HomeMy WebLinkAbout09/25/14 EDA Meeting
Meeting Location: Municipal Center
7100 147th Street West
City of
Apple Valley, Minnesota 55124
NOTICE: The Apple Valley Economic Development Authority will hold a
meeting at the Municipal Center, on Thursday, September 25, 2014, at 6:00 p.m.
to consider the items listed in the following agenda:
SEPTEMBER 25, 2014
ECONOMIC DEVELOPMENT AUTHORITY MEETING
TENTATIVE AGENDA
6:00 p.m.
1. Call to Order.
2. Approval of Agenda.
3. Approval of Minutes of July 10, 2014.
4. Approval of Consent Agenda Items*:
A. Adopt Resolution Approving Loan Forgiveness for Time Square.
5. Regular Agenda Items:
A. Parkside Village:
1. Conduct Public Hearing Regarding Proposed Transfer of Ownership of Gabella Property.
2. Approve Resolution Consenting to Partial Assignment of Development Agreements and
Authorizing Execution of the Consent.
3. Approve Resolution Consenting to Mortgage on Gabella Property and Consenting to
Mortgage on Galante Property.
6. Other
A. Thrive 2040 Housing Policy Plan Discussion and Comment.
7. Staff Updates.
A. Vitalocity! Workshop.
8. Adjourn.
* Items marked with an asterisk (*) are considered routine and will be enacted with a
single motion, without discussion, unless a commissioner or citizen requests the item
separately considered in its normal sequence on the agenda
ECONOMIC DEVELOPMENT AUTHORITY
City of Apple Valley
Dakota County, Minnesota
July 10, 2014
Minutes of the special meeting of the Economic Development Authority of Apple Valley, Dakota
County, Minnesota, held July 10, 2014, at 7:00 p.m., at Apple Valley Municipal Center.
PRESENT: Commissioners Goodwin, Bergman, Grendahl, Hamann-Roland, Hooppaw, and
Maguire.
ABSENT: Commissioner Melander
City staff members present were: Executive Director Tom Lawell, City Attorney Michael
Dougherty, Community Development Director Bruce Nordquist, Finance Director Hedberg, City
Planner Tom Lovelace, Planner Kathy Bodmer, Planner Margaret Dykes, and Department
Assistant Murphy.
Meeting was called to order at 9:31 p.m. by President Goodwin.
APPROVAL OF AGENDA
MOTION: of Grendahl, seconded by Bergman, approving the agenda. Ayes - 6 - Nays - 0.
APPROVAL OF MINUTES
MOTION: of Hamann-Roland, seconded by Hooppaw, approving the minutes of the special
meeting of May 8, 2014, as written. Ayes - 6 - Nays — 0.
CONSENT AGENDA
None
LIVABLE COMMUNITIES DEMONSTRATION ACCOUNT (LCDA) GRANT
APPLICATION
Planner Margaret Dykes reviewed the Grant Application for Site Acquisition for Lot 1, Block 1,
Village at Founders Circle (aka "the triangle") for proposed Village Pointe Plaza project.
She stated on May 8, 2014, the Apple Valley EDA ("EDA") authorized staff to submit a
Metropolitan Council LCDA Grant Application pre-application for the Village Pointe Plaza
proposal (the "Project"). The Project proposes a pedestrian-friendly, integrated mix of uses with
78 units of senior-owned housing, retail, office, and a boutique grocery on the 3.65-acre lot
southwest of the intersection of Galaxie Avenue and 153rd Street W. The grant application
request of $1,148,639 would be used for site acquisition of the property, which is now owned by
the City. The City acquired the property from Dakota County after the site went through the tax
forfeiture process. The City paid the County the $1,148,639 for the site to prevent auction or
further languishing in the marketplace. If the Metropolitan Council approves the grant, the funds
would be used to purchase the site from the City and convey the site to the developer, Cooperative
Lifestyle Group, LLC, a partnership of Ecumen and Lifestyle Communities, LLC. By reducing
Economic Development Authority
City of Apple Valley
Dakota County, Minnesota
July 10, 2014
Page 2
site acquisition costs, the developer would be able to move forward with an intensive, vertical
mixed-use project to provide lifecycle housing, and neighborhood commercial uses with an
innovative structured parking solution on the most prominent center parcel in the Central Village.
If the grant funds are approved, the $1,148,639 would be used by the EDA to acquire the subject
site from the City.
Discussion followed.
MOTION: of Bergman, seconded by Hooppaw, adopting Resolution No. 2014-03 approving
2014 Metropolitan Council Livable Communities Demonstration Account (LCDA)
Grant application for site acquisition for Lot 1, Block 1, Village at Founders Circle
for proposed Village Pointe Plaza project. Ayes - 6 - Nays – 0.
PARKSIDE VILLAGE – REVISED AGREEMENTS FOR TWO-PHASE PROJECT
Planner Kathy Bodmer stated the request is for revised and reauthorized agreements to allow
construction of Parkside Village Gabella multiple family building, consisting of 196 units, north of
Kelley Park.
The owners of the Parkside Village development, IMH Special Asset NT 175 — AVN, LLC and
Titan Development 1, LLC, received approval to construct the Parkside Village development with
a total of 322 units January 2013. The project included the 196-unit Gabella building north of
Kelley Park and the 126-unit Galante building along Galaxie Avenue. At its May 8, 2014,
meeting, the Developer requested and the EDA supported a reconsideration of the timing and
financial structure of the project by splitting the development into two phases, with construction of
the 196-unit Gabella building in August and construction of the 126-unit Galante building in the
future.
She stated the Business Subsidy Agreement and the Development Assistance Agreement are
revised so that they would be divided between the two projects. At its May 8, 2014, meeting, the
Apple Valley Economic Development Authority authorized staff to negotiate the amendment of
documents to allow for a two-phase project
Discussion followed.
MOTION: of Hooppaw, seconded by Hamann-Roland, adopting Resolution No. EDA-2014-
04 approving the revised Development Assistance Agreement for Parkside Village
Gabella. Ayes - 5 - Nays – 1. (Grendahl)
MOTION: of Hamann-Roland, seconded by Bergman, adopting Resolution No. EDA-2014-
05 approving the revised Business Subsidy Agreement for Parkside Village
Gabella. Ayes - 5 - Nays – 1. (Grendahl)
Economic Development Authority
City of Apple Valley
Dakota County, Minnesota
July 10, 2014
Page 3
STAFF UPDATES
Community Development Director stated the next scheduled EDA meeting would be September
25, 2014.
ADJOURNMENT
MOTION: of Hamann-Roland, seconded by Maguire, to adjourn. Ayes - 6 - Nays - 0.
The meeting was adjourned at 9:38 p.m.
Respectfully Submitted,
an Murphy, Departm nt A'sijtant
Approved by the Apple Valley Economic Development Authority on
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City of App
Val ey
ITEM:
EDA MEETING DATE:
SECTION:
LIA
September 25, 2014
Consent
PROJECT NAME:
Time Square Shopping Center Business Subsidy
PROJECT DESCRIPTION:
Request to Forgive Business Subsidy for Time Square Shopping Center
STAFF CONTACT:
Margaret Dykes, Planner
APPLICANT:
Time Square Shopping Center, LLC
DEPARTMENT/DIVISION:
Community Development Department
PROJECT NUMBER:
PC12-26-Misc.
Proposed Actions
• Adopt the draft resolution forgiving repayment of the business subsidy for Time Square
Shopping Center, LLC.
Project Summary/Issues
In June 2012, the Apple Valley Economic Development Authority ("EDA") approved a Business
Subsidy Agreement (the "Agreement") to provide financial support to the property owner of Time
Square shopping center in the amount of $157,400 for substantial site improvements, including the
installation of pergolas, benches, landscaping, and sidewalks. The Agreement required that at least 15
jobs be created that paid an average of $30 per hour (wages and benefits). Repayment of the business
subsidy was required if the property owner was not able to meet the goals regarding the number of
jobs and the wages paid.
The following site improvements were completed with the combination of EDA funds, CDA funds,
and the owner's contribution:
• Completed removal and replacement of north parking lot and area in front of TCF Bank and
alley behind the South building. Added bituminous wear coat, compacted to average 2.5
inches. Patched areas and seal coated parking lot. Removed and patched concrete islands.
• Constructed dumpster enclosures on north side of the North building. Enclosures constructed
of cedar with steel frame. Includes footings, and three (3) steel bollards.
• Excavated and installed 888 sq. ft. of concrete sidewalk from North building to Cedar Avenue
frontage road. Includes removal of planter boxes and debris, installation of black dirt and sod,
and permit costs.
• Excavated, installed of landscaping, bedding and sod for pedestrian plazas at North building.
• Power washed and painted rear side of North building.
• Installed brick veneer to 24 existing steel columns. Installed steel bollards at north parking lot
to shield existing sidewalk.
• Installed 13-2'x2 piers with cement caps and black wrought iron fencing for three pedestrian
plaza areas at north building.
• Installed three wood pergolas with 24 cement columns, bases and capitals for three pedestrian
plaza areas at North building.
• Installed 6 steel tables (three are ADA compliant), 21 steel chairs and 6 steel benches (all
permanent) for pedestrian plazas at North building. Installed six electrical outlets for
decorative pergola lighting.
The EDA's funds were used to support the reconstruction of the parking lot, the installation of bollards
in the parking lot, and the installation of brick veneer on the existing steel support columns.
The funds for the assistance came from changes to Tax Increment Financing (TIF) law that allowed
the broad use of tax increment from any TIF district to assist in the construction or rehabilitation of
private development, and create jobs, both temporary construction jobs and permanent jobs.
Construction on any project receiving funds from this program had to begin by July 1, 2012, and all
expenditures were to be completed by December 31, 2012.
The total project costs were $438,649; the EDA funds equaled about 36% of the total costs. The
property owner paid the costs up front. The project created 32 construction jobs; 20 of the jobs paid an
average of $3 6 per hour. Consequently, the EDA approved the disbursement of the funds to reimburse
the property owner in December 2012.
The Agreement stated the EDA would forgive the 50% of the subsidy if all goals were met after one year
from the disbursement date, and the remaining 50% after two years. The City Attorney's office has
advised that because the project goals were met by December 2012, the EDA may choose to completely
forgive the subsidy at this time.
This item is considered a "housekeeping" issue.
Budget Impact
N/A
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H:\Economic Dev. Projects\Time Square\Time Square Business Subsidy\092514 EDA memo Time Square loan forgiveness.docx
APPLE VALLEY ECONOMIC DEVELOPMENT AUTHORITY
RESOLUTION NO. EDA-14-
A RESOLUTION PARTIALLY FORGIVING REPAYMENT OF BUSINESS SUBSIDY
WHEREAS, pursuant to the Minnesota Business Subsidy Act, set forth in Minnesota
Statutes, Sections 116J.993 to 116J.995, the Apple Valley Economic Development Authority
("EDA") granted a business subsidy to Time Square Shopping Center II, LLP ("Time Square");
and
WHEREAS, the terms of the EDA's agreement with Time Square are set forth in the
Business Subsidy Agreement, dated June 27, 2012 ("Agreement"); and
WHEREAS, Time Square certified that it has met the job and wage goals set forth in
Section 2.5 of the Agreement; and
WHEREAS, no Event of Default, as defined in Section 7.1 of the Agreement, currently
exists; and
NOW, THEREFORE, BE IT RESOLVED, by the Board of Commissioners of the EDA
that it hereby forgives any obligation by Time Square to repay the business subsidy in
accordance with Article 5 of the Agreement.
ATTEST:
ADOPTED this 25 day of September, 2014.
Pamela J. Gackstetter, Secretary
Tom Goodwin, President
DRAFT
BUSINESS SUBSIDY AGREE NT
THIS BUSINESS SUBSIDY AGREEMENT ("Agreement") is made this 27Y of
1 , 2012, by and between the Apple Valley Economic Development Authority, a •
public body corporate and a political subdivision of the State of esota, and Time Square
Shopping Center II, LLP, a Minnesota limited liability partnership.
REAS, Time Square Shopping Center II, LLP owns two retail buildings that are
part of the Time Square Shopping Center and are located on real property legally described as
Lots 1, 3 and 4, Block 1, Levine Subdivision No. 2, Dakota County, Minnesota ("Property");
REAS, Time Square Shopping Center II, LLP desires to substantially rehabilitate
the buildings located on the Property in order to attract new tenants and create new jobs in the
City of Apple Valley;
EREAS, Time Square Shopping Center 11, LLP cannot the rehabilitative
improvements economically feasible i d would pass the actual costs of the improvements along
to its tenants leasing the Property without a subsidy;
s, in accordance with this Agreement, the Apple Valley Economic
Development Authority desires to subsidize the improvements, as herei er defined, in an
amount of up to $157,400.00 using pooled tax increment financing ("TIF") dollars from the TIF
district identified in Section 2.3 of this A
Agreement agree as follows:
ement; and
NOW, THEREFORE, in consideration of the mutual undertakings, the parties to this
TICLE 1
Definitions
Section 1.1-Definitionsin addition to the defined terms set forth throughout this Agreement, the
following terms are defined as follows:
"Act" means the Minnesota Business Subsidy Act, set forth in Minnesota Statutes Section
1161.993-.995and any successor statute.
"Benefit Date" means the date thelmprovements arecomplete. The "Benefit Date" shall
be certified by the EDA and the Recipientin subs . s tiaily the form set forth at Exhibit A.
"City" means the City of Apple Valley, a
substantially the form set forth in Exhibit B.
"Improvement Expenses" means the ac
incurred by Recipient for the Improvements.
"Parties" means the EDA and the Recipient, collectively.
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esota municipal corporation.
"Disbursement Date" means the date of the disbursement of the Loan by the EDA to the
Recipient.
"EDA" means the Apple Valley Economic Development Authority, a public body
corporate and a political subdivision of the State of Minnesota.
"Improvements" means the following improvements to the Property: (1) milling,
overlaying and spot repairing the existing parking lot located between the North and
South Buildings, • (2) constructing a new parking lot, (3) landscaping around the new
parking lot, (4) painting the rear side of the North Building, (5) constructing walls to
screen dumpsters utilized by the tenants in the North Building, and (6) related
improvements.
"Loan" means the funds disbursed by the EDA to Recipient for reimbursement of the
actual costs of the Improvements in an amount of up to One Hundred Fifty-Seven
Thousand Four Hundred and No/100 Dollars ($157,400.00).
"North Building" means the retail building located on that part of the Property legally
described as Lot 1, Block 1, Levine Subdivision No. 2, Dakota County, Minnesota.
"Note"me a the Promissory Note entered into between the EDA and the Recipient in
documented costs, expenses and fees
"Recipient" me T' e Square Shopping Center IT, LLP, a Minnesota limited liability
pa Ns erShip.
"South Building" means the retail building located on that part of the Property legally
described as Lots 3 and 4, Block 1, Levine Subdivision No. 2, Dakota County,
Minnesota.
•
TICLE
Business Subsidy
Section 2.1.Busin,ess Subsidy Requirements. The provisions of this Article establish the
requirements set forth in the Act (Minnesota Statutes Sections 116J.993-.995 and any successor
statute).
Section 21. Incorporation of the Act.Recipient acknowledges and agrees that the provisions of
the Act apply to this Agreement and are incorporated herein by reference.
Section 2.3.5ubsidy. The subsidy consists of the Loan provided to the Recipient. The funds for
the Loan shall consist of pooled dollars from Tax Increment District 13 in accordance with
Minnesota Statutes Section 469.1763, subdivision 2(a).
Section 2.4. Public Purposes. The public purposes and goals of the subsidy are to increase the
tax base of the City by increasing the value of the Property, to create jobs with a livable wageand
to enhance the character of the City's business districts.
Section 2.5.Goals. The measurable, specific and tangible goals for the subsidy are set forth as
follows (collectively referred to as "Goals"):Within two years of the date of this Agreement,
Recipient, in relation to the Improvements andior Property, shall create fifteen (15) new jobs that
pay an average wage of $30.00 per hour.
Section 2.6.Loan Repayment. If the Goals as set forth in Section 2.5are not satisfied, the
Recipient shall make payment to the EDA as required in Section 4.1.
Section 2.7.Necessity of Subsidy. The subsidy is needed because the Recipient cannot make the
Improvements economically feasible without the Loan.
Section 2.8.Commitment. The Recipient must continue operations in the City's jurisdiction for
at least five(5) years following the Benefit Date.
Section 2.9.0ther Financing. In addition to the assistance provided under this Agreement, the
Recipient has received or expects to receive as part of this project, the following financial
assistance from other "grantors" as defined in the Act: $78,700.00 from Dakota County
Community Development Agency, a public body corporate and politic ("CDA • t Funds").
Section 2.10.Reporting Requirements.
(a) Reporting Time Period.The Recipient shall provide to the EDA information
regarding the Goals for two years after the Benefit Date or until the Goals are met, whichever is
later.
3
(b) Reporting Form.Recipient shall u e its report on fo is s developed by the
esota Dep. 1 ent of Employment and Economic Development, purs t to Minn. &at, §
1161994, subd. 7.
1
(c) Reporting Documentation. The report must include:
(1)
(2)
(
(4)
(
(6)
(
(
(
(10)
1
The type, public purpose, and amount of subsidies;
The hourly wage of each job created with separate bands of wages;
The sum of the hourly wages and cost of health insurance provided by the
Recipientwith separate bands of wages;
The date the job and wage goals will be reached;
A statement of the Goalsand an update on achievement of those Goals;
The location of the Recipientprior to receiving the subsidy;
The number of employees who ceased to be employed by the Recipient
when the Recipientrelocated to become eligible for the subsidy;
The name and address of the parent corporation of theRecipient, if any;
A list of all financial assistance by all grantors for the Improvements; and
Any other information the EDA may request
(d) Submission Deadline and Penalty. The report must be submitted to the EDAno
later than March 1 of each year for the previous year. If the report is not submitted by March 1,
the EDA shall mail a warning to the Recipient wi • one week of the required submission date.
If, after 14 days of the pos k date of the warning, the Recipient fails to submit its report to the
EDA, the Recipient must pay to the EDA a penalty of $100.00 for each subsequent day until the
report is submitted. The maximum penalty shall not exceed $1,000.00,
TICLE 3
Fi cigg for Improvements
Section 3.1.Reci The Recipient si. commit not less $157,400.00 of equity
(exclusive of the Loan and other public financing) to be used for improvements within the City's
jurisdiction ("Recipient Funds"). The Recipient Funds and CDA Grant Funds shall be utilized to
cover alt Improvement Expenses prior to any request for reimbursement of Improvement
Expenses from the EDA.
Section 3.2.Use of Pooled TIF Funds. The Parties acknowledge that the EDA's authority to
disburse pooled TIF funds to the Recipient arises out of 1‘4•1 . Stat. § 469.176, subd. 4m, and
469.1763, subd. 2(a). Accordingly, the Recipient shall commence construction for the
Improvements before July 1, 2012 and shall satisfy all of the conditions set forth in Section 4.2
of this Agreement by November 16, 2012 in order for the EDA to disburse the Loan to the
Recipient prior to December 31, 2012.
Section 3.3.Permitted Costs. The EDA agrees to reimburse Recipient for the improvements
Expenses documented and verified by the EDA.
ARTICLE 4
TICLE
Loan_Forgiveness
5
Section 3.4.Prohibited Costs.No 'thstanding any provision in this Agreement to the eon'
the subsidyshall not be used for legal fees, broker fees, or similar costs.
Section 3.5.Swom Construction Statement. The Improvementsshall be completed in accordance
with a sworn construction statement set forth at Exhibit C, which is incorporated in to this
Agreement by reference.
Loan Terms and Conditions
Section 4.1.Basic Loan Terms. The principal amount of the Loan shall be equal to the
Improvements Expenses verified and approved by the EDA or One Hundred Fifty-Seven
Thousand Four Hundred and No/100 Dollars ($157,400.00), whichever is less. The Loan shall
bear interest at a rate of six percent (6%) per annum, and interest shall commence to accrue as of
the Disbursement Date and continue until the Loan is satisfied or paid in full. The Loan shall be
evidenced by the Note, the terms of which are incorporated fully herein by reference.Any and all
outstanding principal and interest is due and payable two(2) years after the Disbursement Date.
Section 4.2.1)isbursement of Loan.
(a) The Loan shall be disbursed in one payment to Recipient after the folio
conditions are met:
(1) Construction of the Improvements commences before July 1, 2012, as
required by . Stat. § 469.176, subd. 4m (2012);
(2) The Improvementsare complete;
(3) The Recipient has delivered and the EDA has approved the receipts,
invoices, etc. proving the improvement Expenses;
1'
(4) The Recipient has executed and delivered to the EDA the Note.
(b) Disbursement of the Loan shall be performed by a title insurance company
selected by EDA in EDA's sole discretion, in which case Recipient a ees to execute a
disbursing agreement with EDA and the title company and to comply with any and all additional
requirements of the title company in connection with disbursement of the Loan.
Section 5.1.Loan For Terms and Scheduleli Recipientmeets, or is on track to meet, as
determined in the EDA's sole discretion, the Goals set forth in Section 2.5 of this Agreement,
provides a sworn statement evidencing the same and no event of default existsas set forth in
Section 7.1 of this Agreement, the EDA shall forgive portions of the subsidy loan as follows:
(a) Wi • (30) days of the first • I'versary of the DisbursementDate, the EDA
shall forgive one-hall (1/2) of the principal balance of the Loan.
(b) Within (30) days of the second anniversary of the Disbursement Date, the
EDA shall forgive the remaining one-half (1/2) of the principal balance of the Loan.
Additional Re i
ARTICLE 6
Section 6.1.Acklitiorial Reporting Req_uirements. In addition to the reporting requirements set
forth in Section 2.10 of this Agreement, Recipient shall provide to the EDA information for
incorporation into any pro i ss reports, as required by any state or local government political
agency, to monitor implementation of this Agreement for compliance with state and local
guidelines.
Section 6.2.Nondiscrimination. The provisions of Minnesota Statutes Section 181.59, which
relates to civil rights and discrimination, shall be considered a part of this Agreement as though
ftilly set forth herein, and the Recipient shall comply with - h such provision throughout the
term of this Agreement.
Default
ientobli ations
TICLE
6
Section 6.3.Workers Compensation Insurance. The Recipient shall obtain and maintain workers
compensation insurance as required by Minnesota Statutes, Section 176.181, subd. 2.
Section 6.4.Assumption. of Improvement Expenses. The Recipient shall not shift or pass on to
the tenants now or hereafter located on the Property any Improvement Expenses for which the
EDA reimburses the Recipient or make up all or a part of the Loan.
Section 7.1.Events otDefault. The Recipient s be in default under this Agreement upon the
happening of any one or more of the following events:
(a) theRecipient fails to meet the any of the goals set forth in Section 2.5 of this
Agreement;
(b) the Recipient is in breach in any material respect, of any obligation or eement
under this Agreement (other than the job and wage requirements) and remains in breach in any
matetial respect for thirty (30) business days after written notice thereof to the Recipient by the
EDA;
(c) if any ma 'al covenant, w ty, or representation of the Recipient shall prove
to be untrue in any material respect, provided such covenant, warranty or representation of the
Recipient remains untrue in any material respect for
thereof to the Recipient by the EDA;
I 11
Section 7.2.Ri- ts and R m dies Ji-on Default.
7
(30) business days after written notice
(d) the Recipient fails to pay its debts as they become due, es an assiu Silent for
the benefit of its creditors, "ts in writing its inability to pay its debts as they become due, files
a petition under any chapter of the Federal B. uptcy Code or any similar law, state of federal,
now or hereafter existing, becomes "insolvent" as that term is generally defined under the
Federal B •tcy Code, files an answer admitting insolvency or inability to pay its debts as
they become due in any involuntary b. • ptcy case commenced against it, or fails to obtain a
dismissal of such case wi • sixty (60) days after its commencement or convert the case from
one chapter of the Federal Bankruptcy Code to another chapter, or be the subject of any order for
relief in such bankruptcy case, or be adjudged a b • pt or insolvent, or has a custodian, trustee,
or receiver appointed for it, or has any court take jurisdiction of its property, or any part thereof,
in any proceeding for the purpose of reorganization, arrangement, dissolution or liquidation, and
such custodian, trustee, or receiver is not discharged, or such jurisdiction is not relinquished,
vacated or stayed wi s sixty (60) days of the appointment;
(e) a final judgment is entered against the Recipient that the EDA reasonably deems
will have a material, adverse impact on the Recipient's ability to comply with the Recipient's
obligations under this Agreement;
(I) theRecipientfails to maintain its existence in good standing in the State of
Minnesota with the Minnesota Secretary of State;
(g) theRecipientfails to submit to the EDA a completed report as required by Section
2.10 in this Agreement;
(h) the Recipientsells, transfers, assigns, leases or otherwise disposes of any
improvements funded by the subsidy without first obtaining the EDA's written approval;
(i) theRecipient merges or consolidates with any other entity without the prior
written approval of the EDA; or
(j) there is a loss, theft, subs tial dges, or destruction of all or any part of the
Improvements funded by the subsidy that is not remedied to the EDA's satisfaction wi sixty
(60) business days after written notice thereof by the EDA to the Recipient
(a) In the event of default, the EDAshall have the right, at its option, and without
demand or notice, which is hereby waived, to declare all or any part of the Loan, less any
principal forgiven in accordance with Section 5.1 of this Agreement, ediately due and
payable.
(b) The Recipient agrees in the event of a default to •• e the Collateral available to
the EDA. If any notice of sale, disposition or other intended action by the EDA is required by
law to be given to the Recipient, such notice shall be deemed reasonably and properly given if
*led to the Recipient at least fifteen (1 5) days before such sale, disposition or other intended
action.
(c) Notwithstan.4 this section, the EDA shall have all rights and remedies available
to it under any other provision of this Agreement or the Act.
(d) In addition to the rights and remedies granted in this Agreement, the EDA shall
have all of the rights and remedies available under the Uniform Commercial Code and any other
applicable law.
(e) The Recipient agrees to pay the costs and expenses incurred by the EDA in
enforcing its rights under this Agreement, including, but not limited to, the EDA' s attorneys'
fees.
Section 7.3.Waiver. The failure or delay of the EDA to take any action or assert any right or
remedy, or the partial exercise by the EDA of any right or remedy shall not be deemed to be a
waiver of such action, right or remedy if the circ creating such action, right or remedy
continue or repeat.
(b)
TICLE
Reci s Tents Acknowkd u u ents Re • resentations and Warranties
Section 8.1.Acknowledgements. The Recipienthereby acknowledges that:
(a) No g contained in this Agreement, nor any act of the EDA, shall be deemed or
construed to create between the EDA and the Recipient any relationship (except as borrower and
lender), including, but not limited to, that of principal. and agent, limited or general p ership or
joint venture.
There are no other beneficiaries to this subsidy other than Recipient.
Section 8.2.Representations and Wan Recipientbereby represents and ts that:
(a) Recipientdoes not appear on the • esota Dep m ent of Employment and
Economic Development's list of recipients that have failed to ineet the terms of a business
subsidy agreement.
8
(b) Recipienthas reviewed this Agreement with an attorney, accountant, financial
advisor or other appropriate professional and fully understands the legal and tax implications of
this Agreement.
(c) To the best of the Recipient's knowledge, no member, officer, or employee of the
EDA, or its officers, employees, designees, or agents, who exercises or has exercised any
functions or responsibilities with respect to the Improvements during his or her tenure shall have
any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to
be performed in connection with the Improvements or in any activity, or benefit there from,
which is part of the Improvements.
(d) The Improvementsshall be carried out as promised to the EDA.
(e) To the best of the Recipient's knowledge, it has obtained or will obtain all federal,
state, and local government approvals, reviews and permits required by law to be obtained in
connection with the Improvements and has wide • en and completed or will undertake and
complete all actions necessary for it to lawfully execute this Agreement
(f) Recipienthas fully complied with all applicable local, state and federal laws
g to its business and will continue such compliance throughout the term of this
Agreement. ‘ gre ement. If at any time notice of noncompliance is received by the Recipient, the Recipient
agrees to take any necessary action to comply with the local, state or federal law in question.
Section 9.I.Release and indemnification Covenants.Recipient i ees to protect and defend the
EDA and its officers, employees, designees and agents, now and forever, and further agrees to
hold the aforesaid harmless from any claim, demand, suit, action, or other proceeding
whatsoever by any person or entity whatsoever arising or purportedly arising from the
improvements to the Property.
Section 9.2 i unity. No t g in this Agreement shall be construed as a waiver of the EDA of
any immunities, defenses or other limitations on liability to which the EDA is entitled by law.
Section 9.3.Modifications. This Agreement may be modified solely through written
amendments hereto executed by the Recipient and the EDA.
(a) as to the EDA:
Section 9.4.Notices and Demands. Any notice, demand or other communication under this
Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched
by U.S. Mail or delivered personally to:
(b) as to the Recipient:
TICLE
Miscellaneous Provisions
Thomas Lawell, Executive Director
Apple Valley Municipal Center
7100 147 St. W.
Apple Valley, Mi esota 55124
Robert Levine
5005 Old Cedar Lake Rd.
St. Louis Park, Minnesota 55416
9
or at such other address with respect to any party as that party may, from e to t' e, designate
in writing and forward to the other party as provided in this section.
Section 9.53inding Effect. The covenants and agreements in this Agreement shall bind and
benefit the heirs, executors, as strators, successors and assigns of the Parties.
Section 9.6.Merger. None of the provisions of this Agreement are intended to or shall be
merged by reason of any deed transferring any interest in the Property and any such deed shall
not be deemed to affect or impair the provisions and covenants of this Agreement.
Section 9.7.Choice of Law and Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota without regard to its conflict of
laws provisions. Any disputes, controversies or claims arising out of this Agreement shall be
heard in the state or federal courts of Minnesota, and all parties to this Agreement waive any
objection to the jurisdiction of these courts, whether based on convenience or otherwise.
Section 9.8.Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall constitute one and the same instrument.
Section 9.9.}jjjpg.The P es agree the headings and sub-headings used in this Agreement
are solely for convenience of reference, are no part of this Agreement, and are not be considered
in construing or interpreting this Agreement.
Section 9.10.Entire Agreement This Agreement, with the exhibits hereto, constitutes the entire
eement between the Parties pertaining to its subject matter and it supersedes all prior
contemporaneous agreements, representations and understandings of the Parties pertaining to the
subject matter of this Agreement.
Section 9.11.Separability. Wherever possible, each provision of this A moat and each related
document shall be interpreted so that it is valid under applicable law. If any provision of this
Agreement or any related document is to any extent found invalid by a court or other government
entity of competent jurisdiction, that provision shall be ineffective only to the extent of such
invalidity, without invalidating the remainder of such provision or the remaining provisions of
this Agreement or any other related document.
IN WITNESS ERBOF the P. % es hereto have caused this Agreement to be duly executed
and delivered this day of , 2012.
der of page intentionally blank"
10
a
APPLE VALLEY ECONOMIC DEVELOP
AUTHORITY, a public body corporate and a
political subdivis'on of the State of Minnesota
11
Severson
s: President
By: Thomas Lawe
Its: Executive Director
THIS INSTRUMENT WAS DRAFTED BY:
DOUGHERTY, MOLENDA, SOLFEST, 11 LS & BAUER P.A.
7300 West 147 Street, Suite 600
Apple Valley, Minnesota 55124
(952) 432-3136
(MGD: #66-32620)
SHOPPING CENTER II, LIP,
T I SQU
aMinnesota limited liability partnership
ofit,*( aiide
By:
Its: t11#b PAliztvt--
1
NT
EXHIBIT A
BENEFIT DATE CERTIFICATION
Pursuant to the Business Subsidy Agreement, made between Apple Valley Economic
Development Authority and Time Square Shopping Center II, LLP, (hereinafter, the "Parties")
on the day of , 2012, Time Square Shopping Center II, LLP, was
approved for a subsidy in an amount of up to One Hundred Fifty-Seven Thousand Four Hundred
and No/100 Dollars ($157,400.00) from Apple Valley Economic Development Authority.
This subsidy is subject to the terms and conditions set forth in the aforementioned
Business Subsidy Agreement.
IN WITNESS WHEREOF, the Parties do hereby acknowledge the Benefit Date as
defined in Minnesota Statutes § 116J.993, Subd. 2, is , 20 (the "Benefit
Date").
APPLE VALLEY ECONOMIC DEVELOPMENT
AUTHORITY
By: Larry S. Severson
Its: President
By: Thomas Lawell
Its: Executive Director
TIME SQUARE SHOPPING CENTER II, LLP,
a Minnesota limited liability partnership
By:
Its:
, 2012
[Disbursement Date]
EXHIBIT B
PROMISSORY NOTE
Time Square Shopping Center II, LLP, a Minnesota limited liability partnership (the
"Maker"), for value received, hereby promises to pay to the Apple Valley Economic
Development Authority, a public body corporate and a political subdivision of the State of
Minnesota (the "EDA"), or its assigns (the EDA and any assigns are hereinafter referred to as the
"Holder"), at its designated principal office or such other place as the Holder may designate in
writing, the principal sum of One Hundred Fifty-Seven Thousand Four Hundred and 00/100
Dollars ($157,400.00) or so much thereof as may be advanced under this Note, with interest as
hereinafter provided. The principal of this Note is payable as follows:
1. The Loan shall bear interest at a rate of six percent (6%) per annum and interest
shall commence to accrue as of/INSERT the "Disbursement Date."'
2. Any outstanding principal and interest is due and payable on the [INSERT second
(2nd) anniversary of the Disbursement Date.]
3. This Note is given pursuant to the Business Subsidy Agreement entered into by
the Maker and the EDA on , 2012 (the "Loan Agreement"), and
is secured by a security agreement of even date herewith (the "Security Agreement") covering
certain property located in Dakota County, Minnesota. In the event any such security is found to
be invalid for whatever reason, such invalidity shall constitute an event of default hereunder.
All of the agreements, conditions, covenants, provisions, and stipulations contained in the
Loan Agreement, or any instrument securing this Note 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. It is agreed
that time is of the essence of this Note. If a default occurs under the Loan Agreement, or any
instrument securing this Note, then the Holder of this Note may at its right and option, without
notice, declare immediately due and payable the principal balance of this Note, together with any
costs of collection including attorney fees incurred by the Holder of this Note in collecting or
enforcing payment hereof, whether suit be brought or not, and all other sums due hereunder, or
under any instrument securing this Note. The Maker agrees that the Holder of this Note may,
without notice to the Maker of this Note and without affecting the liability of the Maker of this
Note, accept additional or substitute security for this Note, or release any security or any party
liable for this Note or extend or renew this Note.
4. The remedies of the Holder of this Note as provided herein, and in the Loan
Agreement, or any other instrument securing this Note, shall be cumulative and concurrent and
may be pursued singly, successively or together and, at the sole discretion of the Holder of this
Note, may be exercised as often as occasion therefore shall occur; and the failure to exercise any
such right or remedy shall in no event be construed as a waiver or release thereof.
2
The Holder of this Note 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 writing and signed
by the Holder of this Note and then only to the 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 remedy as to a subsequent event. This Note may not be amended, modified, or
changed except only by an instrument in writing signed by the party against whom enforcement
of any such amendment, modifications, or change is sought.
5 This Note shall be governed by and construed in accordance with the laws of the
state of Minnesota without regard to its conflict of laws provisions. Any disputes, controversies,
or claims arising out of this Note shall be heard in the state or federal courts of Minnesota, and
all parties to this Note waive any objection to the jurisdiction of these courts, whether based on
convenience or otherwise.
6. This Note, with the Loan, Agreement, constitutes the entire Note between the
parties pertaining to its subject matter and it supersedes all prior contemporaneous Notes,
representations, and understandings of the parties pertaining to the subject matter of this Note.
7. Wherever possible, each provision of this Note and each related document shall
be interpreted so that it is valid under applicable law. If any provision of this Note or any related
document is to any extent found invalid by a court or other governmental entity of competent
jurisdiction, that provision shall be ineffective only to the extent of such invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Note or any
other related document.
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 performed in regular and due form as required by law.
IN WITNESS WHEREOF, the Maker has caused this Note to be duly executed as of
the day of , 2012.
TIME SQUARE SHOPPING CENTER II, LLP
By:
By:
3
Its:
Its:
6.66
66
660.0
4,60
666
city of App
Valley
ITEM:
EDA MEETING DATE:
SECTION:
5A
September 25, 2014
Regular
PROJECT NAME:
Parkside Village Gabella
PROJECT DESCRIPTION
Request for public hearing regarding proposed transfer of ownership of Gabella property to IMH
Gabella, LLC; consideration of Partial Assignment of Development Agreements to IMH Gabella,
LLC; and consent to mortgages on the Parkside Village Gabella property (north of Kelley Park) and
the future Parkside Village Galante property (east of Galaxie Avenue).
STAFF CONTACT:
Michael Dougherty, City Attorney
Ron Hedberg, Finance Director
Bruce Nordquist, Community Development Dir.
Kathy Bodmer, AICP, Planner
APPLICANT:
IMH Special Asset NT 175 — AVN, LLC and Titan
Development I, LLC
DEPARTMENT/DIVISION:
Legal
Finance
Community Development
PROJECT NUMBER:
PC14-29-ZFB
Proposed Action(s)
1. Hold public hearing to consider proposed transfer of ownership of Gabella property.
2. Approve Resolution Consenting to Partial Assignment of Development Agreements and
Authorizing Execution of Consent.
3. Approve Resolution consenting to Mortgage on Gabella property.
4. Approve Resolution consenting to Mortgage on Galante property.
Project Summary/Background
The owners of the Parkside Village development, IMH Special Asset NT 175 — AVN, LLC and Titan
Development I, LLC, are moving forward with the development of the 196-unit Parkside Village Gabella
multiple family building at 6904 Gabella St., north of Kelley Park. IMH Special Asset NT 175-AVN,
LLC, and Titan Development 1, LLC want to create a new ownership group, IMH Gabella, LLC, to
manage the financing and construction of the Gabella project. The property owners are also in the process
of securing mortgage financing for the construction of the Gabella building.
The Parkside Village development is subject to an approved Business Subsidy Agreement which requires
the Apple Valley Economic Development Authority (EDA) and City Council review and consent to any
transfer of ownership, after the EDA conducts a public hearing. In addition, the property is subject to a
Development Assistance Agreement, which requires the City and EDA consent to any mortgages to fund
construction of the project. The attached agreements accomplish the following:
1. Consents to the transfer of ownership of the Gabella property to IMH Gabella, LLC.
2. Assigns development agreements to the new LLC, requiring the new entity to perform all of
obligations of the agreements previously executed by the City, EDA and owners as they relate to
the Gabella property, including:
a. Amended and Restated Development Assistance Agreement
b. Business Subsidy Agreement
3
c. Phase I Assessment Agreement
d. Planned Development Agreement
e. Development Agreement, and
f. Private Installation Agreement
3. Consents to mortgages on the Gabe lla and Galante properties to allow the owners to obtain the
funding necessary to construct the Gabe lla project.
With these approvals, it is anticipated that the property owner will be able to obtain construction financing
and begin construction of the Gabe lla building in early October.
Previous City Council and Planning Commission Actions
On July 10, 2014, the City Council and EDA approved the construction of the Parkside Village
development in two phases. This required re-authorization and approvals of several items that were initially
approved by the City Council and EDA on January 24, 2013. The approvals sought for this request
would make no changes to the previously approved Gabe lla building design or layout.
Budget Impact
On August 28, 2014, the property owner paid Dakota County $1,163,486.28 to satisfy the outstanding
balance of the Confession of Judgment (COJ) on the four Gabe lla development parcels. The COJ was
executed between the property owner and Dakota County to address delinquent property taxes and
outstanding special assessments. $698,966.51 of the COJ payment will be paid to the City for delinquent
special assessment principal and interest.
Attachment(s)
1. Location Map
2. Gabe lla Site Plan
3. Gabe lla South Elevation
4. Gabe lla West Elevation
5. Draft Partial Assignment of
Development Agreements and
Consent
6, Draft Mortgage
7. Draft Resolution Consenting to Partial
Assignment of Development Agreements and
Authorizing Execution of Consent
8. Draft Resolution Consenting to Mortgage on
Gabe lla property
9. Draft Resolution Consenting to Mortgage on
Galante property
LIBRARY
KWIK TRIP
MINNESOTA AUTO
SERVICE CENTER
HILLCREST 2ND
M&I
U-HAUL STORAGE
BANK
DEA SUBSTATIONPUBLIC STORAGE
CVS
MARATHON
DISCOUNT TIRE
GALAXIE
OFF. BLDGABRA
HARALSON BLDG.
FRONTIER
HOME DEPOT
Gabella Building
FORD
LA FITNESS
Phase I - 196 Units
TRUCK
CENTER
CULVER'S
KELLEY
PARK
GRANDSTAY
HOTEL
GALAXIE
AND CONFERENCE
COMMONS
KELLEY
PARK
SHOPS
ENJOY!
REMAX
PARKSIDE VILLAGE
µ
LOCATION MAP
^
pic
pic
pic
APPLE VALLEY ECONOMIC DEVELOPMENT AUTHORITY
RESOLUTION NO. EDA -14-
A RESOLUTION CONSENTING TO PARTIAL ASSIGNMENT OF
DEVELOPMENT AGREEMENTS AND AUTHORIZING EXECUTION OF CONSENT
WHEREAS, IMH Special Asset NT 175 — AVN, LLC, an Arizona limited liability
company, ( "IMH ") desires to convey property described as Lot 1, Block 1, PARKSIDE
VILLAGE GABELLA, Dakota County, Minnesota, and assign certain agreements to
IMH Gabella, LLC, a Delaware limited liability company, all as described in the Partial
Assignment of Development Agreements, a copy of which is attached to this Resolution (the
"Assignment "); and
WHEREAS, on September 25, 2014, the EDA conducted a public hearing regarding the
proposed conveyance; and
WHEREAS, the EDA finds that it is in the best interest of the City and its residents that
the EDA consent to the Assignment;
NOW, THEREFORE, BE IT RESOLVED, by the Board of Commissioners of the EDA
that it consents to the Assignment; and
BE IT FURTHER RESOLVED, by the Board of Commissioners of the EDA, that the
President and Secretary of the EDA are authorized to execute the Consent of the Authority
attached to the Assignment.
ATTEST:
ADOPTED this day of , 2014.
Pamela J. Gackstetter, Secretary
Tom Goodwin, President
PARTIAL ASSIGNMENT OF DEVELOPMENT AGREEMENTS
THIS PARTIAL ASSIGNMENT OF DEVELOPMENT AGREEMENTS (this
"Agreement") is made and entered into as of September , 2014, (the "Effective Date"),
by and between IMH SPECIAL ASSET NT 175-AVN, LLC, an Arizona limited liability
company ("Assignor") and IMH GABELLA, LLC, a Delaware limited liability company
("Assignee").
RECITALS
Assignor has, by documents of even date herewith, conveyed to Assignee, the real
property located in Apple Valley, Dakota County, Minnesota, legally described on
Exhibit A attached hereto and made a part hereof (the "Property").
The Property is burdened and benefitted by those certain development agreements and
other governmental incentive agreements listed and described on Exhibit B attached
hereto and made a part hereof (collectively, the "Development Agreements").
Assignee intends to construct and develop certain improvements on the Property.
Assignor desires to assign to Assignee (which is an affiliate of Assignor) that portion of
Assignor's right, title and interest in, to and under the Development Agreements relating
to the Property and Assignee desires to accept such assignment and assumes and agrees
to perform all of such obligations of Assignor under the Development Agreement relating
to the Property arising from and after the Effective Date, in accordance with its terms.
NOW THEREFORE, in consideration of One Dollar ($1.00) and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor and
Assignee hereby agree as follows:
1.) Recitals. The foregoing recitals are correct and are incorporated herein.
2.) Assignment. Assignor hereby transfers, assigns and conveys to Assignee that
portion of Assignor's right, title and interest in, to and under the Development Agreements
relating to the Property (the "Property Rights").
3.) Acceptance. Assignee hereby accepts the assignment of the Property Rights and
hereby assumes all of the rights, obligations and liabilities of Assignor with regard to the
Property Rights arising from and after the Effective Date and agrees, for the benefit of Assignor,
to perform, observe, keep and comply with all the terms, covenants, conditions, provisions and
agreements concerning the Property Rights on the part of Assignor thereunder to be performed,
observed, kept and complied with from and after the Effective Date.
4.) Counterparts. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Facsimile or email (PDF format) signatures shall be deemed and
treated as originals.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the date first written above.
STATE OF ARIZONA
COUNTY OF MARICOPA
Signature
ASSIGNOR:
IMH SPECIAL ASSET NT 175-AVN, LLC
By: IMH Financial Corporation,
a Delaware corporation
By:
Name:
Its:
ACKNOWLEDGMENT
On September , 2014, before me, Christie L. Wilmot, a Notary Public in and for the State
of Arizona, personally appeared Lawrence D. Bain, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity upon behalf of which Lawrence D. Bain acted,
executed the instrument.
(Space above for official notarial seal)
ASSIGNEE:
IMH GABELLA, LLC,
a Delaware limited liability company
By: Southwest Acquisitions, LLC,
a Delaware limited liability company
its sole member
By: IMH Special Asset NT 175-AVN, LLC,
an Arizona limited liability company
its manager
STATE OF ARIZONA
COUNTY OF MARICOPA
Signature
By: IMH Financial Corporation,
a Delaware corporation
its sole member
By:
Name:
Title:
ACKNOWLEDGMENT
On September , 2014, before me, Christie L. Wilmot, a Notary Public in and for the State of
Arizona, personally appeared Lawrence D. Bain, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity upon behalf of which Lawrence D. Bain acted,
executed the instrument.
(Space above for official notarial seal)
THIS INSTRUMENT WAS DRAFTED BY:
Larkin Hoffman Daly & Lindgren Ltd.
1500 Wells Fargo Plaza
7900 Xerxes Avenue South
Minneapolis, Minnesota 55431-1194
(952) 835-3800 (RNB)
EXHIBIT A
Legal Description of the Property:
Lots 1, 2 and 3, Block 2, and Lot 1, Block 3, THE LEGACY OF APPLY VALLEY NORTH,
Dakota County Minnesota, together with that portion of Fontana Trail vacated by the City on
January 35, 2013, to be platted as:
Lot 1, Block 1, PARKSIDE VILLAGE GABELLA, Dakota County, Minnesota.
EXHIBIT B
List of Development Agreements:
1. Amended and Restated Development Assistance Agreement by and among Assignor, the
City of Apple Valley (the "City") and The Apple Valley Economic Development
Authority, Minnesota (the "Authority") dated August 18, 2014 and recorded on
as Document No. (the "Development Assistance
Agreement").
2. Business Subsidy Agreement by and between Assignor and the Authority dated July 10,
2014 and recorded on as Document No. (the
"Business Subsidy Agreement").
3. Phase I Assessment Agreement by and between Assignor and the City dated July 10,
2014 and recorded on as Document No.
4. Planned Development Agreement, Parkside Village-Gabella, Parkside Village-Galante by
and between Assignor and the City dated July 10, 2014 and recorded on
as Document No.
5. Development Agreement between Assignor and the City dated July 10, 2014 and
recorded on as Document No.
6. Agreement for Private Installation of Improvements by and between Assignor and the
City dated January 24, 2013, as amended by that certain Amendment to Agreement for
Private Installation of Improvements between the City and Assignor dated July 10, 2014
and recorded on as Document No.
CONSENT OF THE CITY
Pursuant to Sections 8.2 and 10.9 of the Development Assistance Agreement and Section
2.8 of the Business Subsidy Agreement, the City of Apple Valley, Minnesota hereby consents to:
(i) the conveyance of the Property to Assignee; (ii) the forgoing Partial Assignment of
Development Agreements; and (iii) the assignment by Assignor to Assignee of all right, title and
interest of Assignor in and to the Property Rights.
STATE OF MINNESOTA )
) ss.
COUNTY OF
CITY OF APPLE VALLEY, MINNESOTA
By:
Its: Mayor
By:
Its: City Clerk
The foregoing instrument was acknowledged before me this day of
, 2014, by and , the Mayor and
the City Clerk, respectively, of the City of Apple Valley, Minnesota.
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
4847-6305-8206, v. 5
CONSENT OF THE AUTHORITY
Pursuant to Sections 8.2 and 10.9 of the Development Assistance Agreement and Section
2.8 of the Business Subsidy Agreement, the Apple Valley Economic Development Authority,
Minnesota hereby consents to: (i) the conveyance of the Property to Assignee; (ii) the forgoing
Partial Assignment. of Development Agreements; and (iii) the assignment by Assignor to
Assignee of all right, title and interest of Assignor in and to the Property Rights.
APPLE VALLEY ECONOMIC DEVELOPMENT
AUTHORITY, MINNESOTA
By:
Its: President
By:
Its: Secretary
The foregoing instrument was acknowledged before me this day of
, 2014, by and , the
President and the Secretary, respectively, of the Apple Valley Economic Development Authority,
Minnesota.
Notary Public
APPLE VALLEY ECONOMIC DEVELOPMENT AUTHORITY
RESOLUTION NO. EDA -14-
A RESOLUTION CONSENTING TO MORTGAGE ON GABELLA PROPERTY
WHEREAS, pursuant to Article VII of the Amended and Restated Development
Assistance Agreement (the "Agreement ") by and among the Apple Valley Economic
Development Authority (the "Authority "), the City of Apple Valley (the "City ") and IMH
Special Asset NT 175 -AVN, LLC, (the "Developer "), the Developer has requested prior written
approval to grant a mortgage, a copy of which is attached hereto, (the "Mortgage ") on property
legally described as Lot 1, Block 1, PARKSIDE VILLAGE GABELLA (the "Gabella Property ")
for the purpose of obtaining funds to complete the Minimum Improvements on the Gabella
Property; and
WHEREAS, the EDA finds that it is in the best interest of the City and its residents that
the EDA consent to the Mortgage;
NOW, THEREFORE, BE IT RESOLVED, by the Board of Commissioners of the EDA
that it consents to the Mortgage.
ATTEST:
ADOPTED this day of , 2014.
Pamela J. Gackstetter, Secretary
Tom Goodwin, President
ATTEST:
APPLE VALLEY ECONOMIC DEVELOPMENT AUTHORITY
RESOLUTION NO. EDA -14-
A RESOLUTION CONSENTING TO MORTGAGE ON GALANTE PROPERTY
WHEREAS, pursuant to Article VII of the Amended and Restated Development
Assistance Agreement (the "Agreement ") by and among the Apple Valley Economic
Development Authority (the "Authority "), the City of Apple Valley (the "City ") and IMH
Special Asset NT 175 -AVN, LLC, (the "Developer "), the Developer has requested prior written
approval to grant a mortgage, a copy of which is attached hereto, (the "Mortgage ") on property
legally described as follows:
Lot 1, Block 7 and Lot 1, Block 8, THE LEGACY OF APPLE VALLEY NORTH,
Dakota County, Minnesota, together with that portion of Fortino Street vacated by the
City on January 25, 2013
(the "Galante Property ") for the purpose of obtaining funds to complete the Minimum
Improvements on the property legally described as Lot 1, Block 1, PARKSIDE VILLAGE
GABELLA, Dakota County, Minnesota (the "Gabella Property "); and
WHEREAS, the EDA finds that it is in the best interest of the City and its residents that
the EDA consent to the Mortgage;
NOW, THEREFORE, BE IT RESOLVED, by the Board of Commissioners of the EDA
that it consents to the Mortgage.
ADOPTED this day of , 2014.
Pamela J. Gackstetter, Secretary
Tom Goodwin, President
THIS INSTRUMENT PREPARED BY
AND WHEN RECORDED, RETURN
TO:
Kevin A. Sullivan, Esq.
Winstead PC
500 Winstead Building
2728 N. Harwood Street
Dallas, Texas 75201
meanings:
TO BE RECORDED IN THE
REAL PROPERTY RECORDS OF
DAKOTA COUNTY, MINNESOTA
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE MAXIMUM
PRINCIPAL AMOUNT OF THE INDEBTEDNESS SECURED BY THIS MORTGAGE
IS $24,000,000.00 UNDER CHAPTER 287 OF MINNESOTA STATUTES, EXCLUDING
ANY AMOUNTS CONSTITUTING "INDETERMINATE AMOUNTS" UNDER MINN.
STAT. § 287.05, SUBD. 5, AND EXCLUDING AMOUNTS THAT MAY BE ADVANCED
BY MORTGAGEE IN PROTECTION OF THE MORTGAGED PROPERTY, THE LIEN
OF THIS MORTGAGE AND THE OTHER LOAN DOCUMENTS PURSUANT TO THE
TERMS OF THIS MORTGAGE OR THE OTHER LOAN DOCUMENTS.
THIS MORTGAGE, SECURITY AGREEMENT, AND FIXTURE FINANCING
STATEMENT (herein referred to as the "Lien Instrument"), is entered into as of September ,
2014, by IMH GABELLA, LLC, a Delaware limited liability company, as grantor for all
purposes hereunder ("Borrower"), whose mailing address for notice hereunder is c/o IMH
Financial Corporation, 7001 N. Scottsdale Road, Suite 2050, Scottsdale, Arizona 85253, to
BANK OF THE OZARKS ("Lender") whose address is 8201 Preston Road, Suite 700, Dallas,
Texas 75225.
MORTGAGE, SECURITY AGREEMENT, AND
FIXTURE FINANCING STATEMENT — Page 1
49265-356/Gabe Ila at Parkside
MORTGAGE, SECURITY AGREEMENT, AND
FIXTURE FINANCING STATEMENT
WITNESSETH:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used herein, the following terms shall have the following
Assignment of Rents: That certain Assignment of Rents and Revenues of even date
herewith from Borrower to Lender.
Borrower: The individual or entity described as Borrower in the initial paragraph of this
Lien Instrument and any and all subsequent owners of the Mortgaged Property or any part
thereof (without hereby implying Lender's consent to any Disposition of the Mortgaged
Property).
Code: The Uniform Commercial Code, as amended from time to time, in effect in the
state in which the Mortgaged Property is situated.
Construction Contracts: Collectively, the right title and interest of Borrower in any and
all contracts, subcontracts and agreements, written or oral, between Borrower and any other
party, and between parties other than Borrower in any way relating to any restoration,
renovation, expansion, repair or construction of all or any portion of the Improvements or the
supplying of material (especially fabricated or otherwise), labor, supplies or other services
therefor.
Contracts: All of the right, title, and interest of Borrower, including equitable rights, in,
to, and under any and all: (i) contracts for the purchase and/or sale of all or any portion of the
Mortgaged Property, whether such contracts are now or at any time hereafter existing, including
but without limitation, any and all earnest money or other deposits escrowed or to be escrowed
or letters of credit provided or to be provided by the purchasers under the contracts, including all
amendments and supplements to and renewals and extensions of the contracts at any time made,
and together with all payments, earnings, income, and profits arising from the sale of all or any
portion of the Mortgaged Property or from the contracts and all other sums due or to become due
under and pursuant thereto and together with any and all earnest money, security, letters of credit
or other deposits under any of the contracts; (ii) contracts, licenses, permits, and rights relating to
living unit equivalents or other entitlements with respect to water, wastewater, and other utility
services whether executed, granted, or issued by a Person, which are directly or indirectly related
to, or connected with, the development, ownership, maintenance or operation of the Mortgaged
Property, whether such contracts, licenses, and permits are now or at any time thereafter existing,
including without limitation, any and all rights of living unit equivalents or other entitlements
with respect to water, wastewater, and other utility services, certificates, licenses, zoning
variances, permits, and no-action letters from each Governmental Authority required: (a) to
evidence compliance by Borrower and all improvements constructed or to be constructed on the
Mortgaged Property with all legal requirements applicable to the Mortgaged Property; (b) for the
construction and/or development of any improvements on the Mortgaged Property or
rehabilitation thereof, if applicable (c) to develop and/or operate the Mortgaged Property as a
commercial and/or residential project, as the case may be; (iii) financing arrangements relating to
the financing of or the purchase of all or any portion of the Mortgaged Property by future
purchasers; (iv) economic incentives or similar agreements or understandings; (v) agreements
relating in any way to the construction, development or rehabilitation of the Land or
Improvements or provision of materials therefor including, without limitation, all Construction
Contracts; (vi) contracts with architects or engineers or others for the preparation or provision of
any Plans, including all amendments and supplements to and renewals and extensions of such
contracts at any time made; and (vii) all other contracts which in any way relate to the use,
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enjoyment, occupancy, operation, maintenance, repair, management or ownership of the
Mortgaged Property (save and except any and all Leases).
Default Interest Rate: The rate of interest specified in the Note to be paid by Borrower
from and after the occurrence of an Event of Default but in no event in excess of the maximum
rate of interest which may be contracted for, charged, taken, received or reserved in accordance
with applicable law.
Disposition: Any sale, lease (except as expressly permitted pursuant to the Loan
Documents), exchange, assignment, conveyance, transfer, pledge, collateral assignment, trade or
other disposition of all or any part of the Mortgaged Property (or any interest therein) or all or
any part of the beneficial ownership interest, held directly or indirectly, in Borrower (if Borrower
is a corporation, limited liability company, limited liability partnership, general partnership,
limited partnership, joint venture, trust, or other type of business association or legal entity).
Environmental Indemnity Agreement: That certain Environmental Indemnity Agreement
of even date herewith executed by Borrower and Guarantor for the benefit of Lender.
Event of Default: Any happening or occurrence described in Article VI hereof.
Fixtures: All materials, supplies, equipment, systems, apparatus, and other items now
owned or hereafter acquired by Borrower and now or hereafter attached to, installed in, or used
in connection with (temporarily or permanently) any of the Improvements or the Land, which are
now owned or hereafter acquired by Borrower and are now or hereafter attached to the Land or
the Improvements, including, but not limited to, any and all partitions, dynamos, window screens
and shades, draperies, rugs and other floor coverings, awnings, motors, engines, boilers,
furnaces, pipes, cleaning, call and sprinkler systems, fire extinguishing apparatus and equipment,
water tanks, swimming pools, heating, ventilating, refrigeration, plumbing, laundry, lighting,
generating, cleaning, waste disposal, transportation (of people or things, including but not limited
to, stairways, elevators, escalators, and conveyors), incinerating, air conditioning and air cooling
equipment and systems, gas and electric machinery, appurtenances and equipment, disposals,
dishwashers, refrigerators and ranges, recreational equipment and facilities of all kinds, lighting,
traffic control, waste disposal, raw and potable water, gas, electrical, storm and sanitary sewer,
telephone and cable television facilities, and all other utilities whether or not situated in
easements, together with all accessions, appurtenances, replacements, betterments, and
substitutions for any of the foregoing and the proceeds thereof.
Galante Parcel: That certain approximately 2.65-acre undeveloped parcel of real property
more particularly described in Exhibit A.
Governmental Authority: Any and all applicable courts, boards, agencies, commissions,
offices or authorities of any nature whatsoever for any governmental unit (federal, state, county,
district, municipal, city or otherwise) or for any quasi-governmental units (development districts
or authorities).
Guarantor (individually and/or collectively, as the context may require): Those Persons,
if any, designated as Guarantor in the Guaranty.
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Guaranty (individually and/or collectively, as the context may require): That or those
instruments of guaranty, if any, now or hereafter in effect, from Guarantor to Lender
guaranteeing the repayment of all or any part of the Indebtedness, the satisfaction of, or
continued compliance with, all or any portion of the Obligations, or both.
Improvements: Any and all improvements of any kind or nature all as more particularly
described in the Plans, and any and all additions, alterations, betterments or appurtenances
thereto, now or at any time hereafter situated, placed or constructed upon the Land or any part
thereof, including, without limitation, that certain 196-unit apartment building to be constructed
on the Land.
Indebtedness: (i) The principal, interest or other sums evidenced by the Note or the Loan
Documents; (ii) any other amounts, payments or premiums payable under the Loan Documents;
(iii) such additional or future sums (whether or not obligatory), with interest thereon, as may
hereafter be borrowed or advanced from Lender, its successors or assigns, by the then record
owner of the Mortgaged Property, when evidenced by a promissory note which, by its terms, is
secured hereby (it being contemplated by Borrower and Lender that such future indebtedness
may be incurred); (iv) any and all other indebtedness, obligations and liabilities of any kind or
character of Borrower to Lender, now or hereafter existing, absolute or contingent, due or not
due, arising by operation of law or otherwise, direct or indirect, primary or secondary, joint,
several, joint and several, fixed or contingent, secured or unsecured by additional or different
security or securities, including indebtedness, obligations and liabilities to Lender of Borrower as
a member of any partnership, joint venture, trust or other type of business association or other
legal entity, and whether incurred by Borrower as principal, surety, endorser, guarantor,
accommodation party or otherwise; and (v) any and all renewals, modifications, amendments,
restatements, rearrangements, consolidations, substitutions, replacements, enlargements and
extensions thereof, it being contemplated by Borrower and Lender that Borrower may hereafter
become indebted to Lender in further sum or sums. Notwithstanding the foregoing provisions of
this definition, this Lien Instrument shall not secure any such other loan, advance, debt,
obligation or liability with respect to which Lender is by applicable law prohibited from
obtaining a lien on real estate.
Land: That certain real property, which shall include the Galante Parcel, or interest more
particularly therein described in Exhibit A attached hereto and incorporated herein by reference,
together with all rights, titles, interests and privileges of Borrower in and to (i) all streets, ways,
roads, alleys, easements, rights-of-way, licenses, rights of ingress and egress, vehicle parking
rights and public places, existing or proposed, abutting, adjacent, used in connection with or
pertaining to such real property or the improvements thereon; (ii) any strips or gores of real
property between such real property and abutting or adjacent properties; (iii) all water, water
rights and water courses which are appurtenant to, located on, under or above or used in
connection with the Mortgaged Property, or any part thereof, whether adjudicated or
unadjudicated, conditional or absolute, tributary or non-tributary, surface or underground,
designated or undesignated; (iv) timber and crops pertaining to such real property; and (v) all
appurtenances and all reversions and remainders in or to such real property.
Leases: The right, title and interest of Borrower in any and all leases, master leases,
subleases, licenses, concessions, or other agreements (whether written or oral, now or hereafter
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in effect) which grant to third parties a possessory interest in and to, or the right to use or occupy,
all or any part of the Mortgaged Property, together with all security and other deposits or
payments made in connection therewith, whether entered into before or after the filing by or
against Borrower of any petition for relief under the United States Bankruptcy Code, 11 U.S.C.
§1O1, et seq., as amended.
Lender: BANK OF THE OZA S, whose address for notice hereunder is
8201 Preston Road, Suite 700, Dallas, Texas 75225, and the subsequent holder or holders, from
time to time, of the Note.
Loan Agreement: That certain Construction Loan Agreement of even date herewith by
and between Borrower and Lender, governing advances under the loan evidenced by the Note
and secured, inter alia, by this Lien Instrument.
Loan Documents: The Loan Agreement, the Note, this Lien Instrument, the
Environmental Indemnity Agreement, the Assignment of Rents, the Guaranty and any and all
other agreements, documents and instruments now or hereafter executed by Borrower, Guarantor
or any other Person or party in connection with the loan evidenced by the Note or in connection
with the payment of the Indebtedness or the performance and discharge of the Obligations,
together with any and all renewals, modifications, amendments, restatements, consolidations,
substitutions, replacements, extensions and supplements hereof and thereof.
Minerals: All right, title and interest of Borrower, if any, in and to all substances in, on,
under or above the Land which are now, or may become in the future, intrinsically valuable, and
which now or may be in the future enjoyed through extraction or removal from the Land,
including, without limitation, oil, gas, all other hydrocarbons, coal, lignite, carbon dioxide, all
other, non - hydrocarbon gases, uranium, all other radioactive substances, gold, silver, copper, iron
and all other metallic substances or ores.
Mortgaged Property: The Land, Minerals, Fixtures, Improvements, Personalty,
Contracts, Leases, Rents, Reserves, Plans and Construction Contracts, and any interest of
Borrower now owned or hereafter acquired in and to the Land, Minerals, Fixtures,
Improvements, Personalty, Contracts, Leases, Rents, Reserves, Plans and Construction
Contracts, together with any and all other security and collateral of any nature whatsoever, now
or hereafter given for the repayment of the Indebtedness or the performance and discharge of the
Obligations, together with any and all proceeds of any of the foregoing. As used in this Lien
Instrument, the term "Mortgaged Property" shall be expressly defined as meaning all or, where
the context permits or requires, any part of the above and all or, where the context permits or
requires, any interest therein.
Note: That certain Promissory Note of even date herewith, incorporated herein by this
reference, executed by Borrower and payable to the order of Lender in the principal amount of
TWENTY -FOUR MILLION AND NO /100 DOLLARS ($24,000,000.00) and any and all
renewals, modifications, reinstatements, enlargements, or extensions of such promissory note or
of any promissory note or notes given in renewal, substitution or replacement therefor.
[NW NW Ventures I, LLC, a Delaware limited liability company]
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49265- 356 /Gabella at Parkside
[NW Loan: That certain loan made by NW A , as lender, toi Guarantor, as
borrower, as evidenced by that certain Loan Agreement dated as of June 7, 2011, as
amended, and related documents and instruments]
Obligations: Any and all of the covenants, conditions, warranties, representations and
other obligations (other than to repay the Indebtedness) made or undertaken by Borrower,
Guarantor or any other Person or party to the Loan Documents to Lender or others as set forth in
the Loan Documents.
Partial Release: A partial release from the lien evidenced by this Lien Instrument of a
portion of the Mortgaged Property to be provided by Lender pursuant to, and in accordance with
Exhibit B of the Loan Agreement.
Permitted Disposition: The sale, transfer or exchange of any portion of the Mortgaged
Property or ownership interest in Borrower permitted under the Loan Agreement.
Permitted Exceptions: The liens, easements, restrictions, security interests and other
matters (if any) expressly listed as special exceptions (i.e., not pre-printed or standard
exceptions) to coverage in the title insurance policy insuring the lien of this Lien Instrument and
the liens and security interests created by the Loan Documents.
Person: Any corporation, limited liability company, limited liability partnership, general
partnership, limited partnership, firm, association, joint venture, trust or any other association or
legal entity, including any public or governmental body, quasi-governmental body, agency or
instrumentality, as well as any natural person.
Personalty: All of the right, title, and interest of Borrower in and to; (i) furniture,
furnishings, equipment, machinery, tangible personal property, and goods located within, used in
the operation of or derived from the Improvements, (ii) crops, farm products, timber and timber
to be cut, and extracted Minerals; (iii) general intangibles (including payment intangibles),
money, insurance proceeds, accounts, contract and subcontract rights, trademarks, trade names,
copyrights, monetary obligations, chattel paper (including electronic chattel paper), instruments,
investment property, documents, letter of credit rights, inventory and commercial tort claims;
(iv) all cash funds, fees (whether refundable, returnable or reimbursable), deposit accounts or
other funds or evidences of cash, credit or indebtedness deposited by or on behalf of Borrower
with any governmental agencies, boards, corporations, providers of utility services, public or
private, including specifically, but without limitation, all refundable, returnable or reimbursable
tap fees, utility deposits, commitment fees and development costs, any awards, remunerations,
reimbursements, settlements or compensation heretofore made or hereafter to be made by any
Governmental Authority pertaining to the Land, Improvements, Fixtures, Contracts, or
Personalty, including but not limited to those for any vacation of, or change of grade in, any
streets affecting the Land or the Improvements and those for municipal utility district or other
utility costs incurred or deposits made in connection with the Land; (v) the Construction
Contracts, Plans and all building and construction materials and equipment; and (vi) all other
personal property of any kind or character as defined in and subject to the provisions of the Code
(Article 9 - Secured Transactions); any and all of which are now owned or hereafter acquired by
Borrower, and which are now or hereafter situated in, on, or about the Land or the
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Improvements, or used in or necessary to the complete and proper planning, design,
development, construction, financing, use, occupancy or operation thereof, or acquired (whether
delivered to the Land or stored elsewhere) for use in or on the Land or the Improvements,
together with all accessions, replacements and substitutions thereto or therefor and the proceeds
thereof.
Plans: Any and all plans, specifications, shop drawings and other technical descriptions
as may be prepared for the construction or rehabilitation of the Improvements or, as applicable,
the development of the Land and all supplements thereto and amendments and modifications
thereof.
Rents: Any and all rents, revenues, royalties, income, issues, proceeds, bonus monies,
profits, security and other types of deposits (after Borrower acquires title thereto) and other
benefits paid or payable by parties to the Leases and/or Contracts (other than Borrower) for
using, leasing, licensing, possessing, operating from, residing in, selling or otherwise enjoying all
or any portion of the Mortgaged Property.
Reserves: All sums on deposit or due under any of the Loan Documents now or hereafter
executed by Borrower for the benefit of Lender including (i) the accounts into which the
Reserves have been deposited; (ii) all insurance on said accounts; (iii) all accounts, contract
rights and general intangibles or other rights and interests pertaining thereto; (iv) all sums now or
hereafter therein or represented thereby; (v) all replacements, substitutions or proceeds thereof;
(vi) all instruments and documents now or hereafter evidencing the Reserves or such accounts;
(vii) all powers, options, rights, privileges and immunities pertaining to the Reserves (including
the right to make withdrawals therefrom); and (viii) all proceeds of the foregoing.
1.2 Additional Definitions. As used herein, the following terms shall have the
following meanings: (i) "hereof," "hereby," "hereto," "hereunder," "herewith," and similar terms
mean of, by, to, under and with respect to, this Lien Instrument or to the other documents or
matters being referenced; (ii) "heretofore" means before, "hereafter" means after, and "herewith"
means concurrently with the date of this Lien Instrument; (iii) all pronouns, whether in
masculine, feminine or neuter form, shall be deemed to refer to the object of such pronoun
whether same is masculine, feminine or neuter in gender, as the context may suggest or require;
(iv) "including" means including, without limitation; (v) all terms used herein, whether or not
defined in Section 1.1 hereof, and whether used in singular or plural form, shall be deemed to
refer to the object of such term whether such is singular or plural in nature, as the context may
suggest or require; and (vi) all capitalized terms not defined in Section 1.1 hereof shall have the
meanings ascribed to such terms in the Loan Agreement.
1.3 Not a Revolver Facility. It is expressly understood and agreed that the
Indebtedness is not intended to be a "revolver" facility and that no principal amount repaid by
Borrower may be reborrowed by Borrower.
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ARTICLE II
GRANT
2.1 Grant. To secure the full and timely payment of the Indebtedness and the full and
timely performance and discharge of the Obligations, Borrower has GRANTED, BARGAINED,
SOLD and CONVEYED, with power of sale, and by these presents does GRANT, BARGAIN,
SELL and CONVEY, unto Lender, with power of sale, the Mortgaged Property, subject,
however, to the Permitted Exceptions, TO HAVE AND TO HOLD the Mortgaged Property unto
Lender, forever, and Borrower does hereby bind itself, its successors and assigns to WARRANT
AND FOREVER DEFEND the title to the Mortgaged Property unto Lender against every Person
whomsoever lawfully claiming or to claim the same or any part thereof; provided, however, that
if Borrower shall pay (or cause to be paid) the Indebtedness as and when the same shall become
due and payable and shall fully perform and discharge (or cause to be fully performed and
discharged) the Obligations on or before the date same are to be performed and discharged, then
the liens, security interests, estates and rights granted by the Loan Documents shall terminate, in
accordance with the provisions hereof; otherwise same shall remain in full force and effect. A
certificate or other written statement executed by or on behalf of Lender confirming that the
Indebtedness has not been fully paid or the Obligations have not been fully performed or
discharged shall be sufficient evidence thereof for the purpose of reliance by third parties on
such fact.
ARTICLE III
WARRANTIES AND REPRESENTATIONS
Borrower hereby unconditionally warrants and represents to Lender, as of the date hereof
and at all times during the term of this Lien Instrument, as follows:
3.1 Title and Lien. Borrower has good and indefeasible title to the Land (in fee
simple, if the lien created hereunder be on the fee, or a first and prior leasehold estate, if it be
created on the leasehold estate) and Improvements, and good and marketable title to the Fixtures
and Personalty, free and clear of any liens, charges, encumbrances, security interests, claims,
easements, restrictions, options, leases, covenants, and other rights, titles, interests, or estates of
any nature whatsoever, except the Permitted Exceptions [and the NW Loan] . This Lien
,Instrument constitutes a valid, subsisting first lien on the Land, the Improvements, the Leases
and the Fixtures; a valid, subsisting first priority security interest in and to the Personalty,
Contracts, Rents Construction Contracts, Plans, and, to the extent that the term "Leases" includes
items covered by the Code, in and to the Leases; all in accordance with the terms hereof and all
subject to the Permitted Exceptions. The foregoing warranty of title shall survive the foreclosure
or other enforcement of this Lien instrument, and shall inure to the benefit of and be enforceable
by Lender in the event Lender acquires title to the Mortgaged Property pursuant to any
foreclosure or otherwise.
3.2 Incorporation of Warranties and Representations. All the warranties,
representations, conditions and agreements contained in (a) the Loan Agreement, (b) the Note
MORTGAGE, SECURITY AGREEMENT, AND
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and (c) all and any of the other Loan Documents, are hereby made a part of this Lien Instrument
to the same extent and with the same force as if fully set forth herein.
3.3 Separate Tax Parcel; Legal Lot. To the best of Borrower's actual knowledge, the
Mortgaged Property is taxed separately without regard to any other real estate and the Land
constitutes a legally subdivided lot under all applicable legal requirements (or, if not subdivided,
no subdivision or platting of the Land is required under applicable Legal Requirements), and for
all purposes may be mortgaged, conveyed or otherwise dealt with as an independent parcel.
3.4 No Commencement of Construction. As of the date of this Lien Instrument,
except as otherwise disclosed to Lender in writing by Borrower, no work or construction of any
kind has been commenced on the Land. As of the date of this Lien Instrument there are no
outstanding bills for labor and materials relating to the Mortgaged Property due and owing to any
contractor, subcontractor, or supplier.
ARTICLE IV
AFFIRMATIVE COVENANTS
Borrower hereby unconditionally covenants and agrees with Lender, that until the entire
Indebtedness shall have been paid in full and all of the Obligations shall have been fully
performed and discharged, as follows:
4.1 Payment and Performance. Borrower will pay the Indebtedness as and when
specified in the Loan Documents, and will perform and discharge all of the Obligations, in full
and on or before the dates same are to be performed.
4.2 First Lien Status. Borrower will protect the first lien and security interest status
of this Lien Instrument and the other Loan Documents and will not permit to be created or to
exist in respect of the Mortgaged Property or any part thereof any lien or security interest on a
parity with, superior to, or inferior to any of the liens or security interests hereof, except for the
Permitted Exceptions [and the NW • Loan].
•
4.3 Tax on Lien Instrument. If at any time any law shall be enacted imposing or
authorizing the imposition of any tax upon this Lien Instrument, or upon any rights, titles, liens,
or security interests created hereby, or upon the Indebtedness or any part thereof, Borrower will
immediately pay all such taxes, provided that if such law as enacted makes it unlawful for
Borrower to pay such tax, Borrower shall not pay nor be obligated to pay such tax. Nevertheless,
if a law is enacted making it unlawful for Borrower to pay such taxes, then Borrower must
prepay the Indebtedness in full within one hundred eighty (180) days after demand therefor by
Lender.
4.4 Incorporation of Affirmative Covenants, Conditions and Agreements. All the
covenants, conditions and agreements contained in (a) the Loan Agreement, (b) the Note and
(c) all and any of the other Loan Documents, are hereby made a part of this Lien Instrument to
the same extent and with the same force as if fully set forth herein. Without limiting the
generality of the foregoing, Borrower (i) agrees to insure, repair, maintain and restore damage to
the Mortgaged Property, pay all property taxes and other impositions, and comply with Legal
MORTGAGE, SECURITY AGREEMENT, AND
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Requirements, in accordance with the Loan Agreement, and (ii) agrees that the proceeds of
insurance and awards for condemnation shall be settled, held and applied in accordance with the
Loan Agreement.
Borrower hereby unconditionally covenants and agrees with Lender, that until the entire
Indebtedness shall have been paid in full and all of the Obligations shall have been fully
performed and discharged, as follows:
5.1 Use Violations. Except to the extent permitted under the Loan Agreement,
Borrower shall not initiate, join in, acquiesce in or consent to any change in any private
restrictive covenant, zoning law or other public or private restriction, limiting or defining the
uses which may be made of the Mortgaged Property. If under applicable zoning provisions the
use of the Mortgaged Property is or shall become a nonconforming use, Borrower shall not cause
or permit such nonconforming use to be discontinued or abandoned without the consent of
Lender, except to the extent permitted under the Loan Agreement or as may be required by any
Governmental Authority. Borrower will not use, maintain, operate or occupy, or allow the use,
maintenance, operation or occupancy of, the Mortgaged Property in any manner which
(i) materially violates any legal requirement; (ii) may be materially dangerous, unless
safeguarded as required by law and/or appropriate insurance; (iii) constitutes a public or private
nuisance; (iv) makes void, voidable or cancelable, or increases the premium of, any insurance
then in force with respect thereto; (v) changes the use of the Mortgaged Property; (vi) permits or
suffers to occur any material waste on or to the Mortgaged Property; or (vii) converts the
Mortgaged Property to a condominium or cooperative form of ownership.
5.2 No Drilling. Borrower will not, without the prior written consent of Lender,
permit any drilling or exploration for or extraction, removal, or production of, any Minerals from
the surface or subsurface of the Land regardless of the depth thereof or the method of mining or
extraction thereof; provided, however, extraction of Minerals from the subsurface of the Land
shall not be deemed to violate this Section 5.2 so long as such extraction is done from an offsite
location consistent with all legal requirements and in a manner such that no material negative
effect or danger whatsoever occurs with respect to the surface of the Mortgaged Property.
5.3 No Disposition or Encumbrance. Borrower shall not make a Disposition without
obtaining Lender's prior written consent, other than a Permitted Disposition[, in connection with
the NW ' Loan] or in connection with the payment in full of Borrower's obligations under the
Note. Borrower will not create, incur, assume or suffer to exist any lien or encumbrance against
all or any portion of the Mortgaged Property, other than as expressly permitted pursuant to the
Loan Agreement.
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ARTICLE V
NEGATIVE COVENANTS
5.4 Incorporation of Covenants. Conditions and Agreements. All the covenants,
conditions and agreements contained in (a) the Loan Agreement, (b) the Note and (c) all and any
of the other Loan Documents, are hereby made a part of this Lien Instrument to the same extent
and with the same force as if fully set forth herein.
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ARTICLE VI
EVENTS OF DEFAULT
6.1 The term "Event of Default," as used herein shall have the same meaning
described for such term in the Loan Agreement.
ARTICLE VII
REMEDIES
7.1 Lender's Remedies Upon Event of Default. Upon the occurrence of an Event of
Default or any event or circumstance which, with the lapse of time, or the giving of notice, or
both, would constitute an Event of Default, Lender may, at Lender's option, and by Lender itself
or otherwise, do any one or more of the following:
(a) Right to Perform Borrower's Covenants. If Borrower has failed to keep or
perform any covenant whatsoever contained in this Lien Instrument or the other Loan
Documents, Lender may, but shall not be obligated to any person to do so, perform or
attempt to perform said covenant, and any payment made or expense incurred in the
performance or attempted performance of any such covenant shall be and become a part
of the Indebtedness, and Borrower promises, upon demand, to pay to Lender, at the place
where the Note is payable, all sums so advanced or paid by Lender, with interest from the
date when paid or incurred by Lender at the Default Interest Rate. No such payment by
Lender shall constitute a waiver of any Event of Default. In addition to the liens and
security interests hereof, Lender shall be subrogated to all rights, titles, liens, and security
interests securing the payment of any debt, claim, tax, or assessment for the payment of
which Lender may make an advance, or which Lender may pay.
(b) Right of Entry. Lender may, prior or subsequent to the institution of any
foreclosure proceedings, enter upon the Mortgaged Property, or any part thereof, and take
exclusive possession of the Mortgaged Property and of all books, records, and accounts
relating thereto and to exercise without interference from Borrower any and all rights
which Borrower has with respect to the management, possession, operation, protection,
or preservation of the Mortgaged Property, including without limitation the right to rent
the same for the account of Borrower and to apply such Rents as provided in Article IX
hereof. All such costs, expenses, and liabilities incurred by Lender in collecting such
Rents and in managing, operating, maintaining, protecting, or preserving the Mortgaged
Property, if not paid out of Rents as set forth in the Assignment of Rents, shall constitute
a demand obligation owing by Borrower and shall bear interest from the date of
expenditure until paid at the Default Interest Rate, all of which shall constitute a portion
of the Indebtedness. If necessary to obtain the possession provided for above, Lender
may invoke any and all legal remedies to dispossess Borrower, including specifically one
or more actions for forcible entry and detainer, trespass to try title, and restitution. In
connection with any action taken by Lender pursuant to this subsection, Lender shall not
be liable for any loss sustained by Borrower resulting from any failure to let the
Mortgaged Property, or any part thereof', or from any other act or omission of Lender in
managing the Mortgaged Property unless such loss is caused by the willful misconduct of
Lender, nor shall Lender be obligated to perform or discharge any obligation, duty, or
liability under any Lease or under or by reason hereof or the exercise of rights or
remedies hereunder. BO ' OWER SHALL AND DOES HEREBY AGREE TO
INDEMNIFY LENDER FOR, AND TO HOLD LENDER HA LESS FROM,
ANY AND ALL LIABILITY, LOSS, OR DAMAGE, WHICH MAY OR MIGHT
BE INCURRED BY LENDER UNDER ANY SUCH LEASE OR UNDER OR BY
REASON HEREOF OR THE EXERCISE OF RIGHTS OR REMEDIES
HEREUNDER, AND FROM ANY AND ALL CLAIMS AND DEMANDS
WHATSOEVER WHICH MAY BE ASSERTED AGAINST LENDER BY
REASON OF ANY ALLEGED OBLIGATIONS OR UNDERTAKINGS ON ITS
PART TO PERFORM OR DISCHARGE ANY OF THE TERMS, COVENANTS,
OR AGREEMENTS CONTAINED IN ANY SUCH LEASE, EXCEPT TO THE
EXTENT ANY SUCH LIABILITY, LOSS, DAMAGE, OR CLAIMS OR
DEMANDS IS CAUSED BY OR RESULTS FROM THE WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE OF LENDER. Should Lender incur
any such liability, the amount thereof, including without limitation costs, expenses, and
reasonable attorneys' fees, together with interest thereon from the date of expenditure
until paid at the Default Interest Rate, shall be secured hereby, and Borrower shall
reimburse Lender therefor immediately upon demand. Nothing in this subsection shall
impose any duty, obligation, or responsibility upon Lender for the control, care,
management, leasing, or repair of the Mortgaged Property, nor for the carrying out of any
of the terms and conditions of any such Lease; nor shall it operate to make Lender
responsible or liable for any waste committed on the Mortgaged Property by the tenants
or by any other parties, or for any hazardous or environmentally sensitive substance in,
on or under the Mortgaged Property, or for any dangerous or defective condition of the
Mortgaged Property or for any negligence in the management, leasing, upkeep, repair, or
control of the Mortgaged Property resulting in loss or injury or death to any tenant,
licensee, employee, or stranger. Borrower hereby assents to, ratifies, and confirms any
and all actions of Lender with respect to the Mortgaged Property taken under this
subsection.
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The remedies in this subsection are in addition to other remedies available to
Lender and the exercise of the remedies in this subsection shall not be deemed to be an
election of nonjudicial or judicial remedies otherwise available to Lender. The remedies
in this Article VII are available under and governed by the real property laws of
Minnesota and are not governed by the personal property laws of Minnesota, in
accordance with the provisions of Section 336.9-604 of the Code, including, the power to
dispose of personal property in a commercially reasonable manner under Section 336.9-
627 of the Code or the application of proceeds under Section 336.9-615 of the Code. No
action by Lender taken pursuant to this subsection shall be deemed to be an acceptance of
collateral in satisfaction of obligations under Section 336.9-620 of the Code. Any receipt
of consideration received by Lender pursuant to this subsection shall be immediately
credited against the Indebtedness (in the inverse order of maturity) and the value of said
consideration shall be treated like any other payment against the Indebtedness.
(c) Right to Accelerate. Lender may, without notice, demand, presentment,
notice of nonpayment or nonperformance, protest, notice of protest, notice of intent to
accelerate, notice of acceleration, or any other notice or any other action, all of which are
hereby waived by Borrower and all other parties obligated in any manner whatsoever on
the Indebtedness, declare the entire unpaid balance of the Indebtedness immediately due
and payable, and upon such declaration, the entire unpaid balance of the Indebtedness
shall be immediately due and payable. The failure to exercise any remedy available to
Lender shall not be deemed to be a waiver of any rights or remedies of Lender under the
Loan Documents, at law or in equity.
(d) Foreclosure-Power of Sale. Lender may proceed with foreclosure under
the power of sale which is hereby conferred, such foreclosure to be accomplished in
accordance with the following provisions:
(i) Public Sale. Lender is hereby authorized and empowered to sell
the Mortgaged Property, or any part thereof, at public auction to the highest
bidder for cash, with or without having taken possession of same. Any such sale
(including notice thereof) shall comply with the applicable requirements, at the
time of the sale, of the statute or statutes, if any, governing sales of Minnesota real
property under powers of sale conferred by mortgages. If there is no statute in
force at the time of the sale governing sales of Minnesota real property under
powers of sale conferred by mortgages, such sale shall comply with applicable
law, at the time of the sale, governing sales of Minnesota real property under
powers of sale conferred by mortgages.
(ii) Right to Require Proof of Financial Ability and/or Cash Bid. At
any time during the bidding, the Lender may require a bidding party (A) to
disclose its full name, state and city of residence, occupation, and specific
business office location, and the name and address of the principal the bidding
party is representing (if applicable), and (B) to demonstrate reasonable evidence
of the bidding party's financial ability (or, if applicable, the financial ability of the
principal of such bidding party), as a condition to the bidding party submitting
bids at the foreclosure sale. If any such bidding party (the "Questioned Bidder")
declines to comply with Lender's requirement in this regard, or if such Questioned
Bidder does respond but Lender, in Lender's reasonable discretion, deems the
information or the evidence of the financial ability of the Questioned Bidder (or,
if applicable, the principal of such bidding party) to be inadequate, then Lender
may continue the bidding with reservation; and in such event (1) Lender shall be
authorized to caution the Questioned Bidder concerning the legal obligations to be
incurred in submitting bids, and (2) if the Questioned Bidder is not the highest
bidder at the sale, or if having been the highest bidder the Questioned Bidder fails
to deliver the cash purchase price payment promptly to Lender, all bids by the
Questioned Bidder shall be null and void. Lender may, in its reasonable
discretion, determine that a credit bid may be in the best interest of Borrower and
Lender, and elect to sell the Mortgaged Property for credit or for a combination of
cash and credit; provided, however, that Lender shall have no obligation to accept
any bid except an all cash bid. In the event Lender requires a cash bid and cash is
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not delivered within a reasonable time after conclusion of the bidding process, as
specified by Lender, but in no event later than 3:45 p.m. local time on the day of
sale, then said contingent sale shall be null and void, the bidding process may be
recommenced, and any subsequent bids or sale shall be made as if no prior bids
were made or accepted.
(iii) Sale Subject to Unmatured Indebtedness. In addition to the rights
and powers of sale granted under the preceding provisions of this subsection, if
default is made in the payment of any installment of the Indebtedness, Lender
may, at its option, at once or at any time thereafter while any matured installment
remains unpaid, without declaring the entire Indebtedness to be due and payable,
enforce this Lien Instrument and sell the Mortgaged Property subject to such
unmatured Indebtedness and to the rights, powers, liens, security interests, and
assignments securing or providing recourse for payment of such unmatured
Indebtedness, in the same manner, all as provided in the preceding provisions of
this subsection. Sales made without maturing the Indebtedness may be made
hereunder whenever there is a default in the payment of any installment of the
Indebtedness, without exhausting the power of sale granted hereby, and without
affecting in any way the power of sale granted under this subsection, the
unmatured balance of the Indebtedness or the rights, powers, liens, security
interests, and assignments securing or providing recourse for payment of the
Indebtedness.
(iv) Partial Foreclosure. Sale of a part of the Mortgaged Property shall
not exhaust the power of sale, but sales may be made from time to time until the
Indebtedness is paid and the Obligations are performed and discharged in full. It
is intended by each of the foregoing provisions of this subsection that Lender may
sell not only the Land and the Improvements, but also the Fixtures and Personalty
and other interests constituting a part of the Mortgaged Property or any part
thereof, along with the Land and the Improvements or any part thereof, as a unit
and as a part of a single sale, or may sell at any time or from time to time any part
or parts of the Mortgaged Property separately from the remainder of the
Mortgaged Property. It shall not be necessary to have present or to exhibit at any
sale any of the Mortgaged Property.
(v) Lender's Deeds. After any sale under this subsection, Lender shall
make good and sufficient deeds, assignments, and other conveyances to the
purchaser or purchasers thereunder in the name of Borrower, conveying the
Mortgaged Property or any part thereof so sold to the purchaser or purchasers
with general warranty of title by Borrower. It is agreed that in any deeds,
assignments or other conveyances given by Lender, any and all statements of fact
or other recitals therein made as to the identity of Lender, the occurrence or
existence of any Event of Default, the notice of intention to accelerate, or
acceleration of, the maturity of the Indebtedness, the request to sell, notice of sale,
time, place, terms and manner of sale, and receipt, distribution, and application of
the money realized therefrom, and without being limited by the foregoing, any
other act or thing having been duly done by or on behalf of Lender, shall be taken
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49265-356/Gabella at Parkside
by all courts of law and equity as prima facie evidence that such statements or
recitals state true, correct, and complete facts and are without further question to
be so accepted, and Borrower does hereby ratify and confirm any and all acts that
Lender may lawfully do in the premises by virtue hereof.
(e) Lender's Judicial Remedies. Lender may proceed by suit or suits, at law
or in equity, to enforce the payment of the Indebtedness and the performance and
discharge of the Obligations in accordance with the terms hereof, of the Note, and the
other Loan Documents, to foreclose the liens and security interests of this Lien
Instrument as against all or any part of the Mortgaged Property, and to have all or any
part of the Mortgaged Property sold under the judgment or decree of a court of competent
jurisdiction. This remedy shall be cumulative of any other nonjudicial remedies available
to Lender with respect to the Loan Documents. Proceeding with a request or receiving a
judgment for legal relief shall not be or be deemed to be an election of remedies or bar
any available nonjudicial remedy of Lender.
(0 Lender's Right to Appointment of Receiver. Lender, as a matter of right
and without regard to the sufficiency of the security for repayment of the Indebtedness
and performance and discharge of the Obligations, without notice to Borrower and
without any showing of insolvency, fraud, or mismanagement on the part of Borrower,
and without the necessity of filing any judicial or other proceeding other than the
proceeding for appointment of a receiver, shall be entitled to the appointment of a
receiver or receivers of the Mortgaged Property or any part thereof, and of the Rents, and
Borrower hereby irrevocably consents to the appointment of a receiver or receivers. Any
receiver appointed pursuant to the provisions of this subsection shall have the usual
powers and duties of receivers in such matters.
(g) Lender's Uniform Commercial Code Remedies. Lender may exercise its
rights of enforcement with respect to Fixtures and Personalty under the Code, and in
conjunction with, in addition to or in substitution for the rights and remedies under the
Code Lender may and Borrower agrees as follows:
(i) without demand or notice to Borrower, enter upon the Mortgaged
Property to take possession of, assemble, receive, and collect the Personalty, or
any part thereof, or to render it unusable; and
(ii) Lender may require Borrower to assemble the Personalty and make
it available at a place Lender designates which is mutually convenient to allow
Lender to take possession or dispose of the Personalty; and
(iii) written notice mailed to Borrower as provided herein at least
ten (10) days prior to the date of public sale of the Personalty or prior to the date
after which private sale of the Personalty will be made shall constitute reasonable
notice; and
(iv) any sale made pursuant to the provisions of this subsection shall be
deemed to have been a public sale conducted in a commercially reasonable
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49265-356/Gabella at Parkside
manner if held contemporaneously with the sale of the other Mortgaged Property
under power of sale as provided herein upon giving the same notice with respect
to the sale of the Personalty hereunder as is required for such sale of the other
Mortgaged Property under power of sale, and such sale shall be deemed to be
pursuant to a security agreement covering both real and personal property under
Section 336.9- 604(a) of the Code; and
(v) in the event of a foreclosure sale, whether made by Lender under
the terms hereof, or under judgment of a court, the Personalty and the other
Mortgaged Property may, at the option of Lender, be sold as a whole; and
(vi) it shall not be necessary that Lender take possession of the
Personalty, or any part thereof, prior to the time that any sale pursuant to the
provisions of this subsection is conducted, and it shall not be necessary that the
Personalty or any part thereof be present at the location of such sale; and
(vii) prior to application of proceeds of disposition of the Personalty to
the Indebtedness, such proceeds shall be applied to the reasonable expenses of
retaking, holding, preparing for sale or lease, selling, leasing and the like, and the
reasonable attorneys' fees and legal expenses incurred by Lender; and
(viii) after notification, if any, hereafter provided in this subsection,
Lender may sell, lease, or otherwise dispose of the Personalty, or any part thereof,
in one or more parcels at public or private sale or sales, at Lender's offices or
elsewhere, for cash, on credit, or for future delivery. Upon the request of Lender,
Borrower shall assemble the Personalty and make it available to Lender at any
place designated by Lender that is reasonably convenient to Borrower and Lender.
Borrower agrees that Lender shall not be obligated to give more than ten (10)
days' written notice of the time and place of any public sale or of the time after
which any private sale may take place and that such notice shall constitute
reasonable notice of such matters. Borrower shall be liable for all expenses of
retaking, holding, preparing for sale, or the like, and all attorneys' fees, legal
expenses, and all other costs and expenses incurred by Lender in connection with
the collection of the Indebtedness and the enforcement of Lender's rights under
the Loan Documents. Lender shall apply the proceeds of the sale of the
Personalty against the Indebtedness in accordance with the provisions of
Section 7.4 of this Lien Instrument. Borrower shall remain liable for any
deficiency if the proceeds of any sale or disposition of the Personalty are
insufficient to pay the Indebtedness in full. Borrower waives all rights of
marshalling in respect of the Personalty; and
(ix) any and all statements of fact or other recitals made in any bill of
sale or assignment or other instrument evidencing any foreclosure sale hereunder,
the nonpayment of the Indebtedness, the occurrence of any Event of Default,
Lender having declared all or a portion of such Indebtedness to be due and
payable, the notice of time, place, and terms of sale and of the properties to be
sold having been duly given, or any other act or thing having been duly done by
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Lender, shall be taken as prima facie evidence of the truth of the facts so stated
and recited; and
(x) Lender may appoint or delegate any one or more persons as agent
to perform any act or acts necessary or incident to any sale held by Lender,
including the sending of notices and the conduct of the sale, but in the name and
on behalf of Lender.
(h) Rights Relating to Rents. Borrower has, pursuant to the Assignment of
Rents, assigned to Lender all Rents under each of the Leases covering all or any portion
of the Mortgaged Property. Lender may at any time, and without notice, either in person,
by agent, or by receiver to be appointed by a court, enter and take possession of the
Mortgaged Property or any part thereof, and in its own name, sue for or otherwise collect
the Rents in accordance with the Assignment of Rents. All Rents collected by Lender
shall be applied as provided for in the Assignment of Rents; provided, however, that if
the costs, expenses, and attorneys fees shall exceed the amount of Rents collected, the
excess shall be added to the Indebtedness, shall bear interest at the Default Interest Rate,
and shall be immediately due and payable. The entrance upon and possession of the
Mortgaged Property, the collection of Rents, and the application thereof as set forth
above shall not cure or waive any Event of Default or notice of default, if any, hereunder
nor invalidate any action pursuant to such notice. Failure or discontinuance by Lender at
any time or from time to time, to collect said Rents shall not in any manner impair the
subsequent enforcement by Lender of the right, power, and authority herein conferred
upon it. Nothing contained herein, nor the exercise of any right, power, or authority
herein granted to Lender, shall be, or shall be construed to be, an affirmation by it of any
tenancy, lease, or option, nor an assumption of liability under, nor the subordination of,
the lien or charge of this Lien Instrument, to any such tenancy, lease, or option, nor an
election of judicial relief, if any such relief is requested or obtained as to Leases or Rents,
with respect to the Mortgaged Property or any collateral given by Borrower to Lender. In
addition, from time to time, Lender may elect, and notice hereby is given to each Lessee
of such right, to subordinate the lien of this Lien Instrument to any Lease by unilaterally
executing and recording an instrument of subordination, and upon such election, the lien
of this Lien Instrument shall be subordinate to the Lease identified in such instrument of
subordination; provided, however, in each instance, such subordination will not affect or
be applicable to (and will expressly exclude any) lien, charge, encumbrance, security
interest, claim, easement, restriction, option, covenant, and other rights, titles, interests, or
estates of any nature regarding all or any portion of the Mortgaged Property to the extent
that the same may have arisen or intervened during the period between the recordation of
this Lien Instrument and the execution of the Lease identified in such instrument of
subordination.
(i) Other Rights. Lender (i) may surrender the insurance policies maintained
pursuant to the Loan Agreement or any part thereof, and upon receipt shall apply the
unearned premiums as a credit on the Indebtedness, in accordance with the provisions of
Section 7.4 hereof, and, in connection therewith, Borrower hereby appoints Lender as
agent and attorney-in-fact (which is coupled with an interest and is therefore irrevocable)
for Borrower to collect such premiums; and (ii) apply the reserve for all property taxes
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and other impositions and insurance premiums, if any, required by the provisions of this
Lien Instrument, toward payment of the Indebtedness; and (iii) shall have and may
exercise any and all other rights and remedies which Lender may have at law or in equity,
or by virtue of any Loan Document or under the Code, or otherwise.
(j) Lender as Purchaser. Lender may be the purchaser of the Mortgaged
Property or any part thereof, at any sale thereof, upon any other foreclosure of the liens
and security interests hereof, or otherwise, and Lender shall, upon any such purchase,
acquire good title to the Mortgaged Property so purchased, free of the liens and security
interests hereof, unless the sale was made subject to an unmatured portion of the
Indebtedness. Lender, as purchaser, shall be treated in the same manner as any third
party purchaser and the proceeds of Lender's purchase shall be applied in accordance
with Section 7.4 of this Lien Instrument.
7.2 Other Rights of Lender. Should any part of the Mortgaged Property come into the
possession of Lender, whether before or after an Event of Default, Lender may (for itself or by or
through other persons, firms, or entities) hold, lease, manage, use, or operate the Mortgaged
Property for such time and upon such terms as Lender may deem prudent under the
circumstances (making such repairs, alterations, additions, and improvements thereto and taking
such other action as Lender may from time to time deem necessary or desirable) for the purpose
of preserving the Mortgaged Property or its value, pursuant to the order of a court of appropriate
jurisdiction or in accordance with any other rights held by Lender in respect of the Mortgaged
Property. Borrower covenants to promptly reimburse and pay to Lender on demand, at the place
where the Note is payable, the amount of all reasonable expenses (including without limitation
the cost of any insurance, property taxes, impositions, or other charges) incurred by Lender in
connection with Lender's custody, preservation, use, or operation of the Mortgaged Property,
together with interest thereon from the date incurred by Lender at the Default Interest Rate; and
all such expenses, costs, taxes, interest, and other charges shall be and become a part of the
Indebtedness. It is agreed, however, that the risk of loss or damage to the Mortgaged Property is
on Borrower, and Lender shall have no liability whatsoever for decline in value of the Mortgaged
Property, for failure to obtain or maintain insurance, or for failure to determine whether
insurance in force is adequate as to amount or as to the risks insured. Possession by Lender shall
not be deemed an election of judicial relief, if any such possession is requested or obtained, with
respect to any Mortgaged Property or collateral not in Lender's possession.
7.3 Possession After Foreclosure. If the liens or security interests hereof shall be
foreclosed by power of sale granted herein, by judicial action, or otherwise, the purchaser at any
such sale shall receive, as an incident to purchaser's ownership, immediate possession of the
property purchased, and if Borrower or Borrower's successors shall hold possession of said
property or any part thereof subsequent to foreclosure, Borrower and Borrower's successors shall
be considered as tenants at sufferance of the purchaser at foreclosure sale (without limitation of
other rights or remedies, at a reasonable rental per day, due and payable daily, based upon the
value of the portion of the Mortgaged Property so occupied and sold to such purchaser), and
anyone occupying such portion of the Mortgaged Property, after demand is made for possession
thereof, shall be guilty of forcible detainer and shall be subject to eviction and removal, forcible
or otherwise, with or without process of law, and all damages by reason thereof are hereby
expressly waived.
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7.4 Application of Proceeds. The proceeds from any sale, lease, or other disposition
made pursuant to this Article VII, or the proceeds from the surrender of any insurance policies
pursuant to any of the Loan Documents, or any Rents collected by Lender from the Mortgaged
Property (except as first required under Section 7.8(c) herein), or sums received pursuant to
Section 8.1 hereof which Lender elects to apply to the Indebtedness in accordance with the
applicable provisions of the Loan Agreement, or proceeds from insurance received pursuant to
Section 8.2 hereof which Lender elects to apply to the Indebtedness in accordance with the
applicable provisions of the Loan Agreement, shall be applied by Lender to the Indebtedness in
the following order and priority: (i) to the payment of all expenses of advertising, selling, and
conveying the Mortgaged Property or part thereof, and /or prosecuting or otherwise collecting
Rents, proceeds, premiums, or other sums including reasonable attorneys' fees; (ii) to the
remainder of the Indebtedness as follows: first, to the remaining accrued but unpaid interest,
second, to the matured portion of principal of the Indebtedness, and third, to prepayment of the
unmatured portion, if any, of principal of the Indebtedness applied to installments of principal in
inverse order of maturity; (iii) the balance, if any and to the extent applicable, remaining after the
full and final payment of the Indebtedness and full performance and discharge of the Obligations
to the holder or Lender of any inferior liens covering the Mortgaged Property, if any, in order of
the priority of such inferior liens (Lender shall hereby be entitled to rely exclusively upon a
commitment for title insurance issued to determine such priority); and (iv) the cash balance, if
any, to Borrower. The application of proceeds of sale or other proceeds as otherwise provided
herein shall be deemed to be a payment of the Indebtedness like any other payment. The balance
of the Indebtedness remaining unpaid, if any, shall remain fully due and owing in accordance
with the terms of the Note or the other Loan Documents.
7.5 Abandonment of Sale. In the event a foreclosure hereunder is commenced by
Lender in accordance with Subsection 7.1(d) hereof, at any time before the sale, Lender may
abandon the sale and may then institute suit for the collection of the Indebtedness and for the
foreclosure of the liens and security interests hereof and of the Loan Documents. If Lender
should institute a suit for the collection of the Indebtedness and for a foreclosure of the liens and
security interests, Lender may, at any time before the entry of a final judgment in said suit,
dismiss the same and sell the Mortgaged Property or any part thereof in accordance with the
provisions of this Lien Instrument.
7.6 Payment of Fees. If the Note or any other part of the Indebtedness shall be
collected or if any of the Obligations shall be enforced by legal proceedings, whether through a
probate or bankruptcy court or otherwise, or shall be placed in the hands of an attorney for
collection after maturity, whether matured by the expiration of time or by an option given to
Lender to mature same, or if Lender becomes a party to any suit where this Lien Instrument or
the Mortgaged Property or any part thereof is involved, Borrower agrees to pay Lender's
attorneys' fees and expenses incurred, and such fees shall be and become a part of the
Indebtedness and shall bear interest from the date such costs are incurred at the Default Interest
Rate.
7.7 Miscellaneous.
(a) Discontinuance of Remedies. In case Lender shall have proceeded to
invoke any right, remedy, or recourse permitted under the Loan Documents and shall
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thereafter elect to discontinue or abandon same for any reason, Lender shall have the
unqualified right so to do and, in such event, Borrower and Lender shall be restored to
their former positions with respect to the Indebtedness, the Loan Documents, the
Mortgaged Property or otherwise, and the rights, remedies, recourses and powers of
Lender shall continue as if same had never been invoked.
(b) Other Remedies. In addition to the remedies set forth in this Article, upon
the occurrence of an Event of Default, Lender shall, in addition, have all other remedies
available to them at law or in equity.
(c) Remedies Cumulative; Non-Exclusive; Etc. All rights, remedies, and
recourses of Lender granted in the Note, this Lien Instrument, the other Loan Documents,
any other pledge of collateral, or otherwise available at law or equity: (i) shall be
cumulative and concurrent; (ii) may be pursued separately, successively, or concurrently
against Borrower, the Mortgaged Property, or any one or more of them, at the sole
discretion of Lender; (iii) may be exercised as often as occasion therefor shall arise, it
being agreed by Borrower that the exercise or failure to exercise any of same shall in no
event be construed as a waiver or release thereof or of any other right, remedy, or
recourse; (iv) shall be nonexclusive; (v) shall not be conditioned upon Lender exercising
or pursuing any remedy in relation to the Mortgaged Property prior to Lender bringing
suit to recover the Indebtedness or suit on the Obligations; and (vi) in the event Lender
elects to bring suit on the Indebtedness and/or the Obligations and obtains a judgment
against Borrower prior to exercising any remedies in relation to the Mortgaged Property,
all liens and security interests, including the lien of this Lien Instrument, shall remain in
full force and effect and may be exercised at Lender's option.
(d) Partial Release; Etc. Lender may release, regardless of consideration, any
part of the Mortgaged Property without, as to the remainder, in any way impairing,
affecting, subordinating, or releasing the lien or security interests evidenced by this Lien
Instrument or the other Loan Documents or affecting the obligations of Borrower or any
other party to pay the Indebtedness or perform and discharge the Obligations. For
payment of the Indebtedness, Lender may resort to any of the collateral therefor in such
order and manner as Lender may elect. No collateral heretofore, herewith, or hereafter
taken by Lender shall in any manner impair or affect the collateral given pursuant to the
Loan Documents, and all collateral shall be taken, considered, and held as cumulative.
(e) Waiver and Release by Borrower. Borrower hereby irrevocably and
unconditionally waives and releases: (i) all benefits that might accrue to Borrower by
virtue of any present or future law exempting the Mortgaged Property from attachment,
levy or sale on execution or providing for any appraisement, valuation, stay of execution,
exemption from civil process, redemption, or extension of time for payment; (ii) all
notices of any Event of Default or of Lender's exercise of any right, remedy, or recourse
provided for under the Loan Documents; and (iii) any right to a marshaling of assets or a
sale in inverse order of alienation.
(0 No Implied Covenants. Borrower and Lender mutually agree that there
are no, nor shall there be any, implied covenants of good faith and fair dealing or other
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similar covenants or agreements in this Lien Instrument and the other Loan Documents.
All agreed contractual duties are set forth in this Lien Instrument, the Note, and the other
Loan Documents.
(g) Real Property Laws Govern. The remedies in this Article VII shall be
available under and governed by the real property laws of Minnesota and shall not be
governed by the personal property laws of Minnesota, provided, Lender elects to proceed
as to the Fixtures and Personalty together with the other Mortgaged Property under and
pursuant to the real property remedies of this Article.
7.8 Minnesota Provisions.
(a) Waiver of Deficiency Statute. In the event an interest in any of the
Mortgaged Property is foreclosed upon pursuant to a judicial or nonjudicial foreclosure
sale, Borrower agrees that, notwithstanding the provisions of Section 582.30 of the
Minnesota Statutes (as the same may be amended from time to time), and to the extent
permitted by law, Lender shall be entitled to seek a deficiency judgment from Borrower
and any other party obligated on the Note equal to the difference between the amount
owing on the Note and the amount for which the Mortgaged Property was sold pursuant
to judicial or nonjudicial foreclosure sale. Borrower expressly recognizes that this
section constitutes a waiver of the above-cited provisions of the Minnesota Statutes.
(b) Interest Collected During Redemption Period. In the event the Mortgaged
Property is redeemed in accordance with applicable law, Lender shall be entitled to
collect from the redeeming party, at the time of redemption, interest during the
redemption period at the maximum amount and rate permitted by Minnesota law,
together with all other amounts permitted to be collected under applicable law.
(c) Lender's Rights to Rents and Application Thereof. All Rents collected by
Lender or any receiver of the Mortgaged Property after the occurrence of an Event of
Default shall be applied, to the extent possible, first to the items set forth in subdivisions
(1) and (2) below, as required by Section 576.25, Subd. 5, of the Minnesota Statutes, and
in such order as will preserve the value of the Mortgaged Property, and shall then be
applied as provided in subdivisions (3) and (4) below:
(1) to the payment of all reasonable fees of any receiver approved by a court;
(2) to the extent possible and in the order determined by the limited receiver
to preserve the value of the Mortgaged Property to the following:
(A) to the payment of all tenant security deposits then owing to any
tenant under any Lease pursuant to the provisions of Section 504B.178 of the
Minnesota Statutes;
(B) to the payment when due of all prior real estate taxes and special
assessments with respect to the Mortgaged Property, or if the Loan Documents
require periodic escrow payments for such taxes and assessments, to the escrow
payments then due;
MORTGAGE, SECURITY AGREEMENT, AND
FIXTURE FINANCING STATEMENT — Page 21
49265-356/Gabella at Parkside
(C) to the payment when due of all premiums then due for the
insurance required by the provisions of the Loan Documents, or if the Loan
Documents require periodic escrow payments for such premiums, to the escrow
payments then due;
(D) to keeping of the covenants required of a landlord or licensor
pursuant to Section 504B.161, Subd. 1, of the Minnesota Statutes;
(E) to payment of all expenses and costs incurred with respect to the
normal maintenance and operation of the Mortgaged Property;
(3) if received prior to any foreclosure sale of the Mortgaged Property to
Lender, or acceptance of a deed in lieu of such foreclosure sale, first as a credit upon the
amount required to effect a reinstatement, and then as set forth in Section 7.4, but, except
as required by applicable laws, no such payment made after the acceleration of all or any
of the secured obligations secured by this Lien Instrument shall affect such acceleration;
and
(4) if received during or with respect to the period of redemption after a
foreclosure sale of the Mortgaged Property:
(A) if the purchaser at the foreclosure sale is not Lender, first to Lender
to the extent of any deficiency of the sale proceeds to repay the secured
obligations secured by this Lien Instrument, second to the purchaser as a credit to
the redemption price, but if the Mortgaged Property is not redeemed, then to the
purchaser of the Mortgaged Property, and
(B) if the purchaser at the foreclosure sale is Lender, to Lender to the
extent of any deficiency of the sale proceeds to repay the secured obligations
secured by this Lien Instrument and the balance to be retained by Lender as a
credit to the redemption price, but if the Mortgaged Property is not redeemed,
then to Lender, whether or not such deficiency exists.
The rights and powers of Lender under this Lien Instrument and the application of rents
and revenues shall continue until the expiration of the redemption period from any
foreclosure sale, whether or not any deficiency remains after a foreclosure.
(d) No Agricultural Use. Borrower represents and warrants that as of the date
of this Lien Instrument the Mortgaged Property is not in agricultural use as defined
in Section 40A.02, Subd. 3, of the Minnesota Statutes, and is not used for agricultural
purposes.
(e) Maturity Date. The Obligations shall mature no later than , 2017.
(f) Additional Notice and Event of Default. Pursuant to Section 7.5 of that
certain Amended and Restated Development Assistance Agreement by and among the
Apple Valley Economic Development Authority, Minnesota (the "Authority "), The City
of Apple Valley, Minnesota (the "City ") and IMH Special Asset NT 175 -AVN, LLC, a
MORTGAGE, SECURITY AGREEMENT, AND
FIXTURE FINANCING STATEMENT — Page 22
49265- 356 /Gabella at Parkside
limited liability company, as predecessor in interest to Borrower, dated ,
2014, in the event that a default has occurred under this Lien Instrument by Borrower,
Lender agrees to provide written notice to the City and The Authority of the existence of
the default, the elements of the default and the actions required to cure the default. Such
written notice shall also provide the City and the Authority with the same opportunity to
cure such default(s) as provided to Borrower pursuant to this Lien Instrument and the
other Loan Documents. In the event that any such default is an Event of Default under
this Lien Instrument which entitles the Lender to foreclose upon the Mortgaged Property
or any portion thereof, and any applicable grace period(s) of the Borrower have expired,
the City and the Authority shall have the additional opportunity to cure such Event of
Default [within a reasonable time thereafter as Lender shall deem appropriate].
(g) Financing Statement. Pursuant to Article X below, the filing of this Lien
Instrument shall constitute a fixture filing in the office where it is filed and a
photographic or other reproduction of this document may also be filed as a financing
statement:
Name and address of Debtor
and Record Owner of
Real Estate:
Name and address of
Secured Party:
Description of the Types
(or items) of property
covered by this financing
statement:
Description of real estate to
which all or a part of the
collateral is attached or upon
which it is located:
7001 N. Scottsdale Road, Suite 2050
Scottsdale, AZ 8523
Bank of the Ozarks
8201 Preston Road
Dallas, Texas 75225
See above
See Exhibit A attached hereto
Some of the above-described collateral is or is to become fixtures upon or minerals and
mineral rights located upon the real estate described on Exhibit A, and this financing
statement is to be filed for record in the public real estate records.
MORTGAGE, SECURITY AGREEMENT, AND
FIXTURE FINANCING STATEMENT — Page 23
49265-356/Gabella at Parkside
ARTICLE VIII
SPECIAL PROVISIONS
8.1 Condemnation Proceeds. Lender shall be entitled to receive any and all sums
which may be awarded and become payable to Borrower for condemnation of the Mortgaged
Property or any part thereof, for public or quasi - public use, or by virtue of private sale in lieu
thereof, and any sums which may be awarded or become payable to Borrower for damages
caused by public works or construction on or near the Mortgaged Property. All such sums are
hereby assigned to Lender, and Borrower shall, upon request of Lender, make, execute,
acknowledge, and deliver any and all additional assignments and documents as may be necessary
from time to time to enable Lender to collect and receipt for any such sums. Lender shall not be,
under any circumstances, liable or responsible for failure to collect, or exercise diligence in the
collection of, any of such sums. Any sums received by Lender as a result of condemnation shall
be applied or disbursed in accordance with the terms of the Loan Agreement.
8.2 Insurance Proceeds. The proceeds of any and all insurance upon the Mortgaged
Property shall be collected by Lender to be applied or disbursed in accordance with the terms of
the Loan Agreement.
ARTICLE IX
ASSIGNMENT OF RENTS
9.1 Assignment of Rents. Reference is made to the Assignment of Rents of even date
herewith which is made a part hereof for all purposes.
10.1 Security Interest. This Lien Instrument (i) shall be construed as a mortgage on
real property, and (ii) shall also constitute and serve as a "Security Agreement" on personal
property within the meaning of the Code and shall constitute until the grant of this Lien
Instrument shall terminate as provided in Section 11.1 hereof, a first and prior security interest
under the Code as to property within the scope thereof and in the state where the Mortgaged
Property is located with respect to the Personalty, Fixtures, Contracts, Rents and Leases, and
Construction Contracts and Plans. To this end, Borrower has GRANTED, BARGAINED,
CONVEYED, ASSIGNED, TRANSFERRED, and SET OVER, and by these presents does
GRANT, BARGAIN, CONVEY, ASSIGN, TRANSFER and SET OVER, unto Lender, a first
and prior security interest in all of Borrower's right, title and interest in, to, under and with
respect to the Personalty, Fixtures, Contracts, Rents and Leases, and Construction Contracts and
Plans, to secure the full and timely payment of the Indebtedness and the full and timely
performance and discharge of the Obligations. It is the intent of Borrower and Lender that this
Lien Instrument encumber all Leases and that all items contained in the definition of "Leases"
which are included within the Code be covered by the security interest granted in this Article;
MORTGAGE, SECURITY AGREEMENT, AND
FIXTURE FINANCING STATEMENT — Page 24
49265- 356 /Gabella at Parkside
ARTICLE X
SECURITY AGREEMENT
and all items contained in the definition of "Leases" which are excluded from the Code be
covered by the provisions of Article II hereof.
10.2 Financing Statements. Borrower hereby agrees with Lender to execute and
deliver to Lender, in form and substance satisfactory to Lender, such "Financing Statements" and
such further assurances as Lender may, from time to time, reasonably consider necessary to
create, perfect, and preserve Lender's security interest herein granted, and Lender may cause
such statements and assurances to be recorded and filed, at such times and places as may be
required or permitted by law to so create, perfect, and preserve such security interest. Without
limiting the foregoing, Borrower hereby specifically authorizes Lender to prepare, file of record
or otherwise effectuate new financing statements, financing statement amendments and financing
statement continuations which describe all or any portion of the Mortgaged Property as collateral
thereunder and Borrower specifically agrees that Lender may cause same to be filed without any
signature of a representative of the Borrower appearing thereon where such filings are permitted
by applicable law.
10.3 Construction Mortgage and Fixture Filing. This Lien Instrument secures future
advances to be used for construction of Improvements on the Land pursuant to the Loan
Agreement. Accordingly, this Lien Instrument constitutes a "construction mortgage" under the
Code. This Lien Instrument shall also constitute a "fixture filing" for the purposes of the Code.
All or part of the Mortgaged Property are or are to become fixtures; information concerning the
security interest herein granted may be obtained from the parties hereto at the addresses set forth
on the first page hereof. For purposes of the security interest herein granted, the address of
Debtor (Borrower) and the address of the Secured Party (Lender) is set forth in the first
paragraph of this Lien Instrument.
MORTGAGE, SECURITY AGREEMENT, AND
FIXTURE FINANCING STATEMENT — Page 25
49265-356/Gabella at Parkside
ARTICLE XI
MISCELLANEOUS
11.1 Release. If the Indebtedness is paid in full in accordance with the terms of this
Lien Instrument, the Note, and the other Loan Documents, and if Borrower shall well and truly
perform each and every one of the Obligations to be performed and discharged in accordance
with the terms of the Loan Documents, then this conveyance shall become null and void and be
released at Borrower's request and expense, and Lender shall have no further obligation to make
advances under and pursuant to the provisions hereof or in the other Loan Documents.
Notwithstanding the foregoing, Borrower shall have the right to obtain a Partial Release of lien
subject to, and in accordance with, Exhibit B of the Loan Agreement.
11.2 Performance at Borrower's Expense. Borrower shall (i) pay all reasonable legal
fees incurred by Lender in connection with the preparation of the Loan Documents (including
any amendments thereto or consents, releases, or waivers granted thereunder); (ii) reimburse
Lender, promptly upon demand, for all amounts expended, advanced, or incurred by Lender to
satisfy any obligation of Borrower under the Loan Documents, which amounts shall include all
court costs, reasonable attorneys' fees (including, without limitation, for trial, appeal, or other
proceedings), reasonable fees of auditors and accountants and other investigation expenses
reasonably incurred by Lender in connection with any such matters; and (iii) any and all other
costs and expenses of performing or complying with any and all of the Obligations. Except to
the extent that costs and expenses are included within the definition of "Indebtedness," the
payment of such costs and expenses shall not be credited, in any way and to any extent, against
any installment on or portion of the Indebtedness.
11.3 Survival of Obligations. Each and all of the Obligations shall survive the
execution and delivery of the Loan Documents and the consummation of the loan called for
therein and shall continue in full force and effect until the Indebtedness shall have been paid in
full; provided, however, that nothing contained in this section shall limit the obligations of
Borrower as otherwise set forth herein.
11.4 Recording and Filing. Borrower will cause the Loan Documents (requested by
the Lender) and all amendments and supplements thereto and substitutions therefor to be
recorded, filed, re-recorded, and refiled in such manner and in such places as Lender shall
reasonably request, and will pay all such recording, filing, re-recording and refiling taxes,
documentary stamp taxes, fees, and other charges.
11.5 Notices. All notices or other communications required or permitted to be given
pursuant to this Lien Instrument shall be in writing and shall be considered as properly given if
provided in a manner consistent with the notice provisions in the Loan Agreement.
11.6 Covenants Running with the Land. All Obligations contained in this Lien
Instrument and the other Loan Documents are intended by Borrower and Lender to be, and shall
be construed as, covenants running with the Mortgaged Property until the lien of this Lien
Instrument has been fully released by Lender.
11.7 Successors and Assigns. All of the terms of the Loan Documents shall apply to,
be binding upon, and inure to the benefit of the parties thereto, their successors, assigns, heirs,
and legal representatives and all other Persons claiming by, through, or under them.
11.8 No Waiver; Severability. Any failure by Lender to insist, or any election by
Lender not to insist, upon strict performance by Borrower or others of any of the terms,
provisions, or conditions of the Loan Documents shall not be deemed to be a waiver of same or
of any other terms, provisions, or conditions thereof, and Lender shall have the right at any time
or times thereafter to insist upon strict performance by Borrower or others of any and all of such
terms, provisions, and conditions. The Loan Documents are intended to be performed in
accordance with, and only to the extent permitted by, all applicable legal requirements. If any
provision of any of the Loan Documents or the application thereof to any Person or circumstance
shall, for any reason and to any extent, be invalid or unenforceable, then neither the remainder of
the instrument in which such provision is contained nor the application of such provision to other
Persons or circumstances nor the other instruments referred to herein shall be affected thereby,
but rather shall be enforced to the greatest extent permitted by law.
11.9 Counterparts. To facilitate execution, this Lien Instrument may be executed in as
many counterparts as may be convenient or required. It shall not be necessary that the signature
and acknowledgment of, or on behalf of, each party, or that the signature and acknowledgment of
all persons required to bind any party, appear on each counterpart. All counterparts shall
MORTGAGE, SECURITY AGREEMENT, AND
FIXTURE FINANCING STATEMENT — Page 26
49265-356/Gabe Ila at Parkside
collectively constitute a single instrument. It shall not be necessary in making proof of this Lien
Instrument to produce or account for more than a single counterpart containing the respective
signatures and acknowledgment of, or on behalf of, each of the parties hereto. Any signature and
acknowledgment page to any counterpart may be detached from such counterpart without
impairing the legal effect of the signatures and acknowledgments thereon and thereafter attached
to another counterpart identical thereto except having attached to it additional signature and
acknowledgment pages.
11.10 APPLICABLE LAW. THE LOAN DOCUMENTS SHALL BE
GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE
OF TEXAS FROM TIME TO TIME IN EFFECT EXCEPT TO THE EXTENT
PREEMPTED BY UNITED STATES FEDERAL LAW; PROVIDED, HOWEVER, IF
THE LAND AND IMPROVEMENTS ARE SITUATED IN A STATE OTHER THAN
TE S, THE LIEN AND REMEDIAL RIGHTS PURSUANT TO THIS LIEN
INSTRUMENT AGAINST THE MORTGAGED PROPERTY SHALL BE GOVE ED
BY THE LAWS OF THE STATE WHERE THE LAND AND IMPROVEMENTS ARE
LOCATED.
11.11 Subrogation. If any or all of the proceeds of the Note have been used to
extinguish, extend or renew any indebtedness heretofore existing against the Mortgaged
Property, then, to the extent of such funds so used, Lender shall be subrogated to all of the rights,
claims, liens, titles, and interests existing against the Mortgaged Property heretofore held by, or
in favor of, the holder of such indebtedness and such former rights, claims, liens, titles, and
interests, if any, are not waived but rather are continued in full force and effect in favor of
Lender and are merged with the lien and security interest created herein as cumulative security
for the repayment of the Indebtedness and the performance and discharge of the Obligations.
11.12 Rights Cumulative. Lender shall have all rights, remedies, and recourses granted
in the Loan Documents and available at law or in equity (including, without limitation, those
granted by the Code and applicable to the Mortgaged Property or any portion thereof), and the
same (i) shall be cumulative and concurrent, (ii) may be pursued separately, successively, or
concurrently against Borrower or others obligated for the Indebtedness or any part thereof, or
against any one or more of them, or against the Mortgaged Property, at the sole discretion of
Lender, (iii) may be exercised as often as occasion therefor shall arise, it being agreed by
Borrower that the exercise, discontinuance of the exercise of or failure to exercise any of the
same shall in no event be construed as a waiver or release thereof or of any other right, remedy,
or recourse, and (iv) are intended to be, and shall be, nonexclusive. All rights and remedies of
Lender hereunder and under the other Loan Documents shall extend to any period after the
initiation of foreclosure proceedings, judicial or otherwise, with respect to the Mortgaged
Property.
11.13 Headings. The Article, Section, and Subsection entitlements hereof are inserted
for convenience of reference only and shall in no way alter, modify, or define, or be used in
construing the text of such Articles, Sections, or Subsections.
11.14 Loan Agreement. Reference is hereby made for all purposes to the Loan
Agreement of even date herewith between Lender and Borrower pertaining to the construction of
MORTGAGE, SECURITY AGREEMENT, AND
FIXTURE FINANCING STATEMENT — Page 27
49265- 356 /Gabella at Parkside
Improvements on the Land, and the funding of the principal amount of the Note. In event of a
conflict between the terms and provisions hereof and the Loan Agreement, the Loan Agreement
shall govern.
11.15 Construction. All pronouns, whether in masculine, feminine or neuter form, shall
be deemed to refer to the object of such pronoun whether same is masculine, feminine or neuter
in gender, as the context may suggest or require. All terms used herein, whether or not defined
in Section 1.1 hereof, and whether used in singular or plural form, shall be deemed to refer to the
object of such term whether such is singular or plural in nature, as the context may suggest or
require.
11.16 ENTIRE AGREEMENT; AMENDMENT. THIS LIEN INSTRUMENT
AND THE OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL
PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND
UNDERSTANDINGS, WHETHER WRITTEN OR O L, RELATING TO THE
SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONT • DICTED
OR VARIED BY EVIDENCE OF PRIOR, CONTEMPO NEOUS, OR SUBSEQUENT
0 ' L AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE
NO 0 . L AGREEMENTS AMONG THE PARTIES HERETO. THE PROVISIONS OF
THIS LIEN INSTRUMENT AND THE OTHER LOAN DOCUMENTS MAY BE
AMENDED OR WAIVED ONLY BY AN INSTRUMENT IN WRITING SIGNED BY
THE RESPECTIVE PARTIES TO SUCH DOCUMENTS.
11.17 WAIVER OF RIGHT TO TRIAL BY JURY. BO • OWER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM THAT
RELATES TO OR ARISES OUT OF ANY OF THE LOAN DOCUMENTS OR THE
ACTS OR FAILURE TO ACT OF OR BY LENDER IN THE ENFORCEMENT OF ANY
OF THE TE S OR PROVISIONS OF THIS LIEN INSTRUMENT OR THE OTHER
LOAN DOCUMENTS.
11.18 NOTICE OF INDEMNIFICATION: BO OWER HEREBY
ACKNOWLEDGES AND AGREES THAT THIS LIEN INSTRUMENT CONTAINS
CERTAIN INDEMNIFICATION PROVISIONS, INCLUDING, BUT NOT LIMITED TO
SECTION 7.1 HEREOF WHICH MAY, IN CERTAIN INSTANCES, INCLUDE
INDEMNIFICATION BY BO • OWER OR OTHERS AGAINST LENDER'S 0
NEGLIGENCE.
MORTGAGE, SECURITY AGREEMENT, AND
FIXTURE FINANCING STATEMENT — Page 28
49265- 356 /Gabella at Parkside
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
EXECUTED as of the date first above written.
BORROWER:
IMH GABELLA, LLC,
a Delaware limited liability company
STATE OF
COUNTY OF
[SEAL]
My Commission Expires:
By: SOUTHWEST ACQUISITIONS, LLC,
a Delaware limited liability company,
its Sole Member
By: IMH SPECIAL ASSET NT 175-AVN, LLC,
an Arizona limited liability company,
its Manager
By: IMH FINANCIAL CORPO
a Delaware corporation,
its Sole Member
By:
Name:
Title:
The foregoing instrument was ACKNOWLEDGED before me this day of
, 2014, by , the of
IMH GABELLA, LLC, a Delaware limited liability company, on behalf of said limited liability
company.
Notary Public, State of
(Printed Name of Notary Public)
MORTGAGE, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT — Signature Page
49265-356/Gabella at Parkside
TION,
List of Exhibits:
Exhibit A - Land Description
MORTGAGE, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT,
FIXTURE FILING AND FINANCING STATEMENT — Signature Page
49265-356/Gabe Ila at Parkside
EXHIBIT A, Land Description — Solo Page
49265-356/Gabe lla at Parkside
6347618v.4
EXHIBIT A
Land Description
*0*
**00
*000
0,00*
City of App
Valley
ITEM DESCRIPTION:
Review, Discussion and Comment about the 2040 Housing Policy Plan
STAFF CONTACT:
Bruce Nordquist, Community Development Director
On the evening of September 25, both the EDA and City Council will receive updates and
have an opportunity to discuss the Metropolitan Council Thrive 2040 Housing (EDA and City
Council) and Transportation (City Council) Policy Plans.
The Metropolitan Council has embarked on the decennial planning process, entitled Thrive MSP
2040. This work culminates with a new Comprehensive Plan for the City of Apple Valley by 2018
for the time period up to 2040. The 2030 Comprehensive Plan for Apple Valley is approaching its
mid-term with guiding land use policies for development priorities and strategies already
underway.
This last spring, staff reviewed the Draft Thrive 2040 Development Guide. The attached City
comment letter was sent April 25. The Metropolitan Council responded with many changes. Over
the summer, the Housing and Transportation Policy Plans were released for comment. A public
comment period for both policies is open during the month of September.
The Housing Policy Plan is over 100 pages and can be found in complete form at:
www.metrocouncil.org
Select the Housing tab and the Housing Policy Plan is under the Planning section.
• Stewardship
• Prosperity
• Equity
• Livability
• Sustainability
• Integration
• Collaboration
• Accountability
ITEM:
EDA MEETING DATE:
SECTION:
The Transportation Policy Plan is over 300 pages and can be found in complete form at:
www.metrocouncil.org
Select Trans Policy Plan under the Planning section.
Select 2040 Transportation Policy Plan.
If full printed copies of each Policy Plan are wanted, please contact Bruce Nordquist.
6A
September 25, 2014
Other
DEPARTMENT/DIVISION:
Community Development Department
The 2040 Development Guide and Policy Plans are to be completed in 2015 to allow each
community to have a system statement from the Metropolitan Council by 2016 for Comprehensive
Planning purposes.
The Outcomes and Principles for Thrive 2040 are applied to both the Housing and Transportation
Policy Plans:
Housing Policy Plan Objectives:
• Policy direction for local and regional growth
• Planning for demographic change; an aging population and increasing racial and economic
diversity
• Applying the Policy to resource allocation
Leverage housing, transportation and park planning with economic development in a
coordinated way
Credit existing naturally occurring affordable housing in the Region
• Solve for the affordable housing need based on when costs exceed 30 percent of gross
income
• Determine regional housing need for local communities; establish goals that address that
need through a "fair share" allocation
• Retain, repair existing housing as it is the most affordable
• Recognize the housing assistance program services of the Metro HRA for their service in
the Region
Transportation Policy Plan Strategies:
• Maintain the built system
• Reduce congestion
• Prioritize resources to projects that are addressing housing needs (see Housing Policy)
• Add sidewalks and trails for bicycles and pedestrians when road projects are initiated;
complete streets
• Supports housing; prohibits certain uses, including surface parking, near transit stations
• Increase density of development along transportation corridors
Transportation Policy Plan — Land Use and Planning:
• Local communities remain responsible for local, interconnected streets
• Redevelop to be less auto/more pedestrian oriented
• Along transit areas, plan and create a minimum activity area of 7,000 people, jobs
• Plan for mixed development near transit that is not "detrimental to the goal of creating an
active pedestrian environment"
Staff is preparing a draft letter with comments on both the Housing and Transportation Policy
Plans. The draft letter will be distributed prior to the September 25 meeting. Any questions in the
interim, contact Bruce Nordquist.
• •
0
0
City of Apple 7100 147th Street W
V alley Apple Valley, MN 55124-9016
April 25, 2014
Ms. Susan Haigh, Chair
Metropolitan Council
390 Robert Street North
St. Paul, MN 55101
Subject: February 2014 Draft "Thrive MSP 2040"
Regional Development Guide
Dear Ms. Haigh:
2040 Proposed 71200 29,500 23,000
by Apple Valley
The Mayor and City Council for the City of Apple Valley provide the following feedback to the
referenced draft and shares the same objective; a thriving Twin City Metropolitan Area in 2040.
1) It is recommended that the 2040 draft forecast for Apple Valley be updated to align with
consulting work that Maxfield Research Inc. did for the Dakota County Community
Development Agency. Maxfield Research, in April, reported to the City that Apple Valley is a
growth subrnarket for population, households and employment.
As a result, the following is recommended for Apple Valley:
Population Households Employment
2040 projected 64,400 26,000 17,700
by Met. Council
2030 projected 71,200 27,500 22,000
by Apple Valley
Comprehensive Plan
2014 Maxfield Study 68,000 28,400 22,000
revises 2030
Home of the Minnesota Zoological Garden
Telephone (952) 953-2500
Fax (952) 953-2515
www.cityofappievalley.org
2) Maxfield Research also observed that the Millennial demographic, presently attracted to Urban
Center and Urban designated areas, will also be attracted to suburban markets in our shared
2040 future. A more moderate stance is recommended to capture the likely suburban choices to
call home and raise and educate children in well serviced areas of the Region such as Apple
Valley. At page 26 of the Guide "seems to have different lifestyle preferences" does not reflect
future actions of the demographic as described here.
- Equity" is a new visioning term defined as "all residents must be able to access opportunity".
News media is reporting that transit services reach few workers and areas of low income and
racial concentration. Mobility solutions that reach existing affordable housing will manage our
existing assets better, and must have a greater priority. Apple Valley advocates and encourages
the Guide to address:
Existing and future main line transit services that have a robust system of connecting routes.
Local studies have determined that 85 percent of Apple Valley can connect to Red Line
Cedar Avenue with expanded service on good connecting routes already available.
Safe elevated pedestrian crossings at transit stations on higher speed multi-lane routes.
• Facilities that attract suburban riders; well designed and lighted with weather protection.
O All solutions thoughtfully: bus rapid transit, light rail, park and ride and local service.
4) Thank you for the mention on page 55 of Apple Valley's Downtown as a gathering place.
However, Bus Rapid Transit is not given the same prominent position as light rail and park and
ride services at page 55 and page 75. BRT is the most cost effective, efficient, mainline transit
solution for rapid deployment from suburban locations.
5) MVTA is Apple Valley's preferred transit service provider. The Guide should embrace the role
suburban transit authorities have in providing suburban mobility solutions. Metro Transit
should support expanding suburban authorities local connecting services to main lines.
6) Apple Valley's Minnesota Zoo is not mentioned as a regional asset in the Guide. The 1.6
million visitors annually warrant more attention for demonstrating effective multi-cultural and
intergenerational access to this unique park and recreation asset. This reference should be added
at page 25 and 55 of the Guide when mentioning "regional parks and trails".
7) Water resource management is a shared regional interest at page 69 to 72 of the Guide. Water
service, its distribution infrastructure and management, is a local utility. The Metropolitan
Council can play a collaborative role in coordinating regional resources without regulating the
local utility.
8) "Orderly and efficient land use", at page 64, would convey a clearer representation of a
suburban designation if it recognized that a suburb has to address two users: the driver and the
- walker/biker that picks up the bag of groceries.
9) The Metropolitan Council regulates sewer availability rates to the detriment of community
development. "Equity" for small business and new restaurants must be found. Thousands of
dollars are required up front for the initial user. A solution to the significant front loaded costs
must be determined.
10) Better housing inventories are needed for communities that have an existing affordable housing
stock and develop market rate and lifecycle housing with some affordability. Rather than
further regulate affordability or only recognize "new affordable production", allow communities
to thrive with their local housing development markets while the Region addresses impediments
to mobility at areas of concentration.
11) The Guide does not sufficiently address those impacts, challenges and opportunities in the
greater 13 county metropolitan area. More attention is needed here, starting at page 1 of the
Guide Plan that references a thriving Region, as it affects all business, development,
transportation, and resource management decisions to 2040.
12) Much attention is devoted to emerging "climate change" concerns at page 30. Addressing this
problem 5, 10 to 25 years into the future is probably too late. If attention, is needed, it is needed
now and should be managed outside of the Thrive MSP 2040 process if the Region wants to
play a collaborative role and impact the future.
13) Greater MSP has assembled an industrial property inventory in 2013. The Guide focuses on the
need for a Regional assessment of industrial property. Was something missed by Greater MSP?
14) Emphasis is made on forestry management and grants at page 95. Apple Valley is already a
"Tree City" having recently achieved 30 years of recognition. And, this is significant given a
long history of active sand and gravel mining where no trees existed. Perhaps only some
suburban areas require this attention rather than the entire Region.
1 ) Financial resources are inadequate to address the challenges identified in the Guide. More
deliberate fiscal notes and financial forecasts are needed as a way to prioritize expenditures for
different aspects of the Development Guide.
For its part:
Apple Valley will continue to collaborate and participate in Regional policy development as a
partner in Regional success.
- Apple Valley accepts its "suburban" designation if the Guide can also recognize the uniqueness
of suburban locations that are differentiated from urban center and urban qualities.
Apple Valley will continue to manage storm water thoughtfully; with attention to on-site
infiltration, regional ponding solutions and good community design and planning.
Apple Valley has cost effectively implemented a long range street infrastructure maintenance
and replacement program without special assessment to adjacent property owners and users.
- Apple Valley will pursue compact, mixed-use, suburban intensive development along Regional
transitways and advocate for transit facilities that encourage use and offer safe crossing.
- Apple Valley will be a thriving City that is the place to plant : grow : prosper as it relates to
living, working, learning, shopping and recreating.
- Apple Valley will continue to sustain our significant park and trail assets in close proximity to
residents and our walkable/bikable downtown for business.
Apple Valley - will negotiate lifecycle and affordable housing goals that take the existing
housing inventory and density into account. We will respond to the housing market demand
for multi-unit market rate housing with some affordability.
Please consider these items as work on the Thrive MSP 2040 Development Guide continues.
Sincerely,
CITY OF APPLE VALLEY
Bruce Nordquist, AICP
Community Development Director
cc: Mayor and City Council
City Administrator
Apple
Valley
re Inv! e
Where: Day 1: Apple Valley Senior Center
14601 Hayes Road
What: Vitalocity! Workshop - Age-Friendly Apple Valley
When: Day 1: Tuesday, September 30
8 a.m. to 5 p.m.
Days 2 & 3: Wednesday and Thursday, October 1 and 2
8 a.m. to 5 p.m.
Days 2 &3: Ecumen Seasons at Apple Valley
15359 Founders Lane
From September 30-October 2, the City of Apple Valley is partnering with a team of
experts on aging for a Vitalocity! workshop. Vitalocity! is an initiative to integrate age-
friendly design principles into cities' social and physical infrastructure. The outcome of
this workshop is to develop a "roadmap" for an aging-friendly Apple Valley.
Day 1 of the workshop is all about gathering information and hearing the thoughts of
senior members of our community on what it's like to live and work in Apple Valley. Days
2 and 3 are all about developing policies and guidelines to address any weaknesses, build
on our strengths and capitalize on opportunities.
Participants in the Minnesota workshop include: the City of Apple Valley, world leading
retirement communities, senior housing and services experts, experts in nutrition and
leading technology companies. Members of the team include representatives from the
International Federation on Aging, Minnesota-based Ecumen, Kendal Corporation,
BusinessLab, IBM, Perkins Eastman and Sodexo.
If you're interested in participating in this program or would like more information, please
contact Margaret Dykes at (952) 953-2569 or mdykesci.apple-valley.mn.us
Please visit the Apple Valley Vitalocity! Facebook page at
www.facebook.com/OurAppleValleyMN
8:OOAM
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DAY 1 : NEEDS AND AMBITIONS : TUESDAY 30 SEPTEMBER
VENUE: The Apple Valley Senior Center, 14601 Hayes Road, Apple Valley
Presentation set up, registration and coffees.
The morning will be an interactive session focusing exclusively on the
Apple Valley Community. Contributions will be elicited from those who
submitted pictures and stories, and from those there who did not.
Community groups will respond to the WHO topics and scenarios.
City of Apple Valley presentation.
LUNCH (after which, the Apple Valley Community departs)
Presentations from Ecumen I Kendal I Perkins Eastman
Presentations from Sodexo I IBM I IFA
Review of Day 1 discussions between Vitalocity! partners and guests.
EVENING Early Supper
Analysis and development of key themes from Day 1 to feed into Day 2.
Apple„
Valley
8:OOAM
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LUNCH
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Valley
DAY 2 : PROBLEMS AND SOLUTIONS : WEDNESDAY 1 OCTOBER
VENUE: Ecumen Seasons at Apple Valley, 15359 Founders Lane, Apple Valley
Coffees and conversations
Summary presentation of the key themes from Dayl and open
discussion between Vitalocity! partners and guests on the themes.
Partners and guests break into groups to discuss the themes and to
develop these into design/service/communication challenges and solutions
and to present their interim conclusions before lunch.
Partners and guests continue their discussions in groups to examine and
define an integrated approach to resolving the challenges identified.
Summary presentation of the conclusions of the groups followed by a
discussion on how these dovetail with WHO themes.
EVENING Team members review the conclusion of the groups, map these to the
WHO themes and prepare a framework for both the Apple Valley
manifesto and the Vitalocity! roadmap - for discussion on Day 3.
8:00ANI
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DAY 3: STRATEGIES AND TIMELINES : THURSDAY 2 OCTOBER
VENUE: Ecumen Season at Apple Valley, 15359 Founders Lane, Apple Valley
Coffees and conversations.
Review of the proposed 'chapters' of the City of Apple Valley manifesto
and the framework of the Vitalocity! Roadmap.
Joint development of the manifesto chapters and roadmap by
Vitalocity! partners and guests.
Joint development continues over a working lunch.
Review of progress.
The team splits into two groups to consider the detail of the manifesto.
and the Roadmap.
Facilitated iteration between the groups.
Team reconvenes to share progress and agree the closing position on
the manifesto and the roadmap.
EVENING Vitalocity! and City of Apple Valley social gathering.
App
Valley