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95-11 HRA Resolution Resolution 95-11 December 12, 1995 . Commissioner Tremere introduced the following and moved its adoption: RESOLUTION APPROVING SALE OF CERTAIN REAL PROPERTY IN THE VALLEY SQUARE REDEVELOPMENT AREA (Golden Valley Commons, L.L.C.) 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 redevelopment of Area C with a unified mixed use development; and WHEREAS, Golden Valley Commons, L.L.C, a Delaware limited liability company (hereinafter referred to as "Developer") has made a proposal for the construction of retail/restaurant facilities of approximately 47,000 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 as legally described therein (hereinafter the "Subject Property" and has duly held said pubic hearing. NOW, THEREFORE, BE IT RESOLVED, that the HRA does hereby make the following findings and determinations: 1. Proper published notice of the proposed sale of the Subject Property described above has been given and a public hearing has been held thereon, all in accordance with the provisions of Minnesota Statutes 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 95.11 . Continued December 12, 1995 . 3. The use value of the Subject Property is hereby established as $1,357,296; 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 $1,357,296 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 B 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. .~Jll.~ David A. Thompson. Chair ATTEST: Motion for the d ption of the foregoing resolution was seconded by Commissioner . ks; and upon a vote taken thereon, the following voted in favor thereof: Johnson, Micks, Russell, Thompson and Tremere; 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 95-11 - Continued December 12, 1995 EXHIBIT A NOTICE OF PUBLIC HEARING (APPROVAL OF SALE OF CERTAIN REAL PROPERTY TO GOLDEN VALLEY COMMONS LLC 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, December 12, 1995, at 6:30 PM and will then and there consider the sale and terms of sale of the following described tract located in Golden Valley, Minnesota, to Golden Valley Commons LLC for redevelopment pursuant to Minnesota Statutes Section 469.029. The legal description is as follows: . Lot 1, Block 1, Golden Valley Sixth Addition, Hennepin County, Minnesota, according to the recorded plat thereof. The proposal is to construct approximately 47,000 sq. ft. of specialty retail and restaurant facilities on this site. All interested parties may appear in person or by counsel and be heard. BY THE HOUSING AND REDEVELOPMENT AUTHORITY Isl William S. Joynes, HRA Director . . . . Resolution 95-11 - Continued EXHIBIT B December 12,1995 GOLDEN VALLEY COMMONS PR:I:VATE DEVELOPMENT AGREEMENT THIS AGREEMENT, effective as of , 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 sea., with its principal offices at 7800 Golden Valley Road, Golden Valley, Minnesota 55427 (the "HRA"), and GOLDEN VALLEY COMMONS, L.L.C., a Delaware limited liability company with its principal office located at 800 Opus Center, 9900 Bren Road East, Minnetonka, Minnesota 55343 (IIDeveloper"). WHEREAS, the HRA and 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 specialty retail and restaurant project with approximately 47,000 square feet (the "project") on a site in the Redevelopment Area currently described as Lot 1, Block 1, Valley Square Sixth Addition, and to be replatted as Lots 1, 2 and 3, Golden Valley Commons, P.U.D. No. 70 (the "Development Property"); 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 95-11 - Continued EXHIBIT B December 12, 1995 TABLE OF CONTENTS Article I - Definitions 1.1. Definitions Article II - Reoresentations and Warranties 2.1. 2.2. Representations and Warranties by the HRA Representations and Warranties by Develope~ Article III - Title and Other Matters 3.1. 3.2. 3.3 3.4. 3.5 3.6. 3.7. 3.8. 3.9. 3.10 Marketable Title Survey, Replatting and Soil Analysis Waiver by Developer Real Estate Taxes and Special Assessments Easements Deed Recording Use Condemnation Guaranty Article IV - Construction of Imorovements 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 Aareement 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 - Undertakinas of the HRA 7.1. 7.2 7.3. Sale of Development Property Additional Covenants HRA to Maintain Existence Article VIII - Mortaaae Financina 8.1. 8.2. 8.3. 8.4. 8.5. Approval of Mortgage Notice of Default; Copy to Mortgagee Mortgagee's Option to CUre Defaults HRA's Option to Cure Default on Mortgage Subordinate Liens 2 paae 4 7 9 10 11 12 12 12 13 14 14 15 15 15 17 17 18 18 19 20 20 23 23 24 24 24 25 26 26 . . . Resolution 95-11 - Continued EXHIBIT B December 12,1995 Article IX - Restrictions on Transfer: Indemnification 9.1. Restrictions on Transfer 9.2 Transfer of Outlots Article X - Events of Default 10.1. 10.2. 10.3. 10.4 10.4. Events of Default Defined HRA Remedies on Default No Remedy Exclusive Developer's Remedies on Default 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. 11.13 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 Project Announcement Signs/Confidentiality Article XII - Termination of Aqreement 12.1. 12.2. Developer's Options to Terminate Effect of Termination Exhibits: A Assessment Agreement A-1 Legal Description A-2 Assessor's Certification B Certificate of Completion C Preliminary Plans D Demolition Specifications E Permitted Encumbrances F Assignment and Assumption Agreement G Limited Warranty Deed H Guaranty I Assumption Agreement Schedule 2.1(h) 3 27 27 29 30 31 31 31 32 32 3'2 32 33 33 33 33 33 33 33 33 33 34 35 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 ARTICLE I Definitions Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears from the context: "Aareement" means this Private Development Agreement by and between The Housing and Redevelopment Authority in and for the City of Golden Valley, Minnesota, and Golden Valley Commons, LLC, a Delaware limited liability company, as the same may be from time to time modified, amended or supplemented. il Assessment Aareement" 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 A. "Assessor's Minimum Market Value" means the agreed minimum market value for calculation of real estate taxes certified by the Assessor for Hennepin County for the Improved Parcel pursuant to the Assessment Agreement. "Certificate of Comoletion" means the certification, in the form of the certificate contained in Exhibit B attached to and made a part of this Agreement, provided to Developer (or the owner of any Outlot if different from Developer) pursuant to Section 4.4 of this Agreement upon satisfactory completion of the Improvements. "Citv" means the City of Golden Valley, Minnesota. . "Closina Date" means the date upon which the HRA conveys the Development Property to Developer, which shall be on or after the date the Parties have obtained all necessary permits, consents and approvals required for construction of the Improvements. The Parties agree to use good faith and all reasonable efforts so that the Closing Date occurs by March 1, 1996; provided, however, the Closing Date may be extended to May 31, 1996 if all necessary approvals, permits and consents as aforesaid have not been obtained by March 1, 1996, so long as Developer is using good faith and reasonable efforts to procure the same. "Countv" means the County of Hennepin, Minnesota. "Develooer" means Golden Valley Commons, LLC, a Delaware limited liability company, and its successors and assigns under this Agreement. "Develooment Plans" means the plans, specifications, drawings, and related documents on all construction work to be performed by Developer (or the owner of any Outlot if different from Developer) on the Development Property, including all 4 . . . Resolution 95-11 - Continued EXHIBIT B December 12,1995 Improvements to be installed or constructed upon the Development Property pursuant to this Agreement. Such plans shall 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 (all sides) and exterior materials; and (iv) landscape plan. Such plans shall also include the drainage system, drainage pond, sidewalks, roads, parking, outdoor seating and landscaping to be constructed by Developer upon the Development Property. Such plans shall also include the sidewalk to be constructed by Developer on the south side of the U. S. Postal Service (the "Postal Service") parcel immediately to the north of the Development Property. The Development Plans shall comply with all applicable City requirements and other applicable laws and regulations. It is understood that there may be separate Development Plans for each Outlot. "Develooment Prooertv" means the real property currently described as Lot 1, Block 1, Valley Square Sixth Addition, and to be replatted as Lots 1, 2 and 3, Golden Valley Commons, P.U.D. No. 70. "Event of Default" means an action by Developer listed in Section 10.1 of this Agreement. "First Mortqaqe" means any first priority mortgage which is secured, in whole or in part, by Developer's interest in the Development Property, or any portion or parcel thereof, or any Improvements constructed thereon, and which is a permitted encumbrance pursuant to the provisions of Article VIII of this Agreement. "Holder" means the owner of the First Mortgage. "!:mA" means The Housing and Redevelopment Authority in and for the City of Golden Valley. "Hazardous Substances" as used in this Agreement, means pollutants, contaminants, toxic or hazardous waste or any other substances, the removal of which is required or the use of which is restricted, prohibited or penalized by any federal, state or local law or ordinance relating to pollution or the protection of the environment, and includes, without limitation, asbestos and petroleum products. "Imoroved Parcel" means each lot included in the Development Property and the completed Improvements thereon. "Imorovements" means the buildings and improvements, including four separate buildings, containing approximately 47,000 square feet of specialty retail and restaurant space, plus parking for approximately 400 cars, plus all other improvements, including drainage system, drainage pond, roads, outdoor seating, landscaping, fixtures and equipment, to be constructed by Developer upon the Development Property pursuant to this 5 . . . Resolution 95-11 - Continued EXHIBIT B December 12,1995 Agreement, as such improvements are defined in the Development Plans. The "Improvements" also include the sidewalk to be constructed by Developer on the south side of the Postal Service parcel immediately to the north of the Development Property. "Net Proceeds" means any proceeds paid by an insurer to Developer or the Holder of the First Mortgage 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. "Outlots" means those portions of the Development Property to be replatted as Lots 1 and 3, Golden Valley Commons P.U.D. No. 70. "Parties" means the HRA and Developer. "Partv" means either the HRA or Developer. "Plan" means the Valley Square Redevelopment Plan, adopted by the City and the HRA in July of 1978, and as amended through the date hereof. "Preliminarv Plans" means the preliminary development plans submitted by Developer for the Development Property and the Improvements. The Preliminary Plans are attached as Exhibit C and hereby approved, except to the extent of any exceptions noted on the Preliminary Plans for which approval is expressly withheld. "Pro;ect" means the construction and operation of the Improvements by Developer (or the owner of any Outlot if different than Developer) on the Development Property pursuant to the terms of this Agreement. ~'Purchase Price" means the sum of $1,357,296. "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 Financina Act" means the statutes located at Minnesota Statutes, Sections 469.174 through 469.179, inclusive, as amended. "Tax Increment Financina Plan" means the Tax Increment Financing Plan for City of Golden Valley. "Tax Official" means any City or County Assessor; County Auditor; County or State Board of Equalization; the Commissioner 6 Resolution 95-11 - Continued EXHIBIT B December 12,1995 . 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 is a public body corporate duly established under the laws of the State of Minnesota. The HRA has the power to enter into this Agreement and carry out 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 the HRA according to its terms, subject to laws affecting the rights of creditors generally or principles of equity. (b) 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, will result in a breach of the terms, conditions or provisions of any indenture, mortgage, agreement or instrument of whatever nature to which the HRA is now a party or by which it is bound, or will constitute a default under any of the foregoing. There are no legal proceedings pending, or known to be threatened or contemplated, to which the HRA is a party, or to which any property of the HRA is subject, which, if determined adversely, would individually or in the aggregate have a material adverse effect on the HRA's financial position, or prevent or impair the HRA's ability to perform any covenants or obligations under this Agreement. (c) 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. . (d) 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. 7 Resolution 95-11 - Continued EXHIBIT B December 12, 1995 . (e) The Project, as defined and described in this Agreement, is in.conformance with the Plan. . (f) The HRA is the fee owner of the Development Property. (g) All improvements previously on the Development Property have been, or will be prior'to the Closing Date, demolished in accordance with the specifications attached as Exhibit D, at the sole cost and expense of the HRA, and in accordance with applicable laws and regulations. (h) Except for any matter disclosed on attached Schedule 2.1(h), or any matter disclosed in any report identified on attached Schedule 2.1(h), to the best of the HRA's knowledge, (i) the Development Property is not in, or with any applicable notice and/or lapse of time, and/or failure to take certain curative or remedial actions, will not be in, violation of any applicable environmental laws;. (ii) no Hazardous Substances are located on or in the Development Property or groundwater and no above or underground storage tanks exist on the Development Property. The Parties agree that the aggregate liability of the HRA in the event of any breach or breaches of the foregoing representation affecting any of the three separate lots in the Development Property shall not exceed the amount of the Purchase Price for the affected lot. (i) To the best of the HRA's knowledge, as of the date of this Agreement, (i) the Development Property is not subject to any paYment, donation or other obligation required to be made by the owner of the Development Property, other than general real estate taxes, for schools, parks, fire departments or other public facilities; (ii) there are no obligations in connection with the Development Property for any so-called "recapture agreement" involving refund for sewer extensions, oversizing utility, lighting or like expense or charge for work for services done upon or relating to the Development Property; and (iii) there are no unexecuted paving agreements or undertakings with any government agency respecting construction of any acceleration or de-acceleration lane, access or street lighting, except for agreements with the U. S. Postal Service referred to herein. For purposes of this Section 2.1, "to the best of the HRA's knowledgell means to the best of the knowledge of William JOYnes, Mark Grimes and Jeanne Andre of the HRA staff, and no other persons. . 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. 8 Resolution 95-11 - Continued EXHIBIT B December 12,1995 . Section 2.2. Reoresentations and Warranties bv Develooer. Developer represents and warrants that: (a) Developer is a limited liability company organized under Delaware law and in good standing under the laws of Delaware and Minnesota. . (b) Developer is not in violation of any provisions in its organizational or governing documents, 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) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplat~d 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 organizational or governing documents, 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. (d) There are no legal proceedings pending, or, to the best of Developer's knowledge, 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. (e) Developer has previously delivered to the HRA copies of its most recent audited financial statements, prepared in accordance with generally accepted accounting principles; since the date of such statements, there have been no changes in Developer's financial condition which would have a material adverse effect on Developer, or which would prevent or impair Developer's ability to perform any covenants or obligations under this Agreement. (f) Developer has the financial capability to perform all of its obligations under this Agreement. . 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. 9 . . . Resolution 95-11 - Continued EXHIBIT B December 12,1995 ARTICLE III Title and Other Matters Section 3.1. Marketable Title. Developer will obtain at the sole 'cost and expense of the HRA, 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 and any easements appurtenant thereto issued by Chicago Title Insurance Company, in the amount of the purchase price, showing marketable title in the HRA subject only to the laws, ordinances, rights, restrictions and easements set forth on Exhibit E (the "Permitted Encumbrances") . 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, shall include extended coverage, shall insure any easements appurtenant to the Development Property and shall contain endorsements reasonably satisfactory to Developer pertaining to (i) zoning, (ii) contiguity, (iii) access, (iv) the absence of violations of any restrictive covenants or agreements, (v) the identity of the property described in the commitment with the property shown on the survey, (vi) the agreement of the title company to increase the amount of insurance to reflect the value of the Improvements, and (vii) any other endorsement reasonably requested by Developer, 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, including the costs of any extended coverage, endorsements or other agreements by the title insurance company except the cost of any endorsement reasonably requested by Developer to remedy any unpermitted title or survey matter, which shall be paid by the HRA. Developer shall be allowed 30 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 use reasonable efforts to cure such defects within such period, without qualifying the HRA's obligations under Section 3.6. If such title objections cannot be cured within 60 days, or such longer period as is agreed to by Developer and the HRA, 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. At the closing, the HRA shall cause to be delivered a title policy or marked up commitment in accordance with the requirements of this Agreement, and the provisions 10 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 concerning the commitment shall apply with respect to the title policy. Section 3.2. Survey. Reolattinq and Soil Analvsis. The HRA shall provide Developer with a boundary line survey from a registered land surveyor 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 survey shall be certified in favor of Developer and the title company as having been prepared in accordance with the Minimum Standard Detail Requirements for Class A Land Title Surveys jointly established by ALTA/ACSM (as revised in 1992) and meeting the accuracy requirements of a Class A survey, as defined therein, and including all items set forth in Table A thereof, and disclosing the state of facts existing on the date of such certification. The survey shall contain the surveyor's certification that the Development Property is not located within an area that has been designated by the Federal Emergency Management Agency, the Army Corps of Engineers or any. other governmental as having, or being subject to special flood hazards. The cost of obtaining the additional items set forth in the preceding two sentences shall be paid for by Developer. If the survey indicates any encroachments or other title matters which would not constitute Permitted Encumbrances, the HRA shall have a period of 60 days in which to cure such matters or cause the title company to commit to insure against such matters in a manner which is reasonably satisfactory to Developer, and shall use its best efforts to do so (and the HRA shall notify Developer promptly if the HRA determines that the HRA will not be able to do so); and if the HRA shall not cure such matters or cause the title company to commit to insure against such matters in a manner reasonably satisfactory to Developer, Developer shall have the same rights as it would have in the event that the commitment or' title policy were not in-accordance with the requirements of this Agreement. Developer shall, at its expense, complete any additional surveying or platting of the Development Property required by the City in order for Developer to obtain P.U.D. approval. The completion of such surveying and platting by Developer shall be a condition of closing. As soon as practicable after the execution of this Agreement, Developer, at its expense, shall perform a reasonably complete structural and environmental soil analysis of the 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 Substances on the Development Property, or due to any other matter disclosed by the soil analysis, Developer shall have the option of terminating this Agreement pursuant to Section 12.1(d), provided that any such termination must occur by the date that is 90 days after the date that this Agreement has been approved by the HRA at a public meeting. 11 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 Section 3.3. Waiver Bv Develooer. Except as provided in Section 2.1{h), the HRA makes no representation or warranty, express or implied, regarding the presence or absence on, in or under the Development Property or groundwater of any Hazardous Substance. The HRA also makes no representation or warranty, express or implied, regarding the quality of the soil on the Development Property and whether it is adequate to permit construction of the Improvements without removal, filling, compaction or other correction, or without the use of pilings or other extraordinary supports. Except as to matters represented and warranted by the HRA in Section 2.1{h), Developer hereby waives, releases and discharges the HRA, and the HRA's commissioners, employees, agents and representatives, from any and all claims, demands, complaints, causes of action, debts, liabilities or obligations of any nature whatsoever, known or unknown, relating to the presence or absence on, in or under the Development Property or groundwater of any Hazardous Substance, or the quality of the soil on the Development Property and whether it is adequate to permit construction of the Improvement~ without removal, filling, compaction or other correction, or without the use of pilings or other extraordinary supports. Section 3.4. Real Estate Taxes and Soecial Assessments. The HRA represents that no property taxes are due and payable on the Development Property in the year of closing, and that there are no pending or deferred or, to the best of its knowledge, threatened special assessments against the Development Property. 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 3.5. Easements. The HRA previously granted the Postal Service that certain Access Easement, recorded in the Office of the County Recorder in and for the County of Hennepin and State of Minnesota as Document No. 2623269. The Access Easement requires the HRA to construct certain driveways on the Development Property for use by the Postal Service and its customers, and to maintain and snow plow the driveways indefinitely thereafter. Developer's purchase of the Development Property from the HRA is subject to the Access Easement. The HRA also previously granted the Postal Service that certain Temporary Drainage Easement, recorded in the Office of the County Recorder in and for the County of Hennepin and State of Minnesota as Document. roo 2623271. The Temporary Drainage Easement permits the Postal Service to construct a temporary drainage pipe and drainage pond on the Development Property to drain its stormwater into the temporary pond. The HRA also agreed to grant the Postal Service a permanent drainage easement for drainage of stormwater from its property into the permanent drainage system and drainage pond to be constructed upon the Development Property. Upon completion of the drainage system and drainage pond, Developer shall grant to the Postal Service the 12 . . . Resolution 95-11 - Continued EXHIBIT B December 12,1995 permanent drainage easement. Developer's purchase of the Development Property from the HRA is and shall. be subject to the Temporary Drainage Easement and the HRA's agreement to grant the permanent drainage easement. The Postal Service previously granted the HRA that certain Sidewalk Easement, recorded in the Office of the County Recorder in and for the County of Hennepin and State of Minnesota as Document No. Pursuant to the Sidewalk Easement, the HRA intends to construct and maintain a sidewalk along the southerly portion of the Postal Service's property. At the closing, the Parties shall enter into the Assignment and Assumption Agreement attached as Exhibit F, whereby the HRA shall assign the Sidewalk Easement to Developer, and whereby Developer shall assume and agree to perform according to their terms, and for as long as such obligations continue, notwithstanding the earlier termination of this Agreement, all of the HRA's obligations under the Sidewalk Easement, the Access Easement (other than the obligation to construct the northwest portion of the driveway by December, 1995, which shall be performed by the HRA at its sole cost and expense), and the Tempo+ary Drainage Easement, and whereby Developer shall agree to construct and maintain indefinitely the sidewalk that is the subject of the Sidewalk Easement. The sidewalk, driveways, and drainage system and drainage pond required or intended by the HRA to be constructed under the easements shall be included in the Development Plans and in the Improvements required to be constructed by Developer pursuant to this Agreement and the same shall be maintained by Developer, and its successors and assigns, indefinitely. Promptly after completion of the sidewalk in accordance with the Development Plans, the HRA shall reimburse Developer for the actual out-of-pocket cost of labor and materials incurred in the construction, subject to a maximum of $3,670, upon Developer'S delivery to the HRA of a certified cost statement from the contractor. Developer agrees to indemnify and defend the HRA against any loss, cost, damage or expense resulting from claims by contractors, subcontractors or suppliers relating to construction of the sidewalk. Section 3.6. 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 G (the IIDeedll). The Deed shall be subject only to the Permitted Encumbrances and the terms and conditions of this Agreement. 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 13 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 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 elsewhere in this Agreement, 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 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. Also at the Closing, the HRA and Developer shall each execute and deliver such documents, closing statements, affidavits, declarations, lien waivers and certificates that shall be reasonably necessary or appropriate to consummate the transaction and cause the issuance of the title policy. Also at the closing, Developer shall execute a written Pond Maintenance Agreement with the City, in form and substance reasonably acceptable to Developer, wherein Developer shall agree to maintain the drainage pond included in the Development plans in accordance with the City'S Surface Water Management Plan. Such agreement shall continue as long as the pond is used as a stormwater retention pond. Section 3.7. Recordina. Developer shall cause the title insurance company to promptly file the Agreement and, at the Closing Date, the Deed, the Assessment Agreement, the Assignment and Assumption Agreement, and the-Pond Maintenance Agreement referred to in Section 3.6, all in the office of the Hennepin County Recorder. Developer shall pay all costs of recording (other than to place title in the condition required by this Agreement), except for the State deed tax which shall be paid by the HRA on the Closing Date. Section 3.8. Use. From the Closing Date through December 31, 2006, Developer (or the owner of the Outlot if different than Developer) shall, subject to the conditions and limitations contained herein, devote the Development Property only to use as a retail and restaurant project, 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. From the Closing Date through December 31, 2006, Developer (or the owner of the Outlot if different than Developer) shall operate and maintain the Improvements upon the Development Property in accordance with the terms of this Agreement, the Plan and all local, state and federal laws and regulations. To the extent that there are any conflicts between this Agreement and 14 Resolution 95-11 - Continued EXHIBIT B December 12, 1995 . 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 3.9. Condemnation. In the event that title to and possession of the Improvements or any material part thereof shall be taken in condemnation or by the exercise of the power of eminent domain by any governmental body or other person (except the HRA) after the Closing Date but prior to December 31, 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 such part) upon the Development Property; provided, however,.th~t if as a direct result of such condemnation, tenants or other occupants occupying more than 25 percent of the square foot area of the building improvements then under written lease (or owning any Outlot) have exercised a right to terminate their leases or have not agreed to reopen for business, Developer shall have the right to raze to grade the damaged Improvements and clear all debris resulting therefrom and landscape the parcel with trees, shrubs and grass in a manner which is compatible with the surrounding area and reasonably acceptable to the HRA, in which event the BRA shall consider, reasonably and in good faith, any proposals made by Developer for changes in use of the Development Property in lieu of requiring restoration pursuant to this Section 3.9. Section 3.10. Guarantv. Upon the execution of this Agreement by Developer, Opus Corporation, a Minnesota corporation (the "Guarantor") has executed the Guaranty attached as Exhibit H, whereby the Guarantor has guaranteed all of the obligations of Developer and the owners of the Outlots under this Agreement and the other agreements contained in the Exhibits attached hereto. The Guaranty shall terminate with respect to each of the various lots in the Development Property when the Certificate of Completion is issued for each such lot. ARTICLE IV Construction of Imorovements Section 4.1. Aooroval of Develooment Plans and Construction of Imorovements. . (a) Developer agrees to submit to the HRA, as soon as practicable after the approval of this Agreement by the HRA at a public meeting, the Development Plans for each of the three separate lots in the Development Property. The HRA shall promptly approve the Development Plans for any of the 15 Resolution 95-11 - Continued EXHIBIT B December 12,1995 . lots if they provide for the construction of the Improvements pursuant to the Preliminary Plans and the terms and conditions of this Agreement. The HRA agrees that its approval shall not be unreasonably withheld, and that it shall not be delayed beyond the regular meeting of the HRA next following delivery by Developer to the HRA of the Development Plans, provided that such delivery is made at least 10 days prior to such meeting and provided the City Council has granted preliminary plan approval pursuant to the P.U.D. application procedure. If Developer (or any Outlot owner if different than Developer) desires to make any material change in the Development Plans after their approval by the HRA, Developer (or any Outlot owner if different than Developer) shall submit the proposed change to the HRA for its approval, which approval shall not be unreasonably withheld or delayed. If the Development Plans, as modified by the proposed change, conform to the requirements of this Section 4.1 with respect to such previously approved Development Plans, the HRA shall approve the proposed change. Such change in the Development Plans shall be deemed approved by the HRA unless rejected in writing within 10 days by the HRA with a statement of the HRA's reasons for such rejection. . (b) Developer (or any Outlot owner if different than Developer) agrees that it will construct the Improvements on the Development Property in substantial conformance with the approved Development Plans for the Improvements and in conformance with all applicable laws, regulations and ordinances. In addition, the permanent drainage system and drainage pond shall be constructed in accordance with the requirements of the Bassett Creek Watershed District with sufficient capacity to handle a 50-year storm. Developer (or any Outlot owner if different than- 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. (c) Developer (or any Outlot owner if different than Developer) will act in good faith and use all commercially reasonable efforts to obtain all consents and approvals required for construction of the Improvements, and Developer (or any Outlot owner if different than 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). . (d) It is understood that the Improvements to be located on the Outlots may be designed and constructed by the transferee of any Outlot and not be Developer, and that in any such case such Improvements shall be constructed ~ubstantially in accordance with the Development Plans. 16 . . . Resolution 95-11 - Continued EXHIBIT B December 12,1995 Section 4.2. Commencement and Comoletion of Construction. Developer shall commence site grading of the Development Property promptly after the Closing Date, and construction of the Improvements within a reasonable time thereafter, and shall diligently prosecute construction to substantial completion. Developer shall substantially complete construction of the Improvements by the date which is 12 months after the Closing Date, provided that if Developer sells or otherwise transfers either of the Outlots, the date required for substantial completion for the Outlot sold or transferred shall be the date which is 15 months after the Closing Date. The term "substantial completion" is defined herein to m~an issuance of the Certificate of Occupancy for the Improvements on each lot within the Development Property by the City. The times provided herein for commencement and completion of construction shall also be extended to the extent of any Unavoidable Delays. All work with respect to the Improvements to be constructed or provided by Developer on the Development Property shall be in substantial conformity with the Development Plans as submitted by Developer. and a~proved by the HRA. Subsequent to execution of this Agreement, and until certification of the Improvements pursuant to Section 4.3, Developer shall make reports to the HRA, in such detail and at such times as may reasonably be requested by the HRA, as to the actual progress of Developer with respect to construction of the Improvements. Developer also agrees that, upon reasonable advance notice during regular business hours, designated representatives of the HRA may enter upon the Development Property during the construction of the Improvements to inspect such construction. The Holder of a First Mortgage shall not have any obligation to' construct or complete construction of the Improvements while in possession of the Development Property pursuant to foreclosure, or conveyance by Developer to the Holder of the First Mortgage in lieu of foreclosure, except as provided in Section 8.3. Section 4.3. Certificate of Comoletion. (a) Promptly after completion of the Improvements in accordance with the provisions of this Agreement for each of the three separate lots in the Development Property, the HRA will furnish Developer (or the owner of the Outlots if different than Developer) with a Certificate of Completion for each such lot, in substantially the form set forth in Exhibit B attached hereto. Such Certificate of Completion shall be (and it shall be so provided in the Certificate of Completion itself) a conclusive determination of satisfaction and termination of the agreements and covenants in this Agreement with respect to the obligations to construct the Improvements on each such lot. 17 . . . Resolution 95-11 - Continued EXHIBIT B December 12,1995 (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 (or the owner of the Outlot if different than Developer), provide Developer (or the owner of the Outlot it different than Developer) with a written statement, indicating in adequate detail in what respects Developer (or the owner of the Outlot if different than 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 (or the owner of the Outlot if different than Developer) to take or perform in order to obtain such Certificate of Completion. In the event the HRA fails to provide a Certificate of Completion in accordance with the requirements of this Section, Developer shall have all rights and remedies available at law or equity, including mandatory injunctive relief. Section 4.4. DeDosit 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 May 31, 1996 (or such later date as is agreed to by the HRA and Developer in writing), 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 12.1(b)-(e) 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 30, 1995 and May 31, 1996 (or such later date as is agreed to by the HRA and Developer in writing), 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 May 31, 1996 (or such later date as is agreed to by the HRA and Developer in writing), the Deposit shall be applied as a credit against the Purchase Price. 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 $500,000, issued by a reputable bank and in a form previously approved by the HRA, which shall secure Developer's obligations under this Agreement. Any letter of credit provided under this 18 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 Section shall provide for expiration in not less than one year, or, if earlier, on a date which is not less than 60 days after the contractor's written estimated date for completion of all of the Improvements. At least 30 days prior to the expiration of any letter of credit provided under this Section, Developer shall provide the HRA with a replacement letter of credit, unless the Certificate of Completion has previously been issued. In the event Developer fails to deliver any letter of credit or replacement letter of credit, Developer shall be in default hereunder with no opportunity to cure and the HRA may immediately draw upon any letter of credit then in effect. Any letter of credit provided under this Section shall permit the HRA to draw upon it for the full face amount thereof, in the Event of Default as defined in Section 10.01 hereof (but only after the expiration of any period to cure provided in Section 10.2), or immediately in the event Developer fails to comply with any obligation stated in this Section with respect to replacement letters of credit. Developer's obligation to maintain a letter of credit under this Section shall terminate after issuance of the Certificate of Completion to Developer for the entire Development Property. In the event Developer transfers either or both of the Outlots pursuant to Section 9.2 prior to completion of the Improvements thereon, Developer's obligation to maintain the entire letter of credit shall continue until all Improvements on such Outlots and the remainder of the Development Property have been completed and Certificates of Completion shall have been issued therefor. ARTICLE V Assessment Aareement and Pavrnent of Taxes Section'5.1. Execution of Assessment Aareement. Developer agrees, upon the Closing-Date, to execute and deliver to the HRA a separate Assessment Agreement for each of the three separate lots 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 each such lot for calculation of real estate taxes pursuant to Minnesota Statutes, Section 272.01, or any successor statute. Each Assessment Agreement shall be in the form of Exhibit A. 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 included in the Development Property, $870,000 for Lot 1, $2,600,000 for Lot 2, and $530,000 for Lot 3 on January 2, 1997, and January 2 of every year thereafter until December 31, 2006 (for taxes payable in 1998 and subsequent years), increased in 1997 and subsequent years by the amount of $134 for each square foot of building Improvements in excess of 6,500 square feet for Lot 1, $72 for each square foot of building improvements in excess of 36,500 square feet for Lot 2, and $152 for each square foot of building 19 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 improvements in excess of 3,500 square feet for Lot 3, and decreased in 1997 and subsequent years by the fair market value of any portion of the Improvements taken in condemnation or by the power of eminent domain for which reconstruction is impracticable as provided in Section 3.8, and by the fair market value. 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. Following the Closing Date, Developer, and/or the subsequent owners of the Outlots, agree to payor cause to be paid, on or before their due dates, all real estate taxes, assessments, water, sewer and other charges, which become due and payable on or before December 31, 2006 with respect to the Development Property or any part thereof. Developer and/or the subsequent owners of the Outlots, 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 (or the owner of the Outlot if different than 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 BRA, furnish the BRA with proof of paYment of premiums on: (i) Builder's risk insurance, written on the so-called "Builder's Risk Completed Value Basis", in an amount equal to one hundred percent (100%) of the insurable value or one hundred percent (100%) of the full replacement cost of the Improvements at the date of completion, with a deductible amount of not more than $50,000, and with coverage available in nonreporting form on the so-called "all risk" form of policy; (ii) Comprehensive general liability insurance (including operations, contingent liability, operations of subcontractors, completed operations and contractual liability insurance) with limits against bodily injury and property damage of not less than $5,000,000 (or $3,000,000 for each Outlot) for each occurrence (to 20 Resolution 95-11 - Continued EXHIBIT B December 12,1995 . accomplish the above-required limits, excess liability policy may be used) . named as an additional insured on any policy; and an umbrella The HRA shall be such liability (iii) Worker's compensation insurance, with statutory coverage. (b) Upon completion of construction of the Improvements on any lot in the Development Property and prior to December 31, 2006, Developer, or the owner of any lot, shall maintain, or cause to be maintained, at its sole cost and expense, and from time to time at the written 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 on any lot, but any such policy may have a deductible amount of not more than $50,000. No policy of insurance shall be written so that the proceeds thereof will produce less than the minimum coverage required by the preceding sentence, by reason of co-insurance provisions or otherwise, without the prior consent thereto in writing by the HRA. The term "full insurable replacement value" shall mean the actual replacement cost of the Improvements on any lot (excluding foundation, grading and excavation costs and other uninsurable items). (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 (or $3,000,000 for each Outlot). . (iii) Worker's compensation insurance respecting all employees of Developer (or the owner of any Outlot if different than Developer) in amounts not less than the minimum required by statute. (c) All insurance policies required in this Article VI shall be in form and substance reasonably satisfactory to the HRA and shall be taken out and maintained in responsible insurance companies selected by Developer, or any Outlot owner, which are authorized under the laws of the State to assume the risks covered thereby. At the first time that 21 Resolution 95-11 - Continued EXHIBIT B December 12,1995 . any insurance is required to be in effect hereunder, Developer (or the. owner of any Outlot if different than Developer) will deposit with the HRA a certificate or certificates or binders of the respective insurers evidencing that such insurance is in force and effect. Unless otherwise provided in this Article VI, each policy shall contain a provision that the insurer shall not cancel or materially modify it without giving written notice to Developer, or any Outlot owner, and the HRA at least thirty (30) days before the cancellation or modification becomes effective. Upon the HRA's written request, Developer, or any Outlot owner, shall furnish the HRA evidence reasonably satisfactory to the HRA that any policy required hereunder is in effect. In lieu of separate policies, Developer, or any Outlot owner, 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, or any Outlot owner, 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 (or the owner of any Outlot if other than Developer) shall within sixty (60) days after such damage or destruction, commence to repair, reconstruct and restore the damaged Improvements on the affected lot 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 (or the owner of any Outlot if other than 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 rlestruction to the paYment or reimbursement of the costs thereof; provided, however, that if as a direct result of such fire or other casualty, tenants or occupants occupying more than 25 percent of the square foot area of the building improvements then under written lease (or owning any Outlot) have exercised a right to terminate their lease or have not agreed to reopen for business, Developer shall have the right to raze to grade the damaged Improvements and clear all debris resulting therefrom and landscape the parcel with trees, shrubs and grass in a manner which is compatible with the surrounding area and reasonably acceptable to the HRA, in which event the HRA shall consider, reasonably and in good faith, any proposals made by Developer for changes in the use of the Development Property in lieu of requiring restoration pursuant to this Section 6.1(d). Developer shall only be required to complete the repair and reconstruction of the Improvements, to the extent of the Net Proceeds.of insurance received by Developer for such purposes. 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 . 22 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 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 Develooment Prooertv. As consideration for the purchase of the Development Property and construction of the Improvements by Developer, the HRA agrees to complete, subject to the provisions of Section 7.2 below, the following actions: (a) Sale of the Development Property to Developer pursuant to the Deed on the Closing Date. (b) Use its best efforts with the City so that the Improvements may constitute a permitted use under the zoning ordinance of the City. Section 7.2. Additional Covenants. At the request of Developer, but subject to the HRA's statutory powers and purposes, the HRA shall cooperate and work together with Developer (including, without limitation, joining in the execution of the materials described in clause (i) below) in connection with (i) applications, agreements, and amendments relating to, among other things, zoning, site plan, planned development, subdivision, protective covenants, utility and other development matters to permit the development of the Development Property in accordance with the Development Plans, and (ii) any requirements of local, state or federal governments, or any agency thereof, or any public utility relating to the proposed d~velopment of the Development Property. The HRA shall not, prior to the Closing Date, consent to, or knowingly permit, any Hazardous Substances being stored, generated, used, located, discharged, released, managed, processed or otherwise handled on the Development Property and shall comply with all applicable environmental laws and regulations affecting the Development Property. The HRA shall immediately notify Developer should the HRA becomes aware prior to Closing, of (i) any Hazardous Substance or other environmental problem or liability with respect to the Development Property, (ii) any private or governmental lien or judicial or administrative notice, order or action relating to Hazardous Substances with respect to the Development Property, or (iii) any litigation or threat of litigation relating to any alleged unauthorized release, discharge, generation, use, storage or processing or any Hazardous Substance or the existence of any Hazardous Substance or other environmental contamination, liability or problem with respect to the Development Property. For purposes of.this paragraph, the HRA shall not be considered to be aware of anything unless William JOYnes, Mark Grimes or Jeanne Andre of the HRA staff have actual knowledge of it. 23 . . . Resolution 95-11 - Continued EXHIBIT B December 12,1995 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 and the Development Agreement by any public body succeeding to its powers. ARTICLE VIII Mortqaqe Financinq Section 8.1. ADDroval of Mortqaqe. Any First Mortgage prior to issuance of the Certificate of Completion shall require the prior written approval of the HRA's Director. After the Certificate of Completion has been issued for a lot, no mortgage or similar financing arrangement shall require any approval. by the HRA Director or otherwise. 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 pursuant to the foreclosure, or conveyance by Developer to the Holder in lieu of foreclosure, except upon express assumption of such obligation as provided in Section 8.3, provided that nothing in this Section or in any other section of this Agreement shall be deemed or construed to permit any Holder to devote the Development Property or any portion thereof to any use, or to construct any improvement, other than those uses or improvements permitted by this Agreement. Further, any party who obtains any interest in all or any portion of the Development Property from or through any Holder, except for any nominee or agent controlled by the Holder, whether through foreclosure sale or otherwise, shall be strictly subject to the terms and conditions of this Agreement, as such are binding on Developer, and such party shall not be entitled to any additional rights or privileges granted a Holder hereunder. TheHRA also agrees to execute any non-disturbance agreement reasonably requested by a Holder, provided it does not conflict in any material respect with the HRA's rights under this Agreement. Section 8.2. Notice of Default: CODY to Mortqaqee. Whenever the HRA shall deliver any notice or demand to Developer 24 . . . Resolution 95-11 - Continued EXHIBIT B December 12,1995 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 Obtion 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 (but not the obligation), 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. Notice shall be deemed given in the manner described in Section 11.4. 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. If the Holder enters into an agreement assuming the obligations of Developer under the Agreement, such agreement shall provide that all obligations of the Holder thereunder shall terminate at such time as the Agreement is assigned by the Holder in accordance with the provisions of Section 9.1 of the Agreement or in accordance with the following paragraph. Any Holder who shall properly complete the Improvements relating to the Development Property shall be entitled, upon written request made to the HRA, to a certification by the HRA to such effect in the manner provided in Section 4.3 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 by foreclosure or a deed in lieu of foreclosure, the Holder shall, prior to issuance of the Certificate of Completion, 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 25 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 financial condition and experience of the proposed assignee and its c~pacity 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 provisions of Section 9.1 shall govern. 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, and the Plan, and not to transfer, mortgage or otherwise convey any portion of the Development Property except as permitted in the Agreement. Following an assignment to any assignee meeting the foregoing requirements, the Holder shall be released from any obligation or liability hereunder. Section 8.4. HRA's Ootion to Cure Default on Mortqaqe. Any Mortgage executed by Developer with respect to the Development Property, or any improvements thereon, shall provide that, in the event that Developer is in default under any Mortgage author~zed pursuant to this Article VIII, the mortgagee, simultaneous with the giving of notice to Developer, 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, which right shall run concurrent with any cure period to which Developer is entitled, 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 (but not any Holder) of any costs and expenses incurred by the HRA in curing such default. Interest shall accrue on any amounts due the HRA under this paragraph at the reference rate of interest then in effect at First 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, subordinate to the lien of any First Mortgage. Section 8.5. Subordinate Liens. Until the Certificate of Completion has been issued, Developer agrees that it will not create, incur, assume or suffer any security interest, mortgage, pledge, lien, charge, or like encumbrance upon the Development Property 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 like 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 26 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 limitation, a title insurance company, which the HRA reasonably determines is adequate to protect the interest of the HRA. The restrictions, conditions, limitations and provisions contained herein shall not apply to either of the Outlots following their transfer by Developer in accordance with this Agreement. ARTICLE IX Restrictions on Transfer: Indemnification Section 9.1. Restrictions on Transfer. Except as provided by Sections 8.3 and 9.2 of this Agreement, 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 December 31, 2006, this Agreement and Developer's interest in the Development Property (or any part thereof) may be sold, transferred or assigned by Developer, and Developer shall be released from any obligation or liability to the extent of the interest sold, provided that the purchaser, as of the date of such transfer, has a net worth of at least $5,000,000 and has or will retain a management agent who is experienced in managing and operating retail properties of a type and character similar to the Improvements, and the business reputation of the proposed purchaser is not inconsistent with generally accepted commercial standards, and the purchaser first agrees in writing with the HRA, for himself, his heirs, representatives, successors and assigns, to be bound by the terms and conditions of this Agreement, the Deed, the Assessment Agreement, and the Plan, and not to sell, transfer, mortgage or otherwise assign any portion of the Development Property except as permitted herein. After the Certificate of Completion has been issued by the HRA, but prior to December 31, 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. The Parties agree that the terms and conditions hereof run with the land and shall be binding upon their successors and assigns. The Parties also agree that nothing contained in this Section 9.1 shall be deemed to prevent the leasing of the Improvements. Section 9.2. Transfer of Outlots. The Parties acknowledge and agree that Developer may, shortly after the Closing Date, sell either or both of the Outlots for the initial development 27 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 thereon of restaurants. The HRA hereby agrees to consent to such transfers, and any subsequent transfers, provided that each transferee agrees with the HRA (in a form substantially similar to Exhibit I attached hereto), prior to the transfer, to complete construction and open for business as a restaurant, pursuant to all of the terms and conditions of this Agreement, and to assume and agree to be bound by this Agreement and the Assessment Agreement to the extent such agreements pertain to the Outlot(s). The Parties also agree that each such parcel shall be treated as separate for purposes of issuing it a Certificate of Completion upon completion of construction of the Improvements in accordance with the Development Plans on such parcel, but that no Certificate of Completion will be issued for either Outlot unless and until the Improvements thereon are substantially completed and it opens as a restaurant. Notwithstanding any provision to the contrary contained herein, until the issuance of a Certificate of Completion for either Outlot, Developer shall remain primarily liable for all of the obligations contained in this Agreement, the Deed, and the Assessment Agreement with respect to such Outlot, as if the transfer had not yet occurred. Anything in this Agreement to the contrary notwithstanding, after the Certificate of Completion has been issued for an Outlot, Developer and the Guarantor shall be released from any obligation or liability hereunder with respect to such Outlot, except with respect to any Events of Default existing at that time with respect to the Outlot. Anything in this Agreement to the contrary notwithstanding, the HRA further agrees that, upon issuance of the Certificate of Completion for either of the Outlots, the Outlot and the owner of the Outlot shall be released and no longer subject to the provisions contained in this Agreement and the other agreements contained in the Exhibits hereto other than (a) Article V of this Agreement, (b) the Assessment Agreement, and (c) Section 3.8 of this Agreement which requires that such Outlot be used exclusively for a restaurant or retail use, provided that in the event of destruction or substantial damage to the improvements on such Outlot due to fire or other casualty after completion, or upon the taking of such parcel or any part thereof by condemnation or eminent domain, the owner of the Outlot shall not be required to rebuild a restaurant or other retail use on the Outlot and, in that event, the owner may devote the Outlot to any other lawful retail use or may raze the site to grade and landscape the parcel with trees, shrubs and grass in a manner which is compatible with the surrounding area and reasonably acceptable to the HRA. Developer shall also require the purchasers of each Outlot to enter into mutual cross-access and cross-parking agreements with the owners of the other Outlot and the remainder of the Development Property, which agreements shall be in form reasonably satisfactory to the City. 28 Resolution 95-11 - Continued EXHIBIT B December 12,1995 . 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) If all representations and warranties by Developer are not true and complete in all material respects as of the Closing Date. (c) After the Closing Date and until December 31', 2006, except as provided in Section 9.2, failure by Developer to timely pay all real property taxes, assessments or other charges assessed with respect to the Development Property. (d) Subject to Unavoidable Delays, and extensions agreed to by the Parties, failure by Developer to commence and complete construction of the Improvements pursuant to the terms, conditions and limitations of Article IV of this Agreement. (e) Until December 31, 2006, failure by Developer to observe or perform any material covenant, co~dition, obligation or agreement on its part to be observed or performed under this Agreement. (f) 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. (g) 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. . (h) 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, which is not dismissed within 60 days after filing. 29 Resolution 95-11 - Continued EXHIBIT B December 12, 1995 . (i) 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. HRA 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 (b), (c), (d), or (e) 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 completes the cure within 120 days: (a) The HRA may suspend its performance under the Agreement until it receives assurances from Developer, deemed adequate by the HRA, that Developer will cure its default and continue its performance under the Agreement. . (b) The HRA may draw on any letter of credit then in effect, subject to Section 10.2(c). (c) If the Event of Default occurs on or prior to the Closing Date, the HRA may cancel and rescind the Agreement and, in addition to the reimbursement of HRA expenses under Section 4.4 hereof, collect $250,000 from Developer (and no more), by any legal means necessary, which the Parties agree shall be liquidated damages and the HRA's sole and exclusive remedy for such an Event of Default. . (d) 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, revest title to the Development Property in the HRA, and exclude Developer from possession of the Development Property. The HRA shall thereupon use its best efforts and act in good faith to sell the Project at the best price obtainable (provided such sale is permitted by applicable law) and as soon as reasonably possible, such sale to be on such terms and conditions as the HRA deems reasonable and appropriate to satisfy the provisions of the Plan. The HRA shall apply the proceeds of such sale first to reimburse the HRA for all costs and expenses incurred by the HRA (less any amount received by the HRA from any security provided by Developer) including but not limited to taxes, assessments, utility charges, paYments made to discharge any encumbrances or liens, reasonable attorneys' fees and expenses; second to the Holder of a First Mortgage to the extent of the unpaid mortgage, or any mortgage holder 30 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 on any Outlot; third to reimburse Developer (or the owner of any Outlot if different than Developer) in an amount equal to the Purchase Price plus other reasonable development, acquisition and construction costs incurred by Developer (or the owner of any Outlot if different than Developer) in connection with the Project including attorney's, architects' and engineers' fees and expenses; and the balance to be retained by the HRA. (e) If the Event of Default occurs on or after the Closing Date, 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. (f) If the Event of Default occurs on or after the Closing Date, the HRA may sue for damages, including delinquent taxes levied against the Development Proper~y, 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. Except as provided in Section 10.2(c), 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. Anything in this Agreement to the contrary notwithstanding, if an Event. of Default occurs on or prior to the Closing Date, the HRA's sole and exclusive remedy shall be as provided in Section 10.2(c). Section 10.4. Develooer's Remedies on Default. If the HRA defaults in its obligation to consummate this Agreement, Developer shall be entitled either to terminate this Agreement and have any amounts previously tendered to the HRA returned including, without limitation, the Deposit, or to enforce specific performance of the terms and provisions of this Agreement, as Developer's sole and exclusive remedy in the event of a default by the HRA in consummating this Agreement. Section 10.5. No Additional Waiver Imolied by 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. 31 Resolution 95-11 - Continued EXHIBIT B December 12.1995 . ARTICLE XI Additional Provisions Section 11.1. Eaual Emolovment 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 in writing and shall be sent or dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally, or sent by overnight courier guaranteeing next day delivery, or sent by telecopy with proof of transmission; and, (a) in the case of Developer, is addressed to or delivered personally to Developer at 700 Opus Center, 9900 Bren Road East, Minnetonka, Minnesota 55343, Attention Opus U.S. Legal Department, with copies to Timothy W. Murnane, Opus Northwest L.L.C., 700 Opus Center, 9900 Bren Road East, Minnetonka, Minnesota 55343, and Al Daspin, Winston & Strawn, 35 West Wacker Drive, Chicago, Illinois 60601-9703; 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. All notices shall be deemed given three business days following deposit in United States mail with respect to certified or registered letters, one business day following deposit if delivered to an overnight courier guaranteeing next day delivery, and on the same day if sent by personal delivery or telecopy {with proof of 32 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 transmission}. Attorneys for each Party shall be authorized to give notices for each such Party. 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, including the Access Agreement. 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 December 31, 2006. After December 31, 2006, this Agreement and all of the restrictions, conditions, limitations and provisions contained in this Agreement shall expire without further act or deed. 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. Except as expressly provided in this Agreement, 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 matters reasonably requested by such parties. Section 11.13. Proiect Announcement Siqns/Confidentialitv. Developer shal.l have the right to erect "proj ect announcement" signs on the Development Property at its sole cost and expense. 33 Resolution 95-11 - Continued EXHIBIT B December 12,1995 . Such signs shall comply with applicable City restrictions regarding size, design; location and number. Developer shall keep such signs in good condition. Developer may disclose any matters concerning this Agreement or the Development Property to any person or entity. ARTICLE XII Termination of Aareement . Section 12.1. Develooer's Ootions to Terminate. This Agreement may be terminated by Developer by written notice to the HRA if no Event of Default by Developer is then existing; and (a) The HRA fails to comply with any material term of this Agreement, or if all representations and warranties by the HRA are not true and complete in all material respects as of the Closing Date, except as provided in Section . 2.1(i), and, for any event of default by the HRA other than failure to complete the closing pursuant to Section 3.6, or failure to issue a Certificate of Completion pursuant to Section 4.3, for which there shall be no grace or cure period other than the 10-day period provided in Section 4.3, after written notice by Developer of such failure, the HRA 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 HRAohas 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 and completes the cure in 120 days; (b) Closing has not occurred by May 31, 1996, unless ~xtended 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 the date that is 90 days after the date this Agreement has been approved by the HRA at a public meeting that construction of the Improvements is not practicable without material additional cost due to existing soil or groundwater conditions, or due to the presence of hazardous or toxic waste on the Development Property or due to any other matter disclosed by the soil analysis contemplated by Section 3.2; or . (e) Subject to Section 4.1(c), if Developer does not receive prior to the Closing Date all permits, 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 34 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 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 Section 4.4, if this Agreement is terminated pursuant to this Article XII, this Agreement shall be from such date forward null and void and of no further effect; provided, however, that termination of this Agreement pursuant to this Article XII shall not affect the rights of Developer to institute any action, claim or demand for damages suffered as a result of breach or default of the terms of this Agreement by the HRA, and the HRA shall, in case of termination pursuant to Section 12.1(a), promptly return the Deposit to Developer. 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. 35 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By Its GOLDEN VALLEY COMMONS, L.L.C. By Its STATE OF MINNESOTA SSe COUNTY OF HENNEPIN The foregoing day of AUTHORITY IN AND organization. instrument was acknowledged before me this , 1995, by I a of THE HOUSING AND REDEVELOPMENT FOR THE CITY OF GOLDEN VALLEY, on behalf of the Notary Public STATE OF MINNESOTA } } SSe COUNTY OF HENNEPIN } The foregoing instrument was acknowledged before me this day of , 1995, by I a of GOLDEN VALLEY COMMONS, L.L.C., a Delaware limited liability company, on behalf of the organization. Notary Public DRAFTED BY: Best & Flanagan 4000 First Bank Building 601 Second Avenue South Minneapolis, Minnesota 55402-4331 CCB\Golden.Agr\219S2 36 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 EXHIBIT A 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 ~ sea. (the "HRA") , and Golden Valley Commons, L.L.C., a Delaware limited liability company, (the "Developer"), hereby covenant and agree that the property legally described as [Lot 1, 2 or 3], Golden Valley Commons, P.U.D. No. 70 (the "Development Property") and the improvements to be made thereto pursuant to the Golden Valley Commons Private Development Agreement between the parties dated as of , 1995, (the "Development Agreement") 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 [$870,000 for Lot 1, $2,600,000. for Lot 2 and $530,000 for Lot 3] on January 2, 1997, and January 2 of every year thereafter that this Assessment Agreement is in effect (for taxes payable in 1998 and subsequent years), increased in 1997 and subsequent years by the amount of [$134 for each square foot of building improvements in excess of 6,500 square feet for Lot 1, $72 for each square foot of building improvements in excess of 36,500 square feet for Lot 2 and $152 for each square foot of building improvements in excess of 3,500 square feet for Lot 3], and decreased in 1997 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 fair market value for any portion of the unimproved Development Property taken in cqndemnation or by the power of eminent domain (the "Assessor's Minimum Market Value") . Commencing with taxes payable in the year 1998 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. If this Assessment Agreement is approved and certified by such Assessor in the form of attached Exhibit A-1, this Assessment Agreement shall be filed in the office of the Hennepin County Recorder or in the office of the Hennepin County A-1 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 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 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, except that Developer may be released from personal liability upon a sale or transfer of the Development Property as permitted by the Development Agreement. This Assessment Agreement is effective as of the date hereof and shall remain in force and effect until December 31, 2006. IN WITNESS WHEREOF, the parties have caused the execution'of- this Assessment Agreement as of this day of 1996. THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By Its By Its GOLDEN VALLEY COMMONS, L.L.C. By Its STATE OF MINNESOTA SSe COUNTY OF HENNEPIN The foregoing day of instrument was acknowledged before me this , 1996, 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 A-2 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 STATE OF MINNESOTA SS. COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this day of , 1996, by , a of Golden Valley Commons, L.L.C., a Delaware limited liability company, on behalf of the organization. Notary Public DRAFTED BY: Best & Flanagan 4000 First Bank Building 601 Second Avenue South Minneapolis, Minnesota 55402-4331 A-3 Resolution 95-11 - Continued EXHIBIT B December 12, 1995 . EXHIBIT A-1 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 as [Lot 1, 2 or 3], Golden Valley Commons, P.U.D. No. 70. 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 the Developer pursuant to the Private Development Agreement; 5. He has reviewed the market value previously assigned to the Development Property upon which such improvements are to be constructed; and . 6. The undersigned assessor, being legally responsible for the assessment of the above described Development Property upon completion of the improvements to be constructed thereon, hereby certifies that the market value assigned to such land and improvements upon completion shall not be less than [$870,000 for Lot 1, $2,600,000 for Lot 2 and $530,000 for Lot 3]. on January 2, 1997, and January 2 of every year thereafter (for taxes payable in 1998 and subsequent years), increased in 1997 and subsequent years by [$134 for each square foot of building improvements in excess of 6,500 square feet for Lot 1, $72 for each square foot of building improvements in excess of 36,500 square feet for Lot 2, and $152 for each square foot of building improvements in excess of 3,500 square feet for Lot 3], and decreased in 1997 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 fair market value for any unimproved portion of the Development Property taken in condemnation or by the power of eminent domain. . Dated , 1996. Director of Property Taxation Hennepin County, Minnesota A-4 . . . Resolution 95-11 - Continued EXHIBIT B December 12,1995 EmJ:BJ:T B CERTIFICATE OF COMPLETION THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY, a public body corporate (the "HRA"), and GOLDEN VALLEY COMMONS, L.L.C., a Delaware limited liability company ("Developer"), previously entered into the Golden Valley Commons Private Development Agreement (the "Agreement"), a memorandum of which was 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: [Lot 1, 2 or 3], Golden Valley Commons, P.U.D. No. 70. The Agreement contains certain covenants which, if not performed by Developer, or its successors and assigns, prior to. the date of completion of construction of the improvements contemplated thereby, would result in a forfeiture and right of re-entry by the HRA, its successors and assigns. 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 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. 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 or elsewhere requiring or concerning completion of the construction of the improvements. Notwithstanding the foregoing, the remaining covenants contained in the Agreement remain in full force and effect if, as and to the extent provided in the Agreement. B-1 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By Its And Its STATE OF MINNESOTA SS. COUNTY OF HENNEPIN The foregoing _ day of and and in and for the instrument was acknowledged before me this , 19_, by , respectively the of The Housing and Redevelopment Authority 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 B-2 :-.......-.--- - ~i I -:....J I c:::::::: . ,':(J!,il:A v,;'!!~r A,i <J ---- -~~ --------- '~ \ . -- ia "" II "" "" ."" :Dr ~: ~.. 'I: ~ " " II ~:: .. " '~" II ~.~ . II II II " ~ ~ ~! ~ II " .. .. " .. .. .. .. V . . I " I' " I I I l ., " " i-ll , . I I \ , , I , . " I " l f I. ~'i'. 151 :. 'I: , '., ~ .. ". ',' -.-- - - --.------------- -:- 1=: - .. - .- IIHgw.....'a;rJ.:: <t -----... -..... & ....... ............. "-- _I _ GOlDEN VRLLEY COtItONS lI'UI ~l. __IIUIY. _ - -,.- . I I _Ill. IOIES. I. Ill.... .........._. .. ""-..----. .. .. It.-. fI8t.............. .. ~tnr:r..~" .. 1BlI......w. ow_ Parts of preliminary plan do not meet Code requirements. Variances must be approved through PUD process for: * signage * building, parking and driveway setbacks * loading docks * parking In addition, drug store drive-up lane does not conform to HRA Request for Proposals. - ~ NORTH FbA I I... _ _(JOI', ~-- iit1i::' _... CIVIL SITE PUll . C4 . '"0 Q) ::l c: ! I i &. u ~ i:) d f:1 lO 0') 0') T"'" N T"'" ~ Q) .0 E Q) o Q) Cl . 1.t-r. IlfCK willOCk BASI: ,1(r1NISftIO AlUMINUM STOIlflONl co l:: CO ::c >< w ~.n:.:!" 'NO/VIDUAl BACklIT CHANNtllITTUS IIfS BtAURANT ,:o"il SOUTH (UVATlON nllCK wIllOCK '''SI INDIVIDUAl BACklIT OiANN[lUnUS . 17'-0. <!l /1; t',~ - ESTAURANT ..;. ''''',.'-P.'; lAST UIVAnOH ~~~!~~r500 S:1. JlICK wIllOCK I"Sf ACC[NT BAND HOITH Il(VATION BlOCk IAlI CRAOI NI... ~<>:~J._ MIMI ROOF 1N00\llllUAI IACkll1 CHANNlIlI TTIRS ACONr BAND r..-=.;..:.'i-.; "; wnr IlIVAIION RESTAURANT (6500 SF1tX w/ltoa 'AS! 1'1-."-0. - .- -_._'-":~~~ 4- BACklit WINDOW _ '_11:-:0~-? .'-... ClADE N(A.. ROAD 'V --~-=p~ ..; U, .., ~;~1IF: ..!--BIOCK BASI PYlON SlCN . ~"-O"~ ,- ClOCK town PYLON SIGNS/CLOCK TOWER "....,.-0. I(I(E kUtlfUnsk y Krank I!rkkJOn Architects. hlc. ~.. f"'" M ,.,,,,,. .......11 MI..."'....".II... ~,. ." 1111 ftU/,''''.'''.' ."X,\.'.'Ut," GOLDEN VALLEY COMMONS GOI.DEN VAllEY. MN EXTERIOR ELEVATIONS ary SUBMITTAl. 817/95 DEVElOPER o OPUS. 800 Opus Ce..... 9900 s....1lood fa.1 MiMt,...... _sorl SSJ4J .....,..,.... _............ lit .................,...........,.. ............. '*........,....... ArcM. ...........af........~ .,.. --~ - ~ ea- ........",~ ~_Nl!:. !!~:'!~~.~~ . "'-It L.~-!~/~ . ., !!!!.! . - A "-- I.{) 0> 0> ~ -'or MI lAI IOUI' -IACklll WINOOW ________IICHI IIICK COlINIQ r------.- r--.-.n.-... .-. OICOIAlIVl TI" . INS -.- - ...1Ot . I r. _. ~ INln""'''' R":'''' OIANNII 1111115 OJ t: OJ ::r: >< w IICHI 111(1( CORNICI _______MfMI ROOf ....-.-.--..--- -'---'--IIfS-u INOIVIOUI\ll1O.111 OiANN(lll'flRS -----IA(ICUl WINOOWS ~1N1)fVlDUAl8A(KIII OIANlltl U' II as _-1!'-.!!!:'i- IAClIII WINDOWS . . IRO - MI IAI COI'INC INS IINI Of rosl Oflla lOCAtiO IN IIONT.:_~~I_V~~~_____.L_.____u___u. .-_ MlIAlIX10IS _ l.alll WINDOWS LICHT 111(1( COlINIU DlCORATlVI 11.1 SRICK _ll::~+ ~~ . I(I(E Kununsky Krank Erlck.on ArchUed'. Inc. .".' flnil A\TttI.... Nurth MIINI&-apu.h. "'N ,'.Inl f.. '1.,.,.,. "fl.. tAlC .'.''''1,. GOLDEN VALLEY COMMONS GOLDEN VAHEY, MN EXTERIOR ELEVATIONS OTY SUllMTTAl 817/95 - DEVELOPER ~ OPUS. 8OlIOp.' Center 9900 Ilfenlloadhll Mionelanta. MiMeSOlI ~J .......,....,.... ..... ........-. . ......... "..,...ltr......., ..,.... ==,...::.==~~AfdIIKt I!!!L_.,.__~ !!'!I...!!!...! - -- -- ----- ~No. 11-0"'0"-01 ;.'~.._. .!~~=.- . !t. ~~."'/~ .I!J.KA/!! - A: .. .,...:""~ . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 EXHIBIT D DEMOLITION SPECIFICATIONS The professional wrecking by a licensed contractor of any buildings, structures, tanks or other manmade objects. It consists of the removal of all hazardous/toxic waste materials from site (other than such materials in the soil or groundwater) to a licensed landfill area (licensed in the disposal of toxic waste, materials) prior to demolition work. All work shall be complete and include the capping or removal of existing utilities, except those to be relocated, and the wrecking and removal of all footings, foundations, floor slabs, subsurface tanks, buried utility lines sized in excess of 6" in diameter, steps, stoops, private sidewalks, site lighting poles, driveways and provide for a clean compacted (95% Proctor Density) granular type fill in all excavations resulting from demolition.. All piping, heating plants, fuel storage tanks, appliances and other debris shall be removed from site to a licensed landfill area. All work shall be performed in conjunction with State, City and/or local ordinances and reasonable restrictions. D-1 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 EXHIBIT E PERMITTED ENCUMBRANCES (a) Building, zoning and similar laws and ordinances. (b) Mineral rights reserved to the State of Minnesota, if any. (c) Those restrictions and reversionary rights contained in the Golden Valley Commons Private Development Agreement. (d) The following easements of record: i. Easements and rights for Trunk Highway in favor of the State of Minnesota dated April 22, 1958 as Document No. 562328 and amended by Order of Court April 28, 1959 in Document No. 591058. ii. Easements for Sanitary Sewer purposes in favor of Metropolitan Waste Control Commission all dated April 4, 1988 and filed of record as Document Nos. 1923750, 1924734 and 1924735 and as shown on the recorded plat. iii. Easement for access and other purposes between the HRA and the United States Postal Service dated May 31, 1995 and filed of record as Document No. 2323269 (also contains a temporary construction easement to expire December 31, 1997). iv. Easement for a temporary drainage and utility easement over the North 250 feet of East 323 feet dated June 6, 1995 and filed of record as Document No. 2623271. (e) Other restrictions, if any, expressly agreed to by Developer. E-1 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 EXHIBIT F ASSIGNMENT AND ASSUMPTION AGREEMENT THIS AGREEMENT, effective as of , 1996, 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 GOLDEN VALLEY COMMONS, L.L.C., a Delaware limited liability company with its principal office located at 800 Opus Center, 9900 Bren Road East, Minnetonka, Minnesota 55343 ("Developer") . WHEREAS, the HRA and Developer have entered into the Golden Valley Commons Private Development Agreement, dated , 1995, recorded in the Office of the Hennepin County Registrar of Titles as Document No. (the "Development Agreement") relating to the following-described property: Lots 1, 2, and 3, Golden Valley Commons, P.U.D. No. 70, Hennepin County, Minnesota (the "Property"); and WHEREAS, the HRA previously granted the U.S. Postal Service (the "Postal Service") that certain Access Easement, recorded in the Office of the Hennepin County Registrar of Titles as Document No. 2623269. The Access Easement requires the HRA to construct certain driveways on the Development Property for use by the Postal Service and its customers, and to maintain and snow plow the driveways indefinitely thereafter; and WHEREAS, the HRA also previously granted the Postal Service that certain Temporary Drainage Easement, recorded in the Office of the Hennepin County Registrar of Titles as Document No. 2623271. The Temporary Drainage Easement permits the Postal Service to construct a temporary drainage pipe and drainage pond on the Development Property to drain its stormwater into the temporary pond. The HRA also agreed to grant the Postal Service a permanent drainage easement for drainage of stormwater from its property into the permanent drainage system and drainage pond to be constructed upon the Development Property; and WHEREAS, the Postal Service previously granted the HRA that certain Sidewalk Easement, recorded in the Office of the Hennepin County Registrar of Titles as Document No. and pursuant to the Sidewalk Easement, the HRA intends to construct and maintain a sidewalk along the southerly portion of the Postal Service's property; and WHEREAS, Section 3.5 of the Development Agreement provides that, at the closing of the HRA's sale of the Development Property to Developer, the HRA will assign all of its rights and obligations under the various easements with the Postal Service to Developer, and Developer will assume and perform all of the F-1 . . . Resolution 95-11 - Continued EXHIBIT B December 12,1995 HRA's obligations thereunder, together with certain other obligations; NOW, THEREFORE, in consideration of the foregoing, and in consideration of the mutual terms and conditions contained herein, the parties hereby agree as follows: 1. Assiqnment. The HRA hereby assigns to Developer all of its rights and obligations under the Access Easement, the Temporary Drainage Easement, and the Sidewalk Easement. 2. Assumotion. Developer accepts the foregoing assignment, and assumes and agrees to be bound by, and perform according to their terms, all of the terms and conditions of the Access Easement (other than the obligation to construct the northwest portion of the driveway by December, 1995, which shall be performed by the HRA at its sole cost and expense), the Temporary Drainage Easement, and. the Sidewalk Easement. In connection therewith, Developer agrees to construct and maintain for the periods specified in the Development Agreement (a) the driveways required to be constructed and maintained by the HRA pursuant to the Access Easement (other than the obligation to construct the northwest portion of the driveway by December, 1995, which shall be performed by the HRA at its sole cost and expense), (b) the sidewalk that is the subject of the Sidewalk Easement, and (c) the drainage pipe and drainage pond that are the subject of the Temporary Drainage Easement and the permanent drainage easement, subject to the terms and conditions contained in said easements and, in addition, in conformance with the Development Agreement and the Development Plans related thereto. Upon completion of construction of the drainage system and drainage pond, Developer shall grant to the Postal Service the permanent drainage easement allowing the Postal Service to drain stormwater from its property into the permanent drainage system and drainage pond. 3. Reimbursement an~ Indemnitv. Promptly after completion of the sidewalk in accordance with the Development Plans, the HRA shall reimburse Developer for the actual out-of- pocket cost of labor and materials incurred in the construction, subject to a maximum of $3,670, upon Developer'S delivery to the HRA of a certified cost statement from the contractor. Developer agrees to indemnify and defend the HRA against any loss, cost, damage or expense resulting from claims by contractors, subcontractors or 'suppliers relating to construction of the sidewalk. 4. Bindinq Effect. The terms of this Agreement are binding upon, and shall inure to the benefit of, the successors and assigns of the parties. The obligations of Developer hereunder shall be deemed to be covenants and restrictions running with the land with respect to the Property other than the Outlots. F-2 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 5. Miscellaneous. This Agreement shall be interpreted in accordance with Minnesota law and may be amended only by a written instrument signed by all of the parties hereto. This Agreement constitutes the entire agreement of the parties on the subject matter hereof and supersedes any prior oral or written agreements other than the Development Agreement. This Agreement shall not operate to amend or terminate the Development Agreement which shall continue in full force and effect. In the event of a conflict between this Agreement and the Development Agreement, this Agreement shall govern. This Agreement shall continue indefinitely. IN WITNESS WHEREOF, the parties have caused the execution of this Assessment Agreement as of the day and year first above written. THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF' GOLDEN VALLEY By Its By Its GOLDEN VALLEY COMMONS, L. L. C . By Its F-3 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 STATE OF MINNESOTA ss. COUNTY OF HENNEPIN The foregoing instrument _ day of and and REDEVELOPMENT AUTHORITY IN AND behalf of the organization. Notary Public STATE OF MINNESOTA ss. COUNTy OF HENNEPIN The foregoing instrument was acknowledged before me this _ day of , 1996, by a of Golden Valley Commons, L.L.C., a Delaware limited liability company, on behalf of the organization. Notary Public DRAFTED BY: Best & Flanagan 4000 First Bank Building 601 Second Avenue South Minneapolis, Minnesota 55402-4331 F-4 Resolution 95-11 - Continued EXHIBIT B December 12,1995 . EXHIBIT G LrMITED 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 seg. ("Grantor"), hereby grants, bargains and conveys to GOLDEN VALLEY COMMONS, L.L.C., a Delaware limited liability company ("Grantee"), real property in Hennepin County, Minnesota, described as follows (the "Property"): Lots 1, 2 and 3, Golden Valley Commons, P.U.D. No. 70, according to the recorded plat thereof; 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 "Plan"), and any covenants, conditions, or restrictions contained in the Golden Valley Commons Private Development Agreement dated , 1995, between Grantor and Grantee (the "Agreement") . Provided: 1. It is understood and agreed that this Deed is subject to the restrictions, reservations and encumbrances set forth on Exhibit A, and the covenants, conditions, restrictions and provisions of the Agreement. It is also understood and agreed that, (a) prior to issuance of the Certificate of Completion (as defined in the Agreement), Grantee shall not sell, transfer, mortgage or otherwise convey the Property, or any part thereof or interest therein, except as permitted by the Agreement, (b) subsequent to issuance of the Certificate of Completion, Grantee may sell, transfer, mortgage or otherwise convey the Property or any part thereof to any party, provided that Grantee may not be released from any liability or obligation under the Agreement except as permitted thereby, and (c) the Outlots, as defined in the Agreement, may be sold, transferred, mortgaged or conveyed to any third party, subject to the Agreement. . Grantee hereby covenants and agrees to begin and diligently prosecute to substantial 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 G-1 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 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 and upon issuance of the Certificate of Completion, the Outlots shall be released and no longer subject to the Agreement except as provided in Section 9.2 of the Agreement. 2. If an "Event of Default" by Grantee, as defined in Section 10.1 of the Agreement, which is not cured within the period provided in Section 10.2 of the Agreement, exists prior to the issuance 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. Grantor agrees that upon issuance of the Certificate of Completion described in paragraph 1 above, its right to re-enter and take possession of the Property shall terminate. 3.' The parties agree that certain covenants and agreements of Grantee contained in the Agreement continue until December 31, 2006, notwithstanding prior issuance of the Certificate of Completion, including covenants relating to payment of taxes, use of the property and maintenance of insurance. The parties agree that all of the covenants and restrictions contained in this Deed shall be binding upon and inure to the benefit of Grantee, its successors and assigns, and 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 t~is ____ day of 1996. 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 G-2 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 STATE OF MINNESOTA COUNTY OF HENNEPIN S$. 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 G-3 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 EXHJ:BJ:T 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 GOLDEN VALLEY COMMONS, L.L.C., a Delaware limited liability company ("Developer"), OPUS CORPORATION, a Minnesota corporation ("Guarantor"), hereby guarantees to the HRA the full and prompt performance, when due, of all covenants, agreements, and obligations of Developer under the Golden Valley Commons Private Development Agreement dated as December ,1995 (the "Development Agreement"), and the other agreements included in the Exhibits attached to the Development Agreement (the "Other Agreements") . 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 of any default by Developer, and any and all defenses, claims and setoffs of Developer, provided that (a) Guarantor does not waive defenses of payment or performance but agrees that any final, non-appealable judicial or administrative determination relating to payment or performance against Developer shall be equally binding on Guarantor, and (b) Guarantor may cure any defaults by Developer within any cure period allowed 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 the successful enforcement of this Guaranty. Guarantor shall 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. This 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 for each of the three separate lots included in the Development Property (Lots 1, 2 or 3) and for all purposes at such time as the Certificate of Completion is H-1 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 issued for each such lot as provided in Section 4.3 of the Development Agreement.. IN WITNESS WHEREOF, Guarantor has caused the execution of this Guaranty this day of , 1995. OPUS CORPORATION By Its STATE OF MINNESOTA SSe COUNTY OF HENNEPIN On this day of , 1995, of Opus Corporation, a Minnesota corporation, personally appeared before me and acknowledged that he executed the foregoing instrument on behalf of the corporation. Notary Public H-2 . . . Resolution 95-11 - Continued EXHIBIT B December 12,1995 EmIBIT I . ASSUMPTION AGREEMENT THIS AGREEMENT, effective as of 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 GOLDEN VALLEY COMMONS, L.L.C., a Delaware limited liability company with its principal office located at 800 Opus Center, 9900 Bren Road East, Minnetonka, Minnesota 55343 ("Developer"); and I 1996, I a I with its principal office in Minnesota located at ("Transferee") . WHEREAS, the HRA and Developer have entered into the Golden' Valley Commons Private Development Agreement, dated --, 1995, recorded in the Office of the Hennepin County Registrar of Titles as Document No. (the "Development Agreement") relating to certain property, including [Lot 1. or 3], Golden Valley Commons, P.U.D. No. 70, Hennepin County, Minnesota (said Lot 1 or 3 referred to herein as the "Property"); and WHEREAS, pursuant to the Development Agreement, the HRA conveyed the Property to Development by a limited warranty deed dated , recorded in the Office of the Hennepin County Registrar of Titles as Document No. (the "Deed"); and the HRA and Developer entered into that certain Assessment Agreement dated , recorded in the Office of the Hennepin County Registrar of Titles as Document No. (the "Assessment Agreement"); and WHEREAS, Developer now wishes to transfer its entire remaining interest in the Property to Transferee pursuant to a limited warranty deed (the "Transfer"); and WHEREAS, Section 9.2 of the Development Agreement permits such a transfer if, together with certain other conditions, Transferee agrees with the HRA to be bound by the terms and conditions of the Development Agreement, the Deed, and the Assessment Agreement; NOW, THEREFORE, in consideration of the foregoing, and in consideration of the mutual terms and conditions contained herein, the parties hereby agree as follows: 1. Assiqnment. Developer hereby assigns and conveys to Transferee all of its rights and interests in the Development Agreement and the Assessment Agreement as and to the extent applicable to the Property. The HRA consents to the foregoing assignment and to the transfer of the Property. I-1 . . . Resolution 95-11 - Continued EXHIBIT B December 12,1995 2. Assumotion of Aqreements. Transferee hereby assumes and agrees to be bound by.the terms and conditions of the Development Agreement and the Assessment Agreement as and to the extent applicable to the Property; provided, however, that upon issuance by the HRA of the Certificate of Completion for the Property, Transferee shall be released and no longer subject to the provisions contained in the Development Agreement or the Deed other than Article V of the Development Agreement relating to the payments of taxes and assessments, and Section 3.8 of the Development Agreement relating to the use of the Property. Issuance of the Certificate of Completion shall not affect Transferee's obligations under the Assessment Agreement which shall continue in full force and effect thereafter. 3. Reoresentation and Warranty. Developer hereby represents and warrants to the HRA and Transferee that, to the best of its knowledge, it is in full compliance with, and there are no . uncured defaults by it under, the Development Agreement, the Assessment Agreement, or the Deed with respect to the Property~ 4. Release. Upon issuance by the HRA of the Certificate of Completion for the Property, all of Developer's obligations under the Development Agreement, the Assessment Agreement, the Deed and any other agreements contained in Exhibits to the Development Agreement shall automatically terminate with respect to the Property, except with respect to any Events of Default existing at that time with respect to the Property. 5. Bindinq Effect. The terms of this Agreement are binding upon, and shall inure to the benefit of, the successors and assigns of the parties. The obligations of Transferee hereunder shall be deemed to be covenants and restrictions running with the land with respect to the Property. 6". Effectiveness" This Agreement shall become effective upon Developer's transfer of title for the Property to Transferee as contemplated herein. 7. Miscellaneous. This Agreement shall be interpreted in accordance with Minnesota law and may be amended only by a written instrument signed by all of the parties hereto. This Agreement shall not operate to amend or terminate the Development Agreement which shall continue in full force and effect. In the event of a conflict between this Agreement and the Development Agreement, this Agreement shall govern. IN WITNESS WHEREOF, the parties have caused the execution of this Assessment Agreement as of the day and year first above written. I-2 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By Its By Its GOLDEN VALLEY COMMONS, L.L.C. By Its By Its STATE OF MINNESOTA ss. COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this day of , 1996, by and and REDEVELOPMENT AUTHORITY IN AND behalf of the organization. , the of THE HOUSING AND FOR THE CITY OF GOLDEN VALLEY, on Notary Public I-3 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 STATE OF MINNESOTA COUNTY OF HENNEPIN .ss. The foregoing instrument was acknowledged before me this ___ day of , 1996, by a of Golden Valley Commons, L.L.C., a Delaware limited liability company, on behalf of the organization. Notary Public STATE OF MINNESOTA ss. COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this day of , 1996, by a of , on behalf of the organization. Notary Public DRAFTED BY: Best & Flanagan 4000 First Bank Building 601 Second Avenue South Minneapolis, Minnesota 55402-4331 I-4 . . . Resolution 95-11 - Continued EXHIBIT B December 12, 1995 SCHEDULE 2.1 (h) ENVIRONMENTAL REPRESENTATIONS REPORTS AVAILABLE Nova Environmental Services, Inc., Project No. M89-705 Phase I Environmental Assessment, Valley Square Redevelopment, Golden Valley, MN; March 29, 1990 Nova Environmental Services, Inc. Underground Storage Tank Closure Report, M&I Auto Supply Company, Golden Valley, MN; February 14, 1991 En Pro Assessment Corporation, PN # 1-00750 Environmental Profile, Valley Plaza Shopping Center, 7800 Olson Me~orial Highway, Golden Valley, Hennepin Co., MN January 21, 1994 EnPro Assessment Corporation, PN # 4-00068 Excavation Report for Petroleum Release Sites, 7841 Golden Valley Road, Golden Valley, Hennepin Co" MN, May 2, 1994 EnPro Assessment Corporation, PN # 2-00320 Environmental Profile, Valley Plaza Shopping Center, 7800 Olson Memorial Highway, Golden Valley, Hennepin Co., MN, May 10, 1994 Barr Engineering Company Excavation Report and Thermal Treatment Documentation at former Winnetka Service Station, Letter of Transmittal dated October 26, 1994 DPRA Inc. Ph~se I Environmental Site Assessment Report for Proposed Postal Service Site, Rhode Island Avenue and Golden Valley Road, Golden Valley, MN, November 10, 1994 ADDITIONAL INFORMATION Leaky underground storage tank discovered by U.S. Postal Service during excavation summer/fall of 1995 -- check with Postal Service for details. KFC and former Arthur Treachers to be demolished. No detailed information available about this site, but contamination could exist. Unknown whether M&I tank closed in 1991 has been removed. 26872