Loading...
94-09 HRA Resolutions Log Resolution 94-9 August 9, 1994 e Commissioner Tremere introduced the following resolution and moved its adoption: RESOLUTION APPROVING SALE OF CERTAIN REAL PROPERTY IN THE GOLDEN HILLS REDEVELOPMENT AREA AND AMENDING REDEVELOPMENT PLAN WHEREAS, the Housing and Redevelopment Authority in and for the City of Golden Valley, Minnesota (hereinafter referred to as the "HRA"), and the City Council of the City of Golden Valley, Minnesota, have approved the Golden Hills Redevelopment Plan; and WHEREAS, the Golden Hills Redevelopment Plan contemplates the redevelopment of the West Area in office, office warehouse, office service and light manufac- turing; and WHEREAS, MEPC, Inc. a Minnesota Corporation (hereinafter referred to as "Developer") has made a proposal for the construction of a three-story, 83 unit, hotel facility; and 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 Golden Hills Redevelopment Area; and WHEREAS, the HRA has determined the use value of the real property con- templated by the Developer's proposal; and e WHEREAS, pursuant to Minnesota Statutes ~469.029 the HRA has duly given notice in the form attached as Exhibit A of a pUblic hearing on the proposed sale of the property legally described in Exhibit B attached hereto (hereinafter the "Subject Property" and has duly held said public hearing. NOW, THEREFORE, BE IT RESOLVED, that the HRA does hereby make the following 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 Golden Hills Redevelopment Plan and it is hereby amended to include hotel as an appropriate use in the West Area; (3) The use value of the Subject Property is hereby established as $100,000; (4) In consideration of the restrictions on the sale and use of the Subject Property imposed by Minnesota Statute ~469.029 and the restrictions imposed by the North Wirth Redevelopment Plan, sale of the Subject Property to the Developer at $100,000 is appropriate. e e e e Resolution 94-9 - Continued August 9, 1994 BE IT FURTHER RESOLVED that: (1) The sale of the Subject Property to the Developer on the terms and conditions set forth in the development agreement attached hereto as Exhibit C is hereby approved; and (2) The Chair of the HRA 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 pro- vided 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. ~A.~ David A. Thompson, Chair Motion for t e dop ion of the foregoing resolution was seconded by Commissioner Johnson and 0 a vote taken thereon, the fOllowing voted in favor thereof: Johnson, Mi ck , Thompson and Tremere and the fo 11 owi ng voted agai nst the same; none, whereupon said resolution was declared duly passed and adopted, signed by the Chair and his signature attested by the Director. . . . Resolution 94-9 - Continued August 9, 1994 Exhibit A PLEASE PUBLISH IN YOUR ISSUE DUE OUT APRIL 27,1994 NOTICE OF PUBLIC HEARING (APPROVAL OF SALE OF CERTAIN REAL PROPERTY TO TO MEPC AMERICAN PROPERTIES INC. FOR REDEVELOPMENT) NOTICE IS HEREBY GIVEN that the Housing and Redevelopment Authority (HRA) of Golden Valley, Minnesota will meet at the Golden Valley City Hall, Council Chambers, 7800 Golden Valley Road, on Tuesday, May 10, at 5:30 PM and will then and there consider the sale and terms of sale of the following described tract located north of Wayzata Blvd. (1-394 Frontage Road) and west of the MN&S Railroad, Golden Valley, Minnesota, to MEPC American Properties Inc. for redevelopment pursuant to Minnesota Statutes Section 469.029. The legal description is as follows: That part of Government Lot 3, Section 4, Township 117 North, Range 21 West of the 5th Principal Meridian, described as follows: Commencing at the point of intersection of the North line of Superior Boulevard, now the Wayzata Boulevard, as the same was originally laid out, with a line parallel with and distant 190 feet, measured at right angles Northwesterly from the most Southeasterly main track center line of the Minneapolis, Northfield and Southern Railway, as the same is now located and established over and across said Government Lot 3, said last described parallel line being hereinafter referred to as line "A" in this description; thence West along the North line of said boulevard 95 feet; thence at right angles North 312.33 feet to a point hereinafter referred to as point "A"; thence East parallel with the South line of said Government Lot 3, 244.89 feet, more or less, to above mentioned line "A"; thence Southwesterly along said line "A" 346.25 feet, more or less, to the point of beginning. And That part of the following described property: Lot 1, Block 1, GOLDEN HILLS WEST ADDITION, according to the recorded plat thereof, Hennepin County, Minnesota. And That part of Government Lot 3, Section 4, Township 117, Range 21, Hennepin County, Minnesota, lying northerly of Wayzata Boulevard and lying between the west line of said Lot 1, Block 1, GOLDEN HILLS WEST ADDITION and said line "A" described above. lying southerly of a line described as beginning at said point "A" described above; thence east parallel with said south line of Government Lot 3 a distance of 410.88 feet to the east line of said Lot 1, Block 1, GOLDEN HILLS WEST ADDITION and said line there terminating. The proposal is to construct a an 83-unit Hotel on this site. All interested parties may appear in person or by counsel and be heard. BY THE HOUSING AND REDEVELOPMENT AUTHORITY William S. Joynes, HRA Director . . . Resolutin 94-9 - Continued August 9, 1994 Exhi bit B DEVELOPMENT PROPERTY LEGAL DESCRIPTION That part of Government Lot 3, Section 4, Township 117 North, Range 21 West of the 5th Principal Meridian, described as follows: Commencing at the Point of intersection of the North line of Superior Boulevard, now the Wayzata Boulevard, as the same was originally laid out, with a line parallel with and distant 190 feet, measured at right angles Northwesterly from the most Southeasterly main track center Line of the Minneapolis, Northfield and Southern Railway, as the same is now located and established over and across said Government Lot 3, said last described parallel line being hereinafter referred to as line "A" in this description; thence West along the North line of said boulevard 95 feet; thence at right angles North 312.33 feet to a point hereinafter referred to as point "A"; thence East parallel with the South line of said Government Lot 3, 244.89 feet, more or less, to above mentioned line "A"; thence Southwesterly along said line "A" 346.25 feet more or less, to the point of beginning. And That part of the following described property: Lot 1, Block 1, GOLDEN HILLS WEST ADDITION, according to the recorded plat thereof, Hennepin County, Minnesota. And That part of Government Lot 3, Section 4, Township 117, Range 21, Hennepin County, Minnesota, lying northerly of Wayzata Boulevard and lying between the west line of said Lot 1, Block 1, GOLDEN HILLS WEST ADDITION and said line "A" described above. lying southerly of a line described as beginning at said point "A" described above; thence east parallel with said south line of Government Lot 3 a distance of 410.88 feet to the east line of said Lot 1, Block 1, GOLDEN HILLS WEST ADDITION and said line there terminating. , . Resolution 94-9 - Continued . . . August 9. 1994 Exhibit C MEPC PR:tVATB DBVJ:LOPMBNT AGRBDmNT THIS AGREEMENT, effective as of 4ctSTJf~ 1994, is made and entered into by and between THE HOU ING 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 sea., with its principal offices at 7800 Golden Valley Road, Golden Valley, Minnesota 55427 (the "HRA"), and MEPC AMERICAN PROPERTIES, INC., a Delaware corporation with its Minnesota office located at 1550 Utica Avenue South, Suite 120, Minneapolis, Minnesota 5541~ ("MEPC"). WHEREAS, the HRA and the City of Golden Valley (the "City") adopted the Golden Hills Redevelopment Plan (the "Plan") in October of 1984, and have since made certain amendments thereto, for the purpose of redeveloping approximately 50 acres located in the City of Golden Valley (the "Redevelopment Area"); and WHEREAS, the Redevelopment Area has been designated as a tax increment district pursuant to applicable Minnesota statutes; 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, MEPC has submitted to the HRA a proposal for the development of a hotel project with approximately 83 rooms (the "Hotel project") on a site in the Redevelopment Area (the "Hotel Site"); and WHEREAS, the Hotel Site includes a parcel that is owned by the HRA and that MEPC wishes to purchase from the HRA (the "Development Property"), and an adjacent parcel (the "Adjacent Parcel"), that MEPC has agreed to purchase from the current owner; and WHEREAS, following its acquisition of the entire Hotel Site, MEPC intends to sell the Hotel Site to a third party which will construct and operate the Hotel Project; and WHEREAS, the HRA, after public hearing, has approved the Hotel Project as being consistent with the provisions of the Plan; 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: . . . Resolution 94-9 - Continued EXHIBIT C TABLE OF CONTENTS Article I - Definitions 1.1. Definitions Article II - ReDresentations and Warranties 2.1. 2.2. Representations and Warranties by the BRA Representations and Warranties by Developer Article III - Title and Other Matters 3.1. 3.2. 3.3. 3.4. 3.5. 3.6. 3.7. 3.8. Marketable Title Survey, Replatting and Soil Analysis Real Estate Taxes and Special Assessments Deed Recording Use Condemnation Guaranty (optional) Article IV - Construction of ~mDrovements 4.1. 4.2. 4.3. 4.4. 4.5. Construction of Improvements Commencement and Completion of Construction Certificate of Completion Deposit and Reimbursement of BRA Expenses by Developer Letter of Credit Article V - Assessment Aareement and Pavrnent of Taxes 5.1. 5.2. Execution of Assessment Agreement PaYment of Taxes, Assessments, Etc. Article VI - Insurance 6.1. Insurance Article VII - Undertakinas of the HRA 7.1. 7.2. 7.3. Sale of Development Property Limitations on Financial Undertakings of the HRA HRA to Maintain Existence Article VIII - Mortaaae Financing 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 2 August 9, 1994 Paae 4 6 7 8 9 10 10 11 11 11 11 11 12 12 13 13 14 14 15 17 18 18 19 19 19 21 21 . Resolution 94-9 - Continued EXHIBIT C Article IX - Restrictions on Transfer: Indemnificatio~ 9.1. Restrictions on Transfer 9.2. 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 Provisions 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. Developer'S Options to Terminate Effect of Termination August 9t 1994 22 23 23 24 25 25 25 25 25 25 26 26 26 26 26 26 27 27 27 28 Exhibits: A Legal Description and Permitted Encumbrances B Assessment Agreement B-1 Legal Description and Permitted Encumbrances B-2 Assessor's Certification B-3 Minnesota Statutes, Section 469.177, Subd. 8 C Certificate of Completion D Preliminary Plans E Demolition Specifications F Limited Warranty Deed 3 Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . ARTICLE I Definitions Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears from the context: "Adiacent Parcel" mean the real property described in Exhibit A of this Agreement. "Aqreement" means this Private Development Agreement by and between The Housing and Redevelopment Authority in and for the City of Golden Valley, Minnesota, and MEPC American Properties, Inc., a Delaware corporation, as the same may be from time to time modified, amended or supplemented. "Assessment Aqreement" mean~ the assessment agreement to be executed by the HRA and Developer, 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. "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. . "Certificate of Comoletion" means the certification, in the form of the certificate contained in Exhibit C attached to and made a part of this Agreement, provided to Developer pursuant to Section 4.4 of this Agreement upon satisfactory completion of the Improvements. "Citv" means the City of Golden Valley, Minnesota. "Closinq Date" means the date upon which the present owner of the Adjacent Parcel conveys it to the HRA, and the HRA conveys the entire Hotel Site to Developer, which shall be on or after the date the Parties have obtained all necessary environmental assurances and consents and approvals required for construction of the Improvements, and which the Parties expect to be on or about December 1, 1994. "County" means the County of Hennepin, Minnesota. "Develooer" means MEPC American Properties, Inc., a Delaware corporation, and its successors and assigns under this Agreement. . "Develooment Plans" means the plans, specifications, drawings, and related documents on all construction work to be performed by Developer 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 include, for each building or other structure to be 4 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 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 plan. The Development Plans are attached as Exhibit D and are hereby approved. No changes, except those deemed minor by the HRA Director, shall be made to the Development Plans without prior written approval by the BRA. "Develooment Prooertv" means the real property described in Exhibit A of this Agreement. "Event of Default" means an action by Developer listed in Section 10.1 of this Agreement. "First Mortaaae" means any first priority mortgage which is secured, in whole or in part, by Developer'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. "Holder" means the owner of the First Mortgage. "Hotel Pro;ect" means the construction and operation of the Improvements by Developer on the Hotel Site pursuant to the terms of this Agreement. "Hotel Site" means the Development Property and the Adjacent Parcel. The parties expect that the Hotel Site will have the following legal description upon completion of its replatting: Lot 1, Block 1, Golden Hills West 2nd Addition "HRA" means The Housing and Redevelopment Authority in and for the City of Golden Valley. "Imoroved Parcel" means the Hotel Site and the completed Improvements. "Imorovements" means a Holiday Inn Express hotel facility, containing a minimum of 83 rooms, plus meeting rooms, pantry, indoor swimming pool and exercise room, with a brick and stucco exterior plus all other improvements, including fixtures and equipment, to be constructed by Developer upon the Hotel Site pursuant to this Agreement, as such improvements are defined in the Development Plans. "MEPC" means MEPC American Properties, Inc. a Delaware corporation, and its successors and assigns under this Agreement. "Net Proceeds" means any proceeds paid by an insurer to Developer, the Holder of the First Mortgage, or the HRA under a policy or policies of insurance to be provided and maintained by Developer pursuant to Article VI of this Agreement and remaining after deducting all expenses (including reasonable fees and 5 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 disbursements of counsel) incurred in the collection of such proceeds. "Parties" means the HRA and Developer. "Party" means either the HRA or Developer. "Plan" means the Golden Hills Redevelopment Plan, adopted by the City and the HRA in October of 1984, and as amended through the date hereof. "Purchase Price" means the sum of $100,000. "Redevelooment Area" means the approximately 50 acres located in Golden Valley, Minnesota that are subject to the Plan. "State" means the State of Minnesota. "Tax Increment District" means the Redevelopment Area. "Tax Increment Financinq Act" means the statutes located at Minnesota Statutes, Sections 469.174 through 469.179, inclusive, as amended. "Tax Increment Financinq 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 Delavs" means actual delays due to events directly affecting the Hotel Site 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 Reoresentations and Warranties Section 2.1. Reoresentations 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 469.002, and a Tax Increment District pursuant to Minnesota Statutes, Section 469.042, and is an "existing project" pursuant to Minnesota Statutes, Section 469.179. 6 Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . (c) The BRA has 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. (d) The Hotel Project, as defined and described in this Agreement, is in conformance with the Plan. (e) The BRA is the fee owner of the Development Property. (f) All improvements previously on the Development Property have been demolished in accordance with the specifications attached as Exhibit E. 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. Reoresentations and Warranties bv Develooer. Developer represents and warrants that: (a) Developer is a corporation duly organized under Delaware law and in good standing under the laws of the State. . (b) Developer is not in violation of any provisions 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 Developer according to its terms, subject to laws affecting the rights of creditors generally or principles of equity. (c) Developer shall construct, operate and maintain the Improvements upon the Hotel Site in accordance with the terms of this Agreement, the Plan and all local, state and federal laws and regulations. . (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 Developer'S Articles of Incorporation or Bylaws, as amended, or any indenture, mortgage, agreement or instrument of whatever nature to which Developer 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 contemplated, to which Developer is a party, or to which any property of Developer is subject, 7 Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . which, if determined adversely, would individually or in the aggregate have a material adverse effect on Developer's financial position, or prevent or impair Developer's ability to perform any covenants or obligations under this Agreement. (f) Developer has previously delivered to the HRA copies of its most recent financial statements, prepared in accordance with generally accepted accounting principles; since the date of such statements, there have been no changes in Developer's financial condition which would have a material adverse effect on Developer, or which would prevent or impair Developer's ability to perform any covenants or obligations under this Agreement. (g) Developer will act in good faith and use its best efforts to obtain all consents and approvals required for construction of the Improvements, and Developer will comply with all reasonable requirements imposed as conditions for such consents and approvals even if such requirements involve changes to the Development Plans (so long as such changes are not substantial). 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. . ARTICLE III Title and Other Matters Section 3.1. Marketable Title. Subject to Section 7.2(f), the HRA agrees to furnish to Developer, within 30 days after Developer'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 the HRA subject only to the following: (a) Building, zoning and similar laws and ordinances. (b) Mineral rights reserved to the State of Minnesota. (c) Easements of record which will not interfere with Developer'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 Developer, including those restrictions and reversionary rights contained in this Agreement. . 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 8 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 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 Developer. Developer shall be allowed 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 120 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 60 days, or such longer period as is agreed to by Developer, and Developer does not waive such objections, then Developer shall have the right to terminate this Agreement by giving written notice thereof to the HRA. Promptly after the execution of this Agreement, the HRA shall commence a proceeding to register title for the Hotel site in the Hennepin County District Court, and shall prosecute the proceeding to completion with all reasonable efforts. The parties shall share the costs and fees associated with the proceeding pro rata, based on the ratio of the square footage of the Development Property to the square footage of the Adjacent Parcel; provided, however, that Developer shall pay all costs and fees related to any issues concerning the Adjacent Parcel which are contested by third parties, and the HRA shall pay all costs and fees related to any issues concerning the Development Property which are contested by third parties. Section 3.2. Survey. Reolattina and Soil Analvsis. 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 Hotel site 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 HRA shall also plat or replat the Hotel site where determined necessary by the City for the purpose of simplifying future descriptions and to obviate the need for future references to the Plan. Developer agrees to sign any new plat if necessary. The completion of such surveying and platting by the Parties shall be a condition of closing. Developer 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 of the Hotel site. As soon as practicable after the execution of this Agreement, Developer, at its expense, shall perform a reasonably complete structural and environmental soil analysis of the Hotel Site. In the event Developer 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 Hotel Site, Developer shall have the option of terminating this Agreement pursuant to 9 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 Section 12.1(d), provided that any such termination must occur by October IS, 1994. Developer may extend the date by which notice of termination must be given pursuant to this paragraph by written notice to the HRA at least five days prior to the termination date then in effect, provided that Developer has used its best efforts to complete the analysis through such time. Any extension shall be for no more than 30 days and in no event later than November IS, 1994. The HRA agrees to reimburse Developer for its out-of-pocket costs for the environmental analysis of the Development Property, subject to a maximum of $3,849, upon presentation to the HRA of detailed invoices or other fee statements. Any such reimbursement shall be includible in the expenses for which the HRA is entitled to be reimbursed pursuant to Section 4.4 if the Closing does not occur. 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 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. Developer shall pay all real estate taxes, and installments of special assessments payable therewith, which become payable after December 31, 1994. Section 3.4~. Upon tender to the HRA on the Closing Date of (i) the Purchase Price for the Development Property from Developer and (ii) a deed for the Adjacent Parcel from the fee owner thereof, the HRA shall deliver to Developer a limited warranty deed describing the Hotel Site in the form attached as Exhibit F (the "Deed"). The Deed shall be subject to the restrictions, reservations and encumbrances of record, if any, 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 Developer shall mutually agree. The Deed shall contain a forfeiture clause providing for revesting of title of the Hotel Site 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 Hotel Site to Developer, 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 Developer, 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 10 Resolution 94-9 - Continued .EXHIBIT C August 9,1994 . actions to encumber title, or fail to take any action necessary 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 Developer by the HRA pursuant to this Section. Section 3.5 Recordina. Developer 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. Developer 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. From the Closing Date through December 31, 2008, Developer shall devote the Hotel Site only to use as a hotel facility, as specified in this Agreement, and there shall be no unlawful discrimination in the use of the Hotel Site on account of race, color, religion, sex, age, national origin, or political affiliation. If the Plan is subsequently amended in a material respect, such amendment shall not bind Developer or the Hotel Site without Developer'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 December 31, 2008, Developer 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, subject to the rights of the Holder of a First Mortgage, Developer 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 to the extent practicable (or, in the event only a part of the Improvements have been taken, then to reconstruct such part) upon the Development Property. ARTICLE IV Construction of ImDrovements . Section 4.1. Construction of ImDrovements. Developer agrees that it will construct the Improvements on the Development Property in substantial conformance with the approved Development Plans for the Improvements and in conformance with all applicable City requirements. Developer agrees that the scope and scale of the Improvements to be constructed shall not be significantly 11 Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . less than the scope and scale of the Improvements as detailed and outlined in the Development Plans. Section 4.2. Commencement and ComDletion ot Construction. Developer shall commence construction of the Improvements promptly after the Closing Date, and shall diligently prosecute construction to completion. Developer shall complete construction of 100 percent of the Improvements, as a percentage of market value, by January 2, 1996. 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 Developer on the Development Property shall be in substantial conformity with the Development Plans as submitted by Developer and approved by the HRA. Subsequent to execution of this Agreement, and until certification of the Improvements pursuant to Section 4.3, Developer 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 Developer with respect to construction of the Improvements. Developer 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 Developer to the Holder of the First Mortgage in lieu of foreclosure, except as provided in Section 8.3. Section 4.3 Certificate of ComDletion. (a) Promptly after completion of the Improvements in accordance with the provisions of this Agreement, the HRA will furnish Developer 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 Developer 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 Developer, provide Developer with a written statement, indicating in adequate detail in what respects Developer 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 12 Resolution 94-9 - Continued EXHIBIT C August 9, 1 . the BRA, for Developer to take or perform in order to obtain such Certificate of Completion. . Section 4.4 Deoosit and Reimbursement of HRA Exoenses. Developer has previously deposited $10,000 with the HRA for the reimbursement of certain out-of-pocket expenses incurred by the HRA in connection with the Hotel Project. Developer hereby deposits with the HRA an additional $10,000 which, together with the prior $10,000 deposit is referred to herein as the "Deposit." The HRA shall treat the Deposit as a separate account on its books, but the BRA may commingle the Deposit with its other funds for purposes of investment and reinvestment. All interest earned on the Deposit shall accrue to the BRA. In the event the closing of the sale of the Hotel Site by the HRA to Developer pursuant to this Agreement does not occur by December 31, 1994, for any reason other than a default by the HRA as provided in Section 12.1(a), it being agreed that failure of the Closing to occur for one of the reasons specified in Section 7.2 shall not constitute a default by the HRA, Developer shall reimburse the HRA for the total amount of out-of-pocket expenses relating to this Agreement or the Hotel Site paid or incurred by the BRA between March 15, 1994 and December 31, 1994 or, if earlier, the date of termination of this Agreement, sqbject to a maximum of $20,000. When any amount becomes due and payable hereunder, the HRA shall deduct such amount from the Deposit and provide Developer with a reasonably detailed itemization therefor. After the paYment of all such amounts, the HRA shall refund to Developer the balance of the Deposit, if any. If the closing occurs prior to December 31, 1994, the Deposit shall be applied as a credit against the Purchase Price. The HRA's rights under this Section 4.4 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 Developer, except to the extent that the HRA's damages are reduced by any amounts received under this Section 4.4. . Section 4.5 Letter of Credit. On the Closing Date, Developer shall deliver to the HRA, at Developer'S sole cost and expense, an irrevocable letter of credit in the amount of $150,000, issued by a reputable bank and in a form previously approved by the HRA, which shall secure Developer'S obligations under this Agreement. Any letter of credit provided under this Section shall provide for expiration in"not less than one year, or, if earlier, on a date which is not less than 60 days after the contractor's written estimated date for completion of all of the Improvements. At least 30 days prior to the expiration of any letter of credit provided under this Section, Developer shall provide the HRA with a replacement letter of credit, unless the Certificate of Completion has previously been issued. In the event Developer fails to deliver any letter of credit or replacement letter of credit, Developer shall be in default hereunder with no opportunity to cure and the HRA may immediately draw upon any letter of credit then in effect. Any letter of credit provided under this Section shall permit the HRA to draw upon it for the full face amount thereof, 13 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 in the Event of Default as defined in Section 10.01 hereof (but only after the expiration of any period to cure provided in Section 10.2), or immediately in the event Developer fails to comply with any obligation stated in this Section with respect to replacement letters of credit. Developer's obligation to maintain a letter of credit under this Section shall terminate after issuance of the Certificate of Completion to Developer. The HRA's rights with respect to the letter of credit provided under this Section shall not limit any other remedy to which it is entitled under this Agreement .or at law or equity, except to the extent that the HRA's damages are reduced by its recovery under the letter of credit. ARTICLE V Assessment Aareement and Payment of Taxes Section 5.1. Execution of Assessment Aareement. Developer 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, Developer 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 Developer, shall be assessed to be of a market value of no less than $1,600,000 on January 2, 1996, and January 2 of every year thereafter until December 31, 2008 (for taxes payable in 1997 and subsequent years), increased in 1996 and subsequent years by the amount of $19,277 for each hotel unit in the Hotel Project in excess of 83 units, and decreased in 1996 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 Developer'S cost for any portion of the unimproved Hotel Site taken in condemnation or by the power of eminent domain. Section 5.2. Payment of Taxes, Assessments. Etc. (a) Following the Closing Date, Developer 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 December 31, 2008 with respect to the Development Property or any part thereof and pursuant to the provisions of the Assessment Agreement. (b) Following the Closing Date, Developer 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 14 Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . December 31, 2008 with respect to the Hotel Site or any part thereof. Developer 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 Developer 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 Hotel Site shall be strictly subject to the restrictions contained in the Assessment Agreement. ARTICLE VI Insurance. Section 6.1. Insurance. (a) Developer 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: . (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 $5,000,000 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 pursuant to clauses (i) and (ii) above 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 15 Resolution 94-9 - Continued EXHIBIT C Augu st 9, 1994 . to give not less than thirty (30) days' advance written notice to the HRA and Developer 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 December 31, 2008, Developer 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 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 actual replacement cost of the Improvements (excluding foundation and excavation costs and other uninsurable items) and equipment. (ii) Comprehensive general public liability insurance, including personal injury liability for injuries to persons and/or property, including any injuries resulting from the operation of automobiles or other motorized vehicles on or about the Hotel Site, in the minimum amount for each occurrence of $5,000,000. (iii) Worker's compensation insurance respecting all employees of Developer in amounts not less than the minimum required by statute. . (c) All insurance required in this Article VI shall be taken out and maintained in responsible insurance companies selected by Developer which are authorized under the laws of the State to assume the risks covered thereby. At the first time that any insurance is required to be in effect hereunder, Developer will deposit with the HRA a certificate or certificates or binders of the respective insurers evidencing that such insurance is in force and effect. Unless otherwise 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 Developer and the HRA at least thirty (30) days before the cancellation or modification becomes effective. Upon the BRA's request, 16 Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . Developer shall furnish the BRA evidence satisfactory to the HRA that any policy required hereunder is in effect. In lieu of separate policies, Developer may maintain a single policy, or blanket or umbrella policies, or a combination thereof, which provide the total coverage required herein, in which event Developer 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 Developer shall within sixty (60) days after such damage or destruction, commence to repair, reconstruct and restore 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, Developer 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. Developer shall complete the repair and reconstruction of the Improvements, whether or not the Net Proceeds of insurance received by Developer for such purposes are sufficient to pay for the same. Any Net Proceeds remaining after completion of construction shall be disbursed to Developer, 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 First Mortgage, but only to the extent of amounts owing to the Holder under the First Mortgage. ARTICLE VII Undertakinas of the HRA Section 7.1. Sale of Develooment Prooertv. As consideration for the purchase of the Development Property and construction of the Improvements by Developer, the HRA agrees to complete, subject to the provisions of Section 7.2 below, the following actions: (a) Sale of the Development Property to Developer 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 Hotel Site, including trunk storm sewer, sanitary sewers, water mains, hydrant and valves, sidewalks and street lighting, plus street construction in accordance with the Development Plans, including driveway approaches, curb cuts, turn lanes, resurfacing and signage and signalization. Such installation shall be done in a timely manner and pursuant to construction plans reviewed by 17 Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . Developer. The cost of such installation shall be paid by the HRA and shall not be assessed against the Hotel Site. (c) Use its best efforts with the City so that the Improvements may constitute a permitted use under the zoning ordinance of the City. Section 7.2. Limitations on Financial Undertakinas of the BRA. The provisions of Section 7.1 of this Agreement notwithstanding, the BRA shall have no obligation to Developer under this Agreement to take any action provided for in this Agreement except upon existence of the following conditions: (a) Developer has satisfied all conditions precedent under this Agreement; (b) No Event of Default has occurred and is then continuing beyond the cure period provided in Section 10.2; (c) The HRA and Developer have received all necessary approvals from the City, the County Assessor and other authorities to implement this Agreement; . (d) The HRA is not the subject of any court or administrative proceeding seeking to enjoin or otherwise prevent the HRA from taking any action under this Agreement; (e) The HRA has acquired the access easement over the Hotel Site running in favor of the Midland Welding and Buttkovich parcels by purchase or condemnation at a reasonable cost; and (f) A title insurance company has agreed, at a reasonable cost, to insure over any easements or other adverse claims relating to the Hotel Site prior to the completion of the registration proceeding described in Section 3.1. The parties agree that the failure of the closing to occur due to any of the above reasons shall not constitute an event of default by the HRA. Section 7.3. HRA to Maintain Existence. The BRA 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 in full force and effect its existence, or to assure the assumption of its obligations under this Agreement and the Development Agreement by any public body succeeding to its powers. . 18 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 ARTICLE VIII Mortaaae Financing Section 8.1. ApDroval of Mortaaae. Any First Mortgage prior to issuance of the Certificate of Completion shall require the prior written approval of the HRA's Director. Developer 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. 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 Hotel Site pursuant to the foreclosure, or conveyance by Developer 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 Hotel Site 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 Hotel Site 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 Agreement, as such are binding on Developer, and such party shall not be entitled to any additional rights or privileges granted a Holder hereunder. Section 8.2. Notice of Default: CODY to Mortaaaee. Whenever the HRA shall deliver any notice or demand to Developer witr. respect to any breach or default by Developer in its obligations or covenants under this Agreement, the HRA shall at the same time forward a copy of ~uch notice or demand to each known Holder of any First Mortgage at the last address of such Holder shown in the records of the HRA. Section 8.3. Mortaaaee's ODtion to Cure Defaults. After any breach or default referred to in Section 8.2 hereof, each such Holder shall (insofar as the rights of the HRA 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 19 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 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 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 Hotel Site. Such agreement shall also permit the Holder to construct on the Hotel Site any hotel, office or office warehouse improvements provided (1) such improvements meet all City requirements, (2) the estimated market value of the Hotel Site with the completed improvements is not less than $1,600,000, and (3) if the estimated market value of the Hotel Site with the completed improvements is in excess of $2,000,000, the Holder shall immediately pay the HRA, in cashier's or certified check, $15,000 per each $100,000 or partial $100,000 by which the estimated market value exceeds $2,000,000. Any such agreement shall not affect the provisions of this Agreement or the Assessment Agreement except as expressly provided herein. If the Holder enters into an agreement assuming the obligations of Developer 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 Hotel Site 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 4.3 of this Agreement. In addition to the assignments permitted pursuant to Section 9.1 of the Agreement, if the Holder of a First Mortgage acquires the interest of Developer 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 withheid or delayed. In exercising its judgment as to whether or not to grant such consent, the HRA shall take into account only the financial condition 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, the experience of the proposed assignee shall no longer be a factor considered by.the HRA as to whether or not grant such consent. In addition, the Holder may assign its 20 . . . Resolution 94-9 - Continued EXHIBIT C August 9 t 1994 interest at any time without the consent of the BRA to a-person with a verifiable net worth in excess of $2,200,000. Any such assignee shall agree in writing with the BRA, for itself and its successors and assigns, to be bound by the terms and conditions of the Agreement, the Deed, the Assessment Agreement and the Plan, and not to transfer, mortgage or otherwise convey any portion of the Hotel Site except as permitted in the Agreement. Section 8.4. BRA's ODtion to Cure Default on Mortaage. Any Mortgage executed by Developer with respect to the Development Property, or any improvements thereon, shall provide that, in the event that Developer 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 Developer of a default, shall notify the HRA in writing of: (a) the fact of the default; (b) the elements of the default; and (c) the actions required to cure the default. The HRA shall have the right to cure any such default which occurs prior to issuance of the Certificate of Completion. The BRA shall have a period of 35 days after notice from a Holder to effect a cure, provided that the BRA gives Developer 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 Developer 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 Hotel Site in favor of the HRA, subordinate to the lien of any First Mortgage. Section 8.5. Subordinate Liens. Until the Certificate of Completion has been issued, Developer agrees that it will not create, incur, assume or suffer any security interest, mortgage, pledge, lien, charge, or encumbrance upon the Hotel Site except for a First Mortgage permitted under this Article and except for the Permitted Encumbrances. Developer 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 Developer first posts a bond or provides other security to the BRA or to the Holder, or to an agent of the Holder, including, without limitation, a title insurance company, which the HRA reasonably determines is adequate to protect the interest of the BRA. 21 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 ARTICLE IX Restrictions on Transfer: Indemnification Section 9.1. Restrictions on Transfer. Until the Certificate of Completion has been issued by the BRA, this Agreement and Developer's interest in the Hotel Site (or any part thereof) may not be sold, transferred or assigned by Developer without the prior written consent of the BRA, 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 December 31, 2008, this Agreement and Developer's interest in the Hotel Site (or any part thereof) may be sold, transferred or assigned by Developer, provided that the purchaser, as of the date of such transfer, is reasonably determined by the BRA to be of sufficient financial condition, experience, and reputation to perform fully under this Agreement and the Assessment Agreement, and the purchaser first 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 sell, transfer, mortgage or otherwise assign any portion of the Hotel Site except as permitted herein. In such event, Developer 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 December 31, 2008, this Agreement and Developer'S interest in the Hotel Site (or any part thereof) may be sold, transferred or conveyed by Developer free of the foregoing conditions, but, in such event, Developer shall remain primarily liable for performance of the terms and conditions of this Agreement and the Assessment Agreement. The foregoing notwithstanding, MEPC may at any time sell, transfer or assign this Agreement and all of its interest in the Hotel Site (but not part) to a Minnesota general or limited partnership in which Torgerson Properties, Inc. is a general partner, provided the purchaser first agrees with the HRA, in an instrument acceptable to the HRA, for itself and its successors and assigns, to be bound by and perform fully the terms and conditions of this Agreement, the Deed, the Assessment Agreement and the Plan, and not to sell, transfer, mortgage or otherwise assign any portion of the Hotel Site except as permitted herein. In such event, MEPC shall be released from any obligation or liability hereunder. MEPC may exercise its rights to assign under this paragraph only if there is no Event of Default by MEPC then existing. 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. 22 Resolution 94-9 - Continued .EXHIBIT C August 9, 1994 . section 9.2. Indemnification. Developer hereby agrees to indemnify, defend and hold harmless the HRA, and its officials, 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 Developer, its employees and agents, in connection with the Hotel Project, except to the extent of any bad faith or intentional misconduct by the HRA or other person seeking indemnification. This provision shall continue indefinitely after the termination of this Agreement. 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, anyone or more of the following events: (a) Failure by Developer to pay the Purchase Price and otherwise perform on the Closing Date. . (b) After the Closing Date and until December 31, 2008, failure by Developer 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 Developer to commence and complete construction of the Improvements pursuant to the terms, conditions and limitations of Article IV of this Agreement. (d) Until December 31, 2008, failure by Developer 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 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 trustee of all or a portion of Developer'S property, or an assignment by Developer for the benefit of creditors. . (f) Until the Certificate of Completion has been issued, filing against Developer 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 ora portion of Developer'S properties, if such proceeding is not dismissed within 90 days after commencement thereof. 23 Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . (g) Until the Certificate of Completion has been issued, commencement by the Holder of any First Mortgage of foreclosure in the event of a default in any of the terms or conditions of the First Mortgage. (h) Until the Certificate of Completion has been issued, any merger, consolidation, liquidation, reorganization or transfer of all or substantially all of Developer's assets. . 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 60 days' written notice which sets forth the nature of the default to Developer 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 60 days or, if such an Event of Default cannot be cured within 60 days, Developer does not provide assurances to the HRA 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) : (a) The HRA may suspend its performance under the Agreement until it receives assurances from Developer, deemed adequate by the HRA, that Developer 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 Hotel Site, revest title to the Hotel Site in the HRA, and exclude Developer from possession of the Hotel Site. The HRA shall thereupon use its best efforts and act in good faith to sell the Hotel Project at the best price obtainable (provided such sale is permitted by applicable law) and as soon as reasonably possible, such sale to be on such terms and conditions as the HRA deems reasonable 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 (less any amount received by the HRA from any security provided by Developer) including but not limited to taxes, assessments, utility charges, payments made to discharge any encumbrances or liens, reasonable attorneys' fees and expenses; second to the Holder of a First Mortgage to the extent of the unpaid mortgage; third to reimburse Developer in an amount equal to the Purchase Price plus other reasonable acquisition and construction costs incurred by Developer in connection with 24 Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . the Hotel Project including.architects' and engineers' expenses; 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 Developer or under any security provided by Developer. (e) Sue for damages, including de~inquent taxes levied against the Hotel Site, provided that any damages shall be reduced to the extent of any amount recovered by the HRA under any security provided by Developer. 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 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 Imolied 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 Emolovrnent Oooortunity. Developer agrees that during the construction 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, age, national origin, or political affiliation. Section 11.2. Not for Soeculation. Developer's purchase of the Hotel Site, and its undertakings pursuant to this Agreement, are and will be used for the sole and express purpose of redevelopment of the Hotel Site 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 25 . . . Resolution 94-9 - Continued EXHIBIT C August 9t 1994 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 MEPC, is addressed to or delivered personally to MEPC at 1550 Utica Avenue South, Suite 120, Minneapolis, Minnesota 55416, with copies to David C. Sellergren, Doherty, Rumble & Butler, 3500 Fifth Street Towers, 150 South Fifth Street, Minneapolis, Minnesota 55402; and (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 Gold~n Valley Road, Golden Valley, Minnesota 55428, Attention: Director, with copies to Allen D. Barnard, Best & Flanagan, 4000 First Bank Place, 601 Second Avenue South, Minneapolis, Minnesota 55402-4331. or at such other address with respect to either such Party as that Party may, from time to time, designate in writing and forward to the other as provided in this Section. Section 11.5. Counteroarts. 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. Section 11.7. Interoretation and Amendment. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. This Agreement constitutes the entire agreement of the Parties on the subject matter hereof, superseding any prior oral or written agreements. This Agreement can be modified only bya writing signed by both Parties. Section 11.8. Severability. 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 December 31, 2008. This Agreement shall survive the Closing Date and the HRA's delivery of any Deed to Developer. Section 11.10. Bindinq Effect. Subject to the provisions of Article IX, this Agreement is binding upon, and shall inure to 26 Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . the benefit of, the successors and permitted 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. Section 11.12. Certificates. Upon reasonable request from time to time, the BRA shall execute and deliver written certificates to parties designated by Developer concerning whether the Agreement is in effect, whether any defaults exist under the Agreement and other similar matters. ARTICLE XII Termination of Agreement Section 12.1. Develooer's Ootions to Terminate. This Agreement may be terminated by Developer by written notice to the BRA if Developer is in compliance with all material terms of this Agreement and no Event of Default by Developer is then existing; and . (a) Subject to Section 7.2, the HRA fails to comply with any material term of this Agreement, and, after written notice by Developer of such failure, the BRA has failed to cure such non-compliance within 60 days of receipt of such notice, or, if such non-compliance cannot reasonably be cured by the BRA within 60 days, the HRA has not, within 60 days of receipt of such notice, provided assurances, reasonably satisfactory to Developer, that such non-compliance will be cured as soon as reasonably possible; (b) Closing has not occurred by December 31, 1994, unless extended by the Parties; (c) If Developer's title objections are not waived by Developer or cured by the HRA pursuant to Section 3.1; (d Subject to Section 3.2, if Developer reasonably determines by October 15, 1994 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; . (e) Subject to Section 2.2(g), if Developer 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; (f) If the present fee owner of the Adjacent Parcel refuses or becomes unable to complete the sale of the Adjacent Parcel despite the best efforts of Developer; or 27 Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . (g) If Torgerson Properties, Inc. refuses or becomes unable to complete the purchase of the Hotel Site despite the best efforts of Developer. 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, Developer, in lieu of terminating this Agreement, may pay such amount on behalf of the HRA and reduce the Purchase Price. Section 12.2. Effect of Termination. Except as provided in Sections 4.5 and 9.2, 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 Developer to institute any action, claim or demand for damages suffered as a result of breach or default of the terms of this Agreement by the HRA. 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 MEPC has caused this Agreement to be duly executed in its name and behalf, on or as the date first above written. . THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By. \').....^'~.c-t A. ~~..ba- Its C.~ MEPC /~/ E.R CAN.. /1'RJP7) S, INC. ~ft~ Its ~~4 1lLi1 ~~dd '. By By ~/~~ Its /)/~ RwJ1~.J- U O~~,J~ . . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 STATE OF MINNESOTA SS. COUNTY OF HENNEPIN the foregoing instrument was acknowledged before me this ~ day of ~Ut1u'''T , 1994, by ~. d ~. TltttMJJih_ I tiIC _ c;._.,. of THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY, on behalf of the organization. Notary STATE OF TEXAS I.~~=I. My CommlsslCJrI t.. ,., 16. 1995 .~. './oI\I\^/Vw SS. COUNTY OF DALLAS The foregoing instrument was acknowledgeq before d~ of Au~ust , 1994, by vt"Jnn fYl.. b!:l(etf o1e U,'c.€'P e.sl'dJeftt of MEPC AMERICAN PROPERTIES, INC., corporation, on behalf of the corporation. me this 8th I a _ a Delaware CAROL L. WHITENER NOTARY PUBLIC STATE OF TEXAS My Comm. Exp. 3-18-96 c:- -: ~~ Notary Public STATE OF TEXAS SS. COUNTY OF DALLAS T~~ foregoing instrument w~~cknodledged ~efore ~Jf ~' 1994, by ,c...hClf" A. li)e..( We\') LV of MEPC AMERICAN PROPERTIES, INC., corporatio , on behalf of the corporation. me this B~ , a _ a Delaware ~~ ~-:5~~ --.-. ~.. Notary Public .~~.~~'~ CAROL !... '/\ H!iEN ER -~'11 ..,.. -1/;/ _' ~ NOTARY PUBLIC t~&...P STATE OF TEXAS ~ ,,~ My Comm. Exp. 3-13-96 gOllOo-~~ Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . EXHIBIT A ADJACENT PARCEL LEGAL DESCRIPTION That part of Govern~ent Lot 3, Section 4, Township 117, North Range 21, West of the 5th Principal Meridian, described as follows: Commencing at the point of intersection of the North line of Superior Boulevard, now the Wayzata Boulevard, as the same was originally laid out, with a line parallel with and distant 190 feet, measured at right angles Northwesterly from the most Southeaste~ly main track center line of the Minneapolis, Northfield and Southern Railway, as the same is now located and established over and across said Government Lot 3, said last described parallel line being hereinafter referred to as line HAH in this description; thence West along the North line of said boulevard 85 feet; thence at right angles North 312.33 feet; thence East parallel with the South line of said Government Lot 3, 234.89 feet, more or less to above mentioned line "A"; thence Southwesterly along said line "A" 346.25 feet more or less to the point of beginning. . ALSO that part of Government Lot 3, Section 4, Township 117, Range 21, described as follows: Commencing at t~ point of intersection of the North line of Superior Boulevard now the Wayzata Boulevard as the same was originally laid out with a line parallel with and distant 190 feet measured at right angles Northwesterly from the most Southeasterly main track center line of the Minneapolis, Northfield and Southern Railway, as the same is now located and established across said Government Lot 3; thence West along the North line of said boulevard 85 feet to the actual point of beginning of the tract of land to be described; thence continuing West along the North line of said boule- vard 10 feet; thence Northerly on a line perpendicular to said North line of said boulevard 312.33 feet more or less; thence Easterly on a line parallel to said North line of said boulevard 10 feet to the Northwest corner of the tract of land described in that certain Quit Claim Deed dated Dec. 9~ 1953, which Quit Claim Deed was filed for record in the office of the Register of Deeds of Hennepin County, Minnesota, on Dec. 23, 1953 at 3:25 P.M. in Book 1985 of Deeds at page 390 as Doc. No. 2852739; thence Southerly on a line perpendicular to said North line of said boulevard 312.33 feet more or less to the actual point of beginning; which said perpendicular line is the West line of the tract of land described in the aforementioned Quit Claim Deed dated Dec. 9, 1953. Subject to and together with an easement for driveway purposes, over the West 8 feet of t~e tract last above described and over the East 8 feet of the tract of land immediately adjacent to and parallel with the West line of the tract last above described, as contained in that certain Joint Driveway Easement dated August 20, 1973, and filed for record on August 21, 1973, as Document No. 4037138. . . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 DEVELOPMENT PROPERTY LEGAL DESCRIPTION That part of Government Lot 3, Section 4>> Township 117 North>> Range 21 West of the 5th Principal Meridian>> described as follows: Commencing at the Point of intersection of the North line of Superior Boulevard>> now the Wayzata Boulevard, as the same was originally laid out, with a line parallel with and distant 190 feet, measured at right angles Northwesterly from the most Southeasterly main track center Line of the Minneapolis, Northfield and Southern Railway, as the same is now located and established over and across said Government Lot 3, said last described parallel line being hereinafter referred to as line "A" in this description; thence West along the North line of said boulevard 95 feet; thence at right angles North 312.33 feet to a point hereinafter referred to as point "A"; thence East parallel with the South line of said Government Lot 3>> 244.89 feet>> more or less>> to above mentioned line "A"; thence Southwesterly along said line "A" 346.25 feet more or less>> to the point of beginning. And That part of the following described property: Lot 1, Block 1>> GOLDEN HILLS WEST ADDITION>> according to the recorded plat thereof>> Hennepin County, Minnesota. And That part of Government Lot 3>> Section 4>> Township 117, Range 21~ Hennepin County>> Minnesota, lying northerly of Wayzata Boulevard and lying between the west line of said Lot 1, Block 1, GOLDEN HILLS WEST ADDITION and said line "A" described above. lyin9 southerly of a line described as beginning at said point "A" described above; thence east parallel with said south line of Govern~ent Lot 3 a distance of 410.88 feet to the east line of said Lot 1, Block 1, GOLDEN HILLS WEST ADDITION and said line there terminating. Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . BXH:IB:IT 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 et~. (the "HRA") , and (the "Developer"), hereby covenant and agree that the property described in Exhibit B-1 hereto (the "Hotel Site") and the improvements to be made thereto pursuant to the MEPC Private Development Agreement between the parties dated as of , 1994, with respect to which any real estate taxes, or taxes in lieu thereof which are levied or assessed and payable by the Developer, shall be assessed to be of a market value of no less than $1,600,000 on January 2, 1996, and January 2 of every year thereafter that this Assessment Agreement is in effect (for taxes payable in 1997 and subsequent years)", increased in 1996 and subsequent years by the amount of $19,277 for each hotel unit in excess of 83 units, and decreased in 1996 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 of the Private Development Agreement, and by the Developer's cost for any portion of the unimproved Hotel Site taken in condemnation or by the power of eminent domain (the "Assessor's Minimum Market Value"). . . Commencing with taxes payable in the year 1997 and thereafter during the term of this Restated Assessment Agreement, the Developer shall not seek a reduction of the market value of the Hotel Site 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 Hotel Site, 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 Hotel Site 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 office of the Hennepin County Registrar of Titles upon transfer of title of a portion of the Hotel Site from the HRA to the Developer. 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 Hotel Site B-1 . . . Resolution 94-9 - Continued EXHIBIT C August 99 1994 to be covenants and restrictions running with the land, and shall constitute burdens and benefits to the HRA and the Developer, their successors, assigns, grantees and all other parties hereafter owning or holding any interest in the Hotel Site or any portions thereof. This Assessment Agreement is effective as of the date hereof and shall remain in force and effect until December 31, 2008. IN WITNESS WHEREOF, the parties have caused the execution of this Assessment Agreement as of this day of 1994. THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By Its By Its By Its STATE OF MINNESOTA ) ) SSe COUNTY OF HENNEPIN ) The foregoing day of instrument was acknowledged before me this , 1994, 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 B-2 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 STATE OF MINNESOTA COUNTY OF HENNEPIN SS. The foregoing instrument was acknowledged before me this day of , 1994, by , a of on behalf of the organization. , a Notary Public DRAFTED BY: Best & Flanagan 4000 First Bank Building 601 Second Avenue South Minneapolis, Minnesota 55402-4331 B-3 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 BDIBIT B-1 LEGAL DESCRIPTION Leqal Descriotion (to be supplied) B-4 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 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 Hotel site described in the foregoing Exhibit B-1. 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 Hotel Site by pursuant to the Private Development Agreement; S. He has reviewed the market value previously assigned to the Hotel Site upon which such improvements are to be constructed; and 6. The undersigned assessor, being legally responsible for the assessment of the above described Hotel Site 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 $1,600,000 on January 2, 1996, and January 2 of every year thereafter (for taxes payable in 1997 and subsequent years), increased in 1996 and subsequent years by $19,277 for each hotel until in excess of 83 units, and decreased in 1996 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, and by the cost for any unimproved portion of the Hotel Site taken in condemnation or by the power of eminent domain. Dated , 1994. Director of Property Taxation Hennepin County, Minnesota B-S Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . EXHXBXT B-3 Minnesota Statutes. Section 469.177. Subd. 8 (1992) . 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 to 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 be a reasonable estimate, 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 imprqvements 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 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 B-6 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 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, whether voluntary or involuntary, and shall be binding upon them. B-7 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 BXH:IB:IT C CERTIFICATE OF COMPLETION THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY, a public body corporate (the "BRA"), and MEPC AMERICAN PROPERTIES, INC., a Delaware corporation ("Developer"), previously entered into the MEPC 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 Document Number , for the following described property: The Agreement contains certain covenants which, if not performed by Developer, or its successors and assigns, would" result in a forfeiture and right of re-entry by the BRA, its successors and assigns. As of the date hereof, Developer has performed all of such covenants contained in the Agreement to the satisfaction of the HRA, including the covenants in Article IV of the Agreement requiring completion of the construction of the improvements. NOW, THEREFORE, it is hereby certified that all of the covenants in the Agreement, including the covenants in Article IV requiring completion of the construction of the improvements, have been duly and fully performed by Developer as of the date hereof and that the provisions for forfeiture of title and right to re-entry by the HRA for breach of such covenants, and the letter of credit securing performance thereof, are hereby released absolutely and forever insofar as they apply to the property described above. 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. This instrument shall be conclusive determination of the satisfactory termination of the covenants of Article IV of the Agreement requiring completion of the construction of the improvements. Notwithstanding the foregoing, the remaining covenants contained in the Agreement remain in full force and effect. C-l . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By Its And Its STATE OF MINNESOTA SS. COUNTY OF HENNEPIN The foregoing _ day of and and in and for the City instrument was acknowledged before me this , 19_, by , respectively the of The Housing and Redevelopment Authority of Golden Valley, on behalf of the Authority. Notary Public THIS INSTRUMENT WAS DRAFTED BY: Best & Flanagan 4000 First Bank Building 601 Second Avenue South Minneapolis, Minnesota 55402-4331 C-2 . . ,!',:; 9 f d ~~; '" Resolut1on '..... ..... .........,:, , ..... :ffi.tB~ .--. --'--'--'--AtrgtTST:'"9',i1994 I ------------, I I I I I I I I I I I I ~ --~-, I I ,....., --+-""1 I --1-"; I --7-1 i _~__....l I l I 1 . -[rl I - rl I --r-: i --t-l I --t-J . I I I I I i '7.....' ~ :'7 .~, : ..... I .....>. I . " I ;l'.~ -..... . ' ,j . '~'~/'",,', I 'I '~, '7 I I ,. >-'"7'"1-- . .' 1 I ''i I . I I I ! I I ''-i~' I 1 " . ,/ I II.. I ., . I" I ,,:,-, V I ....""'. ......... '......... ''''... ........ ",...../; i " "..., /........~ I ,'~ . ..... ..... I ..... ..... I ..... ' ''-.I 94~-.-eont'imre-d-'- -.- f I I I I I I re- I ..... I ( I / ,'" /.......' :\i3.. /'j/ '..... I I , l / i ~<.., ~ , " ..... ..... .....{........... / ..........i !.......... .......... .......... .......... ..... ..... Ul U) 0 =3 )> r t%j rr1 . "tl s: Z tv q I 0: ..... ......~ .....,~.... ~ .......... ..... ..... ..... ..... .......... ..... ..... ..... ..... .......... .......... ..... ..... .......... Holiday Inn Express 83 Unit Hot.1 Project Golden Valley, Minnesota. , -_ '-"I ...... t.... ,. c.- ~..~~:o.,.~::'-:':dt...~ -~'="~;; ~.. ""l' "'.-1:"''' ~hlt.a U""" :.. 'J," 01 ::.<t S~C~.OI"~C , '~ ..... ..... ..... ..... ..... ..... .... IC~NOIDEL. ~HITECTU"E Sui1.. 10' 45 Waehln9to,., Ave E Mutcnlneon. M;""'..ota !':5350 812'687-2483 ~cx a, 2'~87-ts336 w;. R~!,;:...'.. EXHIBIT D Resolution 94-9 - Continued . fCJ------------[j: I I I ~.--- I " I I I I I I I I I I I I I , I , I I I " , I I :0 0: L________________~ . . ::! ::0 (J) -1 .." r- o o ::0 -U ~ , 1994 EXHIBIT C ~ . I I I " i "\ I " I" II '~.H. - r ~ ~~'iJ.:. \: 0 ! ~ B~ ~ \'- I ~ -.J. -::.ut" ~lN ~ 'i, Holiday Inn Express I<O_II:.D,. .u.C::HrT'ECTUIltE ~ ~, ,;,...1.. 101 . 83 UnIt MotAl ~roJ.c:t 45 WO.",".'tt'l.... .-..". E . -0 "'''''.''''''''.Oft. "'""...'a ,'" Golden Valley. Minnesola, :a~.:s:so . 'III"'- SA"-'4S.) r.. .'7\.!U'7_a3.:t.e Resolution 94-9 - Continued EXHIBIT C August ,1994 ~~ :('") '0 z o ." r- o o ::u -u s: z ; . ~/ / l~ $ ~ '\ I I I ; . k ~-t i ; ~ . - KO"NOIan:\. ......c...rn::CTVI'tIt ,', Holiday Inn Express .",tte \0' ~tJ .6 _....."'.,.... ........ ~ s- ......,........."'. .....fttI'II...t. .. e3 Ur'\lt Hote' Pt'OJeot :l:l3:l0 .. Minnesota. ., ~ 8.'7-2..83 '0 Golden Valley. "0..6' 7\.t'l"7-".338 ~.. Resolution 94-9 - Continued . ''''/ /~, , . ~-4 .::c ~:::o . EXHIBIT C August 9 1994 ;::I o o :::0 ." ~ z G ~ ~ " 'J Holiday Inn Express KOl'tHO'C":1. ARC"lTltCTU"C ,( ."",tt. '0' ~ ~- 4& . *0......0'." ..... .. ~ Cl 83 UI\It Mot.' Pr-oJ.ct I ""...'onl..,j...... ...."''''_oto ~~=~o ';tJ Golden Valley. Minnesota. ."'087-2."3 ~.. I "0. 81"''''.7-''338 Resolution 94-9 - Continued . .....- :: 0 " " " " " " :: u ::- I " " u ,,-- " " " " , , , , , , , ~~__Iii: ,I. I i ~ - II ~ I i-- ~ = i i I~= ! =:1- I I '== I~ :== InJ 1~ 1&1 II-- , 'I- ,. , ~, " " " " " . I flI m 11 . _O~I "r--nIL ~ 10, :: ,-----'100 ~-- I5J.Z'. " -'lIlflr ~) , ~ : : L...-IJL 1=7' 0 i ~ "" l1 1-1" 1 :: III '1U-1 i - " 0 I " ~ H I mLJ 1111 i = : : , I t:9'I lur ---= " :: II I == :: -11Hf[lg :: li= !! I HHDRI~ :: :1' 11= " i i::::. :: !- R IIH !1~1-1 ~ 11!' I ~ :: 1"=lIIREi ~ :: ~ I i != ':~'Fl:R f11H1H'n H il-h ~Q- ., t ,_- :::" ! " :; :llf[ i I IrEI " :: rw IH fir '- ~~;: E!L.l. ~ i~!: F IH Ilr ;- J'TI" !2::! I i ~ii 1.3111R !I~ = ~:: Iii I ! == " 1;,:-1lfR !m- i ~ ii' 7--- :: Iii i ;:;; "il '7' == - . ,I' ~. dij~ "\. ~ o ~ ~1r. o ~ EXHIBIT C .....- :: .'\. u._ ,,', I , I ~ :: ~;I' ~- " , ii H InH ii~ I~ ji, =i ilFl :1lI-1 ~ ii ;': I ~ ;~ .11 r- !'R ,IIH 1:: ,'=-1\ : ~-l :riH 1m- 1=-11 ::, I 1-: i1 ::: l~ :, I~:=;:~I= \ lDJEDJw::J "-". ,X :ID~~i~ i: ! 1= i1 'rirr'E;m !~ "UD_ '1~r 1== :: == :: In"ll8:m ,=- :: IL(l iur i-= ::! t t::: ::: 1_ !! In =rtnRJil:: I =: :: '::: I : 1-=:_ :: I 11!I"'..1 IIJ I =- :: -, 11~r1 111),1 _ ;; " ! ; r=,:... :: =r Im!:m ,i- I~ " AIUII il1t I I i-- " ,I, . I, ,..;- i . I , ::: -rm-r im. i " lItH Iflr I fJ,-- - i : I i!!i i 0 UE1 - - I--: :: :,!;,l-+- i I == ~ 11'li,! _ '"~:::;[ i InCI- 'l1Tl ", , II!I I-- · :: :::--L 1-,-" 1'_ ~~:: :: i I~: I~ J'TI: . : ~ ! '01 HI 1- r- "" __.:i_ ,JJr' ::::::;i ~! '.' I - !~: '""'I ", ---1_ i -=-.. 0:: " 17 ~ Z" , :' 6t 1 \ · " r 1-'::' ,~ - ~ ~ ~ Holiday Inn Express 83 U"tt ...... "'-Jeot Golden Valley, Minnesota. ---- _rTEe'nntI: Sutt. 10'1 45 w....tn.t:o" "'..... C HI.rto...".O". """,,"_.oto O~3eo e'~&.'-2""e3 ~o. e'Z'S.?-e~3e August 9, 1994 IOI} j ~, l-\ o ,- b iiii;;iii~iji ~ IJIIIiI:11clr ! i~ JPilll!J;~ J I 5~ j ~ : i lil R lution 94-9 - Continued EXHIBIT C August 9, 1994 " " " " " --0 '"'-- --0 " ,> ,> " " _::0 . .::0 " "-4 ':::1 " ~ " ~ " " " I, ~ == " " " fTl " U) " -4 " -4 I , fTl , fTl , ~ r- , I ~ , , , ::! , ::! " 0 " 0 " z " Z L>-- . .U) ,0 ,C -4 :J: fTl r- ~ '-4 5 z . =;.,.~,..,. ........ IIpUlilfPI ~ :JI;UI~ipf ~ q ji]]II~:]; ~ j n,] g i iii " " " " " " " " " " " " " " " " " " " " " " " 'L. ,.., " " " " " " :1. - " " " ~- " " " " " " " " " " " " " .~ ~ Holiday Inn Express I(~__IEL. _HITItC'TUlIa: ~ Swite 101 mru ~~ 4& WOetllnoton ...ve E . IS3 U,,~ H~I Project Hutchlneon. Ml"'n..oto ~tl 5:5.350 Golden Valley, Minnesota. e'2,e87-24e3 Fait ,., 2'\.!U~'.,.-e33e "~- " ..,-- !ttI1 " ~- o 0-- ,....- " " " " n_ _ " " " " " " " " " " " " " " " " " ,~- ,', " " " " " " " " " " " " " .... " " " " " U-- " " " 'I 'L._ " ., " " " " ~~ .. " " " " " " " " " " " " " " " " " " " " " ,~- " lJ-. - .r-' 1""\._- " " Resolution 94-9 - Continued . EXHIBIT C ,! I!! Augus 9, 1994 . ~:::o .0 ~o ~..." "'0 s: Z I') ClI ]:- c: en Ii; - (;'.::I ...:l ......} ..;.. . , f- L.-..:=. IIIID Holiday Inn Express ICON<<IIEIKL. -"HrrE01VIU: 2 I @ ~ ~ Suit.. 10' ~i e:s Unit Hotel Project 45 Wae!"th'''vton Ave E Hu'tcnlneon, Mln"..oto !:l!:l3!:lO Golden Valley, Minnesota. 8' 2,e.S7-2483 ~aM 6~2'&87-S336 - Continued 1994 ...... '- ~ ...... ......t... " "...... '" I' ...... i 1.. ~'t. ~""rQ. (fJ .,.. I:%J ...... 80i ...... ,,~ ~I~ VI ...... () "'C ...... zF . $s: \11'\11 )> l> r- ...... 4 r :> ...... Ii>~ ~ .' i fT1 Z ...... ...... ~~ ~ ...... ~ :- ...... ...... '" !)l cl ,r- ...... '" h~1 II :l> ...... ~ Z ...... to ...... ~ I\J 0 ~ ...... ~i1 (fJ T I (") ...... ~ l e- o: :l> f~ ...... 'i:l f~ l~ ;r - tF ~~ ~ Z ~ CJ . ~ 1 '" ~~ 1- " t: I c l' - \Il 'll ~ ~ ~ 11 , ~ \ '" ,} '~'!t 11 ~ , ~ .. I ~I:. . 1 f ~ 1 \: LH~ ~ ni!' f ~, ~ KOANOIEBEL. ARC....ITECTURE ~ i I ;;;~ ~~ :10 "Il -.. -.tv -:-:- !) ~- i-O .b w..~..Il::13C::~ ~N HOLIDAY INN EXPRESS 83 UNIT HOTEL PROJECT COI.\)I<\ \.\I.IJ:Y \ll;'\NF.SOTA ~/~.. SUIte to' 1Q4.eeI'S.o"-J ~~I :;,c::'::;:Q'::":":ot!:l ..,~:; '"'..../J ~ ~we ~~ 1 2', "'>R J :~;~ ~ WI~.MNS6~1 "0" 6'2' '"R7--..:,!>.'''' '....t<-eVOo""p kNIsc....-tc-.~ -nO ~"',"""'''11 I...,I~,MN. . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 EXHIBIT B DEMOLITION SPBCIFICATIONS The professional wrecking by a licensed contractor of any building(s)/ structure(s) or manmade object(s). It consists of the removal of all hazardous/toxic waste materials from site to a licensed landfill area (licensed in the disposal of toxic waste materials) prior to demolition work and shall apply to, but not limited to, asbestos, electrical transformer, PCBs and subsurface tank leakage material. All work shall be complete and include the capping or removal of existing utilities, except those to be relocated, and the wrecking and removal of all footings, foundations, floor slabs, subsurface tanks, buried utility lines sized in excess of 6" in" diameter, steps, stoops, private sidewalks, site lighting poles, driveways and provide for a clean compacted (95% Proctor Density) granular type fill in all excavations resulting from demolition. All piping, heating plants, fuel storage tanks, appliances and other debris shall be removed from site to a licensed landfill area. All work shall be performed in conjunction with State, City and/or local ordinances and reasonable restrictions. B-1 Resolution 94-9 - Continued EXHIBIT C August 9, 1994 . Bm:r:B:r:T P L:r:M:r:TED WARRANTY DBED 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 ~ Gg. ("Grantor"), hereby grants, bargains and conveys to , a ("Grantee"), real property in Hennepin County, Minnesota, described as follows (the "Property") : . together with all hereditaments 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 suffered 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 Golden Hills Redevelopment Plan adopted by Grantor in 1984, as amended (the "Plan"), and any covenants, conditions, or restrictions contained in the MEPC Private Development Agreement dated 1994, between Grantor and Grantee or Grantee's assignor (the "Agreement") . Provided: 1. It is understood and agreed that this Deed is subject to the restrictions, reservations and encumbrances of record, if any, all building and zoning laws and ordinances, all other local, state and federal laws and regulations, and the covenants, conditions, restrictions and provisions of the Agreement. It is also understood and agreed that, prior to December 31, 2008, 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 F-1 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 period provided in Section 10.2 of the Agreement, exists prior 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 Agreement; (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 Agreement; (c) Devote the Property to only such uses as are permitted under the Agreement. The parties agree that the covenants contained in this Section shall terminate on December 31, 2008. 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 covenants 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 , 1994. THE HQUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By David A. Thompson Its Chair By William S. JOYnes Its Director F-2 . . . Resolution 94-9 - Continued EXHIBIT C August 9, 1994 STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this ____ day of , 1994, by David A. Thompson 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 4000 First Bank Building 601 Second Avenue South Minneapolis, Minnesota 55402-4331 F-3