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2002-01-08• MOUND HOUSING AND REDEVELOPMENT AUTHORITY JANUARY 8, 2002 6:30 P.M. 6:3 0 1. OPEN MEETING 2. SWEAR IN DAVID OSMEK AS HRA MEMBER 3. ACTION APPROVING AGENDA, WITH ANY AMENDMENTS 4. ACTION APPROVING MINUTES: NOVEMBER 2-3 27, 2001 5. EXECUTIVE DIRECTOR'S REPORT, WITH ANY 4-16 NECESSARY ACTION 6. ACTION ON METROPLAINS DEVELOPMENT CORP 17-40 DEVELOPMENT AGREEMENT 7. ACTION ON GRAMERCY CORPORATION 41-84 DEVELOPMENT AGREEMENT 8. ADJOURN • CITY OF MOUND • HOUSING AND l~EDE~ELOPMENT AUTHORITY NOVEMBER 27, 2401 The Housing and Redevelopm®nt Authority of Mound, Hennepin County, Minnesota, met in regular- session on Tuesday, November 27, 2001, at 6:30 p.m. in the council chambers at 5341 Maywood Road in said City. Members Present: Chairperson Pat Meisel; Commissioners Bob Brown, Mark Hanus, Kim Anderson and Peter Meyer. Others Present: City Manager, I{andis Manson; City Attorney, John Dean; Acting City Clerk, Bonnie Ritter; Pinky Charon, Mel Robeck. 1. OPEN MEETING Chairperson Pat Meisel opened the meeting at 6:30 p.m. 2. APPROVE:AGENDA MOTION by Brown, seconded by Hanus to approve the agenda. All voted in favor. Motion carried. 3. APPROVE. MINUTES MOT10N by Hanus., seconded by Brown to approve the minutes of the October 23, 2001, regular meeting. All voted in favor. Motion carc:rr~d. 4. EXECUTIVE DIRECTOR'S REPORT A. onth_~y Bifls for Nov~rnber, 2Q.41 MOTION by Hanus, seconded by Meyer :to approve the monthly bills for November, 2001. All voted in favor. Motion carried. B. MOTION by Meyer, secanded'`l,y Hanus to adopt the following resolution. All voted in favor. Motion carried. RESOLUTION NQ. 01-1~H: RESOLUTION APPROVING .PUBLIC HOUSING ASSESSMENT SYSTEM (PMASj MANAGEMENT OPERATIONS CEF~TIFICATION. C. Information Items 1) Accountants Monthly Report 2) Marquette Bank Staterr~ent 3) UVells Fargo Bank Statement 4) Mel (~obeck's Report on Levy Money Expenditures and Improvements. • -2- hIRA Minutes -November 27, 2001 rJ' . ~©.~~ .~~ MOTION by Br©wn, se~ond~d by H;~nus to adjourn at 7:17 p.rr~. All voted in favor. Motion carried. Chairperson Pat Meisel Executive Director • -3- • EXECUTIVE DIRECTOR' S REPORT FOR INDIAN KNOLL MANOR JANUARY 4, 2002 ACTION ITEMS: 1. Monthly Bills for December, 2002 INFORMATION ITEMS: 1. Budget Progress Monthly Report for October and November, 2001 2. Marquette Bank 3. Wells Fargo Bank 4. MBIA. Summary 5. .Levy Money Received. 6. NAHRO Information Flyer 7. Memo About Executive Director Review TENANT REPRESENTATIVE REPORT ADJOURNMENT • -4- MOUND HOUSING AND REDEVELOPMENT AUTHORITY Indian Knoll Manor # Check No. VendorlMerchant mount Comments 1 Lightyear $10.94 long distance Z Citizen 256.59 phones 3 Adams Pest 56.31 .exterminator 4 Reliant Energy 1,607A0 gas 5 I O S Capital 104.37 copier lease 6 Rental History Reports 25.00 background reports 7 C Naber ~ Assoc 480.00 accountants 8 B. Sylvester 57.50 form 50058 9 Above Ground and Beyond 1,118.25 tree triming and land 10 Diamond Roofing 80,143.96 siding repair 11 M E I 151.97 elevator service 12 M S I 241.50 boiler service 13 Sta-Safe Lock 192.05 lock bath room 14 City of Mound 1,170.81 sewer, water 15 Excel Energy 1,283.88 electric 16 Petty Cash 33.10 misc. 17 Minnesota NAHRO 100.00 dues 18 U S Postmaster 68.00 stamps 19 Karol Charon 166.67 mileage, supplies 20 CitiBusiness 1,222.39 maint, Internet, phon 21 Mound True Value 2,139.15 maint supplies 22 Linda Brown 1,120.00 maint helper 23 Darrin Brown 600.00 maint helper 24 Mound HRA 520.00 rent apt 205 25 Melvin Robeck 1,617.19 maint supervisor 26 Karol Charon 1,373.87 executive director 27 Marquette -IRS 2,528.83 4th Qtr taxes 28 Minnesota Dept of Revenu 563.00 4th Qtr taxes 29 Sterne Electric 2,050.00 roof fans 30 31 32 33 34 35 TOTAL: *************** TOTAL ACC. PAYABLE $101,002.33 Begining Bank Bal. $195,394.81 Deposits MTD $10 000.00 ENDING BANK BALANCE $104,392.48 Signature: AccPay 12110!2001 • • • -5- MOUND HOUSING AND REDEVELOPMENT AUTHORITY Indian Knoll Manor # Check No. Vendor/Merchant Amount Comments 1 4698 BFI $636.99 TRASH, RECYCLING 2 4699 IOS CAPITAL 99.37 COPIER LEASE 3 4700 M E I 151.97 ELEVATOR 4 4701 CITIZENS COMM 251.46 PHONES 5 4702 RELIANT ENERGY 1,607.00 GAS 6 4703 CITY OF MOUND 869.56 SEWER WATER 7 4704 M S I 797.09 BOILER MAINT/REPA 8 4705 STATE OF MINNESOTA 60.00 BOILER LICENSE 9 4706 NAHRO 120.00 NATIONAL DUES 10 4707 STA SAFE 70.00 LOCKSMITH 11 4708 XCEL ENERGY 1,119.06 ELECTRIC 12 4709 C. NABER 95.00 ACCOUNTANT 13 4710 B. SYLVESTER 57.50 50058 FORM 14 4711 RHR 50.00 BACKGROUND CHE 15 4712 PARK SUPPLY 183.39 BLINDS 16 4713 MELVIN ROBECK 1,653.07 MAINT MGR SALARY 17 4714 KAROL CHARON 1,299.81 EXEC DIR SALARY 18 4715 MOUND HRA 168.00 APT 308 19 4716 DARRIN BROWN 372.68 MAINT HELPERS 20 4717 LINDA BROWN 818.03 MAINT HELPERS 21 4718 MINN COMM 38.50 PAGER 22 4719 J R APPLIANCES 65.00 2 REFRIG, 2 STOVES 23 4720 ABOVE GROUND AND 505.88 TREE TRIMMING 24 4721 MICHAEL BEASLEY 87.88 SECURITY DEP 25 4722 ISABEL CARLIN 118.02 SECURITY DEP 26 4723 TWIN CITY OFFICE 122.48 TONER 27 4724 KAROL CHARON 54.95 MILEAGE 28 4725 TRUE VALUE 312.59 MAINTENANCE SUP 29 4726 CITI 345.65 INTERNET, CELL PH 30 4727 IRS 1,400.00 1 QTR 2002 31 4728 CONSOLIDATED PLASTIC 256.38 RUBBER MATS 32 33 34 35 TOTAL: $13,787.31 TOTAL ACC. PAYABLE $13,787.31 Begining Bank Bal. $95,674.14 Deposits MTD $10,000.00 ENDING BANK BALANCE $91,886.83 Signature: AccPay 01 /08/2002 .~: ~~- Mound, MN Public Housing 2020 Commerce Boulevard Mound, MN 55364 For The Period Ended 10/31/01 ' REVENUES 3110.00 Dwell. Rental 3120.00 Excess Utilities 3190.00 Nondwell Rental ~'~, Total Rental Income 3610.00 Invest. Interest 3690.00 Other Income 8020.00 Operating Subsidy Other Operating Receipts TOTAL RECEIPTS EXPENSES 4110.00 Admin. Salary 4150.00 Travel 4170.00 Accounting Fees 4171 AO Auditing Fees ~00 Sundry-Admin. Administrative Exp. 4310.00 Water 4320.00 Electricity 4330.00 Gas 4390.00 Other Utility Exp. 4391.00 Garbage Removal Total Utilities Exp. 4410.00 Maint. Labor 4420.00 Materials 4430.00 Contract Costs Total Maintenance Expense • BUDGET PROGRESS REPORT YTD Balance (11,291.50) 0.00 (100.0_0) (11,391.50) (40.34) (185.00) (3 548.00) (3,773.34) (15 164.84 473.40 0.00 0.00 0.00 675.05 1,148.45 0.00 0.00 0.00 0.00 0,00 0.00 1,235.25 2,450.76 936.49 4,622.50 Bud e (127,130.00) (750.00) (1 200.00 (129,080.00) (1,590.00) (100.00) 49 9 .00) (50,783.00) (179 863.00 22,916:00 800.00 1,500.00 500.00 4 350.00 30,066.00 2, 500.00 12,600.00 16,000.00 11,490.00 2 7y00._OQ 45,290.00 29,120.00 4,570.00 7 630.00 41,320.00 Percent Of gu et 9.00 0.00 8.00 9.00 3.00 185.00 7.00 7.00 8.00 2.00 0.00 0.00 0.00 % ' 16.00 4.00 0.00 0.00 0.00 0.00 °lo 0.00 0.00 4.00 54.00 12.00 11.00 °!o -6- 4510.00 Insurance 4520.00 Pmts In Lieu Of Tax 4540.00 Emp. Benefit Contr Total General Exp. Total Routine Exp. TOTAL EXPENSES Increase/(Decrease) To Retained Earnings Mound, MN Public Housing BUDGET PROGRESS REPORT CONTINUED YTD Balance Budget 730.33 4,470.00 569.58 4,190.00 318.31 3,990.00 1,618.22 12.650.00 7.389.17 129.326.00 7,389.17 129,326.00 7,775.67 50.537.00 Percen~ Of Budoet 16.00 14.00 8.00 13.00 6.00 6.00 • -7- ~,:._, ~-=-.m .. _.. _., ` Fj. Mound, MN Public Housing 2020 Commerce Boulevard Mound, MN 55364 For The Period Ended 11/30/01 BUDGET PROGRESS REPORT Percent Of YTD ud a Budget Balance REVENUES (22,866.95) (127,130.00) (750.00) 18.00 0.00 3110.00 Dwell. Rental 0.00 (~ 200.00) 8.00 °!° 3120.00 Excess Utilities (100.00) 080.00) (128 18.00 3190.00 Nondwell Rental (22,866.95) , Total Rental Income {1,590.00) 6.00 (92.96) (100.00) 220.00 3610.OOInvest.lnterest (220.00) {4 0~p) 7.00 3690.00 Other Income (3~,~48.00) 783.00) (50 8.00 % 8020.00 Operating Subsidy (3,860.96) , Other Operating Receipts (179 863.00 15.00 (26 827.91 TOTAL RECEIPTS 916.00 22 13.00 EXPENSES 2,876.40 , 800.00 6.00 4110.00 Admin. Salary 46.90 500.00 1 6.00 4150.00 Travel 95.00 , 500.00 0.00 4170.00 Accounting Fees 0.00 4 350.00 34.00 171.00 Auditing Fees 1 477.89 066.00 30 15.00 90.00 Sundry-Admin. 4,496.19 , otal Administrative Exp. 170.81 ~ 2,500.00 600.00 12 7.00 9.00 4310.00 Water 1,116.39 , 000.00 16 10.00 4320.00 Electricity 1,607.00 , 490.00 11 9.00 °t° 4330.00 Gas 1,083.50 , 2 700.00. 0.00 4390.00 Other Utility Exp. 0.00 , 290.00 45 9.00 4391.00 Garbage Removal 3,877.70 , Total Utilities Exp. - 120.00 28 24.00 7,059.25 , 570.00 4 120.00 4410.00 Maint. Labor 5,495.70 , 7 630.00 24.00 4420.00 Materials 1.812.84 . 320.00 41 35.00 4430.00 Contract Costs 14,367.79 , Total Maintenance Expense • -$- ~, C_;<. 4510.00 Insurance 4520.00 Pmts In Lieu Of Tax 4540.00 Emp. Benefit Contr Total General Exp. Total Routine Exp. 4610.03 Extra Maint Cont. 7520.00 Repl Nonexp Equip Total Nonroutine Exp. TOTAL EXPENSES Increase/(Decrease) To Retained Earnings Mound, MN Public Housing BUDGET PROGRESS REPORT CONTINUED YTD Balance Budget 1,315.33 4,470.00 949.46 4,190.00 525.91 3,990.00 2.790.70 12.650.00 25.632.38 .129.326.00 668.00 0.00 2 183.24 0.00 (13146.36 0.00 12.486.02 129.326.00 ,4 ~, 8 ~s.~.~s -9- MARQUETTE BANK, N . A ; Mamuette MOUND OFFICE . `"""~ PO BOX 1-000 ~. Bak Page 1 MINNEAPOLIS. MN 55480-1 000 ~ MEMBER FDIC 1 1-30-01 www.marquette.com 33530 8 - 115 34 HOUSING & REDEVELOPMENT AUTHORITY SPECIAL ACCOUNT 202.0 COMMERCE BLVD MOUND MN 55364-1575 788 I~I~li~liln~lltillniliilnili~l~lil~i~lil~l~l~li~lilini~lll AS OF NOVEMBER 1, 2001 A REDEPOSIT RETURN ITEM REDEPOSITING NON-SUFFICIENT FUNS CHECKS FEE FOR TO ACCOUNT WILL BE ASSESSED AT $'3.00 PER ITEM, YOUR Account Number 33530 SMALL BUSINESS CHECKING-INT Account Activity.. from 10-31-01 to 1I-30-01 Previous Balance Number of Items + Deposits. 87,684.13 Electronic De'pasits 3 1 07,710.68 + Other Deposits/Credits l .00' - Electronic Withdrawals ' -- 52..62 - ,Other Withdrawals/Debits .00- -:_Checks Paid 31 Current Ba.lar,ce' .00 99,773.29 Interest Summary 95s674.1.4 Interest Earner! Prom 10/31/0'1 to" 11/30/01 Davs in Period Interest earned 30 Annual Pereentac~e Yield Earned 52.62 Interest Paid this Year :50 Interest Withheld this .Year 653.34 Deposits .00 -Date Description I1-07 CUSTOMER DEPOSIT Amount . 11-07 CUSTOMER-DEPOSIT I1-20 96141.56 10262 45 CUSTOMER DEPOSLT . 1306.67 Total Deposits 3' 107, 710.:68 Other .Deposit/Credit Activity Date Descript-ion 11--30 INTEREST PAYMENT ._ Amount ..52.62. ,:. `Total other DepostsiCredits 1 52.62 MDIA Summary Statement November 2001 ,N~~~M> II ~ ~ . •y °~r r.+ For more information, call MBIA Client Services at (800)395-5505 Fax: (800)765-7600 Mound (Housing and Redevelopment Auth. Anrnnnf~l~(nmhRr_ M14N-tll-tl2jR-ZM1n1 Account Name: GENERAL FUNll Bcginuiug Contributions WiWdravJals Icicomc Avcragc Daily Month End. Balfincc Earned Bt~lancc: Balunw This Month 599,089.32 $O.UU $O.QO St71.U0 $99,181.06 $99,260.32 Fiscal YTD Endin 12/3110 $215,255.03 $49,000.00 $170,U00.(1(I $S,tK15.29 $123,8G3.18 $99,2GU.32 errs„nt N,~mher: A•LN-01.028-2002 Account. Name: MOUND HUD beginning Contributions Withdrawals Income Average Daily Month End Balance Earned Balance Balance This Month S11,134.d2 $0.00 $O.CIU $19.23 $11,1A4.7~4 $11,153.G5 Fiscal Y'I'D Endin '12/31/0 S2U,GGG.52 $U.W $10,(1(10.00 5457.13 $12,5GS.G8 $11,1S3.G5 • Total of all accounts Beginning Contributions Withdrawals Income Average Daily Month End Balance Earned Balane~ Balances Tlus Month $110,223.74 $0.00 $0.00 S190.23 $110,325.80 $110,413.97 Fiscal YTD Endin '12;31/0 $235,921.55 $49,000.00 $1SU,OU0.UU $5,492.42 $13G,42b.&G $110,423.97 November 2001 Page: 1 -~~- ~'~`~` ~ ~I Account Statement Statement llate:'November 29, 20O l I'ael~f2 23739 t_3 HOUSING. AND DEVELOPMENT AUTHORITY H OF. MOUND 2020 COMMERCE BLVD - MOUND MN 55364 If you have any questions about this statement or your accounts, call: 800-225-5935 (1-800-CALL-WELLS). Or write: WELLS FARGO BANK MINNESOTA, N.A., IDS CENTER OFFICE, POST OFFICE BOX B 514, MINNEAPOLIS, MN 55479. COMWG SOON....A CHANGE TO YOUR ACCOUNT STATEMENT. BEGINNING IN DECEMBER, YOUR ACCOUNT INFORMATION WILL PRINT ON THE FRONT AND BACK PAGES OF THE STATEMENT. THIS CHANGE WILL HELP .SAVE PAPER" AND CONSERVE OUR ENVIRONMENT. WATCH FOR MORE DETAILS. YOUR TELEPHONE NUMBER FC)R ACCOUNT SERVICING HAS CHANGED. YOU CAN NOW ENJOY THE CONVENIENCE OF NATIONWIDE TOLL-FREE ACCESS. PLEASE CALL 1-800-TO-WELLS (1-800-569-3557) FOR PERSONAL ACCOUNTS. 11= YOU, WOULD-LIKE TO SPEAKWITH A PHONE BANKER WHEN CALLING, PLEASE PRESS""'. YOU WILL NOW SEE THIS NUMBER ON YOUR STATEMENT. PLEASE CALL 1-800-CALL-WELLS (1-800-225-5935) FOR BUSINESS ACCOUNTS. THERE IS NO CHANGE TO YOUR.A000UNTS. - sic Business Checking With :Interest Housing And Development Authority Qf Mound _ _ Account Number: 042-0023739 Activity summary- '~ Balance: on .10/?g $941`.95 lleposits and interest 0:11 Withdrawals _.:2.00 Balance on 11/29 .. .......... ... .......... ~ ......$940.06 ', . Interest you've earned Average collected balance this period $94.1.95 Annual percentage yield earned 0.12% Interest Paid during this period SO.I T Intereti-t and bonuses paid this year $5.(l7 Interest earned f'or this 5-tatement period - $0.10 I.1/1T1/"C• nn~ -.u rnve.~ nidn fir ~rnnnr~o nl infnrMO/inn - DELUXE -FORM TWCP-3 V-2 DATE DESCRIPTION AMOUNT 12-28-01 H.R.A. 4696-9600-4100 = $28,000.00 $28,000.00 2nd HALF PROPERTY TAX STATE AID HACA v.2 • • -13- :.. TI9 ~Uil~ $tt'fL"t4S1CF Relati~nShi 5 X44 ~ ~ ~ llevcloped ~ propos<il for conversion of Capitol Hill and at HUD, NA~Rn =ptihlic. hotlsmg to assisted lien, ~C Gave. compelling tcstinlany in ilie . 1 housing that is tiiidcr consideration by ~ 1 Cbi~gress.` i Sen~Ile heat rags eahressing oar ' conceals olt the Public IIonsing ~ ~ ~ ~ ~G ' Estalllishe~l I Technolo~ry 1Vorking ~ Asscssnlei~t S~stefn (YHAS).. - ~ Group, wluch included ~~eildolspublic Persuaded HUD;to publish an Interim ~~ I I .housing agencies ~•ud conlnnuvty. Rule as hie first step in ilegotiatilig au -development agenues; Convinced ~>Jternatiae to Y-HAS. •; ~ ~ HUD,to estabksl~I a test site ih:It allows ' ~ Testified lnefore the, House, SenatP,arxl '~ ' vendors and LHAs to testtheir Millennial Housing Colilmissioli to ~ S~ft<~~ue anijdata tr~ulsfer protocols. influence policy makers to provide ~ Wol l.cd with HUD under a programmatic changes and secure '~ Comrinced HUD to delay implemen- cooperative agrecnleut to provide adequate funding levels for HUD tation of the lead-based paint rule for assistance to troubled Ilousal~g Libel Icier. programs, including Public Housing, 18 months while fimcling was sought Section 8, HOME and GDBG; and reclmic~l capacity oi' k,c d agencies To Create Partnerships, Which Provide ~k Collvinc~;c3 congress to provide .IiUD ~~'~ nlcrcclsed. Members with More Resources, NAHRU ~~~idl additional (lehlbility to ensw•e that *" Submitted a new, in-depol housing ~ ~ Signed a memorandum of housing agencies have access tci. Section r; production propos 11 which has put 'u~i~leist~lnding with Standard and 8 1PServe funds b~yoncl the one-lrlontl I "`' <rsslstecl housing production back on Poor's to develop and operlte a reserve level dio,congressional agenda' national assessment allcl i>ilprovernt:nt ~t I,t~d ali effort ~~ritli Stalldaid and-Pool ti _; *' `~on a;Gold Circle Award in system for local housil7g ~~igencies, ~Sc~P} to devefap a comprehensive Government Relations from the * Collaborated with the L.cx:al L litiatives _ , Ainelican Societ.. of Associahoii _ Support Corporation (LISC) quid„'._ aSSBSSTIIeIIt and 111ailage111el1t `~ improvement system t}lat is fair, Executives (ASAE) for using congres- F~unlie Mae to provide a series of• reliable and accurate. As an alternative sional district data for advocacy. Section 8 home ownership seminal•s. to PHAS, the S&I' system will provide *' Represented members' views in * Brought together coalitions of local more real-world bc;nefits and create numerous nlectings at IIUD alicl on the '' govertunent ~r~aniz~atons to address I srxss paint and home es ndations to - ::: , `lead-based ,.l clew oppor•hmities for local housing Hill, alld made rcconlrue agencies. ~ ~ .policy makers oi~ the large variety o1 issues. ~r Succeeded in getting Congress to ~ issues of iinportanc~ to our men111e1s. * Fol-lned the NAHRO, Access .Alliance decrease the set aside l'ordown - ~ ~~ *' Collabol ~2ted with the National:" with the 13auk of Annelic<i, The ~ 1 nnentassistallce from;the HOME Acadcliry of Public Achninistration to Entel~lrise Foundation; ES1C, LISC 1 ~ } rovide Con ess and 1=ILTD with and NEF to provide coordinated access progr~un;in,the FY02 appropriations. P. ~ ~ Ncgotl;ifed-a coinprornlse on die public; ilfonnation on ef~iective methods for to information, development skills, and }tousilig deconcentr'atioii~regnalatious Iilomtoni~g and improving HUD- loan and equity capital to housing and from HUID, assisted housing programs. community development member fit' Secured full .funcllng for all Section 8 _ agencies. c ~ !T; s ` _ contracts plus 26,000 vouchers in F'Y02 ~l ~ 1~- = + _ ~ Entea•ed into a joint venture with One ~~I~ mi~== ~) ar~ I~~', `• ~~= Economy Co11~oration to help bring appropriations. Intelilet access into affordable housing building, communities together ~, ;~ f7 .~ 1 1 ~ ~~ ~~ ..~ ;~ .. ,~. To Improve the•Image of~Assisted Torjiprove`-the~E ' Housm~ and Community-Development,'`, r Efficiency. of lacy NAHR -' - .~~~;~,.,~, ;Coni~nissionets; *~`~ - 1 ,,mod ~ ~1 li ln1~Ut~d'~r~x Dints ~~ ~ ~ s~bhcLetl,~,z v, ,r r b4dY1 f ~f, `~ .. ~.. a eness and ,~+'~~fr~~'~rt~ 2002, NAHRO,WiII Continue to and r~ ~ ~~~''~ ~*-C;oxtdrzct;brzefin,gs with HUD, ,~Y l {~ -~r'' '~ ~' C'p»~~t~ ss and the odxer industry ~~a,~> ~ .<ur~ ~ ~ {senes`•of`~ :r ' ~ 'groups~fu itiaplHjxjent a NAHRO- -uo.Section.S thu Public Housimr Dni~~~ `~~` r~~luaioS,ho~-tstw-delrvtt~r~ o~enttie il~ttratei~ Efl~ort.witlx S&P to develop~l ~, ~ ~ '~ I,linuuatron-Pro~r.nu; t1re.Capital hurul `tul~~phone to pr~~7dc riiernb~ rs"artlr ~ur' comprefren~r~~e a5sessmet~tand, and utilitti urcri:~LU~s to c~~~~lain our ~ Inexherisr~u~~ta}`.sta> >nfoixnrd nn ~~ot ~: ~ a~inlrroveinent syst~rn tli~tcottla~ =~ ,~-~, ~~ -~ ~ •~~ ~~ptovxle~:nr ilter7rutl~•e~to'PHAS. posrtloz~',on t15e5~ proq~anrs and Issues ~ to »es,iii t~,c~fic~d ~ '~ 1o.Coilg~es~'atiaoth~.r cbn5krtu~rits: ~k :,171~elop~ed`tc~ ~urt~tlj{u~,~tislutt~i,to * :Lnga~~':i~r cltscussions ~~1th HUD acid '* Yubhslicd I~essorts~~atited A;Publtc '.kc~~p ~r,l~tll aget~ ru~otm~ ~lr~bout'',;" ,~~;upgiuss on irnpru~ur~ SLNi~~',, "~°; . `Ildusttt~g Gtii4lel9ool. «'~11,4,~t~' ~~wT. ~ 'a~ti~atte5 9#xnt~' ~ttrd`~pto~ldee~ ~ten1 .~f s~ttP~=$ Il~uil b~~sz~l utrllzataon, runt ~ , y _ ~ Z ss 4w r , a : ~ r u P ~ ~` 6 r , . .; ynthe~l~ed iiifonnflhonloai~xt?d fiorii ~ :.~~7dr'~~°lb pr~r'~e~`discount'OU hr~I~1,I0 ib ts6t~lal~l~~s as--ii~cumc vet~ficxhpns r. _ ~ s ~ . providing tecluuc rl tssist urce to ~- , - scrniuacs ~• `~ 5 ~ ~~ r .: ;; s ~u~d F]~~tertp,tnatiur rs, and to tllc~w for troubled agenei~s. -1'he Guidebook ~ * _ Present ,l un-site s~uiinars u~ ~in, ~ , - ' ', , Sc~ lagi'S P{'oiect-13~~sird ~s5~,tance m `;-; ~~•~u pro}~dec3fi~ee al,elrarge.to~a- alternative to~~educate sttH ~nd'~ ru~xtalizing cLsti.e~sed eon~n~unitlFS m a ~' ]rousing 2gencre~ under ~~ ~onh•aet ~~ndi comnrissroners ~~nthout the tr,r~'E.1 quid _ f]e~rble manner. -. ~~ .17C1D, ':; , . - ~.'~ er diem cost usu~ll ~tssucralecl ~~it}a * advocate for ad~~~~t rke fr, ~n~Unt;~of d,c ~~~ ,p 7 ~~ : ~~ ; u~.:, * '~'rrsentGd251 A ~ ar cL5 ~of Ltecil ,,~, ~ `aegularl selrec~uled #r`uirrn~s. ~`~~~i ogi ~uiiti th~it allow you to ;,cr~.e your rec<>gr~izmg iruiq~ ttr~c,hnusing:and - *. Introaucc.cl,,t~~i~o newsetnu?~trs lin• iretirdunLS uxl communities aswc,ll"as comnnuut`~ devt,loptuiritt Iir,~rj~~r ts, , ~ cominunii ~- develnhment acrd rr di~~~el- ~ blur the flexibluly vi redruremetits and '; pr ot~ranis vtd Ser~~cos.~ Sntce the . ©pment I,r n['~~tisiun rls° ` ~ r c17ulations that let yqu do your lov pro~>rr~n b~gan~m 1989, nto~r'th ur _" ~ ~ * 1'util~ l~ur dt~ reslot~ttsa~? ofntonrrs to ~3,oou _~~~ nds ~_ f Merit:h;tvo b~~n ~ To Continue Improving Member ~ .cup ~~~~ Pl--»1~ P acav~ties grid tu~nlsure - ~pres~ utcd ~ _ '_ ~' Be~neflts,NAHRO'~ . , • d~ it fur~ngrem~ns for oi~rr,r.suc:i~d *.Coniurucd th4 ;fir rtion<il Roll of ~k I ~rruclied'yAIIIIU DtYe~tl\cu,s yr e,- ~ scrvrce ~~tograms. .; . ~~Acl~4v4rs to ttc~iP}'tlx~qutstautlu,g _~ ~~' t .=n,,ulnews service,~pro~nr~',, anajti~usof ~k. ~~~orkwitl~ Gll13G grantees to address.: `~'~ .~ .. ~~"aclnevements o~'th~ rESideiits cif public regulations and legislative netiti~s, d~rtck ' ; IIUDsgrew, pylicy ou timely ; ; and assisted housing. This provides a ':.reminders on regulatory deadlines, - ea1~eucliture of (`'DISC; funds; "' way to put a "face" on the benefits of how-to information, and case studies by * Activate n4~~ feature s c~~l the ~~Vc,l> s' HUD programs. Since its inception, specific areas of interest. to enable rneiiibers to %ipdate.tlteii•~ more than 80 achievers have been '* .Provided the "Washington Update" rnembershrp records, order added to the list. e m~ril sPn~icre tQ all acrlc~ iiretnbers ter.- publications, register for sentintu-s acrd Introduced the Fuiancial Assist tnc.e fob ~,: grve•tlreni rrp tq the-^Zinutc: ne~~~ on. ;. ~ End agency directory listings. ~,Residerrt Entl~eprei~~urs I?rogram,, ~`~ whats_h rhpening rn Ccin~Tr c,ss ,and ~rE- ; * Offer fib training ixr Lead-Safe Work which providecJ five $5,000 grants. to ." 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It.will allow members to fulfill ~ cantly increase the understanding by electronic access to the D~onitor, their procurement needs and Congress and the public of the * Revised the NAI ] RO ~t~eh site to ~ 'requireirtents from :one centr<ili.zed area .importance of these programs. •~ update its look and'cas~ of nse. ~.' ~ un tlr~ ry_~H1~0 ~~UeU sites -. ~ ~.: Stzl~c¢# infurtnation sec.trons ~~~ete `'. .'. _ _ ulded "so ~neriilier~s wi1J~ pai~iciil lr ;~~intcres~ts ebuld rluicklvfind inf<~rruatioir ~. ~~ ~c rred"specifically to dzeri~. ~ - *='Ulxlated the-format of the jour7ral o~ Hottsirrg alril Corrrrrtu~iity Development (JOHCD) acid the Nlonitor•. NAHRO's JOHCD won the top award for "Most Improved Magazine" from ASAIJ. NATIONAL ASSOCIATION OF HOUSING ANp RE~bEVELQ 630 EYE STREET, NW, ^ WASHINGTON, DG .20001.' ^ TOLL-FREE 1-8-r. i -866 2416 ^ FAX:; 15- ~,. ~.: ~ .. ''.f' NTH°OFFICIALS ~~ $9 $181 ^ }NEB ~ITE~ www.nahto;;grg • January 3, 2002 Mound HRA Board of Commissioners: Subject: Executive Director's Annual Review Dear Commissioners: Last year during one of our meetings it was decided that the Executive Director shall be reviewed in March. I am in the process of collecting information from other PHA's and the city regarding their review process. After I have I have received all of this information I will enclosed my recommendation to you in your February agenda. Sincerely, Karol Charon Executive Director • -16- January 4, 2002 AMENDED AND RESTATED CONTRACT FOR PRIVATE REDEVELOPMENT BY AND BETWEEN THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF MOUND AND METROPLAINS DEVELOPMENT LLC 2001 This document was drafted by: Rjd agreement metroplains restated -~7- TABLE OF CONTENTS ARTICLE I Definitions and Exhibits Section l.l. Definitions ...............:................................................................................................2 Section 1.2. Exhibits ..: ................................................................................................................4 Section 1.3. Rules of Interpretation .............................................................................................4 ARTICLE II Representations Section 2.1. Representations by the Redeveloper .......................................................................5 Section 2.2. Representations by HRA .........................................................................................6 ARTICLE III Site Assembly Section 3.1. Acquisition ...............................................................................................................6 ARTICLE IV Construction of Minimum Improvements Section 4.1. Agreement to Construct ...........................................................................................6 Section 4.2. Demolition ...............................................................................................................6 Section 4.2.1. Relocation of Utilities ..............................................................................................6 Section 4.3. Soil Correction -Contamination ..........................................:..................................6 Section 4.4. Concept Plans ..........................................................................................................7 Section 4.5. Commencement and Completion of Construction ..................................................7 Section 4.6. Construction Reports ..............................................................................................7 Section 4.7. Certificate of Completion .......................................................................................7 ARTICLE V Public Improvements Section 5.1. ..................................................................................................................................8 ARTICLE VI Casualty Losses Section 6.1. ..................................................................................................................................8 ARTICLE VII Tax Increment; Site Costs Section 7.1. ..................................................................................................................................9 i -~8- ARTICLE VIII Financing Section 8.1. Limitations Upon Encumbrance ............................................................................10 Section 8.2. Copy of Notice of Default to Lender ....................................................................11 Section 8.3. Lender's Option to Cure Defaults .........................................:................................1 l Section 8.4. HRA's Option to Cure Default ..............................................................................11 Section 8.5. Subordination ....................:...................................................................................11 ARTICLE IX Prohibitions Against Assignment and Transfer Section 9.1. Representation as to Development ........................................................................12 Section 9.2. [BLANK] ...............................................................................................................12 Section 9.3. Prohibition Against Transfer of Property and Assignment of Agreement ...........12 Section 9.4. [BLANK] ...............................................................................................................13 Section 9.5. Approvals ...............................................................................................................14 Section 9.6. Release and Indemnification Covenants ................................................................14 ARTICLE X Events of Default Section 10.1. Events of Default Defined ....................................................................................15 Section 10.2. Remedies on Default ..............................................................................................15 Section 10.2.1 [BLANK] ...............................................................................................................16 Section 10.3. No Remedy Exclusive ............................................................................................16 Section 10.4. No Additional Waiver Implied by One Waiver ....................................................16 ARTICLE XI Additional Provisions Section 11 .1. Conflict of Interests; HRA Representatives Not Individually Liable .................... 16 Section 11 .2. Nondiscrimination .................................................................................................. 17 Section 11 .3. Changes in Tax Increment .................................................................................... 17 Section 11 .4. Notice of Status and Conformance ........................................................................ 17 Section 11 .5. Notices and Demands ............................................................................................ 17 Section 11 .6. Counterparts ........................................................................................................... 18 Section 11 .7. Prior Agreement ..................................................................................................... 18 Section 11 .8. Business Subsidy Agreement ........................................................................... ...... 18 Section 11 .9. Payment of Administrative Costs .......................................................................... 18 SIGNATURES AND ACKNOWLEDGMENTS ........................................................................19 EXHIBIT A Description of Property EXHIBIT B Certificate of Completion ii -19- AMENDED AND RESTATED CONTRACT FOR PRIVATE DEVELOPMENT THIS AGREEMENT, made and entered into this day of , 2001, is by and between THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF MOUND, MINNESOTA, a Minnesota public body corporate and politic (the "HRA"), and, METROPLAINS DEVELOPMENT LLC, a Minnesota limited liability company, (the "Redeveloper"). WITNESSETH: WHEREAS, the City of Mound and HRA have established Development District No. 1 ("Project Area") under the authority of Minnesota Statutes, Chapter 469 (the "Act"), and in accordance with the provisions of this Agreement has established within the Project Area the Tax Increment Financing District No. 1-2 ("TIF District") and adopted a Tax Increment Financing Plan ("hereinafter defined as the "Tax Increment Plan") for the TIF District to facilitate the financing of public development and redevelopment costs in the Project Area; and WHEREAS, the HRA deems it to be in the public interest to facilitate and encourage redevelopment of the Project Area by a combination of public and private activity within the Project Area and in accordance with the Tax Increment Plan as adopted by the City; and WHEREAS, the Redeveloper has proposed a development (hereinafter defined as the "Development") within such Project Area which the HRA believes will promote and carry out the objectives for which redevelopment is undertaken, will be in the vital best interests of the City, will promote the health, safety, morals, and welfare of its residents and will be in accord with the public purposes and provisions of the applicable state and local laws and requirements under which activities within the Project Area have been undertaken and are being assisted; and WHEREAS, the Redeveloper and the HRA entered into a Contract for Private Redevelopment dated as of December _, 2000, which was amended by a First Amendment to Contract for Private Redevelopment Dated as of 2001 (said contract as amended being hereinafter referred to as the "Prior Agreement"); WHEREAS, pursuant to the Prior Agreement the Redeveloper agreed to purchase property within the Project Area such property being legally described in the attached Exhibit A (hereinafter defined as the "Redevelopment Property") and to develop the Redevelopment Property. in accordance with the Prior Agreement; and WHEREAS, consistent with the Tax Increment Plan, the HRA agreed that it would provide financial assistance in accordance with the provisions of the Prior Agreement; WHEREAS, in order to modify certain terms of the Prior Agreement and to further describe the manner in which the HRA's financial assistance will be made available to the Redeveloper the Redeveloper and HRA agreed to enter into this Agreement to amend and restate the Prior Agreement in its entirety. -20- NOW, THEREFORE, in consideration of the premises and mutual obligations of the parties contained herein, each of them does hereby represent, covenant and agree with the others as follows: ARTICLE I DEFINITIONS, EXHIBITS RULES OF INTERPRETATION Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears from the context: "Act" means the Economic Development Act, located at Minnesota Statutes, Chapter 469, as amended. "Agreement" means this Agreement, as the same may be from time to time modified, amended, or supplemented. "Available Tax Increment" means with respect to any debt service payment date on the Bonds or the Notes ninety percent (90%) of the Tax Increment that has been received by the HRA after deducting any amounts of Tax Increment previously used to make a debt service payment on the Bonds or the Notes or to remedy a prior delinquency with respect to the Bonds or the Notes. "Bonds" means the Series A Bonds and the Series B Bonds. "Certificate of Completion" means the certification, in the form of the certificate contained in Exhibit B attached to and made a part of this Agreement, provided to -the Redeveloper upon the completion of any Component, pursuant to Section 4.7 of this Agreement. "City" means the City of Mound. "Closing" means the date on which title to the Redevelopment Property was transferred to the Redeveloper. _. "Commencement of Construction" means excavation for the purpose of setting footings or foundation. "Completion of Construction" means the completion of construction of a Component of the Minimum Improvements except for tenant finish work. "Component" means either the Residential Component or the Commercial Component. "Components" means both Components. "Concept Plans" mean the plans, drawings and narrative descriptions for the Minimum Improvements. 2 -21- "Construction Contract" means a contract or contracts which provides for completion of the Minimum Improvements. "County" means Hennepin County, Minnesota. "Development" means the Minimum Improvements to be constructed on various portions of the Redevelopment Property, together with the other improvements and site work shown and described in the Concept Plan. "Event of Default" means an action by the Redeveloper, or HRA, listed in Section 10.1 of this Agreement. "Minimum Improvements" means the improvements to be constructed by Redeveloper on the Redevelopment Property. The Minimum Improvements are expected to include: approximately 99 residential units and related site improvements and amenities (the "Residential Component"), approximately 67,000 square feet of commercial space and related site improvements and amenities (the "Commercial Component"). The Minimum Improvements are more fully described in the Concept Plan. "Minnesota Environmental Policy Act" means the statutes located at Minnesota Statutes Sections 116D.01 et seq., as amended. "Minnesota Environmental Rights Act" means the statutes located at Minnesota Statutes Sections 116B.01 et seq., as amended. "National Environmental Policy Act" means the federal law located at 42 U.S.C. Section 4311 et seq., as amended. "Note" means the Limited Revenue Tax Increment Note to be executed and delivered to the Redeveloper pursuant to Section 7.1. "Prior Agreement" means the Contract for Private Redevelopment between the Redeveloper and the HRA dated as of December _, 2000, as amended by a First Amendment to Contract for Private Redevelopment Dated as of , 2001. "Redeveloper" means MetroPlains Development LLC, a Minnesota limited liability company. "Redevelopment Property" or "Property" means the real property described as such on Exhibit A of this Agreement. "Series A Bonds" means the bonds described as such in Section 7.1 of this Agreement. "Series B Bonds" means the bonds described as such in Section 7.1 of this Agreement. "Site Costs" means costs and expenses incurred by the Redeveloper, as certified by the HRA's financial consultant, which qualify for reimbursement under the Tax Increment Plan. _22_ "State" means the State of Minnesota. "Tax Increment" means that portion of the real property taxes which is paid with respect to the Redevelopment Property which is remitted to the Authority as Tax Increment pursuant to the Tax Increment Plan, after. reduction (if any) of fiscal disparities' contributions which are mandated by state law to be made with respect to any parcel. "Tax Increment Act" means the statutes located at Minnesota Statutes Section 469.174 through 469.179, of the Economic Development Act. "Tax Increment Plan" means the tax increment financing plan adopted by the City in connection with the creation of the Tax Increment District and as such may be modified and amended from time to time. "Tax Official" means any City or county assessor; County auditor; City, 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 Delays" means unexpected delays which are the. direct result of adverse weather conditions, shortages of materials, strikes, other labor troubles, fire or other casualty to the Minimum Improvements, litigation commenced by third parties which, by injunction or other judicial action, directly results in delays, or acts of any federal, state or local governmental unit other than those provided for under this Agreement or any other cause or force majeure beyond the control of Redeveloper which directly results in delays, provided, however, that adverse market conditions or tenant actions affecting the marketability or profitability of the Minimum Improvements, or the inability to secure financing of the Minimum Improvements shall not constitute Unavoidable Delays. Section 1.2. Exhibits. The following exhibits are attached to and made a part of this Agreement. A. Redevelopment Property Legal Description; B. Certificate of Completion; Section 1.3. Rules of Interpretation. (a) This Agreement shall be interpreted in accordance with and governed by the laws of the State of Minnesota; (b) The words "herein" and "hereof' and words of similar importance, without reference to any particular section or subdivision refer to this Agreement as a whole rather than any particular section or subdivision hereof; (c) Any titles of the several parts, articles and sections of this Agreement are inserted for convenience and reference only and shall be disregarded in construing or interpreting any of its provisions. 4 -23- ARTICLE II REPRESENTATIONS Section 2.1. Representations by the Redeveloper. (a) The Redeveloper has the power to enter into this Agreement and has duly authorized the execution, delivery, and performance of this Agreement by proper action. (b) If the conditions precedent to construction occur, the Redeveloper reasonably believes that it has the capability to obtain necessary equity and a financial commitment necessary for construction of the Minimum Improvements. (c) If the conditions precedent to construction occur, the Redeveloper will construct the Minimum Improvements described in the Concept Plans in accordance with the terms of this Agreement, the Redevelopment Plan and all local, state and federal laws and regulations. (d) The Redeveloper will exercise all reasonable efforts to obtain, in a timely manner, all required permits, licenses, and approvals and will meet in a timely manner, all lawful requirements of all local, state, and federal laws and regulations which must be obtained or met before the improvements may be constructed. (e) Redeveloper will comply in all material respects, with all applicable local, state and federal environment laws and regulations, will have obtained any and all necessary environmental reviews, licenses or clearances under, and will be in material compliance with the applicable requirements of the National Environmental Policy Act of 1969, the Minnesota Environmental Policy Act, and the Critical Area Act of 1973 and any other applicable environmental law or regulation. Redeveloper has not received notice or communication from any local, state or federal official indicating that the activities of Redeveloper may be or will be in violation of any environmental law or regulation. Redeveloper is not aware of any facts the existence of which would cause the Redeveloper to be in violation of any local, state or federal environmental law, regulation or review - procedure or which would give any person a valid claim under the Minnesota Environmental Rights Act. (f) The Redeveloper acknowledges that it has relied exclusively upon its own analysis of the potential Tax Increment and/or Available Tax Increment to be generated by the Redevelopment Property and that neither the HRA nor its officers, agents or employees has made any representation or covenant, express or implied, as to the amount of Tax Increment, and/or Available Tax Increment that will be generated by the Redevelopment Property; or that such will be sufficient to make payments under the Bonds or the Notes. The Redeveloper further acknowledges that the proceeds of the Bonds and payments under the Notes are the sole source of payments for the Site Costs described in this Agreement. The Redeveloper further acknowledges that the amount of Tax s -24- Increment and/or Available Tax Increment may be affected by a variety of factors, including without limitation legislative reductions in property class rates that could reduce the Captured Tax Capacity of the Redevelopment Property, thus reducing the Tax Increment collected by the Authority 'and the Available Tax Increment pledged to payments on the Bonds and the Notes. Section 2.2. Representations by HRA. The HRA makes the following representations as the basis for the undertakings herein contained. (a) The HRA is authorized by law to enter into this Agreement and to carry out its obligations hereunder. (b) The HRA shall, without expense to it, cooperate in Redeveloper's efforts to obtain all federal, state, and regional agency land use, environmental or other regulatory approvals necessary to implement the Project. ARTICLE III SITE ASSEMBLY Section 3.1. Acquisition. Following the execution of the Prior Agreement, the Redeveloper acquired the Redevelopment Property for the purpose of constructing the Development and has provided the HRA with satisfactory evidence of such fact. ARTICLE IV CONSTRUCTION OF MINIMUM IMPROVEMENTS Section 4.1. Agreement to Construct. Subject to the provisions of this Agreement, the Redeveloper agrees that it will construct the Minimum Improvements in accordance with the approved Concept Plans. Section 4.2. Demolition. The Redeveloper shall, at its sole expense, and in accordance with City requirements, raze and remove all structures on Redevelopment Property including any abandoned City utilities. Section 4.21. Relocation of Utilities. In addition, the Redeveloper shall, subject to Section 7.1, be responsible for the cost of relocating any public utilities currently located on the Redevelopment Property, and which are relocated because of the Development. Section 4.3. Soil Correction -Contamination. As between the parties hereto and the City, the Redeveloper shall have the sole responsibility and subject to reimbursement using the proceeds of the Bonds and reimbursement pursuant to the Notes, bear the cost necessary to make any necessary soil correction or to remedy or otherwise respond to the existence of any contamination or pollution in, on or under the Redevelopment Property. Neither the HRA nor the City has made any .representations concerning the nature of soils, the suitability of such soils -25- for the Minimum Improvements, the existence of contaminants or pollutants, or the cost of correcting any unsuitable soil conditions, contamination or pollution.. Section 4.4. Concept Plans. The Redeveloper has submitted and the HRA has approved schematic Concept Plans. If the Redeveloper desires to make any change in the Concept Plans that will result in a use change, a change in the expected value of the Minimum Improvements, or a change in the exterior design of the Minimum Improvements or the site, the Redeveloper shall submit the proposed change to the HRA for its approval. If the Concept Plans, as modified by the proposed change, conform to the requirements of this Section with respect to such previously approved Concept Plans, the HRA shall approve the proposed change and notify the Redeveloper in writing of its approval.. Such change in the Concept Plans shall, in any event, be deemed approved by the HRA unless rejected, in whole or in part, by written notice by the HRA to the Redeveloper, setting forth in detail the reasons therefor. Such rejection shall be made within twenty (20) days after receipt of the notice of such change. Final construction plans and specifications shall be reviewed by the City Building Official in connection with issuance of building permits. No building permit may be issued if the final construction plans and specifications materially depart from the approved Concept Plans. Section 4.5. Commencement and Completion of Construction. The Redeveloper shall commence construction of the Commercial Component of the Minimum Improvements by May 1, 2002 and shall complete construction of the Commercial Component of the Minimum Improvements by May 1, 2003. Construction on at least a portion of the Residential Component will also commence by May 1, 2002 for completion by December 31, 2002; and construction on the entire Residential Component will have been commenced by not later than May 1, 2003 and be entirely completed by not later than December 31, 2004. The Redeveloper shall not be considered in breach of, or default in its obligations with respect to the commencement and completion of construction of the Minimum Improvements, if the occurrence of an Unavoidable Delay requires extension of the time or times for performance of the Redeveloper with respect to construction of the Minimum Improvements provided, that the Redeveloper shall, within fifteen (15) days after the beginning of any such Unavoidable Delay, have notified the HRA thereof in writing, and of the cause or causes thereof, and further provided that the excused delay in performance may not exceed the duration of the Unavoidable Delay. Section 4.6. Construction Reports. During construction the Redeveloper shall make reports at such times and in such detail as may be reasonably requested by the HRA concerning the progress of construction. Section 4.7. Certificate of Completion. Promptly after notification by the Redeveloper of completion of any Component of the Minimum Improvements .contemplated by the Concept Plans, the HRA shall inspect the construction to determine whether the Minimum Improvements for that Component are completed substantially in accordance with the terms of this Agreement. If so, and if all relevant final approvals have been obtained from the City on matters of platting, zoning, off-street parking, signage, drainage and landscaping for the portion of the Redevelopment Property to which the notification relates, it will furnish the Redeveloper with a Certificate of Completion for such Component. Such certification by the HRA shall, except as -26- further provided in this Section 4.7, be a conclusive determination of satisfaction and termination of the agreements and covenants in this Agreement, with respect to the obligations of the Redeveloper to construct the Mimmum Improvements for that Component. The certification provided for in this section shall be in recordable form. If the HRA shall refuse or fail to provide the Redeveloper a certification in accordance with the provisions of this Section 4.7, the HRA shall, within thirty (30) days after written request by the Redeveloper, provide the Redeveloper with a written statement, indicating in adequate detail in what respects the Redeveloper has failed to complete the Minimum Improvements in accordance with the provisions of this Agreement, or are otherwise in default, and what measures or acts it will be necessary, in the reasonable opinion of the HRA, for the Redeveloper to take or perform in order to obtain such certification. ARTICLE V PUBLIC IMPROVEMENTS Section 5.1 The HRA and the Redeveloper have agreed on the design elements, construction timing and financial responsibility for the public improvements that will be constructed in connection with the Development. Those agreements have been or will be incorporated in a separate subdivision agreement between the City and the Redeveloper. ARTICLE VI CASUALTY LOSSES Section 6.1 The Redeveloper agrees to notify the HRA in the case of damage exceeding $100,000 in amount to, or destruction of, the Minimum Improvements or any portion thereof resulting from fire or other casualty. In the event of any such damage which reduces the Available Tax Increment below the amount necessary to make debt service payments on the Bonds, the Redeveloper will forthwith repair, reconstruct and restore the Improvements to substantially the same or an improved condition or value as existed prior to the event causing such damage; provided, however, that the Redeveloper's obligation to repair, reconstruct or restore the Residential Component, or portions thereof, shall terminate at the time that the Redeveloper transfers title to the Residential Component, or portions thereof to third party purchasers. • 8 -27- ARTICLE VII TAX INCREMENT• SITE COSTS Section 7.1. Site Costs. In order to assist the Redeveloper in its development of the Minimum Improvements, the HRA is willing to use Tax Increment to finance the payment of certain costs of acquiring and preparing the Redevelopment Property for development (the "Site Costs"). The Site Costs consist of costs that are legally eligible for payment using Tax Increment and are currently anticipated to be the following costs incurred by the Redeveloper: costs of land acquisition, site preparation, and costs of the public improvements described in Section 5.1. The Site Costs will be paid using the net proceeds of the Bonds and through payments made under the Notes. The issuance of the Bonds and the Notes will be authorized pursuant to a resolution to be adopted by the HRA. The HRA and the Redeveloper understand that the Bonds and the Notes will be issued in accordance with the following terms: (a) The Series A Bonds will be tax exempt tax increment revenue bonds in the estimated original principal amount of $1,740,000 (estimated net proceeds of $1,216,000). The Series A Bonds will be sold to third parties by an underwriter selected by the Redeveloper. (b) The Series B Bonds will be taxable tax increment revenue bonds in the estimated original principal amount of $1,750,000 (estimated net proceeds of $1,312,000). The Series B Bonds will be sold to third parties by an underwriter selected by the Redeveloper. (c} The Note will be a tax increment revenue note issued by the HRA to the Redeveloper. The aggregate original principal amount of the Note will be the difference between the combined net proceeds of the Series A Bonds and the Series B Bonds and $2,840,000. For purposes of this subsection the "net proceeds" of the Bonds means the principal amount of the Bonds less all costs of issuing the Bonds (including underwriter's discount, trustee fees, bond counsel fees, underwriter's counsel's fees and all other costs), capitalized interest, and amounts dedicated to a debt service reserve fund or paid for security enhancements. The Note will bear interest at the rate of 8.5% per year. (c) The Bonds and the Note will be payable over the term of the Tax Increment District and shall be payable solely from Available Tax Increment. On each debt service payment date under the Bonds and the Note Available Tax Increment shall be applied in the following manner: (i) First, to pay the scheduled debt service payment due on the Series A Bonds and any prior delinquent debt service payment on the Series A Bonds. (ii) Second, to pay the scheduled debt service payment due on the Series B Bonds and any prior delinquent debt service payment on the Series B Bonds. (iii) Third, to prepay or defease the Series B Bonds. (v) Fourth, after the Series B Bonds have been prepaid or defeased, to prepay or defease the Series A Bonds. 9 _28_ (vi) Fifth, after the Series A Bonds and the Series B Bonds have been prepaid or defeased, to pay interest due under and the principal amount of the Note. All payments shall be applied first to accrued interest and then to the principal amount of the Note. The Bonds and the Note will be issued on or about , 200_. Except as provided in Section 11.3, the proceeds of the Bonds and payments under and in accordance with the terms of the Notes is the sole and exclusive source of assistance to be provided to the Redeveloper. The HRA's obligation to issue the Bonds and Note is subject to the receipt of an opinion of a nationally-recognized bond counsel selected .by the HRA to the effect that the interest on the Series A Bonds is not includable in the gross income for the purposes of federal income taxation and that the Bonds and Note are valid and binding obligations of the HRA in accordance with their terms. Section 7.2. Redeveloper_Covenants. In connection with the issuance of the Series A Bonds, the Redeveloper agrees that it will take no action, and will not fail to take an action, the effect of which will be to: (a) cause the Series A Bonds to be determined to be "private activity Bonds" (as such term is defined in Section 141 of the Internal Revenue Code of 1986, as amended (the "Code") and in applicable Treasury Regulations promulgated pursuant to the applicable Code provisions (the "Regulations"); (b) cause the "private security or payment test" or the "private loan fmancing test" (as such terms are defined in Section 141 of the Code and in applicable Regulations) to be satisfied with respect to the Series A Bonds; (c) cause the Series A Bonds to be determined to the "arbitrage bonds" (as such term is defined in Section 148 of the Code and in applicable regulations); or (d) cause interest on the Series A Bonds to be includable in gross income for federal income tax purposes. ARTICLE VIII FINANCING Section 8.1. Limitations Upon Encumbrance. Prior to the completion of the Minimum Improvements for any Component, as certified by the HRA pursuant to Section 4.7 of this Agreement, neither the Redeveloper nor any successor in interest to the Redevelopment Property or any part thereof shall, without the consent of the HRA, engage in any financing or any other transaction creating any mortgage or other encumbrance or lien upon the Redevelopment Property or any part thereof, whether by express agreement or operation of law, or suffer any encumbrance or lien to be made on or attached to the Redevelopment Property or any part thereof, except only for the purpose of obtaining funds to the extent necessary for developing the Minimum Improvements for such Component. Section 8.2. Copy of Notice of Default to Lender. Prior to the issuance of a Certificate of Completion, whenever the HRA shall deliver any notice or demand to the Redeveloper with 10 -29- respect to any breach or default by the Redeveloper in its obligations under this Agreement, the HRA shall at the same time forward a copy of such notice or demand to each holder ("Holder") known to the HRA of any mortgage or other financing agreement authorized by this Agreement by sending such notice to last known address of the Holder as shown in the records of the HRA. Section 8.3. Lender's Option to Cure Defaults. After any breach or event of default referred to in Section 10.1 hereof, each Holder shall (insofar as the rights of the HRA are concerned) have the right for a period of ninety (90) days, at the Holder's option, to cure or remedy such breach or event of default to the. extent that it relates to the part of the Redevelopment Property covered by its financing and to add the cost thereof to the debt and the lien of its fmancing, provided, that if the breach or event of default is with .respect to construction of the Minimum Improvements, nothing contained in this Section or any other section of this Agreement shall be deemed to permit or authorize such Holder, either before or after foreclosure or action in lieu thereof, to undertake or continue the construction or completion of the Minimum Improvements (beyond the extent necessary to conserve or protect such Improvements or construction already made) without first having acknowledged that the Property is subject to the Redeveloper's obligations described in Section 10.2 hereof by written agreement reasonably satisfactory to the HRA to complete the Minimum Improvements or the part thereof to which the lien or title of such holder relates, provided further, however, that the HRA will not unreasonably withhold its consent to any changes in the Minimum Improvements which are requested by the Holder if the requested changes do not alter the basic design of the Minimum Improvements or result in a decrease of the market value of such Minimum Improvements. (It being understood that such consent shall in no way act to bind or influence the power of the HRA, in the exercise of its governmental authority not to approve any proposed changes or alterations to the Minimum Improvements. Any such Holder who shall perform the Redeveloper's obligations under Section 4.6 hereof, relating to the Redevelopment Property or applicable part thereof, shall be entitled, upon written request made to the HRA, to a certification by the HRA to such effect in the manner provided in Section 4.8 of this Agreement. Section 8.4. HRA's Option to Cure Default. Prior to the issuance of a Certificate of Completion, if the Redeveloper is in default under any financing authorized pursuant to Article VIII of this Agreement, the Holder, prior to exercising any of its remedies, shall notify the HRA in writing by sending it a copy of any notice of default sent to the Redeveloper. If, within thirty (30) days after receipt of said notice, the HRA cures the default, then the Holder shall pursue none of its remedies under the financing based upon the said default of the Redeveloper. Section 8.5 Subordination. In order to facilitate the obtaining of construction or permanent financing by the Redeveloper, the HRA agrees to consent to the assignment of this Agreement and a Note or Notes, and to subordinate its rights under this Agreement to the Mortgage evidencing any such construction or permanent financing so long as such subordination will not be deemed to permit development contrary to the land use approvals that have been granted by the City for the Redevelopment Property. The Authority also agrees to make reasonable modifications to this Agreement so long as such modifications do not render the Authority less secure, increase or create any financial risk, or alter the manner to review modifications to the Concept Plan. • 11 -30- ARTICLE IX PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER Section 9.1. Representation as to Development. The Redeveloper represents and agrees that its undertaking pursuant to this Agreement are, and will be used, for the purpose of development of the Redevelopment Property and not for speculation in land holding. The Redeveloper further recognizes that, in view of (a) the importance of the development of the Redevelopment Property to the general welfare of the community; and (b) the substantial financing and other public aids that have been made available by the City and the HRA, for the purpose of making such development possible; that the qualifications and identify of the Redeveloper are of particular concern to the community and the HRA. Any significant change with respect to the identify of the Redeveloper or the purchase of Redeveloper's interest by any other party or parties is for practical purposes a transfer or disposition of the property then owned by the Redeveloper, the Redeveloper further recognizes that it is because of such qualifications and identify that the HRA is entering into this Agreement with the Redeveloper and, in so doing, is further willing to accept and rely on the obligations of the Redeveloper for the faithful performance of all undertakings and covenants hereby then to be performed. Section 9.2. [Blank]. Section 9.3. Prohibition Against Transfer of Property and Assignment of Agreement. For the foregoing reasons, the Redeveloper represents and agrees that: 1. 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 thereof, to perform its obligations with respect to making the Minimum Improvements upon any Component under this Agreement, and any other purpose authorized by this Agreement, prior to the completion of construction of the Minimum Improvements for any Component, the Redeveloper (except as so authorized) has not made or created, and that it will not make or create, or suffer to be made or created, any total or partial sale, assignment, conveyance, or any trust or power, or transfer in any other mode or form of or with respect to such Component or this Agreement as it relates to Such Component or any part thereof or any interest therein, or any contract or agreement to do any of the same, without the prior written approval of the HRA. 2. The HRA shall be entitled to require, except as otherwise provided in this Agreement, as conditions to any such transfer that: (i) any proposed transferee shall have the qualifications and financial responsibility, as determined by the HRA, necessary and adequate to fulfill the obligations undertaken in this Agreement by the Redeveloper (or, in the event the transfer is of or relates to a Component, such obligations to the extent that they relate to such Component); (ii) any proposed transferee, by instrument in writing satisfactory to the HRA and in form recordable among the land records, shall for itself and its successors and assigns, and expressly for the benefit of the HRA, have expressly assumed all of the obligations of the Redeveloper under this Agreement (or, in the event the transfer is of or relates to a Component, such obligations„ conditions, and 12 -31- restrictions to the extent that they relate to such Component); provided, that the fact that any transferee of, or any other successor in interest whatsoever the reason, shall have assumed such obligations or agreed, shall not (unless and only to the extent otherwise specifically provided in this Agreement or agreed to in writing by the HRA) relieve or except such transferee or successor of or from such obligations, conditions, or restrictions, or deprive or limit the HRA or with respect to any rights or remedies or controls with respect to the Redevelopment Property or the construction of the Minimum Improvements; it being the intent of this, together with other provisions of this Agreement, that (to the fullest extent permitted by law and equity and excepting only in the manner and to the extent specifically provided otherwise in this Agreement) no transfer of, or change with respect to, ownership in the Redevelopment Property or any Component, of any interest therein, however consummated or occurring, and .whether voluntary or involuntary, shall operate, legally or practically, to deprive or limit the HRA of or with respect to any rights or remedies or controls provided in or resulting from this Agreement with respect to the Property and the construction of the Minimum Improvements that the HRA would have had, had there been no such transfer or change; (iii) there shall be submitted to the HRA for review all instruments and other legal documents involved in effecting transfer, and if approved by the HRA its approval shall be indicated to the Redeveloper in writing. 3. Notwithstanding the prohibitions against transfer contained in this section, the Redeveloper shall have the right to transfer ownership interests in the Redeveloper, this Agreement, or any Component of the Redevelopment Property to any entity or entities that are either controlled by the Redeveloper or by any corporation or individual that has a controlling interest in the Redeveloper. 4. In the absence of specific written agreement by the HRA to the contrary, no such transfer or approval by the HRA thereof shall be deemed to relieve the Redeveloper, or any other party bound in any way by this Agreement or otherwise with respect to the construction of the Minimum Improvements on such Component, or from any of its obligations with respect thereto. The HRA may, however, in its reasonable discretion exercised in accordance with the standards and requirements of Section 9.3(02) relieve Redeveloper if they present a transferee or assignee acceptable to the HRA. Section 9.4. Transfer of Commercial Component. The HRA hereby consents to an assignment of this Agreement as it relates to the Commercial Component and a transfer of that portion of the Redevelopment Property on which the Commercial Component will be built to Mound Marketplace LLC, a Minnesota limited liability company (the "Commercial Component Redeveloper"), subject to the Commercial Component Redeveloper's execution of an assignment and assumption agreement by which the Commercial Component Redeveloper assumes and agrees to perform the Redeveloper's obligations under this Agreement with respect to the Commercial Component. After execution of such assignment and assumption agreement the Redeveloper shall have no responsibility or liability with respect to the construction or operation of the Commercial Component and the Commercial Component Developer shall have no responsibility or liability with respect to the construction or operation of the Residential Component. 13 -32- Section 9.5. Approvals. Any approval required to be given by the HRA under this Article IX of this Agreement may be denied only in the event that the HRA reasonably determines that the performance of the obligations of Redeveloper under this Agreement will be materially impaired by the action for which approval is sought. At the HRA's request, the Redeveloper shall provide to the HRA's attorney for privileged review on behalf of the HRA financial information as to any proposed general partners, or controlling stockholders of proposed assignees or transferees, and financial information as to any such partnership or corporation. Section 9.6. Release and Indemnification Covenants. (a) The Redeveloper releases from and covenants and agrees that the HRA and the governing body members, officers, agents, servants and employees thereof shall not be liable for and agrees to indemnify and hold harmless the HRA 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, except those, if any, caused or occasioned by any act or neglect of the HRA, or its officers, agents, employees or representatives. (b) Except for any willful misrepresentation or any willful or wanton misconduct or negligence of the following named parties, the Redeveloper agrees to protect and defend the HRA and the governing body members, officers, agents, servants and employees thereof, now or forever, and 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. (c) Except where arising from the negligent act or omission of the HRA and the governing body members, officers, agents, servants and employees thereof shall not be liable for any damage or injury to the persons or property of the Redeveloper or its officers, agents, servants or employees or any other person who may be about the Redevelopment Property, Minimum Improvements due to any act of negligence of any person. (d) All covenants, stipulations, promises, agreements and obligations of the HRA contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the HRA and not of any governing body member, officer, agent, servant or employee of the HRA in the individual capacity thereof. (e) Notwithstanding anything to the contrary in this Agreement, the HRA shall have no right to enforce, and the Redeveloper shall have no obligation to take any actions or make any payments, under paragraphs (a), (b), and (c) of this Section 9.6 unless and to the extent that the HRA shall have received an opinion of . nationally-recognized bond counsel selected by the HRA to the effect that the receipt by the HRA of such payment will not cause the interest on the Series A 14 -33- Bonds to become includable in gross income of the holder thereof for purposes of federal income taxation. ARTICLE X EVENTS OF DEFAULT Section 10.1. 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 (unless the context otherwise provides), any one or more of the following events: a. Failure by the Redeveloper or the HRA to pay when due any payments required to be paid or performing any actions required to be performed under this Agreement. b. Subject to Unavoidable Delay, failure by the Redeveloper or the HRA to observe and substantially perform any covenant, conditions, obligation, or agreement on its part to be observed or performed hereunder. c. If the Redeveloper shall admit in writing its inability to pay its debts generally as they become due, or shall file a petition in bankruptcy, or shall make an assignment for the benefit of creditors, or shall consent to the appointment of a receiver of themselves or of the whole or any substantial part of the Redeveloper Property. d. If the Redeveloper shall file a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws. If the Redeveloper, on a petition in bankruptcy filed against it, be adjudicated a bankrupt, or a court of competent jurisdiction shall enter an order of decree appointing, without the consent of Redeveloper, a receiver of Redeveloper or of the whole or substantially all of its property, or approve a petition filed against Redeveloper seeking reorganization or arrangement of Redeveloper under bankruptcy laws, and such adjudication, order, or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of entry thereof. Section 10.2. Remedies on Default. Whenever any Event of Default referred to in Section 10.1 of this Agreement occurs, the non defaulting party may, in addition to any other remedies or rights given it under this Agreement, but only after at least thirty (30) days notice to the defaulting party, and its failure to cure (unless a longer cure period is provided with respect to specific defaults under this Agreement) or such longer cure period if reasonably required and the actions to cure have been commenced within such 30-day period, find the defaulting parry in default (Default) and take any one or more of the following actions: 1. Suspend its performance under this Agreement, but not under the Note or Bonds until it receives assurances from the defaulting party or mortgagee reasonably deemed adequate by the non defaulting party, that the defaulting parry will cure the default and continue performance under the Agreement. 15 -34- 2. Withhold the Certificate of Completion if the Event of Default relates to the failure of the Redeveloper to complete the improvements as provided in .this Agreement. 3. Subject to the limitations stated in Article III take whatever action at law or in equity may appear necessary or desirable to the non defaulting party to collect any payments due under this Agreement, or to enforce performance and observance of any obligation, agreement or covenant of the defaulting party under .this Agreement. Provided, however, that any exercise by the HRA, its successors or assigns, of its right or remedies hereunder shall always be subject to and limited by, and shall not defeat, render invalid or limit in any way (a) the lien of any mortgage authorized by this Agreement and (b) any rights or interests provided in this Agreement for the protection of the Holder of such mortgages; and provided further that if a default by the Redeveloper relates to only one of the Components, any remedy available to the HRA shall be exercised only as to that Component. Section 10.2.1. [BLANK] Section 10.3. No Remedy Exclusive. Except as provided in Article III, no remedy herein conferred upon or reserved to the parties . is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. Except as provided in Section 10.4 of this Agreement, no delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the HRA 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 X. Section 10.4. No Additional Waiver Implied by One Waiver. In the event any obligation 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 concurrent, previous or subsequent breach hereunder. ARTICLE XI ADDITIONAL PROVISIONS Section 1 l.l. Conflict of Interests; HRA Representatives, Redeveloper Not Individually Liable. Every member, official, or employee of the HRA shall fully comply with the provisions of the Act relating to conflicts of interest. No member, official, or employee of the HRA or the Redeveloper shall be personally liable to the Redeveloper or the HRA respectively, or any successor in interest, in the event of any default or breach by the HRA or Redeveloper or for any amount which may become due to the Redeveloper or HRA or successor or on any obligations under the terms of the Agreement. 16 -35- Section 11.2. Nondiscrimination. The provisions. of Minnesota Statutes Section 181.59, which relate to civil rights and nondiscrimination, shall be considered a part of this Agreement as though fully set forth herein. Section 11.3. Changes in Tax Increment. The Redeveloper and the HRA understand that reductions in the amount of Available Tax Increment below the amounts currently anticipated to be generated would adversely affect the long term viability of Development. Therefore, the HRA agrees that if, due to events beyond the control of the Redeveloper, including, without limitation, legal or legislative action, the amount of Available Tax Increment is substantially reduced below the amounts currently estimated, the HRA will act in good faith, in cooperation with the Redeveloper, to seek secure alternative sources to make up the, shortfall in Available Tax Increment. One possible source would be to qualify the Redevelopment Property for tax abatement treatment in accordance with the. provisions of Minnesota Statutes §§469.1812 to 469.1815. The HRA's decision to provide alternative sources of funding to make up deficiencies in Available Tax Increment rests in the discretion of the HRA. Section 11.4. Notice of Status and Conformance. The HRA agrees that from time to time, upon not less than ten (10) days' prior written notice by Redeveloper, to execute, acknowledge and deliver, without charge, to Redeveloper or to any person designated by Redeveloper, a statement in writing certifying, to the extent true, that this Agreement is unmodified, the principal amount of any obligation herein created then unpaid, that the HRA has not received any notice of default, that to the knowledge of the HRA has not received any notice of default, that to the knowledge of the HRA no event of default exists hereunder (or if any such event of default does exist, specifying the same and stating that the same has been cured, if such be the case), that the HRA to its knowledge, has no claims against the Redeveloper hereunder, and any other information reasonably requested by the Redeveloper. It is the intention of this Section 11.4 to provide a mechanism for obtaining estoppel certificates which may be requested by Redeveloper's mortgagee. Section 11.5. 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 it if is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally: As to the HRA: Housing and Redevelopment Authority 5341 Maywood Road Mound, MN 55364 Attention: Executive Director As to the Redeveloper: MetroPlains Development LLC Suite 212 Spruce Tree Centre St Paul, MN 55104 Attention: Lawrence W. Olson 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. 17 -36- Section 11.6. Counterparts. This Agreement may be simultaneously executed in any number of counterparts, all of which shall constitute one and the same instrument. Section 11.7. Prior Agreement. This Agreement is intended to restate and to supercede in all respects the terms of the Prior Agreement. Section 11.8 Business Subsidy Agreement. Assistance payable to the Redeveloper under this agreement which also meets the definition of a business subsidy under the Minnesota Business Subsidy Act, (Minnesota Statutes Section 116J.993 to 116J.995) shall not be paid until the parties have entered into a Business Subsidy Agreement. Section 11.9. Payment of Administrative Costs. At the time of execution and delivery of the Prior Agreement, the Redeveloper deposited with the HRA the sum of $15,000. The deposit was drawn upon in payment of the Administrative Costs, which for the purpose of this section, shall mean the value of out of pocket costs incurred by the HRA attributable to and incurred in connection with the drafting and negotiation of this agreement. The deposit constitutes the Redeveloper's entire obligation to pay such costs. The HRA will give the Redeveloper an itemized accounting showing the draws made on the deposit. Unused portions of the deposit, if any, will be returned to the Redeveloper at the time of such accounting. • 18 -37- IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the day and year first above written. THE HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF MOUND, MINNESOTA By: Its: By: Its: Executive Director METROPLAINS DEVELOPMENT LLC, a Minnesota limited liability company By: STATE OF MINNESOTA ss.: COUNTY OF HENNEPIN Its President The foregoing instrument was acknowledged before me this day of , 2001, by and ,the Chairperson and Executive Director of The Housing and Redevelopment Authority in and for the City of Mound, Minnesota. Notary Public STATE OF MINNESOTA ss.. COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this day of , 2001, by ,the President of MetroPlains Development LLC, a Minnesota limited liability company, on behalf of the company. Notary Public s 19 -38- EXHIBIT A REDEVELOPMENT PROPERTY Legal Description DESCRIPTION Use New Platted Legal Description • • A-1 -39- • EXHIBIT B CERTIFICATE OF COMPLETION Example The undersigned hereby certifies that MetroPlains Development LLC., a Minnesota limited liability company, has fully and completely complied with its obligations under Article IV of that document entitled "Contract for Private Development," dated , 2000, between The Housing and Redevelopment Authority in and for the City of Mound, and MetroPlains Development LLC, a Minnesota limited liability company, with respect to construction of the Minimum Improvements for the Component located on the tract of land described in the attached Exhibit A in accordance with the requirements of such document and is released and forever discharged from its obligations to construction the Minimum Improvements on such Component under such above-referenced Article on the above-referenced tract. DATED: HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF MOUND By Its Chairperson By Its Executive Director s-i -40- DRAFT Revised by RAW - 1/2/02 CONTRACT FOR PRIVATE REDEVELOPMENT B3~ AND BETWEEN THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF MOUND AND GRAMERCY CORPORATION 2002 This document was drafted by: Kennedy & Graven, Chartered (JBD) 4'70 Pillsbury Center 200 South Sixth- Street Minneapolis, NIN 55402 HC26DS4/ 471 51 26553034.x2 1/412003 • • -41- TABLE of CoNTENTs ARTICLE I DEFINITIONS, EXHIBITS RULES OF INTERPRETATION ....................... 6 Section 1.1. Definitions .................................................................................................. 6 Section 1.2. Exhibits ..................................................:....................................................8 ARTICLE II REPRESENTATIONS ..................................................................:................... 9 Section 2.1. Representations by the Redeveloner ............................................................ 9 Section 2.2. Representations b~HRA ...........................................................................10 ARTICLE III ACQUISITION AND CONVEYANCE OF DEVELOPMENT PROPERTY; PUBLIC IMPROVEMENTS ...............................10 Section 3.0. Initial Period .............................................................................................10 Section 3.1. Statement of Intent ....................................................................................11 Section 3.2. Acquisition ................................................................................................ l l Section 3.3. R~l~~st to Condemn .................................................................................11 Section 3.4. HRA Decision ..........................................................................................11 Section 3.5. Securi .....................................................................................................12 Section 3.6. Intentionally omitted .................................................................................12 Section 3.7. Additional Conditions to HRA Obli a~ tion .................................................12 Section 3.8. Consultation. with Redeveloper .................................................................13 Section 3.9. Dscontinuation .........................................................................................14 Section 3.10. Redeveloper LiabilitkPrior To HRA Acquiring Title ...........................:..15 Section 3.11. Redeveloper Liabili~ After HRA Has Acquired Title .............................15 ARTICLE IV CONSTRUCTION OF MIlVIMUM IMPROVEMENTS .............................15 Section 4.1. Asrreement to Construct .:..........................................................................15 Section 4.2. Demolition ................................................................................................15 Section 4.2.1. Intentionally omitted ..............................................................................15 Section 4.3. Soil Correction -Contamination ................................................................15 Section 4.4. Concept Plans ..........................................................................................16 Section 4.5. Commencement and Completion of Construction ......................................16 2 xc2ensa~ a~~si z6sssosa.~2 vanooz -42- Section 4.8. Const~ctic~n Reports ...........................:....................................................16 Section 4:7. certificate of Cq~pieton .........................................................................16 ARTICLE V PUBLIC Il~iPROVEMENTS ......................................................:.::................17 Section 5.1 lic I -rovements .................................................................................17 ARTICLE VI ELECTION BY REDEVELOPER TO PROCEED WITH COMPONENTS TWO AND THREE ::.:.................:.::..............................................17 Section 6.1. election to Proceed With !Con~,ponent Two 17 Section 6:2. Election to Proceed With Component Three ..............................................18 ARTICLE VII TAX INCREMENT ...................................................................................... 20 Section 7.1. bevel of Assistance. Reevaluation ...................:......................................... 20 Section 7.2. Note Delivery. at Closins ........................................................................... 20 Section 7.3. Delay of P~yments ...:................................................................................ 20 ARTICLE VIII FINANCING ............................................................................................... 21 Section 8.1. Lrnitation~ Unon Encumbrance ................................................................ 21 Section II.2. SPY of Notice of Default to Lender ...................................................:..... 21 Section 8.3. Lender's Option to Cure Defaults ............................................................. 21 Section 8.4. HRA's Option to Cure Default ................................................................... 22 Section 8.5 Subordination ..........................:.................................................................. 22 ARTICLE IX PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER ................................................................................................................. 22 Section 9.1. Representation as to Development ......................................: ...................... 22 Section 9:2. LANI ..................................................................................................22 Section 9.3. Prohibi ion ~ainst Transfer of Proper y and Assignment of Aareement ......................................................................................................... 22 Section 9.4. LANK .................................................................................................23 Section 9.5. r vals :................................................................................................23 ARTICLE !~ EVENTS OF DEFAULT .. ............................................................................ 23 Section 10.1. Events.. of Default Defined ....................................................................... 23 3 HC26DS4/ 4715/ 26553034.x2 1/4/2002 -43- Section 10.2. Remedies on Default .............................................................:................. Section 10.2.1. h vel t e P o' 'th .............................................. 25 Ri,~ t ~ Ue ~,~ h r 1_ Section-10.3. No Rem~yly Exclusive .. ..................................... ............................. 25 Section 10.4. No Ac,~dtional Waiver Irn.~led bkOne Waiver ....................................... 25 ARTICLE XI ADI)ITIQNAL PRO~ISIONS ....................................................................... 26 Section 1.1.1. Conflict. of Interests ................................................................................ 2b Section 11.2. Nondiscrimination ..................................................................................26 Section 11.3. Release and Indemnification Covenants .................................................. 26 Section 11.4. Notice of Status and Conformance .......................................................... 27 Section 11.5. Notices and .Demands .............................................................................. 27 Section 11.6. Gounter~art .................................................................... ...................28 Section 11.T. ParkingEasement ....................................................................................28 Section 11.8. Business Subsidy eement ...................................................................29 Section 11.9. Payment of Administrative Costs ............................................................ 29 Section 11.10. Extensions .............................................................................................29 EXHIBI'T' A ...............................................................................................................................1 EXHIBIT B ..............................................................:................................................................ 2 EXHIBIT C ...............................................................................................................................1 EXHIBIT I) ............................................................................................................................... 2 • 4 HC26DS4/ 415/ 26553034.x2 1/4/2002 -44- CONTRACT F4It PRIVATE DEVELOPII~IENT THIS AGREEMENT, made and entered into this day of , 2002, is by and between THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF MOUND, MINNESOTA, a Minnesota public body corporate and politic (the "HRA"), and, GRAMERCY CORPORATION, a Minnesota corporation, (the "Redeveloper"). WI'][NESSETH: WHEREAS, the City of Mound and HRA have established Development District No. 1 "Project Area") under the. authority of Minnesota Statutes, Chapter 469 (the "Act"), and in accordance with the pr-ovtsions of this Agreement has established within the Project Area the Tax Increment Financing District No. 1-2 ("TIF District") and adopted a Tax Increment Financing Plan ("hereinafter defined as the "Tax Increment Plan") for the TIF District to facilitate the f nancing of public development and redevelopment costs in the Project Area; and WHEREAS, the HRA deems it to be in the public interest to facilitate and encourage redevelopment of the Project Area by a combination of public and private activity within the Project Area and in accordance with the Tax Increment Plan as adopted by the City; and • WHEREAS, the Redeveloper has proposed a development (hereinafter defined as the "Development") within such Project Area which the HRA believes will promote and carry out the objectives for which redevelopment is undertaken, will be in the vital best interests of the City, will promote the health, safety, morals, and welfare of its residents and will be in accord with the public purposes and provisions of the applicable state and local laws and requirements under which activities within the Project Area have been undertaken and are being assisted; and WHEREAS, the Redeveloper is willing to purchase property within the Project Area such property being legally described in the attached Exhibit A (hereinafter defined as the "Redevelopment Property") and to develop the Redevelopment Property in phases at its election as herein provided more particularly described in Article VI hereof for and in accordance with this Agreement; and WHEREAS, consistent with the Tax Increment Plan, the HRA is willing to provide financial assistance in accordance with the provisions of this Agreement; NOW, TI~REFORE, in consideration of the premises and mutual obligations of the parties contained herein., each of them does hereby represent, covenant and agree with the others as follows: 5 xca.~sa a~isi abssso3a.~z ~ia2oo2 • -45- ARTICLE I DEFINITIONS, EXITS RULES OF INTERPRETATION Section l.i. Definitions. In this Agreement, unless a different meaning clearly appears from the context: "Act" means the Economic Development Act, located at Minnesota Statutes, Chapter 469, as amended. "Agreement" means this Agreement, as the same may be from time to time modified, amended, or supplemented. "Certificate of Completion" means the certification, in the form of the certificate contained in Exhibit C attached to and made a part of this Agreement, provided to the Redeveloper upon the completion of any Component, pursuant to Section 4.7 of this Agreement. "City" means the City ofMound. "Closing" means, as to any Component, the date on which the Note for that Component and title to property acquired by the HRA within that Component is transferred to the Redeveloper: "Commencement of Construction" means as to any Component, excavation for the purpose of setting footings or foundation. "Completion of Construction" means the completion of construction of a Component of the Minimum Improvements except for finish work. "Component One" means the portion of the Redevelopment Property shown on Exhibit as such and which is located within a portion of the Lake Langdon Area. "Component One Minimum- Improvements" means the Minimum Improvements to be constructed within Component One, and consisting of a residential development all as depicted and described as such in the Concept Plan. " Component Two" means the portion of the Redevelopment Property shown on Exhibit _ as such and wlueh is located within a portion of the Auditor's Road Area. "Component Two Minimum Improvements" means the Minimum Improvements to be constructed within Component Two, consisting of a residential development all. as depicted and described as such in the Concept Plan. "Component Three" means the -onion of the Redevelo ment Property shown on Exhibit P P 6 HC26DS4/ 4713/ 26333034.x2 1/4/2002 -46- _ as such and which is located along Commerce Boulevard within portions of the Auditor's Road Area and the Lake Langdon Area. "Component Three Minimum Improvements" means, the Minimum Improvements to be constructed within Component Three and consisting of a retail development all as depicted and described as such in the Concept Plan. "Components" means all the Components. "Concept Plans" mean the plans, drawings and narrative descriptions for the Minimum Improvements, including, without limitation a stormwater detention pond of sufficient capacity ater from additional areas as required by the to accommodate on-site stormwater and stormw ~, City. "Construction Contract" means a contract or contracts which provides for completion of the Minimum Improvements. "County" means the County of Hennepin. "Development" means the Minimum Improvements to be constructed- on various portions of the Redevelopment Property, together with the other improvements and site work shown and described in the Concept Plan. "Event of Default" means an action by the Redeveloper, or I3RA, listed in Section 10.1 of this Agreement. "HRA" means the Housing and Redevelopment Authority in and for the City of Mound, Minnesota. "Minimum Improvements" means the improvements to be constructed by Redeveloper on the Redevelopment Property. The Minimum Improvements are generally described and depicted on the Concept Plan. "Minnesota Environmental Policy Act" means the statutes located at Minnesota Statutes Sections 116D.01 et seq:, as amended. "Minnesota Environmental Rights Act" means the statutes located at Minnesota Statutes Sections 116B.01 et seq., as amended. "National Environmental Policy Act" means the federal law located at 42 U.S.C. Section 4311 et seq., as amended. "Note" means a Limted'Revenue Tax Increment Note to be executed and delivered in the form set forth on Exhibit B, pursuant to Sections 7.1. It is anticipated that a separate Note will be issued with respect to each of the Components. 7 HC26DS4/ 4715/ 26553034.v2 1/4/2002 -47- "Redeveloper" means Gramercy Corporation, a Minnesota corporation.. "Redevelopment Property" or "Property" means the real property described as such on Exhibit A of this Agreement. "Site Costs" means costs and expenses incurred by the Redeveloper, as certified by the HRA's financial consultant, which qualify for reimbursement under the Tax Increment Plan. "State" means- the State of Minnesota. "Tax Increment" means that portion of the real property taxes which is paid with respect to the Redevelopment Property which is remitted to the HRA as Tax Increment pursuant to the Tax Increment Plan, after reduction (if any) of fiscal disparities' contributions and other deductions which are mandated by state law to be made with respect to any parcel. "Tax Increment Act" means the statutes located at Minnesota Statutes Section 469.174 through 469.179, of the Economic Development Act. "Tax Increment Plan" means the tax increment financing plan adopted by the City in connection with the creation of the Tax Increment District and as such may be modified and amended from time to time. "Tax O~ciai" means any City or county assessor; County auditor; City, 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 Delays" means unexpected delays which are the direct result of adverse weather conditions, shortages of materials, strikes, other labor troubles, fire or other casualty to the Minimum Improvements, litigation commenced by third parties which, by injunction or other judicial action, directly results in delays, or acts of any federal, state or local governmental unit other than those provided for under this Agreement or any other cause or force majeure beyond the control of Redeveloper which directly results in delays, provided, however, that adverse market conditions or tenant actions affecting the marketability or profitability of the Minimum Improvements, or the inability to secure financing of the Minimum Improvements shall not constitute UnavoidableDelays. - Section 1.2. Exhibits. The following exhibits are attached to and made a part of this Agreement. A. Redevelopment Property Legal Description; B. Form of Limited Revenue Tax Increment Note ("Note"); C, Certificate of Completion; D. Assessment Agreement3 8 HC26DS4/ 4715/ 26553034.v21/4l2002 -48- E. Concept Plan for the Redeveiopnem Property including description of Minimum Improvements for each of the Components. Section 1.3. Mules of Interpretation. (a) This Agreement shall be interpreted in accordance with and governed by the' laws of the State of Minnesota; (b) The words. "herein" and "hereof' and words of similar .importance, without reference to any particular section or subdivision refer to this Agreement as a whole rather than any- particular section or subdivision hereof;. (c) Any titles of the several parts, articles and sections of this -Agreement are inserted for convenience and reference only and shall be disregarded in construing or interpreting any of its. provisions. ARTICLE II REPRESENTATIONS Section 2.1. Representations by the Redeveloper. a The Redeveloper has the power to enter into this Agreement and has duly () authorized the execution, delivery, and performance of this Agreement by proper action. (b) If the conditions precedent to construction occur, the Redeveloper reasonably believes that it has the capability to obtain necessary equity and a financial commitment necessary for construction of the Minimum Improvements. (c) If the conditions precedent to construction occur, including the Redeveloper's election to proceed with Components Two and Three, the Redeveloper will construct the Minimum Improvements described in the Concept Plans in accordance with the terms of this Agreement, the Redevelopment Plan and all local, state and federal laws and regulations. (d) The Redeveloper will exercise all reasonable efforts to obtain, in a timely manner, all required permits, Licenses, and approvals and will meet in a timely manner, all lawful requirements of all local, state, and federal laws and regulations which must be obtained or met before the improvements may be constructed. (e) Redeveloper will comply in all material respects, with all applicable local, state and federal environment laws and regulations, will have obtained- any and all necessary environmental reviews, licenses or clearances under, and will be in material compliance with the applicable requirements of the National 9 HC2~S4/ 4715/ 26353034.v21/4l2002 -49- Environmental Policy Act of 1969, the Minnesota Environmental. Policy Act, and the Critical Area Act of 1973 and any other applicable environmental law or regulation. Redeveloper has not received notice or communication from any local, state or federal official indicating that the activities of Redeveloper may be or will be in violation of any environmental law or regulation. Redeveloper is not aware of any .facts the existence of which would cause the Redeveloper to be in violation of any local, state or federal environmental law, regulation- or review procedure or which would give any person a valid claim under the Minnesota Environmental: Rights Act; (f) The Redeveloper acknowledges that it has relied exclusively upon its own analysis of the potential Tax Increment and/or Available Tax Increment to be generated by the Redevelopment Property and that neither the HRA nor its officers, agents or employees has made any representation or covenant, express or implied, as to the amount of Tax Increment, and/or Available Tax Increment that will be generated by the Redevelopment Property; or that such will be sufficient to make payments under the Notes. The Redeveloper further acknowledges that payments under the Note are the sole source of payments for the- Site Costs described in the Contract. The Redeveloper further acknowledges that the amount of Tax Increment and/or Available Tax Increment may be affected by a variety of factors, including without limitation legislative reductions in property class rates that could reduce the Captured Tax Capacity of the Redevelopment Property, thus reducing the Tax Increment collected by the HRA and the Available Tax Increment pledged to payments on the Note. Section 2.2. Representations by HRA. The H1tA makes the following representations as the basis for the undertakings herein contained. (a) The HRA is authorized by law to enter into this Agreement and to carry out their obligations hereunder. (b) The HRA shall, without expense to it, cooperate in Redeveloper's efforts to obtain all federal, state, and regional agency land use, environmental or other regulatory approvals necessary to implement the Project. ARTICLE IIi ACQUISITION AND CONVEYANCE OF DEVELOPMENT PROPERTY; PUBLIC IMPROVEMENTS Section 3.0. Initial Period. Redeveloper shall have up to 120 days following the execution of this Agreement to complete all soils, environmental, geotechnical and project feasibility reviews as it, in its sole discretion, determines appropriate as to Component One. Redeveloper shall perform its Initial Period reviews as to Component Two and Component Three as provided in Article VI. If at the conclusion of such reviews the Redeveloper determines HC26DSM 4715/ 26353034.x2 1/4/2002 10 -50- not to proceed with Component One,. the Redeveloper shall notify the IiRA of such determination in writing, whereupon the parties shall be relieved of any fwther obligations to each other and this Agreement shall terminate. If the Redeveloper elects not to proceed with Component Two or Component Three, Redeveloper and the HItA shall be relieved of further obligations hereunder as to such Component. Upon such notice, the HRA shall return the remaining portion of the deposit made in accordance with Section 11.9. During such 12U day period, the HRA will not undertake the acquisition of any property, or let any contracts for utility or other infrastructure work that will be paid for by the Redeveloper under this Agreement. Redevelopment Property Section 3.1. Statement of Intent. It is the intention of the parties that the tracts of land which comprise the Property are to be acquired through a combination of direct acquisitions by the Redeveloper (including acquisitions which have been previously commenced by Redeveloper) and acquisitions by the HRA followed by conveyances to the Redeveloper. It is further the intention of the parties that, whenever possible, direct acquisition by the Redeveloper is preferred.. It is further the understanding of the parties that in the acquisition of the Development Property and related activities the obligation of both the fiRA and the Redeveloper shall only be to proceed in good faith and to utilize best efforts. Section 3.2. Acquisition. The Redeveloper agrees to continue and diligently pursue such acquisition activities following the execution of this Agreement as to Component One, and as to Components Two and Three within one hundred twenty (120) days of its election to proceed with those Components. Not later than one hundred twenty (12U) days from the date of this agreement, with respect to the Component One portion of the Redevelopment Property, the Redeveloper shall provide the HRA with. evidence reasonably satisfactory to the IiRA that the Redeveloper has either entered into binding option or purchase agreements or has acquired marketable title to the land within such Component, or notify the HRA that the acquisition will require condemnation pursuant to Section 3.3. Section 3.3. ReAuest to Condemn. The Redeveloper may at any time request the HRA to acquire portions of the Redevelopment Property by eminent domain. The HRA will authorize the acquisition by eminent domain if in its sole discretion it determines that the Redeveloper has made reasonable efforts to acquire the property, has offered what appears to be a fair price for the property and the Redeveloper has agreed- to reimburse the I3RA for ali acquisition and relocation costs, including, without limitation, staff and consultant costs, all fees and costs connected with any condemnation action. The Redeveloper must also agree to pay the HRA at least 10 days in advance of the date due, any damage award, any relocation benefit payment and any deposit required to be made into court in connection with the acquisition of any property. The HRA shall have no obligation to repay such funds received deposited or paid- pursuant to this Agreement should the Development covered by this Agreement not be completed for any reason, other than (i. the failure of the HRA to perform its obligations hereunder, or (ii. to the extent that the funds. are not needed for the purposes they were given. Section 3.4. HRA Decision. If the Redeveloper supplies the items contained in Section 3.3 above, the HRA agrees that it will, in good faith, and following a review and verification of HC26DS4/ 4715/ 26553034.v2 1/4/2W3 11 -51- the same, and following delivery to it of an agreement applicable to the Property in the nature of the agreement described in Section 3.3, undertake the steps necessary to acquire fee simple title to the portions of the Property to which the request relates, and in accordance with Minnesota Statutes, § 117.042 to the extent requested. Section 3.5. SecuritX. As security for Redeveloper's +ablgations under Section 3.3, the Redeveloper shall deposit with the HitA the amount of $23,000. The deposit is a precondition to the HRA's obligation to undertake acquisition activities. The HRA shall be entitled to draw on the deposit to reimburse it for expenditures described in Section 3.3. At any time the remaining balance of the deposit is reduced to $10,000, tho Redeveloper shall, upon 10-days written notice from the HRA return the balance to $25,000. Section 3.6. Intentionallyomitted. Section 3.7. Additional Conditions to HRA Obligation. The obligation of the HRA to make the deposit and obtain title to and possession of any of the parcels that make up the Redevelopment Property shall, unless waived in writing by the HRA, be specifically subject to the following: Redeveloper is not in default of any provisions of this Agreement and all amounts due and payable as provided above in this Section have been paid. 2. Redeveloper has reviewed the condition of title as such is to be acquired by the HRA and notified the HRA in writing that such condition of title is satisfactory. 3. The Redeveloper has provided the HRA with an undertaking in the form of a written agreement, and with security all reasonably acceptable to the HRA which will assure payment by the Redeveloper of: (i) ,any condemnation award for the Property in excess of the previously deposited sums; (ii) any relocation benefits which are not yet paid; (iii) the obligation of Redeveloper provided for in Section 3.3; Such undertaking and security is to remain in affect according to its terms, and in any event, until suitable and adequate substitute security is agreed to by the parties. 4. The Redeveloper has furnished the HRA with written notice, reasonably acceptable to the HRA., indicating that, based upon Redeveloper's own investigation and the completed satisfactory environmental impact study approved- by any and all governmental entities with jurisdiction over the Development Property, Redeveloper is satisfied in ail respects with the nature and condition of the Property, and accepts the same AS IS and WHERE IS. xczensar a7tsi zesssosa.vz va~zooz 12 -52- 5. The HRA is satisfsd that, except in the case of a request to advance a parcel for condemnation, the Redeveloper, or its assignee and/or designee, has obtained, or will be obtaining, fee simple title to any portions of the Property which are not the subject of the condemnation. 6. Redeveloper has furnished the HRA with written evidence reasonably acceptable to the HRA that it has funds, whether in the nature of Equity or Financial Commitment or otherwise which are sufficient for construction of the Minimum Improvements for the applicable Component. 7. Redeveloper has suppl#ed the HRA with a signed written statement, reasonably satisfactory to the HRA, to the effect that, to the best of Redeveloper's knowledge, upon Closing, there will be no remaining matters which would affect the prompt commencement of construction of the Minimum Improvements for the applicable Component and the continuation of construction to complet-ion all in accordance with the schedule for commencement and completion of construction, described in Section 4.3. The statement must also acknowledge that the Redeveloper understands that the HRA is relying on-the statement as a inducement to acquire.. and convey the Property. 8. The HRA has reviewed and approved the Project Plan. 9. The parties have reached written agreement regarding the location and nature and cost of any public improvements to be located on the Development Property. 10. The Redeveloper has furnished the IRA with an agreement acceptable to the HRA whereby the Redeveloper agrees to indemnify and save harmless the HRA, its officers, agents, and employees from any claim, cause, regulatory order or other obligation ensuing out of or occasioned by the placement or introduction by the Redeveloper of any contaminant, pollutant or hazardous substance in, on or under the Property. Section 3.8. Consultation with Redeveloper. The HRA will not institute-any condemnation action without the prior written consent or request of the Redeveloper. The HRA agrees that it will update the Redeveloper or its legal representative from. time to time during. the pendency of any condemnation action, concerning the status; and that it will consult with the Redeveloper regarding significant matters of strategy; and that it will obtain the Redeveloper's prior consent before making or agreeing to make any material stipulation, concession or settlement. Redeveloper agrees to treat material furnished it by the HRA in all such updates, consultations and discussions regarding consent as private within the meaning of Minnesota Statutes, Chapter 13. HC26DS4/ 4715/ 2es5ao3a.v2 1/a/2oo2 13 -53- Section 3.9. Discontinuation. The acquisition of the requested portions of the Property may be discontinued at any time prior to the date that title and possession has passed to the HRA in the event that any of the following- occur: 1. The Redeveloper is in default of any of its obligations under this Agreement or the agreement contemplated in Section 3.3. It is understood that no notice or cure periods are applicable to Article III except as specifically stated herein. 2. The Redeveloper fails to make any payment or deposit with respect to the acquisition of portions of the Property or the payment of relocation benefits therefore. 3. The HRA determines in the exercise of its reasonable judgment that the Redeveloper's obligation to pay for the acquisition of the Property, or to pay relocation benefits is not adequately secured, and the Redeveloper fails, with 30 days of a written request by the HRA to provide security deemed adequate by the HRA. 4. The Redeveloper determines that, due to material adverse market conditions, material adverse soil or environmental conditions, title problems, the inability to acquire all or any portion of the Development Property, or inability to obtain any governmental licenses or approvals necessary for the effective development of the Property, (including, without limitation, vacation of streets lying within the boundaries of the Development Property), following prompt and diligent efforts to obtain the same, proceeding with the Development on the Development Property is not economically or practically feasible. 5. Actions by governmental entities have in the reasonable judgment of the I-iRA and the Redeveloper have placed material physical limitations on the capacity of the Property to be developed as contemplated, and in accordance with the Project Plan. Use of the Minnesota Statutes § 117.042 procedure may be discontinued for the failure of the Redeveloper to make any payment to the HRA to cover a court deposit of the type and within the time period described in Section 3.3. The HRA shall, upon- becoming aware of the reasons stated above and verifying the same with the Redeveloper, and upon thirty (30) days advance written notice to the- Redeveloper and Redeveloper's failure to correct or resolve the reasons giving rise to the HRA's desire to discontinue its acquisition activities within the said thirty (30) day period, discontinue its acquisition activities, and thereafter, the Redeveloper's sole obligation shall be to reimburse the HRA for the actual "out of pocket" costs and expenses incurred by the HRA in connection with its acquisition activities, and to indemnify and save harmless the HRA and the City, their officers, agents and employees and to defend the same from any claim or cause arising out of or occasioned by the discontinuance of such acquisition activities, and the HRA's sole remedy shall be to obtain such reimbursement and indemnity from the Redeveloper. The HRA may utilize any security available to it in this Agreement as security for Redeveloper's obligations under this Paragraph, including, without limitation, security provided by Redeveloper under Section 3.3. HC26DS4I 4715/ 26553034.x2 1/4/2002 14 -54- The HRA agrees that it will accept other security in lieu of the security described in the last paragraph if it determines,. in the exercise of its reasonable judgment, such other security will furnish an adequate level of protection. Section 3.10. Redeveloper Liability Prior TQ HRA Ac~auiring. Title. Notwithstanding anything herein to the contrary, in the event the Redeveloper shall fail or refuse. to perform its obligations under this Agreement, then the HRA,, upon thirty (30) days advance written notice thereof to Redeveloper, ar~d Redeveloper's continued failure or refusal to perform its obligations under this Agreement within said thirty (30) day period, may immediately discontinue its acquisition activities, and thereafter, the Redeveloper's sole obligation shall be: i) to reimburse the HRA for the costs and expenses incurred by the HRA in connection with its acquisition activities; ii) to indemnify and save harmless the HRA and. the City and their officers, agents and employees and to defend the same. from any claim or cause arising out of or occasioned by the discontinuance of such acquisition activities and the HItA's sole remedy shall be to obtain such reimbursement and indemnity from the Redeveloper. Section 3.11. Redeveloper Liability After HRA Has Acquired Title. Once the H1ZA has acquired title and possession to any and all portions of the Development Property (as requested), the Redeveloper shall be obligated unconditionally to comply with all of its obligations hereunder to acquire and develop the Property; and any limitations to the Redeveloper's liability contained in Subd. 4 shall not be applicable. The Redeveloper further agrees to indemnify and save harmless the HRA, the City and their officers, agents and employees from any clairrts or causes arising out of as occasioned by the failure or refusal of the Redeveloper, for any reason, to acquire the said Property following the transfer of title and possession to the H1tA. ARTICLE IV CONSTRUCTION OF MINIMUM IlVIPROVEMENTS Section 4.1. A~eement to Construct. Subject to the acquisition of the Redevelopment Property, the Redeveloper agrees that it will construct the 1ltinimum Improvements in accordance with the approved- Concept Flans, as to Component One; and, as to Components Two and Three, if and when it has elected to proceed- pursuant to Article VI. Section 4.2. Demolition. The Redeveloper shall, at its sole expense, and in accordance with City requirements, raze and remove all structures on Redevelopment Property including, without limitation, any abandoned City utilities and abandoned City or County roadways. Section 4.2.1. Intentionally omitted. Section 4.3. Soil Correction - .Contamination. As between the parties hereto and the City, the Redeveloper shall-have the sole responsibility and subject to reimbursement pursuant to the Notes, bear the cost necessary to make any necessary soil correction or to remedy or otherwise respond to the existence of any contamination or pollution in, on or under the Redevelopment Property. Neither the HRA nor the City has made auy representations HC26DS4/ 4715/ 26553034x2 1/4/2002 15 -55- concerning the. nature of soils, the suitability of such soils for the Minimum Improvements, the existence of contaminants or pollutants, or the cost of corcecting any unsuitable soil conditions, contamination or pollution. Section 4.4. ~once_pt Plans.: Not later than sixty (60) days following the execution of this agreement, the HRA will consider the concept plan for the Development. if the Concept plan is Concept Plan is rejected, either party may terminate this agreement. If the Redeveloper desires to make any change in the Concept Plans that will result in a use change, a change in the expected value of the Minimum Improvements, or a change in the exterior design of the Minimum Improvements or the site, the Redeveloper shall submit the proposed change to the HRA for its approval. If the Concept Plans, as modified by the proposed change, conform to the requirements of this Section with respect to such previously approved Concept Plans, the HRA shall approve the proposed change and notify the Redeveloper in writing of its approval. Such change in the Concept Plans shall, in any event, be deemed approved by the HRA unless rejected, in whole or in part, by written notice by the HRA to the Redeveloper, setting forth in detail the reasons therefor. Such rejection shall be made within twenty (20) days after receipt of the notice of such change. Final construction plans and specifications shall be reviewed by the City .Building Official in connection. with issuance of building permits. No building permit may be issued if the final construction plans and specifications materially depart from the approval Concept Plans. Section 4.5. Commencement and Completion of Construction. Subject to Unavoidable Delays, the Redeveloper shall commence construction of the Component One of Minimum Improvements by not later than one (1) year after agreement with the HRA on matters of design and Public Improvement per Article V, and shall complete construction the of the Component One Minimum Improvements. within one (I) year after commencement: The Redeveloper shall not be considered in breach of, or default in its obligations with respect to the commencement and completion of construction of the Minimum Improvements, if the occurrence of an Unavoidable Delay requires extension of the time or times for performance of the Redeveloper with respect to construction of the Minimum Improvements provided, that the Redeveloper shall, within fifteen {15) days after the beginning of any such Unavoidable Delay, have notified the HRA thereof in writing, and of the cause or causes thereof, and-further provided that the excused delay in performance may not exceed the duration of the Unavoidable Delay, and further provided that such excused delay may not operate to relieve Redeveloper of its obligation to complete within the time period provided for in the Assessment Agreement. Section 4.6. Construction Reports. During construction the Redeveloper shall make reports at such times and in such detail as may be reasonably requested by the HRA concerning the progress of construction. Section 4.7. Certificate of Completion. Promptly after notification by the Redeveloper of completion of any Segment of any Component of the Minimum Improvements contemplated by the Concept Plans,. the I-IRA shall inspect the construction to determine whether the Minimum HC26DS4/ 4715/ 26553034.v2 1/42002 I6 -56- Improvements for that Segment are completed substantially in accordance with the terms of this Agreement. If so, and if all relevant f pal approvals have been obtained from the City on matters of platting, zoning, off-:street parking, signage, drainage and landscaping for tine portion of the Redevelopment Property to which the notification relates, it will furnish the. Redeveloper with a Certificate of Completion for such Segment. Such- certif cation by the HRA shall, except as further provided in this- Section 4.7, be a conclusive determination of satisfaction and termination of the agreements and covenants in this Agreemenrt, with respect to the obligations of the Redeveloper to construct the Minimum Improvements for that Segment. The certification provided for in this section shall be in recordable form. If the HRA shall refuse or fail to provide the Redeveloper a certification in accordance with the provisions of this Section 4.7, the HRA shall, within thirty (3U) days after written. request by the Redeveloper, provide the Redeveloper with a written statement, indicating in adequate detail in what respects the Redeveloper has failed to complete the Minimum Improvements in accordance with the provisions of this Agreement, or are otherwise in default, and what measures or acts it will be necessary, in the reasonable opinion of the l3RA, for the Redeveloper to take or perform in order to obtain such certification. ARTICLE V PUBLIC IlVIPROVEMENTS Section 5.1 Public Improvements. Not later than 12U days following the execution of this Agreement, the parties will endeavor in good faith reach agreement on the design elements, construction timing and financial responsibility (which may include special assessments) for public improvements related to Component One. 1£ such agreement is not reached, then this Agreement for Private Redevelopment shall be null and void, and neither party shall have any further rights or obligations hereunder. ARTICLE VI ELECTION BY REDEVELOPER TO PROCEED WITH COMPONENTS TWO AND THREE Section 6.1. Election to Proceed With Component Two. Within one (1) year after Commencement of Construction of Component One, the Redeveloper shall notify the FiRA in writing as to whether it intends to proceed with the construction of the Minimum Improvements related to Component Two. Tf the Redeveloper does not elect to proceed with the construction of minimum improvements as to Component Two,. neither the Redeveloper nor the City shall have any further rights or obligations under this- Contract for Private Redevelopment, except insofar as such rights or obligations relate to Component One and Three. If the Redeveloper does elect to proceed with the construction of minimum improvements as to Component Two, then: HC26DS4/ 4715! 26553034.x21/4/2002 17 -57- a) Not later than 120 days following the Redeveloper's election to proceed with Component Two, Redeveloper shall perform its Initial Period review as provided in Section 3.0, and the parties will endeavor in good faith to reach an agreement on matters of Public Improvements as prodded in Article V relating to Component Two. If the Redeveloper determines not to proceed based on the Initial Period review as provided in Section 3.0, or if the parties are unable to reach agreement on matters of Public Improvements as provided in Article V, then this Agreement shall be null and-void as to Component Two. b) The Redeveloper shall diligently pwsue acquisition activities relative to Component Two. Not later than one hundred twenty (120) days after its election to proceed with Component Two, the Redeveloper shall provide the HRA with evidence reasonably satisfactory to the HRA that the Redeveloper has entered in to binding option or purchase agreements or has acquired marketable title to the land within Component Two, or request condemnation by the FiRA in accordance with Section 3.3. c) Subject to Unavoidable Delays the Redeveloper shall commence construction of Component Two Minimum Improvements not later than one (1) year after its election to proceed with Component Two and shall complete construction within fifteen (15) months after the commencement of construction. Section 6.2. Election to Proceed With Com4ponent Three. On or before two (2) years after commencement of construction of Component One, the Redeveloper shall notify the HRA in writing as to whether it intends to proceed with the construction of the Minimum Improvements related to Component Three. If the Redeveloper does not elect to proceed with the construction of minimum improvements as to Component Three, neither the Redeveloper nor the City shall have' any further rights ar obligations under this Contract for Private Redevelopment, except insofar as such rights or obligations relate to Components One and Two. If the Redeveloper does elect to proceed with the construction of minimum improvements as to Component Three, then: a) Not later than 120 days following the Redeveloper's election to proceed with Component Three, Redeveloper shall perform its Initial Period review as provided in Section 3.0, and the parties will endeavor in good faith to reach an agreement on matters of Public Improvements as provided in Article V relating to Component Three. If the Redeveloper determines not to proceed based on the Initial Period review as provided in Section 3.0, or if the _. parties are unable to reach agreement on matters of Public Improvements as provided in Article V, then this Agreement shall be null and void as to Component Three. b) The Redeveloper shall diligently pursue acquisition activities relative to Component Three. Not later than one hundred twenty (120) days after its election to proceed with Component Three, the Redeveloper shall provide the HRA with evidence reasonably satisfactory to the HRA that the Redeveloper has entered in to binding option or purchase agreements or has acquired marketable title to the land within Component Three, or request condemnation by the HRA in accordance with Section 3.3. HC26D3414715/ 26533034.v21/4/20U2 1 g -58- c) Subject to Unavoidable Delays the Redeveloper shall commence construction of Component Three Minimum Improvements (with the exception of tenant improvements) not later than one (1} year after its election to proceed with Component Three, and shall complete construction within fifteen (15) months after the commencement of construction. d) If the Redeveloper does not elect to proceed with Component- Three, the HRA shall be relieved of all obligations pursuant to the Notes delivered in connection with Components One or Two and, upon the request of the HRA, the Redeveloper shall deliver the original Notes to-the HRA. • • Hc26DS4/ 4715/ 26553034.v2 1/M2oo2 19 -59- e) If following one year from the commencement of Construction of Component one the Redeveloper does not elect to proceed with Component Three, and the- HRA has received a bona fide offer from a third party other than the Redeveloper to redevelop the property constituting Component Three, the HRA shall give written notice to the Redeveloper that if the Redeveloper does not elect in writing to proud with the Redeveloper of Component Three within one hundred twenty (124) days of receipt of such notice, the Redeveloper shall have no further rights under this agreement as to Component Three. ARTICLE VII TAX INCREMENT Section 7.1. Level of Assistance, Reevaluation. Prior to the issuance of any Note, the HRA's fiscal consultant will make a determination concerning the appropriate level of economic assistance to be furnished to the Redeveloper and evidenced by the Notes. The Redeveloper will promptly supply all data reasonably needed to make such a determination. The face amount of the Notes will be deferred as appropriate. Section 7.2. Note Delivery at Closing: At Closing• on each component, the HRA will execute and deliver to the Redeveloper the Notes in principal amounts to be agreed by the parties within one hundred twenty (120) days of the execution of this agreement as to Component One and one hundred twenty (12U) days of the Redeveloper's election to proceed as to Components Two and Three. Such Notes shall be in substantially the form attached hereto as Exhibit B. Payments under the Notes shall be reimbursement for Site Costs, and other costs eligible for reimbursement under the TIF Pian. The Scheduled Payments (as defined in the Notes) on the Notes shall be due and payable on the Scheduled Payment Dates (as defined in the Notes), provided that the HRA has received as of any such Scheduled Payment Date the Available Tax Increment (as defined in the Notes). Except as provided in Section 11.3, payment under and in accordance with the terms of the Notes is the sole and exclusive source of assistance to be provided to the Redeveloper. Section 7.3. Dela,~of Payments. In addition to the remedies available under section .10.2 the HRA shall make no payments under any Note until Commencement of Construction has begun on the Component Three pursuant to a binding construction contract covering the construction of the Component Three Minimum Improvements. Once commenced, the HRA shall release any withheld- payments, subject to its remedies under section 10.2, provided, however, that if construction of the Component Three Minimum Improvements is not commenced or completed within the times provided in Section 4.5, the HRA may cancel all Notes, and may retain any Available Increment withheld prior to the date of termination, and may proceed to develop Component Three as, and with whom it sees fit. If the Redeveloper has purchased the land that comprises Component Three prior to the termination of the Notes, the HRA will, prior to undertaking to redevelop the Component • HC26DS4/ 4715/ 26333034.v21/4/2002 20 -60- Three land, apply Available Increment generated by the Componen One Minimum Improvements and the Component Two Minimum Improvements to reimburse the Redeveloper for the actual cast of acquisition. The obligation will be evidenced by a Tax Increment Limited Revenue Nate. ARTICLE VIIT FINANCING Section 8.1. Limitations Upon Encumbrance. Prior to the completion of the Minimum Improvements for any Component, as certified by the HRA pursuant to Section 4.7 of this Agreement, neither the Redeveloper nor any successor in interest to the Redevelopment Property or any part thereof shall, without the consent of the HRA, engage in any financing or any other transaction creating any mortgage or other encumbrance or lien upon the Redevelopment Property or any part thereof, whether by express agreement or operation of law, or suffer any encumbrance or lien to be made on or attached to the Redevelopment Property or any part thereof, except only for the purpose of obtaining funds to the extent necessary for acquiring the land and developing the Minimum Improvements for such Component. Section 8.2. Cop,~of Notice of Default to Lender. Prior to the issuance of a Certificate of Completion, whenever the HRA shall deliver any notice or demand to the Redeveloper with respect to any breach or default by the Redeveloper in its obligations under this Agreement, the HRA shall at the same time forward a copy of such notice or demand to each holder ("Holder") known to the HRA of any mortgage or other financing agreement authorized by this Agreement by sending such notice to last known address of the Holder as shown in the records of the HRA. Section 8.3. Lender's Qption to Cure Defaults. After any breach ar event of default referred to in SECtan lU:l hereof, each Holder shall (insofar as the rights of the HRA are concerned). have the right for a period of ninety (90) days, at the Holder's option, to cure or remedy such breach or event of default to the extent that it relates to the part of the Redevelopment Property covered by its financing and to add the. cost thereof to the debt and the lien of its financing, provided, that if the breach or event of default is with respect to construction of the Minimum Improvements, nothing contained in this Section or any other section of this Agreement shall be deemed to permit or authorize such Holder, either before or after foreclosure or action in lieu thereof, to undertake or continue the construction or completion of the Minimum Improvements (beyond the extent necessary to conserve or protect such Improvements or construction already made) without first having acknowledged that the Property is subject to the Redeveloper's obligations described in Section 1.0.2 hereof by written agreement reasonably satisfactory to the HRA to complete the Minimum Improvements or the part thereof to which the lien or title of such holder relates, provided further, however, that the HRA will not unreasonably withhold its consent to any changes in the Minimum Improvements which are requested by the Holder if the requested changes do not alter the basic design of the Minimum Improvements or result in a decrease of the market value of such Minimum Improvements. (It being understood that such. consent shall in no way act to bind or influence the power of the HRA, in the exercise HC26DSM 4715/ 26553034.x2 1/4/2002 21 -61- of its governmental HRA not to approve any. proposed changes or alterations to the Minimum Improvements. Any such Holder who shall perform the Redeveloper's obligations under Section 4.6 hereof, relating to the Redevelopment Property or applicable part thereof, shall be entitled, upon written request made to the HRA, to a certification by the HRA to such effect in the manner provided in. Section 4.8 of this Agreement. Section 8.4. HRA's Option to Cure Default. Prior to the issuance of a Certificate of Completion, if the Redeveloper is in default under any financing authorized pursuant to Article VIlI of this Agreement, the Holder, prior to exercising any of its remedies, shall notify the HRA in writing by sending it a copy of any notice of default sent to the Redeveloper. If, within thirty (30} days after receipt of said notice, the HRA cures the default, then the Holder shall pursue none of its remedies under the financing based upon the said default of the Redeveloper. Section 8.5 Subordination. In order to facilitate the obtaining of construction or permanent financing by the Redeveloper, the HRA agrees to consent to the assignment of this Agreement and a Note or Notes, and to the extent the HRA determines that it remains secure, to subordinate its rights under this Agreement to the Mortgage evidencing any such construction or permanent financing. The HRA also agrees to make reasonable modifications to this Agreement so long as such modifications do not render the HRA less secure, increase or create any financial risk, or alter the manner to review modifications to the Concept Plan. ARTICLE IX PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER Section 9.1. Representation as to Development. The Redeveloper represents and agrees that its undertaking pursuant to the Agreement are, and will be used, for the purpose of development of the Redevelopment Property and not for speculation in land holding. The Redeveloper further recognizes that, in view of (a) the importance of the development of the Redevelopment Property to the general welfare of the community; and (b) the substantial financing and other public aids that have been made available by the City and the HRA, for the purpose of making such development possible; that the qualifications and identify of the Redeveloper are of particular concern to the community and the HRA. Any significant change with respect to the identify of the Redeveloper or the purchase of Redeveloper's interest by any other party or parties is for practical purposes a transfer or disposition of the property then owned by the Redeveloper, the Redeveloper further recognizes that it is because, of such qualifications and identify that the HRA is entering into this Agreement with the Redeveloper and, in so doing, is further willing to accept and rely on the obligations of the Redeveloper for the faithful performance of all undertakings and covenants hereby then to be performed. Section 9.2. BLANK . Section 9.3. Prohibition Against Transfer of Propertv and Assignment of Agreement. HC26DS4/ 4715/ 26553034.x2 1/4/2002 22 -62- 1. The Redeveloper represents and agrees that prior to the issuance of a Certificate of Completion for any Component, it will not, witht~ut the consent of the H1tA, make or create, or suffer to be made or created, any total or partial sale, assignment, conveyance, or any trust or power, or transfer in any other mode or form of or with respect to such Component or this Agreement as it relates- to Such Component or any part thereof or any interest therein, or any contract or agreement to do any of the same. 2. In the absence of specific written agreement by the HRA to the contrary, no such transfer or approval by the HRA thereof shall be deemed- to relieve the Redeveloper, or any other party bound in any way by this Agreement or otherwise with respect to the construction of the Minimum Improvements on such Component, or from. any of its obligations with respect thereto. The I-iRA may, however, in its reasonable. discretion release Redeveloper if it presents a transferee or assignee equally quaff ed as the Redeveloper. - ~- 3. The Redeveloper shall have the right to transfer ownership interests in the Redeveloper, this Agreement, or any Component of the Redevelopment Property to any entity or entities that are either controlled by the Redeveloper or by any corporation or entity that has a controlling interest in Redeveloper. Section 9.4. LAN - . Section 9.5. royal . Any approval required to be given by the IRA under this Article IX of this Agreement may be denied only in the event that the HRA reasonably determines that the performance of the obligations of Redeveloper under this Agreement will be materially impaired by the action for which approval is sought. At the HRA's request, the Redeveloper shall provide to the HRA's attorney for privileged review on behalf of the HRA financial information as to any proposed general partners, or controlling. stockholders of proposed. assignees or transferees, and financial information as to any such partnership or corporation. ARTICLE X EVENTS OF DEFAULT Section l U.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 (unless the context otherwise provides), any one or more of the following events: a. Failure by the Redeveloper or the HRA to pay when due any payments required to be paid or performing any actions (including, without limitation, the timely commencement and completion of construction as provided for in Section 4.5) required to be performed under this Agreement. • HC26DS4/ 4715/ 26553034.x2 1/M2002 23 -63- b. Subject to Unavoidable Delay, failure by the. Redeveloper ar the HRA to observe and substantially perform any covenant, conditions, obligation, or agreement on its part to be observed or performed hereunder. c. If the Redeveloper shall admit in writing its inability to pay its debts generally as they become due, or shall file a petition in bankruptcy, or shall make an assignment for the benefit of creditors, or shall consent to the appointment of a receiver of themselves or of the whole or any substantial part of the Redeveloper Property. d. if the Redeveloper shall file a petition. or answer seeking reorganization or arrangement under the federal bankruptcy laws. e. If the Redeveloper, on a petition in bankruptcy filed against it, be adjudicated a bankrupt,. or a court of competent jurisdiction shall enter an order of decree appointing, without the consent of Redeveloper, a receiver of Redeveloper or of the whole or substantially all of its property, or approve a petition filed against Redeveloper seeking reorganization or arrangement of Redeveloper under bankruptcy laws, and such adjudication, order, or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of entry thereof. f. If the real estate taxes are not paid when due. Section 10.2. Remedies on Default. Whenever any Event of Default referred to in Section 10.1 of this Agreement occurs, the non defaulting party may, in addition to any other remedies or rights given it under this Agreement, but only after at least thirty (3U) days notice to the defaulting party, and its failure to cure (unless a longer cure period is provided with respect to specific defaults under this Agreement) or such longer cure period if reasonably required and the actions to cure have been commenced within such 30-day period, f nd the defaulting party in default (Default) and take any one or more of the following actions: Suspend its performance under the Agreement or a Note until it receives assurances from the defaulting party or mortgagee reasonably deemed adequate by the non defaulting party, that the defaulting party will cure the default and continue performance under the. Agreement. 2. If the default relates to failure to complete a Component within the time provided, the )<iRA may cancel the Note for that Component. 3. If the default relates to failure to Commence Construction on any Component, the HRA may terminate the Agreement in its entirety. 4. Withhold the Certificate of Completion if the Event of Default relates to the failure of the Redeveloper to complete the improvements as provided in this Agreement. xcz~sa a~sr z6sssoaa.~z uazooz 24 -64- C, 5. Subject to the- limitations stated in Article III take whatever action at law or in equity may appear necessary or desirable to the non defaulting party to collect any payments due under this Agreement, or to enforce performance and observance of any obligation, agreement or covenant of the defaulting party under this Agreement. Provided, however, that any exercise by the 1~iltA, its successors or assigns, of its right or remedies hereunder shall always be subject to and limited by, and shall not defeat, render invalid or limit in any way (a)-the lien of any mortgage authorized by this Agreement and (b) any rights or interests provided in this Agreement for the protection of the Holder of such mortgages; and provided further that if a default by the Redeveloper relates to only one of the Components, any remedy available to the HRA shall be exercised only as to that Component. Section 10.2.1. Right to ...Develop the Project with Others. In the event that this Agreement is terminated by the HRA prior to the closing upon any breach by the Redeveloper, or in the event the HRA forecloses on any lien provided for in this Agreement, the HRA shall have the further right to proceed with the redevelopment of the Redevelopment Property with any contractor or any other individual or entity selected by the HRA. The HRA shall have the right to obtain and use, at no cost to them, all plans, specifications, studies, reports and other data prepared by the Redeveloper or at the Redeveloper's direction for such portion of the Redevelopment Property. It is expressly agreed that the consideration for rights conferred upon the City and the HRA under this Section 10.2.1 including business opportunity and other valuable consideration are: independently adequate to create a binding obligation under this Section 10.2.1 and that such obligation shall survive the cancellation, rescission, or termination of this Agreement. Section 10.3. No Remedy. Exclusive. Except as provided in Article III, no remedy herein conferred upon or reserved to the parties is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. Except as provided in Section 10.4 of this Agreement, no delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the HRA 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 X. Section 1:0.4. No Additional Waiver ImRlied by One.. Waiver. In the event any obligation 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 concurrent, previous or subsequent breach hereunder. • HC26DS4/ 4715/ 26553034.v2 1/4/2002 25 -65- • ARTICLE XI ADDITIONAL PR~~ISIONS Section 11.1. conflict of Interests; F,[~tt~Itepresen tiygs. Redeveloper Not IndividuallX Liable. Every member, official, or employee of the HRA shall fully comply with the provisions of the Act relating to conflicts of interest. No member, official, or employee of the HRA or the Redeveloper shall be personally liable to the Redeveloper or the HRA respectively, or any successor in interest, in the event of any default or breach by the HRA or Redeveloper or for any amount which may become due to the Redeveloper or HRA or successor or on any obligations under the terms of the Agreement. Section 11.2: Nondiscrimination. The provisions of Minnesota Statutes Section 181.59, which relate to civil rights and nondiscrimination, shall be considered a part of this Agreement as though fully set forth herein. Section 11.3. Release and Indemnification Covenants. a. The Redeveloper releases from and covenants and agrees that the HRA and the governing body members, officers, agents, servants and employees thereof shall not be liable for and agrees to indemnify and hold harmless the IRA 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, except those, if any, caused or occasioned by any act or neglect of the HRA, or its officers, agents, employees or representatives. b. Except for any willful misrepresentation or any willful or wanton rniseonduct or negligence of the following named parties, the Redeveloper agrees to protect and defend the HRA and the governing body members, officers, agents, servants and employees thereof, now or forever, and 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, instaNation, ownership, and operation of the Minimum Improvements. c. Except where arising from. the negligent act or omission of the HRA and the governing body members, officers, agents, servants and employees thereof shall not be liable for any damage or injury to the persons or property of the Redeveloper or its officer-s, agents, servants or employees or any other person who may be about the Redevelopment Property, Minimum Improvements due to any act of negligence of any person. • HC26DS4/4715126853034:v21/4/2U02 26 -66- d. All covenants, stipulations, promises, agreements and obligations of the HRA contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the HRA and not of any governing body member, oeer, agent, servant or employee of the HRA in the individual sagacity thereof. Section 1.1.4. Notice of Status and Conformance. The HRA agrees that from tune to time, upon not less than ten (10) days' prior written notice by Redeveloper, to execute, acknowledge and deliver, without charge, to Redeveloper or to any person designated by Redeveloper, a statement in writing certifying, to the extent true, that this Agreement is unmodified, the principal amount of any obligation herein created then unpaid, that the HRA has not received any notice of default, that to the knowledge of the HRA has not received any notice of default, that to the knowledge of the HRA no event of default exists hereunder (Qr if any such event of default does exist, specifying the same and stating that the same has been cured, if such be the case), that the HRA to its knowledge, has no claims against the Redeveloper hereunder, and any other information reasonably requested by the Redeveloper. It is the intention of this Section 11.4 to provide a mechanism for obtaining estoppel certificates which may be requested by Redeveloper's mortgagee. Section 11.5. 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 it if is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally: As to the HRA: Housing and Redevelopment Authority 5341 Maywood Road Mound, MN 55364 Attention: Executive Director With copy to: John B. Dean Kennedy & Graven, Chartered 470 Pillsbury Center Minneapolis, MN 554U2 As to the Redeveloper: Gramercy Corporation 6601 Lyndaie Avenue South Suite i 10 Richfield, MN 55423 Attention: Michael W. Conlan, President With copy to: HC26DS4/ 4713/ 26333034.v21/4/2002 Rolfe A. Worden Hinshaw & Culbertson Suite 3100 222 So. 9th Street Minneapolis, MN 55402 27 -67- • • • 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: Section 11.6. Counterps. This Agreement may be srnultaneousy executed in any number of counterparts, all of which shall constitute one and the same instrument. Section 11.7. Parki,~g, ~~ merit. At the Closing on Component One, the Redeveloper will execute and deliver to the HRA anon-exclusive easement permitting the use of i 5 parking spaces by the HR.A and its assigns: The parking spaces are within the area designated on the Concept Plan for General Parking. • • HC26DS4/4715/ 26353U34rv2 1/4/2002 2g -68- Section 11.8. Business Subsidy Agreement. Assistance payable to the Redeveloper under this.. ageement which also meets the definition of a business subsidy under the Minnesota Business Subsidy Act, (Minnesota Statutes Suction 116J.993 to 116J.995j shall not be paid until the parties have. entered into a Business Subsidy Agreement. Section 11.9. Payment of Administrative Costs. At the time of execution and delivery of this Ageement, the Redeveloper has deposited` with the HRA the sum of $25,000. The deposit shall be drawn upon in payment of the Administrative Costs, which for the purpose of this section, shall mean the value of out of pocket costs incurred by the I3RA attributable to and incurred in connection with the drafting and negotiation of this agreement. 'The deposit constitutes the Redeveloper's entire obligation to pay such costs. Not .later than 45 days following the date of this Agreement the HRA will give the Redeveloper an itemized accounting showing the draws made on the deposit. Unused portions of the deposit, if any, will be returned to the Redeveloper at the time of such accounting. Section 11.10. Extensions. If the Redeveloper is making substantial progress with respect to the redevelopment project, and is unable to meet one or more of the deadlines, or time limits herein contained, the HRA and the Redeveloper shall negotiate in good faith for a reasonable period to extend the tune in which necessary action(sj must be taken or occur. • FIC26DS4/ 4'IIS/ 26553034.x21/4/2002 29 -69- IrT WITNESS WHEREOF, the parties hereto have set their hands and seals as of the day and year first- above written. THE HOUSING AND REDEVELOPMENT AU'T'HORITY OF THE CITY OF MOUND, MINNESOTA By: Its: Chairperson By: Its: Executive Director GRAMERCY CORPORATION, a Minnesota corporation By: Its President STATE OF hNNESOTA COUNTY OF HENNEPIN ss.. The foregoing instrument was .acknowledged before me this day of , by and ,the Chairperson and Executive Director of The Housing and Redevelopment Authority in and for the City of Mound, Minnesota. Notary Public STATE OF 1~T]NNESOTA COUNTY OF HENNEPIN ss.. The foregoing instrument was acknowledged before me this day of , by ,the President of Gramercy Corporation, a Minnesota corporation, on behalf of the corporation. HC26DS4/ 4715/ 26353034.v2 1/4!2002 30 _70_ Notary Public • • xcz~sa a~isr 26ssaosa.~z var2oo2 31 -71- • EXHIBIT A REDEVELOPMENT PlI4PERTY Legal Description [To be supplied prior to execution]: • • HC26DS4/ 4715/ 26553034.x2 1/4/2002 A' 1 -72- Exam pie EHI~TT B UNITED STATES OF AMERICA STATE OF iwIiNNESOTA COUNTY OF HENNEPiN THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF MOUND LIlVIITED REVENUE TAX INCREMENT NOTE The Housing and Redevelopment Authority in and for the City of Mound (the "HRA"), hereby acknowledges itself to be indebted and, for value received, promises to pay to the order of Gramercy Corporation, a Minnesota corporation (the "Owner"), to the extent and in the manner hereinafter provided, the original principal amount of this Note, being $ (the "Principal Amount"), together with interest thereon accrued from the date of this Note, at the rate of interest of % per annum (the "Stated Rate"), on the dates (the "Scheduled Payment Dates") set forth on the attached Schedule A. Unpaid interest accruing from the date of this Note, shall be added to principal on a semi annual basis on each August 1 and February 1 until i Any payrnenta on this Note shall be applied first to accrued interest and then to the Principal Amount in respect of which such payment is made. Each payment on this Note is payable in any coin or currency of the United States of America which on the date of such payment is legal tender for public and private debts and shall be made by check or draft made payable to the Owner and mailed to the Owner at it postal address within the United States which shall be designated from time to time by the Owner. The Note is a special and limited obligation and not a general obligation of the HRA, which has been issued by the HRA to aid in financing a "project," as def ned in Minnesota Statutes, § 469.174, of the HRA within and for the benefit of the Tax Incremen Financing District- ("District"). THE NOTE IS NOT A DEBT OF THE HRA, THE CITY OF MOUND, OR THE STATE OF MINNESOTA (THE "STATE"), AND NEITHER THE HRA, THE CITY OF MOUND, THE STATE NOR ANY POLITICAL SUBDIVISION THEREOF SHALL BE LIABLE ON THE NOTE, NOR SHALL THE NOTE BE PAYABLE OUT OF ANY FUNDS OR PROPERTIES OTHER THAN AVAILABLE TAX INCREMENT, AS DEFINED BELOW. The Scheduled Payment of this Note due on any Scheduled Payment Date is payable solely from and only to the extent that the HRA shall have received as of such Scheduled Payment Date "Available Tax Increment." For the purpose of this Note, "Available Tax HC26DSM 4715/ 26353034.v2 1/412002 B'Z _73_ Increment" means (90 %) of the tax increment received from the real estate described in Schedule B (the "Property") for years beginning with and ending ,after first deducting therefrom any amount needed to make a previously due but unpaid Scheduled Payment to Owner. For purposes of this- Note,. a "Payment Date" shall mean each of the dates set forth on Schedule A attached hereto. This Note shall terminate upon the earlier of i) the date when the Owner has been fully reimbursed according to the terms hereof; or ii), the last date on which the HRA is entitled to receive tax increment with respect to the Redevelopment Property, exclusive of late payments of tax increment accrued during the-term of the District. The I3RA's obligation to make any payments under this Note is subject to its rights to suspend payments and to cancel this Note in a~ccordanoe with the provisions of the Contract for Private Development, dated , (the "Development Contract") between the HRA and the Owner, and the I3RA shall have no obligation and incur no liability to make any payments hereunder immediately upon the occurrence under the Development Contract which authorizes such action by the HRA. This Note shall not be payable from or constitute a charge upon any funds of the HRA or the City of Mound and the HRA shall not be subject to any liability hereon or be deemed to have obligated itself to pay hereon from any funds except the Available Tax Increments, and then only to the extent and in the manner herein specified. The Owner shall never have or be deemed to have the right to compel any exercise of any taxing power of the IiRA or the City of Mound or of any other public body, and neither the HRA or the City of Mound nor any director, commissioner, council member, board member, officer, employee or agent ofthe HRA or the City of Mound, 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 shah not be transferable or assignable, in whole or in part, by the Owner without the prior written consent of the HRA; provided that the Owner may pledge the payments hereunder to a lender or assign the payments hereunder to a subsequent purchaser of the Development, but only with prior written notice thereof to the HRA. The Owner may also, without prior notice to or consent of the HRA transfer or assign the Note or the right to receive payments under the Note to a wholly-owned subsidiary of the Owner. This Note may be prepaid in full at any time at the option of the HRA, but only with the consent of the Owner; and may also be prepaid at the request of the. Owner, but in either instance only if the 1IRA f rst determines that sufficient tax increment is or will be generated to permit such prepayment, and the parties agree upon-the actual prepayment amount. This Note is issued pursuant proper action of the HR:A by Re~luton and the Owner is entitled to the benefts thereof, which Resolution is incorporated herein by reference. HC26DS414T15/26333034.v21l4/2002 B' -74- IT IS HEREBY CERTIFIED AND RECITED that any acts, conditions, and things required by the Constitution -and laws of the State of Minnesota to be done, to-have happened, and- to be performed precedent. to and in the issuance of this Note have been done, have happened, and have been ,performed in regular and due form, time, and manner as required by law; and that this Note, together with all other indebtedness of the HRA or the City of Mound outstanding on the date hereof and on the date of its actual issuance and delivery, does not cause the indebtedness of the HRA or the City of Mound to exceed any constitutional or statutory limitation thereon. Ilv ~~VITNESS WHEREOF, the Board of Commissioners of the HRA has caused this Note to be executed by the manual signatures of the Chairperson and the Executive Director of the HRA and has caused this Note to be dated , 200 . THE HOUSING AND REDEVELOPMENT AUTHORITY FOR THE CITY OF MOUND By: Chairperson By: Executive Director HC26DS4/ 4715/ 26533034.W21/4/2002 B'4 • • -75- • • • SCHEDULE A SCHEDULED SCHEDULED PAYMENT DATES. PAYMENT DATES , HC26DSM 4715/ 26553434.x3 1!4/2002 B-5 -76- Example EXHIBIT C CERTIFICATE OF COMPLETION The undersigned hereby certifies that Gramercy Corporation., a Minnesota corporation, has fully and completely complied with its obligations under Article N of that document entitled "Contract for Private Development,." dated , 2041, between The Housing and Redevelopment Authority in and for the City of Mound, and Gramercy Corporation, a Minnesota corporation, with respect to construction of the Minimum Improvements for the Component located on the tract of land described in the attached Exhibit A in accordance with the requirements of such document and is released and forever discharged from its obligations to construction the Minimum Improvements on such Component under such above-referenced Article on the above-referenced tract. DATED: HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF MOUND By: Its Chairperson By: Its Executive Director xcz~sa~a~~siz6sssosa.~z uanooz C-1 • -77- • EXHIBIT D Example ASSESSMENT AGREEMENT THIS AGREEMENT, made on or as of the - day of -- , 200 , and between. the Housing and Redevelopment Authority in and for the City of Mound, a public body, corporate and- politic (the "Authority") and Gramercy Corporation, a Minnesota corporation (the "Redeveloper"). WITNESSETH: WHEREAS, on or before the date hereof the HRA and Redeveloper have entered into a Contract for Private Redevelopment dated 2001 (the "Redevelopment Contract"), pursuant to which the HRA is to facilitate development of certain property in the City of Mound hereinafter referred to as the "Property" and legally described in Exhibit A hereto; and WHEREAS,. pursuant to the Redevelopment Contract the Redeveloper is obligated to construct certain improvements upon the Property; and WHEREAS, the HRA and Redeveloper desire to establish a minimum market value for the Property and the improvements constructed thereon, pursuant to Minnesota Statutes, Section 469.177, Subdivision 8; and WHEREAS, the HRA and the Assessor for Hennepin County (the "Assessor") have reviewed the preliminary plans and specifications for such improvements and have inspected such improvements; NOW, THEREFORE, the parties to this Agreement, in consideration of the promises, covenants and agreements rnade by each to the other, do hereby agree as follows: 1. The minimum market value which shall be assessed for the Property described in Exhibit A as Component One, together with the improvements thereon, for ad valorem tax purposes, shall be $ as of 7anuary 2, 20U~ notwithstanding the progress of construction of such improvements by such date. The minimum market value which shall be assessed for the Property described in Exhibit A as Component Two, together with. the improvements thereon, for ad valorem tax purposes shall be $ as of 3anuary 2, 200 2. The minimum market value herein established shall be of no further force and effect and this Agreement shall terminate on the earlier of the date of receipt by the HRA of the final payment from Hennepin County of Tax Increments from TIF District No. 1-2, or, as to any Component, the date on which the Note for that Component is fully paid or is terminated for HC26DS4! 4715/ 26353034.v2 1/M2002 D'2 _78_ default The HI~A will provide the Itedevelopar with an instrument in recordable form evidencing such termination. 3. This Agreement shall be promptly recorded by the HRA. The R:sdeveioper shall pay all costs of recording: 4. Neither- the preambles nor provisions of this Agreement are intended to, nor shall they be construed- as, modifying the terms of the Redevelopment Contract between the I3RA and the Redeveloper. 5. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties. 6. Each of the parties has I3RA to enter into this Agreement and to take all actions required of it, and has taken all actions necessary to authorize the execution and delivery of this Agreement. 7. In the event any provision of this Agreement shall be held invalid and unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 8. The parties hereto agree that they will, from time to time, execute, acknowledge and .deliver, or cause to be executed, acl~nowledged and delivered, such supplements, amendments and modifications hereto, and such further instruments as may reasonably be required for correcting any inadequate, or incorrect, or amended description of the Property or the improvements, or for carrying out the expressed intention of this Agreement, including, without limitation, any fiuther instruments required to delete from the description of the Property such part or parts- as may be included within a separate assessment agreement. 9. Except as provided in Section 8 of this Agreement, this Agreement may not be amended nor any of its terms modified except by a writing authorized and executed by all parties hereto. IU: This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 11. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. • Hc26D3a/ 4715/ 26553034.421/4/2002 D-3 -79- • HOLJSiNG AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF MOUND, MINNESOTA By: Its Chairperson By: STATE OF N.QNNESOTA COUNTY OF HENNEPIN ss.. Its Executive Director On this day of , 20U1, before me, a notary public within and for Hennepin County; personally appeared and to me personally known who by me duly sworn, did say that they are the Chairperson and Executive Director of the Housing and Redevelopment Authority in and for the City of Mound (the "HRA") named in the foregoing instrument; that the seal affixed to said instrument is the seal of said HRA; that said instrument was signed and sealed on behalf of said HRA pursuant to a resolution of its governing body; and said and acknowledged said instrument to be the free act and deed of said HRA. Notary Public • HC26DSM 4715/ 26553034.v21/4/3U02 D-4 -80- GR:AMERCY CORPORATION, a Minnesota corporation By: Its President STATE OF MINNESOTA COUNTY OF HENNEPIN ss.. On this day of , 2U01, before me, a notary public within and for County, personally appeared ,the President of Gramercy Corporation, a Minnesota corporation, and acknowledged the foregoing instrument on behalf of the corporation. Notary Public w • xcasDSa4ns/a~ssso3a..a i~anooz D-5 -81- I CERTIFICATION BY COUNTY ASSESSOR The undersigned, having reviewed the plans and specifications for the improvements to be constructed and the market vaiue assigned to the land upon which the improvements are to be constructed, hereby certifies as follows: The undersigned Assessor, being legally responsible for the assessment of the above described property, hereby certifies that the values assigned to the land and improvements are reasonable. County Assessor for the County of Hennepin STATE OF 1~SNNEgOTA COUNTY OF HENNEPIN ss.. The foregoing instrument was acknowledged before me this _ day of 20U_ by ,the County Assessor of the County of Hennepin. Notary Public • HC26DS4/ 4715/ 26333034.v2 1/a/2oo2 D-6 .82_ EXHTBTT A of ASSESSMENT AGREEMENT Legal Description of Property DESCRIPTION [To be supplied prior to execution] • HC26DS4/ 4715/ 2655303442 1/4/2002 ~'7 -83- Page 1 of 1 • • KandisHanson From: "Bruce" <blc@HKGl.com> To: "Kandis Hanson (E-mail)" <kandishanson@msn.com> Cc: "Jim Prosser (E-mail)" <jim@ehlers-inc.com>; "John Cameron (E-mail)" <jcameron@mfra.com>; "John Dean (E-mail)" <jdean@Icennedy-graven.com>; "Sarah Smith (E-mail)" <sarahjsmith@att. net> Sent: Tuesday, October 23, 2001 3:36 PM Subject: Mound Visions October 22, 2001 Kandis, I've been thinking about comments last evening suggesting that at least some of the public improvements needed for redevelopment could be viewed as subsidy for a particular redevelopment project. 1 can understand this point of view, especially if there is personal concern over the private development being proposed but I would caution not to throw out the baby with the bath water. 1n my view, THE most important question for the Council to consider when evaluating decisions regarding the funding of public improvements is "can the Mound Vision be realized without this set of public projects?" The answer is, without question in my mind, no. I would go further to argue that most of Mound Visions is about the vary public projects we are. discussing, not just private redevelopment. The Lost Lake greenway and canal is a fully public space intended for strolling, boating, gathering and. interlinking the community. It is the primary recreational and ecological component designed into Mound Visions. The County Road and utilities need to be moved for the success and/or construction of every private downtown redevelopment project (underway or planned). The streetscape improvements are essential to alter the image of downtown and to create apedestrian-friendly environment. We learned early in the Mound Visions process that Mound is not a slam dunk for development and that developers will not be interested in Mound without a great community vision and the commitment to radically change the downtown environment. This group of public projects accomplishes those needs and whether the Gramercy proposal is accepted or not, these projects will finally set the downtown stage for success. Bruce Chamberlain -84- 10/23/2001