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Agenda Packets - 1999/01/04
7- CITY F MOUNDS VIEW AGENDA January 4, 1999 SPECIAL MEETING 1. CALL SPECIAL MEETING TO ORDER 2. Administration of Oath of Office by City Clerk: Mayor-Dan Coughlin Council member-Lynne Thomason Council member-Rob Marty 3. Selection of Acting Mayor 4. Other Business and Adjournment WORK SESSION Items Discussed Per Consensus 1. Discussion of Community Health Planning Process. 2. Discussion of Council Order of Business a. Agendas b. Parliamentary procedure c. Schedule of meetings d. Board Appointments and Liaisons e. Selection of Official Newspaper f. Any other business 3. Discussion of Civil Service Commission and discussion of Police Chief Retirement. 4. Discussion of Streets Committee Report. 5. Discussion of 1999 Pay Plan. 6. Discussion of Mermaid Project Status. 7. Discussion of Curb Cut Policy. 8. Discussion of Airport Litigation Status - (possible closed session) MEMO December 30, 1998 To: Mayor Elect and Council, Council Members Elect From: Chuck Whiting, City Administrator Re: January 4, 1998 City Council Meeting and Work Session Welcome to the new year and the new Council. The first order of business will be to get everyone sworn in. Mayor McCarty will open the meeting and turn the swearing over to me,my only chance to swear at council meetings. I have placed the names to be sworn in in order of magnificence, but feel free to direct me otherwise. Swearing forms are included for each of the three to sign as well. The only other business that needs to be done immediately is to select an Acting Mayor. The Council can decide to decide this January 11 with your other appointments, but in case something were to happen during the week perhaps selecting one this Monday would be prudent. The other business items that the Council will need to address can be done at the January 11 meeting, particularly the official newspaper. Two separate charter provisions refer to this, one saying it must be done annually, the other at the first business meeting. I am anticipating some discussion on this item and therefore placed it on the work session with other items likely to receive discussion in preparation for decision on January 11. Here's the work session agenda: 1. Council Business Items: As referenced above and noted on the agenda, there are items that the Council may want to discuss. Items not provided in this packet will be provided Monday at the meeting. 2. Civil Service Commission and discussion of Police Chief Retirement: The Council has not met with the Civil Service Commission in the time I have spent in Mounds View. With Chief Ramacher's announced retirement,introductions and discussion should start on replacement or other options of interest to the Council. The Council's discussion content will looked to for staff direction. Some information regarding the use of consultants in the selection process and background checks will be provided by Cari Schmidt at the meeting. 3. Streets Committee Report: Enclosed in your packet is information and minutes of the Streets Committee over the past two months. Some members will be present on Monday evening. Mary Malrick was selected as the chair and she and I have been directed by the Committee to review the work to date and report on the status of the Committee. Council may recall that this Committee was established and directed to report to the City Council at this work session and submit an official report for the January 11 Council meeting. The minutes of the meetings reflect the items discussed and the policy changes recommended. Two main points can be summarized. First, the group felt that residents in a given street project area should have more say in the nature of the street improvement and that would require a change in the current street construction preference specifications. The new standard would be the general specifications of the given street as it stands at the time of project consideration. To further address resident participation, development of a given street project would require more front end consultation with residents and design in accordance with understood resident interests. The process for this is laid out in the December 3, 1998 meeting minutes. The key point here is to have a generally accepted project prior to the ordering of an engineering feasibility study and the start of the 429 assessment process. The second main point references the city's ability, and average resident's ability to pay for and share in the costs of a given street improvement. The December 15 meeting reviewed this based on prior work city staff did in providing cash flow projections of existing street specification preferences and assessment guidelines. To adequately determining the fair share and cost question, the Committee concluded that the cash flow and plan projection should be reworked with the new preferred street specification standard developed by the Committee. Once that work is completed, the residential assessment share can be evaluated and the construction options for that beyond the minimum can be reviewed. With that still unknown,the Committee felt additional time would be needed for the Committee to complete and review those findings and report to the Council again at a later date, likely in March. These points will be summarized again and opened for discussion Monday evening. 4. 1999 Pay Plan: The recent Council and staff spent considerable time evaluating current staff point ratings,pay levels and budget limitations. A three percent increase in payroll was approved for the 1999 budget, based in part on two collective bargaining units and in part on the nominal going rate for other cities. Council members from this recent year may want to bring some of their past information to the meeting. Staff will bring information for consideration by the Council on Monday (staff members are on vacation over the holidays). Generally speaking, Council will be presented with a 3% pay adjustment for current non-bargaining employees and additional adjustments for positions determined to be under paid in the recent Hay point evaluation. Staff will be seeking action January 11 assuming the issue can be dealt with in the upcoming week. 5. Mermaid Project Status: With the new mayor and council,reviewingthe status of the Mermaid project is in order. Staff members did meet two weeks ago with member elect to familiarize them with the project. Officially,this should be done again with the new Council to establish direction and commitment for the short term. Staff will be present Monday night to again review this project and seek direction from Council. 6. Curb Cut Policy: The new Council is aware of the issues arising from Mr. Tobias' variance request of the past month. The curb cut issue itself is something perhaps the Council would want to discuss in order to frame discussion and decisions in the upcoming meetings. 7. MAC Airport Litigation Status: Bob Long will be present to review the MAC airport litigation. This will require the Council go into closed session. This is the agenda so far for Monday evening. Materials may be a little thin due to vacationing and injured staff members during the holidays. We should be at full strength minus one thumb on Monday. Have a Happy New Year's weekend. Item No. I Staff Report No. Meeting Date: 1/4/99 Type of Business: WK WK:Work Session;PH:Public Hearing; CA:Consent Agenda;CB:Council Business City of Mounds View Staff Report To: Honorable Mayor and City Council From: Steve Dorgan,Housing Inspector Item Title/Subject: Community Health Planning Process Date of Report: December 30, 1998 Summary The St. Paul-Ramsey County Department of Health is in the process of developing a Community Health Plan for the years 2000-2003. As part of the Plan, the County is asking individual communities to provide input on the Preliminary Problem Statements(attached). The list of health problem areas has been developed based on published health data. The St. Paul-Ramsey County Department of Public Health is requesting each community review the Preliminary Problem Statements and address the following questions: 1. Are there health concerns/issues that you know of that are not stated on the list? 2. Which health concerns/issues are the most critical for the work of the St. Paul- Ramsey County Department of Health? Reccomendation No formal action is required with this item. Please review the attached Preliminary Problem Statements of the Community Health Services Plan for 2000-2003 and provide any comments back to staff by January 15, 1999. At which time, all comments will be forwarded to Ramsey County Health to assist with the development of the Community Health Plan. Steve Dorgan, sing Inspector 717-4023 Attachments: Exhibit A— Community Health Services Plan Preliminary Problem Statements for 2000-2003 C:\MYDOmDOCUMENNHEALTh\CCMEMI_4.98.DOC St. Paul-Ramsey County Department of Public Health Community Health Services Plan Preliminary Problem Statements for 2000-2003 Alcohol, Tobacco and Other Drugs 1. There is an unacceptable level of irresponsible alcohol use which causes public health problems such as unintentional injury, violence, fetal alcohol exposure and motor vehicle crashes. 2. As compared to other racial groups, there is a higher incidence of disease and death in the Native American population that is associated with alcohol use and abuse. 3. There is an increasing use of alcohol and tobacco by youth due to ease of access, marketing strategies, as well as lenient public policies, and community norms that accept this behavior. Child Growth and Development 4. An increasing number of children in Ramsey County live in poverty which increases their risk for developmental delays, physical and mental health problems, as well as intentional and unintentional injury. 5. There is a shortage of licensed child care settings to meet the needs of families, thereby placing children at risk for negative health outcomes in settings that are potentially less safe and healthy. (Chronic Non-Infectious Disease] 6. High numbers of children and adults in Ramsey County are overweight, sedentary, and have inadequate nutrition, increasing their risk for chronic disease. 7. There are more years of potential life lost due to chronic diseases in the African American and Native American populations than in the other population groups. Disability and Decreased Independences 8. There is a concern about the capacity of the 20-64 year old population to carry the dependency needs of the young and the elderly. Environmental Conditions 9. Individuals are at risk for illness due to indoor air pollutants, and lack of awareness of pollutants, such as radon, secondhand smoke, carbon monoxide and emissions from building materials. 10. There is an increased risk of foodborne illness due to improper food handling or preparation as well as a changing food supply. 11. There is a lack of data on the extent of exposure, reporting and screening for lead related health problems in children. Infectious Disease; 12. There is an increasing rate of tuberculosis in Ramsey County, while state and federal rates are decreasing. The state and federal decrease in TB cases is causing a lack of public policy and funding which could address TB prevention and treatment. 13. The Ramsey County rates for some sexually transmitted infections are higher than for the state and the nation, particularly among African American women. 14. There is a lack of preparedness for responding to emerging infectious diseases as well as biological or chemical emergencies. Problem Statements page 2 Infectious Disease cont'd 15. Children and adults in Ramsey County are not being fully immunized against vaccine preventable diseases. This is particularly true in the low income and Asian populations. 16. The number of persons with HIV infection in Ramsey County is growing, with potential for increased spread of disease. At the same time there is a decreased perception of HIV/AIDS as a major heath problem. Mental Health/Mental Illness 17. There are an increasing number of reports of destructive behaviors by youth (such as eating disorders and suicide attempts) due to poor self esteem, self worth, and body image. 18. There is a lack of services for children's mental health care and a lack of access to those services that exist. Pregnancy and Birth 19. There is an increasing number of low birth weight infants due to late entry into prenatal care as well as smoking, alcohol and drug use during pregnancy. African American infants have the highest rate of low birth weights of all racial groups. 20. Infant mortality rates are increasing particularly for African American and American Indian infants. 21. Ramsey County women are initiating and sustaining breastfeeding at a rate lower than state and national goals. Service Delivery Systems 22. There is gap between Minnesota goals and the current number of people in Ramsey County who have access to medical, dental and mental health care. 23. There is a lack of capacity and resource devoted to researching and developing solutions to public health issues in Ramsey County. Unintended Injury 24.There is an increased risk of unintended injury or death due to personal risk taking behaviors such as drinking and driving, seat belt and helmet non-use. The risk is increased by family and community norms and lenient public policies that view these risk taking behaviors as acceptable. 25. Motor vehicle crashes remain the leading cause of death for persons ages 1-24 years. 26. There is an unacceptable number of children and elderly persons experiencing unintended injuries caused by falls. (,Unintended Pregnancy 27.The percentage of births to adolescent mothers in Ramsey County is increasing, and is higher than for any of the other seven metropolitan counties. The highest teen birth rates are in the African American and Native American teens. Violence! 28. There is an increasing number of children experiencing chronic neglect due to ineffective parenting and families experiencing chronic stress. 29. There is a lack of data on the effects of violence, especially for those who are witness to violence. 12/10/1998 EXHIBIT A 1999 COUNCIL MEETING DATES WORK SESSIONS REGULAR MEETINGS January 4 January 11 January 25 February 1 February 8 February 22 March 1 March 8 March 23 April 5 April 12 April 26 May 3 May 10 May 24 June 7 June 14 June 26 July 6 (Tuesday) July 12 July 26 August 2 August 9 August 23 September 7 (Tuesday) September 13 September 27 October 4 October 11 October 25 November 1 November 8 November 22 December 6 December 13 December 27 RESOLUTION NO. 5294 CITY OF MOUNDS VIEW COUNTY OF RAMSEY STATE OF MINNESOTA RESOLUTION APPOINTING OFFICIAL NEWSPAPER, ACTING MAYOR,DEPUTY CLERK AND OFFICIAL DEPOSITORY FOR 1999 WHEREAS, it is the policy of the City of Mounds View to appoint the official newspaper,Acting Mayor,Deputy Clerk and Official Depository at its Annual Meeting each year; and WHEREAS, it is the desire of the Mounds View City Council to confirm these appointments for 1998. NOW, THEREFORE,BE IT RESOLVED that the City of Mounds View of the City of Mounds View hereby appointment the following: Official Newspaper: Primary: Lillie Suburban Newspaper-Bulletin Secondary: Pioneer Press Acting Mayor: NEED TO APPOINT Deputy Clerk: Bruce Kessel Primary Depository Western Bank (for checking accounts, savings accounts and investments) Secondary Depositories: Minnesota Municipal Money Market Fund U.S. Bank Systems Investment Services Norwest Investments Minnesota American National Bank St. Paul Offerman and Company,Inc. Merrill Lynch,Fenner and Smith,Inc. Dain Rauscher,Inc. Citicorp/City Bank Dean Writter Reynolds, Inc. TCF Banks Piper Jaffrey, Inc. Paine, Webber and Company, Inc. Prudential Securities,Inc. Prime Vest Financial Services,Inc. Solomon Smith, Barney,Inc. State Bank and Trust Company of New Ulm Adopted this 11th day of January, 1999 ATTEST: Mayor Dan Coughlin (SEAL) Clerk-Administrator, Charles S. Whiting RESOLUTION NO. 5301 CITY OF MOUNDS VIEW COUNTY OF RAMSEY STATE OF MINNESOTA RESOLUTION APPOINTING CITY COUNCIL MEMBERS AND CLERK-ADMINISTRATOR AS REPRESENTATIVES FOR CITY COMMISSIONS AND OTHER ORGANIZATIONS WHEREAS,members of the City Council act as representatives to City Commissions and other organizations; and WHEREAS,the following members of the City Council have been named to act as representatives to the following City Commissions/Task Force for the year 1998: Planning Commission Mounds View Business Association (Alternate) Chuck Whiting Parks and Recreation Commission Northwest Youth and Family Services Sherry Gunn Roger Koopmeiners (Alternate) League of Minnesota Cities Ramsey County League of Local Government Chuck Whiting, Clerk-Administrator Chuck Whiting, Clerk-Administrator National League of Cities Chuck Whiting, Clerk-Administrator Associate of Metropolitan Municipalities Cable Commission Chuck Whiting, Clerk Administrator Spring Lake Park/Blaine/Mounds View Firemen's Relief Association Chuck Whiting, Clerk Administrator NOW, THEREFORE,BE IT RESOLVED by the City Council of the City of Mounds View that the aforementioned appointments are hereby approved. Adopted this 11th day of January, 1999 ATTEST: Mayor Dan Coughlin (SEAL) Clerk-Administrator Chuck Whiting )0(5:k ar RESOLUTION NO. 5301 x 3 CITY OF MOUNDS VIEW COUNTY OF RAMSEY STATE OF MINNESOTA RESOLUTION APPOINTING CITY COUNCIL MEMBERS AND CLERK-ADMINISTRATOR AS REPRESENTATIVES FOR CITY COMMISSIONS AND OTHER ORGANIZATIONS WHEREAS,members of the City Council act as representatives to City Commissions and other organizations; and WHEREAS,the following members of the City Council have been named to act as representatives to the following City Commissions/Task Force for the year 1998: Planning Commission Mounds View Business Association Roger Koopmeiners Duane McCarty Sherry Gunn (Alternate) Chuck Whiting Parks and Recreation Commission Northwest Youth and Family Services Sherry Gunn Sherry Gunn Roger Koopmeiners (Alternate) Mary Saarion Ramsey County League of Local Government League of Minnesota Cities Duane McCarty Chuck Whiting, Clerk-Administrator Chuck Whiting, Clerk-Administrator National League of Cities Associate of Metropolitan Municipalities Chuck Whiting, Clerk-Administrator Duane McCarty Chuck Whiting, Clerk Administrator Cable Commission Roger Stigney Spring Lake Park/Blaine/Mounds View Firemen's Relief Association Gary Quick Chuck Whiting, Clerk Administrator NOW, THEREFORE,BE IT RESOLVED by the City Council of the City of Mounds View that the aforementioned appointments are hereby approved. Adopted this 11th day of January, 1999 ATTEST: Mayor Dan Coughlin (SEAL) Clerk-Administrator Chuck Whiting PLANNING COMMISSION MEMO To: Mounds View Planning Commission, From: Rick Jopke, Community Development Director Subject: Planning Commission Terms Date: November 10, 1998 As we have discussed previously,there is some confusion about when terms of a number of Planning Commissioners expire. The City Code in Section 401.02, Subdivision 1 a. states: "the appointees shall have three (3)year staggered terms: at least two (2) of these terms, but not more than three (3) terms, shall expire each year on December 31."Records seem to indicate that six terms (Miller, Stevenson, Johnson,Brasaemle,Brooks, and Obert) will expire on December 31, 1999 and one term will expire on December 31, 2000 (Peterson). This obviously is not consistent with the above ordinance requirements. Records are unclear how this happened. From what I can determine the problem appears to be that in 1996 Commissioners Brasaemle, Brooks and Obert were appointed to fill out unexpired terms of previous commissioners who resigned but the exact length of the unexpired terms was not documented and instead their terms were assumed to be full three year terms. However, the appointments are usually done by City Council resolution and there are no resolutions on file appointing Brasaemle, Brooks, and Obert to the Planning Commission. I have also been unable to find any mention of the appointments in City Council meeting minutes. The three unexpired terms were as follows: Dan Nelson: term would have expired on 12/31/96; Henry Ruggles: term would have expired on 12/31/97; Joanne Colleen: term would have expired on 12/31/98 Possible courses of action could include: 1. Do nothing at this time and achieve the staggered terms in the future by appointing members to 2 or 3 year terms when terms expire at the end of 1999 or when vacancies occur. The term of the person filing the vacancy due to the resignation of Bobbi Brooks could be 3 years. 2. Recommend that the City Council adjust terms now to create the required stagger. STAFF RECOMMENDATION Staff recommends that the Planning Commission discuss this matter and recommend a course of action. N:\DATA\GROUPS\COMDEV\PLANCOMM\11-18-98.MEM MOUNDS VIEW CHARTER COMMISSION TERMS EXPIRING OCTOBER 31, 2000 LEON BURTON 1st Term (96-00) 2550 Ridge Lane Mounds View, Mn 55112 DUANE McCARTY 2nd Term (96-00) 8060 Long Lake Rd. Mounds View, MN 55112 MICHAEL McGLONE 1st Term (96-00) 8345 Red Oak Drive Mounds View, Mn 55112 RICHARD OMAN 2nd Term (96-00) 8205 Groveland Road Mounds View, MN 55112 LAURIE OHMANN SCHLEY 2nd Term (96-00) 8423 Knollwood Dr. Mounds View, MN 55112 WILLIAM WERNER SR. 2nd Term (96-00) 2765 Sherwood Rd. Mounds View, MN 55112 RUTH WHITE 2nd Term (96-00) 2917 County Rd. "I" • Mounds View, MN 55112 DIANE WUORI 1st Term (96-00) 5613 St. Stephen St. Mounds View, MN 55112 MOUNDS VIEW CHARTER CONL'VIISSION EXPIRATION DATES OF 1998 AND 2000 TERMS EXPIRING OCTOBER 31, 1998 DAVID L. LONG 2nd Term (94-98) 7749 Knollwood Drive Mounds View, MN 55112 JEAN MILLER 1st Term (94-98) 2291 Hillview Road Mounds View, MN 55112 ROGER STIGNEY 1st Term (94-98) 8400 Eastwood Drive Mounds View, MN 55112 RHONDA SMIEJA 1st Term (94-98) 5298 St. Stephen St. Mounds View, MN 55112 WILLARD DOTY Replacement Term 3049'BretifAMIT6Dr. 6s-©nAug.97-Oct.98 Mounds View, MN 55112 RUSSELL WARREN 2nd Term (94-98) 8044 Greenwood Dr. Mounds View, MN 55112 WILLIAM R. WILSON, JR. 1st Term (94-98) 2396 Pinewood Circle N.E. Mounds View, MN 55112 Individuals having applied for reappointment to the Mounds View Charter Commission: Jean Miller Roger Stigney Bill Doty Rhonda Smieja Individuals applying for positions on the Charter Commission: Julie Olson Rob Marty One opening still remains as of December 15, 1998 Item No. Meeting Date: 1-04-99 Staff Report No. Type of Business:MIK WK:Work Session;PH:Public Hewing; CA:Consent Agenda;EDAB:EDA Business Mounds View City Counoil Work Session Staff Report To: Mounds View City Council From: Kevin Carroll, Economic Development Coordinator Item Title/Subject: Mermaid Hotel/Banquet Center(Progress Report) Date of Report: December 31, 1998 SUMMARY At the meeting on January 4, 1999, I intend to give you another verbal report on the status of the Mermaid project. Staff members and representatives of the Developers will once again be available to answer any questions that you may have. As previously indicated, your thoughts, suggestions and guidance with respect to the future handling of this matter will be gladly received and greatly appreciated. I anticipate that my presentation on Monday will touch on the following subject areas: 1. Background: I will briefly summarize the history of the project to date, for the benefit of audience members, viewers at home, and the newly-elected Council members. 2. DTED Redevelopment Grant: Although we finished 10th out of 26 applicants for the first "round" of the 1998-1999 funding cycle, and therefore did not receive a grant, we could submit an updated version of our original application in the second round, which has a 4-1-99 application deadline. Whether or not the project can be put"on hold"until that time is uncertain. 3. Metro Transit Park& Ride Facility: As you will recall, in the early stages of this project Metro Transit expressed an interest in possibly siting a new Park&Ride lot somewhere within the Mermaid redevelopment project. However, as Metro Transit staff members began to examine their options more closely, it appeared that their interest in the Mermaid site began to wane. That fact was confirmed during a telephone conversation with Aaron Isaacs of Metro Transit on December 31, 1998. He essentially confirmed the fact that the Mermaid location is no longer under consideration, for three reasons: a. MnDOT, Metro Transit, Anoka County and the City of Blaine are apparently working together to make significant improvements to the 35W/95th Avenue exchange, and those plans include a new Park&Ride facility at that location. Metro Transit apparently believes that commuters heading south on 35W in the morning will want to "bail out" and get on a bus before they encounter the traffic congestion that often occurs in the morning along the Mounds View/New Brighton portion of 35W. b. Metro Transit has already made arrangements for the use of a portion of the Arsenal property in the event that additional Park&Ride spaces are needed south of the Council Memo December 31, 1998 Page 2 35W/95th Avenue exchange. c. In the event that the Arsenal property become unavailable or unsuitable, and/or if it appears that additional Park&Ride spaces are needed in(or closer to)Mounds View, Metro Transit is apparently convinced that extra parking spaces can be provided in the movie theater lot at a cost that would be substantially lower than the cost of providing them on the Mermaid project site. 4. Development Agreement: The initial draft of the Development Agreement has been revised to reflect some(but not all) of the changes that were suggested by the Halls' attorney And certain concerns and issues that were raised by the Economic Development Commission at its December 10th meeting. A copy of the revised Agreement has been included for your review. The Halls' attorney was scheduled to meet with me to discuss the revised Agreement at 1:30 p.m. on December 30th, but some schedule complications apparently arose and he was forced to cancel our meeting. I therefore do not know if the revised Agreement is completely acceptable to the Developers, but the fact that their attorney wanted to meet with me to discuss it suggests that there may still be some areas of disagreement. In any event, at the January 4th work session I will do my best to answer any questions that you may have about the"working draft" of the Agreement. As you review it, pay particular attention to the provisions that are underlined, because those are either the portions that have been added at the Developers' request Q1 new sections that have been included to address issues raised by the EDC. I should note that the dates in Section 4.3 on page 12 are wrong; they should be March 1, 1999 and December 31, 1999. 5. Property Acquisition(s): The owner of the RentAll site has not yet made a formal response to the City's offer to purchase the site. As I previously reported, that fact may be due to the owner's apparent desire to obtain an independent appraisal of the property, but whether the owner has done so is unknown at this time. Another unknown is the status of the Developers' discussions or negotiations with the owners of the other parcels that would be required for the project. A 1 , ! I : I II For i ussion onl . vi Carroll(71' , e' 9) Economic Development Coordina or N:\DATA\GROUPS\ECONDEV\COUNCIL\01-04-99.KPC BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 16:52 P.02 DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF MOUNDS VIEW, MINNESOTA, AND This document drafted by: BRIGGS AND MORGAN Professional Association 2200 First National Bank Building St . Paul, Minnesota 55101 565316.Rad vz to 'v1; 1.2/11/98 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 16:52 P.03 • • TABLE OF CONTENTS • • DEVELOPMENT AGREEMENT Page Introduction 1 ARTICLE I - DEFINITIONS 2 Section 1.1 . Definitions 2 ARTICLE II - REPRESENTATIONS AND WARRANTIES 5 Section 2 .1. Representations and Warranties of the City 5 Section 2 .2 . Representations and Warranties of the Developer 5 ARTICLE III - REIMBURSEMENT OF PROJECT COSTS 7 Section 3 . 1. Statement of Intent . 7 Section 3 .2 . Reimbursement of Project Cost by City , . 7 • Section 3 .3 . Issuance of Tax Increment Bonds 8 Section 3 .4 . Limitations on Financial Undertakings of the City 8 Sec ion 3 .5. Adjacent Development Property 8 It Section 3 .6, Re•ioaal Storm Water Holdin- Pond . _._ . 9 1.11G Cit. % p •-._•-_._ _. _.._w ARTICLE IV - CONSTRUCTION OF MINIMUM IMPROVEMENTS 10 3 Section 4 . 1. Construction of Minimum Improvements 10 3 Section 4 .2 . Construction Plans 10 3 Section 4 .3 . Commencement and Completion of Construction 11- 11 ARTICLE V - INSURANCE tt 12 Section 5. 1. Insurance . tt 12 Section 5 . 2 . Relationship to Mortgagee. 33' 14 ARTICLE VI - ASSESSMENT AGREEMENT AND OTHER COVENANTS . . * 15 Section 6 .1. Execution of Assessment Agreement . . tit 15 Section 6 .2 . Real Property Taxes 15- Section 6.3 . Payment In-Lieu of Taxes i5. 16 ARTICLE VII - TAX INCREMENT SHORTFALL GUARANTY 3-e- 17 Section 7 .1 . Developer' s Agreement to Pay Tax Increment Deficiency ±e 17 ARTICLE VIII - MORTGAGE FINANCING . . . . . . . . . . . . 11 Section 8 . 1. Limitation Upon Encumbrance of Property 17 18 Section 8 .2 . Approval of Mortgage 11 965316.5ted v2 to V1; 12/11/98 BRIGGS&MORGRN Fax:6512236645 Dec 11 '98 16:53 P.04 Section 8 .3 . Notice of Default; Copy to Mortgagee . 3-S 19 Section 8 .4 . Mortgagee' s Option to Cure Defaults . . i-t Section 8 .5 . City' s Option to Cure Default on Mortgage tt 19 Section 8 .6. Subordination and Modification for the Benefit of Mortgagees . . . . . . . . . 3 20 ARTICLE IX - PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER; INDEMNIFICATION 2e 21 Section 9 .1 . Transfer of Substantially All Assets 2 21 Section 9 .2 . Prohibition Against Transfer of Property and Assignment of Agreement 20 2.1 Section 9 .3 . Release and Indemnification Covenants 2* 22 Section 9 .4 . Approvals 22 23 ARTICLE X - DEVELOPER EVENTS OF DEFAULT 23" 24 Section 10 . 1. Events of Default Defined �} Section 10 .2 . Remedies on Default 2* 25 Section 10 .3 . No Remedy Exclusive *4- 25 Section 10 .4 . No Implied Waiver 25 25 Section 10 . 5. Agreement to Pay Attorney's Fees and Expenses . . . . . . . . . . . . . . 26 ARTICLE XI - ADDITIONAL PROVISIONS 26 27 Section 11. 1. Restrictions on Use , .2S- 27 Section 11 . 2 . Conflicts of Interest 0 2* 27 Section 11.3 . Titles of Articles and Sections . . . 2.6- 27 Section 11 .4 . Notices and Demands 26 27 Section 11.5 . Counterparts . . 27 28 Section 11. 6 . Modification 2-7- 28• Section 11.7 . Law Governing 2-7 28 Section 11.8 . Legal Opinions 27 28 Section 11.9 . Jobs Act 21' 28 Section 11. 10 . Reports 2e a Section 11 . 11. City Approvals *e 29 Section 11. 12 . Rule of Construction 2g 29 EXHIBITS: EXHIBIT A - ASSESSMENT AGREEMENT EXHIBIT B - LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY EXHIBIT C - MINIMUM IMPROVEMENTS EXHIBIT D - FORM OF LEGAL OPINION OF DEVELOPER'S COUNSEL EXHIBIT E - LEGAL DESCRIPTION OF ADJACENT DEVELOPMENT PROPERTY EXHIBIT F - LEGAL DESCRIPTION OF REGIONAL HOLDING POND LAND 96533.6.Red V2 to Vl; 12/11/98 BRIGGS&MORGRN Fax:6512236645 Dec 11 '98 16:53 P.05 DEVELOPMENT AGREEMENT • THIS AGREEMENT, made as of the day of , 1998; by and between the City of Mounds View, Minnesota (the "City") , a municipal corporation and political subdivision organized and existing under the Constitution and the laws of the State of Minnesota; and , a (the "Developer") , WITNESSETH: WHEREAS, pursuant to Minnesota Statutes, Sections 469 . 124 through 469 . 134 (the "Municipal Development Act") , the City has formed the Mounds View Economic Development Project (the "Development District") and adopted a Development Program (the "Development Program") for the Development District; and WHEREAS, pursuant to the provisions of Minnesota Statutes, Section 469 .174 through 469 . 179, as amended, (hereinafter the "Tax Increment Act" ) the City has created a tax increment financing district (the "Tax Increment District") designated as Tax Increment District No. 1, and has adopted a tax increment financing plan (collectively, the "Tax Increment Plan") therefor which provides for the use of tax increment financing in connection with development within the Development District; and WHEREAS, in order to achieve the objectives of the Development Program and particularly to make the land in the Development District available for development by private enterprise in conformance with the Development Program, the City has determined to reimburse the Developer for certain costs of a Project to be undertaken by the Developer; and WHEREAS, a major objective of the Development Program and Tax Increment Plan is to assist redevelopment and development and prevent the further deterioration of land located within the Development District; and WHEREAS, the City believes that the development of a certain Project as more fully set forth in this Agreement pursuant to the terms of this Agreement, and fulfillment of this Agreement are vital and are in the best interests of the City and the health, safety, morals and welfare of its residents, and in accordance with the public purpose and provisions of the applicable state and local laws and requirements under which the Project has been undertaken and is being assisted. 965316.Red V2 to V1; 12/11/98 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 16:54 P.06 • NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: • • 965316.Red V2 to VI: 12/12/98 2 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 16:54 P.07 ARTICLE I DEFINITIONS Section 1.1. Definitions. . All capitalized terms used and not otherwise defined herein shall have the following meanings unless a different meaning clearly appears from the context: Adjacent Development property means the real property legally described in Exhibit E; Agreement means this Agreement, as the same may be from time to time modified, amended or supplemented in accordance with its terms; Assessment Agreement means the agreement, in the form of the agreement contained in Exhibit A attached hereto and made a part of this Agreement, among the Developer, the City and the Assessor for the County, entered into pursuant to Article VI of this Agreement; Assessor' s Minimum Market Value means the agreed minimum market value of the Development Property and the Minimum Improvements for calculation of real property taxes as determined by the assessor for the County, of not less than $ as of January 2, 2000; City means the City of Mounds View, Minnesota; Construction Plans means the plans, specifications, drawings and related documents of the construction work to be performed by the Developer on the Project and the Development Property and the plans (a) shall be as detailed as the plans, specifications drawings and related documents which are submitted to the building inspector of the City, and (b) shall include at least the following: (1) site plan; (2) foundation plan; (3) basement plans; (4) floor plan for each floor; (5) cross sections of each (length and width) ; and (6) elevations (all sides) ; County means the County of Ramsey; Developer means , a • its successors and assigns; Development District means the Mounds View Economic Development Project; 965316.Red v2 to vl; 1Z/11/96 3 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 16:54 P.08 Development Program means the development program approved in connection with the Development District; Development Property means the real property (including any Minimum Improvements thereon) legally described in Exhibit B of this Agreement and when the Ci conve s •e Ad'acent Develo.ment Property to the Developer the term Development Property shall also include the Adjacent Development Propertz; Event of Default means any of the events described in Section 10 .1; First Mortgage means any Mortgage which Developer purchases the Development Property subject to or any Mortgage granted to secure any loan made pursuant to either a mortgage commitment obtained by the Developer from a commercial lender or other financial institution to purchase the Development Property or fund any portion of the construction costs and initial operating capital requirements of the Minimum Improvements, or all such Mortgages as appropriate; Minimum Improvements means the substantial completion of the improvements contemplated by and in accordance with this Agreement and the Construction Plans and generally described in Exhibit C attached hereto; Mortgage means any mortgage or security agreement in which the Developer or a predecessor in interest has granted a mortgage or other security interest in the Development Property, or any portion or parcel thereof, or any improvements constructed thereon, and which is a permitted encumbrance pursuant to the provisions of Article VIII; Net Proceeds means any proceeds paid by an insurer to the Developer, the City under a policy or policies of insurance required to be provided and maintained by the Developer pursuant to Article V of this Agreement and remaining after deducting all expenses (including fees and disbursements of counsel) incurred in the collection of subh proceeds; Person means any individual, corporation, limited_liability corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof; Proiect means the acquisition of the Development Property and the construction of the Minimum Improvements thereon; 965316.Red vZ to Vi; 12/11/98 4 BRIGGS&MORGRN Fax:6512236645 Dec 11 '98 16:55 P.09 • Si -gImprovements means the site improvements related to the Minimum Improvements and any other facilities to be constructed on the Development Property; • State means the State of Minnesota; Tax Increments means the tax increments derived by the City under the Tax Increment Act from the Development Property; Tax Increment Act means the Tax Increment Financing Act, Minnesota Statutes, Sections 469 .174 through 469.179, as amended; Tax Increment Bonds or Bonds means the $. , 000,000 General Obligation Tax Increment Bonds& the proceeds of which will be used to finance the costs of the Development Property, the Adjacent Development Property and Site Improvements to be reimbursed .by the City; the term "Bonds" shall also include any bonds or obligations issued to refund any Bonds; Tax Increment District means the tax increment financing district described in Exhibit A and qualified as a redevelopment district under the Tax Increment Act; Tax Increment Financin_Q Plan means the tax increment financing plan approved for the Tax Increment District under the Tax Increment Act; Termination Date means the date of expiration of this Agreement and the Assessment Agreement as provided in Section 6.1; Unavoidable Delays means delays, outside the control of the party claiming its occurrence, which are the direct result of strikes, other labor troubles, unusually severe or prolonged bad weather, acts of God, fire or other casualty to the Minimum Improvements, litigation commenced by third parties which, by injunction or other similar judicial action or by the exercise of reasonable discretion, directly results in delays, acts of any federal, state or local:,.governmental unit (other than the City) which directly result in delays (except with respect to performance of the City's obligations hereunder) , failure to receive or delays in the receipt of necessary approvals from federal, state or local authorities, which directly result in delays, or the inability of the Developer to acquire the Devel- •meat Pro- -r on terms acce•table to the Develo.er. Time lost as a result of Unavoidable Delays applicable to any deadline set forth in this Agreement shall be added to extend said deadline by a number of days equal to the number of days lost as a result of Unavoidable Delays . 965316.Red V2 to V1; IZ(11(98 5 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 16:55 P. 10 ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2 .1. Representations and Warranties of the City. The City makes the following representations and warranties : (1) The City is a municipal corporation and political subdivision organized under the provisions of the Constitution, and laws of the State and has the power to enter into this Agreement and carryout its obligations hereunder. (2) The Tax Increment District is a "redevelopment district" within the meaning of Minnesota Statutes, Section 469 . 174, Subdivision 10, and. was created, adopted and approved in accordance with the terms of the Tax Increment Act. (3) The development contemplated by this Agreement is in conformance with the development objectives set forth in the Development Program and Tax Increment Financing Plan. (4) The City makes no representation or warranty, either express or implied, as to the Development Property or its condition or the soil conditions thereon, or that the Development Property shall be suitable for the Developer' s purposes or needs. Section 2.2. Representations and Warranties of the Developer. The Developer makes the following representations and warranties: (1) The Developer is a and has power to enter into this Agreement and to perform its obligations hereunder and is not in violation of any provisions of the laws of the State; and (2) The Developer will cause the Minimum Improvements to be constructed, operated and maintained in accordance with the terms of this Agreement, the Development Program and all local, state and federal laws and regulations (including, but not limited to, environmental, zoning, energy conservation, building code and public health laws and regulations) . (3) The Developer shall obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals and will meet, in a timely manner, all requirements of all applicable local, state, and federal laws and regulations which must be obtained or met before the Minimum Improvements may be lawfully constructed. 965316,Red V2 to V1; 12/11/98 6 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 16:56 P. 11 (4) 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 (unless all necessary waivers, consents or the like have been obtained) or results in a breach of, material terms, conditions or provision of any contractual restriction, 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 material default under any of the foregoing, (5) The Minimum Improvements will be constructed at a cost of not less than $7,400000 . (6) The Developer will cooperate fully with the City with respect to any litigation commenced with respect to the Project. (7) The Developer has or will obtain funds sufficient for the acquisition or. construction of the Minimum Improvements, together with financing provided by the City pursuant to this Agreement, as contemplated in this Agreement. (8) The Developer will cooperate fully with the City in resolution of any traffic, parking, trash removal or public safety problems which may arise in connection with the construction and operation of the Project. (9) The Developer would not undertake the Project in the reasonably foreseeable future without the use of tax increment financing contemplated by this Agreement. (10) The Developer expects that, barring Unavoidable Delays, the Project will be substantially completed by December 31, 1999 , 965316.Red V2 to Vl; 12/11/9$ 7 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 16:56 P. 12 ARTICLE III REIMBURSEMENT OF PROJECT COSTS Section 3 .1 . Statement of Intent. It is the intent of the parties that the City Developer will acquire the Development Property and th�c City will reimburse the Developer for a portion of the cost of the Development Property. .including relocation bens and Site Improvement ait,L0 costs in an amount equal to . $1,700. 000 (the "Reimbursement_Amount") . The Devele.er shall I-en• ash e. it of not less than on Prosect Costs_ The City will oav the Reimbursement Amount for Prolect Costs in excess of $ , the cash equity riixement. Section 3 .2 . Reimbursement of Project Cost by City. (1) The City shall reimburse the Developer for ci po..ti�" %dL the Reimbursement Amount upon satisfaction of the-following conditions: • (a) The Developer shall be in material compliance with all the terms and provisions of this Agreement; (b) The Developer shall have submitted to the City Construction Plans for the Minimum Improvements and such Construction Plans shall have been approved by the City pursuant to Section 4 . 2 of this Agreement; (c) Execution of an Assessment Agreement by the City, the County and the Developer pursuant to Section &. i of this Agreement; (d) Receipt •'of a certificate from the City' s building inspector certifying that the construction of the Minimum Improvements is not less than 8-ft:- 2i. complete; (e) Receipt of an opinion of counsel to the Developer in the form attached hereto as Exhibit D; (f) The =- • - - _ _ . - t l 5C1).ft1Gpet to pay for the aC,iu23.it.ivii v.0 the Dvc1-t,,ymC11t Improvements, City shall be satisfied thatthe Developer has, 965316.Red V2 to V1; 12/11/98 8 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 16:56 P. 13 firm financing commitments for construction and •ermanent financincr for the Proiect in an amount sufficient, together with cash e• it of com.lete the Pro 'ect in go_nforntance with the Construction Plante or the City shall receive such other evidence - financial abilit as in the reasonable iudoment of the City is revuired- t ) Issuatice „Jr Lige a�4 sar. ; �£a�Lioir Ltd LOtd3.tjo $ L forth iii Section 3 .3 of this Ayteeiue.il., *(g), The Developer shall have submitted to the City a letter of credit as required by Section 7.1; Delivery to the City of an agreement by the holder of the First Mortgage agreeing to be bound by the Assessors Minimum Market Value set forth in the Assessment Agreement; and -f -3-(i) Issuance of the Tax Increment Bonds and satisfaction of the conditions set forth. in Sect , 3 .4 of LLL, Ag.Lee«,ent.. Sections 3.3 and 3 .4- (j) The Developer shall submit evidence that the Develo.er has sent cash equity of not less than, $ on Proiect Costs and that the Rei:ahursement Amount will reimburse for Pro'ect Costs in excess of . and The Develo-er shall have submitted .aid invoices or other evidence acce•table to the Cit that the Develo-er has_,_,paid for costs of the Development Property, including relocation benefits and Site Improvement Costs of not less than S1, 700,000 . Section 3 .3 . issuance of Tax Increment Bonds . The City agrees to exercise its .best efforts to take all steps necessary to issue its Tax Increment Bonds in an amount sufficient to finance the City's obligations to the Developer under Section 3 .2 . The obligation of the City to issue the Bonds shall be subject to the limitations provided in Section 3 .3 of this Agreement . Section 3 .4 . Limitations on Financial Undertakings of the City. Notwithstanding the provisions of Section 3 .3, the City shall have no obligation to the Developer under this Agreement to issue the Tax Increment Bonds, if any of the following conditions exist : 965316.Red V2 to Vi; 12/I1/9a 9 BRIGGS&MORGRN Fax:6512236645 Dec 11 '98 16:57 P. 14 (i) The City is entitled under Section 10.2 of this Agreement to exercise any of the remedies set forth therein as a result of an Event of Default; (ii) There has been, or there occurs, a substantial change for the worse in the financial resources and ability of the Developer, or a substantial decrease in the financing commitments secured by the 'Developer for construction of the Minimum Improvements, which change (s) makes it substantially more likely, in the reasonable judgment of the City, that the Developer will be unable to fulfill its covenants and obligations under this Agreement . Section 3 .5. Ad_acent Develo meat Property. (1) The Cit a rees to ac ire the Adjacent Development Property subject to the following conditions. (a) The cost of ac- irin- the AdiacentDevelopment Property and related expenses does not exceed 5550 000 and (b)4 The closin- of the ac- isition of the Adjacent Development Proflerty shall not occur until the Developer has acQuired all of the Development Pro erty. 121 The Cit shall cone the Ad'acent Develoment ProAerty to the Develo•er u-on sati-faction of the conditions set forth i Section 3 .6. Regional Storm Water Holding Pond. In the ev-nt the Cit determines to install a re-conal storm water holding pond the Developer, within 30 days of the re est of the City, shall convey to the Cit the land described in Exhibit F. • ,69316.Red V2 to VI; 12/11/98 10 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 16:57 P. 15 ARTICLE IV CONSTRUCTION OF MINIMUM IMPROVEMENTS Section 4.1. Construction of Minimum Improvements. The Developer agrees that it will cause the Minimum Improvements on the Development Property to be constructed substantially in conformance with the approved Construction Plans . The Developer agrees that the scope and scale of the Minimum Improvements to be constructed shall not be significantly less than the scope and scale of the Minimum Improvements as detailed and outlined in the Construction Plans. Section 4 .2 . Construction Plans. The Developer shall cause to be provided to the City Construction Plans, which shall be subject to approval by the City as provided in this Section 4 .2 . The Construction Plans shall provide for the Minimum Improvements to be constructed on the Development Property, and shall be in conformity with this Agreement, and all applicable state and local laws and regulations. The City shall approve the Construction Plans in writing if: (a) the Construction Plans conform to the terms and conditions of this Agreement; (b) the Construction Plans conform to the terms and conditions of the Development Program; (c) the Construction Plans conform to all applicable federal, state and local laws, ordinances, rules and regulations; (d) the Construction Plans are adequate for purposes of this Agreement to provide for the construction of the Minimum Improvements; and (e) no Event of Default under the terms of this Agreement has occurred; provided, however, that any such approval of the Construction Plans pursuant to this Section 4 .2 shall constitute approval for the purposes of this Agreement only and shall not be deemed to constitute approval or waiver by the City with respect to any building, zoning or other ordinances or regulation of the City, and shall not be deemed to be sufficient plans to serve as the basis for the issuance of a building permit if the Construction Plans are not as detailed or complete as the plans otherwise required for the issuance of a building permit. The Construction Plans must be rejected in writing by the City within thirty (30) days of submission or shall be deemed to have been approved by the City. If the City rejects the Construction Plans such rejection must be in writin and must specify with artieularity the reasons for such rejection. The Developer shall submit new or corrected Construction Plans within thirty (30) days after receipt by the Developer of the written notification of the rejection rded by a wz It t-elk btet=Trrer L - i Lh - Ci Ly Ole tt'SF3Ct.t.� 111 which the ambLru ..tion Plans s,Lala.Lted LI Lie 965316.Red v2 to v1; 12/11/98 11 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 16:58 P. 16 Beve•3.vy=1. fall Lv L - -. . - - - -4=2. The provisions of this Section 4.2 relating to approval, rejection and resubmission of corrected Construction Plans shall continue to apply until the Construction Plans have been. approved by the City; provided, however, that in any event the Developer shall submit Construction Plans which are approved by the City or commencement of construction of the Minimum Improvements. , Approval of the Construction Plans by the City shall not relieve the Developer of any obligation to comply with the terms and provisions of this Agreement, or the provision of applicable federal, state and local laws, ordinances and regulations, nor shall approval of the Construction Plans by the City be deemed to constitute a waiver of any Event of Default. If the Developer desires. to make any material change in the Construction Plans after their approval by the City, the . Developer shall submit the proposed change to the City for its approval . If the Construction Plans, as modified by the proposed change, conform to the approval criteria listed in this Section 4 .2 with respect to the original Construction Plans and do not constitute a material modification to the scope, size or use of the Project or to the site plan therefor, the City shall approve the proposed change. Such change in the Construction Plans shall be deemed approved by the City unless rejected in writing within ten (10) days by the City with a statement of the City' s reasons for such rejection. Section 4 .3 . Commencement and Completion of Construction. Subject to Unavoidable Delays, the Developer shall cause construction of the Minimum Improvements to be commenced on or before , lD0 March 1, 198. Subject to Unavoidable Delays, the Developer shall have substantially completed the Minimum Improvements on or before December 31, 1998 . All work with respect to the Minimum Improvements. to be constructed or provided by the Developer on the Development Property shall be in substantial conformity with the Construction Plans as submitted by the Developer and approved by the City. The Developer agrees that it shall cause to be allowed designated representatives of the City to enter upon the Development Property during the construction of the Minimum Improvements to inspect such construction during normal working hours, on reasonable advance written notice of such inspection. 96S316.Red y2 to vs,; 12/11/9e 12 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 16:58 P. 17 • ARTICLE V • INSURANCE Section 5.1. Insurance. (a) The Developer will provide and maintain or cause to be maintained at all times during the process of constructing the Minimum Improvements (and, from time to time at the request of the City, furnish the City with certificates of insurance on) : (i) Builder's risk insurance, written on the so-called "Builder's Risk -- Completed Value Basis" in an amount equal to one hundred percent (100%) of the insurable value of the Minimum Improvements at the date of completion, and with coverage available on the so-called "all risk" form of policy; (ii) Commercial general liability insurance (including operations, premises, "X.C.U. " where applicable, Products/Completed Operations, Contractual Liability, Broad Form Property Damage and Independent Contractors with limits against bodily injury and property damage of not less than $1, 000, 000, together with excess umbrella limits of not less than $1, 000, 000; and (iii) Worker's compensation insurance, with statutory coverage. (b) Upon completion of construction of the Minimum Improvements and prior to the Termination bate, the Developer shall maintain, or cause to be maintained, at its cost and expense, insurance as follows: (i) Insurance against loss and/or damage to the Minimum Improvements under a policy or policies covering suchrisks as are ordinarily insured against by similar businesses, including (without limiting the generality of the foregoing) fire, extended coverage, vandalism and malicious mischief, explosion, water damage, demolition cost, debris removal, and collapse in an amount not less than the full insurable replacement value of the Minimum Improvements, 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 co-insurance provisions or otherwise, without the prior consent thereto in writing by the City. The term 965316.Red V2 to v1; 12/11/98 13 BRIGGS&MORGRN Fax:6512236645 Dec 11 '98 16:59 P. 18 "full insurable replacement value" shall mean the actual replacement cost of the Minimum Improvements (excluding foundation and excavation costs and costs of underground flues, pipes, drains and other uninsurable items) and equipment. All policies evidencing insurance required by this subparagraph (i) with respect to the Minimum Improvements shall be carried in the name of• the Developer. The City and the holder of the First Mortgage will be represented on such policies, as their respective interests may appear. (ii) Commercial general public liability insurance, including personal injury liability for' injuries to. persons and/or damages to property, including any injuries resulting from the operation of automobiles or other motorized vehicles on or about the Development Property, in the minimum amount for each year of $1, 000, 000 (together with excess umbrella limits of not less than $1, 000, 000) . (iii) 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 Article V shall be taken out and maintained in responsible insurance companies selected by the Developer which are authorized under the laws of the State to assume the risks covered thereby. The Developer shall deposit annually with the City a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Article V, each policy shall contain a provision that the insurer shall not cancel or materially modify it without giving written notice to the Developer and the City at least thirty (30) days before the cancellation or modification becomes effective. As soon as reasonably possible, the Developer shall furnish the City evidence satisfactory to the City that the policy has been renewed or replaced by another policy conforming to the provisions of this Article V, or that there is no necessity therefor under the terms hereof. In lieu of separate policies, the Developer may maintain a single policy, or blanket or umbrella policies, or a combination thereof, which provide the total coverage required herein, in which event the Developer shall deposit with the City a certificate or certificates of the respective insurers as to 965316.Red V2 to 1,1; 12/11/98 14 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 16:59 P. 19 • the amount of coverage in force upon the Minimum Improvements. • (d) The Developer agrees, to notify the City immediately in the case of damage exceeding $100, 000 in amount to, or destruction of, the Minimum Improvements or any portion thereof resulting from fire or other casualty. Subject to the provisions of any First Mortgage, Net Proceeds of any insurance shall be paid directly to the Developer, and the Developerwill forthwith repair, reconstruct and restore the Minimum Improvements to substantially the same or an improved condition or value as they existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restoration, the Developer will apply the Net Proceeds of any insurance relating to such damage received by the Developer to the payment or reimbursement of the costs thereof. (e) The Developer shall complete the repair, recon- struction and restoration of the Minimum Improvements, whether or not the Net Proceeds of insurance received by the Developer for such purposes are sufficient. Section 5 .2 . Relationship to Mortgagee. The provisions of • Section 5 . 1 shall be subject to the subordination, modification and waiver provisions of Section 8 . 6 but shall otherwise remain in full force and effect with respect to the Developer' s obligations to maintain insurance, notify the City of any casualty and reconstruct the Minimum Improvements upon such casualty unless provision is made to the satisfaction of the City for the reimbursement of all public redevelopment costs incurred by the City in connection with the Project. • 965316.Red Nn to Vi, 12/3.2./9a 15 • • BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:00 P.20 • ARTICLE VI- ASSESSMENT I...ASSESSMENT AGREEMENT AND OTHER COVENANTS Section 6.1 . Execution of Assessment Agreement . The Developer shall agree to, and with the City and the County Assessor shall execute, prior to commencement of construction of the Minimum Improvements, an Assessment Agreement pursuant to the provisions of Minnesota Statutes, Section 469. 177, Subdivision 8, specifying the Assessor's Minimum Market Value for the Development Property for calculation of real property taxes. Specifically, the Developer shall agree to a market value for the Development Property and the Minimum Improvements in an amount of $ as of January 2, 2Q00 (such minimum market value is herein referred to as the "Assessor's Minimum Market Value") . Nothing in the Assessment Agreement or this Agreement shall limit the discretion of the County Assessor to assign a market value to the property in excess of such Assessor' s Minimum Market Value nor prohibit the Developer from seeking through the exercise of legal or administrative remedies a reduction in such market value for property tax purposes. The Developer may seek a reduction of such market value provided that it shall not seek a reduction below the Assessor's Minimum Market Value in any year so long as the Assessment Agreement shall remain in effect. The Assessment Agreement and this Agreement shall remain in effect until the earlier of the date the Tax Increment Bonds are paid in full, or (ii) the date on which the Tax Increment District expires or is otherwise terminated in its entirety (the "Termination Date") . The Assessment Agreement shall be certified by the County Assessor as provided in Minnesota Statutes, Section 469 .177, Subdivision 8, upon a finding by the County Assessor that the Assessor' s Minimum Market Value represents a reasonable estimate based upon the plans and specifications for the Minimum Improvements to be constructed on the Development Property and the market value previously assigned to the Development Property. Pursuant to Minnesota Statutes, Section 469. 177, Subdivision 8, the Assessment Agreement shall be filed for record in theoffice of the county recorder ,or registrar of titles of Ramsey County, and such filing shall constitute notice to any subsequent encumbrancer or purchaser of the Development Property, whether voluntary or involuntary, and such Assessment Agreement shall be binding and enforceable in its entirety against any such subsequent purchaser or encumbrancer, including the holder of any First Mortgage. Section 6 .2 . Real Property Taxes. The Developer shall prior to the Termination Date pay all real property taxes payable with respect to all parts of the Development Property acquired and owned by it and pursuant to the provisions of the Assessment Agreement and any other statutory or contractual duty that shall 965316.Red v3 Co VI; 2.3/11/38 16 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:00 P.21 • accrue subsequent to the date of its acquisition of title- to the Development Property (or part thereof) and until title to the . property is vested in another person. The Developer agrees that prior to the Termination Date: (a) It will not seek administrative review or judicial review of the applicability of any tax statute relating to . the ad valorem property taxation of real property contained on the Development Property determined by any tax official to be applicable to the Project or the Developer or raise the inapplicability of any such tax statute as a defense in . any proceedings with respect to the Development Property, including delinquent tax proceedings; provided, however, "tax statute" does not include any local ordinance or resolution levying a tax; (b) It will not seek administrative review or judicial review of the constitutionality of any tax statute relating to the taxation of real property contained on the Development Property determined by any tax official to be applicable to the Project or the Developer or raise the unconstitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings with respect to the Development Property; provided, however, "tax statute" does not include any local ordinance or resolution levying a tax; (c) It will not seek any tax deferral or abatement, either presently or prospectively authorized under Minnesota Statutes, Section 469. 181, or any other State or federal law, of the ad valorem property taxation of the Development Property between the date of execution of this Agreement and the Termination Date. Section 6. 3 . Payment In-Lieu of Taxes. For the consideration recited in Section fr-g 3.2 above, the Developer agrees to pay the City the sum of $ 5109,250 on May 15, 2000 and October 15, 2000 . 965316.Red V2 to V1; 12/1x/96 17 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:01 P.22 AM ARTICLE VII TAX INCREMENT SHORTFALL GUARANTY • Section 7.1. Developer's Agreement to Pa3 Tex Increment Deficiency.. If as of any January 1 or July 1, commencing --July 1, 2000 to and including January 1 , the Tax Increments received by the City in the prior 6' months is less than a amour necessa to a the semiannual principal and interest on the Tax Iacr _eat Boads after takin into accountca italzzed 'interest included in the ri.uci al amount of the Tax Increment Bonds and the a eat in lieu of taxes., the Developer will upon fifteen (15) days written notice from the City to the Developer pay to the City an amount equal to the deficiency. As security for the guaranty under this Section 7.1 and as security for the performance of the obligations of the Developer. contained in this Agreement, the Developer shall simultaneously with the execution of this Agreement, deliver to the City an irrevocable letter of credit issued by a financial institution and in a form satisfactory to the City in the amount of $ $ ].8,500. The letter of credit shall expire on aid en no earlier than February 1. 2000 and no earlier than Februar 1, 2000 and no earlier than Februa.. 1 of each year thereafter and the Developer must replace or renew the letter of credit in a form satisfactory to the City not less than 30 days prior to its expiration. The obligation to maintain the letter of credit pursuant to this Section -74. 7 .1 shall be in effect until the Maturity Date. insert Persona arty_ of princi is of the Developer?1 965316.Red V2 to v1: 12/11/99 18 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:01 P.23 ARTICLE VIII MORTGAGE FINANCING Section 8 .1 . Limi ation U on P cumbrance of Pr ert . Prior to the completion of the Minimum Improvements, as determined by the City, neither the Developer nor any successor in interest to the Development Property or any part thereof shall engage in any financing or any other transaction creating any mortgage, or other encumbrance or lien upon the Development Property, whether by express agreement or operation of law, except : (a) nY Morgage which the Develo•er •urchases thi Develo en Pro ert sub i ect to• aid ,(b) for the. purposes of obtaining funds in an amount not exceeding the cost of the Development Property and the Minimum Improvements (including, but not limited to, labor and materials, equipment, professional fees, real estate taxes, construction interest, organization and other indirect costs of development, costs of constructing the Minimum Improvements, an allowance for contingencies, costs of any financing to fund construction or acquisition of the Project, amounts required to fund any reserves relating to construction or acquisition of the Project, and amounts required to fund any required escrow accounts) ; and only upon the prior written approval of the City in accordance with Sections 8 .1 and 8 .2 . The City shall not approve any Mortgage which does not contain terms that conform to the terms of Section 8 .5, except as provided in Section 8 . 6 of this Agreement. Section 8 .2 . AAoroval of MThe City shall approve a Mortgage if: o fi aaae_ (a) the City first receives a copy of all mortgage documents; (b) the mortgage loan, together with other funds available to the Developer, will, in the reasonable judgment of the City, be sufficient to construct the Minimum Improvements; 965316.Red v2 to v1! 12/11/99 19 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17 01 P.24 (c) the City is not entitled under Section 10. 02 to exercise any of the remedies set forth therein as a result of an Event of Default; . (d) the City determines that the terms of the. Mortgage conform to the terms of Section 8.5 . Section 8 .3 . Notice of Defaults Copy to Mortctagee. Whenever the City shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer ' in his obligations or covenants under the Agreement, the City shall at the same time forward a copy of such notice or demand to each holder of any Mortgage authorized by the Agreement at the last address of such holder shown in the records of the City. Section 8 .4. Mortgagee' s Option to Cure Defaults. After any breach or default referred to in Section 8 .3, each such holder of a Mortgage shall (insofar as the rights of the City are concerned) have the right, at its option, to cure or remedy such breach or default (or such breach or default to the extent that it relates to the part of the Development Property covered by its mortgage) and to add the cost thereof to the Mortgage debt and the lien of its Mortgage; provided, however, that if the breach or default is with respect to construction of the Minimum Improvements, nothing contained in. this Section or any other Section of this Agreement shall be deemed to require such holder, either before or after foreclosure or action in lieu thereof, to undertake or continue the construction or completion of the Minimum Improvements, provided that any such holder shall not devote the Development Property to a use inconsistent with the Development Program or this Agreement without the agreement of the City. Section 8 .5 . v' s Option to Cure Default on Mqrtgage. Any Mortgage authorized pursuant to this Article VIII, and executed by the Developer or any subordination agreement relating to such mortgage entered into by the City with respect to the Development Property or any improvements thereon shall provide that, in the event that :the Developer is in default under such Mortgage and the holder, of the Mortgage notifies the Developer of such default, the holder of the Mortgage shall also notify the City in writing of: (a) the fact of the default; (b) the elements of the default; and (c) the actions required to cure the default. If the default is an "Event of Default" under such Mortgage, which shall entitle such holder thereof to foreclose upon the 965316-Red V2 co vi; 1z/11/9e 20 miou J1UK(HN Fax:6512236645 Dec 11 '98 17:02 P.25 Development Property, the Minimum Improvements or any portion thereof, and any applicable grace periods have expired, the City shall have, and each Mortgage executed by the Developer or any subordination agreement relating to such Mortgage entered into by the City, with respect to the Development Property or any improvements thereon shall provide that the City shall have such an opportunity to cure the "Event of Default" within such reasonable time period as the holder shall deem appropriate. Section 8 .6. Subordination and Modification ,for thq Aenefit of Mortgagees. (a) In order to facilitate the obtaining of financing for the construction or purchase of the Minimum Improvements by the Developer, the City agrees to subordinate their rights under this Agreement and for the purposes described in Section 8 . 1 (a) of this Agreement, but only provided that the First Mortgage provides that if the holder of the First Mortgage• shall foreclose on the Development Property, the improvements thereon, or any portion thereof, or accept a deed to the Development Property in lieu of foreclosure, it shall consent to the Assessor's Minimum Market Value set forth in the Assessment Agreement and provided that such subordination shall not relieve the Developer of its obligation hereunder to restore the Development Property in the event of damage, destruction or condemnation of all or any part of the Development Property. (b) In order to facilitate the obtaining of financing for the construction of the Minimum Improvements, the City agrees that it shall agree to any reasonable modification of this Article VIII or Article V, intercreditor agreement or waiver of its rights hereunder to accommodate the interests of the holder of the First Mortgage, provided, however, that the City determines, in their reasonable judgment, that any such modification(s) will adequately protect the legitimate interests and security of the City with respect to the Project and the Development Program. The City also agrees to consider such modification(s) of this Article VIII with respect to other folders, and to agree to such modifications if the City deems such modification(s) necessary and reasonably, 965316,Red V2 to V1; 12/11/9g 21 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:02 P.26 • ARTICLE IX •• PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER; INDEMNIFICATION Section 9 .1. Transfer of Substantially All Assets. As security for the obligations of the Developer under this Agreement, the Developer represents and agrees that prior to the Termination Date, the Developer will not dispose of all or substantially all of th=1.6 itsassets; provided that the • -Developer may sell or otherwise transfer to any Person all or • substantially all of its assets and thereafter be discharged from liability hereunder (except as otherwise provided under clause (ii) (B) below) if (i) the transferee Person assumes in writing ' all of the obligations of the Developer under this Agreement and the Assessment Agreement; and (ii) the City receives either (A) such new security from the successor Developer to assure completion of the Project and payment of any deficiencies in Tax Increments under Section 7.1 as the City reasonably deems necessary or desirable, or (B) such evidence as the City shall reasonably require, including an opinion of counsel, that the existing obligations provided pursuant to Section 7.1 will remain in effect and will be enforceable against the existing Developer upon a default by the successor•Developer with respect to completion of the Project or payment of such shortfall in Tax Increments . Section 9 .2 . Prohibition Aaainst Transfer of Property and Assignment of Agreement. The Developer represents and agrees that prior to the Termination Date: (a) The Developer will not make or create or suffer to be made or created any total or partial sale, assignment, conveyance, or lease lather than an operating lease) , or any trust or power, or transfer in any other mode or form of or with respect to the Agreement or the Development Property or any part thereof or any interest therein, or any contract or agreement to do any: of the same, without the prior written approval of the City, to be given as provided in clause (b) below. (b) Except as otherwise provided in the Agreement, the City shall authorize transfer and release the Developer from liability hereunder and under the Assessment Agreement provided that the following conditions are met : (i) Any proposed transferee shall have the qualifications and financial responsibility, in the reasonable judgment of the City, necessary and adequate 965316.Red V2 to V ; 12/11/95 22 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:03 P.27 to fulfill the obligations undertaken in this Agreement by the Developer. (ii) Either (A) the proposed transferee, by instrument in writing satisfactory to the City and in form recordable among the land records, shall, for itself and its successors and assigns, and expressly for the benefit of the City, have expressly assumed all of the obligations of the Developer under this Agreement and agreed to be subject to all the conditions and restrictions to which the Developer is subject, or (B) the Developer agrees to continue to fulfill those obligations, in which case the preceding provisions of this Section 9 .2 (b) shall not apply) . Section 9 .3 . Release and Indemnification Covenants . (a) Except for any willful misrepresentation or any negligent act, willful or wanton misconduct or any unlawful act of the indemnified parties, the Developer releases the City and the governing body members, officers, agents, servants and employees thereof (hereinafter, for purposes of this Section 9 .3, the "indemnified parties") from, covenants and agrees that the indemnified parties shall not be liable for, and agrees to indemnify and hold harmless the indemnified parties against, any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Minimum Improvements. (b) Except for any willful misrepresentation or any negligent act, willful or wanton misconduct or any unlawful act of the indemnified parties, the Developer agrees to protect and defend the indemnified parties, now or forever, and further agrees to hold the indemnified parties harmless, from any claim, demand, suit, action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising (i) from any violation of any agreement or condition of this Agreement by the Developer (except with respect to any suit, action, demand or other proceeding brought by the Developer against the City to enforce its rights under this Agreement) or (ii) the acquisition, construction, installation, ownership, and operation of the Minimum Improvements by the Developer. (c) The indemnified parties shall not be liable for any damage or injury to the persons or property of the Developer or its officers, agents, servants or employees or any other person who may be about the Minimum Improvements due to any act of negligence of any person, other than any 965316.Red V22 to v1; 12/11/98 23 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:03 P.28 act of negligence on the part of any such indemnified party or its officers, agents, servants or employees. (d) All covenants, stipulations, promises, agreements and obligations of the City contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the City, respectively, and not of any governing body member, officer, agent, servant or employee of the City in the individual capacity thereof. Section 9.4 . Approvals. Notwithstanding Section 9 .1 and 9.2,. any approval of a transfer of interest in the. Developer, this Agreement, or all or a part of the Development Property required to be given• by the City under this Article IX may be denied only in the event that the City reasonably determines that the ability of the Developer to perform its obligations under this Agreement and its obligation, to pay &gl valorem real property taxes assessed with respect to the Development Property, or the overall financial security provided to the City under the terms of this Agreement, or the likelihood of the Minimum ' Improvements being successfully constructed and operated and maintained pursuant to the terms of. this Agreement, will be materially impaired by the action for which approval is sought. 965316.Red V2 to vy; 13/11/98 24 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:04 P.29 ARTICLE X DEVELOPER EVENTS OF DEFAULT Section 10. 1. Events of Default Defined. Any one or more of the following shall be an "Event of Default" under this Agreement: (a) Failure by the Developer to timely pay pursuant to Article VI all ad valorem real property taxes assessed with respect to the Development Property, or to pay any deficiency in Tax Increments derived from the Development Property as required by Section 7. 1. (b) Failure by the Developer to cause the construction of the Minimum Improvements to be commenced and completed pursuant to the terms, conditions and limitations of Article IV. (c) Failure by the Developer to cause the Minimum Improvements to be reconstructed when required pursuant to Section 5. 1. (d) Transfer of any interest in the Developer or the Project in violation of the provisions of Article IX. (e) Failure by the Developer to substantially observe. or perform any other material covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement . (f) The holder of any Mortgage on the Development Property, or any improvements thereon, or any portion thereof, commences foreclosure proceedings as a result of any default under the applicable Mortgage documents. (g) The Developer shall (A) file' any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act of 1978, as amended or under any similar federal or state law; or (B) make an assignment for the benefit of its creditors; or (C) admit in writing its inability to pay its debts generally as they become due; or 965316_Red V2 20 V1, 12/11/98 25 BRIGGS&MORGRN Fax:6512236645 Dec 11 '98 17:04 P.30 (D) .. be adjudicated a bankrupt or insolvent; or if a petition or answer proposing the adjudication of the Developer, as a bankrupt or its reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee or liquidator of the Developer, or of the Project, or part thereof, shall be appointed in any proceeding brought against the Developer, and shall. not be discharged within ninety (90) days after such appointment, or . if the Developer, shall consent to or acquiesce in such appointment. Section 10 .2 . Remedies on Default. Whenever any Event of Default referred to in Section 10.1 occurs and is continuing, the City may take any one or more of the following actions after (except in the case of an Event of Default under subsections (a) or (g) of Section 10-1) the giving of thirty (30) days ' written notice to the Developer and the holder of the First Mortgage of the Event of Default by the City, but only if the Event of Default has not been cured within said thirty (30) days, or if the Event of Default cannot be cured within thirty (30) days and , the Developer does not provide assurances to the City reasonably satisfactory to the City that the Event of Default will be cured as soon as reasonably possible. (a) The City may suspend its performance under this Agreement until it receives assurances from the Developer, deemed adequate by the City, that the Developer will cure its default and continue its performance under this Agreement. (b) The City may draw upon any guarantee or security provided to the City pursuant to any of the terms of this Agreement according to its terms. (c) The City' may take any action, including legal or administrative action, which may appear necessary or desirable to collect any payments due under this Agreement, to sue for money damages, or to enforce performance and observance of any obligation, agreement, or covenant of the Developer under this Agreement. Section 10 .3 . No Remedy Exclusive. No remedy herein conferred upon or reserved to the City is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter 965316.Red V2 to v7.; 12/11/98 26 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:05 P.31 existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. Section 10.4. No Implied Waiver. In the event any agreement contained in this Agreement should be breached by any party and thereafter waived by any other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. Section 10 .5. Acreement to Pav Attorney' s Fees and Expenses. Whenever any Event of Default occurs and the City shall employ attorneys or incur other reasonable expenses for the collection of payments due or to become due orfor the enforcement or performance or observance of any obligation or agreement on the part of the Developer herein contained, the Developer agrees that it shall, on demand therefor, pay to the . City the reasonable fees of such attorneys and such other reasonable expenses so incurred by the City. Section 10. 6 Develover Remedies on Default . In the event the City fails to substantially observe or perform any other material covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement the Developer may take any action, including legal or administrative action, which may appear necessary or desirable to collect any payments due under this Agreement, to sue for money damages, or to enforce performance and observance of any obligation, agreement or covenant of the City under this Agreement. 965316.Red V2 to vi; 22/x1/921 27 BRIGGS&MORGRN Fax:6512236645 Dec 11 '98 17:05 P.32 ARTICLE XI ADDITIONAL PROVISIONS • Section 11.1. Restrictions on Use. The Developer agrees for itself, assigns and every successor in interest to the Development Property, or any part thereof, that the Developer and such successors and assigns shall during the term of this Agreement operate the Minimum Improvements as a C ilitp hotel convention and ban. et facilit or such o her use as permitted wader the. Cityts zoning codes. Section 11 .2 . Conflicts of Interest. No member of the governing body or other official of the City shall have any financial interest, direct or indirect, in this Agreement, the Development Property or the Minimum Improvements, or any contract, agreement or other transaction contemplated to occur or be undertaken thereunder or with respect thereto, nor shall any such member of the governing body or other official participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. No member, official or employee of the . City shall be personally liable to the Developer in the event of ' any default or breach by the city under the terms of this Agreement . Section 11.3 . Titles of Articles and Sections. Any titles of the several parts, articles and Sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 11.4 . Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand or other communication under this Agreement by any party to any other • shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or deliveredpersonally, and (a) in the case of the Developer is addressed to or delivered personally to: 965316.Red 112 to V1; 22/11/98 28 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:05 P.33 With a copy to: (b) in the case of the City, is addressed to or delivered personally to the City at : City of Mounds View 2401 Highway 10 Mounds view, Minnesota 55172-1499 Attn: City Administrator (c) in the case of the holder of the First Mortgage, is addressed or delivered personally to the address supplied; or at such other address with respect to any such party as that party may, from time to time, designate in writing and forward to the other, as provided in this Section. Section 11 .5 . Counterparts. This Agreement may be executed , in any number of counterparts, each of which shall constitute one and the same instrument. Section 11. 6. Modification. If the Developer is requested by the holder of a Mortgage or by a prospective holder of a prospective Mortgage to amend or supplement this Agreement in any manner whatsoever, the City will, in good faith, consider the request with a view to granting the same unless the City, in their reasonable judgment, conclude that such modification is not in the public interest, or will significantly and undesirably weaken the financial security provided to the interests of the City by the terms and provisions of this Agreement . Section 11. 7. Law Governing. This Agreement will be governed and construed in accordance with the laws of the State. Section 11. 8 . Legal Opinions. Upon execution of this Agreement the Developer shall deliver an opinion of counsel to the Developer in the form attached hereto as Exhibit E. Section 11 . 9 . Jobs Act. In order to satisfy the provision of Minnesota Statutes, Section 116J.991 (the "Jobs Act" ) , the Developer agrees to satisfy certain minimum wage and employment goals by causing to be created within two years from the date of this Agreement at least —30 full time equivalent jobs at the Project in connection with the operation thereof at an average 965316.Red va to vi: i2/i1/* 29 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:06 P.34 hourly wage of at least $-$7..50 per hour. Upon satisfying these goals, nothing herein shall beconstrued as imposing on the. Developer any obligation beyond any obligation otherwise imposed by law to cause such minimum employment and wage levels to be maintained. In the event that these goals are not met, the Developer, the City shall enter into an agreement providing for the repayment to the City of the financial assistance provided by the City to the Developer pursuant to this Agreement. If the Jobs Act is amended or repealed, this Section 11. 9 and Section 11 . 10 (as applied to the Jobs Act) shall be deemed amended or shall terminate and be of no force and effect to conform to said amendment or repeal, as the case may be. Section 11. 10. Reports. Subject to Section 11.9, the Developer shall provide the City reports in a timely manner with such information about the Project as the City may reasonably request, including information regarding goals as to minimum employment and wage levels set forth in Section 11.9, for purposes of satisfying any reporting requirements imposed by law on the City. Section 11.11.. City Approvals. Any approval, execution of documents, or other action to be taken by the City pursuant to this Agreement, for the purpose of carrying out the terms of this Agreement or for the purpose of determining sufficient ' performance by Developer under this Agreement, may be made, executed or taken by the Mayor and Administrator of the City without further approval by the City Council. The Mayor and Administrator of the City may, but shall not be required to, consult with other City staff with respect to such matters. Section 11.12 . Rule of Construction. The parties agree that this Agreement is not intended, nor shall it be construed, as a joint venture or other partnership between the City and the Developer or as empowering the Developer to act as an agent of the City, it being the intent of the parties that the Developer is at all times acting as an independent contractor and not as a partner or agent of the City. 965316.Red v2 is Vi; i2/it/ss 30 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:06 P.35 IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its name and on its behalf and its seal tobe hereunto duly affixed, and the Developer. has caused this Agreement to be duly executed inits name and on its behalf, on or as of the date first above written. CITY OF MOUNDS VIEW By Its Mayor By Its City Administrator (SEAL) This is a signature page to the Development Agreement dated as of , 1998, by and between the City of Mounds view and 965326.Red 113 to Vi; 12/21/90 31 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17 06 P.36 By Its By Its This is a signature page to the Development Agreement dated as of , 1998, by and between the City of Mounds View and l65316.Red vz eo vi; z2/1x/99 32 IJK1bb MUKbAN Fax:6512236645 Dec 11 '98 17:07 P.37 EXHIBIT A ASSESSMENT AGREEMENT THIS AGREEMENT, dated as of this day of 1998 by and among the City of Mounds View (the "City") , a (the "Developer") , and the Ramsey County Assessor (the "Assessor' ) . WITNESSETH WHEREAS, on or before the date hereof the City and Developer have entered into a Development Agreement dated as of , 1998 (the "Agreement") regarding certain real property located in the city (the "Development Property") . WHEREAS, it is contemplated that pursuant to said Agreement, the Developer will undertake the construction of a hotel convention and ban et facility (the "Project") on the Development Property in accordance with plans and specifications approved by the City. WHEREAS, the City and Developer desire to establish a minimum market value for the Z✓vi.tivii of the Development Property and the improvements constructed or to be constructed thereon, pursuant to Minnesota Statutes, Section 469.177. WHEREAS, the Developer has acquired the Development Property consisting of land, the legal description of which is attached hereto as Exhibit A. WHEREAS, the City and the Assessor have reviewed plans and specifications for the Project. NOW, THEREFORE, the parties to this Agreement, in consideration of the promises, covenants and agreements made by each to the other, do hereby agree as follows: 1. As of January 2, 2000, the minimum market value, which shall be assessed for the Project, shall not be less than 2 . The minimum market value herein established shall be of no further force and effect and this Agreement shall terminate on the earlier of the date the Tax Increment Bonds (as defined in the Agreement) are paid in full and (ii) the date on which the Tax Increment District expires or is otherwise terminated. 965316-Red V2 to vi; 12/11/90 A-1 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:07 P.38 3 . This Agreement shall be recorded by the City with the County Recorder of Ramsey County, Minnesota. The Developer shall pay all costs of recording. 4 . The Assessor represents that he has reviewed the plans and specifications for the. improvements and the market values previously assigned to the land upon which the improvements are to be constructed and that the "minimum market value" as set forth above is reasonable. S . Neither the preambles nor provisions of this Agreement are intended to, or shall they be construed as, modifying the terms of the Agreement between the City and the Developer. 6 . This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties. IN' WITNESS WHEREOF, the City, the Developer and the Assessor have caused this Agreement to be executed in their names and on their behalf all as of the date set forth above. CITY OF MOUNDS VIEW (SEAL) By Its Mayor By Its Administrator 965316.Red V2 t0 v1) 12/1L/98 A-2 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:07 P.39 By Its By Its • Signature page for Assessment Agreement by and between the City of Mounds View and and the Ramsey County Assessor. 965316.Red v3 to vi; i2/ii/98 A-3 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:07 P.40 • CERTIFICATION BY COUNTY ASSESSOR The undersigned, having reviewed the plans and • specifications for the improvements to be constructed and the market value assigned to the land upon which the improvements are to be constructed, and being of the opinion that the minimum market value contained in the foregoing Agreement appears reasonable, hereby certifies as follows: The undersigned Assessor, being legally responsible for the assessment of the above described property, hereby certifies that the market values assigned to such land and improvements are reasonable. County Assessor for Ramsey County STATE OF MINNESOTA ) ss. COUNTY OF This instrument was acknowledged before me on 199 , by , the County Assessor of Ramsey County. Notary Public This Instrument Drafted By: Briggs and Morgan, P.A. 2200 First National Bank Building St . Paul, MN 55101 Signature page for Assessment Agreement by and between the City of Mounds View and and the Ramsey County Assessor. 96532.6.Red V2 to V1; 7.3!13/913 A-4 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:08 P.41 CONSENT TO ASSESSMENT AGREEMENT The , of (the "Bank") , does hereby consent to all terms, conditions and provisions of the foregoing Assessment Agreement and agrees that, in the event it purchases the Development Property at a foreclosure sale or acquires the Development Property through a deed in lieu of foreclosure or otherwise in satisfaction of the indebtedness owed by the Developer, it and its respective successors and assigns, shall be bound by all terms and conditions of the Assessment Agreement, including but not limited to the provision which requires that the market value of the Development Property is reasonable. IN WITNESS WHEREOF, we have caused this Consent to Assessment Agreement to be executed in its name and on its behalf as of this day of , 199_. By Its STATE OF MINNESOTA ) ) ss. COUNTY OF This instrument was acknowledged before me this day of , 199_, by , the of , a , on behalf of the Notary Public 965316.Red v2 to vi; is/ii/st A-5 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:08 P.42 STATE OF MINNESOTA ) ) : ss COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 199_, by , the Mayor and , the Administrator of the City of Mounds View on behalf of said City. Notary Public 965316.Red V2 to Vi; 12/11/98 A-6 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:08 P.43 STATE OF } ) ss. COUNTY OF The foregoing instrument was acknowledged before me this day of , 1998, by , and the and of , on behalf of said Notary Public 9ES316,Red vZ to v1; .2/11/98 A-7 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:08 P.44 EXHXBIT A TO ASSESSMENT AGREEMENT Legal Description 965316.Red va to V1 12/11/99 A-8 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:08 P.45 • EXHIBIT B LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY 96S316.Red V2 to V1: 12/11/98 B-1 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:08 P.46 EXHIBIT C MINIMUM IMPROVEMENTS ,�, unit Motel facility s- are foot ban- et and convention acilit 965316.Red V2 co V1; 12/11/98 C-1 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:09 P.47 EXHIBIT D FORM OF LEGAL OPINION OF DEVELOPER'S COUNSEL • • City of Mounds View 2401 Highway 10 Mounds View, Minnesota 55112-1499 Re: Development Agreement by and between the City of Mounds View, Minnesota and Gentlemen: As counsel for , a (the "Developer") and in connection with the execution and delivery of a certain Development Agreement (the "Development Agreement") between the Developer and the City of Mounds View, Minnesota (the "City") , dated as of . , 1998 we hereby render the following opinion: I have examined the original, certified copy or copies otherwise identified to our satisfaction as being true copies of the following: (a) The Articles of Incorporation and Bylaws of the Developer; (b) Resolution of the Developer which authorizes the transactions covered by this opinion; (c) The Development Agreement; and and such other documents and records as I have deemed relevant and necessary as a basis for the opinion set forth herein. Based on the pertinent law, the foregoing examination and such other inquiries as I have deemed appropriate, I am of the opinion that: 1 . The Developer has been duly organized and is validly existing as a under the laws of the State of The Developer has full power and authority to execute, deliver and perform in full the Development Agreement and the Development Agreement has been duly and validly authorized, executed and delivered by the Developer and, assuming due authorization, execution and delivery by the other party thereto, is in full force and effect and is a valid and legally binding instrument of the Developer enforceable in accordance with its terms, except as the same may be limited by bankruptcy, 964314.Red V2 to v2; 12/11/98 D-1 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:09 P.48 insolvency, reorganization or other laws relating to or affecting creditor's rights generally and general principles of equity. 2 . The consummation of the transactions contemplated by the Development Agreement by the Developer and the carrying out of the terms thereof, will not result in violation of any material provision of, or in material default under, the articles . of incorporation and bylaws of the Developer, or any indenture, mortgage, deed of trust, indebtedness, agreement, judgment, decree or order to which the Developer, is a party or by which it or its property is bound or subject. Very truly yours, • 965316,Red V2 to vz, 12/11/88 D-2 BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:09 P.49 EXHIBIT E LEGAL DESCRIPTION OF ADJACENT DEVELOPMENT PROPERTY LEGAL DESCRIPTION_ OP RENT-ALL PROPERTY. 965316.Rad V2 Lo vll 12/11/98 E-3. BRIGGS&MORGAN Fax:6512236645 Dec 11 '98 17:09 P.50 EXHIBIT F ��LLGAL DESCRI?TION OF REGION PON LAND 965316.Red V2 co V1; 12/11/98 F-1