HomeMy WebLinkAboutContract 1551 at ;
PURCHASE AND REDEVELOPMENT AGREEMENT
BY AND BETWEEN
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY
AND
BAN PROPERTIES, L.L.C.
This document was drafted by:
KENNEDY & GRAVEN, Chartered
470 Pillsbury Center
Minneapolis, MN 55402
SJB- 151864
CL205 -7
PURCHASE AND REDEVELOPMENT AGREEMENT
THIS AGREEMENT is made as of the day of October, 2000 by and among the
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY, a public body politic and
corporate under the laws of the State of Minnesota (the "Authority "), and BAN Properties, L.L.C.
• the "Developer ").
WITNESSETH:
WHEREAS, the Authority is in the process of purchasing from the State of Minnesota a
parcel of tax - forfeited land (the "Land ") located in the City of Columbia Heights, County of Anoka,
State of Minnesota, and legally described as:
Lot 9, Block 37, Columbia Heights Annex to Minneapolis.
The Land and all rights, privileges, easements, tenements, hereditaments, and appurtenances
belonging thereto, shall hereinafter be referred to as the "Property."
WHEREAS, the Authority deems it to be in the public interest to facilitate and encourage
redevelopment of the Property by private activity, and
WHEREAS, the Developer has proposed a development ( "Development ") within such
Property which the Authority believes will promote and carry out the objectives of the Authority,
will be in the vital best interests of the Authority, will promote the health, safety, morals, and
welfare of its residents and will be in accord with the public purposes and provisions of the
applicable state and local laws and requirements under which activities within the Authority have
been undertaken and are being assisted; and
WHEREAS, the Developer proposes to construct on the Property an approximate 4176 sq.
ft. office facility.
WHEREAS, the Developer is willing to purchase the Property and to develop the Property
for and in accordance with this Agreement; and
WHEREAS, the Authority desires to convey the Property to Developer and Developer is
desirous of purchasing the same.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained and other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant and agree as follows:
SJB- 151864
CL205 -7
AGREEMENT
1.0. Definitions. In this Agreement, unless a different meaning clearly appears from the
context:
(a) "Agreement" means this Agreement, as the same may be from time
to time modified, amended, or supplemented.
(b) "Authority" means the Columbia Heights Economic Development
Authority.
(c) "Certificate of Completion" means the certification provided to the
Developer, substantially in the form attached hereto as Exhibit A to this Agreement,
pursuant to Section 20 of this Agreement.
(d) "City" means the City of Columbia Heights, Minnesota.
(e) "Construction Plans" means the plans, specifications, drawings and
related documents on the construction work to be performed on the Property which
(a) shall be as detailed as the plans, specifications, drawings and related documents
which are submitted to the appropriate building officials of the Authority, and
(b) shall include at least the following: (1) foundation plan; (2) basement plans;
(3) floor plan for each floor; (4) cross sections of each (length and width); and
(5) elevations (all sides).
(f) "County" means the County of Anoka, Minnesota.
(g) "Developer" means BAN Properties, L.L.C., or its permitted
successors and assigns.
(h) "Event of Default" means an action by the Developer listed in
Section 17 of this Agreement.
(i) "Guaranty" means the unconditional guarantee of Bruce A.
Nedegaard, attached hereto as Exhibit B, given as a condition of this Agreement to
secure performance of the obligations herein.
(j) "Holder" means the owner of a Mortgage.
(k) "Minimum Improvements" means the construction of an
approximate 4176 sq. ft. office facility (plus partial basement).
(1) "Mortgage" means any mortgage made by the Developer which is
secured, in whole or in part, with the Property and which is a permitted encumbrance
pursuant to the provisions of this Agreement.
(m) "Parcel" means the real property so described as above as the
SJB- 151864v3 3
CL205 -7
Property.
(n) "Property" means the real property upon which the Minimum
Improvements will be constructed, a legal description of which is set forth in the first
"Whereas" clause of this Agreement. After construction of the Minimum
Improvements, the term means the Property as improved. The Property consists of
one Parcel.
(o) "State" means the State of Minnesota.
(p) "Termination Date" means the date on which the Developer receives
a Certificate of Completion pursuant to the terms and conditions of this Agreement.
(q) "Unavoidable Delays" means delays beyond the reasonable control
of the party seeking to be excused as a result thereof which are the direct result of
strikes, other labor troubles, prolonged adverse weather or acts of God, fire or other
casualty to the Minimum Improvements, litigation commenced by third parties
which, by injunction or other similar judicial action, directly results in delays, or acts
of any federal, state or local governmental unit (other than the City or Authority in
exercising their rights under this Agreement) which directly result in delays.
Unavoidable Delays shall not include delays in the Developer's obtaining of permits
or governmental approvals necessary to enable construction of the Minimum
Improvements by the dates such construction is required under Section 20 of this
Agreement.
2.0. Premises To Be Purchased. Subject to compliance with the terms and conditions of
this Agreement, Authority shall sell to Developer and Developer shall purchase from Authority the
Property.
3.0. Purchase Price. The purchase price ( "Purchase Price ") of the Property shall be
$11,829.45 payable in cash or certified check on the Date of Closing.
4.0. Title To Be Delivered. Authority agrees to convey to Developer marketable fee simple
title to the Property subject only to the encumbrances approved by Developer in accordance with
Section 5.2. Should Developer determine Authority's title to the Property to be unmarketable,
Developer may make objections to Authority's title in accordance with Section 5.2. Nothing
contained in this Agreement shall be construed as a covenant requiring Authority to obtain
marketable title to the Property if it is determined that Authority does not have marketable title.
5.0. Evidence Of Title.
5.1. Within fifteen (15) days after the Authority obtains title to the Property or such
other time period as may be specified in this Article, Authority shall at the discretion of the
Authority:
(a) Cause to be delivered to the Developer at the cost of Developer, an
Abstract of Title for the Property (or a Registered Property Abstract if title to the
SJB- I51864v3 4
CL205 -7
Property is registered) certified to date to include proper searches covering
bankruptcies, tax liens and state and federal court judgments and liens; or
(b) Cause to be issued and delivered to Developer, at the cost of
Developer, an ALTA Form 1970 commitment for an Owner's title insurance policy
(the "Commitment ") issued by the Title Insurer pursuant to which the Title Insurer
agrees to issue to the Developer upon the recording of the documents of conveyance
referred to herein an ALTA Form 1970 Owner's title insurance policy in the full
amount of the Purchase Price, with standard exceptions for matters of survey, parties
in possession (other than tenants under current written leases) and unfiled
mechanic's or materialmen's liens deleted. The Commitment shall include proper
searches covering bankruptcies, state and federal judgments and liens and levied and
pending special assessments and shall be accompanied by copies of all recorded
documents presently affecting the Property.
5.2. Developer shall have fifteen (15) business days after receipt of all the title
evidence discussed in Sections 5.1 above to render objections to title in writing to Authority
and Authority shall have the greater of (i) the number of days remaining until the Date of
Closing or (ii) thirty (30) days to have such objections removed or satisfied. If Authority
shall fail to have such objections removed within said time, the Developer may, at its sole
election: (a) terminate this Agreement without any liability on its part; or (b) take title to the
Property subject to such objections. Notwithstanding anything to the contrary herein, the
fact that the Authority's title to the Property is through a State tax deed shall not be grounds
for objection by Developer under this Section.
6.0. Control of Property. Until the Date of Closing, Authority shall have the full
responsibility and the entire liability for any and all damages or injuries of any kind whatsoever to
the Property, to any and all persons, whether employees or otherwise, and to any other property
from and connected to the Property, except liability arising from the acts, omissions, intentional
torts or negligence of Developer, its agents or employees. If, prior to the Date of Closing, all or a
material portion of the Property shall be the subject of an action in eminent domain or a proposed
taking by a governmental authority (other than the City), whether temporary or permanent,
Developer, at its sole election, shall have the right to terminate this Agreement without liability on
its part, by so notifying Authority in writing and all sums heretofore paid to Authority shall then be
promptly refunded to Developer in exchange for a quit claim deed for the Property. At its option,
Developer may proceed to closing and in such event, the Authority shall either assign to Developer
all rights to recover any awards for such action in eminent domain or proposed taking or pay to
Developer any such awards or any proceeds already received.
7.0. Representations by the Authority and Developer. The Authority and the Developer
make the following representations as the basis for the undertaking on their part herein contained:
7.1. Representations of Authority. As an essential part of this Agreement and in
order to induce Developer to enter into this Agreement and purchase the Property, Authority
hereby represents and warrants to Developer:
(a) The Authority has the power to enter into this Agreement and carry
out its obligations hereunder.
SJB- I51864v3 5
CL205 -7
(b) The Authority does not know of any "wells" (within the meaning of
Minnesota Statutes, Section 103I.005, Subd. 21) on the Property. This representation
is intended to satisfy the requirements of Minnesota Statutes, Section 103I.235,
Subd. 1(a). If wells are found to be on the Property prior to the Date of Closing,
Authority shall promptly notify Developer of the presence of such wells.
(c) The Authority discloses that there is not an individual sewage
treatment system serving the Property.
7.2. Representations and Warranties by the Developer. The Developer represents
and warrants that:
(a) The Developer has received no notice or communication from any
local, State, or federal official that the activities of the Developer or the Authority on
the Property may be or will be in violation of any environmental law or regulation
(other than those notices or communications of which the Authority is aware). The
Developer is aware of no facts the existence of which would cause it to be in
violation of or give any person a valid claim under any local, State, or federal
environmental law, regulation, or review procedure.
(b) Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement is prevented, limited
by, or conflicts with or results in a breach of the terms, conditions, or provisions of
any corporate or partnership restriction or any evidences of indebtedness, agreement,
or instrument of whatever nature to which the Developer is now a party or by which
it is bound, or constitutes a default under any of the foregoing.
(c) The Developer will construct, operate and maintain the Minimum
Improvements in accordance with the terms of this Agreement and all local, state
and federal laws and regulations (including, but not limited to, environmental,
zoning, building code and public health laws and regulations).
7.3. The representations and warranties set forth in this section shall be continuing
and shall be true and correct as of the Date of Closing with the same force and effect as if
made at that time. All such representations and warranties shall survive closing and shall
not be merged in the delivery and execution of the deed or other instruments of conveyance
called for in this Agreement.
7.4. Except for the representations and warranties of Authority expressly made
herein, Developer is buying the Property on an "as is," "where is," and "with all faults"
basis, based upon its own investigation and judgment.
8.0. Review of Documents; Inspection.
(a) Concurrently with execution of this Agreement or within ten days following
the date hereof, and to the extent such documents are available to Authority, Authority shall
SJB- 151864v3 6
CL205 -7
deliver to Developer the following documents: existing (i) reports (whether in draft or final
form) of any environmental inspections, audits or examinations of the Property; (ii) reports
of all engineering tests, inspections and studies of the Property and (iii) reports of soil tests
of the Property; all as Authority may have or be able to obtain copies of without
unreasonable expense (all such records, plans, permits and reports being hereafter referred to
as the "Existing Tests ").
(b) Any time and from time to time prior to the Date of Closing, Developer, and
person or persons selected by Developer shall be permitted access to the Property for the
purpose of conducting such studies and investigations of the Property as Developer deems
appropriate, which studies and investigations shall be conducted at Developer's sole expense
and pursuant to any other terms and conditions of this Agreement. Developer agrees to
indemnify Authority against any liability, cost or expense incurred by Authority as a result
of Developer's actions, including but not limited to fines, court costs, reasonable attorneys'
fees and remedial costs.
9.0. Conditions to Closing. The closing of the transaction contemplated by this Agreement
and the obligation of the Authority to sell the Property and of the Developer to purchase the same
shall be subject to the following conditions:
9.1. Authority Responsibilities:
(a) Provide an updated abstract of title commitment, at the cost of
Developer, for the Property;
(b) Provide confirmation that sewer and water service is available to the
Property.
(c) Hold a public hearing and approve conveyance of the Property in
accordance with law.
(d) Obtain a tax deed to the Property from the State.
9.2. Developer's Responsibilities:
(a) Title: Developer may review and approve preliminary title reports
and surveys in accordance with this Agreement.
(b) Developer shall indemnify Authority against any liability, cost or
expense incurred by Authority as a result of Developer's actions, including but not
limited to fines, court costs, reasonable attorneys' fees and remedial costs. Authority
shall provide Developer and Developer's agents and representatives access to the
Property, at reasonable times and in a reasonable manner, for purposes of
completing such Investigation/Due Diligence Period requirements. Authority shall
cooperate with the Developer's investigation of the Property, including Developer's
ability to interview, at reasonable times and in a reasonable manner, Authority or
any of Authority's employees or to take samples of any soil, ground water or other
materials provided the same does not unreasonably interfere with Authority's
SJB- 151864v3 7
CL205 -7
operations.
(c) Developer must provide adequate evidence of financing for the
purchase and construction of the Minimum Improvements on the Property.
(d) Developer must submit, and Authority must have approved,
Construction Plans in accordance with Section 20 hereto.
(e) Developer must obtain and submit a Guaranty.
9.3. With respect to the above - described conditions, Developer shall give notice of
its desire to terminate this Agreement for failure to fulfill any of said conditions on or before
the Date of Closing or such earlier date as may be specified above. In the event no notice of
termination is given within the specified time period with respect to any such section hereof,
such condition shall be deemed to be waived by Developer and Developer shall proceed to
closing in accordance with the other terms and conditions hereof.
10.0. Closing. The closing shall take place on October 18, 2000 (the "Date of Closing ") or
on such earlier date as Authority and Developer may mutually agree in writing. The closing shall
take place at the office of Title Insurer or such other place as the Authority and Developer may
reasonably determine. Possession of the Property shall be delivered on the Date of Closing.
11.0. Authority's Obligations at Closing. On or prior to the Date of Closing, Authority
shall:
11.1. Execute, acknowledge and deliver to the Developer a quit claim deed, with a
right of reverter, to the Property conveying to the Developer marketable fee simple title to
the Property, subject to the limitations contained in Sections 4.0 and 5.2 hereof, and all
rights appurtenant thereto subject only to the encumbrances approved by Developer in
accordance with Section 5.2.
11.2. Deliver to Developer an affidavit of the Authority in recordable form
identifying the Authority as the owner of the Property free and clear of all encumbrances
except the encumbrances approved by Developer in accordance with Section 5.3, that all
work, labor, services and materials furnished to or in connection with the Property have
been fully paid for so that no mechanic's, materialmen's, or similar lien may be filed against
the Property.
11.3. In the event the quit claim deed described in Section 11.1 does not contain
the statement "The Seller certifies that the Seller does not know of any wells on the
described real property ", Authority shall execute and deliver to Developer a Well Disclosure
Certificate as required in Minnesota Statutes, Section 103I.235 indicating that all wells have
been properly abandoned and sealed by a licensed well contractor, all as required by the
rules and regulations issued to Minnesota Statutes, Section 103I.501(a)(2).
11.4. Deliver to Developer such other documents as may be required by this
Agreement or applicable law.
SJB- 151864v3 8
CL205 -7
11.5. Deliver to Developer evidence of Authority's authorization to complete this
transaction.
11.6. Execute and deliver to Developer a closing statement consistent with this
Agreement.
12.0. Developer's Obligations at Closing. At closing, and subject to the terms, conditions,
and provisions hereof and the performance by Authority of its obligations as set forth above, the
Developer shall:
12.1. Deliver to Authority the Purchase Price payable by Developer's certified or
cashier's check or equivalent.
12.2. Execute, and/or deliver to Authority such other documents as may be required
by this Agreement or applicable law.
12.3. Execute and deliver to Authority a closing statement consistent with this
Agreement.
13.0. Closing Costs. The following costs and expenses shall be paid as follows in
connection with the closing:
13.1. Developer shall pay the following costs in connection with the closing.
(a) All abstracting expenses, the cost of issuing the title commitment and
the cost of copies of all additional title documents necessary for the examination of
title.
(b) The title insurance premium charged by the Title Insurer.
(c) The cost of preparation of the quit claim deed and other documents
of conveyance.
(d) Any filing fee to record the quit claim deed and related documents.
(e) State Deed Tax upon delivery of the quit claim deed to the
Developer.
(f) Authority's attorneys' fees in connection with acquisition of the
Property by the Authority and conveyance to the Developer.
(g) Developer's attorneys' fees.
SJB- 151864v3 9
CL205 -7
•
14.0. Prorations. The following prorations shall be made as of the Date of Closing and
subsequent to the Date of Closing to the extent actual information is unavailable on the Date of
Closing:
14.1. All utilities furnished to the Property.
14.2. Real estate taxes and special assessments as hereinafter provided.
15.0. Taxes and Special Assessments. Authority shall pay the real estate taxes and special
assessments relating to the Property which are due and payable in all years prior to the year of
closing, and any and all deferred real estate taxes and all levied and pending special assessments at
the closing of the sale. The parties agree and understand that, as of the date of this Agreement, there
are no outstanding deferred real estate taxes or levied or pending special assessments, and that the
Property is exempt from real estate taxes for payable year 2000.
16.0. Brokerage. Developer and Authority each represent and warrant to the other that they
have not engaged the services of any broker in connection with the purchase contemplated by this
Agreement. Each party hereby agrees to indemnify and hold the other harmless of any claim made
by a broker or sales agent or similar party for a commission due or alleged to be due on this
transaction.
17.0 Default. The following default provisions govern this Agreement.
17.1. Events of Default Defined. The following shall be "Events of Default" under
this Agreement and the term "Event of Default" shall mean, whenever it is used in this
Agreement (unless the context otherwise provides), any failure by any party to observe or
perform any other covenant, condition, obligation or agreement on its part to be observed or
performed hereunder, but only if such failure has not been cured within thirty days after
receipt by the defaulting party of written notice of such failure or, if the failure is by its
nature incurable within thirty days, the defaulting party does not provide assurances
reasonably satisfactory to the non - defaulting party within such thirty -day period that the
failure will be cured and will be cured as soon as reasonably possible. Subject to the
foregoing notice and cure periods, nothing in this Section shall limit the Authority's right to
exercise any remedy to which it is entitled under any other provision of this Agreement.
17.2. Remedies on Default. Whenever any Event of Default referred to in
Paragraph 17.1 of this Agreement occurs, the non - defaulting party may:
(a) Suspend its performance under this Agreement until it receives
assurances that the defaulting party will cure its default and continue its performance
under this Agreement.
(b) Cancel and rescind or terminate this Agreement in accordance with
applicable law.
(c) In the case of an Event of Default by the Developer, the Authority
may demand reimbursement by the Developer to the Authority in the amount of any
costs paid by the Authority pursuant to this Agreement.
SJB- 151864v3 10
CL205 -7
(d) Take whatever action, including legal, equitable, or administrative
action, which may appear necessary or desirable to collect any payments due under
this Agreement, or to enforce performance and observance of any obligation,
agreement, or covenant under this Agreement.
(e) Enforce the specific performance of this Agreement, which action
must be commenced within one (1) year of the date of failure of a party to
consummate the transactions contemplated herein.
17.3. Revesting Title in Authority Upon Happening of Event Subsequent to
Conveyance to Developer. In the event that, subsequent to conveyance of the Property to
the Developer and prior to the issuance of the Certificate of Completion:
(a) subject to Unavoidable Delays, the Developer fails to carry out its
obligations with respect to the construction of the Minimum Improvements
(including the nature and the date for the completion thereof), or abandons or
substantially suspends construction work, and any such failure, abandonment, or
suspension shall not be cured, ended, or remedied within thirty (30) days after
written demand from the Authority to the Developer to do so; or
(b) subject to Unavoidable Delays the Developer fails to cure any default
under this Agreement within 30 days after receipt of notice of Event of Default.
Then the Authority shall have the right to re -enter and take possession of the
Property and to terminate and revest in the Authority the estate conveyed pursuant to
the Deed to the Developer, it being the intent of this provision, together with other
provisions of the Agreement, that the conveyance of the Property to the Developer
shall be made upon, and that any instrument conveying title from the Authority to
the Developer of the Property shall contain a condition subsequent to the effect that
in the event of any default on the part of the Developer and failure on the part of the
Developer to remedy, end, or abrogate 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 of all the rights and interests in
and to the Property conveyed to the Developer, and that such title and all rights and
interests of the Developer, and any assigns or successors in interest to and in the
Property, shall revert to the Authority.
17.4. Resale of Reacquired Property; Disposition of Proceeds. Upon the revesting
in the Authority of title to and/or possession of the Property as provided in Section 17.3, the
Authority shall, pursuant to its responsibilities under law, use its best efforts to sell the
Property or part thereof as soon and in such manner as the Authority shall find feasible and
consistent with the objectives of such law and of the Development Plan to a qualified and
responsible party or parties (as determined by the Authority) who will assume the obligation
of making or completing the Minimum Improvements or such other improvements in their
stead as shall be satisfactory to the Authority and in accordance with the uses specified for
the Property. Upon such resale of the Property, the proceeds thereof shall be applied:
SJB- 151864v3 11
CL205 -7
(a) First, to reimburse the Authority for all costs and expenses incurred
by the Authority, including but not limited to salaries of personnel, in connection
with the recapture, management, and resale of the Property or part thereof (but less
any income derived by the Authority from the property or part thereof in connection
with such management); all taxes, assessments, and water and sewer charges with
respect to the Property (or, in the event the Property is exempt from taxation or
assessment or such charge during the period of ownership thereof by the Authority,
an amount, if paid, equal to such taxes, assessments, or charges (as determined by
the Authority assessing official) as would have been payable if the Property were not
so exempt); any payments made or necessary to be made to discharge any
encumbrances or liens existing on the Property or part thereof at the time of
revesting of title thereto in the Authority or to discharge or prevent from attaching or
being made any subsequent encumbrances or liens due to obligations, defaults or
acts of the Developer, its successors or transferees; any expenditures made or
obligations incurred with respect to the making or completion of the Minimum
Improvements or any part thereof on the Property; financial assistance made by the
Authority to the Developer (less any portion thereof previously repaid by the
Developer); and any amounts otherwise owing the Authority by the Developer and
its successor or transferee; and
(b) Any balance remaining after such reimbursements shall be returned
to the Developer.
17.5. No Remedy Exclusive. No remedy herein conferred upon or reserved to the
any party in this Agreement is intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Agreement or now or hereafter existing at law or in
equity or by statute. No delay or omission to exercise any right or power accruing upon any
default shall impair any such right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often as may be
deemed expedient. In order to entitle the Authority to exercise any remedy reserved to it, it
shall not be necessary to give notice, other than such notice as may be required in this
Section.
17.6. No Additional Waiver Implied by One Waiver. In the event any agreement
contained in this Agreement should be breached by any party and thereafter waived by
another 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.
18.0. [Intentionally Omitted]
SJB- 151864v3 12
CL205 -7
19.0. Miscellaneous. The following general provisions govern this Agreement.
19.1. Time is of the Essence. The Date of Closing is of the absolute essence. In the
event this transaction does not close on the Date of Closing because the Authority is unable
to perform as required by this Agreement, the Agreement shall be null and void. In the
event this transaction does not close on the Date of Closing because the Developer is unable
to perform as required by this Agreement, this Agreement shall be null and void and all
Earnest Money shall be delivered to the Authority as liquidated damages.
19.2. Governing Law. This Agreement is made and executed under and in all
respects is to be governed and construed under the laws of the State of Minnesota.
19.3. Notices and Demands. Except as otherwise expressly provided in this
Agreement, a notice, demand, or other communication under this Agreement by either party
to the other shall be sufficiently given or delivered if it is dispatched by registered or
certified mail, postage prepaid, return receipt requested, or delivered personally to the
parties as follows:
Authority: Columbia Heights Economic Development Authority
590 40 Avenue Northeast
Columbia Heights, MN 55421
Developer: 1814 Northdale Boulevard
Coon Rapids, MN 55448
or at such other address with respect to either such party as that party may, from time to
time, designate in writing and forward to the other as provided in this Section.
19.4. Construction. The captions and headings of the various sections of this
Agreement are for convenience only and are not to be construed as defining or as limiting in
any way the scope or intent of the provisions hereof Wherever the context requires or
permits, the singular shall include the plural, the plural shall include singular, and the,
masculine, feminine and neuter shall be freely interchangeable.
19.5. Assignability. This Agreement and the rights set out herein may not be
assigned by Developer without prior written approval by the Authority. Upon death of the
Developer prior to the Date of Closing, this Agreement shall be deemed terminated and the
Developer's estate shall bear no rights or obligations hereunder.
19.6. Entire Agreement. This Agreement sets forth the entire understanding of the
parties and may be amended, modified or terminated only by an instrument signed by the
parties.
19.7. Counterparts. For the convenience of the parties, any number of counterparts
hereof may be executed and each such executed counterpart shall be deemed an original, but
all such counterparts together shall constitute one in the same Agreement.
19.8. Binding Effect. This Agreement (including without limitation, the
SJB- 151864v3 13
CL205 -7
representations and warranties set forth in Section 7 hereof) shall inure to the benefit of and
bind the respective heirs, executors, administrators and assigns of Developer and Authority,
including without limitation any successor in interest to either Developer or Authority with
respect to this Agreement or the Property or both.
19.9. Conflict of Interests; Authority Representatives Not Individually Liable The
Authority and the Developer, to the best of their respective knowledge, represent and agree
that no member, official, or employee of the Authority shall have any personal interest,
direct or indirect, in this Agreement, nor shall any such member, official, or employee
participate in any decision relating to this Agreement which affects his or her personal
interests or the interests of any corporation, partnership, or association in which he or she is
directly or indirectly interested. No member, official, or employee of the Authority shall be
personally liable to the Developer, or any successor in interest, in the event of any default or
breach by the Authority, or for any amount which may become due to the Developer or
successor or on any obligations under the terms of this Agreement.
19.10. Equal Employment Opportunity. The Developer, for itself and its successors
and assigns, agrees that during the construction of the Minimum Improvements provided for
in this Agreement it will comply with all applicable federal, State, and local equal
employment and non - discrimination laws and regulations.
19.11. Restrictions on Use. The Developer agrees that prior to the Termination
Date, the Developer, and its successors and assigns: (a) shall not discriminate upon the basis
of race, color, creed, sex, national origin, or any other classification prohibited by law in the
sale, lease, rental, or use or occupancy of the Property or any improvements erected or to be
erected thereon, or any part thereof; and (b) shall otherwise comply with the restrictions on
use set forth in this Agreement.
19.12. Provisions Not Merged With Deeds. None of the provisions of this
Agreement are intended to or shall be merged by reason of any deed transferring any interest
in the Property and any such deed shall not be deemed to affect or impair the provisions and
covenants of this Agreement.
19.13. Recording. The Authority may record this Agreement and any amendments
thereto with the Anoka County recorder. The Developer shall pay all costs for recording.
19.14. Attorney Fees. Whenever any Event of Default occurs and if the Authority
shall employ attorneys or incur other expenses for the collection of payments due or to
become due, or for the enforcement of performance or observance of any obligation or
agreement on the part of the Developer under this Agreement, the Developer agrees that it
shall, within ten days of written demand by the Authority, pay to the Authority the
reasonable fees of such attorneys and such other expenses so incurred by the Authority.
20.0 Construction of Minimum Improvements.
20.1. Construction of Minimum Improvements. (a) The Developer agrees that it
will construct the Minimum Improvements on the Property in accordance with the approved
Construction Plans, and at all times prior to the Termination Date will operate and maintain,
SJB- 151864v3 14
CL205 -7
preserve, and keep the Minimum Improvements, or cause the Minimum Improvements to be
maintained, preserved, and kept, with the appurtenances and every part and parcel thereof,
in good repair and condition. The Authority shall not have any obligation to operate or
maintain the Minimum Improvements.
(b) The Developer will construct the Minimum Improvements in accordance
with all local, State, and federal energy- conservation laws or regulations.
(c) The Developer will obtain, in a timely manner, all required permits, licenses,
and approvals, and will meet, in a timely manner, all requirements of all applicable local,
State, and federal laws and regulations which must be obtained or met before the Minimum
Improvements may be lawfully constructed, including, without limitation, the requirements
of any necessary special use permits.
(d) The Developer shall promptly advise the Authority in writing of all litigation
or claims affecting any part of the Minimum Improvements and all written complaints and
charges made by any governmental authority materially affecting the Minim=
Improvements or materially affecting Developer or its business which may delay or require
changes in construction of the Minimum Improvements.
20.2. Construction Plans. (a) Before conveyance of the Property, the Developer
shall submit to the Authority Construction Plans. The Construction Plans shall provide for
the construction of the Minimum Improvements, as applicable, and shall be in conformity
with this Agreement and all applicable State and local laws and regulations. The Authority
will approve the Construction Plans in writing if: (i) the Construction Plans conform to the
terms and conditions of this Agreement; (ii) the Construction Plans conform to all applicable
federal, State and local laws, ordinances, rules and regulations; (iii) the Construction Plans
are adequate to provide for construction of the Minimum Improvements; and (iv) no Event
of Default has occurred. Approval may be based upon a review by the City's building
official of the Construction Plans. No approval by the Authority or City shall relieve the
Developer of the obligation to comply with the terms of this Agreement, 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 an Event of Default. If approval of the Construction Plans is requested by the
Developer in writing at the time of submission, such Construction Plans shall be deemed
approved unless rejected in writing by the Authority, in whole or in part. Such rejections
shall set forth in detail the reasons therefore, and shall be made within 30 days after the date
of their receipt by the Authority. If the Authority rejects any Construction Plans in whole or
in part, the Developer shall submit new or corrected Construction Plans within 30 days after
written notification to the Developer of the rejection. The provisions of this Section 20.2
relating to approval, rejection and resubmission of corrected Construction Plans shall
continue to apply until the Construction Plans have been approved by the Authority. The
Authority's approval shall not be unreasonably withheld. Said approval shall constitute a
conclusive determination that the Construction Plans (and the Minimum Improvements
constructed in accordance with said plans) comply to the Authority's satisfaction with the
provisions of this Agreement relating thereto.
(b) If the Developer desires to make any material change in the Construction
SJB- 151864v3 15
CL205 -7
•
Plans after their approval by the Authority, the Developer shall submit the proposed change
to the Authority for its approval. If the Construction Plans, as modified by the proposed
change, conform to the requirements of this Section 20.2 of this Agreement with respect to
such previously approved Construction Plans, the Authority shall approve the proposed
change and notify the Developer in writing of its approval. Such change in the Construction
Plans shall, in any event, be deemed approved by the Authority unless rejected, in whole or
in part, by written notice by the Authority to the Developer, setting forth in detail the
reasons therefor. Such rejection shall be made within ten (10) days after receipt of the
notice of such change. The Authority's approval of any such change in the Construction
Plans will not be unreasonably withheld.
(c) The terms of this Section 20.2 shall apply only to the Construction Plans as
herein defined. Any site plan approval, variances, and any other City permit or approval
required for construction of the Minimum Improvements shall be applied for and processed
in accordance with normal City procedures.
20.3. Commencement and Completion of Construction. Subject to Unavoidable
Delays, the Developer shall commence construction of the Minimum Improvements within
60 days after the Date of Closing under Section 10. Subject to Unavoidable Delays, the
Developer shall substantially complete the construction of the Minimum Improvements
within six (6) months of the date of Closing. All work with respect to the Minimum
Improvements to be constructed or provided by the Developer on the Property shall be in
conformity with the Construction Plans as submitted by the Developer and approved by the
Authority.
The Developer agrees for itself; its successors and assigns, and every successor in
interest to the Property, or any part thereof, that the Developer, and such successors and
assigns, shall promptly begin and diligently prosecute to completion the development of the
Property through the construction of the Minimum Improvements thereon, and that such
construction shall in any event be commenced and completed within the period specified in
this Section 20.3 of this Agreement. Subsequent to the Developer's acquisition of title to the
Property, or any part thereof, and until construction of the Minimum Improvements has
been completed, the Developer shall make reports, in such detail and at such times as may
reasonably be requested by the Authority, as to the actual progress of the Developer with
respect to such construction.
20.4. Certificate of Completion. (a) Promptly after substantial completion of the
Minimum Improvements in accordance with those provisions of this Agreement relating
solely to the obligations of the Developer to construct the Minimum Improvements
(including the dates for beginning and completion thereof), the Authority will furnish the
Developer with a Certificate of Completion substantially in the form shown at Exhibit B.
Such certification by the Authority shall be a conclusive determination of satisfaction and
termination of the agreements and covenants in this Agreement with respect to the
obligations of the Developer, and its successors and assigns, to construct the Minimum
Improvements, as applicable, and the dates for the beginning and completion thereof. Such
certification and such determination shall not constitute evidence of compliance with or
satisfaction of any obligation of the Developer to any Holder of a Mortgage, or any insurer
of a Mortgage, securing money loaned to finance the Minimum Improvements, or any part
SJB- 151864v3 16
CL205 -7
•
thereof.
(b) If the Authority shall refuse or fail to provide any certification in accordance
with the provisions of this Section 20.4 of this Agreement, the Authority shall, within thirty
(30) days after written request by the Developer, provide the Developer with a written
statement, indicating in adequate detail in what respects the Developer has failed to
complete the Minimum Improvements in accordance with the provisions of this Agreement,
or is otherwise in default, and what measures or acts it will be necessary, in the opinion of
the Authority, for the Developer to take or perform in order to obtain such certification.
(c) The construction of the Minimum Improvements shall be deemed to be
substantially completed when the Minimum Improvements have been approved for use by
the responsible inspecting authority.
20.5. Reconstruction of Minimum Improvements. If the Minimum Improvements
are damaged or destroyed before the Termination Date, the Developer agrees, for itself and
its successors and assigns, to reconstruct the Minimum Improvements substantially in
accordance with the Construction Plans, or with modifications approved by the Authority in
accordance with Section 20.2 of this Agreement.
20.6. Property Taxes; Special Assessments. After closing on the Property, the
Developer shall pay all real estate taxes and special assessments on the Minimum
Improvements and the Property as they become due. The Developer shall not cause the
Property to be removed from the public tax rolls or to become exempt from assessment for
general real estate taxes by reason of any conveyance, lease, abatement, or other action prior
to the Termination Date.
20.7. Survival of Agreement. The terms of this Section 20 shall survive closing.
S]B- 151864v3 17
CL205 -7
The parties hereto have executed this Agreement as of the day and year first above written.
• 'ROPERTIES, L.L.C.
1111' 1
By nice A. Nedegaard
Its President and Treas . rer
By Claudia Nedegaard
Its Secretary
STATE OF MINNESOTA )
) ss
COUNTY OF ANOKA )
The foregoing instrument was acknowledged before me this /7Z day of
Qc f v ,6-e r , 2000 by Bruce A. Nedegaard and Claudia Nedegaard, the President/Treasurer
and Secretary respectively, of BAN Properties, L.L.C., a Minnesota Limited Liability Company.
Notary Public
• n .
'° ` JANE ANN GLEASON
NOTARY PUBLIC - MINNESOTA
.3 = COLUMBIA HEIGHTS ECONOMIC
.�i � " My Comm. Exp. Jan. 31, 2005 ` DEVEL • ' MENT AUT ORITY
.. ..�• :... ............ ., .,. � /
By _
Its President
By a/% / J
Its Execut e Director
STATE OF MINNESOTA )
) ss
COUNTY OF ANOKA )
The foregoing instrument was acknowledged before me this /' day ofQc fD/€ e
2000, by je&tfiti, /'u81 nr¢xN and ZA.1 / /er /j ` -I T , the President and Executive
Director respectively, of the Columbia Heights Economic Development Authority, a public body
corporate and politic, under the laws of the State of Minnesota on behalf of the public body
corporate and •olitic.
v a s JANE ANN GLEASON
NOTARY PUBLIC - MINNESOTA
My Comm. Exp. Jan. 31, 2005 Notary Public
ifOANINVANIAMPAWMO 18
CL205 -7
Randy •Schumacher - #151864 v5 - purchase & redevelopment agrmt Nedegaard doc Page 20
EXHIBIT A
to
PURCHASE AND REDEVELOPMENT AGREEMENT
FORM OF CERTIFICATE OF COMPLETION
The undersigned certifies that, except as may be specified below, has
fully and completely complied with its obligations under Paragraph 20 of that document
entitled "Purchase and Redevelopment Agreement ", dated between the
Columbia Heights Economic Development Authority and BAN Properties, L.L.C. with
respect to construction of the Minimum Improvements on the Property legally described
therein, in accordance with the approved Construction Plans and is released and forever
discharged from its obligations to construct under such above - referenced Paragraph.
Dated: COLUMBIA HEIGHTS ECONOMIC
DEVELOPMENT AUTHORITY
By:
President
By:
Its Executive Director
STATE OF MINNESOTA )
ss
COUNTY OF ANOKA )
The foregoing instrument was acknowledged before me this day of
2001, by and , the President and Executive
Director respectively, of the Columbia Heights Economic Development Authority, a public body
corporate and politic, under the laws of the State of Minnesota on behalf of the public body
corporate and politic.
Notary Public
This document drafted by:
KENNEDY & GRAVEN, CHARTERED (SIB)
470 Pillsbury Center
200 South Sixth Street
Minneapolis, MN 55402
(612) 337 -9300
SJB- 151864v#
CL205 -7
A -20
_ _ I
EXHIBIT B
to
PURCHASE AND REDEVELOPMENT AGREEMENT
GUARANTY AGREEMENT
This Guaranty Agreement ( "Guaranty ") is made and entered into this _ day of October,
2000, by Bruce A. Nedegaard ( "Guarantor ") for the benefit of the Columbia Heights Economic
Development Authority (the "Authority").
WITNESSETH:
WHEREAS, BAN Properties, L.L.C. ( "Developer ") proposes to purchase certain real
property from the Authority subject to a Purchase and Redevelopment Agreement dated October _,
2000 ( "Redevelopment Agreement "); and
WHEREAS, the Authority requires the Guarantor to guarantee the performance of the
obligations pursuant to the Redevelopment Agreement as a condition of said transaction; and
WHEREAS, the Guarantor, as one of Developer's principles, will receive a direct financial
benefit from the transaction contemplated by the Redevelopment Agreement.
NOW, THEREFORE, to induce the Authority to sell the property, the Guarantor hereby
covenants and agrees with the Authority as follows:
Section 1.1. The Guarantor hereby unconditionally guarantees to the Authority: (a) the full
and prompt payment of amounts due pursuant to the Redevelopment Agreement; and (b) the timely
performance by Developer of all its obligations under the Redevelopment Agreement. Each and
every default under the Redevelopment Agreement shall give rise to a separate cause of action
hereunder, and separate suits may be brought hereunder as each cause of action arises.
Section 1.2. The obligations of the Guarantor under this Guaranty shall be absolute and
unconditional and shall remain in full force and effect until all obligations under the Redevelopment
Agreement are paid and/or performed and such obligations shall not be affected, modified or
impaired upon the happening from time to time of any event, including, without limitation, any of
the following:
a. The compromise, settlement, or release of obligations, covenants or
agreements under the Redevelopment Agreement;
b. The failure to give notice of the occurrence of an event of default under the
terms of this Guaranty or the Redevelopment Agreement;
c. The extension of the time for performance under this Guaranty or the
Redevelopment Agreement;
SJB- 151864v14
CL205 -7
A -2
d. Any failure, omission, or delay on the part of the Authority to enforce, assert
or exercise any right, power or remedy conferred on the Authority in this Guaranty or the
Redevelopment Agreement.
Section 1.3. No set -off, counterclaim, or diminution of any obligation, or any defense of
any kind or nature which the Guarantor now has against the Authority shall be available hereunder
to the Guarantor against the Authority. The Guarantor hereby expressly waives notice from the
Authority of acceptance and reliance upon this Guaranty.
Section 1.4. The Guarantor agrees to pay all the costs, expenses and fees, including
attorneys' fees, which may be incurred by the Authority in enforcing or attempting to enforce this
Guaranty whether the same shall be enforced by suit or otherwise.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed as of the
date first above written.
GUARANTOR
•:'. A.NEDERGAARD
......... k 4
S1B- 151864v#
CL205 -7
A -3