92-06 HRA Resolutions
Resolution 92-6
July 14, 1992
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Commissioner Johnson introduced the following resolution and moved its
adoption:
RESOLUTION FOR FINDINGS AND DETERMINATIONS APPROVING SALE OF
CERTAIN REAL PROPERTY IN THE NORTH WIRTH REDEVELOPMENT AREA
WHEREAS, the Housing and Redevelopment Authority in and for the City of
Golden Valley, Minnesota (hereinafter referred to as the IIHRAII), and the City
Council of the City of Golden Valley, Minnesota, have approved the North Wirth
Redevelopment Plan; and
WHEREAS, the North Wirth Redevelopment Plan contemplates the redevelopment
of the East Area in office and light industrial type uses; and
WHEREAS, Dahlberg, Inc., a Minnesota Corporation (hereinafter referred to
as IIDeveloperll) has made a proposal for the construction of a 28,800 square
foot office/warehouse facility; and
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WHEREAS, the HRA has reviewed the terms of the proposal made by the
Developer and they appear to be reasonable and within the overall guidelines
for redevelopment of the North Wirth Redevelopment Area; and
WHEREAS, the HRA has determined the use value of the real property con-
templated by the Developer1s proposal; and
WHEREAS, the HRA has duly given notice (Exhibit IIAII) of a public hearing
on the proposed sale of the property set forth in Exhibit IIBII (hereinafter the
IISubject Propertyll), pursuant to Mi nnesota Statutes ~469 .029 and has duly hel d
said public hearing;
NOW, THEREFORE, BE IT RESOLVED, that the HRA does hereby make the follow-
ing findings and determinations:
(1) Proper published notice of the proposed sale of the Subject
Property described above has been given and a pUblic hearing has
been held thereon, all in accordance with the provisions of
Minnesota Statutes ~469.029;
(2) The use of the Subject Property proposed by the Developer is
reasonably within the overall guidelines of the North Wirth
Redevelopment Plan;
(3) The use value of the Subject Property is hereby established as
$2.20 per square foot for area south of the railroad tracks and
$46,500 for all of the property north of the railroad tracks;
(4) In consideration of the restrictions on the sale and use of the
Subject Property imposed by Minnesota Statute ~469.029 and the
restrictions improved by the North Wirth Redevelopment Plan, sale
of the Subject Property to the Developer at the above noted value
is appropri ate.
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Resolution 92-6 (Continued)
July 14, 1992
BE IT FURTHER RESOLVED that:
(1) The sale of the Subject Property to the Developer on the terms
and conditions set forth in the attached development agreement
attached hereto as Exhibit "B" is hereby approved; and
(2) The Chair and the Director of the HRA are hereby authorized to
execute the necessary documents and close the sale of the Subject
Property to the Developer pursuant to the terms and restrictions
provided hereby; and
(3) The Director of the HRA is hereby authorized and empowered to
take all necessary steps to acquire the Subject Property and to
perform the obligations imposed on the HRA under the private
development agreement; and
(4) The North Wirth Redevelopment Plan is hereby amended to the
extent that the Developer1s proposal embodied in the private
development agreement attached hereto as Exhibit IIB" so modifies
it.
ATTEST:
or the adoption of the foregoing resolution was seconded by
Commissi er Russell and upon a vote being taken thereon, the following voted
in favor thereof: Bakken, Johnson, Russell, Stockman and Thompson; and the
following voted against the same: none, whereupon said resolution was declared
duly passed and adopted, signed by the Chair and his signature attested by the
Di rector.
Resolution 92-6 - Continued
Exhi bit "A"
July 14, 1992
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NOTICE OF PUBLIC HEARING
(APPROVAl. OF SALE OF CERTAIN REAL PROPERTY TO
DAIILBERG, INC. FOR REDEVELOPMENT)
NOTICE IS IIEREBY GIVEN, that the Housing and Redevelopment
Authority of Golden Valley, Minnesota will meet in the Golden Valley
City lIall, 7800 Golden Valley Road, on Tuesday, July 14,1992, at 4:30
PM, and will then and there consider the sale and terms of sale of the
following described tract located northeast of the intersection of
Trunk Highway 55 and Wirth Parkway in Golden Valley, Minnesota, to
Dahlberg, Inc., for redevelopment pursuant to Minnesota Statutes
Section 469.029:
A portion of Outlot B and all of Outlot 0, North
Wirth Parkway 3rd Addition, Ilennepin County, Minnesota,
and all or part of lots 75, 76, 77, 78, 79, 107, 108, .
109, 110 and 11 t, Gl enwood Additi on, Hennepi n County,
Minnesota and any adjoining vacated streets and alleys.
The proposal is to construct a 28,800 sq. ft. office/warehouse facility
and additional parking for and expansion of the headquarters of .
Dahlberg, Inc. All interested persons may appear in person or by coun-
sel, and be heard. If you have any questions, please feel free to con-
tact Mark Grimes, Director of Planning and Development at 593-8097.
. BY HIE HOUSING AUD REDEVELOPMENT AUTHORITY OF GOLDEN VALLEY, MINNESOTA.
William S. Joynes
Di rector
A 11 en D. Barnard
Attorney for the liRA
3500 IOS. Center
Minneapolis, MN 55402
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Resolution 92-6 -Continued
July 14~ 1992
Exhibit IIBII
SECOND DAHLBERG. INC. PRIVATE DEVELOPMENT AGREEMENT
THIS AGREEMENT, effective as of July _, 1992, is made and
entered into by and between THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY, a public body
corporate established and existing under Minnesota Statutes,
Section 469.001 et ~., with its principal offices at 7800
Golden Valley Road, Golden Valley, Minnesota 55427 (the "HRA"),
and DAHLBERG, INC., a Minnesota corporation with its principal
offices at 4101 Dahlberg Drive, Minneapolis, Minnesota 55422
("Dahlberg") . .
WHEREAS, the HRA and the City of Golden Valley (the "City")
adopted the North Wirth Parkway Redevelopment Plan (the "Plan")
on September 18, 1978, with amendments on April 9, 1979,
March 5, 1982 and February 16, 1988 (the "Plan), for the purpose
of redeveloping approximately 110 acres located in the City of
Golden Valley (the "Redevelopment Area"); and
WHEREAS, the Plan is intended to encourage private
development of the Redevelopment Area through various forms of
government aid and financial assistance; and
WHEREAS, Dahlberg has submitted to the HRA a proposal (the
"Dahlberg Project") for the development of a 28,800 square foot
office/warehouse facility on a parcel of the Redevelopment Area
as shown in attached Exhibit A (the "Development property"); and
WHEREAS, the HRA, after public hearing, has approved the
Dahlberg Project as being consistent with the provisions of the
Plan; and
WHEREAS, the Development Property is included within a tax
increment district; and
WHEREAS, Minnesota Statutes, Section 469.029, requires the
adoption of a development agreement between the parties setting
forth the mutual rights and Obligations of the parties in
accordance with the provisions of the Plan;
NOW, THEREFORE, in consideration of the foregoing, and in
consideration of the mutual terms and conditions contained
herein, the parties hereby agree as follows:
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Resolution 92-6 - Continued
July 14~ 1992
TABLE OF CONTENTS
Article I - Definitions
1.1.
Definitions
Article II - Representations and Warranties
2.1. Representations and Warranties by the HRA
2.2. Representations and Warranties by Dahlberg
Article III - Title and Other Matters
3.1.
3.2.
3.3.
3.4.
3.5.
3.6.
3.7.
3.8.
3.9.
Marketable Title
Survey, Rep1atting and Soil Analysis
Real Estate Taxes and Special Assessments
Deed
Recording
Use
Condemnation
Environmental Matters
Removal of Soil and Other Materials
Article IV - Construction of Improvements
4.1.
4.2.
4.3.
4.4.
4.5.
4.6.
Construction of Improvements
Development Plans
Commencement>and Completion of Construction
Certificate of Completion
Reimbursement of HRA Expenses
Escrow.Agreement
Article V - Assessment Aqreement and PaYment of Taxes
5.1.
5.2.
Execution of Assessment Agreement
PaYment of Taxes, Assessments, Etc.
Article VI - Insurance
6.1.
Insurance
Article VII -Undertakinqs of the HRA: Tax In~rement Bonds
7.1.
7.2.
7.3.
Sale of Development Property
Limitations on Financial Undertakings
of the HRA
HRA to Maintain Existence
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Resolution 92-6 - Continued
Article VIII - Mortaaae Financina
8.1.
8.2.
8.3.
8.4.
8.5.
Approval of Mortgage
Notice of Default; Copy to Mortgagee
Mortgagee's Option to Cure Defaults
HRA's option to Cure Default on Mortgage
Subordinate Liens
Article IX - Re~trictions on Transfer: Indemnifi~ation
9.1.
9.2.
Restrictions on Transfer
Indemnification
Article X - Events of Default
10.1.
10.2.
10.3.
10.4.
Events of Default Defined
Remedies on Default
No Remedy Exclusive
No Additional Waiver Implied by One Waiver
Article XI - Additional ProvisiQns
11.1.
11.2.
11. 3.
11.4.
11.5.
11. 6 .
11. 7 .
11. 8 .
11. 9.
11. 10 .
11.11.
11.12.
Equal EmploYment opportunity
Not for Speculation
Titles of Articles and Sections
Notices and Demands
Counterparts
Modification
Interpretation and Amendment
Severability
Duration
Binding Effect
Consents
Certificates
Article XII - Termination of Aareement
12.1.
12.2.
Exhibits:
A
B
C
D
E
F
Dahlberg's Options to Terminate
Effect of Termination
Sketch of Development Property
Assessment Agreement
B-1 Legal Description and Permitted Encumbrances
B-2 Assessor's Certification
B-3 Minnesota Statutes, Section 469.177, Subd. 8
Certificate of Completion
Preliminary Plans
Limited Warranty Deed
Escrow Agreement
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July 14, 1992
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Resolution 92-6 - Continued
July 14, 1992
ARTICLE I
Definitions
Section 1.1. Definitions. In this Agreement, unless a
different meaning clearly appears from the context:
"Aoreement" means this Private Development Agreement by and
between The Housing and Redevelopment Authority in and for the
City of Golden Valley, Minnesota and Dahlberg, Inc., a Minnesota
corporation, as the same may be from time to time modified,
amended or supplemented.
"Articles and Sections" mentioned by number only are the
respective Articles and Sections of this Agreement so numbered.
"Assessor's Minimum Market Value" means the agreed minimum
market value for calculation of real estate taxes certified by
the Assessor for Hennepin County for the Improved Parcel
pursuant to the Assessment Agreement.
"Assessment Ao:{'eement" means the assessment agreement to be
executed by the HRA and Dahlberg, and certified by the Assessor
for Hennepin County, pursuant to the provisions and requirements
of Minnesota Statutes, Section 469.177, Subdivision 8,
establishing the Assessor's Minimum Market Value for the
Improved Parcel, a copy of which is attached hereto as Exhibit B.
"Certific~te of CQmoletion" means. the certification, in the
form of the certificate contained in Exhibit C attached to and
made a part of this Agreement, provided to Dahlberg or its
successors or assigns pursuant to Section 4.4 of this Agreement
upon satisfactory completion of the Improvements.
"Citv" means the City of Golden Valley, Minnesota.
"Closino Date" means the date upon which the HRA conveys
the Development Property to Dahlberg, which shall be on or after
the date the Parties have obtained all consents and approvals
required for construction of the Improvements, and which the
Parties expect to be on or about September 15, 1992.
"Countv" means the County of Hennepin, Minnesota.
"Dahlbero" means Dahlberg, Inc., a Minnesota corporation,
and its successors and assigns under this Agreement.
"Dahlbero proiect" means the construction and operation of
the Improvements by Dahlberg on the Development Property
pursuant to the terms of this Agreement.
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Resolution 92-6 - Continued
July 14, 1992
"DeveloomentPlans" means the plans, specifications,
drawings, and related documents on all construction work to be
performed by Dahlberg on the Development Property, including all
on-site improvements to be performed, installed or constructed
upon the Development Property pursuant to this Agreement. Such
plans shall include, at a minimum, for each building or other
structure to be constructed on the Development Property, at
least the following: (i) site plan; (ii) floor plan for each
floor; (iii) elevations (all sides) and exterior materials; and
(iv) landscape and drainage plan; and shall also include
adequate plans,. drawings and specifications relating to all
driveways, walks, parking, and other improvements to be
constructed upon the Development Property by Dahlberg. Such
plans shall comply with all applicable city requirements.
"Develooment Prooertv" means the real property shown in the
sketch attached as Exhibit A of this Agreement. As soon as
practicable, the HRA shall provide Dahlberg with a legal
description for the Development Property which shall also
include the Perm~tted Encumbrances, as hereinafter defined.
"Event of Default" means an action by Dahlberg listed in
Section 10.1 of this Agreement.
"First Mortaaae" means any first priority mortgage which is
secured, in whole or in part, by Dahlberg's interest in the
Development Property, or any portion or parcel thereof, or any
Improvements constructed thereon, and which is a permitted
encumbrance pursuant to the provisions of Article VIII of this
Agreement.
"HRA" means The Housing and Redevelopment Authority in and
for the City of Golden Valley.
"Holder" means the owner of the First Mortgage.
"Imoroved Parcel" means the Development Property and the
completed Improvements.
"Imorovements" means, at a minimum, a 28,800 gross square
foot office/warehouse facility, plus all other improvements,
including fixtures and equipment, to be constructed by Dahlberg
upon the Development Property pursuant to this Agreement, as
such improvements are defined in the Development Plans.
"Maturitv Date" means the date when the principal of,
premium, if any, and interest on the Tax Increment Bonds are
paid in full, by retirement, redemption or otherwise, but not
later than December 31, 2001. Maturity Date shall not be
extended by refunding without the prior agreement of the parties.
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Resolution 92-6 - Continued
July 14, 1992
"Net Proceeds" means any proceeds paid by an insurer to
Dahlberg, the Holder of the First Mortgage, or the HRA under a
pOlicy or policies of insurance to be provided and maintained by
Dahlberg pursuant to Article VI of this Agreement and remaining
after deducting all expenses (inCluding reasonable fees and
disbursements of counsel) incurred in the collection of such
proceeds.
"partv" means either the HRA or Dahlberg.
"Parties" means the HRA and Dahlberg.
"Permitted Encumbrances" means the encumbrances to which
the HRA's sale of the Development Property to Dahlberg will
remain subject.
"ElAn" means the North Wirth Parkway Redevelopment Plan,
adopted by the City and the HRA on September 18, 1978 and
amended on April 9, 1979, March 5, 1982, and February 16, 1988,
and as amended further through the date he.reof.
"preliminarv Plans" means the preliminary site and
development plan submitted by Dahlberg as part of its proposal
and approved by the HRA as being consistent with the Plan, and
attached as Exhibit D.
"Purchas~ Price" means the sum of $2.20 per square foot for
that portion of the Development Property lying southerly of the
Soo Line railroad tracks currently running through the
Development Property, plus $46,500 for the remainder of the
Development Property, reduced by the amount of any park
dedication or impact fees assessed or assessable against the
Development Property by the City.
"Redevelopment Area" means the approximately 110 acres
located in Golden Valley, Minnesota that are subject to the Plan.
"State" means the state of Minnesota.
"Tax Increment Bonds" means the general obligation, tax
increment bonds in the principal amount of $3,675,000 which the
City issued in May, 1990, to finance acquisition of property in
the Tax Increment District. The term "Tax Increment Bonds"
shall also include any obligations issued to refund the Tax
Increment Bonds.
"Tax Increment District" means the North Wirth Parkway Tax
Increment District No.1.
"Tax Increment Financina Act" means the statutes located at
Minnesota Statutes, Sections 469.174 through 469.179, inclusive,
as amended.
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Resolution 92-6 - Continued
July 14, 1992
"Tax Increment Financina Plan" means the Tax Increment
Financing Plan for City of Golden Valley.
"Tax Official" means any City or County Assessor; County
Auditor; County or state Board of Equalization; the Commissioner
of Revenue of the State; or any State or Federal District Court,
the Tax Court of the State or the State Supreme Court.
"Unavoidable DE;!lavs" means actual delays due to events
directly affecting the Development Property which are beyond the
control of the Parties, including but not limited to labor
disputes, unusually severe or prolonged bad weather, acts of
God, fire or other casualty, injunctions, or other court or
administrative orders.
ARTICLE II
Representations and Warranties
Section 2.1. Representations and Warranties bv the HRA.
The HRA represents and warrants that:
(a) The HRA has the power to enter into this
Agreement and carry out its obligations hereunder.
(b) The Redevelopment Area constitutes a
Redevelopment Project pursuant to Minnesota Statutes,
Section 46!L 002.
(c) The Tax Increment District ccJ'nstitutes a Tax
Increment District pursuant to Minnesota Statutes, Section
469.042, and is an "existing project" pursuant to Minnesota
Statutes, Section 469.179.
(d) The HRAhas examined this Agreement, and has
determined that its terms and provisions are in accordance
with the objectives embodied in the Plan, and are in the
best interests of the City and its residents.
(e) The Dahlberg Project, as defined and described in
this Agreement, is in conformance with the Plan.
The above representations and warranties are true and complete
as of the date hereof, shall be true and complete as of the
Closing Date, and shall survive the Closing Date.
Section 2.2. Representations and Warranties bv D.ahlbera.
Dahlberg represents and warrants that:
(a) Dahlberg is a corporation duly organized and in
good standing under the laws of the State.
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Resolution 92-6 - Continued
July 14, 1992
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(b) Dahlberg is not in violation of any prOV1S1ons in
its Articles of Incorporation or Bylaws, has power to enter
into this Agreement and to perform its obligations
hereunder and has duly authorized the execution, delivery
and performance of this Agreement by proper action, such
that this Agreement is and shall remain binding and
enforceable against Dahlberg according to its terms,
subject to laws affecting the rights of creditors generally
or principles of equity.
(c) Dahlberg shall construct, operate and maintain
the Improv~ments upon the Development Property in
accordance with the terms of this Agreement, the Plan and
all local, state and federal laws and regulations.
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(d) Neither the execution and delivery of this
Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Agreement is
prevented or limited by, or in conflict with or will result
in a breach of, the terms, conditions or provisions of
Dahlberg's Articles of Incorporation or Bylaws, as amended,
or any indenture, mortgage, agreement or instrument of
whatever nature to which Dahlberg is now a party or by
which it is bound, or will constitute a default under any
of the foregoing.
(e) There are no legal proceedings pending, or known
to be threatened or co~templated, to which Dahlberg is a
party, or to which any property of Dahlberg is subject,
which, if determined adversely, would individually or in
the aggregate have a material adverse effect on Dahlberg's
financial position, or prevent or impair Dahlberg's ability
to perform any covenants or obligations under this
Agreement.
(f) Dahlberg herewith delivers to the HRA copies of
its most recent audited financial statements, prepared in
accordance with generally accepted accounting principles,
and, since the date of such statements, there have been no
changes in Dahlberg's financial condition which would have
a material adverse effect on Dahlberg, or which would
prevent or impair its ability to perform any covenants or
obligations under this Agreement.
(g) Dahlberg will act in good faith and use its best
efforts to obtain all consents and approvals required for
construction of the Improvements, including the Planned
Unit Development approval.
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The above representations and warranties are true and complete
as of the date hereof, shall be true and complete as of the
Closing Date, and shall survive the Closing Date.
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Resolution 92-6 - Continued
July 14, 1992
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ARTICLE III
Title and Other Matters
Section 3.1. Marketable Title. The HRA agrees to furnish
to Dahlberg, within thirty (30) days after Dahlberg's execution
of this Agreement, a commitment for the issuance of an owner's
ALTA policy of title insurance with respect to the Development
Property issued by an acceptable title insurance company showing
marketable title in present owners subject only to the following:
(a) Building, zoning and similar laws anp ordinances.
(b) Mineral rights reserved to the State of Minnesota.
(c) Easements of record which Dahlberg determines, in
its reasonable discretion, will not interfere with
Dahlberg's proposed development and use of the property.
(d) The lien of current real estate taxes, if any.
(e) Other restrictions, if any, expressly agreed to
by Dahlberg, including those restrictions and reversionary
rights contained in this Agreement.
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(f) Rights of present fee owners, if any, which the
HRA shall terminate prior to closing.
The commitment shall include searches for bankruptcies;
state and federal judgments; tax and other liens; and for all
special assessments, levied, pending (approved by the City
Council), or deferred. The commitment shall include full
mechanic's lien coverage, shall delete any exceptions for the
rights of parties in possession and survey matters, and shall
include copies of all documents referred to therein. The cost
and expense of the title commitment and the title policy, based
upon the Purchase Price only, shall be paid by the HRA. Any
other title costs or policies shall be paid by Dahlberg.
Dahlberg shall be allowed fifteen (15) days after receipt
of such commitment to make objections thereto, such objections
to be made in writing or deemed waived. The HRA shall be
permitted sixty (60) days from and after the date of such
objections to cure the same and the HRA hereby undertakes to
cure such defects. If such title objections cannot be cured
within sixty (60) days, or such longer period as is agreed to by
Dahlberg, and Dahlberg does not waive such objections, then
Dahlberg shall have the right to terminate this Agreement by
giving written notice thereof to the HRA.
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The HRA shall furnish Dahlberg with a current update of the
commitment not more than 20 days and not less than three days
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Resolution 92-6 - Continued
July 14, 1992
4It prior to the Closing Date. Dahlberg shall be allowed seven (7)
days after receipt of such update to make objections thereto,
such objections to be made in writing or deemed waived. The HRA
shall be permitted thirty (30) days from and after the date of
such objections to cure the same and the HRA hereby undertakes
to cure such defects. If such title objections cannot be cured
within thirty (30) days, or such longer period as is agreed to
by Dahlberg, and Dahlberg does not waive such objections, then
Dahlberg shall have the right to terminate this Agreement by
giving written notice to the HRA.
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The times provided for in this Agreement for the Closing
Date and for commencement and completion of construction shall
be extended to the extent required as a result of the time
incurred by the HRA to cure any title objections.
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Section 3.2. Survey. Reolattina and Soil Analv~is. The
HRA shall, within a reasonable time after the execution of this
Agreement, obtain from a registered land surveyor a boundary
line survey showing the Development Property to the nearest
hundredth of a square foot, and also showing all easements of
record or in use, all roads and encroachments, and any gaps or
overlaps. The HRAshall also plat or replat the property where
determined necessary by the City for the purpose of simplifying
future descriptions and to obviate the need for future
references to the Plan. Dahlberg shall complete any additional
surveying or platting required by the City in order for Dahlberg
to obtain P.U.D. approval from the City for construction of the
Improvements. The completion of such surveying and platting by
the Parties shall be a condition of Closing. Dahlberg agrees to
reimburse the HRA at the closing for one-half of the HRA's
reasonable out-of-pocket costs for such surveying and platting.
As soon as practicable after the execution of this
Agreement, Dahlberg, at its expense, shall perform a reasonably
complete structural and environmental soil analysis of the
Development Property. In the event Dahlberg reasonably
determines, based upon the results of the soil analysis, that
construction of the Improvements is not practicable without
material additional cost due to existing soil or groundwater
conditions, or due to the presence of hazardous or toxic waste
on the Development Property, Dahlberg shall have the option of
terminating this Agreement pursuant to Section l2.1(d), provided
that any such termination must occur by 4:30 p.m. on July 13,
1992 with respect to any of the conditions described in the
first paragraph of Section 3.8, or by August 15, 1992, with
respect to any other condition.
Section 3.3. Real Estate Taxes and Soecial Assessments.
The HRA represents that no property taxes are due and payable on
the Development Property in the year of Closing. The HRA shall
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Resolution 92-6 - Continued
July 14, 1992
pay in full all special assessments against the Development
Property which are levied or pending (approved by the City
Council) as of the Closing Date. Subject to Section 7.1(b),
Dahlberg shall pay all real estate taxes, and installments of
special assessments payable therewith, which became payable
after the Closing Date.
Section 3.4. ~. Upon tender of the Purchase Price by
Dahlberg on the Closing Date, the HRA shall deliver to Dahlberg
a limited warranty deed describing the Development Property in
the form attached as Exhibit E (the "Deed"). The Deed shall be
subject to the Permitted Encumbrances, all building and zoning
laws and ordinances and all other local, state, and federal laws
and regulations, the terms and conditions of this Agreement, and
such other encumbrances as the HRA and Dahlberg shall mutually
agree. The Deed shall contain a forfeiture clause providing for
revesting of title in the HRA, subject to the rights of the
Holder of a First Mortgage, upon the occurrence of an Event of
Default (as defined in Section 10.1 hereof) and expiration of
any period to cure such Event of Default provided in
Section 10.2 hereof prior to issuance of the Certificate of
Completion. The Purchase Price shall be due and payable in full
at closing in cash, or by cashier's or certified check.
Delivery of the Deed shall not cause termination of any
provisions of this Agreement or the Assessment Agreement, except
where expressly provided in such agreements. Except as provided
in Section 3.1, all costs of the conveyance of the Development
Property to Dahlberg, including any and all fees and charges
relating to such conveyance, and filing or recording fees and
any and all other taxes and charges payable in connection with
such conveyance, if any, shall be wholly borne by Dahlberg,
except for the State deed tax which shall be paid by the HRA on
the Closing Date, and except that the HRA shall pay its own
attorneys' fees. The HRA shall voluntarily take no actions to
encumber title, or fail to take any necessary action to prevent
encumbrance of title, except with respect to Permitted
Encumbrances to the Development Property, between the date
hereof and date of delivery of the Deed to Dahlberg by the HRA
pursuant to this Section.
Section 3.5. Recordina. Dahlberg shall cause the title
insurance company to promptly file the Agreement, the Deed, and
the Assessment Agreement in the office of the Hennepin County
Recorder. Dahlberg shall pay all costs of recording, except for
the State deed tax which shall be paid by the HRA on the Closing
Date.
Section 3.6. Use. Dahlberg shall devote the Development
Property only to the uses specified in this Agreement or in the
Plan, and there shall be no unlawful discrimination in the use
of the Development Property on account of race, color, religion,
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Resolution 92-6 - Continued July 14, 1992
sex, age, national origin, or political affiliation. If the
Plan is subsequently amended in a material respect, such
amendment shall not bind Dahlberg or the Development Property
without Dahlberg's consent, which consent shall not be
unreasonably withheld or delayed. To the extent that there are
any conflicts between this Agreement and the Plan, the
provisions of this Agreement shall govern, and the approval by
the HRA of this Agreement shall constitute an amendment of the
Plan.
Section 3.7. Condemnation. In the event that title to and
possession of the Improvements or any material part thereof
shall be taken in condemnation or by the exercise of the power
of eminent domain by any governmental body or other person
(except the HRA) after the Closing Date but prior to Maturity
Date, Dahlberg shall, with reasonable promptness after such
taking, notify the HRA as to the nature and extent of such
taking. Upon receipt of any condemnation award, Dahlberg shall
use the entire condemnation award first to pay the reasonable
costs and expenses of such taking, including but not limited to
reasonable attorneys' fees and appraisers' fees, and second to
reconstruct the Improvements (or, in the event only a part of
the Improvements have been taken, then to reconstruct such part)
upon the Development Property. To the extent that reconstruction
of the Improvements is impracticable, Dahlberg shall, after
paYment of the reasonable costs and expenses of the taking, pay
to the HRA, for paYment by the HRA of principal and interest on
the Tax Increment Bonds, one-third of such remaining amount, and
Dahlberg shall retain two-thirds of such remaining amount,
subject to the rights of the Holder of a First Mortgage. The
HRA agrees to subordinate its rights under this Section to the
Holder of a First Mortgage, but only to the extent of amounts
owing to the Holder under the First Mortgage.
Section 3.8. Environmental Matters. The parties are aware
of certain environmental issues relating to the Development
Property, as described in the February, 1992, Barr Engineering
report, "Results of Soil and Groundwater Investigations,
Dahlberg Drive Site, Golden Valley, Minnesota", and the
October 23, 1991, Barr Engineering letter report on the pond
area of Dahlberg Drive. The HRA shall use reasonable efforts,
in conjunction with the Minnesota Pollution Control Agency (the
"PCA"), to assess the nature and extent of the environmental
issues discussed in such reports, and to remediate any adverse
environmental conditions on the Development Property which
become known as a result of such assessment, but only to the
extent such remediation is required pursuant to authorized
standards of the PCA. Such activities may extend beyond the
Closing Date for the Development Property, and Dahlberg hereby
grants to the HRA and its agents the right to enter on to the
Development Property after the Closing Date for the purpose of
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Resolution 92-6 - Continued
July 14, 1992
completing such activities. Any remediation after the Closing
Date will not materially interfere with Dahlberg.s use of the
Development Property.
To the extent permitted by law, the HRA hereby agrees to
indemnify and hold harmless Dahlberg, and Dahlberg's
shareholders, directors, officers, employees and agents, and the
heirs, representatives, successors and assigns of such persons,
against any loss, cost, damage, liability or expense (including
reasonable attorneys. fees), which any such person incurs or
suffers as a re~ult of any adverse environmental conditions
described in the previous paragraph and on or directly affecting
the Development PropertYi provided, however, that the total
liability of the HRA to all such persons shall be limited to the
amount of the Purchase Price for the Development Property, in
the aggregate, and provided that any person seeking
indemnification hereunder shall give the HRA prompt written
notice of any proceeding, action or occurrence which may give
rise to liability of the HRA, and such person shall cooperate
fully with the HRA in connection with such proceeding, action or
occurrence. '
Except for the matters described in this Section, the HRA
is aware of no state or federal claim filed or planned to be
filed by any party relating to any violation of any local, state
or federal environmental law, regulation or review procedure
relating to the Development Property, nor is the HRA aware of
any violation of any local, state or federal law, regulation or
review procedure which would give any person a valid claim under
the Minnesota Environmental Rights Act or other state or federal
environmental statute relating to the Development Property.
Section 3.9. R~moval of Soil and Other Ma~erial~.
Following the Closing Date, and subject to supervision by the
City Engineer, Dahlberg may remove to the Development Property
any of the soil and other material forming the berm on the pond
site which is northeast of the Development Property and owned by
the HRA. Prior to the Closing Date, the HRA or the City may
remove any of the granular material now in piles on the
Development Property. The HRA agrees to use its best efforts
with the City so that the City, upon Dahlberg's request, will
deposit on the Development Property any excess soil resulting
from the excavation of Dahlberg Drive.
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Resolution 92-6 - Continued
Ju1y 14, 1992
ARTICLE IV
Construction of Im~rovements
Section 4.1. Construction of Imorovem~nts. Dahlberg
agrees that it will construct the Improvements on the
Development Property in substantial conformance with the
approved Development Plans for the Improvements. Dahlberg
agrees that the scope and scale of the Improvements to be
constructed shall not be significantly less than the scope and
scale of the Improvements as detailed and outlined in the
Development Plans.
Section 4.2. Develooment Plans.
(a) Dahlberg agrees to submit the Development Plans
for the Improvements to the HRA on or before the Closing
Date. The HRA shall promptly approve the Development Plans
if they provide for the construction of the Improvements
pursuant to the Preliminary Plans. The HRA agrees that its
approval shall not be unreasonably withheld, and that it
shall not be delayed beyond the regular meeting of the HRA
next following delivery by Dahlberg to the HRA of the
Development Plans, provided that such delivery is made at
least seven days prior to such meeting.
(b) If Dahlberg desires to make any material change
in the Development Plans after their approval by the HRA,
Dahlberg shall submit the proposed change to the HRA for
its approval, which approval shall not be unreasonably
withheld or delayed. If the Development Plans, as modified
by the proposed change, conform to the requirements of this
Section 4.2 with respect to such previously approved
Development Plans, the HRA shall approve the proposed
change. Such change in the Development Plans shall be
deemed approved by the HRA unless rejected in writing
within seven days by the HRA with a statement of the HRA's
reasons for such rejection.
Section 4.3. Commencement and Comoletion of Construction.
Dahlberg shall commence construction of the Improvements within
a reasonable time after the Closing Date, and diligently
prosecute construction to completion. Provided that the City
and the HRA have granted timely approval of the Development
Plans, and that the Closing Date has occurred by September 15,
1992, Dahlberg shall complete construction of 100 percent of the
Improvements, as a percentage of market value, by January 2,
1994. The times provided herein for commencement and completion
of construction shall also be extended to the extent of any
Unavoidable Delays. All work with respect to the Improvements
to be constructed or provided by Dahlberg on the Development
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Resolution 92-6 - Continued
July 14, 1992
.
Property shalL be substantially in conformity with the
Development Plans as submitted by Dahlberg and approved by the
HRA.
Subsequent to execution of this Agreement, and until
certification of the Improvements pursuant to Section 4.4,
Dahlberg shall make reports to the HRA, in such detail and at .
such times as may reasonably be requested by the HRA, as to the
actual progress of Dahlberg with respect to construction of the
Improvements. Dahlberg also agrees that designated
representatives of the HRA may enter upon the Development
Property during the construction of the Improvements to inspect
such construction.
The Holder of a First Mortgage shall not have any
obligation to construct or complete construction of the
Improvements while in possession of the Development Property
pursuant to foreclosure, or conveyance by Dahlberg to the Holder
of the First Mortgage in lieu of foreclosure, except as provided
in Section 8.3.
Section 4.4. Certificate of Completion.
.
(a) Promptly after completion of the Improvements in
accordance with the provisions of this Agreement, the HRA
will furnish Dahlberg with a Certificate of Completion, in
substantially the form set forth in Exhibit C attached
hereto. Such Certificate of Completion shall be (and it
shall be so provided in the Certificate of Completion
itself) a conclusive determination of. satisfaction and
termination of the agreements and covenants in this
Agreement with respect to the obligations of Dahlberg to
construct the Improvements.
(b) If the HRA shall refuse or fail.to provide a
Certificate of Completion in accordance with the provisions
of this Section, the HRA shall, within ten (10) days after
written request by Dahlberg, provide Dahlberg with a
written statement, indicating in adequate detail in what
respects Dahlberg has failed to complete the Improvements
in accordance with the provisions of this Agreement, or is
otherwise in default under the terms of this Agreement, and
what measures or acts will be necessary, in the opinion of
the HRA, for Dahlberg to take or perform in order to obtain
such Certificate of Completion.
Section 4.5. Reimbursement of HRA Expenses. In the event
the closing of the sale of the Development Property by the HRA
to Dahlberg pursuant to this Agreement does not occur by
December 31, 1992, for any reason other than a default by the
HRA as provided in Section 12.1(a), Dahlberg shall reimburse the
.
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Resolution 92-6 - Continued
July 14, 1992
HRA for the total amount of out-of-pocket expenses relating to
this Agreement or the Development Property paid or accrued by
the HRA between May 1, 1992, and the earlier of (a) the date of
termination of this Agreement or (b) December 31, 1992, subject
to a maximum of $20,000. Dahlberg shall pay the amount due
hereunder in cash immediately upon the HRA's delivery to
Dahlberg of a reasonably detailed list of expenses subject to
reimbursement. The HRA's rights under this Section 4.5 shall
not limit any other remedy to which it is entitled under this
Agreement or at law or equity due to an Event of Default by
Dahlberg, except to the extent that the HRA's damages are
reduced by any amounts received under this Section 4.5.
Section 4.6. Escrow Aareement. Dahlberg herewith delivers
to the HRA an Escrow Agreement substantially in the form
attached as Exhibit F, executed by Dahlberg and Norwest Bank
Minneapolis, N.A., and funded by Dahlberg in the amount of
$250,000. The HRA shall promptly execute the Escrow Agreement
and deliver executed copies to Dahlberg and Norwest Bank. The
HRA's rights with respect to the Escrow Agreement shall not
limit any other remedy to which it is entitled under this
Agreement or at law or equity due to an Event of Default by
Dahlberg, except to the extent that the HRA's damages are
reduced by its recovery under the Escrow Agreement.
ARTICLE V
Assessment Aareement and PaYment of Taxes
Section 5.1. Execution of Assessment Aareement. Dahlberg
agrees, upon the Closing Date, to execute and deliver the
Assessment Agreement to the HRA pursuant to the provisions of
Minnesota Statutes, Section 469.177, Subdivision 8, specifying
the Assessor's Minimum Market Value which shall be assessed upon
the Improved Parcel for calculation of real estate taxes
pursuant to Minnesota Statutes, Section 272.01, or any successor
statute. The Assessment Agreement shall be in the form of
Exhibit B. Specifically, Dahlberg shall agree that the land and
all improvements thereto comprising the Improved Parcel with
respect to which any real estate taxes, or taxes in lieu thereof
which are levied or assessed and payable by Dahlberg, shall be
assessed to be of a market value of no less than $1,008,000 on
January 4, 1994, and January 2 of every year thereafter until
Maturity Date (for taxes payable in 1995 and subsequent years),
increased in 1994 and subsequent years until Maturity Date by
$35.00 for each gross square foot of Improvements in excess of
28,800 square feet, and decreased in 1994 and subsequent years
by the fair market value of any portion of the Improvements
taken in condemnation or by the power of eminent domain for
which reconstruction is impracticable as provided in
Section 3.8, and by Dahlberg's cost for any portion of the
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Resolution 92-6 - Continued
July 14, 1992
unimproved Development Property taken in condemnation or by the
power of eminent domain.
Section 5.2. Payment of Taxes. Assessments. Etc.
(a) Following the Closing Date, except as provided in
Section 7.1(b), Dahlberg shall pay all real property taxes
pursuant to Minnesota Statutes, Section 272.01, or any
successor statute, which become due and payable on or
before Maturity Date with respect to the Development
Property or any part thereof and pursuant to the provisions
of the Assessment Agreement, until Dahlberg's obligations
under this'Agreement have been assumed by any other person
with the written consent of the HRA and pursuant to the
provisions of this Agreement.
(b) Following the Closing Date, except as provided in
Section 7.1(b), Dahlberg agrees to payor cause to be paid,
before any fine, penalty, interest or cost may be added
thereto for the nonpayment thereof, all real estate taxes,
assessments, water, sewer and other charges, which become
due and payable on or before Maturity Date with respect to
the Development Property or any part thereof. Dahlberg
agrees, upon request of the HRA, to furnish to the HRA,
within sixty (GO) days after the date when any charge is
payable pursuant to any provision of this Section, official
receipts of the appropriate taxing or other authority, or
other proof satisfactory to the HRA, evidencing the payment
thereof.
Dahlberg may, at its expense, in its own name and in good
faith, contest any such taxes, assessments and other charges;
provided, however, that the rights of Dahlberg to seek
administrative or judicial review of the application of, or any
determination made pursuant to, any tax statute relating to the
taxation of real property contained on the Development Property,
shall be strictly subject to the restrictions contained in the
Assessment Agreement.
ARTICLE VI
Insurance.
Section 6.1. Insurance.
(a) Dahlberg shall provide and maintain, or cause to
be maintained, at all times during the process of
constructing the Improvements, at its sole cost and
expense, and, from time to time at the request of the HRA,
furnish the HRA with proof of payment of premiums on:
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Resolution 92-6 - Continued
July 14, 1992
.
(i) Builder's risk insurance, written on the
so-called "Builder's Risk Completed Value Basis", in
an amount equal to one hundred percent (100\) of the
insurable value or one hundred percent (100\) of the
full replacement cost of the Improvements at the date
of completion, with a deductible amount of not more
than $25,000, and with coverage available in
nonreporting form on the so-called "all risk" form of
pOlicy;
(ii) Comprehensive general liability insurance
(including operations, contingent liability,
operations of subcontractors, completed operations and
contractual liability insurance) together with an
Owner's and Contractor's Protective Policy with limits
against bodily injury and property damage of not less
than $6,000,000 for each occurrence (to accomplish the
above-required limits, an umbrella excess liability
policy may be used). The interest of the HRA shall be
protected in accordance with a clause in form and
content satisfactory to the HRA; and
.
(iii) Worker's compensation insurance, with
statutory coverage.
The pOlicies of insurance required purs~ant to clauses
(i) and (ii)'abbve shall be in form and substance
satisfactory to the HRA and shall be placed with
financially sound and reputable insurers licensed to
transact business in the State. The pOlicy of insurance
required pursuant to clause (i) above shall contain an
agreement of the insurer to give not less than thirty (30)
days' advance written notice to the HRA and Dahlberg in the
event of cancellation of such policy or change affecting
the coverage thereunder.
(b) Upon completion of construction of the
Improvements and prior to Maturity Date, Dahlberg shall
maintain, or cause to be maintained, at its sole cost and
expense, and from time to time at the request of the HRA
shall furnish proof of the paYment of premiums on insurance
as follows:
(i) Insurance against loss and/or damage to the
Improvements under a policy or policies covering such
risks as are ordinarily insured against by similar
businesses, including (without limiting the generality
of the foregoing) fire, extended coverage, vandalism
and malicious mischief, explosion, water damage,
demolition cost, debris removal, and collapse in an
amount not less than 90 percent of the full
.
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Resolution 92-6 - Continued
July 14, 1992
.
replacement cost of the Improvements, but any such
policy may have a deductible amount of not more than
$25,000. No pOlicy of insurance shall be written so
that the proceeds thereof will produce less than the
minimum coverage required by the preceding sentence,
by reason of co-insurance provisions or otherwise,
without the prior consent thereto in writing by the
HRA. The term "full insurable replacement value"
shall mean. the a.ctual replacement cost of the
Improvements (excluding foundation and excavation
costs and other unin~urable items) and equipment.
(ii) Comprehensive general public liability
insurance, inQludil'lgpe:r:sonal injury liability for
inju:r:ies to persons and/or property, including any
injtl.I'i~SirE!~tllt'~J1<.lfr()11l\the. operation ()fautomobiles
or other. motorized vehicles on or about the
Development Property, in the minimum amount for each
occurrence of $5,000,000.
{iii} Worker's compensation insurance respecting
all employees of Dahlberg in amounts not less than the
minimum required by statute.
.
.,......,
(c}rA.lli\n.sUI:ClJ1Qerequired in this Article VI shall
be taken out andimaintained in responsible insurance
companies selected by Dahlberg which are authorized under
the laws of. the Stat~.. to. assume the risks covered thereby.
At the.fi t'sitt~~E!.<thCl~~ny\.in~u:raJ:lQ~is r~qui:r:t!dtobe .. in
effect hereunde~,Dahlb~rg<will deposit with th~ HRA a
certificate or certificates or binders of the respective
insurers evidencing that such insurance is in force and
effect. Unlessothe<rwlse provided in this Article VI, each
policy shall contain a provision that the ,insurer shall not
cancel or modify it without giving written notice to
Dahlberg and the HRA at least thirty (30) days before the
cancellation or modification becomes effective. Upon the
HRA's request, Dahlberg shall furnish the HRA evidence
satisfactory to the HRA that any policy required hereunder
is in effect. In lieu of separate policies, Dahlberg may
maintain a single POlicy, or blanket or umbrella policies,
or a combination thereof, which provide the total coverage
required herein, in which event Dahlberg shall deposit with
the HRA a certificate or certificates of the respective
insurers as to the amount of coverage in force upon the
Improvements.
(d) In the event the Improvements or any portion
thereof is destroyed by fire or other casualty, then
Dahlberg shall within sixty (60) days after such damage or
destruction, commence to repair, reconstruct and restore
.
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Resolution 92-6 - Continued
July 14, 1992
.
the damaged Improvements to substantially the same or
improved condition or utility value as they existed prior
to the event causing such damage or destruction and, to the
extent necessary to accomplish such repair, reconstruction
and restoration, Dahlberg shall, subject to the rights of
the Holder of a First Mortgage, apply the Net Proceeds of
any insurance relating to such damage or destruction to the
paYment or reimbursement of the costs thereof. Dahlberg
shall complete the repair and reconstruction of the
Improvements, whether or not the Net Proceeds of insurance
received by Dahlberg for such purposes are sufficient to
pay for the same. Any Net Proceeds remaining after
completion of construction shall be disbursed to Dahlberg,
subject to the rights of the Holder of the First Mortgage.
The HRA agrees to subordinate its rights under this
paragraph to the Holder of a Fir.st Mortgage, but only to
the extent of amounts owing to the Holder under the First
Mortgage.
ARTICLE VII
Undertakinas of the HRA: Tax rncrementBonds
.
Section 7. L. Sale o.e DeveloDlJlent PrODertv. As
consideration for the purchase of the Development Property and
construction of the Improvements by Dahlberg, the HRA agrees to
complete, subj ect to the provisions of Section 7..2 below, the
following actions:
.
(a) Sale of the Development Property to Dahlberg pursuant
to the Deed on the Closing Date.
(b) Use its best efforts with the City, County and State
for the installation of any and all utilities
necessary for construction of the Improvements so that
the same are available to the site, including trunk
storm sewer, sanitary sewers, water mains, hydrant and
valves, sidewalks and street lighting, plus street
construction in accordance with the Preliminary Plans,
including driveway approaches, curb cuts, turn lanes,
resurfacing and signage and signalization, plus,
subject to Unavoidable Delays, relocation of the
18-inch water main currently under Outlot B so that it
is within the utility easement running along the
northwest (southeast line of railroad) and west
boundaries of the Development Property by
September 15, 1992. Such installation shall be done
in a timely manner and pursuant to construction plans
reviewed by Dahlberg. The cost of such installation
shall be paid by the HRA and shall not be assessed
against the Development Property.
(c) Use its best efforts with the City so that the
Improvements may constitute a permitted use under the
zoning ordinance of the City.
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Resolution 92-6 - Continued
July 14, 1992
(d) Use its best efforts to provide for the development
and redevelopment of the Redevelopment Area, including
the portion in close proximity to the Development
Property, in accordance with the Plan.
Section 7.2. Limitations on Financial Undertaki~as of the
HRA. The provisions of Section 7.1 of this Agreement
notwithstanding, theHRA shall have no obligation to Dahlberg
under this Agreement to take any action provided for in this
Agreement except upon existence of the following conditions:
(a) Dahlberg has satisfied all conditions precedent
under this Agreement;
(b) No Event of Default has occurred and is then
continuing beyond the cure .perioq provided in Section 10.2;
(c) The HRA and Dahlberg have received all necessary
approvals from the City, the County Assessor and other
authorities to implement this Agreement;
(d) . . The HRAis not the subject of any court or
administrative proceeding seeking to enjoin.. or otherwise
prevent theHRAfromtakinganY~c:t::iion under this Agreement.
Section 7.3. .. HRA to Maintain Existeu.ce.The HRA covenants
and agrees that it shall at all times do or cause to be done all
things within. its statutory powers necessary to preserve and
keep infullforce.<andeffectitse.Jd:st~nce, ortqs:ssu.re the
assumption of its obligations under this Agreement. .and the
Development Agreement by any public body succeeding to its
powers.
ARTICLE VIII
Mortaaae Financina
Section 8.1. Approval of Mortaaae. Any First Mortgage
shall require the prior written approval of the HRA's Director.
Dahlberg may rely upon any approval granted hereunder by the
HRA's Director without additional action by the HRA. Approval
shall not be unreasonably withheld or delayed, and shall be
given if:
(a) the HRA's Director first receives a copy of all
mortgage documents; and
(b) the HRA's Director determines that the terms of
the First Mortgage conform and are subject to the terms of
this Agreement, except to the extent the HRA agrees to
subordinate its interest to the terms of the First Mortgage.
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Resolution 92-6 - Continued
July 14~ 1992
The Holder of the First Mortgage (or any nominee or agent
controlled by the Holder) shall not be obligated to undertake or
continue construction or completion of the Improvements while in
possession of the Development Property pursuant to the
foreclosure, or conveyance by Dahlberg to the Holder in lieu of
foreclosure, except upon express assumption of such obligation
as provided in Section 8.3, provided that nothing in this
Section or in any other section of this Agreement shall be
deemed or construed to permit any Holder to devote the
Development Property or any portion thereof to any use, or to
construct any improvement, other than those uses or improvements
permitted by this Agreement. Further, any party who obtains any
interest in all' or any portion of the Development Property from
or through any Holder, except for any nominee or agent
controlled by the Holder, whether through foreclosure sale or
otherwise, shall be strictly subject to the terms and conditions
of this AgrE;!ement, as such are binding on Dahlberg, and such
party shall not be entitled to any additional rights or
privileges granted a Holder hereunder.
Section 8.2. Notice of Default; Cony to Mortaaaee.
Whenever the HRA shall deliver any notice or demand to Dahlberg
with respect to any . breach or default byOahlbel;'gin i.ts
obligations o.r covenants under this Agl;'eement, theHRA shall at
the same timeforwardiacopy of such noticeord~and to each
known Holder of any First> Mortgage at the last adc!ress of such
Holder shown in the records of the HRA.
Section 8.3.. ... M9rt;.aaaee's Ontion to Cure Defaults. After
any breach .ot'Qf!f~y.f~refE!rred t.o.inS~ction8~2i):)..erE!of, each
such Holder shaH.. (insofar as the rights of theHRA are
concerned and subject to any rights of the Mortgagor under such
Mortgage) have the. right, at its option, for a period of 90 days
after notice of such default pursuant to Section 8.2 hereof, to
cure or remedy such breach or default and to add the cost
thereof to the Mortgage debt and the lien of its Mortgage. If a
default is not susceptible of cure within such 90-day period,
the Holder shall have such period of time as is necessary to
cure such default provided the Holder promptly commences the
cure and thereafter proceeds to cure such default as. soon as
reasonably possible and provided such failure to cure within 90
days does not jeopardize the purposes of the Agreement or the
Plan. However, if the breach or default is with respect to
construction of the Improvements, nothing contained in this
Section or any other Section of this Agreement shall be deemed
to permit or authorize such Holder, either before or after
foreclosure or action in lieu thereof, to undertake or continue
the construction or completion of the Improvements (beyond the
extent necessary to conserve or protect Improvements or
construction already made) for more than 90 days after the
Holder has received notice of such default pursuant to
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Resolution 92-6 - Continued
July 14, 1992
section 8.2 hereof, without first having expressly assumed the
obligation to the HRA, by written agreement reasonably
satisfactory to the HRA, to complete, in the manner provided in
this Agreement and in conformance with the Development Plans,
the Improvements on the Development Property. If the Holder
enters into an agreement assuming the obligations of Dahlberg
under the Agreement, such agreement shall provide that all
obligations of the Holder thereunder shall terminate at such
time as the Agreement is assigned by the Holder in accordance
with the provisions of Section 9.1 of the Agreement or in
accordance with the following paragraph. Any Holder who shall
properly complete the Improvements relating to the Development
Property shall be entitled, upon written request made to the
HRA, to a certification by the HRA to such effect in the manner
provided in Section 4.4 of this Agreement.
In addition to the assig:n1'nents permitted pursuant to
Section 9.1 of the Agreement, if the Holder of a First Mortgage
acquires the interest of Dahlberg under the terms of. the
Agreement, the Holder shall be permitted to assign its interest
in the Agreement with the consent of HRA, which consent shall
not be unreasonably withheld or delayed. In exercising its
judgment as to whether or not to grant .such consent, the HRA
shall take into<apcQunt qnlythf7financialcon4itio:n. and
experience of. the proposed assignee and its capacity. to perform
the Obligations remaining to be performed under <the Agreement at
the time. of such assignment; provided that, after the
Certificate of Completion has been issued, .theexperience of the
proposed assigneeshall>nol()ngerbe a>factorc()nsideredbY the
HRA as to whether or not grant such consent. Any such assignee
shall agree in writing with the HRA, for itself and its
successors and assigns, to be> bound by the terms.andcondi tions
of the Agreement, the Deed, the Assessment Agreement and the
Plan, and not to transfer, mortgage or otherwi~e convey any
portion of the Development Property except as permitted in the
Agreement.
Section 8.4. HRA's Ootion to Cure Default on Mortaaae.
Any Mortgage executed by Dahlberg with respect to the
Development Property, or any improvements thereon, shall provide
that, in the event that Dahlberg is in default under any
Mortgage authorized pursuant to this Article VIII, the
mortgagee, within ten (10) days after it has declared or given
notice to Dahlberg of a default, shall notify theHRA in writing
of:
(a) the fact of the default;
(b) the elements of the default; and
(c) the actions required to cure the default.
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Resolution 92-6 - Continued
July 14, 1992
The HRA shall have the right to cure any such default
within 35 days after notice from a Holder, provided that the HRA
gives Dahlberg advance written notice of its intent to cure. In
the event of such cure prior to the issuance of the Certificate
of Completion, the HRA shall thereupon be entitled, in addition
to and without limitation upon any other rights or remedies to
which it may be entitled, to reimbursement from Dahlberg or any
successor or assignee of any costs and expenses incurred by the
HRA in curing such default. Interest shall accrue on any
amounts due the HRA under this paragraph at the reference rate
of interest then in effect at First National Bank of Minneapolis
until such amounts are paid, and such amounts shall result in
the creation of a lien on the Development Property in favor of
the HRA, subordinate to the lien of any First Mortgage.
Section 8.5. $pbordinate Liens. Dahlberg agrees that it
will not create, incur, assume or suffer any security interest,
mortgage, pledge, lien, charge, or encumbrance upon the
Development Property except for a First Mortgage permitted under
this Article and except for the Permitted Encumbrances.
Dahlberg may, at its own expense, in its own name and in good
faith, contest any involuntary lien, charge or encumbrance and
not be in default hereunder provided Dahlberg first posts a bond
or provides other security to the HRA or to the Holder, or to an
agent of the. Holder, including, without lirnit.ation,.a title
insurance company, which the HRA reasonably determines is
adequate to protect the interest of the HRA.
ARTICLE IX
Restrictions on Transfer: InQemn~fication
Section 9.1. R~~trictions on Transfer. Until the
Certificate of Completion. has been issued by the HRA, this
Agreement and Dahlberg's interest in the Development Property
may not be assigned by Dahlberg without the prior written
consent of the HRA, which consent may be granted or withheld by
the HRA in its sole discretion.
After the Certificate of Completion has been issued by the
HRA, but prior to Maturity Date, this Agreement and Dahlberg's
interest in the Development Property may be sold, transferred or
conveyed by Dahlberg, provided that the purchaser, as of the
date of such transfer, is reasonably determined by the HRA to be
of sufficient financial condition to perform fully under this
Agreement and the Assessment Agreement, and the purchaser agrees
in writing with the HRA, for himself, his heirs, representatives,
successors and assigns, to be bound by the terms and conditions
of this Agreement, the Deed, the Assessment Agreement, and the
Plan, and not to transfer, mortgage or otherwise assign any
portion of the Development Property except as permitted herein.
-24-
Resolution 92-6 - Continued
July 14, 1992
.
In such event, Dahlberg shall be released from any obligation or
liability hereunder to the extent of the interest purchased.
After the Certificate of Completion has been issued by the HRA,
but prior to Maturity Date, this Agreement and Dahlberg's
interest in the Development Property may be sold, transferred or
conveyed by Dahlberg free of the foregoing conditions, but, in
such event, Dahlberg shall remain primarily liable for
performance of the terms and conditions of this Agreement and
the Assessment Agreement.
The Parties agree that the terms and conditions hereof run
with the land and shall be binding upon their successors and
assigns. The Parties also agree that nothing contained in this
Section 9.1 shall be deemed to prevent the leasing of the
Improvements.
.
Section 9.2. Indemnification. Dahlberg hereby agrees to
indemnify, defend and hold harmless the HRA, and its officials,
employees and agents, against any and all claims, demands,
lawsuits, jUdgmeI)ts, damages, penalties, costs and expenses,
including reasonable attorneys' fees, arising out of actions or
omissions by Dahlberg, its employees and agents, prior to
Maturity Date inc?nnectionwith the Dahlberg Project. To the
extent permitted<bylaw,theHRA agreE!sto indemnify, defend and
hold harmless-Dahlberg, and its employees and agents, against
any and all claims, demands, lawsuits, jUdgments, damages,
penalties, costs and expenses, including reasonable attorneys'
fees, arising out .of actions or omissions by the HRA, its
officials., employees and agents, prior to Maturity Date in
connection with the Dahlberg Project.
ARTICLE X
Events of Default
Section 10.1. Events of Default Defined. The following
shall be "Events of Default" under this Agreement and the term
"Event of Default" shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(a) Failure by Dahlberg to pay the Purchase Price and
otherwise perform on the Closing Date.
(b) After the Closing Date and until Maturity Date,
except as provided by Section 7.1(b), failure by Dahlberg
to timely pay all real property taxes, assessments or other
charges assessed with respect to the Development Property.
(c) Subject to Unavoidable Delays, and extensions
agreed to by the Parties, failure by Dahlberg to commence
and complete construction of the Improvements pursuant to
.
-25-
.
Resolution 92-6 - Continued July 14, 1992
the terms, conditions -and limitations of Article IV of this
Agreement.
(d) Until Maturity Date, failure by Dahlberg to
observe or perform any material covenant, condition,
obligation or agreement on its part to be observed or
performed under this Agreement.
(e) Until the Certificate of Completion has been
issued, filing by Dahlberg in any court, pursuant to any
federal or State statute, of a petition in bankruptcy or
insolvency, or for reorganization, or for tbe appointment
of a receiver or trustee of all or a portion of Dahlberg"s
property,or an assignment by Dahlberg for the benefit of
creditors.
.
(f) Until the Certificate of Completion has been
issued, filing against Dahlberg in any court, pursuant to
any federal or State statute, of a petition in bankruptcy
or insolvency, or for reorganization, or for appointment of
a receiver or trustee of all or a portion of Dahlberg's
properties, if such proceeding is not dismi.ssed within
ninety (90) days after conunencementthereof.
(g) Untilithe?CertificateofComp.letionhas been
issued, cornmencementby the Bolder of anyp-irst Mortgage of
foreclosure in the event of a default in any- of the terms
or conditions of the First Mortgage.
(h) . Ulltil /th~iCeI:titi(:ateof.ComP/l~ti()llhas been
issued,anymerger,>consolidation,liquidation,
reorganization or transfer of all or substanti.ally all of
Dahlberg's assets, unless the surviving corporation has
stockholders' equity of $10,000,000 or more.
Section 10.2. Remedies on Default. Whenever any Event of
Default occurs, the HRA, subject to any rights of the Holder of
a First Mortgage which has been approved by the HRA pursuant to
Section 8.1 of this Agreement, may take anyone or more of the
following actions (but only if the HRA is not then in default
and only after provision of sixty (60) days' written notice
vhich sets forth the nature of the default to Dahlberg in the
case of an Event of Default under Section 10.1(a), (b), (c), or
(d), and then only if such an Event of Default has not been
cured within said sixty (60) days or, if such an Event of
Default cannot be cured within sixty (60) days, Dahlberg does
not provide assurances to the BRA reasonably satisfactory to the
HRA that such an Event of Default will be cured as soon as
reasonably possible and that it will not jeopardize the purposes
of this Agreement and of the Plan):
.
-26-
Resolution 92-6 - Continued
July 14~ 1992
.
(a) The HRA may suspend its performance under the
Agreement until it receives assurances from Dahlberg,
deemed adequate by the HRA, that Dahlberg will cure its
default and continue its performance under the Agreement.
(b) If the Event of Default occurs prior to the .
Closing Date, the HRA may cancel and rescind the Agreement.
.
(c) If the Event of Default occurs after Closing Date
but prior to issuance of the Certificate of Completion, the
HRA may reenter and take possession of the Development
Property and exclude Dahlberg from possession of the
Dahlberg project. The HRA shall thereupon use its best
efforts and act in good faith to sell the Improved Parcel
at the best price obtainable (provided such sale is
permitte.dbyapplicapleila",),such sale to be o.n such terms
and conditions as the HRAdeems re.asonable and appropriate
to satisfy the provisions of the Plan. The HRA shall apply
the proceeds of such sale first to reimburse the HRA for
all costs and expenses incurred by the HRA including but
not limited to payment and prepayment of a pro rata portion
(based on relative square footage of improvements in the
Tax Increment District) of interest, principal and other
chargeson{theTaxlncremel1tBonds} tazes,assessments,
utility charges, payments made to discharge. any
encumbrances or liens, reasonable attorneys' . fees and
expenses (less any amount received by the HRA from the
escrow agreement described in Section. 4.. 6 hereof).i second
to .reimbur.seDab1be:w:g<i,J.1anamountequal to . the Purchase
Price plUS reasonable construction costs incurred by
Dahlberg in connection with the Dahlberg project including
architects'and engineers' ezpenseSi and the balance to be
retained by the HRA.
(d) The HRA may initiate such action, including legal
or administrative action, as is necessary for the HRA to
secure performance of any provision of this Agreement or
recover any amounts due under this Agreement from Dahlberg
or under the escrow agreement described in Section 4.6
hereof.
(e) Sue for damages, including delinquent taxes
levied against the Development Property, provided that any
damages shall be reduced to the extent of any amount
recovered by the HRA under the escrow agreement provided
pursuant to Section 4.6 hereof.
Section 10.3. No Remedv Exclusive. No remedy herein
conferred upon or reserved to the HRA 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
.
-27-
.
.
.
Resolution 92-6 - Continued
July 14, 1992
addition to every other remedy given under this Agreement or 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.
Section 10.4. No Additional Waiver Implied bv One Waiver.
In the event any agreement contained in this Agreement should be
breached by any Party and thereafter waived 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 XI
Additional provisions
Section 11.1. Eaual Emplovment Opportunity. Dahlberg
agrees that du~ing theconst~uction of the Project neither it
nor any of the contractors will unlawfully discriminate against
any employee or applicant for employment because of race, color,
religion, sex,c age, national origin, or political affiliation.
Dahlberg shall cause any general contractor selected by Dahlberg
to present to the City's Human Rights Commission, in advance,
its plan to fulfill the requirements of this Section.
Section 11.2. Not for SpeeulatiQn. Dahlberg's purchase of
the Development Property, and its undertakings pursuant to this
Agreement, are and will be used for the sole and express purpose
of redevelopment of the Development Property and not for
speculation in land holdings.
Section 11.3. Titles of Articles and Sections. Any titles
of the several parts, Articles and Sections of the Agreement are
inserted for convenience of reference only and shall be
disregarded in construing or interpreting any of its provisions.
Section 11.4. Notices and Demands. Except as otherwise
expressly provided in this Agreement, a notice, demand, or other
communication under the Agreement by either party to the other
shall be sufficiently given or delivered if it is in writing
dispatched by registered or certified mail, postage prepaid,
return receipt requested, or delivered personally; and,
(a) in the case of Dahlberg, is addressed to or
delivered personally to Dahlberg at 4101 Dahlberg Drive,
Minneapolis, Minnesota 55422, with copies to Bertin A.
Bisbee, Fredrikson & Byron, P.A., 1100 International
Centre, 900 Second Avenue South, Minneapolis, Minnesota
55402; and
-28-
Resolution 92-6- Continued
July 14, 1992
.
(b) in the case of the HRA, is addressed to or
delivered personally to the HRA to Housing and
Redevelopment Authority In and For the city of Golden
Valley, 7800 Golden Valley Road, Golden Valley, Minnesota
55428, Attention: Director, with copies to Allen D.
Barnard, Best & Flanagan, 3500 IDS Center, Minneapolis,
Minnesota 55402
or at such other address with respect to either such Party as
that Party may, f.rom time to time, designate in writing and
forward to the other as provided in this Section.
Section 11'.5. Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall
constitute one and the same instrument.
Section 11. 6. Modification. If the HRA is requested by
the Holder of a First Mortgage or by a prospective Holder of a
prospective First Mortgage to amend or supplement this
Agreement, or to subordinate its interest therein, the HRA will,
in good faith, consider the request with a view to granting the
same, provided that such request is consistent with the terms
and conditions of the Plan.
.
Sectionll. 7 ~ Inte~pretat.ion and Am.endment . This
Agreement shall be governed by and construed in accordance with
the laws of the State of Minnesota. This Agreement constitutes
the entire qgreement of the parties on the subject matter
hereof, superseding. any prior oral or written agreements. This
Agreement can be modified only by a writing signed by both
parties.
Section 11.8. Severabilitv. In the event any provision of
this Agreement shall be held invalid or unenforceable by any
court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provisions hereof.
Section 11.9. Duration. This Agreement shall be effective
as of the date hereof and shall continue in full force and
effect until Maturity Date. This Agreement .shall survive the
Closing Date and the HRA's delivery of any Deed to Dahlberg.
Section 11.10. Bi~dina Effect. Subject to the provisions
of Article IX, this Agreement is binding upon, and shall inure
to the benefit of, the successors and assigns of the Parties.
Section 11.11. Consents. Any consent or approval required
of a Party under this Agreement shall not be unreasonably
withheld or delayed.
.
-29-
.
.
.
Resolution 92-6 - Continued
July 14, 1992
Section 11.12. Certificates. Upon reasonable request from
time to time, the HRA shall execute and deliver written
certificates to parties designated by Dahlberg concerning
whether the Agreement is in effect, whether any defaults exist
under the Agreement and other similar matters.
ARTICLE XII
Termination of Aoreement
Section 12.1. Dahlbero's Ootions to Terminate. This
Agreement may be terminated by Dahlberg by written notice to the
HRA if Dahlberg' is in compliance with all material terms of this
Agreement and no Event of Default by Dahlberg is then existing;
and
(a) Subject to Section 7.2, the HRAfails to comply
with any material term of this Agreement, and, after
written notice by Dahlberg of such failure, the HRA has
failed to cure such non-compliance within sixty (60) days
of receipt of such notice, or, if such non-compliance
cannot reasonably be cured by the HRA within sixty (60)
days,theHRAhas.not, within sixty (60) days of receipt of
such notice, provided assurances, reasonably satisfactory
to Dahlberg, that such non-compliance will be cured as soon
as reasonably possible;
(b) Closing has not occurred by December 31, 1992,
unless extended by the Parties;
(c) If Dah1berg 's title objectio.nsare not waived by
Dahlberg or cured by the HRA pursuant to Section 3.1;
(d) Subject to Section 3.2, if Dahlberg reasonably
determines that construction of the Improvements is not
practicable without material additional cost due to
existing soil or groundwater conditions, or due to the
presence of hazardous or toxic waste on the Development
Property; or
(e) Subject to Section 2.2(g), if Dahlberg does not
receive prior to the Closing Date all approvals and
consents from governmental authorities which are reasonably
required for construction and use of the Improvements.
In the event of a default by the HRA prior to the Closing
Date which is caused by the HRA's failure to pay any amount
which it is required to pay under this Agreement, Dahlberg, in
lieu of terminating this Agreement, may pay such amount on
behalf of the HRA and reduce the Purchase Price.
-30-
.
(
.
.
,
Resolution 92-6 - Continued
July 14, 1992
Section 12.2. Effect of Termination. Except as provided
in Section 4.5, if this Agreement is terminated pursuant to this
Article XII, this Agreement shall be from such date forward null
and void and of no further effect; provided, however, that
termination of this Agreement pursuant to this Article XII shall
not affect the rights of Dahlberg to institute any action, claim
or demand for damages suffered as a result of breach or default
of the terms of this Agreement.
IN WITNESS WHEREOF, the HRA has caused this Agreement to be
duly executed in its name and behalf and its .seal to be hereunto
duly affixed and Dahlberg has caused this Agreement to be duly
executed in its name and behalf, on or as of the date first
above written.
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
:LDEN~~
Its () 1f;1t-,ri-.
DAHLBERG, INC.
By Ao.jjfIs?J,;fJ
Its VI (). (nUll 'cltu i-
instrument was ack before me this
1992 b K.PtIlI')
, , Y
of THE OUSING AND REDEVELOPMENT
CITY OF GOLDEN VALLEY, on behalf of the
WI The fOre~ng
t I . 1 ~ay of JUlY
a C Olr"
AUTHORITY IN AND FOR THE
organization.
~",..~",J"
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,I MINlllOTA
! I I.OUN1Y
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-31-
.
.
.
Resolution 92-6 - Continued
STATE OF MINNESOTA )
) SSe
COUNTY OF HENNEPIN )
July 14, 1992
The foregoing instrument was acknowledged before me this
'?t:A" day of .gv~~ ' 1992, Rx. _ ~.!!... '1~rt-I2'C.Y .DE1HlE;.ER~,
a P;<'E;-SIJ:JE/V7 _ of DAHLBERG,IN~.. a )b.nn~1:"t~'d'rporat10n,
on beh~lfcff the corporation. (!;,.:~:;;_"'~ ~~-'..;_: ';'~'u'..:~~>;.
~ (i.,n.....'-. . .....,. .-..,
\~:... -~ l _ n. .............. _ .
,./- - . . -.........
-dl!!iij-}~~~~y~
DRAFTED BY:
Best & Flanagan
3500 IDS Center
Minneapolis, Minnesota 55402
9383j
-32-
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EXHIBIT A
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Resolution 92-6 - Continued
July 14, 1992
.
EXHIBIT B
ASSESSMENT AGREEMENT
.
FOR VALUABLE CONSIDERATION, The Housing and Redevelopment
Authority in and for the City of Golden Valley, Minnesota, a
public body corporate established pursuant to Minnesota
Statutes, Section 469.001 ~~. (the "HRA"), and Dahlberg,
Inc., a Minnesota corporation ("Dahlberg"), hereby covenant and
agree that the property described in Exhibit B-1 hereto and the
improvements to be made thereto pursuant to the Second Dahlberg,
Inc. Private Development Agreement between the parties dated
as of , 1992 (the "Development property"), with
respect to which any .real estate taxes, or taxes in lieu thereof
which are levied or assessed and payable by Dahlberg, shall be
assessed to be of a market value of no less than $1,008,000 on
January 2, 1994, and January 2 of every year thereafter that
this Assessment Agreement is in effect (for taxes payable in
1995 and subsequent years), increased in 1994 and subsequent
years by $35.00 for each gross square foot ofirnprovements in
excess of 28,800 square feet, and decreased in 1994 and
subsequent years by the <fair .marketvalueofan:yportion of the
Improvements taken.. incQndemnation or by the power of eminent
domain for which reconstruction is impracticable as provided in
Section 3.8 of the Private Development Agreement, and by
Dahlberg's cost for any portion of the unimproved. Development
Property takeninc::ondemnation or by the power o.feminent domain
(the "Assessor's Minimum Market Value")~
Commencing with taxes payable in the year 1995 and
thereafter during the term of this Assessment Agreement,
Dahlberg shall not seek a reduction of the market value of the
Development Property for property tax purposes below the
Assessor's Minimum Market Value stated above, regardless of
actual market values which may result from incomplete
construction of improvements to the Development Property, or
from destruction or diminution thereof by any cause, insured or
uninsured, except in the case of acquisition or reacquisition of
any portion of the Development Property by a public entity.
Upon execution by the parties, this Assessment Agreement
shall be presented to the Hennepin County Assessor, or to the
Golden Valley City Assessor having the powers of the County
Assessor, if any, pursuant to Minnesota Statutes, Section
469.177, Subd. 8, as hereafter amended (the "Statute"). If this
Assessment Agreement. is approved and certified by such Assessor
in the form of attached Exhibit B-2, this Assessment Agreement
shall be filed, together with a copy of the Statute (Exhibit
B-3), in the office of the Hennepin County Recorder or in the
.
.
.
.
Resolution 92-6 - Continued
July 14, 1992
office of the Hennepin County Registrar of Titles upon transfer
of title of the Development Property from the HRA to Dahlberg.
The parties hereby covenant and agree that the obligations
imposed hereunder shall be the personal obligations of the
parties and shall also be deemed with respect to the Development
Property to be covenants and restrictions running with the land,
and shall constitute burdens and benefits to the HRA and
Dahlberg, their successors, assigns, grantees and all other
parties hereafter owning or holding any interest in the
Development Property or any portions thereof.
,
This Assessment Agreement is effective as of the date
hereof and shall remain in force and effect until such time as
Tax Increment Bonds issued to finance the Development Property
(but not the refunding8fsuch BondS) are no longer outstanding,
but not later.thanDecember31,< 2001.
IN WITNESS WHEREOF, the parties have caused the execution
of this Assessment Agreement this ____ day of May, 1992.
THE HOUSING AND REDEVELOP~NT
AUTHORITY IN AND FOR THE CITY OF
GOtDENVALLEY
By
Its
By
Its
DAHLBERG, INC.
By
Its
STATE OF MINNESOTA )
) SSe
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this
day of , 1992, by
, the
of THE HOUSING AND REDEVELOPMENT
FOR THE CITY OF GOLDEN VALLEY, on behalf of the
and
and
AUTHORITY IN AND
organization.
Notary Public
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.
.
.
Resolution 92-6 - Continued
STATE OF MINNESOTA )
) 55.
COUNTY OF HENNEPIN )
July 14, 1992
The foregoing instrument was acknowledged before me this
day of , 1992, by ,
a of DAHLBERG, INC., a Minnesota corporation,
on behalf of the corporation.
DRAFTED BY:
Best & Flanagan
3500 IDS Center
Minneapolis, Minnesota 55402
Notary Public
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.
.
Resolution 92-6 - Continued
EXHIBIT B-1
LEGAL DESCRIPTION AND PERMIT'fED ENCUMBRANCES
(to be supplied)
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July 14, 1992
.
.
.
Resolution 92-6 - Continued
July 14, 1992
EXHIBIT B-2
ASSESSOR'S CERTIFICATION
The undersigned, being the duly qualified and acting
Director of Property Taxation of Hennepin County, Minnesota,
hereby certifies that:
1. He is the assessor responsible for the assessment of
the Development Property described in the foregoing
Exhibi t B-l.
2. He has read the foregoing Assessment Agreement;
3. He has received and read a copy of the Private
Development Agreement;
4. He has received and reviewed the architectural and
engineering plans and specifications for the
improvements agreed to be constructed on the
Development Property by Dahlberg, Inc. pursuant to the
Private Development Agreement;
5.
He has reviewed the market value previously assigned
to the Development Property upon which such
improvements are to be constructed; and
6.
The undersigned assessor, being legally responsible
for the assessment of the above described Development
Property upon completion of the improvements to be
constructed thereon, hereby certifies that the market
value assigned to such land and improvements upon
completion shall not be less than $1,008,000 on
January 2, 1994, and January 2 of every year
thereafter (for taxes payable in 1995 and subsequent
years) .
ODated
, 1992.
Director of Property Taxation
Hennepin County, Minnesota
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Resolution 92-6 - Continued
July 14, 1992
EXHIBIT B-3
.
Minnesota Statutes. Section 469.177. Subd. 8 (1~90)
.
Subd. 8. Assessment agreements. An authority may, upon.
entering into a development or redevelopment agreement pursuant
to Section 469.176, Subd. 5, enter into a written assessment
agreement in recordable form with the developer or redeveloper
of property within the tax increment financing district which
establishes a minimum market value of the land and completed
improvements ta be constructed thereon until a specified
termination date, which date shall be not later than the date
upon which tax increment will no longer be remitted to the
authority pursuant to Section 469.176, Subd. 1. The assessment
agreement shall be presented to the county assessor, or city
assessor having the powers of the county assessor, of the
jurisdiction in which the tax increment financing district is
located. The assessor shall review the plans and specifications
for the improvements to be constructed, review the market value
previously assigned to the land upon which the improvements are
to be constructed and, so long as the. minimum market value
contained in the assessment agreement appears, in the judgment
of the assessor, . to .bea reasonable ~stimate ,shall execute the
following certification upon such agreement:
The undersigned assessor, being legally responsible
for the assessment of the above described property
upon completion of the improvements to be constructed
thereon, hereby certifies that the market value
assigned to such land and improvements upon completion
shall not. be less than $
.
Upon transfer of title of the land to be developed or
redeveloped from the authority to the developer or redeveloper,
the assessment agreement, together with a copy of this
subdivision, shall be filed for record and recorded in the
office of the county recorder or filed in the office of the
registrar of titles of the county where the real estate or any
part thereof is situated. Upon completion of the improvements
by the developer or redeveloper, the assessor shall value the
property pursuant to Section 273.11, except that the market
value assigned thereto shall not be less than the minimum market
value contained in the assessment agreement. Nothing herein
shall limit the discretion of the assessor to assign a market
value to the property in excess of the minimum market value
contained in the assessment agreement nor prohibit the developer
or redeveloper from seeking, through the exercise of
administrative and legal remedies, a reduction in market value
for property tax purposes; provided, however, that the developer
or redeveloper shall not seek, nor shall the city assessor, the
county assessor, the county auditor, any board of review, any
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.
.
Resolution 92-6 - Continued
July 14, 1992
board of equalization, the commissioner of revenue or any court
of this state grant a reduction of the market value below the
minimum market value contained in the assessment agreement
during the term of the agreement filed of record regardless of
actual market values which may result from incomplete
construction of improvements, destruction, or diminution by any
cause, insured or uninsured, except in the case of acquisition
or reacquisition of the property by a pUblic entity. Recording
or filing of an assessment agreement complying with the terms of
this subdivision shall constitute notice of the agreement to any
subsequent purchaser or encumbrancer of the land or any part
thereof, wheth~r voluntary or involuntary, and shall be binding
upon them.
9384j
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.
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Resolution 92-6 - Continued
July 14, 1992
EXHIBIT C
CERTIFICATE OF COMPLETION
THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY
OF GOLDEN VALLEY, a public body corporate (the "HRA"), and
DAHLBERG, INC., a Minnesota corporation ("Dahlberg"), previously
entered into the Second Dahlberg, Inc. Private Development
Agreement (the "Agreement"), recorded in the Office of the
County Recorder in and for the County of Hennepin and State of
Minnesota, as Dbcument Number , for the following
described property:
Article IV of the Agreement contains certain covenants
which, if not performed by Dahlberg, or its successors and
assigns, would result in a forfeiture and right of re-entry by
the HRA, its successors and assigns. As of the date hereof,
Dahlberg has performed all of such covenants <contained in
Article IV of the Agreement.to the satisfaction of the HRA.
NOW, THEREFOR.E, it is hereby certified that. all building
construction and other physical improvements specified to be
completed by Dahlberg have been so completed and all of the
covenants in Article IV of the Agreement have been duly and
fully performed by Dahlberg/and that the provisions... for
forfeiture of title and right to re-entryby.theHRA for breach
of such covenants, and the escrow agreement securing performance
thereof, are hereby released absolutely and forever insofar as
they apply to the property described above, and the County
Recorder in and for the County of Hennepin and State of
Minnesota is hereby authorized to accept for recording and to
record the filing of this instrument, to be a conclusive
determination of the satisfactory termination of the covenants
of Article IV of the Agreement, the breach of which would result
in a forfeiture and right of re-entry. Notwithstanding the
foregoing, the remaining covenants contained in the Agreement
remain in full force and effect.
THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
GOLDEN VALLEY
By
Its
And
Its
.
.
.
Resolution 92-6 - Continued
STATE OF MINNESOTA )
) SSe
COUNTY OF HENNEPIN )
July 14~ 1992
The foregoing
_ day of
and
and
in and for the City
instrument was acknowledged before me this
I 19_, by
, respectively the
of The Housing and Redevelopment Authority
of Golden Valley, on behalf of the Authority.
THIS INSTRUMENT WAS DRAFTED BY:
BEST & FLANAGAN
3500 IDS Center
Minneapolis, Minnesota 55402
9385j
Notary Public
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.
.
.
Resolution 92-6 - Continued
9420j
July 14, 1992
ExHIBIT D
PRELIMINARY PLANS
(to be supplied)
Resolution 92-6 - Continued
July 14, 1992
EXHIBIT E
.
LIMITED WARRANTY DEED
FOR VALUABLE CONSIDERATION, THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY, a public body
corporate created pursuant to Minnesota Statutes, Section
469.001 et ~. ("Grantor"), hereby grants, bargains and conveys
to DAHLBERG, INC., a Minnesota corporation ("Grantee"), real
property in Hennepin County, Minnesota, described as follows
(the "Property"):
.
together with all he.reditaments and appurtenances belonging
thereto. Grantor, for itself and its successors and assigns,
hereby covenants with Grantee and its successors and assigns,
that it has not made, done, executed, or suf.fered any act or
thing whatsoever whereby the Property, or any part thereof, now
or at any time .hereafter, shall or may be imperiled, charged or
encumbered in any manner whatsoever, except for any covenants,
conditions, or restrictions contained in the North Wirth Parkway
Redevelopment plan adopted by Grantor in1978,a.samended (the
"Plan"), .and.an}"covenants ,.conditions,or restJictions
contained intneSecond Dahlberg, Inc. Private Development
Agreement dated , 1992, between Grantor and
Grantee (the "Agreement").
PrOvided:
1. It is understood and agreed that this Deed is subject
to the covenants, conditions, restrictions and prOVisions of the
Agreement, and that, prior to the Maturity Date, as defined in
the Agreement, Grantee shall not sell, transfer, mortgage or
otherwise convey the Property, or any part thereof or interest
therein, except as permitted by the Agreement.
Grantee hereby covenants and agrees to begin and diligently
prosecute to completion the development of the Property at such
times and as otherwise provided in the Agreement. Promptly
"after completion of the Improvements (as defined in the
Agreement) in accordance with the Agreement, Grantor will
furnish Grantee with a Certificate of Completion, as provided in
the Agreement, which shall be the conclusive determination of
satisfaction and termination of the agreements and covenants in
and pursuant to the Agreement with respect to the obligations of
Grantee to construct the Improvements, and the dates for the
commencement and completion thereof.
.
2. If an "Event of Default" by Grantee, as defined in
Section 10.1 of the Agreement, which is not cured within the
period provided in Section 10.2 of the Agreement, exists prior
.
.
.
Resolution 92-6 - Continued July 14, 1992
to the recording of the Certificate of Completion, then Grantor
shall have the right to re-enter and take possession of the
Property and to terminate and revest in Grantor the estate
conveyed by this Deed to Grantee, as specified in the Agreement.
3. Grantee hereby agrees to do the following:
(a) Maintain insurance of such types and amounts as
specified in, Article VI of the Agreementi
(b) Pay all real estate taxes and'special assessments
on the Property when due and not seek or cause a
reduction in such taxes, except as permitted under
the Agreernenti
(c) Devote ti1.epr()perty to only su.ch uses as are
permitted under the Agreement.
The part~esagree,~,h,atthE! covenants contained in this
Section shall terminate at such time as the principal and
interest on any bonds for which tax increments on the Property
are pledged are paid in full, or December 31, 2Q01, whichever is
earlier.
4. There shall be no discrimination in the use of the
Property by Grantee on account. of race, color, religion, sex,
age, national origin, or pOlitical affiliation during the period
that the Plan remains in effect.
The parties agree that ,all of the .co.venants and
restrictions contained in this"'Deed shall be' binding upon
Grantee, its successors and assigns, for the maximum benefit of
Grantor, its successors and assigns, and shall also be deemed to
run with the land.
IN WITNESS WHEREOF, Grantor has caused this Deed to be duly
executed on its behalf by its duly authorized representatives
this ____ day of , 1992.
THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
GOLDEN VALLEY
By
Ray B. Stockman
Its Chair
By
William S. Joynes
Its Director
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.
.
Resolution 92-6 - Continued
July 14, 1992
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me
this _ day of , 1992, by Ray B. Stockman and
William S. Joynes, respectively the Chair and Director of The
Housing and Redevelopment Authority in and for the City of
Golden Valley, on behalf of the Authority.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Best & Flanagan
3500 IDS Center
Minneapolis, MN 55402
9386j
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Resolution 92-6 - Continued
.July 14, 1992
.
EXHIBIT F
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered
into this _____ day of , 1992, by and among
Norwest Bank Minneapolis, National Association (the "Bank"),
Dahlberg, Inc., a Minnesota corporation (the "Developer") and
The Housing and Redevelopment Authority in and for the City of
Golden Valley (the "HRA").
The Developer and the HRA have agreed to enter into a
Private Development Agreement (the "Development Agreement"), a
copy of which is attached hereto. Section 4.6 of the Development
Agreement requires the Developer to provide security for the
performance of its obligations under the Development Agreement.
The Developer is providing such security pursuant to this
Agreement.
NOW, THEREFORE, inconsideration of the foregoing and in
consideration of the mutual covenants and promises contained
herein, the parties agree as follows:
.
1. In compliance with Section 4.6ofthe Development
Agreement, the,Developer hereby deposits with the Bank $250,000
in cash or cashier's or certified check (the "Escrow Account"),
which shall be held and administered by the Bank as an escrow
security deposit in accordance with this Agreement.
2. The purpose of this Agreement is to secure performance
by the Developer of its obligations under the Development
Agreement. Upon delivery to the Bank by the Director of the HRA
of a signed and acknowledged statement in compliance with this
paragraph, the Bank shall forthwith deliver to' the HRA, in cash
or by cashier's or certified check, an amount equal to the full
value of the Escrow Account, less accrued net income payable to
the Developer pursuant to paragraph 6, as of the date of the
Bank's receipt of the notice. The acknowledged statement from
the HRA shall recite each of the following applicable elements:
(a) One or more of the following Events of Default
described in Section 10.1 of the Development Agreement has
occurred and the specific Event of Default is identified:
(i) Failure by the Developer to pay the Purchase
Price and otherwise perform on the Closing Date, as
defined in the Development Agreement.
.
(ii) After the Closing Date and until the
Certificate of Completion has been issued (as defined
in the Development Agreement), failure by the Developer
to timely pay all real property taxes, assessments or
Resolution 92-6 - Continued
July 14, 1992
.
other charges assessed with respect to the Development
Property, except as provided in Section 7.I(b) of the
Development Agreement.
(iii) Subject to Unavoidable Delays (as defined in
the Development Agreement), and any extensions of time
agreed to by the Developer and the HRA, failure by the
Developer to commence and complete construction of the
Improvements pursuant to the terms, conditions and
limitations of the Development Agreement.
'(iv) Until the Certificate of Completion has been
issued, failure by the Developer to observe or perform
any material covenant, condition, obligation or
agreement on its part to be observed or performed under
the Development Agreement.
.
(v) Until the Certificate of Completion has been
issued, filing by the Developer in any court, pursuant
to any federal or state statute, of a petition in
bankruptcy or insolvency, or for reorganization, or for
the appointment of a receiver or trllsteeof all or a
portion of the Developer's property,.of.an assignment
by tpe. DevEi!loper for.. the benefit ofpreditors.
(vi) Until the Certificate of Comp.letion has been
issued, filing against the Developer in any court,
pursuant to any federal or state statute., of a petition
inbankrup~cy.or insolvEi!ncy, or forireprganiza~ion, or
for the appointment of a receiver or.trustee of all or
a portion of the Developer's properties, if such
proceeding is not dismissed within ninety (90) days
after commencement thereof.
(vii) Until the Certificate of Completion has been
issued, commencement by the Holder of any First
Mortgage (as defined in the Development Agreement) of
foreclosure in the event of a default in any of the
terms or conditions of the First Mortgage.
(viii) Until the Certificate of Completion has
been issued, any merger, consolidation, liquidation,
reorganization or transfer of all or substantially all
of the Developer's assets, unless the surviving
corporation has stockholders' equity of $10,000,000 or
more; and
(b) Such Event of Default has not been cured after
notice and within the time provided by Section 10.2 of the
Development Agreement; and
.
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Resolution 92-6 - Continued
July 14~ 1992
.
(c) The HRA is not then in default under the
Development Agreement.
At such time as the HRA delivers to the Bank the statement
required under this paragraph, it shall deliver a copy of such
statement to the Developer.
3. upon delivery by the Developer of the Certificate of
Completion provided for in Section 4.4 of the Development
Agreement, the Bank shall di.stribute the balance of the Escrow
Account to the Developer, less accrued net income payable to the
HRA pursuant to paragraph 6. The Bank shall also distribute the
balance of the 'Escrow Account to the Developer, less accrued net
income payable to the HRA pursuant to paragraph 6, upon the
Bank's receipt of a signed, written statement or statements from
the Developer and the HRA that the. Development Agreement has been
terminated prior to the Closing Date without an:Event of Default
by the Developer.
4. The Escrow Account shall be invested only in the Bank's
money market savings account in which there is no risk of loss of
principal and from which amounts may be withdrawn at any time
without any penaltiesorcha.rges.
.
5. TheDeyeloper.andthtliHRAp.erebydesignatethe. aank as
escrow agent pursuant to this. Agreement and the. Developer and the
HRA agree to pay equally all reasonable fees charged by the Bank
for servicing the Escrow Account. The Bank has previously
delivered to the Developer .and th.e HRA a written statement of the
f~es .which it will charge undf:)ttb.is<.l!scrow<Agreement.
6. All interest and income earned on the Escrow Account
shall be paid monthly, after subtraction by the Bank of any
accrued expenses, in equal shares to the Developer and the HRA.
7. The HRA and the Developer agree that this Agreement
shall in no way infringe on or restrict the rights of the parties
under the Development Agreement.
8. The Bank is not a party to nor bound by any instrument
other than this Agreement and shall not be required to take
notice of any default or any other matter, nor be bound by, nor
be required to give any notice or demand, nor be required to take
any action whatever except as provided in this Agreement.
9. This Agreement shall be effective on the date it is
executed by the parties hereto and shall remain in full force and
effect until the entire Escrow Account shall have been
distributed pursuant to this Agreement.
10. The Developer hereby agrees to indemnify and hold
harmless the Bank from and against all claims, liabilities,
.
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.
.
.
Resolution 92-6 - Continued
July 14, 1992
losses, actions, suits or proceedings at law or in equity, or any
other expenses, fees, or charges of any character or nature,
which the Bank may incur or with which the Bank may be threatened
by reasons of its acting as escrow agent under this Agreement.
Notwithstanding the foregoing, it is specifically understood and
agreed that, in the event the Bank is found guilty of gross
negligence or willful misconduct or malfeasance in the exercise
of its responsibilities hereunder, the indemnification provisions
of this Agreement shall not apply.
11. The Bank shall otherwise not be liable for any mistakes
of fact or for "any acts or omissions of any kind unless caused by
its willful misconduct or gross negligence.
12. The Bank may resign upon 30 days' advance written
notice to the parties to this Agreement. If a successor escrow
agent is not appointed within such 30-day period, the HRAand the
Developer may appoint as successor a commercial bank located in
Hennepin or Ramsey County, Minnesota, and having capital of at
least $50 million or petition any court of competent jurisdiction
to name a successor. If no successor can be found using the
above procedures, the Developer shall replace the Escrow Account
with a letter of credit in favor of the HRA in the amount of
$250,000, subject to reasonable terms which are usual and
customary for the type of obligations of the Developer under the
Development Agreement.
13. The Bank may employ such legal counsel and other
experts as it considers necessary for proper advice inc.onnection
with this Agreement and shall incur no liability with respect to
any action taken or omitted in good faith upon the advice of such
counselor in the exercise of its best judgment or in accordance
with any notices, requests, waivers, consents, instructions and
other papers and documents which it believes to be genuine,
authorized or conforming.
14. The Bank shall not be bound by the provisions of any
other agreement heretofore or hereafter made between or among any
of the Developer, or the HRA or any other persons or of any other
agreement to which the Bank is not a signatory party.
15. In the event of a dispute with reference to the Escrow
Account, the Bank, at its option, may disregard any and all
notices and instructions given by any person and suspend the
performance of its obligations set forth in this Agreement and
may retain the Escrow Account, pending the resolution of the
dispute by final order of a court or in any other manne.r
satisfactory to the Bank. The Bank shall be entitled to rely on
any final order, judgment or other legal process which it
believes to be genuine and binding upon it. This Agreement is
for the mutual benefit of the Developer and the HRA and may not
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.
.
.
Resolution 92-6 - Continued
July 14, 1992
be modified or terminated except as provided herein or except by
a writing signed by them and by the Bank.
16. All notices and other communications hereunder shall be
in writing and shall be either personally delivered or sent by
registered or certified mail, return receipt requested as follows:
(a) To Bank:
Norwest Bank Minneapolis, N.A.
Trust Department
8th street and Marquette Avenue
'Minneapolis, MN 55479
(b) To HRA:
Golden Valley HRA
Attention: William S. JOYnes, Director
7800 Golden Valley Road
Golden Valley, MN 55427
Copy to:
Allen D. Barnard
Best & Flanagan
3500 IDS Center
Minneapolis ,.MN 55402
(c) To Developer:
Dahlberg, Inc.
Attention: Joan C. utter
600 South Highway 169
Suite 701
Minneapolis, MN 55426
Copy to:
Bertin A. Bisbee
Fredrickson & Byron, P.A.
1100 International Centre
900 Second Avenue South
Minneapolis, MN 55402
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above
written..
NORWEST BANK MINNEAPOLIS, N.A.
By
Its
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.
.
Resolution 92-6 - Continued
9398j
July 14, 1992
DAHLBERG, INC.
By
Its
THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
GOLDEN VALLEY
By
Its
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