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HomeMy WebLinkAboutContract 1572 °1572 NEI DEVELOPMENT AGREEMENT BY AND AMONG CITY OF COLUMBIA HEIGHTS AND COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY AND COLUMBIA HEIGHTS TRANSITION BLOCK LLC AND NEI COLLEGE OF TECHNOLOGY Dated March 1p , 2001 I NEI DEVELOPMENT AGREEMENT THIS NEI DEVELOPMENT AGREEMENT ( "Agreement ") is made as of the (.o day of March, 2001 by and among the City of Columbia Heights, Minnesota, a municipal corporation under the laws of Minnesota (the "City "), the Columbia Heights Economic Development Authority, a body corporate and politic under the laws of Minnesota (the "Authority "), Columbia Heights Transition Block LLC, a Minnesota limited liability company (the "Developer ") and NEI College of Technology, a Minnesota nonprofit corporation ( "NEI "). WITNESSETH: WHEREAS, the City, the Authority and the Developer have entered into a Development Agreement of even date herewith (the "City Development Agreement") providing for the development and construction of a senior housing assisted living residential facility (the "Senior Housing Project") and a Rental Housing multi - family residential facility (the "Rental Housing Project") on certain acquired by the Developer from NEI (the "Developer Parcels "); and WHEREAS, pursuant to that certain Purchase Agreement, dated as of October 19, 2000 (the "Purchase Agreement"), by which the Developer has purchased the Developer Parcels from NEI, the Developer has agreed to provide this NEI Development Agreement to NEI. NOW, THEREFORE, in consideration of the mutual covenants and obligations of the City, the Authority, the Developer, and NEI herein, in the City Development Agreement and the Purchase Agreement, each party does hereby represent, covenant and agree with the other as follows: ARTICLE I Definitions Section 1.1. In this Agreement, unless a different meaning clearly appears from the context: "Authority" means the Columbia Heights Economic Development Authority. "City" means the City of Columbia Heights, Minnesota. "Construction Plans" means plans, specifications, drawings and related documents on the construction work to be performed on the NEI Retained Property which are attached hereto as Exhibit A. "Crest View ONDC, Inc." means Crest View ONDC, Inc., a Minnesota nonprofit corporation. 1 "County" means the County of Anoka, Minnesota. "Event of Default" means an action by the Developer listed in Article IX of this Agreement. "NEI Improvements" means the construction on the NEI Retained Property of parking improvements described in the Construction Plans. "NEI Retained Property" means the real property owned by NEI legally described on Exhibit B attached hereto. "Rental Housing Owner" means Columbia Heights Housing Limited Partnership I, a Minnesota limited partnership, or its permitted successors and assigns. "Senior Housing Owner" means Crest View ONDC, Inc., or, on an interim basis, pending receipt of a determination letter from the Internal Revenue Service regarding the tax- exempt status of Crest View ONDC, Inc., Crest View Advanced Missions I, LLC, a Colorado limited liability company. "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 NEI 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 which directly result in delays. ARTICLE II Representations and Warranties Section 2.1. Representations by the City. The City represents as follows: (a) The City has the power to enter into this Agreement and carry out its obligations hereunder. • (b) The activities of the City are undertaken to facilitate the creation of housing opportunities for persons of low and moderate income and persons of age 62 and older pursuant to the City Development Agreement. Section 2.2. Representations by the Authority. The Authority represents as follows: (a) The Authority has the power to enter into this Agreement and carry out its obligations hereunder. 2 (b) The activities of the Authority are undertaken to facilitate the creation of housing opportunities for persons of low and moderate income and persons of age 62 and older pursuant to the City Development Agreement. Section 2.3. Representations and Warranties by Developer. Developer represents and warrants that: (a) Developer is a limited liability company in good standing under the laws of Minnesota and has power to enter into this Agreement. (b) Developer has received no notice or communication from any local, State, or federal official that the activities of the Developer, the City, the Authority, the Rental Housing Owner or the Senior Housing Owner pursuant to or envisioned by this Agreement may be or will be in violation of any environmental law or regulation. Developer is aware of no facts the existence of which would cause the Developer, the Rental Housing Owner or the Senior Housing Owner to be in violation of or give any person a valid claim under any local, State, or federal environmental law, regulation, or review procedure. (c) 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 Developer is now a party or by which it is bound, or constitutes a default under any of the foregoing. ARTICLE III Construction of NEI Improvements Section 3.1. Construction of NEI Improvements. (a) The Developer shall construct or cause the Rental Housing Owner and the Senior Housing Owner to construct the NEI Improvements on the NEI Retained Property in accordance with the Construction Plans. None of the City, the Authority or the Developer shall have any obligation to operate or maintain the NEI Improvements. (b) The Developer will construct or cause the Rental Housing Owner and the Senior Housing Owner to construct the NEI Improvements in accordance with all local, State, and federal energy - conservation laws or regulations. (c) The Developer will obtain, or cause the Rental Housing Owner and the Senior Housing Owner 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 are required to be obtained or met before the NEI Improvements can be lawfully constructed, including, without limitation, the requirements of any necessary special use permits. 3 Section 3.2. Commencement and Completion of Construction. The Developer shall commence, or shall cause the Rental Housing Owner or the Senior Housing Owner to commence, the construction of the NEI Improvements by not later than July 1, 2001, and shall complete or shall cause the Rental Housing Owner or the Senior Housing Owner to complete the construction of the NEI Improvements within eighteen (18) months of the date hereof, as such period may be extended due to Unavoidable Delays. ARTICLE IV Events of Default Section 4.1. Events of Default Defined. 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, provided that such failure or breach shall not constitute an "Event of Default" if corrective action is instituted by or on behalf of such party within a thirty (30) day period after service of notice of default upon such party and diligently pursued until the earlier of the date such default is corrected or one hundred eighty (180) days has elapsed. Nothing in this Article IV shall limit NEI's rights to exercise any remedy to which it is entitled under any other agreement. Section 4.2. Remedies on Default. Whenever any Event of Default referred to in Section 4.1 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; and (c) take whatever other 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. Section 4.3. 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. Section 4.4. 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 4 1 1 1 1 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. ARTICLE V Additional Provisions Section 5.1. No Assignment by Developer. The Developer acknowledges and agrees that the City, the Authority and NEI are entering into this Agreement in express reliance on the identity of the Developer and that neither the Developer's rights nor its obligations pursuant to this Agreement may be assigned, sold, hypothecated, pledged, or otherwise transferred to any party other than the Rental Housing Owner or the Senior Housing Owner without the express written consent of the City, the Authority and NEI. Section 5.2. Conflict of Interests; Authority and Representatives Not Individually Liable. The City, the Authority, the Developer and NEI, to the best of their respective knowledge, represent and agree that no member, official, or employee of the City or 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 City or the Authority shall be personally liable to NEI, the Developer, the Rental Housing Owner or the Senior Housing Owner, or any successor in interest, in the event of any default or breach by the City or the Authority, or for any amount which may become due to NEI, the Developer, the Rental Housing Owner or the Senior Housing Owner or successor or on any obligations under the terms of this Agreement. Section 5.3. Equal Employment Opportunity. The Developer, for itself and its successors and assigns, agrees that during the construction of the NEI Improvements provided for in this Agreement it shall comply with all applicable federal, State, and local equal employment and non - discrimination laws and regulations. Section 5.4. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 5.5. 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; and (a) in the case of the City, is addressed to or delivered personally to the City at 590 40th Avenue N.E., Columbia Heights, MN, Attn: City Manager; (b) in the case of the Authority, is addressed to or delivered personally to the Authority at 590 40th Avenue N.E., Columbia Heights, MN, Attn: Executive Director; 5 (c) in the case of the Developer, is addressed to or delivered and personally to Columbia Heights Transition Block LLC, 325 Cedar Street, Suite 400, St. Paul, MN 55101; and (d) in the case of NEI, is addressed to or delivered and personally to NEI College of Technology, 825 41st Avenue N.E, Columbia Heights, MN 55421, Attention: Chuck Dettmann; 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 5.5. Section 5.6. Counterparts; Modifications. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. This Agreement may not be modified, waived, or otherwise amended except by a writing signed by the Developer, the City, the Authority and NEI. Section 5.7. Continuation of Certain Obligations. Nothing in this Agreement shall act to modify, amend, or otherwise relieve the Developer of its obligations and undertakings as stated in any other agreement to which the City, the Authority or NEI is a party. Section 5.8. Governing Law; Venue. This Agreement shall be construed in accordance with the laws of the State of Minnesota. Any dispute arising from this Agreement shall be heard in the state or federal courts of Minnesota, and all parties waive any objection to the jurisdiction thereof, whether based on convenience or otherwise. Section 5.9. Termination of Agreement. Upon termination of this Agreement, no party hereto shall have any obligation or rights hereunder and this Agreement shall be of no further force and effect, except as such provisions herein are expressly stated to survive such termination. [Signature pages follow.] 6 IN WITNESS WHEREOF, the City, the Authority, the Developer and NEI have caused this Agreement to be duly executed in their name and on their behalf, with actual execution on the dates set forth below. CITY OF COLUMBIA HEIGHTS 'AWL, - Its Mayor By a y DATE: March 6, 2001 Its City Manager • • 1 • COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY By �4 -4/ � f President By / DATE: March , 2001 , Its Executive Director r 1 COLUMBIA HEIGHTS TRANSITION BLOCK LLC By - DATE: --2 )1 , 2001 Its 13ttlIMAII 9 , NEI COLLEGE OF TECHNOLOGY By .e . DATE: /e , 2001 Its Ar.05. - 10 EXHIBIT A CONSTRUCTION PLANS Included in Exhibit A: 1. Standard Form of Agreement Between Owner and Contractor — Stipulated Sum, dated January 4, 2001, between Columbia Heights Transition Block LLC and Watson- Forsberg Co., together with all exhibits and addenda thereto. 2. Construction Cost Estimate dated January 5, 2001. 3. Columbia Heights Transition Block, Parking Improvements (description of Work), dated January 4, 2001. 4. Letter of Columbia Heights Transition Block, LLC to NEI School of Technology, dated January 4, 2001, as received and accepted by NEI. 5. Construction Plans Supplement dated March 6, 2001. C.e "Y�JC S Standard Form of Agreement Between Owner and Contractor where the basis of payment is a STIPULATED SUM AIA Document A101 -1997 1997 Edition - Electronic Format THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES. CONSULTATION W1TH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. AUTHENTICATION OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401 AIA Document A201 -1997, General Conditions of the Contract for Construction, is adopted in this document by reference. Do not use with other general conditions unless this document is modified. This document has been approved and endorsed by The Associated General Contractors of America. Copyright 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 0 1997 by The American Institute of Architects. Reproduction of the material herein or substantial quotation of its provisions without written pennission of the AIA violates the copyright laws of the United States and will subject the violator to legal prosecution. AGREEMENT made as of the : ti day of VI' F: in the year of = (In words, indicate day, month and year) BETWEEN the Owner: (Name, address and other information) :012. V1BBIE _SrF Wa :.s ;} r�� r � e . * a , ...� t5 ta a ir . B acti ' � �i,,.„^.�ss`e. fix•..: . ,€�., and the Contractor (Name, address and other information) WAYS -FO B Lcq v i The Project is: (Name and location) _ The Architect is: (Name. address and other information) Hedlund Engineering 2005 Pin Oak Drive Eagan MN 55122 The Owner and Contractor agree as follows. ARTICLE 1 THE CONTRACT DOCUMENTS The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement and AIA DOCUMENT A101 -OWNER - CONTRACTOR AGREEMENT - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A101 -1997 User Document: AIA — 1/4/2001. AIA License Number 117881, which expires on 5/31/2001 — Page #1 Modifications issued after execution of this Agreement; these form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Contract Documents, other than Modifications, appears in Article 8. ARTICLE 2 THE WORK OF THIS CONTRACT The Contractor shall fully execute the Work described in the Contract Documents, except to the extent specifically indicated in the Contract Documents to be the responsibility of others. ..,::., . Insert > : °T•Owner °res onslble - �'` _ for. remoual �of�: hazardousFxmatenals�General� :,Gontraetorto _ .::. l :ate:- ��eonstructlon�K schedule; ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 3.1 The date of commencement of the Work shall be the date of this Agreement unless a different date is stated below or provision is made for the date to be fixed in a notice to proceed issued by the Owner. (Insert the date of commencement if it dyers from , the date of this Agreement or, if applicable, state that the date will be fixed in a notice to proceed.) - ...,. �.. Y .. �::;' ���.; s�: ��F* r�:; �xs;± �:..- .. - _ , . ...:- R.. .__•- ^..- :x�;��a,� - . . s:;.: �° ^_:-�- �:�- ?- . . ;;a:,�e -� Coiririi encemen to; be; conJu ncnonwithstartof::;Columbia °::Court; ro ect and :coordmateRrvith °NEI =andOwner If, prior to the commencement of the Work, the Owner requires time to file mortgages, mechanic's liens and other security interests, the Owner's time requirement shall be as follows: 3.2 The Contract Time shall be measured from the date of commencement. 3.3 The Contractor shall achieve Substantial Completion of the entire Work not later than days from the date of commencement, or as follows: (Insert number of calendar days. Alternatively, a calendar date may be used when coordinated with the date of commencement. Unless stated elsewhere in the Contract Documents, insert any requirements for earlier Substantial Completion of certain portions of the Work.) Substan #tacompletionVAclays�riimg ... cem , subject to adjustments of this Contract Time as provided in the Contract Documents. (Insert provisions, if any, for liquidated damages relating to failure to complete on time or for bonus payments for early completion of the Work) ARTICLE 4 CONTRACT SUM -- 4.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's performance 'of the Contract. The Contract Sum shall be iii _ _: "'�'' = '' o Dollars hundre __ °::moiety l; • �M _ . unite °f _ ($ .. ; , ) ..,: ...._._:.:,. � sai►d=f�tir�" o ` seven�,a n : _ subject to additions and deductions as provided in the Contract Documents. 4.2 The Contract Sum is based upon the following alternates, if any, which are described in the Contract Documents and are hereby accepted by the Owner: (State the numbers or other identification of accepted alternates. If decisions on other alternates are to be made by the Owner subsequent to the execution of this Agreement, attach a schedule of such other alternates showing the amount for each and the date when that amount expires) 4.3 Unit prices, if any, areas follows: ..., ,._.,.:.. ,._._ __• - -... -- x,sw._.�:�.:. _�.,�:.w- _4:. .:... •-- <.,+e�:. ;r- �'r;':a:.�r r:_. ...:.sus• -�`= -r:- xx --.. �:. �x.•...�:,�-- �-- �Ta=."°' "s.- �.�� -�;:�: :- '�5 -..�: W... 1 The 3:followrn < hou"rl "gates r4shall lie�3.•ehi . where = a ttcable=x l an �:i der tuner- ext sionsFLon waaditionaI • _ ..... , .: ,;.:.�... � . . •.:� -_,:.. - &ter . re onsibtlrt�es: l?ro ec .iylan a $75:x:0_. o 4711. c.M. ernitende t:_$S } 0 ARTICLE 5 PAYMENTS 5.1 PROGRESS PAYMENTS 5.1.1 Based upon Applications for Payment submitted to the Architect Architect =`by the Contractor and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents. 5.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows: - AIA DOCUMENT AI01 -OWNER - CONTRACTOR AGREEMENT - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A101 -1997 User Document: AIA -- 1/4/2001. AIA License Number 117881, which expires on 5/31/2001 -- Page #2 pP Payment by oMte,.« 5.1.3 Provided that an Application for Pa ent is received b the�.�� Owne>k snot later than the :fitday of a month, the Owner shall make payment to the Contractor not later than the fa day of the following month. If an Application for Payment is received by the Arshitectbwner after the application date fixed above, payment shall be made by the Owner not later than Ea days after the i\rchitcctO mer-..k receives the Application for Payment. 5.1.4 Each Application for Payment shall be based on the most recent schedule of values submitted by the Contractor in accordance with the Contract Documents. The schedule of values shall allocate the entire Contract Sum among the various portions of the Work. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Contractor's Applications for Payment. 5.1.5 Applications for Payment shall indicate the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. 5.1.6 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: .1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Contract Sum allocated to that portion of the Work in the schedule of values, less retainage of five percent (S %). Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Subparagraph 7.3.8 of AIA Document A201 -1997; . 2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), less retainage of five percent (5 %); . 3 Subtract the aggregate of previous payments made by the Owner; and .4 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Paragraph 9.5 of AIA Document A201 -1997. 5.1.7 The progress payment amount determined in accordance with Subparagraph 5.1.6 shall be further modified under the following circumstances: . 1 Add, upon Substantial Completion of the Work, a sum sufficient to increase the total payments to the full amount of the Contract Sum, less such amounts as the Architect shall determine for incomplete Work, retainage applicable to such work and unsettled claims; and paymerif folbe increases to_98 0 won Substa_nti C"oinpleUon (Subparagraph 9.8.5 of Ala Document A201 -1997 requires release of applicable retainage upon Substantial Completion of Work with consent of surety, if any.) . 2 Add, if fmal completion of the Work is thereafter materially delayed through no fault of the Contractor, any additional amounts payable in accordance with Subparagraph 9.10.3 of AIA Document A201 -1997. 5.1.8 Reduction or limitation of retainage, if any, shall be as follows: (!f it is intended, prior to Substantial Completion of the entire Work, to reduce or limit the retainage resulting from the percentages inserted in Clauses 5.1.6.1 and 5.1.6.2 above, and this is not explained elsewhere in the Contract Documents, insert here provisions for such reduction or limitation.) 9. ofthe°specifi and = 9'8`:S�of General �Co ndiuons: Perr207Artrcle -� 5.1.9 Except with the Owner's prior approval, the Contractor shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. • 5.2 FINAL PAYMENT 5.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when: AIA DOCUMENT A101 -OWNER - CONTRACTOR AGREEMENT - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A101 -1997 User Document: AIA -- 1/4/2001. AIA License Number 117881, which expires on 5/31/2001 -- Page #3 .1 the Contractor has fully performed the Contract except for the Contractor's responsibility to correct Work as provided in Subparagraph 12.2.2 of AIA Document A201 -1997, and to satisfy other requirements, if any, which extend beyond final payment; and .2 a final Certificate for Payment has been issued by the Architect. 5.2.2 The Owner's final payment to the Contractor shall be made no later than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows: AM¢CErtif cafe for• Pa ent is exec ted b' y Arc? itgct Cbntra�cfgr: andyOwner ARTICLE 6 TERMINATION OR SUSPENSION 6.1 The Contract may be terminated by the Owner or the Contractor as provided in Article 14 of AIA Document A201 -1997. 6.2 The Work may be suspended by the Owner as provided in Article 14 of AIA Document A201 -1997. ARTICLE 7 MISCELLANEOUS PROVISIONS 7.1 Where reference is made in this Agreement to a provision of AIA Document A201 -1997 or another Contract Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. 7.2 Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. (Insert rate of interest agreed upon, if any.) (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Contractor's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Legal advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.) 7.3 The Owner's representative is: (Name, address and other information) • Chns`W Real::Est :Company 7.4 The Contractor's representative is: (Name, address and other information) Y r n =Palm : atson2l orsberg Cq P1onex952/544761 7.5 Neither the Owner's nor the Contractor's representative shall be changed without ten days written notice to the other party. 7.6 Other provisions: ARTICLE 8 ENUMERATION OF CONTRACT DOCUMENTS 8.1 The Contract Documents, except for Modifications issued after execution of this Agreement, are enumerated as follows: 8.1.1 The Agreement is this executed 1997 edition of the Standard Form of Agreement Between Owner and Contractor, AIA Document A101 -1997. 8.1.2 The General Conditions are the 1997 edition of the General Conditions of the Contract for Construction, AIA Document A201 -1997. 8.1.3 The Supplementary and other Conditions of the Contract are those contained in the Project Manual dated luu_ e:,6,:20Qb , and are as follows: AIA DOCUMENT A101 -OWNER - CONTRACTOR AGREEMENT - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A101 -1997 User Document: AIA -- 1/4/2001. AIA License Number 117881, which expires on 5/31/2001 -- Page #4 Document Title Pages 8.1.4 The Specifications are those contained in the Project Manual dated as in Subparagraph 8.1.3, and are as follows: • (Either list the Specifications here or refer to an exhibit attached to this Agreement.) Section Title Pages 8.1.5 The Drawings are as follows, and are dated DiEeinber, 23;2000 unless a different date is shown below: (Either list the Drawings here or refer to an exhibit attached to this Agreement) Number Title Date SLIP Ste 8.1.6 The Addenda, if any, are as follows: Number Date Pages Narrative`' Ieseript on oCfalk Portions of Addenda relating to bidding requirements are not part of the Contract Documents unless the bidding requirements are also enumerated in this Article 8. 8.1.7 Other documents, if any, forming part of the Contract Documents are as follows: (List here any additional documents that are intended to form part .of the Contract Documents. AIA Document A201 -1997 provides that bidding requirements such as advertisement or invitation to bid Instructions to Bidders, sample forms and the Contractor's bid are not part of the Contract Documents unless enumerated in this Agreement. They should be listed here only if intended to be part of the Contract Documents.) This Agreement is entered into as of the day and year first written above and is executed in at least three original copies, of which one is to be delivered to the Contractor, one to the Architect for use in the administration of the Contract, and the remainder to the Owner. l L t..- OWNER (Si < .; CON CTOR (Signature) r-tirtA-k- S ,C S7-4-1 -t S R WeAv( Dale"Forsberg resident (Printed name and title) (Printed name and title) AIA DOCUMENT A101 -OWNER - CONTRACTOR AGREEMENT - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A101 -1997 User Document: AIA -- 1/4/2001. AIA License Number 117881, which expires on 5/31/2001 -- Page #5 • General Conditions of the Contract for Construction AIA Document A201 - 1997 1997 Edition - Electronic Format This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. AUTHENTICATION OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401. This document has been approved and endorsed by The Associated General Contractors of America. Copyright 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987, C1997 by The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial quotation of its provisions without written permission of the AIA violates the copyright laws of the United States and will subject the violator to legal prosecution. TABLE OF ARTICLES 1. GENERAL PROVISIONS 2. OWNER 3. CONTRACTOR 4. ADMINISTRATION OF THE CONTRACT 5. SUBCONTRACTORS 6. CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 7. CHANGES IN THE WORK 8. TIME 9. PAYMENTS AND COMPLETION 10. PROTECTION OF PERSONS AND PROPERTY 11. INSURANCE AND BONDS 12. UNCOVERING AND CORRECTION OF WORK 13. MISCELLANEOUS PROVISIONS 14. TERMINATION OR SUSPENSION OF THE CONTRACT AIA DOCUMENT A20I- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #1 ' INDEX Architect's Administration of the Contract Acceptance of Nonconforming Work 3.1.3, 4.2, 4.3.4, 4.4, 9.4, 9.5 9.6.6, 9.9.3, 12.3 Architect's Approvals Acceptance of Work 2.4, 3.1.3, 3.5.1, 3.10.2, 4.2.7 9.6.6, 9.8.2, 9.9.3, 9.10.1, 9.10.3, 12.3 Architect's Authority to Reject Work Access to Work 3.5.1, 4.2.6, 12.1.2, 12.2.1 3.16, 6.2.1, 12.1 Architect's Copyright Accident Prevention 1.6 4.2.3, 10 Architect's Decisions Acts and Omissions 4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4, 4.4.1, 4.4.5, 4.4.6, 3.2, 3.3.2, 3.12.8, 3.18, 4.2.3, 4.3.8, 4.4.1, 8.3.1, 9.5.1, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3.1, 9.2, 9.4, 9.5.1, 9.8.4, 9.9.1, 10.2.5, 13.4.2, 13.7, 14.1 13.5.2, 14.2.2, 14.2.4 Addenda Architect's Inspections 1.1.1, 3.11 4.2.2, 4.2.9, 4.3.4, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 13.5 Additional Costs, Claims for Architect's Instructions 4.3.4,4.3.5,4.3.6,6.1.1, 10.3 3.2.3, 3.3.1, 4.2.6, 4.2.7, 4.2.8, 7.4.1, 12.1, 13.5.2 Additional Inspections and Testing Architect's Interpretations 9.8.3, 12.2.1, 13.5 4.2.11,4.2.12,4.3.6 Additional Time, Claims for Architect's Project Representative 4.3.4, 4.3.7, 8.3.2 4.2.10 ADMINISTRATION OF THE CONTRACT Architect's Relationship with Contractor 3.1.3, 4, 9.4, 9.5 1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1, 3.42, 3.5.1, 3.73, Advertisement or Invitation to Bid 3.10, 3.11, 3.12, 3.16, 3.18, 4.1.2, 4.1.3, 4.2, 4.3.4, 4.4.1, 1.1.1 4.4.7, 5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, 9.4, 9.5, 9.7, 9.8, 9.9, Aesthetic Effect 10.2.6, 10.3, 11.3, 11.4.7, 12, 13.4.2, 13.5 4.2.13, 4.5.1 Architect's Relationship with Subcontractors Allowances 1.1.2, 4.2.3, 4.2.4, 4.2.6, 9.6.3, 9.6.4, 11.4.7 3 . 8 Architect's Representations All -risk Insurance 9.4.2, 9.5.1, 9.10.1 11.4.1.1 Architect's Site Visits Applications for Payment 4.2.2, 4.2.5, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2, 9.10.1, 13.5 4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1, 9.8.5, 9.10, Asbestos 11.1.3, 14.2.4, 14.4.3 10.3.1 Approvals Attorneys' Fees 2.4, 3.1.3, 3.5, 3.10.2, 3.12, 4.2.7, 9.3.2, 13.4.2, 13.5 3.18.1, 9.10.2, 10.3.3 Arbitration Award of Separate Contracts 4.3.3, 4.4, 4.5.1, 4.5.2, 4.6, 8.3.1, 9.7.1, 11.4.9, 11.4.10 6.1.1,6.1.2 Architect Award of Subcontracts and Other Contracts for Portions of the 4 . 1 Work Architect, Definition of 6.2 4.1.1 Basic Definitions Architect, Extent of Authority 1.1 2.4, 3.12.7, 4.2, 4.3.6, 4.4, 5.2, 6.3, 7.1.2, 7.3.6, 7.4, 9.2, Bidding Requirements 9.3.1, 9.4, 9.5, 9.8.3, 9.10.1, 9.10.3, 12.1, 12.2.1, 13.5.1, 1.1.1, 1.1.7, 5.2.1, 11.5.1 13.5.2, 14.2.2, 14.2.4 Boiler and Machinery Insurance Architect, Limitations of Authority and Responsibility 11.4.2 2.1.1, 3.3.3, 3.12.4, 3.12.8, 3.12.10, 4.1.2, 4.2.1, 4.2.2, Bonds, Lien 4.2.3, 4.2.6, 4.2.7, 4.2.10, 4.2.12, 4.2.13, 4.4, 5.2.1, 7.4, 9.10.2 9.4.2, 9.6.4, 9.6.6 Bonds, Performance, and Payment Architect's Additional Services and Expenses 7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5 2.4, 11.4.1.1, 12.2.1, 13.5.2, 13.5.3, 14.2.4 Building Permit 3.7.1 Capitalization 1.3 Certificate of Substantial Completion AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #2 ' 9.8.3, 9.8.4, 9.8.5 1.6.1, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6.4, 4.6.6, Certificates for Payment 9.6.4, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1, 13.5.2, 13.6, 4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6, 9.7.1, 9.10.1, 14.1.1, 14.2.1.3 9.10.3, 13.7, 14.1.1.3, 14.2.4 Concealed or Unknown Conditions Certificates of Inspection, Testing or Approval 4.3.4, 8.3.1, 10.3 13.5.4 Conditions of the Contract Certificates of Insurance 1.1.1, 1.1.7, 6.1.1, 6.1.4 9.10.2, 11.1.3 Consent, Written Change Orders 1.6, 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2, 9.8.5, 1 . 1 . 1 , 2 . 4 . 1 , 3 . 4 . 2 ,3.8.2.3,3 .11.1,3.12.8,4.2.8,4.3.4,4.3.9, 9.9.1, 9.10.2, 9.10.3, 11.4.1, 13.2, 13.4.2 5.2.3, 7.1, 7.2, 7.3, 8.3.I, 9.3.1.1, 9.10.3, 11.4.1.2, 11.4.4, CONSTRUCTION BY OWNER OR BY SEPARATE 11.4.9, 12.1.2 CONTRACTORS Change Orders, Defmition of 1.1.4, 6 7.2.1 Construction Change Directive, Definition of CHANGES IN THE WORK 7.3.1 3.11, 4.2.8, 7, 8.3.1, 9.3.1.1, 11.4.9 Construction Change Directives Claim, Defmition of 1.1.1, 3.12.8, 4.2.8, 4.3.9, 7.1, 7.3, 9.3.1.1 4.3.1 Construction Schedules, Contractor's Claims and Disputes 1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3 3.2.3, 4.3, 4.4, 4.5, 4.6, 6.1.1, 6.3, 7.3.8, 9.33, 9.10.4, Contingent Assignment of Subcontracts 10.3.3 5.4, 14.2.2.2 Claims and Timely Assertion of Claims Continuing Contract Performance 4.6.5 4.3.3 Claims for Additional Cost Contract, Definition of 3.2.3, 4.3.4, 4.3.5, 4.3.6, 6.1.1, 7.3.8, 10.3.2 1.1.2 Claims for Additional Time CONTRACT, TERMINATION OR SUSPENSION OF THE 3.2.3, 4.3.4, 4.3.7, 6.1.1, 8.3.2, 10.3.2 5.4.1.1, 11.4.9, 14 Claims for Concealed or Unknown Conditions. Contract Administration 4.3.4 3.1.3, 4, 9.4, 9.5 Claims for Damages Contract Award and Execution, Conditions Relating to 3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.1, 9.6.7, 10.3.3, 11.1.1, 3.7.1, 3.10, 5.2, 6.1, 11.1.3, 11.4.6, 11.5.1 11.4.5, 11.4.7, 14.1.3, 14.2.4 Contract Documents, The Claims Subject to Arbitration 1.1, 1.2 4.4.1, 4.5.1, 4.6.1 Contract Documents, Copies Furnished and Use of Cleaning Up 1.6, 2.2.5, 5.3 3.15, 6.3 Contract Documents, Definition of Commencement of Statutory Limitation Period 1.1.1 13.7 Contract Sum Commencement of the Work, Conditions Relating to 3.8, 4.3.4, 4.3.5, 4.4.5, 5.2.3, 7.2, 7.3, 7.4, 9.1, 9.4.2, 2.2.1, 3.2.1, 3.4.1, 3.7.1, 3.10.1, 3.12.6, 4.3.5, 5.2.1, 5.2.3, 9.5.1.4, 9.6.7, 9.7, 10.3.2, 11.4.1, 14.2.4, 14.3.2 6.2.2, 8.1.2, 8.2.2, 8.3.1, 11.1, 11.4.1, 11.4.6, 11.5.1 Contract Sum, Definition of Commencement of the Work, Definition of 9.1 8.1.2 Contract Time Communications Facilitating Contract Administration 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1.3, 7.3, 7.4, 8.1.1, 8.2, 8.3.1, 3.9.1, 4.2.4 9.5.1, 9.7, 10.3.2, 12.1.1, 14.3.2 Completion, Conditions Relating to Contract Time, Definition of 1.6.1, 3.4.1, 3.11, 3.15, 4.2.2, 4.2.9, 8.2, 9.4.2, 9.8, 9.9.1, 8.1.1 9.10, 12.2, 13.7, 14.1.2 CONTRACTOR COMPLETION, PAYMENTS AND 3 9 Contractor, Definition of Completion, Substantial 3.1, 6.1.2 4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9.10.3, 9.10.4.2, Contractor's Construction Schedules 12.2, 13.7 1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3 Compliance with Laws Contractor's Employees AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #3 .1.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2, 10.3, 3.14.2, 6.2.4, 9.2.1.5, 10.2.1.2, 10.2.5, 10.6, 11.1, 11.4, 11.1.1, 11.4.7, 14.1, 14.2.1.1, 12.2.4 Contractor's Liability Insurance Damage to the Work 11.1 3.14.2, 9.9.1, 10.2.1.2, 10.2.5, 10.6, 11.4, 12.2.4 Contractor's Relationship with Separate Contractors and Owner's Damages, Claims for Forces 3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.1, 9.6.7, 10.3.3, 11.1.1, 3.12.5, 3.14.2, 4.2.4, 6, 11.4.7, 12.1.2, 12.2.4 11.4.5, 11.4.7, 14.1.3, 14.2.4 Contractor's Relationship with Subcontractors Damages for Delay 1.2.2, 3.3.2, 3.18.1, 3.18.2, 5, 9.6.2, 9.6.7, 9.10.2, 11.4.1.2, 6.1.1, 8.3.3, 9.5.1.6, 9.7, 10.3.2 11.4.7, 11.4.8 Date of Commencement of the Work, Defmition of Contractor's Relationship with the Architect 8.1.2 1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1, 3.4.2, 3.5.1, 3.7.3, Date of Substantial Completion, Definition of 3.10, 3.11, 3.12, 3.16, 3.18, 4.1.2, 4.1.3, 4.2, 4.3.4, 4.4.1, 8.1.3 4.4.7, 5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, 9.4, .5, 9.7, 9.8, 9.9, Day, Definition of 10.2.6, 10.3, 11.3, 11.4.7, 12, 13.4.2, 13.5 8.1.4 Contractor's Representations Decisions of the Architect 1.5.2, 3.5.1, 3.12.6, 6.2.2, 8.2.1, 9.3.3, 9.8.2 4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4, 4.4.1, 4.4.5, 4.4.6, Contractor's Responsibility for Those Performing the Work 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3.1, 9.2, 9.4, 9.5.1, 9.8.4, 9.9.1, 3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1, 6.1.3, 6.2, 6.3, 9.5.1, 10 13.5.2, 14.2.2, 14.2.4 Contractor's Review of Contract Documents Decisions to Withhold Certification 1.5.2, 3.2, 3.7.3 9.4.1, 9.5, 9.7, 14.1.1.3 Contractor's Right to Stop the Work Defective or Nonconforming Work, Acceptance, Rejection and 9.7 Correction of Contractor's Right to Terminate the Contract 2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.5.2, 9.6.6, 9.8.2, 9.9.3, 4.3.10, 14.1 9.10.4, 12.2.1, 13.7.1.3 Contractor's Submittals Defective Work, Defmition of 3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3, 9.8.2, 3.5.1 9.8.3, 9.9.1, 9.10.2, 9.10.3, 11.1.3, 11.5.2 Definitions Contractor's Superintendent 1.1, 2.1.1, 3.1, 3.5.1, 3.12.1, 3.12.2, 3.12.3, 4.1.1, 4.3.1, 5.1, 3.9, 10.2.6 6.1.2, 7.2.1, 7.3.1, 7.3.6, 8.1, 9.1, 9.8.1 Contractor's Supervision and Construction Procedures Delays and Extensions of Time 1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, 6.1.3, 6.2.4, 7.1.3, - 3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1, 7.4.1, 7.3.4, 7.3.6, 8.2, 10, 12, 14 7.5.1, 8.3, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2 Contractual Liability Insurance Disputes 11.1.1.8, 11.2, 11.3 4.1.4, 4.3, 4.4, 4.5, 4.6, 6.3, 7.3.8 Coordination and Correlation Documents and Samples at the Site 1.2, 1.5.2, 3.3.1, 3.10, 3.12.6, 6.1.3, 6.2.1 3.11 Copies Furnished of Drawings and Specifications Drawings, Definition of 1.6, 2.2.5, 3.11 1.1.5 Copyrights Drawings and Specifications, Use and Ownership of 1.6,3.17 1.1.1, 1.3,2.2.5,3.11,5.3 Correction of Work Effective Date of Insurance 2.3, 2.4, 3.7.4, 4.2.1, 9.4.2, 9.8.2, 9.8.3, 9.9.1, 12.1.2, 12.2, 8.2.2, 11.1.2 13.7.1.3 Emergencies Correlation and Intent of the Contract Documents 4.3.5, 10.8, 14.1.1.2 1.2 Employees, Contractor's Cost, Defmition of 3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2, 10.3, 7.3.6 11.1.1, 11.4.7, 14.1, 14.2.1.1 Costs Equipment, Labor, Materials and 2.4, 3.2.3, 3.7.4, 3.8.2, 3.15.2, 4.3, 5.4.2, 6.1.1, 6.2.3, 1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12, 3.13, 3.15.1, 4.2.6, 7.3.3.3, 7.3.6, 7.3.7, 7.3.8, 9.10.2, 10.3.2, 10.5, 11.3, 11.4, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 12.1, 12.2.1, 12.2.4, 13.5, 14 10.2.4, 14.2.1.2 Cutting and Patching Execution and Progress of the Work 6.2.5, 3.14 1.1.3, 1.2.1, 1.2.2, 2.2.3, 2.2.5, 3.1, 3.3, 3.4, 3.5, 3.7, 3.10, Damage to Construction of Owner or Separate Contractors 3.12, 3.14, 4.2.2, 4.2.3, 4.3.3, 6.2.2, 7.1.3, 7.3.4, 8.2, 9.5, AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiation as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #4 ' 9.9.1, 10.2, 10.3, 12.2, 14.2, 14.3 Insurance, Project Management Protective Liability Extensions of Time 11.3 3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3, 7.4.1, 9.5.1, Insurance, Property 9.7.1, 10.3.2, 10.6.1, 14.3.2 10.2.5, 11.4 Failure of Payment Insurance, Stored Materials 4.3.6, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3, 14.2.1.2, 13.6 9.3.2, 11.4.1.4 Faulty Work INSURANCE AND BONDS (See Defective or Nonconforming Work) 11 Final Completion and Final Payment Insurance Companies, Consent to Partial Occupancy 4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.4.1, 11.4.5, 9.9.1, 11.4.1.5 12.3.1, 13.7, 14.2.4, 14.4.3 Insurance Companies, Settlement with Financial Arrangements, Owner's 11.4.10 2.2.1, 13.2.2, 14.1.1.5 Intent of the Contract Documents Fire and Extended Coverage Insurance 1.2.1, 4.2.7, 4.2.12, 4.2.13, 7.4 11.4 Interest GENERAL PROVISIONS 13.6 1 Interpretation Governing Law 1.2.3, 1.4, 4.1.1, 4.3.1, 5.1, 6.1.2, 8.1.4 13.1 Interpretations, Written Guarantees (See Warranty) 4.2.11, 4.2.12, 4.3.6 Hazardous Materials Joinder and Consolidation of Claims Required 10.2.4, 10.3, 10.5 4.6.4 Identification of Contract Documents Judgment on Final Award 1.5.1 4.6.6 Identification of Subcontractors and Suppliers Labor and Materials, Equipment 5.2.1 1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12, 3.13, 3.15.1, 42.6, Indemnification 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 3.17, 3.18, 9.10.2, 10.3.3, 10.5, 11.4.1.2, 11.4.7 10.2.4, 14.2.1.2 Information and Services Required of the Owner Labor Disputes 2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3, 6.1.4, 8.3.1 6.2.5, 9.3.2, 9.6.1, 9.6.4, 9.9.2, 9.10.3, 10.3.3, 11.2, 11.4, Laws and Regulations 13.5.1, 13.5.2, 14.1.1.4, 14.1.4 1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6, 9.6.4, Injury or Damage to Person or Property 9.9.1, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14 4.3.8, 10.2, 10.6 Liens Inspections 2.1.2, 4.4.8, 8.2.2, 9.3.3, 9.10 3.1.3, 3.3.3, 3.7.1, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.2, 9.8.3, Limitation on Consolidation or Joinder 9.9.2, 9.10.1, 12.2.1, 13.5 4.6.4 Instructions to Bidders Limitations, Statutes of 1.1.1 4.6.3, 12.2.6, 13.7 Instructions to the Contractor Limitations of Liability 3.2.3, 3.3.1, 3.8.1, 4.2.8, 5.2.1, 7, 12, 8.2.2, 13.5.2 2.3, 3.2.1, 3.5.1, 3.7.3, 3.12.8, 3.12.10, 3.17, 3.18, 4.2.6, Insurance 4.2.7, 4.2.12, 6.2.2, 9.4.2, 9.6.4, 9.6.7, 9.10.4, 10.3.3, 3.18.1, 6.1.1, 7.3.6, 8.2.1, 9.3.2, 9.8.4, 9.9.1, 9.10.2, 9.10.5, 10.2.5, 11.1.2, 11.2.1, 11.4.7, 12.2.5, 13.4.2 11 Limitations of Time Insurance, Boiler and Machinery 2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11, 3.12.5, 3.15.1, 4.2.7, 11.4.2 4.3, 4.4, 4.5, 4.6, 5.2, 5.3, 5.4, 6.2.4, 7.3, 7.4, 8.2, 9.2, 9.3.1, Insurance, Contractor's Liability 9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10, 11.1.3, 11.4.1.5, 11.1 11.4.6, 11.4.10, 12.2, 13.5, 13.7, 14 Insurance, Effective Date of Loss of Use Insurance 8.2.2, 11.1.2 11.4.3 Insurance, Loss of Use Material Suppliers 11.4.3 1.6, 3.12.1, 4.2.4, 4.2.6, 5.2.1, 9.3, 9.4.2, 9.6, 9.10.5 Insurance, Owner's Liability Materials, Hazardous 11.2 10.2.4, 10.3, 10.5 AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #5 r t ' Materials, Labor, Equipment and 6.2.5, 9.3.2, 9.6.1, 9.6.4, 9.9.2, 9.10.3, 10.3.3, 11.2, 11.4, 1.1.3, 1.1.6, 1.6.1, 3.4, 3.5.1, 3.8.2, 3.8.23, 3.12, 3.13, 13.5.1, 13.5.2, 14.1.1.4, 14.1.4 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3, 9.5.1.3, Owner's Authority 9.10.2, 10.2.1, 10.2.4, 14.2.1.2 1.6,2.1.1,2.3,2.4,3.4.2,3. 8.1,3.12.10,3.14.2,4.1.2,4.1.3, Means, Methods, Techniques, Sequences and Procedures of 4.2.4, 4.2.9, 4.3.6, 4.4.7, 5.2.1, 5.2.4, 5.4.1, 6.1, 6.3, 7.2.1, Construction 7.3.1, 8.2.2, 8.3.1, 9.3.1, 9.3.2, 9.5.1, 9.9.1, 9.10.2, 10.3.2, 3.3.1,3.12.10,4.2.2,4.2.7,9.4.2 11.1.3, 11.3.1, 11.4.3, 11.4.10, 12.2.2, 12.3.1, 13.2.2, 14.3, Mechanic's Lien 14.4 4.4.8 Owner's Financial Capability Mediation 2.2.1, 13.2.2, 14.1.1.5 4.4.1, 4.4.5, 4.4.6, 4.4.8, 4.5, 4.6.1, 4.6.2, 8.3.1, 10.5 Owner's Liability Insurance Minor Changes in the Work 11.2 1.1.1, 3.12.8, 4.2.8, 4.3.6, 7.1, 7.4 Owner's Loss of Use Insurance MISCELLANEOUS PROVISIONS 11.4.3 13 Owner's Relationship with Subcontractors Modifications, Definition of 1.1.2, 5.2, 5.3, 5.4, 9.6.4, 9.10.2, 14.2.2 1.1.1 Owner's Right to Carry Out the Work Modifications to the Contract 2.4, 12.2.4. 14.2.2.2 1.1.1, 1.1.2, 3.7.3, 3.11, 4.1.2, 4.2.1, 5.2.3, 7, 8.3.1, 9.7, Owner's Right to Clean Up 10.3.2, 11.4.1 6.3 Mutual Responsibility Owner's Right to Perform Construction and to Award Separate 6.2 Contracts Nonconforming Work, Acceptance of 6.1 9.6.6, 9.9.3, 12.3 Owner's Right to Stop the Work Nonconforming Work, Rejection and Correction of 2.3 2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.8.2, 9.9.3, 9.10.4, 12.2.1, Owner's Right to Suspend the Work 13.7.1.3 14.3 Notice Owner's Right to Terminate the Contract 2.2.1, 2.3, 2.4, 3.2.3, 3.3.1, 3.7.2, 3.7.4,3.12.9, 4.3, 4.4.8, 14.2 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 11.1.3, 11.4.6, 12.2.2, Ownership and Use of Drawings, Specifications and Other 12.2.4, 13.3, 13.5.1, 13.5.2, 14.1, 14.2 Instruments of Service Notice, Written 1.1.1, 1.6, 2.2.5, 3.2.1, 3.11.1, 3.17.1, 4.2.12, 5.3 2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8, 4.6.5, 5.2.1, Partial Occupancy or Use 8.2.2, 9.7, 9.10, 10.2.2, 10.3, 11.1.3, 11.4.6, 12.2.2, 12.2.4, 9.6.6, 9.9, 11.4.1.5 13.3, 14 Patching, Cutting and Notice of Testing and Inspections 3.14, 6.2.5 13.5.1, 13.5.2 Patents Notice to Proceed 3.17 8.2.2 Payment, Applications for Notices, Permits, Fees and 4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1, 9.8.5, 9.10.1, 2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2 9.10.3, 9.10.5, 11.1.3, 14.2.4, 14.4.3 Observations, Contractor's Payment, Certificates for 1.5.2, 3.2, 3.7.3, 4.3.4 4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6, 9.7.1, 9.10.1, Occupancy 9.10.3, 13.7, 14.1.1.3, 14.2.4 2.2.2, 9.6.6, 9.8, 11.4.1.5 Payment, Failure of Orders, Written 4.3.6, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3, 14.2.1.2, 13.6 1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1, 12.2, 13.5.2, Payment, Final 14.3.1 4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.4.1, 11.4.5, OWNER 12.3.1, 13.7, 14.2.4, 14.4.3 2 Payment Bond, Performance Bond and Owner, Definition of 7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5 2.1 Payments, Progress Owner, Information and Services Required of the 4.3.3, 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3 2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3, 6.1.4, PAYMENTS AND COMPLETION AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #6 9 Contractor Payments to Subcontractors 1.5.2, 3.2, 3.7.3, 3.12.7, 6.1.3 5.4.2, 9.5.1.3, 9.6.2, 9.6.3, 9.6.4, 9.6.7, 11.4.8, 14.2.1.2 Review of Contractor's Submittals by Owner and Architect PCB 3.10.1, 3.10.2, 3.11, 3.12, 4.2, 5.2, 6.1.3, 9.2, 9.8.2 10.3.1 Review of Shop Drawings, Product Data and Samples by Performance Bond and Payment Bond Contractor 7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5 3.12 Permits, Fees and Notices Rights and Remedies 2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2 1.1.2, 2.3, 2.4, 3.5.1, 3.15.2, 4.2.6, 4.3.4, 4.5, 4.6, 5.3, 5.4, PERSONS AND PROPERTY, PROTECTION OF 6.1, 6.3, 7.3.1, 8.3, 9.5.1, 9.7, 10.2.5, 10.3, 12.2.2, 12.2.4, 10 13.4, 14 Polychlorinated Biphenyl Royalties, Patents and Copyrights 10.3.1 3.17 Product Data, Definition of Rules and Notices for Arbitration 3.12.2 4.6.2 Product Data and Samples, Shop Drawings Safety of Persons and Property 3.11, 3.12, 4.2.7 10.2, 10.6 Progress and Completion Safety Precautions and Programs 4.2.2, 4.3.3, 8.2, 9.8, 9.9.1, 14.1.4 3.3.1, 4.2.2, 4.2.7, 5.3.1, 10.1, 10.2, 10.6 Progress Payments Samples, Definition of 4.3.3, 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3 • 3.12.3 Project, Definition of the Samples, Shop Drawings, Product Data and 1.1.4 3.11, 3.12, 4.2.7 Project Management Protective Liability Insurance Samples at the Site, Documents and 11.3 3.11 Project Manual, Definition of the Schedule of Values 1.1.7 9.2, 9.3.1 Project Manuals Schedules, Construction 2.2.5 1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3 Project Representatives Separate Contracts and Contractors 4.2.10 1.1.4, 3.12.5, 3.14.2, 4.2.4, 4.2.7, 4.6.4, 6, 8.3.1, 11.4.7, Property Insurance 12.1.2, 12.2.5 10.2.5, 11.4 Shop Drawings, Definition of PROTECTION OF PERSONS AND PROPERTY 3.12.1 10 Shop Drawings, Product Data and Samples Regulations and Laws 3.11, 3.12, 4.2.7 1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6, 9.6.4, Site, Use of 9.9.1, 10.2.2, 11.1, 11.4, 13.1, 13.4,13.5.1,13.5.2,13.6,14 3.13,6.1.1,6.2.1 Rejection of Work Site Inspections 3.5.1, 4.2.6, 12.2.1 1.2.2, 3.2.1, 3.3.3, 3.7.1, 4.2, 4.3.4, 9.4.2, 9.10.1, 13.5 Releases and Waivers of Liens Site Visits, Architect's 9.10.2 4.2.2, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2, 9.10.1, 13.5 Representations Special Inspections and Testing 1.5.2, 3.5.1, 3.12.6, 6.2.2, 8.2.1, 9.3.3, 9.4.2, 9.5.1, 9.8.2, 4.2.6, 12.2.1, 13.5 9.10.1 Specifications, Definition of the Representatives 1.1.6 2.1.1, 3.1.1, 3.9, 4.1.1, 4.2.1, 4.2.10, 5.1.1, 5.1.2, 13.2.1 Specifications, The Resolution of Claims and Disputes 1.1.1, 1.1.6, 1.1.7, 1.2.2, 1.6, 3.11, 3.12.10, 3.17 4.4, 4.5, 4.6 Statute of Limitations Responsibility for Those Performing the Work 4.6.3, 12.2.6, 13.7 3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1, 6.1.3, 6.2, 6.3, 9.5.1, 10 Stopping the Work Retainage 2.3, 4.3.6, 9.7, 10.3, 14.1 9.3.1, 9.6.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3 Stored Materials Review of Contract Documents and Field Conditions by 6.2.1, 9.3.2, 10.2.1.2, 10.2.4, 11.4.1.4 AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A20 ICON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 — Page #7 ' Subcontractor, Defmition of Termination of the Architect 5.1.1 4.1.3 SUBCONTRACTORS Termination of the Contractor 5 14.2.2 Subcontractors, Work by TERMINATION OR SUSPENSION OF THE CONTRACT 1.2.2, 3.3.2, 3.12.1, 4.2.3, 5.2.3, 5.3, 5.4, 9.3.1.2, 9.6.7 14 Subcontractual Relations Tests and Inspections 5.3, 5.4, 9.3.1.2, 9.6, 9.10 10.2.1, 11.4.7, 11.4.8, 14.1, 3.1.3, 3.3.3, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 14.2.1, 14.3.2 10.3.2, 11.4.1.1, 12.2.1,13.5 Submittals TIME 1.6, 3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3, 9.8, 8 9.9.1, 9.10.2, 9.10.3, 11.1.3 Time, Delays and Extensions of Subrogation, Waivers of 32.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1, 7.4.1, 6.1.1, 11.4.5, 11.4.7 7.5.1, 10.6.1,14.3.2 Substantial Completion Time Limits 4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9.10.3, 9.10.4.2, 2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11, 3.12.5, 3.15.1, 4.2, 12.2, 13.7 4.3, 4.4, 4.5, 4.6, 5.2, 5.3, 5.4, 6.2.4, 7.3, 7.4, 8.2, 9.2, 9.3.1, Substantial Completion, Definition of 9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10, 11.1.3, 11.4.1.5, 9.8.1 11.4.6, 11.4.10, 12.2, 13.5, 13.7, 14 Substitution of Subcontractors Time Limits on Claims 5.2.3, 5.2.4 4.3.2, 4.3.4, 4.3.8, 4.4, 4.5, 4.6 Substitution of Architect Title to Work 4.1.3 9.3.2, 9.3.3 Substitutions of Materials UNCOVERING AND CORRECTION OF WORK 3.4.2, 3.5.1, 7.3.7 12 Sub - subcontractor, Definition of Uncovering of Work 5.1.2 12.1 Subsurface Conditions Unforeseen Conditions 4.3.4 4.3.4, 8.3.1, 10.3 Successors and Assigns Unit Prices 13.2 4.3.9, 7.3.3.2 Superintendent Use of Documents 3.9, 10.2.6 1.1.1, 1.6, 2.2.5, 3.12.6, 5.3 Supervision and Construction Procedures Use of Site 1.2.2, 3:3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.33, 6.1.3, 6.2.4, 3.1 3, 6.1.1, 6.2.1 7.1.3, 7.3.6, 8.2, 8.3.1, 9.4.2, 10, 12, 14 Values, Schedule of Surety 9.2, 9.3.1 4.4.7, 5.4.12, 9.8.5, 9.10.2, 9.10.3, 14.2.2 Waiver of Claims by the Architect Surety, Consent of 13.4.2 9.10.2, 9.10.3 Waiver of Claims by the Contractor Surveys 4.3.10, 9.10.5, 11.4.7, 13.4.2 2.2.3 Waiver of Claims by the Owner Suspension by the Owner for Convenience 4.3.10, 9.9.3, 9.10.3, 9.10.4, 11.4.3, 11.4.5, 11.4.7, 12.2.2.1, 14.4 13.4.2, 14.2.4 Suspension of the Work Waiver of Consequential Damages 5.4.2, 14.3 4.3.10, 14.2.4 Suspension or Termination of the Contract Waiver of Liens 4.3.6, 5.4.1.1, 11.4.9, 14 9.10.2, 9.10.4 Taxes Waivers of Subrogation 3.6, 3.8.2.1,7.3.6.4 6.1.1, 11.4.5, 11.4.7 Termination by the Contractor Warranty 4.3.10, 14.1 3.5, 4.2.9, 4.3.5.3, 9.3.3, 9.8.4, 9.9.1, 9.10.4, 12.2.2, Termination by the Owner for Cause 13.7.1.3 4.3.10, 5.4.1.1, 14.2 Weather Delays AIA DOCUMENT A201- GENERAL CONDMONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #8 4.3.7.2 2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8, 4.6.5, 5.2.1, Work, Definition of 8.2.2, 9.7, 9.10, 10.2.2, 10.3, 11.1.3, 11.4.6, 12.2.2, 12.2.4, 1.1.3 13.3, 14 Written Consent Written Orders 1.6, 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2, 9.8.5, 1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1, 12.2, 13.5.2, 9.9.1, 9.10.2, 9.10.3, 11.4.1, 13.2, 13.4.2 14.3.1 Written Interpretations 4.2.11, 4.2.12, 4.3.6 Written Notice • • AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #9 ' ARTICLE 1 GENERAL PROVISIONS 1.1 BASIC DEFINITIONS 1.1.1 THE CONTRACT DOCUMENTS The Contract Documents consist of the Agreement between Owner and Contractor (hereinafter the Agreement), Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, other documents listed in the Agreement and Modifications issued after execution of the Contract. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the Architect. Unless specifically enumerated in the Agreement, the Contract Documents do not include other documents such as bidding requirements (advertisement or invitation to bid, Instructions to Bidders, sample forms, the Contractor's bid or portions of Addenda relating to bidding requirements) . 1.1.2 THE CONTRACT The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Architect and Contractor, (2) between the Owner and a Subcontractor or Sub - subcontractor, (3) between the Owner and Architect or (4) between any persons or entities other than the Owner and Contractor. The Architect shall, however, be entitled to performance and enforcement of obligations under the Contract intended to facilitate performance of the Architect's duties. 1.1.3 THE WORK The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. 1.1.4 THE PROJECT The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the Owner or by separate contractors. 1.1.5 THE DRAWINGS The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of - the Work, generally including plans, elevations, sections, details, schedules and diagrams. 1.1.6 THE SPECIFICATIONS The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. 1.1.7 THE PROJECT RNANUAL The Project Manual is a volume assembled for the Work which may include the bidding requirements, sample forms, Conditions of the Contract and Specifications. 1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS 1.2.1 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. 1.2.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. 1.2.3 Unless otherwise stated in the Contract Documents, words which have well -known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. 1.3 CAPITALIZATION AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #10 1.3.1 Terms capitalized in these General Conditions include those which are (1) specifically defined, (2) the titles of numbered articles and identified references to Paragraphs, Subparagraphs and Clauses in the document or (3) the titles of other documents published by the American Institute of Architects. 1.4 INTERPRETATION 1.4.1 In the interest of brevity the Contract Documents frequently omit modifying words such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. 1.5 EXECUTION OF CONTRACT DOCUMENTS 1.5.1 The Contract Documents shall be signed by the Owner and Contractor. If either the Owner or Contractor or both do not sign all the Contract Documents, the Architect shall identify such unsigned Documents upon request. 1.5.2 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. 1.6 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE 1.6.1 The Drawings, Specifications and other documents, including those in electronic form, prepared by the Architect and the Architect's consultants are Instruments of Service through which the Work to be executed by the Contractor is described. The Contractor may retain one record set. Neither the Contractor nor any Subcontractor, Sub - subcontractor or material or equipment supplier shall own or claim a copyright in the Drawings, Specifications and other documents prepared by the Architect or the Architect's consultants, and unless otherwise indicated the Architect and the Architect's consultants shall be deemed the authors of them and will retain all common law, statutory and other reserved rights, in addition to the copyrights. All copies of Instruments of Service, except the Contractor's record set, shall be returned or suitably accounted for to the Architect, on request, upon completion of the Work. The Drawings, Specifications and other documents prepared by the Architect and the Architect's consultants, and copies thereof furnished to the Contractor, are for use solely with respect to this Project. They are not to be used by the Contractor or any Subcontractor, Sub - subcontractor or material or equipment supplier on other projects or for additions to this Project outside the scope of the Work without the specific written consent of the Owner, Architect and the Architect's consultants. The Contractor, Subcontractors, Sub - subcontractors and material or equipment suppliers are authorized to use and reproduce applicable portions of the Drawings, Specifications and other documents prepared by the Architect and the Architect's consultants appropriate to and for use in the execution of their Work under the Contract Documents. All copies made under this authorization shall bear the statutory copyright notice, if any, shown on the Drawings, Specifications and other documents prepared by the Architect and the Architect's consultants. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of the Architect's or Architect's consultants' copyrights or other reserved rights. ARTICLE 2 OWNER 2.1 GENERAL 2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner's approval or authorization. Except as otherwise provided in Subparagraph 4.2.1, the Architect does not have such authority. The term "Owner" means the Owner or the Owner's authorized representative. 2.1.2 The Owner shall furnish to the Contractor within fifteen days after receipt of a written request, information necessary and relevant for the Contractor to evaluate, give notice of or enforce mechanic's lien rights. Such information shall include a correct statement of the record legal title to the property on which the Project is located, usually referred to as the site, and the Owner's interest therein. 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER 2.2.1 The Owner shall, at the written request of the Contractor, prior to commencement of the Work and thereafter, furnish to the Contractor reasonable evidence that fmancial arrangements have been made to fulfill the Owner's obligations under the AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #11 Contract. Furnishing of such evidence shall be a condition precedent to commencement or continuation of the Work. After such evidence has been furnished, the Owner shall not materially vary such financial arrangements without prior notice to the Contractor. 2.2.2 Except for permits and fees, including those required under Subparagraph 3.7.1, which are the responsibility of the Contractor under the Contract Documents, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities. 2.2.3 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a legal description of the site. The Contractor shall be entitled to rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work. 2.2.4 Information or services required of the Owner by the Contract Documents shall be furnished by the Owner with reasonable promptness. Any other information or services relevant to the Contractor's performance of the Work under the Owner's control shall be furnished by the Owner after receipt from the Contractor of a written request for such information or services. 2.2.5 Unless otherwise provided in the Contract Documents, the Contractor will be furnished, free of charge, such copies of Drawings and Project Manuals as are reasonably necessary for execution of the Work. 2.3 OWNER'S RIGHT TO STOP THE WORK 2.3.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 12.2 or persistently fails to carry out Work in accordance with the Contract Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except to the extent required by Subparagraph 6.1.3. 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK 2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven -day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may after such seven -day period give the Contractor a second written notice to correct such deficiencies within a three -day period. If the Contractor within such three -day period after receipt of such second notice fails to commence and continue to correct any deficiencies, the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from.payments then or thereafter due the Contractor the reasonable cost of correcting such deficiencies, including Owner's expenses and compensation for the Architect's additional services made necessary by such default, neglect or failure. Such action by the Owner and amounts charged to the Contractor are both subject to prior approval of the Architect. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner. ARTICLE 3 CONTRACTOR 3.1 GENERAL 3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Contractor" means the Contractor or the Contractor's authorized representative. 3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents. 3.1.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Contractor. 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR 3.2.1 Since the Contract Documents are complementary, before starting each portion of the Work, the Contractor shall AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #12 Carefully study and compare the various Drawings and other Contract Documents relative to that portion of the Work, as well as the information furnished by the Owner pursuant to Subparagraph 2.2.3, shall take field measurements of any existing conditions related to that portion of the Work and shall observe any conditions at the site affecting it. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, any errors, inconsistencies or omissions discovered by the Contractor shall be reported promptly to the Architect as a request for information in such form as the Architect may require. 3.2.2 Any design errors or omissions noted by the Contractor during this review shall be reported promptly to the Architect, but it is recognized that the Contractor's review is made in the Contractor's capacity as a contractor and not as a licensed design professional unless otherwise specifically provided in the Contract Documents. The Contractor is not required to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations, but any nonconformity discovered by or made known to the Contractor shall be reported promptly to the Architect. 3.2.3 If the Contractor believes that additional cost or time is involved because of clarifications or instructions issued by the Architect in response to the Contractor's notices or requests for information pursuant to Subparagraphs 3.2.1 and 3.2.2, the Contractor shall make Claims as provided in Subparagraphs 4.3.6 and 4.3.7. If the Contractor fails to perform the obligations of Subparagraphs 3.2.1 and 3.2.2, the Contractor shall pay such costs and damages to the Owner as would have been avoided if the Contractor had performed such obligations. The Contractor shall not be liable to the Owner or Architect for damages resulting from errors, inconsistencies or omissions in the Contract Documents or for differences between field measurements or conditions and the Contract Documents unless the Contractor recognized such error, inconsistency, omission or difference and knowingly failed to report it to the Architect. 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES 3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner and Architect and shall not proceed with that portion of the Work without further written instructions from the Architect. If the Contractor is then instructed to proceed with the required means, methods, techniques, sequences or procedures without acceptance of changes proposed by the Contractor, the Owner shall be solely responsible for any resulting Loss or damage. 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors. 3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. 3.4 LABOR AND RNATERIALS 3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. 3.4.2 The Contractor may make substitutions only with the consent of the Owner, after evaluation by the Architect and in accordance with a Change Order. 3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the ALA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #13 3.5 WARRANTY 3.5.1 The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Architect, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. 3.6 TAXES 3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the Contractor which are legally enacted when bids are received or negotiations concluded, whether or not yet effective or merely scheduled to go into effect. 3.7 PERMITS, FEES AND NOTICES 3.7.1 Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the building permit and other permits and governmental fees, licenses and inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract and which are legally required when bids are received or negotiations concluded. 3.7.2 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities applicable to performance of the Work. 3.7.3 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are at variance therewith, the Contractor shall promptly notify the Architect and Owner in writing, and necessary changes shall be accomplished by appropriate Modification. 3.7.4 If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, and rules and regulations without such notice to the Architect and Owner, the Contractor shall assume appropriate responsibility for such Work and shall bear the costs attributable to correction. 3.8 ALLOWANCES 3.8.1 The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct, but the Contractor shall not be required to employ persons or entities to whom the Contractor has reasonable objection. 3.8.2 Unless otherwise provided in the Contract Documents: . 1 allowances shall cover the cost to the Contractor of materials and equipment delivered at the site and all required taxes, less applicable trade discounts; .2 Contractor's costs for unloading and handling at the site, labor, installation costs, overhead, profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in the allowances; . 3 whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Clause 3.8.2.1 and (2) changes in Contractor's costs under Clause 3.8.2.2. 3.8.3 Materials and equipment under an allowance shall be selected by the Owner in sufficient time to avoid delay in the Work. AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #14 3.9 SUPERINTENDENT 3.9.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case. 3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES 3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner's and Architect's information a Contractor's construction schedule for the Work. The schedule shall not exceed time limits current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work. 3.10.2 The Contractor shall prepare and keep current, for the Architect's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect reasonable time to review submittals. 3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the Owner and Architect. 3.11 DOCUMENTS AND SAMPLES AT THE SITE 3.11.1 The Contractor shall maintain at the site for the Owner one record copy of the Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently to record field changes and selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to the Architect and shall be delivered to the Architect for submittal to the Owner upon completion of the Work. 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES 3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub - subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work. 3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. 3.12.3 Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. 3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect is subject to the limitations of Subparagraph 4.2.7. Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents. Submittals which are not required by the Contract Documents may be returned by the Architect without action. 3.12.5 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and approved by the Contractor may be returned by the Architect without action. 3.12.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #15 3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Architect. 3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar submittals by the Architect's approval thereof. 3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by the Architect on previous submittals. In the absence of such written notice the Architect's approval of a resubmission shall not apply to such revisions. 3.12.10 The Contractor shall not be required to provide professional services which constitute the practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be required to provide professional services in violation of applicable law. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Owner and the Architect will specify all performance and design criteria that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Architect. The Owner and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided the Owner and Architect have specified to the Contractor all performance and design criteria that such services must satisfy. Pursuant to this Subparagraph 3.12.10, the Architect will review, approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. 3.13 USE OF SITE 3.13.1 The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. 3.14 CUTTING AND PATCHING 3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. 3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the Owner or a separate contractor except with written consent of the Owner and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. 3.15 CLEANING UP 3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove from and about the Project waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus materials. 3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and the cost thereof AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #16 shall be charged to the Contractor. 3.16 ACCESS TO WORK 3.16.1 The Contractor shall provide the Owner and Architect access to the Work in preparation and progress wherever located. 3.17 ROYALTIES, PATENTS AND COPYRIGHTS 3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the Owner and Architect harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents or where the copyright violations are contained in Drawings, Specifications or other documents prepared by the Owner or Architect. However, if the Contractor has reason to believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall be responsible for such Loss unless such information is promptly furnished to the Architect. 3.18 INDEMNIFICATION 3.18.1 To the fullest extent permitted by law and to the extent claims, damages, losses or expenses are not covered by Project Management Protective Liability insurance purchased by the Contractor in accordance with Paragraph 11.3, the Contractor shall indemnify and hold harmless the Owner, Architect, Architect's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Paragraph 3.18. 3.18.2 In claims against any person or entity indemnified under this Paragraph 3.18 by an employee of the. Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Subparagraph 3.18.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts. ARTICLE 4 ADMINISTRATION OF THE CONTRACT 4.1 ARCHITECT 4.1.1 The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Architect" means the Architect or the Architect's authorized representative. 4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents shall not be restricted, modified or extended without written consent of the Owner, Contractor and Architect. Consent shall not be unreasonably withheld. 4.1.3 If the employment of the Architect is terminated, the Owner shall employ a new Architect against whom the Contractor has no reasonable objection and whose status under the Contract Documents shall be that of the former Architect. 4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT 4.2.1 The Architect will provide administration of the Contract as described in the Contract Documents, and will be an Owner's representative (1) during construction, (2) until fmal payment is due and (3) with the Owner's concurrence, from time to time during the one -year period for correction of Work described in Paragraph 12.2. The Architect will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents, unless otherwise modified in writing in accordance with other provisions of the Contract. AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #17 4.2.2 The Architect, as a representative of the Owner, will visit the site at intervals appropriate to the stage of the Contractor's operations (1) to become generally familiar with and to keep the Owner informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the Owner against defects and deficiencies in the Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on -site inspections to check the quality or quantity of the Work. The Architect will neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities under the Contract Documents, except as provided in Subparagraph 3.3.1. 4.2.3 The Architect will not be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. 4.2.4 Communications Facilitating Contract Administration. Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract. Communications by and with the Architect's consultants shall be through the Architect. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors shall be through the Owner. 4.2.5 Based on the Architect's evaluations of the Contractor's Applications for Payment, the Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. 4.2.6 The Architect will have authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable, the Architect will have authority to require inspection or testing of the Work in accordance with Subparagraphs 13.5.2 and 13.5.3, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons or entities performing portions of the Work. 4.2.7 The Architect will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action will be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the Owner, Contractor or separate contractors, while allowing sufficient time in the Architect's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review of the Contractor's submittals shall not relieve the Contractor of the obligations under Paragraphs 3.3, 3.5 and 3.12. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. 4.2.8 The Architect will prepare Change Orders and Construction Change Directives, and may authorize minor changes in the Work as provided in Paragraph 7.4. 4.2.9 The Architect will conduct inspections to determine the date or dates of Substantial Completion and the date of fmal completion, will receive and forward to the Owner, for the Owner's review and records, written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. 4.2.10 If the Owner and Architect agree, the Architect will provide one or more project representatives to assist in carrying out the Architect's responsibilities at the site. The duties, responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents. AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #18 4.2.11 The Architect will interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request of either the Owner or Contractor. The Architect's response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness. If no agreement is made concerning the time within which interpretations required of the Architect shall be furnished in compliance with this Paragraph 4.2, then delay shall not be recognized on account of failure by the Architect to furnish such interpretations until 15 days after written request is made for them. 4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and initial decisions, the Architect will endeavor to secure faithful performance by both Owner and Contractor, will not show partiality to either and will not be liable for results of interpretations or decisions so rendered in good faith. 4.2.13 The Architect's decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents. 4.3 CLAIMS ARID DISPUTES 4.3.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract. Claims must be initiated by written notice. The responsibility to substantiate Claims shall rest with the party making the Claim. 4.3.2 Time Limits on Claims. Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. Claims must be initiated by written notice to the Architect and the other party. 4.3.3 Continuing Contract Performance. Pending final resolution of a Claim except as otherwise agreed in writing or as provided in Subparagraph 9.7.1 and Article 14, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents. 4.3.4 Claims for Concealed or Unknown Conditions. If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than 21 days after first observance of the conditions. The Architect will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Contractor's cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Architect determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Architect shall so notify the Owner and Contractor in writing, stating the reasons. Claims by either party in opposition to such determination must be made within 21 days after the Architect has given notice of the decision. If the conditions encountered are materially different, the Contract Sum and Contract Time shall be equitably adjusted, but if the Owner and Contractor cannot agree on an adjustment in the Contract Sum or Contract Time, the adjustment shall be referred to the Architect for initial determination, subject to further proceedings pursuant to Paragraph 4.4. 4.3.5 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Paragraph 10.6. 4.3.6 If the Contractor believes additional cost is involved for reasons including but not limited to (1) a written interpretation from the Architect, (2) an order by the Owner to stop the Work where the Contractor was not at fault, (3) a written order for a minor change in the Work issued by the Architect, (4) failure of payment by the Owner, (5) termination of the Contract by the Owner, (6) Owner's suspension or (7) other reasonable grounds, Claim shall be filed in accordance with this Paragraph 4.3. AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #19 4.3.7 Claims for Additional Time 4.3.7.1 If the Contractor wishes to make Claim for an increase in the Contract Time, written notice as provided herein shall be given. The Contractor's Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of a continuing delay only one Claim is necessary. 4.3.7.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated and had an adverse effect on the scheduled construction. 4.3.8 Injury or Damage to Person or Property. If either party to the Contract suffers injury or damage to person or property because of an act or omission of the other party, or of others for whose acts such party is legally responsible, written notice of such injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate the matter. 4.3.9 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so that application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or Contractor, the applicable unit prices shall be equitably adjusted. 4.3.10 Claims for Consequential Damages. The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes: .1 damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and .2 damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Article 14. Nothing contained in this Subparagraph 4.3.10 shall be deemed to preclude an award of liquidated direct damages, when applicable, in accordance with the requirements of the Contract Documents. 4.4 RESOLUTION OF CLAIMS AND DISPUTES 4.4.1 Decision of Architect. Claims, including those alleging an error or omission by the Architect but excluding those arising under Paragraphs 10.3 through 10.5, shall be referred initially to the Architect for decision. An initial decision by the Architect shall be required as a condition precedent to mediation, arbitration or litigation of all Claims between the Contractor and Owner arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Architect with no decision having been rendered by the Architect. The Architect will not decide disputes between the Contractor and persons or entities other than the Owner. 4.4.2 The Architect will review Claims and within ten days of the receipt of the Claim take one or more of the following actions: (1) request additional supporting data from the claimant or a response with supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve the Claim, (4) suggest a compromise, or (5) advise the parties that the Architect is unable to resolve the Claim if the Architect lacks sufficient information to evaluate the merits of the Claim or if the Architect concludes that, in the Architect's sole discretion, it would be inappropriate for the Architect to resolve the Claim. 4.4.3 In evaluating Claims, the Architect may, but shall not be obligated to, consult with or seek information from either party or from persons with special knowledge or expertise who may assist the Architect in rendering a decision. The Architect may request the Owner to authorize retention of such persons at the Owner's expense. 4.4.4 If the Architect requests a party to provide a response to a Claim or to furnish additional supporting data, such party shall respond, within ten days after receipt of such request, and shall either provide a response on the requested supporting data, advise AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- age #20 the Architect when the response or supporting data will be furnished or advise the Architect that no supporting data will be furnished. Upon receipt of the response or supporting data, if any, the Architect will either reject or approve the Claim in whole or in part. 4.4.5 The Architect will approve or reject Claims by written decision, which shall state the reasons therefor and which shall notify the parties of any change in the Contract Sum or Contract Time or both. The approval or rejection of a Claim by the Architect shall be fmal and binding on the parties but subject to mediation and arbitration. 4.4.6 When a written decision of the Architect states that (1) the decision is fmal but subject to mediation and arbitration and (2) a demand for arbitration of a Claim covered by such decision must be made within 30 days after the date on which the party making the demand receives the fmal written decision, then failure to demand arbitration within said 30 days' period shall result in the Architect's decision becoming fmal and binding upon the Owner and Contractor. If the Architect renders a decision after arbitration proceedings have been initiated, such decision may be entered as evidence, but shall not supersede arbitration proceedings unless the decision is acceptable to all parties concerned. 4.4.7 Upon receipt of a Claim against the Contractor or at any time thereafter, the Architect or the Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Contractor's default, the Architect or the Owner may, but is not obligated to, notify the surety and request the surety's assistance in resolving the controversy. 4.4.8 If a Claim relates to or is the subject of a mechanic's lien, the party asserting such Claim may proceed in accordance • • applicable law to comply with the lien notice or filing deadlines prior to res. tion of the Claim by the Architect, by ation or by arbitration. CONTRACTOR S SIGNATURE A - 4.5 MEDIATION Deleted Owner's signature __W — z -- -- ' 4.5:l y Claim arising out of or related to the Contract, except Claims relaf :esth - • effect and except those waived as provided for ; • .aragraphs 4.3.10, 9.10.4 and 9.10.5 shall, after initial decisio + e Architect or 30 days after submission of the Claim to the Arc - be subject to mediation as a condition precedent t.:+ .itration or the institution of legal or equitable proceedings by either party. 4.5.2 The parties shall endeavor to resolve the . 1 s b ediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Me... o • les of the American Arbitration Association currently in effect. Request for mediation shall be filed in writing . 1 e other party to . - ontract and with the American Arbitration Association. The request may be made concurrently • , 1 e filing of a demand for arbitr. • • + but, in such event, mediation shall proceed in advance of arbitration or legal or e • • • le proceedings, which shall be stayed pending - • iation for a period of 60 days from the date of filing, unless stayed f. . onger period by agreement of the parties or court order. 4.5.3 The p. • ' s shall share the mediator's fee and any filing fees equally. The mediation shall be held in the . - - where the Project is . ated, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforce -• as se = ent agreements in any court having judsdiction thereof. contractor s signatur- A „ 6 ARBITRATION Deleted: Owner's Signature /P�.'"!�' :_,,max 4.6. ' + Claim arising out of or related to the Contract, except Claims re' . -• o ae7 ' ect and except those waived as provided for in .. • . a•• •phs 4.3.10, 9.10.4 and 9.10.5, shall, after decision by th • c itect or 30 days after submission of the Claim to the Architect, be s i . • - t to arbitration. Prior to arbitration, the pa .: all endeavor to resolve disputes by mediation in accordance with the provisions of P. . = - . 4.5. 4.6.2 Claims not resolved by mediation shall be • - e. . itration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction In. : Arbitration Rules o - merican Arbitration Association currently in effect. The demand for arbitration shall . - ed in writing with the other party to • •ntract and with the American Arbitration Association, and a copy shal fled with the Architect. 4.6.3 A • - - . d for arbitration shall be made within the time limits specified in Subparagraphs 4.4.6 and • ... . applicable, and • .1 er cases within a reasonable time after the Claim has arisen, and in no event shall it be made after the da - -n AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #21 institution of legal or equitable proceedings based on such Claim would be barred by the •p 'cable statute of • iations as determined pursuant to Paragraph 13.7. C Q N T R A - a To Q : ' DELETED w ,vER�- 4.6.4 Limitation • Consolidation or Joinder. No arbitration arising out of or relating to Con•: all include, by consolidation or joinder or :.• other manner, the Architect, the Architect's employees or consultants ept by written consent containing specific reference to the eement and signed by the Architect, Owner, Contracto : • any other person or entity sought to be joined. No arbitration shall inc . - b consolidation or joinder or in any oth - anner, parties other than the Owner, Contractor, a separate contractor as described in • - 6 and other persons subs . • . .11y involved in a common question of fact or law whose presence is required if complete relief is to • - : corded in • • • • ation. No person or entity other than the Owner, Contractor or a separate contractor as described in Article 6 shall be . ed as an original third party or additional third party to an arbitration whose interest or responsibility is insubstantial. , ent to al.. • :. ion involving an additional person or entity shall not constitute consent to arbitration of a Claim not des -d therein or with a per . • or entity not named or described therein. The foregoing agreement to arbitrate and other a? - ments to arbitrate with an addition. •= on or entity duly consented to by parties to the Agreement shall be specifical forceable under applicable law in any court having •• • diction thereof. 4.6.5 Claims and Timely _. ertion of Claims. The party filing a notice of demand for arbitration must asse he demand all Claims then known • at party on which arbitration is permitted to be demanded. 4.6.6 J ♦ ment on Final Award. The award rendered by the arbitrator or arbitrators shall be final, and judgment may be ent- - • upon it in accordance with applicable law in any court having jurisdiction thereof. ARTICLE 5 SUBCONTRACTORS 5.1 DEFINITIONS 5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. 5.1.2 A Sub - subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site. The term "Sub- subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub - subcontractor or an authorized representative of the Sub - subcontractor. 5.2 AWARD OF SUBCONTRACTS OTHER CONTRACTS FOR PORTIONS OF THE WORK 5.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the Owner through the Architect the names of persons or entities (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work. The Architect will promptly reply to the Contractor in writing stating whether or not the Owner or the Architect, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the Owner or Architect to reply promptly shall constitute notice of no reasonable objection. 5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. 5.2.3 If the Owner or Architect has reasonable objection to a person or entity proposed by the Contractor, the Contractor shall propose another to whom the Owner or Architect has no reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute Subcontractor's Work. However, no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting names as required. 5.2.4 The Contractor shall not change a Subcontractor, person or entity previously selected if the Owner or Architect makes reasonable objection to such substitute. AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #22 5.3 SUBCONTRACTUAL RELATIONS 5.3.1 By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes toward the Owner and Architect. Each subcontract agreement shall preserve and protect the rights of the Owner and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies and redress against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub - subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub - subcontractors. 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS 5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner provided that: .1 assignment is effective only after termination of the Contract by the Owner for cause pursuant to Paragraph 14.2 and only for those subcontract agreements which the Owner accepts by notifying the Subcontractor and Contractor in writing; and .2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. 5.4.2 Upon such assignment, if the Work has been suspended for more than 30 days, the Subcontractor's compensation shall be equitably adjusted for increases in cost resulting from the suspension. ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS 6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the site under Conditions of the Contract identical or substantially similar to these including those portions related to insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor shall make such Claim as provided in Paragraph 4.3. 6.1.2 When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner - Contractor Agreement. 6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Contractor shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then_ constitute the schedules to be used by the Contractor, separate contractors and the Other until subsequently revised. 6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the Contractor under the Conditions of the Contract, including, without excluding others, those stated in Article 3, this Article 6 and Articles 10, 11 and 12. 6.2 MUTUAL RESPONSIBILITY 6.2.1 The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #23 e � their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. 6.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. 6.2.3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner which are payable to a separate contractor because of delays, improperly timed activities or defective construction of the Contractor. The Owner shall be responsible to the Contractor for costs incurred by the Contractor because of delays, improperly timed activities, damage to the Work or defective construction of a separate contractor. 6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors as provided in Subparagraph 10.2.5. 6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Subparagraph 3.14. 6.3 OWNER'S RIGHT TO CLEAN UP 6.3.1 If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner may clean up and the Architect will allocate the cost among those responsible. ARTICLE 7 CHANGES IN THE WORK 7.1 GENERAL 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work, subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents. 7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and Architect; a Construction Change Directive requires agreement by the Owner and Architect and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Architect alone. 9.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive. or order for a minor change in the Work. 7.2 CHANGE ORDERS 7.2.1 A Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor and Architect, stating their agreement upon all of the following: . 1 change in the Work; . 2 the amount of the adjustment, if any, in the Contract Sum; and . 3 the extent of the adjustment, if any, in the Contract Time. 7.2.2 Methods used in determining adjustments to the Contract Sum may include those listed in Subparagraph 7.3.3. 7.3 CONSTRUCTION CHANGE DIRECTIVES AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #24 • 7.3.1 A Construction Change Directive is a written order prepared by the Architect and signed by the Owner and Architect, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly. 7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. 7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall be based on one of the following methods: . 1 mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; . 2 unit prices stated in the Contract Documents or subsequently agreed upon; . 3 cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or . 4 as provided in Subparagraph 7.3.6. 7.3.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Architect of the Contractor's agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. 7.3.5 A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order. 7.3.6 If the Contractor does not respond promptly or disagrees with the method for adjustment in the Contract Sum, the method and the adjustment shall be determined by the Architect on the basis of reasonable expenditures and savings of those performing the Work attributable to the change, including, in case of an increase in the Contract Sum, a reasonable allowance for overhead and profit. In such case, and also under Clause 7.3.3.3, the Contractor shall keep and present, in such form as the Architect may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Contract Documents, costs for the purposes of this Subparagraph 7.3.6 shall be limited to the following: . 1 costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers' compensation insurance; . 2 costs of materials, supplies and equipment, including cost of transportation, whether incorporated or consumed; . 3 rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; . 4 costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the Work; and .5 additional costs of supervision and field office personnel directly attributable to the change. 7.3.7 The amount of credit to be allowed by the Contractor to the Owner for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #25 • 7.3.8 Pending final determination of the total cost of a Construction Change Directive to the Owner, amounts not in dispute for such changes in the Work shall be included in Applications for Payment accompanied by a Change Order indicating the parties' agreement with part or all of such costs. For any portion of such cost that remains in dispute, the Architect will make an interim determination for purposes of monthly certification for payment for those costs. That determination of cost shall adjust the Contract Sum on the same basis as a Change Order, subject to the right of either party to disagree and assert a claim in accordance with Article 4. 7.3.9 When the Owner and Contractor agree with the determination made by the Architect concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon the adjustments, such agreement shall be effective immediately and shall be recorded by preparation and execution of an appropriate Change Order. 7.4 MINOR CHANGES IN THE WORK 7.4.1 The Architect will have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on the Owner and Contractor. The Contractor shall carry out such written orders promptly. ARTICLE 8 TIME 8.1 DEFINITIONS 8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. 8.1.2 The date of commencement of the Work is the date established in the Agreement. 8.1.3 The date of Substantial Completion is the date certified by the Architect in accordance with Paragraph 9.8. 8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. 8.2 PROGRESS AND COMPLETION 8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreement the Contractor confirms that the Contract Time is a reasonable period for performing the Work. 8.2.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely commence operations on the site or elsewhere prior to the effective date of insurance required by Article 11 to be furnished by the Contractor and Owner. The date of commencement of the Work shall not be changed by the effective date of such insurance. Unless the date of commencement is established by the Contract Documents or a notice to proceed given by the Owner, the Contractor shall notify the Owner in writing not less than five days or other agreed period before commencing the Work to permit the timely filing of mortgages, mechanic's liens and other security interests. 8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. 8.3 DELAYS AND EXTENSIONS OF TIME 8.3.1 If the Contractor is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending mediation and arbitration, or by other causes which the Architect determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect may determine. 8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Paragraph 4.3. AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #26 8.3.3 This Paragraph 8.3 does not preclude recovery of damages for delay by either party under other provisions of the Contract Documents. ARTICLE 9 PAYMENTS AND COMPLETION 9.1 CONTRACT SUM 9.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable by the Owner to the Contractor for performance of the Work under the Contract Documents. 9.2 SCHEDULE OF VALUES 9.2.1 Before the first Application for Payment, the Contractor shall submit to the Architect a schedule of values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Contractor's Applications for Payment. 9.3 APPLICATIONS FOR PAYMENT 9.3.1 At least ten days before the date established for each progress payment, the Contractor shall submit to the Architect an itemized Application for Payment for operations completed in accordance with the schedule of values. Such application shall be notarized, if required, and supported by such data substantiating the Contractor's right to payment as the Owner or Architect may require, such as copies of requisitions from Subcontractors and material suppliers, and reflecting retainage if provided for in the Contract Documents. 9.3.1.1 As provided in Subparagraph 7.3.8, such applications may include requests for payment on account of changes in the Work which have been properly authorized by Construction Change Directives, or by interim determinations of the Architect, but not yet included in Change Orders. 9.3.1.2 Such applications may not include requests for payment for portions of the Work for which the Contractor does not intend to pay to a Subcontractor or material supplier, unless such Work has been performed by others whom the Contractor intends to pay. 9.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and equipment or otherwise protect the Owner's interest, and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. 9.3.3 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Contractor's knowledge, information and belief, be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Work. 9.4 CERTIFICATES FOR PAYMENT 9.4.1 The Architect will, within seven days after receipt of the Contractor's Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect determines is properly due, or notify the Contractor and Owner in writing of the Architect's reasons for withholding certification in whole or in part as provided in Subparagraph 9.5.1. 9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the Owner, based on the Architect's evaluation of the Work and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the quality of the Work is in accordance AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/ 1/2001 -Page #27 with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is . entitled to payment in the amount certified. However, the issuance of a Certificate for Payment will not be a representation that the Architect has (1) made exhaustive or continuous on -site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment, or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 9.5 DECISIONS TO WITHHOLD CERTIFICATION 9.5.1 The Architect may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner, if in the Architect's opinion the representations to the Owner required by Subparagraph 9.4.2 cannot be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and Owner as provided in Subparagraph 9.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the Owner. The Architect may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Architect's opinion to protect the Owner from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Subparagraph 3.3.2, because of: . 1 defective Work not remedied; . 2 third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the Owner is provided by the Contractor; . 3 failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; . 4 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; . 5 damage to the Owner or another contractor; . 6 reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or . 7 persistent failure to carry out the Work in accordance with the Contract Documents. 9.5.2 When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld. 9.6 PROGRESS PAYMENTS 9.6.1 After the Architect has issued a Certificate for Payment, the Owner shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect. 9.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of. such Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub - subcontractors in a similar manner. 9.6.3 The Architect will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by the Architect and Owner on account of portions of the Work done by such Subcontractor. AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #28 9.6.4 Neither the Owner nor Architect shall have an obligation to pay or to see to the payment of money to a Subcontractor except as may otherwise be required by law. 9.6.5 Payment to material suppliers shall be treated in a manner similar to that provided in Subparagraphs 9.6.2, 9.6.3 and 9.6.4. 9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not in accordance with the Contract Documents. 9.6.7 Unless the Contractor provides the Owner with a payment bond in the full penal sum of the Contract Sum, payments received by the Contractor for Work properly performed by Subcontractors and suppliers shall be held by the Contractor for those Subcontractors or suppliers who performed Work or furnished materials, or both, under contract with the Contractor for which payment was made by the Owner. Nothing contained herein shall require money to be placed in a separate account and not commingled with money of the Contractor, shall create any fiduciary Liability or tort liability on the part of the Contractor for breach of trust or shall entitle any person or entity to an award of punitive damages against the Contractor for breach of the requirements of this provision. 9.7 FAILURE OF PAYMENT 9.7.1 If the Architect does not issue a Certificate for Payment, through no fault of the Contractor, within seven days after receipt of the Contractor's Application for Payment, or if the Owner does not pay the Contractor within seven days after the date established in the Contract Documents the amount certified by the Architect or awarded by arbitration, then the Contractor may, upon seven additional days' written notice to the Owner and Architect, stop the Work until payment of the amount owing has been received. The Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Contractor's reasonable costs of shut -down, delay and start-up, plus interest as provided for in the Contract Documents. 9.8 SUBSTANTIAL COMPLETION 9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use. 9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor shall prepare and submit to the Architect a comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. 9.8.3 Upon receipt of the Contractor's list, the Architect will make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Architect's inspection discloses any item, whether or not included on the Contractor's list, which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended use, the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Architect. In such case, the Contractor shall then submit a request for another inspection by the Architect to determine Substantial Completion. 9.8.4 When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. 9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if any, the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents. AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the ALA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #29 9.9 PARTIAL OCCUPANCY OR USE 9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under Clause 11.4.1.5 and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion substantially complete, the Contractor shall prepare and submit a list to the Architect as provided under Subparagraph 9.8.2. Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no agreement is reached, by decision of the Architect. 9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. 9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 9.10 FINAL COMPLETION AND FINAL PAYMENT 9.10.1 Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a fmal Application for Payment, the Architect will promptly make such inspection and, when the Architect finds the Work acceptable under the Contract Documents and the Contract fully performed, the Architect will promptly issue a fmal Certificate for Payment stating that to the best of the Architect's knowledge, information and belief, and on the basis of the Architect's on -site visits and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in the final Certificate is due and payable. The Architect's final Certificate for Payment will constitute a further representation that conditions listed in Subparagraph 9.10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled. 9.10.2 Neither fmal payment nor any remaining retained percentage shall become due until the Contractor submits to the Architect (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after fmal payment is currently in effect and will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner, (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents, (4) consent of surety, if any, to final payment and (5), if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner all money that the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees. 9.10.3 If, after Substantial Completion of the Work, fmal completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting fmal completion, and the Architect so confirms, the Owner shall, upon application by the Contractor and certification by the Architect, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect prior to certification of such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 9.10.4 The making of fmal payment shall constitute a waiver of Claims by the Owner except those arising from: .1 Liens, Claims, security interests or encumbrances arising out of the Contract and unsettled; AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #30 .2 failure of the Work to comply with the requirements of the Contract Documents; or .3 terms of special warranties required by the Contract Documents. 9.10.5 Acceptance of fmal payment by the Contractor, a Subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY 10.1 SAFETY PRECAUTIONS AND PROGRAMS 10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. 10.2 SAFETY OF PERSONS AND PROPERTY 10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: . 1 employees on the Work and other persons who may be affected thereby; . 2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub - subcontractors; and . 3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 10.2.2 The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. 10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. 10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. 10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Clauses 10.2.1.2 and 10.2.1.3 caused in whole or in part by the Contractor, a Subcontractor, a Sub - subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Clauses 10.2.1.2 and 10.2.1.3, except damage or loss attributable to acts or omissions of the Owner or Architect or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Paragraph 3.18. 10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect. 10.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its safety. 10.3 HAZARDOUS MATERIALS AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the 'violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #31 10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner and Architect in writing. 10.3.2 The Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Contractor and, in the event such material or substance is found to be present, to verify that it has been rendered harmless. Unless otherwise required by the Contract Documents, the Owner shall furnish in writing to the Contractor and Architect the names and qualifications of persons or entities who are to perform tests verifying the presence or absence of such material or substance or who are to perform the task of removal or safe containment of such material or substance. The Contractor and the Architect will promptly reply to the Owner in writing stating whether or not either has reasonable objection to the persons or entities proposed by the Owner. If either the Contractor or Architect has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom the Contractor and the Architect have no reasonable objection. When the material or substance has been rendered harmless, Work in the affected area shall resume upon written agreement of the Owner and Contractor. The Contract Time shall be extended appropriately and the Contract Sum shall be increased in the amount of the Contractor's reasonable additional costs of shut -down, delay and start-up, which adjustments shall be accomplished as provided in Article 7. 10.3.3 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor, Subcontractors, Architect, Architect's consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work in the affected area if in fact the material or substance presents the risk of bodily injury or death as described in Subparagraph 10.3.1 and has not been rendered harmless, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) and provided that such damage, loss or expense is not due to the sole negligence of a party seeking indemnity. 10.4 The Owner shall not be responsible under Paragraph 10.3 for materials and substances brought to the site by the Contractor unless such materials or substances were required by the Contract Documents. 10.5 If, without negligence on the part of the Contractor, the Contractor is held liable for the cost of remediation of a hazardous material or substance solely by reason of performing Work as required by the Contract Documents, the Owner shall indemnify the Contractor for all cost and expense thereby incurred. 10.6 EMERGENCIES 10.6.1 In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 4.3 and Article 7. ARTICLE 11 INSURANCE AND BONDS 11.1 CONTRACTOR'S LIABILITY INSURANCE 11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Contractor from claims set forth below which may arise out of or result from the Contractor's operations under the Contract and for which the Contractor may be legally liable, whether such operations be by the Contractor or by a Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable: .1 claims under workers' compensation, disability benefit and other similar employee benefit acts which are applicable to the Work to be performed; .2 claims for damages because of bodily injury, occupational sickness or disease, or death of the Contractor's employees; .3 claims for damages because of bodily injury, sickness or disease, or death of any person other than the Contractor's AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #32 employees; . 4 claims for damages insured by usual personal injury liability coverage; . 5 claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom; . 6 claims for damages because of bodily injury, death of a person or property damage arising out of ownership, maintenance or use of a motor vehicle; . 7 claims for bodily injury or property damage arising out of completed operations; and . 8 claims involving contractual liability insurance applicable to the Contractor's obligations under Paragraph 3.18. 11.1.2 The insurance required by Subparagraph 11.1.1 shall be written for not less than limits of liability specified in the Contract Documents or required by law, whichever coverage is greater. Coverages, whether written on an occurrence or claims -made basis, shall be maintained without interruption from date of commencement of the Work until date of fmal payment and termination of any coverage required to be maintained after fmal payment. 11.1.3 Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work. These certificates and the insurance policies required by this Paragraph 11.1 shall contain a provision that coverages afforded under the policies will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner. If any of the foregoing insurance coverages are required to remain in force after final payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the final Application for Payment as required by Subparagraph 9.10.2. Information concerning reduction of coverage on account of revised limits or claims paid under the General Aggregate, or both, shall be furnished by the Contractor with reasonable promptness in accordance with the Contractor's information and belief. 11.2 OWNER'S LIABILITY INSURANCE 11.2.1 The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance. 11.3 PROJECT MANAGEMENT PROTECTIVE LIABILITY INSURANCE 11.3.1 Optionally, the Owner may require the Contractor to purchase and maintain Project Management Protective Liability insurance from the Contractor's usual sources as primary coverage for the Owner's, Contractor's and Architect's vicarious liability for construction operations under the Contract. Unless otherwise required by the Contract Documents, the Owner shall reimburse the Contractor by increasing the Contract Sum to pay the cost of purchasing and maintaining such optional insurance coverage, and the Contractor shall not be responsible for purchasing any other liability insurance on behalf of the Owner. The minimum limits of liability purchased with such coverage shall be equal to the aggregate of the limits required for Contractor's Liability Insurance under Clauses 11.1.1.2 through 11.1.1.5. • 11.3.2 To the extent damages are covered by Project Management Protective Liability insurance, the Owner, Contractor and Architect waive all rights against each other for damages, except such rights as they may have to the proceeds of such insurance. The policy shall provide for such waivers of subrogation by endorsement or otherwise. 11.3.3 The Owner shall not require the Contractor to include the Owner, Architect or other persons or entities as additional insureds on the Contractor's Liability Insurance coverage under Paragraph 11.1. 11.4 PROPERTY INSURANCE 11.4.1 Unless otherwise provided, the Owner shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located, property insurance written on a builder's risk "all -risk" or equivalent policy form in the amount of the initial Contract Sum, plus value of subsequent Contract modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise provided in the Contract Documents or AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #33 otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made as provided in Paragraph 9.10 or until no person or entity other than the Owner has an insurable interest in the property required by this Paragraph 11.4 to be covered, whichever is later. This insurance shall include interests of the Owner, the Contractor, Subcontractors and Sub - subcontractors in the Project. 11.4.1.1 Property insurance shall be on an "all- risk" or equivalent policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falsework, testing and startup, temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for Architect's and Contractor's services and expenses required as a result of such insured loss. 11.4.1.2 If the Owner does not intend to purchase such property insurance required by the Contract and with all of the coverages in the amount described above, the Owner shall so inform the Contractor in writing prior to commencement of the Work. The Contractor may then effect insurance which will protect the interests of the Contractor, Subcontractors and Sub - subcontractors in the Work, and by appropriate Change Order the cost thereof shall be charged to the Owner. If the Contractor is damaged by the failure or neglect of the Owner to purchase or maintain insurance as described above, without so notifying the Contractor in writing, then the Owner shall bear all reasonable costs properly attributable thereto. 11.4.1.3 If the property insurance requires deductibles, the Owner shall pay costs not covered because of such deductibles. 11.4.1.4 This property insurance shall cover portions of the Work stored off the site, and also portions of the Work in transit. 11.4.1.5 Partial occupancy or use in accordance with Paragraph 9.9 shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise. The Owner and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. 11.4.2 Boiler and Machinery Insurance. The Owner shall purchase and maintain boiler and machinery insurance required by the Contract Documents or by law, which shall specifically cover such insured objects during installation and until fmal acceptance by the Owner; this insurance shall include interests of the Owner, Contractor, Subcontractors and Sub - subcontractors in the Work, and the Owner and Contractor shall be named insureds. 11.4.3 Loss of Use Insurance. The Owner, at the Owner's option, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however caused. The Owner waives all rights of action against the Contractor for loss of use of the Owner's property, including consequential losses due to fire or other hazards however caused. 11.4.4 If the Contractor requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy, the Owner shall, if possible, include such insurance, and the cost thereof shall be charged to the Contractor by appropriate Change Order. 11.4.5 If during the Project construction period the Owner insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after fmal payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction ___ period, the Owner shall waive all rights in accordance with the terms of Subparagraph 11.4.7 for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. 11.4.6 Before an exposure to loss may occur, the Owner shall file with the Contractor a copy of each policy that includes insurance coverages required by this Paragraph 11.4. Each policy shall contain all generally applicable conditions, defmitions, exclusions and endorsements related to this Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire, and that its limits will not be reduced, until at least 30 days' prior written notice has been given to the Contractor. AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #34 11.4.7 Waivers of Subrogation. The Owner and Contractor waive all rights against (1) each other and any of their subcontractors, sub - subcontractors, agents and employees, each of the other, and (2) the Architect, Architect's consultants, separate contractors described in Article 6, if any, and any of their subcontractors, sub - subcontractors, agents and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to this Paragraph 11.4 or other property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by the Owner as fiduciary. The Owner or Contractor, as appropriate, shall require of the Architect, Architect's consultants, separate contractors described in Article 6, if any, and the subcontractors, sub - subcontractors, agents and employees of any of them, by appropriate agreements, written where legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. 11.4.8 A loss insured under Owner's property insurance shall be adjusted by the Owner as fiduciary and made payable to the Owner as fiduciary for the insureds, as their interests may appear, subject to requirements of any applicable mortgagee clause and of Subparagraph 11.4.10. The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub - subcontractors in similar manner. 11.4.9 If required in writing by a party in interest, the Owner as fiduciary shall, upon occurrence of an insured loss, give bond for proper performance of the Owner's duties. The cost of required bonds shall be charged against proceeds received as fiduciary. The Owner shall deposit in a separate account proceeds so received, which the Owner shall distribute in accordance with such agreement as the parties in interest may reach, or in accordance with an arbitration award in which case the procedure shall be as provided in Paragraph 4.6. If after such loss no other special agreement is made and unless the Owner terminates the Contract for convenience, replacement of damaged property shall be performed by the Contractor after notification of a Change in the Work in accordance with Article 7. 11.4.10 The Owner as fiduciary shall have power to adjust and settle a loss with insurers unless one of the parties in interest shall object in writing within five days after occurrence of loss to the Owner's exercise of this power; if such objection is made, the dispute shall be resolved as provided in Paragraphs 4.5 and 4.6. The Owner as fiduciary shall, in the case of arbitration, make settlement with insurers in accordance with directions of the arbitrators. If distribution of insurance proceeds by arbitration is required, the arbitrators will direct such distribution. 11.5 PERFORMANCE BOND AND PAYMENT BOND 11.5.1 The Owner shall have the right to require the Contractor to furnish bonds covering faithful performance of the Contract and payment of obligations arising thereunder as stipulated in bidding requirements or specifically required in the Contract Documents on the date of execution of the Contract. 11.5.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall permit a copy to be made. ARTICLE 12 UNCOVERING AND CORRECTION OF WORK 12.1 UNCOVERING OF WORK 12.1.1 If a portion of the Work is covered contrary to the Architect's request or to requirements specifically expressed in the Contract Documents, it must, if required in writing by the Architect, be uncovered for the Architect's examination and be replaced at the Contractor's expense without change in the Contract Time. 12.1.2 If a portion of the Work has been covered which the Architect has not specifically requested to examine prior to its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's expense. If such Work is not in accordance with the Contract Documents, correction shall be at the Contractor's expense unless AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #35 the condition was caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such costs. 12.2 CORRECTION OF WORK 12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION 12.2.1.1 The Contractor shall promptly correct Work rejected by the Architect or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect's services and expenses made necessary thereby, shall be at the Contractor's expense. 12.2.2 AFTER SUBSTANTIAL COMPLETION 12.2.2.1 In addition to the Contractor's obligations under Paragraph 3.5, if, within one year after the date of Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under Subparagraph 9.9.1, or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance of such condition. The Owner shall give such notice promptly after discovery of the condition. During the one -year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor and to make a claim for breach of warranty. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the Owner or Architect, the Owner may correct it in accordance with Paragraph 2.4. 12.2.2.2 The one -year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. 12.2.2.3 The one -year period for correction of Work shall not be extended by corrective Work performed by the Contractor pursuant to this Paragraph 12.2. 12.2.3 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. 12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the Owner or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. 12.2.5 Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment of the one -year period for correction of Work as described in Subparagraph 12.2.2 relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work. 12.3 ACCEPTANCE OF NONCONFORMING WORK 12.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. ARTICLE 13 MISCELLANEOUS PROVISIONS 13.1 GOVERNING LAW 13.1.1 The Contract shall be governed by the law of the place where the Project is located. 13.2 SUCCESSORS AND ASSIGNS 13.2.1 The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #36 the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Except as provided in Subparagraph 13.2.2, neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. 13.2.2 The Owner may, without consent of the Contractor, assign the Contract to an institutional lender providing construction fmancing for the Project. In such event, the lender shall assume the Owner's rights and obligations under the Contract Documents. The Contractor shall execute all consents reasonably required to facilitate such assignment. 13.3 WRITTEN NOTICE 13.3.1 Written notice shall be deemed to have been duly served if delivered in person to the individual or a member of the firm or entity or to an officer of the corporation for which it was intended, or if delivered at or sent by registered or certified mail to the last business address known to the party giving notice. 13.4 RIGHTS AND REMEDIES 13.4.1 Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law. 13.4.2 No action or failure to act by the Owner, Architect or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. 13.5 TESTS AND INSPECTIONS 13.5.1 Tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at an appropriate time. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner, or with the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. The Contractor shall give the Architect timely notice of when and where tests and inspections are to be made so that the Architect may be present for such procedures. The Owner shall bear costs of tests, inspections or approvals which do not become requirements until after bids are received or negotiations concluded. 13.5.2 If the Architect, Owner or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Subparagraph 13.5.1, the Architect will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect of when and where tests and inspections are to be made so that the Architect may be present for such procedures. Such costs, except as provided in Subparagraph 13.5.3, shall be at the Owner's expense. 13.5.3 If such procedures for testing, inspection or approval under Subparagraphs 13.5.1 and 13.5.2 reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure including those of repeated procedures and compensation for the Architect's services and expenses shall be at the Contractor's expense. 13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Architect. 13.5.5 If the Architect is to observe tests, inspections or approvals required by the Contract Documents, the Architect will do so promptly and, where practicable, at the normal place of testing. 13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 13.6 INTEREST 13.6.1 Payments due and unpaid under the Contract Documents shall bear interest from the date payment is due at such rate as AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #37 the parties may agree upon in writing or, in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. 13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD 13.7.1 As between the Owner and Contractor: .1 Before Substantial Completion. As to acts or failures to act occurring prior to the relevant date of Substantial Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion; .2 Between Substantial Completion and Final Certificate for Payment. As to acts or failures to act occurring subsequent to the relevant date of Substantial Completion and prior to issuance of the fmal Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of issuance of the fmal Certificate for Payment; and .3 After Final Certificate for Payment. As to acts or failures to act occurring after the relevant date of issuance of the final Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of any act or failure to act by the Contractor pursuant to any Warranty provided under Paragraph 3.5, the date of any correction of the Work or failure to correct the Work by the Contractor under Paragraph 12.2, or the date of actual commission of any other act or failure to perform any duty or obligation by the Contractor or Owner, whichever occurs last. ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT 14.1 TERMINATION BY THE CONTRACTOR 14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 30 consecutive days through no act or fault of the Contractor or a Subcontractor, Sub - subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons: . 1 issuance of an order of a court or other public authority having jurisdiction which requires all Work to be stopped; .2 an act of government, such as a declaration of national emergency which requires all Work to be stopped; .3 because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Subparagraph 9.4.1, or because the Owner has not made payment on a Certificate for Payment within the time stated in the Contract Documents; or . 4 the Owner has failed to furnish to the Contractor promptly, upon the Contractor's request, reasonable evidence as required by Subparagraph 2.2.1. 14.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub - subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work by the Owner as described in Paragraph 14.3 constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365 -day period, whichever is less. 14.1.3 If one of the reasons described in Subparagraph 14.1.1 or 14.1.2 exists, the Contractor may, upon seven days' written notice to the Owner and Architect, terminate the Contract and recover from the Owner payment for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, including reasonable overhead, profit and damages. 14.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor or a Subcontractor or their agents or employees or any other persons performing portions of the Work under contract with the Contractor because the Owner has persistently failed to fulfill the Owner's obligations under the Contract Documents with respect to matters important to AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #38 the progress of the Work, the Contractor may, upon seven additional days' written notice to the Owner and the Architect, terminate the Contract and recover from the Owner as provided in Subparagraph 14.1.3. 14.2 TERMINATION BY THE OWNER FOR CAUSE 14.2.1 The Owner may terminate the Contract if the Contractor: .1 persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials; .2 fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; . 3 persistently disregards laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; or . 4 otherwise is guilty of substantial breach of a provision of the Contract Documents. 14.2.2 When any of the above reasons exist, the Owner, upon certification by the Architect that sufficient cause exists to justify such action, may without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor's surety, if any, seven days' written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety: . 1 take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor; . 2 accept assignment of subcontracts pursuant to Paragraph 5.4; and . 3 fmish the Work by whatever reasonable method the Owner may deem expedient. Upon request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work. 14.2.3 When the Owner terminates the Contract for one of the reasons stated in Subparagraph 14.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. 14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Architect's services and expenses made necessary thereby, and other damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner. The amount to be paid to the Contractor or Owner, as the case may be, shall be certified by the Architect, upon application, and this obligation for payment shall survive termination of the Contract. 14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE 14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. 14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by suspension, delay or interruption as described in Subparagraph 14.3.1. Adjustment of the Contract Sum shall include profit. No adjustment shall be__ made to the extent: .1 that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible; or .2 that an equitable adjustment is made or denied under another provision of the Contract. 14.4 TERMINATION BY THE OWNER FOR CONVENIENCE 14.4.1 The Owner may, at any time, terminate the Contract for the Owner's convenience and without cause. AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #39 14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the Contractor shall: .1 cease operations as directed by the Owner in the notice; .2 take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; and .3 except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders. 14.4.3 In case of such termination for the Owner's convenience, the Contractor shall be entitled to receive payment for Work executed, and costs incurred by reason of such termination, along with reasonable overhead and profit on the Work not executed. AIA DOCUMENT A201- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - 1997 EDITION - AIA - COPYRIGHT 1997 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006 -5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format A201 -1997 User Document: 97A201.CON -- 5/9/2000. AIA License Number 117881, which expires on 5/31/2001 -- Page #40 SUPPLEMENTAL GENERAL CONDITION 1. MEDIATION & ARBITRATION 1. Controversies and Claims Subject To Mediation, Arbitration. All controversies and claims arising out of or related to the Construction Contract or the breach thereof, including controversies regarding the enforceability of the Construction Contract or any of its terms, shall be decided by mediation or binding arbitration. a. Mediation. The parties shall endeavor to resolve any controversies and claims by mediation. Mediations shall be commenced by the service of a demand for mediation upon the respondent. A copy shall be filed with the Architect. The parties to the mediation may engage in reasonable discovery which is necessary for the fair and efficient presentation of evidence. All discovery disputes will be decided by the mediator. Discovery must be conducted promptly, and in no event will discovery be allowed more than one month after service of the demand for mediation. The demand for mediation may be made concurrently with the filing of demand for binding arbitration but, in such event, mediation shall proceed in advance of binding arbitration or legal or equitable proceedings, which shall be stayed pending mediation period of two months from the date of service, unless stayed for longer period by agreement of the parties or court order. (1) The parties agree that Mr. John Harnes shall be their first choice as mediator. In the event Mr. Harnes is unavailable the parties shall mutually agree on a replacement mediator. (2) The parties shall share the mediator's fee and filing fees equally. (3) The mediation shall be conducted in Minneapolis, Minnesota. (4) Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. b. Binding Arbitration. Controversies and claims not resolved by mediation shall be decided by Arbitration. Arbitrations shall be governed by the Uniform Arbitration Act, Minn. Stat. § 572.08 et and shall be commenced by the service of a demand for arbitration upon the respondent. A copy shall be filed with the Architect. The arbitrator shall be selected by the parties and shall be an individual who has served as a Justice of the Minnesota Supreme Court, Judge of the Minnesota Court of Appeals, Judge of a District Court of the State of Minnesota, or Judge or Magistrate Judge of the United States District Court for the District of Minnesota. The parties to the arbitration may engage in reasonable discovery which is necessary for the fair and efficient presentation of evidence at the hearing. All discovery disputes will be decided by the arbitrator. Discovery must be conducted promptly, and in no event will discovery be allowed more than three months after service of the demand for arbitration. The hearing shall be conducted in Minneapolis, Minnesota. (1) The parties agree that The Honorable Robert Bowen shall be their first choice as arbitrator and that the Honorable Robert Schiefelbein is the first alternate. In the event the identified first choice or first alternate are not available the parties shall mutually agree on a replacement arbitrator with the credentials listed above iri this section. (2) Agreements reached in arbitration shall be enforceable as settlement agreements in any court having jurisdiction thereof. Supplemental Conditions Accepted: Owner's signature *Alt `rt5511�'l Contractor's signature �� THE AMERICAN INSTITUTE OF ARCHITECTS '''-= BOND NO. 190- 000 -185 • AIA Document A312 PeAcirmance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY (Name and Principal Place of Business): WATSON- FORSBERG CO. LIBERTY MUTUAL INSURANCE COMPANY 1433 UTICA AVENUE SOUTH, SUITE 252 600 W. GERMANTOWN PIKE, SUITE 300 MINNEAPOLIS, MN 55416 PLYMOUTH MEETING, PA 19462 OWNER (Name and Address): , . ,. . COLUMBIA TRANSITION BLOCK, LLC C/O REAL ESTATE EQUITIES DEVELOPMENT COMPANY, 325 CEDAR STREET, SUITE 400 ST. PAUL, MN 55101 CONSTRUCTION CONTRACT Date: JANUARY 4, 2001 Amount: ONE HUNDRED NINETY SIX THOUSAND FOUR HUNDRED FORTY SEVEN AND 00 /100 ($196,447.00) Description (Name and Location): NEI SITE IMPROVEMENTS, 840 - 41ST. AVENUE NORTH, COLUMBIA HEIGHTS, MN BOND Date (Not earlier than Construction Contract Date): JANUARY 4, 2001 Amount: ONE HUNDRED NINETY SIX THOUSAND FOUR HUNDRED FORTY SEVEN AND 00 /100 ($196,447.00) Modifications to this Bond: (l(;] None ❑ See Page 3 • CONTRACTOR AS PRINCIPAL SURETY Colnp,lny: (Corporate Seal) Company: (Corporate Seal) WATSON -FOR 'RG CO. LIBERTY MUTUAL INSURANCE CO ANY • Signature: Signature: _ Name and Title Dale Forsberg, esident Name and Title: TERRY STA ATTORNEY -IN -FACT (Any additional signatures appear on page 3) (FOR INFORMATION ONLY — Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or AMERICAN AGENCY, INC. other party): 5851 CEDAR LAKE ROAD MINNEAPOLIS, MN 55416 (952) 545 -1230 MA DOCUMENT A312 • I'ERIORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 El). • AIA e, THE AMERICAN INSTITUTE Or ARCHIIECIS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312 -1984 1 THIRD PRINTING • MARCH 1957 I !he ('antra( tar and the Surely, jointly and severalty, whit It it may he liable to the Owner and, as hind themselves, their heirs, exec emus, administrators, soon as practicable alter the amount is deter - suc cessurs :end assigns to the Owner Tor the performance mined, tender payment therefor to the 01 the Construction Contra( t, whit h is incorporated herein Owner; or by reference. .2 Deny liability in whole or in part and notify the 2 If the ('onlrac tar performs the Construction Contra( t, Owner citing reasons thenelur. II e Surety and the Contractor shall have no obligation under this Rand, except to participate in contemn( es as 5 If the Surety does not proceed as provided in Paragraph provided ill Subparagraph 3. I. 4 with reasonable promptness, the Surety shall be deemed lu be in default un this Rand fifteen clays alter rte eipt at an 3 If there is no Owner Default, the Surety's obligation additional written notice from the Owner to the Surety under this Bond shall arise after: demanding that the Surety perform its obligations under 3.1 The Owner has notified the ('untrae tar and the this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety prat eels as Surety at its address described in Paragraph 111 below provided in Subparagraph 4.4, and the Owner refuses the that the Owner is considering dec lacing a Contractor payment tendered or the Surety has denied liability, in Default and has requested and attempted to .orange a whole or in part, without further notice the Owner shall be conference with the Contra( tar and the Surety to be entitled to enforce any remedy available to the Owner. held not later than fifteen days after receipt of sue notice to discuss methods of perforating the Construe 6 After the Owner has terminated the Contractor's right lion Contract. If the Owner, the Contractor and the to complete the Construction Contract, and it the Surety Surety agree, the Contractor shall be allowed a reason - elects to act under Subparagraph 4. I, 4.2, or 4.3 above, able time to perform the Construction Contract, but then the responsibilities of the Surety to the Owner shall sue h an agreement shall not waive the Owner's right, if not be greater than those of the Contractor under the any, subsequently to declare a Contractor Default; and Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those at the 3.2 The ( )wner has declared a Contractor Default and Owner under the Construction Contra( t. I u the limit of the formally terminated the Contractor's right to eonq,lete amount of this Bond, but subject to contntiument by the the contract. Such Contra( tar Default shall not he de- Owner of the Balance of the Contra( t Prie e to mitigation of Glared earlier than twenty days after the Contractor and costs and damages on the Construction Contract, the Sure - the Surety have received notice as provided in Sub- ty is obligated without duplication for: paragraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the 6.1 The responsibilities of the Contractor for correc- Lion of defective ective work and completion of the Constnrc Contract Price to the Surety in accordance with the clan Contract; terms of the Construction Contract or to a contractor selected to perform the Construction Contract in actor- 6.2 Additional legal, design professional and delay dance with the terms of the contra( t with the Owner. costs resulting from the Contractor's Default, and re- sultin' from the actions or failure to act of the Surety 4 When the Owner has satisfied the conditions of Para- under Paragraph 4; and graph 3, the Surety shall promptly and at the Surety's ex- pense take one of the following actions: 6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual dam- 4.1 Arrange for the Contractor, with consent of the ages caused by delayed performance or non- perfor- Owner, to perform and complete the Construction mance of the Contractor. Contract; or 4.2 Undertake to per form and complete. the Construe - 7 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Cau- tion Contras I itself, through its agents or through bale- structiun Contract, and the Balance of the Contract Price pendent contractors; or shall not be reduced or set off on account of any such 4.3 Obtain bids or negotiated proposals from unrelated obligations.' No right of action shall accrue on qualified contractors acceptable to the Owner for a this Bond to any person or entity other than the Owner or cuntrae I for per Iormance and completion of the Con its heirs, executors, administrators or successors. structiun /'antra( I, arrange Iur a c unlract to be pre- 8 The Surety hereby waives notice of any change, induct- pared for execution by the Owner and the contractor selec led with the Owner's cuncurreure, to be secured ing changes of time, to the Construction Contract or to with perlonn.►nce and payment bonds executed by a related subcontracts, purchase orders and other obliga- qualified surety equivalent to the bonds issued on the (ions. Construction Contract, and pay to the! Owner the 9 Any proceeding, legal or equitable, under this Bond amount of ( as described in Paragraph 6 in ex may be instituted in any court of competent jurisdiction in cess of the Ratan( a of the Contract ('rice incurred by the the location in which the work or part of the work is located Owner resulting from the Contractor's default; or and shall be instituted within two years after Contractor 4.4 Waive its right to perform and complete, arrange Default or within two years after the Contractor ceased for completion, or obtain a new contractor and with working or within two years after the Surety refuses or fails reasonable promptness under the circumstances: to perform its obligations under this Bond, whichever oc- curs first. If the provisions of this Paragraph are void or .1 After investigation, determine the amount for prohibited by law, the minimum period of limitation avail - AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 LU. • MA 111E AMERICAN INSTITUTE (31' ARCIIITECIS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20186 A312 -1984 2 THIRD PRINTING • MARCH 1'J87 r ■ able to sureties as a defense in the jurisdiction 01 the suit tractor of any amounts received or to he received by shall he applie able. the Owner in settlement of insurance or other claims IU Notice to the Surety, the Owner or the Contractor shall for damages to which the Contractor is entitled, re- he mailed or delivered to the address shown on the si doted by all valid and proper payments made to or on 6 behalf of the Contractor under the Construction Con - nature page. tract. 11 When this Bond has been furnished to comply with a 12.2 Construction Contract: The agreement between statutory or other legal requirement in the location where the Owner and the Contractor identified on the sig- lhe construction was to be performed, any provision in this nature page, including all Contract Documents and Bond conflicting with said statutory or legal requirement changes thereto. shall be deemed deleted herefrorn and provisions con - forming to such statutory or other legal requirement shall 12.3 Contractor Default: Failure of the Contractor, be deemed incorporated herein. The intent is that this which has neither been remedied nor waived, to per - Bond shall be construed as a statutory bond and not as a form or otherwise to comply with the terms of the common law bond. Construction Contract. 12 DEFINITIONS 12.4 Owner Default: Failure of the Owner, which has T 12.1 Balance of the Contract Price: The total amount tractor as required by the Construction Contract or to neither been remedied nor waived, to pay the Con - a able by the Owner to the Price: het under the P y y perform and complete or comply with the other terms Construction Contract after all proper adjustments thereof. have been made, including allowance to the Con - MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: • • (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: — Name and Title: Name and Title: Address: Address: MA DOCUMENT A312 • I'tkle)RMANCE BONt) AND PAYMENT BOND • DECEMBER 191W El). • MA u► TIIL AMERICAN INS1I1U11 OF ARCM IECIS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 2U006 A312 -1984 3 THIRD PRINTING • MARCH 1987 k INDIVIDUAL OR PARTNERSHIP ACKNOWLEDGMENT STATE OF COUNTY OF On the day of , 20 , before me, a Notary Public within and for said county, personally appeared, to me known to be the person(s) described in and who executed the foregoing instrument, as Principal(s)and acknowledged to me that he executed the same as h free act and deed. Notary Public, (Notarial Seal) CORPORATE ACKNOWLEDGMENT STATEOF Minnesota COUNTY OF On the 4TH day of JANUARY , 20 01 , before me personally appeared Dale Forsberg to me known, who being by me duly sworn, did depose and say: that he resides in Golden Valley MN that he is the President of the WATSON — FORSBERG CO. the corporation described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the board of directors of said corporation; and that he signed his name thereto by like order. ATRICIA _;� • .." ". Minnesota ., Notary Public, l (Notarial Seal) ACKNOWLEDGMENT OF CORPORATE SURETY STATE OF MINNESOTA COUNTY OF . WASHINGTON On this 4TH day of JANUARY , 20 01 , before me appeared TERRY STARKS to me personally known, who being by me duly sworn, did say that he is the aforesaid officer or attorney in fact of LIBERTY MUTUAL INSURANCE COMPANY a corporation; that the seal affixed to the foregoing instrument is the corporate seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by the aforesaid officer, by authority of its board of directors; and the aforesaid officer acknowledged said instrument to be the free act and deed of said corporation. ■ N MELISSA M. NORDIN a` ' z'�..: N O TARY J3LIC•MINNOTA MY COEA,.SISSI EXPIRE 141.2 S VVVVVVVVVVW . motimittsti Notary Public, c/Z2. THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. . 6 9 C 9 3 2 �� � JvJ This Power of Attorney limits the act of those named herein, and they have no authority to bind the Company except in the manner and to the extent herein stated. LIBERTY MUTUAL INSURANCE COMPANY BOSTON, MASSACHUSETTS POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS: That Liberty. Mutual Insurance Company .(the "Company'), a Massachusetts mutual insurance company,.' pursuant to and. by authority..of. the . By -law and: Authorization hereihafter set forth, does hereby name, constitute and appoint, T ERRY STARKS,'DAVID. E:: SELL, R E. CLEMANTS,.OTTO T : BANG, MELISSA M. NORDIN, JOAN K. REMICK, ALL OF__THE CITY. OF MINNEAPOLIS, STATE OF MINNESOTA each individually if there be more thari.Qn : named, its true and: l attorney -in -fact t o:: execute;: seal,:. acknowledge and deliver, for and on its behalf as surety and as its act and deed any and all undertakings ;:.bonds: recognizances`:and other` surety obligations in the penal sum not exceeding THIRTY MILLION AND 00/1 - DOLLARS ($ 30,000,000.00*" .) each, and the execution of such bonds or undertakings, in pursuance of these presents, shall be as binding upon the Company as if they had been duly signed by the president and attested by . the secretary of the Company in their own proper persons. N 0 That this power is made and executed pursuant to and by authority of the following By -law and Authorization: w y C ARTICLE XVI - Execution of Contracts: Section 5. Surety Bonds and Undertakings. .— r n Any officer or other official of the company authorized for that purpose in writing by the chairman or the president, and subject to such .0 6 limitations as the chairman or the president may prescribe, shall appoint such attorneys -in -fact, as may be necessary to act in behalf of the > °, E. company to make, execute, seal, acknowledge and deliver as surety any and all undertakings, bonds, recognizances and other surety R i o Such attorneys -in -fact, subject to the limitations set forth in their respective powers of attorney, shall have full power to bind the C _j 7 company by their signature and execution of any such instruments and to attach thereto the seal of the company. When so executed such �o o a l instruments shall be as binding as if signed by the president and attested by the secretary. V F. ) = By the following instrument the chairman or the president has authorized the officer or other official named therein to appoint attorneys -in -fact: w W _ E E ,, > Pursuant to Article XVI, Section 5 of the By -laws, Assistant Secretary Garnet W. Elliott is hereby authorized to appoint such attorneys -in -fact p 0 ; ip as may be necessary to act in behalf of the company to make, execute, seal, acknowledge and deliver as surety any and all undertakings, = O - 0 bonds, recognizances and other surety obligations. Q cw) O ,. ▪ • d That the By -law and the Authorization above set forth are true copies thereof and are now in full force and effect. L "p � do ▪ .. IN WITNESS WHEREOF, this instrument has been subscribed by its authorized officer and the corporate seal Cthe said Liberty Mutual Ins i ance 3 co -. Company has been affixed thereto in Plymouth Meeting, Pennsylvania this 4th day of to er 200 E + • d ,4•?' a to 'i LIBERTY MUTUAL INSURANCE COMPANY O L y Garnet W. Elliott, Assistant Secretary ¢, d 0) COMMONWEALTH OF PENNSYLVANIA ss Cu e COUNTY OF MONTGOMERY ti On this . 4 day o Oct A . D 2 000 before me, a Nota. Public personally came the individual, known to 9 d me to be the therein des - i ; dual and officer, of Liberty, Mutual: Insurance Company:who executed- the: preceding instrument, and he acknowled- ` cm ged that he executed . =, • ar lae`ali • ': the seal : :affixed to the' said:-preoedi,rig instrument'. is: :the corpotateseal'-of, :said company; and that said corporate ' e l seal and his signatu ,=4q • : , - was• duly affixed anifsubscribed to the;said instrument by authority and direct of the said company. O O U v- • ' IN TESTIMO + „, REOF;:'l :set:my hand and :affix my official': seal' at Plymou Meet , the day :year first above written. o AF rt; fF1IE ns.' t erv?:i;;ir. . 'i - 4' • I r *: DO; . • i i'i r .•,::. % ar:, ; c:wr; . Note Public ��cL.0 I, the undersigne•, . t are' : fetary of Liberty Mutual. Insurance Co do :hereby certify:.that :the power of attorney of which the foregoing is a full, true and c. - c • copy;: is •in full force and effeet of this certificate; and I .do furfher:certify that the officer who executed the said power of attorney was one of the officers specially authorized by"the chairman or the president to appoint any attorney -in -fact as provided in Article XVI, Section 5 of the By -laws of Liberty Mutual Insurance Company. • This certificate may be signed by facsimile under and by authority of the following vote of the board of directors of Liberty Mutual Insurance Company at a meeting duly called and held on the 12th day of March, 1980. VOTED that the facsimile or mechanically reproduced signature of any assistant secretary of the company wherever appearing upon a certified copy of any power of attorney issued by the company, shall be valid and binding upon the company with the same force and effect as though manually affixed. . . IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the said company, this 4TH day of JANUARY , 2001 . ,.., _ i, �G/ stant Secretary THIS POWER OF ATTORNEY MAY NOT BE USED TO EXECUTE ANY BOND WITH AN INCEPTION DATE AFTER October 4 20 02 • THE AMERICAN INSTITUTE OF ARCHITECTS • 4 .,.. -7- y """'`' BOND NO. 190- 000 -185 AIA Document A312 1Paymen Bond • Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY (Name and Principal Place of Business): WATSON - FORSBERG CO. LIBERTY MUTUAL INSURANCE COMPANY 1433 UTICA AVENUE SOUTH, SUITE 252 600 W. GERMANTOWN PIKE, SUITE 300 MINNEAPOLIS, MN 55416 PLYMOUTH MEETING, PA 19462 OWNER (Name and Address): COLUMBIA TRANSITION BLOCK, LLC C/O REAL ESTATE EQUITIES DEVELOPMENT COMPANY, 325 CEDAR STREET, SUITE 400 ST. PAUL, MN 55101 CONSTRUCTION ION C.:ON ] RAC: I Date: JANUARY 4, 2001 Amount: ONE HUNDRED NINETY SIX THOUSAND FOUR HUNDRED FORTY SEVEN AND 00 /100 ($196,447.00 Description (Name and Location): NEI SITE IMPROVEMENTS, 840 - 41ST AVENUE NORTH, COLUMBIA HEIGHTS, MN BOND I)ate (Not earlier than Construction Contract I)ate): JANUARY 4, 2001 Amount: ONE HUNDRED NINETY SIX THOUSAND FOUR HUNDRED FORTY SEVEN AND 00 /100 ($196,447.00 Modilicalions to this Bond: (XI None l I See Page 6 I . C()N I RAC OR AS PRIN(:II'Al SURETY Con1pany: (Corporate Seal) Company: . 1Corporate Seal) WATSON -FO G CO. LIBERTY MUTUAL INSURANC COMPANY Signature:. - -- .... .. -- - -_ - __- _ -._ - -- — Signature: .....z,„ Name and Title: Dale orsberg, esident Name and Title: TERRY STARKS ATTORNEY -IN -FACT (Any additional signatures appear on )age 6) (l Oh' INFORMAII(.)N ONI V- -Name, Address and Telephone) A N I or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or AMERICAN AGENCY, INC. other party): 5851 CEDAR LAKE ROAD MINNEAPOLIS, MN 55416 (952) 545 -1230 AIA DOCUMENT A312 • PERIORMAN('E BOND ANI) PAYMENT BOND • DECEMBER 1914 ED. • AIA 0 11tL AMI RICAN INSTITUTE OF ARcIIIrECES, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 2011116 A312 -1984 4 IHIRD PRINTING • MARCH 1987 . 1 1 1 Contras for and the Surety, jointly and severally, 6 When the Claimant has satisfied the conditions of hind themselves, their heirs, executors, administrators, Paragraph 4, the Surety shall promptly and at the successors and assigns to the Owner to pay for labor, Surety's expense take the following actions: materials and equipment furnished for use in the perfor- mance of the Construction Contract, which is incorpo 6.1 Send an answer to the Claimant, with a copy to rated herein by reference. the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis 2 With respect to the Owner, this obligation shall be for challenging any amounts that are disputed. null and void if the Contractor: 6.2 Pay or arrange for payment of any undisputed 2.1 Promptly makes payment, directly or indirectly, amounts. for all sums due Claimants, and 7 The Surety's total obligation shall not exceed the 2.2 Defends, indemnifies and holds harmless the amount of this Bond, and the amount of this Bond shall be Owner from claims, demands, liens or suits by any credited for any payments made in good faith by the Surety. person or entity whose claim, demand, lien or suit is for the payment for labor, materials or equipment fur- 8 Amounts owed by the Owner to the Contractor under nished for use in the performance of the Construction the Construction Contract shall be used for the perfor- Contract, provided the Owner has promptly notified mance of the Construction Contract and to satisfy claims, the Contractor and the Surety (at the . address if any, under any Construction Performance Bond. By described in Paragraph 12) of any claims, demands, the Contractor furnishing and the Owner ac:c:epting this liens or suits and tendered defense of such claims, Bond, they agree that all funds earn?d by the Contractor demands, liens or suits to the Contractor and the in the performance of the Construction Contract are Surety, and provided there is no Owner Default. dedicated to satisfy obligations of the Contractor and the Surety under this Bond, subject to the Owner's prior- 3 With respect to Claimants, this obligation shall be ity to use the funds for the completion of the work. null and void if the Contractor promptly makes pay- ment, directly or indirectly, for all sums clue. 9 The Surety shall not he liable to the Owner, Claimants 4 The Surety shall have no obligation to Claimants or others for obligations of the Contractor that are unrelat- under this Bond until: ed to the Construction Contract. 1 he Owner shall not be liable for payment of any costs or expenses of any Claim - 4.1 Claimants who are employed by or have a direct ant under this Bond, and shall have under this Bond no obli- contract with the Contractor have given notice to the gations to make payments to, give notices on behalf of, or Surety (at the address described in Paragraph 12) and otherwise have obligations to Claimants under this Bond. sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with 10 The Surety hereby waives notice of any change, substantial accuracy, the amount of the claim. including changes of time, to the Construction Contract 4.2 Claimants who do not have a direct contract or to related subcontracts, purchase orders and other with the Contractor: obligations. .1 I lave furnished written notice to the Con- 11 No suit or action shall be commenced by a Claimant tractor and sent a copy, or notice thereof, to under this Bond other than in a court of competent juris- the Owner, within 90 days after having last diction in the location in which the work or part of the performed labor or last furnished materials or work is located or after the expiration of one year from the equipment included in the claim stating, with date (1) on which the Claimant gave the notice required by substantial accuracy, the amount of the claim Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last and the name of the party to whom the labor or service was performed by anyone or the last mate - materials were furnished or supplied or for rials or equipment were furnished by anyone under the Con - whom the labor was done or performed; and struction Contract, whichever of (1) or (2) first occurs. If the .2 I laver either received a rejection in whole or 1 provisions of this Paragraph are Paragraph or prohibited by law, 1 the minimum period of limitation available to sureties as a in part from the Contractor, or not received defense in the jurisdiction of the suit shall be applicable. within 30 clays of furnishing the above no- tice any communication from the Contractor _, by which the Contractor has indicated the 12 Notice to the Surety, the Owner or the Contractor claim will be paid directly or indirectly; and shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the .3 Not having been paid within the above 30 Owner or the Contractor, however accomplished, shall days, have sent a written notice to the Surety be sufficient compliance as of the date received at the (at the address described in Paragraph 12) and address shown on the signature page. sent a copy, or notice thereof, to the Owner, stating that a c lain is being made under this 13 When this Bond has been furnished to comply with a Bond and ens losing a copy of the previous statutory or other legal requirement in the location where written notice furnished to the Contractor. the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement 5 If a notic c required by Paragraph 4 is given by the shall be deemed deleted herefrom and provisions con - Owner to the Contractor or to the Surety, that is suffi- forming to such statutory or other legal requirement shall cient compliance. be deemed incorporated herein. The intent is that this AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA• 111E AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312 -1984 5 11111tD PRINTING • MARCH 1987 Bond shall he construed as a statutory bond and not as a Construction Contract, architectural and engineering common law bond. services required for performance of the walk of the Contra( for and the Contractor's subcontractors, and 14 Upon request by any person or entity appearing to be a all other items for which a mechanic's lien may be potential beneficiary of this Bond, the Contractor shall asserted in the jurisdiction where the labor, materials promptly furnish a copy of this Bond or shall permit a copy or equipment were furnished. to be made. 15 DEFINITIONS 15.2 Construction Contract: The agreement between the Owner and the Contractor identified on the sig- 15.1 Claimant: An individual or entity having a direct nature page, including all Contract Documents and contract with the Contractor or with a subcontractor of changes thereto. the Contractor to furnish labor, materials or equili- 15.3 Owner Default: Failure of the Owner, which has merit for use in the perlormance of the Contract. The neither been remedied nor waived, to pay the Con - intent of this Bond shall he to include without limita- tractor as required by the Construction Contract or to Lion in the terms "labor, materials or equipment" that perform and complete or comply with the other terms part of water, gas, power, light, heat, oil, gasoline, thereof. telephone service or rental equipment used in the MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: • • (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: _ .___ _.__.. Signature: Name and Title: Name and Title: Address: Address: AlA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA Qu THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312 -1984 6 THIRD PRINTING • MARCH 1987 INDIVIDUAL OR PARTNERSHIP ACKNOWLEDGMENT STATE OF COUNTY OF On the day of , 20 , before me, a Notary Public within and for said county, personally appeared, to me known to be the person(s) described in and who executed the foregoing instrument, as Principal(s)and acknowledged to me that he executed the same as h free act and deed. Notary Public, (Notarial Seal) CORPORATE ACKNOWLEDGMENT STATEOF Minnesota COUNTY OF On the 4TH day of JANUARY , 20 01 , before me personally appeared Dale Forsberg Golden Valley MN to me known, who being by me duly sworn, did depose and say: that he resides in that he is the President of the WATSON— FORSBERG Co. the corporation described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the board of directors of said corporation; and that he signed his name thereto by like order. .t - PATRICIA M. FULKERSON Notary Public ; Minnesota ?e: Is My Connnlsslon Expires Jan. 91.2018 ' '° Notary Public, ._1?r-f-,- . (Notarial Seal) ACKNOWLEDGMENT OF CORPORATE SURETY STATE OF MINNESOTA COUNTY OF WASHINGTON On this 4TH day of JANUARY , 20 01 , before me appeared TERRY STARKS to me personally known, who being by me duly sworn, did say that he is the aforesaid officer or attorney in fact of LIBERTY MUTUAL INSURANCE COMPANY a corporation; that the seal affixed to the foregoing instrument is the corporate seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by the aforesaid officer, by authority of its board of director,; and the aforesaid officer acknowledged said instrument to be the free act and deed of said corporation. ■ ■ MELISSA M. NORDIN 1 NOT ARY PUBLIC - MINNESOTA ,. . f MMY CC )1ISSION EXPIRES 1.31. `wwv ./N}citm5aw. Notary Public, J 2 .t) V . (/ cr'z r:J , THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. • 696933 This Power of Attorney limits the act of those named herein, and they have no authority to bind the Company except in the manner and to the extent herein stated. LIBERTY MUTUAL INSURANCE COMPANY BOSTON, MASSACHUSETTS POWER OF ATTORNEY KNOW ALL PERSONS B.Y. THESE PRESENTS: That Liberty Mutual Insurance Company (the "Company "), a Massachusetts mutual insurance company,.. pursuant to and by authority .:.of•: the . By -law and: Au hereinafter set forth, does hereby name, constitute and appoint, 'TERRY STARKS, ROB E.:CLEMANTS, OTTO•TBANG, MEUSSA M. NORDIN, JOAN K. REMICK, ALL OF-THE CITY. :OF MINNEAPOLIS, STATE O1F:�.MINNESOTA • , each individually if there be more than: one named, its true'and :lawful:attorriey -in -fact to execute ;: seal;:: acknowledge and deliver, for and on its behalf as surety and as its act and deed and all undertakings ;::boida;recognizances:and other surety.;obligations in the penal sum not exceeding THIRTY MILLION AND 00/9 'DOLLARS ($ 30,000,000.00°°°"x •) each, and the execution of such bonds or undertakings, in pursuance of these presents, shall be as binding upon the Company as if they had been duly signed by the president and attested by .a the secretary of the Company in their own proper persons. .9 to That this power is made and executed pursuant to and by authority of the following By -law and Authorization: y 3 C = ARTICLE XVI -. Execution of Contracts: Section 5. Surety Bonds and Undertakings. y y Any officer or other official of the company authorized for that purpose in writing by the chairman or the president, and subject to such O A la y limitations as the chairman or the president may prescribe, shall appoint such attorneys-in-fact, as may be necessary to act in behalf of the y c company to make, execute, seal, acknowledge and deliver as surety any and all undertakings, bonds, recognizances and other surety c obligations. Such attorneys -in -fact, subject to the limitations set forth in their respective powers of attorney, shall have full power to bind the _ C to ." p to company by their signature and execution of any such instruments and to attach thereto the seal of the company. When so executed such o l instruments shall be as binding as if signed by the president and attested by the secretary. v 1— _ � = By the following instrument the chairman or the president has authorized the officer or other official named therein to appoint attorneys -in -fact: N W c o C E > Pursuant to Article XVI, Section 5 of the By -laws, Assistant Secretary Garnet W. Elliott is hereby authorized to appoint such attorneys -in -fact ` p C -- j as may be necessary to act in behalf of the company to make, execute, seal, acknowledge and deliver as surety any and all undertakings, = o bonds, recognizances and other surety obligations. .4 rh ^"0 O.. 0 That the By -law and the Authorization above set forth are true copies thereof and are now in full force and effect. ,. a '` a!C S IN WITNESS WHEREOF, this instrument has been subscribed by its authorized officer and the corporate seal, f said Liberty Mutual II ance 3 m Company has been affixed hero in Plymouth Meeting, Pennsylvania this 4th day of 8ctouer 2� O E • to F o. co ^" LIBERTY MUTUAL INSURANCE COMPANY H 0 E B e5� • G% o C y Garnet W. Elliott, Assistant Secretary — d • '✓D ai COMMONWEALTH OF PENNSYLVANIA ss . i w el COUNTY OF MONTGOMERY > v On this _ 4th day of October A 2000, before me, a Nota. Public personally came the individual, known to co O me to be the therein desc '• _ idual. and officer Liberty. Mutu I ns u rance Compapywho executed.. the- preceding instrument, and he acknowled- E N ged that he executed . a a;. • the sea ixed to the _sa flpreced rig;instrument:i5 :the corporate: seal.:0t:S id:company; and that said corporate - g seal and his si natu 90115 - • was•duf affixed a nd Subscribed •to the said instrument by authority and of the said company. O C 0 IN TESTIMO +�� REOFI t . ::set :rrt hand:.andaffix my off iciaf seal at PIyi� Q U . Meetirr , P the da ' end year first above written. �"' '.. Y Y Y(ri 9:•. y. :Y O to ?tt -4"-, ? cT s �; . I C r y a.,lit: r - * 2 .?( " NCI . ... iC F c ?5 :; :•i : ; +ire ; r i ' L. ?!' 2 0 N �Irsyt J Ci t = FtTiF1 • • T I, the undersigne , AMA/ : ":tary: of Liberty Mutual, :Insurance Company, do ::hereby certify. that tfie: : : original power of attorney of which the foregoing is a full, true and c c copy! - ;sin full force and effect Qrt:ttie..date of this cei ificate; and :I doifurtl er:oortify that the officer who executed the said power of attorney was one of the officers specially authorized chairman or the president to appoint any attorney -in -fact as provided in Article XVI, Section 5 of the By -laws of Liberty Mutual Insurance Company. • This certificate may be signed by facsimile under and by authority of the following vote of the board of directors of Liberty Mutual Insurance Company at a meeting duly called and held on the 12th day of March, 1980. VOTED that the facsimile or mechanically reproduced signature of any assistant secretary of the company wherever appearing upon a certified copy of any power of attorney issued by the company, shall be valid and binding upon the company with the same force and effect as though manually affixed. . IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the said company, this 4TH day of JANUARY , 2001. V s cant Secretary THIS POWER OF ATTORNEY MAY NOT BE USED TO EXECUTE ANY BOND WITH AN INCEPTION DATE AFTER October 4 20 02 01/05/01 11:15:35 AM Bidform.123 - 0 , C•NSTRUCTION COST ESTIMATE - - - PROJECT: NEI SCHOOL SITE IMPROVEMENTS BID DUE: DEC. 15, 2000 BLDG. S.F. = 1 COLUMBIA HEIGHTS ° ARCH: ESG TYPE PROJ: PH: DATE: 1999 :I x a. : ,r' x fN.u: <ker ..x s s : °M t fi . <.:. :z • :.. V .. :. ..r. . i2Fk rx . „,...: {tr::.' :x -x:..t :•1 •. ' <. NT . ABQ 35:: Sl]Pp n"t'A' . :.{,. l98. ,. 'd'. _ r .. }J�.AE' t,. :[..v,.v ., .: ... .,... .. ......,.v . vx - (: .v4 .. >.. x.: v, :vvt J:Y. : x,l . . trv „ 4 y r .} vvvAY .•.. H`:Rxvrr,,.i • {ti:: { y. •..k h'f.:{ :{;�: '4 . kx� :: +C... . A v,:'f. }. .v .. trNp�:. 3 v.YR � k Y h ..5. x {. Q n., •trY :f }''- � .. f.:: x� trR �� w . .: :vri,tr: n v:r . � .;x { , y x..:v '::}vn.,.:x..t” yC.:}.;:.d s %•. Y'. <: ::f:4. v. .tr a o; o rxtxyr . x.r.,v.0. •.. .. {. . :.. .r . -.: . .. '$r... . ,�., ¢::;ok x . .. .., • :., , { ' : : trr 3 R x . rv.,. r P4.r t.r.... pp ...o.�. x,tA' ^•d "rv. ..:rb. g tr % .x :• .x; : '..,[... +., :a :. v... n.v:.r_.}.:.:� .:.0. ;..: .{.Y .. }.�$r:v.{:. :. ., ... .. 'S fi Yvi}:. v:x% ^:� }... 4h. .. ..!f...x M1O ��'�Qy��(��y��+( ti. � �•. Y. Y.�K ri: {t2�,•'C :•. 2: .:: ... ... : ..: • .w: • rvA: .. .vx.: ::. ,.: kv,a.; <tifia • . : ....: % trxoojj .V�•4 s� - 1Y�� � ' � . N '.�Yi: i.f�x v,:'},.: yid &v. :., {nvx CC rr..�� . .:. �. ....., ..... , ... ................wp7E:... r>.,,. r.,.k.......:w. .x...... .... ...R.. . .... .. ra . '�.: -� .. -xtr ... :.r�. {S6vH �:' =rJ• d :•nxri: Yi <7::: >: .vn . Nv.. ..�.:. .�[ .v n•} ..�.. .'fir ....vx ... r.... ... ..... x.. f. ,.vr .:: .... n.{� 2-200 EARTHWORK & BLDG. DEMO. 0 0 0 0 42,110 42,110 2-610 PAVING & STRIPPING 5755 S.Y. 9.65 0 — 55,553 55,553 2-600 UTILITIES 0 0 0 0 5 - --I C.B. & SEWER LINE @ AREA B o C.B.1B & 2B & STORM SEWER LINE AREAD — z 2 - C.B. COVERS _ G 2-620 CONC. CURBS & GUTTER 1525 L.F. 0 7.8 0 11,895 11,895 2 -810 FENCING 0 4,394 4,394 , TRASH ENCLOSURE 68 M . 116FT • TE • 1,994 c FENCE AT RETAINING WALL 250 L.F. - 2,40 - 2 -900 LANDSCAPING 0 0 0 0 3,900 3,900 0 3 -100 CONCRETE: 0 0 0 0 5,260 5,260 CONC. SIDEWALK, 4" 290 S.F. 6 1,740 _ TRASH PAD, 6" 440 S.F. 8' 3,520 4 -200 MASONRY- RETAINING WALL 11500 L.F. 15 0 _ 22,500 _ 22,500 10 -440 SIGNS 0 0 0 0 _ 2,100 2,1100 16 -100 ELECTRICAL 0 0 0 0 20,507 20,507 _ 0 0 0 0 0 TOTAL CONSTR. COST 5260 0 173369 $173,369 BLDG PERMIT BASED ON -> 2390 _ $2 SAC & WAC _ 0 $0 BOND BASED ON -> 0 $1,700 BLDRS RISK NONE /MASONRY FRAME -> B OWNER 0 $0 GENERAL CONDITIONS 0 0 00 _ SUB -TOTAL II 2390 0 0 173369 $177, O &P 0.1 $17,746 (-4(=> TOTAL p y� COST -- _ ®Y i•iL PROJECT Ne - - - 1 - $1 95,205 c�i�`° ALTERNATE: PARKING STRIPES IN PARKING AREA F, G, H, J & K = $1,242 $1 242 m N\ • • iv r• W lr 1 _ . .... 3 COLUMBIA HEIGHTS TRANSITION BLOCK PARKING IMPROVEMENTS UPDATED: 1/4/01 PLAN AREA STALLS / NARRATIVE DESCRIPTION OF WORK REFERENCE NEI ON PARKING IMPROVEMENTS All work shall conform with plans, specifications, city codes & approvals. A. WEST END - EAST SIDE - (NEW) 14 Remove existing sod, vegetation and top soil. Prepare aggregate base for bituminous paving. Install Bituminous paving, curb & gutter. Add - ADDITIONAL CURB & GUTTER drive over existing storm drainage structure. Insure finish grade matches existing conditions. Stripe and mark stalls per plan. At entrance - STORM SEWER STRUCTURE install curb and gutter per plan. For landscape restoration prepare - ADDITIONAL CONCRETE WORK site to match existing grade and install specified landscaping materials. - SIDE WALK Construct sidewalk from parking lot on west side of building to building - GRADING & LANDSCAPE entrance / sidewalk at southwest comer of building. Install engineered - RETAINING WALL modular concrete retaining wall on north side of sidewalk, backfill and - MISC. / LIGHTING tile per specification. Install 4' high chain link fence at the top of the -1 NEW WALLPACK & UPGRADE 2 WALLPACKS retaining wall. Grade slope on the north side of the wall to a 3:1 slope. -1 NEW 20' FIBERGLASS POLE (CORNER OF AREA C) Install 1 new 400 watt wallpack on sw corner of building. Upgrade 2 wallpacks on west end of building from 250 watt to 400 watt. Install 20' fiberglass light pole at comer of C parking area. B. WEST END - WEST SIDE (NEW) 1 Remove existing sod, vegetation and top soil. Prepare aggregate base for bituminous paving. Install Bituminous paving, curb & gutter. Insure finish - ADDITIONAL CURB & GUTTER grade matches existing conditions. Stripe and mark stalls per plan. At entrance install curb and gutter per plan. For landscape restoration prepare site to match existing grade and install specified landscaping materials. WEST END - WEST SIDE (RESTRIPE) 29 Restripe remaining area on west side of drive aisle to conform with plan. WEST END - EAST SIDE - (NEW) 26 Remove existing sod, vegetation and top soil. Install engineered modular concrete retaining wall, backfill and tile per specification. - ADDITIONAL CURB & GUTTER Prepare aggregate base for bituminous paving. Install Bituminous paving, - GRADING & LANDSCAPE curb & gutter. Stripe and mark stalls per plan. Insure finish grade matches - CHAIN LINK FENCE existing conditions. Grade slope on east side of wall to a 3:1 slope. For - RETAINING WALL landscape restoration prepare site to match existing grade and install - MISC. specified landscaping materials. Install 4' high chain link fence at the top of the retaining wall. Relocate existing C.B. Structure over existing storm sewer. • Install 1" bituminous overlay over entrance drive. Mill existing bituminous where matching to new. C. WEST END - NORTH SIDE (NEW) 6 Remove existing sod, vegetation and top soil. Prepare aggregate base for bituminous paving. Install Bituminous paving, curb & gutter. Insure finish - ADDITIONAL CURB & GUTTER grade matches existing conditions. Stripe and mark stalls per plan. - GRADING & LANDSCAPE Install curb and gutter per plan. For landscape restoration prepare site to match existing grade and install specified landscaping materials. • WEST END - NORTH SIDE (RESTRIPE) 12 Restripe area on north side of drive aisle to conform with plan. Mill existing bituminous where matching to new. D. BEHIND SCHOOL / CORNER - RECONSTRUCTION OF CORNER Reconstruct comer per plan including demolition and removal of existing paved surface, curb and gutter and adjacent Improvements. Prepare aggregate base for bituminous paving. Install bituminous paving, curb and - GRADING & EXCAVATION gutter per plan. For landscape restoration prepare site to match existing - CURB & GUTTER grade and install specified landscaping materials. - PAVING - LANDSCAPE Adjust structure to match pavement. BEHIND SCHOOL. - FULL (NEW) 12 Prepare aggregate base for bituminous paving. Insure finish grade matches existing conditions. Stripe and mark stalls per plan. - SPACE FOR TRASH & ENCLOSURE Install bituminous paving, curb and gutter per plan. For landscape restoration preprae site to match existing grade and Install specified landscaping materials. BEHIND SCHOOL - ( RESTRIPE) 18 Restripe area on south side of drive aisle to conform with plan. Include area for trash. • - ROAD/PAVING BEHIND SCHOOL Prepare aggregate base for bituminous paving. Insure finish grade matches existing conditions. Paving to match existing conditions. Mill existing bituminous where matching to new. E. EAST END - BEHIND SCHOOL (RESTRIPE) 10 Restripe area on east side of school to conform with plan. -12" STORM SEWER PIPE Install structure and 12" pvc to connect to storm sewer in area D. - STORM SEWER STRUCTURE • See quantity list for verification. F. (RESTRIPE) 24 Restripe area to conform with plan. (NEW) 9 Remove existing sod, vegetation and top soil. Prepare aggregate base for bituminous paving. Install bituminous paving. Mill existing bituminous where matching to new. G. ( RESTRIPE) 58 Restripe area to conform with plan. (NEW) 4 Remove existing sod, vegetation and top soil. Prepare aggregate base for bituminous paving. Install bituminous paving. Mill existing bituminous where matching to new. H. (RESTRIPE) 58 Restripe area to conform with plan. (NEW) 4 Remove existing sod, vegetation and top soil. Prepare aggregate base for bituminous paving. Install bituminous paving. Mill existing bituminous where matching to new. I. NORTH SIDE - GARAGE AREA/OSTRANDER (NEVI 30 Prepare aggregate base for bituminous paving. Install bituminous paving. - ADDITIONAL DRIVE AISLE - DEMOLITION OF OSTRANDER HOUSE & GARAGE Remove existing sod, vegetation and top soil. Demolish and remove house & garage. - DEMOLITION OF NEI SERVICE GARAGE Remove existing sod, vegetation and top soil. Demolish and remove garage. - ISLANDS / ENTRANCE / CURB & GUTTER Insure finish grade matches existing condtions. Stripe and mark stalls per plan. - LANDSCAPE At entrance install curb and gutter per plan. For landscape restoration prepare 1 site to match existing grade and install specified landscaping materials. - LIGHT - RELOCATION OF POLE Mill existing bituminous where matching to new. - LIGHT - AT CORNER OF ENTRANCE - 8' POLE - MISC. CURB & GUTTER J. (RESTRIPE) 59 Restripe area to conform with plan. Remove landscape island from around (NEW) 4 Tight standard. - REMOVAL OF ISLAND (LIGHT REMAINS) Mill existing bituminous where matching to new. K (RESTRIPE) 37 Prepare aggregate base for bituminous paving. Install bituminous paving. (NEW) 4 Insure finish grade matches existing conditions. Stripe and mark stalls per plan. L. (RESTRIPE) 16 Prepare aggregate base for bituminous paving. Install bituminous paving. (NEW) 6 Insure finish grade matches existing conditions. Stripe and mark stalls per plan. M. (RESTRIPE) 8 Prepare aggregate base for bituminous paving. Install bituminous paving. (NEW) 3 Insure finish grade matches existing conditions. Stripe and mark stalls per plan. N. (NEW) 15 Prepare aggregate base for bituminous paving. Install bituminous paving. - SIGNAGE Insure finish grade matches existing conditions. Stripe and mark stalls per plan. Install curb and gutter per plan. For landscape installation prepare site to match existing grade and install specified Landscaping materials. Install signage. TOTAL ON-SITE STALLS 467 * INCLUDES 11 SR. STALLS 456 * NET NEI ON -SITE STALLS OTHER SITE IMPROVEMENTS : - ROAD/PAVING - NEW 24' WIDE DRIVE Prepare aggregate base for btuminous paving. Install bituminous paving. - BETWEEN 41ST & PUBLIC ALLEY TO 42ND Insure finish grade matches existing conditions. Install curb and gutter per plan. For landscape installation prepare site to match existing grade and install - ROAD/PAVING - NEW ALLEY ON OUTLOT D specified Landscaping materials. Construction of the rental townhomes and reconfiguration of the parking areas - UTILITY RELOCATION - EAST END OF (RENTAL SITE) will require relocation of two of the lighting standards and associated wiring. UNDER ROAD AND L & M The area will be restored and paved over in accordance with the above - referenced paving program. - CREATION OF POND As part of the project the retention pond and associated piping will be - PIPING / CONNECTIONS TO POND reconstructed to conform with the drainage plan for the site. OFFSITE PARKING IMPROVEMENTS (PERMIT PARKING) 1. 41ST - PARALLEL STRIPING 33 Restripe, paint and sign area to conform with plan. - CURB & GUTTER PAINTING - SIGNAGE 2. JACKSON - CONSTRUCTION OF PARALLEL STALLS 11 - STRIPING & PAVEMENT MARKINGS & SIGNAGE Restripe and sign area to conform with plan. TOTAL OFF -SITE PERMIT STALLS 44 TOTAL COMBINED PARKING STALLS 511 * INCLUDES 11 SR. STALLS 500 * NET STALLS TO NEI All work to match existing conditions and level 01 finish on site. 1 . 4 1 , COLUMBIA HEIGHTS TRANSITION BLOCK, LLC January 4, 2001 Charles Dettman . NEI School of Technology 825 41" Avenue Columbia Heights, MN 55 RE: Scope of Work - Trash Enclosure Dear Mr. Dettman: This letter is confirming our conversation concerning the trash enclosure on the north side of the school. The project has been bid and agreements made per the scope of work and the site plan attached. We understand that you would like to explore the possibility of relocating the trash enclosure further west along the north side of the school. We will work with you once construction has begun to explore possible locations. It is our understanding that any additional costs that may be incurred to relocate the trash enclosure from the current location will be at NEI School of Technology's expense. If you have any questions, please feel free to contact me at 651- 767 -1550. Sincerely, ! Keith S. J Treasurer Reviewed and accepted by: Signature: .e 7 g..7 ,-.----- 3 Printed Name: Xa-ri s /e /Vol`r a..� 325 CEDAR STREET, SUITE 400 • ST. PAUL, MN • 55101 PHONE: 651- 227 -6925 • FAX: 651 - 227 -9001 4 •, I CONSTRUCTION PLANS SUPPLEMENT DATED MARCH 6, 2001 The Construction Plans shall include the following: 1. Striping plans in Parking Area A and Parking Area E (as shown on the Site Parking Plan) shall be modified to locate compact parking spaces at the end of rows and/or next to handicapped parking spaces. 2. Landscape plan assumes that sod will be placed in landscape and restoration areas and boulevard trees shall be planted in accordance with City requirements. 3. All payments in accordance with Section 5 of the Construction Contract dated January 4, 2001 between CHTB and Watson- Forsberg Co. to the Contractor shall be disbursed by Commonwealth Land Title Insurance Company subject to the receipt by Title of lien waivers with respect to all Work performed by the Contract or its subcontractors and paid with the immediately preceding draw. TC3: 733182 v01 03/06/2001 EXHIBIT B LEGAL DESCRIPTION OF NEI RETAINED PROPERTY Lot 1, Block 1, Northwestern 2 Addition, Anoka County, Minnesota. TC3: 713057 v04 03/06/2001 Execution Copy GRANT AGREEMENT (Livable Community Act Funds — Crest View ONDC I) THIS AGREEMENT is made as of this 23 day of March, 2001 by and between Crest View ONDC I, a nonprofit corporation under the laws of the State of Minnesota ( "Recipient ") and the City of Columbia Heights, Minnesota, a municipal corporation under the laws of the state of Minnesota ( "Grantor "). RECITALS A. Columbia Heights Transition Block LLC, a limited liability company under the laws of the state of Minnesota ( "Developer ") has requested that the Columbia Heights Economic Development Authority ( "Authority ") enter into certain agreements, including but not limited to a contract for private development with Developer dated as of March 1, 2001 (the "Contract "), and that the City of Columbia Heights, Minnesota ( "Grantor ") enter into certain agreements with Crest View ONDC I, a nonprofit corporation under the laws of the state of Minnesota ( "Recipient "), all with regard to the construction of a 50 -unit senior rental facility (the "Project ") to be located on certain property in the City legally described on Exhibit A attached hereto (the "Property "). B. In order to provide additional financing for the Project and thereby improve and retain affordable housing in the City, Grantor agrees to grant to Recipient the sum of Two Hundred Nine Thousand Six Hundred Fifty and no /100ths Dollars ($209,650) from funds received by Grantor from the Metropolitan Council, a public corporation and political subdivision of the state created pursuant to Minnesota Statutes, Chapter 473 (the "Metropolitan Council "), such funds provided to Grantor pursuant to Livable Communities Demonstration Account Grant No. SG -99 -47 (the "Grant "), a copy of which is attached hereto as Exhibit B and the terms of which are hereby incorporated by reference. ACCORDINGLY, to induce Grantor to make the Grant to Recipient, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. The Grant Amount. Subject to and upon the terms and conditions of this Agreement, Grantor agrees to grant to Recipient the sum of Two Hundred Nine Thousand Six Hundred Fifty and no /100ths Dollars ($209,650), or so much thereof as is disbursed to Recipient in accordance with this Agreement (the "Grant "). Grantor shall have no obligation to disburse any portion of the Grant to Recipient unless and until Grantor receives an equivalent amount of funds from the Metropolitan Council pursuant to the Grant. Proceeds of the Grant shall be disbursed in accordance with Section 2 hereof. DJG- 190361v2 1 CL205 -14 2. Disbursement of Grant Proceeds. (a) On such date as requested by Recipient (the "Closing Date "), Grant proceeds shall be paid to Recipient or a trustee or escrow agent designated by Recipient. Recipient warrants that it shall use Grant proceeds only for purposes and activities related to the Project and permitted by the Grant. (b) The following events shall be conditions precedent to the payment of the Grant proceeds to Recipient on the Closing Date: (i) Recipient having executed and delivered to Grantor prior to the Closing Date, without expense to Grantor, executed copies of this Agreement; (ii) Recipient having provided evidence satisfactory to Grantor that Recipient has established a separate accounting system for the Project, for the purpose of recording the receipt and expenditure of the Grant proceeds; (iii) Recipient having paid all attorney fees, costs, and expenses incurred by Grantor in connection with this Agreement; (iv) Recipient having delivered to Grantor prior to the Closing Date, the Contract, fully approved and executed by all parties thereto; and (v) Recipient having provided Grantor with evidence satisfactory to Grantor that Recipient has adequate funds to complete the Project. 3. Representations and Warranties. Recipient represents and warrants to Grantor that: (a) Recipient is a nonprofit corporation duly organized and existing in good standing under the laws of the State of Minnesota. (b) Recipient is duly authorized and empowered to execute, deliver, and perform this Agreement and to receive the Grant from Grantor. (c) The execution and delivery of this Agreement, and the performance by Recipient of its obligations hereunder, do not and will not violate or conflict with any provision of law or the organizational documents of Recipient and do not and will not violate or conflict with, or cause any default or event of default to occur under, any agreement binding upon Recipient. (d) The execution and delivery of this Agreement has been duly approved by all necessary action of Recipient, and this Agreement has in fact been duly executed and delivered by Recipient and constitutes its lawful and binding obligation, legally enforceable against it. DJG- 190361v2 2 CL205 -14 (e) Recipient warrants that it shall keep and maintain books, records, and other documents relating directly to the receipt and disbursements of Grant proceeds and that any duly authorized representative of Grantor shall, at all reasonable times, have access to and the right to inspect, copy, audit, and examine all such books, records, and other documents of Recipient respecting the Grant until the completion of all closeout procedures and the final settlement and conclusion of all issues arising out of this Grant. (f) Recipient warrants that it has fully complied with all applicable state and federal laws pertaining to its business and will continue said compliance throughout the terms of this Agreement. If at any time Recipient receives notice of noncompliance from any governmental entity, Recipient agrees to take any necessary action to comply with the State or Federal law in question. (g) Recipient warrants that it will use the proceeds of the Grant made by Grantor solely for the purposes described in Section 2 hereof. (h) Recipient warrants that it will comply with all federal, state, and local laws, rules, and regulations applicable to construction and operation of the Project, including but not limited to those pertaining to occupational health and safety, stormwater discharge, and nondiscrimination. Without limitation of the foregoing, Recipient further specifically warrants that it will comply with all applicable requirements of the Metropolitan Council's Interim Strategy to Reduce Nonpoint Source Pollution to All Metropolitan Water Bodies. (i) To the extent required by the Grant, Recipient shall acknowledge the Grant in promotional materials, press releases, reports, and publications relating to the Project by including in such materials the following or similar language: This project was financed in part with a grant from the Metropolitan Council through the Livable Communities Demonstration Account of the Metropolitan Livable Communities Funds. (j) Recipient warrants that it will provide Grantor with all documentation and materials necessary for Grantor to comply with Grantor's accounting, audit and report requirements under Section III of the Grant. 4. Event of Default by Recipient. The following shall be Events of Default under this Agreement: (a) any breach or failure of Recipient to perform any term or condition of this Agreement or an Event of Default by Developer under the Contract (as defined in Recital A hereof) and such failure continues for thirty (30) days after Grantor has given written notice to Recipient specifying such default or breach unless Grantor agrees in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, Grantor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Recipient within the applicable period and is being diligently pursued until DJG- 190361v2 3 CL205 -14 the Default is corrected, but no such extension shall be given for a Default that can be cured by the payment of money; (b) any representation or warranty made by Recipient herein or in any document, instrument, or certificate given in connection with this Agreement is false when made; or (c) Recipient is dissolved, liquidated, or wound up, or fails to maintain its existence as a going concern in good standing (excepting reorganizations, consolidations, and mergers into or with affiliates owned by, owning, or under common control of or with such entity or into the parent of such entity, provided the succeeding organization assumes and accepts such entity's obligations hereunder). 5. Grantor's Remedies upon Recipient's Default. Upon an Event of Default by Recipient and after receipt of written notice from Grantor, Grantor shall have the right to exercise any or all of the following remedies (and any other rights and remedies available to it): (a) suspend its performance under this Grant Agreement; and (b) take any action provided for at law to enforce compliance by Recipient with the terms of this Grant Agreement. 6. Grantor's Costs of Enforcement of Agreement. If an Event of Default has occurred as provided herein, then upon demand by Grantor, Recipient will pay or reimburse Grantor for all expenses, including all fees and disbursements of legal counsel, incurred by Grantor in connection with the enforcement of this Agreement, or in connection with the protection or enforcement of the interests of Grantor in any litigation or bankruptcy or insolvency proceeding or in any action or proceeding relating in any way to the transactions contemplated by this Agreement. 7. Miscellaneous. (a) Waiver. The performance or observance of any promise or condition set forth in this Agreement may be waived only in writing. No delay in the exercise of any power, right or remedy operates as a waiver thereof, nor shall any single or partial exercise of any other power, right or remedy. (b) Assignment. This Agreement shall be binding upon Recipient and its successors and assigns and shall inure to the benefit of Grantor and its successors and assigns. All rights and powers specifically conferred upon Grantor may be transferred or delegated by Grantor to any of its successors and assigns. Recipient's rights and obligations under this Agreement may be assigned only when such assignment is approved in writing by Grantor. (c) Law Governing; Other Matters. This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota. Any disputes, DJG- 190361v2 4 CL205 -14 controversies, or claims arising out of this Agreement shall be heard in the state or federal courts of Minnesota, and all parties to this Agreement waive any objection to the jurisdiction of these courts, whether based on convenience or otherwise. If any provision or application of this Agreement is held unlawful or unenforceable in any respect, such illegality or unenforceability shall not affect other provisions or applications which can be given effect, and this Agreement shall be construed as if the unlawful or unenforceable provision or application had never been contained herein or prescribed hereby. All representations and warranties contained in this Agreement or in any other agreement between Recipient and Grantor shall survive the execution, delivery and performance of this Agreement and the creation and payment of any indebtedness to Grantor. Recipient waives notice of the acceptance of this Agreement by Grantor. 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. (d) Titles. Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. (e) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument (f) Notice. All notices required hereunder shall be given by depositing in the U.S. mail, postage prepaid, certified mail, return receipt requested, to the following addresses (or such other addresses as either party may notify the other): To Grantor: 590 40th Avenue NE Columbia Heights, MN 55421 Attn: City Manager To Recipient: c/o Crest View Corporation 4444 Reservoir Boulevard N.E. Columbia Heights, MN 55421 8. Indemnification. Recipient shall and does hereby agree to indemnify against and to hold Grantor, and its officers, agents, and employees, harmless of and from any and all liability, loss, or damage which Grantor may or might incur by reason of or arising from any and all claims and demands whatsoever which may be asserted against it by reason of any alleged obligations or undertakings on Grantor's part to perform or discharge any of the terms, covenants or agreements contained herein or pursuant to the Grant (except those obligations under the Grant that are within the sole control of Grantor). Should Grantor, or its officers, agents, or employees incur any such liability or be required to defend against any such claims or demands, or should a judgment be entered against Grantor, the amount thereof, including costs, expenses, and attorneys fees, shall bear interest thereon at the rate then in effect on the Note, shall be added to the Grant, and Recipient shall reimburse Grantor for the same immediately upon demand, and DJG- 190361v2 5 CL205 -14 upon the failure of Recipient so to do, Grantor may declare the Grant immediately due and payable. Nothing in this Agreement shall be deemed to waive or limit any immunity from or limitation on liability to which Grantor is entitled, under Minnesota Statutes, Chapter 466 or otherwise. [REST OF PAGE INTENTIONALLY BLANK] DJG- 190361v2 6 CL205 -14 IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the proper officers thereunto duly authorized on the day and year first written above. CITY OF COL, MBIA H . MINNESOTA 1 By V �� � Its Mayor By ../, / Its City Manager DJG- 190361v2 7 CL205 -14 CREST VIEW ONDC I By I .1!1:. < 1!f Its I DJG- 190361v2 8 CL205 -14 EXHIBIT A TO GRANT AGREEMENT PROPERTY LEGAL DESCRIPTION Lot 1, Block 3, NORTHWESTERN 2 ADDITION, Anoka County, Minnesota. DJG-190361v2 A -1 CL205 -11 EXHIBIT B TO GRANT AGREEMENT INSERT GRANT DOCUMENT DJG- 190361v2 B -1 TC3: 732734 v02 01/04/2002 CL205 -11 Execution Copy • GRANT AGREEMENT (Livable Community Act Funds — Crest View ONDC I) THIS AGREEMENT is made this a 3 day of — TYl c:,.,c) , 2001 by and between Crest View ONDC I, a nonprofit corporation under the laws of the state of Minnesota ( "Recipient ") and the City of Columbia Heights, Minnesota, a municipal corporation under the laws of the state of Minnesota ( "Grantor "). RECITALS A. Columbia Heights Transition Block LLC, a limited liability company under the laws of the state of Minnesota ( "Developer") has requested that the Columbia Heights Economic Development Authority ( "Authority ") enter into certain agreements, including but not limited to a contract for private development with Developer dated 'IA %A.el. 3, 2001 (the "Contract "), and that the City of Columbia Heights, Minnesota ( "Grantor") enter into certain agreements with Crest View ONDC I, a nonprofit corporation under the laws of the state of Minnesota ( "Recipient "), all with regard to the construction of a 50 -unit senior rental facility (the "Project ") to be located on certain property in the City legally described on Exhibit A attached hereto (the "Property "). B. In order to provide additional financing for the Project and thereby improve and retain affordable housing in the City, Grantor agrees to grant to Recipient the sum of Two Hundred Nine Thousand Six Hundred Fifty and no /100ths Dollars ($209,650) from funds received by Grantor from the Metropolitan Council, a public corporation and political subdivision of the state created pursuant to Minnesota Statutes, Chapter 473 (the "Metropolitan Council "), such funds provided to Grantor pursuant to Livable Communities Demonstration Account Grant No. SG -99 -47 (the "Grant "), a copy of which is attached hereto as Exhibit B and the terms of which are hereby incorporated by reference. ACCORDINGLY, to induce Grantor to make the Grant to Recipient, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. The Grant Amount. Subject to and upon the terms and conditions of this Agreement, Grantor agrees to grant to Recipient the sum of Two Hundred Nine Thousand Six Hundred Fifty and no /100ths Dollars ($209,650), or so much thereof as is disbursed to Recipient in accordance with this Agreement (the "Grant "). Grantor shall have no obligation to disburse any portion of the Grant to Recipient unless and until Grantor receives an equivalent amount of funds from the Metropolitan Council pursuant to the Grant. Proceeds of the Grant shall be disbursed in accordance with Section 2 hereof. DJG- 190361 v3 1 CL205.14 2. Disbursement of Grant Proceeds. (a) On such date as requested by Recipient (the "Closing Date "), Grant proceeds shall be paid to Recipient or a trustee or escrow agent designated by Recipient. Recipient warrants that it shall use Grant proceeds only for purposes and activities related to the Project and permitted by the Grant. (b) The following events shall be conditions precedent to the payment of the Grant proceeds to Recipient on the Closing Date: (i) Recipient having executed and delivered to Grantor prior to the Closing Date, without expense to Grantor, executed copies of this Agreement; (ii) Recipient having provided evidence satisfactory to Grantor that Recipient has established a separate accounting system for the Project, for the purpose of recording the receipt and expenditure of the Grant proceeds; (iii) Recipient having paid all attorney fees, costs, and expenses incurred by Grantor in connection with this Agreement; (iv) Recipient having delivered to Grantor prior to the Closing Date, the Contract, fully approved and executed by all parties thereto; and (v) Recipient having provided Grantor with evidence satisfactory to Grantor that Recipient has adequate funds to complete the Project. 3. Representations and Warranties. Recipient represents and warrants to Grantor that: (a) Recipient is a nonprofit corporation duly organized and existing in good standing under the laws of the State of Minnesota. (b) Recipient is duly authorized and empowered to execute, deliver, and perform this Agreement and to receive the Grant from Grantor. (c) The execution and delivery of this Agreement, and the performance by Recipient of its obligations hereunder, do not and will not violate or conflict with any provision of law or the organizational documents of Recipient and do not and will not violate or conflict with, or cause any default or event of default to occur under, any agreement binding upon Recipient. (d) The execution and delivery of this Agreement has been duly approved by all necessary action of Recipient, and this Agreement has in fact been duly executed and delivered by Recipient and constitutes its lawful and binding obligation, legally enforceable against it. DJG- 190361v3 2 CL?05- 14 (e) Recipient warrants that it shall keep and maintain books, records, and other documents relating directly to the receipt and disbursements of Grant proceeds and that any duly authorized representative of Grantor shall, at all reasonable times, have access to and the right to inspect, copy, audit, and examine all such books, records, and other documents of Recipient respecting the Grant until the completion of all closeout procedures and the final settlement and conclusion of all issues arising out of this Grant. (f) Recipient warrants that it has fully complied with all applicable state and federal laws pertaining to its business and will continue said compliance throughout the terms of this Agreement. If at any time Recipient receives notice of noncompliance from any governmental entity, Recipient agrees to take any necessary action to comply with the State or Federal law in question. • (g) Recipient warrants that it will use the proceeds of the Grant made by Grantor solely for the purposes described in Section 2 hereof. (h) Recipient warrants that it will comply with all federal, state, and local laws, rules, and regulations applicable to construction and operation of the Project, including but not limited to those pertaining to occupational health and safety, stormwater discharge, and nondiscrimination. Without limitation of the foregoing, Recipient further specifically warrants that it will comply with all applicable requirements of the Metropolitan Council's Interim Strategy to Reduce Nonpoint Source Pollution to All Metropolitan Water Bodies. (i) To the extent required by the Grant, Recipient shall acknowledge the Grant in promotional materials, press releases, reports, and publications relating to the Project by including in such materials the following or similar language: This project was financed in part with a grant from the Metropolitan Council through the Livable Communities Demonstration Account of the Metropolitan Livable Communities Funds. (j) Recipient warrants that it will provide Grantor with all documentation and materials necessary for Grantor to comply with Grantor's accounting, audit and report requirements under Section III of the Grant. 4. Event of Default by Recipient. The following shall be Events of Default under this Agreement: (a) any breach or failure of Recipient to perform any term or condition of this Agreement or an Event of Default by Developer under the Contract (as defined in Recital A hereof) and such failure continues for thirty (30) days after Grantor has given written notice to Recipient specifying such default or breach unless Grantor agrees in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, Grantor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Recipient within the applicable period and is being diligently pursued until DJG- 190361 v3 3 CL.05 -14 the Default is corrected, but no such extension shall be given for a Default that can be cured by the payment of money; (b) any representation or warranty made by Recipient herein or in any document, instrument, or certificate given in connection with this Agreement is false when made; or (c) Recipient is dissolved, liquidated, or wound up, or fails to maintain its existence as a going concern in good standing (excepting reorganizations, consolidations, and mergers into or with affiliates owned by, owning, or under common control of or with such entity or into the parent of such entity, provided the succeeding organization assumes and accepts such entity's obligations hereunder). 5. Grantor's Remedies upon Recipient's Default. Upon an Event of Default by Recipient and after receipt of written notice from Grantor, Grantor shall have the right to exercise any or all of the following remedies (and any other rights and remedies available to it): (a) suspend its performance under this Grant Agreement; and (b) take any action provided for at law to enforce compliance by Recipient with the terms of this Grant Agreement. 6. Grantor's Costs of Enforcement of Agreement. If an Event of Default has occurred as provided herein, then upon demand by Grantor, Recipient will pay or reimburse Grantor for all expenses, including all fees and disbursements of legal counsel, incurred by Grantor in connection with the enforcement of this Agreement, or in connection with the protection or enforcement of the interests of Grantor in any litigation or bankruptcy or insolvency proceeding or in any action or proceeding relating in any way to the transactions contemplated by this Agreement. 7. Miscellaneous. (a) Waiver. The performance or observance of any promise or condition set forth in this Agreement may be waived only in writing. No delay in the exercise of any power, right or remedy operates as a waiver thereof, nor shall any single or partial exercise of any other power, right or remedy. (b) Assignment. This Agreement shall be binding upon Recipient and its successors and assigns and shall inure to the benefit of Grantor and its successors and assigns. All rights and powers specifically conferred upon Grantor may be transferred or delegated by Grantor to any of its successors and assigns. Recipient's rights and obligations under this Agreement may be assigned only when such assignment is approved in writing by Grantor. (c) Law Governing: Other Matters. This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota. Any disputes, DIG- 190361v3 4 CL205 -14 controversies, or claims arising out of this Agreement shall be heard in the state or federal courts of Minnesota, and all parties to this Agreement waive any objection to the jurisdiction of these courts, whether based on convenience or otherwise. If any provision or application of this Agreement is held unlawful or unenforceable in any respect, such illegality or unenforceability shall not affect other provisions or applications which can be given effect, and this Agreement shall be construed as if the unlawful or unenforceable provision or application had never been contained herein or prescribed hereby. All representations and warranties contained in this Agreement or in any other agreement between Recipient and Grantor shall survive the execution, delivery and performance of this Agreement and the creation and payment of any indebtedness to Grantor. Recipient waives notice of the acceptance of this Agreement by Grantor. 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. (d) Titles. Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. (e) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument (f) Notice. All notices required hereunder shall be given by depositing in the U.S. mail, postage prepaid, certified mail, return receipt requested, to the following addresses (or such other addresses as either party may notify the other): To Grantor: 590 40th Avenue NE Columbia Heights, MN 55421 Attn: City Manager To Recipient: 325 Cedar Street Suite 400 St. Paul, MN 55101 8. Indemnification. Recipient shall and does hereby agree to indemnify against and to hold Grantor, and its officers, agents, and employees, harmless of and from any and all liability, loss, or damage which Grantor may or might incur by reason of or arising from any and all claims and demands whatsoever which may be asserted against it by reason of any alleged obligations or undertakings on Grantor's part to perform or discharge any of the terms, covenants or agreements contained herein or pursuant to the Grant (except those obligations under the Grant that are within the sole control of Grantor). Should Grantor, or its officers, agents, or employees incur any such liability or be required to defend against any such claims or demands, or should a judgment be entered against Grantor, the amount thereof, including costs, expenses, and attorneys fees, shall bear interest thereon at the rate then in effect on the Note, shall be added to the Grant, and Recipient shall reimburse Grantor for the same immediately upon demand, and DJG- 190361v3 5 CL205 -14 upon the failure of Recipient so to do, Grantor may declare the Grant immediately due and payable. Nothing in this Agreement shall be deemed to waive or limit any immunity from or limitation on liability to which Grantor is entitled, under Minnesota Statutes, Chapter 466 or otherwise. [REST OF PAGE INTENTIONALLY BLANK] • • DJG-190361v3 6 CL205 -I4 IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the proper officers thereunto duly authorized on the day and year first written above. CITY OF COLUMBIA HEIG S, ` 11 SOTA B /' ' ��� -�► - Its Mayor By i' ' Lf Its City Manager DJG- 190361v2 7 CL205 -14 CREST VIEW ONDC I By Its By Its • DJG- 190361v3 8 CL205 -14 EXHIBIT A TO GRANT AGREEMENT PROPERTY LEGAL DESCRIPTION Lot 1, Block 3, Northwestern 2 Addition, Anoka County, Minnesota DJG- 190361v3 A -1 CL205 -11 EXHIBIT B TO GRANT AGREEMENT INSERT GRANT DOCUMENT • DIG-190361 v3 B-1 CL?05 -11 • Execution Copy P.I.L.O.T. AGREEMENT (Columbia Court Townhomes Project) This Agreement is entered into as of the 1st day of March, 2001, by and between Columbia Heights Housing Limited Partnership I a Minnesota Limited Partnership (the "Owner "), and the City of Columbia Heights, Minnesota (the "City"). WHEREAS, the Owner and the City have agreed to the Owner's construction of three (3) units of low -rent housing (the "Units ") in accordance with a Cooperation Agreement by and among the City, the Minneapolis Public Housing Authority (the "MPHA "), and the Columbia Heights Economic Development Authority (the "Authority") dated YVk 0 .,,, c ,k . c , 200 1 (the "Cooperation Agreement "); and WHEREAS, as set forth in the Cooperation Agreement, the Units will be exempt from real and personal property taxation pursuant to Minnesota Statutes, Section 469.040; and WHEREAS, as envisioned by the Cooperation Agreement, the City and the Owner desire to enter into an agreement by which the Owner will make certain payments in lieu of taxes. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Property Legal Description. The land referred to in this commitment and on which the Units are located is described in the attached Exhibit A and is referred to herein as the "Property". 2. Payment in Lieu of Taxes. The Owner agrees that it shall pay to the City annual payments in lieu of taxes in an amount equal to the amount of property taxes that the City would • have assessed against the Units for the provision of services for police, fire, sanitation, road maintenance, and other public services and facilities if the Units were not exempt from taxation. This amount shall be referred to herein as the "PILOT ". Charges for sanitation services shall be included only if the City provides such services to the Units. 3. Procedure. The City will cause the Units to be valued periodically on the same basis and in the same manner that taxable property in the City is appraised for tax purposes and shall provide the Owner with written notice of the value so determined. The City shall annually calculate the amount which will be payable to the City as PILOT and shall, on or before December 31 in each year, commencing with the year 2001, provide the Owner written notice of the amount so calculated. The Owner agrees to pay the City each fiscal year, commencing with the year 2002, the amount calculated as the PILOT. The PILOT shall be due and payable on the same dates in each year as real estate taxes are due and payable under laws of the State of Minnesota, and shall be paid by check directly to the City. Any portion of the PILOT not paid when due shall bear interest at the same rate, calculated in the same manner, as delinquent property taxes under the laws of the State of Minnesota. DIG- I89789v2 1 CL205 -11 4. Termination. This Agreement shall continue in effect until such time as the Units are no longer exempt from real and personal property taxation pursuant under Minnesota law. 5. Governing Law; Venue. This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota. Any disputes, controversies, or claims arising out of this Agreement shall be heard in the state or federal courts of Minnesota, and all parties to this Agreement waive any objection to the jurisdiction of these courts, whether based on convenience or otherwise. 6. Notices. All notices, reports or other communications relating to this Agreement shall be sent to the parties at the following addresses, unless otherwise provided by one party to the other party in writing: To the Owner: Columbia Heights Housing Limited Partnership I 325 Cedar Street, Suite 400 St. Paul, Minnesota 55101 To the City: City of Columbia Heights 590 40th Avenue NE Columbia Heights, MN 55421 . 7. 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 Property and any such deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. 8. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections . of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. 9. Counterparts: Modifications. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. This Agreement may not be modified, waived, or otherwise amended except by a writing signed by the Owner and the City. 10. Attorney Fees. Whenever any Event of Default occurs and if the City 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 Owner under this Agreement, the Owner agrees that it shall, within ten (10) days of written demand by the City, pay to the City the reasonable fees of such attorneys and such other expenses so incurred by the City. DIG- 189789v2 2 CL205 -11 ti 11. Continuation of Certain Obligations. Nothing in this Agreement shall act to modify, amend, or otherwise relieve the Owner of its obligations and undertakings as stated in any other agreement to which the Owner and the City, or the Owner and the Authority, are parties. 12. Termination of Agreement. Upon termination of this Agreement, no party hereto shall have any obligation or rights hereunder and this Agreement shall be of no further force and effect, except as such provisions herein are expressly stated to survive such termination. [REST OF PAGE INTENTIONALLY BLANK] • DJG- 189789v2 3 CL205 -11 • IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. CITY OF COLUMBIA ! i TS ANwi WA,/ J A L � S Ma o' - By Its City Manager STATE OF MINNESOTA ) ) SS COUNTY OF Anoka ) The foregoing instrument was acknowledged before me on Marc 26 , 2001, by SAry Peterson , Walter Fehst and , respectively the Mayor , C i tv Manager , and of the City of Columbia Heights, Minnesota, a municipal corporation under the laws of the State of Minnesota. IN WITNESS WHEREOF, I have hereunto set my hand and official seal on r z(. , 2001. 1 • CL .. _ • Notary Public 4. , - "" PATRICIA V. MUSCOVITZ NOTARY PUBLIC - MINNESOTA " I V My Comm. Exp. Jan. 31, 2005 DJG- 189789v2 4 CL205- I 1 OWNER COLUMBIA HEIGHTS HOUSING LIMITED PARTNERSHIP I By Columbia Heights Townhomes, LLC Its General Partner By: , 4 Its: T� STATE OF MINNESOTA ) ) SS COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me on March 23, 2001, by Keith S. Jans, the treasurer of Columbia Heights Townhomes, LLC, a Minnesota limited liability company, on behalf of the company. I IN WITNESS WHEREOF, I have hereunto_ et my hand and official seal on tacit a3, 2001. L O Z /A //l-l� G DAAAAWAAMPA - THERESA L. BERG "Public • ` 0. NOTARY PUBLIC — MINNESOTA ` # l ' MY Comm. 3 Jan. 31, 2005 2 0 m This document was drafted by: KENNEDY & GRAVEN, Chartered 470 Pillsbury Center Columbia Heights, Minnesota 55402 111G- 189789v2 5 CL205 -11 EXHIBIT A LEGAL DESCRIPTION OF THE LAND • [need legal description here] DJG- 189789v2 CL205 -I 1 A -1 TC3: 732735 v0l 03/04/2001 3 - 2 7 - C es & .,,.soc i Stes ; 1 +512 +249 +0777 # g; 20 •• • ) (EXECUTION COPY 09/26/00 INITIAL AGREEMENT THIS AGREEMENT, made this J J day of j'Jei r , 2000 by and between the Minneapolis Public Housing Authority in and for the City of Minneapolis, a public body • corporate and politic (the "MPHA ") and the Columbia Heights Economic Development Authority, a public body corporate and politic (the "EDA ") is entered into pursuant to Minnesota Statutes, § 471.59 and § 469.012, Subds. 1(11) and 3. WHEREAS, the MPHA has entered into an Annual Contributions Contract ( "MPHA ACC ") with the United States Department of Housing and Urban Development ( "HUD ") for funding the capital and operating costs of low rent public housing units and projects throughout the Minneapolis -St. Paul metropolitan area; and WHEREAS, the MPHA has established the Metropolitan Housing Opportunities Program ( "MHOP ") pursuant to which it will cooperate with suburban counties and municipalities in the construction and operation of qualified housing units (the "MHOP Units "); and WHEREAS, Columbia Heights Housing Limited Partnership I, a Minnesota limited partnership (the "Owner ") has applied to the MPHA to locate three (3) MHOP Units within its development of a 22 -unit multifamily housing project to be known as Columbia Court Townhomes (the "Development ") to be located in the City of Columbia Heights; and WHEREAS, the MPHA and the City have agreed to cooperate in the location of three (3) MHOP Units in the Development; and WHEREAS, the purpose of this Agreement is to define the relationship of the MPHA and • EDA with respect to the planning, construction, ownership and operation of the MHOP Units. NOW, THEREFORE, it is agreed by the parties hereto as follows: I. PROPOSAL. A. The MPHA will prepare and submit to HUD a proposal for development funds in the approximate amount of not to exceed $315,900 (excluding administration funds) and ongoing operating subsidy under the MPHA ACC for the construction and operation of 2 replacement units ( "MHOP Replacement Units ") and 1 incentive unit ( "MHOP Incentive Units "). B. Upon completion of MHOP Units, the MPHA may, without further action by the EDA, assign all documents related thereto to the Metropolitan Council for ongoing administration of the operating subsidy and grievance procedures as well as management of the waiting lists (the "Assignment and Reformulation "). In that F: \MNN 12$ O29 \DOCS \INITIAL.DOC 1 LNfFLAL AGREEMENT - - 27 -01; .:03AM :HoIries & Assoc Assoc1 ;1 +612 +2 =9 +0777 # 10 20 . event, MHOP Units shall be removed from the MPHA ACC and added to the ACC of the Metropolitan Council (the "Metro ACC "). Subsequent to the Assignment and Reformulation: 1. All of the duties of the MPHA described herein that are yet to be performed shall be performed by the Metropolitan Council; 2. All of the rights of the MPHA described herein shall be rights of the Metropolitan Council; and 3. The Operating Subsidy described in Section VII will be determined or re- determined in accordance with the Metro ACC and based upon the Metropolitan Council Fiscal Year. C. The MPHA shall: 1. Gather and assemble all required Development information, including financial pro formas and design and construction documents. 2. Prepare required documentation, including initial operating budgets, in conformity with federal regulations and HUD requirements. 3. Administer the processing of the Proposal and obtaining their approval by HUD. 4. Provide liaison with the Metropolitan Council and the Minnesota Housing Finance Agency ( "MHFA ") with respect to all other funding effecting the Developments. 5. Monitor the application of federal Davis -Bacon wage requirements that shall apply to the Developments, provided that the Housing Development Agreement between the MPHA and the Owner shall require the Owner and construction contractors to provide the MPHA such information as it may reasonably require in order to meet its obligation hereunder II. DEVELOPMENT. The MPHA shall enter into a Housing Development Agreement with the Owner, which will: A. Establish the design and construction specifications of the three (3) MHOP Units as one (1) two- bedroom, one (1) three - bedroom unit and one (1) four - bedroom unit; B. Confirm the amenities to be provided within and around the Development; C. Provide that the level of MHOP funding for the Development will equal certified construction costs (pro rata based on bedroom size); :W1'41 \029 DOCS\INITIAL.D(X: 2 INITIAI. A(iRF.FMCNT 2- 27- O1: •i: 03AM;Ho InOs & Associates ;1 +B:2 +249 +0777 # '1 20 D. Provide that the operating subsidy reserve fund be drawn upon in the event operating subsidies paid by the MPHA are inadequate to pay the difference between MHOP Unit income and expenses, as defined below; E. Provide for the draw -down of public housing development funds on a pro rata basis with other Development funding sources; F. Establish a system by which the MHOP units within the Development will not be physically identified, but rather will "float" throughout the Development depending upon vacancies and availability; G. Identify the system for construction inspections, cost certifications and development audits; H. Require execution by the Owner of the Regulatory and Operating Agreement and a Declaration of Restrictive Covenants creating a covenant running with the land obligating the Owner and all successors in interest to maintain and operate the MHOP Units in compliance with all applicable requirements of Section 5 of the United States Housing Act of l 93 and the ACC; and III. MANAGEMENT. The Regulatory and Operating Agreement shall provide that the Owner or its agent (the "Managing Agent ") shall manage all the units at the Development, including the MHOP Units and: A. shall comply with all federal law, regulations and policies and the MPHA ACC. B. shall provide the MPHA, the EDA and/or HUD with access to all books and records maintained by the Managing Agent with respect to the MHOP Units. C. shall be subject to termination and replacement as to the entire Development if it is determined by the MPHA, subject to appropriate judicial review by any court of competent jurisdiction, that the Managing Agent or any successor has materially violated, breached, or failed to comply with any provision of federal law, regulation, policy, or the MPHA ACC. D. shall receive from the MPHA in cooperation with the Metropolitan Council the names of persons and families who meet the income and waiting list criteria for admission into the MHOP Units and shall carry out such administrative functions as (but not limited to) applicant interviews and screening, verifications, determination of suitability for admission, unit assignment, execution of leases, terminations and evictions. IV. WAITING LIST MANAGEMENT. The MPHA in cooperation with the Metropolitan Council shall maintain the waiting lists for those applying for housing in the MHOP Units, using applicable federal, MHOP and local priorities. F:\MNNI ?5\u ?9 \DOCS \INITIAL.DOC INITIAL. AGREEMENT 2 2 G1 ; :Homes & Assoc iates ;1.512 + +0777 2 20 A. Applicants for the two (2) MHOP Replacement Units will be selected from waiting lists based upon the following priorities: 1. First, to families displaced by the demolition of Minneapolis public housing units pursuant to that certain Consent Decree entered in settlement of Hollman et al. vs. Cisneros et al., U.S.D.C. (Minn. Dist., 4th Div.) Civil Case No. 4 -92 -712. 2. Second, to families on the MPHA waiting and transfer lists who live in minority or poverty concentrated areas in the metropolitan area. 3. Third, to families on the MPHA waiting list. This will include all families wishing to participate in MHOP, including both Minneapolis waiting list families and applicants from the City. The MPHA will automatically place all applicants from the local waiting list on its list, thus making both Minneapolis and City of Columbia Heights residents equally eligible for this priority. B. The one (1) MPHA Incentive Unit will be filled pursuant to local waiting lists that will also be administered by the Metropolitan Council. The MPHA will have full and complete control over the management of the waiting list, and the Managing Agent will have complete control over the selection of residents, so long as the MHOP priorities and .all federal and state laws are followed. The MPHA will promptly and continuously place all Minneapolis applicants for placement on the MHOP waiting list. If the referral system results in no eligible and suitable tenant with Consent Decree priorities, the unit can be filled with other applicants on the waiting list. The MPHA shall provide HUD a certification, in the form attached hereto as Exhibit A, certifying that its waiting list procedures will conform with applicable law and regulations. V. POST CONSTRUCTION DUTIES. As a part of the HUD close -out requirements with respect to the MHOP Units, the MPHA shall: A. Designate the End of the Initial Operating Period ( "EIOP ") and shall coordinate the inclusion of the MHOP Units in the MPHA Annual Operating Budget. B. Within 12 months of EIOP, gather information and provide HUD with the Actual Development Cost Certificate ( "ADCC "). C. Cause the preparation of an audit by an independent public accountant as a part of its submission of the ADCC. F. \MNN 125\1'- 9\DOCS \INfM'IAL.DOC 4 IN ITIAL AGREEMENT 3-27-01: :03AM; HO I nos 2 Associates ; 1 ?F 1 3: 20 D. Monitor the Managing Agent's procedures and results in screening applicants provided from the MPHA waiting lists and report the results thereof to HUD as may be requested or required. VI. TAX CERTIFICATIONS. The MPHA shall provide in its agreements with the Owner that the Owner, or its Managing Agent, shall annually prepare and present to the City a certification to the appropriate assessing officials of the number of MHOP units located within the Development. The City shall execute and forward such certification pursuant to Minnesota Statutes, Section 469.040, subdivision 4. VII. OPERATING SUBSIDY. Under the MPHA ACC, IIUD contracts to provide an operating subsidy to the MPHA for all units subject to the MPHA ACC, which will include these MHOP Units. It is therefore necessary to establish a methodology by which the MPHA will pay operating subsidy to the Owner, of the MHOP Units. That system, to be described more fully in a Regulatory and Operating Agreement between the MPHA and the Owner, will be generally as follows: A. As used in this Section VII, the following terms shall have the following meanings: 1. "Allowed Project Expenses" means all necessary and reasonable operating expenses of the Development for any period, including: I (a) all ordinary and necessary expenses of operations of the Development shown as line items on Form HUD - 92547 -A (Budget Worksheet), exclusive of real estate taxes and debt service requirements of any lender and exclusive of utility expenses which are the direct responsibility of tenants; provided, however, that if the Owner shall be required to borrow funds for repairs, replacements or improvements not funded from a Development • reserve fund for replacements, debt service requirements for any such borrowing approved by the MPHA (which approval shall not unreasonably be withheld) shall be included in Allowed Project Expenses; provided, further, that MHOP Unit Expenses (as hereinafter defined) shall be reduced by any amounts contributed by the MPHA or EDA, on a grant basis, for repairs, replacements or improvements; (b) management fees payable pursuant to the Property Management Agreement; (c) legal expenses associated with the operation of the Development as well as accounting and audit expenses, including tax return preparation expenses, permitted to be charged as project expenses pursuant to HUD Handbook 4370.2 REV -1, Financial Operations � I I': \MNN 125 %029\DOCS \IN ITI AI..DOC 5 IN rriAL. AORF.F.MFNT 2- 2 7 - O 1 1 :03AM : HOIfns $ ASSOC 1 3tes ;1 +512 +2 +0777 # 14/ 20 and Accounting Procedures for Insured Multifamily Projects, or any successor thereto; and (d) reserves for replacements and for any other purposes, as required by any lender and approved by the MPHA. 2. "MHOP Percentage" shall mean the higher of (i) the number of MHOP Units. divided by the total number of units at the Development, or (ii) the net rentable square feet of the MHOP Units (assuming one (1) two - bedroom unit, one (1) three - bedroom unit and one (1) four - bedroom unit), divided by the net rentable square feet of all the units at the Development. 3. "Iv1HOP Unit Expenses" shall mean (A) Allowed Project Expenses, multiplied by the MHOP Percentage, plus (B) the payment in lieu of real estate taxes made in respect of the MHOP Units, if any, plus (C) amounts paid to MHOP Unit occupants as utility reimbursement (i.e., "negative rent "); provided, however, that if any line item expense shall be included in Estimated MHOP Unit Expenses on the basis of a percentage other than the MHOP Percentage pursuant to the second sentence of Section VII.B.(1) hereof, such expense shall be included in MHOP Unit Expenses on the basis of the same percentage; 4. "MHOP Unit Income" shall mean all income received in respect of MHOP Units, including tenant rents ( "Tenant Rent" as defined in 24 CFR § 913.102) and any other sources of income received in respect of MHOP Units, including all types of revenue shown as line items on Form HUD 92547 -A, but exclusive of operating subsidy. 5. "Estimated Allowed Project Expenses," "Estimated M1-IOP Unit Expenses," and "Estimated MHOP Unit Income" shall mean the estimated • amounts of such items for any period determined in accordance with subsection (B) hereof. B. Not later than 90 days prior to the anticipated Date of Full Availability ( "DOFA ") for occupancy of any unit of the Development, and not later than 150 days before the first day of any subsequent MPHA Fiscal Year, the Owner shall prepare and submit to the MPHA a proposed operating budget for the following MPHA Fiscal Year (or, in the case of the year in which DOFA occurs, the remainder thereof) ( "Operating Budget "). The Operating Budget shall project Estimated Allowed Project Expenses, Estimated MHOP Unit Expenses, and Estimated MHOP Unit Income for the subject period, subject to the following conditions: 1. Estimated Allowed Project Expenses shall be as reasonably estimated by the Owner. The MPHA may comment upon and propose changes to the Estimated Allowed Project Expenses as provided by the Owner and set forth in the Operating Budget submitted to the MPHA, but the Owner F: IMNNI '_ \U'_ \DOC:S\INITIAI,. 6 INITI AGKEIMENT .9-27-01: • 1 :03AM:NO l r1cs 8 -.sSOC 1 atcs : 1 +512+2 +0 # 15 20 shall not be required to reduce any estimated expense below the Development -wide amount for such expenditure reasonably anticipated by the Owner for the period. Ilowever, the portion of any line item within the Estimated Allowed Project Expenses included in Estimated MHOP Unit Expenses shall be altered from the MHOP Percentage if the MPHA demonstrates satisfactorily that allocation of such item to the MHOP Units on the basis of the MHOP Percentage is inappropriate (e.g., marketing and advertising costs, if such relate solely or preponderantly to the non MHOP units). 2. Until the completion of initial rent -up of the MHOP Units, Estimated MHOP Unit Income shall be determined on the basis of assumed tenant rent collections for each unit size equal to the average tenant rent collections for all units of comparable size owned and administered by the MPHA in the most recent annual or semiannual period for which such statistics are available at the time of the Owner's submission of the Operating Budget for such period to the MPHA. For each subsequent MPHA Fiscal Year, Estimated MHOP Unit Income shall be determined on the basis of the aggregate tenant rents actually collected for all MHOP Units during the first six months of the preceding MPHA Fiscal Year. Notwithstanding the foregoing, with respect to any MPHA Fiscal Year, the MPHA may agree to project Estimated MHOP Unit Income at a level different from that which would otherwise be established pursuant to the preceding sentence, taking into account (a) the reasonably anticipated level of incomes of tenants anticipated to be admitted to the MHOP Units during such period, based on anticipated turnover and the admissions policies, and (b) reasonably anticipated increases in income levels of existing tenants based on tenant participation in employment training and other supportive services programs. • C. During each MPHA Fiscal Year commencing with the first MPHA Fiscal Year after DOFA, and subject to any limitations arising from application of Section 20 (e) of the Act and operation of the Development Operating Subsidy Cap, the MPHA shall pay to the Owner an amount equal to (1) Estimated MHOP Unit Expenses for such period, less (2) Estimated MHOP Unit Income for the period (the "Operating Subsidy Requirement "). The MPHA shall pay to the Owner, on the first day of each month of an MPHA Fiscal Year, one - twelfth (1/12) of the Operating Subsidy Requirement for such MPHA Fiscal Year; provided, however, that the Owner and the MPHA may agree, upon determination of the Operating Budget and Operating Subsidy Requirement for any MPHA Fiscal Year, to provide for unequal monthly payments for such year. VIII. REGULATORY AND OPERATING AGREEMENT RESPONSIBILITY. The Regulatory and Operating Agreement provides for ongoing joint monitoring and decision- making by the MPHA and HUD. • f: \MNNI25 \029 \DOCS\INITIAL.D(>C 7 INI'T'IAL A(iREF.MEN I' 3 -27 -01 ; - i :03AM:Ho I ries S Assoc i atoc ; 1 +61 +2 <9 +0777 # 16, 20 IX. RESERVE FUND. An operating reserve will be created by the Owner from its funds. The reserve will equal three years' estimated operating subsidy for the MHOP Units, but will be allowed to grow through interest earnings and certain operating subsidy reimbursements, if any. Shortfalls, either because of the recalculation of three years' estimated operating subsidy or because of necessary withdrawal from the reserve may be made up by the MPHA, but it is not obligated to do so. X. ADMINISTRATIVE COSTS. The MPHA and EDA shall each bear the costs associated with their respective obligations and responsibilities described herein or otherwise related to the construction and operation of the MHOP Units. XI. TERMINATION AND /OR ASSIGNMENT. A. In the event the EDA wishes to terminate this Agreement it may do so as follows: 1. Ninety (90) days' notice of its intention to terminate shall be served upon the MPHA by the EDA in writing; 2. The EDA shall assume and undertake all of the obligations and responsibilities of the MPHA as set forth in all written agreements relating to Development between the MPHA, on the one hand, and the Owner, the MHFA, HUD or any other contracting party, on the other; 3. The EDA shall become the contracting party with HUD with respect to the annual contributions contract governing the construction and operation of the Development; 4. Subject to HUD's review and approval in writing to such termination; and 5. The MPHA shall be released from all future liability arising from and responsibility for the ongoing construction or operation of the Development. B. All agreements executed by the MPHA - with respect to the Development. shall provide for the eventualities described in this paragraph XI. XII. MISCELLANEOUS. A. No member, official, or employee of the MPHA or EDA 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 MPHA or EDA shall be personally liable to a party to this Agreement, or any successor in interest, in the event of any default or breach F: \MNN125 \029\DOCS \INITIAL.DOC 8 INITIAL AGREEMENT 3- 27 -01 1: O3AM 1 Ho 1 rie5 & "_Soc 1 stcs ;1 +312 +249 +0777 # 17/ 20 by any party or for any amount which may become due a party or successor or on any obligations under the terms of this Agreement. B. The parties hereto, for themselves and their successors and assigns, agree that during the term of this Agreement they will comply with all affirmative action and non - discrimination requirements of applicable federal, state or Local laws or regulations. C. Notwithstanding anything to the contrary herein, neither the City nor the EDA shall have any obligation under this Agreement until the EDA, the City, or both, have entered into. with the Owner, a tax increment financing contract for private development, a planned unit development agreement, any other agreement deemed necessary by the EDA and the City in their respective sole discretion and pursuant to terms satisfactory to the EDA and the City in their respective sole discretion, and until such time the EDA, the City, or both may terminate this Agreement without further obligation on their part immediately upon providing notice to MPHA. D. Except, as expressly set forth herein, nothing in this Agreement shall be construed to create any right in the Owner or any other person not a party to this Agreement. E. Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. F. Except as otherwise expressly provided in this Agreement, a notice, demand, or other communication under the Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally; and 1. in the case of the MPHA, is addressed to or delivered personally to the MPHA at 1001 North Washington Avenue, Minneapolis, MN 55401, Attention: Executive Director; and 2. in the case of the EDA, is addressed to or delivered personally to the EDA at 590 40 Avenue Northeast, Columbia Heights, MN 55421 -3835, 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. G. This Agreement may be executed in any number of counterparts, each of whom shall constitute one and the same instrument. • F: \MINN12i\O29 \DOCS\INITIAL.DOC 9 INITIAL A(',RFF.MMF.NT • = -27-01 :03AM:HOInes S AssociatCS ;1 +S12 + +0 ft i3: 20 IN WITNESS WHEREOF, the MPHA has caused this Agreement to be duly executed in its name and behalf and its seal to be hereunto duly affixed and the EDA has caused this Agreement to be duly executed in its name and behalf on or as of the date first above written. MINNEAPOLIS PUBLIC HOUSING AUTHORITY IN AND FOR THE CITY OF MINNEAPOLIS By ZPV Cornell L. Moore Its Chairman e By Cora McCorvey Its Executive Director • COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY By Its By Its C: \TEMPUNITIAL.DOC INITIAL AGREEMENT EXECUTION COPY • Z-27-01 :- 1 :03AM:HC:nes 3 Associ9LCS :1 +512 + +0777 t# 19/ _0 IN WITNESS WHEREOF, the MPHA has caused this Agreement to be duly executed in its name and behalf and its seal to be hereunto duly affixed and the EDA has caused this Agreement to be duly executed in its name and behalf on or as of the date first above written. MINNEAPOLIS PUBLIC HOUSING AUTHORITY IN AND FOR THE CITY OF MINNEAPOLIS By Cornell L. Moore Its Chairman By Cora McCorvey Its Executive Director COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY B y-�� • By / s if /J /1 Its A;ree janA, F:141NN 125\029 \DOCS \INITIAL.DOC INITIAL AGREEMENT EXECUTION COPY • 2- 27 -01;• 1 : 03AM:Ho roes 2 Assoc a 2tes :1+512 +2 =9 +0777 # 20, 20 • EXHIBIT A Waiting List Certification We hereby certify that the waiting list of the MPHA for the Metropolitan Housing Opportunity Program at the Columbia Heights Limited Partnership I Development in Columbia Heights, Minnesota will conform to the Consent Decree in settlement of Holtman et al. v. Cisneros et al.. U.S.D.C. (Minn. Dist., 4th Div.) Civil No. 4 -92 -712 and 24 CFR Part 5, Part 8, 913, 960 and 966 and applicable Fair Housing and Equal Opportunity laws and regulations. Dated: MINNEAPOLIS ]PUBLIC HOUSING AUTHORITY IN AND FOR THE CITY OF MINNEAPOLIS By `� L Cora McCorvey Its Executive Director C: \TEMmITIAL.DOC A-1 INITIAL AGREEMENT 2- 27 01 :•I:O3AM;Hoines & A= soci :1 +51 +2_D +0777 # 2: 20 EXECUTION COPY 09/18/00 COOPERATION AGREEMENT This Agreement made and entered into this day of Oela , 2000, by and between the Minneapolis Public Housing Authority in and for the City of Minneapolis (the "MPHA "), the Columbia Heights Economic Development Authority (the "EDA ") and the City of Columbia Heights, State of Minnesota (the "Municipality "). WITNESSETH: In consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows: 1. Whenever used in this Agreement: (a) The term "MHOP Units" means three (3) units of low -rent housing hereafter to be developed with the financial assistance of the United States of America acting through the Secretary of Housing and Urban Development (the "Government ") and located within a twenty -two (22) unit townhome development (the "Development ") to be owned by Columbia Heights Limited Partnership I ( "Owner ") and located in the City of Columbia Heights. Minnesota. (b) The term "Taxing Body" or "Taxing Bodies" means the State of Minnesota and any and all political subdivisions or taxing units thereof in which the MHOP Units are situated and which would have authority to assess or levy real or personal property taxes, or to certify such taxes to a taxing body or public officer, to be levied for its use and benefit with respect to the MHOP Units if they were riot exempt from such taxation. (c) The term "Shelter Rent" means the total of all charges to all MHOP Unit tenants for dwelling rents and nondwelling rents (excluding all other income of the MHOP Units) less the cost of all dwelling and nondwelling utilities. 2. The MPHA shall endeavor: (a) to secure a contract with the Government for capital grants and annual contributions for the MHOP Units; (b) to cause the development of the MHOP Units; and (c) to assign to the Metropolitan Council Housing and Redevelopment Authority its responsibilities under this and other agreements relating to the MHOP Units for purposes of ongoing administration thereof. C: \7'EMP\COOP.DOC 1 COOPERATION AGREEMENT 3- 27 -01 : :O3AM:Hoiries 8 Associates ;1 +612 + +0777 # 3: 20 3. (a) Pursuant to Minnesota Statutes, Section 469.040, the MHOP Units are exempt from all real and personal property taxes levied or imposed by any Taxing Body for so long as either (i) the MHOP Units are owned by a public body or governmental agency and are used for low -rent housing purposes, (ii) the MHOP Units are subject to the requirements of Section 5 of the United States Housing Act of 1937, (iii) the contract between the MPHA and the Owner in connection with the MHOP Units continues to obligate the Owner to operate the MHOP Units as a low income housing project, or (iv) any obligations issued in connection with the MHOP Units or any moneys due to the Government in connection with such MHOP Units remain unpaid, whichever period is the longest (the "Exemption Period "). (b) During the Exemption Period, the Municipality, on behalf of the Taxing Bodies, agrees that it will not levy or impose any real or personal property taxes upon the MHOP Units or upon the MPHA with respect thereto. Because the MHOP Units consists of three (3) units located within and under common private ownership with 19 additional housing units which comprise the Development, the property taxes and property tax exemption shall be determined as follows: (i) the tax capacity of the total Development shall be multiplied by a fraction, the numerator of which equals the total number of MHOP Units and the denominator of which equals the total number of housing units in the Development and (ii) the product thereof shall be deducted from said tax capacity. (c) During the Exemption Period, the MPHA shall cause to be included in agreements with the Owner the obligation of the Owner to make annual payments in lieu of taxes ( "PILOT ") in payment for the public services and facilities furnished from time to time without other cost or charge for or with respect to the MHOP Units_ Each PILOT shall be made at the time when real property taxes on the MHOP Units would be paid if it was subject to taxation, and shall be in an amount equal to either (i) five percent (5 %) of the Shelter Rent actually collected but in no event to exceed five percent (5 %) of the Shelter Rent charged with respect to such 1VIHOP Units during the preceding calendar year, or (ii) the amount permitted to be paid by applicable State law in effect on the date such payment is made, whichever is lower. (d) Pursuant to Minnesota Statutes, Section 469.040, subdivision 3, the County of Anoka shall distribute the PILOT among the Taxing Bodies in the proportion which the real property taxes which would have been paid to each Taxing Body for such year if the MHOP Units were not exempt from taxation; provided, however, that no payment for any year shall be made to any Taxing Body in excess of the amount of the real property taxes which would have been paid to such Taxing Body for such year if the MHOP Units were not exempt from taxation. (e) In the event the PILOT is not paid, no lien against the MHOP Units or assets of the MPHA or EDA shall attach, nor shall any interest or penalties accrue or attach on account thereof. 4_ During the Exemption Period, the Municipality, or other appropriate Taxing Body, without cost or charge to the MPHA, EDA or tenants of the MHOP Units (other than PILOT) shall: F:IMNN I2S\0?91DOCS\ COOP. DOC 9 COOPERATION AGREEMENT 2 27- 01: l rtes 3 .Assoc I ates ; , +512 -2.a9 +0777 4/ 20 (a) Furnish or cause to be furnished to the MHOP Units public services and facilities of the same character and to the same extent as are furnished from time to time without cost or charge to other dwellings and inhabitants in the Municipality; (b) Vacate such streets, roads, and alleys within the area of the MHOP Units as may be necessary in the development thereof, and convey without charge to the MPHA. EDA or Owner of the MHOP Units such interest as the Municipality, or other Taxing Body may have in such vacated areas; and, in so far as it is lawfully able to do so without cost or expense to the MPHA, EDA and the Owner of the MHOP Units or to the Municipality or other Taxing Body, cause to be removed from such vacated areas, in so far as it may be necessary, all public or private utility lines and equipment; (c) In so far as the Municipality or other Taxing Body may lawfully do so, (i) grant such deviations from the building code of the Municipality or other Taxing Body as are reasonable and necessary to promote economy and efficiency in the development and administration of the MHOP Units, and at the same time safeguard health and safety, and (ii) make such changes in any zoning of the site and surrounding territory of the MHOP Units as are reasonable and necessary for the development and protection of the MHOP Units and the surrounding territory; (d) Accept grants of easements necessary for the development of the MHOP Units; and (e) Cooperate with the MPHA and EDA by such other lawful action or ways as the Municipality or other Taxing Body and the MPHA may find necessary in connection with the development and administration of the MHOP Units. 5. In the initial development of the MHOP Units, the Municipality further agrees, on behalf of all Taxing Bodies, that within a reasonable time after receipt of a written request therefor from the MPHA or EDA: (a) that it will accept all interior streets, roads, alleys, and adjacent sidewalks within the area of the Development, together with all storm and sanitary sewer mains in such dedicated areas, after the Owner of the MHOP Units, at its own expense, has • completed the grading, improvement, paving, and installation thereof in accordance with specifications acceptable to the Municipality or other Taxing Body; (b) that it will accept necessary dedications of land for, and will grade, improve, pave, and provide sidewalks for, all streets bounding the Developments as are necessary to provide adequate access thereto (in consideration whereof the Owner shall pay to the Municipality or other Taxing Body such amount as are or could be assessed against the Development); and (c) that it will provide, or cause to be provided, water mains, and storm and sanitary sewer mains, leading to the Development and serving the bounding streets thereof (in consideration whereof the Owner of the MHOP Units shall pay to the Municipality or • PAM NNI25'029'[?OCS\CO(JY.DOC 3 COOPERATION AGREEMENT 2 -27 -Oi :•i :03AM:Ho Ines 2. A5SOC1 tCS ;1 +512 +249 +0 5/ 20 other Taxing Body such amount as is or could be assessed against the Development). 6. If by reason of the Municipality's or other Taxing Body's failure or refusal to furnish or cause to be furnished any public services or facilities which it has agreed hereunder to furnish or cause to be furnished to the MPHA, EDA, the Owner or tenants of the MHOP Units, and the MPHA, the EDA or the Owner of the MHOP Units incurs any expense to obtain such services or facilities, then the MPHA or EDA may cause to be deducted the amount of such expense from any PILOT due or to become due to the Municipality or other Taxing Body in respect to the MHOP Units. 7. No Cooperation Agreement heretofore entered into between the Municipality and the IMIPHA or EDA shall be construed to apply to any Units covered by this Agreement. 8. No member of the governing body or any other public official of the Municipality or other Taxing Body who exercises any responsibilities or functions with respect to the MHOP Units during his /her tenure or for one year thereafter shall have any interest, direct or indirect, in the MHOP Units or any property included or planned to be included in the MHOP Units, or any contracts in connection with the MHOP Units or property. If any such governing body member or such other public official of a Taxing Body involuntarily acquires or had acquired prior to the beginning of his/her tenure any such interest, he /she shall immediately disclose such interest to the MPHAor EDA. 9. During the Exemption Period this Agreement shall not be abrogated, changed, or modified without the consent of the Government. The privileges and obligations of the Municipality and other Taxing Bodies hereunder shall also remain in full force and effect with respect to the MHOP Units so long as the beneficial title to the MHOP Units is held by the MPHA or by any other public body or governmental agency, including the Government, authorized by law to engage in the development or administration of low -rent housing projects. If at any time the beneficial title to, or possession of, the MHOP Units is held by such other public body or governmental agency, including the Government, the provisions hereof shall inure to the benefit of and may be enforced by, such other public body or governmental agency, including the Government. 10. The Government, the Municipality and the EDA hereby consent to the future assignment of the MPHA's interest in this Agreement to the Metropolitan Council Housing and Redevelopment Authority. 11. Notwithstanding anything to the contrary herein, neither the City nor the EDA shall have any obligation under this Agreement until the EDA, the City, or both, have entered into, with the Owner, a tax increment financing contract for private development, a planned unit development agreement, any other agreement deemed necessary by the EDA and the City in their respective sole discretion and pursuant to terms satisfactory to the EDA and the City in their respective sole discretion, and until such time the EDA, the City, or both may terminate this Agreement without further obligation on their part immediately upon providing notice to MPHA. F.\MNNI25u29\DOCS \COOP.DOC 4 COOPERATION AGREEMENT _ -27 -0 . .OznaPA:Holmes 3 -._aoc 3L.^.a :1 +512 +2 9 +0 # 6; 20 1 12. Except as expressly set forth herein, nothing in this Agreement shall be construed to create any right in the Owner or any other person not a party to this Agreement. • FANINNl 25 \039U)OCS\COOP.DOC 5 COOPF.RA'fION AC;REL•.MF.N "I = -27 -01 :O3AM;Hoines & . 4ssoci3t^S : 1 +51 +?c9 +0777 # 7/ 20 IN WITNESS WHEREOF the Municipality, the MPHA and the EDA have respectively signed this Agreement and caused their seals to he affixed and attested as of the day and year first above written. MINNEAPOLIS PUBLIC HOUSING AUTHORITY IN AND FOR THE CITY OF MINNEAPOLIS By _ i j Z 14. - Cornell L. Moore Its irman And by $ Cora McCorvey Its Executive Director _ CITY OF COLUMBIA HEIGHTS, MINNESOTA . By Its And by • Its COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY By Its And by Its C: \TEMPCOOP DOC COOPERATION AGREEMENT EXECUTION PAGE - ;:03AM: nines & Assoc i3__.. ;i +Si + +0:' = 2,/ 20 IN WITNESS WHEREOF the Municipality, the MPHA and the EDA have respectively signed this Agreement and caused their seals to be affixed and attested as of the day and year first above written. MINNEAPOLIS PUBLIC HOUSING AUTHORITY IN AND FOR THE CITY OF MINNEAPOLIS B Cornell L. Moore Its Chairman And by Cora McCorvey Its Executive Director CITY OF COLUMBIA HEIGHTS, MINNESOTA By Z J Its _ And b e►_ _ ,4,111/Aello ' Its 'Y\ a,, j , _ COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY By T c And by X / 4 4"' Its 6,.xeck e-r ✓tcJ F.\M 125\0290OCS\COOP.DOC COOPERATION AGREEMENT EXECUTION PAGE • Execution Copy CONTRACT FOR PRIVATE DEVELOPMENT BY AND BETWEEN COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY AND COLUMBIA HEIGHTS TRANSITION BLOCK LLC Dated March 23, 2001 • This document drafted by: Kennedy & Graven, Chartered 470 Pillsbury Center Minneapolis, MN 55402 (612) 337 -9300 • DJG- 190143v4 CL205 -14 • CONTRACT FOR PRIVATE DEVELOPMENT THIS AGREEMENT is made as of the 23 day of March, 2001 by and between the Columbia Heights Economic Development Authority, a body corporate and politic (the "Authority ") and Columbia Heights Transition Block LLC, a Minnesota limited liability. company (the "Developer "). WITNESSETH: WHEREAS,. Crest View Corporation,. a Minnesota nonprofit corporation . ( "Crest View ") has been serving the elderly and frail citizens of the City of Columbia Heights (the "City "). since 1952, when it first opened its nursing home, Crest View Lutheran Home; and WHEREAS, as the demand for its services has grown, Crest View has developed its campus to construct and operate independent housing and assisted living projects known as Royce Place, The Boulevard, and Columbia Village, which offer residential living and service choices for seniors; and WHEREAS, the City has a history of providing support to the endeavors of Crest View, recognizing the benefit provided by Crest View to the City, including facilitating the issuance, in March 1998 of tax- exempt Multifamily and Health Care Facilities Revenue Bonds (Crest View Corporation Project); and • WHEREAS, Crest View has formed an affiliation with Opportunity Neighborhood Development Corporation for the purpose of purchasing the real estate for, and developing and operating a senior housing facility (the "Facility ") within the Authority's Central Business District Redevelopment Property (the "Project ") and Tax Increment Financing District No. 9. (the "TIF District ") within the City pursuant to Minnesota Statutes, Sections 469.174 to 469.179; and WHEREAS, the Authority believes it will be in the best interest of and will advance the health, safety and general welfare of the City and its residents to provide for the physical, social and emotional needs of its senior citizens through assistance in financing the Facility; WHEREAS, the Authority has determined that: (i) the Developer has proposed constructing and operating the Facility in conjunction with Crest View as a means of redeveloping certain blighted property within the City; and (ii) there is a need to alleviate a shortage of decent, safe and sanitary housing for persons aged 62 and older and other persons of low or moderate income in the City; and WHEREAS, the Authority has determined to address such blight and shortage in part through redevelopment of certain property within the City and the facilitation of the development of housing for low and moderate income persons as further described herein; WHEREAS, in order to achieve their objectives as described herein, the parties hereto are • prepared to pay certain development costs and undertake certain activities in order to bring about DJG- 190143v4 1 CL205 -14 • redevelopment of blighted property and development of housing for persons of low or moderate income; WHEREAS, the Authority believes that the fulfillment generally of this Agreement is in the vital and best interests of the Authority and the City, and the health, safety, morals, and welfare of the City's residents, and in accord with the public purposes and provisions of the applicable State and local laws and requirements under which the development intended hereunder will be undertaken and is being assisted; and NOW, THEREFORE, in consideration of the mutual covenants and obligations of the Authority and the Developer, each party does hereby represent, covenant and agree with the other as follows: • • DJG- 190143v4 2 CL205 -14 • ARTICLE I Definitions Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears from the context: "Agreement" means this Agreement, as the same may be from time to time modified, amended, or supplemented. "Authority" means the Columbia Heights Economic Development Authority. "Authorizing Resolution ". means the resolution of the Authority, substantially. in the form of the attached Exhibit C, adopted by the Authority's board of commissioners to authorize the issuance . of the Note. "Available Tax Increment means: (i) 89.78% of the Tax Increment that is received by the Authority in the six -month period immediately before each Payment Date; (ii) plus, in the event that at any time following the date hereof (A) either (1) the TIF Act is amended in such a manner as to reduce Tax Increment, or (2) the amount of Tax Increment is reduced as a result of changes in the law regarding the privilege of public entities to levy real property taxes; and (B) in • lieu of such reduced Tax Increment the Authority is authorized to receive and receives additional revenues in any form in substitution for the lost Tax Increment, the additional revenues the Authority is obligated to spend for the same purposes and under the same conditions that apply to Tax Increment, then the share of such additional revenues attributable to the reduced Tax Increment shall be deemed to be Tax Increment for all the purposes of this Loan Agreement. "Bond Documents" means, collectively, the documents entered into by the City and a borrower in connection with issuance of the Bonds. "Bonds" means the tax- exempt 501(c)(3) bonds issued by the City to assist in financing the Minimum Improvements. "City" means the City of Columbia Heights, Minnesota. "Closing Date" means the date of issuance of the Note. "Columbia Heights Housing Limited Partnership I" means Columbia Heights Housing Limited Partnership I, a Minnesota Limited Partnership. "Construction Plans" means 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 City, and (b) shall include at least the following: (1) site plan; (2) landscape plan; and (3) such other plans or supplements to the foregoing plans as the City may reasonably request to DJG- 190143v4 3 CL205 -14 • allow it to ascertain the nature and quality of the proposed construction work and that are available to the Developer at a reasonable cost. The Construction Plans for any building to be constructed on the Property shall additionally include 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). "Crest View" means Crest View Corporation,. a Minnesota nonprofit corporation, or its permitted successors and assigns. "Crest View Advanced Missions I, LLC ". means Crest View Advanced Missions I, LLC,. a Colorado limited liability company which is a member of Crest View ONDC I and of which Crest View Corporation is the single member. "Crest View ONDC P" means Crest View ONDC I,. a Minnesota nonprofit corporation, which has as its sole members Crest View Advanced Missions I, LLC and ONDC. "County" means the County of Anoka, Minnesota. "Developer" means Columbia Heights Transition Block LLC, or its permitted successors and assigns. "Event of Default" means an action by. the Developer listed in Article IX of this Agreement. • "Holder" means the owner of a Mortgage. "LCA Agreement" means the agreement dated March 23, 2001. between the City. and Crest View ONDC I pertaining to the use of $209,650 of Livable Communities Act funds for the Minimum Improvements. "Material" means any effect or change which significantly alters the intended use of the Property, or increases or decreases the costs of any individual item of the Minimum Improvements by more than $100,000. "Maturity Date" means the earliest of February 1, 2023, the date that the Note has been paid in full, or the date that the Note has otherwise been terminated according to its terms. "Minimum Improvements" means the construction on the Property of a 50 -unit senior rental housing facility that complies with the requirements pertaining thereto as set forth in the Bond Documents, this Agreement, and the Planned Unit Development Agreement. "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 Article VIII of this Agreement. "NEI" means NEI College of Technology, a Minnesota nonprofit corporation. • DJG- 190143v4 4 CL205 -14 • "Note" means a Tax Increment Revenue Note in substantially the form contained in the Authorizing Resolution. "ONDC" means Opportunity Neighborhood Development Corporation, a Minnesota nonprofit corporation. "Planned Unit Development Agreement" means the agreement of such name entered into by and among the City, the Developer, and NEI pertaining to granting of the appropriate permits and authorizations necessary to provide for a planned unit development project. "Property" means the real property described at Exhibit A to this. Agreement. After the construction of the Minimum Improvements, the term shall mean the Property as so improved. "Project" means the Authority's Central Business District Redevelopment Project. "Project Plan" means the Authority's project plan for the Project. • "State" means the State of Minnesota. "Tax Increment ". means that portion of the real property taxes which is paid with respect to the Property and which is remitted to the Authority by the County as tax increment pursuant to the Tax Increment Act. "Tax Increment Act ". or. "TIF. Act" means the Tax Increment Financing Act, Minnesota Statutes, Sections 469.174 to 469.179, as amended. "Tax Increment District" or "TIF District" means. the Authority's Tax Increment Financing District No. 9. "Tax Increment Plan" or "TIF Plan" means the Authority's tax increment financing plan for the TIF District, as it may be amended. "Tax Official" means any County assessor, County auditor, County or State board of equalization, the commissioner of revenue of the State, or any State or federal district court, the tax court of the State, or the State Supreme Court. "Unavoidable Delays" means delays 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 Authority in exercising its rights under this Agreement) which directly result in delays. DJG- 190143v4 5 CL205 -14 1111 ARTICLE II Representations and Warranties Section 2.1. Representations by the Authority. The Authority represents and warrants that: (a) The Authority has the power to enter into this Agreement and carry out its obligations hereunder. (b) The activities of the Authority are undertaken to redevelop blighted property within the City through the creation of housing opportunities for persons of low and moderate income. Section 2.2. Representations and Warranties by Developer. The Developer represents and warrants that: (a) The Developer is a limited liability company in good standing under the laws of Minnesota and has power to enter into this Agreement. (b) The Developer has received no notice or communication from any local, State, or federal official that the activities of the Developer or the Authority pursuant to or envisioned by this Agreement may be or will be in violation of any environmental law or regulation. The Developer is • aware of no facts the existence of which would cause the Developer to be in violation of or give any person a valid claim under any local, State, or federal environmental law, regulation, or review procedure. (c) 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. (d) The development of the Minimum Improvements would not occur but for the tax increment financing assistance being provided hereunder. • DJG- 190143v4 6 CL205 -14 ARTICLE III Public Assistance and Other Undertakings Section 3.1. Conveyance of the Development Property. As of the date of this Agreement, the Developer owns or has entered into a purchase agreement to acquire fee title to the Property, having acquired title in expectation of the assistance being provided hereunder. The Authority has no obligation to acquire the Property or any portion thereof, but has entered into a purchase agreement pursuant to which the Authority shall convey the portion of the Property subject to such purchase agreement. Section 3.2. Land Acquisition and Site Improvements. (a) Subject to the terms and conditions of the Note Agreement, and in order to make development of the Minimum Improvements economically feasible, the Authority shall reimburse the Developer for up to Seven Hundred Eighty Thousand and no /100ths Dollars ($780,000) of the costs of acquiring the Property and making public improvements designed to serve the Minimum Improvements, including site preparation, demolition and removal, soils correction and remediation, utility work, sidewalk, curb, and gutter work, earthwork, landscaping, and other costs eligible for reimbursement under the TIF Act (the "Site Improvements "). (the costs of acquiring the Property and making the Site Improvements are referred to herein collectively as the Land Acquisition and Site Improvement Costs ")... In order to make such reimbursement, the Authority shall issue and the Developer shall • purchase the Note in substantially the form set forth in the Authorizing Resolution attached as Exhibit C. The Authority and the Developer agree that the consideration from the Developer for the purchase of the Note shall consist of the Developer's payment of the Land Acquisition and Site Improvement Costs. (b) The Authority shall deliver the Note upon receipt from the Developer of a payment request certificate signed by its duly authorized representative stating: (i) that the Developer has paid Land Acquisition and Site Improvement Costs in at least the amount of $780,000; (ii) that no Event of Default has occurred and is continuing under this Agreement; and (iii) that the Developer has received a Certificate of Completion pursuant to Section 4.4 of this Agreement. The payment request certificate must be accompanied by evidence satisfactory to the Authority that the Land Acquisition and Site Improvement Costs have been incurred and paid by the Developer. (c) The Authority shall not be obligated to make any payment under the Note if there is an Event of Default on the Developer's part under this Agreement that has not been cured as of the date such payment is otherwise due. (d) The Authority makes no warranties or representations that Available Tax Increment (as defined in the Authorizing Resolution) will be sufficient to pay the Land Acquisition and Site Improvement Costs or interest thereon. The Developer agrees and understands that Available Tax Increment is subject to calculation by the County and change in State law, and that all or a portion of Land Acquisition and Site Improvement Costs may remain unpaid after the Maturity Date. • DJG- 190143v4 7 CL205 -14 • Section 3.4. Payment of Administrative Costs. The Developer agrees to pay all costs incurred by the City and the Authority in the preparation, review, and approval of this Agreement and any other agreement, resolution, financial calculation, engineering review, document, review, or process prepared or undertaken pursuant to or arising out of this Agreement (the "Administrative Costs "). The Developer acknowledges and agrees that time is of the essence with regard to. this Section 3.4 and that the obligations of the Authority hereunder are expressly contingent on the Developer's compliance with the terms of this Section 3.4. The provisions of this Section 3.4 shall survive termination of this Agreement. (b) The terms of this Section 3.4 are for the sole benefit of the Authority, and nothing in this Section 3.4 shall be construed to limit the ability of the Authority to lawfully recover Administrative Costs from Tax Increment during or after the termination of this Agreement. Section 3.5. Records. The Authority may at all reasonable times, after reasonable notice, inspect, examine and copy all books and records of the Developer relating to the Minimum Improvements. The Developer shall use its best efforts to cause the contractor or contractors, all subcontractors, and their agents and lenders to make their books and records relating to the Site Improvements available to the Authority, upon reasonable notice, for inspection, examination and audit. These records shall be kept and maintained by the Developer until four years after the Maturity Date. Section 3.6. Soil Conditions. The Developer acknowledges that the Authority makes no • representations or warranties as to the condition of the soils on the Property or its fitness for construction of the Minimum Improvements or any other purpose for which the Developer may make use of the Property. The Developer further agrees that it will indemnify, defend, and hold harmless the Authority, the City, and their governing body members, officers, and employees, from any claims or actions arising out of the presence, if any, of hazardous wastes or pollutants on the Property. • DJG- 190143v4 8 CL205 -14 • ARTICLE IV Construction of Minimum Improvements Section 4.1. Construction of Minimum Improvements. (a) The Developer will construct the Minimum Improvements on the Property in accordance with the Construction Plans. At all times prior to the Maturity Date, the Developer will operate, maintain, preserve, and keep the Minimum Improvements, with the appurtenances and every part and parcel thereof, in good repair and condition. The Authority shall have no 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 are required to be obtained or met before the Minimum Improvements can 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 Minimum Improvements, or the Developer or its business which may require changes in construction of the Minimum Improvements. Section 4.2. Construction Plans. (a) Before beginning construction of the Minimum Improvements, the Developer shall submit Construction Plans to the Authority. The Construction Plans shall provide for the construction of the Minimum Improvements and shall be in conformity with this Agreement, the TIF Plan, the Planned Unit Development 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 and the Planned Unit Development Agreement; (ii) the Construction Plans conform to the goals and objectives of the Project Plan and the TIF Plan; (iii) the Construction Plans conform to all applicable federal, state, and local laws, ordinances, rules, and regulations; (iv) the Construction Plans are adequate to provide for construction of the Minimum Improvements; (v) the Construction Plans do not provide for expenditures in excess of the funds available to the respective owner for construction of the Minimum Improvements; and (vi) no Event of Default has occurred. Approval may be based upon a review by the City's building official or other staff of the Authority of the Construction Plans... No approval by the Authority shall relieve the Developer of the obligation to comply with the terms of this Agreement, the Development Plan, the TIF Plan, the Planned Unit Development Agreement, or 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 hereunder. 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 DJG- 190143v4 9 CL205 -14 • 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 fourteen (14) 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 fourteen (14) days after written notification to the Developer of the rejection. The provisions of this Section relating to approval, rejection and resubmission of corrected Construction Plans shall continue to apply until the Construction Plans have been approved by the Authority. Said approval shall constitute a conclusive determination that the Construction Plans (and the Minimum Improvements constructed in accordance with said plans) complyy 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 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 4.2 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. Section 4.3. Commencement and Completion of Construction. The Developer shall • commence the construction of the Minimum Improvements by no later than July 1, 2001. The Developer shall complete the construction of the Minimum Improvements by no later than December 31, 2002. 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. Section 4.4. 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, in substantially the form set forth at Exhibit B to this Agreement, evidencing the 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 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 thereof. (b) If the Authority shall refuse or fail to provide any certification in accordance with the provisions of this Section 4.4, the Authority shall, within fourteen (14) 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. DJG- 190143v4 10 CL205 -14 (c) The construction of the Minimum Improvements shall be deemed to be substantially completed when the Developer has received an occupying permit from the responsible inspecting authority for all residential units, common areas, and other portions of the Minimum Improvements. Section 4.5. Additional Financing. The covenants of the Developer pursuant to this Article IV are subject to: (i) the Developer's receipt of mortgage and otherr forms of financing (including the proceeds of the Bonds) by the Developer or its permitted assigns sufficient to complete construction of the Minimum Improvements in accordance with this Agreement; and (ii) the execution by all other parties thereto and delivery to the Developer of the LCA Agreement; provided that if either of these conditions are not met, the Developer may, at any time prior to commencement of construction of the Minimum Improvements, terminate this Agreement upon written notice to the Authority and have no other obligation hereunder except as expressly set forth to the contrary herein. • 4111 DJG-190143v4 11 CL205 -14 • ARTICLE V Insurance 5.1. Insurance. (a) Upon commencement of construction and continuing until at least the Maturity Date, the Developer shall maintain, at its cost and expense, and from time to time at the request of the Authority shall furnish proof of the payment of premiums on, insurance as follows: (i) Insurance against loss and/or damage to the Minimum Improvements under a policy or policies covering such risks as are ordinarily insured against by similar businesses; (ii) Comprehensive general public liability insurance, including personal injury liability (with employee exclusion deleted), against liability for injuries to persons and/or property, in the minimum amount for each occurrence and for each year of $1,000,000, and shall be endorsed to show the Authority as additional insured; and (iii) Such other insurance, including workers' compensation insurance respecting all employees of the Developer, in such amount as is customarily carried by like organizations engaged in like activities of comparable size and liability exposure. • (b) All insurance required in this Article V shall be taken out and maintained in responsible insurance companies selected by the Developer which are authorized under the laws of the State to assume the risks covered thereby. Upon request, the Developer will deposit annually with the Authority policies evidencing all such insurance, or a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Article V of this Agreement, each policy shall contain a provision that the insurer shall not cancel nor modify it in such a way as to reduce the coverage provided below the amounts required herein without giving written notice to the Authority at least thirty (30) days before the cancellation or modification becomes effective. In lieu of separate policies, the Developer may maintain a single policy, blanket or umbrella policies, or a combination thereof, having the coverage required herein, in which event the Developer 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. (d) The Developer agrees to notify the Authority immediately in the case of damage exceeding $100,000 in amount to, or destruction of, the Minimum Improvements, or any portion thereof resulting from fire or other casualty. In such event the Developer will forthwith repair, reconstruct, and restore the Minimum Improvements to substantially the same or an improved condition or value as it existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction, and restoration, the Developer will apply the net proceeds of any insurance relating to such damage received to the payment or reimbursement of the costs thereof. The Developer shall complete the repair, reconstruction, and restoration of the Minimum Improvements, whether or not the net proceeds of insurance received by the Developer for such DJG- 190143v4 12 CL205 -14 purposes are sufficient to pay for the same. Any net proceeds remaining after completion of such repairs, construction and restoration shall be the property of the Developer. (e) The parties hereto agree that all of the provisions set forth in this Article V shall terminate upon the Maturity Date. • S DJG- 190143v4 13 CL205 -14 • ARTICLE VI Use of Tax Increment Section 6.1. Use of Tax Increments. Except for its obligations under this Agreement and the Note regarding Tax Increment, the Authority shall be free to use any Tax Increment received from the Property for any purpose for which such Tax Increment may lawfully be used, and the Authority shall have no obligation to the Developer or any other person with respect to the use of such Tax Increment. Section 6.2. Right to Collect Delinquent Taxes. The Developer acknowledges that the Authority is providing substantial aid and assistance in furtherance of the development of the Property. The. Developer understands. the. Authority's ability to assist the. Developer in the . manner specified in this Agreement is directly dependent upon the prompt and timely payment of real estate taxes. To that end, the Developer agrees for itself, its successors and assigns, in addition to the obligation pursuant to statute to pay real estate taxes, that it is also obligated by reason of this Agreement to pay before delinquency all real estate taxes assessed against the Property and the Minimum Improvements. The Developer acknowledges that this obligation creates a contractual right on behalf of the Authority to sue the Developer or its successors and assigns to collect delinquent real estate taxes and any penalty or interest thereon and to pay over the same as a tax payment to the Anoka county auditor. In any such suit, the Authority shall also • be entitled to recover its costs, expenses and reasonable attorney fees. • DJG- 190143v4 1 4 CL205 -14 ARTICLE VII Finan ci Section 7.1. Mortgage Financing. (a) Before commencement of construction of the Minimum Improvements, the Developer shall submit to the Authority evidence of one or more commitments or definitive agreements providing for mortgage financing which, together with committed equity for such construction, is sufficient for: (i) acquisition of the Property; (ii) construction of the Minimum Improvements; and (iii). performance of the. Developer's obligations under the Planned Unit Development Agreement, to the extent the Developer can practicably perform such obligations by such time. Such commitments may be submitted as short term financing, long term mortgage financing, a bridge loan with a long term take -out financing commitment, or any combination of the foregoing. Such commitment or commitments for short term or long term mortgage financing shall be subject only to such conditions as are normal and customary in the mortgage banking industry. The Authority shall cooperate with the Developer in obtaining the issuance of the Bonds. (b) If the Authority finds that the mortgage financing is sufficiently committed and adequate to meet the Developer's obligations under. Section 7.1. then the Authority. shall notify the Developer in writing of its approval. Such approval shall not be unreasonably withheld and either approval or rejection shall be given within fourteen (14) days from the date when the Authority is • provided the evidence of mortgage financing. A failure by the Authority to respond to such evidence of mortgage financing shall be deemed to constitute an approval hereunder. If the Authority rejects the evidence of mortgage financing as inadequate, it shall do so in writing specifying the basis for the rejection. In any event the Developer shall submit adequate evidence of mortgage financing within thirty (30) days after such rejection. Approval of financing pursuant to this Section 7.1(b) may be by staff of the Authority. Section 7.2. Option to Cure Default on Mortgage. In the event that there occurs a default under any Mortgage authorized pursuant to this Agreement, the Developer shall cause the Authority to receive copies of any notice of default received by the Developer from the holder of such Mortgage. Thereafter, the Authority shall have the right, but not the obligation, to cure any such default on behalf of the Developer within such cure periods as are available to the Developer under the Mortgage documents. • DJG- 190143v4 15 CL205 -14 • ARTICLE VIII Prohibitions Against Assignment and Transfer; Indemnification Section 8.1. Representation as to Development. The Developer represents and agrees that its undertakings pursuant to this Agreement are for the purpose of development of the Property. Section 8.2. Release and Indemnification Covenants. (a) Except for any willful misrepresentation or any willful or wanton misconduct or negligence of the following named parties, the Developer agrees to protect and defend the City, the Authority, and their governing body members, officers, agents, servants, and employees, now or forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit, action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising from this Agreement, or the transactions contemplated hereby or the acquisition, construction, installation, ownership, and operation of the Minimum Improvements. (b) Except for any willful, reckless, intentional, or negligent act of the following named parties, the City, the Authority, and their governing body members, officers, agents, servants, and employees shall not be liable for any damage or injury to the persons or property of the Developer or their partners, officers, agents, servants, employees, or to any other person who may be about the Property or Minimum Improvements. • (c) 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 City and the Authority, respectively, and not of any governing body member, officer, agent, servant, or employee of the City or the Authority in the individual capacity thereof (d) The provisions of this Section 8.2 shall survive termination of this Agreement. Section 8.3. Prohibition Against Developer's. Transfer of Property and. Assignment of Agreement. (a) The Developer represents and agrees that prior Maturity Date, except only by way of security for, and only for, the purpose of obtaining financing necessary to enable the Developer or any successor in interest to the Development Property, or any part thereof, to perform its obligations with respect to making the Minimum Improvements under this Agreement, and any other purpose authorized by this Agreement, the Developer 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 the Agreement or the Property or any part thereof or any interest therein (except a lease to a residential tenant of any residential unit within the Minimum Improvements), or any contract or agreement to do any of the same, without the prior written approval of the Authority. Any such transfer shall be subject to the provisions of this Agreement. (b) Prior to the Maturity Date, in the event the Developer, upon transfer or assignment of the Property or any portion thereof, seeks to be released from its obligations under • this Agreement as to the portion of the Property that is transferred or assigned, the Authority DJG- 190143v4 16 CL205 -14 • shall be entitled to require, except as otherwise provided in the Agreement, as conditions to any such release that: (i) Any proposed transferee shall have the qualifications and financial responsibility, in the sole judgment of the Authority, necessary and adequate to fulfill the obligations undertaken in this Agreement by the Developer as to the portion of the Property to be transferred. (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 expressly assumed all of the obligations of the Developer under this Agreement as to the portion of the Property to be transferred and agreed to be subject to all the conditions and restrictions to which the Developer is subject as to such portion; provided, however, that the fact that any transferee of, or any other successor in interest whatsoever to, the Property, or any part thereof, shall not, for whatever reason, have assumed such obligations or so agreed, and 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 or controls with respect to the 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 specifically provided otherwise • in this Agreement) no transfer of, or change with respect to, ownership in the Development Property or any part thereof, or any interest therein, however consummated or occurring, and whether voluntary or involuntary, shall operate, legally or practically, to deprive or limit the Authority of or with respect to any rights or remedies on controls provided in or resulting from this Agreement with respect 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 Developer, or any other party bound in any way by this Agreement or otherwise with respect to the construction of the Minimum Improvements, from any of its obligations with respect thereto. (iii) Any and all instruments and other legal documents involved in effecting the transfer of any interest in this Agreement or the Property governed by this Article VIII, shall be in a form reasonably satisfactory to the Authority. In the event the foregoing conditions are satisfied, then the Developer shall be released from its obligation under this Agreement, as to the portion of the Property that is transferred, assigned, or otherwise conveyed. (c) Notwithstanding anything to the contrary herein, the Developer shall, prior to and as a condition precedent to issuance of the Note: (i) assign or otherwise transfer its rights and obligations under this Agreement and the Authorizing Resolution to Crest View ONDC I or • Crest View Advanced Missions I, LLC; and (ii) prior to or upon such assignment or other DJG- 190143v4 17 CL205 -14 • transfer, deliver to the Authority a written, recordable instrument: (A) in a form acceptable to the Authority; (B) executed by Crest View ONDC I or Crest View Advanced Missions I, LLC, as the case may be; and (C) expressly assuming on the part of Crest View ONDC I or Crest View Advanced Missions I, LLC, as the case may be, all of the Developer's obligations hereunder and agreeing to be subject to all the conditions and restrictions of the Developer with regard to the Property. • DJG- 190143v4 18 CL205 -14 • ARTICLE IX Events of Default Section 9.1. 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, or under the Planned Unit Development Agreement or the LCA Agreement, provided that when such failure or breach does not involve the payment of money to the Authority, such failure or breach shall not constitute an "Event of Default ". if corrective action is instituted by or on behalf of such party within such thirty (30) day period and diligently pursued until the earlier of the date such default is corrected or one hundred eighty (180) days has elapsed. Nothing in this Article IX shall limit the rights of the Authority to exercise any remedy to which it is entitled under any other provision of this Agreement or the Planned Unit Development Agreement. Section 9.2. Remedies on Default. Whenever any Event of Default referred to in Section 9.1 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 and the Note; and (c) take whatever other 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. Section 9.3. 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 Article IX. Section 9.4. 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. • DJG- 190143v4 19 CL205 -14 • ARTICLE X Additional Provisions Section 10.1. Conflict of Interests; Authority and 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 City or 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 City or 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. Section 10.2. 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 shall comply with all applicable federal, State, and local equal employment and non- discrimination laws and regulations. Section 10.3. Restrictions on Use. The Developer agrees that prior to the Maturity Date, it, and its successors and assigns: (a) shall use the Property solely for the purpose of constructing and operating housing facilities pursuant to the terms of this Agreement; (b) shall not discriminate upon the basis of race, color, creed, sex, national origin, or any other classification prohibited by law in the sale, lease, or rental, or in the use or occupancy of the Property or any improvements erected or to be erected thereon, or any part thereof; and (c) shall otherwise comply with the restrictions on use set forth in this Agreement. Section 10.4. 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 Property and any such deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. Section 10.5. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 10.6. 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; and (a) in the case of the Authority, is addressed to or delivered personally to the Authority at 590 40th Avenue N.E., Columbia Heights, MN, Attn: Executive Director; and S DJG- 190143v4 20 CL205 -14 • (b) in the case of the Developer, is addressed to or delivered and personally to Terrence E. Troy, Columbia Heights Transition Block LLC, 325 Cedar Street, Suite 400, St. Paul, MN 55101; 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 10.6. Section 10.7. Counterparts; Modifications. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. This Agreement may not be modified, waived, or otherwise amended except by a writing signed by the Developer and the Authority. Section 10.8. 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 (10) 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. Section 10.9. Continuation of Certain Obligations. Nothing in this Agreement shall act to modify, amend, or otherwise relieve the Developer of its obligations and undertakings as stated in the Planned Unit Development Agreement, or any other agreement to which the Developer, and the • City or the Authority, are parties. Section 10.10. Governing Law; Venue. This Agreement shall be construed in accordance with the laws of the State of Minnesota. Any dispute arising from this Agreement shall be heard in the state or federal courts of Minnesota, and all parties waive any objection to the jurisdiction thereof, whether based on convenience or otherwise. Section 10.11. Termination of Agreement. Upon termination of this Agreement, no party hereto shall have any obligation or rights hereunder and this Agreement shall be of no further force and effect, except as such provisions herein are expressly stated to survive such termination. • DJG- 190143v4 21 CL205 -14 • IN WITNESS WHEREOF the Authority and the Developer have caused this Agreement to be duly executed in their name and on their behalf, with actual execution on the dates set forth below. COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY /, By / / /f _. Its ; ji%B0 B fir./ -���� Its _ y74ii DATE: ( a 3 , 2001 STATE OF MINNESOTA ) • ss. COUNTY OF A Koko_ ) The fore oin instrument was acknowledged before me this D3 da of /4Q,cc . , 2001 by IQ ®be is i Irc1 n hand ct,t-er R, �e ti s+ , the f-es cQ & vd- and . b: r and of the Columbia Heights Economic Development Authority, a public body corporate and politic under the laws of Minnesota, on behalf of the Authority. CL -49e.e.- , 1 :9 ' Notary Public • DJG- 190143v3 22 CL205 -14 IN WITNESS WHEREOF the Authority and the Developer have caused this Agreement III to be duly executed in their name and on their behalf, with actual execution on the dates set forth below. COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY By / � Iy� Its ,,�1 By !//, 1 Its e'te4eAke4' DATE: f ` ` 1 a.„4., Q.3 , 2001 STATE OF MINNESOTA ) ss. COUNTY OF / 4.. o k ) The foregoing instrument was acknowledged before me this r.)3v,; lay of Aue.k, 2001 b y y 2 2 b e - - t - R ue lo-.« fro, and � (ieY P , C-; b , the PY e s � cP a n+ and 'c.ec , 01 r • and — of the Columbia Heights Economic Development Authority, a public body corporate and politic under the laws of Minnesota, on behalf of the Authority. ,a&ALT2e_t_ 6.1 _ - Notary Public ,:7.; . . ^ ROLF- J. ;?!.nin i 's 15:4RY PUQL!C ....01:be't s ..:.:11:n. _ Jam..: • DJG- 190143v3 22 CL205 -14 COLUMBI EIGHTS • TRANSI •N : 0 LLC By 4 Y A Its -e'- DATE: i %✓ .. , 2040 STATE OF MINNESOTA ) ) ss. COUNTY OF ; '9i ' ^ ) The foregoing instrument was acknowledged before me this day of{_ , 200;0' by /e -6 if It t'l ' / 4 and , the `, - d of Columbia Heights Transition Block LLC, a M esota limited liability company, on behalf of the company. Notary Public ` � COLLEEN D. WARD NOTARY PUBLIC - MINNESOTA MY COMMISSION EXPIRES JANUARY 3f, • DJG- 190143v2 23 CL205 -14 • EXHIBIT A Lot 1, Block 3, Northwestern 2 Addition, Anoka County, Minnesota. • • DJG- 190143v4 A -1 CL205 -14 EXHIBIT B • • CERTIFICATE OF COMPLETION The undersigned hereby certifies that Columbia Heights Transition Block LLC (the "Developer") has fully complied with its obligations under Articles III and IV of that document titled "Contract for Private Development, ". dated I4,444# 13 , 2001 between the Columbia Heights. Economic Development Authority and the Developer ( "Contract "), with respect to construction of the Minimum Improvements in accordance with the Construction Plans, and that the Developer is released and forever discharged from its obligations to construct of the Minimum Improvements under Articles III and IV of the Contract, provided that nothing herein releases any other obligations of the Developer under the Contract. DATE: , 2001 COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY By Its B Its ,o�.r :✓ fi,aJ' ! e /t/ STATE OF MINNESOTA ) • ) ss. COUNTY OF AY• d {� - ) The foregoing instrument was acknowledged before me this 6 -41 :day of Ap,r; I , 200,. by G ,;1 � � �� r •.��1 and , the and J ;,-< - and of the Columbia Heights Economic Development Authority, a public body corporate and politic under the laws of Minnesota, on behalf of the Authority. This document drafted by: ? i i-N4:r &A#1.1 Vt4101 afki% rt: PATRICIA V. MUSCOVITi NOTARY PUBLIC - MINNESOTA Kennedy & Graven, Chartered F ,, ; , h4 y Comm. Exp. Jan. ^1, 470 Pillsbury Center W • .- Minneapolis, MN 55402 (612) 337 -9300 DJG- 189196v6 B -1 CL205 -11 • Execution Copy CONTRACT FOR PRIVATE DEVELOPMENT 1: V AND 1: ETWEEN COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY AND COLUMBIA HEIGHTS TRANSITION BLOCK LLC Dated March 23, 2001 • This document drafted by: Kennedy & Graven, Chartered 470 Pillsbury Center Minneapolis, MN 55402 (612) 337 -9300 • DIG- 189196v6 CL205 -11 CONTRACT FOR PRIVATE DEVELOPMENT THIS AGREEMENT is made as of the 23rd day of March, 2001 by and between the Columbia Heights Economic Development Authority, a body corporate and politic (the "Authority ") and Columbia Heights Transition Block LLC, a Minnesota limited liability. company (the "Developer "). WITNESSETH: WHEREAS, the Authority has determined that: (i) the Developer has proposed a project to redevelop certain blighted property within the City. of Columbia Heights, Minnesota (the "City "); (ii) there is a need to alleviate a shortage of decent, safe and sanitary housing for persons aged 62 and older and other persons of low or moderate income in the City; and (iii) it was appropriate in this connection to create the Central Business District Redevelopment Property. (the "Project ") and Tax Increment Financing District No.. 9. (the "TIF District ") within the City pursuant to. Minnesota Statutes, Sections 469.174 to 469.179; and WHEREAS, the Authority has determined to address such blight and shortage in part through redevelopment of certain property within the City and the facilitation of the development of housing for low and moderate income persons as further described herein; WHEREAS, in order to achieve their objectives as described herein, the parties hereto are • prepared to pay certain development costs and undertake certain activities in order to bring about redevelopment of blighted property and development of housing for persons of low or moderate income; WHEREAS, the Authority believes that the fulfillment generally of this Agreement is in the vital and best interests of the Authority and the City, and the health, safety, morals, and welfare of the City's residents, and in accord with the public purposes and provisions of the applicable State and local laws and requirements under which the development intended hereunder will be undertaken and is being assisted; and NOW, THEREFORE, in consideration of the mutual covenants and obligations of the Authority and the Developer, each party does hereby represent, covenant and agree with the other as follows: • DJG- 189196v6 1 CL205 -11 ARTICLE I Definitions Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears from the context: "Agreement" means this. Agreement, as the same may be from time to time modified, amended, or supplemented. "Authority" means the Columbia Heights Economic Development Authority. "Authorizing Resolution ". means the resolution of the Authority, substantially in the form of the attached Exhibit C, adopted by. the Authority's board of commissioners to authorize the issuance of the Note. "Available Tax Increment" means:. (i). 89.78% of the. Tax Increment that is received by. the Authority in the six -month period immediately before each Payment Date; (ii) plus, in the event that at any time following the date hereof (A) either (1) the TIF Act is amended in such a manner as to reduce Tax Increment, or (2) the amount of Tax Increment is reduced as a result of changes in the law regarding the privilege of public entities to levy real property taxes; and (B) in • lieu of such reduced Tax Increment the Authority is authorized to receive and receives additional revenues in any form in substitution for the lost Tax Increment, the additional revenues the Authority is obligated to spend for the same purposes and under the same conditions that apply to Tax Increment, then the share of such additional revenues attributable to the reduced Tax Increment shall be deemed to be Tax Increment for all the purposes of this Loan Agreement. "Bond. Documents" means, collectively, the documents entered into by the City and the Senior Housing Owner in connection with issuance of the Bonds. "Bonds" means the tax - exempt 501(c)(3) bonds issued by the City to assist in financing the Senior Housing Project. "CDBG Loan Agreement" means the agreement dated March 23,. 2001. between the City and Columbia Heights Housing Limited Partnership I, a Minnesota limited partnership, pertaining to the loan of $231,000 of Community Development Block Grant funds for the Minimum Improvements. "City" means the City of Columbia Heights, Minnesota. "Closing Date" means the date of issuance of the Note. "Construction Plans" means 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 DJG- 189196v6 2 CL205 -11 officials of the City, and (b) shall include at least the following: (1) site plan; (2) landscape plan; and (3) such other plans or supplements to the foregoing plans as the City may reasonably request to allow it to ascertain the nature and quality of the proposed construction work and that are available to the Developer at a reasonable cost. The Construction Plans for any building to be constructed on the Property shall additionally include 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). "Crest View ONDC P" means Crest View ONDC I, a Minnesota nonprofit corporation. "County" means the County of Anoka, Minnesota. "Developer" means Columbia Heights Transition Block LLC, or its permitted successors and assigns. "Event of Default" means an action by the Developer listed in Article IX of this Agreement. "Holder". means the owner of a Mortgage. "HOME. Agreement ". means the agreement dated July. 1,. 1999. between the County and Columbia Heights Housing Limited Partnership I pertaining to the use of $234,894 of HOME funds for the Minimum Improvements. • "LCA Grant Agreement ". means the agreement dated as of March 23,. 2001. between the City. and the Developer pertaining to the use of $235,350 of Livable Communities Act funds for the Minimum Improvements. "LCA Loan Agreement ". means the agreement dated March 23, 2001. between the City and Columbia Heights Housing Limited Partnership I, a Minnesota limited partnership, pertaining to the use of $100,000 of Livable Communities Act funds for the Minimum Improvements. "Material" means any effect or change which significantly. alters the intended use of the Property, or increases or decreases the costs of any individual item of the Minimum Improvements by more than $100,000. "Maturity Date" means the earliest of February 1, 2020, the date that the Note has been paid in full, or the date that the Note has otherwise been terminated according to its terms. "MHOP Agreement" means the agreement dated March 27, 2001 between the Minneapolis Public Housing Authority and Columbia Heights Housing Limited Partnership I pertaining to the use of $315,900 of Minneapolis Housing Opportunity Program funds for the Minimum Improvements. "Minimum Improvements" means the construction on the Property of a 22 -unit affordable rental complex that: (i) meets all the requirements for a low- income tax credit under Section 42 of • • the Internal Revenue Code of 1986, as amended through the date of this Agreement; and (ii) DJG- 189196v6 3 CL205 -11 s .. • otherwise complies with the requirements pertaining thereto as set forth in this Agreement and the Planned Unit Development Agreement. "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 Article VIII of this Agreement. "NEI" means NEI College of Technology, a Minnesota nonprofit corporation, which is the seller of the Property and the owner of real property adjacent to the Property. "Note" means a Tax Increment Revenue Note in substantially. the form contained in the Authorizing Resolution. "ONDC" means Opportunity Neighborhood Development Corporation, a Minnesota nonprofit corporation. "Parcel 2 ". means the real property on which the Senior Housing Project is to be constructed and which is described at Exhibit D to this Agreement. "Payment Date ". means. each February 1. and August 1. commencing August 1, 2003. and continuing through the Maturity Date. 411, "Planned Unit Development Agreement ". means the agreement of such name. entered into by and among the City, the Developer, and NEI pertaining to granting of the appropriate permits and authorizations necessary to provide for a planned unit development project. "Property" means the real property described at Exhibit A to this Agreement.. After the construction of the Minimum Improvements, the term shall mean the Property as so improved. "Project" means the Authority's Central Business District Redevelopment Project. "Project Plan" means the Authority's project plan for the Project. "Senior Housing Contract for Private Development" means the contract for private development between the Authority and the Senior Housing Owner providing for construction of the Senior Housing Project. "Senior Housing Owner" means Crest View ONDC I, or,. on an interim basis, pending receipt of a determination letter from the Internal Revenue Service regarding the tax - exempt status of Crest View ONDC I, Crest View Advanced Missions I, LLC. "Senior Housing Project" means the construction by the Senior Housing Owner on Parcel 2 of a 50 -unit senior rental housing facility that complies with the requirements pertaining thereto as set forth in the Bond Documents, the Senior Housing Contract for Private Development, and the Planned Unit Development Agreement. • DJG- 189196v6 4 CL205 -11 • "State" means the State of Minnesota. "Tax Increment" means that portion of the real property taxes which is paid with respect to the Property and which is remitted by the County to the Authority as tax increment pursuant to the Tax Increment Act. "Tax Increment Act" or. "TIF Act" means the Tax Increment Financing Act, Minnesota Statutes, Sections 469.174 to 469.179, as amended. "Tax Increment District" or. "TIF District" means the Authority's Tax Increment Financing District No. 9. "Tax Increment Plan". or "TIE Plan" means the Authority's tax increment financing plan for the TIF District, as it may be amended. "Tax Official ". means any County assessor, County. auditor,. County. or State board of equalization, the commissioner of revenue of the State, or any State or federal district court, the tax court of the State, or the State Supreme Court. "Unavoidable Delays ". means delays 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 Authority in exercising its rights under this Agreement) which directly result in delays. • DJG- 189196v6 5 CL205 -11 • ARTICLE H Representations and Warranties Section 2.1. Representations by the Authority. The Authority represents and warrants that: (a) The Authority has the power to enter into this Agreement and carry out its obligations hereunder. (b) The activities of the Authority are undertaken to redevelop blighted property within the City through the creation of housing opportunities for persons of low and moderate income. Section 2.2. Representations and Warranties by Developer. The Developer represents and warrants that: (a) The Developer is a limited liability company in good standing under the laws of Minnesota and has power to enter into this Agreement. (b) The Developer has received no notice or communication from any local, State, or federal official that the activities of the Developer or the Authority pursuant to or envisioned by this Agreement may be or will be in violation of any environmental law or regulation. The Developer is • aware of no facts the existence of which would cause the Developer to be in violation of or give any person a valid claim under any local, State, or federal environmental law, regulation, or review procedure. (c) 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. (d) The development of the Minimum Improvements would not occur but for the tax increment financing assistance being provided hereunder. • DJG- 189196v6 6 CL205 -11 • ARTICLE III Public Assistance and Other Undertakings Section 3.1. Conveyance of the Development Property. As of the date of this Agreement, the Developer owns or has entered into a purchase agreement to acquire fee title to the Property, having acquired title in expectation of the assistance being provided hereunder. The Authority has no obligation to acquire the Property or any portion thereof. Section 3.2. Land Acquisition and Site Improvements. (a) Subject to the terms and conditions of the Note Agreement, and in order to make development of the Minimum Improvements economically feasible, the Authority shall reimburse the Developer for up to One Hundred Seventy -Five Thousand One Hundred and no /100ths Dollars ($175,100) of the costs of acquiring the Property and making public improvements designed to serve the Minimum Improvements, including site preparation, demolition and removal, soils correction and remediation, utility work, sidewalk, curb, and gutter work, earthwork, landscaping, and other costs eligible for reimbursement under. the TIF Act (the "Site Improvements "). (the costs of acquiring the. Property . and making the Site Improvements are referred to herein collectively as the Land Acquisition and Site Improvement Costs ")... In order to make such reimbursement, the Authority shall issue and the • Developer shall purchase the Note in substantially the form set forth in the Authorizing Resolution attached as Exhibit C. The Authority and the Developer agree that the consideration from the • Developer for the purchase of the Note shall consist of the Developer's payment of the Land Acquisition and Site Improvement Costs. (b) The Authority shall deliver the Note upon receipt from the Developer of a payment request certificate signed by its duly authorized representative stating: (i) that the Developer has paid Land Acquisition and Site Improvement Costs in at least the amount of $175,100; (ii) that no Event of Default has occurred and is continuing under this Agreement; and (iii) that the Developer has received a Certificate of Completion pursuant to Section 4.4 of this Agreement. The payment request certificate must be accompanied by evidence satisfactory to the Authority that the Land Acquisition and Site Improvement Costs have been incurred and paid by the Developer. (c) The Authority shall not be obligated to make any payment under the Note if there is an Event of Default on the Developer's part under this Agreement that has not been cured as of the date such payment is otherwise due. (d) The Authority makes no warranties or representations that Available Tax Increment (as defined in the Authorizing Resolution) will be sufficient to pay the Land Acquisition and Site Improvement Costs or interest thereon. The Developer agrees and understands that Available Tax Increment is subject to calculation by the County and change in State law, and that all or a portion of Land Acquisition and Site Improvement Costs may remain unpaid after the Maturity Date. Section 3.4. Payment of Administrative Costs. The Developer agrees to pay all costs 1111 incurred by the City and the Authority in the preparation, review, and approval of this Agreement DJG- 189196v6 7 CL205 -11 and any other agreement, resolution, financial calculation, engineering review, document, review, or process prepared or undertaken pursuant to or arising out of this Agreement (the "Administrative Costs ")... Prior to the date of this Agreement,. the Developer paid to. the Authority the amount of $10,000, such amount to be applied to Administrative Costs. The Developer shall further from time to time pay to the City or the Authority, within ten (10) days of request for such payment by the City or the Authority, any amount by which the Administrative Costs exceed $10,000 and for which the City or the Authority have not been previously reimbursed. The Developer acknowledges and agrees that time is of the essence with regard to this Section 3.4 and that the obligations of the Authority hereunder are expressly contingent on the Developer's compliance with the terms of this Section 3.4. The provisions of this Section 3.4 shall survive termination of this Agreement. (b) The terms of this Section 3.4 are for the sole benefit of the Authority, and nothing in this Section 3.4 shall be construed to limit the ability of the Authority to lawfully recover Administrative Costs from Tax Increment during or after the termination of this Agreement. Section 3.5. Records. The Authority may at all reasonable times, after reasonable notice, inspect, examine and copy all books and records of the Developer relating to the Minimum Improvements. The Developer shall use its best efforts to cause the contractor or contractors, all subcontractors, and their agents and lenders to make their books and records relating to the Site Improvements available to the Authority, upon reasonable notice, for inspection, examination and audit. These records shall be kept and maintained by the Developer until four years after the Maturity Date. • Section 3.6. Soil Conditions. The Developer acknowledges that the Authority makes no representations or warranties as to the condition of the soils on the Property or its fitness for construction of the Minimum Improvements or any other purpose for which the Developer may make use of the Property. The Developer further agrees that it will indemnify, defend, and hold harmless the Authority, the City, and their governing body members, officers, and employees, from any claims or actions arising out of the presence, if any, of hazardous wastes or pollutants on the Property. • DJG- 189196v6 8 CL205 -11 ARTICLE IV Construction of Minimum Improvements Section 4.1. Construction of Minimum Improvements. (a) The Developer will construct the Minimum Improvements on the Property in accordance with the Construction Plans. At all times prior to the Maturity Date, the Developer will operate, maintain, preserve, and keep the Minimum Improvements, with the appurtenances and every part and parcel thereof, in good repair and condition. The Authority shall have no 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 are required to be obtained or met before the Minimum Improvements can 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 ID claims affecting any part of the Minimum Improvements and all written complaints and charges made by any governmental authority materially affecting the Minimum Improvements, or the Developer or its business which may require changes in construction of the Minimum Improvements. Section 4.2. Construction Plans. (a) Before beginning construction of the Minimum Improvements, the Developer shall submit Construction Plans to the Authority. The Construction Plans shall provide for the construction of the Minimum Improvements and shall be in conformity with this Agreement, the TIF Plan, the Planned Unit Development 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 and the Planned Unit Development Agreement; (ii) the Construction Plans conform to the goals and objectives of the Project Plan and the TIF Plan; (iii) the Construction Plans conform to all applicable federal, state, and local laws, ordinances, rules, and regulations; (iv) the Construction Plans are adequate to provide for construction of the Minimum Improvements; (v) the Construction Plans do not provide for expenditures in excess of the funds available to the respective owner for construction of the Minimum Improvements; and (vi) no Event of Default has occurred. Approval may be based upon a review by the City's building official or other staff of the Authorityy of the Construction Plans. No approval by the Authority shall relieve the Developer of the obligation to comply with the terms of this Agreement, the Development Plan, the TIF Plan, the Planned Unit Development Agreement, or 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 hereunder. 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 DJG- 189196v6 9 CL205 -11 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 fourteen (14) 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 fourteen (14) days after written notification to the Developer of the rejection. The provisions of this Section relating to approval, rejection and resubmission of corrected Construction Plans shall continue to apply until the Construction Plans have been approved by the Authority. 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 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 4.2 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. Section 4.3. Commencement and Completion of Construction. The Developer shall • commence the construction of the Minimum Improvements by no later than July 1, 2001. The Developer shall complete the construction of the Minimum Improvements by no later than December 31, 2002. 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. Section 4.4. 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, in substantially the form set forth at Exhibit B to this Agreement, evidencing the 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 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 thereof. (b) If the Authority shall refuse or fail to provide any certification in accordance with the provisions of this Section 4.4, the Authority shall, within fourteen (14) 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. DJG- 189196v6 10 CL205 -11 ® (c) The construction of the Minimum Improvements shall be deemed to be substantially completed when the Developer has received an occupying permit from the responsible inspecting authority for all residential units, common areas, and other portions of the Minimum Improvements. Section 4.5. Additional Financing. The covenants of the Developer pursuant to this Article IV are subject to: (i). the Developer's receipt of mortgage and other forms of financing sufficient to complete construction of the Minimum Improvements in accordance with this Agreement; and (ii) the execution by all other parties thereto and delivery to the Developer of the LCA Grant Agreement, the LCA Loan Agreement, the CDBG Loan Agreement, the MHOP Agreement, and the HOME Agreement; provided that if either of these conditions are not met, the Developer may, at any time prior to commencement of construction of the Minimum Improvements, terminate this Agreement upon written notice to the Authority and have no other obligation hereunder except as expressly set forth to the contrary herein. S DJG- 189196v6 11 CL205 -11 • ARTICLE V Insurance 5.1. Insurance. (a) Upon commencement of construction and continuing until at least the Maturity Date, the Developer shall maintain, at its cost and expense, and from time to time at the request of the Authority shall furnish proof of the payment of premiums on, insurance as follows: (i) Insurance against loss and/or damage to the Minimum Improvements under a policy or policies covering such risks as are ordinarily insured against by similar businesses; (ii) Comprehensive general public liability insurance, including personal injury liability (with employee exclusion deleted), against liability for injuries to persons and/or property, in the minimum amount for each occurrence and for each year of $1,000,000, and shall be endorsed to show the Authority as additional insured; and (iii) Such other insurance, including workers'. compensation insurance respecting all employees of the Developer, in such amount as is customarily carried by like organizations engaged in like activities of comparable size and liability exposure. • (b) All insurance required in this Article V shall be taken out and maintained in responsible insurance companies selected by the Developer which are authorized under the laws of the State to assume the risks covered thereby. Upon request, the Developer will deposit annually with the Authority policies evidencing all such insurance, or a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Article V of this Agreement, each policy shall contain a provision that the insurer shall not cancel nor modify it in such a way as to reduce the coverage provided below the amounts required herein without giving written notice to the Authority at least thirty (30) days before the cancellation or modification becomes effective. In lieu of separate policies, the Developer may maintain a single policy, blanket or umbrella policies, or a combination thereof, having the coverage required herein, in which event the Developer 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. (d) The Developer agrees to notify the Authority immediately in the case of damage exceeding $100,000 in amount to, or destruction of, the Minimum Improvements, or any portion thereof resulting from fire or other casualty. In such event the Developer will forthwith repair, reconstruct, and restore the Minimum Improvements to substantially the same or an improved condition or value as it existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction, and restoration, the Developer will apply the net proceeds of any insurance relating to such damage received to the payment or reimbursement of the costs thereof. The Developer shall complete the repair, reconstruction, and restoration of the Minimum • Improvements, whether or not the net proceeds of insurance received by the Developer for such DJG- 189196v6 12 CL205 -11 purposes are sufficient to pay for the same. Any net proceeds remaining after completion of such repairs, construction and restoration shall be the property of the Developer. (e) The parties hereto agree that all of the provisions set forth in this Article V shall terminate upon the Maturity Date. • • DJG- 189196v6 13 CL205 -11 • ARTICLE VI Use of Tax Increment Section 6.1. Use of Tax Increments. Except for its obligations under this Agreement and the Note regarding Tax Increment, the Authority shall be free to use any Tax Increment received from the Property for any purpose for which such Tax Increment may lawfully be used, and the Authority shall have no obligation to the Developer or any other person with respect to the use of such Tax Increment. Section 6.2. Right to Collect Delinquent Taxes. The Developer acknowledges that the Authority is providing substantial aid and assistance in furtherance of the development of the Property. The Developer understands the. Authority' s ability to assist the Developerr in the . manner specified in this Agreement is directly dependent upon the prompt and timely payment of real estate taxes. To that end, the Developer agrees for itself, its successors and assigns, in addition to the obligation pursuant to statute to pay real estate taxes, that it is also obligated by reason of this Agreement to pay before delinquency all real estate taxes assessed against the Property and the Minimum Improvements. The Developer acknowledges that this obligation creates a contractual right on behalf of the Authority to sue the Developer or its successors and assigns to collect delinquent real estate taxes and any penalty or interest thereon and to pay over the same as a tax payment to the Anoka county auditor. In any such suit, the Authority shall also • be entitled to recover its costs, expenses and reasonable attorney fees. • DJG- 189196v6 14 CL205 -11 ARTICLE VII Financing Section 7.1. Mortgage Financing. (a) Before commencement of construction of the Minimum Improvements, the Developer shall submit to the Authority evidence of one or more commitments or definitive agreements providing for mortgage financing which, together with committed equity for such construction, is sufficient for: (i) acquisition of the Property; (ii) construction of the Minimum Improvements; and (iii). performance of the. Developer's obligations under the Planned Unit Development Agreement, to the extent the Developer can practicably perform such obligations by such time. Such commitments may be submitted as short term financing, long term mortgage financing, a bridge loan with a long term take -out financing commitment, or any combination of the foregoing. Such commitment or commitments for short term or long term mortgage financing shall be subject only to such conditions as are normal and customary in the mortgage banking industry. (b) If the Authority finds that the mortgage financing is sufficiently committed and adequate to meet the Developer's obligations under Section 7.1. then the Authority shall notify the Developer in writing of its approval. Such approval shall not be unreasonably withheld and either approval or rejection shall be given within fourteen (14) days from the date when the Authority is provided the evidence of mortgage financing. A failure by the Authority to respond to such • evidence of mortgage financing shall be deemed to constitute an approval hereunder. If the Authority rejects the evidence of mortgage financing as inadequate, it shall do so in writing specifying the basis for the rejection. In any event the Developer shall submit adequate evidence of mortgage financing within thirty (30) days after such rejection. Approval of financing pursuant to this Section 7.1(b) may be by staff of the Authority. Section 7.2. Option to Cure Default on Mortgage. In the event that there occurs a default under any Mortgage authorized pursuant to this Agreement, the Developer shall cause the Authority to receive copies of any notice of default received by the Developer from the holder of such Mortgage. Thereafter, the Authority shall have the right, but not the obligation, to cure any such default on behalf of the Developer within such cure periods as are available to the Developer under the Mortgage documents. • DJG- 189196v6 15 CL205 -11 • ARTICLE VIII Prohibitions Against Assignment and Transfer; Indemnification Section 8.1. Representation as to Development. The Developer represents and agrees that its undertakings pursuant to this Agreement are for the purpose of development of the Property. Section 8.2. Release and Indemnification Covenants. (a) Except for any willful misrepresentation or any willful or wanton misconduct or negligence of the following named parties, the Developer agrees to protect and defend the City, the Authority, and their governing body members, officers, agents, servants, and employees, now or forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit, action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising from this Agreement, or the transactions contemplated hereby or the acquisition, construction, installation, ownership, and operation of the Minimum Improvements. (b) Except for any willful, reckless, intentional, or negligent act of the following named parties, the City, the Authority, and their governing body members, officers, agents, servants, and employees shall not be liable for any damage or injury to the persons or property of the Developer or their partners, officers, agents, servants, employees, or to any other person who may be about the Property or Minimum Improvements. • (c) 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 City and the Authority, respectively, and not of any governing body member, officer, agent, servant, or employee of the City or the Authority in the individual capacity thereof. (d) The provisions of this Section 8.2 shall survive termination of this Agreement. Section 8.3. Prohibition Against Developer's Transfer. of Property and Assignment of Agreement. (a) The Developer represents and agrees that prior Maturity Date, except only by way of security for, and only for, the purpose of obtaining financing necessary to enable the Developer or any successor in interest to the Development Property, or any part thereof, to perform its obligations with respect to making the Minimum Improvements under this Agreement, and any other purpose authorized by this Agreement, the Developer 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 the Agreement or the Property or any part thereof or any interest therein (except a lease to a residential tenant of any residential unit within the Minimum Improvements), or any contract or agreement to do any of the same, without the prior written approval of the Authority. Any such transfer shall be subject to the provisions of this Agreement. (b) Prior to the Maturity Date, in the event the Developer, upon transfer or assignment of the Property or any portion thereof, seeks to be released from its obligations under • this Agreement as to the portion of the Property that is transferred or assigned, the Authority DJG- 189196v6 16 CL205 -11 • shall be entitled to require, except as otherwise provided in the Agreement, as conditions to any such release that: (i) Any proposed transferee shall have the qualifications and financial responsibility, in the sole judgment of the Authority, necessary and adequate to fulfill the obligations undertaken in this Agreement by the Developer as to the portion of the Property to be transferred. (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 expressly assumed all of the obligations of the Developer under this Agreement as to the portion of the Property to be transferred and agreed to be subject to all the conditions and restrictions to which the Developer is subject as to such portion; provided, however, that the fact that any transferee of, or any other successor in interest whatsoever to, the Property, or any part thereof, shall not, for whatever reason, have assumed such obligations or so agreed, and 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 or controls with respect to the 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 specifically provided otherwise • in this Agreement) no transfer of, or change with respect to, ownership in the Development Property or any part thereof, or any interest therein, however consummated or occurring, and whether voluntary or involuntary, shall operate, legally or practically, to deprive or limit the Authority of or with respect to any rights or remedies on controls provided in or resulting from this Agreement with respect 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 Developer, or any other party bound in any way by this Agreement or otherwise with respect to the construction of the Minimum Improvements, from any of its obligations with respect thereto. (iii) Any and all instruments and other legal documents involved in effecting the transfer of any interest in this Agreement or the Property governed by this Article VIII, shall be in a form reasonably satisfactory to the Authority. In the event the foregoing conditions are satisfied, then the Developer shall be released from its obligation under this Agreement, as to the portion of the Property that is transferred, assigned, or otherwise conveyed. (c) Notwithstanding anything to the contrary herein, the Developer may, at any time prior to issuance of the Note, assign or otherwise transfer its rights and obligations under this Agreement and the Authorizing Resolution to Columbia Heights Housing Limited Partnership I, • a Minnesota limited partnership, provided that prior to or upon such assignment or transfer, DJG- 189196v6 17 CL205 -11 Columbia Heights Housing Limited Partnership I executes and delivers to the Authority a • written, recordable instrument: (i) in a form acceptable to the Authority; and (ii) expressly assuming all of the Developer's obligations hereunder and agreeing to be subject to all the . conditions and restrictions of the Developer with regard to the Property. • • DJG- 189196v6 18 CL205 -11 • ARTICLE IX Events of Default Section 9.1. 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, or under the Planned Unit Development Agreement, the HOME Agreement, the CDBG Loan Agreement, the LCA Grant Agreement, the LCA Loan Agreement, or the MHOP Agreement, provided that when such failure or breach does not involve the payment of money to the. Authority, such failure. or breach shall not constitute an "Event of Default" if corrective action is. instituted by. or on behalf of such party. within such thirty (30) day period and diligently pursued until the earlier of the date such default is corrected or one hundred eighty (180) days has elapsed. In addition to and without limitation of the foregoing, it shall be deemed an Event of Default on the. part of the. Developer. if:. (i) a "Certificate of Completion" is not issued for the Senior Housing Project pursuant to the Senior Housing Contract for Private Development, provided that it shall not be an Event of Default under this clause if either Crest View ONDC I or Crest View Advanced Missions I, LLC agree to but the City determines not to enter into agreements providing for the issuance of the Bonds under terms and conditions at least as favorable to the City as the terms and conditions contained in the agreements relating to the • City's issuance of its $10,130,000 City. of Columbia Heights, Minnesota Multifamily. and Health Care Facilities Revenue Bonds (Crest View Corporation Project), Series 1998 Bonds; or (ii) the Developer does not assign or otherwise transfer its rights and obligations under the Senior Housing Contract for Private Development in accordance with Section 8.3(c) of the Senior Housing Contract for Private Development. Nothing in this Article IX shall limit the rights of the Authority to exercise any remedy to which it is entitled under any other provision of this Agreement or the Planned Unit Development Agreement. Section 9.2. Remedies on Default. Whenever any Event of Default referred to in Section 9.1 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 and the Note; and (c) take whatever other 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. Section 9.3. 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 DJG- 189196v6 19 CL205 -11 4110 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 Article IX. Section 9.4. 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. • • DJG- 189196v6 20 CL205 -11 • ARTICLE X Additional Provisions Section 10.1. Conflict of Interests; Authority and 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 City or 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 City or 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. Section 10.2. 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 shall comply with all applicable federal, State, and local equal employment and non- discrimination laws and regulations. Section 10.3. Restrictions on Use. The Developer agrees that prior to the Maturity Date, it, • and its successors and assigns: (a) shall use the Property solely for the purpose of constructing and operating housing facilities pursuant to the terms of this Agreement; (b) shall not discriminate upon the basis of race, color, creed, sex, national origin, or any other classification prohibited by law in the sale, lease, or rental, or in the use or occupancy of the Property or any improvements erected or to be erected thereon, or any part thereof, and (c) shall otherwise comply with the restrictions on use set forth in this Agreement. Section 10.4. 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 Property and any such deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. Section 10.5. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 10.6. 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; and (a) in the case of the Authority, is addressed to or delivered personally to the Authority at 590 40th Avenue N.E., Columbia Heights, MN, Attn: Executive Director; and • DJG- 189196v6 21 CL205 -11 • (b) in the case of the Developer, is addressed to or delivered and personally to Columbia Heights Transition Block LLC, 325 Cedar Street, Suite 400, St. Paul, MN 55101; 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 10.6. Section 10.7. Counterparts; Modifications. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. This Agreement may not be modified, waived, or otherwise amended except by a writing signed by the Developer and the Authority. Section 10.8. 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 (10) 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. Section 10.9. Continuation of Certain Obligations. Nothing in this Agreement shall act to modify, amend, or otherwise relieve the Developer of its obligations and undertakings as stated in the Planned Unit Development Agreement, or any other agreement to which the Developer, and the City or the Authority, are parties. • Section 10.10. Governing Law; Venue. This Agreement shall be construed in accordance with the laws of the State of Minnesota. Any dispute arising from this Agreement shall be heard in the state or federal courts of Minnesota, and all parties waive any objection to the jurisdiction thereof, whether based on convenience or otherwise. Section 10.11. Termination of Agreement. Upon termination of this Agreement, no party hereto shall have any obligation or rights hereunder and this Agreement shall be of no further force and effect, except as such provisions herein are expressly stated to survive such termination. • DJG- 189196v6 22 CL205 -11 • IN WITNESS WHEREOF the Authority and the Developer have caused this Agreement to be duly executed in their name and on their behalf, with actual execution on the dates set forth below. COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY By . G �I-fe% Its ," By 1.7-107:4 Its el l A . c.'? y /& 7 V DATE: ,D..3 , 2001 • STATE OF MINNESOTA ) / ss. COUNTY OF A hO �a ) The foregoing instrument was acknowledg bef re me this &hay of l'l k, 2001 by pobe,,* Qa 14 rrstei and U.a.(.+er I. ekS , the 1 cPea and .x ec , b IN-. and - of the Columbia Heights Economic Development Authority, a public body corporate and politic under the laws of Minnesota, on behalf of the Authority. I A S . /. :.... _6" ,k ' i i.t VWV 'R'A5 ,%' Sv eU Notary Public ,; 4 r ;".a()E_' J. BLOWERS k 4.1.71R.' . : 1 2 tRY PUMA -.j. :I\1:SOIA • DJG- 189196v5 23 CL205 -11 COLU I: HEIG TS ® TRAN O ' BL o .'J LLC By 1 / /Il'� �i.i/ ' Its DATE: ' 7.0.11.../ , 200, l STATE OF MINNESOTA ) ss. COUNTY OF a ?) 1) The foreg2iLp i� strument was acknowledged before me this, day o �i-J , 202 by Ce7. 1,. l , /, e, and , the ,(� 4 dir - LAnd of Columbia Heights Transition Block LLC, a innesota limited liability company, on behalf of the company. COLLEEN D wMo Mary u • l is ' MINNESOTA Ij / MY COMMISSION EXPIRES ' JANUARY 31, 90 S DJG- 189196v4 24 CL205 -11 EXHIBIT A Lot 1, Block 2 and Outlot B, Northwestern 2 11d Addition, Anoka County, Minnesota 411 DJG- 189196v6 A -1 CL205 -11 EXHIBIT B CERTIFICATE OF COMPLETION The undersigned hereby certifies that Columbia Heights Transition Block LLC (the "Developer") has fully complied with its obligations under Articles III and IV of that document titled "Contract for Private Development, ". dated roahc 2 -3, 2001 between the. Columbia Heights Economic Development Authority and the Developer ( "Contract "), with respect to construction of the Minimum Improvements in accordance with the Construction Plans, and that the Developer is released and forever discharged from its obligations to construct of the Minimum Improvements under Articles III and IV of the Contract, provided that nothing herein releases any other obligations of the Developer under the Contract. DATE: , 2001 COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY -�j Its tki..6 By , Its e.. "4- ✓ < r v STATE OF MINNESOTA ) ) ss. COUNTY OF kv, 6 K& ) The foregoing instrument was acknowledged before me this 0,5 of . l , 2001- by Y 1,.%.,�. – � ' ,,� and L3o1Z . F A C , the 1 r • , d - — and f j- and of the Columbia Heights Economic Development Authority, a public body corporate and politic under the laws of Minnesota, on behalf of the Authority. MUSCOVITZ This document drafted by: E:�1C MINNESOTA v Exp. Jan. 31, 20051 Kennedy & Graven, Chartered 470 Pillsbury Center Minneapolis, MN 55402 (612) 337 -9300 DJG- 18919696 B -1 CL205 -11 • Execution copy PURCHASE AND RE ' EVELOPMENT AGREEMENT BY AND BETWEEN COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY • AND COLUMBIA HEIGHTS TRANSITION BLOCK LLC This document was drafted by: KENNEDY & GRAVEN, Chartered 470 Pillsbury Center Minneapolis, MN 55402 (612) 337 -9300 DJG- 189430v1 CL205 -11 • PURCHASE AND REDEVELOPMENT AGREEMENT THIS AGREEMENT is made as of the 23 day of March, 2001 by and between the COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY, a public body politic and corporate under the laws of the State of Minnesota (the "Authority "), and Columbia Heights Transition Block LLC (the "Developer "). WITNESSETH: WHEREAS, Authority is the fee owner of a parcel of property (the "Land ") located in the City of Columbia Heights, County of Anoka, State of Minnesota, and legally described as: Lot 2, Block 38, Northwestern Addition, Anoka County, Minnesota. The Land and all rights, privileges, easements, tenements, hereditaments, and appurtenances belonging thereto, shall hereinafter be referred to as the "Property." WHEREAS, Authority deems it to be in the public interest to facilitate and encourage redevelopment of the Property by private activity; and • WHEREAS, Developer has proposed a development ( "Development ") on the Property which Authority believes will promote and carry out the objectives of Authority, will be in the vital best interests of 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 described herein have been undertaken and are being assisted; and WHEREAS, Developer proposes to use the Property to facilitate the construction of a project including affordable rental housing and senior assisted living (the "Project "), all as described in the Preliminary Development Agreement by and among the City of Columbia Heights, Authority, and Columbia Heights Transition Block LLC dated on or about October 19, 2000 (the "Preliminary Agreement ") and as to be more fully described in the two contracts for private development between Authority and Developer or its one or more assigns and relating to the Minimum Improvements (the "Contracts "). WHEREAS, Developer is willing to purchase the Property and to develop the Property for and in accordance with the Preliminary Agreement and the Contracts; and WHEREAS, Authority desires to convey the Property to Developer and Developer is desirous of purchasing the same. • DJG- 189430v1 1 CL205 -11 • 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: AGREEMENT 1.0. Definitions. In this Agreement, unless a different meaning clearly appears from the context: "Agreement" means this Agreement, as the same may be from time to time modified, amended, or supplemented. "Authority" means the Columbia Heights Economic Development Authority. "City" means the City of Columbia Heights, Minnesota. "County" means the County of Anoka, Minnesota. "Date of Closing" means the effective date of the Contracts or, if the Contracts have different effective dates, the later of such effective dates. • "Developer" means Columbia Heights Transition Block LLC, or its permitted successors and assigns. "Event of Default" means an action by Developer listed in Section 17 of this Agreement. "Minimum Improvements" shall have the meaning given in the Preliminary Agreement. "Preliminary Agreement" shall mean the Preliminary Development Agreement by and among the City of Columbia Heights, Authority, and Columbia Heights Transition Block LLC dated October 19, 2000. "Project Plan" means the Authority's project plan for the Authority's Central Business District Redevelopment. "Property" means the real property legally described in the first "Whereas" clause of this Agreement. "State" means the State of Minnesota. 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. DJG- 189430v1 2 CL205 -11 3.0. Purchase Price. The purchase price ( "Purchase Price ") of the Property shall be $1.00 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 of the date of this Agreement, Developer may, at its discretion and expense, obtain: (a) An Abstract of Title for the Property (or a Registered Property Abstract if title to the Property is registered) certified to date to include proper searches covering bankruptcies, tax liens, and state and federal court judgments and liens; or (b) An ALTA Form 1970 commitment for an Owner's title insurance policy (the "Commitment ") pursuant to which the title insurer agrees to issue to • 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. 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 described in Section 5.1 above to render objections to title in writing to Authority and Authority shall have until the Date of Closing to remove such objections. If Authority shall fail to have such objections removed within said time, 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. Any objections not provided to Authority in accordance with this Section 5.2 shall be deemed waived. 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, 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 DJG- 189430v1 3 CL205 -11 • 111 Authority in writing. At its option, Developer may proceed to closing and in such event, 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 Authority and Developer. Authority and Developer make the following representations as the basis for their respective undertakings herein contained: 7.1. Representations of Authority. Authority represents and warrants that: (a) Authority has the power to enter into this Agreement and carry out its obligations hereunder. (b) 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) Authority discloses that there is not an individual sewage treatment system serving the Property. 7.2. Representations and Warranties by Developer. Developer represents and • warrants that: (a) Developer has received no notice or communication from any local, State, or federal official that the activities of Developer or 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 Authority is aware). 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 Developer is now a party or by which it is bound, or constitutes a default under any of the foregoing. (c) Developer will construct, operate and maintain the Minimum Improvements in accordance with the terms of the Preliminary Agreement and the Contracts. 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 DJG- 189430v1 4 CL205 -11 • 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) Within ten days following the date of this Agreement, and to the extent such documents are available to Authority, Authority shall 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 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, attorneys fees, and remedial costs. This provision shall survive termination of this Agreement. 9.0. Conditions to Closing. The closing of the transaction contemplated by this Agreement and the obligation of Authority to sell the Property and of Developer to purchase the same shall be subject to the following conditions: 9.1. Authority Responsibilities: (a) Hold a public hearing and approve conveyance of the Property in accordance with law. (b) Approve and authorize the execution of the Contracts and all other documents necessary or desirable for the construction of the Minimum Improvements, and undertake all other actions necessary or desirable for the construction of the Minimum Improvements, provided that such approval, authorization, and undertakings shall be in the sole discretion of the Authority. 9.2. Developer's Responsibilities: (a) Developer may review and approve preliminary title reports and • surveys in accordance with this Agreement and may obtain an updated abstract of title commitment, at the cost of Developer, for the Property; DJG- 189430v1 5 CL205 -11 • (b) Approve and authorize the execution of the Contracts and all other documents necessary or desirable for the construction of the Minimum Improvements, and undertake all other actions necessary or desirable for the construction of the Minimum Improvements, and cause the City's approval and authorization of execution of all documents or desirable documents for the construction of the Minimum Improvements, and undertaking of all other actions necessary or desirable for the construction of the Minimum Improvements, provided that such approval, authorization, and undertakings shall be in the respective sole discretion of the City and Developer. 9.3. If at any time prior to Authority's conveyance of the Property to Developer, Authority determines in its sole discretion that it cannot or will not satisfy the contingencies set forth in Section 9.1 (b) and so notifies Developer, or Developer determines in its sole discretion that it cannot or will not satisfy the contingencies set forth in Section 9.2 (b) and so notifies Authority, this Agreement shall terminate and neither party shall have any further rights or obligations hereunder, except as expressly set forth herein. 10.0. Closing. The closing shall take place on the Date of Closing or on such other date as Authority and Developer may mutually agree in writing. The closing shall take place at such place as 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 Developer a quit claim deed, with a right of reverter, to the Property conveying to 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 Authority in recordable form identifying 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 DJG- 189430v1 6 CL205 -11 • Agreement or applicable law. 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, 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) Any title insurance premiums. (c) Any filing fee to record the quit claim deed and related documents. (d) State Deed Tax upon delivery of the quit claim deed to Developer. (e) Authority's attorneys fees in connection with acquisition of the Property by Authority and conveyance to Developer, such fees to be paid in accordance with and pursuant to the Preliminary Agreement and the Contracts. (fl Developer's attorneys fees. • DJG- 189430v1 7 CL205 -11 • 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. Except as provided herein, 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; except, however, the parties agree and understand that as of the date of this the City is in the process of levying special assessments for its Central Avenue Improvement Project, City Project No. 9912, that Developer shall be solely responsible for paying all such assessments, and that Authority shall have no obligation to pay any or all of such assessments, at closing or otherwise. 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 4111 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 (30) 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 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. • DJG- 189430v1 8 CL205 -11 • (b) Cancel and rescind or terminate this Agreement. (c) 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. (d) Enforce the specific performance of this Agreement. 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 Developer and prior to the issuance of a "Certificate of Completion" (as such shall be defined by the Contracts): (a) Authority and Developer (or Authority and assignees of Developer acceptable to Authority) fail to enter into the Contracts in their respective sole discretion; or (b) if Developer and Authority enter into the Contracts, Developer fails to construct or cause to be constructed the Minimum Improvements in accordance with the Contracts. Then Authority shall have the right to re -enter and take possession of the • Property and to terminate and revest in Authority the estate conveyed pursuant to the Deed to Developer, it being the intent of this provision, together with other provisions of this Agreement, that the conveyance of the Property to Developer shall be made upon, and that any instrument conveying title from Authority to Developer of the Property shall contain a condition subsequent to the effect that in the event of any default on the part of Developer and failure on the part of Developer to remedy, end, or abrogate such default within the period and in the manner stated in such subdivisions, Authority at its option may declare a termination in favor of Authority of the title, and of all the rights and interests in and to the Property conveyed to Developer, and that such title and all rights and interests of Developer, and any assigns or successors in interest to and in the Property, shall revert to Authority. 17.4. Resale of Reacquired Property; Disposition of Proceeds. Upon the revesting in Authority of title to and possession of the Property as provided in Section 17.3, 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 Authority shall find feasible and consistent with the objectives of such law and of the Project Plan to a qualified and responsible party or parties (as determined by 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 Authority in its sole discretion and in accordance with the uses specified for the Property. Upon such resale of the Property, the proceeds thereof shall be applied: • (a) First, to reimburse Authority for all costs and expenses incurred by DJG- 189430v1 9 CL205 -11 • 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 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 Authority, an amount, if paid, equal to such taxes, assessments, or charges (as determined by 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 Authority or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of 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 Authority to Developer or its assignees pursuant to the contracts and/or any other agreement relating to the Minimum Improvements (less any portion thereof previously repaid by Developer); and any amounts otherwise owing Authority by Developer and its assignees; and (b) Any balance remaining after such reimbursements shall be returned to 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 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. Miscellaneous. The following general provisions govern this Agreement. 18.1. 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. • DJG- 189430v1 10 CL205 -11 • 18.2. Assignability. This Agreement and the rights set out herein may not be assigned by Developer without prior written approval by Authority. 18.3. Entire Agreement. This Agreement may be amended, modified, or terminated only by an instrument signed by the parties. 18.4. 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 and the same Agreement. 18.5. Binding Effect. This Agreement 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. 18.6. Conflict of Interests; Authority Representatives Not Individually Liable. Authority and Developer, to the best of their respective knowledge, represent and agree that no member, official, or employee of 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 Authority shall be personally • liable to Developer, or any successor in interest, in the event of any default or breach by Authority, or for any amount which may become due to Developer or successor or on any obligations under the terms of this Agreement. 18.7. Restrictions on Use. Developer agrees that 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. 18.8. 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. 18.9. 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; and (a) in the case of the Authority, is addressed to or delivered personally to the Authority at 590 40th Avenue N.E., Columbia Heights, MN, Attn: Executive Director; and • DJG- 189430v1 11 CL205 -11 • (b) in the case of the Developer, is addressed to or delivered and personally to Terrence E. Troy, Managing Member, Columbia Heights Transition Block LLC, 325 Cedar Street, Suite 400, St. Paul, MN 55101; 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 18.6. 18.10. 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 (10) days of written demand by the Authority, pay to the Authority the fees of such attorneys and such other expenses so incurred by the Authority. 18.11 Continuation of Certain Obligations. Nothing in this Agreement shall act to modify, amend, or otherwise relieve the Developer of its obligations and undertakings as stated in the Planned Unit Development Agreement, or any other agreement to which the Developer or the Developer's assigns is a party with the City or the Authority. 18.12. Governing Law; Venue. This Agreement shall be construed in accordance with the laws of the State of Minnesota. Any dispute arising from this Agreement shall be heard in the state or federal courts of Minnesota, and all parties waive any objection to the • jurisdiction thereof, whether based on convenience or otherwise. 18.13. Limitation on Liability. Nothing in this Agreement shall be construed as a limitation on or a waiver of any limitation on or immunity from liability to which authority is entitled, under Minnesota Statutes, Chapter 466 or otherwise. • DJG- 189430v1 12 CL205 -11 • IN WITNESS WHEREOF the Authority and the Developer have caused this Agreement to be duly executed in their name and on their behalf, with actual execution on the dates set forth below. COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY By ti-- 07 w - M. By Its isz- j rPlu. . r/ DATE: A a3 , 2001 STATE OF MINNESOTA ) • ) ss. COUNTY OF /4-1,.0 kci ) The foregoing instrument was acknowledged 0� jfore me this 3r oOda of /f a v 2001 by 9060,- t' u ■e % rv.a n v∎ and L-O ci 1 u , II +- , the fr e s', rt+ and xec. D 'c and of the Columbia Heights Economic Development Authority, a public body corporate and politic under the laws of Minnesota, on behalf of the Authority. d "..1.". J. 9! !" W f -n, Notary Public f ` .` 01 .,( rARY PUBLIC • ..;: I DJG- 189430v1 13 CL205 -11 DEVEL (O PE By .A 1 its 6 1l2 -ld I DATE: , , 20Cfi STATE OF MINNESOTA ) ) ss. COUNTY OF n/7 k , The foreg9i . g instrument was acknowledged before me this ?-7day, ? ay, of ,r✓ , ?0(Z0 by / 2 t Z Z C ( ' . C . / ,'►► and ` ` , the, a 1 lend Minnesota : Gi14.61.:4/ /ta 0c6. - (r . , on behalf of the . 6 . 6/ a _ Notary Public • COLLEEN . WARD ' �• J • �' fvph YPU jC M INNES( T ' RilY COMMISSION EXPIRES t JANUARY 31, 2005 • DJG- 189430v1 14 CL205 -11 Q4\ 1 PLANNED UNIT DEVELOPMENT AGREEMENT This Agreement ( "PUD Agreement ") is made and entered into this 44 day of March, 2001, by and between the City of Columbia Heights, a Minnesota municipal corporation (the "City "), NEI College of Technology, a Minnesota nonprofit corporation ( "NEI ") and Columbia Heights Transition Block LLC, a Minnesota limited liability company (the "Developer "). WITNESSETH: WHEREAS, the NEI is the fee owner of certain real property in Anoka County, Minnesota, legally described on the attached Exhibit "A" (the "NEI Parcel "); and WHEREAS, the Developer is the fee owner certain real property legally described on the attached Exhibits `B -1" and `B -2" (the "Developer Parcels "); and WHEREAS, NEI and the Developer are assembling the NEI Parcel and the Developer Parcels from several owners and have platted the same as the "Northwestern 2nd Addition" attached hereto as Exhibit C; and WHEREAS, the Developer intends to transfer the real estate as legally described on Exhibit `B -1" (the "Rental Townhomes Parcel ") to Columbia Heights Housing Limited Partnership I, a Minnesota limited partnership (the "Rental Townhomes Owner ") for development into multifamily rental townhomes; and WHEREAS, the Developer intends to transfer the real estate as legally described on Exhibit `B -2" (the "Senior Housing Parcel ") to Crest View ONDC I, a Minnesota nonprofit corporation (the "Senior Housing Owner ") for development into a senior assisted living facility; and WHEREAS, as used herein, the NEI Parcel, the Rental Townhomes Parcel and the Senior Housing Parcel are collectively referred to herein as the "Property "; and WHEREAS, the Developer, on behalf of the Rental Townhomes Owner and the Senior Housing Owner, has made application to the City for approval of a development plan and a site plan for the Property; has requested rezoning of the Property from R -2, One and Two Family Residential, to R -4, Multiple Family Residential, and from Central Business District ( "CBD ") to R -4; has applied for a Conditional Use Permit to provide for a planned unit development ( "PUD ") project and PUD Agreement relating to the Property pursuant to Section 9.116(17) of the City of Columbia Heights Zoning Ordinance (the "Conditional Use Permit "), and has requested approval of the subdivision of the Property according to the plat of Northwestern 2nd Addition; and WHEREAS, NEI has requested rezoning of the NEI Parcel from R -2, One and Two Family Residential, to R -4, Multi - family Residential, has consented to the application of the Developer for a Conditional Use Permit for a planned unit development project and PUD Agreement relating to all of the Property pursuant to Section 9.116(17) of the City of Columbia Heights Zoning Ordinance (the "Conditional Use Permit "), and has requested approval of the subdivision of the property according to the plat of Northwestern 2nd Addition; and k , . WHEREAS, the City has agreed to allow the Developer to vary the standards for development which would be expected if the Property were developed according to the City's R- 4 zoning district in conformance with the City of Columbia Heights Code, but only if the Developer and NEI agree to the terms and conditions set forth in this PUD Agreement; and WHEREAS, on the 27 day of November, 2000, the City Council granted approval of a site plan for the Property ( "Site Plan") in the form attached hereto as Exhibit "D" and incorporated by reference (sometimes called "Final Plan" per Ordinance Section 9.116(17)), granted approval of the Conditional Use Permit for this planned unit development project and PUD Agreement, and on the 13 day of November, 2000 granted plat approval for the plat of "Northwestern 2nd Addition ", all subject to execution of this PUD Agreement by the Developer, NEI and the City. NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein, the parties agree as follows: 1. ZONING, USE AND DEVELOPMENT STANDARDS A. Planned Unit Development. This PUD Agreement is an agreement described in City of Columbia Heights Zoning Code Section 9.116(17) Planned Unit Development. Authorization of a Planned Unit Development and therefore a Planned Unit Development Agreement may be by conditional use permit pursuant to Minn. Stat. §462.3595 (subd. 1). Subsequent to the execution of this PUD Agreement, enforcement shall be by Planned Unit Development standards (Columbia Heights Ordinance Section 9.116(17)), and not by conditional use standards (Columbia Heights Ordinance Section 9.105(5)). B. Title. NEI warrants that it has fee title to the NEI Parcel and Developer warrants that it has fee title to the Rental Townhomes Parcel and the Senior Housing Parcel. C. Comprehensive Plan Compliance. The City's Comprehensive Plan is dated September 30, 1992. At pages 28 through 31 the Comprehensive Plan suggests that the Property be rezoned to R -3. However, the City recognized that this land is in a redevelopment area and the City believed that a better use of this Property in conjunction with redevelopment along Central Avenue would be to rezone the Property to R -4. Further, the City's Year 2000 Comprehensive Plan Amendment, which has been sent to the Metropolitan Council for review but which is not yet back approved, further contemplates redevelopment in the Central Avenue area in general and in this specific neighborhood in particular. The City finds that the rezoning of this property to R -4 together with this PUD Agreement creates a proper use of this land and is in full compliance with the City's Comprehensive Plan as amended. D. Zoning. 1. The Rental Townhomes Parcel and Senior Housing Parcel shall be used solely for multiple family residential uses, including accessory uses related thereto, and shall be regulated by the terms and conditions of the City's 2 zoning regulations for R -4 Multiple Family Residential, subject to the specific limitations on use in this PUD Agreement. 2. The NEI Parcel is presently being used and may continue to be used as a private vocational school as a permitted use in Zone R -4. Present and future use of the NEI Parcel shall be regulated by the terms and conditions of the City's zoning regulations governing real property in the R -4 "Multiple Family Residential Use" zone, except as otherwise provided by this PUD Agreement. E. Procedural Compliance. Heretofore the City has received, reviewed and approved all necessary applications for concept plan and preliminary plan approval. To the best of the City's knowledge, all such applications are true and correct. On the 13 day of November, 2000 the City approved the preliminary plan as required by Ordinance Section 9.116(17)(a). This PUD Agreement and the Final Plan which it accompanies were approved by the City Council at its regular City Council meeting on the 27` day of November, 2000 in conformance with Ordinance Section 9.116(17)(a)(i). F. Overall Development Standards /Variances. 1. The City accepts that the preliminary plan requirements specified in Ordinance Section 9.116(17)(b) and (c) have been satisfied. The City accepts Outlot A as a "private accessway" pursuant to Ordinance Section 9.116(17)(c)(iv), acceptable for: (a) the Rental Townhouse Parcel for R -4 residential purposes; (b) the NEI Parcel for school purposes; and (c) both parcels for all uses which are permitted in the R -4 zoning district. The City shall allow the Developer and/or NEI to widen Outlot A to 28 feet to be a "private roadway" at the discretion of either party. 2. The City accepts that each of the three separate parcels has at least 10% open space as required by City of Columbia Heights Zoning Code Ordinance Section 9.116(17)(c)(vii). 3. Notwithstanding the requirement in City of Columbia Heights Zoning Code Ordinance Section 9.116(17)(f) that the open spaces on the three parcels be conveyed by the owners thereof to the City, the City shall not require such conveyance on the condition that each parcel maintain at least 10% open space as required by City of Columbia Heights Zoning Code Ordinance Section 9.116(17)(c)(vii). 4. Attached hereto as Exhibit E is the Amendment to Agreement and Declaration of Covenants with survey exhibit, recorded at the time of recording of this PUD Agreement as an amendment to Document No. 597725, and which creates a new stormwater drainage easement. The parties hereto accept this stormwater drainage arrangement as being for their mutual benefit. The parties understand that a significant obligation of the stormwater drainage easement is that in the event of a so- called "100 year storm ", the retention pond on Outlot B, Northwestern 2nd 3 Addition will back -up. The back -up water will generally extend from the said pond on Outlot B westerly into what is presently NEI's parking lot existing on Lot 2, Block 1, Northwestern 2 " Addition. Understanding the burden the stormwater drainage easement places on the NEI Parcel, the Developer and the City agree that NEI, at its sole cost and expense (subject to such agreements to the contrary as shall be made subsequent to this PUD Agreement), may expand the size of the stormwater retention pond westerly onto Outlot C and thereby comply with the City's stormwater drainage easement requirements, but at the expense of the loss of the parking spaces on Outlot C. In the event NEI so elects, NEI will nevertheless be obliged to comply with City parking requirements by installing more parking spaces elsewhere or potentially reducing its student enrollment. All existing drainage and utility easements dedicated in the underlying plat of "Northwestern Addition" have been duly vacated by the City. The City acknowledges the rights of the owners of the lots in the said plat to utilize the dedicated easement areas for all lawful purposes including, but not limited to, using such areas for parking and automobile ingress and egress. 5. The City has amended Document Nos. 596930 and 328871 as part of this PUD Agreement. The City acknowledges the rights of the owner of Lot 1, Block 1, Northwestern 2 Addition, to utilize the dedicated easement areas for all lawful purposes including, but not limited to, using such areas for parking and automobile ingress and egress. 6. In satisfaction of the requirement in City of Columbia Heights Zoning Code Ordinance Section 9.406(6) that, in connection with any subdivision, a park dedication fee shall be payable before issuance of the plat for the subdivision, the parties agree that the Developer shall pay to the City a park dedication fee in the amount of $0.00. G. Use and Development Standards. 1. Rental Townhomes. The Developer or the Rental Townhomes Owner shall develop the Rental Townhomes Parcel according to the approved Site Plan and the development standards set forth in this Section G. As - -_ used in this section, the term "Townhomes" means the multifamily rental townhomes developed by Developer or the Rental Townhomes Owner on the Rental Townhomes Parcel. The Site Plan depicts the layout. a. Density. Developer or the Rental Townhomes Owner shall construct on the Rental Townhomes Parcel four buildings consisting of twenty -two (22) unit multifamily rental housing townhomes and one garage building pursuant to the Site Plan. The twenty -two multifamily units complies with the density limitations contained in Zoning Code Ordinance Section 9.110(4)(a)(vii) and (viii). 4 b. Setbacks. (1) No principal building shall be nearer than its height to the rear or side lot line when such lot lines abuts an R -1 or R -2 zoning district. (2) No building shall be located less than fifteen (15) feet from the back of the curb on roadways and accessways, and three (3) feet on all service roads. (3) No building shall be nearer to another building than one- half (1/2) the sum of the height of the two buildings. (4) No building shall be located less than fifteen (15) feet from the back of the curb on roadways and accessways, and three (3) feet from the back of the curb on service roads. (5) Notwithstanding the requirement in City of Columbia Heights Zoning Code Ordinance Section 9.110(4)(iii) that the side yard shall be one - fourth the height of the building or ten (10) feet, whichever is greater, the building identified as Rental Townhome Number 1 on the attached Site Plan may have side yards of 8 'h feet on the west property line and 9 '/2 feet from the east property line of the Rental Townhomes Parcel, and the buildings identified as Rental Townhome Number 3 and Rental Townhome Number 4 may have side yards of 6 feet. c. Height. The height of the Rental Townhomes is restricted to 35 feet or three (3) stories measured from the elevation of the mean curb level of 41 Avenue NE. d. Access and Parking. Access to the Rental Townhomes shall be via Outlot A for all public and private purposes. The Rental Townhomes will have a minimum parking requirement of thirty - nine (39) parking spaces which shall be comprised of garages and open parking spaces all as shown on the Site Plan. e. Screening. Notwithstanding the requirement in City of Columbia Heights Zoning Code Ordinance Section 9.117(3) that there be screening where any business is adjacent to or across the street or alley from and within three hundred (300) feet of property zoned or developed for residential use, screening shall not be required between the Rental Townhomes on the easterly property line of the Rental Townhomes Parcel and the property which is used for commercial purposes to the east of the Rental Townhomes Property. 5 2. Senior Housing. The Developer or the Senior Housing Owner shall develop the Senior Housing Parcel according to the approved Site Plan and the development standards set forth in this Section G. As used in this section, the term "Senior Housing" means the assisted living facility to be developed by Developer or the Senior Housing Owner on the Senior Housing Parcel. The Senior Housing Parcel shall at all times be used primarily as a residential living facility for persons aged 55 and older. The Site Plan depicts the layout. a. Density. Developer or the Senior Housing Owner may construct on the Senior Housing Parcel a fifty (50) unit assisted living facility (the "Senior Housing Building ") pursuant to the Site Plan. b. Setbacks. (1) No principal building shall be nearer than its height to the rear or side lot line when such lot lines abuts an R -1 or R -2 zoning district. (2) No building shall be located less than fifteen (15) feet from the back of the curb on roadways and accessways, and three (3) feet on all service roads. (3) No building shall be nearer to another building than one - half (1/2) the sum of the height of the two buildings. (4) No building shall be located less than fifteen (15) feet from the back of the curb on roadways and accessways, and three (3) feet from the back of the curb on service roads. c. Height. Zoning Code Ordinance Section 9.103(10) measures building height from the mean curb level at a street. The mean curb level elevation is 200 feet at 42 Avenue NE. However, for the purposes of this PUD Agreement, the height of the Senior Housing Building is to be measured from the existing ambient ground level at the west side of the proposed location of such building which elevation is 198 feet. See the Site Plan attached. From such elevation of 198 feet, the Senior Housing Building is -_ permitted to be forty (40) feet in height, i.e., extending to an elevation of 238 feet. d. Access and Parking. Access to the Senior Housing Building shall be via 42 Avenue N.E. and the public alley lying westerly and southerly of the parcel, including Outlot D of Northwestern 2nd Addition. The Senior Housing Building will have a minimum parking requirement of twenty -five (25) parking spaces, but no outside loading dock, all as shown on the Site Plan. Eleven (11) of the twenty -five (25) required parking spaces may be via a permanent parking easement over part of the NEI Parcel as shown 6 on the Site Plan. The current City of Columbia Heights Zoning Code does not include regulations governing the use of the Senior Housing Building as an assisted living facility. The most similar use addressed in the City of Columbia Heights Zoning Code is a nursing home. The parking requirements for a nursing home are stated at City of Columbia Heights Zoning Code Ordinance Section 9.116(4). As these parking requirements do not specifically apply to the Senior Housing Building, the City and the Developer have agreed to use the industry standard for assisted living facilities as the requirement for the number of parking stalls required for the Senior Housing Building. The industry standard is one (1) parking space per two (2) assisted living residential units. The Senior Housing Building contains a total of fifty (50) assisted living residential units and, therefore, a total of twenty -five (25) parking spaces will be required for the Senior Housing Building. 3. NEI College of Technology. NEI shall be permitted to maintain and use its existing four story school building for a private vocational school which teaches day and evening classes for adult students in technology subjects. The present enrollment is about 600 students. The Site Plan depicts the existing layout. a. Density. The City acknowledges that the present school has an enrollment of about 600 students. The City hereby permits NEI to increase its enrollment to up to 1,000 students subject to NEI maintaining the parking spaces described below. b. Setbacks. The existing building and other improvements on the NEI Parcel either meet all required setbacks, or are permitted pursuant to this PUD Agreement, including the proximity of the existing school building to the road on Outlot A. Moreover, notwithstanding the requirement in City of Columbia Heights Zoning Code Ordinance Section 9.110 (4)(iii) that the side yard shall be one - fourth the height of the building or ten (10) feet, whichever is greater, in the event that NEI dedicates the road on Outlot A to the public for a public road in a plat or otherwise, the setback for the school building in its current location and height, as depicted on the attached Site Plan, shall be permitted pursuant to this PUD Agreement. c. Height. Zoning Code Ordinance Section 9.103(10) measures building height from the mean curb level at a street. The mean curb level elevation is 210 feet at 41 Avenue NE. The existing NEI School Building is 60 feet, 6 inches high to the parapet, 4 stories high, and 80 feet high to the top of the chimney, all as measured from the existing ambient ground level elevation of 196 feet on the north side of the existing building as shown on the Site Plan. Such height is in excess of the height permitted in Zoning Code Ordinance Section 9.110(4)(a)(i) which otherwise limits 7 building height in Zone R -4 to 35 feet or three stories. However, for the purposes of this PUD Agreement, the height of the NEI School Building is to be measured from the 196 foot elevation. See the Site Plan attached. From such elevation of 196 feet, the existing NEI School Building, and any successor building built as permitted herein, is permitted to extend to elevation 256.5 feet elevation to any parapet, to be 4 stories high, and to extend to elevation 278 feet elevation to the top of any chimney. d. Parking. Before the plat of Northwestern 2nd Addition, NEI had an integral 6.453 acre site with land area for at least 500 parking spaces. In furtherance of the City's desire for senior citizen housing and rental townhomes, the City will permit noncompliance with the City's parking standards pursuant to Ordinance Sections 9.116(2) through 9.116(4) as follows. NEI will have 456 on -site parking spaces as shown on the Site Plan. The parking spaces on Outlot C (west of the pond on Outlot B) and Outlot F (west of the townhouse building on the Rental Townhouse Parcel) shall be considered on -site parking spaces for the NEI Parcel. In addition, the City will enact a permit parking system for Jackson Street and 41 Street N.E. specifically and solely for the benefit of the NEI Parcel with 44 permit parking spaces allocated to NEI, bringing NEI's parking space total up to 500 spaces. The permit parking ordinance provides 44 on- street parking spaces for the sole and exclusive use of NEI between 7:00 a.m. and 3:00 p.m. Monday through Friday, excluding holidays, pursuant to the ordinance and permits described below. The 44 spaces of off -site parking are permitted to meet NEI's parking obligation. Further, it is agreed by the City that the NEI Parcel with 500 parking spaces as aforesaid shall be entitled to a maximum student enrollment of 1,000 students to accommodate future growth of NEI or any successor school. e. Access. Access for school use shall be via 41 Avenue N.E., Jackson Street, the public alley west and south of the Senior Citizen Parcel and Outlot A lying between the NEI Parcel and the Rental Townhomes Parcel for all public and private purposes. f. Future Improvements. NEI shall be entitled to improve and remodel, or demolish and reconstruct the existing school building, so long as the size, number of stories and height of such remodeling or new building does not exceed the existing height described above at subparagraph (c) and location shown on the Site Plan. The maximum permitted student population shall be 1,000 students. If NEI changes the use of the school to multi - family residential use as permitted in zone R -4, then NEI must conform to the R -4 zoning requirements. 8 g. Successor. NEI shall be able to freely transfer the NEI Parcel subject to and together with the rights and obligations herein set forth to any successor owner who uses the NEI Parcel as a school without approval of the City. h. Legal Conforming Use and Improvements. The City accepts the current use of the NEI Parcel and the existing and contemplated improvements thereon as legal conforming uses and improvements pursuant to this PUD Agreement. i. Stormwater Drainage. NEI and is successors shall have the right to replace the stormwater drainage area on Lot 1, Block 1, Northwestern 2 " Addition, with an enlarged stormwater drainage pond on Outlot C as provided by Section I(F)(4) above. IL CONSTRUCTION OF IMPROVEMENTS A. Plans. The Developer agrees to construct, or to cause either or both of the Rental Townhomes Owner and/or the Senior Housing Owner to construct, all improvements within the Property as shown on the Site Plan in accordance with plans and specifications approved by the City. The Site Plan may not be modified by the Developer without the prior written approval of the City. All labor and work must be done and performed in a workmanlike manner and in strict conformance with the Site Plan. The City agrees to promptly review any request from the Developer to modify the Site Plan and to notify the Developer of its approval or disapproval within 30 business days of the date of receipt of such request. If the City fails to respond in writing within 30 business days of receipt of such request, the modification shall be deemed approved. B. Staking, Surveying and Inspections. Developer, at its sole cost and expense, must provide, or cause the Rental Townhomes Owner or the Senior Housing Owner to provide, all staking, surveying and inspections for the improvements in order to ensure that the completed improvements conform to the Site Plan. C. Time for Developer's Performance. The Developer agrees to commence work, or to cause the Rental Townhomes Owner or the Senior Housing Owner to commence work, on the improvements shown on the Site Plan on or before June 30, 2001 which is ninety (90) days following the date of recording of this PUD - Agreement, unless the Developer or the Rental Townhomes Owner or the Senior Housing Owner otherwise requests and the City consents in writing, and will have all work completed, or cause the Rental Townhomes Owner or the Senior Housing Owner to have all work completed, and the improvements shown on the Site Plan completed to the satisfaction and approval of the City on or before twenty -four (24) months after the commencement of construction on the Property. The City may at its discretion extend the date(s) specified for completion upon receipt of written notice from the Developer or from the Rental Townhomes Owner or the Senior Housing Owner, of the existence of causes over which any of them has no control that will delay the completion of the work. 9 D. Improvements on NEI Property. The Developer also agrees to construct the improvements on the NEI Property as shown on the Site Plan in accordance with plans and specifications approved by NEI. As between the Developer, NEI and the City, it is the Developer's obligation to construct and reconstruct the improvements on the NEI Property to accommodate the required number of parking spaces as set forth herein. Developer shall stripe the city street for the permit parking spaces and install necessary signage for same. IIIIII. PARIIUIINO ORDINANCE A. New Ordinance. The City has enacted the ordinance attached hereto as Exhibit "F ", entitled the "Ordinance 1426 Being an Ordinance Designating Permit Parking Only From 7:00 A.M. to 3:00 P.M., Monday through Friday, Except Holidays on 41 Avenue N.E. and Jackson Street N.E. Adjacent to 825 41 Avenue N.E." (herein, the "Parking Ordinance "), for the sole and exclusive benefit of the NEI Parcel during the days and times as set forth therein. The City has determined that the Property is large enough to accommodate the Townhomes and Senior Housing and NEI's use of the NEI Parcel as a school, and that such new use of the Property is necessary and helpful additions to the housing mix and development of the City. To replace certain parking spaces previously available to NEI due to Developer's acquisition of some of the land from NEI, the City has specifically agreed to provide for forty -four (44) permit parking spaces for NEI via the Parking Ordinance. B. Issuance of Permits. NEI and the City agree that the permits for the said forty - four (44) permit parking spaces for NEI shall be issued in accordance with the Parking Ordinance and approved as to form by the City of Columbia Heights Police Department. IV. DEFAULT AND REMEDIES A. Denial of Permits. Breach of any term of this PUD Agreement by NEI or the Developer, or any of the Rental Townhomes Owner or the Senior Housing Owner assuming the Developer's obligations hereunder, or failure to comply with City ordinances shall be grounds for denial of building or occupancy permits for buildings within the subdivision until the breach has been cured. B. Rights Cumulative. No remedy conferred in this PUD Agreement is intended to be exclusive and each shall be cumulative and shall be in addition to every other remedy. The election of any one or more remedies shall not constitute a waiver of any other remedy. C. Force Majeure. Notwithstanding the provisions of this Article IV, if by reason of force majeure any party hereto shall be unable in whole or in part to carry out its obligations under this PUD Agreement and if such party shall give notice and full particulars of such force majeure in writing to all other parties within a reasonable time after the occurrence of the event or cause relied upon, the obligations under this PUD Agreement of the party giving such notice, so far as they are affected by such force majeure, shall be suspended during the continuance of the inability, 10 which shall include a reasonable time for the removal of the effect thereof. The suspension of such obligations for such period pursuant to this subsection (b) shall not be deemed an Event of Default under this Article IV. The term "force maieure" as used herein shall include, without limitation, acts of God, strikes, lockouts or other industrial disturbances, acts of public enemies, orders of any kind of the government of the United States of America or of the State or any of their departments, agencies, governmental subdivisions, or officials, or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fire, storms, floods, washouts, droughts, civil disturbances, explosions, partial or entire failure of utilities, or any other cause or event not reasonably within the control of the party claiming such inability. D. Breach by City. Breach of any term of this PUD Agreement by the City shall be actionable by the owners of the NEI Parcel and/or the Developer Parcels. Such complainants shall specifically be entitled to seek and obtain relief against the City in civil proceedings requiring a writ of mandamus for mandatory action and/or an injunction to prevent action by the City. V. MISCELLANEOUS PROVISIONS A. Amendment. Any amendment to this PUD Agreement must be in writing and signed by all parties having an interest in the respective parcels, and by the City. B. Agreement to Run with Land. This PUD Agreement is to be recorded among the land records of Anoka County, Minnesota. The provisions of this PUD Agreement shall run with the land, be binding upon and inure to the benefit of NEI and the Developer and their successors in interest, including the Rental Townhomes Owner and the Senior Housing Owner, and shall be binding upon and inure to the benefit of the City of Columbia Heights, in perpetuity. C. Severability. The provisions of this PUD Agreement are severable, and in the event that any provision of this PUD Agreement is found invalid, the remaining provisions shall remain in full force and effect. D. Notices. All notices, certificates or other communications required to be given to City and Developer hereunder shall be sufficiently given and shall be deemed given when delivered or when deposited in the United States mail, first class, with postage fully prepaid and addressed as follows: To City: City of Columbia Heights 590 40 Avenue N.E. Columbia Heights, MN 55421 -3878 To Developer: Columbia Heights Transition Block, LLC c/o Real Estate Equities, Inc. 400 Degree of Honor Building 325 Cedar Street St. Paul, MN 55101 11 To NEI: NEI College of Technology 825 41 Avenue N.E. Columbia Heights, MN 55421 Attn: President The City, NEI and the Developer, by notice given hereunder, may designate different addresses to which subsequent notice, certificate or other communications should be sent. E. Compliance with Laws. The Developer and NEI shall comply with all laws, ordinances and regulations of the state of Minnesota and the City applicable to the Property. This PUD Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, without regard to choice of law provisions. F. Non - waiver. If any party waives any default or nonperformance by another party in writing, such waiver shall be deemed to apply only to such event and shall not waive any other prior or subsequent default. [Signature pages follow.] 12 IN WITNESS OF THE ABOVE, the parties have caused this PUD Agreement to be executed on the date and year written above. CITY OF COLUMBIA HEIGHTS SOTA a Minnesota mu, ipal corporate Its: V ayor and By: l - 74.1 — Its: City Mana er STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA ) The foregoing instrument was acknowledged before me this ' day of March, 2001, by Gary Peterson, the Mayor, and by Walter R. Fehst, the City Manager, of the CITY OF COLUMBIA HEIGHTS, MINNESOTA, a Minnesota municipal corporation, on behalf of the corporation. Notary Public [signatures continued on next page] 0 This document was drafted by: Lindquist & Vennum P.L.L.P. (RGM) 4200 IDS Center Minneapolis, MN 55402 13 NEI COLLEGE OF TECHNOLOGY, Minnesota nonprofit corporation By: ��/ ®i� Its: ��. , , �,t. STATE OF MINNESOTA ) ) ss. COUNTY OF / y „�,x 7 ) The foregoing instrument was acknowledged before me this , ,/ , - day of March, 2001 by Charles Dettmann, the President of NEI COLLEGE OF TECHNOLOGY, a Minnesota nonprofit corporation, on behalf of the corporation. bV Vrf \i iL�VbVV� -vVY ..; v N {:f ." 4; v ARO� ' iN .-. % OI c :,.; .4_.,e l' Zo--,_._- ' . tlp Coo TiS510i LYrrlfeS ;al ... Notary Public 17 ,,.., .. ..•r.•. lU�AAAfVW'�AFiNN � [signatures continued on next page] 14 COLUMBIA HEIGHTS TRANSITION BLOCK, LLC, a Minnesota limited liability company By: Its: I k e & STATE OF MINNESOTA ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of March, 2001, by Keith S. Jam, the Treasurer of COLUMBIA HEIGHTS TRANSITION BLOCK, LLC, a Minnesota limited liability company, on behalf of the limited liability company. OLSOM ti4r, Piotary Public ( nnesota 1 OdVLeP Mi Notary Public 15 EXHIBIT A LEGAL DESCRIPTION OF NEI PARCEL The real property located in Anoka County, Minnesota legally described as follows: Lot 1, Block 1, Northwestern r Addition A -1 EXHIBIT B -1 LEGAL, DESCRIPTION OF RENTAL. TOWNHOMES PARCEL The real property located in Anoka County, Minnesota legally described as follows: Lot 1, Block 2, Northwestern 2 Addition B -1 EXHIBIT B -2 LEGAL I ESCRIPTION OF SENIOR HOUSING PARCEL The real property located in Anoka County, Minnesota legally described as follows: Lot 1, Block 3, Northwestern rd Addition B -2 EXHIBIT C PLAT OF NORTHWESTERN 2ND ADDITION See Attached C -1 p �R City of Columbia Heights NORTHWESTERN 2ND e4DD�U ��I1V Anoka County, MN, Sec. 35, T. 30, R. 24 KNOW ALL I TIat NEI CoO.Oe of IMOT. • Mlnneaate neo-prollt . fie Merlhr.lern STAYS OF MINNESOTA E lectronic. In.11ml.. fee eensr 01 Me Miriam. deaedbed properly saustod In the Camn17 el . S1.1. el MI fn. le win: COUNTY OF Lel I. Sleek 2. NORTHWESTERN ADDITION. 1he1 pawl reed a 1.11 0.. The 1 lag Inser0m.11 cm In me Ihle__ day el , - 0y B sglnnlog of Use Ina ley el lha .1.11 ,1y extension 0f tn0 00311 1101 of Lel 2, BheL 21. COLUMBIA HEIGHTS ANNEX IS a1 Columbia H.10h1. Tran.Mee 51osa. LLC. • NI.n..e11 0.k3d Iteb.My TO MINNEAPOLIS. ANOKA CO. MINN. end the ea. line el .314 Lel 1: 1 southerly along ..14 sem Ian. 5.00 lath; Germany. On M iha11 el 11e company. e n en mein.. bearing of Nerlb a5 da0 minim. 35 W.M. parallel with Me north line of amid Lot 1 • distance el 101.55 NM; thence N.1b 31 degree• 25 minute. 01 Mal 31.24 feel; Ilene, Nora. 0 ....... 22 minute. 22 ueond. Seat 14.00 Net: Mange Ned.. ...0000 02 Maul. 52 ..esnd. Feet 57.77 1101 In said nerds line el Lot t: 11e..e easterly elen0 meld north line .. maid 0221 line of UHT: .b eII.rly 210110 .•le 30.11101 to IM poll, el 501210 Prrolk. County. MI la 1,01x1110. My C.mmI.ONn Sambas L.I. 20 aid 50. Oloet a.. COLUMBIA HEIGHTS ANNEX TO MINNEAPOLIS, ANOKA COUNTY. MINNESOTA. log 10 the I hereby pally 11011 have surveyed and pietted Mc properly 4,.00x0.1. Ih1. M.1 as NORTHWESTERN END ADDITION; Ind MM 'email .lab Memel: Ws pleb IS a amnia ....... .3.11., .l 3310 matey: that ell .ea.eeele S.0 boos correctly placed le the green/ a..1ean ea the Together MO. a.0 MI o1 xe 0.0.1.1 alloy adpeent to LIN 25 end 30. Bleat 20. COLUMBIA HEIGHTS ANNEX TO plat; Mal a5 distances ere correctly seas en Me plot Is met all imedrodths ef • feel: Mel the •0te1M IMe. are MI IS. COUNTY, MINNESOTA, lying KM... M....M ,1y .010,21en• of IM 50,15 line of ea14 LM 30 .1d the oerro0Uy dwalge2W 0. me Plot: an. MM Moro are es net hand. 11 .10110 highways to be 41•gn2IW on Me plat ether a..1 25 swab Ilan el •114 Lel 20. .idea. Merlin. A1d Cellnat. Hal011. Transition Sloa1. LEO. •' MMemel@ M0Ite0 SoSSty mammy. Is. miner el the lellowleg ...erne. properly . MU11.4 15 11• County ef . 2131. M MIness0N. le alt Thal pall el LM 1. Bloat 2. NORTHWESTERN ADDITION. ..eke Comely. MNnsole 4.erxed as 1.11.0.: O eg1nola0 el the I.lar.Mien el Me we.Nrly 0.la55101 M the moth Ma M Lel 2. Bleat IS. COLUMBIA HEIGHTS ANNEX Jeffrey D. LI , Land EMO2yer TO MINNEAPOLIS. ANOKA CO. MINN. and the ease Use M .IN Let I; thence 30311.017 .long Md east 11x. 0.00 het; MI•ea•e1. ReHi.lratlo. No. . 1 ae 0200.04 100410 of Nara. SS .101002 30 0Inua0. 30 mimed. Weal. parallel wHh the meth tine ea said Lel 1 OP MI e 41. 1.00..1111.00 1101; Mo100 North SI 4egre55 25 Mnute. 01 ..een.e W..1 01.20 Teat; 110,00 Mirth 0 degree. 23 COUNTY OF minas. 22 .eaMr.. Best 14.55 fool; 0111 A degree. 02 mlr0M.. 62 .2003.. East 57.77 feat to mid earth Item of The foregoing Melrose.' was 2.1,00 Mery .a thte day of , by Jeffrey Let 1; Mena easterly Moog 1214 0e ,11 Use le sold last Moo ef Lel 1: Memo 10uM047 eking ..M *eat ilne N Me pedal of D. Llmgren. Land Swreeyer. bsoMning. Lets 1 and 2, Bleat 25, COLUMBIA HEIGHTS ANNEX TO MINNEAPOLIS. ANOKA COUNTY. MINNESOTA. 20.rdln1 le Me regard plot Merest; TEOaISer with all M Me mental alley 04feeenl te Lets 1 ea. 2. Brent W. COLUMBIA HEIGHTS ANNEX TO MINNEAPOLIS. Notary Public, 011011 Comely. MIn.eaM0 ANOKA COUNTY. MINNESOTA. 17111 between 11e westerly eolono1001 el the north line 01 .211 Let I end the south .11• ef said My Ce0el.le. Expire. .an.. l7 3,. 2000 Lel2: Ham camsd Me same to be .rayed and WARM as NORTHWESTERN 2ND ADDITION. and de hereby dentse and dedicate 1a the CITY OF COLUW0IA HBIGNTO. pestle. 1st ....moot. es Mew on We p1.1 ter draleage and MONy persons .MI. TM. plot sea Mien reviewed and 1s racem.enl.l for •ppreal MI. do el In MM... whereof, 1214 NEI College 2I legy. • MISOIMO nth -preM eorp.ratIOn. It. Mentoeal leel/Onlc. 11.1001.. has maim Pre N be sien04 by I7. proper Maher Ole day ef By: City Wilmer ROI CO OF TECNOOLOBY 11ere17 certify MM III City Comm. of M0 City M Colombia HMSSN. AM. COMP, MI ly lad and 02Prov04 M. plat M NORTHWESTERN END ADDITION el I regular '011.5 held this by of _� H • Br applicable, the 0110.1 02me.113 old resent el the CI .IOIIsor ef Tr Ile. eat the County Nigllro Engineer has been received by the Cloy or Hie Pre2adbed 30 day pried hs 010.60. 011MM receipt Of ouch mammas and OF 01 roeam,ndMms. ea provided by Mlleasae 0121010.. SOS use .. 605.05. O. 2. COUNTY OF TM (01001410 loareeenl wm lsnewl.l.04 bolero me Ude_ day ef by By: Cloy Clara OS of NEI 000090 el 70.5101.!. • 011001011 min./refit eegerellon. x1 Ne,1S0a.NrS Electronic. In•NMe. e1 behalf el Geld CorporMpe, SURVEY DIVISION, COUNTY, 01 Cl and approved tlh day Of Hatay PuatN, County. 11ene•M0 By My Cee nieMen Expire. Anat. 0.0017 B la Mtn.. whereof. Ml 0010•111 00151.1• npp.11te• Bless. LLC. • MIon.se13 Mailed .ability company. seats le be Menet by Ire proper Wiest MI. day S CDLUDDIA NEIGHTO TRANSITION DL00K, LEO By: HEDLUND PUNNING INGWEERPIC 4fW CNFFT T /TF 9 cum i d I RTHWESTERN 2ND ADDBTT ©1 City of Columbia Heights 1 1 I Anoka County, MN. I I I.. '' I I I I I I I I Sec. 35, T. 30, R. 24 I`` =1 I I I I °:I I ----- 14_ - - - - J 69 :3 L- - - -- . - - J • 60 ' - . L---- J ;; L - - -J -• North Ens of lot 1.5bd, L NA. 50 _ _ MI U.S. N Eaa.naat - - S 56.274 i , ,, . 0o• Gee. N9 1x60637 - - , I- I 6o 300 41 46I- 9:0 -2gri 26 ;6 L_ _ Imo_ - •--_4z� 4. I COLUN cA r EIGHTS 1 W 1 g OUTLOT E . ; & ' h, S56 I I COLUMS A a t06 G � "� , �,,,� ANNEX b om rwa . 0.q n MINNEAPOLIS. . =:% I s 1 g as60 � } � 1 .: 'uu Eae .e.. 0.,7 1 , ° 0. 1- - - - N.A.- 6.ut. plat a NanNNE51F1M 4Gpn0N. y ANNEX TO I F -- ANOl;A CO ., MM. � ������ m0 K .• I ara6w0• and U Wty •• . - LJ $ .`a ' P - . 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I - - - - - -I, 41 - 11 zi I I 1 I 1 : I� 1 I I HEDLUND I I r I I `: I I x ENCN G SI/RI IINC I1 1 .. it I SHEET 2 OF 2 SHEETS EXHIBIT D SITE PLAN See Attached D -1 a=.� IL )L - --'� Liu-- -1 _ 1 7r . ; 4= , i 11 IL—_i - - - I I �,ao: 1 �, i — _ . COLUMBIA HEIGHTS r I , - r . . - i "i _ lI i � � i = i (- TRANSITION BLOCK e�:f<,:� E--, x _` I ., 'J III r, - . I r— r - I ice" = J I I h.._______ tir} 1 i t -'___ "•� �N- REDEVELOPMENT g;E� _� - I . 1 , I I I - o I I ' r ` 1>` . I � ,y � 1j L - - -- - - fsZ _ I .� _ ; " of Sleights tl Lill t K-' _ 1,1----1--1- ' I I Anoka County, Minnesota t 9 1 1 G eL!i I F.-...,___ ° I_ t I I -- 1 J I I I I I ty , q 4 \ �5 J r I , I 1, _ I I I I i I _ L_ =• : .r. - � - i. , 1 I NEI Onsite g � . - ! j ... I • I I - I,I -1 - -t v III I _ -F - - -- ! -- I / I L Y Parking Information � ! I n c a - --- 1i 1 L ri— � ''l I I - � I I I rs c a ea al . - 42nd Avenue N.E. - i u _ '- v 30 e'.5° 2 t - r - 6 ;�� I Ol�tr '118 1 1 P r � � r �_� I I L' . f e o • _ 2� : 5 s8 r� ^ ` I. n I . �' ' � ` ` I . i I -- I x x , is ' €. °_ � J N. �_ �('- e �4 - - Ij 1 ,an -- - I � > - - - -i ! I � ! , I I I - -'t C .a sx 10 .x B up �- - _I" 1 " w_� 1 . ,.._ m ,� s� - - _ I I , s Surface Parking �_ i I r I -� - L I y \ I For Proposed Buildings ......z.,..... Ell ... -- MA r ., , NMI M a _ _ I n ! ' r• r I C \ m a I 77=== - I a (I \ - -- Reconstructed - xxta u^ In el ..31111 MI I ! St Parking 1 L - 6 , .j - -.— n ■� I w > � � 1 ■lil: ^��_,. 5 -A e 11 �l I 1 - Sea* wa gee ' 1 I I r . ➢ Ca�t.�11 I 1 1 I Z i , i w , as J - � I , m ; I - ,., ' (9r /g l, �l K Imo .; o i le e - •I 1, L+ Y ��1 ur �llItlii g i _ I x - =.x I IIP i I evw u .. 6C : 1 ■ oa , I I � I Parking Stall Q �s i I ` - -- .... I i - j i Dimensions 'i$ r `1 . I V � ' .,, D' I ,s . - - - 1 ' . I 1 slams s.0 • . m.r . /xs• ax. xa. �= { ■ I I I a " . ° ia.x�- Ill . es esst>wq,— W � = rx • . I■ I O / / /�/ / j / / �I ' 1 I I <ve r a: °u° • r. a ■ ■ I a II a � � I p ir- �- -._ '■ em u. / / / / I➢ I$'a / L• r', E I. I , / // I _ Parkin Summary vy 1x ; ■ I / � /j ® ��'��� ' / It I I 9 Y — L _ - ®,. I - , 1 � � C F / ' / ! I [ a- v1. ^.e.o- .x sa VI 7 - '=_ • I I j' //j /, 6 % / / / 1 1 :— � I l .n :....x.- o % Tete NO , 1 1 6•02.3 - _P C ��I eGr�HL1 ^ v. J I riraZIEZ2MirEl I 3 C .r..,..- a 6.8 ICJ L , ® :r' ` ° T t . '-! .14 1IPT l! I 1 s. CD I .:a _ n q v' '�_ I __ - ,� L_ c 3 1 3`� I , ua � �II .... ._, t - s7, F�.S a - - � _ - �--„� 00 1 ; ; E Us! Avenue N.E. _ _ - - - - - - - - - 3 s °i e r — I I J r _.- — s` _ e f,_: e 1 I j 1 15 I� t � I 1 _ I o° 1-7,-- I �i w g 1 l L 11 i I'I O L I I I ---, (' .: 1 1 5 A la I I I r — I III { I I . � _ —_ —_ C I I J I _ p. 1 1 I � I i ! j H- - -, f a ^ - 1 - 1 1, I -- - �+_� `� r I ( I Ma I ` ol 1 ' t- �I I a o :. I I� �a I I I �11 m a w 00 ,w r-I I I i 1 11— '7 ` — �' - .. 1 W_ I I. A — � - - - 7 ill j Scale I = 50' ,x/07/2000 C' EXHIBIT E AMEN !I MENT TO AGREEMENT AND DECLARATION OF COVENANTS See Attached E -1 AMENDMENT TO AGREEMENT AND DECLARATION OF COVENANTS THIS AMENDMENT TO AGREEMENT AND DECLARATION OF COVENANTS (the "Amendment ") is made this day of March, 2001, by and between The City of Columbia Heights, Minnesota a municipal corporation under laws of the State of Minnesota (the "City") and NEI College of Technology, a nonprofit corporation under the laws of the State of Minnesota ( "NEI") and Columbia Heights Transition Block, LLC, a limited liability company under the laws of the State of Minnesota ( "CHTB "). WHEREAS, NEI is the fee owner of certain real property located in Anoka County, Minnesota formerly described as Lot 1, Block 2, Northwestern Addition; and WHEREAS, NEI granted to the City drainage utility easements on certain portions of said Lot 1, Block 2, Northwestern Addition, and agreed to allow use of the driveway located on the west side of the existing structure by local Jackson Street residents to exit onto 41S Avenue Northeast and agreed to maintain the roadway easement immediately south of Jackson Street as evidenced by the Agreement and Declaration of Covenants dated September 8, 1982 and recorded in the Office of the Register of Deeds, Anoka County, Minnesota on September 17, 1982 as Document No. 597725 (the "Declaration "); and WHEREAS, said Lot 1, Block 2, Northwestern Addition, is included a replat of real property located in Anoka County, Minnesota, named and referred to herein as "Northwestern rd Addition "; and WHEREAS, as of the date hereof, NEI has conveyed certain property to CHTB, and following --- such conveyance, and the acquisition by CHTB from the City of certain additional real property located within Northwestern 2 Addition, NEI now owns: Lot 1, Block 1, and Outlots A, C, E, and F, Northwestern 2n Addition, Anoka County, Minnesota ( "NEI Property") and CHTB now owns: Lot 1, Block 2, Lot 1, Block 3, and Outlots B and D, Northwestern rd Addition, Anoka County, Minnesota ( "CHTB Property"); and WHEREAS, in connection with the development of the CHTB Property, CHTB has requested and the City has given approval to a stormwater drainage system for Northwestern 2 "d Addition as shown on the "Columbia Heights Drainage Area Map" labeled C -1.41 and attached hereto as Exhibit "A" (the "Drainage Area Map "); and WHEREAS, pursuant to the plat of Northwestern 2 Addition, Outlot B is to be used as a stormwater retention pond (the "Retention Pond ") as shown on the "Columbia Heights Redevelopment Ponding Area Plan" labeled C -1.42 and attached hereto as Exhibit `B" (the "Ponding Area Plan"); and WHEREAS, to provide for the stormwater drainage system, the City has required that the plat of Northwestern 2n Addition encumber Outlot C with a drainage and utility easement; and WHEREAS, the City and NEI desire to amend the Declaration to revise the grant of easement rights for the use of the driveway and to modify the grant of drainage utility easement rights; and WHEREAS, NEI desires the ability to remove the drainage utility easement from the location set forth pursuant to this Amendment by expanding, at its sole cost, the Retention Pond into Outlot C. NOW, THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, the City, NEI and CHTB do hereby agree to amend the Declaration as follows: 1) Roadway Easement. The grant of rights to the City for use of the driveway located on the west side of the existing structure by local Jackson Street residents to exit onto 41s` Avenue Northeast and requirement that NEI maintain the roadway easement immediately south of Jackson Street is deleted in its entirety from the Declaration and the following is substituted in its place: A) NEI hereby grants to the City an easement for access and roadway purposes over and across the following described real property (the "Roadway Easement Area "); A 20 foot wide strip, over and across Lot 1, Block 1, NORTHWESTERN 2 "d ADDITION, Anoka County, Minnesota, the centerline of said strip is described as follows: Commencing at the southwest corner of said Lot 1; thence South 89 degrees 36 minutes 31 seconds East, assumed bearing along the south line of said -_ Lot 1, a distance of 40.11 feet to the point of beginning of said centerline to be described; thence North 3 degrees 53 minutes 12 seconds West 89.18 feet; thence North 0 degrees 02 minutes 27 seconds East 233.93 feet; thence South 89 degrees 36 minutes 35 seconds East 95.01 feet to the west line of Jackson Street N.E. and there terminating. The Roadway Easement Area is depicted on Exhibit "C" attached. B) The Roadway Easement Area is for the use of southbound vehicular traffic exiting from Jackson Street only as and for an exit onto 41$` Avenue N.E. 2 C) NEI shall, at its sole cost and expense, maintain, repair or replace the driveway improvements located on the Roadway Easement Area in a condition which is suitable for driveway purposes. 2) Stormwater Drainage Utility Easement. The grant of the drainage utility easements in the Declaration is deleted in its entirety and the following is substituted in its place: A) NEI hereby grants to the City an easement for stormwater drainage over, across, under and through the following described real property (the "Stormwater Easement Area "): That part of Lot 1, Block 1, NORTHWESTERN 2n ADDITION, Anoka County, Minnesota described as follows: Commencing at the southeast corner of Outlot E, said NORTHWESTERN 2nd ADDITION; thence on an assumed bearing of South 0 degrees 23 minutes 22 seconds West along the east line of said Lot 1 a distance of 98.59 feet; thence South 51 degrees 21 minutes 16 seconds West 19.50 feet to the point of beginning of said property to be described; thence North 89 degrees 42 minutes 20 seconds West 48.85 feet; thence North 46 degrees 15 minutes 02 seconds West 104.80 feet; thence North 88 degrees 44 minutes 19 seconds West 65.72 feet; thence South 47 degrees 45 minutes 31 seconds West 68.04 feet; thence on a bearing of South 59.81 feet; thence South 45 degrees 56 minutes 49 seconds East 63.99 feet; thence on a bearing of East 65.70 feet; thence North 54 degrees 56 minutes 21 seconds East 97.72 feet; thence South 89 degrees 42 minutes 20 seconds East 43.48 feet; thence northeasterly to the point of beginning; and That part of Lot 1, Block 1, NORTHWESTERN r ADDITION, Anoka County, Minnesota lying easterly of the following described line: Commencing at the southeast corner of Outlot E, said NORTHWESTERN 2n ADDITION; thence on an assumed bearing of South 00 degrees 23 minutes 22 seconds West along the east line of said Lot 1 a distance of 98.59 feet to the point of beginning of said line to be described; thence South 51 degrees 21 minutes 16 seconds West 24.07 feet; thence South 06 degrees 21 minutes 16 seconds West 104.40 feet to said east line of Lot 1 and there terminating. The Stormwater Easement Area is depicted on Exhibit "D" attached. B) The parties agree that the Stormwater Easement Area provides storage space for stormwater in addition to the stormwater Retention Pond on Outlot B, Northwestern rd Addition. Such additional stormwater storage space is necessary in the event of 100 year storms. The parties agree that it is desirable to replace the Stormwater Easement Area with a larger stormwater retention pond. The stormwater Retention Pond constructed on Outlot B, Northwestern 2nd Addition, holds approximately 0.3 acre feet of stormwater. The Stormwater Easement Area holds approximately 0.7 acre feet of stormwater. Therefore at the present time the total stormwater capacity of the portion of the Drainage Area Map flowing to said Outlot B is approximately 1.0 acre feet. If the Retention Pond on Outlot B is expanded westerly, and a new larger stormwater retention 3 , pond of sufficient size is constructed on Outlots B and C together, the stormwater retention area would increase from approximately 1.0 acre feet as it now exists. Therefore, the parties find that it is feasible to replace the Stormwater Easement Area on Lot 1, Block 1, Northwestern 2n Addition, with a new enlarged stormwater retention pond utilizing the areas in both Outlots B and C, Northwestern 2n Addition. C) All construction plans and specifications for retention pond expansion into said Outlot C shall be submitted by NEI to the City in a form requested or required by the City, and shall be subject to the approval of the City in its sole and reasonable discretion. Such plans shall specify in detail the necessary terms and conditions to replace the Stormwater Easement Area on Lot 1, Block 1, Northwestern 2nd Addition, with an enlarged stormwater retention pond on Outlots B and C combined, Northwestern rd Addition. All work shall be at the sole cost and expense of NEI. D) The City and CHTB agree that if Outlot C, Northwestern r Addition, is excavated and a Stormwater Retention Pond is created thereon pursuant to the above, then the Stormwater Easement Area on Lot 1, Block 1, Northwestern rd Addition, is no longer needed. Upon the completion of the work, the City and CHBT shall release Lot 1, Block 1, Northwestern 2n Addition, from the burden of the stormwater Easement Area hereinabove granted. E) In the event NEI so elects to construct the Retention Pond Expansion, NEI will comply with all governmental regulations and ordinances regarding parking requirements for the NEI real property. F) NEI shall be responsible for maintaining, at its cost, the Stormwater Easement Area at its existing location, or on Outlot C if it is relocated as provided above, in a condition suitable for stormwater drainage purposes. 3) The easements granted herein shall be perpetual and shall run with the land. 4) Except as specifically modified hereby, the Declaration shall continue in full force and effect, enforceable in accordance with its terms. 5) This Amendment to Agreement and Declaration of Covenants and each and every part hereof shall be binding upon the parties hereto, their heirs, representatives, successors and assigns and on future owners of the Premises and shall run with the land. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Agreement and Declaration of Covenants to be executed as of the date and year first above written. (Signature Pages to Follow) 4 , NEI COLLEGE OF TECHNOLOGY, Minnesota nonprofit corporation By: Charles Dettmann Its: President STATE OF MINNESOTA ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of March, 2001 by Charles Dettmann, the President of NEI COLLEGE OF TECHNOLOGY, a nonprofit corporation under the laws of the State of Minnesota, on behalf of the corporation. Notary Public 5 CITY OF COLUMBIA HEIGHTS, MINNESOTA a Minnesota municipal corporation By: Its: Mayor and By: Its: City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA ) The foregoing instrument was acknowledged before me this day of March, 2001, by Gary Peterson, the Mayor, and by Walter R. Fehst, the City Manager, of the CITY OF COLUMBIA HEIGHTS, MINNESOTA, a Minnesota municipal corporation, on behalf of the corporation. Notary Public 6 COLUMBIA HEIGHTS TRANSITION BLOCK, LLC, a Minnesota limited liability company By: Keith S. Jans Its: Treasurer STATE OF MINNESOTA ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of March, 2001 by Keith S. Jans, the Treasurer of COLUMBIA HEIGHTS TRANSITION BLOCK, LLC, a limited liability company under the laws of the State of Minnesota, on behalf of the limited liability company. Notary Public THIS DOCUMENT WAS DRAFTED BY AND WHEN RECORDED RETURN TO: Oppenheimer Wolff & Donnelly LLP (ALD) Plaza VII 45 South Seventh Street, Suite 3300 Minneapolis, Minnesota 55402 7 TC3: 730268 v03 03/04/2001 - �� s 'T�.r sr __ - _ t- - ' Y 7tc. Q Mill .L ' v -het. q � ` 0 COLUMB /A HEIGHTS '- - ---- ` � � �, `, h - }9 � �S ' � r —. — < '------=--n xeA xxl x43 -9Ar 9943 x.l 9943 l! �- �" P z a^ TRANSIT /ON BLOCK ; � ' \ 4 �_ �, < lo! _ 1% '. "� -_ _ R EDEVELOPMENT ill HA i _ -- _ - - i�` ... ` ' _ a• ' -t-t- t= ' :''�L r: "-`asp -=r ' ( ; it � ,�Y!./17:1".` - � d � y ' ,� � --`' i� era 1 I S ` , r I � } r I � � 9�R f! 7 ,; ,1► `' `;;; G r pl s i �4j .. 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T y°' � '-- I I 1 - I ( � � � -- - - i - -- ■ t 0 . ( �l q � i i � i j ^� ° c � i i ' �� ° � c I I fir ¢t \ \\ a ll 1 /o I II O I o I / \i C -1.42 1 ,� \ \l�,� V^�� - �1 ■ 1 114 ;-, A 0 \ f �� G I w � ;,I3 r —, -- I Ho ___ \ 1° Al Q 1 .....,... r 01.0'01 c. ' e ... 6" EXHIBIT "C" NORTHWESTERN 2ND ADDITI 1 1 1 1 1 ::"; - 1 _ , I1 I I :: t I r k i I I' .:I I a.. I- -•1 6 - J14 .o - _ o ~ • North line of Lot 1 ; Bioek 2, N.A. _- U.S. _,.�. W. ��� E 563.74 - per Do. - _ - S89 °36'38' 60 r r 200.35 F4^ I_ 86.64 ' 26.05 :� 127.73 -- � 20 14 , ' _ _ ' • • 3 4 . 02 52"W ?) • r w 25. �6�6 n 31 270.70- Y Li; COLUMBIA i ? =_1 1 n u ` r i OUTLO E a� . + h N I "' s89.36'38 -E •• _.... ..... . � � • - •- ::r:sr TO :. 4 ° N 1 l 0 1 E, Drai nage and tQ I n f•.•,, - r•• •• A�'•••-1� I , ; 8 85.00 N Utility Easement �' ;, „;; •. } - }1 •,,,-:y, , MINN. '38"E 24 ' ''I 1 f ' Drainage and Utility 1 ul .,,,. I111 S89'36 w . vs `� ii: I" Easement over all •- ru I of : v , • 13 of Oatiot Da, S ' , I . I IL �m g I , _ _ 131.96 j .......2....0.4.1==> - RIYL'_ �„ 1 -- ,. m N ``s OUTLOT N 1 D `. ' NBwiY6 .., °o 589'36 - E 120.28 8) 0• + 14 line of " 1 24.00 85.65 f05 n a � pare n 3: 'o V fo s . line of Lc N ' ° N N -6 :1 ita .i „� o N Drainage and ° Utnity s Z ° o N N oR " Easement over 3 -, dl of d ri ` t- Z .4.4: ° N Outiots 6 and, E„ C F j ��•, N C O 1 - �: O UTLOT C i; N R m� _ 2 4 0 I N • 589 129.01 60 86 O 66.61 3 ` 36'38 "E 152.95 1 Y- ° • - -47.03 -' °I., }- .... •-- Drainages •, and .o o ' 4, " ' fo ***��� r A•_ / / o 78`46 Si N Utnit ', �� ` ti 1v17.48 1 /t) ; , .".... „ � � 6 •6 CP h e b Ut p D j y and , ° ° lo 0 IO Doc N• 8271. 5 8 0.00' went N �1•• m S89.36'3 A. '�+` _ as M Doc.' , �i - -J7o 60.00 `'� �'�a - ?A ' '/ _ ' ?465 76 46 - I aN ,.„ of ►�° � � - 1 11 r � � \ �s� - `;7� # oI 35 I n o ril P 1 � ro 1 i $60.02' J •[b • >,o I a `: N 35: J 1 h n • t`. 1 L ~� ilA1 `= o I ` 5 89 . 36'32 "E of d • • 1 i �;; y -I- ;� I N B � r ', I e a i 13 m E I In eI fy y 8 0 ° .n 20 LI T1 I 5 1 .� a• I F,31 ° • m e-: 0 �0 1 ml t „. 01 F4 1 1 .0 1.0 OWp la 4 N z ' w � , m IO 1 1 aW • M la N $ I r F 1 ci o , ` oc • �« W I o 1 20 8 i 1 a, , du i Z . D N . a ,- 1 1 5151 ' I • ! Z 1.. 10.00 160.03 J v1 / ' -'• • II ; • 25 ' Drain�e UtilitLEaaement _ s•'' 589 158.57 �.c •7 °r / 1 I [ {, I 1 ' . \ �°� �� 076 °57 , lm e �ti°' I 11 �, _ tto_9o_j { - - - 167.44 - 6 %'q• o . 1g 5-1 6297 - _. w • L , . ''' 19 • _ .7•. e•ofi s€ : _ � se � -_ Ai 1 1 hI • \ 0 129.77 25.00) - 156.90 L 421.87 _ ..> 14 _ -_ '503.5 "'. N89'36'31'W 603.74 - o ,. T _ --South line of Northwestern Addition 'a 41ST s : f °a t' : : i'1 ti �- i•I `. 0 ID � -_ � 60 f r____ -11 4r____� 60 r - - -- 14 - I _ l tl I t- I 1 a 1 -1 1 1 II I -; f -- I , I ► - -, 11 1 1 I •, I . " g •S 11• EXHIBIT "D" NORTHWESTERN 2ND ADDM 11 1 4,1 .. I 11 • I 1 2: 11 1 I 11 11 1 i:.; -- , In 1-- I LI 1 =r: I 11 1i-'-i1 1 i.i 119 , .:.;:-.~..- ::: LI: tli --f . i -• 1-..:1 :...•.• 1 --- ... 1 11 --, ..• ,..., ...-. ..„ _ __,,_ __I - - _ --, I .-- 60 VI I____ 1141_ f-- I -] :.;. 60 ::: i___ __1,4L _ - - - - - - • .er-o." gr.- 4 2 isiE) . . p. v t: :s: :: t: ... .• o to 0 ...North line of Lot 1, Block 2, N.A. U.S. W S8936 583.74 ; 9313.2322 .e" per Do - --1 - - ___, 141 60 r Z.s. 200.35 88.64 /I 26.05 T.1 127.73 b_- 1 cl F T: 3 _..,..5 --- _l_ sg4 -16' r' -- 270.70 .... . N 25.60 1...4...... t cz. Is. c 00 I .... c: ..s • ...-.......1::1 el I• Li; 1 ...0tnnol... r::::::::-:::.; l' ,1.1 OUTLOT E cml •. 589 38 :i• l'InIU:11=n '36 - 1 1. 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I L III ...s .. 1 1 '-' to I-JI :, .e „, LL ...- • LI 1- ..1 I I :11 I .3:1 . .,`t-V• . ' I i iii I -*: I I .• - , at to 4: I I I , ....1.,,`. • -3.: f.::: I: 1 ;1 I 11 , , . • EXHIBIT F PARKING ORDINANCE Ordinance 1426 : eing an Ordinance Designating Permit Parking Only From 7:00 A.M. to 3:00 P.M., Monday through Friday, Except Holidays on 41st Avenue N.E. and Jackson Street N.E. Adjacent to 825 41st Avenue N.E. See Attached F -1 TC3: 731506 v02 03/04/2001 ORDINANCE 1426 BEING AN ORDINANCE DESIGNATING PERMIT PARKING ONLY FROM 7:00 A.M. TO 3:00 P.M., MONDAY THROUGH FRIDAY, EXCEPT HOLIDAYS ON 41 AVENUE N.E. AND JACKSON STREET N.E. ADJACENT TO 825 41 AVENUE N.E. (N.E.I. COLLEGE OF TECHNOLOGY). The City of Columbia Heights does ordain: Section 11: Parking shall be designated by permit parking only, 7:00 A.M. to 3:00 P.M., Monday through Friday, except holidays, on the north side of 41 Avenue N.E. from Quincy Street N.E. to the alley west of Central Avenue N.E. consisting of eighteen (18) parallel parking spaces, on the south side of 41 Avenue N.E. from Jackson Street N.E. to the alley west of Central Avenue N.E. consisting of fifteen (15) parallel parking spaces, and on the east side of Jackson Street N.E. south of 42 Avenue N.E. consisting of eleven (11) parking spaces. Section 2: The provisions of the Columbia Heights City Code, Section 7.205 (1) which reads "No person shall park a vehicle in his custody or control in any one place upon any street or roadway for a continuous period longer than six (6) hours..." shall not be applicable during the hours of 7:00 A.M. to 3:00 P.M., Monday through Friday, except holidays, on the north and south sides of 41 Avenue N.E. between Quincy Street N.E. and the alley west of Central Avenue N.E. and the east side of Jackson Street N.E. south of 42 Avenue N.E. Section 3: This Ordinance shall be in full force and effect from and after thirty (30) days after its passage. First Reading: November 13, 2000 Second Reading: November 27, 2000 Date of Passage: November 27, 2000 Offered by: Hunter Seconded by: Szurek Roll Call: Szurek — nay, Jolly — aye, Wyckoff— nay, Hunter — aye, Peterson — aye. Aye — 3, Nay — 2. Motion carried. di 11W - - ayor Gary ! . Peterson (A A/ 4.4.-.0— 1 �- WI-4 .rte Patricia Muscovitz, Deputy Ci' Clerk ® PRELIMINARY DEVELOPMENT AGREEMENT THIS AGREEMENT is made as of the / % nay of 0 u r , 2000 by and among the City of Columbia Heights, Minnesota, a municipal corporation under the laws of Minnesota (the "City"), the Columbia Heights Economic Development Authority, a body corporate and politic (the "Authority") Columbia Heights Transition Block LLC, a Minnesota limited liability company (the 'Developer"). WITNESSETH: WHEREAS, the City and the Authority have determined that: (i) the Developer has proposed a project to redevelop certain blighted property within the City; (ii) there is a need to alleviate a shortage of decent, safe and sanitary housing for persons aged 62 and older and other persons of low or moderate income in the City; and (iii) it is appropriate in this connection to envision the creation of one or more tax increment financing districts within the City pursuant to Minnesota Statutes, Sections 469.174 to 469.179; and WHEREAS, the City and the Authority have determined to address such blight and shortage in part through redevelopment of certain property within the City and the facilitation of the development of housing for low and moderate income persons as further described herein; WHEREAS, in order to achieve their objectives as described herein, the parties hereto are • prepared to pay certain development costs and undertake certain activities in order to bring about redevelopment of blighted property and development of housing for persons of low or moderate income; WHEREAS, the City and the Authority believe that the fulfillment generally of this Agreement is in the vital and best interests of the Authority and the City, and the health, safety, morals, and welfare of its residents, and in accord with the public purposes and provisions of the applicable State and local laws and requirements under which the development intended hereunder will be undertaken and is being assisted; and WHEREAS, the Developer desires to acquire title to certain real property within the City, to be transferred to separate parties designated herein for the purpose of developing and constructing a senior housing assisted living residential facility (the "Senior Housing Project ") and a rental housing multi- family residential facility (the "Rental Housing Project "). NOW, THEREFORE, in consideration of the mutual covenants and obligations of the City, the Authority and the Developer, each party does hereby represent, covenant and agree with the other as follows: i D!G- 178166v7 l CL205 -11 • ARTICLE I Definitions Section 1.1. In this Agreement, unless a different meaning clearly appears from the context: "Agreement" means this Agreement, as the same may be from time to . time modified, amended, or supplemented. "Authority" means the Columbia Heights Economic Development Authority. "Bond Documents" means, collectively, the documents entered into by any or all of the parties hereto in connection with issuance of the Bonds. "Bonds" means the tax- exempt 501(c)(3) bonds expected to be issued by the City to assist in financing the Senior Housing Project. "City" means the City of Columbia Heights, Minnesota. "Closing Date" means, with respect to the Senior Housing Project, the date of the issuance of the Senior Housing Note, and with respect to the Rental Housing Project, the date of issuance of • the Rental Housing Note. "Concept Plan" means the plans, descriptions, and other materials set forth at Exhibit A hereto and pertaining to the Rental Housing Project and the Senior Housing Project. "Construction Plans" means 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 City, and (b) shall include at least the following: (1) site plan; (2) landscape plan; and (3) such other plans or supplements to the foregoing plans as the City may reasonably request to allow it to ascertain the nature and quality of the proposed construction work and that are available to the Developer at a reasonable cost. The Construction Plans for any building to be constructed on the Property shall additionally include 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). "Crest View" means Crest View Corporation, a Minnesota nonprofit corporation, or its permitted successors and assigns. "Crest View Advanced Missions I, LLC" means Crest View Advanced Missions I, LLC, a Colorado limited liability company which is a member of Crest View ONDC I and of which Crest View Corporation is the single member. • • DJG- 178166v7 2 CL205 -11 • "Crest View ONDC r means Crest View ONDC I, a Minnesota nonprofit corporation qualifying as an organization described within Section 501(c)(3) of the Internal Revenue Code of 1986, which has as its sole members Crest View Advanced Missions I, LLC and ONDC. "County" means the County of Anoka, Minnesota. "Definitive Development Agreements" means the final contracts for private development to be entered into pursuant to Section 3.1(i) among the City, the Authority and the Rental Housing Owner with respect to the Rental Housing Project and among the City, the Authority and the Senior Housing Owner with respect to the Senior Housing Project. "Developer" means Columbia Heights Transition Block LLC, a Minnesota limited liability company, or its permitted successors and assigns. "Event of Default" means an action by the Developer listed in Article IX of this Agreement. "Holder" means the owner of a Mortgage. "Material" means any effect or change which significantly alters the intended use of the Property, or increases or decreases the costs of any individual item of the Minimum Improvements by more than $100,000. • "Maturity Date" means the date that the Notes have both been paid in full or have otherwise :been terminated according to their terms. "Minimum Improvements" means the construction on the Property of the Rental Housing Project and the Senior Housing Project. "Mortgage" means any mortgage made by the Rental Housing Owner or the Senior Housing Owner which is secured, in whole or in part, with the portion of the Property owned by such party and which is a permitted encumbrance pursuant to the provisions of Article VIII of this Agreement. "NEr" means NEI College of Technology, a Minnesota nonprofit corporation, which is the seller of the Property and the owner of real property adjacent to the Property. "ONDC" means Opportunity Neighborhood Development Corporation, a Minnesota nonprofit corporation. "Parcel 1" means the real property on which the Rental Housing Project will be constructed as shown generally on the Concept Plan. "Parcel 2 means the real property on which the Senior Housing Project will be constructed as shown generally on the Concept Plan. "Planned Unit Development Agreement" means the agreement of such name to be entered • into by and among the City, the Rental Housing Owner, the Senior Housing Owner, and NEI DIG- 178166v7 3 CL205 -11 • pertaining to granting of the appropriate permits and authorizations necessary to provide for a planned unit development project. "Property" means Parcel 1 and Parcel 2, collectively. "Rental Housing Note" means a Tax Increment Revenue Note to be delivered by the Authority to the Rental Housing Owner for the purpose of assisting in financing the Rental Housing Project, such note expected to have a term of 21 years and commit to payments by the Authority to the Rental Housing Owner of 89.75% of the Tax Increment generated by the Rental Housing Project and received by the Authority. "Rental Housing Owner" means Columbia Heights Housing Limited Partnership I, a Minnesota limited partnership, or its permitted successors and assigns. "Rental Housing Project" means the construction on Parcel 1 of a 22 -unit affordable rental complex that: (i) meets all the requirements for a low- income tax credit under Section 42 of the Internal Revenue Code of 1986, as amended through the date of this Agreement; and (ii) otherwise complies with the requirements pertaining thereto as set forth in this Agreement, the Planned Unit Development Agreement, and the Definitive Development Agreements. "Senior Housing Note" means a Tax Increment Revenue Note to be delivered by the Authority to the Senior Housing Owner for the purpose of assisting in financing the Senior Housing • Project, such note expected to have a term of 21 years and commit to payments by the Authority to _ the Senior Housing Owner 89.75% of the Tax Increment generated by the Senior Housing Project and received by the Authority. "Senior Housing Owner" means Crest View ONDC I, or, on an interim basis, pending receipt of a determination letter from the Internal Revenue Service regarding the tax- exempt status of Crest View ONDC I and/or Crest View Advanced Missions I, LLC. "Senior Housing Project" means the construction on Parcel 2 of a 50 -unit senior rental housing facility that complies with the requirements .pertaining thereto as set forth in the Bond Documents, this Agreement, the Planned Unit Development Agreement, and the Definitive Development Agreements. "State" means the State of Minnesota. "Tax Increment" means that portion of the real property taxes which is paid with respect to the TIF District and which is remitted to the Authority as tax increment pursuant to the Tax Increment Act. "Tax Increment Act" or "TIF Act" means the Tax Increment Financing Act, Minnesota Statutes, Sections 469.174 to 469.179, as amended. 40 DJG- 178166v7 4 CL205 -11 "Tax Increment District" or "TIF District" means the one or more tax increment fmancing districts expected to be created by Authority to assist in fmancing construction of the Minimum Improvements. "Tax Increment Plan" or "TIF Plan" means the Authority's tax increment financing plan or plans, as the case may be, for the TIF District, as it or they may be amended. "Tax Official" means any County assessor, County auditor, County or State board of equalization, the commissioner of revenue of the State, or any State or federal district court, the tax court of the State, or the State Supreme Court. "Unavoidable Delays" means delays 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 in exercising its rights under this Agreement) which directly result in delays. • • DJG- 178166v7 5 CL205 -I1 • ARTICLE II • • Representations and Warranties Section 2.1. Representations by the City. The City makes the following representations as the basis for the undertaking on its part herein contained: (a) The City has the power to enter into this Agreement and carry out its obligations hereunder. (b) The activities of the City are undertaken to redevelop blighted property within the City and facilitate the creation of housing opportunities for persons aged 62 and older and other • persons of low and moderate income. Section 2.2. Representations by the Authority. The Authority represents and warrants that: (a) The Authority has the power to enter into this Agreement and carry out its obligations hereunder. (b) The activities of the Authority are undertaken to redevelop blighted property within the City and facilitate the creation of housing opportunities for persons aged 62 and over and other • persons of low and moderate income. Section 2.3. Representations and Warranties by Developer. Developer represents and warrants that: (a) Developer is a limited liability company in good standing under the laws of Minnesota and has power to enter into this Agreement. (b) Developer has received no notice or communication from any local, State, or federal official that the activities of the Developer, the City, the Authority, the Rental Housing Owner or the Senior Housing Owner pursuant to or envisioned by this Agreement may be or will be in violation of any environmental law or regulation. Developer is aware of no facts the existence of which would cause the Developer, the Rental Housing Owner or the Senior Housing Owner to be in violation of or give any person a valid claim under any local, State, or federal environmental law, regulation, or review procedure. (c) 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 Developer is now a party or by which it is bound, or constitutes a default under any of the foregoing. • DJG- 178166v7 • 6 CL205 -11 • (d) The development of the Minimum Improvements would not occur but for the tax increment financing assistance being provided hereunder. 111 • DJG- 178166v7 7 Cl205 -11 ARTICLE III Public Assistance and Other Undertakings Section 3.1. Undertakings of the Parties. In order to make development of the Minimum Improvements economically feasible, the parties to this Agreement expect to undertake certain activities, which may include, but not necessarily be limited to, the following: (a) On or prior to the Closing Date for the Rental Housing Project, the Developer shall transfer fee ownership of Parcel 1 to the Rental Housing Owner and the Rental Housing Owner shall enter into the Defmitive Development Agreement with the City and the Authority pursuant to which the Rental Housing Owner assumes all obligations of the Developer hereunder relating to the Rental Housing Project. On or prior to the Closing Date for the Senior Housing Project, the Developer shall acquire and transfer fee ownership of Parcel 2 to the Senior Housing Owner and the Senior Housing Owner shall enter into the Definitive Development Agreement with the City and the Authority pursuant to which the Senior Housing Owner assumes all obligations of the Developer hereunder relating to the Senior Housing Project. • (b) The Developer shall cause the Rental Housing Owner and the Senior Housing Owner to undertake construction of the Minimum Improvements in substantially the form shown in the Concept Plan. • • (c) The City and the Authority shall take such steps as are required to review: (i) vacation of an existing alley; (ii) relocation of a an existing storm drainage pond and easement, (iii) the Planned Unit Development Agreement; and (iv) such other requests for replatting, lot splits, parking, financing, variances, rezoning, and related items as may be deemed necessary or desirable for construction of the Minimum Improvements. (d) The City or the Authority shall design, fmance, and construct parking improvements and enter into agreements necessary to facilitate the Developer's execution and performance of a purchase agreement with NEI, such purchase agreement to be for the purpose of acquiring property necessary for the construction of the Minimum Improvements. (e) The City or the Authority shall cooperate with the Developer in acquiring other property necessary for the construction of the Minimum Improvements to the extent that such property is currently owned by third - parties, provided that the Developer shall be responsible for all costs of such acquisition, whether incurred by the Developer, the City, or the Authority, and provided further that the City or the Authority may undertake condemnation proceedings if either or both decide in their respective sole discretion that doing so will appropriately facilitate construction of the Minimum Improvements. (f) The City or the Authority shall acquire from the owner or, if it becomes the owner, the Developer, the real property parcel located immediately adjacent to the Property with the street address of 4157 Jackson Street, Columbia Heights, Minnesota, and shall move the existing single- • DJG- 178166v7 8 CL205 -II • family . house thereon to a location within the City, such site to be determined in the sole discretion of the City or the Authority. (g) The City or the Authority shall undertake green space improvements adjacent to the Property, such improvements as to be determined to the mutual satisfaction of the parties to this Agreement and as generally shown in the Concept Plan. (h) The Authority shall, for consideration of $1.00, convey to the Developer, or to the Rental Housing Owner or the Senior Housing Owner, as determined by the Developer, certain property owned by the Authority as of the date of this Agreement and necessary for the construction of the Minimum Improvements, as generally described in the Concept Plan. (i) The Authority shall enter into Definitive Development Agreements with the Senior Housing Owner and the Rental Housing Owner pursuant to which the Authority will issue the Senior Housing Note and the Rental Housing Note or otherwise undertake tax increment financing assistance to the Senior Housing Project and the Rental Housing Project, and all parties hereto shall undertake such other related actions as are necessary to create the related TIF District. (j) The City or the Authority shall issue conduit 501(c)(3) bonds and loan the net proceeds thereof to the Senior Housing Owner pursuant the terms of a loan agreement with the Senior Housing Owner and other necessary or desirable bond documents, for the purpose of financing the construction of the Senior Housing Project, and the Senior Housing Owner and the • City or the Authority shall each undertake all necessary or desirable related actions. (k) The parties hereto shall enter into such other agreements as may be necessary or desirable, including but not limited to agreements pertaining to the use of HOME, CDBG, LCA, and MHOP funds. Section 3.2. Payment of Administrative Costs. The Developer agrees to pay all costs incurred by the City and the Authority in the preparation, review, and approval of this Agreement and any other agreement, resolution, financial calculation, engineering review, document, review, or process prepared or undertaken pursuant to or arising out of this Agreement (the "Administrative Costs "). Prior to or immediately upon the execution of this Agreement by the City and the Authority, the Developer shall pay to the Authority the amount of $10,000, such amount to be applied to Administrative Costs. The Developer shall further from time to time pay, or cause the Rental Housing Owner or the Senior Housing Owner, as the case may be, to pay, to the City and the Authority, within ten (10) days of request for such payment by the City or the Authority, any amount by which the Administrative Costs exceed $10,000 and for which the City or the Authority have not been previously reimbursed. The Developer acknowledges and agrees that time is of the essence with regard to this Section 3.2 and that the obligations of the City and the Authority hereunder are expressly contingent on the Developer's compliance with the terms of this Section 3.2. The provisions of this Section 3.2 shall survive termination of this Agreement. Section 3.3. Soil Conditions. The Developer acknowledges that neither the City nor the • Authority make any representations or warranties as to the condition of the soils on the Property or any other parcel of land or its fitness for construction of the Minimum Improvements or any other DIG- 178166v7 9 C1205 -11 • • purpose for which the Developer may make use of the Property or such parcel. The Developer further agrees that it will indemnify, defend, and hold harmless the City, and its governing body members, officers, and employees, from any claims or actions arising out of the presence, if any, of hazardous wastes or pollutants on the Property. The provisions of this Section 3.3 shall survive termination of this Agreement. Section 3.4. Necessity for Final Agreement; Relationship of Parties. (a) It is the intention of the parties to this Agreement that this Agreement be construed as an agreement to negotiate in good faith regarding the terms and conditions of one or more final agreements to be entered into by or among the parties and setting forth the complete understanding of the parties regarding the Minimum Improvements, the Planned Unit Development Agreement, and all other undertakings related to them; provided, however, that each party to this Agreement shall have the sole and absolute discretion to accept or reject any such final agreements on any terms such party deems desirable. (b) Notwithstanding anything to the contrary herein, if the City, the Authority, or both have not, by no later than June 30, 2001, entered into one or more Definitive Development Agreements with the Rental Housing Owner and the Senior Housing Owner that expressly supercede this Agreement, this Agreement shall automatically terminate. In addition to the foregoing, any party to this Agreement may at any time and for any reason or no reason immediately terminate this Agreement upon providing notice to the other parties as provided herein. • (c) In no case, shall this Agreement be construed as creating any joint venture or partnership between the City or the Authority and any other person. • • • DJG- 178166v7 1 0 CL205 -t1 ARTICLE IV Construction of Minimum Improvements Section 4.1. Construction of Minimum Improvements. (a) The Developer will cause the Rental Housing Owner and the Senior Housing Owner to construct the Minimum Improvements on the Property in accordance with the Construction Plans. At all times prior to the Maturity Date, the Developer will cause the Rental Housing Owner and the Senior Housing Owner to operate and maintain, 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. Neither the City nor the Authority shall have any obligation to operate or maintain the Minimum Improvements. . (b) The Developer will cause the Rental Housing Owner and the Senior Housing Owner to construct the Minimum Improvements in accordance with all local, State, and federal energy- • conservation laws or regulations. (c) The Developer will obtain, or cause the Rental Housing Owner and the Senior Housing Owner 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 are required to be obtained or met before the Minimum Improvements can be • lawfully constructed, including, without limitation, the requirements of any necessary special use _ (d) The Developer shall promptly advise the City and the Authority, or cause the Rental Housing Owner and the Senior Housing Owner to promptly advise the City and 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 Minimum Improvements or materially affecting the Developer, the Rental Housing Owner, the Senior Housing Owner, or their businesses which may require changes in construction of the Minimum Improvements. Section 4.2. Construction Plans. (a) Before beginning construction of the Minimum Improvements, the Developer shall submit, or cause the Rental Housing Owner and the Senior Housing Owner to submit, Construction Plans to the City and the Authority. The Construction Plans shall provide for the construction of the Minimum Improvements and shall be in conformity with the Bond Documents, this Agreement, the Planned Unit Development Agreement, the Definitive Development Agreements and all applicable State and local laws and regulations. The City and the Authority will approve the Construction Plans in writing if: (i) the Construction Plans conform to the terms and conditions of this Agreement and the Planned Unit Development Agreement; (ii) the Construction Plans conform to the goals and objectives of the Development Plan; (iii) the Construction Plans conform to all applicable federal, state and local laws, ordinances, rules and regulations; (iv) the Construction Plans are adequate to provide for construction of the Minimum Improvements;. (v) the Construction Plans do not provide for expenditures in excess of ID the funds available to the respective owner for construction of the Minimum Improvements; and (vi) DJG- 178166v7 1 1 CL205 -1 1 4111 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 City or the Authority shall relieve the Developer, the Rental Housing Owner or the Senior Housing Owner of the obligation to comply with the terms of this Agreement, the Definitive Development Agreement to which any such person is a party, or of the Development Plan or of the Planned Unit Development Agreement, applicable federal, state and local laws, ordinances, rules and regulations, or to construct the Minimum Improvements in accordance therewith. No approval by the City or the Authority shall constitute a waiver of an Event of Default hereunder or under the respective Definitive Development Agreement. If approval of the Construction Plans is requested by the Developer, the Rental Housing Owner or the Senior Housing Owner in writing at the time of submission, such Construction Plans shall be deemed approved unless rejected in writing bythe City or the Authority, in whole or in part. Such rejections shall set forth in detail the reasons therefore, and shall be made within fourteen (14) days after the date of their receipt by the City and the Authority. If the City or the Authority rejects any Construction Plans in whole or in part, the Developer shall submit or shall cause the Rental Housing Owner or the Senior Housing Owner to submit new or corrected Construction Plans within fourteen (14) days after written notification to the Developer of the rejection. The provisions of this Section relating to. approval, rejection and resubmission of corrected Construction Plans shall continue to apply until the Construction Plans have been approved by the City and the Authority. Said approval shall constitute a conclusive determination that the Construction Plans (and the Minimum Improvements constructed in accordance with said plans) comply to the City's and 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 Plans after their approval by the City and the Authority, the Developer shall submit or shall cause the Rental Housing Owner or the Senior Housing Owner to submit the proposed change to the City and the Authority for their approval. If the Construction Plans, as modified by the proposed change, conform to the requirements of this Section 4.2 of this Agreement with respect to such previously approved Construction Plans, the City and 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 City and the Authority unless rejected, in whole or in part, by written notice by the City or the Authority to the Developer or the submitting party, setting forth in detail the reasons therefor. Such rejection shall be made within ten (10) days after receipt of the notice of such change. Section 4.3. Commencement and Completion of Construction. The Developer shall complete or shall cause the Rental Housing Owner or the Senior Housing Owner to complete the construction of the Minimum Improvements within eighteen (18) months of the respective Closing Date. All work with respect to the Minimum Improvements to be constructed or provided by the Developer or the Rental Housing Owner or the Senior Housing Owner, as the case may be, on the Property shall be in conformity with the Construction Plans. Section 4.4. Certificate of Completion. (a) Promptly after substantial completion of the Minimum Improvements in accordance with those provisions of the respective Definitive Development Agreements relating solely to the obligations of the Developer, or the Rental Housing • Owner or the Senior Housing Owner, as the case may be, to construct the Minimum Improvements DJG- 178166v7 12 CL205 -11 • (including the dates for beginning and completion thereof), the Authority will furnish the Developer and either the Rental Housing Owner or the Senior Housing Owner, as the case may be, with a certificate evidencing the conclusive determination of satisfaction and termination of the agreements and covenants in this Agreement and the respective Definitive Development Agreements with respect to the obligations of the Developer, the Rental Housing Owner or the Senior Housing Owner, and their successors and assigns, to construct the Minimum Improvements 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, the Rental Housing Owner or the Senior Housing Owner to any Holder of a Mortgage, or any insurer of a Mortgage, securing money loaned to finance the Minimum Improvements, or any part thereof. (b) If the Authority shall refuse or fail to provide any certification in accordance with the provisions of this Section 4.4, the City shall, within thirty (30) days after written request by the Developer, the Rental Housing Owner or the Senior Housing Owner, provide the requesting party with a written statement, indicating in adequate detail in what respects the Developer or such other requesting party 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 or such other requesting party 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 Developer or the Rental Housing Owner or the Senior Housing Owner, as the • case may be, has received an occupying permit from the responsible inspecting authority for all residential units, common areas, and other portions of the Minimum Improvements. DJG- 178166v7 1 3 CL205 -11 • ARTICLE V Insurance 5.1. Insurance. (a) Upon commencement of construction and continuing until at least the Maturity Date, the Developer shall maintain, or cause to be maintained, at its cost and expense, and from time to time at the request of the Authority shall furnish proof of the payment of premiums on, insurance as follows: (i) Insurance against loss and/or damage to the Minimum Improvements under a policy or policies covering such risks as are ordinarily insured against by similar businesses; (ii) Comprehensive general public liability insurance, including personal injury liability (with employee exclusion deleted), against liability for injuries to persons and/or property, in the minimum amount for each occurrence and for each year of $1,000,000, and shall be endorsed to show the Authority as additional insured; and (iii) Such other insurance, including workers' compensation insurance respecting all employees of the Developer, or the owner of such Project, in such amount as is customarily carried by like organizations engaged in like activities of comparable size and • liability exposure. • (b) All insurance required in this Article V shall be taken out and maintained in responsible insurance companies selected by the Developer which are authorized under the laws of the State to assume the risks covered thereby. Upon request, the Developer will deposit or will cause the Rental Housing Owner or the Senior Housing Owner to deposit annually with the Authority policies evidencing all such insurance, or a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Article V of this Agreement, each policy shall contain a provision that the insurer shall not cancel nor modify it in such a way as to reduce the coverage provided below the amounts required herein without giving written notice to the City and the Authority at least thirty (30) days before the cancellation or modification becomes effective. In lieu of separate policies, the Developer may maintain or cause the Rental Housing Owner or the Senior Housing Owner to maintain a single policy, blanket or umbrella policies, or a combination thereof, having the coverage required herein, in which event the Developer shall deposit or shall cause the Rental Housing Owner or the Senior Housing Owner, as the case may be, to deposit with the Authority a certificate or certificates of the respective insurers as to the amount of coverage in force upon the Minimum Improvements. (d) The Developer agrees to notify, or cause the Rental Housing Owner or the Senior Housing Owner, as the case may be, to notify the Authority immediately in the case of damage exceeding $100,000 in amount to, or destruction of, the Minimum Improvements, or any portion thereof resulting from fire or other casualty. In such event the Developer . will forthwith repair, reconstruct, and restore, or cause the Rental Housing Owner or the Senior Housing Owner to repair, • reconstruct, and restore, the Minimum Improvements to substantially the same or an improved D1C- 178166v7 14 CL205 -11 ID condition or value as it existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction, and restoration, the Developer will apply,, or will cause the Rental Housing Owner or the Senior Housing Owner, as the case may be, to apply, the net proceeds of any insurance relating to such damage received to the payment or reimbursement of the costs thereof. The Developer shall complete, or cause the Rental Housing Owner or the Senior Housing Owner, to complete, the repair, reconstruction, and restoration of the Minimum Improvements, whether or not the net proceeds of insurance received by any such party for such purposes are sufficient to pay for the same. Any net proceeds remaining after completion of such repairs, construction and restoration shall be the property of primary insured party. (e) The parties hereto agree that all of the provisions set forth in this Article V shall terminate upon the Maturity Date. • • • DJG- 178166v7 1 5 CL205- I 1 • ARTICLE VI Use of Tax Increment Section 6.1. Use of Tax Increments. Except for their obligations under this Agreement, the Senior Housing Note, and the Rental Housing Note regarding Tax Increment, the Authority and the City shall be free to use any Tax Increment received from the Property for any purpose for which such Tax Increment may lawfully be used, and neither the Authority nor the City shall have any obligation to the Developer, the Rental Housing Owner or the Senior Housing Owner with respect to the use of such Tax Increment. • • • DJG- 178166v7 1 6 CL205 -11 • ARTICLE VII Financing Section 7.1. Mortgage Financing. (a) Before commencement of construction of the Minimum Improvements, the Developer shall submit, or shall cause the Rental Housing Owner or the Senior Housing Owner to submit, to the City and the Authority evidence of one or more commitments or defmitive agreements providing for mortgage fmancing which, together with committed equity for such construction, is sufficient for the acquisition of the Property, platting, construction of the public improvements in connection with the plat, and undertaking the Minimum Improvements. Such commitments may be submitted as short term financing, long term mortgage financing, a bridge loan with a long term take -out fmancing commitment, or any combination of the foregoing. Such commitment or commitments for short term or long term mortgage financing shall • be subject only to such conditions as are normal and customary in the mortgage banking industry. (b) If the City and the Authority find that the mortgage financing is sufficiently committed and adequate in amount to provide for the construction of the Minimum Improvements then the City and the Authority shall notify the Developer in writing of its approval. Such approval shall not be unreasonably withheld and either approval or rejection shall be given within thirty (30) days from the date when the City and the Authority are provided the evidence of mortgage financing. A failure by the City or the Authority to'respond to such evidence of mortgage fmancing • shall be deemed to constitute an approval hereunder. If the City or the Authority reject the evidence of mortgage financing as inadequate, they shall do so in writing specifying the basis for the rejection. In any event the Developer shall submit adequate evidence of mortgage financing within thirty (30) days after such rejection. Section 7.2. Option to Cure Default on Mortgage. In the event that there occurs a default under any Mortgage authorized pursuant to this Agreement, the Developer shall cause the City and the Authority to receive copies of any notice of default received by the Developer from the holder of such Mortgage. Thereafter, the City and the Authority shall have the right, but not the obligation, to cure any such default on behalf of the Developer within such cure periods as are available to the Developer or the Rental Housing Owner or the Senior Housing Owner, as the case may be, under the Mortgage documents. • DJG- 178166v7 17 C1.205-11 • ARTICLE VIII Prohibitions Against Assignment and Transfer; Indemnification Section 8.1. Representation as to Development. The Developer represents and agrees that its undertakings pursuant to this Agreement are for the purpose of development of the Property. Section 8.2. Release and Indemnification Covenants. (a) Except for any willful misrepresentation or any willful or wanton misconduct or negligence of the following named parties, the Developer agrees, and shall cause the Rental Housing Owner and the Senior Housing Owner to agree, to protect and defend the City, the Authority, and their governing body members, officers, agents, servants, and employees, now or forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit, action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising from this Agreement, or the transactions contemplated hereby or the acquisition, construction, installation, ownership, and operation of the Minimum Improvements. (b) Except for any negligent act of the following named parties, the City, the Authority, and their governing body members, officers, agents, servants, and employees shall not be liable for any damage or injury to the persons or property of the Developer, the Rental Housing Owner or the Senior Housing Owner or their partners, officers, agents, servants, employees, or to any other • person who may be about the Property or Minimum Improvements. (c) All covenants, stipulations, promises, agreements, and obligations of the City or the Authority contained herein shall be deemed to be the covenants, stipulations, promises, agreements, and obligations of the City and the Authority, respectively, and not of any governing body member, officer, agent, servant, or employee of the City or the Authority in the individual capacity thereof. (d) The provisions of this Section 8.2 shall survive termination of this Agreement. Section 8.3. No Assignment by Developer. The Developer acknowledges and agrees that the City and the Authority are entering into this Agreement in express reliance on the identity of the Developer and that neither the Developer's rights nor its obligations pursuant to this Agreement may be assigned, sold, hypothecated, pledged, or otherwise transferred to any party other than the Rental Housing Owner or the Senior Housing Owner without the express written consent of both the City and the Authority. DJG- 178166v7 1 8 CL20S -11 • ARTICLE IX Events of Default Section 9.1. 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, or under the Planned Unit Development Agreement or the Bond Documents, provided that when such failure or breach does not involve the payment of money to the City or the Authority such failure or breach shall not constitute an "Event of Default" if corrective action is instituted by or on behalf of such party within such thirty (30) day period and diligently pursued until the earlier of the date such default is corrected or one hundred eighty (180) days has elapsed. Nothing in this Article DC shall limit the City's rights to exercise any remedy to which it is entitled under any other provision of this Agreement, the Bond Documents, or the Planned Unit Development Agreement. Section 9.2. Remedies on Default. Whenever any Event of Default referred to in Section 9.1 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; and (c) take whatever other 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. Section 9.3. 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 City to exercise any remedy reserved to it, it shall not be necessary to give notice, other than such notice as may be required in this Article IX. Section 9.4. 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. 411 DJG- 178166v7 19 CL205- I 1 • ARTICLE X Additional Provisions Section 10.1. Conflict of Interests; Authority and Representatives Not Individually Liable. The City, the Authority, and the Developer, to the best of their respective knowledge, represent and agree that no member, official, or employee of the City or 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 City or the Authority shall be personally liable to the Developer, the Rental Housing Owner or the Senior Housing Owner, or any successor in interest, in the event of any default or breach by the City or the Authority, or for any amount which may become due to the Developer, the Rental Housing Owner or the Senior Housing Owner or successor or on any obligations under the terms of this Agreement. Section 10.2. 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 shall comply with all applicable federal, State, and local equal employment and non- discrimination laws and regulations. • • Section 10.3. Restrictions on Use. The Developer agrees that prior to the Maturity Date, it, the Rental Housing Owner or the Senior Housing Owner, and their successors and assigns: (a) shall use the Property solely for the purpose of constructing and operating housing facilities pursuant to the terms of this Agreement; (b) shall not discriminate upon the basis of race, color, creed, sex, national origin, or any other classification prohibited by law in the sale, lease, or rental, or in the use or occupancy of the Property or any improvements erected or to be erected thereon, or any part thereof; and (c) shall otherwise comply with the restrictions on use set forth in this Agreement. Section 10.4. 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 Property and any such deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. Section 10.5. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 10.6. 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; and (a) in the case of the City, is addressed to or delivered personally to the City at 590 40th Avenue N.E., Columbia Heights, MN, Attn: City Administrator; DJCT- 178166v7 20 CL205 -11 (b) in the case of the Authority, is addressed to or delivered personally to the Authority at 59040th Avenue N.E., Columbia Heights, MN, Attn: Executive Director; and (c) in the case of the Developer, is addressed to or delivered and personally to Columbia Heights Transition Block LLC, 325 Cedar Street, Suite 400, St. Paul, MN 55101; 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 10.6. Section 10.7. Counterparts; Modifications. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. This Agreement may not be modified, waived, or otherwise amended except by a writing signed by the Developer, the City, and the Authority. Section 10.8. Attorney Fees. Whenever any Event of Default occurs and if the City or 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 (10) days of written demand by the City and the Authority, pay to the City and the Authority the reasonable fees of such attorneys and such other expenses so incurred by the City and the Authority. • Section 10.9. Continuation of Certain Obligations. Nothing in this Agreement shall act to .. modify, amend, or otherwise relieve the Developer of its obligations and undertakings as stated in the Bond Documents, the Planned Unit Development Agreement, or any other agreement to which the City or the Authority is a party. Section 10.10. Governing Law; Venue. This Agreement shall be construed in accordance with the laws of the State of Minnesota. Any dispute arising from this Agreement shall be heard in the state or federal courts of Minnesota, and all parties waive any objection to the jurisdiction thereof, whether based on convenience or otherwise. Section 10.11. Termination of Agreement. Upon termination of this Agreement, no party hereto shall have any obligation or rights hereunder and this Agreement shall be of no further force and effect, except as such provisions herein are expressly stated to survive such termination. • DJG- 178166v7 21 CL205 -11 • IN WITNESS WHEREOF, the City, the Authority and the Developer have caused this Agreement to be duly executed in their name and on their behalf, with actual execution on the dates set forth below. CITY OF COLUMBIA HEI • /0 v f e is ayor By '4'�1 Its City Ad inistrator DATE: 7°0 — /9 `O6. , 2000 IP • • DIG- 178166v7 22 CL205 -11 • COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY A 40 , / By Its President By ,1 Y Its Executive Director DATE: �c" 2000 • • • DJG- 178166v7 23 CL205 -11 • COLUMBIA HEIGHTS TRANSITION BLOCK a By AVIA/ Its DATE: , 2000 • • DJG- 178166x•7 24 CL205- 11 • EXHIBIT A INSERT CONCEPT PLAN • r DJG- 178166v7 A -1 CL205 -11 • Execution Copy PRELIMINARY DEVELOPMENT AGREEMENT BY AND AMONG CITY OF COLUMBIA HEIGHTS AND COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY AND • COLUMBIA HEIGHTS TRANSITION BLOCK LLC Dated Dear Ml , 2000 This document was drafted by: KENNEDY & GRAVEN, Chartered 470 Pillsbury Center Minneapolis, MN 55402 (612) 337 -9300 • DJG- 178166v7 CL205 -11 • , r PROTECT Pella I. - _ _ I 00.1002 -- -_ I_,�! __. _! �-. �Ir_ c ' � �- �l JL ��� - -- �� I - J — \ I - Il COLUMBIA HEIGHTS q r I I I i t. `� ' — I I _ I L—J t I - ` TRANSITION BLOCK - I I Li 1 €� o I . � z L ' �, i I _ _ r p I, ` L_ � Ci of Co /um b®a Heights ; gl REDEVELOPMENT . - ri - LL-- 1 _, I -- ' -- -1 I I 1 -7 JAI n®ka County, Minnesl: = ta i 1 r ,—� _ I x - J 4 - 1 Onsite III�I I — � — r, • f - - I 1 -- - - - ` , — I ! -r - L - I —� — _ - -- _ 1 Parking Information 1-71 1— 1E i:i 1-�1 1: S i r 1 • r _/.. , . 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W r .- 3 333 M [A �, L' = o z .•1 Z r { Standard 9.0' a 20.0' w/24' Drive Lane r -- r �. ` _ .! _ �",� R 4: �, I � 25 1 I y I I Compact 8.5' s 20.0' w/24' Drive Lane ai �] a i I 1 ' l S,reel Park ng 8.5 N 1. m n z o Oil ° ' 8 35 Al = z3 e e ' = 6 ' ' I-- re- I i� w a l Ca i I — ( arall al a L L — r-- U _ EXISTING BUILDING a I I \� �. * ' I I I :. w I J— —1:-7- — . x033 24.o I i -- _ ' F' I J 1 7 • I .-- w DACE / I E 1,,, 1 - ', ► _ J - 1 suit • ��; �= "k I , • - - - --L ; I • P' 0 3 �.os . : 4 3 epee.. sm. - e wen 3 sa 1 .. 1 W y' fg 41st Avenue N.E. • ,7.4.4 4 it l. • - I I 3le I I 1 I 4lwa<.y J I I 51,,,,,..1 . . : J & {;- "7' Cq N Q I- - - -- .44__ _f= ^ i 'i 1 77-1 i -- L - 1 r I I I r - - - I L I I J [ , _ 1 �— r I ., J L I a Jl 1 'I i . 1 1 : 1 L —J1 1 1'1 - ti I I_ � - 7....T.i _I IP 4 L -- • I X C' 1 I l L X r 'r L 1 _ Q r L_,� - - it T -1� '. r - — - r --I J I I • E -- -- ,I 7 H ( � - F I ('- --L� =,e lam I I J I q ; C -1.2 _. • 9 E 1 - I I I 50 0 50 100 750 - ` � I LA - -I I Q l.'. r -- Scale 'I " = 50' 5/8/2000 • Execution Copy LOAN AGREEMENT (Livable Community Act Funds - Columbia Heights Housing Limited Partnership 1) THIS AGREEMENT is made as of this 23rd day of March, 2001 by and between Columbia Heights Housing Limited Partnership I, a Minnesota limited partnership ( "Borrower ") and the City of Columbia Heights, Minnesota, a municipal corporation under the laws of the state of Minnesota ( "Lender "). RECITALS A. Columbia Heights Transition Block LLC, a limited liability company under the laws of the state of Minnesota ( "Developer ") has requested that the Columbia Heights Economic Development Authority ( "Authority ") enter into certain agreements, including but not limited to a contract for private development with Developer dated as of March 23, 2001 (the "Contract "), and that the City of Columbia Heights, Minnesota ( "Lender ") enter into certain agreements with Columbia Heights Housing Limited Partnership I, a Minnesota limited partnership ("Borrower"), all with regard to the construction of a 22 -unit affordable rental townhome facility (the "Project ") to be located on certain property in the City legally described on Exhibit A attached hereto (the "Property "). • B. In order to provide additional financing for the Project and thereby improve and retain affordable housing in the City, Lender agrees to loan to Borrower the sum of One Hundred Thousand and no /100ths Dollars ($100,000) from funds received by Lender from the Metropolitan Council, a public corporation and political subdivision of the state created pursuant to Minnesota Statutes, Chapter 473 (the "Metropolitan Council "), such funds provided to Lender pursuant to Livable Communities Demonstration Account Grant No. SG -99 -47 (the "Grant "), a copy of which is attached hereto as Exhibit B and the terms of which are hereby incorporated by reference. ACCORDINGLY, to induce Lender to make the Loan to Borrower, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. The Loan Amount. Subject to and upon the terms and conditions of this Agreement, Lender agrees to loan to Borrower the sum of One Hundred Thousand and no /100ths Dollars ($100,000), or so much thereof as is disbursed to Borrower in accordance with this Agreement (the "Loan"). The Loan shall be evidenced by a promissory note ( "Note ") payable by Borrower to Lender substantially in the form of Exhibit C attached to this Agreement, which shall be dated as of the date of this Agreement. Lender shall have no obligation to disburse any portion of the Loan to Borrower unless and until Lender receives an equivalent amount of funds from the Metropolitan Council pursuant to the Grant. Proceeds of the Loan shall be disbursed in accordance with Section 3 hereof. • DJG- 195106v1 1 CL205 -11 • 2. Repayment of Loan The entire unpaid balance of the Loan shall be due and payable in full on the earlier of the following: (i) thirty (30) days after written notification by Lender to Borrower of the occurrence of an Event of Default as defined in Section 5 hereof and demand of payment according to Section 6; or (ii) on the first day of the three- hundred sixtieth (360 month following the Closing Date. 3. Disbursement of Loan Proceeds. (a) On such date as requested by Borrower (the "Closing Date "), Loan proceeds shall be paid to Borrower or a trustee or escrow agent designated by Borrower. Borrower warrants that it shall use Loan proceeds only for purposes and activities related to the Project and permitted by the Loan. (b) The following events shall be conditions precedent to the payment of the Loan proceeds to Borrower on the Closing Date: (i) Borrower having executed and delivered to Lender prior to the Closing Date, without expense to Lender, executed copies of this Agreement and the Note; (ii) Borrower having provided evidence satisfactory to Lender that Borrower has established a separate accounting system for the Project, for the • purpose of recording the receipt and expenditure of the Loan proceeds; (iii) Borrower having paid all attorney fees, costs, and expenses incurred by Lender in connection with this Agreement and the Note; (iv) Borrower having delivered to Lender prior to the Closing Date, the Contract, fully approved and executed by all parties thereto; and (v) Borrower having provided Lender with evidence satisfactory to Lender that Borrower has adequate funds to complete the Project. 4. Representations and Warranties. Borrower represents and warrants to Lender that: (a) Borrower is a limited partnership duly organized and existing in good standing under the laws of the State of Minnesota. (b) Borrower is duly authorized and empowered to execute, deliver, and perform this Agreement and the Note, and to borrow money from Lender. (c) The execution and delivery of this Agreement, and the performance by Borrower of its obligations hereunder, do not and will not violate or conflict with any • provision of law or the partnership agreement of Borrower and do not and will not violate DJG- 195106v1 2 CL205 -11 • or conflict with, or cause any default or event of default to occur under, any agreement binding upon Borrower. (d) The execution and delivery of this Agreement has been duly approved by all necessary action of Borrower, and this Agreement has in fact been duly executed and delivered by Borrower and constitutes its lawful and binding obligation, legally enforceable against it. (e) Borrower warrants that it shall keep and maintain books, records, and other documents relating directly to the receipt and disbursements of Loan proceeds and that any duly authorized representative of Lender shall, at all reasonable times, have access to and the right to inspect, copy, audit, and examine all such books, records, and other documents of Borrower respecting the Loan until the completion of all closeout procedures and the final settlement and conclusion of all issues arising out of this Loan. (f) Borrower warrants that it has fully complied with all applicable state and federal laws pertaining to its business and will continue said compliance throughout the terms of this Agreement. If at any time Borrower receives notice of noncompliance from any governmental entity, Borrower agrees to take any necessary action to comply with the State or Federal law in question. (g) Borrower warrants that it will use the proceeds of the Loan made by • Lender solely for the purposes described in Section 3 hereof. (h) Borrower warrants that it will comply with all federal, state, and local laws, rules, and regulations applicable to construction and operation of the Project, including but not limited to those pertaining to occupational health and safety, stormwater discharge, and nondiscrimination. Without limitation of the foregoing, Borrower further specifically warrants that it will comply with all applicable requirements of the Metropolitan Council's Interim Strategy to Reduce Nonpoint Source Pollution to All Metropolitan Water Bodies. (i) To the extent required by the Grant, Borrower shall acknowledge the Loan in promotional materials, press releases, reports, and publications relating to the Project by including in such materials the following or similar language: This project was financed in part with a grant from the Metropolitan Council through the Livable Communities Demonstration Account of the Metropolitan Livable Communities Funds. (j) Borrower warrants that it will provide Lender with all documentation and materials necessary for Lender to comply with Lender's accounting, audit and report requirements under Section III of the Grant. • DJG- 195106v1 3 CL205 -11 • 5. this Agreement: Event of Default by Borrower. The following shall be Events of Default under (a) any breach or failure of Borrower to perform any term or condition of this Agreement or the Note or with respect to the Project under the Contract (as defined in Recital A hereof) and such failure continues for thirty (30) days after Lender has given written notice to Borrower specifying such default or breach unless Lender agrees in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, Lender will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Borrower within the applicable period and is being diligently pursued until the Default is corrected, but no such extension shall be given for a Default that can be cured by the payment of money; (b) any representation or warranty made by Borrower herein or in any document, instrument, or certificate given in connection with this Agreement is false when made; or (c) Borrower is dissolved, liquidated, or wound up, or fails to maintain its existence as a going concern in good standing (excepting reorganizations, consolidations, and mergers into or with affiliates owned by, owning, or under common control of or with such entity or into the parent of such entity, provided the succeeding organization • assumes and accepts such entity's obligations hereunder). 6. Lender's Remedies upon Borrower's Default. Upon an Event of Default by Borrower and after receipt of written notice from Lender, Lender shall have the right to exercise any or all of the following remedies (and any other rights and remedies available to it): (a) declare the Loan to be immediately due and payable upon providing written notice to Borrower; (b) suspend its performance under this Loan Agreement; and (c) take any action provided for at law to enforce compliance by Borrower with the terms of this Loan Agreement or the Note. 7. Lender's Costs of Enforcement of Agreement. If an Event of Default has occurred as provided herein, then upon demand by Lender, Borrower will pay or reimburse Lender for all expenses, including all fees and disbursements of legal counsel, incurred by Lender in connection with the enforcement of this Agreement, or in connection with the protection or enforcement of the interests of Lender in any litigation or bankruptcy or insolvency proceeding or in any action or proceeding relating in any way to the transactions contemplated by this Agreement. • DJG- 195106v1 4 CL205 -11 • 8. Miscellaneous. (a) Waiver. The performance or observance of any promise or condition set forth in this Agreement may be waived only in writing. No delay in the exercise of any power, right or remedy operates as a waiver thereof, nor shall any single or partial exercise of any other power, right or remedy. (b) Assignment. This Agreement shall be binding upon Borrower and its successors and assigns and shall inure to the benefit of Lender and its successors and assigns. All rights and powers specifically conferred upon Lender may be transferred or delegated by Lender to any of its successors and assigns. Borrower's rights and obligations under this Agreement may be assigned only when such assignment is approved in writing by Lender. (c) Law Governing; Other Matters. This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota. Any disputes, controversies, or claims arising out of this Agreement shall be heard in the state or federal courts of Minnesota, and all parties to this Agreement waive any objection to the jurisdiction of these courts, whether based on convenience or otherwise. If any provision or application of this Agreement is held unlawful or unenforceable in any respect, such illegality or unenforceability shall not affect other provisions or applications which can be given effect, and this Agreement shall be construed as if the unlawful or unenforceable • provision or application had never been contained herein or prescribed hereby. All representations and warranties contained in this Agreement or in any other agreement between Borrower and Lender shall survive the execution, delivery and performance of this Agreement and the creation and payment of any indebtedness to Lender. Borrower waives notice of the acceptance of this Agreement by Lender. 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. (d) Titles. Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. (e) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument (f) Notice. All notices required hereunder shall be given by depositing in the U.S. mail, postage prepaid, certified mail, return receipt requested, to the following addresses (or such other addresses as either party may notify the other): To Lender: City of Columbia Heights 590 40th Avenue NE Columbia Heights, MN 55421 • Attn: City Manager DJG- 195106v1 5 CL205 -11 • To Borrower: Columbia Heights Housing Limited Partnership I 325 Cedar Street Suite 400 St. Paul, MN 55101 9. Indemnification. Borrower shall and does hereby agree to indemnify against and to hold Lender, and its officers, agents, and employees, harmless of and from any and all liability, loss, or damage which Lender may or might incur by reason of or arising from any and all claims and demands whatsoever which may be asserted against it by reason of any alleged obligations or undertakings on Lender's part to perform or discharge any of the terms, covenants or agreements contained herein or pursuant to the Grant (except those obligations under the Grant that are within the sole control of Lender). Should Lender, or its officers, agents, or employees incur any such liability or be required to defend against any such claims or demands, or should a judgment be entered against Lender, the amount thereof, including costs, expenses, and attorneys fees, shall bear interest thereon at the rate then in effect on the Note, shall be added to the Loan, and Borrower shall reimburse Lender for the same immediately upon demand, and upon the failure of Borrower so to do, Lender may declare the Loan immediately due and payable. Nothing in this Agreement shall be deemed to waive or limit any immunity from or limitation on liability to which Lender is entitled, under Minnesota Statutes, Chapter 466 or otherwise. • 10. Assumability. Any person taking fee title to the Property may assume Borrower's rights and obligations hereunder by delivering to Lender, in a form reasonably satisfactory to Lender, documentation agreeing to so assume Borrower's rights and obligations under this Agreement. 11. Nonrecourse. Neither the Borrower, nor any general or limited partner, employee, or agent of the Borrower shall have any personal liability of the Borrower's obligations hereunder, it being recognized by the Lender that the obligations of the Borrower hereunder are nonrecourse obligations and that the remedies of the Lender are limited to the security provided as set forth herein. [REST OF PAGE INTENTIONALLY BLANK] 411 DJG- 195106v1 6 CL205 -11 f RandyaSchumacher - LCA Loan agreement -- Columbia Cou i.DOC • IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the • proper officers thereunto duly authorized on the day and year first written above. CITY OF COLUMBIA HTS, MINNESOTA By �i- Its War- ,e/� By ii.4 l�i� i 'y��rLj Its "4 4 4 2 , 47 . 0 ,-- f • • 7 DJG- 195106v1 CL205 -11 • • COLUMBIA HEIGHTS HOUSING LIMITED PARTNERSHIP I By Columbia Heights Townhomes, LLC Its General Partner By Ad! _tik� Kei ans Its Treasur- e • DJG- 195106v1 8 CL205 -11 • EXHIBIT A TO LOAN AGREEMENT PROPERTY LEGAL DESCRIPTION Lot 1, Block 2 and Outlot B, Northwestern 2 Addition, Anoka County, Minnesota • • DJG- 195106v1 A -1 CL205 -11 • EXHIBIT B TO LOAN AGREEMENT [INSERT GRANT DOCUMENT] • • DJG- 195106v1 B-1 CL205 -11 PROMISSORY NOTE - $100,000- March 23, 2001 Columbia Heights Housing Limited Partnership I, a Minnesota limited partnership (the "Maker "), for value received, hereby promises to pay to the City of Columbia Heights (the "City ") or its assigns (the City and any assigns are hereinafter referred to as the "Holder "), at its designated principal office or such other place as the Holder may designate in writing, the principal sum of One Hundred Thousand and no /100ths Dollars ($100,000) or so much thereof as may be advanced under this Note, without interest thereon, in any coin or currency which at the time or times of payment is legal tender for the payment of private debts in the United States of America. The principal of this Note is payable as follows: 1. The Loan shall not bear interest. 2. The entire unpaid balance of the Loan shall be due and payable in full on the first day of the three - hundred sixtieth (360 month following the "Closing Date" as defined in the loan agreement between the Maker and the City dated as of March 23, 2001 (the "Loan Agreement "). 3. The Maker shall have the right to prepay the principal of this Note at any time, in whole or in part, without prepayment penalty. 4. This Note is given pursuant to the Loan Agreement. In the event the Loan Agreement is found to be invalid for whatever reason, such invalidity shall constitute an event of default hereunder. . All of the agreements, conditions, covenants, provisions, and stipulations contained in the Loan Agreement are hereby made a part of this Note to the same extent and with the same force . and effect as if they were fully set forth herein. It is agreed that time is of the essence of this Note. If a default occurs under the Loan Agreement, or any instrument securing this Note, then the Holder of this Note may at its right and option, without notice, declare immediately due and payable the principal balance of this Note, together with any costs of collection including attorney fees incurred by the Holder of this Note in collecting or enforcing payment hereof, whether suit be brought or not, and all other sums due hereunder, or under any instrument securing this Note. The Maker agrees that the Holder of this Note may, without notice to the Maker of this Note and without affecting the liability of the Maker of this Note, accept additional or substitute security for this Note, or release any security or any party liable for this Note or extend or renew this Note. 5. The remedies of the Holder of this Note as provided herein, and in the Loan Agreement, shall be cumulative and concurrent and may be pursued singly, successively, or together, and, at the sole discretion of the Holder of this Note, may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof. DJG-195106v1 C -1 CL205 -I 1 The Holder of this Note shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Holder of this Note and then only to the extent specifically set forth in the writing. A waiver with reference to one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event. This Note may not be amended, modified, or changed except only by an instrument in writing signed by the party against whom enforcement of any such amendment, modifications, or change is sought. 6. If any term of this Note, or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Note, or the application of such term to persons or circumstances other than those to which it is invalid or unenforceable shall not be affected thereby, and each term of this Note shall be valid and enforceable to the fullest extent permitted by law. 7. It is intended that this Note is made with reference to and shall be construed as a Minnesota contract and governed by the laws thereof without regard to the state's conflict of laws provisions. 8. IT IS HEREBY CERTIFIED AND RECITED that all conditions, acts, and things required to exist, happen, and be performed precedent to or in the issuance of this Note do exist, have happened, and have been performed in regular and due form as required by law. 9. Neither the Borrower, nor any general or limited partner, employee, or agent of the Borrower shall have any personal liability of the Borrower's obligations hereunder, it being recognized by the Lender that the obligations of the Borrower hereunder are nonrecourse obligations and that the remedies of the Holder are limited to the security provided as set forth herein. IN WITNESS WHEREOF, the Maker has caused this Note to be duly executed as of the . 23` day of March, 2001. COLUMBIA HEIGHTS HOUSING LIMITED PARTNERSHIP I By Columbia Heights Townhomes, LLC, its general partn- ry By / /�� eith Jans Its Treasurer DJG-195106v1 C_2 CL205 -11 • Execution Copy LOAN AGREEMENT (Community Development Block Grant Funds Columbia Heights Housing Limited Partnership 1) THIS AGREEMENT is made this 23rd day of March, 2001 by and between Columbia Heights Housing Limited Partnership I, a Minnesota limited partnership ( "Borrower ") and the City of Columbia Heights, Minnesota, a municipal corporation under the laws of the state of Minnesota ( "Lender "). RECITALS A. Columbia Heights Transition Block LLC, a limited liability company under the laws of the state of Minnesota ( "Developer ") has requested that the Columbia Heights Economic Development Authority ( "Authority ") enter into certain agreements, including but not limited to a contract for private development with Developer dated March 23, 2001 (the "Contract "), and that the City of Columbia Heights, Minnesota ( "Lender ") enter into certain agreements with Columbia Heights Housing Limited Partnership I, a Minnesota limited partnership (`Borrower "), all with regard to the construction of a 22 -unit affordable rental townhome facility (the "Project ") to be located on certain property in the City legally described on Exhibit A attached hereto (the "Property"). B. In order to provide additional financing for the Project and thereby improve and retain affordable housing in the City, Lender agrees to loan to Borrower the sum of Two Hundred Thirty -One Thousand and no /100ths Dollars ($231,000) from funds received by Lender from the United States Department of Housing and Urban Development Community Development Block Grant program (the "Program "). ACCORDINGLY, to induce Lender to make the Loan to Borrower, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. The Loan Amount. Subject to and upon the terms and conditions of this Agreement, Lender agrees to loan to Borrower the sum of Two Hundred Thirty -One Thousand and no /100ths Dollars ($231,000), or so much thereof as is disbursed to Borrower in accordance with this Agreement (the "Loan"). The Loan shall be evidenced by a promissory note ( "Note ") payable by Borrower to Lender substantially in the form of Exhibit B attached to this Agreement, which shall be dated as of the date of this Agreement. Lender shall have no obligation to disburse any portion of the Loan to Borrower unless and until Lender receives an receives an equivalent amount of funds pursuant to the Program that may be lawfully disbursed to Borrower as set forth herein. Proceeds of the Loan shall be disbursed in accordance with Section 3 hereof. 2. Repayment of Loan The entire unpaid balance of the Loan shall be due and • payable in full on the earlier of the following: (i) thirty (30) days after written notification by Lender to Borrower of the occurrence of an Event of Default as defined in Section 5 hereof and DJG- 190038v3 1 CL205 -11 • demand of payment according to Section 6; or (ii) on the first day of the three- hundred sixtieth • (360"') month following the Closing Date. 3. Disbursement of Loan Proceeds. (a) On , 2001 (the "Closing Date "), Loan proceeds shall be paid to Borrower or a trustee or escrow agent designated by Borrower. Borrower warrants that it shall use Loan proceeds only for purposes and activities related to the Project and permitted by laws, rules, and regulations governing the Program. (b) The following events shall be conditions precedent to the payment of the Loan proceeds to Borrower on the Closing Date: (i) Borrower having executed and delivered to Lender prior to the Closing Date, without expense to Lender, executed copies of this Agreement and the Note; (ii) Borrower having provided evidence satisfactory to Lender that Borrower has established a separate accounting system for the Project, for the purpose of recording the receipt and expenditure of the Loan proceeds; (iii) Borrower having paid all attorney fees, costs, and expenses • incurred by Lender in connection with this Agreement and the Note; (iv) Borrower having delivered to Lender prior to the Closing Date, the Contract, fully approved and executed by all parties thereto; and (v) Borrower having provided Lender with evidence satisfactory to Lender that Borrower has adequate funds to complete the Project. 4. Representations and Warranties. Borrower represents and warrants to Lender that: (a) Borrower is a limited partnership duly organized and existing in good standing under the laws of the State of Minnesota. (b) Borrower is duly authorized and empowered to execute, deliver, and perform this Agreement and the Note, and to borrow money from Lender. (c) The execution and delivery of this Agreement, and the performance by Borrower of its obligations hereunder, do not and will not violate or conflict with any provision of law or the partnership agreement of Borrower and do not and will not violate or conflict with, or cause any default or event of default to occur under, any agreement binding upon Borrower. • DJG- 190038v3 2 CL205 -11 • (d) The execution and delivery of this Agreement has been duly approved by all necessary action of Borrower, and this Agreement has in fact been duly executed and delivered by Borrower and constitutes its lawful and binding obligation, legally enforceable against it. (e) Borrower warrants that it shall keep and maintain books, records, and other documents relating directly to the receipt and disbursements of Loan proceeds and that any duly authorized representative of Lender shall, at all reasonable times, have access to and the right to inspect, copy, audit, and examine all such books, records, and other documents of Borrower respecting the Loan until the completion of all closeout procedures and the final settlement and conclusion of all issues arising out of this Loan. (f) Borrower warrants that it has fully complied with all applicable state and federal laws pertaining to its business and will continue said compliance throughout the terms of this Agreement. If at any time Borrower receives notice of noncompliance from any governmental entity, Borrower agrees to take any necessary action to comply with the State or Federal law in question. (g) Borrower warrants that it will use the proceeds of the Loan made by Lender solely for the purposes described in Section 3 hereof. (h) Borrower warrants that it will comply with all federal, state, and local • laws, rules, and regulations applicable to construction and operation of the Project. (i) Borrower warrants that it will provide Lender with all documentation and materials necessary for Lender to comply with Lender's accounting, audit and report requirements under the Program. 5. Event of Default by Borrower. The following shall be Events of Default under this Agreement: (a) any breach or failure of Borrower to perform any term or condition of this Agreement or the Note or with respect to the Project under the Contract (as defined in Recital A hereof) and such failure continues for thirty (30) days after Lender has given written notice to Borrower specifying such default or breach unless Lender agrees in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, Lender will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Borrower within the applicable period and is being diligently pursued until the Default is corrected, but no such extension shall be given for a Default that can be cured by the payment of money; (b) any representation or warranty made by Borrower herein or in any document, instrument, or certificate given in connection with this Agreement is false • when made; or DJG- 190038v3 3 CL205 -11 (c) Borrower is dissolved, liquidated, or wound up, or fails to maintain its existence as a going concern in good standing (excepting reorganizations, consolidations, and mergers into or with affiliates owned by, owning, or under common control of or with such entity or into the parent of such entity, provided the succeeding organization assumes and accepts such entity's obligations hereunder). 6. Lender's Remedies upon Borrower's Default. Upon an Event of Default by Borrower and after receipt of written notice from Lender, Lender shall have the right to exercise any or all of the following remedies (and any other rights and remedies available to it): (a) declare the Loan to be immediately due and payable upon providing written notice to Borrower; (b) suspend its performance under this Loan Agreement; and (c) take any action provided for at law to enforce compliance by Borrower with the terms of this Loan Agreement or the Note. 7. Lender's Costs of Enforcement of Agreement. If an Event of Default has occurred as provided herein, then upon demand by Lender, Borrower will pay or reimburse Lender for all expenses, including all fees and disbursements of legal counsel, incurred by Lender in connection with the enforcement of this Agreement, or in connection with the • protection or enforcement of the interests of Lender in any litigation or bankruptcy or insolvency proceeding or in any action or proceeding relating in any way to the transactions contemplated by this Agreement. 8. Miscellaneous. (a) Waiver. The performance or observance of any promise or condition set forth in this Agreement may be waived only in writing. No delay in the exercise of any power, right or remedy operates as a waiver thereof, nor shall any single or partial exercise of any other power, right or remedy. (b) Assignment. This Agreement shall be binding upon Borrower and its successors and assigns and shall inure to the benefit of Lender and its successors and assigns. All rights and powers specifically conferred upon Lender may be transferred or delegated by Lender to any of its successors and assigns. Borrower's rights and obligations under this Agreement may be assigned only when such assignment is approved in writing by Lender. (c) Law Governing; Other Matters. This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota. Any disputes, controversies, or claims arising out of this Agreement shall be heard in the state or federal courts of Minnesota, and all parties to this Agreement waive any objection to the • jurisdiction of these courts, whether based on convenience or otherwise. If any provision or application of this Agreement is held unlawful or unenforceable in any respect, such DJG- 190038v3 4 CL205 -11 • illegality or unenforceability shall not affect other provisions or applications which can be given effect, and this Agreement shall be construed as if the unlawful or unenforceable provision or application had never been contained herein or prescribed hereby. All representations and warranties contained in this Agreement or in any other agreement between Borrower and Lender shall survive the execution, delivery and performance of this Agreement and the creation and payment of any indebtedness to Lender. Borrower waives notice of the acceptance of this Agreement by Lender. 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. (d) Titles. Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. (e) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument (f) Notice. All notices required hereunder shall be given by depositing in the U.S. mail, postage prepaid, certified mail, return receipt requested, to the following addresses (or such other addresses as either party may notify the other): 1111 To Lender: City of Columbia Heights 590 40th Avenue NE Columbia Heights, MN 55421 Attn: City Manager To Borrower: Columbia Heights Housing Limited Partnership I 325 Cedar Street Suite 400 St. Paul, MN 55101 9. Indemnification. Borrower shall and does hereby agree to indemnify against and to hold Lender, and its officers, agents, and employees, harmless of and from any and all liability, loss, or damage which Lender may or might incur by reason of or arising from any and all claims and demands whatsoever which may be asserted against it by reason of any alleged obligations or undertakings on Lender's part to perform or discharge any of the terms, covenants or agreements contained herein or pursuant to the Program (except those obligations under the Program that are not within the control of Borrower). Should Lender, or its officers, agents, or employees incur any such liability or be required to defend against any such claims or demands, or should a judgment be entered against Lender, the amount thereof, including costs, expenses, and attorneys fees, shall bear interest thereon at the rate then in effect on the Note, shall be added to the Loan, and Borrower shall reimburse Lender for the same immediately upon demand, and upon the failure of Borrower so to do, Lender may declare the Loan immediately due and • payable. Nothing in this Agreement shall be deemed to waive or limit any immunity from or DJG- 190038v3 5 CL205 -I 1 • limitation on liability to which Lender is entitled, under Minnesota Statutes, Chapter 466 or otherwise. 10. Assumability. Any person taking fee title to the Property may assume Borrower's rights and obligations hereunder by delivering to Lender, in a form reasonably satisfactory to Lender, documentation agreeing to so assume Borrower's rights and obligations under this Agreement. 11. Nonrecourse. Neither the Borrower, nor any general or limited partner, employee, or agent of the Borrower shall have any personal liability of the Borrower's obligations hereunder, it being recognized by the Lender that the obligations of the Borrower hereunder are nonrecourse obligations and that the remedies of the Lender are limited to the security provided as set forth herein. [REST OF PAGE INTENTIONALLY BLANK] • • DJG- 190038v3 6 CL205 -11 rainTia:Chiim7a7c F ii.156 - 67 -------------------------- 1 5 .16T7 _ __ ............_........................._......______ _ ....,..._ . . 1 . IIII 1 IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the proper officers thereunto duly authorized on the day and year first written above. i CITY OF COLUMBIA - , TS, MINNESOTA / B a i 3c26thill fr- "..- 4 )40 - ---- )---- 1 Its 7r7eal Or X. By 4de.:2/ Its i i ; i i • 1 i i .• • • • • 111) 7 • DJG-190038v3 CL205-11 . . ... .. ... .. . .. . . _ - . . . . . . . . . . . . ... .. .. .. . . ._ . .. _.. .. . . _. . . . . . • COLUMBIA HEIGHTS HOUSING LIMITED PARTNERSHIP I By Columbia Heights Townhomes, LLC Its General Partner By 4 Keith Jans Its Treasurer DJG- 190038v3 8 CL205 -11 , III EXHIBIT A TO LOAN AGREEMENT PROPERTY LEGAL DESCRIPTION Lot 1, Block 2 and Outlot B, Northwestern 2 Addition, Anoka County, Minnesota I • S DJG- 190038v3 A -1 CL205 -11 PROMISSORY NOTE - $231,000- March 23, 2001 Columbia Heights Housing Limited Partnership I, a Minnesota limited partnership (the "Maker "), for value received, hereby promises to pay to the City of Columbia Heights (the "City ") or its assigns (the City and any assigns are hereinafter referred to as the "Holder "), at its designated principal office or such other place as the Holder may designate in writing, the principal sum of Two Hundred Thirty -One Thousand and no /100ths Dollars ($231,000) or so much thereof as may be advanced under this Note, without interest thereon, in any coin or currency which at the time or times of payment is legal tender for the payment of private debts in the United States of America. The principal of this Note is payable as follows: 1. The Loan shall not bear interest. 2. The entire unpaid balance of the Loan shall be due and payable in full on the first day of the three- hundred sixtieth (360 month following the "Closing Date" as defined in the loan agreement between the Maker and the City dated March 23, 2001 (the "Loan Agreement "). 3. The Maker shall have the right to prepay the principal of this Note at any time, in whole or in part, without prepayment penalty. 4. This Note is given pursuant to the Loan Agreement. In the event the Loan Agreement is found to be invalid for whatever reason, such invalidity shall constitute an event of default hereunder. All of the agreements, conditions, covenants, provisions, and stipulations contained in the Loan Agreement are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein. It is agreed that time is of the essence of this Note. If a default occurs under the Loan Agreement, or any instrument securing this Note, then the Holder of this Note may at its right and option, without notice, declare immediately due and payable the principal balance of this Note, together with any costs of collection including attorney fees incurred by the Holder of this Note in collecting or enforcing payment hereof, whether suit be brought or not, and all other sums due hereunder, or under any instrument securing this Note. The Maker agrees that the Holder of this Note may, without notice to the Maker of this Note and without affecting the liability of the Maker of this Note, accept additional or substitute security for this Note, or release any security or any party liable for this Note or extend or renew this Note. 5. The remedies of the Holder of this Note as provided herein, and in the Loan Agreement, shall be cumulative and concurrent and may be pursued singly, successively, or together, and, at the sole discretion of the Holder of this Note, may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof. DJG- 190038v3 B -1 CL205 -11 The Holder of this Note shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Holder of this Note and then only to the extent specifically set forth in the writing. A waiver with reference to one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event. This Note may not be amended, modified, or changed except only by an instrument in writing signed by the party against whom enforcement of any such amendment, modifications, or change is sought. 6. If any term of this Note, or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Note, or the application of such term to persons or circumstances other than those to which it is invalid or unenforceable shall not be affected thereby, and each term of this Note shall be valid and enforceable to the fullest extent permitted by law. 7. It is intended that this Note is made with reference to and shall be construed as a Minnesota contract and governed by the laws thereof without regard to the state's conflict of laws provisions. 8. IT IS HEREBY CERTIFIED AND RECITED that all conditions, acts, and things required to exist, happen, and be performed precedent to or in the issuance of this Note do exist, have happened, and have been performed in regular and due form as required by law. 9. Neither the Borrower, nor any general or limited partner, employee, or agent of the Borrower shall have any personal liability of the Borrower's obligations hereunder, it being recognized by the Lender that the obligations of the Borrower hereunder are nonrecourse obligations and that the remedies of the Holder are limited to the security provided as set forth herein. IN WITNESS WHEREOF, the Maker has caused this Note to be duly executed as of the 23` day of March, 2001. COLUMBIA HEIGHTS HOUSING LIMITED PARTNERSHIP I By Columbia Heights Townhomes, LLC Its General Partner By . _ /`! Ke Its T DJG- 190038v3 B -2 CL205 -11