04-25-94 agendaCITY OF RICHFIELD, MINNESOTA
MONDAY, APRIL 25, 1994
SPECIAL CITY COUNCIL STUDY SESSION
5:30 P.M.
COUNCIL CHAMBERS
AGENDA
CALL TO ORDER
1. 5:30-6:45 P.M. DISCUSSION OF STORMWATER SYSTEM: 1) DAMAGE
FROM JULY 1, 1993 STORM AND POSSIBLE
IMPROVEMENT OPTIONS; 2) PRESENT STORMWATER
CAPITAL IMPROVEMENT POLICY; 3)
RECOMMENDATION FROM COMMUNITY SERVICES
COMMISSION
STUDY SESSION LETTER NO. 14
ADJOURNMENT
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SPECIAL HOUSING AND REDEVELOPMENT AUTHORITY MEETING
HELD CONCURRENTLY WITH REGULAR CITY COUNCIL MEETING
7:00 P.M.
COUNCIL CHAMBERS
AGENDA
INTRODUCTORY PROCEEDINGS
CALL TO ORDER
PLEDGE OF ALLEGIANCE
ITEMS TO BE CONSIDERED BY HRA:
1. CONSIDERATION OF RESOLUTION APPROVING AMENDMENTS TO CONTRACT
FOR PRIVATE REDEVELOPMENT BETWEEN HRA AND CSM CORPORATION;
ILN REDEVELOPMENT PROJECT
HRA LETTER NO. 38
2. CONSIDERATION OF AMENDED RESOLUTION AUTHORIZING CONDEMNATION
AND QUICK TAKE OF PHASE I, THE SHOPS AT LYNDALE, ILN
REDEVLOPMENT PROJECT
HRA LETTER NO. 39
ADJOURNMENT OF SPECIAL_HRA MEETING
PUBLIC HEARINGS
5. CONSIDERATION OF REQUEST FOR NEW 1994 ON-SALE AND SUNDAY
LIQUOR LICENSE FOR CHAMPPS DEVELOPMENT CORPORATION d/b/a
CHAMPPS SPORTS CAFE, 790 WEST 66TH STREET
COUNCIL LETTER NO. 126
6. PUBLIC HEARING AND SECOND READING OF ORDINANCE AMENDMENT TO
REZONE THE FOLLOWING MULTIPLE RESIDENCE PROPERTIES: 1) 6409,
6415, 6421 AND 6429 BLAISDELL AVENUE TO SINGLE FAMILY
RESIDENCE; 2) 6227-29 AND 6237 PLEASANT AVENUE TO HIGH
DENSITY MULTI-FAMILY; 3) 840 WEST 65TH STREET TO HIGH
DENSITY MULTI-FAMILY; AND 4) 920-24-28 RAE DRIVE TO HIGH
DENSITY MULTI-FAMILY
COUNCIL LETTER NO. 127
7. PUBLIC HEARING AND SECOND READING OF ORDINANCE FOR SALE OF
PROPERTY AT 7537 GIRARD AVENUE TO HRA; AND AUTHORIZATION TO
ENTER INTO LICENSE AGREEMENT WITH HRA
COUNCIL LETTER NO. 128
8. PUBLIC HEARING AND CONSIDERATION OF RESOLUTION APPROVING
MODIFICATION TO RICHFIELD REDEVELOPMENT PROJECT PLAN,
CONSISTING OF MODIFICATION NO. 4 TO REDEVELOPMENT PLAN AND
TAX INCREMENT FINANCING PLAN FOR INTERSTATE/LYNDALE/NICOLLET
REDEVELOPMENT PROJECT
COUNCIL LETTER NO. 129
RESOLUTIONS
9. CONSIDERATION OF HENNEPIN COUNTY PLAN FOR 76TH STREET AND
PENN AVENUE CONSTRUCTION PROJECT INCLUDING RESOLUTIONS:
? APPROVING MINNESOTA DEPARTMENT OF TRANSPORTATION AGREEMENT
NO. 71587;
? AUTHORIZING EXPENDITURE OF $466,344 OF RICHFIELD'S
MUNICIPAL STATE AID CONSTRUCTION MONIES OFF-SYSTEM FUND FOR
CONSTRUCTION OF IMPROVEMENTS ON PENN AVENUE
? AUTHORIZING POSTING OF TRAFFIC CONTROL SIGNS "NO PARKING
ANYTIME" ON PENN•AVENUE FROM 75TH STREET TO I-494 AND ON
76TH STREET FROM SHERIDAN AVENUE TO NEWTON AVENUE
COUNCIL LETTER NO. 130
10. CONSIDERATION OF RESOLUTION AUTHORIZING ISSUANCE AND SALE OF
COMMERCIAL DEVELOPMENT REVENUE REFUNDING BONDS (RICHFIELD
SHOPPES DEVELOPERS PROJECT), SERIES 1994
0
COUNCIL LETTER NO. 131
PROPOSED ORDINANCE
/-/XW , Z 3
RESOLUTION NO.
RESOLUTION RELATING TO RICHFIELD SHOPPES
DEVELOPMENT PROJECT : AUTHORIZING EXECUTION OF
A SUBORDINATION AGREEMENT
BE IT RESOLVED by the Housing and Redevelopment Authority of the City of
Richfield, Minnesota (Authority) as follows:
1. The Authority has entered into a Contract for Private Development
dated October 26, 1983 (Contract) with Richfield Shoppes Developers, a Minnesota
partnership (Developer) regarding the development of certain property in the
Lyndale-Hill-Nicollet LHN Redevelopment Project Area.
2. Section 7.6 of the Contract requires Authority consent to subordinate
its interests in the Contract for financing of the Improvements and the Lease
Purchase Agreement, as defined in the Contract.
3. The Developer has agreed to purchase the land subject to the Lease
Purchase Agreement and to refund the commercial development bonds issued by the
City of Richfield to finance the Project.
4. Developer has submitted a form of Subordination Agreement to the
Authority for approval pursuant to Section 7.6 of the Contract.
5: It is found and determined that the execution of the Subordination
Agreement is in the best financial interests of the Authority.
6. The' Chair and the Executive Director are authorized and directed to
execute and deliver the Subordination Agreement on behalf of the Authority .
7. The Subordination Agreement is not be delivered until the Authority has
received the purchase price under the Lease Purchase Agreement.
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY
OF RICHFIELD, MINNESOTA
By Its Chair
By
G?cG Its Executive Director
/off
DJK69176 ,.-__-.___-----
RC125-71
HOUSING AND REDEVELOPMENT AUTHORITY
HRA Letter No. 39
Agenda April 25, 1994
Issue Statement:
Adoption of an amended resolution authorizing condemnation and
quick take of Phase I, the Shops at Lyndale, ILN Redevelopment
Project.
Background:
On April 11, 1994, the HRA adopted a condemnation resolution for
the Phase I area of the Shops at.Lyndale. Subsequently,
questions have arisen about the ownership of`-the former 77th
Street right of way immediately north of and adjacent to Emerson
Avenue Congregational Church (see attached map). As of the
writing of this letter, the ownership has not yet been
determined. This item is being included on the agenda so if it
is determined that the City does not have clear title to the
property, action can be taken at the April 25 meeting to obtain
title. The amended resolution would be available at the HRA
meeting on April 25, 1994.
The CSM Corporation has proposed the redevelopment of the portion
of the ILN south of 77th Street between Emerson and Lyndale
Avenues. The proposal presented to the HRA on March 14, 1994
envisioned approximately 231,000 square feet of retail space and
a restaurant all with supporting parking. Phase I of
approximately 112,000 square feet would be located between
Emerson and Colfax Avenues. CSM stated that a timely opening of
Phase I prior to the 1994 holiday shopping season is critical to
securing tenants.
To assure a November opening, initiation of construction during
July or August is necessary. CSM is requesting the HRA to
authorize condemnation and quick take. Quick take would provide
title and possession to the property within 90 days or
approximately July 31, 1994. CSM reports that they are hopeful
of reaching a negotiated settlement with several of the property
owners. Some of the property owners, while agreeing to a
negotiated purchase, may want a "friendly" condemnation to
realize certain benefits under the federal tax code.
The properties'to be included are as follows:
? Emerson Avenue Congregational Church
? Southtown Village Apartments
? Cutler Animal Hospital
? Troy & Hill's Ultimate Detailers
? Tandem Press
? Vacant parcel owned by Robert Adelmann
While the HRA would initiate the condemnation action, CSM would
provide the required court deposits and fund the related expenses
so that HRA monies would not be utilized. To this end, they have
deposited with the HRA $10,000 against which the initial legal,
Publicorp and administrative costs would be charged.
Recommended Motion:
Adopt an amended resolution which authorizes the initiation of
quick-take condemnation for the Phase I site area of Shops at
Lyndale.
Basis of Recommendation:
1. The original resolution was adopted by the HRA at their April
11, 1994 meeting.
2. This action is consistent with state law and the
redevelopment plan.
3. CSM has tenants who must be assured of space availability
during November or they will likely become tenants in
commercial space in an adjoining community.
4. Negotiations between CSM and some of the property owners will
negate the need for condemnation on some parcels. It will,
however, be necessary on others.
5. CSM will provide the court deposit and fund related costs as
required by the Contract for Private Development.
is Alternative Recommendation:
1. Delay action.
2. Refuse the request.
Discussion/Decision Mode:
To benefit from this development "window of opportunity", the HRA
should take action to assure the timely availability of the Phase
I site.
Resjpz4u1,1y submitted,
Ja es Prosser
Ex cu ve Director
JDP:cak
HRA RESOLUTION. NO.
• RESOLUTION OF THE HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF RICHFIELD, MINNESOTA
AUTHORIZING EMINENT DOMAIN PROCEEDINGS TO
ACQUIRE CERTAIN REAL PROPERTY; AMII4DING HRA
RESOLUTION NO. 504
WHEREAS, on April 11, 1994, the Housing and Redevelopment Authority in and
for the City of Richfield, Minnesota (the "HRA") adopted HRA Resolution No. 504,
authorizing acquisition by eminent domain of certain real property for redevelopment
purposes; and
WHEREAS, the HRA has determined that certain property was omitted from the
description in Resolution No. 504 of the land to be acquired.
NOW, THEREFORE, BE IT RESOLVED by the Housing and Redevelopment
Authority in and for the City of Richfield, Minnesota as follows :
1. HRA Resolution No. 504 is amended by adding to the list of properties
described in paragraph 5 of that resolution, the following parcel:
PARCEL M
??, That part of the following described properties:
The South 85 feet of the West Half of the East Half of the Northeast
Quarter of the Southwest Quarter of the Southeast Quarter of Section
33, Township 28, Range 24, Hennepin County, Minnesota
and
Lot 8, NORTHFELT ADDITION; Hennepin County, Minnesota
and
Vacated or unvacated 77th Street West, as dedicated in the plat of
NORTHFELT ADDITION, Hennepin County, Minnesota
Being described as follows :
Commencing at the southeast corner of the Northeast Quarter of the
Southwest Quarter of the Southeast Quarter of said Section 33; thence
South 89 degrees 41 minutes 41 seconds West, assumed bearing, along
the south line of said Northwest Quarter of Southwest Quarter of
Southeast Quarter 86.58 feet to the point of beginning of the parcel to
be described; thence northwesterly 187.04 feet along a non-tangential
curve concave to the northeast having a radius of 610.33 feet and a
central angle of 17 degrees 33 minutes 32 seconds, the chord of said
curve bears North 63 degrees 29 minutes 13 seconds West; thence South
• 38 degrees 06 minutes 35 seconds West, not tangent to said curve, 32.47
feet; thence southerly along a tangential curve concave to the east
having a radius of 120.00 feet to the south line of said Northeast
Quarter of Southwest Quarter of Southeast Quarter, thence North 89
degrees 41 minutes 41 seconds East along said south line to the point of
beginning.
2. There are no other alterations or changes to HRA Resolution No. 504,
which remains in full force and effect, as amended by this resolution.
Thomas E. Harms, Chairperson
ATTEST:
Vern Luettinger, Secretary
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HOUSING AND REDEVELOPMENT AUTHORITY
HRA Letter No. 38
Agenda April 25, 1994
Issue Statement:
Adoption of a resolution approving amendments to Contract For
Private Redevelopment between HRA and CSM Corporation; ILN
Redevelopment Project.
0
•
Background:
At the April 11, 1994 meeting, the HRA approved a contract with
CSM Corporation. That contract provided for the redevelopment of
the area south of 77th Street between Emerson and Lyndale
Avenues. The development would proceed in two phases. Phase I
between Emerson and Colfax Avenues would proceed based on
negotiated sales or condemnation and quick take with construction
to proceed in July. Phase II east of Colfax Avenue would begin
at a subsequent date.
At the concurrent HRA and City Council meeting on April 18, 1994,
the HRA received a proposed modification to the contract (see
attached letter from CSM). The modification would provide for
the current owners and occupants to prepare an alternative
proposal for the Phase II area and submit it to the HRA within
three months or by July 18 with or without a role for CSM. The
proposing parties could then take an additional three months to
establish concept feasibility. If either of the deadlines are
not met, CSM would proceed to develop Phase II as initially
proposed. The proposed modification also contains criteria by
which to evaluate competing proposals, if any.
contract containing language to effectuate the proposal contained
in the attached letter.
HRA legal counsel will review the attached proposed amended
Recommended Motion:
Adopt the attached resolution which approves a modified
redevelopment contract.
Basis of Recommendations:
1. The designated developer, CSM Corporation, proposed the
modification.
2. The HRA heard testimony from property owners and tenants on
April 18 expressing a desire to participate in the
development process.
3. The HRA suggested on April 18 that staff prepare a contract
modification consistent with the CSM letter for
consideration.
Alternative Recommendation:
1. Reject the proposed modification.
2. Delay action on the proposal.
Discussion/Decision Mode:
A response at the April 25 meeting will reduce uncertainty and
define roles and responsibilities for CSM, property owners and
occupants and the City.
Respec f ly submitted,
Jame tive rosser
Exec Director
JDP:ds
41
0
_RESOLUTION NO.
RESOLUTION OF THE HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF RICHFIELD, MINNESOTA
AMENDING CONTRACT FOR PRIVATE REDEVELOPMENT
WITH CSM CORPORATION
WHEREAS, the Housing and Redevelopment Authority in and for
the City of Richfield, Minnesota (the "Authority") has properly
created and is administering its Redevelopment District (the
"District") pursuant to Minn. Stat. Chapter 469 in an effort to
encourage the development and redevelopment of certain designated
areas within the City of Richfield; and
WHEREAS, among the development activities proposed to be
assisted by the Authority in the District involve the development
of retail-commercial facilities; and
WHEREAS, the Authority did on April 11, 1994 approve a
Contract for Private redevelopment ("Contract") between the
Authority and CSM Corporation, setting forth the parties respective
responsibility in developing retail-commercial facilities; and
WHEREAS, CSM Corporation has requested that the Authority
consider and approve certain amendments to the contract; and
WHEREAS, the Authority has reviewed the requested amendments
and finds them to be reasonable and appropriate and in the best
interest of the City and its residents.
NOW, THEREFORE, BE IT RESOLVED by the Housing and
Redevelopment Authority in and for the City. of Richfield,
Minnesota:
1. That the form of amended contract showing all additions
and deletions hereby in all respects is approved, subject to
insubstantial modifications which may be subsequently approved by
the Board Chair and the Authority's legal counsel.
2. That the proper Authority officers are hereby authorized
to execute the Contract as amended on behalf of the Authority and
to carry out, on behalf of the Authority, the Authority's
obligations thereunder.
Adopted by the Housing and Redevelopment Authority in and for
the City of Richfield, Minnesota this 25th day of April 1994.
Thomas E. Harms, Chairperson
ATTEST:
0
Vern Luettinger, Secretary
CSM Corporation
2561 Territorial Road • St. Paul, MN 55114-1500.612/646-1717 • FAX 6121646-2404
April 18, 1994
Mr. Tom Harms
Hessian McKasy & Soderberg P.A.
4700 IDS Center
Minneapolis, MN 55402
Mr. Jim Prosser
City of Richfield
6700 Portland Ave. S.
Richfield, MN 55423-2598
Re: CSM Corporation/Richfield Agency and Redevelopment Authority
Contract for Private Development
. Gentlemen:
In light of the concerns expressed by the owners and occupants of the property located in Phase II of
the noted development, CSM is willing to modify the Contract for Private Development to provide the
owners and occupants with an opportunity to put forth their own proposal. The modifications we will
propose herein will also afford us additional time to address some of the specific relocation situations
within the project area. Based on the foregoing, please consider this a firm offer on behalf of CSM
Corporation to modify the above-referenced contract in the following respects:
1. The provisions in the contract involving Phase H would remain in place except that the
current owners and occupants of the Phase II property would have an opportunity to
prepare an alternative redevelopment proposal for all or part of the Phase II property,
provided that such alternative proposal is distinct and not merely a re-make of our
existing retail development proposal. Such alternative proposal could be made with or
separate from CSM.
2. If a preliminary alternative proposal, conceptually acceptable to the HRA, is not reached
within three (3) months of the date hereof, the parties to the contract will continue with
their obligations and commitments under the contract, subject to modifications necessary
to accommodate the three (3) month hiatus.
3. If a conceptually acceptable proposal is made as aforesaid, but the proposing parties are
unable to provide evidence satisfactory to the HRA that the project is practically and
financially viable within six (6) months of the date hereof, the parties to the contract will
continue with their obligations and commitments under the contract subject to
modifications to accommodate the six (6) month hiatus.
Mr. Tom Harms
Mr. Jim Prosser
April 18, 1994
Page 2
4. If alternative proposals are made for the redevelopment of all or part of the Phase II
property, the HRA shall have the absolute discretion in all matters relating to the
selection of the proposal or proposals. It is expected, however, that in the event
alternative proposals are received and considered, the HRA, in reaching its decision, will
compare those proposals to our plan and consider factors including the following:
a. the effect upon the city's tax base;
b. the effect upon employment;
C. the effect upon existing businesses, property owners and employees in the area;
d. the aesthetic quality and its harmony with the design 'of Phase I;
e. the appropriateness of any proposed uses to the area; and
f. the effect that the redevelopment will have in relation to the city's development
• plans for the Clover Leaf property; and
g. the ability of the proposers to carry out the proposal to completion.
5. If the HRA, in its sole and absolute discretion, selects an alternative proposal for Phase
II, CSM will relinquish any right or interest under the contract to the Phase H property
onto its development. CSM will, however, remain fully committed to the development
of the Phase I property according to the terms of the current contract.
The foregoing represents a statement of our intent and willingness to enter into an amendment of the
Contract for Redevelopment which will modify the contract along the lines outlined above. Obviously,
the proposed modifications are subject to negotiation, finalization and execution of a formal document
of amendment.
As a final matter, we want to assure you that CSM remains fully committed to honor all of its
obligations under the contract which the HRA approved on Monday night; and firmly believes that the
development contemplated in that contract would be beneficial to Richfield.
Sincerely,
Dave Carland
Vice President
DC/vb
A
CONTRACT FOR
PRIVATE DEVELOPMENT
THIS AGREEMENT, made and entered into this day of , 1994,
by and between THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR
THE CITY OF RICHFIELD, MINNESOTA, a Minnesota public body corporate and
politic (HRA), CSM CORPORATION, a Minnesota corporation (Redeveloper).
WITNESSETH:
WHEREAS, the City of Richfield and HRA have established the
Interstate-Lyndale-Nicollet Redevelopment Project Area ("Project Area") under the
authority of Minnesota Statutes, Chapter 469 (the "Act"), and have established
within the Project Area a Redevelopment Tax Increment Financing District ("TIF
District") and adopted a Financing Plan ("TIF 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 Interstate-Lyndale-Nicollet Redevelopment Project Area and in
accordance with the TIF Plan adopted by the City, on November 12, 1985, and HRA
on October 21, 1985, and subsequently amended, following extensive study and
• preliminary work conducted by the City and HRA and others engaged by them; and
WHEREAS, the Redeveloper has proposed a development ("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 from third parties
and from the HRA within the Project Area ("Redevelopment Property") and to
develop the Redevelopment Property for and in accordance with this Agreement; and
WHEREAS, consistent with the TIF Plan, the HRA is willing to provide
financial assistance in accordance with the provisions of this Agreement;
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 :
JBD67324
RC125-68
4
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.
"Authority" means the Housing and Redevelopment Authority in and for the
City of Richfield, or any successors or assigns.
"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, pursuant to Section 4.5 of this Agreement.
"City" means the City of Richfield.
"Closing" with respect to each phase means the date on which title to the
property in that phase is transferred to the Redeveloper by the HRA.
• "Completion of Construction" means with respect to any phase the completion
of construction of the Minimum Improvements for that phase except for tenant finish
work.
"Construction Contract" means a contract or contracts which provides for
completion of a phase on the Minimum Improvements .
"County" means the County of Hennepin.
"Event of Default" means an action by the Redeveloper listed in Article X of
this Agreement.
"Equity" means contributions or funds by Redeveloper sufficient to satisfy the
providers of Financial Commitments and to satisfy the other obligations for which
Equity is required hereunder.
"Final Development Plan" means the plan submitted by the Redeveloper to the
City for review in connection with its PUD application.
"Financial Commitment" means a written document which sets forth the
conditions which, if satisfied by the Redeveloper, entitles it to a loan in a specified
amount at specific loan terms.
"Minimum Improvements" means the improvements to be constructed by the
Redeveloper on the Phase I Property and the Phase II Property.
JW67324
RC125-68 2
"Minnesota Environmental Policy Act" means the statutes located at Minnesota
• Statutes Sections 116D.01 et se g., as amended.
"Minnesota Environmental Rights Act" means the statutes located at Minnesota
Statutes Sections 116B.01 et seg., as amended.
"National Environmental Policy Act" means the federal law located at 42 U. S. C.
Section 4311 et seg., as amended.
"Phase I Minimum Improvements" means the improvements to be constructed
by the Redeveloper on the Phase I Property.
"Phase II Minimum Improvements" means the improvements to be constructed
by the Redeveloper on the Phase II Property.
"Phase I Property" means that portion of the Redevelopment Property which
is described as such in the attached Exhibit A.
"Phase II Property" means that portion of the Redevelopment Property which
is described as such in the attached Exhibit A.
"Redeveloper" means CSM Corporation, a Minnesota corporation.
"Redevelopment Property" means the real property described as such of
Exhibit A of this Agreement.
• "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 Act, 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 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 delays which are the direct result of strikes,
other labor troubles, fire or other casualty to the Minimum Improvements, litigation
commenced by third parties which, by injunction or other similar judicial action,
directly results in delays, or acts of any federal, state or local governmental unit
other than those provided for under this Agreement or any other cause 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.
JW67324
RC125-68 3
A. Redevelopment Property Description;
• B . Certificate of Completion;
C. [Blank];
D. Phase I Limited Revenue Note ("Note 111);
E. Phase II Limited Revenue Note ("Note II") .
Section 1.3. Rules of Interpretation. (01) This Agreement shall be
interpreted in accordance with and governed by the laws of the State of Minnesota;
(02) 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;
(03) 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 .
•
•
JBD67324
RC125-66 4
ARTICLE II
• REPRESENTATIONS
Section 2.1. Representations by the Redeveloper. (01) 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.
(02) 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.
(03) 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.
(04) 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.
(05) 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;
Section 2.2. Representations by HRA. The HRA makes the following
representations as the basis for the undertakings herein contained.
(01) The HRA is authorized by law to enter into this Agreement and to carry
out their obligations hereunder.
(02) 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.
(03) The Project Area and TIF District have been properly and legally
established and are currently fully operative. The TIF District was certified on
December 5, 1985; and the first tax increment from the TIF District was remitted to
the HRA in 1987.
.7
JBD67324
RC125-68 5
• ARTICLE III
SITE ASSEMBLY
Section 3.1. Statement of Intent. It is the intention of the parties that the
tracts of land which comprise the Redevelopment Property are to be acquired
through a combination of direct acquisitions by the Redeveloper and acquisitions by
the HRA followed by conveyances to the Redeveloper. It is further the intention of
the arties that whenever .. ossible. direct acquisition by the, Redeveloper is
Section 3.2. Phase I Property. (a) Promptly upon the execution of this
Agreement by the parties and upon the mutual agreement of the parties concerning
the boundaries of the land to be included, the HRA shall commence eminent domain
action for the purpose of acquiring fee simple absolute title to the Phase I Property,
the HRA shall further seek to acquire title to and possession of the Phase I Property
by the earliest date permitted in accordance with Minnesota Statutes, § 117.042.
(b) During the pendency of such actions, the Redeveloper shall be required
to promptly pay all expenses incurred by the HRA in connection with the prosecution
thereof, such expenses include legal, survey, title, appraisal, relocation, process
service, court costs and similar expenses. The HRA shall, not more often than the
monthly during the pendency of the action, furnish the Redeveloper with a written
• itemized statement of all such expenditures. Redeveloper shall have two weeks from
the receipt of such statement to pay the same.
(c) Not later than five days prior to any date on which the HRA is required
to deposit any amount into court in order to obtain title and possession to portions
of the Phase I Property or to make relocation benefit payments to persons entitled
to such payments, Redeveloper shall deliver to the HRA funds payable to the HRA
in the amount of any such deposit or payment. The HRA shall then have the right,
and subject to the terms and conditions hereof, the obligation to use such funds to
make such deposit or such payments. The HRA shall have no obligation to repay
such funds received deposited or paid pursuant to this Agreement should the
redevelopment covered by this Agreement not be completed for any reason.
(d) The obligation of the HRA to make the deposit and obtain title to and
possession of any of the parcels which make up the Phase I Property shall, unless
waived in writing by the HRA, be specifically subject to the following:
1. Redeveloper is not in default of any provisions of this Agreement
and all amounts due and payable under paragraphs (b) and (c)
above 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 (which, if
ifii
other forms of security are not 'air acceptable to A JBD67324
RC125-68 6
HRA, may include the right of the HRA to take an assignment of
• leases) all reasonably acceptable to the HRA which will assure
payment by the Redeveloper of:
(i) any condemnation award for the Phase I Property in
excess of the previously deposited sums;
(ii) any relocation benefits for Phase I which are not yet
paid;
(iii) repayment to the HRA of the additional
reimbursement described in 3.2(h) in the event that
Redeveloper fails to complete the Phase I Minimum
Improvement within the time period provided for in
Section 4.5;
(iv) the obligation of Redeveloper provided for in
3.2(i);
(v) the obligations of Redeveloper provided for in
3.3(i);
(vi) repayment to the HRA of the additional
reimbursement described in 3.3(m) in the event that -
Redeveloper fails to complete the Phase II Minimum
Improvements within the time period provided for in
• Section 4.5;
(vii) the obligation of Redeveloper to make payments to
the HRA pursuant to the separate agreement
contemplated in Section 3.2 (d) (10) .
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 it is satisfied in all respects with
the nature and condition of the Phase I Property, and accepts
the same AS IS and WHERE IS.
5. The HRA is satisfied that the Redeveloper has obtained, or will
be obtaining, fee simple title to any portions of the Phase I
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 Phase I Minimum
Improvements.
•
JM67324
RC125-68 7
• 7. Redeveloper has supplied the HRA with written evidence
reasonably acceptable to the HRA that at least 75% of the rentable
space for Phase I has been leased.
8. Redeveloper has supplied 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 -
Phase I and the continuation of construction to completion. 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 Phase I Property.
9. A 1
10. The parties have entered into a separate written agreement
providing for the sale by the HRA to the Redeveloper of an
adjacent parcel of land ("Church Parcel"). The agreement shall
provide for payment by installments of an amount not to exceed
the HRA's per square foot cost.
11. The HRA has reviewed and approved the Concept Plan.
12. The parties have reached written agreement regarding the
location and nature and cost of any public improvements to be
• located on the Redevelopment Property.
13. The Redeveloper has furnished the HRA 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 existence of any
contaminant, pollutant or hazardous substance in, on or under
the Phase.I Property.
(e) Following the date on which the HRA has obtained title and possession
of the Phase I Property it shall convey the same to the Redeveloper by quit claim
deed. Such conveyance shall take place not later than 10 days following the date
that the HRA has acquired the Phase I Property, and the Redeveloper has furnished
the HRA with written evidence reasonably satisfactory that all the provisions of
paragraph (d) above remain true; and all governmental approvals licenses and
permits needed for commencement of construction of the Minimum Improvements -
Phase I have been obtained. The deed shall contain a restriction valid until the
issuance of a Certificate of Completion for Phase I which allows the Phase I Property
to be developed only in accordance with the Concept Plans.
Following default and termination of this Agreement for the Redeveloper's
failure to satisfy the conditions of this paragraph (e), the HRA shall have the
unrestricted right to utilize the Phase I Property in any manner which it, in its sole
discretion deems appropriate, including, without limitation, the sale of all or part
of the Phase I Property to others, all on terms and for amounts which the HRA in its
exclusive judgment deems appropriate.
JBD67324
RC125-68 8
r In the event that the HRA elects to sell all or part of the Phase I Property, the
HRA agrees to reimburse the Redeveloper from, and only from, the sale price (if
any), amounts expended by the Redeveloper in connection with acquisition of the
Phase I Property and paid to the HRA pursuant to section 3.2(b) and (c) after first
deducting from the sale price:
1. Amounts still owing the HRA under section 3.2(b) and (c) and the
amount of any remaining obligations under section 3.2 ( d ) 3. (i) - (vii) .
2. All expenditures incurred by the HRA in connection with such
subsequent transaction which were intended to be paid through the sale
price.
3. All amounts necessary to reimburse the HRA for any loss of tax
increment or for any costs of holding the Phase I Property as a result
of such default by the Redeveloper.
The Redeveloper acknowledges that the HRA's obligation hereunder shall be
enforceable against no other source then the sale price, if any, and does not
constitute a lien or encumbrance on the Phase I Property. This provision places no
fiduciary obligation on the HRA to act in any manner which would preserve, protect,
secure or enhance the Phase I Property or the amount of reimbursement which the
Redeveloper might receive.
(f) On the date of Closing, and as a further precondition to the HRA's
obligations to deliver title, Redeveloper shall provide the HRA with alien, in
recordable form and recordable against the Phase I Property. The lien shall be in
a form acceptable to the HRA and in an amount deemed by the HRA in its reasonable
judgment to be sufficient to cover each of the matters described in Section 3.2(d) (3)
above. The HRA agrees that it will, from time to time, hear and consider requests
from the Redeveloper to release or modify the lien, or to subordinate the same, and
will do so if in its reasonable judgment such action will not impair the adequacy of the
HRA's security. Unless the HRA specifically determines otherwise, the lien provided
for in this paragraph is an additional form of security to the other forms of security
interest provided for in 3.2 (d) (3) above.
(g) Reimbursement of Redeveloper's Expenses. It is the intention of the
parties that the funds which Redeveloper has expended in connection with and
related to the acquisition of the Phase I Property should be reimbursed to the extent
and in the manner hereinafter provided. It is further understood that Redeveloper
would not otherwise have undertaken such expenditures absent reimbursement.
Accordingly, at closing, the HRA shall execute and deliver to the Redeveloper a note
in substantially the form of the attached Exhibit E ("Note V). The Note I shall be
paid according to its terms and, except as provided in paragraph (h) below, will
constitute the sole and exclusive source of reimbursement to the Redeveloper for its
expenditures.
(h) Additional Reimbursement. In addition to Note I, the HRA shall deliver
to the Redeveloper along with Note I, a payment in the amount of A
Redeveloper shall be obligated to repay this amount if construction o the Phase I
Minimum Improvements is not completed within the time established in Section 4.5.
The HRA may secure this obligation by any of the forms of security available to it
40 under this Agreement; or by any other form of security reasonably acceptable to the
parties.
JBD67324
RC125-68 9
APR 25 194 15:24 HOLME9 & GRAVEN
yrs..
- .i
Revised pages for
Contract for Dev.
HRA Letter no. 38
April 25, 1994
In the event that the HRA elects to sell all' or part of the Phase I Property, the
HRA agrees to reimburse the Redeveloper from; `awd only from, the sale price (if
any), amounts expended by the Redeveloper in connection with acquisition of the
Phase I Property and paid to the HRA pursuant to section, 3.2(b) and (c) after first
deducting from the sale price
1. Amounts still owing the HRA under section 3.2(b) and (c) and the
amount of any remaining obligations under section 3.2(d)3. (i)-(vii).
2. All expenditures incurred by the HRA in connection with .such
subsequent transaction which were intended to he paid through the sale
price.
3. All amounts necessary to reimburse the HRA for any loss of tax
increment or for any costs of holding the Phase I Property as a result
of such default by the Redeveloper.
The Redeveloper acknowledges that the HRA's obligation hereunder shall be
enforceable against no other source then the sale price, if any, and does not
constitute a lien or encumbrance on the Phase I Property, This provision places no
fiduciary obligation on the HRA to act In any manner which would preserve, protect,
secure or enhance the Phase I Property or the amount of reimbursement which the
Redeveloper might receive.
( f ) On the date of Closing, and as a further precondition to the HRA's
obligations to deliver title, Redeveloper shall provide the HRA. with alien, in
recordable form and recordable against the Phase I Property. The lien shall be in
a form acceptable to the HRA and in an amount deemed b the HR A in its reasonable
judgment to be sufficient to cover each of the matters described in Section 3.2(d) (3)
above. The IRA agrees that it will, from time to time, hear and consider requests
from the Redeveloper to release or modify the lien, or to subordinate the same, and
will do so if in its reasonable judgment such action will not impair the adequacy of the
HRA's security. Unless the HRA specifically determines otherwise, the lien provided
for in this paragraph is an additional form of security to the other forms of security
interest provided for in 3.2(d) (3) above.
(g) Reimbursement of Redeveloper's Ex eases. It is the intention of the
parties that the funds which Redeveloper has expended in connection with and
related to the acquisition of the Phase I Property should be reimbursed to the extent
and in the manner hereinafter provided. It is further understood that Redeveloper
would not otherwise have undertaken such expenditures absent reimbursement.
Accordingly, at closing, the HRA shall execute and deliver to the Redeveloper a note
in substantially the form of the attached Exhibit E ("Note I") . The Note I shall be
paid according to its terms and, except as provided, in paragraph (h) below, will
constitute the sole and exclusive source of reimbursement to the Redeveloper for its
expenditures.
(h) Additional Reimbursement. In addition, to Note I, the HRA shall deliver
to the Redeveloper along with Note I, a payment in the amount of AS .x:'"'??
Redeveloper shall be obligated to repay this amount if construction of ie ? I
141nimum Improvements is not completed within the time established in Section 4.5.
• The HRA may secure this obligation by any of the forms of security available to it
under this Agreement; or by any other form of security reasonably acceltable to the
parties.
JBD67324
RC125-68 9
R --
Redeveloper_ Liability. Notwithstanding anything herein to the
contrary, in the event the Redeveloper shall fail or refuse to perform its obligations
under paragraphs (b) and (c) above, or fail to satisfy the conditions set forth in
paragraph (d) above0 then the ERA, uponwritten notice thereof from Redeveloper,
shall immediately discontinue its acquisition activities, and thereafter, the
i Redeveloper's sole obligation shall be: i) to reimburse the ERA for the costs and
expenses incurred by the ERA in connection with its Phase I and Phase II acquisition
activities; ii) to immediately pay the HRA any amount due and owing under Section
3.2(d) (10), in the event that closing on the Church Parcel has taken place; and iii)
to indemnify and save harmless the ERA 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 whether for Phase I
or Phase II or the Church Parcel, and the ERA's sole remedy shall be to obtain such
reimbursement and indemnity from the Redeveloper.
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JW67324
AC125-68 10
Section 3.3. Phase II Property. The Redeveloper shall have the primary
responsibility for acquiring the individual parcels of land which comprise the Phase
II Property; and agrees to commence and diligently pursue such activities
..::..:..::..::.
immediate) upon the execution of this Agreement..::. Notlater.:: than A
?the Redeveloper
will provide the ?YRA with the following information together with supporting material
all of which shall be in writing and reasonably satisfactory to the HRA.
(a) That it has taken reasonable steps to acquire all the Phase II Property.
(b) That any owner who has requested mediation has been afforded the
opportunity for mediation with respect to the purchase price to be paid
• for such owner's property.
JBD67324
RC125-68 11
(c) That financing, whether in the form of Equity, Financial Commitments
40 or otherwise, necessary for the acquisition of the Phase II Property and
for the construction of the Phase II Minimum Improvements is in the
reasonable judgment of the Redeveloper likely to be available.
(d) That Redeveloper, based upon preliminary environmental reviews and
other inspections of the Property, is not aware of any conditions,
environmental or otherwise, that would prevent Redeveloper from
preceding with the acquisition and development of the Property.
(e) A list of the properties with respect to which purchase agreements or
options to purchase have been executed.
(f) A list of lands with respect to which such agreements or options have
not been executed.
(g) A request that the HRA undertake condemnation activities, and the
parcels to which such activities relate, together with a deposit deemed
adequate by the HRA to cover the fees and expenses of those retained
by the HRA to provide legal, survey, appraisal, relocation and title
services in connection with such acquisition. The request shall also
include (i) an acknowledgment by the Redeveloper that if the HRA does
approve the request, the Redeveloper's obligations pursuant to Section
3.2(b) and (c) shall be applicable as well to Phase II; and (ii) the form
of written agreement and security, reasonably acceptable to the HRA
in the nature of the agreement described in Section 3.2(d) (3). The
• request shall also include a statement of whether it is necessary for the
HRA to proceed in accordance with Minnesota Statutes, § 117.042.
Failure to make this statement as a part of the initial request does not
preclude the Redeveloper from subsequently making it.
(h) If the Redeveloper supplies the items contained in paragraphs (a)-(g)
above, the HRA agrees that it will, in good faith, and following a review
and verification of the same, and following delivery to it of an
agreement applicable to the Phase II Property in the nature of the
agreement described in Section 3.2 (d) (13) , undertake the steps
necessary to acquire fee simple title to the portions of the Phase II
Property to which the request relates, and in accordance with
Minnesota Statutes, 4 117.042 to the extent requested.
(i) The acquisition of the requested portions of the Phase II Property shall
be discontinued at any time prior to the date that title and possession
has passed to the HRA 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 3.2(d) (10) .
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 with respect to the
acquisition of the Phase II Property or the payment of relocation
benefits therefore.
JM67324
RC125-68 12
3. The HRA determines in the exercise of its reasonable judgment
A that the Redeveloper's obligation to pay for the acquisition of the
Phase II 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 establishes to the HRA's reasonable satisfaction
that material adverse market conditions or environmental or title
problems not reasonably anticipated at the time condemnation was
requested, 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 Phase II Property), following prompt and
diligent efforts to obtain the same, have made the Phase II
development infeasible.
5. Actions by governmental entities have in the reasonable judgment
of the HRA have placed material physical limitations on the
capacity of the Phase II Property to be developed as
contemplated, and in accordance with the Concept Plan.
6. The costs of acquisition, including land, relocation, fees and
other expenses to be paid by the Redeveloper exceed $4,562,608
for Phase II, it being understood that the HRA shall have no
obligation to pay or assist the Redeveloper in the payment of any
I such costs.
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 3.2(c).
The HRA shall, upon becoming aware of the reasons stated above and
verifying the same with the Redeveloper, immediately discontinue its
acquisition activities, and thereafter, the Redeveloper's sole obligation
shall be to reimburse the HRA for the costs and expenses incurred by
the HRA in connection with its Phase II 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 indemnify 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, payments due Redeveloper under Note I or Note II;
undertakings by Redeveloper under Section 3.2 (d) (3) , 3.3 (g) , and
3.3(i) and liens placed on the Redevelopment Property pursuant to
Section 3.3 (1) and 3.2 (f) . '..px?xi;r?x sa?phha a
s
JBD67324
RC125-68 13
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.
Once the HRA has acquired title and possession to the Phase II
Property (as requested), the Redeveloper shall be obligated
unconditionally to comply with all of its obligations hereunder to acquire
and develop the Phase II Property and any limitations to the
Redeveloper's liability contained in this paragraph 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 claims or causes arising out of as occasioned by the failure or
refusal of the Redeveloper, for any reason, to acquire the said Phase
II Property following the transfer of title and possession to the HRA.
(j) Once the HRA has acquired the Phase II Property, it shall convey the
same to the Redeveloper by quit claim deed. The preconditions to such
conveyance shall be as described in Section 3.2(e) and (f) above, and
the deed shall contain a restriction in the nature of the restriction
described in 3.2(e). Subsequent disposition of the Phase II Property
following a failure of Redeveloper to receive title under this paragraph
shall be subject to the same provisions as those contained in section
3.2(e).
(k) Reimbursement of the expenses incurred by the Redeveloper in
connection with acquisition of the Phase II Property shall be made in
accordance with and subject to the terms of the note in substantially the
form of the attached Exhibit F ("Note III'). Payment according to its
terms will, except as provided in paragraph (m) below, constitute the
sole and exclusive manner of reimbursement to the Redeveloper for its
expenditures in connection with the Phase II Property.
(1) The HRA may condition its obligations to transfer the Phase II Property
upon the execution and delivery to it or a lien of like nature to the lien
described in 3.2(f).
(m) At the time the HRA delivers Note II to the Redeveloper, it shall also
<[''as additional reimbursement for
pay the Redeveloper A »><< >»><>».......
Redeveloper expenditures. Redeveloper shall be obligated to repay
this amount if construction of the Minimum Improvements in Phase II is
not completed within the time established in Section 4.5. The HRA may
secure this obligation by any of the forms of security available to it
under this Agreement; or by any other form of security reasonably
acceptable to the parties.
JW67324
RC125-68 14
APR 25 '94 15:25 HOLMES & GRAVEN
a
P. 3/4
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.
Once the HR,A has acquired title and possession to the Phase II
Property (as requested), the Redeveloper shall be obligated
unconditionally to comply with, all of its Obligations hereunder to acquire
and develop the Phase IT Property and any limitations to the
Redeveloper's liability contained in this paragraph shall not be
applicable. The Redeveloper farther agrees to indemnify and save
harmless the HRA, the City and their officers, agents and employees
from any claims or causes arising out of as occasioned by the failure or
refusal of the Redeveloper, for any reason, to acquire the said Phase
II Property following the transfer of title and possession to the HRA.
(3) Once the HRA has acquired the Phase XI Property, it shall convey the
game to the Redeveloper by quit claim deed. The preconditions to such
conveyance shall be as described in Section 3.2(e) and (f) above, and,
the deed shall contain a restriction in the nature of the restriction
described in 3.2(e). Subsequent disposition of the Phase II property
following a failure of Redeveloper to receive title under this paragraph,
shall be subject to the same provisions as those contained in section
3.2(e).
(k) Reimbursement of the expenses incurred by the Redeveloper in
connection with acquisition of the Phase II Property shall be made in
accordance with and subject to the terms of the note in substantially the
form of the attached Exhibit F ("Note III'). Payment according to its
terms will, except as provided in paragraph (m) below, constitute the
sole and exclusive manner of reimbursement to the Redeveloper for its
expenditures in connection with the Phase lI Property.
(1) The HRA„ may condition its obligations to transfer the Phase IT Property
upon the execution and delivery to it or a lien of like nature to the lien
described in A >e 3.2 (f) .
(m) At the time the HRA delivers, Not.II to the Redeveloper, it shall also
pay the Redeveloper A <`as additional reimbursement for
s>, ;
Redeveloper expenditures. RedevY•eloper shall be obligated to repay
this amount if construction of the Minimum Improvements In Phase IT is
not completed within the time established in section 4. 5. The HRA may
secure this obligation by any of the forms of security available to it
under this Agreement; or by any other form of security reasonably
acceptable to the parties.
4
J"W§7aaa
RC125-68 14
ARTICLE IV
CONSTRUCTION OF NIINH" IMPROVEMENTS
Section 4.1. Agreement to Construct. Subject to the acquisition of the
Redevelopment Property, the Redeveloper agrees that it will construct the Minimum
Improvements on each phase in accordance with the approved Concept Plans.
Section 4.2. Demolition. The Redeveloper shall, at its sole expense, raze and
remove all structures on Redevelopment Property including any abandoned City
utilities.
Section 4.3. Soil Correction - Contamination. As between the parties hereto
and the City, the Redeveloper shall have the sole responsibility and 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 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 HRA has, for its own purposes,.: reviewed .
i ai `W l ti 5 ; e .
and approved the Redevelopers Final Development Plan: :.::;::..:..
Within thirty (30) days after execution of this Agreement 'by the Y2 edeveloper, the
Redeveloper shall submit schematic Concept Plans including a marketing plan and
• tenant mix projections and the anticipated dates for commencement and completion
of construction. The Concept Plans shall depict the Minimum Improvements and shall
be in conformity with this Agreement, the Final Development Plan ?>as the
same may be subsequently modified by the City, and all applicable 'state " and local
laws and regulations. The HRA shall approve the Concept Plans if they (a) conform
to the terms and conditions of this Agreement and the Final Development Plan €
#tas the same may be subsequently modified by the City; (b) conform to all
applicable federal, state, and local law, ordinances, rules and regulations; (e)
describe in reasonable detail the Minimum Improvements for each phase. The parties
anticipate that the Minimum Improvements and the land will, upon completion, have
a market value of approximately $7,100,000 for Phase I and 7,500,000 for Phase II.
No approval by the HRA shall relieve the Redeveloper of the obligation to comply
with the terms of this Agreement, the terms of the Redevelopment Plan, applicable
federal, state and local laws, ordinances, rules and regulations, or to construct_the
Improvements. The HRA reserves the unrestricted right to reject the Concept Plans
if in its sole discretion the HRA determines that the above referenced conditions
have not been met. Such Concept Plans shall, in any event, be deemed approved
unless rejected in writing by the HRA, in whole or in part. Such rejection shall set
forth in detail the reasons therefor, and shall be made within twenty (20) days after
the date of their receipt by the HRA. If the HRA rejects the Concept Plans in whole
or in part, the Redeveloper shall submit new or corrected Concept Plans within
twenty (20) days after written notification to the Redeveloper of the rejection. The
provisions of this Section relating to approval, rejection, and resubmission of
corrected Concept Plans shall continue to apply until the Concept Plans have been
approved by the HRA.
If the Redeveloper desires to make any material change in the Concept Plans
after their approval by the HRA, the Redeveloper shall submit the proposed change
JW67324
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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. The
Redeveloper shall complete the construction of all of the Phase I Minimum
Improvements within twelve (12) months after commencement of construction and the
Phase II Minimum Improvements within 18 months following the date on which all of
the Phase II Property is conveyed to it. "Commencement of construction" shall
mean, for the purpose of this Agreement, the date upon which the Redeveloper has
commenced soil correction procedures. All work with respect to the Minimum
Improvements to be constructed or provided by the Redeveloper shall be in
conformity with the Concept Plans as submitted by the Redeveloper and approved
by the HRA.
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 the Minimum Improvements for each phase contemplated
by the Concept Plans, the HRA shall inspect the construction to determine whether
such Minimum Improvements are completed substantially in accordance with the terms
of this Agreement. If the HRA is satisfied, it will furnish the Redeveloper with a
Certificate of Completion. Such certification 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 Agreement, and in the Deed with
respect to the obligations of the Redeveloper to construct the Minimum Improvements
with respect to the Phase for which the certificate relates.
is 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
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• 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 have 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.
0
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ARTICLE V
PUBLIC IMPROVEMENTS
Section 5.1. [Blank]
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APR 25 194 15:25 HOLMES & GRAVEN P.4/4
MR
ARTICLE VI
INSURANCE
Section 6. ].. Insurance. Prior to Closing on any phase, the Redeveloper shall
provide evidence of insurance, for that phase, covering property, casualty,
workers compensation, fire, indemnity, general liability, employer's liability and
such other coverages and in such amounts as the HRA shall reasonably require.
Section 6.2. Casualty - Proceeds. Prior to Closing on the Phase I Property,
the parties will agree to the appropriate mechanism for distribution of insurance
proceeds in the event that all or a significant part of the Minimum Improvements on
any part of the Redevelopment Property are destroyed by a covered casualty and the
Redeveloper elects not to rebuild. It is the understood intention ?of%the parties;that
in such event s"<.
MAR"n
•
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proceeds shag be used to repay the HR,A for payments made to the Redeveloper
under Sections S.2(h) and 3.3(m) (except that such amount will be reduced annually
in an amount which reflects the fiscal disparity payments made in the preceding year
with respect to the Redevelopment Property as determined by the HRA's fiscal agent)
and that proceeds in excess of such amount shall first be used to prepay any amount
due the IRA, from the transaction described in Section 3.2(d) (10), and to pay any
amount then due the HRA under this Agreement. The HRA shall then be entitled to
escrow, from any remaining proceeds, an amount in its reasonable judgment
necessary to provide it adequate replacement security in light of the extent of the
loss, Redeveloper's remaining obligations under the Agreement and the existence of
other forms of security.
The Redeveloper further agrees that notwithstanding any provision in this
Article to the contrary, it will keep and maintain in full force and effect throughout
the term of Note I, insurance policies insuring the Minimum Improvements against
casualty loss in the amount at least equal to the greater of: (#) their replacement
value, or (ii) the amount of any mortgage indebtedness plus amounts sufficient, in
the HRA's reasonable judgment, to cover the matters described in the first
paragraph of this section 6.2 and that such policies will designate the HRA as an
additional insured.
1-1
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t
ARTICLE VI
INSURANCE
Section 6.1. Insurance. Prior to Closing on any phase, the Redeveloper shall
provide evidence of insurance, for that phase, covering property, casualty,
workers compensation, fire, indemnity, general liability, employer's liability and
such other coverages and in such amounts as the HRA shall reasonably require.
Section 6.2. Casualty - Proceeds. Prior to Closing on the Phase I Property,
the parties will agree to the appropriate mechanism for distribution of insurance
proceeds in the event that all or a significant part of the Minimum Improvements on
any part of the Redevelopment Property are destroyed by a covered casualty and the
elects not to rebuild. It is the understood intention of the parties that
Redeveloper .............. .::::::::::::::::::::::::.:<.;:::::.::<.;;:;::.:;;::.:<.:.:«.>:
t n€:.;a.;:.excet.:<;:::::.; ::..:.. ::::::::..:................
in such even:::::
> ::.;.;:::>:::;::»;<.>;;;::;::;:T-?;:<.;;::;:.:<:.:::::.>:::::::: ....:::::.:::.::::.......... ,
::: »>::;::.;:::: ::..::::::..........::....:....:: :.....;? :..:::.. insurance
:sJezt:?::rebaaythe first $600,bb0 of
proceeds shall be used to repay the HRA for payments made to the Redeveloper
under Sections 3.2(h) and 3.3(m) (except that such amount will be reduced annually
in an amount which reflects the fiscal disparity payments made in the preceding year
with respect to the Redevelopment Property as determined by the HRA's fiscal agent)
and that proceeds in excess of such amount shall first be used to prepay any amount
due the HRA from the transaction described in Section 3.2(d)(10), and to pay any
amount then due the HRA under this Agreement. The HRA shall then be entitled to
escrow, from any remaining proceeds, an amount in its reasonable judgment
necessary to provide it adequate replacement security in light of the extent of the
• loss, Redeveloper's remaining obligations under the Agreement and the existence of
other forms of security.
The Redeveloper further agrees that notwithstanding any provision in this
Article to the contrary, it will keep and maintain in full force and effect throughout
the term of Note I, insurance policies insuring the Minimum Improvements against
casualty loss in the amount at least equal to the greater of : (i) their replacement
value, or (ii) the amount of any mortgage indebtedness plus amounts sufficient, in
the HRA's reasonable judgment, to cover the matters described in the first
paragraph of this section 6.2 and that such policies will designate the HRA as an
additional insured.
•
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•
ARTICLE VII
TAX INCREMENT
Section 7.1. [Blank]
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ARTICLE VIII
FINANCING
Section 8.1. Limitations Upon Encumbrance. Prior to the completion of the
Minimum Improvements, as certified by the HRA pursuant to Section 4.8 of this
Agreement, neither the Redeveloper nor any successor in interest to the
Redevelopment Property or any part thereof shall engage in any financing or any
other transaction creating any mortgage or other encumbrance or lien upon the
Redevelopment Property 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.
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 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 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
expressly assumed 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 below the amounts estimated by the parties
as set forth in section 4.4. (It being understood that such consent shall in no way
act to bind or influence the power of the City, 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
JBD67324
RC125-68 21
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 financing
for the construction of the Minimum Improvements by the Redeveloper, the HRA
agrees to modify and to subordinate its right under this Agreement to the mortgage
or other financing agreement held by the financial institution providing such funds,
provided, however, that nothing in this Section 8.5 shall be deemed to require the
HRA to agree to any modification or subordination of its rights which in its judgment
would be contrary to its best interests, or to the prompt and timely construction of
the Minimum Improvements; or which would fail to obligate any Holder to the
provisions of Section A
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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. [ B lank ] .
0
11 and restrictions to the extent that they relate to such part); provided, that the fact
Section 9.3. Prohibition Against Transfer of Property and Assignment of
Agreement. For the foregoing reasons, the Redeveloper represents and agrees that:
(01) 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 under the Agreement, and any other
purpose authorized by the Agreement, prior to the completion of construction of the
Minimum Improvements 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 the Agreement or the Redevelopment
Property 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.
(02) The HRA shall be entitled to require, except as otherwise provided in
the 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 the Agreement by the
Redeveloper (or, in the event the transfer is of or relates to part of the
Redevelopment Property, such obligations to the extent that they relate to such
part) ; (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 the Agreement and agreed
to be subject to the terms of the Redevelopment Plan (or, in the event the transfer
is of or relates to part of the Redevelopment Property, such obligations, , conditions,
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
JBD67324
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extent otherwise specifically provided in the 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 the 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 the Agreement) no transfer of, or change with respect to, ownership
in the Redevelopment Property or any part thereof, 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 the 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.
(03) Certain Transfers Exempted. Notwithstanding the prohibitions against
transfer contained in this section, and the rights granted the HRA under Section 9.4
the Redeveloper shall have the right to transfer ownership interests in the
Redeveloper, this Agreement, or the Property to family members of Gary S. Holmes,
or to entities controlled by Gary S. Holmes or his family members, for tax and/or
estate planning purposes, or due to the death or incapacity of Gary S. Holmes or
other shareholders of Redeveloper. Such transfer shall be subject to the provisions
• of section 9.3(04).
(04) 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 the Agreement or
otherwise with respect. to the construction of the Minimum Improvements, 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. Information as to Stockholders or Partners. In order to assist
in the effectuation of the purposes of this Article IX of this Agreement, the
Redeveloper agrees that during the period between the execution of the Agreement
and completion of the Minimum Improvements as certified by the HRA, (a) the
Redeveloper will promptly notify the HRA of any and all changes whatsoever in the
ownership of stock or partnership interests, legal or beneficial which in the
aggregate exceed ten percent (10%) of the issued stock or partnership interests in
Redeveloper, or of any other act or transaction involving or resulting in any change
in the ownership or stock or partnership interests of such Redeveloper or in the
relative distribution thereof, which in the aggregate exceeds ten percent (10%) of
the issued stock or partnership interests of Redeveloper, and (b) Redeveloper shall,
at such time or times as the HRA may request, furnish the HRA with a complete
statement, subscribed and sworn to by the President, general partner, or other
executive officer of Redeveloper, setting forth all of the stockholders or partners
of Redeveloper and the extent of their respective holdings,, and in the event any
• other parties have a beneficial interest in such stock or partnership interest, their
names and the extent of such interest, all as determined or indicated by the records
of Redeveloper, by specific inquiry made by any such officer, of all parties who on
JW67324
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• the basis of such records own ten percent (10%) or more of the stock or partnership
interest of Redeveloper, and by such other knowledge or information as such officer
shall have.
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.
11
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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 :
(01) Failure by the Redeveloper to pay when due any payments required to
be paid under Article III of this Agreement, or under the agreement contemplated
in Section 3.2(d) (10) .
(02) Subject to Unavoidable Delay, failure by the Redeveloper to observe and
substantially perform any covenant, conditions, obligation, or agreement on its part
to be observed or performed hereunder.
(03) 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.
(04) If the Redeveloper shall file a petition or answer seeking reorganization
• or arrangement under the federal bankruptcy laws.
(05) If the Redeveloper, on a petition in bankruptcy filed against them, 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.
(06) If the Redeveloper is in default under any mortgage and falls to cure any
such default within thirty (30) days after written demand from the HRA to do so.
(07) 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 HRA may, in addition to any other
remedies or rights given the HRA under this Agreement, but only after at least
thirty (30) days notice to the Redeveloper and its failure to cure (unless a different
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
taken within such 30-day period, find the Redeveloper in default (Default) and take
any one or more of the following actions :
(01) Suspend its performance under the Agreement until it receives
• assurances from the Redeveloper or mortgagee reasonably deemed adequate by the
HRA, that the Redeveloper will cure the default and continue performance under the
Agreement.
JIW67324
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• (02) Cancel pursuant to Minnesota Statutes Section 559.21, and rescind the
Agreement, in which case the 30-day cure period shall commence with notice of
cancellation .
(03) 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.
(04) Subject to the limitations stated in Article III take whatever action at law
or in equity may appear necessary or desirable to the HRA to collect any payments
due under this Agreement, or to enforce performance and observance of any
obligation, agreement or covenant of the Redeveloper 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. Provided further,
however, that should any Holder succeed by foreclosure of the mortgage or deed in
lieu thereof, to Redevelopers interest in the Redevelopment Property or any part
thereof, it shall, notwithstanding the foregoing provision, be obligated and. shall
agree in writing to perform all of the obligations of the Redeveloper, to the extent
that the same have not theretofore been performed by the Redeveloper with respect
to the Redevelopment Property or part thereof, set forth in Article III, Article IV.
Said Holder shall have no obligations pursuant to this Agreement other than as
• specifically set forth in the foregoing sentence.
Section 10.2.1. RiLrht to Develop the Proiect with Others. In the event that
this Agreement is terminated by the HRA prior to the closing on any phase 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 portion of the Redevelopment Property to which the termination
relates or any part thereof 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. 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 HRA is intended to be exclusive of
any other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. 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.
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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.
40
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• ARTICLE XI
ADDITIONAL PROVISIONS
Section 11.1. Conflict of Interests; HRA Representatives Not inaiviaually
Liable. No member, official, or employee of the HRA shall have any personal
interest, direct or indirect, in the Agreement, nor shall any such member, official
or employee participate in any decision relating to the Agreement which affects his
personal interests or the interests of any corporation, partnership, or association
in which he is, directly or indirectly, interested. No member, official, or employee
of the HRA shall be personally liable to the Redeveloper, or any successor in
interest, in the event of any default or breach by the HRA or for any amount which
may become due to the Redeveloper 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. Provisions Not Merced With Deed. None of the provisions of
this Agreement art intended to be or shall be merged by reason of any Deed
transferring any interest in any part of the. Property and any such Deed shall not
be deemed to affect or impair the provisions of this Agreement. Unless otherwise
indicated in this Agreement, the provisions of this Agreement shall be binding upon
the successors and assigns of the parties hereto.
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
6700 Portland Avenue South
Richfield, Minnesota 55423
Attention : Executive Director
•
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As to the Redeveloper: CSM Corporation
2561 Territorial Road
St. Paul, MN 55114-1500
Attention: President
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. Counterparts. This Agreement maybe simultaneously executed
in any number of counterparts, all of which shall constitute one and the same
instrument.
Section 11.7. Relocation Consultants. Redeveloper shall, not later than 10
days following the date of this Agreement retain the services of a relocation
consultant acceptable to the HRA. The relocation consultant shall assist the
Redeveloper in providing relocation services and information concerning relocation
benefits to individuals and entities who will be displaced as a result of Redeveloper's
acquisition activities for both Phase I and Phase II. The services and benefits to be
provided by Redeveloper shall conform to those which would be provided by the HRA
if it were acquiring the properties. All fees and charges for the services of the
consultant and all payments of relocation benefits shall be the sole obligation of the
Redeveloper. Redeveloper shall be responsible for timely notification to all affected
persons concerning the services and benefits available to them and the process to
follow to obtain such services and benefits.
0
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. IN WITNESS WHEREOF, the parties hereto have set their hands and seals as
of the day and year first above written.
0
STATE OF MINNESOTA )
) SS
COUNTY OF )
THE HOUSING AND REDEVELOPMENT
AUTHORITY OF THE CITY OF
RICHFIELD, MINNESOTA
By
Its
By
Its: Executive Director
CSM CORPORATION
By
Its
The foregoing instrument was acknowledged before me this day of
, 1994, by and , the
Chairperson and Executive Director of The Housing and Redevelopment Authority
in and for the City of Richfield, Minnesota.
STATE OF MINNESOTA )
SS
COUNTY OF )
Notary Public
The foregoing instrument was acknowledged before me this day of
1994, by and , respectively,
of , on behalf of the corporation.
•
Notary Public
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EXHIBIT D
$1,869,036
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
THE HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF RICHFIELD
LIMITED REVENUE TAX INCREMENT NOTE
(PHASE I)
The Housing and Redevelopment Authority in and for the City of Richfield (the
"Authority"), hereby acknowledges itself to be indebted and, for value received,
promises to pay to the order of CSM Corporation, Inc., a Minnesota corporation (the
"Owner"), solely from the source, to the extent and in the manner hereinafter
provided, the original principal amount of this Note, being One Million Eight
Hundred Sixty-nine Thousand Thirty-six Dollars ($1,869,036) (the "Principal
Amount"), together with interest thereon accrued from the date of this Note, at the
rate of interest of eight and one half percent (8.5$) per annum (the "Stated Rate"),
in the amount and on the dates (the "Scheduled Payment Dates") set forth on the
Payment Schedule attached as Schedule A hereto and in the amounts stated thereon
(the "Scheduled Payments"). Interest accruing from the date of this Note, shall be
added to principal on a semi-annual basis on each and
until
Any payments 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
Authority, which has been issued by the Authority to aid in financing a "project,"
as defined in Minnesota Statutes, § 469.174, of the Authority within and for the
benefit of its Interstate-Lyndale-Nicollet Redevelopment Project Area and Tax
Increment Financing District ("District").
THE NOTE IS NOT A DEBT OF THE AUTHORITY, THE CITY OF RICHFIELD,
OR THE STATE OF MINNESOTA (THE "STATE"), AND NEITHER THE AUTHORITY,
THE CITY OF RICHFIELD, 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 Authority shall have received as
of such Scheduled Payment Date "Available Tax Increment," hereby defined by the
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• Authority as tax increment received from April 1, 1994 with respect to that certain
real property located within the District and described in the attached Schedule B
(hereinafter "Property") after first deducting the HRA's ten percent administrative
charges; but only to the extent that such tax increment has not been used to make
a Scheduled Payment as of the Scheduled Repayment Date, has not been used to make
any required fiscal disparities payment.'
For purposes of this Note, a "Payment Date" shall mean each of the Scheduled
Payment Dates set forth on Exhibit A attached hereto and each additional Payment
Date required in connection with any of the terms of this Note as set forth below,
because of changes made in Minnesota Statutes, 94 469.174-469.179.
Notwithstanding anything to the contrary in this Note, on each of the Payment
Dates, the Authority shall pay to the Owner the Available Tax Increment up to a
maximum of an amount necessary to amortize over the term of this Note, at the Stated
Rate, all expenditures made by the Redeveloper to acquire and assemble the
Property. The Authority's fiscal agent will review the statement of such
expenditures and will determine the amount payable annually and during the full
term of this Note, said determination to be final. To the extent that on any Payment
Date the Authority is unable to make a payment from Available Tax Increment as a
result of having received, as of such date, no Available Tax Increment, such failure
shall not constitute a default under this Note and the amount of such Scheduled
Payment (principal and interest) shall be deemed paid and, except as provided
below, the Authority shall have no obligation under this Note, or otherwise, to
subsequently pay any such deficiency unless the deficiency is the direct result of
the failure of the County to timely remit the proper amount of Tax Increment, in
• which case, such deficiency shall be paid promptly upon remittance by the County.
This note shall terminate upon the earlier of i) the date when the Redeveloper has
been fully reimbursed as reasonably determined by the Authority's fiscal agent; ii)
the date on which the Authority shall no longer be entitled to receive tax increment
from the District; iii) the date on which this Note is otherwise terminated according
to its terms.
This Note shall terminate and the Authority's obligation to make any payments
under this Note shall be discharged and the Authority shall have no obligation and
incur no liability to make any payments hereunder immediately upon the occurrence
of an Event of Default under the Contract for Private Development, dated
, 1994, between the Authority and the Owner, subject to the Notice
and cure provisions of Section 9.2 thereof.
This Note shall not be payable from or constitute a charge upon any funds of
the Authority or the City of Richfield and the Authority 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.
'In the event that during the term of this Note the City of Richfield makes either
of the elections available to it under Laws 1992, Chapter 511, Article 9, Section 26,
• then the term "Available Tax Increment" shall also exclude the annual increase in tax
increment resulting from the election up to an amount necessary to amortize the
$500,000 additional reimbursement over the remaining term of the Note at 8.5% per
annum.
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• The Owner shall never have or be deemed to have the right to compel any
exercise of any taxing power of the Authority or the City of Richfield or of any other
public body, and neither the Authority or the City of Richfield nor any director,
commissioner, council member, board member, officer, employee or agent of the
Authority or the City of Richfield, 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 shall not be transferable or assignable, in whole or in part, by the
Owner without the prior written consent of the Authority; provided that the Owner
may pledge the payments hereunder to a lender or a successor purchaser of the
project, but only with prior written notice thereof to the Authority.
This Note may be prepaid in full at any time at the option of the Authority;
and may also be prepaid at the request of the Owner, but in either instance only if
the Authority first 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 Authority and is entitled to
the benefits thereof, which Resolution is incorporated herein by reference.
IT IS HEREBY CERTIFIED AND RECITED that an 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 Authority or the City of Richfield outstanding on the date hereof
and on the date of its actual issuance and delivery, does not cause the indebtedness
of the Authority or the City of Richfield to exceed any constitutional or statutory
limitation thereon.
IN WITNESS WHEREOF, the Board of Commissioners of the Authority has
caused this Note to be executed by the manual signatures of the Chairperson and the
Executive Director of the Authority and has caused this Note to be dated
, 1994.
Chairperson
Executive Director
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EXHIBIT E
$1,125,759
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
THE HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF RICHFIELD
LIMITED REVENUE TAX INCREMENT NOTE
(PHASE II)
The Housing and Redevelopment Authority in and for the City of Richfield (the
"Authority"), hereby acknowledges itself to be indebted and, for value received,
promises to pay to the order of CSM Corporation, Inc., a Minnesota corporation (the
"Owner"), solely from the source, to the extent and in the manner hereinafter
provided, the original principal amount of this Note, being One Million One Hundred
Twenty-five Thousand Seven Hundred Fifty-nine Dollars ($1,125,759) (the
"Principal Amount"), together with interest thereon accrued from the date of this
Note, at the rate of interest of eight and one half percent (8.5%) per annum (the
"Stated Rate"), in the amount and on the dates (the "Scheduled Payment Dates") set
forth on the Payment Schedule attached as Schedule A hereto and in the amounts
stated thereon (the "Scheduled Payments"). Interest accruing from the date of this
Note, shall be added to principal on a semi-annual basis on each and
until
Any payments 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
Authority, which has been issued by the Authority to aid in financing a "project,"
as defined in Minnesota Statutes, § 469.174, of the Authority within and for the
benefit of its Interstate-Lyndale-Nicollet Redevelopment Project Area and Tax
Increment Financing District ("District").
THE NOTE IS NOT A DEBT OF THE AUTHORITY, THE CITY OF RICHFIELD,
OR THE STATE OF MINNESOTA (THE "STATE"), AND NEITHER THE AUTHORITY,
THE CITY OF RICHFIELD, 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 Authority shall have received as
of such Scheduled Payment Date "Available Tax Increment," hereby defined by the
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. Authority as tax increment received from April 1, 1994 with respect to that certain
real property located within the District and described in the attached Schedule B
(hereinafter "Property") after first deducting the HRA's ten percent administrative
charges; but only to the extent that such tax increment has not been used to make
a Scheduled Payment as of the Scheduled Repayment Date, has not been used to make
any required fiscal disparities payment.'
For purposes of this Note, a "Payment Date" shall mean each of the Scheduled
Payment Dates set forth on Exhibit A attached hereto and each additional Payment
Date required in connection with any of the terms of this Note as set forth below,
because of changes made in Minnesota Statutes, 6§ 469.174-469.179.
Notwithstanding anything to the contrary in this Note, on each of the Payment
Dates, the Authority shall pay to the Owner the Available Tax Increment up to a
maximum of an amount necessary to amortize over the term of this Note, at the Stated
Rate,- all expenditures made by the Redeveloper to acquire and assemble the
Property. The Authority's fiscal agent will review the statement of such
expenditures and will determine the amount payable annually and during the full
term of this Note, said determination to be final. To the extent that on any Payment
Date the Authority is unable to make a payment from Available Tax Increment as a
result of having received, as of such date, no Available Tax Increment, such failure
shall not constitute a default under this Note and the amount of such Scheduled
Payment (principal and interest) shall be deemed paid and, except as provided
below, the Authority shall have no obligation under this Note, or otherwise, to
subsequently pay any such deficiency unless the deficiency is the direct result of
the failure of the County to timely remit the proper amount of Tax Increment, in
which case, such deficiency shall be paid promptly upon remittance by the County.
This note shall terminate upon the earlier of i) the date when the Redeveloper has
been fully reimbursed as reasonably determined by the Authority's fiscal agent; ii)
the date on which the Authority shall no longer be entitled to receive tax increment
from the District; iii) the date on which this Note is otherwise terminated according
to its terms.
This Note shall terminate and the Authority's obligation to make any payments
under this Note shall be discharged and the Authority shall have no obligation and
incur no liability to make any payments hereunder immediately upon the occurrence
of an Event of Default under the Contract for Private Development, dated
, 1994, between the Authority and the Owner, subject to the Notice
and cure provisions of Section 9.2 thereof.
This Note shall not be payable from or constitute a charge upon any funds of
the Authority or the City of Richfield and the Authority 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.
'In the event that during the term of this Note the City of Richfield makes either
of the elections available to it under Laws 1992, Chapter 511, Article 9, Section 26,
is then the term "Available Tax Increment" shall also exclude the annual increase in tax
increment resulting from the election up to an amount necessary to amortize the
$100,000 additional reimbursement over the remaining term of the Note of 8.5% per
annum.
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The Owner shall never have or be deemed to have the right to compel any
exercise of any taxing power of the Authority or the City of Richfield or of any other
public body, and neither the Authority or the City of Richfield nor any director,
commissioner, council member, board member, officer, employee or agent of the
Authority or the City of Richfield, 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 shall not be transferable or assignable, in whole or in part, by the
owner without the prior written consent of the Authority; provided that the Owner
may pledge the payments hereunder to a lender or a successor purchaser of the
project, but only with prior written notice thereof to the Authority.
This Note may be prepaid in full at any time at the option of the Authority;
and may also be prepaid at the request of the Owner, but in either instance only if
the Authority first 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 to proper action of the Authority and is entitled
to the benefits thereof, which Resolution is incorporated herein by reference.
IT IS HEREBY CERTIFIED AND RECITED that an 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 Authority or the City of Richfield outstanding on the date hereof
and on the date of its actual issuance and delivery, does not cause the indebtedness
of the Authority or the City of Richfield to exceed any constitutional or statutory
limitation thereon.
IN WITNESS WHEREOF, the Board of Commissioners of the Authority has
caused this Note to be executed by the manual signatures of the Chairperson and the
Executive Director of the Authority and has caused this Note to be dated
, 1994.
Chairperson
Executive Director
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0 EXHIBIT B
CERTIFICATE OF COMPLETION
The undersigned hereby certifies that , a Minnesota
corporation, has fully and completely complied with its obligations under Article IV
of that document entitled "Contract for Private Development," dated ,
1994, between THE HOUSING AND REDEVELOPMENT IN AND FOR THE CITY OF
RICHFIELD and CSM CORPORATION, a Minnesota corporation with respect to
construction of the Improvements 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
Improvements under such above-referenced Article on the above-referenced tract. '
The recording of this Certificate of Completion also extinguishes and releases the
• deed restriction contained in Document No.
DATED:
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY
OF RICHFIELD
RV
Its Chairperson
Air
Its Executive Director
I* [Note: A separate certificate of completion will be issued for each of the phases. ]
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