HRA Res 2018-15 Private Redevelopment
HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF FRIDLEY
COUNTY OF ANOKA
STATE OF MINNESOTA
RESOLUTION NO. 2018-15
A RESOLUTION AUTHORIZING EXECUTION AND DELIVERY OF A
CONTRACT FOR PRIVATE REDEVELOPMENT BY AND BETWEEN THE
HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF
FRIDLEY MINNESOTA AND U.S. HOME CORPORATION
BE IT RESOLVED by the Board of Commissioners (the “Board”) of the Housing and
Redevelopment Authority in and for the City of Fridley Minnesota (the “Authority”) as follows:
Section 1. Recitals.
1.01. It has been proposed that the Authority enter into a Contract for Private
Redevelopment (the “Contract”) with U.S. Home Corporation, a Delaware corporation (the
“Redeveloper”).
Section 2. Findings.
2.01. The Authority hereby finds that it has approved and adopted a development
program known as the Redevelopment Plan for its Redevelopment Project No. 1 (the
“Redevelopment Program”) pursuant to Minnesota Statutes, Section 469.001 et seq., as amended
and supplemented from time to time.
2.02 The Authority hereby finds that the Contract promotes the objectives set forth in
its Redevelopment Program.
Section 3. Authorization for Execution and Delivery.
3.01. The Chairperson and the Executive Director of the Authority (the “Officers”) are
hereby authorized to execute and deliver the Contract when the following conditions are met:
Substantial conformity of the Contract to the form of Contract presented to the
Authority as of this date, with such additions and modifications as the Officers may
deem desirable or necessary as evidenced by their execution of the Contract.
PASSED AND ADOPTED BY THE HOUSING AND REDEVELOPMENT AUTHORITY IN
TH
AND FOR THE CITY OF FRIDLEY THIS 6 DAY OF DECEMBER, 2018.
____________________________________________
STEPHEN H. EGGERT – ACTING CHAIRPERSON
ATTEST:
____________________________________________
WALTER T. WYSOPAL – EXECUTIVE DIRECTOR
EXECUTION DATE: _________________
CONTRACT FOR PRIVATE REDEVELOPMENT
by and between the
HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF FRIDLEY, MINNESOTA
and
U.S. HOME CORPORATION
This document was drafted by:
MONROE MOXNESS BERG PA
7760 France Avenue South, Suite 700
Minneapolis, MN 55435-5844
(952) 885-5999
{00147671 8}
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.1 Definitions ..................................................................................................... 2
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.1 Representations, Warranties and Covenants by the Authority ......................... 4
Section 2.2 Representations, Warranties and Covenants by the Redeveloper ..................... 5
ARTICLE III
CONVEYANCE OF THE REDEVELOPMENT PROPERTY;
UNDERTAKINGS OF AUTHORITY AND REDEVELOPER
Section 3.1 Conveyance of the Redevelopment Property .................................................. 7
Section 3.2 Intentionally Omitted ..................................................................................... 9
Section 3.3 Conditions Precedent to Conveyance ............................................................ 10
Section 3.4 Documents at Closing .................................................................................. 11
ARTICLE IV
CONSTRUCTION OF
PUBLIC IMPROVEMENTS AND MINIMUM IMPROVEMENTS
Section 4.1 Public Improvements .................................................................................... 12
Section 4.2 Construction of Minimum Improvements ..................................................... 12
Section 4.3 Preliminary Plans and Construction Plans..................................................... 13
Section 4.4 Certificate of Completion ............................................................................. 14
ARTICLE V
INSURANCE
Section 5.1 Redeveloper Insurance ................................................................................. 14
Section 5.2 Subcontractor Insurance ............................................................................... 15
i
{00147671 8}
ARTICLE VI
PROHIBITIONS AGAINST ASSIGNMENT
AND TRANSFER; INDEMNIFICATION
Section 6.1. Representation as to Redevelopment ............................................................ 15
Section 6.2. Prohibition Against Transfer of Redevelopment Property
and Assignment of Agreement .................................................................... 16
Section 6.3. Letter of Credit as Security for Performance ................................................. 16
Section 6.4 Release and Indemnification Covenants ....................................................... 17
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 Events of Default Defined ............................................................................ 18
Section 7.2 Remedies on Default .................................................................................... 19
Section 7.3 No Remedy Exclusive .................................................................................. 20
Section 7.4 No Implied Waiver ....................................................................................... 20
Section 7.5 Agreement to Pay Attorney’s Fees and Expenses ......................................... 20
Section 7.6 Revesting Title in Authority Upon Happening of
Event Subsequent to Conveyance to Redeveloper ...................................... 20
Section 7.7 Resale of Reacquired Redevelopment Property; Disposition of Proceeds ...... 21
Section 7.8 Intentionally Omitted ................................................................................... 21
ARTICLE VIII
ADDITIONAL PROVISIONS
Section 8.1 Conflict of Interest ....................................................................................... 23
Section 8.2 Restrictions on Use ...................................................................................... 23
Section 8.3 Provisions Not Merged With Deed ............................................................... 23
Section 8.4 Notices and Demands ................................................................................... 23
Section 8.5 Counterparts ................................................................................................. 23
Section 8.6 Law Governing ............................................................................................ 23
Section 8.7 Termination .................................................................................................. 24
Section 8.8 Provisions Surviving Termination ................................................................ 24
SIGNATURE PAGES............................................................................................................... 25
SCHEDULE A
Description of Redevelopment Property .................................................... 27
SCHEDULE A-1
Depiction of Redevelopment Property (Phase 1 and Phase 2)…………….
SCHEDULE B
Form of Redevelopment Property Deed ..................................................... 28
SCHEDULE C
Form of Certificate of Completion and Release of Forfeiture ..................... 30
SCHEDULE D
Public Improvements ................................................................................. 32
ii
{00147671 8}
SCHEDULE E
Existing Environmental Reports ................................................................ 33
SCHEDULE F
Declaration of Restrictive Covenants and
Prohibition Against Tax Exemption ........................................................ 34
SCHEDULE G
Minimum Improvements ….……………………………….…………….. __
iii
{00147671 8}
CONTRACT FOR PRIVATE REDEVELOPMENT
THIS AGREEMENT is made as of the ___ day of _____, 2018 by and between the
Housing and Redevelopment Authority in and for the City of Fridley, Minnesota (the
“Authority”), a political subdivision of the State of Minnesota, and U.S. Home Corporation, a
Delaware corporation (the “Redeveloper”),
WITNESSETH:
WHEREAS, the Board of Commissioners (the “Board”) of the Authority has determined
that there is a need for development and redevelopment within the corporate limits of the City of
Fridley, Minnesota (the “City”) to provide employment opportunities, to provide adequate
housing in the City, including low and moderate income housing and housing for the elderly, to
improve the tax base and to improve the general economy of the City and the State of Minnesota;
WHEREAS, in furtherance of these objectives the Authority has established, pursuant to
Minnesota Statutes, Sections 469.001 to 469.047 (the “Act”), the Redevelopment Plan (the
“Redevelopment Plan”) for its Redevelopment Project No. 1 (the “Project Area”) in the City to
encourage and provide maximum opportunity for private development and redevelopment of
certain property in the City which is not now in its highest and best use;
WHEREAS, in furtherance of these objectives and in connection with the Project Area
the Authority has also established Tax Increment Financing District No. 23 (the “Tax Increment
District”) pursuant to Minnesota Statutes, Section 469.174 et seq., as amended (the “Tax
Increment Act”);
WHEREAS, the Project contemplated by this Agreement promotes the following
objectives of the Redevelopment Plan:
1. Promote and secure the prompt redevelopment of certain property in the Project
Area, which property is not now in its highest and best use, in a manner consistent with the
City’s Comprehensive Plan and with a minimum adverse impact on the environment, and
thereby promote and secure the redevelopment of other land in the City;
2. Provide for the financing and construction for public improvements in and
adjacent to the Project Area necessary for the orderly and beneficial redevelopment of the Project
Area and adjacent areas of the City;
3. Create a desirable and unique character within the Project Area through quality
land use alternatives and design quality in new or remodeled buildings;
4. Stimulate private activity and investment to stabilize and balance the City’s
housing supply; and
5. Encourage and provide maximum opportunity for private redevelopment of
existing areas and structures which are compatible with the Project Area; and
WHEREAS, in order to achieve the objectives of the Authority and the City in creating
the Project Area and adopting the Redevelopment Plan, the Authority is prepared to provide
assistance in accordance with this Agreement; and
WHEREAS, the Authority believes that the development and redevelopment of the
Project Area pursuant to this Agreement, and fulfillment generally of the terms of this
Agreement, are in the vital and best interests of the Authority and the health, safety, morals and
welfare of its residents, and in accordance with the public purposes and provisions of applicable
federal, state and local laws under which the development and redevelopment are being
undertaken and assisted;
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 other as follows:
ARTICLE I
Definitions
Section 1.1.
Definitions. In this Agreement, unless a different meaning clearly appears
from the context:
“Act” means Minnesota Statutes, Sections 469.001 to 469.047.
“Agreement” means this Agreement, as the same may be from time to time modified,
amended or supplemented.
“Approved Dwellings” means the approximately Seventy-two (72) dwelling units to be
constructed by Redeveloper within the Redevelopment Property, consisting of, for Phase 1,
twenty nine (29) Carriage Urban Row Townhomes and twenty one (21) Colonial Patriot Row
Townhomes; and for Phase 2, nine (9) Carriage Urban Row Townhomes and thirteen (13)
Colonial Patriot Row Townhomes, all in an HOA maintained community as described further in
this Agreement. The final number of Approved Dwelling units will be as set forth in the
approved preliminary plat for the Redevelopment Property.
“Authority” means the Housing and Redevelopment Authority in and for the City of
Fridley, Minnesota, its successors or its assigns.
“Board” means the Board of Commissioners of the Authority.
“Certificate of Completion” means a certification in the form of the certificate contained
in Schedule C attached hereto and provided to the Redeveloper pursuant to Section 4.4.
2
{00147671 8}
“City” means the City of Fridley, Minnesota, its successors or its assigns.
“Closing” or “Closing Date” means each date on which a Phase of the Redevelopment
Property is conveyed by the Authority to the Redeveloper pursuant to Article III.
“Construction Plans” means the plans, specifications, drawings and related documents on
the construction work to be performed by the Redeveloper on the Redevelopment Property
which plans (a) shall be the preliminary plat application package as required and approved by the
City, including landscaping plans, grading plans, utility and street plans; (b) together with any
required building plans the City will require to receive preliminary plat approval; (c) such other
plans or supplements to the foregoing plans as the Authority may reasonably request; and (d)
shall be consistent with the Preliminary Plans approved by the Authority.
“Council” means the Council of the City.
“County” means the County of Anoka, Minnesota, its successors or assigns.
“Declaration of Restrictive Covenants and Prohibition Against Tax Exemption” means
those restrictive covenants substantially in the form of Schedule F.
“Event of Default” means an event of default as defined in Section 7.1.
“Existing Environmental Reports” means those environmental reports related to the
Redevelopment Property, which reports are listed in Schedule E attached hereto.
“Minimum Improvements” means the Model Homes, together with the internal drive and
private streets within the Redevelopment Property to be constructed by Redeveloper in
accordance with the approved Construction Plans.
“Minnesota Environmental Rights Act” means Minnesota Statutes, Section 116B.01 et
seq., as amended.
“Model Homes” means the two (2) model homes (one Carriage Urban Row and one
Colonial Patriot constructed within Phase 1 in accordance with the approved Construction Plans.
“Phase” means the portion of the Redevelopment Property purchased by Redeveloper at
each Closing, consisting of “Phase 1” and “Phase 2” as depicted on Schedule A-1 attached
hereto.
“Project” means the Redevelopment Property, the Public Improvements and the
Minimum Improvements.
“Project Area” means Redevelopment Project No. 1 established by the Authority.
3
{00147671 8}
“Public Improvements” means the public improvements to be performed or constructed
by the Redeveloper on or adjacent to the Redevelopment Property as described in Schedule D
and in accordance with the final Construction Plans approved by the City.
“Purchase Price” means $10,000 per housing unit to be contained within the Phase to be
purchased, as set forth on Schedule G.
“Preliminary Plans” means the typical floor plans and sketches of the proposed exterior
and interior of the Approved Dwellings attached hereto as Schedule G.
“Redeveloper” means U.S. Home Corporation, a Delaware corporation, and its permitted
successors and assigns.
“Redevelopment Plan” means the Redevelopment Plan adopted by the Authority for its
Redevelopment Project No. 1, as amended.
“Redevelopment Property” means the real property described in Schedule A attached
hereto, consisting of approximately eight (8) acres of land, which will be replatted to include
approximately seventy-two (72) townhome units and a park outlot (which park outlot is to be
retained by the Authority).
“Redevelopment Property Deed” means a quit claim deed substantially in the form
appearing in Schedule B attached hereto, with the form of Certificate of Completion and Release
of Forfeiture appearing in Schedule C attached hereto as an exhibit to such Redevelopment
Property Deed.
“State” means the State of Minnesota.
“Tax Increment Act” means Minnesota Statutes, Section 469.174 et seq., as amended.
“Tax Increment District” means Tax Increment Financing District No. 23 created by the
Council in connection with the Redevelopment Plan.
“Tax Increment Plan” means the tax increment financing plan adopted by the Authority
in connection with the creation of the Tax Increment District.
“Termination Date” means the date on which the City issues the Certificate of
Completion for Phase 2 or this Agreement is terminated pursuant to Section 7.2 or Section 7.3.
“Unavoidable Delays” means delays which are the direct result of strikes or other labor
troubles, material shortages, delays which are the direct result of unforeseeable and unavoidable
casualties to the Redevelopment Property, the Project, or the equipment used to construct the
Redevelopment Project, delays which are the direct result of governmental actions, delays which
are the direct result of judicial action commenced by third parties, delays which are the direct
result of citizen opposition or action affecting this Agreement, environmental delays which are
the direct result of the implementation of an environmental agency-approved work plan for
4
{00147671 8}
remediation, delays which are the direct result of severe weather which prevents or delays
construction of Minimum Improvements or causes material shortages, acts of God, fire or other
casualty to the Project, site conditions materially different from those revealed in any report or
test provided to or obtained by the Redeveloper.
ARTICLE II
Representations and Covenants
Section 2.1.
Representations and Covenants by the Authority. The Authority makes the
following representations as the basis for the undertaking on its part herein contained, and
covenants with Redeveloper as follows:
(a) The Authority is a public body duly organized and existing under the laws of the
State. Under the provisions of the Act, the Authority has the power to enter into this Agreement
and carry out its obligations hereunder. This Agreement has been or will be duly authorized by
all necessary action on the part of the Authority and has been duly executed and delivered by the
Authority. The Authority’s execution, delivery and performance of this Agreement will not
conflict with or result in a violation of any judgment, order, or decree of any court or government
agency. This Agreement is a valid and binding obligation of the Authority and is enforceable
against the Authority in accordance with its terms. There is no action, litigation, condemnation
or proceeding of any kind pending or, to the best of the Authority’s knowledge, threatened which
would have a material and adverse effect on the ability of the Authority to perform its obligations
under this Agreement or against the Redevelopment Property, or any portion thereof.
(b) The Authority has approved the Redevelopment Plan in accordance with the
terms of the Act.
(c) The Authority has approved the Tax Increment District pursuant to the Tax
Increment Act.
(d) The Authority, subject to Unavoidable Delays, and subject to the conditions
precedent set forth in Article III, below, shall at each Closing convey title to the applicable Phase
of the Redevelopment Property pursuant to Article III to the Redeveloper for the Redeveloper’s
use in accordance with this Agreement.
(e) Intentionally Omitted.
(f) The Authority will cooperate with the Redeveloper with respect to any litigation
commenced by third parties in connection with this Agreement.
(g) The Authority makes no representation, guarantee, or warranty, either express or
implied, and hereby assumes no responsibility or liability as to the Redevelopment Property or
its condition (regarding soils, pollutants, hazardous wastes or otherwise), except as described in
Section 2.1(h).
5
{00147671 8}
(h) The Authority has no knowledge as to the presence of hazardous substances (as
the same are described in the regulations promulgated under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, an/or in the environmental laws of the State of Minnesota, and
specifically including petroleum and related hydrocarbons and their byproducts, asbestos, and
polychlorinated biphenyls) in, on or under the Redevelopment Property, except as may be
expressly set forth in the reports described in Schedule E, copies of which shall have been
delivered by the Authority or its agents and consultants to the Redeveloper pursuant to Section
2.1 (i).
(i) Within five (5) days after the execution of this Agreement, the Authority shall
deliver, or shall cause its agents or consultants to deliver, to Redeveloper all information
available to the Authority regarding the ownership and potential development of the
Redevelopment Property, including, but not limited to, correspondence from the City or County,
flood zones, deed restrictions, utility commitments, engineering plans, studies, soils reports,
engineering reports, construction plans, subdivision plans and/or environmental reports, and a
copy of the Authority’s most recent survey of the Redevelopment Property.
(j) There are no parties other than the Authority in possession of any portion of the
Redevelopment Property, nor are there any leases (oral or written) applicable to or affecting the
Redevelopment Property.
(k) No third party has an option to purchase, right of first refusal, right of first offer or
other similar right with respect to all or a portion of the Redevelopment Property and the
Authority has not entered into any other contracts for the sale of all or any portion of the
Redevelopment Property with any third party.
(l) The Authority is not aware of any methamphetamine production occurring on the
Redevelopment Property. This representation is intended to satisfy the requirements of Minn.
Stat. § 152.0275, Subd. 2(m).
(m) To the best of the Authority’s knowledge, information and belief:
i. There are ______"Wells," as defined in Minn. Stat. § 103I.005, Subd. 21, on
the Redevelopment Property as shown on attached Exhibit _____. This
representation is intended to satisfy the requirements of Minn. Stat. § 115.55, Subd.
6.
ii. There are no individual sewage treatment systems (“systems”), as defined
in Minn. Stat. § 115.55, Subd. 1, on the Redevelopment Property. This
representation is intended to satisfy the requirements of Minn. Stat. § 115.55,
Subd. 6
(n) Intentionally Omitted.
(o) Intentionally Omitted.
6
{00147671 8}
Section 2.2.
Representations, Warranties and Covenants by the Redeveloper. The
Redeveloper represents, warrants and covenants, as applicable, that:
(a) The Redeveloper is a corporation organized and existing under the laws of the
State of Delaware, is authorized to transact business in the State, and has duly authorized the
execution of this Agreement and the performance of its obligations under this Agreement. None
of the execution and delivery of this Agreement, the consummation of the transactions
contemplated by this Agreement, or the fulfillment of or compliance with the terms and
conditions of this Agreement is prevented, limited by or conflicts with the terms of any
indebtedness, agreement or instrument of whatever nature to which the Redeveloper is now a
party or by which it is bound.
(b) Subject to the conditions precedent contained in Article III below, the
Redeveloper will purchase the Redevelopment Property from the Authority pursuant to Article
III and, in the event the Redevelopment Property is conveyed to the Redeveloper, the
Redeveloper will construct and maintain the Public Improvements and the Minimum
Improvements in accordance with the terms of this Agreement and all applicable local, State and
Federal laws and regulations (including, but not limited to, environmental, zoning, building code
and public health laws and regulations).
(c) As of the date of execution of this Agreement, the Redeveloper has received no
notice or communication from any local, state or federal official that the anticipated activities of
the Redeveloper with respect to the Redevelopment Property may be or will be in violation of
any environmental law or regulation.
(d) The Redeveloper will use commercially reasonable efforts to 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 Public Improvements and the Minimum Improvements may be
lawfully constructed.
(e) The Redeveloper shall pay the normal and customary City fees and expenses for
the approval and construction of the Project including, but not limited to, building permit fees,
sewer accessibility charges (SAC), water accessibility charges (WAC) and park dedication fees.
(f) The Redeveloper is purchasing the Redevelopment Property “as is”, based solely
on the Redeveloper’s examination of the Redevelopment Property and with the understanding
that there is no warranty by the City that the Redevelopment Property is fit for any particular
purpose.
(g) The Redeveloper agrees that it will reasonably cooperate with the Authority with
respect to any litigation commenced by third parties against the Authority in connection with this
Agreement (it being the intention of the parties that each of the parties will bear its own costs in
the event that both the Redeveloper and the Authority are named in such litigation).
7
{00147671 8}
(h) The Redeveloper does not require financing for the acquisition of the
Redevelopment Property or the construction of the Public Improvements and the Minimum
Improvements.
(i) Redeveloper will take no action to cause the Minimum Improvements to become
exempt from the levy of ad valorem property taxes, or any statutorily authorized alternative,
before December 31, 2045.
(j) Redeveloper agrees that it will not assign, convey or lease any interest in the
Redevelopment Property or any portion thereof, or this Agreement or any portion thereof, to any
tax-exempt entity under the U.S. Internal Revenue Code of 1986, as the same may be amended
from time to time, without the prior written approval of the Authority. Notwithstanding the
foregoing, concurrent with the recordation of a Certificate of Completion as to a Phase, the
Authority shall cause to be recorded a release from the Declaration of Restrictive Covenants and
Prohibition Against Tax Exemption only those certain lots in a Phase identified by Redeveloper
as to be conveyed by Redeveloper to a homeowners association (“HOA”) formed by
Redeveloper and which lots relate to the common areas of the Redevelopment Property, which
lots are to be identified accordingly on the plat of the Property (collectively, the “HOA Lots”).
In no event shall the HOA Lots contain Minimum Improvements. Redeveloper agrees that it
shall be restricted from conveying the HOA Lots to the HOA until a Certificate of Completion is
issued for a Phase.
ARTICLE III
Conveyance of the Redevelopment Property;
Undertakings of Authority and Redeveloper
Section 3.1.
Conveyance of the Redevelopment Property.
(a) Title. The Authority shall convey title to and possession of the Redevelopment
Property to the Redeveloper under a quit claim deed in the form of the Redevelopment Property
Deed contained in Schedule B. At its sole cost and expense, the Redeveloper shall obtain any
title insurance and endorsements it deems necessary.
At its expense, the Redeveloper shall order within thirty (30) days following the date of this
Agreement a commitment for an owner’s title insurance policy (ALTA Form B) issued by North
American Title Company, 5001 American Boulevard West, Suite 300, Bloomington, Minnesota
55437 (the “Title Company”), naming Redeveloper as the proposed owner-insured of the
Redevelopment Property in the amount of the Purchase Price (the “Commitment”). The
Commitment shall include removal of or endorsement over general exceptions by means of an
extended coverage endorsement. The Commitment shall have a current date as its effective date
and shall commit to insure marketable title to the Redevelopment Property in the Redeveloper.
Such insurance shall be free and clear of all mechanic’s lien claims, unrecorded interests, rights
of parties in possession or other exceptions customarily excluded from such insurance. The
Commitment shall set forth all levied real estate and special assessments related to the
8
{00147671 8}
Redevelopment Property. The Commitment shall include such title policy endorsements as may
be reasonably requested by the Redeveloper. The Commitment shall have attached copies of all
instruments of record which create any easements or restrictions which are referred to in
Schedule B of the Commitment. Developer shall cause Title Company to concurrently deliver a
copy of the Commitment to the Authority. Within thirty (30) days following the date of this
Agreement, Redeveloper shall, at its sole cost and expense, order a Survey of the Redevelopment
Property. Should Redeveloper fail to order a Survey within the time frame set forth hereinabove,
the fifteen (15) day time period for the issuance of title objections by the Redeveloper shall
commence to run fifteen days from the Redeveloper’s receipt of the Commitment. Should the
Redeveloper fail to timely order a Survey and such Survey is not received by Redeveloper prior
to the deadline for issuance of title objections, Redeveloper shall be deemed to have waived all
Survey objections, and the Authority shall not be obligated or required to executed a survey
affidavit or “no-change” affidavit for Title Company in order to afford Redeveloper the ability to
obtain survey coverage or the deletion of survey exceptions.
The Redeveloper will be allowed fifteen (15) days after receipt of the later of the Commitment
and Survey to make an examination thereof and to make any objections to the marketability of
the title to the Redevelopment Property, objections to be made by written notice or to be deemed
waived. Upon receipt of the Redeveloper’s list of written objections, the Authority shall proceed
in good faith and with all due diligence to attempt to cause the objections made by the
Redeveloper to be cured, but Authority shall have no obligation to cure such objections. In the
event that an objection is not resolved to the satisfaction of the Redeveloper, the Redeveloper
shall have the options set forth in Section 3.1 (c) (i), (ii) or (iii), below. In no event shall
Redeveloper object to the terms and conditions of the Declaration of Restrictive Covenants and
Prohibition Against Tax Exemption attached hereto as Schedule F, which is to be recorded
against the Redevelopment Property at or prior to each Closing prior to the recordation of the
Redevelopment Property Deed, it being the understanding of the parties that the Redeveloper is
at all times taking ownership of the Redevelopment Property subject to the Declaration of
Restrictive Covenants and Prohibition Against Tax Exemption.
(b) Survey. The Redeveloper shall obtain, at Redeveloper’s sole cost and expense,
any survey(s) or updated survey(s) necessary for the issuance of title insurance or as necessary to
replat or convey the Redevelopment Property (“Survey”).
(c) Title Not Marketable. If the title to the Redevelopment Property is not
marketable as evidenced by the Commitment and the Survey, together with any appropriate
endorsements, and is not made so by the applicable Closing Date, the Redeveloper may either:
(i) Terminate this Agreement by giving written notice to the Authority, in
which event this Agreement shall become null and void and neither party shall have any further
rights or obligations hereunder, except those indemnification obligations which expressly survive
such termination; or
(ii) Intentionally omitted.
9
{00147671 8}
(iii) Elect to accept the title in its unmarketable or existing condition by giving
written notice to the Authority of the waiver of such objections, and proceed to Closing of the
applicable Phase of the Redevelopment Property.
In the event that Redeveloper has not terminated this Agreement and thereafter
proceeds to Closing, Redeveloper shall be deemed to have selected option (c)(iii) above as to
such Phase of the Redevelopment Property.
(d) Conveyance, Purchase Price and Closing. Subject to the terms of this Agreement,
the Authority agrees to sell and the Redeveloper agrees to purchase the Redevelopment Property
for the portion of the Purchase Price applicable to the Phase being acquired by Redeveloper. The
Authority shall execute and deliver to the Redeveloper a Redevelopment Property Deed at each
Closing, which Redevelopment Property Deed shall be subject to the Declaration of Restrictive
Covenants and Prohibition Against Tax Exception set forth on Schedule F, which is to be
recorded at the Phase 1 Closing prior to the delivery and recordation of the Redevelopment
Property Deed for Phase 1, and which is to be recorded at the Phase 2 Closing prior to the
delivery and recordation of the Redevelopment Property Deed for Phase 2. The conveyance of
title to the Redevelopment Property pursuant to the Redevelopment Property Deed shall be
subject to all of the conditions, covenants, restrictions and limitations imposed by this
Agreement and the Redevelopment Property Deed. The Title Company shall promptly record
the Redevelopment Property Deed following payment of the applicable Purchase Price at each
Closing.
Each Closing shall take place at the principal offices of the Title Company unless the parties
mutually agree in writing that the Closing shall take place at another location. Redeveloper shall
pay the applicable Purchase Price at each Closing.
The Closing for Phase 1 shall occur on the later of (i) April 15, 2019 or (ii) ten (10) days
following final plat approval. The Closing for Phase 2 shall occur within twenty four (24)
months of the Phase 1 Closing Date. Each Closing is at all times contingent upon the conditions
precedent described in Section 3.3 being satisfied for the Authority and the Redeveloper.
(e) Inspection. At the Redeveloper’s expense, the Redeveloper and its agents are
hereby granted the right following execution of this Agreement and prior to the Termination
Date to inspect and test the Redevelopment Property. Any investigations, testing and/or
inspections initiated by the Redeveloper shall be undertaken at the Redeveloper’s sole cost and
expense. After completing its investigation of the Redevelopment Property, if Redeveloper
elects to terminate this Agreement, Redeveloper shall return the Redevelopment Property to
substantially the same condition as existing prior to the investigations, testing and/or inspections;
provided that Redeveloper shall not be responsible for any existing conditions on the Property
that are discovered as a result of such investigations, testing and/or inspections. The
Redeveloper shall hold the Indemnified Parties (as defined in Section 6.4) harmless from and
shall indemnify the Indemnified Parties for any liability resulting from the Redeveloper’s or its
agents entrance upon the Redevelopment Property or any liability resulting from the performance
of any of the tests or inspections referred to in this Section; provided that Redeveloper shall not
be responsible for any existing conditions on the Property that are discovered as a result of such
10
{00147671 8}
investigations, testing and/or inspections. The indemnification requirements set forth herein
shall survive the Closing and the termination of this Agreement.
(f) Taxes; Special Assessments; Other Pro Rations. Real estate taxes due and
payable prior to the year of each Closing shall be paid by the Authority. Real estate taxes due
and payable in the year of each Closing shall be allocated between the parties based on their
respective period of ownership in the year of each Closing. Real estate taxes due and payable in
the years subsequent to each Closing shall be paid by the Redeveloper. The Authority shall pay
all special assessments pending or levied as of the Closing Date for such Phase. The
Redeveloper shall pay all other special assessments levied after the Closing Date for such Phase.
The Redeveloper shall bear all costs of recording the Redevelopment Property Deed except as set
forth below. The Authority shall pay the State tax due in connection with conveyance of the
Redevelopment Property and shall pay the cost of recording any document necessary to place
title in the condition described in this Agreement. The Redeveloper shall pay all other recording
costs incurred in connection with this Agreement. The parties shall equally share other closing
costs. Each party shall pay all sums in cleared funds on the Closing Date.
(g) Plat; Covenants; Easements. The Redeveloper at its expense shall replat the
Redevelopment Property. The Redeveloper shall pay all costs for plats, replats, lot splits,
preparation of restrictive covenants, easements and any other documentation necessary for the
construction and sale of the Minimum Improvements and all costs of recording any such
documents. The Authority agrees to reasonably cooperate with Redeveloper’s applications with
respect to the Redevelopment Property.
Section 3.2.
Intentionally Omitted.
Section 3.3.
Conditions Precedent to Conveyance.
(a) The obligation of the Authority to convey the Redevelopment Property to the
Redeveloper at Closing shall be subject to the following conditions precedent:
(i)The Redeveloper shall be in material compliance with all of the terms and
provisions of this Agreement;
(ii)The Authority shall have approved the Preliminary Plans for the Project;
(iii)The Redeveloper shall have paid the Purchase Price as described in
Section 3.1;
(iv)The Authority shall have executed and arranged to be recorded prior to the
recordation of the Redevelopment Property Deed, the Declaration of
Restrictive Covenants and Prohibition Against Tax Exemption in the form
attached as Schedule F with respect to the Redevelopment Property.
11
{00147671 8}
(v) Each of the Redeveloper’s representations and warranties
set forth in Section 2.2 shall be true as of the Closing Date and the
Redeveloper shall so certify in writing at Closing.
(vi) The Authority shall have approved the preliminary plat for
the Project, including, but not limited to the number of units, the trailways,
outlots and easements located thereon.
(b) The obligation of the Redeveloper to purchase the Redevelopment Property at
Closing shall be subject to the following conditions precedent (“Redeveloper Conditions”):
(i)There shall be no change in the environmental condition of the
Redevelopment Property since the effective date of Redeveloper’s
environmental consultant’s report. Redeveloper shall not have become
aware of or discovered any environmental condition or matter relating to
the Redevelopment Property that would subject or potentially expose
Redeveloper to any (i) fee, cost, expense, obligation or liability in regard
to the Redevelopment Property, or (ii) impairment to Redeveloper’s
construction operations or marketing efforts with respect to the sale of
residential homes, as determined by Redeveloper in the exercise of
reasonable discretion. The environmental condition of the Redevelopment
Property, not including any required soil corrections, shall be suitable for
the construction of the Minimum Improvements and Redeveloper shall
have received a No Association Determination from the Minnesota
Pollution Control Agency, if applicable, based on the approved Response
Action Plan if such a plan is necessary;
(ii)The Authority shall be in material compliance with all terms and
provisions of this Agreement;
(iii)Title to the Redevelopment Property shall be acceptable to the
Redeveloper;
(iv)Each of the Authority’s representations and warranties set forth in this
Agreement shall be true as of each Date of Closing and the Authority shall
so certify in writing at each Closing;
(v)No moratorium has been imposed upon the Redevelopment Property;
(vi)The required permits, including, but not limited to building permits, have
been issued for the Public Improvements and the Minimum Improvements
for the Phase being acquired;
(vii)Redeveloper shall have received all necessary final, non-appealable
approvals of a final plat of the Redevelopment Property, in form and
12
{00147671 8}
substance acceptable to Buyer, in its sole discretion, from the City and any
other necessary governmental authorities;
(viii)Redeveloper has received executed easements for off-site utility, drainage,
construction or other easements required for the development of the
Redevelopment Property;
(ix)Redeveloper’s Construction Plans have been approved by the City, the
Authority and any other appropriate governmental authorities, and
significant architectural modifications are not required to such
Construction Plans;
(x)Within 15 days following Redeveloper’s receipt of preliminary plat
approval for the Redevelopment Property, Redeveloper shall have
received written approval of the Corporate Investment Committee
(“Investment Committee”) of Lennar Corporation, its parent company.
No waiver of such condition shall be implied, but shall be expressed, if at
all, only by written notice from Buyer specifically waiving such condition;
and
(xi)Redeveloper’s Preliminary Plans shall have been approved by the City, the
Authority and any other appropriate governmental authorities together
with all final floor plans and sketches of the proposed exterior and interior
of the Minimum Improvements.
(c) In the event the aforementioned conditions precedent of the Authority or of the
Redeveloper are not satisfied by the applicable Closing Date (except as otherwise set forth
hereinabove with respect to corporate approval deadline), either party shall have the right to
extend the Closing Date by an additional 30 days by notifying the other party in writing.
Thereafter the parties may extend the Closing until the conditions precedent are satisfied only by
mutual written agreement. In the event the parties cannot reach such mutual agreement for such
additional extension, and Redeveloper has not waived the Redeveloper Conditions in writing,
then Authority may give notice of termination to Redeveloper following the scheduled Closing
Date and this Agreement shall automatically terminate ten (10) business days following such
notice of termination, unless within such 10-day period Redeveloper gives written notice of
waiver or satisfaction of the Redeveloper Conditions and proceeds to Closing (except for the
corporate approval condition, in which event if the written notice regarding the waiver of same is
not received within thirty (30) days following Redeveloper’s receipt of preliminary Plat approval
for the Redevelopment Property, the Authority shall have the right to give notice of termination
to Redeveloper and shall not have to wait until the scheduled Closing Date to do so, in which
event this Agreement shall automatically terminate ten (10) business days following such notice
of termination, unless within such 10-day period Redeveloper gives written notice of waiver of
the corporate approval condition). If this Agreement is terminated as provided herein, neither
party shall have any further rights or obligations hereunder, except those indemnification
obligations which expressly survive such termination.
13
{00147671 8}
Section 3.4.
Documents at Closing.
(a) At each Closing, the Authority shall deliver to the Redeveloper:
(i) The Redevelopment Property Deed,
(ii) All certificates, instruments and other documents necessary to permit the
recording of the Redevelopment Property Deed,
(iii) A standard Seller’s Affidavit properly executed on behalf of the Authority
with respect to judgments, bankruptcies, tax liens, mechanics liens, parties in possession,
unrecorded interests, encroachment or boundary line questions and related matters,
(iv) If applicable, the owner’s duplicate certificate of title to the
Redevelopment Property. The Authority need not provide an abstract of title if the property is
classified as abstract property,
(v) An affidavit of the Authority in form and content satisfactory to the
Redeveloper stating that the Authority is not a “foreign person” within the meaning of Section
1445 of the Internal Revenue Code, and
(vi) The certification as to representations and warranties described in Section
3.3(b)(iv).
(vii) The executed Declaration of Restrictive Covenants and Prohibition
Against Tax Exemption.
(b) At Closing, the Redeveloper shall deliver to the Authority:
(i) The Purchase Price by wire transfer of readily available funds,
(ii) A Certificate of Real Estate Value, and
(iii) The certification as to representations and warranties described in Section
3.3(a)(viii).
ARTICLE IV
Construction of
Public Improvements and Minimum Improvements
14
{00147671 8}
Section 4.1.
Construction of Public Improvements. Redeveloper shall, at its sole cost
and expense, construct on each Phase of the Redevelopment Property the Public Improvements.
Subject to Unavoidable Delays, Redeveloper will complete the Public Improvements for Phase 1
within eighteen (18) months following the Phase 1 Closing and Public Improvements for Phase 2
within twelve (12) months following the Phase 2 Closing.
Section 4.2.
Construction of Minimum Improvements.
(a) Following conveyance by the Authority of Phase 1 of the Redevelopment
Property, the Redeveloper shall, at its sole cost and expense, construct thereon the Minimum
Improvements for Phase 1.
(b) Subject to Unavoidable Delays, Redeveloper will complete the Model Homes as
soon practicable, but no later than twelve (12) months following the Phase 1 Closing.
(c) Subject to Unavoidable Delays, Redeveloper will complete the remaining
Minimum Improvements for each Phase within the time frames established for the Public
Improvements in Section 4.1, above.
(d) The Redeveloper shall use commercially reasonable efforts to cause the initial
unit sales prices to the initial owners of all such homes to average no less than $250,000 per unit;
provided all parties acknowledge that Redeveloper does not control market prices and fair
market value determinations. Floor plans and home designs will be consistent with the plans
included in the Preliminary Plans. The Redeveloper shall construct the Minimum Improvements
in accordance with the Construction Plans approved by the City.
Section 4.3.
Preliminary Plans and Construction Plans.
(a) Preliminary Plans. Together with Redeveloper’s application for preliminary plat
approval, the Redeveloper shall submit the Preliminary Plans to the Authority for approval. The
Preliminary Plans shall not be inconsistent with this Agreement or any applicable state and local
laws and regulations, insofar as said consistency may be determined at said preliminary stage. If
approval of the Preliminary Plans is requested in writing by the Redeveloper at the time of
submission thereof to the Authority, the Authority shall approve or reject (in whole or in part)
such Preliminary Plans in writing within twenty (20) days after the date of receipt thereof. If no
written rejection is made within said twenty (20) days, the Preliminary Plans shall be deemed
approved by the Authority. Any rejection shall set forth in detail the reasons therefor. If the
Authority rejects the Preliminary Plans, in whole or in part, the Redeveloper shall submit new or
revised Preliminary Plans within a reasonable time after receipt by the Redeveloper of the notice
of rejection. The provisions of this Section relating to approval, rejection and resubmission of
new or revised Preliminary Plans shall continue to apply until the Preliminary Plans have been
approved by the Authority. The Authority’s approval of the Preliminary Plans shall not be
unreasonably withheld, conditioned or delayed, however if an Event of Default has occurred or is
continuing, the Authority may withhold approval of the Preliminary Plans.
15
{00147671 8}
(b) Construction Plans. Together with Redeveloper’s application for preliminary plat
approval, the Redeveloper shall submit Construction Plans to the City. The Construction Plans
shall provide for the construction of the Minimum Improvements and shall be in conformity in
all material respects with this Agreement, the Preliminary Plans, and all applicable state and
local laws and regulations.
No approval by the Authority shall be deemed to relieve the Redeveloper of the obligation to
comply with the terms of this Agreement and applicable federal, State and local laws,
ordinances, rules and regulations, or to construct the Minimum Improvements in accordance
therewith. No approval by the Authority shall constitute a waiver of any Event of Default.
(c) Changes. If the Redeveloper desires to make any material change in the
Preliminary Plans after their approval by the Authority, then the Redeveloper shall submit the
proposed change to the Authority for its approval. If the Preliminary Plans, as modified by the
proposed change, conform to the requirements of this Section with respect to such previously
approved Plans, the Authority shall approve the proposed change and notify the Redeveloper in
writing of its approval. Such change in the Preliminary Plans shall, in any event, be deemed
approved by the Authority unless rejected in writing by the Authority, in whole or in part, within
twenty (20) days after receipt of the notice of such change, setting forth in detail the reasons
therefor.
Section 4.4.
Certificate of Completion.
(a) For each Phase, promptly after completion of: (i) the Public Improvements (as
evidenced by the documentation set forth in Section 4.4 (c)); and (ii) the Minimum
Improvements (as evidenced by the documentation set forth in Section 4.4(c)), the Authority will
furnish the Redeveloper with a Certificate of Completion therefor; provided the Models Homes
are a part of the Minimum Improvements for Phase 1 only; and provided further that in addition
to the forgoing requirements, Redeveloper shall have received a certificate of occupancy for ten
(10) Approved Dwellings within Phase 1 before the Authority will issue a Certificate of
Completion for Phase 2. The Certificate of Completion shall be a conclusive determination and
conclusive evidence of the satisfaction and termination of all of the agreements and covenants in
this Agreement and in the Redevelopment Property Deed for the applicable Phase, including
without limitation the Authority’s right of re-entry and reverter rights in Section 7.7 below. The
Authority may issue the Certificate of Completion through administrative action of the Executive
Director and Chairperson, without the need for a public hearing.
(b) If the Authority believes the Redeveloper has failed to complete the Public
Improvements and the Minimum Improvements for a Phase, or the Authority refuses or fails to
provide a Certificate of Completion for a Phase, the Authority shall, within twenty (20) days
after a written request by the Redeveloper, provide the Redeveloper with a written statement,
indicating in adequate detail in what respects the Authority believes the Redeveloper has failed
to complete the Public Improvements and Minimum Improvements for such Phase in accordance
with the provisions of this Agreement, and what measures or acts will be reasonably necessary,
for the Redeveloper to perform in order to obtain the Certificate of Completion for such Phase.
16
{00147671 8}
(c) The construction of the Model Homes for Phase 1 shall be deemed to be
completed in accordance with the Redeveloper’s obligations hereunder when the City has issued
a certificate of occupancy for both Model Homes. The construction of the Public Improvements
for each Phase shall be deemed to be completed in accordance with the Redeveloper’s
obligations hereunder when the City has accepted the Public Improvements in writing. The
Authority shall accept the Public Improvements in writing if Redeveloper has constructed the
same in accordance with the approved Construction Plans.
(d) Prior to issuance of a Certificate of Completion, Approved Dwellings may be
released from this Agreement only pursuant to this Section 4.4(d). Once a certificate of
occupancy is issued for the Model Homes and Redeveloper has posted the letter of credit as
provided in Section 6.3, each Approved Dwelling within the Redevelopment Property shall be
deemed released from the obligations of this Agreement and this Agreement may be disregarded
as to such Approved Dwelling upon substantial completion of the Approved Dwelling without
further action by the Authority, City or Developer and without need to record a separate release.
Substantial completion will occur when the City issues a certificate of occupancy for the
Approved Dwelling. Such certification by the City shall be a conclusive determination of
satisfaction and termination of the agreements and covenants in this Agreement as to such
Approved Dwelling.
ARTICLE V
Insurance
Section 5.1.
Redeveloper Insurance.
(a) The Redeveloper will provide and maintain at all times during the process of
constructing the Minimum Improvements and, from time to time at the request of the Authority,
furnish the Authority with proof of payment of premiums on:
(i) Builder’s risk insurance, written on the so-called “Builder’s Risk –
Completed Value Basis,” in an amount equal to one hundred percent (100%) of the insurable
value of the Minimum Improvements at the date of completion, and with coverage available in
non-reporting form on the so-called “all risk” form of policy. The interest of the Authority shall
be protected in accordance with a clause in form and content reasonably satisfactory to the
Authority. The builder’s risk policy shall be obtained for each of the homes constituting the
Minimum Improvements at the time the Redeveloper receives a certificate of occupancy for each
home;
(ii) Comprehensive general liability insurance together with an Owner’s
Contractor’s Policy with limits against bodily injury and property damage of not less than
$2,000,000 for each occurrence (to accomplish the above-required limits, an umbrella excess
liability policy may be used); and
(iii) Workers’ compensation insurance, with statutory coverage.
17
{00147671 8}
(b) All insurance required by this Article V shall be taken out and maintained in
responsible insurance companies selected by the Redeveloper which are authorized under the
laws of the State to assume the risks covered thereby. The Redeveloper will deposit annually
with the Authority policies evidencing all such insurance, or a certificate(s) or binder(s) of the
respective insurers stating that such insurance is in force and effect. Unless otherwise provided
in this Article V, each policy shall contain a provision that the insurer shall not cancel or modify
it without giving written notice to the Redeveloper 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 Redeveloper shall furnish the Authority with evidence
satisfactory to the Authority that the policy has been renewed or replaced by another policy
conforming to the provisions of this Article V, or that there is no necessity therefor under the
terms hereof. In lieu of separate policies, the Redeveloper may maintain a single policy, blanket
or umbrella policies, or a combination thereof, having the coverage required herein, in which
event the Redeveloper shall deposit with the Authority a certificate or certificates of the
respective insurers as to the amount of coverage in force upon the Minimum Improvements.
ARTICLE VI
Prohibitions Against Assignment and Transfer; Indemnification
Section 6.1.
Representation as to Redevelopment. The Redeveloper represents and
agrees that its purchase of the Redevelopment Property, and its other undertakings pursuant to
this Agreement, are, and will be used, for the purpose of redevelopment of the Redevelopment
Property and not for speculation in land holding. The Redeveloper further recognizes that the
qualifications and identity of the Redeveloper are of particular concern to the Authority, in view
of (a) the importance of the redevelopment of the Redevelopment Property to the general welfare
of the Authority; and (b) the fact that any act or transaction involving or resulting in a significant
change in the identity of the party or parties in control of the Redeveloper or the degree of such
control is for practical purposes a transfer or disposition of the Redevelopment Property then
owned by the Redeveloper. The Redeveloper further recognizes that it is because of such
qualifications and identity that the Authority is entering into this Agreement with the
Redeveloper, and, in so doing, is willing to accept the obligations of the Redeveloper for the
faithful performance of all undertakings and covenants hereby by it to be performed.
Section 6.2.
Prohibition Against Transfer of Redevelopment Property and Assignment of
Agreement. Also, for the foregoing reasons the Redeveloper represents and agrees that prior to
the issuance of a Certificate of Completion for a Phase, as to such Phase:
(a) The Redeveloper has not made or created and will not make or create or suffer to
be made or created any total or partial sale, assignment, conveyance, or lease, or any trust or
power, or transfer in any other mode or form of or with respect to this Agreement or the
Redevelopment Property or any part thereof or any interest therein, or any contract or agreement
to do any of the same, without the prior written approval of the Authority. If the Redeveloper
remains liable and bound by this Redevelopment Agreement, the Authority’s approval is not
required. Any such transfer shall be subject to the provisions of this Agreement.
18
{00147671 8}
Notwithstanding the foregoing, the Redeveloper may, after the Closing on a Phase and after
either (i) the issuance of a Certificate of Completion for such Phase, or (ii) the posting of a letter
of credit pursuant to Section 6.3:
(i) Transfer the Phase of the Redevelopment Property to any
corporation, partnership, or limited liability company controlling,
controlled by, or under common control with the Redeveloper;
(ii) Enter into purchase agreements for the sale of the homes in the
ordinary course of the Redeveloper’s business and conveyance of a platted
lot to third-party purchaser of a home;
(v)Convey any easements necessary for the Project; or
(vi)Convey the HOA Lots to the HOA to be formed by Redeveloper.
(b) In the event the Redeveloper, upon transfer or assignment of the Redevelopment
Property, seeks to be released from its obligations under this Agreement, the Authority shall be
entitled to require, except as otherwise provided in this Agreement, as conditions to any such
release that:
(i) Any proposed transferee shall have the qualifications and financial
responsibility, in the reasonable judgment of the Authority, necessary to fulfill the Redeveloper’s
obligations hereunder;
(ii) Any proposed transferee, by instrument in writing satisfactory to the
Authority and in form recordable among the land records, shall, for itself and its successors and
assigns, and expressly for the benefit of the Authority, have assumed all of the obligations of the
Redeveloper under this Agreement and agreed to be subject to all of the conditions and
restrictions to which the Redeveloper is subject; provided, however, that the fact that any
transferee of, or any other successor in interest to, the Redevelopment Property, or any part
thereof, shall not, for whatever reason, have assumed such obligations or so agreed, shall not
(unless and only to the extent otherwise specifically provided in this Agreement or agreed to in
writing by the Authority) deprive the Authority of any rights or remedies with respect to the
Redevelopment Property or any part thereof or the construction of the Minimum Improvements;
it being the intent of the parties as expressed in this Agreement that (to the fullest extent
permitted at law and in equity and excepting only in the manner and to the extent provided
otherwise in this Agreement) no transfer of, or change with respect to, ownership in the
Redevelopment Property or any part thereof, or any interest therein, whether voluntary or
involuntary, shall operate, legally or practically, to deprive or limit the Authority with respect to
any rights, remedies or controls provided in this Agreement as to the Minimum Improvements
that the Authority would have had, had there been no such transfer or change. In the absence of
specific written agreement by the Authority to the contrary, no such transfer or approval by the
Authority thereof shall be deemed to relieve the Redeveloper, or any other party bound by this
Agreement or otherwise with respect to the construction of the Minimum Improvements, from
any of its obligations with respect thereto; and
19
{00147671 8}
(iii) Any and all instruments and other legal documents involved in effecting the
transfer of any interest in this Agreement or the Redevelopment Property governed by this
Article shall be in a form reasonably satisfactory to the Authority.
If the foregoing conditions are satisfied, then the Redeveloper shall be released from its
obligations under this Agreement.
Section 6.3.
Letter of Credit as Security for Performance. Once a certificate of
occupancy is issued for the Model Homes, if Redeveloper has not completed the Public
Improvements and remaining Minimum Improvements (exclusive of the Model Homes) for a
Phase, but Redeveloper desires to obtain building permits and commence construction of the
Approved Dwellings within such Phase, Redeveloper may post with the City as security for
performance of Redeveloper’s obligations, a customary letter of credit in form reasonably
acceptable to the City in the amount of all unfinished Public Improvements and Minimum
Improvements (exclusive of the Model Homes) for such Phase. The Redeveloper and the City
Engineer will work cooperatively to determine the scope of and cost to complete any unfinished
work as shown on the approved Construction Plans. Upon posting of the letter of credit,
Redeveloper may take any action which was otherwise previously permitted to be taken only
after issuance of a Certificate of Completion.
Section 6.4.
Release and Indemnification Covenants.
(a) The Redeveloper covenants and agrees that the City, the Authority and the
governing body members, officers, agents, servants and employees of either of them
(collectively, the “Indemnified Parties”) shall not be liable for, and Redeveloper agrees to
indemnify and hold harmless the Indemnified Parties against, any loss or damage to property or
any injury to or death of any person occurring at or resulting from any defect in the Minimum
Improvements, due to any act, including negligence, of the Redeveloper or of others acting under
its direction or control; provided, however, that the Redeveloper’s indemnification obligations in
this subparagraph (a) shall not apply to any loss resulting from negligent, willful or wanton
misconduct of any of the Indemnified Parties. The indemnification requirement set forth herein
shall survive the Closing and the termination of this Agreement.
(b) The Redeveloper agrees to protect and defend the Indemnified Parties, now or
forever, and further agrees to hold the Indemnified Parties harmless, from any claim, demand,
suit, action or other proceeding by any person or entity arising or purportedly arising from this
Agreement or the transactions contemplated hereby or the construction and ownership of the
Minimum Improvements, due to any act, including negligence of the Redeveloper or of others
acting under the direction or control of the Redeveloper; provided, however, that the
Redeveloper’s indemnification obligations in this subparagraph (b) shall not apply to any loss
resulting from any negligent or willful misrepresentation or any negligent, willful or wanton
misconduct of any of the Indemnified Parties.
(c) None of the Indemnified Parties shall be liable for any damage or injury to the
person or property of the Redeveloper or its officers, agents, servants or employees or any other
20
{00147671 8}
person who may be on or about the Redevelopment Property or Minimum Improvements due to
any act or negligence of any person, other than the negligence or misconduct of an Indemnified
Party.
(d) None of the Indemnified Parties shall be liable to the Redeveloper or to any third
party for any consequential or other damages that may arise out of delays of any kind relating to
activities undertaken pursuant to this Agreement, including but not limited to delays due to
environmental conditions, court challenges or elements outside the control of the Authority.
(e) All covenants, stipulations, promises, agreements and obligations of the Authority
contained herein shall be deemed to be the covenants, stipulations, promises, agreements and
obligations of the Authority and not of any governing body member, officer, agent, servant or
employee of the Authority in the individual capacity thereof.
(f) Nothing in this Section is intended to waive any municipal liability limitations
contained in Minnesota Statutes, particularly Chapter 466.
ARTICLE VII
Events of Default
Section 7.1.
Events of Default Defined. The following shall be “Events of Default”
under this Agreement and the term “Event of Default” shall mean any one or more of the
following events:
(a) Failure by the Redeveloper, while the owner of the Redevelopment Property, to
timely pay all real property taxes assessed with respect thereto.
(b) Failure by the Redeveloper to complete the Project pursuant to the terms,
conditions and limitations of this Agreement.
(c) Failure by the Redeveloper to observe or perform any other material covenant,
condition, obligation or agreement on its part to be observed or performed under this Agreement,
following notice of default to the Redeveloper, as discussed herein, and the expiration of thirty
(30) days to cure said alleged default.
(d) The Redeveloper shall:
(i) file any petition in bankruptcy or for any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under the United States
Bankruptcy Code or under any similar federal or state law; or
(ii) make an assignment for the benefit of its creditors; or
21
{00147671 8}
(iii) admit in writing its inability to pay its debts generally as they become due;
or
(iv) be adjudicated as bankrupt or insolvent; or if a petition or answer
proposing the adjudication of the Redeveloper as 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 the Redeveloper, or of the Project, or part
thereof, shall be appointed in any proceeding brought against the Redeveloper, and shall not be
discharged within ninety (90) days after such appointment, or if the Redeveloper shall consent to
or acquiesce in such appointment.
Section 7.2.
Remedies on Default. Whenever any Event of Default referred to in Section
7.1 occurs, the Authority may take any one or more of the actions set forth below if the Event of
Default is not cured within thirty (30) days after the Authority provides written notice to the
Redeveloper of such Event of Default (or if the default is of a nature that cannot reasonably be
cured within 30 days, then such additional time as may reasonably be required provided
Redeveloper promptly commences such cure and diligently pursues the same to completion, but
in no event in excess of 180 days from the date of the initial written notice of such Event of
Default). Notice of default shall specify the nature of the default under this Agreement and the
actions necessary to cure the default.
(a) The Authority may suspend its performance under this Agreement until it receives
assurances from the Redeveloper, deemed adequate by the Authority, that the Redeveloper will
cure its default and continue its performance under this Agreement.
(b) The Authority may cancel and rescind this Agreement as to the Phase of the
Redevelopment Property for which a Certificate of Completion has not been issued and/or as to
the Phase of the Redevelopment Property for which a Closing has not yet occurred.
(c) The Authority may withhold its Certificate of Completion: (i) in the event the
Model Homes are not completed within the time period required by Section 4.2(a), or (ii) in the
event the Public Improvements are not completed within the time period required by Section
4.1(a). Upon cure of such Event of Default, and provided that Redeveloper is in compliance
with this Agreement, the Authority shall release any Certificate of Completion that was withheld
pursuant to this subsection.
(d) Take whatever action, including legal, equitable or administrative action, which
may appear necessary or desirable to the Authority, including any actions to collect any
payments due under this Agreement, or to enforce performance and observance of any
obligation, agreement, or covenant to the Redeveloper under this Agreement.
(e) Exercise its rights of re-entry and reverter as set forth in the Redevelopment
Property Deed.
22
{00147671 8}
The Authority may elect to take no such action, notwithstanding an Event of Default not having
been cured within said thirty (30) days, if the Redeveloper provides the Authority with written
assurances satisfactory to the Authority that the Event of Default will be cured as soon as
reasonably possible.
Notwithstanding anything to the contrary in this Agreement, however, in the event that any
Event of Default by Redeveloper occurs prior to the Phase 1 Closing, and Redeveloper fails to
cure within the time period provided in this Agreement, the Authority’s sole remedy shall be to
terminate this Agreement in the manner provided by Minn. Stat. Sec. 559.21, in which event this
Agreement shall be deemed null and void and the parties shall be released from all further
obligations and liabilities under this Agreement, except for such indemnification obligations
which expressly survive such termination. Such termination of this Agreement will be the only
remedy available to the Authority for an Event of Default by Redeveloper occurring prior to the
Phase 1 Closing, and Redeveloper will not be liable for damages (except for those arising out of
indemnification obligations set forth herein) or specific performance. In the event that any Event
of Default by Redeveloper occurs after the Phase 1 Closing, but prior to the Phase 2 Closing, and
Redeveloper fails to cure within the time period provided in this Agreement, should Such Event
of Default relate to the default by Redeveloper of its obligations under Section 4.1 and 4.1(a) of
this Agreement as to Phase 1, the Authority’s remedies shall include the rights of re-entry and
reverter as set forth in the Redevelopment Property Deed.
Section 7.3.
Authority 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 Redeveloper shall be an Event of Default for the Authority.
Whenever an Event of Default occurs by the Authority, the Redeveloper may terminate this
Agreement by giving written notice to the Authority, in which event this Agreement shall
become null and void and neither party shall have any further rights or obligations hereunder.
Such termination of this Agreement will be the only remedies available to the Redeveloper for an
Event of Default by Authority, and Authority will not be liable for damages or specific
performance. Notwithstanding the foregoing, in the case of an Event of Default by the
Authority, Redeveloper may also submit to the Authority evidence of actual out of pocket costs
incurred and paid to third parties (but not attorneys fees and costs) pursuit of due diligence,
engineering and survey work for the Redevelopment Property (including without limitation,
completing the Survey, preparation of the preliminary and final plat, generation of new
environmental reports, and the completion of soil borings on the Redevelopment Property), and
the Authority shall reimburse Redeveloper for such out of pocket costs in an amount not to
exceed (a) prior to the Closing on Phase 1, $50,000, or (b) if after the Closing on Phase 1 but
prior to the Closing on Phase 2, $20,000.
Section 7.4
No Remedy Exclusive. No remedy of the Authority hereunder is intended
to be exclusive of any other available remedy or remedies, but each and every such remedy shall
be cumulative and shall be in addition to every other remedy given under this Agreement or now
or hereafter existing at law or in equity. No delay or omission to exercise any right accruing
upon any default shall impair any such right or shall be construed to be a waiver thereof, but any
such right may be exercised from time to time and as often as may be deemed expedient.
23
{00147671 8}
Section 7.5.
No Implied Waiver. In the event any agreement contained herein should be
breached by any 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 7.6.
Agreement to Pay Attorney’s Fees and Expenses. Whenever any Event of
Default occurs and the Authority employs attorneys or incurs other expenses for the collection of
payments due or to become due or for the enforcement or performance of any obligation or
agreement on the part of the Redeveloper herein contained, the Redeveloper agrees that it shall,
on demand therefor, pay to the Authority the reasonable fees of such attorneys and such other
reasonable expenses so incurred by the Authority.
Section 7.7.
Revesting Title in Authority Upon Happening of Event Subsequent to
Conveyance to Redeveloper. In the event that subsequent to conveyance of the Redevelopment
Property to the Redeveloper and prior to the Termination Date:
(a) Subject to Unavoidable Delays, the Redeveloper fails to carry out its obligations
with respect to, for each Phase, the construction of the Public Improvements and the Model
Homes (for Phase 1) (including the failure to meet the deadline for the completion of such Public
Improvements or Model Homes), or abandons or substantially suspends construction work of the
same, and any such failure, abandonment, or suspension shall not be cured, ended, remedied or
assurances reasonably satisfactory to the Authority made within ninety (90) days after written
demand from the Authority to the Redeveloper to do so (or such longer time period as may
reasonably be required under the circumstances, provided Redeveloper promptly commences
such cure and diligently pursues the same to completion, but in no event in excess of 180 days
from the date of the initial written demand from the Authority); or
(b) The Redeveloper fails to pay real estate taxes or assessments on the
Redevelopment Property or any part thereof when due from the Redeveloper or creates, suffers,
assumes, or agrees to any encumbrance or lien on the Redevelopment Property which is
unauthorized by this Agreement and has priority over the Authority’s rights under this
Agreement, or shall suffer any levy or attachment to be made, or any materialmen’s or
mechanics’ liens, or any other unauthorized encumbrance or lien to attach to the Redevelopment
Property, and such taxes or assessments shall not have been paid, or the encumbrance or lien
removed or discharged or provisions reasonably satisfactory to the Authority made for such
payment, removal, or discharge within thirty (30) days after written demand by the Authority to
do so; provided, that if the Redeveloper shall first notify the Authority of its intention to do so, it
may in good faith contest any real estate taxes or any mechanics’ or other lien and, in such event,
the Authority shall permit such taxes or mechanics’ or other lien to remain undischarged and
unsatisfied during the period of such contest and any appeal, but only if the Redeveloper
provides the Authority with a bank letter of credit or other security in the amount of the taxes or
the lien, in a form reasonably satisfactory to the Authority pursuant to which the bank or other
obligor will pay to the Authority the amount of such taxes or lien in the event that the taxes or
the lien is finally determined to be valid. During the course of such contest the Redeveloper
shall keep the Authority informed respecting the status of such defense; or
24
{00147671 8}
(c) There is, in violation of this Agreement, any transfer of the Redevelopment
Property or any part thereof (other than those permitted in Section 6.2 above), and such violation
shall not be cured within ninety (90) days after written demand by the Authority to the
Redeveloper;
The Authority shall provide written notice to Redeveloper and provide Redeveloper ninety (90)
days (or such longer time period as may reasonably be required under the circumstances,
provided Redeveloper promptly commences such cure and diligently pursues the same to
completion, but in no event in excess of 180 days from the date of the initial written notice from
the Authority) to cure the deficiency or default of the Redeveloper. If the Redeveloper fails to
cure any and all deficiencies and defaults by the Redeveloper in the time period set forth herein,
then the Authority shall have the right to re-enter and re-take possession of any Phase of the
Redevelopment Property for which a Certificate of Completion has not been issued and to
terminate (and revest in the Authority) the estate conveyed by any Redevelopment Property
Deed to the Redeveloper, it being the parties’ intent that the conveyance of each Phase of the
Redevelopment Property to the Redeveloper shall be made upon, and that the Redevelopment
Property Deed shall contain, a condition subsequent to the effect that in the event of any default
on the part of the Redeveloper and failure on the part of the Redeveloper to, post Closing on such
Phase, remedy such default within the period and in the manner stated in such subdivisions, the
Authority at its option may declare a termination in favor of the Authority of the title and all the
rights and interest in and to the Phase of the Redevelopment Property so affected, and that such
title and all rights and interests of the Redeveloper, and any assigns or successors in interest to
and in such Phase of the Redevelopment Property, shall revert to the Authority, but only if the
events stated in this Section 7.7 have not been cured within the time periods provided above.
The Authority shall have no right to re-enter or retake title to and possession of a Phase for
which a Certificate of Completion has been issued.
Section 7.8.
Resale of Reacquired Redevelopment Property; Disposition of Proceeds.
Upon revesting in the Authority of title to any parcel of the Redevelopment Property or any part
thereof as provided above, the Authority shall have no further responsibility to the Redeveloper
hereunder with respect to that or any subsequent parcel, and the Authority may sell or otherwise
devote said parcels to such other uses as the Authority in its sole discretion determines.
Section 7.9
Intentionally Omitted.
ARTICLE VIII
Additional Provisions
Section 8.1.
Conflict of Interest. No member, official, or employee of the Authority
shall have any personal interest, direct or indirect, in the Agreement, nor shall any such member,
official or employee participate in any decision relating to the Agreement which affects his
25
{00147671 8}
personal interests or the interests of any corporation, partnership, or association in which he is,
directly or indirectly, interested.
Section 8.2.
Restrictions on Use. The Redeveloper shall not, in marketing or sale of the
Redevelopment Property, the Minimum Improvements, or any portion of the such real property
or improvements, discriminate upon the basis of race, color, creed, sex or national origin or any
other basis prohibited by applicable local, State or federal laws or regulations.
Section 8.3.
Provisions Not Merged With Deed. None of the provisions of this
Agreement are intended to or shall be merged by reason of any deed transferring any interest in
the Redevelopment Property and any such deed shall not be deemed to affect or impair the
provisions and covenants of this Agreement.
Section 8.4.
Notices and Demands. Any notice, demand, or other communication
permitted or required to be given hereunder by either party to the other shall be deemed given or
delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt
requested, transmitted by facsimile, delivered by a recognized overnight carrier, or delivered
personally to the following addresses:
(a) If to the Redeveloper:
U.S. Home Corporation
th
16305 36 Avenue North, Suite 600
Plymouth, MN 55446
Attn: Jonathan Aune
With a copy to:
Lennar Corporation
3030 N. Rocky Point Dr. W.
Tampa, FL 33607
Attn: Phil Wolf, Region Counsel
And to: Vantage Law Group, PLLC
125 SE Main Street, Suite 250
Minneapolis, MN 55414
Attn: Jerry Perron
(b) If to the Authority: Housing and Redevelopment Authority in and for the City of
Fridley, Minnesota, 6431 University Avenue NE, Fridley, MN 55432, Attention: City Manager.
Fax: (763) 571-1287.
With a copy to: Monroe Moxness Berg PA, 7760 France Avenue South, Suite
700, Minneapolis, MN 55435-5844, Attention: James R. Casserly, Esq. Fax: (952) 885-5969.
Section 8.5.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
26
{00147671 8}
Section 8.6.
Law Governing. This Agreement will be governed and construed in
accordance with the laws of the State.
Section 8.7.
Termination. This Agreement shall expire on the Termination Date if it has
not been terminated before such date pursuant to any provision hereof.
Section 8.8.
Signatures. Authority hereby acknowledges and confirms that Authority
has been apprised of the corporate policy of Redeveloper to the effect that all contracts and
contract amendments entered into by Redeveloper regarding the purchase or development of land
must be executed by both (i) either the Region President, Region Vice President or Region
Counsel and (ii) another Vice President of Redeveloper, and Redeveloper shall not be bound
under this Agreement unless it has been so executed.
Section 8.9.
Blackout Provision. Notwithstanding anything to the contrary set forth in
this Agreement, Redeveloper shall not be obligated to make any payment hereunder, nor shall
Redeveloper be obligated to close on the purchase of the Redevelopment Property under this
Agreement, at any time during the last five (5) business days of the months of February, May,
Blackout Period
August or November (each, a “”). Any payment that would otherwise be due
during a Blackout Period shall be due and payable on the third (3rd) business day after the
applicable Blackout Period. A Closing that would otherwise occur during any Blackout Period
shall occur on the third (3rd) business day after the applicable Blackout Period.
Section 8.10.
Provisions Surviving Termination. Termination of this Agreement shall
not terminate any indemnification or other rights or remedies under this Agreement due to (i) any
Event of Default which occurred and was continuing prior to such termination, or (ii) any cause
of action which arose before the termination. In addition, termination of this Agreement shall
not terminate any Declaration of Restrictive Covenants and Prohibition Against Tax Exemption
which shall have been recorded against the Redevelopment Property at or prior to Closing.
IN WITNESS WHEREOF, the Authority has caused this Agreement to be duly executed
in its name and behalf and the Redeveloper has caused this Agreement to be duly executed on or
as of the date first above written.
(Signature pages follow)
27
{00147671 8}
Dated: ______, 20__
HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF FRIDLEY, MINNESOTA
By: _____________________________________
Its: Chairperson
By: _____________________________________
Its: Executive Director
STATE OF MINNESOTA )
)ss
COUNTY OF ANOKA )
On this _____ day of _______________, 20__ before me, a Notary Public, personally
appeared _________________ and ___________ , to me personally known who by me duly
sworn, did say that they are the Chairperson and Executive Director, respectively, of the Housing
and Redevelopment Authority in and for the City of Fridley, Minnesota, a political subdivision
of the State of Minnesota, and acknowledged the foregoing instrument on behalf of said
Authority.
___________________________________
Notary Public
Authority Signature Page - Contract for Private Redevelopment
28
{00147671 8}
Dated: ___, 20__
U.S. HOME CORPORATION
By:
Name: Jonathan Aune
Its: Vice President – Minnesota Land Division
Date: ________________, 2018
and
By:
Name: ______________
Its: ________________
Date: ________________, 2018
STATE OF MINNESOTA )
)ss
COUNTY OF __________ )
On this _____ day of __________________, 20__, before me, a Notary Public,
personally appeared _________________________, the ______________ of U.S. Home
Corporation, a Delaware corporation, and acknowledged the foregoing instrument on behalf of
said corporation.
___________________________________
Notary Public
29
{00147671 8}
STATE OF ________________ )
)ss
COUNTY OF __________ )
On this _____ day of __________________, 20__, before me, a Notary Public,
personally appeared _________________________, the ______________ of U.S. Home
Corporation, a Delaware corporation, and acknowledged the foregoing instrument on behalf of
said corporation.
___________________________________
Notary Public
Redeveloper Signature Page - Contract for Private Redevelopment
30
{00147671 8}
SCHEDULE A
DESCRIPTION OF REDEVELOPMENT PROPERTY
\[Subject at all times to the approval of the preliminary plat by the Authority and less those
portions of the property to be set aside as a park outlot and less an outlot consisting of the
trailway adjacent to the ponding\]
31
{00147671 8}
SCHEDULE A-1
DEPICTION OF REDEVELOPMENT PROPERTY
(Phase 1 and Phase 2)
32
{00147671 8}
SCHEDULE B
FORM OF REDEVELOPMENT PROPERTY DEED
THIS INDENTURE, made this ___ day of ___________, 20__, between the Housing and
Redevelopment Authority in and for the City of Fridley, Minnesota, a political subdivision of the
State of Minnesota (the “Grantor”), and U.S. Home Corporation, a Delaware corporation (the
“Grantee”).
WITNESSETH
, that the Grantor, in consideration of the sum of One Dollar ($1.00) and
other good and valuable consideration, the receipt of which is hereby acknowledged, does hereby
convey and quit claim to the Grantee, its successors and assigns, forever, all the tract or parcel of
land lying and being in the County of Anoka and State of Minnesota described as follows:
See Exhibit 1 hereto
TOGETHER with all hereditaments and appurtenances belonging thereto, subject to all
conditions, covenants, restrictions and limitations imposed by (a) the Contract for Private
Redevelopment by and between the Housing and Redevelopment Authority in and for the City of
Fridley, Minnesota, and U.S. Home Corporation, a Delaware corporation, dated ______, 20__
(the “Contract”); and (b) all other matters of record.
The Grantor further states that:
The Grantee has committed to construct certain improvements pursuant to Sections 4.1
and 4.2(a) of the Contract and the Grantor has a right of re-entry in accordance with Section 7.6
of the Contract. Title is conveyed hereby subject to the following conditions subsequent: In the
event that the Grantee defaults on its obligations in Section 4.1 or Section 4.2(a) of the Contract
and fails to properly cure said default, the Grantor may declare a termination of all right, title and
interest conveyed herein and all right title and interest in the premises described in Exhibit 1
reverts to the Grantor. Upon the performance of Grantee’s obligations under Section 4.1 and
4.2(a) of the Contract, the release of the right of re-entry and reverter as to the premises
described in Exhibit 1 shall be evidenced by the recording of a Certificate of Completion and
Release of Forfeiture in the form attached as Exhibit 2 to this deed. Grantee shall not convey
any portion of the premises described in Exhibit 1 to a third party until and unless a Certificate of
Completion and Release of Forfeiture is recorded.
Check box if applicable:
Grantor certifies that Grantor does not know of any wells on the described real property.
A well disclosure certificate accompanies this document.
Grantor is familiar with the property described in this instrument and certifies that the
status and number of wells on the described real property have not changed since the last
previously filed well disclosure certificate.
33
{00147671 8}
IN WITNESS WHEREOF,
the Grantor has caused this Deed to be duly
executed in its behalf by its Chairperson and Executive Director as of the first date above
written.
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
FRIDLEY, MINNESOTA
By: _____________________________________
Its: Chairperson
By: _____________________________________
Its: Executive Director
STATE OF MINNESOTA )
)ss
COUNTY OF ANOKA )
On this _____ day of _______________, 20___ before me, a Notary Public, personally
appeared _______________ and _______________ to me personally known who by me duly
sworn, did say that they are the Chairperson and Executive Director, respectively, of the Housing
and Redevelopment Authority in and for the City of Fridley, Minnesota, a political subdivision
of the State of Minnesota, and acknowledged the foregoing instrument on behalf of said
Authority.
__________________________
Notary Public
This instrument was drafted by: Tax statements for the real property
described in this instrument should be
MONROE MOXNESS BERG PA (JRC) sent to:
7760 France Avenue South, Suite 700
Minneapolis, MN 55435-5844 ___________
(952) 885-5999 ___________
___________
34
{00147671 8}
SCHEDULE C
FORM OF CERTIFICATE OF COMPLETION AND RELEASE OF FORFEITURE
WHEREAS, the Housing and Redevelopment Authority in and for the City of Fridley,
Minnesota, a political subdivision of the State of Minnesota (the “Authority”) by a deed recorded
in the Office of the County Recorder or the Registrar of Titles in and for the County of Anoka,
State of Minnesota, on _______________, 20__ as Document Number
_______________________ (the “Deed”) has conveyed to U.S. Home Corporation, a Delaware
corporation (the “Redeveloper”) certain real property described as:
See attached Exhibit 1
WHEREAS, the Deed contained certain covenants and conditions, the breach of which
by the Redeveloper, its successors and assigns, would result in a forfeiture and right of re-entry
by the Authority, its successors and assigns, said covenants and restrictions being set forth in the
Deed; and
WHEREAS, the Redeveloper has performed said covenants and conditions with respect
to the land described on Exhibit 1 insofar as it is able and in a manner deemed sufficient by the
Authority to permit the execution and recording of this Certification;
NOW, THEREFORE, this is to certify that all building construction and other physical
improvements specified to be done and made by the Redeveloper have been completed and all of
the above covenants and conditions in the Deed have been performed by the Redeveloper therein
and that the provisions for forfeiture of title and right of re-entry for breach of condition
subsequent by the Authority therein are hereby released absolutely and forever insofar as they
apply to the land described herein, and the County of Anoka, State of Minnesota is hereby
authorized to accept for recording and to record this instrument, and the filing of this instrument
shall be a conclusive determination of the satisfactory termination of all of the covenants and
conditions of the Contract referred to in the Deed, the breach of which would result in a
forfeiture and right of re-entry.
Dated: __________________, 20___
HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF FRIDLEY, MINNESOTA
By _____________________________________
Its: Chairperson
By _____________________________________
Its: Executive Director
35
{00147671 8}
STATE OF MINNESOTA )
)ss
COUNTY OF ANOKA )
On this _____ day of _______________, 20___ before me, a Notary Public, personally
appeared ___________________ and ____________________ to me personally known who by
me duly sworn, did say that they are the Chairperson and Executive Director, respectively, of the
Housing and Redevelopment Authority in and for the City of Fridley, Minnesota, a political
subdivision of the State of Minnesota, and acknowledged the foregoing instrument on behalf of
said Authority.
___________________________________
Notary Public
This instrument was drafted by:
MONROE MOXNESS BERG PA (JRC)
7760 France Avenue South, Suite 700
Minneapolis, MN 55435-5844
(952) 885-5999
36
{00147671 8}
SCHEDULE D
PUBLIC IMPROVEMENTS
The Redeveloper shall construct the following Public Improvements:
Extension of sewer, water and stormwater utilities from the boundary of the Redevelopment
Property through each Phase acquired by Redeveloper, and, as to Public Improvements for Phase
1, such utilities are to be extended to the southeasterly boundary of Phase 1 as shown on the
approved Construction Plans.
37
{00147671 8}
SCHEDULE E
EXISTING ENVIRONMENTAL REPORTS
List of Braun Intertec Documents – City of Fridley Civic Center Redevelopment:
General Excavation Report Worksheet, Columbia Arena, 7011 University Avenue NE, Fridley,
Minnesota, January 12, 2007 Prepared for the National Sports Center Foundation
Environmental Assessment Former Columbia Arena, 7011 University Avenue Northeast,
Fridley, Minnesota, October 27, 2014
Response Action Plan, Former Columbia Ice Arena, 7011 University Avenue Northeast, Fridley,
Minnesota, March 19, 2015
st
Phase I Environmental Site Assessment, City of Fridley Redevelopment, 400 71 Avenue
Northeast, 6911 University Avenue NE, 7011 University Avenue NE, Fridley, Minnesota,
December 23, 2015
Response Action Plan Implementation Report, Former Columbia Ice Arena, 7011 University
Avenue Northeast, Fridley, Minnesota, January 4, 2016
Investigation Report Form, City of Fridley, 6431 University Avenue NE, January, 11, 2016
Environmental Investigation Report, City of Fridley Public Works facility/Fire Training Center,
st
400 71 Avenue Northeast, Fridley, Minnesota, April 22, 2016
Environmental Investigation Reports, City of Fridley Redevelopment, 6911 University Avenue
Northeast, Fridley, Minnesota, April 22, 2016
st
Geotechnical Evaluation Report, Proposed Mixed Development, 400 71 Avenue NE, 6911 and
7011 University Avenue NE, Fridley, Minnesota, September 12, 2016
Environmental Assessment, City of Fridley Civic Center Development, 400 71st Avenue
Northeast, 7011 University Avenue Northeast, Fridley, Minnesota, March 2, 2017
Response Action Plan – Revised, City of Fridley, Civic Center Development, Fridley,
Minnesota, VIC site ID VP31900, PBP Site ID PB4683, March 16, 2017
Non-Destructive Hazardous Building Materials Inspection Report, City of Fridley 400 – 71st
Avenue NE, Fridley, Minnesota, April 14, 2017
st
Phase I Environmental Site Assessment, City of Fridley Redevelopment, 400 71 Avenue
Northeast, 6911 University Avenue NE, 7011 University Avenue NE, Fridley, Minnesota, May
2, 2017
38
{00147671 8}
Geotechnical Evaluation Report, South Locke Park Pointe Road Alignment, 7011 University
Avenue NE, Fridley, Minnesota May 2, 2018
Asbestos Abatement Project Outline, City of Fridley, City of Fridley Public Works Facility, 400
71st Avenue NE, Fridley, Minnesota June 8, 2018
Environmental Investigation Report, Environmental Evaluation, South Locke Park Pointe Road
Alignment, 7011 University Avenue NE, Fridley, Minnesota, June 15, 2018
Post-Abatement Documentation and On-Site Air Monitoring Report, City of Fridley Public
Works Facility, 400 71st Avenue NE Fridley, Minnesota, August 30, 2018
Removal of Underground Storage Tanks, VIC Site ID VP31900, PBP Site ID PB4638, City of
Fridley Civic Center Development, 7011 University Avenue NE, Fridley, Minnesota, September
30, 2018
Pending:
Geotechnical/Environmental Investigation results, former Drainage Swale, Proposed
Redevelopment – Pending Receiving Laboratory data for PFAS samples, Final Geo will go out
next week.
List of Documents – Others – City of Fridley Civic Center Redevelopment
Asbestos & Regulated Water Assessment, Columbia Development, Carlson McCain November
23, 2010
Geotechnical Evaluation, Columbia Development, Carlson McCain, October 12, 2010
Phase I Investigation Columbia Arena, City of Fridley, Carlson McCain, July 18, 2014
Fridley Civic Center, Wetland Delineation Report, Wenck Associates, September 2016
39
{00147671 8}
SCHEDULE F
DECLARATION OF RESTRICTIVE COVENANTS AND PROHIBITION AGAINST TAX
EXEMPTION
This Declaration is made and executed as of the _____ day of _______, 20__ by
the Housing and Redevelopment Authority in and for the City of Fridley, Minnesota, a political
subdivision of the State of Minnesota (“Declarant”).
RECITALS
A. Declarant is fee owner of the premises located in the County of Anoka,
State of Minnesota described on Schedule A attached hereto (the “Property”).
B. The Property is in a tax increment financing district and the Declarant will
use the tax increment generated from improvements to the Property to reimburse itself for the
costs of acquiring and preparing the Property for redevelopment.
NOW, THEREFORE, in consideration of the foregoing, Declarant, for itself and
its successors and assigns, does hereby declare that the Property shall be owned, used, occupied,
sold and conveyed subject to the following covenants and restrictions:
1.No part of the Property shall become tax exempt from the levy of ad
valorem property taxes, or any statutorily authorized alternative, until December 31, 2045.
2.The covenants and restrictions herein contained shall run with the title to
the Property and shall be binding upon all present and future owners and occupants of the
Property; provided, however, that the covenants and restrictions herein contained shall inure only
to the benefit of the Authority and may be released or waived in whole or in part at any time, and
from time to time, by the sole act of the Authority, and variances may be granted to the
covenants and restrictions herein contained by the sole act of the Authority. These covenants
and restrictions shall be enforceable only by the Authority, and only the Authority shall have the
right to sue for and obtain an injunction, prohibitive or mandatory, to prevent the breach of the
covenants and restrictions herein contained, or to enforce the performance or observance thereof.
3.The covenants and restrictions herein contained shall remain in effect until
December 31, 2045 and thereafter shall be null and void.
4.If any one or more of the covenants or restrictions contained in this
Declaration are held to be invalid or enforceable, the same shall in no way affect any of the other
provisions of this Declaration, which shall remain in full force and effect.
40
{00147671 8}
HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF FRIDLEY, MINNESOTA
By: _____________________________________
Its: Chairperson
By: _____________________________________
Its: Executive Director
STATE OF MINNESOTA )
)ss
COUNTY OF ANOKA )
On this _____ day of _______________, 20__ before me, a Notary Public, personally
appeared _________________ and ___________ , to me personally known who by me duly
sworn, did say that they are the Chairperson and Executive Director, respectively, of the Housing
and Redevelopment Authority in and for the City of Fridley, Minnesota, a political subdivision
of the State of Minnesota, and acknowledged the foregoing instrument on behalf of said
Authority.
___________________________________
Notary Public
This Instrument Drafted By:
MONROE MOXNESS BERG PA (JRC)
7760 France Avenue South, Suite 700
Minneapolis, MN 55435-5844
(952) 885-5999
41
{00147671 8}
Exhibit A
to Declaration of Restrictive Covenants and Prohibition Against Tax Exemption
Legal Description
42
{00147671 8}
SCHEDULE G
PRELIMINARY PLANS
\[See attached 39 pages – Lennar Presentation dated July 30, 2018\]
4849-6493-8881, v. 2
43
{00147671 8}