1g. Agreement terminating Minnegasco's contract with WAFTA CITY OF
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CHANHASSEN
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690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
' (612) 937-1900 • FAX (612) 937-5739
Action by City Adrnfnistrator
Endorsed.
MEMORANDUM
1 Modifier'
Rejected
R
TO: Don Ashworth, City Manager ate—C1d7�.O'—
Dste Submitted to Co.-im sLiori
FROM: Jim Chaffee, Public Safety Director — S
Det: . .. to Cci:^cil
DATE: January 12, 1990 f /zyla
1 SUBJ: Western Area Fire Training Academy/Minnegasco/Proposed
Termination Agreement
Please find attached a letter from Steve Smith, an attorney for
the Smith, Fisher Law Firm and a proposed termination agreement
' between the Western Area Fire Training Academy (WAFTA) and
Minnegasco. Mr . Smith is an attorney representing the WAFTA group
of which we are a member. Mr . Smith has indicated that he can be
in attendance at the Council meeting when this matter is being
considered.
The termination agreement is basically written to cover any of
' the legalities associated with a termination of the contract
(attached) that was signed in 1979 .
rRECOMMENDATION: I have looked over the termination agreement and
the original contracts and I can find no _reason not to enter .into
the termination agreement—with Minnegasco.
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SMITH • FISHER
ATTORNEYS AT LAW
Joel Fisher Market Plaza
' Barbara L Jones McGuire
Douglas 732 West 66th Street
F. Richfield, Minnesota 55423
Joel C. Monke (612) 861-4556
Steven C.Smith
I
December 28, 1989
City Clerk 4 .City of Chanhassen
11 690 Coulter Drive
Chanhassen, MN 55317
' RE: Western Area Fire Training Academy/Minnegasco/
Proposed Termination Agreement of Use Agreement
' Dear Clerk:
Enclosed is a letter addressed to your Mayor and City Council as
well as attached documents.
On behalf of our client, Western Area Fire Training Academy, and
your member city, we ask that you place the enclosed proposed
Termination Agreement, (and other documents for reference) before
your City Council for review, consideration and approval at your
earliest meeting in January 1990.
' If you have any questions, you can reach me at my office at
861-4556.
Since ely,
II =teve Smith
SS:kr
cc: WAFTA/Michael Savage
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►.�..:_I t ..v
t JAN 21990
CI rY OF CHANHASSEN
1
SMITH . FISHER .
ATTORNEYS AT LAW
Joel Fisher Market Plaza
Barbara L Jones 732 West 66th Street
Douglas F. McGuire
Joel C Monke Richfield, Minnesota 55423
Steven C.Smith (6I2) 861-4556
December 28, 1989
Mayor Don Chmiel and Council Members
City of Chanhassen
690 Coulter Drive
Chanhassen, MN 55317
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RE: Western Area Fire Training Academy Lease/Minnegasco ,
Dear Mayor Chmiel:
Attached hereto you will find copies of the following:
1 . Joint and Cooperative Agreement/Western Area Fire
Training Association and Member Cities (for
reference) .
• 2 . Use Agreement dated August 14 , 1974 between Western I
Area Fire Training Academy and Minnesota Gas
Company/Minnegasco.
3 . Proposed Termination Agreement. '
This office has been retained by Western Area Fire Training Academy
regarding Minnegasco's violation of their Use Agreement. Pursant to I
the Use Agreement, Minnegasco has used the WAFTA training site until
sometime in early,. 1988 at which time Minnegasco abandoned its
present use thereof. I
In verbal communication with its attorney, and in, written
correspondence, Minnegasco has indicated to us that they had no
plans to use the site in 1989, and no plans thereafter. Further
that they would be amenable to a negotiated termination of their
lease if WAFTA is so interested. The Board of Directors of WAFTA
has approved the enclosed proposed Termination Agreement, and has I
instructed us to begin negotiating a termination of their lease
following your council 's approval of the agreement. WAFTA also has
environmental concerns as contained in , the proposed Termination I
Agreement.
WAFTA asks your earliest review and approval of the proposed
Termination Agreement. Also we invite you to consult your city
attorney for any thoughts he/she may have.
We would like your approval as early as possible in January 199Q, so II
that we can forward the proposed Termination Agreement to Minnegasco
and conclude their use or uses as recited in the Use Agreement.
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' December 28, 1989
Page Two
We would appreciate, when you act, that you would have your clerk
' call me at my office so that we can circulate by courier the
original copy of the proposed Termination Agreement for affixing
signatures of all the Mayors of the various cities. Also if you
'
want me to be present at your council meeting when this ~matter is
discussed, you can reach me at my office at 861-4555 • to arrantle
same.
' Again, the actual proposed Termination Agreement herein has not yet
been presented to Minnegasco and will not be until all cities
approve the Termination Agreement and allow us to proceed with
' terminating the Use Agreement according to WAFTA's instructions .
Sincerely,
SMIT FISHER T RNEY AT LAW
r•
teven C. Smit
SCS:kr
cc : WAFTA/Michael Savage
' Enclosures
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TERMINATION AGREEMENT
THIS AGREEMENT made this day of , 1989,
between WESTERN AREA FIRE TRAINING ACADEMY, a Minnesota non-profit
corporation, hereinafter referred to as "THE ACADEMY" and MINNESOTA 1
GAS COMPANY, a Delaware corporation, licensed to do business in the, I
State of Minnesota, hereinafter referred to as "THE COMPANY" .
RECITALS '
1. "THE ACADEMY" and "THE COMPANY" have entered into a
Use Agreement dated January 1, 1979, by which the "THE ACADEMY" and 1
"THE COMPANY" agreed to certain terms and conditions for the use by 11
"THE ACADEMY" and "THE COMPANY" of property described and known as
the Launch Area, Nike Battery #70, in the County of Carver, St. II
Bonifacius, Minnesota, hereinafter referred to as "THE SITE" by
which "THE ACADEMY" and "THE COMPANY" agreed to the terms and II
conditions as stated in the Use Agreement. "THE SITE" shall include
not only the said property but also any buildings, storage
facilities, equipment, and any physical improvements thereon.
2 . The parties desire to terminate and cancel the Use
Agreement, and to release each other from their respective
1
obligations under said Use Agreement exttpe as hereinafter stated.
3 . In consideration of the mutual covenants contained
herein, the parties agree as follows: I
The Use Agreement shall be and is hereby terminated
and cancelled and the term thereof is brought to an
end as of the date of the signing hereof, subject to
the terms and conditions set forth below.
"THE ACADEMY" and "THE COMPANY" are released and II
discharged from their respective obligations to
observe the terms and conditions of the Use Agreement
on their respective parts to be observed, unless 11
hereinafter otherwise stated.
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II "THE COMPANY" vacated "THE SITE" sometime in 1988 and
hereby abandons and vacates "THE SITE" effective the
date herewith.
' "THE COMPANY" hereby vacates its easement to use such
areas within "THE SITE" as "THE ACADEMY" and "THE
COMPANY" have mutually agreed upon hereinbefore either
for any remodelling or alteration or for use in
related training programs.
' "THE ACADEMY" herein terminates its right to receive
any yearly rental, or training fees due "THE ACADEMY"
from "THE COMPANY" pursuant to said Use Agreement.
"THE COMPANY" hereby vacates its easement or use of
any of the existing buildings or property above or
below ground on "THE SITE" .
"THE ACADEMY" hereby terminates all expectancy to
receive any costs or expenses due it or claimed due
from "THE COMPANY" for the filling, grading, fencing,
building remodelling, providing of any fuels and
materials and storage materials and any equipment
previously supplied and the use of any and all
buildings and areas on "THE SITE" .
"THE COMPANY" terminates its use of "THE "SITE" either
in its own stead or by any of its designated agents or
any other organizations as may have contracted with
"THE COMPANY" for use of "THE SITE" .
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"THE ACADEMY" and "THE COMPANY" hereby agree that any
costs whatsoever associated with environmental
liabilities incurred on "THE SITE" as a result of use
by "THE ACADEMY" and/or "THE COMPANY" shall remain the
sole liability of "THE ACADEMY" and "THE COMPANY" .
Further, it shall be an overriding provision herein
' that any said liabilities directly attributable to
"THE COMPANY" shall be the sole obligation of "THE
COMPANY" . Said environmental liabilities include, but
shall not be limited to, the following: any costs
associated with regulatory compliance review; soil and
ground water assessment; structual inspection;
industrial hygiene assessment; identification of
PCB's, asbestos, other hazardous materials; testing
and investigation of underground storage tanks;
testing and cleanup of soil; assessment of hazardous
material/waste handling and storage areas; also any
other costs incurred to investigate potential problems
and correct same, which may include but not be limited
' to collecting insulation material for analysis;
collecting surface soil samples from visually
contaminated areas; drilling soil borings for
analysis; installing ground water monitoring wells and
collecting ground water samples; collecting other
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types of samples such as wipe samples from floor or It
wall surfaces, samples from drums or transformers or
storage tanks, and samples of sludge or other waste
materials; and leaking, testing underground storage
tanks . Said liabilities shall also include, but not
be limited to: compliance with any and all federal,
state and local regulations with regard to
environmental assessment, analysis, testing, and clean
up liability for any environmental problem or natural
resources damages caused by use of "THE SITE" . ,
"THE COMPANY" hereby represents and warrants that it has
caused no natural resource damage by its use of "THE SITE" . II
Further, that any and all required federal, state or local permits
concerning or relating to environmental protection and regulation at
"THE SITE" during the Use Agreement have been secured and are II
current. Further, "THE COMPANY" warrants that it has been in full
compliance with any and all environmental permits, and any other II
requirements under federal, state or local law, regulation or
ordinance. Further, "THE COMPANY" warrants there are no pending II
actions against it under environmental law, regulation or ,
ordinance, and "THE COMPANY" has not received notice in any form of
such an action, or every possible action, relating to its use of II
"THE SITE" . Further, "THE COMPANY" warrants there are no past or
current releases of hazardous substances on, over, at, from, into or I
onto any facility at "THE SITE" . Further, "THE COMPANY" warrants
that it is not aware of any environmental condition, situation or
incident on, at or concerning "THE SITE" that possibly could give II
• rise to an action or to liabilty under any law, rule, ordinance or
common law theory.
"THE COMPANY" warrants that if a representation or warranty
is breached, "THE COMPANY" is responsible for all resulting
liability, and will indemnify and hold harmless "THE ACADEMY" II
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therefrom. Further, any and all liability for any environmental
conditions other than those directly caused by "THE ACADEMY" shall
1 remain with "THE COMPANY" .
If at any time subsequent to the signing of this
1 Termination Agreement it is determined that there has been waste
!, contamination and that any costs are incurred therefrom, "TFiE
ACADEMY" has the right of recission of this Termination Agreement by
' written notice to "THE COMPANY" .
' For purposes of this agreement, all written notices shall
be directed to the addresses written below; i.e. ,
1 "THE ACADEMY" Western Area Fire Training Academy
( c/o City Hall
City of Excelsior
339 Third Street
Excelsior, MN 55331
' "THE COMPANY" Minnesota Gas Company
c/o Safety Director
733 Marquette Avenue
Minneapolis, MN 55402
IN WITNESS WHEREOF, the parties hereto have executed this
agreement at
the day and year first above written.
1 MINNESOTA GAS COMPANY
Dated:
1 By:
Its:
1 CITY OF CHANHASSEN
Dated:
Mayor
' Clerk
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CITY OF CHASKA I
Dated:
Mayor
Clerk 1
CITY OF EDEN PRAIRIE 1
Dated:
Mayor 1
Clerk i
CITY OF EXCELSIOR
Dated: I
Mayor
Clerk ,
CITY OF LONG LAKE
Dated:
Mayor
Clerk 1
CITY OF MOUND I
Dated: _ Y
Mayor I
Clerk i
CITY OF MAYER
Dated:
Mayor
Clerk ,
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CITY OF ST. BONIFACIUS
Dated:
Mayor
Clerk
CITY OF VICTORIA .
Dated:
Mayor
Clerk
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CITY Cy OF MAPLE PLAIN
' Dated:
Mayor
Clerk
CITY OF WATERTOWN
Dated:
Mayor
Clerk
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It is expressly understood and agreed between "The Academy" and
"The Company" herein that the following terms and conditions shall apply 1/
at all times during the term of this Agreement and any extensions thereof,
unless changed by mutual agreement, prepared in writing, and signed by
"The Academy" and "The Company": •
1. "The Company" shall pay annually to "The Academy" a
II
minimum Use Fee of One Thousand Two Hundred Dollars
($1,200) on or prior to the 1st day of January, 1979,
II
sub ject however, to the biennual use,fee adjustment
setforth herein.
2. In each odd numbered year thereafter "The Company" shall
4
increase the minimum Use Fee by five percent (5%) and
the use fee as so adjusted shall be paid to "The Academy" II
on or prior to the 1st day of January.
3. "The Academy" agrees that "The Company" may continue its
II
use of"The Site" subject to mutually agreeable terms and
conditions of this Agreement for an additional period of II
twenty (20) years if prior to the 1st day of January, 1999,
s
it notifies "The Academy" in writing of its intention to
do so.
4. "The Company" agrees that in addition to the payment of
II
the minimum Use Fee in any given year, it shall pay to
"The Academy" a training fee of $5.00 for each person II trained by "The Company" on "The Site"; this amount shall
be paid at the end of every quarter in each year during
the term of this Agreement and any extension thereof, and
may be increased or debreased by mutual agreement if in
writing and signed by "The Academy" and "The Company". II
. S. "The Academy" agrees that "The Company" at its own expense
} ,may perform such remodeling of the existing "Buildings"
on "The Site" as it deems necessary or convenient unless
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"The Academy" formally objects in writing to same.
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6. "The Company" agrees that it will, without cost or expense
to "The Academy", do all necessary filling, grading, fencing,
' building remodeling, and provide all fuels and materials
and storage facilities and other equipment as it may deem
' necessary or convenient to the construction and development
of a "Fire Demonstration Area" on "The Site" for use in its
1 activities.
7. "The Company" agrees that it will, without cost or expense
' to "The Academy", provide for the maintenance of those
areas of "The Site" being used for "The Company's"
4
' activities, programs and facilities and will provide for
all instructors and personnel.
' 8. "The Academy" agrees that "The Site" shall be available for
use by "The Company" as may be necessary during all twelve
(12) months of the year provided, however, that "The
Company" shall pay for all snow removal, t ng and
electrical expenseof "The Academy" directly resulting from
' the use of "The Site" by "The Company" between . ovember 1�
and April 30 in any given year.
' 9. "The Company" agrees that "The Academy" shall have first
priority but the non-exclusive use of all facilities at
or upon "The Site" with the exception of such "Fire
.Demonstration Area" as "The Company" may design and
construct, provided, however, that upon thirty (30) days
written notice to *The Academy" the "concrete vault and/or
' smoke chamber" shall be available to "The Company". Upon
thirty (30) days written notice to "The Company", the
"Fire Demonstration Area" shall be made available for use
by "The Academy" for up to ten (10) days in any given year.
40 "The Academy" agrees to obtain and,continue all necessary
' permits for the operation of "The Site" as a fire fighting
training facility, to provide for such security as may
' • be necessary to protect "The Site", maintain all
properties and areas at "The Site" other than those
constructed by "The Company"; "The Academy"• shall provide
for all necessary utility expenses at "The Site" from
' May 1 through October 31 in any given year without cost
tQ "Whe Company".
4
11. Upon written agreement with "The Academy", "The Academy" -
agrees that other organizations may "contract with 'The
Company" for the use of "The Site" provided it is used
for purposes consistent with the rights granted to "The
Company" by this Agreement.
12. The Company" agrees to provide adequate insurance coverage
for its employees, personnel, and trainees, and fire
and liability insurance covering its property and I
activities on "The Site".
13. "The Company" and "The Academy" agree that at the ,
termination of this Agreement and/or any extensions
thereof "The Academy" may purchase such property and/or
physical improvements as "The Company" may have made
at "The Site", for the undepreciated book balue of same
as may be demonstrated by "The Company" from its records,
but shall not be obligated to do so. If "The Academy"
does not purchase said property and/or physical
AT rrs lc0 o�r�
improvements, "The Company"lmay remove any or all of
same provided such removal Jdoes not result in permanent '
damage to "The Site" which shall be left in as good a
condition as reasonably possible following removal. '
1
For purposes of this Agreement, all written notices shall be
directed to the addresses below; i.e., I
• "The Company": Minnesota Gas Company
c/o Safety pirector A
733 Marquette Avenue •
Minneapolis, MN 55402
•
"The Academy": The Western Area Fire Training Academy
c/o City Hall
City of Excelsior
339 Third Street
Excelsior, MN 55331 •
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1 IN WITNESS WHEREOF, the parties hereto have executed this
111 Use Agreement this )-O day of {ay , 1979.
IWITNESS: MINNESOTA GAS C MPANY
By ( 1► •r'��-Gl-.��.
V1 IY1 Its ' ` r�a.�Li.; fsv(/LS�
CITY OF EXCELSIOR
For:
♦ THE WESTERN AREA FIRE TRAINING
ACA• /
By
` ayor
City •4. xcelsior, MN
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.w.
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. .:J ,dri:ct.,r oi..a i. f ....o Council, of each
member or a term
1, :vVii.i'Ci however that of the two
...'.::.✓ers ono .;::all be a fize -i'Jater. If a director ceases to be
a fire fighter, or if the appointment of any director is
rescinded by the Council of a municipality, a vacancy shall
exist and shall be filled by the Council as in the case of
original appointments: in all other cases, Directors shall serve
until their successors are appointed and qualify.
•
Section 2. Meetings, Quorum, By-Laws. The Board Shall
hold an organizational meeting within 30 days after the Association:
is created, subject to the provisions of Section 3 of this
Article. At its organizational meeting the Board shall elect
from its members a Chairman, Vice-Chairman and secretary-Treasurer
and it shall adopt by-laws governing meetings, quorums, duties of
officers and such other matters as it deems necessary and as
may be required by the agreement.
Section 3. Interim Meeting of Board; Time being of the
essence, when four members have joined the association as
provided in Article V, Section 4, an interim organizational
meeting shall be held. Temporary officers shall be selected and
temporary rules adopted sufficient to enable the members to
negotiate the purchase of the fire training site from the General
Services Administration, but for no other purpose.
Section 4. Powers and Duties of the Board. Subdivision 1.
The Board shall exercise general supervision and control over the
operation of the fire training center. It shall adopt rules and
regulations for the proper administration of the center including
but not limited to its scheduling, maintenance, preservation, use
and management.
Subdivision 2. Funds: Employees. ;he Board may apply for or
accept grants, gifts or loans from any source whatsoever and'
utilize the same for the purposes of the center. It may employ
personnel to operate the center and an executive director to
manage the operation of the center.
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The Board Jhall have and ;assess
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ea .vo"c-r. :or the ;roper and efZiciont
a;c11.-nc...on
CO:-1:1iTTET,
Section 1. ?ppointmcnt. At its organization al meeting the
11 3oazd shall select from among the directors an executive committee
consisting of seven persons for terms corresponding to their
regular term of office as director.
Section 2. Duties. The executive committee shall have the
• responsibilities assigned to it by the by-laws of the Board and
may perform any function assigned to it by such by-laws between
regular meetings of the Board. The executive committee shall
monitor the operation of the training center and make such
recommendations to the Board as are necessary for the proper
operation of the training center.
VIII. FINANCIAL MATTERS
Section 1. Purchases and Contracts. All purchases, con-
tracts and expenditures of funds made by the Association hall
be made in accordance with the laws governing such matters for
statutory cities in Minnesota. Strict accounting for all funds
of the Association shall be provided for.
Section 2. Capital and Operating Costs. All Capital and
interest costs of acquisition and improvement of the training
center shall be sharecrequally by the members, according to
procedures adopted by the Board. Operating costs of the training
center shall be defrayed by.equitable use fees as determined by
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the' Board.
Section 3. Acquisition f Site. The City of Excelsior shall
be the contracting party for the members to purchase the site
from the General Services Administration. The purchase shall be
•
by contract for deed pursuant to the provisions of Minnesota
Statutes, Section 412.221 Subd. 2, and in such terms as may be
acceptable to the General Services Administration and.the City of
2xcelzior, provided however, that the City is under no obligation
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.J i:. __ �..�J .: t:J n .�;.� zeCeiVed, p io: to
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2, .f7•., .. . ,1.u.w ..'0::. each of the .
;.e:aa..ra of
...:c A.isoci.tcio n or. t....,. �:.:tc. ,
.. :.a -c.-.aers joining the Association '
a. tc Tel) unr1 12, 1974 thali make an initial contribution of
$500.00 toward capital and interest •costs provided by Section 2
of this Article. If all can (10) members listed in Article V,
Section 2 join the Association, the initial contribution of $500.00
.:ac}: will provide sufficient monies to make the initial down .
payment and provide monies to cover expenses in forming the
Association and purchasing the site. Each member agrees to pro-
vide each year sufficient monies to pay its prorata share of
the purchase price due on the Contract for Deed. It all ten (1G) I
members do not join the Association, those members who do join,
agree to pay to the City of Excelsior their prorate share of the
contract costs as they become due under the terms of the Contract
for Deed.
Section 4. Ownership of the Site. The record title to the
size shall be in the name of the City of Excelsior. The City of
Excelsior egress to hold title to the site property in trust for
all members who contribute money for the site purchase. Each
members interest in the site shall be in accordance with its
prorata share paid to acquire the site. Nothing in this section
shall prohibit the creation of record ownership by joint tenancy
or in such other manner as is deemed to be equitable by the
members. If there is not unanimous consent by all members as to
how the title shall be recorded, it shall remain with the City of
Excelsior in trust for each member who contribute to its
purchase
and who continues to contribute its equal share under the terms
of Article VIII, Section 2. Withdrawal from the Association in
accordance with Article IX, Section 3 shall act as a forfeiture
of any rights to any interest in the site or to any of the trust
provisions of this Section.
Section 5. Budget. The Board shall prepare and submit
an annual budget to the members prior to June 1 of each year.
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Date: 0442.11.6
1974 City of St. Bonifacius
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By. ,..e.e,..P. .-._c.itiv--L,---•
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1974 City of Victoria
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USE AGREEMENT
THIS AGREEMENT, entered into this 1st day of January, 1979,
by and between Western Area Fire Training Academy, a Minnesota Non-Profit
Corporation, created on the / 4/ day of /41107 ,e." j , 1979,
hereinafter referred to as "The Academy" and Minnesota Gas Company, a
Delaware Corporation, licensed to do business in the State of Minnesota,
hereinafter referred to as "The Company",
WHEREAS:
The City of Excelsior, MN, acting as and for "The Academy" as
4 purchaser, in that certain Contract for Deed and Rental Agreement from
the United States of America (Vendor) dated August 14, 1974, and
designated Contract No. GS-05B-96001 (PK) for the purchase of the
real property described therein known as the Launch Area, Nike Battery
#70, in the County of Carver, St. Bonifacius, MN, hereinafter referred
to as "The Site" and,
WHEREAS:
"The Academy" by reason of the above Contract for Deed and
Rental Agreement is the beneficial owner of "The Site" and operates and
maintains thereon a volunteer fire fighting training facility and I
"The Academy" agrees that "The Company" may share in the use of "The
Site" and its facilities for training and related purposes and activities, I
NOW, THEREFORE,
"The Academy", in consideration of the terms and conditions
contained herein does, for itself, its successors and assigns, grant and
convey unto "The.Company" the express right, license, and easement for
the period of twenty (20) years from the 1st day of January, 1979, to
the lst day of January, 1999, to use such areas within "The Site" as
"The Academy" and "The Company" may mutually agree upon in writing for
the construction or remodeling at "The Company's" expense of facilities
and equipment for fire fighting and related training programs a6 "The •.
Company" may from time to time desire.
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