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98-10 HRA Resolution Resolution 98-10 November 10, 1998 . Commissioner Micks introduced the following and moved its adoption: RESOLUTION CONDITIONALLY APPROVING SALE OF CERTAIN REAL PROPERTY IN THE NORTH WIRTH PARKWAY REDEVELOPMENT AREA (Animal Humane Society, Inc.) WHEREAS, the Housing and Redevelopment Authority in and for the City of Golden Valley (hereinafter "HRA") and the City Council for the City of Golden Valley (hereinafter "City") have approved the North Wirth Parkway Redevelopment Plan as adopted in 1978 and amended from time to time; and WHEREAS, the North Wirth Parkway Redevelopment Plan contemplates the redevelopment of the East Area in office and light industrial type uses; and, WHEREAS, the Animal Humane Society, Inc., a Minnesota non-profit Corporation (hereinafter referred to as "Developer") has made a proposal for the construction of an addition to their headquarters facility at 845 North Meadow Lane, of between 15,000 and 25,000 sq. ft., and a garage/storage facility of 2,000 to 5,000 sq. ft., which would occur on the existing Humane Society property combined with property owned by the HRA; 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 North Wirth Parkway 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 ~469.029, the HRA has duly given notice in the form attached as Exhibit A of a public hearing on the proposed sale of the property legally described in Exhibit B attached hereto (hereinafter the "Subject Property") and has duly held said public hearing. NOW, THEREFORE, BE IT RESOLVED, that the HRA does hereby make the following findings and determinations: 1. Proper published notice of the proposed sale of the Subject Property described above has been given and a public hearing has been held thereon, all in accordance with the provisions of Minnesota Statutes ~469.029; and 2. The use of the Subject Property proposed by the Developer is reasonably within the overall guidelines of the North Wirth Parkway Redevelopment Plan; and 3. The use value of the Subject Property is hereby established as $145,000; . . . . Resolution 98-10 - Continued November 10, 1998 4. In consideration of the restrictions on the sale and use of the Subject Property imposed by Minnesota Statute ~469.029 and the restrictions imposed by the North Wirth Parkway Redevelopment Plan, sale of the Subject Property to the developer at the above noted value 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 and the Director of the HRA are hereby authorized to execute the necessary documents and close the sale of the Subject Property to the Developer pursuant to the terms and restrictions provided hereby; and 3. The Director of the HRA is hereby authorized and empowered to take all necessary steps to acquire the Subject Property and to perform the obligations imposed on the HRA under the private development agreement; and 4. The North Wirth Parkway Redevelopment Plan is hereby amended to the extent that the Developer's proposal embodied in the private development agreement attached hereto as Exhibit "B" so modifies it. ATTEST: Motion for the adoption of the foregoing resolution was seconded by Commissioner Bakken; and upon a vote taken thereon, the following voted in favor thereof: Anderson, Bakken, Johnson, LeSuer and Micks ; and the following voted against the same:none; whereupon said resolution was declared duly passed and adopted, signed by the Chair and her signature attested by the Director. . . . Resolution 98-10 EXHIBIT A November 10, 1998 NOTICE OF PUBLIC HEARING (APPROVAL OF SALE OF REAL PROPERTY - LOT 4, BLOCK 1, NORTH WIRTH PARKWAY 4th ADDITION TO THE ANIMAL HUMANE SOCIETY FOR REDEVELOPMENT) NOTICE IS HEREBY GIVEN that the Housing and Redevelopment Authority (HRA) of Golden Valley, Minnesota will meet at the Golden Valley City Hall, Council Chambers, 7800 Golden Valley Road, on Tuesday, November 10, 1998, at 7:00 PM and will then and there consider the sale and terms of development of the property legally described as Lot 4, Block 1, North Wirth Parkway 4th Addition and located north and east of the current headquarters of the Animal Humane Society, to the Animal Humane Society for redevelopment pursuant to Minnesota Statutes Section 469.029. The proposal is to construct an addition to their existing facility of 15,000-25,000 sq. ft. with a 2,000-5,000 sq. ft. garage/storage facility. All interested parties may appear in person or by counsel and be heard. BY THE HOUSING AND REDEVELOPMENT AUTHORITY /s/ William S. Joynes, HRA Director Resolution 98-10 EXHIBIT B November 10, 1998 . THE ANIMAL HUMANE SOCIETY PRIVATE DEVELOPMENT AGREEMENT THIS AGREEMENT, effective as of , ~ 998, is made and entered into by and between THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN V ALLEY, 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 THE ANIMAL HUMANE SOCIETY, a Minnesota nonprofit corporation, with its principal office located at 845 North Meadow Lane, Golden Valley, Minnesota 55422 ("Developer"). WHEREAS, the HRA and the City of Golden Valley (the "City") adopted the North Wirth Parkway Redevelopment Plan (the "Plan") on September 18, 1978, and have since made certain amendments thereto, for the purpose of redeveloping approximately 110 acres located in the City of Golden Valley (the "Redevelopment Area"); and WHEREAS, the Plan is intended to encourage private development of the Redevelopment Area through various forms of government aid and financial assistance; and . WHEREAS, Developer has submitted to the HRA a proposal for the development of an addition to its existing Humane Society facility with between 15,000 and 25,000 square feet, plus a garage/storage facility with between 2,000 and 5,000 square feet, together with a landscaped walking trail and certain other improvements (the "Project"); and WHEREAS, the Project will be constructed partially on a site in the Redevelopment Area legally described in attached Exhibit A (the "Development Property"), and partially on the adjacent parcel owned by Developer; and WHEREAS, the HRA, after public hearing, has approved the Project as being consistent with the provisions of the Plan; and WHEREAS, the Development Property is included in a tax increment district created pursuant to applicable Minnesota Statutes; 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 h:reby agree as follows: . . . Resolution 98-10 EXHIBIT B 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 Developer Article III - Title and Other Matters 3.1. 3.2. 3.3. 3.4. 3.5. 3.6. 3.7. 3.8. 3.9 Marketable Title Survey and Soil Analysis Replatting Real Estate Taxes and Special Assessments Deed Recording Use Condemnation Access Agreement Article IV - Construction of Improvements 4.1. 4.2. 4.3. 4.4 4.5 Construction of Improvements Commencement and Completion of Construction Certificate of Completion Deposit and Reimbursement ofHRA Expenses by Developer Escrow Agreement Article V - Assessment AlIreement and Payment of Taxes 5.1. Execution of Agreement Article VI - Insurance 6.1. Insurance Article VII - UndertakinlIs of the HRA 7.1. Sale of Development Property 2 November 10, 1998 Page 5 7 8 9 10 10 10 11 11 11 11 12 12 12 13 13 14 14 15 17 . . . Resolution 98-10 7.2. 7.3. 7.4 EXHIBIT B Limitations on Financial Undertakings of the HRA HRA to Maintain Existence HRA's Option to Terminate Article VIII - Mortgage FinancinS?: 8.1. 8.2. 8.3. 8.4. 8.5. Approval of Mortgage Notice of Default; Copy to Mortgagee Mortgagee's Option to Cure Defaults HRA's Option to Cure Default on Mortgage Subordinate Liens Article IX - Restrictions on Transfer: Indemnification 9.1. 9.2. Restrictions on Transfer Indemnification Article X - Events of Default 10.1. 10.2. 10.3. 10.4. Events of Default Defined Remedies on Default No Remedy Exclusive No Additional Waiver Implied by One Waiver Article XI - Additional Provisions 11.1. 11.2. 11.3. 11.4. 11.5. 11.6. 11.7. 11.8. 11.9. 11.10. 11.11. 11.12. Equal Employment Opportunity Not for Speculation Titles of Articles and Sections Notices and Demands Counterparts Modification Interpretation and Amendment Severability Duration Binding Effect Consents Certificates Article XII - Termination of Agreement 12.1. 12.2. Exhibits: Developer's Options to Terminate Effect of Termination 3 November 10,1998 17 17 17 18 18 18 19 20 20 21 21 22 23 23 23 23 23 23 24 24 24 24 24 24 24 24 25 25 . . . Resolution 98-10 EXHIBIT B November 10, 1998 A B C D E Legal Description of Development Property Agreement for Payments in lieu of Taxes Certificate of Completion Development Plans Limited Warranty Deed 4 . . . Resolution 98-10 EXHIBIT B November 10, 1998 ARTICLE I Definitions Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears from the context: "Adiacent Parcel" means the parcel adjacent to the Development Property, owned by Developer, on which Developer's existing facility is situated. "Agreement" means this Private Development Agreement by and between The Housing and Redevelopment Authority in and for the City of Golden Valley, Minnesota, and The Animal Humane Society, a Minnesota nonprofit corporation, as the same may be from time to time modified, amended or supplemented. "Agreement for Pavments in lieu of Taxes" means the agreement to be executed by the HRA and Developer which requires Developer to make payments to the HRA in lieu of real estate taxes, a copy of which is attached hereto as Exhibit B. "Certificate of Como let ion" means the certification, in the form of the certificate contained in Exhibit C attached to and made a part of this Agreement, provided to Developer pursuant to Section 4.4 of this Agreement upon satisfactory completion of the Improvements. "Citv" means the City of Golden Valley, Minnesota. "Closing Date" means the date upon which HRA conveys the Development Property to Developer, which shall be on or after the date the Parties have obtained all necessary consents and approvals required for construction of the Improvements, and which the Parties expect to be on or about December 15, 1998. "Countv" means the County of Hennepin, Minnesota. "Develooer" means The Animal Humane Society, a Minnesota nonprofit corporation, and its successors and assigns under this Agreement. "Development Plans" means the plans, specifications, drawings, and related documents on all construction work to be performed by Developer on the Development Property and the Adjacent Parcel, including all on-site improvements to be performed, installed or constructed pursuant to this Agreement. Such plans include, for each building or other structure to be constructed on the Development Property, at least the following: (i) site plan; (ii) sample elevations and exterior materials; and (iii) landscape plan. The Development Plans also include the landscaped walking trail to be constructed by Developer on the Development Property and the Adjacent Parcel. The Development Plans are attached as Exhibit D and are hereby approved. No changes, except those deemed minor by the HRA Director, shall be made to the Development Plans without prior written approval by the HRA. The Development Plans do not include the landscaped walking trail w~ich is part of the Improvements and which needs to be 5 Resolution 98-10 EXHIBIT B November 10,1998 . completed before the Certificate of Completion will be issued. Plans for the landscaped walking trail must be delivered to, and approved by, the HRA prior to commencement of construction of the trail. "Development Property" means the real property described in Exhibit A of this Agreement. ' "Event of Defaule' means an action by Developer listed in Section 10.1 of this Agreement. "First Mortgage" 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. "HRA" means The Housing and Redevelopment Authority in and for the City of Golden Valley. . "Improved Parcel" means the Development Property and the completed Improvements on the Development Property. "Improvements" means an addition to Developer's existing Humane Society facility with between 15,000 and 25,000 square feet, plus a garage/storage facility with between 2,000 and 5,000 square feet, together with a landscaped walking trail and parking which meets City requirements, plus all other improvements, including fixtures and equipment, to be constructed by Developer upon the Development Property and the Adjacent Parcel pursuant to this Agreement, as such improvements are defined in the Development Plans. "Net Proceeds" means any proceeds paid by an insurer to Developer, the Holder of the First Mortgage, or the HRA under a policy or policies of insurance to be provided and maintained by Developer pursuant to Article VI of this Agreement and remaining after deducting all expenses (including reasonable fees and disbursements of counsel) incurred in the collection of such proceeds. "Parties" means the HRA and Developer. "fm:ty" means either the HRA or Developer. "Plan" means the North Wirth Parkway Redevelopment Plan, adopted by the City and the HRA in September of 1978, and as amended through the date hereof. '. "Project" means the construction and operation of the Improvements by Developer on the Development Property and the Adjacent Parcel pursuant to the terms of this Agreement. 6 . . . Resolution 98-10 EXHIBIT B November 10, 1998 "Purchase Price" means the sum of $145,000. "Redevelooment Area" means the approximately 110 acres located in Golden Valley, Minnesota that are subject to the Plan. "State" means the State of Minnesota. "Tax Increment District" means the Redevelopment Area. "Tax Increment Financing Act" means the statutes located at Minnesota Statutes, Sections 469.174 through 469.179, inclusive, as amended. "Tax Increment Financing Plan" means the Tax Increment Financing Plan for City of Golden Valley. "Tax Official" means any City or County Assessor; County Auditor; County or State Board of Equalization; the Commissioner of Revenue of the State; or any State or Federal District Court, the Tax Court of the State or the State Supreme Court. "Unavoidable Delavs" means actual delays due to events directly affecting the Project which are beyond the reasonable 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. and warrants that: Representations and Warranties by the HRA. The HRA represents (a) The HRA has the power to enter into this Agreement and carry out its obligations hereunder. (b) The Redevelopment Area constitutes a Redevelopment Project pursuant to Minnesota Statutes, Section 469.002, and a Tax Increment District pursuant to Minnesota Statute,s, Section 469.042, and is an "existing project" pursuant to Minnesota Statutes, Section 469.179. (c) .The HRA has examined this Agreement, and has determined that its terms and provisions are in accordance with the objectives embodied in the Plan, and are in the best interests of the City and its residents. (d) The Project, as defined and described in this Agreement, is in conformance with the Plan. (e) The HRA is the fee ,owner of the Development Property. 7 Resolution 98-10 EXHIBIT B November 10, 1998 . (f) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement is prevented or limited by, or in conflict with or will result in a breach of, the terms, conditions or provisions of 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 ofthe foregoing. (g) 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. .The above representations and warranties are true and complete as of the date hereof, shall be true and complete as of the Closing Date, and shall survive the Closing Date. Section 2.2. Representations and Warranties bv Developer. Developer represents and warrants that: (a) Developer is a nonprofit corporation duly organized and in good standing under the laws of the State. . (b) Developer is not in violation of any provisions in its Articles of Incorporation or Bylaws, has power to enter into this Agreement and to perform its obligations hereunder and has duly authorized the execution, delivery and performance of this Agreement by proper action, such that this Agreement is and shall remain binding and enforceable against Developer according to its terms, subject to laws affecting the rights of creditors generally or principles of equity. (c) Developer shall construct, operate and maintain the Improvements upon the Development Property and the Adjacent Parcel in accordance with the terms of this Agreement, the Plan and all local, state and federal laws and regulations. (d) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement is prevented or limited by, or in conflict with or will result in a breach of, the terms, conditions or provisions of Developer's Articles of Incorporation or Bylaws, or any indenture, mortgage, agreement or instrument of whatever nature to which Developer is now a party or by which it is bound, or will constitute a default under any of the foregoing. ., (e) There are no legal proceedings pending, or known to be threatened or contemplated, to which Developer is a party, or to which any property of Developer is subject, which, if determined adversely, would individually or in the aggregate have a material adverse effect on Developer's financial position, or prevent or impair Developer's ability to perform any covenants ,or obligations under this Agreement. '8 . . . Resolution 98-10 EXHIBIT B November 10, 1998 (f) Developer has previously delivered to the HRA copies of its most recent financial statements, prepared in accordance with generally accepted accounting principles; since the date of such statements, there have been no changes in Developer's financial condition which would have a material adverse effect on Developer, or which would prevent or impair Developer's ability to perform any covenants or obligations under this Agreement. (g) D~veloper will act in good faith and use its best efforts to obtain all consents and approvals required for construction of the Improvements, and Developer will comply with all reasonable requirements imposed as conditions for such consents and approvals even if such requirements involve changes to the Development Plans (so long as such changes are not substantial). The above representations and warranties are true and complete as of the date hereof, shall be true and complete as of the Closing Date, and shall survive the Closing Date. ARTICLE III Title and Other Matters Section 3.1. Marketable Title. The HRA agrees to furnish to Developer, as soon as practicable after Developer's execution of this Agreement, a commitment for the issuance of an owner's ALT A policy of title insurance with respect to the Development Property issued by an acceptable title insurance company showing marketable title in the HRA subject only to the following: (a) Building, zoning and similar laws and ordinances. (b) Mineral rights reserved to the State of Minnesota. (c) Easements of record which will not interfere with Developer's proposed development and use ofthe property, including the easement in favor of the HRA and the HRA's successors, assigns and lessees for the cellular phone tower located on the Development Property. (d) The lien of current real estate taxes, if any. (e) Other restrictions, if any, expressly agreed to by Developer, including those restrictions and reversionary rights contained in this Agreement. . The commitment shall include searches for bankruptcies; state and federal judgments; tax and other liens; and for all special assessments, levied, pending (approved by the City Council), or deferred. the commitment shall include full mechanic's lien coverage, shall delete any exceptions for the rights of parties in possession and survey matters, and shall include copies of all documents referred to therein. The cost and expense of the title commitment and the title 9 . . . Resolution 98-10 EXHIBIT B November 10, 1998 policy, based upon the Purchase Price only, sh;1l1 be paid by the HRA. Any other title costs or policies shall be paid by Developer. Developer shall be allowed 15 days after receipt of such commitment to make objections thereto, such objections to be made in writing or deemed waived. The HRA shall be permitted 60 days from and after the date of such objections to cure the same and the HRA hereby undertakes to cure such defects. If such title objections cannot be cured within 60 days, or such longer period as is agreed to by Developer, and Developer does not waive such objections, then Developer shall have the right to terminate this Agreement by giving written notice thereof to the HRA. The Closing Date shall be extended to the extent necessary during the 60-day period. Section 3.2. Survey and Soil Analvsis. The HRA shall, within a reasonable time after the execution of this Agreement, obtain from a registered land surveyor an AL T A survey, including topography, 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. Developer agrees to reimburse the HRA at the closing for one-half of the HRA's reasonable out-of-pocket costs for such surveying. The Parties have entered, or promptly will enter, into an Access Agreement permitting Developer to go on the Development Property to perform a reasonably complete structural and environmental soil analysis of the Development Property. In the event Developer reasonably determines, based upon the results of the soil analysis, that construction of the Improvements is not practicable without material additional cost due to existing soil or groundwater conditions, or due to the presence of hazardous substances or toxic waste on the Development Property, Developer shall have the option of terminating this Agreement pursuant to Section 12.1 (d), provided that any such termination must occur by October 31, 1998, or the right to terminate shall lapse. The HRA makes no representation or warranty, express or implied, concerning the presence on, ~n or under the Development Property of any hazardous substances, contaminants, pollutants or toxic waste, and the HRA disclaims any and all liability and responsibility to Developer in connection therewith. Section 3.3. Reolatting. Developer, at its sole cost and expense, shall consolidate,' replat and obtain P.D.D. approval for the Development Property and the Adjacent Parcel. Developer shall commence the consolidation, replatting and P.D.D. processes as soon as reasonably feasible and shall use diligent efforts to complete them as soon as reasonably feasible, but in no event later than June 30, 1999. The form ofthe final plat shall be determined by the HRA in its reasonable discretion. Section 3.4. Real.Estate Taxes and Soecial Assessments. The HRA represents that no real estate taxes are due and payable on the Development Property in 1998 or 1999. 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. The HRA shall not pay any other special assessments or real estate taxes on the Development Property. Prior to the Closing Date, and as a condition of CI~sing, Developer shall obtain approval from the County 10 Resolution 98-10 EXHIBIT B November 10,1998 . Assessor that the Development Property and the Improvements will.be exempt from real estate taxes while owned by Developer. . Section 3.5. 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 limiSed warranty deed for the Development Property in the form attached as Exhibit E (the "Deed"). The Deed shall be subject to the easements, restrictions, reservations and encumbrances of record, if any, all building and zoning laws and ordinances, all other local, state, and federal laws and regulations, the terms and conditions of this Agreement, and such other encumbrances as the HRA and Developer shall mutually agree. The Deed shall contain a forfeiture clause providing for revesting of title of the Development Property in the HRA, subject to the rights of the Holder ofa First Mortgage, upon the occurrence of an Event of Default (as defined in Section 10.1 hereof) and expiration of any period to cure such Event of Default provided in Section 10.2 hereof prior to issuance of the Certificate of Completion. The Purchase Price shall be due and payable in full at closing in cash, or by cashier's or certified check. Delivery of the Deed shall not cause termination of any provisions of this Agreement, except where expressly provided in this Agreement. Except as provided in Section 3.1 and Section 3.2, all costs of the conveyance of the Development Property to Developer, including any and all fees and charges relating to such conveyance, and filing or recording fees and any and all other taxes and charges payable in connection with such conveyance, if any, shall be wholly borne by Developer, except for the State deed tax which shall be paid by the HRA on the Closing Date, and except that the HRA shall pay its own attorneys' fees. The HRA shall voluntarily take no actions to encumber title, or fail to take any action necessary to prevent encumbrance of title, between the date hereof and date of delivery of the Deed to Developer by the HRA pursuant to this Section. Section 3.6. Recording. Developer shall cause the title insurance company to promptly file the Agreement, the Deed, and the Agreement for Payments in lieu of Taxes in the office of the Hennepin County Recorder. Developer shall pay all costs of recording, except for the State deed tax which shall be paid by the HRA on the Closing Date. Section 3.7. Use. From the Closing Date through December 31,2001, Developer shall devote the Development Property only to use as an addition to its existing Humane Society facility, a garage and landscaped walking trail, as specified in this Agreement, and there shall be no unlawful discrimination in the use of the Development Property on account of race, color, religion, sex, age, national origin, or political affiliation. If the Plan is subsequently amended.in a material respect, such amendment shall not bind Developer or the Development Property without Developer's consent, which consent shall not be unreasonably withheld or delayed. To the extent that there are any conflicts between this Agreement and the Plan, the provisions of this Agreement shall govern, and the approval by the HRA of this Agreement shall constitute an amendment of the Plan. . Section 3.8. Condemnation. In the event that title to and possession of the Improvements to the Development Property or any material part thereof shall be taken in condemnation or by the exercise of the power of eminent domain by any governmental body or other person (except the HRA) after the Closing Date but prior to December 31, 2001, Developer shall, with reasonable promptness after ~uch taking, notify the HRA as to the nature and extent of 11 . . . Resolution 98-10 EXHIBIT B November 10, 1998 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 Developer's 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. Section 3.9. Access ARreement. Prior to the Closing Date, and as a condition of Closing, the Parties shall use their best efforts and act in good faith to negotiate an agreement: (a) granting the owner of the cellular phone tower on the Development Property access to the tower over and across the Adjacent Parcel, for no fee; (b) terminating the existing access agreement; and (c) naming Developer as an additional insured on the owner's liability policy or policies and additional indemnitee on the lease between the HRA and the owner. The HRA ,agrees that its retained interest in the phone tower parcel will revert to Developer after the parcel ceases to be used for a cellular phone tower, or related use, for an uninterrupted period of at least two years. ARTICLE IV Construction of Improvements Section 4.1. Construction of Improvements. Developer agrees that it will construct the Improvements on the Development Property and the Adjacent Parcel in substantial conformance with the approved Development Plans for the Improvements and in conformance with all applicable City requirements. Developer agrees that the scope and scale of the Improvements to be constructed shall not be significantly less than the scope and scale of the Improvements as detailed and outlined in the Development Plans. Section 4.2. Commencement and Completion of Construction. Developer shall commence construction of the Improvements on or before July 15, 1999, and shall diligently prosecute construction to completion. Developer shall complete construction of 100 percent of the Improvements, as a percentage of market value, within 12 months after the date on which Developer begins construction. The times provided herein for commencement and completion of construction shall also be extended to the extent of any Unavoidable Delays. All work with respect to the Improvements to be constructed or provided by Developer on the Development Property and the Adjacent Parcel shall be in substantial conformity with the Development Plans as submitted by Developer and approved by the HRA. Subsequent to execution of this Agreement, and until certification of the Improvements pursuant to Section 4.3, Developer shall make reports to the HRA, in such detail and at such times as may reasonably be requested by the HRA, as to the actual progress of Developer with respect to construction of the Improvements. Developer also agrees that designated representatives of the HRA may enter upon the Development Property and the Adjacent Parcel during the construction of the Improvements to inspect such construction. 12 Resolution 98-10 EXHIBIT B November 10, 1998 . 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 Completion. (a) Promptly after completion of the Improvements in accordance with the provisions of this Agreement, the HRA will furnish Developer with a Certificate of Completion, in substantially the form set forth in Exhibit C attached hereto. Such Certificate of Completion shall be (and it shall be so provided in the Certificate of Completion itself) a conclusive determination of satisfaction and termination of the agreements and covenants in this Agreement with respect to the obligations of Developer to construct the Improvements. . (b) If the HRA shall refuse or fail to provide a Certificate of Completion in accordance with the provisions of this Section, the HRA shall, within ten (10) days after written request by Developer, provide Developer with a written statement, indicating in adequate detail in what respects Developer has failed to complete the Improvements in accordance with the provisions of this Agreement, or is otherwise in default under the terms of this Agreement, and what measures or acts will be necessary, in the opinion of the HRA, for Developer to take or perform in order to obtain such Certificate of Completion. . Section 4.4. Deposit and Reimbursement ofHRA Expenses. Pursuant to a prior Reimbursement Agreement between the Parties, Developer has deposited $10,000 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. The Deposit shall be applied by the HRA for the payment of out-of-pocket expenses relating to this Agreement and paid or incurred by the HRA for environmental, geotechnical, pre-Closing legal, or other related services between March 1, 1998 and the earlier of (a) the Closing Date, or (b) the date of termination of this Agreement. Each time that the Deposit is reduced to $1,000, the HRA shall give Developer written notice, and Developer shall immediately contribute an additional $10,000. The HRA shall provide Developer with a reasonably detailed itemization for any amounts spent from the Deposit. Developer shall be given a credit against the Purchase Price for any amount contributed by it to the Deposit. In the event this Agreement is terminated prior to the Closing Date for any reason other than a default by Developer, the HRA shall return to Developer any amount remaining in the Deposit in excess of accrued expenses payable hereunder. If this Agreement terminates prior to the Closing Date as the result of a default by Developer, Developer shall forfeit its right to return of any funds from the Deposit. The HRA's rights under this Section 4.4 shall not limit any other remedy to which it is entitled under this Agreement or at law or equity due to an Event of Default by Developer, except to the extent that the HRA's damages are reduced by any amounts received under this Section 4.4. The prior Reimbursement Agreement between the parties is hereby terminated. 13 . . . Resolution 98-10 EXHIBIT B November 10, 1998 Section 4.5. Escrow Aereement. On the date hereof, the Parties and U.S. Bank (the "Bank") have executed an Escrow Agreement and Developer has deposited $100,000 with the Bank pursuant to the Escrow Agreement to secure Developer's obligations under this Agreement. The HRA' s rights with respect to the Escrow Agreement shall not limit any other remedy to which it is entitled under this Agreement or at law or equity due to an Event pf Default by Developer, except to the extent that the HRA' s damages are reduced by its recovery under the Escrow Agreement. ARTICLE V Agreement for Payments in lieu of Taxes Section 5.1. Execution of Agreement. Developer agrees, upon the Closing Date, to execute and deliver the Agreement for Payments in lieu of Taxes in the form attached as Exhibit B. The Agreement shall provide that Developer shall pay $5,000 to the HRA on each of May 15, 2000 and October 15,2000, and $7,050 on each of May 15,2001 and October 15,2001, in lieu of real estate taxes on the Development Property. The Agreement shall also provide that on May 15 and October 15 of each year (or any other date on which real estate taxes are normally payable to the County) beginning in 2002 and continuing for as long as the Development Property is exempt from real estate taxes, Developer shall pay the HRA the amount which is adjusted from the amount payable in the prior year by the same percentage increase or decrease in the City's tax rate from the prior year. Developer agrees to pay interest at the rate of six percent per annum, plus reasonable attorney's fees and other costs of collection, on any amount that is not paid when due. The provisions of this Section 5.3 shall continue indefinitely, shall run with the land, and shall be binding on Developer's successors and assigns. ARTICLE VI Insurance. Section 6.1. Insurance. (a) Developer shall provide and maintain, or cause to be maintained, at all times during the process of constructing the Improvements, at its sole cost and expense, and, from time to time at the request of the HRA, furnish the HRA with proof of payment of premiums on: (i) Builder's risk insurance, written on the so-called "Builder's Risk Completed Value Basis", in an amount equal to one hundred percent (100%) of the insurable value or one hundred percent (100%) of the full replacement cost of the Improvements at the date of completion, with a deductible amount of not more than $25,000, and with coverage available in nonreporting form on the so-called "all risk" form of policy; (ii) Comprehensive general liability insurance (including operations, contingent liability, operations of subcontractors, completed operations and 14 Resolution 98-10 EXHIBIT B November 10, 1998 . contractual liability insurance) together with an Owner's and Contractor's Protective Policy with limits against bodily injury and property damage of not less than $5,000,000 for each occurrence (to accomplish the above-required limits, an umbrella excess liability policy may be used). The interest of the HRA shall be protected in accordance with a clause in form and content satisfactory t~ the HRA; and (iii) Worker's compensation insurance, with statutory coverage. The policies of insurance required pursuant to clauses (i) and (ii) above shall be in form and substance satisfactory to the HRA and shall be placed with financially sound and reputable insurers licensed to transact business in the State. The policy of insurance required pursuant to clause (i) above shall contain an agreement of the insurer to give not less than thirty (30) days' advance written notice to the HRA and Developer in the event. of cancellation of such policy or change affecting the coverage thereunder. (b) Upon completion of construction of the Improvements and prior to December 31, 2001, Developer shall maintain, or cause to be maintained, at its sole cost and expense, and from time to time at the request of the HRA shall furnish proof of the payment of premiums on insurance as follows: . (i) Insurance against loss and/or damage to the Improvements under a policy or policies covering such risks as are ordinarily insured against by similar businesses, including (without limiting the generality of the foregoing) fire, extended coverage, vandalism and malicious mischief, explosion, water damage, demolition cost, debris removal, and collapse in an amount not less than 90 percent of the full replacement cost of the Improvements, but any such policy may have a deductible amount of not more than $25,000. No policy of insurance shall be written so that the proceeds thereof will produce less than the minimum coverage required by the preceding sentence, by reason of co-insurance provisions or otherwise, without the prior consent thereto in writing by the HRA. The temi "full insurable replacement value" shall mean the actual replacement cost of the Improvements (excluding foundation and excavation COsts and other uninsurable items) and equipment. (ii) Comprehensive general public liability insurance, including personal injury liability for injuries to persons and/or property, including any injuries resulting from the operation of automobiles or other motorized vehicles on or about the Development Property, in the minimum amount for each occurrence of $5,000,000. . (Hi) Worker's compensation insurance respecting all employees of Developer in amounts not less than the minimum required by statute. (c) All insurance required in this Article VI shall be taken out and maintained in responsible insurance companies selected by Developer which are authorized under the 15 Resolution 98-10 EXHIBIT B November 10, 1998 . laws of the State to assume the risks covered thereby. At the first time that any insurance is required to be in effect hereunder, Developer will deposit with the HRA a certificate or certificates or binders of the respective insurers evidencing that such insurance is in force and effect. Unless otherwise provided in this Article VI, each policy shall contain a provision that the insurer shall not cancel or modify it without giving written notic~ to Developer and the HRA at least thirty (30) days before the cancellation or modification becomes effective. Upon the HRA's request, Developer shall furnish the HRA evidence satisfactory to the HRA that any policy required hereunder is in effect. In lieu of separate policies, Developer may maintain a single policy, or blanket or umbrella policies, or a combination thereof, which provide the total coverage required herein, in which event Developer shall deposit with the HRA a certificate or certificates of the respective insurers as to the amount of coverage in force upon the Improvements. . (d) In the event the Improvements or any portion thereof is destroyed by fire or other casualty, then Developer shall within sixty (60) days after such damage or destruction, commence to repair, reconstruct and restore the damaged Improvements to substantially the same or improved condition or utility value as they existed prior to the event causing such damage or destruction and, to the extent necessary to accomplish such repair, reconstruction and restoration, Developer shall, subject to the rights of the Holder of a First Mortgage, apply the Net Proceeds of any insurance relating to such damage or destruction to the payment or reimbursement of the costs thereof. Developer shall complete the repair and reconstruction of the Improvements, whether or not the Net Proceeds of insurance received by Developer for such purposes are sufficient to pay for the same. Any Net Proceeds remaining after completion of construction shall be disbursed to Developer, subject to the rights of the Holder of the First Mortgage. The HRA agrees to subordinate its rights under this paragraph to the Holder of a First Mortgage, but only to the extent of amounts owing to the Holder under the First Mortgage. ARTICLE VII Undertakings of the HRA Section 7.1. Sale of Develooment Prooerty. As consideration for the purchase of the Development Property and construction of the Improvements by Developer, the HRA agrees to complete, subject to the provisions of Section 7.2 below, the following actions: (a) Sale of the Development Property to Developer pursuant to the Deed on the Closing Date. . (b) Use reasonable efforts with the City so that the Improvements may constitute a permitted use under the zoning ordinance of the City, and to permit Developer to obtain tax-exempt bond financing through the City. Section 7.2. Limitations on Financial Undertakings of the HRA. The provisions of Section 7.1 of this Agreement notwithstanding, the HRA shall have no obligation to Developer 16 . . . Resolution 98-10 EXHIBIT B November 10,1998 under this Agreement to take any action provided for in this Agreement except upon existence of the following conditions: (a) Developer has satisfied all conditions precedent under this Agreement; (b) No Event of Default has occurred and is then continuing beyond the cure period provided in Section 10.2; (c) The HRA and Developer have received all necessary approvals from the City, the County Assessor and other authorities to implement this Agreement; and (d) The HRA is not the subject of any court or administrative proceeding seeking to enjoin or otherwise prevent the HRA from taking any action under this Agreement; The parties agree that the failure of the Closing to occur due to any of the above reasons shall not constitute an event of default by the HRA. Section 7.3. HRA to Maintain Existence. The HRA covenants and agrees that it shall at all times do or cause to be done all things within its statutory powers necessary to preserve and keep in full force and effect its existence, or to assure the assumption of its obligations under this Agreement by any public body succeeding to its powers. Section 7.4. HRA's Option to Terminate. This Agreement may be terminated by the HRA by written notice to Developer if the HRA is in compliance with all material terms of this Agreement and Closing has not occurred by December 31, 1998; provided, however, that temiination of this Agreement pursuant to this Section 7.4 shall not affect the rights of the HRA to institute any action, claim or demand for damages suffered as a result of breach or default of the terms of this Agreement by Developer. ARTICLE VIII Mortgage Financing Section 8.1. AD~roval of Mortgage. Any First Mortgage prior to issuance of the Certificate of Completion shall require the prior written approval of the HRA's Director. Developer may rely upon any approval granted hereunder by the HRA's Director without additional action by the HRA. Approval shall not be unreasonably withheld or delayed, and shall be given if: (a) the HRA's Director first receives a copy of all mortgage documents; and (b) the HRA's Director determines that the terms of the First Mortgage conform and are subject to the terms of this Agreement, except to the extent the HRA agrees to subordinate its interest to the terms of the First Mortgage. The Holder of the First Mortgage (or any nominee or agent controlled by the Holder) shall not be obligated to undertake or co.ntinue construction or completion of the Improvements 17 . . . Resolution 98-10 EXHIBIT B November 10, 1998 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. Section 8.2. Notice of Default: COpy to Mortgagee. Whenever the HRA shall deliver. any notice or demand to Developer with respect to any breach or default by Developer in its obligations or covenants under this Agreement, the HRA shall at the same time forward a copy of such notice or demand to each known Holder of any First Mortgage at the last address of such Holder shown in the records of the HRA. Section 8.3. Mortgagee's Option to Cure Defaults. After any breach or default referred to in Section 8.2 hereof, each such Holder shall (insofar as the rights of the HRA are concerned and subject to any rights of the Mortgagor under such Mortgage) have the right, at its option, for a period of 90 days after notice of such default pursuant to Section 8.2 hereof, to cure or remedy such breach or default and to add the cost thereof to the Mortgage debt and the lien of its Mortgage. If a default is not susceptible of cure within such 90-day period, the Holder shall have such period of time as is necessary to cure such default provided the Holder promptly commences the cure and thereafter proceeds to cure such default as soon as reasonably possible and provided such failure to cure within 90 days does not jeopardize the purposes of the Agreement or the Plan. However, if the breach or default is with respect to construction of the Improvements, nothing contained in this Section or any other Section of this Agreement shall be deemed to permit orauthorize 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 ~nterest of Developer under the terms of the Agreement, 18 . . . Resolution 98-10 EXHIBIT B November 10, 1998 the Holder shall be permitted to assign its interest in the Agreement with the consent of HRA, which consent shall not be unreasonably withheld or delayed. In exercising its judgment as to whether or not to grant such consent, the HRA shall take into account only the financial condition and experience of the proposed assignee and its capacity to perform the obligations remaining to be performed under the Agreement at the time of such assignment; provided.that, after the Certificate of Completion has been issued, the experience of the proposed assignee shall no longer be a factor considered by the HRA as to whether or not grant such consent. In addition, the Holder may assign its interest at any time without the consent of the HRA to a person with a verifiable net worth in excess of $5,000,000. Any such assignee shall agree in writing with the HRA, for itself and its successors and assigns, to be bound by the terms and conditions of the Agreement, the Deed, the Agreement for Payments in lieu of Taxes, and the Plan, and not to transfer, mortgage or otherwise convey any portion of the Development Property, except as permitted in the Agreement. Section 8.4. HRA's Ootion to Cure Default on Mortgage. Any Mortgage executed by Developer with respect to the Development Property, or any Improvements thereon, shall provide that, in the event that Developer is in default under any Mortgage authorized pursuant to this Article VIII, the mortgagee, within ten 00) days after it has declared or given notice to Developer of a default, shall notify the HRA in writing of: (a) the fact of the default; (b) the elements of the default; and (c) the actions required to cure the default. The HRA shall have the right to cure any such default which occurs prior to issuance of the Certificate of Completion. The HRA shall have a period of 45 days after notice from a Holder to effect a cure, provided that the HRA gives Developer advance written notice of its intent to cure. In the event of such cure prior to the issuance of the Certificate of Completion, the HRA shall thereupon be entitled, in addition to and without limitation upon any other rights or' remedies to which it may be entitled, to reimbursement from Developer or any successor or assignee of any costs and expenses incurred by the HRA in curing 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 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 encumbrance and not be in default hereunder provided Developer first posts a bond or provides other security to the HRA or to the Holder, or to an agent of the Holder, including, without limitation, a title insurance company, which the HRA reasonably determines is adequat~ to protect the interest of the HRA. 19 . . . Resolution 98-10 EXHIBIT B November 10, 1998 ARTICLE IX Restrictions on Transfer: Indemnification Section 9.1. Restrictions on Transfer. Until the Certificate of Completion has been issued by the HRA, this Agreement and Developer's interest in the Development Property (or any part thereof) may not be sold, transferred or assigned by Developer without the prior written consent of the HRA, which consent may be granted or withheld by the HRA in its sole discretion. After the Certificate of Completion has been issued by the HRA, but prior to December 31, 2001, this Agreement and Developer's interest in the Development Property (or any part thereof) may be sold, transferred or assigned by Developer, provided that the purchaser, as of the date of such transfer, is reasonably determined by the HRA to be of sufficient financial condition, experience, and reputation to perform fully under this Agreement and the Agreement for Payments in lieu of Taxes, 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 Agreement for Payments in lieu of Taxes, and the Plan, and not to sell, transfer, mortgage or otherwise assign any portion of the Development Property except as permitted herein. In the event of a transfer pursuant to this paragraph, Developer shall be released from any future obligation or liability hereunder to the extent of the interest purchased. After the Certificate of Completion has been issued by the HRA, but prior to December 31, 2001, 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 Agreement for Payments in lieu of Taxes. 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 any part of the Improvements. Section 9.2. Indemnification. Developer hereby agrees to indemnify, defend and hold harmless the HRA, and its officials, employees and agents, against any and all claims, demands, lawsuits, judgments, damages, penalties, costs and expenses, including reasonable attorneys' fees, arising out of actions or omissions by Developer, its employees and agents, in connection with the Project, except to the extent of any actions or omissions by the HRA. This provision shall continue indefinitely after the termination of this Agreement. 20 . . . Resolution 98-10 EXHIBIT B November 10,1998 ARTICLE X Events of Default Section 10.1. Events of Default Defined. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement, anyone or more of the following events: (a) Failure by Developer to pay the Purchase Price and otherwise perform on the Closing Date. (b) After the Closing Date, failure by Developer to perform its obligations under the Agreement for Payments in lieu of Taxes attached as Exhibit B. (c) Subject to Unavoidable Delays, and extensions agreed to by the Parties, failure by Developer to commence and complete construction of the Improvements on the Development Property and the Adjacent Parcel pursuant to the terms, conditions and limitations of Article IV of this Agreement. (d) Until December 31, 2001, failure by Developer to observe or perform any material covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. (e) Indefinitely, failure by Developer to pay when due the payments in lieu of taxes required to be paid pursuant to Section 5.3. (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. (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. 21 Resolution 98-10 EXHIBIT B November 10, 1998 . Section 10.2. Remedies on Default. Whenever any Event of Default occurs, the HRA, subject to any rights of the Holder of a First Mortgage which has been approved by the HRA pursuant to Section 8.1 of this Agreement, may take anyone or more of the following actions (but only if the HRA is not then in default and only after provision of60 days' written notice which sets forth the nature of the default to Developer in the case of an Event of Default under Section 10.1 (a), (b), (c), (d), or (e), and then only ifsuch an Event of Default has not been cured within said 60 days or, if such an Event of Default cannot be cured within 60 days, Developer does not provide assurances to the HRA reasonably satisfactory to the HRA that such an Event of Default will be cured as soon as reasonably possible and that it will not jeopardize the purposes of this Agreement and of the Plan): (a) The HRA may suspend its performance under the Agreement until it receives assurances from Developer, deemed adequate by the HRA, that Developer will cure its default and continue its performance under the Agreement. (b) If the Event of Default occurs prior to the Closing Date, the HRA may cancel and rescind the Agreement. . (c) If the Event of Default occurs after Closing Date but prior to issuance of the Certificate of Completion, the HRA may reenter and take possession of the 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 Development Property at the best price obtainable (provided such sale is permitted by applicable law) and as soon as reasonably possible, such sale to be on such terms and conditions as the HRA deems reasonable and appropriate to satisfy the provisions of the Plan. The HRA shall apply the proceeds of such sale first to reimburse the HRA for all costs and expenses incurred by the HRA (less any amount received by the HRA from any security provided by Developer) including but not limited to taxes, assessments, utility charges, payments made to discharge any encumbrances or liens, reasonable attorneys' fees and expenses; second to the Holder of a First Mortgage to the extent of the unpaid mortgage; third to reimburse Developer in an amount equal to the Purchase Price plus other reasonable acquisition and construction costs incurred by Developer in connection with the Project including architects' and engineers' expenses; and the balance to be retained by the HRA. (d) The HRA may initiate such action, including legal or administrative action, as is necessary for the HRA to secure performance of any provision of this Agreement or recover any amounts due under this Agreement from Developer or under any security provided by Developer. . (e) Sue for damages, including delinquent payments in lieu of taxes pursuant to Exhibit B, provided that any damages shall be reduced to the extent of any amount recovered by the HRA under any security provided by Developer. Section 10.3. No Remedv Exclusive. No remedy herein conferred upon or reserved to the HRA is intended to be exclusive of ~y other available remedy or remedies, but each and 22 Resolution 98-10 EXHIBIT B November 10, 1998 . every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. Section 10.4. No Additional Waiver Implied 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. ARTICLE XI Additional Provisions Section 11.1. Equal Employment Opportunity. 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 Speculation. Developer's purchase of the Development Property, and its undertakings pursuant to this Agreement, are and will be used for the sole and express purpose of redevelopment of the Development Property and not for speculation in land holdings. Section 11.3. Titles of Articles and Sections. Any titles of the several parts, Articles and Sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 11.4. Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand or other communication under the Agreement by either party to the other shall be sufficiently given or delivered if it is in writing dispatched by registered or . certified mail, postage prepaid, return receipt requested, or delivered personally; and, (a) in the case of Developer, is addressed to or delivered personally to Developer at 845 North Meadow Lane, Golden Valley, Minnesota 55422, with copies to Mark F. Palma, Hinshaw & Culbertson, 222 South Ninth Street, Suite 3300, Minneapolis, Minnesota 55402; and (b) in the case of the HRA, is addressed to or delivered personally to the HRA to Housing and Redevelopment Authority In and For the City of Golden Valley, 7800 Golden Valley Road, Golden Valley, Minnesota 55428, Attention: Director, with copies to Allen D. Barnard, Best & Flanagan LLP, 4000 U.S. 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. 23 ,';.'''o'.'?,;. . . . Resolution 98-10 EXHIBIT B November 10, 1998 Section 11.5. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 11.6. Modification. If the HRA is requested by the Holder ofa 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. Interpretation and Amendment. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. This Agreement constitutes the entire agreement of the Parties on the subject matter hereof, superseding any prior oral or Written agreements. This Agreement can be modified only by a writing signed by both Parties. Section 11.8. Severabilitx. 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, 200 I, except for Section 5.3, which shall continue indefinitely. This Agreement shall survive the Closing Date and the HRA's delivery of any Deed to Developer. Section 11.10. Binding Effect. Subject to the provisions of Article IX, this Agreement is binding upon, and shall inure to the benefit of, the successors and permitted assigns of the Parties. Section 11.11. Consents. Any consent or approval required of a Party under this Agreement shall not be unreasonably withheld or delayed. Section 11.12. Certificates. Upon reasonable request from time to time, the HRA shall execute and deliver written certificates to parties designated by Developer concerning whether the Agreement is in effect, whether any defaults exist under the Agreement and other similar matters. ARTICLE XII Termination of Agreement Section 12.1. Develooer's Options to Terminate. This Agreement may be terminated by Developer by written notice to the HRA if Developer is in compliance with all material terms of this Agreement and no Event of Default by Developer is then existing; and (a) Subject to Section 7.2, the HRA fails to comply with any material term of this Agreement, and, after Written notice by Developer of such failure, the HRA has failed to cure such non-compliance within 60 days of receipt of such notice, or, if such 24 . . . Resolution 98-10 EXHIBIT B November 10,1998 non-compliance cannot reasonably be cured by the HRA within 60 days, the HRA has not, within 60 days of receipt of such notice, provided assurances, reasonably satisfactory to Developer, that such non-compliance will be cured as soon as reasonably possible; (b) Parties; Closing has not occurred by December 31, 1998, unless extended by. the (c) If Developer's title objections are not waived by Developer or cured by the HRA pursuant to Section 3.1; (d) Subject to Section 3.2, if Developer reasonably determines by October 31, 1998 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 or toxic waste on the Development Property; or In the event of a default by the HRA prior to the Closing Date which is caused by the HRA's failure to pay any amount which it is required to pay under this Agreement, Developer, in lieu of terminating this Agreement, may pay such amount on behalf of the HRA and reduce the Purchase Price. Section 12.2. Effect of Termination. Except as provided in Sections 4.4 and 9.2, if this Agreement is terminated pursuant to this Article XII, this Agreement shall be from such date forward null and void and of no further effect; provided, however, that termination of this Agreement pursuant to this Article XII shall not affect the rights of Developer to institute any action, claim or demand for damages suffered as a result of breach or default of the terms of this Agreement by the HRA. IN WITNESS WHEREOF, the HRA has caused this Agreement to be duly executed in its name and behalf and its seal to be hereunto duly affixed and Developer has caused this Agreement to be duly executed in its name and behalf, on or as of the date first above written. THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By Its 25 . . Resolution 98-10 EXHIBIT B November 10, 1998 THE ANIMAL HUMANE SOCIETY By Its STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this _ day of . 1998, by . a of THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY, on behalf of the organization. Notary Public STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this _ day of . 1998, by . a of THE ANIMAL HUMANE SOCIETY, a Minnesota nonprofit corporation, on behalf of the corporation. Notary Public DRAFTED BY: Best & Flanagan LLP 4000 U.S. Bank Building 601 Second Avenue South Minneapolis, Minnesota 55402-4331 . 11800\960703\AnimalHumaneSocietyPrivateDevelopmentAgreement.doc 26 . . . Resolution 98-10 EXHIBIT B November 10, 1998 EXHIBIT A LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY Lot 4, Block 1, North Wirth Parkway Fourth Addition, subject to an exclusive easement for the benefit of the Golden Valley Housing and Redevelopment Authority, its assigns and lessees, for the purposes of leasing, collecting rents, and maintaining a cellular tower, equipment building and other related uses over that part of the above property described as follows: . Said easement shall terminate after it ceases to be used for a cellular phone tower, or related use, for an uninterrupted period of at least two years. Subject also to existing easements, restrictions, conditions and covenants, of record, if any. A-l Resolution 98-10 EXHIBIT B November 10, 1998 . EXHIBIT B AGREEMENT FOR FA YMENTS IN LIEU OF TAXES THIS AGREEMENT is made and entered into as of this_ day of . 1998, by and between THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN V ALLEY, a public body corporate established and existing under Minnesota Statutes, Section 469.001 et seq. (the "HRA"), and THE ANIMAL HUMANE SOCIETY OF HENNEPIN COUNTY, a Minnesota nonprofit corporation ("Developer"). WHEREAS, the HRA and Developer previously entered into The Animal Humane Society Private Development Agreement (the "Development Agreement"), recorded in the . Office of the County Recorder in and for the County of Hennepin and state of Minnesota as Document No. . for the following described property: Lot 4, Block 1, North Wirth Parkway Fourth Addition, Hennepin County, according to the recorded plat thereof (the "Development Property"); and . WHEREAS, the Development Agreement provides that the HRA and the Developer will enter into an agreement requiring the Developer to make certain payments to the HRA in lieu of real estate taxes during the period in which the Development Property is exempt from real estate taxes; and WHEREAS, as of the date of this Agreement, the Development Property is exempt from the payment of real estate taxes; 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. Payments in Lieu of Taxes. Developer shall pay $5,000 to the HRA on each of May 15,2000 and October 15, 2000, and $7,050 on each of May 15,2001 and October 15, 2001, in lieu of real estate taxes on the Development Property. On May 15 and October 15 of each year (or any other date on which real estate taxes are nonnally payable to Hennepin County, Minnesota) beginning in 2002, Developer shall pay the HRA the amount which is adjusted from the amount payable in the prior year by the same percentage increase or decrease in the City of Golden Valley's tax rate from the prior year. Developer shall have no obligation to pay any amount to the HRA on any of the above payment dates if the Development Property was not exempt from real estate taxes on the assessment date which relates to such payment date. If the Development Property is exempt from the payment of real estate taxes in part but not all of a year, the amount payable under this Agreement shall be pro rated and payable on a . per diem basis. B-1 . . . Resolution 98-10 EXHIBIT B November 10, 1998 2. Interest and Costs of Collection. Developer agrees to pay interest at the rate of six percent per annum, plus reasonable attorney's fees and other costs of collection, on any amount that is not paid when due. 3. Bindinli! Effect. This Agreement is binding upon, and shall inure to the benefit of, the successors and assigns of the parties. The obligations contained in this Agreement shall continue indefinitely and shall run with the land. This Agreement shall no longer bind Developer upon a transfer of the Development Property (a) if permitted under the terms of the Development Agreement, or (b) after the expiration of the Development Agreement. This Agreement shall create no personal liability for Developer's members or directors. 4. Interpretation and Amendment. This Agreement shall be interpreted in accordance with Minnesota law. This Agreement may be amended only by a written document or instrument, signed by both parties. IN WITNESS WHEREOF, the parties have caused the execution of this instrument as of the day and year first above written. THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By Its THE ANIMAL HUMANE SOCIETY By Its B-2 . . . Resolution 98-10 STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN) EXHIBIT B November 10, 1998 The foregoing instrument was acknowledged before me this _ day of . 1998, by . a of THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY, on behalf of the organization. STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN) Notary Public The foregoing instrument was acknowledged before me this _ day of . 1998, by . a of THE ANIMAL HUMANE SOCIETY, a Minnesota nonprofit corporation, on behalf of the corporation. DRAFTED BY: Best & Flanagan LLP 4000 U.S. Bank Building 601 Second A venue South Minneapolis, Minnesota 55402-4331 Notary Public B-3 . . . Resolution 98-10 EXHIBIT B November 10, 1998 EXHIBIT C CERTIFICATE OF COMPLETION THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN V ALLEY, a public body corporate (the "HRA"), and THE ANIMAL HUMANE SOCIETY OF HENNEPIN COUNTY, a Minnesota nonprofit corporation ("Developer"), previously entered into The Animal Humane Society Private Development Agreement (the "Agreement"), recorded in the Office of the County Recorder in and for the County of Hennepin and State of Minnesota, as Document Number , for the following described property: Lot 4, Block 1, North Wirth Parkway Fourth Addition, Hennepin County, according to the recorded plat thereof. The Agreement contains certain covenants which, if not performed by Developer, or its successors and assigns, would result in a forfeiture and right of re-entry by the HRA, its successors and assigns. As of the date hereof, Developer has performed all of such covenants contained in the Agreement to the satisfaction of the HRA, including the covenants in Article IV of the Agreement requiring completion of the construction of the improvements. NOW, THEREFORE, it is hereby certified that all of the covenants in the Agreement, including the covenants in Article IV requiring completion of the construction of the improvements, have been duly and fully performed by Developer as of the date hereof and that the provisions for forfeiture of title and right to re-entry by the HRA for breach of such covenants, and the letter of credit securing performance thereof, are hereby released absolutely and forever insofar as they apply to the property described above. The County Recorder in and for the County of Hennepin and State of Minnesota is hereby authorized to accept for recording and to record the filing of this instrument. This instrument shall be conclusive determination of the satisfactory termination of the covenants of Article IV of the Agreement requiring completion of the construction of the improvements. Notwithstanding the foregoing, the remaining covenants contained in the Agreement remain in full force and effect. C-l . . . Resolution 98-10 STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) EXHIBIT B November 10, 1998 THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By; Its: And: Its: The foregoing instrument was acknowledged before me this _ day of _, 19--, by and , respectively the and 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 LLP 4000 U.S. Bank Place 601 Second Avenue South Minneapolis, Minnesota 55402-4331 C-2 Resolution 98-10 EXHIBIT B EXHIBIT D November 10, 1998 DEVELOPMENT PLANS ~lJ ~:::o o lJ o (j') f"'T1 CJ (j') -I f"'T1 lJ r )> Z , r. , j I I I ~-------------//l j I It; I /"./ I' 1 I I - " ,,/ ,-' I: I - . I I , n -- . -.... H___ -.---.---{> .. . , i i lJ . /~. i ....--/ ... , I : n I. , l II I) :. /' !! if rl I .. . .1'4 ! I : I ~ -1 : I ! 6 i: i I 'I ' .; '.- i I; i j , I I I, I I I, 'I '1 I I" i~:1) ! i I t.v ! ::; l,j . I I i~ I ,......_.._. _ .~ L~~h 0'-" - - - - j ) j : //' ~--~--~L~- · ~ ! 01. . - .,/\J ~ ./'/ ma I, "':r:..! " , , ./'d" 1, \' I Ci ,./'/ ,-: "4' jJr"./' ~~9 ,./' I ,./'" 'I ./' L,/'. ./' H ~~ . '. ~~ 1 E8 z , ; ,/ /' , /' /" , , / / " ./' / / , ./' /' ./'/ '/~' ~' :t . 0-1 III; !~I I . . i tll ; ; I =1' ~ ,~. , ~A2 .~'"- ------.. - -- A-.u. ....... *OC8TY - - ... IIUDOW \Ale ......... '.,___ 00t.DItf IlIIMSNU . ~D SITE PlAN . ?::=.::....~O::-' tI1!IIm'JatD: ASSIL IIC. Rl1fStIt a...... AS!IIlC-IIt. ElLER.! BECKET IIIJDRUa AltCHlttCTWtI: -"'-- ., L ~..a_ sa $. ,., tr. 'l<ofIC." .....--.u ._ 'Z_''''' __ :;-----:;-:.---- ::;._..~.~::. ::::-'..~.~:~ =-~.:-~ =~,:-=::.. . .. . ..., ....... A4 ::. ": 1111-'- ___ {~ u ~;o o u o U1 fTi o Z o ;0 -I I fTi r fTi < > -I o Z N . Resolution 98-10 EXHIBI<ffD3IT B November 10, 1998 DEVELOPMENT PLANS If: I JJ! b-' I :---~ i........ '. _ .1 i I , H il ~- Ii .:=: = ; = =~~:: ~ -= ;- L':-::: .--" II ~- ; ~: 'I '1 if ,I - , ;; :-~ili -- j I j I :10 == r- i i-j -~. I W--J-,.; ICJ~ 1 , rl . I ~ .1 M'. i I , ., 1 . I i ,- I ~ , I .--.--- .~ ADOQlCIII.....-..-..M -_.~ ~~':":.t1:m PROPOSED NORlll ok WEST ElEVATIONS -. ~. -\. 0-2 ;;.:;.:;=::....:.:::--:-;0_.. ~0 ~;o o \J o U1 rl o I~ IfTi U1 -I fTi r fTi < > ::j o z ~~Mle_ MDJ:lDf~ ASSOC.. IC. !$'(.'--- 'I' .._._""", _ ....lft_ 1-....... , I , ' 7i 1 i '-' j , I ---; ;". ..-t --~ "~ -.-4 , "' "I , - ,-....,.." I : r---- ! I d :i ' ! I :1 '.j H .-i ~ :1 'i .~ [111 , I ~ a ~ ;; :~ ~ ~ - I -. I ~: ,-.- -~~ ---:' ~ ~; :.::::: , : : j -..... . . ~71; =:J:-- ._. ~ "'i . d:;. ~I.~=-" =_t~.~:~=., ~~=( .4~~~T ~.:-~ ... ~ !'IIIiI:I;1 .1~'Ii! I- . ... ., . i~ sl; I' MJORUD ARCHfTttTUK ,~_.:too......_ =~,~..:-';', . . . Resolution 98-10 EXHIBIT B November 10, 1998 EXHIBIT E LIMITED WARRANTY DEED FOR V ALUABLE CONSIDERATION, THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN V ALLEY, a public body corporate created pursuant to Minnesota Statutes, Section 469.001 et seQ. ("Grantor"), hereby grants, bargains and conveys to The Animal Humane Society, a Minnesota nonprofit corporation ("Grantee"), real property in Hennepin County, Minnesota, described as follows (the "Property"): Lot 4, Block 1, North Wirth Parkway Fourth Addition, Hennepin County, 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 North Wirth Parkway Redevelopment Plan adopted by Grantor in 1978, as amended (the "Plan"), and any covenants, conditions, or restrictions contained in the The Animal Humane Society Private Development Agreement dated . 1998, between Grantor and Grantee or Grantee's assignor (the "Agreement"). Provided: 1. It is understood and agreed that this Deed is subject to the restrictions, reservations and encumbrances of record, ifany, all building and zoning laws and ordinances, all other local, state and federal laws and regulations, and the covenants, conditions, restrictions and provisions of the Agreement. It is also understood and agreed that, prior to December 31, 2001, Grantee shall not sell, transfer, mortgage or otherwise convey the Property, or any part thereof or interest therein, except as permitted by the Agreement. Grantee hereby covenants and agrees to begin and diligently prosecute to completion the development of the Property at such times and as otherwise provided in the Agreement. Promptly after completion of the Improvements (as defined in the Agreement) in accordance with the Agreement, Grantor will furnish Grantee with a Certificate of Completion, as provided in the Agreement, which shall be the conclusive determination of satisfaction and termination of the agreements and covenants in and pursuant to the Agreement with respect to the obligations of Grantee to construct the Improvements, and the dates for the commencement and completion thereof. 2. If an "Event of Default" by Grantee, as defined in Section 10.1 of the Agreement, which is not cured within the period provided in Section 10.2 of the Agreement, exists prior to E-l Resolution 98-10 EXHIBIT B November 10, 1998 . the recording of the Certificate of Completion, then Grantor shall have all of the rights and remedies specified in Section 10.2 of the Agreement. 3. Grantee hereby agrees to do the following: . (a) Maintain insurance of such types and amounts as specified in Article VI of the Agreement; (b) Pay real estate taxes and special assessments on the Property when due, if not exempt from such taxes and assessments, and not seek or cause a reduction in such taxes, except as permitted under the Agreement; (c) Devote the Property to only such uses as are permitted under the Agreement. The parties agree that the covenants contained in this Section shall terminate on December 31, 2001. 4. There shall be no discrimination in the use of the Property by Grantee on account of race, color, religion, sex, age, national origin, or political affiliation during the period that the Plan remains in effect. . The parties agree that all of the covenants and restrictions contained in this Deed shall be binding upon Grantee, its successors and assigns,. for the benefit of Grantor, its successors and assigns, and shall also be deemed to run with the land. IN WITNESS WHEREOF, Grantor has caused this Deed to be duly executed on its behalf by its duly authorized representatives this _ day of , 19_. THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By: Gloria Johnson Its Chair By: . William S. Joynes Its Director E-2 . . . Resolution 98-10 EXHIBIT B November 10, 1998 STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) . The foregoing instrument was acknowledged before me this _ day of , 19-, by Gloria Johnson 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 LLP 4000 U.S. Bank Place 601 Second A venue South Minneapolis, Minnesota 55402-4331 E-3