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95-09 HRA Resolution Resolution 95-9 November 14, 1995 . Commissioner Tremere introduced the following and moved its adoption: RESOLUTION APPROVING SALE OF CERTAIN REAL PROPERTY IN THE VALLEY SQUARE REDEVELOPMENT AREA (Sherman Associates, Inc.) WHEREAS, the Housing and Redevelopment Authority in and for the. City of Golden Valley (hereinafter "HRA") and the City Council for the City of Golden Valley (hereinafter "City") have approved the Valley Square Redevelopment Plan; and WHEREAS, the Valley Square Redevelopment Plan contemplates the development of office uses in Area A-1; and, WHEREAS, Sherman Associates, Inc., (hereinafter referred to as "Developer") has made a proposal for the construction of a medical office facility of approximately 25,000 sq. ft.; 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 Valley Square Redevelopment Area; and WHEREAS, the HRA has determined the use value of the real property contemplated by the Developer's proposal; and, WHEREAS, pursuant to Minnesota Statutes 9469.029, 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, TtiEREFORE, 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 9469.029; 2. The use of the Subject Property proposed by the Development is reasonably within the overall guidelines of the Valley Square Redevelopment Plan. . . . . Resolution 95-9 - Continued November 14, 1995 $393,439; \ 3. The use value of the Subject Property is hereby established as 4. In consideration of the restrictions on the sale and use of the Subject Property imposed by Minnesota Statute 9469.029 and the restrictions imposed by the Valley Square Redevelopment Plan, sale of the Subject Property to the developer at $3.75 per sq. ft. is appropriate. 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 development agreement and any other necessary documents and close the sale of the Subject Property to the Developer pursuant to the terms and restrictions provided hereby; and 3. The Director of the HRA is hereby authorized and empowered to perform the obligations imposed on the HRA under the private development agreement. 1J~ A. ~o----.. David A. Thompson, Chair ATTEST: Motion for the ad p on of the foregoing resolution was seconded by Commissioner Jo son; and upon a vote taken thereon, the following voted in favor thereof: Johnson, Micks, Thompson and Tremere ; the following was absent: Russell; and the following voted against the same: none, whereupon said resolution was declared duly passed and adopted, signed by the Chair and his signature attested by the Director. . . . Resolution 95-9 - Continued November 14, 1995 EXHIBIT A NOTICE OF PUBLIC HEARING (APPROVAL OF SALE OF CERTAIN REAL PROPERTY TO SHERMAN ASSOCIATES, 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, November 14, 1995, at 5:30 PM and will then and there consider the sale and terms of sale of the tract located at the intersection of Golden Valley Road and Wisconsin Avenue North, Golden Valley, Minnesota, to Sherman Associates, Inc. for redevelopment pursuant to Minnesota Statutes Section 469.029. The legal description is as follows: That part of Lot 1, Block 2, Valley Square 2nd Addition, Hennepin County, Minnesota, lying easterly of the following described line: Commencing at the SE corner of said Lot 1, thence westerly along the south line of said Lot 1 a distance of one hundred twenty-five and thirty- eight one-hundredths feet (125.38') to the point of beginning; thence N 00 05' 01" Wa distance of three hundred twenty-seven feet (327.00'); thence N 89054' 59" E a distance of sixty feet (60.00'); thence N 0005' 01" W to a point of intersection with the north lot line of said Lot 1. The proposal is to construct an office building of approximately 28,000 sq. ft. on this site. All interested parties may appear in person or by counsel and be heard. BY THE HOUSING AND REDEVELOPMENT AUTHORITY /s/ William S. Joynes, HRA Director . . . Resolution 95-9 - Continued November 14, 1995 EXHIBIT B LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY That part of Lot 1, Block 2, VALLEY SQUARE 2ND ADDITION, according to the recorded plat thereof, Hennepin County, Minnesota, lying easterly of the following described line: Commencing at the southeast corner of said Lot 1; thence westerly along the south line of said Lot 1 at distance of 225.38 feet to the point of beginning of the line to be described; thence North 0 degrees 05 minutes 01 seconds West, assumed bearing, parallel with the east line of the Southwest Quarter of the Northeast Quarter of Section 31, Township 118, Range 21, a distance of 327.00 feet; thence North 89 degrees 54 minutes 59 seconds East a distance of 60.00 feet; thence North 0 degrees 05 minutes 01 seconds West a distance of 213.95 feet to the north'line of said Lot 1 and said line there terminating. Resolution 95-9 - Continued EXHIBIT C November 14,1995 . SHERMAN ASSOCIATES. INC. PRIVATE DEVELOPMENT AGREEMENT THIS AGREEMENT, effective as of Noucrnber Iq, 1995, is made and entered into by and between THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY, a public body corporate established and existing under Minnesota Statutes, Section 469.001 et seq., with its principal offices at 7800 Golden Valley Road, Golden Valley, Minnesota 55427 (the "HRA"), and SHERMAN ASSOCIATES, INC., a Minnesota corporation with its principal office located at 125 South 4th Street, #200, Minneapolis, Minnesota 55454 ("Developer"). WHEREAS, the HRAand the City of. Golden Valley (the "City") adopted the Valley Square Redevelopment Plan (the "Plan") in July of 1978, and have since made certain amendments thereto, for the purpose of redeveloping approximately 200 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, Developer has submitted to the HRA a proposal for the development of a medical clinic with approximately 25,000 square feet on a site in the Redevelopment Area legally described in attached Exhibit A (the "Development Property"), plus parking and certain other improvements on an adjacent parcel in the Redevelopment Area legally described in attached Exhibit B (the "Adjacent Parcel"); and WHEREAS, following its completion of all of the improvements (the "Project"), Developer intends to lease the Project to North Memorial Medical Center, a Minnesota nonprofit corporation which owns and operates hospitals, clinics and other health care facilities; and WHEREAS, the HRA, after public hearing, has approved the 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 95-9 - Continued . EXHIBIT C November 14,1995 TABLE OF CONTENTS Article I - Definitions 1.1. Definitions Article II - Reoresentations and Warranti~s 2.1. 2.2. Representations and Warranties by the HRA 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. 3.9. Marketable Title Survey, Replatting and Soil Analysis Real Estate Taxes and Special Assessments Deed Easement Recording Use Condemnation Guaranty . Article IV - Construction of Im~rovements 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 HRA Expenses by Developer Letter of Credit Article V - Assessment Aqreement and Payment of Taxes 5.1. 5.2. Execution of Assessment Agreement Payment of Taxes, Assessments, Etc. Article VI - Insurance 6.1. Insurance Article VII - Undertakinqs of the HRA 7.1. 7.2. 7.3. Sale of Development Property Limitations on Financial Undertakings of the HRA HRA to Maintain Existence . Article VIII - Mortqaqe Financinq 8.1. 8.2. 8.3. Approval of Mortgage Notice of Default; Copy to Mortgagee Mortgagee's Option to Cure Defaults 2 Paqe 4 6 7 8 9 9 9 10 10 10 11 11 11 11 12 13 13 14 14 15 17 18 18 18 19 19 . . . Resolution 95-9 - Continued 8.4. 8 .5. EXHIBIT C November 14,1995 HRA's Option to Cure Default on Mortgage Subordinate Liens Article IX - Restrictions on Transfer: Indemnification 9.1. 9.2. Restrictions on Transfer Indemnification Article X - Events of Default 10.1. 10.2. 10.3. 10.4 . Events of Default Defined Remedies on Default No Remedy Exclusive No Additional Waiver Implied by One Waiver Article XI - Additional 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 Aqreement 12.1. 12.2. Developer's Options to Terminate Effect of Termination Exhibits: A Legal Description of Development Property B Legal Description of Adjacent Parcel C Assessment Agreement C-1 Legal Description C-2 Assessor's Certification C-3 Minnesota Statutes, Section 469.177, Subd. 8 D Certificate of Completion E Development Plans F Limited Warranty Deed G Cross-Parking and Access Easement H Guaranty 3 20 21 21 22 22 23 24 25 25 25 25 25 26 26 26 26 26 26 26 26 26 27 Resolution 95-9 - Continued EXHIBIT C November 14,1995 . ARTICLE I Definitions Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears from the context: IIAdjacent Parcelll means the real property described in Exhibit B of this Agreement. IIAqreementll means this Private Development Agreement by and between The Housing and Redevelopment Authority in and for the City of Golden Valley, Minnesota, and Sherman Associates, Inc., a Minnesota corporation, as the same may be from time to time modified, amended or supplemented. IIAssessment Aqreementll means 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 C. IIAssessor's Minimum Market Valuell 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. . IICertificate of Comoletionll means the certification, in the form of the certificate contained in Exhibit D 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. 'IICitvll means the City of Golden Valley, Minnesota. IIClosinq Datell means the date upon which HRA conveys the Development Property to Developer, which shall be on or after the date the Parties have obtained all necessary consents and approvals required for construction of the Improvements, and which the Parties expect to be on or about May 1, 1996. IICountyll means the County of Hennepin, Minnesota. IIDevelooerll means Sherman Associates, Inc., a Minnesota corporation, and its successors and assigns under this Agreement. . IIDevelooment Plansll means the plans, specifications, drawings, and related documents on all construction work to be performed by Developer on the Development Property and the Adjacent Parcel, including all on-site improvements to be performed, installed or constructed pursuant to this Agreement. Such plans include, for each building or other structure to be constructed on the Development Property, at least the following: (i) site plan; (ii) floor plan for each floor; (iii) elevations 4 Resolution 95-9 - Continued EXHIBIT C November 14,1995 . (all sides) and exterior materials; and (iv) landscape plan. The Development Plans also include the sidewalk along Wisconsin Avenue. The Development Plans are attached as Exhibit E 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 HRA. IIDevelooment Prooertvll means the real property described in Exhibit A of this Agreement. IIEvent of Defaultll means an action by Developer listed in Section 10.1 of this Agreement. "First Mortqaqell means any first priority mortgage which is secured, in whole or in part, by Developer's interest in the Development Property or the Adjacent Parcel, 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. "HRA" means The Housing and Redevelopment Authority in and for the City of Golden Valley. . "Imt>roved Parcelll means the Development Property and the completed Improvements on the Development Property. IIImorovementsll means a medical clinic/office building, containing a minimum of 25,000 square feet, plus parking for a minimum of 125 cars, plus all other improvements, including fixtures and equipment, to be constructed by Developer upon the Development Property pursuant to this Agreement, as such improvements are defined in the Development Plans. The term "Improvements" also includes sidewalk along Wisconsin Avenue, and the paved surface parking, curb cuts, entrances, landscaping and other improvements to be constructed by Developer on the Adjacent Parcel, as such improvements are defined in the Development Plans. "Net proceedsll 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 disbursements of counsel) incurred in the collection of such proceeds. "Parties" means the HRA and Developer. . IIPartvll means either the HRA or Developer. IIPlanll means the Valley Square Redevelopment Plan, adopted by the City and the HRA in July of 1978, and as amended through the date hereof. 5 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 "Pro;ect" means the construction and operation of the Improvements by Developer on the Development Property and the Adjacent Parcel pursuant to the terms of this Agreement. "Purchase Price" means the sum of $3.75 per square foot of the Development Property. "Redevelooment Area" means the approximately 200 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 Project 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 pow~r 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. (c) The HRA 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. 6 Resolution 95-9 - Continued EXHIBIT C November 14,1995 . (d) The Project, as defined and described in this Agreement, is in conformance with the Plan. (e) The HRA is the fee owner of the Development Property and the Adjacent Parcel. 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 Minnesota law and in good standing under the laws of the State. . (b) Developer is not in violation of any prOV1S10ns 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 Development Property and the Adjacent Parcel 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, 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 7 Resolution 95-9 - Continued EXHIBIT C November 14,1995 . 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. The HRA agrees to furnish to Developer, as soon as practicable 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 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. 8 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 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 60 days from and after the date of such objections to cure the same and the HRA hereby undertakes to cure such defects. If such title objections cannot be cured within 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. The Closing Date shall be extended to the extent necessary during the 60-day period. Section 3.2. Survey, Reolattinq 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 Development Property to the nearest hundredth of a square foot, and also showing all easements of record or in use, all roads and encroachments, and any gaps or overlaps. The HRA shall also plat or replat the Development Property where determined necessary by the City for the purpose of simplifying future descriptions and to obviate the need for future references to the Plan. 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 Development Property. The Parties have entered, or promptly will enter, into an Access Agreement permitting Developer to go on the Development Property to perform a reasonably complete structural and environmental soil analysis of the Development Property. 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 Development Property, Developer shall have the option of terminating this Agreement pursuant to Section 12.1(d), provided that any such termination must occur by February 1, 1996. 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 1996. 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, 1996. Section 3.4. Deed. Upon tender to the HRA on the Closing Date of the Purchase Price for the Development Property from Developer, the HRA shall deliver to Developer a limited warranty deed for the Development Property in the form attached as Exhibit E (the "Deed"). The Deed shall be subject to the restrictions, 9 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 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 Development Property in the HRA, subject to the rights of the Holder of a First Mortgage, upon the occurrence of an Event of Default (as defined in Section 10.1 hereof) and expiration of any period to cure such Event of Default provided in Section 10.2 hereof prior to issuance of the Certificate of Completion. The Purchase Price shall be due and payable in full at closing in cash, or by cashier's or certified check. Delivery of the Deed shall not cause termination of any provisions of this Agreement or the Assessment Agreement, except where expressly provided in such agreements. Except as provided in Section 3.1, all costs of the conveyance of the Development Property to 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 actions to encumber title, or fail to take any action necessary to prevent encumbrance of title, between the date hereof and date of delivery of the Deed to Developer by the HRA pursuant to this Section. Section 3.5. Easement. The Parties shall also execute on the Closing Date the Cross-Parking and Access Easement attached as Exhibit G (the "Easement") which shall allow Developer to enter onto the Adjacent Parcel for the purpose of constructing and maintaining the paved surface parking, curb cuts, entrances, landscaping and other improvements to the Adjacent Parcel that are included in the Development Plans. The Easement shall also allow the owners, tenants and invitees of the Development Property to enter on and park on the Adjacent Parcel, and vice versa. Section 3.6. Recordinq. Developer shall cause the title insurance company to promptly file the Agreement, the Deed, the Assessment Agreement and the Easement 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 3.7. Use. From the Closing Date through February 1, 2006, Developer shall devote the Development Property only to use as a medical clinic/office building, as specified in this Agreement, and there shall be no unlawful discrimination in the use of the Development Property 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 Development Property without Developer'S consent, which consent shall not be 10 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 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 3.8. Condemnation. In the event that title to and possession of the Improvements to the Development Property 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 February 1, 2006, 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 s~ch part) upon the Development Property. Section 3.9. Guarantv. On the Closing Date, George E. Sherman shall execute the Guaranty attached as Exhibit H, whereby he shall guarantee all of Developer's obligations under this Agreement, the Assessment Agreement and the Easement until issuance of the Certificate of Completion. ARTICLE IV Construction of Imorovements Section 4.1. Construction of Imorovements. Developer agrees that it will construct the Improvements on the Development Property and the Adjacent Parcel 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 less than the scope and scale of the Improvements as detailed and outlined in the Development Plans. Section 4.2. Commencement and Comoletion of 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 July 1, 1997. 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 and the Adjacent Parcel shall be in substantial conformity with the Development Plans as submitted by Developer and approved by the HRA. 11 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 Upon completion in accordance with the Development Plans of the Improvements to be constructed by Developer on the Adjacent Parcel, and delivery by Developer to the HRA of a certified cost statement from Developer's contractor, plus all necessary lien waivers, Developer shall be entitled to reimbursement from the HRA for the cost of labor and materials actually paid by Developer, subject to a maximum of $68,068. The HRA shall pay Developer such amount at such time as Developer's designation from the HRA as developer of the Adjacent Parcel terminates for any reason, except that there shall be no reimbursement if Developer purchases the Adjacent Parcel from 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 and the Adjacent -Parcel 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 or the Adjacent Parcel 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. (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 the HRA, for Developer to take or perform in order to obtain such Certificate of Completion. 12 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 Section 4.4. Deoosit and Reimbursement of HRA Exoenses. Developer has previously deposited $20,000 with the HRA for the reimbursement of certain out-of-pocket expenses incurred by the HRA in connection with the Project (the "Deposit"). The HRA shall treat the Deposit as a separate account on its books, but the HRA may commingle the Deposit with its other funds for purposes of investment and reinvestment. All interest earned on the Deposit shall accrue to the HRA. In the event the closing of the sale of the Development Property by the HRA to Developer pursuant to this Agreement does not occur by July 1, 1996, 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 paid or incurred by the HRA between June 1, 1995 and July 1, 1996, or, if earlier, the date of termination of this Agreement, subject 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 July 1, 1996, 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 ~225,000, issued by a reputable bank and in a form previously approved by the HRA, which shall secure Developer's obligations under this Agreement. In lieu of a letter of credit, Developer may deliver to the HRA a certificate of deposit in the amount of $225,000, naming the HRA as owner and payee and issued by a reputable bank, provided that interest on the certificate of deposit shall be payable to Developer. Any letter of credit or certificate of deposit provided un~er this Section shall provide for expiration or maturity 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 or maturity of any letter of credit or certificate of deposit provided under this Section, Developer shall provide the HRA with a replacement letter of credit or certificate of deposit, unless the Certificate of Completion has previously been issued. In the event Developer fails to deliver any replacement letter of credit or certificate of deposit, Developer shall be in default hereunder with no opportunity to cure and the HRA may immediately draw upon any letter of credit or cash any certificate of deposit then in effect. 13 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 Any letter of credit or certificate of deposit provided under this Section shall permit the HRA to draw upon it or cash it for the full face amount thereof, 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 or certificates of deposit. Developer's obligation to maintain a letter of credit or certificate of deposit 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 or certificate of deposit 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 or certificate of deposit. ARTICLE V Assessment Aqreement and Payment of Taxes Section 5.1. Execution of Assessment Aqreement. 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 C. 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 $1,500,000 on ' January 2, 1998, and January 2 of every year thereafter until February 1, 2006 (for taxes payable in 1999 and subsequent years), increased in 1998 and subsequent years by the amount of $60.00 for each square foot of net rentable space on the Development Property in excess of 25,000 square feet, and decreased in 1998 and subsequent years by the fair market value of any portion of the Improvements 'on the Development Property 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 Development Property taken in condemnation or by the power of eminent domain. Section 5.2. Payment of Taxes, Assessments, Etc. (a) Following the Closing Date, 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 February 1, 2006 with respect to the Development Property or any part thereof and pursuant to the provisions of the Assessment Agreement. 14 Resolution 95-9 - Continued EXHIBIT C November 14,1995 . {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 February 1, 2006 with respect to the Development Property 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 Development Property 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 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; an " {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,OOO,OOO.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. 15 Resolution 95-9 - Continued EXHIBIT C November 14,1995 . 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 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 February 1, 2006, 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 IIfull insurable replacement valuell 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 Development Property, 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 16 Resolution 95-9 - Continued EXHIBIT C November 14,1995 . 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 HRA's request, Developer shall furnish the HRA 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 Imp~ovements 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 Undertakinqs of the HRA Section 7.1. Sale of Development Prooerty. 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 so that the Improvements may constitute a permitted use under the zoning ordinance of the City. 17 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 Section 7.2. Limitations on Financial Undertakinqs of the HRA. The provisions of Section 7.1 of this Agreement notwithstanding, the HRA 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; and (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 Agreeme~t; 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 HRA covenants and agrees that it shall at all times do or cause to be done all things within its statutory powers necessary to preserve and keep in full force and effect its existence, or to assure the assumption of its obligations under this Agreement by any public body succeeding to its powers. ARTICLE VIII Mortqaqe Financinq Section 8.1. A09roval of Mortqaqe. 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 Development Property or the Adjacent Parcel pursuant to the foreclosure, or conveyance by Developer to the 18 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 Holder in lieu of foreclosure, except upon express assumption of such obligation as provided in Section 8.3, provided that nothing in this Section or in any other section of this Agreement shall be deemed or construed to permit any Holder to devote the Development Property or the Adjacent Parcel or any portion thereof to any use, or to construct any improvement, other than those uses or improvements permitted by this Agreement. Further, any party who obtains any interest in all or any portion of the Development Property or the Adjacent Parcel 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: Co~y to Mortqaqee. Whenever the HRA shall deliver any notice or demand to Developer with 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 such 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. Mortqaqee's Ootion 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 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 Development Property and the Adjacent Parcel. 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 19 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 Section 9.1 of the Agreement or in accordance with the following paragraph. Any Holder who shall properly complete the Improvements relating to the Development Property and the Adjacent Parcel 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 withheld 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 interest at any time without the consent of the HRA to a person with a verifiable net worth in excess of $5,000,000. Any such assignee shall agree in writing with the HRA, for itself and its successors and assigns, to be bound by the terms and conditions of the Agreement, the Deed, the Assessment Agreement, the Easement Agreement and the Plan, and not to transfer, mortgage or otherwise convey any portion of the Development Property or the Adjacent Parcel, except as permitted in the Agreement. Section 8.4. HRA's Ootion to Cure Default on Mortaaae. Any Mortgage executed by Developer with respect to the Development Property or the Adjacent Parcel, 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 HRA shall have a period of 45 days after notice from a Holder to effect a cure, provided that the HRA 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 20 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 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 Bank Minneapolis until such amounts are paid, and such amounts shall result in the creation of a lien on the Development Property in favor of the HRA, s.ubordinate 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 Development Property or the Adjacent Parcel except for a First Mortgage permitted under this Article. 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 HRA or to the Holder, or to an agent of the Holder, including, without limitation, a title insurance company, which the HRA reasonably deter~ines is adequate to protect the interest of the HRA. ARTICLE IX Restrictions on Transfer: Indemnification Section 9.1. Restrictions on Transfer. Until the Certificate of Completion has been issued by the HRA, this Agreement and Developer's interest in the Development Property (or any part thereof) may not be sold, transferred or assigned by Developer without the prior written consent of the HRA, which consent may be granted or withheld by the HRA in its sole discretion. After the Certificate of Completion has been issued by the HRA, but prior to February 1, 2006, this Agreement and Developer's interest in the Development Property (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 HRA 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, the Easement and the Plan, and not to sell, transfer, mortgage or otherwise assign any portion of the Development Property except as permitted herein. After the Certificate of Completion has been issued by the HRA, but prior to February 1, 2006, this Agreement and Developer'S interest in the Development Property (or any part thereof) may be sold, transferred or assigned by Developer to a corporation or other entity controlled by Developer or George E. Sherman, provided the purchaser first agrees in writing with the HRA to be bound by the terms and conditions of this Agreement, the Deed, the Assessment Agreement, the Easement and the Plan, and not to sell, transfer, mortgage or 21 Resolution 95-9 - Continued EXHIBIT C November 14,1995 . otherwise assign any portion of the Development Property except as permitted herein, and provided that Developer or George E. Sherman guarantees the obligations of the assignee under this Agreement, the Assessment Agreement and the Easement pursuant to a form of Guaranty substantially the same as the Guaranty attached as Exhibit H. In the event of a transfer pursuant to this paragraph, Developer shall be released from any obligation or liability hereunder to the extent of the interest purchased except to the extent of any Guaranty executed in connection with the transfer. After the Certificate of Completion has been issued by the HRA, but prior to February 1, 2006, this Agreement and Developer's interest in the Development Property (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, and the Easement. 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 to North Memorial Medical Center or another lessee. . 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 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 February 1, 2006, failure by Developer to timely pay all real property taxes, assessments or other charges assessed with respect to the Development Property. 22 Resolution 95-9 - Continued EXHIBIT C November 14,1995 . (c) Subject to Unavoidable Delays, and extensions agreed to by the Parties, failure by Developer to commence and complete construction of the Improvements on the Development Property and the Adjacent Parcel pursuant to the terms, conditions and limitations of Article IV of this Agreement. (d) Until February 1, 2006, 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 or a portion of Developer's properties, if such proceeding is not dismissed within 90 days after commencement thereof. (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, 23 Resolution 95-9 - Continued EXHIBIT C November 14,1995 . 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 Development Property and the Adjacent Parcel, revest title to the Development Property in the HRA, cancel the Easement Agreement, and exclude Developer from possession of the Development Property and the Adjacent Parcel. The HRA shall thereupon use its best efforts and act in good faith to sell the Development Property 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 the 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 delinquent taxes levied against the Development Property, provided that any damages shall be reduced to the extent of any amount recovered by the HRA under 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. 24 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 Section 10.4. No Additional Waiver Implied bv One Waiver. In the event any agreement contained in this Agreement should be breached by any Party and thereafter waived by any other Party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. ARTICLE XI Additional Provisions Section 11.1. EOllal Em?loyment Oooortunitv. 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 Development Property, and its undertakings pursuant to. this. Agreement, are and will be used for the sole and express purpose of redevelopment of the Development Property and not for speculation in land holdings. Section 11.3. Titles of Articles and Sections. Any titles of the several parts, Articles and Sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 11.4. Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand or other communication under the Agreement by either party to the other shall be sufficiently given or delivered if it is in writing dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally; and, (a) in the case of Developer, is addressed to or delivered personally to Developer at 1525 South 4th Street, #200, Minneapolis, Minnesota 55454, with copies to Lawrence P. Marofsky, 7022 BrooklYn Boulevard, BrooklYn Center, Minnesota 55429; 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 Golden 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. 25 Resolution 95-9 - Continued EXHIBIT C November 14,1995 . 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 by a 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 February 1, 2006. This Agreement shall survive the Closing Date and the HRA's delivery of any Deed to Developer. Section 11.10. of Article IX, this the benefit of, the Parties. Bindinq Effect. Subject to the provisions Agreement is binding upon, and shall inure to successors and permitted assigns of the 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 HRA 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 Aqreement Section 12.1. Develooer's Ootions to Terminate. This Agreement may be terminated by Developer by written notice to the HRA if Developer is in compliance with all material terms of this Agreement and no Event of Default by Developer is then existing; and . 26 Resolution 95-9 - Continued EXHIBIT C November 14,1995 . (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 HRA 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 July 1, 1996, 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 February 1, 1996 that construction of the Improvements is not practicable without material additiona~ cost due to existing soil or groundwater conditions, or due to the presence of hazardous or toxic waste on the Development Property; or . (e) Subject to Section 2.2(g), if 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. 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 4.4 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 t.his 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 Developer has caused this Agreement to be duly executed in its name and behalf, on or as of the date first above written. . 27 . Resolution 95-9 - Continued EXHIBIT C November 14,1995 THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN V LE By b~ Al ~-3h~ By . . Its Chair STATE OF MINNESOTA SS. COUNTY OF HENNEPIN Its SHERMAN ASSOC AT S, INC. Jl;,~ ? -fl ;/ Its I., -(. lc I-- By The foregoing day of jJouo~bM" Chair and Director AUTHORITY IN AND organization. instrument was acknowledged before me this /~ , 1995, by David A. Thompson & Will iam S. Joy~e~ ~ of THE HOUSING AND REDEVELOPMENT FOR THE CITY OF GOLDEN VALLEY, on behalf of the . . JUDITH A. NALLY I . -;N;:O-~~ My ec.ttIIlIIl EIpIrtt.... 81, ZOOO . OTA ) ) SS. COUNTY OF HENNEPIN ) f~regoing instrument was ~cknowl~dged before ay of t'rlllPi'r , 1995, by t'(t?~c t:=. SIIr'/'il1c/J YtJ fA of SHERMAN ASSOCIATES, C., a Minnesota on behalf of the corporation. me this /314 , .eY" '-i ,(,-e.... corporation, . .IUDIIH A. NALLY I -.... ....-. ,...COU1I1Y "0111 1 .10............_ ."'.......... ........,.~VN.;..r_...tt:A~~~.....N. DRAFTED- BY: JvtluX (/ 17ae~ Notary, Public ~/ Best & Flanagan 4000 First Bank Building 601 Second Avenue South Minneapolis, Minnesota 55402-4331 CCB\Golden.Agr\20949 28 . . ;; . Resolution 95-9 - Continued EXHIBIT C November 14,1995 EXHIBIT A LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY That part of Lot 1, Block 2, VALLEY SQUARE 2ND ADDITION, according to the recorded plat thereof, Hennepin County, Minnesota, lying easterly of the fOllowing described line: Commencing at the southeast corner of said Lot 1; thence westerly along the south line of said Lot 1 at distance of 225.38 feet to the point of beginning of the line to be described; thence North 0 degrees 05 minutes 01 seconds West, assumed bearing, parallel with the east line of the Southwest Quarter of the Northeast Quarter of Section 31, Township 118, Range 21, a distance of 327.00 feet; thence North 89 degrees 54 minutes 59 seconds East a distance of 60.00 feet; thence North 0 degrees 05 minutes 01 seconds West a distance of 213.95 feet to the north line of said Lot 1 and said line there terminating. A-1 . . - -- . Resolution 95-9 - Continued EXHIBIT C November 14,1995 EXHIBIT B LEGAL DESCRIPTION OF ADJ~CE~ PARCEL All of Lot 1, Block 2, VALLEY SQUARE 2ND ADDITION, according to the recorded plat thereof, Hennepin County, Minnesota, excluding that portion described in Exhibit A to this Private Development Agreement. B-1 Resolution 95-9 - Continued EXHIBIT C November 14,1995 . EmIBIT C 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 sea. (the "HRA") , and Sherman Associates, Inc. (the "Developer"), hereby covenant and agree that the property described in Exhibit C-1 hereto (the "Development Property") and the improvements to be made thereto pursuant to the Sherman Associates, Inc. Private Development Agreement between the parties dated as of , 1995, 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 $1,500,000 on January 2, 1998, and January 2 of every year thereafter that this Assessment Agreement is in effect (for taxes payable in 1999 and subsequent years), increased in 1998 and subsequent years by the amount of $60.00 for each square foot of net rentable space in excess of 25,000 square feet, and decreased in 1998 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 Development Property taken in condemnation or by the power of eminent domain (the "Assessor's Minimum Market Value") . Commencing with taxes payable in the year 1999 and thereafter during the term of this Restated Assessment Agreement, the Developer shall not seek a reduction of the market value of the Development Property for property tax purposes below the Assessor's Minimum Market Value stated above, regardless of actual market values which may result from incomplete construction of improvements to the Development Property, or from destruction or diminution thereof by any cause, insured or uninsured, except in the case of acquisition or reacquisition of any portion of the Development Property by a public entity. Upon execution by the parties, this Assessment Agreement shall be presented to the Hennepin County Assessor, or to the Golden Valley City Assessor having the powers of the County Assessor, if any, pursuant to Minnesota Statutes, Section 469.177, Subd. 8, as hereafter amended (the "Statute"). If this Assessment Agreement is approved and certified by such Assessor in the form of attached Exhibit C-2, this Assessment Agreement shall be filed 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 Development Property from the HRA to the Developer. . The parties hereby covenant and agree that the obligations imposed hereunder shall be the personal obligations of the C-1 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 parties and shall also be deemed with respect to the Development Property to be covenants and restrictions running with the land, and shall constitute burdens and benefits to the HRA and the Developer, their successors, assigns, grantees and all other parties hereafter owning or holding any interest in the Development Property or any portions thereof. This Assessment Agreement is effective as of the date hereof and shall remain in force and effect until February 1, 2006. IN WITNESS WHEREOF, the parties have caused the execution of this Assessment Agreement as of this day of 1995. THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By Its By Its SHERMAN ASSOCIATES, INC. By Its STATE OF MINNESOTA SSe COUNTY OF HENNEPIN The foregoing day of instrument was acknowledged before me this , 1995, 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 C-2 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 STATE OF MINNESOTA SSe COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this day of , 1995, by , a of Sherman Associates, Inc., a Minnesota corporation, on behalf of the organization. Notary Public DRAFTED BY: Best & Flanagan 4000 First Bank Building 601 Second Avenue South Minneapolis, Minnesota 55402-4331 C-3 . . . Resolution 95-9 EXHIBIT C November 14, 1995 EXHIBIT C-l LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY That part of Lot 1, Block 2, VALLEY SQUARE 2ND ADDITION, according to the recorded plat thereof, Hennepin County, Minnesota, lying easterly of the following described line: Commencing at the southeast corner of said Lot 1; thence westerly along the south line of said Lot 1 at distance of 225.38 feet to the point of beginning of the line to be described; thence North 0 degrees 05 minutes 01 seconds West, assumed bearing, parallel with the east line of the Southwest Quarter of the Northeast Quarter of Section 31, Township 118, Range 21, a distance of 327.00 feet; thence North 89 degrees 54 minutes 59 seconds East a distance of 60.00 feet; thence North 0 degrees 05 minutes 01 seconds West a distance of 213.95 feet to the north line of said Lot 1 and said line there terminating. C-4 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 EXHIBIT C-2 ASSESSOR'S CERTIFICATION The undersigned, being the duly qualified and acting Director of Property Taxation of Hennepin County, Minnesota, hereby certifies that: 1. He is the assessor responsible for the assessment of the Development Property described in the foregoing Exhibit C-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 Development Property by Sherman Associates, Inc. pursuant to the Private Development Agreement; He has reviewed the market value previously assigned to' the Development Property upon which such improvements are to be constructed; and 5. 6. The undersigned assessor, being legally responsible for the assessment of the above described Development Property upon completion of the improvements to be constructed thereon, hereby certifies that the market value assigned to such land and improvements upon completion shall not be less than $1,500,000 on January 2, 1998, and January 2 of every year thereafter {for taxes payable in 1999 and subsequent years), increased in 1998 and subsequent years by $60.00 for each square foot of net rentable space in excess of 25,000 square feet, and decreased in 1998 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 Development Property taken in condemnation or by the power of eminent domain. Dated , 1995. Director of Property Taxation Hennepin County, Minnesota C-5 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 EXHIBIT D CERTIFICATE OF COMPLETION THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY, a public body corporate (the "HRA"), and SHERMAN ASSOCIATES, INC., a Minnesota corporation ("Developer"), previously entered into the Sherman Associates, Inc. Private Development Agreement (the "Agreement"), recorded in the Office of the County Recorder in and for the County of Hennepin and State of Minnesota, as 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 HRA, 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. D-1 . . . Resolution 95-9 - Continued STATE OF MINNESOTA COUNTY OF HENNEPIN The foregoing _ day of and and in and for the City EXHIBIT C November 14,1995 THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By Its And Its SS. 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 D-2 . . . November 14, 1995~ ~ i : ~< ~ : ~ < ~ ~. ~.~ ~ ~~ ~ u~ ~ n ~ C ~-<: _ Resolution 95-9 - Continued EXHIBIT C EXHIBIT E DEVELOPMENT PLAN ) .J \.. .' :mu;'J.\ V UISUO;JS!,\\ ~. \ \ ) ~ E-l ~, ""-. --.......", \ .. , \ ': I I ! ! I: ! I j i \: 'I i ""' ""' :>. ~ :: I.() 0) 0) T""" -.::t T""" L- a> ..c E a> > o Z U l- ID :c >< w "0 a> ::J c: +=- c: o U 0) I I.() 0) c: o +=- ::J (5 en a> e::: . '. +- FUTURE r&V;t;Iii;iIir _c.enoo. fil ~ H I1l H :::r:: :><: fil ....- -.... N I fil Hwy. S5 EIe\'lItion EiSfEleVation 1- West Elevation . 19hway Golden Valle, Developer: She~.."",iate. An:hUec:I: Paul M.doon + A.soclate. . tt:I I W n First Floor Plan I. Main Ilatnnco b. lUllloC'I CI.... b. Lobby I. CGnIdor c. Gl1A4 Sill, J. SIIir d. l!Iev..... k. Seoondtry!!n...... I. 1!Ic,""" !!qui....... Room I. Main...."'" f. l!IeclrictlJPbone Room m. V....... I. R..trooml D. Nelahbori.. Olllce Buifdlnl . ,0 o o o --0 -0 o o o o o o . (' o ----i-~r----T__ .-- ...1._______ Second Floor Plan I. Opea 10 Lobby f. 1..1""" Close' :: =~III' f: ~~ d. __ R.... r. Decl e. Ralroom. J.. Nciahbofina Duildin, o --0 --0 --0 ---0 -0 -0 -0 --0 -0 -0 o o . ;0 CD (J) 0 r::: - ci" ::J CD 01 I CD I () 0 ::J = ::J r::: CD a. tt:I ~ :r: H ll:l m H >< t-3 :c tI:l OJ -I () NOlet: . 12'.0" noor 10 noor hcl,hl/,I'.O" cellin,. . ElIch full IlnJc.uraJ boy ~ 900 1.1. . Window mum.... IIC ~.-O" on cenle' . CorridoR shown 8'-0" wide z o < CD 3 C- CD ...., ~ ~ " ~ CD CD 01 North Memorial Medical Center Highway SS @ W,seonslIl A venue N. Golden Valley, Minnesola Developer: Shennan AssodalcS Ar,-hir...d' Piwl Mikhon t ^,,(.."illln Resolution 95-9 - Continued EXHIBIT C November 14,1995 . EXHIBIT F LIMITED WARRANTY DEED FOR VALUABLE CONSIDERATION, THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY, a public body corporate created pursuant to Minnesota Statutes, Section 469.001 et sea. ("Grantor"), hereby grants, bargains and conveys to Sherman Associates, Inc., a Minnesota corporation ("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 Valley Square Redevelopment Plan adopted by Grantor in 1978, as amended (the "Planll), and any covenants, conditions, or restrictions contained in the Sherman Associates, Inc. private Development Agreement dated , 1995, 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 apy, 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 February 1, 2006, 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 IIEvent of Defaultll by Grantee, as defined in Section 10.1 of the Agreement, which is not cured within the F-1 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 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 February 1, 2006. 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 I 1995. THE HOUSING 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 95-9 - Continued EXHIBIT C November 14,1995 STATE OF MINNESOTA SSe COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this ____ day of , 1995, 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 Resolution 95-9 - Continued EXHIBIT C November 14,1995 . EXHIBIT G CROSS-PARKING AND ACCESS EASEMENT THIS AGREEMENT is made and entered into this _____ day of , 1995, by and between The Housing and Redevelopment Authority in and for the City of Golden Valley, a public body corporate established and existing under Minnesota Statutes, Section 469.001 et sea., with its principal offices at 7800 Golden Valley Road, Golden Valley, Minnesota 55427 (the "HRA"), and Sherman Associates, Inc., a Minnesota corporation, with its principal offices at 1525 South 4th Street, #200, Minneapolis, Minnesota 55454 ("Sherman"). . The HRA, as fee owner of the property legally described on Exhibit A ("Parcell"), hereby grants and conveys to Sherman a nonexclusive easement for access and parking over and across Parcell, as shown on Exhibit B, for the benefit of the property legally described on Exhibit C ("Parcel 2"). In connection with the grant of this easement, the HRA agrees, at its sole cost and expense, to construct, maintain, snowplow and repair the improvements on Parcel 1 shown on Exhibit B for the nonexclusive benefit of Parcel 2; provided, however, that as long as the HRA is the fee owner of Parcell, all of the HRA's obligations to construct, maintain, snowplow and repair the improvements on Parcel 1 shall be assumed and performed by Sherman; Construction of the improvements shall be completed by , 1996. Sherman, as fee owner of Parcel 2, hereby grants and conveys to the HRA a nonexclusive easement for access and parking over and across Parcel 2, as shown on Exhibit D, for the benefit of Parcell. In connection with the grant of this easement, Sherman agrees, at its sole cost and expense, to construct, maintain, snowplow and repair the improvements on Parcel 2 shown on Exhibit D for the nonexclusive benefit of Parcell. Construction of the improvements shall be completed by , 1996. The parties agree that the terms and conditions of this Agreement run with the land and shall be binding upon, and inure to the benefit of, their successors and assigns. IN WITNESS WHEREOF, the parties have caused the execution of this Agreement as of the day and year first above written. HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY . By: Its: G-1 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 SHERMAN ASSOCIATES, INC. By: Its: STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) The foregoing day of instrument was acknowledged before me this , 1995, 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 STATE OF MINNESOTA SS. COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this day of , 1995 , by , a of Sherman Associates, Inc., a Minnesota corporation, on behalf of the organization. Notary Public DRAFTED BY: Best & Flanagan 4000 First Bank Building 601 Second Avenue South Minneapolis, Minnesota 55402-4331 G-2 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 EXHIBIT H GUARANTY FOR VALUABLE CONSIDERATION, and to induce THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY (the "HRA") to extend credit and other accommodations to SHERMAN ASSOCIATES, INC., a Minnesota corporation ("Developer"), GEORGE E. SHERMAN (IIGuarantor"), hereby guarantees to the HRA the full and prompt performance, when due, of all covenants, agreements, and obligations of Developer under the Sherman Associates, Inc. Private Development Agreement dated as , 1995 (the "Development Agreement"), and the Assessment Agreement and Cross- Parking and Access Easement (the "0ther Agreements"), related thereto. . This Guaranty is absolute, unconditional, continuing and irrevocable. This Guaranty is effective upon delivery to the HRA without acceptance by the HRA and without any further act or condition. Guarantor waives notice, demand and opportunity to cure any default by Developer, and any and all defenses, claims and setoffs of Developer. The liability of Guarantor hereunder shall not be affected by any extensions, renewals, modifications, waivers, or releases granted to Developer, or by any other act or thing other than performance in full by Developer under the Development Agreement and the Other Agreements. Guarantor shall payor reimburse the HRA for all costs and expenses (including reasonable attorneys' fees and expenses) incurred by the HRA in enforcement of this Guaranty. Guarantor spall not exercise or enforce any right of paYment, reimbursement or subrogation available to it against Developer during any period in which there is a default under the Development Agreement or the Other Agreements. This Guaranty shall be binding upon Guarantor and its successors and assigns and shall inure to the benefit of the HRA and its successors and assigns. T~is Guaranty may not be waived, modified, terminated or otherwise changed except by a writing signed by the HRA. This Guaranty shall be governed by the laws of the State of Minnesota. This Guaranty shall terminate at such time as the Certificate of Completion has been issued as provided in Section 4.4 of the Development Agreement. IN WITNESS WHEREOF, Guarantor has caused the execution of this Guaranty this day of , 1995. George E. Sherman H-1 . . . Resolution 95-9 - Continued EXHIBIT C November 14,1995 STATE OF MINNESOTA SS. COUNTY OF HENNEPIN On this day of , 1995, , of George E. Sherman, personally appeared before me and acknowledged that he executed the foregoing instrument as his free act and deed. Notary Public 20949 H-2