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Home My WebLink About2016-2711lw�# #' CONTRACT I " By and Between FTIMMIME and = Dated as of: October 30, 2015 This document was drafted by: KENNEDY & GRAVEN, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, Minnesota 55402 Telephone: (612) 337 -9300 468034v5 MNI CL205 -23 PREAMBLE.............................................................................................. ..............................1 ARTICLE I Definitions Section 1.1. Definitions ..... ............................... ARTICLE II Representations and Warranties Section 2.1. Representations and Covenants by the Authority and City . ..............................7 Section 2.2. Representations and Warranties by the Redeveloper ........... ..............................8 ARTICLE III Redeveloper Parcels; Financing Section 3.1. Status of the Redeveloper Parcels ........................................ ..............................9 Section 3.2. Environmental Undertakings ............................................... ..............................9 Section3.3. Platting ................................................................................ .............................10 Section 3.4. Assignment of Note ............................................................ .............................10 Section 3.5. Series 2007 Bonds; Refunding Bonds ................................ .............................10 Section 3.6. Payment of Authority Costs ................................................ .............................11 Section3.7. Business Subsidy ................................................................ .............................11 ARTICLE IV Construction of Minimum Improvements and Public Improvements Section 4.1. Construction of Minimum Improvements .......................... .............................13 Section 4.2. Master Site Plan and Construction Plans ............................ .............................13 Section 4.3. Completion of Construction .................................. ............................... Section 4.4. Certificate of Completion ................................................... .............................14 Section4.5. Records ............................................................................... .............................15 Section 4.6. Construction of Public Improvements ................................ .............................15 ARTICLE V Insurance Section5.1. Insurance ............................................................................. .............................17 Section5.2. Subordination ...................................................................... .............................17 Section5.3. Qualifications ...................................................................... .............................18 ARTICLE VI Tax Increment; Taxes 468034v5 MNI CL205 -23 i Section 6. 1. Review of Taxes ................................................................. .............................19 ARTICLE VII Financing Section 7.1. Mortgage Financing ............................................................ .............................20 ARTICLE VIII Prohibitions Against Assignment and Transfer; Indemnification Section 8.1. Representation as to Redevelopment .................................. .............................21 Section 8.2. Prohibition Against Redeveloper's Transfer of Property and Assignmentof Agreement .................................................. .............................21 Section 8.3. Release and Indemnification Covenants ............................. .............................22 ARTICLE IX Events of Default Section 9.1. Events of Default Defined .................................................. .............................24 Section 9.2. Remedies on Default ........................................................... .............................24 Section 9.3. No Remedy Exclusive ......................................................... .............................25 Section 9.4. No Additional Waiver Implied by One Waiver .................. .............................25 ARTICLE X Additional Provisions Section 10.1. Conflict of Interests; Authority and City Representatives Not Individually Liable ...................................................... .............................26 Section 10.2. Equal Employment Opportunity ......................................... .............................26 Section 10.3. Restrictions on Use ............................................................. .............................26 Section 10.4. Provisions Not Merged With Deed ..................................... .............................26 Section 10.5. Titles of Articles and Sections ............................................ .............................26 Section 10.6. Notices and Demands ......................................................... .............................26 Section10.7. Counterparts ........................................................................ .............................27 Section10.8. Amendment ......................................................................... .............................27 Section 10.9. Authority or City Approvals ............................................... .............................27 Section 10.10. Termination ......................................................................... .............................27 SCHEDULE A Description of Redeveloper Parcels SCHEDULE B Master Site Plan SCHEDULE C Form of Certification of Completion 4680345 MNI CL205 -23 ii SECOND AMENDED AND RESTATED CONTRACT FOR PRIVATE REDEVELOPMENT THIS AGREEMENT, made on or as of the 30th day of October, 2015, by and between COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY, a public body corporate and politic (the "Authority "), established pursuant to Minnesota Statutes, Sections 469.090 to 469.1081 (hereinafter referred to as the "Act "), the CITY OF COLUMBIA HEIGHTS, a Minnesota municipal corporation (the "City ") and COLUMBIA HEIGHTS LEASED HOUSING ASSOCIATES I, LLLP, a Minnesota limited liability limited partnership (the "Redeveloper "). WITNESSETH: WHEREAS, the Authority was created pursuant to the Act and was authorized to transact business and exercise its powers by a resolution of the City Council of the City of Columbia Heights ( "City "); and WHEREAS, the City and the Authority (as successor to the Housing and Redevelopment Authority of Columbia Heights, Minnesota) have undertaken a program to promote redevelopment of land that is characterized by blight and blighting factors within the City, and in this connection the Authority administers a redevelopment project known as the Downtown CBD Redevelopment Project ( "Project ") pursuant to Minnesota Statutes, Sections 469.001 to 469.047 (the "HRA Act "); and WHEREAS, pursuant to the Act and the HRA Act, the Authority is authorized to acquire real property, or interests therein, and to undertake certain activities to facilitate the redevelopment of real property by private enterprise; and WHEREAS, within the Project, the City and Authority created the Huset Park Area Tax Increment Financing District ( "TIF District ") in order to facilitate redevelopment of certain property in the Project; and WHEREAS, the Authority and Huset Park Development Corporation (the "Original Developer ") previously entered into a Contract for Private Redevelopment dated as of October 25, 2004, amended and restated in its entirety by an Amended and Restated Contract for Private Redevelopment dated as of August 1, 2007, as amended by a First Amendment thereto dated as of June 16, 2008, a Second Amendment thereto dated as of February 9, 2009, a Third Amendment thereto dated as of September 28, 2009 (subsequent to which BNC National Bank ( "BNC ") succeeded in interest to the Original Developer), a Fourth Amendment thereto dated as of November 21, 2011, a Fifth Amendment thereto dated as of April 2013, and a Sixth Amendment thereto dated as of June 2, 2014 (together, the "Original Contract ") regarding redevelopment of the property described in Schedule A hereto, designated as the Redeveloper Parcels, along with other property within the TIF District (all such property the "Redevelopment Property "); and WHEREAS, the Redeveloper has proposed and the parties to the Original Contract have agreed to the construction by Redeveloper of certain housing improvements on the Redeveloper 468034v5 MNI CL205 -23 I Parcels, subject to assignment of the Original Contract to the Redeveloper and certain other conditions as more fully provided herein; and WHEREAS, this Agreement is intended to supersede and replace the Original Contract in all respects; and WHEREAS, the Authority believes that the redevelopment of the Redeveloper Parcels pursuant to this Agreement, and fulfillment generally of this Agreement, are in the vital and best interests of 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 Project has been undertaken and is being assisted. NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: 4680345 NMI CL205 -23 2 • IJ I Definitions Section I.I. Definitions. In this Agreement, unless a different meaning clearly appears from the context: "Act" means the Economic Development Authority Act, Minnesota Statutes, Sections 469.090 to 469.1082, as amended. "Affiliate" means with respect to the Redeveloper (a) any corporation, partnership, corporation or other business entity or person controlling, controlled by or under common control with the Redeveloper, and (b) any successor to such party by merger, acquisition, reorganization or similar transaction involving all or substantially all of the assets of such party (or such Affiliate). For the purpose hereof the words "controlling ", "controlled by" and "under common control with" shall mean, with respect to any corporation, partnership, corporation or other business entity, the ownership of fifty percent or more of the voting interests in such entity possession, directly or indirectly, of the power to direct or cause the direction of management policies of such entity, whether ownership of voting securities or by contract or otherwise. "Agreement" means this Second Amended and Restated Contract for Private Redevelopment, as the same may be from time to time modified, amended, or supplemented. "Authority" means the Columbia Heights Economic Development Authority, or any successor or assign. "Authority Representative" means the Executive Director of the Authority, or any person designated by the Executive Director to act as the Authority Representative for the purposes of this Agreement. "Available Tax Increment" means, on any payment date for the Note, the Tax Increment derived from the Redevelopment Property during the six -month period preceding each Payment Date that is paid to the Authority by the County in the six months preceding the Payment Date, after deducting $16,500 and the fees of the paying agent under the Paying Agent Agreement between the Authority and Bond Trust Services Corporation dated August 1, 2007 (the "Paying Agent Agreement ") entered into in connection with the Series 2007 Bonds. "BNC" means BNC National Bank, the successor in interest to the Original Developer under the Original Contract. "Business Day" means any day except a Saturday, Sunday, legal holiday, a day on which the City is closed for business, or a day on which banking institutions in the City are authorized by law or executive order to close. 468034v5 MNI CL205 -23 3 "Business Subsidy Act" means Minnesota Statues, Sections 116J.993 to 116J.995, as amended. "Certificate of Completion" means the certification provided to the Redeveloper, or the purchaser of any part, parcel or unit of the Redeveloper Parcels, pursuant to Section 4.4 of this Agreement. "City" means the City of Columbia Heights, Minnesota. "Construction Plans" means the plans, specifications, drawings and related documents on the construction work to be performed by the Redeveloper on the Redeveloper Parcels 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 for each building: (1) site plan; (2) foundation plan; (3) basement plans; (4) floor plan for each floor; (5) cross sections of each (length and width); (6) elevations (all sides); (7) landscape plan; and (8) such other plans or supplements to the foregoing plans as the Authority may reasonably request to allow it to ascertain the nature and quality of the proposed construction work. "County" means the County of Anoka, Minnesota. "Event of Default" means an action by a party described in Section 9.1 of this Agreement. "HRA Act" means Minnesota Statutes, Sections 469.001 to 469.047, as amended. "Holder" means the owner of a Mortgage. "Master Site Plan" means the plan for development of the Redeveloper Parcels, attached as Schedule B and as it may be revised from time to time under Section 4.2. The Master Site Plan attached to this Second Amended and Restated Contract is the plan dated September 25, 2015, in effect as of the date hereof. "Minimum Improvements" means the construction on the Redeveloper Parcels of a multistory building containing approximately 190 to 200 units of multifamily senior rental housing, along with associated underground structured parking and surface parking. "Mortgage" means any mortgage made by the Redeveloper which is secured, in whole or in part, with the Redeveloper Parcels and which is a permitted encumbrance pursuant to the provisions of Article VIII of this Agreement. "Note" means the Taxable Tax Increment Revenue Note, Series 2007, delivered by the Authority to the Original Developer in accordance with Section 3.8 of the Original Contract and subsequently assigned to BNC, and assigned to the Redeveloper in accordance with this Agreement. "Original Contract" means the Contract for Private Redevelopment between the Authority and the Original Developer dated as of October 25, 2004, as amended. 4680345 MNI CL205 -23 4 "Planning Contract" has the meaning provided in Section 3.3(b) hereof. "Public Improvements" has the meaning provided in Section 4.6 hereof. "Redeveloper" means Columbia Heights Leased Housing Associates I, LLLP or its permitted successors and assigns. "Redeveloper Parcels" means the property so described on Schedule A. "Redevelopment Project" means the Authority's Downtown CBD Redevelopment Project. "Redevelopment Property" means the property subject to the Original Contract and described therein on Schedule A, of which the Redeveloper Parcels constitute a part. "Redevelopment Plan" means the Authority's Redevelopment Plan for the Redevelopment Project, as amended. "Series 2007 Bonds" has the meaning provided in Section 3.5. "State" means the State of Minnesota. "Tax Increment" means that portion of the real property taxes which is paid with respect to the Redevelopment Property and which is remitted to the Authority as tax increment pursuant to the Tax Increment Act. The term Tax Increment does not include any amounts retained by or payable to the State auditor under Section 469.177, subd. 11 of the Tax Increment Act, or any amounts described in Section 469.174, subd. 25, clauses (2) through (4) of the Tax Increment Act. "Tax Increment Act" or "TIF Act" means the Tax Increment Financing Act, Minnesota Statutes, Sections 469.174 to 469.1794, as amended. "Tax Increment District" or "TIF District" means the Authority's Huset Park Area Tax Increment Financing District. "Tax Increment Plan" or "TIF Plan" means the Authority's Tax Increment Financing Plan for the TIF District, as approved by the Authority and City on October 25, 2004, and as it may be amended from time to time. "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 court including the tax court of the State. "Termination Date" means the date the Authority receives the last installment of Tax Increment from the County. "Transfer" has the meaning set forth in Section 8.2(a) hereof. 468034v5 MNI CL205 -23 5 "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 war, terrorism, strikes, other labor troubles, 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, economic events beyond the control of the parties that materially reduce the marketability of for sale housing, including unusual increases in mortgage rates or economic recession, 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. Unavoidable Delays shall not include delays in the Redeveloper's obtaining of permits or governmental approvals necessary to enable construction of the Minimum Improvements by the dates such construction is required under Section 4.3 of this Agreement, unless (a) Developer has timely filed any application and materials required by the City for such permit or approvals, and (b) the delay is beyond the reasonable control of the Redeveloper. 468034v5 MNI CL205 -23 6 14WWfl Representations and Warranties Section 2.1. Representations and Covenants by the Authority and City. (a) The Authority is an economic development authority duly organized and existing under the laws of the State. Under the provisions of the Act and the HRA Act, the Authority has the power to enter into this Agreement and carry out its obligations hereunder. (b) The Authority and City will use their best efforts to facilitate development of the Minimum Improvements, including but not limited to cooperating with the Redeveloper in obtaining necessary administrative and land use approvals and construction and/or permanent financing pursuant to Section 7.1 hereof. (c) The activities of the Authority are undertaken for the purpose of fostering the redevelopment of certain real property that is or was occupied primarily by substandard and obsolete buildings, which will revitalize this portion of the Redevelopment Project, increase tax base, and increase housing and employment opportunities. (d) The City is a home rule charter city duly organized and existing under the laws of the State, and is a state public body under Section 469.041 of the HRA Act. Under the provisions of its charter and the HRA Act, the City has the power to enter into this Agreement and carry out its obligations hereunder. (e) The City and Authority have taken all actions necessary to establish the TIF District as a redevelopment district as defined in the TIF Act, and the TIF District has been duly certified by the County. (f) The City and Authority will take no action, nor omit to take any action, regarding the TIF District that materially impairs the collection or payment of Tax Increment. (g) As of the date of this Agreement, the Minimum Improvements to be constructed in accordance with the Master Site Plan are allowed uses under the City zoning ordinance and are consistent with the City Comprehensive Plan. (h) As of the date of this Agreement, the City and Authority have completed all required environmental review and determined that no further environmental review is required under the Minnesota Environmental Policy Act, Minn. Stat. Ch. 116.1). (i) 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 charter or statutory limitation or any indebtedness, agreement or instrument of whatever nature to which the City or Authority is now a party or by which it is bound, or constitutes a default under any of the foregoing. 468034v5 MNT CL205 -23 7 (e) The Authority shall promptly advise City in writing of all litigation or claims affecting any part of the Minimum Improvements. Section 2.2. Representations and Warranties by the Redeveloper. The Redeveloper represents and warrants that: (a) The Redeveloper is a limited liability limited partnership organized and in good standing under the laws of the State of Minnesota, is not in violation of any provisions of its certificate of limited partnership or the laws of the State, is duly authorized to transact business within the State, has power to enter into this Agreement and has duly authorized the execution, delivery and performance of this Agreement by proper action of its partners. (b) Upon acquisition of the Redeveloper Parcels, the Redeveloper will construct, operate and maintain the Minimum Improvements in accordance with the terms of this Agreement, the Redevelopment Plan and all applicable local, state and federal laws and regulations (including, but not limited to, environmental, zoning, building code and public health laws and regulations). (c) The Redeveloper will obtain, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, state and federal laws and regulations which must be obtained or met before the Minimum Improvements may be lawfully constructed. (d) 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 partnership or company restriction or any evidences of indebtedness, agreement or instrument of whatever nature to which the Redeveloper is now a party or by which it is bound, or constitutes a default under any of the foregoing. (e) The Redeveloper shall promptly advise City in writing of all material 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 Redeveloper or its business which may delay or require changes in construction of the Minimum Improvements. (f) The proposed redevelopment by the Redeveloper hereunder would not occur but for the tax increment financing assistance being provided by the Authority hereunder. 468034v5 MNI CL205 -23 8 • Redeveloper Parcels; Financing Section 3.1. Status of the Redeveloper Parcels. As of the date of this Agreement, the Redeveloper has acquired the Redeveloper Parcels, which consist of the real property described in Schedule A, from BNC, BNC has assigned the Original Contract to the Redeveloper, and the parties hereto have executed this Agreement, which supercedes the Original Contract in all respects. Section 3.2. Environmental Undertakings. (a) The Redeveloper acknowledges that the Authority makes no representations or warranties as to the condition of the soils on the Redeveloper Parcels or the fitness of the Redeveloper Parcels for construction of the Minimum Improvements or any other purpose for which the Redeveloper may make use of such property, and that this Agreement neither implies any responsibility by the Authority or the City for any contamination of the Redeveloper Parcels nor imposes any obligation on such parties to participate in any cleanup of the Redeveloper Parcels. The parties further acknowledge and agree that all environmental remediation obligations imposed pursuant to the Original Contract have been fully satisfied. (b) Without limiting its obligations under Section 8.3 of this Agreement, the Redeveloper 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 existing on or in the Redeveloper Parcels, unless and to the extent that such hazardous wastes or pollutants are present as a result of the actions or omissions of the indemnitees. Nothing in this section will be construed to limit or affect any limitations on liability of the City or Authority under State or federal law, including without limitation Minnesota Statutes Sections 466.04 and 604.02. Section 3.3. Platting. (a) Before commencing construction of the Minimum Improvements, the Redeveloper shall record a plat of the the Redeveloper Parcels at Redeveloper's cost and subject to all City ordinances and procedures (the "Plat "). The Plat must be consistent with the Master Site Plan, provided that nothing in this Agreement is intended to limit the City's authority in reviewing the preliminary or final Plat, or to preclude revisions requested or required by the City. The City and Authority will cooperate in all replatting. The relationship between the Master Site Plan and the Plat is further described in Section 4.2(a) hereof. The Redeveloper must dedicate to the City, at no cost, all public rights of way needed for Huset Parkway, storm water ponding area and any necessary utility easements. (b) In connection with the Plat, the parties agree and understand that the Redeveloper and City will enter into a Development Contract for Plat of Huset Park Senior Living (the "Planning Contract "), to be executed no later than the date of Redeveloper's closing on bond financing in connection with construction of the Minimum Improvements, that addresses planning and land use requirements and is consistent with the covenants regarding the Minimum Improvements and Public Improvements described in Article W hereof. 4680345 MNI CL205 -23 9 (c) The City will vacate existing streets and rights of way as needed to effectuate the Plat. The Redeveloper will cooperate with the City in this effort, including without limitation filing any requests or consents required under City ordinances or State law. (d) The Redeveloper shall pay all SAC and WAC fees and park dedication fees in accordance with applicable City policies and ordinances. The Redeveloper will receive SAC/WAC credits applicable to the Redeveloper Parcels, and a credit against park dedication fees for the portion of the storm water pond dedication area not used for the storm water pond (such credit being in the amount of the fair market value of that land area). The details of SAC, WAC and park dedication fees, including amounts and timing of payment, will be specified in the Planning Contract. Section 3.4. Assignment of Note. (a) Pursuant to the Original Contract, the Authority issued its Tax Increment Revenue Note, Series 2007A, in the principal amount of $6,650,000, to the Original Developer, and the Original Developer subsequently assigned the Note to BNC. As of the date of this Agreement, BNC has assigned the Note to the Redeveloper. The parties agree and acknowledge that payments on the Note are payable solely from and in the amount of Available Tax Increment as defined in the Note, and that the pledge of Available Tax Increment to the Note is subordinate to the pledge of Available Tax Increment to the Series 2007 Bonds (as defined below). (b) The Redeveloper understands and acknowledges that the Authority makes no representations or warranties regarding the amount of Available Tax Increment, or that revenues pledged to the Note will be sufficient to pay the principal and interest on the Note. Any estimates of Tax Increment prepared by the Authority or its financial advisors in connection with the TIF District or this Agreement are for the benefit of the Authority, and are not intended as representations on which the Redeveloper may rely. Section 3.5. Series 2007 Bonds; Refunding Bonds. (a) Pursuant to the Original Contract, the Authority issued its tax exempt Tax Increment Revenue Bonds, Series 2007 (Huset Park Area Redevelopment Project), in the principal amount of $2,890,000 (the "Series 2007 Bonds "). Proceeds of the Series 2007 Bonds were used to reimburse the Original Developer for a portion of the Public Redevelopment Costs incurred by the Original Developer. (b) In conjunction with execution of this Agreement, the Authority will refund the Series 2007 Bonds to achieve debt service savings (such refunding bonds hereinafter referred to as the "Refunding Bonds "), which will result in increased Available Tax Increment available for principal and interest payments to the Redeveloper under the Note. The Redeveloper agrees that after adoption by the Authority of a resolution approving the sale of the Refunding Bonds and no later than ten business days prior to the date of closing on the Refunding Bonds, the Redeveloper will pay to the Authority the following: (i) an administrative fee of $100,000, which will be deposited into a legally authorized redevelopment fund to be designated by the Authority or City; and (ii) funds in the amount of the total actual costs of issuance (including underwriter's discount) of the Refunding Bonds. To evidence the costs of issuance, the Authority will provide to the Redeveloper an itemized detail of actual costs of issuance as determined by the Authority's fiscal advisor. (c) The Redeveloper makes the following representations to the Authority with respect to the Series 2007 Bonds and any Refunding Bonds: 468034v5 MNI CL205 -23 10 (1) The Redeveloper will take no action, and will not fail to take an action, the effect of which will be to cause the Series 2007 Bonds or Refunding Bonds to be determined to be a "private activity bond" (as such term is defined in Section 141 of the Internal Revenue Code of 1986, as amended (the "Code ") and in applicable Treasury Regulations promulgated pursuant to applicable provisions of the Code (the "Regulations ") (2) The Redeveloper will take no action, and will not fail to take an action, the effect of which will be to cause the "private security or payment test" (as such term is defined in Section 141 of the Code and in applicable Regulations) or the "private loan financing test (as such term is defined in Section 141 of the Code and in applicable Regulations to be satisfied with respect to the Series 2007 Bonds or Refunding Bonds. (3) The Redeveloper will take no action, and will not fail to take an action, the effect of which will be to cause the Series 2007 Bonds or Refunding Bonds to be determined to be an "arbitrage bond "(as such term is defined in Section 148 of the Code and in applicable Regulations). (4) The Redeveloper will take no action, and will not fail to take an action, the effect of which will be to cause interest on the Series 2007 Bonds or Refunding Bonds to be includable in gross income for federal income tax purposes. Section 3.6. Payment of Authority Costs. The Redeveloper is responsible to pay "Authority Costs," which term means reasonable out -of pocket -costs incurred by the City or Authority for: (i) the Authority's financial advisor in connection with the Authority's financial participation in redevelopment of the Redeveloper Parcels, including without limitation all costs related to the negotiation and preparation of this Agreement, (ii) the City or Authority's legal counsel in connection with negotiation and drafting of this Agreement and any related agreements or documents, and any legal services related to the Authority's financial participation in redevelopment of the Property; and (iii) any consultants retained by the City and Authority for planning, environmental review, and engineering related to the Minimum Improvements, including the zoning and land use approvals. City and Authority staff costs and costs and expenses shall not be Authority Costs. (b) At any time, but not more often than monthly, the City or Authority may request payment of Authority Costs, and the Developer agrees to pay all Authority Costs within ten days of the City or Authority's written request, supported by suitable billings, receipts or other evidence of the amount and nature of Authority Costs incurred. At Redeveloper's request, but no more often than monthly, the Authority will provide Developer with a written report on current and anticipated expenditures for Authority Costs, including invoices or other comparable evidence. Section 3.7. Business Subsidy. (a) The parties agree and understand that any assistance provided to the Redeveloper under this Agreement with respect to the Redeveloper Parcels is not a "business subsidy" under the Business Subsidy Act because the Tax Increment assistance is for housing. 4680340 MNI CL205 -23 1 I (b) The Redeveloper releases and waives any claim against the Authority and the City and the governing body members, officers, agents, servants and employees thereof arising from application of the Business Subsidy Act to this Agreement, including without limitation any claim that the Authority failed to comply with the Business Subsidy Act with respect to this Agreement. (The remainder of this page is intentionally left blank.) 468034v5 MNI CL205 -23 12 • D Construction of Minimum Improvements and Public Improvements Section 4.1. Construction of Minimum Improvements. The Redeveloper agrees that it will construct the Minimum Improvements on the Redeveloper Parcels in accordance with approved Construction Plans, and at all times while Redeveloper owns the Redeveloper Parcels, will operate, maintain, preserve and keep the respective components of the Minimum Improvements or cause such components to be operated, maintained, preserved and kept with the appurtenances and every part and parcel thereof, in good repair and condition. Section 4.2. Master Site Plan and Construction Plans. (a) Master Site Plan. The Master Site Plan for the Redeveloper Parcels as of September 25, 2015 is attached hereto as Schedule B. The parties agree and understand that the Master Site Plan may be refined and modified as part of the review and approval process for the Plat, subject to approval by the Authority. (b) Construction Plans. Before commencing construction of the Minimum Improvements, the Redeveloper shall submit to the Authority Construction Plans. The City's chief building official and community development director will review and approve all Construction Plans on behalf of the Authority, and for the purposes of this Section the term "Authority" means those named officials. The Construction Plans shall provide for the construction of the Minimum Improvements and shall be in conformity with this Agreement, the Master Site Plan, the TIF Plan, the Planning Contract and all applicable State and local laws and regulations. The Authority will approve the Construction Plans in writing or by issuance of a permit if (i) the Construction Plans conform to all terms and conditions of the Master Site Plan, this Agreement, the Plat and the Planning Contract; (ii) the Construction Plans conform to the goals and objectives of 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; and (v) there is no uncured Event of Default. No approval by the Authority shall relieve the Redeveloper of the obligation to comply with the terms of this Agreement, applicable federal, state and local laws, ordinances, rules and regulations, or to construct the Minimum Improvements in accordance therewith. No approval by the Authority shall constitute a waiver of an Event of Default, or waiver of any State or City building or other code requirements that may apply. Within 30 days after receipt of complete Construction Plans and permit applications for the Minimum Improvements, the Authority will deliver to the Redeveloper an initial review letter describing any comments or changes requested by Authority staff. Thereafter, the parties shall negotiate in good faith regarding final approval of Construction Plans for the Minimum Improvements. The Authority's approval shall not be unreasonably withheld or delayed. 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. The Redeveloper hereby waives any and all claims and causes of action whatsoever resulting from the review of the Construction Plans by the Authority and /or any changes in the Construction Plans requested by the Authority, except for any failure by Authority to perform its obligations under this Section. Neither the Authority, the City, nor any employee or official of the Authority or City 4680340 MNI CL205 -23 13 shall be responsible in any manner whatsoever for any defect in the Construction Plans or in any work done pursuant to the Construction Plans, including changes requested by the Authority. (c) Construction Plan Changes. If the Redeveloper desires to make any material change in the Construction Plans or any component thereof after their approval by the Authority, the Redeveloper shall submit the proposed change to the Authority for its approval. For purposes of this Section, the term "material" means changes that increase or decrease construction costs by more than 5% of total construction costs. 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 Redeveloper 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 Redeveloper, setting forth in detail the reasons therefor. Such rejection shall be made as soon as reasonably practicable but in any event within 30 days after receipt of the notice of such change. The Authority's approval of any such change in the Construction Plans will not be unreasonably withheld. Section 4.3. Commencement and Completion of Construction. Subject to Unavoidable Delays, the Redeveloper shall commence construction of the Minimum Improvements by June 1, 2016. Subject to Unavoidable Delays, the Redeveloper shall complete the construction of the Minimum Improvements by December 31, 2017. All work with respect to the Minimum Improvements to be constructed or provided by the Redeveloper on the Redeveloper Parcels shall be in conformity with the Construction Plans as submitted by the Redeveloper and approved by the Authority. (b) The Redeveloper agrees for itself, its successors, and assigns, and every successor in interest to the Redeveloper Parcels, or any part thereof, that the Redeveloper, and such successors and assigns, shall promptly begin and diligently prosecute to completion the development of the Redeveloper Parcels through the construction of the Minimum Improvements thereon, and that such construction shall in any event be commenced and completed within the period specified in this Section 4.3 of this Agreement. After the date of this Agreement and until the Minimum Improvements have been fully leased, the Redeveloper shall make reports, in such detail and at such times as may reasonably be requested by the Authority, but no more than monthly, as to the actual progress of the Redeveloper with respect to such construction and leasing. 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 Redeveloper to construct the Minimum Improvements (including the dates for completion thereof), the Authority will furnish the Redeveloper with a Certificate of Completion in substantially the form attached as Schedule D. Such certification by the Authority shall be a conclusive determination of satisfaction and termination of the agreements and covenants in the Agreement and in any deed with respect to the obligations of the Redeveloper, and its successors and assigns, to construct the Minimum Improvements and the date for the completion thereof. Such certification and such determination shall not constitute evidence of compliance with or satisfaction of any obligation of the Redeveloper to any Holder of a Mortgage, or any insurer of a Mortgage, securing money loaned to finance the Minimum Improvements, or any part thereof. 468034v5 MNI CL205 -23 14 (b) Upon Redeveloper's request, the Authority shall furnish to the Redeveloper a Certificate of Completion for each housing unit upon substantial completion of such unit, as evidenced by issuance of a certificate of occupancy therefor by the responsible inspecting authority. (c) If the Authority shall refuse or fail to provide any certification in accordance with the provisions of this Section 4.4 of this Agreement, the Authority shall, within thirty (30) days after written request by the Redeveloper, provide the Redeveloper with a written statement, indicating in adequate detail in what respects the Redeveloper has failed to complete the Minimum Improvements in accordance with the provisions of the Agreement, or is otherwise in default, and what measures or acts it will be necessary, in the opinion of the Authority, for the Redeveloper to take or perform in order to obtain such certification. (d) The construction of the Minimum Improvements shall be deemed to be substantially complete for the purposes of this Agreement when the Redeveloper has received a certificate of occupancy from the City for all housing units, and the specified site improvements for the Minimum Improvements have been substantially completed as reasonably determined by the Authority Representative. Section 4.5. Records. The Authority and the City through any authorized representatives, shall have the right at all reasonable times after reasonable notice to inspect, examine and copy all books and records of Redeveloper relating to the Minimum Improvements. Such records shall be kept and maintained by Redeveloper through the Termination Date. Section 4.6. Construction of Public Improvements. (a) The Redeveloper shall construct, at Redeveloper's sole cost, public improvements on and /or benefitting the Redeveloper Parcels, including the following (collectively, the "Public Improvements "): i. Continuation of the decorative fencing installed along Trunk Highway 47 (between Naegele Avenue and Jolly Lane) from Naegele Avenue south to 37h Avenue NE, within the Minnesota Department of Transportation right -of -way. ii. Construction of a 10 -foot wide bituminous multi -use trail, adjacent to Trunk Highway 47, extending from Naegele Avenue south to 37th Avenue NE, within the Minnesota Department of Transportation right -of -way. iii. Construction of a 6 -foot wide concrete sidewalk, adjacent to 37th Avenue NE, extending from Trunk Highway 47 east to Huset Parkway. iv. Construction of a landscaped water feature and other onsite stormwater management features, conforming to Mississippi Watershed Management Organization standards and City requirements. Construction of the Public Improvements shall be performed pursuant to the requirements of the Planning Contract. 468034v5 MNI CL205 -23 15 (b) The Redeveloper shall undertake all work related to the Public Improvements in compliance with all applicable federal and state laws, including without limitation all applicable state and federal environmental regulations. (The remainder of this page is intentionally left blank.) 468034v5 MNI CL205 -23 16 F.11 !1A • Insurance Section 5.1. Insurance. (a) The Redeveloper will provide and maintain at all times during the process of constructing the Minimum Improvements an All Risk Broad Form Basis Insurance Policy and, from time to time during that period, at the request of the Authority, furnish the Authority with proof of payment of premiums on policies covering the following: (i) Builder's risk insurance, written on the so- called `Builder's Risk -- Completed Value Basis," in an amount equal to one hundred percent (100 %) of the insurable value of the Minimum Improvements at the date of completion, and with coverage available in nonreporting form on the so- called "all risk" form of policy. The interest of the Authority shall be protected in accordance with a clause in form and content satisfactory to the Authority; (ii) Comprehensive general liability insurance (including operations, contingent liability, operations of subcontractors, completed operations and contractual liability insurance) together with an Owner's Contractor's Policy with limits against bodily injury and property damage of not less than $2,000,000 for each occurrence, and shall be endorsed to show the City and Authority as additional insured (to accomplish the above- required limits, an umbrella excess liability policy may be used); and (iii) Workers' compensation insurance, with statutory coverage. (b) Upon completion of construction of the Minimum Improvements and prior to the Termination Date, the Redeveloper 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 $2,000,000 and shall be endorsed to show the City and Authority as additional insureds. (iii) Such other insurance, including workers' compensation insurance respecting all employees of the Redeveloper, in such amount as is customarily carried by like organizations engaged in like activities of comparable size and liability exposure; provided that the Redeveloper may be self - insured with respect to all or any part of its liability for workers' compensation. 4680340 MNI CL205 -23 17 (c) All insurance required in Article V of this Agreement shall be taken out and maintained in responsible insurance companies selected by the Redeveloper that are authorized under the laws of the State to assume the risks covered thereby. Upon request, the Redeveloper will deposit annually with the Authority a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Article 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 Redeveloper and the Authority at least 30 days before the cancellation or modification becomes effective. In lieu of separate policies, the Redeveloper may maintain a single policy, blanket or umbrella policies, or a combination thereof, having the coverage required herein, in which event the Redeveloper shall deposit with the Authority a certificate or certificates of the respective insurers as to the amount of coverage in force upon the Minimum Improvements. Any insurance required under this Article may be provided separately by Phase or building. (d) The Redeveloper 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 Redeveloper 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 Redeveloper will apply the net proceeds of any insurance relating to such damage received by the Redeveloper to the payment or reimbursement of the costs thereof. The Redeveloper shall complete the repair, reconstruction and restoration of the Minimum Improvements, regardless of whether the net proceeds of insurance received by the Redeveloper 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 the Redeveloper. Section 5.2. Subordination. Notwithstanding anything to the contrary herein, the rights of the Authority with respect to the receipt and application of any insurance proceeds shall, in all respects, be subordinate and subject to the rights of any Holder under a Mortgage allowed pursuant to Article VII of this Agreement. Section 5.3. Qualifications. Notwithstanding anything herein to the contrary, the parties acknowledge and agree that upon transfer of the Redeveloper Parcels or portion thereof to another person or entity, the Redeveloper will remain obligated under Section 5.1 hereof relating to such portion transferred, unless the Redeveloper is released from such obligations in accordance with the terms and conditions of Section 8.2(b) or 8.3 hereof. 468034v5 MNI CL205 -23 18 Tax Increment; Taxes Section 6.1. Review of Taxes. The Redeveloper agrees that prior to the Termination Date it will not cause a reduction in the real property taxes paid in respect of the Redeveloper Parcels through: (A) willful destruction of the Redeveloper Parcels or any part thereof; or (B) willful refusal to reconstruct damaged or destroyed property pursuant to Section 5.1(d) of this Agreement. The Redeveloper also agrees that it will not, prior to the Termination Date, seek exemption from property tax for the Redeveloper Parcels or any portion thereof or transfer or permit the transfer of the Redeveloper Parcels to any entity that is exempt from real property taxes and state law (other than any portion thereof dedicated or conveyed to the City in accordance with platting of the Redeveloper Parcels), or apply for a deferral of property tax on the Redeveloper Parcels pursuant to any law. (The remainder of this page is intentionally left blank.) 468034v5 MNI CL205 -23 19 Financing Section 7.1. Mortgage Financing. (a) Before commencement of construction of the Minimum Improvements, the Redeveloper shall submit to the City evidence of one or more commitments for financing which, together with committed equity for such construction, is sufficient for payment of 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 financing commitment, or any combination of the foregoing. (b) If the Authority finds that the financing is sufficiently committed and adequate in amount to pay the costs specified in paragraph (a) then the Authority shall notify the Redeveloper in writing of its approval. Such approval shall not be unreasonably withheld and either approval or rejection shall be given within twenty (20) days from the date when the Authority is provided the evidence of financing. A failure by the Authority to respond to such evidence of financing shall be deemed to constitute an approval hereunder. If the Authority rejects the evidence of financing as inadequate, it shall do so in writing specifying the basis for the rejection. In any event the Redeveloper shall submit adequate evidence of financing within ten (10) days after such rejection. (c) In the event that there occurs a default under any Mortgage authorized pursuant to Section 7.1 of this Agreement, the Redeveloper shall cause the Authority to receive copies of any notice of default received by the Redeveloper 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 Redeveloper within such cure periods as are available to the Redeveloper under the Mortgage documents. In the event there is an event of default under this Agreement, the Authority will transmit to the Holder of any Mortgage a copy of any notice of default given by the Authority pursuant to Article IX of this Agreement. (d) In order to facilitate the securing of other financing, the Authority agrees to subordinate its rights under this Agreement provided that such subordination shall be subject to such reasonable terms and conditions as the Authority and Holder mutually agree in writing. Notwithstanding anything to the contrary herein, any subordination agreement must include the provision described in Section 7.1(c). 4680340 MNI CL205 -23 20 Prohibitions Against Assignment and Transfer; Indemnification Section 8.1. Representation as to Redevelopment. The Redeveloper represents and agrees that its purchase of the Redeveloper Parcels, and its other undertakings pursuant to the Agreement, are, and will be used, for the purpose of redevelopment of the Redeveloper Parcels and not for speculation in land holding. Section 8.2. Prohibition Against Redeveloper's Transfer of Property and Assignment of Agreement. The Redeveloper represents and agrees that until the Termination Date: (a) Except as specifically described in this Agreement, the Redeveloper has not made or created and will not make or create or suffer to be made or created any total or partial sale, assignment, conveyance, or lease, or any trust or power, or transfer in any other mode or form of or with respect to this Agreement or the Redeveloper Parcels or any part thereof or any interest therein, or any contract or agreement to do any of the same, to any person or entity (collectively, a "Transfer "), without the prior written approval of the Authority's board of commissioners. The term "Transfer" does not include (i) encumbrances made or granted by way of security for, and only for, the purpose of obtaining construction, interim or permanent financing necessary to enable the Redeveloper or any successor in interest to the Redeveloper Parcels or to construct the Minimum Improvements or component thereof, (ii) any lease, license, easement or similar arrangement entered into in the ordinary course of business related to operation of the Minimum Improvements, (iii) any sale, conveyance, or transfer in any form to any Affiliate; (iv) the admission of limited partners and any subsequent transfer of limited partnership interests in accordance with Redeveloper's agreement of limited partnership (the "Partnership Agreement "); or (v) the removal and replacement of the Redeveloper's general partner by the investor limited partner for cause in accordance with the terms of the Partnership Agreement. (b) If the Redeveloper seeks to effect a Transfer, the Authority shall be entitled to require as conditions to such Transfer that: (1) Any proposed transferee shall have the qualifications and financial responsibility, in the reasonable judgment of the Authority, necessary and adequate to fulfill the obligations undertaken in this Agreement by the Redeveloper as to the portion of the Redeveloper Parcels to be transferred; and (2) Any proposed transferee, by instrument in writing satisfactory to the Authority, 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 Redeveloper under this Agreement as to the portion of the Redeveloper Parcels to be transferred and agreed to be subject to all the conditions and restrictions to which the Redeveloper is subject as to such portion; provided, however, that the fact that any transferee of, or any other successor in interest whatsoever to, the Redeveloper Parcels, 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 4680345 MNI CL205 -23 21 Authority) deprive the Authority of any rights or remedies or controls with respect to the Redeveloper Parcels, the Minimum Improvements 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 Redeveloper Parcels 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 Redeveloper Parcels that the Authority would have had, had there been no such transfer or change. In the absence of specific written agreement by the Authority to the contrary, no such transfer or approval by the Authority thereof shall be deemed to relieve the Redeveloper, or any other party bound in any way by this Agreement or otherwise with respect to the Redeveloper Parcels, from any of its obligations with respect thereto. (3) Any and all instruments and other legal documents involved in effecting the transfer of any interest in this Agreement or the Redeveloper Parcels governed by this Article VIII, shall be in a form reasonably satisfactory to the Authority, except for amendments to the Partnership Agreement for the sole purpose of effecting the transfers referenced in Section 8.2(a)(iv) hereof. (c) If the conditions described in paragraph (b) are satisfied, then the Transfer will be approved and the Redeveloper shall be released from its obligation under this Agreement, as to the portion of the Redeveloper Parcels that is transferred, assigned, or otherwise conveyed, unless the parties mutually agree otherwise. The Authority will review and respond to a request for Transfer within 45 days after receipt of a written request. Notwithstanding anything to the contrary herein, any Transfer that releases the Redeveloper from its obligations under this Agreement (or any portion thereof) shall be approved by the Authority's board of commissioners. If the Redeveloper remains fully bound under this Agreement notwithstanding the Transfer, as documented in the transfer instrument, the Transfer may be approved by the Authority Representative. The provisions of this paragraph (c) apply to all subsequent transferors. Section 8.3. Release and Indemnification Covenants. (a) The Redeveloper releases from and covenants and agrees that the Authority and the City and the governing body members, officers, agents, servants and employees thereof shall not be liable for and agrees to indemnify and hold harmless the Authority and the City and the governing body members, officers, agents, servants and employees thereof against any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Minimum Improvements. (b) Except for willful or negligent misrepresentation, misconduct or negligence of the Indemnified Parties (as hereafter defined), and except for any breach by any of the Indemnified Parties of their obligations under this Agreement, the Redeveloper agrees to protect and defend the Authority and the City and the governing body members, officers, agents, servants and employees thereof (the "Indemnified Parties "), now or forever, and further agrees to hold the Indemnified Parties harmless from any claim, demand, suit, action or other proceeding whatsoever by any 4680345 MNI CL205 -23 22 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. (c) Except for any negligence of the Indemnified Parties (as defined in clause (b) above), and except for any breach by any of the Indemnified Parties of their obligations under this Agreement, the Indemnified Parties shall not be liable for any damage or injury to the persons or property of the Redeveloper or its officers, agents, servants or employees or any other person who may be about the Minimum Improvements due to any act of negligence of any person. (d) All covenants, stipulations, promises, agreements and obligations of the Authority contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Authority and not of any governing body member, officer, agent, servant or employee of the Authority in the individual capacity thereof. (The remainder of this page is intentionally left blank.) 468034v5 MNI CL205 -23 23 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, any one or more of the following events, after the non - defaulting party provides 30 days written notice to the defaulting party of the event, but only if the event has not been cured within said 30 days or, if the event is by its nature incurable within 30 days, the defaulting party does not, within such 30 -day period, provide assurances reasonably satisfactory to the party providing notice of default that the event will be cured and will be cured as soon as reasonably possible: (a) Failure by the Redeveloper or the Authority to observe or perform any material covenant, condition, obligation, or agreement on its part to be observed or performed under this Agreement or the Planning Contract; (b) The Redeveloper: (i) files any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act or under any similar federal or State law; or (ii) makes an assignment for benefit of its creditors; (iii) admits in writing its inability to pay its debts generally as they become due; (iv) is adjudicated a bankrupt or insolvent. Section 9.2. Remedies on Default. (a) Whenever any Event of Default referred to in Section 9.1 of this Agreement occurs, the non - defaulting party may exercise its rights under this Section 9.2 after providing thirty days written notice to the defaulting party of the Event of Default, but only if the Event of Default has not been cured within said thirty days or, if the Event of Default is by its nature incurable within thirty days, the defaulting party does not provide assurances reasonably satisfactory to the non - defaulting party that the Event of Default will be cured and will be cured as soon as reasonably possible: (b) Upon an Event of Default by the Redeveloper, the Authority may withhold payments under the Note in accordance with its terms, which withheld amount is payable, without interest thereon, on the first payment date after the default is cured. (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. 4680345 MNI CL205 -23 24 Section 9.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the Authority or Redeveloper 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 either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. Section 9.5. Rights of Limited Partners. Whenever Authority delivers any notice of default hereunder, Authority shall concurrently deliver a copy of such notice to the limited partner of Redeveloper in accordance with Section 10.6. The limited partner shall have the same right as Redeveloper to cure or remedy any default hereunder within the cure period provided to Redeveloper. (The remainder of this page is intentionally left blank.) 4680340 MNI CL205 -23 25 Additional Provisions Section 10.1. Conflict of Interests; Authority and City Rpresentatives Not Individually Liable. The Authority, the City, and the Redeveloper, to the best of their respective knowledge, represent and agree that no member, official, or employee of the Authority or City shall have any personal interest, direct or indirect, in the Agreement, nor shall any such member, official, or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership, or association in which he is, directly or indirectly, interested. No member, official, or employee of the Authority or City shall be personally liable to the Redeveloper, or any successor in interest, in the event of any default or breach by the Authority or City or for any amount which may become due to the Redeveloper or successor or on any obligations under the terms of the Agreement. Section 10.2. Equal Employment Opportunity. The Redeveloper, for itself and its successors and assigns, agrees that during the construction of the Minimum Improvements provided for in the Agreement it will comply with all applicable federal, state and local equal employment and non - discrimination laws and regulations. Section 10.3. Restrictions on Use. The Redeveloper agrees that until the Termination Date, the Redeveloper, and any successors and assigns, shall devote the Redeveloper Parcels to the operation of the Minimum Improvements for uses described in the definition of such term in this Agreement, and shall not discriminate upon the basis of race, color, creed, sex or national origin in the lease or rental or in the use or occupancy of the Redeveloper Parcels or any improvements erected or to be erected thereon, or any part thereof. 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 Redeveloper Parcels 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 the 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 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 (a) in the case of the Redeveloper, is addressed to or delivered personally to the Redeveloper at 2905 Northwest Boulevard, Suite 150, Plymouth, MN 55441 -2644, Attention: Mark S. Moorhouse and Ron Mehl, with copies to the following: 4680345 MNI CL205 -23 26 Winthrop & Weinstine 225 South Sixth Street, Suite 3500 Minneapolis, MN 55402 Attn: John D Nolde Alliant ALP 80, LLC c/o Alliant Asset Management Company, LLC 21600 Oxnard Street, 12' Floor Woodland Hills, CA 91367 Attn: Brian Goldberg Bocarsly Emden Cowan Esmail & Arndt LLP 633 West 5th Street, 64th Floor Los Angeles, CA 90071 Attn: Kyle Arndt, Esq.; and (b) in the case of the Authority or City, is addressed to or delivered personally at 590 40th Avenue NE, Columbia Heights, Minnesota 55421, Attn: Executive Director /City Manager; 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. Section 10.7. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 10.8. Amendment. This Agreement may be amended only by written agreement approved by the Authority and the Redeveloper. Section 10.9. Authorily or City Approvals. Unless otherwise specified, any approval required by the Authority under this Agreement may be given by the Authority Representative, and any approval required by the City under this Agreement may be given by the City Representative. Section 10.10. Termination. This Agreement terminates on the Termination Date, except that termination of the Agreement does not terminate, limit or affect the rights of any party that arise before the Termination Date. 4680345 MNI CL205 -23 27 IN WITNESS WHEREOF, the Authority has caused this Agreement to be duly executed in its name and behalf and its seal to be hereunto duly affixed and the Redeveloper has caused this Agreement to be duly executed in its name and behalf on or as of the date first above written. COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTH RITY B is President By Its Executive irector STATE OF MINNESOTA SS. COUNTY OF ANOKA The foregoing, instrument was acknowledged before me this &y of 1�'rj'(11 2016, by , and Walter R. Fehst, the President and Executive Dire ctor of the Columbia, Heights Economic Development Authority, a public body politic and corporate, on behalf of the Authority. Notary Public 4680345 MNI CL205-23 S-1 CITY OF COLUMBIA HEIGHTS Its Mayor By Its City Manager STATE OF MINNESOTA ) SS. COUNTY OF ANOKA ) The foregoing instrument was acknowledged before me this L day of 2016, by Gary Peterson and Walter R. Fehst, the Mayor and City Manager of the City f Columbia Heights, a Minnesota municipal corporation, on behalf of the City. Notary Public fig,. .. .... 468034v5 MNI CL205 -23 S-2 COLUMBIA HEIGHTS LEASED HOUSING ASSOCIATES I, LLLP, a Minnesota Limited Liablity Limited Partnership By: Columbia Heights Leased Ho ing Associates I, LLC Its General Partner Lo STATE OF MINNESOTA ) SS. COUNTY OF HENNEPIN ) Mark S. Moorhouse Its Senior Vice President The foregoing instrument was acknowledged before me this day of IN , 2016 by Mark S. Moorhouse, the Senior Vice President of Columbia Heights Leased Housing Associates I LLC, a Minnesota limited liability company, the General Partner of Columbia Heights Leased Housing Associates I, LLLP, a Minnesota limited liability limited partnership, on behalf of the partnership. 468034v5 MNI CL205 -23 S -3 Parcel 1: Outlot A, Huset Park Second Addition. Anoka County, Minnesota Abstract Property Parcel 2: Lots 1, 2, 3, 4, 5 and 6 in Block 90 in Columbia Heights Annex to Minneapolis. Lot 4, Auditor's Subdivision No. 50, Anoka County, Minnesota. That part of Lot 5, Auditor's Subdivision No. 50, Anoka County, Minnesota, beginning at the Southwest corner of Lot 4 in said subdivision; thence East along the line dividing said Lots 4 and 5 a distance of eight -six and five tenths (86.50) feet to an angle point in said line; thence North along the line dividing said Lots 4 and 5, a distance of four and thirty -five hundredths (4.35) feet to the actual point of beginning of the tract of land to be described; thence continuing North along said dividing line one hundred thirteen and eight -three hundredths (113.83) feet to an angle point in said line; thence Easterly along the dividing line between said Lots 4 and 5 a distance of one hundred seventy -two and eight tenths (172.8) feet to the East line of said Lot 4; thence South along the extension of the East line of said Lot 4 a distance of two and four tenths (2.4) feet; thence Southwesterly along a curved line, convex to the Northwest, with a radius of seventeen hundred thirty and twenty -five hundredths (1,730.25) feet and running parallel with and eleven and five tenths (11.5) feet Northwesterly of the center line of a spur track running through said Lot 5, to the actual point of beginning. Lot 7, 8, 9, 10, 11, 12, 13, 14 and 15 in Block 90 in Columbia Heights Annex to Minneapolis; also the following described portion of Block "G" said Columbia Heights Annex to Minneapolis: Commencing at the Southwest corner of said Block "G ", running thence North along the line between said Block "G" and the above mentioned Block 90, 360 feet to the Northeast corner of said Lot 7 in said Block 90; running thence East parallel with the South line of said Block "G" 279.9 feet to a point 50 feet Westerly at right angles from the center of the railroad tract operated across said Block "G'; thence running Southerly curving to the left along a line which is the right of way line of said railroad and 50 feet Westerly from and parallel with said tract, said tract being upon a curve of 5 degrees, to the South line of said Block "G "; running thence West along the South line of said Block "G" 194.4 feet to the place of beginning. 468034v5 MNI CL205 -23 A-1 Being the same premises conveyed to the party of the first part by the Columbia Heights Foundry Co., a corporation of the State of Minnesota, by deed dated August 2, 1909, filed on August 3, 1909 in Book "61 ", Page 539. Commencing at a point 279.9 feet Easterly from the Northeast corner of Lot 7, Block 90, Columbia Heights Annex to Minneapolis, and in a line drawn from said Northeast corner of said Lot 7 parallel with the South line of Block "G" of said Columbia Heights Annex to Minneapolis, said point of beginning being the Northeasterly corner of a tract of land heretofore under date of August 2, 1909, conveyed by Columbia Heights Foundry Company to said party of the first part; thence running East on a line parallel with the South line of said Block "G" to a point 6 feet Westerly from the center of the Westerly rail of the railroad tract running in a Northerly and Southerly direction across said Block "G ", said tract being the first track East of the tract of land conveyed to said party by said deed of August 2, 1909; thence Southerly, on a 5 degree curve to the left, along a line parallel with and 6 feet distance Westerly from the center of said Westerly rail of said railroad tract, to the South line of said Block "G "; thence Westerly along said South line of said Block "G" to a point 194.4 feet Easterly from the Southwest corner of said Block "G', said point Easterly from said Southwest corner of said Block "G" being the Southeasterly corner of said tract heretofore under date of August 2nd, 1909 conveyed to said first party; thence running North on a 5 degree curve to the right along the Easterly line of said tract deeded said first party on August 2nd, 1909, and parallel with said Westerly rail of said railroad tract, to the place of beginning. The last described premises being subject to the provisions of a certain agreement dated December 30, 1909, made between the party of the first part and the Arcade Investment Company, a Minnesota corporation, and being the same premises conveyed to the party of the first part by the said The Arcade Investment Company by deed dated December 30, 1909, filed on February 21, 1910, in Book "60 ", Page 351. All that part of Block "G ", Columbia Heights Annex to Minneapolis, described as follows, to -wit: Commencing at a point 86.5 feet Easterly from the Northeast corner of Lot 7, Block 90 in said Columbia Heights Annex to Minneapolis, and in a line drawn Easterly from said Northeast corner of said Lot 7 and parallel with the South line of said Block "G "; deflecting thence 90 degrees from said line to the North and running thence North a distance of 118.18 feet to a point 6 feet South, measured at right angles from the center of the Southerly rail of the Thiem Manufacturing Company's spur track which crosses said Block "G ", as the same is now laid out and established on the ground; thence deflecting to the right 90 degrees, 16 minutes and 30 seconds and running thence Southeasterly a distance of 100 feet to a point 6 feet Southerly, measured at right angles from the center of the said Southerly rail of said spur track; thence deflecting to the left 8 degrees 52 minutes 30 seconds, and running thence Northeasterly a distance of 100 feet to a point 6 feet Southerly, measured at right angles from the center of said Southerly rail of said spur track; thence deflecting to the left 12 degrees 56 minutes, 30 seconds and running thence Northeasterly 468034v5 MNI CL205 -23 A -2 a distance of 76.96 feet to a point 6 feet Southerly, measured at right angles from the center of said Southerly rail of said spur track and 47.64 feet Westerly, measured at right angles from the center of the Westerly rail of the Soo Railway track which crosses said Block "G" farthest to the West; thence deflecting to the right 140 degrees 3 minutes and running thence Southwesterly a distance of 100 feet to a point 47.64 feet Westerly, measured at right angles from the center of the said Westerly rail of said Soo track; thence deflecting to the left 5 degrees 2 minutes, and running thence Southwesterly a distance of 79.55 feet to a point 47.64 feet Westerly, measured at right angles from the center of the said Westerly rail of said Soo Railway track, said point being also 276.61 feet Easterly from said Northeast corner of said Lot 7, Block 90, and in a line drawn from said Northeast corner of said Lot 7 and parallel with the South line of said Block "G "; thence deflecting to the right 66 degrees 25 minutes and running thence West along said line drawn Easterly from said Northeast corner of said Lot 7, Block 90, and parallel with the South line of said Block "G ", a distance of 190.11 feet to the place of beginning. Being the same premises conveyed to the party of the first part by the said The Arcade Investment Company by deed dated July 24, 1911, filed November 14, 1911, in Book "69" Page 137. TOGETHER WITH: All that part of Block "G', Columbia Heights Annex to Minneapolis, described as follows: Commencing at a point 321.36 feet Easterly from the Northeast corner of Lot 7, Block 90, said Columbia Heights Annex to Minneapolis and in a line drawn from said Northeast corner of said Lot 7 and parallel with the South line of said Block "G ", said point being also 6 feet Westerly, measured at right angles from the center of the Westerly rail of the Soo Railway Company's track which crosses said Block "G" farthest to the West; thence West along said line described as drawn Easterly from the said Northeast corner of said Lot 7 and parallel with the South line of said Block "G" a distance of 44.75 feet to a point, said point being 276.61 feet Easterly from the said Northeast corner of said Lot 7, Block 90, measured along said line described as drawn parallel with the South line of said Block "G "; thence deflecting to the right 113 degrees 35 minutes, and running thence Northeasterly a distance of 79.55 feet to a point 47.64 feet Westerly, measured at right angles from the center of said Westerly rail of said Soo track; thence deflecting to the right 5 degrees 2 minutes, and running thence Northeasterly 100 feet to a point 6 feet Southerly; measured at right angles from the center of the Southerly rail of the Thiem Manufacturing Company's spur track which crosses said Block "G ", as the same is now laid out and established on the ground, and 47.64 feet Westerly, measured at right angles from the center of the Westerly rail of said Soo track; thence deflecting to the right 39 degrees 57 minutes and running thence Northeasterly a distance of 23.04 feet to a point 6 feet Southerly, measured at right angles from the center of the Southerly rail of said Thiem spur track; thence deflecting to the left 11 degrees 22 minutes and 30 seconds, and running thence Northeasterly 65.15 feet to a point 6 feet Southerly, measured at right angles from the center of the said Southerly rail of said Thiem spur track, and 6 feet Westerly, measured at right angles from the center of the Westerly rail of the said Soo track; thence deflecting to the right 154 degrees 32 minutes, and running thence Southwesterly a distance of 100 feet; to a point 6 feet Westerly, measured at right angles from the said Westerly rail of said Soo track; thence deflecting to the left 4 degrees 40 minutes 4680340 MNI CL205 -23 A -3 and running thence Southeasterly 100 feet to a point 6 feet Westerly, measured at right angles from the said Westerly rail of said Soo track; thence deflecting to the left 3 degrees 18 minutes, and running thence Southwesterly a distance of 33.30 feet to the point of beginning. Except that part of Lot 5, Auditor's Subdivision No. 50, Anoka County, Minnesota, beginning at the Southwest corner of Lot 4 in said Subdivision; thence East along the line dividing said Lots 4 and 5 a distance of 86.5 feet to an angle point in said line; thence North along the line dividing said Lots 4 and 5, a distance of 4.35 feet to the actual point of beginning of the tract of land to be described; thence continuing North along said dividing line 113.83 feet to an angle point in said line; thence Easterly along the dividing line between said Lots 4 and 5 a distance of 172.8 feet to the East line of said Lot 4; thence South along the extension of the East line of said Lot 4 a distance of 2.4 feet; thence Southwesterly along a curved line, convex to the Northwest, with a radius of 1730.25 feet, and running parallel with and 11.5 feet Northwesterly of the center line of a spur track running through said Lot 5, to the actual point of beginning. ► M The South 1159.70 feet of the following description: That part of University Avenue (Trunk Highway No. 47) lying North of the Westerly extension of the South line of Block 90, Columbia Heights Annex to Minneapolis, Anoka County, Minnesota, South of the South line of Fortieth Avenue N.E. and East of the following described line: Beginning at the Southwest corner of said Block 90; thence South 89 degrees 56 minutes 00 seconds West, assumed bearing, along the Westerly extension of the South line of said Block 90 a distance of 32.00 feet; thence North 00 degrees 41 minutes 54 seconds West, a distance of 440.00 feet; thence North 00 degrees 59 minutes 24 seconds West, a distance of 585.00 feet; thence North 02 degrees 21 minutes 12 seconds West, a distance of 870.58 feet, more or less, to the South line of Fortieth Avenue N.E. and there terminating. Except that part included in the plat of Huset Park Second Addition. That part of Thirty - Eighth Avenue N.E. as dedicated in the plat of Columbia Heights Annex to Minneapolis, Anoka County, Minnesota, lying West of the Southerly extension of the Westerly right of way of Fifth Street N.E. and lying East of a line drawn from the Northwest corner of Lot 1, Auditor's Subdivision No. 50, Anoka County, Minnesota to the Southwest corner of Block 98, Columbia Heights Annex to Minneapolis, Anoka County, Minnesota. Except that part included in the plat of Huset Park Second Addition. Parcel 3: 468034v5 MNI CL205 -23 A -4 Lot 3, Auditor's Subdivision No. 50, Anoka County, Minnesota, except that part thereof which lies Southeasterly of the following described line: Said line commences at the Northwest corner of said Lot 3; thence South 89 degrees 55 minutes 31 seconds East, on an assumed bearing, along the North line of said Lot 3, a distance of 143.15 feet to the point of beginning of said line; thence Southwesterly on a non - tangential curve a distance of 83.69 feet, said curve has a radius of 815.00 feet, a central angle of 05 degrees 53 minutes 02 seconds, a chord length of 83.66 feet, and a chord bearing of South 38 degrees 02 minutes 41 seconds West to the South line of said Lot 3, and there terminating. Anoka County, Minnesota To be replatted pursuant to this Agreement as: Lot 1, Block 1, Huset Park Senior Living Anoka County, Minnesota 468034v5 MNI CL205 -23 A -5 I OE: 10- i V' MAR 1 9 NNE Y'sfR IN sl 5 �1 PT 9 10- i V' MAR 1 9 U. 0, v I O tr O 0o 'IT Y'sfR IN sl 5 �1 PT 9 41- U. 0, v I O tr O 0o 'IT (The remainder of this page is intentionally left blank.) 468034v5 MNI CL205-23 C-1 WHEREAS, the Columbia Heights Economic Development Authority (the "Authority "), the City of Columbia Heights (the "City ") and Columbia Heights Leased Housing Associates I, LLLP ( "Redeveloper ") entered into a certain Second Amended and Restated Contract for Private Redevelopment dated October 30, 2015 ( "Contract "); and WHEREAS, the Contract contains certain covenants and restrictions set forth in Articles III and IV thereof related to completing certain Minimum Improvements; and WHEREAS, the Redeveloper has performed said covenants and conditions insofar as it is able in a manner deemed sufficient by the Authority to permit the execution and recording of this certification; NOW, THEREFORE, this is to certify that all construction and other physical improvements related to the Minimum Improvements specified to be done and made by the Redeveloper have been completed and the agreements and covenants in Articles III and IV of the Contract have been performed by the Redeveloper, and this Certificate is intended to be a conclusive determination of the satisfactory termination of the covenants and conditions of Articles III and IV of the Contract related to completion of the Minimum Improvements, but any other covenants in the Contract shall remain in full force and effect. (Signature page follows.) 468034v5 MNI CL.205 -23 Dated: , 20 . COLUMBIA HEIGHTS DEVELOPMENT AUTHORITY STATE OF MINNESOTA ) SS. COUNTY OF ANOKA ) Authority Representative ECONOMIC The foregoing instrument was acknowledged before me this day of , 20_ by the of the Columbia Heights Economic Development Authority, on behalf of the Authority. Notary Public This document drafted by: Kennedy & Graven, Chartered (MNI) 470 U.S. Bank Plaza Minneapolis, MN 55402 468034v5 MNI CL205 -23