99-12 HRA Resolution
Resolution 99-12
November 9,1999
. Commissioner LeSuer introduced the following and moved its adoption:
RESOLUTION CONDITIONALLY APPROVING SALE OF CERTAIN
REAL PROPERTY IN THE NORTH WIRTH PARKWAY
REDEVELOPMENT AREA
(Breck School)
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, Breck School (hereinafter referred to as "Developer") has made a
proposal for the construction an ice arena of 36,000 to 60,000 square feet at Lot 1, Block
1, North Wirth Parkway 4th Addition; 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 9469.029, the HRA has duly given
notice in the form attached as Exhibit A of a public hearing on the proposed sale of the
property legally described as Lot 1, Block 1, North Wirth Parkway 4th Addition (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 9469.029; and
2. The use of the Subject Property proposed by the Developer is reasonably
within the overall guidelines ofthe North Wirth Parkway Redevelopment Plan; and
3. The use value of the Subject Property is hereby established as $520,000;
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Resolution 99-12 - Continued
November 9, 1999
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
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 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.
William S. Joyne
Motion for the adop' n of the foregoing resolution was seconded by Commissioner
Anderson; and upon a vote taken thereon, the following voted in favor thereof: Anderson,
Johnson, LeSuer and Micks; the following was absent: Bakken; 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.
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Resolution 99-12 (Con't.)
November 9,1999
EXHIBIT "B"
BRECK SCHOOL PRIV ATE DEVELOPMENT AGREEMENT
THIS AGREEMENT, effective as of , 1999, 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 BRECK SCHOOL, a Minnesota nonprofit
corporation, with its principal office located at 123 Ottawa Avenue North, 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 BRA a proposal for the purchase of a site in
the Redevelopment Area legally described as Lot 1, Block 1, North Wirth Parkway 4th Addition,
Hennepin County, Minnesota (the "Development Property''), and the construction on the
Development Property of an ice arena with between 36,000 and 60,000 square feet, together with
parking that meets City P.U.D. requirements and certain other improvements (the "Project"); 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 hereby agree as follows:
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Resolution 99-12 (Con't.)
EXHIBIT "B"
November 9,1999
TABLE OF CONTENTS
Page
Article I - Definitions.. .. . . . . . ~ .. . . . . .. . .. .. .. . . .. . . . . . . . ..... .. . .. .... . . . . . . . .. . . . . ... . . . .;, .. .. . . . . . .... " . . .4
1.1 Definitions....................................... ... .............................. ........ ..............4
Article II - Representations and Warranties................................................................ 6
2.1 Representationsand Warranties by the HRA. .... ................ ......................... ......6
2.2 Representations and Warranties by Developer ............ ................. ........... ............7
Article III - Title and Other Matters...................... .................. ...... ...... .....................8
3.1 Marketable Title.......... ................... ... .... ..... ............... ............ .......... .........8
3.2 Survey and Soil Analysis...... ................... ... ..... ........ ........ ....... .......... ...........8
3.3 Environmental and Geotechnical Analvsis............................. ..........................:8
3.4 P. U.D. Approval ...................................................................................... 9
3.5 Real Estate Taxes and Special Assessments.................................................... 10
3.6 Deed................................................................................................... 10
3.7 Recording............................................................................................. 10
3.8 Use ................................................ ...... ............................ '" ................ 10
Article IV.. Construction of Improvements .. ...... ................. ................. ...... .............. 11
4.1 Construction of Improvements .......... .................................... ............. ......... 11
4.2 Commencement and Completion of Construction.............................................. 11
4.3 Certificate of Completion ..................... ... ................................. ,.......... .,.... 11
4.4 Escrow Agreement ................................................................................. 12
Article V - Insurance................... ....................................... ........... ................... 12
5.1 Insurance.............................................................................................. 12
Article VI - Undertakings of the HRA ...... ..... ................ ..... ........................... ......... 14
6.1 Sale of Development Property.. ..... ......................................... .......... ..... ...... 14
6.2 Limitations on Financial Undertakings of the HRA............................................ 14
6.3 HRA to Maintain Existence ..... ....... ..... ...... ... ......................... ............... ......15
6.4 HRA's Option to Terminate ....................................................................... 15
Article VII - Mortgage Financing............................................ ... .......................... 15
7.1 Approval of Mortgage................ .............................................................. 15
7.2 Notice of Default COPY to Mortgagee ...........................................................16
7.3 Mortgagee's Option to Cure Defaults ............................................................ 16
7.4 BRA's Option to Cure Default on Mortgage ....... ............................................. 17
7.5 Subordinate Liens....... .......... .............................................. .... .......... ...... 17
Article VIII - Restrictions on Transfer................... ...... ............ ............................ ... 18
8.1 Restrictions on Transfer ........................................... .............. ....... .... ....... 18
8.2 Indemnification...................................................................................... 18
Article IX - Events of Default. . .......... .... ................. ...................... .......... ... .......... 18
9.1 Events of Default Defined........................................................ ............... ... 18
9.2 Remedies on Default. ..... ..... ... ........... ................. ..........,.... ....................... 19
9.3 No Remedy Exclusive.... ..................... .................. ... .........,.. ................. ...20
9.4 No Additional Waiver Implied by One Waiver .................................................20
Article X - Additional Provisions ......................................................................... 20
.10.1 Equal Employment Opportunity .................................................................20
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Resolution 99-12 (Con't.)
EXHIBIT "B"
November 9,1999
10.2 Not for Speculation .......... ....... ............... ...... ...... .... ........... .............. ..... ...20
10.3 Titles of Articles and Sections................................................................... 20
10.4 Notices and Demands ............................................................................. 20
10.5 Counterparts .... ...... ..... ................ ......................................................... 21
10.6 Modification............ ....... .............................................................. ....... 21
10.7 Interpretation and Amendment................................................................... 21
10.8 Severability......................................................................................... 21
10.9 Duration................. ......... ............ ....................................................... 21
10.10 Binding Effect. ................. .................................................................... 21
10.11 Consents......................... ... ...................... .......................................... 21
10.12 Certificates........................................................................................ 21
10.13 Time of the Essence...............................................;............................. 22
Article XI -Termination of Agreement.......... ............ ......... .... ...... .... .... .... ..............22
11.1 Developer's Options to Terminate............................................................... 22
11.2 Effect of Termination.. .. .. . .. . .. . .. .. . . . . . . . .. .. . . .. . . .. .. . . .. . . . . . . .. .. .. .. . .. . .. . . .. .. .. .. ... ... 23
Exhibit A - Certificate of Completion... ............................. .... ..... ........ ........ ........A-1
Exhibit B - Development Plans.. . . . .. .. . . . . . . . . . . .. .. . . .. . . . .. ... . . . . . . . . . ~ .. . . ... . . . .. .. ... . . . ... . . . . B-1
Exhibit C - List of Environmental Reports ......................................................... C-1
Exhibit D - Limited Warranty Deed. . . . .. . . . .. . . . .... . . . . . . . . . . . . . . . . . . . . . . " . . .. . . . . .. .. .. . . . . . . . . .. D-l
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Kesolution 99-12 (Con't.)
EXHIBIT "B"
November 9, 1999
ARTICLE I
Definitions
Section 1.1. Definitions. In this Agreement, unless a different meaning clearly
appears from the cOntext:
"Agreement" means this Private Development Agreement by and between the Housing
and Redevelopment Authority in and for the City of Golden Valley, Minnesota, and Breck
School, a Minnesota nonprofit corporation, as the same may be from time to time modified,
amended or supplemented.
"Certificate of Completion" means the certification, in the form of the certificate
contained in Exhibit A attached to and made a part of this Agreement, provided to Developer
pursuant to Section 4.3 of this Agreement upon satisfactory completion of the Improvements.
"City" means the City of Golden Valley, Minnesota.
"Closing" or "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 June 30,2000.
"County" means the County of Hennepin, Minnesota.
"Developer" means Breck School, 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, 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 are attached as Exhibit B 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.
"Development Property" means the real property described as Lot 1, Block 1, North
Wirth Parkway 4lh Addition, Hennepin County, Minnesota. .
"Event of Default" means an action by Developer listed in Section. 9.1 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 VII of this Agreement.
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Resolution 99-12 (Con't.)
EXHIBIT liB"
November 9,1999
"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 ice arena with between 36,000 and 60,000 square feet,
together with parking that meets City P.D.D. requirements, plus all other improvements,
including fixtures and equipment, to be constructed by Developer upon the Development
Property pursuant to this Agreement, as such improvements are defined in the Development
Plans.
"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 V of this Agreement and remaining after deducting
all expenses (including reasonable fees and disbursements of counsel) incurred in the collec~ion
of such proceeds.
"Parties" means the HRA and Developer.
"Party" 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.
"Proiect" means the construction and operation of the Improvements by Developer on the
Development Property pursuant to the terms of this Agreement.
"Purchase Price" means the sum of $520,000.
"Redevelopment Area" means the approximately 110 acres located in Golden Valley,
Minnesota that are subject to the Plan.
"State" means the State of Minnesota.
'Tax Increment District" means the North Wirth Tax Increment District.
"Tax Increment Financing Act" means the statutes located at Minnesota Statutes,
Sections 469.174 through 469.179, inclusive, as amended.
"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.
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KeSOIUtlOn l:Jl:J-12 (Can't.)
EXHIBIT liB"
November 9, 1999
"Unavoidable Delays" means actual delays due to events directly affecting the Project
which are beyond the reasonable control of the Party which is to perform, 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.
AR TI CLE II
Representations and Warranties
Section 2.1. Representations and Warranties by the HRA. The HRA represents and
warrants that:
(a) The HRA has the power to enter into this Agreement and carry out its
obligations hereunder.
(b) The Redevelopment Area constitutes a Redevelopment Project pursuant to
Minnesota Statutes, Section 469.002, and includes the Tax Increment District pursuant to
Minnesota Statutes, Section 469.042, and is an "existing project" pursuant to Minnesota
Statutes, Section 469.179.
( c) The HRA has examined this Agreement, and has determined that its terms and
provisions are in accordance with the objectives embodied in the Plan, arid 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.
(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 tenns, 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.
(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.
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Resolution 99-12 (Con't.)
EXHIBIT liB"
November 9,1999
Section 2.2. Representations and Warranties by 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 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 results
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 constitutes
a default under any of the foregoing.
(e) There are no legal proceedings pending, or known to be threatened or
contemplated, to which Developer is a party, or to which any property of Developer is
subject, which, if determined adversely, would individually or in the aggregate have a
material adverse effect on Developer's financial position, or prevent or impair
Developer's ability to perform any covenants or obligations under this Agreement.
(f) Developer has previously delivered to the HRA copies of its most recent
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.
(g) Developer will act in good faith and use all reasonable effort 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.
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Resolution 99-12 (Con't.)
EXHIBIT liB"
November 9,1999
ARTICLE III
Title and Other Matters
Section 3.1. Marketable Title. The HRA agrees to furnish to Developer, on or before
December 1, 1999, a commitment for the issuance of an owner's AL T A policy of title insurance
with respect to the Development Property issued by either Commonwealth Land Title Insurance
Company or Commercial Partners Title, LLC, as agent for Chicago Title Insurance Company,
showing marketable title in the HRA subject only to the following (the "Permitted
Encumbrances"):
(a) Building, zoning and similar laws and ordinances.
(b) Mineral rights reserved to the State of Minnesota.
(c) Easements of record which are agreed to by Developer as part of its title
reVIew process;
(d) Other restrictions, if any, expressly agreed to by Developer, including those
restrictions and reversionary rights contained in this Agreement.
The commitment shall include searches for bankruptcies; state and federal judgments; tax
and other liens; and for all special assessments, levied, pending (approved by the City Council),
or deferred. The commitment shall include full mechanic's lien coverage, shall delete any
exceptions for the rights of parties in possession and survey matters, and shall include copies of
all documents referred to therein. The cost and expense of the title commitment and the title
policy, based upon the Purchase Price only, shall be paid by the HRA. Any other title costs or
policies shall be paid by Developer.
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. The HRA has previously delivered to Developer a survey of the
Development Project. Any additional surveying shall be at Developer's sole cost and expense.
Section 3.3. Environmental and Geotechnical Analysis. The BRA has previously
made available to Developer copies of the written environmental reports and analyses
described in Exhibit C concerning the Development Property (the "Reports"). Pursuant to an
Access Agreement between the Parties, the HRA has also granted Developer access to the
Development Property to perform a reasonably complete geotechnical and environmental
analysis of the Development Property. When Developer receives a building permit from the
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Resolution 99-12 (Con't.)
EXHIBIT "B"
November 9,1999
City for construction of the Improvements, the HRA shall pay Developer the sum of $220,000
for anticipated soil correction expenses.
Except as disclosed in the Reports, to the knowledge of the HRA, without special
inquiry, no toxic or hazardous substances or wastes, pollutants or contaminants (including,
without limitation, asbestos, urea formaldehyde, the group of organic compounds known as
polychlorinated biphenyls, petroleum products including gasoline, fuel oil, crude oil and any
hazardous substance as defined in the various constituents of such products, and hazardous
substance as defined in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), 42D.S.C. ~ 9601-9657 (as amended) (collectively
"Hazardous Substances") have been generated, treated, stored, released or disposed of, or
otherwise placed, deposited in or located on the Property, nor to the HRA's knowledge,
without special inquiry, and as qualified above, has any activity been undertaken on the
Property that would cause or contribute to:
(a) the Development Property becoming a treatment, storage or
disposal facility within the meaning of the Resource Conservation and Recovery
Act of 1976 ("RCRA"), 42 D.S.C. ~ 6901 et. seq., or any similar state la'Y or
local ordinance,
(b) a release or threatened release of toxic or hazardous wastes or
substances, pollutants or contaminants, from the Development Property within
the meaning of, or otherwise bring the Property within the ambit of, CERCLA,
or any similar state law or local ordinance, or
(c) the discharge of pollutants or effluents into any water source or
system, the dredging or filling of any waters or the discharge into the air of any
emissions, that would require a permit under the Federal Water Pollution
Control Act, 33 D.S.C. ~ 1251, or the Clean Air Act, 42 D.S.C. g 7401, or any
similar law or local ordinance.
Except as noted in the Reports, to the knowledge of the HRA, without special inquiry,
there are no substances or conditions in or on the Property that may support a successful claim
or cause of action under RCRA, CERCLA or any other federal, state or local environmental
statutes, regulations, ordinances or other environmental regulatory requirements.
Except as contained herein, the HRA makes no other representation or warranty, express
or implied, concerning the presence on, in or under the Development Property, now or in the
past, of any hazardous substances, toxic waste, pollution or other contamination, and the HRA
disclaims any and all liability and responsibility to Developer in connection therewith.
Section 3.4. P.D.D. Approval. On or about April I ,2000, Developer, at its sole cost
and expense, shall apply to the City for P.U.D. approval of the Project, and shall use all
. reasonable effort to obtain such approval as soon as practicable.
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Resolution 99-12 (Con't.)
EXHIBIT "B"
November 9,1999
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Section 3.5. Real Estate Taxes and Special Assessments. The HRA represents that no
real estate taxes are due and payable on the Development Property in 1999 or 2000. 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. Any special assessments or
real estate taxes on the Development Property after the Closing Date shall be the sole
responsibility of Developer.
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Section 3.6. Closing. On the Closing Date, the HRA shall deliver to Developer a
limited warranty deed for the Development Property in the form attached as Exhibit C (the
"Deed"). The Deed shall be subject to the Permitted Encumbrances. 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 9.1 hereof) and expiration of any period to cure such Event of Default .
provided in Section 9.2 hereof prior to issuance of the Certificate of Completion. Delivery of the
Deed shall not cause termination of any provisions of this Agreement, except where expressly
provided in this Agreement. Also at the Closing, Developer shall pay the full Purchase Price to
the HRA by cashier's or certified check. 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 exceptthat 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 3.7. Recording. Developer shall cause the title insurance company to promptly
file the Agreement and the Deed in the office of the Hennepin County Recorder. Developer shall
pay all costs of recording, except 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, 2010, Developer shall
devote the Development Property only to use as an ice arena as specified in this Agreement, or
other uses consistent with the Plan, 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 confl!cts
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.
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KeSolution 99-12 (Con't.)
EXHIBIT "B"
November 9,1999
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ARTICLE IV
Construction of Improvements
Section 4.1. Construction of Improvements. Developer agrees that it will construct the
Improvements on the Development Property in substantial conformance with the approved
Development Plans for the Improvements and in conformance with all applicable City
requirements. Developer agrees that the scope and scale of the Improvements to be constructed
and all related work 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 promptly following the Closing Date, and shall
diligently prosecute construction to completion. Developer shall complete construction of 100
percent of the Improvements, and obtain a Certificate of Occupancy from the City, on or before
April 30, 2001. The times provided herein for commencement and completion of construction
shall also be extended to the extent of any Unavoidable Delays.
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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, but not more often than monthly, as to the
actual progress of Developer with respect to construction of the Improvements. Developer also
agrees that designated representatives of the HRA may enter upon the Development Property
during the construction of the Improvements to inspect such construction.
The Holder of a First Mortgage shall not have any obligation to constructor 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 7.3.
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 A 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.
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(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
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Resolution 99-12 (Con't)
EXHIBIT "8"
November 9,1999
the HRA, for Developer to take or perform in order to obtain such Certificate of
Completion.
Section 4.4 Escrow Agreement. On the date hereof, the Parties and U.S. Bank Trust
National Association (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 of Default by Developer, except to the extent that the HRA' s damages. are
reduced by its recovery under the Escrow Agreement.
ARTICLE V
Insurance.
Section 5.1. Insurance.
(a) Developer shall provide and maintain, or cause to be maintained, at all times
during the process of constructing the Improvements, at its sole cost and expense, and,
from time to time at the request of the HRA, furnish the HRA with proof of payment of
premIUms on:
(i) Builder's risk insurance, written on the so-called "Builder's Risk
Completed Value Basis", in an amount equal to one hundred percent (100%) of
the insurable value or one hundred percent (100%) of the full replacement cost of
the Improvements at the date of completion, with a deductible amount of not more
than $25,000, and with coverage available in nonreporting form on the so-called
"all risk" form of policy;
(ii) Comprehensive general liability insurance (including operations,
contingent liability, operations of subcontractors, completed operations and
contractual.1iability insurance) together with an Owner's and Contractor's
Protective Policy with limits against bodily injury and property damage of not less
than $2,000,000 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 reasonably satisfactory
to the HRA; and
(iii) Worker's compensation insurance, with statutory coverage.
The policies of insurance required pursuant to clauses (i) and (ii) above shall be in
form and substance reasonably 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
12
Resolution 99-12 (Con't.)
EXHIBIT liB"
November 9,1999
.
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, 2010, 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 t~rm
"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
$2,000,000.
(iii) Worker's compensation insurance respecting all employees of
Developer employed at the Project in amounts not less than the minimum required
by statute.
.
(c) All insurance required in this Article V shall be taken out and maintained in
responsible insurance companies selected by Developer which are authorized under the
laws of the State to assume the risks covered thereby. At the first time that any insurance
is required to be in effect hereunder, Developer will deposit with the HRA a certificate or
certificates or binders of the respective insurers evidencing that such insurance is in force
and effect. Unless otherwise provided in this Article V, each policy shall contain a
provision that the insurer shall not cancel or modify it without giving written notice to
Developer and the HRA at least thirty (30) days before the cancellation or modification
becomes effective. Upon the HRA's request, Developer shall furnish the HRA evidence
reasonably 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 Improveme.nts.
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Resolution 99-12 (Con't.)
EXHIBIT liB"
November 9, 1999
(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 ofthe 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.
. Notwithstanding the foregoing, if all or a substantial portion of the Improve~ents
are destroyed by the fire or other casualty, Developer shall have the right to raze to grade
the damaged Improvements and clear all debris resulting therefrom and landscape the
Development Property with trees, shrubs and grass in a manner which is compatible with
the surrounding area and reasonably acceptable to the HRA, or convert the use of the
Development Property to other uses consistent with the Plan.
ARTICLE VI
Undertakings of the HRA
Section 6.1. Sale of Development Property. 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 6.2 below, the following actions:
(a) Sale ofthe Development Property to Developer pursuant to the Deed onthe
Closing Date.
(b) Use reasonable efforts with the City sothat the Improvements may constitute
a permitted use under the zoning ordinance of the City.
Section 6.2. Limitations on Financial Undertakings of the HRA. The provisions of
Section 6.1 of this Agreement notwithstanding, the HRA shall have no obligation to Developer
under this Agreement to take any action provided for in this Agreement except upon existence of
the following conditions:
(a) Developer has satisfied all conditions precedent under this Agreement;
14
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Resolution 99-12 (Con't.)
EXHIBIT "B"
November 9,1999
(b) No Event of Default has occurred and is then continuing beyond the cure
period provided in Section 9.2;
( 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 6.3. 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 iisobligations under this
Agreement by any public body succeeding to its powers.
Section 6.4. HRA's Option to Terminate. This Agreement may be terminated by~he
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 August 1, 2000; provided, however, that termination
of this Agreement pursuant to this Section 6.4 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 VII
Mortgage Financing
Section 7.1. Approval 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 and Holder 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 7.3, provided that nothing in this section or in any other section
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Resolution 99-12 (Con't.)
EXHIBIT "B"
November 9,1999
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 ofthis 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 7.2. 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 7.3. Mortgagee's Option to Cure Defaults. After any breE!<(h or default referred
to in Section 7.2 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 7.2 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 this
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 constructi on already made) for more
than 90 days after the Holder has received notice of such default pursuant to Section 7.2 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 this
Agreement, such agreement shall provide that all obligations of the Holder thereunder shall
terminate at such time as this Agreement is assigned by the Holder in accordance with the
provisions of Section 8.1 of this 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 8.1 of this Agreement, if the
Holder of a First Mortgage acquires the interest of Developer under the terms of this Agreement,
the Holder shall be permitted to assign its interest in this Agreement with the consent ofHRA,
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
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KeSOIUtlOn ~~-12 (Can't.)
EXHIBIT "B"
November 9,1999
condition and experience of the proposed assignee and its capacity to perform the obligations
remaining to be performed under this 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,OOO,OOO. 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 this Agreement, the Deed, and the Plan, and not to transfer, mortgage or otherwise
convey any portion of the Development Property, except as permitted in this Agreement.
Section 7.4. HRA's Option 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 VII, the Holder, within ten (10) days after it has declared or given notice to .
Developer of a default, shall notify the HRA in writing of 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 the Holder 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 BRA 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 U.S. Bank. National Association 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 7.5. 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 adequate to protect the interest of the HRA.
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Resolution 99-12 (Con't.)
EXHIBIT liB"
November 9,1999
ARTICLE VIII
Restrictions on Transfer; Indemnification
Section 8.1. 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. The Parties agree that the terms and conditions hereof run with the land and shall be
binding upon their successors and assigns.
Section 8.2. 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. This provision shall continue indefinitely after the termination of
this Agreement.
ARTICLE IX
Events of Default
Section 9.1. 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 perform on the Closing Date as the same may be
extended pursuant to the terms of this Agreement.
(b) 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 pursuant to the terms, conditions and limitations of Article IV of
this Agreement.
(c) Until December 31, 2010, 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.
(d) 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.
18
KeSolutlon 99-12 (Con't.)
EXHIBIT "B"
November 9, 1999
.
( e) 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.
(f) 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,
(g) 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 9.2. 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 7.1 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 9. 1 (a), (b), or (c), 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 ofthis
Agreement and ofthe Plan):
(a) The HRA may suspend its performance under this Agreement until it receives
assurances from Developer, deemed adequate by the HRA, that Developer will cure its
default and continue its performance under this Agreement. .
.
(b) If the Event of Default occurs prior to the Closing Date, the HRA may cancel
and rescind this 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
19
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Resolution 99-12 (Con't.)
EXHIBIT liB"
November 9,1999
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, provided that any damages shall be reduced to the extent of
any amount recovered by the HRA under any security provided by Developer.
Section 9.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to
the HRA is intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or inequity 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 9.4. 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 the 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 X
Additional Provisions
Section 10.1. Equal Employment Opportunity. Developer agrees that during the
construction ofthe 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 10.2. 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 10.3. Titles of Articles and Sections. Any titles of the several parts, Articles and
Sections of this Agreement are inserted for convenience of reference only and shall be
disregarded in construing or interpreting any of its provisions.
Section 10.4. Notices and Demands. Except as otherwise expressly provided in this
Agreement, a notice, demand or other communication under this 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,
20
Resolution 99-12 (Con't.)
EXHIBIT "B"
November 9,1999
.
(a) in the case of Developer, is addressed to or delivered personally to Developer
at 123 Ottawa Avenue North, Golden Valley, Minnesota 55422, Attention: Business
Manager, with copies to John B. Winston, 4420 IDS Center, 80 South Eighth Street,
Minneapolis, Minnesota 55402; and
(b) in the case of the HRA, is addressed to or delivered personally to the HRA to
Housing and Redevelopment Authority In and For the City of Golden Valley, 7800
Golden Valley Road, Golden Valley, Minnesota 55428, Attention: Director, with copies
to Allen D. Barnard, Best & Flanagan LLP, 4000 D.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.
Section 10.5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 10.6. 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 10.7. 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 10.8. 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 10.9. Duration. This Agreement shall be effective as of the date hereof and shall
continue in full force and effect until December 31, 2010. This Agreement shall survive the
Closing Date and the HRA's delivery of any Deed to Developer.
Section 10.10. Binding Effect. Subject to the provisions of Article VIII, this Agreement
is binding upon, and shall inure to the benefit of, the successors and permitted assigns of the
Parties.
Section 10.11. Consents. Any consent or approval required of a Party under this
Agreement shall not be unreasonably withheld or delayed.
.
Section 10.12. Certificates. Upon reasonable request from time to time, the HRA shall
execute and deliver written certificates to parties designated by Developer concern~ng whether
21
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Resolution 99-12 (Con't.)
EXHIBIT "B"
November 9,1999
the Agreement is in effect, whether any defaults exist under the Agreement and other similar
matters.
Section 10.13. Time of the Essence. Time is of the essence in the performance by each
Party of its obligations under this Agreement.
ARTICLE XI
Termination of Agreement
Section 11.1. Developer's Options to Terminate. This Agreement may be terminated by
Developer by written notice to the HRA in the event of any of the following events or conditions,
unless Developer's failure to comply with all material terms of this Agreement, or Developer's'
then existing Event of Default, has caused such event or condition:
(a) Subject to Section 6.2, 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
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 August 1, 2000, tmless extended by the
(c) If Developer's title objections are not wai ved by Developer or cured by the
HRA pursuant to Section 3.1 ;
(d) Subject to Section 3.3, if Developer reasonably determines that
construction of the Improvements is not practicable without material additional cost due
to existing soil or groundwater conditions, or due to the presence of hazardous
substances, pollution or other contamination on the Development Property;
(e) On or before March 7, 2000, if Developer determines to proceed with the
construction of a new ice arena at another site, provided that this Agreement shall
automatically terminate on the date Developer obtains P.U.D. approval from the City for
construction of a new ice arena at another site; or
(f) If the HRA defaults in any obligation to Developer to purchase or acquire
by condemnation Developer's existing ice arena property on Highway 394.
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.
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Resolution 99-12 (Con't.)
EXHIBIT "B"
November 9, 1999
Section 11.2. Effect of Termination. Except as provided in Section 8.2, if this
Agreement is terminated pursuant to this Article XI, 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 XI 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.
HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF GOLDEN V ALLEY
By
Its
And
Its
BRECK SCHOOL
By
Robert C. Pohlad, President
STATE OF MINNESOTA)
) SS.
COUNTY OF HENNEPIN)
The foregoing instrument was acknowledged before me this _ day of . 1999,
~ . ,~
of the HOUSING AND REDEVELOPMENT AUTHORITY IN
AND FOR THE CITY OF GOLDEN VALLEY, on behalf of the organization.
Notary Public
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Resolution 99-12 (Can't.)
STATE OF MINNESOTA)
) SS.
COUNTY OF HENNEPIN )
EXHIBIT liB"
November 9,1999
The foregoing instrument was acknowledged before me this _ day of , 1999,
by Robert C. Pohlad, the President of BRECK SCHOOL, 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
11800/960702/78603
Notary Public
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Resolution 99-12 (Con't.)
EXHIBIT "B"
November9, 1999
EXHIBIT A
CERTIFICATE OF COMPLETION
HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF
GOLDEN V ALLEY, a public body corporate (the "HRA"), and BRECK SCHOOL, a Minnesota
nonprofit corporation ("Developer"), previously entered into the Breck School 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 1, Block 1, North Wirth Parkway 4th Addition, Hennepin County, Minnesota.
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 covena~ts
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 ofthe 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 escrow securing performance thereof, are hereby released absolutely and
forever insofar as 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, those covenants contained
in the Agreement which are to remain in full force and effect until December 31, 2010, shall
remain in force and effect until that date.
HOUSING AND REDEVELOPMENT AUTHORITY IN
AND FOR THE CITY OF GOLDEN V ALLEY
By:
Its:
And:
Its:
A-I
Resolution 99-12 (Con't.)
EXHIBIT "B"
November 9,1999
. STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _ day of ____, 20_, 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
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THIS INSTRUMENT WAS DRAFTED BY:
Best & Flanagan LLP
4000 U.S. Bank Place
601 Second Avenue South
. Minneapolis, Minnesota 55402-4331
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Resolution 99-12 (Con't.)
EXHIBIT UB"
EXHIBIT B
DEVELOPMENT PLANS
(to be supplied)
B-1
November 9,1999
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Resolution 99-12 (Con't.)
EXHIBIT "B"
November 9, 1999
EXHIBIT C
Consultam
LIST OF ENVIRONMENTAL REPORTS AND ANALYSES
Wenck Associates, Inc.
Wenck Associates, Inc.
The Braun Companies
The Braun Companies
Barr Engineering
Barr Engineering
Barr Engineering
Barr Engineering
Barr Engineering
Barr Engineering
Barr Engineering
Braun lntenec
(Project No. CMXX-9B-0734)
Report
Date
Work plan [oi. Soil and Groundwater, September 1988
Remedial Investigation at Glemvood junction
Facility, Golden Valley, MN
Corrective.Action Report - Soo Line December 6, 1988
Railroad Company, Glenwood Junction
Facility, Golden Valley, MN
Environmental Evaluation - Glenwood June 27, 1989
Junction and Surrounding Properties North
of highway 55 at Indiana A venue, Golden
Valley, MN
Subsurface Investigation - Fill Piles Located April 16, 1990
North of Eighth Ave. No. and West of
Sunnyridge Lane, Golden Valley, MN
Dahlberg Drive Construction Project Golden September 13, 1991
Valley, MN, Results of Soil Investigation
(letter report)
Results of Focused Groundwater and Surface October 23, 1991
Water Quality Investigation North Winh
Pkw)'./Glenwood Junction Property, Golden
Valley, MN (letter repon)
Results of Soil and Groundwater February 1992
Investigations - Dahlberg Drive Site, Golden
VaHey, MN .
Work Plan; Supplemental Soil Clnd September 1992
Groundwater Investigation, Dahlberg Drive
Site. Golden Valley. MN
Corrective Action Design Report; Dahlberg March 1993
Drive Site'- Golden Valley, MN
Addendum to Corrective Action Design, December 1993
Dahlberg Drive Site, Golden Valley, MN
1994 Excavation Report, Dahlberg Drive March 1995
Site, Golden Valley, MN
Phase 1 Environmencal Sire Assessment:
Glenwood Junction Site, 4300 Olson
Memorial Highway (701 Indiana Ave.)
Golden Valley, MN
October 26, 1998
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Resolution 99-12 (Con't.)
EXHIBIT liB"
November 9,1999
EXHIBIT D
LIMITED WARRANTY DEED
FOR VALUABLE CONSIDERATION, 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 seq. ("Grantor"), hereby grants,
bargains and conveys to BRECK SCHOOL, a Minnesota nonprofit corporation ("Grantee"),
real property in Hennepin County, Minnesota, described as follows (the "Property"):
Lot 1, Block 1, North Wirth Parkway 4lh Addition, Hennepin County, Minnesota.
together with all hereditaments and appurtenances belonging thereto,and.also together with
any after-acquired title. 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 Breck School Private Development Agreement dated
. 1999, between Grantor and Grantee (the "Agreement").
Provided:
1. It is understood and agreed that this Deed is subject to the restrictions,
reservations and encumbrances of record, if any, all building and zoning laws and ordinances,
all other local, state and federal laws and regulations, and the covenants, conditions,
. restrictions and provisions of the Agreement. It is also understood and agreed that, prior to
December 31,2010, 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 9.1 of the
Agreement, which is not cured within the period provided in Section 9.2 of the Agreement,
exists prior 10 the recording of the Certificate of Completion, then Grantor shall have all of the
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Kesolution 99-12 (Con't.)
EXHIBIT liB"
November 9,1999
. rights and remedies specified in Section 9.2 of the Agreement.
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3. Grantee hereby agrees to do the following:
(a) Maintain insurance of such types and amounts as specified in Article V
of the Agreement;
(b) Pay real estate taxes and special assessments on the Property when due,
if not exempt from such taxes and assessments;
(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, 2010.
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 , 2000.
HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF GOLDEN V ALLEY
By:
Gloria Johnson
Its Chair
By:
William S. Joynes
Its Director
D-2
Resolution 99-12 (Con't.)
EXHIBIT "B"
November 9,1999
. STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _ day of , __, 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
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THIS INSTRUMENT WAS DRAFTED BY:
Best & Flanagan LLP
4000 U.S. Bank Place
601 Second Avenue South
. Minneapolis, Minnesota 55402-4331
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