HomeMy WebLinkAbout2023-02-15 WC Recorded Document #43998946 - Development AgreementReceipt:# 616049
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4844 North 300 West
Suite 202
Provo UT 84604
4398946
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Certified Filed and/or recorded on:
2/15/2023 3 34 PM
Office of the County Recorder
Washington County, Minnesota
Amy Stenftenagel, County Recorder
NOTICE OF CERTIFICATION
STATE OF MINNESOTA )
COUNTY OF WASHINGTON ) ss.
CITY OF OAK PARK HEIGHTS )
I, the undersigned, being duly qualified and acting as City Administrator for the City of Oak
Park Heights, Minnesota DO HEREBY CERTIFY that the attached document:
Development Agreement
Regarding .Property .Situated At
5416 Stagecoach Trail, N.
made and entered into the 28th day of December, 2022, by and between the City of Oak Park
Heights and Croixview Holdings, LLC, has been placed on file at the offices of the City of Oak Park
Heights, and that the same is a full, true, and complete original of said document within the files of
the City of Oak Park Heights.
2023.
WITNESS my hand and the seal of the City of Oak Park Heights, this 11th day of January,
ff,
Eric hnson, City Adizistrator
CITY OF OAK PARK HEIGHTS
WASHINGTON COUNTY, MINNESOTA
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is made effective December
28th, 2022 ("Effective Date") by and between the CITY OF OAK PARK HEIGHTS, a municipal
corporation and political subdivision organized under the laws of Minnesota ("City") and
CROIXVIEW HOLDINGS LLC, a Minnesota limited liability company ("Developer"), and
together with the City, the ("Parties").
RECITALS
WHEREAS, Developer is the Developer of real property legally described on the attached
Exhibit A (the "Property") and located within the corporate limits of the City; and
WHEREAS, Developer desires to develop the Property for an office building and
warehouse; and
WHEREAS, Developer has applied to the City for a Conditional Use Permit ("CUP") to
allow for outdoor storage and on November 14, 2022, the City Council approved a CUP for the
outdoor storage as memorialized by Resolution No. 22-11-37; and
WHEREAS, by this Agreement, Developer and the City desire to set forth their respective
rights and obligations of the Parties.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained in
this Agreement, the Parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. In this Agreement, unless a different meaning clearly appears from
the context:
"Agreement" means this Development Agreement by and between the City and the
Developer, as the same may from time to time be mutually modified, amended, or supplemented
by a signed written agreement.
"City" means the City of Oak Park Heights, Minnesota.
"Code" means the City's Code of Ordinances.
"Conditional Use Permit" or "CUP" means the conditional use permit issued to Developer
by the City allowing outdoor storage as a conditional use of the Property.
DEV AGMT - OPH - CROIX 12-28-22 1 of 38
"Construction Plans" means the plans, specifications, drawings and related documents
describing all construction work and improvements to be performed, installed or constructed by
Developer on the Property pursuant to this Agreement. Such plans shall, at a minimum,
include at least the following: (i) grading, drainage, and erosion control plans; (ii) site plans;
(iii) storm sewer and sanitary plans; (iv) street plans (v) constructions plans for any
improvement to be constructed on the property which includes foundation plan, basement
plans, if any; floor plan for each floor; cross-section of each (length and width) elevations
(all sides); (vi) landscape plan, and shall also include adequate plans, drawings, and
specifications relating to all driveways, walks, parking, and other improvements to be
constructed upon the Property by Developer, if applicable. The Construction Plans and
contract documents may be prepared or revised per the recommendations of the City Engineer,
after entering into this Agreement, but before commencement of any work on the Property. If
changes are made per the recommendation of the City Engineer, the most current and revised
Construction Plans shall be incorporated herein. If the Plans vary from the written terms of this
Agreement, the written terms shall control.
"County" means Washington County, Minnesota.
"Developer" means Croixview Holdings, LLC, a Minnesota limited liability company, or
its successors or assigns.
"Improvements" means all Improvements to be installed and constructed on the Property
in conformity with the Construction Plans.
"Property" means the real estate described on the attached Exhibit A.
"Project" means the development and construction on the Property by Developer of the
Improvements pursuant to the terms of this Agreement.
"Unavoidable Delays" means delays, outside the control of the party claiming an
occurrence, which are the direct or indirect result of strikes, other labor troubles, unusually severe
or prolonged bad weather, acts of God, fire or other casualty to the Improvements, litigation, or
other administrative procedures commenced by third parties which, by injunction or other similar
judicial action, directly result in delays, or acts or requirements of any federal, state or local
governmental unit (other than the City acting in its contractual capacity under this Agreement)
which directly results in delays.
1.2 Construction. Wherever in this Agreement the singular number is used, the same
shall include the plural where appropriate, and words of any gender shall include each other gender
where appropriate. The headings, captions or arrangements used in this Agreement, unless
specified otherwise, for convenience only and shall not be deemed to limit, amplify or modify the
terms, or affect the meaning, of this Agreement.
ARTICLE II
DEVELOPMENT OF PROPERTY
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2.1 Developer's Covenant to Develop. Developer shall, at Developer's expense,
perform or cause to be performed, the development of the Property and construction of the
Improvements in accordance with the Construction Plans and this Agreement. Developer shall
use its reasonable efforts to complete the Improvements substantially in accordance with the
Construction Plans, which plans and specifications shall be subject to review and approval by the
City as may be normal, customary or required in order to proceed with the development of the
Property.
2.2 No Reconveyance. Developer may not reconvey the Property to any third party
without the express consent of the City or until all improvements and commitments have been
fully completed as outlined herein; provided, however, that any conveyance to a third party must
provide for the third party's assumption of any and all performances by the Developer under this
Agreement.
2.3 Fees and Costs. Except as otherwise specified in this Agreement, Developer shall
pay all costs incurred by it or the City in conjunction with the development of the Property
including, but not limited to, planning, engineering and inspection expenses, and legal fees
incurred in connection with the approval and acceptance of the subdivision and plat, preparation
of this Agreement any amendments hereto, development of the Property, and all costs and
expenses incurred by the City in monitoring and inspecting the development of the Property.
Unless required to be paid as a condition of the approval of this Agreement, all such amounts shall
be paid with in thirty (30) days after being billed.
2.4 Right to Proceed. The Developer shall not construct Improvements on the Property
until all the following conditions precedent have been satisfied:
(a) The City Engineer has reviewed and approved all final Construction Plans.
(b) This Agreement has been executed by the Parties and recorded with
Washington County;
(c) The Developer has provided the City with the required security as set forth
in Article VI.
(d) All required permits have been obtained.
(e) The City has issued a notice that all conditions precedent have been satisfied
and that the Developer may proceed to construct the improvements
contemplated by this Agreement.
ARTICLE III
ZONING, USE, AND PERMITS
3.1 Zoning. The Parties acknowledge and agree the Property is Business Warehouse
District (B -W) and an office building and warehouse are an allowed use in the Business Warehouse
District (B -W) and a CUP is required in order for Developer to develop the Property with outdoor
storage. This use, together with the CUP, conforms to the Developers desired use and the Parties
agree pursuant to ordinance, is the proper zoning classification for the development of the Project.
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3.2 Use. Developer must use the Property in accordance with this Agreement.
Developer shall comply with all applicable federal, state, and local laws and regulations relative
to Developer's use of hazardous materials, if any.
3.3 Permits. Developer shall be responsible for securing all necessary approvals and
permits from all appropriate federal, state, regional and local jurisdictions prior to the
commencement of construction.
(a) Prior to any work beginning in public right-of-ways, Developer shall obtain
all appropriate permits from the State, County and/or the City.
(b) Prior to commencement of construction, Developer shall obtain the required
permit from the Middle St. Croix Watershed District.
3.4 Compliance with Code. Developer shall construct and install all Improvements,
and provide all plans, specifications, and other documents in accordance with the provisions of
this Agreement, the provisions of the City's Code of Ordinances, and where applicable state and
federal law, for review and oversight by the pertinent committees of the City, Public Works
Director, City Engineer, and where applicable, the City Attorney and state of Minnesota.
ARTICLE IV
CONSTRUCTION OF THE IMPROVEMENTS
4.1 Construction of Improvements. Developer shall, at Developer's expense, perform
or cause to be performed, the development of the Property and construction of the Improvements
in accordance with the Construction Plans - generally depicted in Exhibit 1 - and this
Agreement, including, but not limited to the following:
(a) Surveying and staking
(b) Construction Materials Testing
(c) Surface improvements
(d) Storm water improvements, including related pipes, swales, ditches, filtration
basins, structures, and other improvement noted within the plan set
(e) Setting of survey monuments
(f) Potable water and sanitary sewer connection infrastructure and improvements
(g) Gas, electric, telephone and cable lines
(h) Site grading and erosion controls
(i) All courses of pavement
(j) Other items as necessary to complete development as stipulated herein or in
other agreements
4.2 Easements. Developer shall grant and dedicate through reservation in the warranty
deed, by final plat, or by separate easement agreement the following easements in favor of the City:
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a. Along the Easterly border adjacent to the right of way of St. Croix Trail, a ten (10)
foot wide trail easement to accommodate a future potential trail system along St.
Croix Trail. The easement shall not increase any City required building setbacks.
b. Around the borders of the property a five (5) foot easement for potential future
drainage and utility purposes.
4.3 Submission and Approval of Construction Plans. Developer shall submit the
Construction Plans to the City for review and approval. The City shall, within 30 days from the
receipt of the proposed Construction Plans, approve or disapprove the Construction Plans. The
City's review is seeking substantial compliance with plans submitted under the Conditional Use
Permit as approved. If the City disapproves any of the Construction Plans, Developer shall submit
revised Construction Plans within a reasonable time from the date of rejection. Upon
resubmission, the City shall review and approve or disapprove the revised Construction Plans
within 10 days of submittal. This process shall repeat until the Construction Plans are approved
by the City.
4.4 Modification of Construction Plans. Prior to completion of the Improvements as
certified by the City, if Developer desires to make any substantial change in the Construction Plans
which significantly affects the Project, Developer shall submit the proposed change to the City for
approval. If the Construction Plans, as modified, conform to the requirements of this Agreement
and meet all applicable ordinances, the City shall approve the proposed change and notify
Developer in writing of its approval. If the City disapproves the modification of the Construction
Plans, the City shall notify Developer within 14 days of submission and Developer may submit
revised, modified Construction Plans within a reasonable time from the date of rejection. This
process shall repeat until modified Construction Plans are approved by the City.
4.5 Time of Performance. Developer shall promptly begin and diligently prosecute to
completion construction of the Improvements and, subject to Unavoidable Delays and
performance by or acts of the City, the construction of the Improvements shall be commenced and
completed within twenty-four (24) months from the date of this Agreement. Developer may,
however, request an extension of time from the City, which extension shall not be unreasonably
withheld. If an extension is granted, it shall be conditioned upon updating the security posted by
the Developer to reflect cost increases and the extended completion date.
4.6 Surveying and Testing. Developer shall provide all staking, surveying, sewer and
water service testing, and material testing for the Improvements to ensure the completed
Improvements conform to the approved plans and specifications. Any additional testing and
inspection that is required by the City shall be provided by the Developer at the Developer's
expense.
4.7 Grading Plan / Site Grading. Site grading shall be completed by Developer in
accordance with the Construction Plans at its own cost and expense. Completed site grading shall
be inspected and approved by the City's Engineer.
4.8 Erosion Control. Prior to site grading, and before any construction is commenced
or building permits are issued, a construction site erosion and sediment control plan and a
stormwater management plan shall be submitted, reviewed, and approved by the City. Erosion
control shall be carried out pursuant to approved plans consistent with City, State, or federal
requirements, whichever are more restrictive. Erosion control shall be carried out pursuant to all
applicable state codes and statutes, and ordinances of the City. Developer shall cause all grading,
excavation, open cuts, side slopes, and other land surface disturbances to be mulched, seeded,
sodded, or otherwise protected that erosion, siltation, sedimentation and washing are prevented in
accordance with the plans and specifications approved by the City Engineer. All drainage and
erosion control matters are subject to review and approval of the City Engineer. Construction site
erosion control measures shall be installed, maintained, and upon completion of the Project,
removed.
4.9 License. Developer hereby grants to the City, its agents, employees, officers and
contractors a temporary license to enter the Property to perform all work and inspections deemed
appropriate by the City. Such license shall terminate upon completion of the Project.
4.10 Conditions of Site Plan. The City and Developer stipulate and agree the City's
approval of the final Site Plan is conditioned upon satisfaction of all items outlined in the City
Council resolution of approval and all terms and conditions contained in this Agreement.
4.11 Utilities. All utilities are subject to review and approval by the City. A drainage
and utility easement shall be provided along the perimeter of the Property in accordance with the
City's Code.
4.12 Storm Water Facilities. The Developer shall survey all drainage and storm water
holding ponds as required by the City and as shown on the site plan. The Developer shall be
responsible for the ongoing operation and maintenance of the Storm Water Management Facilities
as required by the City under the terms of the Stormwater Management Facility Maintenance
Agreement attached hereto as Exhibit B. Developer shall dedicate certain drainage and utility
easements to serve the Project. Such areas are incorporated within the drainage license depicted
in Exhibit B and upon execution of this Development Agreement and the recording of the
Stormwater Management Facility Maintenance Agreement conveyed to the City.
4.13 Review, Professional, and Inspection Fees and Costs for Improvements. Except as
otherwise specified in this Agreement, Developer shall pay all costs incurred by it or the City in
conjunction with the development of the Property and construction of the Improvements,
including, but not limited to, planning, engineering and inspection expenses, and legal fees
incurred in connection with the preparation of this Agreement any amendments hereto,
development of the Property, and all costs and expenses incurred by the City in monitoring and
inspecting the development of the Property and construction of the Improvements. Unless required
to be paid as a condition of the approval of this Agreement, all such amounts shall be paid within
thirty (30) days after being invoiced. Invoices from the City to Developer shall be mailed to
Developer at the address set forth in Section 13. 1, or such other address as Developer provides in
writing to the City.
Legal Fees. Developer agrees to pay all of the City's legal fees and costs incurred
in relation to the development of the Property, whether performed by the City
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Attorney or his designee, including, but not limited to, the review of all documents,
plans, and plats submitted by Developer, the negotiation and drafting of this
Agreement, all legal research, the drafting of any related documents, including
ordinances, as well as any time incurred in the various and miscellaneous
involvements which have been or are required during the development processes.
Engineering. Developer agrees to pay all of the City engineering fees and costs
incurred in relation to the approval of this Project, whether provided by the City
Engineer, a staff engineer or technician or designated employee or by a consultant,
including, but not limited to, the review of all documents, plans, and plats submitted
by Developer, and oversight of the Project.
Planning. Developer agrees to pay all of the City's planning fees and costs incurred
in relation to the approval of this Project, whether provided by staff, technicians,
designated employees, or by a consultant, including, but not limited to, the review
of all documents, plans, and plats submitted by Developer, and oversight of the
Proj ect.
Inspection Fees and Costs. Developer agrees to reimburse the City for the costs of
inspection and related services provided by the City or by a consultant on the basis
of all such services rendered. The inspector of the Improvements on behalf of the
City shall be chosen by the City. In the event that the inspector chosen by the City
for site inspection during the improvement construction phase is someone other
than an employee of the City, the City Engineer may require involvement by a firm
in oversight of those inspection processes from time to time as deemed necessary.
4.14 Contracts. All such contracts shall conform to the ordinances and specifications of
the City in the construction of all utilities and storm water facilities and the directives of the City
Engineer.
4.15 As -Built Survey. Developer shall conduct and provide to the City an as -built
survey indicating all final elevations and improvements on the Property, including location of
utility lines and connections.
ARTICLE VI
SECURITY DEPOSIT FOR DEVELOPMENT
6.1. Security. To guarantee compliance with the terms of this Agreement, Developer
shall furnish the City with a cash escrow deposit or an irrevocable letter of credit from a financial
institution acceptable to the City in an amount of $50,000 to both secure the Developer's intent to
proceed with the overall development plans and once construction is underway, to specifically
cover the costs and construction of the grading, utility connections, storm water improvements,
drainage improvements, and landscaping improvements. The Developer shall provide any letter
of credit to the City's Attorney for review and approval. The Letter of Credit or Escrow Deposit
shall serve as compensatory award of liquidated damages in favor of the City in the event the
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Developer fails to commence and complete the enumerated improvements and/or otherwise fails
to complete or abandons the Development project in an incomplete status. The Developer is
required to build the project as proposed, and if the Developer abandons the entire project before
undertaking any improvements, the entire escrow security shall be forfeited to the City as
liquidated damages.
6.2. Reduction in Letter of Credit or Return of deposit. Once the development is
underway, the City Engineer shall control the reduction of the letter of credit or return of deposit
based upon the request of the Developer demonstrating satisfactory completion of elements of the
grading, utility connections, storm water and drainage improvements, and landscaping
improvements have been completed.
The letter of credit or escrow deposit may be released in full and returned to the Developer within
60 days of (i) completion of all of the Developer grading, utility connections, storm water, drainage,
and landscaping improvements included in the Development and final acceptance of the storm water
and drainage improvements by the City; (ii) satisfaction of all financial obligations by the Developer
to the City. Prior to releasing any portion of the letter of credit or return of escrow deposit, the City
shall first be satisfied that all work regarding the Developer grading, utility connections, storm water,
drainage, and landscaping improvements has been completed according to the Construction Plans.
In the event of a failure by Developer to complete any grading, utility connections, storm water,
drainage, and landscaping improvements for which the letter of credit or escrow deposit stands as
security, said letter of credit shall not terminate or escrow deposit shall not be returned until the
passage of 120 days from the final date of completion as established herein.
6.3. Drawdown of Letter of Credit/Escrow Deposit. The City may draw down on the
letter of credit or cash deposit without notice if the obligations of the Developer have not been
completed as required by this Agreement. In the event of a default under this Agreement by the
Developer, the City shall furnish the Developer with written notice by mail of Developer's default
under the terms of this Agreement. If the Developer does not cure the default within 21 days of the
date of such notice, the City may draw on the letter of credit or escrow deposit and take such steps as
it deems necessary to remedy the default. With City approval, the letter of credit or cash deposit may
be reduced from time to time as financial obligations are paid and Developer grading, utility
connections, storm water, drainage, and landscaping improvements and other Developer obligations
are completed to the City's requirements.
6.4. Form of Letters of Credit. Letters of credit shall be irrevocable and approved as
to form by the City Attorney. The letter of credit shall secure compliance with all terms of this
Agreement and all obligations of the Developer hereunder. The letter of credit shall be
unconditionally payable to the City and shall be conditioned upon the performance by Developer
of its obligations under this Agreement. A letter of credit shall be automatically renewable until
the City releases Developer as set forth in Section 6.2.
6.5. Warranty. Developer warrants all work required to be performed by it against poor
material and/or faulty workmanship for a period of two (2) years after the full completion and
acceptance by the City of all grading, utility connections, storm water, drainage, and landscaping
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improvements or such longer period as specified in plans and specifications prepared by the City
Engineer for storm water, utility connections, and drainage improvements.
6.6 Liability Not Released. The letter of credit or escrow deposit given under this
Agreement is a security device only, which in no manner limit the liability of Developer to the
City, however arising and regardless of the amount. It shall be the responsibility of Developer to
provide the City not less than 60 days' notice of the expiration of any required letter of credit, or
the payment of a letter of credit amount prior to the expiration date thereof.
ARTICLE VII
ASSIGNMENT AND TRANSFER
7.1. Representation as to Development. Developer's undertakings pursuant to this
Agreement are, and will be used, for the purpose of development of the Property and not for
speculation in land holding. Developer further recognizes that in view of (i) the importance of the
Property to the general welfare of the community, and (ii) the substantial financing and other
public aids that have been made available by the City for the purpose of making such development
possible, subject to performance by the City and Unavoidable Delays, the Improvements will be
constructed in a timely and proper manner.
7.2. Assignment and Transfer. Notwithstanding Section 7.1, the City recognizes that
Developer, once the Improvements have been constructed, may wish to then transfer, assign, or
sell the Project to a third party. Developer shall have the right, at any time, to assign the Project
to: (i) any affiliate, subsidiary or parent corporation of Developer; (ii) any corporation into which
Developer or any such subsidiary, parent or affiliate may merge or be consolidated with; and (iii)
any corporation or partnership or company that acquires substantially all of the assets of the
Developer, provided that the assignee, in writing, assumes all the corporate obligations of
Developer under this Agreement.
ARTICLE VIII
EVENTS OF DEFAULT
8.1 Events of Default. The following shall be "Events of Default" under this
Agreement and the term "Events of Default" shall mean, whenever it is used in this Agreement,
any one or more of the following events:
(a) Failure by Developer to comply with or meet any one of the provisions of this
Agreement, including time deadlines as outlined herein.
(b) Failure by Developer to substantially observe or perform any material covenant,
condition, obligation, or Agreement on its part to be observed or performed under
this Agreement.
(c) Failure by Developer to pay any monetary obligation required by this Agreement.
DEV AGMT - OPH - CROIX 12-28-22 9 of 38
(d) Failure by Developer to complete the enumerated improvements and/or otherwise
fails to complete or abandons the Development project in an incomplete status.
8.2 Remedies on Default.
(a) Upon the occurrence of an Event of Default for any reason, the non -defaulting party
shall give written notice of the default to the defaulting party. If the Event of
Default is not cured or waived, or the period for cure extended, within thirty (30)
days of said notice, then the parties shall have all rights available at law including
the filing of a lawsuit to compel performance by, or to obtain a money judgment
against, the defaulting party. The prevailing party to such an action shall be entitled
to an award of its costs, expenses and reasonable attorney's fees.
(b) If the Event of Default is the failure to pay or reimburse expenses or monies due
under the terms of this Agreement, then the amount claimed shall bear interest at a
rate of 8% per annum, until paid in full (unless later agreed or adjudicated not to
have been due and owing) from the date the period to cure expires.
(c) Any other remedy expressly identified in this agreement.
8.3 No Remedy Exclusive. No remedy in this Agreement conferred upon or reserved
to the City or Developer is intended to be exclusive of any other available remedy or remedies, but
each and every such remedy shall be cumulative and shall be in addition to every other remedy
given under this Agreement now or hereafter existing at law or in equity or by statute. No delay
or omission to exercise any right or power accruing upon any default shall impair any such right
or power or shall be construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient.
8.4 No Additional Waiver Implied by One Waiver. In the event any provision
contained in this Agreement is breached by any party and thereafter waived in writing by any other
party, such waiver shall be limited to the particular breach so waived and shall not be deemed to
waive any other concurrent, previous or subsequent breach hereunder.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF CITY
9.1 Legal Authority. The City represents and warrants to the Developer that it has the
power, authority and legal right to perform all of the covenants and obligations required to be
entered into or performed by the City, as the case may be, under this Agreement.
9.2 Validity. The City represents to Developer that it is empowered to execute and
deliver this Agreement and any other agreements and documents, if any, required hereunder to be
executed and delivered by the City. This Agreement has been and each such document at the time
it is executed and delivered will be duly executed and delivered on behalf of the City. When
executed and delivered to Developer, all such agreements shall constitute a legal, valid and binding
obligation of the City, enforceable in accordance with its terms.
9.3 No Conflict. City represents to the Developer that the execution and delivery of
this Agreement, the consummation of the transactions contemplated in this Agreement, and the
execution and delivery of the documents required to be executed, delivered or acknowledged by
City will not violate any applicable statute, rule, regulation, judgment, order or decree of the State
of Minnesota or a court having jurisdiction over City or its properties.
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF DEVELOPER
10.1 Legal Authority. Developer represents and warrants to the City that it is the fee
Developer of the Property and that all proceedings of Developer necessary to authorize the
negotiation and execution of this Agreement and the consummation of the transaction
contemplated by this Agreement have been taken in accordance with applicable law.
10.2 Validity. Developer represents to the City that to the best of Developer's
knowledge, this Agreement and all other documents required to be executed and delivered by
Developer have been duly and validly authorized, executed and delivered by Developer and will
be enforceable against Developer in accordance with their terms.
10.3 No Conflict. Developer represents to the City that the execution and delivery of
this Agreement, the consummation of the transactions contemplated in this Agreement, and the
execution and delivery of the documents required to be executed, delivered or acknowledged by
Developer will not violate any provision of Developer's Articles of Organization, Operating
Agreement, or any applicable statute, rule, regulation, judgment, order or decree of the State of
Minnesota or a court having jurisdiction over Developer or its properties.
ARTICLE XI
INDEMNIFICATION
11.1 Indemnification. Developer shall indemnify and hold the City harmless against and
from any and all liabilities, costs, and expenses incurred by the City which may in any manner
result from or arise in the course of, out of, or as a result of the actions or inactions of Developer,
its agents, successors, assigns, contractors or employees in connection the construction of the
Development pursuant to this Agreement. Further, Developer shall hold the City and its officers
and employees harmless from claims made by itself and third parties for damages sustained or
costs incurred resulting from approval and development of the Property, except for any costs or
expenses arising from the gross negligence or other wrongful acts or omissions of the City, it's
agents, employees or contractors. Developer shall indemnify the City and its officers and
employees for all costs, damages or expenses that the City may pay or incur in consequence of
such claims, including attorney's fees.
11.2 Contract Insurance. Contractors engaged by Developer to perform the work
required by this Agreement with the public rights-of-way shall, prior to commencing such work,
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submit to the City acceptable proof of the following coverages. Further, these certificates shall
contain a provision that coverages afforded under the policies will not be canceled until at least
ten days written notice has been given to the City. Developer shall file a Certificate of Insurance
provided by Developer's contractors showing the City as additional insured and containing a ten
day notice to the City of cancellation:
(a) Unemployment and workers' compensation insurance which is in strict compliance
with state laws.
(b) Comprehensive personal and public liability insurance which is not less than
$3,000,000.
(c) Comprehensive property damage insurance having limits of not less than
$3,000,000.
(d) Comprehensive automobile liability and property damages insurance for operations
of all hired and non -hired motor vehicles of not less than $1,000,000.
(e) Fire and extended coverage which shall insure against losses and damages to
incomplete and completed work, materials or equipment covering the Public
Improvements to be dedicated to the City until the same have been accepted by the
City.
The coverages identified herein shall remain in force and effect through the expiration of all
warranty periods described in this Agreement.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 Clean-up and Property Maintenance. Developer shall be responsible for cleaning
up any debris resulting from construction of Improvements by Developer, its contractors, and
subcontractors. Developer, through its employees, contractors or agents, agrees to maintain and
keep the Property, landscaping, parking lots and other site improvements in a safe, well -kept
manner. Developer shall exercise reasonable care to prevent trash, garbage, litter, or other refuse
from accumulating on the Property.
12.2 Compliance with Code of Ordinances. This Agreement and all work and
improvements required by this Agreement shall be performed and carried out in strict compliance
with and subject to the provision of the City's Code of Ordinances.
12.3 Restrictions on Use. Developer agrees it shall devote, develop and use the Property
in accordance with the uses specified in the property covenants and this Agreement. This
restriction shall lapse automatically if at any subsequent time, the recorded property covenants
lapse, expire, or are otherwise lawfully terminated. The benefits and burdens of this Agreement
shall be deemed covenants which run with the land and shall be binding on the successors and
assigns of Developer.
191:K%TelkkyiI Me] �.we] MPAI f�b�:�� f� e W
12.4 ConflictingPlans. The Development shall be developed in accordance with the
approved Site Plans and the conditions stated in this Agreement and with the approved Conditional
Use Permit. In the event of a conflict between the site plan on file with the City and the written
terms of this Agreement, the written terms of this Agreement shall control.
12.5 Conflicts of Interest. No member, official, or employee of the City shall have any
personal interest, direct or indirect, in this Agreement, nor shall any such member, official, or
employee participate in any decision relating to this Agreement which affects his/her personal
interest or the interest of any corporation, partnership or association in which he/she is directly or
indirectly interested. Provided, however, that after this Agreement has been signed, a member,
official, or employee of the City may have contact and business relations with Developer relating
to the Project only if a full disclosure is made to the City Council, and the business relation does
not impair the exercise of said member's, official's, or employee's independent judgment on behalf
of the City. No member, official, employee, or consultant of the City shall be personally liable to
Developer, or any successor of interest, in the event of any default or breach by the City for any
amount which may become due to Developer or successor, or on any obligation under the terms
of this Agreement.
12.6 Property Taxes. Developer covenants that, so long as Developer is the Developer
thereof, it shall pay all property taxes duly levied against the Property in accordance with
applicable state law.
12.7 Construction. Any and all damage to completed Improvements, public or private,
caused by construction of the Project shall be repaired by the Developer, as determined by the City
Engineer.
12.8 Engagement of Qualified Contractors. Developer agrees to engage a general
contractor for all work included in this Agreement who is qualified to perform the work, and who
is selected at Developer's sole discretion.
12.9 Temporary Construction Easements. The City shall grant any and all necessary
temporary construction easements upon the property owned and controlled by the City ("City
Property") required by Developer in order for Developer to construct and install the Improvements.
Developer shall, at its sole cost and expense, restore the affected portion of the City's Property to
the same condition which existed prior to the commencement of such work. The City warrants
that it owns and controls all of the City Property described and Developer's obligation to perform
the Improvements shall not require access to any other property owned or otherwise controlled by
a third party.
ARTICLE XIII
GENERAL PROVISIONS
13.2 Notices and Demands. Except as otherwise expressly provided in this Agreement,
any notice, demand, or other communication under this Agreement by either party to the other
shall be sufficiently given or delivered when mailed by registered or certified mail, postage
prepaid, return receipt requested, or delivered personally, to the addresses below, or at such other
1.1:.HTe3k•jI Me] �:we] MPAI f�b�:�� Bifid.
addresses with respect to either such party as that party may, from time to time, designate in
writing.
If to Developer: Croixview Holdings, LLC
Attn: Timothy Siegfried
415 Lakeside Drive South PO Box 53
Bayport, MN 55003
If to City: City of Oak Park Heights
Attn: City Administrator
14168 Oak Park Blvd N
Oak Park Heights, MN 55082
With copy to: Eckberg Lammers, P.C.
Attn: Kevin S. Sandstrom
1809 Northwestern Ave
Stillwater, MN 55082
13.3 Entire Agreement. The entire agreement of the parties has been set forth in this
Agreement and there are no representations, warranties or agreements between the parties except
as set forth in this Agreement. Developer agrees that the City, its agents and employees, shall not
be liable for any representations, warranties or agreements not contained in this Agreement and
that if any such representations, warranties or agreements have been made, they are wholly
unauthorized and not binding upon the City. Developer expressly waives any claims for damages
or for rescission because of any representations, warranties or agreements made by the City, its
agents or employees, other than as contained in this Agreement. All prior agreements, written or
oral, concerning the subject matter of this Agreement are cancelled and superseded.
13.4 Modifications in Writing. Neither this Agreement nor any of the provisions of this
Agreement may be changed, waived, discharged or terminated except by an instrument in writing
signed by the parties.
13.5 Binding Effect and Assignment. This Agreement shall continue to bind and inure
to the benefit of the parties and their respective representatives, heirs, successors and assigns.
13.6 Severability of Provisions. It is intended each provision of this Agreement shall be
viewed as separate and divisible, and in the event that any provision shall be held to be invalid, the
remaining provisions shall continue to be in full force and effect.
13.7 Governing Law. This Agreement and its construction, interpretation, and
enforcement and the rights of the parties shall be determined under, governed by, and construed in
accordance with the internal laws of the State of Minnesota, without regard to principles of conflict
of law. Each of the parties agrees that all actions or proceedings arising in connection with this
Agreement shall be tried and litigated, at the sole option of City, in any court in which the City
191: LV%TelkkyiIMe] �.we] MPAI f�b�:�� El IM
shall initiate legal or equitable proceedings and which has subject matter jurisdiction over the
matter in controversy.
13.8 Additional Representations. Each party acknowledges and agrees it (i) has been
given a full and fair opportunity to discuss and negotiate the terms of this Agreement, (ii)
understands and fully agrees with the provisions of this Agreement, (iii) has carefully read this
Agreement; (iv) a copy of this Agreement was available to them prior to the execution thereof, (v)
has been given adequate time in which to execute the Agreement; (vi) knows and understands the
provisions of this Agreement; and (vii) has signed this Agreement knowingly and voluntarily.
13.9 Further Acts. Each party to this Agreement agrees to perform any further acts and
deliver any documents as may be reasonably necessary to carry out the provisions of this
Agreement.
13.10 Recording. The City shall be entitled to record a copy of this Agreement, or a
memorandum thereof, in the office of land records in and for Washington County, Minnesota and
this Agreement shall attach to and run with the property.
13.11 Headings. The headings in this Agreement are included for convenience and
reference only and should not be construed a part of this Agreement for any other purpose.
13.12 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and facsimile signatures shall be treated as originals; however, in no
event shall the Agreement be deemed fully executed without the signatures of all parties.
13.13 Incorporation of the CUP Terms. This Agreement incorporates the terms and
conditions of the Conditional Use Permit granted to Developer by City Council on November 14,
2022.
[Signature page follows.]
191: LV%TC]LVA IMe] �.we] MPAI f�b�:�� Bifid.
[Signature page follows]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of
the date first above written.
CITY:
CITY OF OAK PARK HEIGHTS
F
f
ii
Mayor
Eric jfohnson, City Administrator
STATE OF MINNESOTA }
} ss.
COUNTY OF WASHINGTON )
The foregoing instrument was acknowledged before me this1 day of December, 2022, by
Mary McComber, Mayor and by Eric Johnson, City Administrator, of the City of Oak Park Heights,
a Minnesota municipal corporation, on behalf of the City and pursuant to the authority of the City
Council.
ota Public
DEV AGMT - OPH - CROiX 92-28-22 22 of 38
DEVELOPER:
CROIXVIEW HOLDINGS LLC
BY:
Name: Timothy Siegfried
Title: President and Chief Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF WASHINGTON )
The foregoing instrument was acknowledged before me this �� day of December, 2022, by
Timothy Siegfried, the President and Chief Manager of Croixview Holdings LLC, a Minnesota
limited liability company, on behalf of said company.
4*11491 Notary Pu
1
1
DRAFTED BY:
Kevin S. Sandstrom
Eckberg Lammers, P.C.
1809 Northwestern Ave
Stillwater, MN 55082
DEV AGMT - OPH - CROIX 12-28-22 23 of 38
EXHIBIT A
Legal Description of the Property
The South 262 feet of the North 494 feet of the East 233 feet of the Northeast'/4 of the Southwest
1/4 of section 3, township 29, range 20, excepting therefrom that part taken for highway
All that part of the Northwest quarter of the Southeast quarter of section 3, township 29 North,
range 20 West and running thence South 1 degree of 30' East along the centerline of said section
3 for a distance of 234 feet so the point of beginning of the land hereby conveyed; from said point
of beginning continuing South on the aforesaid line extended in a straight line to the point where
it intersects the West boundary of the Stillwater and Point Douglas road also known as highway
21; running thence Northeasterly along the West boundary of said Stillwater and Point Douglas
road to a point where it intersects a line parallel to and 232 feet South of the North line of the
Southeast quarter of section 3, township 29 north, range 20; running thence Westerly in a straight
line to the point of beginning, being a triangular piece of and adjacent to Easterly of and having as
its Northern boundary the extended North boundary of that land
EXHIBIT B
STORMWATER MANAGEMENT FACILITY MAINTENANCE AGREEMENT
THIS STORMWATER MANAGEMENT FACILITY MAINTENANCE AGREEMENT
is made and given on the day of December, 2022 by and among the CITY OF OAK
PARK HEIGHTS, a municipal corporation organized under the laws of the State of Minnesota
(the "City"), J. Johnson Development LLC, a Minnesota limited liability company ("Developer"
and together with the City, the "Parties").
WHEREAS, pursuant to Minnesota Statutes and related rules and regulations, the City has
adopted and implements regulations regarding Stormwater Management;
WHEREAS, under City regulations, certain land -disturbing activity requires a land
Developer to record a declaration establishing the land Developer's perpetual obligation to inspect
and maintain stormwater management facilities;
WHEREAS, Developer is the fee Developer of that certain property located in the City
Oak Park Heights, legally described on attached Exhibit A (the "Property"); and
WHEREAS, Developer desires to construct improvements on the Property requiring
stormwater management within the City and has submitted Plans for construction of stormwater
facilities to the City in accordance with the terms of the development agreement entered into
between the City and Developer dated December 28th, 2022 ("Development Agreement"); and
WHEREAS, in connection with the Development Agreement the City has required, as a
condition of approval, the execution and recording of this Stormwater Management Facility
Maintenance Agreement (the "Agreement"); and
WHEREAS, to secure the benefits and advantages of the City's approval, Developer
desires to subject the Property to the terms of this Agreement.
NOWTHEREFORE, Developer declares that the Property is, and shall be, held, transferred, sold,
conveyed, and occupied subject to the terms of this Agreement.
1. The Developer, its successors and assigns shall install and maintain those certain
storm water facilities as identified and delineated on the site plan incorporated in this Agreement
as Exhibit 1 (the "Facilities").
2. The Developer, at its cost, will inspect and maintain the Facilities in accordance
with the stormwater management facility maintenance requirements, attached and incorporated as
Exhibit 2, under all permits issued by the City applicable to this Agreement including but not
limited to filtration and drainage swales, and regarding the Facilities identified in the permit(s)
that are to be owned by the Developer on its Property.
3. By January 31 of each year, Developer will provide to the City Administrator a
concise written report stating the dates of inspections and maintenance, facilities inspected,
inspection results and maintenance or other work performed on the Facilities during the preceding
calendar year.
4. Developer shall cause a declaration to be recorded on the Property incorporating
the stormwater management facility maintenance requirements of this Agreement; and such
recordation occur either before any encumbrance is recorded on the Property or, if after, only as
accompanied by a consent executed by the encumbrance holder ensuring that the declaration will
continue to bind the property in the event of a sale or transfer by forfeiture.
5. Enforcement. This Agreement is enforceable by the City acting through its City
Council. The City may enter the Property for the purposes of inspection of the Storm Water
Management Facilities and for the enforcement of the obligations of Developer under this
Agreement. If Developer fails to perform its obligations under this Agreement, the City must
provide written notice of default to Developer before taking any corrective action. If the failure
continues for 30 days after the City's written notice, the City may take whatever actions it deems
reasonably necessary in order to fulfill the obligations of Developer under this Agreement. If it is
determined by the City that it is necessary to enter the Property to maintain or repair Storm Water
Management Facilities or roadways to protect public utility facilities or the public health, safety
or welfare without first giving such notice to the Developer, it may do so, giving the Developer
such notice as is reasonably possible under the circumstances. Developer must reimburse the City
for the reasonable out-of-pocket, legal and administrative costs incurred by the City for its
corrective action within 30 days after receipt by Developer of a written demand from the City
accompanied by reasonable documentation of the expenses. If Developer fails to reimburse the
City within such 30 day period, the City may recover its costs by assessing the amounts against
the Property, to be collected with property taxes. Developer waives any and all rights to receive
notice and a hearing or to contest these assessments under Minn. Stat. ch. 429 or other applicable
law. Further, City may enforce the terms of this Agreement by any proceeding in law or in equity
to restrain violation, to compel compliance, to recover costs for corrective action, or to recover
damages, including actual attorneys' fees and costs of the enforcement actions.
6. Grant of Rights.
a. Grant of Rights. For valuable consideration, Developer conveys to the City
a right of inspection, maintenance, and repair of Storm Water Management Facilities over,
under, and across the Property and assess the costs of maintenance and repair to the
Developer on the terms and conditions hereinafter set forth.
b. Scope of Rights. This Agreement hereby conveyed includes the right of the
City, its contractors, employees, agents, and assigns to:
191: LV%TelkkyiIMe] �.we] MPAI f�b�:�� 1211RIM]
i. Reasonable right of ingress and egress to inspect Storm Water Management
Facilities;
ii. Reasonable right of ingress and egress to perform the Developer's
obligations upon default by Developer in accordance with this Agreement;
iii. Locate, construct, reconstruct, operate, maintain, inspect, alter, and repair
the Storm Water Management Facilities in accordance the requirements of
this Agreement; and
iv. Assess the costs of inspection, construction, reconstruction, operation,
maintenance, alteration, and repairs against the Developer.
V. Cut, trim, or remove trees, shrubs, or other vegetation that, in the City's
judgment, unreasonably interfere with the Storm Water Management
Facilities.
7. Miscellaneous.
a. No Waiver. Failure to enforce any provision of this Agreement upon a
violation of it will not be deemed a waiver of the right to do so as to that or any subsequent
violation.
b. Validity. Any provision of this Agreement deemed invalid by a court of
law shall be severable from the remainder of the Agreement. Invalidation of any of the
terms of this Agreement will in no way affect any of the other terms, which will remain in
full force and effect.
C. Duration of Covenants and Easements. The agreements, obligations,
covenants, and easements granted herein are permanent and shall remain in effect in
perpetuity.
d. Warranty of Grantor. The Developer warrants that it is the Developer of a
fee simple interest in the Property, that it has the right to grant this Agreement, and that the
Property is free and clear of any lien, encumbrance, easement, restriction, covenant, or
condition, except for those filed of record with the County Recorder or Registrar of Titles
for Washington County, Minnesota.
e. Recitals Incorporated. The recitals above are hereby incorporated as part of
this Agreement as if fully set forth herein.
f. Easement and Covenants Run with the Land. This Agreement runs with the
land and is binding on the Developer, successors, and assigns, and shall be recorded against
the Property.
g. Amendments. This Agreement may not be amended without the written
approval of the City.
191: LV%TelkkyiIMe] �.we] MPAI f�b�:�� A of W
[Signature page follows]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of
the date first above written.
CITY:
CITY OF OAK PARK HEIGHTS
Mary McComber, Mayor
Eric Johnson, City Administrator
STATE OF MINNESOTA )
) ss.
COUNTY OF WASHINGTON )
The foregoing instrument was acknowledged before me this day of December, 2022, by
Mary McComber, Mayor and by Eric Johnson, City Administrator, of the City of Oak Park Heights,
a Minnesota municipal corporation, on behalf of the City and pursuant to the authority of the City
Council.
Notary Public
DEVELOPER:
CROIXVIEW HOLDINGS LLC
By:
Name: Timothy Siegfried
Title: President and Chief Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF WASHINGTON )
The foregoing instrument was acknowledged before me this day of December, 2022, by
Timothy Siegfried, the President and Chief Manager of Croixview Holdings LLC, a Minnesota
limited liability company, on behalf of said company.
Notary Public
DRAFTED BY:
Kevin S. Sandstrom
Eckberg Lammers, P.C.
1809 Northwestern Ave
Stillwater, MN 55082
191: LV%TelkkyiIMe] �.we] MPAI f�b�:�� ZRIM
EXHIBIT 1
Site Plan & Approved Concept Plans
[to be attached]
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