Minneapolis motion

8/13/2019 Minneapolis motion

1/52

No.A140026.FFCFlnTs

jA1162014State of Minnesota JL

In Court of AppealsIn re: Doug l\Iann

Doug lUann,

vs.I\{inneapolis Citv Council,

RESPONDENT'S MOTloN FOR ExPEDITEDCONSIDERAT10N OR ALTERNATIVELY FOR SURETYBOND

Petitioner,

Respondent.


2/52

PRO SEDougfann3706 Logan Avenuc N.linneapoLs, lN 55412Tclcphone:(61 8248800P

MasLoN Eoer-ueN BonrrreN & BneNo, LLPWilliam Z. Pentelovitch (#85078)David F. Herr (#44441)Irlichael C. itlcCarthy (#230a06)Haley N. Schaffer (#313099)John T. Duffey (#0392157)3300 Wells Fargo Center90 South Seventh StreetiUinneapolis, IrIN 55102-4140Telephone : (612) 67 2-8200OF COUNSE'-r 'Susan L. Scgal (#137157)Peter W. Ginder (#35099)Sarah C.S. I\{claren (#345878)Office of the City AttornevCiw Hall-Room 210350 South 5rh StreetMinneapolis, MN 55-115Telephone : 61 2- 67 3 -247 8Attorney./br fu po nde n t


3/52

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 footballstadium in dorvntorvn Minneapolis. '[his delav has cast a cloud of uncertainty ovcr rhefinancing of this proiect, and this uncertainw has caused, and will continue to cause, harm tothe Ciw of lrlinneapolis and its taxpavers, as rvell as to the State and other public and privateentities. T'o mitigate this harm, Respondent Minneapolis City Council respecrfully movesthis Court for expeditcd consideration of l\{ann's Petition for Writ of N{andamus.Alternativelv, should this Court dcny expedited considerarion, Respondent respectfullyrequests that this Court ordcr N{ann to provide a surery bond of $10 million. Such a bond isrvarranted under IUinn. Stat. $ 562.02 bccause Mann's Petition questions thc validity of anaction taken by a public body in the course of "the authorization or sale, issuancc or deliveryof bonds" andf or "the makingof a contract for public improvcmenr."II. Statement of Facts

Nlann's Pedtion seeks to undermine the current program to develop and finance anerv football stadium ("Stadium') and related sites in dorvnrorvn lUinneapolis. ThisProgram, enacted by the Nlinnesota Legislature at 201,2I\Iinn. Larvs, ch. 299 ("StadiumLegislation"), splits thc cost of building thc Stadium bcnveen rhe orvner of the I\linnesotaYikings, the Statc of llinnesota, and the Cirl' of lllinneapolis. See id. arr. 1, SS 1 5, 19 [r alsoobligates the Ciry to pay a share of Stadium's operating costs and to make an annualcontribution to the Stadium's capital improvement fund. See id. ar. 1, $ 18, art.3, S 1.


4/52

Pursuant to the Stadium Legisladon, the Cin'is authorized, but not obligated, toimpose various sales taxes to fund its obligations. -fea id. art.3, SS 1-3. Thc StadiumLcgislation tasks the Commissioner of Revenue rvith collecting the revenuc generated bythese sales taxcs and remitting to the Cin' any revenue in excess of the Ciry's obligations andccrtain other costs. See id. ^rt.3, SS 1-2 Scction 2 of Arucle 3 provides that the City may usethis remittancc "to fund capital projects to further residential, cultural, commercial, andcconomic development in both dorvntorvn ir,Iinneapolis and the lUinneapolisneighborhoods, to fund other ciry expenditurcs in support of the basketball arena, othercapital projects, or for other cconomrc development, provided the ciq' mav direct excessrevenue 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 orimprovements using these taxes or any other available city resources to finance or secure thebonds." .[/.

Section 7 of lrucle 3 rc


5/52

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 thisresult, 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 thestadium and acquisition of adjacent properq', including propert)' for a public park. So longas 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 besold.1

1 In cases pcnding in Hennepin County and in the l\finnesota Suprcme Cowt, affidavitshave bcen filed describing in substantial detail the manner in rvh.ich the pendency ofliugation such as the prcsent case jcopardizes the issuancc of bonds and other transactionsrvlr.ich are set to occur rvithin the next wcek or tvo. (See, e.g., Second Affidavit of RickCollins filed in W'oodrul/'r,. Ciyy oJ Minneafolis, State of Minnesota District Court, FourthJudicial Disuict, Case No. 2l-CV-1321254 is attached as Exhibit 1 to the Appendix Frledherervith ("Collins Aff."); Affidavit of Susan Segal filed in lWoodrufl'r. Ciry qf lvlinneapolis,Stateof l\{inrresota Disuict Court, Ilourth Judicial District, Case No. 27 -C\t -7321254 is attachedas Exhibit 2 ("Segal Aff.'); Affidavit of Peter W. Ginder filed in lf,/oodrzj'r. Cily ofIvlinneapolit, State of lUinnesota Disuict Court, FourthJudicial District, Case No. 27-C\'-1321254 is attachcd as Exhibit 3 ("Gindcr Aff.'); Affidavit of Kevin Carpenter filed inVoodnrfi'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 MicheleI(clm-Flelgen filed in ,l'lann r. Stltoaalter, State of lUinnesota Supreme Court, No. A14-0029 isattached as Exhibit 5 ("Kelm-Helge n Aff."); and Affidavit ofJames Schorvalter filed in Mannt,. .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 anAppendix to this l\lotion. In the interest of brcviry, most of the details set forth in thoseAffidavits arc not repeatcd here. If the Coun wishes to have the wrtnesses execute scparateaffidar-its captioned in this matter, the Crty rvrll arrange to have that done.


6/52

III. ArgumentA. 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 themattcrs coming before it. It may expcdite thc consideration and disposition of suchmattcrs-and has done so in the past rvhere good cause has been shorvn. Sce, e.g., Sbukopud'Ideaakanton Sioax @akota) Connuniry r. il'Iinn. Canpai,gn Finanu d: Public Divlo.rare 8d.,586N.W.2d 406 (1\Iinn. Ct. App. 1998); I-eonard, .ftrcct 6l)eiurd p. Marquette Asso,'t.,353 N.W.2d198 (i\Iinn. Ct. App. 198+1.2

Good cause ccrtainly exists here for expedited consideration o[ IUann's mandamuspetition. The Stadium Legislauon establishes a complex and comprehcnsive developmentand financing program for thc construction and continued opcration of the Stadium andrelated sites. (Jae Schorvalter Aff. fl 5(a), Ex. 6.) The program requircs the coordinatedefforts 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 legislativescheme for Frnancing the Hubcrt H. Flumphrey Metrodome, rvhich is being rcplaced by thestadium rvhich is the subiect of the financing statute at issue hcre. As in the present case, themere cxisrencc of the litigation made it impossible for bonds to be issued for consuuction ofthe stadium, and in light of that exigency the proceedirrgs were expeditcd by order of thedistrict 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 Courtissued its final rvritten opinion affirming the trial court decision on October'19,1979. Seeillinne.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 proceedingsare appended to the decision. See, e.g., id at 432-47.


7/52

expected is likely to lead to material, expensivc, and perhaps fatal effects to the program as arvhole. (1r/.)

The mere existence of Nfann's Petition creates quesuons regarding the Cin"s abiliq' toperf


8/52

Stadium construction schedule , rvhich will in turn result in increased costs and delavs in thecompletion of the Stadrum. (Jea l(elm-Hclgen Aff. fl 11, Ex. 5.) A delay in the compleuonof the Sradium proiect rvould deleteriously affect numerous scores of others bevond thcCiq', tlrc Srare, and the Ivlinnesota Vikrngs Football club-including the hundreds of workersand businesses with a concrete interest in the Stadium Project and the potential users of theStadium as a venue for college baseball, high school sports, cultural, and other events. (JaaI(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 propertyacquisitions relating to the Stadium Proiect. (.fee I(elm-Helgen Aff. tl 13, Ex. 5.) The IUFSAis scheduled to close on thc purchase of the property knorvn as the Downtorvn East Parceland Parking Ramp ("DTE Property") onJanuaq'23,2014' (//.) The D'fE Properryprovides 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 thispurchase, and the scller has the right to terminate the Purchase Agrecment if the purchase isnot completed by February 15,2014. (ld.)

Further, the January 23rd closing on the DTE Properry is a condition of closing for ajoint 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 anotherparccl, knorvn as rhc Block 1 Parccl, on rvhich it rvill erect a building that rvill seffe as theprimaq' parking structure for the nerv Stadium and a cornerstone for the mixed-usecomponent of the DTE Development Proiect . (Id.n 15.) If the I\{FSA does not haveadequatc bond proceeds to fund this acquisition, the DTE, Dcvelopment Proiect will be

6


9/52

seriously jeopardized-impacting over 5,000 jobs and potentially leading to host of othe rnegative 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'sPetition, and Respondent respectfull)' reque sts that it dispose of this matter as soon as ispossible.

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

harm to the Citl', the State, and numerous other entities. This harm is exacerbated by thefact that Mann rvaited nearly nvo months after entry of judgment in the Hennepin Countymandamus proceeding to file his mandamus pctition, in an apparent attcmpt to obtain thepractical equivalent of the relief that the disuict court denied him belorv. Should this Courtdenv expedited consideration of lt{ann's Petition, Respondent respectfulll' requests that thisCourt order irlann to provide a suret)' bond in the amount of $10 million to alleviate theharm that the Ciry and othets have suffeted-and will continue to suffer-during thependcncy 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


10/52

precedcnt to, or thc validiry of any action taken or proposed to be taken, byanv public body or its officers or agents in the course of the authorization orsale, issuance or delivery of bonds, the making of a contract for publicimprovement or thc validity of any proceeding to alter the organization of aschool district in any manner, such public body maF mo\re the court for anorder requiring the party, or parties, bringing such action to filc a surcty bondas hereinafter set forth. Three da1's' .r.',ren notice of such motion shall begiven. I f the public body is not a party to thc action, but if it dcems that suchaction be iniurious to the public intcrest and to the taxpavers, such publicbodl' may intenrene or appear specially for thc purpose of making suchmotion. If thc court determines that loss or damagc to the public or taxpa)'ersmay result from the pendency of the action or proceeding, the court mayrequirc such party, or parties, to file a surety bond, rvhich shall be approved bythe court, in such amount as the court may determine. The court must alsoconsidcr whether the action presents substantial constitutional issues orsubstantial issues of statutoqr construction, and the [kelihood of a parryprevailing on thesc issucs, rvhcn dctcrmining thc amount of a bond andrvhethcr a bond should be required under this section or secuon 473.(175. Suchbond shall be conditioncd for payment to the public body of any loss ordamagc rvhich mar be caused to the public bodl'or mxpayers bv such delay, tothe extcnt of the pcnal sum of such bond, i[ such party, or parties, shall notprevail therein. If such sureh' bond is not filed s,ithin a rcasonable timeallowed thercfor by the court, the action shall be dismissed with preiudice. Ifsuch 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 pubhcbody.

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


11/52

presenr any subsmndal legal issucs in his mandamus petition and is extremcly unlikely toprevail on the merits.

Given thc sustained and calculated efforts lrlann has used to cause harm to theStadium pro;ect, it is absolutcly fair for thc Coutt to impose the burden of a $10 millionsurc* bond on him in this circumstance.4IV. Conclusion

For the rcasons set forth above, Rcspondent rcspectfully re


12/52

Dated: January 15,2014

1016153

SLON EDEL RN BON L NBRND,LLP

William Z. Pentelovitch (#850bill. pentelovitch@maslon. comDavid F. Herr (#4441'l)david. herr@maslon. comI\tichael C. NlcCarthy (#230a06)mikc. mccarthy@maslon. comHaley N. Schaffer (#313099)h aley. scha ffer@ma slo n. comJohn T. Duffey (#0392157)[email protected]

3300 Wells Fargo Center90 South Seventh StreetI\{inneapolis, MN 55402-4140Telephone : (612) 67 2-8200Facsimile: (612) 672-8397Of Counsel:Susan L. Segal (#137157)susan. [email protected] W. Ginder (#35099)peter. ginder@ mrnncapolismn. govSarah C.S. I\Iclaren (#345878)[email protected] of the Ciry AttorneyCiry Hall-Room 210350 South 5th SueetIrlinneapolis, MN 5541 5Telcphone : 612-67 3 -247 8Facsimile: 612-67 3 -3362A t toney Jbr Re slto n de n t


13/52

No.A14-0026

State of MinnesotaIn Court of Appeals

In re: Doug Ir{annDoug Mann,

vS.Ir{.inneapolis Ciry Council,

AppeNOX rO RESpONDENT,S MOTTON rON EXPBDITEDCoNsmenerroN oR ArrpRNetNELY ron Sunrrv BoNo

Petitioner,

Respondent.



14/52

Descrintion Exhibit No.Second Affidavit of Rick Collins filed in Woodruffv. City of Minneapolis,State of Minnesota District Court, Fourth Judicial District,Case No. 27-CV-1321254 Exhibit IAffidavit of Susan Segal filed in llroodruff v. City of Minneapolis,State of Minnesota District Court, Fourth Judicial District,Case No. 27-CV-1321254 Exhibit 2Affidavit of Peter W. Ginder filed in Woodruff v. City of Minneapolis,State of Minnesota District Court, Fourth Judicial District,Case No. 27-CV-1321254 Exhibit 3Affidavit 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 Exhibit 4Affidavit of Michele Kelm-Helgen filed in Mann v. Schowalter,State of Minnesota Supreme Court, No. Al4-0029 Exhibit 5Affidavit of James Schowalter filed in Mann v. Schowalter,State of Minnesota Supreme Court, No. Al4-0029 Exhibit 6


15/52

No.A14-0026

State of Nfinnesota

In Court of AppealsIn re: Doug lrfann

Doug Nlann,

vS.Nlinneapolis Ciry Council,

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

Petitioner,

Respondent.



16/52

STATE OF M NNESOTACOUNTY OF HENNEP:N

D:STR CT COuRTFOURTH JUD:C:AL D:STR:CT

Court File No.27 CV 1321254SECOND AFF:DAV:T OFR CK COLL:NS

Stephanie Woodruff; Dan Cohen; andPaulOstrow,Plaintiffs,

v.The City of Minneapolis; andMinneapolis Park and RecreationBoard,

Defendants.

STATE OF MTNNESOTA l) ss.couNw oF HENNEPTN )1 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'smotion 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. An integral and essential part of the Downtown East project is that the Cityacquire from Ryan green space purchased and developed in turn by Ryan and knownas the uYard." The Plaintiff in the above action seeks a declaration that the City may notacquire the Yard.

3. The subject property for the Downtown East project is to be purchased byRyan from the Star Tribune Media Company, LLC (the'Star Tribune"). The purchaseagreement provided for a closing date of December 27,2013. Municipal bond financing


17/52

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

4. Ryan was unable to close the transaction on December 27, 2013. Thecontinued pendency of this action and the challenges raised as to the ability of the Cityof Minneapolis to issue bonds to ftnance the project rnade such a closing unfeasible.

5. The Star Tribune provided Ryan a Notice of Cancellation on December27, 2013. The purchase agreement provides for a 30day cure period for a Notice ofCancellation.

6. Ryan is now proceeding toward a land closing on Friday January 24,2014, within the 30day cure period. However, no additional contract extensions areavailable to Ryan in the purchase agreement.

7. This litigation has placed a cloud on the City's power to issue the bondsessential to the transaction. Unless that cloud is lifted, then the market will not provideRyan with the bridge financing necessary to close the transaction and permanentfinancing in the form of municipal bonds will be unavailable.8. Unless this action is dismissed, Ryan will be unable to close thetransaction or to obtain additional extensions to close. ln lieu of dismissal, a substantialbond under Minn. Stat. $ 562 is necessary to provide some compensation for theresulting damage.

2


18/52

Fufther your affiant saith nof-

::January,2014. 1

3


19/52

No.A14-0026

State of Minnesota

In Court of AppealsIn re: Doug Mann

Doug Mann,Peutioner,

vs.Nfinneapolis City Council,

Respondent.

EXHIBIT 2 ro ReSpoNDBNT's MotToN rOn EXpBDITEDCoNsmeRATIoN on ATTenNATIvELY ron Sunery BoNoDated: January 15,2014


20/52

STATE OF M:NNESOTACOUNTY OF HENNEP:N

Stephanie Woodruff; Dan Cohen; andPaul Ostrow,Plaintiffs,

v.The City of Minneapolis andMinneapolis Park and Recreation Board,

D:STR:CT COURTFOURTH JUDiC:AL D:STRiCT

Court File No 27CV 1321254AFF:DAV:T OF SuSAN SECAL

Defendants.STATE OF MTNNESOTA ))couNTY oF HENNEPTN )

Your Affiant, being first duly sworn on oath, deposes and states as fotlows:1. I am the City Attomey for the City of Minneapotis.2. When the City of Minneapolis issues general obtigation bonds, as part ofthe Official Statement, I affirmatively review the Litigation section of those Statementswith regard to the offering of the bonds. As part of that review, I make a certification ofnonliligation and an approving legal opinion for purchasers of the bonds that no litigationis pending or threatened challenging the validity of City actions in issuing the bonds.3. Typically, the Litigation section of the Official Statement contains languageto the following effect:Based on the actua knowledge of the undersigned, without inquiry orinvestigation, except as disclosed in the Official Statement, there ii noaction, suit, proceeding or investigation by or before any court, agency, orgther governmental or administrative board or body, p6nding againsi ttrecity or to our knowledge, threatened, challenging or contesting theexistence or powers of the City, the authorization oi any officers of the city


21/52

to act in their respective capacities, or the issuance of the Bonds, or invtrhich an unfavorable decision, ruling, or filing would materially adverselyaffect the validity or enforceability of the Documents, the performance bythe Cig of any of its obligations thereunder, or the issuance of the Bonds.4. As part of the bond issuance for the Downtown East Project, I must issue

an opinion of nonlitigation similar to the above paragraph.5. lf this lawsuit is pending when the City proposes to issue the General

Obligation bonds for the acquisition of park land for the Downtown East Project, Ibetieve that lwould have to disclose the existence of this lawsuit.

6. Based upon my discussions with the City's outside bond counsel, if thislitigation is pending, the disclosure of the pending litigation will have a significant effecton the issuance or sale of the general obligation bonds and the City may not be able toissue or sellthe bonds.

7. I have been directly involved in the negotiations for the Downtown Eastproject. The 1-2l3rds blocks of green space, referred to as the "Urban Park" or "TheYard," have always been a required element of the project and an essential condition forthe anticipated owner of the two office towers. The creation of a publicly owned greenspace has also been critical in the City's and decision to participate in the project. The


22/52

housing, office and retail components of the project cannot be divided and proceedwithout the green space component.

Further Affiant sayeth naught.

Notafr PublicMy Commission expires: l- 3t ' Ae)l fHELEN H PETERS

NOrARY PuOtlC MIHESOTA =

:T

3


23/52

NO.A140026

State of Minnesota

In Court of AppealsIn te: Doug Mann

Doug Nfann,Petitioner,

vs.Minneapolis Ciry Council,

Respondent.

EXHIBIT 3 To RESPONDENT'S MOTION FOR ExPEDITEDCONSIDERAT10N OR ALTERNAT ELY FOR SURETY BOND



24/52

STATE OF MINNESOTACOUNTY OF HENNEP:N

Stephanie Woodruff; Dan Cohen; andPaulOstrow,Plaintiffs,

v.The City of Minneapolis and MinneapolisPark and Recreation Board,

D:STR:CT COuRTFOURHJUD:C:AL D:STR:CT

Court Fi o No.27 CV 13212AFF:DAV:T OF PETER W.G:NDER

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 Minneapo s in the above

referenced matter.2. Attached ls a true and correct copy of RespOnsilble Coverr7aco for

Rosevillle Cily oF ROsevffre,2012 1rVL 1380409(Minn.Ct.App.Ap 12332012)anunpublished decision.

Further Affiant sayeth naught.

2014.

Public

HELEN H PETERS[My Commission expires: `1


25/52

Page 2 of4

Westtbw.Not Reported in N.W.2d, 20l2WL 1380409 (Minn.App.)(Cite as: 2012 WL 13E0409 (Minn.App.))

HOnly the Westlaw citation is cunently available.NOTICE: THIS OPINION IS DESIGNATEO eSUNPUBLISHED AND MAY NOTBB CITEDEXCEPTASPROVIDED BY MINN. ST. SEC.480A.08(3).

Court of Appeals of Minnesota.RESPONSI BLE GOVERNANCE FORROSEVILLE, Appellant,CITY oF ROSEVILLE, Respondenr.

No. Al l-2216.April21,2012.Review Denied July 17,2012.Ramsey County District Court, File No.624V-lr-9250.Jererny P. Greenhouse, Jeffiry D. Gram,Grcenhouse & Gram LLC, Minneapolis, MN, forappellant.Scott G. Knudson, Diane B. Bratvold, Maren F.Grier, Briggs and Morgan, P.A., Minneapolis, MN,for rtspondent.Considered and decided by SCIIELLI{AS,Presiding Judge; JOHNSON, Chief Judge; andI(ALITOWSKI, Judge.

UNPUBLISHED OPINIONKALITOWSKI, Judge.*l Appellant Responsible Governance forRoseville (RGR) challenges the district court'sdismissal of its claims against respondent City ofRosoville arising out of the crtys atlegedlyunabthorized decision to issue gateral-obligationbonds under ils port-authority powers withoutholding a public referendurn. Because the disnictcourt did not abuse its discretion in requiring RGR

Page I

to post a surety bond pursuant to Minn.Srat. $562.02 (2010), and because RGR's failure to post0rat bond cornpelled the court to dismiss the action,wcaffrm.DECISIONUnder Minn.Stat. $ 562.02, a public bodydefending an action questioning its conduct "in thecourse of the authorization or salc, hsuance ordelivery of bonds"may

movo the court for an order requiring the party,or parties, bringing such action to file a suretybond.... If the court determines that loss ordamage to the public or taxpayers may resultfrom tho pcndcncy of lhe action or proceeding,the court may rcquire such pa$y, or parties, tofilb a surety bond..../d In determining whether to requitt a bondand in what amount, the court should consider'\ryhether the action presents substantialconstitutional issues or substantial issues ofstatutory construction, and the likelihood of a partyprovailing op thesc issues." Id. If the pafty bringingthe action fails to pay a rcquired bond within areasonable timc provided by the district court, Uleaclion must be dismissed with prejudice. Id.The disrict court exercises broad discretion indctermining "the necessiqr of a surety boud toprotect the public interest, the amount of the bondand the 'reasonable time' allowed for the filing ofthe bond." Pike v. Gunyou, 491 N.W2d 288,291(Minn.l992) (quoting Minn.Stat. $ 562.02). Thedistrict courds decision to require a surety bond will

be upheld absent a clcar abuse ofdiscretion. /dHere, RGR initiated 0n action seekingdeclaratory judgment and injunctive relief topreclude the city from issuing approximately $27million in general-obligation bonds to firnd a newfirehouse and improvunenB to its parks system.

The disrict court denied RGRs motion for

O 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

htp://web2.westlaw.com/print/printstream.aspx?utid=l&prff=HTMLE&vr-2.0&destination=at... ll3l20l4


26/52

Page 3 of4Page2Not Reported in N.W2d, 20l2WL t380409 (Minn.App.)(Cltc os: 2012 WL 1380409 (Mlnn.App.))

temporaly injunctive relief, grantcd the citfsrequest to require a surety bond, and required RGRto obtain a $570,000 surety bond within two weeks.Whsn RGR failed to obtain the re4uired bondwithin that timefrarne, the district court disrnissedthe action with prejudice.RGR asscrts that the district court abused itsdiscretion by granting the city's request for a suretybond. Wo disagrce. Consistcnt witb therequiroments of Mion.Stat. $ 562.02, rhe districtcourt made express frndiogs that the city wouldsuffer damages by virtue of the pendency of theaction in ttre form of construction delay costs onprojects to be fundcd by the bonds, additional feesthat would be incured if the city was forced torcissue the bonds in a subsequent calendar year, and

additional interest that would be incurred if the citywas not able to tako advantage of historically lowintercst ratcs. The court concluded the bond wasappropriate because "the citizens of Roseville,because of this dispute, are now in a position wherethe mere existence of this lawsuit is going to oostthe citizens of Roseville money, whether they areplaintiffs in tlris lawsuit or noL" The court alsoconsidered, as required by the statute, the potentialmerits of RGR's legal challenges, concluding thatthere was a low likelihood that RGR would succeedon the meri6. We conclude that on this record, thedishict coun properly exercised its broad discrctionunder Minn.Stat. $ 562.02 to require a surcty bond.*2 Ahhough not technically a port authority,the city is authorized to exercise the powers of aport authority. .See Minn.Stat. $ 469.082 (2010)(authorizing the City of Rosevilte to exercise thepowem of a port authority). Port-authority powersinclude tho power to issue general-obligation bondsfor cenain purposs without bolding a voterreferendum. &e Minn.Stat. g 469.060, subd. I(2010) (authorizing issuance of general-obligationbonds without a referendum); see a/so Minn.Stat. $469.059, subd. 15 (2010) (authorizing use of port-autbority powers for purposes in the MinnesotaStatutes municipal iodusrial development

provisions, Minn.Stat. 0$ 469.152 -.165 (2010).RGR assorts that thc district court erred in itsinterpretation and application of the port-authoritystatut$ when it considered RGR's likelihood ofsuscess on the merits. Specifically, RGR asserts0rat the city's proposed projects do not fall withinthe purposes for which a port authority can issucgencral.obligation bonds, and that the district courtthus ened in determining that it has a towlikelihood of success on the merits.

But we need not determine with precision thelikelihood of RGR's success on the merits because,consistent with Mim.Stat. $ 562.02, the districtcourt primarily relied on the losses that the citywould potentially suffer during thc pendoncy of theaction. See Pike, 491 N.W.2d at 29l-92 (affrmingrcquirement of $30 million surety bond based ondhtrict court's detennination that mere pendency oflawsuit had effect of temporary injunction).Moreover, although the stahrtc rcquires a districtcourt to consider a party's likelihood of success, itdoes nol preclude a court from requiring a surtybond in cases where that party may succeed on iilclaims. Thus, even if the disnict court ened inconcluding that RGR's likelihood of success on themeriB was low, the disrict court acted within itsdiscretion in requiring a surety bond.

RGR also asserts that the disfict court abusedits discretion in setting the amount of thc bond. Wedisagree. The city submitted evidence of fourcategories of loss expected to be incuned by virtucof dre pendency of the litigation: (l) $335,000 incosts arising from the delay of the firehouseconstruction; (2) $730,000 in additional interestcosts if the city was forced to issue more than $10million in bonds in a singlo calendar year, in whichc,aso tho bonds would not be bank qualitied; (3)approximately $43,000 in preparation costs thatwould havc to be.reincuned if the first round ofbonds was not issued until 2012; and (4) addirionalinterest costs of up to approxhnately S292,000 inthe likely evcnt that the interest rates went upbefore the bonds could be issued. The court

O 2014 Thornson Reuters. No Claim to Orig. US Gov. Works.

http:llweb2.westlaw.com/print/printstream.aspx?utid:1&prfl=HTMLE&vr=2.0&destination=at.. . U32OA


27/52

Page 4 of4Page 3Not Reported in N.W.2d,2012 WL 1380409 (Minn.App.)(Cite as:2012 WL 1380409 (Minn.App.))

accepted each of the city's expected losses exceptfor the $730,000 in additional intercst costs,reasoning that thc city could avert those losses byissuing the bonds in offerings of les than $10million over thrce years stafting in 2012, ratherthan 20ll as it had ptanned. The district court'sfr:ndings were not clearly erroneous and it did ootabuse its discraion io sening the amount of 0re bond.*3 RGR argues that intervening eventsdemonstate that the discict court abused itsdiscretion in setting the amount of the bond. Butthis court is limited to considering the rccord beforethe district court at the time that it made thatdecision. 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 ofpreliminary injunctive rclicf is "lirnited to therecoid before the district court a, the time it issuedthe prelimioary injrutction" (emphasis sdded)).

In sum, wo conclude that tho disrict court didnot abuse its discretlon in requiring a surety bondpursuant to Mirtn.Stat. S 562.02, or in seuing theamount of that bond. Because appellant's failure toobtain the required bond mandatcd dismissal underthe statute, we do not reach appellant's argumentthat the district court erred in denying its motion fortemporary injunctive relief.Aflirmed.

Minn.App.,20l2.Responsible Govemancc for Roseville v. City ofRosevilloNot Reported in N.W.2d, 2012 WL 1380409Minn.App.)ENDOFDOCUMENT

O 2Ol4 Thomson Reuters. No Claim to Orig. US Gov. Works.

ht": b2.westlawocom/print/pFinttt am.asPx?udd=1&pr HTMLE& =2.0&destination=at 132014


28/52

No.A140026

State of Minnesota

In Court of AppealsIn re: Doug r\Iann

Doug Illann,

vs.Minneapolis City Council,

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

Petitioner,

Respondent.



29/52

STATE OF M:NNESOTACOUNTY OF HENNEP:N

Stephanie Woodruff; Dan Cohen; andPaul Ostrow,Plaintiffs,

v.The City of Minneapolb andMinneapolis Park and Recreation Board,

DiSTR CTCOuRTFOuRTH JUD C:AL D:STRiCT

Court File No 27oCV 1321254AFF:DAV:T OF KEV:NCARPENTER

Defendants.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 Minneapo s.2. As patt of the Downtown East Prolect,the city ls in the pcess of

finalizing the development agreement and numerous financing documents in regard tothe proposedYard"or parko Those documents may include,but are not mited tO,aDisbursing Agreement a PrOmissory Note,a Park Mottgagel and va Ous City bOnddocuments.

3. The inancing plan forthe Downtown East Proiect COntemplates that RyanCompanies wil:private y lnance the orlcertOwers,residential and reta:l development ata cost estimated lo be oveF 350 ni:lbn do ars.


30/52


31/52

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

9. The general obligation bonds are expected to be paid in full through acombination of fixed payments by Ryan and revenues from the parking ramp to be builton Block 1 and from the Downtown East parking ramp to be owned by the MSFAlOTheproposed Downtown East Project, based upon the City's projection, increases the taxbase, with total proiected additional property taxes of approximately 3.9 million dollars inthe first year including approximatety 1.1 million dollars for the City. Assgming twopercent escalation, over the time the City's bonds are outstianding incrementat propertytaies 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 originalComplaint) for the proposed development agreement, each of the parties to theagreement including Ryan Companies, the City of Minneapolis, and the MSFA have acontingency of .1o pending or threatened litigation" which needs to be resolved prior to

11. Based on information and belief, Ryan Companies' purchase agreementfor the purchase of the five blocks of tand owned by the Star Tribune that form the basisof the Downtown East project has a closing deadtine of December 27,2013. Ryan wasunable to negotiate I extension without adding significant cost to the project and isnow'in' the staiutory 30-day cancellation period to accomplish the closing on all fiveblocks.

3


32/52

12. Subiect to satisfactory completion of the necessary financing and securitydocuments, the City anticipates issuing the general obligation bonds for the project assoon 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 Cornpanieswill have to obtain interim construction financing from a oommercial bnder to bridge theperiod between the anticipated real estate closing and the bond closing. Since thisinterim financing will be at substantially higher interest rates than the City bonds, eachday 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 ofgenera obligation bonds. I am also familiar with the presentation of the proposed saleof bonds to underwriters for such bonds. lt is my opinion and belief that if the CityAttorney has to include in her official statement notice that this litigation is pending, it ata minimum will increase borrowing costs and is likely to have a significant disruptiveeffect on the ability of the City to issue or sell the general obligation bonds for theDowntown 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 atrisk, which would entail a loss of 40-45 million dollars in additional property tax revenuefor the City as wellas the loss of temporary and permanent jobs.

Further lant saveth naught.

4


33/52

No.A14-0026

State of Minnesota

In Court of AppealsIn re: Doug Mann

Doug Mann,Petitioner,


Respondent.

EXHIBIT 5 TO ITESPONDENT'S MOIToN TOR EXPPDITEDCoNsroenetroN oR ArrenNetrvELY ron Sunptv BoNo



34/52

STATE OF MINNESOTAIN SUPREME COURTNoo A140029

Doug Mann, Linda Mann, David Tilsen,Petitioners,

Vs.James Schowalter,

Respondent.AFFIDAT OF MICHELE KELM

HELGENSTATE OF MNESOTA )COIINTY OF mNNEPIN )SS)

I,Michele KelmHelgen,attr iritbeing swomJ20n,,States as fonow=1. My nameis Michele Kelm Helgen.I am a reddent ofMimesota and

the Chairperson ofthe Minnesota Sports Facilities Authority a public body,corporate and politic,and political subdivision ofthe State ofMinnesota(MSFA'').ThiS affldavit is submitted in opposition to the petition(``Petition' )flled by petitioners Doug Marm,Linda Mann,and David Tilsen(conectively,ctitioners")on January 10,2014 naming as respondent James Schowalter,asCorlunissioner ofMimesota Managetrlent and Budget(``MMB") The Petitionsceks an order prohibiting the issuance ofcertain appropriation bonds authorizedby the Minnesota State Legi lature to hnd the development and consmction Oftte


35/52

new stadhm being deJgned and constructed in MirLneapdis,Mimesota(theStadium Prdect")in cOttunctiOn with Minnesota Vikings Football,LLC(theeam'')and itS afflliated entity,MirLneSOta Vikings Football Stadium,LLC

( StadCO")

2. As described n er below,the flling ofthe Petition has alreadycaused a delay in the sale ofbonds necessary to fund the Stadium Pr ect.IfthePctition is not tts01ved very soon,the delays it CausesTeaten great harm to keyaspects ofth Stadium Prdect itSelfand related Prate development.The Petitionputs at Sk a S400 nililllon pr ate development attacent tO the Stadiuln P jecl and

atens tO delay or preventthe hiring Ofthousands ofpeOple whO Win beemployed on the Stadium Prdect and the ivat dCive10pment.The Petition also

puts at Sk the timetable for the Stadi l PrOJect.

3. As a result Ofttc PetitiOn,MMB has annOunced thatits sale ofappropriation bondS,Originany scheduled t0 0cCur on Januttry 13 14,2014,will bedelayed urlil i 09e(Bnd Sale") aMMB'S January 12,2014 PressReleas,attached as Exhibit A;MSFA's January 12,2014 Press Release,attachedas Exhibit B.The MSFA anticipates thatthe Bond Sale Will be or may be delayeduntil this actiOn is resolVed.

4. ThefbndingandconstruCtiOnoftheStadiumisajOintundertakingbythe MSFA andthe Team(through StadCO) MMB'S BOnd Sale constitutes the


36/52

MSFA's sole public source of funds to meet its obligation to contribute funding forthe Stadium Project. To provide those necessary funds, the MSFA and MMB haveentered into the General Fund Appropriation Bond Proceeds Grant Agreementdated Novembe r 22,2013 ("Grant Agreement"). Under the Grant Agreement'sterms, IlIIte agreed to make a grant of the proceeds of the appropriation bond saleto 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 thisAgreement and the State Disbursing Agreement.

Grant Agreement $ 2.01. Excerpts of the Grant Agreanent are attached to thisAffrdavit as Exhibit C. Furttrer:

The [MSFA] shall use the Appropriation Grant solely to reimburseitself for expenditures it has already made or caused to be made, or tomake or cause to be made expenditures required to be made by [theMSFA] under the terms of the Development Agreement in accordancewith the applicable provisions of the Stadium Act.Grant Agreement $ 2.03, Ex. C. Without MI{B's payment of appropriation bondproceeds to the MSFA, the MSFA has no other public sources of funding for theStadium Project.

5. The obligations of the MSFA and StadCo to pay the development andconstruction costs of the Stadium Project and related infrastructure (collectively,"Project Costs") are set out in the Amended and Restated DevelopmentAgreement, dated November 22,2013 (the "Development Agreement"). Under the


37/52

Development Agreement, disbursements for the payment of Project Costs occur inthe 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 inProject Costs (such contribution, the "MSFA Contribution"), as follows:

Once the Team shall have deposited all'of the Team Initial Paymentinto the Project Accounts and Fifty Million Dollars ($50,000,000) ofProject Costs shall have been paid from the Team Initial Payment, thenext Fifty Million Dollars ($50,000,000) of Project Costs shall be paidfrom a portion of the MSFA] Contribution . . . .Development Agreement $ 8.2(a)(iv). Excerpts of the Development Agreementare attached to this Affidavit as Exhibit D.

6. After the MSFA has funded the MSFA Contribution of $50,000,000of Project Costs, the MSFA and StadCo must bear all of the remaining ProjectCosts on a pro rata basis such that each disbursement for thd payment of ProjectCosts 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 MillionDollars ($100,000,000) have been paid from the Project Accounts, thebalance of the Team/Private Contribution and the balance of theTMSFA] Contribution shall be ratably paid into the Project Accountsperiodically in the proportion of forty-eight and eight tenths percent(48.5%) TeamlPrivate Contribution (allocated ratably between theTeam Contribution and the Private Contribution based on theaggregate amount thereof), and fifty-one and two-tenths percent6t.Zli MSFA] Contribution, in such amounts and at such times asmay be required to timely pay the remaining Project Costs-

Development Agreement $ 8.2(a)(vi), Ex. D.4


38/52


39/52

be prepared based on the knowledge of the MSFA's owner's representative on theStadium 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 theestimated amount for February 20l4,and is attached as Exhibit E. It is anticipatedthat approximately $28.1 million of Project Costs will be incurred in January,2014beyond the Team Initial Contribution and estimated that an additional $21.6million will be incurred in February ,2014. Pursuant to the DevelopmentAgreement, these Project Costs will be part of the MSFA Contribution, which theMSFA is obligated to pay. Any Project Costs beyond'the MSFA Contribution arepaid 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 MSFAwill 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 tothe Stadium constnrction schedule, which will cause increased costs and delays inproject 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 notreceive payment:

Iif the IMSFAI does not make payment of the amount approved by theArchitect within thirty (30) days after issuance of the Certificate forpayment, or if the [MSFA] does not make payment of an arbitrationaward within thirty (30) days of its confirmation after conclusion of


40/52

any appeal, then the Construction Manager may, within ten (10)additional days' written notice to the [MSFA], stop the Work untilpayment of the amount owing has been received. The Contract Timeshall be extended appropriately and the GMP shall be increased by theamount of the Construction Manager's reasonable costs of shut-down,delay, and start-up which shall be accomplished as provided inArticle t hereof.

Construction Services Agreement $ I I .7.1. Excerpts of the Construction ServicesAgreement are attached to this Affidavit as Exhibit F. '

lZ. The delay of this funding also puts the 2016 opening of the Stadium injeopardy. The n oairg delay and subsequent delay in opening the new Stadiumcould cause the Team to play an additional year at TCF Bank Stadium, could affectthe ability of Miruresota high school and collegiate sports to play locally, and couldaffect other commr:nitY events.

13. Secbnd, the MMB's Bond Sate will provide the necessary funds for aseries of property acquisitions related to the Stadium Prbject. MSFA is scheduledto close on the purchase of the property known as the Downtown East Parcel andParking Rarnp ("DTE Property") on January 23,2014. The DTE Propertyprovides a portion of the Stadium's parking requirements, required by the StadiunrLegislation. See Minn. Stat. $ 4731.1l, subd. 3(5). Without the proceeds of theBond 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 isnor completed by February 15, 2014. Further, the closing on the DTE Property on


41/52

January 23 is a condition of closing for a joint project ("Downtown East 'Development Project") between the MSFA, the City of Minneapolis and RyanCompanies (US), Inc. ("Ryan") (such project, the "Downtown East DevelopmentProject").

14. To close on the DTE Property, the MSFA must pay total closing costscurrently estimated (not to exceed) $16.6 million. Thus, the MSFA requiresapproximately $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 theclosing on the DTE Property and impact the closing of the Downtown EastDevelopment Project with Ryan.

15. Third, if the MMB fails to conduct the Bond Sale in the immediatefuture, the Downtown East Development Project will be adversely impacted. TheMSFA and the City are currently negotiating the Downtown East DevelopmentProject with Ryan, ild the MSFA'is scheduled to close on the purchase of anotherparcel, known as the Block I Parcel, for the Downtown East Development Projecton January 24,2014. Like the DTE Property, the Block I Parcel will assist theMSFA in fulfilling the statutory parking requirements. The MSFA will build aparking 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 newStadium, as required under the Stadium legislation. See Minn. Stat. $ 473J.11,


42/52

subd. 3(5). The Block I Parking Rarnp will also serve as a cornerstone'for themixed-use component of the Downtown East Development Project. Without theBlock I Parcel, the parking needs of the Stadium and the Downtown EhstDevelopment Project will be compromised. To close on the Block I Parcel, theMSFA will need approximately $7.7 million by January 24,2014-

16. Failure to provide the required funds for the Downtown EastDevelopment 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 ParkingRarnp and the mixed-use component of the Downtown East Development Project

to the existing downtown skryray system could be lost. The loss qf the skyrvayconnection would impact the ingress and egress to the Stadium and downtown andeliminate the critical connection of the Stadium to the downtown skyway system.Without that connection, a significantly detrimental effect could arise in theStadium's ability to attract and host major national and international events.

17. Thus, any delay in the Bond Sale and payment of the proceeds fromthat sale by MMB to the MSFA will have serious consequences, including (l)jeopardizing the DTE Property purchase; (2) jeopardizing the Downtown East

9


43/52

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

18. Excerpts of the Preliminary Offrcial Statement regarding MMB'sBond Sale are attached to this Affidavit as Exhibit G.

Further Affiant SaYeth Naught.

MYRNA

Michele Kelm-HelgenSigned before me on

Notary Public

l 11 5

10

_`

0


44/52

No.A140026

State o[ Minnesota

In Court of AppealsIn re: Doug Nlann

Doug llfann,


EXHIBIT 6 rO RespoNDENT,s MOTTON rON EXPBDITEDCoNSIOSRATION oR ArtpRNettvELY rOR SURETY BONO

Petitioner,

Respondent.



45/52

STATE OF MINNESOTAIN SUPREME COURT

A140029Doug Mann, Linda Mann, and DavidTilsen,. Petitioners,

vs.Jim Schowalter, in his official capacityas Commissioner of the MinnesotaDepartment of Management and Budget,

Respondent.

AFF]DAVIT OFJAMES SCOWALTER

STATE OF MINNESOTA )) ss.couNTY oF RAI{SEY )James Schowalter, being first duly sworn, deposes and says the following:l. I 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 ofmy personal knowledge, derived from my experience with the funding process for thenew football stadium ("the Stadium"), as set forth in 2012 Minn. Laws, ch. 299 ("theStadium Legislation" and "ttre Legislation").

2. The Stadium Legislation grauts me the authority to issue and sellappropriation bonds for the purpose of financing the Stadium. 2012 Minn. Laws, ch.299, a*,2, $ l, subd. 3(c). Exercising this authority, the Department of Management andBudget ("the Department") scheduled a bond pricing session for Monday, January 13 to


46/52

Tuesday, January 14,2014. The Departmetrt also planned to finalize the bond sale onJanuary 14, and it set a bond closing date of January 23. The Department announcedthese dates on the MuniOS public-finance website on January 7,2014. On January 8, theDepartment posted the Preliminary Official Statement pertaining to the bond sale on theDepartment's website and notified various news outlets of the bond-sale schedule. Morebroadly, the Department's intention to sell bonds in connection with the StadiumLegislation has been a matter of public record since that Legislation was passed, and ithas been reported on nurnerous times, including as recently as November 2013.

3. On the afternoon of January [0, 2014, Petitioners Doug Mann, LindaMann, and David Tilsen filed the current Petition in the Miruresota Supreme Court. Thefiling of the lawsuit places a material cloud over the bond sale by creating doubtregarding 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 notime for the cloud to be removed by dismissing the Petition before the bond pricingsession went forward on Monday, January 13. The bond sale cannot be finalized beforethe pricing session has been held; thus, the filing has already prevented the bond salefrom being finalized as scheduled on January 14. Attached hereto as Exhibit A is a trueand 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. The consequences of this delay to the State are grave and potentiallyiremediable:


47/52


48/52

FIIRTHER THE AFFmNT SAYETH NOT

/Z_ated:January i l,ZOt+Subscribed and sworn to before me onrhis I 3 day of January,2014. JS SCHOWALTERSUSAN E.GURROLANOTARY PuBL:C M:NNESOTAOm33 nIJ: 20:S


49/52

AFFDAVIT OF PERSONAL SERVICEDou2 Iann.Petitioner vo Minneapolis City Council.RespondentCourt ofAppeals File No.A14 4XD26

STATE OFIINNESOTA ))SSCOUNTY OF HENNEPIN)

Mike Somberger,an agent of Platinum CouHer,being duly swom,states that at 4:42p.in.on the15th day of January,2014 he served the fonowing:

Respondent's Opposition to Petition for Writ of Mandamus; andAppendix

Upon: Doug Mann3706Logan Avenue NorthMinneapolis, MN 55412By handing to and leaving a copy with Doug Mann, personally.

Signed and sworn to before me

Affiant:

1)RG:AA SOLN:TZKYNotary Public-MinnesobIrly Cor.nrasho Ex[frB.trn Ot. 2Ot,


50/52


51/52


52/52

r' 6r.z 67z.8zoot 6tz 672.81s7tr u U' nt.t-slnn .'ttnt

ASLON13oo lVelus Fexoo Cur.r r rngo SourH Srvrurn SrnrrT.\trnNe rpoLts. llN 5,;4o.2-.1 r4o

William Z. PentelovitchDirect Dial: (612) 672-E338Direct Frx: (612) 642{338bil L pe nte Iowtch(@mas i on c om

C?;r--: --APF-.- - --.-.?3JAl,l 162ii4 ,1.,', +Si.urlir-s.

January 16.2014

Minnesota Court of AppealsOffice of The Clerl< of Appellate Courts305 Minnesota Judicial Center25 Rev. Dr. Martin Luther King. Jr. BoulevardSt. Paul, MN 5515tRe: In re: Dou;3 MannDoug Mann, Petitioner vs. Minneapolis City Council, RespondentCourt of Appeals File No: A14-0026Dear Clerk of Appr:llate Courts:Enclosed for filing please find the original and 4 copies of Respondent's Motion for ExpeditedConsideration or Alternatively tbr Surety Bond and Appendix.Also enclosed plea:;e find the original and four copies of the affidavits of service forRespondent's Opposition which was filed yesterday and Respondent's Motion which is beingfiled with this letter'.Sincerelyr,r)(/LWilliam Z. Pentelovh--WZPlkb:torozrxrcc: Doug Mann