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HomeMy WebLinkAbout2008 02-25 EDAPEDA MEETING City of Brooklyn Center February 25, 2008 1. Call to Order —The EDA requests that attendees turn off cell phones and pagers during the meeting. A copy of the full City Council packet, including EDA (Economic Development Authority), is available to the public. The packet ring binder is located at the front of the Council Chambers by the Secretary. 2. Roll Call 3. Approval of Agenda and Consent Agenda —The following items are considered to be routine by the Economic Development Authority (EDA) and will be enacted by one motion. There will be no separate discussion of these items unless a Commissioner so requests, in which event the item will be removed from the consent agenda and considered at the end of Commission Consideration Items. a. Approval of Minutes 1. January 14, 2008 Regular Session 4. Commission Consideration Items a. Resolution Authorizing Execution of a Development Agreement and Real Estate Option Agreement (Northern 8+ acres of the I -694 Hwy 100 Redevelopment Site) •Requested Commission Action: Motion to adopt resolution. 5. Adjournment AGENDA EDA Agenda Item No. 3a 1. CALL TO ORDER The Brooklyn Center Economic Development Authority (EDA) met in Regular Session called to order by President Tim Willson at 10:06 p.m. 2. ROLL CALL President Tim Willson and Commissioners Kay Lasman, Mary O'Connor, Dan Ryan, and Mark Yelich. Also present were Public Works Director /City Engineer Todd Blomstrom, Community Development Director Gary Eitel, City Clerk Sharon Knutson, and Carol Hamer, TimeSaver Secretarial, Inc. 3. APPROVAL OF AGENDA AND CONSENT AGENDA Commissioner Lasman moved and Commissioner Yelich seconded approval of the Agenda and Consent Agenda, and the following item was approved: 3a. APPROVAL OF MINUTES Motion passed unanimously. 4. COMMISSION CONSIDERATION ITEMS 4a. RESOLUTION NO. 2008 -01 ELECTING OFFICERS FOR THE ECONOMIC DEVELOPMENT AUTHORITY IN AND FOR THE CITY OF BROOKLYN CENTER President Willson recited Resolution No. 2008 -01 Electing Officers for the Economic Development Authority in and for the City of Brooklyn Center: 01/14/08 MINUTES OF THE PROCEEDINGS OF THE ECONOMIC DEVELOPMENT AUTHORITY OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA REGULAR SESSION JANUARY 14, 2008 CITY HALL COUNCIL CHAMBERS 1. December 10, 2007 Regular Session 2. December 10, 2007 Executive Session 3. December 27, 2007 Special Session President /Treasurer Tim Willson Vice President Kay Lasman Assistant Treasurer Daniel Jordet Secretary Gary Eitel -1- DRAFT Commissioner Lasman moved and Commissioner Yelich seconded adoption of RESOLUTION NO. 2008 -01 electing officers for the Economic Development Authority in and for the City of Brooklyn Center. Motion passed unanimously. 5. ADJOURNMENT Commissioner Lasman moved and Commissioner Ryan seconded adjournment of the Economic Development Authority meeting at 10:08 p.m. Motion passed unanimously. 01/14/08 -2- DRAFT EDA Agenda Item No. 4a City of Brooklyn Center A Millennium Community TO: FROM: ECONOMIC DEVELOPMENT AUTHORITY ITEM MEMORANDUM DATE: February 22, 2008 Fiscal Issues: C: Gary Eitel 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 -2199 City Hall TDD Number (763) 569 -3300 FAX (763) 569 -3494 www. cityo fb rooklyncenter. org Economic Development Authority Curt Boganey, Executive Directo SUBJECT: Resolution authoring execution of a Development Agreement and Real Estate Option Agreement for the Northern 8+ acres of the HWY 100 694 Redevelopment Site. Recommendation: I recommend adoption of the subject resolution in accordance the staff memo attached. Background: In addition to the information provided herein, I wish to note the following: The resolution authorizes two separate actions; First it authorizes execution of an assignable option purchase agreement with the General Services Administration (GSA). The GSA in turn is authorized to proceed with the solicitation of proposals to construct a 162,000 square foot facility composed of 142,000 square feet of Class A Office with additional ancillary building space and that will be leased to the FBI for twenty years. Secondly, the resolution authorizes execution of development agreement that will be assigned to the successful developer who will design, build and lease the facility to the FBI. Because the Developer is unknown at this time and the design is not complete, certain elements of the development agreement will be inserted when this information has been finalized. The project must meet certain criteria as specified in the development agreement and is subject to all normal approvals of the Planning Commission and City Council. We believe this project conforms to the direction of the City Council/EDA and we are very pleased to present this opportunity for your consideration. There will be representatives of the GSA present at the meeting to answer other questions you may have. Recreation and Community Center Phone TDD Number (763) 569 -3400 FAX (763) 569 -3434 MEMORANDUM TO: Curt Boganey, City Manager FROM: Gary Eitel, Community Development Director DATE: February 19, 2008 SUBJECT: Resolution Authorizing Execution of a Development Agreement and Real Estate Option Agreement (Northern 8+ Acres of the 694 and Hwy 100 Redevelopment Site) Recommendation: Recommend City Council /EDA adopt the Resolution Authorizing Execution of a Development Agreement and Real Estate Option Agreement (Northern 8+ Acres of the 694 and Hwy 100 Redevelopment Site) Background Information: The City assembled this 13.4 acre site, known as the 694 and Hwy 100 Redevelopment Site, through the voluntary sales of the Cracker Barrel restaurant, Olive Garden restaurant and the Days Inn Motel. The public purpose of these acquisitions with Tax Increment District 3 Funds was to assemble the properties to maximize redevelopment opportunities available to the City. On April 16, 2007 and May 21, 2007, the City Council /EDA held land use workshops with Damon Farber Associates to review alternate redevelopment opportunities of commercial, industrial and corporate office projects. The consultant discussed expectations of the site and explained that a corporate office use could have an average taxable value of $17M and that an office /showroom use could have an average taxable value of $7.4 M. On June 11, 2007, the City Council /EDA met to discuss a preferred redevelopment alternative. The direction of the Council /EDA was: It was the majority consensus of the City Council to pursue a corporate office variety using a Master Developer Agreement as the method. It was the majority consensus that the City Council should be prepared to offer all or a portion of the land as a subsidy for the right development. During this same period, the GSA was involved in a search for a Class A office site that could facilitate the future development of a 140,000 sq. ft. office building, a 20,000 sq. ft. accessory structure /motor pool and a 200 stall structural parking lot. Because this type of development was consistent with the redevelopment objectives of the EDA, the GSA was made aware of this site. On August 20, 2007, the City received notice that the GSA was interested in securing an option on the site and commencing with their Second Phase of the process (the selection of a qualified development team that will design, construct and own the facility under a long term lease with the GSA). 1 In September 2007, the GSA undertook a Phase One Environmental Review of the northern 8+ acres of this redevelopment site. The following items were discovered as part of this review: 1. A 2003 fuel tank leak report associated with the removal of a fuel oil tank previously used at the motel site. 2. The alignment of a municipal water trunk line which crossed the site and bisected the Olive Garden site. October 2007 February 2008, city staff and our environmental and legal consultants have worked to resolve these issues and prepare a development agreement and option agreement which meets the needs of both the City /EDA and GSA. Tax Increment District #3 The three 694 /Hwy 100 properties are within Tax Increment Financing District #3 and had a frozen tax base of $4,333,000 which continued to be part of the overall taxable market values attributed to the City, School District, County and other taxing jurisdictions. The City's acquisition of these three properties caused them to become tax exempt while in the redevelopment stage with the provision that an adjusted tax base is established by the City Assessor when the properties are developed. The net taxable market value of this site as an office land use has been estimated at approximately $5M. Thus, the redevelopment of these three sites creates more taxable market value as vacant sites than the previous developed properties. Redevelopment The development of the northern 8 acres as a 140,000 sq. ft. Class A office building with support facilities will likely achieve a taxable market value of $20M, of which approximately $17M will be captured by Tax Increment District #3. The future development of the balance of the property which contains all of the frontage on 694 is being planned as a complimentary office land use and will likely result in a project that will add an additional $7 -8M in taxable market value to this redevelopment project. This development scenario would create a redevelopment project of $27 -$28M of which $22 -23M or an annual tax capacity of $440,000 $460,000 times the annual tax rate (1.2 will be collected thru 2021 and applied towards the early retirement of existing Tax Increment Bond indebtedness. Development Agreement Attached is a copy of the Development Agreement and Option Agreement prepared by the City's legal consultants, Briggs and Morgan. The agreement provides for the conveyance of a parcel of approximately 8.5 acres to a future developer selected by the GSA. This developer will design, construct, maintain and enter into a long term lease with the GSA for the use of the site for the Federal Bureau of Investigation Minneapolis Field Office (FBI). The responsibility of the GSA is to proceed with the surveying and platting of the 8.5 acre site. The responsibility of the developer will be to obtain development approvals, including satisfaction of the requirements under the Business Subsidy Act and construct a Design Excellence Facility which meets the GSA standards. The responsibility of the City includes the removal of the contaminated soils associated with the underground fuel tank leak, approximately 370 cu. yds. estimated at $30,000 $35,000 and the relocation of the water trunk line, projected at approximately $250,000, which will benefit the future development of the southern five acres. Attached for reference are copies of the Tetra Tech subsurface assessment results and a site map illustrating the current water main alignment. Enclosed is a letter from Forrrest Hudson, U. S. General Service Administration (GSA), which expands upon the scheduling and design criteria of the FBI facility. Budget Issues: The conveyance of the northern 8.5 acres will create a new TIF base and result in approximately $3,150,000 of property tax value or approximately $63,000 of tax capacity being added to all taxing jurisdictions. The development of this Class A office facility will add approximately $17,000,000 in property value or approximately $340,000 in tax capacity to the Tax Increment District. This additional tax capacity will enable the City to fulfill its debt service obligations and allow the early closure of this Tax Increment District. This project is also the catalyst for the redevelopment of the balance of the 694 Hwy 100 redevelopment site and will promote a positive image for future redevelopment within the community. C A February 20, 2008 Via: Email/FedEx Mr. Curt Boganey City Manager City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 Re: EXPRESSION OF INTEREST Redevelopment Site 8 acres SW Corner Freeway Blvd S.R. 100, Brooklyn Center, MN Dear Mr. Bogany GSA Great Lakes Region Please consider this letter the United States General Services Administration's (GSA) written expression of interest in pursuing the acquisition of the above referenced redevelopment site for the purpose of constructing new facilities for the Federal Bureau of Investigation's Minneapolis Field Office (FBI). The proposed facility will contain approximately 140,000 sq, ft. of a multi-story Class A general office building in association with a single story ancillary building containing approximately 20,000 sq. ft. Additionally, a secured parking structure containing approximately 200 spaces will comprise the facilities. All of which will be situated upon approximately 8M acres. A security fence will be installed around the entire perimeter of the site. All buildings will be set back 100 from adjacent property lines. GSA will enter into a No-Cast Assignable Option to Purchase Agreement with the City of Brooklyn Center. The GSA will conduct a two (2) phase procurement for the purpose of selecting a qualified development team that will design, construct and own the facility under a long term lease with the GSA. Phase 1 of the procurement process has been completed. The facility's architectural significance will be notable and contribute contextually to the site and its surroundings. GSA will employ its "Design Excellence" program in the development of this facility. An award will be made to a development team that satisfies all of the minimum requirements set forth in the Solicitation For Offer and provides the best overall value to the Federal Government, U.S. General Services Administration 23 SoLII DearLori■ ST)oP. Chu IL Er2.6j4- '1395 GS February 20, 2008 Mr. Curt Boganey City Manager City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 Dear Mr. Bogany GSA Great akes Region Via: Email FedEx Re: EXPRESSION OF INTEREST Redevelopment Site 8 acres ±1 SW Corner Freeway Blvd S.R. 100, Brooklyn Center, MN Please consider this letter the United States General Services Administration's (GSA) written expression of interest in pursuing the acquisition of the above referenced redevelopment site for the purpose of constructing new facilities for the Federal Bureau of Investigation's Minneapolis Field Office (FBI). The proposed facility will contain approximately 140,000 sq, ft. of a multi-story Class A general office building in association with a single story ancillary building containing approximately 20,000 sq. ft. Additionally, a secured parking structure containing approximately 200 spaces will comprise the facilities. All of which will be situated upon approximately 8,0 acres. A security fence will be installed around the entire perimeter of the site. All buildings will be set back 100' from adjacent property lines. GSA will enter into a No-Cost Assignable Option to Purchase Agreement with the City of Brooklyn Center. The GSA will conduct a two (2) phase procurement for the purpose of selecting a qualified development team that will design, construct and own the facility under a long term lease with the GSA. Phase 1 of the procurement process has been completed. The facility's architectural significance will be notable and contribute contextually to the site and its surroundings. GSA will employ its' "Design Excellence" program in the development of this facility. An award will be made to a development team that satisfies all of the minimum requirements set forth in the Solicitation For Offer and provides the best overall value to the Federal Government. U.S. General Services Administration 230 SoLth Deal 1..Y. eLe_ Chi ci. IL Er.:5U4- The Award is projected to be made in the Fall of 2008, construction could start as early as Spring 2009 and completion could occur in the Fall of 2010. An estimation of project costs would be approximately $40,000,000 and create approximately 281 higher paying positions. Sih erely, FO' EST HUD +N Warranted Contracting Officer Office of Property Development Public Buildings Service Great Lake Region Commissioner introduced the following resolution and moved its adoption: EDA RESOLUTION NO. RESOLUTION AUTHORIZINGEXECUTION OF A DEVELOPMENT AGREEMENT ANDREAL ESTATE OPTION AGREEMENT WHEREAS, the United States of America, acting by and through the U.S. General Services Administration "GSA desires to locate certain Federal facilities for office space to be leased to the Federal Bureau of Investigation containing approximately 162,000 square feet of rentable space with future expansion capabilities in conjunction with an onsite structured parking facility having a minimum of 200 spaces within the City of Brooklyn Center, Minnesota (the "Project and WHEREAS, the Authority and GSA have determined to enter into a Real Estate Option Agreement providing for the Authority's conveyance of certain real property to GSA for the purpose of constructing the Project (the "Option Agreement and WHEREAS, the Option Agreement provides that it may be assigned to a developer selected by the GSA to design and build the Project (the "Developer and that upon exercise of the option under the Option Agreement, the Authority and the Developer will enter into a Development Agreement providing for the Authority's assistance with the Project (the "Development Agreement NOW, THEREFORE, BE IT RESOLVED by the Economic Development Authority in and for the City Brooklyn Center, Minnesota, as follows: 1. The Board of Commissioners hereby approves the Development Agreement and the Option Agreement in substantially the forms submitted, and the Executive Director is hereby authorized and directed to execute the Option Agreement on behalf of the Authority and, upon exercise of the option in accordance with the Option Agreement, the Executive Director is hereby authorized and directed to execute the Development Agreement on behalf of the Authority. 2. The Authority and the GSA intend the Development Agreement to be a binding obligation of the parties thereto immediately upon exercise of the option in accordance with the Option Agreement regardless of any delays in the execution and delivery of the Development Agreement by either party. 3. The approval hereby given to the Development Agreement and Option Agreement includes approval of such additional details therein as may be necessary and appropriate and such modifications thereof, deletions therefrom and additions thereto as maybe necessary and appropriate and approved by the Authority officials authorized by this resolution to execute the Development Agreement and Option Agreement. The execution of the Development Agreement and Option Agreement by the appropriate officer or officers of the Authority shall be conclusive evidence of the approval of the Development Agreement and Option Agreement in accordance with the terms hereof. Date President The motion for the adoption of the foregoing resolution was duly seconded by Commissioner and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. REAL ESTATE OPTION AGREEMENT This Real Estate Option Agreement (the "Agreement is made and entered into the day of 2008, "Effective Date 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 "Optionor whose address is 6301 Shingle Creek Parkway, Brooklyn Center, Minnesota 55430 and the UNITED STATES OF AMERICA, ACTING BY AND THROUGH THE U.S. GENERAL SERVICES ADMINISTRATION "Optionee whose_ address is Public Building Service, Great Lakes Region, 230 S. Dearborn Street, Suite 3600, Chicago, Illinois, 60604. WHEREAS, the Optionee desires to locate certain Federal facilities for office space containing approximately 162,000 square feet of rentable space with future expansion capabilities in conjunction with an onsite structured parking facility having a minimum of 200 spaces within Brooklyn Center, Minnesota; and WHEREAS, the Optionee has determined that the most efficient manner to establish the location of these Federal facilities is to identify a parcel of real property appropriate for the unique requirements of these facilities, and then to proceed to conduct a lease procurement for the construction and leasehold of these Federal facilities on such parcel of real property; and WHEREAS, the Optionor desires the Optionee to locate these Federal facilities upon certain real property owned by the Optionor as legally described on Exhibit A (the "Property and the Optionee has determined the Property to be the most advantageous site for location of these Federal facilities, all factors considered; and WHEREAS, pursuant to the authority granted the Optionor in Minn. Stat. 469.090- 469.1082, the Optionor has agreed to convey the Property to the Optionee for the purpose of constructing the Federal facilities; and WHEREAS, Optionee requires a no -cost assignable option to purchase the Property in order to proceed with its plans to implement the lease procurement process; and WHEREAS, Optionee intends to assign this Agreement to Optionee's developer (the "Developer after the execution of this Agreement. NOW THEREFORE, in consideration of the above recitals, the mutual obligations of the parties hereto, ONE AND NO /100 DOLLAR ($1.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Grant of Ontion. The Optionor hereby grants to the Optionee the exclusive right and irrevocable option to purchase the Property or any portion thereof, together with all improvements, easements, and appurtenances to the Property, upon the terms and conditions set forth in this Agreement (the "Option 2138743v6 2. Term of Option. Optionee may exercise the Option at any time between the Effective Date and the date fifteen (15) months from the Effective Date (the "Expiration Date If Optionee exercises the Option with respect to less than all of the Property, the terms of this Option terminate with respect to the portion of the Property that is not described on Exhibit A of the Development. Agreement Optionee delivers to Optionor pursuant to Section 3(b) below as of the date Optionee exercises the Option. 3. Exercise of Option. To exercise the Option, Optionee must: (a) Deliver written notice to Optionor that Optionee is exercising the Option (a "Notice of Exercise (b) Insert the name of the entity that is exercising the Option on the cover sheet of the Development Agreement that is attached hereto as Exhibit B (the "Development Agreement in the initial paragraph on the first page of the Development Agreement, in the definition of "Developer" on page 3 of the Development Agreement, and in the signature line on page 30 of the Development Agreement; (c) Indicate whether the entity exercising the Option is a corporation, partnership, limited liability company or other entity and its State of organization in the initial paragraph on page 1 of the Development Agreement, in the definition of "Developer" on page 3 of the Development Agreement and in Section 2.2(a) of the Development Agreement; (d) Insert the date of this Agreement in the second "WHEREAS" clause on page 1 of the Development Agreement; (e) Insert the effective date and the commitment number of the Title Commitment, as defined in Section of this Agreement, in Section 3.6(b) of the Development Agreement; (f) Complete Sections 4.9(f) and (g) of the Development Agreement; (g) Complete Section 11.4 of the Development Agreement with the address of the entity exercising the Option; (h) Complete Exhibit A of the Development Agreement with the legal description of the portion of the Property the entity exercising the Option intends to acquire (the "Development Property The legal description of the Development. Property must conform to the legal description of the Development Property as shown on the Survey, as defined in Section 6. The Development Property may not exceed 8.57 acres in size. (i) Complete Exhibit D of the Development Agreement pursuant to Section 7 of this Agreement; and (j) Deliver to Optionor, along with the Notice of Exercise, two copies of the Development Agreement, each bearing the original signature of an authorized representative of Optionee. Once Optionee has exercised the Option, Optionee may not withdraw or rescind Optionee's exercise of the Option. The resolution of Optionor approving this Option and directing the Executive Director of the Optionor to execute this Agreement also approves the 2138743v6 Development Agreement and also directs the Executive Director of Optionor to execute the Development Agreement upon Optionee's exercise of the Option pursuant to this Section 3. Upon Optionee's exercise of the Option pursuant to this Section 3, the Development Agreement becomes the binding agreement between Optionor and Optionee and the terms of this Agreement are merged therein. 4. Purchase Price. If Optionee exercises the Option, the total purchase price for the Development Property shall be $1.00 (One Dollar), hereinafter the "Purchase Price 5. Conveyance. Upon Optionee's exercise of the Option and performance of Optionee's obligations under the Development Agreement, Optionor shall convey the Development Property to Optionee pursuant to the terms of the Development Agreement. 6. Survey. Promptly after execution of this Agreement, Optionee will obtain, at Optionee's expense, a survey of the Development Property in accordance with the 2005 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys including such Table A Items as Optionee may elect (the "Survey Upon completion of the Survey, Optionee will deliver a copy of the Survey to Optionor, and Optionor will promptly apply to the City of Brooklyn Center for approval of a lot split, minor subdivision or administrative subdivision of the Property (the "Subdivision as necessary, to allow a deed of the Development Property from Optionor to Optionee to be recorded in the Hennepin County land records. 7. Title Insurance. Within fifteen (15) business days after Optionor's receipt of the Survey, Optionor shall provide Optionee with a title insurance commitment for the Development Property from Old Republic Title Insurance Company and copies of the documents referenced therein (collectively, the "Title Commitment Within sixty (60) after Optionee's receipt of the Title Commitment, Optionee may give Optionor written notice of any alleged defect(s) in the Optionor's title to the Property and request that Optionor cure the alleged defect's (each such alleged defect is an "Objection If Optionee notifies Optionor of one or more Objections within the sixty (60) day time period set forth above, Optionor may, but has no obligation to, undertake to cure the Objection(s), and Optionor and Optionee shall have thirty (30) days from the date Optionee delivers Optionee's Objection(s) to Optionor to negotiate and agree upon what actions, if any, Optionor will undertake to cure the Objections. If Optionor and Optionee are unable to agree upon the nature and the timing of the actions Optionor will undertake to cure Optionee's Objection(s) within the thirty (30) day period or if Optionor and Optionee agree upon the nature and timing of the actions Optionor will undertake to cure Optionee's Objection(s), but if Optionor is unable, notwithstanding the use of commercially reasonable efforts, to cure the Objection in the manner or within the time frame Optionor and Optionee agreed upon, Optionee may either: (a) Elect not to exercise the Option; or (b) notify Optionor that Optionee waives the Objection(s) and exercise the Option. Prior to exercising the Option, Optionee must complete Exhibit D of the Development Agreement with references to all matters identified as exceptions on Schedule B of the Title Commitment accept for matters that were the subject of an Objection and that Optionor agreed to 2138743v6 3 so cure and cured pursuant to the procedures described in this Section 7. If Optionee exercises the Option, Optionee is agreeing to accept title to the Development Property subject to the covenants, conditions, restrictions, easements and other encumbrances, if any, identified on Exhibit D of the Development Agreement. Optionor represents to Optionee that between the effective date of the Title Commitment and the Effective Date, Optionor has not subjected all or any portion of the Property to any consensual lien or to any covenant, condition, restriction, easement or other voluntary encumbrance, and Optionor agrees that between the Effective Date and the Expiration Date, Optionor will not subject all or any portion of the Property to any consensual lien or to any covenant, condition, restriction, easement or other voluntary encumbrance. 8. Ontionor's Representations. Optionor represents that: (a) It is the record owner of the Property and has the requisite power and authority to enter into and fully carry out this Agreement and the sale of the Property contemplated herein. (b) To the best of Optionor's actual knowledge, the Property is zoned C -2, and the Federal office facilities contemplated herein are a permitted use in that zoning classification; Optionor's possession of the land has been peaceable and undisturbed; Optionor's title to the Property has never been disputed or questioned to its knowledge; and Optionor does not know of any facts by reason of which Optionor's possession or title might be disturbed or questioned or by reason of which any claim to the Property, or any part thereof, might arise or be set up adverse to Optionor. (c) To the best of Optionor's actual knowledge, water, sanitary sewer, natural gas, electricity, telephone and cable television services are available for connection at the boundaries of the Property. (d) To the best of Optionor's actual knowledge, the Property is exempt from real estate taxes due and payable in 2008 and the Property is not subject to any Levied or pending special assessments. If Optionee exercises the Option and, on the Closing Date, as defined in the Development Agreement, the Development Property is subject to levied or pending special assessments, Optionor will pay or provide for the payment of the levied or pending special assessments. Optionee's development of the Development Property will be subject to utility connection fees and charges and other development and permit fees payable pursuant to the terms of the Ordinances of the City of Brooklyn Center. (e) To the best of Optionor's actual knowledge, there are no Hazardous Substances located on the Property; the Property is not subject to any liens or claims by government or regulatory agencies or third parties arising from the release or threatened release of Hazardous Substances in, on or about Property; and Property has not been used in connection with the generation, disposal, storage, treatment or transportation of Hazardous Substances, except as set forth in the reports described on the attached Exhibit C. For purposes of this Agreement, the term "Hazardous Substance" includes but is not limited to substances defined as "hazardous substances," "toxic substances" or "hazardous wastes" in the Comprehensive Environmental Response Compensation Liability Act of 1980, as amended, 42 U.S.C. §9601, et seq., and substances defined as "hazardous wastes," "hazardous substances," "pollutants, or contaminants" 2138743v6 4 as defined in the Minnesota Environmental Response and Liability Act, Minnesota Statutes, 115B.02. The term "hazardous substance" shall also include asbestos, polychlorinated biphenyls, petroleum, including crude oil or any fraction thereof, petroleum products, heating oil, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas useable for fuel (or mixtures of natural gas and synthetic gas). 9. Closine Date. If Optionee exercises the Option, the closing on the Development Property shall be established pursuant to Section 3.9(a) of the Development Agreement. 10. Possession. If Optionee exercise the Option and Optionee closes pursuant to the terms of the Development Agreement, Optionor shall deliver possession of the Development Property pursuant to Section 3.9(a) of the Development Agreement. 11. Ontionee's Right to Enter and Inspect the Property. Optionee, Optionee's authorized or designated representatives or agents, and offerors participating in Optionee's lease procurement process (the "Optionee Parties shall have the right during the period of this Option, subject to the rights, interests, and uses made of the Property by the Optionor, to enter upon the Property for the purpose of inspecting same and making test borings, plans, topographical and boundary surveys, environmental assessments, and any other due diligence matters deemed reasonably prudent in connection with the contemplated use of the Property as a leasehold for Federal facilities. Optionee shall provide Optionor reasonable notice, not less than 24 hours, prior to entering the Property. Optionee agrees to indemnify and defend Optionor from and to hold Optionor harmless against any and all claims, liens, causes of action or expenses, including attorneys fees, relating to or arising from Optionee's or Optionee Parties' presence or activities on the Property prior to the closing. Optionee shall require any of the Optionee Parties to maintain insurance in amounts and coverages reasonably acceptable to Optionor. Optionee shall promptly repair and restore the Property to the same condition as existed immediately prior to such entry if such entry resulted in any damage thereto. 12. Government Approvals. Optionor and Optionee acknowledge that the Property requires governmental approvals for Optionee's intended use which may include, but not be limited to: utility relocation; rezoning; site plan approval, subdivision plat approval; grading and/or special use permit(s); public roadway construction, and variances. Optionor shall assist and cooperate with Optionee in its effort to obtain any and all governmental approvals required to complete the construction and obtain occupancy of the improvements; provided that such assistance and cooperation can be provided by Optionor at no cost to Optionor. 13. Assienment. Optionee has the right to assign all of Optionee's rights and obligations under this Agreement to a third party without the consent of Optionor; provided (a) Optionee provides Optionor with written notice of any assignment; (b) Optionee and Optionee's assignee execute a written instrument pursuant to which Optionee assigns all of Optionee's rights and obligations under this Agreement to the assignee and the assignee agrees to assume and perform all of Optionee's rights and obligations under this Agreement; and (c) Optionee delivers a copy of the written instrument described in Section 13(b) herein described to Optionor within five (5) business days of the date Optionee and the assignee execute the instrument and in no event later than the date the assignee exercises the Option. An assignment shall not release the Optionee from Optionee's obligations under this Agreement. The Option shall be subject to further 2138743v6 assignment only with the prior written consent of the original Optionee. The Optionee shall make any and all evaluations it deems necessary in it sole discretion as to the financial ability or condition of the assignee to proceed with a project for the construction and lease of Federal office and related facilities contemplated for the Property. 14. Failure to Exercise Option. If Optionee does not exercise the Option in accordance with Section 3 before the Expiration Date, the Option terminates without any further action by Optionor or Optionee. 15. Parties. Nothing contained in this Agreement shall constitute the parties hereto as partners with one another or agents for one another. As the context may indicate, any term used herein shall include the singular, plural, feminine, masculine or neuter gender, as the case may be. The words "herein "hereunder" and "hereof' and other equivalent words refer to this Agreement as an entirety and not solely to the particular portion I which such word is used, except if otherwise expressly limited. 16. Counterparts. This Agreement may be executed in any number of counterparts, any one of which shall be considered an original, and all of which, taken together shall be deemed to be one original. 17. Prior Agreements. The parties agree and acknowledge that this Agreement cancels and supersedes all prior agreements, whether written, oral, or both; is entire in itself; and that this Agreement and any Memorandum of this Agreement that the parties execute and record to provide record notice of this Agreement are the only agreements between the parties hereto respecting the Option and the Property; that all agreements and undertakings between the parties are embodied in this Agreement and the Memorandum of this Agreement. No promises, covenants, or representations of any kind, other than those expressly contained herein have been made to induce any party hereto to enter into this Agreement. This Agreement may be amended only by written instrument executed by Optionee and Optionor. 18. Disputes. This Agreement is subject to the Contract Disputes Act of 1978 (41 U.S.C. sections 601 -613) "Act Except as provided in the Act, all disputes arising under or relating to this Agreement shall be resolved under this Act. The Contracting Officer for purposes of this Agreement shall be Mr. Forrest Hudson, General Services Administration, Region 5, Office of Property Development. 19. Notices. All notices or communications required under this Agreement or which either party desires to give to the other shall be sent by certified or registered, return receipt requested, postage prepaid, United States mail, personal delivery, or recognized, private, overnight courier which maintains evidence of delivery and in the case of a notice or communication to the Optionee, is addressed as follows: General Services Administration, Attn: Mr. Forrest Hudson, Office of Property Development, 230 S. Dearborn Street. Suite 3600, Chicago, Illinois 60604: and in the case of a notice or communication to the Optionor, is addressed as follows: Economic Development Authority of Brooklyn Center. Attn: Executive Director, 6301 Shingle Creek Parkway, Brooklyn Center. Minnesota 55430: or is addressed in such other way as the parties may from time to time direct by written notice to the other. Notices shall be deemed to have been received on the second (2 business day after they are deposited in the United States 2138743v6 6 mail as provided above and one (1) business day after deposit with a recognized, private overnight courier as provided above. 20. Time of the Essence. Optionor and Optionee mutually agree that time is of the essence throughout the term of this Agreement. No extension of time for performance of any obligations or acts shall be deemed an extension of time for performance of any other obligations or acts. If any date for performance of any terms, conditions or provisions hereof shall fall on a Saturday, Sunday, or legal holiday, then the time of such performance shall be extended to the next business day thereafter. 21. Authority of Optionor. Concurrently with the execution of this Agreement, Optionor shall furnish to the Optionee a certified copy of the resolution from Optionor's Board of Commissioners authorizing the Optionor to consummate this transaction. 22. Voluntary Removal of Contaminated Soils. Promptly upon the parties execution of his Agreement, Optionor will enroll in the Voluntary Petroleum Investigation and Cleanup Program (the "VPIC Program of the Minnesota Pollution Control Agency "MPCA Optionor will promptly engage Tetra Tech, Inca to prepare a Soil Contingency Plan which describes the soil removal and disposal activities Optionor will undertake to address the contaminated soils described in Tetra Tech's Subsurface Assessment Results Former Days Inn Site 1501 Freeway Boulevard, Brooklyn Center, Minnesota dated January 28, 2008 and submit the Soil Contingency Plan to the MPCA for review and approval. Upon the MPCA's approval of the Soil Contingency Plan, Optionor will promptly implement the Soil. Contingency Plan. Upon completion of the activities described in the approved Soil Contingency Plan Optionor will submit a completion report to the MPCA describing the actions which Optionor has undertaken and completed and includes results of soils samples taken during the soil removal process and acquire from the MPCA and deliver to Optionee a Completion of Voluntary Response Action Letter, a MPCA Closure Confirmation Letter and a Tank Removal Verification Letter, all in substantially the forms of the pro forma letters attached as Exhibit D. Optionor will use all commercially reasonable efforts to complete the excavation and soil removal activities described in the approved Soil Contingency Plan within one hundred and twenty (120) days of the date of this Agreement, but Optionee acknowledges that Optionor will require thirty (30) days to prepare and submit the Soil Contingency Plan and forty five days after MPCA's approval of the Soil Contingency Plan to implement the plan and remove the soils from the Property and that Optionor cannot control the timing of the MPCA's review and approval of the proposed Soil Contingency Plan or the MPCA's review and approval of Optionor's completion report and issuance of the above described letters. Except as expressly set forth in this Section 22, Optionor is not responsible for taking any action to remediate or otherwise address any environmental contamination on the Property, whether currently known or unknown, and except as set forth in Section 8(e) of this Agreement, Optionor makes no representations or warranties regarding the presence or absence of Hazardous Substances in or on the Property. OPTIONOR: OPTIONEE: Economic Development Authority of United States of America, Acting by Brooklyn Center, a public body corporate the General Services Administration 2138743v6 IN WITNESS WHEREOF, this Option is executed the day and year first above written. and politic organized under the laws of the State of Minnesota BY: BY: NAME: NAME: TITLE: Executive Director TITLE: ATTEST: NAME: TITLE: 2138743v6 8 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Tract A, Registered Land Survey No. 1477, Hennepin County, Minnesota (the "Days Inn Site Lot 2, Block 1, Richardson Park 2 d Addition, Hennepin County, Minnesota (the "Cracker Barrel Site 2138743v6 AND A -1 EXHIBIT B DEVELOPMENT AGREEMENT BY AND BETWEEN ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER AND 2138743v5 See attached. B -1 EXHIBIT C ENVIRONMENTAL REPORTS ENVIRONMENTAL REPORTS FORMER DAYS INN SITE 1501 FREEWAY BOULEVARD BROOKLYN CENTER MINNESOTA 1. Landmark Environmental, LLC's Limited Site Investigation (MPCA Investigative Report Form Fact Sheet 3.24) dated 10/13/03. 2. Landmark Environmental, LLC's Excavation Report Worksheet for Petroleum Release Sites (MPCA Investigative Report Form Sheet 3.7) dated 11/7/03. 3. Minnesota Pollution Control Agency's April 28, 2004 letter to Mr. Jay Patel, Best Western, 1501 Freeway Boulevard, Brooklyn Center, MN 55430 RE: Petroleum Tank Release Site File Closure Site: Best Western, 1501 Freeway Boulevard, Brooklyn Center, Minnesota 55430 Site ID LEAK00015458. 4. Tetra Tech's Phase I Environmental Site Assessment Days Inn Site —1501 Freeway Boulevard, Brooklyn Center, Minnesota dated March 28, 2007. 5. Tetra Tech's Subsurface Assessment Results Former Days Inn Site —1501 Freeway Boulevard, Brooklyn Center, Minnesota dated January 28, 2008. 2138743v5 C -1 EXHIBIT D PRO FORMA COMPLETION OF VOLUNTARILY RESPONSE ACTION LETTER, MPCA CLOSURE CONFIRMATION LETTER AND TANK REMOVAL VERIFICATION LETTER 2138743v5 EXAMPLE ONLY The Minnesota Pollution Control Agency .(MPCA) Petroleum Brownfields Program staff has reviewed the following documents regarding the above- referenced petroleum storage tank release site.. "e,.g. Phase Iand/or II, Site assessment, etc." MPCA Ieaksite file L} AKX3CXX and the file's associated documents. The MPCA `PALES /tanks database. Based upon our review of .the information contained in the above documents, MPCA staff have concluded that. [one, two, etc.] petroleum storage tanks from which the release occurred has been removed from the site. The removed underground storage tanks (UST) included one, two, etc.] 100010,000,, etc. gallon [fuel oil, gasoline, diesel, etc.] UST(s)IAST(s) removed in =OM Due to the fact that the tank(s) from which the release occurred has been removed, the Commissioner of the MPCA has determined that XXXXXX'will not be a responsible person as defined in Minn. Stat. 115C.021(2002), for any release from these tanks. The Commissioner is authorized to make this determination under Minn. Stat. 115C.03,, subd. 9 (c) (2002). This determination extends to the heirs and assigns of the person to which it originally applies, if the heirs and assigns are not otherwise responsible for the release.. This letter represents the views of the MPCA, and is based upon information disclosed to the MPCA as of the date. hereof. This letter should not be construed to release persons who are "responsible persons" under Minn, Stat. 115C.021(2002) from liability for petroleum storage tank releases,' which have originated at the site. Issuance of this letter does not imply that 'petroleum storage tanks are not present at other locations on the site; Depending on your circumstances, this letter may or may not be construed as releasing any party from liability under state or federal taw. If you have questions concerning your particular situation, the MPCA recommends that you discuss your concerns with your legal counsel. If future development of the site or the surrounding area is planned, it should be assumed that petroleum contamination is present. A Development Response Action Plan should be submitted and approved by the MPCA Petroleum Brownfields Program prior to site development. If contamination is encountered during future development work, the MPCA staff should be notified immediately. If you would like to obtain information regarding petroleum contamination at the site, please call the Petroleum Brownfields File Request Program at 6511. If you have any questions regarding this letter, please call me at 6511. Sincerely, Project Leader Petroleum Brownfields Program Petroleum and Closed Landfill Section Remediation Division cc: D -1 RE: Petroleum Storage Tank Release Site File Closure Confirmation Site: Site ID#: LEAK000XXXX Dear Mwoutxx: The above-referenced site was the location of a petroleum storage tank release reported on The file pertaining to the petroleum storage tank release at the site was closed on As of the date of this letter, MPCA staff are not aware of any infonnation which would change the site's closure status. As a result, pursuant to Minn, Stat. 115C:03, subd, 9 (c) (2004), the Coimnissioner hereby confirms that a petroleuriuelease has occurred at the site, and the MPCA has issued a file closure letter and closure status has not been revoked. This confirmation extends to the successors and assigns of the entity to which it originally applies, if the successors and assigns are not otherwise responsible for the release. If future development of the site or the surrounding area is planned, it should be assumed that petroleum contamination is present. Property with petroleum contamination to soil or ground water may cause on-site vapor risks to future occupants. The MPCA can assist you with environmental risk and development plan review. MPCA Petroleum Brownfields staff will review and approve plans for property development If petroleum'contarnination is encountered during future development work, the MPCA staff should be notified immediately. This letter represents the view of the MPCA, and is based upon information disclosed to the MPCA as of the date hereof. Depending .on your circumstances, it may or may not be construed as releasing any person from liability under state or federal laws. If you have questions concerning your particular situation, the .MPCA =minuends that you discuss your concerns with your legal counsel. If you would like to obtain information regarding petroleum contamination at this site, please call the Petroleum Remediation Program File Request Program at 651/ If you have any questions regarding this letter, please call me at 6.51/. Sincerely, Project Leader Petroleum Brownfields Program Petroleum and Closed Landfill Section Remediation Division CC: 2138743v5 D-2 RE: Completion of Voluntary Response Actions for Petroleum Contamination Site Petroleum Brownfields Site ID Dear The Minnesota. Pollution Control Agency (MPCA) Petroleum Brownfields Program staff has reviewed the following documents describing your management of petroleum 'impacted soils and/or ground water as part of voluntary cleanup work completed at the above referenced site: Based on the information provided, MPCA staff has concluded that soils and/or ground water were managed as proposed. Thank you for your participation in the Petroleum Brownfields Program, If you have any questions regarding this Ietter, please call for 2138743v5 D -3 2083895v6 DEVELOPMENT AGREEMENT BY AND BETWEEN ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER AND 2008 ARTICLE I DEFINITIONS 2 Section 1.1 Definitions 2 ARTICLE II REPRESENTATIONS AND WARRANTIES 5 Representations and Warranties of the Authority 5 Representations and Warranties by the Developer 5 Section 2.1 Section 2.2 TABLE OF CONTENTS 7 Section 3.1 Purchase and Sale of Development Property 7 Section 3.2 Purchase Price 7 Section 3.3 Developer's Right to Inspect 7 Section 3.4 "As Is" Conveyance 7 Section 3.5 Acknowledgements by the Authority 7 Section 3.6 Subdivision; Title and Survey 8 Section 3.7 Acknowledgements by Developer 8 Section 3.8 Contingencies to Closing on Development Property 8 Section 3.9 Closing on the Development Property 9 Section 3.10 Authority Support for Other Projects 11 Section 3.11 Option Agreement 11 ARTICLE III CONVEYANCE OF DEVELOPMENT PROPERTY 12 4.1 Construction of Minimum Improvements 12 4.2 Preliminary Plans 12 4.3 Commencement and Completion of Construction 12 4.4 Compliance with Environmental Requirements 13 4.5 Additional Responsibilities of the Developer 13 4.6 Certificate of Release of Forfeiture 13 4.7 Completion 14 4.8 Certain Approvals 14 4.9 Business Subsidy Agreement 14 NO PUBLIC IMPROVEMENTS 17 ARTICLE IV CONSTRUCTION OF MINIMUM IMPROVEMENTS Section Section Section Section Section Section Section Section Section ARTICLE V Section ARTICLE VI Section Section Section Section Section ARTICLE VII Section Section 2083895v6 -i- Page 5.1 No Public Improvements 17 CERTAIN FINANCING PROVISIONS 18 6.1 Encumbrance of the Development Property 18 6.2 Copy of Notice of Default to Mortgagee 18 6.3 Mortgagee's Option to Cure Events of Default 18 6.4 Defaults Under Mortgage 18 6.5 Subordination of Agreement 18 INSURANCE AND CONDEMNATION 19 7.1 Insurance 19 7.2 Condemnation 20 ARTICLE VIII DEVELOPER COVENANTS 21 Section 8.1 Maintenance and Operation of the Development 21 ARTICLE IX TRANSFER LIMITATIONS AND INDEMNIFICATION Section 9.1 Representation as to Development; Limit on Transfer of Ownership Interest in Developer 22 Section 9.2 Limitations on Transfer 22 Section 9.3 Indemnification 23 Section 9.4 Limitation 23 ARTICLE X EVENTS OF DEFAULT AND REMEDIES 24 Section 10.1 Developer Events of Default 24 Section 10.2 Authority Events of Default 25 Section 10.3 Authority Remedies on Default 25 Section 10.4 Revesting Title in the Authority 26 Section 10.5 Developer Remedies on Default 26 Section 10.6 No Remedy Exclusive 26 Section 10.7 No Additional Waiver Implied by One Waiver 26 Section 10.8 Reimbursement of Attorneys' Fees 26 ARTICLE XI Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F 2083895v6 TABLE OF CONTENTS (continued) ADDITIONAL PROVISIONS 27 11.1 Conflicts of Interest 27 11.2 Real Estate Agents 27 11.3 Titles of Articles and Sections 27 11.4 Notices and Demands 27 11.5 Counterparts 27 11.6 Law Governing 27 11.7 Consents and Approvals 27 11.8 Representatives 27 11.9 Superseding Effect 28 11.10 Relationship of Parties 28 11.11 Mediation 28 11.12 Venue 28 11.13 Provisions Surviving Rescission or Expiration 28 11.14 Time of Essence 28 11.15 Modification 28 LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY A -1 CERTIFICATE OF RELEASE OF FORFEITURE B -1 LIMITED WARRANTY DEED C -1 PERMITTED ENCUMBRANCES D -1 BUSINESS SUBSIDY REPORT E -1 REDEVELOPMENT PLAN F -1 Page 22 THIS DEVELOPMENT AGREEMENT is made and entered into this day of 2008, 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 (the "Developer 2083895v6 DEVELOPMENT AGREEMENT 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. WHEREAS, in order to achieve the objectives of the Redevelopment Plan, the Authority has acquired 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 granted an option to purchase the Development Property to the United States of America and its assigns acting by and through the General Services Administration (the "GSA pursuant to an Option Agreement dated as of 2008 (the "Option Agreement WHEREAS, the Developer has been selected by the GSA as the successful offeror of the Solicitation for Offer to design and build a facility to be leased to the Federal Bureau of Investigation. The GSA has assigned the Option Agreement to the Developer, and the Developer has agreed to assume and perform all of the GSA's rights and obligations under the Option Agreement. WHEREAS, As required by Section 3 of the Option Agreement, the Developer, in order to exercise the option granted in the Option Agreement, has executed this Development Agreement to establish the Developer's commitment to the Authority to, among other things, design and construct the Minimum Improvements in accordance with the terms hereof. WHEREAS, the Authority believes that the Development, as more fully set forth in this Agreement, is in the best interests of the residents of the City and will foster the redevelopment of blighted property and an increase in the tax base, provide jobs for residents of the City, 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, and the City and Authority are interested in the development of the Development Property as a high quality class A office building to maximize the development of the Development Property. 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: 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 to 469.047 and 469.090 to 469.1082, both inclusive, as amended. "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 Documents" means the documents to be executed and/or delivered by the Authority at the Closing pursuant to Section 3.8(b) of this Agreement. "Authority Representative" means the Executive Director of the Authority or his designee. "Board" means the Board of Commissioners of the Authority. "Certificate of Release of Forfeiture" means the certificate in substantially the form attached hereto as Exhibit B signed by the Authority Representative certifying that the conditions in Section 4.6 hereof have been satisfied. "City" means the City of Brooklyn Center, Minnesota. "Closing" means the closing on the conveyance of the Development Property. "Closing Date" means the dates on which the Development Property is conveyed by the Authority to the Developer, which date shall be as set forth in Section 3.9(a) of this Agreement. "Completion Date" means date the City issues a of certificate of occupancy for the Minimum Improvements. "Construction Plans" means the plans, specifications, drawings and related documents for the construction of the Minimum Improvements which shall be as detailed as the plans, specifications, drawings and related documents which are submitted to the building official of the City and not classified within the federal government's sole discretion. "Construction Lender" means any lender for the construction of the Minimum Improvements. 2083895v6 2 "Construction Mortgage Loan" means any construction mortgage loan to be obtained by the Developer to provide construction and permanent financing for the construction of the Minimum Improvements. "County" means the County of Hennepin, Minnesota. "Deed" means the limited warranty deed executed by the Authority conveying the Development Property to the Developer, in the form attached hereto as Exhibit C. assigns. "Developer's Documents" means the documents to be executed and/or delivered by the Developer at the Closing pursuant to Section 3.9(c) of this Agreement. "Developer Event of Default" means the occurrence of an Event of Default set forth in Section 10.1 hereof. "Development" means the Development Property and the Minimum Improvements to be constructed thereon as provided in this Agreement. hereto. "Developer" means a its successors or permitted "Development Property" means the real property legally described on Exhibit A attached "Lease" means the 20 year lease of the Development Property and the Minimum Improvements from the Developer as lessor to the GSA. "Minimum Improvements" means an approximately 140,000 square foot class A office building, a 20,000 square foot motor pool building, and a 200 stall structured parking ramp. "Mortgage" means any mortgage loan to the Developer that is secured, in whole or in part by a mortgage on the Development. "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 7.1 of this Agreement. "Occupancy Agreement" means the Occupancy Agreement between the GSA and the Sublessee. hereto. "Permitted Encumbrances" means the encumbrances described on Exhibit D attached "Preliminary Plans" means the site plan and the preliminary (30% complete) design, specification and architectural plans for the Minimum Improvements (including, without limitation, building elevations and description of exterior materials) to be submitted by the Developer to the Authority. 2083895v6 3 "Redevelopment Plan" means the redevelopment plan for the Redevelopment Project Area approved by the City and the Authority and attached as Exhibit F. "State" means the State of Minnesota. "Sublessee" means the Federal Bureau of Investigation (FBI) Minneapolis Field Office, an agency of the United States Government. "Title Company" means Old Republic National Title Insurance Company. "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, acts of terrorism or insurrection, (e) acts of any State or local governmental unit which directly result in delays, (f) strikes or walkouts, (g) delays in delivery of materials for the Minimum Improvements, or (h) soil conditions of the Development Property. 2083895v6 4 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 the Option Agreement and carry out its obligations hereunder. (b) The Authority has taken all action necessary to approve this Agreement and the Option Agreement and to authorize the execution and delivery of this Agreement and the Option 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 the Option 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 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 or the City 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 or the Development Property, 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. Section 2.2 Representations and Warranties by the Developer. The Developer represents and warrants to the Authority and the City that: (a) The Developer is a organized and in good standing under the laws of 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 execution, delivery and performance of this Agreement by proper action of its governing body. 2083895v6 5 (b) The execution and delivery of this Agreement, the Lease and the assignment of the Option 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 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, the Lease and the assignment of the Option Agreement will not create a conflict of interest prohibited by Minnesota Statutes, Section 471.87. (d) 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 this Agreement, or questioning the authority of the Developer to execute and deliver this Agreement or the validity of this Agreement. (e) The Developer has or will have prior to the Closing Date adequate financial capability, consisting of binding commitments for equity and financing, to construct and to complete each of the activities or tasks required by this Agreement including but not limited to, the design and completion of construction of the Minimum Improvements by the Completion Date. (f) The total construction cost for the Minimum Improvements, including furniture, fixtures and equipment, will be at least $40,000,000. 2083895v6 6 ARTICLE III CONVEYANCE OF DEVELOPMENT PROPERTY Section 3.1 Purchase and Sale of Development Property. Upon Developer's performance of the GSA's obligations under this Article III, the Authority must execute the Deed and deliver it to the Developer. Section 3.2 Purchase Price. The Purchase Price for the Development Property is $1.00 (one dollar) (the "Purchase Price Section 3.3 Developer's Right to Inspect. Developer is hereby granted the right to enter upon the Development Property for a purpose of inspecting the same and making tests borings, plans, topographical and boundary surveys, environmental assessments, and any other due diligence matters deemed reasonably prudent in connection with the contemplated use of the Development Property. Developer shall provide the Authority reasonably notice, not less than twenty -four hours, prior to entering the Development Property. Developer shall pay for the cost of all investigations of the Development Property which are ordered by Developer for purposes of conducting its own investigations of the Development Property. Developer hereby agrees to indemnify and defend the Authority from and to hold the Authority harmless against any and all claims, liens, causes of actions or expenses, including attorneys' fees, relating to or arising from Developer's presence or activities on the Development Property or the performing of any of the analyses, tests or inspections referred to in this Section. Developer shall maintain insurance in amounts and with coverages reasonably acceptable to the Authority. Developer shall promptly repair and restore the Development Property to the same condition as existed immediately prior to such entry if such entry resulted in any damage thereto. Section 3.4 "As Is" Conveyance. In recognition of the inspection rights accorded the Developer and the contingencies granted to Developer in Section 3.8 (iii) and 3.8 (iv) but subject to the Authorities obligations under Section 3.12, the Developer agrees to accept title to the Development Property at closing on an "AS IS" "WHERE IS" basis, with all faults and defects, without any representations or warranties, express or implied, and the Developer waives and releases any claims against the Authority, the City and their respective members, boards, agents and employees, for indemnification, contribution, reimbursement or other payments arising under federal and state law, common law or any other theory relating to environmental or any other condition of the Development Property. Section 3.5 Acknowledgements by the Authority. The Authority acknowledges and agrees that the Developer will lease the Development Property to the United States of America, by and through the GSA, pursuant to the Lease for the occupancy by the Sublessee pursuant to the Occupancy Agreement. The Authority further acknowledges that, to the best of the Authority's actual knowledge, the Development Property is exempt from real estate taxes due and payable in 2008. Future assessments and classifications for tax purposes will be determined by the County. 2083895v6 7 Section 3.6 Subdivision: Title and Survey. (a) Pursuant to Section 6 of the Option Agreement, the GSA is required to obtain a survey of the Development Property and deliver a copy of the survey to the Authority and the Authority is required to promptly apply to the City for approval of a lot split, minor subdivision or administrative subdivision of the Development Property (the "Subdivision as necessary, to allow the Deed to be recorded in the County land records. (b) The Authority previously provided the GSA with a Title Insurance Commitment from Title, with an effective date of 2008 (Commitment No. and copies of the documents referenced therein. Pursuant to Section 7 of the Option Agreement, the Developer has set forth on Exhibit D attached hereto the encumbrances subject to which the Developer agrees to accept title to the Development Property. Section 3.7 Acknowledgements by Developer. The Developer acknowledges and agrees that: (a) no promises or commitments of any type or kind have been made by the Authority with respect to providing financial assistance to the Minimum Improvements, whether by loan, grant, bond issuance of otherwise; (b) the Developer will need to obtain all permits and approvals for the design, construction and operation of the Minimum Improvements required by applicable law, including all building and environmental permits and approvals, and that no promises have been made by the Authority with respect to waiving or modifying any applicable permitting requirements; (c) the City must approve a subdivision of the Property, as defined in the Option Agreement, to allow the Deed to be recorded in the County land records and no promises have been made by the Authority with respect to the City's waiver or modification of any applicable subdivision requirements; and (d) no promises or commitments have been made by the Authority with respect to the assessed valuation of the Minimum Improvements or any of the facilities ancillary thereto. The Developer acknowledges that the Development Property will not be exempt from ad valorem real estate property taxes. Section 3.8 Contingencies to Closing on Development Property. (a) Developer's Contingencies. Developer's obligation to close on the Development Property is expressly conditioned upon each of the following contingencies being satisfied or waived on or before the Closing Date: (i) Developer shall have closed on its financing for the design and construction of the Minimum Improvements. (ii) Title to the Development Property shall have been found acceptable, or been made acceptable. (iii) Developer shall have determined that it is satisfied with the results of all matters disclosed by hazardous waste and environmental review of the Development Property. (iv) Developer shall have determined that it is satisfied with the results of all matters disclosed by Developer's inspection of the Development Property. 2083895v6 8 (v) The Authority shall have performed all of the obligations required to be performed as of the Closing Date by Authority under this Agreement. (vi) The Authority shall have delivered to the Developer all of the Authority's Documents described in Section 3.9(b). (vii) The City shall have granted all necessary subdivision approvals. (b) Authority's Contingencies. The Authority's obligation to close on the sale of the Development Property is expressly conditioned upon each of the following contingencies being satisfied or waived in writing on or before the Closing Date: (i) Developer shall have closed on its financing for the design and construction of the Minimum Improvements in an amount which the Developer certifies to the Authority is sufficient, together with other funds available to the Developer, to complete the construction of the Minimum Improvements in accordance with the Construction Plans. (ii) Developer shall have performed all of the obligations required to be performed as of the Closing Date by Developer under this Agreement. (iii) The Developer shall have delivered to the Authority all of the Developer's Documents described in Section 3.9(c). (iv) The Developer shall have obtained the approval of the Authority to the Preliminary Plans for the Minimum Improvements as required by Section 4.2 of this Agreement. (v) Payment and performance bonds from the contractor or subcontractors in the amount of the applicable portion of the contract price for construction of any public improvements by the contractor and subcontractors covered by their respective contracts prior to commencement of the construction of any public improvements covered by their respective contracts. (vi) The City shall have granted all necessary subdivision approvals. Section 3.9 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 date 120 days after the date Developer exercises the option set forth in the Option Agreement, which is the date of this Agreement, (or the next business day if the 120 day after the date of this Agreement is a federal holiday), or such other date as the parties mutually agree. The Closing shall take place at the Saint 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 to the Developer on the Closing Date. 2083895v6 9 (b) Authority's Documents. At the Closing, the Authority shall execute, where appropriate, and deliver all of the following: (i) The Deed properly executed on behalf of the Authority conveying the Development Property to the Developer subject to the Permitted Encumbrances. (ii) Any abstracts of title to the Development Property that are in the Authority's possession or control. The Authority has no obligation to have any abstracts of title recertified to a current date. 2083895v6 (iii) An affidavit of the Authority indicating on the Closing Date that to its actual current knowledge, without duty of inquiry or investigation, there are no outstanding, unsatisfied judgments, tax liens or bankruptcies against or involving the Development Property; that there has been no labor or material furnished to the Development Property for which payment has not been made or for which mechanic's liens could be filed; and that there are no other unrecorded interests in the Development Property. (iv) A resolution of the Authority authorizing the Authority's conveyance of the Development Property to Developer and identifying the individuals authorized to execute the Deed and any other documents required hereunder. (v) A completed Minnesota Department of Health Well Disclosure Certificate or include on the deed described in Paragraph 9 the statement "The Seller certifies that the Seller does not know of any wells on the described real property" or the statement "I am familiar with the property described in this instrument and I certify that the status and number of wells on the described real property have not changed since the last previously filed well disclosure certificate:" followed by Optionor's signature. (vi) Any information necessary for Developer's preparation of a Minnesota Certificate of Real Estate Value. (vii) A non foreign affidavit in recordable form containing such information as its required under IRC Section 1445(b)(2) and any regulations relating thereto. (c) Develoner's Documents. At the Closing, the Developer shall execute, where appropriate, and deliver all of the following: (i) The Purchase Price. (ii) An executed copy of the Lease, GSA Standard Form 2 (SF2), and an executed copy of the Occupancy Agreement. (iii) Proof of insurance required pursuant to this Agreement. 10 41) 2083895v6 (iv) To the extent required and obtainable as of the Closing Date, environmental clearances, subdivision approvals, permits, and any other required governmental approvals for the Minimum Improvements. (v) Funds sufficient for payment by the Developer at Closing of the 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. (vi) A certificate of good standing for Developer from the Secretary of State of the State. (vii) A completed Minnesota Certificate of Real Estate Value. Section 3.10 Authority Support for Other Proiects. The Developer acknowledges and agrees that the Authority shall have the right to support other projects and developments; provided, however, the Authority agrees not to encourage or promote redevelopment of unused land adjacent to the Development Property for any use that poses a security threat to the Minimum Improvements as determined by the Developer and the GSA in their sole respective discretions, including but not limited to motels, hotels and warehouse distribution facilities. To the extent the Authority has control, it will encourage Class A general office uses of land adjacent to the Development Property. Section 3.11 Option Agreement. Upon Developer's exercise of the option set forth in the Option Agreement the terms of the Option Agreement are merged into this Agreement, and the Option Agreement is of no further force or affect. Section 3.12 Voluntary Removal of Contaminated Soils. To the extent the Authority has not already done so pursuant to Section 22 of the Option Agreement the Authority must: (a) enroll in the Voluntary Petroleum Investigation and Cleanup Program (the "VPIC Program of the Minnesota Pollution Control Agency "MPCA promptly engage Tetra Tech, Inc. to prepare a Soil Contingency Plan which describes the soil removal and disposal activities the Authority would undertake to address the contaminated soils described in Tetra Tech's Subsurface Assessment Results Former Days Inn Site 1501 Freeway Boulevard, Brooklyn Center, Minnesota dated January 28, 2008; and submit the Soil Contingency Plan to the MPCA for review and approval; (b) promptly implement the Soil Contingency Plan upon the MPCA's approval of the Soil Contingency Plan; (c) submit a completion report to the MPCA that describes the actions which the Authority has undertaken and completed and that includes results of soils samples taken during the soil removal process upon completion of the activities described in the approved Soil Contingency Plan and acquire from the MPCA and deliver to Developer a Completion of Voluntary Response Action Letter, a MPCA Closure Confirmation Letter and a Tank Removal Verification Letter, all in substantially the forms of the pro forma letters attached as Exhibit D to the Option Agreement. 11 The Authority must use all commercially reasonable efforts to complete the excavation and soil removal activities described in the approved Soil Contingency Plan within one hundred and twenty (120) days of the date of the Option Agreement, but Developer acknowledges that the Authority will require thirty (30) days to prepare and submit the Soil Contingency Plan and forty five days after MPCA's approval of the Soil Contingency Plan to implement the plan and remove the soils from the Property and that the Authority cannot control the timing of the MPCA's review and approval of the proposed Soil Contingency Plan or the MPCA's review and approval of the Authority's completion report and issuance of the above described letters. Except as expressly set forth in this Section 3.12, the Authority is not responsible for taking any action to remediate or otherwise address any environmental contamination on the Development Property, whether currently known or unknown, and except as set forth in Section 8(e) of the Option Agreement, Optionor makes no representations or warranties regarding the presence or absence of Hazardous Substances in or on the Development Property. 2083895v6 12 Section 4.1 Construction of Minimum Improvements. Subject to the terms and conditions of this Agreement, the Developer agrees to construct the Minimum Improvements on the Development Property in conformance with the Construction Plans for the Minimum Improvements approved by the City in connection with obtaining a building permit. The Developer will employ the design excellence standards of the GSA Office of the Chief Architect for a Class A office building and will employ materials comparable in quality and aesthetics to those used in existing facilities of the Federal Bureau of Investigation in other locations throughout the United States. (a) The Developer shall deliver to the Authority no later than thirty (30) days prior to Closing the Preliminary Plans for the Minimum Improvements. The Preliminary Plans must be consistent with the Redevelopment Plan, this Agreement and all applicable State and local laws and regulations, insofar as said consistency may be determined at said preliminary stage. The Authority shall review the Preliminary Plans and will deliver to the Developer before the Closing Date, a written statement approving the Preliminary Plans or a written statement rejecting the Preliminary Plans and specifying the deficiencies in the Preliminary Plans. The Authority shall approve the Preliminary Plans if: (i) the Preliminary Plans conform to the terms and conditions of this Agreement; (ii) the Preliminary Plans are consistent with the goals and objectives of the Redevelopment Plan; and (iii) the Preliminary Plans do not, to the knowledge of the Authority, violate any applicable Federal, State or local laws, ordinances, rules or regulations. (b) The approval of the Preliminary Plans, or any proposed amendment to the Preliminary Plans, by the Authority does not constitute a representation or warranty by the Authority that the Preliminary Plans, 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 certificate of occupancy, or that the Minimum Improvements will meet the requirements of the Developer or any other users of the Minimum Improvements. Approval of the Preliminary Plans, or any proposed amendment to the Preliminary Plans, by the Authority will not constitute a waiver of any Developer Event of Default. Section 4.3 Commencement and Completion of Construction. Subject to the terms and conditions of this Agreement and to Unavoidable Delays, the Developer will commence construction of the Minimum Improvements no later than June 1, 2009 and will complete construction of the Minimum Improvements no later than November 30, 2010. The Minimum Improvements will be constructed by the Developer on the Development Property in conformity with the Preliminary Plans approved by the Authority and the Construction Plans approved by the City in connection with the issuance of a building permit. At all times during construction, upon the request of the Authority, the Developer will provide the Authority reasonable access to 2083895v6 ARTICLE IV CONSTRUCTION OF MINIMUM IMPROVEMENTS Section 4.2 Preliminary Plans 13 the Development Property. "Reasonable access" means at least one site inspection per month during regular business hours. During construction of the Minimum Improvements, the Developer will deliver progress report's to the Authority from time to time as mutually agreed upon by the Authority and the Developer. Section 4.4 Comnliance 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 Closing, the Developer has received no 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. 2083895v6 Section 4.5 Additional Resnonsibilities 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 Preliminary Plans approved by the Authority and the Construction Plans approved by the City in connection with the issuance of a building permit. (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 current technical specifications, standards and practices of the owner thereof. (e) The Developer will comply with all applicable local, state and federal environmental laws and regulations, as they relate to the Minimum Improvements. Section 4.6 Certificate of Release of Forfeiture. The Developer shall notify the Authority when the construction of the Minimum Improvements has been completed. The Authority shall cause the City to promptly inspect the Development Property in order to determine whether construction of the Minimum Improvements has been completed. If the City determines that the construction of the Minimum Improvements has not been completed, the Authority shall deliver a written statement to the Developer indicating as such and Developer shall promptly remedy such deficiency. Promptly upon the issuance by the City of a certificate of occupancy for the Minimum Improvements, the Authority will furnish to the Developer a Certificate of Release of Forfeiture in the form attached hereto as Exhibit B certifying 14 completion of the construction of the Minimum Improvements. The Developer shall cause the Certificate of Release of Forfeiture to be recorded in the proper office for recordation of deeds and other instruments pertaining to the Development Property. Section 4.7 Completion. The Developer shall notify the Authority when the construction of the Minimum Improvements have been substantially completed; and, upon receipt of the Certificate of Occupancy, will provide the Authority with a copy thereof. Section 4.8 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, any 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. to create jobs. 2083895v6 Section 4.9 Business Subsidy Agreement. (a) In order to satisfy the provisions of Minnesota Statutes, Section 116J.994 (the "Business Subsidy Act the Developer acknowledges and agrees that the amount of the "Business Subsidy" granted to the Developer under this Agreement is the fair market value of the Development Property and that the fair market value of the Development Property is $8.50 per square foot. (b) The public purpose of the Business Subsidy is to increase the tax base and (c) For its "Job Goals" under this Section 4.9 the Developer covenants that it will provide or cause to be provided by the Sublessee 280 full -time equivalent permanent employee positions within two years of the Benefit Date, with these jobs having wage levels of at least $7.00 per hour, exclusive of benefits. (d) For purposes of Section 116J.994, Subdivision 3, of the Business Subsidy Act, the goals of the Business Subsidy are the construction of the Minimum Improvements and operation thereof by the Sublessee for at least five years after the "Benefit Date" of the Business Subsidy, as defined in the Business Subsidy Act, which is hereby determined to be the date of the issuance of a certificate of occupancy for the Minimum Improvements. (e) For purposes of the Business Subsidy Act, the Business Subsidy shall be considered to be a forgivable loan to the Developer from the Authority. It is agreed, as required by Section 116J.994, Subdivision 6, if the Developer is in default under this Section 4.9, subject to any remedial provisions of the Business Subsidy Act as may be applicable, the Developer shall be obligated to repay the Business Subsidy plus interest from the Closing Date on all such amounts at the implicit price deflator, as defined under Minnesota Statutes, Section 275.70, Subdivision 2. If the Developer meets some but not all of its Job Goals hereinafter defined, the Developer may request in writing, and the Authority may agree in the absolute discretion of the Board of Commissioners, that the Business Subsidy be repaid by the Developer pro rata, e.g., if 15 the Developer created only 140 of the 280 jobs at the Minimum Improvements, the Developer would repay 50% of the Business Subsidy paid to the Developer, plus accrued interest thereon. The Business Subsidy is needed in order to induce the Developer to construct and occupy the Minimum Improvements. The Developer covenants that it will cause the GSA and/or the Sublessee to continue to operate and occupy the Minimum Improvements for at least five years after the Benefit Date. (f) is the Developer's parent corporation] /[The Developer represents that it has no parent corporation]. (g) The Developer represents that it has not received any State of Minnesota or "local government agency" grants (other than the Business Subsidy hereunder) related to the Minimum Improvements except as described below (if none, leave blank): Grantor Value Grantor Value (h) The Developer represents that it is not in default on the date hereof on any subsidy agreement entered into by the Developer under the Business Subsidy Act. (i) The Developer shall complete and file with the Authority from time to time the report in the form of the attached Exhibit E. The Business Subsidy Act provides that if the Developer does not make such reports, when due, the Authority must mail the Developer a warning within one week of the required filing date, and if, after 14 days after the postmark date of that warning, the Developer continues to fail to report, then the Developer is required to and shall pay the Authority a penalty of $100 for each subsequent day until the report is filed, up to a maximum of $1,000. The Developer shall file these reports with the Authority, in care of the Executive Director, (1) on March 1 of each year, beginning with the March 1 immediately following the Benefit Date, and (2) within 30 days after the "Compliance Date," hereby defined to be the date which is two years after the Benefit Date. Each March 1 report shall report on the prior calendar year, and each other report shall report on the period since the last reporting period. (j) This Section 4.9 is intended to be the "subsidy agreement" required by Section 116J.994, Subdivision 3, of the Business Subsidy Act. In the event that any provision of this Section 4.9 is inconsistent or in conflict with any provision of the Business Subsidy Act, and in the event that any provision of the Business Subsidy Act provides additional requirements, the provisions of the Business Subsidy Act shall apply and govern. In addition to all reporting obligations of the Developer under this Section 4.9 and Exhibit E. the Developer agrees to provide the Authority with any additional information which may be required in order for the Authority to comply with its reporting requirements, as they may exist or be amended from time to time, under the Business Subsidy Act. (k) Nothing in this Section 4.9 is intended to limit or otherwise amend the other terms of this Agreement; provided, however, that to the extent that provisions in this 2083895v6 16 Section 4.9 are more extensive or restrictive than any related term elsewhere in this Agreement, the provisions hereof shall govern. The above commitment of the Developer to cause the GSA and/or the Sublessee to continue to operate and occupy the Minimum Improvements for at least five years from the Benefit Date is a requirement of the Business Subsidy Act (subject to procedures therein allowing relaxation or waiver of said requirement) and shall apply and govern. (1) If the Developer shall default under its agreement in this Section 4.9, the Developer shall then be required to repay the Business Subsidy to the Authority, plus interest at no less than the implicit price deflator, as defined under Minnesota Statutes, Section 275.70, Subdivision 2 from the date of said default and continue paying interest thereon at such rate until the Business Subsidy is paid in full. 2083895v6 17 Section 5.1 No Public Improvements. Neither the Authority nor the City shall have any obligation to construct, install, improve or modify any public improvements (including without limitation streets, sidewalks, curbs or utility services) in connection with the Development; the Developer acknowledges that all of such improvements or modifications, if any, shall be a part of the Minimum Improvements and constructed at the sole expense of the Developer. If the Developer determines that the existing water line on the Development Property interferes with the construction of the Minimum Improvements, the Authority and the Developer will cooperate to relocate the water line, to vacate any unnecessary easements and to create any new easements necessary for the relocated water line, all at the sole expense of the Authority. 2083895v6 ARTICLE V NO PUBLIC IMPROVEMENTS 18 ARTICLE VI CERTAIN FINANCING PROVISIONS Section 6.1 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 constructing 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 actual costs of development). Section 6.2 Copy of Notice of Default to Mortgagee. If the Authority delivers any notice or demand to the Developer with respect to a Developer 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 6.3 Mortgagee's Option to Cure Events of Default. Upon the occurrence of a Developer Event of Default, the mortgagee under any Mortgage will have the right within the time period required by this Agreement to cure or remedy such Developer Event of Default. Section 6.4 Defaults Under Mortgage. In the event the Developer is in default under any Mortgage prior to the Completion Date, the Developer, within ten (10) days after it becomes aware of any default and prior to exercising any remedy available to it due to such default, shall 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 elects (at its sole option) to cure any default under the Mortgage, the mortgagee will pursue none of its remedies under the Mortgage based on such default. Section 6.5 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 this Agreement, 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. 2083895v6 19 ARTICLE VII INSURANCE AND CONDEMNATION Section 7.1 Insurance. (a) The Developer will obtain and continuously maintain insurance on the Development Property (including the Minimum Improvements) 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 Minimum Improvements, and with coverage available in nonreporting form on the so- called "all risk" form of policy. (ii) Comprehensive general liability insurance in amounts and coverages normally held by businesses engaged in activities similar to those of the Developer. (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 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 2083895v6 20 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 prior to the Completion Date, 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; and shall keep the Authority advised of the progress thereof. 2083895v6 21 ARTICLE VIII DEVELOPER COVENANTS Section 8.1 Maintenance and Operation of the Development. In addition to other maintenance and operation obligations of the Developer under this Agreement, the Developer will, at all times during the term of this Agreement, maintain and operate the Development Property and the Minimum Improvements in a safe and secure way and in compliance with this Agreement and all federal, State and local laws, regulations, rulings and ordinances applicable thereto. The Developer shall pay all of the expenses of the operation and maintenance of the Development Property and the Minimum Improvements of this Agreement, including all premiums for insurance insuring against loss or damage thereto and adequate insurance against liability for injury to persons or property arising from the construction or operation of the Minimum Improvements as required pursuant to this Agreement. The Developer shall also pay all costs and expenses of capital improvements and replacements of the Minimum Improvements. During construction or operation of the Minimum Improvements, Developer shall not cause any person working in or attending the Development for any purpose, to be exposed to any hazardous or unsafe condition; and shall cause its contractors, employees or agents employed by Developer to work on the Development Property to take such precautions as may be available to protect the persons in and around the Development Property from hazards arising from the work, and shall further require each such contractor to obtain and maintain liability insurance protecting against liability to persons for injury arising from the work. In the event that the Developer is required to utilize a common retention pond for the purposes of storm water management then the Developer shall also be responsible for the maintenance and any capital replacement and/or improvement of the storm water retention pond located adjacent to the Development Property on a pro rata basis determined by calculating the ratio of impervious site area to pervious site area. 2083895v6 22 2083895v6 ARTICLE IX TRANSFER LIMITATIONS AND INDEMNIFICATION Section 9.1 Representation as to Development: Limit on Transfer of Ownership Interest in Developer. 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 developing commercial properties, and leasing the Development Property to the Sublessee, 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 and Sublessee 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 and the Sublessee, and the execution of the Lease. Section 9.2 Limitations on Transfer. The Developer may, but until the Completion Date only with prior written notice to the Authority which shall not be required after the Completion Date, mortgage the Development Property and the Minimum Improvements to a lender providing construction or permanent financing for the Minimum Improvements. Prior to the Completion Date, except pursuant to the Lease and the Occupancy Agreement or as otherwise provided in this Section, the Developer will not sell, assign, convey, lease, mortgage, transfer or otherwise encumber 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 may be given or withheld in the Authority's sole discretion. In the event that the Authority elects to consent to any proposed transfer, the Authority shall be entitled to require, as conditions to any approval of any such transfer of 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 its sole discretion, in order to achieve and safeguard the purposes of the Act, the Development Plan and the Developer Documents; and 23 (e) In the absence of specific written agreement by the Authority to the contrary, no such transfer or approval by the Authority 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. 2083895v6 Section 9.3 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 and all losses or damages 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, operation and maintenance of the Development. Section 9.4 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. 24 ARTICLE X EVENTS OF DEFAULT AND REMEDIES Section 10.1 Developer Events of Default. Any of the following shall be a Developer Event of Default: (a) Subject to Unavoidable Delays, the Developer shall fail to begin construction of the Minimum Improvements and to proceed with due diligence to satisfactorily complete substantial construction of the Minimum Improvements by the dates set forth in Section 4.3 hereof, and such failure to begin, or proceed with due diligence to complete, the construction of such of the Minimum Improvements shall not be cured within 30 days after written notice to do so. 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, other than as a result of Unavoidable Delays, shall such additional cure period extend beyond 180 days; (b) there is, in violation of Article IX of this Agreement, any conveyance or other transfer of the Development Property or any part thereof, and such violation is not cured within 30 days after written demand by the Authority to the Developer; (c) subject to Unavoidable Delays, 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 well informed at all times of its progress in curing the default; provided in no event, other than as a result of Unavoidable Delays, shall such additional cure period extend beyond 180 days; or (d) failure of the Developer to pay an ad valorem real property tax or special assessments as the same become due and payable. (e) a default shall occur under the Construction Loan Mortgage and is not cured within the time permitted therein; or (f) the closing on the Development Property does not occur by the Closing Date set forth in the Option Agreement; or (g) the Developer shall (i) file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief 2083895v6 25 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 10.2 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 Authority Event of Default. Section 10.3 Authority Remedies on Default. (a) If any Developer Event of Default occurs prior to the Closing Date, the Authority may take any one or more of the following actions: 2083895v6 (ii) Cancel and terminate this Agreement and the Option Agreement, pursuant to Minnesota Statutes, Section 559.21 upon thirty (30) days written notice of default. (iii) 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. damages. (i) Suspend its performance under this Agreement. (iv) Commence an action against Developer to recover the Authority's (b) If any Developer Event of Default occurs after the Closing Date and prior to the Completion Date, the Authority or may take any one or more of the following actions: (i) Suspend its performance under this Agreement. (ii) Withhold the Certificate of Release of Forfeiture and/or cancel and terminate this Agreement. (iii) 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. 26 2083895v6 (iv) Commence an action against Developer to recover the Authority's damages. (c) If any Developer Event of Default occurs after to the Completion Date, the Authority or may take whatever action at law or in equity may appear necessary or desirable to the Authority to collect any payments due under this Agreement, to enforce performance and observance of any obligation, agreement, or covenant of the Developer under this Agreement or to recover the Authority's damages. Section 10.4 Revestine Title in the Authority. If, subsequent to conveyance of the Development Property to the Developer, and before issuance of any Certificate of Release of Forfeiture pursuant to Section 4.6, an Developer Event of Default occurs and is not cured within any cure period allowed in Section 10.1, then the Authority shall have the right to re -enter and take possession of the Development Property and to terminate and revest in the Authority such portion of the estate conveyed by the Deed to the Developer, it being the intent of this Agreement that the conveyance or transfer of the Development Property to the Developer shall be conditioned on the Developer's performance hereunder, and that upon the occurrence of an uncured Event of Default by the Developer, all Development Property for which all rights and interests of the Developer, and any assigns or successors in interest to and in the Development Property shall revert to the Authority. Section 10.5 Developer Remedies on Default. Whenever any Authority 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 specific performance and observance of any obligation, agreement, or covenant of the Authority under this Agreement. Section 10.6 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 Developer Event of 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. Section 10.7 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 10.8 Reimbursement of Attorneys' Fees. If the Developer shall default under any of the provisions of this Agreement, and the Authority or City shall employ attorneys or incur other reasonable expenses for the collection of payments due hereunder, for the collection of its damages, or for the enforcement of performance or observance of any obligation or agreement on the part of the Developer contained in this Agreement, the Developer will on demand therefor reimburse the Authority and the City for the reasonable fees of such attorneys and such other reasonable expenses so incurred. 27 2083895v6 ARTICLE XI ADDITIONAL PROVISIONS Section 11.1 Conflicts of Interest. No member of the Board, City Council or other official of the Authority or the City 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 or the City shall be personally liable to the Authority or the City in the event of any default or breach by Developer or successor or on any obligations under the terms of this Agreement. Section 11.2 Real Estate Agents. The Developer hereby agrees to indemnify the Authority and City from any real estate or other sales commission or fee payable to any broker hired or engaged by the indemnifying party in respect of the transactions contemplated by this Agreement. Section 11.3 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 11.4 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 in the case of the Authority or the City, 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 11.5 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 11.6 Law Governing. This Agreement will be governed and construed in accordance with the laws of the State of Minnesota. Section 11.7 Consents and Approvals. In all cases where consents or 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 11.8 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 28 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 11.9 Superseding Effect. This Agreement and the Option Agreement reflect the entire agreement of the parties with respect to the Development, and supersedes in all respects all prior agreements of the parties, whether written or otherwise, with respect to the Development. Section 11.10 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 11.11 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 11.12 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 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 Time of Essence. Time is of the essence for the observance and performance of the parties' respective obligations and duties under this Agreement. Section 11.15 Modification. The Authority and Developer may amend this agreement upon mutual written consent. 2083895v6 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. 2083895v6 30 ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER By Executive Director 2083895v6 31 'DEVELOPER] By: Printed Name: Its: 2083895v6 EXHIBIT A LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY A -1 r and 2083895v6 EXHIBIT B CERTIFICATE OF RELEASE OF FORFEITURE 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 (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, the breach of which by the Grantee, its successors and assigns, would result in a forfeiture and right of re -entry by the Grantor, its successors and assigns, said covenants and restrictions being set forth in said Deed and in a Development Agreement executed by and between the Grantor, the City of Brooklyn Center and the Grantee dated 200_ (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 all the conditions required to be satisfied by the Grantee under Section 4.6 of the Development Agreement have been satisfied by the Grantee therein and that the provisions for forfeiture of title and right to reentry for breach of condition subsequent by the Grantor, contained therein, are hereby released absolutely and forever insofar as they apply to the land described herein, and 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 satisfactory termination of the covenants and conditions of the contract referred to herein which would result in a forfeiture by the Grantee, its successors and assigns, and right of re -entry in the B -1 Grantor, its successors and assigns, as set forth in said Deed, and that said Deed shall otherwise remain in full force and effect. IN WITNESS WHEREOF, the Authority has caused this Certificate of Release of Forfeiture to be executed with by its duly authorized officer as of the day of 200 STATE OF MINNESOTA SS COUNTY OF HENNEPIN 2083895v6 B -2 ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER By: Its: Executive Director The foregoing instrument was acknowledged before me this day of 200_, 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. Notary Public By STATE DEED TAX DUE HEREON: Date: 200 2083895v6 EXHIBIT C LIMITED WARRANTY DEED 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 Deputy C -1 (Reserved for recording data) FOR VALUABLE CONSIDERATION, the Economic Development Authority of Brooklyn Center, a public body corporate and politic (the "Grantor hereby conveys and quitclaims to a (the "Grantee the real property in Hennepin County, Minnesota, described as follows (the "Property together with all hereditaments and appurtenances belonging thereto (the "Property This deed conveys after acquired title. Grantor warrants that Grantor has not done or suffered anything to encumber the property except as set forth below. 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 200_ (the "Development Agreement (2) reservation of minerals and mineral rights; (3) real estate taxes and special assessments due and payable in 2008 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; (6) all easements and rights -of -way shown in any recorded plat; (7) the right of re -entry reserved to Grantor in this deed; and (8) [List each of the Permitted Encumbrances from Exhibit D]. Promptly after the conditions set forth in Section 4.6 of the Development Agreement have been satisfied, the Grantor will furnish the Grantee with a Certificate of Release of Forfeiture 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 4.6 of the Development Agreement of the Developer to construct the Minimum Improvements, it being the intention of the parties that upon the granting and filing of the Certificate of Release of Forfeiture that the right of reentry contained in this Deed, be forever released and terminated as to the Property. In the event that, prior to the execution and delivery of the Certificate of Release of Forfeiture, a "Developer Event of Default," as defined in Section 10.1 of the Development Agreement occurs and Grantee fails to cure such default within the period and in the manner stated in Section 10.1, then the Grantor shall have the right to re -enter and take possession of the property and upon re- entry by Grantor to terminate and revest in the Grantor the estate conveyed by this Deed to the Grantee, its assigns or successors in interest, in accordance with the terms of the 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 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. 2083895v6 ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER By: Its: C -2 STATE OF MINNESOTA ss COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this day of 200, by the of the Economic Development Authority of Brooklyn Center, a public body corporate and politic, on behalf of said body. THIS INSTRUMENT WAS DRAFTED BY: Briggs and Morgan, Professional Association (TLB) W2200 First National Bank Building 332 Minnesota Street St. Paul, MN 55101 2083895v6 C -3 Notary Public EXHIBIT D PERMITTED ENCUMBRANCES 1. Real estate taxes and special assessments due and payable in 2008 and subsequent years. 2. Reservation of minerals and mineral rights. 3. Applicable zoning laws and ordinances and all other local, state, regional and federal laws and regulations. 4. The right of re -entry described in Section 10.4 of the Development Agreement and reserved in the Deed. 5. Those obligations, restrictions and conditions as provided in the Development Agreement. 6. [Insert a reference to each exception in Schedule B of the Title Commitment to be completed as provided in Option Agreement] 2083895v6 D -1 Report of EXHIBIT E BUSINESS SUBSIDY REPORT as Recipient of Business Subsidy This report is required by Section 4.9 of that certain Development Agreement, dated as of 2008 (the "Agreement among the Economic Development Authority of Brooklyn Center, Minnesota (the "Authority and (the "Developer and as required by Minnesota Statutes, Section 116J.994, Subdivision 7, as amended. Capitalized terms which are used but not otherwise defined in this report have the meanings given to those under the Agreement. The Authority has under the Agreement granted certain business subsidies to the Developer. Under the Agreement, the Developer is required to file reports with the Executive Director and City Clerk (1) on March 1 of each year, beginning with the March 1 immediately following the date of the issuance of a Certificate of Occupancy for the Minimum Improvements, being referred to herein as the Benefit Date, and (2) within 30 days after the Compliance Date, namely the date which is two years after the Benefit Date. Each March 1 report is required to report on the prior calendar year, and each other report shall report on the period since the last reporting period. The Developer's Job Goals under Section 4.9 of the Agreement are to create at the Minimum Improvements permanent full -time equivalent jobs within two years from the Benefit Date. These jobs are required to have a wage of at least per hour, exclusive of benefits. The Developer hereby certifies to the Authority and the City the following: (1) As provided in the Agreement, the total fair market value of the Business Subsidy is estimated to be the type of Business Subsidy is and the sale of land valued at for $1.00. The public purposes of the subsidy are to further development of the City's commercial and tax base and to create jobs. 2083895v6 (2) The hourly wage of each permanent full -time equivalent job which has been created by the Developer at the Minimum Improvements since the Benefit Date, with separate bands of wages, are as follows: Number of Jobs E -1 Wage Levels Per Hour (3) The cost of health insurance provided by the Developer for the above referenced jobs, separated by bands of wages, is as follows: Number of Jobs (4) If the Developer has not already met the Job Goals, it reasonably expects that it will meet those goals on or before 200 and is taking the following steps to meet the Job Goals: (5) The Developer has no parent corporation. *(6) Other than the subsidy provided by the Authority under the Agreement, there are no other State of Minnesota or "local government agency" grants of subsidy to the Developer for the Minimum Improvements, except for: Grantor Value Grantor Value Verify 2083895v6 (8) The Developer hereby agrees to provide upon request such other information as the Commissioner of the Department of Trade and Economic Development of the State of Minnesota may request the Authority or the Developer to provide or as may be required by the Business Subsidy Act. E -2 Wage Levels Per Hour 2083895v6 (9) The Developer represents that it has continuously owned the Minimum Improvements since its completion, that the Developer has continuously used and owned the Minimum Improvements, and the Developer expects said occupancy to continue for the foreseeable future. (10) The Developer is not in default on the date hereof of its obligations under any subsidy agreement under the Business Subsidy Act. [DEVELOPER] By: Printed Name: Its: This report is to be filed with: City of Brooklyn Center Economic Development Authority of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 -2199 Attn: Executive Director and City Clerk E -3 2083895v6 EXHIBIT F REDEVELOPMENT PLAN F -1