In Court of Appeals

In re: Doug l\Iann

Doug lUann,
Petitioner,
vs.

I\{inneapolis Citv Council,

Respondent.

RESPONDENT'S MOTloN FOR ExPEDITED CONSIDERAT10N OR ALTERNATIVELY FOR SURETY BOND

MasLoN Eoer-ueN BonrrreN & BneNo, LLP William Z. Pentelovitch (#85078) David F. Herr (#44441) Irlichael C. itlcCarthy (#230a06) Haley N. Schaffer (#313099) John T. Duffey (#0392157) 3300 Wells Fargo Center 90 South Seventh Street iUinneapolis, IrIN 55102-4140 Telephone : (612) 67 2-8200

OF COUNSE'-r ' Susan L. Scgal (#137157) Peter W. Ginder (#35099) Sarah C.S. I\{claren (#345878) Office of the City Attornev Ciw Hall-Room 210
350 South 5rh Street Minneapolis, MN 55-115 Telephone : 61 2- 67 3 -247 8

Attorney./br fu tpo nde n t

I.

Introduction
'Ihc pctition pending before this Court is Petitioner Mann's latest in a sedes of cfforts

designed to delav-and thereby, ultimatclv

prcvent-the construction of a new football

stadium in dorvntorvn Minneapolis. '[his delav has cast a cloud of uncertainty ovcr rhe financing of this proiect, and this uncertainw has caused, and will continue to cause, harm to the Ciw of lrlinneapolis and its taxpavers, as rvell as to the State and other public and private

entities. T'o mitigate this harm, Respondent Minneapolis City Council respecrfully moves this Court for expeditcd consideration of l\{ann's Petition for Writ of N{andamus. Alternativelv, should this Court dcny expedited considerarion, Respondent respectfully
requests that this Court ordcr N{ann to provide a surery bond of $10

million. Such a bond is

rvarranted under IUinn. Stat. $ 562.02 bccause Mann's Petition questions thc validity of an

action taken by a public body in the course of "the authorization or sale, issuancc or delivery

of bonds"

andf

or "the makingof

contract for public improvcmenr."

II.

Statement of Facts
Nlann's Pedtion seeks to undermine the current program to develop and finance
a

nerv football stadium ("Stadium') and related sites in dorvnrorvn lUinneapolis. This

Program, enacted by the Nlinnesota Legislature at 201,2I\Iinn. Larvs, ch. 299 ("Stadium

Legislation"), splits thc cost of building thc Stadium bcnveen rhe orvner of the I\linnesota Yikings, the Statc of llinnesota, and the Cirl' of lllinneapolis.
See

id. arr. 1, SS 1 5,

19

[r also

obligates the Ciry to pay a share of Stadium's operating costs and to make an annual

contribution to the Stadium's capital improvement fund.

See

id.

ar.

1, $ 18,

art.3,

S 1.

Pursuant to the Stadium Legisladon, the Cin'is authorized, but not obligated, to impose various sales taxes to fund its obligations.
-fea

id. art.3,

SS

1-3. Thc Stadium

Lcgislation tasks the Commissioner of Revenue rvith collecting the revenuc generated by
these sales taxcs and remitting to the Cin' any revenue in excess of the Ciry's obligations and

ccrtain other costs.

See

id.

^rt.3,

SS

1-2

Scction 2 of Arucle 3 provides that the City may use

this remittancc "to fund capital projects to further residential, cultural, commercial, and

cconomic development in both dorvntorvn ir,Iinneapolis and the lUinneapolis

neighborhoods, to fund other ciry expenditurcs in support of the basketball arena, other capital projects, or for other cconomrc development, provided the ciq' mav direct excess revenue fust to convention ccnter debt, operations, capital improvements, and marketing."

This section also authorizes the Ciry to "issue bonds to fund any such pro;ects or
improvements using these taxes or any other available city resources to finance or secure the

bonds."

.[/.

Section 7 of

lrucle

3 rc<luires that thc Ciq, approve of the Stadium Legislation-and

the obligauons it imposes on the Ciry-beforc the legislation can take effect. This approval
was granted by vote o[ the l\Iinneapolis Ciry Council and signature of the Mayor on I\[a1' 25, 2072, and the Ciq, Clerk filed a Cerdficate of ,\pproval with thc Secretan, o[State onJune 4,

2012.

Approximately nvelvc months later, I\lann petitioned the district court for

rvrit

of

mandamus compelling Respondent to "place on the ballot in the next general election on

November 5,2013 the questiorr of rvhether thc City of Minneapolis shall accept the
obligations imposed upon it by the [Stadium Legislation]."

O. Norember

72,2073, the

district issucd an order denying and dismissing lr{ann's petition. On November 14, 2073, judgmcnt rvas entcred. No timell' appealrvas taken from this fudgment. Unhappv with this
result, I\Iann filed the mandamus petition currently pending before this Court onJanuan' 10, 2014.

The existence of this and other cases icopardizes the issuance of bonds to finance the
stadium and acquisition of adjacent properq', including propert)' for a public park. So long
as

this litigauon is pending, the City Attorney cannot issue a "clean opinion" and, therefore,

bond counscl cannot issue a "clean opinion;" without "clean opinions," bonds cannot be
sold.1

affidavits have bcen filed describing in substantial detail the manner in rvh.ich the pendency of liugation such as the prcsent case jcopardizes the issuancc of bonds and other transactions rvlr.ich are set to occur rvithin the next wcek or tvo. (See, e.g., Second Affidavit of Rick Collins filed in W'oodrul/'r,. Ciyy oJ Minneafolis, State of Minnesota District Court, Fourth Judicial Disuict, Case No. 2l-CV-1321254 is attached as Exhibit 1 to the Appendix Frled herervith ("Collins Aff."); Affidavit of Susan Segal filed in lWoodrufl'r. Ciry qf lvlinneapolis,State of l\{inrresota Disuict Court, Ilourth Judicial District, Case No. 27 -C\t -7321254 is attached as Exhibit 2 ("Segal Aff.'); Affidavit of Peter W. Ginder filed in lf,/oodrzj'r. Cily of Ivlinneapolit, State of lUinnesota Disuict Court, FourthJudicial District, Case No. 27-C\'1321254 is attachcd as Exhibit 3 ("Gindcr Aff.'); Affidavit of Kevin Carpenter filed in Voodnrfi't. C'ig, oJ';\4inneupolis, State of lrfinnesota Disuict Court, Fourth Judicial District, Case No. 27-CV-1321251is attached as Ilxhibit 4 ("Carpenter Aff."); Affidavit of Michele I(clm-Flelgen filed in ,l'lann r. Stltoaalter, State of lUinnesota Supreme Court, No. A14-0029 is attached as Exhibit 5 ("Kelm-Helge n Aff."); and Affidavit ofJames Schorvalter filed in Mann t,. .ftbowalter, State o[ Irlinnesota Supreme Court, No. A14-0029 is attached as Exhibit 6 ("Schorvalter Aff.")). Copies of those affidavits are being submitted to this Court in an Appendix to this l\lotion. In the interest of brcviry, most of the details set forth in those Affidavits arc not repeatcd here. If the Coun wishes to have the wrtnesses execute scparate affidar-its captioned in this matter, the Crty rvrll arrange to have that done.

1 In cases pcnding in Hennepin County and in the l\finnesota Suprcme Cowt,

III.

Argument

A.

Good Cause Exists for Expedited Consideration Under Minn. R. Civ. App. P.102.

Pursuant to its inherent authoriry and that provided bv Rule 102 of the Irlinnesota
Rules of Civil Appellate Proccdure, this Court has the power to modift' the schedule of the

mattcrs coming before

it. It may expcdite

thc consideration and disposition of such

Sce, e.g.,

mattcrs-and

has done so

in the past rvhere good cause has been shorvn.

Sbukopu

d'Ideaakanton Sioax @akota) Connuniry r. il'Iinn. Canpai,gn Finanu

d:

Public Divlo.rare

8d.,586

N.W.2d 406 (1\Iinn. Ct. App. 1998); I-eonard, .ftrcct

198 (i\Iinn. Ct. App. 198+1.2

6l)eiurd

p. Marquette

Asso,'t.,353 N.W.2d

Good cause ccrtainly exists here for expedited consideration o[ IUann's mandamus

petition. The Stadium Legislauon establishes

a complex and comprehcnsive development

and financing program for thc construction and continued opcration of the Stadium and related sites. (Jae Schorvalter Aff. fl 5(a), Ex. 6.) The program requircs the coordinated

efforts of multiple parties, and the failure or inabiliq' of any of these parties to perform

as

2 Historl' has a rendencv ro rcpeat itself. ln'1979, challenges rvere made to the legislative scheme for Frnancing the Hubcrt H. Flumphrey Metrodome, rvhich is being rcplaced by the stadium rvhich is the subiect of the financing statute at issue hcre. As in the present case, the mere cxisrencc of the litigation made it impossible for bonds to be issued for consuuction of the stadium, and in light of that exigency the proceedirrgs were expeditcd by order of the district court and the supremc court. The complaint in that case rvas filed on August 29, 7979, a full trial on thc merits rvas conducted in Ramsey County, and the Suprcme Court issued its final rvritten opinion affirming the trial court decision on October'19,1979. See illinne.sota I/iking Footbal/ Club, Inc. r. hletmpolitan Council,289 N.\V. 2d 426 428-30 (}{inn. 1979). Several other orders issued by the tdal and supreme courts during thosc proceedings are appended to the decision. See, e.g., id at 432-47.

expected is likely to lead to material, expensivc, and perhaps fatal effects to the program as a

rvhole.

(1r/.)

The mere existence of Nfann's Petition creates quesuons regarding the Cin"s abiliq' to
perf<rrm its obligations as expected under this program-nnmsly those relatcd to the

imposition of sales taxes. As noted above, bonds which rvere schcduled to be sold in the
next rveek or nvo cannot be sold so long as this case is unresolved

(See Segal

Aff. lltl 2-6,

Ex. 2; Schorvalter Aff. fl 5, Ex. 6.) The longer these qucstions pcrsist, the more cettain they
are to negativclv impact the performance of other entities-potentiallv leading to a domino-

like effect that undermines the whole program.

For example, the Stadium Legislation grants the State the authoritl'to issue and sell appropriation bonds for purposes o[ financing the Stadium. 2012 Nlinn. Larvs, ch.299, art.
2, S 1, subd. 3(c). It also provides that some of the revcnues generated by the City's sales
taxes be applied torvard the debt sen'ice for these bonds in the years ahead. Id. art. 3, S 1,

subd.

4.

The uncertainry surrounding whether the City will actualll, impose such sales taxes

raises questions about horv the debt sen'ice

for these bonds will be paid-making thesc

bonds not reasonably marketable, or at the very least, creating an investment risk that
uanslates to reduced market demand for the bonds and higher interest costs to the State.
(Jaa Schorvalter

Aff.

1l1l

3-5, Ex. 6.)

The negauve impact on the State's abiliry to issue bonds ieopardizes the performance

of other entities. For instance, the lt{innesota Sports Facilities Authoriw ("NIFSA") re[es on
the money gencrated from the sale of these bonds to pay for construction costs relating to the Stadium project. Any delay in the pavment of thesc costs will l-ikely cause delavs in the

Stadium construction schedule , rvhich will in turn result in increased costs and delavs in the

completion of the Stadrum.

(Jea

l(elm-Hclgen Aff. fl 11, Ex. 5.) A delay in the compleuon

of the Sradium proiect rvould deleteriously affect numerous scores of others bevond thc
Ciq', tlrc Srare, and the Ivlinnesota Vikrngs Football club-including the hundreds of workers
and businesses with a concrete interest in the Stadium Project and the potential users of the Stadium as a venue for college baseball, high school sports, cultural, and other events. (Jaa

I(elm-Helgen Aff.'l|l 12, Ex. 5; Schorvalter Aff. fl 5, Ex. 6.)

l'he Ir{FSA also uses the proceeds from the State's bond issuance to fund property
acquisitions relating to the Stadium Proiect.
(.fee

I(elm-Helgen Aff. tl 13, Ex. 5.) The IUFSA

is scheduled to close on thc purchase of the property knorvn as the Downtorvn East Parcel

and Parking Ramp ("DTE Property") onJanuaq'23,2014'

(//.) The D'fE Properry

provides a portion of the Stadium's parking requilemcnts under the Stadium Legislation.

(I/.) Withour rhe bond

proceeds, the IUFSA has inadequate funds available to complete this

purchase, and the scller has the right to terminate the Purchase Agrecment if the purchase is

not completed by February 15,2014. (ld.) Further, the January 23rd closing on the DTE Properry is a condition of closing for
a

joint project ("I)TE Development Pfoiect") betrvcen the NIFSA, the Ciry, and Ryan
(,ompanies (tJS), Inc. (Id.) Pursuanr to this projcct, the IvtFSA plans to purchase another parccl, knorvn as rhc Block 1 Parccl, on rvhich it rvill erect a building that rvill seffe as the

primaq' parking structure for the nerv Stadium and component of the DTE Development Proiect

cornerstone for the mixed-use

(Id.n 15.) If the I\{FSA does not have

adequatc bond proceeds to fund this acquisition, the DTE, Dcvelopment Proiect will be

seriously jeopardized-impacting over 5,000 jobs and potentially leading to host of othe r
negative consequcnces, including the loss of ovcr $400 million of privatc investment. (ld.

fl 16)
F'or these rcasons, this Court has good cause to expedite its considcration of It{ann's

Petition, and Respondent respectfull)' reque sts that it dispose of this matter as soon as is
possible.

B.

Grounds Exist for the Issuance of a Surety Bond Pursuant to Minn. 9tat.562.02
caused by Nlahn's Petition threatens immediate and potentially irreparable

'Ihe delay

harm to the Citl', the State, and numerous other entities. This harm is exacerbated by the
fact that Mann rvaited nearly nvo months after entry of judgment in the Hennepin County mandamus proceeding to file his mandamus pctition, in an apparent attcmpt to obtain the practical equivalent of the relief that the disuict court denied him belorv. Should this Court
denv expedited consideration of lt{ann's Petition, Respondent respectfulll' requests that this

Court order irlann to provide a suret)' bond in the amount of $10 million to alleviate the harm that the Ciry and othets have suffeted-and will continue to suffer-during the
pendcncy of this action.3
State law authorizes courts to requfue surety bonds in situations, like the one here, rvhere a go\-ernmcntal unit's bclnding activiues or public-rv<lrks projects are imperiled by a larvsuit:

Whenever anv action at larv or in equity is brought in any court in this statc quesuoning directlv or indirecdy the existence of anv condition or thing

So,

affidavits submitted in the Appendix hereto.

7

precedcnt to, or thc validiry of any action taken or proposed to be taken, by anv public body or its officers or agents in the course of the authorization or sale, issuance or delivery of bonds, the making of a contract for public improvement or thc validity of any proceeding to alter the organization of a school district in any manner, such public body maF mo\re the court for an order requiring the party, or parties, bringing such action to filc a surcty bond as hereinafter set forth. Three da1's' .r.',ren notice of such motion shall be given. I f the public body is not a party to thc action, but if it dcems that such action be iniurious to the public intcrest and to the taxpavers, such public bodl' may intenrene or appear specially for thc purpose of making such motion. If thc court determines that loss or damagc to the public or taxpa)'ers may result from the pendency of the action or proceeding, the court may requirc such party, or parties, to file a surety bond, rvhich shall be approved by the court, in such amount as the court may determine. The court must also considcr whether the action presents substantial constitutional issues or substantial issues of statutoqr construction, and the [kelihood of a parry prevailing on thesc issucs, rvhcn dctcrmining thc amount of a bond and rvhethcr a bond should be required under this section or secuon 473.(175. Such bond shall be conditioncd for payment to the public body of any loss or damagc rvhich mar be caused to the public bodl'or mxpayers bv such delay, to the extcnt of the pcnal sum of such bond, i[ such party, or parties, shall not prevail therein. If such sureh' bond is not filed s,ithin a rcasonable time allowed thercfor by the court, the action shall be dismissed with preiudice. If such parn', or parues, file a bond as hcrein required and prevail in thc action, any prcmium paid on the bond shall be repaid by or taxed against the pubhc body.
Ivlinn. Stat. $ 562.02 (2013). '['he mandamus petition here mcets all of the conditions outlined in section 562.02.

Iiirst, it raises questions regatding the validity and effect of Resp<lndent's approval of the
Stadium Legislarion, as rvell as thc City's efforts to issue bonds to pay for parking facilities

rcquircd by that starute.

(.\aa

NIem. Supp. Pet'r's Pet. 1,

3-4.)

Second, as detailed above,

"loss or damage to the public or taxpa),crs" has already resulted and rvill continue to result

from rhc pendcncv of this action. And third,

as

explained rn

de

tail in Respondcnt's brief in

opposition to l\[ann's Petiuon and incorporatcd herein b), reference, Itfann has failed to

presenr any subsmndal legal issucs in his mandamus petition and is extremcly unlikely to

prevail on the merits.

Given thc sustained and calculated efforts lrlann has used to cause harm to the
Stadium pro;ect, it is absolutcly fair for thc Coutt to impose the burden of a $10 million

surc* bond on him in this circumstance.4

IV.

Conclusion
For the rcasons set forth above, Rcspondent rcspectfully re<luests that this Court

granr its motion for cxpedited consideration, or alternatively, its motion for a surety bond.

4 In the 1979 Illeuodome case, the Suprcme Court declined to tecluire

a bond only because the governmental time deadlines meet the in to order it rvas espediring the proceedings agencies rverc rv<lrking against. Sce Minnenta l/ikings lTootbull Club,289 N.W. 2d at 429.

Dated: January 15,2014

R N m SLON EDELR RN BONR LR BRR ND,LLP RE

William Z. Pentelovitch (#850 bill. pentelovitch@maslon. com David F. Herr (#4441'l) david. herr@maslon. com
I\tichael C. NlcCarthy (#230a06) mikc. mccarthy@maslon. com Haley N. Schaffer (#313099) h aley. scha ffer@ma slo n. com John T. Duffey (#0392157) john.duffcy@maslon.com 3300 Wells Fargo Center 90 South Seventh Street I\{inneapolis, MN 55402-4140 Telephone : (612) 67 2-8200 Facsimile: (612) 672-8397

Of Counsel:
Susan

L. Segal (#137157)

susan. segal@minneapolismn.gov Petcr W. Ginder (#35099) peter. ginder@ mrnncapolismn. gov Sarah C.S. I\Iclaren (#345878) sarah.mclaren@minneapolismn.gov Office of the Ciry Attorney Ciry Hall-Room 210 350 South 5th Sueet Irlinneapolis, MN 5541 5 Telcphone : 612-67 3 -247 8 Facsimile: 612-67 3 -3362

1016153

A t toney Jbr

Re slto n de n

State of Minnesota

In Court of Appeals
In re: Doug Ir{ann
Doug Mann,
Petitioner,
vS.

Ir{.inneapolis Ciry Council, Respondent.

AppeNOX rO RESpONDENT,S MOTTON rON EXPBDITED

CoNsmenerroN oR ArrpRNetNELY ron Sunrrv BoNo

Dated: January 15,2014

Descrintion
Second Affidavit of Rick Collins filed in Woodruffv. City of Minneapolis, State of Minnesota District Court, Fourth Judicial District,
Case

Exhibit No.

No.

27-CV-1321254

Exhibit I

Affidavit of Susan Segal filed in llroodruff v. City of Minneapolis, State of Minnesota District Court, Fourth Judicial District, Case No. 27-CV-1321254 Affidavit of Peter W. Ginder filed in Woodruff v. City of Minneapolis, State of Minnesota District Court, Fourth Judicial District, Case No. 27-CV-1321254 Affidavit of Kevin Carpenter filed in ll'oodruff v. City of lv{inneapolis, State of Minnesota District Court, Fourth Judicial District, Case No. 27-CV-1321254 Affidavit of Michele Kelm-Helgen filed in Mann v. Schowalter, State of Minnesota Supreme Court, No. Al4-0029 Affidavit of James Schowalter filed in Mann v. Schowalter, State of Minnesota Supreme Court, No. Al4-0029

Exhibit 2

Exhibit

Exhibit 4

Exhibit

Exhibit 6

State of Nfinnesota

In Court of Appeals
In re: Doug lrfann
Doug Nlann,
Petitioner,
vS.

Nlinneapolis Ciry Council,

Respondent.

EXHIBIT 1ro ReSpoNDENT's MorroN ron ExpeDITED CoNsroERATroN oR ArrenNATrvELy roR Sunrry BoNo

Dated: January 15,2014

Stephanie Woodruff; Dan Cohen; and PaulOstrow, Plaintiffs,

v.

The City of Minneapolis; and Minneapolis Park and Recreation Board, Defendants.

STATE OF MTNNESOTA

couNw oF HENNEPTN )

l )

ss.

I am the Vice-President of Development for Ryan Companies U.S., lnc.

('Ryan"). I subrnit this affidavit on behalf of Ryan and in support of the Defendant City's
motion for the posting of a bond pursuant to Minn. Stat. S 562 with respect to the
"Downtown East" proposal, with which I have been actively involved over the past year.

2.
as the

An integral and essential part of the Downtown East project is that the City

acquire from Ryan green space purchased and developed in turn by Ryan and known
uYard."

The Plaintiff in the above action seeks a declaration that the City may not

acquire the Yard.

3.

The subject property for the Downtown East project is to be purchased by

Ryan from the Star Tribune Media Company, LLC (the'Star Tribune"). The purchase agreement provided for a closing date of December 27,2013. Municipal bond financing

essential for the project has not been provided and will not be provided if the City of
Minneapolis is found to be unable to acquire the Yard.

4.

Ryan was unable to close the transaction on December 27, 2013. The

continued pendency of this action and the challenges raised as to the ability of the City of Minneapolis to issue bonds to ftnance the project rnade such a closing unfeasible.

5.
Cancellation.

The Star Tribune provided Ryan a Notice of Cancellation on December

27, 2013. The purchase agreement provides for a 30day cure period for a Notice of

6.

Ryan is now proceeding toward

a land closing on Friday

January 24,

2014, within the 30day cure period. However, no additional contract extensions are
available to Ryan in the purchase agreement.

7.

This litigation has placed a cloud on the City's power to issue the bonds

essential to the transaction. Unless that cloud is lifted, then the market will not provide

Ryan with the bridge financing necessary to close the transaction and permanent
financing in the form of municipal bonds will be unavailable.

8.

Unless this action

is dismissed, Ryan will be unable to close the

transaction or to obtain additional extensions to close. ln lieu of dismissal, a substantial

bond under Minn. Stat. $ 562 is necessary to provide some compensation for the
resulting damage.

Fufther your affiant saith nof-

:: } January,2014.

i f 1

State of Minnesota

In Court of Appeals
In re: Doug Mann
Doug Mann,
Peutioner,
vs.

Nfinneapolis City Council,

Respondent.

EXHIBIT 2 ro ReSpoNDBNT's MotToN rOn EXpBDITED CoNsmeRATIoN on ATTenNATIvELY ron Sunery BoNo

Dated: January 15,2014

D:STR:CT COURT FOURTH JUDiC:AL D:STRiCT

Stephanie Woodruff; Dan Cohen; and Paul Ostrow, Plaintiffs,

v.

Court File NoB 27]CV]13] 21254 AFF:DAV:T OF SuSAN SECAL

The City of Minneapolis and Minneapolis Park and Recreation Board,

Defendants.

STATE OF MTNNESOTA ) ) couNTY oF HENNEPTN ) Your Affiant, being first duly sworn on oath, deposes and states as fotlows:

1. 2.

I am

the City Attomey for the City of Minneapotis.

When the City of Minneapolis issues general obtigation bonds, as part of

the Official Statement, I affirmatively review the Litigation section of those Statements
with regard to the offering of the bonds. As part of that review, I make a certification of
nonliligation and an approving legal opinion for purchasers of the bonds that no litigation is pending or threatened challenging the validity of City actions in issuing the bonds.

3.

Typically, the Litigation section of the Official Statement contains language

to the following effect:

Based on the actua! knowledge of the undersigned, without inquiry or investigation, except as disclosed in the Official Statement, there ii no action, suit, proceeding or investigation by or before any court, agency, or gther governmental or administrative board or body, p6nding againsi ttre city or to our knowledge, threatened, challenging or contesting the existence or powers of the City, the authorization oi any officers of the city

to act in their respective capacities, or the issuance of the Bonds, or in vtrhich an unfavorable decision, ruling, or filing would materially adversely affect the validity or enforceability of the Documents, the performance by the Cig of any of its obligations thereunder, or the issuance of the Bonds.

4. 5.

As part of the bond issuance for the Downtown East Project, I must issue

an opinion of nonlitigation similar to the above paragraph.

lf this lawsuit is pending when the City

proposes to issue the General

I

Obligation bonds for the acquisition

of park land for the Downtown East Project,

betieve that lwould have to disclose the existence of this lawsuit.

6.

Based upon my discussions with the City's outside bond counsel, if this

litigation is pending, the disclosure of the pending litigation will have a significant effect on the issuance or sale of the general obligation bonds and the City may not be able to
issue or sellthe bonds.

7.

I have been directly involved in the negotiations for the Downtown East

project. The 1-2l3rds blocks of green space, referred to as the "Urban Park" or "The
Yard," have always been a required element of the project and an essential condition for

the anticipated owner of the two office towers. The creation of a publicly owned green
space has also been critical in the City's and decision to participate in the project. The

housing, office and retail components of the project cannot be divided and proceed
without the green space component.

Further Affiant sayeth naught.

:W c I T
Notafr Public My Commission expires:

l- 3t ' Ae)l

HELEN H PETERS NOrARY PuOtlCE MIHESOTA H F g =

State of Minnesota

In Court of Appeals
In te: Doug Mann
Doug Nfann,
Petitioner,
vs.

Minneapolis Ciry Council,

Respondent.

EXHIBIT 3 To RESPONDENT'S MOTION FOR ExPEDITED CONSIDERAT10N OR ALTERNATW ELY FOR SURETY BOND

Dated: January 15,2014

D:STR:CT COuRT HJUD:C:AL D:STR:CT FOUR

Stephanie Woodruff; Dan Cohen; and PaulOstrow,

Plaintiffs, v.

13] 212g Court Fi!o No.27] CV] AFF:DAV:T OF PETER W. G:NDER

The City of Minneapolis and Minneapolis Park and Recreation Board,

Defendants.

STATE OF MINNESOTA ) ) COUNTY OF HENNEPIN ) Your Affiant,being flrst duly sworn on oath,deposes and states as fbllows: . 1. :am of the attomeys represenlng the C:ty of Minneapoa referenced matter. 2. Attached ls a true and correct copy of RespOnsilble Coverr7a Rosevillle Cily oF ROsevffre,2012 1rVL 1380409(Minn.Ct.App.ApS co for 12332012)an s in the above]

unpublished decision.
Further Affiant sayeth naught.

2014. B

B 1T My Commission expires: R] [ M
HELEN H PETERS Q { [

Public

Page 2

of4

Westtbw.
Page

Not Reported in N.W.2d,

20l2WL

1380409 (Minn.App.)

(Cite as: 2012 WL 13E0409 (Minn.App.))

H
Only the Westlaw citation is cunently available. NOTICE: THIS OPINION IS DESIGNATEO eS UNPUBLISHED AND MAY NOTBB CITED

to post a surety bond pursuant to Minn.Srat. $ 562.02 (2010), and because RGR's failure to post
0rat bond cornpelled the court to dismiss the action,

wcaffrm.
DECISION $ 562.02, a public body defending an action questioning its conduct "in the course of the authorization or salc, hsuance or

EXCEPTASPROVIDED BY MINN. ST. SEC.

480A.08(3).

Under Minn.Stat.

Court of Appeals of Minnesota. RESPONSI BLE GOVERNANCE FOR ROSEVILLE, Appellant,

delivery of bonds"may

CITY oF ROSEVILLE, Respondenr.

No.

Al l-2216. April21,2012.

movo the court for an order requiring the party, or parties, bringing such action to file a surety the court determines that loss or bond.... damage to the public or taxpayers may result from tho pcndcncy of lhe action or proceeding, the court may rcquire such pa$y, or parties, to

If

Review Denied July 17,2012.

filb a surety bond....

Ramsey County District Court, File No. 624V-lr-9250. Jererny P. Greenhouse, Jeffiry D. Gram, Grcenhouse & Gram LLC, Minneapolis, MN, for
appellant.

Scott G. Knudson, Diane B. Bratvold, Maren F. Grier, Briggs and Morgan, P.A., Minneapolis, MN,
for rtspondent.

In determining whether to requitt a bond what amount, the court should consider '\ryhether the action presents substantial constitutional issues or substantial issues of statutory construction, and the likelihood of a party provailing op thesc issues." Id. If the pafty bringing the action fails to pay a rcquired bond within a reasonable timc provided by the district court, Ule
and

/d

in

aclion must be dismissed with prejudice. Id.

Considered and decided by SCIIELLI{AS, Presiding Judge; JOHNSON, Chief Judge; and
I(ALITOWSKI, Judge. UNPUBLISHED OPINION KALITOWSKI, Judge. *l Appellant Responsible Governance for Roseville (RGR) challenges the district court's
dismissal

The disrict court exercises broad discretion in dctermining "the necessiqr of a surety boud to protect the public interest, the amount of the bond and the 'reasonable time' allowed for the filing of the bond." Pike v. Gunyou, 491 N.W2d 288,291 (Minn.l992) (quoting Minn.Stat. $ 562.02). The
district courds decision to require a surety bond will be upheld absent a clcar abuse ofdiscretion. /d

Rosoville arising out

of its

claims against respondent City

unabthorized decision to issue gateral-obligation bonds under ils port-authority powers without

of the crtys atlegedly

of

declaratory judgment

Here, RGR initiated 0n action seeking and injunctive relief to

holding a public referendurn. Because the disnict court did not abuse its discretion in requiring RGR

preclude the city from issuing approximately $27 million in general-obligation bonds to firnd a new firehouse and improvunenB to its parks system. The disrict court denied RGRs motion for

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Page 3

of4

Not Reported in N.W2d, 20l2WL t380409 (Minn.App.)

Page2

(Cltc os: 2012 WL 1380409 (Mlnn.App.))

temporaly injunctive relief, grantcd the citfs request to require a surety bond, and required RGR
to obtain a $570,000 surety bond within two weeks.

Whsn RGR failed to obtain the re4uired bond within that timefrarne, the district court disrnissed
the action with prejudice.

RGR asscrts that the district court abused its

provisions, Minn.Stat. 0$ 469.152 -.165 (2010). RGR assorts that thc district court erred in its interpretation and application of the port-authority considered RGR's likelihood of statut$ when suscess on the merits. Specifically, RGR asserts 0rat the city's proposed projects do not fall within the purposes for which a port authority can issuc gencral.obligation bonds, and that the district court

it

bond. Wo disagrce. Consistcnt witb the requiroments of Mion.Stat. $ 562.02, rhe district
court made express frndiogs that the city would suffer damages by virtue of the pendency of the
action in ttre form of construction delay costs on
projects to be fundcd by the bonds, additional fees that would be incured if the city was forced to rcissue the bonds in a subsequent calendar year, and additional interest that would be incurred if the city was not able to tako advantage of historically low intercst ratcs. The court concluded the bond was appropriate because "the citizens of Roseville, because of this dispute, are now in a position where the mere existence of this lawsuit is going to oost the citizens of Roseville money, whether they are

discretion by granting the city's request for a surety

thus ened

in determining that it

has

tow

likelihood of success on the merits.

plaintiffs in tlris lawsuit or noL" The court also considered, as required by the statute, the potential merits of RGR's legal challenges, concluding that
there was a low likelihood that RGR would succeed on the meri6. We conclude that on this record, the dishict coun properly exercised its broad discrction under Minn.Stat. $ 562.02 to require a surcty bond.

But we need not determine with precision the likelihood of RGR's success on the merits because, consistent with Mim.Stat. $ 562.02, the district court primarily relied on the losses that the city would potentially suffer during thc pendoncy of the action. See Pike, 491 N.W.2d at 29l-92 (affrming rcquirement of $30 million surety bond based on dhtrict court's detennination that mere pendency of temporary injunction). lawsuit had effect Moreover, although the stahrtc rcquires a district court to consider a party's likelihood of success, it does nol preclude a court from requiring a surty bond in cases where that party may succeed on iil the disnict court ened in claims. Thus, even concluding that RGR's likelihood of success on the meriB was low, the disrict court acted within its discretion in requiring a surety bond.

of

if

*2 Ahhough not technically a port authority, the city is authorized to exercise the powers of a port authority. .See Minn.Stat. $ 469.082 (2010) (authorizing the City of Rosevilte to exercise the powem of a port authority). Port-authority powers
Minn.Stat. g 469.060, subd. I (2010) (authorizing issuance of general-obligation bonds without a referendum); see a/so Minn.Stat. $ 469.059, subd. 15 (2010) (authorizing use of portautbority powers for purposes in the Minnesota
referendum.

RGR also asserts that the disfict court abused its discretion in setting the amount of thc bond. We disagree. The city submitted evidence of four categories of loss expected to be incuned by virtuc of dre pendency of the litigation: (l) $335,000 in construction; (2) $730,000 in additional interest costs if the city was forced to issue more than $10 million in bonds in a singlo calendar year, in which c,aso tho bonds would not be bank qualitied; (3) approximately $43,000 in preparation costs that
interest costs of up to approxhnately S292,000 in the likely evcnt that the interest rates went up before the bonds could be issued. The court

costs arising

from the delay of the

firehouse

for

include tho power to issue general-obligation bonds

cenain purposs without bolding

&e

voter

would havc to be.reincuned if the first round of bonds was not issued until 2012; and (4) addirional

Statutes municipal iodusrial

development

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Not Reported in N.W.2d,2012 WL 1380409 (Minn.App.) (Cite as:2012 WL 1380409 (Minn.App.))

accepted each

for the $730,000 in

than

of the city's expected losses except

additional intercst
costs,

reasoning that thc city could avert those losses by

issuing the bonds in offerings of les than $10 million over thrce years stafting in 2012, rather

20ll as it had ptanned. The district court's fr:ndings were not clearly erroneous and it did oot abuse its discraion io sening the amount of 0re bond.
RGR argues that intervening events that the discict court abused its discretion in setting the amount of the bond. But
demonstate
this court is limited to considering the rccord before

*3

the district court at the time that it made that decision. Thiele v. Stich, 425 N.w.2d 580, 582-83 (Minn.l988); see Bhd. ol Matnt. of Wcy Enps. v. Chlcago & Nw. Transp. Co.,827 F.2d 330, 337 n.6 (8th Cir.l987) (explaining hat review from grant of preliminary injunctive rclicf is "lirnited to the recoid before the district court a, the time it issued
the prelimioary injrutction" (emphasis sdded)).

In sum, wo conclude that tho disrict court did not abuse its discretlon in requiring a surety bond
pursuant to Mirtn.Stat. S 562.02, or in seuing the amount of that bond. Because appellant's failure to obtain the required bond mandatcd dismissal under the statute, we do not reach appellant's argument that the district court erred in denying its motion for temporary injunctive relief.

Aflirmed.
Minn.App.,20l2.
Responsible Govemancc Rosevillo

for Roseville v. City of

Not

Reported

in

N.W.2d, 2012

WL

1380409

Minn.App.)
ENDOFDOCUMENT

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=2.0&destination=atB

1m32014

State of Minnesota

In Court of Appeals
In re: Doug r\Iann
Doug Illann,
Petitioner,
vs.

Minneapolis City Council,

Respondent.

EXHIBIT 4 To IIESPoNDENT's MorToN pon ExpeDITED CoNstoenerloN oR At-tenNetrvEl-y roR SunBrv BoNo

Dated: January 15,2014

DiSTR!CTCOuRT FOuRTH JUD!C:AL D:STRiCT

Stephanie Woodruff; Dan Cohen; and Paul Ostrow, Plaintiffs,

v. The City of Minneapolb and Minneapolis Park and Recreation Board, Defendants.

13] 21254 Court File NoB27oCV]

AFF:DAV:T OF KEV:N CARPENTER

STATE OF MINNESOTA ) ) COUNTY OF HENNEP:N ) Your Affiant,being first duly sworn on oath,deposes and states as fOIlows: 1. !am the Finance OfFlcerforthe City of Minneapoa s. cess of

2. As patt of the Downtown East Prolect,the city ls in the p_

finalizing the development agreement and numerous financing documents in regard to the proposedg Yard"or parko Those documents may include,but are nota Disbursing Agreement a PrOmissory Note,a Park Mottgagel and vaa documents. 3. The inancing plan forthe Downtown East Proiect COntemplates that Ryan Companies wil:private!y lnance the orlcertOwers,residential and reta:l development at a cost estimated lo be oveF 350wni:lbn doaars. mited tO,a Ous City bOnd

4.

The Minnesota Sports Facilities Authority ("MSFA) willfund approxirnately

26.6 million dollars of project cost for the construction of skyways and a portion of the Block 1 Parking Ramp.

S.
primarily

The City will finance approximately 57 million dotlars of project costs

includes the park

by issuing general obligation bonds. This

or Yard"

(approximately 19 million dollars, including 1 million dollars in other govemment grants),

and a portion of the Block 1 ramp (approximately 33 million doliars), and other site costs

(approximately 5 million dollars).

6.

The total capital cost for the park or "Yard' are estimated

to

be

approximately 20 million doltars. The City will provide financing by issuing general
obligation bonds for approximately 18 million dollars of the capital costs, the Minnesota Vikings will donate 1 million dollars for park improvements and the City willseek at least

1 million dollars in grants from other tevels of government to finance environmental

remediation and demolition costs.

T.

The total capital cost for the parking ramp on Block 1 are estimated to be

approximately 48.9 million dollars and the City will provide financing by issuing bonds and seeking other government grants for approximately 32.6 million of the capital costs and MSFA wiittunO approximately 16.3 million dollars.

8.

The approximatety 55 mill'ron dollars. in financing for capital costs to the

project expected to come from issuing general obligation bonds is estimated to rdquire

the City to issue approximately 62 million dollars in bonds, once the. financing costs,
such as capitalized interest costs and costs of bsuance, are taken into account. The
City expects to issue two series of taxable general obligation bonds: one related to the

costs of the downtown park or "Yardo (approximately 20.5 million dollars, including
financing.costs) and another related to the costs of the parking ramp and the other site
costs (approxirnately 41.5 million, including financing costs).

9.

The general obligation bonds are expected to be paid in full through a

combination of fixed payments by Ryan and revenues from the parking ramp to be built

on Block 1 and from the Downtown East parking ramp to be owned by the MSFAlOThe
proposed Downtown East Project, based upon the City's projection, increases the tax base, with total proiected additional property taxes of approximately 3.9 million dollars in

the first year including approximatety 1.1 million dollars for the City. Assgming two
percent escalation, over the time the City's bonds are outstianding incrementat property

taies to the City are estimated to be approximately 40 to 45 million dollars.

'

10. According to the Term Sheet (attached as Exhibit A to Plaintiff's original

Complaint)

for the proposed development agreement, each of the parties to

the

agreement including Ryan Companies, the City of Minneapolis, and the MSFA have a contingency of

.1o pending or threatened litigation" which needs to be resolved prior to

11.

Based on information and belief, Ryan Companies' purchase agreement

for the purchase of the five blocks of tand owned by the Star Tribune that form the basis of the Downtown East project has a closing deadtine of December 27,2013. Ryan was unable to negotiate

extension without adding significant cost to the project and is

now'in' the staiutory 30-day cancellation period to accomplish the closing on all five
blocks.

12.

Subiect to satisfactory completion of the necessary financing and security

documents, the City anticipates issuing the general obligation bonds for the project as soon as possible in late January or early February in order to save on borrowing costs, but not later than March 31,2014, as required under the Term Sheet. Ryan Cornpanies

will have to obtain interim construction financing from a oommercial bnder to bridge the

period between the anticipated real estate closing and the bond closing. Since this
interim financing will be at substantially higher interest rates than the City bonds, each
day of delay on the City bond closing adds cost to the project.

13.

As the Finance Officer, I am familiar with the issuance by the City of

genera! obligation bonds. I am also familiar with the presentation of the proposed sale

of bonds to underwriters for such bonds. lt is my opinion and belief that if the City
Attorney has to include in her official statement notice that this litigation is pending, it at

a minimum will increase borrowing costs and is likely to have a significant disruptive
effect on the ability of the City to issue or sell the general obligation bonds for the
Downtown East Project. ln any event, the economic uncertainty this creates for all the

project participants and lenders rneans the entire Downtown East Project may be at
risk, which would entail a loss of 40-45 million dollars in additional property tax revenue for the City as wellas the loss of temporary and permanent jobs. 1 Rlant saveth naught. Further

State of Minnesota

In Court of Appeals
In re: Doug Mann
Doug Mann,
Petitioner,
vs.

Minneapolis City Council,

Respondent.

EXHIBIT

5 TO ITESPONDENT'S

MOIToN TOR EXPPDITED

CoNsroenetroN oR ArrenNetrvELY ron Sunptv BoNo

Dated: January 15,2014

Doug Mann, Linda Mann, David Tilsen, Petitioners,

Vs.

James Schowalter,

AFFIDAY Respondent.

T OF MICHELE KELM] HELGEN

STATE OF MNESOTA COIINTY OF mNNEPIN

) )SSE ) , ,States as fonow=

I,Michele Kelm\ Helgen,attr iritbeing swomJ20n 1.E My nameis Michele Kelm]

Helgen.I am a reddent ofMimesota and a public body,

the Chairperson ofthe Minnesota Sports Facilities Authority

corporate and politic,and political subdivision ofthe State ofMinnesota MSFA'').ThiS affldavit is submitted in opposition to the petition(``Petition' (g flled by petitioners Doug Marm,Linda Mann,and David Tilsen(conectively, Pctitioners")on January 10,2014 naming as respondent James Schowalter,as g Corlunissioner ofMimesota Managetrlent and Budget(``MMB")E The Petition )

sceks an order prohibiting the issuance ofcertain appropriation bonds authorized by the Minnesota State Legi lature to hnd the development and consmction Oftte

MSFA's sole public source of funds to meet its obligation to contribute funding for
the Stadium Project. To provide those necessary funds, the MSFA and MMB have
entered into the General Fund Appropriation Bond Proceeds Grant Agreement
dated Novembe

22,2013 ("Grant Agreement"). Under the Grant Agreement's

terms,

IlIIte

agreed to make a grant of the proceeds of the appropriation bond sale

to the MSFA, in a maximum amount of $498,000,000, as follows:

MMB shall make and issue the Appropriation Grant to the MSFAI, and disburse the proceeds in accordance with the provisions of this
Agreement and the State Disbursing Agreement. Grant Agreement $ 2.01. Excerpts of the Grant Agreanent are attached to this

Affrdavit

as

Exhibit C. Furttrer:

The [MSFA] shall use the Appropriation Grant solely to reimburse itself for expenditures it has already made or caused to be made, or to make or cause to be made expenditures required to be made by [the MSFA] under the terms of the Development Agreement in accordance with the applicable provisions of the Stadium Act.
Grant Agreement $ 2.03, Ex. C. Without

MI{B's

payment of appropriation bond

proceeds to the MSFA, the MSFA has no other public sources of funding for the

Stadium Project.

5.

The obligations of the MSFA and StadCo to pay the development and

construction costs of the Stadium Project and related infrastructure (collectively,

"Project Costs") are set out in the Amended and Restated Development
Agreement, dated November 22,2013 (the "Development Agreement"). Under the

Development Agreement, disbursements for the payment of Project Costs occur in

the following manner. StadCo pays the first $50,000,000 in Project Costs (the

"Team Initial Contribution"), and then the MSFA pays the next $50,000,000 in
Project Costs (such contribution, the "MSFA Contribution"), as follows: Once the Team shall have deposited all'of the Team Initial Payment into the Project Accounts and Fifty Million Dollars ($50,000,000) of Project Costs shall have been paid from the Team Initial Payment, the next Fifty Million Dollars ($50,000,000) of Project Costs shall be paid from a portion of the MSFA] Contribution . . . . Development Agreement $ 8.2(a)(iv). Excerpts of the Development Agreement
are attached to this

Affidavit

as

Exhibit D.

6.

After the MSFA has funded the MSFA Contribution of $50,000,000

of Project Costs, the MSFA and StadCo must bear all of the remaining Project
Costs on a pro rata basis such that each disbursement for thd payment of Project Costs shall be funded ratably 48.8o/oby StadCo and 51.2%by the MSFA,

as

follows:
Once Project Costs in the aggregate amount of One Hundred Million Dollars ($100,000,000) have been paid from the Project Accounts, the balance of the Team/Private Contribution and the balance of the TMSFA] Contribution shall be ratably paid into the Project Accounts periodically in the proportion of forty-eight and eight tenths percent (48.5%) TeamlPrivate Contribution (allocated ratably between the Team Contribution and the Private Contribution based on the aggregate amount thereof), and fifty-one and two-tenths percent MSFA] Contribution, in such amounts and at such times as may be required to timely pay the remaining Project Costs-

6t.Zli

Development Agreement $ 8.2(a)(vi), Ex. D.

4

7.

From the Stadium Project's inception through November 30, 2013,

Project Costs of $35,78 g,027have been incurred, and such costs were paid as of December 31, 2013 from the Team Initial Contribution pursuant to the Development Agreement.

B.

The MSFA and Team anticipate that Project Costs incurred for

December 2013 and payable in January,2014

will constitute

an additional

approximately $18 million, which will become due in late January, 2014. As a result, the Team Initial Contribution witl have been met, and the MSFA

Contribution will bec3me necessary to pay the next $50,000,000 in Project Costs, including the remaining Project Costs due in late January, 2Ol4- Without the

MMB,s payment of appropriation bond proceeds to the MSFA, the MSFA wilt be
unable to pay its required contribution.

g.

As of Janu ary 20l4,the MSFA and Team will have incurred

approximately S78.1 million in Project Costs. Under the Development Agreement,

the MSFA must contribute approximately $28.1 million to pay Project Costs that exceed the $50,000,000 Team Initial Contribution. Until this action is resolved and the

MMB is able to conduct its Bond Sale, the MSFA will

be unable to fund its

contribution under the Development Agreement'

10.

Core Stadium construction activities

will be delayed if the MSFA

does not receive funding. As a result of Petitioners' action, I directed that a chart

be prepared based on the knowledge of the MSFA's owner's representative on the

Stadium Project, Hammes Companies Sports Development, Inc. ("Hammes"),

who is directly involved in calculating the funding needs of the Stadium Project. This chart estimates the necessary funding for January zll4as well as the
estimated amount for February 20l4,and is attached as Exhibit

E. It is anticipated

that approximately $28.1 million of Project Costs

will

be incurred in January,2014

beyond the Team Initial Contribution and estimated that an additional $21.6

million will be incurred in February ,2014. Pursuant to the Development

Agreement, these Project Costs will be part of the MSFA Contribution, which the

MSFA is obligated to pay. Any Project Costs beyond'the MSFA Contribution are
paid on a pro rata basis, ffid the MSFA is responsible for 51.2% of those costs.

Until this action is resolved and MMB is able to conduct its Bond Sale, the MSFA

will not be able to pay its share of these Project Costs'

I

l.

Any delay in the payment of Project Costs will likely cause delays to

the Stadium constnrction schedule, which

will

cause increased costs and delays in

project completion. For example, Section

ll.7.l

gives M.A. Mortenson Company,

as Constnrction Manager, the right to suspend work in the event that it does not

receive payment:

if the IMSFAI does not make payment of the amount approved by the Architect within thirty (30) days after issuance of the Certificate for payment, or if the [MSFA] does not make payment of an arbitration award within thirty (30) days of its confirmation after conclusion of

any appeal, then the Construction Manager may, within ten (10) additional days' written notice to the [MSFA], stop the Work until payment of the amount owing has been received. The Contract Time
shall be extended appropriately and the GMP shall be increased by the amount of the Construction Manager's reasonable costs of shut-down, delay, and start-up which shall be accomplished as provided in

Article

t hereof.

Construction Services Agreement $ I I .7.1. Excerpts of the Construction Services

Agreement are attached to this Affidavit as Exhibit F.
'

lZ.

The delay of this funding also puts the 2016 opening of the Stadium in

jeopardy. The n oairg delay and subsequent delay in opening the new Stadium
could cause the Team to play an additional year at TCF Bank Stadium, could affect
the ability of Miruresota high school and collegiate sports to play locally, and could

affect other commr:nitY events.

13.

Secbnd, the

MMB's Bond Sate will provide the necessary funds for a

series of property acquisitions related to the Stadium Prbject. MSFA is scheduled

to close on the purchase of the property known as the Downtown East Parcel and Parking Rarnp ("DTE Property") on January 23,2014. The DTE Property
provides a portion of the Stadium's parking requirements, required by the Stadiunr

Legislation. See Minn. Stat. $ 4731.1l, subd. 3(5). Without the proceeds of the
Bond Sale, the MSFA has inadequate funds available to complete this purchase,
and the seller has the right to terminate the Purchase Agreement

if the purchase

is

nor completed by February 15, 2014. Further, the closing on the DTE Property on

January 23 is a condition of closing for

joint project ("Downtown East

'

Development Project") between the MSFA, the City of Minneapolis and Ryan
Companies (US), Inc. ("Ryan") (such project, the "Downtown East Development

Project").

14. To close on the DTE Property, the MSFA must pay total closing costs
currently estimated (not to exceed) $16.6 million. Thus, the MSFA requires
approximately $16.6 million by January 23,2014 to close on the DTE Properry.

Failure by MMB to conduct the Bond Sate before January 23 will prevent the closing on the DTE Property and impact the closing of the Downtown East
Development Project with Ryan.

15.

Third, if the MMB fails to conduct the Bond Sale in the immediate

future, the Downtown East Development Project

will

be adversely impacted. The

MSFA and the City are currently negotiating the Downtown East Development
Project with Ryan,

ild the MSFA'is scheduled to close on the purchase of another

I Parcel, for the Downtown
East Development Project

parcel, known as the Block

on January 24,2014. Like the DTE Property, the Block

Parcel

will

assist the

MSFA in fulfilling the statutory parking requirements. The MSFA will build a
parking stnrcture with approximately 1,600 spaces, which the MSFA will own.
,.The Block

I Parking Ramp will serve as a primary parking structure for the new

Stadium, as required under the Stadium legislation. See Minn. Stat. $ 473J.11,

subd. 3(5). The Block

I Parking

Rarnp

will also serve as a cornerstone'for

the

mixed-use component of the Downtown East Development Project. Without the

Block I Parcel, the parking needs of the Stadium and the Downtown Ehst
Development Project will be compromised. To close on the Block

I Parcel, the

MSFA will need approximately $7.7 million by January 24,2014-

16.

Failure to provide the required funds for the Downtown East

Development Project by January 24,2014

will seriously jeopardize

that project,

impacting over 5,000 jobs and the loss of over $400 rnillion of private investment.

Additionally, the development of the two block urban "Green Space" could be lost.
Further, the skyrray connection from the Stadium through the Block

I Parking

Rarnp and the mixed-use component of the Downtown East Development Project

to the existing downtown skryray system could be lost. The loss qf the skyrvay
connection would impact the ingress and egress to the Stadium and downtown and

eliminate the critical connection of the Stadium to the downtown skyway system.

Without that connection, a significantly detrimental effect could arise in the

Stadium's ability to attract and host major national and international events.

17.

Thus, any delay in the Bond Sale and payment of the proceeds from

that sale by MMB to the MSFA will have serious consequences, including

(l)

jeopardizing the DTE Property purchase; (2) jeopardizing the Downtown East

Developmenr Project; and (3) preventing the MSFA from meeting its obligation to

payProjectCoStsassociatedwithStadiumconstruction.

18. Excerpts of the Preliminary Offrcial Statement regarding MMB's

Bond Sale are attached to this Affidavit as Exhibit G.
Further Affiant SaYeth Naught.

_`R Michele Kelm-Helgen

Signed before me on

0 Notary Public

MYRNA li 115 c

10

State o[ Minnesota

In Court of Appeals
In re: Doug Nlann
Doug llfann,
Petitioner,
vs.

Minneapolis City Council,

Respondent.

EXHIBIT 6 rO RespoNDENT,s

MOTTON rON EXPBDITED CoNSIOSRATION oR ArtpRNettvELY rOR SURETY BONO

Dated: January 15,2014

Doug Mann, Linda Mann, and David Tilsen,. Petitioners,

vs. AFF]DAVIT OF JAMES SCU OWALTER

Jim Schowalter, in his official capacity as Commissioner of the Minnesota Department of Management and Budget,
Respondent.

STATE OF MINNESOTA ) ) ss. couNTY oF RAI{SEY )

James Schowalter, being first duly sworn, deposes and says the following:

l.

presently serve as Minnesota's Commissioner

of

Management and

Budget. I have held this office since January 2011. I make this Affidavit on the basis of

my personal knowledge, derived from my experience with the funding process for

the

new football stadium ("the Stadium"), as set forth in 2012 Minn. Laws, ch. 299 ("the
Stadium Legislation" and "ttre Legislation").

2.
299,

The Stadium Legislation grauts me the authority to issue and

sell

appropriation bonds for the purpose of financing the Stadium. 2012 Minn. Laws, ch.

a*,2, $ l,

subd. 3(c). Exercising this authority, the Department of Management and

Budget ("the Department") scheduled a bond pricing session for Monday, January 13 to

Tuesday, January 14,2014. The Departmetrt also planned to finalize the bond sale on

January 14, and

it

set a bond closing date of January

23. The Department

announced

these dates on the MuniOS public-finance website on January

7,2014. On January 8, the

Department posted the Preliminary Official Statement pertaining to the bond sale on the Department's website and notified various news outlets of the bond-sale schedule. More

broadly, the Department's intention

to sell bonds in

connection with the Stadium

Legislation has been a matter of public record since that Legislation was passed, and it
has been reported on nurnerous times, including as recently as November 2013.

3.

On the afternoon of January [0, 2014, Petitioners Doug Mann, Linda

Mann, and David Tilsen filed the current Petition in the Miruresota Supreme

Court.

The

filing of the lawsuit places a material cloud over the bond sale by creating doubt
regarding the issuance of the bonds, such that they are not reasonably marketable.

4.

Petitioners' decision to file after 3:00 P.M. on Friday, January

l0 left no

time for the cloud to be removed by dismissing the Petition before the bond pricing
session went forward on Monday, January

13. The bond sale cannot be finalized before

the pricing session has been held; thus, the filing has already prevented the bond sale from being finalized as scheduled on January 14. Attached hereto as Exhibit A is a true
and correct copy

of the press release that the Department issued on Sunday, January

'

12,

announcing the postponement of the pricing session and bond sale.

5.
iremediable:

The consequences of this delay to the State are grave and potentially

(a)

The Stadium Legislation establishes a complelq comprehensive, and intimately interconnected multi-party development and financing program for the Stadium project, such that the failure or inability of any party, including the State, to perform would materially,

expensively,

ild

perhaps fatally affect

the financing

and

construction of the project.

(b)

The State's bond issue is scheduled to close on January 23, 2014. The State's counterparties have immediate land-acquisition and financing-closing commitments that depend on the availability, as of the January 23 bond closing, of the proceeds from the State's bonds.

(c) The existence of an uruesolved lawsuit challenging the

constitutionality of a pending bond issue not only disrupts the timing sale and closing, but also creates an investrnent risk that translates to reduced market demand and higher interest costs for the

of a bond
State.

(d) A

the Stadium project would delay in the construction deleteriously affect not only the State, the City of Minneapolis, and the Minnesota Vikings Football Club, but also the hundreds of workers and businesses with a concrete interest in the Stadium project-as well as other users of the Stadium, including college baseball, high-school sports, and culn:ral and other events that otherwise would lack a comparable venue in Minneapolis-St. Paul.

of

6.

Article 2, section 1, subdivision 10(e) of the Stadium Legislation grants me

the disoretion to decide whether to file a complaint in the Minnesota Supreme Court
pertaining to the validation of the appropriation bonds provided for by the Legislation.
Such a complaint is predicated on my issuance of an order providing for the issuance of the bonds. I have not, to date, issued such an order. At present, I do not plan to exercise the discretionary authority to file a validation complaint.

Dated:January

l,ZOt+
l SCHOWALTER S Jm

Subscribed and sworn to before me on

rhis I 3 day of January,2014.

SUSAN E.GURROLA NOTARY PuBL:CE M:NNESOTA COm33g nk ||IJ 3 :B 20:S g

P Q

Respondent's Opposition to Petition for Writ of Mandamus; and Appendix

Upon:

Doug Mann 3706Logan Avenue North Minneapolis, MN 55412

By handing to and leaving a copy with Doug Mann, personally.

Affiant:

Signed and sworn to before me

1)RG:AA SOLN:TZKY
Notary Public-Minnesob
Ex[frB.trn
Ot. Irly Cor.nrasho

2Ot,

Upon:

Doug Mann 3706Logan Avenue Nonh Minneapolis, MN 55412

By handing to and leaving a copy with Doug Mann, personally.

Signed and sworn to before me

GEORGIAASOLN:T]W I NmryPdi V H A c \ n"om11.a"7

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Wa linm Z.Pentolovitch Direct Dhi:(612)672] 8338 Direct F8X:g 12)g 2] 8338 bill_peg ravircac"as ac "

January 15,2014

Doug Mann 3706 Logan Avenue N. Minneapolis, MN 55412

Re:

In re: Doug Mann

Doug Mann, Petitioner vs. Minneapolis City Council, Respondent Court of Appeals File No: Af4-0026

Dear Mr. Mann: Enclosed and served on you is Respondent's Motion for Expedited Consideration or Alternatively for Surety Bond and Appendix. Sincerely,

William Z. Pentelovitch
WZPlkb:rotozoz Enclosures

cc:

Clerk of Minnesota Court of Appeals (w/Enclosures)

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William Z. Pentelovitch
Direct Dial: (612) 672-E338 Direct Frx: (612) 642{338
bil L pe nte I owtch(@mas i on c om

January 16.2014

C?;r--: -APF-.- - --.-.?3

Minnesota Court of Appeals Office of The Clerl< of Appellate Courts 305 Minnesota Judicial Center 25 Rev. Dr. Martin Luther King. Jr. Boulevard St. Paul, MN 5515t

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162ii4

Re:

Mann Doug Mann, Petitioner vs. Minneapolis City Council, Respondent Court of Appeals File No: A14-0026
Dou;3

In re:

Dear Clerk of Appr:llate Courts: Enclosed for filing please find the original and 4 copies of Respondent's Motion for Expedited Consideration or Alternatively tbr Surety Bond and Appendix.

Also enclosed plea:;e find the original and four copies of the affidavits of service for Respondent's Opposition which was filed yesterday and Respondent's Motion which is being filed with this letter'.

Sincerelyr,r)

(/L
Pentelovh--

William Z.

cc:

WZPlkb:torozrxr Doug Mann