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HomeMy WebLinkAbout02-23-2022 Regular MeetingCITY OF FALCON HEIGHTS Regular Meeting of the City Council City Hall 2077 West Larpenteur Avenue AGENDA February 23, 2022 at 7:00 P.M. NOTE: THIS MEETING WILL BE HELD BY WEB CONFERENCE* A.CALL TO ORDER: B.ROLL CALL: ANDREWS ___ GUSTAFSON____ LEEHY___ MEYER ___ WEHYEE___ STAFF PRESENT: THONGVANH____ C.APPROVAL OF AGENDA D.PRESENTATION E.APPROVAL OF MINUTES: 1.January 26, 2022 City Council Regular Minutes F.PUBLIC HEARINGS: G.CONSENT AGENDA: 1.General Disbursements through: 2/11/22 $319,746.63 Payroll through: 2/15/21 $70,377.13 Payroll Withholdings: $62,837.20 Wire Payments: $138,324.72 2.Approve City License(s) 3.Accept the Resignation of Assistant to the City Administrator, Vandara Thammavongsa 4.Appoint Megan Pavek as Assistant to the City Administrator 5.Establish Electronic Transfer Policy H: POLICY ITEMS: 1.Approve Assignment and Assumption of Amended and Restated Development Agreements for Falcon Heights Town Square Apartments and Falcon Heights Town Square Senior Apartments I. INFORMATION/ANNOUNCEMENTS: J.COMMUNITY FORUM: Please limit comments to 3 minutes per person. Items brought before the Council will be referred for consideration. Council may ask questions for clarification, but no council action or discussion will be held on these items. K.ADJOURNMENT: *You can participate in the meeting by clicking the following Zoom link: https://us02web.zoom.us/j/89690260531 Toll Free Number: 1-877-853-5247 1-888-788-0099 Webinar ID: 896 9026 0531 BLANK PAGE  1 | Page CITY OF FALCON HEIGHTS Regular Meeting of the City Council City Hall 2077 West Larpenteur Avenue MINUTES January 26, 2022 at 7:00 P.M. A. CALL TO ORDER: 7:00 PM B. ROLL CALL: ANDREWS _X__ GUSTAFSON__X__ LEEHY_X__ MEYER _X__ WEHYEE_X_ STAFF PRESENT: THONGVANH_X_ C. APPROVAL OF AGENDA D. PRESENTATION 1. Ramsey County Commissioner Trista MastaCastillo County Commissioner MastaCastillo and the Council discussed Ramsey County initiatives, programs and updates. E. APPROVAL OF MINUTES: 1. January 5, 2022 City Council Workshop Minutes 2. January 12, 2022 City Council Regular Minutes Motion by Council Member Andrews to approve the meeting minutes. Approved, 5-0. F. PUBLIC HEARINGS: G. CONSENT AGENDA: 1. General Disbursements through: 1/15/22 $79,579.28 Payroll through: 1/15/21 $19,469.05 2. Approve City License(s) 3. City Attorney Fee Adjustment 4. Assistant to the City Administrator Pay Adjustment 5. Interim City Administrator Administrator Thongvanh clarified that Vandara Thammavongsa was receiving a pay adjustment per Item 4, and that Tim Pittman was being recommended for the role of Interim City Administrator. This would require a pay adjustment which would be similar to when Pittman filled in as Interim Administrator in the past. Council Member Wehyee asked if Pittman was being recommended because the City was unable to secure an Interim Administrator from the League of Minnesota Cities (LMC). 1 of 66 2 | Page Administrator Thongvanh agreed. They had anticipated working with a retired administrator through the LMC but some issues with PERA arose and appointing Pittman worked better with timeline we had. Motion by Council Member Leehy to approve the Consent Agenda. Approved; 5-0. H: POLICY ITEMS: I. INFORMATION/ANNOUNCEMENTS: All council members thanked Administrator Thongvanh for his service and wished him well in future endeavors. Council Member Wehyee stated that the Planning Commission met this month and welcomed a few new commission members. There is also an open vacancy and he encouraged community members to apply. Administrator Thongvanh gave a brief overview of the hiring process/timeline for the new administrator. Staff conducted the first round of interviews today. The community panel interviews will take place tomorrow. He also thanked the council members, staff, and residents for being welcoming and providing this opportunity. J. COMMUNITY FORUM: Please limit comments to 3 minutes per person. Items brought before the Council will be referred for consideration. Council may ask questions for clarification, but no council action or discussion will be held on these items. Tony Fisher, former council member, thanked Thongvanh for his community leadership and guidance over the past seven years. Pamela Harris, former council member, stated that Thongvanh had graciously addressed numerous challenges through his employment with the City. She commended many of his professional traits and his communication style. K. ADJOURNMENT: 8:07 PM _______________________________ Randall C. Gustafson, Mayor Dated this 23rd day of February, 2022 _________________________________ Sack Thongvanh, City Administrator 2 of 66 REQUEST FOR COUNCIL ACTION City of Falcon Heights, Minnesota __________________________ Item General Disbursements and Payroll Amended Description General Disbursements through: 2/11/22 $319,746.63 Wire Payments: $138,324.72 Payroll Withholdings: $62,837.20 Payroll through: 2/15/22 $70,377.13 Budget Impact The general disbursements and payroll are consistent with the budget. Attachment(s) • General Disbursements and Payroll Action(s) Requested Staff recommends that the Falcon Heights City Council approve general disbursements and payroll. Meeting Date February 23, 2022 Agenda Item Consent G1 Attachment General Disbursements and Payroll Submitted By Roland Olson, Finance Director 3 of 66 BLANK PAGE  4 of 66 5 of 66 6 of 66 7 of 66 8 of 66 9 of 66 10 of 66 11 of 66 12 of 66 13 of 66 14 of 66 15 of 66 16 of 66 17 of 66 18 of 66 19 of 66 20 of 66 21 of 66 22 of 66 23 of 66 24 of 66 ITEM FOR DISCUSSION City of Falcon Heights, Minnesota __________________________ Item Approval of City License(s) Description The following individuals/entities have applied for a Single Family Rental Dwelling License for 2022. Staff have received the necessary documents for licensure. 1. Greg Rogers – 1947 Autumn 2. Rachael Witt – 1900 Tatum Street 3. Ralph Peterson – 1865 Hamline Ave The following individuals/entities have applied for a Tree Trimming/Removal Contractor License for 2022. Staff have received the necessary documents for licensure. 1. Upper Cut Tree Service 2. Expert Tree Budget Impact Attachment(s) Action(s) Requested Staff recommends approval of the City license applications contingent on background checks and fire inspections as required. Meeting Date February 23, 2022 Agenda Item Consent G2 Attachment N/A Submitted By Vandara Thammavongsa Assistant to the City Administrator 25 of 66 BLANK PAGE  26 of 66 REQUEST FOR COUNCIL ACTION City of Falcon Heights, Minnesota __________________________ Item Resignation of Assistant to the City Administrator Vandara Thammvongsa Description Assistant to the City Administrator Vandara Thammvongsa has submitted a “Letter of Resignation”. Vandara’s last day will be February 24th. The work and dedication Vandara has provided and shown to the City of Falcon Heights cannot be measured. Vandara has gone above and beyond the call of duty over the year, which we will missed greatly. We wish her the best on her future endeavors and the next chapter in her career with the State of Minnesota. Budget Impact N/A Attachment(s) • Resolution 22-04 Accepting the Resignation of Assistant to the City Administrator Vandara Thammvongsa Action(s) Requested Staff would recommend approve of attached resolution to accept the resignation of Assistant to the City Administrator Vandara Thammvongsa. Meeting Date February 23, 2022 Agenda Item Consent G3 Attachment N/A Submitted By Sack Thongvanh, City Administrator 27 of 66 BLANK PAGE  28 of 66 29 of 66 BLANK PAGE  30 of 66 CITY OF FALCON HEIGHTS COUNCIL RESOLUTION February 23, 2022 No. 22-04 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - RESOLUTION ACCEPTING THE RESIGNATION OF ASSISTANT TO THE CITY ADMINISTRATOR VANDARA THAMMVONGSA FROM THE CITY OF FALCON HEIGHTS WHEREAS, the City Council appointed Vandara Thammvongsa on January 13, 2021 as the Assistant to the City Administrator; and WHEREAS, Vandara Thammvongsa submitted her letter of resignation with a last day in the office of February 24, 2022; NOW THEREFORE BE IT RESOLVED by the City Council of the City of Falcon Heights, Minnesota: 1. That the “Letter of Resignation” is accepted by the City Council of the City of Falcon Heights. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - -- - - - - Moved by: Approved by: ________________________ Randall C. Gustafson Mayor GUSTAFSON ____ In Favor Attested by: ________________________ MEYER Timothy Pittman ANDREWS ____ Against Interim City Administrator LEEHY WEHYEE 31 of 66 BLANK PAGE  32 of 66 REQUEST FOR COUNCIL ACTION City of Falcon Heights, Minnesota __________________________ Item Appoint Megan Pavek to Assistant to the City Administrator Description Assistant to the City Administrator Vandara Thammvongsa has submitted a “Letter of Resignation”. Vandara’s last day will be February 24th. The work and dedication Megan has provided and shown to the City of Falcon Heights cannot be measured. Megan has gone above and beyond the call of duty the last couple of months and now with the loss of the City Administrator and the Assistant to the City Administrator, her dedication will be need more than ever. Budget Impact Position funded for 2022. Attachment(s) • Resolution 22-05 Appointment of Megan Pavek to Assistant to the City Administrator Action(s) Requested Staff would recommend approve of attached resolution and appoint Megan Pavek as Assistant to the City Administrator effective immediately with a pay increase to $60,000 a year. Meeting Date February 23, 2022 Agenda Item Consent G4 Attachment N/A Submitted By Sack Thongvanh, City Administrator 33 of 66 BLANK PAGE  34 of 66 CITY OF FALCON HEIGHTS COUNCIL RESOLUTION February 23, 2022 No. 22-05 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - RESOLUTION APPOINTING MEGAN PAVEK TO THE POSITION OF ASSISTANT TO THE CITY ADMINISTRATOR FOR THE CITY OF FALCON HEIGHTS WHEREAS, Vandara Thammvongsa submitted her letter of resignation with a last day of employment on February 24, 2022; WHEREAS, thereafter the position was offer to current employee Megan Pavek; WHEREAS, the position was accepted by Megan Pavek; NOW THEREFORE BE IT RESOLVED by the City Council of the City of Falcon Heights, Minnesota: 1. Appoint Megan Pavek to the position of Assistant to the City Administrator, and 2. Authorize compensation of $28.85 per hour ($60,000/year), and 3. Megan will be put on six a (6) month probation. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - -- - - - - Moved by: Approved by: ________________________ Randall C. Gustafson Mayor GUSTAFSON ____ In Favor Attested by: ________________________ MEYER Timothy Pittman ANDREWS ____ Against Interim City Administrator LEEHY WEHYEE 35 of 66 BLANK PAGE  36 of 66 REQUEST FOR COUNCIL ACTION City of Falcon Heights, Minnesota __________________________ Item Electronic Fund Transfer Policy Description To establish an electronic fund transfer policy as recommended by our auditors. This policy recognizes that not all payments can be made by check. Payroll and payroll withholdings are almost always electronic fund transfers. Also investing the cities funds often require electronic purchasing as regulated by the City’s Investment Policy. Budget Impact N/A Attachment(s) • Electronic Fund Transfer Policy Action(s) Requested Staff recommends establishing the attached Electronic Transfer Policy. Meeting Date February 23, 2022 Agenda Item Consent G5 Attachment N/A Submitted By Roland Olson, Finance Director 37 of 66 BLANK PAGE  38 of 66 39 of 66 BLANK PAGE  40 of 66 REQUEST FOR COUNCIL ACTION City of Falcon Heights, Minnesota __________________________ Item Assignment and Assumption of Amended and Restated Development Agreement for Falcon Heights Town Square Apartments and Falcon Heights Town Square Senior Apartments Description Back in 2003 and 2004, the City of Falcon Heights executed the attached development agreements and issued TIF Notes for the Falcon Heights Town Square multifamily and senior apartment’s projects for 26 years. The development agreements and the TIF Notes are still in effect today. The developers, however, are selling those projects to new owners, and are closing those deals by the end of the month. This requires that the City consent to the assignments and assumptions of the development agreements and the TIF Notes at its upcoming meeting. Please note that this is a pretty routine and typical ask, and under Section 8.1 of the Development Agreement, the City agreed that it would make such an approval, “which approval shall not be unreasonably withheld or delayed.” Budget Impact N/A Attachment(s) • Resolution 22-06 Approving the Assignment and Assumption of Development Agreements and Tax Increment Financing Notes, and the Collateral Assignments • Assignment and Assumption of TIF Agreement – Falcon Heights Town Square Apartments • Assignment and Assumption of TIF Agreement – Falcon Heights Town Square Senior Apartments Action(s) Requested Staff would recommend approve of attached resolution and authorize the Mayor and Interim City Administrator to execute all necessary documents. Meeting Date February 23, 2022 Agenda Item Policy H1 Attachment N/A Submitted By Sack Thongvanh, City Administrator 41 of 66 BLANK PAGE  42 of 66 72693374v2 EXTRACT OF MINUTES OF A MEETING OF THE CITY COUNCIL OF THE CITY OF FALCON HEIGHTS, MINNESOTA Pursuant to due call and notice thereof, a regular or special meeting of the City Council of the City of Falcon Heights, Ramsey County, Minnesota, was duly held at the City Hall in said City on February 23, 2022, at 7:00 P.M. The following members were present: and the following were absent: Member _______________ introduced the following resolution and moved its adoption: RESOLUTION NO. 22-06 RESOLUTION APPROVING THE ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENTS AND TAX INCREMENT FINANCING NOTES, AND THE COLLATERAL ASSIGNMENTS THEREOF A. WHEREAS, the City of Falcon Heights (the "City") entered into: (i) a Development Agreement, dated July 18, 2003, with Town Square Senior Apartments LLC (the "Senior Developer"), a Minnesota limited liability company (the "Senior Development Agreement"); and (ii) a Development Agreement dated July 18, 2003, a First Amendment to Development Agreement dated July 18 2003, and an Amended and Restated Development Agreement, dated April 28, 2004, (the "Multifamily Development Agreement") with Falcon Heights Town Square Limited Partnership, a Minnesota limited partnership (the "Multifamily Developer"); and B. WHEREAS, related and pursuant to the Senior Development Agreement, the City issued its Taxable Tax Increment Revenue Note (Falcon Heights Town Square Project-Senior TIF Note), dated December 29, 2003, in the original principal amount of $728,000 (the "Senior TIF Note"), to the Senior Developer; and related and pursuant to the Multifamily Development Agreement, the City issued its Taxable Tax Increment Revenue Note (Falcon Heights Town Square Project-Multifamily TIF Note), dated April 28, 2004, in the original principal amount of $1,586,126 (the "Multifamily TIF Note"), to the Multifamily Developer; and C. WHEREAS, the Senior Developer is selling and conveying the property subject to the Senior Development Agreement to Tilden FP Falcon Heights Senior Apartments, LLC, (the "Senior Assignee") and the Multifamily Developer is selling and conveying the property subject to the Multifamily Development Agreement to Tilden FP Falcon Heights Apartments, LLC, (the "Multifamily Assignee"); and D. WHEREAS, related to the conveyance by the Senior Developer as described above, the Senior Developer has requested that the City consent to (i) the assignment of the Senior Developer's interest in the Senior Development Agreement and the Senior TIF Note to the Senior Assignee, and (ii) a collateral assignment of the Senior Development Agreement and the Senior TIF Note by the Senior Assignee to Berkeley Point Capital LLC, d/b/a Newmark, a 43 of 66 72693374v2 2 Delaware limited liability company (the "Lender"), pursuant to an Assignment and Assumption of Development Agreement, to be entered into by the City, Senior Developer, and Senior Assignee (the "Senior Assignment"); E. WHEREAS, related to the conveyance by the Multifamily Developer as described above, the Multifamily Developer has requested that the City consent to (i) the assignment of the Multifamily Developer's interest in the Multifamily Development Agreement and the Multifamily TIF Note to the Multifamily Assignee, and (ii) a collateral assignment of the Multifamily Development Agreement and the Multifamily TIF Note by the Multifamily Assignee to the Lender, pursuant to an Assignment and Assumption of Amended and Restated Development Agreement, to be entered into by the City, Multifamily Developer, and Multifamily Assignee (the "Multifamily Assignment"); and F. WHEREAS, drafts of the Senior Assignment and the Multifamily Assignment have been submitted to the City Council for approval. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Falcon Heights, Minnesota, as follows: 1. The City Council hereby approves the Senior Assignment and the Multifamily Assignment (together, the "Assignments") in substantially the forms submitted, and the Mayor and the Interim City Administrator are hereby authorized and directed to execute the Assignments on behalf of the City. In the absence of the Mayor or the Interim City Administrator, any document authorized by this resolution to be executed may be executed by an acting or duly designated official. 2. The approval hereby given to the Assignments includes approval of such additional details therein as may be necessary and appropriate and such modifications thereof, deletions therefrom and additions thereto as may be necessary and appropriate and approved by the City officials authorized by this resolution to execute the Assignments. The execution of the Assignments by the appropriate officer or officers of the City shall be conclusive evidence of the approval of the Assignments in accordance with the terms hereof. The motion for the adoption of the foregoing resolution was duly seconded by member __________________, and after full discussion thereof and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. __________________________________ Mayor Attest: _____________________________ Interim City Administrator 44 of 66 72693374v2 3 STATE OF MINNESOTA COUNTY OF RAMSEY CITY OF FALCON HEIGHTS I, the undersigned, being the duly qualified and acting Interim City Administrator of the City of Falcon Heights, Minnesota, DO HEREBY CERTIFY that I have compared the attached and foregoing extract of minutes with the original thereof on file in my office, and that the same is a full, true and complete transcript of the minutes of a meeting of the City Council of said City duly held on the date therein indicated, insofar as such minutes relate to a resolution giving approval to the Assignments as described therein. WITNESS my hand this __________________, 2022. _____________________________ Interim City Administrator 45 of 66 BLANK PAGE  46 of 66 1 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: S.R. Sidarth, Esquire Troutman Pepper Hamilton Sanders LLP P.O. Box 1122 Richmond, VA 23218 --------------------------------------------------------------------------------------------------------------------- SPACE ABOVE LINE FOR RECORDER’S USE Freddie Mac Loan Number: 507289862 Property Name: Falcon Heights Town Square Apartments ASSIGNMENT AND ASSUMPTION OF AMENDED AND RESTATED DEVELOPMENT AGREEMENT This Assignment and Assumption of Amended and Restated Development Agreement (the “Agreement”) is made and entered into this ____ day of ____________, 2022 (the “Effective Date”), by and among the City of Falcon Heights, a Minnesota municipal corporation (the “City”); Falcon Heights Town Square Limited Partnership, a Minnesota limited partnership (the “Assignor”); and Tilden FP Falcon Heights Apartments, LLC, a Delaware limited liability company (the “Successor”). Except as otherwise provided herein, capitalized terms used in this Agreement shall have the same meanings as those terms used in the Amended and Restated Development Agreement executed by and between the City and the Assignor, dated April 28, 2004, as evidenced by the Memorandum of Development Agreement and the Certificate of Completion dated April 28, 2004 and recorded in the Ramsey County Registrar of Titles as Instrument Nos. 1838694 and 1951697, respectively (collectively, the “Development Agreement,” a copy of which is attached hereto as Exhibit A). The City, Assignor and Successor are hereafter sometimes referred to individually as a “Party” and collectively as the “Parties”. WITNESSETH: WHEREAS, the City had previously established (i) Municipal Development District No. 1 (the “Development District”), pursuant to Minnesota Statutes, Sections 469.124-469.134, and (ii) Tax Increment Financing District No. 1-3 (the “TIF District”), within the Development District, pursuant to Minnesota Statutes, Sections 469.174-469.179 (the “TIF Act”); and WHEREAS, the Assignor intends to convey or has conveyed the Development Property (such transferred property, which is described in Exhibit B attached hereto, may be referred to hereinafter as the “Transferred Property”) to Successor; and WHEREAS, as a part of Successor’s acquisition of the Transferred Property, Successor has obtained a mortgage loan (“Loan”) from Berkeley Point Capital LLC, d/b/a Newmark, a 47 of 66 2 Delaware limited liability company (together with its successors and assigns, including but not limited to Freddie Mac and any securitization trust, “Lender”), which Loan is secured by, among other things, the Transferred Property, and evidenced by certain documents including a note, mortgage and loan agreement (collectively, the “Loan Documents”); and WHEREAS, Lender and Successor have agreed that Successor shall collaterally assign to Lender, and grant Lender a security interest in, all of Successor's rights acquired under this Agreement, including, without limitation, all rights of Successor to receive payments under the Taxable Tax Increment Revenue Note in the original principal amount of $1,586,126 dated as of April 28, 2004 (as amended and assigned, the “TIF Note”), by the City of Falcon Heights, Minnesota, to the order of Assignor; and WHEREAS, the Parties hereto desire to facilitate the assignment of the Development Agreement and the TIF Note to the Successor; and WHEREAS, this Agreement is being executed pursuant to Section 8.1 of the Development Agreement; NOW, THEREFORE, in consideration of the circumstances described above, the covenants contained in the Development Agreement, the TIF Note, and this Agreement, and the benefit to be derived by the Parties from the execution hereof, the Parties agree as follows: 1. The Assignor hereby assigns its right, title and interest under the Development Agreement and the TIF Note to the Successor, including Assignor’s rights to payment under the TIF Note (the “Assigned Benefits”), free and clear of all liens, encumbrances, pledges or security interests. 2. From and after the Effective Date of this Agreement, the Successor hereby agrees to be bound by, assume and perform on, or ensure the performance of, all of the obligations, agreements, covenants and restrictions set forth in the Development Agreement to be performed and observed by the Developer (as defined in the Development Agreement) beginning on the Effective Date. Successor shall not be liable for any obligations that the Development Agreement required the Developer to perform before the Effective Date of this Agreement. 3. Assignor shall not be liable for any obligations that the Development Agreement requires the Developer to perform after the Effective Date of this Agreement, provided, however, that Assignor will cooperate with Successor in any way necessary to fulfill the intent of this Agreement, including providing Successor any information needed to support payments under the TIF Note. 4. The City agrees that as to the Transferred Property and the Assigned Benefits, the Successor has and shall have all entitlements and rights to the benefits and obligations in the same manner and with like effect as if the Successor had been an original signatory (i.e., the Assignor) to the Development Agreement and the original payee under the TIF Note. 48 of 66 3 5. (a) Assignor hereby certifies to Lender and Successor as of the date of this Agreement that (i) each of the Development Agreement and the TIF Note is in full force and effect and has not been modified or assigned except pursuant to this Agreement; (ii) Assignor has fulfilled all of the obligations of Assignor set forth in the Development Agreement and the TIF Note arising on or prior to the date of this Agreement and there is no event of default under the Development Agreement or the TIF Note (and no event of default that, but for the passage of time, would constitute an event of default under the Development Agreement or the TIF Note); (iii) the obligations of Assignor as Developer under the Development Agreement are not secured by the TIF Note that is to be assigned by Assignor to Successor in accordance with the terms of this Agreement; (iv) Assignor has completed all of the Minimum Improvements pursuant to the Development Agreement (including, without limitation, all of the Remaining Obligations, as mentioned in the Memorandum of Development Agreement dated April 2, 2004 and recorded as Instrument No. 1838694); and (v) the Assignor has received $___________ in the aggregate as payments under the TIF Note. (b) The City hereby certifies to Lender and Successor as of the date of this Agreement that (i) each of the Development Agreement and the TIF Note is in full force and effect; (ii) the City has not declared an Event of Default under the Development Agreement or TIF Note on or prior to the date of this Agreement; and (iii) the obligations of Assignor as Developer under the Development Agreement are not secured by the TIF Note that is to be assigned by Assignor to Successor in accordance with the terms of this Agreement. 6. The City hereby consents to and approves of the Successor’s collateral assignment of, and grant of a security interest in, this Agreement, the Development Agreement, and the TIF Note to the Lender pursuant to the Loan Documents, including a Collateral Assignment of Development Agreement of which the City has received a copy. The City also hereby consents to and approves of the conveyance and assignment by the Assignor to the Successor of the Transferred Property and the Assigned Benefits. 7. The City agrees that, upon its receipt of written notice from the Lender of an Event of Default under the Loan Documents, the City shall perform its obligations under this Agreement and the Development Agreement to and for the benefit of Lender. The City acknowledges the Lender is not obligated to perform any of Assignor’s or Successor's obligations under any agreement with the City related to the Transferred Property or cure any default by Assignor or Successor under any such agreement. The City further agrees that upon such receipt of a notice of an event of default, to make payment of those, and only those, Assigned Benefits that the Successor is entitled to receive under this Agreement and the Development Agreement to the Lender in accordance with instructions of the Lender, and Successor has consented to such remittances. The City is entitled to rely on such written notification of the occurrence of an Event of Default from the Lender without further inquiry. 8. The City shall not exercise any remedies under the Development Agreement until the expiration of a 90-day period (the “Lender Cure Period”) following Lender’s receipt from the City of notice of a default under the Development Agreement; provided, however, the Lender Cure Period shall be automatically extended for such period of time as Lender is diligently pursuing remedies for an Event of Default under the Loan Documents. During the Lender Cure Period, however, the City shall be entitled to pursue specific performance and/or injunctive relief 49 of 66 4 and other rights and remedies against Successor and the Property to enforce the Development Agreement. Lender shall have the right, but not the obligation, to cure a default under the Development Agreement during the Lender Cure Period. 9. Notwithstanding anything in the Development Agreement, the TIF Note, or this Agreement to the contrary, the City’s consent is not required for Lender to: (i) foreclose upon, obtain a deed in lieu of foreclosure upon, or similarly dispose of the Transferred Property; or (ii) assume any interest in a ground lease (if any) governing all or a portion of the Transferred Property. 10. All notices to the Successor under the Development Agreement shall be sent to the following Notice Address: Tilden FP Falcon Heights Apartments, LLC 6116 Executive Boulevard, Suite 100 North Bethesda, Maryland 20852 Attention: Andrew S. Kadish With a copy to: CAPREIT, Inc. 6116 Executive Boulevard, Suite 100 North Bethesda, Maryland 20852 Attention: General Counsel The notices for all other Parties under this Agreement shall be addressed in accordance with Section 10.3 of the Development Agreement. 11. The City hereby agrees to provide the Lender with copies of any notice or demand made on the Successor under this Agreement or the Development Agreement or any document related thereto at the following address: Berkeley Point Capital LLC d/b/a Newmark 8 Springhouse Innovation Park, Suite 200 Lower Gwynedd, Pennsylvania 19002 Attention: Director Loan Servicing The City further agrees that the Lender shall have the right, but not the obligation, to cure any defaults on behalf of the Successor within the applicable periods of time set forth in any document related to this Agreement, the Development Agreement and the Transferred Property and that the City will accept such cure from Lender in accordance with the terms of this Agreement and the Development Agreement. 12. Each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be 50 of 66 5 prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions of this Agreement. The remaining provisions of this Agreement shall be read together to preserve the intent of the Parties to the fullest extent possible. 13. This Agreement may be executed by the Parties hereto in one or more counterparts or duplicate signature pages, each of which when so executed and delivered will be an original, with the same force and effect as if all required signatures were contained in a single original instrument. [Remainder of page intentionally left blank] 51 of 66 6 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives to be effective as of the Effective Date. CITY: CITY OF FALCON HEIGHTS, a Minnesota municipal corporation By: Name: Title: STATE OF ______________________, _______________ County, ss: The foregoing instrument was acknowledged before me in the above-stated jurisdiction this _____ day of _______________, 2022 by _____________________, who is ______________________ of the City Of Falcon Heights, a Minnesota municipal corporation, for and on behalf of the corporation. __________________________________________ Notary Public My commission expires: ______________________ 52 of 66 7 ASSIGNOR: FALCON HEIGHTS TOWN SQUARE LIMITED PARTNERSHIP, a Minnesota limited partnership By: Sherman Associates, Inc., a Minnesota corporation, its General Partner By: Christopher L. Sherman President STATE OF ______________________, _______________ County, ss: The foregoing instrument was acknowledged before me in the above-stated jurisdiction this _____ day of _______________, 2022 by Christopher L. Sherman, who is President of Sherman Associates, Inc., the general partner of Falcon Heights Town Square Limited Partnership, a Minnesota limited partnership, for and on behalf of the limited partnership. __________________________________________ Notary Public My commission expires: ______________________ 53 of 66 8 SUCCESSOR: TILDEN FP FALCON HEIGHTS APARTMENTS, LLC, a Delaware limited liability company By: Rick J. Band Executive Vice President STATE OF ______________________, _______________ County, ss: The foregoing instrument was acknowledged before me in the above-stated jurisdiction this _____ day of _______________, 2022 by Rick J. Band, who is Executive Vice President of Tilden FP Falcon Heights Apartments, LLC, a Delaware limited liability company, for and on behalf of the limited liability company. __________________________________________ Notary Public My commission expires: ______________________ 54 of 66 9 EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF AMENDED AND RESTATED DEVELOPMENT AGREEMENT [Copy of Development Agreement] (attached hereto) 55 of 66 10 EXHIBIT B TO ASSIGNMENT AND ASSUMPTION OF AMENDED AND RESTATED DEVELOPMENT AGREEMENT [Legal Description of Transferred Property] (attached hereto) 56 of 66 1 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: S.R. Sidarth, Esquire Troutman Pepper Hamilton Sanders LLP P.O. Box 1122 Richmond, VA 23218 --------------------------------------------------------------------------------------------------------------------- SPACE ABOVE LINE FOR RECORDER’S USE Freddie Mac Loan Number: 507289870 Property Name: Falcon Heights Town Square Senior Apartments ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT This Assignment and Assumption of Development Agreement (the “Agreement”) is made and entered into this ____ day of ____________, 2022 (the “Effective Date”), by and among the City of Falcon Heights, a Minnesota municipal corporation (the “City”); Town Square Senior Apartments LLC, a Minnesota limited liability company (the “Assignor”); and Tilden FP Falcon Heights Senior Apartments, LLC, a Delaware limited liability company (the “Successor”). Except as otherwise provided herein, capitalized terms used in this Agreement shall have the same meanings as those terms used in the Development Agreement executed by and between the City and the Assignor, dated July 18, 2003, recorded in the Ramsey County Registrar of Titles (the “Land Records”) as Instrument No. 1796662, as affected by the Assignment of Development Agreement dated as of December 1, 2003, and recorded on December 30, 2003 in the Land Records as Document No. 1796666 and the Certificate of Completion dated July 18, 2003 and recorded on February 22, 2005 in the Land Records as Document No. 1906469 (collectively, the “Development Agreement,” a copy of which is attached hereto as Exhibit A). The City, Assignor and Successor are hereafter sometimes referred to individually as a “Party” and collectively as the “Parties”. WITNESSETH: WHEREAS, the City had previously established (i) Municipal Development District No. 1 (the “Development District”), pursuant to Minnesota Statutes, Sections 469.124-469.134, and (ii) Tax Increment Financing District No. 1-3 (the “TIF District”), within the Development District, pursuant to Minnesota Statutes, Sections 469.174-469.179 (the “TIF Act”); and WHEREAS, the Assignor intends to convey or has conveyed the Development Property (such transferred property, which is described in Exhibit B attached hereto, may be referred to hereinafter as the “Transferred Property”) to Successor; and 57 of 66 2 WHEREAS, as a part of Successor’s acquisition of the Transferred Property, Successor has obtained a mortgage loan (“Loan”) from Berkeley Point Capital LLC, d/b/a Newmark, a Delaware limited liability company (together with its successors and assigns, including but not limited to Freddie Mac and any securitization trust, “Lender”), which Loan is secured by, among other things, the Transferred Property, and evidenced by certain documents including a note, mortgage and loan agreement (collectively, the “Loan Documents”); and WHEREAS, Lender and Successor have agreed that Successor shall collaterally assign to Lender, and grant Lender a security interest in, all of Successor's rights acquired under this Agreement, including, without limitation, all rights of Successor to receive payments under the Taxable Tax Increment Revenue Note, in the original principal amount of $728,000, dated as of December 29, 2003 (as amended and assigned, the “TIF Note”), by the City of Falcon Heights, Minnesota, to the order of Assignor; and WHEREAS, the Parties hereto desire to facilitate the assignment of the Development Agreement and the TIF Note to the Successor; and WHEREAS, this Agreement is being executed pursuant to Section 8.1 of the Development Agreement; NOW, THEREFORE, in consideration of the circumstances described above, the covenants contained in the Development Agreement, the TIF Note, and this Agreement, and the benefit to be derived by the Parties from the execution hereof, the Parties agree as follows: 1. The Assignor hereby assigns its right, title and interest under the Development Agreement and the TIF Note to the Successor, including Assignor’s rights to payment under the TIF Note (the “Assigned Benefits”), free and clear of all liens, encumbrances, pledges or security interests. 2. From and after the Effective Date of this Agreement, the Successor hereby agrees to be bound by, assume and perform on, or ensure the performance of, all of the obligations, agreements, covenants and restrictions set forth in the Development Agreement to be performed and observed by the Developer (as defined in the Development Agreement) beginning on the Effective Date. Successor shall not be liable for any obligations that the Development Agreement required the Developer to perform before the Effective Date of this Agreement. 3. Assignor shall not be liable for any obligations that the Development Agreement requires the Developer to perform after the Effective Date of this Agreement, provided, however, that Assignor will cooperate with Successor in any way necessary to fulfill the intent of this Agreement, including providing Successor any information needed to support payments under the TIF Note. 4. The City agrees that as to the Transferred Property and the Assigned Benefits, the Successor has and shall have all entitlements and rights to the benefits and obligations in the same manner and with like effect as if the Successor had been an original signatory (i.e., the Assignor) to the Development Agreement and the original payee under the TIF Note. 58 of 66 3 5. (a) Assignor hereby certifies to Lender and Successor as of the date of this Agreement that (i) each of the Development Agreement and the TIF Note is in full force and effect and has not been modified or assigned except pursuant to this Agreement; (ii) Assignor has fulfilled all of the obligations of Assignor set forth in the Development Agreement and the TIF Note arising on or prior to the date of this Agreement and there is no event of default under the Development Agreement or the TIF Note (and no event of default that, but for the passage of time, would constitute an event of default under the Development Agreement or the TIF Note); (iii) the obligations of Assignor as Developer under the Development Agreement are not secured by the TIF Note that is to be assigned by Assignor to Successor in accordance with the terms of this Agreement; (iv) Assignor has completed all of the Minimum Improvements pursuant to the Development Agreement; and (v) the Assignor has received $___________ in the aggregate as payments under the TIF Note. (b) The City hereby certifies to Lender and Successor as of the date of this Agreement that (i) each of the Development Agreement and the TIF Note is in full force and effect; (ii) the City has not declared an Event of Default under the Development Agreement or TIF Note on or prior to the date of this Agreement; and (iii) the obligations of Assignor as Developer under the Development Agreement are not secured by the TIF Note that is to be assigned by Assignor to Successor in accordance with the terms of this Agreement. 6. The City hereby consents to and approves of the Successor’s collateral assignment of, and grant of a security interest in, this Agreement, the Development Agreement, and the TIF Note to the Lender pursuant to the Loan Documents, including a Collateral Assignment of Development Agreement of which the City has received a copy. The City also hereby consents to and approves of the conveyance and assignment by the Assignor to the Successor of the Transferred Property and the Assigned Benefits. 7. The City agrees that, upon its receipt of written notice from the Lender of an Event of Default under the Loan Documents, the City shall perform its obligations under this Agreement and the Development Agreement to and for the benefit of Lender. The City acknowledges the Lender is not obligated to perform any of Assignor’s or Successor's obligations under any agreement with the City related to the Transferred Property or cure any default by Assignor or Successor under any such agreement. The City further agrees that upon such receipt of a notice of an event of default, to make payment of those, and only those, Assigned Benefits that the Successor is entitled to receive under this Agreement and the Development Agreement to the Lender in accordance with instructions of the Lender, and Successor has consented to such remittances. The City is entitled to rely on such written notification of the occurrence of an Event of Default from the Lender without further inquiry. 8. The City shall not exercise any remedies under the Development Agreement until the expiration of a 90-day period (the “Lender Cure Period”) following Lender’s receipt from the City of notice of a default under the Development Agreement; provided, however, the Lender Cure Period shall be automatically extended for such period of time as Lender is diligently pursuing remedies for an Event of Default under the Loan Documents. During the Lender Cure Period, however, the City shall be entitled to pursue specific performance and/or injunctive relief and other rights and remedies against Successor and the Property to enforce the Development 59 of 66 4 Agreement. Lender shall have the right, but not the obligation, to cure a default under the Development Agreement during the Lender Cure Period. 9. Notwithstanding anything in the Development Agreement, the TIF Note, or this Agreement to the contrary, the City’s consent is not required for Lender to: (i) foreclose upon, obtain a deed in lieu of foreclosure upon, or similarly dispose of the Transferred Property; or (ii) assume any interest in a ground lease (if any) governing all or a portion of the Transferred Property. 10. All notices to the Successor under the Development Agreement shall be sent to the following Notice Address: Tilden FP Falcon Heights Senior Apartments, LLC 6116 Executive Boulevard, Suite 100 North Bethesda, Maryland 20852 Attention: Andrew S. Kadish With a copy to: CAPREIT, Inc. 6116 Executive Boulevard, Suite 100 North Bethesda, Maryland 20852 Attention: General Counsel The notices for all other Parties under this Agreement shall be addressed in accordance with Section 10.3 of the Development Agreement. 11. The City hereby agrees to provide the Lender with copies of any notice or demand made on the Successor under this Agreement or the Development Agreement or any document related thereto at the following address: Berkeley Point Capital LLC d/b/a Newmark 8 Springhouse Innovation Park, Suite 200 Lower Gwynedd, Pennsylvania 19002 Attention: Director Loan Servicing The City further agrees that the Lender shall have the right, but not the obligation, to cure any defaults on behalf of the Successor within the applicable periods of time set forth in any document related to this Agreement, the Development Agreement and the Transferred Property and that the City will accept such cure from Lender in accordance with the terms of this Agreement and the Development Agreement. 12. Each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the 60 of 66 5 extent of such prohibition or invalidity, without invalidating the remainder of such provisions of this Agreement. The remaining provisions of this Agreement shall be read together to preserve the intent of the Parties to the fullest extent possible. 13. This Agreement may be executed by the Parties hereto in one or more counterparts or duplicate signature pages, each of which when so executed and delivered will be an original, with the same force and effect as if all required signatures were contained in a single original instrument. [Remainder of page intentionally left blank] 61 of 66 6 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives to be effective as of the Effective Date. CITY: CITY OF FALCON HEIGHTS, a Minnesota municipal corporation By: Name: Title: STATE OF ______________________, _______________ County, ss: The foregoing instrument was acknowledged before me in the above-stated jurisdiction this _____ day of _______________, 2022 by _____________________, who is ______________________ of the City Of Falcon Heights, a Minnesota municipal corporation, for and on behalf of the corporation. __________________________________________ Notary Public My commission expires: ______________________ 62 of 66 7 ASSIGNOR: TOWN SQUARE SENIOR APARTMENTS, LLC, a Minnesota limited liability company By: Christopher L. Sherman President STATE OF ______________________, _______________ County, ss: The foregoing instrument was acknowledged before me in the above-stated jurisdiction this _____ day of _______________, 2022 by Christopher L. Sherman, who is President of Town Square Senior Apartments, LLC, a Minnesota limited liability company, for and on behalf of the limited liability company. __________________________________________ Notary Public My commission expires: ______________________ 63 of 66 8 SUCCESSOR: TILDEN FP FALCON HEIGHTS SENIOR APARTMENTS, LLC, a Delaware limited liability company By: Rick J. Band Executive Vice President STATE OF ______________________, _______________ County, ss: The foregoing instrument was acknowledged before me in the above-stated jurisdiction this _____ day of _______________, 2022 by Rick J. Band, who is Executive Vice President of Tilden FP Falcon Heights Senior Apartments, LLC, a Delaware limited liability company, for and on behalf of the limited liability company. __________________________________________ Notary Public My commission expires: ______________________ 64 of 66 9 EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT [Copy of Development Agreement] (attached hereto) 65 of 66 10 EXHIBIT B TO ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT [Legal Description of Transferred Property] (attached hereto) 66 of 66