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HomeMy WebLinkAbout2.B. Draft Development Agreement – Steeple Center Senior Housing 4 ROSEMOUNT EXECUTIVE SUMMARY CITY COUNCIL City Council Work Session Date: January 21, 2014 AGENDA ITEM: Draft Development Agreement-Steeple AGENDA SECTION: Center Senior Housing Discussion PREPARED BY: Kim Lindquist, Community Development AGENDA NO. Director 2.0. ATTACHMENTS: Draft Agreement APPROVED BY: i)A) RECOMMENDED ACTION: Discussion Item Only ISSUE The City has been working with Wally Johnson and more recently Mark Appelbaum to redevelop the Steeple Center site to include a private assisted senior housing project. They continue to work on drawings for Planning Commission submittal with a tentative date of February 25, 2014 for Commission review and Council review in March. Meanwhile, staff and the City Attorney have been working on the development agreement which is attached.While the template is somewhat similar to the development agreement for Waterford Commons, there is no TIF associated with the project and therefore the agreement is simplified. DISCUSSION Staff wanted to bring this item to the Council for discussion prior to the Council being asked to take final action on the project. This item is also on the Port Authority agenda as both the Council and Port Authority own land associated with the project.There are four main financial items found in the agreement: • The property will be sold for$1 to the developer. • Park dedication will not be required for the memory care and care suite units which are estimated to be 30. • Any SAC credits over and above what is needed for the City's public Activity Center will be allocated to the private senior housing project. • The developer will have access to some of the LCDA grant monies,particularly$200,000 for the underground stormwater storage facility, so long as they comply with all LCDA requirements. It is unclear if all of the above issues were discussed with the Council when staff last brought a development agreement to the Council;when the City was partnering with Doran. In response to the City's commitment, the developer is stating (in the agreement) that they will build a senior housing facility (minimum improvements) generally consistent with the plans that the Council has already viewed. Depending upon when the drawings for the Commission review come into the City, these may be added to the Agreement as the attachments. The process of approving the development agreement prior to final site and rezoning approval does not reduce the City's ability to require modifications to the site plan should the Council deem it appropriate. Rather, the agreement clarifies what the two parties are willing to do in the partnership, should both perform consistent with the agreement. There are a few items yet to be determined.These issues are generally related to the maintenance of shared improvements such as the building link or the underground stormwater tank. A final decision needs to be made as to where the property line is located between the future two newly created properties. And a discussion about shared maintenance for site improvements such as landscaping, parking, and irrigation needs to be explored. These items are noted in the development agreement- that the City and Developer agree to work toward a maintenance agreement. RECOMMENDATION Prior to being asked to approve the development agreement, staff wanted the Council to have an opportunity to review the document and discuss the financial considerations in the agreement. 2 II DRAFT CONTRACT FOR PRIVATE DEVELOPMENT STONEBRIDGE SENIOR HOUSING By and Among THE ROSEMOUNT PORT AUTHORITY and THE CITY OF ROSEMOUNT and ROSEMOUNT SENIOR LIVING I This document drafted by: KENNEDY&GRAVEN, CHARTERED 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis,MN 55402 (612) 337-9300 438026v42 RS230-60 TABLE OF CONTENTS PAGE PREAMBLE 1 ARTICLE I Definitions Section 1.1. Definitions 1 Section 1.2. Exhibits 23 Section 1.3. Rules of Interpretation 3 ARTICLE II Representations ons and Warranties Section 2.1. Representations by the Authority and the City 3 Section 2.2. Representations and Warranties by the Developer 3 ARTICLE III Sale of Property; Minimum Market Value Section 3.1. Purchase of Property by Builder 4 Section 3.2. Title and Examination 4 Section 3.3. Taxes and Special Assessments 5 Section 3.4. Soil Conditions and Hazardous Wastes 5 Section 3.5. Site Clearance and Subdivision 5 Section 3.6. Other Preconditions to Closing 5 Section 3.7. Closing 6 Section 3.8. Closing Costs 6 Section 3.9. Sewer and Water 6 Section 3.10. ISTS Disclosure 6 Section 3.11. Well Disclosure 6 Section 3.12. Easement Agreement 6 ARTICLE IV Construction of Minimum Improvements Section 4.1. Construction of Minimum Improvements 6 Section 4.2. Construction Plans 7 Section 4.3. Commencement and Completion of Construction 8 Section 4.4. Certificate of Completion and Release of Forfeiture 8 Section 4.5. Required Insurance 8 438026v42 RS230-60 i ARTICLE V Business Subsidy Act Requirements Section 5.1. Business Subsidy 10 ARTICLE VI Events of Default Section 6.1. Events of Default Defined 10 Section 6.2. Remedies on Default 10 Section 6.3. Revesting Interest in the Authority and the City upon Happening of Event of Default Subsequent to Conveyance to Developer 11 Section 6.4. No Remedy Exclusive 12 Section 6.5. No Additional Waiver Implied by One Waiver 12 ARTICLE VII Restrictions on Sale; Section 7.1. Restrictions on Sale or Assignment + 12 Section 7.2. Subordination 14 ARTICLE VIII Additional Provisions Section 8.1. Conflict of Interests;Representatives Not Individually Liable 14 Section 8.2. Restrictions on Use 14 Section 8.3. Provisions Not Merged With Deed 14 Section 8.4. Notices and Demands 14 Section 8.5. Counterparts 15 Section 8.6. Disclaimer of Relationships 15 TESTIMONIUM 16 SIGNATURES 16-18 EXHIBIT A LEGAL DESCRIPTION OF CITY/AUTHORITY PROPERTY EXHIBIT B PRELIMINARY PLAN DOCUMENTS EXHIBIT C FORM OF CERTIFICATE OF COMPLETION AND RELEASE OF FORFEITURE EXHIBIT D SKETCH OF DEVELOPMENT PROPERTY EXHIBIT E FORM OF PROPERTY DEED EXHIBIT F PARKING,ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT 438026v1-2 RS230-60 ii CONTRACT FOR PRIVATE DEVELOPMENT FOR STONEBRIDGE SENIOR HOUSING This Contract for Private Development for Stonebridge Senior Housing (the "Agreement"), made this day of , 2014, by and among the Rosemount Port Authority, a public corporation under the laws of Minnesota (the "Authority"), the City of Rosemount, a Minnesota municipal corporation (the "City"), and _Rosemount Senior Living I , a Limited Liability Company under the laws of Minnesota (the"Developer"). WITNESSETH: WHEREAS, the Authority and the City are the fee owners of certain land legally described on Exhibit A attached hereto (the"CITY/AUTHORITY Property"); and WHEREAS, the Developer desires to purchase the a portion of the CITY/AUTHORITY Property as depicted on Exhibit D attached hereto (the "Development Property") and construct improvements(the"Minimum Improvements")thereon; and WHEREAS, the Authority and the City believe that the sale and development of the Development Property and the fulfillment generally of this Agreement are in the vital and best interests of Rosemount and the health, safety,morals,and welfare of its residents. NOW, THEREFORE, in consideration of the covenants and the mutual obligations contained herein, the Authority, the City and the Developer hereby covenant and agree with each other as follows: ARTICLE I Definitions Section 1.1. Definitions. In this Agreement the following terms shall have the meanings given 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 Rosemount Port Authority, a public corporation under the laws of Minnesota. "Certificate of Completion and Release of Forfeiture" means a certificate in the form attached hereto as Exhibit C by which the Authority acknowledges that the Developer has met its obligations regarding construction of the Minimum Improvements. 1 438026v4-2 RS230-60 "City"means the city of Rosemount,a municipal corporation under the laws of Minnesota. "Construction Plans" means the final plans for construction of the Minimum Improvements to be submitted by the Developer and approved by the Authority and by the City. "County"means Dakota County, Minnesota. "Developer" means _Rosemount Senior Living Associates I , a Limited Liability Company under the laws of the State of Minnesota "Development Property" means the real property upon which the Minimum Improvements will be constructed, which property is depicted in Exhibit D attached hereto. "Event of Default" means an action by the Developer or the Authority or the City listed in Article VI of this Agreement. "Minimum Improvements" means a senior housing complex having constructed in accordance with the Construction Plans. After completion of the Minimum Improvements, the term shall mean the Development Property as improved by the Minimum Improvements. "Minimum Market Value" means a market value for real estate tax purposes of at least Dollars ($ ) with respect to the Development Property and Minimum Improvements as of no later than January 2, 2016 for taxes payable beginning in 2017. "Preliminary Plans" means, collectively, the plans, drawings and specifications for the construction of the Minimum Improvements that are attached as Exhibit B attached hereto. "Property Deed" means the quit claim deed in the form attached hereto as Exhibit E by which the Authority and the City will convey the Development Property to the Developer. "Sale" means any sale, conveyance, lease, exchange, forfeiture or other transfer of the Developer's interest in the Minimum Improvements or Development Property,whether voluntary or involuntary. "State"means the state of Minnesota. "Substantial Completion" means completion of the Minimum Improvements to the degree allowing issuance of a certificate of occupancy by the City's building official. 2 438026v-12 RS230-60 "Unavoidable Delays" means delays that are the direct result of unanticipated adverse weather conditions; strikes or other labor troubles; fire or other casualty to the Minimum Improvements; litigation commenced by third parties that, by injunction or other similar judicial action, directly results in delays; or, except those of the City or the Authority reasonably contemplated by this Agreement, any acts or omissions of any federal, State or local governmental unit that directly result in delays in construction of the Minimum Improvements. Section 1.2. Exhibits. The following exhibits are attached to and by reference made a part of this Agreement: Exhibit A. Legal Description of CITY/AUTHORITY Property Exhibit B. Preliminary Plan Documents Exhibit C. Form of Certificate of Completion and Release of Forfeiture Exhibit D. Sketch of Development Property Exhibit E. Form of Property Deed Exhibit F. Form of Parking, Access and Pedestrian Link Easement Agreement Section 1.3. Rules of Interpretation. (a) This Agreement shall be interpreted in accordance with and governed by the laws of Minnesota. (b) The words "herein" and "hereof' and words of similar import, without reference to any particular section or subdivision, refer to this Agreement as a whole rather than any particular section or subdivision hereof. (c) References herein to any particular section or subdivision hereof are to the section or subdivision of this Agreement as originally executed. (d) Any titles of the several parts, articles and sections of this Agreement are inserted for convenience and reference only and shall be disregarded in construing or interpreting any of its provisions. ARTICLE II Representations and Warranties Section 2.1. Representations by the Authority and the City. The Authority and the City make the following representations as the basis for the undertakings on their parts herein contained: (a) The Authority and the City are public bodies, corporate and politic under the laws of Minnesota,each with the power to enter into this Agreement and carry out its obligations hereunder. (b) The persons executing this Agreement and related agreements and documents on behalf of the Authority and the City have the authority to do so and to bind the Authority and the City by their actions. 3 438026v1-2 RS230-60 Section 2.2. Representations and Warranties by the Developer. The Developer makes the following representations as the basis for the undertakings on its part herein contained: (a) The Developer is a Limited Liability Company , duly organized and in good standing under the laws of Minnesota and is not in violation of any provisions of its articles of organization or by-laws. The Developer has the power to enter into this Agreement and carry out its obligations hereunder. The persons executing this Agreement and related agreements and documents on behalf of the Developer have the authority to do so and to bind the Developer by their actions. (b) Followin g conveyance of the Development Property to the Developer, the Developer will construct, operate and maintain the Minimum Improvements on the Development Property in substantial accordance with the terms of this Agreement, the Construction Plans and all local, State and federal laws and regulations, including, but not limited to, environmental, zoning, building code and public health laws and regulations. (c) The Developer will apply for and use its best efforts to obtain, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, the requirements of all applicable local, State and federal laws and regulations that must be obtained or met before the Minimum Improvements may be lawfully constructed or used for their intended purpose. (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 or any restriction or any evidence 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. ARTICLE III Sale of Property; Minimum Market Value Section 3.1. Purchase of Property by Builder. The Authority and the City agree to sell the Development Property to Developer and the Developer agrees to purchase the Development Property from the Authority and the City in an "as-is" condition. The Authority and the City agree to convey the Development Property to the Developer by or more quit claim deeds in the general form of the Property Deed attached hereto as Exhibit E. The deeds to the Developer will contain the right of reverter required in Section 6.3. The purchase price for the Development Property,payable at Closing, will be One Dollar($1.00) ("Purchase Price"). Section 3.2. Title and Examination. As soon as reasonably possible after execution of this Contract for Private Development by both parties, 4 43802602 RS230-60 (a) The Authority and the City shall surrender any abstract of title and a copy of any owner's title insurance policy for the Development Property, if in their possession or control, to Developer or to Developer's designated title service provider; and (b) Within 30 days of execution of this Agreement by both parties, Developer shall obtain the title evidence determined necessary or desirable by Developer or Developer's lender, including but not limited to title searches, title examinations, abstracting, a title insurance commitment or an attorney's title opinion, at Developer's selection and cost, and provide a copy to the Authority and the City. The Developer shall have 2 0 days from the date it receives such title evidence to raise any objections to title it may have. Objections not made within such time will bed deemed Y Objections ee ed waived. The Authority and the City shall have 90 days from the date of such objection to effect a cure; provided, however, that the Authority and the City shall have no obligation to cure any objections, and may inform Developer of such. The Developer may then elect to close notwithstanding the uncured objections or declare this Agreement null and void, and the parties will thereby be released from any further obligation hereunder. Section 3.3. Taxes and Special Assessments. Real estate taxes will be prorated between the Authority and the City, as vendors, and Developer, as vendee, as of the date of closing. The Authority and the City will pay all special assessments levied prior to the date of closing. Section 3.4. Soil Conditions and Hazardous Wastes. The Developer acknowledges that the Authority and the City make no representations or warranties as to the conditions of the soils on the Development Property, its fitness for the construction of improvements or any other purpose for which the Developer may use the Development Property, or regarding the presence of hazardous wastes on the Development Property. The Authority and the City will allow reasonable access to the Development Property for the Developer to conduct such tests regarding soils conditions and hazardous wastes as the Developer may desire. Permission to enter the Development Property to conduct such tests must be given in writing under reasonable terms and conditions established by the Authority and the City. Section 3.5. Site Clearance and Subdivision. The Authority and the City will be responsible for clearance of all buildings as required to prepare the Development Property for development and securing a lawful subdivision, making the Development Property a legally subdivided lot. All other site preparation is the responsibility of Developer. Section 3.6. Other Preconditions to Closing. Closing may not take place until: (a) the Authority and the City are satisfied that the Project is in all respects in full compliance with the Preliminary Plans contained in Exhibit B.-; (b) the Developer has demonstrated to the satisfaction of the Authority and the City that it has secured financing adequate to construct the Minimum Improvements; 5 438026v12 RS230-60 (c) the Authority and the City have completed subdivision of the CITY/AUTHORITY Property, creating the Development Property as a separate parcel of record.-; (d) the Authority and the City have conducted all hearings and proceedings and have made findings required by law as condition to conveyance of the Development Property and approval of this Agreement, all in the absolute and sole discretion of the City and the Authority:; and (e) Developer has secured all land use permits and approvals required for development of its project and construction of the Minimum Improvements including, but not limited to, approval of the Construction Plans. Section 3.7. Closing. Closing must take place on or before 2014 g g P 2014, ("Closing Date") or such other date as may be agreed to by the Developer, the Authority and the City in writing. Section 3.8. Closing Costs. The Developer will pay: (a) the closing fees charged by its title insurance company or other closing agent, if any, utilized to close the transaction for the Developer; (b) title services chosen by the Developer pursuant to Section 3.2 above, including the premium for title insurance policy, if any, and (c) the recording fees for the Agreement and the Property Deed. The Authority and the City will pay all other fees normally paid by sellers, including (a) any transfer taxes, and (b) fees and charges related to the filing of any instrument required to make title marketable. Each party shall pay its own attorney fees. Section 3.9. Sewer and Water. The Authority and the City warrant that city water is available at the lot line and city sewer is available at the curb of the Development Property. Section 3.10. ISTS Disclosure. The Authority and the City are not aware of any individual sewage treatment system on the Development Property. Developer is responsible for all costs of removing any individual sewage treatment system that may be discovered on the Development Property. Section 3.11. Well Disclosure. The knowledge of the Authority and the City of wells on the Development Property is disclosed in Exhibit E. Section 3.12. Easement Agreement. At closing the parties shall execute in recordable form the Parking, Access and Pedestrian Link Easement Agreement attached hereto as Exhibit F. 6 438026v4-2 RS230-60 ARTICLE IV Construction of Minimum Improvements Section 4.1. Construction of Minimum Improvements. If the Developer purchases the Development Property, the Developer agrees that it will construct the Minimum Improvements on the Development Property in accordance with the Construction Plans. The Developer recognizes that it is because the Developer has agreed to construct the Minimum Improvements that the Authority and the City are willing to offer the assistance outlined in this Agreement. The Developer acknowledges that, in addition to the requirements of this Agreement, construction of the Minimum Improvements will necessitate compliance with other reviews and approvals by the City and the Authority and possibly other governmental agencies and agrees to submit all applications for and pursue to their conclusion all other approvals needed prior to constructing the Minimum Improvements. Developer will secure all required permits and pay all permit and development fees and charges for the Minimum Improvements, except that: a) Developer will not be required to pay the dedication fee for units constructed for memory care and care suite units which are estimated to be 30 units and b) sewer availability charges (SAC) charged to Developer will be reduced by any credits for SAC charges given in recognition of previously existing development on the CITY/AUTHORITY Property less any such credits needed to pay SAC charges for the Activity Center. In addition to any other standards of construction imposed by the City or the Authority, the Minimum Improvements shall also include the following and meet the following standards: (a) As a part of Minimum Improvements, Developer shall construct, at Developer's expense, a surface level, climate controlled, walkway connection (the "Pedestrian Link") between the Developer's Senior Center and the City's Activity Center as depicted on Exhibit D. (b) As a part of Minimum Improvements, Developer shall construct all parking lots and landscaping shown in Exhibit D on both the Development Property and the CITY/AUTHORITY Property. Developer shall prepare Construction Plans and specifications for such parking lots and landscaping in consultation with the Authority and the City and subject to approval by the City. Bidding documents for parking lots and landscaping shall be designed to allow determination with reasonable certainty the portion of construction costs allocable to the City for that part of the parking lot improvements and landscaping lying within CITY/AUTHORITY Property that is not included in the Development Property. Upon completion of parking lot and landscaping improvements in accordance with approved construction documents, Developer will invoice City for the City's share of such costs, which the City will pay to Developer within thirty (30) days of receipt of an invoice therefor, together with such other documentation of costs as the City may reasonably require. The Developer and the CITY and the AUTHORITY agree to development of a long-term maintenance agreement which will lay out payments and expectations for site improvements such as underground stormwater system, landscaping, parking, and other items mutually beneficial to each party. The City applied for a Livable Communities Development Account (LCDA) grant in 2011 and has received requested funding, which will be used, in part, to benefit the Minimum Improvements. Specifically,the LCDA grant provides $200,000 for an on-site stormwater detention 7 438026v42 RS230-60 system and associated engineering which will reduce the Developer's costs associated with the construction of the Minimum Improvements, so long as the work performed is consistent with the rules and regulations of the LCDA grant program. The City will not reimburse stormwater design and construction costs not eligible for reimbursement under the LCDA grant program and will not reimburse for costs in excess of the grant allocation. Section 4.2. Construction Plans. Within days after execution of this Agreement, the Developer shall submit dated Construction Plans to the Authority and the City. The Construction Plans shall provide for the construction of the Minimum Improvements and shall be in substantial conformity with the Preliminary Plans and this Agreement. Section 4.3. Commencement and Completion of Construction. Subject to Unavoidable Delays, the Developer shall commence construction of the Minimum Improvements no later than November 30, 2014. Subject to Unavoidable Delays, the Developer shall have substantially completed the construction of the Minimum Improvements no later than December 31, 2015. All work with respect to the Minimum Improvements to be constructed or provided by the Developer on the Development Property shall be in conformity with the Construction Plans. Section 4.4. Certificate of Completion and Release of Forfeiture. After substantial completion of the Minimum Improvements in accordance with the Construction Plans and all terms of this Agreement, the Authority and the City will furnish the Developer with a Certificate of Completion and Release of Forfeiture in the form attached hereto as Exhibit C. Such certification by the Authority and the City shall be a conclusive determination of satisfaction and termination of the agreements and covenants in this Agreement with respect to the obligations of the Developer to construct the Minimum Improvements. The Certificate of Completion and Release of Forfeiture shall only be issued after issuance of a certificate of occupancy by the City. The Certificate of Completion and Release of Forfeiture provided for in this section 4.4 shall be in such form as will enable it to be recorded in the proper County office for the recordation of deeds and other instruments pertaining to the Development Property. Section 4.5. Required Insurance. (a)The Developer agrees to provide and maintain at all times during the process of constructing the Minimum Improvements and, from time to time at the request of the Authority,furnish the Authority with proof of payment of premiums on: (i) Builder's risk insurance, written on the so-called `Builder's Risk — Completed Value Basis," in an amount equal to 100 percent of the insurable value of the Minimum Improvements at the date of completion, and with coverage available in non- reporting form on the so called"all risk"form of policy; (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 $1,000,000 for each occurrence (to accomplish the above—required limits, an umbrella excess liability policy may be used); and 8 438026v1-2 RS230-60 (iii) Workers' compensation insurance,with statutory coverage. The policies of insurance required pursuant to clauses (i) and(ii)above shall be in form and content reasonably satisfactory to the Authority and shall be placed with financially sound and reputable insurers licensed to transact business in Minnesota. The policy of insurance delivered pursuant to clause (i) above shall contain an agreement of the insurer to give not less than 30 days' advance written notice to the Authority in the event of cancellation of such policy or change affecting the coverage thereunder. (b) Upon completion of construction of the Minimum Improvements, the Developer shall maintain, or cause to be maintained, at its cost and expense, and from time to time at the request of the Authori ty 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, including (without limiting the generality of the foregoing) fire, extended coverage, vandalism and malicious mischief, heating system explosion, water damage, demolition cost, debris removal, collapse and flood, in an amount not less than the full insurable replacement value of the Minimum Improvements or the Minimum Market Value, whichever is greater. No policy of insurance shall be so written that the proceeds thereof will produce less than the minimum coverage required by the preceding sentence, by reason of coinsurance provisions or otherwise, without the prior consent thereto in writing by the Authority. The term "full insurable replacement value" shall mean the actual replacement cost of the Minimum Improvements and shall be determined from time to time at the request of the Authority, but not more frequently than once every three years, by an insurance consultant or insurer, selected and paid for by the Developer and approved by the Authority; and (ii) Such other insurance, including worker's 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; provided that the Developer may be self-insured with respect to all or any part of its liability for worker's compensation. (c) All insurance required in this Section 4.5 shall be taken out and maintained in responsible insurance companies selected by the Developer that are authorized under the laws of Minnesota to assume the risks covered thereby. The Developer agrees to deposit annually with the Authority copies of 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 Section 4.5, each policy shall contain a provision that the insurer shall not cancel nor materially modify it without giving written notice to the Developer and the Authority at least 30 days before the cancellation or modification becomes effective. Not less than 15 days prior to the expiration of any policy, the Developer shall furnish the Authority evidence satisfactory to the Authority that the policy has been renewed or replaced by another policy conforming to the provisions of this Section 4.5, or that there is no necessity therefore under the terms of this 9 438026v42 RS230-60 Agreement. 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. ARTICLE V Business Subsidy Act Requirements Section 5.1. Business Subsidy. This Agreement provides assistance for housing and is therefore not subject to the requirements of Minnesota Statutes, Sections 116J.993 to 116J.995. J q , ARTICLE VI Events of Default Section 6.1. Events of Default Defined. Each and every one of the following shall be an Event of Default under this Agreement: (a) Failure by the Authority or the City or the Developer to proceed to closing on the Development Property after compliance with or the occurrence of all conditions precedent to closing; (b) Failure by the Developer to commence and complete construction of the Minimum Improvements pursuant to the terms, conditions and limitations of this Agreement, including the timing thereof,unless such failure is caused by an Unavoidable Delay; (c) Failure by the Developer to pay real estate taxes or special assessments on the Development Property or Minimum Improvements on the Development Property as they become due; (d) Failure by either party to observe or perform any material covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. Section 6.2. Remedies on Default. Whenever any Event of Default referred to in section 6.1 of this Agreement occurs, the non-defaulting party may take any one or more of the following actions after providing 30 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 30 days or, if the Event of Default is by its nature incurable within 30 days, the defaulting party does not provide assurances to the non- defaulting party reasonably satisfactory to the non-defaulting party that the Event of Default will be cured and will be cured as soon as reasonably possible: 10 438026v1-2 RS230-60 (a) Suspend its performance under this Agreement, including refusing to close on the Development Property, until it receives assurances from the defaulting party, deemed adequate by the non-defaulting party, that the defaulting party will cure its default and continue its performance under this Agreement; (b) Terminate or rescind this Agreement; (c) If the default occurs prior to completion of the Minimum Improvements, the Authority and the City may withhold the Certificate of Completion and Release of Forfeiture; (d) If the default occurs prior to issuance of the Certificate of Completion and Release of Forfeiture, revest title in the name of the Authority and the City pursuant to Section 6.3 of this � ty typ Agreement; and (e) Take whatever action, including legal or administrative action, that may appear necessary or desirable to the non-defaulting party to collect any payments due under this Agreement, or to enforce performance and observance of any obligation, agreement, or covenant of the defaulting party under this Agreement. Section 6.3. Revesting Interest in the Authority and the City upon Happening of Event of Default Subsequent to Conveyance to Developer. In the event that subsequent to conveyance of the Development Property to the Developer and prior to the issuance of a Certificate of Completion and Release of Forfeiture for the Minimum Improvements: (a) the Developer, subject to Unavoidable Delays, fails to begin construction of the Minimum Improvements in conformity with this Agreement and such failure to begin construction is not cured within 30 days after written notice from the Authority and the City to the Developer to do so;or (b) subject to Unavoidable Delays, the Developer, after commencement of the construction of the Minimum Improvements, fails to carry out its obligations with respect to the completion of construction of the Minimum Improvements(including the nature and the date for the completion thereof), or abandons or substantially suspends construction work, and any such failure, abandonment, or suspension shall not be cured, ended, or remedied within 30 days after written demand from the Authority and the City to the Developer to do so; or (c) the Developer shall fail to pay real estate taxes or assessments on the Development Property when due, or shall place thereon any encumbrance or lien unauthorized by this Agreement, or shall suffer any levy or attachment to be made, or any materialmen's or mechanic's lien, or any other unauthorized encumbrance or lien to attach, and such taxes or assessments shall not have been paid, or the encumbrance or lien removed or discharged or provision satisfactory to the Authority and the City made for such payment, removal, or discharge, within 30 days after written demand by the Authority and the City to do so or such longer period, not to exceed 60 days, as may reasonably be necessary to remove said lien or encumbrance; provided, that if the Developer shall first notify the Authority and the City of their intention to do so, they may in good faith contest any mechanics' 11 438026v2 RS230-60 or other lien to remain undischarged and unsatisfied durin g the period of such contest and any appeal, but only if the Developer provides the Authority and the City with a bank letter of credit or other security in the amount of the lien,in a form satisfactory to the Authority and the City pursuant to which the bank will pay to the Authority and the City the amount of any lien in the event the lien pY ty ty y is finally determined to be valid or, as an alternative to such forms of security, has made a deposit with the district court in the manner provided in Minnesota Statutes, section 514.10. During the course of such contest, the Developer shall keep the Authority and the City informed respecting the status of such defense; then the Authority and the City shall re-enter C ty s a 1 have the right to re enter and take possession of the Development Property and to terminate and revest in the Authority and the Ci ty the interest of the Developer in the Development Property; provided, however, that any exercise by the Authority and the City of their rights or remedies hereunder shall always be subject to and limited by, and shall not defeat, render invalid or limit in any way the lien of any mortgage or other Y Y Y encumbrance specifically and previously authorized by the Authority and the City in writing under this Agreement or any rights or interests provided in this Agreement for the protection of the holders of an approved encumbrance. Section 6.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to the parties is intended to be exclusive of any other available remedy or remedies, but each and every Y Y � ry 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 Y P Y time and as often as may be deemed expedient. In order to entitle the Authority and the City or the Developer to exercise any remedy reserved to them, it shall not be necessary to give notice, other than such notice as may be required in Article VIII of this Agreement. Section 6.5. No Additional Waiver Implied by One p y O Waiver. In the event any covenant or 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. ARTICLE VII Restrictions on Sale; Subordination Section 7.1. Restrictions on Sale or Assignment. The Developer represents and agrees that its purchase of the Development Property and its other undertakings pursuant to this Agreement, are, and will be used, for the purpose of development of the Development Property and not for speculation in land holding. The Developer represents and agrees that: (a) Prior to issuance of the Certificate of Completion and Release of Forfeiture for the Minimum Improvements, except security for, and only for, the purpose of obtaining financing necessary to enable the Developer to purchase the Development Property, perform its 12 438026vU2 RS230-60 obligations with respect to 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 in any mode or form of or with respect to the Minimum Improvement or the Development Property or any part thereof or any interest therein, or any contract or agreement to do the same, without the prior written approval of the Authority unless the Developer remains liable and bound by this Agreement in which event the Authority's approval is not required. Any such Sale shall be subject to the provisions of this Agreement. (b) In the event the Developer, upon Sale of the Development Property or any portion thereof, seeks to be released from its obligations under this Agreement as to the portions of the Minimum Improvements or Development Property that is subject to the Sale, the Authority shall be entitled to require, except as otherwise provided in the Agreement, as conditions to any such Sale that: (i) 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 Developer as to the portion of the Minimum Improvements or Development Property subject to the Sale. (ii) Any proposed transferee, by instrument in writing satisfactory to the Authority and in form recordable among the County 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 Minimum Improvements or Development Property subject to the Sale 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 to, or any other successor in interest whatsoever of, the Minimum Improvements or Development 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 Development 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 Sale of, or change with respect to, ownership in the Minimum Improvements or 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 or controls provided in or resulting from this Agreement with respect to the Minimum Improvements or Development Property that the 13 438026v4-2 RS230-60 Authority would have had, had there been no such Sale. In the absence of specific written agreement by the Authority to the contrary, no Sale 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 Sale of any interest in this Agreement or the Minimum Improvements or Development Property governed by this Article VII, shall be in a form reasonably satisfactory to the Authority. (c) Any notice of rejection shall contain detailed reasons for the rejection. The Authority's approval of any Sale shall not be unreasonably withheld. In the event the foregoing Y PP Y Y g g conditions are satisfied, the Developer shall be released from its obligation under this Agreement as to the portion of the Minimum Improvements or Development Property that is subject to the Sale. (d) After issuance of the Certificate of Completion and Release of Forfeiture for the Minimum Improvements, the Developer may transfer or assign any portion of the Development Property or the Developer's interest in this Agreement for which a Certificate of Completion and Release of Forfeiture has been issued, without the prior written consent of the Authority. The Developer shall submit to the Authority written evidence of any such transfer or assignment, including the transferee or assignee's express assumption of the Developer's obligations unde r this Agreement. If the Developer fails to provide such evidence of transfer and assumption, the Developer shall remain bound by all it obligations under this Agreement. Section 7.2 Subordination. The Authori t and the City agree ree that, upon request by the Developer, the Authority and the City will subordinate their interests under this Agreement to the mortgage lien for a construction and/or permanent loan made with respect to the Development Property and the Minimum Improvements. Such subordination shall be evidenced by an agreement in form and substance satisfactory to the Authority and the City. ARTICLE VIII Additional Provisions Section 8.1. Conflict of Interests., Representatives Not Individually Liable. No officer, official, or employee of the Authority or the City shall have any personal financial interest, direct or indirect, in this Agreement, nor shall any such officer, official, or employee participate in any decision relating to the Agreement that affects his or her personal financial interests, directly or indirectly. No officer, official, or employee of the Authority or the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach or for any amount that may become due or on any obligation under the terms of this Agreement. 14 438026v12 RS230-60 Section 8.2. Restrictions on Use. The Developer, for itself and its successors and assigns, agrees to devote the Development Property and Minimum Improvements only to such land use or uses as may be permissible under the City's land use regulations. Section 8.3. Provisions Not Merged With Deed. None of the provisions of this Agreement is intended to or shall be merged by reason of delivery of the Property Deed and the Property Deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. Section 8.4. Notices and Demands. Except as otherwise expressly provided in this Agreement, any notice, demand, or other communication under the Agreement or any related document by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified United States mail, postage prepaid, return receipt requested, or delivered personally to: (a) in the case of the Authority: Rosemount Port Authority 2875— 145th Street W. Rosemount,MN 55068 Attn: Executive Director (b) in the case of the Developer: (c) in the case of the City: City of Rosemount 2875— 145th Street W. Rosemount, MN 55068 Attn: City Administrator 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 8.4. Section 8.5. Counterparts. This Agreement may be executed in any number of counterparts,each of which shall constitute one and the same instrument. Section 8.6. Disclaimer of Relationships. The Developer acknowledges that nothing contained in this Agreement nor any act by the Authority or the City or the Developer shall be deemed or construed by the Developer or by any third person to create any relationship of third-party beneficiary, principal and agent, limited or general partner, or joint venture between or among the Authority or the City and the Developer. *********************** 15 438026v42 RS230-60 IN WITNESS WHEREOF, the Authority, the City and the Developer have caused this Agreement to be duly executed in their names and behalves on or as of the date first above written. ROSEMOUNT PORT AUTHORITY By: ,Chair By: Dwight Johnson,Executive Director STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument as acknowledged before me this day of , 2014, by and Dwight Johnson, the Chair and Executive Director, respectively, of the Rosemount Port Authority, a public corporation under the laws of Minnesota, on behalf of the public corporation. Notary Public 16 438026v-1-2 RS230-60 CITY OF ROSEMOUNT By: William Droste,Mayor And: Amy Domeier, City Clerk STATE OF ) ss. COUNTY OF ) The foregoing instrument as acknowledged before me this g g g day of , 2014, by William Droste and Amy Domeier, Mayor and City y y ty Clerk, respectively, of the City of Rosemount, a municipal corporation under the laws of Minnesota,rp nnesota, on behalf of the municipal corporation. Notary Public 17 438026v4-2 RS230-60 DEVELOPER By: Its: STATE OF ) ss. COUNTY OF ) The foregoing instrument was executed this day of , 2014, by the of , on behalf of the Notary Public 18 438026v4-2 RS230-60 EXHIBIT A LEGAL DESCRIPTION OF CITY/AUTHORITY PROPERTY The CITY/AUTHORITY Property is located in Dakota County, Minnesota, and is legally described as follows: A-1 438026v4-2 RS230-60 EXHIBIT B PRELIMINARY PLAN DOCUMENTS B-1 438026v42 RS230-60 EXHIBIT C FORM OF CERTIFICATE OF COMPLETION AND RELEASE OF FORFEITURE WHEREAS, the Rosemount Port Authority and the City of Rosemount (the"Grantors"), by a deed recorded in the office of the County Recorder in Dakota County, Minnesota, as Document No. , has conveyed to , a under the laws of the State of (the "Grantee"), the following described land in County of Dakota and State of Minnesota,to-wit: and WHEREAS, said deed was executed pursuant to that certain Contract for Private Development by and between the Grantors and the Grantee dated the day of , 2014 and recorded in the office of the County Recorder in Dakota County, Minnesota, as Document No. , which Contract for Private Development contained certain covenants and restrictions regarding completion of the Minimum Improvements; and WHEREAS, said Grantee has performed said covenants and conditions in a manner deemed sufficient by the Grantors to permit the execution and recording of this certification. NOW, THEREFORE, this is to certify that all construction of the Minimum Improvements specified to be done and made by the Grantee has been completed and the covenants and conditions in the Contract for Private Development have been performed by the Grantee therein and that the provisions for forfeiture of title and right to re-entry for breach of condition subsequent by Grantors is hereby released absolutely and forever, and the County Recorder in Dakota County, Minnesota is hereby authorized to accept for recording and to record the filing of this instrument, to be a conclusive determination of the satisfactory termination of the covenants and conditions relating to completion of the Minimum Improvements. ********************** 438026v-i-2 RS230-60 C-1 Dated: ,201^. ROSEMOUNT PORT AUTHORITY By: , Chair By: Dwight Johnson, Executive Director STATE OF MINNESOTA ) ss. COUNTY OF DAKOTA ) The foregoing instrument as acknowledged before me this day of , 201 , by and Dwight Johnson, Chair and Executive Director, respectively, of the Rosemount Port Authority, a public corporation under the laws of Minnesota, on behalf of the public corporation. Notary Public CITY OF ROSEMOUNT By: William Droste,Mayor And: Amy Domeier, City Clerk STATE OF MINNESOTA ) ss. COUNTY OF DAKOTA ) The foregoing instrument as acknowledged before me this day of , 201_, by William Droste and Amy Domeier, Mayor and City Clerk, respectively, of the City of Rosemount, a municipal corporation under the laws of Minnesota, on behalf of the municipal corporation. Notary Public 438026v12 RS230-60 C_2 EXHIBIT D SKETCH OF PROPERTY D-1 438026x42 RS230-60 EXHIBIT E FORM OF PROPERTY DEED Quit Claim Deed STATE DEED TAX DUE HEREON: $ Date: FOR VALUABLE CONSIDERATION the Rosemount Port Authority ty and the City ty of Rosemount, emount, Minnesota, both municipal corporations under the laws of the State of Minnesota, Grantors, hereby convey and quitclaim to , a under the laws of , Grantee,real property Y in Dakota County,Minnesota, described as follows: (if more space is needed,continue on back) together with all hereditaments and appurtenances. This deed is subject to that certain Contract for Private Development between Grantors and Grantee, dated , 20_(the "Contract"), recorded , 20_, in the office of the Dakota County Recorder/Registrar of Titles as Document No. . The Contract provides that the Grantee's rights and interest in the real property described above are subject to the Grantors' right to re- enter and revest in Grantors title to the Property under conditions specified therein, including but not limited to termination of the Grantors' right to re-enter and revest upon issuance of a Certificate of Completion as defined in the Agreement. OThe Seller certifies that the seller does not know of any wells on the described real property. OA well disclosure certificate accompanies this document. OI am familiar with the property described in this instrument and I certify that the status and number of wells on the described real property have not changed since the last previously filed well disclosure certificate. E-1 438026v2 RS230-60 ROSEMOUNT PORT AUTHORITY By , Chair By Dwight Johnson, Executive Director STATE OF MINNESOTA ss. COUNTY OF HENNEPIN The foregoing was acknowledged before me this day of , 2014, by and Dwight Johnson, the Chair o , he Cha r and Executive Director of the Rosemount Port Authority, a public corporation organized under the laws of the State of Minnesota, on behalf of the public corporation, Grantor. NOTARIAL STAMP OR SEAL(OR OTHER TITLE OR RANK) SIGNATURE OF PERSON TAKING ACKNOWLEDGMENT E-2 438026v2 RS230-60 CITY OF ROSEMOUNT By: William Droste, Mayor And: Amy Domeier, City Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) The foregoing instrument as acknowledged before me this day of 2014 Y 2014, by William Droste and Amy Domeier, Mayor and City Clerk, respectively, of the City of Rosemount, a municipal corporation under the laws of Minnesota, on behalf of the municipal corporation. NOTARIAL STAMP OR SEAL(OR OTHER TITLE OR RANK) SIGNATURE OF PERSON TAKING ACKNOWLEDGMENT Check here if part or all of the land is Registered(Torrens)❑ Tax Statements for the real property described in this instrument should be sent to (include name and address of Grantee): This instrument drafted by: Kennedy & Graven, Chartered 470 U. S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 E-3 438026v2 RS230-60 EXHIBIT F FORM OF PARKING,ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT