HRA 05/01/2008 - 6353,)L
May 1, 2008
HRA Meeting
Regular Meeting Agenda
TIME CHANGE TO 7:00 p.m.
City Hall, Council Chambers
Call to order
Roll call.
Action Items
1. Approval of expenditures
2. Approval of March 6, 2008 Meeting Minutes
3. Confirmation of Approval of Rail Station Site Appraisal
4. Gateway NE Authorization to make Purchase Offer
5. Blueprint Homes Development Agreement Extension
6. Consideration of Cost Sharing for Demographic Data
Informational Items
Northstar Rail Project Update
2. Monthly Housing Report
Adjournment
H:\My Documents\HRA\2008 HRA Agendas\May 12008 Agenda Outline.docHWy Documents\HRA\2008 HRA Agendas\May 1
2008 Agenda Outline.doc
CITY OF FRIDLEY
HOUSING AND REDEVELOPMENT AUTHORITY COMMISSION
MARCH 6, 2008
CALL TO ORDER:
Chairperson Pro Tern Holm called the Housing and Redevelopment Authority to order at 7:30
p.m.
ROLL CALL:
Members Present: William Holm
John Meyer
Steve Billings
Members Absent: Larry Commers
Pat Gabel
Others Present: Mike Jeziorski, City Accountant
Paul Bolin, HRA Assistant Executive Director
Jim Casserly, Development Consultant
Richard Pribyl, Finance Director
Molly Hamilton, HRA Attorney
ACTION ITEMS:
1. Approval of Expenditures
MOTION by Commissioner Billings to approve the Expenditures as submitted. Seconded by
Commissioner Meyer.
UPON UNANIMOUS VOICE VOTE, ALL VOTING AYE, CHAIRPERSON PRO TEM
HOLM DECLARED THE MOTION CARRIED
2. Approval of February 7, 2008 Meeting Minutes
Chairperson Pro Tem Holm had noted clarification on pages 4, paragraph 3 and 7.
MOTION by Commissioner Meyer to approve the minutes with the noted corrections.
Seconded by Commissioner Billings.
UPON UNANIMOUS VOICE VOTE, ALL VOTING AYE, CHAIRPERSON PRO TEM
HOLM DECLARED THE MOTION CARRIED
3. Approval of Rail Station Site Appraisal
Paul Bolin, HRA Assistant Executive Director, said that since January I Oh, when the HRA
authorized the acquisition for property necessary for the Northstar Community Rail Station, a
number of tasks have been completed. One of those tasks was an appraisal that was done in
2006. In mid -January the appraisal was updated to reflect the current value and predevelopment
costs. The new appraisal is $3,165,000. The HRA needs to officially approve and accept the
appraisal through a resolution prior to the HRA depositing funds for the acquisition through the
quick take process. Attorney Casserly has provided the HRA a copy of the resolution.
Jim Casserly, Development Consultant, introduced Molly Hamilton who has been working on
this matter and assisting throughout the process.
Molly Hamilton, HRA Attorney, said the reason the next step needs to be taken is because the
HRA is looking to acquire this property through the quick take procedure. This is an expedited
process for exercising the power of eminent domain given the fact that there is a certain time
frame in which the construction needs to begin. Under 117.042, the quick take statue, before the
funds are deposited the appraisal needs to be approved. Tonight this step needs to be covered so
the quick take process can begin. The resolution approving the appraisal was distributed.
Chairperson Pro Tem Holm asked who would receive the deposit for the quick take.
Ms. Hamilton said it would be deposited with the Anoka County Court Administrator and kept
in an interest bearing account until a respondent moves for the funds.
Mr. Casserly said the amount would be deposited by check on or after April 30, 2008 because
that is the earliest the property can be acquired through the use of quick take. The amount of the
deposit would be $3,165,000, which is the amount of the appraisal.
MOTION by Commissioner Billings to approve the resolution approving the rail station site
appraisal as if it were read in its entirety. Seconded by Commissioner Meyer.
UPON UNANIMOUS VOICE VOTE, ALL VOTING AYE, CHAIRPERSON PRO TEM
HOLM DECLARED THE MOTION CARRIED
INFORMATIONAL ITEMS
1. Northstar Rail Project Update
Jim Casserly, Development Consultant, said that this has been occurring very rapidly. A memo
was sent out on February 29 that provided a status update as to what is going on with the site.
The memo also talks about the condemnation hearing that took place last week.
Molly Hamilton, HRA Attorney, said that the hearing was seeking court approval of the
petition. Counsel was present contesting the petition. Three witnesses were called and were able
to testify on the allegations that arose regarding the petition as well as the issue of the Northstar
project. The respondent did ask for additional time to gather information and the next hearing is
on March 11 `h. Continuing arguments will be heard from both sides as to why the petition
should or should not be approved.
Chairperson Pro Tem Holm said that he read the memorandum and it appeared that the
attorney for the owner of the property wanted to have more information about the authority for
this condemnation. He asked if there were any other issues.
Ms. Hamilton said that the main issue was the authority because this is an acquisition done in
conjunction with some other entities. There were some questions about who is the condemning
authority and whose authority is relied on. It is our position that the HRA has its own authority
to do this as well as the authority with Anoka County Rail Authority and MnDOT. Issues of
public purpose of whether the HRA has a redevelopment project were also discussed.
Paul Bolin, HRA Assistant Executive Director, said that a hearing on the tax increment bill the
HRA asked for last legislative session will be heard before the senate taxes committee. Some
disheartening news was received about the bonding bill request that the County Regional Rail
Authority has been working on. The bills that ended up going forward did not include the
funding for Northstar. Northstar is up on everyone's radar and there is a possibility to get back
in later this session or next year in another bill. People are aware of the difficulties and the gap
that does exist to get the station built. The only bills that moved forward were bills and projects
that were in the proposed bonding bill last year.
Mr. Casserly said that our tax increment legislation that was vetoed last year is included. A
number of issues which are non controversial are included in the bill. This should be approved
in the next week or two. The language.in this tax bill is good as it allows us to use resources
from three of our tax increment districts. It also allowed us to create a tax increment district that
included a large area around the Fridley station. We would like to amend the language in this
bill to state that the very large area should be defined as a project with the ability to create a
number of tax increment districts. As it is worded now, it would be a single tax increment
district and that is not how it will be developed. Even though a tax increment will not be created
this year, it would be helpful to amend the language. This would give the area more flexibility to
create a number of districts, all which can pool within that single project. In regards to the
bonding bill, that is a story that is still unfolding. A lot of things will happen between now and
the time the legislature adjourns and there may be an opportunity to get a portion of the funds,
which in itself would be extremely helpful.
2. Gateway NE Update
Paul Bolin, HRA Assistant Executive Director, stated that he received a call from Dan Wilson
and the property owner of the former Sinclair Station has verbally accepted the offer that was
made last Friday. This included the appraised value plus relocation benefits for the tenant. This
is moving forward and the purchase agreement does provide for HRA to get on the site to get
some soil borings to do an environmental review. The vehicles and personal property must be
removed before the closing. The Tae- Kwan-Do site owners, the Kims, are in discussion with
Dan Wilson over value. The Kims value is higher than the appraisal value but they have not
come forward with a formal response or counter offer. The Alano Society has come forward and
asked if the HRA was interested in their building. A walk thru for the appraisal was completed
this week.
3. Monthly Housing Report
Paul Bolin, HRA Assistant Executive Director, said that in February one revolving loan was
closed on and HRA may see a spike in loans in March. A lot of applications were sent out in
February and flyers have been mailed out and distributed at the Home and Garden Show to
promote this program. Remodeling Advisor had one visit and more are set up for March.
NON - AGENDA UPDATE
Paul Bolin, HRA Assistant Executive Director, said that Mr. Fogerty, owner of the Columbia
Arena, has agreed to sell the east side of the area to a candy factory. This will make it difficult to
split the rest of the building to get the density needed for any housing on site. The original plan
was to use the entire site for a senior campus that would include independent living, assisted
living, memory care and traditional nursing home. The Greco Group wanted some tax increment
financing and needed a rezoning and a replat. They were not able to get those things done in the
time frame given by Mr. Fogerty so the sale did not go through.
ADJOURNMENT:
MOTION by Commissioner Billings to adjourn. Seconded by Commissioner Meyer.
UPON UNANIMOUS VOICE VOTE, ALL VOTING AYE, CHAIRPERSON PRO TEM
HOLM DECLARED THE MOTION CARRIED AND THE MEETING ADJOURNED AT
8:05 P.M.
NON AGENDA ITEMS
1. Target -NOC, Onan- Cummins Building
2. John Allen Project — 5510 Main Street
3. Gateway West
ADJOURNMENT
MOTION by Commissioner Meyers to adjourn. Seconded by Commissioner Gabel.
UPON UNANIMOUS VOICE VOTE, ALL VOTING AYE, CHAIRPERSON COMMERS
DECLARED THE MOTION CARRIED AND THE MEETING ADJOURNED AT 8:40
P.M.
Respectfully submitted,
czwl
KA�� YM V11--
Krista Monsrud
Recording Secretary
A
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t]7Y OF
FRUXEY
ACTION ITEM
HRA MEETING OF MAY 11 2008
Date: April 24, 2008
To: William Burns, City Manager
From: Paul Bolin, Asst. Executive HRA Director
Scott Hickok, Community Development Director
Subject: Ratification of Action Taken By HRA on March 6, 2008
RE: Northstar Rail Property Appraisal & Acquisition
As part of the legal requirements to move forward with the potential condemnation of
the property needed for the Northstar Station, statutes require that the HRA officially
approve and accept the appraisal, through resolution, prior to depositing funds for the
acquisition.
A resolution accepting the appraisal was unanimously approved at the March 6, 2008
HRA Meeting by the members present. It was suggested by one member that the
adoption of the Resolution, approving the appraisal, be ratified through a motion of the
entire HRA Commission at their April meeting.
A copy of the already adopted resolution is included.
EXTRACT OF MINUTES OF MEETING OF THE
HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF
FRIDLEY, MINNESOTA
Pursuant to due call and notice thereof, a regular meeting of the Housing and Redevelopment
Authority in and for the City of Fridley, County of Anoka, Minnesota, was held on the 6th day of
March, 2008, at
The following members were present:
Commissioner
introduced the following resolution and moved its adoption:
RESOLUTION NO.
RESOLUTION APPROVING APPRAISAL OF CERTAIN
PROPERTY TO BE ACQUIRED BY THE HOUSING AND
REDEVELOPMENT AUTHORITY AND AUTHORIZING
QUICK -TAKE DEPOSIT
BE IT RESOLVED by the Housing and Redevelopment Authority in and for the City of Fridley,
Minnesota (the "HRA "), as follows:
Section 1. Recitals.
1.01 The HRA has adopted its Resolution No. 2008 -01 on January 10, a true and
correct copy of which is attached hereto as Exhibit A, and incorporated herein by reference.
1.02 In its Resolution No. 2008 -01, the HRA found that acquisition of the property
identified in Exhibit B, attached hereto and incorporated herein by reference, for the
establishment of a Fridley commuter rail station and related facilities will serve a public purpose
and further the goals and objectives of the HRA.
1.03 In its Resolution No. 2008 -01, the HRA authorized the acquisition of the property
identified in Exhibit B for public use by negotiation or by eminent domain under Minn. Stat. §
117.01 et seq.
1.04 The acquisition authorized in Resolution No. 2008 -01 is done in conjunction with
the State of Minnesota, by and through its Department of Transportation, the Anoka County
Regional Railroad Authority, and Burlington Northern Santa Fe Railway Company.
1.05 Pursuant to Minn. Stat. § 117.036 and in conjunction with its proposed acquisition
of the property, the HRA obtained an appraisal, which is attached hereto as Exhibit C and
incorporated herein by reference.
1.06 In order to timely commence construction on the Fridley commuter rail station
and related facilities, including an underpass tunnel, the HRA also authorized acquisition by the
"quick take" process provided for in Minn. Stat. § 117.042. Minn. Stat. § 117.042 provides for a
deposit of the amount of an approved appraisal with the Court Administrator at some time
subsequent to 90 days from the service of notice of intent to take possession.
Section 2. Findings.
2.01 The Recitals in Section 1 are hereby adopted as Findings; moreover,
2.02 The appraisal attached as Exhibit C describes the market value of the property
identified in Exhibit B and is certified to be in accordance with the appraisal requirements of the
Uniform Standards of Professional Appraisal Practice and the Minnesota Department of
Transportation, and governing appraisal ethics and standards;
2.03 The appraisal amount of $3,165,000.00 represents market value of the property as
of January 17, 2008.
Section 3. Authorization.
3.01 Pursuant to the above fmdings, the HRA does hereby approve the appraisal
attached hereto as Exhibit C, and directs its staff to facilitate the deposit of the appraisal amount
of $3,165,000.00 with the Anoka County Court Administrator on or after April 30, 2008.
Adopted by the HRA this day of .2008.
The motion for the adoption of the foregoing resolution was duly seconded by Commissioner
and, upon vote being taken thereon, the following voted in favor
thereof:
and the following voted against:
WHEREUPON said resolution was declared duly passed and adopted and was signed by the
Chairperson and attested to by the Executive Director.
Chairperson Lawrence R. Commers
2
ATTEST:
Executive Director
CERTIFICATION
I, , the duly qualified Executive Director of the Housing and
Redevelopment Authority in and for the City of Fridley, County of Anoka, Minnesota, hereby
certify that the foregoing is a true and correct copy of Resolution No. passed by the
HRA Commissioners on the day of , 2008.
William W. Burns, Executive Director
G:\ WPDATATTRIDLEY\71\DOC\RE$OLUTION APPROVING APPRAISAL 3- 6- 08.130C
3
ACTION ITEM
HRA MEETING OF MAY 11 2008
CITY of
FRIDLEY
Date: April 24, 2008
To: William Burns, City Manager
From: Paul Bolin, Asst. Executive HRA Director
Scott Hickok, Community Development Director
Subiect: Gateway Northeast Property Acquisition Update
Sinclair Station - Update
After many months of wrangling, just this morning, we finally received a signed
purchase agreement for the Sinclair Station. We will likely close on this property
towards the end of May. We plan to have Liesch Associates drill some investigative
borings prior to closing on the property and have built in provisions to provide us an out
if the site is extremely contaminated.
There is currently cleanup money available from the Petrofund to assist in clean up of
any contamination found on the site.
Tae - Kwan -Do - Update
This month's update on the TKD Center could easily be — "SEE LAST MONTHS
UPDATE ". Dan Wilson has had ongoing talks with the property owner and a
broker /realtor he now has representing him.
Alano Society
Paul Schwartz, appraiser, had a chance to complete the appraisal of the Alano Society
building located at 5925 University Avenue. Due to the large lot size (nearly 1 acre), the
size of the building (7,000 sq. ft.), and the age of the building (constructed in 1989), the
property has a high market value, $805,000. The City Assessor had valued the site at
$865,000 for 2008, down from a value of $874,000 in 2007.
As there appears to be a willing seller and very minor relocation benefits, staff
recommends the HRA offer to purchase the property for the appraised market value of
$805,000. Acquisition of this property adds nearly 1 acre to the project area of a future
redevelopment. Combined with the newer Van -o -lite building immediately north of this
site, there may be enough land area to initiate a redevelopment for a medical clinic,
senior building or other use.
ri
C:iIY OF
FRIDLEY
ACTION ITEM
HRA MEETING OF MAY 11 2008
Date: March 28, 2008
To: William Burns, City Manager
From: Paul Bolin, Asst. -Executive HRA Director
Scott Hickok, Community Development Director
Subiect: Gateway West Development Agreement — Terms Extension
Despite Blueprint's continued optimism and interest from buyers, the severe slowdown
in the housing market, has temporarily stalled our project and we recommend updating
our development agreement to reflect these market realities.
Blueprint is currently in negotiations with 4 potential homeowners, generated by the
Parade of Homes. Blueprint feels very strongly that two of the potential owners will
move forward in the next few months.
Attorney Cerney has prepared a simple extension to the timeline contained in the
existing development agreement. A copy showing these changes has been attached to
this memorandum. Blueprint Homes has not raised any objections to these changes.
Following is a brief summary of the changes:
• The HRA is very aware that the housing market slump has impacted sales, and
so the deadline for Blueprint.to acquire all the lots has been extended to Dec. 31,
2009. The requirements that Blueprint purchase at least 2 lots at a time and that
Blueprint buy lots at least quarterly have been eliminated. Now there's just one
deadline at the end.
• The deadline for Blueprint to construct the- homes on those lots was extended to
Dec. 31, 2010.
At each lot closing, Blueprint will be required to pay a deposit of $5,000 /lot to
cover the landscaping required by Schedule E of the Contract. The deposit will
be refunded once the landscaping is complete. The purpose of this is not
intended to increase Blueprint's costs, but rather to insure that the landscaping
required by the contract is completed.
FIRST AMENDMENT TO
CONTRACT FOR PRIVATE DEVELOPMENT
This First Amendment to Contract ( "First Amendment ") is made as of the
day of , 2008 by and between the Housing and Redevelopment Authority in
and for the City of Fridley, Minnesota (the "Authority") and Blueprint Homes, Inc., a
Minnesota corporation (the "Redeveloper ").
WHEREAS, the Authority and the Redeveloper entered into a Contract for
Private Redevelopment dated as of June 21, 2006 (the "Contract "), which among other
things required the construction of 16 single - family homes on the Redevelopment
Property;
WHEREAS, as of the date hereof, the Redeveloper has purchased and
constructed homes on seven of the home lots;
WHEREAS, the Authority and the Redeveloper wish to extend the deadline dates
set forth in the Contract for purchase by the Redeveloper of the remaining home lots and
construction of homes thereon, and to make certain other changes in the Contract; and
WHEREAS, the Authority and the Redeveloper hereby reaffirm the terms of the
Contract but also desire to amend the Contract to further the purposes set forth therein.
NOW, THEREFORE, in consideration of the premises and the mutual
obligations of the parties, the parties hereby agree as follows:
Section 1. Subsection (d) of Section 3.1 of the Contract is hereby amended to
read as follows:
(d) Conveyance, Purchase Price and Closings. Subject to the
terms of this Agreement, the Authority agrees to sell and the Redeveloper
agrees to purchase the Redevelopment Property for the Purchase Price.
The Authority shall execute and deliver to the Redeveloper a
Redevelopment Property Deed at each Closing for that home lot or those
home lots which the Redeveloper has indicated that it wishes to purchase
at that Closing. The conveyance of title to each portion of the
Redevelopment Property pursuant to the Redevelopment Property Deed
shall be subject to . all of the conditions, covenants, restrictions and
limitations imposed by this Agreement and the Redevelopment Property
Deed. The Redeveloper shall promptly record each Redevelopment
Property Deed.
Each Closing shall take place at the principal offices of the Authority
unless the parties mutually agree in writing that the Closing shall take
place at another location. All of the Closings shall occur by December
31, 2009.
The Purchase Price of $43,750 for each home lot shall be paid at each
Closing together with a deposit in the amount of $5,000 per home. lot.
For each home lot, the Authority will refund the deposit, without interest,
upon completion by the Redeveloper of the landscaping referenced on
Schedule E.
Section 2. Subsection (b) of Section 4.2 of the Contract is hereby amended to
read as follows:
(b) The Minimum Improvements consist of sixteen (16) for -
sale single - family homes. The Redeveloper shall use its best efforts to
cause the unit sales prices of all homes to average approximately
$300,000. Floor plans and home designs will be. consistent with the plans
included in the Redeveloper's response to the Authority's Request for
Proposals. The quality of the Minimum Improvements shall be
comparable to or better than that currently being constructed by the
Redeveloper at its projects in Hugo, Blaine, and Oak Grove. The
Redeveloper shall construct the Minimum Improvements in accordance
with the Construction Plans approved by the Authority. Subject to
Unavoidable Delays, Redeveloper shall begin construction on or about
July 1, 2006 and shall complete construction on or about December 31,
2008 2010. In the event the nu4hefity fails to plate the Publ e
> 2006, the afer-emenfie
m4thout penalty.
Section 3. First Amendment Supercedes Contract. The terms and conditions of
this First Amendment shall supercede any conflicting provisions contained in the
Contract. Any provisions of the Contract not amended or otherwise in conflict with the
terms and conditions of this First Amendment shall remain in full force and effect.
Section 4. Miscellaneous. Any capitalized terms not defined in this First
Amendment shall have the respective meanings ascribed to them in the Contract. This
First Amendment shall be governed by the laws of the State of Minnesota. The various
captions and headings in this First Amendment are for convenience of reference only and
shall not be considered when interpreting any provision of this First Amendment. This
First Amendment may only be modified by a written modification signed by both parties.
This First Amendment may be executed in counterparts, each of which shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this First Amendment to the Contract
for Private Redevelopment to be duly executed as of the date first written above.
G : \WPDATA \F\FRIDLEY\61\DOC\FIRST AMENDMENT TO CONTRACT V1 RED.DOC
Dated: , 2008
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
FRIDLEY, MINNESOTA
By
Its Chairman
By
Its Executive Director
STATE OF MINNESOTA )
)ss
COUNTY OF )
On this day of ' 20 before me, a Notary Public, personally
appeared Lawrence E. Comm ers and William W. Burns, to me personally known who by
me duly sworn, did say that they are the Chairman and Executive Director, respectively,
of the Housing and Redevelopment Authority in and for the City of Fridley, Minnesota, a
political subdivision of the State of Minnesota, and acknowledged the foregoing
instrument on behalf of said authority.
Notary Public
Authority Signature Page - First Amendment to
Contract for Private Redevelopment
Dated: , 2008
BLUEPRINT HOMES, INC.
By
Its
STATE OF MINNESOTA )
)ss
COUNTY OF )
On this day of 1202 _
personally appeared , the
Homes, Inc., a Minnesota* corporation, and acknowledged
behalf of said corporation.
before me, a Notary Public,
of Blueprint
the foregoing instrument on
Notary Public
Redeveloper Signature Page - First Amendment to
Contract for Private Redevelopment
FIRST AMENDMENT TO
CONTRACT FOR PRIVATE DEVELOPMENT
This First Amendment to Contract ( "First Amendment") is made as of the
day of , 2008 by and between the Housing and Redevelopment Authority in
and for the City of Fridley, Minnesota (the "Authority") and Blueprint Homes, Inc., a
Minnesota corporation (the "Redeveloper ").
WHEREAS, the Authority and the Redeveloper entered into a Contract for
Private Redevelopment dated as of June 21, 2006 (the "Contract "), which among other
things required the construction of 16 single - family homes on the Redevelopment
Property;
WHEREAS, as of the date hereof, the Redeveloper has purchased and
constructed homes on seven of the home lots;
WHEREAS, the Authority and the Redeveloper wish to extend the deadline dates
set forth in the Contract for purchase by the Redeveloper of the remaining home lots and
construction of homes thereon, and to make certain other changes in the Contract; and
WHEREAS, the Authority and the Redeveloper hereby reaffirm the terms of the
Contract but also desire to amend the Contract to further the purposes set forth therein.
NOW, THEREFORE, in consideration of the premises and the mutual
obligations of the parties, the parties hereby agree as follows:
Section 1. Subsection (d) of Section 3.1 of the Contract is hereby amended to
read as follows:
(d) Conveyance, Purchase Price and Closings. Subject to the
terms of this Agreement, the Authority agrees to sell and the Redeveloper
agrees to purchase the Redevelopment Property for the Purchase Price.
The Authority shall execute and deliver to the Redeveloper a
Redevelopment Property Deed at each Closing for that home lot or those
home lots which the Redeveloper has indicated that it wishes to purchase
at that Closing. The conveyance of title to each portion of the
Redevelopment Property pursuant to the Redevelopment Property Deed
shall be subject to all of the conditions, covenants, restrictions and
limitations imposed by this Agreement and the Redevelopment Property
Deed. The Redeveloper shall promptly record each Redevelopment
Property Deed.
Each Closing shall take place at the principal offices of the Authority
unless the parties mutually agree in writing that the Closing shall take
place at another location. All of the Closings shall occur by December
31, 2009.
The Purchase Price of $43,750 for each home lot shall be paid at each
Closing together with a deposit in the amount of $5,000 per home lot.
For each home lot, the Authority will refund the deposit, without interest,
upon completion by the Redeveloper of the landscaping referenced on
Schedule E.
Section 2. Subsection (b) of Section 4.2 of the Contract is hereby amended to
read as follows:
(b) The Minimum Improvements consist of sixteen (16) for -
sale single - family homes. The Redeveloper shall use its best efforts to
cause the unit sales prices of all homes to average approximately
$300,000. Floor plans and home designs will be consistent with the plans
included in the Redeveloper's response to the Authority's Request for
Proposals. The quality of the Minimum Improvements shall be
comparable to or better than that currently being constructed by the
Redeveloper at its projects in Hugo, Blaine, and Oak Grove. The
Redeveloper shall construct the Minimum Improvements in accordance
with the Construction Plans approved by the Authority. Subject to
Unavoidable Delays, Redeveloper shall begin construction on or about
July 1, 2006 and shall complete construction on or about December 31,
2010.
Section 3. First Amendment Suvercedes Contract. The terms and conditions of
this First Amendment shall supercede any conflicting provisions contained in the
Contract. Any provisions of the Contract not amended or otherwise in conflict with the
terms and conditions of this First Amendment shall remain in full force and effect.
Section 4. Miscellaneous. Any capitalized terms not defined in this First
Amendment shall have the respective meanings ascribed to them in the Contract. This
First Amendment shall be governed by the laws of the State of Minnesota. The various
captions and headings in this First Amendment are for convenience of reference only and
shall not be considered when interpreting any provision of this First Amendment. This
First Amendment may only be modified by a written modification signed by both parties.
This First Amendment may be executed in counterparts, each of which shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this First Amendment to the Contract
for Private Redevelopment to be duly executed as of the date first written above.
G :\WPDATA\F\FRIDLEY\61\DOC\FIRST AMENDMENT TO CONTRACT V1.DOC
Dated: , 2008
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
FRIDLEY, MINNESOTA
By
Its Chairman
By
Its Executive Director
STATE OF MINNESOTA )
)ss
COUNTY OF )
On this day of , 20_ before me, a Notary Public, personally
appeared Lawrence E. Commers and William W. Burns, to me personally known who by
me duly sworn, did say that they are the Chairman and Executive Director, respectively,
of the Housing and Redevelopment Authority in and for the City of Fridley, Minnesota, a
political subdivision of the State of Minnesota, and acknowledged the foregoing
instrument on behalf of said authority.
Notary Public
Authority Signature Page - First Amendment to
Contract for Private Redevelopment
Dated: , 2008
BLUEPRINT HOMES, INC.
By
Its
STATE OF MINNESOTA )
)ss
COUNTY OF )
On this day of , 20_, before me, a Notary Public,
personally appeared , the of Blueprint
Homes, Inc., a Minnesota corporation, and acknowledged the foregoing instrument on
behalf of said corporation.
Notary Public
Redeveloper Signature Page - First Amendment to
Contract for Private Redevelopment
COMMUNITY DEVELOPMENT
DEPARTMENT
DEVELOPMENT DIRECTOR
Memorandum
DATE: April 25, 2008
TO: William W. Burns, Executive Director
Paul Bolin, Asst. Executive Director
FROM: Scott J. Hickok, Community Development Director
SUBJECT: Cost Sharing for Updated Demographic Data
The Community development staff would like to request the Housing and
Redevelopment Authorities consideration of a $2718.75 contribution (half of the cost of
a 2008 contract) with Excensus, LLC, to provide updated demographic data for Fridley.
The other half will be shared by Community Development.
As you may recall we have had an on -going working relationship with Excensus, LLC
Demographics. In 2001 Excensus provided the demographic data for the Joint
Columbia Heights/ Fridley Study of the development impacts of Medtronic's World
Headquarters. In 2006 we again utilized Excensus's services to gather demographic
data for our comprehensive plan. We believe Excensus has by far the industry's best
approach to data analysis and presentation materials. Their services allow us to better
understand our marketplace thereby helping to better plan for housing demands,
redevelopment demands, economic development demands, parks and recreation
demands, and demands on our roadways. Keeping the data current is important to our
on -going efforts.
The cost of this contract in 2006 was based on a $1.05 per household figure or a total of
$11,789.00. A $5894.50 contribution was authorized by the HRA at that time. To
maintain the data now on an annual basis will be approximately half of the price of that
original contract.
Staff Recommendation
Staff recommends that the HRA consider a $2718.75 contribution to the cost of
updating our demographic data expenses and authorize the chair to execute the
contract.
EX(ENSUS111
INVOICE
City of Fridley Invoice No.: MD_FRI08
c/o Scott Hickok, Community Development Director Invoice Date: February 27, 2008
6431 University Avenue NE Billing Period: 2008 Subscription
Fridley, Minnesota 55432
Excensuim Select Demographics Subscription #EXSD FRI08
Excensus Contact: John Carpenter, President
Excensus LLC
17258 Jasper Ct
Lakeville, MN 55044
Phone: 952 -892 -6622
Email: iohnQ)excensus.com
Summary of Charges
Excensugm Selection Demographics 2008 Subscription
Subscription Agreement dated January 27, 2008
(Calculated at $2,500 setup plus $0.25 per household) ................... $ 5,437.50
Per agreement, payment is due and payable within ten (10) days. Thank you for your business.
We look forward to serving you.
John Carpenter, President
Excensus LLC
17258 Jasper Ct • Lakeville, MN 55044
Phone/Fax: 952.892.6622
EzcensusTM Select Demographics
2008 Subscription Agreement
Subscriber (Organization/Deparlment Name) ............. City of Fridley, N6nnesota
Full Mailing Address . ............................... 6431 University Ave. NE
Fridley, MN 55432
Name and Title of Primary Contact ..................... Scott Hickok, Community Dev. Director
Contact Telephone Number ........................... (763) 572 -3590
Number of Households .............................. 11,750 (Excensus 2007)
2008 Base Subscription Price ......................... $5,437.50
User License No ..... ............................... EXSD FRI08
Subscription Effective Date ......................... February 27, 2008
Subscription End Date ............................... February 26, 2009
Approved 3'd Party User ............................. NA
Organization/Department Name ....................... NA
Full Mailing Address ............................... NA
THIS SUBSCRIPTION/LICENSE AGREEMENT GOVERNS All USE OF EXCENSUSTm SELECT
PRODUCTS AND SERVICES. PLEASE READ CAREFULLY.
1. Subscrintion
The undersigned agree to this Subscription Agreement and the terms and conditions set forth herein and as a
condition to granting permission to use Excensusm Select Products and Services (defined below). Use of these
products and services are subject to this Subscription Agreement.
2. Products and Services List. Excensusm Select Products and Services are identified in the list blow which
may be expanded by mutually executed addendum hereto:
a) ExcensusTm Select Twin Cities Demogmpbic Tracking Svstem — A proprietary, block -level information
system containing current demographic profiles of residents in the Twin Cities 7 -County Metropolitan Area
along with five years of historical tracking data showing demographic changes by geographic area,
demographic segment, and type of residential dwelling. The component data sets that comprise this system
are governed by data privacy and/or confidentiality rules. SUBSCRIBERS have access to summary level
data sets, reports, maps, and GIS shape files as determined and produced by LICENSOR-
b) Excensuirm Select 2008 Demographic Change Report — An annual report that describes the demographic
and housing related changes occurring in a subscriber's geographic area and across the 7- county Twin
Cities area. This report permits SUBSCRIBERS to monitor current demographic changes within their
community and assess how these changes will impact future growth patterns, housing and service needs,
and overall economic stability.
c) Excensus'm Select Demographic Consulting — Custom analyses and reports, commissioned by
SUBSCRIBERS, utilizing the ExcensusTM Select Twin Cities demographic tracking system. A total of 6
hours of LICENSOR staff consulting time is included in the base subscription price. SUBSCRIBER and
LICENSOR may agree to additional consulting hours at LICENSOR'S standard consulting rate of $90 per
hour. Additional consulting services may be added at any time by agreement of both parties and included
as an addendum to this agreement.
d) ExcensusTM Select Online (available in 2008 at option of LICENSOR) — A proprietary, Internet-based
mapping system that enables SUBSCRIBERS to define custom study area geographies and produce
associated demographic maps and reports. This product is currently in development by LICENSOR and
may be provided for SUBSCRIBER use in 2008 solely at the discretion of LICENSOR
EXSD FRI08 (version 2.2)
e) Excensusm Select User Grouu — A forum for SUBSCRIBERS to share findings and community
applications developed using Excensusrm Select Products and Services and also receive training and
technical support on Excensugm Select Products and Services.
3. Definitions. Capitalized terms used in this Agreement will have the following meanings:
(a) "Excensus' Select Products and Services" means the demographic products and services identified in
section 2 ( the "Products and Services List') or in any mutually signed addendum to this agreement and
intended for use by SUBSCRIBER in its ordinary course of business.
(b) "Consulting Data" means any trade secrets, technology, know -how, data formats or other information that
is proprietary and confidential to LICENSOR
(c) " Data" means the reports, maps and digital data products and services identified in the Product and
Services List and any updates thereto provided pursuant to this Agreement
(d) "Data Documentation" means any documentation, procure manuals and written materials relating to the
Data which LICENSOR provides to SUBSCRIBER dining the term of this Agreement.
(e) "Data Products" means the Data and the Data Documentation
(f) "Documentation" means the Data Documentation and the Software Documentation
(g) "Effective Date" means the date when this Subscription Agreement is delivered to SUBSCRIBER by
LICENSOR
(h) "End User Agreemenf' means LICENSOWs then- standard form of click. -wrap end user license agreement
for any LICENSOR Products and Services which shall be essentially similar to the restrictions herein.
(i) "LICENSOR" means Excensus LLC, a Minnesota Limited Liability Company looted at 17258 Jasper
Court, in Lakeville, eta, 55044 and any successors thereto.
0) "Products and Services" means the Data Products, Consulting Data, and the Software Products.
(k) "Proprietary Rights" means all patents, patent applications, trade secrets, copyrights, trademarks and
service marks, know— how, confidential information and other proprietary rights, worldwide.
(1) "Site" means a SUBSCRIBER public school district, city, county, or other governmental entity, and its
departments and divisions, including individual school locations and administrative offices.
(m) "Software" means the object code version of the mapping and reporting software for the Data set forth in
the Product and Services List and any updates thereto provided pursuant to this Agreement.
(n) "Software Documentation" means any instructions, documentation, procedure manuals and written
application materials relating to the Software which LICENSOR may provide to SUBSCRIBER during the
term of this Agreement
(o) "Software Products" means the Software and Software Documentation
(p) "SUBSCRIBER(S)" means an approved organization, business or agency that has agreed to the terms of
this agreement, formally signed the agreement, and paid all subscription fees as set forth in this agreement.
(q) "Term" means the period of time that SUBSCRIBER is granted access to Excensugm Select Products and
Services.
4. Title; License Restrictions (Products and Services). Title to and ownership of ExcensusTM Select Products
and Services together with any copies (in whole or in part) thereof; all modifications and derivative works
thereto, and all Proprietary Rights therein, is and shall remain the property of LICENSOR or its suppliers, as the
case may be LICENSOR hereby grants SUBSCRIBER a license to use the Products during the Term subject
to the following restrictions:
(a) Use of ExcensusTM Select Products and Services is permitted in the ordinary course of SUBSCRIBER'S
business and such products shall not be used directly or indirectly on behalf of any other individual,
agency, firm, corporation or enterprise. SUBSCRIBER shall not distribute, deliver, provide access to
(whether on -site or through remote communications), or otherwise make available digital Data Products or
Software Products to any third parties without prior written permission from LICENSOR
(b) While not a regwW deliverable, LICENSOR may choose to distribute Exc enmTM Select Products and
Services to SUBSCRIBER using a proprietary, Internet -based mapping software system, herein named
"Excensus`rm Select Online." Where available, SUBSCRIBER may use these Software Products to develop
EXSD FRI08 (version 2.2) 2
graphic displays, maps, tables, graphs, reports, summary tabular listings and/or other digital graphic display
products and hard copy products for purposes stated herein but such products shall not be made available
for public use in a way that reproduces or mimics the contents or functionality of the ExcensusTm Select
Online application, its maps, modules or interface or permits another to so reproduce or mimic. Any and
all such displays, maps, tables, graphs, or reports etc. produced by SUBSCRIBER and derived from use of
Excensus Select Online shall prominently display a legend in at least 8 point font stating that "This
information was obtained by use of ExcensusTM Select Online and licensed from Excensus LLC of
Lakeville, MN'.
(c) Except as expressly authorized by LICENSOR in writing, SUBSCRIBER will not utilize any part of the
Data, Software Products, or Confidential Information of LICENSOR on behalf of any third party or
otherwise: (1) to reformat any LICENSOR Data Product; (2) to extract data from any LICENSOR Data
Product; (3) to analyze or reverse engineer any LICENSOR Software or file formats; or (4) for any other
purpose not specifically permitted under this Agreement..
(d) Except as otherwise provided herein or in the Product and Service List, SUBSCRIBER shall not copy or
reproduce Data Products or incorporate (or " skin") ExcensusTM Select Online in any form or as part of any
Internet website.
(e) SUBSCRIBER specifically agrees that it will not translate, disassemble, decompile or reverse engineer the
Data Products, Software Products, or Confidential Consulting Data.
(f) SUBSCRIBER agrees to implement appropriate procedures to prevent unauthorized disclosure of licensed
ExcensusTM Select Products and Services and to restrict access to codes and passwords obtained hereunder.
5. Subscriber Data Sharing:
5.1 Subscriber Data Sharing is the sharing of public data under control of a SUBSCRIBER for the purpose of
incorporated (in summary or in derivative form) said data into Excensus7m Select Products and Services for the
common benefit of participating SUBSCRIBERS. Data sets that LICENSOR will need to achieve this benefit
include, but may not be limited to, student census data, utility connect data, rental housing licensing data,
residential building permit data, and new housing development data. SUBSCRIBER agrees to provide access to
SUBSCRIBER-managed data and datasets in a standard database format promptly after execution of this
Subscription Agreement where the data exists and can be shared under the controlled provisions of this
Subscription Agreement without violation of explicit state or federal privacy laws and data sharing regulations.
5.2 LICENSOR agrees to all associated database security and privacy protection rules as set forth in Federal
and State data practices laws and regulations. Further, LICENSOR shall incorporate such shared data into the
ExcensusTM Select Products and Services within six months after receipt from SUBSCRIBER except where
LICENSOR, following testing, deems the shared data unsuitable for use in ExcensusTM Select Products and
Services.
6. Fees and Increases:
6.1 SUBSCRIBER pricing ("Fees") is based on an annual setup fee and the total number of households within
each subscriber's geographic coverage area Fees for 2008 SUBSCRIBERS include an annual setup fee of
$2,500 plus $0.25 per household. These Fees are subject to change annually by LICENSOR based on historical
costs and planned product or service enhancements subject to limits in 6.2 below. The household count used in
calculating first year costs is determined by LICENSOR using the largest and most current published
Metropolitan Council, City or US Census Bureau estimate as of the subscription date. Renewal year households
will be determined by the counts produced. by LICENSOR for the previous subscription year profiles and
Licensor shall give 60 days advance written notice thereof prior to renewal.
6.2 Notwithstanding the foregoing, (1) a minimum subscription fee of $4,000 applies to smaller
SUBSCRIBERS areas where household counts fall below 6,000 and (2) LICENSOR may not impose any such
annual increase that would exceed five percent (5 %) without consent of SUBSCRIBER, which consent shall not
be unreasonably withheld, and provided however that if consent is withheld then LICENSOR may avoid
automatic renewal on the next succeeding renewal date by giving thirty (30) days notice .
EXSD FRI08 (version 2.2)
6.3 The annual Subscription Fee is due and payable within ten (10) days of the date that a fully executed copy
of this Agreement is delivered to each party ("Subscription Agreement Execution Date"). All late payments
shall bear interest at the rate of 12% per annum or the highest permissible legal rate whichever is less.
7. Limited Warranties.
7.1 No Warranty on Data All Data Products are derived and/or modeled from information supplied by the
government and other suppliers and is provided to SUBSCRIBER on an "AS IS" basis. ALTHOUGH
LICENSOR WILL USE REASONABLE COMMERCIAL EFFORTS TO ENSURE THE ACCURACY OF
THE DATA AND INFORMATION COMPRISING THE DATA PRODUCTS, NEITHER LICENSOR NOR
ITS SUPPLIERS MAKE ANY REPRESENTATIONS, WARRANTIES (EXPRESS, IMPLIED OR
STATUTORY) OR COVENANTS WITH RESPECT TO THE CONDITION, QUALITY, COMPLETENESS,
TIlVIELINESS, ACCURACY, PERFORMANCE, CORRECTNESS, DURABILITY, THMELINESS, DESIGN
OR SUITABILITY OF DATA.
7.2 Limited Warranty for Software. LICENSOR warrants that data distribution software, when available from
LICENSOR, will perform substantially in compliance with the then - current relevant Software Documentation
during the Subscription term ("Software Warranty Period"), subject to the limitations and disclaimer set forth
herein. If the Software is discovered not to perform substantially in accordance with such Software
Documentation, and SUBSCRIBER reports such failure to LICENSOR during the Software Warranty Period,
LICENSOR will use reasonable commercial efforts to provide SUBSCRIBER with a correction or a
workaround for such failure or, at LICENSOR's option, ExcensusTm Select Products and Services may be
delivered using other industry accepted, hardcopy or digital formatted media.
7.3 Disclaimer of Warranties No provision of this Agreement obligates or shall be construed to obligate
LICENSOR to provide EzcensusTm Select Products and Services to SUBSCRIBER in a form and format
media that is specifically compatible with any equipment used by SUBSCRIBER to read, process and/or
otherwise make use of these products or services. To the extent that the products, services and software are
incompatible for use by the SUBSCRIBER, it is SUBSCRIBER'S sole responsibility to take actions necessary
to achieve the desired level of compatibility. Without limiting the foregoing, LICENSOR does not warrant that
Ezcensusm Select Products and Services will be accurate, reliable, uninterrupted, error free or free of viruses
or other harmful agents, nor does LICENSOR warrant that any data, information or related software will be
accurate, reliable, complete, or timely or that any software access rules will operate as intended, however,
LICENSOR warrants that before delivery of an digital products, services and software to SUBSCRIBER,
LICENSOR will use up-to -date, commercially available virus scanning and cleaning, and will not, based on the
results of that scanning and cleaning, deliver to SUBSCRIBER products, services or software containing any
computer viruses, time bombs, harmful and malicious data, or other undocumented programs which inhibit data
and software use.
7.4. This SECTION 7 IS SUBSCRIBER'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF
WARRANTY BY LICENSOR WITH RESPECT TO THE PRODUCTS. EXCEPT AS OTHERWISE
PROVIDED IN SECTION 7, THE DATA, SOFTWARE, CONFIDENTIAL CONSULTING DATA, AND
DOCUMENTATION ARE PROVIDED TO SUBSCRIBER SOLELY ON AN "AS IS" BASIS. IN
PARTICULAR, LICENSOR DISCLAIMS ANY WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE OR MERCHANTABILITY WITH RESPECT TO THE DATABASES. SOFTWARE,
CONFIDENTIAL CONSULTING DATA, AND DOCUMENTATION. ALL WARRANTIES AND
OBLIGATIONS, EXPRESS OR IMPLIED, WHICH ARE NOT EXPRESSLY STATED HEREIN ARE
DISCLARVIED, WAIVED AND RELEASED
8. Indemnity,
8.1 Indemnity Obligation. LICENSOR agrees to indemnify and hold harmless SUBSCRIBER against claims,
actions or demands alleging that the use of the EzcensusTM Select Products and Services infringes any third
party United States patents or copyrights existing as of the Effective Date. In the event of any actual or
threatened claim of infringement by a third party, LICENSOR may, at its option, () replace or modify the
allegedly infringing Product data and/or Software with non infringing data or software which is functionally
substantially equivalent, or (ii) obtain a license for SUBSCRIBER to continue use of the allegedly infringing
Software, or (iii) accept the termination of this subscription subject to the terms of this agreement
EXSD FRI08 (version 2.2) 4
8.2 Condition. As a condition to LICENSOR's indemnity obligation under Section 8. 1, SUBSCRIBER must
provide LICENSOR with: (i) prompt written notice of any such claim or action; (ii) sole control and authority
over the defense or settlement of such claim or action; and ( iii) proper and full information and reasonable
assistance to defend and/or settle any such claim or action.
8.3 Limitation. LICENSOR shall have no obligation hereunder for any such claims, actions'or demands which
are based upon: (i) SUBSCRIBER'S use of the Products and Services in combination with materials or products
not supplied by LICENSOR which violates the rights of third parties, (ii) the modification or attempted
modification of the Products and Services by parties other than LICENSOR, and the use or distdbution of such
modified Products and Services, (iii) the use of other than the latest version of the Products and Services, if such
claim would have been avoided by the use of such later release; or (iv) use of the Products and Services in a
manner that it was not intended.
8.4 Sole and Exclusive Obligation. The foregoing states LICENSOR's sole and exclusive obligation, whether
express, implied, or statutory, with respect to claims of infringement of Proprietary Rights of any kind.
9. Limitations of Liability.
9.1 No Consequential Damages. LICENSOR SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION,
ANY DAMAGES RESULTING FROM LOSS OF PROFITS, DATA OR GOODWILL, WHETHER SUCH
DAMAGES OR LOSSES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY OR OTHERWISE, OR ARE SUFFERED DIRECTLY OR INDIRECTLY, EVEN IF LICENSOR
IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2 Limitation ofAmount. Notwithstanding any other provisions of this Agreement, LICENSOR's liability to
SUBSCRIBER shall be limited, in the aggregate, to the total payments made by SUBSCRIBER to LICENSOR
under this Agreement in the most recent full calendar year This limitation is cumulative, with all payments to
SUBSCRIBER for claims or damages being aggregated to determine satisfaction of the limit The existence of
one or more claims will not enlarge this limitation on amount
9.3 Time to Sue. All disagreements or controversies of any kind, whether claimed in tort, contract or otherwise,
either concerning this Agreement or any other matter whatsoever, shall be brought within one (1) year after the
accrual of the disagreement or controversy.
10. Injunctive Relief. Notwithstanding any other provisions of this Agreement, SUBSCRIBER acknowledges that
breach of the provisions of this Agreement by SUBSCRIBER which relate to the protection of LICENSOR's
intellectual property rights may cause LICENSOR irreparable damage for which recovery of money damages
would be inadequate, and LICENSOR shall therefore be entitled to seek timely injunctive relief to protect its
rights under this Agreement in addition to any and all remedies available at law. SUBSCRIBER hereby waives
the requirement of a bond in the event LICENSOR seeks injunctive relief.
11. Confidenflality and Non- Dislosare.
11.1. Confidential Information Defined Each party acknowledges that in the course of its performance under
this Agreement or any addendum, it may be exposed to certain information relating to the other party's business
which is confidential and proprietary information ("Confidential Information") of the other party and is not
generally known to the public, including without limitation, information concerning technical and business
information relating to the other party's clients, technology, products, programs, research and development,
production, numuf icturing and engineering Processes, computer software, business plans, finances, and
employees. In addition, Confidential Information shall include any information which is identified orally or in
writing by the disclosing party to be confidential, or which the receiving party reasonably believes to be
confidential information or a trade secret of the disclosing party. SUBSCRIBER acknowledges and agrees that
this Agreement, the Products and Services contain Confidential Information of LICENSOR
11.2. Rights in Confidential Information. All Confidential Information shall remain the sole property of the
disclosing party and the receiving party shall have no rights to the Confidential Information of the disclosing
party, except as otherwise provided in this Agreement
EXSD FRI08 (version 2.2) 5
M3. Restrictions LICENSOR and SUBSCRIBER each agree that it will not use any Confidential
Information of the other except in accordance with the provisions of this Agreement and, except as permitted
under this Agreement, will not disclose any Confidential Information of the other to any third party without the
prior written consent of the other party . Each party hereby consents to the disclosure of its Confidential
Information to the employees and consultants of the other as is reasonably necessary in order to allow the other
party to perform this Agreement and obtain the benefits hereot provided that such employee or consultant (i)
has a need to know such Confidential Information, (ii) has agreed to the terms of this confidentiality agreement,
and ( iii) has received advance written approval of LICENSOR, such approval not to be unreasonably withheld.
Each party further agrees to treat all Confidential Information of the other in the same manner as it treats its
own Confidential Information, but in no case will the degree of care used by such party be less than reasonable
care. Notwithstanding any provision set forth herein to the contrary, SUBSCRIBER shall be permitted to allow
authorized employees and contractors to utilize the Products and Services as part of Subscnber's ordinary
business practice , provided that SUBSCRIBER shall not disclose any part of LICENSOR's Confidential
Information to any person who is known to be using such data for developing any product similar to the
Products or Services. SUBSCRIBER agrees that, in the event. any current or former employee of
SUBSCRIBER discloses LICENSOR's Confidential Information in contravention of this Agreement,
SUBSCRIBER shall join LICENSOR in any legal action against such person and allow LICENSOR to control
such legal action, provided that LICENSOR shall bear the legal expenses of such action.
11.4. Exceptions Notwithstanding the other provisions of this Agreement, information shall not be deemed
Confidential Information, and the receiving party shall have no obligation with respect to any information
which (i) is or becomes publicly known through no act or omission of the receiving party; or (ii) was or is
received by the receiving party without restriction on disclosure from a third party who disclosed the
information without violating any confidentiality restriction. In addition, a receiving party may disclose
Confidential Information if required by any request or order of any government authority, provided that such
receiving party shall first attempt to notify the disclosing party of such requirement and, to the extent
reasonable, permit the disclosing party to contest such requirement.
12. Proprietary Notices. SUBSCRIBER agrees not to remove, alter or destroy any form of copyright notice, logo,
trademark, trade name, proprietary markings or confidentiality legends placed upon or contained within
Products and Services or any related materials or documentation SUBSCRIBER agrees to comply with all
such legends and markings. SUBSCRIBER further understands and agrees that the existence of any, copyright
notice shall not be construed as an admission or presumption of publication of Products or Services, or any part
thereof.
13. Term; Termination.
13.L Term. Unless terminated earlier as provided herein, the term of this Agreement will begin on the
Effective Date and will continue in force for the Initial Term of one year Thereafter, this Agreement may be
renewed annually for additional and successive one (1) year terms ( "Renewal Terms") to commence on the
respective anniversary of the date of expiration of the Imtial Term. Such Renewal Terms will occur
automatically unless either party notifies the other thirty (30) days prior to the expiration of the expiring term of
such party's decision not to exercise its renewal option. "Term" shall mean the Initial Term and any Renewal
Tenors.
13.2. Default Either party may terminate this Agreement upon thirty (30) days' written notice of a material
breach of this Agreement if such breach is not cured within such thirty (30) day period.
13.3. Effect of Termination. Upon the expiration or termination of this Agreement for any reason, the license
to use EzcensusTm Select Products or Services and all other rights granted to SUBSCRIBER hereunder shall
immediately cease and SUBSCRIBER shall immediately (i) discontinue all use of Excensus'm Select data
products and software products, (ii) purge all copies of data and software log -in identifiers and passwords, as
well as all portions thereof of the Data and software Products from the SUBSCRIBER'S hardware and
software, SUBSCRIBER'S computer storage media or any other location on or in which SUBSCRIBER has
placed Products; and (iii) give LICENSOR, at LICENSOR's request, a written certification that SUBSCRIBER
has complied with all of its obligations set forth in this section.
EXSD_FRI08 (version 2.2)
13.4. Survival. Each of the parties' respective obligations under Sections 4 ("Title; License Restrictions (
Products and Services). "), 5.3 ("Disclaimer of Warranties"), 6.3 ("Late Payments"), 8 ("Indemnity"), 9
("Limitations of Liability"), 10 ("Injunctive Relief'), 11 ("Confidentiality and Non - Disclosure), 12
("Proprietary Notices "), 14 ("General Provisions"), and any payment obligations then owing to either party will
survive termination of this Agreement.
14. General Provisions.
14.L Choice of Law . This Agreement will be governed by and construed in accordance with the laws of the
United States and the State of Minnesota as applied to agreements entered into and to be performed entirely
within Minnesota between Minnesota residents. Exclusiveurisdiction and venue for any dispute hereunder, or
which in any way relates to Subscriber's use of Excensus Select Products and Services, shall be the state
and federal courts located in Minneapolis, Minnesota.
14.2. Relationship of the Parties The parties to this Agreement are independent contractors. There is no
relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party
has the authority to bind the other or to incur any obligation on its behalf.
14.3. Force Majeure. Neither party shall be responsible for any liabilities, loss or damage to the other party or
others (except for the payment of money) arising out of or in connection with strikes, riots, fire, insurrections,
wars, acts of civil of military authorities, restraints of governments, acts of the elements, embargoes, failures of
carriers, acts of God or of the public enemy or any cause beyond the reasonable control of either party. If such
delay continues for more than one hundred eighty ( 180) days, either party may thereafter, by notice to the other
party, terminate this Agreement
14.4. Allocation ofRisk The sections on limitation of liability and disclaimer of warranty allocate the risk of
failure between the parties. This allocation is reflected in the pricing of the fees detailed in this Agreement and
is an essential element of the basis of the bargain between the parties.
14.5. Waiver. The waiver by either party of a breach of any provision contained herein shall not be effective
unless in writing signed on behalf of the party against whom the waiver is assertedL Any waiver shall in no way
be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself.
14.6. Severability. In the event that any provision of this Agreement shall be deemed unenforceable or invalid
under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not
render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed
and interpreted so as to best accomplish the intended objectives and economic effects of such unenforceable or
invalid provision, within the limits of the applicable law or court decisions.
14.7. Assignment: SUBSCRIBER shall not assign or transfer by operation of law or otherwise any of the
rights granted under this Agreement without LICENSOW s prior written consent This Agreement shall be
binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
14.8. Notice. All notices or reports permitted or required under this Agreement must be in writing. They will
be deemed given when required if (i) delivered personally, (ii) sent by commercial overnight courier with
written verification of receipt, or (iii) sent by registered or certified mail, return receipt requested, postage
prepaid Such notice shall be treated as having been received upon the earlier of actual receipt or five (5) days
after mailing All communications must be sent to the receiving party's initial address, as indicated in this
Agreement, or to such other address that the receiving party may specify in writing and in accordance with this
Section
14.9. Attorneys' Fees In the event any proceeding or lawsuit is brought by either party in connection with
this Agreement, the prevailing party in such proceeding shall be entitled to receive its costs, expert witness fees
and reasonable attorneys' fees, including costs and fees on appeal.
14.10. Counterparts. This Agreement may be executed in counterparts, each of which shall be considered an
original, but all of which, when taken together, shall constitute one and the same instrumenL
UAL Headings Titles or headings to the sections of this Agreement are not part of the terms of this
Agreement, but are inserted solely for convenience.
EXSD FRI08 (version 2.2)
14.12. No Representations SUBSCRIBER will make no representations by or on behalf of LICENSOR and
will hold LICENSOR harmless for any damages arising out of such representations.
14.13. Entire Agreement This Agreement (including addenda and exhibits to this Agreement, if any) contain
the entire agreement between the parties relating to this subject matter and supersede all prior or simultaneous
oral or written agreements regarding the subject matter of this Agreement. No modifications or amendments to
this Agreement shall be binding upon the parties unless made by a writing signed by both pasties.
THE UNDERSIGNED ACCEPTS THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION/
LICENSE/CONFIDENTIALITY AGREEMENT.
SUBSCRIBER:
By:
Its:
Phone:
Date:
Excensus LLC
By:
Its:
Phone:
Date:
EXSD FRIG8 (version 2.2) 8
IX(ENSUSLL(
February 27, 2008
Scott Hickok
Community Development Director
City of Fridley
6431 University Avenue NE
Fridley, Minnesota 55432
Re: ExcensusTm Select Demog_ranhics — 2008 Subscription Program
Dear Scott,
The 2008 Excensugm Select Demographics subscription program has officially gotten
underway. I am pleased to send you an updated subscription agreement in line with our
discussion when we last met in late January. Note that your subscription rate has been dropped
below the maintenance rate listed in last year's agreement. I've also included an invoice for your
convenience. Keep in mind that payment on the invoice is due in 10 days.
Please sign and return two copies of the agreement. I will return a copy to you with my
signature.
Work is progressing on the 2008 data update. A signed Confidentiality/Non- Disclosure
Agreement was received this week from Kathy Kelly, Superintendent at Columbia Heights
Public Schools. We expect to see the school data in the next few weeks.
As always, we appreciate your continuing support. We look forward to extending our
demographic work on behalf of the city. Please give me a call if you have any questions.
Sincerely,
John E. Carpenter
President
Excensus LLC
Enclosures: 2008 Excensugm Select Demographics Subscription Agreement
Invoice for the 2008 Subscription Program
17258 Jasper Ct • Lakeville, MN 55044
Phone/Fax: 952.892.6622
ri
CRY OF
FUREY
INFORMATIONAL ITEM
HRA MEETING OF MAY 11 2008
Date: April 24, 2008
To: William Burns, City Manager
From: Paul Bolin, Asst. Executive HRA Director
Scott Hickok, Community Development Director
Subject: Northstar Rail Properly Acquisition & Project Update
Property Acquisition
On Tuesday April 22n', Judge Sullivan granted authorization for the HRA to acquire the
property necessary for the Northstar Station site through condemnation.
Judge authorized the HRA to deposit $3,165,000 with the District Court on May 1, 2008
and immediately take title to the property.
BNSF will disrupt their train service for 30 straight hours, beginning early on the
morning of Tuesday May 27th, and install the tunnel. The Contractor doing the work will
Likely begin staging materials around May 15th.
Legislative Actions
The "Bonding Bill" which was approved in early March contained a request for $10.6M
for the Fridley Station. Though the bill made some headway in the House, it was
introduced, but never given a hearing on the Senate side.
In early April, just prior to the approval of the bonding bill, Senator Chaudhary
introduced the following language that would have provided funding in the unlikely
event that the other transit projects had left over funding.
55.12 Subd. , 12.UnsA0t.TransitulNay Appropriations
55.
55.
55.
55.
55.
55.
55.
55.20in those subdivisions, or to design and
55. 21constractp ubhc infrastructure. for the Fridley
55.22station of the Northstar, commuter rail. The
55.23MetroDolitan Council shall obtain approval
55 24from the` commissioner of finance and the
55.25chair of the senate Finance Committee and.
55.26the chair of the house of representatives
55.2 7Ways and Means Committee before the
55.28transfer is made.
This effort will at least provide a "place marker" to hopefully get our station funded
during the next legislative session. The fact that it was unlikely for any of the other
transit projects to have left over funding is irrelevant, as Governor Pawlenty vetoed all
of the other projects from the bonding bill.
As I had mentioned in last month's update, it has become quite clear that we will need
to view our $3.1 M acquisition of land as a "local match" and that the Anoka County Rail
Authority will also be expected to view their $2.5M tunnel installation and land
acquisition as a local match.
Our proposed changes to our Transit TIF Bill, continue to move forward. The changes
have been approved by the Senate and are under review by the House. We expect
action to be taken on this within the next week. These changes will allow us to create
multiple TIF Districts in the Norhtstar area, rather than 1 large district.
Yesterday we were notified. that the House is considering a Bill to allow local HRA's to
increase their maximum levy from .0144% to .025 %. While it does seem that the State
is pushing everything back on the local jurisdictions and property taxes, I think this
seems like a reasonable bill. This would provide Authorities the ability to raise
additional funding for local projects that the State is unable to fund.
For Fridley, based on numbers for the current year provided by HRA Accountant Mike
Jezorski, the Fridley HRA would have an additional $277,374 that could support bond
issuances for large projects or otherwise be spent on housing & redevelopment efforts.
I had mentioned last month that Mayor Lund has been working collaboratively with
Anoka County Commissioner Kordiak, Senator Chaudhary and Representative Laine to
get a meeting with Rep. Oberstar in the very near future. We are hoping they can
persuade Oberstar to come up with some funding that could be granted long before the
next TEA Bill is authorized. I recently heard back from Oberstar's office and it appears
that a meeting will likely take place in late June or early July.
We have also been in contact with Representative Keith Ellison's office to keep them
apprised of our efforts in the event that the Representative is able to help find funding
at the Federal level.
We are still waiting to find out how the '/4% sales tax, approved by Anoka County, and
effective July 1, 2008, may provide funding for our station site.
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State of Minnesota District Court
Anoka County Tenth Judicial District
Court File Number: 02-CV-08-676
Case Type: Condemnation
Notice of Filing of Order
MOLLY RENEE HAMILTON
5000 NORMAN CENTER DR1VE
SUI'T'E 1000
MINNEAPOLIS MN 55437 -1175
The Housing and Redevelopment Authority in and for the City of Fridley Vs. Main Street Fit idley
Properties, LLC
You are notified that an order was filed on this date.
Dated: April 22, 2008
cc: ROBERT BENNETT
Jane F. Morrow
Court Administrator
Anoka County District Court
325 East Main Street
Anoka MN 55303 -2489
763 -422 -7350
A true and correct copy of this notice has been served by mail upon the parties herein at the last
lmown address of each, pursuant to.N innesota Rules of Civil procedure, Rule 77.04.
ftevisea 10-20
Notice of Filing of Order
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DISTRICT COURT
COUNTY OF ANOKA .. TENTH JUDICIAL DISTRICT
_
The Housing and Redevelopment Authority in n pR k e
and for the City of Fridley, Minnesota, a public
body corporate and politic, =• V �," 3
Petitioner,
( j&R GRANTING PETITION,
VS. AUTHORIZING PAYMNT FOR
DEPOSIT AND TItANSFERRRING
TITLE PURSUANT TO
Main Street Fridley Properties, LLC, AUNN. STAT. §117.042
Respondent.
Court File No.: 02 -CV -08 -676
The above - entitled matter came on for hearing before the Honorable Barry A. Sullivan,
Judge of District Court, Tenth Judicial District at the Anoka County Courthouse in Anoka,
Minnesota on March 4 and 11, 2008. Petitioner appeared through counsel, Phillip R. Krass, Esq.
and Molly R. Hamilton, Esq. Defendant appeared through counsel, Robert L. DeMay, Esq.
Subsequent to the hearings, Mr. DeMay filed a Notice of Withdrawal of Comisel on April 3,
2008, A Substitution of Counsel was filed April 15, 2008, by Flynn, Gaskins & Bennett, L.L.P.,
on behalf of Respondent.
Now, therefore based on the record and all the proceedings herein, the Court snakes the
following:
FINDINGS OF FACT
1. The City of Fridley is a municipality located in the County of Anoka, State of
Minnesota.
2. Petitioner is the housing and redevelopment authority ("HRA ") for the City of
Fridley, organized under Minnesota Statutes Chapter 469 (2006). Petitioner is
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authorized by Minn.. Star. §469.012, subd. 1(g) to acquire by the power of eminent
domain, as set forth in Minn. Stat. Chapter 117, such real estate interest as it may
require when it determines that doing so is necessary and for a public purpose.
3. The Anoka County Regional Railroad Authority ( "ACRRA ") is a regional rail
authority organized under Minnesota Statutes Chapter 398A (2006).
4. On January 10, 2008, Petitioner adopted Resolution No. 2008 -01 entitled:
"RESOLUTION AUTHOR=G THE ACQUISITION OF CERTAIN PROPERTY
FOR PUBLIC USE BY RIGHT OF EMINENT DOMAIN-"
5, In Resolution 2008 -01, Petitioner found that the Fridley Rail Station project was a
public purpose and authorized the acquisition of Respondent's property, by eminent
domain if necessary, for the project. The Petitioner based its findings on a number of
considerations:
a. The Petitioner had entered into a Memorandum. of Understanding ( "MOU") with
Anolca County Regional Railroad. Authority C A,CRRA ") to work jointly to seek
financing for the Fridley Rail Station and to determine the appropriate entity to
seek to acquire the necessary property;
b. ACRRA had adopted a Resolution authorizing the MOU under Minnesota
Statutes Chapter 398A;
c. ACRRA had entered into a MOU with the State of Minnesota, Department of
Transportation ("MnDOT ") whereby ACKR A became the designee of MuDOT to
enter into a Underpass Construction Agreement (UCA) with Burlington Northern
Santa Fe Railroad (now known as ENSF) and to contribute funds to the UCA
project;
d. ACRRA has entered into an UCA with BNSF;
e. The Petitioner had entered into a MOU with MnDOT to acquire the necessary
property for the Fridley Rail Station project;
f. That the project will further the goals of MnDOT;
g. That the project will further the development and redevelopment goals of the
Petitioner.
N
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b. On November 13, 2007, ACRRA adopted Resolution No. 2007 -10 authorizing
ACRRA to enter into MOU's with the State of Minnesota and with the Petitioner for
the Fridley Rail Station project and to enter into a UCA contract with BNSF_
7_ The Petitioner and ACRRA entered into a MOU dated November 1,,2007,- under
Minn. Stat §39SA.01 (2006) whereby:
a. ACRRA will enter into a MOU with MnDOT to be MnDOT's designee to enter
into a UCA with BNSF pursuant to Minn. Stat. § 174.82
b. Acknowledging that the Petitioner's redevelopment plan for Redevelopment
Project No. 1 includes the Fridley Rail Station;
c_ ACRRA will enter into the UCA with BNSF;
d. ACRRA will pay the costs of the tunnel;
e. The Petitioner will grant an easement to BNSF;
f. The Petitioner will pay the costs to acquire the necessary property;
g. Both parties will cooperate to seek reimbursement for their respective costs and
determine the proper entity to acquire the property.
S. By a document executed October 30, 2007 and November 13, 2007, ACRRA and
MnDOT entcred into a MOU whereby ACRRA agreed to enter into the UCA with
BNSF by November 13, 2007 (later extended to November 30, 2007) and MnDOT
would designate ACRRA its "designee" under the Fridley Master Agreement and
delegate to ACRRA the authority necessary to fulfill its obligations under the UCA
with BNSF. In the MOU, MnDOT further aclmowledged that the financial
contribution by ACRRA related to the UCA would be reimbursed or considered part
of ACRRA's local contribution to the Fridley Rail Station or for future rail projects.
9. ACRRA and BNSF entered into the UCA by document dated November 13, 2007.
10. In Resolution No. 2008 -02, the Petitioner again found the Fridley Rail Station project
would further the development and redevelopment goals of the Petitioner and of the
area around the Fridley Rail Station site and approved a MOU between the HRA and
MnIbOT.
11. The Petitioner and MnDOT entered into a MOU which recited that
a. Pursuant to Minn, Stat. §174.82, commuter rail facilities are government
functions, serve a public purpose and are a matter of public necessity;
3
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b. Under § 174.82, MnDOT is responsible for all aspects of commuter rail in
Minnesota;
c. § 174.82 authorizes MnDOT to enter into agreements with another public entity to
carry out MnDOT's responsibilities for conunuter rail;
d. MnDOT had entered into an agreement with BNSF whereby BNSF would
construct a tunnel to serve the Fridley Rail Station and facilitate the construction,
operation and maintenance of the Fridley Rail Station (the Fridley Master
Agreement);
e. MnDOT had entered into a MOU with ACRRA to act as MuDOT's designee and
enter into the UCA with BNSF on behalf of NhiDOT;
f. A.CRRA did enter into the UCA with BNSF;
g. It is necessary to acquire the subject property in order to construct the tunnel,
transit station and park and ride facility needed to serve the Fridley Rail Station;
h. Minn. Stat, Ch. 469 authorizes the Petitioner to enter into the MOU;
i. The Petitioner has adopted a redevelopment plan for Redevelopment Project No.
1 and has included the Fridley Rail Station site in Project No. 1;
j. The subject property should be acquired and the Fridley Rail Station, be
constructed as soon as possible to avoid the costs of delay.
12. Pursuant to the Petitioner/MnDOT MOU, the Petitioner would acquire the subject
property and pay all costs associated with its acquisition, and MnDOT would assist
the Petitioner with plans and technical information for the Fridley Rail Station and
acknowledge the financial contribution of the Petitioner.
13. Petitioner is seeking to acquire the property by "quick take" under Minn. Stat.
§ 117.042 (2006).
14. The North Star Commuter Rail Project (North Star) is a mass transit plan whereby the
State would lease the use of rail lines from BNSF for the purpose of operating
commuter trains between the Twin Cities and :Big Lake, Minnesota. There are to be a
number of stops or "stations" along the route.
15. The North Star has been in the planning and development stage for many years in a
complicated process involving a myriad of Federal, State, County and Local elective
bodies and agencies.
4
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16_ The Minnesota Legislature has authorized MnDOT to carry out and facilitate
commuter rail in Minnesota.
17, The Federal Transportation Administration and MnDot have entered into a "Tull
Funding Grant Agreement' for the North Star Corridor Rail Project,
18. MnDOT has delegated to the Metropolitan Council the authority to operate the rail
system and stations. The Metropolitan Council may contract with BNSF or others for
some of the operational or maintenance duties.
19. The Fridley Master Plan is an agreement between BNSF and MnDOT dated May 31,
2007, which generally provides for the construction and operation of the Fridley hail
Station facilities.
20. The City of Fridley has always been considered as a location for a station on the
North Star line. Different sites in Fridley have been considered but the subject
property has been determined to work the best due to its distance from BNSF's
Fridley coupling yard and the availability of space for a park and ride lot. Its
proximity to a nearby regional bike/walking trail was also considered, though whether
the proposed tunnel will be available for non - commuter rail users has yet to be
determined.
21. In the latest Federal Transportation Administration grant approval, the Fridley Rail
Station was not included due to perceived lack of traffic benefit (cost effective ratio).
The Fridley Rail Station is not part of North Star in that Federal funding is not
available. However, MnDOT, ACRRA, BNSF, and the City of Fridley all desire for
a station to be located in Fridley as reflected by the various MOD's referenced herein
and by the Fridley Master Agreement between MnDOT and BNSF. The
Metropolitan Council is planning for the Fridley Rail Station to be part of the North
Star operation.
22. The subject property is located just north of Interstate 694 near University Avenue
and Mississippi Street in Fridley. It is undeveloped land approximately 10.5 acres in
size and is abutted by the BNSF railroad line. (The legal description is attached hereto
as "Exhibit A.")
23. The Fridley Rail Station project anticipates the construction of a tunnel, a platform,
station, and park and ride parking lot. Petitioner is in need of immediate possession
4'I
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of the property prior to the award of the Commissioners. The rail line is a major
artery for BNSF and Memorial Day weekend is the only time construction activities
can be undertaken that do not interfere or disrupt the use of the rail line.
24. The Metropolitan. Council has yet to execute a platform agreement for the station
though it fully intends to do so.
25, The City of Fridley has a Comprehensive Plan under Minn. Stet Ch. 419. The
updated flan is pending review.
26. The subject property is located in an area part of the City's Redevelopment Project
No. 1. The subject property is not part of a specific Housing and Redevelopment
Authority project at this time but it is part of a larger tax increment financing area,
has been part of a housing corridor study, other HRA projects have been undertaken
in the area, and a congmuter rail station would be a benefit to the overall housing
market in the city.
27. Timothy J. Nelson is an employee and consultant of Respondent's. Mr. Nelson has
been the main negotiator regarding the proposed acquisition of the property at issue
by all public entities since approximately 2003.
28. Respondent and the City of Fridley have been involved in an ongoing dispute
regarding zoning issues and some special assessments Respondent believes to be
unlawful. The parties are involved in separate litigation in Federal Court.
29. On January 11, 2008, Mr. Nelson sent a facsimile to James Casserly, an attorney for
petitioner, requesting that any communications between them be placed in writing in
light of the ongoing litigation between Respondent and the City of 1~ridley.
Correspondence outside the scope of that litigation was to be directed to
Respondent's business address rather than directly to Mr. Nelson.
30, On January 11, 2008, Mr. Casserly contacted Mr. Nelson by letter at Respondent's
business address and attached two appraisals of the property dated March 2006. Mr.
Casserly's lettei stated.a desire to "negotiate a purchase of this property for a fair
price."
31. On January 14, 2008, Mr. Nelson responded to Mr. Casscrly's letter and the
appraisals by letter. Mr. Nelson noted the appraisals were nearly two years old, had
been commissioned by Anoka County, and had previously been submitted to
M
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Respondent together with an offer letter. Mr. Nelson further noted that Respondent
had rejected the letter offer and appraisals a year earlier as being incomplete and
deficient. Mr. Nelson made several inquiries as to Respondent's intentions to
supplement or update the appraisal, submit a biuoding offer, and pay the cost of any
independent appraisal Respondent should feel the need to conduct.
32. On January 15, 2008,1%4r. Casserly responded to Mr. Nelson by letter and advised
Petitioner would provide an updated appraisal, would negotiate in good faith, make a
fum and binding offer for purchase, and would reimburse Respondent's independent
appraisal costs up to $5,000.00.
33. On January 24, 2008, Mr. Casserly contacted Mr. Nelson by letter with updated
appraisal information. In accordance with the updated appraisal, Mr. Casserly offered
Mr. Nelson $3,165,000.00 as the fair market value for the property, provided no
environmental remediation was required and that Respondent pay its own appraisal
.fees, properly taxes for 2008 and any other pending or levied special assessments.
Mr. Casserly advised of Petitioner's intention to proceed with the condemnation
action herein on January 28, 2008 so that Petitioner could tape possession of the
properly by May 1, 2008 and begin construction of the tunnel during Memorial Day
weekend of 2008 as needed. However, Mr. Casserly assured Mr. Nelson that this did
not affect Petitioner's "good faith efforts to negotiate a fair price...."
34. Mr. Nelson replied by letter on January 30, 2008. Mr. Nelson objected to the four-
day deadline to either accept the offer or face condemnation. Mr. Nelson further
preliminarily objected to the requested warranties, requested payment of taxes and
warranties given R.espondeut's pending litigation with the City of Fridley for
illegitimate taxation and penalization, inadequate reservation of rights, inadequate
documentation, inadequate specificity, and finally failure to attribute value to plans
and architectural documents associated with the property_ Mr. Nelson stated for all of
these reasons that Petitioner was not in fact negotiating in "good faith."
35. Mr. Casserly responded by letter, dated February 5, 2008. He clarified that Petitioner
did not to impose any deadlines by which Respondent must accept Petitioner's offer,
but that the condemnation petition needed to be filed promptly in order to ensure
possession of the property by May 1, 2008 to prepare for the Memorial Day weekend
7
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construction of the tunnel which is the only date available for BNSF. Mr. Casserly
stated that Petitioner was willing to delay the hearing before the Commissioners for
as long as possible to facilitate continued negotiations in spite of the commencement
of the instant proceedings. Mr. Casserly further clarified that the requested
environmental warranties were merely standard for any real estate transaction, as was
the requested special assessment provision. Petitioner agreed to fashion the sale to
protect Respondent's litigation against the City of Fridley. Petitioner assured
Respondent that Petitioner was possessed of the authority and resources to complete
the transaction. Finally, Mr. Casserly restated his belief that Petitioner was
negotiating in good faith, pointing out that Petitioner's offer exceeded Respondent's
current asking price for the property.
36. Mr. Nelson responded by letter, dated February 12, 2008. Mr. Nelson stated that
based on communications with a principal of Respondent's, he believed a sale at the
price offered in Mr. Casserly's February 5, 2008 letter could be agreed upon provided
several conditions were met. The conditions included indemnification for any
environmental issues for Respondent, no liability for any unpaid real estate taxes or
special assessments or other fines on the property to Respondent, Petitioner must
assume responsibility for all closing costs, closing on the property by May 1, 2008,
and Petitioner would pay Respondent's legal fees related to this transaction up to
$25,000.00. Respondent also required that Petitioner secure an agreement by the
Fridley City Council to adopt resolutions relating to the ongoing litigation between
Respondent and the City of Fridley and the adverse effect that the underlying conflict
has.had on Respondent's reputation. Mr. Nelson closed the letter with a paragraph
which implied that the conditions laid out herein were nou- negotiable, particularly
those relating to the City of Fridley, and that Respondent would in fact negotiate no
further. Mr. Nelson supplemented this letter with a separate letter on the same date
clarifying that only a mutually executed purchase agreement would bind the parties.
Finally, Mr. Nelson sent an additional letter on February 13, 2008 which specified the
terms of the listing and sale contract that Petitioner must agree to fulfill.
37. Mr. Casserly replied by letter dated February 15, 2008. Therein, Petitioner requested
access to the property to conduct environmental testing to ensure that agreeing to
E
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accept the property "as is" would be feasible, and Petitioner agreed to pay all special
assessments and fees leaving Respondent responsible only for property taxes for
2008. Mr. Casserly stated that he expected each party would be responsible for their
own costs and fees associated with closing on the sale and agreed to the May 1, 2008
daze. Finally, Mr. Casserly distinguished between Petitioner and the City of Fridley,
and stated that Petitioner had no authority to offer the concessions that Respondent
requested with regard to the passage of City of Fridley resolutions.
38. Mr. Nelson responded by letter dated February 18, 2008. He refused to grant
Petitioner any access to the property for inspection absent a "complete and
comprehensive purchase agreement." Mr. Nelson also found every other
qualification that Mr. Casserly made to his various conditions on the potential
purchase to be "unacceptable!' with the exception of the May 1, 2008 deadline. Mr.
Nelson further responded that while he fully understood that Petitioner and the City
of Fridley were two separate legal entities, he believed the two were in close
communication and that the City of Fridley had an interest in the acquisition of the
property-
39. Mr. Casserly replied by letter on February 26, 2008 to state that Petitioner was unable
to provide the assurances that Respondent demanded on bebalf of the City of Fridley.
Mr. Casserly stated that Petitioner would still prefer to resolve-the matter outside of
the condemnation process and asked Mr. Nelson to advise him if was willing to
resume negotiations at any time in the future, since they seemed to be in agreement
on the purchase price.
40. Mr. Nelson replied by letter on February 27, 2008, Mar. Nelson accused Petitioner of
failing to negotiate in good faith for failing to secure resolutions from the City of
Fridley. Mr. Nelson also stated that Mr. Casserly mischaracterized the state of their
negotiation when he stated that they agreed on the "amount of monetary
compensation which is appropriate" for the sale of the property.
41. Petitioner made a good faith effort to acquire the property by direct purchase.
42. Petitioner substantially complied with §117.036. Nonetheless, an award of $3,000.00
attorney fees as a sanction is appropriate.
0
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CONCLUSIONS OF LAW
1. The Petition in Condemnation and the Notice of Hearing to approve the Petition in
Condemnation were duly served upon Respondent named in the Petition within the
time required by law, and proof of service has been filed with the District Court
,Administrator.
2. The Petition in Condemnation is in due form as is required by the applicable
Minnesota statute.
3. The procedures used by Petitioner were in accordance with the statutes governing the
acquisition of real property through condemnation.
4. Pursuant to Minnesota law, Petitioner, individually and in conjunction with the
Minnesota Department of Transportation and the Anoka County Regional Railway
Authority, has all powers necessary and convenient to carry out the purposes of this
action, including the power of eminent domain.
The proposed acquisition of the property by Petitioner serves a public purpose in that
it permits the establishment of a Fridley commuter rail station and related facilities,
which will further the goals and objectives of Petitioner, support Petitioner's
redevelopment project, and provide necessary public transportation.
S. The proposed taking by petitioner of the property described in Exhibit A and in the
Petition serves a public purpose and, as such, is constitutional and authorized by law.
7. Petitioner has established that it may require title and possession to the property on
Exhibit A before the time within which the Court appointed commissioners
reasonably could be expected to file their award and has otherwise complied with all
the requirements set forth in Minn. Stat. § 117.042.
IT IS HEREBY ORDERED THAT:
1. The Petition in Condemnation is hereby GRANTED and Petitioner is authorized to
acquire, through condemnation, the property legally described herein as set forth in
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Exhibit A, including fee title, as well as any and all easements, hereditaments,
appurtenances, adverse rights, gaps and overlaps.
2. Disinterested residents of Anoka County, Minnesota, shall be appointed as
Commissioners to ascertain the amount of damages suffered by the Respondent on
account of the taking of the property described in the attached Exhibit A under separate
Order.
3. Petitioner is hereby permitted and authorized to deposit into the Court, or to pay directly
to the owners pursuant to Minn.. Stat. '§ 117.042, the amount of its approved appraisal of
value after the property legally described in Exhibit A. Such deposit may be made no
less than ninety (90) days after service of the Notice, January 31, 2008.
4. Upon either making the deposit into the District Court or payment by the Petitioner
directly to the owner, and unless otherwise earlier agreed to by the respective Respondent
herein, the no sooner than the ninety -first (91") day after service was made upon
Respondent of notice of intent to take possession of property under the procedure set
forth in paragraph 4 above (January 31, 2008), in that case the title and right to
possession of any such property so served shall, without further notice, immediately vest
in the Petitioner.
5. The District Court Administrator is directed to accept the aforementioned deposit.
6. The Petitioner shall give written notice to the Despondent of deposit or payment to all
parties previously appearing in these proceedings.
7. Failure to vacate the property described herein within five (5) days after transfer of title
and in accordance with this Order will subject Respondent or others claiming under them
to be found in contempt of Court. The Court retains jurisdiction of this matter for the
purpose of granting the Petitioner other and fiuther relief as may be necessary and
appropriate to implement the provisions of this Order and to otherwise transfer title and
right to possession of the property where possession is obtained pursuant to paragraph 5
above,to Petitioner and in accordance with the provisions of Minn. Stat. § 117.042 and
§ 117.043.
8. Respondent is awarded $3,000.00 in attorney fees.
9. The attached memorandum of Iaw is incorporated herein by reference.
11
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10. A. copy of this order shall be served upon the parties by U.S. Mail and shall constitute due
and proper service in lieu of personal service.
Dated:
12
BY THE COURT:
The O6norab ' "Barry A. Sullivan
Judge o£Dis ct Court
Tenth Judicial District
IF
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MCHIW "A"
Lrd I Deswipoom
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MEMORANDUM
Housing and Redevelopment Authority of Fridley v. Main Street Fridley Properties, LLC
Anoka County Court File 02 -CV- 08-676
This is an action for condemnation of property through eminent domain commenced by
Petitioner by the filing of a petition under Minn. Stat. Chapter 117 (2006). Petitioner is a
municipal Housing and Redevelopment Authority ( "BRAT organized under Chapter 469.
Petitioner asserts the authority to acquire the property through eminent domain under Minn. Stat-
§469.012 and § 117.012. Respondent objected to the Petition and a two day evidentiary hearing
was held on the Petition. The parties submitted extensive affidavits, exhibits and memoranda.
The Court holds that the Fridley HRA, acting in concert with other agencies, has the authority to
acquire by eminent domain property that will ultiirnately be used by state and regional agencies
as a commuter rail station. The Petition is granted. Further, Petitioner has demonstrated the
need for immediate possession (quick take) under § 117.042 (2006).
I.
In order to determine whether to grant a petition to acquire property through eminent
domain, the Court is to examine the public purpose, necessity and authority for the taking. Minn.
Stat. § 117.075 (2006). The questions of public purpose and necessity are "judicial questions."
City ofLhiluth v State, 390 N.W.2d 757, 763- 64(Minn.1986). The condemning authority makes
initial findings of whether the taking serves a public use and is reasonably necessary for that
public use. Lundell v. Cooperative Power Ass'n., 707 N.W.2d 376, 380 (Minn. 2006), citing
City of Duluth, 390 N.W.2d at 762 -765. The public purpose and necessity determinations of an
agency are legislative actions which receive deference from the courts. Lundell, 707 N.W.2d at
381. If there is some evidence the taking serves a public purpose "there is nothing left for the
courts to pass upon. Courts may interfere only when the ... actions are manifestly arbitrary or
unreasonable." Housing and Redevelopment Authority in and for- the City of Minneapolis v.
Minneapolis Metropolitan Company, 259 Minn. 1, 15,104 N.W.2d 864, 874 (Minn. 1960). The
concept of public purpose is construed broadly. Lundell, 707 N.W2d at 381, citing City of
Duluth at 390 N.W.2d at 763. "As long as the predominant purpose being furthered is a public
one, the condemnation is constitutional...." City of Duluth, 390 N.W.2d at 764. In this case, the
purpose of the taking is to construct facilities to be used as part of a regional transit system —the
North Star commuter line. This is unquestionably a public purpose. The IAA also asserts the
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corollary purpose of encouraging economic development as a result of the construction and use
of the Fridley rail station.
It is well settled that the requirement of necessity does not mean a showing' of absolute
necessity. Rather, the agency must demonstrate that the taking is reasonably necessary and
convenient to further a proper purpose. City of Duluth v Slate, 390 N.W.2d at 765, citations
omitted. To overcome the agency's finding of necessity "there must be overwhelming evidence
that the taking is not necessary." I undell v. Cooperative Power Assn., 707 N.W.2d at 381,
citing City of Duluth, 390 N.W.2d at 764. The existence of possible alternatives does not make
the taking arbitrary. Lundell, 707 N.W.2d at 351, citing City of Pipestone v. Ralbersma, 294
N.W.2d 271, 274 (Minn.. 1980). In this case, the evidence shows that the City of Fridley has
long been contemplated as the site of a station as part of the North Star project. The subject
property has long been identified as a viable site for the Fridley station. The site has been
approved by 13NSF after lengthy negotiations as a desired and convenient location for the station.
The property is undeveloped and will not incur relocation costs or issues. The fact that other
sites have been considered or may be available does not make the Petitioner's finding of
necessity arbitrary. Id. The necessity for the taking has been shown.
M
The significant challenge to the Petition is the issue of whether the HRA has the authority
to acquire property by eminent domain for use as a rail station complex by other governmental
agencies_ In other words, assuming some government agency has the power to acquire property
by eminent domain for light rail purposes, is a municipal HRA such an agency?
in support of its Petition, the HRA cites authority under Minn. Stat. § 117.012, subd. 2(1)
(2006). The HRA also asserts that the legislature has declared commuter rail projects to be a
public purpose under Minn. Stat. § 174.82 (2006). Petitioner relies on Minn. Stat. §471.59
(2006) indicating that such projects may be undertaken by two or more agencies. Finally,
Petitioner asserts that the fact the HRA will not be the end user of the property does not bar the
taking as the law does not require the public purpose for the taking be specific to the condemning
authority but rather to the ultimate beneficiary of the taking.
Respondent has asserted several objections challenging the authority of the HRA to
acquire this property. Specifically, that (1) the HRA is acting beyond the limit of its authority
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under 469.012; (2) the project is a "joint acquisition" within the meaning of Minn. Stat_
§ 117.016; (3) the taking is not necessary for any redevelopment projects (4) MnDOT is not
authorized to delegate its power of eminent domain to the HRA; (5) MuDOT has already
delegated its power to the Metropolitan Council relative to this project; (6) the BRA has no
authority to operate the station; (7) actions under Minn. Stat. § 117.035 must be brought in the
name of the State of Mimiesota; (8) MnDOT has no authority to acquire Respondent's property
because the station is not in the budget under Minn. Stat. § 174.85; and (9) legislative changes to
Minn. Stat § 117.012, subd. 2(b) in 2006 prohibit a taking based solely on economic
development and effectively overrule several court precedents.
Municipal agencies like the HRA are creatures of the legislature and possess only those
powers expressly granted to them or impliedly necessary to carry out their express powers.
Tillage ofRrooklyn Center v. Rippen, 255 Minn. 334, 335 -36, 96 N.W.2d 585, 587 (Minn.
1959). The legislature has granted FRM a limited power of eminent domain. Minn. Stat.
§469.012, Subd. lg(a)(b) and (c). provide, in relevant part:
Subd. 1 g. Get property; eminent domain. (a) An authority may, within its
area of operation, acquire real or personal property or any interest therein by
gifts, grant, purchase, exchange, lease, transfer, bequest, devise, or otherwise,
and by the exercise of the power of eminent domain, in the manner provided
by chapter 117, acquire real property which it may deem necessary for its
purposes, after the adoption by it of a resolution declaring that the acquisition
of the real property is necessary:
(1) to eliminate one or more of the conditions found to exist in the resolution,
adopted pursuant to section 469.003 or to provide decent, safe, and sanitary
housing for persons of low and moderate income; or
(2) to carry out a redevelopment project.
(b) Real property needed or convenient for a project may be acquired by the
authority for the project by condemnation pursuant to this section.
(c) Prior to adoption of a resolution authorizing acquisition of property by
condemnation, the governing body of the authority must hold a public hearing
on the proposed acquisition after published notice in a newspaper of general
circulation in the municipality, which must be made at least one time not less
than ten days nor more than 30 days prior to the date of the hearing. The
notice must reasonably describe the property to be acquired and state that the
purpose of the hearing is to consider acquisition by exercise of the authority's
powers of eminent domain. Not less than ten days before the hearing, notice
of the hearing must also be mailed to the owner of each parcel proposed to be
acquired, but failure to ,give mailed notice or any defects in the notice does
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not invalidate the acquisition_ For the purpose of giving mailed notice, owners
are determined in accordance with section 429.031, subdivision 1, paragraph
(a).
These sections, and § 117.012 (2006), make it clear that the HRA is to acquire property in the
manner provided for in Chapter 117.
The proceedings are to be initiated by the public body which is "authorized by law to
exercise the power of eminent domain, in its corporate or official name and by the governing
body thereof...." §117.035(2006). It appears to be one of the contentions of Respondent that,
tender the circumstances of this case, the HRA is not the public body authorized to exercise the
power of eminent domain_ Respondent contends that only the State of Minnesota, through
MuDOT, is authorized to acquire private properly for commuter rail purposes by the exercise of
eminent domain. Respondent relies upon § 174.82 (2006) which provides:
The planning, development, construction, operation, and maintenance
of commuter rail track, facilities, and services are governmental functions,
serve a public purpose, and are a matter of public necessity. The
commissioner shall be responsible for all aspects of planning, developing,
constructing, operating, and maintaining commuter rail, including system
planning, advanced corridor planning, preliminary engineering, final design,
construction, negotiating with railroads, and developing financial and
operating plans. The commissioner may enter into a memorandum of
understanding or agreement with a public or private entity, including a
regional railroad authority, a joint powers board, and a railroad, to carry out
these activities. The commissioner, or public entity contracting with the
commissioner, array contract with a railroad that is a Class I railroad under
federal law for the joint or shared use of the railroad's right -of -way or the
construction, operation, or maintenance of rail track, facilities, or services for
commuter rail purposes. Notwithstanding section 3.732, subdivision 1, clause
(2), or section 466.01, subdivision 6, sections 466.04 and 466.06 govern the
liability of the Class I railroad and its employees arising from the joint or
shared use of the railroad right -of -way or the provision of commuter rail
construction, operation, or maintenance services pursuant to the contract.
Notwithstanding any law to the contrary, a contract with the Class I railroad
for any commuter rail service, or joint or shared use of the railroad's right -of-
way, may also provide for the allocation of famancial responsibility,
indemnification, and the procurement of insurance for the parties for all types
of claims or damages. A contract entered into under this section does not
affect rights of employees under the Federal Employers Liability Act or the
federal Railway Labor Act.
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We disagree. Indeed, the statute appears to clearly provide to the contrary and to
recognize the complexity of commuter nail projects and the necessity for MnDOT to involve
many and various public agencies, bodies and private businesses in order to fulfill its legislative
mandate. It is difficult to see how such a project could be achieved without multilevel
cooperation and coordination. Respondent has not provided the Court with any authority for the
proposition that MnDOT is prohibited from delegating land acquisition authority or from
entering into joint power agreements or memoranda of understanding for that purpose or from
accepting property into a commuter rail project acquired by another agency through the use of
eminent domain. See, e.g., Lundell v. Cooperative Power Assn., 707 N.W.2d 376. (While the
statute did not empower the DNR to acquire property for a trail by condemnation, the statute did
not prohibit the DNR from acquiring property for a trail from another public agency which
acquired the property through eminent domain.) Nor is this action a "Joint Acquisition" within,
the meaning of § 117.016 (2006).
Minnesota law does not require the end user or ultimate beneficiary of the taking to be
the agency exercising the acquisition through eminent domain. Lundell v Cooperative Power
Ass'n., 707 N.W.2d at 382; City of Minneapolis v Wurtele, 291 N.W.2d 388, 390 (Minn. 1980);
Housing and Redevelopment Authority in and for the City of Richfield v. Walser Auto Sales, Inc.,
630 N.W.2d 662, 668 -69 inn App. 200 1) affd by, Housing and Redevelopment Authority ex
rel. City of Richfield v. Walser Auto Sales, !nc 641 N.W.2d 885 (Minn._ 2002); City of Granite
Falls v. Soo Line Railroad Co., 742 N.W.2d 690, 699 (Minn. App. 2007)(review granted, March
18, 2008). Indeed, the end user need not be a public entity at all See, e.g. Wurtele, 291 N.W.2d
at 390; falser Auto Sales, Inc., 641 N.W.2d at 885. The question is whether the taking is for a
public purpose. As recently stated by the Court of Appeals:
We do not read our takings jurisprudence to make a distinction based on
whether the entity that actually develops the property for a public purpose is a
public or private entity. Rather, we read existing law to focus on whether the
proposed use is public or not.
City of Granite Falls, 742 N.W.2d at 698. Thus, there is no constitutional impediment
prohibiting a condemning authority from acting as a conduit for another entity provided the
taking serves a legitimate public purpose.
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Zn. 2006, the Legislature amended Minn, Stat. Chapter 117 in response to Kelo v. City of
New London, 545 U.S. 469 (2005) and perhaps in response to the above - referenced Walser Auto
Sales decisions, 630 N.W.2d 662, of d, 641 N.W.2d 885 (wherein land was taken by the public
authority from private owners for Best Buy's corporate headquarters). Kelo was a controversial
U.S. Supreme Court decision which invited and prompted legislative changes to eminent domain
law in many states, including Minnesota. The new legislation was designed to prevent
condemnations which take property from one private owner and transfer the property to a
different private entity solely for the purpose of economic development. The question becomes
whether the 2006 legislative amendments to Chapter 117 prohibit the FIRA from exercising the
power of eminent domain to acquire Respondent's property.
The 2006 legislative amendments to Chapter 117 pertinent to this case are the repealing
of Section 117.011 and its replacement with Section 117.012, and the amendments to section
117.025. Section 117.012, subd. 1 and 2 provide:
Subdivision 1. Preemption. Notwithstanding any other provision of law,
including any charter provision, ordinance, statute, or special law, all
condemning authorities, including home rule charter cities and all other
political subdivisions of the state, must exercise the power of eminent domain
in accordance with the provisions of this chapter, including all procedures,
definitions, remedies, and limitations. Additional procedures, remedies, or
limitations that do -not deny or diminish the substantive and procedural rights
and protections of owners under this chapter may be provided by other law,
ordinance, or charter.
Subd. 2. Requirement of public use or public purpose. Eminent domain
may only be used for a public use or public purpose.
The part of Section 117.025 relevant here is subdivision 11, which provides:
Subd. 11. public use; public purpose. (a) "Public'use" or "public purpose"
means, exclusively:
(1) the possession, occupation, ownership, and enjoyment of the land by the
general public, or by public agencies;
(2) the creation or functioning of a public service corporation; or
(3) mitigation of a blighted area, remediation of an environmentally
contaminated area, reduction of abandoned property, or removal of a public
nuisance.
(b) The public benefits of economic development, including an increase in tax
base, tax revenues, employment, or general economic health, do not by
themselves constitute a public use or public purpose.
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The impact of this legislation is a question of first impression. The provisions of
§117.025, subd. (a)(1)(2)(3) are inclusionary, i.e., they delineate those circumstances where a
public purpose does exist. Subdivision I I (b) is exclusionary: it delineates circumstances where a
public purpose does not exist. It is Respondent's contention that Petitioner's purpose for the
taking is, and stanitorily can only be, the public benefits from economic development. Under
§ 117.025, subd. I l (b), this purpose is an excluded public purpose and thus Petitioner lacks
authority for the taking.
So what is to be made of the language of subdivision I I (b)? Specifically, what is the
meaning of the phrase "...do not by themselves..." from that clause? To the Court they inean
that in the absence of some additional public purpose, the public benefits of economic
development do not constitute a public purpose or authorize a taking. The clear purpose of this
section is to prevent cities from taking property from one private owner and transferring it to
another private owner in order to enjoy the benefits of the resulting economic development.
Respondent asserts that as a result of this legislation, a series of court decisions are no longer
good law to the extent they stand for the proposition that property may be transferred from one
private owner to another through condemnation for the purpose of economic development. City
of Duluth v State, 390 N.W.2d 757; City of Minneapolis v. Wurtele, 291 N.W.2d 388; Walser
Auto Sales, Inc., 630 N.W.2d 662 (Minn. App. 2001) affd Walser Auto Sales, Inc 641 N.W.2d
885 (Minn. 2002)
Respondent may or may not be correct. It is not for this Court to make such a sweeping
declaration. However, assuming that interpretation is true, it does not bar the petition in this case
as here there is some additional public purpose. The Best Buy or Kelo situation—using
economic development to justify transferring property fxom one private owner to another through
condemnation—is not the situation before the Court. The IMA is taking property froin a private
owner and transferring it to public agencies for "the possession, occupation, ownership, and
enjoyment of the land by the general public, or by public agencies...." This is squarely within
the definition of "public use" or "public purpose" under §117.025, subd. 11(a) (1). There is, as
there must be for the HRA under §469.012, economic development benefits as well. But those
benefits do not "by themselves" constitute the public purpose for the taking. Consequently, the
limitations expressed in § 117.025, subd. 11 do not prohibit the taking under the unique facts of
this case.
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It is true that the power of condemnation, possessed by an MRA is limited to those
circumstances described in §469.012 and for the purposes described in §469.001. If the IRA
were acting unilaterally in this case, the petition might well fail. It is not necessary for the Court
to decide that issue. The HRA is acting in concert with the State of Minnesota through MnDOT,
Anoka. County through ACRR.A., and BNSF as reflected in a series of detailed agreements and
memoranda ofunderstandirig. These agreements were clearly contemplated and authorized by
the Legislature as set forth in § §174.$2 and 398A.06. Additionally, under §471.59, government
agencies may act jointly and exercise any common power. To the extent, if any, the HRA. is
exceeding its individual condemnation authority, it has ample authority nonetheless by virtue of
the multiple agreements with agencies which also possess condemnation authority.
The Court does not read § 117.025 as prohibiting agencies from acting in concert through
joint power agreements, memoranda of understanding or other similar agreements where one
agency acts as a conduit for another when exercising the power of eminent domain_ Had the
Legislature intended this result, it could easily have done so by inserting language into
§§ 117.012 and 117.025 requiring the condemning authority to also be the ultimate user of the
acquired properly. § 117.025, subd. 11(a) demonstrates that the Legislature knows how to use the
word "exclusively." Its absence from the very next clause in subdivision 11 (a)(1) is
noteworthy.
The HRA has its individual purposes for being involved in this project Those purposes
are related to the benefits of anticipated economic development. The project is consistent with
the City's Comprehensive Plan and with the City's Development Project No. 1. The City has
created individual TIF districts within Development Project No.1 with the goal of increased
development. The City anticipates the construction of the rail station will spur development in
the University A,venueMast River Road/Interstate 694 area.
Respondent's criti.eism of Petitioner's evidence on this issue has merit. The showing
made by Petitioner in this regard was minimal. However, it is well settled that the condemning
authority's determination of public purpose and necessity is a legislative act entitled to deference
from the courts. "If it appears that the record contains some evidence, however informal, that the
taking serves a public purpose, there is nothing left for the courts to pass upon." .Housing and
Redevelopment authority in and for the City of Minneapolis v. Minneapolis Metropolitan
Company, 259 Minn. 1,15,104 N.W.2d 864, 874. The PIRA found that the station would
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further the goals and objectives of the BRA and "will further encourage development and
redevelopment of the area surrounding the commuter rail station...." Resolution 2008 -01. This
conclusion is not arbitrary under the record established.
III
Minn. 8tat. § 117.036 (2006) requires that before a condemning authority commences
eminent domain proceedings, the authority shall: (1) obtain an appraisal of the property sought;
(2) provide a copy of that appraisal to the property owner, and (3) "make a good faith attempt to
negotiate personally with the owner of the property in order to acquire the property by direct
purchase instead of the use of eminent domain proceedings." The appraisal is to be provided to
the property owner not later than 60 days prior to submission of a petition under § 117.055. Id.
Substantial compliance with this statute is sufficient, particularly where negotiations would be
useless or futile, and where the condemning authority is public rather than private. City a, f
Granite Falls, 742 N.W.2d at 696. Additionally, the fact that the statute sets forth no particular
consequences for a failure to comply with its provisions favors the applicability of the substantial
compliance doctrine to §117.036. Id.
Petitioner made its public purpose and necessity determination in Resolution 2008 -01 on
January 10, 2008. Petitioner presented evidence that it attempted to negotiate with Respondent's
authorized representative over the course of approximately six weeks from January 11 to
February 27, 2008. Petitioner initially presented Respondent with an appraisal that had been
submitted to Respondent some months earlier by Anoka County. Petitioner secured an updated
appraisal of the property and adjusted its offer accordingly. Petitioner also presented Respondent
with a copy of the updated appraisal prior to filing the Petition for Condemnation, though clearly
within 60 days of the filing.
The parties made significant progress in the course of their negotiations. It became clear
that further negotiating would have been futile due in part to Respondent's history with the City
of Fridley and Respondent's ongoing, separate litigation with the City related to zoning and
special assessment issues. Respondent sought concessions related to those issues which needed
to be secured from the City of Fridley, a separate legal entity. The written correspondence
between the parties documenting these negotiations makes clear that Respondent was unwilling
to negotiate on many points. Though the parties reached an impasse, it is clear that Petitioner
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made a good faith attempt to acquire the property by direct purchase. City of Granite falls, 742
N.W.2d at 696 -97.
While the Court concludes petitioner substantially complied with the requirements of
§ 117.036, the Court is troubled by the lack of strict compliance with the requirement to timely
deliver a current appraisal to Respondent before filing the petition_ It seems to the Court that
Petitioner moved suddenly once it realized the small window of opportunity that existed for
construction of the tunnel by BNSR The untimely delivery of an appraisal should not impair a
property owner from challenging public purpose and necessity. However, Respondent had less
time to prepare for his challenge to the petition than the statute contemplates. The Court
adjourned the hearing one week to give Respondent additional time and compelled Petitioner to
produce its witnesses for fin:ther testimony. Respondent had the benefit of skilled and
experienced counsel and made a significant showing. It is the Court's experience that this area
of law requires legal expertise which is expensive. Further, the cost of preparing for a contested
petition challenge on short notice comes with a premium. In Granite Falls the Court indicated
that in the proper case it would not hesitate to approve sanctions against an authority for failure
to comply with the statute. Id. at 97. The Court believes sanctions are appropriate in this case
and awards Respondent $3,000.00 in attorneys' fees.
B.A.S.
WO
KRASS
MONROE
Phillip R. Krass
NATIONALLY CERTIFIED CIVIL TRIAL SPECIALIST
pkrass @krassmonroe.com
April 23, 2008
VIA FACSIMILE AND U.S. MAIL
Scott M. Rusert
Flynn Gaskins & Bennett LLP
333 South Seventh Street
Suite 2900
Minneapolis, MN 55402
Re: The Housing and Redevelopment Authority in and for the City of Fridley, Minnesota,
a public body corporate and politic v. Main Street Fridley Properties, LLC
Court File No. 02 -CV -08 -676
Our File No. 9571 -71
Dear Mr. Rusert:
I am enclosing and serving upon you the Order granting -the Fridley HRA its condemnation
petition and authorizing the quick take upon depositing with the Court the amount of our
appraisal. We will make that deposit on or before the 30th day of May, and your client is
certainly welcome to retrieve those funds from the Court. Because the amount is so large, we
will ask the Court to put the funds in an interest - bearing account until you proceed to ask that
those funds be withdrawn. We intend to create no difficulty or obstacle to you in that regard and
would be happy to assist you in any reasonable way to retrieve those funds.
In addition to that, as indicated in our last correspondence with your client, it is the Fridley
HRA's intended desire that this matter be resolved by negotiation rather than through the
condemnation process. If that is a possibility and you believe that further negotiations may bear
fruit, we would be happy to sit down at any time with just the attorneys, the attorneys and the
parties, or through the auspices of a third party mediator to attempt to resolve this. We will wait
to hear from you in that regard. Should you have any further questions, do not hesitate to
contact me.
Very
P.A.
Phillip R. Krgss
Attorney at Law
PRK/djb
Enclosure
cc: Client
G:\ WPDATA \F\FRIDLI_l'\71 \C0R\RUSERT PRK 1.D0C
8000 Norman Center Drive, Suite IOOO
Minneapolis, Minnesota 55437 -1178
TEL 952.885.5999 Fax 952885.5969
www.krassmonroe.com
Fridley HRA
Housing Program Summary
Cover Page
May 1, 2008 HRA Meeting
Report Description
Loan Application Summary Loan application activity (e.g. mailed
out, in process, closed loans) for March
and year -to -date.
Loan Origination Report
Remodeling Advisor
Loan originations for April and year -to-
date.
Shows the number of field appointments
scheduled and completed for the
Remodeling Advisor Services
administered by Center for Energy and
Environment.
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Fridley HRA
Loan Origination Report
April 25, 2008
Loan Originations
This Previous
Month Months YTD
HRA Loans (incl. CFUF Discount loans) 2 1 3
HRA Deferred Loans - -
Other Loans (non -HRA) 1 1
Total 3 1 4
Funding Sources
Duplex - -
TH -Plex - -
4 to 9 Units - -
10 to 20 Units - -
20 + Units
Total 3 1 4
Types of Improvements
Interior # of Projects % of Total
Bathroom remodel
-
This
Previous
-
0%
General plumbing
Month
Months
YTD
Fridley HRA
$
41,200.00
$ 20,000.00
$ 61,200.00
MHFA
$
-
$ -
$ -
Met Council
$
-
$ -
$ -
CDBG /HOME
$
-
$ -
$ -
CEE
$
2,895.00
$ -
$ 2,895.00
Other
$
$
$
1
Total $
44,095.00
$ 20,000.00
$ 64,095.00
Types of Units Improved*
-
0%
Landscaping
`some households receive more than 1 loan, so the # of loans may not equal
# of units improved
-
0%
This
Previous
Month
Months
YTD
Single Family
3
1
4
Duplex - -
TH -Plex - -
4 to 9 Units - -
10 to 20 Units - -
20 + Units
Total 3 1 4
Types of Improvements
Interior # of Projects % of Total
Bathroom remodel
-
0%
Kitchen remodel
-
0%
General plumbing
-
0%
Heating system
2
40%
Electrical system
-
0%
Basement finish
-
0%
Insulation
-
0%
Room addition
-
0%
Misc. interior projects
-
0%
Foundation
1
20%
Exterior '
Siding/Fascia/Soffit
1
20%
Roofing
0%
Windows/Doors
1
20%
Garage
-
0%
Driveway /sidewalk
-
0%
Landscaping
0%
Misc. exterior projects
-
0%
Fridley HRA
Performance Report
April 25, 2008
Loans 50 3 6%
Loan Volume $500,000 $ 61,200.00 12% $438,800.00
Origination Fees $27,500 $1,650.00
Inspection Fees $2,800 $0
$30,300 $1,650.00 5%
Loans 20 0 0%
Loan Volume $200,000 $0.00 0% $200,000.00
Origination Fees $11,000 $0.00
Inspection Fees $2,800 $0
$13,800 $0.00 0%
All Programs $5,000.00 $0.00 0% $5,000.00
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FRIDLEY HOUSING & REDEVELOPMENT AUTHORITY
May 1, 2008
nt ::
FRIDLEY HOUSING & REDEVELOPMENT AUTHORITY
May 1, 2008
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I
1. Housing Sales Data produced b the North Metro
Attached to this update is a recent update of the housing market in Fridle y , p Y
Realtors Association. This helps to quantify the tales of woe was read
sits on he market has surprisingly,
listings, and sales are down significantly while the number of days
41 %, from 132 days to 187 days.
2. Chamber of Commerce
Last week I had the opportunity
portu effortspn Fridley. Staff from Mounds View and Co umb a Heights also provided
development/redevelopment
I had a chance to speak with Jeff Van Keuren of
updates of efforts in their communities. During the luncheon,
BAE Systems and Don Hagmann of Medve been helpful this leg slative sess on witting lence of
ng thesGovernoe1and
employees. Both of these gentlemen ha
other elected officials know the importance of Northstar to industry in Fridley.
5. Foreclosures Workshop in Blaine
Rick, Mike and I had the opportunity to attend a Foreclosure Prevention ejy through g P
earlier this week. As the numbers of foreclosures continue t (which often lead tocrim crime), Yards'
problems for both the City and the HRA. Vacant buildings
and unpaid utility bills are all outfall from these foreclosed homes.
to start seeing the effect of these foreclosures on our loan program, and as a 2"d'
is going that we will recover unpaid balances on any of our loans
The HRA g g
mortgage on these properties, it is verg unlikely to take a closer look at what the HRA
given to properties that end up the nexclt sure. ews are starting
should expect to write -off over
to
e services of the Minnesota Home Ownership Centex
We plan to really push th our residents that may
situation• The earlier that these people are able to seek financial counseling from
be facing a foreclosure be able to save their homes.
the Center, the more likely it is that they may so about that, hopefully May will
Doesn't seem that I have much good news to report this month, sorry
contain more highlights for Fridley.
If there are any items you w�dleylilmn usexed m upcoming issues of the Non- Agenda Update please send
me an a -mail. bohnp(�
It
"180he I 00o
Market Updates for goo Twin Cities Communities
A free research tool from the North Metro REALTORS® Association
Brought to you by the unique data- sharing traditions of the REALTOR@ community
Fridley
Anoka County, MN
New Listings
Closed Sales
Average Sales Price
Percent of Original List Price Received at Sale*
Average Days on Market Until Sale -
Single- Family Detached Inventory
Townhouse -Condo Inventory
'floes not account for list prices from any previous listing contracts
Activity —Most Recent Month
81 0 New Listings
losed Sales
North Metro REALTORS ® Association
Activity —Year to Date
162 13 New Listings ..e
2007
Average Sales Price
$207,219
3191.850
March
2008
02007 $197,428
$175,096
132008
`
x
Year to Date
2007 2008
Ratio of Sales Price to Original List Price
96.0% 91.4% 132007 94.8% 89A11.
March Year to Date
Average Days on Market Until Sale Inventory of Homes for Sale
187 178 123 131
March Year to Date
iitlgle- Family Detached Townhouse -Condo
Some of the figures referenced in this report are for only fine month worth I activity. As such, they can sometimes look extreme due
to the small sample size involved. For broac'er historical market information, please feel free to contact us.
The 100@ Is a trademark of the Minneapolis Area Association of REALTORSO. The North Metro REALTORS@ Association uses it under license.
It Larch
Year to Date
2007
2008
Change
2007 2008
Change
81
55
-32.1%
162 149
-8.0%
20
17
-15.0%
53 37
-30.2% l
$207,219
1-191,850
-7.4%
$197,428 $175,096
-11.3% i
96.0%
91.4%
-4.8%
94.8% 89.4%
-5.6% f
132
187
+41.5%
124.941176 178
+42.2% I
123
131
+6.5%
- -
-
49
44
-10.2%
- -
-�
' City market time figures
,Mere first available in August 2006, accounts for previous listing contracts
Activity —Year to Date
162 13 New Listings ..e
2007
Average Sales Price
$207,219
3191.850
March
2008
02007 $197,428
$175,096
132008
`
x
Year to Date
2007 2008
Ratio of Sales Price to Original List Price
96.0% 91.4% 132007 94.8% 89A11.
March Year to Date
Average Days on Market Until Sale Inventory of Homes for Sale
187 178 123 131
March Year to Date
iitlgle- Family Detached Townhouse -Condo
Some of the figures referenced in this report are for only fine month worth I activity. As such, they can sometimes look extreme due
to the small sample size involved. For broac'er historical market information, please feel free to contact us.
The 100@ Is a trademark of the Minneapolis Area Association of REALTORSO. The North Metro REALTORS@ Association uses it under license.