00-03 HRA Resolution
Resolution 00-03
April 18, 2000
. Commissioner Micks introduced the following and moved its adoption:
RESOLUTION CONDITIONALLY APPROVING SALE OF CERTAIN
REAL PROPERTY IN THE NORTH WIRTH PARKWAY
REDEVELOPMENT AREA
(Breck School- Highway 55 Site)
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 41,000 square feet on property legally
described on the attached Exhibit A; 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
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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 B of a public hearing on the proposed sale of the
property legally described in Exhibit A 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 9469.029; 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 $5 per
. square foot.;
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Resolution 00-03 - Continued
April 18, 2000
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 "C" 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 "C" so modifies it.
Motion for the adop ion of the foregoing resolution was seconded by Commissioner
LeSuer; 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.
Resolution 00-03 (Con't.)
EXHIBIT A
April 18, 2000
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LEGAL DESCRIPTION
Outlot D, together with that part of vacated Indiana Avenue North, adjoining said Outlot D,
North Wirth Parkway 3rd Addition. And
The North Y2 of vacated alley lying between the extensions Southerly of the center line of
vacated alley adjoining Lot 78, Glenwood on the East and the West line of said Lot 78. And
The South Y2 of vacated alley lying between the extensions Northerly of the East and West
lines of Lot 77, "Glenwood". And
The North Y2 of vacated alley lying between the extensions Southerly of the center line of
the North-South vacated alley adjoining Lot 108, "Glenwood", on the West and the Easterly
line of said Lot 1 08. And
Lots 1 09, 110, and 111; The South half of that part of the vacated East-West alley
adjoining Lots 109 through 111 inclusive, which lies South of the South line of Lot 108 and
its westerly extension, and which lies between the Northerly extensions of the East line of
Lot 109 and the West line of Lot 111; all in "Glenwood". And
Parcel 1: Lot 79 and that part of the West Half of the vacated alley adjoining said Lot lying
. between extensions across it of the North and South lines of said Lot 79, Glenwood.
Parcel 2: The North 14 feet of Lot 107 and that part of the East Half of the adjoining
vacated alley lying between extensions across it of the North line of Lot 1 07 and the South
line of the North 14 feet, thereof, Glenwood.
Parcel 3: Lot 107 except the North 14 feet thereof; Lot 108; The East Y2 of the adjoining
vacated alley lying between extensions across it of the South line of said Lot 108 and the
North line of that part of said Lot 107 lying South of the North 14 feet of said Lot 107,
Glenwood. And
Lots 75, 76, 77 and 78, together with vacated alleys or roads accruing thereto; The West Y2
of the adjoining vacated alley. lying between the extensions across it of the North and
South lines of Lot 78, "Glenwood". And
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That part of vacated Ardmore Drive (formerly Jean Avenue) lying East of the West line of
the Southeast Quarter of the Northeast Quarter of Section 19, Township 29, Range 24 and
between extensions across it of the North and South lines of Lot 79, Glenwood, which lies
Easterly of a line of 30 feet Westerly of and parallel with a line described as beginning at
the intersection of the South line of said Northeast Quarter of Section 19, and a line 60 feet
Easterly of and parallel with the West line of said Southeast Quarter of the Northeast
Quarter of Section 19; thence Northerly along said parallel line 227.89 feet; thence
Northwesterly a distance of 107.28 feet along a tangential curve concave to the Southwest
having a central angle of 32 degrees 56 minutes 29 seconds and a radius of 186.60 feet
and said line there terminating.
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Resolution 00-03 (Con't.)
EXHIBIT B
April 18, 2000
NOTICE OF PUBLIC HEARING
APPROVAL OF SALE OF REAL PROPERTY AT THE
NORTHEAST INTERSECTION OF HWY. 55 AND
DAHLBERG DR. TO BRECK SCHOOL. 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, April 18, 2000, at 6:00 p.m. and will then and there
consider the sale and terms of development of the property located at the northeast
intersection of Hwy 55 and Dahlberg Dr. to Breck School for redevelopment pursuant to
Minnesota Statutes Section 469.029. The proposal is to construct an ice arena of
approximately 41 ,000 sq. ft. and related parking. The legal description of the property is as
follows:
Outlot 0, together with that part of vacated Indiana Avenue North, adjoining said Outlot 0,
North Wirth Parkway 3rd Addition; And
The North % of vacated alley lying between the extensions Southerly of the center line of
vacated alley adjoining Lot 78, Glenwood on the East and the West line of said Lot 78; And
The South % of vacated alley lying between the extensions Northerly of the East and West
lines of Lot 77, "Glenwood"; And
The North % of vacated alley lying between the extensions Southerly of the center line of
the North-South vacated alley adjoining Lot 108, "Glenwood", on the West and the Easterly
line of said Lot 108; And
Lots 1 09, 110, and 111; The South half of that part of the vacated East-West alley
adjoining Lots 109 through 111 inclusive, which lies South of the South line of Lot 108 and
its westerly extension, and which lies between the Northerly extensions of the East line of
Lot 109 and the West line of Lot 111; all in "Glenwood"; And
Parcel 1: Lot 79 and that part of the West Half of the vacated alley adjoining said Lot lying
between extensions across it of the North and South lines of said Lot 79, Glenwood.
Parcel 2: The North 14 feet of Lot 107 and that part of the East Half of the adjoining
vacated alley lying between extensions across it of the North line of Lot 107 and the South
line of the North 14 feet, thereof, Glenwood.
Parcel 3: Lot 107 except the North 14 feet thereof; Lot 108; The East % of the adjoining
vacated alley lying between extensions across it of the South line of said Lot 108 and the
North line of that part of said Lot 107 lying South of the North 14 feet of said Lot 107,
Glenwood; And
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Resolution 00-03 (Con't.)
April 18, 2000
Lots 75,76,77 and 78, together with vacated alleys or roads accruing thereto; The West %
of the adjoining vacated alley lying between the extensions across it of the North and
South lines of Lot 78, "Glenwood"; And
That part of vacated Ardmore Drive (formerly Jean Avenue) lying East of the West line of
the Southeast Quarter of the Northeast Quarter of Section 19, Township 29, Range 24 and
between extensions across it of the North and South lines of Lot 79, Glenwood, which lies
Easterly of a line of 30 feet Westerly of and parallel with a line described as beginning at
the intersection of the South line of said Northeast Quarter of Section 19, and a line 60 feet
Easterly of and parallel with the West line of said Southeast Quarter of the Northeast
Quarter of Section 19; thence Northerly along said parallel line 227.89 feet; thence
Northwesterly a distance of 107.28 feet along a tangential curve concave to the Southwest
having a central angle of 32 degrees 56 minutes 29 seconds and a radius of 186.60 feet
and said line there terminating.
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
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Resolution 00-03
EXHIBIT C
April 18, 2000
BRECK SCHOOL PRIVATE DEVELOPMENT AGREEMENT
THIS AGREEMENT, effective as of ,2000, is made and entered into by and
b~tween 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 HRA a proposal for the purchase of a site in
the Redevelopment Area legally described in attached Exhibit A (the "Development Property"),
and the construction on the Development Property of an ice arena building of approximately
41,000 square feet, together with parking for at least 148 automobiles that meets City zoning
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 ofa
development agreement between the parties setting forth the mutual rights and obligations of the
parties in accordance with the provisions of the Plan; and
WHEREAS, Developer and the HRA entered into a prior Breck School Private
Development Agreement, dated November 9, 1999 (the "Prior Agreement"), which continues to
be in effect;
NOW, THEREFORE, in consideration of the foregoing, and in consideration of the
mutual terms and conditions contained herein, the parties hereby agree as follows:
Resolution 00-03
EXHIBIT C
April 18, 2000
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TABLE OF CONTENTS
Page
Article I - Definitions..................................................................................................................... 4
}.l Definitions........................................................................................................................... 4
Article II - Representations and W arranties ................................................................................... 6
2.1 Representations and 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 Matters........................................................................................................ 8
3.4 Replatting; City Approvals ......... ...................... ...............................................................11
3.5 Real Estate Taxes and Special Assessments .....................................................................11
3.6 Closing............................................................................................................ .................... 11
3.7 Recording....................................... ................................................. ................... ............... 11
3 .8 Use.................................................................................................................................... 11
3.9 Termination of Agreements ..............................................................................................11
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Article IV - Construction of Improvements .................................................................................12
4.1 Construction of Improvements ....................... ......... ............................... ...................... ....12
4.2 Commencement and Completion of Construction............................................................ 12
4.3 Certificate of Completion ............................... ........... ............................. ................. .........12
4.4 Escrow Agreement ........................ .................. ........... ................ ............. ......................... .13
Article V - Insurance........................................................................................... ......................... 13
5.1 Insurance........................................................................................................................... 13
Article VI - Undertakings of the HRA.........................................................................................16
6.1 Sale of Development Property ..........................................................................................16
6.2 Limitations on Financial Undertakings of the HRA .........................................................16
6.3 HRA to Maintain Existence ..............................................................................................16
6.4 HRA' s Option to Terminate........................... .............................................................. .....16
Article VII - Mortgage Financing ................................................................................................17
7.1 Approval of Mortgage.................................... ....... .................................................. ....... ...17
7.2 Notice of Default; Copy to Mortgagee ..................................................................~ ..........17
7.3 Mortgagee's Option to Cure Defaults ...............................................................................17
7.4 HRA's Option to Cure Default on Mortgage.................................................................... 18
7.5 Subordinate Liens ....................... ........................................................ .............................. 19
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Article VIII - Restrictions on Transfer.........................................................................................19 '
8.1 Restrictions on Transfer ....................................................................................................19
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Resolution 00-03
EXHIBIT C
April 18, 2000
8.2 Indemnification................................................................................................................. 19
Article IX - Events of Default................ ............................................... ........ ..... ...... .......... .......... 20
9.1 Events of Default Defined.................................. ....... .............................. ................... ....... 20
9.2 Remedies on Default......................... .... ..... ..... ......................... .......... ....... .......... ...... ........ 20
9 .3 No Remedy Exclusive............ ...................................................... .....................................21
9.4 No Additional Waiver Implied by One Waiver ................................................................22
Article X - Additional Provisions .................. ............ ................................ ........ ...................... .... 22
10.1 Equal Employment Opportunity .....................................................................................22
10.2 Not for Speculation......................................................................................................... 22
10.3 Titles of Articles and Sections ........................................................................................22
10.4 Notices and Demands ...................... .................... .................................. ........ ............... ..22
I 0.5 Counterparts...................................................................................................;................ 23
10.6 Modification.................................................................................................................... 23
10.7 Interpretation and Amendment ..... ....... ....... ...... ........ ...................... ...... ....... ...................23
10.8 Severability....................... .............................................................................................. 23
10.9 Duration.......................................................................................................................... 23
10.10 Binding Effect ......................... .................................................................. .............. ...... 23
10.11 Consents........................................................................................................................ 23
10.12 Certificates ...................................... ........... ............... .................... ... ................... ..........23
10.13 Time of the Essence.............................................................. ........................................23
Article XI - Termination of Agreement ............................................ ........... ................................24
11.1 Developer's Options to Terminate ..................................................................................24
11.2 Effect of Termination...................................................................................................... 24
Exhibit A - Legal Description .................. ........................ ............... ............. ................... ..... .A-l
Exhibit B - Certificate of Completion... ........ ................... ....................... ..... ................ ......... B-1
Exhibit C - Development Plans............................... ..................... ............ ..... ....... ......... ......... C-l
Exhibit D - List of Environmental Reports .... .............................. .................... .......... ....... .....D-l
Exhibit E - Form of Release...................... ..................... ................................. ....................... E-l
Exhibit F - Limited Warranty Deed ....................................................................................... F-l
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Resolution 00-03
EXHIBIT C
April 18, 2000
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ARTICLE I
Definitions
Section 1.1.
from the context:
Definitions. In this Agreement, unless a different meaning clearly appears
"Agreement" means this Breck School 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 B attached to and made a part of this Agreement, provided to Developer
pursuant to Section 4.3 of this Agreement upon satisfactory completion ofthe 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. The Closing may be postponed as provided in Section
. 3.3(h) hereof, but not beyond August 1,2000 without mutual agreement by the Parties.
"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 petform~d, 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 C 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 in Exhibit A.
"Event of Default" means an action by Developer listed in Section 9.1 of this Agreement.
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"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 00-03
EXHIBIT C
April 18, 2000
"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 zoning 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 collection
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$5.00 per square foot of the Development Property,
payable at closing, together with an amount equal to 50% of any grant award received for the
remediation of the Development Property as and when received.
"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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Resolution 00-03
EXHIBIT C
April 18, 2000
"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.
ARTICLE 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" pursuantto 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.
(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 ofthis 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 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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KeSolutlon UU-u::S
EXHIBIT C
April 18, 2000
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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.
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(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).
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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 00-03
EXHIBIT C
April 18, 2000
ARTICLE III
Title and Other Matters
Section 3.1. Marketable Title. The HRA agrees to furnish to Developer, within 14
days following the execution of the Agreement, a commitment for the issuance of an owner's
At 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 Matters.
(a) Recognition of Environmental Conditions. The parties recognize that the
soil and ground water at and below the Development Property are contaminated and that
its development must be accompanied by extensive remediation. Developer's closing of '
the purchase is expressly conditioned on Developer's determinations, in Developer's sole
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Resolution 00-03
EXHIBIT C
April 18, 2000
and absolute discretion, (i) that the Development Property can be adequately remediated to
enable the construction of the Improvements and Developer's intended uses thereof, and (ii)
that adequate funding on terms and conditions acceptable to Developer, in Developer's sole
and absolute discretion, is available to cover the costs of remediation, including, but not
limited to, the HRA's contribution referenced herein.
(b) Information and Investigation. The HRA has previously made available to
Developer copies of the written environmental reports and analyses described in Exhibit D
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 geo-technical and environmental analysis of the Development Property. Subject
to the terms and conditions of this Agreement, Developer shall have responsibility for
performing all additional environmental and geo-technical analyses of the Development
Property necessary to make the determinations required herein.
(c) Cooperation. The parties hereto agree to cooperate fully in the performance
of the investigation of the Development Property and in preparing and submitting plans and
applications for securing authorization for its remediation to enable the construction and
intended uses of the Improvements.
(d) Response Action Plan and Environmental Clearance. Developer shall
prepare and submit an application to emoll the Development Property in the Voluntary
Investigation and Cleanup ("VIC") and Voluntary Petroleum Investigation and Cleanup
("VPIC") programs administered by the Minnesota Pollution Control Agency ("MPCA").
The HRA authorizes the Developer to prepare and submit these applications and required
plans and reports at any time following the execution of this Agreement, and shall cooperate
as necessary with regard to the submission of these documents. Subject to the terms and
conditions of this Agreement, Developer shall be responsible for advancing the applications,
reports and plans, and securing requisite MPCA approval for the response action Plan
("RAP") and any other governmental authorizations necessary for remediation of the
Development Property.
(e) Estimate of Costs. Following receipt of approval of the RAP from the
MPCA, Developer shall prepare a detailed budget identifying the specific costs to be incurred.
in remediating the Development Property. The budget shall be submitted and reviewed with
the HRA. Developer may but is not required to secure bids for the remediation activity in
performing the estimate of costs.
(f) Cost Contribution. The HRA agrees to pay up to $400,000 toward the costs
of remediating the Development Property as specified in the remediation budget incorporated
in the grant agreement(s). This payment shall be made regardless of and in addition to any
grant award received pursuant to paragraph (g). Disbursement of these funds by the HRA
shall be made to Developer within sixty (60) days following the HRA's receipt of statements
evidencing the payment of budgeted remediation costs and shall be made if reimbursement
cost statements establish the expenditure of this amount by the developer.
(g) Grant Applications. The HRA agrees to assist the Developer in preparing'
applications to the Minnesota Department of Trade and Economic Development ("DTED")
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for a contamination clean-up grant and the Metropolitan Council for a Tax Base
Revitalization ("TBRA") grant to provide additional assistance for funding the remediation of
the Development Property. The Developer shall be primarily responsible for the preparation
of these grant applications. The HRA agrees to assign a staff member to assist in the
preparation of the application and to execute and submit the grant application. In the event
that a grant award is received, the HRA agrees to administer the payment of grant funds
'received for performing the remediation of the Development Property to Developer or its
designees. All grant funds received shall be used to reimburse Developer for costs of
remediation of the Development Property in accordance with the grant agreement(s). The
grant applications shall be submitted to DTED and the Metropolitan Council on or before
May I, 2000.
(h) Closing. Closing ofthe purchase transaction may be postponed by
Developer until following determinations by DTED and the Metropolitan Council with regard
to the award of grant funds during the May cycle. This determination is expected to be made
by June 30, 2000.
(i) Securing Environmental Clearances. Developer shall be primarily
responsible for securing environmental clearance for itself and the HRA pursuant to the VIC
and VPIC programs incident to remediation and redevelopment of the Development Property.
Developer shall request and obtain, to the extent the same are reasonably available and can be
obtained without unreasonable expenditures of time or expense, either with respect to the
remediation itself or with respect to the letter application process, a no-further action and no-
association letter clearance and a petroleum site closure letter for the Development Property
G) Release of Environmental Liability. Developer agrees too execute an
environmental liability release in favor of the HRA and the City as set forth in Exhibit E at the
time of the Closing.
(k) Performance of Remediation. Unless Developer terminates this
Agreement or abandons the Development Property, Developer shall perform the remediation
of the Development Property in accordance with the Response Action Plan approved by the
MPCA.
(I) Compliance. Actions taken by Developer pursuant to the provisions of
this Agreement shall be in accordance with all laws, rules and regulations applicable thereto.
(m) Indemnification. Developer shall indemnify and hold BRA harmless
against any liens, damage, claims or liabilities arising as a result of its investigation or
performance of remediation of the Development Property.
Except as contained herein, the HRA makes no other representations or warranty, express or
implied, concerning the presence on, in or under the Development Property, now or in the
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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. Replatting; City Approvals. Developer, at its sole cost and expense, shall
apply to the City to have the Development Property replatted with the following legal
description: Lot 1, Block 1, Breck School Ice Arena Addition, and to obtain all other necessary
rezoning and conditional use permit approvals from the City for the Project. Developer shall use
all reasonable effort to obtain such approvals as soon as practicable.
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 2000 or 2001. 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.
Section 3.6. Closing. One the Closing Date, the HRA shall deliver to Developer a
limited warranty deed for the Development Property in the form attached as Exhibit F (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 ofa First Mortgage, upon the occurrence of an Event of Default (as
defined in Section 9.1 hereof) and expiration of any period of 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 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 3.7. Recording. Developer shall cause the title insurance company to promptly
file this 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 Developeror the Development Property without Developer's consent, which
consent shall not be unreasonably withheld or delayed. To the extent that there are any conflicts
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between this Agreement and the Plan, the provisions of this Agreement shall govern, land the
approval by the HRA of this Agreement shall constitute an amendment of the Plan.
Section 3.9. Termination of Agreements. On or before April 30, 2000, Developer shall
give the HRA written notice that either this Agreement or the Prior Agreement shall thereupon
tepninate. If Developer fails to deliver such notice by April 30, 2000, the Prior Agreement shall
automatically terminate.
ARTICLE IV
Construction ofImprovements
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
August 31, 2001, provided that such date shall not affect the date on which the Lease of the prior
ice arena between the Parties shall otherwise terminate. The times provided herein for
commencement and completion of construction shall also be extended to the extent of any
Unavoidable Delays.
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 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 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 B attached hereto. Such
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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 Escrow A~reement. The Parties and U.S. Bank Trust National
Association (the "Bank") have previously executed an Escrow Agreement and Developer has
deposited $100,000 with the Bank pursuant to the Escrow Agreement. The EscrowAgreement
shall be amended to provide that it shall 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
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 liability insurance) together with an Owner's and Contractor's
Protective Policy with limits against bodily injury and property damage of not less
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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
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:
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(i) Insurance against loss and/or damage to the Improvements under a
policy or policies covering such risks as are ordinarily insured against by similar
businesses, including (without limiting the generality of the foregoing) fire,
extended coverage, vandalism and malicious mischief, explosion, water damage,
demolition cost, debris removal, and collapse in an amount not less than 90
percent of the full replacement cost of the Improvements, but any such policy may
have a deductible amount of not more than $25,000. No policy of insurance shall
be written so that the proceeds thereof will produce less than the minimum
coverage required by the preceding sentence, by reason of co-insurance provisions
or otherwise, without the prior consent thereto in writing by the HRA. The term
"full insurable replacement value" shall mean the actual replacement cost of the
Improvements (excluding foundation and excavation costs and other uninsurable
items) and equipment.
(ii) Comprehensive general public liability insurance, including personal
injury liability for injuries to persons and/or property, including any injuries
resulting from the operation of automobiles or other motorized vehicles on or
about the Development Property, in the minimum amount for each occurrence of
$2,000,000.
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(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
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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 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, or as soon thereafter as is reasonably possible, 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.
Notwithstanding the foregoing, if all or a substantial portion of the Improvements
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:
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(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
an approved conditional use under the zoning ordinance ofthe 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;
(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 its obligations 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 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 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
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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
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.
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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.
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Section 7.3. Mortga12;ee's Option to Cure Defaults. After any breach 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 oftime 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 construction 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
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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 of HRA,
which consent shall not be unreasonably withheld, delayed or conditioned. 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 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 $5,000,000. 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 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 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 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
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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.
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.
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(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.
( 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.
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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 if such an Event of Default has not been cured within
said 60 days or, if such an Event of Default cannot be cured within 60 days, Developer does not
provide assurances to the HRA reasonably satisfactory to the HRA that such an Event of Default
will be cured as soon as reasonably possible and that it will not jeopardize the purposes of this
Agreement and of the Plan):
(a) The HRA may suspend.its performance under 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) lfthe Event of Default occurs prior to the Closing Date, the HRA may cancel
and rescind this Agreement.
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(c) lfthe 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
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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, 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 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 constru~d to be a waiver thereof, but any such right ana power may be
exercised from time to time and as often as may be deemed expedient.
Section 9.4. 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 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 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 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.
21
Resolution 00-03
EXHIBIT C
April 18, 2000
.
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 lOA. 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,
(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 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.
.
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.
22
.
.
.
Resolution 00-03
EXHIBIT C
April 18, 2000
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
A~reement 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 concerning whether
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 ofthe 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, 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) Pursuant to Section 3.3, if Developer determines, in its sole and absolute
discretion, that either the construction of the Improvements, or Developer's intended use
thereof, 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.
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
23
.
.
.
Resolution 00-03
EXHIBIT C
April 18, 2000
lieu of terminating this Agreement, may pay such amount on behalf of the HRA and reduce the
Purchase Price.
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, and Developer's escrow deposit made pursuant to
Section 4.4 hereof shall be promptly refunded to Developer; 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 AUTHORlTY
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 , 2000,
by Gloria Johnson, Chair, and William S. Joynes, Director of the HOUSING AND
REDEVELOPMENT AUTHORlTY IN AND FOR THE CITY OF GOLDEN V ALLEY, on
behalf of the organization.
Notary Public
24
.
.
.
Resolution 00-03
STATE OF MINNESOTA)
) SS.
COUNTY OF HENNEPIN )
EXHIBIT C
April 18, 2000
The foregoing instrument was acknowledged before me this _ day of , 2000,
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
60 I Second Avenue South
Minneapolis, Minnesota 55402-4331
11800/960703/104513
Notary Public
25
.
.
.
Resolution 00-03
EXHIBIT C
April 18, 2000
EXHIBIT A
LEGAL DESCRIPTION
Outlot D, together with that part of vacated Indiana Avenue North, adjoining said Outlot D,
North Wirth Parkway 3rd Addition. And
The North % of vacated alley lying between the extensions Southerly of the center line of
vacated alley adjoining Lot 78, Glenwood on the East and the West line of said Lot 78. And
The South % of vacated. alley lying between the extensions Northerly of the East and West
lines of Lot 77, "Glenwood". And
The North % of vacated alley lying between the extensions Southerly of the center line of
the North-South vacated alley adjoining Lot 108, "Glenwood", on the West and the Easterly
line of said Lot 1 08. And
Lots 1 09, 110, and 111; The South half of that part of the vacated East-West alley adjoining
Lots 109 through 111 inclusive, which lies South ofthe South line of Lot 108 and its
westerly extension, and which lies between the Northerly extensions of the East line of Lot
109 and the West line of Lot 111; all in "Glenwood". And
Parcel 1: Lot 79 and that part of the West Half of the vacated alley adjoining said Lot lying
between extensions across it of the North and South lines of said Lot 79, Glenwood.
Parcel 2: The North 14 feet of Lot 107 and that part of the East Half of the adjoining
vacated alley lying between extensions across it of the North line of Lot 107 and the South
line of the North 14 feet, thereof, Glenwood.
Parcel 3: Lot 107 except the North 14 feet thereof; Lot 108; The East % of the adjoining
vacated alley lying between extensions across it of the South line of said Lot 108 and the
North line of that part of said Lot 107 lying South of the North 14 feet of said Lot 107,
Glenwood. And
Lots 75,76,77 and 78, together with vacated alleys or roads accruing thereto; The West %
of the adjoining vacated alley lying between the extensions across it of the North and South
lines of Lot 78, "Glenwood". And
That part of vacated Ardmore Drive (formerly Jean Avenue) lying East of the West line of
the Southeast Quarter of the Northeast Quarter of Section 19, Township 29, Range 24 and
between extensions across it of the North and South lines of Lot 79, Glenwood, which lies
Easterly of a line of 30 feet Westerly of and parallel with a line described as beginning at
the intersection of the South line of said Northeast Quarter of Section 19, and a line 60 feet
Easterly of and parallel with the West line of said Southeast Quarter of the Northeast
Quarter of Section 19; thence Northerly along said parallel line 227.89 feet; thence
Northwesterly a distance of 107.28 feet along a tangential curve concave to the Southwest
having a central angle of 32 degrees 56 minutes 29 seconds and a radius of 186.60 feet
and said line there terminating.
A-1
.
.
.
Resolution 00-03
EXHIBIT C
April 18, 2000
EXHIBIT B
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, Breck School Ice Arena 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 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 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:
B-1
Resolution 00-03
EXHIBIT C
April 18, 2000
. STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
.
.
The foregoing instrument was acknowledged before me this _ day of _, 20_, 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 Avenue South
Minneapolis, Minnesota 55402-4331
B-2
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Resolution 00-03
EXHIBIT C
April 18, 2000
EXHIBIT D
LIST OF ENVIRONMENTAL REPORTS AND ANALYSES
Consultant
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 Intertec
(Project No. CMXX-98-0734)
Report
Date
Work plan for Soil and Groundwater, September 1988
Remedial Investigation at Glenwood 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 Avenue, 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 Wirth
Pkwy./Glenwood Junction Property, Golden
Valley, MN (letter report)
Results of Soil and Groundwater February 1992
Investigations - Dahlberg Drive Site, Golden
Valley, MN
Work Plan; Supplemental Soil and 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 I Environmental Site Assessment;
Glenwood Junction Site, 4300 Olson
Memorial Highway (701 Indiana Ave.)
Golden Valley, MN
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October 26, 1998
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Resolution 00-03
EXHIBIT C
April 18, 2000
EXHIBIT E
ENVIRONMENTAL RELEASE
This Environmental Release and Indemnity Agreement (this "Agreement") is made
as of this _ day of , 2000 by and between Breck School, a Minnesota
non-profit corporation with a mailing address of 123 Ottawa Avenue North, Golden
Valley, MN 55422 ("Developer"), the Housing and Redevelopment Authority, in and for
the City of Golden Valley, a public body corporate and politic of the State of Minnesota
with its mailing address being 7800 Golden Valley Road, Golden Valley, MN 55427 (the
"HRA"), and the City of Golden Valley, a political subdivision of the State of Minnesota
with its mailing address being 7800 Golden Valley Road, Golden Valley, MN 55427 (the
"City").
RECITALS:
A. Developer and the HRA have entered into a Development Agreement of
even date herein pursuant to which the HRA has agreed to sell, and Developer has agreed
to purchase, a certain tract of land in the City of Golden Valley legally described on
Exhibit A attached hereto (the "Property") on the terms and conditions set forth therein.
B. In the Development Agreement Developer has agreed, subject to certain
conditions, to investigate and remediate the environmental contamination of the Property
and to execute a release in favor of the HRA and the City.
C. This Agreement is intended to confirm and fulfill the obligation and the
commitment of Developer with regard to the release referenced in the Development
Agreement.
NOW, THEREFORE, for and in consideration of the matters set forth in the
Development Agreement, the mutual covenants contained therein and other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1.
Release. Developer hereby releases and forever discharges the HRA and
the City from any and all manner of actions, causes of action, suits, debts,
sums of money, accounts, covenants, warranties, obligations, agreements,
contracts, promises, damages, claims and demands whatsoever, in law or in
equity, whetherJudicial, administrative or otherwise (collectively
"Claims"), which Developer had, now has or may have in the future,
whether known or unknown as of the date hereof, arising out of Developer's
performance of the investigation and remediation of the environmental
conditions of the Property including particularly, and without limitation, the
implementation of the Response Action Plan and Developer's ownership of
and construction of the improvements on the Development Property.
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Resolution 00-03
2.
EXHIBIT C
April 18, 2000
Indemnification. Developer agrees to be responsible for, hold harmless and
defend and indemnify the HRA and the City from and against any and all
claims, liens, damages, liabilities arising as a result of or out of Developer's
performance of the investigation and remediation of the environmental
conditions of the Development Property and Developer's ownership and
construction of the improvements on the Development Property.
3. No Third Party Beneficiaries. Nothing herein expressed or mentioned in or
to be implied from this Agreement is intended to or shall be construed to
give any person other than the parties hereto any legal or equitable right,
remedy or claim under or in respect of this Agreement and there shall be no
third party beneficiaries of this Agreement.
4. Entire Agreement. This Agreement constitutes the entire agreement and
supercedes all prior agreements and understandings, both written and oral
between the parties hereto with respect to the subject matter hereof provided
that it does not supercede the disclaimer by the HRA of representations or
warranty found at the conclusion of Section 3.3 or the indemnification
provided in Section 8.2 of the Development Agreement.
5. Notices. All notices, requests, demands, or other communications to or
upon the parties hereto shall be deemed to have been duly given if to:
Developer
HRA
Breck School
123 Ottawa Avenue North
Golden Valley, MN 55422
7800 Golden Valley Road
Golden Valley, MN 55427
IN AGREEMENT, the parties hereto have executed this Agreement as of the day
and year first above written.
Breck School, a Minnesota non-profit
Authority
Corporation
By:
Name:
Title:
Housing and Redevelopment
In and for the City of Golden Valley
By:
Name:
Title:
By:
Name:
Title:
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Resolution 00-03
EXHIBIT C
April 18, 2000
EXHIBIT F
LIMITED WARRANTY DEED
FOR VALUABLE CONSIDERATION, HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF GOLDEN VALEEY, a public body corporate
created pursuantto 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, Breck School Ice Arena 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 . 2000, 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
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Resolution 00-03
EXHIBIT C
April 18, 2000
Agreement, exists prior to the recording of the Certificate of Completion, then Grantor
shall have all of the rights and remedies specified in Section 9.2of the Agreement.
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 VALLEY
By:
Gloria Johnson
Its Chair
By:
William S. Joynes
Its Director
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Resolution 00-03
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
EXHIBIT C
April 18, 2000
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.
THIS INSTRUMENT WAS DRAFTED BY:
Best & Flanagan LLP
4000 U.S. Bank Place
601 Second Avenue South
Minneapolis, Minnesota 55402-4331
Notary Public
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