aware Industrial Equities is building just
under 203;000 feet of new office and warehouse space at 5110 Main Street. This is where
Gaurdian Building Products used to be located. There are high costs anticipated for the building
demolition which started this past Monday. There are some soil corrections with storm water
management needson the site as well. They are seeking $1.5 million in pay -as- you -go
assistance. The HRA approved the creation of the TIF district on February 1, and Council held a
public hearing and granted their approval for the district on February 26. As a collective group
the HRA did look at this development agreement at the February 1 meeting and suggested
changes. Attorney Casserly has made a number of those changes suggested at that meeting.
Really there were just some clarifications that were sought regarding the name for the
developer's portion, whether it should be Industrial Equities or John Allen. Mr. Bolin thought
there were a couple of terms that were used interchangeably. That has all been standardized.
Mr. Bolin stated the size of the proposed building was somewhat in the air at that time. That has
been corrected in the development agreement. Definition of "site plans" was added to the
development agreement, and it was clarified that the maximum amount of assistance is the $1.5
million. Additionally, Mr. Allen had asked that underground storm water management storage
pond be added as an eligible expense. Since Mr. Allen started working at putting this new
development on this site, there have been a number of things regarding storm water that have
changed since the existing buildings were on this site with some sewer lines and other easements
that run through there. The best way to manage the storm water on this site is to actually go
underground with it. That was an expense that Mr. Allen was not anticipating originally. Staff is
recommending the HRA approve the resolution that was included in the packets for last month.
That would authorize execution of the development agreement between the HRA and Industrial
Equities.
Acting Commissioner Gabel asked that the minor changes made be highlighted.
Jim Casserly, HRA attorney, stated the first one is the correct name of the corporate entity, the
owner of the project, and that is Industrial Equities North Yard LLC. They have specific entities
for each project just as most developers. The second one is that when Mr. Allen appeared last
fall he was not sure if he was going to be doing a 242,000 square foot project or a 202,000 one.
It turns out it will be the 202,000 square foot project. Third, the site plans are now a defined
term. This is an issue that Mr. Meyer raised. Normally we have gotten into various kinds of
building plans and construction plans in more detail on housing projects. On our industrial
projects, we normally have approved the site plans and had the staff and City address the various
kinds of issues raised in the site plans. Now we are going to attach a set of the site plans to the
agreement, and they will be incorporated into it.
Mr. Casserly stated they further limited the revenue note which is a maximum of $1.5 million
for the actual cost of the site improvements less the square footage of the redevelopment
property multiplied by $4.00 per square foot. Issues were raised about what if the site
improvement costs were not in excess of the $1.5 million or what if the property was purchased
for less. The HRA will have copies of the purchase agreements and all of the eligible costs.
They will be part of the sworn construction statement that is submitted to staff so they will have
2
all of the information. The HRA will then size the note when we have all the final costs in, and
it cannot exceed in any event the $1.5 million.
Mr. Casserly stated the fifth item was the issue Mr. Bolin just raised about the underground
storage tank for storm water use. There are some unusual issues that go along with this. As he
understands it there are a series of issues dealing with various kinds of easements, the width of
easements, access to various storm sewers or sanitary sewers. Also, the underground storm
storage tank is the method that needs to be employed in order to really utilize this site.
Jeff Salzberg, Industrial Equities, stated the one building will be 74,880 feet at 24 feet clear.
There will be a lot of glass across the front as well as brick at the main entrances, and it will be
fully landscaped across the front. The rear building will be 32 -feet clear and that will be more of
a rail distribution type use building. Both buildings will be fabcon (sp.) panels with aggregate
finish all the way around. Most of their tenants are more high -end users because they do build
nice buildings, and tenants need to pay big rent to get into them. Some of the tenants they have
are in New Brighton and consist of a lot of medical companies. For Corporate Express they were
going to build to suit for them on this site, and they expressed their interest in doing their bulk
warehousing in the back where they have the distribution building. They are currently over in
Arden Hills. Home Depot has expressed interest in the site as a distribution point. Uses like that
are what they would see in the rear building. In the front it could be something like cardio
companies, stent companies, etc.
Commissioner Meyer asked whether the rail spur would be behind the second building?
Mr. Salzberg replied, yes. The rear building will have rail up against the backside and then
truck court and glass on the sides around the corners on the fronts.
Commissioner Meyer asked if they had tenants for these buildings yet?
Mr. Salzberg replied, no, they do not.
Commissioner'Holm asked whether both'of these buildings are single floor?
Mr. Salzberg replied, yes, and are 34 -feet clear in the front building (they do not build
mezzanines in their buildings) and. 32 -feet clear for the rear building.
Commissioner Holm asked whether they have room for semis to load in that center space or is
that for smaller vehicles?
Mr. Salzberg replied for full 50 -foot semis. He believed the distance is close to 250 feet in
between the buildings.
Commissioner Holm asked Mr. Salzberg to explain a little bit more about the underground
storage of storm_ water, how does it work?
3
Mr. Salzberg replied at first they tried to do a pond in the back. There is an easement of a sewer
pipe going underneath and to actually get around that with the other pipes, it turned out to be a
huge cost. Some of the stuff drains out to Main Street and there are some other easements
through there that they could not cross with the storm sewer. As he understands it the system
that is going in is a bigger pipe. Rather than your 2 -foot or 18 -inch pipe, and he thinks it is up to
4 -feet and actually leeches out of the pipe that would go all the way around the perimeter. The
volume is actually capable of staying in the pipes. Once the pipes fill to a certain level, they will
eventually start to drain into the main system.
Commissioner Meyer asked who is their architect?
Mr. Salzberg replied, Jeff Sybrant (sp.) with Architects P.A.
Commissioner Meyer asked who is the civil engineer?
Mr. Salzberg replied, John Ringo.
Commissioner Meyer asked of what firm?
Mr. Bolin replied, Plough Engineering.
Commissioner Meyer asked who is the constructurion engineer?
Mr. Salzberg replied, Louie Holt with Buildings Consulting Group.
Commissioner Meyer replied, this is a fairly straightforward agreement and similar to other
kinds of agreements the City has been entered into. It has just been several years since they have
actually done a project like this.
Acting Chairperson Gabel asked since this is a pay -as- you -go, they do not have to worry about
real estate taxes?
Attorney Casserly replied, no, it really is self - policing. There is only a percentage of the taxes
that actually end up being tax increment. As a matter of fact it is interesting, and it probably got
handed out last month, they did a pie chart which they do periodically because they lose track of
just how much the State takes out of our property taxes and how much goes to the underlying
jurisdictions before you actually calculate what would be tax increment. There is a very
common misperception that 80 -90 percent of what people pay is going into a tax increment and
is being rebated and that is not true. In this instance it will probably not exceed 40 percent and
will probably actually be under that.
Acting Chairperson Gabel replied they did see that and believed it was about 38.8 percent.
MOTION by Commissioner Holm Approving the Development Agreement for TIF District #19.
Seconded by Commissioner Meyer.
4
UPON A VOICE VOTE, ALL VOTING AYE, ACTING CHAIRPERSON GABEL
DECLARED THE MOTION CARRIED UNANIMOUSLY.
INFORMATIONAL ITEMS:
4. Decertification of TIF District #14 — North Park Business Center
Mike Jeziorski, City Accountant, stated they did have TIF District #14 actually decertify in
2006. They were notified on January 21 to return all unused increment back to the County. That
amount is $660,321.76. Of that, 35 percent will be redistributed back to the City of Fridley with
the July 1 settlement.
5. Gateway NE Update
Mr. Bolin stated he did provide each of them with a handout that shows the cover of this
month's Planning magazine that actually shows members of the Corridor Housing Initiative who
the HRA will be using over the next few months to complete a similar planning process for the
Gateway NE area. The City did receive a formal notification letter from the Center for
Neighborhoods just prior to the HRA's last meeting stating that their Board had met, and they
selected Fridley to be the first suburb they would like to come work with. The City will be
getting their services for free. There is a meeting set up with them for this Tuesday where the
City will meet with their staff people and try to develop the framework for the process, hope to
get some timeframes, and work with them to try and identify some of the stakeholders and others
who should be involved in this planning process. They anticipate starting this planning process
some time in June.
Mr. Bolin stated the area they are talking about would extend from our Gateway East
Condominium Project up to 61" Avenue. Since they met last they have closed on both the old
Van- O -Lite building and the newer Van- O -Lite building. The City has made an offer to the
Oriental House. They seemed quite interested a month or so ago and then they called him
yesterday asking if the City could send another copy of the purchase agreement. Sometime in
between there the Sikh Society had also made an offer to the Oriental House on their property.
However, now the Sikh Society has expressed to the City they would be interested in selling
their property to the City as they have purchased property behind the new Target. They have a
ways to go before closing on that property and, if that comes to fruition, staff may be asking the
HRA in a couple of months to make an offer to the Sikh Society as well.
Mr. Bolin stated the Alano Society came in and met with him back in December and stated they
would be interested in working with the City and planning for the area, but they would like to
stay where they are at. He did hear from the Promotional Products Company that sits just south
of the Alano Society. He spoke with them yesterday, and they would like to participate in the
planning process. However, at this time they would like to stay where they are at as well as the
veterinary hospital. Back in February the City did have discussion regarding the purchase of the
Citgo site which is on the north side of 61St. They will recall the appraisal at that time came in
quite a bit higher than they had anticipated, there was possible contamination, and staff would
come back to the HRA in March after they had reviewed the records through the Fire
5
Department and the MPCA. What staff's research showed is that over the years there have been
a number of leaks which were documented in a memo the HRA received last month. However,
all the leaks had been cleared by the MPCA. He did not think that means all the contamination
had gone away, it just has gotten to a level the MPCA does not deem a problem anymore.
Mr. Bolin stated they did a little bit of exploration as to what types of financial assistance might
be out there to clean up some of the petroleum problems that may exist, and both the Pollution
Control Agency and the Department of Commerce have a couple of different programs that may
be applicable in this case. If the HRA was seriously considering making a purchase offer on this
site, staff would recommend they have a more formal environmental review done before that,
including possibly soil borings so they know exactly what the extent of the contamination is on
this site. In one of the cases they had reviewed, it appeared that some of the contamination had
even traveled across 61'` on the Sinclair site. At this point he thinks they could include the area
in their planning process, but not necessarily go ahead and purchase that site at this time.
Commissioner Holm recalled the assessed value of that property was quite high and the HRA as
a group was a little bit hesitant to make an offer. Obviously it is separate from the other block
and there was question as to how they would use that. However, yes, if they can include it into
the area that would be fine just for discussion purposes.
Acting Chairperson Gabel mentioned she saw something regarding the Corridor group doing
something on the Fridley channel?
Mr. Bolin replied, yes, they have put together a DVD about how their process works and they
gave the City a copy of that about three weeks ago. Brian Strand has gotten it into a regular
rotation on the cable channel. Over the next few months as the City starts talking `about that
process more, people will have more of an idea of exactly what it entails. The City does also
have extra copies of the DVD if people would like to watch it at home.
6. Northstar TIT Legislation Update
Mr. Bolin stated the Fridley station site was left out of the first round of construction for the
Northstar corridor. The Rail Authority came up with about a $10 million shortfall. There were a
number of things that made the Fridley site more expensive than the rest. Namely, we need a
tunnel underneath the rails because of the five rail lines that run through this portion of Fridley.
The City's station platform itself is going to be located in the center of the rails. They need a
tunnel and essentially three elevators to bring folks down into the tunnel underneath the tracks
and then up to the platform in the center of the rails. Because of the land on the east side of the
tracks, between Main Street and the tracks, there is a high cost for the acquisition. Also since
Fridley is the last station before Minneapolis, it seemed to have the least cost benefit to it when
the federal government did their analysis on it. Fridley was left out of thai first round. However,
Burlington Northern would still like somebody to come up with the money to at least put the
tunnel in underneath their tracks as part of the first round of construction so they can control
when they are going to be held up by the construction. They would like to get it all out of the
way at one time.
0
Mr. Bolin thinks Fridley will just keep always falling short on that cost benefit because it is not
going to get any cheaper to put the tunnel in or acquire the land. That led to a brainstorming
session with the City Manager and a number of staff people and legal counsel and they have
been investigating a number of alternative alternative funding sources to get the tunnel in ' and possibly
acquire the land on the east side. Jon Haukaas, the public works director, has been working on a
couple of grant applications for the tunnel itself. One is through -the Federal Transportation
Enhancement funds and another opportunity is through a group called the Transit for Livable
Communities who have a few million dollars they are looking to spend around the Twin Cities
metro area to enhance transit connection. However, none of that gets the City close enough to
getting rid of that $10 million gap. Even if we do not move forward with the actual station
construction this time, the tunnel itself is a good stand -alone project. It gives us an east -west
connection that we currently do not have. Those grant applications are going in and could work
even if everything else were to fall apart, and we cannot get additional funding.
Mr. Bolin stated the proposed legislation that was put together would create a special TIF
district for Fridley called a Transit TIF District, and it would be used to help fund the
construction of the tunnel, the acquisition of some of the property, the station construction itself,
and possibly doing some redevelopment projects around the area. The map that they have before
them shows all of the properties that were proposed to go into that Transit TIF District. The
legislation that had been drafted and introduced also gives the City the ability to spend funds that
are currently being generated in our TIF Districts Nos. 11, 12, and 13. It would allow us to take
those excess funds in those districts. Those are all districts that have completed projects and now
have these balances sitting there that we cannot spend anywhere else.
Mr. Bolin stated this legislation would give us the ability to take those funds and spend them
within this new Transit TIF District. If we look at the three funds, the TIF Districts Nos. 11, 12,
and 13, and calculate what they could generate over their life span, two of those districts expire
in 2018 and District 13 expires in 2025. By being able to tap into those funds would generate 2.4
million over the life of those districts that we could use within this project area. In their packet
he did give them more of a written update on what has happened with the actual legislation. On
the Senate side a lot of the language was actually taken out of our Bill, and he thinks all they are
really left with on the Senate side is the ability to use those funds from those two TIF districts
within our proposed transit area. Also they can only spend those funds for the tunnel itself and
not for anything related to the station construction. He does not believe at this time they are even
able to use that for acquisition.
Attorney Casserly stated it is really for the construction of the tunnel under the Burlington
Northern Santa Fe railroad tracks to allow access to a Northstar commuter rail station.
Mr. Bolin stated right now the way it is sitting on the Senate side, a lot of things have been
stripped out, and it is very restrictive. We have had staff, and one night they even had
Commissioner Billings, go down to St. Paul with them for an evening hearing. The Mayor has
been spending a great deal of time down there working on this issue as well. On the House side
so far the. Bill has been left as it was presented.
VA
Attorney Casserly stated as they all know things like this get very complicated because they end
up in the tax bill, and he assumes the first tax bill is going to be vetoed by the Governor and so
they will come back and do a second tax bill. They have a little subgroup that actually handles
local economic development issues of which this is a part of. There will probably be three
senators and three house members who will actually be overseeing the portions of the tax bill
that deal with these issues. On the House side their problem is the chairman of the tax
committee has a project in her district that is so much greater than the combined cost of all the
rest of the projects. It is the Mall of America looking for $125 million: The rest of these projects
pale in comparison. She is very concerned about setting various kinds of precedents on smaller
projects that she would then not have any ability to say, as a practical matter, no to for larger
ones. She is very diligent and is trying to figure out some uniform principles that she can apply
in reviewing these projects. The committee heard it in the House, they were very receptive and
very gracious. They essentially indicated they would work with us and try to figure something
out, but they did not know quite what that was.
Attorney Casserly stated the real issue here is not just trying to assist with transit. People have
become very sensitive to the role of urban renewal and redevelopment and inner suburban and
central. city areas. They really are becoming conscious of it. When we describe to them the real
goal of this, to take advantage and provide some very good redevelopment that would be
promoted by the transit stations and put ourselves in a position whereby we can take advantage
of it, we have had a very receptive hearing. The reason Senator Chaudhary is genuinely
concerned about the direction things have gone is that he really believes it is the State or it is the
Authority or some entity that should really be paying for the cost of these stations. It is hard to
argue with that in principle. We have other concerns and in order to use this site to the
maximum, we have some structured parking issues, land clearance, we have to.have access, and
that is why we get into this whole discussion of the tunnel. Even if we get legislative approval,
this is something the City will be dealing with really over a long period of time. Also, we have
to fix up the legislation. a little bit. You do not want to create one tax increment district. You
only want to create districts and really see some potential development that would help
contribute to the overall goals and plans and help create the density. So we have a good start in
both bodies and there is just more work that needs. to be done. They are not partisan discussions;
these are just some very honest differences of opinion about who should do what, etc.
Acting Chairperson Gabel asked Mr. Bolin if he knew when they will know about those .
grants?
Mr. Bolin replied he knew the deadline was coming up towards the end of April. He would
think the Transit for Liberal Communities one was in early or mid - summer timeframe they
would hear back on. He thinks the federal one is not until November.
Commissioner Meyer stated he is really concerned about their interest in putting a tunnel
through regardless of whether or not the station is there. A tunnel should be located exactly
where we want it to be with respect to a station. Without the station to be the hub and the reason
for the tunnel, it seems to him the tunnel could be put in a more awkward position or location
than they may want. The other thing is the maintenance of-the tunnel, that is not going to be
cheap year after year without certainly a station there to help pay for it in some fashion. There is
going to be a lot of maintenance, guards, electrical, heavy and very expensive equipment such as
the elevators to maintain, etc. So it is going to be a constant financial drain. He wonders why
we feel we have to have the tunnel there at this time except maybe being an inducement to give
us the station.
Mr. Bolin stated the tunnel itself could be as simple as a big box culvert that goes in this summer
or next summer and the ends are sealed off, and it stays like that until the station is built here. If
some of these grant applications are. successful, the tunnel actually is in a logical place to tie in a
number of our bike trails. We have the regional trail that follows along the west side of the rail
right there at 61 ". It would also tie in Stevenson Elementary School with 61'` and allow people
to go from that area all the way over to the community center. Engineers have looked at this, as
part of our comprehensive planning process, the City has had a couple of neighborhood meetings
over the last month, and there seems to be support for putting some sort of pedestrian access in at
that part.
Commissioner Meyer replied you cannot use the argument for pedestrian access and tunnel and
trails, etc. if you are also talking about a box culvert that is going to be blocked off. The two are
not compatible schemes. For a box culvert, if it is so simple to put in, it could be in any time
later. He really feels they are being very previous in pushing a tunnel idea through. It can be a
very expensive thing and also a tunnel has to be guarded for anyone using that tunnel. There has
to be lighting, guards, and maximum concern for public safety because a tunnel is not a very safe
conduit.
7. Monthly Housing Report
Mr. Bolin stated the HRA loan program seems to be following the trends we keep hearing about
that housing is down, etc. Again we see that this month. There was only one loan issued by
CEE in Fridley. It was out of the MHFA funds that they had used. That made it only the second
loan for this year that has been issued. Remodeling Advisor visits were up. We did have four of
those in March, giving us eight total for year -to -date. No calls for Operation Insulation over this
past month.
Mr. Bolin stated right now we have a total of 83 loans out there that are still active; 71 of those
revolving, 12 of them are part of the Deferred Last Chance Loan Program, making a total of
about $1.1 million the HRA has out right now. This month the HRA received about $36,000 in
payments and $4,000 of that was interest and the rest was principal. Regarding delinquents on
our $1.1 million, the HRA has about $6,000 total that is past due right now.
Mr. Bolin stated Dr. Bums had asked him to mention he would like to push the regular HRA
meeting in May back to Thursday, May 17, and then he would like to have them in a joint
session in the City Council just before that. At 6 o'clock he would provide a dinner and ask that
they meet with the Council. The purpose of that is to go over the Council/Commission surveys
they may have already received in the mail. He would like to have those back by April 16 if
possible, and then he will try to get everything compiled by May 17.
G9
Mr. Bolin stated the Home and Garden Show was held on February 24. The snow did keep
quite a few people away, but about 750 people did attend. The City tried a few different things
this year, more seminars and different topics which all seemed to be very popular. The City had
them move the City booths back. Last year some vendors complained about being stuck in one
of the back rooms of the Schwan's Center. This year they put the City booths back there along
with a number of architects who had volunteered their time and also some interior designers. So
they really had a resource room where residents could come in and get information on the City's
loan programs and then go chat with some of the other architects who would sketch out some
ideas for them so it worked out well. Plans are already started for next year's show which will
be on February 23 again at the Schwan's Center.
Acting Chairperson Gabel stated she did see that they finally got the platting for Gateway.
Mr. Bolin replied, yes. That happened about two weeks ago. Even when it was filed there were
still some things the County was pointing out, stating they are going to still be coming back to
the City, there are a couple of little slivers within there that the City has ownership on and so
attorney Knaak will have some quit claim deeds made up and it should be smooth sailing. It
does not affect the plat that is recorded. It may slow things up a little bit when Blueprint actually
goes to take some of those properties. He did speak with Jeff Magdic of Blueprint earlier today,
and he is getting ready to take the next three lots. He is actually meeting with four different
groups tomorrow that are interested in a couple of the sites down there. He is also thinking of
putting a model home up on that southern block.
Commissioner Billings stated the County has appointed an Economic Development Authority
Exploratory Committee to review the housing redevelopment activity and the economic
development activity within the County and to determine if there are any needs that are out there
not being met. The mission of the study group is to report to the County Board and make their
recommendation to either create an economic development authority to give the current Housing
and Redevelopment Authority economic development authority powers, seek special legislation
if there is no model that really fits our needs, or to recommend doing nothing. The group has
met he believes three times now and their next meeting is April 24 when they will be formulating
a recommendation to the County Board and forwarding that to them in May.
ADJOURNMENT:
MOTION by Commissioner Meyer to adjourn. Seconded by Commissioner Holm.
UPON A VOICE VOTE, ALL VOTING AYE, ACTING CHAIRPERSON GABEL
DECLARED THE MEETING ADJOURNED AT 8:28 P.M.
Respectfully submitted,
Denise M. Johnson
Recording Secretary
10
Q
CITY OF FRIDLEY
HOUSING AND REDEVELOPMENT AUTHORITY COMMISSION
February 1, 2007
CALL TO ORDER:
Chairperson Commers called the Housing and Redevelopment Authority meeting to order
at 7:27 p.m.
ROLL CALL:
Members Present: Larry Commers
Pat Gabel
William Holm
John Meyer
Steve Billings
Others Present: Mike Jeziorski, City Accountant
Paul Bolin, HRA Assistant Executive Director
Jim Casserly, Development Consultant
Richard Pribyl, Finance Director /Treasurer
William Burns, HRA Director
APPROVAL OF MINUTES:
1. Approval of December 7, 2006, Meeting Minutes
MOTION by Commissioner Holm, seconded by Commissioner Gabel, to approve the
minutes as amended.
UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON COMMERS
DECLARED THE MOTION CARRIED UNANIMOUSLY.
ACTION:
2. Approval of Expenses
Commissioner Gabel asked regarding removal of an uprooted spruce tree, where is that?
Mr. Bolin replied that was right next to our new fence.
MOTION by Commissioner Meyer, seconded by Commissioner Billings, to approve the
HRA checking for the period December 8, 2006, to February 1, 2007.
1
UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON COMMERS
DECLARED THE MOTION CARRIED UNANIMOUSLY.
3. Approval of Resolution to Create TIF District #19
Paul Bolin, Assistant IIRA Director, stated John Allen of Industrial Equities plans to
redevelop the site at 5110 Main Street. This is the former location of Guardian Building
Products. They will recall a discussion they had on this item back in November where
the HRA gave preliminary authorization for staff to move forward with the creation of
TIF District #19. At the time Mr. Allen was actually proposing two options for this site:
one being two buildings, totaling 202,000 square feet; and the other proposal was one
larger building which Mr. Bolin believed was around 240,000 square feet. Either
scenario is to be used for new office warehouse. The larger building was for a specific
tenant that Mr. Allen had been courting, and that tenant is no longer a possibility. At this
time Mr. Allen is moving forward with his two - building design and does anticipate,high
costs, both for the demolition of the existing building and for soil corrections. City staff
does know that after the 1965 tornado there was a trench dug on this site, and all the
debris from the building that had been in place at the time was pushed into that hole.
Staff does anticipate some soil corrections with that. Mr. Allen has asked for $1.5
million and pay -as- you -go financing. What that assistance it does make the site
competitive with clean sites in outlying suburbs. Redevelopment is very expensive here
in Fridley, but for the assistance from the HRA, the redevelopment is not feasible for
Industrial Equities. Industrial Equities will clean the site, demolish the buildings,
construct a new building which they plan to own and manage for the long term as they
have with their other properties here in Fridley. What this does for the City is eliminated
outdoor storage problems that we had with the previous user of this site, it will correct the
soil problems, provide new investment down in this neighborhood, and create new jobs in
the City of Fridley.
Mr. Bolin stated, therefore, staff does recommend approval of the resolution creating TIF
District #19. The City Council will also hold a public hearing on this item and take
action at their meeting on February 26. Also in their packet they did have a copy of the
development agreement that would go along with the creation of this TIF District. It
spells out the Authority's obligations to Mr. Allen, and Mr. Allen's obligations to the
City and to the HRA as part of this agreement. Attorney Casserly did draft that
agreement who is also an expert on the intricacies on how this TIF financing will work.
Mr. Bolin thought they were going to have a representative from Industrial Equities with
them tonight to answer any questions specific to the new development. In lieu of that he
can try and answer some of the questions for them. Further, if they have had a chance to
read through that development agreement and, if there are no substantial changes, staff
would also recommend the Authority approve that tonight. If Mr. Allen gets back to the
City with a number of substantial changes, staff would bring it back to the Authority
again in March. Chairperson Commers would not move forward with signing the
agreement until some time after the City Council officially approves the district on
February 26.
2
Chairperson Commers asked if he is correct that this agreement is similar to what they
had before?
Jim Casserly, HRA Attorney, replied this is similar to agreements the City and HRA
have done. What he did is actually took the agreement the Authority had with Allen from
1996, a district that just ended. In that particular project they provided a grant, and it was
a little bit different structure in that project. It was essentially a grant and a loan, and the
City provided the cash up front. In this new agreement the City is not providing any cash
up front. This is a pure pay -as- you -go type project and, if the tax increment comes in and
the taxes are paid timely, then the revenue note would be paid. The new taxes are
pledged to the payment of the revenue note. So the City is not putting any funds up front
on this. The City would make a payment over time, representing reimbursement for
eligible expenses. What Mr. Allen does, and has done in the past, is take the note and
essentially assign it to a lender. That is what normally generates additional revenues for
the project. So it is a very common device. The Authority has in fact done it on other
projects, such as with McGlynn Bakery they did a similar kind of arrangement. Attorney
Cassserly thinks there are still several notes that are outstanding the City makes
payments. This is one where it would be a maximum of 16 years that the City would
make payments on. At the end of that period of time, the note would be deemed paid in
full. He can go through the provisions of the agreement. It probably does not help to see
the differences that are with the previous agreement because this one really is
substantially different. The only reason he did that one is, when they went to blackline it,
there were whole huge pages that were changed.
Chairperson Commers asked if anyone wanted to go through it? They have done these
before and it is no different. The HRA has constantly wanted in a way to have some
control over. the quality and design of the construction. The minimum improvements
here are as defined in the construction plans which of course they have never seen. They
have had different issues regarding the how the outside of the buildings look,
landscaping, etc. He asked how would staff propose to have that issue resolved?
Mr. Bolin replied at this time Mr. Allen is still far from getting building permits, he has
not submitted any building plans yet, and is still working on his platting. He has to
purchase a small parcel from the Rail, and he has not completed the platting process for
that yet. Mr. Bolin does know that Scott Hickok has had a number of conversations with
Mr. Allen about expectations for the exterior of the building. City Code does require
some masonry products on the front and no overhead doors facing street right -of -ways.
They have had a number of conversations about.the landscape plan for the new building
as well. Nothing as far as comments from this group have been incorporated. Mr. Allen
does plan on demolition this spring.
Dr. Burns asked Mr. Bolin whether he knew approximately when the new building will
be erected?
Mr. Bolin replied he estimated shortly after the demolition, however, he has not seen any
building plans yet.
3
Chairperson Commers asked if they are getting too far ahead on this? They do want to
look at those plans. He asked Commissioner Meyer if he had any comments?
Commissioner Meyer asked if they approve this agreement tonight, is that inferring they
already approved the construction plans?
Attorney Casserly replied there are different ways of doing this and, when the Authority
is different from the Council, they may want to provide a more complete description of
the kind of materials they want, appearances they are expecting, and if there are some
certain kinds of upgrades they are anticipating. The City clearly has control over the
permitting process. Most of the time when the City and the Authority are the same body,
generally there is a pretty clear line of how that is going to be done. When the bodies are
different and, if they are looking for something more than the City would be requiring
from the project, then they should specify what additional kinds of improvements,
qualities, upgrades, materials, etc. they are expecting. Clearly it has to do all of those
things and the City has to inspect it. They have to issue the Certificate of Occupancy.
Meeting the requirements of this agreement is triggered off of the Certificate of
Occupancy the City issues. So if they want to have something more than what the City
Code requires, then they really need to identify that. There is nothing wrong with that, it
is just they need to identify that.
Chairperson Commers stated he did not know that is what the Authority desires. He
thinks though what should come first are the plans so they can look at them and then
determine if in fact, understanding the minimum Code requirements, if there is anything
else that this group would then feel is appropriate. There may well not be anything else,
but he thinks Mr. Allen should submit those plans. To him it seems next to impossible
for them to start dictating what types of things the redeveloper should have in the plans.
Attorney Casserly replied oftentimes you do not have your construction plans. Those
end up being pretty detailed kinds of drawings. Most of the time those would not be done
prior to the time they would approve agreements or create districts. The timing just does
not work out right for that. What they could do (and particularly since Mr. Allen has
done so many buildings), they could ask him what his intentions are for the facing and
the appearance of this building, and they could very quickly determine if that is the
quality and type of building they are expecting out of this project. They can actually put
in the agreement that he is to meet the quality of whatever. He has done other projects in
the City.
Chairperson Commers stated his work has been good so it is not necessarily they expect
any type of issue. They just want to try and do this in an orderly manner.
Attorney Casserly replied he did not think there is anything unreasonable about that. He
thinks what they normally do is identify either style, type, criteria, other types of
buildings, and suggest or state that it needs to meet the criteria that are contained. They
could also work in the agreement the Authority would approve the building plans. They
0
need to have some kind of structure for this though. If they want to put a provision in
there that the building plans have to be approved by the Authority, they can certainly
work something like that in or however they want to approach it.
Commissioner Gabel suggested they state that this agreement is subject to their approval
of the building plans?
Attorney Casserly replied, no, they would just put in there that the City would have to
approve buildings plans or site plans. What they really want to know is more of an
appearance and quality. Clearly it is all going to meet Code, so what he thinks they are
concerned about is how does it look within the total framework and as part of the
community. If they want to have some additional review of that, there is nothing
inappropriate about that. Sometimes what they have done is they have specified various
appearances that they want, a certain look, sometimes there are site plans that become
attached to the agreement that give you a sense of the appearance of it.
Commissioner Billings asked attorney Casserly, regarding the two items on the agenda,
one is approval of the resolution to create the TIF district and the other is the approval of
the resolution to adopt the development agreement. Regarding the TIF District, he
assumes they want to pass that resolution tonight. Is there is any need to do the
development agreement simultaneously? Can that be approved at any future time?
Attorney Casserly replied, yes.
Commissioner Billings asked Mr. Bolin whether he invited the redeveloper to attend
tonight's meeting?
Mr. Bolin replied, yes; he had spoken with Mr. Allen on Monday morning. He had a
prior engagement in Florida this evening but he was going to have Jeff Sahlzborn (sp.),
his local representative, here tonight.
Commissioner Billings stated he thought it would make sense to, assuming they are in
agreement on creating the TIF District, go ahead and create that tonight. He suggested
they table the resolution and then attorney Casserly can come up with some additional
language.
Attorney Casserly stated the creation of the District is really a straightforward matter.
Oftentimes you have districts and you do not have agreements for many months. So
there is absolutely no reason they could not do it. Also, he believed the Authority will
meet again before the City Council adopts the agreement. The HRA is going to meet on
it twice so it would be good to adopt the resolution on the District tonight. In the
meantime perhaps Industrial Equities will have pulled things together or have site plans
that are perhaps more specific that will start showing some exterior finishing.
Chairperson Commers stated he thinks those suggestions seem to make sense. They
have a project that is going to go forward so it is not as if adopting the District at this time
is going to start the time running or something needs to be done. As far as the
5
development agreement itself, perhaps John Allen or someone wants to be at the next
meeting and go over it a little bit. He would like to get something in hand so
Commissioner Meyer can at least look over it ahead of time which has kind of been their
practice.
Dr. Burns stated he was wondering whether it would be satisfactory to have building
elevations and a site plan or does the Authority want something more than that at this
point?
Commissioner Meyer stated they have done this many times before. They have had site
plans, elevations, materials, specifications, etc. It certainly is not unusual for them to
request this and to review them. In the definitions of the agreement, there are carefully
defined construction plans — meets plans, specifications, drawings, etc. on page 3. He
cannot find the linkage of the phraseology, construction plans, to the rest of it.
Chairperson Commers pointed out there is a provision in there on minimum
improvements which is construction of minimum improvements as Article IV, page 10;
and it describes the minimum improvements to the redevelopment property to be in
accordance with the construction plans.
Commissioner Meyer stated if this is the rather specific verbiage of the agreement, they
should either drop the verbiage in the agreement or do something about it. It seems to
him it would be good just to leave this in and they can be somewhat informal about it.
However, somehow hold the redeveloper to the requirement he bring in some sort of
plans and specifications and so on even though they are not going to necessarily insist it
be as detailed as the plans, specifications, and drawings that are submitted to the building
inspector because that is a step beyond. He does not think they have in the past required
that except on a couple of houses. He thinks if they leave that in there, they can use their
discretion as to how tough they want to be.
Chairperson Commers commented make it simple, stating the construction plans are
subject to the Authority's review and approval.
Commissioner Meyers commented they ultimately should, if they mean something,
define what control they have. Do they all want a brick fagade? They perhaps do not
have that power, but they should say these types of things. Failing that, if they just leave
it that the redeveloper should submit these plans, is not saying what the Authority or he
has to do with them.
Attorney Casserly replied what he thought would be prudent to do is spend a little time
with John Allen's building group, his architect, and see what they have put together. He
does not know if the Authority really wants to approve the plans. What they probably
want to do is to review the quality of the materials, the exterior perspectives; they want to
have an understanding of what is going on with the site. The City is really responsible
for making sure it is put up correctly and meets all the various requirements. The
Authority clearly has the authority to provide an assistance when certain criteria are met,
0
and they just need to lay that out. However, in the past, he does not know if the
Authority really approved the building plans.
Chairperson Commers stated they certainly have looked at the designs and type of
materials that are being used. They have had a couple of projects where they have told
people they wanted some additional aesthetic types of things done to the property. It has
never been, he thinks, to any major degree. They have tried to exercise a little bit of
control, and the inability to do so on occasion has created things that are not maybe the
best.
Attorney Casserly stated he thinks the message is clear, and he thinks that will be
conveyed back.
Commissioner Holm asked whether the TIF district will last 26 years?
Attorney Casserly replied they put in that the maximum duration of the district is as
allowed by law, and that is 26 years. The agreement being suggested does not use 26
years, it is 16 years. So it is a shorter duration than what they are putting in for the
statutory permissible language.
Commissioner Holm asked attorney Casserly to help him understand how repayment
works in terms of the $1.5 million. Does it go over $1.5 million in some cases? Is it
related at all to the extra costs involved with the site improvements and so on?
Attorney Casserly replied all of those things. He referred to the Authority's packet, to a
two -page tax increment analysis. The front page has all of the assumptions. If they look
on the front page, it shows the current market value of the property. They can see the
breakdown between the land and the building. Currently the land is valued by the
assessor at $1,243,000; and the building has a value of $1,215,000 for total market value
of $2,548,000. That is a pay 2006 market value. What the rest of the page is showing is
how this project is ultimately valued and taxed. They just assumed that the project was
going to be built out in the year 2007. Then it would be valued in 2008 for taxes payable
in 2009. They can see under this analysis, if it is valued at $50 a square foot, and there is
202,000 square feet, you have a market value then of $10,144,000.
Attorney Casserly stated the estimated tax capacity on that is calculated at $202,000;
and that is just really a function of using the commercial retail class rate and multiplying
that by its market value. The estimated taxes on the building would be $306,416. The
estimated tax increment is $139,000. He thinks that is significant because so often people
think that everything that is paid in taxes is the tax increment. Where in fact what they
are showing there, the estimated taxes of $306,000, $139,000 are tax increments which is
about 45.5 percent of the total taxes. There is a reason for that. At the bottom of the
page there is a local tax rate and a state tax rate. The state tax rate is a very substantial
portion of the combined tax rate which is 1.51033. The local tax rate (which is the
city /county /school districts special taxing districts) amounts to .91 of the state tax rate is
.50. So when you combine that, the 1.5 times the taxed capacity, that is what gives you
7
the estimated taxes of the in excess of $300,000 but the tax increment is only based on
the local tax rate and then only after they subtract out the original market value. So they
have to subtract out the $2.5 million from the $10 million. They are really calculating the
tax increment on essentially $7.5 million. Th�ar in excess of $ 001000 but the tax
which to calculate that. So that is why the taxes
increment is about $140,000. Going to the next page (again assuming it was built in 2007
and valued in 2008, taxes payable in 2009) they can see that if they look on Column E, at
the top, they see Estimated Tax Increment. This is the captured tax capacity times the
local tax rate of .91 and then they subtract from that a very small amount for State
Auditor's fee. All of the columns in E, F, G, H, I, and J are all stated semi - annually so
they will see, again, the semi - annual tax increment is $69,736. Again, if you multiply
that it is roughly the $140,000 annually. They take out the administrative fees (the
Authority retains 10 percent to help with this administration) so that gives them the
available tax increment and what they have done is provide a small inflation factor. That
is why when they look on Column G they will see it actually rises. They wait several
years before that increases.
Attorney Casserly stated they do not allow the inflation factor to kick in for some years
but they assume there is going to be some inflation; and they use a 2.5 percent inflation
factor. This shows what the increment would be generated over a period of years
throughout the life of the district. The accumulative available increment is just the sum
of each semi - annual payment in Column G. The bottom of Column G and the bottom of
Column H are the same. Columns I and J show what happens when you take the present
value of the tax increment. When you say that you are going to provide $1.5 million of
assistance, if that is the number, if this is all the value that is there, you would look at this
column on the far right hand side and they would see they would be down to the year
2031 before $1.5 million could actually be paid (Line 24). But to pay the $1.5 million
actually takes $3,795,000 because the difference is interest. One of the things they will
find in the redevelopment contract is they do not allow the increment to be pledged for as
long as it would show under this scenario. They used a more aggressive scenario in
which they assumed there was going to be a bigger building built — 242,000 square feet.
When you follow all the same format, and you use that line -up, you find that can be paid
off in a period of 16 years. That is what they have provided in the agreement. So the
redeveloper can only recover in this scenario the $1.5 million.
Attorney Casserly stated if in fact the redeveloper builds a larger building, a building of
higher market value, there is higher inflation but the likelihood of the developer
recovering $1.5 million with this size building is not good. And with some of the
correspondence that went back and forth, the developer and their folks clearly recognize
that and wanted the HRA to extend it out further and, when they had the meeting in
November and went through this kind of analysis, the clear direction he got from the
Authority at that time is assume there is a larger building and this is what they are
comfortable doing and no more. That is how they designed the agreement. So if at the
end of the day, if they approve the agreement, they like the product and the building, they
want to participate, and the redeveloper completes the building, then they will give the
redeveloper a revenue note if that is the amount that is still acceptable for $1.5 million.
N.
Then every semi - annually the redeveloper will make a payment. The money actually
comes from the county and goes into an account. They retain 10 percent and then on
February 1 and August 1 of each year they actually make a payment on the Note. At the
end of 16 years, if the Note is not paid in full, the contract says it is deemed paid in full
and that is the end of it.
Chairperson Commers asked the 200,000 square feet is not phased, correct?
Attorney Casserly replied they did not put that in as phased. That is a practical matter.
It is probably going to take a year to build out. So as a real practical matter the full
evaluation of this thing is probably not going to come on for another year.
Chairperson Commers stated they talked in the past about minimum assessment
agreement.
Attorney Casserly replied the reason they have used minimum assessment agreements,
at least pretty clearly, is that they have issued debt of some kind. In the Industrial
Equities project that they participated in before, the HRA actually provided the money up
front. The HRA wanted to make sure that the valuation was there so they could recover
it. In other instances, the HRA has gone out and actually sold bonds. They wanted to
know there is a value there. In this instance the HRA is not doing that. The only reason
for maintaining a valuation agreement is to in some fashion assist the assessor. However,
in all of these agreements which are a pay -as- you -go, the developers normally want the
valuation set so low that they never come down below that amount. The reason is
developers are always afraid in a recession (and this actually happened in Columbia
Heights), if the valuation drops below the assessment agreement, they then cannot rent
their property at a competitive rate and it will actually make matters worse for them. So
they are just absolutely petrified of having valuation agreements that may set a rate too
high because if in fact, for the reasons he described, they would be in an uncompetitive
position and so what they will do is set a valuation.
Commissioner Holm stated, okay, they are providing this assistance and in order to
provide a site that, without this assistance, no development would take place because of
the soil contamination, the fact the building has to be taken out, and so on. So they are
providing $1.5 million of pay -as- you -go assistance. If the costs of demolition and soil
correction, etc. are less than $1.5 million, then the developer benefits from it. If it costs
more than that, they get hurt by it. He assumes this $1.5 million is a reasonable estimate
of what those costs will be.
Attorney Casserly replied it is fairly correct. There has been quite a bit of analysis
actually done on this site, and some of the amounts are pretty clearly understood. As a
practical matter it is just part of the give and take. You have a developer who was
looking for more and we said, no. What we did is actually went to the City Assessor and
said give us some valuations of similar property. So they did this, and he thinks this is
the correct way to do it, backwards. They said what would you pay for a clean buildable
piece of land, and the Assessor came back with a couple of comparables and they were
E
roughly in the $4 range. So when the HRA calculates its analysis, they take out the $4 a
square foot. They are only going to provide assistance that would be over and above the
$4. If it brings down below the $4, then there is no reason to provide that assistance.
There are other ways to do it. You can get involved in a whole series of arrangements.
This happens more in housing product more often, but you can have it where they have
limitation on sales, profits, and percentages. Most of the time, in commerciallindustrial,
you do not do that.
Commissioner Meyer stated on the resolution, Section 1.04 on the bottom of the sheet,
they talk about the Authority has prepared a modified redevelopment plan and modified
existing plans for the existing districts. Have they modified a redevelopment plan for the
project area? Modified their existing plans for existing districts?
Attorney Casserly replied every time they create a district you modify all of your
previous districts. They have a single project area and a single development program. So
every time they create a tax increment district, they are doing it inside the program and in
fact they are amending all of their existing districts so that they have the ability, such as
what they did with Medtronic, to move some of their resources around because it is not
just this specific tax increment district. They are amending their entire program,
including these costs. That is why they always put a bonding authority in here. They are
not going to issue bonds for this project. However, they would have the ability to do that.
This is more like a template. That is why these plans are so short and abbreviated
because the rest of their documents are in their program and that is why this one plan is
really just a page that amends their already existing program. If they look at their tax
increment district, they will find it very strange the way it is numbered. It is Tax
Increment #19 but it is subsection 20.1 and then it is 20.2, 20.3. That is because in
essence it is the 20th Chapter in their development program and that is why it has that
very specific language.
MOTION to approve Resolution No. , creating TIF District No. 19 by
Commissioner Gabel. Seconded by Commissioner Holm.
UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON COMMERS
DECLARED THE MOTION CARRIED UNANIMOUSLY.
4. Approval of Resolution to Adopt Development Agreement Between HRA &
Industrial Equities
MOTION by Commissioner Billings to table the resolution adopting the development
agreement until their March meeting. Seconded by Commissioner Gabel.
UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON COMMERS
DECLARED THE MOTION CARRIED UNANIMOUSLY.
5. Approval of City's Planning Division Request to Fund a Housing Condition
Survey.
10
Mr. Bolin stated they may recall that the HRA hired an intern back in 1994 who
completed a housing condition survey for the HRA. That person went through the entire
City, block by block, and rated the exteriors of every home. That data was used to target
promotional efforts for the different loan programs. There was a special program set up
for Hyde Park that he thinks came out of part of this study. That data was used to kind of
set an overall baseline for the condition of the housing stock in Fridley and was used
during the visioning sessions for the 1998 Comprehensive Plan. The data was also used
to set redevelopment priorities for the Council and Commissions, and Maxwell Research
integrated that data into the Fridley housing plan that was done at that time.
Mr. Bolin stated Planning staff has started to prepare for the upcoming visioning
meetings and have started working internally with the different City departments
regarding the different chapters for the 2008 Comprehensive Plan. A need for current
housing conditions data has surfaced,as a result of these meetings and has been viewed
by the Planning staff as an essential piece to providing the most accurate view of
Fridley's housing stock. The Planning division has budgeted for an intern to work with
their code enforcement process during the summer of 2007. It will allow them to be
more proactive during the summer months and take care of some of those code
violations. They have even contemplated a joint code enforcement/housing conditions
approach but, because of the different focuses, it would be very difficult to have both of
those things happening at the same time. A person can do the windshield survey for the
housing conditions much quicker than they can address all of the code issues that may
exist on each and every property. Consequently, a separate individual is preferred for the
housing study.
Mr. Bolin stated based on research they have done for their code enforcement intern,
they believe it will cost approximately $7,000 to fund this person for the summer. They
have checked with the Police Department, and there would be a vehicle available for this
person to use. They have estimated about $2,000 in gas and mileage for this. The total
of the request is $9,000. The Planning division respectfully requests $9,000 to perform
the housing conditions study that will help both their future planning efforts and housing
efforts in the City of Fridley. He would also like to mention that he thinks this
information would be very helpful for our loan.programs. It may identify some different
neighborhoods that they should be targeting their programs into. Really these studies are
kind of a snapshot in time, and a lot has happened since the last study was done in 1994.
There were the storms in 1998 resulting in a lot of reinvestment in Fridley and also the
storms in 2005 that again caused people to get new roofs, etc. It would be interesting to
see what effects those storms, along with the City's own programs, have had on the
housing stock in Fridley.
Mr. Bolin stated his instincts tell him that the age of our housing stock is not a reflection
of the quality of our housing stock. Mr. Bolin thinks they have had quite a bit of
reinvestment because of those storms and, although the average home is 40 -45 years old,
he believes those are in much better condition than age would lead us to believe. Scott
11
Hickok did mention if the HRA had a number of concerns, he would be happy to wait.
until March for an answer from them.
Commissioner Gabel asked whether they had budgeted for this?
Mr. Bolin replied, no, this really came about in the last month and really in the last two
weeks. It has come up in a number of the focus groups for the Comprehensive Plan that
it would be helpful to have this information.
Commissioner Meyer commented regarding the discovery that 95 percent of Fridley's
housing stock will be 30 years or older or more, by 2009, just as a comment he stated
around the Twin Cities, a home being 80 -100 years old is not uncommon. Huge tracks of
those types of homes are going strong. So just as an aside he did not want them to
assume that just because Fridley's homes are 30 years old or more that they are going to
hell in a handbasket. We are a young suburban/community still in terms of housing
stock. Also, he understands the intern would be looking at the exterior and that is about
all a person can do, but he wanted to remind them of the things that deteriorate and date a
home are the plumbing system, the heating system, and the electrical system. These are
the major things that outdate a home and inhibit a home's long -term usage. Certainly
there are things like siding and deterioration of the roofing and that sort of thing, but the
big things are those systems he mentioned. He understands the intern would not be able
to consider those things as it would be a very time - consuming thing and a lot of expertise
an intern would not have, but those are the real things determining the validity of our
housing stock. Having said all of that, he thinks this would be a good move to participate
in.
Commissioner Billings asked the HRA if they found the last housing survey to be
beneficial to the HRA?
Chairperson Commers replied his recollection was that it was and he does think that
this would also be beneficial to them. He is somewhat happy to see it might also help the
City a little bit in their Comprehensive Plan. However, he thinks his vote for it is because
it would help assist the HRA and its different programs they have for the housing stock.
Commissioner Gabel replied, she does too.
Commissioner Billings asked for clarification be provided as to what the intern is going
to be looking for when conducting the housing survey.
MOTION by Commissioner Billings that the HRA staff bring back a pro forma of what
they would be expecting to be looking for with a view towards the HRA of financing an
amount not to exceed $9,000 for a housing survey in 2007. Seconded by Commissioner
Gabel.
UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON COMIVIERS
DECLARED THE MOTION CARRIED UNANIMOUSLY.
12
6. Approval of Purchase Agreements for GW1YE
Mr. Bolin stated since they last met in December, the Authority has closed on and taken
ownership of the former Car Quest building located at 6005 University Avenue. The
Authority has also reached an agreement and has a closing set for February 28 on the
original Van- O -Lite building located at 6041 University. In December the Authority also
authorized staff to contact the neighbors who border those two properties, as well as the
Oriental House since it is currently vacant. The aerial he has up on the screen shows
those properties that were contacted. The owners of the Sinclair station indicated that
they were not necessarily interested in a sale at this point but would discuss it among
themselves and contact the City if they were to change their minds.
Mr. Bolin stated he did order appraisals for the other four properties, and Dan Wilson
from Wilson Development has put together purchase agreements for those properties
based on the appraised values which they can find in their packet. At this time staff is
recommending the Authority move forward, making offers to purchase the Tae Kwon Do
Center. This would give them control of that entire block between 60th and where the
frontage road wraps around by 61St. Il Kim, the owner of the Tae Kwon Do Center, is a
very willing seller and Dan Wilson anticipates fairly low location costs to move the Tae
Kwon Do Center. Staff also recommends that the Authority presents offers to the owners
of the newer Van- O -Lite building and also the Oriental House while those properties are
vacant. That will eliminate the need to pay relocation benefits down the road. Of course
final terms would be subject to Authority approval, and they would also recommend (as
they did in December) Chairperson Commers to have the authority to go ahead and
execute any purchase agreements they would get back from the sellers prior to the March
meeting.
Mr. Bolin stated at this time staff would recommend that they further investigate
purchase of the Citgo site. The appraised value came in much higher than anyone
anticipated, and it definitely does have an impact on the City's image. However, being
that it is separate from the other properties by 61St Avenue may not necessarily be crucial
to any future redevelopment they would do in this neighborhood. The appraisers were
shocked by the value of the Citgo station. They had a laundry list of identical -sized gas
stations, where just in the last year or so, all of a sudden these are selling for $300 a
square foot for the building.
Commissioner Gabel asked why because if you buy those you have to get rid of the
underground tanks at a significant cost?
Mr. Bolin replied, yes, they would have to get rid of the underground tanks. They went
out and looked at a number of those comparables. It was typically these older, smaller
gas stations have also become a gas station/tobacco shop and some other use besides the
gas station and typical convenience store.
13
Commissioner Gabel commented so if you retain it as a gas station, that market value
stays in that high bracket.
Mr. Bolin replied, yes, and even these people who have turned the buildings into other
uses are paying $200 a square foot.
Chairperson Commers stated it has a funny location across the street in front of
St. Williams, and it would be interesting to see what somebody could come up with in
terms of redeveloping the property. It actually does not interfere with what they would
like to do on the south side. It would still be nice to take it out of there.
Mr. Bolin stated if they would like staff to make an offer on that one, they would be
more than happy to do that on their behalf.
Commissioner Meyer stated if they made an offer at the assessed value, rather than the
appraised value, he might be willing to go along with that. He asked whether a service
station has to have a special permit?
Mr. Bolin replied the Sinclair site has a special use permit for its vehicle repair portion of
it, but he believed gas stations themselves are a permitted use in that zoning district. He
believed some of the special uses that sometimes go along with them, for example, a car
wash or minor car repair, need a special use permit.
Commissioner Meyer asked if the assessor has factored in a possible soil contamination
cleanup for the Citgo site?
Mr. Bolin replied, yes, they do take that into consideration. However, surprisingly, in
conversations he has had with the appraiser for what those are worth, typically they find
that gas stations do not necessarily have the level of contamination you would think they
would have. Without doing any borings on the site, they do not know if there is any
contamination on this particular site.
Chairperson Commers stated usually those tanks will rust out and usually have a little
leakage. They have had that before. Down on the east side they had that problem.
Commissioner Meyer stated if they "bought that site, they would be liable for the cleanup
so this is something where, if they get more serious about wanting that, he thinks they
should one way or another get some soil borings.
Chairperson Commers asked attorney Casserly if there is still in place the State
program where they reimburse some percent of the cost to clean up gas stations?
Attorney Casserly replied as far as he knows the petro fund is still functioning.
Mr. Bolin stated if they would like to, between now and the March meeting, staff can do
some more research on this site in particular and try and find out if there is any
14
contamination. They can look into the petro fund and some of those and try and figure
out really what the liability might be from contamination if they were to purchase that
site.
Commissioner Meyer commented of course the only really good way to know is to put a
couple of borings in there, and it would be several thousands dollars of investment.
Mr. Bolin suggested in lieu of spending the money on the borings, he can check with the
Fire Department to see what they know about this site and any leaks there and they can
also check with the MPCA to see if there has been any records there as well.
Commissioner Billings stated he has mixed emotions about this, while he does not want
to see that corner become blighted, the other concern he has is that even if they were to
acquire the property he is having a difficult time visioning what might want to go on the
property. They could end up with a $400,000 piece of property with no inkling as to
what kind of development they could get on the site or sale price they could get. Maybe
a reasonable thing would be to take a half step back since it is not a key thing as to what
they are going to be doing on the south side of 61St, just let it go for a while, and see if
maybe the private market will scoop it up and turn it into something that is an
improvement to the site without having any financial influence from them.
Chairperson Commers agreed and stated he thought tonight they should at least go
forward with the other properties and keep the Citgo property in mind as to what they
want to do with it.
Commissioner Billings agreed.
Commissioner Meyer stated he really felt an architectural planning group should be
hired to tell them what their ideas are rather than going the other way and having
individual private developers come in with their own individual ideas. They have not
done that. It seems to him it is an opportunity.
Chairperson Commers stated he thought they are going to hear some of that tonight
from their guest from Corridor Housing Initiative.
Commissioner Holm asked regarding their having purchased the 6005 Building and not
having established a TIF District, do these buildings remain standing until they establish
a TIF?
Mr. Bolin replied they do not have to remain standing until they create the district. He
would think that once they acquire a few more of these properties and have some sense of
how soon the development may happen down here then perhaps they can go ahead and
pass a resolution that says they have the intent to create a TIF district in this area and
actually take the properties down. He believed then they have to get the TIF district
within three years of making that resolution.
15
Attorney Casserly replied, yes, that is correct. Within three years of the demolition.
Chairperson Commers commented that was an issue for them over on the west side.
MOTION by Commissioner Holm to approve the right to execute purchase agreements
if they come in and also authorize Commissioner Gabel as the vice - chairperson to
execute those agreements. Also, to approve submitting offers to these owners at the
values stated by Lake States Realty. Seconded by Commissioner Meyer.
UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON COMMERS
DECLARED THE MOTION CARRIED UNANIMOUSLY.
INFORMATIONAL ITEMS:
7. Corridor Housing Initiative — Presentation by Gretchen Nicholls
Mr. Bolin welcomed Gretchen Nicholls from the Center for Neighborhoods that has
developed a very unique neighborhood planning process which they refer to as the
"Corridor Housing Initiative." He has invited Gretchen to give them more information
on the Corridor Housing Initiative as it may be very useful for them if they do move
forward with the project on the Gateway Northeast area or for any future redevelopment
areas that may come up.
Gretchen Nicholls, Corridor Housing Initiative, stated Commissioner Meyer stated it
quite nicely that oftentimes communities are kind of always reacting to developers as
they come forward with ideas. This resource and process helps get ahead of the
development opportunities and help the community and the City frame what they would
like to see happen. It would kind of set some goals and expectations for development
that they can then market out to developers and encourage for implementing. It is
building on the notion of a community visioning where they are identifying what their
ideas are for what they would like to achieve with development. However, it helps
further that conversation by integrating the market realities of the area. So often the
visions of communities become very grand, and you can almost expect they are going to
want a bookstore and a whole array of things they would like to see happen for their
community but the truth of it is, is that really doable in the current marketplace, and is
that really viable for development. This process convenes a series of workshops and
integrates a vari ety of technical expertise to help facilitate the conversation to really look
at some of the examples and ideas around design and development and kind of insert
some of the market information into the conversations so people can become more
sophisticated and knowledgeable about what is really doable for their area.
Ms. Nicholls stated the Corridor Housing Initiative originated largely in partnership with
the City of Minneapolis, and they have really been exploring this resource in that city
now and have expanded into St. Paul. Yet they have not yet been in a suburb with this
resource, and so they are interested in trying to explore whether this could be useful for
Fridley. They think there is a lot of transferability so that they can adapt this resource
16
very easily to the suburban context, and do that in a respectful way that really appreciates
and acknowledges the identities of the community. The resources they have are based on
a lot of imagery. One of the technical supports they have is the Metropolitan Design
Center, University of Minnesota. They are a very gifted group of designers who have
really gathered a. whole array of different housing types, different mixed use options,
different kinds of development scenarios that are in their experience and local
environment so people can kind of see and say, oh, yes, that is what the building feels
like.
Ms. Nicholls stated density is another critical issue which they find is very cumbersome
in community process. They have actually found a variety of density scales throughout
the suburban area that models or identifies different subsidies. The configuration of the
whole idea is to help familiarize people with some of these terms and ideas and kind of
take it home. The density becomes less kind of scary or difficult to talk about.
Ms. Nicholls stated another facet of this process is that they also integrate some
information about what affordable housing looks like. There is also a lot of concern
about the appearance of affordable housing in a community and whether that is a good or
bad thing. They think there are a lot of stigmas or assumptions about that type of
development work, and they see there are a lot of very positive examples about that in the
community. There is less about serving an affordable population but more about the
design and the way that building is integrated into the community and can be viewed as
an asset.
Ms. Nicholls stated she thinks Fridley has an amazing opportunity with the parcels they
are aggregating along University Avenue and have actually something to talk about.
What they will do is work with the City to figure out what are the goals and outcomes
that they would like to see come out of the process — at the front end. They will ask who
are some of the community partners they think are critical to be involved in that
dialogue? Because they have not worked in the suburban communities, they really will
rely on the City to help them identify who they need to bring to the table and create that
conversation so people can really.create an ownership over the directions they choose to
go.
Ms. Nicholls stated the first stage is kind of the agreement setting period. Then in that
stage they are also designing a series of community workshops they will staff and
support. The first workshop is often just kind of an informational setting where they are
understanding what is the City's zoning code and what are some of the critical issues
around these parcels. Some people want to learn about transit in development or if there
is some sort of specific information people would like to have incorporated in this
dialogue. Then they bring those pieces into play.
Ms. Nicholls stated regarding the dialogue about what do people want to achieve through
development and what are their concerns, it is a way of kind of sifting out all kinds of
ideas and expectations people have about the area. That information has been used to
form the next exercise which is called the "block" exercise. This is probably the most
17
exciting because it is really interactive, and it is really an incredible learning place for
people to understand the area more effectively. Essentially what the block exercise does
is asks the participants to build a development concept on a specific parcel. They take
the dimensions etc. and put it into a form of spreadsheet, pump the numbers, and instantly
find out if that project made any money or if it lost too many dollars. It is really a
ballpark assessment but helps people appreciate how hard it is to get development to
work. Also, what are some of the variations that they could explore to see what could
really happen there. It is really interactive and becomes a fun process for people to learn.
People are not very defensive because it is the developer saying this is what we think
needs to happen here. It is really a chance to learn and understand and appreciate how
this stuff works. Also, what are some of the leverage points they can utilize in working
with developers to get some of the goals they would like to see happen.
Ms. Nicholls stated participants create a development concept and then that gets run
through the pro forma. While that is happening, there is a designer there who is
sketching what that building could look like so you are getting an actual image of what
massing could be according to certain design priorities or things people have liked about
some of the different buildings in the area. They are using some of the design facets that
people have liked and what could that building look like. She has some summary sheets
about what some of their block exercise results have been. It shows the parcel that was
explored, what it looks like currently, then some scenarios that people tended to like or
kind of rose to the top in terms of what they thought were a good idea. And then it
outlines the information. The example parcel she used had 67 units. They actually lost
$2,500 per unit on this but that is still within reason. There is also approximately 15,000
square feet of commercial square footage. Then she showed a the sketch that was
developed to display what that building would look like. That is the second workshop
which is often a very exciting exploration of some of these topics.
Ms. Nicholls stated the third workshop is then often a panel of developers with city
representatives, maybe some business leaders, to really talk about the potential for
redevelopment in the area. At that point the community has a much higher appreciation
for the obstacles or the difficulties that development would likely entail, and you could
really have a very interesting conversation where people are kind of she thinks better
suited to understand what really is going to happen. It kind of helps to manage some of
the expectations and try to help guide some of the thinking further for the area. Typically
in their process what they have done through the cities is the community takes that
information and develops a set of development objectives. In that process they are really
highlighting what they want to see happen for development in their area, and this
information that gets marketed or promoted to the developers they ..are building
relationships with. Developers in each of their project areas come forward and actually
proposed developments that fit within these development guidelines. It has been a very
effective tool for kind of setting the stage for development of helping the community
become more sophisticated in their relationships with developers and actually get to the
products they would like to see created.
Ms. Nicholls stated she does not know if this is the exact product that would be
developed for Fridley's community if if there would be a different .kind of iteration of
that. They are really open to, the City's thoughts and ideas for what kind of end products
would be helpful to them in a process like this but it has been a very exciting and
stimulating setting for people to kind of come into dialogue and people have found it
incredibly useful. This block exercise is often regarded as kind of transformational of
people's understanding of what is really doable.
Ms. Nicholls stated they have been getting some awards for this process. They just
received the National Award from the APA for this initiative, and they think it has a lot
of potential. They would really love to try it with Fridley in a suburban context.
Chairperson Commers stated it is certainly different than anything they have done.
When they had the developers come in with their ideas, ultimately, it has not been the
best of all worlds for them. They come in with some general ideas the City tries to
convey to them. However, he thinks generally regarding their projects, for instance the
last one they were talking about down on the river, they had some ideas but they certainly
were not consistent with what the developers thought should be done. He does not know
if this would have helped them get farther along before they turned it over to the
developers or not.
Commissioner Meyer asked Ms. Nicholls if they have a minimum size of a project that
would be feasible for something like this?
Ms. Nicholls replied, no, they have really allowed the community to identify what
parcels they would like to explore. Often it is based on information such as who is
interested in selling their sites or, if the City owns something, and this seems ready to go,
can we talk about this. They worked on sites that were actually too small to develop and
so they have gone through this whole process and then ended up needing to throw it out
because it just was not doable, and another parcel needed to be aggregated to make
something viable. Often the larger parcels have more potential to do many types of
things. They have really worked on a whole range of different scales of sites. So it is
really adaptable to whatever they have.
Chairperson Commers asked and they have done. mixed -use type things? Not just
housing?
Ms. Nicholls replied, yes. Usually communities want to explore what those mixed use
options could be. In the recent market, where housing has been so strong, it is difficult to
actually pull those off but she thinks there may be some shifts going on.
Commissioner Meyer asked for an idea of the framework on how they work. For
instance, she says alright, let's get together and then there is a certain effort and finances
involved and you get to a certain point. He asked for a better idea of what happens.
R
Ms. Nicholls replied, again, the end point is really up for negotiation with them as their
partner because they have the resources to facilitate and coordinate this process but they
do not have resources to buy parcels of land or to do the development. So essentially
they are creating an educational forum and helping build information for the City and
community to take that out to developers to implement those goals.
Commissioner Meyer stated, alright, they develop it so they can take it to the developers
and they do something with it within the framework of what they have created and the
City has approved.
Ms. Nicholls replied essentially what they are asking to do is set the stage for
development — what do they want to see happening?
Commissioner Meyer asked what kind of financial outlay would the HRA be asked to
give for this?
Ms. Nicholls replied this package of resources is approximately $30,000 for the whole
piece. However, they have received funding from the Family Housing Fund to offer this
to the HRA for free. They are able to give this resource to two communities to see if this
is a useful tool, see how it would work in this kind of community, and to see if it is
helpful or not. So really they are offering this as an "in kind" support to the City of
Fridley and its work.
Dr. Burns stated in some situations the lots do not have a lot of depth and they are right
up against the residential neighborhoods. Does she see this as a problem that can be
overcome?
Ms. Nicholls replied that is a similar dilemma for the cities, Minneapolis as well. The
frontage along the corridors is fairly shallow or they are narrow . parcels and the
residential is right behind it. Yes, she thinks it is an issue they are used to and they are
working with the city and trying to figure out is there some land use changes that need to
be in place and how to navigate that. It is true that they are often working with
developers who are very frustrated with that scenario. Their designers are comprised of a
team of creative thinkers. Because this process is more proactive you get a lot of creative
ideas emerging because people are not so defensive and reactive. So you are really
collaborating in a more effective way about how do you make this work and what can be
done. It just kind of shifts the whole feeling of the conversation, and you look for ideas
to help resolve those issues. She thinks they are ready for that and see what can happen.
Commissioner Meyer asked who are the participants in that? For the HRA it would be
them, the City Council, and how about in the neighborhood? How do they involve the
neighborhood?
Ms. Nicholls replied that would be part of the fun of this is to figure out who are the
stakeholders and how do they invite them into this conversation.
P
Commissioner Meyer asked they do not have any predisposed idea to include certain
groups?
Ms. Nicholls replied in the cities there are often neighborhood organizations that are kind
of overseeing a lot of these issues. In the suburbs that may not be the case. So they will
be looking for business associations or any sort of kind of organized groups who could
lend some insight or ideas into the process. People who have a stake in the corridor and
have an interest' in what is going to happen. Again, one of their technical experts who
works with the process is the Center for Policy Planning and Performance. They are very
skilled with outreach strategies and help strategize about how to bring in folks into the
conversation and what are some of the techniques they can use. They will also use a lot
of communication strategies to get information out to people about the conversation,
what has been learned, and how to share that information more broadly. They will set up
a website that will host all of the materials so people can access that electronically. But it
really is a process that tries to bring in as many voices as possible and helps the dialogue
get deeper.
Mr. Bolin stated when he had talked with Ms. Nicholls before he thinks she had
mentioned that in a lot or some of these neighborhoods, the city may not even own a
single parcel or maybe they own one but they do involve the other existing property
owners; and a lot of times they are very interested in participating and making changes
and improvements to their site.
Ms. Nicholls replied, yes, this is not about surprising anybody. They are letting people
know what is going on and often the community has a lot of information about who is
ready to go and what is the sense of the businesses' plan for the future. So a lot of that
findering information can come forward through this process, but they really work to
involve the business owners and the landowners in the area to make sure they understand
what is going on, that they can come in and involve their voices as well. In some cases
they have had some property owners participating in this process, and they own the site
adjacent to the site they are looking at and they go, well, it would be a lot easier to do
development if you include my area and so they just kind of include their parcel into the
conversation. So it is all in good will and there are no surprises for people that could
create kind of a fear of something underhanded going on.
Commissioner Gabel stated she likes what Ms. Nicholls is saying and it is all very
positive. She asked what are some of the pitfalls?
Ms. Nicholls replied, well, you are clearly signaling there is a lot of interest in the area so
there could some speculation from other property owners in the area that could react in
ways that would make it harder for other developments to happen in the area. Otherwise
they have not seen a lot of negative things so far. Fundamentally the communities have
been very successful in drawing developers in and building very constructive
relationships with them and it works out quite well.
Commissioner Gabel asked how many projects have they done?
21
Ms. Nicholls replied, the first phase, they have done five project areas and were all in the
City of Minneapolis. Sometimes they front end the master planning process and so the
development proposals take a while after the master planning is accomplished. However,
in each of those project areas there has been a proposal that has come and is in the works,
in the pipeline. It always takes a fair amount of time for development to get underway.
Regarding the second phase, which they are in currently, they have done three more.
Two are in St. Paul that are underway. They are hoping to do two in suburban
communities. Again, they have been doing this since 2003; and they have been very
pleased with what they have experimented so far and very interested in trying to transfer
this into different types of cities and see how it works.
Commissioner Gabel stated she is a little confused. She asked Ms. Nicholls if they have
just done this in Minneapolis and they are working in St. Paul, why does she have some
things on display which say Woodbury, Chaska, and a couple of other suburban cities?
Ms. Nicholls replied the Design Center, their technical parties, is a much vast and contains images of all sorts broader
resource. They have an image bank that is qui t
places. They anticipated trying to expand this into other kinds of communities; and so
they have started to collect information from suburban cities, small towns, and trying to
build some of these materials that are more relevant to Fridley's experience /development
forums.
Commissioner Meyer asked Ms. Nicholls regarding the five projects and have taken
them up to this point, have they then gone onto the next phase with developers on any of
these five to get them into reality?
Ms. Nicholls replied they do not do that but the communities in the cities do. What they
have done sometimes is hosted developer forums and showcased these different project
areas. There was a developer firm in the City of Minneapolis where they showcased the
five project areas they did in the, first phase. There were about 30 developers who
showed up. It was not a very talkative meeting, but there were. a lot of cards being
exchanged and a lot of information. She thought the developers really appreciated
knowing where the City wanted to see development happen and what kind. That
information seems very useful. The developers have raved about this and really
appreciate the chance to come into a known environment where they understand what
people are trying to do.
Commissioner Meyer asked whether any of them have picked up the ball and run with
actual development?
Ms. Nicholls replied, yes. The first project area the City actually ended up releasing a
site and did a RFP and there are developers who are now competing for that parcel, all in
alignment with these development objectives the community has outlined. Regarding the
second one, a developer was actually participating through the process, is getting them
one of the sites, and is moving forward with that project. The third, she believed it was
22
along Nicollet Avenue, and the Lander Group identified a parcel and started working
with the community and are moving forward with their proposal. South Lyndale was a
four - neighborhood process that funded a master planning process and now there is a
variety of proposals coming in because that is a very kind of upper -end area so there is a
lot stronger development interest in that area. And then West Broadway is another
corridor on the north side of Minneapolis, and there was a development that came
forward from that area as well. So in each case the process is preceded kind of with
information the developer can utilize and prepare a concept the community has already
indicated that they would support. It is this streamline that makes the predevelopment
work a lot of efficient.
Commissioner Billings asked what areas of St. Paul are they working with?
Ms. Nicholls replied they are starting in two very different places. One is St. Anthony
community, up Como Avenue. The second is on Rice Street. So one is a wealthier area
and the other is a lower - income area. The City wanted to see how the resource worked in
each and kind of contrasting those two typologies of communities.
Commissioner Billings asked about her statement they have funding to do projects for
two suburban municipalities, is there going to be a competition? Does everybody need to
submit what they want to do or something like that? Or is she saying that they would like
to do something in Fridley, and all they have to do is say, yes?
Ms. Nicholls replied, it is almost that easy. She is actually out promoting this resource to
different cities. She has met with Coon Rapids also and some other cities such as
Richfield and is in just some initial conversations with others. So she is just spreading
the word. She does not know if it is first -come, first - served. They have an oversight and
advisory committee who will actually receive the letters of interest and make the
decisions for which project areas are chosen. They are very anxious to initiate something
in a suburban setting so they have a good bet if they can move fast.
Commissioner Billings asked what kind of timeline are they looking at then in terms if
they were to send them a letter of. interest? Is there a deadline for their oversight
committee?
Ms. Nicholls replied their next application round is June 1, but she thinks they would not
need to hold that hard and fast. She thinks if they got a proposal in from a suburb that
they could move on, they would like to move on it as quickly as they could. They have
this funding through the end of the year and would like to be sure and get some
opportunities going. A lot of it depends on the HRA's timing, too — is this the right time
or would it be better to postpone for a few months but in essence it would be great if they
would just let them know if this is a resource they think would be valuable and how.
Commissioner Billings stated they have already made an investment in two pieces of
property, and tonight they authorized three more pieces of property in this particular area
where, if the offers are accepted, to go ahead and close on them. He thinks it is an area of
23
their City that they are committed to redeveloping, and at this point in time they have
nothing they have identified as what they really think should happen there other than get
rid of some buildings that do not look so nice. It sounds to him like the Corridor is
looking for a partner and the HRA is looking for some help and maybe the time is right.
Chairperson Commers stated he thought that was a very good characterization of where
they are at right now.
8. Monthly Housing Report
Mr. Bolin stated in regards to the HRA program, this being January, the first month of
the year was fairly slow for loans. There was one loan issued in Fridley by CEE, and that
was using some of their private bank funds. There were no remodeling advisor visits and
no home energy audit visits this month either. However, they are working hard on
improving those numbers for the next few months. Regarding all of the programs, they
have really been out promoting this past month. Dr. Burns wrote a nice article on the
HRA's home energy audit program that is going out in the February newsletter. Brian
Strand has run a number of public service announcements on Channel 17. Mr. Strand
gave him some numbers earlier today and he has run them on the loan program, 135
times since January 8. He has plugged the HRH's home energy audits, 54 times since the
middle of January; and the remodeling advisor services 100 times during that same time
frame. Also, the post card they see on the screen will be making its way out to Fridley
residents over the next week or so and, again, that touches on the HRA's different
programs and also plugs the upcoming Home and Garden Show on Saturday, February
24, will run from 9 a.m. to 2 p.m. and will be at the Schwan's Center in Blaine. This year
they have some very unique breakout sessions and seminars covering gardening, home
safety, energy efficiency, and some different hints on interior decorating, as well as a
demonstration on building your own patio walls. Another thing they are doing differently
this year is they got in touch with the Minnesota Chapter of Institute of Architects and
there is a group of architects from a different number of firms who have volunteered their
time to meet with folks at the Home and Garden Show and offer some free architectural
advice.
Dr. Burns pointed out on February 7 the Southern Anoka County Community
Consortium will have Julie Parenteau as a speaker who is going to talk about housing
sales in 2006 in Anoka County, the metro area, and in Fridley.
Chairperson Commers asked the Commission what do they want to do about Corridor
Housing Initiative program?
Commissioner Meyer replied if they wish could they agree tonight to have staff prepare
a Letter? He personally thinks it is an interesting try.
Commissioner Gabel stated she would -be willing to give it a shot.
24
Commissioner Holm stated he believed they should hold off until they come out on
some of the offers.
Commissioner Meyer stated, one thing is, for example if these people go through with
this it could spark not only the HRA's enthusiasm but also the other people to see the
possibilities. In other words it could be something that feeds on itself. He hears what
they are saying but it could go the other way, too, to be a catalyst for interest and
development.
Commissioner Billings asked regarding the Tae Kwon Do owner, they have stated they
are likely interested in negotiating a deal?
Mr. Bolin replied, yes, they are interested.
Commissioner Billings asked about the "new" Van- O -Lite building is on the market?
Mr. Bolin replied the realtor has called him just about every day for the last two weeks to
see if they have the appraisal back and are ready to make an offer.
Commissioner Billings pointed out the Oriental House is kind of down the block. If
they can throw something in down there it would be good, but the main focus he thinks
are the two properties they have acquired and the two properties on either side of it where
they understand there to be an interested seller. So he is kind of thinking with all due
respect they actually do go forward. Even if they come up with a vision with what the
corridor could look like, that does not mean they have to have control of it. It just means
they have the neighborhood and the City and all the interested players agree this is what
they kind of would like to see, whether it is the HRA or private development. He asked
Commissioner Holm to expand on what his reservations are.
Commissioner Holm replied his understanding was it was not that much of a slam -dunk
that these other sites are interested in selling with the offers they are planning to make. If
he is wrong then so be it. He guessed he did not understand why they wanted to move
ahead real fast before they know where* they are.
Commissioner Meyer replied there is nothing wrong with that reservation.
Commissioner Gabel stated she did not think they have anything to lose by figuring out
what it is they would like to see there. They already bought some of the land and know
they are buying more land. By giving the community and all of them an opportunity to
go ahead and figure what their vision is and significantly reduce cost to the HRA — she
hates for them to pass up the opportunity.
Chairperson Commers commented it does sound like they have a couple of relatively
willing sellers. They know they have some vacant buildings. They are not going to let
them sit forever without planning to do something with them. So he would think the
chances are pretty good that they are going to be able to negotiate something on them and
25
move forward. There is no reason not to pick up the Oriental place at this time. They
have already talked about Citgo, that is a bit of a different story. It seems to him, too,
that their acquisitions are going to through. At that point they are going to be sitting on
the property and want to acquire and get under control it but they do not have any real
thoughts. By turning this over to developers they have seen what they have gotten down
there on their University east side and they have been a little bit disappointed at times
about it. It is a nice project but maybe something could have been a little bit different.
There is no risk to them and, if they do not like it, they do not go forward with it; there is
really no risk. He does not see any downside.
Commissioner Holm stated his only concern was if they do not really have control of
that much property, they do not have much of a project area to work with, yes, they could
talk about a larger area but they could create more problems in terms of adjacent owners
wanting more money, etc. He thinks they all agree they want to do something to improve
the University Avenue corridor and they certainly do not have any objections to
proceeding with acquiring the adjacent properties at reasonable rates. However, would
they be prepared to pay substantially more than that? He does not know if they could
answer that in the same affirmative response.
Commissioner Meyer asked Commissioner Holm is he thinking there is a risk of jacking
the price up because somebody sees there is more potential than he might have realized
himself`?
Commissioner Gabel commented that is probably the risk they take when they are
putting projects together.
Commissioner Meyer stated, yes, if you put a fine facility next to any one of these and
the guy next door is thinking and, rightfully so, there is a little more money — there is
always that risk anyway. He guessed he did not see any risk in giving the Corridor
people a whole schmear whether they own the property or not to play with. Who knows
maybe in the process the HRA will see some use of the Citgo property, outrageous in the
way it is, somebody comes up with an idea and will want to find the money.
Commissioner Gabel commented they are just talking about a Letter of Interest, right?
Mr. Bolin stated a couple of points Ms. Nicholls made before the presentation when they
have seen each other, in a couple of these instances where they have done this process,
the City only owned one parcel on an entire block. They work a lot with the existing
property owners and they know down in this neighborhood the Alano Society for one —
they probably do not want to move. One of their board members came in and talked to
him and asked if they planned on taking their property and he said, no, everything is on a
voluntary basis. However, they would be involved in the planning process as well as a
pet care business' down the road. They necessarily would not need to control all of the
property to involve them in the process. It would put them in a position to really be
proactive with the development rather than reactive as sometimes happens with the reuse
of Columbia Arena comes to mind, and the City has not really set forth a vision out there
26
at all and they kind of hear rumblings from the development. group who has purchased
that as to what they want to do with the site and it may or may not match with what the
HRA wants to do with the site or the Council or the neighborhood up there. In this case
they would be able to get all the players involved and, even if they did not acquire any
more properties, they would have a vision for future private developers to take a look at
before they come into that neighborhood.
Chairperson Commers replied that seemed like it was the big benefit to it. He does not
see any risk to it and if they do not like it, reject it, or do not get all the properties to do
something, they do not have any downside to that.
MOTION by Chairperson Billings to request staff to contact the Corridor Housing
Initiative and find out what they are looking for in a Letter of Interest on behalf of the
HRA inviting them to be a partner with them. Seconded by Commissioner Meyer.
UPON A VOICE VOTE, CHAIRPERSON COMMERS, COMMISSIONER
GABEL, COMMISSIONER BILLINGS AND COMMISSIONER MEYER
VOTING AYE, AND COMMISSIONER HOLM VOTING NAY, THE MOTION
CARRIED ON A 4 -1 VOTE.
ADJOURNMENT:
MOTION by Commissioner Gabel to adjourn. Seconded by Commissioner Meyer.
UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON COMMERS
DECLARED THE MEETING ADJOURNED AT 9:45 P.M.
Respectfully submitted,
Denise M. Johnson
Recording Secretary
27
CITI Y F
FRID . '
Fridley Housing and
Redevelopment Authority
Action Item
DATE: May 31, 2007
TO: William W. Burns, HRA Executive Director
FROM: Paul Bolin, Assistant HRA Director
SUBJECT: Conduct Annual Meeting and Election of Officers
Article V, Section 3 of the Authority's by -laws requires the Board of Commissioners to
hold an annual meeting on the first Thursday of June. The purpose of the meeting is to
elect a Chair and Vice Chair to one -year terms. Below is a list of the commissioners
and the length of their current appointments.
Commissioner End of Term
Steve Billings
June 2010
John Meyer
June 2011
Bill Holm
June 2012
Pat Gabel (Vice Chair)
June 2008
Larry Commers (Chair)
June 2009
Recommendation
Staff recommends that the Authority conduct its annual meeting and elect a Chair and
Vice Chair as required by the Authority's by -laws.
ft
CITY-OF
F[I .`
Fridley Housing and
Redevelopment Authority
MEMORANDUM
DATE: May 31, 2007
TO: William W. Burns, HRA Executive Directoro
T
FROM: Paul Bolin, Assistant HRA Director
SUBJECT: Consider Membership in Minnesota Solutions for 2008 Legislative
Session
As you are aware, Minnesota Solutions is a consortium of communities throughout the
state that focuses on redevelopment issues, such as tax increment financing,
redevelopment funding, soil contamination and related issues. Bonnie Balach, the
group's Executive Director, spends a great deal of time working on legislative issues
that affect communities like Fridley. She has been a valuable advocate for inner -ring
suburbs and older cities that have redevelopment needs and was the key player in
getting our special Northstar legislation approved by the House and Senate.. Frankly,
there are very few individuals at the state capitol working on these specialized issues.
Attached is a memo from Ms. Balach that provides a wrap -up on redevelopment issues
during the 2007 legislative session. Ms. Balach sends out multiple legislative updates
throughout the session and keeps a close eye on issues affecting Fridley. Staff
believes it is important to remain active and engaged at the Legislature. There are
many important issues that need to be addressed in the 2008 session.
Recommendation
Staff recommends that the Authority participate in Minnesota Solutions for 2008 at cost
of $1,500.
Bolin, Paul
From: Bonnie Balach [bbalach @comcast.net]
Sent: Monday, May 07, 2007 8:03 PM
To: Bolin, Paul
Subject: Minnesota Solutions' Contribution
Attachments: Invoice (City of Fridley).doc
Invoice (City
Fridley).doc
May 8, 2007
TO: Paul Bolin
City of Fridley
FR: Bonnie Balach
RE: Minnesota Solutions' Contribution
Attached is the invoice for another year of valuable membership in Minnesota Solutions.
Although the jury is not quite out yet on this year's session, we've actually made some
important progress this year. After �ourTheyears
MetoropolgitanuAreatwill onceeagainlgetrasshotd
fairness to the Redevelopment Accou n
at half of the proceeds. The next step, though, will be to get some consequential
funding. The legislature did endorse a conference committee report that appropriates
$1.650M in general fund dollars for the program. That bill has been vetoed by the
Governor, though. Ideally, we will build up a blend of bonding and cash over the next
couple of years. Since the goal of redevelopment is to get impaired land into private
hands, cash will always be more effective. We also made some very useful changes in the
statute that affect both the Redevelopment Account and the Contamination Cleanup Grant
Program.
As you know, the tax conference committee continues to meet so it is
impossible to state definitely our progress for this session.
However, I am very optimistic about several issues on our legislative agenda. First of
get
all, we did get our Transit Improvement Center bill introduced. While we had hoped t
it moved forward this session, it is actually a very good start. We can start to discuss
uss
it during the interim and schedule hearings early next session. Secondly, we are very
close to accomplishing some handy tax increment financing changes. The House omnibus tax
bill contained our language that would an authority some flexibility as to when first
increment is received. I talked to Senator Bakk on Saturday and it looks like we will be
able to make that provision a reality. Also, we are in a good position as regards the use
of pooled increment within a bioscience zone for redevelopment in addition to public
infrastructure. Not only is that a boon.for bioscience business expansion, it sets a
precedent that will prove useful for transit oriented development. There are also a
number of semi - technical provisions on the House side that we have promoted. Last, but
not least, the income tax credit for historic preservation finally made it into the House
omnibus tax bill. Although it did not make it into the Senate omnibus tax bill, a
compromise could be reached if the tax conference committee budget allows for the
expenditure.
Although there were some challenges this year -- no money, new committee structures, etc.
This is the time to get creative
- we have reason to be optimistic about the future.
about public finance for housing and economic development, find some new angles, etc. We
have leadership and a legislature that are - disposed to at least li itin to ooldedeass and up
that share our goals for promoting job growth and housing opp
cities.
1
Thanks for your continued support.
70 Grove Street
MN L�blbalach@ rriahtomedi, MN 55115
Solutions (651) 260 -8690
cocast.net
II
TO: city of Fridley
FR: Bonnie Balach, Executive Director
Minnesota Solutions
RE: Minnesota Solutions' contribution
For membership in Minnesota Solutions (6/1/07 through 5/31/07) ..... ......................$1,500.00
Due and Payable June, 2007
Remit to:
Bonnie Balach
Minnesota Solutions
70 Grove Street
Mahtomedi, MN 55115
ACTION ITEM
HRA MEETING OF JUNE 7, 2007
CITY OF
FRIDLEY
Date: May 31, 2007 N
To: William Burns, City Manager 161,
From: Paul Bolin, Asst. Executive HRA Director
Scott Hickok, Community Development Director
Subject: Gateway Northeast Property Acguisition
Lake States Realty recently conducted an appraisal of the Sikh Society property located
at 6061 University Avenue, as the Sikh Society has expressed a real interest in having
the HRA purchase their property for inclusion in redevelopment efforts along University
Avenue. A copy of the appraisal report summary has been included for your review.
The value for the property follows:
Address / Building
Owner / Rep
FMV
Lake States Realty
City Assessor
Value
6061 Sikh Society)
DJ Sikka
$485,000
$278,500
The value for the Sikh Society is much higher than the City appraisers' value as former
restaurant comparables tend to have higher value than other uses.
Recommendation
Staff recommends that the Authority authorize staff to negotiate the purchase of the
Sikh Society property in order to provide more land for redevelopment north of the
Gateway East Townhomes. Staff also recommends that Chairman Commers be given
the authority to execute any purchase agreements matching the appraised values prior
to the Authority's next meeting.
SELF CONTAINED SUMMARY
MARKET VALUE APPRAISAL
o� ...,....... _... -
Looking easterly at subjecIrs front anci sourn sme t2lavauuti.
NE
THE SIKH SOCIETY OF MINNESOTA PROPERTY AT
5831 UNIVERSITY AVE. NE
FRIDLEY, MINNESOTA 55432
(SIKH HOUSE OF WORSHIP)
FOR
MR. PAUL BOON
THE CITY OF FRIDLEY
BY
LAKE STATE REALTY SERVICES, INC.
MAY 2007
ce Road
May 24, 2007
Mr. Paul Bolin
The City of Fridley
6431 University Ave. NE
Fridley, MN 55432
RE Self Contained Summary Fair Market Value Appraisal of:
The Sikh Society of Minnesota property at
5831 University Ave. NE
Fridley, MN 55432
(Sikh House of Worship)
Dear Mr. Bolin:
Pursuant to your request, I have personally inspected and prepared a summary fair
market value appraisal for the above referenced property. The appraisal estimates the
current market value of the fee simple interest in the described real estate, subject to
the certification, definitions, and the assumptions and limiting conditions as stated
within this appraisal.
After careful consideration of the all pertinent factors influencing market value, it is my
opinion that the subject property has a market value in fee simple estate as of April
30, 2007 (the date of inspection) of:
Four - Hundred Eghty -Five Thousand Dollars ... $485,000
The attached report describes the methods and reasoning used in the analyses, as well
as the data gathered during the investigation of the property and marketplace. This
appraisal report has been completed in conformance with the current version of the
Uniform Standards of Professional Appraisal Practice (USPAP) of the American
Appraisal Foundation; the OCC appraisal guidelines dated August 9, 1990;
requirements as set forth in 12 CFR Part 323, "Appraisals" as published in the Federal
Register, and as amended from time to time; and Section 301 of the Uniform
Assistance and Real Property Acquisition Policies Act of 1970.
Please feel free to contact me if you have any questions regarding this report. Thank
you for the opportunity to assist you in this valuation matter.
Respectfully Submitted,
Paul G. Schwartz, Certified General Appraiser
Minn. #: 20002323
Executive Summary
ADDRESS:
5831 University Ave. NE, Fridley, MN 55432
PROPERTY TYPE
One level commercial building (with partial basement)
housing a Sikh House of Worship; former McDonald's fast
food restaurant
OWNER
Per Anoka County Tax Records, the owner is Sikh, Society
of Minnesota, with a mailing address of the subject
property.
INTEREST APPRAISED:
Fee Simple
APPRAISAL PURPOSE
Estimate Fair Market Value
APPRAISAL USE
Internal planning purposes and possible negotiation purposes
related to proposed fee title purchase
SITE SIZE
35,750 s.f. per county plat map (in addenda of report)
ZONING:
C -2, General Business District, as governed by the City of
Fridley
HIGHEST AND BEST
As vacant: Commercial use
USE
As improved: Existing use or adaptive re-use
FIVE YEARS SALES
According to county records the subject property last
HISTORY:
transferred 12/21/92 for $72,000.
IMPROVEMENTS:
A single one -level building with 3,022 s.f. (with a partial
basement level)
PROPERTY I.D. #:
23- 30 -24 -24 -0022
ASSESSOR'S
Land = $91,500; Improvements = $187,000; total =
ESTIMATED PROPERTY
$278,500
VALUE (2008 estimated
values for 2007 payable
taxes):
PROPERTY TAXES
$0.00 (no tax is due as it is owned by a tax- exempt entity);
(2007 payable):
$79.97 assessment balance - annual installment amount
VALUE BY COST APPROACH:
N/A
VALUE BY MARKET APPROACH:
$485,000
VALUE BY INCOME APPROACH:
N/A
APPRAISER'S ESTIMATE OF MARKET VALUE $485,000
DATE OF VALUATION:
April 30, 2007, the date of most recent inspection
APPRAISER
Paul G. Schwartz, Certified General Appraiser, MN
#20002323
INFORMARTIONAL ITEM
HRA MEETING OF JUNE 75 2007
CRY of
FRIDLEY
Date: May 31, 2007
To: William Burns, City Manager
From: Paul Bolin, Asst. Executive HRA Director
Scott Hickok, Community Development Director
Subject: Gateway Northeast Planning Update
Since the HRA / Council meeting on May 17th, staff has been busy working with the
Center for Neighborhoods and the Fridley Community Center to establish final dates
and meeting space for the upcoming Corridor Housing Initiative planning process. A
letter has been sent to all of the surrounding properties that explains the upcoming
planning process and invitation postcards are being prepared.
All meetings will be held from 7:00 — 9:00 P.M. at Fridley Community Center,
Thursday, July 19: Rethinking University Avenue
Learn about some key opportunities along University Avenue to revitalize the corridor,
and share your ideas about how housing, transit, and commercial development can
make University Avenue a more vibrant corridor and asset to the community.
Thursday, August 16: Development ABC's
Join your neighbors in an interactive workshop to create feasible development
scenarios for University Avenue. Design and development experts will be on hand to
share ideas and insights.
Thursday, September 6: Moving Forward!
Explore the opportunities and challenges for development along University Avenue with
a panel of developers, business leaders, and city representatives to build a strategic
road map for the future of University Avenue.
Thursday, September 20: Framing the Recommendations
Recommendations will be drafted for the City Council and HRA Commissioners on
development objectives for publicly owned sites along University Avenue.
IMILI INFORMARTIONAL ITEM
KJ
HRA MEETING OF JUNE 712007
MY OF
FRIDLEY
Date: May 31, 2007
To: William Burns, City Manager
From: Paul Bolin, Asst. Executive HRA Director
Scott Hickok, Community Development Director
Subject: Northstar Rail Funding Update
When the HRA / Council meeting on May 17', we had just been notified that our
proposed special legislation had cleared both the House and the Senate, and at that
time staff was 99% certain that we would get our legislation. Shortly thereafter our
optimism was quickly tempered by the Governors threats to veto the entire tax bill.
Thursday morning I was met with the following e-mail message from Attorney Casserly,
"The tax bill has been vetoed."
The tax bill contained, in addition to our legislation, a number of items of importance to
many metro cities. There was increased Local Government Aid funding, assistance for
Mall of America expansion, and funding for Thomson -West expansion included in the
tax bill. The Governors veto has hurt a number of cities, and most unfortunately for us,
prevents us from using otherwise unusable funds to help this regional rail project along.
Attorney Casserly, the City's Finance Staff, and I am working to identify all legal
sources of funding the HRA may have available at this time to undertake the installation
of the tunnel. We will bring these options and recommendations to you on Thursday
night.
Fridley HRA
Housing Program Summary
Cover Page
June 7, 2007 HRA Meeting
Report Description
Loan Application Summary Loan application activity (e.g. mailed
out, in process, closed loans) for May,
2007 and year -to -date.
Loan Origination Report
Remodeling Advisor &
Operation Insulation
��S 1+\�ar r�'•o..'7"� bra
Q,T -ri,",•S') . s
y
Loan originations for May 2007 and
year -to -date.
Shows the number of field appointments
scheduled and completed the Operation
Insulation and Remodeling Advisor
Services administered by Center for
Energy and Environment.
W"(( Lae Quo v, de d
P" 0 r-.+ '11-D -
H:\—Paul's Documents \HRA\HRA Agenda Items\20061June 1, 20060ousing Program Cover Page(June06).doc
va�,er
FRIDLEY HOUSING & REDEVELOPMENT AUTHORITY
June 7, 2007
1. Northstar Rail Timing /Funding Update
As I had mentioned in an e-mail, staff attended the NGDA Executive Committee meeting on Wednesday
afternoon. The following is a summary of the meeting, with some new information.
Item #1 — Project "bridge" financing — There is a need to expend nearly $46M in funds to close on the deal with
BNSF and begin construction this summer. The problem is that, though the State has agreed to help fund
these activities, they cannot release their funding until the Federal Final Grant Agreement is in place. This
won't happen until sometime in September (at the earliest). To begin construction on time it was decided today
that Hennepin County would fund $22.95M and Anoka County & Sherburne County would split the other
$22.95M (80% Anoka County & 20 %Sherbume) to provide the financing "bridge" necessary to move forward.
Item #2 — Should NCDA Close on purchase & sale agreement with BNSF this morning? — After settling item #1,
above, there was very little discussion. Everyone wants to see this project move forward. It was also
mentioned that BNSF is willing to let NCDA postpone the 2"d payment until December 15th, 2007.
Item #3 — Fridley Update — Unbeknownst to us, The State, the NCDA, & BNSF were up late Tuesday night
finalizing the parameters for Fridley's station ... and in fact Lt. Gov. Molnau was signing an agreement with
BNSF yesterday. This agreement gives the State (or NCDA or City) until November 1. 2007 to come up with
the $1.21VI to fund the Fridley tunnel. Once the tunnel goes in, the State only has 4 years to get the Fridley
station built or BNSF has no obligation to let us have a station. There was no direct statement made that the
State would come up with the funding at yesterdays meeting. When I spoke with Tim Yantos late on Thursday
afternoon, he stated that it will still be up to the City County, & rail authority to come up with the money.
The large packet of information attached are the recently signed agreements.
2. Summer Intern / Housing Conditions Survey
Ms. Laurel Tracy has been making great progress in conducting the Housing Conditions survey. Using a
handheld PC, she has completed reviewing all of the homes north of Mississippi Street, between the river
and BNSF tracks in only 7 days. She is getting valuable information that can aid in targeting our home
improvement programs to those homes most in need. As we had hypothesized, due to all the work done
to repair storm damage, the bulk of homes surveyed are in good - excellent condition. Ms. Tracy will
attend the HRA's August 2 °a meeting and give a brief presentation on the process and results to date.
3. Gateway West
Earlier this week we closed on 2 more lots with Blueprint Homes. One of the lots is on the southern
block and soon we will see a new home constructed on the corner of 57th Place and 3d Street. I am
certain that this activity will now spur more interest in the southern block.
If there are any items you would like covered in upcoming issues of the Non - Agenda Update please send
me an e-mail. bolinp @ci.fddley.mn.us
11
FRMLEY MASTER AGREEMENT
This Agreement is made and entered into as of the 31st day of May, 2007, by and
between BNSF Railway Company ( "BNSF ") and the Commissioner of Transportation acting on
behalf of the State of Minnesota (the "State ").
RECITALS
A. BNSF has previously entered into a Purchase and Sale Agreement ( "PSA ") with
State dated March 7, 2007 whereby BNSF agreed to convey to State certain Commuter
Easements as defined in the PSA.
B. BNSF has as of the date hereof conveyed to State the First Commuter Easement
as defined in the PSA.
C. In connection with the Commuter Easements, the Metropolitan Council ( "Met
Council ") has as of the date hereof entered into with BNSF various agreements, including
without limitation, a Joint Use Agreement ( "JUA ") and a Commuter Service Agreement
( "CSA ").
D. Pursuant to the JUA and the CSA, Met Council has the right to operate Commuter
Service Trains (as defined in the JUA and CSA) with station stops at Fridley among other
stations (the Fridley station stop is hereinafter referred to as the "Fridley Platform ").
E. State and BNSF wish to set forth additional terms and conditions concerning Met
Council's rights to build the Fridley Platform pursuant to the Platform Agreement — Fridley
Station attached hereto as Exhibit A (the "Platform Agreement ").
F. State and BNSF wish to set forth the conditions pursuant to which BNSF will
construct a tunnel at the Fridley Station (the "Tunnel ") pursuant to the Fridley Tunnel
Construction Agreement attached hereto as Exhibit B (the "Construction Agreement "), in the
generally depicted in the Construction Agreement.
G. State and BNSF wish to set forth the conditions pursuant to which BNSF will
grant an easement for the right to complete construction of the Tunnel pursuant to the Underpass
Easement Agreement attached hereto as Exhibit C ( "Underpass Agreement ") and use the Tunnel
for the purposes set forth in the Underpass Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants
and agreements contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Option for Construction Agreement. The State or its Designee (as hereinafter
defined) may at anytime on or before November 1, 2007 execute the Construction Agreement
and deliver it to BNSF. BNSF shall thereafter as soon as reasonably practical execute the
Construction Agreement and the parties will be bound by its terms.
525261.5
Fridley Master Agreement
2. Expiration of Option for Construction Agreement. If State or its Designee does not
execute the Construction Agreement and deliver it to BNSF on or before November 1, 2007,
then BNSF shall have no further obligation to enter into the Construction Agreement or to be
bound thereby.
3. Option for Underpass Agreement. If State or its Designee and BNSF enter into the
Construction Agreement pursuant to paragraph 1, State or its Designee may at anytime on or
before the expiration of four (4) years from the date that BNSF completes its obligations to
construct the Underpass under the Construction Agreement enter into the Underpass Agreement
and deliver it to BNSF, which sets forth, among other things, the additional work and obligations
of the State or its Designee in order for the Tunnel to become operational. BNSF shall as soon as
reasonably practical thereafter execute the Underpass Agreement and the parties will be bound
by its terms.
4. Expiration of Option for Underpass Agreement. If State or its Designee does not
enter into the Underpass Agreement on or before the date set forth in paragraph 3 above, then
BNSF shall thereafter have no further obligation to enter into the Underpass Agreement or to be
bound thereby and BNSF may, at its cost and expense, remove, fill -in or otherwise modify or
demolish the Tunnel or leave it in place and State or its Designee shall have no rights with
respect thereto unless agreed to by the parties.
5. Platform Agreement. State or its Designee may at any time at its option determine to
construct a station in Fridley. State or its Designee shall not have the right to enter into the
Platform Agreement unless either (a) State or its Designee has entered into both the Construction
Agreement and the Underpass Easement Agreement and is in compliance with their respective
terms, or (b) State or its Designee has entered into a separate agreement with BNSF pursuant to
which State or its Designee will pay BNSF for any modifications to BNSF's track and signal
reasonably necessary to maintain the operational fluidity and capacity of the Northstar Corridor
that exists at such time during the construction of the Fridley Platform. In the event (a) does not
occur then in such event the parties shall meet as soon as possible to negotiate in good faith, seek
ways to minimize and mitigate such modifications and to enter into a separate agreement setting
forth the additional reasonable cost and expense BNSF must incur for such modifications and the
timing, payments and other conditions related thereto. Such agreement will set forth the time
periods at which such modifications will be performed and the time period at which Met Council
may enter into the Platform Agreement in order to begin construction its Platform pursuant to the
Platform Agreement and will reimburse BNSF such reasonable costs and expenses.
6. Budget. The parties acknowledge that in order to exercise the option set forth in
paragraph 1, the State will require a budget in reasonable detail of the costs and expenses
estimated to be incurred by BNSF in connection with the Construction Agreement. Accordingly,
BNSF agrees to provide State a written budget in reasonable detail of the costs and expenses of
BNSF to be paid by State or its Designee pursuant to the Construction Agreement, including
BNSF force account and subcontractors, within forty-five (45) days from date of delivery to
BNSF of mutually acceptable plans and specifications for the Tunnel. Upon the request of State
or its Designee, BNSF will meet with State or its Designee to review and, if appropriate, modify
its budget for the Construction Agreement.
525261.5 2
Fridley Master Agreement
7. Notices. Except as otherwise expressly provided in this Agreement, all requests,
notices, demands, authorizations, directions, consents, waivers or other communications required
or permitted under this Agreement shall be in writing and shall either be: (i) delivered in person,
(ii) deposited postage prepaid in the certified mails of the United States, return receipt requested,
(iii) delivered by a nationally recognized overnight or same -day courier service that obtains
receipts, or (iv) delivered via facsimile, with confirmation of receipt by telephone, with an
original deposited postage prepaid in the first class mails of the United States, addressed to the
State at:
Minnesota Department of Transportation
395 John Ireland Blvd.
St. Paul, MN 55155
Attn: Bob McFarlin
With copy to: The Metropolitan Council
390 N. Robert Street
Saint Paul, MN 55101
Attn: Regional Administrator
or to BNSF at: BNSF Railway Company
2500 Lou Menk Drive
Fort Worth, Texas 76131
ATTN: Richard E. Weicher, Vice President and General Counsel -
Regulatory
With copy to: BNSF Railway Company
2600 Lou Menk Drive
Fort Worth, Texas 76131
ATTN: DJ Mitchell, AVP, Passenger Operations
or to such person and at such other addresses as either party may at any time or from time to time
designate for itself by notice in accordance herewith. Each such request, notice, demand,
authorization, direction, consent, waiver or other document shall be deemed to be delivered to a
party when received at its address set forth or designated as above provided.
8. Miscellaneous.
7.1 Designee. For the purpose of this Agreement, State's "Designee" shall
only be the Met Council or any other permitted assignee under Section 11.10 of the JUA;
provided further, until the Platform Agreement is entered into the State may designate
another public entity to enter into the Construction Agreement.
7.2 Governing Law, Rules of Construction. This Agreement shall
be governed by and construed in accordance with the internal laws of the State of
Minnesota, without reference to the conflicts of laws or choice of law provisions thereof.
The titles of sections and subsections herein have been inserted as a matter of
525261.5 3
Fridley Master Agreement
convenience of reference only and shall not control or affect the meaning or construction
of any of the terms or provisions herein. All references herein to the singular shall
include the plural, and vice versa. The parties agree that this Agreement is the result of
negotiation by the parties, each of whom was represented by counsel, and thus, this
Agreement shall not be construed against the maker thereof.
7.2 No Waiver. Neither the failure of either party to exercise any power given
such party hereunder or to insist upon strict compliance by the other party with its
obligations hereunder, nor any custom or practice of the parties at variance with the terms
hereof shall constitute a waiver of either party's right to demand exact compliance with
the terms hereof.
7.3 Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the subject matter hereof and any other prior understandings
or agreements are merged herein and no representations, inducements, promises or
agreements, oral or otherwise, between the parties not embodied herein or incorporated
herein by reference shall be of any force or effect.
7.4 Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, executors, administrators, legal
representatives, successors and assigns. The rights and obligations under the Agreement
may be assigned only in accordance with Section 11.10 of the JUA.
7.5 Amendments. No amendment to this Agreement shall be binding on any
of the parties hereto unless such amendment is in a single writing executed by both
parties to this Agreement.
7.6 Date For Performance. If the time period by which any right, option or
election provided under this Agreement must be exercised, or by which any act required
hereunder must be performed, expires on a Saturday, Sunday or legal or bank holiday, then
such time period shall be automatically extended through the close of business on the next
regularly scheduled business day.
7.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which, when taken together,
shall constitute but one and the same instrument.
7.8 Time of the Essence. Time shall be of the essence of this Agreement and
each and every term and condition hereof.
7.9 Attomevs' Fees. In the event that either party shall bring an action or legal
proceeding for an alleged breach of any provision of this Agreement or any representation,
warranty, covenant or agreement herein set forth, or to enforce, protect, determine or establish any
term, covenant or provision of this Agreement or the rights hereunder of either party, the prevailing
party shall be entitled to recover from the non - prevailing party, as a part of such action or
proceedings, or in a separate action brought for that purpose, reasonable attorneys' fees and costs,
525261.5 4
Fridley Master Agreement
expert witness fees and court costs as may be fined by the court or jury including those incurred on
appeal.
7.10 Relationship. Nothing in this Agreement or the Other Agreements shall be
deemed or construed by the parties hereto, nor by any other party, as creating the relationship of
principal and agent or of partnership or of joint venture between the parties hereto.
7.11 Waiver of Trial by Jury. BNSF AND THE STATE HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH,
OUT OF OR OTHERWISE RELATING TO, THIS AGREEMENT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
525261.5 5
Fridley Master Agreement
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by its duly authorized signatory, effective as of the day and year first above written.
BNSF RAILWAY COMPANY
By:
Name: Richard E. Weicher
Title: Vice President and General Counsel - Regulatory
MINNESOTA DEPARTMENT OF
TRANSPORTATION
RV-
Name: Carol Molnau
Title: Commissioner of Transportation
525261.5 6
Fridley Master Agreement
EXHIBIT A TO FRIDLEY MASTER AGREEMENT
UNDERPASS CONSTRUCTION AGREEMENT
This Underpass Construction Agreement ( "Agreement "), is executed to be effective as of the
day of , 2007 ( "Effective Date "), by and between BNSF RAILWAY COMPANY, a
Delaware corporation ( "BNSF "), and THE METROPOLITAN COUNCIL, a public corporation and political
subdivision of the State of Minnesota ( "Agency").
RECITALS:
A. BNSF owns and operates a line of BNSF from Big Lake, Minnesota to Minneapolis,
Minnesota, which runs in and through the City of Fridley, County of Anoka, State of Minnesota (the
" Northstar Corridor");
B. The Commissioner of the Department of Transportation, acting on behalf of the State of
Minnesota (the "State ") and BNSF have entered into that certain Purchase and Sale Agreement dated as
of the March 7, 2007 (the "Purchase and Sale Agreement") providing for the purchase and sale of certain
commuter rail service easements (the "Easements ") in and to the Northstar Corridor, as more fully
described in the Purchase and Sale Agreement and the Joint Use Agreement (defined below), which
Easements shall be used for the Agency's operation of commuter service from Big Lake, Minnesota to
Minneapolis, Minnesota ( "Commuter Service ");
C. BNSF and Agency have entered into that certain Joint Use Agreement dated May 31,
2007 (the "Joint Use Agreement"), which governs the terms of joint use of the Northstar Corridor by the
State, BNSF and Agency and any Service Agreement as contemplated by the Joint Use Agreement (the
"Service Agreement"), which, during the term thereof, will also govem the terms of joint use of the
Northstar Corridor by the State, BNSF and Agency;
D. The terms of the Joint Use Agreement provide that Agency may construct a Commuter
Service Platform at approximately Milepost 16.0 in the City. of Fridley for Commuter Service purposes (the
"Fridley Platform'), subject to the terms, conditions and limitations provided in Fridley Master Agreement
between BNSF and State dated as of May 31, 2007 (the "Fridley Master Agreement "), which provides
additional terms and conditions relating to the Fridley Platform including the terms and conditions by
which the parties would agree to enter into an Underpass Agreement and /or a Platform Agreement (as
defined in the Fridley Master Agreement); and
E. The Fridley Master Agreement contemplates that State has until November 1, 2007 to
notify in writing BNSF that it wishes to enter into this Agreement, and State has so notified BNSF,
concerning the construction by BNSF on Agency's behalf of a pedestrian underpass (tunnel) under the
Northstar Corridor, to be known as the "Fridley Station Underpass ") in order to facilitate Commuter
Service.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained
herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I — SCOPE OF WORK
1. The term "Project" as used herein includes any and all work related to the construction of the
proposed Fridley Station Underpass (hereinafter referred to as the "Structure "), in the location generally
shown on Exhibit A attached hereto and incorporated herein, including, but not limited to, any and all
changes to telephone, telegraph, signal and electrical lines and appurtenances, temporary and
permanent track work, fencing, grading, alterations to or new construction of drainage facilities,
preliminary and construction engineering and contract preparation.
525366.3 Fridley Underpass Construction Agreement
2. Agency must furnish to BNSF plans and specifications for the Project. Four sets of said plans
(reduced size 11" x 17 "), together with two copies of calculations, and two copies of specifications in
English Units, must be submitted to BNSF for approval prior to commencement of any construction. The
plans and specifications must provide for and maintain minimum vertical and horizontal clearances, as
required and approved by BNSF as part of the plans and specifications for the Project. The plans and
specifications must (i) include work methods and timing and a proposed date for substantial completion of
the Project, (ii) identify the shoring or cribbing to be used which must comply with BNSF Bridge
Requirements set forth on Exhibit B attached to this Agreement to the extent applicable and incorporated
herein. Additionally, the shoring and cribbing must comply with all applicable requirements promulgated
by state and federal agencies, departments, commissions and other legislative bodies.Plans and
specifications to include all work items temporary or permanent contemplated by the Agency as
necessary for future completion by Agency under the Underpass Easement Agreement of the
components of the Structure necessary in conjunction with Fridley Platform to be constructed by the
Agency at a later date as contemplated in the Fridley Master Agreement.
3. BNSF will promptly review such plans and specifications and upon such approval give Agency
final written notice thereof. If BNSF objects to any portion of the plans and specifications then the parties
shall meet to resolve in good faith any objections. Upon BNSF's final written approval of the plans and
specifications, said plans and specifications will become part of this Agreement and are hereby
incorporated herein. Any approval of the plans and specifications by BNSF shall in no way obligate
BNSF in any manner with respect to the finished product design and /or construction. Any approval by
BNSF shall mean only that the plans and specifications meet the subjective standards of BNSF, and such
approval by BNSF shall not be deemed to mean that the plans and specifications or construction is
structurally sound and appropriate or that such plans and specifications meet applicable regulations,
laws, statutes or local ordinances and /or building codes.
4. Agency must make any required application and obtain all required permits and approvals for the
construction of the Project.
5. Agency must make any and all arrangements for the installation or relocation of wire lines, pipe
lines and other facilities owned by private persons, companies, corporations, political subdivisions or
public utilities other than BNSF which may be necessary for the construction of the Project.
6. Agency shall be solely responsible for the costs of performing its obligations under this Article I,
and no cap on BNSF's right to reimbursement provided in this Agreement shall apply to any of Authority's
obligations under this Article I.
7. BNSF shall provide Agency an estimated budget of the costs and expenses to be incurred by
BNSF in performing its obligations under this Agreement, including, without limitation, BNSF's force
account and subcontractors, prior to beginning work hereunder and will upon request of Agency promptly
meet with Agency to review said budget.
ARTICLE II — BNSF WORK
1. Upon approval of the plans and specifications and the other requirements of Agency set forth in
Article I, BNSF will cause the Project to be completed in substantial compliance with the approved plans
and specifications. The portion of the Project directly related to the construction of the Structure (the
"Tunnel Work ") will be subcontracted by BNSF in accordance with BNSF's standard requirements for
contractor's working on BNSF's right of way. The principal elements of the Tunnel Work are as follows:
(a) Construction of the Structure;
(b) All necessary grading and paving, including backfill of excavations and restoration of
disturbed vegetation on BNSF's right -of -way including but not limited to 12 inches of
subballast;
525366.3 Fridley Underpass Construction Agreement
2
M Placement of a waterproof membrane on the deck of the Structure, and after the
placement of such waterproofing membrane, placement of a layer of crushed rock ballast
(not to exceed six (6) inches in thickness) on the deck of the Structure;
(d) Provide suitable drainage, both temporary and permanent;
(e) Job site cleanup including removal of all construction materials, concrete debris, surplus
soil, refuse, contaminated soils, asphalt debris, litter and other waste materials to the
satisfaction of BNSF; and
(f) Sealing the Structure upon acceptance by Agency of its completed condition as
contemplated below.
The portion of the Project related to removing track panels or other track relocation or modification work
necessary to perform the Tunnel Work including placement of ballast on the track roadbeds for the
permanent replacement of the tracks (the "Track Work ") will be performed by BNSF's labor. BNSF will
provide Agency an estimate for the Tunnel Work but Agency will be responsible to pay BNSF for the
actual costs incurred by BNSF to perform the Tunnel Work. Agency will also reimburse BNSF for the
actual costs incurred by BNSF to perform the Track Work provided, however, that Agency's obligation to
reimburse BNSF for costs related to the Tunnel Work shall not exceed the sum of $300,000.
2 Nothing in this Agreement shall restrict BNSF's rights, and the rights of any others who have
obtained, or may obtain, permission or authority from BNSF, to do the following:
(a) Operate, maintain, renew and /or relocate any and all existing BNSF track or tracks, wires,
pipelines and other facilities of like character upon, over or under the surface of said right -of-
way; and
(b) Construct, operate, maintain, renew and /or relocate upon said right -of -way; without limitation,
such facilities as the BNSF may from time to time deem appropriate, provided such facilities
do not materially interfere with the Agency's use of the Structure;
3. For both the Tunnel Work and the Track Work, BNSF shall be responsible for:
(a) Furnishing flagging services necessary for the safety of BNSF's property and the operation
of its trains during construction. of the Project in accordance with BNSF's standard
requirements therefor; and
(b) Furnishing and inspection as required in connection with the construction of the Project;
4. In addition to the foregoing, Agency agrees to reimburse BNSF for any costs incurred by BNSF
reasonably required to remediate any hazardous materials disturbed as part of the Project.
5. All work contemplated in this Agreement must be performed in a good and workmanlike manner
and each portion must be promptly commenced by the party obligated hereunder to perform the same
and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any
changes or modifications during construction which affect the Project will be subject to Agency's approval
prior to the commencement of any such changes or modifications. Agency will have the right from time to
time to inspect the Project provided Agency complies with BNSF's standard safety requirements for such
entry on its right of way.
6. To the extent applicable, the work hereunder must be done in accordance with the Bridge
Requirements set forth on Exhibit B.
7. BNSF must require its contractor(s) to reasonably adhere to the Project's construction schedule
for all Project work. Regardless of the requirements of the construction schedule, BNSF reserves the
right to reallocate the labor forces assigned to complete the BNSF work in the event of an emergency to
525366.3 3 Fridley Underpass Construction Agreement
provide for the immediate restoration of BNSF operations (BNSF or its related railroads) or to protect
persons or property on or near any BNSF owned property. BNSF will not be liable for any additional
costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that
any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect
consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement
by BNSF.
8. During the construction of the Project, BNSF will send Agency progressive invoices detailing the
costs of the BNSF work performed by BNSF under this Agreement. For the purposes of this Agreement,
"cost" or "costs" or "expense" or "expenses" includes, but is not limited to, actual labor and material costs
including all assignable additives, and material and supply costs at current value where used. Agency
shall pay BNSF within 30 days of receipt of such invoices and if not so paid Agency shall be assessed a
charge for late payments as provided in the Joint Use Agreement. Upon completion of the Project, BNSF
will send Agency a detailed invoice of final costs for the Project.
9. BNSF shall notify Agency upon completion of the Project and the parties shall arrange within 30
days a joint inspection of the Structure to inspect whether the Structure was constructed in substantial
compliance with the approved plans and specifications. In the event the parties agree on portions of the
Structure that were not completed in substantial compliance with the approved plans and specifications
they will identify a joint punch list of said items. Upon completion of the correction of such punch list
items Agency shall notify BNSF in writing that it has accepted the condition of the Structure. BNSF shall
provide to Agency one set of as built plans (prepared in English Units) as well as one set of computer
diskettes containing as built CAD drawings of the Structure and identifying the software used for the CAD
drawings. Upon such completion of the punch list items BNSF shall have no obligation to maintain the
Structure.
10. BNSF may, at its expense, make future changes or additions to its BNSF right of way if
necessary or desirable, in BNSF's sole discretion, including, without limitation the following: (i) the right to
raise or lower the grade o� change the alignment of its tracks, (ii) the right to lay additional track or tracks,
or (iii) the right to build other facilities in connection with the operation of its BNSF. Such changes or
additions must not change, alter or compromise the use and life of the Structure.
11. Each party shall have the inspection and examination rights as to books, papers, records and
accounts pertaining to this Agreement as set forth in Section 3.9 of the Joint Use Agreement.
12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the
successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party
hereto may assign any of its rights or obligations hereunder without the prior written consent of the other
party.
13. Neither termination nor expiration of this Agreement will release either party from any liability or
obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or
events happening prior to the date of termination or expiration.
14. To the maximum extent possible, each provision of this Agreement will be interpreted in such a
manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited
by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of
such prohibition or invalidity and the remainder of the provision will be enforceable.
15. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) and
the agreements referenced in the recitals are the full and complete agreement between BNSF and
Agency with respect to the subject matter herein and supersedes any' and all other prior agreements
between the parties hereto.
16. Any notice provided for herein or concerning this Agreement must be in writing and will be
deemed sufficiently given when sent in the manner set forth in the Joint Use Agreement.
17. The waiver by Agency of the breach of any provision herein by BNSF shall in no way impair the
525366.3 Fridley Underpass Construction Agreement
4
right of Agency to enforce that provision for any subsequent breach thereof. All remedies provided
hereunder are cumulative and are in addition to all other remedies available at law or in equity.
18. Whenever in this Agreement BNSF's consent or approval is required, such consent or approval
shall not be unreasonably withheld.
19. In the event a conflict arises due to such consent or approval (or lack of either), or in the event of
any other conflict hereunder, the parties hereto agree to submit such conflict to the alternative dispute
resolution procedures set forth in the Joint Use Agreement.
20. The captions are inserted only as a matter of convenience and for reference, and in no way
define, limit or describe the scope of this Agreement nor the intent of any provision thereof.
21. All provisions contained in this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the respective successors and assigns of BNSF and Agency to the same extent as if each
such successor and assign was named a party to this Agreement.
22. Except as may be elsewhere specifically provided in this Agreement, if either party is delayed or
hindered in, or prevented from the performance required under this Agreement (except for payment of
monetary obligations) by reason of earthquakes, landslides, strikes, lockouts, labor troubles, failure of
power, riots, insurrection, war, acts of God or other reason of the like nature not the fault of the party
delayed in performance of its obligation, such party is excused from such performance for the period of
delay. The period for the performance of any such act will then be extended for the period of such delay.
23. This Agreement may be executed in multiple counterparts, each of which shall, for all purposes,
be deemed an original but which together shall constitute one and the same instrument, and the signature
pages from any counterpart may be appended to any other counterpart to assemble fully executed
documents, and counterparts of this Agreement may also be exchanged via electronic facsimile machines
and any electronic facsimile of any party's signature shall be deemed to be an original signature for all
purposes.
24. Notwithstanding anything else herein to the contrary, neither party hereto shall be construed or
held, by virtue of this Agreement, to be the agent, partner, joint venturer, or associate of the other party
hereto, it being expressly understood and agreed that the relationship between the parties hereto is and
at all times during the Term of this Agreement, shall remain that of BNSF and Agency.
25. BNSF shall have the right to transfer and assign, in whole or in part, all of its rights and
obligations under this Agreement and in the Premises only to the transferee of its rights and obligations
under the Joint Use Agreement.
26. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attomeys' fees, costs, and necessary disbursements in
addition to any relief to which it may be entitled.
[Remainder of Page Intentionally Left Blank]
525366.3 5 Fridley Underpass Construction Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and
attested by its duly qualified and authorized officials as of the day and year first above written.
BNSF RAILWAY COMPANY
By:
Printed Name:
Title:
525366.3 Fridley Underpass Construction Agreement
6
AGENCY
THE METROPOLITAN COUNCIL
By:
Printed Name: _
Title:
WITNESS:
525366.3 _ Fridley Underpass Construction Agreement
Exhibit A
Northstar to construct platform
CONS
t8/CCT TI
---------------------- *1-,---8-'-------------
See attached site plan of the tunnels to be constructed at two location the West
Tunnel & East Tunnel.
Form 0106 Rev. 06/01/05
Exhibit B
Bridge Requirements
BRIDGE DESIGN, PLANS & SPECIFICATIONS:
Bridge design calculations will be submitted to BNSF for review and approval. Design calculations will be
summarized on a cover sheet to state the design dead load, design live load and amount of impact and any secondary
loads considered. Bridge design by other than a BNSF pre- approved consultant will be subject to a third party
design check at the Agency's expense.
For BNSF bridges and culverts over waterways, BNSF will be provided with the Hydrology and Hydraulic design
criteria, calculations and site specific data, including electronic data utilized in computer simulation modeling.
Design considerations should include future land use changes that would increase the volume, velocity or sediment
transport characteristics of the streambed flows. Design shall include sediment transport calculations and erosion
control mitigation measures if necessary.
Bridge plans will be submitted to BNSF for review and approval at the 30 %, 60% and 90% stage of design. The
final set of plans must be approved by BNSF prior to letting of bids for the Project.
Prior to issuing any invitation to bid on construction of the Structure, the Agency should conduct a pre -bid meeting
where prospective Contractors have the opportunity to communicate with BNSF personnel as to the site specific
train speeds, train density, and general safety requirements for men and equipment working near live tracks. Any
invitation to bid and specifications for the Structure and the Project must be submitted to BNSF for review and
approval prior to letting of bids for the Project.
BRIDGE CONSTRUCTION:
After awarding the bid, but prior to the Contractor entering BNSF right of way, the Agency should conduct a pre -
construction meeting with BNSF personnel in attendance to reiterate the safety requirements of construction activity
adjacent to live tracks.
During construction, BNSF will require an experienced Quality Control Inspector to be present during certain
critical times of the Project, including but not limited to: driving foundation piles, erecting falsework, construction
of shoring and retaining walls, placing concrete, placing soil backfill and compaction processes. Certain
components, normally produced off site, will require a QC inspector to be present, including the production of
precast concrete components and steel fabrication. The QC inspector will provide reports to BNSF including pile
driving records, concrete compressive test records, and other such reports requested by BNSF. QC Inspection
services can be provided by the Agency subject to acceptance by BNSF. If the QC services provided are not
acceptable, BNSF will provide an independent QC Inspection service to supplement the deficiencies. The Agency
shall reimburse BNSF for all costs of supplemental QC Inspection services.
Within 90 days of the conclusion of the Project and final acceptance by BNSF, the Agency will provide BNSF with
a complete electronic set of the bridge plans labeled "As Built ". Those plans will reflect any and all deviations from
the original plans that occurred during construction. The "As Built" plans will be submitted in Micro Station *.dgn
electronic format (preferred) or AutoCAD *.dwg format. Electronic plans are to be submitted in the original format
used for CAD plan preparation and not converted to another format prior to submission. The plans must show
dimensioned locations of existing and relocated utilities.
BRIDGE MAINTENANCE:
BNSF will be responsible for maintenance of the track and ballast over the bridge and the earth embankment
approaches. The Agency will be responsible for maintenance of the structural components of the bridge, including
deck waterproofing and paint.
Form 0106 Rev. 06/01/05
For bridges over roadways, the Agency will maintain the roadways under the bridge including signs, pedestrian
walkways, fences, drains, landscaping, earth retention components, embankment slopes, erosion control, surface
drainage, paint, walkways, handrails, lighting and other improvements associated with the Project. The Agency will
be responsible to post highway vertical clearance signs and maintain such signs to reflect potential future pavement
profile elevation changes. Clearance signs, traffic control signals or other signs should not be attached to a load -
carrying member of the BNSF bridge.
For BNSF bridges over waterways, the Agency will be responsible for all aspects of channel maintenance across
BNSF's right -of -way, including toe of slope erosion control where the BNSF embankment meets the streambed.
The Agency will be responsible for debris removal that may accumulate at bridge piers as well as silt removal, local
and general scour and remediation and streambed lateral migration and streambed degradation remediation.
Fencing and other trespass controls within BNSF's right -of -way and incorporated into the Project shall be designed
and maintained by the Agency. Graffiti removal will be the responsibility of the Agency.
BRIDGE INSPECTION:
BNSF will conduct annual routine structural inspections of BNSF bridges over public roadways and waterways at
no cost to the Agency. The Agency shall provide traffic control under those bridges spanning roadways to enable
BNSF personnel or representatives to safely conduct the annual inspections. For routine annual inspections, BNSF
will give the public agency 7 days advance notice of traffic control requirements. In the event of an earthquake, fire,
flood, damage from vehicular impacts or other emergent situations, the Agency will provide traffic control in
roadways to allow immediate inspection by BNSF personnel or representatives. Traffic control will include lane
closures or other such measures to allow BNSF personnel, contractors and equipment to be safely positioned under
the superstructure:
Upon the conclusion of the BNSF inspection, the Agency will be notified of items in need of repair. If the Agency
does not complete the repairs requested by BNSF within a reasonable time period, BNSF personnel and/or
contractors will perform the repairs and invoice the Agency for the entire cost of such repairs. Regardless of the
nature or cause of such maintenance and repairs, traffic control will be provided by the Agency at no cost to BNSF
to allow safe access to the bridge.
Form 0106 Rev. 06/01/05
EXHIBIT B TO FRIDLEY MASTER AGREEMENT
UNDERPASS EASEMENT AGREEMENT
This Underpass Easement Agreement ( "Agreement "), is executed to be effective as of this
day of , 200_ ( "Effective Date, ), by and between BNSF RAILWAY COMPANY,
a Delaware corporation ( "BNSF" or "Grantor"), and THE METROPOLITAN COUNCIL, a public
corporation and political subdivision of the State of Minnesota ( "Agency" or "Grantee ").
RECITALS:
A. BNSF owns and operates a line of BNSF from Big Lake, Minnesota to Minneapolis,
Minnesota, which runs in and through the City of Fridley, County of Anoka, State of Minnesota (the
"Northstar Corridor");
B. The Commissioner of the Department of Transportation, acting on behalf of the State of
Minnesota (the "State ") and BNSF have entered into that certain Purchase and Sale Agreement dated as
of the March 7, 2007 (the "Purchase and Sale Agreement") providing for the purchase and sale of certain
commuter rail service easements (the "Easements ") in and to the Northstar Corridor, as more fully
described in the Purchase and Sale Agreement and the Joint Use Agreement (defined below), which
Easements shall be used for the Agency's operation of commuter service from Big Lake, Minnesota to
Minneapolis, Minnesota ( "Commuter Service ");
C. BNSF and Agency have entered into that certain Joint Use Agreement dated May 31,
2007 (the "Joint Use Agreement "), which governs the terms of joint use of the Northstar Corridor by the
State, BNSF and Agency and any Service Agreement as contemplated by the Joint Use Agreement (the
"Service Agreement "), which, during the term thereof, will also govern the terms of joint use of the
Northstar Corridor by the State, BNSF and Agency;
D. The terms of the Joint Use Agreement provide that Agency may construct a Commuter
Service Platform at approximately Milepost 16.0 in the City of Fridley for Commuter Service purposes (the
"Fridley Platform "), subject to the terms, conditions and limitations provided in Fridley Master Agreement
between BNSF and State dated as of May 31, 2007 (the "Fridley Master Agreement "), which provides
additional terms and conditions relating to the Fridley Platform;
E. As contemplated in the Fridley Master Agreement, BNSF and Agency entered into that
certain Underpass Construction Agreement dated as of (the "Construction
Agreement ") pursuant to which BNSF constructed the Structure (as defined in the Construction
Agreement) and pursuant to which Agency accepted the condition of the Structure as in compliance with
the terms of the Construction Agreement;
F. As contemplated in the Fridley Master Agreement, Agency has elected to enter into this
Agreement pursuant to which Agency will assume responsibility for the maintenance and upkeep of the
Structure and will have the right to use the Structure as contemplated herein in order to facilitate
Commuter Service.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained
herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Section 1 Granting of Easement.
1.1 Easement Purpose. The "Easement Purpose" shall be for the purpose of providing
pedestrian access through the Structure to facilitate the movement of passengers in Commuter Service or
otherwise. The initial Structure constructed by BNSF together with any improvements to be constructed
by Agency are referred to herein as "Improvements" and shall be constructed, located, configured and
maintained by Grantee in strict accordance with the terms of this Agreement.
515373.2 Fridley Underpass Easement
1.2 Grant. Grantor does hereby grant unto Grantee a non - exclusive easement
( "Easement ") in and to that portion of Grantor's right of way beneath grade in which the Structure
occupies (the "Premises ") for the Easement Purpose and for no other purpose. The Easement is
granted subject to any and all restrictions, covenants, easements, licenses, permits, leases and other
encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject
to all with all applicable federal, state and local laws, regulations, ordinances, restrictions, covenants and
court or administrative decisions and orders, including Environmental Laws (defined below) and zoning
laws (collectively, "Laws "),. Grantor may not make any alterations or improvements or perform any
maintenance or repair activities within the Premises except in accordance with the terms and conditions
of this Agreement.
1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be exercised by
Grantor and any other parties who may obtain written permission or authority from Grantor:
(a) to install, construct, maintain, renew, repair, replace, use, operate, change,
modify and relocate any existing pipe, power, communication, cable, or utility
lines and appurtenances and other facilities or structures of like character
(collectively, "Lines ") upon, over, under or across the Premises;
(b) to install, construct, maintain, renew, repair, replace, use, operate, change,
modify and relocate any tracks or additional facilities or structures upon, over,
under or across the Premises; and
(c) to use the Premises in any manner as the Grantor in its sole discretion deems
appropriate, provided Grantor shall not interfere with the use of the Premises by
Grantee for the Easement Purpose.
Section 2 Term of Easement. The term of the Easement, unless sooner terminated under
provisions of this Agreement, shall be perpetual.
Section 3 No Warranty of Any Conditions of the Premises. Grantee represents that the
Premises, the title thereto, and the present uses thereof have been examined by the Grantee. Except as
otherwise set forth herein, Grantee accepts the same in the condition in which they now are, without
representation or warranty, expressed or implied, in fact or by law, by the Grantor, and without recourse
to the Grantor as to the title thereto, the nature, condition or usability thereof, or the uses to which the
Premises may be put. Subject to the terms of the Underpass Agreement, the provisions of Section 7
herein or elsewhere in this agreement, by taking possession or commencing use of the Premises,
Grantee (i) acknowledges that it is relying on its own inspections of the Premises and not on any
representations from Grantor regarding the Premises; (ii) establishes conclusively that the Premises are
at such time in satisfactory condition and in conformity with this Agreement and all zoning or other
governmental requirements in all respects; and (iii) accepts the Premises in its condition as of the
Commencement Date on an "AS IS," "WHERE IS," and "WITH ALL FAULTS" basis, subject to all faults
and infirmities, whether now or hereafter existing. Grantee represents and warrants to Grantor as follows:
(i) Grantee does not intend to, and will not, use the Premises for any purpose other than as set forth in
the Overpass Agreement; (ii) Grantee has previously disclosed in writing to Grantor all special
requirements of which Grantee has knowledge (but Grantor shall have no responsibility relative to any
such special requirement), if any, which Grantee may have in connection with this intended use; and (iii)
Grantee has undertaken and has reasonably and diligently completed all appropriate investigations
regarding the suitability of the Premises for Grantee's intended use. Grantee shall comply with any
covenants, conditions or restrictions now or hereafter affecting the Premises, and acknowledges that
Grantor may place any covenants, conditions or restrictions of record affecting the Premises prior to or
during the Term, but any such covenants, conditions or restrictions shall not act to interfere with
Grantee's use of the Premises. In such event and with the above limitations, this Easement will be
subject and subordinate to all of the same without further action by either party, including, without
limitation, the execution of any further instruments. Grantee acknowledges that Grantor has given
material concessions for the acknowledgements and provisions contained herein, and that Grantor is
515373.2 Fridley Underpass Easement
2
relying on these acknowledgements and agreements and would not have entered into this Easement
without such acknowledgements and agreements by Grantee.
Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS
TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE
POSSESSION OR USE THEREOF. NO COVENANT OF QUIET TITLE IS MADE. In case of the
eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the
abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to Grantee.
Section 5 Improvements. Grantee shall take, in a timely manner, all actions necessary and proper
to cause the Improvements to at all times be in a state of good condition and repair, including such
actions as may necessary to obtain any required permits, approvals or authorizations from applicable
governmental authorities. In the event Agency fails to so maintain the Improvements and such failure
poses a risk to the safe operation of BNSF's train operations then (i) BNSF may, upon five (5) days prior
written notice except in the event of an emergency in which no prior notice shall be required, perform
such repair or maintenance work on Agency's behalf and Agency shall reimburse BNSF for all costs and
expenses incurred by BNSF in connection therewith, and (ii) BNSF may suspend Agency's right to use
and occupy the Structure until such failure is remedied by either BNSF or Agency. For purposes of this
Agreement the term "costs" and "expenses" shall have the same meaning as set forth in those certain
Track Lease Agreements between BNSF and Agency dated as of May 31, 2007. Agency must notify and
obtain prior authorization from BNSF's Manager of Public Projects before entering the surface of BNSF's
right -of -way for maintenance purposes. If the construction work hereunder is contracted, Agency must
require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C -1 as the
same may be revised from time to time. Agency will be responsible for its contractor(s) compliance with
such obligations. In the event Grantee wishes to make additional improvements within the Premises, the
following shall apply:
5.1 Agency must furnish to BNSF plans and specifications for its proposed improvements.
Four sets of said plans (reduced size 11" x 17 "), together with two copies of calculations, and two copies
of specifications in English Units, must be submitted to BNSF for approval prior to commencement of
any construction. The plans and specifications must detail construction timing and methods and any
proposed shoring or cribbing to be used over, under, or adjacent to BNSF's tracks to BNSF's Manager of
Public Agency Works for approval. The shoring or cribbing used by Agency's contractor shall comply with
BNSF Bridge Requirements (as applicable) set forth on Exhibit D attached to this Agreement and
incorporated herein. Additionally, the shoring and cribbing must comply with all applicable requirements
promulgated by state and federal agencies, departments, commissions and other legislative bodies.
BNSF will give Agency final written approval of the plans and specifications. BNSF will promptly review
such plans and specifications and upon such approval give Agency final written notice thereof. If BNSF
objects to any portion of the plans and specifications then the parties shall meet to resolve in good faith
any objections. Upon BNSF's final written approval of the plans and specifications, said plans and
specifications will become part of this Agreement and are hereby incorporated herein. Any approval of
the plans and specifications by BNSF shall in no way obligate BNSF in any manner with respect to the
finished product design and /or construction. Any approval by BNSF shall mean only that the plans and
specifications meet the subjective standards of BNSF, and such approval by BNSF shall not be deemed
to mean that the plans and specifications or construction is structurally sound and appropriate or that
such plans and specifications meet applicable ' regulations, laws, statutes or local ordinances and /or
building codes.
5.2. Agency must make any required application and obtain all required permits and
approvals for the work contemplated in the approved plans and specifications (the "Agency Work ").
5.3. Agency must provide for and maintain minimum vertical and horizontal clearances, as
required and approved by BNSF as part of the plans and specifications for the Agency Work.
5.4. Agency must make any and all arrangements for the installation or relocation of wire
lines, pipe lines and other facilities owned by private persons, companies, corporations, political
subdivisions or public utilities other than BNSF which may be necessary for the construction of the
Agency Work.
515373.2 Fridley Underpass Easement
3
5.5 Agency must construct the Agency Work substantially in accordance with the approved
plans and specifications. Agency's Work must be performed by Agency or Agency's contractor in a
manner that will not endanger or interfere with the safe and timely operations of BNSF and its facilities. All
Agency Work must be performed in a good and workmanlike manner. In order to prevent.damage to
BNSF trains and property, Agency must require its contractor(s) to notify BNSF's Roadmaster at least
thirty (30) calendar days prior to requesting a BNSF flagman in accordance with the requirements of
Exhibit C attached hereto. Additionally, Agency must require its contractor(s) to notify BNSF's Manager
of Public Agency Works thirty (30) calendar days prior to commencing work on BNSF property or near
BNSF tracks. All work performed under such contract or contracts within the limits of BNSF's right -of -way
must be performed in a good and workmanlike manner in accordance with plans and specifications
approved by BNSF; No work will be commenced within BNSF's right -of -way until each of the prime
contractors employed in connection with said work must have (i) executed and delivered to BNSF a letter
agreement in the form of Exhibit C -1 and (ii) delivered to and secured BNSF's approval of the required
insurance; To facilitate scheduling for the Agency Work, Agency shall have its contractor give BNSF's
representative (( ) Six (6) weeks advance notice of the proposed times and dates for work
windows. BNSF and Agency's contractor will establish mutually agreeable work windows for the Agency
Work. BNSF has the right at any time to revise or change the work windows, due to train operations or
service obligations. BNSF will not be responsible for any additional costs and expenses resulting from a
change in work windows. Additional costs and expenses resulting from a change in work windows shall
be accounted for in the contractor's expenses for the Agency Work. Agency agrees that its insurance
and indemnity is excess of any insurance required to be carried by any contractor.
5.6. Agency must include the following provisions in any contract with its contractor(s)
performing work on said Agency Work, and shall be responsible for ensuring compliance with such
provisions:
(a) The Contractor is placed on notice that fiber optic, communication and other cable
lines and systems (collectively, the "Lines ") owned by various telecommunications
companies may be buried on BNSF's property or right -of -way. The locations of these
Lines have been included on the plans based on information from the
telecommunications companies. ' The contractor will be responsible for contacting
BNSF's Engineering Representative ( ) and/or the telecommunications
companies and notifying them of any work that may damage these Lines or facilities
and /or interfere with their service. The contractor must also mark all Lines shown on
the plans or marked in the field in order to verify their locations. The contractor must
also use all reasonable methods when working in the BNSF right -of -way or on BNSF
property to determine if any other Lines (fiber optic, cable, communication or
otherwise) may exist.
(b) Failure to mark or identify these Lines will be sufficient cause for BNSF's engineering
representative ( ) to stop construction at no cost to the Agency or
BNSF until these items are completed.
(c) The Contractor will be responsible for the rearrangement of any facilities or Lines
determined to interfere with the construction. The Contractor must cooperate fully
with any telecommunications company(ies) in performing such rearrangements.
5.7. BNSF will have the right to stop construction work on the Agency Work if any of the
following events take place: (i) Agency (or any of its contractors) performs the Agency Work work in a
manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors),
in BNSF's opinion, prosecutes the Agency Work work in a manner which is hazardous to BNSF property,
facilities or the safe and expeditious movement of railroad traffic; or (iii) the insurance described in the
attached Exhibit C -1 is canceled during the course of the Agency Work. The work stoppage will continue
until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction
of BNSF's Division Engineer or until additional insurance has been delivered to and accepted by BNSF.
In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the
Easement, BNSF may immediately suspend the Temporary Construction License. Any reasonable work
515373.2 Fridley Underpass Easement
4
stoppage under this provision will not give rise to any liability on the part of BNSF. In the event that BNSF
desires to stop construction work on the Agency Work, BNSF agrees to immediately notify the following
individual in writing:
5.8 Agency must supervise and inspect the operations of all Agency contractors to assure
compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all
safety requirements of BNSF. If BNSF determines that proper supervision and inspection is not being
performed by Agency personnel at any time during construction of the Agency Work, BNSF has the right
to stop construction (within or adjacent to its operating right -of -way). Construction of the .Agency Work
will not proceed until Agency corrects the situation to BNSF's reasonable satisfaction. If BNSF feels the
situation is not being corrected in an expeditious manner, BNSF will immediately notify
for appropriate corrective action.
5.9. Agency must advise the appropriate BNSF Manager of Public Agency Works, in writing, of
the completion date of the Agency Work within thirty (30) days after such completion date. Additionally,
Agency must notify BNSF's Manager of Public Agency Works, in writing, of the date on which Agency
and /or its Contractor will meet with BNSF for the purpose of making final inspection of the Agency Work.
Agency must provide one set of as built plans (prepared in English Units) to BNSF, as well as one set of
computer diskettes containing as built CAD drawings of the Improvements and identifying the software
used for the CAD drawings. The "as built plans" must all information in BNSF engineering stationing and
mile post pluses. The "as built plans" must also include plan and profile, structural bridge drawings and
specifications, and drainage plans. All improvements and facilities must be shown.
5.10 Agency must reimburse BNSF in full for the actual costs of any flagging or other work
performed by BNSF in connection with any Agency Work. Agency agrees to reimburse BNSF for work of
an emergency nature caused by Agency or Agency's contractor in connection with the Agency Work
which BNSF deems is reasonably necessary for the immediate restoration of railroad operations, or for
the protection of persons or BNSF property. Such work may be performed by BNSF without prior
approval of Agency and Agency agrees to fully reimburse BNSF for all such emergency work.
Section 6 Taxes and Recording Fees. Grantee shall pay when due any taxes, assessments or
other charges (collectively, "Taxes ") levied or assessed upon the Improvements by any governmental or
quasi - governmental body or any Taxes levied or assessed against Grantor or the Premises that are
attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary
stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes
and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's
failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses
and judgments to or against Grantor, including all of Grantor's legal fees and expenses.
Section 7 Joint Use Agreement. The parties hereto agree that the provisions of Articles VI, VII
and VIII of the Joint Use Agreement are hereby incorporated herein by reference.
Section 8 Default and Termination.
A. An "Event of Default" by Agency shall have occurred hereunder if any of the following
shall occur:
(i) if Agency violates any safety provision contained in this Agreement which
Agency fails to cure within 30 days of receipt of written notice by BNSF to Agency, which period
shall be extended as may be reasonably required to effect a cure;
515373.2 Fridley Underpass Easement
5
(ii) if Agency fails to pay monetary payment hereunder when due or fails to perform
any other obligations under this Agreement and (i) as to monetary payments, such failure
continues thirty (30) days after written notice from BNSF to Agency of Agency's failure to make
such payment, or (ii) as to non - monetary obligations under this Agreement, such failure continues
thirty (30) days (or such period as may be reasonably required to effect a cure) after written
notice from BNSF to Agency of Agency's failure to perform such obligations;
if the Premises is permanently abandoned or vacated by Agency; or
(iv) if the Joint Use Agreement is terminated.
B. In the event of an Event of Default as provided above, BNSF may, at its option, (i)
terminate this Agreement by serving one (1) year's notice in writing upon Agency (except in the event of
(iv) above in which no additional notice shall be required), in which event Agency shall immediately
following the first anniversary of receipt of such notice surrender possession of the Premises to BNSF,
without prejudice to any claim for arrears of rent or breach of covenant, (ii) proceed by alternative dispute
resoliution ( "ADR ") or appropriate judicial proceedings, either at law or in equity, to enforce performance
or observance by Agency of the applicable provisions of this Agreement or to recover damages for a
breach thereof, or (iii) cure the default by making any such payment or performing any such obligation, as
applicable, at Agency's sole expense, without waiving or releasing Agency from any obligation. In the
event of termination of the Joint Use Agreement, BNSF may (i) immediately terminate this Agreement by
notice in writing upon Agency, in which event Agency shall immediately surrender possession of the
Premises to BNSF, without prejudice to any claim for arrears of rent or breach of covenant, (ii) proceed by
ADR or appropriate judicial proceedings, either at law or in equity, to enforce performance or observance
by Agency of the applicable provisions of this Agreement or to recover damages for a breach thereof, or
(iii) cure the default by making any such payment or performing any such obligation, as applicable, at
Agency's sole expense, without waiving or releasing Agency from any obligation. The foregoing rights
and remedies given to BNSF are and shall be deemed to be cumulative and the exercise of any of them
shall not be deemed to be an election excluding the exercise by BNSF at any time of a different or
inconsistent remedy. If, on account of breach or default by Agency of any of Agency's obligations
hereunder, it shall become necessary for the BNSF to employ an attorney to enforce or defend any of
BNSF's rights or remedies hereunder, then, in any such event, any reasonable amount incurred by BNSF
for attorneys' fees shall be paid by Agency. Any waiver by BNSF of any default or defaults of this
Agreement or any delay of BNSF in enforcing any remedy set forth herein shall not constitute a waiver of
the right to pursue any remedy at a later date or terminate this Agreement for any subsequent default or
defaults, nor shall any such waiver in any way affect BNSF 's ability to enforce any Section of this
Agreement. The remedies set forth in this Section shall be in addition to, and not in limitation of, any
other remedies that BNSF may have at law or in equity, and the applicable statutory period for the
enforcement of a remedy will not commence until BNSF has actual knowledge of a breach or default and
BNSF has provided to Agency written notice of such breach or default.
Section 9 Surrender of Premises.
9.1 Removal of Improvements and Restoration. Upon termination of this Agreement,
whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder,
Grantee shall, at its sole cost and expense, immediately perform the following:
(a) remove all or such portion of Grantee's Improvements and all
appurtenances thereto from the Premises, as Grantor directs at Grantor's
sole but reasonable discretion;
(b) repair and restore any damage to the Premises arising from, growing out
of, or connected with Grantee's use of the Premises;
515373.2 Fridley Underpass Easement
6
(c) remedy any unsafe conditions on the Premises created or aggravated by
Grantee; and
(d) leave the Premises in the condition which existed as of the Effective
Date.
9.2 Limited License for Entry. If this Agreement is terminated, Grantor may direct Grantee to
undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee shall
have a limited license to enter upon the Premises to the extent necessary to undertake the actions
directed by Grantor. The terms of this limited license include all of Grantee's obligations under this
Agreement. Termination will not release Grantee from any liability or obligation under this Agreement,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the
date of termination, or, if later, the date when Grantee's Improvements are removed and the Premises are
restored to the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises
to Grantor upon any termination of the Easement, all liabilities and obligations of Grantee hereunder shall
continue in effect until the Premises are surrendered.
Section 10 Liens. Grantee shall promptly pay and discharge any and all liens arising out of any
construction, alterations or repairs done, suffered or permitted to be done by Grantee on the Premises or
attributable to Taxes that are the responsibility of Grantee pursuant to Section 6. Grantor is hereby
authorized to post any notices or take any other action upon or with respect to the Premises that is or
may be permitted by Law to prevent the attachment of any such liens to any portion of the Premises;
provided, however, that failure of Grantor to take any such action shall not relieve Grantee of any
obligation or liability under this Section 10 or any other section of this Agreement.
Section 11 Notices. Any notice provided for herein or concerning this Agreement must be in writing
and will be deemed sufficiently given when sent in the manner set forth in the Joint Use Agreement.
Section 12 Assignment/Subletting. Agency may assign its interest in the Premises and this
Agreement only as permitted in the Joint Use Agreement. However, Agency may sublet all or a part of
the Premises to another governmental entity for the purpose of providing pedestrian access but no such
sublease shall affect Agency's obligations or liabilities under this Agreement or the Joint Use Agreement
with respect to the Premises.
Section 13 Recordation. It is understood and agreed that this Agreement shall not be in recordable
form and shall not be placed on public record and any such recording shall be a breach of this
Agreement. Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto
as Exhibit "B" (the "Memorandum of Easement ") subject to changes required, if any, to conform such
form to local recording requirements. The Memorandum of Easement shall be recorded in the real estate
records in the county where the Premises are located.
Section 14 Miscellaneous.
14.1 All questions concerning the interpretation or application of provisions of this Agreement
shall be decided according to the substantive Laws of the State of Minnesota without regard to conflicts of
law provisions.
14.2 In the event that Grantee consists of two or more parties, all the covenants and
agreements of Grantee herein contained shall be the joint and several covenants and agreements of such
parties. This instrument and all of the terms, covenants and provisions hereof shall inure to the benefit of
and be binding upon each of the parties hereto and their respective legal representatives, successors and
assigns and shall run with and be binding upon the Premises.
14.3 If any action at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which such party or parties may be entitled.
14.4 If any provision of this Agreement is held to be illegal, invalid or unenforceable under
515373.2 Fridley Underpass Easement
7
present or future Laws, such provision will be fully severable and this Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining
provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable
provision herein, there will be added automatically as a part of this Agreement a provision as similar in its
terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and
enforceable.
14.5 This Agreement and the agreements referenced in the recitals are the full and complete
agreement between Grantor and Grantee with respect to all matters relating to Grantee's use of the
Premises, and (except for the agreements referenced in the recitals) supersedes any and all other
agreements between the parties hereto relating to Grantee's use of the Premises as described herein.
However, nothing herein is intended to terminate any surviving obligation of Grantee or Grantee's
obligation to defend and hold Grantor harmless in any prior written agreement between the parties.
14.6 Neither termination nor expiration of this Agreement will release either party from any
liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts,
omissions or events happening prior to the date of termination or expiration.
14.7 The waiver by BNSF of the breach of any provision herein by Agency shall in no way
impair the right of BNSF to enforce that provision for any subsequent breach thereof. All remedies
provided hereunder are cumulative and are in addition to all other remedies available at law or in equity.
14.8 Whenever in this Agreement BNSF's consent or approval is required, such consent or
approval shall be in BNSF's sole but reasonable discretion.
14.9 In the event a conflict arises due to such consent or approval (or lack of either), or in the
event of any other conflict hereunder, the parties hereto agree to submit such conflict to the alternative
dispute resolution procedures set forth in the Joint Use Agreement.
14.10. The captions are inserted only as a matter of convenience and for reference, and in no
way define, limit or describe the scope of this Agreement nor the intent of any provision thereof.
14.11. All provisions contained in this Agreement shall be binding upon, inure to the benefit of,
and be enforceable by the respective successors and assigns of BNSF and Agency to the same extent as
if each such successor and assign was named a party to this Agreement.
14.12. Except as may be elsewhere specifically provided in this Agreement, if either party is
delayed or hindered in, or prevented from the performance required under this Agreement (except for
payment of monetary obligations) by reason of earthquakes, landslides, strikes, lockouts, labor troubles,
failure of power, riots, insurrection, war, acts of God or other reason of the like nature not the fault of the
party delayed in performance of its obligation, such party is excused from such performance for the
period of delay. The period for the performance of any such act will then be extended for the period of
such delay.
14.13 This Agreement may be executed in multiple counterparts, each of which shall, for all
purposes, be deemed an original. but which together shall constitute one and the same instrument, and
the signature pages from any counterpart may be appended to any other counterpart to assemble fully
executed documents, and counterparts of this Agreement may also be exchanged via electronic facsimile
machines and any electronic facsimile of any party's signature shall be deemed to be an original
signature for all purposes.
14.14. Notwithstanding anything else herein to the contrary, neither party hereto shall be
construed or held, by virtue of this Agreement, to be the agent, partner, joint venturer, or associate of the
other party hereto, it being expressly understood and agreed that the relationship between the parties
hereto is and at all times during the Term of this Agreement, shall remain that of BNSF and Agency.
14.15. BNSF shall have the right to transfer and assign, in whole or in part, all of its rights and
obligations under this Agreement and in the Premises only to the transferee of its rights and obligations
515373.2 Fridley Underpass Easement
8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and
attested by its duly qualified and authorized officials as of the day and year first above written.
BNSF RAILWAY COMPANY
By:
Printed Name:
Title:
AGENCY
METROPOLITAN COUNCIL
By:
Printed Name: _
Title:
WITNESS:
Exhibit A
s
CONSTRUCT EAST
TUNNEL SECTIONS
APPROXIMATELY 110'
C=
------------------ - - - - --
--- ----- - - - - -. - ------- -- - - - - --
���L, _ _
Material Yd Lead
........... : PULLBACK
t
MT-1 PH
MT -2
-1 --------------------------
Northstar to construct platfbrm 130 foot shoot pile wall
To protect track area for future
CONSTRUCT
U Construction of tunnel lower level
WEST TUNNEL V
0 Adjacent to the tracks
SECTIONS
T Ly . .. . ..
APPROXIMATELY 701
3N11
----------- ------------ -
— 7r--=
rr
EXHIBIT "B"
Memorandum of Easement
THIS MEMORANDUM OF EASEMENT is hereby executed this _ day of ,
20_, by and between BNSF RAILWAY COMPANY, a Delaware corporation ( "Grantor"), whose
address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and The
Metropolitan Council, a public corporation and political subdivision of the State of Minnesota ( "Grantee "),
whose address for purposes of this instrument is , which terms
"Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the
heirs, legal representatives, successors and assigns of the respective parties:
WITNESSETH:
WHEREAS, Grantor owns or controls certain real property situated in Anoka County, Minnesota
as described on Exhibit "A -1" attached hereto and incorporated herein by reference (the "Premises');
WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated
(the "Easement Agreement") which set forth, among other things, the terms of an easement granted by
Grantor to Grantee over and across the Premises (the "Easement "); and
WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the
Easement Agreement of record.
For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor
does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across
the Premises.
The term of the Easement, unless sooner terminated under provisions of the Easement
Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall
be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by
the terms of the Easement Agreement.
All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated
herein by this reference for all purposes as though written out at length herein, and both the Easement
Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or
document. This Memorandum of Easement is not intended to amend, modify, supplement, or supersede
any of the provisions of the Easement Agreement and, to the extent there may be any conflict or
inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement
Agreement shall control.
[Signature page follows]
Form 0106 Rev. 06/01/05
IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to
as of the date and year first above written.
STATE OF
COUNTY OF
GRANTOR:
BNSF RAILWAY COMPANY, a Delaware corporation
By:
Name:
Title:
GRANTEE:
The Metropolitan Council,
a public corporation and political subdivision of the State
of Minnesota
By:
Name:
Title:
This instrument was acknowledged before me on the — day of 200_, by
(name) as (title) of BNSF RAILWAY
COMPANY, a Delaware corporation.
STATE OF
COUNTY OF
Notary Public
(Seal)
My appointment expires:
This instrument was acknowledged before me on the _ day of , 200_, by
as of The Metropolitan Council,
a public corporation and political subdivision of the State of Minnesota.
Notary Public
(Seal)
By:
Name:
Title:
Form 0106 Rev. 06 /01/05
Exhibit C
EXMBIT C
CONTRACTOR REQUIREMENTS
1.01 General
1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway"
where work is over or under on or adjacent to Railway property and/or right -of -way, hereafter referred to as
"Railway Property", during the construction of the Commuter Service Platform and related improvements.
1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C -1" Agreement,
in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance
called for under Section 3 of said Exhibit "C -1 ". Questions regarding procurement of the Railroad Protective
Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214-303 -8519.
1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement
of any trains on Railway Property.
1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the
Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create a hazard
to Railway's Property, employees, and/or operations.
1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local
Governmental laws and regulations, including, but not limited to environmental laws and regulations (including but
not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil Pollution
Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and regulations. The
Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all fines or penalties
imposed or assessed by Federal, State and Local Governmental Agencies against the Railway which arise out of
Contractor's work under this Agreement.
1.01.06 The Contractor must notify the (Agency) at and Railway's Manager Public Agency Works,
telephone number L_)_at least thirty (30) calendar days before commencing any work on Railway Property.
Contractors notification to Railway, must refer to Railroad's file
1.01.07 For any falsework above any tracks or any excavations located, whichever is greater, within twenty -five
(25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 1 '/z horizontal to 1 vertical
slope beginning at eleven (11) feet from centerline of the nearest track, both measured perpendicular to center line of
track, the Contractor must furnish the Railway five sets of working drawings showing details of construction
affecting Railway Property and tracks. The working drawing must include the proposed method of installation and
removal of falsework, shoring or cribbing, not included in the Specifications and two sets of structural calculations
of any falsework, shoring or cribbing. All calculations must take into consideration railway surcharge loading and
must be designed to meet American Railway Engineering and Maintenance -of -Way Association (previously known
as American Railway Engineering Association) Coopers E -80 live loading standard. All drawings and calculations
must be stamped by a registered professional engineer licensed to practice in the state the Agency Work is located.
The Contractor must not begin work until notified by the Railway that the Specifications have been approved. The
Contractor will be required to use lifting devices such as, cranes and/or winches to place or to remove any falsework
over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the
implementation of said approved Specifications.
1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the
work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any
type of damages or for extra or additional compensation in the event his work is delayed by the Railway.
Form 0106 Rev. 06/01/05
1.02 Contractor Safety Orientation
1.02.01 No employee of the Contractor, Its subcontractors, agents or invitees may enter Railway
Property without first having completed Railway's Engineering Contractor Safety Orientation,
found on the web site www.contractororientation.com. The Contractor must ensure that each of its
employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation
through internet sessions before any work is performed on the Agency Work. Additionally, the Contractor
must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card
certifying completion of the Railway Contractor Safety Orientation before en tering Railway Property. The
Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must
renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site
or from the Railway's Representative.
1.03 Railway Requirements
1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track
ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to
railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such
repairs or replacement must be paid for by the Agency.
1.03.02 The Contractor must notify the Railway's Division Superintendent at
and provide blasting plans to the Railway for review seven (7) calendar days prior to
conducting any blasting operations adjacent to or on Railway's Property.
1.03.03 The Contractor must abide by the following temporary clearances during construction:
15' Horizontally from centerline of nearest track
21' -6" Vertically above top of rail
27' -0" Vertically above top of rail for electric wires carrying less than 750 volts
28' -0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts
30' -0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts
34' -0" Vertically above top of rail for electric wires carrying more than 20,000 volts
1.03.04 Upon completion of construction, the following clearances shall be maintained:
25' Horizontally from centerline of nearest track
23' -3 W Vertically above top of rail
1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to
the Railway and to the (Agency) and must not be undertaken until approved in writing by the
Railway, and until the (Agency) has obtained any necessary authorization from the State
Regulatory Authority for the infringement. No extra compensation will be allowed in the event the Contractor's
work is delayed pending Railway approval, and/or the State Regulatory Authority's approval.
1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing
tell -tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of
tell -tales or protective devices will be borne by the Agency.
1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract
Specifications must be submitted to the Railway by (Agency) for approval before work is
undertaken and this work must not be undertaken until approved by the Railway.
1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across
Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "Temporary
Private Crossing Agreement" from the Railway prior to moving his equipment or materials across the Railways
tracks. The temporary crossing must be gated and locked at all times when not required for use by the Contractor.
The temporary crossing for use of the Contractor will be at the expense of the Contractor.
Form 0106 Rev. 06 /01/05
1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum,
constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify
the Railway's Resource Operations Center at 1(800) 832 -5452, of any discharge, release or spills in excess of a
reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or transfer facility
as those terms are defined in the Resource Conservation and Recovery Act or any state analogue.
1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the
Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought upon said
property by said Contractor or any Subcontractor, employee or agent of Contractor or of any Subcontractor, and
must cause Railway's Property to be left in a condition acceptable to the Railway's representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan
1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and
implement a Roadway Worker Protection /On Track Safety Program and work with Railway Agency Work
Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety
portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for all
employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site through
job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan, as provided
for on the web site www contractororientation.com, which will be made available to Railway prior to
commencement of any work on Railway Property. During the performance of work, the Contractor must audit its
work activities. The Contractor must designate an on -site Agency Work Supervisor who will serve as the contact
person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and Material Safety
Datasheets (MSDS), at the job site.
1.05 Protection of Railway Facilities and Railway Flagger Services:
1.05.01 The Contractor must give Railway's Roadmaster (telephone , a minimum of thirty (30)
calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate
arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor
and it is subsequently determined by the parties hereto that such services are no longer necessary, the Contractor
must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to
abolish the position pursuant to union requirements.
1.05.02 Unless determined otherwise by Railway's Agency Work Representative, Railway flagger and protective
services and devices will be required and furnished when Contractor's work activities are located over, under and/or
within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes or similar
equipment positioned beyond 25 -feet from the track centerline could foul the track in the event of tip over or other
catastrophic occurrence, but not limited thereto for the following conditions:
1.05.02a When in the opinion of the Railway's Representative it is necessary to safeguard Railway's Property,
employees, trains, engines and facilities.
1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's
representative, track or other Railway facilities may be subject to movement or settlement.
1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds.
1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities
either due to persons, material, equipment or blasting in the vicinity.
1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or
equipment which might result in making the track impassable.
1.05.03 Flagging services will be performed by qualified Railway flaggers.
1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to
protect Railway Property and operations, if deemed necessary by the Railways Representative.
Form 0106 Rev. 06/01/05
1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8) hour basic day
1.05.03c The cost of flagger services provided by the Railway, when deemed necessary by the Railway's
representative, will be borne by the (Aeen y) . The estimated cost for one (1) flagger is
$800.00 for an eight (8) hour basic day with time and one -half or double time for overtime, rest days and holidays.
The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment
insurance, public liability and property damage insurance, health and welfare benefits, transportation, meals, lodging
and supervision. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by
appropriate Federal authorities may increase actual or estimated flagging rates. The flagging rate in effect at the time
of performance by the Contractor hereunder will be used to calculate the actual costs of flagging pursuant to this
paragraph.
1.05.03d The average train traffic on this route is freight trains per 24 -hour period at a timetable speed
MPH and passenger trains at a timetable speed of MPH.
1.06 Contractor General Safety Requirements
1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and
equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of
any track must be in compliance with FRA Roadway Worker Protection Regulations.
1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be conducted
with all personnel involved with the task and repeated when the personnel or task changes. If the task is
within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable, and include the
procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving
any equipment adjacent to or across any Railway track(s).
1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track
safety strategy approved by the Railway's Agency Work Representative. When authority is
provided, every contractor employee must know: (1) who the Railway flagger is, and how to contact the
flagger,. (2) limits of the authority, (3) the method of communication to stop and resume work, and (4)
location of the designated places of safety. Persons or equipment entering flag/work limits that were not
previously job briefed, must notify the flagger immediately, and be given a job briefing when working within
25 feet of the center line of track.
1.06.04 When Contractor employees are required to work on the Railway Property after normal
working hours or on weekends, the Railroad's representative in charge of the Agency Work must be notified.
A minimum of two employees must be present at all times.
1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under the
influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and
subsequently released to the custody of a representative of Contractor management. Future access to the Railway's
Property by that employee will be denied.
1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported immediately to
the Railway's representative in charge of the Agency Work. Any vehicle or machine which may come in contact
with track, signal equipment, or structure (bridge) and could result in a train derailment must be reported
immediately to the Railway representative in charge of the Agency Work and to the Railway's Resource Operations
Center at 1(800) 832 -5452. Local emergency numbers are to be obtained from the Railway representative in charge
of the Agency Work prior to the start of any work and must be posted at the job site.
1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly weapons
in their possession while working on Railway's Property.
1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and
ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site,
www.contractororientation.com however, a partial list of the requirements include: a) safety glasses with
Form 0106 Rev. 06/01/05
permanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes, above - the -ankle
lace -up and a defined heel; and d) high visibility retro- reflective work wear. The Railroad's representative in charge
of the Agency Work is to be contacted regarding local specifications for meeting requirements relating to hi-
visability work wear. Hearing protection, fall protection, gloves, and respirators must be worn as required by State
and Federal regulations. (NOTE — Should there be a discrelDanclr between the information contained on the
web site and the information in this paragraph the web site will govern.
1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR
EQUIPMENT CLOSER THAN 25' -0" TO THE CENTER LINE OF THE NEAREST RAILWAY TRACY—
MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET
OF ANY HIGHWAY/RAIL AT -GRADE CROSSINGS, WHERE STORAGE OF THE SAME WILL
OBSTRUCT THE TRAT SESTABLISH I�RINBEGINNING
WORK, E CONTRCTOR MUST ASTORAGEAREAWITH CONCURRENCE F
THE RAILROAD'S REPRESENTATIVE.
1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment
must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All
machinery and equipment left unattended on Railway's Property must be left inoperable and secured against
movement. (See internet Engineering Contractor Safety Orientation program for more detailed specifications)
1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water drainage.
Any work performed over water must meet all Federal, State and Local regulations.
1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary by
proper authority. For all power lines the minimum clearance between the lines and any part of the equipment or
load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV - 35
feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of 45 feet must be
maintained. A person must be designated to observe clearance of the equipment and give a timely warning for all
operations where it is difficult for an operator to maintain the desired clearance by visual means.
1.07 Excavation
1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires, or
cables, including fiber optic cable systems are present and located within the Agency Work work area. The
Contractor must determine whether excavation on Railway's Property could cause damage to buried cables resulting
in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may cause business
interruptions involving loss of revenue and profits. Before commencing excavation, the Contractor must contact
BNSF's Field Engineering Representative (_Mark Gjevre ).All underground and overhead wires
will be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line.
It is the Contractor's responsibility to notify any other companies that have underground utilities in the area
and arrange for the location of all underground utilities before excavating.
1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in
the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the
owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any
doubt about the location of underground cables or lines of any kind, no work must be performed until the exact
location has been determined. There will be no exceptions to these instructions.
1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of
depth, must be shored where there is any danger to tracks, structures or personnel.
1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected
when not being worked on. When leaving work site areas at night and over weekends, the areas must be secured
and left in a condition that will ensure that Railway employees and other personnel who may be working or passing
through the area are protected from all hazards. All excavations must be back filled as soon as possible.
1.08 Hazardous Waste, Substances and Material Reporting
Form 0106 Rev. 06 /01/05
1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material,
including but not limited to any non - containerized commodity or material, on or adjacent to Railway's Property, in
or near any surface water, swamp, wetlands or waterways, while performing any work under this Agreement,
Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800) 832 -5452, of such
discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties: and (c)
exercise due care with respect to the release, including the taking of any appropriate measure to minimize the impact
of such release.
1.09 Personal Injury Reporting
1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad
Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor,
subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone mail
if unable to contact in person) to the Railway's representative in charge of the Agency Work. The Non - Employee
Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817)
352 -7595 and to the Railway's Agency Work Representative no later than the close of shift on the date of the injury.
Form 0106 Rev. 06/01/05
NON - EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD
BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO
PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY•
1. Accident City /St
County:
(if non - Railway location)
5. Social Security #
6. Name (last, first, mi)
7. Address: Street: _
8. Date of Birth: and/or Age
n /�\ T..:..nc .
2. Date: Time:
3. Temperature: 4. Weather
City:
Gender:
(if available)
(b) Body Part:
(i.e. (a) Laceration (b) Hand)
11. Description of Accident (To include location, action, result, etc.):
12. Treatment:
? First Aid Only
? Required Medical Treatment
? Other Medical Treatment
13. Dr. Name
14. Dr. Address:
Street: City:
15. Hospital Name:
16. Hospital Address:
Street: City:
17. Diagnosis:
FAX TO
RAILWAY AT (817) 352 -7595
AND COPY TO
RAILWAY ROADMASTER FAX
St. Zip:
30. Date:
St: Zip:
St: Zip:
Form 0106 Rev. 06/01/05
EXHIBIT C -1
Agreement
Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
BNSF RAILWAY COMPANY
Attention: Manager Public Agency Works
Railway File:
Agency Agency Work:
Gentlemen:
The undersigned (hereinafter called, the "Contractor "), has entered into a contract (the "Contract ") dated
200, ( ** *Drafter's Note: insert the date of the contract between the Agency and the
Contractor here) with (Drafter's Note: insert the name of the
Agency herelfor the performance of certain work in connection with the following Agency Work
Performance of such work will necessarily require contractor to enter BNSF
RAILWAY COMPANY ( "Railway ") right of way and property ( "Railway Property"). The Contract provides that
no work will be commenced within Railway Property until the Contractor employed in connection with said work
for linsert Agency name here] (i) executes and delivers to Railway an Agreement in the form
hereof, and (ii) provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If
this Agreement is executed by a party who is not the Owner, General Partner, President or Vice President of
Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this
Agreement on behalf of Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property
and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby
agree with Railway as follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments,
awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including
Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person,
arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work
performed on or about Railway's property or right -of -way. THE LIABILITY ASSUMED BY CONTRACTOR
WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE,
DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF
RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT
THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR
GROSS NEGLIGENCE OF RAILWAY.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY
CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL
EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE
SAFETY APPLIANCE ACT OR THE BOILER INSPECTION ACT, WHENEVER SO CLAIMED.
Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle
all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or
in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner
connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to
be liable. Railway will give notice to Contractor, in writing, of the receipt or dependency of such claims and
thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being
Form 0106 Rev. 06 /01/05
brought against Railway, Railway may forward summons and complaint or other process in connection therewith to
Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify,
and save harmless Railway from and against all damages, judgments, decrees, attorney's fees, costs, and expenses
growing out of or resulting from or incident to any such claims or suits.
It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in
this Agreement survive any termination of this Agreement.
Section 2. TERM
This Agreement is effective from the date of the Contract until (i) the completion of the Agency Work set
forth herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing and due
hereunder.
Section 3. INSURANCE
Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement the
following insurance coverage:
A. Commercial General Liability insurance. This insurance must contain broad form contractual
liability with a combined single limit of a minimum of $2,000,000 each occurrence and an
aggregate limit of at least $4,000,000. Coverage must be purchased on a post 1998 ISO
occurrence form or equivalent and include coverage for, but not limit to the following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy must also contain the following endorsements, which must be indicated on the certificate of
insurance:
♦ It is agreed that any workers' compensation exclusion does not apply to Railroad
payments related to the Federal Employers Liability Act or a Railroad Wage
Continuation Program or similar programs and any payments made are deemed not to be
either payments made or obligations assumed under any Workers Compensation,
disability benefits, or unemployment compensation law or similar law.
♦ The definition of insured contract must be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
♦ Any exclusions related to the explosion, collapse and underground hazards must be
removed.
No other endorsements limiting coverage as respects obligations under this Agreement may be included on
the policy.
B. Business Automobile Insurance. This insurance must contain a combined single limit of at least
$1,000,000 per occurrence, and include coverage for, but not limited to the following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to:
Coverage B. Employers' Liability with limits of no less than:
$500,000 — Bodily Injury by disease per employee
$500,000 — Bodily Injury by disease aggregate
$500,000 — Bodily Injury by accident
Form 0106 Rev. 06/01/05
♦ Coverage C: All States Coverage
♦ If applicable, USL&H, and Voluntary
♦ A waiver of subrogation in favor of the Owners
D. Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of
at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy Must be issued on a standard ISO
form CG 00 35 10 93 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to remove any exclusion for punitive damages.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Railroad prior to performing any work or
services under this Agreement
Other Requirements:
All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and
certificates of insurance must reflect that no exclusion exists.
Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad.
In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation
against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation
endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation
against Railroad for loss of its owned or leased property or property under contractor's care, custody or control.
Contractor's insurance policies through policy endorsement, must include wording which states that the
policy is primary and non - contributing with respect to any insurance carried by Railroad. The certificate of
insurance must reflect that the above wording is included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective)
must include a severability of interest endorsement and Railroad must be named as an additional insured with
respect to work performed under this agreement. Severability of interest and naming Railroad as additional insured
must be indicated on the certificate of insurance.
Contractor is not allowed to self-insure without the prior written consent of Railroad If granted by
Railroad, any deductible, self-insured retention or other financial responsibility for claims must be covered directly
by contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the
provisions of this Agreement, be covered by contractor's insurance will be covered as if contractor elected not to
include a deductible, self - insured retention or other financial responsibility for claims.
Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of
insurance including an original signature of the authorized representative evidencing the required coverage,
endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) must
contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing
at least 30 days prior to any cancellation, non - renewal, substitution or material alteration. This cancellation
provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate
original of any required policy must be furnished. Contractor should send the certificate(s) to the following address:
BNSF RISK MANAGEMENT
2500 Lou Menk Drive AOB -1
Fort Worth, TX 76131 -2828
Fax: 817- 352 -7207
Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a
current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the
service is to be provide.
Form 0106 Rev. 06/01/05
Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance
agent(s)/broker(s), who have been instructed �n a addition to to all policy limits o ove insurance
referenced above. by �s
Agreement. Allocated Loss Expense
Not more frequently than once every five years, Railroad may reasonably modify the required insurance
coverage to reflect then- current risk management practices in the railroad industry and underwriting p a
insurance industry.
If any portion of the operation is to be subcontracted by contractor, contractor must require that the
subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional
insured, and requiring that the subcontractor release, defend and indemnify Railroad t Rpo� herein extent and under
the same terms and conditions as contractor is required to release, defend and indemnify
Failure to provide evidence as required by this section will entitle, but not require, Railroad to terminate
this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a
waiver of contractor's obligations hereunder.
The fact that insurance (including, without limitation, self - insurance) is obtained by contractor will not be
deemed to release or diminish the liability of contractor including, without limitation, liability under the indemnity
provisions of this Agreement. Damages recoverable by Railroad will not be limited by the amount of the required
insurance coverage.
For purposes of this section, Railroad means "Burlington Northern Santa Fe Corporation ", "BNSF
RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each.
Section 4. EXHIBIT "C " CONTRACTOR REQUIREMENTS
The Contractor must observe and comply with all provisions, obligations, requirements and limitations
contained in the Contract, and the Contractor Requirements set forth on Exhibit C attached to the Contract and this
Agreement, , including, but not be limited to, payment of all costs incurred for any damages to Railway roadbed,
tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees, representatives, or
agents or subcontractors on or about the construction site.
Section 5. TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated
railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a
freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service
and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from
loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train
delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement.
Railway agrees that it will not perform any act to unnecessarily cause train delay.
For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as
determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same
time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal,
coal and freight trains operate under incentive /penalty contracts between Railway and its customer(s). Under these
arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance
or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and
incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a
train delay caused by Contractor or its subcontractors.
The con, tractual relationship between Railway and its customers is proprietary and confidential. In the
event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the
Form 0106 Rev. 06/01/05
extent consistent with Railway confidentiality obligations. Damages for train delay for certain trains may be as high
as $50,000.00 per incident.
Contractor and its subcontractors must give Railway's representative ( weeks advance
notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually
agreeable work windows for the Agency Work. Railway has the right at any time to revise or change the
work windows due to train operations or service obligations. Railway will not be responsible for any
additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting
from a change in work windows shall be accounted for in Contractor's expenses for the Agency Work.
Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so
as to not cause any delays to any trains.
Kindly acknowledge receipt of this letter by signing and returning to the Railway two original
copies of this letter, which, upon execution by Railway, will constitute an Agreement between us.
(Contractor)
By:
Printed
Title:
Contact
Address:
City:
Fax:
Phone:
Email:
State:
Zip:
BNSF Railway Company
By:
Name: Name:
Manager Public Agency Works
Person: Accepted and effective this day of
2007
Form 0106 Rev. 06/01/05
EXHIBIT D
Bridge Requirements
BRIDGE DESIGN, PLANS & SPECIFICATIONS:
Bridge design calculations will be submitted to BNSF for review and approval. Design calculations will be
summarized on a cover sheet to state the design dead load, design live load and amount of impact and any secondary
loads considered. Bridge design by other than a BNSF pre- approved consultant will be subject to a third party
design check at the Agency's expense.
For railroad- bridges and culverts over waterways, BNSF will be provided with the Hydrology and Hydraulic design
criteria, calculations and site specific data, including electronic data utilized in computer simulation modeling.
Design considerations should include future land use changes that would increase the volume, velocity or sediment
transport characteristics of the streambed flows. Design shall include sediment transport calculations and erosion
control mitigation measures if necessary.
Bridge plans will be submitted to BNSF for review and approval at the 30 %, 60% and 90% stage of design. The
final set of plans must be approved by BNSF prior to letting of bids for the Agency Work.
Prior to issuing any invitation to bid on construction of the Improvements, the Agency should conduct a pre -bid
meeting where prospective Contractors have the opportunity to communicate with BNSF personnel as to the site
specific train speeds, train density, and general safety requirements for men and equipment working near live tracks.
Any invitation to bid and specifications for the Improvements and the Agency Work must be submitted to BNSF for
review and approval prior to letting of bids for the Agency Work.
BRIDGE CONSTRUCTION:
After awarding the bid, but prior to the Contractor entering BNSF right of way, the Agency should conduct a pre -
construction meeting with BNSF personnel in attendance to reiterate the safety requirements of construction activity
adjacent to live tracks.
During construction, BNSF will require an experienced Quality Control Inspector to be present during certain
critical times of the Agency Work, including but not limited to: driving foundation piles, erecting falsework,
construction of shoring and retaining walls, placing concrete, placing soil backfill and compaction processes.
Certain components, normally produced off site, will require a QC inspector to be present, including the production
of precast concrete components and steel fabrication. The QC inspector will provide reports to BNSF including pile
driving records, concrete compressive test records, and other such reports requested by BNSF. QC Inspection
services can be provided by the Agency subject to acceptance by BNSF. If the QC services provided are not
acceptable, BNSF will provide an independent QC Inspection service to supplement the deficiencies. The Agency
shall reimburse BNSF for all costs of supplemental QC Inspection services.
Within 90 days of the conclusion of the Agency Work and final acceptance by BNSF, the Agency will provide
BNSF with a complete electronic set of the bridge plans labeled "As Built". Those plans will reflect any and all
deviations from the original plans that occurred during construction. The "As Built" plans will be submitted in
Micro Station *.dgn electronic format (preferred) or AutoCAD *.dwg format. Electronic plans are to be submitted
in the original format used for CAD plan preparation and not converted to another format prior to submission. The
plans must show dimensioned locations of existing and relocated utilities.
BRIDGE MAINTENANCE:
BNSF will be responsible for maintenance of the track and ballast over the bridge and the earth embankment
approaches. The Agency will be responsible for maintenance of the structural components of the bridge, including
deck waterproofing and paint.
Form 0106 Rev. 06/01/05
For bridges over roadways, the Agency will maintain the roadways under the bridge including signs, pedestrian
walkways, fences, drains, landscaping, earth retention components, embankment slopes, erosion control, surface
drainage, paint, walkways, handrails, lighting and other improvements associated with the Agency Work. The
Agency will be responsible to post highway vertical clearance signs and maintain such signs to reflect potential
future pavement profile elevation changes. Clearance signs, traffic control signals or other signs should not be
attached to a load- carrying member of the railroad bridge.
For railroad bridges over waterways, the Agency will be responsible for all aspects of channel maintenance across
BNSF's right -of -way, including toe of slope erosion control where the railroad embankment meets the streambed.
The Agency will be responsible for debris removal that may accumulate at bridge piers as well as silt removal, local
and general scour and remediation and streambed lateral migration and streambed degradation remediation.
Fencing and other trespass controls within BNSF's right -of -way and incorporated into the Agency Work shall be
designed and maintained by the Agency. Graffiti removal will be the responsibility of the Agency.
BRIDGE INSPECTION:
BNSF will conduct annual routine structural inspections of railroad bridges over public roadways and waterways at
no cost to the Agency. The Agency shall provide traffic control under those bridges spanning roadways to enable
BNSF personnel or representatives to safely conduct the annual inspections. For routine annual inspections, BNSF
will give the public agency 7 days advance notice of traffic control requirements. In the event of an earthquake, fire,
flood, damage from vehicular impacts or other emergent situations, the Agency will provide traffic control in
roadways to allow immediate inspection by BNSF personnel or representatives. Traffic control will include lane
closures or other such measures to allow BNSF personnel, contractors and equipment to be safely positioned under
the superstructure.
Upon the conclusion of the BNSF inspection, the Agency will be notified of items in need of repair. If the Agency
does not complete the repairs requested by BNSF within a reasonable time period, BNSF personnel and/or
contractors will perform the repairs and invoice the Agency for the entire cost of such repairs. Regardless of the
nature or cause of such maintenance and repairs, traffic control will be provided by the Agency at no cost to BNSF
to allow safe access to the bridge.
Form 0106 Rev. 06/01/05
Exhibit C to Fridley Master Agreement
PLATFORM AGREEMENT
(FRIDLEY STATION)
THIS PLATFORM AGREEMENT ( "Lease ") is dated as of the day of
20_, (the "Effective
Date ") between BNSF RAILWAY COMPANY, a Delaware corporation ( "Lessor" or "BNSF ") and THE METROPOLITAN
COUNCIL, a public corporation and political subdivision of the State of Minnesota ( "Lessee ").
RECITALS
A. Lessor is in the railroad transportation business and owns or controls a system of rail tracks ( "Lessor's
Track(s)") and various real properties associated therewith, including certain Premises as described below which Lessee
desires to lease from Lessor;
B. Lessor has agreed to lease to Lessee the Premises, subject to the terms, conditions and limitations
provided herein;
C. The Commissioner of the Department of Transportation, acting on behalf of the State of Minnesota (the
"State "), and Lessor have entered into that certain Purchase and Sale Agreement dated as of the March 7, 2007 (the
"Purchase and Sale Agreement ") providing for the purchase and sale of certain commuter rail service easements (the
"Easements ") in and to the main rail lines a portion of which are adjacent to the Premises (the "Northstar Corridor"), as
more fully described in the Purchase and Sale Agreement and the Joint Use Agreement (defined below); and
D. Lessor and Lessee have entered into that certain Joint Use Agreement dated May 31, 2007 (the "Joint
Use Agreement"), which governs the terms of joint use of the Northstar Corridor by the State, Lessor and Lessee and
any Service Agreement as contemplated by the Joint Use Agreement (the "Service Agreement "), which, during the term
thereof, will also govern the terms of joint use of the Northstar Corridor by the State, Lessor and Lessee.
E. Lessor and the State have entered into that certain Fridley Master Agreement dated as of May 31, 2007
setting forth additional terms and conditions concerning the execution of this Lease by Lessor and Lessee and the
construction maintenance and operation of the Tunnel, as defined therein. The applicable conditions set forth in the
Fridley Master Agreement for entering into this Lease have been satisfied.
AGREEMENTS
In consideration of the mutual covenants herein, Lessor and Lessee hereby agree as follows:
Section 1. Premises and Term.
A. Lessor leases to Lessee and Lessee rents from Lessor, subject to the covenants, agreements, terms,
ly
provisions and conditions of this Lease, for the Term (as defined below), that certain parcel of real property , e lof
described in Exhibit A attached hereto and made a part hereof, situated in the City of Fridley, County of Anoka, State
Minnesota, along Line Segment 25, Staples Subdivision, Mile Post 16.0 and constituting the shaded area shown on
Exhibit A ( "Premises ").
B. Lessee leases the Premises from Lessor for a term ( "Term ") beginning on the date hereof
( "Commencement Date ") and continuing thereafter until May 31, 2107 or until this Lease shall be terminated earlier
pursuant to the terms herein ("Termination Date "); provided, however, that in the event of (i) an earlier termination of the
Easements for any reason, whether by expiration of the term stated therein or the exercise of any early termination right
or remedy by either party thereunder or (ii) Lessee failing to acquire all the Easements contemplated in the Purchase and
Sale Agreement (except in the event of Lessor failing to perform its obligations thereunder), Lessor, at its sole option, may
either (i) terminate this Lease simultaneously with the termination of such Joint Use Agreement notwithstanding anything
herein to the contrary, or (ii) convert the Term of this Lease to an annual tenancy which will be cancelable by either party
upon thirty (30) days prior notice.
C. Each consecutive twelve -month period during the Term, beginning with the Commencement Date of this
Lease, is herein called a "Lease Year."
BNSF - FRIDLEY Definite Term Lease — Land 1
Form 401; Rev. 04/26!05
MEBB: 523141v4
D. This Lease shall automatically renew for one additional term of one hundred t 100) years. Master Agreement
( ) Ye
automatic renewal, this Lease shall automatically renew for successive twenty rs. After such
herein referred to as a "Renewal Term" until either a ty ( 20 )Year terms (each of such renewal is
party notifies the other party in writing no less than five (5) years prior
to the expiration of the then current term that it does not wish to further renew the term of this Lease Agreement (a
"Termination Notice "). Each Renewal Term shall commence immediately upon the expiration of the initial stated term
described in Section 1(b) above and each subsequent Renewal Term, as applicable. All of the terms and conditions
contained in this Lease shall be applicable and shall continue in full force and effect during a Renewal Term. In the event
that a Termination Notice is given by Lessor to Lessee, as set forth above and there exists no uncured Event of Default
and the Joint Use Agreement is still in effect, (i) Lessor and Lessee shall negotiate in good faith to agree upon a location
for replacement Premises to replace the existing Premises; and (ii) Lessor and Lessee agree negotiate in good faith on an
amendment to or replacement of this Lease for the replacement Premises, including Lessor approval of Lessee
improvements to be made to the replacement Premises. In such an event, the Termination Date shall be effective on the
earlier of (x) one year following satisfaction of the foregoing requirements (i) and (ii) or (y) that date on which the required
improvements to the replacement Premises are completed by Lessee to enable regular Lessee operations thereon, or (z)
the expiration of the then current Term.
Section 2. Early Termination.
A. At any time after May 31, 2057, if Lessor shall require the Premises for railroad purposes or activities and
the Relocation Requirements (as set forth below) have been met prior to such termination, Lessor may, in its sole
discretion at any time during the Term, terminate this Lease prior to the expiration of the then current term upon written
notice ( "Termination Notice ") to Lessee of not less than five (5) years. The date of such termination (which must be at
least five (5) years following the date of the Termination Notice is hereinafter referred to as the "Early Termination Date".
In case of such early termination, Lessor shall purchase from Lessee all Lessee Improvements (as defined in Section
9(B)), (excluding, however, equipment or moveable fixtures or any of the contents of any Lessee Improvement which
Lessee desires to remove (the "Removables "), and shall, at Lessee's request, acquire all of Lessee's adjacent real
property and improvements at the cost set forth below (the "Station Purchase Price "). In the event that Lessor shall
elect to terminate this Lease, Lessee shall remove at its expense all Removables on or prior to the Early Termination
Date, and on the Early Termination Date shall deliver to Lessor a Bill of Sale or similar conveyance instrument ( "Bill of
Sale ") in form reasonably acceptable to Lessor conveying all of the remaining Lessee Improvements to Lessor. In the
event of such an early termination, Lessor shall pay to Lessee the then fair market value of all of Lessee's real property,
station, park and ride facilities, and related improvements, which are adjacent to the Premises. The "fair market value"
shall be agreed to by the parties, and if the parties fail to agree, the same shall be determined by three disinterested
appraisers selected in the manner set forth below, and the value agreed upon by any two of said appraisers shall be paid
by Lessor, as Lessee's sole compensation and remedy for the early termination of this Lease. The party desiring the
appraisal shall choose one appraiser after which the other shall have twenty (20) days in which to choose an appraiser.
Should a second appraiser not be chosen within the said twenty (20) days, the party naming the first appraiser shall
choose the second appraiser. The two so chosen shall select a third appraiser within twenty, (20) days, and upon failure
to do so, the selection, on application of either party, may be made by any district court judge of the state in which the
Premises is located. The two or three appraisers, as the case may be, shall reach a decision within forty -five (45) days of
the appointment of the last appraiser. The decision of any such two appraisers shall be binding upon the parties.
"Relocation Requirements ", for the purposes of this Lease, shall mean (i) Lessor and Lessee have agreed upon a
location for the replacement Premises; (ii) Lessor and Lessee have agreed to an amendment to or replacement of this
Lease for the replacement Premises, including Lessor approval of Lessee improvements to be made to the replacement
Premises; and (iii) Lessor has paid the fair market value, as set forth herein. A relocation of the track adjacent to the
Premises as permitted pursuant to Section 11.C. that does not materially reduce the level of utility of the Premises as a
commuter station platform shall not be subject to the terms of this Section 2.A even if such relocation reduces the area of
the Premises, provided, however, that in any such event the cost of relocating or modifying Lessee's improvements shall
be paid by BNSF.
B. Lessee may terminate this Lease at any time during the Term or any Renewal Term by written notice of
such intent to Lessor not less than one hundred and eighty (180) days prior to the date Lessee desires to terminate the
Lease and vacate the Premises. Lessee shall surrender the Premises at the end of such period in the condition required
hereunder.
Section 3. Use and Compliance.
A. Lessee may use the Premises for the sole and exclusive purpose of constructing, maintaining, and
operating platforms, parking areas and related improvements for commuter passenger stations as part of providing
BNSF - FRIDLEY Definite Term Lease — Land 2 Form 401; Rev. 04126/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
Commuter Service, as defined s the Joint gto Lessor's reasonable quirts regarding etheuuse without the
of the
written consent of Lessor. Lessee shall respond
Premises. The parties hereto agree that prt side of the Northstar r the Corridors At include
the time Le seef provides�to Lessor the
for access to parking facilities on the either
Commencement Notice, the parties hereto shall execute the Underpass Agreement attached hereto as Exhibit E.
B. Lessee shall comply with all Laws applicable to Lessee, the Premises, this Lease and Lessee's activities
and obligations hereunder, and shall have the sole responsibility for costs, fees, or expenses associeedSw with such h
compliance. As used herein, the term "Laws" shall mean any and all statutes, laws, ordinances, ,
regulations or any order, decision, injunction, judgment, award or decree of any public body or authority having jurisdiction
over Lessee, the Premises, this Lease, and /or Lessee's obligations under this Lease, and shall include all Environmental
Laws (as defined in Section 5(A)).
C. If any governmental license or permit is required or desirable for the proper and lawful conduct of
Lessee's business or other activity in or on the Premises, or if the failure to secure such a license or permit might in any
way affect Lessor, then Lessee, at Lessee's expense, shall procure and thereafter maintain such license or permit and
submit the same to inspection by Lessor. Lessee, at Lessee's expense, shall at all times comply with the requirements of
each such license or permit.
Section 4. Rent.
A. Lessee shall pay as rental for the Premises, in advance, on the date of execution of this Lease, and
thereafter within thirty (30) days of invoicing by Lessor to Lessee, for each new term, an amount equal to One Hundred
and 00/100 Dollars ($100.00) for the Term ( "Base Rent "). Either party hereto may assign any receivables due it under this
Lease; provided, however, such assignments shall not relieve the assignor of any of its rights or obligations under this
Lease. All rent and other monetary payments under this Lease from Lessee to Lessor shall be delivered solely to the
following address:
Staubach — Attomey -in -Fact for BNSF
P.O. Box 847574
Dallas, Texas 75284 -7574
Lessor shall have the right to designate at any time and from time to time a different address for delivery of such
payments by written notice to Lessee pursuant to the notice provisions of Section 37 below. No rent or other payment
sent to any other address shall be deemed received by Lessor unless and until Lessor has actually posted such payment
as received on the account of Lessee, and Lessee shall be subject to all default provisions hereunder, late fees and other
consequences as a result thereof in the same manner as if Lessee had failed or delayed in making any payment.
B. Lessee acknowledges that Lessor utilizes the rental collection system involving direct deposit of monies
received through a financial institution selected by Lessor, which precludes Lessor's ability to exercise rejection of a rental
payment before Lessee's check is cashed. Lessee agrees that as a condition of Lessor granting this Lease Lessee
hereby waives any rights it may have under law to force continuation of this Lease due to Lessor having accepted and
cashed Lessee's rental remittance. Lessor shall have the option of rejecting Lessee's payment by refunding to Lessee the
rental amount paid by Lessee, adjusted as set forth in this Lease, and enforcing the termination provisions of this Lease.
C. Lessee shall pay the Base Rent and all additional amounts due pursuant to Section 10 as and when the
same become due and payable upon invoice, without set -off, or deduction. Lessee's obligation to pay Base Rent and all
amounts due under this Lease is an independent covenant and no act or circumstance, regardless of whether such act or
circumstance constitutes a breach under this Lease by Lessor, shall release Lessee of its obligation to pay Base Rent and
all amounts due as required by this Lease.
Section 5. Environmental.
A. Lessee's use of the Premises shall strictly comply with all federal, state and local environmental laws and
regulations, including, but not limited to, Environmental Laws as that term is defined in the Joint Use Agreement, the
definition of which is incorporated herein.
B. Lessee shall give Lessor immediate notice to Lessor's Resource Operations Center at (800) 832 -5452 of
any release of Hazardous Materials on or from the Premises and to Lessor's Manager Environmental Leases at (785)
BNSF - FRIDLEY Definite Term Lease — Land 3
Form 401; Rev. 04/26!05
MEBB: 523141v4
inspection or inquiry b EzWbit C to Fridley Master Agreement
435 -2386 for any violation of Environmental Laws, or ins
P q ry y governmental authorities charged with
enforcing Environmental Laws with respect to Lessee's use of the Premises. Lessee shall use its best efforts to promptly
respond to any release on or from the Premises. Lessee also shall give Lessor's Manager Environmental Leases
immediate notice of all measures undertaken on behalf of Lessee to investigate, remediate, respond to or otherwise cure
such release or violation and shall provide to Lessor's Manager Environmental Leases copies of all reports and/or data
regarding any investigations or remediations of the Premises.
C. In the event of any Environmental Loss or Damage (as defined in the Joint Use Agreement) to the
Premises which is part of the Northstar Corridor, occurring prior to or during, the term of this Lease, such Environmental
Loss or Damage shall be handled by the parties pursuant to the terms of the Joint Use Agreement. To the extent not part
of the Northstar Corridor, (i) Lessee shall bear all Environmental Loss or Damage, except to the extent caused by,
contributed to, exacerbated by, arising or resulting from Lessor's past, present or future activities on or about the
Premises, (ii) Lessor shall bear all Environmental Loss or Damage to the extent caused by, contributed to, exacerbated
by, arising or resulting from Lessor's past, present or future use of the Premises, and (iii) Lessee shall take any Cleanup
Actions (as defined in the Joint Use Agreement) required to be done outside the Northstar Corridor but within the
Premises in accordance with applicable law and subject to the cost allocation as provided herein. To the extent the
Cleanup Actions performed by Northstar as required above are subject to reimbursement hereunder by BNSF, Northstar
shall conduct the Cleanup Actions in accordance with all applicable Environmental Laws and shall endeavor to give BNSF
reasonable notice and opportunity to comment to the extent practicable under the circumstances. BNSF's obligation to
reimburse Northstar is subject to reasonableness in the exercise of the Cleanup Actions in accordance with customary
environmental standards of engineering and to the necessity or advisability of the Cleanup Actions, provided that any
Cleanup Actions mandated or directed in writing by any governmental agency at the state, federal or local level with
regulatory responsibilities for environmental issues shall be deemed reasonable and necessary as between the Parties for
purposes of this Lease and provided also that Northstar shall be granted discretion to implement Cleanup Actions in a
manner necessary to eliminate or minimize interference with commuter operations even if the result is to increase costs if
there are no reasonably available alternative methods. BNSF may have representatives on the Premises at the scene of
any release of Hazardous Materials for which BNSF is responsible, in whole or in part, under this Lease. Nothing in this
Lease shall prevent BNSF or Northstar from maintaining or pursuing legal rights or defenses in any administrative
proceedings, orders or actions with third parties, including regulatory agencies, in proceedings, orders or appeals
concerning any Cleanup Actions. The cost for the activities described in this Section shall be borne in accordance with
the provisions of this Section. To the extent of an express conflict between this Section of this Lease Agreement and the
Joint Use Agreement (or Service Agreement, as applicable), this Section of this. Lease Agreement shall control.
D. Lessee shall promptly report to Lessor in writing any conditions or activities upon the Premises which
create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury
to persons or property arising out of such conditions or activities; provided, however, that Lessee's reporting to Lessor
shall not relieve Lessee of any obligation whatsoever imposed on it by this Lease. Lessee shall promptly respond to
Lessor's request for information regarding said conditions or activities.
E. Lessee agrees that it shall not use Hazardous Materials on the Premises except as stated below and in
full compliance with law. Lessee expects to use on the Premises the following Hazardous Materials: routine cleaning
materials and other materials incidental to Commuter Service, and to store on the Premises such Hazardous Materials (as
defined in Section 5(F) below); provided, however, that Lessee may only use and store the listed Hazardous Materials in
such amounts as are necessary and customary in Lessee's industry for the permitted uses hereunder ( "Permitted
Substances "). All such Permitted Substances shall be placed, used, and stored in strict accordance with all
Environmental Laws. Use or storage by Lessee on the Premises of any Hazardous Materials not disclosed in this
Section 5(E) is a breach of this Lease.
F. For purposes of this Section, "Hazardous Materials" shall be defined as the same term is defined in the
Joint Use Agreement.
G. Within one (1) year prior to termination of this Lease or at other times during the term of this Lease with
good cause, as determined in Lessor's reasonable discretion, Lessor may, at its option, require Lessee to conduct an
environmental audit of the Premises through an environmental consulting engineer acceptable to Lessor, at Lessee's sole
cost and expense, to determine if any noncompliance or environmental damage to the Premises has occurred during
Lessee's occupancy thereof. The audit shall be conducted to Lessor's satisfaction and a copy of the audit report shall
promptly be provided to Lessor for its review. Lessee shall pay all expenses for any remedial action that may be required
as a result of said audit to correct any noncompliance or environmental damage caused by Lessee, and all necessary
work shall be performed by Lessee prior to termination of this Lease, provided, however, that, as to the portion of the
BNSF - FRIDLEY Definite Term Lease — Land 4 Form 401; Rev. 04/26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
Premises within the Northstar Corridor or related to a train operating within the Northstar Corridor, such corrections and
expenses shall be handled in accordance with the Joint Use Agreement.
Section 6. Access to Ad"acent Property by Lessee.
If access to and from the Premises can be accomplished only through use of Lessor's property adjacent to the
Premises, such use is granted for ingress and egress only and on a non - exclusive basis, subject to such restrictions and
conditions as Lessor may reasonably impose by notice to Lessee. Lessor shall have the right to designate the location or
route to be used. Lessee understands and agrees that all of the terms and obligations under this Lease applicable to
Lessee shall also be applicable to Lessee with respect to Lessee's use of any property adjacent to the Premises which
Lessee may use just as though the property has been specifically described as part of the Premises, including, without
limitation, the indemnity provisions of Section 14. Notwithstanding anything to the contrary herein, this Section 6 shall
not grant Lessee any right to cross any of Lessor's Tracks. Any such crossing rights may only be granted by a separate
written agreement between Lessor and Lessee.
Section 7. Access to Premises by Lessor.
A. Lessor and its contractors, agents and other designated third parties may at all reasonable times, with
reasonable advance notice, and at any time in case of emergency, in such manner as to not unreasonably interfere with
Lessee's use of the Premises as allowed hereunder, (i) enter the Premises for inspection of the Premises or to protect the
Lessor's interest in the Premises or to protect from damage any property adjoining the Premises, (ii) enter the Premises to
construct, maintain, and operate trackage, fences,. pipelines, communication facilities, fiber optic lines, wireless towers,
telephone, power or other transmission lines, or appurtenances or facilities of like character, upon, over, across, or
beneath the Premises, or (iii) take all required materials and equipment onto the Premises, and perform all required work
therein, for the purpose of making alterations, repairs, or additions to the Premises as Lessor may elect if Lessee defaults
in its obligation to do so, without payment of any sum for any damage, except that which may be caused by Lessors
gross negligence or willful acts, and all such entries and activities shall be without any rebate of rent to Lessee for any
loss of occupancy of the Premises, or damage, injury or inconvenience thereby caused, except as otherwise provided
herein.
B. In an emergency, Lessor will be entitled to use any and all means that Lessor may deem proper to open
doors, gates, and other entrances to obtain entry to the Premises. Any entry to the Premises by Lessor as described in
this Section 7 shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into, or a
detainer of, the Premises, or any eviction of Lessee from the Premises, and any damages caused on account thereof will
be paid by Lessee.
Section 8. Warranties.
LESSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND LESSEE IN
THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. This
Lease is made subject to all outstanding rights or interests of others; provided however, that subject to matters of record,
Lessor represents and warrants to Lessee that is has no knowledge of rights of any third parties in and to the Premises
which will materially adversely impact Lessee's intended use of the Premises. For purposes of the foregoing sentence,
Lessee's knowledge is defined to mean the knowledge of David P. Schneider, General Director — Real Estate for BNSF.
In case of eviction of Lessee by anyone other than Lessor, or anyone owning or claiming title to or any interest in the
Premises, Lessor shall not be liable to Lessee for damage of any kind (including any loss of ownership right to Lessee's
Improvements) or to refund any rent paid hereunder, except to return the unearned portion of any rent paid in advance.
Section 9. Premises Condition: Lessee Improvements.
A. Lessee represents that the Premises, the title thereto, any subsurface conditions thereof, and the present
uses thereof have been examined by the Lessee. Except as otherwise set forth herein, Lessee accepts the same in the
condition in which they now are, without representation or warranty, expressed or implied, in fact or by law, by the Lessor,
and without recourse to the Lessor as to the title thereto, the nature, condition or usability thereof, or the uses to which the
Premises may be put. Subject to Section 5 hereof, by taking possession or commencing use of the Premises, Lessee (1)
acknowledges that it is relying on its own inspections of the Premises and not on any representations from Lessor
regarding the Premises; (ii) establishes conclusively that the Premises are at such time in satisfactory condition and in
conformity with this Lease and all zoning or other governmental requirements in all respects; and (iii) accepts the
Premises in its condition as of the Commencement Date on an "AS IS," "WHERE IS," and "WITH ALL FAULTS" basis,
BNSF - FRIDLEY Definite Tenn Lease — Land 5 Form 401; Rev. 04/26/05
MEBB:52 MUM
subject to all faults and infirmities, whether now or hereafter existing. Nothing contained bin this Section Master affect the
commencement of the Term or the obligation of Lessee to pay rent as provided above. Lessee represents and warrant
to Lessor as follows: (i) Lessee does not intend to, and will not, use the Premises for any purpose other than as set forth
in Section 3; (ii) Lessee has previously disclosed in writing to Lessor all special requirements of which Lessee has
knowledge (but Lessor shall have no responsibility relative to any such special requirement), if any, which Lessee may
have in connection with this intended use; and (iii) Lessee has undertaken and has reasonably and diligently completed
all appropriate investigations regarding the suitability of the Premises for Lessee's intended use. Lessee shall comply
with any covenant, conditions or restrictions now or hereafter affecting the Premises, and acknowledges that Lessor may
place any covenants, conditions or restrictions of record affecting the Premises prior to or during the Term, but any such
covenants, conditions or restrictions shall not act to materially interfere with Lessee's use of the Premises. In such event
and with the above limitations, this Lease will be subject and subordinate to all of the same without further action by either
party, including, without limitation, the execution of any further instruments. Lessee acknowledges that Lessor has given
material concessions for the acknowledgements and provisions contained in this Section 9, and that Lessor is relying on
these acknowledgement and agreements and would not have entered into this Lease without such acknowledgements
and agreements by Lessee.
B. The parties hereto acknowledge that Lessee intends to construct and install the improvements to the Premises
( "Lessee Improvements ") which are necessary for Lessee's use of the Premises in substantially the form shown on the
required detail attached hereto as Exhibit D ( "Required Detail "). Lessor has previously approved the Required Detail
and agrees to allow such Lessee Improvements. Such approval of the Required Detail or any changes thereto by BNSF
shall in no way obligate BNSF in any manner with respect to the finished product design and /or construction or modify any
provisions of the Joint Use Agreement or any Service Agreement. Such approval by BNSF shall mean only that the plans
appear to meet the subjective requirements of BNSF with respect to impact to its operations, and such approval by
BNSF shall not be deemed to mean that the Required Detail for construction are structurally sound and appropriate or that
such Required Detail meet applicable regulations, laws, statutes or local ordinances and /or building codes. Lessee
agrees that the general contractor must construct the Lessee Improvements in compliance with the General Conditions
set forth in Exhibit C, and shall, prior to beginning construction, execute and deliver the Contractor Right of Entry
attached as Exhibit C -1 -A for work done during the Pre - Mobilization Period (as defined below) and Exhibit C -1 -13 for
work done during the Active Period (as defined below). All Lessee Improvements shall be constructed and installed in
accordance with the terms and conditions of Exhibit B attached to the Lease and all applicable terms and conditions of
the Lease regarding alterations and improvements. Lessee shall not construct any other material alteration or
improvement to the Premises without Lessor's prior written consent, which consent shall not be unreasonably withheld,
delayed or conditioned. The Lessee Improvement constructed pursuant to the above provisions shall be owned by
Lessee during the Term and removed from the Premises or surrendered to the Lessor pursuant to Section 2(13) above or
Section 21 below, as applicable, upon termination of this Lease.
Section 10. Taxes and Utilities.
In addition to Base Rent, Lessee shall pay all taxes, utilities, and other charges of every kind and character,
whether foreseen or unforeseen, ordinary or extraordinary, which are attributable to Lessee's use and occupancy of the
Premises during to the Term of this Lease and may become due or levied against the Premises, against Lessee, against
the business conducted on the Premises or against the Lessee Improvements placed thereon during the Term hereof,
even though such taxes, utilities or other charges may not become due and payable until after termination of this Lease
provided; however, that Lessee shall only be responsible for the payment of property taxes levied against the Premises to
the extent such taxes are separately assessed by the applicable taxing authority as a result of this Lease. Lessee agrees
that Lessor shall not be required to furnish to Lessee any utility or other services. Should the Premises be subject to any
special assessments for public improvements due to Lessee's use or improvements to the Premises, such Special
Assessments shall be paid to the assessing authority by Lessee, which assessment may be paid, in Lessee's sole
option, over the longest period permitted by the assessing authority.
Section 11. Track Clearance.
A. Lessee shall not place, permit to be placed, or allow to remain, any permanent or temporary material,
structure, pole, or other obstruction within (i) 8Y2 feet laterally from the centerline of any of Lessor's Tracks on or about the
Premises (nine and one -half (9 -1/2) feet on either side of the centerline of any of Lessor's Tracks which are curved) or (ii)
24 feet vertically from the top of the rail of any of Lessor's Tracks on or about the Premises ( "Minimal Clearances ");
provided that if any law, statute, regulation, ordinance, order, covenant or restriction ( "Legal Requirement ") requires
greater clearances than those provided for in this Section 11, then Lessee shall strictly comply with such Legal
Requirement. However, notwithstanding the foregoing, vertical or lateral clearances which are less than the Minimal
BNSF - FRIDLEY Definite Term Lease — Land g Form 401; Rev. 04/26/05
MEBB: 523141v4
E%bibit C to Fridley Master Agreement
Clearances but are in compliance with Legal Requirements will not be a violation of this Section 11, so long as Lessee
strictly complies with the terms of any such Legal Requirement and, if requested by BNSF, posts signs on the Premises
clearly noting the existence of such reduced clearance.
B. Lessor's operation over any Lessor's Track on or about the Premises with knowledge of an unauthorized
reduced clearance will not be a waiver of the covenants of Lessee contained in this Section 11 or of Lessor's right to
recover for and be indemnified and defended against such damages to property, and injury to or death of persons, that
may result therefrom.
C. Lessor warrants that, during the term of this Lease, it shall not relocate the Lessor's track within the Northstar
Corridor adjacent to the Premises, which is used by Lessee for Commuter Service, in a manner that would materially
reduce Lessee's level of utility of the Premises, without the prior consent of Lessee, which will not be unreasonably
withheld and which may be conditioned on an acceptable relocation of the Premises and amendment of this Lease.
Notwithstanding the foregoing, prior to the Commencement Date, Lessor may relocate Lessor's track to accommodate
inter -track fencing contemplated in the Joint Use Agreement. BNSF shall have no liability or obligation with respect to
modifications to the Premises or Improvements thereon in connection with such track relocation.
Section 12. Repairs: Maintenance.
A. Lessee shall, at its sole expense, take good care of the Premises (including all Lessee Improvements)
and shall not do or suffer any waste with respect thereto and Lessee shall promptly make all necessary or desirable
Repairs to the Premises. The term "Repairs" means all reasonable repair and maintenance necessary to keep the
Premises (including all Lessee Improvements) in good condition and includes, without limitation, replacements, restoration
and renewals when necessary. Lessee shall keep and maintain any paved areas, sidewalks, curbs, landscaping and
lawn areas in a clean and orderly condition, and free of accumulation of dirt and rubbish.
B. Lessor shall not have any liability or obligation to furnish or pay for any services or facilities of whatsoever
nature or to make any Repairs or alterations of whatsoever nature in or to the Premises, including but not limited to
structural repairs, or to maintain the Premises in any manner. Lessee acknowledges that Lessor shall have no
responsibility for management of the Premises.
Section 13. Safe • Dangerous and Hazardous Conditions.
It is understood by Lessee that the Premises may be in dangerous proximity to railroad tracks, including Lessor's
Tracks, and that persons and property, whether real or personal, on the Premises will be in danger of injury, death or
destruction incident to the operation of the railroad, including, without limitation, the risk of derailment, fire, or inadequate
clearance (including sight clearance or vision obstruction problems at grade crossings on or adjacent to the Premises),
and Lessee accepts this Lease subject to such dangers, and acknowledges that its indemnification obligations hereunder
extend to and include all such risks.
Section 14. Indemnity.
A. THE PARTIES AGREE THAT THE ACTIVITIES CONDUCTED ON THE PREMISES IS INCLUDED IN
THE DEFINITION OF "COMMUTER SERVICE" (AS DEFINED IN THE JOINT USE AGREEMENT) AND THAT THE
JOINT USE AGREEMENT THEREFORE APPLIES TO THE PREMISES FOR INDEMNIFICATION PURPOSES
DURING THE PERIOD BEGINNING ON THE EARLIER OF (i) THE DAY ON WHICH MOBILIZATION TRAIN
MOVEMENTS BEGIN OR (ii) THE START DATE (AS THOSE TERMS ARE DEFINED IN THE JOINT USE
AGREEMENT) UNTIL THE TERMINATION OF THIS LEASE (THE "ACTIVE PERIOD "). DURING THE ACTIVE
PERIOD, THE JOINT USE AGREEMENT SHALL GOVERN ALLOCATION OF LIABILITY AND INDEMNIFICATION BY
THE PARTIES HEREUNDER. FOR THE PERIOD FROM THE COMMENCEMENT DATE UNTIL THE DAY PRIOR TO
THE EARLIER OF (1) THE DAY ON WHICH MOBILIZATION TRAIN MOVEMENTS BEGIN OR (ii) THE START DATE
(THE "PRE- MOBILIZATION PERIOD ")TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE SHALL
RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE BNSF PARTIES, AS DEFINED IN THE JOINT USE R DAMAGE
AGREEMENT "INDEMNITEES) FOR, FROM AND AGAINST ANY AND ALL LOSS AS DEFINED IN (COLLECTIVELY THE JOINT SSE AGREEMENT) "
GR EM NT),DI DIRECTLY OR INDIRECTLY ARISING OUT OF, RESUL TING FROM
OR RELATED TO (IN WHOLE OR IN PART):
(i) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LEASE;
BNSF - FRIDLEY Definite Term Lease — Land 7 Form 401; Rev. 04/26/05
MEBB: 523141v4
LESSEE'S OCCUPATION AND USE OF THE PREMISES; OR Exhibit C to Fridley Master Agreement
(iii) ANY ACT OR OMISSION OF LESSEE OR LESSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES,
OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR
ANYONE THEY CONTROL OR EXERCISE CONTROL OVER,
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE
OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LESSEE'S OBLIGATION TO
INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED
BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT'OF AN INDEMNITEE.
THE PARTIES HERETO AGREE THAT LESSEE'S LIABILITY PURSUANT TO THIS SECTION 14 AND UNDER ALL
OTHER PLATFORM LEASES, TRACK LEASES OR AGREEMENTS, UNDERPASS OR OVERPASS AGREEMENTS
OR EASEMENTS FOR MATTERS ARISING DURING THE PRE - MOBILIZATION PERIOD SHALL NOT, IN ANY
EVENT, EXCEED THE SUM OF $25,000,000.00 (AND THAT PAYMENTS MADE BY ANY INSURERS FOR POLICIES
OBTAINED BY LESSEE COUNT TOWARD THIS CAP) BUT THAT SUCH CAP SHALL NOT LIMIT IN ANY RESPECT
THE OBLIGATION OF ANY INSURANCE OBTAINED BY LESSEE OR ANY OF ITS CONTRACTORS. NOTHING IN
THIS LEASE SHALL LIMIT ANY LIABILITY OR OBLIGATION OF NORTHSTAR UNDER THE JOINT USE
AGREEMENT OR A SERVICE AGREEMENT, IF ANY, BETWEEN THE PARTIES.
B. LESSEE AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LEASE
SHALL NOT IN ANY WAY SUBJECT LESSOR TO CLAIMS THAT LESSOR IS OTHER THAN A COMMON CARRIER
FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD
THE INDEMNITEES HARMLESS FOR ANY SUCH CLAIMS.
C. TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE FURTHER AGREES, REGARDLESS OF
ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS
THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR
SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT
( "FELA ") WHENEVER EMPLOYEES OF LESSEE OR ANY OF ITS AGENTS, INVITEES, OR CONTRACTORS CLAIM
OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL
ALSO EXTEND, ON THE SAME BASIS FROM SUCH PARTIES, TO FELA CLAIMS BASED ON ACTUAL OR
ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT
LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND
SAFETY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL
STATUTE.
D. Notwithstanding any other provisions in this Section, the allocation of liability for Environmental Loss or
Damage shall be governed by Section 5. EACH PARTY SHALL INDEMNIFY, DEFEND AND HOLD THE OTHER
PARTY HARMLESS FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RELATED TO ANY ENVIRONMENTAL
LOSS OR DAMAGE ALLOCATED TO THE INDEMNIFYING PARTY PURSUANT TO SECTION 5. IN ADDITION,
LESSEE SHALL INDEMNIFY, DEFEND AND HOLD LESSOR HARMLESS FROM AND AGAINST ANY LOSS OR
DAMAGE ARISING OUT OF OR RELATED TO ANY BREACH OF LESSEE'S OBLIGATIONS UNDER THIS LEASE.
E. Upon written notice from Lessor, Lessee agrees to assume the defense of any lawsuit or other
proceeding brought against any Indemnitee by any entity, relating to any matter covered by this Lease for which Lessee
has an obligation to assume liability for and /or save and hold harmless any Indemnitee. Lessee shall pay all costs
incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses,
settlement payments, and amounts paid in satisfaction of judgments. The indemnification obligations of this Section are
not intended to constitute a waiver of or operate to defeat any other immunities, limitations, or defenses with respect to
any third parties imposed by or available under any statute or common law which are applicable to Lessor or Lessee, or
anyone claiming through Lessor or Lessee. Notwithstanding the previous sentence, with respect to each other only,
Lessee, by mutual negotiation, hereby waives any immunity against claims for which it has assumed an indemnification
obligation hereunder or under the Joint Use Agreement or Service Agreement (as defined in the Joint Use Agreement), if
any, that would otherwise be available under applicable disability benefits or employee benefits acts
Section 15. Intentionally Deleted.
Section 16. Assignment and Sublease.
BNSF - FRIDLEY Definite Term Lease — Land g Form 401; Rev. 04/26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
A. Lessee shall have the right to transfer, assign, or sublease its rights and obligations under this Lease and
in the Premises only to (i) the transferee of its rights and obligations under the Joint Use Agreement or II the holder or
transferee of the easements rights conveyed by the Purchase and Sale Agreement or (iii) a transferee by operation of law.
In the event of a transfer pursuant to (ii) or (iii) above, such transferee shall affirm, in a writing in form and substance
reasonably acceptable to Lessor, its assumption of the obligations of lessee under this Lease, including, without limitation,
the indemnification obligations. Any other transfer by Lessee shall be subject to the prior written consent of Lessor, which
may be withheld in Lessor's sole discretion. Any person or legal representative of Lessee, to whom Lessee's interest
under this Lease passes by operation of law or otherwise, will be bound by the provisions of this Lease. Notwithstanding
anything herein to the contrary, and without limitation to Lessor's right to approve or disapprove any transfer of this Lease,
in no event shall this Lease or any interest herein be assigned unless the Lessee's entire interest under the Joint Use
Agreement is assigned at the same time to the same assignee and in accordance with the terms of the Joint Use
Agreement, and any approval by Lessor to such assignment shall be deemed withdrawn if such interests are not
simultaneously assigned.
B. Any assignment, lease, sublease or transfer made pursuant to Section 16(A) may be made only if, and
shall not be effective until, the assignee cures all outstanding material defaults of Lessee hereunder for which Lessor has
given to Lessee written notice, and executes, acknowledges and delivers to Lessor an agreement, in form and substance
satisfactory to Lessor, whereby the assignee assumes the obligations and performance of this Lease and agrees to be
personally bound by and upon all of the covenants, agreements, terms, provisions and conditions hereof on the part of
Lessee to be performed or observed. Lessee covenants that, notwithstanding any assignment or transfer, whether or not
in violation of the provisions of this Lease, and notwithstanding the acceptance of rent by Lessor from an assignee or
transferee or any other party, Lessee will remain fully and primarily liable along with the assignee for the payment of the
rent due and to become due under this Lease and for the performance of all of the covenants, agreements, terms,
provisions, and conditions of this Lease on the part of Lessee to be performed or observed.
Section 17. Liens.
Lessee shall promptly pay, discharge and release of record any and all liens, charges and orders arising out of
any construction, alterations or repairs, suffered or permitted to be done by Lessee on the Premises. Lessor is hereby
authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by
law to prevent the attachment of any such liens to the Premises; provided, however, that failure of Lessor to take any such
action shall not relieve Lessee of any obligation or liability under this Section or any other Section of this Lease.
Section 18. Insurance. During any period prior to the Active Period in which there is construction activity
occurring on the Premises, Lessee shall, at its sole cost and expense, (i) procure and maintain the insurance coverage
stated below and (ii) arrange for a third party contractor responsible for such construction to procure and maintain the
insurance coverage stated in Exhibit C -1 -A during the period of time such third party contractor is constructing such
improvements. Except during any period prior to the Active Period in which construction activity occurs on the Premises
(which is governed by the preceding sentence) prior to the Active Period, Lessee shall, at its sole cost and expense,
procure and maintain the insurance stated below. After the date on which Mobilization Train Movements begin, Lessee
shall (i) procure and maintain the insurance required by the Joint Use Agreement, which shall also apply to the Premises,
and (ii) during any time after the Mobilization Date in which there is construction activity occurring on the Premises
arrange for a third party contractor responsible for such construction to procure and maintain the insurance coverage
stated in Exhibit C -1 -13. It is understood by the parties that any insurance and indemnity of Lessee shall be excess of any
insurance obtained by any third party contractor.
The insurance to be maintained by Lessee during the Construction Period shall include the following:
A. All risks property insurance covering all of Lessee's property including property in the care, custody or
control of Lessee. Coverage shall include the following:
♦ Issued on a replacement cost basis.
♦ Shall provide that in respect of the interest of Lessor the insurance shall not be invalidated by any
action or inaction of Lessee or any other person and shall insure the respective interests of
Lessor as they appear, regardless of any breach or violation of any warranty, declaration or
condition contained in such policies by Lessee or any other person.
♦ Include a standard loss payable endorsement naming Lessor as the loss payee as its interests
may appear.
Include a waiver of subrogation in favor of Lessor.
BNSF - FRIDLEY Definite Term Lease — Land g Form 401; Rev. 04/26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
B. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with
a combined single limit of a minimum of $25,000,000, and shall cover all platform lease agreements, over and underpass
agreements, and track agreements entered into by the parties. Coverage must be purchased on a post 1998 ISO
occurrence form or equivalent and include coverage for, but not limited to, the following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance:
♦ The employee and workers compensation related exclusions in the above policy shall not apply with
respect to claims related to railroad employees.
♦ The definition of insured contract shall be amended to remove any exclusion or other limitation for
any work being done within 50 feet of railroad property.
♦ Any exclusions related to the explosion, collapse and underground hazards shall be removed.
No other endorsements limiting coverage may be included on the policy.
C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to:
♦ Lessee's statutory liability under the worker's compensation laws of the state(s) in which the work is
to be performed. If optional under State law, the insurance must cover all employees anyway.
♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease
policy limit, $500,000 by disease each employee.
D. Lessee shall procure Railroad Protective Liability insurance naming only the Lessor as the Insured with
coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy shall be issued on a
standard ISO form CG 00 35 10 93 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to include Evacuation Expense Coverage Endorsement.
♦ Endorsed to remove any exclusion for punitive damages.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Lessor prior to performing any work or services under this
Lease
Other Requirements for insurance to be carried during the Construction Period:
1. All policies (applying to coverage listed above) shall contain no exclusion for punitive damages and
certificates of insurance shall reflect that no exclusion exists.
2. Lessee agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In
addition, its insurers, through the terms of the policy or through policy endorsement, waive their right of subrogation
against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement.
Lessee further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss
of its owned or leased property or property under Lessee's care, custody or control. The parties hereto agree that the
policy(ies) carried by Lessee during the Construction Period will also cover the insurance requirements for other platform
agreements by and between the parties for Commuter Service platforms in other locations.
3. Lessee's insurance policies through policy endorsement must include wording which states that the policy
shall be primary and non - contributing with respect to any insurance carried by Railroad. The certificate of insurance must
reflect that the above wording is included in evidenced policies.
4. All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective)
shall include a severability of interest endorsement and shall name Lessor as an additional insured with respect to work
performed under this Lease. Severability of interest and naming Lessor as an additional insured shall be indicated on the
certificate of insurance.
BNSF - FRIDLEY Definite Term Lease — Land 10 Form 401; Rev. 04/26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
5. Lessee is not allowed to self - insure without the prior written consent of Railroad. If granted by Railroad,
any deductible, self - insured retention or other financial responsibility for claims shall be covered directly by Lessee in lieu
of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the provisions of this Lease, be
covered by Lessee's insurance will be covered as if Lessee elected not to include a deductible, self - insured retention or
other financial responsibility for claims.
6. Prior to accessing the Premises, Lessee shall furnish to Railroad an acceptable certificate(s) of insurance
including an original signature of the authorized representative evidencing the required coverage, endorsements, and
amendments and referencing the contract audittfolder number if available. The policy(ies) shall contain a provision that
obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any
cancellation, renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of
insurance. Upon request from Railroad, a certified duplicate original of any required policy shall be furnished.
7. Any insurance policy shall be written by a reputable insurance company acceptable to Railroad or with a
current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the
Premises is located.
8. Not more frequently than once every five years, Railroad may reasonably modify the required insurance
coverage (including the requirements contained in Exhibit C -1 -B) to reflect then - current risk management practices in the
railroad industry and underwriting practices in the insurance industry.
9. If any portion of the operation is to be contracted by Lessee, Lessee shall require that the contractor shall
provide and maintain insurance coverages as set forth herein, naming Railroad as an additional insured, and shall require
that the contractor shall release, defend and indemnify Railroad to the same extent and under the same terms and
conditions as Lessee is required to release, defend and indemnify Railroad herein.
10. Failure to provide evidence as required by this Section shall be a default under this Lease. Acceptance of
a certificate that does not comply with this Section shall not operate as a waiver of Lessee's obligations hereunder.
11. The fact that insurance (including, without limitation, self - insurance) is obtained by Lessee shall not be
deemed to release or diminish the liability of Lessee including, without limitation, liability under the indemnity provisions of
this Lease. Damages recoverable by Railroad shall not be limited by the amount of the required insurance coverage. In
the event that Lessee cannot or does not obtain the insurance coverage required under this Lease, or if such insurance is
initially procured but later lapses for any reason or is no longer commercially available, Lessee shall immediately give
Lessor actual notice of such lapse, the Parties agree to negotiate in good faith for equivalent protection for Lessor, and if
agreement is not reached regarding the equivalent protection, then upon actual notice by Lessor to Lessee, Lessee shall
immediately suspend operations until such time as the insurance required by this Section, or equivalent protection, is
obtained. If insurance required under this Section or equivalent protection is, for any reason, not in place, then Lessor
shall have the right, but not the duty, to purchase such insurance. In the event Lessor chooses to procure such
insurance, Lessee shall reimburse Lessor for the actual cost of such insurance, provided that Lessee shall first have the
right to refute the cost as unreasonable. In the event that Lessor chooses not to purchase such insurance, or Lessee
refutes the cost of such insurance as unreasonable, then operations shall continue to be suspended unless Lessor
agrees in writing to permit operations without insurance or with less insurance coverage than required herein. Lessor
shall have no obligation to agree to permit such operations pursuant to the preceding sentence and no such agreement
shall relieve Lessee of its obligations under this Lease. In the event a dispute over the equivalency of protection results in
temporary suspension of operations, the Parties agree to submit the dispute to expedited arbitration under Article X of the
Joint Use Agreement.
For purposes of this Section, Railroad shall mean Lessor or "Burlington Northern Santa Fe Corporation" and the
subsidiaries, successors, assigns and affiliates of each.
Section 19. Water Rights and Use of Wells.
This Lease does not grant, convey or transfer any right to the use of water under any water right owned or
claimed by the Lessor which may be appurtenant to the Premises. All right, title, and interest in and to such water is
expressly reserved unto Lessor, and the right to use same or any part thereof may be obtained only by the prior written
consent of the Lessor. Lessee shall not use, install or permit to be installed or used any wells on the Premises without the
prior written consent of Lessor.
BNSF - FRIDLEY Definite Term Lease — Land 11 Form 401; Rev. 04/26/05
MEBB: 523141v4
Section 20. Default. Exhibit C to Fridley Master Agreement
A. An "Event of Default" by Lessee shall have occurred hereunder if any of the following shall occur:
(i) if Lessee violates any safety provision contained in this Lease which Lessee fails to cure within
30 days of receipt of written notice by Lessor to Lessee, which period shall be extended as may be reasonably
required to effect a cure;
(ii) if Lessee fails to pay rent or any other monetary payment hereunder when due or fails to perform
any other obligations under this Lease and (i) as to monetary payments, such failure continues thirty (30) days
after written notice from Lessor to Lessee of Lessee's failure to make such payment, or (ii) as to non - monetary
obligations under this Lease, such failure continues thirty (30) days (or such period as may be reasonably
required to effect a cure) after written notice from Lessor to Lessee of Lessee's failure to perform such obligations;
(iii) if the Premises is permanently abandoned or vacated by Lessee; or
(iv) if the Joint Use Agreement is terminated.
B. In the event of an Event of Default as provided above, Lessor may, at its option, (i) terminate this Lease
by serving one (1) year's notice in writing upon Lessee (except in the event of (iv) above in which no additional notice
shall be required), in which event Lessee shall immediately following the first anniversary of receipt of such notice
surrender possession of the Premises to Lessor, without prejudice to any claim for arrears of rent or breach of covenant,
(ii) proceed by alternative dispute resoliution ( "ADR ") or appropriate judicial proceedings, either at law or in equity, to
enforce performance or observance by Lessee of the applicable provisions of this Lease or to recover damages for a
breach thereof, or (iii) cure the default by making any such payment or performing any such obligation, as applicable, at
Lessee's sole expense, without waiving or releasing Lessee from any obligation. In the event of termination of the Joint
Use Agreement, Lessor may (i) immediately terminate this Lease by notice in writing upon Lessee, in which event Lessee
shall immediately surrender possession of the Premises to Lessor, without prejudice to any claim for arrears of rent or
breach of covenant, (ii) proceed by ADR or appropriate judicial proceedings, either at law or in equity, to enforce
performance or observance by Lessee of the applicable provisions of this Lease or to recover damages for a breach
thereof, or (iii) cure the default by making any such payment or performing any such obligation, as applicable, at Lessee's
sole expense, without waiving or releasing Lessee from any obligation. The foregoing rights and remedies given to
Lessor are and shall be deemed to be cumulative and the exercise of any of them shall not be deemed to be an election
excluding the exercise by Lessor at any time of a different or inconsistent remedy. If, on account of breach or default by
Lessee of any of Lessee's obligations hereunder, it shall become necessary for the Lessor to employ an attorney to
enforce or defend any of Lessor's rights or remedies hereunder, then, in any such event, any reasonable amount incurred
by Lessor for attorneys' fees shall be paid by Lessee. Any waiver by Lessor of any default or defaults of this Lease or any
delay of Lessor in enforcing any remedy set forth herein shall not constitute a waiver of the right to pursue any remedy at
a later date or terminate this Lease for any subsequent default or defaults, nor shall any such waiver in any way affect
Lessor's ability to enforce any Section of this Lease. The remedies set forth in this Section shall be in addition to, and not
in limitation of, any other remedies that Lessor may have at law or in equity, and the applicable statutory period for the
enforcement of a remedy will not commence until Lessor has actual knowledge of a breach or default and Lessor has
provided to Lessee written notice of such breach or default.
Section 21. Termination.
Upon the termination of Lessee's tenancy under this Lease in any manner herein provided, Lessee shall
relinquish possession of the Premises and shall remove any Lessee Improvements (unless Lessor has purchased same
in accordance with the provisions hereof), and restore the Premises to substantially the state and environmental condition
in which it was prior to Lessee's use ( "Restoration Obligations "). If Lessee shall fail within thirty (30) days after the date
of such termination of its tenancy to complete the Restoration Obligations; then Lessor may, at its election (i) either
remove the Lessee Improvements or otherwise restore the Premises, and in such event Lessee shall, within thirty (30)
days after receipt of bill therefor, reimburse Lessor for cost incurred, (ii) upon written notice to Lessee may take and hold
any Lessee Improvements and personal property as its sole property, without payment or obligation to Lessee therefor, or
(iii) specifically enforce Lessee's obligation to restore and /or pursue any remedy at law or in equity against Lessee for
failure to so restore. Further, in the event Lessor has consented to Lessee Improvements remaining on the Premises
following termination, or in the event Lessor has elected to purchase the same as provided herein, Lessee shall, upon
request by Lessor, provide a Bill of Sale in a form acceptable to Lessor conveying such Lessee Improvements to Lessor.
BNSF - FRIDLEY Definite Term Lease — Land 12 Form 401; Rev. 04/26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
Section 22. Survival of Obligations.
Notwithstanding any expiration or other termination of this Lease, all of Lessee's indemnification obligations and
any other obligations that have accrued but have not been satisfied under this Lease prior to the termination date shall
survive such termination.
Section 23. Holding Over.
If Lessee fails to surrender the Premises to Lessor upon the expiration of the Term or upon any other termination
of this Lease, and Lessor does not consent in writing to Lessee's holding over, then such holding over will be deemed a
month -to -month tenancy. Lessee's holdover will be subject to all provisions of this Lease.
Section 24. Multiple Party Lessee.
In the event that Lessee consists of two or more parties, all the covenants and agreements of Lessee herein
contained shall be the joint and several covenants and agreements of such parties.
Section 25. Damage or Destruction.
If at any time during the Term, the Premises are damaged or destroyed by fire or other casualty, then Lessee may
terminate this Lease or repair and reconstruct the Premises to substantially the same condition in which the Premises
existed immediately prior to the damage or destruction.
Section 26. Eminent Domain.
If the entire Premises are at any time after execution of this Lease taken by public use or condemned under
eminent domain (but not by Lessor), then this Lease shall terminate and expire effective the date of such taking and
Lessee shall be entitled to the entire proceeds of such condemnation pertaining to the Premises. In the event of a partial
taking of the Premises, Lessee shall have the right to either: (i) terminate this Lease, or (ii) keep this Lease in effect and
retain all of the condemnation award pertaining to the Premises (excluding the underlying fee interest). Lessor hereby
assigns to Lessee, as provided above, any rights that Lessor has to receive condemnation proceeds pertaining to the
Premises except those proceeds attributable to the underlying fee interest. In the event of either a complete or partial
condemnation of the Premises, Lessee shall be entitled to damages for the taking of its leasehold estate or the diminution
of the value of such estate, plus a claim for any and all leasehold improvements to the Premises or material alterations
and a claim for loss of business, damage to fixtures, removal and reinstallation costs and moving expenses. If the portion
of the Premises remaining after a partial taking is inadequate for the continued operation of Lessee's business at the
Premises, in Lessee's reasonable business judgment, Lessee shall have the right to terminate this Lease. In the event of
such a termination, Lessor and Lessee shall execute a new lease for the relocated platform at a new location mutually
acceptable to the State, the Lessor, and the Lessee, on substantially the same the terms and conditions as are contained
herein.
Section 27. Representations.
Neither Lessor nor Lessor's agents have made any representations or promises with respect to the Premises
except as herein expressly set forth.
Section 28. Intentionally Deleted.
Section 29. Consents and Approvals.
Except as otherwise provided herein, whenever in this Lease Lessor's consent or approval is required, such
consent or approval shall be in Lessor's sole discretion. In the event a conflict arises due to such consent or approval (or
lack of either), or in the event of any other conflict hereunder, the parties hereto agree to submit such conflict to the
alternative dispute resolution procedures set forth in the Joint Use Agreement.
Section 30. Captions.
The captions are inserted only as a matter of convenience and for reference, and in no way define, limit or
describe the scope of this Lease nor the intent of any provision thereof.
BNSF - FRIDLEY Definite Term Lease — Land 13 Form 401; Rev. 04/26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
Section 31. Public Record.
It is understood and agreed that a memorandum of this Lease, shall be placed of public record.
Section 32. Governing Law.
All questions concerning the interpretation or application of provisions of this Lease shall be decided according to
the substantive laws of the state in which the Premises are located.
Section 33. No Waiver.
One or more waivers of any covenant, term, or condition of this Lease by Lessor shall not be construed as a
waiver of a subsequent breach of the same covenant, term, or condition. The consent or approval by Lessor to or of any
act by Lessee requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or
approval of any subsequent similar act.
Section 34. Binding Effect.
All provisions contained in this Lease shall be binding upon, inure to the benefit of, and be enforceable by the
respective successors and assigns of Lessor and Lessee to the same extent as if each such successor and assign was
named a party to this Lease.
Section 35. Force Maieure.
Except as may be elsewhere specifically provided in this Lease, if either party is delayed or hindered in, or
prevented from the performance required under this Lease (except for payment of monetary obligations) by reason of
earthquakes, landslides, strikes, lockouts, labor troubles, failure of power, riots, insurrection, war, acts of God or other
reason of the like nature not the fault of the party delayed in performance of its obligation, such party is excused from
such performance for the period of delay. The period for the performance of any such act will then be extended for the
period of such delay.
Section 36. Entire Agreement/Modification.
This Lease, the Joint Use Agreement, and the Service Agreement are the full and complete agreements between
Lessor and Lessee with respect to all matters relating to lease of the Premises and to the extent of an express conflict
between this Lease, the Joint Use Agreement, the Service Agreement or any other agreement by and between the
parties, the provisions of the Joint Use Agreement shall control. The parties acknowledge and agree that the provisions of
Sections 14 and 18 of this Lease supplement the terms of the Joint Use Agreement and any Service Agreement. This
Lease may be modified only by a written agreement signed by Lessor and Lessee.
Section 37. Notices.
Any notice or documents required or permitted to be given hereunder by one party to the other shall be in writing
and the same shall be given or shall be deemed to have been served and given if (i) delivered in person to the address
hereinafter set forth for the party to whom the notice is given, (ii) placed in the United States mail, certified - return receipt
requested, addressed to such party at the address hereinafter set forth, or (iii) deposited into the custody of any reputable
overnight carrier for next day delivery, addressed to such party at the address hereinafter set forth. Any notice mailed as
above shall be effective upon its deposit into the custody of the U. S. Postal Service or such reputable overnight carrier,
as applicable; all other notices shall be effective upon receipt. All rent and other payments due to Lessor hereunder shall
also be made as provided in Section 4(A) above, and delivery of such rental and other payments shall only be effective
upon actual receipt by Lessor. From time to time either party may designate another address or telecopy number within
the 48 contiguous states of the United States of America for all purposes of this Lease by giving the other party not less
than fifteen (15) days' advance written notice of such change of address in accordance with the provisions hereof.
If to Lessee:
The Metropolitan Council
BNSF - FRIDLEY Definite Term Lease — Land 14 Form 401; Rev. 04/26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
390 N. Robert Street
Saint Paul, Minnesota 55101
Attn: Regional Administrator
If to Lessor:
BNSF Railway Company
2500 Lou Menk Drive, AOB -3
Fort Worth, Texas 76131 -2828
Attn: Passenger Operations
With a copy to:
Staubach Global Services - RR, Inc.
3017 Lou Menk Drive, Suite 100
Fort Worth, Texas 76131 -2800
Attn: Leases
Section 38. Counterparts.
This Lease may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original
but which together shall constitute one and the same instrument, and the signature pages from any counterpart may be
appended to any other counterpart to assemble fully executed documents, and counterparts of this Lease may also be
exchanged via electronic facsimile machines and any electronic facsimile of any party's signature shall be deemed to be
an original signature for all purposes.
Section 39. Relationship.
Notwithstanding anything else herein to the contrary, neither party hereto shall be construed or held, by virtue of
this Lease, to be the agent, partner, joint venturer, or associate of the other party hereto, it being expressly understood
and agreed that the relationship between the parties hereto is and at all times during the Term of this Lease, shall remain
that of Lessor and Lessee.
Section 40. Severability.
If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective
during the term of this Lease, then and in that event, it is the intention of the parties hereto that the remainder of this
Lease shall not be affected thereby, and it is also the intention of the parties to this Lease that in lieu of each clause or
provision of this Lease that is illegal, invalid or unenforceable, there be added, as a part of this Lease, a clause or
provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
Section 41. Transferability Release of Lessor.
Lessor shall have the right to transfer and assign, in whole or in part, all of its rights and obligations under this
Lease and in the Premises only to the transferee of its rights and obligations under the Joint Use Agreement or to the
holder or transferee of the easements rights conveyed by the Purchase and Sale Agreement, and upon such transfer,
Lessor shall be released from any further obligations hereunder, and Lessee agrees to look solely to the successor in
interest of Lessor for the performance of such obligations.
Section 42. Tax Waiver.
Lessee waives all rights pursuant to all Laws to protest appraised values or receive notice of reappraisal
regarding the Premises (including Lessor's personalty), irrespective of whether Lessor contests the same.
Section 43. Attorneys' Fees.
BNSF - FRIDLEY Definite Term Lease— Land 15 Form 401; Rev. 04 /26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
If any action at law or in equity is necessary to enforce or interpret the terms of this Lease, the prevailing party
shall be entitled to reasonable attomeys' fees, costs, and necessary disbursements in addition to any relief to which it may
be entitled.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
BNSF - FRIDLEY Definite Term Lease — Land 16 Farm 401; Rev. 04/26/05
MEBB: 523141v4
Executed by the parties to be effective as of the Effective Date set forth above.
LESSOR
BNSF Railway Company
By:
Name:
Title:
Exhibit C to Fridley Master Agreement
Richard E. Weicher
Vice President & General Counsel - Regulatory
[SIGNATURE PAGE TO PLATFORM AGREEMENT — FRIDLEY STATION]
BNSF - FRIDLEY Definite Tenn Lease — Land 17 Form 401; Rev. 04/26/05
MEBB: 523141v4
LESSEE
THE METROPOLITAN COUNCIL
By:
Name:
Title:
[SIGNATURE PAGE TO PLATFORM AGREEMENT — FRIDLEY STATION]
Exhibit C to Fridley Master Agreement
BNSF - FRIDLEY Definite Term Lease — Land 18 Form 401; Rev. 04/26/05
MEBB: 523141v4
May 31, 2007
2700 - NSR- 25(H)- FRIDLEY
Exhibit C to Fridley Master Agreement
EXHIBIT A
PREMISES
STATION DESCRIPTION FOR FRIDLEY
Parcel 25(H) C.S. 2700 (XXX) NSR
S.P. 9901 -01
That part of Tract A described below:
Tract A. The right of way of the BNSF Railway Company varying in width, over and across the
Southeast Quarter of the Southeast Quarter of Section 15 and the Northeast Quarter of
the Northeast Quarter of Section 22, both in Township 30 North, Range 24 West, Anoka
County, Minnesota;
which lies within a distance of 35.33 feet westerly (measured at right angles) of Line 1 described
below:
Line 1: Commencing at the intersection of the south line of said Section 15 with a line run
parallel with and distant 5.33 feet westerly from the existing BNSF Main 2 centerline as
it exists from time to time; thence southerly along said 5.33 foot parallel line for 530.69
feet to the point of beginning of Line 1 to be described; thence northerly along said 5.33
foot parallel line for 530.69 feet; thence continuing northerly along the northerly
prolongation of said parallel line for 469.31 feet and there terminating.
BNSF - FRIDLEY Definite Term Lease — Land 19 Form 401; Rev. 04/26/05
MEBB: 523141v4
EXHIBIT B Exhibit C to Fridley Master Agreement
WORK LETTER AGREEMENT
THIS WORK LETTER AGREEMENT (the "Agreement ") supplements that certain Definite Term Lease for Land
( "Lease ") dated May 31, 2007, by and between BNSF Railway Company, a Delaware corporation ( "Lessor") and THE
METROPOLITAN COUNCIL, a public corporation and political subdivision of the State of Minnesota ( "Lessee "). In the
event of an express conflict between the provisions of the Lease and the provisions of the Work Letter Agreement, the
provisions of the Lease shall control. Unless the context otherwise requires, capitalized terms not defined herein shall
have the meaning assigned to such terms in the Lease.
In the event Lessee uses one or more general contractors or subcontractors ( "Contractor(s) ") for any
improvements, alterations, build out, finish out, or other similar work on the Premises ("Work "), Lessee agrees to and
accepts the following:
1. Prior to performing any Work, Lessee shall obtain Lessor's approval of each Contractor and any Work to
be performed by such Contractor shall be performed pursuant to a written contract between Lessee and the Contractor
("Work Contract ") approved in advance by Lessor.
2. Prior to commencing any Work, Lessee shall submit for Lessor's review and approval Lessee's Required
Detail in accordance with the procedure set forth in the Lease.
3. All Work must be performed at Lessee's sole cost and expense and in accordance with the Required
Detail which have previously been approved by Lessor.
4. Lessee shall cause its Contractors to meet all insurance and indemnification requirements required of
Lessee under the Lease.
5. Prior to the commencement of the Work, all required local building, fire, health and other departments
must approve all plans and specifications, including the Required Detail, requiring approval by local building codes. In
addition, the Work shall be performed, installed and /or constructed in accordance with all applicable federal, state and
local laws, codes, ordinances, rules and regulations, including without limitation, the Americans With Disabilities Act of
1990, 42 U.S.C.A. 12101 et seq.
6. Lessee shall be responsible for obtaining all municipal and other governmental licenses or permits for the
Work with copies furnished to Lessor prior to commencement of any construction.
7. Lessee shall fumish Lessor a copy of its schedule of the Work.
8. Notwithstanding the status of the completion of the Work, Lessee's obligation for payment of Base Rent
and other amounts due under the Lease shall commence on the Commencement Date provided in the Lease.
Notwithstanding anything herein to the contrary, Lessor may, in Lessor's sole discretion, permit Lessee and Lessee's
Contractors to enter the Premises prior to the Commencement Date in order to commence Work; provided, however, that
Lessee agrees that such early entry or occupation of the Premises shall be governed by all of the terms and conditions of
the Lease and this Lease (including the insurance and indemnity requirements therein), as such terms and conditions are
more specifically set forth in the Lease and this Lease.
Lessee. 9. During construction, Lessor reserves the right to inspect the Work at any time upon reasonable notice to
Work. 10. Lessee's Contractors shall keep the Premises reasonably clean at all times during the performance of the
11. All Work must be performed in a good and workmanlike manner, free from defects in materials and
workmanship.
12. If any materialman's, mechanic's, laborer's or any other liens for any work claimed to have been
undertaken for Lessee or at Lessee's request is filed against the Premises, Lessee shall indemnify, defend and hold
BNSF - FRIDLEY Definite Term Lease — Land 20 Form 401; Rev. 04/26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
harmless Lessor from any such liens filed during the term of the Lease and shall, at Lessee's own expense, cause all
such liens to be removed within ten (10) days after written notice from Lessor to Lessee of the filing thereof. At the time
Work is complete, Lessee agrees to provide to Lessor a set of as- builts plans for the Work.
13. All guarantees and warranties provided by Lessee's Contractors shall be issued to Lessee and, for Work
which is or will at the termination of this Lease be Lessor's property, also to Lessor.
BNSF - FRIDLEY Definite Term Lease — Land 21 Form 401; Rev. 04 /26/05
MEBB: 523141v4
EXHIBIT C
CONTRACTOR REQUIREMENTS
1.01 General
Exhibit C to Fridley Master Agreement
1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is
over or under on or adjacent to Railway property and/or right -of -way, hereafter referred to as "Railway Property", during the
construction of the Commuter Service Platform and related improvements.
1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C -1" Agreement, in the form
attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 3 of
said Exhibit "C -1 ". Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa
Martinez at Marsh, USA, 214 - 303 -8519.
1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement of any trains on
Railway Property.
1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work
on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create a hazard to Railway's Property, employees,
and/or operations.
1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local Governmental laws and
regulations, including, but not limited to environmental laws and regulations (including but not limited to the Resource Conservation
and Recovery Act, as amended; the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA),
and health and safety laws and regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and
against all fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway which arise
out of Contractor's work under this Agreement.
1.01.06 The Contractor must notify the Met Council or whoever globally (Agency) at and Railway's Manager Public
Projects, telephone number (763) 782 -3478 or his successor or designee at least thirty (30) calendar days before commencing any
work on Railway Property. Contractors notification to Railway, must refer to Railroad's file
1.01.07 For any falsework above any tracks or any excavations located, whichever is greater, within twenty -five (25) feet of the
nearest track or intersecting a slope from the plane of the top of rail on a 1 %z horizontal to 1 vertical slope beginning at eleven (11)
feet from centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish the Railway
five sets of working drawings showing details of construction affecting Railway Property and tracks. The working drawing must
include the proposed method of installation and removal of falsework, shoring or cribbing, not included in the Required Detail and
two sets of structural calculations of any falsework, shoring or cribbing. All calculations must take into consideration railway
surcharge loading and must be designed to meet American Railway Engineering and Maintenance -of -Way Association (previously
known as American Railway Engineering Association) Coopers E -80 live loading standard. All drawings and calculations must be
stamped by a registered professional engineer licensed to practice in the state the project is located. The Contractor must not begin
work until notified by the Railway that the Required Detail have been approved. The Contractor will be required to use lifting
devices such as, cranes and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be
relieved of responsibility for results obtained by the implementation of said approved Required Detail.
1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled
and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional
compensation in the event his work is delayed by the Railway.
1.02 Contractor Safety Orientation
1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property without
first having completed Railway's Engineering Contractor Safety Orientation, found on the web site
www.contractororientation.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees
completes Railway's Engineering Contractor Safety Orientation through internet sessions before any work is performed on
the Project. Additionally, the Contractor must ensure that each and every one of its employees, subcontractors, agents or
BNSF - FRIDLEY Definite Term Lease— Land 22 Form 401; Rev. 04 /26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before en tering Railway
Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must
renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the
Railway's Representative.
1.03 Railway Requirements
1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand,
debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from
Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by the
Agency.
1.03.02 The Contractor must notify the Railway's Division Superintendent at
and provide blasting plans to the Railway for review seven (7) calendar days prior to conducting any
blasting operations adjacent to or on Railway's Property.
1.03.03 The Contractor must abide by the following temporary clearances during construction:
15' Horizontally from centerline of nearest track
21' -6" Vertically above top of rail
27' -0" Vertically above top of rail for electric wires carrying less than 750 volts
28' -0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts
30' -0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts
34' -0" Vertically above top of rail for electric wires carrying more than 20,000 volts
1.03.04 Upon completion of construction, the following clearances shall be maintained:
25' Horizontally from centerline of nearest track
23' -3 W Vertically above top of rail
1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and
to the (Agency) and must not be undertaken until approved in writing by the Railway, and until the (Agency
has obtained any necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will be
allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory Authority's approval.
1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing tell -tales or other
protective devices Railway deems necessary for protection of Railway operations. The cost of tell -tales or protective devices will be
bome by the Agency.
1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract specifications must be
submitted to the Railway by (Agency) for approval before work is undertaken and this work must not be
undertaken until approved by the Railway.
1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until
permission has been obtained from the Railway. The Contractor must obtain a "Temporary Private Crossing Agreement" from the
Railway prior to moving his equipment or materials across the Railways tracks. The temporary crossing must be gated and locked at
all times when not required for use by the Contractor. The temporary crossing for use of the Contractor will be at the expense of the
Contractor.
1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants,
contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center
at 1(800) 832 -5452, of any discharge, release or spills in excess of a reportable quantity. Contractor must not allow Railway Property
to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any
state analogue.
1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property
all of Contractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any
Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition
acceptable to the Railway's representative.
BNSF - FRIDLEY Definite Term Lease — Land 23 Form 401; Rev. 04/26/05
MEBB:523141v4
Exhibit C to Fridley Master Agreement
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan
1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and implement a
Roadway Worker Protection /On Track Safety Program and work with Railway Project Representative to develop an on track
safety strategy as described in the guidelines listed in the on track safety portion of the Safety Orientation. This Program must provide
Roadway Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or invitees. This training
is reinforced at the job site through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action
Plan, as provided for on the web site www.contractororientation.com which will be made available to Railway prior to
commencement of any work on Railway Property. During the performance of work, the Contractor must audit its work activities. The
Contractor must designate an on -site Project Supervisor who will serve as the contact person for the Railway and who will maintain a
copy of the Safety Action Plan, safety audits, and Material Safety Datasheets (MSDS), at the job site.
1.05 Protection of Railway Facilities and Railway Flagger Services:
1.05.01 The Contractor must give Railway's Roadmaster (telephone ) a minimum of thirty (30) calendar days advance
notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger's
position). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that
such services are no longer necessary, the Contractor must give the Roadmaster five (5) working days advance notice so that
appropriate arrangements can be made to abolish the position pursuant to union requirements.
1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger and protective services and devices will
be required and furnished when Contractor's work activities are located over, under and/or within twenty-five (25) feet measured
horizontally from centerline of the nearest track and when cranes or similar equipment positioned beyond 25 -feet from the track
centerline could foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto for the following
conditions:
1.05.02a When in the opinion of the Railway's Representative it is necessary to safeguard Railway's Property, employees, trains,
engines and facilities.
1.05.02b When any excavation is performed below the bottom of tie elevation, it in the opinion of Railway's representative, track or
other Railway facilities may be subject to movement or settlement.
1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds.
1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons,
material, equipment or blasting in the vicinity.
1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which
might result in making the track impassable.
1.05.03 Flagging services will be performed by qualified Railway flaggers.
1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to protect Railway
Property and operations, if deemed necessary by the Railways Representative.
1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8) hour basic day.
1.05.03c The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative, will be
borne by the (Agency) . The estimated cost for one (1) flagger is $800.00 for an eight (8) hour basic day with
time and one -half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation
allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare
benefits, transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining agreements and rate
changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. The flagging rate in effect at the
time of performance by the Contractor hereunder will be used to calculate the actual costs of flagging pursuant to this paragraph.
1.05.03d The average train traffic on this route is freight trains per 24 -hour period at a timetable speed MPH and
passenger trains at a timetable speed of MPH.
BNSF - FRIDLEY Definite Term Lease — Land 24 Form 401; Rev. 04126/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
1.06 Contractor General Safety Requirements
1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and equipment can
occur at any time and in any direction. All work performed by contractors within 25 feet of any track must be in compliance
with FRA Roadway Worker Protection Regulations.
1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be conducted with all personnel.
involved with the task and repeated when the personnel or task changes. If the task is within 25 feet of any track, the job
briefing must include the Railway's flagger, as applicable, and include the procedures the Contractor will use to protect its
employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway track(s).
1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety strategy
approved by the Railway's Project Representative. When authority is provided, every contractor employee must
know: (1) who the Railway flagger is, and how to contact the flagger, (2) limits of the authority, (3) the method of
communication to stop and resume work, and (4) location of the designated places of safety. Persons or equipment entering
flag/work limits that were not previously job briefed, must notify the flagger immediately, and be given a job briefing when
working within 25 feet of the center line of track.
1.06.04 When Contractor employees are required to work on the Railway Property after normal working hours or on
weekends, the Railroad's representative in charge of the project must be notified. A minimum of two employees must be
present at all times.
1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under the influence of drugs
or alcohol, or in the possession of same, will be removed from the Railway's Property and subsequently released to the custody of a
representative of Contractor management. Future access to the Railway's Property by that employee will be denied.
1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported immediately to the Railway's
representative in charge of the project. Any vehicle or machine which may come in contact with track, signal equipment, or structure
(bridge) and could result in a train derailment must be reported immediately to the Railway representative in charge -of the project and
to the Railway's Resource Operations Center at 1(800) 832 -5452. Local emergency numbers are to be obtained from the Railway
representative in charge of the project prior to the start of any work and must be posted at the job site.
1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly weapons in their
possession while working on Railway's Property.
1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and ANSI specifications.
Current Railway personnel protective equipment requirements are listed on the web site, www.contractororientation.com,
however, a partial list of the requirements include: a) safety glasses with permanently affixed side shields (no yellow lenses); b) hard
hats c) safety shoe with: hardened toes, above - the -ankle lace -up and a defined heel; and d) high visibility retro - reflective work wear.
The Railroad's representative in charge of the project is to be contacted regarding local specifications for meeting requirements
relating to hi- visability work wear. Hearing protection, fall protection, gloves, and respirators must be worn as required by State and
Federal regulations. (NOTE — Should there be a discre anc between the information contained on the web site and the
information in this uaraeranh the web site will govern.
1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR EQUIPMENT
CLOSER THAN 25' -0" TO THE CENTER LINE OF THE NEAREST RAILWAY TRACK. MATERIALS, MACHINERY
OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET OF ANY HIGHWAY/RAM AT -GRADE
CROSSINGS, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE
CROSSING. PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH
CONCURRENCE OF THE RAILROAD'S REPRESENTATIVE.
1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment must be in gear
with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left
unattended on Railway's Property must be left inoperable and secured.against movement. (See internet Engineering Contractor Safety
Orientation program for more detailed specifications)
1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work
performed over water must meet all Federal, State and Local regulations.
BNSF - FRIDLEY Definite Term Lease — Land 25 Form 401; Rev. 04/26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
1.06.12 All power line wires must be considered dangerous and of high. voltage unless informed to the contrary by proper authority.
For all power lines the minimum clearance between the lines and any part of the equipment or load must be; 200 KV or below - 15
feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line
is not known, a minimum clearance of 45 feet must be maintained. A person must be designated to observe clearance of the
equipment and give a timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual
means.
1.07 Excavation
1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires, or cables, including
fiber optic cable systems are present and located within the Project work area. The Contractor must determine whether excavation on
Railway's Property could cause damage to buried cables resulting in delay to Railway traffic and disruption of service to users.
Delays and disruptions to service may cause business interruptions involving loss of revenue and profits. Before commencing
excavation, the Contractor must contact BNSF's Field Engineering Representative ( ).All underground and overhead
wires will be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the
Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the
location of all underground utilities before excavating.
1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if
obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be
identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of underground cables
or lines of any kind, no work must be performed until the exact location has been determined. There will be no exceptions to these
instructions.
1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of depth, must be
shored where there is any danger to tracks, structures or personnel.
1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected when not being
worked on. When leaving work site areas at night and over weekends, the areas must be secured and left in a condition that will
ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards.
All excavations must be back filled as soon as possible.
1.08 Hazardous Waste, Substances and Material Reporting
1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not
limited to any non - containerized commodity or material, on or adjacent to Railway's Property, in or near any surface water, swamp,
wetlands or waterways, while performing any work under this Agreement, Contractor must immediately: (a) notify the Railway's
Resource Operations Center at 1(800) 832 -5452, of such discovery: (b) take safeguards necessary to protect its employees,
subcontractors, agents and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate
measure to minimize the impact of such release.
1.09 Personal Injury Reporting
1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration
(FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees
while on the Railway's Property must be reported immediately (by phone mail if unable to contact in person) to the Railway's
representative in charge of the project. The Non - Employee Personal Injury Data Collection Form contained herein is to be completed
and sent by Fax to the Railway at 1(817) 352 -7595 and to the Railway's Project Representative no later than the close of shift on the
date of the injury.
BNSF - FRIDLEY Definite Term Lease — Land 26 Form 401; Rev. 04/26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
NON - EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD
BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO
PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
1. Accident City/St 2. Date: Time:
County: 3. Temperature: 4. Weather
(if non - Railway location)
5. Social Security #
6. Name (last, fast, mi)
7. Address: Street: City:
8. Date of Birth: and/or Age Gender:
(if available)
9 W Tniurv: (b) Body Part:
(i.e. (a) Laceration (b) Hand)
11. Description of Accident (To include location, action, result, etc.):
12. Treatment:
? First Aid Only
? Required Medical Treatment
? Other Medical Treatment
13. Dr. Name
14. Dr. Address:
Street:
15. Hospital Name:
16. Hospital Address:
Street:
17. Diagnosis:
FAX TO
RAILWAY AT (817) 352 -7595
AND COPY TO
RAILWAY ROADMASTER FAX
City:
City:
St. Zip:
30. Date:
St• Zip:
St: Zip:
BNSF - FRIDLEY Definite Term Lease — Land 27 Form 401: Rev. 04/26/05
MEBB: 523141v4
EXHIBIT C -1 -A
Agreement
Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
BNSF RAILWAY COMPANY
Attention: Manager Public Projects
Railway File:
Agency Project:
Gentlemen:
Exhibit C to Fridley Master Agreement
The undersigned (hereinafter called, the "Contractor "), has entered into a contract (the "Contract ")dated
200_,, [ ** *Drafter's Note: insert the date of the contract between the Agency and the Contractor here[ with
(Drafter's Note: insert the name of the Agency here Ifor the performance of certain work in connection with the following project
Performance of such work will necessarily require contractor to enter BNSF RAILWAY
COMPANY ( "Railway ") right of way and property ( "Railway Property"). The Contract provides that no work will be commenced
within Railway Property until the Contractor employed in connection with said work for [insert Agency name here]
(i) executes and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits specified
in such Agreement and Section 3 herein. If this Agreement is executed by a party who is not the Owner, General Partner, President or
Vice President of Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this
Agreement on behalf of Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property and as an
inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby agree with Railway as
follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards, claims,
demands, and expenses (including attorneys' fees), for injury or death to all persons, including Railway's and Contractor's officers and
employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of
Contractor's subcontractors' acts or omissions or any work performed on or about Railway's property or right -of -way. THE
LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE
DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE
NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT
THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS
NEGLIGENCE OF RAILWAY.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR
JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING
CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE BOILER INSPECTION ACT,
WHENEVER SO CLAIMED.
Contractor fiuther agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made
against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or in equity brought against Railway
on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under
this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing, of the receipt
or dependency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the
event of a suit being brought against Railway, Railway may forward summons and complaint or other process in connection therewith
to Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify,. and save
harmless Railway from and against all damages, judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting
from or incident to any such claims or suits.
BNSF - FRIDLEY Definite Term Lease — Land 28 Form 401; Rev. 04/26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement
survive any termination of this Agreement.
Section 2. TERM
This Agreement is effective from the date of the Contract until (i) the completion of the project set forth herein, and (ii) full
and complete payment to Railway of any and all sums or other amounts owing and due hereunder.
Section 3. INSURANCE
Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance
coverage:
A. Commercial General Liability insurance. Commercial General Liability insurance. This insurance must contain
broad form contractual liability.
Unless otherwise specified, the insurance minimum limits of liability shall be as follows:
$25,000,000 — Per Occurrence
$25,000,000 — Annual Aggregate applying per project or location
$25,000,000 — Annual Aggregate applying to Products and Completed Operations
$ 50,000 — Fire Damage (any one fire)
$ 5,000 — Medical Expense (any one person per occurrence)
Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not limit to the
following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy must also contain the following endorsements, which must be indicated on the certificate of insurance:
♦ It is agreed that any workers' compensation exclusion does not apply to Railroad payments related to the
Federal Employers Liability Act or a Railroad Wage Continuation Program or similaz programs and any
payments made are deemed not to be either payments made or obligations assumed under any Workers
Compensation, disability benefits, or unemployment compensation law or similar law.
♦ The definition of insured contract must be amended to remove any exclusion or other limitation for any
work being done within 50 feet of railroad property.
♦ Any exclusions related to the explosion, collapse and underground hazards must be removed.
No other endorsements limiting coverage as respects obligations under this Agreement may be included on the policy.
B. Business Automobile Insurance. This insurance must contain a combined single limit of at least $25,000,000 per
occurrence, and include coverage for, but not limited to the following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to:
Coverage B. Employers' Liability with limits of no less than:
$500,000 — Bodily Injury by disease per employee
$500,000 — Bodily Injury by disease aggregate
- $500,000 — Bodily Injury by accident
♦ Coverage C: All States Coverage
♦ If applicable, USL&H, and Voluntary
BNSF - FRIDLEY Definite Term Lease — Land 29
MEBB: 523141v4
Form 401; Rev. 04/26/05
♦ A waiver of subrogation in favor of the Owners Exhibit C to Fridley Master Agreement
Other Requirements:
All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of
insurance must reflect that no exclusion exists.
Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its
insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railroad for all claims and
suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery,
and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under
contractor's care, custody or control.
Contractor's insurance policies through policy endorsement, must include wording which states that the policy is primary and
non- contributing with respect to any insurance carried by Railroad. The certificate of insurance must reflect that the above wording is
included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) must include a
severability of interest endorsement and Railroad must be named as an additional insured with respect to work performed under this
agreement. Severability of interest and naming Railroad as additional insured must be indicated on the certificate of insurance.
Contractor is not allowed to self - insure without the prior written consent of Railroad If granted by Railroad, any deductible,
self - insured retention or other financial responsibility for claims must be covered directly by contractor in lieu of insurance. Any and
all Railroad liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by contractor's
insurance will be covered as if contractor elected not to include a deductible, self - insured retention or other financial responsibility for
claims.
Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of insurance including an
original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing
the contract audit/folder number if available. The policy(ies) must contain a provision that obligates the insurance company(ies)
issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non - renewal, substitution or material
alteration. This cancellation provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified
duplicate original of any required policy must be furnished. Contractor should send the certificate(s) to the following address:
BNSF RISK MANAGEMENT
2500 Lou Menk Drive AOB -1
Fort Worth, TX 76131 -2828
Fax: 817- 352 -7207
Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a current Best's
Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provide.
Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance agent(s)/broker(s), who
have been instructed by contractor to procure the insurance coverage required by this Agreement. Allocated Loss Expense must be in
addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Railroad may reasonably modify the required insurance coverage to reflect
then- current risk management practices in the railroad industry and underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by contractor, contractor must require that the subcontractor provide and
maintain the insurance coverages set forth herein, naming Railroad as an additional insured, and requiring that the subcontractor
release, defend and indemnify Railroad to the same extent and under the same terms and conditions as contractor is required to
release, defend and indemnify Railroad herein.
Failure to provide evidence as required by this section will entitle, but not require, Railroad to terminate this Agreement
immediately. Acceptance of a certificate that does not comply with this section will not operate as a waiver of contractor's obligations
hereunder.
BNSF - FRIDLEY Definite Term Lease — Land 30 Form 401; Rev. 04 /26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
The fact that insurance (including, without limitation, self - insurance) is obtained by contractor will not be deemed to release
or diminish the liability of contractor including, without limitation, liability under the indemnity provisions of this Agreement.
Damages recoverable by Railroad will not be limited by the amount of the required insurance coverage.
For purposes of this section, Railroad means `Burlington Northern Santa Fe Corporation e, « , BNSF RAILWAY COMP
and the subsidiaries, successors, assigns and affiliates of each.
Section 4. EXIBBIT "C " CONTRACTOR REQUIREMENTS
The Contractor must observe and comply with all provisions, obligations, requirements and limitations .contained in the
Contract, and the Contractor Requirements set forth on Exhibit "C" attached to the Contract and this Agreement, , including, but not
be limited to, payment of all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting from
use, occupancy, or presence of its employees, representatives, or agents or subcontractors on or about the construction site.
Section 5. TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies,
and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects
Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as
further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses
and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing
work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay.
For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from
Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight
trains operate under incentive /penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not
meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty
payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually
incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors.
The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay
covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway
confidentiality obligations. Damages for train delay for certain trains may be as high as $50,000.00 per incident.
Contractor and its subcontractors must give Railway's representative (____) weeks advance notice of the
times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the
project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations.
Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional
costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project.
Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as to not cause
any delays to any trains.
BNSF - FRIDLEY Definite Term Lease — Land 31
Form 401; Rev. 04/26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this letter, which,
upon execution by Railway, will constitute an Agreement between us.
(Contractor)
By:
Printed Name:
Title:
Contact Person:
Address:
City:
Fax: _
Phone:
Email:
State:
Zip:
BNSF Railway Company
By: _
Name:
Manager Public Projects
Accepted and effective this day of
2007
BNSF - FRIDLEY Definite Term Lease — Land 32 Form 401; Rev. 04 /26/05
MEBB: 523141v4
EXIiIBIT C -1 -B
Agreement
Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
BNSF RAILWAY COMPANY
Attention: Manager Public Projects
Railway File:
Agency Project:
Exhibit C to Fridley Master Agreement
Gentlemen:
The undersigned (hereinafter called, the "Contractor "), has entered into a contract (the "Contrast ") dated
200_, ( ** *Drafter's Note: insert the date of the contract between the Agency and the Contractor herel with
(Drafter's Note: insert the name of the Agency here the performance of certain work in connection with the following project
Performance of such work will necessarily require contractor to enter BNSF RAILWAY COMPANY
( "Railway ") right of way and property ( "Railway Property"). The Contract provides that no work will be commenced within Railway
Property until the Contractor employed in connection with said work for [insert Agency name here]. _ (i) executes
and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits specified in such
Agreement and Section 3 herein. If this Agreement is executed by a party who is not the Owner, General Partner, President or Vice
President of Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this
Agreement on behalf of Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property and as an
inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby agree with Railway as
follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards, claims,
demands, and expenses (including attorneys' fees), for injury or death to all persons, including Railway's and Contractor's officers and
employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of
Contractor's subcontractors' acts or omissions or any work performed on or about Railway's property S A F AtT f THAT THE
LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF
DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE
NEGLIGENCE CLAIMSWAAYO', PROOXIMASTELY VCAUSEDNBYOTHESINTENTIIONALSENIISCONDUCOT OREXTENT
GR SS
THAT SUCH
NEGLIGENCE OF RAILWAY-
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR
JUDGMENTS BROUGHT AN �ETERPLANAT IC
CLAIMS FOR STRICT HE SAFETY APPLIANCE OR HE BOILER INSPECTION AT,
WHENEVER SO CLALVIED.
Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made
against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or in equity brought against Railway
on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under
this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing, of the receipt
or dependency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the
event of a suit being brought against Railway, Railway may forward summons and complaint or other process in connection therewith e
to Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify, and
harmless Railway from and against all damages, judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting
from or incident to any such claims or suits.
Form 401; Rev. 04126/05
BNSF - FRIDLEY Definite Term Lease — Land 33
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement
survive any termination of this Agreement.
Section 2. TERM
This Agreement is effective from the date of the Contract until (i) the completion of the project set forth herein, and (ii) full
and complete payment to Railway of any and all sums or other amounts owing and due hereunder.
Section 3. INSURANCE
Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement the
following insurance coverage:
A. Commercial General Liability insurance. This insurance must contain broad form contractual liability with a
combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at least $4,000,000.
Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not
limit to the following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy must also contain the following endorsements, which must be indicated on the certificate of insurance:
♦ It is agreed that any workers' compensation exclusion does not apply to Railroad payments related to the
Federal Employers Liability Act or a Railroad Wage Continuation Program or similar programs and any
payments made are deemed not to be either payments made or obligations assumed under any Workers
Compensation, disability benefits, or unemployment compensation law or similar law.
♦ The definition of insured contract must be amended to remove any exclusion or other limitation for any
work being done within 50 feet of railroad property.
♦ Any exclusions related to the explosion, collapse and underground hazards must be removed.
No other endorsements limiting coverage as respects obligations under this Agreement may be included on the policy.
B. Business Automobile Insurance. This insurance must contain a combined single limit of at least $1,000,000 per
occurrence, and include coverage for, but not limited to the following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to:
Coverage B. Employers' Liability with limits of no less than:
$500,000 — Bodily Injury by disease per employee
$500,000 — Bodily Injury by disease aggregate
$500,000 — Bodily Injury by accident
♦ Coverage C: All States Coverage
♦ If applicable, USL&H, and Voluntary
♦ A waiver of subrogation in favor of the Owners
D. Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least $2,000,000
per occurrence and $6,000,000 in the aggregate. The policy Must be issued on a standard ISO form CG 00 35 10 93 and include the
following:
♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to remove any exclusion for punitive damages.
BNSF - FRIDLEY Definite Term Lease — Land 34 Form 401; Rev. 04/26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Railroad prior to performing any work or services under this
Agreement
Other Requirements:
All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of
insurance must reflect that no exclusion exists.
Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its
insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railroad for all claims and
suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery,
and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under
contractor's care, custody or control.
Contractor's insurance policies through policy endorsement, must include wording which states that the policy is primary and
non - contributing with respect to any insurance carried by Railroad. The certificate of insurance must reflect that the above wording is
included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) must include a
severability of interest endorsement and Railroad must be named as an additional insured with respect to work performed under this
agreement. Severability of interest and naming Railroad as additional insured must be indicated on the certificate of insurance.
Contractor is not allowed to self - insure without the prior written consent of Railroad If granted by Railroad, any deductible,
self - insured retention or other financial responsibility for claims must be covered directly by contractor in lieu of insurance. Any and
all Railroad liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by contractor's
insurance will be covered as if contractor elected not to include a deductible, self - insured retention or other financial responsibility for
claims.
Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of insurance including an
original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing
the contract audittfolder number if available. The policy(ies) must contain a provision that obligates the insurance company(ies)
issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non - renewal, substitution or material
alteration. This cancellation provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified
duplicate original of any required policy must be finnished. Contractor should send the certificate(s) to the following address:
BNSF RISK MANAGEMENT
2500 Lou Menk Drive AOB -1
Fort Worth, TX 76131 -2828
Fax: 817 - 352 -7207
Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a current Best's
Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provide.
Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance agent(s)/broker(s), who
have been instructed by contractor to procure the insurance coverage required by this Agreement. Allocated Loss Expense must be in
addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Railroad may reasonably modify the required insurance coverage to reflect
then- current risk management practices in the railroad industry and underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by contractor, contractor must require that the subcontractor provide and
maintain the insurance coverages set forth herein, naming Railroad as an additional insured, and requiring that the subcontractor
release, defend and indemnify Railroad to the same extent and under the same terms and conditions as contractor is required to
release, defend and indemnify Railroad herein.
Failure to provide evidence as required by this section will entitle, but not require, Railroad to terminate this Agreement
immediately. Acceptance of a certificate that does not comply with this section will not operate as a waiver of contractor's obligations
hereunder.
BNSF - FRIDLEY Definite Term Lease — Land 35 Form 401; Rev. 04/26/05
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
The fact that insurance (including, without limitation, self-insurance) is obtained by contractor will not be deemed to release
or diminish the liability of contractor including, without limitation, liability under the indemnity provisions of this Agreement.
Damages recoverable by Railroad will not be limited by the amount of the required insurance coverage.
For purposes of this section, Railroad means `Burlington Northern Santa Fe Corporation ", `BNSF RAILWAY COMPANY"
and the subsidiaries, successors, assigns and affiliates of each.
Section 4. EXHIBIT "C " CONTRACTOR REQUIREMENTS
The Contractor must observe and comply with all provisions, obligations, requirements and limitations contained in the
Contract, and the Contractor Requirements set forth on Exhibit "C" attached to the Contract and this Agreement, , including, but not
be limited to, payment of all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting from
use, occupancy, or presence of its employees, representatives, or agents or subcontractors on or about the construction site.
Section 5. TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies,
and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects
Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as
further provided below,. for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses
and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing
work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay.
For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from
Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight
trains operate under incentive /penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not
meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty
payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually
incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors.
The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay
covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway
confidentiality obligations. Damages for train delay for certain trains may be as high as $50,000.00 per incident.
Contractor and its subcontractors must give Railway's representative C____) weeks advance notice of the
times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the
project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations.
Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional
costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project.
Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as to not cause
any delays to any trains.
BNSF - FRIDLEY Definite Term Lease — Land 36 Form 401; Rev. 04/26105
MEBB: 523141v4
Exhibit C to Fridley Master Agreement
Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this letter,
which, upon execution by Railway, will constitute an Agreement between us.
BNSF Railway Company
(Contractor)
By: By —
Printed Name: Name:
Title:
Contact Person:
Address:
City: _
Fax: _
Phone:
Email:
State: Zip:
Manager Public Projects
Accepted and effective this day of
2007
BNSF - FRIDLEY Definite Term Lease — Land 37 Form 401; Rev. 04/26/05
MEBB: 523141v4
E Exhibit C to Fridley Master Agreement EXHIBIT D
�� • 1'
III V1 an 1
To include only the exhibits from the plans which show the location of the Platform and the cross section of
theplatform showing the top of rail and distance from the center line.
BNSF - FRIDLEY Definite Term Lease — Land 38 Form 401; Rev. 04/26/05
MEBB: 523141v4
C:VS,a p,, lR N 9EEIS\ow Edbb\W03 -&M Mt 73. 207 - Y54M
R
if
I ages8
I e• ®®
L
g
-
salt
Z
Z
O
9
O
C
n
°z
Exhibit C to Fridley Master Agreement
ev. 04/26/05
BNSF - FF ou
MEBB: 523141 v4
Exhibit C to Fridley Master Agreement
MEBB:523141v4 `'v -•••• •- -••
Exhibit C to Fridley Master Agreement
BNSF - FRIDLEY Definite Term Lease — Land 41 Form 401; Rev. 04 /26/05
MEBB: 523141v4
EXHIBIT E Exhibit C to Fridley Master Agreement
OVERPASS AGREEMENT
BNSF - FRIDLEY Definite Term Lease —Land 42
MEBB: 523141v4 Form 401; Rev. 04 /26/05