HomeMy WebLinkAbout2001.07.31 PACKET CITY OF COTTAGE GROVE
1. •
ECONOMIC
Secretary
DEVELOPMENT
AUTHORITY
SPECIAL MEETING AGENDA
TUESDAY, JULY 31 , 2001
7:30 A.M.
1. Call to Order
2. Roll Call
3. Approval of Minutes: None
• 4. Business Items
A. Approval of development agreement with American AGCO.
B. Approval of development agreement with Twin City Poultry.
C. Approval of development agreement with First Industrial Realty Trust.
D. Approval of development agreement with EBL&S and assigns for the
Grove Plaza Project.
E. Approval of development agreement with the Development team and
entity and assigns for development of the 80th Street Redevelopment
Project.
5. Miscellaneous Business Items
6. Adjourn
J:\Economic Development\EDA Packets\2001\Agendas\July 31 Special.doc
City of Cottage Grove
r
Memo
To: Honorable Mayor and City Council
From: Michelle A. Wolfe, Assistant City Administrator
Date: 07/27/01
Re: Approval of Development Agreements
Items 4A, 4B, 4C, 4D, and 4E
Staff has been working on several development projects during the past few
months. With the conclusion of the legislative session in late June, significant
• changes were made in tax law, resulting in reductions to tax increment revenues
generated by commercial and industrial properties. However, the legislature
provided for a TIF grant program, which will provide assistance for TIF project
shortfalls, for projects approved prior to August 1, 2001. This is has resulted in
the need to finalize development agreements on various projects.
Attached is a memorandum prepared for City Council by City Administrator Ryan
Schroeder. The memo, dated 7/25/01, outlines the five development projects. At
a special meeting on July 26, 2001, City Council approved all five development
agreements. At this time, we are requesting EDA review of the projects, and
requesting approval of the same development agreements.
EDA ACTION
All motions are contingent upon City Attorney review and approval:
1. Approval of development agreement with American AGCO
2. Approval of development agreement with Twin City Poultry
3. Approval of development agreement with First Industrial Realty Trust
4. Approval of development agreement with EBL&S and assigns for the Grove
Plaza Project
5. Approval with the Development team and entity and assigns for development
of the 80th Street Redevelopment project
•
F:\Groups\PER_ECON\Economic Development\EDA Memos\2001\July 01 Special meeting.doc
ADDITIONAL INFORMATION •
At the July 26 Special Meeting, the City Council approved the program and plan
for establishment of TIF District 1-12. This will provide the framework for the
Grove Plaza and 80th Street projects, as well as possible future projects within
the district.
At the July 15 City Council meeting, there will be public hearings to consider the
awarding of business subsides to all five projects. The EDA will consider the
same business subsidy awards at the July 14 EDA meeting. This is a statutory
requirement for projects receiving over $100,000 in business assistance.
Attachments
•
•
F:\Groups\PER_ECON\Economic Development\EDA Memos\2001\July 01 Special meeting.doc
°Offfice of theZity
• Administrator
Memo
To: Mayor and City Council
From: Ryan R. Schroeder
CC: Michelle Wolfe
Date: 07/25/01
Re: Proposed Development Agreements
Background:
As Council is aware, we have been working toward various development projects
• over the past few months (in some cases over a couple of years). Upon the
completion of the last state legislative session, it became clear that the likelihood of
completion of these projects was reduced if not completed (e.g. agreements entered
into and development districts created) before August 1, 2001. The reason is that
with significant changes in tax law, tax increment revenues generated by commercial
and industrial projects is reduced significantly.
For projects completed prior to August 1, however, reductions in revenue from prior
forecasts are fundable under a state TIF GRANT PROGRAM initially created in 1997
to make up for shortfalls created by tax compression changes. Under this law a
preexisting district (which includes all of our districts in addition to the one proposed
for creation on July 26, 2001) is allowed to take actions to reduce increment shortfalls
resulting from class rate compression or the general education takeover. The
authority is allowed to uncap the original tax rate (i.e. allowing increment to be
calculated using the current tax rate rather than the rate that was certified in the year
the district was created) or change the fiscal disparities option to Option A so that the
contribution is spread to the taxing districts, rather than reducing the district's
increments. Finally, the authority is required to pool its districts (rather than running
each as a separate entity) in order to qualify for the grant. All of our financial analysis
assumes grant qualification (in that it is not a competitive process but rather a
qualification process).
•
•Page 1
We are presenting five development opportunities to the Council for consideration of •
development agreements at this time. Three are industrial park projects within an
existing tax increment economic development district (that sunsets in 2010). Two
more are in a proposed tax increment redevelopment district that would sunset in
2029. Among these various projects, while approval of the agreements will commit
each party to perform under the agreements obstacles to actual development will
continue to exist. These obstacles will be addressed below.
INDUSTRIAL DEVELOPMENT OPPORTUNITIES
AMERICAN AGCO
We are working with three prospects, American AgCo, TCP, and First Industrial
Realty Trust. The first project is on a short time frame and is considered virtually
certain to occur. The second is a firm being relocated from another community by a
redevelopment project and is dependent upon that project moving forward. The third
is a speculative multi-tenant project that will only occur if a significant amount of the
proposed space is preleased.
American AgCo is currently located in South St. Paul with leased warehousing and
distribution space in Inver Grove Heights. They are proposing to replace their current
distribution facility with a new 80,000 square foot facility just west of Advance
Corporation on 97th Street. Their principle business is as a wholesaler in the areas of
feed products, feed additives, feed commodities, vitamins/minerals, salt, and •
consulting in support of those products and their customers. They have been in
business for 65 years and currently have 115 employees (of which 60 will be in this
facility) and reported annual sales of $72,000,000. The company executive is Gary
Duclos, who is President and Chairman of the Board. Gary, and General Manager
Jon Duclos are both expected to be at your meeting for introductions and additional
questions.
The project will be constructed by Vanguard Construction (Geoffrey Benedict). It will
have a market value for tax purposes of$2,900,000 and presently is estimated to be
located on a 270,000 square foot site. The project proforma is run in a similar
fashion to CCE, Advance and TradeHome in that the City acquires the land from
WAG Farms at $0.85/SF plus $0.15 which is applied toward deferred assessments.
The City then provides for any required road or utility extensions as well as site
grading to achieve a reasonably developable site (not pad ready). Our costs for this
grading are in a not to exceed $0.30/square foot of land. This particular site has
significant grade variations. Further, the project is proposed for completion
December 31, 2001. Hence, the agreement includes a provision that the owner or
assigns will provide the grading for us as a reduction in land price. Subject to the
grading the land cost to the owner for a 270,000 SF site is $91,000. This price
results from the City providing through TIF revenues for 3 feet of land for every foot of
building constructed at a taxable market value of $45/SF. Any additional land
needed for the project is sold at $1.65/SF. In the case of this project the market
•Page 2
value is at $36.25/SF. Hence, the reduction in market value results in an additional
• $42,000 land price than would be available at the higher market value (it should be
noted that in 1998 Renewal was constructed at an agreed to EMV of $38.68 while
1999 projects used minimum values of $35/SF, which changed late in 2000 to $40
and was increased in 2001 to $45). The revenues generated off this project include
payment by WAG Farms of $40,500 in assessments, $6,758/year in annual
administrative charges, and $427,000 in TIF revenues at 6% amortized over the
seven year project life. A road extension of 97th Street will be necessary which will be
funded out of the resulting residual tax increments. Upon retirement of the district in
2010 this project is projected to contribute $116,520/year in property taxes at the
current tax rate with the new class rate schedule. Upon completion of the site plan
the above numbers may all be adjusted slightly to recognize changes in building or
lot size but any changes are not expected to be significant.
Requested Council action will be to approve the development agreement subject to
City Attorney review and approval (it is currently being drafted...for purposes of the
Council packet we will supply a draft agreement, which, if not complete by the time
this memo is sent out we will insert the old CCE agreement. All of our development
agreements follow that one for form with the only significant changes being related to
value and lot size).
• Twin City Poultry
Twin City Poultry is a wholesaler of kosher general groceries and packaged frozen
goods. It is currently located in the south metro but being relocated for a commercial
redevelopment project. They are presently in 25,253 SF of space. The company is
25 years old and operates in 23 states. They have 50 employees and pay a
minimum of $10/hour on up. They are proposing to construct a 50,000 SF facility
expandable to 90,000 SF adjacent and to the west of American AgCo on a further
extension of 97th Street. The parcel size is currently estimated at 225,000 SF.
At this point the project is expected to be constructed by Opus Corporation. It will
have a minimum market value of$2,250,000. The project will allow WAG Farms to
pay off$45,000 in assessments and will contribute $5,102/year toward administrative
expenses. The land will be sold at a price of$98,129, generate $323,500 in project
revenues and result in $68,379 toward costs associated with the 97th Street
extension. After retirement of the TIF district in 2010, this project is expected to
generate $87,960 in property tax.
Requested action if Council approval of the development agreement following the
American AgCo agreement contingent upon City Attorney review and approval.
FIRST INDUSTRIAL
•
•Page 3
First Industrial/Benson Orth has been proposing to complete a speculative multi- •
tenant building located on 95th Street adjacent to CCE Technologies. This project
would have a minimum market value of $5,121,520 with a total size of $128,038.
• Projects of this nature are much less certain in that a tenant(s)or other end users are
not currently identified and the project will not go forward without some preleasing of
the facility. The investment group likewise cannot rely upon any level of certainty of
revenue stream within the project. However, this type of product the City has been
attempting to create since the early 1990's given the advantages of facilities of this
type within the area (primarily being opportunities for small, growing, speculative or
startup companies being afforded location options, reasonably priced which allows
for improved growth potential for those concerns). The project generates $673,000
in project revenues of which all but $91,610 goes toward purchase price and site
grading. Beyond those costs the site isn't expected to generate additional
expenditures, hence residual revenues can be dedicated toward other industrial park
infrastructure improvements. This proforma assumes construction in 2001 for tax
payable 2003. If that does not occur, the project would need to either increase the
taxable market value or provide a contribution toward land in the amount of$120,000
to cover the lost TIF revenue. The parcel size is 370,312 SF and the project, if
completed is expected to generate $122,016 in annual tax upon retirement of the
district at the new tax class ratios. If completed it allows WAG Farms to pay off
$55,550 in assessments and generates $10,320/year toward administrative
expenses.
Requested action is approval of the development agreement following the American •
AgCo format contingent upon City Attorney review and approval.
GROVE PLAZA ET AL
We have been working toward the redevelopment of Grove Plaza for a number of
years. Most recently what has been proposed is construction of a 94,785 SF Home
Depot store as well as a small (64SF building plus a canopy) Rainbow Foods Fueling
Station. Additionally, a 15,120 SF Walgreen's store has been proposed on the Rose
of Sharon site adjacent to Grove Plaza. This is mentioned as redevelopment of
Grove Plaza appears somewhat dependent upon the Walgreen's project going
forward. Additionally, as part of the project Grove Plaza would be rehabilitating
approximately 46,000 SF of shopping center between Rainbow and the proposed
Home Depot.
The existing market value of the above projects is $8,884,800. It is expected that we
will create additional value at or above $4,935,200 for a total of $13,820,000. The
project revenues are projected at $1,354,666 of which $500,000 is dedicated toward
site and facade improvements to the Center and the interior 46,000 SF in between
Rainbow and Home Depot. Additionally, the Center will be removing the existing
Burger King building, deeding that property to us for drainage and utility purposes •
•Page 4
• and the City will construct a $350,000 storm retention facility providing quality and
quantity holding for the Grove Plaza, Rose of Sharon and 80th Street drainage area
(including City Hall and nearby properties). We are proposing to budget for$400,000
additional from generated project revenues to provide for district landscaping and
similar improvements and utility improvements to the larger area. The site
improvements upon the Grove Plaza site itself will be on a "pay as you go" basis
within which payments are made as revenues are created. This payment is subject
to completion of the site and facade improvements and subject to retirement of the
existing $242,900 CGTAP (as of 2003). Upon retirement of the District, this project is
projected to pay $328,080 in property taxes. During the life of the district, it will
generate $10,500/year in revenues toward administrative expenses.
This project is dependent upon Walgreen's finding a relocation opportunity. The
current opportunity for that to occur is the Rose of Sharon Church site. At this point
in time, that opportunity continues to be uncertain. However, the project is also
dependent upon this proposed action, hence we are asking for your ratification of the
development agreement as described upon contingent upon City attorney review and •
approval.
80th STREET REDEVELOPMENT
• We are currently negotiating with a large retailer to develop the site along 80th Street
between US Bank and Tutor Time. The name of that retailer cannot be released until
that party has entered into the development agreement. The City Attorney is
currently working with their attorney to complete that development agreement.
Proposed is a $4,500,000 market value project. Current market value of the parcels
(including tax exempt property) is currently at $1,414,100 making the improvement in
market value at $3,085,900 with taxes after retirement of the district projected at
$107,112. Site costs are projected at $2,200,000 with resale of the land at
$1,153,400 with TIF revenue covering the balance at$1,046,600.
In anticipation of this project it has previously been proposed that the City reconfigure
the proposed Hardwood Drive Corridor which is proposed as a separate MSA funded
$1,900,000 collector street connecting 80th Street to 70th Street in the West Draw. In
order to provide for that street construction four residential parcels (one without a
structure) and two commercial parcels would need to be purchased (one parcel is
vacant the other is a remnant off the Burnett property). For the redevelopment itself,
four commercial properties (one vacant) would need to be acquired. This would
include acquisition from eight different owners and would include relocation of some
of those owners and additional tenants.
In order for the project to proceed, the end user needs commitment by the City that
we will package the site by June 2002. In order to do that we may be faced with the
S
•Page 5
necessity of eminent domain on one or more of the parcels. If Council is not ready or •
able to make that commitment you should not approve this development agreement.
As part of the agreement, the end user must commit to a certain creation of job
opportunities, which is similar to that required of industrial developers. I believe this
party will commit to 20 full time and 50 to 100 part time jobs paying in excess to
$10/hour.
Council is requested to approve the development agreement contingent upon review
and approval of the City Attorney.
COUNCIL ACTION
All motions are contingent upon City Attorney review and approval:
1) Approval of development agreement with American AgCo
2) Approval of development agreement with Twin City Poultry
3) Approval of development agreement with First Industrial Realty Trust
4) Approval of development agreement with EBL&S and assigns for the Grove
Plaza Project •
5) Approval with the Development team and entity and assigns for development of
the 80th Street Redevelopment project.
\\CG_FS2\CG_FS2_MAIN\USERS\RSCHROED\JuIy 26 2001 development agreements.doc
•
•Page 6
• EDA Special Meeting
July 31, 2001
List of Exhibits
Exhibit A: American AGCO Site Plan
Exhibit B: American AGCO Company Overview
Exhibit C: Twin City Poultry Site Area
Exhibit D: 1st Industrial Site Plan
Exhibit E: Development Agreement: American AGCO
Exhibit F: Development Agreement— Grove Plaza
Exhibit G: Development Agreement—80th Street
F:\Groups\PER_ECOMEconomic Development\EDA Packets\2001\Miscellaneous\July 31 Exhibit List.doc
•
•
EXHIBIT A
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EXHIBIT B
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mei'iean Family
of Businesses
Welcome to the American Family of Businesses.
For 64 years and three generations of our family,the American Family of Businesses' mem-
bers have been serving the livestock and companion animal industry. During this time we
have seen many changes in products, transportation methods,technology, the marketplace and
in our customers' needs. In recent years, change has been rapid and constant. Because of this
rapid change,we are constantly reinventing ourself in order to better serve our customers.
Much of this reinvention involves our enlarged, more diverse group of products, services and •
technologies required by dealers who are serving a growing and more diversified customer
base.
Please keep in mind that change is an on-going process. Our product mix, prices and services
are adjusted to meet market requirements and our customers' needs. Please contact your sales
representative for current pricing and product availability.
Thank you for choosing an American Family of Businesses partner as your supplier. We look
forward to helping you grow and prosper in your business endeavors.
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Gary A. Duclos Tony Duclos, Jr. Jon A. Duclos
AFB President AFB Vice President General Manager
American Distribution&Manufacturing corp.
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Welcome to American Family of Businesses
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service for buying and selling
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American Distribution & Manufacturing Corp.
• One-Stop Shopping - ., ... ----- Scheduled Delivery
Most businesses are running meaner and leaner. Our customers Because of our diverse product mix,we offer our customers the
have stated they are interested in any benefits we can provide ability to earn volume discounts and receive scheduled weekly
that will save them time. delivery as well.This enables the dealer to maximize inventory
turns and still obtain a competitive price.
Many dealers have told us they would like to reduce the number
of vendors with whom they work in order to better manage their
time and improve efficiency.American Distribution has devel- - a.�- .
Wilt�Izate�,�,--.,...�-�,�_nr .... __, _ .
aped a large,diverse product mix to help our dealers diversify
and give them opportunities to reduce vendors as they see fit. When surveying our customers'needs,our dealers insist on a
Fewer high fill rate.American Distribution consistently maintains a
vendors means fewer orders,sales personnel visits,deliveries, 95%fill rate or better.
checks to cut and less overall time spent in the purchasing effort.
- .._----___.-.�.:� _---.y. _e.-.
Unloading-Efficiencies '-- -w-m - --�-----
Volume Pricing"
Many of our trucks carry portable forklifts which enable our
Efficiency is the key to successful distribution. Because of our drivers to unload without any dealer assistance.Many trailers
large,diverse product mix,American Distribution is capable of have ramps,hydraulic lifts and carriage racks for efficient
delivering larger orders to our customers than our competitors delivery of product. •
and still maintain good inventory turns for the dealer.The larger
the order,the more efficient it is to deliver.
UPS Service _.-, ., -----
Since large orders are more efficient,American Distribution
• offers volume discounts based on the dollar amount of an order. American Distribution offers 24 hour UPS service.All orders
The larger the order placed of combined products,from our are shipped within 24 hours of receiving the order.
20,000 SKU inventory,the lower the price paid for each item on
the order.
Fax Service-- ---� - --------- ----- -
i „Al Fax orders are received 24 hours a day at(651)451-0708.
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-Financing =- ,- Merchandising Assistance -='
American Distribution offers Farm Plan financing. This plan Many dealers need merchandising assistance as they take steps
offers many financing benefits not available through conven- to compete with large format competition.American
tional credit channels.Please call our accounting department for Distribution has a staff of merchandising specialists available to
more information. This program is available to farm stores, help dealers update and refresh the merchandising in their
lawn&garden and pet retailers. stores. •
Technology --- - - --� -- ' Telemarketing/Customer Service=,
American Distribution is EDI and VMI operational. Contact Many of our dealers desire the service of an outside representa-
your sales representative if you are interested in using these tive and a specific customer service representative to handle all
labor-saving technologies. orders placed.A specific customer service person will be
assigned if desired by a dealer.
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Companion Animal & Wildlife Product Vendors
3M HARPER LEATHER COMPANY PESTELL
ALLIANCE PET PRODUCTS HARVEST VENTURES PET CENTER
ALLIED PRECISION HBH ENTERPRISES PET-AG
AMERICAN COLLOID CO. HELMAC PETS'N PEOPLE
ANCHOR HOCKING HERITAGE FARMS PRET IV BIRD INTERNATIONAL
ANDIS HIKARI PREVUE PET PRODUCTS
AQUARIUM PHARMACEUTICALS HORSE HEALTH PRO PAC&SPORTMIX
AQUARIUM SYSTEMS HY RATION PET FOOD PYTHON
AQUATRONICS INPLAY RALSTON PURINA
ASPECTS J &Y PET PRODUCTS RED SEA FISH PHARM
ASPEN/BOODA JOHNSON PET-DOR REMANOID
AVIAN AQUATICS JUNGLE LABORATORIES ROYAL CANIN USA
BIL-JAC/MARSHALL K& H EXCEL
BIRD BRAIN INC K. E. RUSH KASCO
BIRD VU KENT MARINE NATURAL BLEND
BLUE RIBBON K-FEEDER ROYAL CANIN
BRAMTON L/M ANIMAL FARMS SENSIBLE CHOICE
C&S LAKE PRODUCTS WAYNE'S
CATS CLAWS LAMBERT KAY RUBBERMAID
COASTAL PET PRODUCTS LAZY PET SANCO CHEMICALS
COOPER'S BEST MARDEL SCRYPTON
COSMOS MARINELAND SELECT
COUNTRY PRIME MIDWEST HOMES FOR PETS SISTER JOAN'S
CREATIVE NATIVE DESIGNS MILLER MANUFACTURING SMOKEHOUSE
CREATIVE PET PRODUCTS MINNESTOTA BOOKSTORE SPIRIT OF THE WOODS
CROWD PLEASER MOUNTAIN MEADOWS SUN SEED
D.C. AMERICA MUCK BOOT COMPANY T.F.H. PUBLICATIONS
DIAMOND PET FOODS MULTIPET INTERNATIONAL T.F.H./NYLABONE
DOSKOCIL MUSTANG TETRA
DROLL YANKEE NATURAL BALANCE THE KONG COMPANY
DUCKY WORLD PRODUCTS NATURAL SELECTIONS TIME WARNER
DUNCRAFT NATURE'S GOLD TRIPLE CROWN NUTRITION
EAGLE PET FOODS NATURES RECIPE TUFFY'S
ENERGY SAVERS UNLIMITED NATURE'S SEASON VARI CRAFT
ETHICAL PET PRODUCTS NELSON MFG WARDLEY
FARM INNOVATORS NEWLEAF DESIGNS WARE MANUFACTURING
FARNAM NORTH SHORE WILDLIFE WELLS PET FOOD
FARNAM PET PRODUCTS NORTH STATES INDUSTRIES INC. WHISKY BARREL
FAT CAT NOVALEK/KORDON PLANTERS CO., INC
FELLER STONE NOVALEK/OASIS WILDLIFE SCIENCES
FLEXI USA 0.S.I. WILDWOOD FARMS
FOUR PAWS OCEANIC SYSTEMS WILMAR
FRANCODEX OLD MOTHER HUBBARD WINGED AQUATICS
GOLDEN CAT OPUS WOODLINK
GRANNICK'S OURPETS (VIRTU) WOODY'S
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HALLMARK PERFECTO ZOO MED
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• EXHIBIT E
Note: Essentially, the same development agreement will be used for both
American AGCO and Twin City Poultry.
Draft
7.26.01
CONTRACT
FOR
PRIVATE DEVELOPMENT
By and Between
• COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY
and
SOUTH ST. PAUL AGRI-PROPERTIES
This document drafted by:
KENNEDY& GRAVEN, CHARTERED
470 Pillsbury Center
Minneapolis,MN 55402
(612) 337-9300
•
RHB-200764v2
CT165-19
TABLE OF CONTENTS
PAGE •
PREAMBLE 1
ARTICLE I
Definitions
Section 1.1. Definitions 1
Section 1.2. Exhibits 3
Section 1.3. Rules of Interpretation 4
ARTICLE II
Representations and Warranties
Section 2.1. Representations by the Authority 4
Section 2.2. Representations and Warranties by the Developer 4
ARTICLE III
Acquisition and Conveyance of Development Property;Public Improvements
Section 3.1. Acquisition and Conveyance of the Development Property 5
Section 3.2. Condition of Title 6 411Section 3.3. Financing 6
Section 3.4. Testing 7
Section 3.5. Conditions Precedent to Conveyance 7
Section 3.6. Closing; Delivery and Recording 7
Section 3.7. Conveyance by Meets and Bounds 8
ARTICLE IV
Construction of Minimum Improvements;Public Improvements
Section 4.1. Construction of Minimum Improvements 8
Section 4.2. Preliminary and Construction Plans 8
Section 4.3. Commencement and Completion of Construction 9
Section 4.4. Certificate of Completion and Release of Forfeiture 9
Section 4.5. Reconstruction of Improvements 9
Section 4.6. Public Improvements 10
Section 4.7. Grading Development Property 10
ARTICLE V
Business Subsidy Act Requirements
Section 5.1. Compliance with Business Subsidy Provisions 10
Section 5.2. Job and Wage Goals 11
Section 5.3. Remedies 11
RHB-200764v2 i
CT165-19
• Section 5.4. Reports 12
ARTICLE VI
Insurance
Section 6.1. Required Insurance 12
Section 6.2 Evidence of Insurance 13
ARTICLE VII
Collection of Taxes:Assessment Agreement;
Reimbursement of Increment
Section 7.1. Taxes 14
Section 7.2. Assessment Agreement 14
Section 7.3 Right to Collect Delinquent Taxes 14
Section 7.4 Use of Tax Increments 15
Section 7.5. Reimbursement of Tax Increment 15
ARTICLE VIII
Prohibition Against Sale; Encumbrances
Section 8.1 Prohibition Against Sale of Minimum Improvements 15
Section 8.2 Limitation Upon Encumbrance of Development Property 16
1111
ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined 16
Section 9.2. Remedies on Default 17
Section 9.3. Revesting Interest in the Authority Upon Happening of Event of Default
Subsequent to Conveyance to Developer 17
Section 9.4. No Remedy Exclusive 18
Section 9.5. No Additional Waiver Implied by One Waiver 19
ARTICLE X
Additional Provisions
Section 10.1. Conflict of Interests;Representatives Not Individually Liable 19
Section 10.2. Equal Employment Opportunity 19
Section 10.3. Restrictions on Use 19
Section 10.4. Provisions Not Merged With Deed 19
Section 10.5. Notices and Demands 19
Section 10.6. Counterparts 20
Section 10.7. Disclaimer of Relationships 20
RHB-200764v2 ii
CT165-19
TESTIMONIUM 22
SIGNATURES 22 •
EXHIBIT A LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
EXHIBIT B FORM OF QUIT CLAIM DEED
EXHIBIT C LIST OF PRELIMINARY PLAN DOCUMENTS
EXHIBIT D FORM OF CERTIFICATE OF COMPLETION AND RELEASE OF
FORFEITURE
EXHIBIT E FORM OF ASSESSMENT AGREEMENT
•
•
RHB-200764v2 iii
CT165-19
• CONTRACT FOR PRIVATE DEVELOPMENT
THIS AGREEMENT, made this day of July, 2001, by and between the Cottage
Grove Economic Development Authority, a public body corporate and politic under the laws of
Minnesota, having its principal office at 7516 80th Street South, Cottage Grove, Minnesota 55016-
3195 (the "Authority") and South St. Paul Agri-Properties, a Minnesota partnership,
having its principal office at (the"Developer").
WITNESSETH:
WHEREAS, the Authority created Development District No. 1 (the "Development
District") and adopted a program (the "Program") for it, all in conformance with Minnesota
Statutes, Sections 469.124 through 469.134, the Authority Development Districts Act (the "Act");
and
WHEREAS, the Authority has established tax increment financing district No. 1-10 ("TIF
District No. 1-10")and has adopted a tax increment financing(the"TIF Plan")related thereto; and
WHEREAS, in order to achieve the objectives of the Program and the TIF Plan, the
Authority is prepared to write down the cost of the Development Property, as hereinafter defined,
and to otherwise assist the Developer in order to bring about development of the Development
• Property in accordance with the Program,the TIF Plan and this Agreement; and
WHEREAS, the Authority believes that the development of land within TIF District No. 1-
10 pursuant to this Agreement and the fulfillment generally of this Agreement are in the vital and
best interests of Cottage Grove and the health, safety, morals, and welfare of its residents, and in
accord with the public purposes and provisions of the applicable state and local laws and
requirements under which the Development District has been undertaken.
NOW, THEREFORE, in consideration of the covenants and the mutual obligations
contained herein, the Authority and the Developer hereby covenant and agree with the other as
follows:
ARTICLE I
Definitions
Section 1.1. Definitions. In this Agreement the following terms shall have the meanings
given unless a different meaning clearly appears from the context:
"Act"means the Authority Development Districts Act, Minnesota Statutes, sections 469.124
through 469.134, as amended.
•
R1-IB-200764v2 1
CT165-19
"Agreement" means this Agreement, as the same may be from time to time modified, •
amended,or supplemented.
"Assessment Agreement"means the agreement, in the form contained in Exhibit E attached
hereto, among the Developer, the Authority and the Assessor and entered into pursuant to Article
VII of this Agreement, which establishes a Minimum Market Value for the Development Property
and the Minimum Improvements.
"Assessor"means the assessor for Washington County,Minnesota.
"Authority"means the Cottage Grove Economic Development Authority.
"Business Subsidy Act"means Minnesota Statutes, sections 116J.993 through 116J.995 (the
"Business Subsidy Act").
"Certificate of Completion and Release of Forfeiture" means the certificate, in the form
contained in Exhibit D attached hereto,which will be provided to the Developer pursuant to Article
IV of this Agreement.
"City" means the city of Cottage Grove, a municipal corporation under the laws of
Minnesota.
"Construction Plans"means the final plans for construction of the Minimum Improvements
to be submitted by the Developer and approved by the Authority. •
"County"means Washington County,Minnesota.
"Developer"means South St.Paul Agri-Properties, a Minnesota partnership.
"Development Property" means the real property upon which the Minimum Improvements
will be constructed,which property is legally described in Exhibit A attached hereto.
"Development Property Deed" means the quit claim deed in the form attached hereto as
Exhibit B,by which the Authority will convey the Development Property to the Developer.
"EDA Act"or"Economic Development Authority Act"means Minnesota Statutes, sections
469.090 through 469.1081, as amended.
"Event of Default"means an action by the Developer or the Authority listed in Article IX of
this Agreement.
"Minimum Improvements" means a warehouse facility containing approximately 81,000
square feet constructed in accordance with the Construction Plans submitted to and approved by the
Authority. After completion of the Minimum Improvements,the term shall mean the Development
Property as improved by the Minimum Improvements.
�1 S
RHB-200764v2 2
CT165-19
• "Minimum Market Value" means a market value for real estate tax purposes of at least
$2,900,000 with respect to the Development Property and Minimum Improvements as of January 2,
2002 for taxes payable beginning in 2003 through the Termination Date.
"Preliminary Plans" means, collectively, the plans, drawings and specifications for the
construction of the Minimum Improvements which are listed on Exhibit C attached hereto.
"Sale" means any sale, conveyance, lease, exchange, forfeiture other transfer of the
Developer's interest in the Minimum Improvements or the Development Property, whether
voluntary or involuntary.
"State"means the state of Minnesota.
"Tax Increment Financing Act" or "TIF Act" means Minnesota Statutes, sections 469.174
through 469.179, as amended.
"Tax Increment Financing District"or"TIF District"means the Authority's TIF District No. •
1-10.
"Tax Increment Financing Plan" or "TIF Plan" means the tax increment plan for TIF
District No. 1-10.
"Tax Official" means the Assessor, County auditor, County or State board of equalization,
the commissioner of revenue of the State, or any State or federal district court, the tax court of the
State,or the State supreme court.
"Termination Date"means the date the TIF District terminates, which is expected to be nine
years after receipt of the first increment or 11 years after the date of approval of the TIF Plan,
whichever occurs first.
"Unavoidable Delays" means delays which are the direct result of unanticipated adverse
weather conditions; strikes or other labor troubles; fire or other casualty to the Minimum
Improvements; litigation commenced by third parties which, by injunction or other similar judicial
action, directly results in delays; or, except those of the Authority reasonably contemplated by this
Agreement, any acts or omissions of any federal, State or local governmental unit which directly
result in delays in construction of the Minimum Improvements.
Section 1.2. Exhibits. The following exhibits are attached to and by reference made a part
of this Agreement:
Exhibit A. Legal description of the Development Property
Exhibit B. Form of Quit Claim Deed
Exhibit C. List of Preliminary Plan Documents
Exhibit D. Form of Certificate of Completion and Release of Forfeiture
Exhibit E. Form of Assessment Agreement
•
RHB-200764v2 3
CT165-19
Section 1.3. Rules of Interpretation. (a) This Agreement shall be interpreted in accordance •
with and governed by the laws of Minnesota.
(b) The words "herein" and "hereof' and words of similar import, without reference to
any particular section or subdivision, refer to this Agreement as a whole rather than any particular
section or subdivision hereof
(c) References herein to any particular section or subdivision hereof are to the section or
subdivision of this Agreement as originally executed.
(d) Any titles of the several parts, articles and sections of this Agreement are inserted for
convenience and reference only and shall be disregarded in construing or interpreting any of its
provisions.
ARTICLE II
Representations and Warranties
Section 2.1. Representations by the Authority. The Authority makes the following
representations as the basis for the undertakings on its part herein contained:
(a) The Authority is a public body corporate and politic under the laws of Minnesota. •
The Authority has the power to enter into this Agreement and carry out its obligations hereunder.
(b) The persons executing this Agreement and related agreements and documents on
behalf of the Authority have the authority to do so and to bind the Authority by their actions.
(c) Development District No. 1 is a development district within the meaning of the Act
and was created, adopted and approved in accordance with the terms of the Act.
(d) TIF District No. 1-10 is an economic development tax increment financing district
within the meaning of the TIF Act.
(e) The Authority has received no notice or communication from any local, State or
federal official that the activities of the Developer or the Authority in the Development District may
be or will be in violation of any environmental law or regulation. The Authority is aware of no facts
the existence of which would cause it to be in violation of any local, State or federal environmental
law,regulation or review procedure.
Section 2.2. Representations and Warranties by the Developer. The Developer makes the
following representations as the basis for the undertakings on its part herein contained:
(a) The Developer is a Minnesota partnership, duly organized and in
good standing under the laws of Minnesota and is not in violation of any provisions of its .
R1-1B-200764v2 4
CT165-19
• organizational documents. The Developer has the power to enter into this Agreement and carry out
its obligations hereunder. The persons executing this Agreement and related agreements and
documents on behalf of the Developer have the authority to do so and to bind the Developer by their
actions.
(b) In the event the Development Property is conveyed to the Developer, the Developer
will construct, operate and maintain the Minimum Improvements on the Development Property in
substantial accordance with the terms of this Agreement, the Program, the TIF Plan, the
Construction Plans and all local, State and federal laws and regulations, including, but not limited
to, environmental,zoning,building code and public health laws and regulations.
(c) The Developer will apply for and use its best efforts to obtain, in a timely manner,
all required permits, licenses and approvals, and will meet, in a timely manner, the requirements of
all applicable local, State and federal laws and regulations which must be obtained or met before the
Minimum Improvements may be lawfully constructed or used for their intended purpose.
(d) Neither the execution and delivery of this Agreement, the consummation of the •
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of, the
terms, conditions or provisions or any restriction or any evidence of indebtedness, agreement or
instrument of whatever nature to which the Developer is now a party or by which it is bound, or
constitutes a default under any of the foregoing.
• (e) The Developer would not be willing to construct the Minimum Improvements but
for the commitment by the Authority to grant the financial assistance outlined in this Agreement and
the use of tax increment for such assistance is essential to the Developer's ability to carry out its
obligations under this Agreement.
ARTICLE III
Acquisition and Conveyance of Development Property; Public Improvements
Section 3.1. Acquisition and Conveyance of the Development Property. In order to
facilitate the financial feasibility of the development of the Development Property and in
consideration of the Developer's fulfillment of its covenants and obligations under this Agreement
to construct the Minimum Improvements, and subject to the conditions precedent to closing outlined
in Section 3.5 of this Agreement, the Authority agrees to sell the Development Property to the
Developer for $91,000. The Development Property is legally described in Exhibit A attached
hereto. The Authority agrees to convey title and possession of the Development Property to the
Developer under a quit claim deed in the form attached hereto as Exhibit B. The Authority shall
arrange for the payment of all levied or pending special assessments prior to closing. The
Developer and the Authority agree to pro rate as of the date of closing any real property taxes for
the Development Property payable in the year of closing. The Developer agrees to pay all real
estate taxes payable with regard to the Development Property in the years after closing. The
• conveyance of the Development Property and the Developer's use of the Development Property
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shall be subject to all of the conditions, covenants, restrictions and limitations imposed by this •
Agreement, the Assessment Agreement and the Development Property Deed. The conveyance of
title to the Development Property and the Developer's use of the Development Property shall also be
subject to the building and zoning laws and ordinances and all other City, State and federal laws and
regulation.
Section 3.2. Condition of Title. Within thirty (30) days of the date of this Agreement, the
Authority agrees to submit to the Developer a commitment for title insurance regarding the
Development Property. The Developer shall have twenty (20) days after delivery of the
commitment to examine same and to make any objections concerning the condition of title
regarding the Development Property. Objections to the condition of title shall be made in writing
and addressed to the Authority. Failure on the part of the Developer to make objections within
twenty (20) days shall constitute a waiver of same and of the Developer's right to object to the
condition of title. If the Developer provides written objections to title, the Authority shall have
forty-five (45) days thereafter to cure the defects cited by the Developer or to inform the Developer
in writing that the Authority cannot or will not cure said defects. If there are no defects in title to
which the Developer objects in writing or the Developer fails to object in a timely manner or if the
Authority cures the defects within the prescribed period, the parties will proceed to closing. If there
are defects in title to which the Developer has objected in a timely manner and which the Authority
cannot or will not cure, the Developer may terminate this Agreement at its option within ten (10)
days of notice from the Authority of its inability or unwillingness to cure. The Authority shall have
no obligation to cure any defects in the title of the Development Property. If the Developer chooses
to terminate this Agreement pursuant to this Section 3.4, the Developer agrees to execute a quit •
claim deed regarding the Development Property in favor of the Authority. Thereafter the parties
shall have no further obligation towards one another with regard to this Agreement or the
Development Property. The Developer may also choose to proceed to closing on the Development
Property and take title subject to the defect. Notwithstanding any other provision herein to the
contrary, if the Developer proceeds to closing within less than the time periods set forth herein for
receipt of a commitment for title insurance and objection to title defects, such action shall be
deemed to be a waiver by the Developer of its right to examine and object to the condition of title of
the Development Property.
Section. 3.3. Financing. Before conveyance of the Development Property by the Authority,
the Developer agrees to submit to the Authority evidence of a commitment for financing which is
adequate,in the Authority's sole opinion, for the construction of the Minimum Improvements. If the
Authority finds that the financing complies with the terms of this Section 3.3 and is sufficiently
committed and adequate in amount to provide for the construction of the Minimum Improvements,
the Authority shall notify the Developer in writing of its approval. Such approval shall not be
unreasonably withheld. If the Authority rejects the evidence of financing as inadequate, it shall do
so in writing specifying the basis for the rejection and the Developer shall have 30 days thereafter to
submit a commitment for additional or alternate financing acceptable to the Authority. If the
Developer fails to submit a commitment for financing acceptable to the Authority within said period
of time or any additional period to which the Authority may agree, the Authority may notify the
Developer of its failure to comply with the requirement of this Section 3.3 and may terminate this
Agreement at its sole discretion.
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• Section 3.4. Testing. After execution of this Agreement and within thirty (30) days
thereafter, the Developer may notify the Authority of its desire to undertake tests and inspections of
the Development Property regarding the presence of pollution, contamination or hazardous
substances on the Development Property and the suitability of the soils for the Developer's intended
purposes. The Authority agrees to seek permission from the fee owners to allow the Developer to
enter the Development Property for such tests and inspections. In the event that the Developer,
following such tests and inspections, determines in its sole judgment that the condition of the
Development Property is unsuitable for construction of the Minimum Improvements, the Developer
may terminate this Agreement and return the Development Property to its condition prior to
undertaking such tests and inspections. Regardless of whether the Developer avails itself of the
right to conduct tests and inspections on the Development Property pursuant to this Section 3.4,
after closing the Authority shall have no obligation or liability to the Developer for any unsuitability
with respect to the soil conditions or the presence of any pollution, contamination or hazardous
substances on the Development Property. Notwithstanding any other provision herein to the
contrary, if the Developer proceeds to closing within less than the period of time allowed in this
Section 3.4 for testing, such action shall be deemed to be a waiver by the Developer of its right to
test on the Development Property.
Section 3.5. Conditions Precedent to Conveyance. Notwithstanding anything herein to the
contrary, the Authority shall not be obligated to convey the Development Property to the Developer
until the following conditions precedent have been satisfied:
• (1) The Developer has submitted a commitment or other evidence of financing
which is adequate, in the Authority's sole discretion, to fully finance
construction of the Minimum Improvements;
(2) The Developer has submitted and the Authority has approved the
Preliminary Plans;
(3) The Developer has executed the Assessment Agreement in the form attached
hereto as Exhibit E; and
(4) There has been no Event of Default on the part of the Developer which has
not been cured.
Section 3.6. Closing; Delivery and Recording. Subject to the substantial satisfaction of all
of the terms and conditions contained in this Agreement which must be satisfied prior to the
Authority's conveyance of the Development Property to the Developer, the Authority shall execute
and deliver the Development Property Deed to the Developer at closing. Closing shall occur on
August 30, 2001, or as soon thereafter as reasonably practicable. If closing has not occurred by
September 15,2001, either party may terminate this Agreement by notice to the other in accordance
with Section 9.4 of this Agreement. The Developer shall have possession of the Development
Property upon closing. Closing shall be at the offices of the Authority or such other location to
which the parties may agree. Prior to closing, the Authority shall submit to the Developer a copy of
• the Development Property Deed and other closing documents for review. The Development
Property Deed shall be in recordable form and shall be recorded among the County land records.
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The Developer shall be responsible for the cost of recording the Development Property Deed, this •
Agreement and the Assessment Agreement. The Developer shall pay at closing all fees associated
with obtaining the commitment for title insurance for the Development Property and for the policy
of title insurance. The Developer and the Authority shall each pay at closing one-half of the closer's
fee.
Section 3.7. Conveyance by Meets and Bounds. In order to accommodate the Developer's
construction schedule, the Authority and the Developer have agreed to convey the Development
Property by means of a meets and bounds legal description. The Authority intends to apply to the
City to plat the Development Property. The Developer agrees to cooperate with the Authority and
the City in the platting of the Development Property.
ARTICLE IV
Construction of Minimum Improvements; Public Improvements
Section 4.1. Construction of Minimum Improvements. The Developer agrees that it will
construct the Minimum Improvements on the Development Property in accordance with the
Construction Plans and at all times prior to the Termination Date will maintain, preserve and keep
the Minimum Improvements or cause the Minimum Improvements to be maintained,preserved and
kept in good repair and condition. The Developer recognizes that it is because the Developer has
agreed to construct the Minimum Improvements that the Authority is willing to offer the assistance •
outlined in this Agreement. The Developer acknowledges that, in addition to the requirements of
this Agreement, construction of the Minimum Improvements will necessitate compliance with other
reviews and approvals by the Authority and possibly other governmental agencies and agrees to
submit all applications for and pursue to their conclusion all other approvals needed prior to
constructing the Minimum Improvements.
Section 4.2. Preliminary and Construction Plans. (a) Within thirty(30)days after execution
of this Agreement, the Developer shall submit dated Construction Plans to the Authority. The
Construction Plans shall provide for the construction of the Minimum Improvements and shall be in
substantial conformity with the Preliminary Plans and this Agreement. The Authority will approve
the Construction Plans if they (1) conform to the Preliminary Plans listed in Exhibit C attached
hereto; (2) conform to all applicable federal, State and local laws, ordinances,rules and regulations;
(3) are adequate to provide for the construction of the Minimum Improvements; (4) conform to the
State building code; and (5) if there has occurred no uncured Event of Default on the part of the
Developer. No approval by the Authority shall relieve the Developer of the obligation to comply
with the terms of this Agreement, the terms of any applicable federal, State and local laws,
ordinances, rules and regulations in the construction of the Minimum Improvements. No approval
by the Authority shall constitute a waiver of an Event of Default.
(b) If the Developer desires to make any change in the Construction Plans after their
approval by the Authority, including any change to the design or materials of the Minimum
Improvements or any other change which would also require review or reapproval under any
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• applicable code, ordinance or regulation, the Developer shall submit the proposed change to the
Authority for its approval. If the proposed change conforms to the requirements of this section 4.2
with respect to the original Construction Plans or is otherwise acceptable to the Authority, the
Authority shall approve the proposed change. Such change in the Construction Plans shall be
deemed approved by the Authority unless rejected, in whole or in part, by written notice by the
Authority to the Developer, setting forth in detail the reasons therefor. Such rejection shall be made
within ten(10)days after receipt of the written notice of such change from the Developer.
Section 4.3. Commencement and Completion of Construction. Subject to Unavoidable
Delays, the Developer shall commence construction of the Minimum Improvements no later than
September 4, 2001. Subject to Unavoidable Delays, the Developer shall have substantially
completed the construction of the Minimum Improvements no later than December 31, 2001. All
work with respect to the Minimum Improvements to be constructed or provided by the Developer
on the Development Property shall be in conformity with the Construction Plans. The Developer
shall make such reports to the Authority regarding construction of the Minimum Improvements as
the Authority deems necessary or helpful in order to monitor progress on construction of the
Minimum Improvements.
Section 4.4. Certificate of Completion and Release of Forfeiture. (a) After substantial
completion of the Minimum Improvements in accordance with the Construction Plans and all terms
of this Agreement, the Authority will furnish the Developer with a Certificate of Completion and
Release of Forfeiture in the form of Exhibit D hereto. Such certification by the Authority shall be a
conclusive determination of satisfaction and termination of the agreements and covenants in this
Agreement and in the Development Property Deed with respect to the obligations of the Developer
to construct the Minimum Improvements and the dates for the beginning and completion thereof.
The Certificate of Completion and Release of Forfeiture shall only be issued after issuance of a
certificate of occupancy by the City.
(b) The Certificate of Completion and Release of Forfeiture provided for in this section
4.4 shall be in such form as will enable it to be recorded in the proper County office for the
recordation of deeds and other instruments pertaining to the Development Property. If the Authority
shall refuse or fail to provide such certification in accordance with the provisions of this section 4.4,
the Authority shall, within thirty (30) days after written request by the Developer, provide the
Developer with a written statement, indicating in adequate detail in what respects the Developer has
failed to complete the Minimum Improvements in accordance with the provisions of the Agreement,
or is otherwise in default of a material term of this Agreement, and what measures or acts will be
necessary, in the opinion of the Authority, for the Developer to take or perform in order to obtain
such certification.
Section 4.5. Reconstruction of Improvements. If the Minimum Improvements are damaged
or destroyed before or after completion thereof and issuance of a Certificate of Completion and
Release of Forfeiture, but before the Termination Date, the Developer agrees, for itself and its
successors and assigns, to reconstruct the Minimum Improvements to a value at least equal to the
Minimum Market Value within one year of the date of the damage or destruction. Failure by the
Developer or any successor or assign to reconstruct the Minimum Improvements as required by this
• Section 4.5 shall not alter or limit the Developer's obligations under the Assessment Agreement.
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The Minimum Improvements shall be reconstructed in accordance with the approved Construction 111
Plans, or such modifications thereto as may be requested by. the Developer and approved by the
Authority in accordance with Section 4.2 of this Agreement. The Developer's obligation to
reconstruct the Minimum Improvements pursuant to this Section 4.5 shall end on the Termination
Date.
Section 4.6. Public Improvements. The Authority agrees to construct street and utility
improvements to serve the Development Property. The public improvements will include extending
97 Street westerly from its current termination point and installing sanitary sewer and water. The
public improvements will be completed by and will be installed at no direct
expense to the Developer.
Section 4.7. Grading Development Property. After closing, the Developer agrees to grade
the Development Property in preparation of constructing the Minimum Improvements. The
Authority agrees to reimburse the Developer$.30 per square foot for the grading.
ARTICLE V
Business Subsidy Act Requirements
Section 5.1. Compliance with Business Subsidy Provisions. The parties agree and represent 1111
to each other as follows:
(a) The subsidy provided to the Developer is the conveyance of the Development Property
to the Developer for$91,000 for land which has a fair market value of$ ,representing a
subsidy of$
(b) The public purposes of the subsidy are to promote development of a warehouse facility
in the Authority, generate spin-off development at a key location in the Authority, increase net jobs
in the Authority and the State, and increase the tax base of the Authority and the State.
(c) The goals for the subsidy are to secure construction of the Minimum Improvements on
the Development Property; to maintain the Minimum Improvements as a warehouse facility for at
least five years as described in clause (f) below; and to create the jobs and wage levels in
accordance with this section 5.1.
(d) If the goals described in clause (c) above are not met, the Developer must make the
payments to the Authority described in section 5.3.
(e) The subsidy is needed because the cost of the Development Property at fair market
value makes development of a warehouse facility financially infeasible without public assistance, all
as determined by the Authority upon approval of the TIF Plan.
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(f) The Developer must continue operation of the Minimum Improvements as a warehouse
facility for at least five years after the date of issuance of the Certificate of Completion and Release
of Forfeiture.
(g) The Developer does not have a parent corporation.
(h) The Developer has not received, and does not expect to receive financial assistance from
any other grantor as defined in the Business Subsidy Act in connection with purchase of the
Development Property or construction of the Minimum Improvements.
Section 5.2. Job and Wage Goals. Within two years after the date of issuance of the
Certificate of Completion and Release of Forfeiture (the "Compliance Date"), the Developer shall
cause to be created at least three new full-time equivalent jobs on the Development Property
(excluding any jobs previously existing in the State as of the date of this Agreement and relocated to
this site) and shall cause the wages for the three employees to be no less than $11.00 per hour,
exclusive of benefits. Notwithstanding anything to the contrary herein, if the wage and job goals
described in this section 5.2 are met by the Compliance Date, those goals are deemed satisfied
despite the Developer's continuing obligations under Sections 5.1(f) and 5.4. The Authority may,
after a public hearing, extend the Compliance Date by up to one year, provided that nothing in this
Section 5.2 will be construed to limit the Authority's legislative discretion regarding this matter.
Section 5.3. Remedies. If the Developer fails to meet the goals described in Section 5.1(c),
• the Developer shall repay to the Authority upon written demand from the Authority a pro rata share
of the amount of$ , representing the amount of the subsidy granted to the Developer
(unless the Authority exercises its right of reverter as to the Development Parcel under Section 8.3
hereof); and interest on said amount at the implicit price deflator as defined in Minnesota Statutes,
Section 275.50, subd. 2, accrued from the date of issuance of the Certificate of Completion and
Release of Forfeiture to the date of payment. The term pro rata share means percentages calculated
as follows:
(i) if the failure relates to the number of jobs,the jobs required less the jobs created,
divided by the jobs required;
(ii) if the failure relates to wages, the number of jobs required less the number of
jobs that meet the required wages,divided by the number of jobs required;
(iii) if the failure relates to maintenance of the warehouse facility in accordance with
Section 5.1(f), 60 less the number of months of operation as a warehouse facility(where any
month in which the warehouse facility is in operation for at least 15 days constitutes a month
of operation), commencing on the date of the Certificate of Completion and Release of
Forfeiture and ending with the date the warehouse facility ceases operation as determined by
the Authority,divided by 60; and
(iv) if more than one of clauses (i) through (iii) apply, the sum of the applicable
percentages,not to exceed 100%.
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Nothing in this Section 5.3 shall be construed to limit the Authority's remedies under Article
VIII hereof. In addition to the remedy described in this Section 5.3 and any other remedy available •
to the Authority for failure to meet the goals stated in Section 5.1(c), the Developer agrees and
understands that it may not a receive a business subsidy from the Authority or any grantor as
defined in the Business Subsidy Act for a period of five years from the date of the failure or until the
Developer satisfies its repayment obligation under this Section,whichever occurs first.
Section 5.4. Reports. The Developer must submit to the Authority a written report
regarding business subsidy goals and results by no later than March 1 of each year, commencing
March 1, 2002 and continuing until the later of(i) the date the goals stated Section 5.1(c) are met;
(ii)30 days after expiration of the five-year period described in Section 5.1(f); or(iii) if the goals are
not met,the date the subsidy is repaid in accordance with Section 5.3. The report must comply with
Section 116J.994, subdivision 7 of the Business Subsidy Act. The Authority will provide
information to the Developer regarding the required forms. If the Developer fails to timely file any
report required under this Section 5.4, the Authority will mail the Developer a warning within one
week after the required filing date. If, after 14 days of the postmarked date of the warning, the
Developer fails to provide a report, the Developer must pay to the Authority a penalty of$100 for
each subsequent day until the report is filed. The maximum aggregate penalty payable under this
Section 5.4 is$1,000.
ARTICLE VI
Insurance •
Section 6.1. Required Insurance. (a) The Developer agrees to provide and maintain at all
times during the process of constructing the Minimum Improvements and, from time to time at the
request of the Authority, furnish the Authority with proof of payment of premiums on:
(i) Builder's risk insurance, written on the so-called `Builder's Risk --
Completed Value Basis," in an amount equal to one hundred percent (100%) of the
insurable value of the Minimum Improvements at the date of completion, and with coverage
available in nonreporting form on the so called"all risk"form of policy;
(ii) Comprehensive general liability insurance (including operations, contingent
liability, operations of subcontractors, completed operations and contractual liability
insurance)together with an Owner's Contractor's Policy with limits against bodily injury and
property damage of not less than $1,000,000 for each occurrence(to accomplish the above -
required limits, an umbrella excess liability policy may be used); and
(iii) Workers'compensation insurance,with statutory coverage.
The policies of insurance required pursuant to clauses (i) and(ii) above shall be in form and content
reasonably satisfactory to the Authority and shall be placed with financially sound and reputable
insurers licensed to transact business in Minnesota. The policy of insurance delivered pursuant to
clause (i) above shall contain an agreement of the insurer to give not less than thirty (30) days' •
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• advance written notice to the Authority in the event of cancellation of such policy or change
affecting the coverage thereunder.
(b) Upon completion of construction of the Minimum Improvements, and prior to the
Termination Date, the Developer shall maintain, or cause to be maintained, at its cost and expense,
and from time to time at the request of the Authority shall furnish proof of the payment of premiums
on, insurance as follows:
(i) Insurance against loss and/or damage to the Minimum Improvements under
a policy or policies covering such risks as are ordinarily insured against by similar
businesses, including (without limiting the generality of the foregoing) fire, extended
coverage, vandalism and malicious mischief, heating system explosion, water damage,
demolition cost, debris removal, collapse and flood, in an amount not less than the full
insurable replacement value of the Minimum Improvements or the Minimum Market Value,
whichever is greater. No policy of insurance shall be so written that the proceeds thereof
will produce less than the minimum coverage required by the preceding sentence, by reason
of coinsurance provisions or otherwise, without the prior consent thereto in writing by the
Authority. The term "full insurable replacement value" shall mean the actual replacement
cost of the Minimum Improvements and shall be determined from time to time at the request
of the Authority, but not more frequently than once every three years, by an insurance
consultant or insurer, selected and paid for by the Developer and approved by the Authority;
and
• (ii) Such other insurance, including worker's compensation insurance respecting
all employees of the Developer, in such amount as is customarily carried by like
organizations engaged in like activities of comparable size and liability exposure; provided
that the Developer may be self-insured with respect to all or any part of its liability for
worker's compensation.
Section 6.2. Evidence of Insurance. All insurance required in this Article VI shall be taken
out and maintained in responsible insurance companies selected by the Developer which are
authorized under the laws of Minnesota to assume the risks covered thereby. The Developer agrees
to deposit annually with the Authority copies of policies evidencing all such insurance, or a
certificate or certificates or binders of the respective insurers stating that such insurance is in force
and effect. Unless otherwise provided in this Article VI, each policy shall contain a provision that
the insurer shall not cancel nor materially modify it without giving written notice to the Developer
and the Authority at least thirty(30)days before the cancellation or modification becomes effective.
Not less than fifteen (15) days prior to the expiration of any policy, the Developer shall furnish the
Authority evidence satisfactory to the Authority that the policy has been renewed or replaced by
another policy conforming to the provisions of this Article VI, or that there is no necessity therefor
under the terms of this Agreement. In lieu of separate policies,the Developer may maintain a single
policy, blanket or umbrella policies, or a combination thereof, having the coverage required herein,
in which event the Developer shall deposit with the Authority a certificate or certificates of the
respective insurers as to the amount of coverage in force upon the Minimum Improvements.
S
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ARTICLE VII
111
Collection of Taxes; Assessment Agreement;
Reimbursement of Increment
Taxes. The Developer agrees that prior to the Termination Date it will not
Section7.1. p gr
cause a reduction in the real property taxes paid in respect to the Development Property or the
Minimum Improvements through willful destruction of the Minimum Improvements or any part
thereof or refusal to reconstruct the Minimum Improvements if damaged or destroyed. The
Developer also agrees that it will not, prior to the Termination Date, transfer, or permit the transfer
of,the Development Property or the Minimum Improvements to any entity whose ownership would
render the Development Property or the Minimum Improvements exempt from real property taxes
under State law, other than the Authority or the City, or apply for a deferral of property tax on the
Development Property or the Minimum Improvements pursuant to Minnesota Statutes, Section
469.181,or any similar law.
Section 7.2. Assessment Agreement. (a)Prior to conveyance of the Development Property,
the Developer and the Authority agree to execute an Assessment Agreement pursuant to Minnesota
Statutes, Section 469.177, subd. 8, specifying the Minimum Market Value for the Development
Property together with the Minimum Improvements. The amount of the Minimum Market Value
shall be no less than $2,900,000 as of January 2, 2002 for taxes payable beginning in 2003 through
the Termination Date, notwithstanding any failure to complete construction of the Minimum
Improvements by the date specified in Section 4.3 of this Agreement. •
(b) The Assessment Agreement shall be substantially in the form attached hereto as
Exhibit E. Nothing in the Assessment Agreement shall limit the discretion of the Assessor to assign
a market value to the Development Property and Minimum Improvements in excess of such
Assessor's Minimum Market Value nor prohibit the Developer from seeking through the exercise of
legal or administrative remedies a reduction in such market value for property tax purposes;
provided, however, that the Developer shall not seek a reduction of such market value below the
Assessor's Minimum Market Value set forth in the Assessment Agreement in any year so long as
such Assessment Agreement shall remain in effect. The Assessment Agreement shall remain in
effect until the Termination Date; provided that if at any time before the Termination Date the
Assessment Agreement is found to be terminated or unenforceable by any Tax Official or court of
competent jurisdiction, the Minimum Market Value described in this Section 7.2 shall remain an
obligation of the Developer or its successors and assigns (whether or not such value is binding on
the Assessor), it being the intent of the parties that the obligation of the Developer to maintain, and
not seek reduction of, the Minimum Market Value specified in this Section 7.2 is an obligation
under this Agreement as well as under the Assessment Agreement, and is enforceable by the
Authority against the Developer, its successors and assigns in accordance with the terms of this
Agreement.
Section 7.3. Right to Collect Delinquent Taxes. The Developer acknowledges that the
Authority is providing substantial aid and assistance to the Developer through sale of the
Development Property for less than market value. The Developer understands that the real estate •
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• taxes on the Development Property and the Minimum Improvements must be promptly and timely
paid. To that end, the Developer agrees for itself, its successors and assigns, in addition to the
obligation pursuant to statute to pay real estate taxes,that the Developer is also obligated at all times
prior to the Termination Date by reason of this Agreement to pay before delinquency all real estate
taxes assessed against the Development Property and the Minimum Improvements. The Developer
acknowledges that at all times prior to the Termination Date this obligation creates a contractual
right on behalf of the Authority to sue the Developer or its successors and assigns to collect
delinquent real estate taxes and any penalty or interest thereon and to pay over the same as a tax
payment to the County auditor. In any such suit, the Authority shall also be entitled to recover its
reasonable out-of-pocket costs, expenses and attorney fees.
Section 7.4. Use of Tax Increments. The Authority shall be free to use any tax increment
received from the Minimum Improvements for any purpose for which such increments may
lawfully be used under the TIF Plan and pursuant to the provisions of State law, and the Authority
shall have no obligations to the Developer with respect to the use of such increment.
Section 7.5. Reimbursement of Tax Increment. Minnesota Statute, section 469.176, subd.
4c limits the use of tax increment in an economic development district to projects occupied by
permitted uses. Minnesota Statutes, section 469.1771 requires the Authority to reimburse increment
distributed to it and used to assist a project which does not qualify for tax increment assistance. If
the Authority is required to reimburse increment to the County or any other governmental entity
pursuant to Minnesota Statutes, section 469.1771, or any other provision of the TIF Act, the
• Developer agrees to reimburse a similar amount to the Authority within thirty (30) days' written
notice to the Developer.
ARTICLE VIII
Prohibition Against Sale; Encumbrances
Section 8.1. Prohibition Against Sale of Minimum Improvements. The Developer
represents and agrees that its use of the Development Property and its other undertakings pursuant
to the Agreement, are, and will be, for the purpose of development of the Development Property
and not for speculation in land holding. The Developer further recognizes that in view of the
importance of the construction of the Minimum Improvements on the Development Property to the
general welfare of Cottage Grove and the substantial assistance that has been made available by the
Authority for the purpose of making such Development possible, the fact that any act or transaction
involving or resulting in a significant change in the identity of the Developer is of particular concern
to the Authority. The Developer further recognizes that it is because of such qualifications and
identity that the Authority is entering into the Agreement with the Developer, and, in so doing, is
further willing to accept and rely on the obligations of the Developer for the faithful performance of
all undertakings and covenants hereby by it to be performed. For the foregoing reasons, the
Developer represents and agrees that, prior to the issuance of the Certificate of Completion and
• Release of Forfeiture, there shall be no Sale of the Development Property or the Minimum
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Improvements by the Developer nor shall the Developer suffer any such Sale to be made, without •
the prior written approval of the Authority.
Section 8.2. Limitation Upon Encumbrance of Development Property. Prior to the issuance
of the Certificate of Completion and Release of Forfeiture, the Developer agrees not to engage in
any financing creating any mortgage or other encumbrance or lien upon the Development Property
or the Minimum Improvements, whether by express agreement or operation of law, or suffer any
encumbrance or lien to be made on or attached to the Development Property or the Minimum
Improvements, other than the liens or encumbrances directly and solely related to construction of
the Minimum Improvements and approved by the Authority, which approval shall not be withheld
or delayed unreasonably if the Authority determines that such lien or encumbrance will not threaten
its security in the Development Property or the Minimum Improvements.
ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined. Each and every one of the following shall be an
Event of Default under this Agreement:
(a) Failure by the Authority or the Developer to proceed to closing on the Development •
Property after compliance with or the occurrence of all conditions precedent to closing;
(b) Failure by the Developer to commence and complete construction of the Minimum
Improvements pursuant to the terms, conditions and limitations of Article IV of this Agreement,
including the timing thereof,unless such failure is caused by an Unavoidable Delay;
(c) Failure by the Developer to pay real estate taxes or special assessments on the
Development Property and Minimum Improvements as they become due;
(d) Appeal or challenge by the Developer or any party on its behalf of the Minimum
Market Value prior to the Termination Date;
(e) Failure by the Developer to use or allow the use of the Minimum Improvements for
the purposes contemplated by this Agreement, including failure to comply with Sections 7.5 and
10.3 of this Agreement.
(f) Transfer or Sale of the Development Property or the Minimum Improvements or any
part thereof by the Developer in violation of Sections 7.1 or 8.1 of this Agreement and without the
prior written permission by the Authority;
(g) If the Developer shall file a petition in bankruptcy, or shall make an assignment for
the benefit of its creditors or shall consent to the appointment of a receiver; or •
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(h) Failure by either party to observe or perform any material covenant, condition,
obligation or agreement on its part to be observed or performed under this Agreement or the
Assessment Agreement;
Section 9.2. Remedies on Default. Whenever any Event of Default referred to in section
8.1 of this Agreement occurs, the non-defaulting party may take any one or more of the following
actions after providing thirty days written notice to the defaulting party of the Event of Default, but
only if the Event of Default has not been cured within said thirty days or, if the Event of Default is
by its nature incurable within thirty days, the defaulting party does not provide assurances to the
non-defaulting party reasonably satisfactory to the non-defaulting party that the Event of Default
will be cured and will be cured as soon as reasonably possible:
(a) Suspend its performance under this Agreement, including refusing to close on the
Development Property, until it receives assurances from the defaulting party, deemed adequate by
the non-defaulting party, that the defaulting party will cure its default and continue its performance
under this Agreement;
(b) Terminate or rescind this Agreement;
(c) If the default occurs prior to completion of the Minimum Improvements, the
Authority may withhold the Certificate of Completion and Release of Forfeiture;
(d) If the default occurs prior to issuance of the Certificate of Completion and Release
of Forfeiture,revest title in the name of the Authority pursuant to Section 9.3 of this Agreement;
(e) Enforce the Assessment Agreement;
(f) Enforce the provisions of this Agreement relating to the Business Subsidy Act; and
(g) Take whatever action, including legal or administrative action, which may appear
necessary or desirable to the non-defaulting party to collect any payments due under this
Agreement, or to enforce performance and observance of any obligation, agreement, or covenant of
the defaulting party under this Agreement or the Assessment Agreement.
Section 9.3. Revesting Interest in the Authority Upon Happening of Event of Default
Subsequent to Conveyance to Developer. In the event that subsequent to conveyance of the
Development Property to the Developer and prior to the issuance of a Certificate of Completion and
Release of Forfeiture for the Minimum Improvements:
(a) the Developer, subject to Unavoidable Delays, fails to begin construction of the
Minimum Improvements in conformity with this Agreement and such failure to begin construction
is not cured within sixty(60) days after written notice from the Authority to the Developer to do so;
or
(b) subject to Unavoidable Delays, the Developer, after commencement of the
. construction of the Minimum Improvements, fails to carry out its obligations with respect to the
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completion of construction of the Minimum Improvements(including the nature and the date for the •
completion thereof), or abandons or substantially suspends construction work, and any such failure,
abandonment, or suspension shall not be cured, ended, or remedied within sixty (60) days after
written demand from the Authority to the Developer to do so; or
(c) the Developer shall fail to pay real estate taxes or assessments on the Development
Property when due,or shall place thereon any encumbrance or lien unauthorized by this Agreement,
or shall suffer any levy or attachment to be made, or any materialmen's or mechanics' lien, or any
other unauthorized encumbrance or lien to attach, and such taxes or assessments shall not have been
paid, or the encumbrance or lien removed or discharged or provision satisfactory to the Authority
made for such payment, removal, or discharge, within 30 days after written demand by the
Authority to do so or such longer period, not to exceed 60 days, as may reasonably be necessary to
remove said lien or encumbrance; provided, that if the Developer shall first notify the Authority of
its intention to do so, it may in good faith contest any mechanics' or other lien to remain
undischarged and unsatisfied during the period of such contest and any appeal, but only if the
Developer provides the Authority with a bank letter of credit or other security in the amount of the
lien,in a form satisfactory to the Authority,pursuant to which the bank will pay to the Authority the
amount of any lien in the event the lien is finally determined to be valid or, as an alternative to such
forms of security, has made a deposit with the district court in the manner provided in Minnesota
Statutes, section 514.10. During the course of such contest, the Developer shall keep the Authority
informed respecting the status of such defense; or
(d) there is, in violation of Sections 7.1 or 8.1 of this Agreement, any transfer of the
Development Property to an entity exempt from payment of real estate taxes or any Sale of the
Development Property or the Minimum Improvements or any part thereof, and such violation shall
not be cured within sixty(60)days after written demand by the Authority to the Developer,
then the Authority shall have the right to re-enter and take possession of the Development Property
and to terminate and revest in the Authority the interest of the Developer in the Development
Property;provided, however, that any exercise by the Authority of its rights or remedies hereunder
shall always be subject to and limited by, and shall not defeat, render invalid or limit in any way the
lien of any mortgage or other encumbrance specifically and previously authorized by the Authority
in writing under this Agreement or any rights or interests provided in this Agreement for the
protection of the holders of an approved encumbrance.
Section 9.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to the
parties is intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such right or power or shall
be construed to be a waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. In order to entitle the Authority or the Developer to
exercise any remedy reserved to it, it shall not be necessary to give notice, other than such notice as
may be required in Article IX of this Agreement.
•
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• Section 9.5. No Additional Waiver Implied by One Waiver. In the event any covenant or
agreement contained in this Agreement should be breached by either party and thereafter waived by
the other party, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent,previous or subsequent breach hereunder.
ARTICLE X
Additional Provisions
Section 10.1. Conflict of Interests: Representatives Not Individually Liable. No officer,
official, or employee of the Authority shall have any personal financial interest, direct or indirect, in
this Agreement, nor shall any such officer, official, or employee participate in any decision relating
to the Agreement which affects his or her personal financial interests, directly or indirectly. No
officer, official, or employee of the Authority shall be personally liable to the Developer, or any
successor in interest,in the event of any default or breach or for any amount which may become due
or on any obligation under the terms of this Agreement.
Section 10.2. Equal Employment Opportunity. The Developer, for itself and its successors
and assigns, agrees that during the construction of the Minimum Improvements provided for in this
Agreement, it will comply with all applicable equal employment and nondiscrimination laws and
• regulations.
Section 10.3. Restrictions on Use. The Developer, for itself and its successors and assigns,
agrees to devote the Property and Minimum Improvements only to such land use or uses as may be
permissible under the City's land use regulations. The Developer, for itself, its successors and
assigns, acknowledges the limitations on use of the Property and the Minimum Improvements
imposed by Section 469.105 of the EDA Act and agrees to comply with such restrictions. The
Developer, for itself and its successors and assigns, acknowledges the limitations on the use of the
Property and the Minimum Improvements imposed by Section 469.176, subd. 4c of the TIF Act and
agrees to comply with such restrictions through the Termination Date.
Section 10.4. Provisions Not Merged With Deed. None of the provisions of this Agreement
is intended to or shall be merged by reason of delivery of the Development Property Deed and the
Development Property Deed shall not be deemed to affect or impair the provisions and covenants of
this Agreement.
Section 10.5. Notices and Demands. Except as otherwise expressly provided in this
Agreement, any notice, demand, or other communication under the Agreement or any related
document by either party to the other shall be sufficiently given or delivered if it is dispatched by
registered or certified United States mail, postage prepaid, return receipt requested, or delivered
personally to:
•
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(a) in the case of the Authority: 7516 80th Street South •
Cottage Grove MN 55016
Attn: EDA Executive Director
(b) in the case of the Developer: South St.Paul Agri-Properties
or at such other address with respect to either such party as that party may, from time to time,
designate in writing and forward to the other as provided in this section 10.5.
Section 10.6. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 10.7. Disclaimer of Relationships. The Developer acknowledges that nothing
contained in this Agreement nor any act by the Authority or the Developer shall be deemed or
construed by the Developer or by any third person to create any relationship of third-party
beneficiary, principal and agent, limited or general partner, or joint venture between the Authority
and the Developer.
•
•I •
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• IN WITNESS WHEREOF, the Authority and the Developer have caused this Agreement to
be duly executed in their names and behalves on or as of the date first above written.
COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
By
Its President
By
Its Executive Director
STATE OF MINNESOTA )
) SS
COUNTY OF )
The foregoing instrument as acknowledged before me this day of July, 2001, by
• and , president and executive director, respectively, of
the Cottage Grove Economic Development Authority, a public body corporate and politic under the
laws of Minnesota, on behalf of the Economic Development Authority.
Notary Public
•
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SOUTH ST.PAUL AGRI-PROPERTIES •
By
Its
STATE OF MINNESOTA )
) ss
COUNTY OF )
The foregoing instrument was executed this day of July, 2001, by
, the of South St. Paul Agri-Properties, a Minnesota
partnership,on behalf of the partnership.
Notary Public
•
•
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• EXHIBIT A
LEGAL DESCRIPTION
The Development Property is located in Washington County, Minnesota, and is legally described as
follows:
[To be completed]
41
1Ill
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A-1
EXHIBIT B •
FORM OF
QUIT CLAIM DEED
[To be completed]
•
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• EXHIBIT C
LIST OF PRELIMINARY PLAN DOCUMENTS
The Minimum Improvements shall be constructed in accordance with the following preliminary
plan documents:
[To be completed]
•
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EXHIBIT D
FORM OF •
CERTIFICATE OF COMPLETION
AND RELEASE OF FORFEITURE
WHEREAS, the Cottage Grove Economic Development Authority (the "Grantor"), by a
deed recorded in the office of the County Recorder in Washington County,Minnesota, as Document
No. , has conveyed to South St. Paul Agri-Properties, a Minnesota
partnership (the "Grantee"), the following described land in County of Washington and State of
Minnesota,to-wit:
(to be completed prior to execution)
and
WHEREAS, said deed was executed pursuant to that certain Contract for Private
Development by and between the Grantor and the Grantee dated the day of , 2001
and recorded in the office of the County Recorder in Washington County, Minnesota, as Document
No. , which Contract for Private Development contained certain covenants and
restrictions regarding completion of the Minimum Improvements; and
WHEREAS, said Grantee has performed said covenants and conditions in a manner deemed
sufficient by the Grantor to permit the execution and recording of this certification.
NOW, THEREFORE, this is to certify that all construction of the Minimum Improvements •
specified to be done and made by the Grantee has been completed and the covenants and conditions
in the Contract for Private Development have been performed by the Grantee therein and that the
provisions for forfeiture of title and right to re-entry for breach of condition subsequent by Grantor
is hereby released absolutely and forever, and the County Recorder in Washington County,
Minnesota, is hereby authorized to accept for recording and to record the filing of this instrument,to
be a conclusive determination of the satisfactory termination of the covenants and conditions
relating to completion of the Minimum Improvements.
Dated: , COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
By
Its President
By
Its Executive Director
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STATE OF MINNESOTA )
•
COUNTY OF )ss.)
The foregoing instrument as acknowledged before me this day of , 2001,
by and , the president and executive director,
respectively, of the Cottage Grove Economic Development Authority, a public body corporate and
politic,on behalf of the Economic Development Authority.
Notary Public
•
•
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EXHIBIT E •
FORM OF
ASSESSMENT AGREEMENT
and
ASSESSOR'S CERTIFICATION
By and among
THE COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY •
and
SOUTH ST. PAUL AGRI-PROPERTIES
and
ASSESSOR FOR WASHINGTON COUNTY,MINNESOTA
This Document was drafted by:
KENNEDY& GRAVEN,Chartered
470 Pillsbury Center
Minneapolis,Minnesota 55402
(612) 337-9300
•
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• THIS ASSESSMENT AGREEMENT, dated as of this day of July, 2001, by and
between the Cottage Grove Economic Development Authority, a public body corporate and politic
(the "Authority") and South St. Paul Agri-Properties, a Minnesota - partnership (the
"Developer").
WITNESSETH:
WHEREAS,on or before the date hereof,the Authority and the Developer have entered into
a Contract for Private Development (the "Development Agreement") pursuant to which the
Authority will convey to the Developer certain real property in Washington County, Minnesota,
which property is legally described on Exhibit A hereto, (the"Property"); and
WHEREAS, pursuant to the Development Agreement, the Developer will construct a
warehouse facility containing approximately 81,000 square feet(the"Minimum Improvements") on
the Property; and
WHEREAS, the Authority and Developer desire to establish a minimum market value for
the Property and the Minimum Improvements to be constructed thereon, pursuant to Minnesota
Statutes, section 469.177,Subd. 8; and
WHEREAS, the Authority and the Assessor for Washington County, Minnesota have
reviewed the plans and specifications for the Minimum Improvements which the Developer has
agreed to construct or cause to be constructed on the Property pursuant to the Development
• Agreement.
NOW, THEREFORE, the parties to this Assessment Agreement, in consideration of the
promises, covenants and agreements made herein and in the Development Agreement by each to the
other,do hereby agree as follows:
1. The Minimum Market Value for the Property with the Minimum Improvements
shall be Two Million Nine Hundred Thousand Dollars ($2,900,000). The parties agree that this
Minimum Market Value shall be placed against the Property as of January 2, 2002, for taxes
payable beginning in 2003, notwithstanding any failure to complete construction of such Minimum
Improvements by that date.
2. The Minimum Market Value herein established shall be of no further force and
effect and this Assessment Agreement shall terminate on the Termination Date. The Termination
Date will occur when the Authority's TIF District No. 1-10 is decertified, which is expected to be
nine years after receipt by the Authority of the first tax increment or 11 years after approval of the
TIF Plan,whichever occurs first.
3. This Assessment Agreement shall be promptly recorded by the Developer with a
copy of Minnesota Statutes, section 469.177, Subd. 8, set forth in Exhibit B hereto. The Developer
shall pay all costs of recording this Assessment Agreement.
•
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4. Neither the preambles nor the provisions of this Assessment Agreement are intended •
to,nor shall they be construed as, modifying the terms of the Development Agreement. Unless the
context indicates clearly to the contrary,the terms used in this Assessment Agreement shall have the
same meaning as the terms used in the Development Agreement.
5. This Assessment Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
6. Each of the parties warrants and represents that it has authority to enter into this
Assessment Agreement and to take all actions required of it and has taken all actions necessary to
authorize the execution and delivery of this Assessment Agreement.
7. In the event that any provision of this Assessment Agreement is held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
8. The parties hereto agree that they will, from time to time, execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, such supplements, amendments and
modifications hereto, and such further instruments as may reasonably be required for correcting any
inadequate, or incorrect, or amended description of the Property, or for carrying out the expressed
intention of this Assessment Agreement.
9. Except as provided in Section 8 hereof, this Assessment Agreement may not be
amended nor any of its terms modified except by a writing authorized and executed by all parties •
hereto.
10. This Assessment Agreement may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall constitute one and the same
instrument.
11. This Assessment Agreement shall be governed by and construed in accordance with
the laws of Minnesota.
•
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•
COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
By
Its President
By
Its Executive Director
STATE OF MINNESOTA )
) SS
COUNTY OF )
The foregoing instrument as acknowledged before me this day of July, 2001, by
and , president and executive director, respectively, of
the Cottage Grove Economic Development Authority, a public body corporate and politic under the
•
laws of Minnesota, on behalf of the Economic Development Authority.
Notary Public
•
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SOUTH ST.PAUL AGRI-PROPERTIES •
By
Its
STATE OF MINNESOTA )
) ss
COUNTY OF )
The foregoing instrument was executed this day of July, 2001, by
, the of South St. Paul Agri-Properties, a
Minnesota partnership,on behalf of the partnership.
Notary Public
•
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CERTIFICATION BY ASSESSOR
The undersigned, having reviewed the plans and specifications for the improvements to be
constructed and the market value assigned to the land upon which the improvements are to be
constructed, and being of the opinion that the minimum market value contained in the foregoing
Assessment Agreement appears reasonable,hereby certifies as follows: The undersigned Assessor,
being legally responsible for the assessment of the described property as Washington County
Assessor,hereby certifies that the market value assigned to such land and improvements on January
1, 2002 for taxes payable beginning in 2003 shall be not less than Two Million Nine Hundred
Thousand Dollars ($2,900,000)until termination of this Agreement.
Assessor for Washington County,Minnesota
STATE OF MINNESOTA )
) ss •
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2001 by ,the Assessor for Washington County,Minnesota.
•
Notary Public
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EXHIBIT A TO •
ASSESSMENT AGREEMENT
The Property is legally described as follows:
[To be completed]
•
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• EXHIBIT B TO
ASSESSMENT AGREEMENT
Section 469.177, subd. 8. Assessment Agreements. An authority may enter into a written
assessment agreement with any person establishing a minimum market value of land, existing
improvements, or improvements to be constructed in a district, if the property is owned or will be
owned by the person. The minimum market value established by an assessment agreement may be
fixed,or increase or decrease in later years from the initial minimum market value. If an agreement
is fully executed before July 1 of an assessment year, the market value as provided under the
agreement must be used by the county or local assessor as the taxable market value of the property
for that assessment. Agreements executed on or after July 1 of an assessment year become effective
for assessment purposes in the following assessment year. An assessment agreement terminates on
the earliest of the date on which conditions in the assessment agreement for termination are
satisfied, the termination date specified in the agreement, or the date when tax increment is no
longer paid to the authority under section 469.176, subdivision 1. The assessment agreement shall
be presented to the county assessor, or city assessor having the powers of the county assessor, of the
jurisdiction in which the tax increment financing district and the property that is the subject of the
agreement is located. The assessor shall review the plans and specifications for the improvements
to be constructed, review the market value previously assigned to the land upon which the
improvements are to be constructed and, so long as the minimum market value contained in the
assessment agreement appears, in the judgment of the assessor, to be a reasonable estimate, shall
execute the following certification upon the agreement:
. The undersigned assessor, being legally responsible for the assessment of the above
described property, certifies that the market values assigned to the land and improvements are
reasonable.
The assessment agreement shall be filed for record and recorded in the office of the county
recorder or the registrar of titles of each county where the real estate or any part thereof is situated.
After the agreement becomes effective for assessment purposes, the assessor shall value the
property under section 273.11, except that the market value assigned shall not be less than the
minimum market value established by the assessment agreement. The assessor may assign a market
value to the property in excess of the minimum market value established by the assessment
agreement. The owner of the property may seek, through the exercise of administrative and legal
remedies, a reduction in market value for property tax purposes, but no city assessor, county
assessor, county auditor, board of review, board of equalization, commissioner of revenue, or court
of this state shall grant a reduction of the market value below the minimum market value established
by the assessment agreement during the term of the agreement filed of record regardless of actual
market values which may result from incomplete construction of improvements, destruction, or
diminution by any cause, insured or uninsured, except in the case of acquisition or reacquisition of
the property by a public entity. Recording an assessment agreement constitutes notice of the
agreement to anyone who acquires any interest in the land or improvements that is subject to the
assessment agreement, and the agreement is binding upon them.
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EXHIBIT F
•
CONTRACT
FOR •
PRIVATE DEVELOPMENT
By and Between
COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY
and
GROVE RAINBOW LIMITED PARTNERSHIP
This document drafted by:
KENNEDY&GRAVEN,CHARTERED
470 Pillsbury Center
Minneapolis,MN 55402
(612)337-9300
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TABLE OF CONTENTS •
PAGE
PREAMBLE 1
ARTICLE I
Definitions
Section 1.1. Definitions
1
Section 1.2. Exhibits 4
Section 1.3. Rules of Interpretation 4
ARTICLE II
Representations and Warranties
Section 2.1. Representations by the Authority 4
Section 2.2. Representations and Warranties by the Developer 5
ARTICLE III
Development Property;Public Assistance
Section 3.1. Development Property; Conveyance of Home Depot Property 6
Section 3.2. Public Improvements 6
Section 3.3. Reimbursement of Qualified Costs 6
Section 3.4. No Representation Regarding Available Tax Increment 6
ARTICLE IV
Construction of Minimum Improvements
Section 4.1. Description of Minimum Improvements 7
Section 4.2. Construction of Minimum Improvements 7
Section 4.3. Construction Plans 7
Section 4.4. Commencement and Completion of Construction 8
Section 4.5. Certificate of Completion and Release of Forfeiture 8
Section 4.6. Reconstruction of Improvements 9
Section 4.7. Area Charges 9
ARTICLE V
Business Subsidy Act Requirements
Section 5.1. Compliance with Business Subsidy Provisions 9
Section 5.2. Job and Wage Goals 10
Section 5.3. Remedies 10
Section 5.4. Reports 11
411
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•
ARTICLE VI -
Insurance
Section 6.1. Required Insurance 11
Section 6.2 Evidence of Insurance 12
ARTICLE VII
Collection of Taxes;Assessment Agreement;
Reimbursement of Increment
Section 7.1. Taxes 13
Section 7.2. Assessment Agreements 14
Section 7.3 Right to Collect Delinquent Taxes 14
Section 7.4 Use of Tax Increments 15
Section 7.5. Reimbursement of Tax Increment 18
ARTICLE VIII
Prohibition Against Sale; Encumbrances
Section 8.1 Prohibition Against Sale of Minimum Improvements 15
1111Section 8.2 Limitation Upon Encumbrance of Development Property 17
ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined 17
Section 9.2. Remedies on Default 17
Section 9.3. No Remedy Exclusive 18
Section 9.4. No Additional Waiver Implied by One Waiver 18
ARTICLE X
Additional Provisions
Section 10.1. Conflict of Interests;Representatives Not Individually Liable 18
Section 10.2. Equal Employment Opportunity 19
Section 10.3. Restrictions on Use 19
Section 10.4. Provisions Not Merged With Deed 19
Section 10.5. Notices and Demands 19
Section 10.6. Counterparts 19
Section 10.7. Disclaimer of Relationships 19
TESTIMONIUM 20
SIGNATURES 20
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EXHIBIT A LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY •
EXHIBIT B LIST OF PRELIMINARY PLAN DOCUMENTS
EXHIBIT C FORM OF CERTIFICATE OF COMPLETION
EXHIBIT D FORM OF ASSESSMENT AGREEMENT
EXHIBIT E LEGAL DESCRIPTION OF HOME DEPOT PROPERTY
EXHIBIT F FACADE REHABILITATION PLANS
•
.
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•
•
CONTRACT FOR PRIVATE DEVELOPMENT
THIS AGREEMENT, made this day of July, 2001, by and between the Cottage
Grove Economic Development Authority, a public body corporate and politic under the laws of
Minnesota, having its principal office at 7516 80th Street South, Cottage Grove, Minnesota 55016-
3195 (the "Authority") and Grove Rainbow Limited Partnership, a Minnesota limited partnership,
having its principal office at (the"Developer").
WITNESSETH:
WHEREAS, the Authority created Development District No. 1 (the "Development
District") and adopted a program (the "Program") for it, all in conformance with Minnesota
Statutes, Sections 469.124 through 469.134, the Authority Development Districts Act (the "Act");
and
WHEREAS, the Authority will establish tax increment financing district No. 1-12 ("TIF
District No. 1-12") and will adopt a tax increment financing plan (the "TIF Plan") related thereto;
and
• WHEREAS, in order to achieve the objectives of the Program and the TIF Plan, the
Authority is prepared to construct certain public improvements and perform certain site
improvements benefiting the Development Property and otherwise assist the Developer in order to
bring about development of the Development Property in accordance with the Program, the TIF
Plan and this Agreement; and
WHEREAS, the Authority believes that the development of land within TIF District No. 1-
12 pursuant to this Agreement and the fulfillment generally of this Agreement are in the vital and
best interests of Cottage Grove and the health, safety, morals, and welfare of its residents, and in
accord with the public purposes and provisions of the applicable state and local laws and
requirements under which the Development District has been undertaken.
NOW, THEREFORE, in consideration of the covenants and the mutual obligations
contained herein, the Authority and the Developer hereby covenant and agree with the other as
follows:
ARTICLE I
Definitions
Section 1.1. Definitions. In this Agreement the following terms shall have the meanings
given unless a different meaning clearly appears from the context:
• "Act" means the City Development Districts Act, Minnesota Statutes, sections 469.124
through 469.134, as amended.
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1
•
"Agreement" means this Agreement, as the same may be from time to time modified,
amended,or supplemented.
"Assessment Agreement" means the two agreements in the form contained in Exhibit D
attached hereto.
"Assessor"means the assessor for Washington County,Minnesota.
"Authority"means the Cottage Grove Economic Development Authority.
"Available Tax Increment" means 90 percent of the Tax Increment remaining after the
Authority has retained the first 10 percent of the estimated Tax Increment.
"Business Subsidy Act"means Minnesota Statutes, sections 1161993 through 116J.995 (the
"Business Subsidy Act").
"Certificate of Completion" means the certificate, in the form contained in Exhibit C
attached hereto,which will be provided to the Developer pursuant to Article IV of this Agreement.
"City" means the city of Cottage Grove, a municipal corporation under the laws of
Minnesota.
•
"Construction Plans"means the final plans for construction of the Minimum Improvements
to be submitted by the Developer and approved by the Authority.
"County"means Washington County,Minnesota.
"Developer"means Grove Rainbow Limited Partnership, a Minnesota limited partnership.
"Development Property" means the real property upon which the Minimum Improvements
will be constructed,which property is legally described in Exhibit A attached hereto.
•
"EDA Act"or"Economic Development Authority Act"means Minnesota Statutes, sections
469.090 through 469.1081, as amended.
"Event of Default"means an action by the Developer or the Authority listed in Article IX of
this Agreement.
"Home Depot Property" means that portion of the Development Property which the
Developer will convey to another party for construction of a 96,000 square foot Home Depot store.
"Façade Rehabilitation Plans" means the plans to rehabilitate the small tenant space on the
Development Property, as described in Exhibit F attached hereto.
•
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• "Minimum Improvements" means those elements described in Section 4.1 of this
Agreement. After completion of the Minimum Improvements, the term shall mean the
Development Property as improved by the Minimum Improvements.
"Minimum Market Value" means a market value for real estate tax purposes of at least
$5,045,000 with respect to the Development Property and Minimum Improvements as of January 2,
200_ for taxes payable beginning in 200_ through the Termination Date. The term also means a
market value for real estate tax purposes of at least $5,775,000 with respect to the Home Depot
Property and Minimum Improvements as of January 2, 200_ for taxes payable beginning in 200_
through the Termination Date.
"Preliminary Plans" means, collectively, the plans, drawings and specifications for the
construction of the Minimum Improvements which are listed on Exhibit B attached hereto.
"Qualified Costs" mean the costs of the parking lot, landscaping and other cite
improvements incurred by the Developer in constructing the Minimum Improvements in a principal
amount not to exceed$500,000.
"Sale" means any sale, conveyance, lease, exchange, forfeiture other transfer of the
Developer's interest in the Minimum Improvements or the Development Property, whether
voluntary or involuntary, except as permitted under section 8.1(c)of this Agreement.
• "State"means the state of Minnesota.
"Tax Increment" means the tax increment paid to the Authority by the County with regard
to the Minimum Improvements and the Development Property.
"Tax Increment Financing Act" or "TIF Act" means Minnesota Statutes, sections 469.174
through 469.179,as amended.
"Tax Increment Financing District"or"TIF District"means the Authority's TIF District No.
1-12.
"Tax Increment Financing Plan" or "TIF Plan" means the tax increment plan for TIF
District No. 1-12.
"Tax Official"means the Assessor, County auditor, County or State board of equalization,
the commissioner of revenue of the State, or any State or federal district court, the tax court of the
State,or the State supreme court.
"Termination Date" means the date the TIF District terminates, which cannot exceed the
term of 25 years after receipt of the first increment.
"Unavoidable Delays" means delays which are the direct result of unanticipated adverse
weather conditions; strikes or other labor troubles; materials or labor shortages; fire or other
•
casualty to the Minimum Improvements; litigation commenced by third parties which,by injunction
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•
or other similar judicial action, directly results in delays., or, except those of the Authority •
reasonably contemplated by this Agreement, any acts or omissions of any federal, State or local
governmental unit which directly result in delays in construction of the Minimum Improvements, or
any other reasons beyond the control of the Developer.
Section 1.2. Exhibits. The following exhibits are attached to and by reference made a part
of this Agreement:
Exhibit A. Legal description of the Development Property
Exhibit B. List of Preliminary Plan Documents
Exhibit C. Form of Certificate of Completion
Exhibit D. Form of Assessment Agreement
Exhibit E. Legal Description of the Home Depot Property
Exhibit F. Façade Rehabilitation Plans
Section 1.3. Rules of Interpretation. (a) This Agreement shall be interpreted in accordance
with and governed by the laws of Minnesota.
(b) The words "herein" and "hereof' and words of similar import, without reference to
any particular section or subdivision, refer to this Agreement as a whole rather than any particular
section or subdivision hereof.
(c) References herein to any particular section or subdivision hereof are to the section or •
subdivision of this Agreement as originally executed.
(d) Any titles of the several parts, articles and sections of this Agreement are inserted for
convenience and reference only and shall be disregarded in construing or interpreting any of its
provisions.
ARTICLE II
Representations and Warranties
Section 2.1. Representations by the Authority. The Authority makes the following
representations as the basis for the undertakings on its part herein contained:
(a) The Authority is a public body corporate and politic under the laws of Minnesota.
The Authority has the power to enter into this Agreement and carry out its obligations hereunder.
(b) The persons executing this Agreement and related agreements and documents on
behalf of the Authority have the authority to do so and to bind the Authority by their actions.
(c) Development District No. 1 is a development district within the meaning of the Act
and was created, adopted and approved in accordance with the terms of the Act. •
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• (d) TIF District No. 1-12 is a redevelopment tax increment financing district within the
meaning of the TIF Act.
(e) The Authority has received no notice or communication from any local, State or
federal official that the activities of the Developer or the Authority in the Development District may
be or will be in violation of any environmental law or regulation. The Authority is aware of no facts
the existence of which would cause it to be in violation of any local, State or federal environmental
law,regulation or review procedure.
Section 2.2. Representations and Warranties by the Developer. The Developer makes the
following representations as the basis for the undertakings on its part herein contained:
(a) The Developer is a limited partnership duly organized and in good standing under
the laws of Minnesota. The limited partnership includes as a general partner. The
Developer is not in violation of any provisions of its organizational documents. The Developer has
the power to enter into this Agreement and carry out its obligations hereunder. The persons
executing this Agreement and related agreements and documents on behalf of the Developer have
the authority to do so and to bind the Developer by their actions.
(b) The Developer will construct the Minimum Improvements on the Development
Property in substantial accordance with the terms of this Agreement, the Program, the TIF Plan, the
Construction Plans and all local, State and federal laws and regulations, including, but not limited
to, environmental,zoning,building code and public health laws and regulations.
(c) The Developer will apply for and use its best efforts to obtain, in a timely manner,
all required permits, licenses and approvals, and will meet, in a timely manner, the requirements of
all applicable local, State and federal laws and regulations which must be obtained or met before the
Minimum Improvements may be lawfully constructed or used for their intended purpose.
(d) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of, the
terms, conditions or provisions or any restriction or any evidence of indebtedness, agreement or
instrument of whatever nature to which the Developer is now a party or by which it is bound, or
constitutes a default under any of the foregoing.
(e) The Developer would not be willing to construct the Minimum Improvements but
for the commitment by the Authority to grant the financial assistance outlined in this Agreement and
the use of tax increment for such assistance is essential to the Developer's ability to carry out its
obligations under this Agreement.
S
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ARTICLE III •
Development Property; Public Assistance
Section 3.1. Development Property; Conveyance of Home Depot Property. The Developer
is the fee owner of the Development Property or will use its best efforts to obtain title to the
Development Property by no later than . The Developer agrees to make
certain improvements to the Home Depot Property, including grading, providing utilities and
installing parking improvement. After constructing said site improvements,the Developer agrees to
convey the Home Depot Property to a third party who will construct a 96,000 square foot Home
Depot store thereon.
Section 3.2. Public Improvements. (a) The City has constructed or will construct public
improvements for the benefit of the Development Property. These improvements include sanitary
sewer and water improvements and construction of a regional storm water retention pond on a
portion of the Development Property. The Developer agrees to grant to the Authority or the City
such temporary or permanent easements on the Development Property as may be necessary for the
Authority to construct and maintain the public improvements. The Developer agrees to clear and
convey the portion of the Development Property intended for the storm water retention pond to the
Authority or the City at no cost and to enter into an agreement with the Authority or the City
regarding maintenance of the pond. The public improvements will be constructed without direct
cost to the Developer and without special assessments levied against the Development Property.
•
(b) The parties recognize that a portion of an existing sanitary sewer line lies beneath a
portion of the improvements on the Development Property. The Developer agrees to maintain the
portion of the line beneath its building or to notify the Authority in writing that it will not maintain
the line. If the Developer notifies the Authority that it will not maintain that portion of the line, the
Authority shall have the option to relocate the line of the Developer's expense.
Section 3.3. Reimbursement of Qualified Costs. The Developer has represented to the
Authority that the cost of constructing the Minimum Improvements exceeds available private
financing and has requested assistance from the Authority for the cost of the parking lot,
landscaping and other site improvements related to the project (the "Qualified Costs"). The
Authority agrees to reimburse the Developer for the Qualified Costs in a principal amount not to
exceed $500,000. Reimbursement of the Qualified Costs shall be made following issuance of the
Certificate of Completion out of Available Tax Increment. Available Tax Increment shall be the
sole and exclusive source of reimbursement of the Qualified Costs. The Developer agrees to
maintain such plans, specifications, documents and other records as to enable it to demonstrate with
specificity to the Authority its actual and reasonable expenses associated with the Qualified Costs.
The Authority shall have no obligation in a given year to reimburse the Developer for any Qualified
Cost except to the extent the Authority receives Available Tax Increment. The Authority shall have
no obligation to reimburse the Developer for any Qualified Cost until and unless the Developer first
provides the Authority with evidence of its prior payment of such expense.
Section 3.4. No Representation Regarding Available Tax Increment. The Authority's •
financial commitment under this Agreement is a revenue obligation only and will be paid by the
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Authority only out of Available Tax Increment. The Authority makes no representations or
warranties that the Available Tax Increment will be sufficient to reimburse the Developer for the
Qualified Costs. The Developer acknowledges that Available Tax Increment is subject to
calculations by the County and changes in State law and that some or all of the Qualified Costs may
not be repaid prior to the Termination Date. The Developer also acknowledges that the 2001
Minnesota legislature made significant changes to the TIF Act and to the State's property tax
structure, including elements applicable to commercial and industrial properties, which changes
may have an adverse impact on the amount of Available Tax Increment. The Developer
acknowledges that the estimates of Available Tax Increment which may have been made by the
Authority or its agents, officers or employees are estimates only and are not intended for the
Developer's reliance.
ARTICLE IV
Construction of Minimum Improvements
Section 4.1. Description of Minimum Improvements. The Minimum Improvements
include each of the following:
a) demolition of the improvements currently occupied by Walgreen's;
b) rehabilitation of the small tenants' space in accordance with the Facade
• Rehabilitation Plans;
c) grading, installation of utilities and construction of parking improvements on the
Home Depot Property;
d) demolition of the Burger King building; and
e) construction of a fuel station on the Burger King site.
Section 4.2. Construction of Minimum Improvements. The Developer agrees that it will
construct the Minimum Improvements on the Development Property substantially in accordance
with the Construction Plans and at all times prior to the Termination Date will maintain, preserve
and keep the Minimum Improvements or cause the Minimum Improvements to be maintained,
preserved and kept in good repair and condition,reasonable wear and tear excepted. The Developer
recognizes that it is because the Developer has agreed to construct the Minimum Improvements that
the Authority is willing to offer the assistance outlined in this Agreement. The Developer
acknowledges that, in addition to the requirements of this Agreement, construction of the Minimum
Improvements will necessitate compliance with other reviews and approvals by the Authority and
possibly other governmental agencies and agrees to submit all applications for and pursue to their
conclusion all other approvals needed prior to constructing the Minimum Improvements.
Section 4.3. Construction Plans. (a) Within 30 days after execution of this Agreement, the
Developer shall submit dated Construction Plans to the Authority. The Construction Plans shall
•
provide for the construction of the Minimum Improvements and shall be in substantial conformity
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with the Preliminary Plans and this Agreement. The Authority will approve the Construction Plans 1110
if they (1) conform to the Preliminary Plans listed in Exhibit`B attached hereto; (2) conform to all
applicable federal, State and local laws, ordinances, rules and regulations; (3) are adequate to
provide for the construction of the Minimum Improvements; (4) conform to the State building code;
and(5)if there has occurred no uncured Event of Default on the part of the Developer. No approval
by the Authority shall relieve the Developer of the obligation to comply with the terms of this
Agreement, the terms of any applicable federal, State and local laws, ordinances, rules and
regulations in the construction of the Minimum Improvements. No approval by the Authority shall
constitute a waiver of an Event of Default.
(b) If the Developer desires to make any change in the Construction Plans after their
approval by the Authority with regard to the design, exterior materials, site plan or square footage of
the Minimum Improvements or any other change which would also require review or reapproval
under any applicable code, ordinance or regulation,the Developer shall submit the proposed change
to the Authority for its approval. If the proposed change conforms to the requirements of this
section 4.3 with respect to the original Construction Plans or is otherwise acceptable to the
Authority,the Authority shall approve the proposed change. Such change in the Construction Plans
shall be deemed approved by the Authority unless rejected, in whole or in part, by written notice by
the Authority to the Developer, setting forth in detail the reasons therefor. Such rejection shall be
made within 5 days after receipt of the written notice of such change from the Developer.
Section 4.4. Commencement and Completion of Construction. Subject to Unavoidable •
Delays, the Developer shall commence construction of the Minimum Improvements no later than
. Subject to Unavoidable Delays, the Developer shall have substantially completed
the construction of the Minimum Improvements no later than . All work with
respect to the Minimum Improvements to be constructed or provided by the Developer on the
Development Property shall be in conformity with the Construction Plans. The Developer shall
make such reports to the Authority regarding construction of the Minimum Improvements as the
Authority deems necessary or helpful in order to monitor progress on construction of the Minimum
Improvements.
Section 4.5. Certificate of Completion and Release of Forfeiture. (a) After substantial
completion of the Minimum Improvements in accordance with the Construction Plans and all terms
of this Agreement, the Authority will furnish the Developer with a Certificate of Completion in the
form of Exhibit C hereto. Such certification by the Authority shall be a conclusive determination of
satisfaction and termination of the agreements and covenants in this Agreement and in the
Development Property Deed with respect to the obligations of the Developer to construct the
Minimum Improvements and the dates for the beginning and completion thereof. The Certificate of
Completion shall only be issued after issuance of a certificate of occupancy by the City.
(b) The Certificate of Completion provided for in this section 4.5 shall be in such form
as will enable it to be recorded in the proper County office for the recordation of deeds and other
instruments pertaining to the Development Property. If the Authority shall refuse or fail to provide
such certification in accordance with the provisions of this section 4.5,the Authority shall,within 30
days after written request by the Developer, provide the Developer with a written statement, •
indicating in adequate detail in what respects the Developer has failed to complete the Minimum
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• Improvements in accordance with the provisions of the Agreement, or is otherwise in default of a
material term of this Agreement, and what measures or acts will be necessary, in the opinion of the
Authority, for the Developer to take or perform in order to obtain such certification.
Section 4.6. Reconstruction of Improvements. If the Minimum Improvements are damaged
or destroyed before or after completion thereof and issuance of a Certificate of Completion, but
before the Termination Date, the Developer agrees, for itself and its successors and assigns, to
reconstruct the Minimum Improvements to a value at least equal to the Minimum Market Value
within one year of the date of the damage or destruction. No delay or failure by the Developer or
any successor or assign to reconstruct the Minimum Improvements as required by this Section 4.6
shall alter or limit the Developer's obligations under the Assessment Agreement,which shall remain
in full force and effect until the Termination Date. The Minimum Improvements shall be
reconstructed in accordance with the approved Construction Plans, or such modifications thereto as
may be requested by the Developer and approved by the Authority in accordance with Section 4.3
of this Agreement. The Developer's obligation to reconstruct the Minimum Improvements pursuant
to this Section 4.6 shall end on the Termination Date.
Section 4.7. Area Charges. It will be necessary for the Developer to plat the Development
Property in order to construct the Minimum Improvements. The Developer recognizes that platting
necessitates payment to the City of certain area trunk charges for water, sanitary sewer and storm
sewer improvements. The Developer agrees to pay the required area trunk charges to the City.
• ARTICLE V
Business Subsidy Act Requirements
Section 5.1. Compliance with Business Subsidy Provisions. The parties agree and represent
to each other as follows:
(a) The subsidy provided by the Authority to the Developer pursuant to this Agreement
includes the construction of certain public improvements at no cost to the Developer and
reimbursing the Developer for up to $500,000 of site improvement costs. The value of the subsidy
is$
(b) The public purposes of the subsidy are to promote the redevelopment of a shopping
center and construction of additional retail space in the City, generate spin-off development at a key
location in the community, increase net jobs in the City and the State, and increase the tax base of
the City and the State.
(c) The goals for the subsidy are to secure construction of the Minimum Improvements
on the Development Property; to maintain the Minimum Improvements as a retail facility for at
least five years as described in clause (f) below; and to create the jobs and wage levels in
accordance with section 5.2 of this Agreement.
• (d) If the goals described in clause (c) above are not met, the Developer must make the
payments to the Authority described in section 5.3.
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•
(e) The subsidy is needed because the cost of the Development Property at fair market
value plus the cost of public improvements and site preparation benefiting the Property makes
redevelopment of the existing shopping center and construction of a new retail facility financially
infeasible without public assistance, all as determined by the Authority upon approval of the TIF
Plan.
(f) The Developer must continue operation of the Minimum Improvements as a retail
facility for at least five years after the date of issuance of the Certificate of Completion and Release
of Forfeiture.
(g) The Developer does not have a parent corporation.
(h) The Developer has not received, and does not expect to receive financial assistance
from any other grantor as defined in the Business Subsidy Act in connection with purchase of the
Development Property or construction of the Minimum Improvements.
Section 5.2. Job and Wage Goals. Within two years after the date of issuance of the
Certificate of Completion and Release of Forfeiture (the "Compliance Date"), the Developer shall
cause to be created at least new full-time equivalent jobs on the Development Property
(excluding any jobs previously existing in the State as of the date of this Agreement and relocated to
this site) and shall cause the wages for the three new employees to be no less than$ per hour, •
exclusive of benefits. Notwithstanding anything to the contrary herein, if the wage and job goals
described in this section 5.2 are met by the Compliance Date, those goals are deemed satisfied
despite the Developer's continuing obligations under Sections 5.1(f) and 5.4. The Authority may,
after a public hearing, extend the Compliance Date by up to one year, provided that nothing in this
Section 5.2 will be construed to limit the Authority's legislative discretion regarding such extension.
Section 5.3. Remedies. If the Developer fails to meet the goals described in Section 5.1(c),
the Developer shall repay to the Authority upon written demand from the Authority a pro rata share
of the amount of$ , representing the amount of the subsidy granted to the Developer
and interest on said amount at the implicit price deflator as defined in Minnesota Statutes, Section
275.50, subd. 2, accrued from the date of issuance of the Certificate of Completion to the date of
payment. The term pro rata share means percentages calculated as follows:
(i) if the failure relates to the number of jobs,the jobs required less the jobs created,
divided by the jobs required;
(ii) if the failure relates to wages, the number of jobs required less the number of
jobs that meet the required wages,divided by the number of jobs required;
(iii) if the failure relates to maintenance of the warehouse facility in accordance with
Section 5.1(f), 60 less the number of months of operation as a warehouse facility(where any
month in which the warehouse facility is in operation for at least 15 days constitutes a month
of operation), commencing on the date of the Certificate of Completion and ending with the •
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• date the warehouse facility ceases operation as determined by the Authority, divided by 60;
and
(iv) if more than one of clauses (i) through (iii) apply, the sum of the applicable
percentages,not to exceed 100%.
Nothing in this Section 5.3 shall be construed to limit the Authority's remedies under Article
VIII hereof. In addition to the remedy described in this Section 5.3 and any other remedy available
to the Authority for failure to meet the goals stated in Section 5.1(c), the Developer agrees and
understands that it may not a receive a business subsidy from the Authority or any grantor as
defined in the Business Subsidy Act for a period of five years from the date of the failure or until the
Developer satisfies its repayment obligation under this Section 5.3,whichever occurs first.
Section 5.4. Reports. The Developer must submit to the Authority a written report
regarding business subsidy goals and results by no later than March 1 of each year, commencing
March 1, 200_and continuing until the later of(i) the date the goals stated Section 5.1(c) are met;
(ii) 30 days after expiration of the five-year period described in Section 5.1(f); or(iii)if the goals are
not met,the date the subsidy is repaid in accordance with Section 5.3. The report must comply with
Section 116J.994, subdivision 7 of the Business Subsidy Act. The Authority will provide
information to the Developer regarding the required forms. If the Developer fails to timely file any
report required under this Section 5.4, the Authority will mail the Developer a warning within one
• week after the required filing date. If, after 14 days of the postmarked date of the warning, the
Developer fails to provide a report, the Developer must pay to the Authority a penalty of$100 for
each subsequent day until the report is filed. The maximum aggregate penalty payable under this
Section 5.4 is $1,000.
ARTICLE VI
Insurance
Section 6.1. Required Insurance. (a) The Developer agrees to provide and maintain at all
times during the process of constructing the Minimum Improvements and, from time to time at the
request of the Authority, furnish the Authority with proof of payment of premiums on:
(i) Builder's risk insurance, written on the so-called `Builder's Risk --
Completed Value Basis," in an amount equal to one hundred percent (100%) of the
insurable value of the Minimum Improvements at the date of completion, and with coverage
available in nonreporting form on the so called"all risk"form of policy;
(ii) Comprehensive general liability insurance (including operations, contingent
liability, operations of subcontractors, completed operations and contractual liability
insurance)together with an Owner's Contractor's Policy with limits against bodily injury and
• property damage of not less than $2,000,000 for each occurrence(to accomplish the above-
required limits,an umbrella excess liability policy may be used); and
10
(iii) Workers'compensation insurance,with statutory coverage.
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•
The policies of insurance required pursuant to clauses (i) and(ii) above shall be in form and content
reasonably satisfactory to the Authority and shall be placed with financially sound and reputable
insurers licensed to transact business in Minnesota. The policy of insurance delivered pursuant to
clause (i) above shall contain an agreement of the insurer to give not less than thirty (30) days'
advance written notice to the Authority in the event of cancellation of such policy or change
affecting the coverage thereunder.
(b) Upon completion of construction of the Minimum Improvements, and prior to the
Termination Date, the Developer shall maintain, or cause to be maintained, at its cost and expense,
and from time to time at the request of the Authority shall furnish proof of the payment of premiums
on, insurance as follows:
(i) Insurance against loss and/or damage to the Minimum Improvements under
a policy or policies covering such risks as are ordinarily insured against by similar
businesses, including (without limiting the generality of the foregoing) fire, extended
•
coverage, vandalism and malicious mischief, heating system explosion, water damage,
demolition cost, debris removal, collapse and flood, in an amount not less than the full
insurable replacement value of the Minimum Improvements or the Minimum Market Value,
whichever is greater. No policy of insurance shall be so written that the proceeds thereof
will produce less than the minimum coverage required by the preceding sentence,by reason
of coinsurance provisions or otherwise, without the prior consent thereto in writing by the
Authority. The term "full insurable replacement value" shall mean the actual replacement •
cost of the Minimum Improvements and shall be determined from time to time at the request
of the Authority, but not more frequently than once every three years, by an insurance
consultant or insurer, selected and paid for by the Developer and approved by the Authority;
and
(ii) Such other insurance, including worker's compensation insurance respecting
all employees of the Developer, in such amount as is customarily carried by like
organizations engaged in like activities of comparable size and liability exposure; provided
that the Developer may be self-insured with respect to all or any part of its liability for
worker's compensation.
Section 6.2. Evidence of Insurance. All insurance required in this Article VI shall be taken
out and maintained in responsible insurance companies selected by the Developer which are
authorized under the laws of Minnesota to assume the risks covered thereby. The Developer agrees
to deposit annually with the Authority copies of policies evidencing all such insurance, or a
certificate or certificates or binders of the respective insurers stating that such insurance is in force
and effect. Unless otherwise provided in this Article VI, each policy shall contain a provision that
the insurer shall not cancel nor materially modify it without giving written notice to the Developer
and the Authority at least thirty(30)days before the cancellation or modification becomes effective.
Not less than fifteen (15) days prior to the expiration of any policy, the Developer shall furnish the
Authority evidence satisfactory to the Authority that the policy has been renewed or replaced by
another policy conforming to the provisions of this Article VI, or that there is no necessity therefor •
under the terms of this Agreement. In lieu of separate policies,the Developer may maintain a single
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• policy, blanket or umbrella policies, or a combination thereof, having the coverage required herein,
in which event the Developer shall deposit with the Authority a certificate or certificates of the
respective insurers as to the amount of coverage in force upon the Minimum Improvements.
ARTICLE VII
Collection of Taxes; Assessment Agreement;
Reimbursement of Increment
Section 7.1. Taxes. The Developer agrees that prior to the Termination Date: (1) it will not
seek administrative or judicial review of the applicability of any tax statute determined by any Tax
Official to be applicable to the Minimum Improvements or the Development Property or raise the
inapplicability of any such tax statute as a defense in any proceedings, including delinquent tax
proceedings; (2) it will not seek administrative or judicial review of the constitutionality of any tax
statute determined by any Tax Official to be applicable to the Minimum Improvements or the
Development Property or raise the unconstitutionality of any such tax statute as a defense in any
proceedings, including delinquent tax proceedings; (3) it will not cause a reduction in the Minimum
Market Value paid in respect of the Development Property or the Minimum Improvements through:
(a) willful destruction of the Minimum Improvements or any part thereof;
(b) willful refusal to reconstruct damaged or destroyed property pursuant to section 4.6
• of this Agreement;
(c) a request to the County assessor to reduce the Minimum Market Value of all or any
portion of the Minimum Improvements;
(d) a petition to the board of equalization of the County to reduce the Minimum Market
Value of all or any portion of the Development Property;
(e)a petition to the board of equalization of the State or the commissioner of revenue of
the State to reduce the Minimum Market Value of all or any portion of the Development Property;
(f) an action in a district court of the State or the tax court of the State seeking a
reduction in the Minimum Market Value of the Development Property;
(g) an application to the commissioner of revenue of the State or to any local taxing
jurisdiction requesting an abatement of real property taxes;
(h) any other proceedings, whether administrative, legal or equitable, with any
administrative body within the County or the State or with any court of the State or the federal
government;or
(i) a transfer of the Development Property or Minimum Improvements, or any part
• thereof,to an entity exempt from the payment of real property taxes under State law.
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The Developer shall not, prior to the Termination Date, apply for a deferral or abatement of •
property tax on the Development Property or the Minimum Improvements.
Section 7.2. Assessment Agreements. At the time of execution of this Agreement, the
Authority and the Developer shall execute two Assessment Agreements in the form attached hereto
as Exhibit D. The first Assessment Agreement shall relate to the portion of the Development
Property to be retained by the Developer and shall specify a Minimum Market Value of$5,045,000.
The second Assessment Agreement shall relate to the Home Depot Property and shall specify a
Minimum Market Value of$5,775,000. The Minimum Market Values specified in the Assessment
Agreements shall be effective as of January 2,200_for taxes payable beginning in 200_through the
Termination Date, notwithstandinganyfailure to complete the Minimum Improvements or Home
P
Depot store by said date.
(b) The Assessment Agreements shall be substantially in the form attached hereto as
Exhibit B. Nothing in the Assessment Agreements shall limit the discretion of the Assessor to
assign market values to the Development Property, Minimum Improvements and Home Depot
Property in excess of such Assessor's Minimum Market Values nor prohibit the Developer from
seeking through the exercise of legal or administrative remedies a reduction in such market values
for property tax purposes; provided, however,that the Developer shall not seek a reduction of such
market values below the Assessor's Minimum Market Value set forth in the Assessment
Agreements in any year so long as such Assessment Agreement shall remain in effect. The
Assessment Agreements shall remain in effect until the Termination Date; provided that if at any
time before the Termination Date the Assessment Agreements are found to be terminated or
unenforceable by any Tax Official or court of competent jurisdiction, the Minimum Market Values
described in this Section 7.2 shall remain an obligation of the Developer or its successors and
assigns (whether or not such value is binding on the Assessor), it being the intent of the parties that
the obligation of the Developer to maintain, and not seek reduction of,the Minimum Market Values
specified in this Section 7.2 is an obligation under this Agreement as well as under the Assessment
Agreements, and is enforceable by the Authority against the Developer, its successors and assigns in
accordance with the terms of this Agreement.
Section 7.3. Right to Collect Delinquent Taxes. The Developer acknowledges that the
Authority is providing substantial aid and assistance to the Developer through the provision of
certain public improvements without cost to the Developer and the reimbursement of the Developer
for certain site preparation costs. The Developer understands that the real estate taxes on the
Development Property and the Minimum Improvements must be promptly and timely paid. To that
end,the Developer agrees for itself, its successors and assigns,in addition to the obligation pursuant
to statute to pay real estate taxes, that the Developer is also obligated at all times prior to the
Termination Date by reason of this Agreement to pay before delinquency all real estate taxes
assessed against the Development Property and the Minimum Improvements. The Developer
acknowledges that at all times prior to the Termination Date this obligation creates a contractual
right on behalf of the Authority to sue the Developer or its successors and assigns to collect
delinquent real estate taxes and any penalty or interest thereon and to pay over the same as a tax
payment to the County auditor. In any such suit, the Authority shall also be entitled to recover its
reasonable out-of-pocket costs, expenses and attorney fees. •
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• Section 7.4. Use of Tax Increments. The Authority shall be free to use any tax increment
received from the Minimum Improvements for any purpose for which such increments may
lawfully be used under the TIF Plan and pursuant to the provisions of State law, and the Authority
shall have no obligations to the Developer with respect to the use of such increment.
ARTICLE VIII
Prohibition Against Sale; Encumbrances
Section 8.1. Prohibition Against Sale of Minimum Improvements. (a) The Developer
represents and agrees that its use of the Development Property and its other undertakings pursuant
to the Agreement, are, and will be, for the purpose of development of the Development Property
and not for speculation in land holding. The Developer further recognizes that in view of the
importance of the construction of the Minimum Improvements on the Development Property to the
general welfare of Cottage Grove and the substantial assistance that has been made available by the •
Authority for the purpose of making such Development possible, the fact that any act or transaction
involving or resulting in a significant change in the identity of the Developer is of particular concern
to the Authority. The Developer further recognizes that it is because of such qualifications and
identity that the Authority is entering into the Agreement with the Developer, and, in so doing, is
further willing to accept and rely on the obligations of the Developer for the faithful performance of
• all undertakings and covenants hereby by it to be performed. For the foregoing reasons, the
Developer represents and agrees that, prior to the issuance of the Certificate of Completion, there
shall be no Sale of the Development Property or the Minimum Improvements by the Developer nor
shall the Developer suffer any such Sale to be made, without the prior written approval of the
Authority. Notwithstanding anything herein to the contrary, conveyance of the Home Depot
Property to another entity for construction of a Home Depot store shall not constitute a Sale under
this Article VIII.
(b) In the event the Developer, upon transfer or assignment of the Development
Property or the Minimum Improvements, seeks to be released from its obligations under this
Agreement as to the portions of the Development Property or Minimum Improvements that is
transferred or assigned, the Authority shall be entitled to require, as conditions to any such release
that:
(i) Any proposed transferee shall have the qualifications and financial
responsibility, in the reasonable judgment of the Authority,necessary and adequate to fulfill
the obligations undertaken in this Agreement by the Developer as to the portion of the
Development Property or Minimum Improvements to be transferred;
(ii) Any proposed transferee, by instrument in writing reasonably satisfactory to
the Authority and in form recordable among the land records, shall, for itself and its
successors and assigns, and expressly for the benefit of the Authority, have expressly
• assumed all of the obligations of the Developer under this Agreement and the Assessment
Agreement thereafter arising as to the portion of the Development Property or Minimum
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Improvements to be transferred and agreed to be subject to all the conditions and restrictions •
to which the Developer is subject as to such portion;.provided, however, that the fact that
any transferee of, or any other successor in interest whatsoever to, the Development
Property, or Minimum Improvements, shall not, for whatever reason, have assumed such
obligations or so agreed, shall not (unless and only to the extent otherwise specifically
provided in this Agreement or agreed to in writing by the Authority) deprive the Authority
of any rights or remedies or controls with respect to the Development Property or any part
thereof or the construction of the Minimum Improvements; it being the intent of the parties
as expressed in this Agreement that (to the fullest extent permitted at law and in equity and
excepting only in the manner and to the extent specifically provided otherwise in this
Agreement) no transfer of, or change with respect to, ownership in the Development
Property or any part thereof or Minimum Improvements, or any interest therein, however
consummated or occurring, and whether voluntary or involuntary, shall operate, legally or
practically, to deprive or limit the Authority of or with respect to any rights or remedies on
controls provided in or resulting from this Agreement or the Assessment Agreement with
respect to the Development Property and the Minimum Improvements that the Authority
would have had,had there been no such transfer or change. Except as otherwise provided in •
this Agreement, in the absence of specific written agreement by the Authority to the
contrary,no such transfer or approval by the Authority thereof shall be deemed to relieve the
Developer, or any other party bound in any way by this Agreement or otherwise with
respect to the construction of the Minimum Improvements, from any of its obligations with
respect thereto; and
(iii) Any and all instruments and other legal documents involved in effecting the •
transfer of any interest in this Agreement, the Assessment Agreement, the Development
Property or the Minimum Improvements governed by this Article VIII, shall be in a form
reasonably satisfactory to the Authority.
In the event the foregoing conditions are satisfied, the Developer shall be released from its
obligation under this Agreement and the Assessment Agreement, as to the portion of the
Development Property or the Minimum Improvements that is transferred, assigned or otherwise
conveyed.
(c) The Developer may transfer or assign any portion of the Development Property or
the Minimum Improvements or the Developer's interest in this Agreement without the consent of
the Authority (i) at any time with respect to a transfer or assignment to any person or entity that is
affiliated with the Developer or its shareholders or (ii) after issuance of the Certificate of
Completion for the Minimum Improvements with respect to a transfer or assignment to any other
person or entity provided that the transferee or assignee is bound by all the Developer's obligations
remaining under this Agreement, including compliance with the Business Subsidy Act, and under
the Assessment Agreement. The Developer shall submit to the Authority written evidence of any
such transfer or assignment, including the transferee or assignee's express assumption of the
Developer's obligations under this Agreement and the Assessment Agreement. If the Developer
fails to provide such evidence of transfer and assumption,the Developer shall remain bound by all it
obligations under this Agreement and the Assessment Agreement. •
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• Section 8.2. Limitation Upon Encumbrance of Development Property. Prior to the issuance
of the Certificate of Completion, the Developer agrees not to engage in any financing creating any
mortgage or other encumbrance or lien upon the Development Property or the Minimum
Improvements, whether by express agreement or operation of law, or suffer any encumbrance or
lien to be made on or attached to the Development Property or the Minimum Improvements, other
than the liens or encumbrances directly and solely related to construction of the Minimum
Improvements and approved by the Authority, which approval shall not be withheld or delayed
unreasonably if the Authority determines that such lien or encumbrance will not threaten its security
in the Development Property or the Minimum Improvements.
ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined. Each and every one of the following shall be an
Event of Default under this Agreement:
(a) Failure by the Developer to obtain fee title to the remainder of the Development
Property by
(b) Failure by the Developer to commence and complete construction of the Minimum
Improvements pursuant to the terms, conditions and limitations of Article IV of this Agreement,
• including the timing thereof,unless such failure is caused by an Unavoidable Delay;
(c) Failure by the Developer to pay real estate taxes or special assessments on the
Development Property and Minimum Improvements as they become due;
(d) Appeal or challenge by the Developer or its successors or assigns of the Minimum
Market Values prior to the Termination Date;
(e) Sale of the Development Property or the Minimum Improvements or any part
thereof by the Developer in violation of Sections 7.1 or 8.1 of this Agreement and without the prior
written permission by the Authority;
(f) If the Developer shall file a petition in bankruptcy, or shall make an assignment for
the benefit of its creditors or shall consent to the appointment of a receiver;or
(g) Failure by either party to observe or perform any material covenant, condition,
obligation or agreement on its part to be observed or performed under this Agreement or the
Assessment Agreement.
Section 9.2. Remedies on Default. Whenever any Event of Default referred to in section
9.1 of this Agreement occurs, the non-defaulting party may take any one or more of the following
actions after providing 30 days written notice to the defaulting party of the Event of Default, but
only if the Event of Default has not been cured within said 30 days or, if the Event of Default is by
its nature incurable within 30 days, the defaulting party does not provide assurances to the non-
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•
defaulting party reasonably satisfactory to the non-defaulting party that the Event of Default will be •
cured and will be cured as soon as reasonably possible:
(a) Suspend its performance under this Agreement until it receives assurances from the
defaulting party,deemed adequate by the non-defaulting party,that the defaulting party will cure its
default and continue its performance under this Agreement;
(b) Terminate or rescind-this Agreement;
(c) If the default occurs prior to completion of the Minimum Improvements, the
Authority may withhold the Certificate of Completion;
(d) Enforce the Assessment Agreements;
(e) Enforce the provisions of this Agreement relating to the Business Subsidy Act; and
(f) Take whatever action, including legal or administrative action, which may appear •
necessary or desirable to the non-defaulting party to collect any payments due under this
Agreement, or to enforce performance and observance of any obligation, agreement, or covenant of
the defaulting party under this Agreement or the Assessment Agreement.
Section 9.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the •
parties is intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such right or power or shall
be construed to be a waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. In order to entitle the Authority or the Developer to
exercise any remedy reserved to it, it shall not be necessary to give notice, other than such notice as
may be required in Article X of this Agreement.
Section 9.4. No Additional Waiver Implied by One Waiver. In the event any covenant or
agreement contained in this Agreement should be breached by either party and thereafter waived by
the other party, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent,previous or subsequent breach hereunder.
ARTICLE X
Additional Provisions
Section 10.1. Conflict of Interests; Representatives Not Individually Liable. No officer,
official,or employee of the Authority shall have any personal financial interest, direct or indirect, in
this Agreement, nor shall any such officer, official, or employee participate in any decision relating
to the Agreement which affects his or her personal financial interests, directly or indirectly. No
officer, official, or employee of the Authority shall be personally liable to the Developer, or any •
successor in interest, in the event of any default or breach or for any amount which may become due
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• or on any obligation under the terms of this Agreement. No officer, official or employee of the
Developer shall be personally liable to the Authority or any successor in interest in the event of any
default or breach or for any amount which may become due or on any obligation under the terms of
this Agreement.
Section 10.2. Equal Employment Opportunity. The Developer, for itself and its successors
and assigns, agrees that during the construction of the Minimum Improvements provided for in this
Agreement, it will comply with all applicable equal employment and nondiscrimination laws and
regulations.
Section 10.3. Restrictions on Use. The Developer, for itself and its successors and assigns,
agrees to devote the Property and Minimum Improvements only to such land use or uses as may be
permissible under the City's land use regulations.
Section 10.4. Notices and Demands. Except as otherwise expressly provided in this
Agreement, any notice, demand, or other communication under the Agreement or any related
document by either party to the other shall be sufficiently given or delivered if it is dispatched by •
registered or certified United States mail, postage prepaid, return receipt requested, or delivered
personally to:
(a) in the case of the Authority: 7516 80th Street South
Cottage Grove MN 55016
• Attn: EDA Executive Director
(b) in the case of the Developer:
or at such other address with respect to either such party as that party may, from time to time,
designate in writing and forward to the other as provided in this section 10.4.
Section 10.5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 10.6. Disclaimer of Relationships. The Developer acknowledges that nothing
contained in this Agreement nor any act by the Authority or the Developer shall be deemed or
construed by the Developer or by any third person to create any relationship of third-party
beneficiary, principal and agent, limited or general partner, or joint venture between the Authority
and the Developer.
•
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•
IN WITNESS WHEREOF,the Authority and the Developer have caused this Agreement to
be duly executed in their names and behalves on or as of the date first above written.
COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
By
Its President
By
Its Executive Director
STATE OF MINNESOTA )
) SS
COUNTY OF )
The foregoing instrument as acknowledged before me this day of July, 2001, by •
and , president and executive director, respectively, of
the Cottage Grove Economic Development Authority, a public body corporate and politic under the
laws of Minnesota,on behalf of the Economic Development Authority.
Notary Public
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. GROVE RAINBOW LIMITED PARTNERSHIP
By
Its
STATE OF MINNESOTA )
)ss
COUNTY OF )
The foregoing instrument was executed this day of , 2001, by
, the of Grove Rainbow Limited Partnership, a
Minnesota limited partnership.
Notary Public
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EXHIBIT A •
LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
The Development Property is located in Washington County, Minnesota, and is legally described as
follows:
[to be completed]
•
•
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• EXHIBIT B
LIST OF PRELIMINARY PLAN DOCUMENTS
The Minimum Improvements shall be constructed in accordance with the following preliminary
plan documents:
[to be completed]
•
•
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•
•
EXHIBIT C
FORM OF
CERTIFICATE OF COMPLETION
The undersigned hereby certifies that all construction of the Minimum Improvements
specified to be done and made by Grove Rainbow Limited Partnership been completed and the
covenants and conditions in the Contract for Private Development have been performed by Grove
Rainbow Limited Partnership, and the County Recorder in Washington County, Minnesota, is
hereby authorized to accept for recording and to record the filing of this instrument, to be a
conclusive determination of the satisfactory termination of the covenants and conditions relating to
completion of the Minimum Improvements.
Dated: , COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
By:
Its President
By: •
Its Executive Director
STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument as acknowledged before me this day of , 2001,
by and , the president and executive director,
respectively, of the Cottage Grove Economic Development Authority, a public body corporate and
politic,on behalf of the Economic Development Authority.
Notary Public
•
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•
EXHIBIT D
FORM OF
ASSESSMENT AGREEMENT
and
ASSESSOR'S CERTIFICATION
By and among
• THE COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY
and
GROVE RAINBOW LIMITED PARTNERSHIP
and
ASSESSOR FOR WASHINGTON COUNTY,MINNESOTA
This Document was drafted by:
KENNEDY& GRAVEN,Chartered
470 Pillsbury Center
Minneapolis,Minnesota 55402
(612)337-9300
•
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THIS ASSESSMENT AGREEMENT, dated as of this day2001, by
of
and between the Cottage Grove Economic Development Authority, a public body corporate and •
politic (the "Authority") and Grove Rainbow Limited Partnership, a Minnesota limited partnership
(the"Developer").
WITNESSETH:
WHEREAS,on or before the date hereof,the Authority and the Developer have entered into
a Contract for Private Development (the "Development Agreement") pursuant to which the
Authority will convey to the Developer certain real property in Washington County, Minnesota,
which property is legally described on Exhibit A hereto, (the"Property"); and
WHEREAS, pursuant to the Development Agreement, the Developer will redevelop an
existing shopping center containing approximately square feet (the "Minimum
Improvements")on the Property; and
WHEREAS, the Authority and Developer desire to establish a minimum market value for
the Property and the Minimum Improvements to be constructed thereon, pursuant to Minnesota
Statutes, section 469.177, Subd. 8; and
WHEREAS, the Authority and the Assessor for Washington County, Minnesota have
reviewed the plans and specifications for the Minimum Improvements which the Developer has
agreed to construct or cause to be constructed on the Property pursuant to the Development •
Agreement.
NOW, THEREFORE, the parties to this Assessment Agreement, in consideration of the
promises, covenants and agreements made herein and in the Development Agreement by each to the
other,do hereby agree as follows:
1. The Minimum Market Value for the Property with the Minimum Improvements
shall be $5,045,000. The parties agree that this Minimum Market Value shall be placed against the
Property as of January 2, 200_, for taxes payable beginning in 200_, notwithstanding any failure to
complete construction of such Minimum Improvements by that date.
2. The Minimum Market Value herein established shall be of no further force and
effect and this Assessment Agreement shall terminate on the Termination Date. The Termination
Date will occur when the Authority's TIF District No. 1-12 is decertified,which cannot be later than
25 years after receipt by the Authority of the first tax increment.
3. This Assessment Agreement shall be promptly recorded by the Developer with a
copy of Minnesota Statutes, section 469.177, Subd. 8, set forth in Exhibit B hereto. The Developer
shall pay all costs of recording this Assessment Agreement.
4. Neither the preambles nor the provisions of this Assessment Agreement are intended
to, nor shall they be construed as, modifying the terms of the Development Agreement. Unless the •
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context indicates clearly to the contrary,the terms used in this Assessment Agreement shall have the
•
same meaning as the terms used in the Development Agreement.
5. This Assessment Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
6. Each of the parties warrants and represents that it has authority to enter into this
Assessment Agreement and to take all actions required of it and has taken all actions necessary to
authorize the execution and delivery of this Assessment Agreement.
7. In the event that any provision of this Assessment Agreement is held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
8. The parties hereto agree that they will, from time to time, execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, such supplements, amendments and
modifications hereto, and such further instruments as may reasonably be required for correcting any
inadequate, or incorrect, or amended description of the Property, or for carrying out the expressed
intention of this Assessment Agreement.
9. Except as provided in Section 8 hereof, this Assessment Agreement may not be
amended nor any of its terms modified except by a writing authorized and executed by all parties
hereto.
• 10. This Assessment Agreement may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall constitute one and the same
instrument.
11. This Assessment Agreement shall be governed by and construed in accordance with
the laws of Minnesota.
•
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•
COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
By
Its President
By
Its Executive Director
STATE OF MINNESOTA )
)SS
COUNTY OF )
The foregoing instrument as acknowledged before me this day of , 2001,
by and ,president and executive director,respectively,of
the Cottage Grove Economic Development Authority, a public body corporate and politic under the •
laws of Minnesota, on behalf of the Economic Development Authority.
Notary Public
•
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. GROVE RAINBOW LIMITED
PARTNERSHIP
By
Its
STATE OF MINNESOTA )
)ss
COUNTY OF )
The foregoing instrument was executed this day of , 2001, by
, the of Grove Rainbow Limited Partnership, a
Minnesota limited partnership.
Notary Public
•
•
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D-5
CERTIFICATION BY ASSESSOR •
The undersigned, having reviewed the plans and specifications for the improvements to be
constructed and the market value assigned to the land upon which the improvements are to be
constructed, and being of the opinion that the minimum market value contained in the foregoing
Assessment Agreement appears reasonable,hereby certifies as follows: The undersigned Assessor,
being legally responsible for the assessment of the described property as Washington County
Assessor, hereby certifies that the market value assigned to such land and improvements beginning
on January 1,200_shall be not less than$5,045,000 until termination of this Agreement.
Assessor for Washington County,Minnesota
STATE OF MINNESOTA )
)ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2001 by ,the Assessor for Washington County,Minnesota.
•
Notary Public
•
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• EXHIBIT A TO
ASSESSMENT AGREEMENT
The Property is legally described as follows:
[to be completed]
•
•
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EXHIBIT B TO .
• ASSESSMENT AGREEMENT
Section 469.177, subd. 8. Assessment Agreements. An authority may enter into a written
assessment agreement with any person establishing a minimum market value of land, existing
improvements, or improvements to be constructed in a district, if the property is owned or will be
owned by the person. The minimum market value established by an assessment agreement may be
fixed, or increase or decrease in later years from the initial minimum market value. If an agreement
is fully executed before July 1 of an assessment year, the market value as provided under the
agreement must be used by the county or local assessor as the taxable market value of the property
for that assessment. Agreements executed on or after July 1 of an assessment year become effective
for assessment purposes in the following assessment year. An assessment agreement terminates on
the earliest of the date on which conditions in the assessment agreement for termination are
satisfied, the termination date specified in the agreement, or the date when tax increment is no
longer paid to the authority under section 469.176, subdivision 1. The assessment agreement shall
be presented to the county assessor, or city assessor having the powers of the county assessor, of the
jurisdiction in which the tax increment financing district and the property that is the subject of the
agreement is located. The assessor shall review the plans and specifications for the improvements
to be constructed, review the market value previously assigned to the land upon which the
improvements are to be constructed and, so long as the minimum market value contained in the
assessment agreement appears, in the judgment of the assessor, to be a reasonable estimate, shall
execute the following certification upon the agreement:
The undersigned assessor, being legally responsible for the assessment of the above •
described property, certifies that the market values assigned to the land and improvements are
reasonable.
The assessment agreement shall be filed for record and recorded in the office of the
county recorder or the registrar of titles of each county where the real estate or any part thereof is
situated. After the agreement becomes effective for assessment purposes, the assessor shall
value the property under section 273.11, except that the market value assigned shall not be less
than the minimum market value established by the assessment agreement. The assessor may
assign a market value to the property in excess of the minimum market value established by the
assessment agreement. The owner of the property may seek, through the exercise of
administrative and legal remedies, a reduction in market value for property tax purposes, but no
city assessor, county assessor, county auditor, board of review, board of equalization,
commissioner of revenue, or court of this state shall grant a reduction of the market value below
the minimum market value established by the assessment agreement during the term of the
agreement filed of record regardless of actual market values which may result from incomplete
construction of improvements, destruction, or diminution by any cause, insured or uninsured,
except in the case of acquisition or reacquisition of the property by a public entity. Recording an
assessment agreement constitutes notice of the agreement to anyone who acquires any interest in
the land or improvements that is subject to the assessment agreement, and the agreement is
binding upon them.
•
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• EXHIBIT E
Legal Description of Home Depot Property
[to be completed]
•
•
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EXHIBIT F •
List of Facade Rehabilitation Plans
[to be completed]
•
•
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EXHIBIT G DRAFT
7.20.01
CONTRACT
FOR
PRIVATE DEVELOPMENT
By and Between
• COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY
and
r
' :i
This document drafted by: \ Q n
KENNEDY&GRAVEN,CHARTERED U �- t
470 Pillsbury Center (J I
Minneapolis,MN 55402 S-0
(612)337-9300
4110
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TABLE OF CONTENTS 111/
PAGE
PREAMBLE 1
ARTICLE I
Definitions
Section 1.1. Definitions 1
Section 1.2. Exhibits 3
Section 1.3. Rules of Interpretation 4
ARTICLE II
Representations and Warranties
Section 2.1. Representations by the Authority 4
Section 2.2. Representations and Warranties by the Developer 4
ARTICLE III
Acquisition and Conveyance of Development Property;Public Improvements
Section 3.1. Acquisition of Development Property;Public Improvements 5
Section 3.2. Conveyance of the Development Property 5 •
Section 3.3. Condition of Title 6
Section 3.4. Financing 6
Section 3.5. Testing 7
Conditions Precedent to Conveyance Section 3.6. 7
Section 3.7. Closing;Delivery and Recording;Brokers 8
Section 3.8. Improvements to Property;Plat 8
ARTICLE IV
Construction of Minimum Improvements
Section 4.1. Preliminary Plans;Construction of Minimum Improvements 9
Section 4.2. Construction Plans 9
Section 4.3. Commencement and Completion of Construction 10
Section 4.4. Certificate of Completion and Release of Forfeiture 10
Section 4.5 Reconstruction of Improvements 10
ARTICLE V
Business Subsidy Act Requirements
Section 5.1. Compliance with Business Subsidy Provisions 11
Section 5.2. Job and Wage Goals 12
Section 5.3. Remedies 12 .
Section 5.4. Reports 13
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•
ARTICLE VI
Insurance
Section 6.1. Required Insurance 13
Section 6.2 Evidence of Insurance 14
ARTICLE VII
Collection of Taxes; Assessment Agreement;
Reimbursement of Increment
Section 7.1. Taxes 15
Section 7.2. Assessment Agreement 16
Section 7.3 Right to Collect Delinquent Taxes 16
Section 7.4 Use of Tax Increments 16
ARTICLE VIII
Prohibition Against Sale; Encumbrances
Section 8.1 Prohibition Against Sale of Minimum Improvements 17
Section 8.2 Limitation Upon Encumbrance of Development Property 17
• ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined 17
Section 9.2. Remedies on Default 18
Section 9.3. Revesting Interest in the Authority Upon Happening of Event of Default
Subsequent to Conveyance to Developer 19
Section 9.4. No Remedy Exclusive 20
Section 9.5. No Additional Waiver Implied by One Waiver 20
ARTICLE X
Additional Provisions
Section 10.1. Conflict of Interests;Representatives Not Individually Liable 20
Section 10.2. Equal Employment Opportunity 20
Section 10.3. Restrictions on Use 20
Section 10.4. Provisions Not Merged With Deed 21
Section 10.5. Notices and Demands 21
Section 10.6. Counterparts 21
Section 10.7. Disclaimer of Relationships 21
TESTIMONIUM 22
SIGNATURES 22
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EXHIBIT A LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
EXHIBIT B FORM OF QUIT CLAIM DEED
EXHIBIT C FORM OF CERTIFICATE OF COMPLETION AND RELEASE OF
FORFEITURE
EXHIBIT D FORM OF ASSESSMENT AGREEMENT
•
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• CONTRACT FOR PRIVATE DEVELOPMENT
THIS AGREEMENT, made this day of July, 2001, by and between the Cottage
Grove Economic Development Authority, a public body corporate and politic under the laws of
Minnesota, having its principaloffice at 7516 80th Street South, Cottage Grove, Minnesota 55016-
3195 (the"Authority")a'"� 5a (the"Developer").
WITNESSETH:
WHEREAS, the Authority created Development District No. 1 (the "Development
District") and adopted a program (the "Program") for it, all in conformance with Minnesota
Statutes, Sections 469.124 through 469.134, the Authority Development Districts Act (the "Act");
and
WHEREAS, the Authority will establish tax increment financing district No. 1-12 ("TIF
District No. 1-12")and will adopt a tax increment financing(the"TIF Plan")related thereto; and
WHEREAS, in order to achieve the objectives of the Program and the TIF Plan, the
Authority is prepared to acquire and write down the cost of the Development Property, as
hereinafter defined, construct certain public improvements and perform certain site improvements
benefiting the Development Property and otherwise assist the Developer in order to bring about
development of the Development Property in accordance with the Program, the TIF Plan and this
Agreement; and
WHEREAS, the Authority believes that the development of land within TIF District No. 1-
12 pursuant to this Agreement and the fulfillment generally of this Agreement are in the vital and
best interests of Cottage Grove and the health, safety, morals, and welfare of its residents, and in
accord with the public purposes and provisions of the applicable state and local laws and
requirements under which the Development District has been undertaken.
NOW, THEREFORE, in consideration of the covenants and the mutual obligations
contained herein, the Authority and the Developer hereby covenant and agree with the other as
follows:
ARTICLE I
Definitions
Section 1.1. Definitions. In this Agreement the following terms shall have the meanings
given unless a different meaning clearly appears from the context:
"Act"means the Authority Development Districts Act,Minnesota Statutes, sections 469.124
through 469.134, as amended.
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"Agreement" means this Agreement, as the same May be from time to time modified,
amended,or supplemented.
"Assessment Agreement"means the agreement, in the form contained in Exhibit E attached
hereto, among the Developer, the Authority and the Assessor and entered into pursuant to Article
VII of this Agreement, which establishes a Minimum Market Value for the Development Property
and the Minimum Improvements.
"Assessor"means the assessor for Washington County,Minnesota.
"Authority"means the Cottage Grove Economic Development Authority.
"Business Subsidy Act"means Minnesota Statutes, sections 116J.993 through 116J.995 (the
`Business Subsidy Act").
"Certificate of Completion and Release of Forfeiture" means the certificate, in the form
contained in Exhibit D attached hereto,which will be provided to the Developer pursuant to Article
IV of this Agreement.
"City" means the city of Cottage Grove, a municipal corporation under the laws of
Minnesota. •
"Construction Plans"means the final plans for construction of the Minimum Improvements
to be submitted by the Developer and approved by the Authority pursuant to section 4.2 of this
Agreement.
"County"means Washington County,Minnesota.
"Developer"meanC:)*
"Development Property" means the real property upon which the Minimum Improvements
will be constructed,which property is legally described in Exhibit A attached hereto.
"Development Property Deed" means the quit claim deed in the form attached hereto as
Exhibit B,by which the Authority will convey the Development Property to the Developer.
"EDA Act"or"Economic Development Authority Act"means Minnesota Statutes, sections
469.090 through 469.1081, as amended.
"Event of Default"means an action by the Developer or the Authority listed in Article IX of
this Agreement.
"Minimum Improvements"means a retail facility containing approximately 116,000 square
feet constructed in accordance with the Construction Plans submitted to and approved by the411
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• Authority. After completion of the Minimum Improvements, the term shall mean the Development
Property as improved by the Minimum Improvements.
"Minimum Market Value" means a market value for real estate tax purposes of at least
$4,500,000 with respect to the Development Property and Minimum Improvements as of January 2,
200 for taxes payable beginning in 200_through the Termination Date.
"Preliminary Plans" means, collectively, the plans, drawings and specifications for the
construction of the Minimum Improvements which are to be submitted by the Developer pursuant
to section 4.1 of this Agreement.
"Sale" means any sale, conveyance, lease, exchange, forfeiture other transfer of the
Developer's interest in the Minimum Improvements or the Development Property, whether
voluntary or involuntary.
"State"means the state of Minnesota.
"Tax Increment Financing Act" or "TIF Act" means Minnesota Statutes, sections 469.174
through 469.179, as amended.
"Tax Increment Financing District"or"TIF District"means the Authority's TIF District No.
1-12.
• "Tax Increment Financing Plan" or "TIF Plan" means the tax increment plan for TIF
District No. 1-12.
"Tax Official"means the Assessor, County auditor, County or State board of equalization,
the commissioner of revenue of the State, or any State or federal district court, the tax court of the
State,or the State supreme court.
"Termination Date"means the date the TIF District terminates,which is expected to be nine
years after receipt of the first increment or 11 years after the date of approval of the TIF Plan,
whichever occurs first.
"Unavoidable Delays" means delays which are the direct result of unanticipated adverse
weather conditions; strikes or other labor troubles; fire or other casualty to the Minimum
Improvements; litigation commenced by third parties which, by injunction or other similar judicial
action, directly results in delays; or, except those of the Authority reasonably contemplated by this
Agreement, any acts or omissions of any federal, State or local governmental unit which directly
result in delays in construction of the Minimum Improvements.
Section 1.2. Exhibits. The following exhibits are attached to and by reference made a part
of this Agreement:
Exhibit A. Legal description of the Development Property
• Exhibit B. Form of Quit Claim Deed
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Exhibit C. Form of Certificate of Completion and Release of Forfeiture •
Exhibit D. Form of Assessment Agreement
Section 1.3. Rules of Interpretation. (a) This Agreement shall be interpreted in accordance
with and governed by the laws of Minnesota.
(b) The words "herein" and "hereof' and words of similar import, without reference to
any particular section or subdivision, refer to this Agreement as a whole rather than any particular
section or subdivision hereof.
(c) References herein to any particular section or subdivision hereof are to the section or
subdivision of this Agreement as originally executed.
(d) Any titles of the several parts,articles and sections of this Agreement are inserted for
convenience and reference only and shall be disregarded in construing or interpreting any of its
provisions.
ARTICLE II
Representations and Warranties
Section 2.1. Representations by the Authority. The Authority makes the following •
representations as the basis for the undertakings on its part herein contained:
(a) The Authority is a public body corporate and politic under the laws of Minnesota.
The Authority has the power to enter into this Agreement and carry out its obligations hereunder.
(b) The persons executing this Agreement and related agreements and documents on
behalf of the Authority have the authority to do so and to bind the Authority by their actions.
(c) Development District No. 1 is a development district within the meaning of the Act
and was created,adopted and approved in accordance with the terms of the Act.
(d) TIF District No. 1-12 is a redevelopment tax increment financing district within the
meaning of the TIF Act.
(e) The Authority has received no notice or communication from any local, State or
federal official that the activities of the Developer or the Authority in the Development District may
be or will be in violation of any environmental law or regulation. The Authority is aware of no facts
the existence of which would cause it to be in violation of any local, State or federal environmental
law,regulation or review procedure.
Section 2.2. Representations and Warranties by the Developer. The Developer makes the
following representations as the basis for the undertakings on its part herein contained: .
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• (a) The Developer is a , duly organized and in good standing under
the laws of Minnesota and is not in violation of any provisions of its organizational documents. The
Developer has the power to enter into this Agreement and carry out its obligations hereunder. The
persons executing this Agreement and related agreements and documents on behalf of the
Developer have the authority to do so and to bind the Developer by their actions.
(b) In the event the Development Property is conveyed to the Developer, the Developer
will construct, operate and maintain the Minimum Improvements on the Development Property in
substantial accordance with the terms of this Agreement, the Program, the TIF Plan, the
Construction Plans and all local, State and federal laws and regulations, including, but not limited
to, environmental,zoning,building code and public health laws and regulations.
(c) The Developer will apply for and use its best efforts to obtain, in a timely manner,
all required permits, licenses and approvals, and will meet, in a timely manner, the requirements of
all applicable local, State and federal laws and regulations which must be obtained or met before the
Minimum Improvements may be lawfully constructed or used for their intended purpose.
(d) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of, the
terms, conditions or provisions or any restriction or any evidence of indebtedness, agreement or
instrument of whatever nature to which the Developer is now a party or by which it is bound, or
constitutes a default under any of the foregoing.
(e) The Developer would not be willing to construct the Minimum Improvements but
for the commitment by the Authority to grant the financial assistance outlined in this Agreement and
the use of tax increment for such assistance is essential to the Developer's ability to carry out its
obligations under this Agreement.
ARTICLE III
Acquisition and Conveyance of Development Property; Public Improvements
Section 3.1. Acquisition of Development PropeM. The Development Property is owned
by third parties and is not currently owned or controlled by the Authority. The Authority agrees to
use its best efforts to acquire the Development Property, including exercising its right to acquire the
Development Property through its or the City's power of eminent domain. After execution of the
Development Agreement and receipt of the Developer's earnest money deposit, the authority will
pursue acquisition of the Development Property by presenting purchase agreements to the owners of
the parcels or by initiating condemnation proceedings. The Authority agrees to use its best efforts
to obtain title to the Development Property by no later than
Section 3.2. Conveyance of the Development Property. In order to facilitate the financial
• feasibility of the development of the Development Property and in consideration of the Developer's
fulfillment of its covenants and obligations under this Agreement to construct the Minimum
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Improvements, and subject to the conditions precedent to closing outlined in Section 3.6 of this •
Agreement,the Authority agrees to sell the Development Property to the Developer for$1,153,251.
The Authority hereby acknowledges receipt of$ earnest money from the Developer.
The balance of $ for the Development Property shall be paid by the Developer at
closing. The Development Property is legally described in Exhibit A attached hereto. The
Authority agrees to convey title and possession of the Development Property to the Developer by
quit claim deed in the form attached hereto as Exhibit B. The Authority shall arrange for the
payment of all levied or pending special assessments prior to closing. The Developer and the
Authority agree to pro rate as of the date of closing any real property taxes for the Development
Property payable in the year of closing. The Developer agrees to pay all real estate taxes payable
with regard to the Development Property in the years after closing. The conveyance of the
Development Property and the Developer's use of the Development Property shall be subject to all
of the conditions, covenants, restrictions and limitations imposed bythis Agreement, the
P gr
-
Assessment Agreement and the DevelopmentProperty Deed. The conveyance of title to the
Development Property and the Developer's use of the Development Property shall also be subject to
the building and zoning laws and ordinances and all other City, State and federal laws and
regulation.
Section 3.3. Condition of Title. Within 30 days of the date of this Agreement or such later
date as may be required if the Authority acquires the Development Property through condemnation,
the Authority agrees to submit to the Developer an ALTA commitment for title insurance regarding
the Development Property. The Developer shall have 20 days after delivery of the commitment to
examine same and to make any objections concerning the condition of title regarding the .
Development Property. Objections to the condition of title shall be made in writing and addressed
to the Authority. Failure on the part of the Developer to make objections within 20 days shall
constitute a waiver of same and of the Developer's right to object to the condition of title. If the
Developer provides written objections to title,the Authority shall have 45 days thereafter to cure the
defects cited by the Developer or to inform the Developer in writing that the Authority cannot or
will not cure said defects. If there are no defects in title to which the Developer objects in writing or
the Developer fails to object in a timely manner or if the Authority cures the defects within the
prescribed period, the parties will proceed to closing. If there are defects in title to which the
Developer has objected in a timely manner and which the Authority cannot or will not cure, the
Developer may terminate this Agreement at its option within 10 days of notice from the Authority
of its inability or unwillingness to cure. The Authority shall have no obligation to cure any defects
in the title of the Development Property. If the Developer chooses to terminate this Agreement
pursuant to this Section 3.3, the Developer agrees to execute a quit claim deed regarding the
Development Property in favor of the Authority. Thereafter the parties shall have no further
obligation towards one another with regard to this Agreement or the Development Property. The
Developer may also choose to proceed to closing on the Development Property and take title subject
to the defect. Notwithstanding any other provision herein to the contrary, if the Developer proceeds
to closing within less than the time periods set forth herein for receipt of a commitment for title
insurance and objection to title defects,such action shall be deemed to be a waiver by the Developer
of its right to examine and object to the condition of title of the Development Property.
Section. 3.4. Financing. Before conveyance of the Development Property by the Authority, •
the Developer agrees to submit to the Authority evidence of a commitment for financing which is
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adequate,in the Authority's sole opinion, for the construction of the Minimum Improvements. If the
Authority finds that the financing complies with the terms of this Section 3.4 and is sufficiently
committed and adequate in amount to provide for the construction of the Minimum Improvements,
the Authority shall notify the Developer in writing of its approval. Such approval shall not be
unreasonably withheld. If the Authority rejects the evidence of financing as inadequate, it shall do
so in writing specifying the basis for the rejection and the Developer shall have 30 days thereafter to
submit a commitment for additional or alternate financing acceptable to the Authority. If the
Developer fails to submit a commitment for financing acceptable to the Authority within said period
of time or any additional period to which the Authority may agree, the Authority may notify the
Developer of its failure to comply with the requirement of this Section 3.4 and may terminate this
Agreement at its sole discretion.
Section 3.5. Testing. Following execution of this Agreement and within 30 days after the
Authority has obtained title to the Development Property, the Developer may notify the Authority
of its desire to undertake tests and inspections of the Development Property regarding the presence
of pollution, contamination or hazardous substances on the Development Property and the
suitability of the soils for the Developer's intended purposes, including the site grading performed •
by the Authority pursuant to section 3.8 of this Agreement. In the event that the Developer,
following such tests and inspections, determines in its sole judgment that the condition of the
Development Property is unsuitable for construction of the Minimum Improvements, the Developer
may terminate this Agreement and return the Development Property to its condition prior to
undertaking such tests and inspections. Regardless of whether the Developer avails itself of the
• right to conduct tests and inspections on the Development Property pursuant to this Section 3.5,
after closing the Authority shall have no obligation or liability to the Developer for any unsuitability
with respect to the soil conditions, site grading or the presence of any pollution, contamination or
hazardous substances on the Development Property. Notwithstanding any other provision herein to
the contrary, if the Developer proceeds to closing within less than the period of time allowed in this
Section 3.5 for testing, such action shall be deemed to be a waiver by the Developer of its right to
test on the Development Property.
Section 3.6. Conditions Precedent to Conveyance. Notwithstanding anything herein to the
contrary, the Authority shall not be obligated to convey the Development Property to the Developer
until the following conditions precedent have been satisfied:
(1) The Authority has obtained fee title to all of the parcels constituting the
Development Property;
(2) The Developer has submitted a commitment or other evidence of financing
which is adequate, in the Authority's sole discretion, to fully finance
construction of the Minimum Improvements;
(3) The Developer has submitted and the Authority has approved the
Preliminary Plans and Construction Plans;
• (4) The Developer has executed the Assessment Agreement in the form attached
hereto as Exhibit E; and
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i
(5) There has been no Event of Default on the part of the Developer which has
not been cured.
Section 3.7. Closing; Delivery and Recording: Brokers. (a) Subject to the substantial
satisfaction of all of the terms and conditions contained in this Agreement which must be satisfied
prior to the Authority's conveyance of the Development Property to the Developer, the Authority
shall execute and deliver the Development Property Deed to the Developer at closing. Closing shall
occur on or such other date to which the parties may agree. However,if closing has
not occurred by , either party may terminate this Agreement by notice to the other
in accordance with Section 9.4 of this Agreement. The Developer shall have possession of the
Development Property upon closing. Closing shall be at the offices of Kennedy & Graven,
Chartered, 470 Pillsbury Center,Minneapolis MN 55402 or such other location to which the parties
may agree. Prior to closing,the Authority shall submit to the Developer a copy of the Development
Property Deed and other closing documents for review. The Developer shall pay the Authority
$ for the Development Property at closing. The Development Property Deed
shall be in recordable form and shall be recorded among the County land records. The Developer •
shall be responsible for the cost of recording the Development Property Deed, this Agreement and
the Assessment Agreement. The Developer shall pay at closing all fees associated with obtaining
the commitment for title insurance for the Development Property and for the policy of title
insurance. The Developer and the Authority shall each pay at closing one-half of the closer's fee.
(b) The Authority represents to the Developer that it has not engaged the services of any .
broker or other agent in the sale of the Development Property and that there is no fee or commission
owing by the Authority with regards to the transaction. The Developer represents to the Authority
that it has not been represented by a broker or other agent in the purchase of the Development
Property and that the Developer shall be solely responsible for any fee or commission owing by the
Developer with regard to this transaction.
Section 3.8. Improvements to Property: Plat. (a) The City has constructed or will construct
public improvements for the benefit of the Development Property. These include storm sewer,
sanitary sewer and water improvements. Storm water from the Development Property will be
handled by a regional retention pond to be constructed by the Authority or the City on an adjacent
parcel. The Authority will grant to the Developer an easement to allow use of the regional pond by
the Development Property. The public improvements have been or will be constructed without
direct cost to the Developer and without special assessments levied against the Development
Property. ---\
(b) The City agrees to grade th Development Property p 'or to its sale to the
Developer. The grading will be rough-site grading designed to math the grade of the
Development Property to the grade of the adjacent public street. It is not intended to be final site
grading. Neither the City nor the Authority makes any representations or warranties to the
Developer or any other party regarng the site grading, nor shall th'City or the Authority be
liable for any damages to the Minimum Improvements which allegedly result fro the site
grading. •
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• (c) After acquisition of all the parcels constituting the Development Property, the
Authority agrees to request approval from the City for a plat of the Development Property. The
Developer agrees to cooperate with the Authority in platting the Development Property.
ARTICLE IV
Construction of Minimum Improvements
Section 4.1. Preliminary Plans; Construction of Minimum Improvements. (a) Within 30
days after execution of this Agreement, the Developer shall submit the Preliminary Plans to the
Authority. The Preliminary Plans shall include, at a minimum, a site plan of the Development
Property showing all improvements, a floor plan of the Minimum Improvements, and a sketch of
each façade of the Minimum Improvements. The Authority shall review the Preliminary Plans and
shall notify the Developer within 30 days whether they are acceptable or whether the Authority will
require modifications to the Preliminary Plans.
(b) The Developer agrees that it will construct the Minimum Improvements on the
Development Property in accordance with the Construction Plans and at all times prior to the
Termination Date will maintain, preserve and keep the Minimum Improvements or cause the
Minimum Improvements to be maintained, preserved and kept in good repair and condition. The
Developer recognizes that it is because the Developer has agreed to construct the Minimum
. Improvements that the Authority is willing to offer the assistance outlined in this Agreement. The
Developer acknowledges that, in addition to the requirements of this Agreement, construction of the
Minimum Improvements will necessitate compliance with other reviews and approvals by the
Authority and possibly other governmental agencies and agrees to submit all applications for and
pursue to their conclusion all other approvals needed prior to constructing the Minimum
Improvements.
Section 4.2. Construction Plans. (a) Within 60 days after execution of this Agreement, the
Developer shall submit dated Construction Plans to the Authority. The Construction Plans shall
provide for the construction of the Minimum Improvements and shall be in substantial conformity
with the Preliminary Plans and this Agreement. The Authority will approve the Construction Plans
if they (1) conform to the Preliminary Plans; (2) conform to all applicable federal, State and local
laws, ordinances, rules and regulations; (3) are adequate to provide for the construction of the
Minimum Improvements; (4) conform to the State building code; and (5) if there has occurred no
uncured Event of Default on the part of the Developer. No approval by the Authority shall relieve
the Developer of the obligation to comply with the terms of this Agreement, the terms of any
applicable federal, State and local laws, ordinances, rules and regulations in the construction of the
Minimum Improvements. No approval by the Authority shall constitute a waiver of an Event of
Default.
(b) If the Developer desires to make any change in the Construction Plans after their
approval by the Authority, including any change to the design or materials of the Minimum
• Improvements or any other change which would also require review or reapproval under any
applicable code, ordinance or regulation, the Developer shall submit the proposed change to the
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Authority for its approval. If the proposed change conforms to the requirements of this section 4.2 •
with respect to the original Construction Plans or is otherwise acceptable to the Authority, the
Authority shall approve the proposed change. Such change in the Construction Plans shall be
deemed approved by the Authority unless rejected, in whole or in part, by written notice by the
Authority to the Developer,setting forth in detail the reasons therefor. Such rejection shall be made
within ten(10)days after receipt of the written notice of such change from the Developer.
Section 4.3. Commencement and Completion of Construction. Subject to Unavoidable
Delays,the Developer shall commence construction of the Minimum Improvements no later than 60
days after closing. Subject to Unavoidable Delays, the Developer shall have substantially
completed the construction of the Minimum Improvements no later than . All
work with respect to the Minimum Improvements to be constructed or provided by the Developer
on the Development Property shall be in conformity with the Construction Plans. The Developer
shall make such reports to the Authority regarding construction of the Minimum Improvements as
the Authority deems necessary or helpful in order to monitor progress on construction of the
Minimum Improvements.
Section 4.4. Certificate of Completion and Release of Forfeiture. (a) After substantial
completion of the Minimum Improvements in accordance with the Construction Plans and all terms
P P
of this Agreement, the Authority will furnish the Developer with a Certificate of Completion and
Release of Forfeiture in the form of Exhibit C hereto. Such certification byAuthority the shall be a
conclusive determination of satisfaction and termination of the agreements and covenants in this
Agreement and in the Development Property Deed with respect to the obligations of the Developer •
to construct the Minimum Improvements and the dates for the beginning and completion thereof.
The Certificate of Completion and Release of Forfeiture shall only be issued after issuance of a
certificate of occupancy by the City.
(b) The Certificate of Completion and Release of Forfeiture provided for in this section
4.4 shall be in such form as will enable it to be recorded in the proper County office for the
recordation of deeds and other instruments pertaining to the Development Property. If the Authority
shall refuse or fail to provide such certification in accordance with the provisions of this section 4.4,
the Authority shall, within 30 days after written request by the Developer, provide the Developer
with a written statement, indicating in adequate detail in what respects the Developer has failed to
complete the Minimum Improvements in accordance with the provisions of the Agreement, or is
otherwise in default of a material term of this Agreement, and what measures or acts will be
necessary, in the opinion of the Authority, for the Developer to take or perform in order to obtain
such certification.
Section 4.5. Reconstruction of Improvements. If the Minimum Improvements are damaged
or destroyed before or after completion thereof and issuance of a Certificate of Completion and
Release of Forfeiture, but before the Termination Date, the Developer agrees, for itself and its
successors and assigns, to reconstruct the Minimum Improvements to a value at least equal to the
Minimum Market Value within one year of the date of the damage or destruction. No delay or
failure by the Developer or any successor or assign to reconstruct the Minimum Improvements as
required by this Section 4.5 shall alter or limit the Developer's obligations under the Assessment 11Agreement, which shall remain in full force and effect until the Termination Date. The Minimum
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411 Improvements shall be reconstructed in accordance with the approved Construction Plans, or such
modifications thereto as may be requested by the Developer and approved by the Authority in
accordance with Section 4.2 of this Agreement. The Developer's obligation to reconstruct the
Minimum Improvements pursuant to this Section 4.5 shall end on the Termination Date.
ARTICLE V
Business Subsidy Act Requirements
Section 5.1. Compliance with Business Subsidy Provisions. The parties agree and represent
to each other as follows:
(a) The subsidy provided by the Authority to the Developer pursuant to this Agreement
is the conveyance of the Development Property to the Developer at less than fair market value and
construction of certain public improvements and provision of certain site improvements at no cost to
the Developer. The fair market value of the Development Property, as improved by the City or the
Authority, is $ . The Authority has agreed to sell the Development Property to the
Developer for $1,153,251. The subsidy to the Developer is $ , the amount by which
the fair market value of the improved Development Property exceeds the sale price to the
Developer.
(b) The public purposes of the subsidy are to promote development of a retail facility in
the Authority, generate spin-off development at a key location in the Authority, increase net jobs in
the Authority and the State, and increase the tax base of the Authority and the State.
(c) The goals for the subsidy are to secure construction of the Minimum Improvements
on the Development Property; to maintain the Minimum Improvements as a retail facility for at
least five years as described in clause (f) below; and to create the jobs and wage levels in
accordance with this section 5.1.
(d) If the goals described in clause (c) above are not met, the Developer must make the
payments to the Authority described in section 5.3.
(e) The subsidy is needed because the cost of the Development Property at fair market
value plus the cost of public improvements and site improvements benefiting the Property makes
development of a retail facility financially infeasible without public assistance, all as determined by
the Authority upon approval of the TIF Plan.
(f) The Developer must cause continued operation of the Minimum Improvements as a
retail facility for at least five years after the date of issuance of the Certificate of Completion and
Release of Forfeiture.
• (g) The Developer does not have a parent corporation.
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•
(h) The Developer has not received, and does not expect to receive financial assistance i
from any other grantor as defined in the Business Subsidy Act in connection with purchase of the
Development Property or construction of the Minimum Improvements.
Section 5.2. Job and Wage Goals. Within two years after the date of issuance of the
Certificate of Completion and Release of Forfeiture (the "Compliance Date"), the Developer shall
cause to be created at least new full-time equivalent jobs on the Development Property
(excluding any jobs previously existing in the State as of the date of this Agreement and relocated to
this site) and shall cause the wages for the new employees to be no less than $ per hour,
exclusive of benefits. Notwithstanding anything to the contrary herein, if the wage and job goals
described in this section 5.2 are met by the Compliance Date, those goals are deemed satisfied
despite the Developer's continuing obligations under Sections 5.1(f) and 5.4. The Authority may,
after a public hearing, extend the Compliance Date by up to one year, provided that nothing in this
Section 5.2 will be construed to limit the Authority's legislative discretion regarding this matter.
Section 5.3. Remedies. If the Developer fails to meet the goals described in Section 5.1(c),
the Developer shall repay to the Authority upon written demand from the Authority a pro rata share
of the amount of$ , representing the amount of the subsidy granted to the Developer
(unless the Authority exercises its right of reverter as to the Development Parcel under Section 8.3
hereof); and interest on said amount at the implicit price deflator as defined in Minnesota Statutes,
Section 275.50, subd. 2, accrued from the date of issuance of the Certificate of Completion and
Release of Forfeiture to the date of payment. The term pro rata share means percentages calculated
as follows: •
(i) if the failure relates to the number of jobs, the jobs required less the jobs
created,divided by the jobs required;
(ii) if the failure relates to wages,the number of jobs required less the number of
jobs that meet the required wages, divided by the number of jobs required;
(iii) if the failure relates to maintenance of the retail facility in accordance with
Section 5.1(f), 60 less the number of months of operation as a retail facility (where any
month in which the retail facility is in operation for at least 15 days constitutes a month of
operation), commencing on the date of the Certificate of Completion and Release of
Forfeiture and ending with the date the retail facility ceases operation as determined by the
Authority,divided by 60; and
(iv) if more than one of clauses (i) through (iii) apply, the sum of the applicable
percentages,not to exceed 100%.
Nothing in this Section 5.3 shall be construed to limit the Authority's remedies under Article
VIII hereof. In addition to the remedy described in this Section 5.3 and any other remedy available
to the Authority for failure to meet the goals stated in Section 5.1(c), the Developer agrees and
understands that it may not a receive a business subsidy from the Authority or any grantor as •
defined in the Business Subsidy Act for a period of five years from the date of the failure or until the
Developer satisfies its repayment obligation under this Section,whichever occurs first.
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Section 5.4. Reports. The Developer must submit to the Authority a written report
regarding business subsidy goals and results by no later than March 1 of each year, commencing
March 1, 200_and continuing until the later of(i) the date the goals stated Section 5.1(c) are met;
(ii)30 days after expiration of the five-year period described in Section 5.1(f); or(iii)if the goals are
not met,the date the subsidy is repaid in accordance with Section 5.3. The report must comply with
Section 116J.994, subdivision 7 of the Business Subsidy Act. The Authority will provide
information to the Developer regarding the required forms. If the Developer fails to timely file any
report required under this Section 5.4, the Authority will mail the Developer a warning within one
week after the required filing date. If, after 14 days of the postmarked date of the warning, the
Developer fails to provide a report, the Developer must pay to the Authority a penalty of$100 for
each subsequent day until the report is filed. The maximum aggregate penalty payable under this
Section 5.4 is$1,000.
ARTICLE VI
Insurance •
Section 6.1. Required Insurance. (a) The Developer agrees to provide and maintain at all
times during the process of constructing the Minimum Improvements and, from time to time at the
request of the Authority, furnish the Authority with proof of payment of premiums on:
• (i) Builder's risk insurance, written on the so-called `Builder's Risk --
Completed Value Basis," in an amount equal to one hundred percent (100%) of the
insurable value of the Minimum Improvements at the date of completion, and with coverage
available in nonreporting form on the so called"all risk"form of policy;
(ii) Comprehensive general liability insurance (including operations, contingent
liability, operations of subcontractors, completed operations and contractual liability
insurance)together with an Owner's Contractor's Policy with limits against bodily injury and
property damage of not less than $2,000,000 for each occurrence(to accomplish the above -
required limits, an umbrella excess liability policy may be used); and
(iii) Workers'compensation insurance,with statutory coverage.
The policies of insurance required pursuant to clauses (i) and(ii) above shall be in form and content
reasonably satisfactory to the Authority and shall be placed with financially sound and reputable
insurers licensed to transact business in Minnesota. The policy of insurance delivered pursuant to
clause (i) above shall contain an agreement of the insurer to give not less than thirty (30) days'
advance written notice to the Authority in the event of cancellation of such policy or change
affecting the coverage thereunder.
(b) Upon completion of construction of the Minimum Improvements, and prior to the
• Termination Date, the Developer shall maintain, or cause to be maintained, at its cost and expense,
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and from time to time at the request of the Authority shall furnish proof of the payment of premiums
on,insurance as follows:
(i) Insurance against loss and/or damage to the Minimum Improvements under
a policy or policies covering such risks as are ordinarily insured against by similar
businesses, including (without limiting the generality of the foregoing) fire, extended
coverage, vandalism and malicious mischief, heating system explosion, water damage,
demolition cost, debris removal, collapse and flood, in an amount not less than the full
insurable replacement value of the Minimum Improvements or the Minimum Market Value,
whichever is greater. No policy of insurance shall be so written that the proceeds thereof
will produce less than the minimum coverage required by the preceding sentence,by reason
of coinsurance provisions or otherwise, without the prior consent thereto in writing by the
Authority. The term "full insurable replacement value" shall mean the actual replacement
cost of the Minimum Improvements and shall be determined from time to time at the request
of the Authority, but not more frequently than once every three years, by an insurance
consultant or insurer, selected and paid for by the Developer and approved by the Authority;
and
(ii) Such other insurance, including worker's compensation insurance respecting
all employees of the Developer, in such amount as is customarily carried by like
organizations engaged in like activities of comparable size and liability exposure; provided
that the Developer may be self-insured with respect to all or any part of its liability for
worker's compensation. •
Section 6.2. Evidence of Insurance. All insurance required in this Article VI shall be taken
out and maintained in responsible insurance companies selected by the Developer which are
authorized under the laws of Minnesota to assume the risks covered thereby. The Developer agrees
to deposit annually with the Authority copies of policies evidencing all such insurance, or a
certificate or certificates or binders of the respective insurers stating that such insurance is in force
and effect. Unless otherwise provided in this Article VI, each policy shall contain a provision that
the insurer shall not cancel nor materially modify it without giving written notice to the Developer
and the Authority at least 30 days before the cancellation or modification becomes effective. Not
less than 15 days prior to the expiration of any policy, the Developer shall furnish the Authority
evidence satisfactory to the Authority that the policy has been renewed or replaced by another
policy conforming to the provisions of this Article VI,or that there is no necessity therefor under the
terms of this Agreement. In lieu of separate policies, the Developer may maintain a single policy,
blanket or umbrella policies, or a combination thereof, having the coverage required herein, in
which event the Developer shall deposit with the Authority a certificate or certificates of the
respective insurers as to the amount of coverage in force upon the Minimum Improvements.
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• ARTICLE VII
Collection of Taxes; Assessment Agreement
Reimbursement of Increment
Section 7.1. Taxes. The Developer agrees that prior to the Termination Date: (1) it will not
seek administrative or judicial review of the applicability of any tax statute determined by any Tax
Official to be applicable to the Minimum Improvements or the Development Property or raise the
inapplicability of any such tax statute as a defense in any proceedings, including delinquent tax
proceedings; (2) it will not seek administrative or judicial review of the constitutionality of any tax
statute determined by any Tax Official to be applicable to the Minimum Improvements or the
Development Property or raise the unconstitutionality of any such tax statute as a defense in any
proceedings,including delinquent tax proceedings; (3) it will not cause a reduction in the Minimum
Market Value paid in respect of the Minimum Improvements through:
(a) willful destruction of the Minimum Improvements or any part thereof; •
(b) willful refusal to reconstruct damaged or destroyed property pursuant to section 4.5
of this Agreement;
(c) a request to the County assessor to reduce the Minimum Market Value of all or any
• portion of the Minimum Improvements;
(d) a petition to the board of equalization of the County to reduce the Minimum Market
Value of all or any portion of the Development Property;
(e) a petition to the board of equalization of the State or the commissioner of revenue of
the State to reduce the Minimum Market Value of all or any portion of the Development Property;
(f) an action in a district court of the State or the tax court of the State seeking a
reduction in the Minimum Market Value of the Development Property;
(g) an application to the commissioner of revenue of the State or to any local taxing
jurisdiction requesting an abatement of real property taxes;
(h) any other proceedings, whether administrative, legal or equitable, with any
administrative body within the County or the State or with any court of the State or the federal
government;or
(i) a transfer of the Development Property or Minimum Improvements, or any part
thereof,to an entity exempt from the payment of real property taxes under State law.
The Developer shall not, prior to the Termination Date, apply for a deferral or abatement of
• property tax on the Development Property or the Minimum Improvements.
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Section 7.2. Assessment Agreement. (a)Prior to conveyance of the Development Property,
the Developer and the Authority agree to execute an Assessment Agreement pursuant to Minnesota
Statutes, Section 469.177, subd. 8, specifying the Minimum Market Value for the Development
Property together with the Minimum Improvements. The amount of the Minimum Market Value
shall be no less than $4,500,000 as of January 2, 200_for taxes payable beginning in 200_through
the Termination Date, notwithstanding any failure to complete construction of the Minimum
Improvements by the date specified in Section 4.3 of this Agreement.
(b) The Assessment Agreement shall be substantially in the form attached hereto as
Exhibit D. Nothing in the Assessment Agreement shall limit the discretion of the Assessor to assign
a market value to the Development Property and Minimum Improvements in excess of such
Assessor's Minimum Market Value nor prohibit the Developer from seeking through the exercise of
legal or administrative remedies a reduction in such market value for property tax purposes;
provided, however, that the Developer shall not seek a reduction of such market value below the
Assessor's Minimum Market Value set forth in the Assessment Agreement in any year so long as
such Assessment Agreement shall remain in effect. The Assessment Agreement shall remain in
effect until the Termination Date; provided that if at any time before the Termination Date the
Assessment Agreement is found to be terminated or unenforceable by any Tax Official or court of
competent jurisdiction, the Minimum Market Value described in this Section 7.2 shall remain an
obligation of the Developer or its successors and assigns (whether or not such value is binding on
the Assessor), it being the intent of the parties that the obligation of the Developer to maintain, and
not seek reduction of, the Minimum Market Value specified in this Section 7.2 is an obligation
under this Agreement as well as under the Assessment Agreement, and is enforceable by the
Authority against the Developer, its successors and assigns in accordance with the terms of this
Agreement.
Section 7.3. Right to Collect Delinquent Taxes. The Developer acknowledges that the
Authority is providing substantial aid and assistance to the Developer through sale of the
Development Property for less than market value and the provision of certain public and site
improvements without cost to the Developer. The Developer understands that the real estate taxes
on the Development Property and the Minimum Improvements must be promptly and timely paid.
To that end, the Developer agrees for itself, its successors and assigns, in addition to the obligation
pursuant to statute to pay real estate taxes, that the Developer is also obligated at all times prior to
the Termination Date by reason of this Agreement to pay before delinquency all real estate taxes
assessed against the Development Property and the Minimum Improvements. The Developer
acknowledges that at all times prior to the Termination Date this obligation creates a contractual
right on behalf of the Authority to sue the Developer or its successors and assigns to collect
delinquent real estate taxes and any penalty or interest thereon and to pay over the same as a tax
payment to the County auditor. In any such suit, the Authority shall also be entitled to recover its
reasonable out-of-pocket costs, expenses and attorney fees.
Section 7.4. Use of Tax Increments. The Authority shall be free to use any tax increment
received from the Minimum Improvements for any purpose for which such increments may
lawfully be used under the TIF Plan and pursuant to the provisions of State law, and the Authority
shall have no obligations to the Developer with respect to the use of such increment.
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• ARTICLE VIII
Prohibition Against Sale; Encumbrances
Section 8.1. Prohibition Against Sale of Minimum Improvements. The Developer
represents and agrees that its use of the Development Property and its other undertakings pursuant
to the Agreement, are, and will be, for the purpose of development of the Development Property
and not for speculation in land holding. The Developer further recognizes that in view of the
importance of the construction of the Minimum Improvements on the Development Property to the
general welfare of Cottage Grove and the substantial assistance that has been made available by the
Authority for the purpose of making such Development possible, the fact that any act or transaction
involving or resulting in a significant change in the identity of the Developer is of particular concern
to the Authority. The Developer further recognizes that it is because of such qualifications and
identity that the Authority is entering into the Agreement with the Developer, and, in so doing, is
further willing to accept and rely on the obligations of the Developer for the faithful performance of
all undertakings and covenants hereby by it to be performed. For the foregoing reasons, the
Developer represents and agrees that, prior to the issuance of the Certificate of Completion and
Release of Forfeiture, there shall be no Sale of the Development Property or the Minimum
Improvements by the Developer nor shall the Developer suffer any such Sale to be made, without
the prior written approval of the Authority.
4111Section 8.2. Limitation Upon Encumbrance of Development Property. Prior to the issuance
of the Certificate of Completion and Release of Forfeiture, the Developer agrees not to engage in
any financing creating any mortgage or other encumbrance or lien upon the Development Property
or the Minimum Improvements, whether by express agreement or operation of law, or suffer any
encumbrance or lien to be made on or attached to the Development Property or the Minimum
Improvements, other than the liens or encumbrances directly and solely related to construction of
the Minimum Improvements and approved by the Authority, which approval shall not be withheld
or delayed unreasonably if the Authority determines that such lien or encumbrance will not threaten
its security in the Development Property or the Minimum Improvements.
ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined. Each and every one of the following shall be an
Event of Default under this Agreement:
(a) Failure by the Authority or the Developer to proceed to closing on the Development
Property after compliance with or the occurrence of all conditions precedent to closing;
•
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•
(b) Failure by the Developer to commence and complete construction of the Minimum •
Improvements pursuant to the terms, conditions and limitations of Article IV of this Agreement,
including the timing thereof,unless such failure is caused by an Unavoidable Delay;
(c) Failure by the Developer to pay real estate taxes or special assessments on the
Development Property and Minimum Improvements as they become due;
(d) Appeal or challenge by the Developer or any party on its behalf of the Minimum
Market Value or the Assessment Agreement prior to the Termination Date;
(e) Transfer or Sale of the Development Property or the Minimum Improvements or any
part thereof by the Developer in violation of Sections 7.1 or 8.1 of this Agreement and without the
prior written permission by the Authority;
(f) If the Developer shall file a petition in bankruptcy, or shall make an assignment for
the benefit of its creditors or shall consent to the appointment of a receiver;or
(g) Failure by either party to observe or perform any material covenant, condition,
obligation or agreement on its part to be observed or performed under this Agreement or the
Assessment Agreement;
Section 9.2. Remedies on Default. Whenever any Event of Default referred to in section
9.1 of this Agreement occurs, the non-defaulting party may take any one or more of the following •
actions after providing 30 days written notice to the defaulting party of the Event of Default, but
only if the Event of Default has not been cured within said thirty days or, if the Event of Default is
by its nature incurable within 30 days, the defaulting party does not provide assurances to the non-
defaulting party reasonably satisfactory to the non-defaulting party that the Event of Default will be
cured and will be cured as soon as reasonably possible:
(a) Suspend its performance under this Agreement, including refusing to close on the
Development Property, until it receives assurances from the defaulting party, deemed adequate by
the non-defaulting party, that the defaulting party will cure its default and continue its performance
under this Agreement;
(b) Terminate or rescind this Agreement;
(c) If the default occurs prior to completion of the Minimum Improvements, the
Authority may withhold the Certificate of Completion and Release of Forfeiture;
(d) If the default occurs prior to issuance of the Certificate of Completion and Release
of Forfeiture,revert title in the name of the Authority pursuant to Section 9.3 of this Agreement;
(e) Enforce the Assessment Agreement;
(f) Enforce the provisions of this Agreement relating to the Business Subsidy Act; and
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• (g) Take whatever action, including legal or administrative action, which may appear
necessary or desirable to the non-defaulting party to collect any payments due under this
Agreement,or to enforce performance and observance of any obligation, agreement, or covenant of
the defaulting party under this Agreement or the Assessment Agreement.
Section 9.3. Revesting Interest in the Authority Upon Happening of Event of Default
Subsequent to Conveyance to Developer. In the event that subsequent to conveyance of the
Development Property to the Developer and prior to the issuance of a Certificate of Completion and
Release of Forfeiture for the Minimum Improvements:
(a) the Developer, subject to Unavoidable Delays, fails to begin construction of the
Minimum Improvements in conformity with this Agreement and such failure to begin construction
is not cured within 30 days after written notice from the Authority to the Developer to do so;or
(b) subject to Unavoidable Delays, the Developer, after commencement of the
construction of the Minimum Improvements, fails to carry out its obligations with respect to the
completion of construction of the Minimum Improvements(including the nature and the date for the
completion thereof), or abandons or substantially suspends construction work, and any such failure,
abandonment, or suspension shall not be cured, ended, or remedied within 30 days after written
demand from the Authority to the Developer to do so;or
(c) the Developer shall fail to pay real estate taxes or assessments on the Development
• Property when due,or shall place thereon any encumbrance or lien unauthorized by this Agreement,
or shall suffer any levy or attachment to be made, or any materialmen's or mechanics' lien, or any
other unauthorized encumbrance or lien to attach, and such taxes or assessments shall not have been
paid, or the encumbrance or lien removed or discharged or provision satisfactory to the Authority
made for such payment, removal, or discharge, within 30 days after written demand by the
Authority to do so or such longer period, not to exceed 60 days, as may reasonably be necessary to
remove said lien or encumbrance; provided, that if the Developer shall first notify the Authority of
its intention to do so, it may in good faith contest any mechanics' or other lien to remain
undischarged and unsatisfied during the period of such contest and any appeal, but only if the
Developer provides the Authority with a bank letter of credit or other security in the amount of the
lien,in a form satisfactory to the Authority,pursuant to which the bank will pay to the Authority the
amount of any lien in the event the lien is finally determined to be valid or, as an alternative to such
forms of security, has made a deposit with the district court in the manner provided in Minnesota
Statutes, section 514.10. During the course of such contest, the Developer shall keep the Authority
informed respecting the status of such defense;or
(d) there is, in violation of Sections 7.1 or 8.1 of this Agreement, any transfer of the
Development Property to an entity exempt from payment of real estate taxes or any Sale of the
Development Property or the Minimum Improvements or any part thereof, and such violation shall
not be cured within 30 days after written demand by the Authority to the Developer,
then the Authority shall have the right to re-enter and take possession of the Development Property
• and to terminate and revest in the Authority the interest of the Developer in the Development
Property; provided, however, that any exercise by the Authority of its rights or remedies hereunder
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shall always be subject to and limited by, and shall not defeat,render invalid or limit in any way the •
lien of any mortgage or other encumbrance specifically and previously authorized by the Authority
in writing under this Agreement or any rights or interests provided in this Agreement for the
protection of the holders of an approved encumbrance.
Section 9.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to the
parties is intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such right or power or shall
be construed to be a waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. In order to entitle the Authority or the Developer to
exercise any remedy reserved to it, it shall not be necessary to give notice, other than such notice as
may be required in Article IX of this Agreement.
Section 9.5. No Additional Waiver Implied by One Waiver. In the event any covenant or
agreement contained in this Agreement should be breached by either party and thereafter waived by
the other party, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent,previous or subsequent breach hereunder.
ARTICLE X
Additional Provisions •
Section 10.1. Conflict of Interests; Representatives Not Individually Liable. No officer,
official,or employee of the Authority shall have any personal financial interest, direct or indirect, in
this Agreement, nor shall any such officer, official, or employee participate in any decision relating
to the Agreement which affects his or her personal financial interests, directly or indirectly. No
officer, official, or employee of the Authority shall be personally liable to the Developer, or any
successor in interest,in the event of any default or breach or for any amount which may become due
or on any obligation under the terms of this Agreement.
Section 10.2. Equal Employment Opportunity. The Developer, for itself and its successors
and assigns, agrees that during the construction of the Minimum Improvements provided for in this
Agreement, it will comply with all applicable equal employment and nondiscrimination laws and
regulations.
Section 10.3. Restrictions on Use. The Developer, for itself and its successors and assigns,
agrees to devote the Property and Minimum Improvements only to such land use or uses as may be
permissible under the City's land use regulations. The Developer, for itself, its successors and
assigns, acknowledges the limitations on use of the Property and the Minimum Improvements
imposed by Section 469.105 of the EDA Act and agrees to comply with such restrictions.
•
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. Section 10.4. Provisions Not Merged With Deed. None of the provisions of this Agreement
is intended to or shall be merged by reason of delivery of the Development Property Deed and the
Development Property Deed shall not be deemed to affect or impair the provisions and covenants of
this Agreement.
Section 10.5. Notices and Demands. Except as otherwise expressly provided in this
Agreement, any notice, demand, or other communication under the Agreement or any related
document by either party to the other shall be sufficiently given or delivered if it is dispatched by
registered or certified United States mail, postage prepaid, return receipt requested, or delivered
personally to:
(a) in the case of the Authority: 7516 80th Street South
Cottage Grove MN 55016
Attn: EDA Executive Director
(b) in the case of the Developer: • •
or at such other address with respect to either such party as that party may, from time to time,
• designate in writing and forward to the other as provided in this section 10.5.
Section 10.6. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 10.7. Disclaimer of Relationships. The Developer acknowledges that nothing
contained in this Agreement nor any act by the Authority or the Developer shall be deemed or
construed by the Developer or by any third person to create any relationship of third-party
beneficiary, principal and agent, limited or general partner, or joint venture between the Authority
and the Developer.
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