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270009 �NH17E - CITV CLERK COUIICII � /�� PINK � - FINANCE CITY OF SAINT PAUL CANAF�V - DEPARTMENT �q: ' � �.� BLUE -�.1:A`/7�1R � Fll@ NO. H�—LEGAL Council Resolution Presented By Referred To Committee: Date Out of Committee By Date RESOLUTION APPROVING REDEVELOPMENT CONTRACT AND RATIFYING GRANT OF PARTIAL TAX EXENiPTION � TO SHEPARD PARK PLAZA AND SHEPARD PARK WEST PROJECT WHEREAS, by Resolution, Council File No. 268597 adopted February 22, 1977 and approved March 3, 1977, the Council .of the City of Saint Paul approved the Redevelopment P1an For Shepard Park West, the Project Area of which is described as Lots Four (4) through Thirty-two (32) inclusive, Block Four (4) , Youngman and Lamm' s Addition, according to the plat thereof recorded in the office of the Register of Deeds, Ramsey County, Minnesota, for redevelopment by Shepard Park Plaza, as a redevelopment company under the Redevelopment Company Act, Minnesota Statutes, Sections 462. 591 through 462 . 711; and WHEREAS, in approving said Redevelopment Plan, the Council made certain findings pursuant to Minnesota Statutes, Section 462.521, Subdivision 2, that the land in the Project Area would not be redeveloped without fi�ancial aid t�rough grant of partial tax exemption authorized under Minnesota Statutes , Section 462. 651, Subdivision 1, that the project proposal of Shepard Park Plaza for development of the Project Area �nd the Redevelopment Plantwould afford maximum opportunity, consistent with the sound needs of the community as a whole, for the redevelopment of the Project Area by pri�,ate enterprise, and that the project proposal and Redevelopment Plan conformed to the Comprehensive Pl�n For Saint Paul, the general plan for the development of the community as a whole; and . , COUNCILMEN Requested by Department of: Yeas Nays Hoz�za [n Favor ��• of Ping. and Ecorianic Develc�ment Hunt Levine • __ Against BY Roedler G�Y E. STOUT Sylvester Tedesco Form Approved by City Attorney Adopted by Council: Date Certified Passed by Council Secretary BY � sy Approved by Mayor: Date _ Appr d by Mayor for S i sion to Council By By WHITE - CITV CLERK - • PINK - FINANCE COUI1C11 CANqR� - DEPAR7MENT � �! BLUE - F.IqV4R � GITY OF SAINT PAUL File NO.� � i'� � . Council Resolution Presented By • Referred To Committee: Date Out of Committee By Date -2- WHEREAS, by said Resolution, Council File No. 268597, the Council granted a partial tax exemption to the Project subject to, among other things, the qualification of Shepard Park Plaza as a redevelopment company under the Redevelopment� Company Act and the execution of a Redevelopment Contract between Shepard Park Plaza and the Housing and � Redevelopment Authority of the City of Saint Paul, Minnesota with the requirements of said Act; and WHEREAS, under date of September 19 , 1977, the State Planning Agency acting for the State Housing Commission issued a Certificate of Consent pursuant to Minnesota Statutes , Section 462. 421, Subdivision 20, to the filing of the Certificate of Limited Partnership of Shepard Park Plaza stating that said Certificate of Limited Partnership was consistent with the purposes of and in compliance with the limitations and restrictions imposed on redevelopment companies by Minnesota Statutes, Sections 462. 591 to 462. 711, the Redevelopment Company Act; and WHEREAS, the Housing and Redevelopment Authority of the City of Saint Paul, Minnesota (HRA) and Shepard Park Plaza negotiated a Redevelopment Contract pursuant to provision of Minnesota Statutes, Section 462.645, Subdivision 3, which has been submitted to the State Planning Agency together with an HRA Note Resolution authorizing issuance of $3,200, 000 of housing revenue note under Minnesota Statutes Chapter 474, a Loan Agreement whereby the proceeds of said Note are loaned to the Company for payment of Project costs , and Mortgage by the Company to the Project property to The First National Bank of Saint Paul, the proposed purchaser of the Note, and with evidence of the equity capitalization of the Company; and COUNCILMEN Requested by Department of: Yeas Nays Butler Hozza In Favor Hunt Levine __ Against - BY Roedler Sylvester Tedesco Form Approved by City Attorney Adopted by Council: Date Certified Passed by Council Secretary BY By Approved by Mayor. Date _ Approved by Mayor for Submission to Council By By WHITE - CITV CLERK � . PINK - FINANCE CITY OF SAINT PAITL Council �� CANAR�' - DEPARTMENT BLUE - M'�Y�R •' : 1.,, . File N 0. Council Resolution Presented By Referred To Committee: Date Out of Committee By Date —3— WHEREAS, on October 25, 1977, the State Planning Commission issued a Certificate of Consent and Approval, among other things, consenting to and approving the terms and conditions of the Redevelopment Contract between the HRA and Shepard Park Plaza as being consistent with the purposes of, and in conformity with, the limitations and restrictions imposed on redevelopment companies by the Redevelopment Company Act, and approved the valuation of the land in the Project Area and issuance of �partnership interests in Shepard Park Plaza in return for the con- veyance and contribution of said land to Shepard Park Plaza; and WHEREAS, by its Resolution No. 77-10/26-8, the HRA, among other things, approved the Construction Plans for the Project submitted on October 12, 1977, and approved the Redevelopment Contract with Shepard Park Plaza respecting the Project for execution on behalf of the HRA and for submission to the Council for its consideration and approval which Resolution has been presented to and considered at this meeting, together with the Redevelopment Contract; and WHEREAS, upon consideration of the files and records of the several Council and HRA Board actions respecting the Shepard Park Area and Project, the evidence adduced at the public hearing upon the Redevelopment Plan and proposed project, and the documents, records and reports submitted ' at the HRA Board Meeting of October 26, 1977 and this meeting, it appears necessary and desirable and in the public interest to remove conditions of blight in the Project Area and redevelop the same in accordance with the Redevelopment Plan and Redevelopment Contract. COUNCILMEN Requested by Department of: Yeas Nays Butler Hozza In Favor Hunt Levine __ Against BY Roedler S ylvester Tedesco Form Approved by City Attorney Adopted by Council: Date Certified Yassed by Council Secretary BY By Approved by Mayor: Date Approved by Mayor for Submission to Council BY BY WHI7E - CITV CLERK t PINK - FINANCE COUI1C11 �r� CANARYt- DEPARTMENT GITY �OF� SAINT �PAUL � ��:.!��°�� BLUE � -MAV-Op ,. �. File N . _ Or�lin�cnce Ordinance M 0. Presented By � Referred To Committee: Date • Out of Committee By Date -4- NOW THEREFORE, BE IT RESOLVED by the Council of the City of Saint Paul as follows: l. That the findings and determinations made by Resolution, Council File No. 268597 after public hearing upon the Redevelopment Plan For Shepard Park West, the Project proposed thereby and the grant of partial tax exemption to the Project, pursuant to Minnesota Statutes, Sections 462.521, Subdivision 2, and 462. 651, Subdivision 1, are hereby redetermined, ratified and affirmed, and the Project Area is determined to qualify for treatment under the Municipal Housing and Redevelopment Act including Section 462. 415, Subdivision 6, thereof. 2. That the land in the Shepard Park West Redevelopment Project Area would not be made available, or the Project be financially feasible, for redevelopment in accordance with the Redevelopment Plan For Shepard Park West without a grant of partial tax exemption by this Council and ! without the issuance of Housing Revenue Note of 1977 by the HRA. 3. That the terms and provisions of the Redevelopment Contract, certified by the State Planning Agency as being consistent with the purposes of, and in conformity with, the limitations and restrictions � imposed on redevelopment companies by the Redevelopment Company Act, and the amount, nature and terms of payment for the land to be acquired by Shepard Park Plaza and the acquisition of said land in accordance with the Certificate of Consent and Approval of the State Planning Agency, are hereby approved. COUIVCILMEIV Requested by Department of: Yeas Nays Butler Hozza In Favor Hunt Levine Against BY Roedler Sylvester Tedesco Form Approved by City Attorney Adopted by Council: Date Certified Passed by Council Secretary BY By Approved by Mayor: Date Approved by Mayor for Submission to Council By By �WHITE — CITV CLERK ��a� PINK — F1NAiJCE CITY OF SAINT PAUL Council CANARV�— L)FFPARTMEN�T �'�' C� � � BLUE — MA�V.�2 File NO. Council Resolution Presented By Referred To Committee: Date Out of Committee By Date -5- 4. That the project proposal of the Redevelopment Plan for Shepard Park West does not require the sale or exchange of publicly held land or facilities to Shepard Park Plaza, nor are there any persons or families living in the Project Area who would be displaced by the Project plan or proposal and in need of suitable relocation dwelling accommoda- tions. 5. That the City of Saint Paul does here�ay consent to the Redevel- opment Contract, agree to be bound by its terms and conditions, and that the joinder in said Contract is hereby authorized by execution of the same on behalf of the City by the proper City officers. . COUNCILMEN Requested by Department of: Yeas Nays Butler D2i7�t. of P1nQ_ nd F jle�],n �� Hozza In Favor � ___�C'.C1Y]fa*m�' �g Hunt '� Levine _ Against BY ---�.� Roedler S ylvester Tedesco � � �� 19n, Form Approved City Attorney Adopted b uncil: Date � Cer ed Yass Counc ,ecretary� BY � By Approve y ;VI or: ate Approv Mayor for Submi io o C�uncil By BY ,-, PUBLISHED N l�'�/ 5 1977 � ..... r,._: , • --' ' _� � �._- � -~� ;� � � � � �� CITY OF SAWT PAUL ' INTER-DEPARTMENT MEMORANDUM . � October 25, 1977 � To: HRA Commissioners From: James T. Hart Re: Analysis and Opinion - ShPpard Park Plaza Project BACKGROUND Redevelopment Project. By Resolution No. 77-2/9-1 adopted February 9 , 1977, the HRA Board of Commissioners approved the proposal of Shepard Park Plaza, a Minnesota limited partnership and redevelopment compar.y., to develop an area within the City of Saint Paul identif ied as Shepard Park ti9est, consisting of vacant and undeveloped land determined to be blighted by reason of unusual and difficult physical characteristics of the ground which have prEVented norma� �evelopment of the land by private enterprise resulting in a stagnant and unproductive condit�ion , of land potentially useful and valuable for contributing to the public + health, safety and welfare, as a five story, 101 unit market rate rerital structure by private enterprise without public acquisition o` the area, but with public assistance provided by the grant of a partial tax exemption, and approved the Redevelopment Plan For Shepard Park West to rernove the condition of blight and provide the redevelopment . of decent, safe and sanitary market rental housing providing housing opportunity to a balanced and diverse population accomplishing the public goals and objectives recited in the said Redevelopment Plan. Council Approval of Redevelopment Project. By Resolution, Council File No. 268597 adopted February 2�, 1977 , the Council of the City of Saint Paul, after public hearing, approved the said Redevelopment Plan and Project thereby proposed as removing conditions of blight and providing ' an economic mix in new housing being built in the community in accordance with the recommendations of the Saint Paul Migration Committee, providing incentive for private development of other unproductive land in the vicinity of the Project Area, and enhanc�_ng the tax base of the conununi�y, and granted a partial tax exe;nption to the Project up�n a finding that without such exemption, mortgage financing would not be made available to accomplish the construction of the Project and redevelopment of the Praject Area. � � � . � _. _.___ _------- . ^�>� . , . , . � . � . j HRA Commi s s i one rs � Page 2 October 25, 1977 Project Financial Feasibility. Efforts of Shepard Park Plaza to obtain � conventional mortgage financing for the Project were aided by the partial tax exemption, but the largest mortgage commitment obtainable was $2, 800, 000 at 9-1/2$ annual interest upon a total Project cost of $4, 886,233. The Project was not financially feasible based on this mortgage commit- ment proposal. HRA staff explored the use of housing revenue bonds to be issued by HRA under blinnesota Statutes Chapter 474. The Redeveloper obtained commitment from The First National Bank of Saint Faul to purchase the revenue bond in the amount of $3, 200 , 000 at 7 - 1/4� annual interest. Proceeds of the bond w�uld be made available to the Redeveloper . under a Loan Agreer;�ent with HRA assigned to the Bank and secured by a mortgage on the Project property given by tne Redeveloper to the Bank. Preliminary Approval of a Commercial Development Project. By Resolution No. 77-8/10-8 adopteu August 10 , 1977, the I3RA Board considered that the provision of Project construction and permanent financing would require further public financial assistance, in addition to the partial tax exemption, to enable the Redevelopment Plan For Shepard Park West Project thereby proposed, and land in the Project Area be made available for redevelopment, through undertaking a Commercial Developmer.t Project in aid of the redevelopment undertaking and issuance of revenue bonds under the r•Zunicipal Ii�dustrial Development Act, considered other factors recited in Resoluticn i1o. 77-8/10-8 relevant to undertaking a Chapter 474 Commercial Development Project as �;ell as a Chapter 462 Redevelopm2nt ' Project For Shepard Park 6ti'est, which indicate that revenue bond financing would encourage ans� _pe.rmit economically feasible and sound commercial housing development accomplishing the purposes of the Redevelopment Plan including the removal of blight in the Project Area without more exten- sive public financial assistance such as monetary grants in aid of the � . redevelopment or pualic acquisition of the land in the Project Area, made fact findings in connection with the proposal under consideration, gave preliminary approval thereto and authorized the preparation of all necessary documents to carry out the proposal. DOCUI�lENT REVIE6+J � ' Conformity with Resolutions. I have reviewed drafts of the Development Agreement bet��een HRA and the Redeveloper, the Note Resolution•authorizing HRA issue of Housing Revenue Note of 1977 in the amount. of $3, 200 , 000, Loan Agreeinent between HRA and the Kedeveloper, Assignment of Loan Agreement by HRA to The First National BanY. of Saint Paul, Disbursing Agreeme.nt, and Mortgage and Security Agreement between the Bank, the Redeveloper and its general partners. Fror,► this review, it is my opinion that the several documents are in conformity witY�. the requirements of statute and within � the purposes and directions of the prior Board and Council Resolutions� respecting the Project. ' _ _____ �. . • ��_�� .- Y HRA Commissioners - Page 3 : ��'q;'� October 25, 1977 �� Extent of HRA and City Liability. The liability of the HR.A for payment of the Housing Fevenue Note of 1977 is limited solely and specifically to the revenues and proceeds of the Project under Article Four of the Note Resolution, which are assigned with the Loan Agreement to the Bank. In the event these revenues and proceeds are not sufficient to pay the Note, the Bank ' s recourse is upon the mortgage and guarantees of the partners of tfie Redevelopers. Article 4. 4 of the Note Resolution details the nature of the security and limitation of HRA liability upon the Note. Development Contract Tax Payments. In addition to annual real estate taxes in the amount of $45 , 765 payable as Project operating expense, provision is made in the Development Contract, Paragraph 6. 3 (g) , for payment as additional taxes annually all. remaining earnings after pa��- ment of operating costs, debt service, reserves , and return on equity. (See Operating Pro Form statement) . Further, the Contract provides , Paragraph 7. 2 , that in the event of sale of the Project during the term of the partial tax exemption, the proceeds of sale together with all reserves, be applied �o current operating expenses, current dividend, partners capital contributions , then to repay all accrued taxes for which exernption was granted with interest at 5� per anr.um, and after payment of accrued taxes , the remainder to the partners of Shepard Park Plaza, In the event the Projec� is held and operated bv Shepard Park Plaza for the full term of the e�;emption and then sold repayment of accrued taxes would not be made. Certificate and Cor.sent of the State Planning Commission. The Certifi- cate of Limited Partnership of Shepard Park Plaza, the Development Contract and Loan Agreement document5 , together ��ith the calculation of actual cost of tne Project and equity and mortgage financing commit- . men ts , and construction and related contracts , were submitted to the � . State Planning �gency pursuant to requirements of the Redevelopment Company l�ct, and the State Flanning Agency has given its Certificate of .Consent and Approval to the Project, the Company and the financing arrangements as being consistent with� the requirements of the Act. RESOLUTIOiQS � - Note Resolution. This Resolution authorizes the issuance of Housing Reveriue ilote of 1977 in the amount of $3, 200 , 000, states the purposes of the issue, and sets forth the terms and conditions of payment. Findings include the fact of approval �f a Commercial Development Project, the public purposes to be accomplished thereby, and necessity of issuance of the Note and amount thereof� as necessary to finance Project costs . Resolution A_pprovina Pro�ect and bocuments . This Resolution ratifies prior approvals of r.he Snepard Park West Redevelopment Project and Shepard Park Plaza Corrsr�ercial Development Project, approves tl-.e Develop- ment Agreement, Loan Agreement, Assignment of Loan AgreeMent, Disbursing Agreement, authorizes execution of these �ocuments , ratifies the findir:gs in connection with Resolution No. 77-2/9-1, and approves Construction P].ans tor Shepard Park Ylaza. . _ _. .. .. __ __.. . , _ , � . , . _ _ .__ _ .. - __«.�_...._..____...-_.__._..� A HRA Commissioners Paye 4 . October 25, 1977 ' •�;r'� . _.,.e�. A. FURTHER ACTIONS � After Board approval of the Resolutions, the Development Contract will be submitted to the City Council for its consent to the terms of the Contract and autnorization to joinder in the Contract by the City. Upon completion of this action, the parties would proceed to closing. � ' � � _ . � � . . i � � . � � I _...__._ . .._. . . . I . . . , . � __ ____ _ , , _---.--._.__.___.__ ._... .:, _ , . . n4 . . + . . - : � . . . '__._._. ��. EXHIBIT A CALCULATION OF ACTUAL COST OF THE PROJECT Organizational costs ' $ 30, 000. 00 Surveying and soil tests 1,612 . 00 Planning, general overhead and other administrative expenses 142, 043. 00 Land value 353, 500 . 00 Cost of improvements: • � General construction $3, 711, 000. 00 Sewer access charge 30, 300. 00 Architectural and engineering 120, 000. 00 Furniture and equipment 57 , 000. 00 3 , 918 , 300. 00 . + Interest and other carrying charges during construction: City of St. Paul Housing and Redevelopment Authority . fee $ 32, 000. 00 • Rent up marketing 10, 100. 00 Real estate taxes 5, 000. 00 - Interest 150, 000 . 00 Title insurance premiums 10, 000. 00 Liability insurance 1,000. 00 208 , 100. 00 TOTAL ACTUAL COST OF PROJECT $4 , 653 , 555 . 00 � _ � ' , , „ . — - __�_ . . . -�. • � __ _ bP= y/11/ i i ' • • � -..._ . . � _.. _ _:_ � ,. � �• , �� EXHIBIT B « . ASSIGNME:VT OF LOP,l�T AGREEt1ENT . ' The undersigned does hereby assign its rights � in the Loan Agreement to The First National Bank of Saint Paul the assignee below, subject to the provision= of Section 7.07 thereof. ' HOUSING AND REDEV£LOPyIENT '� ' AUTHORTTY OF SAI�1T PAUL ' � , 1977 By. (SEAL) _ . . . Attest: Tne assignee hereby agress and acc�pts this assig.�ent. i'Hr^, FIRS'_' NAT?'O:1r'� Ba:.tii� Or^ SAINT PAUL ' ' r 1977 By • �and By -25- . , ,' ' • ; DAr lU/L4/ / / _ _ __ � .__ .-- � . EXHIBIT A � Lots 4 to 32 inclusive, Block 4, `1ou:.g:�an & Lamm's Addition, Ra*nsey Co. , ?�;inn. . � ;�'`':,:`� � EXHIBIT B �g �_��'� GUARANTY OF SPECIFIC INDEBTEDNESS In order to induce the Housing and Redevelopment Authority of the City of Saint Paul, ?�Iinnesota (hereinait.er called "HRa") to make a loan to Shepard Park Plaza, a Minnesota limited partnership (hereinaiter called "Debtor") , pursuant to the terms of that Loan Agreement oi even date h�rewith bets�een the Debtor and zhe HR� (�the "Loan �greement") issued by Debtor to the order of HRA; each of th� undersigned unconditionally and jointly and severally guaranty payment of all suns (including any and all costs of coll.ecticn including attorneys ' fees) payable by Debtor in accordance with the terms of said Loan Agreement. ' No notic� of any rene:val, compromise, extension or modification in the terms of tne Loan Agreement need to be given to the undersigned or any of them, who hereby consent to each of such acts. • The HR� is eYpressly authorized to foreclose or ot�er�ise . collect upon t'�e security. for De:�tor' s obligations under the Loan Agreener.t in any other manner and to rene:�, eY�er.c, conpromise, excnange, rzlease, surrender, or nodify tn� t�r:�s of any or all of suc?� security for said obligations 4�ith o� without cons��?=ction and �,�ithout notice to any of the undey- signed a�d wi�hout in any manner affecting the absolut� liability of any oi the undersigned hereunder. The liabil�_y of each of the undersigr_ed hereunder shall not be affected or inpaired by as:y failur�, neglect or omission on the part of the H� to realize upon the collateral or. security f�r . said obligations, nor by the taking by the HRA of any other guaranty or guaran�ies to secure said obligations , nor by . the tak?ng bi� the uRa of collateral or security of any kind for said obligations, nor by any act or failure to act whatsoever (except payment) which but for ihis provision might or could in law or in equity act to release or reduce the undersigneds ' liabilities hereunder. Each of the undersigned acknowledges that this �uaranty is in efrect and bin3ing as to hi:n or her without rzference to whether it is signed by any other person or persor.s �:�d agrees that possession or this inst�ument oi guaranty by the HR� shall be conclusive evider,ce of due delivery hereo� by the unders�gned, and further agrees that as to tn�m it shall continue in full force a:�d effect until it sha11 expire in accordance with the te�-:ns hereof, not�.,�ithstandir.g the death or release of any of the other guaranto�s. - -. ' . . _ _ , i. . � � , :;;�. ,� • ti '�: . =i� � , Tnis guaranty shall expire and be returned to Debtor u�on the issuance by the City of Saint Paul of a certificate l of occupancy for the improver�ents to be constructed witn the proceeds of the loz�z made pursuant to the ter,ns of said Loan Agreement, so long as an Event of Default, as defined in said Loan Agreement, has not then occurred and does not then reMain uncured. This guaranty shall be binding upon and shall, inure to the benefit of successors ar.d assigns of the parties hereto. The undersigned acknowledce that HRA shall assign this instrument� of guarar_ty and its rights hereunder to The First i�Iational Bar�k of Saint Paul. . . This guaraZt� shall be cons;.rued accordir.g to thz la��s of the State o� r�iinnesota in ;ahich s�ate it shall be per=or�ed by the undersigned. - Dated this day of , 1977. Stuar:. H. Noian herbert R. Goldenberg Ronald L. Harris Sheldon Ste�vart . . y . . . , � � . � ��,�:::IH'.T . ' . . , ' v 41�,- ,��. STATE OF MINNESOTA ) . � , ) ss . . COUNTY OF ) The foregoing instrument was acknocvledged before me this day oi � � � , 1977 by Stuart H. Nolan. � • Notary Public � STATE Or^ P�tI�1NESOTA ) • ) ss COUNTY OF ) The foregoing instrurient was acknowledged before ne this day of �, 1977 by Herbert R. : Goldenberg. , Notarv P�lic STAT£ Or^ PdIVNr.SOT i ) ) SS COJ�ITY Or^ ) , The foregoing instrunznt was ac;�nowledged before me this day of , 1977 by Ronald L. Harris. Notary Public STATE OF L�:1NilLSO^?, ) ) ss ' COUNTY OF ) The £or2going ins�rt:.�er_t �vas ac?�ncv�Iedc�d before me this day of , 1977 by Shel�on St�wart. :Iotary Pu�lic � _""��..� � • � . ..._ ''.i_..__.__ .,..._.._.._."'_'.'�.� r �- . • .. �- .. . �• ' THE FIRST NATIQNAL BANK OF SAZ�TT PAUL S?. PAUL, MI�INESOT.� 55IOI ' ' IRRFVOCARLE I,ETTRR OF CRF.DIT *�p. � �� P.1�tOLT\T: $92, 600. 00 DATE: Octob2r , I977 � TO: :Iousing and Redevelop:�ent Authority . of the City of Saint Paul, Minne�ot3 � 601 �ortnwestern Natior.al Bank Buildir_g � 55 East Fifth S�re�t ' • . Saint Paul, �?innesota ("HRA"� � Gentlemen: � . � � «e hereby es�ablish this Irrevocable Letter of Crndit in your favor �or the account of Shepard Par'_�c Pla2a, a �iinnesota � . li*_lited partnership ("Shepard") , for the sun o� :Iinety-Two Tho�asand Six Hundred and no/100 Dollars (592 , 500.00) � available by draft on The First ?�atior.al Bank o_ Saint Paul, 3?2 Liinneso�a Street, Saint Paul, 2•2inr_esbta 55101, at sight. - � Each draft drac� un�er this Let_er of Credit srall bear or� � its face the clause: "Drawn under �,etter of Credit ':o. , � �ated October , 1977, of The _irst�dat ona� Bank of Saint Paul" . an3 such drafz shall b� accor�;anied by: � � (a) The origina2 of this Letter o` Cxe�'iL; and (b) A certificate, dated the da�e o� such draft, sigr_e� by an authorize3 o�`ficer o� t:�e E�:, to the ef�ect � that an E�en� of Defauli EYlS�S unr'�er Section b.01 (I) o� �hat Loan Agreenznt between the HRA and Shepard, dated October , ?977 ar.d an ar;ount not � less than �he aMOUnt of suc� dra=fi �s due an� o:•�i�g ' under the ter.;�s of said �oan �greer.i�nt. � Drafts dra�•m hereunder mus� be �resented to the ColZect�on Departnent oy the Ban�; a� the address indicated abovz not later than 2 :00 �.r,,. Sa?nt Paul t?r,� on or be�ore Octo��r , lggp, �iter whicn tir,:e tnis Let�er of Credi� shall be nu?I and voi3. This Letter o� Credit r�ay not be assicned or trans�erred_ lhis credi� ?s subject to the Uniforr C�sto^s ar_d ?ractic� for � Docunentary CreGits (I°74 Revision) , 3n�ernatior.al Chamber o� Co.-;�-�erce Brochure No. 290. . e-= �?.tiGENO. � � nC rIK.7 { IVAIIV(VAL OAf`i11CJ� JAI{VI F'AUL DATE ' TO OCtQjJGr �I.� Eousing and Redevelopnent Authority Letter of Credit :Io. — Amount: $92, 600. 00 � � � We hereby agree with you that a �raft drawn t�nder and in . conpliance with this Letter of Cred=� shall b� duly �onored upon presentation and delivery of the decs.-�ents s��cifie� above and ' k�e hereby waive any rights to defer 'r.onor of s,z�� draf�. THIS LETTER OF CRLDI'i' IS IRtLVOC?�T_,E. � o � . . � THE FIRST 2��Ti0?�.�T., BP`K �� SAI�IT PAUL . . By . . Robert E. 3a1_anz . � • • Vice Pres��enL � � . , . i. . , � , t ' � EXF:I:BIT C . NOTE RESOLUTION $3,200,000 � FiOUSIi3G REVE:JUE NOTE OF 1977 . (SHEPnRD PARK PLAZA, PROJECT) - HOUSING AND REDEVr.LOP:�tEVT AUTHORITY � OF TH� CIT`� O�' SAIi�T PAUL, ��IIV�TESOTa � ADOPTED: October 25, 1977 , • � , � , _ _.___ .__..---._..��. , _ __ _ , _ , -�.___ ..�. ._ ... . o • �' • • '� � . �: �T��'�' '_ TABLE OF CONTENTS � . . �. � � • � (This table of contents is not a part of this �� Resolution, but is included for convenience onTy) � � � � � � � � ��:�� Page `; ARTICLE ONE - DEFINZTIONS, LEGAL AUTHORIZATION AND FINDINGS 1 Section 1-1. . Definitions 1 . Section 1-2. Legal Authorization 3 Section 1-3. Findings 3 � Section 1-4. Authorization and Ratification � of Project q . t�RTICLE TWO - NOTE Section 2-l. Authorized Amount and Form of Note 5 � Section 2-2. The Inztial Note - 11 Section 2-3 . Execution 11 Section 2-4 . Delivery of Initial Note 11 Section 2-5 . Issuance of New Notes 12 Section 2-6. Registration of Transfer 12 Section 2-7. Mutilated, Lost or Destroyed Note 12 - Section 2-8. Owners ip of Note 13 Section 2-9. Limitation on Note Transfers 13 ARTICLE TNREE - REDENLpTION OF NOTE BEFORE MATURITY 14 Section 3-l. Redemption 14 Section 3-2. Terminatian of Interest 14 ARTICLE FOUR - GENERAL COVENANTS 15 ' ' Section 4-l. Payment of Principal and � Interest 15 Section 4-2. Performance of and Authority for Covenants 15 Section 4-3. Enforcement and Performance of Covenants 15 Section 4-4. Nature of Security 16 ARTICLE FIVE - MISCELLANEOUS 17 Section 5-1. Severability 17 Section 5-2. Authentication of Transcript 17 � Section 5-3. Registration of Resolution 17 Section 5-4. Authorization to Execute Agreements 17 SIGNATURES ],8 ' o � ; NOTE RESOLUTION � BE IT RESOLVED by Board of Commissioners of the Housing and Redevelopment Authority of the City of Saint Paul, Minnesota, as follows: . ARTICLE ONE DEFINITIONS, LEGAL AUTFiORTZATION AND FINDINGS 1-1. Definitions. The terms used herein, unless the contex.t hereof shall require otherwise sha11. have the following meanings, and any other terms defined in the Loan Agreement, the Mortgage. and Security Aqreement and the Disbursinq Aqree ment shall have the same meanings when used herein as assigned to them in such instruments unless the context or use thereof indicates another 'or different meaning or intent. (1) Act: the Minnesota Municipal Industrial Develop- ment Act, M ni nesota Statutes, Chapter 474, as amended; (2) Assigntrent af Lcian Agreement: the agreement to be executec� by `.e �?,A and th� Mortgaqor assigning the Loan Agreement to the �ivrtgagee; � (.3) Bond Counsel: the firm of Briggs and Morgan, Professional Association, of St. Paul, Minnesota, or any other firm whose opinions in municipal bond matters is recognized nationall.y, and any opinion of Bond Counsel shall be a wrzti:en opinion signed by such Counsel; ' . (4) HP,A: the Housi.ng and Redevel.opment Authority of the City o� Saint Paul, Minnesota, its successors and assigns; (5) Company: Shepard Park Plaza, a limited partner- ship organized under the P�linnesota Limited Partnership Act, • Sections 322..01 and 322.31 Minnesota Statutes and a redevelop- . ment company within the meaning of Section 462. 415 to 462, 711 Minnesota Statutes consisting of Stuart H. Nolan, Herbert R. Goldenberg, Ronald L. Harris and Sheldon Stewart a].1 of whom are both general and limited partners , its successors and assigns, and any surviving, resulting or transferee person or entity which may assume its obligations in accordance with the provisions of this Agreement; � � 6 . . � • ' . . � t (6) Disbursinq A�reement: the agreement to be �; :��r �' �xecuted by the HRA,. Company and Mortgagee, relating to � acquisition of the Project and the construction and installation of the Improvements; ` (7) Im�rovements: the structures and equipment (inc}.uding personal property) and other improvements to be �constructed or installed by the Company in accordance with the Plans and Specifications; . (S) Loan Agreement: the agreement to be executsd by - �he HRA an e Company, providing for the loan of con- � struction funds to the Company, including any amendments or supplements thereto made in accordance with its pro- visions; � (9) Mortgage: the agreement to be executed between the Company as mortgagor, and the Mortgagee, providing for the mortgaging of the Project to secure payment of the Note and i.nterest thereon; (10) Mortgaqee: The First National Bank of Saint Paul, in Saint Paul, Minnesota, its successors and assigns; (11) Note: the Housing Revenue Note of 197? (The Shepard Par�Plaza Project) , to be issued by the HRA pursuant to the Rzsolution, to evidence the loan of $3,200,000 made by the Lender to the HR.A; . (12) Note Register:� the record kept by the o the HR.A to provide for the registration of transfer of ownership of the Note; (13) Plans and Specifications: the plans and speci- fications for tne construction and installation of � Improvemenzs on the Project Premises , which are approved by the Mortgage�, together with such modifications thereof and additions thereto which are reaso.nably determined by the Company to be necessary or desirable for the completion of the Imprvvements and are approved by the Mortgagee; (14) Principal Balance: so much of the principal sum on the Note as from time to time may have been advanced to or For the benefit of the HRA and remains � unpaid; (15) Project: the Land and the Improvements thereon consisting of 101 apartment units suitable for use as complete permanent living fac�lities for a single person or family and functionally related and subordinate facilities as they may from time to time exist; • -2- . . , . _ �._. __ , _ �. . . . - • -, , - • , ' : �, k (16) Project Premises: the land and any other ease- � ` ments and rights described in Exhibit A attached to the -'� Loan Agreement; (17) Resolution: this Resolution of the Board of Commissioners o the HRA adopted , 1977 . � pursuant to which the Note is aut orized to be issued, . together with any supplement or amendment thereto; and all references in this instrtunent to designated "Articles," "Sections" and other subdivisions are to the designated Articles, Sections and subdivisions of this instrument as originally executed. The words "herein, " "hereQf" and "hereunder" and other words of similar import refer to this Resolution as a whole not to any particular Article, Section or subdivision. 1-2. Legal Authorization. Tfie HRA is a body corporate and politic of the State of Minnesota and is a redevelopment agency under the Act and is authorized under the Act to initiate the . revenue producing project herein referred to, and to issue and sell bonds in the �orm of the Note ior this purpose, in the manner and upon the terms and conditions �et �orth i.n the Act and in this Resolution. 1-3. Findirigs. � The Boar3 of Commissioners of the HRA has here- . totore determined, and does. hereby determine, as follows: (1) The Hx� is authorized by the Act to enter into a Loan Agreement for the public purposes expressed in the Act; (2) The HRA has made the necessa�-y arrar_gements with the Company for the establishment within the HRA of a Project consisting of certain property all as more fu11y described in the Loan Agreement with the Co*�pany and which �vill bQ Qf tn.e character and accomplish the purposes provided by the Act, and the HRA has by this Resolution ' , authorized tre Project and execution of the Loan Agreement, Assignment of Loan Agreement, Note and Disbursing Agree- ment, specifying the terms and conditions of the acqui- si.tion, installation, construction and financing of the � Improvements ta be included in the Project; • (3) in authorizi.ng the Project the HRA' s purpose is, and in its judgment the effect thereof will be, to _3_ � • � � � � � promote the public welfare by: 'the attraction, encourag�- �� tt�ent and promotion of economically saund development; the utilization of availa.ble resources of the community in Order to retain the benefit of the community� s existing . _ investment in educational and public service facilities , . and to halt the movement of talented, educated personnel of all ages to other areas, thus preserving the economic and human resources needed as a base for providing govern- mental services and facilities; the provision of acces- sibl.e employment opportunities for residents in the area; and the provision of necessary housing facilities to serve the welfare needs of the City of Saint Paul and surrounding area; (4) the amount estimated to be necessary to finance the Project Costs, including the costs and estimated costs permitted by Section 474.05 of the Act, will require the issuance of the Note in the aggregate principal amount of $3,2Q0,000 as hereinafter provided; (5) it is desirable, feasible and consistent with the objects and purposes of the Act to issue the Housing Revenue Notz of 1977 for the purpose of financing certain Project Costs; and - (6) the Note and the interest accruing therzon do . not constitute �-! indebtedness of the HRA within the meaning of any cor.stitutional or statutory limitation and do no� constitute or give rise to a pecuniary 7.iability or a charge against the general credit or taxing powers of t,�e HRA and neither the full. faith and credit nor the ta:�ing powers of tne HRA is pledged for the payment of the Note o?- interest thereon. 1-4. Authorization and Ratification of Project. The HRA has heretofore and does hereby authorize the Company, in accordance with the provisions of Section 474.03 (6) of the Act and subject to the te ,�s and conditions set forth ia the Disbursing Agreement, to provide for the construction and installation of the Improvements included • in the Project under the Plans and Specifications by such means as shall be available to the Company and in the manner deternined by the Company, and without advert�se- ment for bids as may be required for the construction and acquisition of any other municipal facilities; and . the HRA hereby ratifies, affirms, and approves all actions heretofore taken by the Company cons3.stent with and in anticipation of such authority and in compliance with the Plans and Specifications. �4_ • _ _ _ _. � _ _ .... . __ �.T.._..._.�___..___..�._.... _._.. __,,.. ARTICLE TWO ,,� NQTE ' . . � 2--1. Authorized Amount and Form of Note. The Note i,ssued pursuant to this Resolution ' shall be in substant�.ally the form set forth herein, with such appropriate variations, omissions and insertions as are permitted or required by this Resolution, and in accordance with the further provisions ;of this Article; and the total principal amount of the Note that may be outstanding hereunder is expressly limited to $3,200,000. unless a duplicate Note is issued pursuant to Section 2-7. Said Note shall be in substantially the following form: �5- . _ _ _ __�.___ ___-�., . . _ �, UNITED STATES OF AMERICA STATE OF MINNESOTA - COUNTY OF RAMSEY � 80USING AND REDEVELOPME�IT AUTHORITY OF , , THE CITY OF SAINT PAUL, MINNESOTA Housing Revenue Note of 1977 (Shepard Park Plaza, Project) . ' FOR VALUE RECEIVED the Housing and Redevelopment� Authority of the •City of Saint Paul (the "HRA") , Ramsey County, Minnesota, hereby promises to pay to the order of The First National Bank of Saint Paul (the "Bank") , Saint Paul, Minnesota, or registered assign, from the source and in the manner hereinafter provided, the principal sum of THREE MILLION ri'WO HUNDRED THOUSADID DOLLARS ($3, 200 , 000) , or so much thereof as may have been advanced to or for the benefit of the HRA and remains ur_paid from time to time (the "Principal Ba].ance") , with interest thereon at the rate of seven and one-quarter percent (7.250) per annum, in any coin or cur- rency which at the time or times of payment �is legal tender for the payment of public or private debts in the United States of America, and in accordance with the terms here- inafter set forth. 1. From and after the date hereof and until a.n3 includina the �ifteenth dav of the fiftv month following t'�e "Corapleticn �ate" , but in no event later tnan Dece er , 15, i979 , the H�,A �hall pay interest only upon the Principal Balance at the rate of seven and one-quarter percent (7 . 25g) pe� annum. Said interest shall accrue from and after the d�te of each and every advancP so made ur.d�r this Note and shall be payable on the fi�teenth day of each calendar month � next succeeding the date upon which the first adv nce is ' made, and on the fifteenth day of each and everyf�alendar month thereafter until the date aforesaid. 2. Com?^encinq on the fifteenth day of the siYth m,onth aext f�llowing the Completion Date but in no event a er t an Janua�y , t t is Note s a e amortize and � , paid in 300 �equa� r.ton�-...hly installments payable on the fifteenth day of each month until the Principa.I Balance and accrued interest thereon shall have been paid, in full, (the "Final Maturity Date") . Payments shall be applied first to interest due on the Principal Balance and thereafter to reduction of the Principal Balance. � 3. Interest shall be computed on the basis of a 30 day month and a 360 day year, but charged for the actual number of days principal is unpaid. -6- • . 4. . If the holder should not receive on the . , fifteenth day of any month all of the principal and interest ' . then due on the Note, and if the HRA should continue to be in arrears through the fourteenth day of the next month, . then, in addition to all other sums due hereunder, the holder shall be entitled to receive on the fifteenth day of the next succ.eeding month a service charge equal to four percent � i4.00$) of the delinquent principal and interest. . 5. Frincipal and interest and any penalty or premium due hereunder shall be payable at the principal office of the holder hereof, or at such other place as the holder may designate in writing. 6, This Nvte is issued by the HRA to provide funds for a Project, as defined in Section 474 .02 (la) , . Minnesota Statutes, consisting of the construction and installation of a 101 unit apartment facility all of which units shall contain comglete living facilities Eor use in other than a transient basis by one or more persons and facilities functionally related and sub- ordinate thereto, under a Loan Agreem�nt, of even date herewith, between the Bank, the HRA and Shepard Park Plaza, a limited partnership (the "Company") , and this Note is further issued pursuant to and in fu11 compliance with the Constitution and laws of the State of Minnesota, particularly Chapter 474 , Minnesota Statutes , and pursuant to a resolution of the Board of Commissioners og the HRA .duly adopted on � • , 1977. J� 7. This Note is secured by an assignment of thz Loan Agreerent by the H?tA to the Ban:� and by a Mortgage of eve� date herewith between the Campany, as � � 1KOrtgagor, ar.d the Bank as Mortgagee. 8. The holder may extend the times of payments of interest and/or principal of or any penalty or premium due on this Iv'ote, wi�hout notice to or. consent of any party liable nereon and without releasing any such party. '• 9. -This Note may be prepaid at any ti.me, either i.n whole or in part, without penalty exce t as provided in - �Sectio� 4 . 09 of tne Loan Agreement. ' 10. This Note is fsubject to prepayment, without a premium, in whole or in parf, upon the occurrence of certain events of da:*r.age, destruction or condemnation to the Project, as specified in the Loan Agreement and 14lortgage and in the � event the interest should become taxable under federal la�a as provided in Section 4.09 of the Loan Agreement. -?_ . . _ . ..._. . . . . . . . . .�..... .. .. ,._ ,-_.. _.....� . _.. , ... .__.�. _ � • . � �-�• � ..... . . .� �. 4 ><�: ; �: � . � . v�"s . . 11. No prepayment which does not result in the �� . entire Principal Balance and interest thereon and any � applicable prepayment premium being paid in full shall . reduce the amount of the monthly payments due hereunder pursuant to paragraph 2 hereof, which payments shall - continue until the entire Principal Balance has been paid. Noti.ce of prepayment of this Note in whole or part shall . be given in accordance with the terms of the Resolution. 12. As provided in the Resolution and subject to certain limitations set �orth therein, this Note is transferable upon� the books of the :iRA at the office of the HRA, by the Holder hereof in person or by his attorney duly authorized in writing, at the holder' s expense, upon surrender hereof together with a written instrument of transfer satisfactory to the HRA, duly . executed by the holder or his duly authorized attorney, Upon such transfer the HRA will note the date of regis- � tration and the name and address of the new registered holder in the re�istration blank appearing below in the alternative. The HRA will at the request of the holder and at the holder' s expense issue new notes in the aggregate principal amount equal to the unpaid Principal Balance of this Note, and o� like tenor except as to nunber, prir_cipal amount, and the amount of the monthly installments payab?e thereunder, and registered in the name of the hold�� or such transferee as may be designated � by the holder. T�±e HRA nay deern and treat the person in . whose nare the Note is last registered upon the books of , the H�, with such registration noted on the Note, as the absolute owner herev�, whether or not overdue, for the � purpose of receiving payrient of or on account of the -Principal Balance, redemption price or interest and for all ��Y�er pu�poses, and all such payments so made to the � holder or upon h?s order shall be valid and effectual to ' .satisfy and discharg� tY�.e liability upon the Note to the extent of the sum or sw-ns so paid, and the HRA shall not be affected by any notice to the contrary. 13. AII of the agreements , conditions, covenants , � provisions and stipulations contained in the Resolution, - . Mortgage, Loan Agree:�tent and Disbursing Agreement are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein. • . -8- � ' J � 14. This Note and interest thereon and any . penalty or premium due hereunder do not constitute a debt o� the HRA within the meaning of any constitutional or statutory limitation, are not payable frvm or a charge upon any funds other than the revenue pledged to the payment thereof, and do not give rise to a pecuniary liability of the HRA nor, to the extent permitted by l.aw, of any of its officers, agents or employees , ar�d no holder of this Note shall ever have the right to compel any exercise of the taxing power of the HRA or the City to pay � this Note or the, interest thereon, or to enforce payment , thereon, nor to enforce payment thereof against any property of the City or the HRA and the agreement of the HRA to perform or cause the performance of the covenants and other provisions herein referred to shall be subject � at alI times to the availability of revenues or other tunds furnished for such purpose in accordance with the Loan Agreement, sufficient to pay all costs of such performance or the enforcement thereof. 15. It is agreed that time is of the essence of this Note. In the event of failu�e by the HRA to oay any monthly installment of principal or interest within ten days after the due date, or any premium or penalty due hereunder, or if an Event of Default shall occur, as defined in the �.crtgage or in the Loan Agreement, all of even date herewit.h, then the holder of this Note sha?1 have the righz ard option to declare, without further notice, all the remaining indebtedness of unpaid principal and accrued interest, evidenced by this Note, immediately due and paya.ble. Failure to exercise such option at any time shall not constitute a waiver vf the right to exercise the same at any subsequent time. • 16. The remedies of the holder, as provided herein and in the Mortgage, Loan Agreement and Disbursing// Agreement, shall be cumulative and concurrent and may be pursued singly, successively or together, at the sole -discretion of tne holder, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event ' . be construed as a waiver or release therevf. 17. The holder shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in -9- � ,' • ' . - �, writing and signed by the holder and, then only to the � k extent specifically set forth in the writing. A waiver �� , ;�. with reference to one event shall not be construed as � continuing or as a bar to or waiver of any right or � � �emedy as to a subsequent event. � IT IS HEREBY CERTIFIED AND RECITED that all �' conditions, acts and things required to exist, happen and be performed precedent to or in the issuance of this Note do exist, have happened and have been perfor.ned in regular and due form as required by law. IN WITNESS WEiEREOF, the HRA has caused this Note to be duly executed in its name by the manual . signatures of the Chairman and Secretary and the seal of the HRA to be affixed thereto, and has caused this Note : to be dated � , 1977. HOUSING AND REDEVELOPMENT � AUTHORITY OF THE CITY OF SAINT PAUL _ By Chairman Countersigned - Secretary (�Er�L) . , PROVISIONS AS TO REGISTRATTON The ownzrship �£ the unpaid Principal Balance of � this Note and- tne ?nterest accruing thereon is registered � on_ the books of the Housing a..r±d Redevelopment Authority of the City of Saint Paul in the name of the holder last noted below. - -Date of Name of Signature of _ Registration Registered Owner Secretary • . The First National Bank of Saint Paul . -1Q- ``, 2-2. The Initial Note. The Note shall be payable at the times and in the manner, shall bear interest at the rate, and shall be subject to such other terms and conditions as are set � forth therein. . . . 2-3. Execution.� The Note shall be executed on behalf of the HRA by the signatures of its Chairman and Secretary and shall #�e sealed with ttie seal o� the HRA. In case any officer ' whose signature shall appear on the Note shall cease to be such officer before the delivery of the Note, such signature shall nevertheless be valid and sufficient for all purposes, the same as if he had remained in office until delivery. 2-4. Delivery of Initial Note. Before delivery of the Note there sha],1 be filed � with the HRA Secretary the following items : (�1) {A) an original o� the Loan Agreement and Assign- ment of the same; (B) an original of the Mortgage with evidence to estalilis� th?-� t'�e sa.*ne has been recorded in the office of the County Recorder of Ramsey County, Minnesota; (.C) an original of the Disbursing Agreement; (D) co�ies of finar_cing statements to ev�denc� the security i.nterest of the Lender in personal property . �overed by the Mortgage; . (2) an opinion of Counsel that the Company has good and marketable title to the premises described in Exhibit A, rree and cl�ar. of. all liens and encum.brances exc�pt encumbrances approved by ti,.e Mortgagee or a policy of title insurance insurinq good and marketable title in Company and . the first lien of the Mortgage on the Land subject only to encumbrances approved by the Mortgagee; (3) an opinion of Counsel for the Company in scope and substance satisfactory to Bond Counsel as to the authority of the Compa�iy to enter into the Loan Agre�ment, Mortgage and Disbursing Agreement and other related matters; -ll- � � (4) the manually signed opinion of Bond Counsel • � approving the legality of the Note issued pursuant to � � this Resolutian and the exemption from Federal Income Tax o� the interest to be paid thereon; � (5) such other documents and apinions as Bond Counsel may reasonably require for purposes of rendering its opinion requi.red in suhsection (4) above. Upon delivery o� the Note, the Mortgagee shall, . on behalf of the HRA, advance funds for payment of Project Costs upon receipt vf such supporting documentation as the Mortgagee may deem reasona.bly necessary, including com- pliance with the provisions of the Disbursing Agreement. The Mortgagee or Company shall provide the HRA with a full accounting of all funds disbursed for Project Costs. 2-5. I�ssuance of Ne�t Notes . Subject to the provisions o� Section 2-9, the HRA shall, at the request and 'expense of the holder issue new notes, in ag�regate outstanding principal amount equal to that of the Note surrendered, and of Zike tenor except as to number, principal amount, and the anlount of the monthlv installments pa�table thereunder, and registered in the name of the holder or such transferee as may be designated by the holder. 2-6. Reg'istratiori of Transfer. � ' The H� will cause to be kept at the office of the HRA Secretary a Note Register in which, subject to such reasonable regulations as it may prescribe, the HRA shall provic,� for the recistration nf transrers of ownership of the Note. Said Note shall be transferable upon the Not� • _Register by the haider thereo� in person or by its attorney duly authorized in writing, upon surrender of the Note together with a wri.tten instrument of transfer ' satisfactory to the HR.�, Secretary, duly executed by the _ hoTder or its duly authvrized attorney. Upon such transfer the HRA Secretary shall note the date of registration and �, the name and. address of the new holder in the Note Register and in the registration blank appearing on the Note. 2-7. Mutilated, Lost or Destroyed Note. In case any Note issued hereunder shall become _ mutilated or be destroyed or lost, the HRA shal'l, if not then prohibited by law, cause to be executed and _ delivered, a new Note of like outstanding principal amount, . � -12- nutnber and tenor in exchange and substitution for and upon '�,�� cancellation of such mutilated Note, or in lieu of and in � substitution for such Note destroyed or lost, upon the � halder' s paying the reasonable expenses and charges of the HRA in connection therewith, and in the case of a Note . destroyed or lost, the filing with the HRA of evidence satis�'actory to the HRA that such Note was destroyed or lost, and furnishing the HRA with indemnity satisfactory to it. If the mutilated, destroyed or lost Note has already matured or been called for redemption in accor- dance with its terms it shall not be necessary to issue a new Note prior .to payment. 2-8. Owne�rship of Note. . . The HRA may deem and treat the person in whose • name each Note is last registered in the Note Register and by notation on the Note whether or not such Note shall be overdue, as the absolute owner of such Note for the purpose � of receiving payment of or on account of the Principal Balance, redemption price or interest and for all other purposes whatsoever, and the HRA sha1.1 not be affect�d by any notice to the contrary. 2-9. Limitation ori 1�ote Transfers . The Note has been issued withvut registration under state or ozh�r securities laws , pursuant to an exe*apticn for such �ssuance; and accordingly the ilote may not be assigned or transferrzd in whole or part, nor may a participation interest in the Note be given pursuant to any participaticn agreement, e:�cept in accordance with appl�.cable registration requixements or unon receipt of. a written opinion of Bond Counsel that an exemption exists �or such transfer. -13- . , , , __ __ _ ._.____._..v..�, � ARTzCLE THREE REDEMPTION OF NOTE BEFORE MATURTTY 3-1. Redentption. (1) In the event of (a) damage to or destruction of the Project or Condemnation of the Project or any part thereof and (b) if restoration is not required or the Company does not elect to restore the Project pursuant to Section 2.04 of the Mortgage, the Note shall be subject to prepayntent by •the HRA from funds furnished by the - Company at the time, to the extent and in the manner set �orth in Section 5.02 of the Loan Agreer�ent. (2) The Note may be prepaid at any time in accordance with the provisions of the Nate. (3) The Note shall be prepaid in accordance with and upon the conditions set forth in Section 4.09 of the Loan .Agreement. 3-2. Terntinatian of Interest. Except as may be otherwise provided in Section 4.09 of the Loan Agreement, upon deposit of the redemption price with the uortgagee and t�'�e giving of any notice r�quired by la�a, t�e principal amounts prepaid shall, af ter � such date, cease to bear interest, and in such event all , � obligations of t.he HRP, hereunder and under the Loan greement sna e aeeme aiscnarge . i -14- � � i. . . .� . . _ ....._ _ . . . ._ . ._._.w,.:. • . bpf 9/11/77: 10/7/7? � . ,. . 's,n'"+r . _"`�� ARTICLE FOUR � GENERAL COVENANTS � � 4-1. Fayment of Principal and Interest. , The HRA covenants that it will promptly pay or cause to be paid the principal of and interest on the Note at the place, on the dates and in the manner provided herein and in said Note. The principal and intP?-eGt a.r„� payable soJ.ely from rev�enues and �roceeds derived from the Zoa.*� A�reemer_t (and in certain events ursuant to a letter of credit attached as EYhibit C to the Loan Agreement covering e Pro�ect an tne Company s mortgage thereof, which revenues and proceeds are hereby speci�ically pledged to the payment thereof in the manner and to the extent specified in the Note and Mortgage, and nothing in the Note or in this� Resolution shall be considered as assigninq, pledqing__or otherwise encumbering any other funds or assets �of the HRA or the City o� Saint Paul. 4-2. Performance of and Authoritv for Covenants . The HR� covenants that it will faithfully perform at all times any and all covenants , undertakings, stipula- tions and provisions contained in this Resolution, in the I3ct4 execute3, Gu u��nticated ar.d delivered hereunder and in all proceedings of the Board of Commissioners pertaining the�eto; that it is duly autYiorized under the Constitution and laws of the State of Minnesota including particularly and wizhout limitation the Act, to issue the Note authorized h�re�ay, pledge the �evenaES ar.d assign 'the Loan Agreemen-c in the manner and to the extent set fortn in this Resolution, • the Note, the Mortgage and the Assignment of Loan Agreement; that all action on its Fart for the issuance of the Note and for the ex�cution and delivery thereof has been duly and effectively taken; and that the Note in the hands of . the halder thereo� is and will be a valid and enforceable obligation of the HRA according to the ter.ns thereof. 4-3. Enforcement and Performance of Covenants . � The HRA agrees to enforce all covenants and obligations of the Company under .the Loan Agreement and exhibits thereto and Disbursing Agreement, and to per orm all covenants and other provisions contained in the Note, the Loan Agreement and the Disbursing Agreement and any exhibits thereto. -15- .. _ _____ _ bpf 9/11/77 Y 4-4. Nature of Security, • � � Notwithstanding anything contained in the Note, Mortgage, Loan Agreement or any other document referred to in Section 2-4 to the contrary, under the pro�isions of the Act the Note may not be payable from or be a charge upon any funds of the HRA other than the revenues pledged to the payment thereof, nor shall the HR.A be sub�ect to any Iiability thereon, nor snall the Note otherwise contribute or give rise to a pecuniary liability of the HRA or, to the extent permitted by law, any of the HRA' s officers, employees and agents. No holder of the Note shall ever have the right to compel any exercise of taxing power of the HRA or the City to pay the Note or the interest thereon, or to enforce payment thereof against any property o£ the HRA or the City; and the Nate shall not constitute a debt of the HRA or the City within the meaning of any constitutional or statutory limitation; but nothing in the Act impairs the rights of the holder of the Note to enforce the covenants made for the security thereof as provided in this Resolution, the �Iortgage and in the Act, and by authority of the Act the HRA has made the covenants �^.d agreements herein tor the benefit of the holder of the Note; provided that in any event, the agreement of the HR� to perform the covenants and other provisions contained in the Note, t�e Loan Agreement and the Disbursing Agreement � � �hall be subject at all times to thz availability of � revenues unde; the Loan Agreement sufficient to pay al1 ' costs of such perfor.nance or the enforcement thereof, and the HRA shall not be subject to any personal or pecuniary lia.bility thereon. -+16- � ` bpf 9/11/77; 10/7/77 . , . ' � . ��±* . ARTZCLE FTVE ' M2SCELLANEOUS , ` 5-1. Se�verabilitv. . If any provision of this Resolution shall be heI.d or deemed to be or shall, in fact, be inoperative or unen- forceable as applied in any particular case in any juris- diction or jurisdictions or in all jurisdictions or in all. cases because it �con�licts with any provisions or any constitution or statute or rule or public policy, or for any other reason, sucn circumstances shall not have the effect of rendering the provision in question inoperative or unenforce�le in any other case or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative, or unenforceable to any extent what- ever. The inval.idity of any one or more phrases, sentences, clauses or paragraphs in this Resolution contained shall not affect the remaining portions of this Resolution or any part thereof. 5-2. Authentication of Transcript. The officers of the HR.A are directed to furnish to Bond Counsel certified copies of this Resolution and all doci:ments refe=�e3 to herein, a.nd affidavits or certi- ficates as to all other matters which are reasona.bly r.ecessary to evi�ence the validity of the Note. Al1 such certified copies, certificates and affidavits , including any heretofore fur�ished, shall constitute recitals of the HRP, �s to the correctness of all statr.-nents contained therein. � 5-3. Registration of Resolution. The HRA Secretary is authorized and directed to cause a copy of th?s Resolution to be file3 with the County Auditor of Ramsey County, and to ob ain from said County Auditor a certificate that the Note�has been duly entered upon his bond register. t 5-4. Authori2ation to Execute Agreements�. The forms of the proposed Loan Agreement, Note,_ . Disbursing Agreement and Assignment of Loan Agreement are hereby approved and the Chairman and Secretary of the HR.A are authorized to execute the same in the name of and on -�Y7- . •- . bp£ 9/11/77; 10/7/77 . behalf of the HRA and to execute such other documents as � Bond Counsel consider appropriate in connection with the issuance of the Note. Tn the event of the absence or . disability of the Chairman or Secretary such officers of the HRA as, in the opinion of the HRA Attorney, may act in their behalf, shall without further act or authorization of the Board of Commissivners do all things and execute all in- struments and documents required to be done or executed by such absent or disabled officers. Adopted: . . � . � , 1977 . C airman Attest: � Secretary , , - i � .. . ' I _1g„ . , . _ .._ . r._� ,, __.�� e. . � ' � SHEPARD PARIC PLAZA OPERATING PRO FORMA '�k';r;� � •' 2 . �1Q� TOTAL ACTUAL FINAL PROJECT COSTS (EST) $4,886 ,233 BOIQD PROCEEDS $3,200 ,000 EQUITY ' $1,686,233 Average Income Monthly Rent � 45 - 1 BR at $355 � $ 15,975 26 - 2 BR at 500 = 13,000 30 - 3 BR • 625 = 18,750 120 - Garages at 35 = 4 ,200 � Laundry 500 Total Potential Monthly Incotne 52,425 � x 12 Total Potential Annual Income 29,100 Less Vacancy Factor (5�) -31,455 Projected Annual Income 597,645 Operating Expenses : Advertising $ 8,000 Salaries and Payroll Taxes � 18,000 Management Fee 23,900 Heat 14 ,000 Electricity 18,000 Water � 8 ,000 • Telephone 500 Painting and Carpet Shampoo 4 ,000 � Repairs and Maintenance 12,000 Elevator . , 2,500 Rubbish Removal � 1,800 . Snow Removal 1,500 Insurance 6,500 � Rea1 Estate Taxes* 95,765 - � Total Projected Operating Expenses $164 ,465 Net Projected Income Before Debt Service $433,180 Annual Debt Service $277 ,760 Net Proaected Income $155,420 8$ Return on Equi.ty $134 ,898 Payments to Excess Cash Fund . $ 20,522 *Reduced to conform with City of St. Paul Resolution No. 268597 passed on February 22, 1977. . , , ., _ .. , _ . .. . __._.... _... .. , . . , , . : ._ _ . _- . , " - o EXHIBIT D . i i 1 � � CERTIFICATE OF CONSENT AND APPROVAL '! Pursuant to Minn. Stats. §462.591 to §462.71 ("Redevelopment � Company Act") , the State Housing Commission ("Commission") has con- , sented to the filing of the Certificate of Limited Partnership of � , Shepard Park Plaza ("Shepard Park Plaza") and stated that the Cer- � _ . tificate of Limited Partnership of Shepard Park Plaza is consistent with the provisions of, and is in compliance with, the limitations \�_.. : . . �' and restrictions imposed on redevelopment companies by tne Redevel- . opment Company Act. A copy oP such Certificate of Consent is � + attached hereto as EXHIBIT A and hereby made a part hereof. Minn. Stat. §462. 645 authorizes the Saint Paul Housing and Redevelopment Authority of the City of Saint Paul ("Agency") and " . . Shepard Park Plaza, as a redevelopment company, to enter into a contract to regulate rents to be charged for any property in a • . . Project as defined in the Redevelopment Company Act during the � period of partial tax exemption granted by the City of Saint Paul � ("City") under the Redevelopment Company Act and to contain suc;h other provisions deemed necessary or desirable for the financing, - , construction, operation and supervision of such Project, so as ' to implement the purposes and objectives of the Redevelopment • Company Act. The Agency and Shepard Park Plaza have entered into : such a development contract, a copy of which is attached hereto as EXHIBIT B and hereby made a part hereof ("Redevelopment Contract") . The definitions, terms and conditions of the Redevel- �� ti�; opment Contract are incorporated herein and hereby made a part i i hereof. The Commission is charged under the Redevelopment Company ' : Act wi.th certain duties in examining redevelopment companies and � keeping informed as to their general condition, their capitaliza- � i`, � �� tion, and the manner in which their property is constructed, • � I � • i �� ; � ,' i � � I ; ' � i � � . , .I , .,_.._.,,._,,.�...�--�.__.... ...___. . ._.. . . . .. �� . .. .. ._ . . . . . , financed, leased, and operated with respect to its compliance with <•;� the provisions of the Redevelopment Company Act. The purpose of - this Certificate of Consent and Approval is to comply with such . " statutory charges and duties. � NOW THEREFORE, pursuant to the terms and conditions of the 1 , • Redevelopment Company Act, the Commission hereby consents to and . approves the definitions, terms and conditions of the Redevelop- ��_ ; ment Contract as being consistent with the purposes of, and in com- � pliance with, the limitations and restrictions imposed on redevel- opment companies by the Redevelopment Company Act; consents and � approves the borrowing of funds and the securing of the repayment thereof by Shepard Park Plaza pursuant to the Loan Agreement with the Agency, Mortgage to The First National Bank of Saint Paul, and . Note Resolution, which are EXHIBITS G, I, and C, respectively, to r the Redevelopment Contract; approves all documents required to be � •� executed and delivered by Shepard Park Plaza pursuant to the financing of the Project; certifies and approves that the funds borrowed by Shepard Park Plaza pursuant to the Loan Agreement and secured by the Mortgage, do not exceed ninety percent (90�) of the • estimated cost of the Project (exclusive of any sponsors' or devel- opers' fees) prior to completion of the Project, subject to certi- fication by the Commission after completion of the Project; approves the valuation of $353,500.00 of the Land to be included in the � Project (Lots 4 through 32, inclusive, Block 4, Youngman & Lamm's � Addition, Ramsey County, Minnesota) and approves the issuance of � �s�< partnership interests in Shepard Park Plaza in the amount of I� ' $353,500.00 in return for the contribution of said Land to Shepard i � Park Plaza, and approves the valuation of $353,SOO.00 for said 1 �� I Land for use in computing the estimated cost, the Actual Cost and � , i the Total Actual Fina1 Cost of the Project; approves the charges j l , �'; , for financing and supervision which constitute a part of the i . �, i , +' 'a � , -2- ; I i � , i '----,--..._..___�.�....�---- _. _ __�_ �_, . . ____ _.. .. , _.—_��.-._.._. ...--_. . i � , `� � � Actuai Cost of the Project (EXHIBIT A to the Redevelopment Con- ..� ' tract) ; hereby certifies that the interest rate on the Loan Agree- , ment secured by the Mortgage is acceptable to the Commission; and , , • hereby approves the Construction Contract with Knutson Construction . Company, the Construction Contract with Hunt Electric Corporation, 1 � . the Construction Contract with Harris Mechanical Contracting Com- . pany (Hunt Electric Corporation and Harris Mechanical Contracting �! ; , Company are controlled by Ronald Harris and Sheldon Stewart, two , of the partners of Shepard Park Plaza) , the proposal by Nolan Design Studio for the furnishing of interior design services, � furniture, wall coverings, and related accessories (Nolan Desiun Studio is owned by Linda L. Nolan, the wife of Stuart H. Nolan, one of the partners of Shepard Park Plaza) , and the proposal for "_ . the management agreement with The Stuart Corporation (The Stuart � Corporation is controlled by Stuart H. Nolan, one of the partners • .� of Shepard Park Plaza) , copies of which contracts and proposals are attached to the Redevelopment Contract as EXHIBITS K, L-1, L-2, M and N. , respectively. - ' , Dated: By James J. Solem . Director of Office of Local and Urban Affairs � State Planning Agency For the State Housing Commission � i. � _ �t ,' I, i l � j , • ` I � �,� �� -3- . I � . �.� i � • + , , __ _._.._______.�_._._ _----.. EXHIBIT E `° �;;�','� CERTIFICATE OF CONSENT . '� Pursuant to Minn. Stat. § 462. 421, subd. 20, the State Housing Commission hereby consents to the filing of the Certificate of Limited Partnership of Shepard Park Plaza and states that it is consistent with the purposes of and is in compliance with the limitations and restrictions imposed on redevelopment companies by Minn. Stat. §§ 462 . 591 to 462. 711. � Dated. �� `� � � J mes S 1 Di ecto• o O ice of cal & ba Affairs State annin ency For the State Housing Commission . , - , _�_... � EXHIBIT F ." ��.r CERTIFICATE OF LIMITED PARTNERSHIP OF ' SHEPARD PARK PLAZA ' The undersigned, desiring to form a Limited Partnership, pursuant to the provisions of Minnesota Statutes Chapter 322 , � � hereby certify the following: I The name of the Partnership shall be Shepard Park Plaza. II . The purposes for which the Partnership is formed aze to acquire one or more areas under a plan or plans and to construct, own, maintain, operate , sell and convey projects , pursuant to the terms and provisions of :dinnesota Statutes , Sections 462 . 415 to 462. 711, as amended, which sections shall hereinafter be referred to as "the Act" , and to act as a "redevelopment company" as defined in Section 462 . 421, Subd. 20 of the Act. In particular, the character of the Partnership' s business is to acquire, construct, operate , lease, manage and own an apartment project to be located in St. Paul, Minnesota on real estate legally described as Lots Four (4) through Thirty Two (32) , inclusive , Block Four (4) , Youngman & Lamm' s Addition, Ramsey County, Minnesota, and to conduct all other business activities related, pertinent or incidental thereto. III The location of the principal place of business of the Partnership is the real estate legally described in Article II above. The location of the principal business office of the Partnership is 790 Cleveland 1lvenue South , Suite 217 , St. Paul , Minnesota, 55116 , or at such other place as determined by the General Partner or General Partners . IV The Partnership shall not have capital stock and the � Partnership' s capital shall not consist of shares . The capital of the Partnership shall consist of the contributions by the Partners as set forth in Article VIIIbelow. ,.._..... .,,t. _ � . . , ,,[�,`''f � � . �AR • The names and places of residence of the General and Limited Partners are as follows: . � GENERAL PARTNERS: Stuart H. Nolan 12 Timberglade Road Minneapolis, Minnesota 55437 Herbert R. Gol�lenberg 4925 Coventry West Minnetonka , riinnesota 55343 Ronald L. Harris 1885 Highland Parkway , •' St. Paul , Minnesota 55116 Sheldon Stewart 2092 Watson Avenue St. Paul, Minnesota 55116 LIMITED PARTNERS: . Stuart H. Nolan 12 Timberglade Road Minneapolis, Minnesota 55437 fIerbert R. Goldenberg 4925 Coventry West Minnetonka, Minnesota 55343 Ronald L. Harris 1885 Highland Parkway St. Paul , Minnesota 55116 Sheldon Stewart 2092 Watson Avenue St. Paul , Minnesota 55116 VI The term and duration of the Partnership shall commence on the date hereof and terminate on December 31, 2027 , unless sooner terminated in accordance with this Partnership Agreement or by operation of law. VII The Partnership, as a Limited Partnership, will not have directors. Its affairs will be directed and managed by its General Partners whose names and residence addresses are set forth in Article V above. VIII The amount of cash and a description of and the agreed value of the other property to be contributed to the Partnership 2 _ � , , . .. __�__ .._.�.....�._. __ �� `,��r'• by each Partner, General and Limited, is as set forth on . ;� Exhibit A attached hereto and made a part hereof. The Limited Partners have not agreed to make any additional contributions to the Partnership other than as set forth on said Exhibit A. IX The share of profits and losses of each Partner shall be as follows• GENERAL PARTNERS : Stuart H. Nolan 1$ Herbert R. Goldenberg �� 1$ Ronald L. Harris 1$ - �� Sheldon Stewart 1� LIMITED PARTNERS: Stuart H. Nolan 24� Herbert R. Goldenberg 24$ Ronald L. Harris 24$ Sheldon Stewart 24$ TOTAL 100$ X So long as the Act remains applicable to any pruject of the Partnership, the real property of the Partnership shall not be sold, transferred, or assigned except as permitted by the terms and provisions of the Act. XI All of the individuals subscribing to this Certificate are of full age and are citizens of the United States and are residents o� the State of Minnesota. Notwithstanding anything to the contrary containec� in this Certificate of Limited Partnership, for so long as the Act remains applicable to any project ot the Partnership, at least one of the General Partners shall be a citizen of the United States and a resident of the State of t•iinnesota and at least two-thirds of all of the Partners shall be citizens of the United � States. XII The Partnership has been organized to serve a public purpose and it shall be and remain subject to the supervision and control of the Minnesota State Housing Commission, 3 . . , . __._. �, `� ,r i y , `:� authorities and governing bodies , as provided in the Act, so long as the Act remains applicable to any project of the Partnership. All real and personal property acquired .by ttie Par.tnership and all structures erected by it shall be deemed to� be acquired or created for the promotion of the purposes of the Act. XIII After providing. for all expenses , taxes, or payments in lieu of taxes, and assessments there shall be paid annually out of the earnings of the Partnership from any project for interest paid to the Partnership or to any of its Partners , amortization, and dividends a sum equal to but not exceeding either (i) eight percent (8$) of the total actual final cost of that project as defined in Section 462. 635, Clause 2 of the Act, or (ii) eight percent (8�) of invested capital or equity from any project located in a city of the first class in an area designated by the local governing body ,pursuant to Section 462. 415, Subdivision 6, of the Act. The Partner- ship may elect to have either (i) or (ii) above applicable to it, pursuant to Section 462 . 611 of the Act. The obligation in respect of the above-described payments shall be cumulative , and any deficiency in interest, amortization and dividends in respect of that project in any year shall be paid from the first available earnings in subsequent years . Except as otherwise set forth in Section 462 . 695 , Subd. 2 of the Act, or as set forth in other sections of the Act, any cash surplus derived from earnings of that project remaining in the treasury of the Partnership in excess of the amount necessary to provide such cumulative annual sums shall , upon a conveyance of the project or upon a dissolution of tY�e , Partnership, in accordance with the provisions of Section 462 . 695 of the Act, be paid into the general fund of the city in which that project is located. XIV Upon compliance with the provisions of Section 462 . 695 of the Act, the property of the Partnership may be conveyed in fee as provided in that Section. � XV Mortgage indebtedness, income debenture certificates , and stock of the Partnership may be retired if, as and when there shall be funds available for amortization purposes in the treasury of the Partnership. 4 . . � , , __._. �, •�4:'�r �I . �. The Limited Partners shall have the right to assign all or a part of their interest in the Partnership provided that such an assignment shall be effective only to give the assignee or assignees the right to receive the share of profits to which the assignor Limited Partner would other- � wise have been entitled. The assignee of a Limited Partner shall not have the right to become a substituted Limited Partner except with the consent of the General Partner or General Partners. . � XVII � The General Partner or General Partners have the right to admit additional Limited Partners at any time and upon terms and conditions as the General Partner or General Partners shall determine in their sole discretion. XVIII • No Limited Partner has the right to priority over other Limited Partners, as to contributions or as to compensation by way of income. XIX The remaa.ning General Partner or General Partners shall have the right to continue the business of the Partnership on the death, retirement, dissolution or insanity of a . General Partner. XX � No Limited Partner has the right to demand or receive property� other than cash for his contribution. � XXI Pursuant to Section 462 . 421, Subd. 20 of the Act, this Certificate and any amendments hereto shall not be filed for record by the Register of Deeds of the county where the Partnership` s principal place of business is located unless the same shall be accompanied by a certificate of the consent of the state housing commission stating that this Certificate or the amendment hereto is consistent with the purposes of. and in compliance with the limitations and restrictions imposed on redevelopment companies by Sections 462 . 591 to 462. 711 of the Act. � 5 ' ' + , . _ _ � IN WITNESS WHEREOF, the undersigned have executed this , Certificate of Limited Partnership as of the day of � , 1977. ' • GENERAL PARTNERS Stuart H. Nolan Herbert R. Goldenberg , ' Ronald L. Harris - Sheldon Stewart LIMITED PARTNERS � , Stuart H. Nolan Herbert R. Goldenberg Ronald L. Harris ` Sheldon Stewart 6 . , � , � . , �+ STATE OF MINNESOTA ) ' • ) ss COUNTY OF ) On this day of , 1977, before me, a Nntary Public within and for said County, personally appeared Stuart H. Nolan, to me known to be the person described in and who executed the foregoing instrument as a General and a Limited Partner, and acknowledged that he executed the same as his free act' and deed. STATE OF MINNESOTA ) ) ss COUNTY OF ) . On this day of , 1977, before me , a Notary Public within and for said County, personally appeared Herbert R. Goldenberg, to me known to be the person described in and who executed the foregoing instrument as a Gcneral and a Limited Partner, and acknowledged that he executed the same as his free act and deed. . , STATE OF MINNESOTA ) . ) ss . COUNTY OF ) On this day of , 1977, before me, a Notary Public within and for said County, personally appeared Ronald L. Harris , to me known to be the person described in and who executed the foregoing instrument as a General and , a Limited Partner, and acknowledged that he executed the same as his free act and deed. .� � _ . � STATE OF MINNESOTA ) , ) ss COUNTY OF ) - ' � On this day of , 1977, before me, a Notary Public within and for said County, personally appeared Sheldon Stewart, to me known to be the person described in and who executed the foregoing instrument as a General and a Limited Partner, and acknowledged that he executed the same as his free act and deed. This instrument was drafted by: Paul H. Ravich 3724 IDS Center Minneapolis , Minnesota� 55402 8 . . r , , . . `.��.ry,�f , `.,� EXHIBIT A The four General Partners and Limited Partners shall eacn� contribute to the Partnership an undivided one-fourth (1/4th) interest in the following-described real estate which has an agreed value of Three Hundred Fifty Three Thousand Five Hundred Dollars ($353 , 500. 00) , which will be � owned by the Partnership in its entirety following said conveyance: - Lots Four (4) through Thirty Two (32) , inclusive, Block Four (4) , Youngman & Lamm' s Addition, Ramsey County; Minnesota. The four General Partners will each contribute to the Partnership one-fourth (1/4th) of all funds in excess of funds borrowed by the Partnership from the Saint Paul Housing and Redevelopment Authority and secured by a mortgage in favor of The First National Bank of Saint Paul, necessary to fully construct and equip a 101 unit apartment project on the above-described land, ready for occupancy by tenants . The Limited Partners shall each contribute the sum of One Hundred Dollars ($100. 00) to the capital of the Partnership. CERTIFICATE OF CONSENT ' � Pursuant to Minn. Stat. § 462. 421, subd: 20 , the State Housing Commission hereby consents to the filing of the Certificate of Limited Partnership of Shepard Park Plaza and states that it is consistent with the purposes of and is in compliance with the limitations and restrictions imposed on redevelopment companies by Minn. Stat. §§ 462. 591 to 462. 711. Dated: James J. Solem � Director of Office of Local & Urban Affairs • State Planning Agency For the State Housinq Commission , . . ' ,, . . . : , � , EXHIBIT G . LOAN AGREEI�2�;�vT � _ BETWE�N . HOLT$ING AidD P,ED��JELOP*�L�1T AUTHGRI'iY OF THE CTTY OF SaI�;T F�liI,, L-SINN�,SOTA, ASSIGNED TO THE FIZST Nr,TI0:�1aL �3��i� OF � SAIN':' PAUL, �?IN�ESOTA 1'�r1D SHE2t�RD Pt:?.K PLiZa, A LT_"�IITED PART.�EP,SF_IP Dated: �Tover„ber 1, 19 7 7 1!1@ 1::ti'.°Z'°S�. C� ��:° F'?01:_i CJ -�ui1� :@,a2�72�C^ °':� aL'�:O�?'"�' O.i. ' �:�t � _1 the City of Saizt P�u1, `•Iinneso�a, ir. tnis 'LOa:? Agr�er�ent ��as been assic:�e� �o T.e �irst �;a+��ona3 Ban�c o� Sain� Paul. Minnesota, pursua�� to an �ssig2�en� o� even da;� fro� �.�Ze � i:ousing ar_d ?�d��lo�mer.� authority of �he City o= Saint + Paul. � � BP.IGGS �;D UO�G�`: Pro�essional Association � � 2200 First Na�ior.al Bank Bui?ding Saznt Paul, Minr.esota 55101 � • �=�"' ~ . TABLE �F CONTE?�'TS , �� . � (Not a Part of the Loan Agreement) � Page ARTICLE 1 - DEFI�IITIONS, EXHIBITS AND RULES OF INTE:tPRE^1ATIODT 1 Section 1.01� Definitians 1 Section 1.02. Exhibit � 3 Section 1.03. Rules of Interpretation 4 ARTICLE �2 - REPRESEr±TATIONS � 5 Section 2.01. Represer.tations by the CiLy 5 � Sectior. 2.02. RepresenLa�ions by the Compan�T 6 ART2CLE 3 - THE LOAN 9 Section 3.01. �-nour.t and Source of Loan; � Repayment 9 Section 3.02. Company' s Obiiga�ior.s unco:,di- � tional 10 Section 3.03. Company s Der,edies 10 Section 3.04 . Initial Serv?ce Fee ?Q Section 3.05. Annual Service Fee 10 Section 3 .Oo'. Li;:iita�ion of Partners Lia�ilitv 1G '�1RTICLE 4 - COI�IYP.DIY"S CO�I:;LtA:�iTS ' i2 Section 4.01. Finar.cial Statem�ents I2 Sectior_ 4.02. Ir_demnity 12 Section 4. 03. Continuing E:;istence ar:d Qualiiication 12 �Section 4.04. Repo�ts to Goverrunental Ac,�r.cies 13 Section 4.OS. P•lortcaqe �1ith F.es�ect to Proj act 13 Section 4.06. Con�truction of ?mprove:r:ents 14 Section 4 .07 . Pres2rvation or Tax E;:emption 1S Section 4.Q8. Covenants , Rules, Laws, and �' Regulations 14 Section 4.09 Loss of Tax E:ce�ption - Rede*nption of Hor.ds 15 Section 4.10 . Effect of Force Majeure 16 ARTICLE 5 - CO��IPr��IY ' S OPTIONS 18 Section 5 . �?1. Prepayme:�ts 18 Sectio:� 5. '?2. Extraor3ina�y Fre�oavr.ents ?8 - , . _ _..._._,...r__.. _,.� _ _ � ._ _�� . . , bpf 9/11/77; 10/7/77; 10/25/77 ' ARTICLE 6 - EVENTS OF DEFAULT �dD REti1EDIES 19 Section 6.01. Events of Default 19 Section 6.02. HRA's Remedies Zp Section 6.03. Disposition of Funas 20 Section 6.04 . Manner or E:iercise 20 Section 6 .05. Attorneys ' Fees and Expenses 21 Secti�n 6. 06. Effect o� Waiver 2� Section '0 .07. Notice of Opportunity to Cure 21 � ARTICLE 7 - GE�IERAL � � � 22 Section 7.01. Notices 22 Section 7.02. Bin3ing Effect 22 . � Section 7.03. Severability 22 Section 7 .0�. Amendmen�s , Changes and ATodifications 22 � Section 7.05. Execution Counterparts 23 Section 7.06 . Li.mitation oi HR�' s Liability 23 Section 7.07 . Assignment by �iRA 23 SIGN�TURES . . 24 ASSIGN�IE�1T 25 � THIS L0�1 AGREENIENT dated as of November 1. 1977, , between the Housing and Redevelopment Authority of tze Citv of Saint Paul, l�iinnesota, a political subdivision in the . State of :�innesota, called herein the "iiRA" ; and Shegard Park Plaza, a limited partnership, called herein the "Co:npany" , WITNESSETH that the HRA a.*�d the Company each in consideration of the representations, covenants and agreements of the otzer as set forth hereir_, mutually represent, covenant and agree as follows : . ARTICLE 1 � . DEFINITIONS, E�iIBITS A.'JD RULES OF I.dTERPRET3TTOld • Section l.�l. Deriniticns . In this Agreement the following terr.is have the �ollowing respective meanings unlzss the conte�t hereoi clearly requirzs othertvise: � (1) Act: The Minnesota Municipal Ind�:strial Devel�p- ment Act, Minnesota Statutes , Chapter 474 , as amended; (2) HRA: th� �ousing and Redzvelo��r,en� Authorit�.� o= the City o� Saint Pall�, :�iinnesota, i�.s successors �nd assigns; (3) HR� Representative; t,'�e EYecu�ive Director oi the HR� or an�: �erson appoir_ted in �vritir.g by the ExecuLi�-e Directo� of th� rRY; . (4) Co:��ar.v: Shepard Par� Plaza, a liriited partn�rsh=� orga�iz�d under �,e P�Tinnesota Li.�ited Pa=tnership Act, Sections 322.O1 tc 322. 31 �lin:�esota S�atutes and a redevelop:�ent com�anv within t�e neGning o: Sections 462.�15 to 462.711 r:tir.nPSOta j Statutes coasist�ny of Stuart H. Nolan, Herbert R. Goldenberg, Ronald L. Harris and Sheldon Ste;aart all of whom are bo�h ' general a�.d lir.iited partners , its successors ar_d as�igns , and any surviving, resulting or transferee persor_ or en�ci�y ��hich may ass:.s..-ne its obligations in accor3ance with the provisions oi this Agreement; (5) Compar_y Renresentative: a person designated to act � � in behalf oi ttze Cc:�pany, as evidenced by a written certi�i- cate furnished to the FiR�, ar_d Lender, containing the s�ecimen signature of such person and signed for �he Corpany by any t;�o of its general partners; (6) Comnletion Date: t,'ze 15th day o� t,h� month ne::� following th` issuance by the City oi Sai�t Paul of a Cer�i- ficate o= Occurancy but i� no event laTzr t'�ar July 15 , 1979 whether or not a Certi�icate o*_= Occupar.c� has been issue� bv the City of Saint Paul; � _ _ . . , . _ __ -- __-.,._.,..._ _.� (7) Construction Costs: all costs paid to construct, install, purchase and complete the Improvements , including, ° but not limited to, site preparation costs , architectural , fees, engineering fees, and all costs of labor, �aterial and � services paid or incurred by the Company; (8) Counsel: an attorney designated by or acceptable to the Lender, duly admitted to practice law before the � � highest court of any state; an attorney for the Company or ARA may be eligible for appoint�ent as Counsel, provided such attorney is not on the Board of the HR�, or a partner . of the Company; (9) Disbursing Agreement: tne Disbursing �agree�ent, � dated rlove*:iber �, 1977, between the HRP,, Conpany and Lender, relating to construction oi the I:nprovements and payment of � the Project Co�ts; (10) Ev?nt of Default: any of the events described in . Section o.01 hereoi; (11) Improvements: the structures and ectui�ment {i_z- cluding personal property) an3 other improvenents to ba constructed or installecl b! Conpany or. the Land in accor�ar_ce with t,he Plans and Specifications; (12) Ccde: t�e Ir.ternal Revenue Code oi 1951 as a�:�::ced; (13) Lar.d: the real estate described ir. Exhi�it :; � (14) Ler,de�• The r irs� National Bar.k of Sain� Paul, Saint Pa�sl, :Iinn�sota, a national banking associa�ior_, its successors and assi,gns; � (?5) Loan and Carrvir.g Ch?rges : �I.l initial and annua? . service anci co:;��itr,ier�t r"ees to tne :iRA and Lender, brokerage ' zees, interest charges, service ieas , atterney rzes (including atLorneys Lo� tne :i�P_, �er.der ar_d bcnd cot:.nsel) , ad�inisL�a- tive fees, service fees due HRa, iiscal consultant's fees, ' accounting fees, centractors zees , developers fees , title insurar_ce �ees and char�es , recording fzes � i2QiS�!'dt10ri taxes, real estate taxes, s?ecial assess�.ents , insurance � premiu�-ns utility charges and other like expenses and charges � incurred by Company in the construction of the Impro��er�.ents ard issuance of the Note; (16) Mortgage: the P-lortgaae and Securi��r Agreement be�•,�esn th� Company, as mortgagor and debtor, and the Le��er, as mortc�gee ar.d secured party, ated November l, 1977, relating to the mortgage on thel�and and the securitv aaree- nznt wit�: respect to equi�ment and otner personal proper}y o= ComAany on the Land given by t:�e CoMpa:.y to secure aa�ent o� the Notz and intzrest thereon; -2_ ,: _. .. ___....._..w�. .� .� (17) Net Proceeds: :vith respect to any insurance �ay- ment or condemnation award, the amount remaining therefrom ' after payment of all e:cpenses incurred in the collection thereof; �• (18) Note: the Housing Revenue Note or" 1977 ��heoar8 ' Park Pla2a, Project) , to be issued by tne H�2A pursLant to the Resolution, to evidence the loan of $3,200,000 made by the Lender to the HR�1; (19) Plans and Specifications: the plans ar.d s�ecifi- cations for '-�.he construction of the Improvements, which have been. approved by the Lender, tog�ther with such mocifications thereof and additions thereLO as are reasonably deter.nined by the Cempar.y to be r_ecessary or desirable for tne completion of the Improvements and are approved by t,�e Lender; ,, (20) P�incipal Balance: so much of the principal su.� on the rlote as from time to time has been advanced to or for the benefit of the HR� and remains unpaid; (2Z) Project: t:�e �aad and the Inprove::ients taerzon con- sisting of 1C1 a�ar t�ent units suitable fo.� use as compiet� peri;lanen� ?ivi:�g facilities fo� a sincle person or fa*�ily a.�d func�_cr.Gll� re�ated ar.� subordinate facilitizs as t.ev may from time to ti�n� exist; ' (22) Project Costs : the total of a?1 ConstrLCtion � Costs wnicn inciuG�s ai� Inprovemen�s and Loan and Carryi�c; ' �harges; and • (23) Resolutior.: the resolution of the HR3, adopted October 25 , 197;, authorizir.g the �ssuance of the �Tote. • (24) Guaran�z�: thz guarantee of tne pay;nznt of t:za principal a.a interest on the Note to be execut2d i�y the general partners o� the Co:�aany zhe �o� and ter^is of wnic� • are attached as �xhibit B. Section I.02. Exhibits. T�ze follo�•,?ng E:�hibits are attached to and by reference made a part o� th�s Loan . Agree;:�ent: Exhibit A: a legal descri�tion o� the La*_:3, Exhibit B: a fcrr,l of `ne Guaran�ee to be exe�utz� by the general partners of t:ze Company, -3- �. bpf 9/11/77; 1C/7/77 . _ __... _ _ �.__._. _ � � � � Exhibit C: forra of a letter of credit to be furnished to HRA to providP for a reserve against non- ' � payment of principal and intarest ar.d premium, i� any, on the Note under the circumstances described in said letter of credit. Sec�ion 1.03. Rules of Interpretation. - (1) This Agreement shall be internreted in accor3ar.ce • with and governed by the lat�s of the State o� i�linnesota; � r2) The words "herein" and "hereoT" � and �,uords o� . • si;nilar import, without reference to any particular section � or subdivision, refer to this Agreement as a F�role rather than to any particular section or subdivision he?-eof; (3) R�ferences herein to any particular section or subdivision hereof are to the section or subdivis�on of this instrumen� as originally eYecuted; and (4) W'here the Cor,►pa.^.y �s pe?-mitted or required to dc or accomplis;� ar.y act or thing hereur.der, �he Cc-ipa�y ma� cause th� s�-�e to be done or acco�plished �aith �he sa.-ae forc� and effzc� as if dor�e or acconplished by the Cer,:�ar.y. (5) T'�e Le�s used herein (in th�s �greer�,�*�t) ar.d �.'�o�e used ir. t:e relatec Disbursing �gre�ment, �iortgag� a��? Securit�� Ac;.zc^�:� a:�d tiote t�esol:�tion, u�l�ss t?:e conL�;;� � in sucn case s�all r2quire other,��se, shall have the sane mea:�ing in all of '-�.Y�,e said instru.�nents. -4- <Y`;;",`� ,� ARTSCLE 2 `� REPRESENTATIOI`TS ' Section 2.01. Representations bv the HRA. The - � HRA makes the iollowing representations as the basis for its covenants herein: (1) the design and plan of the Project comprises real property useiul in connection with the operation of a . revenue-producing enterprise as contemplated by Section 474.02 (la) of the Act; (2) in authorizing� the Project the HRA's purpose is, and in its judc-,.ment the eifect tY:ereof wi?1 be, to prornote the pub�lic �aelfare by the encouragement and promotion of economically sound development and the provisior, of reduce3 housing costs , increased availabilit,r o= aousing, an� additional er.lploymeni opportunities �or residents oL the City and surrounding �rea; and tne Project has , been approved by the H�s as tending to further the pur�oses and pol.icies of the Act; (3) the issuance and saie of the iVote, the executior. and delivery of this Agreenent and the Disbursing agr�e�ert, and the per�o�ance of all cov�nants and agreements of the HRA contained ?; tnis Agreement and the Disbursing Agree:;�en�., �d o` alI other �cts ar.d tnings required under tne Con- s�i4ution an� laws o� the S�d�2 of ��?innesota to mai�e �i:is Agreement, the Disbursing �5ree:��nt and� idote vaiid and binding obligations o� the HFt.� in accordance ��ith tneir terns, are authorized by the �ct an3 have been duZy authorized by resoiutzons o� the governir.g body of the HRA a3opted at me��cings ttiereo� duly called and held c:� . August 10 , 1977, and October 26 , 1977 , � t�zz af�ir^:at�tr� vo_te .of not less than a ma�ority of its�a e:n'r�ers; i (4) to provide funds to be loaned to ~inance the Project Costs, in antici�ation of the repaym�nt ther�of, �he HP,A has duly au�'�orized t�.e Note in tze principal amount of $3,200 ,000 to be issued upon the t�r.ns set forth in tne Resolution, under the provisic.^.s or wnich th� HRA's interest in this Agree:�ent is assigned to th� LEnder as security �or the payment oi the principal of and int�rest and prertium, if any, on the Note; • (5) pursuant to the Resoluzion, the HR� has autherize� and directed the Lender to disburse the proc°eds of the TTote � directly to t:�e Company and s�:ch ot::er �a_ties as riay be entitled to pa�ent for Project Costs , Lpon raceipt oT suci: -5- . .; � . � ' �. , supporting documentation as the Lender may deem reasonably � necessary, including compliance with all conditions set � ' forth in the Disbursing Agreement; � ` (6) substantially all of the Note oroceeds will he , used to provide residential real property (and facilities which are functionally related and subordinate tnereto) ror _ family units •�vithin the meaning of Sec�ion 103 (b) (4) (A) o� the Code, and the regulations promulgated thereunder; ar�d sucn family units will be available for use by members of the general public witnin the meaning ot the aforesaid Code section. ' . (7) the use of the Project for the purpose and ir. the manner contemplated by this oan Agreenent con�orms to all presently applicable zo�ing (by special use per^.1it or otherwise) , pollution cont 1, ��ater conservation, ar.d other laws, regulations , rules and ordinances of the Ciz� and County in whic:� the Project is locat�d; (8) said No�e is to be is sued within the exerr,ptio:� provided under Sectio� 103 (b) (4) (A) of the Ccde t�ith resnzct to reside:�tial real property for fa�ily ur_its, prov�ded t�at notZing herein shall prevent thz HR� iro:n qualii��ing the Notz undzr a di=Terent exe��tion if, anc �o t�e eYter_t suc:� eYenption �s pe?-:nitted by la�•� and is consistent �Y�th the objects ar.d �ur�oses o� the Act; and (9) the :�iR.� will not nake or pe�it any use o� the - proceeds of �ne ilote to be issued, which, if such use had bezn reasonably ex�ected on the date o� deli�zry o� and payment for the Note," wou�d have c�used such obligaticn _o be an arbitrace cbligation within tne mear.ing of Section 103 �c) of t:�e Code and any regulations pramulgated thereuncer; . and the HRA wi1l comply with the recuirements of said Sectior. 103 (c) and the reguZatio7s pertaining thereto whilz ' tne Note to be issued hereunder remains outstandir.g. . Section 2.02. Representations bv the Compant� . The Company makes the follo;�ing repre�enta�ions as the basis for its covenants herein: (1) �he Company is a limited partnership ar_d re�eve?or�- ment cor,.pany as hereinabcve de�inec duly orga�ized under the laws of th� Sta�e of Minnesota, and has gower to enter into this Agreemer.t, the rIortgage, and �he D�sbursing P_greement _ and to use the Projec� as a facility zor residential housing for fami?y units; and by prcper partr_ersnip action the Company has a�.:thori�ed the execu�ion and deliver,� of this Agrze:�e:�t, t'�e �iortgage and the Disbursing Agree:��nt; -6- . , .; _ , _ _ . _ ._ . • .. _ _.,_. ..___. _._� ;�.;,;�� (2) the execution and delivery of this Agreement, the ' "y F Mortgage and the Disbursing Agreement, the consur.t.*nation or ' '"� the transactions contem lated thereb p y, and the fulfill:r.en-` of the terms and conditions thereof do not and will not conflict with or result in a breach of any of the ter�s or conditions of the certificate of l�.mited partnership or " rules of the Company or any lacv applicable to it or o= any restriction or of any agreement or instrunent to which the Company is now a party or by which it, or its property, is bound, and do not and will not constitute a defaul� under any of the foregoing, or result in the creation or imposition of any lien, charge or encumbrance of a?�.�- nature upon any of the property or assets of 1�.he � Com�ar.y contrary to the ter�s of any such instrLment or agree:ner_t; (3') the financing of the P�oject by the HR? will substantially assist the Company to construct the Project and will e`fect substanLial cost savings in pro�r��i�g ='�e housing facilities to be constructed; (4) there is adequate public acc�ss to tlie Pr�ject and the ;;se of zhe Project for the purpose ar_d in zhe �::��ner contemplated by t�is Agreement conforms to all presen�lyr apglicable zoninq, pollutior. control, :Yater censervatior_ �zd other la:•�s , regulatic�s and orCinances of the �ederal Governl-ner.t and t:e State of P�linnesota ar_d res�ec�ive a,�Tci�s thereof and the pelitical subdivisions ia c•�hicn the Proje�t is I.008�2C1 to the best of the knowledge, info�.a�ion and b�?ief of the Coxpa�y a.nd i�s general partr.ers :a�:o her�;�v re�reser.t -c.hat t`�� Coripany by one or more o� �i�s general �ar�ners nas ::ta�e rzasona ...@ ll2Cfllyry anouz sLCn a:as , regulations and ordinances; �5) tne proc�eds of Lhe Note, together with the �t::er . . funds to be contribut2d by Company will be su`ficient to pa� the cost o� acquiring and ccm�letir.g the Project as Zis- cussed herein so as to per:nit its operation �nG t:�e production of revenue su�ficient to pay the Note and t'r_e interes` ther�in as pro�ided herein. (6) substantially all of the proceeds o� the �1ote will be used for the acquisition of proper�y o� a character � subject to the allcwance for depr�ciation c�ithin the meaning oi Sectior. 103 (b) (6) (A) of tne Code; (7) the general partners of tne Co�pany agree to execute the for.n of Guaranty attached hereto as E�hib�.� B, at the sa:-�e tine this Agreement is executed; (8) adequate ar_d co:r!�arable pri��a�e finar_�ir.g �or :��e Project �aas not foun�� by ths Ccmpany to be reasona�ly available; �7- . . , , • ' • ,• bpf 9/Il/77; IO/7/77 � . K . � (9) a major inducement to the� Company to construct and install the I:�provements on the Land was the sourc� of financing • provided under the Act and the assurances the Ccmpany received from the HRA that such financing would be made available to the Conpany; and any Project Cos�s heretofore incurred by the � Company, for which the Company shall hereafter seek reinburs2:nent as provided herein, caere incurred in anticipation of rzi:nburse- ment from the Note proceeds i� such proceeds should become available on terms ar.d accentable to the Co:r.pany, and the Company investigated tne possibility of such fi:�anc=ng pr?or � • to incurring such Costs; . (10) tne Company will provide to the HRA, Lender and bond counsel alI infor�ation necessary to �acil?tate compliance with the Minr.esota Securities �c� or any other applicabl� securities la�e in connection witn the issuar.ce, sale ar.d delive_y ar_d resale of the Note; (11) the total of any •aorking capita]. ex_�enses attribu- table to ihe Project s:�all not .e�c��d $320,000, and the Com�any ;•�i?1 not oth�r;aise use any o� ��e Note proceeds in sucn a ;:iarne_ Gs to, or take any action which �vould, i.maair the e:�e:�at�on oi izterest o:. tne r:oLZ fro� fede��l . i�ceme taKa�io::; and (12) i�ze Cc:;laan�► c•�ill r_ot nake any use ot ::tone��s on ' deposit in any �una or account in connection with the No�e, ' whether or zot sLCn �:oneys wer� derived. fro::1 the proc�eds of the sale oL the ,:ote cr �rom any other sources , in a nanner wnich �e�I1 cause �he Note to we "ar�itrage O1]12c'y3�;Or," �rli.thi:? the m,ean�ng oT Section 103 (c) or t�e Co�e, an� any _ lasvful regu?ations promulgated ar proposed 'chereu�Ger, . ir.cluding Sections 1.103-13 and 1.103-14 0� the Inco�ne Ta:: Regulations (26 CF? Part 1) , as tY�,e same er.ist on the da`� of this Agree:�er_t, or may fron zime to tir.lz nerea�ter be . ar.iended, supalemente3 or revised. The Co:��am� rzserves the righ�, ho�•�e�er, to :,lake any invest�ent of such mcneys pernitted by S tate law, if, c�hen ar.d to th� e��er.� that said Sectior 103 (c? or regulations �romulgated theret:nder srall be repealed or r�laxed or shall be held void by final ju�,cr-r.�ent o= a court of co:apeten� jurisdiction, but only if any inves t�nen� made by virtue of sucn re�eal, rela:�ation or �ecision would not, in t:e opir.ion of counsel of recognized ca:.�petence in such matters, resul� in making the interest oa the Note subject to �ederal income taxation. � -8- ARTICLE 3 R � THE LOA:�1 , . 4 Section 3.OT. Amount and Source o� Loan; Repav- ment. The HRA agrees to lend t;�e Company, upon the terns " � and conditions set forth herein, the proceeds received fro� the sale of the Note. Subject to any rights of prepayr.ient granted herein and in the Note, the Compan1 agrees to repa1 said loan as follows: '(1) On the :fifteenth day of the �irst calendar month . next..succeeding the date on which the iirst advance of No�� ' proceeds is madA under the Disbursing Agreenent, and on t�!2 f if teenth da1� of each and every calsndar month thereaf te= until (and including) the sif��ent:-� day of the riith caler_:ar montn after the Completion Date (but in no event ?ater t'_:an December 15 , 1980) , the Ccmpany shall pay a su.*n equal �-o t�a interest then due on the Principal Balance of the �loteyin accordance �vi�h paragraph I thereoi; prot�ided tnat avail- �ble Note proceeds may be creditea against such payments t� tne extent and in the nanner provided in the Disbursi^g Agreement. (2) On tne fift�enth da1 of the six�h cal�ndar :�o��.'. next succeeding ti:e Completicn Date (but in no event lat�r than January 15 , 1980) and on the fifteenth da1 of each and every mont?�� tzereafter, the Cor��pany sha11 pay tne sw-1 necessary to �r�ortize the Principal Balance of tne No�e , over a period c� 25 years at an �nterest rate of 7. 25s pe: a.nnur.t. � � (3) On the due date, the Company shall pay any penalty or premii=r.: due under the Note. ' In any event, tne pavnents herzunder s'r:all D2 sufficier.t to pay all principal and interest due cn the Note as such pr�ncipal and interes� beco:ne du�, at maturity, upon redenr�tien or ot�ne��ise. Thz computations set fortn herein are bas�d upon a 30 day month and a 360 � day year factor. All payner_ts sha?1 be rtade directly to the Lender at its principal of�ice for the account or tne HRA provided t'r_a�. any sums received by the HR� uncier this Article shall be applied in payrtent of the princiaal of and interest on �lze rdote as provided herein and in the �tot� Resolution. Th� proceeds of the loan shall be adva.~:ced �y the Lender for the pa�ent of Projects Costs upon receip� � _g_ of such supporting docu.�entations as the Lender may deem " reasonably necessary, including compliance with the provisions of the Disbursing Agreement. . Section 3.02. Companv's Obliga�ions Uncondi- tzon�l.� A1Z payments required o� tne Company hereunder shall be paid without notice or demand and witnout setof�,. counterclaim, abatement, deduction or defense. The Company will not suspend or discontinue any pa�rments , and will perforrR and observe all of its other agreenents in this Agreement, and, e.Lcept as e:tpressly permztted herein, ' � will r.ot terninate this Agreement tor any cause, including • but not limited to any acts or circu�-nstances that riay con- � stitute failure of consideration, destructien or da.*nage. to the Project, eviction by paramount title, conmercial frustration of purpose, bankruptcy or ir_solvency of the HRA or the Lender, change in th� tax or other laws or administ=ative rulings or actions or" the L'nited S�ates o` . America or of the State of rlinnesota or any polit�cal subdivision thereof, or failure o� tne HRA to perfor:n and observe any agreement, wh�ther exprzss or in�li�d, or any duty, liability or obl�gation arising ouz of or conr.ected ' with this Agreer;iznt. Section 3.03. Com�anv's P.e:ne3i�s. i�Ieither tiay- ment nor anyt:�ing else contained in tnis Nrticle snali �e construed to rQlease the HP� from �he performance of ar.y oi its agreer.ter_ts in t:zis Agree�ent or constit�.:te a �,�a�.ver of any demand, seto`� , counterclai�►, abatemen�, d�duc�ion or . de�ense. , . ' Sectio:� 3.04 . Initial Service Fee. �,s ar.d ror an initial service fee to �oay the HR.� ior servic�s rendered and to be rendered durinq -�he first thre� vears of this Ac�reenent, the Compar.y snall Aay to t.he H?�A the sum of $32 ,C00 . Said sul-n . shall be payablz in three equal installments the first o� which shall be �avable on the date on t�hich there is cielivery of and p�y.ient for the tiote. The second installment sna?? be - due one year after the nominal date of the NoLe and �he third install*r.ent `�•�a years aiter the nominal date of '-..ne Note. Section 3.05 . Annual Service Fee . Cor:ur.enc�ng on thz third ann�versary of tne r_o�n?nal date of the Not� and contir_uir.g each and every year therea'�ter until tY�.e princi�al and inter�st on the Note have been paid in fuil or until the Note is ot?:erti�ise discharged, Co:��ny snall pay to the H�? as and for an annual service fe� the su.Tn of $3,200 . Section 3.06 . Li:�itation of Partr.ers Liab��?-c-�. From and after t^.e dat� ot cc:��leticn o- cons�ruct�or_ o� the Improvements as evider.ced by the issuance of a Certi?=icatz -10- __ ___ . . , _____.._.�.�..- . __-� � . � of Occupancy bv the City of St. Paul, no general or limited `'`� � na�tner of the Com an shall have an � y y personal liability zor • t"� payment of the Loar. or any otner a�-nount pursuant to this Loan Agreement, eYCept as set for�h in the biortgage and. Security ! Agreement of even date herewith made between the Company as Mortgagor to The First National Bank of Saint Paul, Minnesoza, as Mortgagee, the Guarantee betwzen the individual qeneral partners of tne Company and the Hr2� and anv note qiven bv Company to evidence advances Aursuant Lo the Ietter o� credit set forth as Exnibit C ereto. -11- ARTICLE 4 K cor�ArrY�s covEVArrTS . Section 4 .01. Financial Statements. The Company will have prepared annual finar.cial stat�ments (including a � balance sheet, statement of income and statement of changes in financial position) in accordance with generally accez�ted accounting principles , and if requested b� Lender or H� have such statements certi�ied by an independent certified public accountant, and, within 90 days of the close of each fiscal year, will furnish a copy to the Lender and HRA. . Section 4.02. Innemnity. �Tne-Company will pay, � and will protect, inderrini�y and save the HRa, its officers and employees har:nless �rom and against all Iiabilities , losses, dartages, costs, eYpenses (including at�orneys ' fees) , causes of action, suits, claims, denands and judgments of any nature arising fron: (1) any injury to or .deatn of any person or damage to property in or upon th� Project or growing out of or connected witn the use, non-use, cor_dition or occupancy of wZe Project or a �art thereof; (2) vio?atior. of any agree�snt or conditior_ of rnis Agreement, e:�ce�t by tne H�; (3) vi.olaLion of �ny contraet, agreement or restriction by �he Com�ar.y relating to the Project; � � (4) violation of any law, ordinanc� or regulation affectiny^ the Project cr a part tnereof or �he ownership, : occupancy o= use thereo�, or arising out of this Agreeme^t, t'�e Note or the transactions contempLated thereby and rela��:�g to ar.y require:�ents inposeG on the Lender as a bar.king in- ' s�itution or to any discicsure or registration_ reauire:;�ents imposed by any federal or state securiti`s law; and (5) any stat�ment or infor.nation rela�ing to the expenditure o� Note proceeds contained in the non-arbitrage certificat� or similar document furnished by tne Cempany to the HRA tahich; at �he tine made, is misleading, untrue or incorrect in any r.iaterial res�ect. The provisions o� this Sec�ion 4 .02 shall su=vive the pa�rment and discharge oi the D1ote. -12- ' • . :� �t`,��r � Section 4.03 . Continuing Existence and Qualifi- , -;,,,� cation. The Company is and through the term o� the Agree- ment will take all steps necessary to remain duly qualified to do business under the laws o� the State of Minnesota, and; . � (1) will maintain its existence, (2) will not dissalve or otherwise dispose of all or su�stantially all o� its assets, (3) will not consolidate with or :nerge into another business entity, or � (4) permit any corporation or other business ent�ty to consolidate with or r.lerge into it, unless zhe sur��iving, resulting or trans`zree busir.es.s en;.ity has a net worth at least equal to that of tne Company as or the date of s�ach trar_sfer consolidation, merger or acguisition, is d�aly ruaiified to do business in :�innesota, •and, if other than the Co:ngany, assuries all obligations o� tne Comnany under this Agreeraent. At least thirty days before ar.y merger, . consolidatior. or �rans=er ef asse�s beco:nes effective,' tze Com�ar.y snall give tne H:� and the Ler_d�r written notice of the proposed trar.sac��or_. The Co:l�any snall not merg� or consolidate with ar� corno�atio� or business entity i� th� result tnereoi would be to subjzct t-�e interest p�yable cn :.h� 2rote to Federal inco�e taxes und�r S2ction iO3 (b) o� tr,e Znternal Revznue Ccde o� 195� , as a^er_ded. �very survi�:�ny, r�sulting or trar.sferee � corporazion and other b�:s�ness er_tity referred to in this Section � .03 shall be bour_d by all of the covenants and agree:nents of t��e Ce:npany herein with resp2ct to any further consol�dation, merger, sale or transfer and snall execute an appropriate instrurtent assuming such cover.ants and ' agreeanents. � Section 4.04 . Repor�s to Governmental Ager_cies. The Conpany will furnisn to agencies o= tne State o� Minnesota, �nclu3�.ng but not li�ited to the Com.-aissioner of Economic Deve?egnsr.t and tr.e state Housinc Co:n.mission, � such periodic reports or stac.ements as they may reasonably require of the HRa or �h� Conpany throuchout the ter•n oi this Agreement in connection w�?th t�:e transacticr.s contemplated herein. � Section 4 .05 . ;�ioYt�age�tiVith Res��ct to Project. As additional security for �:e La cier, and to induce �he H� to issue and deliver the ��1ote, ��e Cc:,!pany agrees to e:{ecute and deliver tne �Ior�gage�t� t:: Ler_anr, and to ::!e�t ail its obligatiozs under t��e ��Io�tgage�� wi:ich coct:ment shall re�ain / . -13- � in effect until all payments required hereunder have been � , made; and the Company will cause to be recorded and filed in the office of the Registrar of Titles of Ramsey County,� Minnesota; the offices o� the Secretary of State of P-iinnesota and such other place or places as bo counsel shall deem necessary or desira.ble, the Mortgage and financing statements and �such other docu.ments as bond cou sel has deemed necessary or desirable to perfect or protect the mortgage and security interest of the Lender in and to tn� Project. � Section 4 .06. Construction o� Improvements. The � . Company will cause the Ir.+.�rovements Lo be constructed in accordance with the Plans and Specifications and the • provisions of the Disbursing Agr�e:r.ent. Section 4 .07 . Prese�vation of Ta:; E�e:;,�tion. The Company ��ill no� cause any �•�orking capital e�penses ' attributable to the Project to eYC�ed $320 ,000 and will not cause the proceeds of the Note to be used in a fasnion which, if such use had been reasor_ably expecte� at th� . Note closing, �ould have caused sucn obliga�ions to be arbitrage bonds :,rith?n the neaning of Section 103 (c) os" the Internal Reven��e Code ar.d all applicable t�^�orary, prop�se� or �inai ��gulations frc^� time to �ir�,e r_7?'O*t',12G3t2� thereunder if a^� to t'r.e extent such provisions remain in � fu?1 force and e=�ect; zr.� the Company will not other.oise use any of tY:e �io`e r�rocee�s , or take or fail to ta'te any . ac�ion, tPe 2L?"°Ct 0= Tn71'11C;1 GrO111C2 be �O 1T�Ud1.� Lhe , exenption o� interes� on `:e, Note rro?n "Federal i�come taxation. Sec4ion 4 .08. Ccvenants , Rules , Laws and Regulations . The CG:1Dc"LI2� agrees to comply wi-cn ai 1 apnli- cable Gover�v�.ental laws, regulatior.s, require:-ler.LS ar,d ru?es ' with respect to thz construction use, maintenance and operat?on � of the Projec� a^3 each item of equipment used or insialled or_ the premises described in ixhibi� A. In case any eguip- � ment or appliance on any it�m o?= e�uipnznt shall be require� to be changed or re�laced, or in case any a3di�icnal or other equipment or appliance is required to be installed on such item of equipnent or with respect t� the.Proj�ct in order to conply wi�h such laws , regulations , require:�ents and rules, the Compa:.1 agrees to riake such changes , additions a�d re- placer.ients at Companl' s so?e eY�ense. Company also agrees to obtain and reacquire all business perr,iits , frar.cnises , etc. which are necessary to th� operation of the Project. Com�any shall have tne rignt, in 5ood fai�.�, to contest anything required a� =� unde� thzs Section. Such cont�st shall ba at Company' s e::��nse and pending the outcome o° such contes-c Company shal? be �er:litted �o postpo:�� whatever :-1ay b� rzqui��u -14- , , __. __. ___ _.__,...,, , : � of it unless in the opinion of Lender (which snall be in �`�'�' � writing) such postponement �aould endanger the Project or • �� subject it to loss or forfeiture. • Section 4.09. Loss of Tax EYe*nption - Reder�otion � of Bonds . . - (1) In order to assure that the interest on the �to�e shall not be subject to federal income taxation, as a result of the loss of zxemptior. specified in Section ?03 (c) (�) (a) of the Code, the Co:npany covenants with a:�d represenLS to the HRA and the Lender: � . _ (A) that it will use substantially all ot the proceeds of the idote only for the purposes s�eciiied in Section 103 (c) (c) (A) of the Code ar_d the re5ulaticr.s (temporary prox�osed and permanent as the case may be) promulgated there:vit.h and tnereunder at the ti::�e at which such proceeds are used; . (B) that in the event th� taxab?lity oT interest on t:Ze Note should beco:,,e th� subject of any ad:ainistrat��e action or litigation, as a result o� ��hich the inte�est nav become taxable , ti?e ��:ipa�y shal l �ro:ipt?y, z^d ?� any e��nt �•�it?��n t��ty (30) da��s, give ti•�ritter_ notice o� �he pendency oL any such action or Iitigation to the fi�t.� ar.d Len�3er and the Co:n�any shall therea�ter kzep bot.z apprised o= the progress thereo`; ar.d (C) t:^.at in the e`ent the iriterest on the yote should become t�:�able by rzason oi final dete�-Tnination or adjudication, whether wizhi;� or :�i�hout tne control oz ��e Conpany, the Co�pany must nre�ay the No�e upor. th� te�:ns and conditior.s set forth �n p aa graph (2) of this Section . 4.Q9; a final ceterr.�inaticn or adjudication s�:all be or_s frort w�ich no anpeal may be, or is ir_ Tact, taf.en or rrom . wr,ich no ap�lic�.tion Tor rehearing may be, or is ir_ fac�, prosecuted and a iinal de�e�inaLion or adjudicatioz shall be dee:�ed to have been made as of the date upon which it is rendered, unless �•�ithin thirty (30) days ti:erea�ter the Company shall have (if permissible) undertaken, in good ' faith, such appeal or application and thereafter con�inue such prosecution ��rith due diligence. . (2) Any are�a�e�t requir�d by the occurr2nc� ef t:�e circumstances referrec to in parar.rapi: (1) (C) o� this Section 4.09 shall b2 ei�ected upon the �ollowing t�r_^.zs and conditions : -15- � . . _ _ . _ ____.-- -- -�..__._. --�,�,- " (A) withir. thirty (30) days after final deter- mination or adjudication of the occurrence of such circa.7- stances the Company shall give caritten notice to tne H� ar.d � Lender or in the event of its =ailure to do so the H� shall give written notice to the Lender and the Company, stating a date of prepayment not less than ninety (90) days after the notice is mailed and not less than thirty (30) days before t:ze first day of the then next succeeding month; Company shall make arrangements satisfactory to the HRA and Lender for tne transmittal of funds needed for such �re�av*nent in advance of that date; _ '� (B) the cash tirepavnent pr?ce payable at the tire- � a�,�«ent dat� shall be an a^tount equal �o the su�-n of the following: (i) an a.�tount which will equal the principal zmount of the P3ot� then out- standing (including any additional 2lotes issued under a supplemental agreement) plus accru interest thereon to tne redAmption date;��lus (ii) an �.mount equal to other advanc�s , fees, cosLS and expenses reasen�ly incurred bv the FiRr� and the Ler_d�r as a result of the �iote becoMing taxable. (3) No�:vi�zstanding ar_v other provision in tnis ' Section to �che contrary, the+Comoany shall at ?ts r�quesz ' be relieved of its obligations under this SecLion i= and " to the exzent 4hat Section 103 (b) of the Internal Reven�:e Code a.s amended so as to allo;a the IiPA to qualify �h� � Note under an eYemptio*� different frcn the exemption provided in Section 103 (c) (a) fA) of t:�e Code as o� tne • d�te of this �gr��.,�en� ar�d the ?�gr��*nent is ar•.�e�ded to t.hn extent reasonably d°te�-;,:in�d by �he HRA to be nec�ssariT to so qualit1 the Note and to assure comwliance ��ith any ' condiLions under the dirferent eY°:i'i�LlOri. Section a.10. Effect o� Force �iajeure. If by reason of force ?;�ajeure the Ccm�pany is ur_�le in whole or in part � carry out the agree�ents on its oart cantained herein,��ther than the oblig�tions of the Ccnpany contained in Sections 3.01, 3.02, 3. Oa , 3. 05, Section 4 .02 or Sec�ion 4. 03 hereof, the Comnany shall not be de�med in breac'� Qr violation of any provision o� this Agre�:nent or in default durir.g t�� continuance of such i�!ability. ^he te� "rorc� ms�e;�re" as used herei:� shall r,iean ac�s o� G�d; stri��s or ot:�er si�ilar -16- � , � __ _ _ _ .__..__ -,�. . disturbances; acts of public enemies; e:�plosions, brea�aye , or accident to machinery, transmission pipes or canals ; or partial or entire failure of utilities. The Company agrees , � however, to remed_y with all reasonable dispatch the cause or causes preventing the Company from ca=rying out its agree- ments; provided, ho��ever, that the settle�nent of strikes and other similar disturbances shall be within the reasonable discretion of the Company, and the Company shall not be required to make settlement of strites and othzr si,nilar disturbances by aCCeding to the demands of t:�e o��osing party or parties . when .such course .is in the reasonable judgment of the Co*.r�pany not in the best interests of the Coripany. � � -17- . . • . . • _ _ __._ _..._-------� . , bpf 9/11/77; 10/25/77 . � ARTICLE 5 COMP��IY'S OPTIOr1S Section 5.O1. Prer�avments . The Cor��pany may at any tir.ie trar.smit funds di.rectly to tne Lznder, in addition to amounzs, if any, o�her.a?se required at that time pursuant to this Agreer„ent, and direc� that said �or.ey be utilized, subject to the ter:ns and condit�.ons oi the Note, for the prepavment of all or a portion of the Principal Balance oi the Note. The HRP. shall cause the Lender to apaly any sucn prepayment against the appZicable prepay*aent premiLm, � ?f any, and then acainst �inal pri�cipal a:�ounts duz en the tJote if tha entir� Pri:�c�pal Balance and interest � thereon is not thereby paid in full in F�hich event sucn prepaymer.t Ghall not reduce trz monthly paymen�s req�.zir�d ' pursuant to Section 3.01 (2) hereo=. � SecLion 5.02. Extraord?narv Pr�na��ents . U�on t�e occurrence of an event o= da,-nage, des�rucLion or , . condemnation, ar_d in the e��ent restcratior. is r.o� requ��e� or the Companv does not choose to restcre �he P=oject, �ursuant to Section 2. 04 0= the T4ortgaye, �h� Diet Proce�c'.s of any insurance or conde::na�ion ae•�ard shal? be app'_i�d in prepay�r�er.t, wit�e�.:t a pre.;:i�.^Z, or the Prir:ci_al Balance o� �he No�e. The Lender shal? ap�ly ar.y �ucn nr�pa_yner.t ar,ainst the r�.:�al N�ir.cioal aTou:ts due on t:z �:ot� i� t�e " • entir� Princi�zl 3alance a�d in�erest thereo:� �s not trereby paid in °u?1 =*_: whic: eve::t such prepayatent shall not redLCe the montZly paY^er.ts �rea�:?red under Section 3 .Ol (2) her�oL. -13- . , �• •. . , , - - �_..._ ___ . ' � ' '. �4�`'�;r ARTICLE 6 '�,�d � EVENT OF DEFAULT AND REI�'iEDIES . Section 6.01. Events of Default. Any one or � more of the following events is an Event of Default under this Agreement: (1) if the Company shall fail to make ar�y payr;lents required under tnis Agreement on or before the date that the payment is due and such �e=auit continues =or twer�ty days; (2) if the Company shall fail to observe ar_d perfor� any other covenant, cor.dition or agree*nenr on its part � under this Agreement, the tiiortgage, the Note or �he Disbursinq Rareement for a perioa o: tl:irty aays a�ter written noticz, specifying such default ar.d requestinc that it be remedied, given to the Conpany by the HR� or ttie Lender, unless the Lender shall agree in writir_g to an extension of such ti*_�e prior to its eYpirat�en, or ior such longer oeriod as may be reasonably r.ecessary to reme�y such default provided that t:.e Company is praceeding with reasonable dilige,c� to remedl tne sane; (3) if the Co:�pany shall file a pet�tion in bank- ruptcy or for reorganization o� for an arrangement pursuant to anv Frzsent or future federal b�^�ru�icy ac� or under any si�ilar =ederal or state la:•�, or shall be adjudicated a bar.kruat or insolve'r.t, � or s"r.all make an � assignment for tne ber_e�it of its creditors or snall actmit in writing i�s inability to pav its debt� generalltr as they become due, or if a petition or anscJer proposinc . the adjudicatio?: of the Company as a bankrupt or iLs reor5anization ur_der any present or future f�deral bank- ruptcy act or anv simiZar federal or state la:� shall be filed in any court and such petition or ar.swer shall not bs discharged or denied witiiin 90 days after t'�e =iling thereof, or a receiver, trustze or liquidator oi the � Com�any or of al? or substantially all oi the assets of the Company or of the Project shall be appointed in ' any proceed?ng brought against the Compar_y ar.d s:�all not be discharg�d within 90 days a�ter sucr. appo�n u;lent cr if the Company snall consent to or acquiesce in suc� appoint�-tent, or if the estate or interest of �hs Cor:�par,_r in the Projec� or a part thereof shall be levied upon or attached in any proceeding and sLCh proce�s shall not be vacated or discharged �vithin b0 days aft�r such lsvy or at�achment, or the charter of t:e Co:,ipa:�y s�a1i ex�ire or be annulled or the Company shall be �issolved -19- � or liq�aidated (other than as a result of a transfer of its assets to or a merger or consolidation of the Company into or " wit a corporation or otner business entity under the con- ditions pernitting such actions contained in Section 4 .03) ; . (4) an Event of Default (as that term is def�ned therein) sha�ll occur ar.d ramain uncured under the Mortgage. Section 6.02. HRA's Re:�edies. tiv"henever anv Event of Default referred to in Section 6 .01 shall nave . happened and be subsisting, any_ one or more oF the fol-. lowing remedial steps may be taken by the HR� witn , the prior writ�en consent of the Lender: .� (1) the HRA may, at its option, declare al? ir_stall- ments oi the loan payable under this Agreemer.t (being �n amount equal to that necessary to pay in full the Pr?ncipal Balance of tne Note ass�:ming accel�raticn o� tne No�e und�r the terms thereof and pay •ail other ind�btedness t'�ere- under) to be im.mediately due and payable, wherzu�on tne sam.e shall become iml-nediately due and payaple by the Company; and (2) t'�e HRA nay take whatever action aL ?a�� or in equity may c�pa2ur necessary or appropriate to collect t'�e amounts the^. Cu� ar.d tnereafte-r to becor,ie due , or to -- enforce perfo�ance ar.d observance of any obiigation, • c�reertent Or CO`,i°21'c.:"i� Oi ''i.t1@ Ccr��pany L1riC12?' t!71s Agreement. � Section b .03. Disposition� of F:uzds . Any araounts coll�cted pursuant to action taken under Section 6 .02 shall, af Ler deducting aII e�penses incurred first by the HR�, ar.d then b� the Lender in collecti:r�g the sa�ne, bz appliad 'co • the Princip�l Balance o� the Note, and interest therzon, such amoL�ts bei�g applied first to interest a_^.C1 �::2ri to final principal am�ounts due on the rlote. Section 6.Qa . Nlanner o= Ex�rcise. No remedy herein co�±ferred upon or reserved to the H� is intended to be exclusive of any other available reme�y or remedies, but each and every such remedy shall be cumula�ive and shall be in addition to every other remzdy given ur.der this Agreement or noca or hereafter e:�istin5 at la�� or in equity by statute. Vo delay or omissior_ to eYercise any right o� power accruing upon anl �erault shall inpair any such right or power or shall be construe3 to be a waiver ther�o�, but any such right and po�f�er ,:�ay be " exercised �rom ti:ae to tirie and as o�ten as r��ay be , deemed eLae�ient. In or�er �o en�itle the H�.� to -20- . _ ._ . .._ .... . �..._. .__..W.�, � exercise any remedy reserved to it in-this Article, it , shall not be necessary to give any notice, other than such notice as may be herein expressly reauired. Section 6.05. �,ttorneys ' Fees and Expenses. In the event the Company should default under any of the provisions of this Agreement and the HRA or the Lender should employ attorneys or incur other expenses for the collection of a.mounts due nereunder or the enforce:�ent of performance of any obligation or agreeMent on the part of the Company, the Company will on demand pay to the HRA or the Lender the reasonable fee of such attorneys and such other eYpenses so incurred. � Section 6.06 . Ef�ect of Waiver. In the ecent any agreenlent contained in this r�,grzement should be • breached by eiLher party and thereafter waivzd by the other party, such ��aiver srall be limited to the parti- cular breach so waived and shall not be dee:�ed �o waive any other breach hereunder. Section 6 .07 . NoLice of Oppor�ur_izv to Cure. Wrienever notice is required uzd�r this Agree:�e::L, tne Disbursing Agre�:r.ent, the �Iortgage or the Note (the "Instr�-nents") as a cor.ditio� to a ceraul� beco�ing an Event of Detaulc �-!2 Company understands that it is entitled to not�ce �sith res�ect to a particular de=aulL ur.der cnly ore c= such I:'.strur�er�ts (being the Instru�-ner_t � , s�ecified i� suc� ^o�ice) and the opoortuni�y to cure under the speciLi�d Instrur.:ent and it is not er.titled to consecutive notices or consecu�ive op�ortunit�es to cure even thoug'r. tr.e defau�t specified may cor.sti�ute a defzult under mor� than one such I;�strt:.�ent and such ' default so sgeciiied if not cured sha?1 constitute an � ,E�ent of Defaul.t under all Inst=uments uncer ;ahich i� constitutes a default whether or not the particular _ invest-nent was specified in the Notice and shall per_nit the exercise of one or more of the remedies set Lor�.h �n � alI Instr�,^ten�s ur.der �,,�nich such ur.cured default const��u-ces an Event oi De��ult. _21 � _ . � . .. . . � . . .. •.:_..i_--._..---_.��._..__._�.i r . . bpf 9/11/77; IO/7/77 . • ~ ARTICLE 7 GE�TERAL .. Section 7.01. Notices . AlI notices, certifi- cates or other communicatons hereunder shall be sufficientiv given and shaZl be deemed given when nailed by c�rtified orr registered mail, postage prepaid, �aith proper address as indicated b�low. The 'r:RA, tne Comnany and the Lender may, by writ�en notice g��en by each to the others, designate any address or addresses to canich notices, certificates . or� other cor.tnunications to the:,i shall be sent when reauired ' as .contemplat�d by t�is �:Agr�er,tent. Until otherwise + provided by the respective parties, all notices, certifi- cates and cor.ununications to each of then shall. be addressed as fo�lows : To the HRA: Housing and Redevelopment Authority of Saint Paul Saint Paul, Niinnesota 55101 • Attn: EYecutive Director . To `he Ca:.ipany: �hepard Park Plaza 790 South Cleveland Saint Paul, Pdi^nesota 55106 � rlttn: Stuart �io�an with copy to: �c�nald Harris 2300 Tzrz;torial Road � Saint �aul, �Iinnesota 55114 To the Lender: The First Na�ional Bank of Saint Paul . 332 Minnesota Street • Saint Paul, Minnesota 55101 At�n: Judith A. Owen Secticn 7.02. Bindir.q Effect. This Agreenenz shall inu�e to the bene�it oi and shall be binding upon t�:e HR�and L'ne Ccr,�pany and �heir respective successors and assigns. Section 7.03. Sev�rabilitv. In t:ne event any provision ox" this P_gree:�ent shall be held invalid or un- enforceable by anl court of cc:��etent jurisdictio�, s�:cn holding snall not ir.validate or rend�r unenforceable any other �rovision hereo�. Section 7.04 . A*ner.dmer_ts , Chances and AlodiL�- cations. E�ceat as otzenais2 prov=ded in t:is ag=�e*:12:` - _22_ � : bpf 9/11/��; lU/7/77 _. _ ., _ _ �._... __<..� '. or in the Resolution, subsequent to the initial issuar.ce � of the Note and before the Note is satisfied and dis- charged in accordance �vith its terms , this Agreement may not be effectively amended, changed, nodified, altered, or terminated without the written consent of the Lender. Section 7.05. Execution Count�rparts. This Agreenent may be simultaneously executed in several counterparts, each of which shall be an origir.al �nd all of which shall constitute but one and tne sa•ne instrt:r.ienz. Section 7.06. Limitation of HRA's Liabilitv. It is ur_derstood and agreed by tne Company and tne Lender tzat � no co�enant oL tne HRA hereir. shall give rise to a pecunia*_-y � liability of the �R� or a charge against tneir general cre�it, or ta�i.ng powers. Tt is further understcod and agreed by the Co�:pany and the Lender that neitzer the HR.� nor the City of Saint Pau1 snall incur any pecuniary liability hereunder, and shall not be lianle for any direct out-of-z�ocket eYpenses related 'nereto, including adninistrative eYpenses and � fees and �isburserients o� the HR.A's attorney, bond counse? ar:d fiscal consultant, if any, retair.ed in cor.r.ec�ioT t�:er�- with, all of which expenses t:,�e Cc:nAar.y agrees to �av. If not�rithstar.d_ng the �rovisicns of �he i:nr,ieciat�l_y prece�_.,g sentence, tne HR� or the City incur any exper.se, or surfer ar.v losses, clai:as or dar.tages, or incur any liabilities in con- � nection with the transactiens cor.tem�lated bv this Ag�eement, t�e Company �vii' indennii1 and 'no1G ha_�Zess �z� HR� a:�d the C?ty fro:� t.�:� s�-e �nd will rei^.burse the H?,�, and City for any • legal or otn�r exaenses incurred by them in rela�ion -cherezc; ar_d this covenant to ir.de::�ni�y, hold har:aless anc reimbi:rse the City and F3R�1 shall survive delivery of ar_d payr,ien� o� t�e rlote. Section 7.07. Assigr,.*nent bv Ht'tA. The HRA may assign its righ�s under this Agree�ent and relat�d doctunents to the Ler.der, but any sech assignnent shall not operate to li�it or otn�naise af��ct the iollowing provisions runnir.g to the H:�.� frem tY�.e Compan1, which � shall survive any sucn assig:unent: Section 2.02 hereof � Section a .02 hereo� Section 4.04 hereof SECtion 4.05 hereo� Section 4.C�7 hereor Sectzon 7 .05 hereof � -23- , ' . , bpf 9/11/77; 10/7/77 . , . . . . '�. Upon ar.y such assignment, the provisions im�ediately . above running to the HR� from the Cor�par.y s:zall run jointly and severally to the HRA and the Lender, provided that the hRA has no right to assert any retained richts - so long as the Lender is asserting the agreements under � this Loan Agr�ement in a manner to orotect the H� and not bring adverse consequences to the HRA bv its actions. I�I WITYJESS ��iEREOF, the HR�, and the Co:*�pany have caused this Agree::ient to be e::ecuted in their respective corporate nanes and their respective corporate seals to be hereunto affi:{ed and attested by t��ir duly . authorized o�ficers, all as e� the date first abcve tvritten. . . HOUSI:`dG AND REDE��LOP'�LVT AUTHORITY OF SaT�vT PAUL By . . (SEAL) At�est: . SHEPP_RD PA�: PL�Za, a li:;�ited � , � na�tnership General ar.d Li.^�ited ParLr_er � General and Li�i�ed PaY�zer General and Li::,ited Partner Genera� and L'_:11t2C Partner _2d.. . EXHIBIT H Lots Four (4) through Thirty-Two (32) , inclu- sive, Block Four (4) , Youngman & Lamm' s Addition, Ramsey County, Minnesota. , r �, . � EXHIBIT I MORTGAGE AND SECURITY AGRF.EriENT � BETWEEN � ' . . . � l � SHEPARD PARK PLAZA, A LIP�lITED PARTNERSHIP �' AND - THE FIRST NATIONAL BANK OF SAINT PAUL SAINT PAUL, MINNESOTA Dated: ,; 197? This instrument was drafted by: -�- BRIGGS AND MORG��I Professional Association 2200 �irst National Bank Building � Saint Paul, Minnesota 55101 , , � , � �TABLE OP' CONTENTS , • � (Not a Part of This Mortgage) � � Page - PARTIES, RECITALS, GRANTSNG CLAUSES " � : : : . . . . . � . . . � • 1 . ��. ARTICLE I - COVENANTS OF THE MORTGAGOFZ � " ' � � � � ' � " � � � � 3� . � Section 1.01. Payment of Utility Charges, Taxes � and Assessments� ' � � �' • � � • • � � ' � • • 3 Section 1.02: Liens � � ' � ' � - � � � � � � � � � • 3 Section 1.03. Care o Property � � � • • � • 3 Section 1.04. Right of the�-Mortgagee to Enter 4 Section 1.05. Subrogation � � � � ' � � - ' - � � � � 4 Section 1.06 . Right of the Mortgagee to Perform 4 . Section 1.07. Limited Assumption � � � � ' � � � � � � 4 � Section 1.08. Disbursing Agreement and Loan Agreement . . . . . . . . . � . . 5 Section 1.09. Miscellaneous Rights of t e . Mortgagee . . . . . . . 5 Section 1.10. Assignment of Rents - 5 � ARTICLE II - INSURANCE, CONDEMNATTON, USE OF PROCEEDS 8 Section 2.01. Insurance � � � � � • � � ' � � � � 8 Section 2 .02. Condemnation • 8 Section 2.03. Mortgagor to Repairr Replace, — Rebuild or Restore � � � � � � • • � � • 8 . Section 2.04. Use of Proceeds to Prepay Loan ~ and Note . . . . � . . . : . . . . . . . . . . g ARTICLE III - DEFAULT 11 Section 3.01. Event of Default Defined � � � 11 Section 3.02. Remedies � � • � � • 11 Section 3.03. Liability of Partners of Mortgagor 12 Section 3.Oa . Wa�ver • � � � ARTICLE IV - MISCELLr,NEOUS ' . . . . . . 14 Section 4.01. No Implied Waiver � 14 �Section 4.02. Remedies Cumulative 14 Section 4 .03. Successors and Assigns � � 14 Section 4 .04 . Notices � • � 14 Section 4.05. Headings � 14 SIGNATURES . . � . � . . � � . . . . 15 " ACKNO�iTLEDGMENT � � � � � � � 16 . • . ► , . _._ _ ,.�. . . . This Mortgage is made this � day of , • • • •, 1977 between Shepard Park Plaza, a limited �;;�:�� partnership, consisting of Stuart H. Nolan, Herbert R. � ;� Goldenberg, Ronald L. Harris and Sheldon Stewart . all of whom are both general and limited partners said � � partnership also being a redevelopment company within the � " meaning of Section 462 .42 (20) Minnesota Statutes, (hereinafter called the "Mortgagor") , and The First National Bank of � Saint Paul, Saint Paul, Minnesota, (herein called the � � � "Mortgagee") . . . _, WITNESSETH, that, in consideration of the aggre- . gate sum of THREE. MILLION TWO HUNDRED TFiOUSAND DOLLARS ($3,200,000) made available to the Mortgagor by the Mortgagee through the purchase of the Note hereinafter referred to, the receipt whereof is hereby acknowledged, the Mortgagor does hereby grant, bargain, sell and convey � unto the Mortgagee, forever, the tract of land (herein- after sometimes called the "Land") , lying and being in the County of Ramsey and State of Minnesota, described in Exhibit A attached hereto and made a part hereof, Together with (i) all of the buildings , structures and other improvements now standing or at any tim2 hereafter constructed or placed upon the Land; and � (ii) all heating, plumbing and lighting apparatus , ' elevators and mot�rs, engines and machinery, electrical equipment, incir�erator apparatus , air-conditioning apparatus, wa�er and gas apparatus , pipesr water heaters, refrigerating plant and refrigerators , water softners , carpets, carpet?ng, storm windows and doors , windo•� screens, screen doors, storm sash, window shades or blinds, awnings, locks, fences, trees, shrubs and all other fixtures of every kind and nature whats�ever now vr here- after owned by the Mortgagor and located in, or about the � � Land, including all extensions, additions, improcements, betterntents, renewals and replacements of any of the fore- going; and (iii) all heriditaments, easenents, rights , privil�ges and appurtenances now or hereafter belongingr attacr.ed or in any :,�ay pertaining to the Land or to any building, structure or improvement now or hereafter located • thereon (all of the foregoing, together with the Land, are hereinafter referred to as the "Mortgaged Property") and �iv) all personal pro�erty on the Land except that which is owned by tenants of Mortqagor. TO HAVE AND TO HOLD the Mortgaged Property unto . the Mortgagee forever. PROVIDED, NEVERTHELESS, that if the Mortgagor, by making all payments required of it under the Loan . . � � . . _�- __ _-,. . . ' Agreement hereinafter referred to, shall cause and permit ., to be paid by (final pavment date) by or on behalf of the Housing and Redevelopment Authority of the City of Saint Paul, Saint Paul, Minnesota (hereinafter called the "HRA") � of the State of Minnesota, the principal suni of THREE � MILLION TWO HUNDRED THOUSAND DOLLARS ($3,200,000) , with interest, according to the terms and conditions of a note � (the "Note") , of even date, executed by the HRA to the . order of the Mortgagee, and sha11 also pay or cause to � � be paid all other sums, with interest thereon, as may be � . advanced by the Mortgagee in accordance with this ' Mortgage either to protect the lien of this Mortgage, � or by way of additional loan vr for any other purpose, : . and shall also keep and perform all and singular the cov- enants herein, in the Disbursing Agreement and Loan Agreement hereinafter referred to, required on the part of the Mortgagor to be kept and performed, then this Mortgage shall be null and void, in which event the Mortgagee will execute and deliver to the Mortgagor in form suitable for recording a full release of this Mortgage and any applicable terminati.on statements; otherwise this Mortgage shall remain in full force and effect. The Mortgagor represents , warrants and covenants _ to and with the Mortgagee that it is lawfully seized of the Mortgaged Property in fee simple and has the right and � lawful authority to mortgage and give a securitY interest in the same as provided herein; that the Niortgaged Property is iree from alI liens and encumbrances except as otherwise � approved by the Mortgagee; that all buildings, structures and other improvements now or hereafter located on the Land are, or will be, located entirely within �-�.he boundaries of the Land; and that the Mortgagor will warrant and defend the title to the Mortgaged Property against aI.Y claims and demands whatsoever not specifically excepted herein. • -2- :. . , _ - --- ____.__ _.., . � R . ARTICLE I COVENANTS OF THE MORTGAGOR � - The Mortgagor further covenants and agrees as � � . follows: . _ . � Section 1.01. Payment of Utilit�i Charges , Taxes � ' and Assessments . Mortgagor shall pay or cause to be paid . all charges made for electricity, gas, heat, water, or sewer � furnished or used in connection with the Mortgaged Property. The Mortgagor also agrees to pay all and singular the taxesr assessments, Ievies and encumbrances of every nature here- . . tofore or hereafter assessed against the Mortgaged Property before they have become delinquent provided that Moztgagor � shall have the riqht in qood faith and at its own expense to contest anv such charges , taxes and assessments and to � withhold payr,ient pending a determination of such contes� unl� ess in the reasona��e judc,-mer_t v e £iortqaqee the w?th- holdincr of payment would expose the N?ort a ed Pro ert to oss or or eiture. I eman e , the Mortgagor agrees to pay directly to the Mortgagee (who shall hold the same in an interest bearinq account or accounts) , in addition to the � monthly ir,stalL*��nts due un�.er the Loan Agreement, monthly '� installments equal to 1/12 of such amount as is determined by the Mortgagee to be required for the purpose of accur.iulating a fund with which to pay, when due, taxes and assessments and si.�-nilar charges on the Mortgaged Property. � ' Section 1.02. I;iens. Except for I.iens and encumbrances listed on Ex i�bit A hereto or consented to � in writing by the Pdortgaqee, the Mortgagor will keep the Mortgaged Property and all additions , modifications im rove- ments and rep�acem�nts ereto free fro� all liens and ' • encur.tbrances of every nature heretofore or hereafter arising and upon written demand of the Mortgagee, the Mortgagor will pay and procure the release of any such lien or encumbrance provided tha� if the Nlortgaaor �hall first notify the Mortqaqee of its intention so to do, it may in qood faith contest anv � liens filed or estabiished, and in such event nay permit the . items con�ested to remair� zndischarged and unsatisfied durinq the period of such contest and any a �P_ eal. therefrom, unl�ss the Mortgagee shall notifY tne Mortqagor that, in its � opinion, bv nonpayment of any such items the Pro�ect or any part thereof will be subject to loss or forfeitu e in which event the Mort a or sh.all promptly pa all such unpaid items �nd cause them to be satisfled and disc arged or obtain a release of the lien as provided by Section 514 .10 Minnesota � Statutes. . _3_ .. . , . . � __ _ ..__.._._,,.,, R Section 1.03. Care of Pro�e�. The Mortgagor will take good care of the Mortgaged Property, and will maintain the same in good repair and condition, ordinary depreciation excepted, and will commit or permit no waste � and will not construct any new buildings, structures or � � other improvements on the Land nor add to or alter the design � or structural character of any building, structure or other � - 3mprovement now or hereafter erected upon the Land withvut the prior written consent of the Mortgagee and will not � remove or permit removal of any buildings , structures or other improvements or fixtures of any kind froin the Land nor - . do any act that would impair or lessen the value of the . Mortgaged Property. The Mortgagor will promptly comply with all present and future laws , ordinances, rules and regulati.ons of any governmental authority affecting the Mortgaged Property provided that Nlortqagor shall have the riqht in good faith . and at its own expense to contest any such law, ordinance, • rule or requlation, and to withhold com�liance therewith pending a"determination of such contest, unless in the_ � reasonable judqment of the biortqaqee , such withholdinct of compliance woul.d expose the mortqaqed property to loss or forfeiture. � Section 1.04. Right of the Mortgagee to Enter. The Mortgagor will permit the blortgagee and its Agents to enter and to authorize others to enter upon any or aIl of the Mortgaged Property, at any reasonable time and from time to time, to inspec� tne same, to perform or obszrve any covenants, conditions, or terms which the Mortgagor shall � fail to perior:r:, m?et or comply with, or for any other purpose in connection with the protection or preservation of the Mortgagee' s security, without thereby becvming liable to the Mortgagor or any person in possession under the Mortgagor. . Section 1.05. Subro ac� tion. If the Mortgagee pays any prior lien from the proceeds of the Note secured by this Mortgage, it shall be subrogated to the rights of the holder of such prior lien as fully as if such lien had been assigned to tne Mortgagee. Section 1.06. Right of the Mortgagee to Perforrn. If the Mortgagor fails to pay all and singular any taxes, assessments or other similar charges heretofore or here- after assessed against the Mortgaged Property or fails to . . obtain the release of any lien or encumbrance (other than those listed in Exhibit A hereto or otherwise consented to by the Mortgagee) of any nature heretofore or hereafter arising upon the Mortgaged Property or fails to perform any other covenants and agreements contained in this _e�_ _ � __ ____._. t , _ -�► �: ` Mortgage or if any action or proceeding is commenced which �`"" � adversely affects or questions the title to or possession �� of the Mortgaged Property or the interest of the Mortgagor � or Mortgagee therein, then the Mortgagee, at the Mortgagee's � � option, with notice to the Mortgagor, may perform such � .� � covenants and agreements, investigate and defend against = � such action or proceeding, and take such other action as � � = the Mortgagee reasonably deems necessary to protect the � - - � � Mortgagee's interest. Any amounts disbursed by the Mortgagee _ . pursuant to this Section, including court costs and expenses and attorney's fees, with interest thereon, shall become . additional indebtedness of the Mortgagor and shall be secured by this Mortgage. Such amount shall be payable - upon notice from the Mortgagee to the Mortgagor requesting payment thereof, and shall bear interest from the date of disbursement at the rate of 7 1/4o per annum. Nothing " contained in this paragraph shaZl require the Mortgagee to incur any expense or to do any act hereunder. Section 1.07. Limited Assumption. �he Mortgagor shall not sell, assign, lease, convey or mortgage the legal or eguitable title or both legal and equitable title to all or any portion of the Mortgaged Property without the written consent of the Mertgagee provided that nothinq contained � herzin is intended to prevent the Mortqacror from sub-leasincr e Project hous?r.g units . So long as the Note is outstand- ing, no sale, assig.,�2riti lease, conveyance or mortgag� shall be made which impairs the validity of the Note or the exemption of the interest payable thereon from federal income taxation. Section 1.08 . Disbursing A3reement and Loan Agreement. The Mortgagor shall promptly and faithfully . observe a].1 of the terms and provisions of that certain Disbursing Agree�ent of even date, be��veen the HRA, Mortgagor and Mortgagee, and Loan Agreement ot even date, between the Mortgagor and the HRA, binding upon it and will no� perniit any Event of Default (as defined therein) to occur thereunder. _ Section 1.09. Miscellaneous Rights of the . . Mortgagee. The P�ortgagee may at any time and from time to tirie, without notice, release any person liable for _ payment of any indebtedness secured hereby, extend the time or agree to alter the terms of payment of any of the i.ndebtedness, accept additional security of any kind, release any property securing the indebtedness, consent . to the making of any plat or map of the Land or the creation of any easement thereon or any covenants -5- , . , .. � .._.�._._ :a.,_ restricting use or occupancy thereof, or alter or amend the " terms of this Mortgage in any way. No such release, modi- fication, addition or change shall affect the liability of any person other than the person so released for payment of any indebtedness secured hereby, nor affect the priority and . first lien status of this Mortgage� upon any property not released. � . . -, Section 1.10. Assignment of Rents. Mortgagor - . hereby assigns all rents and profits due or to=become due whether before or after':foreclosure or during any rederciption • period after sheriff' s foreclosure sale and Mortgagor hereby , further agrees that Mortgagee shall have the power irrevocably to manage, control and lease the mortgaged premises. Upon . the occurrence of an Event of.:Default hereunder and without regard to waste, adequacy of the security, or solvency of the Mortgagor, P�Iortgagee may, at its option, either: � � � (a) Apply to the Minnesota District Court � for the County wherein the property mortgaged hereunder is locateci for the appointment of a receiver under Minnesota Statutes Chapter 559 .17, it being understood and agreed that Mortgagee ' shall be entitled to the appointment or a re- _ . ceiver upon a showing that an Event of Default has occurred under the terms of this riortgage. . A receiver so appointed shall. apply all rents and profit� collected firs�t as provided in . Minnesota Statutes Section 576.01, subdivision + 2, and thereafter shall apnly the rents to the payment of principal and interest on any prior . mortgages (if any) , payment of prior liens or encumbrances (if any) and to payment of prin- � cipal. and interest on the Note secured hereby . and shall apply the _rents and profits before foreclosure, after forecZosure and for the entire redemption period; or (b) Collect all rents and profits from the occupiers of the mortgaged premises upon . the �_ filing . by the Mortgagee, in the office of the � County Recorder (or the office of the Registrar of Titles in the case of registered property} of a notice of default in the terms and conditions of this Mortgage, and the service of said notice of default upon the occupiers of the mortgaged premises . Mortgagee shall first:apply all rents and profits so collected in the manner provided in Minnesota Statutes Section 576 . 01, subdivision 2, and thereafter may apply the rent to the -6- . , . ..._._. ___...�...._,.___.,, � � payment of principal and interest on prior mortgages (if any) , payment of prior liens or encumbrances (if any) , and payment of principal and interest on the Note secured hereby. , • Mortgagee may apply the rents and profits before foreclosure, after foreclosure and for the � entire redemption period from any foreclosure - � :��_ and for the entire redemption period from any . foreclosure sale. In the event Mortgagee shall ' � exercise its rights under this subparagraph 2, ' it shall not be deemed to be a mortgagee-in- possession of the mortgaged premises. � The expense (including any receiver's fees, attorney' s fees, costs and agent' s compensation) incurred pursuant to the powers herein contained shall be secured hereby, shall be pa�able by the Mortgagor upon demand and shall bear interest from the date incurred at the rate of 7 1/4$ per annum. The Mortgagee shall not be liable to account to the Mortgagor or any commercially reasonable action taken pezrsuant hereto other than to account for any rents actually received by the Mortgagee. Sectioz 1.11. Covenarit With Res�ect to Secur'ity ��- Deposits and Statuto�r Obligations of Lessor. Mortgagor. will hold and appl�� enant s subtenant' s security deposits, if ar�y, as required by Minnesota Statutes Section 504. 20 , and will keep the covenants of a Lessor specified • pursuant to riinr.esota Statutes Section 504.18. --7_ ., . , . � .__�._ ._.s.,,, ' ARTICLE II � �E�'�" ' INSURANCE, CONDEMNATION, USE OF PROCEEDS :.� . Section 2.OI. Insurarice. The Mortgagor will ' �. keep the buildings, structures , fixtures and other improve- �� ments now existing or hereafter erected on the Land insured against loss by fire, vandalism and malicious mischief, � . perils of extended coverage, and such other hazards, casu- alties and contingencies as may be reasonab].y specified � by Mortgagee. All insurance shall be carried in companies � approved by the Mortgagee and the policies and renewals thereof shall (iJ contain a waiver of defense based on co- insurance, {ii) be constantly assigned and pledged to and held by the Mortgagee as additional security for the indebt- edness secured by this Mortgage and (iii� have attached thereto loss-payable clauses in favor of and in form ac- ceptable to the Mortgagee. In default thereof, the Mortgagee � may effect such insurance and the amount paid therefor shall � become i.mmediately due and payable with interest at the rate of 7 1/4$ per annum and shall be secured by this Mortgage. In event of loss the Mortgagor will give immediate notice by mail to the Mortgagee, who may make proof of loss if not made promptly by the Mortgagor. The Mortgagor sha11 have the . .ri�ht- �o settle ar.d compromise on a reasonable basis all c�aims on such policies andl�� ach insurance company concerned �Thall make payment for any �uch loss directly to the Mortgagee instead o� to tY:e Mortgagor and the Mortgagee jointly. In event of forecZosure of this Mortgage , all right, title and interest of the Mortgagor in and to any insurance policies then in force shall pass to the purchaser at the foreclosure sale.. Section 2.02. Condemnation. If all or any part of the Mortgaged Property is damaged, taken, or acquired, either temporarily or permanently, in any condemnation proceeding, or by exercise of the right of eminent domain, the amnunt of any award or other payment for such taking, acquisition or dar.zages made in consideration thereof sha11 be paid to Mortgagor who shall have the ri ht on a reason- � � � . a e asis to sett e and comprise all claims in such procee ings an o co ec an receive ana give receipts _ t ere=ore �rovide t at it s a eep Mortgagor a vise as the m�tter proceeds and shall give reasonable notice ta the Mortgagor oz any proposed settlement or compromise. Section 2. 03. Mortgagor to Repair, Replace , � - . Rebuild �or Restore. If any principal amount of the Note -8- . . , . _ ._ . _.�.,.�_ . T-•� � is outstanding when all or any part of the Mortgaged Property is taken by eminent domain, or destroyed or damaged, unless the Mortgagor exercises its right to prepay all or a portion of the amounts due under the Loan Agreement pursuant to _ Section 2.04 hereof: � - � (1) The Mortgagor shall proceed promptly, subject to . �.'� the provisions of subsection (2) , to repZace, repair, --- . rebuild and restore the Mortgaged Property to substantially � - the same condition as existed before the taking or event - . causing the damage or destruction, with such changes, � . alterations and modifications (including substitution or addition of other property) as may be desired by the t�ortgagor, . and approved by the Mortgagee, and will be suitable for continued operation of the Mortgaged Property for the business purposes of the Niortgagor in activity that qualifies under _ Chapter 474 , Minnesota Statutes as amended. (2) Al1 proceeds of any condemnation award or in- surance claim shall be paid directly to the Mortgagee. Subject to the option of Section 2.04 hereof, the Mortgagee shall apply the proceeds, less such sum, if any, required for payment of all expenses incurred in collecting the same, � ("Net Proceeds") , to payment of the costs of repair, replace- - ment, rebuilding or restoration of the Mortgaged Property upon compliance with such construction and disbursement terms as the Mortgage� may deem reasonably riecessary, including, • deposit with �he P-lortgagee of such funds of the i�lortgagor as , may be reguired to insure payment of all costs of rebui.lding and restoration. If such deposit is not made when requested by the Mortgagee, or if any other Event of Defaul.t should occur whi].e the Mortgagee is retaining the Net Proceeds , the Diortgagee, on b�half of the HRA, may apply said N�t Proceeds on the indebtedness of the Mortgagor under the Loan Agreement and the indebtedness of the HRA under the Note. Any balance af Net Proceeds re*naining after payment of all costs of . any repair, rebuilding, replacement or restoration of the Mortgaged Property shall be applied against the unpaid balance of the Note. (3) The riortgagor shall not, by reason of the payment � . of any costs of repair, rebuilding, replacement or restoration, be entitled to any reimbursemsnt from the HRA or any abatement or diminution of the amounts payable under Article 3 of the Loan Agreement. Section 2.04 . Use of Proceeds to Prepay Loan and Note. Tn the event t e rlortgagor does not elect to -9- . . rebuild and restore the Mortgaged Property pursuant to Section 2. 03, the Mortgagor may elect to apply the Net . Proceeds of any insurance or condemnation award without penalty against the outstanding loan balance due under the Loan Agreement, which prepayment shall be applied by the Mortgagee against the outstanding principal balance of the Note. Any excess remaining after such application shall be � returned t� the Mortgagor. -10- � , . • � � . , -___ _---,. K ARTICLE III DEFAULT � ' � . Section 3.01. Event of Default Defined.� Each �� of the following occurrences shall constitute an Event of � . Default hereunder: �- � �-�`•• . _ (1) The Mortgagor shall fail to perforr.l or observe ' any of the covenants contained in this Mortgage; � ; (2) The Mortgagor or HRA shall fail to pay when due . the principal sum of the Note or any interest thereon or any installment thereof or shall fail to pay when due any subsequent loan or advance made by the Mortgage hereunder or the interest thereon or shall fail to perforrn any of ' the other covenants or agreements of the Mortgagor or the . HRA in the Note; � (3) An Event of Default (as that term is defined . therein) shall occur and remain uncured under the Loan Agreement; or (4) Any representation or warranty made by the -- Mortgagor in this Mortgage, the Disbursing Agreement or in the Loan Aareement is untrue or mis].eading in any material respect, or any statement, certificate or report furnished herQur_der or under the Disbursing Agreement or Loan Agreement b� or on behalf of the Mortgagor is untrue ' or misleading in any material respect on the date as of which the facts set forth are stated or certified. Section 3.02. Remedies. Upon the occurrence of an Event of Default or at any time thereafter until such • Event of Default is cured to the satisfaction of the Mortgagee, the Mortgagee may, at its option, exercise any and all of �che following rights and remedies (and ' any other rights and remedies available to it including, without li,-nitation, the rights and remedies provided to the HRA under Section 6.02 of the Loan Agreement) : : (1) The Mortgagee may, without notice to the Mortgagor or HRA, declare immediately due and payable all indebtedness � secured by this Mortgage, the same shall thereupon be immediately due and payable (subject to the limited liability of the IiRA on the Note as set forth therein) ; and (2) The Mortgagee may foreclose this Mortgage by action or advertisement, and the Mortgagor hereby -11- t , . � _ � .�_,_� ` authorizes the Mortgagee to do so, power being herein expressly granted to sell the Mortgaged Property at public � � auction without any prior hearing or notice thereof and to convey the same to the purchaser, in fee simple, pursuant - - to the statutes of Minnesota in such case made and provided • and, out of the proceeds arising from such sale, to pay all � • indebtedness secured hereby with interest, and all legal � � � costs and charges of such foreclosure and the maximum attorney' s fees permitted by law, which costs, charges �- and fees the Mortgagor herein agrees to pay. � � . � In the event of a sale under this Mortgage, whether by virtue of judicial proceedings or otherwise, the Mortgaged Property may, at the option of the Mortgagee, be sold as one parcel and as an entirety or in such parcels, manner and order as the Mortgagee .in its sole discretion . may elect. Section 3.03. Liability of Partners of Mortgagor. In the event of a default •under the terms of this Mortgage or the Loan Agreement, no general or limited partner of the Mortgagor shall have any personal liablity to pay any amount, the non-payment of which gave rise to such default, or payable - as a result of such default, and the Mortgagee and any holder of this mortgage agree to look solely to, and assert remedies only against, the Company and the mortgaged property and not taks ?niT action against an� general or Iimited partner of the ;iortgagor, except such action as may be necessary to subject the mortgaged property to the satis- ` faction of the indebtedness secured by this Mortgage, provided, howeyer, that nothing herein is intended ta affect the obliga�ion of any general par�r.er under any ' Guarantee between such partner and the Bank. � Section 3. 04. Waiver. MORTGAGOR UNDERSTANDS AND AGREES THAT I A "DEFAULT" (AS DEFINED IN SECTTON 2.01 CF THIS b10RTGAGE��AGREEi�ENT SHALL OCCUR, P�ORTGAGEE xAS THE RIGHT, INTER ALIA, TO FORECLOSE THIS MORTGAGE B� ADVERTISEr�NT PURSUAIVT TO MINNESOTA STATUTES, CHAPTER 580 AS HEREAFTER � AMENDED OR PURSUANT TO ANY SINIILAR OR REPLACEP•2ENT STATUTE � HEREAFTER ENACTED; THAT IF THE MORTGAGEE ELECTS TQ FORECLOSE � BY ADVERTISEM�NT, IT MAY CAUSE THE MORTGAGED PROPEP.TY, OR � ANY PART THEREOF, TO BE SOLD AT PUBLIC AUCTION: THAT NOTICE " � OF SUCH SALE MUST BE PUBLISHED FOR SIX WEEKS AND GIVEN � PERSONALLY TO THE PERSON IN POSSESSION OF THE MORTGAGED � PROPERTY AT LEAST FOUR WEEKS BEFORE THE SALE: THAT AFTER� SALE, THE MORTGAGOR WILL HAVE NOT LESS THRN 6 MONTHS BUT NO !� MORE THAN 12 MONTHS AS MORE FULLY PROVIDED IN SECTION 580 . 23 ;� MINNESOTA STATUTES TO REDEEM THE MORTGAGED PROPERTY SO SOLD �� BY PAYING THE SALE PRICE, AI�ID TAXES , ASSESSMENTS t1ND -12_ . � . _ �.__ INSURAiJCE PREMIUMS PAID BY THE PURCHASEP. AT SUCH SALE, AND .. ;�;;r.'� ' OTHER SUMS PERMITTED BY LAW, TOGETHER WITH INTEREST THEREON `� FROM THE DATE OF. SALE OR PAYMENT AT THE HIGHEST RATE PERMITTED -'� BY LAW. MORTGAGOR FURTHER UNDERSTANDS THAT IN TFiE EVENT OF � - � . SUCH DEFAULT THE NIORTGAGEE MAY TAKE POSSESSION OF THE � �� PERSONAL PROPERTY WHICH IS PART OF THE MORTGAGED PROPERTY AND DISPOSE OF THE SA1�IE BY SALE OR OTHERWISE IN ONE OR MORE PARCELS PROVIDED THAT AT LEAST TEN (10) DAYS ' PRIOR NOTICE OF SUCH DISPOSTION MUST BE GIVEN TO THE MORTGAGOR, ALL AS PROVIDED FOR BY THE MINNESOTA UNIFORM COrIMERCIAL CODE, AS � HEREAFTER AMENDED OR BY ANY SI�lILAR OR REPLACEMENT STATUTE � H�REAFTER ENACTED. . MORTGAGOR FURTHER UNDERSTANDS THAT LTNDER THE CON- STITUTION OF THE UNITED STATES IT HAS THE RIGHT TO NOTICE AND HEARING BEFORE THE MORTGAGED PROPERTY OR SAID PERSONAL PROPERTY MAY BE SOLD AND THAT THE PROCEDURE rOR FORECLOSURE OR BY ADVERTISErfENT DESCRIBED ABOVE DOES NOT INSURE THAT NOTICE WILL BE GIVEN TO THE MORTGAGOR AND NEIIHER SAZD PROCEDURE FOR rORECLOSURE BY ADVERTISEi�IENT NOR TfiE UNIFORM CO'4SMERCIAL CODE REQUIRES ANY HEARING OR OTHER JUDICIAL PROCEEDING. MORTGAGOR HEREBY RELINQUISHES , ��7AIVES AND GTVES - UP ITS CONSTITUTIONAL RIGHTS TO NQTZCE �'1?D HEARING BEFORE SP.LE OF TNE �10R^C?rED PROPERTY A1VD THE PEP.SONAL PROP�RTY A�.�1D EXPRESSLY CONSENTS �'�1D AGREES THAT THE MORTGAGED PROPERTY MAY BE FORECLOSED BY ADVERTISENIENT AND THAT THE PERS4NaL PROPERTY MAY BE DISPOSED OF PURSUP,NT TO THE LNIFORM � CO�r�SFRCIAL CODE, ALL AS DESCRIBED ABOVE. MORTGAGOR ACKNOWLEDGES THAT IT IS REPR�'SENTED BY . LEG.�I, COWi SEL; THAT BEFORE SIGNING THIS DOCUI�NT THTS ARTICLE THREE At�1D ITS C�:�ISTITUTIOVAL RIGHTS ti�TERE FULI�Y EXPLAINED BY SUCH COINSEL AND THAT IT UNDERSTANDS THE NATURE Al�ID EXTENT OF THE RIGHTS WAIVED HEREBY AND THE EFFECT OF SUCH WAIVER. -13- � . � � . . � _.,,� --�-,. -,;.,�,`; , ARTICLE IV � �t,� . `,a � `� MISCELLANEOUS � � _ Section 4.01. � Na Im�].ied Waiver.� Any delay by . the Mortgagee in exercising or any failure by the Mortgagee to exercise any right or remedy hereunder, or afforded by law, shall not be a waiver of or preclude the exercise of -. any right or remedy hereunder, whether on such occasion or any future occasion. � Section 4 .02 . Remedies Cumulative. Each remedy � of the Mortgagee is distinct an cumulative to each other right or remedy under this Mortgage or afforded by law and may be exercised concurrently or independently. Section 4.03. ' Sticcessors and Assigns . The � covenants. and agreements herein contained shall bind, and . the rights hereunder shall inure to, the respective suc- cessors and assigns of the P�ortgagor and the Mortgagee, . including among the Mortgagor' s assigns any purchasers or transferees of the Mortgaged Property. � Section 4. 04 . Notices . Any notice, request, -- demand or other conununication permitted or required here- under shall be in �vriting and shall be deerned duly given if deposited in the Un-ited Sta�es mails , first class postage prepaid and addressed as follows : If to the Mortgagor: Shepard Park Plaza � 790 South Cleveland Saint Paul, tdinnesota 55106 . n: Stuart Nolan - . If to the Mortgagee: The First National Bank of Saint Paul Fourth and Minnesota Streets Saint Paul, Minnesota 55101 Attn: - . � . . or at such other address as either party shall notify the " other of as aforesaid. Section 4 .05. Headings. The headings of the sections contained herei.n are for convenience only and are not to be construed to be a part of or limit or affect the terms hereof. -14- � � � Section 4.06. �Indemnity. The Mortgagor shall indemnify Mortgagee and save Mortgagee harmless from all " costs and expenses, including reasonable attorneys' fees, , -�_�,`� incurred by Mortgagee in any proceedings or disputes of � _�,,� any kind in which the Mortgagee is made a party, or appears, � . and� which affects the indebtedness secured hereby, this � • � � Mortgage, the interest created herein, or the Mortgaged �. Property. Proceedings and disputes shall include, but � sh�all not be limited to, exercise of the power of sale . provided for in Section 3.02 (2) , condernnation action � involving the land and any action to protect the security provided for herein. Any a.nounts paid by Mortgagee, for � which Mortgagee is entitled to indemnity, may, at Mortgagee' s option, be added to the indebtedness secured by this Mortgage. Section 4.07. Coritinuation of Filings. Mortgag� will execute all instruments includirig but not liinited to financing statements and continuation statements deented � necessary or advisable in the opinion of counsel for the Mortgagee for perfection of and continuance of the perfec- tion of the security interest of the Mortgagee in personal property constituting a part of the Mortgaged �Property for so long as the Note shall remain outstanding. Mortgagor shall also pay such additional sums as may be necessary to , reimburse the Mortgagee for the cost of tne appropriate fili:ngs and refilings, recordings and rerecordings , as may bz necessary to periect or continue the security interest � . of the Mortgagee as aforesaid. IN WITNESS F7HEREOF, the Mortgagor has caused this Mortgage to be executed in its name by its duly authorized partners as of the day and year first above written. SHEPARD PARK PLAZA, a limited partnership � General and Limited Partner General and Li��nited Partner General and Limited Partner General and Limited Partner (SEAL) --15- t . . . 1 - , ____ . _.__._.._- -,� , STATE OF MINNESOTA ) ) ss COUNTY OF RAMSEY ) � The foregoing instrument was acknowledged before .. me this day of � • • • • � ' ' • , 1977, by Stuart Fi. � . Nolan, Herbert R. Goldenberg, Ronald L. Harris and Sheldon - � Stewart all of whom are general and limited partners of Shepard Park Plaza, a limited partnership. Notary Public [NotariaZ Stamp] , _ . . . _ _ _ _._._. �� . , � • � . EXHIBIT A ��`� r � Legal Description :,,�� - r .. � . . ' . � •� f � . ... .. . . � , - - ......._..__,��.._._'.,_....s�,..__...._ � •� r � , EXHIBIT J CALCULATION OF TOTAL ACTUAL FINAL COST OF THE PROJECT ACTUAL COST OF THE PROJECT - $4r653 , 555. 00 Five percent (5�) of the estimated . . cost of the project; 232 , 678 . 00 TOTAL ACTUAL FINAL COST $4 , 886, 233 . 00 .� . . ' . ' • EXHIBIT K ��.�:�� THE AMERICAN INSTITUTE OF ARCHITECTS :,.k � �; �i ' � . , '�:_ ,�� ' � AIA Document A111 �� S�andarc� Forrrz of Agreement Bet�veer� � � Owner and Cor�firactor where the basis o/ payment is the COST Of THE WORK PLUS A fEE . THIS DOCUAffNT NAS 1�ti4POFTAn'T IfGAC CO��'SfQUENCfS; CONSUL7ATION W17H AN AT70RtJEY IS ffJCOURAGED lV1TH RESPEC7 70 175 COAfPCET10N OR MODIfICAT10N Use only �vith the /atest Edition o( AIA Document A201, General Conditions o/ (he Contrac� (or Conscruc(ion. This document has been approved and endorsed by The Associated General Contractors of America. ' AGREEMENT � made this Seventeenth day of October in the year of Nineteen Hundred and Seventy Seven ' � QETWEEN the Owner: S�p� pp� pp,RTNERS and the• Contractor: �pTSON CONSTRUCTION COMF'ANY 1 h e P ro j e c t: SI-IEPARD PARK PLAZA tl�c Architect: MILLER, HANSON, GIEST'ERBECK, BELL ARCHITECTS The O�vner and the Contractor agrees as set forth belo�v. � ' ,. AIA UOCU��4CNT /1111 • O\VNER•CONTRACTOR .�GREE.\tENT • JAXUARY 19ia EDITInN • nUC"� • 0 19ii • 1HC n.�1[hIC.�N II.STITUTE Uf Af:CHIT[CTS, 17)S NE�V 1'OR►; AYE`UE, �.�v., W�SHINGTON, D.C. ?0004 � _ . � . . ..--.. -w . ARTICLE 1 , THE CONTRACT DOCUMENTS ' The Contract Documents consist of this Agreement, Conditionc of the Contract (General, Supplementary and other Conditions}, Dra�vings, Specifications, all Addenda issued prioF to execution of this Agreement= and all Modifications issued subsequent thereto. These form the Contract, and all are as fully a part of the Contract as if attached to this Agreement or repeated herein. An enumeration of ihe Contract Documents appears in /lrticle 16. If anything in the General Conditions is inconsistent �vith this Agreement, the Agreement shall go�•ern. ' ARTICLE 2 ' THE WORK - � The Contractor shall perform all the V1�ork required by the Contract Documents for (Here insert the caption desuiptive o!the Work as used on other Contract Documents.) Shepard Park Plaza - a 101 unit apart�nent building - to be located at Shepar�d Road/Youngnan Avenue at Alton Street i.n St. Paul, Minnesota. � . Not including mechanical and electrical work (Divisions 15 and 16). � , ARTICLE 3 � 7HE CONTRACTOR'S DUTIES AND STATUS The Contractor accepts the relationship of trust and confidence established betH-een him and the Owner by this Agreement. He covenants �vith the Owner to (urnish his best skill and judgment and to cooperate with the Ar- chitect in furthering the interests of the O�vner. He agrees to furnish eNicient business administration and superintendence and to use his best eHorts to furnish at all times an adequate supply of �vorl:men and mate- • rials, and to perform the Work in the best way and in the most expeditious and economical manner consistent �vith the interests of the O�vner. � • ,. AIA DOCUh1ENT A11t • O\YNER•CONTRACTOR /�GFEEhtENT • �ANUARY 1974 ED�TION • AIA� • � '1974 2 Tt1E Ah1ERICnN I�STITUTE OF ARCFiITECTS, 1735 NEW YORK AVENUE, N.\Y., WASHINGTON, D.C. 20006 . � _ _ '._.,�, ARTICIE 4 TiME OF COMMENCEMENT AND COMPLETION , ' The \No�k to be performed under this Contract shall be commenced within 14 days of notiee to proceed ' � and completed 12 months after start of construction (Mere insert any special provisions lor liquid�ted damages relating lo lailurc lo complete on Gme.l , ARTICLE 5 . COST OF 7HE WORK AND GUARANTEED h1AXiMUM COST , 5.1 The O�vner agrees to reimburse the Contractor for the Cost of the Work as defined in Article 8. Such reimbursement shall be in addition to the Contractor's fee stipulated in Article 6. 5.2 The maximum cost to the Owner, includin� the Cost of the �'Vork and the Contractor's Fee, is guaranteed not to exceed the sum of dollars ($ 2�6gg,200.00 1; such Guaranteed Maximum C�st shall be increased , or decreased for Changes in the Work as provided in Article 7. (Hc�e insert�ny piovision for dislribulion o!any savings. Dclele Paiograph 5.2 if there is no Guaranteed Na�imum Cost.) Distribution of savings, if any., shall be' 60 o to the owner and 40 0 to the contractor. . ' ,. AIA DOCUAIENT Alll • O\VNER-CONTRACTOR AGRE[MENT • J�IUARY 19;4 EDITIO\ • AIAJ • O 197< 3 THE AMERICAN IVSTITUTE OF AFCHITCCTS, 1735 tJEW YORK AVE�UE, N.\N., 1Y�Sh11�GTON, p.C. 2000G � , _ , . ___,..._ _-� . ARTICLE 6 � :T<,;.`� CONTRACTOR'S FEE � � 6.1 In consideratio� of the performance of the Contract, the Owner agrees to pay the Contractor in current funds as co:npensation for his services a Contractor's fee as foilows: . • $125,000.00 , 6.2 For Changes in the Work, the Contracto�'s Fee shall be adjusted as follows: � � � , � 15� 0 � P on the cost of the change. , 6.3 The Contractor shall be paid 71.iT1ety , per cent ( 9Q %) of the proportionate amount of his Fee with each prosress aayment,.and the balance of his Fee shall be paid at the time of final payment. ARTICLE 7 CHANGES IN THE WORK � . � 7.1 The Owner may make Chanbes in the Work in accordance with Article 12 0� the General Conditions insofar as such Artide is consistent with this Agreement. The Contractor sliaU be reimbursed for Changes in the Work on the basis of Cost of the Work as defined in Article 8. , 7.2 The Contractor's Fee (or Chan�;es in the VVork shall be as set forth in Paragraph 6.2, or in the absence of � specific provisions therein, shall b� adjusted by negotiation on the basis of the Fee established for the original Work. ARTICLE 8 COSTS TO BE RE1Mf3URSED 8.1 The term Cost of the Work shall mean costs necess�rily incurred in the proper performance of the ��ork and paid by !he Contractor. Such costs shall be at rates not hi�her thin the standard paid in the locality of the �Vork except �vith prior consent of the O�vner, and sliall include the items set forth below in this Article 8. 8.1.1 VVages paid for labor in the direct employ of the Contractor in the performance of the Work under a�plicable collective bargainin� a�reements, or under i s�l�ry or waSe schedule a�reed upon by the Owner and Contractor, and including such welfare or othe� benefitc, ;f any. as may be payable with respect thereto. U.1.2 Salaries of Contractor's Persc�nnel �vhen stationed �t the field o(fice, in whate�•er capacity employed. Per- sonncl en�;aFed, at shops or on thc road, in expediting thc production or transportation of materials or equipment, shall be considcrcd as stationcd at thc ficld o((ice and thcir salarics paid for that portion o( their time spent on this Work. - AIA DOCUMEN7 A111 • OWNER•CO�TRACTOR AGREE�tE�T`• ).4Nll.�RY �91� EDIT!nN • AIA'� • 7 1974 T H E n��E R I C�N I N S T I T U 7 E O f �R C Ii I 1 E C T S. 1 7 3 5 N C�V Y O R K A V E N U E, N.W., W�S f U n G T O V, U.C. 2 0 0 0 6 4 � 8.1.3 Cost of contributions, assessments or taxes for such items as unemployment compensation and social �e- curity, insofar as such cost is based on �vages, salaries, or other remuneration paid to employees of the Con• tractor and included in the Cost of the Work under Subparagr�phs 8.1.1 and 8.1.2. 8.1.4 The proportion of reisonabfe transportation, traveling and hotel expenses of the Contractor or of hic ' officers or employees incurred in discharge of duties connected with the Work. 8.1.5 Cost of all materials, supplies and equipment incorporated in the Work, includinG costs of transportation thereof. 8.1.6 Paymenls made by the Contractor to Subcontractors for Work performed pursuant to subcontracts under this Agreement. 8.1.7 Cost, including transportation and maintenance, of all materials, supplies, equipment, temporary facifi- ties and hand tools not o�vned by the workmen, �.•hich are consumed in the performance of the Work, and cost less salvage value on such items used but not consumed which remain the property of the Contractor. 8.1.8 Rental charges of all necessary machinery and equipment, exclusive of hand tools, used at the site of the _ Work, �vhether rented from the Contractor or others. including inst�llation, minor repairs and replacements, dis- mantling, removal, transportation arid delivery costs thereof, at rental charges consistent �vith those prevailing in the area. �� 8.t.9 Cost of premiums for all bonds and insurance which the Contractor is required by the CoAtract Documents to purchase and maintain. 8.1.10 Sales, use or similar taxes related to the Work and for �vhich the Contractor is liable imposed by am• governmental authority. 8.1.11 Permit fees, ro��alties, damages for infringement of patents and costs of defending suits therefor, and deposits lost for causes other than the Contractor's negligence. 8.1.�2 Losses and expenses, not compensated by insurance or otherwise, sustained by the Contractor in connection with the Work, provided they have resulted from' causes other than the fault or neglect of the Contractor. Such losses shall include settlements made �vith the �vritten consent and approval of the O��ner. �o sucf� losses and expenses shall be included in the Cost of the �ti'ork for the purpose of determining the Contractor's Fee. If, ho��•- ever, such loss requires reconstruction and the Conlractor is placed in charge thereof, he shall be paid for his services a Fee proportionatc Io that stated in Paragraph 6.1. 8.1.13 Minor expenses such as telegrams, long distance telephone calls, telephone sen�ice at the site, express- age, and similar petry cash items in connection �vith the �Nork. 8.�.14 Cost of removal of all debris. � 8.�.15 Costs incurred due to an emergency atfecting the safety of persons and property. . 8.1.16 Other costs incurred in the per(ormance of the VVork if and to the extent appro�•ed in advance in writing , by the Owner. AIA DOCUMENT A711 • O�vnER-CONTRACTOR AGREEh1E\T • ��UARY '19'4 EDITIO� • AIArJ • O 1974 THE AMEI:ICAN INSTITUTE OF nRCHITECTS, 1735 NEW YOFK n\E�UE, n.W., WASHIf:GTON, D.C. 20006 S � i . . . . � � .. ., .. ._..-7� ARTICLE 9 , COSTS NOT TO BE REIMBURSED � 9.1 The term Cost of the Work shall not include any of the items set forth below in this Article 9. 9.1.1 Salaries or other compensation of the Contractor's Personnel at the Contractor's principal office and branch offices. • 9.1.2 Expenses of the Contractor's Principal and Branch Offices other than the Field Office. 9.1.3 Any part of the Contractor's capital expenses, including interest on the Contractor's capital employed for the Work. 9.1.4 Overhead or general expenses of any kind, except as may be expressly included in Article 8. 9.1.5 Costs due •to the negligence of the Contractor, any Subcontractor, anyone directly or indirectfy employed by any of them, or for�vhose acts any of tnem may be liahle, including but not limited to the correction of detective _ or nonconforming Work, disposal of materials and equipment wrongly supplicd, or making good any damage to property. ' .. 9.1.6 The cost of any item not specifically and expressly included in the items described in Article 8. 9.�.7 Costs in excess of the Guaranteed Maximum Cost, if any, as set forth in Article S and adjusted pursuant to . Artide 7. ARTICLE 10 � DISCOUNTS, REBATES AND REFUNDS All cash discounts shall accrue to the Contractor unless the O�vner deposits funds with the Contractor �vith which to make payments, in �vhich case the cash discounts shall accrue to the Owner. All trade discounts, ' rebates and refunds, and all returns from sale of surplus materials and equipment shall accrue to the Owner, and the Contractor shall make provisions so that they can be secured. (Here intut any provisions rclaling to deposits by the Owne� to permi( the Contractor to obtain cash discoun(s.J AR71ClE 11 SUBCONTRACTS 11.1 All portions of the Work that the Contr.3ctor's organization has not been accustamed to perform shall be performed under subcontracts. The Contractor shall. request bids from subcontractors and shall deliver such bids to the Architect. The Architect will then determine, with the advice of �he Contractor and subject to the approval of the Owner, which bids will be accepted. 11.2 All Subcontracts shall conform to the requirements of Paragraph 5.3 of the General Conditions. Subcon- tracts a�varded on the basis of the cost of s�ch work plus a fee shall also be subject to the pFovisions of this Agreement insofar as applicable. • ' ,� AIA DOCUMENT A/11 • OWNER•CONT�ACTOR AGRCEtitENT • �nnUnRV i9:a EDI7iOv • .11A� • p 1973 6 THE AhtERIC�N INSTITUTE OF /1RCFiITECTS, 1:35 NEW YpRK NVE�UE, N.�N., �YASHIt`GTO�I, D.C. 20006 ' ' , » ARTICLE 12 �� ;,`� . ACCOUN7tNG RECORDS � "'"� The Contractor shall check all materials, equipment and labor entering into the Work and shall keep_such full and detailed accounts as may be necessary for proper financial mana�ement under this Agreement,'and the system shall be satisfactory to the Owner. The O�vner shali be afforded access to all the•Contractor's records, books, correspondence, instructions, dra�vings, receipts, vouchers, memoranda and similar data relating to this Contract, and the Contractor shall preserve all such records for a period of three years after the final payment. _ . ARTICLE 13 _ . APPLICATIONS FOR PAYMENT The Contractor shall, at least ten days before each progress payment falls due, deliver to the Architect a state- ment, sworn to if required, sho�ving in complete detail all moneys paid out or costs incurred by him on account of the Cost of .the Work during the previous month for which he is to be reimbursed under .�rticle 5 and ihe amount of the Contractor's Fee due as pro��ided in Article 6, together with payrolls for all labor and all receipted bills for which payment has been received. , ARTICLE 14 � PAYMENTS TO THE CONTRACTOR 14.1 The Architect will revie�v the Contractor's statement of moneys due as provided in Article �3 and will promptly issue a Certificate for Payment to the O�vner for such amount as he approves. �vhich Certificate shall be payable on or about the flfteeIlth day of the month. �4.2 Final payment, constituting the unpaid balance of the Cost of the Work and of the Contractor's Fee, shall be paid by the Owner to the Contractor when the ��ork has been completed, the Contract fully periormed and a final Certificate for Payment has been issued b�� the Architect. Final payment shall be due days a(ter the date of issuance of the final Certificate for Payment. � \ ARTICLE 15 � TERMINATION OF CONTRACT 15.1 The Contract may be terminated by the Contractor as provided in Article 14 of the General Conditions. 15.2 If•the Owner terminates the Contract as pro��ided in Article 14 of the General Conditions, he shall reim- , burce the Contractor for any un�aid Cost of the Work due him under Article 5, plus (1) the unpaid balance of the Fee computed upon the Cost of the Work to the date of termination at the rate of the percentage named in Article G, or (2) if the Contrlctor's Fee be stated as a fixed sum, such an amount as �vill increase the payments on account of his Fee to a sum which bears the same ratio to the said (ixed sum as the Cost of the VVork at the time of tcrmination bears to the adjusled Guaranteed Maximum Cost, if any, otherwise to a reasonable esti- mated Coct of the Work when completed. The Owner shall also pay to the Contractor fair compensation, either by purchase or rental at the election of the O��ner, for any equinment re;ained. In case of such termination of the Contrict the O�vner shall further assume and become liable (or ohli�;�tions, commitments and unsettled claims that the Contr�ctor has previously undertaken or incurred in �ood f�ith in connection with said \Vork. The Contractor shall, �s a condition of receivin�; the payments referred to in this Article 15, execute and deli�er all such papers �nd take all such steps, includin�; the Ir�;�l assi�;nment of his contractual right�,as the O��ner may require for the purpose of fully vcstin�; in him thc rights ind bcncfits of thc Contractor undcr such obli�;ations or commitments. � • ' ,� AtA DOCUM[NT A1t1 • O\VNCR-CC)�:TRACTOF AGREE.�tEVT • J:��U�FI' 197A EnlTln� • A��"� • O 1974 TNE A�IERICAN INSTITUTE OF ARCNITECTS, 1735 NE�V I�OhK AVENUE, N.�V., ��'ASHINGTON, D.C. 20006 7 � • + , _.._. _ ..,� ARTICLE 16 MISCELLANEOUS PROVISIONS ' ' 16.1 Terms used in this Agreement which are defined in the Conditions of the Contract shall have the meani�gs ,,,� designated in those Conditions. 16.2 The Contract Documents, which constitute the entire agreement between the Owner and the Contractor, are listed in Article 1 and, except for Modifications issued after execution of this Agreement, are enumerated as follows: . (List below the Agreem�nt, Condirions o! Ihe Conlracf. IGeneral, Supplementary, nth��Condlrione).Ora�vings,Speci/ica�ions,�ddenda and accepted AI/er• nates,fho��ing page or sheet numbers in sll uses�nd dafes �.•ne�e a�pl�oble.l Plans #'s A1 - A19, S1 - S7 ' - Specifications Divisions 1 - 14 , � Details and Schedules � Addendi.uns l, 2, � 3 " Addendum #4 with drawing revisions � All as signed by the contractor. This Agrcement executed the day and year first written above. OWNER CONTRACTOR • �.k..t.a—r... `-o�n�_..� �+ Q ��.....-� � G'—�.•, . AIA DOCUMENT A711 • OWNER-CUNTRACTOR AGREEMENT • �ANU/�RY 197d LDITION 'A1i18 • s'� 1974 TNE A�tEftICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., N'nSHINGTON, D.C. 20006 8 � : � • _ .._-...��., - _.� , � � , , EXHIBIT L-1 �,;�:�� THE AMERICAN lNSTITUTE OF ARCHITECTS :�,- � , AlA Document A111 �tandard Forr� of Agreernent �etween � Own�r and Contractor where the basis of payment is the COST OF THE WORK PLUS A FEE . 7HI5 DOCUMENT HAS IMPORTAN7 LfGAL CONSfQUENCES;CONSU[TATION 4V17H RN AT70RNEY IS fNCOURAGED W17H RESPECT TO ITS COh1PLfT10N OR MODlfICA7lON Use only +vith the latest Edition o! AIA Document A201, General Conditions of tAe Contract for Construc(ion. This document has been approved and endorsed by The Associated General Contractors of America. AGREEMENT made this 17th day of �tober in the year of Nineteen Hundred and Seventy-Seven B ET W E E N t h e O w n e r: SI-�PARD PARK PARTNERSH I P ; . and the Contractor: H�Nr ELECTRIC COP.PORATION the Project: Shepard Park Plaza the Architect: Miller I-ianson ti9esterbrook �, Bell Associates The O�vner and the Contractor a�rees as set forth below. AIA DOCUMFNT A111 • OWNER•CONTRnCTOR nCREEM[NT • I�NUnRY 1974 EDITION • AI/1l9 • O �974 7tlE nn�ERiCnr� INSTI7UTE OF nRCHI'fECTS, 17J5 NEW YORK nVENUE, N.W., WnSHINGTON, 0.C. 20006 � _ ___.. _.__ --��.. ._.___------•—- ----- --- -.— _ � _ , _ _ _,,.�.,.,,.,,,.___.w,�, ' ', , . ARTICLE 1 THE CONTRACT DOCUMENTS The Contract Documents consist of this Agreement, Conditions of the Contract (General, Suppiementary and other Conditions), Drawings, Specifications, all Addenda issued prior to execution of this Agreement and all Modifications issued subsequent thereto. These form the Contract, and all are as fully a part of the Contract as if attached to this Agreement or repeated herein. An enumeration of the Contract Documents appears in Article 16. If anything in the General Conditions is inconsistent with this Agreement, the Agreement shall govern. . ARTICLE 2 THE WORK The Coniractor shall perform all the Work required by the Contract Documents for Electrical (lie�e insert the caption desaiptive o(the Work as used on other Contract DocumentsJ Construction as per plans and specifications and addenda except as modified: 1. Biii Bond not included 2. Change allowance apartment fixtures from. $20.00 to $12.00 3. All fixtures as equal 4. Deduct alternate #7 � S. Replace emerger.cy fixture as per Hunt Electric design , ARTICLE 3 THE CONTRACTOR'S DUTIES AND STATUS 7he Contractor accepts the relationship of trust and confidence established between him and the Owner by this Agreement. Ne covenants with the Owner to furnish his best skill and judgment and to cooperate �vith the Ar- chitect in furthering the interests of the Owner. Ne agrees to furnish efficient business administration and • superintendence and to use his best eiiorts to furnish at all times an adequate supply of workmen and mate- rials, and to perform the Work in ihe best way and in the most expeditious and economical manner consistent with the interests of the Owner. i 1 . � ' I AU UOCUMFNT Alll • OWNCR-CONTRACTOR /�GREEM[NT • )ANUARY 1974 EDITIQN • AIAO • m 1974 THE AMEttICAN INSTITUTE OF /.KCHITECTS, �735 NEW YORK AVENUE, N.W., WnSNINGTON, D.C. 2000G Z \ ARTICLE 4 : ;,:;'t�r � TIME OF COMMENCEMENT AND COMPLETION � :; ,«*� The Work to be performed under this Contract shali be commenced and completed � (Here Jnsert any special p�ovisions/or liquidated damages relating to laifure to complete on time.) ARTICLE 5 COST OF THE WORK AND GUARANTEED MAXIMUM COST 5.1 The Owner agrees to reimburse the Contractor for the Cost of the Work as defined in Article 8. Such reimbursement shall be in addition to the Contractor's Fee stipulated in Article 6. 5.2 Tf�e maximum cost to the O�vner, includin the Cost of the Work and Lh�-�ontractor's Fee, is guaranteed not to exceed the sum of Tf-IREE I-iIJ��1DRED NI�-FIVE THOUSAND DOLLA� doliars ($ 395,000.00 ); such Guaranteed Maximum Cost shall be increased or decreased for Changes in the Work as provided in Articie 7. fHere insert any provision lo�distribution o!any savings. Delete Paragraph 5.2 il there is no Guaranteed Maximum Cost.1 i AIA DOCUMENT Altl • OWNER•CONTRACTOR nGREEMENT • JANUARY 1974 EDITION • nIAOO • m 1974 THE AMERICAN INSTITUTE OF AftCtIITfCTS, 1735 NEW YORK AV[NUE, N.W., WASNINGTON, D.C. 20006 3 ' 1 � }� AR7ICLE 6 � CONTRACTOR'S FEE 6.1 In consideration of the performance of the Contract, the Owner agrees to pay the Contractor in current funds as compensation for his services a Contractor's fee as foilows: 90o monthly estimate till 50% of the project is completed and then 1000 of monthly estimates with final payment 30 days after completion. 6.2 For Changes in the Work, the Contractor's Fee shall be adjusted as follows: 10% fee as total mark up on all change orders 6.3 The Contractor shall be paid One hundred per cent ( 100 %) of the proportionate amount of his Fee with each progress payment, and the balance of his fee shall be paid at the time of final payment. ARTICLE 7 . CHANGES �N THE WORK 7.1 The Owner may rnake Changes in the Work in accordance with Article 12 of the General Conditions insofar as such Artide is consistent with this Abreement. The Contractor shall be reimbursed for Changes in the Work on the basis of Cost of the Work as defined in Article 8. 7.2 The Contractor's Fee for Changes in the Work shall be as set forth in Paragraph 6.2, or in the absence of specific provisions therein, shall be adjusted by negotiation on the basis of the Fee established for the original Work. ARTICLE 8 COSTS TO BE REIMBURSED 8.1 7he term Cost of the Work shall mean costs necessarily incurred in the proper performance of the Work and paid by the Contractor. Such costs shall be at rates not higher than the standard paid in the locality of the Work except with prior consent of the Owner, and shall include the items set forth below in this Artide 8. 8.1.1 Wages paid for labor in the direct employ of the Contractor in the performance of the Work under applicable collective bargaining agreements, or under a salary or wage schedule agreed upon by the Owner and Contractor, and induding such welfare or other benefits, if any, as may be payable with respect thereta 8.1.2 Salaries of Contractor's Personnel when stationed at the field office, in whatever capacity employed. Per- sonnel cngagcd, at shops or on the road, in expediting the production or transportation of materials or equipment, shall be considered as stationed at the field of(ice and their salaries paid for that portion of their time spent on this Work. AIA DOCUMENT A111 • OWNER-CONTR�CTOR AGREEMENT • JANUl�RY �974 FDITION • AIAO • m 1974 4 THE �MERICAN tNSTITUTE OF AN.CHIIECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 . . � .. .___. _. _ _ . ...t. 8.1.3 Cost of contributions, assessments or taxes for such items as unemployment compensation and social se- curity, insofar as such cost is based on wa�es, salaries, or other remuneration paid to employees of the Con- > •,,,"�" tractor and induded in the Cost of the Work undcr Subparagraphs 8.1.1 and d.1.2. :,,,� 8.1.4 The proportion of reasonable transportation, traveling and hotel expenses of the Contractor or of his oHicers or employees incurred in discharge of duties connected with the Work. 8.1.5 Cost of all materials, supplies and equipment incorporated in the Work, including costs of transportation thereof. 8.1.6 Payments made by the Contractor to Subcontractors for Work performed pursuant to subcontracts under this Agreement. 8.1.7 Cost, including transportation and maintenance, of all materials, supplies, equipment, temporary facili- ties and hand tQOls not owned by the workmen, which are consumed in the performance of the Work, and cost less salvage value on such items used but not consumed which remain the property of the Contractor. 8.1.8 Rental charges of a(I necessary machinery and equipment, exclusive of hand tools, used at the site of the Work, whether rented from the Contractor or others, including installation, minor repairs and replacements, dis- mantling, removal, transportation and delivery costs thereof, at rental charges consistent with those prevailing in the area. 8.1.9 Cost of premiums for all bonds and insurance which the Contractor is required by the Contract Documents to purchase and rnaintain. 8.1.10 Sales, use or similar taxes related to the Work and for which the Contractor is liable imposed by any govemmental authority. 8.7.11 Permit fees, royalties, damages for infringement of patents and costs of defending suits therefor, and deposits lost for causes other than the Contractor's negligence. 8.1.12 Losses and expenses, not compensated by insurance or otherwise, sustained by the Contractor in connection with the Work, provided they have resulted from causes other than the fauft or neglect of the Contractor. Such losses shall include settlements made with the written consent and approval of the Owner. No such losses and expenses shall be included in the Cost of the Work for the purpose of determinin� the Contractor's Fee. If, how- ever, such loss requires reconstruction and the .Contractor is placed in charge thereof, he shall be paid for his services a Fee proportionate to that stated in Paragraph 6.1. 8.1.�3 Minor expenses such as telegrams, long distance telephone calls, telephone service at the site, express- age, and similar petry cash items in connection with the Work. 8.1.14 Cost of removal of all debris. - 8.1.15 Costs incurred due to an emergency affecting the safety of persons and property. 8.1.16 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner. AIA DOCUMENT A111 • OWNER-CONTRACTOR AGREEh1ENT • JANU.4RY 1974 EDITION • AI,�O • � 1774 � THE AMEKICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK nVENUE, N.W., WASFIINGTON, D.C. 20006 5 , . � , _ .-_....�t ___,..,� ARTICLE 9 ' COSTS NOT TO BE REIMBURSED 9.1 The term Cost of the Work shalf not include any of the items set forth below in this Article 9. � 9.1.1 Salaries or other compensation of the Contractor's Personnel at the Contractor's principal office and branch oHices. � 9.1.2 Expenses of the Contractor's Principa) and Branch Offices other than the Field Office. 9.1.3 Any part of the Contractor's capital expenses, including interest on the Contractor's capital employed for the Work. 9.1.4 Overhead or general expenses of any kind, except as may be expressly included in Article 8. 9.1.5 Costs due to the negligence of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of lhem, or for whose acts any of them may be liable, including but not limited to the correction of defective or nonconforming Work, disposal of�materials and equipment wrongly supplied, or making good any damage to property. 9.1.6 The cost of any item not specifically and expressly included in the items described in Article 8. 9.1.7 Costs in excess of the Guaranteed Maximum Cost, if any, as set forth in Article 5 and adjusted pursuant to Article 7. ARTICLE �0 DISCOUNTS, REBATES AhD REFUNDS All cash discounts shall accrue to the Contractor unless the Owner deposits funds with the Contractor with , which to make payments, in which case the cash discounts shall accrue to the Owner. All trade discounts, rebates and refunds, and all returns from sale of surplus materials and equipment shall accrue to the Owner, and the Contractor shall make provisions so that they can be secured. (Here inse�t any p�ovisions relaling to deposits 6y the Owner to permil the Conlracto�to ob�ain cash discounts.) ARTICLE 17 SUBCONTRACTS 71.1 All portions of the Work that the Contractors organization has not been accustomed to perform shall be performed under subcontracts. The Contractor shall request bids from subcontractors and shall deliver such bids to the Architect. The Architect will then determine, with the advice of the Contractor and subject to the approval of the Owner, which bids will be accepted. 11.2 All Subcontracts shall conform to the requirements of Paragraph 53 of the General Conditions. Subcon- tracts awarded on the basis of the cost o( such work plus a fee shall also be subject to the provisions of this Agreement insofar as applicable. . . AIA DOCUMENT Altt • OWNER-CONTRACTOR AGREEMENT • JANU^RY 1974 EDITION • AIA� • � 1974 THE AMCRICAN INSTITUTE OF ARCHITECTS, �735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 6 � ' ' � ' � �� ARTICLE 12 � ACCOUNTING RECORDS ' The Contractor shall check all materials, equipment and labor entering into the Work and shall keep such full and detailed accounts as may be necessary for proper financial management under this Agreement, and the system shall be satisfactory to the Owner. The Owner shall be afforded access to all the Contractor's records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda and similar data relating to this Contract, and the Contractor shall preserve all such records for a period of three years after the final payment. ' ARTICLE 13 APPUCATIONS FOR PAYMENT The Contractor shall, at least ten days before each progress payment falls due, deliver to the Architect a state- ment, sworn to if required, showing in complete detail all moneys paid out or costs incurred by him on account of the Cost of the Work during the previous month for which he is to be reimbursed under Article 5 and the amount of the Contractor's Fee due as provided in Article 6, together with payrolls for all labor and all receipted bills for which payment has been received. ARTICLE 14 PAYMENTS TO THE CONTRACTOR 14.1 The Architect will review the Contractor's statement of moneys due as provided in Article 13 and will promptly issue a Certificate for payment to the Owner for such amount as he approves, which Certificate shall be payable on or about the 25th day of the month. 14.2 Final payment, constituting the unpaid balance of the Cost of the Work and of the Contractor's Fee, shall � be paid by the Owner to the Contractor when the Work has been completed, the Contract fully performed and a final Certificate for Payment has been issued by the Architect. Final payment shall be due days after the date of issuance of the final Certificate for Payment. ARTICLE 15 TERMINATION OF CONTRACT 15.1 The Contract may be terminated by the Contractor as provided in Article �4 of the General Conditions. 15.2 If the Owner terminates the Contract as provided in Article 14 of the General Conditions, he shall reim- burse the Contractor for any unpaid Cost of the Work due him under Article 5, plus (1) the unpaid balance of the Fee computed upon the Cost of ihe Work to the date of termination at the rate of the percentage named in Article 6, or (2) if the Contractor's Fee be stated as a fixed sum, such an amount as will increase the payments on account of his fee to a sum which bears the same ratio to the said fixed sum as the Cost of the Work at the time of termination bears. to the adjusted Guaranteed Maximum Cost, if any, otherwise to a reasonable esti- mated Cost of the Work when completed. The Owner shall also pay to the Contracto� fair compensation, either by purchase or rental at the election of the Owner, for any equipment retained. In case of such termination of the Contract the Owner shall further assume and become liable for obligations, commitments and unsettled claims that the Contractor has previously undertaken or incurred in good faith in connection with said Work. The Contractor shall, as a condition of receiving the payments referred to in this Article 15, execute and deliver all such papers and take all suct� steps, including the legal assignment of his contractual rigi�ts,as the Owner may require for the purpose . of fully vesting in him the rights and benefits of the Contractor under such obligations or commitments. AIA DOCUM[NT Alll • OWNER-CONTRACTOR ACREEMENT • JANUARY 197� EDITION • AIA� • 0 1974 ' TNE /�MERICAN INSTITUTE Of ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 . ' � , _.._...,_ - --.._..,�) ARTICLE 16 MISCELLANEOUS PROVISIONS . ��.�' ` 16.1 Terms used in this Agreement.which are defined in the Conditions of the Contract shall have the meanings ;.,.�k designated in those Conditions. 16.2 The Contract Documents, which constitute the entire agreement between the Owner and the Contractor, are listed in Article 1 and, except for Modifications issued after execution of this Agreement, are enumerated as follows: lLi�f below the Agreement, Condi�ions ol Ihe Contract, (Ceneral, Supplementary, o(her fonditions),Drawings,Speci/icafions,Addenda and atcepted Allei- nates,sAowing page or sheet numbers in all uses anJ dates where app/icable.) � , � This Agreement executed the day and year first written above. OWNER SHEPARD PARK pARTI�RSHIp CONTRACTOR �-J� EJ,E��C CORPORATION � ,f-?�/Z� � ..�� i .. �. AIA DOCUMENT Altl • OWNER-CONTRnCTOR 11GREEMENT • JANUARY 1974 EDITION • AIAB • O 197� ' THE nMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YURK nVENUE, N.W., WASNINGTON, p.C. 20006 $ , ' • � . • _ ,� ,�---; � � • EXHIBIT L-2 THE AMERICAN iNSTITUTE OF ARCHITECTS } i , AIA Document A111 �tandard �orm of �greerr�ent �etweer� Ovvr�er a�d Contractor where the basis o/ payment is the COST Of THE WORK PLUS A fEE TH15 DOCUMEN7 HAS IMPOR7AN7 tEGAC CONSEQUENCES; CONSUC7ATION WITH An'A7TORfJEY IS ENCOURAGED WI7H RCSPECT 70 175 CO�ti�PLETION OR MODIFlCA710N Use only wrth the latest Edition o� AIA Document A201, General Conditions of the Contract (or Construction. 7his document has been approved and endorsed by The Associated General Contractors of America. ' � AGREEMENT made this 17 th day of October in the year of Nineteen Hundred and 77 BETWEEN the O�vner: Shepard Park Partnership and the Contractor: Harris Mechanical Contracting Company the Project: Shepard Park Plaza the Architect: Miller , Hanson, Westerbeck �, Bell Associates The Owner and the Contractor agrees as set forth below. AIA DOCU�1[NT Allt • OWNER-CONTRACTOR AGREEMENT • )�NU�RY 1974 EDITION • A�I�� ' � 1974 ,� THE A�•1LKiCAN INSTI7UTE OF Af�CHITECIS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 _._ . .- , .___.___._-_._.g.... , .• ARTICLE 1 THE CONTRACT DOCUMENTS The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, all Addenda issued prior to execution of this Agreement and all Modifications issued subsequent thereto. These form the Contract, and all are as fully a part of the Contract as if attached to this Agreement or repeated herein. An enumeration of the Contract Documents appears in Article 16. If anything in the General Conditions is inconsistent with this Agreement, the Agreement shall govern. . , ARTICLE 2 THE WORK The Contractor shall perform all the Work required by the Contract Documents for (Here insert the caplion desuiptive ol Ihe Work as used on othe� Contract Documents.) Mechanical construction as per plans and specifications �, addenda � ARTICLE 3 , THE CONTRACTOR'S DUTIES AND STATUS The Contractor accepts the relationship of trust and confidence established between him and the Owner by this Agreement. He covenants with the Owner to furnish his best skill and judgment and to cooperate with the Ar- chitect in furthering the interests of the Owner. He agrees to furnish efficient business administration and , superintendence and to use his best efforts to furnish at all times an adequate supply of workmen and mate- rials, and to perform the Work in the best way and in the most expeditious and economical manner consistent with the interests of the Owner. AIA DOCUMENT A111 • OWNER-CONTf��1CTOR AGRfEMENT • )ANUARY 1974 EDITION • A�A� • � 1974 THE AMERICAN INSTITUTE OF AFCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 2 .. ._._._.,.. _,.-.,�..._.._�_..�,., � ARTICLE 4 �t':��,,': TIME OF COMMENCEMENT AND COMPLETION � The Work to be performed under this Contract shall be commenced and completed � (Here inscrt any spccia!provisions!or liquidaled d�mages relating to faifure to complete on time.) ARTICLE 5 COST OF THE WORK AND GUARANTEED MAXIMUM COST 5.1 The Owner agrees to reimburse the Contractor for the Cost of the Work as defined in Article 8. Such reimbursement shall be in addition to the Contractor's Fee stipulated in Article 6. 5.2 The maximum cost to the Owner, including the Cost of the Work and the Co tract r's f e, is aranteed not to exceed the sum of Six hundred sixteen thousand seven �un�rec� an� sixty-nine- - -dolla�st$ 616 , 769 . 00 ); such Guaranteed Maximum Cost shail be increased , or decreased for Changes in the Work as provided in Article 7. (Hcre intert any provision!or distribulion ol any savings. Delete Paragraph 5.2 if there is no Guaianteed Maximum Cosl.) AIA DOCUMLNT A111 • OWNER-CONTRACTOR AGREEMENT • JnNUARY '1974 EDITI�N • AIA� • m '1974 7HE AMERICAN INSTITUTE OF ARCtiITCCTS, 1735 hEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 3 ,___ . . � . ARTICLE 6 � CONTRACTOR'S FEE 6.1 In consideration of the performance of the Contract, the Owner agrees to pay the Contractor in current funds as compensation for his services a Contractor's Fee as follows: 90$ of monthly estimate � until S0; of the project is completed and then 100$ of monthly estimates with final payment 30 days after completion. 6.2 For Changes in the Work, the Contractor's Fee shall be adjusted as follows: _ 10$ fee as total mar.k-up on all change orders . � 6.3 The Contractor shall be paid Orie hundred per cent ( 100 %) of the proportionate amount of his fee with each progress payment, and the balance of his Fee shall be paid at the time of final payment. ARTICLf 7 � � CHANGES IN THE WORK . 7.1 The Owner may make Changes in the Work in accordance with Article 12 of the General Conditions insofar as such Article is consistent with ihis Agreement. 7he Contractor shall be reimbursed for Changes in the Work on the basis of Cost of the Work as defined in Artide 8. 7.2 The Contractor's Fee for Changes in the Work shall be as set forth in Paragraph 6.2, or in the absence of speci(ic provisions therein, shall be adjusted by negotiation on the basis of the Fee established for the original Work. � ARTICLE 8 COSTS TO BE REfMBURSED 8.1 The term Cost of the Work shall mean costs necessarily incurred in the prpper performance of the Work and . paid by the Contractor. Such costs shall be at rates not higher than the standard paid in the locality of the Work except with prior consent of the Owner, and sh311 include the items set forth below in this Article 8. 8.1.1 Wages paid for labor in the direct employ of the Contractor in the performance of the Work under applicab(e collective bargaining agreements, or under a salary or wage schedule agreed upon by the Owner and Contractor, and including such welfare or other benefits, if any, as may be payable with respect thereto. 8.1.2 Salaries of Contractor's Personnel when stationed at the field office, in whatever capacity employed. Per- sonnel en�aged, at shops or on the road, in expediting the produclion or transportation of materials or equipment, shall be considered as stationed at the field of(ice and their salaries paid for that portion of their time spent on this Work. AIA DOCUM[NT Altt • OWIJER-COhTRnCTOR nGREEMENT • JANUARY �974 EDITION • AIA� • m '1974 TNE nMEf�ICAN INSTIIUT[ OF ARCHI7ECT5, V35 NEW YORK AVENUE, N.W., WAShIINGTON, D.C. 20006 4 i I � ._____�_, __ - 8.1.3 Cost o! contributions, assessments or taxes for such items as unemployment compensation and social se- _ curity, insofar as such cost is based on �vages, salaries, or other remuneration paid to employees of the Con- �� ' � tractor and induded in the Cost of the Work under Subparagraphs 8.1.� and 8.1.2. =.+� 8.1A Thc proporlion of reasonable transportation, traveling and hotcl expenses of the Contractor or of his oHicers or employees incurred in discharge of duties connected with the Work. 8.1.5 Cost o( all materials, supplies and equipment incorporated in the Work, including costs of transportation thereof. 8.1.6 Payments made by the Contractor to Subcontractors for Work performed pursuant to subcontracts under this Agreement. 8.�.7 Cost, including transportation and maintenance, of all materials, supplies, equipment, temporary facili- ties and hand topls not owned by the workmen, which are consumed in the performance of the Work, and cost less salvage value on such items used but not consumed which remain the properry of the Contractor. 8.1.8 Rental charges of all necessary machinery and equipment, exclusive of hand tools, used at the site of the Work, whether rented from the Contr3ctor or others, including installation, minor rep�irs and rep(acements, dis- mantling, removal, transportation and delivery costs thereof, at rental charges consistent with those prevailing in the area. 8.1.9 Cost of premiums for all bonds and insurance which the Contractor is required by the Contract Documents to purchase and maintain. 8.1.�0 Sales, use or similar taxes related to the Work and for �vhich the Contractor is liable imposed by any ' governmental authority. 8.1.11 Permit fees, royalties, damages for infrin�ement of patents and costs of de(ending suits therefor, and deposits lost for causes other than the Contractor's negligence. 8.1.12 Losses and expenses, not compensated by insurance or other�vise, sustained by the Cqntractor in connection with the Work, prov;ded they have resulted from causes other than the fault or neglect of the Contractor. Such losses shall include settlements made �vith the vvritten consent and approval of the Owner. No such losses and expenses shall be included in the Cost of the Work for the purpose of determining the Contractor's fee. If, how- ever, such loss requires reconstruction and the Contractor is placed in charge thereof, he shall be paid for his services a Fee proportionate to that stated in Para�raph 6.1. 8.1.�3 Minor expenses such as telegrams, long distance telephone calls, telephone service at the site, express- age, and similar petry cash items in connection with the Work. 8.1.�4 Cost of removal of all debris. II.1.1� Costs incurred due to an emergency affecting the safety of persons and property. 8.1.16 Other costs incurred in the periormance of tl�e VVork if and to the extent approved in advance in writing by the O�vner. AIA DOCUMENT A]11 • OWNER-CONTRACTOR AGREEM[NT • )ANUARY �974 EDITION • AIAC�1 • OO �974 � TFfE nMERICAN INSTITUTE OF ARCHITECTS, '1735 NEW YORK AVENUE, N.W., WASFiINGTON, D.C. 20U06 $ . � A �. ARTICLE 9 ;'''s,';'�� ' COSTS NOT TO BE REIMBURSED ' j '�Y �+� 9.1 The term Cost of the Work shall not include any of the items set forth below in this Article 9. 9.1.1 Sa(aries or other compensation of ihe Contractor's Personnel at the Contractor's principal office and brancli oHices. 9.1.2 Expenses of the Contractor's Principal and Branch Offices other than the Field Office. 9.1.3 Any part of the Contractor's capital expenses, induding interest on the Contractor's capital employed for the Work. 9.1.4 Overhead or general expenses of any kind, except as may be expressly included in Article 8. 9.1.5 Costs due to the negfigence of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them, or for whose acts any of them may be liable, including but not limited to the correction of defective or noncon(orming Work, disposal of,materials and equipment wrongly supp�ied, or making good any damage to ' property. 9.1.6 The cost of any item not specifically and expressly included in the items described in Article 8. 9.1.7 Costs in excess of the Guaranteed Maximum Cost, if any, as set forth in Article 5 and adjusted pursuant to Artide 7. ARTICLE 10 DlSCOUNTS, REBATES AhD REFUNDS All cash discounts shall accrue to the Contractor unless the Owner deposit,s funds with the Contractor with which to make payments, in which case the cash discounts shall accrue to the Owner. All trade discounts, rebates and refunds, and all returns from sale of surplus materials and equipment shall accrue to the Owner, and the Contractor shall make provisions so that they can be secured. (Ffe�e insert any provisions relating�o deposits by the Owne� to permi( the�ontracror to obtain osh discounts.) • I I I I ARTICLE 11 SUBCONTRACTS 11.1 All portions of the Work that the Contractor's organization has not been accustomed to perform shall be performed under subcontracts. The Contractor shall request bids from subcontractors and shall deliver such bids to the Architect. The Architect will then determine, with the advice of the Contractor and subject to the approval of the Owner, which bids will be accepted. 11.2 All S�bcontracts shall conform to the requirements of Paragraph 5.3 of the General Conditions. Subcon- ' tracts awarded on the basis of the cost of such work plus a fee shall also be subject to the provisions of this Agreement insofar as applicable. AIA DOCUMENT A111 • OWNER-CQNTRnCTOR AGRE[MENT • �ANUARY 1974 EDITION • AIA� • m '1974 • THE AMERICAN INSTITUTE OF ARCHITECI"5, 1735 NEW YORK AVENUE, N.W., WnStiINGTON, D.C. 20006 6 . , � . __ . _ .____._.,. ,. ARTICIE 12 ACCOUNTING RECORDS The Contractor shall check all materials, equipment and labor enterin� into the Work and shall keep such full and detailed accounts as may be necessary for proper financial management under ihis A�reement, and the system shall be satisfactory to the Owner. The Owner shall be afforded access to all the Contractor's records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda and similar data relating to this Contract, and the Contractor shall preserve all such records for a period of three years after the final payment. - AR7ICLE 13 APPLICATIONS FOR PAYMENT 7he Contractor shall, at least ten days before each progress payment falls due, deliver to the Architect a state- ment, sworn to if required, showing in complete detail all moneys paid out or costs incurred by him on account of the Cost of the Work during the previous month for which he is to be reimbursed under Article 5 and the amount of the Contractor's Fee due as provided in Article 6, together with payrolls for all labor and all receipted bills for which payment has been received. ARTICLE 14 PAYMENTS TO THE CONTRACTOR 74.1 Tfie Architect will revie�v the Contractor's statement of moneys due as provided in Article 13 and will promptly issue a Certificate for Payment to the Owner for such amount as he approves, which Certificate shall be payable on or about the 2 S th day of the month. 14.2 Final payment, constitutin� the unpaid balance of the Cost of the Work and of the Contractor's Fee, shall . be paid by tl�e Owner to the Contractor vvhen the Work has been completed, the Contract fully performed and a final Certificate for Payment has been issued by the Architect. Final payment shall be due days after the date of issuance of the final Certificate for Payment. ARTICLE 15 TERMINATION OF CONTRACT 15.1 The Contract may be terminated by the Contractor as provided in Article 14 of the General Conditions. 15.2 If the Owner terminates the Contract as provided in Article 14 of the General Conditions, he shall reim- burse the Contractor for any unpaid Cost of the Work due him under Article 5, plus (1) the unpaid balance of the Fee computed upon the Cost of the Work to the date of termination at the rate of the percentage named in Article 6, or (2) if tl�e Contractor's Fee be stated as a fixed sum, such an amount as will increase the payments on account of his Fee to a sum which bears the same ratio to the said fixed sum as the Cost of the Work at the time of termination bears .to the adjusted Guaranteed Maximum Cost, if any, othenvise to a reasonable esti- mated Cost of the Work when completed. The Owner shall also pay to the Contractor fair compensation, either by purchase or rental at the election of the Owner, for any eq�ipment retained. In case of such termination of the Contract the Owner si�all further assume and b�come liable (or ohli�ations, commitments and unsettlecJ daims that the Contractor has previously undertaken or incurred in �ood faith in connection with said Work. The Contractor shall, as a condition of receiving the payments referred lo in this Article 15, execute and deliver all sucfi papers and take all such steps, including the legal assiRnment of his contractual rights, as the Owner may reyuire for the purpose of fully vesting in him the rights and benefits of the Contractor under such obligations or commitments. AIA DOCUMENT A111 • OWNER-CONTRACTUR AGREEMf.NT • JANUARY 1974 EDITION • AIA� • � 1974 THE nME�.ICAN INSTITUTE OF ARCHITECTS, 17]S NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 7 . . � . _._ .� � � � ARTICLE 16 MISCELLANEOUS PROVISIONS 16.1 Terms used in this Agreement which are defined in the Conditions of the Contract shall have the meanings designated in those Conditions. 16.2 The Contract Documents, which constitute the entire agreement between the Owner and the Contractor, are listed in Article 1 and, except for Modifications issued after execution of this Agreement, are enumeraled as follows: (List befow the Agreement, Conditione ol Ihe Contnct, fGme�al, Supplementary, other Condilions), Orawings,Specilinlions,Addenda and accepted Alter- nates,sAowing page or sheet numbers in a!1 cases and dates wh�re applicable.) 1 This Agreement executed the day and year first written above. OWN'cR SHEPARD PARK PARTNERSHIP CONTRACTOR HqRRIS yECHANICAL CONTRACTING � ,. C0. />.y ._7 �-�z�l`f� _Y�—:_`� ��-,�.�.i` 7 z�-�, . AIA DOCUMENT A111 • OWNER-CONTRHCTOR 11GREEMENT • ��NUARY 1974 EDITION • HIAB • � 1974 TFiE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK �VENUE, N.W., WASHINGTON, D.C. 20006 $ . , _ .. __,__..,� 1� ��r,�r . � � I� ��4��c. ,t� EXHIBIT N - , �r ..�� EXHIBIT M � � NOLAN DESIGN STUD10 12 TIMBERCLADE ROAD MINNEAPOLIS,M[NNESOTA 55437 � (612) 835•4431 October 17, 1977 , Shepard Park Plaza 790 Cleveland Avenue So. Saint Paul, Minnesota 55116 Gentlemen: Please consider this letter as confirmation of my quote to provide interior design services for furnishinga and wallcoverings in common areas and model apartments in your 101 unit apartment building for cost plus ten per cent. ' Thank you. • Sincerely, . NOZAN DESIGN STUDIO ' �� • . � Linda Z. Nola.n � � . _ � ,,. /' ,:.:., -.,.,:;a.� C/`.i `.� "'"-G� !'^••-,,,,,,, �<•��t=� CITY oP �. - � CITY OF SAINT PAUL �'�� = DEPARTMENT OF PLANNING AND ECONOMIC DEVELOPMENT ` , �; � '< � '_°'�'' : �• GARY E.STOUT,DIRECTOR ��, � �c �.� , 55 East fifth Street,Saint Paul,Minnesota,55101 612-298-5775 C.eoree Latimer :' r -+lr i EXHIBIT 0 ESTIMATED RENT SCHEDULE i i Apartment Size Monthly Rent , 1 bedroom apartments $350 . 00 to $500 . 00 per month depending on location � 2 bedroom apartments $450. 00 to $650. 00 per month ' depending on size and location 3 bedroom apartments � $550. 00 to $800 . 00 per month depending on size and location i � � � . , y 4` I f , �j l � . � � , 1 � %� � . � �. - � � - _ _ �_ �� . RESOLUTION NO. 77-10/26-8 RESOLUTION APPROVING DEVELOPNIENT AGREEb1ENT, LOAN AGREEMENT, AND DISBURSING AGREEMENT WITH SHEPARD PARK PLAZA, AND ASSIGNMENT OF LOAL'�i AGREEMENT TO � THE FIRST NATIONAL BANK OF SAINT PAUL ��iEREA5, by Resolution No. 77-2/9-1 adopted February 9, 1977, the Board of Commissioners of the Housing and Redevelopment Authority of the City of Saint Paul, Minnesota determined that the Shepard Park West Project Area was open and undeveloped land blighted by virtue of unusual and difficult physical characteristics of the ground which prevented nrarmal development of the land in the Project Area by private enterprise, determined that a partial tax exemption pursuant to Minnesota Statutes Section 462. 651, Subdivision 2, was necessary to permit redevelopment of said land by private enterprise, and approved the Redevelopment Plan For Shepard Park West and Project proposed thereby; and WHEREAS, by Resolution, Council File No. 268597 adopted February 22 , 1977, after public hearing upon the Redevelopment Plan, Project Proposal and Financing Plan, approved the Redevelopment Plan For Shepard Park West and Shepard Paxk Plaza redevelopment company proposal, and granted a partial tax exemption to the Project upon a determination that the land in the Project Area would not be redeveloped without such form of public assistance; and . WHEREAS, by Resolution No. 77-8/10-8 adopted August 10, 197?, the HRA Board of Commissioners determined the necessity to undertake a Commercial Development Project in connection with. the Redevelopment Project previously approved for Shepard Park West Area, to issue revenue bonds pursuant to R2innesota Statutes Chapter 474 to finance constructian of Project redevelopment in said Project Area as consistent with the purpos�s of said Chap_ter 474, and gave preliminary approval to said Project, bond issue and the preparation of necessary legal documents in connection with said Project; and L�7FiEREAS, at this meeting the HRA Board has adopted a Bond Resolution approving the Commercial Development Project and authorizing issuance of Housing Revenue Note of 1977 in the amount of $3,200 ,000 to finance in part the total development Project cost of $4, 8.86,233 of the Commercial Development Project being ca.rried out by Shepard Park Plaza as Redevelo�er of Sliepard Park West Redevelopment Area; and WHEREAS, in connection with the aforesaid Bond Issue, there has been presentec� to and considered at this meeting a Loan Agreement, Disbursing Agreement, Assignment of Loan Agreement, and Mortgage and Security Agreement between the HRA, the Redeveloper, and The First [�ational Bank of Saint Paul; and WHERAS, in connection with the redevelopment of the Shepard Park 4dest Redevelopment Project, there has been presented to and considered at this me�ting a Develanment Contract to be entered into by the HRA and the P.edeveloper pursuant to provision of Minnesota Statutes Section 462. 645, Subdivision 3. - _ __ __ _ i � �-�. ( . .v ` . � ;Y ll'' , . . `.. . �.r. � ...n.�+%� . . � C , ��. . `,�. . . .. f 7 /� � � .. � � . `,tin�ll . . /�� . . . . .. , _ . , .. . � � �� - � . . . . � � � . ' .� . . .. � . . ,'.:ri -2- WHEREAS, there has been presented to and considered at this meeting the Certificate and Consent of the State Planning Commission to the filing of the Certificate of LiMited Partnership of Shepard Park Plaza as a Redevelopment Company, the capital structure and borrowing proposed under the aforesaid Loan Agreement and Mortgage, the va�uation of the land, and the Actual Cost and Total Actual Cost �Schedules and all charges therein contained as in compliance with the provisions of the Redevelopment Company Act; and WHEREAS, the Construction Plans, dated October 12 , 1977, for the Shepard Park Plaza Project have been presented to and considered at this meetinq, together with the staff report indicatinq that said Plans are consistent with the Redevelopment Plan For Shepard Park taest. NOW THEREFORE, BE IT RESOLVED by the Board of Commissioners of the Housing and Redevelopment Authority of the City of Saint Paul, Minnesota as follows: 1. That the findings and determinations of Resolution No. 77-2/9-1 are hereby ratified and affirmed respecting the Project Area and P,e�evelopment Plan For Shepard Park West, which Project Area is further determined to qualify for treatment under the Municipal Housing and Redevelopment Act including Section 462. 415, Subdivision 6, thereof. 2. That the Project proposal and Construction Plans dated October 12 � 1977 of Shepard Park Plaza for redevelopment of the Project Area are hereby approved as consistent with the Redevelop- ment Plan For Shepard Park West. 3. That the Development Contract between the HRA and Shepard Park plaza is hereby approved for execution on behalf of the HRA �y its Executive Director, Secretary to the Board and the Head of the Department of Finance, City of Saint Paul, and that the Executive Director is authorized and directed to submit said Contract to the Council of the City of Saint Paul for its consideration and approval. ' � 4. That the Loan Agreement, Disbursing Agreement and Assign- ment of. Loan Agreemen�c, and Mortgage and Security Agx�eement between the HRA, Shepard Park Pla.za and The First National Bank of Saint Pakl are hereby approved and the Executive Director and Secretary � and Head of the City Department of Finance are authorized to execute said documents as required on behalf of the HRA. � _ . �: . t 1. . f ._� . ` i >;� . ,�.i �"'i • � � � ' . j � / � � � � � � � � ; 1;�' , ; •'�� _ __ .� _ _ _ ._�_—_.___---__._ __. __._---------____. _._.__._..�... ... _�. _. �. WHITE - GITV GIERK . PINK - F�NANCE GITY OF SAI�NT PALTL Council � CANARV - DEPARTMENT � � BLUE - MAVOR . Fll@ NO. � H�_LE�� Council Resolution � � ' Presented By Ref�rred To Committee: Date Out of Committee By Date RESOLUTION APPROVING REDEVELOPMENT CONTRACT AND RATIFYING GRANT OF PARTIAL TAX EXEMPTION . � TO SHEPARI? PARK .PLAZA AND SHEPARD PARK WEST PROJECT - WHEREAS, by Resolution, Council File No. 268597 adopted February 22, 1977 and approved March 3, 1977, the Council .of the City of Saint Paul approved the Redevelopment P1an For Shepard Park West, the Project Area of - which is deseribed as Lots Four (4) through Thirty-two (32) inclusive, Bloc3c Four (4) , Youngman and Lamm' s Addition, according to the plat thereof recorded in the office of the Register of Deeds, Ramsey County, l�iinnesota, for redevelopment by Shepard Park Plaza, as a redevelopment company under the Redevelopment Company Act, Minnesota Statutes, Sections 462. 591 through 462. 711; and � WHEREAS, in approving said Redevelopment Plan, the Council made certain findings pursuant to Minnesota Statutes, Section 462.521, Subdivision 2, that the land in the Project Area would not be redeveloped without financial aid through grant of partial tax exemption authorized � uncler Minnesota Statutes, Section 462. 651, Subdivision 1, that the project proposal of Shepard Park Plaza for development of the Project Area and the Redevelapm�nt Plan would afford maximum opportunity, consistent with the s�und needs of the community as a whole, for the redevelopment of the Project Area by private enterprise, and that the project proposal and Redevelopment Plan conformed to the Comprehensive � Plan For Saint Paul, the general plan for the de�elopment of the community as a whole; and COUNCILI�IEN Requested by Department of: Y eas N ays Butler Dept. of Ping. and F�cariarttic Develognent Hozza In Favor Hunt Levine • -- Against BY Roedler � Sylvester Tedesco Form Approved by City Attorney Adopted b�� Council: Date CeftiEied Passed by Council Secretary By B�� Appro�•ed by �layor: Date _ Approved by Mayor for Submission to Council By By ,, / � '�.., ,� � . � �� . i -. a , ,. � , _ a,�! .; _ ::..,,-,:r ��,� WHI7E - C1TY CLERK � • � � � PINK - FINANCE G I TY O F SA I NT PA LT L Council � � � CANARY - OEPARTMENT - t BL,UE � - MAVOR _ File,. NO. � Council Resolution Presented By • � Referred To Committee: Date K Out vf Committee By Date -2- Wf3EREA5, by said Resolution, Council File No. 268597, the Council granted a partial tax exem�tion to the Project subject to, among other things, the qualification of Shepard Park Plaza as a redevelopment company under the Redevelopment• Company Act and the execution of a Redevelopment Contract between Shepard Park Plaza and the Housing and • Redevelopment Authority of the City of Saint Paul, Minnesota with the requirements of said Act; and WHEREAS, under date of September 19 , 1977, the State Planning Agency acting for the State Housing Commission issued a Certificate of Consent pursuant to Minnesota Statutes , 5ection 462. 421, Subdivision 20, to the filing of the Certificate of Limited Partnership of Shepard Park Plaza stating that said Certificate of Limited Partnershig was consistent with the purposes of and in compliance with the limitations and restrictions imposed on redevelopment companies by Minnesota Statutes� Sections 462. 591 to 462. 711, the Redevelopment Company Act; and SntHEREAS, the Housing and Redevelopment Authority of the �City of Saint Paul, Minnesota (HRA) and Shepard Park Plaza negotiated a Redevelopment Contract pursuant to provision of Minnesota Statutes, S�ectio:� 462.645, Subdivisi_on 3, which has been submitted to the State Planning Agency together with an HRA Note Resolution authorizing issuance of $3,20a, 000 of hous?ng revenue note under Minnesota Statutes Chapter 474, a Loan Agreement whereby the proceeds of said Note are loaned to the Company for payment of Project costs, and Mortgage by the Company to the Project property to The First National Bank of Saint Paul, the proposed purchaser of the Note, and with evidence of the equity capitdlizdtion of tne Company; and COUNCILI�'[El�i Requested by Department of: . Yeas Nays Bt�tler Hozza Ir Favor Hunt Levine _ Against - BY Roedler - Sylvester Tedesco Form Approved by City Attorney Adopted by Council: Date _ -- Certified Passed by Council Secretary BY By- . ' Approved by :41a��or: Date Approved by Mayor for Submission to Council By By . . : � _ . _ . _ _ _ _. _ __ �� _,� . ' � 1 � /. � � � . '� % , ,,�, . _. ��. WHITE - CITV CLERK PINK - FINANCE GITY OF SAINT. PALTL Council � - C4NARV - OEPARTMENT �LtlE - MAVOR . Flle NO. � Council Resolution � Presented By Referred To Committee: Date �. . . � Qut of Committee By Date -3- WHEREAS, on October 25, 1977, the State Planning Commission issued a Certificate of Consent and Approval, among other things, cansenting to and approving the terms and conditions of the Redevelopment Contract between the HRA and Shepard Park Plaza as being consistent with the purposes of, and in conformity with, the limitations and restrictions imposed on redevelopment companies by the Redevelopment Company Act, and approved the valuation of the land in the Project Area and issuance of �partnership interests in Shepard Park Plaza in return for the con- � veyance and contribution of said land to Shepard Park Plaza; and WHEREAS, by its Resol.ution No. 77-10/26-8, the HRA, among other �things, approved the Construction Plans for the Project submitted on October 12, 1977, and approved the Redevelopment Contract with Shepard Park Plaza respecting the Project for execution on behalf of the HRA and for submission to the Council for its consideration and approval which Resolution has .been presented to and considered at this meeting, together with the Redevelopment Contract; and WHEREAS, upon cansideration of the files and records of the several: Council and HRA Board actions respecting the Shepard Park Area and Project, the evidence adduced at the public hearing upon the Redevelopment Plan and proposed .project, and the documents, records and reports submitted � at the HrZA Board Meeting of October 26, 1977 and this meeting, it appears necessary and desirable and in the public interest to remove conditions of blight in the Project Area and redevelop the same �in accordance with the Redevelopment Plan and Redevelopment Contract. COUNCILM1IEN Requested by Department of: Yeas Nays $utler Hozza In Favor � Hunt Levine _ Against BY Roedler Sylvester Tedesco Form Approved by City Attorney Adopted by Council: Date Gertified Passed by Council Secretary BY- B; Approved by 1�lat-or. Date _ Approved by Mayor for Submission to Council B}• sy . ; _l , ��: ' } ;! . � � . ti�.�� . . r�� . . r . � � . . � � .. . . . � . � .� . � � � � . . �� • _ -. _ __ ___ _ _ __ __ __ _ _ . ,_... ._ . .__.___ �._._..,......�.,�..,...,.�.:.:�,�. WH17E - CITV CLERK PINK - FINANCE G I TY �O F SA I NT PALT L Council - CANqRV - DEPARTMENT � BI.UE - MAVOR ' FI�e NO. Council I�Zesolution Presented Qy Referred To Committee: . Date , Out of Committee By Date -4- M NOW THEREFORE, BE IT RESOLVED by the Council of the City of Saint Paul as follows: . 1. That the findings and determinations made by Resolution, Council File No. 268597 after public hearing upon the Redevelopment Plan For Shepard Park West, the Project proposed thereby and the grant . ot partial tax exemption to the Project, pursuan� to Minnesota Statutes, 5ections 462. 521, Subdivision 2, and 462.651, Subdivision 1, are hereby • redetermined, ratified and affirmed. � 2. That the land in the Shepard �Park West Redevelopment Project �Area would not be made available, or the Project be financially feasible, for redevelopment in accordance with the Redevelopment Plan For Shepard Park West witYiout a grant of partial tax exemption by this Council and without the issuance of Housing Revenue Note of 1977 by the HRA. 3. That the terms and provisions of the Redevelopment Contract, ce�tified by the State Planning Agency as being consistent with the purposes of, and in conformity with, the limitations and restrictions imposed on redevelopment companies by the Redevelopment Company Act, and the amount, nature and terms of payment for the land to be acquired by Shepard Park Plaza ar_d the acquisition of said land in accordance with the Certificate of Consent and Approval of the State Planning Agency, are hereby approved. . COUNCILh1E!V � Yeas Nays Requested by Department of: Butler Hozza In Favor Hunt Levine _ Against BY Roedler Sylvester Tedesco . Form Approved by City Attorney Adopted bt� Cuuncil: Date Certified Y�assed by Counci] Secretary By Bp ' Approz�ed by :�lavor: Date Approved by Mayor for Submission to Council BY -- — — BY i '�.. �'y ' . , ' � ,� li , � ��'�/ s•x WMITE - CITV CLERK � � � PINK - FINANCE , CANqRY - DEGARTMENT � G I TY O F- SA I NT PA iT L COIIIICIl � B�LUE - MAVOR Flle NO. � Council Resolution . Presented E3y . Referred To Committee: Date �u�`�of Committee By Date -5- � 4. That the project proposal of the Redevelopment Plan for Shepard Park West does not require the sale or exchange of pubZicly held land or facilities to Shepard Park Plaza, nor are there any persons or families living in the Project Area who would be displaced by the Project plan or proposal and i.n need of suitable relocation dwelling accommoda- tions . � � 5. That the City of Saint Paul does hereby consent to the� Redevel- apment Contract, agree to be bound by its terms and conditions, and that the joinder in said Contract is hereby authorized by exe�:ution of the same an behalf of the City by the proper City officers. , COUNCIL:4IEN Yeas Nays Requested by Department of: Butter . Hoz�a In Favor Hunt " Levine _ Against BY Roedler Sylvester Tedcsco Form Approved b City Attorney / t\dupted bt� Council: Date — � Certified Yassed b}• Council Secretary By � �� B� A�pru:oed by :�iayor. Date Approved y Mayor for Submission to Council �Y -- By , � _ _ �'�,. / ''� f > � � � � � ; ' ��' r - � - : _ � �, , ��.: '. / REDEVELOPMENT CONTRACT THIS DEVELOPP�IENT CONTRACT, dated as of the lst day of November , 1977 between the HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF SAINT PAUL, NiINNESOTA, hereafter � called the "HRA" , and SHEPARD PARK PLAZA, a limited partner- ship, consisting of Stuart H. Nolan, Herbert R. Goldenberg, Ronald L. Harris, and Sheldon Stewart, as general partners , herein ealled the "Company" . RECITALS The Company is a limited partnership organized under the laws of the State of Minnesota, and is a duly certified ' R�development Company whose Limited Partnership Agreement i:s in compliance with the limitations and restrictions iriposed on redevelopment companies by Psinn. Stat. Section 462 . 591 through Section 462 . 711 (the "Redevelopment Company Act" ) . The Limited Partnership Agreement of the Company has been approved by the Minnesota State Housi:ng Commission as evidenced by a Certificate of Consent dated September . l9 , 1977. The Company has been formed to acquire, construct, operate, lease, manage and own an apartment project on the real property legally described as Lots Four (4) through Thirty Two (32) inclusive, Block Four (4) , Youngman & Lamm' s Addition, Ramsey County, Minnesota, and to conduct all other business activities related, pertinent or incidental thereto. �, The FiRA has prepared and approved, and the City of Saint Paul (the "City" ) has by Council Resolution No. 268597 , adopted February 22, 1977 , approved a Redevelopment Plan for Shepard Park W�st, dated January 7, 1977, which Redevelopment Plan is now duly in effect in the City and _ _.^_. �; �. _ _ ( _ ___ _,_. . _ __ _ _ ___ J,: S , �:�� , _.. _ _ _ _. _ ,< ,_ .. �..�.,�,�..,...�.;..��>��.,�: -r-•-a.��.,,_�� on tile in the office o� the City Council, 386 City Hall, Saint Paul, Minnesota. By Council Resolution No. 268597, the Council af the ,City, pursuant to authority granted under Minn. Stat. Sectian 462. 651, Subd. l, has c�ranted a partial tax exemption for the Project Area of the Redevelopment Project proposed by the Redevelopment Plan for Shepard Park [aest and the project proposal submitted by the Company to HRA. • The apartment project to be constructed and operated by the Company will be financed, in part, by the issue of a $3,200, 000. 00 Housing Revenue Note of 1977 pursuant to the Minnesota Municipal Industrial Development Act, Minn_ Stat. � Chapter 474 and the HRA by Resolution No. 77-8/10-8, adopted August 10, 1977, has given preliminary approval to •the proposal of the Company to undertake the Redevelopment Project. The First National Bank of Saint Paul (the "Bank") intends to purchase the $3, 2�0, 000. 00 Note and the Company will grant a first mortgage to the Bank which will encumber the apartment project and the land, to secure the Bank's repayment_ Minn. Stat. Section 462. 645 authorizes the HRA and a Redevelopment Company to enter into a contract with respect to the financing, construction, operation and supervision of the project which contract may contain provisions with respect to these matters and the dissolution of the Redevelopment Company, as may be deemed necessary, desirable or advisable, which provisions shall not be inconsistent w.ith Sections 462. 415 to 462. 711. NOW, THEREF�BE, in consideration of the premises and the mutuaT qbligations of the parties hereto, each of theri does hereby covenant and agree with the o�ther- as follows: 2 . . _ _ _ ___ , ... .. _ ., ._,._! � . � _ _ _. . , , , . :� .. ' . . . . . . � . _•Y �� .� �__->,r- . , � .�:,,, .,.;_. � ARTICLE I DEFINITIONS � As used in this Agreement, the following terms have �<the following meanings : l. Z. AeTUAL COST means the actual cost of the Project de�scribed and calculated in the attached Exhibit A, which is made a part .hereof. 1. 2. ASSIGNMENT OF LOAN AGREEMENT means the assignment of. loan agreement by the HRA to the First National Bank of Saint Paul, attached hereto as Exhibit B. 1. 3. BANK means the First National Bank of Saint Paul. 1. 4 . BOND RESOLUTION means the bond resolution of the HRA authorizing issuance of Housing Revenue N�te of 1977 in the amoun� of $3, 200,000. 00, attached hereto as Exhibit C. 1. 5, CERTIFICATE OF APPROVAL means the Certificate of Approval of the State Housing Commission, attached hereto as Exhibit D. 1. 6. CERTIFIC.ATE OF CONSENT means the� Certificate of Consent of the State Housing Commission, attached hereto as E�hib�.t E. 1. ?. CERTIFICATE OF LIMITED PARTNERSHIP means the Certificate of Limited Partnership of the Company, attached hereto as Exhibit F. i. 8. CITY means the City of Saint Paul. 1. 9. COMMISSION means the Minnesota State Housing Commission. 1. 10. LOAP1 AGREEMENT means the Loan Agreement between the HRA and the Company, attached hereto as Exhibit G. 1. 11. LAND means the real estate described in Exhibit H. 1. 12. MORTGAGE means the P�Iortgage between the Company and the First National Bank of Saint Paul, attached hereto � as Exhibit I. 3 . ._�.:_, . , . _ _ _.... ._ .;-- 1...� � � :�� , " 1. 13. MORTGAGEE means the First National Bank of Saint Paul. 1. 14 . PROJ�CT means the land and improvements thereon °� consisting of 101 apartment units suita�le for use as com- plete permanent living facilities for a single person or family and functionally related and subordinate facilities as they r,►ay from time to time exist. 1. 15. REDEVELOPP�IENT COMPANY ACT means P�inn. Stat. Sections 462. 591-462. 711. 1. 16. STATE PLANNING AGENCY means the Office of Local and Urban Affairs, State Planning Agency, acting for the � State Housing Commission. 1. 17. TOTAL ACTUAL FINAL COST means the total actual final cost of the Project as described and calcuiated in Exhibit J. ARTICLE II COVEN�NTS OF THE COMPANY 2. 1. PURPOSE. The Company hereb�r covenar.ts that it has been organized to serve a public purpose and that it shall be and remain subject to t?�e supervision and control of the Commission, authorities and governing bodies as provided by the Redevelopment Company Act, so long as that Act remains applicab3e to the Project; that all real and personal property acquired by it and all structures erected by it shall be deemed to be acquired or created for the promotion of the �urposes of the Redevelopment Company Act. 2. 2. COOPEFZATION WITH COMMISSION. The Company shall cooperate with the Commission to enable the Corru-nission to discharge its duties under Mirin. Stat. Section 462 . 681 ta keep informed as to the Company' s general condition, capital and the manner in which its property is constructed, leased, 4 ..._. _ �. j , � . :`�' - : . _ . . �� operated or managed with respect to the Company' s compliance � with �all provisions of law. ARTICLE III � WAR�NTIES AND COVENANTS OF HRA The HRA warrants, represents , covenants and guarantees to the Company, which warranties, representations , covenants and guarantees shall be true on the date hereof and shall survive the comoletion of construction of the Project and � which shall appZy notwithstanding any investigation made by or on behalf of the Company, as follows: 3. 1. The Project is located within a city of the first . class and in an area designated pursuant to Minn. Stat. Section 462� 415, Subd. 6. 3. 2. The City, by the requisite vote, has approved of the acquisition of the Land by the Company as provided in Minn. Stat. Section 462. 645, Subd. 3, and with respect thereto, the City has made the findings required by Minn. Stat. Section 462. 521, Subd. 2. 3. 3. The HRA has approved the plans for the Project in a�cordance with Minn. Stat. Sec;:_ons 462. 645, Subd. 2 and 462. 515. 3. 4. Upon obtaining the approval of the City of this Redevelopment Contract, this Red2velopment Contract will I�e a validr Iegally enforceable agreement; the Company will have a partial real estate tax exemption as described in paragraph 6. 6 below; and the Company will have the right to build the Project on the Land in accordance with the plans and specificatians therefor. ARTICLE I�1 FINANCING OF THE PR�JECT AI�ID � CRPITALIZATION OF TF-iE COMPANY The Company represents that the Actual Cost and the Tota� �lctual Final Cost are correct and accurate estimated 5 . . ,..� t _ , _ , , % ,. ..�, _ , . .,... . . :. .._., _....�.:;,�W..:..�.a�...�.... costs prior to the completion of the Project, and the Company shall seek and obtain certification by the Commission a�ter the completion of construction of the Project that the debts secured by mortgage liens against the Project do not exceed 90 percent of the Actual Cost ot the Project, excluding any sgonsors' or clevelopers' fees. The HRA acknowledges and � ac�rees that the items and categories set forth in or contem- plated by Exhibits A and J as making up the Actual Cost and the Total Actual Final Cost are in accordance with Minn. Stat. Section 462. 635 (2) . The Company covenants that its equity (or invested capital) is presently contemplated to be $ , but in no event shall it be less than 10 percent of the Actual Cost of the Project. The parties hereto a�knowledge that some of the Company' s equity or invested capital in the Project results from the contribution of the Lar.d by the partners to the Company, which the parties hereto acknowledge and agree has a present fair market value of not less than $ ARTICLE V PLANS AND CONSTRUCTION CONTRACTS The HRA hereby approves 1) the plan of the Project, 2) the construction contract between Knutson Construction Company as the general contractor and the Company as the owner (a copy of which is attached hereto and made a part hereof as Exhibit K) , 3) the contract between a corporation owned or controlled by Ronald Harris and Sheldon Stewart, two of the partners of the Company, with respect to the construction of the mechanical and electrical systems for the Project (attached hereto and made a part hereof as Exhibit L) and 4) the contract with Nolan bes-ign Studio, a proprietorship owned by Linda L. Nolan, the wife of Stuart NolanR one of the partners of the Company, for the furnishing 6 __.._:f.� � � . ". -��/ t _ _ �.<�, of interior design services, furniture, wall coverings and related accessories for the Project (a copy of which is attached hereto and made a part hereof as Exhibit M) . � ARTICLE VI �PERFiTION OF PROJECT 6. 1. CONTRACTS FOR SALARIES AND CONSTRUCTION. The Company covenants and agrees that it will not enter into cor�tracts for the payment of salaries to officers or emgloyees , except subject to the approval of the Commission and the HRA, or for the construction or for the substantial repair, improvement or operation of the Project, except subject to the approval of the HRA. The HRA hereby expressly approves the Management Agreement attached hereto and made a part hereof as Exhibit N between The Stuart Corporation,• as manager, and the Company with respect to the groperty manage- ment of the Project. Stuart Nolan, a partnEr of the Company, is a principal owner of The Stuar.t Corporation. �. 2. RENT REGULATION. The Project is intended by the HRA� the Company and the City to be a semi-luxury and/or luxury apartn,e�t project by means of which the City desires to retain upper income families and. individuals within the City (as opposed to provyding housing for low and moderate income families or individuals) . Thus, rent control is inappropriate for the Project. Under these circumstances , the HRA and the City' s legitimate concern in regulating rents is to insure that if the rents paid by �enants are based upon the market rents then prevailing and if such rents result in substantial cash flow to the Company after payment of the statutory return on investment to the Company and its partners and after reasonable allowarices for repairs , maintenance, replac�ment reserves and working capital, then such excess should not inure to the Company but should be paid to the City and applied against accrued taxes for 7 . __., .,.. ,._, , _ _, __. __ _.,,. __r.�...,�. 1� ' :��,�' � � . :¢�� hich exemption was granted by the C�ty and received by the Company. The procedure se�t forth in par�qraph 6 . 3 below is designed to accomplish this. � The Rent Schedule attached hereto as Exhibit O represents the Company' s best estimate of the rent to be charged for each type of apartment unit within the Project upon completion af construction. Said Rent Schedule is hereby approved by the HRA and the Company is authorized to charge such rents. Ho�ever, the Company may decide to increase and/or decrease the rents on all or on various apartment units based upon the then prevailing circumstances, and the Company shall have the complete power and authority to increase or decrease rents subject, however, to the following: any increase of rent which results in a rental charge for an apartment being in excess of 110 percent of the rent prevailing immediately prior to such proposed rent increase shall be submitted in writing to the HRA at least 10 days in advance of the effective date of such rent increase. Such increase shall � become effective unless within 10 days after receipt of such notice, the HRA gives written notice to the Company that the proposed rent increase is inconsistent with the purposes for construction of the Project, inconsistent with the purposes � of the-Act and such rent increase is unwarranted. If the Company disputes the conclusion of the HRA, the Company may have the matter submitted to arbitration as set forth in Article IX below. In any such arbitration proceeding, the �urden of proving that the proposed rent increase is unwarranted and inconsistent- with the purposes for construc- tion of the Project and inconsistent with the purposes of the Act, shall be on the HRA. Any decision of- the arbitrators shall be conclusive and binding upon the parties . 8. _ _.,_..__� � / _ _.�J� - �. E� 6. 3. EXCESS CASH FUND. The revenues from operations of the Project (exclusive of insurance proceeds , condemna- tion proceeds, or the proceeds of sale or refinancing of °�he Project) shall be expended and applied in the following order of priority: (a) First, to the gaymen� of operating expenses of the Project which shall inc�ude, without limitation, adver- tising, professional fees , utility charges, insurance . charges, salaries and benefits , management fees, repair and maintenance expenses and real estate taxes . (b) Second, any and all debt serviee payments shall be paid including any installments of principal and interest on any loans to the Company which shall include amortization of any debt owing to any of the partners of the Company. (c� Third, the� Company shall establish a reserve fund for maintenance, repairs and replacements which shall be funded in an annual amount equal to 6/lOths of 1 percent of the actuaS cost of construction of the structures of the Project; provided, however, that the balance in said reserve ac�ount �hal� not exceed 6 percent of the actual cost of construction of the structures of the Project. (d) Fourth, to pay any deficits from operations from prior periods, including any arrearage in the payment of �he maximum dividends and/or cash dist�ibutions to the partners of the Company as permitted by Minn. Stat. Section 462. 611. (e� �ifth, to pay the maximum dividend and/or cash distribu- tion to the partners of the Company for the current period based on Minn. Stat. Sect�on 462. 611. (f) Sixth, to establish an operating reserve fund to provide reserves for the payment of operating deficits 9 � x _ , . ___ , . .i� ' -� or the maximum dividends or cash distributions to the partners of the Company for future per.iods; provided, however, that in no event shall the balance of such � fund exceed the gross rents from the Project for four months, based on full occupancy at the then pre�Taili_ng rental rates. (g} Finally, any remaining funds shall be paid to the City to be credited against accrued real estate taxes for . which exemption was granted, and received by the Company. Among other things, any such payment shall be treated as a partial payment for purposes of t�inn. Stat. Section 462. 651, Subd. 4. Any reserve account, such as the maintenance, repair and replacement reserve described in subparagraph (c) above or the operating reserve account described in subparagraph (f) above, shall be and remain the property of the Company, the Company shall be free to use the funds in 5uch accounts for the designated purposes of such accounts , and/or for the purchase of capital items or improvements, and the Campany shall be entitled to receive and be paid any iriterest earned or accruec� on such funds, which shall be treated as additional revAnue from operations of the Project and which shall be subject to this paragraph 6. 3. Upon the conveyance of the Project or dissoZution of the Compan1, and after providing for the payment of all cur�en� operating expenses , taxes, indebtedness and all accrued interest thereor., and all accr.ued dividends or cash distributions pursuant to Section 462. 611, and after returning to all of the partners of the Company their equity inv��stm.ent in the Compan�:, any tYien remaining balance in said reserve accounts shall be paid to the general fund of the Ci.ty to be credited against accrued real estate taxes for which exemption was granted, and received by the Company. 10 ! ' . . . l;' . - :�� -t .� -e_ .. . , ,..:�..:, r,�.._.�,,�;,w...�..,�,,..�,:�.Po -- - �;..,... 6. 4. CHANGE IN PROJECT. During the period of any tax exemption granted pursuant to Section 462. 651, the Company shall not change or modify any feature of the Project for wich approval of the HRA is required, without the approval of the HP.A and the City. 6. 5. � DI�IIDENDS AND/OR DISTRIBUTIONS. The Redevelo�ment Company Act, as originally written, was intended to apply to corporations. Minn. Stat. Section •462. 421, Subd. 20 was amended to provide that a Redevelopment Company in a city of the first class could be a limited partnership. The Redevelop- � ment Company Act, however, was not amended to reconcile its language to the use of the Redevelopment Company Act by a partnership. To clarify same of the questions thereby raised and to clarify some of the other ambiguities which exis-� in. Section 462. 611, and other related statutes , the parties hereto agree that the Redevelopment Company Act shall be construed as follows with respect to dividends and distribu- tiflns and as set forth in paragraph 6. 6 regarding tax exem�tions: � . (a) The use of the word "earnings" means cash surplus derived from operations of the Project excluding cash surplus provided by condemnation, insurance pzoceeds, or sale or refinancing of the Project, and "earnings" shall not refer to "profit and loss" for accounting or income tax purposes. "Earnings" as used in said Section 462. 611 shall exclude, shall not take into account, and shall not be reduced by non-cash charges such as depreciation, but shall take into account and shall be reduced by principal payments and other cash expenditures which do not represent items deductible for federal income tax purposes. I1 •-- .__. f_T % � � � � j� ' •� � � (b) The election by the Company to receive payment under either Subd. 1 or Subd. 2 of Minn. Stat. Section 462. 611 shall be made after completion of construction and , determination of Total Actual Final Cost of the Project at such time or from time to time as the Company shall establish and give written notice of to the Commission. (c) The use of the word "dividend" in the Redevelopment Company Act shall mean and include cash distributians - received by the partners of the Company from the Company. (d) The limitation set forth in Section 462. 611, Subd. 2 for interest, amortization and dividends (cash distribu- tions) of 8 percent of invested capital or equity shall mean interest and amortization paid on debts of the Company to its partners and the maximum amount• of f div�_dends (cash distributions) payable to partners of the Company shall not be reduced by principal amortiza- tion on any .debts held by persons or entities other than partners of the Company. (e) The parties hereto acknowledge and agree that if the C�mpany elects under Se�ti.�n. 462. G11, Subd. 2, it is their intent that the partners of the Company receive a a return on their equity investment in the Company of 8 percent per annum. The Redevelopment Company Act shall be construed by the parties to fully effectuate this intent. 6. 6. REAL ESTATE TAX �XEMPTION ANll EXEMPTIO� FROP� SPECIAL TAXES AND FEES. The real estate tax exemption granted to the Project as set forth in City Council Resolution No. 268597 will result in real property taxes being based on an assessed valuation of 12 1/2 percent of the assessor's fair market valuation of land and improvem�nts, but in no event shall real property taxes exceed the sum of $45, 765. 00 per year. 12 _. + . _ .... j � __. __ . .� �'! , � - ' . . '� � � . _ �•d �� . .l.� . The parties hereto acknowledge and agree that it is th�ir intention and understanding that the Redeveloprnent Company Act p�ovides for a partial tax exemption and an �exemption from special taxes and fees to promote the construc- tion of projects by redevelop�nent compznies at the lo�aest possible cost and with the lowest possible operating expenses. The parties hereto agree to construe the Act and, particularI.y, Minn. Stat. Section 462. 651, to carry out this intention of the Redevelopment Company Act to the maximum extent possible_ Minn. Stat. Section 462. 651, Subd. 1 provides that the partial tax exemption granted by the City Council to the Project "shall not operate for a period more than 25 years, commencing in each instance froM the date on which the benefits of such exemption first become available and effect•ive" . It � is understood and agreed that the date on which the benefits o� such exemption first become available and effective to the Project is the first date when taxes assessed on the structure of the Project are due and payable, :in whole or in part. 6.. 7. ANNUAL REPORTS. The Company shall submit annual financial reports to the HF�A an3 the Co�i�mission within 90 days after the end of each fiscal year of the Company. Said reports shall be certified as being true and correct to the best of hi-s knowledc�e by a partner of the Company, but such reports need not be certified by an independent certified public accountant unless the Bank or any other holder of the Mortgage so requires, in accordance with the terms of the Mortgage. ARTICLE VII SALE OR DISPOSAL OF THE PROJECT 7. 1. Until the termination of the tax exemptinn grarited .. pursuant to Section 462. G51, Subd. l, whether by expiration or by any other cause, ttie Company shall not have the pocaer to se�l the Project, except as provided by the terms and 13 - -- --_! y , : _ _ ; _. provisions of the Redevelopment Company Act. After the . termination of the tax exemption, by expiration, by payment of aIl accrued taxes for which exemption was granted and �seceived toqether with interest at S percent per annum, or by any other cause, the Company shall be free and shall have authority to sell, transfer or assign the Project, or any part thereof, without the necessity of the approval, consent or joinder of the City or the HRA and, subjeet to the pro- visions of paragraph 7. 2 below, without being accountable to the City or the HRA for the profits of any such sale, transfer or assignment. 7. 2. In the event of a sale of the Project prior to the expiration of the period of the tax exemptiqn, the net proceeds from said sale, together �with any funds then remaining in the reserve accounts set forth in paragraph 6 . 3 (c) and (f) above, shaTl be applied first to the payment of all current operating expenses, taxes , indebtedness and aIl accrued interest thereon, and all accrued dividends (cash distributions) , subject to the limitations imposed by Section 462. 611.; next, to the payment to each partner to the extent of his capital contributians to, or equity investment in, the Company; next, to the C�ty to repay all accrued taxes for which exemption was granted and received, together with interest at the rate of 5 percent per annum, reduced by any prior payments to the City on account of said real estate taxes for which exemption was granted and received; next, to the partners of the Company, pro rata in accordance with their profit and loss sharing ratios in the Company. Wheze there is a termination of the tax exemption granted to the Project, then, pursuant to the last sentence tif Section 462.. 695, Subd. 1, the Com�any shall not be required to pay : to the Citx the total of all accrued taxes for which exemption 14 . �i f _ . �� :�. ,,, was granted and received together with interest at the rate of 5 percent per annum. 7. 3. After the expiration of any tax exemption gxanted �under Section 462. 651, nothing contained herein shall be construed to prevent, prohibit or limit in any manner what- soever a conveyance of the Project in fee to the owner or owners of the capital of the Company or to any corporation, partnership or trust designated by it or them or the dissolu- tion or termination and reconstitution of the Company pursuant to appropriate laws and, in any such event, the City shall have no claim, right, title or interest in or to the Project nor any claim against any company or entity which succeeds to the interest of the Company in the Project. ARTICLE VIII • TERMINATION OF TAX EXEMPTION AND EFFECT THEREOF, AND OPTION TO ACQUIRE ANY INTEREST OF THE CITY It is the intent of the parties hereto and the City that upon the terminatian of the .tax exemption granted to the Project pursuant to Minn. Stat. Section 462. �51, whether by expiration of the period of said exemption or by any other cause inciuding, without limitation, the payment by the Redevelopment Company to the City of the total of all accrued taxes for which such exemption was granted and received, together with interest at the rate of 5 percent per annum, the tax exeription shall no longer apply to the Project or to any owner thereof, and any person or entity which then owns the Project, including the Company, whether reconstituted or not, shall own the Project free and clear of any claim in or to the Project by the City or any claim by the City against any owner thereof. The provisions of the Redevelopment Company Act appear to carr'y out this intent of the parties , but there is a remote possibility that Minn. Stat. Section 462. 695 and the rest of the Redevelopment Company Act could be construed to the 15 . ._.� _,� .� , f :�1 - effect that upon the termination of the tax exemption granted to the Project pursuant to i�inn. Stat. Section 462 . 951, and after payment to the Company and its owners of all accrued .�ividends and after retiring their ownership interest in the . Company, the Project would belong to the City. This is not the intent of the parties hereto and the Company and its partners would not develop the Project under such circum- stances. Accordingly, the parties hereto agree that they contemplate and agree that the Redevelopment Company Act will fully effectuate their intent as expressed above. To this end, the City hereby grants to Shepard Park, a partnership comprised of the same partners that comprise the Company, an option to acquire all of the right, title and interest of the City in any proceeds of sale of the Project or �in the assets of the Company upon dissolution of the Company (othe.r than the City' s right to be paid the total of all accrued taxes for which exemption was granted and received together with interest at the rate of 5 percent per annum, as expressly . set forth in this Agreement) . Said option shaZl be exercisable by written notice dP].iverPd by Shepard Park to the City within six months after any final determination that the City has some interest in the proceeds of the sale of the Project or in the assets of the Company upon dissolution of the Company, other than accrued real estate taxes for �ahfch exemption was granted and received. A final determination shall be a final decision of a court of competent jurisdiction after all appeals have been exhausted or all time for appeal has expired. The option price shall be the sum of $10 ,000.00 which shall be paid in cash by Shepard Park to the City si�ultaneously with the notice of the exe.rcise of the option. : Upon receipt of said notice and said payment, tne City shall execute a written instrument, in recordable form, disclaiming� 1� -�.�,. __�. � _ _ :;,_ % �� quit claiming and assigning to Shepard Park any and all interest, ownership, rights or claims that the City has or . maX have in the proceeds of the sale of the Project and in the '�ssets of the Company upon dissolution of the Company, other than the City' s right, if any, to receive the total of all accrued real estate taxes for which exemption was granted and received as expressly set forth in this Agreement. ARTICLE IX • ARBITRATION Any dispute which is specificaZly set forth in this Redevelopment Contract to be resolved in accordance with the provisions hereof shall be determined by binding arbitration as foZlows: On 10 days' written notice by either par_ty to the other, each shall desiqnate an arbitrator, and a third arbitrator shall be selected by the two so designated. . The arbitrators shall all be attorneys licensed to practice law in the State of Minnesota who have been licensed for at least 10 years prior to the arbitration. In �he event either party fail.s to designate an arbitrator within 10 days following nocice, or in the event of the inability or failure �f the two arbitrators to agree upon a third within 10 days following their designation, said selection shall be made by the judge . then in chambers in the District Court of Ramsey County, Minnesota. Each party shall be entitled to be represented by counsel. The difference or dispute shall be settled in accordance with the Minnesota Uniform Arbitration Act and the Rules of the American Arbitration Association shall govern. The decision af a majority of the arbitrators , signed and acknowledged, shall be final and binding upon the Company and the HRA. To the extent feasible, such decision shall be made within 30 days of the appointment of the third arbitrator. The costs and expenses of the arbitrators, and 17 , ... .___� j , _ _ _ __.,,_. __._. ; !' ' ' , . / ' �� all attorneys' fees and costs incurred, shall be paid by the losing party in the arbitration proceeding, and the definition of "losing party" shall be a proper subject of the arbitra- "tion proceeding. ARTICLE X � D'IISCELLANEOUS � 10. i. NOTICES. Al1 notices, offers, reguests , and other communications from either of the parties hereto to the other shall be in writing and shall be considered to have been duly given or served if sent by first class certified or registered mail, return receipt requested, postage prepaid, to the party at its address set forth below, or to such other address as such party may hereaftez designate by written notice �o the other party. • (a) If to HRA, to the Housing and Redevelopment Authority of the City of Saint Paul, Minnesota, 610 Northwestern NationaZ Bank Building, 55 East 5th Street, Saint Paul, Pfinnesota, 55101; (b) If to• Company to Shepard Park Plaza, 790 Cleveland • � Avenue South, Suite 217, Saint Paul, Minnesuta, 55116, with a capy to Paul H. Ravich, 3724 IDS Center, Minneapolis, .Minnesota, 55402. 10. 2. IMPORTANCE OF EACH COVENANT. Each covenant and agreement on the part of one party is understood and agreed to constitute an essential part of the consideration for each covenant and agreement on the part of the other party. . 10. 3. WAIVER OF BREACH. One or more waivers of any covenant, term or condition of this Agreement by either party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. 7.0. 4. INVALIDITY. If any part of this Agreement or any part of any provision hereof shall be adjudicated to be 18 . - , _� , ' �f ' .: . 'is� void or invalid, then the remaining provisions hereof no� specifically so adjudicated to be invalid shall be executed without reference to the part or portion so adjudicated, insofar as such remaining provisions are capable of execution. 10. 5. GOVERNING LAW. This Agreement shall be subject to and governed by the laws of the State of Minnesota. 10. 6. HEADINGS. The headings of the paragraphs and ----.-T. subparagraphs of this Agreement are for convenience of reference only and do not form a part hereof and in no way interpret or construe such paragraphs and subparagraphs. 10. 7. INTERCHANGEABILITY OF WORDS; JOINT AND SEVERAL LIABILITY. Words and pronouns shall be interchangeable with respect to gender, and singular and plural, as the context or application requires. If two or more parties are referred to collectively under one designation, the liability of each shall be joint and several. 10. 8. PARTIES IN INTEREST. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the respective parties, and the respective parties and their representatives will execute any and all instru- ments, releases, assignments, and consents which may reasonably be required in order to carry out the provisions of this Agreement. 10. 9. ENTIP.E AGREEMENT. This instrument contains the entire agreement of the parties . It may not be changed orally but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modifica- tion, extension or discharge is sought. 10. 10. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. . 19 , . , ,. . s . ��-�` s� . �'�� IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. HdUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF SAINT PAUL By � g�, � Its Executive Director Director, Department of FinanEe and Managenlent Services By Its Secretary . SHEPARD PARK PLAZA By Stuart H. Nolan By Herbert R. Goldenberg BY Ronald L. Harris By Sh�ldon Stewart STATE OF MINNESOTP_ ) ) ss COUNTY OF Ramsey ) On this 26th day of October , 1977, before me, a Notary Public within and for said County, personally appeared Gary E. Stout and Mary C. Garvey , to me personally known, who, being each by me duly sworn, did say that they are respectively the Executive Director and the Searetarv of HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF SAINT PAUL, the corporation named in the fore- going instrument, and that the seal affixed to said instrument is the corporate seal of said corporation, and that said i�strument was signed and sealed in behalf of said corpora- tion by authority of its Board of Ca�4ciissioners and said C�ary E Stout and Mary C. Garvey acknowledged said instrument to be the free act and deed of said corporation. zo _,_._,,..,.-.7 � _. ___ _ _._._ �_ ,.. �.. I �. % . '�f , sh�� -� . .. _ . . ___.._._.._.--.- _.__. y �� , �� STATE OF MINNESOTA ) ) ss COUNTY OF ) On this day of , 1977, before me, a Notary Public within and for said County, personally appeared °�TUART H. NOLAN, HERBERT R. GOLDENBERG, RONALD L. HARRIS, AND SHELDON STEWARD, to me personally known, who, being each � by me duly sworn, did say that they are the General Partners of the partnership named in the foregoing instrument, and tk�at said instrument was signed in behalf of said partnershzp by authority of all of its partners, and acknowledged said instrument to be the free act and deed of said partnership. JOINDER AND CONSENT OF CITY The City of Saint Paul does hereby join in and consent to the foregoing Agreement and agrees to be bound by the terms and conditions set forth therein. � • CITY OF SAINT PAUL By Its STATE OF MINNESOTA ) ) ss COUNTY �F � On this day of , 1977, before me, a Notary Public wiLhin and for said County, personally appeared , to me personally known, who, being by me duly sworn, did say that he is �he of the City of Saint Paul, a municipal corporation, named in the foregoing instrument, and that said instrument was signed in behalf of said municipal corporation by authority of and said acknowledged said instrument to be the free act and deed of said municipal corporation. 21 . _. _,.., . f � , . �,` '=.�