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03-12 HRA Resolution Resolution 03-12 December 9, 2003 . Commissioner Loomis introduced the following and moved its adoption: RESOLUTION CONDITIONALLY APPROVING SALE OF CERTAIN REAL PROPERTY IN THE NORTH WIRTH PARKWAY REDEVELOPMENT AREA (Sunrise Senior Living, Inc.) WHEREAS, the Housing and Redevelopment Authority in and for the City of Golden Valley (hereinafter "HRA") and the City Council for the City of Golden Valley (hereinafter "City") have approved the North Wirth Parkway Redevelopment Planas 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, Sunrise Senior Living, Inc. would like to develop 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 reviewed the terms of the proposal made by the Developer and they appear to be reasonable and within the overall guidelines for redevelopment of the North Wirth Parkway Redevelopment Area; and WHEREAS, the HRA has determined the use value ofthe 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; and, WHEREAS, terms and conditions established by Resolution 03-08 for the sale of land to Sunrise Development, Inc. are no longer applicable and new terms and conditions have been negotiated. 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 . . . Resolution 03-12 - Continued December 9, 2003 3. The use value of the Subject Property is hereby established as $5 per square foot. 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 dev opment agreement attached hereto as Exhibit C so modifies it. ATTEST: ~. ~7)..~ Thomas D. Burt, Dirj6t6r . Motion for the adoption of the foregoing resolution was seconded by Commissioner Johnson; and upon a vote taken thereon, the following voted in favor thereof: Grayson, Johnson, LeSuer, Loomis and Tremere; and the following voted against the same: none; the following was absent: none; whereupon said resolution was declared duly passed and adopted, signed by the Chair and his signature attested by the Director. . . . Resolution 03-12 -Continued December 9, 2003 EXHIBITA NOTICE OF PUBLIC HEARING APPROVAL OF SALE OF REAL PROPERTY AT THE NORTHEAST INTERSECTION OF HIGHWAY 55 AND SCHAPER ROAD TO SUNRISE DEVELOPMENT, INC. FOR REDEVELOPMENT NOTICE IS HEREBY GIVEN that the Housing and Redevelopment Authority (HRA) of Golden Valley, Minnesota will meet at the Golden Valley City Hall, Council Chambers, 7800 Golden Valley Road, on Tuesday, December 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 Sunrise Development, Inc., 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 an 80 unit senior assisted living facility. All interested parties may appear in person orby counsel and be. heard. BY THE HOUSING AND REDEVELOPMENT AUTHORITY Is/Thomas D. Burt, HRA Director . . . Resolution 03-12 - Continued December 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 westerly of a line described as commencing at the northeast corner of said Lot 1; thence South 00 degrees 35 minutes 58 seconds West, 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 point 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 03-12 EXHIBIT C December 9,2003 SUNRISE SENIOR LIVING. INC. PRIVATE DEVELOPMENT AGREEMENT THIS AGREEMENT, effective asofDecember _,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, GoldenValley, Minnesota 55427 (the "HRA"), and SUNRISE SENIOR LNING, INC., a Delaware corporation with its principal office located at 7902 Westpark Drive, McLean, Virginia 22102 ("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 ofthe Redevelopment Area through various forms of government aid and financial assistance; and WHEREAS, the HRA owns a parcel in the Redevelopment Area (the "HRA Parcel"), which Developer wishes to purchase from the HRA; and WHEREAS, Developer has also agreed to purchase a parcel adjacentto the HRA Parcel (the "Adjacent Parcel") from Infinity Motel Holdings IT, LLC; and WHEREAS, Developer wishes to combine the HRA Parcel with the Adjacent Parcel and construct thereon a senior assisted living facility with approximately 80 units (the "Project"); 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 ofthe Plan; NOW, THEREFORE, in consideration of the foregoing, and in consideration of the mutual terms and conditions contained herein, the parties hereby agree as follows: Resolution 03-12 EXHIBIT C December 9,2003 . TABLE OF CONTENTS . ARTICLE I Definitions Section 1.1 Definitions ARTICLE II Representations and Warranties Section 2.1 Representations and Warranties by the HRA . Section 2.2 Representations and W arrantiesby Developer ARTICLE III Title and Other Matters Section 3.1 Marketable Title Section 3.2 Planning Approvals Section 3.3 . Feasibility Study Period Section 3.4 Environmental Matters Section 3.5 Closing Section 3.6 Recording Section 3.7 Real Estate Taxes and Special Assessments Section 3.8 Use Section 3.9 Condemnation Section 3.10 Agreement with Infinity ARTICLE IV Approval of Development Plans and Construction of Improvements Section 4.1 Approval of Development Plans Section 4.2 Commencement and Completion of Construction Section 4.3 Certificate of Completion Section 4.4 Deposit and Reimbursement of HRA Expenses Section 4.5 Earnest Money Section 4.6 Letter of Credit ARTICLE V Insurance Section 5.1 Insurance ARTICLE VI Undertakings of the HRA Section 6.1 Sale of Development Property Section 6.2 Limitations on Financial Undertakings of the HRA Section 6.3 HRA's Option to Terminate ARTICLE VII Mortgage Financing Section 7.1 Approval of Mortgage Section 7.2 Notice of Default; Copy to Mortgagee Section 7.3 Mortgagee's Option to Cure Defaults Section 7.4 HRA's Option to Cure Default on First Mortgage ARTICLE VIII Restrictions on Transfer; Indemnification Section 8.1 Restrictions on Transfer Section 8.2 Indemnification ARTICLE IX 'Events of Default Section 9.1 Events of Default Defined Section 9.2 Remedies on Default Section 9.3 No Remedy Exclusive Section 9.4 No Additional Waiver Implied by One Waiver . 11 Page 1 1 3 3 4 5 5 6 7 7 8 8 8 8 9 9 10 10 10 11 12 12 12 13 13 14 14 15 15 16 16 16 16 17 18 18 18 18 18 19 20 20 .. . . Resolution 03-12 December 9,2003 EXHIBIT C ARTICLE X Additional Provisions Section 10.1 Equal Employment Opportunity Section 10.2 Not for Speculation Section 10.3 Titles of Articles and Sections Section IDA. Notices and Demands Section 10.5 Counterparts Section 10.6 Modification Section 10.7 Interpretation and Amendment Section 10.8 Severability Section 10.9 Duration Section 10.10 Binding Effect SectionlO~ 11 Consents Section 10.12 Certificates Section 10.13 No Additional Wavier hnplied by One Waiver ARTICLE XI Termination of Agreement by Developer Section 11.1 Developer's Options to Terminate Section 11.2 Effect of Termination Section 11.3 Developer's Remedies on Default by HRA Section 1104 NoRemedy Exclusive III 20 20 20 21 21 22 22 22 22 22 22 22 22 22 23 23 23 24 24 . . . Resolution 03-12 Exhibits: Al A2 B C D E F EXHIBIT C Legal Description for Adjacent Parcel Legal Description for Infinity Development Parcel Certificate of Completion Preliminary Plans Declaration List. of Environmental Reports Limited Warranty Deed IV December 9,2003 . . . Resolution 03-12 EXHIBIT C December 9,2003 ARTICLE I Definitions Section 1.1 from the context: Definitions. In this Agreement, unless a different meaning clearly appears "Adiacent Parcel" means the real property described in attached Exhibit AI, which Developer is purchasing from Infinity. "Agreement" means this Sunrise Development, Inc. Private Development Agreement by and between The Housing and Redevelopment Authority in and for the City of Golden Valley, Minnesota, and Sunrise Development, Inc., a Virginia corporation, 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 of the certificate contained in Exhibit B attached to and made a part of this Agreement, provided to Developer pursuant to Section 4.3 ofthis Agreement upon satisfactory completion of the Improvements for the Development Property. "City" means the City of Golden Valley, Minnesota. "Closing Date" or "Closing" means the date upon which the HRA conveys the HRA Parcel to Developer, which shall be on or after the Parties have obtained all necessary consents and approvals required for construction of the Improvements. The Parties expect the Closing Date to be on or about May 15, 2004. "County" means the County of Hennepin, Minnesota. "Developer" means Sunrise Development, Inc., a Virginia corporation, and its successors and assigns under this Agreement. "Development Plans" means the plans, specifications, drawings, and related documents on all construction work to be performed by Developer on the Development Property, including all on-site improvements. to be performed, installed or constructed upon the Development Property pursuant to this Agreement. Such plans shall include, at a minimum, for each building or other structure to be constructed on the Development Property, at least the following: (i) site plan; (ii) floor plan for each floor; (iii) elevations (all sides) and exterior materials; and (iv) . landscape plan; and shall also include adequate plans, drawings and specifications relating to all driveways, walks, parking, and other improvements to be constructed upon the Development Property by Developer. . Such plans shall. also include the plans, drawings and specifications for the drainage system for the Development Property, and the drainage pond to be constructed by Developer on the Development Property. The Development Plans shall comply with all applicable City requirements and other applicable laws and regulations. 1 . . . Resolution 03-12 EXHIBIT C December 9, 2003 "Development Property" means the Adjacent Parcel and the HRA Parcel, to bereplatted 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 Improvements constructed thereon, and which is a permitted encumbrance pursuant to the provisions ofArtic1e VII of this Agreement. "Holder" means the owner ofthe First Mortgage. "HRA" means The Housing and Redevelopment Authority in and for the City of Golden V alley. "HRA Parcel" means the real property described as Lot 1, Block 2, Schaper Addition, excluding the Infinity Development Parcel. "Improved Parcel" means the Development Property and the completed Improvements hereon. "Improvements" means a senior assisted living facility with approximately 80 units, substantially consistent with the Preliminary Plans attached as Exhibit C, a drainage pond that meets all applicable laws and regulations, and parking that meets the City Zoning Code 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, but not including tenant improvements. The Improvements shall have a construction cost of approximately $9,000,000 upon completion. "Infinity" means Infinity Motel. Holdings II, LLC. "Infinity Development Parcel" means the real property described in Exhibit A2. "Net Proceeds" means any proceeds paid by an insurer to Developer, the Holder of the First Mortgage, or the BRA 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. "~" 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. 2 . . . Resolution 03-12 EXHIBIT C December 9, 2003 "Preliminary Plans" means the preliminary development plans submitted by Developer for the Development Property and the Improvements, including an architect's rendering ofthe design ofthe buildings and specifications for the exterior materials. The Preliminary Plans are attached as ExhibitC and hereby approved. "Proiect" means the construction and operation ofthe Improvements by Developer on the Development Property pursuant to the terms of this Agreement. "Redevelopment Area" means the approXImately 110 acres located in Golden Valley, Minnesota that are subject to the Plan. "State" means the State of Minnesota. "Unavoidable Delavs" means actual delays due to events directly affecting the Project which are beyond the control of the Parties, including but not limited to 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 II Representations and Warranties Section 2.1 Representations and W arrantiesbv 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; (c) The HRA has examined this Agreement, and has detennined 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 pending, or known to be threatened or contemplated, to which the HRA is a party, or to which any property of the HRA is 3 . . . Resolution 03-12 EXHIBIT C December 9,2003 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. (f) The HRA shall act in good faith and use reasonable efforts to obtain 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. The above representations and warranties are true and complete as ofthe date hereof, shall be true and complete as of the Closing Date, and shall survive the Closing Date. Section 2.2 Representations and Warranties by Developer. Developer represents and warrants that: (a) Developer is aDelaware corporation duly organized and in good standing under the laws of Delaware, and in good standing under the laws of Minnesota. (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 enforceable against Developer according to its terms. (c) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement, is prevented or limited by, or in conflict with.or will result in a breach of, the terms, conditions or provisions of Developer's organizational documents, or any indenture, mortgage, agreement or instrument of whatever nature to which Developer is now a party or by which it is bound, or will constitute a default under any of the foregoing. (d) There are no legal proceedings pending, or 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. (e) Developer has previously delivered to the HRA' s representatives copies of its unaudited balance sheet and income statement for 2002. Such 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. 4 . . . Resolution 03-12 EXHIBIT C December 9,2003 (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 Improvements, and Developer shall comply with all reasonable requirements imposed as conditions for such consents and approvals 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 ofthe date hereof, shall be true and complete as of the Closing Date, and shall survive the Closing Date. 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 of title insurance with respect to the HRA Parcel (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, unless waived by the MPCA; and I (g) Otherrestrictions, ifany, 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 5 . . . Resolution 03-12 EXHIBIT C December 9,2003 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, inc1udingthe 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 ALT 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 Infinity shall share equally in the costs ofthe Survey. Developer shall be allowed 60 days from receipt of the Commitment and 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. Ifthe BRA 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 thereof to the BRA. 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 BRA 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 Infinity, at their sole cost and expense, shall jointly apply to the City for approval ofa single P.D.D. that includes both the Project and the neighboring building and land owned by Infinity, 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 BRA, and shall be returned any funds remaining in the Deposit described in Section 4.4 in excess of accrued expenses, any earnest money eligible to be returned under Section 4.5 and any security provided under Section 4.6. The P.D.D. may require Developer and Infinity to enter into mutual cross-access and cross-parking agreements, which agreements shall be in form reasonably satisfactory to the City. Section 3.3 Feasibility Study Period. Developer, at its sole cost and expense, shall obtain such other reports, investigations and analysis of the financial, environmental and geotechnical condition ofthe Development Property and the Project as it deems necessary. If Developer notifies the BRA within sixty (60) days after the date of this Agreement (the "Feasibility Study Period") that construction of the Improvements on the Development Property 6 . . . Resolution 03-12 EXHIBIT C December 9,2003 is not feasible due to financial, -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 inSection 4.4 in excess of accrued expenses, any earnest money eligible to be returned under Section 4.5 and any security provided under S-ection 4.6. Section 3.4 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 ofthe HRA Parcel 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 Developeris 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 DevelopmentProperty 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. 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 HRA Parcel "as is" with respect to Hazardous Substances. The HRA agrees to sponsor and support grant applications, on behalf of Developer, for the Development Property for those certain grant programs which provide for the payment of expenses related to the investigation and clean-up of environmental contamination. These grant programs include, but are not limited to, The Minnesota Department of Trade and Economic Development Environmental Investigation and Clean-up Grants, the Metropolitan Council Tax Base Revitalization Grant Program and the Hennepin County Polluted Lands Clean-up Program. Within a reasonable time before the due date for any grant application, Developer shall provide the HRA for its review and approval all information necessary to complete the application. 7 . . . Resolution 03-12 EXHIBIT C December 9, 2003 Section 3.5 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 warrantydeed in the form att.i:lched as Exhibit F for the entire HRA Parcel. 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 HRA Parcel 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 HRA Parcel to Developer, including any and all fees and charges relating to such conveyance, and filing or recording fees and anyand all other taxes and charges payable in connection with such conveyance, if any, shall be wholly borne by Developer, except that theHRA 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 and the Infinity Development Parcel 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 ofthe HRA's sale to Infinity ofthe Infinity Development Parcel, and the closing of Infinity's sale to Developer of the Adjacent Parcel. This contingency may only be waived if waived by both parties. Section 3.6 Recording. Developer shall cause the title insurance company to promptly file the Agreement and the Deed in the office of the Hennepin County Recorder. Developer shall pay all costs of recording, including the State deed tax. Section 3.7 Real Estate Taxes and Special Assessments. The HRA shall pay all real estate taxes, and special assessments payable therewith, which are payable on the HRA Parcel 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 3.8, 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 8 . . . Resolution 03-12 EXHIBIT C December 9,2003 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 3.9 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 of the power of eminent domain by any governmental body or other person (excepttheHRA) 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 h'nprovements have been taken, then to reconstruct such part) upon the Development Property. Section 3.10 Agreement with Infinity. Developer has previously delivered a copy to the HRA of its purchase agreement with Infinity for Developer's purchase of the Adjacent Parcel. 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. 9 . . . Resolution 03-12 EXHIBIT C December 9,2003 ARTICLEN Approval of Development Plans and Construction of Improvements Section 4.1 Approval of Development Plans. Developer agrees to submitto the HRA, as soon as practicable after having received preliminary planning approvals from the City, the DevelopmentPlans 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.ofthis 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 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. The Developer shall have a period of one hundred (100) days following the last day of the Feasibility Study Period (the "Contingency Period") and use best efforts to secure all governmental approvals, necessary in the sole discretion of the Developer, and as further described in this Section 4.1 and Section 3.2 above, to construct the Improvements on the Development Property. If Developer notifies the HRA before the end of the Contingency Period that it cannot obtain all necessary governmental approvals for the construction of the Improvements on the Development Property, then Developer may tenninate this Agreement by written noticeto the HRA and shall be returned any funds in the Deposit described in Section 4.4 in excess of accrued expenses, any earnest money eligible to be returned under Section 4.5 and any security provided under Section 4.6. Section 4.2 Commencement and Completion of Construction. Developer shall 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 15 months 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 thatit will construct the Improvements on the Development Property in substantial conformance with the approved Development Plans for the Improvements and in conformance with all applicable laws, regulations and ordinances. In addition, the permanent drainage system and drainage pond shall be constructed in accordance with the requirements of the Bassett Creek Watershed Management Commission for water quality and rate control. Developer agrees that the scope and scale of the Improvements to be constructed shall not be . significantly le13s than the scope and scale of the Improvements as detailed and outlined in the Development Plans. 10 Resolution 03-12 EXHIBIT C December 9,2003 . Subsequent to executioIl of this Agreement, and until issuance of the Certificate of Completion pursuant to Section 4.3, Developer shall make reports. to the HRA, in such detail and at such times as may reasonably be requested by the HRA? as to the actual progress of Developer with respect to construction of the Improvements. Developer also agrees that designated representatives of the HRA may enter upon the Development Property during the construction of the Improvements to inspect such construction, in a manner that will not unreasonably interfere with construction of the Improvements. Upon issuance of the Certificate of Completion, the HRA shall reimburse Developer for out-of-pocket costs and expenses actually incurred by Developer after the Closing Date for piles, pile caps and grade beams used in construction of the Improvements, in excess of normal construction methods, and approved in advance by the HRA. All such expenses shall be documented by invoices or other billing statements and are limited to a maximum of$400,000. Section 4.3 Certificate of Completion. . (a) Promptly after the City's issuance of a Certificate of Occupancy for the shell 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. Ifthe 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 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 ofthe HRA, for Developer to take or perform in order to obtain such Certificate of Completion. . 11 . . . Resolution 03-12 EXHIBIT C December 9,2003 Section 4.4 Deposit and Reimbursement of HRA Expenses. Pursuant to a Reimbursement Agreement between the HRA and Developer~$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 BRA 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 May 1, 2003 and the earlier of (a) the Closing Date, or (b) the date of termination of this Agreement. Eachtime the amount of the Deposit is reduced to $5,000 orless; the HRA shall give'Developer written notice, and Developer shall immediately contribute an additional $10,000 to the Deposit, subject toa 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. If this Agreement is terminated prior to the Closing Date for any reason other than a default by Developer, the HRAshall 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'srights 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. Section 4.5 Earnest Money. Upon execution of this Agreement by Developer and the HRA, Developer shall deposit the sum of Fifty Thousand and no/1 00 Dollars ($50,000.00) with the HRA as Earnest Money for this transaction. The Earnest Money shall become the HRAs at closing, except as herein noted, and credited against the purchase price. On the date which is thirty (30) days after the commencement ofthe Feasibility Study Period, if this Agreement has not been terminated by Developer pursuant to its terms, $25,000.00 of the Earnest Money previously deposited with the HRA shall become nonrefundable to Developer upon termination of this Agreement without closing. ' Section 4.6 Letter of Credit. At closing, Developer shall deliver to the HRA, at Developer's sole cost and expense, an irrevocable letter of credit in the amount of$500,000, issued by a reputable bank and in a form previously approved by the HRA, which shall secure all of Developer's obligations under this Agreement. The initial letter of credit provided under this Section shall provide for expiration in not less than one year from date of issue. At least 30 days prior to the expiration of any letter of credit provided under this Section, Developer shall provide the HRA with a replacement Jetter of credit that shall continue for not less than one year or, if earlier, until 30 days after the expected completion date. The replacement letter of credit shall be issued by a reputable bank and in a form previously approved by the HRA. Ifthe replacement letter of credit meets these criteria, the previous letter of credit shall be returned promptly to Developer. If Developer fails to deliver any letter of credit or replacement letter of credit, Developer shall be in default hereunder with no opportunity to cure and the HRA may immediately draw upon any letter of credit then in effect. 12 . . . Resolution 03-12 EXHIBIT C December 9, 2003 Any letter of credit provided under this Section shall permit the HRA to draw upon it for the full face amount thereof in the Event of Default as defined in Section 9.1 hereof (but only after the expiration of any period to cure provided in Section 9.2), or immediately in the event Developer fails to comply with any obligation stated in this Section with respect to the replacement letters of credit. Developer's obligation to maintain a letter of credit under this Section shall terminate on issuance of the Certificate of Completion to'Developer. The HRA's rights with respect to the letter of credit provided under this Section shall not limit any other remedy to which it is entitled under this Agreement or at law or equity, except to the extentthat the HRA'sdamages are reduced by its recovery under the letter of credit. ARTICLE V Insurance Section 5.1 Insurance (a) Developer shall provide an.d maintain,. or cause to be maintained, at all times during the process of constructing the Improvements, at its sole cost and expense, and, fromtime 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 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 Developerwhich 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 13 . . . Resolution 03-12 EXHIBIT C December 9, 2003 and effect. UnlessotherwisepTovided 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 BRA 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 BRA'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, subject to the rights ofthe 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 of insurance received by Developer for such purposes are sufficient to pay for . the same. Any Net Proceeds remaining after completion of construction shall be disbursed to Developer, subject to the rights ofthe Holder of the First Mortgage. ARTICLE VI Undertakings of the BRA Section 6.1 Sale ofDevelooment ProlJertv. As consideration for the purchase ofthe HRA Parcel 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 ofthe HRA Parcel 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 ofthe City; and (c) . Any other actions required pursuant to an express provision of this Agreement. 14 . . . Resolution 03-12 EXHIBIT C December 9,2003 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) TheHRAand 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 theHRA 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 ofthe 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 Option 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 Agreement and Closing has not occurred by June 1,2004. Termination of this Agreement pursuant to this Section 6.3 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 ofthis Agreement by Developer, or the HRA's rights under Sections 4.4, 4.5, 4.6 or 8.3. 15 .. . . Resolution 03-12 EXHIBIT C December 9,2003 ARTICLE VII Mortgage Financing Section 7.1 Approval of Mortgage. Any First Mortgage on the Development Property prior to issuance of the Certificate of Completion shall require the prior written approval of the HRA's Director. Developer may reply upon any approval granted hereunder by the HRA' s Director without additional action by the HRA. Approval shall not be unreasonably withheld or delayed, and shall be given if: (a) the ERA'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 ofthe 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 as binding on Developer, and such party shall not be entitled to any additional rights or privileges granted a Holder hereunder. Section 7.2. Notice of Default; COPy to Mortgagee. Whenever the HRA shall deliver any notice or demand to Developer with respect to any breach or default by Developer in its obligations or covenants under this Agreement, the HRA shall at the same time forward a copy of such notice or demand to each known Holder of any First Mortgage at the last address of such Holder shown in the records of the HRA. Section 7.3. Mortgagee's Option to Cure Defaults. After any 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 anyrights ofthe 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. Ifa default is not susceptible of cure within such 90-day period, the Holder shall have such period of time as is necessary to cure such default provided the Holder promptly 16 . . . Resolution 03-12 EXHIBIT C December g, 2003 commences the cure and thereafter proceeds to cure such default as soon as reasonably possible and provided such failure to cure within 90 days does not jeopardize the purposes of the Agreement or the Plan. However, ifthebreach or default is with respect to construction ofthe 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 BRA, by written agreement reasonably satisfactory to the HRA, to complete, in the manner provided in this Agreement and in conformance with the Development Plans, the Improvements. If the Holder enters into an agreement assuming the obligations of Developer under the Agreement, such agreement shall provide that all obligations of the Holder thereunder shall terminate at such time as the Holder in accordance with the provisions of Section 8.1 of the Agreement or in accordance with the following paragraph assigns the Agreement. Any Holder who shall properly complete the Improvements 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 the Agreement, if the Holder ofa First Mortgage acquires the interest of Developer under the terms of the Agreement, the Holder shall be permitted to assign its interest in the Agreement with the consent of HRA, which consent shall not be unreasonably withheld or delayed. In exercising its judgment as to whether or not to grant such consent,' the HRA shall take into account only the financial condition and experience of the proposed assignee and its capacity to perform the obligations remaining to be performed under the Agreement at the time of such assignment. In addition, the Holder may assign its interest at any time without the consent ofthe HRA to a person witha verifiable net worth in excess of $1 0,000,000. Any such assignee shall agree in writing with the HRA, for itself and its successors and assigns, to be bound by the terms and conditions of the Agreement, the Deed, and the Plan, and not to transfer, mortgage or otherwise convey any portion of the Development Property except as permitted in the Agreement. Section 7.4. 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 (10) days after it has declared or given notice to Developer of a default, shall notify the HRA in writing of: (a) the fact of the default; (b) the elements of the default; and (c) the actions required to cure the default. The HRA shall have the right to cure any such default which occurs prior to issuance of the Certificate of Completion. The HRA shall have a period of 35 days after notice from a 17 . . . Resolution 03-12 EXHIBIT C December 9,2003 Holder to effect a cure, provided that the HRA gives Developer advance written notice of its intent to cure. In the event of such cure prior to the issuance of the Certificate of Completion, the HRA shall thereupon be entitled, in .addition to and without limitation upon any other rights or remedies to which it may be entitled, to reimburseJl1ent 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 Minneapolis, 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 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, provided, however, that Developer may transfer the Development Property to a separate development entity if Developer remains jointly and severally liable with the transferee under this Agreement. 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 ofthe Improvements by Developer. 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. 18 . . . Resolution 03-12 EXHIBIT C December 9,2003 (b) After the Closing Date, and until the Certificate of Completion has been issued, Jailure by Developerto 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 of the 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 perfotm 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. (t) 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. (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 Section. 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 to Developer which sets forth the nature of the 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 of this Agreement and of the Plan): 19 . . . Resolution 03-12 EXHIBIT C December 9,2003 (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 perfonnance under this Agreement. (b) If the Event of Default occurs prior to the Closing Date, the HRA may cancel and rescind this Agreement. (c) TheHRA 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 Property, 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 shaH 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 maybe 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 any other Party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. ARTICLE X Additional Provisions Section 10.1 Equal Employment Opportunity. 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 of the HRA Parcel, and its undertakings pursuant to this Agreement, are and will be used for the sole and express purpose of redevelopment ofthe Development Property and not for speculation in land holdings. 20 . . . Resolution 03-12 EXHIBIT C December 9,2003 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: Sunrise Senior Living, Inc. 7902 Westpark Drive McLean, VA 22102 Attention: William D. Shields, Executive Vice President with copies to: Sunrise Development, Inc. 3334 Sandy Creek Drive Shelby Township, MI 48316 Attention: Laura Hester, Development Officer And Winthrop & Weinstine, P.A. 225 South Sixth Street, Suite 3500 Minneapolis, Minnesota 55402 Fax No. (612) 604-6800 Attn: Daniel S. Schleck (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 55427 Attention: Director with copies to: Allen D. Barnard Best & Flanagan LLP 225 South Sixth Street, Suite 4000 Minneapolis, Minnesota 55402-4690 21 Resolution 03-12 EXHIBIT C December 9,2003 . 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 105 Counterparts. This Agreementmay 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 ofthis 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 HRAts delivery of any Deed to Developer. Section 10.10 Binding Effect. Subjectto the provisions of Article Vill, this Agreement is binding upon, and shall inure to the benefit of, the successors and permitted assigns of the Parties. Section 10.11 Consents. Any consent or approval required of a Party under this Agreement shall not be unreasonably withheld or delayed. Section 10.12 Certificates. Upon reasonable request from time to time, the HRA shall execute and deliver written certificates to parties designated by Developer concerning whether this Agreement is in effect, whether any defaults exist under this Agreement and other similar matters. Section 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 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. . 22 . . . Resolution 03-12 EXHIBIT C December 9,2003 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 ofthe Improvements; (d) Subj ect 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 financial, 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 in Sections 4.4,4.5,4.6 and 8:2, if this Agreementis 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. 23 . . . Resolution 03-12 EXHIBIT C December 9,2003 Section 11.3 Developer's Ref!ledies on Default bv 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 earnest money eligible to be returned under Section 4.5; . (b) initiate such action, including legal or administrative action, as it deems necessary for Developer to secure performance of any provision of this Agreement or recover any amounts for any damages suffered by Developer as a result of said Default. Section 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 maybe deemed expedient. 24 . . Resolution 03-12 EXHIBIT C December 9,2003 IN WITNESS WHEREOF, theHRA 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 nan1e and behalf, on or as of the date first above written. STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By Its And Its SUNRISE SENIOR LIVING, INC. BY~ Its CxecM Lie. VI ce Pt'e~ (detAJ.. And Its The foregoing instrument was acknowledged before me this _day of 2003, by Ja:n 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 25 . Resolution 03-12 EXHIBIT C December 9, 2003 STATE OF VIRGINIA ) ) ss. COUNTYOF+h\rkll- ) The foregoing instrument was acknowledged before me this ,q!f4day of J!VV~ , 2003, by ehYKl1M1SAS1tiYIY7 , ?x<<1d1Ve)/I~PtQldefi.1-; and , of SUNRlSE SENIOR LNlNG, .lNC., a Delaware corporation, on behalf of the organization. ~ )111 f!17MfYI(~C;;:115tl apJ t\e4 J~ 51 j 2Dl:::>5 . DRAFTED BY: . B~st & :Flanagan LLP (ADB) 225 South Sixth Street, Suite 4000 Minneapolis, Minnesota 55402-4690 26 . . . Resolution 03-12 EXHIBIT C December 9,2003 EXHIBIT Al LEGAL DESCRIPTION FOR ADJACENT PARCEL That part ofthe Southeast Quarter ofthe Northwest Quarter of Section 19, Township 29, Range 24, Hennepin County, Minnesota, described as beginning at the northeast corner of Lot 1, Block 2, SCHAPER ADDITION, according to the recorded plat thereof, Hennepin County, Minnesota; thence South 89 degrees 23 minutes 50 seconds East, assumed bearing, along the south line of Schaper Road as dedicated in said SCHAPER ADDITION, a distance of 42.51 feet; thence South o degrees 35 minutes 58 seconds West a distance of 170.01 feet; thence South 89 degrees 23 minutes 50 seconds East a distance of37.98 feet; thence South 0 degrees 36 minutes 10 seconds West a distance of 91.99 feet to a northerly line of said Lot 1; thence North. 89 degrees 23 minutes 50 seconds West, along said northerly line of Lot 1, a distance of 80.48 feet to a corner of said Lot 1; thence North 0 degrees 35 minutes 58 seconds East, along an easterly line of said Lot 1, a distance of262.00 feet to the point of beginning. Al-l . . . Resolution 03-12 EXHIBIT C December 9,2003 EXHIBIT A2 LEGAL DESCRIPTION FOR INFINITY DEVELOPMENT PARCEL 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. A2-1 . . . Resolution 03-12 EXHIBIT C December 9,2003 EXHIBIT B CERTIFICATE OF COMPLETION THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY, a public body corporate (the "HRA"), and SUNRISE SENIOR, INC., a Virginia corporation ("Developer"), previously entered into theSunrise Development, Inc. 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 of the date hereof and that the rights and remedies ofthe 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 VALLEY By: Its: And: Its: B-1 . . . Resolution 03-12 ST ATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) EXHIBIT C December 9, 2003 The foregoing instrument was acknowledged before me this day of 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 B-2 Resolution 03-12 Ex~Mlc?ll L PRELIMINARY PLANS December 9,2003 . . . C-2 o:J~ ~c:n~ -,CZ; I .~ I fJ) I :n 00< ~ ~ al ......e ......e ~ = al "'CS ......e o o ~ o al r/.) .~ f-.4 9 00 O~ If .~ >-~ 0::; W~ Wi [}~ .. 'tS. ccs o ~ ... Q) At ccs ~ - . Resolution 03-12 lEO.1 ilDJ 'roo , . 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Resolution 03-12 EXHIBIT C December 9,2003 EXHIBIT D DECLARATION DECLARATION OF RESTRICTIONS AND CQY"~c~ANTS AND AFFIDAVIT CONCERNING REAL PROPERTY CONT AMINATED W.ITH 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 unde~ 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, Minriesota, as described herein (the "Property"); and WHEREAS, a portion of the Property was the site of releasee 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, andCity of Golden Valley ("City"), acting together, requested tec1n}ical assistance and liability protection . from the Minnesota Pollution Control Agency ("MPCA") Voluntary Investigation and Cleanup (VIC) Program on March 16, 1994; and D-1 Resolution 03-12 EXHIBIT C December 9, 2003 . ,,~.^ 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 ofthe 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 HRA/City conducted inspections during 1999 and 2000 to assess the integrity of the soil cover and the condition ofthe 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 of lead or P AHs in any of the samples; and WHEREAS, the HRA/City has successfully implemented the RAP, based on the follow- up inspections and monitoring. In addition, the MPCA staffhas 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 . D-2 . . Resolution 03-12 EXHIBIT C December 9,2003 WHEREAS, the HRAhas 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, 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 BRA in Hennepin County, Minnesota, shown on Exhibit 1 attached hereto and legally described as follows: 2. Lot 1, Block 2, Schaper Addition, Hennepin County, Minnesota 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 of the 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 of the plan. The MPCA's approval may include conditions which the MPCA deems D-3 . . Resolution 03-12 EXHIBIT C December 9,2003 reasonable and necessary to protect public health or welfare or the environment, and shall not be unreasonably withheld. 3. . Maintenance Requirements. 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, transfetted, sold, conveyed, occupied, altered, or used in violation of the Restrictions set forth in Section 2 or the Maintenance Requirements of Section 3 of this Declaration. 5. 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 or the Maintenance Requirements. 6. Duration; Amendment. In accordance with Minn. Stat. ~ 115B.17, subd.15 and Minn. Stat. ~ 84C.02(c), this Declaration andthe covenants, grants and Restrictions herein are unlimited in duration unless tenninated, released andlor 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, andlor 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 D-4 . . . Resolution 03-12 EXHIBIT C December 9,2003 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 human health or welfare or the environment. This Declaration and the covenants, grants and Restrictions herein may be amended ifthe MPCAfinds that the conditions set forth in Section 2 of this Dec1aration are inadequate to protect public health or welfare or the environment as set forth in the MPCA's May 7, 1997 RAP approval letter. Ifthe 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 of the 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 of this 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 inor 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 D-5 . . Resolution 03-12 EXHIBIT C December 9,2003 utility lines or other infrastructure on the Property, or to respond to other types of emergencies (e.g., 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 and the environment has been restored. 9. Disclosures. The Restrictions set forth in Section 2 of this 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). In Witness Whereof, this instrument has been executed on this day of D-6 . . . Resolution 03-12 EXHIBIT C Decemb~r 9,2003 HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN V ALLEY By Jan LeSuer Chair STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) J an 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 03-12 EXHIBIT C December 9, 2003 Accepted on behalf of Minnesota Pollution Control Agency Pursuant to Minn. Stat. ~ 115B.17, subd. 15 By James L. Warner, P.B. 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. Warner, under the authority ofthe Commissioner of Minnesota Pollution Control Agency, a Minnesota body politic, on behalf of the 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 03-12 EXHIBIT C December 9, 2003 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., October26, 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 ofthe 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, Fonner White HOl,lse Restaurant Property and Schaper Natural Area, Barr Engineering, June, 1998. . . . Resolution 03-12 EXHIBIT C December 9,2003 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 SUNRISE ASSISTED LIVING, INC., a Virginia corporation ("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 Sunrise Development, Inc. 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 of the Certificate of Completion, Grantee shall not sell, transfer, mortgage or otherwise convey the Property, or anypart 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 temlimition of the agreements and covenants in arid pursuant to the Agreement. .. . . Resolution 03-12 EXHIBIT C December 9,2003 2. Ifan "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 ofthe Agreement. 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 maximum 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 ,20_. THE HOUSING Ai'ID 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 . . . Resolution 03-12 EXHIBIT C December 9,2003 THIS INSTRUMENT WAS DRAFTED BY: Best & Flanagan LLP 225 South Sixth Street, Suite 4000 Minneapolis, Minnesota 55402-4690 OJ 1800/960702/172705_16 G:\HRAMISC\Sunrise Devel Agree Copy. DOC