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HomeMy WebLinkAbout2016-04-06 PACKET 08.L. AMENDMENT TO PURCHASE AGREEMENT THIS AMENDMENT TO PURCHASE AGREEMENT into as of , 2016 the Cottage Grove Economic Development Authority, a public body corporate and politic under the laws of Minnesota, (), and Belijah L.L.C . RECITALS Recital No. 1. EDA and Gardenworld, Inc., predecessor in interest to Buyer, entered into a purchase agreement on December 8, 2015 for the purchase and sale of real property identified in the Purchase Agreement. Recital No. 2. On or about February 9, 2016, the Purchase Agreement was assigned from Gardenworld, Inc. to Buyer. Recital No. 3. Buyer has requested an extension of the contingency period regarding Section 5.1A(11) regarding financing, which is set to expire on or about April 12, 2016. Recital No. 4. The EDA does not object to an extension for the financing period. NOW, THEREFORE, Buyer and EDA agree that the contingency period for Section 5.1A(11) regarding financing shall be extended to April 29, 2016. \[remainder of page intentionally blank\] IN AGREEMENT , the parties hereto have hereunto set their hands as of the date hereinbefore first written. \[Signature page to Amendment to Purchase Agreement by EDA\] COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY By ________________________________ Myron Bailey Its President By ________________________________ Charlene R. Stevens Its Executive Director 2 \[Signature page to Amendment to Purchase Agreement by Belijah L.L.C.\] BELIJAH L.L.C By:____________________________ Dave Van der Sman Its Chief Financial Officer 3 D-1 EXECUTION COPY CONTRACT FOR PRIVATE DEVELOPMENT BY AND BETWEEN COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY AND GARDENWORLD, INC. This document was drafted by: KENNEDY & GRAVEN, Chartered (RHB) 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337-9300 471678v6 CT165-52 TABLE OF CONTENTS Page PARTIES AND RECITALS............................................................................................................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 EDA ....................................................................................5 Section 2.2. Representations and Warranties by the Developer ..................................................5 ARTICLE III Acquisition and Conveyance of Property Section 3.1. Acquisition and Conveyance of the Property ..........................................................6 Section 3.2. Financing..................................................................................................................7 ARTICLE IV Construction of Minimum Improvements Section 4.1. Construction of Minimum Improvements ...............................................................7 Section 4.2. Preliminary and Construction Plans.........................................................................7 Section 4.3. Commencement and Completion of Construction ...................................................8 Section 4.4. Certificate of Completion and Release of Forfeiture ..............................................8 Section 4.5. Restrictions on Use; Land Use Approvals ...............................................................9 Section 4.6. Reconstruction of Minimum Improvements ............................................................9 Section 4.7. Additional City Approvals and Permits ...................................................................9 ARTICLE V Financial Assistance Section 5.1. Financial Assistance.................................................................................................9 Section 5.2. Conditions Precedent to Conveyance of Property ...................................................9 ARTICLE VI i 471678v6 CT165-52 Insurance Section 6.1. Required Insurance ................................................................................................10 Section 6.2. Evidence of Insurance ............................................................................................11 ARTICLE VII Business Subsidy Act Requirements Section 7.1. Compliance with Business Subsidy Provisions .....................................................11 Section 7.2. Job and Wage Goals; Qualified Facility ................................................................12 Section 7.3. Remedies ................................................................................................................12 Section 7.4. Reports ...................................................................................................................13 ARTICLE VIII Use of Tax Increment; Collection of Taxes; Assessment Agreement Section 8.1. Use of Tax Increment.............................................................................................13 Section 8.2. Right to Collect Delinquent Taxes .........................................................................13 Section 8.3. Taxes; Minimum Market Value .............................................................................14 Section 8.4. Assessment Agreement ..........................................................................................15 Section 8.5. Restrictions on Use in Economic Development TIF District ................................15 ARTICLE IX Restrictions on Sale or Encumbrance of Minimum Improvements; Assignment Section 9.1. Prohibition Against Sale of Minimum Improvements ...........................................16 Section 9.2. Limitation Upon Encumbrance of Property ...........................................................17 Section 9.3. Assignment; Continuing Developer Obligations ...................................................17 ARTICLE X Events of Default Section 10.1. Events of Default Defined .....................................................................................17 Section 10.2. Remedies on Default ..............................................................................................18 Section 10.3. Revesting Interest in the EDA upon Happening of Event of Default Subsequent to Conveyance to Developer ..............................................................19 Section 10.4. No Remedy Exclusive............................................................................................20 Section 10.5. No Additional Waiver Implied by One Waiver .....................................................20 ARTICLE XI Additional Provisions Section 11.1. Conflict of Interests; EDA Representatives Not Individually Liable ....................20 Section 11.2. Release and Indemnification Covenants ................................................................21 Section 11.3. Titles of Articles and Sections ...............................................................................21 Section 11.4. Notices and Demands ............................................................................................21 ii 471678v6 CT165-52 Section 11.5. Counterparts ...........................................................................................................22 Section 11.6. Recording ...............................................................................................................22 Section 11.7. Attorney Fees .........................................................................................................22 Section 11.8. Governing Law; Venue ..........................................................................................22 Section 11.9. Disclaimer of Relationship ....................................................................................22 Section 11.10. Entire Agreement ...................................................................................................23 ACKNOWLEDGMENT SIGNATURES EXHIBIT A Legal Description of the Property EXHIBIT B \[Intentionally Omitted\] EXHIBIT C Form of Certificate of Completion and Release of Forfeiture EXHIBIT D Form of Assessment Agreement iii 471678v6 CT165-52 CONTRACT FOR PRIVATE DEVELOPMENT THIS is made as of the _______ day of __________, 2016, 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 , and Gardenworld, Inc., a Minnesota corporation, having its principal office at 788 Hampden Avenue, St. Paul, Minnesota 55114 RECITALS WHEREAS, on December 8, 2015, the EDA modified the development district program 1 Minnesota Statutes, sections 469.090 to 469.1082; and WHEREAS, on December 8, 2015, the EDA approved a tax increment financing plan for Tax Increment Financing District No. 1-16 (Gardenworld), an economic development tax increment financing district, ursuant to Minnesota Statutes, sections 469.174 to 469.179; and WHEREAS, on January 6, 2016, the city of Cottage Grove ( hearing and approved the modified Program and the TIF Plan; and WHEREAS, in order to achieve the objectives of the amended Program and the TIF Plan, the EDA is prepared to offer certain financial assistance to the Developer in order to bring about development of a greenhouse/warehouse/office facility in accordance with this Agreement; and WHEREAS, the EDA believes that the fulfillment generally of this Agreement is in the vital and best interests of Cottage Grove and the health, safety, 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 and TIF District have been established. NOW, THEREFORE, in consideration of the mutual covenants and obligations of the City and the Developer, each party does hereby represent, covenant and agree with the other as follows: ARTICLE I Definitions Section 1.1. Definitions. This Agreement, unless a different meaning clearly appears from the context: EDA associated with modifying the Development District and establishing and administering the TIF District, including the drafting and negotiating of this Agreement, as permitted by the TIF Act. 1 471678v6 CT165-52 Contract for Private Development, as the same may be from time to time modified, amended, or supplemented. Market Value of the Property and Minimum Improvements in the general form attached hereto as Exhibit D. ashington County, Minnesota or any other assessor legally responsible for assessment of the Property and the Minimum Improvements for real estate tax purposes. Minnesota Statutes, sections 116J.993 through 116J.995, as amended. and Release of Forfeiture general form attached hereto as Exhibit C, which will be provided to the Developer upon completion of the Minimum Improvements. Cottage Grove, Minnesota. the plans, drawings and specifications for the Minimum Improvements which are consistent with the Preliminary Plans and submitted by the Developer pursuant to Article IV of this Agreement. Washington County, Minnesota. Gardenworld, Inc., a Minnesota corporation. 1. redevelopment of Development District No. 1, as modified. Minnesota Statutes, sections 469.090 through 469.1082, as amended. corporate and politic under the laws of Minnesota. e Developer listed in Article X of this Agreement. the interfund loan approved by the City on January 6, 2015 and by the EDA on January12, 2016, pursuant to section 469.178, subd. 7 of the TIF Act. 2 471678v6 CT165-52 construction on the Property of a facility which includes a 43,560 square foot greenhouse, a 29,620 square foot warehouse and a 3,660 square foot office. After completion of the Minimum Improvements, the term shall mean the Property as improved by the Minimum Improvements. Minimum Improvements of $2,728,500 as of January 2, 2017 for taxes payable beginning in 2018 until the Termination Date. Minimum Improvements which were included in the materials for the site plan and conditional use permit applications regarding the project which were approved by the City on January 20, 2016, and which materials are incorporated herein by reference. described in Exhibit A attached hereto. Developer. Developer dated December 8, 2015 regarding the sale of the Property by the EDA to the Developer and which authorized assignment of the Property to the Assignee with written notice to the EDA. in Article IX of this Agreement. ate of Minnesota. to the County with respect to the Property and the Minimum Improvements and which is remitted to the City as tax increment pursuant to the TIF Act prior to the Termination Date. Financing , Minnesota Statutes, sections 469.174 to 469.179, as amended. EDAax Increment Financing District No. 1-16 (Gardenworld). for the EDATax Increment Financing District No. 1-16 (Gardenworld), adopted by the EDA on 3 471678v6 CT165-52 December 8, 2015 and approved by the City on January 6, 2016, as it may be amended from time to time. County or State board of equalization, the commissioner of revenue of the State, or any State or federal court. terminates, which is estimated to be after eight years after receipt of the first Tax Increment. to be excused as a result thereof which are the direct result of strikes, other labor troubles, prolonged adverse weather or acts of God, 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 acts of any federal, State or local governmental unit (other than the EDA in exercising its rights under this Agreement) which directly result in delays. 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 Property Exhibit B. \[Intentionally Omitted\] 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 word 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 undertaking on its part herein contained: 4 471678v6 CT165-52 (a)The EDA is a public body corporate and politic under the laws of Minnesota and has the power to enter into this Agreement and carry out its obligations hereunder. (b)The individuals executing this Agreement and related documents on behalf of the EDA have the authority to do so and bind the EDA by their actions. (c)The activities of the EDA authorized herein are undertaken to facilitate the development of land within the Development District and the TIF District. (d)The TIF District is an economic development tax increment financing district within the meaning of the TIF Act and is subject to the limitations on use specified in section 469.176, subd. 4c of the TIF Act. Section 2.2. Representations and Warranties by the Developer. The Developer represents and warrants that: (a)The Developer is a Minnesota corporation in good standing and has the power to enter into this Agreement and carry out its obligations hereunder. (b)The persons executing this Agreement and related agreements on behalf of the Developer have the authority to bind the Developer by their actions. (c)The Developer has received no notice or communication from any local, State, or federal official that the activities of the Developer or the EDA on the Property or in the Development District may be or will be in violation of any environmental law or regulation. The Developer is aware of no facts the existence of which would cause the Developer to be in violation of or give any person a valid claim under any local, State, or federal environmental law, regulation, or review procedure. (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 of any organizational document or other restriction of the Developer 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 to which it will be bound to finance construction of the Minimum Improvements or constitutes a default under any of the foregoing. (e)The Developer is not ineligible under the Business Subsidy Act to receive the business subsidy provided for in this Agreement. (f)In the event the Property is conveyed to the Developer, the Developer will construct, operate, use and maintain the Minimum Improvements in accordance with the terms of this Agreement, the Program, the TIF Plan, the Property Deed, all local, State and federal laws and regulations including, but not limited to, environmental, zoning, building code, public health laws and regulations, and, through the Termination Date, the provisions of section 5 471678v6 CT165-52 469.176, subd. 4c of the TIF Act regarding allowable uses within economic development TIF districts. (g)The Developer has analyzed the economics of the project and has determined that acquisition of the Property and construction of the Minimum Improvements described in this Agreement would not occur but for the tax increment financing assistance being provided hereunder. (h)The Developer did not obtain a building permit for any portion of the Minimum Improvements or for any other improvements on the Property before the date of approval of the TIF Plan by the City. (i)The Developer will apply for and use all reasonable efforts to obtain in a timely manner all permits, licenses and approvals required by the City and will meet requirements of all applicable City, State and other laws and regulations which must be met before the Minimum Improvements may be lawfully constructed and used for their intended purpose. (j)The Developer shall promptly advise the EDA in writing of all litigation or claims affecting any part of the Property or the Minimum Improvements and all written complaints and charges made by any governmental authority materially affecting the Property or the Minimum Improvements or materially affecting the Developer or its business which may delay or require changes in construction of the Minimum Improvements. ARTICLE III Acquisition and Conveyance of Property Section 3.1. Acquisition and Conveyance of the Property. The EDA has entered into a purchase agreement with Glendenning Farms, L.P., WAG Farms, Inc. and Joan Glendenning Kennedy Fam EDA and the Developer have entered into the Purchase Agreement whereby the EDA intends to sell and the Developer intends to buy the Property. The Purchase Agreement is subject to various contingencies and other terms and conditions, including the right of the Developer to assign the Purchase Agreement to the Assignee with written notice to the EDA performance of their respective obligations under this Agreement is contingent on the fulfillment of the terms of the Purchase Agreement and acquisition of the Property by the Developer. If the EDA and Developer or the Assignee have not closed on the sale of the Property by May 6, 2016, this Agreement shall be null and void and of no further force and effect. Section 3.2. Financing. Prior to the EDA being obligated to convey the Property to the Developer, the Developer agrees to submit to the EDA evidence of a commitment for financing which is adequate, in the EDA reasonable opinion, for the construction of the Minimum Improvements. If the EDA finds that the financing complies with the terms of this Section 3.2 and is sufficiently committed and adequate in amount to provide for the construction of the Minimum Improvements, the EDA shall notify the Developer in writing of its approval. Such approval shall not be unreasonably withheld. If the EDA rejects the evidence of financing as 6 471678v6 CT165-52 inadequate, it shall do so in writing specifying the basis for the rejection and the Developer shall have 15 days thereafter, but not later than May 6, 2016, to submit a commitment for additional or alternate financing acceptable to the EDA. If the Developer fails to submit a commitment for financing acceptable to the EDA within said period of time, the EDA may notify the Developer of its failure to comply with the requirement of this Section 3.2 and may terminate this Agreement at its sole discretion. If for any reason the Developer is unable to obtain adequate financing for the Minimum Improvements within the time period provided herein, the Developer shall notify the EDA and may terminate this Agreement at its sole discretion. ARTICLE IV Construction of Minimum Improvements Section 4.1. Construction of Minimum Improvements. The Developer agrees that it will construct the Minimum Improvements on the 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 EDA 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 City 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) The Developer has submitted and the EDA has approved the Preliminary Plans. After execution of this Agreement, but at least 30 days prior to construction, the Developer shall submit dated Construction Plans to the EDA. 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 EDA will approve the Construction Plans if they (1) conform to the Preliminary Plans; (2) conform to all applicable federal, State and City 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 EDA shall relieve the Developer of the obligation to comply with the terms of this Agreement, the terms of any applicable federal, State and City laws, ordinances, rules and regulations in the construction of the Minimum Improvements. No approval by the EDA 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 EDA, 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 EDA 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 EDA, the EDA shall approve the proposed change. Such change in the Construction Plans shall be deemed approved by 7 471678v6 CT165-52 the EDA unless rejected, in whole or in part, by written notice by the EDA to the Developer setting forth in detail the reasons therefor. Such rejection shall be made within 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 by no later than July 10, 2016. Subject to Unavoidable Delays, the Developer shall have achieved Substantial Completion of the Minimum Improvements by no later than June 30, 2017. All work with respect to the Minimum Improvements to be constructed or provided by the Developer on the Property shall be in conformity with the Construction Plans. The Developer shall make such reports to 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 4.4. 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 EDA will furnish the Developer with a Certificate of Completion and Release of Forfeiture in the form of Exhibit C attached 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 and Release of Forfeiture shall only be issued after issuance of a certificate of (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 Property. If the EDA shall refuse or fail to provide such certification in accordance with the provisions of this section 4.4, the EDA 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 EDA, for the Developer to take or perform in order to obtain such certification. Section 4.5. Restrictions on Use; Land Use Approvals. The Developer, for itself and its successors and assigns, agrees to devote the Property and the Minimum Improvements only to such The City has granted certain land use approvals for the Property and the Minimum Improvements, including a plat and conditional use permit. The Developer agrees to construct and to operate the Minimum Improvements in accordance with those approvals. Section 4.6. Reconstruction of Minimum Improvements. The Developer agrees to notify the EDA immediately in the case of damage exceeding $100,000 in amount to, or destruction of, the Minimum Improvements resulting from fire or other casualty. In such event, the Developer will, at its option, forthwith repair, reconstruct, and restore the Minimum Improvements to substantially the same or an improved condition or value as existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction, and 8 471678v6 CT165-52 restoration, the Developer will apply the net proceeds of any insurance relating to such damage received by the Developer to the payment or reimbursement of the costs thereof. In the event the Developer elects not to repair, reconstruct or restore the Minimum Improvements, Developer shall nonetheless be subject to the requirements of the Business Subsidy Act and to the Assessment Agreement through the Termination Date. Section 4.7. Additional City Approvals and Permits. The Developer acknowledges that certain additional approvals and permits must be granted by the City in order for the Developer to implement its plans to construct the Minimum Improvements on the Property. The Developer agrees to pursue at its expense such approvals and permits as are necessary to construct the Minimum Improvements in accordance with all land use approvals, restrictions and other regulations of the City related to the Property and the Minimum Improvements. ARTICLE V Financial Assistance Section 5.1.Financial Assistance. (a) The Developer has represented to the EDA that the cost of acquisition of the Property and construction of the Minimum Improvements exceeds the amount of private financing available and has requested assistance from the EDA. The EDA agrees to offer the financial assistance to the Developer in accordance with this Article V. (b) In , the EDA agrees to convey the Property to the Developer for $929,904, which is $246,216 less . The above price includes payment of all costs and fees required to replat the Property and all area charges, park dedication fees and water and sewer connection fees due to the City regarding the Property. Section 5.2. Conditions Precedent to Conveyance of Property. Notwithstanding anything in this Agreement to the contrary, the EDA shall not be obligated to convey the Property to the Developer until all of the following conditions precedent have been satisfied: (a)The EDA has acquired the Property from the Owner; (b)The Developer has submitted a commitment for financing pursuant to section 3.2 of this Agreement which is adequate, in the EDAtion of the Minimum Improvements; (c)The Developer and the EDA have executed this Agreement; (d)The Assessment Agreement has been fully executed; (e)This Agreement, including the business subsidy agreement, has been approved by the City; 9 471678v6 CT165-52 (f)The Developer is not ineligible for receiving a business subsidy under the Business Subsidy Act; and (g)There has been no Event of Default on the part of the Developer which has not been cured. ARTICLE VI Insurance Section 6.1. Required Insurance. 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 EDA, furnish the EDA with proof of payment of premiums on: (a)- Risk -- Completed Minimum Improvements at the date of completion, and with coverage available in non- reporting form on the so- (b)Comprehensive general liability insurance (including operations, contingent liability, operations of subcontractors, completed operations and contractual liability insurance) 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 (c) The policies of insurance required pursuant to clauses (i) and (ii) 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 clause (i) above shall contain an agreement of the insurer to give not less than 30 the EDA in the event of cancellation of such policy or change affecting the coverage thereunder. 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. Upon written request by the EDA, the Developer agrees to deposit 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. 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 EDA 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 EDA evidence satisfactory to the EDA 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 10 471678v6 CT165-52 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 Act Requirements Section 7.1. Compliance with Business Subsidy Provisions. The EDA and the Developer agree and represent to each other as follows: (a)The subsidy provided to the Developer consists of conveyance of the Property with a fair market value of $1,176,120 for $929,904, which represents a subsidy of $246,216, and which price includes payment of all costs and fees required to replat the Property and all area charges, park dedication fees and water and sewer connection fees due to the City regarding the Property. The total value of the business subsidy provided by the EDA to the Developer is $246,216. This subsidy constitutes a forgivable loan from the EDA to the Developer. (b)The public purposes of the subsidy are to promote development of the Minimum Improvements on the Property, 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 Property; to maintain the Minimum Improvements for at least five years as described in clause (f) below; and to create the jobs and pay wage levels in accordance with sections 7.2(a) and (b). (d)If the goals described in clause (c) above are not met, the Developer must make the payments to the EDA described in section 7.3. (e)The subsidy is needed because the cost of land acquisition, building construction, site preparation and other needed improvements makes development of the Property with the Minimum Improvements financially infeasible without public assistance, all as determined by the EDA upon approval of the TIF Plan. (f)The Developer must continue operation of the Minimum Improvements for at least five years after the date of issuance of the Certificate of Completion. (g)The Developer does not have a parent entity. (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 acquisition of the Property, site preparation of the Property, or construction of the Minimum Improvements. 11 471678v6 CT165-52 Section 7.2. Job and Wage Goals; Qualified Facility. (a) Within two years after the date of created at least one new full-time equivalent job on the 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 one new full-time equivalent job to be no less than $11.60 per hour, exclusive of benefits. Notwithstanding anything to the contrary herein, if the wage and job goals described in this section 7.2(a) are met by the Compliance Date, those goals are deemed satisfied despite the ing obligations under Sections 7.1(f), 7.2(b) and 7.4. The EDA may, after a public hearing, extend the Compliance Date by up to one year, provided that nothing in this Section 7.2 will be construed to limit the EDA (b) Section 469.176, subd. 7 of the TIF Act requires that for the Property to be included within the TIF District, 85 percent by square foot of the Minimum Improvements must consist of a qualified manufacturing facility or qualified distribution facility or both. In order to be a qualified facility, the Developer agrees to pay 90 percent or more of all the employees at the Property at a rate equal to or greater than 160 percent of the then-current federal minimum wage for individuals over the age of 20. This requirement is in addition to the wage and job goals in subparagraph (a) above and is an obligation which extends through the Termination Date. Section 7.3. Remedies. If the Developer fails to meet the goals described in Section 7.1(c), the Developer shall repay to the EDA upon written demand from the EDA a pro rata share of the business subsidy authorized under this Agreement, and interest on the subsidy 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 new jobs required under Section 7.2(a), the new jobs required less the new jobs created, divided by the new jobs required; (ii) if the failure relates to wage levels required under Sections 7.1(a) and (b), the number of jobs with a required wage level less the number of jobs that meet the required wage level, divided by the number of jobs with a required wage level; (iii) if the failure relates to maintenance of the Minimum Improvements in accordance with Section 7.1(f), 60 less the number of months of operation as the Minimum Improvements (where any month in which the Minimum Improvements are 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 date the Minimum Improvements cease operation as determined by the EDA, 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 7.3 shall be construed to limit the EDA X hereof. In addition to the remedy described in this Section 7.3 and any other remedy available to the EDA for failure to meet the goals stated in Section 7.1(c), the Developer agrees and understands 12 471678v6 CT165-52 that it may not a receive a business subsidy from the EDA 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 7.3, whichever occurs first. Section 7.4. 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 (i) the date the goals stated Section 7.1(c) are met; (ii) 30 days after expiration of the five-year period described in Section 7.1(f); or (iii) if the goals are not met, the date the subsidy is repaid in accordance with Section 7.3. The report must comply with section 116J.994, subdivision 7 of the Business Subsidy Act. 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 7.4, 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 7.4 is $1,000. ARTICLE VIII Use of Tax Increment; Collection of Taxes; Assessment Agreement Section 8.1. Use of Tax Increment. The EDA shall be free to use any Tax Increment paid to it with respect to the TIF District for any purpose for which such increment may lawfully be used, pursuant to the provisions of State law, and the EDA shall have no obligation to the Developer with respect to the use of such Tax Increment. Section 8.2. Right to Collect Delinquent Taxes. The Developer acknowledges that the EDA is providing substantial aid and assistance in furtherance of the development of the Property. The Developer understands the EDA specified in this Agreement is directly dependent upon the prompt and timely payment of real estate taxes. 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 it is also obligated by reason of this Agreement to pay before delinquency all real estate taxes assessed against the Property and the Minimum Improvements. The Developer acknowledges that this obligation creates a contractual right on behalf of the EDA 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 EDA shall also be entitled to recover its costs, expenses, and attorney fees. Section 8.3. Taxes; Minimum Market Value. 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 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 Property or raise the unconstitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings; and (3) it will not cause a 13 471678v6 CT165-52 reduction in the Minimum Market Value assessed in respect of the Minimum Improvements or the Property below the Minimum Market Value described in section 8.4(a) of this Agreement through: (a) willful destruction of the Minimum Improvements or any part thereof; (b) failure to reconstruct damaged or destroyed property pursuant to section 4.6of this Agreement; (c) a request to the County assessor to reduce the Minimum Market Value of all or any portion of the Minimum Improvements or the Property; (d) a petition to the board of equalization of the County to reduce the Minimum Market Value of all or any portion of the Minimum Improvements or the 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 Minimum Improvements or the 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 Minimum Improvements or the Property; (g) an application to the commissioner of revenue of the State or to any local taxing jurisdiction requesting an abatement or deferral of real property taxes on the Minimum Improvements or the Property; (h) a transfer of the Minimum Improvements or the Property, or any part thereof, to an entity exempt from the payment of real property taxes under State law; or (i) 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. Section 8.4. Assessment Agreement. (a) At the time of execution of this Agreement, the EDA and the Developer shall execute an Assessment Agreement for the Property and Minimum Improvements. The Assessment Agreement shall specify a Minimum Market Value of $2,728,500 as of January 2, 2017 for taxes payable beginning in 2018 through the Termination Date, notwithstanding any failure to complete the Minimum Improvements on the Property by said date or any failure to reconstruct the Minimum Improvements after damage or destruction before the Termination Date. (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 Minimum Improvements or the Property in excess of the Minimum Market Value nor prohibit the Developer from seeking through the exercise of legal or administrative remedies a reduction in any increase in the market value established pursuant to 14 471678v6 CT165-52 this Agreement; provided, however, that the Developer shall not seek a reduction of such market value below the Minimum Market Value for the Minimum Improvements or the Property set forth in the Assessment Agreement in any year so long as such Assessment Agreement shall remain in effect. The Assessment Agreement for the Minimum Improvements and the Property shall remain in effect until the Termination Date; provided that if at any time before the Termination Date the Assessment Agreement for the Minimum Improvements or the Property is found to be terminated or unenforceable by any Tax Official or court of competent jurisdiction, the Minimum Market Value of the Property described in this section 8.4 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 8.4 for the Minimum Improvements or the Property is an obligation under this Agreement as well as under the Assessment Agreement, and is enforceable by the EDA against the Developer, its successors and assigns, in accordance with the terms of this Agreement and the Assessment Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Developer shall not be precluded from contesting the Minimum Market Value of the Minimum Improvements and the Property if the Minimum Improvements or the Property, or any substantial portion thereof, is acquired by a public entity through eminent domain prior to the Termination Date. Section 8.5. Restrictions on Use in Economic Development TIF District. (a) TIF District No. 1-16 (Gardenworld) is an economic development tax increment financing district within the meaning of the TIF Act and is subject, among other things, to the limitations of the types of uses permitted within the TIF District specified in section 469.176, subd. 4c of the TIF Act. Prior to the Termination Date, no more than 15 percent of the square footage of the Minimum Improvements may be used for a purpose other than: (1)The manufacturing or production of tangible personal property, including processing resulting in the change in condition of the property; (2)Warehousing, storage, and distribution of tangible personal property, excluding retail sales; (3)Research and development related to the activities listed in clause (1) or (2); (4)Telemarketing if that activity is the exclusive use of the property; (5)Tourism facilities; (6)Qualified border retail facilities; or (7)Space necessary for and related to the activities listed in clauses (1) to (6). The Developer understands and acknowledges that a violation of the above limitations on use may cause the termination of the TIF District and constitutes an Event of Default under this Agreement. The Developer agrees to notify the EDA immediately if at any time prior to the Termination Date more than 15 percent of the Minimum Improvements are occupied by any use other than one or more of the above uses. (b) The Developer acknowledges that the reason for requiring that the Minimum Improvements be used predominately for one or more of the uses specified in Section 8.5(a) is to development tax increment financing district. If at any time prior to the Termination Date the 15 471678v6 CT165-52 Minimum Improvements cease to be used in conformance with the requirements of Section 8.5(a), the EDA may declare an Event of Default. The Developer agrees to indemnify, defend and hold harmless the EDA for any damages or costs resulting from a failure to limit the Minimum Improvements to the uses allowed in an economic development tax increment financing district. Those damages or costs may include any tax increment the EDA may be required or agrees to repay as a result of any action taken under Section 469.1771 of the TIF Act for violation of said Act relating to disqualification of the TIF District or any other costs associated with any compliance audit. ARTICLE IX Restrictions on Sale or Encumbrance of Minimum Improvements; Assignment Section 9.1. Prohibition Against Sale of Minimum Improvements. The Developer represents and agrees that its use of the Property and its other undertakings pursuant to the Agreement, are, and will be, used for the purpose of construction of the Minimum Improvements on the Property and not for speculation in land holding. Developer represents and agrees that, prior to the issuance of a Certificate of Completion regarding the Minimum Improvements, there shall be no Sale of the Property or the Minimum Improvements constructed thereon nor shall the Developer suffer any such Sale to be made, without the prior written approval of the EDA and except as permitted by this Article IX. As a condition of approval of any such sale, the EDA shall require, at a minimum, that the proposed transferee shall have entered into an agreement whereby the transferee expressly assumes all of the D Agreement, including compliance with the Business Subsidy Act and the Assessment Agreement. Any such agreement shall include the EDA as a party and otherwise be in form and substance acceptable to the EDA. Section 9.2. Limitation Upon Encumbrance of Property. With the exception of the type of encumbrances placed in the ordinary course of lending and development of the Property, prior to issuance of the Certificate of Completion, the Developer agrees not to engage in any financing or any other transaction creating any mortgage or other encumbrance or lien upon the Property or Minimum Improvements, whether by express agreement or operation of law, or suffer any encumbrance or lien to be made on or attached to the Property or Minimum Improvements other than the liens or encumbrances approved by the EDA, which approval shall not be unreasonably withheld or delayed if the EDA determines that such lien or encumbrance will not threaten its security under this Agreement or the Assessment Agreement. Section 9.3. Assignment; Continuing Developer Obligations. The Developer intends to assign this Agreement to the Assignee and agrees to give written notice of the assignment to the EDA. The EDA consents to such assignment. Notwithstanding any assignment by the Developer to the Assignee or anything else herein, the Developer shall remain bound by its obligations under Sections 8.2, 8.4(b), 8.5 and Article VII of this Agreement and the EDA shall have the right to pursue any remedies it has against either the Developer or the Assignee or both to enforce its rights or collect any monies owed to the EDA under those sections of this Agreement. 16 471678v6 CT165-52 ARTICLE X Events of Default Section 10.1. 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 or the Assignee to acquire the Property in fee by May 6, 2016 or failure to satisfy any other condition precedent specified in section 5.2 of this Agreement; (b)Failure by the Developer to obtain all approvals and permits from the City and other entities necessary in order to construct the Minimum Improvements; (c)Failure by the Developer to obtain private financing for construction of the Minimum Improvements as specified in section 3.2 of this Agreement; (d)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 or waived by the Developer and the EDA; (e)Failure of the Developer to pay real estate taxes or special assessments on the Property or Minimum Improvements as they become due; (f)Failure by the Developer to comply with the requirements of this Agreement regarding the Business Subsidy Act or with the wage requirements of Section 469.176, subd. 7 of the TIF Act; (g)Prior to the Termination Date, appeal or challenge by the Developer of the Minimum Market Value of the Property or Minimum Improvements under this Agreement or the Assessment Agreement, except as otherwise provided in Article VIII of this Agreement; (h)Sale of the Property or the Minimum Improvements, or any portion thereof, by the Developer in violation of Article IX of this Agreement and without written permission by the EDA; (i)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; (j)Prior to the Termination Date, there occurs with regard to the Property or the Minimum Improvements a violation of section 469.176, subd. 4c of the TIF Act regarding permitted uses within an economic development tax increment financing district; (k)Failure by the Developer to use the Property in accordance with the terms and conditions of the Property Deed; or 17 471678v6 CT165-52 (l)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, including but not limited to any action necessary for the establishment of the TIF District. Section 10.2. Remedies on Default. Whenever any Event of Default referred to in section 10.1 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 from the receipt of Notice 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 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 further performance pursuant to this Agreement; (c)If the default occurs prior to completion of the Minimum Improvements, the EDA may withhold the Certificate of Completion and Release of Forfeiture; (d)Seek repayment of some or all of the financial assistance pursuant to Article VII of this Agreement and the Business Subsidy Act and Section 8.5(b) of this Agreement; (e)Enforce the Assessment Agreement; and (f)Take whatever legal or administrative action, including action under Section 9.3 of this Agreement, which may appear necessary or desirable to the non-defaulting party to collect any payments due under this Agreement, including reimbursement of the financial assistance previously granted, or to enforce performance and observance of any obligation, agreement, or covenant of the defaulting party under this Agreement or the Assessment Agreement. Section 10.3. Revesting Interest in the EDA Upon Happening of Event of Default Subsequent to Conveyance to Developer. In the event that subsequent to conveyance of the 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 fails to begin construction of the Minimum Improvements by such time as permitted under this Agreement; or (b) subject to Unavoidable Delays, the Developer 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 18 471678v6 CT165-52 construction work, and any such failure, abandonment, or suspension shall not be cured, ended, or remedied within 90 days after written demand from the EDA to the Developer to do so; or (c) the Developer shall fail to pay real estate taxes or assessments on the Minimum Improvements when due, or shall place thereon any encumbrance or lien unauthorized by this assessments shall not have been paid, or the encumbrance or lien removed or discharged or provision satisfactory to the EDA made for such payment, removal, or discharge, within 30 days after written demand by the EDA 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 EDA other lien to remain undischarged and unsatisfied during the period of such contest and any appeal, but only if the Developer provides the EDA with a bank letter of credit or other security in the amount of the lien, in a form satisfactory to the EDA, pursuant to which the bank will pay to lienholder 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 EDA informed respecting the status of such defense; or (d) there is, in violation of Article IX of this Agreement, any Sale of all or any portion of the Minimum Improvements on the Property prior to issuance of the Certificate of Completion and Release of Forfeiture, and such violation shall not be cured within 90 days after written demand by the EDA to the Developer, then the EDA shall have the right to re-enter and take possession of the Property and to terminate and revest in the EDA the interest of the Developer in the Property; provided, however, that any exercise by the EDA 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 encumbrance specifically and previously authorized by the EDA in writing under this Agreement or any rights or interests provided in this Agreement for the protection of the holders of an approved encumbrance. Upon revesting the Property in the name of the EDA, the EDA shall be entitled to sell the Property, subject to any approved encumbrance, and shall pay to the Developer the proceeds from any resale of the Property, after first repaying the outstanding Business Subsidy owed to the EDA by the Developer and after reimbursing itself for all costs of modifying the Program, establishing the TIF District and its related Administrative Expenses and the cost of revesting title to the Property in the name of the EDA. Section 10.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to the any party in this Agreement 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 19 471678v6 CT165-52 order to entitle the EDA 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 XI of this Agreement. Section 10.5. No Additional Waiver Implied by One Waiver. In the event any covenant or obligation contained in this Agreement should be breached by any party and thereafter waived by another 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 XI Additional Provisions Section 11.1. Conflict of Interests; EDA Representatives Not Individually Liable. The EDA and the Developer, to the best of respective knowledge, represent and agree that no member, official, or employee of the EDA has or shall have any personal interest, direct or indirect, in this Agreement, nor has or shall any such member, official, or employee participate in any decision relating to this Agreement which affects his or her personal interests or the interests of any corporation, partnership, or association in which he or she is directly or indirectly interested. No member, 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 by the EDA, or for any amount which may become due to the Developer or successor or on any obligations under the terms of this Agreement. Section 11.2. Release and Indemnification Covenants. (a) Except for any negligent act of the following named parties, the Developer hereby releases from and covenants and agrees that the EDA, and its governing body members, officers, agents, servants, and employees shall not be liable for, and hereby agrees to indemnify and hold harmless the EDA, and its governing body members, officers, agents, servants, and employees against any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Minimum Improvements. (b) Except for any willful misrepresentation or any willful or wanton misconduct or negligence of the following named parties, the Developer hereby agrees to protect and defend the EDA, and its governing body members, officers, agents, servants, and employees, now or forever, and hereby further agrees to hold the aforesaid harmless from any claim, demand, suit, action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising from this Agreement, or the transactions contemplated hereby or the acquisition, construction, installation, ownership, and operation of the Property or Minimum Improvements. (c) Except for any negligent act of the following named parties, the EDA, and its governing body members, officers, agents, servants, and employees shall not be liable for any damage or injury to the persons or property of the Developer or its partners, officers, agents, servants or employees or any other person who may be about the Property or Minimum Improvements due to any act of negligence of any person. 20 471678v6 CT165-52 (d) All covenants, stipulations, promises, agreements, and obligations of the EDA contained herein shall be deemed to be the covenants, stipulations, promises, agreements, and obligations of the EDA, and not of any governing body member, officer, agent, servant, or employee of the EDA in his or her individual capacity. Section 11.3. Titles of Articles and Sections. Any titles of the several parts, articles, and sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 11.4. Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand, or other communication under this Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by United States registered or certified mail, postage prepaid, return receipt requested, or delivered personally to: 21 471678v6 CT165-52 (a) in the case of the EDA: Cottage Grove Economic Development Authority 12800 Ravine Parkway South Cottage Grove, MN 55016 Attn: Charlene Stevens, EDA Executive Director with a copy to: Ron Batty Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (b) in the case of the Developer: Gardenworld, Inc. 788 Hampden Avenue St. Paul, MN 55114 Attn: Dave Van der Sman 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 11.4. Section 11.5. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 11.6. Recording. The EDA may record this Agreement and any amendments thereto among the County land records. Section 11.7. Attorney Fees. Whenever any Event of Default occurs on the part of the Developer and if the EDA shall employ attorneys or incur other expenses for the collection of payments due or to become due, or for the enforcement of performance or observance of any obligation or agreement on the part of the Developer under this Agreement, the Developer agrees that it shall, within 10 days of written demand by the EDA, pay to the EDA the reasonable fees of such attorneys and such other expenses so incurred by the EDA. Section 11.8. Governing Law; Venue. This Agreement shall be construed in accordance with the laws of Minnesota. Any dispute arising from this Agreement shall be heard in the State or federal courts of Minnesota, and all parties waive any objection to the jurisdiction thereof, whether based on convenience or otherwise. Section 11.9. Disclaimer of Relationship. The Developer acknowledges that nothing in this Agreement nor any act of the EDA shall be deemed or construed by the Developer or by any third party 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 11.10. Entire Agreement. Except with regard to the Purchase Agreement and the sale of the Property by the EDA to the Developer pursuant to same, this Agreement constitutes 22 471678v6 CT165-52 the entire agreement between the parties pertaining to its subject matter and it supercedes all prior contemporaneous agreements, representations, and understandings of the parties pertaining to the subject matter of this Agreement. This Agreement may be modified, amended, terminated, or waived, in whole or in part, only by a writing signed by all of the parties. Notwithstanding the ty and Minimum Improvements or any agreement, permit or approval by or between the Developer and the City regarding the land use regulations applicable to the Property and the Minimum Improvements. *********************** 23 471678v6 CT165-52 COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY By: _________________________________ Myron Bailey, President By: _________________________________ Charlene R. Stevens, Executive Director STATE OF MINNESOTA ) ) ss. COUNTY OF ___________ ) The foregoing instrument was acknowledged before me this ____ day of ________________, 2016, by Myron Bailey and Charlene R. Stevens, the 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 Authority. ____________________________________ Notary Public 24 471678v6 CT165-52 GARDENWORLD, INC. By: _________________________________ Dave Van der Sman. Chief Executive Officer STATE OF MINNESOTA ) ) ss. COUNTY OF ___________ ) The foregoing instrument was acknowledged before me this ____ day of ____________, 2016, by Dave Van der Sman, the Chief Executive Officer of Gardenworld, Inc., a Minnesota corporation, on behalf of the corporation. Notary Public 25 471678v6 CT165-52 EXHIBIT A TO DEVELOPMENT AGREEMENT LEGAL DESCRIPTION OF THE PROPERTY Real property located in the County of Washington, State of Minnesota, legally described as follows: That part of Outlot B, GLENGROVE INDUSTRIAL PARK 4TH ADDITION, according to the recorded plat thereof, Washington County, Minnesota described as follows: Commencing at the northwest corner of Outlot A, said GLENGROVE INDUSTRIAL PARK 4TH ADDITION; thence on an assumed bearing of South 89 degrees 48 minutes 39 seconds West along the north line of said Outlot B, a distance of 434.73 feet to the point of beginning of the land to be described; thence South 00 degrees 07 minutes 51 seconds, a distance of 380.01 feet; thence South 89 degrees 48 minutes 39 seconds West, a distance of 1085.02 feet to the west line of said Outlot B; thence North 00 degrees 07 minutes 30 seconds East along said west line, a distance of 101.54 feet; thence 438.29 feet northeasterly along a tangential curve, concave to the southeast, having a radius of 280.00 feet and a central angle of 89 degrees 41 minutes 09 seconds; thence North 89 degrees 48 minutes 39 seconds along said north line, a distance of 806.59 feet to the point of beginning. A-1 471678v6 CT165-52 EXHIBIT B TO DEVELOPMENT AGREEMENT \[INTENTIONALLY OMITTED\] B-1 471678v6 CT165-52 EXHIBIT C TO DEVELOPMENT AGREEMENT FORM OF CERTIFICATE OF COMPLETION AND RELEASE OF FORFEITURE WHEREAS, the Cottage Grove Economic Development Authority, a public body corporate and politic under the laws of Minneso, a Minnesota limited liability company to that certain Contract for Private Development by and between the Grantor and the Grantee dated the ____ day of _____________, 2016, and recorded in the office of the Washington County _________________, Minnesota on __________________ as Document No. __________, which Contract for Private Development contained certain covenants and restrictions regarding completion of the Minimum Improvements; and WHEREAS, the land to which the Contract for Private Development applies (the 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, with respect to the Property, all building construction and other physical improvements specified to be done and made by the Grantee have been completed and the above covenants and conditions in said 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 Washington County _________ 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 with respect to the Property. Dated: _______________, 2016. COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY By: _________________________________ Myron Bailey, President By: _________________________________ Charlene R. Stevens, Executive Director C-1 471678v6 CT165-52 STATE OF MINNESOTA ) ) ss. COUNTY OF ___________ ) The foregoing instrument was acknowledged before me this ____ day of ________________, 2016, by Myron Bailey and Charlene R. Stevens, the 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 Authority. ____________________________________ Notary Public This instrument was drafted by: Kennedy & Graven, Chartered (RHB) 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337-9300 C-2 471678v6 CT165-52 EXHIBIT A Legal Description of Property That part of Outlot B, GLENGROVE INDUSTRIAL PARK 4TH ADDITION, according to the recorded plat thereof, Washington County, Minnesota described as follows: Commencing at the northwest corner of Outlot A, said GLENGROVE INDUSTRIAL PARK 4TH ADDITION; thence on an assumed bearing of South 89 degrees 48 minutes 39 seconds West along the north line of said Outlot B, a distance of 434.73 feet to the point of beginning of the land to be described; thence South 00 degrees 07 minutes 51 seconds, a distance of 380.01 feet; thence South 89 degrees 48 minutes 39 seconds West, a distance of 1085.02 feet to the west line of said Outlot B; thence North 00 degrees 07 minutes 30 seconds East along said west line, a distance of 101.54 feet; thence 438.29 feet northeasterly along a tangential curve, concave to the southeast, having a radius of 280.00 feet and a central angle of 89 degrees 41 minutes 09 seconds; thence North 89 degrees 48 minutes 39 seconds along said north line, a distance of 806.59 feet to the point of beginning. C-A-1 471678v6 CT165-52 EXHIBIT D TO DEVELOPMENT AGREEMENT FORM OF ASSESSMENT AGREEMENT this ___ day of __________, 2016, by and between the Cottage Grove Economic Development Authority, a public body corporate and politic under the laws of Minnesota (the EDAGardenworld, Inc., a Minnesota corporation WITNESSETH: WHEREAS, on or before the date hereof, the EDA and the Owner have entered into a ) concerning the property legally WHEREAS, pursuant to the Agreement, the Owner has agreed to construct a greenhouse/warehouse/office WHEREAS, the EDA and the Owner 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 EDA and the County Assessor for Washington County, Minnesota have reviewed the Plans for the Minimum Improvements which the Owner has agreed to construct on the Property pursuant to the Agreement. NOW, THEREFORE, the parties to this Assessment Agreement, in consideration of the promises, covenants and agreements made herein and in the Agreement by each to the other, do hereby agree as follows: 1. The parties agree that the Minimum Market Value of the Property and the Minimum Improvements shall be $2,728,500 as of January 2, 2017 for taxes payable beginning in 2018, notwithstanding any failure to complete construction of the Minimum Improvements by such 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 has the meaning given to it under the Agreement. 3. This Assessment Agreement shall be promptly recorded against the Property with a copy of Minnesota Statutes, section 469.177, Subd. 8 set forth in Exhibit B hereto. 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 Agreement. Unless the context indicates clearly to the contrary, the terms used in this Assessment Agreement shall D-1 471678v6 CT165-52 have the same meaning as the terms used in the 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 represents and warrants 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 any provision of this Assessment Agreement shall be 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, 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 but one and the same instrument. 11. This Assessment Agreement shall be governed by and construed in accordance with the laws of Minnesota. ********* This instrument was drafted by: Kennedy & Graven, Chartered (RHB) 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337-9300 D-2 471678v6 CT165-52 COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY By: _________________________________ Myron Bailey, President By: _________________________________ Charlene R. Stevens, Executive Director STATE OF MINNESOTA ) ) ss. COUNTY OF ___________ ) The foregoing instrument was acknowledged before me this ____ day of ________________, 2016, by Myron Bailey and Charlene R. Stevens, the 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 Authority. ____________________________________ Notary Public D-3 471678v6 CT165-52 GARDENWORLD, INC. By: _________________________________ Dave Van der Sman, Chief Executive Officer STATE OF MINNESOTA ) ) ss. COUNTY OF ___________ ) The foregoing instrument was acknowledged before me this ____ day of _______________, 2016, by Dave Van der Sman, the Chief Executive Officer of Gardenworld, Inc., a Minnesota corporation, on behalf of the corporation Notary Public D-4 471678v6 CT165-52 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, hereby certifies that the market value assigned to such land and improvements at the property legally described on Exhibit A attached hereto shall be not less than Two Million Seven Hundred Twenty-Eight Thousand Five Hundred Dollars ($2,728,500) as of January 2, 2017 for taxes payable beginning in 2018 until termination of this Assessment Agreement. _______________________________________ County Assessor for Washington County, Minnesota STATE OF MINNESOTA ) ) ss. COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me this ______ day of ________________, 2016, by ________________, the County Assessor, Washington County, Minnesota. ________________________________________ Notary Public D-5 471678v6 CT165-52 EXHIBIT A TO ASSESSMENT AGREEMENT The Property is legally described as follows: That part of Outlot B, GLENGROVE INDUSTRIAL PARK 4TH ADDITION, according to the recorded plat thereof, Washington County, Minnesota described as follows: Commencing at the northwest corner of Outlot A, said GLENGROVE INDUSTRIAL PARK 4TH ADDITION; thence on an assumed bearing of South 89 degrees 48 minutes 39 seconds West along the north line of said Outlot B, a distance of 434.73 feet to the point of beginning of the land to be described; thence South 00 degrees 07 minutes 51 seconds, a distance of 380.01 feet; thence South 89 degrees 48 minutes 39 seconds West, a distance of 1085.02 feet to the west line of said Outlot B; thence North 00 degrees 07 minutes 30 seconds East along said west line, a distance of 101.54 feet; thence 438.29 feet northeasterly along a tangential curve, concave to the southeast, having a radius of 280.00 feet and a central angle of 89 degrees 41 minutes 09 seconds; thence North 89 degrees 48 minutes 39 seconds along said north line, a distance of 806.59 feet to the point of beginning. D-A-1 471678v6 CT165-52 EXHIBIT B TO ASSESSMENT AGREEMENT Assessment Agreements Section 469.177, subd. 8. . 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. D-B-1 471678v6 CT165-52 ASSESSMENT AGREEMENT this ___ day of __________, 2016, by and between the Cottage Grove Economic Development WITNESSETH: WHEREAS, on or before the date hereof, the EDA and the Owner have entered into a WHEREAS, pursuant to the Agreement, the Owner has agreed to construct a WHEREAS, the EDA and the Owner 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 EDA and the County Assessor for Washington County, Minnesota have reviewed the Plans for the Minimum Improvements which the Owner has agreed to construct on the Property pursuant to the Agreement. NOW, THEREFORE, the parties to this Assessment Agreement, in consideration of the promises, covenants and agreements made herein and in the Agreement by each to the other, do hereby agree as follows: 1. The parties agree that the Minimum Market Value of the Property and the Minimum Improvements shall be $2,728,500 as of January 2, 2017 for taxes payable beginning in 2018, notwithstanding any failure to complete construction of the Minimum Improvements by such date. 1 476859v1 CT165-52 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 has the meaning given to it under the Agreement. 3. This Assessment Agreement shall be promptly recorded against the Property with a copy of Minnesota Statutes, section 469.177, Subd. 8 set forth in Exhibit B hereto. 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 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 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 represents and warrants 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 any provision of this Assessment Agreement shall be 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, 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 but one and the same instrument. 11. This Assessment Agreement shall be governed by and construed in accordance with the laws of Minnesota. ********* 2 476859v1 CT165-52 This instrument was drafted by: Kennedy & Graven, Chartered (RHB) 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337-9300 3 476859v1 CT165-52 COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY By: _________________________________ Myron Bailey, President By: _________________________________ Charlene R. Stevens, Executive Director STATE OF MINNESOTA ) ) ss. COUNTY OF ___________ ) The foregoing instrument was acknowledged before me this ____ day of ________________, 2016, by Myron Bailey and Charlene R. Stevens, the 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 Authority. ____________________________________ Notary Public 4 476859v1 CT165-52 GARDENWORLD, INC. By: _________________________________ Dave Van der Sman, Chief Executive Officer STATE OF MINNESOTA ) ) ss. COUNTY OF ___________ ) The foregoing instrument was acknowledged before me this ____ day of _______________, 2016, by Dave Van der Sman, the Chief Executive Officer of Gardenworld, Inc., a Minnesota corporation, on behalf of the corporation Notary Public 5 476859v1 CT165-52 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, hereby certifies that the market value assigned to such land and improvements at the property legally described on Exhibit A attached hereto shall be not less than Two Million Seven Hundred Twenty-Eight Thousand Five Hundred Dollars ($2,728,500) as of January 2, 2017 for taxes payable beginning in 2018 until termination of this Assessment Agreement. _______________________________________ County Assessor for Washington County, Minnesota STATE OF MINNESOTA ) ) ss. COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me this ______ day of ________________, 2016, by ________________, the County Assessor, Washington County, Minnesota. ________________________________________ Notary Public 6 476859v1 CT165-52