Memo - Developement agreement - Mainstreet Lofts
,
. Planning & Economic
Development
MEMORANDUM
TO: Honorable Mayor Maxwell and Hopkins City Council Members
FROM: Kersten Elverum, ~g Coordinator
DA TE: March 19, 2002
SUBJECT: East CBD Redevelopment Project - Development Agreement
The purpose of the worksession discussion is to familiarize the HRA with the draft
development agreement and identify any concerns the HRA has regarding the terms of
. the agreement. Approval of the development agreement is scheduled for the April 16,
2002. HRA meeting.
OveralL the developer is comfortable with the draft agreement with the exception of the
folloV\'ing:
. Under the agreement, the developer will he responsible for contracting for the
demolition of the existing buildings and relocation of the storm sewer. Those
costs will then be deducted from the purchase price. This issue is complicated
and additional language may be needed to aSSLlre hoth parties that the
responsibilities are clearly detailed in the agreement.
. The agreement calls for a "look back" on the purchase price of the land. The
developer has recommended a split of the profits versus an adjustment on the land
price, This will need to be analyzed with more information [Ivailable at the
worksessioll.
. The developer has indicated a desire to address environmental issues discovered
during demolition and site preparation in a different manner. An agreement has
not been reached regarding this issue.
Attached is the draft of the development agreement for the East Central Business District
(CBD) redevelopment project and a summary outlining the major points of the
agreement. Sid Inman, Ehlers and Associates, and Bob Dieke. Attorney for the HRA.
. will be at the worksession.
. SU~IARY OF PURCHASE AND DEVELOPMENT AGREEMENT
BETWEEN
HOPKINS HOUSING AND REDEVELOPMENT AUTHORITY
AND
MAINSTREET LOFTS, LLC
The following is <1 brief summary of the major terms of the above referenced development
agreement:
1. Redeveloper. The Redeveloper is Mainstreet Lofts, LLC, a Minnesota limited liability
company.
2. Property. The Authority agrees that it will deed the property that it has acquired on the
project site to the Redeveloper. The purchase price to be paid by the Redeveloper ~'ill be
$200,000 but is subject to adjustment as provided in the development agreement.
3. Minimum Improvements. The Redeveloper will construct appruximately 16,000 square
feet of cOlllmercial space and three floors of owner-occupied housing above the commercia]
space. The Minimulll Improvements will be constructed in compliance with plans to be
approved by the Authority and the City.
4. Storm Sewer Relocation. The Redeveloper will contract for the relocation of the storm
. sewer currently located in the public alley running through the property. The Authority will be
responsible for paying the costs of the relocatiun. which will be accomplished by reducing the
purchase paid by the Redeveloper to acquire the property.
S. DemolitionlEnvironmental Remediation. The Authority wiIl be responsible for the
payment of the cost of demolition of the improvements existing on the property and of
eliminating adverse environmental conditions identified in environmental reports obtained by the
Authority. The Authority will pay the costs of such work by either by reducing the purchase
price paid by the Redeveloper or by using other funds of the Authority.
6. Timing of Construction. Subject to excu~ed delays. demolition and site remediation
will be started within 14 days after tbe Authority deeds the property to the Redeveloper and
completed within 8 weeks after commencement. Construction uf the Minimum Improvements
will commence within 1 week after completion of the demolition and remediation.
7. Leasin2 of Retail Component. The Redeveluper agrees that at least 65% of the space in
the commercial portion of the Minimum Improvements will be leased to retail tenants. In
addition. at least ] upscale full serVIce restaurant will be operated 111 the Minimum
Improvements. The Redeveloper agrees that leasing of the commercial space "vill take place in
accordance with the leasing plan provided to the Authority. The Redeveloper's obligations set
forth in the agreement concerning leasing terminate when initial leases have been signed for
0.....- '-, '----- ......
100% of the commercial space. Section 6.2 of the agreement prohibits certain types of L1ses in
the Minimum Improvements.
.
. March 12, 2002
PURCHASE AND
DEVELOPMENT AGREEMENT
By and Between
HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE
CITY OF HOPKINS
. and
MAINSTREET LOFTS, LLC
Dated: .2002
This tlocument was drafted by:
BRADLEY & DEIKE, P. A.
5100 Eden Avenue, Suite 308
Edina, MN 55436
Telephone: (952) 926-5337
.
. TABLE OF CONTENTS
Pa~e
PREAMBLE 1
ARTICLE I
Definitions
Section 1.1. Definitions 2
ARTICLE II
Representations
Section 2.1. Representations by the Authority 4
Section 2.2. Representations by the Redeveloper 4
ARTICLE III
. Conveyance of Property
Section 3.1. Status of Pro pert y 6
Section 3.2. Agreement to Sell 6
Section 3.3. Conditions Precedent to Conveyance 6
Section 3.4. Title 8
Section 3.5. Demolition: Environmental Matters 8
Section 3 .6. Closing~ Taxes 9
Section 3.7. Access to Property 11
Section 3.8. Copies of Reports 10
Section 3.9. Authority Costs 11
ARTICLE IV
Construction of Improvements
Section 4.] . Construction of Minimum Improvements 13
Section 4.2. Construction Plans 13
Section 4.3. Commencement and Completion of Construction 14
. (i)
---- -- --- -- -- -- --
. Section 4.4 Bus Stop Design and Construction 14
Section 4.5. Storm Sewer Relocation 15
ARTICLE V
Insurance
Section 5.]. Insurance 16
AR TICLE VI
Leasing Minimum Improvements
Section 6.]. Leasing of Minimum Improvements 17
Section 6.2. Prohibited Uses 17
ARTICLE VII
Financing
Section 7. l. Financing 18
. Section 7.2. Limitation on Encumbrance of Property 18
Scctlon 7.3. Livable Communities Grant 18
ARTICLE VIn
Prohibitions Against Assignment and Transfer~ Indemnification
Section 8.1. Prohibition Against Transfer of Property and
Assignment of Agreement 19
Section 8.2. Release and Indemnification Covenants 19
ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined 20
Section 9.2. Remedies 011 Default 20
Section 9.3. Revesting of Title in Authority 20
Section 9.4. No Remedy Exclusive 20
. ( ii)
---- --
Section 9.5. No Additional Waiver Implied by
. One Waiver 21
Section 9.6. Effect of Termination of Agreement 21
Section 9.7. Costs of Enforcement 21
ARTICLE X
Additional Provisions
Section 10.1. Representatives Not Individually liable 22
Section 10.2. Restrictions on Use 22
Section 10.3. Provisions Not Merged With Deed 1'1
...."--
Section 10.4. Titles of Articles and Sections 22
Section 10.5. Notices and Demands 22
Section 10.6. Disclaimer of Relationships 22
Section 10.7. Modifications 21
Section 10.8. Counterparts 23
Section 10.9. Judicial Interpretation 23
Section 10.10. Business Subsidy Agreement 23
Section 10.11. Termination 23
SCHEDULE A Description of Redevelopment Property and Expansion Property
SCHEDULE B Sources and Uses
. SCHEDULE C Site Plan
SCHEDULE 0 Design Guidelines and Objectives
SCHEDULE E Business Subsidy Agreement
(ii i)
.
.-- --
PURCHASE AND DEVELOPMENT AGREEMENT
.
THIS AGREEMENT, made OIl or as of the __ day of , 2002, by and
bet\veen the Housing and Redevelopment Authority In and For the City of Hopkins, a public
body corporate and politic (hereinafter refened to as the "Authority"), having its principal office
at 1010 First Street South, Hopkins, Minnesota 55343, and Mainstreet Lofts, LLC, a Minnesota
limited liahility company (hereinafter refened to as the "Redeveloper"). having its principal
office at 7661 Bush Lake Drive, Bloomington, Minnesota 55438.
\VITNESSETH:
\YHEREAS. the Authority was created pursuant to Minnesota Statutes, sections 469.001-
469.047 (the "Act") and was authorized to transact business and exercise its powers by a
resolution of the City Council of the City of Hopkins (the "City") pursuant to the Act: and
'YHEUEAS. the Authority has established \vithin the City its Redevelopment Project No.
1 a "redevelopment project" as defined in the Act, providing for the development amI
redevelopment of certain areas located within the City (which redevelopment project is
hereinafter refelTeu to as the "Project"); and
'YHEREAS, the Authority has acquired certain real property within the Project (which
. real property is refened to herein as the "Redevelopmem Property"); and
WHEREAS. the Redeveloper has presented to the Authority a proposal for the
redevelopment of the Redevelopment Property through the construction of a mixed use
residential and retail development; and
.WHEREAS, pursuant to the Act the Authority is authorized to make its property availahle
for development by private parties but must take measures to insure that development approved
by the Authority in connection with such transfer of property actually occurs; and
'VHEREAS. the Authority and the Redeveloper desire to enter into this Agreement to set
forth the terms under which the Authority will sell the Redevelopment Propcrty to the
Redeveloper and the Redeveloper's obligations to develop such property through the
construction of improvements thereon.
NO\V. THEREFORE, in consideration of the mutual covenants and obligations of the
parties hereto, each of thcm ooes hereby covenant and agree with the other as follows:
-
. ARTICLE I
Definitions
Section 1.1. Definitions. In this Agreement unless a different meaning clearly appears
from the context:
"Act" means Minnesota Statutes. Sections 469.001-469.047. as amended.
"Agreement" means this Agreement, as the same may be froIll time to time modified,
amended. or supplemented.
"Authority" means the Housing and Redevelopment Authority In and For the City of
Hopkins, or any successor or assign.
"Business Subsidy Agreement" means the agreement in the form of Sch~dule E to this
Agrcemenlto be entered into by the Authority and Redeveloper pursuant to Section 10.10.
"City" means the City of Hopkins.
"Construction Plans" means the plans, specifications, drawings and related documents on
tl1e construction work to be performed by the Redeveloper on the Redevelopment Propelty
. which shall be at least as detailed as the plans to be submitted to the building inspector of the
City and shall include such supplemental information as the Authority may require.
"County" means Hennepin County. Milmesota.
"Design Guidelines and Objectives" means the design guidelines and objectives attached
to this Agreement as Schedule D.
"Environmental Assessments" means the phase one environmental assessments obtained
by the Authority concerning the Redevelopment Property and described in Section 3.5 of this
Agreement.
"Event of Default" means an action listed in Section 9.1 of this Agreement.
"Expansion Property"' means the property described as such 011 Schedule A to this
Agreement.
"Holder" means the owner of a Mortgage.
"Minimum Improvements" means the construction by the Redeveloper of approxim<Jtely
16,000 square feet of retail space and three floors of owner-occupied housing above the retail
space. all on the Redevelopment Property together with related and incidental improvements all
in accordance with the Construction Plans.
.
2
--
. "Mortgage" means any mortgage made by the Redeveloper which is secured, in whole or
in part, by the Redevelopment Property and which is a pennitted encumbrance pursuant to the
provisions of Article VIII of this Agreement.
"Permitted Encumbrances" means reservations of minerals or mineral rights to the State of
Minnesota; public utility, roadway and other easements which will not adversely affect the
development and use of the Redevelopment Property pursuant to the Redeveloper.s Construction
Plans; applicable building laws, regulations and ordinances: real estate taxes that Redeveloper
agrees to payor assume pursuant to this Agreement: restrictions, covenants and easements of
record that do not materially adversely affect the development and use of the Minimum
Improvements; exceptions to title to the Redevelopment Property which are not found
objectionable by Redeveloper upon examination of the abstract of title or the title insurance
commitment to be delivered to the Redeveloper pursuant to Section 3.4 of this Agreement: and
the terms and provisions of this Agreement.
"Project" means the Authority's Redevelopment Project No. 1.
"Project Area" means the real property located vvithill the boundaries of the Project.
"Purchase Price" means the amount to be paid by the Redeveloper to acquire the
Redevelopment Property from the Authority as described in Section 3.2 of this Agreement.
. "Redeveloper" means Mainstreet Lofts, LLC. a Minnesota limited liability company, its
sm:cessors and assigns.
"Redevelopment Property" means the real property described in Schedule A of this
Agreement.
"Site Plan" means the preliminary Site Plan attached to this Agreement as Schedule C.
which shows the proposed location and elevations of the Minimum Improvements.
"State" means the State of Minnesota.
"Unavoidable Delays" means delays which are the direct result of acts of God. unforeseen
adverse weather conditions, strikes, other labor troubles, fire or other casualty to the Minimum
Improvements. litigation commenced by third parties which, by injunction or other similar
judicial action, directly results in delays, or acls of any federal, state or local governmental unit
(other than the Authority in enforcing its rights under this Agreement) which directly result in
deb ys.
.
:;
. ARTICLE II
Representations
Section 2.1. Representations by the Authority. The Authority makes the fol1ovv'ing
representations as the basis for the undertaking on its part herein contained:
(n) The Authority is a municipal housing and redevelopment authority organized and
existing under the Act. Under the laws of the State, the Authority has the power to enter into this
Agreement and to perform its obligations hereunder.
(b) The Redevelopment Property is directly accessible to city sewer and water.
(c) To the best of the Authority's knowledge and belief, at the time of execution by the
Authority of this Agreement, there are no environmental proceedings, applications. ordinances,
petitions, court pleadings. resolutions, investigations by public or private agencies, or other
matter pending which could prohibit, impede, delay or adversely effect the use of the
Redevelopment Property.
(d) To the best of the Authority's knowledge and belief, no investigation,
administrative order, consent order or agreement, litigation, or settlement with respect to
. hazardous substances is proposed. threatened, anticipated or in existence with respect to the
Redevelopment Property.
(e) There is not pending, nor to the best of the Authority's knowledge is there
threatened, any suit, action or proceeding against the Authority before any court, arbitrator,
administrative agency or other governmental authority that materially and adversely affects the
validity of any of the transactions contemplated hereby, the ability of the Authority to perform its
obligations hereunder, or as contemplated hereby or thereby, or the validity or enforceability of
this Agreement.
(f) To the Authority's best knowledge. except as disclosed in the Environmental
Assessments defined in Section 3 .5( a), there are no underground tanks located on the
Redevelopment Property.
(g) There are no purchase agreements, leases or other permanent occupancy
agreements affecting the Redevelopment Property with any person other than the Redeveloper.
and the Authority will not enter into uny sllch agreements.
(h) Except as disclosed in the Environmental Assessments defined in Section 3.5(a).
the Authority has no actual knowledge of the use of any hazardous substances OIl, under, or in
the Redevelopment Property.
Section 2.2. Representations by the Redeveloper. The Redeveloper represents that:
.
4
. (a) The Redeveloper is a limited liability company duly organized and in good
standing under the laws of the State. is not in violation of any provisions of its articles of
organization, member control agreement, if any, operating agreement. bylaws or the laws of the
State, has power to enter into this Agreement and has duly authorized the execution. delivery and
performance of this Agreement by proper action of its govel11ors.
(b) The Redeveloper will construct the Minimum Improvements in accordance with
the terms of this Agreement and all local, state and federal laws and regulntions (including, but
not limited to. environmental. engineering, zoning, building code and public health laws and
regulations). except for variances necessary to construct the improvements contemplated in the
Construction Plans approved by the Authority.
(c) Neither the execution and delivery of this Agreement. the consummation of the
transactions contemplated hereby. nor the fulfillment of or compliance with the terms and
conditions of this Agreement is prevented. limited by or conflicts with or results in a breach of.
the terms. conditions or provisions of any restriction or any evidences of indebtedness,
agreement or instrument of whatever nature to which the Redeveloper is now a party or by which
it is bound. or constitutes a default under any of the foregoing.
All representations set forth in Section 2.1 and 2.2. of this Agreement shall be true and COlTect in
all material respects as of the date of closing on conveyance of the Redevelopment Property to
the Redeveloper.
.
.
.5
,_.. __m
. ARTICLE III
Conveyance of Propertv
Section 3.1. Status of Property. The Authority has acquired the Redevelopment Property
for the purpose of selling it to a private developer for redevelopment. The Redeveloper
submitted a proposal to the Authority in which the Redeveloper agreed to redevelop the
Redevelopment Property through the construction of the Minimum Improvements. Subject to
the terms and provIsIons of this Agreement. the Authority proposes to convey the
Redevelopment Property to the Redeveloper.
3.2 Agreement to Sell. (a) In consideration of the covenants hereinafter set forth and
otber valuable consideration. the sufficiency of which is hereby acknowledged. the Authority
agrees to sell and the Redeveloper agrees to buy the Redevelopment Property.
(b) The Purchase Price to be paid by the Redeveloper to acquire the Redevelopment
Property shall be Doll::lrS ($ ), payable in cash or by
certified check at the time of the conveyance of the Redevelopment Property to the Redeveloper.
Based 011 a preliminary sources and uses statement dated . 2001, the Authority and
Redeveloper have agreed that this is the maximum amount that the Redeveloper can pay for the
Redevelopment Propeliy without rendering the Redeveloper's development financially
unfeasible. The sources and uses statement is expected to change as the Redeveloper further
. refines its plans for the Minimum Improvements. Also, the Authority may require changes in the
sources and uses statement. As the sources and uses statement changes the Purchase Price may
be increased. Within (_) days after the Redeveloper receives a certificate of
occupancy for the Minimum Improvements, the Redeveloper will fumish to the Authority a final
swom construction statement signed by Redeveloper's general contractor cCItifying the final
construction costs and a certificate signed by its architect certifying in such detail as the
Authority may reasonably request the final costs incurred by the Redeveloper. To the extent that
the Redeveloper's final total cost of acquiring and constructing the Minimum Improvements is
less than the amollnt shown on the final sources and llses statement agreed to by the Authority
and the Redeveloper, the Purchase Price will be increased by such amount and shall be payable
to the Authority \vithin (_) days after such determination is made. (This
provision is subject to change based on input from Sid)
Section 3.3. Conditions Precedent to Conveyance. The Authority's obligation to convey
tbe Rectevelopmcnt Property to the Redeveloper and the Redeveloper's obligation to purchase
the Redevelopment Property shall be subject to satisfaction of all of the following conditions
precedent:
(a) The Redeveloper having obtained the requisite approval of the Authority hereunder
and all applicable governmental agencies and instrumentalities, municipal, county. state and
federal, to the development of the Redevelopment Property through the construction of the
Minimum Improvements 111 accordance with the Redeveloper's de ve I apment plans and
. Construction Plans.
6
. (b) The Redeveloper having obtained the following to the extent required: (i)
amendments, revisions, exceptions or changes as may be necessary to applicable zoning codes
and ordinances; (ii) conditional use permit approval from the City, including the execution of a
conditional use permit agreement between the City and the Redeveloper, (iii) building permits
for the Minimum Improvements: (iv) approval of the vacation of the portion of the public alley
that is a part of the Redevelopment Property, which vacation shall be coordinated by the
Redeveloper with affected private utility owners: (v) roadway access rights and permits; (vi)
environmental consents, if necessary: (vii) approval of the replatting of the Redevelopment
Property; and (viii) all other governmental approvals that are necessary in order to allow the
construction and operation of the Minimum Improvements in accordance with the Redeveloper's
Construction Plans.
(c) The Redeveloper having reviewed and approved, or waived any objections to, title
to the Redevelopment Property pursuant to Section 3.4 of this Agreement.
(d) Redeveloper having secured construction and permanent mortgage loan financing
sufficient for the acquisition of the Redevelopment Property and construction of the Minimum
Improvements.
(e) The Redeveloper having satisfied itself that the actions taken to remediate the
adverse environmental conditions identified on the Redevelopment Property pursuant to Section
. 3.5 of this Agreement are sufficient.
(f) The Redeveloper having satisfied itself that the soil conditions the
on
Redevelopment Property are acceptable for its purposes.
(g) The Redevelopment Property having been vacated by all tenants currently
occupying portions of the Redevelopment Property, the relocation of which tenants and the
payment of all costs thereof shall be the responsibility of the Authority.
(h) The Authority and the Redeveloper having reached agreement on the final project
proforma as described in Section 3.2.
(i) The Redeveloper having entered into contracts with contractors for the demolition
and storm sewer relocation work to be done by the Redeveloper pursuant to Sections 3.5 and .:1-.5
of this Agreement.
In the event that the above conditions precedent have not been satisfied, or waived in writing by
both the Authority amI Redeveloper, within ( ) days after the date of
this Agreement, either the Authority or Redeveloper may terminate this Agreement by giving
written notice of termination to the other party, whereupon this Agreement shall be null and void
and the Redeveloper and Authority shall execute an instrument in recordable form canceling this
Agreement. Approval by the Authority or City of any documents submitted to it by the
Redeveloper to satisfy the conditions precedent stated in this Agreement and the determination tn
. proceed with the conveyance oC the Redevelopment Property shall be in the sole discretion of the
7
. City and the Authority, respectively; provided that if any documents submitted to the Authority
or City are rejected the Redeveloper shall be given a reasonable amount of time to cure the basis
for the rejection and resubmit the documents.
3.4 Title. The Authority shall, \\'ithin a reasonable time after the date hereof, furnish to
the Redeveloper an updated abstract of title or. at the Authority's option. a commitment for an
Owner's Policy of Title Insurance with copies of all exceptions or conditions referred to therein.
If a commitment is issued such commitment shall be issueu by in the
full amount of the purchase price to be paid by the Redeveloper hereunder and shall:
(a) set forth the state of title to the Redevelopment Property together with a11 exceptions
and conditions to title, including without limitation, all easements, restrictions. rights
of way. covenants, reservations, consents and all other encumbrances affecting the
Reclevelopment Property which would appear 111 the American Land Title
Association C"AL T A'') Owner's 1992 Standard Form title insurance policy to be
issued at the time of conveyance of the Redevelopment Property;
(b) include searches covering bankruptcy and state and federal judgments and liens;
and
(c) waive or insure against facts which would be disclosed by a comprehensive survey
of the Redevelopment Property, rights and claims of parties in possession, and
. mechanic's and materialmen's liens and lien claims.
The Redeveloper shall be allowed thifty (30) days after receipt thereof for examination of said
title and the making of any objections thereto. Such objections shall be made in writing or shall
be deemed wai ved. If any objections arc so made. the Authority shall be allowed ninety (90)
days from notice thereof to cure or cause to be cured by the City the title defect or exception.
either by the removal thereof or by the procurement of title insurance endorsements satisfactory
to Redeveloper providing coverage against loss or damage as a result of such defect or exception.
If t]le Authority does not cure or cause to be cured such title defect or exception to Redeveloper's
satisfaction within said ninety (90) days. the Redevelopcr may, at its option, eithcr (i) terminate
the Agreement upon written notice to the Authority upon which this Agreement shall be null and
void and the Redeveloper and the Authority shall execute an instrument in recordable form
canceling this Agreement; or (ii) proceed with the closing on the purchase of the Redevelopment
Property. in which case a portion of the Purchase Price estimated by the title company issuing
the above referenced title insurance commitment as necessary to cure the title defect shall be
held in escrow by the title company to pay the cost of curing the defect. If the ReJeveloper
proceeds to acquire the Redevelopment Property. the Authority shall have no further obligations
with respect to any such defects or exceptions.
If the Authority has fumished the Redeveloper with a title commitment. ten (10) days prior to
closing on the conveyance of the Redevelopment Property to the Redeveloper the Authority shall
cause an updated title commitment to be fumished to the Redeveloper.
.
:..;
. Within a reasonable time after the date of this Agreement and again at the time of the
conveyance of the Redevelopment Property to the Redeveloper, the Authority will fumish to the
Redeveloper such survey information that the Authority has in its possession concerning the
Redevelopment Property. To the extent that the Redeveloper desires an additional survey it will
be responsible for obtaining it.
Section 3.5 Demolition: Environmental Matters. (a) The Redeveloper agrees that it will
undertuke the demolition of the improvements currently located on the Redevelopment Property.
In addition. the Authority has secured phase one environmental assessments (the "Environmental
Assessments") covering the Redevelopment Property. Such assessments are dated as of
and were prepared by The Redeveloper
agrees to contract to remediate the adverse environmental conditions identified in the
Environmental Assessments.
(b) The Redeveloper agrees that the actual demolition of structures and the
environmental remediation will be done under contracts entered into by the Redeveloper. Such
contracts shull be subject to approval by the Authority's staff and shall be let under a bidding
process approved by the Authority's staff. In addition, any contracts between the Redeveloper
and consultants relating to such activities shall be subject to approval by the Authority. The
Authority shall cause to be prepared specifications for the demolition and environmental
remediation of the Property and shall provide such specifications to the Redeveloper by June 7.
2002. Such specifications shall serve as the basis for the bidding on the work by contractors.
. (c) The Authority agrees the costs of demolition and environmental remediation will
be covered by the Authority's reduction of the Purchase Price paid hy the Redeveloper to acquire
the Redevelopment Property. The Redeveloper shall submit to the Authority invoices and proof
of payment shov.;ing the amounts paid by the Redeveloper to consultants and contractors for
demolition and remediation and the Authority will reimburse the Redeveloper for such costs.
The manner of reimbursement shall be through the return to the Redeveloper of an amount of the
Purchase Price equal to the costs incuned. If the costs to be reimbursed when added to the costs
reimbursed under Section 4.5 exceed the Purchase Price, then the Authority shall reimburse slIch
costs using its own funds. The only costs eligible for reimbursement are costs incuITed for work
described ill the plans and specifications approved by the Authority, which approval shall not be
unreasonably withheld. The Authority shall have no responsibility to reimlmrse the Redeveloper
for any costs related to the installation of a retaining \vall or other retention system necessary as a
result of the removal of underground improvements on the Redevelopment Property or the cost
to remedy any damages to public or other improvements resulting from such removal of
underground improvements. Such costs. if any, shall be borne by the Redeveloper.
(d) In the event that during the demolition or excavation of the Redevelopment
Property the Redeveloper or its contractors discover additiona.l ::ldverse environmental conditions
not disclosed in the Environmental Assessments, the Redeveloper will notify the Authority of
such discovery. The Authority a.nd the Redeveloper shall then meet to negotiate the course of
action to be taken to remedy such additional environmental problems and the responsibility for
the cost of such action. If the Authority and Redeveloper are unable to agree on a course of
. action or on who will pay the additional costs within (~) days after discovery of
11
. the condition either party may terminate t11is Agreement. upon which this Agreement shall be
null and void, the Redevelopment Properly shall be conveyed back to the Authority free of all
defects and encumhrances (other than those to which the Redevelopment Property was subject at
the time that it was conveyed to the Redeveloper). the Purchase Price shall be returned to the
Redeveloper and the Redeveloper and the Authority shall execute an instrument in recordable
form canceling this Agreement.
(e) If the Redeveloper and its contractors undertake the environmcntal remediation of
the Redevelopment Property in accordance with applicable laws and regulations and in
accordance with the plans and specifications approved by the Authority, the Authority agrees to
indemnify, defend and hold harmless the Redeveloper, its officers and employees from and
against any and all claims, actions or damages arising out of its actions taken under this section
to remediate those adverse environmental conditions described 111 the Environmental
Assessments.
Section 3.6 Closing; taxes. (a) Closing on the conveyance of the Redevelopment Property
to the Redeveloper shall occur on or before ten (10) business days after satisfaction, or waiver. of
all oUhe conditions precedent set forth in Section 3.3 of this Agreement.
(b) At closing on conveyance of the Redevelopment Property, the Authority shall
deliver to the Redeveloper: (i) a quit claim deed duly executed and acknowledged, in recordable
form, conveying to the Redeveloper marketable title to the RedevcIopment Property subject only
. to Permitted Encumbrances and containing the reversionary clause described in Section 9.3 of
this Agreement; (ii) the abstract or title insurance polky described in Section 3.4 (the premium
for which shall be paid by Redeveloper, the costs of obtaining the commitment for which shall
be paid by the Authority): and (iii) a Seller's Affidavit. in customary form, relative to judgments.
federal tax liens, mechanic's liens and outstanding interests in the Redevelopment Property.
(c) At the time of conveyance of the Redevelopment Property. the Redcveloper shall
deliver to the Authority the Purchase Price in the maimer set forth in Section 3.2 of this
Agreement .
(d) Real estate taxes due and payable in the year of closing shall be apportioned
between the Redeveloper and the Authority as of the date of elosing on the conveyance of the
Redevelopment Property. with the result that the Authority shall pay that portion of such taxes
attributahlc to the period of the year prior to the conveyance and the Redeveloper shall pay that
portion of the taxes attributable to the period of time commencing \\'ith the dale of conveyance.
Real estate taxes and assessments due ancl payable in the year 2001 and all prior years and
deferred real estate taxes (i.e. Green Acres), if any. shall be paid by the Authorily. All levied and
unpaid special assessments shall be paid by the Authority.
Section 3.7 Access to Property. During the tcrm of this Agreement, the Redeveloper and its
authorized representatives shall, upon reasonable prior notice to the Authority. be permitted
access to the Redevelopment Property at reasonable times for the purpose of ardlitectural
inspection and design studies, the preparation of a survey. and the taking of SUdl soil borings and
. en vi ron mental assessments as are deemeu reasOlwbly necessary by Redeveloper. The
10
.-
. Redeveloper shall also have the right to erect and operate a sales trailer on the Redevelopment
Property in a location approved by the Authority, which approval shall not be unreasonahly
withheld. The Redeveloper hereby agrees to indemnify, defend, anu hold harmless the
Authority, its officers. agents. employees and conunissioners from and against any and all
damage to property or injury to person arising out of the Redeveloper's exercise of its right of
access to the Redevelopment Property under this Section. The Redeveloper shall be entitled to
actual possession of the Redevelopment Property on the date of closing on conveyance of the
Redevelopment Property to the Redeveloper. Except as expressly stated herein, the Authority
makes no representations whatsoever as to the conclition of the Redevelopment Property or the
soils thereon or that the same is suituble for the Redeveloper" s proposed development. If the
Redeveloper determines to proceed with its acquisition of the Redevelopment Property it will
buy such property "as is" and, except for the Authority covenants and obligations in Section 3.5.
the Authority shall have no liability to the Redeveloper on account of any defects with respect
thereto.
Section 3.8. Copies of Reports. The Redeveloper shall furnish to the Authority. at no
cost to the AutlJority. copies of all reports, assessments. studies, surveys and other
documentation prepared OIl behalf of the Redeveloper in connection with its proposed acquisition
of the Redevelopment Property.
Section 3,9. Authority Costs. In consideration for the Authority's covenants and
undertakings under this Agreement, the Redeveloper agrees that it will pay all out-of-pocket
. costs incurred by the Authority or City. including. without limiwtion, all fees owed to the
Authority's or City's traffic, development. fiscaL environmental and other consultants, and all
attorneys' fees incurred by the Authority or City in connection with the negotiation anu
preparalion of this Agreement, the conditional use permit agreement referenced in Section 4.2(c).
and all relatecl documents. or in enforcing the Redeveloper's obligations to pay costs which it is
obligated to pay under this Agreement. The Redeveloper shall not be responsible to pay the
Authority's costs incurred in connection with the Authority's acquisition of the Redevelopment
Properly. All of the Authority's and City's attomeys and consultants shall be under contract with
the Authority or City. unless the Authority or City otherwise agree in writing. The Authority
will provide to the Redeveloper requests for payment of the costs incurred by the Authority or
the City from time to time accompanied by statements or invoices documenting sllch costs. Such
costs shall be payable by the Redeveloper to the Authority within thirty days after request by the
Authority; provided, that $20,000 is the maximum amounL of such costs that the Redeveloper
will be required to pay prior to the Redeveloper's closing on its financing for construction of the
Minimum Improvements. Any costs in excess of $20.000 shall be payable by the Redeveloper to
the Authority at the time the Redeveloper closes on its fin:mcing for the Minimum Improvements
or, if this Agreement terminates before the Redeveloper closes on its financing, at the time of
sLlch termination. The Redevelope{s obligations under this Section shall survive termination of
this Agreement to the extent costs were incurred prior to the date of termination or to the extent
that costs are incurred to enforce the Redeveloper's obligations under this Section.
Prior to incurring costs subject to payment or reimbursement by the Redeveloper under this
Section. the Authority will llse its best efforts to obtain proposals from its consultants and
. attorneys describing the hourly rate or other basis on which the costs will be incuned and an
11
. estimate of the costs to be incurred. A failure to obtain such proposals or the exceeding of the
cost estimates shall not relieve the Redeveloper of its obligation to pay the costs incurred.
To the extent not paid as of the date hereof, the Redeveloper shall remain obligated to pay
or reimburse the Authority and City for costs for which the Redeveloper was obligated under that
certain Preliminary Development Agreement between the Authority and the Redeveloper dated
as of November 7, 2001 .
Section 3.10. Expansion Property. The Redeveloper is negotiating with the owner of the
Expansion Property concerning the Redeveloper's acquisition of all or a portion of such
property. If the Redeveloper is able to negotiate a purchase agreement to acquire the Expansion
Property or a portion thereof the Authority agrees that it will meet with the Redeveloper to
discuss the integration of such property into the development contemplated by this Agreement.
.
.
12
. ARTICLE IV
Construction of Improvements
Section 4.1. Construction of Minimum Improvements. The Redeveloper agrees that it will
construct the Minimum Improvements on the Redevelopment Property in accordance with the
approved Construction Plans and wi]] operate and maintain, preserve and keep the Minimum
Improvements or cause the Minimum Improvements to be maintained, preserveu and kept with
the appurtenances and every part and parcel thereof. in good repair and condition.
Section 4.2. Construction Plans. (a) The Authority's willingness to convey the
Redevelopment Property to the Redeveloper is predicated upon and subject to the Redeveloper's
agreement that it will construct the Minimum Improvements and that the Minimum
Improvements will be of such quality and nature as will satisfy the Authority's and City's goals
for the redevelopment of the Redevelopment Property. Attached to this Agreement is the Site
Plan that has been submitted to the City and the Authority showing the general nature and
location of the Minimum Improvements. The Site Plan has not been finally approved by the City
or the Authority and is subject to change. On or before ,2002, the Redeveloper
shall submit to the City and the Authority applications, together with supporting documentation,
for conditional use permit. alley vacation, und variance approvals and a preliminary and final plat
of the Redevelopment Property. If the Redeveloper fails to provide such information by such
date this Agreement shall be terminable by the Authority in the manner described in the last
. paragraph of Section 3.3.
(b) The Redeveloper understands that as a part of the City's conditional use permit
process the Redeveloper wil1 be required to enter into a conditional use permit agreement
detailing the manner in which the Redeveloper will CUlTY out certain aspects of the construction
of the Minimum Improvements and the storm sewer relocation described in Section 4.5.
(c) Within a period of time that will allow the Redeveloper to satisfy the condition
contained in Section 3.3(a), taking into account the time necessary for review by the Authority,
the Redeveloper shall provide to the Authority and the City for their review and approval
Construction Plans for the Minimum Improvements and documentation necessary to obtain all
other approvals that must be obtained prior to the construction and operation of the Minimum
Improvements. The Construction Plans and other documentation shall provide for the
construction of the Minimum Improvements and shall be in conformity with this Agreement, and
all applicable state and local laws and regulations. The Authority shall approve the Construction
Plans and other documentation in writing if. in the sole discretion of the Authority, the proposed
Minimum Improvements, including the building materials proposed to be used, are of such a
nature and quality as to justify the Authority's conveyance of the Redevelopment Property and if
they are consistent with the provisions of this Agreement. Such Construction Plans and other
documentation shall. in any event, be deemed approved by the Authority, but not the City. lInless
rcj ected in writing by the Authority, in whole or in part within thirty (30) days after the date of
their receipt by the Authority.
.
13
. (d) The Redeveloper shall design the streetscape improveml.::nts to be constructed as a
part of the Minimum Improvements so that they are consistent and compatible with the
streets cape theme used in that area of the City's downtown area along Eighth A venue South and
Main Street. The design of the streetscape improvements are subject to approval by the
Authority as part of the Construction Plans.
(e) All construction documents to be provided by the Redeveloper under this section
shall comply with the Design Guidelines and Objectives. The Redeveloper shall consult with the
owner of the Expansion Property in the process of designing the Minimum Improvements.
(f) Nothing in this Agreement shall be deemed to relieve the Redeveloper of its
obligation to comply with the requirements of the City's normal construction permitting process.
(g) If the Redeveloper desires to make any material change in any Construction Plans
after their approval by the Authority. the Redeveloper shall submit the proposed change to the
Authority for its approval. If the Construction Plans, as modified by the proposed change.
conform to the requirements of this Agreement and such changes do not materially alter the
nature, quality or exterior appearance of the Minimum Improvements, the Authority shall
approve the proposed change and notify the Redeveloper in writing of its approval. Any
requested change in the Construction Plans shalL in any event, be deemed approved by the
Authority unless rejected, in whole or in part, by written notice by the Authority to the
Redeveloper, setting forth in detail the reasons therefor. Such rejection shall he made within ten
. (10) days after receipt of the notice of such change.
Section 4.3. Commencement and Completion of Construction. Subject to Unavoidable
Delays. the Redeveloper shall COlllmence the demolition activities and storm sewer relocation
described 111 Sections 3.5 and 4.5 within fourteen (14) days after conveyance of the
Redevelopment Property to Redeveloper and shall complete such demolition and storm sewer
relocation within eight (8) weeks after commencement. Subject to Unavoidable Delays. the
Redeveloper shall commence constrLlction of the Minimum Improvements within seven (7) days
after completion of the demolition and storm sewer removal and complete such construction
within (~) after commencement of construction.
The Redeveloper agrees that it shall promptly begin and diligently prosecute to completion
construction of the Minimum Improvements within the periods specified in this Section 4.3 of
this Agreement. Until construction of the Minimum Improvements has been completed, the
Redeveloper shall make construction progress reports, at sLlch times as may reasonably be
requested by the Authority as to the actual progress of the Redeveloper with respect to such
construction.
Section 4.4. Bus Stop Design and Construction. The City has received grant funds in the
amount of $21,250 from the Metropolitan Council to be used for the construction of a bus stop
adjacent to the Redevelopment Property. The Redeveloper shall at its cost prepare and submit to
the Authority and City a design for the bus stop that is consistent with the design of the
Minimum Improvements and the streetscape throughout the downtown area. After approval of
. the design by the City and the Authority, the Redeveloper will enter into a contract for the
14
. construction of the bus stop. The bidding process and contract are subject to the approval of the
City and Authority. The Authority will use grant funds from the City in an amount up to
$21,250 to reimburse the Redeveloper for the cost of the bus stop design and constmction. The
City and Authority shall be entitled at no cost to use such design plans in constructing any
additional bus stops in the City that may be constructed in the future. The use of the grant funds
shall be limited by and subject to the provisions of grant agreement between the City and the
Metropolitan CounciL which agreement is incorporated herein and made a part of this
Agreement by reference.
Section 4.5. Storm Sewer Relocation. The construction of the Minimum Improvements
will necessitate the relocation of a City storm sewer cuncntly located in the alley that is to be
vacated which runs through the Redevelopment Property. The Redeveloper agrees that it will
secure bids and contract to have the st01111 sewer relocated. Such relocation will be done in
accordance with plans and specifications to be prepared under the direction of the City. The
plans and specifications will be submitted to the Redeveloper by June 15, 2002. The contract for
such work will be awarded pursuant to a bidding process approved hy the Authority and City.
The Authority will be responsible for the cost of the storm sewer relocation and will reimburs~
the Redeveloper by returning amounts of the Purchase Price equal to the documented design and
construction costs incurred by the Redeveloper directly relateu exclusively to the storm se\ver
relocation. If the such costs exceed the Purchase Price, then the Authority will reimburse the
Redeveloper for such costs out of its O\\ln funds. The Purchase Price wil1 be reduced under this
section to reimburse the Redeveloper for the storm sev.,1er relocation costs prior to reducing the
Purchase Price to reimburse for costs under Section 3.5. The Authority shall have no
. responsibility for the costs of relocating private utilities necessary as a result of the vacation of
the alley in which the storm sewer is cunently located or as a result of the storm sewer
relocation.
.
15
. ARTICLE V
Insurance
Section 5.1. Insurance.
(a) The Redeveloper will provide and maintain at all times during the process of
constructing the Minimum Improvements and, from time to time at the request of the Authority,
furnish the Authority with proof of payment of premiums on:
(i) Builder's risk insurance, written on the so-called "Builder's Risk n Completed
Value Basis," in an amount equal to one hundred percent (100%) of the insurable value of
the Minimum Improvements at the date of completion, and \vith coverage available in
nonreporting form on tlle so called "all risk" form of po1icy~ and
(ii) Comprehensive general liabil ity 1l1surance ( including operations, contingent
liability, operations of subcontractors. completed operations, Broadening Endorsement
including contractual liability insurance) together with an Owner's Contractor's Policy with
limits against bodily iruury and property damage of not le~s than $2,000,000 for each
occurrence (to accomplish the above-required limits, an umbrella excess liability policy
may be used); and
. (iii) Worker's compensation insurance, \\lith statutory coverage and employer's liability
protection.
The policies of insurance requireu pursuant to clauses (i) and (ii) above shall be in form and
content satisfactory to the Authority and shall be placed with financially sound and reputable
insurers licensed to transact business in the State, the liability insurer to be rated A or better in
Best's Insurance Guide. The policies of insurance delivered pursuant to clause (i) and (ii) above
shall contain an agreement of the insurer to give not less than thirty (30) days' advance written
notice to the Authority in the event of cancellation of such policy or change affecting the
coverage thereunder. The Authority shall be named as an additional insured on the liability
policy obtained pursuant to clause Oi) above.
.
]6
. ARTICLE VI
Leasing Minimum Improvements
Section 6.1. LeasinQ of Minimum Improvements. The Redeveloper has submitted to the
Authority a description of the guidelines and process that the Redeveloper will follow in leasing
the retail/commercial portion of the Development. The Redeveloper acknowledges that the types
of tenants in the Minimum Improvements is extremely important to the City and the Authority.
The Authority acknowledges that market forces will dictate to a large degree the types of tenants
that will be willing to lease space in the Minimum Improvements. The description of guidelines
and process provided by the Redeveloper was intended to demonstrate how the Redeveloper will
try to achieve the Authority's goals for the leasing of the Minimum Improvements. The
Authority \vould like a mix of tenants and uses that will draw customers not only from the City
but from outside of the City. The Redeveloper agrees that it will make every effort to secure
retail tenants whose businesses are complementary, as opposed to competitive, to each other and
to other businesses located in the immediate downtown area.. The Redeveloper agrees that at
least 65% of the space will be leased to retail, as opposed to service oriented, businesses. At
least one upscale full service restaurant with 11 full liquor license offering printed menus, wait
staff and with evening hours of operation will be included. The Redeveloper agrees that it will
provide the Authority written monthly reports on or before the first day of each month as to the
status of its efforts to lease the Minimum Improvements. When the Redeveloper has entered into
leases for one hundred percent (100%) of the commercial space in the Minimum Improvements
. the Redeveloper shall certify that fact to the Authority in a writing listing all of the commercial
tenants in the Minimum Improvements. At that time the Redeveloper's obligations under this
section shall terminate.
Section 6.2. Prohibited Uses. The Redeveloper agrees that Redevelopment Property and
Minimum Improvements, or any portion thereof, shall not be used for the any of the following
uses: adult establishment, adult motion picture theater, mlult novelty business or bookstore,
amusement devise establishment, aula sales and\or lease, cabinet, electricaL heating, plumbing,
upholstery or air conditioning sales or service shop, fix-it shop, liquor store, open sales lot, pawn
shop, drive-thru restaurant, auto repair, warehouse, taxi terminal or tattoo parlor. If the above
terms are defined in the City's zoning ordinances, the terms shall have the meaning contained
therein.
.
17
~---
. ARTICLE VII
Financin~
Section 7.1. Financing. Prior to the Authority's conveyance of the Redevelopment
Property to the Redeveloper, the Redeveloper shall submit to the Authority evidence, satisfactory
to the Authority, that the Redeveloper has ohtained mortgage or other construction and
permanent financing in an amount sufficient to pay the cost of acquiring the Redevelopment
Property and constructing the Minimum Improvements.
Section 7.2. Limitation Upon Encumbrance of Property. Prior to the completion of the
Minimum Improvements, as certified by the Authority, neither the Redeveloper nor any
successor in interest to the Redevelopment Property, or any part thereof, shall engage in any
financing or any other transaction creating any mortgage or other encumbrance or lien upon the
Redevelopment Property, whether by express agreement or operation of law, or suffer any
encumbrance or lien to be made on or attach to the Redevelopment Prope11y, except for the
purposes of obtaining funds only to the extent necessary for acquiring and constructing the
Minimum Improvements without the prior written approval of the Authority.
Section 7.3. Livable Communities Grant. The City has been awarded a Livable
Communities Grant in the amount of $621,250 from the Metropolitan Council to be used to
redevelop the Redevelopment Property. $200,000 of such funds will be used finance a portion of
. the Authority's costs of acquiring the Redevelopment Property and $21.250 will be Llsed to pay
the cost of the bus stop construction described in Section 4.4. $300,000 of such grant 'vvill be
available to reimburse the Redeveloper for the cost of structured parking to serve the Minimum
Improvements. The final $100,000 available to reimburse the Redeveloper for the following
architectural enhancements to the Minimum Improvements:
The Redeveloper's right to receive such funds is conditioned on the Redeveloper's compliance
with all terms of the grant agreement between the City and the Metropolitan Council, including.
without limitation, the proper documentation that the costs for which it is seeking reimbursement
have been incuned. The Reueveloper will provide all information required by the Metropolitan
Council relating to Redeveloper's use of the grant funds.
.
18
. ARTICLE VIII
Prohibitions Against Assi2.nment and Transfer. Indemnification
Section 8.1. Prohibition Agninst Trnnsfer of Property and Assignment of Agreement The
Redeveloper represents and agrees that prior to completion of construction of the Minimum
Improvements, except only by way of security for, and only for, the purpose of obtaining
financing necessary to enable the Redeveloper or any successor in interest to the Redevelopment
Property, or any part tbereof, to perform its obligations with respect to constructing the
Minimum Improvements under this Agreement, and any other purpose authorized by this
Agreement, the Redeveloper (except as so authorized) has not made or created, and will not
make or create, or suffer to be made or created, any total or partial sale, assignment, conveyance,
or lease. or any trust or PO\\rel'. or transfer in any other mode or form of or with respect to this
Agreement or the Redevelopment Property or any part thereof or any interest herein or therein,
or any contract or agreement to do any of the same, without the prior written approval of the
Authority.
The foregoing shall not preclude the Redeveloper from entering into purchase agreements
\vith individual purchasers of the residential units in the Minimum Improvements or leases with
tenants in t:he retail portion of the Minimum Improvements. Upon each sale of a residential unit
in the Minimum Improvements to an individual purchaser. upon request by the Redeveloper the
Authority will fumish the Redeveloper with a certificate stating that the provisions of this
. Agreement and the deed conveying the Redevelopment Property to the Redeveloper arc
terminated as they relate to the unit conveyed.
In the absence of specific written agreement by the Authority to the contrary, no such
transfer or approval thereof by the Authority shall be deemed to relieve the Redeveloper, or any
other party bound in any way by this Agreement from any of its obligations hereunder.
Section 8.2. Release and Indemnification Covenants. (a) The Redeveloper releases ii'om
and covenants and agrees that the Authority and the governing body members, officers, agents,
servants and employees thereof shall not be liable for and agrees to indenmify and hold harmless
the Authority and the governing body members, officers, agents. servants and employees thereof
against any loss or damage to property or any injury to or death of any person occurring at or
about or resulting from any defect in the Minimum Improvements.
(b) Except for any willful misrepresentation or any willful or wanton misconduct of the
following named parties. the Redeveloper agrees to protect and defend the Authority and the
Authority and the governing body members, officers. agents. servants and employees thereof.
now or forever, amI further agrees to hold the aforesaid harmless from any claim, demand. suit.
action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly
arising from this Agreement, or the transactions contemplated hereby or the acquisition,
construction, installation. ownership, and operation of the Minimum Improvements.
.
19
----- -- - -
----
. ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined. The term "Event of Default" shall mean, whenever
it is Llsed in this Agreement (unless the context otherwise provides); (i) any failure by the
Authority or the Redeveloper to substantially observe or perform any material covenant,
condition, obligation or agreement on its part to be observed or performed hereunder or (ii) a
material breach of any representation set forth herein on or prior to the closing on conveyance of
the Redevelopment Property.
Section 9.2. Remedies on Default. Whenever any Event of Default occurs, the 11011-
defaulting party may immediately sllspend its performance under this Agreement and may take
anyone or marc of the following actions after providing thirty (30) days written notice to the
other party of the Event of Default, but only if the Event of Default has not been cured within
said thirty (30) clays or, if the Event of Default is by its nature incurable within said thirty (0)
days, the defaulting party has not provided reasonable assurances to the non -defaulting party that
the Event of Default will be cured and that it will be cured as soon as reasonably possible:
(n) Terminate this Agreement.
(b) Toke \:vhatever action, including legol, equitable or administrative action, which
. may appear necessary or desirable to collect any payments due under this Agreement, or to
enforce performance and observance of any obligation, agreement, or covenant under this
Agreement.
Section 9.3. Revesting of Title in Authoritv. If the Redeveloper fails to commence or
complete construction of the Minimum Improvements within the period specified in Section 4.3
of this Agreement the Authority shall have the right to cancel the sale of the Redevelopment
Property to the Redeveloper. whereupon title to the Redevelopment Property shall revert to th~
Authority. Upon revesting title to the Redevelopment Property in the Authority, the Authority
will use its best efforts to resell the Redevelopment Property for redevelopment and shall use the
proceeds of such a resale to first, reimburse itself for all of its costs incurred in enforcing its
rights under this Agreement, in clearing title to the Redevelopment Property and in reselling the
Reucvelopment Property, and second, to reimburse the Redeveloper for the purchase price paid
by the Redeveloper to acquire the Redevelopment Property. The deed from the Authority to the
Redeveloper shall convey title to the Redevelopment Property subject to a right of reversion
reserved to the Authority as described in this Section.
Section 9.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to the
Authority or Redeveloper is intended to be exclusive of any other available remedy or remedies.
but each and every such remedy shall be cumulative and shall be in addition to every other
re11l~dy given under this Agreement or now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon any default shall impair any
. such right or power or shall be construed to be a Vv-aiver thereof, but any such right and power
20
. may be exercised from time to time and as often as may be deemed expedient. In order tu entitle
the Authority or the Redeveloper to exercise any remedy reserved to it, it shall not be necessary
to give notice, other than such notice as may be required in this Article IX.
Section 9.5. No Additional Waiver Implied by One Waiver. In the event any agrecment
contained in this Agreement should be breached by either 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 conculTcnL previous or subsequent breach hereunder.
Section 9.6. Effect of Termination of Agreement. In the event that this Agreement is
terminated pursuant to Section 9.2, all provisions hereof shall terminate except that Sections
3.10, 9.7, and 8.2 shall survive such termination and any cause of action arising hereunder prior
to such termination shall not be affected.
Section 9.7. Costs of Enforcement. Whenever any Event of Default occurs and the
Authority shall employ attorneys or ineur other expenses for the collection of payments due or to
become Jue or for the enforcement of performance or observance of any obligation or agreement
on the part of the Redeveloper under this Agreement. the Redeveloper agrees that it shall. \vithin
ten (10) days of written dClnand by the Authority pay to the Authority the reasonable fees of
sllch attorneys and such other expenses so inculTed by the Authority.
.
.
21
. ARTICLE X
Additional Provisions
Section 10.1. Representatives Not Individual1y Liable. No member, official, or employee
of the Authority shall be personally liable to the Redeveloper, or any successor in interest, in the
event of any default or breach or on any obligations under the terms of the Agreement.
Section 10.2. Restrictions on Use. The Redeveloper agrees for itse] f, and its successors
and assigns, and every successor in interest to the Redevelopment Property. or any part thereof,
that the Redeveloper, and such successors and assigns, shall comply with the restrictions on use
contained in Section 6.2 of this Agreement. The deed transferring the Redevelopment Property
to the Redeve]oper shall contain a covenant so restricting the use of the Property.
Section 10.3. Provisions Not MerQ.ed With Deed. None of the provisions of this Agreement
are intended to or shall be merged by reason of any deed transferring any interest in the
Redt.:velopment Property and any such deed shall not be deemed to affect or impair the
provisions and covenants of this Agreement.
Section lOA. Titles of Articles and Sections. Any titles of the several parts, Articles, and
Sections of the Agreement arc inserted for convenience of reference only and shall be
disregarded in construing or interpreting any of its provisions.
. Section 10.5. Notices and Demands. Except as otherwise expressly provided in this
Agreement. a notice, demand, or other communication under the Agreement by either party to
the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail.
postage prepaid, retum receipt requested, or delivered personally; and
(a) in the case of the Redeve]oper, is addressed to or delivered personally to the
Redeveloper at 76h 1 Bush Lake Drive. Bloomington. Mirmesota 55438; and
(b) in the case of the Authority. is addressed to or delivered personally to the Authority
at 1010 First Street South, Hopkins, Minnesota 55343,
or at such other address with respect to either such party as thnt party may, from time to time,
designate in writing nnd forward to the other as provided in this Section.
Section 10.6. Disclaimer of Relationships. The Redeveloper acknmvledgcs that nothing
contained in this Agreement nor any act by the Authority or the Redeveloper shall be deemed or
construed by the Redeveloper or by any third person to create any relationship of thinI-parly
beneficiary, principal and agent limited or general partner, or joint venture between the
Authority and the Redeve]oper and/or any third party.
Section 10.7. Modifications. This Agreement mny be modified solely through written
amendments hereto executed by the Redeve]oper and the Authority.
.
"11
. Section 10.8. COLlnterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 10.9. Judicial Interpretation. Should any provision of this Agreement require
judicial interpretation, the court interpreting or construing the same shall not apply a presumption
tl13t the terms hereof shall be more strictly construed against one party by reason of the rule of
construction that a document is to be construed more strictly against the party who itself or
through its agent or attorney prepared the same, it being agreed that the agents amI attomeys of
both parties have participated in the preparation hereof.
Section 10.10. Business Subsidy Agreement. (Reserved subject to determination on
applicability of business subsidy law)
Section 10.11. Termination of Agreement. This Agreement shall terminate in its entirety
on the later of the following oceurrem:es:
(a) When the Redeveloper has submitted to the Authority the final proforma under
Section 3.2(b) and the Purchase Price has been adjusted as provided in that provision; or
(b) When the last residential unit in the Minimum Improvements has been sold by the
Redeveloper to an individual purchaser; or
. (c) When initial leases for one hundred percent (100%) of the commercial space in
the Minimum Improvements have been entered into by the Redeveloper.
Upon sllch termination the parties shall have 110 further obligations under this Agreement;
provided, that the liabilities of the parties with respect to matters arising prior to such termination
shall survive.
.
-,~
~.)
-- -- -- -.- -- - --- ---- __0-
. IN \VITNESS \VHEREOF, the Autbority has caused this Agreement to be duly executed
in its name and behalf and the Redeveloper 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 HOPKINS
By
By_
l\fAINSTREET LOFTS, LLC
By
By_
STATE OF MINNESOT A)
) SS.
. COUNTY OF -)
The foregoing instrument was acknowledged before me this _ day of ~. 2002. by
and , the and of
the Housing and Redevelopment Authority In and For the City of Hopkins, a public body politic
and corporate under the laws of the state of Minnesota.
Notary Public
STATE OF MINNESOTA)
) 55.
COUNTY OF ~)
The foregoing iIlstrument was acknowledged before me this _ day of , 2002. by
and the of
Mainstreet Lofts, LLC, a Minnesota limited liability company.
Notary Public
.
:24
. SCHEDULE A
Description of Redevelopment Property and Expansion Property
Redevelopment Property:
Expansion Property:
.
.
.
,
. .
. SCHEDULE C
Site Plan
.
.
SCHEDULE D
. Design Guidelines and Objectives
.
.
')
~