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HomeMy WebLinkAbout2015-12-16 PACKET 04.H. REQUEST OF CITY COUNCIL ACTION COUNCIL AGENDA MEETING ITEM # DATE 12/16/15 . , PREPARED BY: Community Development Jennifer Levitt ORIGINATING DEPARTMENT STAFF AUTHOR * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * :� * * * * * * * * COUNCIL ACTION REQUEST: Consider approving the Amended Developers Agreement with Hy-Vee. STAFF RECOMMENDATION: Approve the request. BUDGET IMPLICATION: $N/A $N/A N/A BUDGETED AMOUNT ACTUAL AMOUNT FUNDING SOURCE ADVISORY COMMISSION ACTION: DATE REVIEWED APPROVED DENIED ❑ PLANNING ❑ ❑ ❑ ❑ PUBLIC SAFETY ❑ ❑ ❑ ❑ PUBLIC WORKS ❑ ❑ ❑ ❑ PARKS AND RECREATION ❑ ❑ ❑ ❑ HUMAN SERVICES/RIGHTS ❑ ❑ ❑ � ECONOMIC DEV. AUTHORITY 12/8/15 ❑ � ❑ ❑ ❑ ❑ ❑ SUPPORTING DOCUMENTS: � MEMO/LETTER: Memo from Jennifer Levitt dated 12/9/15 ❑ RESOLUTION: ❑ ORDINANCE: ❑ ENGINEERING RECOMMENDATION: ❑ LEGAL RECOMMENDATION: � OTHER: Amended Developers Agreement (draft) ADMINISTRATOR'S COMMENTS: �/ `� — S � �� /� City Administrator Date * * * � * * * � * * * * � * * * � * * * * * * * * * * * * * * * * * * * � * * * * * * * * * * � COUNCIL ACTION TAKEN: ❑ APPROVED ❑ DENIED ❑ OTHER Cottage J Grove �here Pride andPrOsperity Meet TO: Honorable Mayor and City Council Charlene Stevens, City Administrator FROM: Jennifer Levitt, Community Development Director/City Engineer DATE: December 9, 2015 RE: Hy-Vee Business Subsidy Agreement Background/Discussion As redevelopment of the Grove Plaza-Rainbow site continues to take shape and more engineering details continue to be known, additional and unanticipated improvements are becoming necessary. On November 10, 2015 the EDA approved the business subsidy to Hy-Vee, Inc. for the relocation of Merchants Bank. As detailed site plans for the Hy-Vee redevelopment are nearing completion, which includes the relocation of the proposed gas station/convenience store from the southern side of the access drive off of East Point Douglas Road to the northern side, additional infrastructure will be necessary to enable the larger convenience store to be constructed on the former Merchants Bank site. Please see the enclosed site plan for the new gas station/convenience store layout. The new layout will provide for better flow of motorists through the site, a larger store (4,500 square feet) from the originally proposed 3,100 square foot store, and additional green space. As part of this improvement, it is necessary to provide an additional busi- ness subsidy in order to address the additional infrastructure that is necessary to support this layout. The additional business subsidy will provide for assistance to make the site pad ready, improvements to the parking lot to improve traffic flow, and the necessary utility improvements related to abandoning and relocating utilities on the site. The addi- tional business subsidy is in the value of$149,000. The revised agreement provides for the additional business subsidy and adds clarifying language for the financial distribution of funds. The EDA unanimously approved the Amended Developers Agreement with Hy-Vee on December 8, 2015. Recommendation It is recommended to approve the Amended Developers Agreement with Hy-Vee. SECOND AMENDED AND RESTATED CONTRACT FOR PRIVATE DEVELOPMENT By and Between COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY HY-VEE, INC. And THE CITY OF COTTAGE GROVE This document drafted by: LeVander, Gillen & Miller, P.A. 633 South Concord St. Suite 400 South St. Paul, MN 55075 651-451-1831 SECOND AMENDED AND RESTATED CONTRACT FOR PRIVATE DEVELOPMENT THIS SECOND AMENDED AND RESTATED CONTRACT FOR PRIVATE DEVELOPMENT (“Agreement”), made this _____ day of , 2015, 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 12800 Ravine Parkway South, Cottage Grove, Minnesota 55016 (the “EDA”), Hy-Vee, Inc., an Iowa corporation, having its principal office at 5820 Westown Parkway, West Des Moines, Iowa 50266-8223 (the “Developer”) and the City of Cottage Grove, a Minnesota municipal corporation, having its principal office at 12800 Ravine Parkway South, Cottage Grove, Minnesota 55016 (the “City”) . WITNESSETH: WHEREAS, the Developer, the EDA and the City entered into a Development Agreement on October 29, 2015 for the redevelopment of the Development Property and a First Amended Development Agreement on November 10, 2015 (the “Original Development Agreement”); and WHEREAS, the Developer needs additional financial assistance toward the infrastructure costs of the Development Property; and WHEREAS, the Developer has requested additional financial assistance from the EDA in order to make the redevelopment economically feasible; WHEREAS, the EDA believes that the development of the Development Property pursuant to and in general fulfillment of this Agreement is in the vital and best interests of the City, will promote the health, safety, morals, and welfare of its residents, and will be in accord with the public purposes and provisions of the applicable State and local laws and requirements. NOW, THEREFORE, in consideration of the covenants and the mutual obligations contained herein, the EDA 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: “Agreement” means this Agreement, as the same may be from time to time modified, amended, or supplemented. “Certificate of Completion” 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. 1 “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 EDA. “County” means Washington County, Minnesota. “Developer” means Hy-Vee, Inc., an Iowa corporation, its successors and assigns. “Development Property” means the real property upon which the Minimum Improvements will be constructed, which property is generally described in Exhibit A attached hereto “EDA” means the Cottage Grove Economic Development Authority. “Event of Default” means an action by the Developer or the EDA listed in Article IX of this Agreement. “Merchants Bank Property” means the property occupied by Merchants Bank and located at 7200 East Point Douglas Road South, Cottage Grove, Minnesota 55016. “Minimum Assessment Agreement” means the Minimum Assessment Agreement by and between the EDA and Grove-Rainbow dated June 12, 2002, document number 3243182, which is recorded in the Washington County Recorder’s Office and the Amended Assessment Agreement by and between the EDA and Grove-Rainbow dated January 13, 2004, document number 3443746, which are recorded in the Washington County Recorder’s Office, both of which are attached hereto as Exhibit B and expire with Tax Increment Financing District 1-12 on or before December 31, 2028. “Minimum Improvements” means the construction of an approximately 90,000 square foot building for the purpose of a grocery store and related improvements consistent with the Preliminary Plans. “Preliminary Plans” means, collectively, the plans, drawings and specifications for the construction of the Minimum Improvements which are listed on Exhibit C and 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. “School District” means School District #833. “School District Property” means property the EDA intends to acquire from the School District and subsequently sell to Developer. School District Property shall not be incorporated or included on any Final Plat of Development Property until Tax Increment Financing District 1-12 (“TIF District”) expires, which is in approximately 2028. The School District Property is not currently included in the TIF District and is not anticipated to be added to the TIF District. 2 “State” means the state of Minnesota. “Unavoidable Delays” means delays which are the direct result of 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 EDA reasonably contemplated by this Agreement, any acts or omissions of any federal, State or local governmental unit which result in delays in construction of the Minimum Improvements, or any other delays caused by reasons outside of the reasonable control of 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. Minimum Assessment Agreement Exhibit C. Preliminary Plan Documents Exhibit D. Form of Certificate of Completion Exhibit E. Final Plat 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 EDA. The EDA makes the following representations as the basis for the undertakings on its part herein contained: (a)The EDA is a public body corporate and politic under the laws of Minnesota. The EDA 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 EDA have the EDA to do so and to bind the EDA by their actions. 3 (c)The EDA has received no notice or communication from any local, State or federal official that the activities of the Developer or the EDA in the Development District may be or will be in violation of any environmental law or regulation. The EDA 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 an Iowa corporation, duly organized and in good standing under the laws of Iowa and is not in violation of any provisions of its company documents or by-laws. 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 EDA 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 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)The Minimum Improvements will comply with the terms and conditions of the Minimum Assessment Agreement. ARTICLE III Contingencies Section 3.1 Developer’s Contingencies. Developer’s obligations to perform under this Agreement are contingent upon the following: (a)Developer’s acquisition of all of Development Property, the School District Property, and the Merchants Bank Property; (b)Obtaining all governmental approvals necessary for the construction of Minimum Improvements; (c)Testing results satisfactory to Developer, including, but not limited to soils, wells, engineering, hazardous waste and environmental review; 4 (d)EDA’s execution of an agreement related to access to the Property for purposes of maintaining fire hydrants as well as public infrastructure, including indemnification therefor. (e)The satisfaction by the EDA of the EDA’s contingencies described in Section 3.2 herein. Section 3.2.EDA’s Contingencies. EDA’s obligations to perform under this Agreement are contingent upon the following: (a)EDA’s acquisition of School District Property and subsequent sale to Developer; (b)EDA’s obtaining an interfund loan from City for the business subsidy; (c)With respect to the Merchants Bank Relocation Subsidy only, Developer’s or Merchants Bank’s acquisition and preparation of a site within the City of Cottage Grove that is acceptable to the EDA and upon which Merchants Bank shall be relocated. Developer or Merchants Bank shall prepare the site, including any infrastructure improvements, according the City’s standards and specifications prior to such relocation. (d)Developer’s execution of access and maintenance agreements necessary to ensure that adjacent parcels have sufficient access and Developer’s execution of a stormwater management agreement with the City that will benefit Development Property and adjacent parcels. ARTICLE IV Construction of Minimum Improvements Section 4.1.Construction of Developer and Minimum Improvements. Within 150 days after successfully acquiring all of the Development Property, the Developer shall submit Construction Plans to the EDA. The Construction Plans shall provide for the construction of Minimum Improvements and shall be in substantial conformity with the Preliminary Plans listed on Exhibit C, attached hereto. All Developer and Minimum Improvements constructed on the Development Property shall be constructed, operated and maintained in accordance with the terms of the Construction Plans, this Agreement, all zoning approvals and conditions, and all local, Minnesota and federal laws and regulations (including, but not limited to, Environmental Controls and Land Use Regulations). Developer will use commercially reasonable efforts to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will use commercially reasonable efforts to meet, in a timely manner, the requirements of applicable Environmental Controls and Land Use Regulations which must be met before Developer Improvements may be lawfully constructed. Section 4.2.Grading/Drainage Plan and Easements. Developer shall construct drainage facilities adequate to serve the Minimum Improvements in accordance with the Construction Plans. Developer agrees to grant to the City all necessary easements for the preservation of the drainage system, for drainage basins, and for utility service as required by the City pursuant to terms mutually agreeable to Developer and the City. The grading and drainage 5 plan shall include any measures necessary to conform to the overall City storm sewer plan, including but not limited to such considerations as lot and building elevations, drainage swales, storm sewer, catch basins, erosion control structures and ponding areas. The grading of the site shall be completed in conformance with the Construction Plans. All storm sewer facilities, sanitary sewer and water lines shall be private unless located within the City’s right of way, in which case, that portion of the facilities shall be public. Section 4.3.Street Maintenance, Access, and Repair. The Developer shall clear, on a daily basis, any soil, earth or debris from the existing streets within or adjacent to this Minimum Improvements resulting from the grading or building on the land within the Minimum Improvements by the Developer or its agents, and shall restore any gravel base contaminated by mixing construction or excavation debris or earth in it, and repair any damage to bituminous surfacing resulting from the use of construction equipment. Section 4.4.Erosion Control. The Developer shall provide and follow a plan for erosion control and pond maintenance in accord with the Best Management Practices (BMP) as delineated by the Minnesota Pollution Control Agency. Such plan shall be detailed on the Construction Plans and shall be subject to approval of the City. The Developer shall install and maintain such erosion control structures as appear necessary under the Construction Plans or become necessary subsequent thereto. The Developer shall be responsible for all damage caused as the result of grading and excavation within the Minimum Improvements including, but not limited to, restoration of existing control structures and clean-up of public right-of-way. As a portion of the erosion control plan, the Developer shall re-seed or sod any disturbed areas in accordance with the Construction Plans. The City reserves the right to perform any necessary erosion control or restoration as required, if these requirements are not complied with after Formal Notice by the City. The Developer shall be financially responsible for payment for this extra work. Section 4.5.Zoning; Other Approvals. The EDA agrees to exercise its reasonable efforts to grant or obtain such land use planning review and approvals as may be required in connection with the development of the Minimum Improvements by applicable Land Use Regulations. The parties agree that the development of the Minimum Improvements is in the public interest, will provide significant and important benefits to the City and its residents, and is a desirable and appropriate use of the Development Property. Developer acknowledges and agrees that the EDA cannot and does not undertake in this Development Agreement to bind itself to grant or obtain any approvals, permits, variances, zoning or rezoning applications or other matters within the legislative or quasi-judicial discretion of the EDA or the governing body of any other political subdivision or public agency. The EDA nevertheless agrees that upon request of Developer, it will cooperate with Developer to seek and secure approvals, permits, variances, and other matters as may be required prior to the acquisition by Developer of all portions of the Development Property affected thereby, to cause such matters to be timely considered by the EDA, City and Planning Commission or the governing body of other political subdivisions or public agencies with jurisdiction, and to otherwise cooperate with Developer to facilitate implementation of the Minimum Improvements. Section 4.6.Commencement and Completion of Construction. Subject to Unavoidable Delays, if Developer or Merchants Bank acquires a Merchants Bank relocation property, then the 6 Developer shall commence construction of the Minimum Improvements no later than May 2, 2016, and subject to Unavoidable Delays, the Developer shall have substantially completed the construction of the Minimum Improvements no later than October 1, 2017; provided, however, if Developer or Merchants Bank does not acquire a Merchants Bank relocation property, the Developer shall commence construction of the Minimum Improvements no later than August 1, 2016, and subject to Unavoidable Delays, the Developer shall have substantially completed the construction of the Minimum Improvements no later than December 31, 2018. All work with respect to the Minimum Improvements to be constructed or provided by the Developer on the Development Property shall be in substantial conformity with the Construction Plans and Developer will not reduce the size of the Minimum Improvements by more than ten percent (10%) without the consent of the EDA and the City, which consent shall not be unreasonably withheld, conditioned or delayed. The Developer shall make such reports as reasonably requested by the EDA regarding construction of the Minimum Improvements as the EDA deems necessary or helpful in order to monitor progress on construction of the Minimum Improvements. Section 4.7.Certificate of Completion. (a) After substantial completion of the Minimum Improvements in accordance with the Construction Plans and all terms of this Agreement, the EDA will furnish the Developer with a Certificate of Completion in the form of Exhibit D hereto. Such certification by the EDA shall be a conclusive determination of satisfaction and termination of the agreements and covenants in this Agreement with respect to the obligations of the Developer 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 4.7 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 EDA shall refuse or fail to provide such certification in accordance with the provisions of this Section 4.7, the EDA shall, within ten (10) 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 EDA, for the Developer to take or perform in order to obtain such certification. Section 4.8.Reconstruction of Improvements. If the Minimum Improvements are damaged or destroyed before completion thereof and issuance of a Certificate of Completion, the Developer agrees, for itself and its successors and assigns, to reconstruct the Minimum Improvements within eighteen (18) months of the date of the damage or destruction, subject to Unavoidable Delays. 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 EDA in accordance with Section 4.1 of this Agreement, which approval will not be unreasonably withheld. The Developer’s obligation to reconstruct the Minimum Improvements pursuant to this Section 4.8 shall end when the Certificate of Completion is issued. 7 Section 4.9. Additional Construction Requirements. On or before the issuance by the City of a building permit to Developer, Developer shall provide a cash escrow or a letter of credit in the amount of 110% of the costs for landscaping, exclusive of irrigation, to ensure completion and establishment of such landscaping improvements. Landscaping, inclusive of irrigation, shall be completed in accordance with Section 4.6 above. ARTICLE V Other Obligations of Developer Section 5.1.Building Permit Fees. Developer acknowledges that building permit fees will be payable by Developer or Successor Developer for Developer Improvements. Section 5.2.Platting. The Developer agrees to replat the Development Property at its sole cost and expense prior to the issuance of any building permits. A Final Plat will be attached hereto as Exhibit E. Section 5.3.Miscellaneous Requirements. Any additional requirements as specified by the EDA are incorporated herein. ARTICLE VI Insurance Section 6.1.Required Insurance. The Developer agrees to provide and maintain and/or cause its general contractor to provide and maintain at all times during the process of constructing the Minimum Improvements: (a)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; (b)Comprehensive general liability insurance 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 (c)Workers’ compensation insurance, with statutory coverage. The policies of insurance required pursuant to subsections (a) and (b) above shall be in form and content reasonably satisfactory to the EDA and shall be placed with financially sound and reputable insurers licensed to transact business in Minnesota. The policy of insurance delivered pursuant to the subsection above shall contain an agreement of the insurer to give not less than thirty (30) days’ advance written notice to the EDA in the event of cancellation of such policy. 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 8 agrees to, upon receipt of request therefor, deposit annually with the EDA 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. 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 EDA a certificate or certificates of the respective insurers as to the amount of coverage in force upon the Minimum Improvements. ARTICLE VII Business Subsidy Section 7.1.Business Subsidy Act. The assistance provided to the Developer under the Development Agreement is subject to Minnesota Statutes, Sections 116J.993 to 116J.995 (the “Business Subsidy Act”) and the City’s Business Subsidy Criteria, Resolution 03-138. The provisions of this Section constitute the “business subsidy agreement” for the purposes of the Business Subsidy Act. Section 7.2.Findings. The EDA hereby finds that the subsidy is needed because the cost of acquisition, demolition and site clearance made redevelopment financially infeasible without public assistance and the Developer cannot proceed without the subsidy. In addition, the EDA hereby finds that the Minimum Improvements: (a)Are consistent with the Comprehensive Plan. (b)Will contribute to the establishment of a critical mass of commercial development within the area. (c)Will increase the range of goods and services available or encourage fast-growing or other desirable businesses to locate or expand within the community. (d)Will promote additional or spin-off development within the community. (e)Will encourage full utilization of existing or planned public infrastructure improvements. Section 7.3.Public Purpose. The public purposes of the subsidy are to redevelop an area that was occupied by substandard and obsolete buildings, implement the City’s land use goals identified in the Comprehensive Plan, and increase employment and tax base. Section 7.4.General Terms. The parties agree and represent to each other as follows: (a)The subsidy provided to the Developer consists of a reimbursement in cash for utility infrastructure and storm system improvements, as well as conveyance to Developer of the School District Property for below the fair market price. Specifically, the subsidy consists of the following: 9 i.Up to $980,000 for storm sewer, sanitary sewer and water improvements, as approved by the City Engineer; ii.Up to $400,000 to upgrade the storm sewer system to include an underground storage system, as approved by the City Engineer; iii.Conveyance of the School District Property to Developer for $ 1.00 (value of $188,375); iv.Up to $450,000 toward the purchase price for property in the City of Cottage Grove upon which Merchants Bank shall be relocated (the “Merchants Bank Relocation Subsidy”); v.$149,000 for infrastructure improvements on the Development Property. (b)Upon proof of payment by Developer for the associated costs for any one or more of the items set forth in 7.4(a) i. – iv., EDA shall, as payment for each such item(s) are requested by Developer from time-to-time, reimburse the Developer up to the amount(s) stated above for each such item. The EDA is repaying itself through an interfund loan, payable from the City’s future economic capital projects fund. (c)For item 7.4(a) v., EDA shall pay Developer by cash or wire transfer at closing when Developer acquires Development Property. Section 7.5.Business Subsidy Goals. The goals for the subsidy are: (a)Creation of 50 full-time or full-time equivalent jobs with wages of at least $11.00 per hour, exclusive of benefits, within two years after the date of issuance of the certificate of completion; (b)To secure the timely development of the commercial improvements on the Development Property; and (c)To maintain such improvements as commercial facilities for at least five years after the date of issuance of the certificate of completion. For the purpose of this section, the commercial facility will be considered to be maintained in operation if at least 50 percent of the net square footage is leased, or available for lease, to any person or entity, for use in its private trade or business, or occupied by Developer for use in its trade or business. Developer may be authorized to move from Cottage Grove within five years only if, after a public hearing, the EDA approves the request to move. If the goals described in this Section 7.5 are not met, the remedies are as described in Section 7.8 below. Section 7.6.The Developer does not have a parent company. 10 Section 7.7.The Developer has not received, and does not expect to receive for the Development Property, financial assistance from any other “grantor” as defined in the Business Subsidy Act. Section 7.8.Remedies. If the Developer fails to meet the goals described in Section 7.5 and subject to the notice and cure provisions of the Development Agreement, the Developer shall comply with the remedies described in Section 7.9 and 7.10, as the case may be. Those provisions include (among other things) repayment of up to $2,167,375 (the subsidy amount), all under the terms and conditions described in those paragraphs. Section 7.9.If the Commercial Improvements are timely completed but Developer fails to meet the five-year operation goal, the total subsidy amount will be prorated by the portion of the five-year period lapsed as of the date of default. In that event, as the EDA’s sole and exclusive remedy for the failure of the goals described in Section 7.5 herein, as liquidated damages and not a penalty, and in lieu of all other remedies at law or inequity, Developer must pay to the EDA a prorated portion of the $2,167,375 subsidy amount (allocated to the time remaining in the five-year operation period), together with an interest rate that is set at no less than the implicit price deflator for government consumption expenditures and gross investment for state and local governments prepared by the Bureau of Economic Analysis of the United States Department of Commerce for the 12-month period ending March 31 of the previous year on the prorated amount the rate described in the Business Subsidy Act, accrued from the date of violation (i.e., ending operation of the Commercial Improvements) through the date of payment (the “Liquidated Damages”). Section 7.10.The Developer agrees and understands that it may not receive a business subsidy from the EDA or any grantor for Development Property (as defined in the Business Subsidy Act) for a period of five (5) years from the date of the failure or until the Developer satisfies its repayment obligation under this Section, whichever occurs first. Section 7.11.Reports. The Developer must submit to the EDA a written report regarding business subsidy goals and results by no later than March 1 of each year, commencing March 1, 2017 and continuing until the later of: (a)The date the goals stated Section 7.5 are met; (b)30 days after expiration of the five-year period described in Section 7.5; or (c)If the goals are not met, the date the subsidy is repaid in accordance with Section 7.9. The report must comply with Section 116J.994, subdivision 7 of the Business Subsidy Act. Section 7.12.The EDA will provide information to the Developer regarding the required forms. If the Developer fails to timely file any report required under this Section, the EDA 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 EDA a penalty of $100 for each subsequent day until the report is filed. The maximum aggregate penalty payable under this Section is $1,000. 11 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 EDA 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 EDA. The Developer further recognizes that it is because of such qualifications and identity that the EDA 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 to an unaffiliated third party, nor shall the Developer suffer any such sale to be made, without the prior written approval of the EDA; provided, however, it is acknowledged and agreed that Developer may sell and/or transfer the Development Property to (a) an entity created by and wholly owned by Developer for the holding of the Development Property, or (b) any unaffiliated third party if after the sale and/or transfer, Developer remains the occupant of the entirety of the Development Property as a tenant pursuant to a sale and leaseback transaction or similar arrangement; provided that with respect to the circumstances described in (a) and (b) herein (a “Permitted Transfer”), Developer shall remain Developer hereunder and shall be primarily liable to the EDA for the performance of Developer’s obligations. (a)As security for the obligations of Developer under this Agreement, Developer represents and agrees that prior to the issuance of the Certificate of Completion, Developer will maintain its existence as an Iowa corporation and shall not dissolve or otherwise dispose of all or substantially all of its assets except as permitted by this Agreement. Nothing herein shall prevent Developer from selling or issuing additional stock in Developer. Except with respect to a Permitted Transfer, Developer and any entity succeeding to all or part of Developer’s rights in the Minimum Improvements or any part under this Section may sell or otherwise transfer to a partnership or limited liability company, or other legal entity, or an individual, all or any part of its interest in this Agreement and the Minimum Improvements and thereafter be discharged from liability hereunder to the extent of the interest so transferred, if Developer or such Successor Developer is not in default of any of its material obligations under this Agreement, if the transferee partnership, limited liability company, entity or individual enters into a written agreement assuming all of the obligations of Developer under this Agreement not retained by Developer, if any, with respect and to the extent of the interest so transferred, in form and substance reasonably acceptable to the EDA, and the transferee partnership, limited liability company, 12 entity or individual is financially capable of and has experience in performing the obligations of Developer under this Agreement and is approved by the EDA. In the event of a sale in accordance with this subsection that is not a Permitted Transfer, Developer or other transferor shall not be liable for any actions of the Successor Developer or purchaser or have any liability under this Agreement with respect to matters arising subsequent to such consolidation, merger or sale which relate to the interest so transferred. (b)Developer or any Successor Developer may not sell or convey fee title to the Development Property and its rights and obligations under this Development Agreement with respect to such parcel to another entity, whether or not such Successor Developer is under common management and control with Developer, or is related to Developer, except in accordance with the terms of this Agreement. Except with respect to a Permitted Transfer and as provided in Section 8.1(a) no such sale or conveyance shall be effective or recognized for any purpose hereunder, unless: i.The Successor Developer will assume all of Developer’s obligation under any agreement relative to a Credit Provider and the Successor Developer is approved by the Credit Provider and enters into a written assumption agreement reasonably acceptable to the Credit Provider; and ii.The Successor Developer will assume all of Developer’s financial obligations to the EDA and the Successor Developer is approved by the EDA and enters into a written assumption agreement in form and substance reasonably acceptable to the EDA. 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 EDA, which approval shall not be withheld or delayed unreasonably if the EDA 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 EDA or the Developer to proceed to closing on the Development Property after compliance with or the occurrence of all conditions precedent to closing; 13 (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)Use by the Developer or others of the Minimum Improvements for purposes other than those contemplated and permitted by this Agreement, including failure to comply with Section 10.3 of this Agreement. (e)Transfer or sale of the Development Property or the Minimum Improvements or any part thereof by the Developer in violation of Section 8.1 of this Agreement and without the prior written permission by the EDA; (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; (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 following the expiration of any applicable cure period; (h)Failure to comply with the business subsidy requirements. 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 EDA may withhold the Certificate of Completion; (d)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. 14 Section 9.3.Intentionally Omitted. Section 9.4.No Remedy Exclusive. Except with respect to the EDA’s limited remedy of the right to Liquidated Damages set forth in Section 7.9 herein for a failure of the goals set forth in Section 7.5, 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. 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, unless otherwise set forth in the terms of such waiver, 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 EDA 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 EDA 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. 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 sent by registered or certified United States mail, postage prepaid, return receipt requested, or delivered personally to: 15 (a)in the case of the EDA: 12800 Ravine Parkway South Cottage Grove MN 55016 Attn: EDA Executive Director (b)in the case of the Developer: 5820 Westown Parkway West Des Moines, Iowa 50266-8223 Attn: Legal Dept. (c)in the case of the City: 12800 Ravine Parkway South Cottage Grove MN 55016 Attn: City Administrator 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. Notices shall be deemed given upon actual delivery. 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 EDA 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 EDA and the Developer. Section 10.8. Approvals. Approvals by the EDA shall not be unreasonably withheld, conditioned or delayed. Section 10.9 Original Development Agreement. Upon the full execution of this Agreement, the Original Development Agreement shall be deemed terminated by the parties and of no further force and/or effect. (The remainder of this page has been intentionally left blank.) 16 IN WITNESS WHEREOF, the EDA 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 Myron Bailey Its President By Charlene R. Stevens Its Executive Director STATE OF MINNESOTA ) ) SS COUNTY OF WASHINGTON ) The foregoing instrument as acknowledged before me this _____ day of _________, 2015, by Myron Bailey and Charlene R. Stevens, 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 17 HY-VEE, INC. By Jeffrey Markey, Sr. Vice President By Nathan Allen, Assistant Secretary STATE OF IOWA ) ) SS COUNTY OF POLK ) On this ____ day of _______________, 20____, before me, the undersigned, a Notary Public in and for the state of Iowa, personally appeared Jeffrey Markey and Nathan Allen, to me personally known, who being by me duly sworn did say that they are the Sr. Vice President and Assistant Secretary, respectively, of Hy-Vee, Inc., an Iowa corporation, that the instrument to which this is attached was signed on behalf of said corporation by authority of its Board of Directors; and that the said Jeffrey Markey and Nathan Allen as such officers acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. ________________________________ Notary Public in and for the State of Iowa 18 CITY OF COTTAGE GROVE By Myron Bailey Its Mayor By Joseph Fischbach Its City Clerk STATE OF MINNESOTA ) ) SS COUNTY OF WASHINGTON ) The foregoing instrument as acknowledged before me this _____ day of _________, 2015, by Myron Bailey and Joseph Fischbach, Mayor and City Clerk, respectively, of the City of Cottage Grove, a municipal corporation under the laws of Minnesota, on behalf of the City. Notary Public 19 EXHIBIT A LEGAL DESCRIPTION Legal Description for Development Property: Real property in Washington County, Minnesota, described as follows: rd Lot 1, Block 1, Grove Plaza 3 Addition, as shown on the Final plat. A-1 Depiction of Development Property: A-2 Legal Description for Merchants Bank Property: A-3 Legal Description for School District Property: A-4 EXHIBIT B MINIMUM ASSESSMENT AGREEMENTS (attached hereto) B-1 EXHIBIT C PRELIMINARY PLAN DOCUMENTS The Minimum Improvements shall be constructed in accordance with the attached preliminary plan documents C-1 EXHIBIT D FORM OF CERTIFICATE OF COMPLETION 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 __________________, Inc., a Minnesota corporation (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 _______, 2015 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 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 EDA By Myron Bailey Its President By Charlene R. Stevens Its Executive Director E-1 EXHIBIT E FINAL PLAT (attached hereto) E-2