03-07 HRA Resolution
Resolution 03-07
September 9, 2003
. Commissioner Johnson introduced the following and moved its adoption:
.
.
RESOLUTION CONDITIONALLY APPROVING SALE OF CERTAIN
REAL PROPERTY IN THE NORTH WIRTH PARKWAY
REDEVELOPMENT AREA
(Infinity Motel Holdings II, L.L.C.)
WHEREAS, the Housing and Redevelopment Authority in and for the City of Golden
Valley (hereinafter "HRA") and the City Council for the City of Golden Valley (hereinafter
"City") have approved the 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 Central Area in a mix of industrial, office, and hospitality/service uses
with productive reuse of excess railroad right-of-way and the former restaurant property
and augmented use of the permanent open space; and,
WHEREAS, Infinity Motel Holdings II, L.L.C. would like to exchange property to
develop additional parking and provide for the development of senior assisted living on Lot
1, Block 2, Schaper Addition, which was part of the former restaurant property; and
WHEREAS, the Housing and Redevelopment Authority finds the proposed uses a
productive reuse of the former restaurant property; and
WHEREAS, the HRA has revi~wed the terms of the proposal made by the
Developer and they appear to be reasonable and within the overall guidelines for
redevelopment of the North Wirth Parkway Redevelopment Area; and
WHEREAS, the HRA has determined the use value of the real property
contemplated by the Developer's proposal; and,
WHEREAS, pursuant to Minnesota Statutes 9469.029, the HRA has duly given
notice in the form attached as Exhibit A of a public hearing on the proposed sale of the
property legally described in Exhibit B (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.
.
.
.
Resolution 03-07 - Continued
September 9, 2003
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 RESOL VEDthat:
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.
ATTEST:
~7). A=
Thomas D. Burt, Dir<<r6r
Motion for the adoption of the foregoing resolution was seconded by Commissioner
Grayson; and upon a vote taken thereon, the following voted in favor thereof: Grayson,
Johnson, LeSuer, Loomis and Tremere; the following was absent: none; and the following
voted against the same: none; whereupon said resolution was declared duly passed and
adopted, signed by the Chair and his signature attested by the Director.
.
.
.
Resolution 03-07 - Continued
September 9,2003
EXHIBIT A
NOTICE OF PUBLIC HEARING
APPROVAL OF SALE OF REAL PROPERTY AT THE
NORTHEAST INTERSECTION OF HIGHWAY. 55 AND SCHAPER ROAD
TO INFINITY MOTEL HOLDINGS II L.L.C. 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, September 9, 2003, at 7:00 p.m. and will then
and there consider the proposed sale and terms thereof for the development of the
property located at the northeast intersection of Highway 55 and Schaper Road to
Infinity Motel Holdings II, L.L.C., for redevelopment pursuant to Minnesota Statutes
Section 469.029. The legal description of the property is as follows:
A portion of Lot 1, Block 2, Schaper Addition
The proposal is to construct parking lot facilities for an existing building. All interested
parties may appear in person or by counsel and be heard.
BY THE HOUSING AND REDEVELOPMENT AUTHORITY
IslThomas D. Burt, HRA Director
.
.
.
Resolution 03-07 - Continued
September 9, 2003
EXHIBIT B
LEGAL DESCRIPTION
That part of Lot 1 , Block 2, SCHAPER ADDITION, according to the recorded plat
thereof, Hennepin County, Minnesota, lying easterly of a line described as commencing
at the northeast corner of said Lot 1; thence South 00 degrees 35 minutes 58 seconds
West, assumed bearing, along an easterly line of said Lot 1, a distance of 262.00 feet to
a corner of said Lot 1; thence South 89 degrees 23 minutes 50 seconds East, along a
northerly line of said Lot 1, a distance of 148.12 feet to the beginning of the line to be
described; thence South 00 degrees 36 minutes 10 seconds West a distance of 159.00
feet to the south line of said Lot 1 and said line there terminating.
Resolution 03-07 - Continued
September 9; 2003
EXHIBIT C
. INFINITY MOTEL HOLDINGS II. LLC PRIVATE DEVELOPMENT AGREEMENT
.
.
THIS AGREEMENT, effective as of , 2003, is made and entered into by and
between THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF
GOLDEN V ALLEY, a public body corporate established and existing under Minnesota Statutes,
Section 469.001 et seq., with its principal offices at 7800 Golden Valley Road, Golden Valley,
Minnesota 55427 (the "HRA"), and INFINITY MOTEL HOLDINGS n, LLC, a Minnesota limited
liability company with its principal office located at 1865 West Wayzata Boulevard, Suite 260, Long
Lake, Minnesota 55356 ("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, with amendments on April 9,
1979, May 5, 1982 and February 16, 1988 (the "Plan"), 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 fonns of government aid and financial assistance; and
WHEREAS, in conjunction with the Sunrise Development, Inc. Private Development
Agreement between the HRA and Sunrise Development, Inc. ("Sunrise"), which provides for the
construction by Sunrise of a senior assisted living facility on a parcel in the Redevelopment Area that
is adjacent to property currently owned by Developer, Developer wishes to purchase from the BRA,
and the HRA wishes to sell to Developer, a parcel adjacent to Developer's existing property (the
"Development Property"), for construction thereon of paved surface parking; and
WHEREAS, Minnesota Statutes, Section 469.029, requires the adoption of a development
agreement between the parties setting forth the mutual rights and obligations of the parties in
accordance with the provisions of the Plan;
NOW, THEREFORE, in consideration ofthe foregoing, and in consideration ofthe mutual
terms and conditions contained herein, the parties hereby agree as follows:
.
.
.
KeSolutlon u;:s-u { - (.;ontlnued
September 9,2003
EXHIBIT C
TABLE OF CONTENTS
Page
ARTICLE I Definitions................................................................................................... .......... ..1
Section 1.1 Definitions................. .................... ... ........... .....................................1
ARTICLE II Representations and Warranties ............ ......... ................ ......... ........................... 3
Section 2.1 Representations and Warranties by the HRA...................................3
Section 2.2 Representations and Warranties by Developer ................................4
ARTICLE ill Title and Other Matters ................................................. ........... ........................... 5
Section 3.1 Marketable Title .................... ............ ....... ....... ................................. 5
Section 3.2 Planning Approvals..................................................... ..................... 6
Section 3.6 Environmental Matters....... .... .................. .............. .......................... 6
Section 3.3 Closing ....... ........ ..................... ............ ...... ....................................... 7
Section 3.4 Recording ..................................................... .................................... 7
Section 3.5 Real Estate Taxes and Special Assessments....................................8
Section 3.7 Use . ..................................................................................................8
Section 3.8 Condemnation............................................................. .......... ...........8
Section 3.9 Agreement with Sunrise........................ ........................................... 8
ARTICLE IV Construction of Improvements........................................................................... 8
Section 4.1 Construction of Improvements............ .... ..... .................................... 8
Section 4.2 Commencement and Completion of Construction.......................... 9
Section 4.3 Certificate of Completion ...... ................. ..... .................................... 9
Section 4.4 Deposit and Reimbursement ofHRA Expenses ............................10
ARTICLE V Insurance............................................................................................ ....... .......10
Section 5.1 Insurance..................................................................... ................... 10
ARTICLE VI Undertakings of the HRA ... ........................... ........... .......................................12
Section 6.1 Sale of Development Property ........................................................12
Section 6.2 Limitations on Financial Undertakings of the HRA ......................12
Section 6.3 HRA's Option to Terminate ...........................................................12
ARTICLE VII Mortgage Financing ....... ............ .......... .................. ..........................................13
Section 7.1 HRA's Option to Cure Default on First Mortgage .........................13
ARTICLE vrn Restrictions on Transfer; Indemnification .......................................................13
Section 8.1 Restrictions on Transfer .................................................................13
Section 8.2 Indemnification .... .... ................. ............ .......... ...............................14
ARTICLE IX Events of Default. ............... .............. ............... ........... .....................................14
Section 9.1 Events of Default Defined.............................................................. 14
Section 9.2 Remedies on Default................................. .....................................15
Section 9.3 No Remedy Exclusive................................. ...................................15
Section 9.4 No Additional Waiver Implied by One Waiver .............................15
ARTICLE X Additional Provisions ........... .................. ................... ......................................16
Section 10.1 Equal Employment Opportunity.................................................. 16
Section 10.2 Not for Speculation ......................................................................16
Section 10.3 Titles of Articles and Sections .....................................................16
Section 10.4 Notices and Demands ..................................................................16
Section 10.5 Counterparts............................................................................. ....17
11
.
.
.
Resolution 03-07 - Continued
September 9, 2003
EXHIBIT C
Section 10.6 Modification.............. ....... ............ ..... .......... ........... ......................17
Section 10.7 Interpretation and Amendment ....................................................17
Section 10.8 Severability............ ...................................................................... 17
Section 10.9 Duration....................................................................................... 17
Section 10.10 Binding Effect. ..................................... .......... ........................ ....17
Section 10.11 Consents..................................................................................... 1 7
Section 10.12 Certificates ................................................................................. 17
Section 10.13 No Additional Wavier Implied by One Waiver .........................17
ARTICLE XI Termination of Agreement by Developer ........................................................18
Section 11.1 Developer's Options to Terminate ...............................................18
Section 11.2 Effect of Termination.................. ............. ....................................18
Section 11.3 Developer's Remedies on Default by HRA .................................19
Section 11.4 No Remedy Exclusive.................................................................. 19
111
.
.
.
Resolution 03-07 - Continued
Exhibits:
A
B
C
D
E
F
EXHIBIT C
Legal Description of Development Property
Certificate of Completion
Preliminary Plans
Declaration
List of Environmental Reports
Limited Warranty Deed
IV
September 9, 2003
4
.
.
.
Resolution 03-07 - Continued
September 9, 2003
EXHIBIT C
ARTICLE I
Definitions
Section 1.1 Definitions. In this Agreement, unless a different meaning clearly appears
from the context:
"Agreement" means this Infinity Motel Holdings II, LLC Private Development Agreement by
and between The Housing and Redevelopment Authority in and for the City of Golden Valley,
.Minnesota, and Infinity Motel Holdings n, LLC, a Minnesota limited liability company, as the same
may be from time to time modified, amended or supplemented.
"Certificate of Completion" means the certification for the Development Property, in the form
ofthe 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 of the
Improvements for the Development Property.
"City" means the City of Golden Valley, Mimiesota.
. "Closing Date" or "Closing" means the date upon which the HRA conveys the Development
Property to Developer, which shall be on or after the Parties have obtained all necessary consents and
approvals required for construction ofthe Improvements. The Parties expect the Closing Date to be
on or about December 17, 2003. .
.
"County" means the County of Hennepin, Minnesota.
"Developer" means Infinity Motel Holdings n, LLC, a Minnesota limited liability company,
and its successors and ~ssigns under this Agreement.
"Development Plans" means the plans, specifications, drawings, and related documents on all
construction work to be performed by Developer on the Development Property, including all on-site
improvements to be performed, installed or constructed upon the Development Property pursuant to
this Agreement:' The Development Plans shall comply with all applicable City requirements and
other applicable laws and regulations. .
"Development Property" means the real property described in attached Exhibit A, to be
replatted with Developer's existing property and the Sunrise Property into a P.D.D. with two
separate lots.
"Event of Default" means an action by Developer listed in Section 9.1 of this Agreement.
"First Mortgage" means any first priority mortgage which is secured, in whole or in, part, by
Developer's interest in the Development Property, or any portion or parcel thereof, or any
I
.
.
.
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
Improvements constructed thereon, and which is a permitted encumbrance pursuant to the provisions
of Article vn of this Agreement.
"Holder" means the owner of the First Mortgage.
"HRA" means The Housil;lg and Redevelopment Authority in and for the City of Golden
Valley.
"Improvements" means paved surface parking for approximately cars, substantially
consistent with the Preliminary Plans attached as Exhibit C, and meeting the City Zoning Code
requirements, plus all other improvements 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.
"~" means either the HRA or Developer.
"Plan" means the North Wirth Parkway Redevelopment Plan, adopted by the City and the
HRA on September 18, 1978, and as amended through the date hereof.
"Preliminary Plans" means the preliminary development plans submitted by Developer for
the Development Property and the Improvements. The Preliminary Plans are attached as Exhibit C
and hereby approved. '
"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 for each square foot oftpe HRA
Parcel.
"Redevelopment Area" means the approximately 110 acres located in Golden Valley,
Minnesota that are subject to the Plan.
"State" means the State of Minnesota.
"Sunrise" means Sunrise Development, Inc., a Virginia corporation.
2
.
.
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
"Sunrise Property" means the real property being purchased by Sunrise from the HRA and
Developer for the construction of a senior living facility with approximately 80 units.
"Unavoidable Delays" means actual delays due to events directly affecting the Project which
are beyond the control of the Parties, including but not limited to actions of governmental authorities
other than the City or the HRA, labor disputes, unusually severe or prolonged bad weather, acts of
God, civil disturbances, accidents, fire or other casualty, injunctions, or other court or administrative
orders.
ARTICLE IT
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 'his Agreement and carry out its
obligations hereunder.
(b) The Redevelopment Area constitutes a Redevelopment Project pursuant to
Minnesota Statutes, Section 469.002;
(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) There are no legal proceedings pendingt or known to be thieatened or
contemplated, to which the HRA is a party, or to which any property of the HRA is subj ect,
which, if determined adversely, would indivKlually 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.
(f) The HRA shall act in good faith and use reasonable efforts to qbtain all
consents and approvals required for the performance of its obligations under this Agreement.
(g) The HRA is not aware of any eminent domain or condemnation
proceedings pending or known to be threatened affecting any portion of the Development
Property.
TJ:le 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. .
3
.
.
.
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
Section 2.2 Representations and Warranties bv Developer. Developer represents and
warrants that:
(a) Developer is a Minnesota limited liability company duly organized and in
good standing under the laws of the State.
(b) Developer is not in violation of any provisions in its organizational
documents, has power to enter into this Agreement and to perform its obligations hereunder,
and has duly authorized the execution, delivery and performance of this Agreement by proper
action, such that this Agreement is and shall remain binding and enforceaole against
Developer according to its terms.
(c) Neither the execution and delivery ofthis 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 Developer's organizational documents, or
any indenture, mortgage, agreement or instrument ofwha"tever nature to which Developer is
now a party or by which it is bound, or will constitute a default under any of the foregoing.
(d) There areno legal proceedings pending, or known to be threatened, to which
Developer is a party, or to which any property of Developer is subject, which, if determined
. adversely, would individually or in the aggregate have a material adverse effect on.
Developer's financial position, or prevent or impair Developer's ability to perform any
covenants or obligations under this Agreement.
(e) Developer has previously delivered to the HRA' s representatives copies ofits
most recent financial statements. The financial statements are materially true and complete,
and there have been no material adverse changes in Developer's financial condition since the
date of such statements.
(f) Developer has, or will have, the financial ability to perform.its obligations
under this agreement.
(g) Developer shall act in good faith and use its best efforts to obtain all consents
and approvals required for construction of the Impr()vements, and Developer shall comply
with all reasonable requirements imposed as conditions for such consents and approyals even
if such requirements involve changes to the Preliminary Plans or Development Plans (so long
as such changes are not substantial).
The above representations and warranties are true and complete as oithe date hereof, shall be true
and complete as of the Closing Date, and shall survive the Closing Date.
4
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
.
ARTICLE ill
Title and Other Matters
Section 3.1 Marketable Title. Within 30 days after Developer's execution of this
Agreement, the HRA shall furnish Developer with a commitment for the issuance of an owner's 1992
Form ALTA policy oftitle insurance with respect to the Development Property (the "Commitment"),
issued by First American Title Insurance Company (the "Title Company"), showing marketable title
in the HRA subject only to the following:
(a) Building, zoning and similar laws and ordinances;
(b) Mineral rights reserved to the State of Minnesota;
(c) Easements of record which will not interfere with Developer's proposed
development and use of the property;
(d) The lien of current real estate taxes, if any;
(e) The rights of fee owners, lienors and encumbrancers which the HRA shall
terminate prior to the Closing Date;
.
(f)
The restrictions and covenants contained in the Declaration attached as
Exhibit D, unless waived by the MPCA;
(g) Other restrictions, if any, expressly agreed to by Developer, including the
restrictions contained in this Agreement.
The Commitment shall include searches for bankruptcies; state and federal judgments; tax,
DCC 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 Commitment shall be updated by the HRA through the Closing
Date. The cost and expense ofthe Commitment and the title policy, based upon the Purchase Price
only, shall be paid by the HRA from the Deposit pursuant to Section 4.4. Any other title or policy
costs, including the cost of any extended coverage, shall be paid by Developer.
Developer shall also obtain a current as-built survey of the Development Property (the
"Survey") certified to Developer, Developer's lender and the Title Company, showing the location of
all improvements; showing all easements, roads, driveways, and identifying the same by recording
information; showing all applicable setback lines; showing any encroachments and otherwise
meeting AL T A standards. The Survey shall also include a flood plain and wetland certification by
the surveyor certifying the absence of the same from any portion of the Development Property. The
. parties agree that HRA, Developer and Sunrise shall share equally in the costs of the Survey.
5
.
.
.
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
Developer shall be allowed 60 days from receipt of the Commitment and the Survey to make
objections thereto, such objections to be made in writing or deemed waived. The HRA shall have 60
days from receipt of any objections to cure any objections, or the HRA shall obtain the agreement of
the title insurance company within such 60-day period to insure over the objections in a manner
agreeable to Developer in its reasonable discretion. If the HRA fails to complete either of those
actions within such 60-day period, and Developer does not waive such objections, then Developer
shall have the right to terminate this Agreement by giving written notice thereofto the HRA. Subject
to Developer's right to terminate under this paragraph, the Closing Date shall be extended for a
reasonable period to the extent necessary for the HRA to cure the objections. The condition of the
title shall permit the construction, use and maintenance of the Development Property in a manner
consistent with the Plan.
Section 3.2 Planning Approvals. Within 60 days after the date of this Agreement,
Developer and Sunrise, at their sole cost and expense, shall jointly apply to the City for approval of a
single P .U.D. that includes both the Project, the adjacent building and land owned by Developer, and
the Sunrise Property, with two separate lots. Developer shall use its best efforts to obtain such
approvals as soon as practicable, and they shall be a condition of closing. If Developer is unable to
obtain such approvals by June 1,2004, after using its best efforts, Developer may terminate this
Agreement by written notice to the HRA, and shall be returned any funds remaining in the Deposit
described in Section 4.4 in excess of accrued expenses, and any security provided under Section 4.5.
The P.U.D. may require Developer and Sunrise to enter into mutual cross-access and cross-
parking agreements, which agreements shall be in form reasonably satisfactory to the City.
Section 3.3 Geotechnical and Environmental Matters. The HRA has complied and shall
comply with all plans, orders, regulations or requirements issued by the MPCA, or any other
regulatory agency with jurisdiction in the matter, concerning the environmental condition of the
Development Property on or before the Closing Date. The HRA has been required by the MPCA to
make a declaration of restrictions and covenants and an affidavit concerning real property
contaminated with hazardous substances, a copy of which is attached as Exhibit D. This declaration
will be recorded and Developer is required to comply with its terms, except to the extent waived by
the MPCA.
Developer agrees that subsequent to the Closing Date and until the Certificate of Completion
is issued, it shall comply with all plans, orders, regulations or requirements concerning the
environmental condition of the Development Property issued by the MPCA, or any other regulatory
agency with jurisdiction in the matter.
The HRA shall make available to Developer the environmental reports for the
Development Property listed on attached Exhibit E. The parties acknowledge and agree that such
reports disclose the presence of pollutants and/or contaminants on the Development Property and/or
in the groundwater. The HRA shall also furnish Developer with copies of any legal notices it
receives relating to the environmental condition of the Development Property prior to the Closing
Date.Developer, at its sole cost and expense, shall obtain such other reports, investigations and
analysis of the environmental and geotechnical condition ofthe Development Property as it deems
6
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
.
necessary. If Developer notifies the BRA within 60 days after the date of this Agreement that
construction of the Improvements on the Development Property is not feasible due to environmental
or geotechnical conditions, Developer may terminate this Agreement by written notice to the HRA,
and shall be returned any funds in the Deposit described in Section 4.4 in excess of accrued
expenses, and any security provided under Section 4.5.
Subject to the foregoing paragraphs, the HRA makes no representation or warranty, express
or implied, concerning the presence on, in or under the Development Property of any toxic waste,
hazardous substances, or other pollution or contamination ("Hazardous Substances"). The HRA
disclaims any and all warranty, liability or responsibility to Developer in connection with the
presence of any Hazardous Substances on, in or under the Development Property or the ground
water. Developer accepts the Development Property "as is" with respect to Hazardous Substances.
.
Section 3.4 Closing. The Purchase Price shall be due and payable in full from Developer
at Closing in cash, or by cashier's or certified check. Upon tender to the HRA of the Purchase Price,
the HRA shall deliver to Developer a limited warranty deed in the form attached as Exhibit F for the
entire Development Property. The Deed shall be subject to the restrictions, reservations and
encumbrances of record, if any, all building and zoning laws and ordinances and all other local, state,
and federal laws and regulations, the terms and conditions of this Agreement, and such other
encumbrances as the HRA and Developer shall mutually agree, including but not limited to those
described in Section 3.1. The Deed shall also include any restrictions due to the prior status of the
Development Property as a State superfund site, or otherwise required by the MPCA. Delivery of the
Deed shall not cause termination of any provisions of this Agreement, except where expressly
provided in this Agreement.
All costs of the conveyance of the Development Property to Developer, including any and all
fees and charges relating to such conveyance, and filing or recording fees and any and all other taxes
and charges payable in connection with such conveyance, if any, shall be wholly borne by Developer,
except that the HRA shall pay its own legal fees. The HRA shall voluntarily take no actions to
encumber title, or fail to take any action necessary to prevent encumbrance oftitle, between the date
hereof and date of delivery of the Deed to Developer by the HRA pursuant to this Section.
All parties understand and acknowledge that the performance of the Developer and its duty to
acquire title to the Development Property at Closing is expressly contingent on (a) Developer's
receipt of all necessary consents and approvals necessary for construction ofthe Improvements, and
(b) proper subdivision of the Development Property, Developer's existing property, and the Sunrise
Property into buildable lots prior to or at Closing. This provision may be waived only in writing by
the Developer in its sole discretion.
The Closing is also contingent on the closing of the sale by the HRA and Developer of the
Sunrise Property to Sunrise. This contingency may only be waived if waived by both parties.
.
Section 3.5 Recording. Developer shall cause the title insurance company to promptly file
the Agreement and the Deed in the office ofthe Hennepin County Recorder. Developer shall pay all
costs of recording, including the State deed tax.
7
.
.
.
Resolution 03-07 - Continued
September 9.2003
EXHIBIT C
Section 3.6 Real Estate Taxes and Special Assessments. The HRA shall pay all real estate
taxes, and special assessments payable therewith, which are payable on the Development Property on
or before the Closing Date. Developer shall pay all real estate taxes and special assessments which
become payable after the Closing Date on the Development Property.
Section 3.7 Use. Developer shall (a) 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, (b) devote the Improved Parcel only to the uses permitted under
Agreement, or such other uses as may be agreed to by the City and the HRA, and (c) not unlawfully
discriminate in the use of the Development Property on account of race, color, religion, sex, age,
national origin, or political affiliation. If the Plan is subsequently amended in a material respect,
such amendment shall not bind Developer or the Development Property without Developer's consent,
which consent shall not be unreasonably withheld or delayed. To the extent that there are any
conflicts between this Agreement and the Plan, the provisions of this Agreement shall govern, and
the approval by the HRA of this Agreement shall constitute an amendment of the Plan.
Section 3.8 Condemnation. In the event that title to and possession of the building
Improvements or any material part thereof shall be taken in condemnation or by the exercise ofthe
power of eminent domain by any governmental body or other person (except the HRA) after the
Closing Date, Developer shall, with reasonable promptness after such taking, notify the HRA as to
the nature and extent of such taking. Upon receipt of any condemnation award, subject to the rights
of the Holder of a First Mortgage, Developer shall use the entire condemnation award first to pay the
reasonable costs and expenses of such taking, including but not limited to reasonable attorneys' fees
and appraisers' fees, and second to reconstruct the building Improvements to the extent practicable
(or, in the event only a part of the building Improvements have been taken, then to reconstruct such
part) upon the Development Property.
Section 3.9 Agreement with Sunrise. Developer has previously delivered a copy to the
HRA of its purchase agreement with Sunrise for Developer's sale of a portion of the Sunrise
Property to Sunrise. Developer shall also deliver copies to the HRA of any amendments promptly
after their execution. The HRA shall have the right to approve the agreement and any amendments
as a condition of closing, which approval shall not be unreasonably withheld or delayed.
ARTICLE IV
Approval of Development Plans and Construction of Improvements
Section 4.1 Approval of Development Plans. Developer agrees to submit to the HRA, as
soon as practicable after having received preliminary planning approvals from the City, the
Development Plans for the Improvements. The Development Plans shall take into consideration the
modifications requested by the City Council and its Planning Commission and provide for the
construction of the Improvements pursuant to the terms and conditions of this Agreement. The HRA
may require changes in the Development Plans consistent with this Agreement and the Plan in its
reasonable discretion prior to approving the Development Plans. If Developer desires to make any
8
Resolution 03-07 - Continued
September 9, 2003
EXHIBIT C
.
material change in the Development Plans after their approval by the HRA, Developer shall submit
the proposed change to the HRA for its approval, which approval may be granted by the HRA in its
sole discretion.
Section 4.2 Commencement and Completion of Construction. Developershall commence
construction of the Improvements within 180 days after the Closing Date, provided the Development
Plans have been approved by the HRA. Developer shall diligently prosecute construction of the
Improvements to completion and shall complete construction within 120 days after commencement
of construction. The times provided herein for commencement and completion of construction shall
also be extended to the extent of any Unavoidable Delays.
Developer agrees that it will construct the Improvements on the Development Property in
substantial conformance with the approved Development Plans for the Improvements and in
conformance with all applicable laws, regulations and ordinances. In addition, the permanent
drainage system shall be constructed in accordance with the requirements of the Bassett Creek
Watershed Management Commission for water quality and rate control. Developer agrees that the
scope and scale ofthe Improvements to be constructed shall not be significantly less than the scope
and scale ofthe Improvements as detailed and outlined in the Development Plans.
.
Subsequent to execution of this Agreement, and until issuance of the Certificate of
Completion, Developer shall make reports to the HRA, in such detail and at such times as may
reasonably be requested by the HRA, as to the actual progress of Developer with respect to
construction ofthe 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, in a manner that will not unreasonably interfere with construction of the
Improvements.
Section 4.3 Certificate of Completion.
(a) Promptly after the City's issuance of a Certificate of Occupancy for the
Improvements, the HRA will furnish Developer with a Certificate of Completion, in
substantially the form set forth in Exhibit B attached hereto. Such Certificate of Completion
shall be (and it shall be so provided in the Certificate of Completion itself) a conclusive
determination of satisfaction and termination of the agreements and covenants in this
Agreement with respect to the obligations of Developer, and this Agreement shall
automatically terminate, except for those provisions which by their terms are clearly intended
to survive termination. The Certificate of Completion shall be in recordable form..
.
(b) The HRA shall use reasonable efforts to provide the Certificate of Completion
as soon as practicable and the HRA agrees that it will not unreasonably withhold issuance of
the Certificate of Completion. The HRA may refuse to provide the Certificate of Completion
only in the event that Developer is in material default of a material provision of this
Agreement. If the HRA shall refuse or fail to provide the 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
9
Resolution 03-07 - Continued
~eptember~, LUU;:S
EXHIBIT C
.
adequate detail in what respects Developer has failed to complete the Improvements in
accordance with the provisions ofthis Agreement, or is otherwise in default under the terms
of this Agreement, and what measures or acts will be necessary, in the opinion ofthe HRA,
for Developer to take or perform in order to obtain such Certificate of Completion.
.
Section 4.4 Deposit and Reimbursement of HRA Expenses. Pursuant to a prior
Reimbursement Agreement between the HRA and Developer which is hereby terminated, $15,000
has been deposited with the HRA for the reimbursement of certain out-of-pocket expenses incurred
by the HRA in connection with the Project (the "Deposit"). The HRA shall treat the Deposit as a
separate account on its books, but the HRA may commingle the Deposit with its other funds for
purposes of investment and reinvestment. All interest earned on the Deposit shall accrue to the
HRA. The Deposit shall be applied by the HRA for the payment of surveying, environmental, title,
legal and other out-of-pocket expenses relating to this Agreement and paid or incurred by the HRA
between October 9,2001 and the earlier of (a) the Closing Date, or (b) the date oftermination of this
Agreement. Each time the amount ofthe Deposit is reduced to $5,000 or less, the HRA shall give
Developer written notice, and Developer shall immediately contribute an additional $10,000 to the
Deposit, subject to a maximum contribution to the Deposit of $30,000. The HRA shall provide
Developer with a reasonably detailed itemization for any amounts spent from the Deposit.
Developer shall receive a credit against the Purchase Price on the Closing Date for the remaining
balance in the Deposit and any amount paid from the Deposit. If this Agreement is terminated prior
to the Closing Date for any reason other than a default by Developer, the HRA shall return to
Developer any amount remaining in the Deposit in excess of any accrued expenses remaining to be
paid. If this Agreement terminates prior to the Closing Date as the result of a default by Developer,
Developer shall forfeit its right to the return of any funds from the Deposit. The HRA's rights under
this Section 4.4 shall not limit any other remedy to which it is entitled under this Agreement or at law
or equity due to an Event of Default by Developer, except to the extent that the HRA's damages are
reduced by any amounts received under this Section 4.4.
ARTICLE V
Insurance
Section 5.1 Insurance
(a) Developer shall provide and maintain, or cause to be maintained, at all times
during the process of constructing the Improvements, atits sole cost and expense, and, from
time to time at the request ofthe 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%) ofthe
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;
10
Resolution 03-07 - Continued
September 9, 2003
EXHIBIT C
.
(ii) Comprehensive general liability insurance (including operations,
contingent liability, operations of subcontractors, completed operations and
contractual liability insurance) together with an Owner's and Contractor's Protective
Policy with limits against bodily injury and property damage of not less than
$5,000,000 for each occurrence (to accomplish the above-required limits, an umbrella
excess liability policy may be used). The interest of the HRA shall be protected in
accordance with a clause in form and content satisfactory to the HRA; and
(iii) Worker's compensation insurance, with statutory coverage.
.
(b) All insurance required in this Article V shall be taken out and maintained in
responsible insurance companies selected by Developer which are authorized under the laws
of the State to assume the risks covered thereby. At the first time that any insurance is
required to be in effect hereunder, Developer will deposit with the HRA a certificate or
certificates or binders of the respective insurers evidencing that such insurance is in force and
effect. Unless otherwise provided in this Article V, each policy shall contain a provision that
the insurer shall not cancel or modify it without giving written notice to Developer and the
HRA at least thirty (30) days before the cancellation or modification becomes effective.
Upon the HRA's request, Developer shall furnish the HRA evidence 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.
(c) In the event the Improvements or any portion thereof is destroyed by fire or other
casualty, then Developer shall within 180 days after such damage or destruction (or within
three years in the event of damage or destruction to the Improvements in excess of
$1,000,000, provided Developer grades and landscapes the site to the HRA's reasonable
satisfaction), commence physical repair and reconstruction of 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, subj ect 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 ofthe Improvements, whether or not the Net Proceeds ofinsurance 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.
.
11
.
.
.
Resolution 03-07 - Continued
~eptember 8, LUU~
EXHIBIT C
ARTICLE VI
Undertakings of the BRA
Section 6.1 Sale of Development Property. As consideration for the purchase of the
Development Property and the construction of the Improvements by Developer on the Development
Property, the HRA agrees to complete, subject to the provisions of Section 6.2 below, the following
actions:
(a) Sale of the Development Property to Developer pursuant to the Deed on the
Closing Date;
(b) Use reasonable efforts with the City so that the Improvements may constitute
a permitted use under the zoning ordinance of the City; and
(c) Any other actions required pursuant to an express provision of this
Agreement.
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 ofthe 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
and other authorities to implement this Agreement and to permit Developer to construct, use
and maintain the Improvements as contemplated by this Agreement; and
(d) The HRA is not the subject of any involuntary court or administrative
proceeding seeking to enjoin or otherwise prevent the HRA from taking any action under this
Agreement.
In the event any of the above conditions are not met then, in that event, the HRA shall
provide Developer with a reasonable opportunity to cure or meet such conditions and upon said cure
the HRA shall be obligated to fully perform 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's Ootion to Terminate. (a) 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
12
.
.
.
Resolution 03-07 - Continued
September 9, 2003
EXHIBIT C
Agreement and Closing has not occurred by June 1,2004. Termination ofthis Agreement pursuant
to this Section 6.3 shall not affect the rights ofthe HRA to institute any action, claim or demand for
damages suffered as a result of breach or default of the terms ofthis Agreement by Developer, or the
HRA's rights under Sections 4.4, 4.5 or 8.3.
ARTICLE vn
Mortgage Financing
Section 7.1 HRA's Option to Cure Default on First Mortgage. Any First 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 thereunder, the mortgagee, within ten{l 0)
days after it has declared or given notice to Developer of a default, shall notify the HRA in writing
of:
(a) the fact of the default;
(b) the elements of the default; and
(c) the actions required to cure the default.
The HRA shall have the right to cure any such default which occurs prior to issuance ofthe
Certificate of Completion. The HRA shall have a period of 35 days after notice from a Holder to
effect a cure, provided that the HRA gives Developer advance written notice of its intentto 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 elltitled, 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, N.A. 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.
ARTICLE VIll
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, unless ended by
the terms of this Agreement, shall be binding upon their successors and assigns. The Parties also
agree that nothing contained in this Section 8.1 shall prohibit the leasing of the Improvements by
Developer.
13
.
.
.
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
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 any wrongful actions or omissions by Developer, its employees and agents, in
connection with the Project, except to the extent of any bad faith, gross negligence or intentional
misconduct by the HRA or other person seeking indemnification. This provision shall continue 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 pay the Purchase Price or otherwise perform its
obligations on the Closing Date.
(b) After the Closing Date, and until the Certificate of Completion has been
issued, failure by Developer to timely pay all real property taxes, assessments or other
charges assessed with respect to the Development Property.
(c) Subject to Unavoidable Delays, and extensions agreed to by the Parties,
failure by Developer to commence and complete construction ofthe Improvements pursuant
to the terms, conditions and limitations of Article IV of this Agreement.
(d) Until the Certificate of Completion has been issued, failure by Developer to
observe or perform any material covenant, condition, obligation or agreement on its part to
be observed or performed under this Agreement.
(e) Until the Certificate of Completion has been issued, filing by Developer in
any court, pursuant to any federal or State statute, of a petition in bankruptcy or insolvency,
or for reorganization, or for the appointment of a receiver or trustee of all or a portion of
Developer's property, or an assignment by Developer for the benefit of creditors.
(f) Until the Certificate of Completion has been issued, filing against Developer
in any court, pursuant to any federal or State statute, of a petition in bankruptcy or
insolvency, or for reorganization, or for appointment of a receiver or trustee of all or a
portion of Developer's properties, if such proceeding is not dismissed within 90 days after
commencement thereof.
14
Resolution 03-07 - Continued
September 9, 2003
EXHIBIT C
.
(g) Until the Certificate of Completion has been issued, commencement by the
Holder of any First Mortgage of foreclosure in the event of a default in any of the terms or
conditions of the First Mortgage.
(h) Until the Certificate of Completion has been issued, any merger,
consolidation, liquidation, reorganization or transfer of all or substantially all of Developer's
assets, unless Developer is the surviving entity in a merger.
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 ofthe default to Developer in the case of an Event of Default under Section 9.1(a),
(b), (c), or (d), and then only if such an Event of Default has not been cured within said 60 days or, if
such an Event of Default cannot be cured within 60 days, Developer does not provide assurances to
the HRA reasonably satisfactory to the HRA that such an Event of Default will be cured as soon as
reasonably possible and that it will not jeopardize the purposes ofthis 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) Ifthe Event of Default occurs prior to the Closing Date, the HRA may cancel
and rescind this Agreement.
(c) 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 escrow, letter
of credit or other security provided by Developer.
(d) Sue for damages, including delinquent taxes levied against the Development
Prop~rty, 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 construed to be a waiver thereof, but any such right and power may be exercised from time to time
and as often as may be deemed expedient.
Section 9.4 No Additional Waiver Implied bv One Waiver. In the event any agreement
. contained in this Agreement should be breached by any Party and thereafter waived by any other
15
.
.
.
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
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 Emplovment Opportunitv. Developer agrees that during the
construction of the Project neither it nor any ofthe 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 ofthe Development Property, and
its undertakings pursuant to this Agreement, are and will be used for the sole and express purpose of
redevelopment of the Development Property and not for speculation in land holdings.
Section 10.3 Titles of Articles and Sections. Any titles of the several parts, Articles and
Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in
construing or interpreting any of its provisions.
Section 10.4 Notices and Demands. Except as otherwise expressly provided in this
Agreement, a notice, demand or other communication under the Agreement by either party to the
other shall be sufficiently given or delivered if it is in writing dispatched by registered or certified
mail, postage prepaid, return receipt requested, or delivered personally; and,
(a) in the case of Developer, is addressed to or delivered personally to Developer
at:
1865 West Wayzata Boulevard, Suite 260
Long Lake, Minnesota 55356
Attention: David Lundberg
with copies to:
Kathleen N. Hellevik
Clearwater Development Group, LLC
1865 Wayzata Boulevard, Suite 207
Long Lake, Minnesota 55356
(b) in the case ofthe 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
16
.
.
.
Resolution 03-07 - Continued
September 9, 2003
EXHIBIT C
with copies to:
Allen D. Barnard
Best & Flanagan LLP
225 South Sixth Street, Suite 4000
Minneapolis, Minnesota 55402-4690
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 of a First Mortgage or by
a prospective Holder of a prospective First Mortgage to amend or supplement this Agreement, or to
subordinate its interest therein, the HRA will, in good faith, consider the request with a view to
granting the same, provided that such request is consistent with the terms and conditions of the Plan.
Section 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 issuance of the Certificate of Completion, except for those
provisions which are clearly intended by their terms to survive termination. This Agreement shall
survive the Closing Date and the HRA's delivery of any Deed to Developer.
Section 10.10 Binding Effect. Subject to the provisions of Article Vill, this Agreement is
binding upon, and shall inure to the benefit of, the successors and permitted assigns ofthe Parties.
Section 10.11 Consents. Any consent or approval required of a Party under this Agreement
shall not be unreasonably withheld or delayed.
Section 10.12 Certificates. Upon reasonable request from time to time, the HRA shall
execute and deliver written certificates to parties designated by Developer concerning whether this
Agreement is in effect, whether any defaults exist under this Agreement and other similar matters.
10.13 No Additional Waiver Implied by One Waiver. In the event any term contained in
this Agreement should be breached by any Party and thereafter waived by any other Party, such
17
.
.
.
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other
concurrent, previous or subsequent breach hereunder.
ARTICLE XI
Termination of Agreement by Developer
Section 11.1 Developer's Options to Terminate. In addition to any other rights to terminate
contained in this Agreement, this Agreement may be terminated by Developer by written notice to
the HRA if Developer is in compliance with all material terms of this Agreement and no Event of
Default by Developer is then existing; and
(a) Subject to Section 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) Closing has not occurred by June 1, 2004, unless extended by the Parties;
(c) Subject to Sections 2.2(f) and 3.2, if Developer does not receive prior to the
Closing Date all approvals and consents from governmental authorities which are reasonably
required for construction and use of the Improvements;
(d) Subject to Section 3.1, if Developer reasonably determines that completion
of the Project is not feasible due to title defects; or
(e) Subject to Section 3.3, if Developer determines that construction of the
Improvements is not feasible due to the environmental or geotechnical condition of 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 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 inSections 4.4 and 8.2, if this
Agreement is terminated pursuant to this Article XI, this Agreement shall be from such date forward
null and void and of no further effect; provided, however, that termination of this Agreement
pursuant to this Article XI shall not affect the rights of Developer to institute any action, claim or
demand for damages suffered as a result of breach or default of the terms ofthis Agreement by the
HRA.
18
.
.
.
Resolution 03-07 - Continued
September 9, 2003
EXHIBIT C
11.3 Developer's Remedies on Default by HRA. In the event of a default by the HRA
prior to the Closing Date, Developer may:
(a) cancel and rescind this Agreement and be entitled to immediate return of all
Deposit monies paid;
(b) initiate such action, including legal or administrative. action, as it deems
necessary for Developer to secure performance of any provision of this Agreement orrecover
any amounts for any damages suffered by Developer as a result of said Default.
11.4 No Remedy Exclusive. No remedy herein conferred upon or reserved to the
Developer is intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or. in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such right or power or shall
be construed to be a waiver thereof, but any such right and power may be exercised from time to time
and as often as may be deemed expedient.
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.
19
.
.
.
Resolution 03-07 - Continued
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
September 9, 2003
EXHIBIT C
THE HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF GOLDEN V ALLEY
By
Its
And
Its
INFINITY MOTEL HOLDINGS IT, LLC
By
Its
And
Its
The foregoing instrument was acknowledged before me this _day of , _,
by Jan LeSuer, Chair, and Thomas D. Burt, Director, of THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF GOLDEN V ALLEY, on behalf of the organization.
Notary Public
20
.
.
.
Resolution 03-07 - Continued
September 9, 2003
EXHIBIT C
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _ day of
_,by , and
of INFINITY MOTEL HOLDINGS II, LLC, a Minnesota limited liability
company, on behalf of the organization.
Notary Public
DRAFTED BY:
Best & Flanagan LLP
225 South Sixth Street, Suite 4000
Minneapolis, Minnesota 55402-4690
21
.
.
.
Resolution 03-07 (Continued)
September 9,2003
EXHIBIT A
LEGAL DESCRIPTION FOR DEVELOPMENT PROPERTY
That part of Lot 1, Block 2, SCHAPER ADDITION, according to the recorded plat
thereof, Hennepin County, Minnesota, lying easterly of a line described as commencing
at the northeast comer of said Lot 1; thence South 00 degrees 35 minutes 58 seconds
West, assumed bearing, along an easterly line of said Lot 1, a distance of 262.00 feet to a
comer of said LoU; thence South 89 degrees 23 minutes 50 seconds East, along a
northerly line of said Lot 1, a distance of 148.12 feet to the beginning of the line to be
described; thence South 00 degrees 36 minutes 10 seconds West a distance of 159.00 feet
to the south line of said Lot 1 and said line there terminating.
A-I
.
.
.
Resolution 03-07 - Continued
September 9, 2003
EXHIBIT C
EXHIBIT B
CERTIFICATE OF COMPLETION
THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF
GOLDEN V ALLEY~ a public body corporate (the "HRA"), and INFINITY MOTEL HOLDINGS IT,
LLC, a Minnesota limited liability company ("Developer"), previously entered into the Infinity Motel
Holdings IT, LLC 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:
It is hereby certified that all of the covenants in the Agreement have been duly and fully
performed by Developer as ofthe date hereof and that the rights and remedies of the HRA for breach
of such covenants are hereby released absolutely and forever insofar as they apply to the property
described above. The County Recorder in and for the County of Hennepin and State of Minnesota is
hereby authorized to accept for recording and to record the filing of this instrument. This instrument
shall be conclusive determination of the satisfactory termination of the Agreement.
THE HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF GOLDEN V ALLEY
By:
Its:
And:
Its:
B-1
.
.
.
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
STATE OF MINNESOTA)
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
by J an LeSuer and Thomas D. Burt, 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
225 South Sixth Street, Suite 4000
Minneapolis, Minnesota 55402-4690
B-2
Resolution 03-07 - Continued
.
.
.
i':--! ~6
I
r'" ~..
~ '"N_.
;
i ..- .-.
~1: r-ii,
Ic.a....u
i[()]
)
-:_-j[Ol
..- .[{]J
fHlo'l
............._...,.....i
'tS
CU
o
~
...
~
c.
CU
wi::
u
UJ
("'_""NN~ ...____')
IlIUIIJ
fBI- -
.lmg
lDJ;. __
~fi
!Dl___
"___.. _ L. _._
! -
--I~
:H
F'-'
.1 r-~:~~-
~l'-""N'-,
i [~~-~
Ii ! ----+-----
I I [l~~_-~. ~ :~:~r=-~
. f -- ....---i-...-
. ..,..---/ 'I }_~~:~~ ==~F~~=
.. . '.~ .~._~,...,- ,) (:'-=-:'~.:.'.~~:)
.....-.-.,.:....
.~.~..:;!.~~~.~ ~~~: ::..~~~ :i;..--~
IDJ
September 9,2003
EXHIBIT C
EXtillUTL
PRELIMINARY PLANS
LI
[-j
'j r".'."'-._._."...~-=._"._..~ ......" '--.--" ,~;:L.. ". .---.., .-.,.\
U I (.1
11. '--.1Y__-1
i ~ ~___):rli
I L_.~_.-.I . L..;,--..,~-..--.........,- .--J .1:..
\-~:UJ.-T:;r.;.....(:.:i-t-r:r::.;...~:-..rT-..U. ---r'["-J 'I'~' ---:~. '--;"-, ..r.,. ;,,1
. 4'''''( I .j' ,.\; .~. . '-'j' ' I -. ',! ..'''Ujll !:'If
''''~/.!:.htr:.-. \',0.16- ':"It>]'~i I I f ~h ~b ~~
~_~o..;,.bd do. \ """ I . I '..! I /1 ,'1 >;'
lCO"-"'" .--.........,! $;1
- .. o.--- tI) ."-1
IDJl
~ rbai.-~J-Prlr.JI ~1
103tt]] . ~ ~: I I I I I ! i _ ____._.1
~~ 11/1I/111'ljl .=~:~-j
EtJj~_~: ~~..:!:t ,.~: I, I~:__
------'1"--
--_:J=:
~I
II
ED3
" ,-",,'.-.
. .,.,"'". '. .,,~'
............
.~':.' .....
':<;;:..~-'
...,"
I
IJII
'.11
1[11
C-I
~
cu
~
~
....
==
woo4
cu
....
...
o
a
~
:s
=
o
rn
woo4
o
.~,:
Resolution 03-07 - Continued
EXHIBIT C
.
EXHIBIT C
PRELIMINARY PLANS
1fIIII~~ 1:1' II \llljO i; 1 ~! 11 ~ U 1;111 \ III J ~ I J 1 ~~
_~~L,ill;1 ~,i!d 'I ~i i 'II j J '-1111111 ~J~J ':n
.
.
September 9,2003
. . . 0 .
...~. .
. . . -. .
I
I: : : . . :
C-2
.
.
.
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
3. 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 maximumbenefit 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 behalfby
its duly authorized representatives this _ day of , 20_.
THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF GOLDEN
VALLEY
By:
Jan LeSuer
Its Chair
By:
Thomas D. Burt
Its Director
STATEOFMINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _ day of ,20_, by Jan
LeSuer and Thomas D. Burt, 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
225 South Sixth Street, Suite 4000
Minneapolis, Minnesota 55402-4690
011800/960702/257494 5
F-2
.
.
.
Resolution 03-07 - Continued
September 9, 2003
EXHIBIT C
EXHIBIT F
LIMITED WARRANTY DEED
FOR VALUABLE CONSIDERATION, THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF GOLDEN V ALLEY, a public body corporate created
pursuant to Minnesota Statutes, Section 469.001 et seq. ("Grantor"), hereby grants, bargains and
conveys to INFINITY MOTEL HOLDINGS II, LLC, a Minnesota limited liability company
("Grantee"), real property in Hennepin County, Minnesota, described as follows (the "Property"):
together with all hereditaments and appurtenances belonging thereto. Grantor, for itself and its
successors and assigns, hereby covenants with Grantee and its successors and assigns, that Grantor
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 Infinity Motel Holdings II, LLC. Private
Development Agreement dated , 2003, between Grantor and Grantee (the
"Agreement"), including but not limited to the Declaration of Restrictions and Covenants and
Affidavit Concerning Real Property Contaminated with Hazardous Substances, attached as an
exhibit to 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 issuance ofthe Certificate of Completion,
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.
2. If an "Event of Default" by Grantee, as defined in Section 9.1 of the Agreement,
which is not cured within the period provided in Section 9.2 of the Agreement, exists prior to the
recording of the Certificate of Completion, then Grantor shall have all of the rights and remedies
specified in Section 9.2 of the Agreement.
F-1
.
.
.
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
EXHIBIT E
LIST OF ENVIRONMENTAL REPORTS
Environmental Profile, 4900 Olson Memorial Highway, (PN# 2-00055, EnPro Assessment
Corp., September 15, .1989.
Environmental Profile II, 4900 Olson Memorial Highway, (PN# 1-00079, EnPro Assessment
Corp., October 26, 1989.
Results from Phase ill Investigation of Property at 4900 Olson Memorial Highway, Barr
Engineering, January, 1990.
Results for Investigation of Downgradient Groundwater Quality, City of Golden Valley Property,
Barr Engineering, July, 1990.
Minnesota Pollution Control Agency, Agenda Item Control Sheet, Request for Adoption of the
June 1993 Update of the Permanent List of Priorities Among Releases of Threatened Releases of
Hazardous Substances, Pollutants, or Contaminants, June 22, 1993.
Site'Investigation Work Plan, Former White House Restaurant Property and Schaper Natural
Area, Barr Engineering, May, 1994.
Results of Initial Phase Soil Investigation, Former White House Restaurant Property and Schaper
Natural Area, Barr Engineering, October, 1994.
Soil Management Plan, Frontage Road Construction Project, Former White House Restaurant
Property and Schaper Natural Area, Barr Engineering, January 16, 1995.
Barr Engineering Company Technical Memorandum, Results of Second Phase Subsurface
Investigation, Former White House Restaurant / Schaper Property, January 16. 1995.
Work Plan, Supplemental Site Characterization, Former White House Restaurant Property and
Schaper Natural Area, Barr Engineering, April, 1996.
Site Characterization Report / Response Action Plan, Former White House Restaurant Property
and Schaper Natural Area, Barr Engineering, December, 1996.
Voluntary Response Action Plan, Former White House Restaurant Property and Schaper Natural
Area, Barr Engineering, April, 1997.
Response Action Implementation Report, Former White House Restaurant Property and Schaper
Natural Area, Barr Engineering, June, 1998.
E-l
.
.
.
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
Accepted on behalf of
Minnesota Pollution Control Agency
Pursuant to Minn. Stat. 9 115B.17, subd. 15
By
James L. Warner, P.E.
Director
Majors and Remediation Division
Delegate of the Commissioner of the
Minnesota Pollution Control Agency
State of Minnesota )
)ss.
County of Ramsey )
The foregoing instrument was acknowledged before me this _day of
, 20_, by
James L.W arner, under the authority of the Commissioner of Minnesota Pollution Control Agency,
a Minnesota body politic, on behalf ofthe State of Minnesota.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Allen D. Barnard
Best & Flanagan LLP
225 South Sixth Street, Suite 4000
Minneapolis, MN 55402-4690
(612) 339-7121
D-8
.
.
.
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
In Witness Whereof, this instrument has been executed on this
day of
HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF GOLDEN VALLEY
By
Jan LeSuer
Chair
State of Minnesota )
) 5S.
County of Hennepin )
Jan LeSuer, being duly sworn by me under oath, has signed and acknowledged the
foregoing instrument before me this _ day of
, 20_, by and on behalf of the
Housing and Redevelopment Authority in and for the City of Golden Valley.
Notary Public
D-7
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
. fires, floods):
.
.
a. notify the Minnesota Duty Officer immediately of obtaining knowledge of
such emergency conditions; the current phone numbers for the Duty Officer are 1-800-422-0798
(Greater Minnesota only); (651) 649-5451 (Twin Cities Metro Area and outside Minnesota); fax (any
location) (651) 296-2300 and TDD (651) 297-5353 or 800-627-3529.
b. limit disturbance of contaminated media to the minimum reasonably necessary
to adequately respond to the emergency;
c. undertake precautions to minimize exposure to workers and neighbors of the
Property to contaminated media (e.g., provide appropriate types of protective clothing for workers
conducting the excavation, and establish procedures for minimizing the dispersal of contaminated
dust); and
d. prepare and implement a plan to restore the Property to a level that protects
public health and the environment. Submit to the MPCA a copy of such a plan for review and
approval prior to implementation of the plan. Submit a follow-up report after the plan is
implemented so that the MPCA can determine whether protection of the public health and the
environment has been restored.
9. Disclosures.
The Restrictions set forth in Section 2 ofthis Declaration shall be incorporated in full
or by reference into all instruments conveying an interest in and/or a right to use the property (e.g.,
easements, mortgages, leases).
D-6
Resolution 03-07 -Continued
September 9,2003
EXHIBIT C
. human health or welfare or the environment.
This Declaration and the covenants, grants and Restrictions herein may be amended if the
.
.
MPCA finds that the conditions set forth in Section 2 of this Declaration are inadequate to protect
public health or welfare or the environment as set forth in the MPCA' s May 7, 1997 RAP approval
letter.
If the HRA and the Commissioner agree to amend this Declaration, or if the Commissioner
decides to terminate or release this Declaration, the Commissioner shall, within 60 days after receipt
of written request from the owner ofthe Property, execute and deliver to the owner an instrument in
recordable form, amending, terminating,. or releasing this Declaration.
7. Grant and Conveyance to MPCA: Right of Entry.
Subject to the terms and conditions ofthis Declaration, the HRA grants and conveys
to the MPCA such rights and interest in the Property as are necessary and convenient to enforce the
Restrictions set forth in section 2 of this Declaration, including the right of the MPCA, its agents,
contractors and subcontractors and its successors, upon reasonable notice to the then-current owner
and at reasonable times, to enter from time to time upon the Property to inspect the Restricted
Area(s) and verify compliance with the Restrictions. The Restrictions declared and the rights and
interest granted under this Declaration of Restrictions shall run with the Property and bind the HRA,
-
its successors or assigns, all present or future owners of the Property, and all parties who now or
hereafter have or hold any right, title or interest in or to the Property.
8. Emergency Procedures.
The HRA covenants that the procedures set forth below shall be followed when an
emergency requires immediate excavation of contaminated soil in the Restricted Area(s) to repair
utility lines or other infrastructure on the Property, or to respond to other types of emergencies (e.g.,
D-5
Resolution 03-07 - Continued
September 9.2003
EXHIBIT C
. Except to the extent provided in an approved management plan, annual inspections,
maintenance and repair (if necessary), of the soil cover over the buried demolition debris as
described in the RAP Implementation Report.
4. Covenants.
The HRA hereby covenants that the Property shall not be held, transferred, sold,
conveyed, occupied, altered, or used in violation of the Restrictions set forth in Section 2 or the
Maintenance Requirements of Section 3 oftms Declaration.
S. Reservations.
Nothing contained in this Declaration shall in any way prohibit, restrict or limit the
HRA, its successors or assigns, from fully conveying, transferring, occupying or using the Property
for all purposes not inconsistent with the Restrictions orthe Maintenance Requirements.
.
Duration; Amendment.
In accordance with Minn. Stat. ~ 11SB.1?, subd. 15 and Minn. Stat. 9 84C.02( c), this
Declaration and the covenants, grants and Restrictions herein are unlimited in duration unless
6.
.
terminated, released and/or amended with the written consent of the Commissioner or her successor,
such consent not to be unreasonably withheld. Notwithstanding the foregoing, this Declaration and
the covenants, grants and Restrictions set forth herein may be terminated, released and/or amended
upon the occurrence and satisfaction of the following conditions:
a. Soil, ground water, and/or surface water sampling is conducted within the
Property with prior written notice to and in accordance with a plan approved by the MPCA, such
approval not to be unreasonably withheld; and
b. based on such samples the MPCA determines that contaminants in the soil,
ground water, and/or surface waters located within the Property no longer pose a potential threat to
D-4
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
. restrictions and uses to which the Property may be put, and specifies that such declarations shall
constitute covenants to run with the Property as provided by law and shall be binding on the HRA,
its successors or assigns, all present or future owners of the Property, and all parties who now or
hereafter have or hold any right, title or interest in the Property:
1. Definition as used herein, "Property" means the real property owned by the
HRA in Hennepin County, Minnesota, shown on Exhibit 1 attached hereto and legally described as
follows:
.
.
Lot 1, Block 2, Schaper Addition, Hennepin County, Minnesota
2. Use Restrictions. Subject to the terms and conditions of this Declaration and
the reservations and covenants contained herein, the HRA hereby declares and imposes the following
restrictions ("Restrictions") on the Property. Until a reasonable management plan for redevelopment
ofthe Property has been approved by the MPCA (as provided below), there shall be no excavating,
boring, drilling, grading, or construction activities that compromise the soil cover over the debris or
expose or relocate the buried demolition debris on the Property. The redeveloper of the Property
shall submit a reasonable management plan which reasonably minimizes any environmental risks
associated with redeveloping the Property. Once such a reasonable management plan has been
approved by the MPCA, such boring, drilling, grading and other construction activities may be
undertaken to the extent such activities comply with the terms ofthe plan. The MPCA's approval
may include conditions which the MPCA deems reasonable and necessary to protect public health or
welfare or the environment, and shall not be unreasonably withheld.
3. Maintenance Requirements.
D-3
Reso.lution 03-07 - Continued
September 9, 2003
EXHIBIT C
.
. WHEREAS, the HRA and City, acting together, conducted an investigation of the extent and
magnitude of the soil and ground water contamination at the property in 1994. The HRA and City's
goal was to adequately address the environmental problems associated with the disposal areas and
also achieve the beneficial redevelopment of the property. The investigation revealed that most of
the debris was placed on the Site as fill in wetland areas. The HRA and City prepared a Response
Action Plan (RAP) in April 1997 that was approved by the MPCA staff on May 7, 1997. The RAP
activities included clearing trees and brush from the dump area, consolidating several debris
stockpiles with the dump debris, placing a clean soil cover over the debris, and imposing institutional
controls; and
WHEREAS, the RAP was implemented during 1997 - 1998, involving the re-grading of the
dump debris, installing the soil cover, and planting vegetation. The HRAlCity conducted inspections
during 1999 and 2000 to assess the integrity of the soil cover and the condition of the shorelines
along a wetland on the west side of the property and along a storm water pond. The annual
.
inspections revealed that the soil cover and shorelines were intact and there were no areas of possible
exposure to dump debris. The HRA/City also conducted two rounds of annual ground water
monitoring, which did not show detections oflead or PARs in any of the samples; and
WHEREAS, the HRAlCity has successfully implemented the RAP, based on the follow-up
inspections and monitoring. In addition, the MPCA staff has determined the Property does not
present a risk to human health or the environment, and removed the Property from the state's
Permanent List of Priorities during June 2002; and
WHEREAS, the HRA has agreed to place a Restrictive Covenant on the Property for the
purpose of protecting public health or welfare or the environment.
NOW, THEREFORE, the HRA makes the following declarations as to limitations,
D-2
.
.
Resolution 03-07 - Continued
September 9,2003
EXHIBIT C
EXHIBIT D
DECLARATION
DECLARATION OF RESTRICTIONS AND COVENANTS
AND AFFIDAVIT CONCERNING REAL PROPERTY CONTAMINATED WITH
HAZARDOUS SUBSTANCES
(Lot 1, Block 2, Schaper Addition, Hennepin County)
(Redevelopment Parcel)
THIS DECLARATION AND AFFIDAVIT is made by the Housing and Redevelopment
Authority in and for the City of Golden Valley (hereinafter "HRA"). The facts stated herein by the
HRA are stated under oath and are intended to fulfill the disclosure requirements of Minn. Stat.
~ 115B.16, subd. 2 (2002).
WITNESSETH:
WHEREAS, the HRA is the fee owner of certain real property located in Hennepin County,
Minnesota, as described herein (the "Property"); and
WHEREAS, a portion of the Property was the site of release(s) of certain hazardous
substances or pollutants and contaminants; and
WHEREAS, demolition debris was dumped at the property during the 1950's and 1960's,
and included wood, brick, concrete, roofing materials, asphalt, and broken battery materials. The
primary contaminates detected at the Property include polycyclic aromatic hydrocarbons (pAHs)
from the roof materials, asphalt, and other tarry materials, and lead from the battery casings;
WHEREAS, pursuant to the Land Recycling Act of 1992, as amended, the HRA, and City of
Golden Valley ("City"), acting together, requested technical assistance and liability protection from
the Minnesota Pollution Control Agency ("MPCA") Voluntary Investigation and Cleanup (VIC)
. Program on March 16, 1994; and
D-1