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HomeMy WebLinkAbout2001-020 EDAR1 its adoption: Member Kay Lasman introduced the following resolution and moved EDA RESOLUTION NO. 2001 -20 RESOLUTION AUTHORIZING EXECUTIVE DIRECTOR TO EXECUTE A DEVELOPMENT AGREEMENT WHEREAS, the Brooklyn Center Economic Development Authority has caused to be prepared a draft Development Agreement between the Authority and Jerry's Enterprises, Inc. a Minnesota corporation (the Developer), a draft form of which is attached hereto and incorporated herein by reference as Exhibit "A"; and WHEREAS, the basic terms and conditions set forth in Exhibit "A" are reasonable and proper; and WHEREAS, the redevelopment of the property described in the draft Development Agreement would remove blighted property conditions; and WHEREAS, subsequent to the acquisition of the Development Property and the holding of a public hearing on the sale of the Development Property, the Authority will agree to convey the Development Property to the Developer in consideration for the purchase price paid as to be determined pursuant to the Development Agreement. NOW, THEREFORE, BE IT RESOLVED by the Economic Development Authority in and for the City of Brooklyn Center, Minnesota as follows: The Board of Commissioners hereby approves the draft Development Agreement in substantially the form submitted and the Executive Director is hereby authorized to execute a Development Agreement on behalf of the Authority provided such final Development Agreement is in substantially the form set forth in Exhibit "A" as to the general terms upon which the Authority would proceed and provides that the Developer will pay the first $1.45 Million in the costs of acquisition, the Authority will pay the next $300,000 in costs of acquisition, and the Developer and the Authority will each pay 50% of the costs of acquisition, if any, above $1.75 Million, the Developer must, if improvements are constructed, construct Improvements having a market value at least equal to $3.6 Million, and the restrictions set forth in Exhibit E of the Development Agreement are substantially the same with the allowance for tobacco sales as an incidental sale and the allowance of a Bachman's type of lawn and garden store. October 8, 2001 Date Presid t The motion for the adoption of the foregoing resolution was duly seconded by member Bob Peppe and upon vote being taken thereon, the followin voted in favor thereof: Myrna Kragness, Kay Lasman, Bob eppe, and Tim Ricker; and the following voted against the same: Ed Nelson; whereupon said resolution was declared duly passed and adopted. Brad Hoffman BC DEV AGREEMENT REDLINE.doc EDA RESOLUTION NO. 2001-20- EXHIBIT A DEVELOPMENT AGREEMENT BY AND BETWEEN ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER AND JERRY'S ENTERPRISES, INC. October S, 2001 1326475v3 Brad Hoffman BC DEV AGREEMENT REDLINE.doc Pa e 1 h1)A RESOLUTION NO. 2001-20 Table of Contents (continued) ARTICLE I Section 1. ARTICLE II Section 2. Section 2. ARTICLE III Section 3. Section 3. Section 3. Section 3. Section 3. Section 3. ARTICLE IV Section 4. Section 4 Section 4 Section 4 Section 4 Section 4 Section 4 Section 4 Section 4 Section 4 ARTICLE V Section 5 DEFINITIONS 1 Definitions ARTICLE VI FINANCING Section 6.1 Section 6.2 Section 6.3 Section 6.4 Section 6.5 Section 6.6 REPRESENTATIONS AND WARRANTIES 1 Representations and Warranties of the Authority 2 Representations and Warranties by the Developer acquisition and CONVEYANCE OF DEVELOPMENT PROPERTY 1 Acquisition of Development Property 2 3 4 5 6 Conveyance of Development Property "As Is" Conveyance Environmental Matters Closing on the Development Property Closing Costs DEMOLITION OF EXISTING IMPROVEMENTS; CONSTRUCTION OF MINIMUM IMPROVEMENTS 1 Demolition of Existing Improvements .2 Construction of Minimum Improvements .3 Preliminary Plans .4 Construction Plans .5 Certificate of Release of Forfeiture .6 Compliance with Environmental Requirements .7 Additional Responsibilities of the Developer .8 Certificate of Completion .9 Certain Approvals .10 Business Subsidy Agreement CONSTRUCTION OF PUBLIC IMPROVEMENTS .1 No Public Improvements Financing Encumbrance of the Development Property Copy of Notice of Default to Mortgagee Mortgagee's Option to Cure Events of Default Defaults Under Mortgage Subordination of Agreement ARTICLE VII INSURANCE AND CONDEMNATION Section 7.1 Insurance Section 7.2 Condemnation -2- 326475vRed 3 to V2; 10/05/01 Page 5 5 7 7 7 7 7 7 8 9 9 9 9 9 10 10 10 10 11 11 12 12 13 13 13 13 13 13 13 15 15 16 Brad Hoffman BC DEV AGREEMENT REDLINE.doc Table of Contents (continued) UTION NO. 2001-20 Page ARTICLE VIII DEVELOPER COVENANTS 17 ARTICLE IX TRANSFER LIMITATIONS AND INDEMNIFICATION }-817 Section 9-1 8,1 Representation as to Development 48 Section 92. &Z Limitations on Transfer 4-812 Section 973 $,3 Indemnification 4.91. Section 974 4 Limitation 4.911 ARTICLE X D EVENTS OF DEFAULT AND DAMAGES 20 Section 10.19 Events of Default Defined 2012 Section 10.2 2.2 Developer Events of Default 20.19 Section 10.3 22.3. Authority Events of Default 24 2Q Section 4-074 2A Authority Remedies on Default 24. Section 10.5 9,5 Developer Remedies on Default 24.21 Section 49:76 9.6 No Remedy Exclusive 22 2l Section 10.7 91 No Additional Waiver Implied by One Waiver 22 21 Section 40:8 9.8 Reimbursement of Attorneys' Fees 22 21 ARTICLE X4 X ADDITIONAL PROVISIONS 23 22 Section -1- 1-1-10.1 Conflicts of Interest 23 22 Section 11.2 10.2 Real Estate Agents 23 22 Section 11.3 10,3 Titles of Articles and Sections 23 22 Section 4-1 -410.4 Notices and Demands 23 22. Section 4- 1410.5 Counterparts 2322 Section 44,6 10.6 Law Governing 23 22 Section 11.7 1L 11.7 117 Consents and Approvals 24 22 Section 44410.8 Representatives 24 22 Section 44,9 10.9 Superseding Effect 24 22 Section 4- 1.1010.10 Relationship of Parties 24 2 Section 11.11 10.11 Mediation 24 2 Section 11.12 10.12 Venue 24 2 Section 11.13 i Provisions Surviving Rescission or Expiration 24 21 Section 11.14 10.14 Time of Essence 24 22 1 EXHIBIT A LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY EXHIBIT B CERTIFICATE OF COMPLETION 1 EXHIBIT C QUIT CLAIM DEED 1 EXHIBIT D PERMITTED ENCUMBRANCES 1 EXHIBIT E DEVELOPMENT STANDARDS 1 -3- 1326475vRed 3 to V2; 10/05/01 Page 3 Brad Hoffman BC DEV AGREEMENT REDLINE.doc NO. 2001-20 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement is made and entered into this -8 day of October, 2001, by and between the ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER, a public body corporate and politic organized and existing under the laws of the State of Minnesota (the "Authority and Jerry's Enterprises, Inc., a Minnesota corporation (the "Developer RECITALS WHEREAS, on December 19, 1994, the Authority and the City of Brooklyn Center (the "City adopted the Modified Redevelopment Plan (the "Redevelopment Plan") for Housing Development and Redevelopment Project No. 1 (the "Redevelopment Project Area which set forth development objectives for the Redevelopment Project Area. One of the objectives of the Redevelopment Plan is to acquire blighted or deteriorated property for rehabilitation or clearance and redevelopment. WHEREAS, in order to achieve the objectives of the Redevelopment Plan, the Authority has agreed to acquire certain real property located in the Project Area more particularly described on Exhibit A attached hereto (which property as so described is hereinafter referred to as the "Development Property"), and has agreed to convey the Development Property to the Developer pursuant to the terms of this Agreement. WHEREAS, the Developer has agreed to demolish and clear certain Existing Improvements (as hereinafter defined) located on the Development Property, and to construct any future improvements on the Development Property in accordance with the provisions of this Agreement. WHEREAS, the Authority believes that the actions contemplated by this Agreement are in the best interests of the residents of the City and will foster the redevelopment of blighted property, and will otherwise benefit the health,.safety, morals and welfare of the residents of the City, in accordance with the public purpose and provisions of the applicable State and local laws and requirements under the Redevelopment Plan. NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the others as follows: 326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE doc EDA RESOLUTION NO. 2001-20 ARTICLE I DEFINITIONS Section 1.1 Definitions. All capitalized terms used and not otherwise defined herein shall have the following meanings unless a different meaning clearly appears from the context: "Act" means Minnesota Statutes, Sections 469.001 -.047 and 469.090- .1081, as amended. "Acquisition Costs" means all of the costs incurred by the Authority in connection with the acquisition of the Development Property including but not limited to, any taxes, assessments or utilities required to be provided or paid by the Authority as a result of its acquisition of the Development Property, all costs for appraisers, title work, legal proceedings and any federal, state or local relocation benefits. "Agreement" means this Development Agreement, as the same may be from time to time modified, amended or supplemented. "Authority" means the Economic Development Authority of Brooklyn Center. "Authority Additional Contribution" means fifty percent (50 of the amount by which the Acquisition Costs exceed the Developer Initial Contribution plus the Authority Initial Contribution. "Authority Initial Contribution" means the amount, not to exceed $300,000, by which the Acquisition Costs exceed the Developer Initial Contribution; "Authority Representative" means the Executive Director of the Authority or his designee. "Board" means the Board of Commissioners of the Authority. "Certificate of Completion" means the certificate in substantially the form attached hereto as Exhibit B, signed by the Authority Representative certifying the completion of the Minimum Improvements. "City" means the City of Brooklyn Center, Minnesota. "Closing" means the closing on the conveyance of the Development Property. "Closing Date" means the date on which the Development Property is conveyed by the Authority to the Developer, which date shall be no later than 30 days after the Authority acquires fee title to the Development Property. "Completion Date" means the date the Certificate of Completion with respect to the Minimum Improvements is delivered. 1326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE.doc 1 EDA RESOLUTION NO. 2001-20 "Construction Plans" means the plans, specifications, drawings and related documents for the construction of Minimum Improvements which shall be as detailed as the plans, specifications, drawings and related documents which are submitted to the City's planning commission. "Construction Lender" means the lender or lenders on the Construction Mortgage Loan. "Construction Mortgage Loan" means any construction mortgage loan or loans which provide construction or permanent financing for the construction of any Minimum Improvements. "County" means the County of Hennepin, Minnesota. "Declaration: means the declaratiog of restrictions to be recorded against th Develo ment Property upon issuance of the •Ceatificate of Com i •tot ug r •f Standards. "Deed" means the quit claim deed executed by the Authority conveying the Development Property to the Developer, in the form attached hereto as Exhibit C. assigns. "Developer" means Jerry's Enterprises, Inc., a Minnesota corporation, its successors or "Developer Condemnation Proceeds" means any condemnation proceeds received by the Developer for its interests in the Development Property. "Developer Event of Default" means the occurrence of an Event of Default set forth in Section 11.2 hereof. "Developer Initial Contribution" means $1,450,000 plus any Developer Condemnation Proceeds. "Development" means the Development Property and any Minimum Improvements to be constructed thereon as provided in this Agreement. hereto. "Development Property" means the real property legally described on Exhibit A attached "Development Standards" means the requirements for the Minimum Improvements set forth on Exhibit E attached hereto. "Event of Default" means any of the events described in Sections 11.2 or 11.3. "Existing Improvements" means all buildings and structures located on the Development Property, including the surface parking lot, when conveyed to the Developer. "Minimum Improvements" any buildings or structures to be constructed on the 1326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT z, IIN r REDLINE.do EDA RESOLUTION NO. 2001-20 Development Property, which excludes the Existing Improvements. "Mortgage" means any mortgage loan that is secured, in whole or in part, with the Development Property. "Net Proceeds" means any money paid by an insurer under a policy or policies of insurance required to be provided and maintained by the Developer under Section 10.1 of this Agreement. "Permitted Encumbrances" means the permitted encumbrances described in Exhibit D attached hereto. "Preliminary Plans" means the preliminary design, specification and architectural plans for the Minimum Improvements (including, without limitation, materials specifications) submitted by the Developer to the Authority. "Purchase Price" means the Acquisition Costs of the Development Property less, if applicable, the Authority Initial Contribution and the Authority Additional Contribution. "Redevelopment Plan" means the redevelopment plan for the Redevelopment Project Area approved by the City and the Authority. "State" means the State of Minnesota. "Title Company" means Commonwealth Land Title Insurance Company, and its successors and assigns. "Unavoidable Delays" means delays, outside the control of the party claiming its occurrence, which are the direct result of (a) unusually severe or prolonged bad weather, (b) acts of God, fire or other casualty to the Development, (c) litigation commenced by third parties which, by injunction or other similar judicial action, directly results in delays, (d) the outbreak of war or insurrection, (e) acts of any Federal, State or local governmental unit, other than the Authority, which directly result in delays, (f) strikes, other labor trouble, (g) delays in delivery of materials for the Minimum Improvements, or (h) soil conditions of the Development Property. 326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEVAGREEMENT REDLINE.doc EDA RESOLUTION NO. 2001-20 ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1 Representations and Warranties of the Authority. The Authority makes the following representations and warranties: (a) The Authority is a public body corporate and politic and a governmental subdivision of the State, duly organized and existing under the Act and the Authority has the authority to enter into this Agreement and carry out its obligations hereunder. (b) The Authority has taken all action necessary to create the Redevelopment Project Area and to approve this Agreement and to authorize the execution and delivery of this Agreement and any other documents or instruments required to be executed and delivered by the Authority pursuant to this Agreement. (c) The execution, delivery and performance of this Agreement and any other documents or instruments required pursuant to this Agreement by the Authority does not, and consummation of the transactions contemplated therein and the fulfillment of the terms thereof will not, conflict with or constitute on the part of the Authority a breach of or default under any existing (i) indenture, mortgage, deed of trust or other agreement or instrument to which the Authority is a party or by which the Authority or any of its property is or may be bound, or (ii) legislative act, constitution or other proceeding establishing or relating to the, establishment of the Authority or its officers or its resolutions. (d) There is not pending, nor to the Authority's current actual knowledge is there threatened, any suit, action or proceeding against the Authority before any court, arbitrator, administrative agency or other governmental authority that materially and adversely affects the validity of any of the transactions contemplated hereby, the ability of the Authority to perform its obligations hereunder, or as contemplated hereby or thereby, or the validity or enforceability of this Agreement. (e) No member of the Board of the Authority or officer of the Authority, has either a direct or indirect financial interest in this Agreement, nor will any Commissioner of the Authority or officer of the Authority, benefit financially from this Agreement within the meaning of Minnesota Statutes, Section 471.87. (f) The Authority will reasonably cooperate with the Developer and the City with respect to any litigation commenced by third parties with respect to the Development. Section 2.2 Representations and Warranties by the Developer. The Developer represents and warrants that: (a) The Developer is a Minnesota corporation organized and in good standing under the laws of Minnesota, is not in violation of any provisions of its organizational documents or the laws of said State, has power to enter into this Agreement and has duly authorized the 326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE: d oc EDA RESOLUTION NO. 2001-20 execution, delivery and performance of this Agreement by proper action of its members. (b) The execution and delivery of this Agreement, the consummation of the transactions contemplated thereby, and the fulfillment of the terms and conditions thereof do not and will not conflict with or result in a breach of any of the terms or conditions of the Developer's organizational documents, any restriction or any agreement or instrument to which the Developer is now a party or by which it is bound or to which any property of the Developer is subject, and do not and will not constitute a default under any of the foregoing or, to the best of (Re ita knowledge, a violation of any order, decree, statute, rule or regulation of any court or of any state or Federal regulatory body having jurisdiction over Developer or its properties, including its interest in the Development, and do not and will not result in the creation or imposition of any lien, charge or encumbrance of any nature upon any of the property or assets of Developer contrary to the terms of any instrument or agreement to which Developer is a party or by which it is bound. (c) The execution and delivery of this Agreement will not create a conflict of interest prohibited by Minnesota Statutes, Section 471.87. (d) Developer will reasonably cooperate with the City and Authority with respect to any litigation commenced by third parties with respect to the Development. (e) There are no pending or threatened legal proceedings, of which the Developer has notice, contemplating the liquidation or dissolution of the Developer or threatening its existence, or seeking to restrain or enjoin the transactions contemplated by the Agreement, or questioning the authority of the Developer to execute and deliver this Agreement or the validity of this Agreement. 1326475vRed 3 to V2; 10/05/01 Brad BC DEV AGREEMENT REDLINE doc EDA RESOLUTION NO. 2001 ARTICLE III acquisition and CONVEYANCE' OF DEVELOPMENT PROPERTY Section 3.1 Acquisition of Development Property. The Authority agrees to assist the Developer in the acquisition of the Development Property through the exercise of its powers of eminent domain. The Developer acknowledges that the Authority does not warrant the successful conclusion of any eminent domain action or quick take procedures or the accomplishment of any particular result or timetable because of the many variables inherent in any litigation or legal proceeding. The Authority shall not be liable for any consequential or other damages that may arise out of any delays due to environmental conditions, court challenges or elements outside the control of the Authority. Within As soon as possible, but in any event within 30 days of the execution of this Agreement, the Authority will initiate file condemnation proceedings for the Development Property with the rots r o No later than February 1, 2002, or such other date as fly- agreed to requested by the "uthefity ane' the Developer, but in any event not later than April 1. 2002 the Developer shall deposit $1,450,000 in cash with the Authority the lesser of (a) the Authority's appraised value of the Development j or (b) 51,450,000, as earnest money for the payment of the Purchase Price (the "Earnest Money Deposit The Earnest Money Deposit shall be non refundable unless the Authority is unable to acquire the Development Property. Section 3.2 Conveyance of Development Property. The Authority will give the Developer written notice of the Closing Date promptly upon acquisition of the Development Property by the Authority. On the Closing Date, the Authority will convey the Development Property to the Developer pursuant to the Deed in exchange for the Purchase Price. The Authority and the Developer agree that the Closing on the purchase and sale of the Development Property shall occur on the Closing Date. Section 3.3 "As Is" Conveyance. The Developer shall take the conveyance of Development Property on an "AS IS" "WHERE IS" basis, with all faults and defects, without any warranties, express or implied, except those expressly stated in this Agreement, and the Developer waives any claims against the Authority, the City and their respective members and boards, for indemnification, contribution, reimbursement or other payments arising under federal and state law and the common law relating to environmental or any other condition of Development Property. Section 3.4 Environmental Matters. The Authority makes no representation or warranty as to any environmental matters, the accuracy or completeness of the information contained therein. Neither the City nor the Authority shall have any responsibility or obligation to undertake any clean up or remediation on the Development Property. Section 3.5 Closing on the Development Property (a) Time and Place. Subject to the terms and conditions of this Agreement, the Closing on the purchase and sale of the Development Property shall take place on the Closing 1326475vRed V3 to V2; 10/05/01 I Hoffman BC DEV AGREEMENT REDLINE.doc EDA RESOLUTION NO. 2001-20 Date and shall take place at the St. Paul offices of Briggs and Morgan or such other place which is mutually acceptable to the parties. The Authority shall deliver possession of the Development Property on the Closing Date. (b) Authority's Documents. At the Closing, the Authority shall execute, where appropriate, and deliver all of the following Authority's Documents: (i) The Deed properly executed on behalf of the Authority conveying the Development Property to the Developer subject only to the Permitted Encumbrances. (ii) Any abstracts of title in the Authority's possession to any portion of the Development Property which is abstract property. (c) Developer's Documents. At the Closing, the Developer shall execute, where appropriate, and deliver all of the following Developer's Documents: (i) Funds sufficient for payment by the Developer at Closing of the balance of the Purchase Price, recording charges or fees for all documents which are to be placed on record, the fee or charge imposed by any closing agent designated by the Title Company, and any other incidental or related closing costs. this Agreement. (ii) Such other documents as shall be required to carry out the intent of Section 3.6 Closing Costs. The Authority and the Developer each shall pay their own attorneys' fees for the preparation of this Agreement. The Developer shall pay, among other things, the Title Company's closing fee. The Authority shall pay the state deed tax. The Developer shall pay the cost of any surveys, the-eest-ef-any environmental audit s -or work work ordered by the Developer, the premium for any title insurance policy obtained by the Developer, any mortgage registry tax and the cost of recording the Deed, the cost of Developer's inspection of the Development Property and any and all other closing costs related to the transfer of the Development Property to the Developer not specifically agreed to herein to be paid by the Authority. 11 326475vRed 3 to V2; 10/05/01 EDA RESOLUTION NO. 2001-20 ARTICLE IV DEMOLITION OF EXISTING IMPROVEMENTS; CONSTRUCTION OF MINIMUM IMPROVEMENTS Section 4.1 Demolition of Existing Improvements. The Developer will commence the demolition and clearance of the Existing Improvements within ninety (90) after the Closing Date and shall proceed with due diligence to exneditiouslh complete the same within 120 180 days of the Closing Date (the "Completion Date In the event the demolition and clearance of the Existing Improvements are not completed by the Completion Date, the Developer acknowledges that the Authority will request the City to exercise its rights under Minnesota Statutes, Chapter 463, to enter on the Development Property, demolish and clear the Existing Improvements and assess the costs thereof against the Development Property Section 4.2 Construction of Minimum Improvements. The Developer agrees to use its best efforts to construct Minimum Improvements in compliance with the Development Standards within 5 years of the Closing Date. Section 4.3 Preliminary Plans. The Developer agrees that prior to constructing any Minimum Improvements on the Development Property the Developer will submit to the Authority Preliminary Plans for the Minimum Improvements. The Preliminary Plans must be consistent with the Redevelopment Plan, this Agreement, the Development Standards and all applicable State and local laws and regulations, insofar as said consistency may be determined at said preliminary stage. The Preliminary Plans are subject to review and approval by the Authority staff. Section 4.4 Construction Plans (a) Prior to constructing any Minimum Improvements, the Developer shall deliver to the Authority the Construction Plans for the Minimum Improvements. The Authority shall review the Construction Plans with thirty (30) days after receipt and will deliver to the Developer, a written statement approving the Construction Plans or a written statement rejecting the Construction Plans and specifying the deficiencies in the Construction Plans. The Authority shall approve the Construction Plans if: (i) the Construction Plans substantially conform to the terms and conditions of this Agreement and the Development Standards; (ii) the Construction Plans are consistent with the goals and objectives of the Redevelopment Plan; and (iii) the Construction Plans do not violate any applicable federal, State or local laws, ordinances, rules or regulations. If the Construction Plans are not approved by the Authority, then the Developer shall make such changes as the Authority may reasonably require. (b) The approval of the Construction Plans, or any proposed amendment to the Construction Plans, by the Authority does not constitute a representation or warranty by the Authority that the Construction Plans or the Minimum Improvements comply with any applicable building code, health or safety regulation, zoning regulation, environmental law or other law or regulation, or that the Minimum Improvements will meet the qualifications for issuance of a 12 1326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE.doc Pa e13 EDA RESOLUTION NO. 2001-20 certificate of occupancy, or that the Minimum Improvements will meet the needs of the Developer or any other users of the Minimum Improvements. Approval of the Construction Plans, or any proposed amendment to the Construction Plans, by the Authority will not constitute a waiver of an Event of Default. Section 4.5 Certificate of Release of Forfeiture. Intentionally Omitted. Section 4.6 Compliance with Environmental Requirements. The Developer shall comply with all applicable local, State, and federal environmental laws and regulations, and will obtain, and maintain compliance under, any and all necessary environmental permits, licenses, approvals or reviews. As of the date of this Agreement, the Developer has received no written notice or communication from any local, State, or federal official that the activities of the Developer, Authority under this Agreement may be or will be in violation of any environmental law or regulation. Section 4.7 Additional Responsibilities of the Developer. (a) The Developer will construct, operate and maintain, or cause to be operated and maintained, the Minimum Improvements in substantial accordance with the terms of this Agreement, the Redevelopment Plan, and all local, State, and federal laws and regulations (including, but not limited to zoning, building code and public health laws and regulations), except for variances necessary to construct the Minimum Improvements contemplated in the Construction Plans approved by the Authority. (b) The Developer will obtain, in a timely manner, all required permits, licenses, and approvals, and will meet, in a timely manner, all requirements of all applicable local, State, and Federal laws and regulations which must be obtained or met before the Minimum Improvements may be lawfully constructed. (c) The Developer will not construct any building or other structures on, over, or within the boundary lines of any public utility easement unless such construction is provided for in such easement or has been approved by the utility involved. (d) The Developer, at its own expense, will replace any public facilities and public utilities damaged during the construction of the Minimum Improvements, in accordance with the technical specifications, standards and practices of the owner thereof. (e) The Developer will prepare, submit and receive approval from the City and its Planning Commission for the subdivision plat for any portion of the Minimum Improvements, as applicable and appropriate. (f) The Developer will comply with all applicable local, state and federal environmental laws and regulations, as they relate to the Minimum Improvements. Section 4.8 Certificate of Completion. The Developer shall notify the Authority when the construction of the Minimum Improvements have been substantially completed. The Authority shall promptly inspect the Minimum Improvements in order to determine whether the 13 1326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE.doc EDA RESOLUTION NO. 2001-20 same has been constructed in substantial conformity with the approved Construction Plans. If the Authority determines that the Minimum Improvements have not been constructed in substantial conformity with the approved Construction Plans, the Authority shall deliver a written statement to the Developer indicating in adequate detail the specific respects in which the same has not been constructed in substantial conformity with the approved Construction Plans and Developer shall promptly remedy such deficiencies. Promptly upon determining that said Minimum Improvements have been constructed in substantial conformity with the approved Construction Plans, the Authority will furnish to the Developer a Certificate of Completion in the form attached hereto as Exhibit B certifying the completion of the Minimum Improvements. The Certificate of Completion issued for the Minimum Improvements shall conclusively satisfy and terminate the agreements and covenants of the Developer in this Agreement and the Deed as-it- Whereafter, upon filing of the Declaration and Certificate of Completion, the only provisions of this Agreement which shall continue are to the personal obligations of the Developer arc 9.3 and 10.8 and the restrictions on under Sections 8,3 and 9.8. The Developer shall cause the Certificate of Completion ad the Declaration to be recorded in the proper office for recordation of deeds and other instruments pertaining to the Development Property. Section 4.9 Certain Approvals. The Developer acknowledges and agrees that any approval by the Authority given pursuant to this Agreement does not constitute the consent or approval of the City or any other governmental body or entity to the Development, the subdivision of the Development Property, the plans for or the construction of the Minimum Improvements, or any other aspect thereof, including without limitation, use, zoning, building code and watershed requirements, and the Authority shall have no liability to the Developer for damages or otherwise for failure of the Developer to obtain any required consents, approvals, permits and licenses for the Development in accordance with all applicable laws and regulations. Section 4.10 Business Subsidy Agreement. The Developer hereby represents that the Developer's Acquisition Cost and the costs of demolition and clearance of the Existing Improvements is more than 70 percent of the assessor's current year's estimated market value. Based on the Developer's representation, the Authority hereby finds that the provisions of Minnesota Statutes, Section 116J.993 to 116J.995 do not apply. 1326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE doc uR �pa e EDA RESOLUTION NO. 2001-20 15 ARTICLE V CONSTRUCTION OF PUBLIC IMPROVEMENTS Section 5.1 No Public Improvements. No public improvements are to be senstituted constructed by the City or the Authority in connection with this Development Agreement or the Minimum Improvements. 1326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE.doc ARTICLE VI FINANCING Section 6.1 Financing. Prior to the construction of any Minimum Improvements, the Developer will deliver written evidence reasonably acceptable to the Authority of a commitment or commitments for financing the construction of the Minimum Improvements. If the source of such money is a loan from a financial institution, the Developer must also provide evidence of a commitment or commitments from such financial institution to provide such loan. Section 6.2 Encumbrance of the Development Property. Until the Completion Date, neither the Developer nor any successor in interest to the Developer will engage in any financing or any other transaction creating any mortgage or other encumbrance .or lien upon the Development Property, or portion thereof, whether by express agreement or operation of law, or suffer any encumbrance or lien to be made on or attach to the Development Property except for the purpose of obtaining funds only to the extent necessary for making the Minimum Improvements (including, but not limited to, land and building acquisition, labor and materials, professional fees, real estate taxes, construction interest, organization and other indirect costs of development, costs of constructing the Minimum Improvements, and an allowance for contingencies). Section 6.3 Copy of Notice of Default to Mortgagee. If the Authority delivers any notice or demand to the Developer with respect to any Event of Default under this Agreement, the Authority will also deliver a copy of such notice or demand to the mortgagee of any Mortgage at the address of such mortgagee provided to the Authority in a written notice from the Developer or the mortgagee. Section 6.4 Mortgagee's Option to Cure Events of Default. Upon the occurrence of an Event of Default, the mortgagee under any Mortgage will have the right (insofar as the rights of the Authority are concerned), at its option, to cure or remedy such Event of Default. Section 6.5 Defaults Under Mortgage. In the event the Developer is in default under any Mortgage, the mortgagee, within ten (10) days after it becomes aware of any default and prior to exercising any remedy available to it due to such default, will notify the Authority in writing of (i) the fact of default; (ii) the elements of default; and (iii) the actions required to cure the default. If, within the time period required by the Mortgage, the Authority cures any default under the Mortgage, the mortgagee will pursue none of its remedies under the Mortgage based on such default. Section 6.6 Subordination of Agreement. In order to facilitate the obtaining of financing for the construction of the Minimum Improvements, the Authority agrees to subordinate the provisions of the Development Agreement and the Deed to the documents executed in connection with the Construction Loan Mortgage, provided that such subordination shall not deprive the Authority or otherwise limit any of the Authority's rights or remedies under this Agreement nor subordinate the prQhibited uses set forth in the 1326475vRed 3 to V2; 10/05/01 DEV AGREEMENT REDLINE.doc EDA RESOLUTION NO. 2001-20 Development Standards on Exhibit E attached hereto. To evidence the subordination of the III t'1 i 11 1 10 t 1..1 V 4 I Lender. 1326475vRed 3 to V2; 10/05/01 Hoffman BC DEV AGREEMENT REDLINE.doc EDA RESOLUTION NO. 2001-20 18 ARTICLE VII INSURANCE AND CONDEMNATION Section 7.1 Insurance (a) The Until the issuance of the C e of Comnletion, t Developer will obtain and continuously maintain insurance on the entire Development and, from time to time at the request of the Authority, furnish proof to the Authority that the premiums for such insurance have been paid and the insurance is in effect. The insurance coverage described below is the minimum insurance coverage that the Developer must obtain and continuously maintain: (i) Builder's risk insurance, written on the so- called "Builder's Risk-- Completed Value Basis," in an amount equal to one hundred percent (100 of the insurable value of the applicable Ownership Unit or Rental Building at the date of completion, and with coverage available in nonreporting form on the so- called "all risk" form of policy. (ii) Comprehensive general liability insurance (including operations, contingent liability, operations of subcontractors, completed operations and contractual liability insurance) together with an Owner's /Contractor's Policy naming the Authority, and City as an additional insured, with limits against bodily injury and property damage of not less than $1,000,000 for each occurrence (to accomplish the above required limits, an umbrella excess liability policy may be used), written on an occurrence basis. (iii) Workers compensation insurance, with statutory coverage. (b) All insurance required in this Article shall be obtained and continuously maintained in responsible insurance companies selected by the Developer or its successor that are authorized under the laws of the State to assume the risks covered by such policies. The Developer shall deposit annually with the Authority a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Article, each policy must contain a provision that the insurer will not cancel nor modify the policy without giving written notice to the insured and the Authority at least thirty (30) days before the cancellation or modification becomes effective. Not less than fifteen (15) days prior to the expiration of any policy, the Developer or its successor must furnish the Authority evidence satisfactory to the Authority that the policy has been renewed or replaced by another policy conforming to the provisions of this Article, or that there is no necessity for the policy under the terms of this Agreement. In lieu of separate policies, the Developer or its successor may maintain a single policy, blanket or umbrella policies, or a combination thereof, having the coverage required herein, in which event the Developer or its successor will deposit with the Authority a certificate or certificates of the respective insurers as to the amount of coverage in force. (c) The Developer agrees to notify the Authority immediately in the case of damage exceeding $100,000 in amount to, or destruction of, the Minimum Improvements or any 1326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE.doc EDA RESOLUTION NO. 2001-20 portion thereof resulting from fire or other casualty. Subject to the terms of any Mortgage, in the event that any such damage does not exceed $100,000, the Developer will forthwith repair, reconstruct and restore the Minimum Improvements to substantially the same or an improved condition or value as it existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restoration, the Developer or its successor will apply the Net Proceeds of any insurance relating to such damage received by the Developer or its successor to the payment or reimbursement of the costs thereof. In the event the Minimum Improvements or any portion thereof is destroyed by fire or other casualty, and the damage or destruction is estimated to equal or exceed $100,000, then the Developer, within one hundred fifty (150) days after such damage or destruction, subject to the terms of any Mortgage, will proceed forthwith to repair, reconstruct and restore the damaged Minimum Improvements to substantially the same condition or utility value as it existed prior to the event causing such damage or destruction and, to the extent necessary to accomplish such repair, reconstruction and restoration, the Developer will apply the Net Proceeds of any insurance relating to such damage or destruction received by the Developer to the payment or reimbursement of the costs thereof. Developer shall pay the entire cost of repair, reconstruction and restoration if the net proceeds of the insurance are insufficient. Section 7.2 Condemnation. In the event that title to and/or possession of the Development Property and Minimum Improvements, or any material part thereof, is threatened with a taking through the exercise of the power of eminent domain, the Developer will notify the Authority of the threatened taking with reasonable promptness. 326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE doc OLUTION NO. 2001-20 ARTICLE ynl TRANSFER LIMITATIONS AND INDEMNIFICATION Section 94 81 Representation as to Development. The Developer represents to the Authority that its purchase of the Development Property, and its other undertakings under this Agreement, are for the purpose of development, and not for the purpose of speculation in land holding. The Developer acknowledges that, in view of the importance of the development of the Development Property to the general welfare of the Authority and the City, the qualifications and identity of the Developer are of particular concern to the Authority. The Developer further acknowledges that the Authority is willing to enter into this Agreement with the Developer because of the qualifications and identity of the Developer. Section 9-4 8.2 Limitations on Transfer. The rrior to the issuance of the Certificate of Compl tion, the Developer may, with prior written notice to the Authority, sell, assign, convey, or transfer in any mode or manner, all or a portion of this Agreement, the Development Property or the Minimum Improvements to a lender providing construction or permanent financing for the Minimum Improvements. Except as otherwise provided in this Section, prior to the issuance of the Certificate of Completion, the Developer will not sell, assign, convey, lease or transfer in any other mode or manner this Agreement, the Development Property or the Minimum Improvements, or any interest therein, without the express written approval of the Authority which approval shall not be unreasonably withheld. The Authority shall be entitled to require, as conditions to any approval of any sale, assignment, conveyance, use or transfer of 326475vRed 3 to V2; 10/05/01 Hoffman BC DEV AGREEMENT REDLINE.doc EDA RESOLUTION NO. 2001-20 this Development Agreement, the Development Property or the Minimum Improvements that: (a) Any proposed transferee shall have the qualifications and financial responsibility, as determined by the Authority, necessary and adequate to fulfill the obligations undertaken in this Agreement by the Developer; (b) Any proposed transferee, by instrument in writing satisfactory to the Authority and the City and in form recordable among the land records shall, for itself and its successors and assigns, and expressly for the benefit of Authority, have expressly assumed all of the obligations of the Developer under this Agreement and agreed to be subject to all the conditions and restrictions to which the Developer is subject; (c) There shall be submitted to the Authority for review all instruments and other legal documents involved in effecting transfer, and if approved by Authority, its approval shall be indicated to the Developer in writing; (d) The Developer and its transferee shall comply with such other conditions as the Authority may find desirable in order to achieve and safeguard the purposes of the Act, the Development Plan and the Developer Documents; and (e) In the absence of specific written agreement by the Authority and the City to the contrary, no such transfer or approval by the Authority and the City thereof shall be deemed to relieve the Developer or any other party bound in any way by this Agreement or otherwise with respect to the construction of the Minimum Improvements, from any of its obligations with respect thereto. ft f h herein on the transfer of the Development jemetty, S 8.3 Scion .3 Indemnification (a) The Developer releases from and covenants and agrees that the Authority and the City, their governing body members, officers, agents, including the independent contractors, consultants and legal counsel, servants and employees thereof (hereinafter, for purposes of this Section, collectively the "Indemnified Parties shall not be liable for and agrees to indemnify and hold harmless the Indemnified Parties against any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Development to the extent not attributable to the gross negligence of the Indemnified Parties. (b) Except for gross negligence of the Indemnified Parties, the Developer agrees to indemnify the Indemnified Parties, now and forever, and further agrees to hold the aforesaid harmless from any claims, demands, suits, costs, expenses (including reasonable attorney's fees), actions or other proceedings whatsoever by any person or entity whatsoever arising or purportedly arising from the actions or inactions of the Developer (or if other persons acting on its behalf or under its direction or control) under this Agreement, or the transactions contemplated hereby or the acquisition, construction, installation, ownership, and operation of the Development; provided, that this indemnification shall not apply to the warranties made or 1326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE.doc 1 EDA RESOLUTION NO. 20M-20 obligations undertaken by Authority in this Agreement. Section 9:4 &4 Limitation. All covenants, stipulations, promises, agreements and obligations of the Authority, or the Developer contained in this Agreement shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Authority or the Developer, respectively, and not of any governing body member, officer, agent, servant or employee of the Authority, the City or the Developer in the individual capacity thereof. 22 1326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE,doc Pa e 3 23 -20 ARTICLE XEVENTS lX EVENTS OF DEFAULT AND DAMAGES Section 104 9.1 Events of Default Defined. Subject to applicable cure periods, 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 any one or more of the following events: Section 104 91 Developer Events of Default. The following shall be Events of Default for the Developer: (a) The developer shall fail to pay the Purchase Price of the Development Property on the Closing Date; (b) the Developer shall fail to begin demolition of the Existing Improvements within 90 days after Closing and, subject to Unavoidable Delays, to proceed with due diligence to complete the demolition and clearance of the Existing Improvements within one hundred twenty ghtty (1801 days (1 e after Closing, all in conformity with this Agreement, and such failure to begin, or proceed with due diligence to complete, the demolition of the Existing Improvements, shall not be cured within 30 days after written notice to do so. (c) the Developer shall default in or violate its obligations with respect to the construction of the Minimum Improvements (including the nature and the date for the completion thereof), or shall abandon or substantially suspend construction work, and any such default, violation, abandonment or suspension is not cured, ended or remedied within thirty (30) days after written demand by the Authority so to do. Notwithstanding the foregoing, if the default reasonably requires more than thirty (30) days to cure, such default shall not constitute an Event of Default, provided that the curing of the default is promptly commenced upon receipt by the Developer of the notice of the default, and with due diligence is thereafter continuously prosecuted to completion and is completed within a reasonable period of time, and provided that Developer keeps the Authority well informed at all times of its progress in curing the default; provided in no event shall such additional cure period extend beyond ninety (90) days; or (d) there is, in violation of this Agreement, any conveyance or other transfer of the Development Property or any part thereof, and such violation is not cured within thirty (30) days after written demand by the Authority to the Developer; or (e) failure by Developer to observe or perform any other covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement, and the continuation of such failure for a period of thirty (30) days after written notice of such failure from any party hereto. Notwithstanding the foregoing, if the default reasonably requires more than thirty (30) days to cure, such default shall not constitute an Event of Default, provided that the curing of the default is promptly commenced upon receipt by the Developer of the notice of the default, and with due diligence is thereafter continuously prosecuted to completion and is completed within a reasonable period of time, and provided that Developer keeps the Authority 1326475vRed 3 to V2; 10/05/01 BC DEV AGREEMENT REDLINE.doc well informed at all times of its progress in curing the default; provided in no event shall such additional cure period extend beyond ninety (90) days; or (f) the Developer shall (i) file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act of 1978, as amended, or under any similar Federal or State law; or (ii) make an assignment for the benefit of its creditors; or (ii) become insolvent or adjudicated a bankrupt; or if a petition or answer proposing the adjudication of Developer, as a bankrupt or its reorganization under any present or future Federal bankruptcy act or any similar Federal or State law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee or liquidator of Developer, or of the Development, or part thereof, shall be appointed in any proceeding brought against Developer, and shall not be discharged within ninety (90) days after such appointed, or if Developer shall consent to or acquiesce in such appointment. Section 104 9.3 Authority Events of Default. The failure of the Authority to observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement, and the continuation of such failure for a period of thirty (30) days after written notice of such failure from any party hereto shall be an Event of Default for the Authority. Notwithstanding the foregoing, if the default reasonably requires more than thirty (30) days to cure, such default shall not constitute an Event of Default, provided that the curing of the default is promptly commenced upon receipt by the Authority of the notice of the default, and with due diligence is thereafter continuously prosecuted to completion and is completed within a reasonable period of time, and provided that the Authority keeps the Developer well informed at all times of its progress in curing the default; provided in no event shall such additional cure period extend beyond ninety (90) days. Section 10 4 9.4 Authority Remedies on Default. Whenever any Event of Default occurs by the Developer, the Authority may take any one or more of the following actions: (a) Suspend performance under this Agreement until it receives assurances from the Developer, deemed adequate by the Authority, that the Developer will cure its default and continue its performance under this Agreement. (b) Withhold the Certificate of Completion. (c) The Authority may cancel and terminate this Agreement. (d) Take whatever action at law or in equity may appear necessary or desirable to the Authority to collect any payments due under this Agreement, or to enforce performance and observance of any obligation, agreement, or covenant of the Developer under this Agreement. Section 10.3 9.5 Developer Remedies on Default. Whenever any Event of Default occurs by the Authority, the Developer may take whatever action at law or in equity may appear necessary or desirable to the Developer to enforce performance and observance of any obligation, 1326475vRed 3 to V2; 10/05/01 Page 24_ DEV AGREEMENT REDLINE.doc p •a e agreement, or covenant of the Authority under this Agreement, provided however, nothing in this Agreement shall entitle the Developer to make any claim against the Authority for any damages whatsoever. Section 404 9.6 No Remedy Exclusive. No remedy herein conferred upon or reserved to the Authority is intended to be exclusive of any other available remedy or remedies unless otherwise expressly stated, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Authority or the Developer 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 XIII. Section l0:. 2,2 No Additional Waiver Implied by One Waiver. If any agreement 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. Section 404 2,8 Reimbursement of Attorneys' Fees. If the Developer or the Authority shall default under any of the provisions of this Agreement, and the nondefaulting party shall employ attorneys or incur other reasonable expenses for the collection of payments due hereunder, or for the enforcement of performance or observance of any obligation or agreement on the part of the defaulting party contained in this Agreement, the defaulting party will on demand therefor reimburse the nondefaulting party for the reasonable fees of such attorneys and such other reasonable expenses so incurred. 25 1326475vRed V3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE.doc Pa •e hl)A Kh5ULU11UN NO. 2001 -2U ARTICLE MADDMONAL X ADDITIONAL PROVISIONS Section 144 10.1 Conflicts of Interest. No member of the Board or other official of the Authority shall have any financial interest, direct or indirect, in this Agreement, the Development Property or the Minimum Improvements, or any contract, agreement or other transaction contemplated to occur or be undertaken thereunder or with respect thereto, nor shall any such member of the governing body or other official participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. No member, official or employee of the Authority shall be personally liable to the Authority in the event of any default or breach by Developer or successor or on any obligations under the terms of this Agreement. Section 144 10.2 Real Estate Agents. The Authority represents that it has not retained any broker in connection with the transactions contemplated hereby. The Developer has retained D. E. Winter Associates, Inc., in connection with its acquisition of the Development Property and the Developer acknowledges and agrees that it is solely responsible for any fees and expenses of such broker. The Authority and the Developer each hereby agree to indemnify the other from any real estate or other sales commission or fee payable to any other broker hired or engaged by the indemnifying party in respect of the transactions contemplated by this Agreement. Section 444 10.3 Titles of Articles and Sections. Any titles of the several parts, articles and Sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 11410.4 Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand or other communication under this Agreement by any party to any other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally, and in the case of Developer, is addressed to or delivered personally to Developer at 5101 Vernon Avenue South, Edina, Minnesota 55436, Attn: Robert Shadduck, in the case of the Authority, is addressed to or delivered personally to the Economic Development Authority of Brooklyn Center, 6301 Shingle Creek Parkway, Brooklyn Center, Minnesota 55430 -2199, Attention: Executive Director, or at such other address with respect to any such party as that party may, from time to time, designate in writing and forward to the other, as provided in this Section. Section 4-1.310.5 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 44410.6 Law Governing. This Agreement will be governed and construed in accordance with the laws of the State of Minnesota. Section 4177 10.7 Consents and Approvals. In all cases where consents or 1326475vRed 3 to V2; 10/05/01 1 Brad Hoffman BC DEV AGREEMENT REDLINEdoc lON NO. 2001 -20 approvals are required hereunder, such consents or approvals shall not be unreasonably conditioned, delayed or withheld. All consents or approvals shall be in writing in order to be effective. Section 1-1.810.8 Representatives. Except as otherwise provided herein, all approvals and other actions required of or taken by the Authority shall be effective upon action by the Authority Representative. All actions required of or taken by Developer shall be effective upon action by a duly authorized officer of the respective party. Section 14110,2 Superseding Effect. This Agreement reflects the entire agreement of the parties with respect to the development of the Development, and supersedes in all respects all prior agreements of the parties, whether written or otherwise, with respect to the development of the Development. Section 1-140 111,14 Relationship of Parties. Nothing in this Agreement is intended, or shall be construed, to create a partnership or joint venture among or between the parties hereto, and the rights and remedies of the parties hereto shall be strictly as set forth in this Agreement. Section 1411 10.11 Mediation. All claims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agreement or breach thereof, shall be referred to non binding mediation before, and as a condition precedent to, the initiation of any legal action hereof, provided for herein. Each party agrees to participate in up to four hours of mediation. The mediator shall be selected by the parties, or if the parties are unable to agree on a mediator then any party can request the administrator of the Hennepin County District Court Civil ADR Program and/or similar person, to select a person from its list of qualified neutrals. The mediation shall be attended by employees or agents or each party having authority to settle the dispute. All expenses related to the mediation shall be borne by each party, including without limitation, the costs of any experts or legal counsel. All applicable statutes of limitations and all defense based on the passage of time are tolled while the mediation procedures are pending, and for a period of thirty (30) days thereafter. Section 14T1-2 10.12 Venue. All matters, whether sounding in tort or in contract, relating to the validity, construction, performance, or enforcement of this Agreement shall be controlled by and determined in accordance with the laws of the State of Minnesota, and the Developer agrees that all legal actions initiated by the Developer or Authority with respect to or arising from any provision contained in this Agreement shall be initiated, filed and venued exclusively in the State of Minnesota, Hennepin County, District Court and shall not be removed therefrom to any other federal or state court. Section 11.13 10.13 Provisions Surviving Rescission or Expiration. Sections 9.3 and 10.8 shall survive any rescission, termination or expiration of this Agreement with respect to or arising out of any event, occurrence or circumstance existing prior to the date thereof. Section 11:-14 1014 Time of Essence. Time is of the essence for the observance and performance of the parties' respective obligations and duties under this Agreement. 27 326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE.doc NO. 2001- 28 1326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE.doc Page 29 IN WITNESS WHEREOF, the Authority and Developer have caused this Agreement to be duly executed in their names and on their behalf, all on or as of the date first above written. STATE OF MINNESOTA ss COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this day of 2001, by the Executive Director, of the Economic Development Authority of Brooklyn Center, a body corporate and politic organized and existing under the Constitution and laws of the State of Minnesota, on behalf of said Authority. 2001 -20 Notary Public ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER By Executive Director 1326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE.doc STATE OF MINNESOTA COUNTY OF HENNEPIN ss JERRY'S ENTERPRISES, INC. By: Its: The foregoing instrument was acknowledged before me this day of 2001, by the of Jerry's Enterprises, Inc., a Minnesota corporation, on behalf of said corporation. This instrument drafted by: Briggs and Morgan, P.A. (MMD) 2200 First National Bank Building Saint Paul, MN 55101 -1396 Notary Public 1326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE.doc LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY 1326475vRed to V2; 10/05/01 EXHIBIT A P Brad Hoffman BC DEV AGREEMENT REDLINE.doc LDA RESOLUTION NO. 2001-20 (the "Development Property") and EXHIBIT B CERTIFICATE OF COMPLETION WHEREAS, the Economic Development Authority of Brooklyn Center (the "Grantor a public body corporate and politic, by a Deed recorded in the Office of the County Recorder or the Registrar of Titles in and for the County of Hennepin and State of Minnesota, as Document Number has conveyed to Jerry's Enterprises, Inc., a Minnesota corporation (the "Grantee in the County of Hennepin and State of Minnesota, the following legally described property to wit: WHEREAS, said Deed incorporated and contained certain covenants and restrictions in a Development Agreement executed by and between the Grantor and the Grantee dated October 8, 2001 (the "Development Agreement and WHEREAS, the Grantee has to the present date performed said covenants and conditions insofar as it is able in a manner deemed sufficient by the Grantor to permit the execution and recording of this certification; NOW, THEREFORE, this is to certify that construction of the Minimum Improvements has been completed and the above covenants and conditions in said Development Agreement of the Grantee with respect to the construction of the Minimum Improvements have been performed by the Grantee and that the County Recorder or the Registrar of Titles in and for the County of Hennepin and State of Minnesota is hereby authorized to accept for recording and to record the filing of this instrument, to be a conclusive determination of the satisfaction of the obligations of the Grantee with respect to the construction of the Minimum Improvements. Thereafter any remaining obligations remaining under the Development Agreement relating to the except those set forth in the Declaration shall be only personal obligations of the Developer IN WITNESS WHEREOF, the Authority has caused this Certificate of Completion to be executed with by its duly authorized officer as of the day of 200_. ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER 326475vRed 3 to V2; 10/05/01 1 Brad Hoffman BC DEV AGREEMENT REDLINE.doc STATE OF MINNESOTA SS COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this day of 2001, by the Executive Director of the Economic Development Authority of Brooklyn Center, a body corporate and politic organized and existing under the Constitution and laws of the State of Minnesota, on behalf of said Authority. B -33 By: Its: Executive Director Notary Public 1326475vRed 3 to V2; 10/05/01 Corporation Partnership or Limited Liability Company to Corporation, Partnership or Limited Liability Company No delinquent taxes and transfer entered; Certificate of Real Estate Value filed not required Certificate of Real Estate Value No. County Auditor By Deputy STATE DEED TAX DUE HEREON: Date: 2001 (Reserved for recording data) Brad Hoffman BC DEV AGREEMENT REDLINE.doc EXHIBIT C QUIT CLAIM DEED FOR VALUABLE CONSIDERATION, the Economic Development Authority of Brooklyn Center, a public body corporate and politic Minnesota corporation (the "Grantor hereby conveys and quitclaims to Jerry's Enterprises, Inc., a Minnesota corporation (the "Grantee the real property in Hennepin County, Minnesota, described as follows (the "Property See attached Exhibit A together with all hereditaments and appurtenances belonging thereto (the "Property"). Grantor's delivery of this Deed and conveyance of title, and Grantee's acceptance of this Deed and title to the Property, are expressly subject to: (1) the terms and conditions and the rights of the Grantor and the obligations of the Grantee under that certain Development Agreement by and between Grantor and Grantee dated 1 c el) r 2001 (the "Development Agreement (2) reservation of minerals and mineral rights; (3) real estate taxes and special assessments due and payable in 2001 2002 and subsequent years; (4) applicable zoning laws and ordinances and all other local, state, regional and federal laws and regulations; (5) all easements, covenants, conditions and restrictions of record, if any; and (6) all easements and rights -of -way shown in any recorded plat. Promptly after the conditions set forth in Section 4.8 of the Development Agreement have been satisfied, the Grantor will furnish the Grantee with a Certificate of Completion in the form attached to this Deed as Exhibit B. Such certification by the Grantor shall be (and it shall be so provided in the certification itself) a conclusive determination of satisfaction of the requirements of Section 4.8 of the Development Agreement. Grantee covenants and agrees that no discrimination because of race or religion, political or other affiliation will be allowed or permitted to occur in the use, sale or rental of any portion of the 1326475vRed 3 to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINEdoc EDA RESOLUTION NO. 2001 20 Property. It is intended and agreed that the above and foregoing agreement and covenants shall be covenants running with the land, and that they shall, in any event, and without regard to technical classification or designation, legal or otherwise, and except only as otherwise specifically provided in this Deed, be binding, to the fullest extent permitted by law and equity for the benefit and in favor of, and enforceable by, the Grantor, its successors and assigns, and any successor in interest to the Property, or any part thereof against the Grantee, its successors and assigns, and every successor in interest to the Property, or any part thereof or any interest therein, and any party in possession or occupancy of the Property or any part thereof. The Grantor does not know of any wells located on the described real property. STATE OF MINNESOTA ss COUNTY OF HENNEPIN ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER By: Its: The foregoing was acknowledged before me this day of 2001, by the of the Economic Development Authority of Brooklyn Center, a public body corporate and politic, on behalf of said body. NOTARIAL STAMP OR SEAL (OR OTHER TITLE OR RANK) SIGNATURE OF PERSON TAKING ACKNOWLEDGMENT THIS INSTRUMENT WAS DRAFTED BY: Briggs and Morgan, P.A. (MMD) W2200 First National Bank Building 332 Minnesota Street St. Paul, MN 55101 C -3 5 Tax statements for the real property described in this instrument should be sent to (include name and address of Grantee): 1326475vRed to V2; 10/05/01 Brad Hoffman BC DEV AGREEMENT REDLINE.doc EDA RESOLUTION NO 2001 -20 EXHIBIT D PERMITTED ENCUMBRANCES 1. Real estate taxes due and payable in 2002 and subsequent years. 2. All easements, covenants, conditions and restrictions of record, if any, which do not materially adversely affect the Minimum Improvements. 3. All easements and rights -of -way shown in any recorded plat, which do not materially adversely affect the Minimum Improvements. 4. Reservation of minerals and mineral rights. 5. Applicable zoning laws and ordinances and all other local, state, regional and federal laws and regulations. 6. Those obligations, restrictions and conditions as provided in the Development Agreement. 1326475vRed 3 to V2; 10/05/01 Page 36 Hoffman BC DEV AGREEMENT REDLINE.doc EDA RESOLUTION— NO.-2001 -20 1. Minimum Improvements must be constructed of the following materials: materials similar in quality to the materials used in the CUB Foods development constructed by Brookdale Corner LL.C. PID #0311821140035. 2. The Assessor's Market Value of the Minimum Improvements, including the value of the Development Property, must be not less than $4,000,000. 3. The Minimum Improvements may not be used for the following prohibited uses: Used merchandise sales; pawn shop; check cashing; massage; tobacco; auto: sales, service or body shop; lawn and garden store; gasoline station; tattoo parlor; sauna; school; adult entertainment or publications; adult products; entertainment; school (other than post- secondary); dump site; or other offensive uses. 4. If the Minimum Improvements include housing facilities, they must be owner occupied, sold exclusively to persons over 55, and each of the individual housing units must have an assessor's market value of at least $120,000. 5. The Minimum Improvements must be subject to real property taxes. EXHIBIT E DEVELOPMENT STANDARDS E -37 1326475vRed fi4WO0 /05/01