1998-01-19 Contract for Private Development CONTRACT
FOR
PRIVATE DEVELOPMENT
By and Between
CITY OF ALBERTVILLE,MINNESOTA
and
DONALD G. BARTHEL AND BETTY L. BARTHEL
Dated as of: January 19, 1998
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ARTICLE I
Definitions
Section1.1. Definitions........................................................................................................................2
ARTICLE II
Representations and Warranties
Section 2.1. Representations by the City..............................................................................................4
Section 2.2. Representations and Warranties by the Developer..........................................................4
ARTICLE III
Acquisition and Conveyance of Property;
Assessments and Land Acquisition
Section 3.1. Status of the Development Property ...............................................................................6
Section3.2. Site Improvements ...........................................................................................................6
Section 3.3. Financing of Site Improvements......................................................................................6
Section3.4. City Costs ........................................................................................................................7
Section3.5. Records ............................................................................................................................7
Section3.6. Soil Conditions ................................................................................................................7
Section 3.7. Business Subsidy Agreement ..........................................................................................8
ARTICLE IV
Construction of Minimum Improvements
Section 4.1. Construction of Minimum Improvements.......................................................................9
Section4.2. Construction Plans ...........................................................................................................9
Section 4.3. Commencement and Completion of Construction .......................................................10
Section 4.4. Certificate of Completion ..............................................................................................10
ARTICLE V
Insurance and Condemnation
Section5.1. Insurance ........................................................................................................................11
ARTICLE VI
Tax Increment; Taxes
Section 6.1. Right to Collect Delinquent Taxes ................................................................................13
Section 6.2. Use of Tax Increments ..................................................................................................13
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ARTICLE VII
Mortgage Financing
Section7.1. Mortgage Financing .......................................................................................................14
Section 7.2. City's Option to Cure Default on Mortgage ..................................................................14
ARTICLE VIII
Prohibitions Against Assignment and Transfer; Indemnification
Section 8.1. Representation as to Development ................................................................................15
Section 8.2. Prohibition Against Developer's Transfer of Property and
Assignment of Agreement ............................................................................15
Section 8.3. Release and Indemnification Covenants .......................................................................16
ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined .............................................................................................18
Section 9.2. Remedies on Default .....................................................................................................18
Section9.3. No Remedy Exclusive ...................................................................................................18
Section 9.4. No Additional Waiver Implied by One Waiver ............................................................18
ARTICLE X
Additional Provisions
Section 10.1. Conflict of Interests; City Representatives Not
IndividuallyLiable ........................................................................................19
Section 10.2. Equal Employment Opportunity .................................................................................19
Section10.3. Restrictions on Use ......................................................................................................19
Section 10.4. Provisions Not Merged With Deed .............................................................................19
Section 10.5. Titles of Articles and Sections ....................................................................................19
Section 10.6. Notices and Demands ..................................................................................................19
Section10.7. Counterparts ................................................................................................................20
Section10.8. Recording .....................................................................................................................20
Section 10.9. Choice of Law&Venue ..............................................................................................20
EXHIBIT A Description of Property
EXHIBIT B Certificate of Completion
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CONTRACT FOR PRIVATE DEVELOPMENT
THIS AGREEMENT, made on or as of the 19th day of January, 1998, by and between THE
CITY OF Albertville, MINNESOTA, a municipal corporation, under the laws of Minnesota (the
"City") and Donald G. Barthel and Betty L. Barthel (collectively, the "Developer").
WITNESSETH:
WHEREAS, pursuant Minne��ta Stat��tPs, Sections 469.124 through 469.134 (the "Act"),
the City has undertaken a program to promote economic development and job opportunities and to
promote the development of land which is underutilized within the City, and in this connection
created the Development District No. 1 (hereinafter referred to as the "Project") in an area
(hereinafter referred to as the "Project Area") located in the City and a Tax Increment Financing
District No. 9 (the "TIF District") within the Project Area, all pursuant to the Act and Minne��ta
�rar„re�, Sections 469.174 to 469.179; and
WHEREAS, the City is authorized to undertake certain activities to prepare such real
property for development by private enterprise; and
WHEREAS, in order to achieve the objectives of the Project Plan the City is prepared to
reimburse certain land acquisition and development costs of the Project, in order to bring about
development in accordance with the Development Plan and this Agreement; and
WHEREAS, the City believes that the development of the Project Area pursuant to this
Agreement, and fulfillment generally of this Agreement, are in the vital and best interests of the
City and the health, safety, morals, and welfare of its residents, and in accord with the public
purposes and provisions of the applicable State and local laws and requirements under which the
Project has been undertaken and is being assisted.
NOW, THEREFORE, in consideration of the premises and the mutual obligations of the
parties hereto, each of them does hereby covenant and agree with the other as follows:
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ARTICLE I
nefinitions
Section l.l. T�efiniti�ns. In this Agreement, unless a different meaning clearly appears
from the context:
"Agreement" means this Agreement, as the same may be from time to time modified,
amended, or supplemented.
"City" means the City of Albertville, Minnesota.
"Certificate of Completion" means the certification provided to the Developer pursuant to
Section 4.4 of this Agreement.
"City Development District Act" or "Act" means Minnes�ta Stat>>te�, Sections 469.124
through 469.134, as amended.
"Construction Plans" means the plans, specifications, drawings and related documents on
the construction work to be performed on the Development Property which (a) shall be as detailed
as the plans, specifications, drawings and related documents which are submitted to the appropriate
building officials of the City, and (b) shall include at least the following: (1) site plan; (2)
landscape plan; and (3) such other plans or supplements to the foregoing plans as the City may
reasonably request to allow it to ascertain the nature and quality of the proposed construction work.
The Construction Plans for any building to be constructed on the Development Property shall
additionally include the following: (1) foundation plan; (2) basement plans; (3) floor plan for each
floor; (4) cross sections of each(length and width); and(6) elevations (all sides);
"County" means the County of Wright, Minnesota.
"Developer" means Donald G. Barthel and Betty L. Barthel, or their permitted successors
and assigns.
"Development Properiy" means the real property described as such in Exhibit A of this
Agreement. After construction of the Minimum Improvements, the term means the Development
Property as improved.
"Development Plan" means the City's Project Plan for Development District No. 1, as
amended, and as it may be further amended.
"Event of Default"means an action by the Developer listed in Article IX of this Agreement.
"Holder" means the owner of a Mortgage.
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"Minimum Improvements" means construction of an approximately 9,990 square foot bus
warehousing facility.
"Mortgage" means any mortgage made by the Developer which is secured, in whole or in
part, with the Development Property and which is a permitted encumbrance pursuant to the
provisions of Article VIII of this Agreement.
"Project" means the City's Development District No. l.
"Project Area" means the real property located within the boundaries of the Project.
"State"means the State of Minnesota.
"Tax Increment" means that portion of the real property taxes which is paid with respect to
the Development Property and which is remitted to the City as tax increment pursuant to the Tax
Increment Act.
"Tax Increment Act" means the Tax Increment Financing Act, Minne��ta Sta�, Sections
469.174 to 469.179, as amended.
"Tax Increment District" or "TIF' District" means the City's Tax Increment Financing
District No. 9.
"Tax Increment Plan" or "TIF Plan" means the City's Tax Increment Financing Plan for Taac
Increment Financing District No. 9, as approved November 3, 1997 and as may amended.
"Tax Official" means any County assessor, County auditor, County or State board of
equalization, the commissioner of revenue of the State, or any State or federal district court, the tax
court of the State, or the State Supreme Court.
"Termination Date" means the earlier of February 1, 2008, or the date on which the
Developer has been fully reimbursed for the Site Improvement Costs (as defined in Section 3.2 of
this Agreement) in accordance with the terms and conditions of this Agreement.
"Unavoidable Delays" means delays beyond the reasonable control of the party seeking to
be excused as a result thereof which are the direct result of strikes, other labor troubles, prolonged
adverse weather or acts of God, fire or other casualty to the Minimum Improvements, litigation
commenced by third parties which, by injunction or other similar judicial action, directly results in
delays, or acts of any federal, state or local governmental unit (other than the City in exercising its
rights under this Agreement) which directly result in delays. Unavoidable Delays shall not include
delays in the Developer's obtaining of permits or governmental approvals necessary to enable
construction of the Minimum Improvements by the dates such construction is required under
Section 4.3 of this Agreement.
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ARTICLE II
Renresentatinnc and Warranties
_
Section 2.1. �nresentati�nG h�thP�. The City makes the following representations as
the basis for the undertaking on its part herein contained:
(a) The City has the power to enter into this Agreement and carry out its obligations
hereunder.
(b) The activities of the City are undertaken for the purpose of fostering the
development of certain real property which for a variety of reasons is presently unutilized and
underutilized, and for the purpose of promoting economic development and the creation of
employment opportunities.
Section 2.2. Renresentati�ns ancl Warranti .� h3� the l�evel�rer. The Developer represents
and warrants that:
(a) The Developer has the power to enter into this Agreement and carry out its
obligations hereunder.
(b) The Developer will cause to be constructed, operated, and maintained the Minimum
Improvements in accordance with the terms of this Agreement,the Development Plan, and all local,
state, and federal laws and regulations (including, but not limited to, environmental, zoning,
building code, and public health laws and regulations).
(c) The Developer has received no notice or communication from any local, state, or
federal official that the activities of the Developer or the City in the Project Area may be or will be
in violation of any environmental law or regulation (other than those notices or communications of
which the City is aware). The Developer is aware of no facts the existence of which would cause it
to be in violation of or give any person a valid claim under any local, state, or federal environmental
law, regulation or review procedure.
(d) The Developer will cause the Minimum Improvements to be constructed in
accordance with all local, state, or federal energy-conservation laws or regulations.
(e) The Developer will obtain or cause to be obtained, in a timely manner, all required
permits, licenses and approvals, and will meet, in a timely manner, all requirements of all
applicable local, state, and federal laws and regulations which must be obtained or met before the
Minimum Improvements may be lawfully constructed.
(fl Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement is prevented, limited by, or conflicts with or results in a breach of the
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terms, conditions, or provisions of any restriction or any evidences of indebtedness, agreement, or
instrument of whatever nature to which the Developer is now a party or by which it is bound, or
constitutes a default under any of the foregoing.
(g) Whenever any Event of Default occurs and if the City shall employ attorneys or
incur other expenses for the collection of payments due or to become due, or for the enforcement of
performance or observance of any obligation or agreement on the part of the Developer under this
Agreement, the Developer agrees that it shall, within ten days of written demand by the City,pay to
the City the reasonable fees of such attorneys and such other expenses so incurred by the City.
(h) The proposed development by the Developer hereunder would not occur but for the
tax increment financing assistance being provided by the City hereunder.
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ARTICLE III
Status nf Pr�nert�
Assessmentc and T,and Acn �isi ion
Section 3.1. 4tatus �f the l�evel�nment Pmn�. As of the date of this Agreement, the
Developer owns the Development Property. The City shall have no obligations to acquire the
Development Property or any interest therein.
Section 3.2. Site Tmnr�vements. (a) In order to make development of the Minimum
Improvements economically feasible, the City will reimburse the Developer, in the manner set forth
herein, for up to $69,858 of the Site Improvement Costs, hereby defined as the costs of grading,
excavation, landscaping, soil corrections, installation of sanitary sewer, water, and storm sewer
utilities, and construction of streets, curbs, and parking facilities (the "Site Improvements");
provided that all such costs are incurred by the Developer and designed to serve the Minimum
Improvements. In no case shall the City reimburse the Developer for more than$69,858 of the Site
Improvement Costs incurred by the Developer. Any Site Improvement Costs in excess of this
amount shall be the responsibility of the Developer. The City shall have no obligation to the
Developer or to any third party with respect to any defects in the construction of improvements
financed or reimbursed by the City pursuant to this Agreement.
(b) Subject to the terms and conditions of this Agreement, including without limitation
the City's superior rights to tax increment pursuant to Section 3.4 of this Agreement, the City will
reimburse the Developer for the Site Improvements Costs.
Section 3.3. Financing�f Site Tmnmvem .nts. (a) The Site Improvement Costs will be paid,
without interest, by the City to the Developer in semi-annual installments payable on each February
1 and August 1 ("Payment Dates") commencing August 1, 1999 and concluding no later than the
Termination Date. These payments will be made from Available Tax Increment as defined in this
Section 3.3 and from no other source.
(b) The term "Available Tax Increment" means 99.90 percent of the Tax Increment
generated with respect to the Development Property as calculated by the County and paid to the
City during the six months preceding any Payment Date.
(c) If on any Payment Date there is available to the City insufficient Available Tax
Increment to pay the amounts due on such date, the amount of such deficiency shall be deferred and
shall be paid, without interest thereon, on the next Payment Date on which the City has available to
it Available Tax Increment in excess of the amount necessary to pay the amount due on such
Payment Date.
(d) The City shall have no obligation to pay any portion of the Site Improvement Costs
that remains unpaid after the Termination Date. The City may prepay the Site Improvement Costs
at any time.
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(e) The City shall not be obligated to make any payment under this Section if: (i) there
is an Event of Default on the Developer's part under this Agreement that has not been cured as of
the Payment Date; or(ii)the Developer has failed to comply with the payment procedures described
in paragraph(fl herein.
(fl At least 30 days before the first Payment Date, the Developer must submit to the
City a payment request certificate signed by its duly authorized representative stating that the
Developer has paid Site Improvement Costs in an amount that equals at least $69,858, and that no
Event of Default has occurred and is continuing under this Agreement. The first payment request
certificate must be accompanied by a certificate of a project engineer or other project supervisor
showing in adequate detail that the Site Improvement Costs have been incurred and paid by the
Developer.
(g) The City makes no warranties or representations that Available Tax Increment will
be sufficient to pay the Site Improvement Costs. The Developer agrees and understands that
Available Tax Increment is subject to calculation by the County and change in State law, and that a
significant portion of Site Improvement Costs may remain unpaid after the Termination Date. The
Developer further agrees and understands that TIF estimates provided by the City, and its agents,
officers, or employees, are estimates only and not intended for the Developer's reliance.
(h) The Developer agrees and acknowledges that its right to any Available Tax
Increment pursuant to this Agreement is subordinate to the City's rights to reimbursement of City
Costs set forth in Section 3.4.
Section 3.4. ��sts. (a) In order to reimburse itself for $17,465 of the costs of
sidewalk, trail, and drainage improvements (the "City Costs") to be incurred by the City within the
Project, the City shall on every Payment Date retain 50% of Available Tax Increment. No interest
shall accrue on incurred but unpaid City Costs.
(b) If the actual amount of the City Costs is less than $17,465, the terms of this Section
3.4 shall apply to such lesser amount.
(c) The City's rights under this Section 3.4 shall terminate after the City has been fully
reimbursed for the City Costs.
Section 3.5. B�cLs. The City may at all reasonable times, after reasonable notice,
inspect, examine and copy all books and records of the Developer relating to the Minimum
Improvements. The Developer shall use its best efforts to cause the contractor or contractors, all
subcontractors, and their agents and lenders to make their books and records relating to the Site
Improvements available to the City upon reasonable notice, for inspection, examination and audit.
These records shall be kept and maintained by the Developer for a period of four years following
completion of construction of the Site Improvements.
Section 3.6. S�il C�nc�iti�ns. Except as set forth in the Purchase Agreement, the Developer
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acknowledges that the City makes no representations or warranties as to the condition of the soils
on the Development Property or its fitness for construction of the Minimum Improvements or any
other purpose far which the Developer may make use of the Development Property, provided
further that in any event the Developer further agrees that it will indemnify, defend, and hold
harmless the City, and its governing body members, officers, agents, and employees, from any
claims or actions arising out of the presence, if any, of hazardous wastes or pollutants on the
property.
Section 3.7. Rusiness Suhsic�v Aa eement. The provisions of this Section 3.7 constitute
the "business subsidy agreement" for the purposes of the Business Subsidy Act.
(a) General TeYms. The parties agree and represent to each other as follows:
(1) The subsidy provided to the Developer includes the Available Tax
Increment paid to the Developer for Site Improvement Costs, which disbursement
represents a forgivable loan that is repayable by the Developer in accordance with this
Section. The Available Tax Increment is payable from a portion of the Tax Increments
from the TIF District, an economic development tax increment financing district.
(2) The public purposes of the subsidy are to promote development of a
warehousing facility in the City, generate spin-off development at a key location in the
City, increase net jobs in the City and the State, and increase the tax base of the City and
the State.
(3) The goals for the subsidy are: to secure development of the Minimum
Improvements on the Development Property; to maintain such improvements as a
warehousing facility for at least five years as described in clause (6) below; and to create
the jobs and wage levels in accordance with Section 3.7(b) hereof.
(4) If the goals described in clause (3) are not met, the Developer must make
the payments to the City described in Section 3.7(c).
(5) The subsidy is needed because the Land Acquisition and Site
Improvements costs make development of the Minimum Improvements financially
infeasible without public assistance, all as determined by the City upon approval of the
TIF Plan.
(6) The Developer must continue operation of the Minimum Improvements as
a warehousing facility for at least five years after the date of issuance of the Certificate of
Completion.
(7) The Developer does not have a parent corporation.
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(8) The Developer has not received, and does not expect to receive, financial
assistance from any other "grantor" as defined in the Business Subsidy Act, in connection
with the Development Property or the Minimum Improvements.
(b) Job and Wage Goals. The Developer represents and warrants that:
(1) Within two years after the date of issuance of the certificate of completion
of the Minimum Improvements (the "Compliance Date"), the Developer shall cause to be
created at least 1 new full-time equivalent job on the Development Property (excluding
any jobs previously existing in the State as of the date of this Agreement and relocated to
this site) and shall cause the wages for all employees on the Development Property to be
no less than $10.00 per hour, exclusive of benefits. The City may, after a public hearing,
extend the Compliance Date by up to one year, provided that nothing in this section will
be construed to limit the City's legislative discretion regarding this matter.
Notwithstanding anything to the contrary herein, if the wage and job goals described in
this paragraph are met by the Compliance Date, those goals are deemed satisfied despite
the Developer's continuing obligations under Sections 3.7(a)(6) and 3.7(d).
(2) In addition to and not in limitation of the provisions of Section 3.7(b)(1),
the wages for at least ninety percent (90%) of all employees on the Development Property
must at all times prior to the Termination Date be at least equal to one-hundred sixty
percent (160%) of the federal minimum wage for individuals over the age of twenty.
(c) Remedies. If the Developer fails to meet the goals described in Section 3.7(a)(3), the
Developer shall repay to the City upon written demand from the City: (1) a"pro rata share" of the
amount of any Available Tax Increment disbursed to the Developer for Land Acquisition and
Site Improvement Costs under Section 3.3 hereof; (2) interest on the amount in clause (a) at the
greater of either percent (8.00%) or the implicit price deflator as defined in Minnesota Statutes,
Section 275.50, subd. 2, accrued from the date of issuance of the certificate of completion to the
date of payment; and (3) any other costs, fees, fines, penalties, reimbursements, or other
expenditures made by the City (including but not limited to attorneys fees) because of the
Developer's failure to meet the goals contained in this Section 3.7, including but not limited to
any failure to maintain the Minimum Improvements as a "qualified manufacturing facility" (as
defined by Minnesota Statutes, Section 469.176, subdivision 7) at all times prior to the
Termination Date. For purposes of Section 3.7(c)(1), the term "pro rata share" means
percentages calculated as follows:
(i) if the failure relates to the number of jobs, the jobs required less the jobs
created, divided by the jobs required;
(ii) if the failure relates to wages, the number of jobs required less the number of
jobs that meet the required wages, divided by the number of jobs required;
(iii) if the failure relates to maintenance of the Minimum Improvements in
accordance with Section 3.7(a)(6), 60 less the number of months the Minimum
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Improvements were operated in accordance with Section 3.7(a)(6) (where any month in
. which the Minimum Improvements is in operation for at least 15 days constitutes a month
of operation), commencing on the date of the Certificate of Completion and ending with
the date the Minimum Improvements ceases operation in accordance with Section
3.7(a)(6), as determined by the City Representative, divided by 60; and
(iv) if more than one of clauses (i) through (iii) apply, the sum of the applicable
percentages, not to exceed 100%.
Nothing in this Section shall be construed to limit the City's remedies under Article VIII
hereof. In addition to the remedy described in this Section and any other remedy available to the
City for failure to meet the goals stated in Section 3.7(a)(3), the Developer agrees and
understands that it may not a receive a business subsidy from the City or any grantor (as defined
in the Business Subsidy Act) for a period of five years from the date of the failure or until the
Developer satisfies its repayment obligation under this Section, whichever occurs first.
(d) Reports. The Developer must submit to the City a written report regarding business
subsidy goals and results by no later than February 1 of each year, commencing February 1, 2004
and continuing until the later of(i) the date the goals stated Section 3.7(a)(3) are met; (ii) 30 days
after expiration of the five-year period described in Section 3.7(a)(6); or (iii) if the goals are not
met, the date the subsidy is repaid in accordance with Section 3.7(c). The report must comply
with the Business Subsidy Act. The City will provide information to the Developer regarding the
required forms. If the Developer fails to timely file any report required under this Section, the
City will mail the Developer a warning within one week after the required filing date. If, after 14
days of the postmarked date of the warning, the Developer fails to provide a report, the
Developer must pay to the City a penalty of$100 for each subsequent day until the report is filed.
The maximum aggregate penalty payable under this Section $1,000.
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ARTICLE IV
Constructi�n �f Minimum imnr�vements
_
Section 4.1. (',�nstn�cti�n nf Minimum Tmnr�vement�. The Developer agrees that it will
cause to be constructed the Minimum Improvements on the Development Property in accordance
with the approved Construction Plans, and at all times prior to the Termination Date will operate
and maintain,preserve and keep the Minimum Improvements or cause the Minimum Improvements
to be maintained, preserved, and kept with the appurtenances and every part and parcel thereof, in
good repair and condition.
Section 4.2. C'�nstn�cti�n Plans. (a) Before becoming entitled to any payment of Available
Tax Increment, the Developer shall submit to the City Construction Plans. The Construction Plans
shall provide for the construction of the Minimum Improvements and shall be in conformity with
the Development Plan, this Agreement, and all applicable State and local laws and regulations. The
City will approve the Construction Plans in writing if: (i) the Construction Plans conform to the
terms and conditions of this Agreement; (ii) the Construction Plans conform to the goals and
objectives of the Development Plan; (iii) the Construction Plans conform to all applicable federal,
state and local laws, ordinances, rules and regulations; (iv) the Construction Plans are adequate to
provide for construction of the Minimum Improvements; (v) the Construction Plans do not provide
for expenditures in excess of the funds available to the Developer for construction of the Minimum
Improvements; and (vi) no Event of Default has occurred. Approval may be based upon a review
by the City's Building Official of the Construction Plans. No approval by the City shall relieve the
Developer of the obligation to comply with the terms of this Agreement or of the Development
Plan, applicable federal, state and local laws, ordinances, rules and regulations, or to construct the
Minimum Improvements in accordance therewith. No approval by the City shall constitute a
waiver of an Event of Default. If approval of the Construction Plans is requested by the Developer
in writing at the time of submission, such Construction Plans shall be deemed approved unless
rejected in writing by the City, in whole or in part. Such rejections shall set forth in detail the
reasons therefore, and shall be made within 30 days after the date of their receipt by the City. If the
City rejects any Construction Plans in whole or in part, the Developer shall submit new or corrected
Construction Plans within 30 days after written notification to the Developer of the rejection. The
provisions of this Section relating to approval, rejection and resubmission of corrected Construction
Plans shall continue to apply until the Construction Plans have been approved by the City. The
City's approval shall not be unreasonably withheld. Said approval shall constitute a conclusive
determination that the Construction Plans (and the Minimum Improvements constructed in
accordance with said plans) comply to the City's satisfaction with the provisions of this Agreement
relating thereto.
(b) If the Developer desires to make any material change in the Construction Plans after
their approval by the City, the Developer shall submit the proposed change to the City for its
approvaL If the Construction Plans, as modified by the proposed change, conform to the
requirements of this Section 4.2 of this Agreement with respect to such previously approved
Construction Plans, the City shall approve the proposed change and notify the Developer in writing
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of its approval. Such change in the Construction Plans shall, in any event, be deemed approved by
the City unless rejected, in whole or in part, by written notice by the City to the Developer, setting
forth in detail the reasons therefore. Such rejection shall be made within ten (10) days after receipt
of the notice of such change. The City's approval of any such change in the Construction Plans will
not be unreasonably withheld.
Section 4.3. ('.nmmencement anci C�'�mnleti�n �f('.nnstr�cYi�n. In order to commence and
complete construction of the Minimum Improvements in a timely fashion, the Developer
commenced and completed such construction by December 31, 1997, prior to execution of this
Agreement, but did so only in the expectation that the assistance to be provided by the City
hereunder would be forthcoming. All work with respect to the Minimum Improvements to be
constructed or provided by the Developer on the Development Property was in conformity with the
Construction Plans as submitted by the Developer and approved by the City.
Section 4.4. C",ertificate �f C'�m leti�n. (a) Promptly after substantial completion of the
Minimum Improvements in accordance with those provisions of this Agreement relating solely to
the obligations of the Developer to construct the Minimum Improvements (including the dates for
beginning and completion thereo fl, the City will furnish the Developer with the Certificate shown
as Exhibit B. Such certification by the City shall be a conclusive determination of satisfaction and
termination of the agreements and covenants in this Agreement with respect to the obligations of
the Developer, and its successors and assigns, to construct the Minimum Improvements and the
dates for the beginning and completion thereof. Such certification and such determination shall not
constitute evidence of compliance with or satisfaction of any obligation of the Developer to any
Holder of a Mortgage, or any insurer of a Mortgage, securing money loaned to finance the
Minimum Improvements, or any part thereof.
(b) If the City shall refuse or fail to provide any certification in accordance with the
provisions of this Section 4.4 of this Agreement, the City shall, within thirty(30) days after written
request by the Developer, provide the Developer with a written statement, indicating in adequate
detail in what respects the Developer has failed to complete the Minimum Improvements in
accordance with the provisions of this Agreement, or is otherwise in default, and what measures or
acts it will be necessary, in the opinion of the City, for the Developer to take or perform in order to
obtain such certification.
(c) The construction of the Minimum Improvements shall be deemed to be substantially
completed when the Developer has received an occupying permit from the responsible inspecting
authority.
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