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2006 HRA Resolutions 06-02 . . . Resolution'06-02 January 17 , 2006 Commissioner Loomis introduced the following and moved its adoption: RESOLUTION APPROVING CONDITIONAL SALE OF CERTAIN REAL PROPERTY FOR AN OFFICE CONDOMINIUM PROJECT (GVEC Properties, L.L.C.) WHEREAS, the Housing and Redevelopment Authority in and for the City of Golden Valley (hereinafter "HRA") and the City Council forthe City of Golden Valley (hereinafter "City") have approved the North Wirth Parkway Redevelopment Plan as adopted. in 1978 and amended from time to time; and WHEREAS, the North Wirth Parkway Redevelopment Plan contemplates the redevelopment of the East Area in a mix of large scale office, office/warehouse and light industrial uses; and, WHEREAS, GVEC Properties, L.L.C. ("Developer") would like to develop an office condominium project of up to 31,500 sq. ft.; and WHEREAS, the HRA has reviewed the terms of the proposal ma(je by the Developer and they appear to be reasonable and within the overall guidelines for redevelopment of the North Wirth Parkway Redevelopment Area; and WHEREAS, the HRA has determined the use value of the real property contemplated by the Developer's proposal; and, WHEREAS,. pursuant to Minnesota Statutes ~469.029, the HRA has duly given notice in the form attached as Exhibit A of a public hearing on the proposed sale of the property legally described as Lot 1, Block 1, North Wirth Parkway 5th Addition and ha$ duly held said public hearing. NOW, THEREFORE, BE IT RESOLVED, that the HRAdoes hereby make the following findings and determinations: 1. Proper published notice of the proposed sale of the Subject Property described above has been given and a public hearing has been held thereon, all in accordance with the provisions of Minnesota Statutes ~469.029;'and 2. The use of the Subject Property proposed by the Developer is reasonably within the overall guidelines of the North Wirth Parkway Redevelopment Plan; and 3. The use value of the Subject Property is hereby established as $3.90 per square foot; and . . . Resolution 06-02- Continued January 17, 2006 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 theSubject 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 with the terms and conditions set forth in the development agreement attached hereto as Exhibit "B" is hereby approved; and 2. The Chair and the Director of the HRAarehereby authorized to execute the necessary documents and close the sale of the Subject Property to the Developer pursuant to the terms and restrictions provided hereby; and 3. The Director of the HRA is hereby authorized and empowered to take all necessary steps to perform the obligations imposed on the HRA under the Private Development Agreement; and 4. The North Wirth Parkway Redevelopment Plan is hereby amended to the extent that the Developer's proposal embodied in the Private Development Agreement attached hereto as Exhibit "B"so modifies it. _r~ p~ Paula Pentel, Chair ATTEST: Motion for the adoption of the foregoing resolution was seconded by Commissioner Shaffer and upon a vote taken thereon, the following voted in favor thereof: Freiberg, Loomis, Pentel, Scanlon and Shaffer the following was absent: none; and the following voted against the same: none; whereupon said resolution was declared duly passed and adopted, signed by the Chair and his/her signature attested by the Director. . . . EXHIBIT A NOTICE OF PUBLIC HEARING APPROVAL OF SALE OF REAL PROPERTY ON DAHLBERG DRIVE NORTH OF HIGHWAY 55 TO GVEC PROPERTIES, LLC 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, January 17, 2006, at 6:00 p.m. and will then and there consider the proposed sale and terms thereof for the development of the property located immediately to the west of 4200 Dahlberg Dr. for redevelopment pursuant to Minnesota Statutes Section 469.029. The legal description of the property is as follows: Lot 1, Block 1, North Wirth Parkway 5th Addition The proposal is to. construct 27,000 to 31 ,500 sq. ft of office/warehouse facilities to be sold as condominiums. All interested parties may appear in person or by counsel and be heard. BY THE HOUSING AND REDEVELOPMENT AUTHORITY /slThomas D. Burt, HRA Director -Resulotion06-02 (Con't.) "-EJ<tlIBIT B --january 17 , 2006 . GVEC PROPERTIES. LLC PRIVATE DEVELOPMENT AGREEMENT . . THIS AGREEMENT, effective as of January 10, 2006, is made and entered into by and between the HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN V ALLEY,a public body corporate established and existing under Minnesota Statutes, Section 469.001 et seq., with its principal offices at 7800 Golden Valley Road, Golden Valley, Minnesota 55427 (the "HRA"), and GVEC PROPERTIES, LLC, a Minnesota limited liability company, with its principal office located at 101 East Fifth Street, Suite 1901, St. Paul, Minnesota 55101 ("Developer"). >'..< WHEREAS, the HRA and the City of Golden Valley (the "City") adopted the North Wirth Parkway Redevelopment Plan (the "Plan") on September 18, 1978, and have since made certain amendments thereto, for the purpose of redeveloping approximately 110 acres located in the City of Golden Valley (the "Redevelopment Area"); and WHEREAS, the Plan is intended to encourage private development of the Redevelopment Area through various forms of government aid and financial assistance; and WHEREAS, Developer has submitted to the HRA a proposal for the purchase from the HRA of a site in the RedevelopmentArea legally described in attached Exhibit A (the "Development Property"), and the construction on the Development Property of an office condominium project with a minimum of approximately 27,000 square feet, and a maximum of approximately 31,500 square feet, together with parking that meets City zoning requirements, and certain other improvements (the "Project"); and WHEREAS, the HRA, after public hearing, has approved the Project as being consistent with the provisions of the Plan; and WHEREAS, the Development Property is included in a tax increment district created pursuant to applicable Minnesota Statutes; and WHEREAS, Minnesota Statutes, Section 469.029, requires the adoption of a development agreement between the parties setting forth the mutual rights and obligations of the parties in accordance with the provisions ofthe Plan; and NOW, THEREFORE, in consideration ofthe foregoing, and in consideration ofthe mutual tenns and conditions contained herein, the parties hereby agree as follows: 1 . . . Resolution" 06;;02 (Con't.) --EXHIBIT B january "17, 2006 TABLE OF CONTENTS Page Article 1- Definitions.................... ........ ..................................................................................... 4 1.1 Definitions.............................................................................................4 Article II - Representations and Warranties ............................................................................... 6 2.1 Representations and Warranties by the HRA ....................................................6 2.2 Representations and Warranties by Developer .................................................. 7 Article III - Title and Other Matters .................................................;......................................... 8 3.1 Marketable Title .................... ................................................... ...............8 3.2 Environmental Matters............................................................................... 9 3.3 P. U.D. Approval ................................................................................... 10 3.4 Real Estate Taxes and Special Assessments.. . .... .. .. .. .. . .. .. .. . .. .. .. .. .. . .. .. .. .. .. .. .. .... 10 3.5 Closing.............. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10 3.6 Recording ..........................................................;................................. 11 3.7 Use.................................................................................................... 11 3.8 Condemnation..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11 3.9 Guaranty........... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11 Article N - Construction of Improvements .................................. .......... ................................. 12 4.1 Delivery of Development Plans and Construction of Improvements..................... 12 4.2 Commencement and Completion of Construction. .. .. .. .. .. . .. .. .. .. .. .. .. . .. .. . .. .. .. . .. .. 12 4.3 Certificates of Completion... ...................................................... ..... ......... 13 4.4 Deposit and Reimbursement of HRA Expenses.............................................. J 13 4 . D . ! ' .5 SecurIty eposIt.............. ...... .... .............................................. ............... i 13 4.6 Letter of Credit. .. . . . . . . . . . . . . . . .. . . . ... . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... ... . . . . . . . . .; 14 4.7 Payment of Taxes, Assessments, Etc...................................... '.. .. .. .. .. .... .. .. .. .. 14 4.8 Payments in Lieu of Taxes........................................................................ 14 Article V - Insurance.............................................................................................. .................. 15 5. 1 Insurance..... . . . . .. .. . . . . . . . . . . . . .. . . .. . . .. . . . . . . . .. . .. .. . . . . . . . ; . . . . . . . . . . .. . . . . . . . . . . .. . .. . . . .. . . .. 15 Article VI - Undertakings ofthe HRA ..................................................................................... 17 6.1 Sale of Development Property................. .......... ......... ............ ...... .............. 17 6.2 Limitations on Financial Undertakings of the HRA .....;.................................... 17 6.3 HRA to Maintain Existence............... . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . .. . . . .. . . . . . .. .... . ... . . " 18 6.4 HRA's Option to Terminate ..................................................................... 18 Article VII - Mortgage Financing ........:........... ............ .......... ............. .......... .......... .................. 18 7.1 Approval of Mortgage ...... ................... ........... ..... ....... ......... ...;. ............... 18 7.2 Notice of Default; Copy to Mortgagee.......................................................... 19 7.3 Mortgagee's Option to Cure Defaults .......................................................... 19 7.4 HRA ' s Option to Cure Default on Mortgage . .. .. .. .. .. . .. .. .. .. .. .. .. . .. . .. . .. . .. .. .. . .. .... 20 7.5 Subordinate Liens................................................................................... 20 Article VIII - Restrictions on Transfer; Indemnification .......................................................... 21 8.1 Restrictions on . Transfer ............... ............................................. ...............21 8.2 Indemnification...................................................................................... 21 Article IX - Events of Default........................................ ........................................... ............... 22 2 . . . u-Reso1ution-06-02 (Con't.) -EXHIBIT B January 17 . 2006 9.1 Events of Default Defined... .......... ... ....... ......... .... ....... .... ....... ..... ..............22 9.2 Remedies on Default ...............................................................................22 9.3 No Remedy Exclusive..... ... ..... ......... ... ....... ................. ...... .... ...... ......... ....23 904 No Additional Waiver Implied by One Waiver................................................ 24 Article X - Additional Provisions...... ....... ......... ......... ...... ................. ....... ................... ............. 24 10.1 Equal Employment Opportunity................................................................ 24 10.2 Not for Speculation............................................................................... 24 10.3 Titles of Artic1esand Sections.................................................................. 24 lOA Notices and Demands....... ..... ...... ... ... ......... ... .......... ............ ........... ... .....24 10.5 Counterparts........................................................................................ 25 10.6 Modification........................................................................................ 25 1 0 ~ 7 Interpretation and Amendment.................................................................. 25 10.8 Severability.............. ........................................................................... 25 10.9 Duration............................. . . . . . . . . . .. . . . . . . .. . . . . . .. . . . .. . . . . . . . . . . . . . .. . .. .. .. . . .. . . . . ... 25 10.10 Binding Effect.................................................................................... 25 10.11 Consents. . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . .. . . . . . . . . . . . .. 25 10.12 Certificates................................... ....................................... ..............25 10.13 ,Time of the Essence .................... .......... ........... .............. .................. ....25 Article XI - Termination of Agreement... .............. ........................... ....... ............................ ..... 26 11.1 Developer' s Options to Terminate .. .. . .... .. .. .. .. .. .. .. .. .. .. .. .. . .. .. .. . .. ...... .. .. .. .. ... 26 11.2 Effect of Termination................................... ........................ ....... ...........26 Exhibit A - Legal Description ........... ... ... ............ ........ .............. ................ ........1 Exhibit B - Certificate of Completion.................................. ................ ................1 Exhibit C - Preliminary Plans......................... ...... .. .. .. . .. .. .. .. .. .. .. .. .. ;..... .. . .. .. .. ... .. 1 Exhibit D - Tax Increment Note......................................................................... 1 Exhibit E - Limited Warranty Deed ...... ................ ......... ......................................1 Exhibit F - Restrictive Covenant Agreement ........... ......... ..... ...... ..... ......................1 Exhibit G - Guaranty....................................................................................... 1 3 . . . ----Resolution il6-02 (Con't.) EXHIBIT B january 17 , 2006 ARTICLE I Definitions Section 1.1. from the context: Definitions. In this Agreement, unless a different meaning clearly appears "Agreement" means this GVEC Properties, LLC Private Development Agreement by and between the Housing and Redevelopment Authority in and for the City of Gold en Valley, Minnesota, and GVEC Properties, LLC, a Minnesota limited liability company, as the same may be from time to time modified, amended or supplemented. "Certificate of Completion" means a certification, in the form ofthe certificate contained in Exhibit B attached to and made a part ofthis Agreement, provided to Developer pursuant to Section 4.3 of this Agreement upon satisfactory completion of the shell ofthe Improvements without interior finishing. The HRA shall provide Developer with separate Certificates of Completion for Phase I, and for each separate building in Phase II and Phase m. "City" means the City of Golden Valley, Minnesota. "Closing" or "Closing Date" means the date upon which HRA conveys the Development Property to Developer, which shall be on or after the date the Parties have obtained all necessary consents and approvals required for construction of the Improvements, and which the Parties expect to be on or beforeFebruary 22,2006. "County" means the County of Hennepin, Minnesota. "Developer" means GVEC Properties, LLC, a Minnesota limited liability company, and its successors and assigns under this Agreement. "Development Plans" means the plans, specifications, drawings, and related documents on all construction work to be performed by Developer on the Development Property, including all on-site improvements to be performed, installed or constructed pursuant to this Agreement. Such plans include, for each building or other structure to be constructed on the Development Property, at least the following: (i) site plan; (ii) sample elevations and exterior materials; and (iii) landscape plan. "Development Property" means the real property described as in Exhibit A. "Event of DefauIt" means an action by Developer listed in Section 9.1 of this Agreement. "First Mortgage" means any first priority mortgage which is secured, in whole or in part, by Developer's interest in the Development Property, or any portion or parcel thereof, or any Improvements constructed thereon, and which is a permitted encumbrance pursuant to the provisions of Article VII of this Agreement. 4 . . . ---Resolution 06~02(Con't.) --EXHtBIT B january 17, 2006 "Holder" means the owner of the First Mortg~ge. "HRA" means the Housing and Redevelopment Authority in and for the City of Golden Valley. "Improved Parcel"means the Development Property and the completed Improvements on the Development Property. "Improvements" means an office condominium project with a minimum of approximately 27,000 square feet, and a maximum of approximately 31,500 square feet. The Improvements shall be constructed in four phases. Phase I shall be constructed with aminimum of approximately 10,500 square feet, Phase IT shall be constructed with a minimum of approximately 6,000 square feet, Phase III shall be constructed with a minimum of approximately 10,500 square feet, and Phase IV, which shall be optional for Developer, shall be constructed with approximately 4,500 square feet. The Improvements shall include parking that meets City zoning requirements, and a storm sewer pipe on the southern part of the Development Property to provide for drainage from adjoining property, plus all other improvements, including fixtures and equipment, to be constructed by Developer upon the Development Property pursuant to this Agreement, as such improvements are defined in the Development Plans. "Net Proceeds" means any proceeds paid by an insurer to Developer, the Holderofthe First Mortgage, or the HRA under a policy or policies ofinsurance to be provided and maintained by Developer pursuant to Article V of this Agreement and remaining after deducting all expenses (including reasonable fees and disbursements of counsel) incurred in the collection of such proceeds. "Parties" means the HRA and Developer. "~' means either the HRA or Developer. "Phase" or "Phases" means Phase I, Phase II, Phase ill and/or Phase IV, as defined in the definition of Improvements. "Plan" means the North Wirth Parkway Redevelopment Plan, adopted by the City and the HRA in September of 1978, and as amended through the date hereof. "Preliminary Plans" means the plans for the Improvements attached as Exhibit C, which are hereby approved. No changes, except those deemed minor by the HRA Director, shall be made to the Preliminary Plans without prior written approval by the HRA. "Project" means the construction and operation of the Improvements by Developer on the Development Property pursuant to the terms of this Agreement. "Purchase Price" means the sum of $3.90 per square foot for each square foot of the Development Property southeasterly of the railroad tracks currently dividing the Development Property, as shown on the Preliminary Plans. 5 . . . uResolotion-06-02 (Con't.) EXHIBIT B ujanuary 17, 2006 "Redevelopment Area" means the approximately 110 acres located in Golden . Valley, Minnesota that are subject to the Plan. "State" means the State of Minnesota. "Tax Increment District" means the Tax Increment Financing North Wirth District No.3. "Tax Increment Financing Act" means Minnesota Statutes, Sections 469.174 through 469.179, inclusive, as amended. "Tax Official" means any City or County Assessor; County Auditor; County or State Board of Equalization; the Commissioner of Revenue of the State; or any State or Federal District Court, the Tax Court of the State or the State Supreme Court. "Unavoidable Delavs" means actual delays due to events directly affecting the Project which are beyond the reasonable control ofthe Party which is to perform, including but not limited to labor disputes, unusually severe orprolonged bad weather, acts of God, fire or other casualty, injunctions, or other court or administrative orders. ARTICLE II Representations and Warranties Section 2.1. warrants that: Representations and Warranties by the HRA. The HRA represents and (a) The HRA has the power to enter into this Agreement and carry out its obligations hereunder. (b) The Redevelopment Area constitutes a Redevelopment Project pursuant to Minnesota Statutes, Section 469.002, and the Tax Increment District constitutes a soils condition district pursuant to Minnesota Statutes, Section 469.174. (c) The HRA has examined this Agreement, and has determined that its terms and provisions are in accordance with the objectives embodied in the Plan, and are in the best interests of the City and its residents. (d) The Project, as defined and described in this Agreement, is in conformance with the Plan. ( e) The HRA is the fee owner of the Development Property. 6 . . . .. -~Resolution06-02 (Con't.) EXHIBIT B January 17 ;2006 (f) Neither the execution and delivery ofthis Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement is prevented or limited by, orin conflict with or will result in a breach of, the terms, conditions or provisions of any indenture, mortgage, agreement or instrument of whatever nature to which the HRA is now a party or by which it is bound, or will constitute a default under any of the foregoing. (g) There are no legal proceedings pending, or known to be threatened or contemplated, to which the HRA is a party, or to which any property ofthe HRA is subject, which, if determined adversely, would individually or in the aggregate have a material adverse effect on the HRA's financial position, or prevent or impair the HRA's ability to perform any covenants or obligations under this Agreement. The above representations and warranties are true and complete as of the date hereof, shall be true and complete as of the Closing Date, and shall survive the Closing Date. Section 2.2. Representations and Warranties by Developer. Developer represents and warrants that: (a) Developer is a limited liability company duly organized and in good standing under the laws of the State. (b) Developer is not in violation of any provisions in its organizational documents, has power to enter into this Agreement and to perform its obligations hereunder and has duly authorized the execution, delivery and performance ofthis Agreement by proper action, such that this Agreement is and shall remain binding and enforceable against Developer according to its terms, subject to laws affecting the rights of creditors generally or principles of equity. (c) Developer shall construct, operate and maintain the Improvements upon the Development Property in accordance with the terms ofthis Agreement, the Plan and all local, state and federal laws and regulations. (d) Neither the execution and delivery ofthis Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement is prevented or limited by, or in conflict with or results in a breach of, the terms, conditions or provisions of Developer's organizational documents, or any indenture, mortgage, agreement or instrument ofwhatever nature to which Developer is now a party or by which it is bound, or constitutes a default under any of the foregoing. (e) There . are no legal proceedings pending, or known to be threatened or contemplated, to which Developer is a party, or to which any property of Developer is subject, which, if determined adversely, would individually or in the aggregate have a material adverse effect on Developer's financial position, or prevent or impair Developer's ability to perform any covenants or obligations under this Agreement. 7 . . . -Res-otutron-o6..;02 (Con't.) u -E-xH1 B IT 8 . January 17,2006 (f) Developer has previously delivered to the HRA copies of its most recent financial statements; since the date of such statements, there have been no changes in Developer's financial conditiol1 which would have a material adverse effect on Developer, or which would prevent or impair Developer's ability to perform any covenants or obligations under this Agreement. (g) Developer will act in good faith and use all reasonable effort to obtain all consents and approvals required for construction of the Improvements, and Developer will comply with all reasonable requirements imposed as conditions for such consents and approvals even if such requirements involve changes to the Development Plans (so long as such changes are not substantial). The above representations and warranties are true and complete as of the date hereof, shall be true and complete as of the Closing Date, and shall survive the Closing Date. ARTICLE III Title and Other Matters Section 3.1. Marketable Title. The HRA agrees to furnish to Developer, within 14 days following the execution of the Agreement, a commitment for the issuance of an owner's AIrTA policy of title insurance with respect to the Development Property, issued by a reputable title insurance company, showing marketable title in the HRA subject only to the following (the "Permitted Encumbrances"): (a) Building, zoning and similar laws and ordinances. (b) Mineral rights reserved to the State of Minnesota. (c) Easements of record which are agreed to by Developer as part of its title review process; (d) Other restrictions, if any, expressly agreed to by Developer, including those restrictions and reversionary rights contained in this Agreement. The commitment shall include searches for bankruptcies; state and federal judgments; tax and other liens; and for all special assessments, levied, pending (approved by the City Council), or deferred. The commitment shall include full mechanic's lien coverage, shall delete any exceptions for the rights of parties in possession and survey matters, and shall include copies of all documents referred to therein. The cost and expense ofthe title commitment and thetitle policy, based upon the Purchase Price only, shall be paid by the HRA. Any other title costs or policies shall be paid by Developer. Developer shall he allowed 15 days after receipt of such commitment to make objections thereto, such objections to be made in writing or deemed waived. The HRA shall be permitted 60 8 . . . -Resolution1J6;;02. (Can't.) -~E-XHIBIT 8 .~january 17,2006 days from and after the date of such objections to cure the same and the HRA hereby undertakes to cure such defects. Ifsuch title objections cannot be cured within 60 days, or such longer period as is agreed to by Developer, and Developer does not waive such objections, then Developer shall have the right to terminate this Agreement by giving written notice thereof to the HRA. The Closing Date shall be extended to the extent necessary during the 60-day period. Section 3.2. Environmental Matters. (a) Recognition of Geotechnical and Environmental Conditions. The parties recognize that construction of the Improvements on the Development Property must be accompanied by extensive soil correction and environmental remediation, which are the responsibility of Developer. (b) Information and Investigation. The HRA has previously made available to Developer copies of written geotechnical and environmental reports and analyses concerning the Development Property. Pursuant to an Access Agreement between the Parties, the HRA has also granted Developer access to the Development Property to perform a geotechnical and environmental analysis of the Development Property. Developer has performed all additional environmental and geotechnical analyses ofthe Development Property necessary to construct the Improvements. (c) Development Response Action Plan. Developer has prepared and obtained approval by the Minnesota Pollution Control Agency ("MPCA") of a development response action plan ("DRAP") for remediation of the Development Property. Developer shall take all actions required for remediation of the Development Property under the DRAP, as subsequently amended, following the Closing. (d) Performance of Soil Correction and Remediation. Following the Closing Date and through construction of all of the Improvements, Developer shall perform all soil correction and environmental remediation necessary for construction ofthe Improvements in accordance with this Agreement and the Plan. All such actions by Developer shall be in compliance with the DRAP and all applicable laws, rules and regulations. (e) Reimbursement of Expenses. The HRA shall reimburse Developer for reasonable out-of-pocket costs and expenses actually incurred by Developer after the Closing Date for soil correction and environmental remediation of the Development Property, reasonably required to permit construction of the Improvements. Expenses eligible for reimbursement are all wetlands mitigation and geotechnical and environmental remediation, including but not limited to the following: engineering consulting fees and expenses, MPCA review costs, soil removal and management, geo-piers, venting of all buildings, removal of buried tanks, parking lot fabric, dewatering, and a construction management fee of up to 5 % of soil correction and remediation contractor costs. All such expenses shall be documented by invoices or other billing statements and are limited to a maximum of $1,163,634. 9 . . . ---l~esolution(}6-02 . (Con 't.) -eXHIBIT B January-17,2006 Developer may choose to receive reimbursement of eligible expenses directly from the HRA up to the amount of the Purchase Price,. or Developer may add expenses for environmental remediation made pursuant to the DRAP to the Tax Increment Note attached as Exhibit D. Any amount which Developer receives as reimbursement from the Purchase Price, or which Developer adds to the Tax Increment Note, shall be applied against the overall dollar limit. To receive reimbursement directly from the HRA, Developer must submit a request supported by invoices or billing statements to the HRA, c/o Finance Department, City of Golden Valley, 7800 Golden Valley Road, Golden Valley, Minnesota 55427, and the HRA shall pay Developer within 30 days thereafter. (f) Disclaimer by the HRA. Except as contained herein, the HRA makes no other representation or warranty, express, implied, or by law, concerning the presence on, in or under the Development Property, at any time, of any hazardous substances, toxic waste, pollution or other contamination, and the HRA disclaims any and all liability and responsibility to Developer in connection therewith. Section 3.3. p.nD. Approval. Developer shall apply to the City for P.D.D. approval for the Project and shall use its best efforts to obtain all required approvals as soon as practicable. The P. U.D. shall be phased according to the construction schedules for the four Phases. All four Phfises shall be included in the preliminary plan approval. Separate general plan approvals may be provided for each ofthe Phases, but the proposed schedule for all ofthe Phases must be provided at the time of general plan approval for Phase I. Significant changes to any Phase at the time of general plan approval may require reconsideration of the preliminary plan approval. ! Section 3.4. Real Estate Taxes and Special Assessments. The HRA represents that no real estate taxes are due and payable on the Development Property in 2005 or 2006. The HRA shall pay in full all special assessments against the Development Property which are levied or pending (approved by the City Council) as of the Closing Date. Any special assessments or real estate taxes on the Development Property payable after the Closing Date shall be the sole responsibility of Developer. Section 3.5. Closing. On the Closing Date, the HRA shall deliver to Developer a limited warranty deed for the Development Property in the form attached as Exhibit E (the "Deed"). The Deed shall be subject to the Permitted Encumbrances. The Deed shall contain a forfeiture clause providing for revesting oftitle ofthe Development Property in the HRA, subject to the rights ofthe Holder of a First Mortgage, upon the occurrence of an Event of Default (as defined in Section 9.1 hereof) and expiration of any period of cure such Event of Default provided in Section 9.2 hereof, prior to issuance ofthe Certificate of Completion for Phase I. Delivery ofthe Deed shall not cause termination of any provisions ofthis Agreement, except where expressly provided in this Agreement. Also at the Closing, Developer shall pay the full Purchase Price to the HRA by cashier's or certified check. All costs ofthe conveyance of the Development Property to Developer, including any and all fees and charges relating to such conveyance, and filing or recording fees and any and all other taxes and charges payable in connection with such conveyance, if any, shall be wholly borne by Developer, 10 .. . . -----Re-sotution06.;;02 (Con 't.) EXHIBIT B January 17 ,2006 except for the State deed tax which shall be paid by the HRA on the Closing Date, and except that the HRA shall pay its ownattomeys' fees for the Closing. The HRA shall voluntarily take no actions to encumber title, or fail to take any action necessary to prevent encumbrance of title, between the date hereof and date of delivery of the Deed to Developer by the HRA pursuant to this Section. Also at the Closing, the parties shall execute the Restrictive Covenant Agreement attached as Exhibit F. Also at the Closing, the HRA shall deliver to Developer the Tax Increment Note attached as Exhibit D. Section 3.6. Recording. Developer shall cause the title insurance company to promptly file this Agreement, the Deed and the Restrictive Covenant Agreement in the office of the Hennepin County Recorder. Developer shall pay all costs of recording, except the State deed tax which shall be paid by the HRA on the Closing Date. At its option, Developer may record a Memorandum of Development Agreement, in lieu of the Development Agreement, ina form approved by the HRA. Section 3.7. Use. From the Closing Date through December 31, 2024, or the date when this Agreement has been terminated, if earlier, Developer shall devote the Development Property only to use as office condominiums and related storage as specified in this Agreement, or other uses consistent with the Plan, and there shall be no unlawful discrimination in the use ofthe 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 notbind 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 ofthis Agreement shall govern, and the approval by the HRA ofthis Agreement shall constitute an amendment of the Plan. Section 3.8. Condemnation. In the event that title to and possession of the building Improvements or any material part thereof shall be taken in condemnation or by the exercise of the power of eminent domain by any governmental body or other person (except the HRA) after the Closing Date but prior to December.31, 2024, 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 ofthe Holder of a Mortgage, Developer shall use the entire condemnation award first to pay the reasonable costs and expenses of such taking, including but not limited to reasonable attorneys' fees and appraisers' fees, and second to reconstruct the building Improvements to the extent practicable (or, in the event only a part of the building Improvements have been taken, then to reconstruct such part) upon the Development Property. Section 3.9. Guaranty. At the Closing, the Guaranty attached as Exhibit G shall be executed and delivered to the HRA by each of Dale Joel, Tom Schock, Robert Fransen, John Chirhart, Jay Tuff, Len Sutherland and Greg Prest. 11 . . . ~~esolutrorr-o-6-02 (Can't.) E:XHtBIT B . january 17,2006 ARTICLE IV Construction of Improvements Section 4.1. Delivery of Development Plans and Construction of Improvements. Within 30 days after the date the City has granted preliminary P.D.D. approval for the Project, Developer shall deliver the Development Plans for the Improvements to the HRA for approval. Ifthe HRA fails to approve the Development Plans in its reasonable discretion, Developer shall cooperate with the HRA in making such changes as are required for the HRA's reasonable approval. If the Development Plans are not approved by the HRA within 60 days after its receipt, either party may terminate this Agreement. Developer agrees that it shall construct the Improvements on the Development Property in substantial conformance with the approved Development Plans for the Improvements and in conformance with all applicable City requirements. Developer agrees that the scope and scale ofthe Improvements to be constructed and all related work shall not be significantly less than the scope and scale of the Improvements as detailed and outlined in the Development Plans. Section 4.2. Commencement and Completion of Construction. Developer shall commence construction ofthe Phase I Improvements by June 30,2006, and shall diligently prosecute construction to completion. Developer shall complete construction of 100 percent of the shell o~the Improvements without interior finishing on or before June 30, 2007 for the Phase I Improvements, on or before December 31, 2008 for the Phase II Improvements, and on or before December 31, 2011 for the Phase III Improvements. The times provided herein for commencement and completion df construction shall also be extended to the extent of any Unavoidable Delays.' Upon completion of the storm sewer pipe on the southern part ofthe Development Property, in accordance with applicable requirements and this Agreement, as determined by the City Engineer, the HRA shall reimburse Developer for its reasonable out-of-ppcket costs and expenses to construct the pipe, subject to a maximum of$40,000. All such expenses shall be documented by invoices or other billing statements. Subsequent to execution ofthis Agreement, and until final certification ofthe Improvements pursuant to Section 4.3, Developer shall make reports to the HRA, in such detail and at such times as may reasonably be requested by the HRA, but not more often than monthly, as to the actual progress of Developer with respect to construction of the Improvements. Developer also agrees that designated representatives of the HRA may enter upon the Development Property during the construction of the Improvements to inspect such construction. The Holder of a First Mortgage shall not have any obligation to construct or complete construction of the Improvements while in possession of the Development Property pursuant. to foreclosure, or conveyance by Developer to the Holder of the First Mortgage in lieu of foreclosure, except as provided in Section 7.3. 12 . . . -Resolationi)6..02 (Con't.) dEXHIBIT B Hjanuary 17,2006 Section 4.3. Certificates of Completion. (a) Promptly after completion in accordance with this Agreement of the Improvements for Phase I, and thereafter for each separate building in Phase II and Phase ill, the HRA will furnish Developer with separate Certificates of Completion, in substantially the form set forth in Exhibit B attached hereto. Each Certificate of Completion shall be (and it shall be so provided in the Certificate of Completion itself) a conclusive determination of satisfaction and termination ofthe agreements and covenants in this Agreement with respect to the obligations of Developer to construct the applicable portion of the Improvements. (b) If the HRA shall refuse or fail to provide a Certificate of Completion in accordance with the provisions ofthis Section, the HRA shall, within ten (10) days after written request by Developer, provide Developer with a written statement, indicating in adequate detail in what respects Developer has failed to complete the Improvements in accordance with the provisions of this Agreement, or is otherwise in default under the terms of this Agreement, and what measures or acts will be necessary, in the opinion of the HRA, for Developer to take or perform in order to obtain such Certificate of Completion. Section 4.4 Deposit and Reimbursement of HRA Expenses. Developer has deposited $20,000 with the HRA for the reimbursement of certain out-of-pocket expenses incurred by the HRA in connection with the Project (the "Deposit"). The HRA shall treat the Deposit as a separate account on its books, but the HRA may commingle the Deposit with its other funds for purposes of investment and reinvestment. All interest earned on the Deposit shall accrue to the HRA. The Deposit shall be applied by the HRA for the payment of out-of-pocket expenses relating to this Agreement and paid or incurred by the HRA for environmental and geotechnical testing and consulting, financial analysis, and legal fees and expenses between August 12, 2003 and the earlier of (a) the Closing Date, or (b) the date of termination of this Agreement. 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 HRA shall return to Developer any amount remaining in the Deposit in excess of any accrued expenses remaining to be paid. Ifthis Agreement terminates prior to the Closing Date as the result of a default by Developer, Developer shall forfeit its right to the return of any funds from the Deposit. The HRA's rights under this Section 4.4 shall not limit any other remedy to which it is entitled under this Agreement or at law or equity due to an Event of Default by Developer, except to the extent that the HRA's damages are reduced by any amounts received under this Section 4.4. Section 4.5. Security Deposit. Prior to the date hereof, Developer has delivered to the HRA $50,000 as a security deposit. On the date hereof, Developer has delivered to the HRA an additional $100,000 as a security deposit. The $150,000 is referred to herein as the "Security Deposit". The HRA shall treat the Security Deposit as a separate account on its books, but the HRA may commingle the Security Deposit with its other funds for purposes of investment and reinvestment. All interest earned on the Security Deposit shall accrue to the HRA. If this Agreement terminates prior to the Closing Date as the result of an Event of Default by Developer, the full amount of the Security Deposit shall be retained by the HRA as liquidated damages. If this Agreement is terminated prior to the Closing Date due to an Event of Default by the HRA, the HRA 13 . . . ..~esolution-OO;..02 (Con't.) . EXHIBIT B . January 17, 2006 shall return to Developer the full amount of the Security Deposit. If the Closing occurs in accordance with this Agreement, the HRA shall apply the Security Deposit to payment of the Purchase Price. Section 4.6. Letter of Credit. At the Closing, Developer shall deliver to the HRA, at Developer's sole cost and expense, an irrevocable letter of credit in the amount of $200,000, in a form and issued by a bank previously approved by the HRA, which shall secure all of Developer's obligations under this Agreement. Any letter of credit provided under this Section shall provide for expiration in not less than one year. 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 letter of credit which shall extend at least one year beyond the expiration date ofthe letter of credit then in effect or, if earlier, until a date which is 60 days beyond the contractor's written estimated date for completion of the shell of the Improvements for Phase I, or Developer shall be in default hereunder with no opportunity to cure and the HRA may immediately draw upon the letter of credit then in effect. Any letter of credit delivered under this Section shall guarantee completion of the Improvements for Phase I by Developer in accordance with the Development Plans, and in accordance with Section 4.2. 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 for the Phase I Improvements. Any letter of crc;;:dit provided under this Section shall be returned to Developer in the event Developer terminates ~his Agreement pursuant to Section 11.1. 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 extent that the HRA's damages are reduced by its recovery under the letter of credit. Section 4.7. Payment of Taxes, Assessments, Etc. Following the Closing Date and until December 31, 2024,Developer agrees to payor cause to be paid, on or before their due dates, all real estate taxes, assessments, water, sewer and other charges, which become due and payable with respect to the Development Property or any part th~reof. Developer may, at its expense, in its own name and in good faith, contest any such taxes, assessments. and other charges. Developer's obligations to pay taxes under this Section with respect to a separate condominium unit shall terminate upon Developer's sale of such condominium to an unrelated buyer, but only with respect to taxes which become payable after such sale. Section 4.8. Payments in Lieu of Taxes. Developer also agrees that if Certificates of Completion for all of Phase I and a minimum of 13,500 square feet ofImprovements of Phase II and Phase III have not been issued by December 31, 2011, Developer shall pay to the HRA, on August 15 of each year beginning in 2012 and continuing until Certificates of Completion for a minimum of 13,500 square feet of Improvements of Phase II and Phase ill are issued, or December 31, 2024, whichever is earlier, an annual sum determined by the following formula: 14 . . . . ~-.-Resolution06-02 (Can't.) --EXHIBIT B January 17,-2006 Ax [B - C] x D For purposes of this formula, the following definitions shall apply: A = the average assessed market value per square foot for the completed hnprovements (excluding land) as of January 2 of such year B = 24,000 square feet C = the number of square feet of completed hnprovements as of January 2 of such year D = the aggregate real estate tax rate for the completed Improvements as ofJanuary 2 of such year ARTICLE V Insurance. Section 5.1. Insurance. (a) Developer shall provide and maintain, or cause to be maintained, at all times during the process of constructing the Improvements, at its sole cost and expense, and, from time to time at the request ofthe HRA, furnish the HRA with proof of payment of premiums on: (i) Builder's risk insurance, written on the so-called "Builder's Risk Completed Value Basis", in an amount equal to one hundred percent (100%) ofthe insurable value or one hundred percent (I OO%)-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 $2,000,000 for each occurrence (to accomplish the above-required limits, an umbrella excess liability policy may be used). The interest of the HRA shall be protected in accordance with a clause in form and content reasonably satisfactory to the HRA; and (iii) Worker's compensation insurance, with statutory coverage. The policies of insurance required pursuant to clauses (i) and (ii) above shall be in form and substance reasonably satisfactory to the HRA and shall be placed with financially sound and reputable insurers licensed to transact business in the State. The policy of insurance required pursuant to clause (i) above shall contain an agreement of the insurer to 15 . . . ..-R-esolutlonil6..;02 (Con 't.) "-E-XI-HBIT B -January 17, 2006 give not less than thirty (30) days' advance written notice to the BRA and Developer in the event of cancellation of such policy or change affecting the coverage thereunder. (b) Upon completion of construction ofthe hnprovements and prior to December 31, 2024, or when this Agreement has been terminated, if earlier, Developer shall maintain, or cause to be maintained, at its sole cost and expense, and from time to time at the request of the HRA shall furnish proof of the payment of premiums on insurance as follows: (i) Insurance against loss and/or damage to the hnprovements under a policy or policies covering such risks as are ordinarily insured against by similar businesses, including (without limiting the generality of the foregoing) fire, extended coverage, vandalism and malicious mischief, explosion, water damage, demolition cost, debris removal, and collapse in an amount not less than 90 percent ofthe full replacement cost of the hnprovements, but any such policy may have a deductible amount of not more than $25,000. No policy of insurance shall be written so that the proceeds thereof will produce less than the minimum coverage required by the preceding sentence, by reason of co-insurance provisions or otherwise, without the prior consent thereto in writing by the BRA. The term "full insurable replacement value" shall mean the actual replacement cost of the hnprovements (excluding foundation and excavation costs and other uninsurable items) and equipment. (ii) Comprehensive general public liability insurance, including personal injury liability for injuries to persons and/or property, including any injuries resulting from the operation of automobiles or other motorized vehicles on or about lithe Development Property, in the minimum amount for each occurrence of$2,000,qoO. (iii) Worker's compensation insurance respecting all employees of Developer employed at the Project in amounts not less than the minimum required by statute. ( c) All insurance required in this Article V shall. be taken out and maintained in responsible insurance companies selected by Developer which are authorized under the laws of the State to assume the risks covered thereby. At the first time that any insqrance is required to be in effect hereunder, Developer will deposit with the BRA a certificate or certificates or binders ofthe respective insurers evidencing that such insurance is in force and effect. Unless otherwise provided in this, Article V, each policy shall contain a provision that the insurer shall not cancel or modify it without giving written notice to Developer and the BRA at least thirty (30) days before the cancellation or modification becomes effective. Upon the BRA's request, Developer shall furnish the HRA evidence reasonably satisfactory to the BRA 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 BRA a certificate or certificates of the respective insurers as to the amount of coverage in force upon the hnprovements. 16 . . . . -Resolutron-06;.;02 (Con't.) n --E-xH1BIT B . ..january17 ,2006 (d) In the event the Improvements or any portionthereofis destroyed by fire or other casualty, then Developer shall within sixty (60) days after such damage or destruction, or as soon thereafter as is reasonably possible, commence to repair, reconstruct and restore the damaged Improvementsfo substantially the SaIlle or improved condition or utility value as they existed prior to the event causing such damage or destruction and, to the extent necessary to accomplish such repair, reconstruction and restoration, Developer shall, subject to the rights of the Holder of a First Mortgage, apply the Net Proceeds of any insurance relating to such damage or destruction to the payment or reimbursement ofthe costs thereof. Developer shall complete the repair and reconstruction ofthe Improvements, whether or not the NetProceeds of insurance received by Developer for such purposes are sufficient to pay for the same. Any Net Proceeds remaining after completion of construction shall be disbursed to Developer, subject to the rights ofthe Holder of the First Mortgage. The HRA agrees to subordinate its rights under this paragraph to the Holder of a First Mortgage, but only to the extent of amounts owing to the Holder under the First Mortgage. Notwithstanding the foregoing, if all or a substantial portionofthe Improvements are destroyed by the fire or other casualty, Developer shall have the right to raze to grade the d/llTIaged Improvements and clear all debris resulting therefrom .and landscape the Development Property with trees, shrubs and grass in a manner which is compatible with the surrounding area and reasonably acceptable to the HRA, or convert the use of the Development Property to other uses consistent with the Plan. ARTICLE VI Undertakings of the HRA Section 6.1. Sale of Development Property. As consideration for the purchase of the Development Property and construction of the Improvements by Developer, the HRA agrees to complete, subject to the provisions of Section 6.2 below, the following actions: (a) Sale of the Development Property to Developer pursuant to the Deed on the Closing Date. (b) Use reasonable efforts with the City so that the Improvements may constitute a permitted use under the zoning ordinance ofthe City. Section 6.2. Limitations on Financial Undertakings ofthe 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; 17 . . . u-~e-solation-06..;02 (Can't.) . EXHIBIT B January 17, 2006 (c) The HRA and Developer have received all necessary approvals from the City, the County Assessor and other authorities to implement this Agreement; and (d) The HRA is not the subj ect of any court or administrative proceeding seeking to enjoin or otherwise prevent the HRA from taking any action under this Agreement; The parties agree that the failure ofthe Closing to occur due to any ofthe above reasons shall not constitute an event of default by the HRA. Section 6.3. HRA to Maintain Existence. The HRA covenants and agrees that it shall at all times do or cause to be done all things within its statutory powers necessary to preserve and keep in full force and effect its existence, or to assure the assumption of its obligations under this Agreement by any public body succeeding to its powers. Section 6.4. HRA's Option to Terminate. ThisAgreementmaybeterminatedbytheHRA by written notice to Developer ifthe HRA is in compliance with all material terms of this Agreement and Closing has not occurred by March 31, 2006; provided, however, that termination of this Agreement pursuant to this Section 6.4 shall not affect the rights of the HRA to institute any action, claim or demand for damages suffered as a result of breach or default of the terms ofthis Agreement by Developer, and termination ofthis Agreement shall not terminate any provision contained h~rein which is clearly intended by its meaning to continue thereafter. ARTICLE VII Mortgage Financing Section 7.1. Approval of Mortgage. Any First Mortgage prior to issuance of Certificates of Completion for all of Phase I and a minimum of 13,500 square feet of Improvements of Phase II and Phase III shall require the prior written approval of the HRA'sDirector. Thereafter, Developer may grant any mortgage without the HRA' s consent. Developer and Holder may rely upon any approval granted hereunder by the HRA' s Director without additional action by the HRA. Approval shall not be unreasonably withheld or delayed, and shall be given if: (a) the HRA's Director first receives a copy of all mortgage documents; and (b) the HRA' s Director determines that the terms of the First Mortgage conform and are subject to the terms of this Agreement, except to the extent the HRA agrees to subordinate its interest to the terms of the First Mortgage. The Holder of the First Mortgage (or any nominee or agent controlled by the Holder) shall not be obligated to undertake or continue construction or completion ofthe Improvements while in possession of the Development Property pursuant to the foreclosure, or conveyance by Developer to the Holder in lieu offoreclosure, 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 18 --e . . .. n.~~esnlution06-02 (Can't.) -~1:-xrtIBIT B January 17, 2006 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 pennitted by this Agreement. Further, any party who obtains any interest in all or any portion ofthe Development Property from or through any Holder, except for any nominee or agent controlled by the Holder, whether through foreclosure sale or otherwise, shall be strictly subject to the terms and conditions ofthis Agreement, as such are binding on Developer, and such party shall not be entitled to any additional rights or privileges granted a Holder hereunder. Section 7.2. Notice of Default: Copy to Mortgagee. Whenever the HRA shall deliver any notice or demand to Developer with respect to any breach or default by Developer in its obligations or covenants under this Agreement, the HRA shall at the same time forward a copy of such notice or demand to each known Holder of any First Mortgage at the last address of such Holder shown in the records of the HRA. Section 7.3. Mortgagee's Option to Cure Defaults. After any breach or default referred to in Section 7.2 hereof, each such Holder shall (insofar as the rights of the HRA are concerned and subj ect to any rights of the Mortgagor under such Mortgage) have the right, at its option, for a period. of 90 days after notice of such default pursuant to Section 7.2 hereof, to cure or remedy such breach or default and to add the cost thereofto the Mortgage debt and the lien of its Mortgage. If a default is not susceptible of cure within such 90-day period, the Holder shall have such period oftime as is necessary to cure such default provided the Holder promptly commences the cure and thereafter proceeds to cure such default as soon as reasonably possible and provided such failure to cure within 90 days does not jeopardize the purposes ofthis Agreement or the Plan. However, if the breach or default is with respect to construction of the Improvements, nothing contained in this Section or any other Section ofthis Agreement shall be deemed to permit or authorize such Holder, either before or after foreclosure or action in lieu thereof, to undertake or continue the construction or completion of the Improvements (beyond the extent necessary to conserve or protect Improvements or construction already made) for more than 90 days after the Holder has received notice of such default pursuant to Section 7.2 hereof, without first having expressly assumed the obligation to the HRA, by written agreement reasonably satisfactory to the HRA, to complete, in the manner provided in this Agreement and in conformance with the Development Plans, the Improvements on the Development Property. Ifthe Holder enters into an agreement assuming the obligations of Developer under this Agreement, such agreement shall provide that all obligations of the Holder thereunder shall terminate at such time as this Agreement is assigned by the Holder in accordance with the provisions of Section 8.1 ofthis Agreement or in accordance with the following paragraph. Any Holder who shall properly complete the Improvements relating to the Development Property shall be entitled, upon written request made to the BRA, to a certification by the HRA to such effect in the manner provided in Section 4.3 of this Agreement. In addition to the assignments permitted pursuant to Section 8.1 of this Agreement, if the Holder of a First Mortgage acquires the interest of Developer under the terms ofthis Agreement, the Holder shall be permitted to assign its interest in this Agreement with the consent ofHRA, which consent shall not be unreasonably withheld, delayed or conditioned. In exercising its judgment asio whether or not to grant such consent, the HRA shall take into account only the financial condition and experience ofthe proposed assignee and its capacity to perform the obligations remaining to be 19 . . . ---Hmm1utton-oo~-o2 (Con't.) -E-xH1BIT B . -January 17, 2006 performed under this Agreement at the time of such assignment; provided that, after Certificates of Completion for all of Phase I and a minimum of 13,500 square feet of Improvements of Phase II have been issued, the experience ofthe proposed assignee shall no longer be a factor considered by the HRA as to whether or not grant such consent. In addition, the Holder may assign its interest at any time without the consent of the HRA to a person with a verifiable net worth in excess of $5,000,000. Any such assignee shall agree in writing with the HRA, for itself and its successors and assigns, to be bound by the terms and conditions ofthis Agreement, the Deed, and the Plan, and not to transfer, mortgage or otherwise convey any portion of the Development Property, except as permitted in this Agreement. Section 7.4. HRA's Option to Cure Default on Mortgage. Any Mortgage executed by Developer with respect to the Development Property, or any Improvements thereon, shall provide that, in the event that Developer is in default under any Mortgage authorized pursuant to this Article VII, the Holder, within ten (10) days after it has declared or given notice to Developer of a default, shall notify the HRA in writing of the default. The HRA shall have the right to cure any such default which occurs prior to issuance of Certificates of Completion for all of Phase I and a minimum of 13,500 square feet of Improvements of Phase II and Phase III. The HRA shall have a period of 45 days after notice from a Holder to effect a cure, provided that the HRA gives the Holder advance written notice of its intent to cure. In the event of such cure prior to the issuance of Certificates of Completion for a minimum of 13,:500 square feet of Improvements of Phase II and Phase III, the HRA shall thereupon be entitled, in addition to and without limitation upon any other rights or remedies to which it may be entitled;, to reimbursement from Developer or any successor or assignee of any costs and expenses incurreq by the HRA in curing such default. Interest shall accrue. on any amounts due the HRA under. ~s paragraph at the reference rate of interest then in effect at u.S. Bank National Association until such amounts are paid, and such amounts shall result in the creation of a lien on the. Development Property in favor of the HRA, subordinate to the lien of any First Mortgage. Section 7.5. Subordinate Liens. Until Certificates of Completion for a minimum of 13,500 square feet of Improvements of Phase II and Phase III have been issued, Developer agrees that it will not create, incur, assume or suffer any security interest, mortgage, pledge, lien, charge, or encumbrance upon the Development Property except for a First Mortgage permitted under this Article. Developer may, at its own expense, in its own name and in good faith, contest any involuntary lien, charge or encumbrance and not be in default hereunder provided Developer first posts a bond or provides other security to the HRA or to the Holder, or to an agent of the Holder, including, without limitation, a title insurance company, which the HRA reasonably determines is adequate to protect the interest of the HRA. 20 . . . ....-Resolutiol1l>6;;02 (Can't.) .~.~E-XH1 BIT B -January 17 ,2006 ARTICLE VIII Restrictions on Transfer; Indemnification Section 8.1. Restrictions on Transfer. Until Certificates of Completion for.all of Phase I and a minimum of 13,500 square feet of Improvements of Phase II and Phase III have 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 byDeveloper without the prior written consent ofthe HRA, which consent may be granted or withheld by the HRA in its sole discretion. The Parties agree that the terms and conditions hereof run with the land and shall be binding upon their successors and aSSIgns. After Certificates of Completion for all of Phase I and a minimum of 13,500 square feet of Improvements of Phase II and Phase III have been issued by the HRA, but prior to December 31, 2024, this Agreement and Developer's interest in the Development Property (or any part thereof) may be sold, transferred or assigned by Developer, provided that the purchaser, as ofthe date of such transfer, is reasonably determined by the HRA to be of sufficient financial condition, experience, and reputatiop to perform fully under this Agreement, and the purchaser first agrees in writing with the HRA, for himself, his heirs, representatives, successors and assigns, to be bound by the terms and conditions ofthis Agreement, and not to sell, transfer, mortgage or otherwise assign any portion of the Development Property except as permitted herein. In that event, Developer shall be released from any obligation or liability hereunder to the extent of the interest purchased. After Certificates of Completion for all of Phase I and a minimum of 13,500 square feet of Improvements of Phase II and Phase III have been issued by the HRA, but prior to December 31, 2024, this Agreement and Developer's interest in the Development Property (or any part thereof) may be sold, transferred or conveyed by Developer free of the foregoing conditions, but, in such event, Developer shall remain primarily liable for performance ofthe terms and conditions of this Agreement for the remainder of its term. The Parties agree that the terms and conditions hereof run with the land and shall be binding upon their successors and assigns. Notwithstanding the foregoing, the Parties also agree that nothing contained in this Section 8.1 shall prohibit the sale of individual condominium units by Developer, and that title to such units shall not be encumbered by this Agreement. Upon the sale of an individual condominium unit by Developer, the provisions of this Agreement and the Deed shall terminate with respect to such unit. Section 8.2. Indemnification. Developer hereby agrees to indemnify, defend and hold harmless the HRA, and its officials, employees and agents, against any and all claims, demands, lawsuits, judgments, damages, penalties, costs and expenses, including reasonable attorneys' fees, arising out of actions or omissions by Developer, its employees and agents, in connection with the Project. This provision shall continue indefinitely after the termination of this Agreement. 21 . . . _m_ .---R-esolotion-06.;;02 (Con't.) -.EXHIBIT B -. janoary17 ,-2006 ARTICLE IX Events of Default Section 9.1. Events of Default Defined. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement, anyone or more of the following events: (a) Failure by Developer to perform on the Closing Date as the same may be extended pursuant to the terms of this Agreement. (b) Subject to Unavoidable Delays, and extensions agreed to by the Parties, failure by Developer to commence and complete construction of the Improvements on the Development Property pursuant to the terms, conditions and limitations of Article N ofthis Agreement. (c) Until December 31, 2024, failure by Developer to observe or perform any material covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. (d) Until Certificates of Completion for all of Phase I and a minimum of 13,j500 square feet of Improvements of Phase IT and Phase III have 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 (j)r,a portion of Developer's property, or an assignment by Developer for the benefit of creditbrs. ( e) Until Certificates of Completion for all of Phase I and a minimum of 13,500 square feet of Improvements of Phase IT and Phase ill have been issued, filing against Developer in any court, pursuant to any federal or State statute, of a petition in bankruptcy or insolvency, or for reorganization, or for appointment of a receiver or trustee of all or a portion of Developer's properties, if such proceeding is not dismissed within 90 days after commencement thereof. (f) Until Certificates of Completion for all of Phase 1 and a minimum of 13,500 square feet of Improvements of Phase IT and Phase III have beerl issued, commencement by the Holder of any First Mortgage of foreclosure in the event of a default in any of the terms or conditions of the First Mortgage. (g) Until Certificates of Completion for all of Phase I and a minimum of 13,500 square feet of Improvements of Phase IT and Phase ill have been issued, any merger, consolidation, liquidation, reorganization or trans.fer of all or substantially all of Developer' s assets. Section 9.2. Remedies on Default. Whenever any Event of Default occurs, the HRA, subject to any rights of the Holder ofa First Mortgage which has been approved by the HRA 22 u. . . ... n_n~~~ototlon-06..02 (Con't.) n-EXHIBIT B . January 17, 2006 pursuant to Section 7.1 of this Agreement, may take anyone or more of thefollowing actions (but only if the HRA is not then in default and oIlly after provision of60 days' written notice which sets forth the nature ofthe default to Developer in the case of an Event of Default under Section 9.1(a), (b), or (c), and then only if such an Event of Default has not been cured within said 60 days or, if such an Event of Default cannot be cured within 60 days, Developer does not provide assurances to the HRA reasonably satisfactory to the HRA that such an Event of Default will be cured as soon as reasonably possible and that it will not jeopardize the purposes ofthis Agreement and ofthe Plan): (a) The HRA may suspend its performance under this Agreement until it receives assurances from Developer, deemed adequate by the HRA, that Developer will cure its default and continue its performance under this Agreement. (b) Ifthe Event of Default occurs prior to the Closing Date, the HRA may cancel and rescind this Agreement. (c) If the Event of Default occurs after Closing Date but prior to issuance of the Certificate of Completion for Phase I, the HRA may reenter and take possession of the Development Property, revest title to the Development Property in the HRA, and exclude Developer from possession ofthe Development Property. The HRA shall thereupon use its best efforts and act in good faith to sell the Development Property at the best price obtainable (provided such sale is permitted by applicable law) and as soon as reasonably possible, such sale to be on such terms and conditions as the HRA deems reasonable and appropriate to satisfy the provisions of the Plan. The HRA shall apply the proceeds of such sale first to reimburse the HRA for all costs and expenses incurred by the HRA (less any amount received by the HRA from any security provided by Developer) including but not limited to taxes, assessments, utility charges, payments made to discharge any encumbrances or liens, reasonable attorneys' fees and expenses; second to the Holder of a First Mortgage to the extent of the unpaid mortgage; third to reimburse Developer in an amount equal to the Purchase Price plus other reasonable acquisition and construction costs incurred by Developer in connection with the Project including architects' and engineers' expenses; and the balance to be retained by the HRA. (d) The HRA may initiate such action, including legal or administrative action, as is necessary for the HRA to secure performance of any provision ofthis Agreement or recover any amounts due under this Agreement from Developer or under any security provided by Developer. (e) Sue for damages, provided that any damages shall be reduced to the extent of any amount recovered by the HRA under any security provided by Developer. Section 9.3. No RemedvExclusive. No remedy herein conferred upon or reserved to the HRA is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in iilddition 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 23 . . . ---~e-sn1ution-06--o2 (Con 't.) ---E-xHIBIT B january 17, 2006 be construed to be a waiver thereof, but any such right and power maybe exercised from time to time and as often as may be deemed expedient. Sectiori9.4. No Additional Waiver Implied by One Waiver. In the event any agreement contained in this Agreement should be breached by any Party and thereafter waived by the other Party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder ARTICLE X Additional Provisions Section 10.1. Equal Employment Opportunity. Developer agrees that during the construction of the Project neither it nor any ofthe contractors will unlawfully discriminate against any employee or applicant for employment because of race, color, religion, sex, age, national origin, or political affiliation. Section 10.2. Not for Speculation. Developer's purchase ofthe Development Property, and its undertakings pursuant to this Agreement, are and will be used for the sole and express purpose of redevelopment of the Development Property and not for speculation in land holdings. I I Section 10.3. Titles of Articles and Sections. Any titles of the several parts, Articles land Sections ofthis 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 prbvided in this Agreement, a notice, demand or other communication under this Agreement by either party to the other shall be sufficiently given or delivered if it is in writing dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally; and, (a) in the case of Developer, is addressed to or delivered personally to Developer at 101 East Fifth Street, St. Paul, Minnesota 55101, Attention: Dale Joel, with copies to John Nolde, Winthrop & Weinstine, 225 South Sixth Street, Suite 3500, Minneapolis, Minnesota 55402; and (b) in the case of the HRA, is addressed to or delivered personally to the HRA to Housing and Redevelopment Authority In and For the City of Golden Valley, 7800 Golden Valley Road, Golden Valley, Minnesota 55427. Attention: Director, with copies to Allen D. Barnard, Best & Flanagan LLP, 225 South Sixth Street, Suite 4000, Minneapolis, Minnesota 55402. 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. 24 . . . --~~solution 06;;;02 (Con't.) ---CXHIB IT B -January 17, 2006 Section 10.5. Counterparts. This Agreement may be executed III any number of counterparts, each of which shall constitute one and the same instrument. SectioIl 10.6. Modification. If the HRA is requested by the Holder ofaFirst 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 ofthe Plan. Section 10.7. IIlterpretation and Amendment. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. This Agreement constitutes the entire agreement of the Parties on the subject matter hereof, superseding any prior oral or written agreements. This Agreement can be modified only by a writing signed by both Parties. Section 10.8. Severability. In the event any provision of this Agreement shall beheld invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provisions hereof. Section 10.9. Duration. This Agreement shall be effective as of the date hereof and shall continue in full force and effect until December 31,2024 or, if earlier, the date on which Certificates of Completion for all of Phase I and for a minimum of 13,500 square feet of Improvements of Phase II and Phase ill have been issued and all ofthe condominium units therein have been sold to bUY!ers. This Agreement shall survive the Closing Date and theHRA's delivery of any Deed to Developer. Upon Developer's request after termination of this Agreement, the HRA shall execute a written termination agreement in recordable form. Section 10.10. Binding Effect. Subject to the provisions of Article Vill, this Agreement is binding upon, and shall inure to the benefit of, the successors and permitted assigns ofthe Parties. Section 10.11. Consents. Any consent or approval required of a Party under this Agreement shall not be unreasonably withheld or delayed. Section 10.12. Certificates. Upon reasonable request from time to time, the HRA shall execute and deliver written certificates to parties designated by Developer concerning whether the Agreement is in effect, whether any defaults exist under the Agreement and other similar matters. Section 10.13. Time ofthe Essence. Time is of the essence in the performance by each Party of its obligations under this Agreement. 25 . . . -Resolution- 06...02 (Con't.) . ~E-xrtlBIT B january 17 ,2006 ARTICLE XI Termination of Agreement Section 11.1. Developer's Options to Terminate. This Agreement may be terminated by Developer by written notice to the HRA in the event of any of the following events or conditions, unless Developer's failureto comply with all material terms ofthis Agreement, or Developer's then existing Event of Default, has caused such event or condition: (a) Subject to Section 6.2, the HRA fails to comply with any material term ofthis 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 March 31, 2006, unless extended by the Parties; (c) If Developer's title objections are not waived by Developer or cured by the HRA pursuant to Section 3.1. In the event of a default by the HRA prior to the Closing Date whichis 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. Termination ofthis 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 ofbreach or default ofthe terms of this Agreement by the HRA, and termination ofthis Agreement shall not terminate any provision contained herein which is clearly intended by its meaning to continue thereafter. 26 . . . . -r:tesutotionD6.;02 (Con't.) . -~EXHIBIT B january 17 ,2006 IN WITNESS WHEREOF, the HRA has caused this Agreement to be duly executed in its name and behalf and its seal to be hereunto duly affixed and Developer has caused this Agreement to be duly executed in its name and behalf, on or as of the date first above written. HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY By Its And Its GVEC PROPERTIES, LLC By: Its: 27 . . . . . '~esotati01r06;;.02( Con't.) EXHtBlT B .. ~-january17 ,2006 STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this _ day of 2005, by pau'Ta Pentel 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 STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN) The foregoing instrument was acknowledged before me this _ day of 2005, by of GVEC PROPERTIES, LLC, a Minnesota limited liability company, on behalf of the organization. Notary Public DRAFTED BY: Best & Flanagan LLP 225 South Sixth Street, Suite 4000 Minneapolis, Minnesota 55402-4690 ~ 28 -. . . nnRes-oIutionn06,,;02 (Con't.) -E7<1=tIB I T 8 --january 17,2006 EXHIBIT A LEGAL DESCRIPTION Lot 1, Block 1, North Wirth Parkway 5th Addition, Hennepin County, Minnesota. AI A-I . . . .......Resolutiuni)6..:02 (Con't.) ..eXHIBIT B january 17, 2006 EXHIBIT B CERTIFICATE OF COMPLET~ON I j i HOUSING AND REDEVELOPMENT AUTHORITY I IN AND FOR THE CITY OF I GOLDEN VALLEY, a public body corporate (the "HRA"), aQd GVEC PROPERTIES, LLC, a Minnesota limited liability company ("Developer"), pre\Tibusly entered into the GVEC PROPERTIES, LLC Private Development Agreement (the "Agr~ement"), 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: I I Lot 1, Block 1, North Wirth Parkway 5th Addition, HeJepin County, Minnesota. I I The Agreement contains certain covenants which, if ndt performed by Developer, or its successors and assigns, would result in a forfeiture and right of r~-entry by the HRA, its successors and assigns. As of the date hereof, Developer has performed all ~fsuch covenants contained in the Agreement to the satisfaction of the HRA, including the covenaq.ts in Article IV of the Agreement requiring completion of the construction of Phase I of the improyements. I NOW, THEREFORE, it is hereby certified that all ~fthe covenants in the Agree~ent, including the covenants in Article IV requiring completion of t11e construction of Phase I ofithe improvements, have been duly and fully performed by Developer as of the date hereof and that the provisions for forfeiture oftitle and right to re-entry by the HRA ror breach of such covenants, hnd the escrow securing performance thereof, are hereby released abs1lutely and forever insofar as apply to the property described above. The County Recorder in and for the County of Hennepin and State of Minnesota is hereby authorized to accept for recording and to rfcord the filing ofthis instrument. This instrument shall be conclusive determination of the satisfact1ry termination ofthe covenants of Article IV of the Agreement requiring completion of thefonstruction of Phase I of the improvements. Notwithstanding the foregoing, those covenants dontained in the Agreement which are to remain in full force and effect until December 31, 2024, sh1ll remain in force and effect until that date, unless earlier terminated in accordance with the Agreefuent. B-1 -~esolotion06..02 (Can't.) ujanuary 17, 2006 --EXHIBIT B Dated: HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY . By: Its: And: Its: STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this _ day of , 20_, by Scott Grayson 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 . /1'; ;;'~~'.I l:.liII'raa;-- ----._.--.~,- -::::-::-:::':,::-";:I6'IJ.~r;HUL:-_---- C.1IIIG.-NlW'.'<<JT II<: . .oO ................ . '~If.u.T,..1!e5 ..... 1ST" aHlLlIG '- . :' 'lFOA1!DMl7I. O.2NJ . ,.::B' ," ..,' .. ..... OUTLOT A ~ C\J '.~. , ' ..... ....../" /::../ ( / ... ~ l./ " CJ I ....... C!) cr w co -' ~ (b)~~ ;"'- III III ~ The Desi&n Partnersrup Ltd. 111 __.....SIlIIh ....... ... 55401 ".. "1 JJ8 Met ,. &I, JJI OJ45 NORTHWIRTH BUSINESS CENTER GOLDEN VALLEY, MN LIilIIIBUmIlU . .......... -- Ml/f'laa.......-. ....... . -- -..... .....oIl:aW_.... . -- --.......1'lU -..... ----. CICI ..........L.-r... -..... ......--. -- I:IUI...._.......... II.........J a_..au ,. ~ .....J ..................... _,...".ut_ IIIUI.~CII...'ftAIUI .=. ........- -... ~ 00 -'-ICIIUlIII .... -..... _fIf'II_... CoC DIIIII_...UH ..... ............. 1IPiMU_1III. ~ -""'-.... 'fT =.::=- - . ~ ~ 00, o a- r+ ~. d> (J) I o '" a o ::J r+ '-"" o rrt. <:: rrtl ~ I -ol ~ :z (/) c...L Q) ::::i c Q) -< ..... DEVELOPER: ~""-.I BROOKSTONE, INC. '" Conlocl:Rick Mortens 763-588-0593 0 NOV.ll,2004 0 (J) . . . ~~~~~s-01 -~~6P~NT PLANS January 17 , 2006 ~ :i! il! ~ ~ "" ~ ~ 15 " DAHLBERG DRIVE -- ~ --- /" ./" -- II ~I --- - ........ ""'- " "- \ \ \ \. it 9 P II In ee I g .. I II ;i il !~ III ., II II; ~~ IIII Idl II ~ _PINl ......... uPARA.l...A.OUNT .... ~&I'"&iA1IDN . NORTH WI RTH The Design Partnership. 11_1_ -- F~~,r.1\-r=L~~ BUSINESS CEt\ri R leD" F'IcIc. ENGINEERING &: OESIG~ ... Itl1'h1rd~SouIh 1440 AReAl)[ SIllIEr Slll(2Oll sr. PAUL IWUDlG DIlfYE 00UlDI WUL"t. MNGOl Minneapah. Un. S5401 FA)( (151) 716-ss.1 (el) 171-tZ44 1':-- -- ~ .... C-2 .---Resa - 'oniJ6;.:02 (Con't.) i\ --5f-m~~~ PLANS -j-anuary 17. 2006 r "C" a L foe' . ,. ..- :---~:-::':;~-:-----~-'------~---~---~! " ':::~~~'?;>,' 00. 91' () () if ~ ~ ~ >1: ... ~ ~ . - - !i ~ /Ill1lfq IfifW ~ I~ llg l(~ ~~ ~. II iPI ~I II II 5.11 S fPI Ii is ~!!; i 1111 i l( . /1IIID"1l.~ NOR~PINlWIRTH The Desig~ortnerShip, uPARA.AAOUNT C BUSINESS CEN R lSO.,.fIIoc,. ENGINEERING & DESIO - ___ ___.._. 111..._..... ,..._SIRt!EJ SlllE21lO ST...... ---. ........... -. MInMapDIia, Mn. 55401 FAX (151) 776-5&81 (ISI) 771 CD1ftoA'IIOJI 1_-..rT__1IM _.......n..._... :f"-==-=-"'-rI.I.-:'~~"__r'--' -- --- C-3 (0 o o C\.I I'- ..... ~ (tl ::J ,::: ro T') I -- ~ c: o () '-' C\I <D, c;o o I c: o :g R '(/) :(1) ~ I ! 'c.-;C.~~!!a~------~/...>. ----- ._-_._~~~~~c'-:'~-- ," .. // //:.. . D-D Cl/JTLOT A ;;:j;J:~/:>~~ PAI'iKIItl RfGlJI_S, TOTAl.... c:E 1lLCG61... . 3I.W if. t31l.DG$".&fJ 12J1.DCi1 .ot"..,) fIl!WG- '''.61) PAlICHi 6t4U.lWIO, ~ &P. _llSO.Il661.1lU_ lDIA1.l'oIIIKHla46l11'll\l61.llU .... ...... "'. .. ' ........;.. /." ;. "i' I / /'./ f " L..kiH!IIr:.~TNBOLS, E9 . 0<WIiI) LlOHI ~ . AtIUPQJ$ " Lt1M1ED B1ElD!D 0<WIiI) .. =.tt:.... l/lIllIEI. .lCaHI1EIlS <&1ft! """",., $NU: lEAD eCDc LIGHJ I'POLE ... ........ LlOHIHi k.&FnftJMIN:iLEIP DaIllIIEAD lOX L,"" .'_ CeO -UDaU LliHJKi --... Pt..WI USI: Sil. P!Gntmgs 01Y. KEY 80TANICAL NAI4 co...UClH NAWE Slzt/R(lOT TREES J Nl'O .......-.. NorthemPinOok 2~1/2. B&.:B 2 tit C.1liI occicIInlob CIIfflIIIOftHockbeny 2-1/2" 8&.8 1 'OA Froxlnul amerlcOl'lll 'AuWmn Purpll:' AulumftPurpIl:YI1IilIAltl 2-1/2. N:B . S1. CledibiCI.triacoDIhoa"SYncol.' SUllburalHollcplcust 2-1/2" B&B . '" P"IIIIIIIl9'a AulilriM PIrIe ~'-o" ... . .. PinuI ....lriI ......... 5'-0. ... 1 '" Acaf!linnoll Amur Ua,... fIIlIItl';'dem " B48 . ICH CroIclevYI c:m-goIi lnIrmiI lhotnInICoWpur Holflham " B48 . Fe MalIII.'oIGriItyof~. FIonting CRIb Ie.. " ... SHRUllS " eL ....... ...... CGIMIOft-LIoc: 5Go!. Pol 11 NtC WlIImlllnlri/ob&im ~HithbulhCranb~ SGaL Pol "DOE EIIClA)ifftUSIIfatuIi'Conlpacbq' o.arfWitlgc4~ 5 Gal. Pot 5 .... ~potuIo""'IC'Ilft' ......."" 5Gol. Pot " AIlS SplrOlO'IIIima1da'ollntbaaJ'woter<<' oWIIcIn,.wawwSpifeo 3Gol. Pot JO GIS 5ptuo . -kInoidO 'C/XdIkuM' CollHIQmo s,no 3GoL Pol JI OIlS s,iraao.IIumaIdo'Galdmound' GoldmoundSpirco JGof. Pot " .. Wtigcll I\clridla 'Minuet' IinutIWeigdl 3 GIll. Pol . 5J Jun/(ltnlIaablncI'Scondio' .......-- 5 Go/. Pot " JJ ~horboIII.'Campoc"'I' AnclomI ~uniPar ..... .... ..- Thuja oc;cldem~'HIb Wintergruft' HctzWinlefgrnAArtlonftCII 5Gc1f; Pol II fA Thujl occidWaIiI lec::t1ny' Tecftny kIlclMloe. uprighIlorm 5 GaL Pat '2 "- "emeroc..,. WixodlfllC"ot~ lGa1. Pol . H -.... .....-....... IGo!. Pot PL\NTING NOTES; Cont~tor ahalt pI'ovIde _ )'lMII' ",<<ant.. of all p1lW1t mQIWIcIIa. Th, ",arant.. .lgIM on 1"- Ollll 01 "".lancbo:gpl .vcnltM1~' _"ten O".,lonel. "' .... InllIoI planting. R""...ent pllll'll molatklll ...011 aiM bow '" CII\f: ,.or guOfOftI.. com~, upon planting. ~l ptanb to b, Mrth__.._ end ~ Plllllb to b. IrI.Itllll_ _ p. ,tan_cs AAH pion'''', p-octli:... u......ninIuIft 12- 1_ ,.'lnt 101 an trl" OI\d ,0 011 8hrWoI. Contractor IhalI vwlfy k1cotkin. wllb II1II "tlll1a prior to kwItllhUiln of p1anta.. All londKop~1 DlId lOCI an. "'altbl lrrlgol" .tIll an ~gr:ouncl 1Pfk\Id.. Stoll...., 01 tn.. llflt~ rwpoaltlan If not plYmb oft. one ,.Ill'. wropllll ~-barbd tr_-Ialen lop 0Ml boUom. Rem_ by Aprl 1. Open top of Ilultap an 88 motc..iQl.. ,~ pol on "Ueel plonla: 'Pill anu Moll oport pm pot.. PnIn, plon', ... "'_'" - P" ,tCllldllrcl nun")' practice. Owrl. "'oil D. tftpClQ.... 1M malnt_ce oU_ ltGcaploncl 01 "'. WClIII br the 0..... Planl, "'all b. lInIn4Ilflot.y p/GrIt,d UPOft arrf>.oQI 01 all.. PrOflwty h'''-in mOler/lQ II Il&c:naary; I......, 0111)'. All ...turMd 111'_ t. be IllddId ..nl... oth_iN not... SolI IboII H _u..n 9"OWll oIUI h....dr. Plantlllt hili fDr' Itlnlbt _ tt_ (4 02. mrn.) _d borNr fotNtc, 4- _ .- 0' 1-1/2" .oaheellll.... RodI mulch CIIICt of- ~ (c-.rdal ",cadi) bIG. pol)' "ging. Th, edtlng Ihal h pfoctd and .tllked .w. lnlooln cutW8. A, 2'- ww. rock muIdl moJnt.nonCI ..,. 1IIa11 b, Inltolltd orounct UY enth bUIldIng. ...crtnllllWlnCl ..rIp lIIal 1'1_ wINd bGn'iII" fDllrll; UIId... rock and edged .ith COIft/ftWdal Idting. _Olonll II II... Ol'llt lroundllllcbedI oIonllflflC&. SIlI'HGllI hllf4woocl mulct! .- 0" Ibal bl lIl'ovkMcI No ,.ktlnln, _oil. 01" ,...0Hd ,... this '1Ia. Any Jut"". .011. 01'....., \l:a '.spon.lbilty 01 tI\a Londlllap. "'chIt.cL l.al\dacafIin, l1li'_0 lbl pilla "ol~ or_ will 1M Cl'lClted bhld OIl IKh or.s ..c11k:. daslgn onO Mln <<...Iollon. ""'" lWO....TE..:JHlIIl$OI1llQ! STMlNGME..... ..... no ""'" IWlDlOOSOflOOllr6 CONJAlIoIlIZEDIM1Ilw.(hP.). SCAlIrr.,qgwMOSlGfW 1CIIl....101'tAImlll .... MtM.1ElllMI[IlOIIXlIOI1llEE ..... NO __ '" ..... ICNWY llCIl'lDII MIll sas.IJF HOlfPllOllIDI'UIfJtC. SCNlINIllRDY.....SIllOOI ItIUPllIOlIlOl'IIMIIll. COIlftIlOtwlESItllQlOOl -........... ............ 1Il1l.UK1OlEltCClNVotflil1lll - COMIFEROUS mEf. PI.AHtIHG DUAl.. SIIRIlII IUHIIHG llEtIII. DlClI:IUCXJS11lfEPLNflINGDEJAIL . . BRODSHO CONSULTING ~- ..-... 69B NORTHBRIOGE COURT EAGAN, UN ~12J PHONE: 651-688-8023 FAX: 651-456-5748 I h...lby c:ertlfy thot 11'11. plon wos p'ep_ad ~lo~ o~ ':rn~-::;y,,:,,~~:c:ton~~:~a~r:l~lIcI und... the low. of tho Stota of Minnesota. .... ..... .. l'GlOfIl OIl ...om.uo SOIL REG. NO.~ DATE J~j . Hid ~II In 11 If~~ n !It I I!b · II I <::t li.j l I lil~ u !!L g I .Q.II ~ II Q) ~~ -E hi 0 a.. '5>u .- )1 ~ hI {: ~tl ,--- . l!8D~Q!6 ! I~~:il~ . ... '-"R~50tation1J6~02 (Con't.) . . . ii -r:-mtmrra: DEVELOPMENT PLANS ii c-s January 17,2006 ~~~ F:; - ~- ~ 0:: w l- I ~ u mz w:E Z' ~~ alz ::cg ~~ ~ ::c 152 o Z -d .:s Sire. or;; ~ ~~I! A ~ Jii~~ ~ ~ ~JL . . . --R-e-so1utiorr06-02 (Con't.) u--emSIT B --January 17 ,2006 EXHIBIT D TAX INCREMENT NOTE The Golden Va))ey Housing and Redevelopment Authority in and for the City of Golden Va))ey (the "HRA"), promises to pay to GVEC Properties, LLC ("Developer"), and its permitted assigns, solely to the extent and in the manner hereinafter provided, the principal amounts listed on Schedule A attached hereto, together with interest which shall accrue as provided herein, on the Payment Dates as hereinafter defined. This Note is a special and limited obligation and not a general obligation ofthe HRA, and has been issued by the HRA pursuant to the GVEC Properties, LLC Private Development Agreement, dated ,2005, between the HRA and Developer (the "Development Agreement"), to aid in financing enviromnental remediation costs incurred and to be incurred by the HRA and Developer within and for the benefit of Tax Increment Financing North Wirth District No.3 (the "Tax Increment Financing District"). Capitalized terms used herein and not otherwise defined herein shall have the meaning given to them in the Development Agreement. The principal of this Note shall consist of Developer's reasonable out-of-pocket costs and expenses actually incurred by Developer for environmental remediation, reasonably required to pennit construction of the Improvements on the Development Property, but only to the extent such expenses are described in Section 3.2(e) of the Development Agreement, and not in excess of the dollar limit contained in the Development Agreement. Within ten days after the end of each month in which Developer incurs expenses which are eligible for repayment under this Note, Developer shall deliver to the HRA an itemized detail for the expenses incurred in such month, and the amount thereof shall be added as principal to Schedule A. The HRA shall signify its approval to each addition by the signature of a duly-authorized representative on Schedule A. Interest shall accrue at the rate of 6% per annum on any principal amount included in this Note until paid in full. Interest shall begin to accrue when (1) the Certificate of Completion for Phase I of the Improvements has been issued, and (2) Developer has incurred reimbursable expenses described in Section 3.2(e) of the Development Agreement equal to or greater than the Purchase Price. Interest shall accrue only on such reimbursable expenses to the extent they exceed the Purchase Price. Each payment on this Note shall be by check. made payable to Developer and mailed to Developer at its postal address within the United States which shall be designated from time to time by Developer. Principal and interest on this Note shall be payable solely from Tax Increment, as hereinafter defined, on each February 1 and August 1 commencing August 1,2007, to and including February 1, 2027 (the "Payment Dates"). On each Payment Date, the HRA shall apply all Tax Increment to the D-l . . . ---~e-so1ution-()6-02 (Con 't.) ~-E7{HIBIT B - January 17 ,2006 payment of this Note. All such payments shall be applied first to accrued interest and then to the principal amount ofthis Note. "Tax Increment" is defined as all tax increment derived by the HRA from the Tax Increment District in any calendar year then on hand with the HRA. In the event that Tax Increment is not sufficient to pay the principal of and interest on this Note when due, the failure oftheHRA to pay such principal and interest shall not constitute a default hereunder. THE HRA MAKES NO REPRESENTATION OR WARRANTY THAT THE TAX INCREMENT WILL BE SUFFICIENT TO PAY THE PRINCIPAL OF AND INTEREST ON THIS NOTE. This Note and the HRA's obligation to make any payments under this Note shall terminate upon the earlier of (a) occurrence of an Event of Default by the Developer under the Development Agreement, which is not cured within the time permitted by the Development Agreement, or (b) February 1, 2027. Any unpaid principal and interest remaining at the time of termination of this Note shall be considered satisfied and discharged. EXCEPT AS TO THE OBLIGATION TO MAKE PAYMENTS FROM THE TAX INCREMENT, THE NOTE IS NOT A DEBT OF THE HRA, THE CITY OF GOLDEN V ALLEY, OR THE STATE OF MINNESOTA (THE "STATE"), AND NEITHER THE HRA, THE CITY OF GOLDEN VALLEY, THE STATE NOR ANY POLITICAL SUBDNISION THEREOF SHALL BE LIABLE ON THE NOTE, NOR SHALL THE NOTE BE PAYABLE OUT OF ANY FUNDS OR PROPERTIES OTHER THAN TAX INCREMENT. Developer shall never have or be deeI:ged to have the right to compel any exercise of any taxing power of the HRA or the City of Golden Valley or of any other public body, .and neither tbe HRA nor the City of Golden Valley nor any director, commissioner, council member, board member, officer, employee or agent of the HRA or the City of Golden Valley, nor any person executing or registering this Note shall be liable personally hereon by reason of the issuance or registration hereof or otherwise. This Note may not be assigned by Developer prior to issuance by the HRA of Certificates of Completion for all of Phase I and a minimum of 13,500 square feet of Improvements of Phase II, except that Developer may assign and pledge this Note to secure any loan to finance the costs ofthe Project, and may also assign this Note to an assignee of the. Development Agreement in an assignment which meets the requirements of Article VIII of the Development Agreement. D-2 . . . --R-eso1ation- 06;;02 ( Can't.) -EXH1BIT B -january 17,2006 IN WITNESS WHEREOF, the BRA has caused this Note to be executed by the Chair and Director of the HRA, and has caused this Note to be dated as of , 2006. Paula Pentel~ Chair Thomas D. Burt, Director D-3 . . . ..~o1utron'-o6.;.02 (Con't.) Date Amount --E-XHtBIT B -january 17, 2006 SCHEDULE A HRA Sif!nature D-4 . . . -Re-su1ution'{)6~02(Con't. ) -EXHtBIT B 'January 17 ,2006 EXHIBIT E LIMITED WARRANTY DEED FOR VALUABLE CONSIDERATION, THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY, a public body corporate created pursuant to Minnesota Statutes, Section 469.001 et seq. ("Grantor"), hereby grants, bargains and conveys to GVEC PROPERTIES, LLC, a Minnesota limited liability company ("Grantee"), real property in Helmepin County, Minnesota,described as follows (the "Property"): Lot 1, Block 1, North Wirth Parkway 5th Addition, Hennepin County, Minnesota. together with all hereditaments and appurtenances belonging thereto, and also together with any after-acquired title. Grantor, for itself and its successors and assigns, hereby covenants with Grantee, and its successors and assigns that it has not made, done, executed, or suffered any act or thing whatsoever whereby the Property, or any part thereof, now or at any time hereafter, shall or may be imperiled, charged or encumbered in any manner whatsoever, except for any covenants, conditions, or restrictions contained in the North Wirth Parkway Redevelopment Plan adopted by Grantor in 1978, as amended (the "Plan"), and any covenants, conditions, or restrictions contained in the GVEC PROPERTIES, LLC Private Development Agreement dated ,2005, between Grantor and Grantee (the "Agreement"). Provided: 1. It is understood and agreed that this Deed is subj ect to the restrictions, reservations and encumbrances of record, if any, all building and zoning laws and ordinances, all other local, state and federal laws and regulations, and the covenants, conditions, restrictions and provisions of the Agreement. It is also understood and agreed that, prior to December 31,2024, Grantee shall not sell, transfer, mortgage or otherwise convey the Property, or any part thereof or interest therein, except as pem1itted by the Agreement. Grantee hereby covenants and agrees to begin and diligently prosecute to completion the development ofthe Property at such times and as otherwise provided inthe Agreement. Promptly after completion of the Improvements (as defined in the Agreement) in accordance with the Agreement, Grantor will fumish Grantee with a Certificate of Completion, as provided in the Agreement, which shall be the conclusive determination of satisfaction and termination of the agreements and covenants in and pursuant to the Agreement with respect to the obligations of Grqntee to construct the Improvements, and the dates for the commencement and completion thereof 2. If an "Event of Default" by Grantee, as defined in Section 9.1 of the Agreement, which is not cured within the period provided in Section 9.2 of the Agreement, exists prior to the recording ofthe Certificate of Completion for all of Phase I and a minimum of 13,500 square feet of E-l . . . --RersolotionC6-02 (Con't.) --EXHIBIT B January 17 , 2006 Improvements of Phase II and Phase III, as described in the Agreement, then Grantor shall have all of the rights and remedies specified in Section 9.2 of the Agreement. 3. Grantee hereby agrees to do the following: (a) Maintain insurance of such types and amounts as specified in Article V of the . Agreement; (b) Pay real estate taxes and special assessments on the Property when due, if not exempt from such taxes and assessments; (c) Devote the Property to only such uses as are permitted under the Agreement. The parties agree that the covenants contained in this Section shall terminate on December 31, 2024, or earlier if provided in the Agreement. 4. There shall be no discrimination in the use of the Property by Grantee on account of race, color, religion, sex, age, national origin, or political affiliation during the period that the Plan remains in effect. The parties agree that all of the covenants and restrictions contained in this Deed shalJ be binding upon Grantee, its successors and assigns, for the benefit of Grantor, its successors and assigns, and shall also be deemed to run with the land. IN WITNESS WHEREOF, Grantor has caused this Deed to be duly executed on its behalfby its duly authorized representatives this _ day of , 2006. HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CIty OF GOLDEN VALLEY By: Paul a Pentel Its Chair By: Thomas D. Burt Its Director E-2 . . . --Re-sototion1l6...02 (Con 't.) EXHIBIT B January 17 ,2006 STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this _ day of , by Scott Grayson 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 E-3 . . . -~1)ototlOTTi)6;;02(Con't. ) EXHIBIT B -january 17. 2006 EXHIBIT F RESTRICTIVE COVENANT AGREEMENT This Restrictive Covenant Agreement (the" Agreement") is made this _ day of , 2006, by GVEC PROPERTIES, LLC, a Minnesota limited liability company ("Developer"). Developer is the owner of land in the City of Golden Valley (the "City") in Hennepin County, Minnesota, described in Exhibit A attached hereto and made a part hereof (the "Land"). The Land is subject to the GVEC Properties, LLC Private Development Agreement, as amended (the "Development Agreement"), between Developer and the Housing and Redevelopment Authority in and for the City of Golden Valley (the "HRA"). As part of the consideration for the Development Agreement, Developer has agreed to subject the Land to this Agreement. The Land consists of square feet. Developer hereby declares that the Land is subject to a restrictive covenant (the "Restriction"), and no improvements shall be made to the Land and the Land shall be maintained as open space unless and until: (1) the City of Golden Valley approves any improvements thereon by approval ofa P.U.D., and (2) Developer pays to the HRA, in cash, an amount equal to $1.00 per square foot of the Land, increased by 3 % per year, compounded annually, from the dat~ of this Agreement. Upon satisfaction of the above conditions, the Restriction shall automatically terminate, and the HRA shall execute a termination of this Agreement in a form proper for filing in the public land records of Hennepin County, Minnesota. The Restriction shall run with the Land, shall apply to and bind each and every successor in interest thereof, and is imposed upon the Land as a servitude in favor of the HRA. The Restriction shall continue and be binding upon the Developer and its successors and assigns for a period of thirty years fromthe date hereof, unless earlier terminated in accordance with the prior paragraph. The Restriction is for the benefit of the HRA, and the power and privilege of enforcement thereof against any party or parties who shall violate or attempt to violate the same by appropriate proceedings at law or in equity are granted to the HRA. Failure of the HRA to enforce any part of this Agreement upon its violationshall in no event be deemed to be a waiver of the right to do so as to any subsequent violation. HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN V ALLEY By Its And F-I . . . ~-" Re~o1utionf)6~02 (Con't.) ~n-E-XH1BIT B January .17,.2006 Its STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN) The foregoing instrument was acknowledged before me this _ day of 2006, by Paula Pentel Chair, and Thomas D. Burt, Director, of the HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN VALLEY, on behalf of the organization. Notary Public F-2 . . . ~e-so1otion'06;,;02. (Con't.) --E"XHIBIT B aVEC PROPERTIES, LLC By: Its: january .17,2006 And: Its: STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of , 2006, by , the of aVEC Properties, LLC, a Minnesota limited liability company, on behalf of the organization. Notary Public F-3 . . . -~esnlotion06...02 (Con't.) -EXHIBIT B january 17 ,2006 EXHIBIT G GUARANTY FOR VALUABLE CONSIDERATION, and to induce THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF GOLDEN V ALLEY (the "HRA") to extend credit and other accommodations to GVEC PROPERTIES, LLC, a Minnesota limited liability company ("Developer"), the undersigned ("Guarantor"), hereby guarantees to the HRA the full and prompt performance, when due, of all covenants, agreements, and obligations of Developer under the GVEC PROPERTIES, LLC Private Development Agreement dated as of , 2005, and any amendments thereto (the "Development Agreement"). This Guaranty is absolute, unconditional, continuing and irrevocable. This Guaranty is effective upon delivery to the HRA without acceptance by the HRA and without any further act or condition. Guarantor's liability under this Guaranty is joint and several with any other guarantors. Guarantor waives notice, demand and opportunity to cure any default by Developer, and any and all defenses, claims and setoffs of Developer. The liability of Guarantor hereunder shall not be affected by any extensions, renewals, modifications, waivers, or releases granted to Developer, or by any other act or thing other than performance in full by Developer under the Development Agreement. Guarantor shall payor reimburse the HRA for all costs and expenses (including reasonable attorneys' fees and expenses) incurred by the HRA in enforcement of this Guaranty. Guarantor shall not exercise or enforce any right of payment, reimbursement or subrogation available to it against Developer during any period in which there is a default under the Development Agreement. This Guaranty shall be binding upon Guarantor and its successors and assigns and shall inure to the benefit of the HRA and its successors and assigns. This Guaranty may not be waived, modified, tem1inated or otherwise changed except by a writing signed by the HRA. This Guaranty shall be governed by the laws of the State of Minnesota. Any dispute or claim arising under this Guaranty shall be venued exclusively in Minnesota District Court, Hennepin County, and Guarantor hereby consents to the jurisdiction of such court for all such matters. Guarantor also agrees that process may be served on Guarantor by service on any officer of 'Developer, in addition to any other method permitted by law. This Guaranty shall terminate at such time as the Certificate of Completion for Phase Iofthe Improvements has been issued as provided in Section 4.3 of the Development Agreement. Guarantor represents and warrants to the HRA that the personal financial statement he . delivered to the HRA is substantially true and complete as of the date hereof. G-l . . . -~-ftes-01otimr-OO...02 (Can't.) -E7<H1BIT B january 17, 2006 IN WITNESS WHEREOF, Guarantor has caused the execution of this Guaranty this day of , 2006. THIS INSTRUMENT WAS DRAFTED BY: Best & Flanagan LLP 225 South Sixth Street, Suite 4000 Minneapolis, Minnesota 55402-4690 OI]800~60702~]0772_2 G-2