HomeMy WebLinkAbout4.2_Atachment A_Contract Private Development_NP BGO CG Logistics Park LLC 12132021
CT165\57\761874.v3
Execution Copy
CONTRACT
FOR
PRIVATE DEVELOPMENT
BY AND BETWEEN
COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY
AND
NP BGO COTTAGE GROVE LOGISTICS PARK, LLC
This document was drafted by:
KENNEDY & GRAVEN, Chartered
150 South Fifth Street
Suite 700
Minneapolis, MN 55402
(612) 337-9300
CT165\57\761874.v3
TABLE OF CONTENTS
Page
Preamble and Recitals ......................................................................................................................1
ARTICLE I
Definitions
Section 1.1. Definitions................................................................................................................2
Section 1.2. Exhibits ....................................................................................................................5
Section 1.3. Rules of Interpretation .............................................................................................5
ARTICLE II
Representations and Warranties
Section 2.1. Representations by the EDA ....................................................................................5
Section 2.2. Representations and Warranties by the Developer ..................................................6
ARTICLE III
Construction of Minimum Improvements and Public Improvements
Section 3.1. Construction of Minimum Improvements ...............................................................7
Section 3.2. Preliminary and Final Plans .....................................................................................7
Section 3.3. Phased Construction; Commencement and Completion..........................................8
Section 3.4. Certificate of Completion ........................................................................................8
Section 3.5. Reconstruction of Minimum Improvements ............................................................9
Section 3.6. Restrictions on Use ..................................................................................................9
Section 3.7. City Approvals and Permits; Development Agreement ...........................................9
Section 3.8. Construction of Public Improvements .....................................................................9
ARTICLE IV
Financial Assistance; Issuance of Note
Section 4.1. Public Assistance .....................................................................................................9
Section 4.2 Issuance of Pay-As-You-Go Note ...........................................................................9
Section 4.3. Conditions Precedent to Issuance of Note .............................................................10
Section 4.4. Records ..................................................................................................................10
Section 4.5. Lookback Provisions ..............................................................................................11
ARTICLE V
Business Subsidy Act Requirements
Section 5.1. Compliance with Business Subsidy Provisions .....................................................11
Section 5.2. Job and Wage Goals...............................................................................................12
Section 5.3. Remedies ................................................................................................................12
Section 5.4. Reports ...................................................................................................................13
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ARTICLE VI
Insurance
Section 6.1. Required Insurance ................................................................................................13
Section 6.2. Evidence of Insurance ............................................................................................13
ARTICLE VII
Collection of Taxes; Use of Tax Increment; Restrictions on Uses
Section 7.1. Taxes ......................................................................................................................14
Section 7.2. Right to Collect Delinquent Taxes .........................................................................14
Section 7.3. Use of Tax Increment.............................................................................................15
Section 7.4. Restrictions on Use in Economic Development TIF District ................................15
ARTICLE VIII
Restrictions on Sale or Encumbrance of Minimum Improvements; Assignment
Section 8.1. Prohibition Against Sale of Minimum Improvements ...........................................17
Section 8.2. Limitation Upon Encumbrance of Property ...........................................................17
ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined .....................................................................................17
Section 9.2. Remedies on Default ..............................................................................................18
Section 9.3. No Remedy Exclusive............................................................................................19
Section 9.4. No Additional Waiver Implied by One Waiver .....................................................19
ARTICLE X
Additional Provisions
Section 10.1. Conflict of Interests; City Representatives Not Individually Liable .....................19
Section 10.2. Partial Reimbursement of EDA Expenses .............................................................19
Section 10.3. Release and Indemnification Covenants ................................................................20
Section 10.4. Titles of Articles and Sections ...............................................................................20
Section 10.5. Notices and Demands ............................................................................................20
Section 10.6. Counterparts ...........................................................................................................21
Section 10.7. Recording ...............................................................................................................21
Section 10.8. Attorney Fees .........................................................................................................21
Section 10.9. Governing Law; Venue ..........................................................................................21
Section 10.10. Disclaimer of Relationship ....................................................................................21
Section 10.11. Government Data ...................................................................................................21
Section 10.12. Entire Agreement ...................................................................................................22
ACKNOWLEDGMENT
SIGNATURES
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EXHIBIT A Legal Description of the Property
EXHIBIT B List of Preliminary Plan Documents
EXHIBIT C Form of Certificate of Completion
EXHIBIT D Authorizing Resolution
EXHIBIT E Form of Investment Letter
EXHIBIT F Total Development Costs
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CONTRACT FOR PRIVATE DEVELOPMENT
THIS CONTRACT FOR PRIVATE DEVELOPMENT (the “Agreement”) is made as of
the ___ day of ______________, 2021, 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”), and NP
BGO Cottage Grove Logistics Park, LLC, a limited liability company under the laws of Delaware,
having its principal offices at 4825 NW 41st Street, Suite 500, Riverside, Missouri 64150 (the
“Developer”).
RECITALS
WHEREAS, on November 9, 2021, the EDA held a public hearing and approved a business
subsidy for the Developer in accordance with Minnesota Statutes, sections 116J.993 to 116J.995;
and
WHEREAS, on December 14, 2021, the EDA modified the development district program
(the “Program”) for Development District No. 1 (the “Development District”), pursuant to
Minnesota Statutes, sections 469.090 to 469.1082 and approved a tax increment financing plan
(the “TIF Plan”) for Tax Increment Financing District No. 1-20, an economic development tax
increment financing district (the “TIF District”), pursuant to Minnesota Statutes, sections 469.174
to 469.179; and
WHEREAS, on December 15, 2021, the city of Cottage Grove (the “City”) held a public
hearing and approved the modified Program and adopted the TIF Plan and approved the business
subsidy to the Developer; and
WHEREAS, the Developer proposes to develop a large qualified manufacturing and
distribution facility on land it intends to purchase south of 100th Street, North of 105th Street and
east and west of Ideal Avenue; 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 the qualified manufacturing and distribution 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 EDA
and the Developer, each party does hereby represent, covenant and agree with the other as follows:
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ARTICLE I
Definitions
Section 1.1. Definitions. Unless otherwise expressly stated, or unless the context clearly
indicates a different meaning, the words and phrases in the following list of definitions shall, for
purposes of this Agreement, have the meanings indicated:
“Administrative Expenses” means the costs incurred by the 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.
“Agreement” means this Contract for Private Development, as the same may be from time
to time modified, amended, or supplemented.
“Authorizing Resolution” means the EDA resolution, in substantially the form attached
hereto as Exhibit D, which authorizes the issuance of the Note by the EDA Executive Director to
the Developer.
“Available Tax Increment” means 90 percent of the Tax Increment paid by the County to
the EDA with regard to the Minimum Improvements and the Property prior to the Termination
Date.
“Benefit Date” means the date the Certificate of Completion is issued for a Phase of the
Minimum Improvements or the date the Minimum Improvements are occupied by the Developer,
whichever is earlier. There will be a different Benefit Date for each Phase of the Minimum
Improvements.
“Business Subsidy Act” means Minnesota Statutes, sections 116J.993 through 116J.995,
as amended.
“Certificate of Completion” means the certificate, in the general form attached hereto as
Exhibit C, which will be provided to the Developer upon completion of the Minimum
Improvements. A separate Certificate of Completion will be issued for each Phase of the Minimum
Improvements.
“City” means the city of Cottage Grove, Minnesota.
“Commence” means beginning the physical improvement of the Property for the respective
Phase, including demolition, remediation, excavation or footings and, in the case of Phase I, mass
grading or other physical site preparation work.
“Complete” or “Completion” means completion of the respective Phase of the Minimum
Improvements to a degree allowing issuance of a certificate of occupancy by the City’s building
official.
“County” means Washington County, Minnesota.
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“Developer” means, NP BGO Cottage Grove Logistics Park, LLC, a limited liability
company under the laws of the state of Delaware.
“Development Agreement” means the agreement between the City and the Developer
regarding the land use approvals for the project and the plans, specifications and drawings of the
Public Improvements.
“Development Assistance” means the financial assistance to be offered by the EDA to the
Developer as provided for in Article IV of this Agreement.
“Development District” means Development District No. 1.
“Development District Program” or “Program” means the plan for development and
redevelopment of Development District No. 1, as most recently modified.
“Economic Development Authorities Act” or “EDA Act” means Minnesota Statutes,
sections 469.090 through 469.1082, as amended.
“EDA” means the Cottage Grove Economic Development Authority, a public body
corporate and politic under the laws of Minnesota.
“Event of Default” means an action by the Developer listed in Article IX of this Agreement.
“Final Payment Date” means February 1, 2030.
“Final Plans” means the final plans for construction of the Minimum Improvements which
shall be submitted by the Developer pursuant to section 3.2 of this Agreement.
“Interfund Loan” means the interfund loan in an amount of up to $750,000 approved by
the EDA on December 14, 2021 and by the City on December 15, 2021, pursuant to section
469.178, subd. 7 of the TIF Act.
“Minimum Improvements” means the construction on the Property of a multi-phase
qualified manufacturing and distribution facility totaling approximately 3,440,000 square feet.
The Minimum Improvements will be constructed in up to four Phases. After completion of the
Minimum Improvements, the term shall mean the Property as improved by the Minimum
Improvements.
“Minnesota Government Data Practices Act” or “MGDPA” means Minnesota Statutes,
Chapter 13.
“Note” means the pay-as-you-go TIF Note to be issued by the EDA to reimburse the
Developer for the Qualifying Costs, as more fully specified in Article IV of this Agreement.
“Parties” means, collectively, the Developer and the EDA.
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“Payment Date” means August 1, 2024 and every August 1 and February 1 thereafter until
February 1, 2030.
“Phase” or “Phases” means one or more of the up to four Phases over which the Minimum
Improvements will be constructed.
“Preliminary Plans” means, collectively, the plans, drawings, and specifications for the
Minimum Improvements which have been submitted by the Developer and approved by the EDA
and which are attached hereto as Exhibit B.
“Property” means the real property legally described in Exhibit A attached hereto.
“Public Improvement Plans” means the plans, specifications and drawings for the Public
Improvements and which are included in the Development Agreement.
“Public Improvements” means the roadway and utility improvements to be constructed by
the Developer on or near 100th Street, 105th Street and Ideal Avenue in accordance with the Public
Improvement Plans and which will be dedicated to the City after completion.
“Qualified Manufacturing or Distribution Facility” means a facility meeting the
requirements of Minnesota Statutes, section 469.176, subd. 7.
“Qualifying Costs” means the cost of the Public Improvements (including associated
design, engineering and other professional fees) incurred by the Developer and which the EDA
intends to reimburse partially through the Note.
“Sale” means any sale, conveyance, exchange, assignment, refinancing or other transfer of
the Developer’s interest in the Property or the Minimum Improvements or any part thereof, as
more fully defined in Article VIII of this Agreement.
“State” means the state of Minnesota.
“Tax Increment” means that portion of the real property taxes paid to the County with
respect to the Property and the Minimum Improvements and which is remitted to the EDA as tax
increment pursuant to the TIF Act prior to the Termination Date.
“Tax Increment Financing Act” or “TIF Act” means Minnesota Statutes, sections 469.174
to 469.179, as amended.
“Tax Increment District” or “TIF District” means the EDA’s Tax Increment Financing
District No. 1-20, an economic development tax increment financing district.
“Tax Increment Plan” or “TIF Plan” means the tax increment financing plan for Tax
Increment Financing District No. 1-20, adopted by the EDA on December 14, 2021 and approved
by the City on December 15, 2021, as it may be amended from time to time.
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“Tax Official” means any County assessor, County auditor, County or State board of
equalization, the commissioner of revenue of the State, or any State or federal court.
“Termination Date” means the date the TIF District terminates, which is expected to be (i)
after eight years after receipt of the first Tax Increment, (ii) upon satisfaction of the Note; or (iii)
termination of the Note or TIF District in accordance with this Agreement, whichever occurs first.
“Unavoidable Delays” means delays beyond the reasonable control of the party seeking to
be excused as a result thereof which are the direct result of strikes, other labor troubles, supply
chain issues, 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 or inactions of any federal, State or local governmental
unit (other than the EDA in exercising its rights under this Agreement), including but not limited
to a declared emergency under Minnesota Statutes, Charter 12 or due to pandemic or quarantine
restrictions imposed by applicable law, 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. List of Preliminary Plan Documents
Exhibit C. Form of Certificate of Completion
Exhibit D. Authorizing Resolution
Exhibit E. Form of Investment Letter
Exhibit F Total Development Costs
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.
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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:
(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 sections
469.176, subd. 4c and 469.176, subd. 7 of the TIF Act.
Section 2.2. Representations and Warranties by the Developer. The Developer represents
and warrants that:
(a) The Developer is a limited liability company, organized and in good standing under
the laws of Delaware and authorized to do business in Minnesota, and has the power and authority
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 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) To obtain the benefits described herein, the Developer will construct the Public
Improvements and will construct and use the Minimum Improvements in accordance with the
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terms of this Agreement, the Program, the TIF Plan, 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 sections 469.176, subd. 4c
and 469.176, subd. 7 of the TIF Act regarding allowable uses and required wage levels within
economic development TIF districts.
(f) The Developer has analyzed the economics of the project and has determined that
construction of the Public Improvements and the Minimum Improvements described in this
Agreement would not occur but for the Development Assistance being provided hereunder.
(g) 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.
(h) To obtain the benefits described herein, the Developer will apply for 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.
(i) 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
Construction of Minimum Improvements and Public Improvements
Section 3.1. Construction of Minimum Improvements. The Developer agrees that it will
construct the Minimum Improvements on the Property in accordance with the Final 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,
normal wear and tear excepted. 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 3.2. Preliminary and Final Plans. (a) The Developer has submitted and the EDA has
approved the Preliminary Plans, a list of which is attached hereto as Exhibit B. After execution of
this Agreement, but at least 30 days prior to commencement of construction of each Phase, the
Developer shall submit dated Final Plans to the EDA for that Phase. The Final Plans shall provide
for the construction of the Phase of Minimum Improvements and shall be in substantial conformity
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with the Preliminary Plans and this Agreement. The EDA will approve the Final Plans if they (1)
substantially 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 Development Agreement
and 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) The Developer shall proceed to construct each Phase of the Minimum Improvements
in accordance with the Final Plans unless the Developer desires to make a change to the Final Plans
requiring prior approval by the EDA. A change in the Final Plans requiring prior approval by the
EDA is any change to the exterior design or materials of the Minimum Improvements, any change of
more than five percent in the square footage of the Minimum Improvements or any other change
which would also require review or reapproval under any applicable code, ordinance or regulation.
If the proposed change conforms to the requirements of this section 3.2 with respect to the original
Final Plans or is otherwise acceptable to the EDA, the EDA shall approve the proposed change, which
approval shall not be unreasonably withheld. Such change in the Final Plans shall be deemed
approved by 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 15 business
days after receipt of the written notice of such change from the Developer.
Section 3.3. Phased Construction; Commencement and Completion. Subject to Unavoidable
Delays, the Developer shall commence and complete construction of the Minimum Improvements in
accordance with the following schedule:
Phase Square Feet Commencement Date Completion Date
I 1,294,000 April 30, 2022 July 30, 2024
II 730,000 April 30, 2023 July 30, 2025
III 677,600 April 30, 2024 July 30, 2026
IV 739,000 April 30, 2025 July 30, 2027
The square footage of each Phase is subject to reasonable adjustment but the total square footage
of the four Phases shall not be less than 3,440,000
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 Final Plans.
Section 3.4. Certificate of Completion. (a) After Completion of each Phase of the Minimum
Improvements in accordance with the Final Plans and all terms of this Agreement, the EDA will
furnish the Developer with a Certificate of Completion in the form of Exhibit C attached hereto for
such Phase. 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 said Phase of 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’s building official.
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(b) The Certificate of Completion provided for in this section 3.4 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 3.4, 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 relevant Phase of 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 3.5. Reconstruction of Minimum Improvements. The Developer agrees to notify
the EDA immediately in the case of damage exceeding $250,000 in amount to, or destruction of,
any portion 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 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.
Section 3.6. Restrictions on Use. The Developer, for itself and its successors and assigns,
agrees to devote the Property and the Minimum Improvements only to such use or uses as may be
permissible under the City’s land use regulations. This is in addition to those limitations on use
required by the TIF Act because the Property is within an economic development tax increment
financing district, as provided in more detail in section 7.4 of this Agreement.
Section 3.7. City Approvals and Permits; Development Agreement. 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 and to enter
into the Development Agreement with the City regarding the same.
Section 3.8. Construction of Public Improvements. The Developer agrees to construct the
Public Improvements in accordance with the Public Improvement Plans and the Development
Agreement. The Developer agrees to complete construction of the Public Improvements by no
later than April 30, 2024.
ARTICLE IV
Financial Assistance; Issuance of Note
Section 4.1. Public Assistance. The Developer represented to the EDA that the cost of the
Public Improvements, in addition to the costs associated with constructing the Minimum
Improvements, exceeds the amount of funding available and requested assistance from the EDA.
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The EDA agreed to offer the Development Assistance to the Developer in accordance with this
Article IV.
Section 4.2. Issuance of Pay-As-You-Go Note. (a) In consideration of the Developer
constructing the Minimum Improvements and the Public Improvements and to finance partial
reimbursement of the Qualifying Costs, the EDA will issue and the Developer will receive the
Note in the principal amount of $8,311,000, subject to reduction in accordance with section 4.5 of
this Agreement, in substantially the form set forth in the Authorizing Resolution attached hereto
as Exhibit D. The Note will pay interest at an annual rate of 4.0 percent. The EDA and the
Developer agree that the consideration from the Developer for the purchase of the Note will consist
of the Developer’s payment of the Qualifying Costs which are eligible for reimbursement with
Tax Increment and which are incurred by the Developer in at least the principal amount of the
Note. The EDA will deliver the Note upon satisfaction by the Developer of all the conditions
precedent specified in section 4.3 of this Agreement.
(b) The Developer understands and acknowledges that the EDA makes no
representations or warranties regarding the amount of Available Tax Increment, or that revenues
pledged to the Note will be sufficient to pay the principal of and interest on the Note. Any
estimates of Tax Increment or Available Tax Increment prepared by the EDA or its financial
advisors in connection with the TIF District or this Agreement are for the benefit of the EDA and
are not intended as representations on which the Developer may rely.
Section 4.3. Conditions Precedent to Issuance of Note. Notwithstanding anything in this
Agreement to the contrary, the EDA shall not be obligated to issue the Note until all of the
following conditions precedent have been satisfied:
(a) The EDA and the City have approved the modification of the Program, the
establishment of the TIF District and approved the business subsidy agreement with the Developer;
(b) This Agreement has been executed by the Parties and recorded against the Property;
(c) The Developer has completed Phase I of the Minimum Improvements and the EDA
has issued a Certificate of Completion for same;
(d) The Developer has completed the Public Improvements in accordance with this
Agreement and the Development Agreement;
(e) The Developer has submitted evidence that it has paid Qualifying Costs, in at least
the principal amount of the Note, including paid receipts, lien waivers and such other evidence as
the EDA may reasonably require;
(f) The lookback calculations specified in section 4.5 of this Agreement have been
performed and any adjustment to the principal amount of the Note has been made;
(g) The Developer has submitted an Investment Letter in substantially the form
attached hereto as Exhibit E; and
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(h) There has been no Event of Default on the part of the Developer under this
Agreement or the Development Agreement which has not been cured.
Section 4.4. Records. The EDA and its representatives will have the right at all reasonable
times and after reasonable notice to inspect, examine and copy all books and records of the
Developer relating to the Qualifying Costs for which the Developer will be or has been reimbursed
under the Note.
Section 4.5. Lookback Provisions. The amount of the Development Assistance has been
established based on an estimated total development cost of the four Phases of the Minimum
Improvements of $294,825,839. After completion of the Public Improvements, mass grading,
stormwater improvements, soil stabilization, Phase I of the Minimum Improvements, internal
roadways, and various City, financing and legal fees, the actual development and related soft costs
of that Phase will be known. These actual costs in the various line items noted in Exhibit _F will
be applied to determine the projected development costs of Phases II, III and IV based on the
square footage of those phases and other reasonably estimated costs. If the total development costs
of the four Phases calculated as described herein is less than $294,825,839, the principal amount
of the Note will be decreased by an amount equal to the difference. By way of illustration, if the
total development costs are $293,825,839, the principal amount of the Note will be reduced to
$7,311,000.
ARTICLE V
Business Subsidy Act Requirements
Section 5.1. Compliance with Business Subsidy Provisions. The Parties agree and
represent to each other as follows:
(a) The business subsidy provided by the EDA to the Developer pursuant to this
Agreement includes providing the Development Assistance to the Developer in an amount not to
exceed $8,311,000.
(b) The public purposes of the subsidy are to promote construction of the Public
Improvements, development of a qualifying manufacturing and distribution facility 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 Public Improvements
and 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 wage levels in accordance
with section 5.2 of this Agreement.
(d) If the goals described in clause (c) above are not met, the Developer must make the
payments to the EDA described in section 5.3 of this Agreement.
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(e) The subsidy is needed because the Qualifying Costs incurred by the Developer
related to construction of the Public Improvements makes the project financially infeasible without
public assistance, all as determined upon approval of the TIF Plan.
(f) The Developer must continue operation of each Phase of Minimum Improvements
as a qualified manufacturing and distribution facility for at least five years after the Benefit Date
for that Phase.
(g) The Developer does not have a parent company.
(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 the construction
of the Minimum Improvements or reimbursement for the Qualifying Costs.
(i) The Developer is not ineligible to receive a business subsidy.
Section 5.2. Job and Wage Goals. The Developer agrees to create a minimum of 1,870
new jobs on the Property over the four Phases of the Minimum Improvements. At least 300 of
those jobs shall pay at least 200 percent of the State minimum wage in effect at the time of issuance
of the Certificate of Occupancy, exclusive of benefits. At least 1,383 jobs shall pay at least 160
percent of the federal minimum wage for persons 20 years of age or older at the time of issuance
of the Certificate of Occupancy, exclusive of benefits (300 plus 1,383 equals 90 percent of the jobs
paying at least 160 percent of federal minimum wage). The jobs associated with each Phase shall
be as shown below and must be created within two years of the Benefit Date of each Phase:
Phase No. of Jobs at 200%
of State Minimum
No. of Jobs at 160%
of Federal Minimum
No. of Jobs to
Total 1,870
I 75 475 50
II 75 308 50
III 75 300 50
IV 75 300 37
TOTAL 300 1,383 187
Notwithstanding anything to the contrary herein, if the wage and job goals described in this section
5.2 are met within two years of the respective Benefit Date, those goals are deemed satisfied
despite the Developer’s continuing obligations under sections 5.1(f) and 5.4.
Section 5.3. Remedies. If the Developer fails to meet the goals described in section 5.1(c),
the Developer shall repay to the EDA upon written demand from the EDA a pro rata share of the
amount of the Development Assistance paid to the Developer by the EDA as a business subsidy
under this Agreement, plus interest on said amount at the implicit price deflator as defined in
Minnesota Statutes, Section 275.50, subd. 2, accrued from the respective Benefit Date to the date
of payment. This repayment obligation is and shall remain a personal obligation of the Developer
unless, at the time of a Sale of the Property or Minimum Improvements, the purchaser assumes
such obligation in accordance with Article VIII of this Agreement, whereupon the EDA shall
release the Developer. The term pro rata share means percentages calculated as follows:
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(i) if the failure relates to the number of jobs, the jobs required less the jobs
created, divided by the jobs required;
(ii) if the failure relates to wages, the number of jobs required less the number
of jobs that meet the required wages, divided by the number of jobs required;
(iii) if the failure relates to the continued operation of each Phase of the
Minimum Improvements on the Property as a qualified manufacturing and distribution
facility and related uses in accordance with section 5.1(f), 60 less the number of months of
operation of the respective Phase as a qualified manufacturing and distribution facility and
related uses (where any month in which the qualified manufacturing and distribution
facility and related uses is in operation for at least 15 days constitutes a month of operation)
commencing on the Benefit Date and ending with the date the qualified manufacturing and
distribution facility and related uses 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 5.3 shall be construed to limit the EDA’s remedies under Article IX
of this Agreement. In addition to the remedy described in this section 5.3 and any other remedy
available to the EDA for failure to meet the goals stated in section 5.1(c), the Developer agrees
and understands that it may not a receive a business subsidy from the 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 5.3, whichever occurs first.
Section 5.4. 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,
of the year following issuance of the Certificate of Completion of Phase I, and continuing until the
later of (i) two years after the Benefit Date of Phase IV; or (ii) the date the goals stated section
5.1(c) are met; or (iii) if the goals are not met, the date the subsidy is repaid in accordance with
section 5.3. The report must comply with Section 116J.994, subdivision 7 of the Business Subsidy
Act and be on the forms prepared or approved by the Minnesota Department of Employment and
Economic Development. If the Developer fails to timely file any report required under this section
5.4, 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 5.4 is $1,000.
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
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request of the EDA, furnish the EDA with proof of payment of premiums on Workers’
compensation insurance, with statutory coverage. The Developer also agrees to provide and
maintain such additional hazard or other insurance as it deems prudent to protect its interest in the
Minimum Improvements, recognizing that the EDA’s financial obligations under this Agreement
and the Note are dependent on the Developer’s payment of real estate taxes.
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. 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.
ARTICLE VII
Collection of Taxes; Use of Tax Increment; Restrictions on Uses
Section 7.1. Taxes. (a) The Developer agrees for itself and its successors and assigns that
prior to the Final Payment Date:
(1) It will not cause a reduction in the real property taxes paid in respect of the
Minimum Improvements through: (a) willful destruction of the Minimum
Improvements or any part thereof; or (b) willful refusal to reconstruct damaged or
destroyed Minimum Improvements;
(2) It will not transfer or permit transfer of the Property or Minimum Improvements to
any entity whose ownership or operation of the Property or Minimum
Improvements would result in the Property or Minimum Improvements being
exempt from real estate taxes under State law;
(3) It will not seek administrative or judicial review of the applicability or
constitutionality of any tax statute relating to the taxation of real property
determined by any Tax Official to be applicable to the Property or Minimum
Improvements or the Developer or raise the inapplicability or constitutionality of
any such tax statute as a defense in any proceedings, including delinquent tax
proceedings; and
(4) It will not seek any tax exemption, tax deferral or abatement, either presently or
prospectively authorized under Minnesota Statutes, Sections 469.1813 through
469.1815, or any other State or federal law, of the taxation of the Property or the
Minimum Improvements.
(b) The Developer shall notify the EDA within 10 days of filing any petition to seek a
reduction in market value or property taxes on any portion of the Property or the Minimum
Improvements under any State law (referred to as a “Tax Appeal”). If as of any Payment Date,
any Tax Appeal is then pending, the EDA may suspend payments due under the Note until the
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actual amount of the reduction is determined, whereupon the EDA will make the suspended
payments less any amount that the EDA is required to repay the County as a result of any reduction
in market value of the Minimum Improvements. During the period that the payments are subject
to suspension the EDA may make partial payments on the Note if it determines, in its sole and
absolute discretion that the amount retained will be sufficient to cover any repayment which the
County may require. The EDA's suspension of payments on the TIF Note pursuant to this Section
shall not be considered a default under this Agreement.
Section 7.2. Right to Collect Delinquent Taxes. The Developer acknowledges that the
EDA is providing substantial aid and assistance to the Developer through the Development
Assistance offered under this Agreement. The Developer understands that the real estate taxes on
the Property and the Minimum Improvements must be promptly and timely paid. To that end, the
Developer agrees for itself, its successors and assigns, in addition to the obligation pursuant to
statute to pay real estate taxes, that the Developer is also obligated at all times prior to the Final
Payment Date 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 at all
times prior to the Termination Date 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 in which the EDA prevails, the EDA shall also be entitled to recover its reasonable
out-of-pocket costs, expenses and attorney fees.
Section 7.3. Use of Tax Increment. Except as provided for in this Agreement, 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 7.4. Restrictions on Use in Economic Development TIF District. (a) TIF District
No. 1-20 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) Space necessary for and related to the activities listed in clauses (1) to (5); or
(7) A workforce housing project that satisfies the requirements of Minnesota Statutes,
section 469.176, subd. 4c, paragraph (d)
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(b) In addition, three of the parcels included within the TIF District qualified under
Minnesota Statutes, sections 273.111 or 273.112 or Chapter 473H for taxes payable in at least one
of the five calendar years before filing for certification, which will occur in 2021 and 2022.
Pursuant to section 469.176, subd. 7 of the TIF Act, such parcels may be included in a TIF district
only if 85% or more of the space in the Minimum Improvements will be used for a qualified
manufacturing or distribution facility and the Developer agrees to pay 90 percent or more of the
employees at the Minimum Improvements at a rate equal to or greater than 160 percent of the
federal minimum wage for individuals over the age of 20 in effect at the time of the issuance of
the Certificate of Completion for each Phase.
(c) The Developer understands and acknowledges that a violation of the above
limitations on use or wage levels 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 if the uses or wage levels of the Minimum Improvements
no longer meet the requirements of the TIF Act.
(d) Developer acknowledges that the reason for requiring that the Minimum
Improvements be used predominately for one or more of the uses and to meet the wage levels
specified in this Section 7.4 is to ensure compliance with the TIF Act and the TIF District’s
eligibility as an economic development tax increment financing district. If at any time prior to the
Termination Date the Minimum Improvements cease to be used in conformance with the
requirements of this Section 7.4, or the TIF Act, the EDA may declare an Event of Default.
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 or if the wage levels fall below that required by the
TIF Act. Those damages or costs may include reimbursement of 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.
(e) If the EDA is required to reimburse tax increment to the County or any other
governmental entity pursuant to Minnesota Statutes, section 469.1771 or any other provision of
the TIF Act for any reason related to action or inaction by the Developer, the Developer agrees to
reimburse a similar amount to the EDA within 30 days’ written notice by the EDA to the
Developer. The EDA may add interest on the unpaid balance at the rate authorized by Minnesota
Statutes, section 549.09 beginning on the 31st day after notice to the Developer. Failure by the
Developer to reimburse the EDA pursuant to this section 7.4 shall constitute a lien on the Property.
(f) The limitation on the allowable uses in the TIF District specified in this section 7.4
is based solely on compliance with the requirements of the TIF Act for an economic development
district and a qualified manufacturing and distribution facility. In addition, the City’s zoning
ordinance and other land use regulations restrict the uses permissible in the TIF District and include
other limitations on development. The Developer acknowledges and agrees to comply with all
such regulations.
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(g) The EDA shall have the right to make a physical inspection of the Minimum
Improvements in order to ensure compliance with the terms of this Agreement and the
requirements of the TIF Act with regard to economic development districts. Such inspection shall
be limited to regular business hours and upon at least 24 hours’ notice by the EDA to the
Developer. The EDA shall also have the right to inspect the books and other financial records of
the Developer with reasonable notice to ensure that the required wage levels are being met. Absent
probable cause regarding a violation of the TIF Act regarding allowable uses for economic
development districts, or wage levels, such inspections shall not occur more than once within any
12 month period.
ARTICLE VIII
Restrictions on Sale or Encumbrance of Minimum Improvements; Assignment
Section 8.1. 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. The Developer represents and agrees that,
prior to the issuance of a Certificate of Completion regarding each Phase of the Minimum
Improvements, there shall be no Sale of the Phase of the Minimum Improvements or relevant
portion of the Property nor shall the Developer suffer any such Sale to be made, without the prior
written approval of the EDA, which shall not be unreasonably withheld, and except as permitted
by this Article VIII. 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 Developer’s obligations under this Agreement. Any such agreement
shall include the EDA as a party and otherwise be in form and substance acceptable to the EDA.
Section 8.2. 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.
ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined. Each and every one of the following shall be an
Event of Default under this Agreement:
(a) Failure by the Developer to satisfy any other condition precedent specified in
section 4.3 of this Agreement;
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(b) Failure by the Developer to construct the Public Improvements in accordance with
the terms of this Agreement and the Development Agreement;
(c) Failure by the Developer to commence and complete construction of at least Phase I
of the Minimum Improvements pursuant to the terms, conditions and limitations of Article III of
this Agreement, including the timing thereof, unless such failure is caused by an Unavoidable
Delay or waived by the Developer and the EDA;
(d) Failure of the Developer to comply with the Business Subsidy Act requirements
specified in Article V of this Agreement;
(e) Failure of the Developer to pay real estate taxes or special assessments on the
Property or Minimum Improvements as they become due;
(f) The Developer takes any action prohibited by section 7.1 of this Agreement;
(g) Sale of the Property or the Minimum Improvements, or any portion thereof, by the
Developer in violation of Article VIII of this Agreement;
(h) If 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;
(i) Prior to the Termination Date, there occurs with regard to the Property or the
Minimum Improvements a violation of sections 469.176, subd. 4c or 469.176, subd. 7 of the TIF
Act regarding permitted uses or wage level within an economic development tax increment
financing district;
(j) The Developer is in default under the Development Agreement; or
(k) Failure by the EDA or Developer 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 or administration of the TIF
District.
Section 9.2. Remedies on Default. Whenever any Event of Default referred to in section
9.1 of this Agreement occurs, the non-defaulting party may take any one or more of the following
actions after providing 30 days’ written notice to the defaulting party of the Event of Default, but
only if the Event of Default has not been cured within said 30 days 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;
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(b) Terminate or rescind further performance pursuant to this Agreement;
(c) If the default occurs prior to completion of a Phase of the Minimum Improvements,
the EDA may withhold the Certificate of Completion for that Phase;
(d) If the default occurs prior to issuance of the Note, the EDA may delay or refuse to
issue the Note;
(e) The EDA may terminate or suspend payments under the Note;
(f) The EDA may seek repayment of some or all of the financial assistance pursuant
to Article V of this Agreement; and
(g) Take whatever legal or administrative action 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.
Section 9.3. 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 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 expressly required in this Agreement.
Section 9.4. 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 X
Additional Provisions
Section 10.1. Conflict of Interests; EDA Representatives Not Individually Liable. The
EDA and the Developer, to the best of each party’s 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
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may become due to the Developer or successor or on any obligations under the terms of this
Agreement.
Section 10.2. Partial Reimbursement of EDA Expenses. The EDA has and will incur
substantial expenses in modifying the Program for Development District No. 1, establishing Tax
Increment Financing District No. 1-20 and drafting and negotiating this Agreement and related
documents. The Developer has submitted an application for tax increment financing assistance
and paid a fee of $10,000 to cover a portion of the EDA’s expenses related to the above. The
Developer agrees to reimburse the EDA for any additional expenses the EDA incurs with regard
to the above within 30 days of notice from the EDA.
Section 10.3. 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 agree 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.
(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 10.4. 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 10.5. Notices and Demands. Except as otherwise expressly provided in this
Agreement, a notice, demand, or other communication under this Agreement by any party to
another 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:
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(a) in the case of the EDA: Cottage Grove Economic
Development Authority
12800 Ravine Parkway South
Cottage Grove, MN 55016
Attn: EDA Executive Director
with a copy to: Ron Batty
Kennedy & Graven, Chartered
150 South Fifth Street
Suite 700
Minneapolis, MN 55402
(b) in the case of the Developer: NP BGO Cottage Grove Logistics Park, LLC
4825 NW 41st Street, Suite 500
Riverside, MO 64150
Attn: Evan Fittsit
with a copy to: Jay R. Lindgren
Dorsey & Whitney LLP
50 South Sixth Street
Minneapolis, MN 55402
or at such other address with respect to any such party as that party may, from time to time,
designate in writing and forward to the others as provided in this Section 10.4.
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. Recording. The EDA may record this Agreement and any amendments
thereto among the County land records.
Section 10.8. 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 in the collection of payments due
in the enforcement of this Agreement.
Section 10.9. 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 the Parties waive any objection to the jurisdiction thereof,
whether based on convenience or otherwise.
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Section 10.10. 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 10.11. Government Data. The Developer has been required to provide certain data
to the EDA or its consultants in connection with applying for financial assistance in constructing
the Minimum Improvements. It is also likely that the Developer will be required to provide
additional data to the EDA or consultants in the course of administering the TIF District to ensure
compliance with this Agreement and the TIF Act. All data provided to the EDA or its consultants
is government data within the meaning of the MGDPA. The parties recognize that some of the
data provided by the Developer to the EDA or its consultants may be nonpublic data as defined by
the MGDPA. The parties acknowledge that the EDA is subject to the MGDPA and will handle all
government data in its possession in accordance with the MGDPA, notwithstanding any other
agreement or understanding to the contrary.
Section 10.12. Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the Minimum Improvements and the Development Assistance
and it supersedes all prior contemporaneous agreements, representations, and understandings of
the parties pertaining thereto. 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 above,
nothing herein shall supersede the City’s land use regulations applicable to the Property and
Minimum Improvements or the Development Agreement or any other agreement, permit or
approval by or between the Developer and the City regarding the Public Improvements or the land
use regulations applicable to the Property and the Minimum Improvements.
***********************
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COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
By: _________________________________
Myron Bailey, President
By: _________________________________
Jennifer Levitt, Executive Director
STATE OF MINNESOTA )
) ss.
COUNTY OF WASHINGTON )
The foregoing instrument was acknowledged before me this ____ day of
________________, 2021, by Myron Bailey and Jennifer Levitt, 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
A-1
CT165\57\761874.v3
EXHIBIT A TO
CONTRACT FOR PRIVATE DEVELOPMENT
LEGAL DESCRIPTION OF THE PROPERTY
Real property located in the County of Washington, State of Minnesota, legally described
as follows:
The West Half of the Northeast Quarter of Section 29, Township 27, Range 21, Washington
County, Minnesota
And
The West Half of the East Half of the Northeast Quarter of Section 29, Township 27 North,
Range 21 West, Washington County, Minnesota.
And
The Northeast Quarter of the Northwest Quarter of Section 29, Township 27 North, Range
21 West, Washington County, Minnesota.
And
The East half of the East half of the Northeast Quarter of Section 29, Township 27 North,
Range 21 West City of Cottage Grove, Washington County, Minnesota.
EXCEPT the South 330 feet.
And
The West three-eights (3/8) of the Northwest Quarter of Section 28, Township 27 North,
Range 21 West, Washington County, Minnesota.
EXCEPT that land conveyed to the City of Cottage Grove in Warranty Deed dated April
14, 2000, recorded May 26, 2000, as Document No. 3105702, described as follows:
That part of the West three-eights (3/8) of the Northwest Quarter of Section 28, Township
27 North, Range 21 West, Washington County, Minnesota, described as follows:
Beginning at the southwest corner of the said Northwest Quarter; thence North 00° 53’ 28”
East, assumed bearing along the West line of the said Northwest Quarter, a distance of
2646.81 feet to the northwest corner of the said Northwest Quarter; thence South 89° 53’
43” East, along the north line of the said Northwest Quarter, a distance of 983.14 feet to
the northeast corner of the said West 3/8ths of the Northwest Quarter; thence South 00°
19’ 37” West along the east line of the said West 3/8ths of the Northwest Quarter a distance
of 24.55 feet; thence South 89° 51’ 33” West a distance of 935.63 feet; thence South 01°
09’ 18” West a distance of 2618.39 feet to the south line of the said Northwest Quarter;
thence North 89° 58’ 53” West, along said south line, a distance of 35.76 feet to the point
of beginning.
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EXHIBIT B TO
CONTRACT FOR PRIVATE DEVELOPMENT
LIST OF THE PRELIMINARY PLANS
[to be completed]
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EXHIBIT C TO
CONTRACT FOR PRIVATE DEVELOPMENT
FORM OF
CERTIFICATE OF COMPLETION
(PHASE __)
WHEREAS, the Cottage Grove Economic Development Authority, a public body
corporate and politic under the laws of Minnesota (the “EDA”) and NP BGO Cottage Grove
Logistics Park, LLC, a limited liability company under the laws of Delaware, (the “Developer”),
have entered into that certain Contract for Private Development by and between the EDA and the
Developer dated the __ day of _________, 2021, 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, as defined therein; and
WHEREAS, the land to which the Contract for Private Development applies (the
“Property”) is legally described on Exhibit A attached hereto; and
WHEREAS, said Developer has performed said covenants and conditions in a manner
deemed sufficient by the EDA 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 Developer
with regard to Phase __ of the Minimum Improvements constructed thereon have been completed
and the above covenants and conditions in said Contract for Private Development have been
performed by the Developer therein 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 Phase
___ of Minimum Improvements.
Dated: _______________, 20__.
COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
By: _________________________________
President
By: _________________________________
Executive Director
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STATE OF MINNESOTA )
) ss.
COUNTY OF WASHINGTON )
The foregoing instrument was acknowledged before me this ____ day of
________________, 20__, by ________________ and __________________, 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
150 South Fifth Street
Suite 700
Minneapolis, MN 55402
(612) 337-9300
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EXHIBIT A
Legal Description of Property (Phase __)
[to be included]
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EXHIBIT D TO
CONTRACT FOR PRIVATE DEVELOPMENT
FORM OF AUTHORIZING RESOLUTION
COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY
RESOLUTION NO. ______
RESOLUTION APPROVING THE ISSUANCE OF, AND PROVIDING
THE FORM, TERMS, COVENANTS AND DIRECTIONS FOR THE
ISSUANCE OF ITS TAXABLE TAX INCREMENT REVENUE NOTE,
SERIES ____________ IN AN AGGREGATE PRINCIPAL AMOUNT
NOT TO EXCEED $8,311,000
BE IT RESOLVED BY the Cottage Grove Economic Development Authority (the “EDA”),
as follows:
Section 1. Authorization; Award of Sale.
1.01. Authorization. The EDA has heretofore approved the establishment of Tax
Increment Financing District No. 1-20 (the “TIF District”) within the Development District No. 1
(the “Development District”), and adopted a tax increment financing plan for the purpose of
financing certain improvements within the Development District. The EDA has authority over the
TIF District and the Development District.
Pursuant to Minnesota Statutes, Section 469.178, the EDA is authorized to issue and sell
its bonds for the purpose of financing a portion of the public development costs of the Development
District. The bonds are payable from all or any portion of revenues derived from the TIF District
and pledged to the payment of the bonds. The EDA hereby finds and determines that it is in the
best interests of the EDA that it issue and sell its Taxable Tax Increment Revenue Note, Series
______ (the “Note”), in the aggregate principal amount of $8,311,000.00, for the purpose of
financing certain public costs of the Development District.
1.02. Agreement Approved; Issuance, Sale and Terms of the Note. The EDA has
previously approved the Contract for Private Development (the “Agreement”) between the EDA
and NP BGO Cottage Grove Logistics Park, LLC, a limited liability company under the laws of
Delaware (the “Owner”), and authorized the President and Executive Director to execute the
Agreement. Pursuant to the terms and conditions of the Agreement, the Note will be issued to the
Owner. The Note will be dated as of the date of delivery and will bear interest at the rate of 4.0
percent per annum. In exchange for the EDA’s issuance of the Note to the Owner, the Owner has
incurred certain costs related to the Public Improvements (the “Qualifying Costs”, as defined in
the Agreement) pursuant to Article IV of the Agreement. The Note will be delivered in the
principal amount of $8,311,000.00 for reimbursement of the Owner’s costs in accordance with the
terms of the Agreement.
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Section 2. Form of Note. The Note will be in substantially the following form, with
the blanks to be properly filled in and the principal amount and payment schedule adjusted as of
the date of issue:
UNITED STATE OF AMERICA
STATE OF MINNESOTA
WASHINGTON COUNTY
No. R-1 $8,311,000.00
COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY
TAXABLE TAX INCREMENT REVENUE NOTE, SERIES _____
Date
Rate of Original Issue
4.0% __________
The Cottage Grove Economic Development Authority (the “EDA”), for value received,
certifies that it is indebted and hereby promises to pay to NP BGOCottage Grove Logistics Park, LLC,
or its registered assigns (the “Owner”), the principal sum of $8,311,000.00 and to pay interest thereon
at the rate of 4.0% per annum, as and to the extent set forth herein. This Note is issued pursuant to
the Contract for Private Development between the EDA and the Owner dated _______________,
20__ (the “Agreement”). Capitalized terms not otherwise defined herein have the meanings provided
in the Agreement.
1. Payments. Principal and interest (“Payments”) will be paid on August 1, 2024, and
each February 1 and August 1 thereafter to and including February 1, 2030 (“Payment Dates”), in
the amounts and from the sources set forth in Section 3 herein. Payments will be applied first to
accrued interest, and then to unpaid principal.
Payments are payable by mail to the address of the Owner or any other address as the
Owner may designate upon 30 days written notice to the EDA. Payments on this Note are payable
in any coin or currency of the United States of America which, on the Payment Date, is legal tender
for the payment of public and private debts.
2. Interest. Interest at the rate stated herein will accrue on the unpaid principal,
commencing on the date of original issue. Interest will be simple, non-compounding interest and
will be computed on the basis of a year of 360 days and twelve 30-day months and charged for
actual days principal is unpaid. To the extent that Available Tax Increment is insufficient to pay
principal and interest on any Payment Date, unpaid interest will not be added to principal.
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3. Available Tax Increment. Payments on this Note are payable on each Payment
Date in the amount of and solely from “Available Tax Increment,” which will mean, on each
Payment Date, 90 percent of the Tax Increment attributable to the Property (defined in the
Agreement) and paid to the EDA by Washington County in the six months preceding the Payment
Date, all as the terms are defined in the Agreement. Available Tax Increment will not include any
Tax Increment if, as of any Payment Date, there is an uncured Event of Default by the Owner
under the Agreement.
The EDA will have no obligation to pay principal of and interest on this Note on any
Payment Date from any source other than Available Tax Increment, and the failure of the EDA to
pay the entire amount of principal or interest on this Note on any Payment Date will not constitute
a default hereunder as long as the EDA pays principal and interest hereon to the extent of Available
Tax Increment. If on any Payment Date there is insufficient Available Tax Increment to pay
accrued and unpaid interest on this Note on such date, the amount of such deficiency shall be
deferred and paid, without interest thereon, on the next Payment Date on which the EDA has
Available Tax Increment in excess of the amount necessary to pay the accrued and unpaid interest
on this Note on such subsequent Payment Date. The EDA will have no obligation to pay unpaid
balance of principal or accrued interest that may remain after the Final Payment Date of February
1, 2030.
4. Optional Prepayment. The principal sum and all accrued interest payable under
this Note is pre-payable in whole or in part at any time by the EDA without premium or penalty.
No partial prepayment will affect the amount or timing of any other regular payment otherwise
required to be made under this Note.
5. Default. If on any Payment Date there has occurred and is continuing any Event of
Default under the Agreement, the EDA may, notwithstanding any notice and cure provisions in
the Agreement, withhold from Payments hereunder all Available Tax Increment. If the Event of
Default is thereafter cured in accordance with the Agreement, the Available Tax Increment
withheld under this Section shall be deferred and paid, without interest thereon, within 30 days
after the Event of Default is cured. If on any date there has occurred and is continuing, after notice
and opportunity to cure have been provided in accordance with the Agreement, any Event of
Default under the Agreement, the EDA may exercise its remedies under the Agreement, including
but not limited to terminating this Note. Reference is hereby made to all of the provisions of the
Agreement for a fuller statement of the rights and obligations of the EDA to pay the principal of
and interest on this Note, and said provisions are hereby incorporated into this Note as though set
out in full herein.
6. Nature of Obligation. This Note is a single note in the total principal amount of
$8,311,000.00 issued to aid in financing certain Qualifying Costs of a Development District
undertaken by the EDA pursuant to Minnesota Statutes, Sections 469.001 through 469.047, as
amended and is issued pursuant to and in full conformity with the Constitution and laws of the
State of Minnesota, including Minnesota Statutes, Sections 469.174 through 469.179, as amended.
This Note is a limited obligation of the EDA which is payable solely from Available Tax Increment
pledged to the payment hereof. This Note and the interest hereon will not be deemed to constitute
a general obligation of the State of Minnesota or any political subdivision thereof, including,
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without limitation, the EDA or the city of Cottage Grove. Neither the State of Minnesota, nor any
political subdivision thereof will be obligated to pay the principal of or interest on this Note or
other costs incident hereto except out of Available Tax Increment, and neither the full faith and
credit nor the taxing power of the State of Minnesota or any political subdivision thereof is pledged
to the payment of the principal of or interest on this Note or other costs incident hereto.
7. Estimated Tax Increment Payments. Any estimates of Tax Increment or Available
Tax Increment prepared by the EDA or its financial advisors in connection with the TIF District
or the Agreement are for the benefit of the EDA, and are not intended as representations on which
the Developer may rely.
THE EDA MAKES NO REPRESENTATION OR WARRANTY THAT THE
AVAILABLE TAX INCREMENT WILL BE SUFFICIENT TO PAY THE PRINCIPAL OF
AND INTEREST ON THIS NOTE.
8. Registration and Transfer. This Note is issuable only as a fully registered note
without coupons. Subject to certain limitations set forth herein, this Note is transferable upon the
books of the EDA kept for that purpose at the principal office of the Executive Director of the
EDA as Registrar, by the Owner hereof in person or by the Owner’s attorney duly authorized in
writing, upon surrender of this Note together with a written instrument of transfer satisfactory to
the EDA, duly executed by the Owner. Upon the transfer or exchange and the payment by the
Owner of any tax, fee, or governmental charge required to be paid by the EDA with respect to the
transfer or exchange, there will be issued in the name of the transferee a new Note of the same
aggregate principal amount, bearing interest at the same rate and maturing on the same dates.
This Note will not be transferred to any person other than an affiliate, or other related entity,
of the Owner unless the EDA has been provided with an investment letter in a form substantially
similar to the investment letter submitted by the Owner or a certificate of the transferor, in a form
satisfactory to the EDA, that the transfer is exempt from registration and prospectus delivery
requirements of federal and applicable state securities laws.
IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions, and things required
by the Constitution and laws of the State of Minnesota to be done, to exist, to happen, and to be
performed in order to make this Note a valid and binding limited obligation of the EDA according
to its terms, have been done, do exist, have happened, and have been performed in due form, time
and manner as so required.
**************************
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IN WITNESS WHEREOF, the board of commissioners of the Cottage Grove Economic
Development Authority has caused this Note to be executed with the manual signatures of its
President and Executive Director, all as of the Date of Original Issue specified above.
COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
Myron Bailey, President Jennifer Levitt, Executive Director
REGISTRATION PROVISIONS
The ownership of the unpaid balance of the within Note is registered in the bond register
of the Executive Director of the EDA, in the name of the person last listed below.
Date of Registration Registered Owner Signature of EDA Executive Director
NP BGO Cottage Grove
Logistics Park, LLC
4825 NW 41st Street
Suite 500
Riverside, MO 64150
Federal ID #_____________
[End of Form of Note]
Section 3. Terms, Execution and Delivery.
3.01. Denomination, Payment. The Note will be issued as a single typewritten note
numbered R-1.
The Note will be issuable only in fully registered form. Principal of and interest on the
Note will be payable by check or draft issued by the Registrar described herein.
3.02. Dates. Principal of and interest on the Note will be payable by mail to the owner
of record thereof as of the close of business on the fifteenth day of the month preceding the
Payment Date, whether or not the day is a business day.
3.03. Registration. The EDA hereby appoints the Executive Director to perform the
functions of registrar, transfer agent and paying agent (the “Registrar”). The effect of registration
and the rights and duties of the EDA and the Registrar with respect thereto will be as follows:
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(a) Register. The Registrar will keep at her office a bond register in which the Registrar
will provide for the registration of ownership of the Note and the registration of transfers and
exchanges of the Note.
(b) Transfer of Note. Upon surrender for transfer of the Note duly endorsed by the
registered owner thereof or accompanied by a written instrument of transfer, in form reasonably
satisfactory to the Registrar, duly executed by the registered owner thereof or by an attorney duly
authorized by the registered owner in writing, the Registrar will authenticate and deliver, in the
name of the designated transferee or transferees, a new Note of a like aggregate principal amount
and maturity, as requested by the transferor. Notwithstanding the foregoing, the Note will not be
transferred to any person other than an affiliate, or other related entity, of the Owner unless the
EDA has been provided with an investment letter in a form substantially similar to the investment
letter submitted by the Owner or a certificate of the transferor, in a form satisfactory to the EDA,
that the transfer is exempt from registration and prospectus delivery requirements of federal and
applicable state securities laws. The Registrar may close the books for registration of any transfer
after the fifteenth day of the month preceding each Payment Date and until the Payment Date.
(c) Cancellation. The Note surrendered upon any transfer will be promptly cancelled
by the Registrar and thereafter disposed of as directed by the EDA.
(d) Improper or Unauthorized Transfer. When the Note is presented to the Registrar
for transfer, the Registrar may refuse to transfer the same until she is satisfied that the endorsement
on the Note or separate instrument of transfer is legally authorized. The Registrar will incur no
liability for her refusal, in good faith, to make transfers which she, in her judgment, deems
improper or unauthorized.
(e) Persons Deemed Owners. The EDA and the Registrar may treat the person in
whose name the Note is at any time registered in the bond register as the absolute owner of the
Note, whether the Note is overdue or not, for the purpose of receiving payment of, or on account
of, the principal of and interest on the Note and for all other purposes, and all the payments so
made to any registered owner or upon the owner’s order will be valid and effectual to satisfy and
discharge the liability of the EDA upon the Note to the extent of the sum or sums so paid.
(f) Taxes, Fees and Charges. For every transfer or exchange of the Note, the Registrar
may impose a charge upon the owner thereof sufficient to reimburse the Registrar for any tax, fee,
or other governmental charge required to be paid with respect to the transfer or exchange.
(g) Mutilated, Lost, Stolen or Destroyed Note. In case the Note becomes mutilated or
is lost, stolen, or destroyed, the Registrar will deliver a new Note of like amount, maturity dates
and tenor in exchange and substitution for and upon cancellation of the mutilated Note or in lieu
of and in substitution for the Note lost, stolen, or destroyed, upon the payment of the reasonable
expenses and charges of the Registrar in connection therewith; and, in the case the Note lost, stolen,
or destroyed, upon filing with the Registrar of evidence satisfactory to it that the Note was lost,
stolen, or destroyed, and of the ownership thereof, and upon furnishing to the Registrar of an
appropriate bond or indemnity in form, substance, and amount satisfactory to it, in which both the
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EDA and the Registrar will be named as obligees. The Note so surrendered to the Registrar will
be cancelled by her and evidence of the cancellation will be given to the EDA. If the mutilated,
lost, stolen, or destroyed Note has already matured or been called for redemption in accordance
with its terms, it will not be necessary to issue a new Note prior to payment.
3.04. Preparation and Delivery. The Note will be prepared under the direction of the
Executive Director and will be executed on behalf of the EDA by the signatures of its President
and Executive Director. In case any officer whose signature appears on the Note ceases to be the
officer before the delivery of the Note, the signature will nevertheless be valid and sufficient for
all purposes, the same as if the officer had remained in office until delivery. When the Note has
been so executed, it will be delivered by the EDA to the Owner following the delivery of the
necessary items delineated in Section 4.3 of the Agreement.
Section 4. Security Provisions.
4.01. Pledge. The EDA agrees to pay the principal of and interest on the Note from
Available Tax Increment as defined in the Note. Available Tax Increment will be applied first to
accrued interest, and then to unpaid principal of the Note in accordance with the terms of the form
of Note set forth in Section 3 of this resolution.
4.02. Bond Fund. Until the date the Note is no longer outstanding and no accrued interest
or principal thereof (to the extent required to be paid pursuant to this resolution) remains unpaid,
the EDA will maintain a separate and special “Bond Fund” to be used for no purpose other than
the payment of the principal of and interest on the Note. The EDA irrevocably agrees to
appropriate to the Bond Fund in each year Available Tax Increment which is not otherwise
obligated. Any Available Tax Increment remaining in the Bond Fund will be transferred to the
EDA’s account for the TIF District upon the payment of all principal and interest to be paid with
respect to the Note.
Section 5. Certification of Proceedings.
5.01. Certification of Proceedings. The officers of the EDA are hereby authorized and
directed to prepare and furnish to the Owner of the Note certified copies of all proceedings and
records of the EDA, and the other affidavits, certificates, and information as may be required to
show the facts relating to the legality and marketability of the Note as the same appear from the
books and records under their custody and control or as otherwise known to them, and all the
certified copies, certificates, and affidavits, including any heretofore furnished, will be deemed
representations of the EDA as to the facts recited therein.
Section 6. Effective Date. This resolution will be effective upon execution by the President
and Executive Director following authorization by the board of commissioners of the EDA.
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Adopted by the board of commissioners of the Cottage Grove Economic Development Authority,
this ____ day of ________, 20___.
President
Executive Director
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EXHIBIT E TO
CONTRACT FOR PRIVATE DEVELOPMENT
FORM OF INVESTMENT LETTER
To the Cottage Grove Economic Development Authority (the “EDA”)
Attention: Executive Director
Dated: __________________, 20__
Re: $8,311,000.00 Taxable Tax Increment Revenue Note
The undersigned, as Purchaser of $8,311,000.00 in principal amount of the above-
captioned Taxable Tax Increment Revenue Note (the “Note”), approved by the Board of
Commissioners of the Cottage Grove Economic Development Authority on ______________,
20__, hereby represents to you and to Kennedy & Graven, Chartered, Minneapolis, Minnesota, as
legal counsel to the EDA, as follows:
1. We understand and acknowledge that the Note is delivered to the Purchaser on this
date pursuant to the Contract for Private Development by and between the EDA and the Purchaser
dated ________________, 20__ (the “Agreement”).
2. The Note is payable as to principal and interest solely from Available Tax
Increment pledged to the Note, as defined therein.
3. We have sufficient knowledge and experience in financial and business matters,
including purchase and ownership of municipal obligations, to be able to evaluate the risks and
merits of the investment represented by the purchase of the above-stated principal amount of the
Note.
4. We acknowledge that no offering statement, prospectus, offering circular or other
comprehensive offering document or disclosure containing material information with respect to
the EDA and the Note has been issued or prepared by the EDA, and that, in due diligence, we have
made our own inquiry and analysis with respect to the EDA, the Note and the security therefor,
and other material factors affecting the security and payment of the Note.
5. We acknowledge that we have either been supplied with or have access to
information, including financial statements and other financial information, to which a reasonable
investor would attach significance in making investment decisions, and we have had the
opportunity to ask questions and receive answers from knowledgeable individuals concerning the
EDA, the Note and the security therefor, and that as reasonable investors we have been able to
make our decision to purchase the above-stated principal amount of the Note.
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6. We have been informed that the Note (i) is not being registered or otherwise
qualified for sale under the “Blue Sky” laws and regulations of any state, or under federal securities
laws or regulations, (ii) will not be listed on any stock or other securities exchange, and (iii) will
carry no rating from any rating service.
7. We acknowledge that the EDA and Kennedy & Graven, Chartered, as legal counsel
to the EDA, have not made any representations or warranties as to the status of interest on the Note
for the purpose of federal or state income taxation.
8. We represent to you that we are purchasing the Note for our own account and not
for resale or other distribution thereof, except to the extent otherwise provided in the Note or as
otherwise approved in writing by the EDA.
9. All capitalized terms used herein have the meaning provided in the Agreement
unless the context clearly requires otherwise.
10. The Purchaser’s federal tax identification number is ______________.
11. We acknowledge receipt of the Note on the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this Investment Letter as of the
date and year first written above.
NP BGO COTTAGE GROVEW LOGISTICS PARK, LLC
By:
Evan Fittsit, _________________
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EXHIBIT F TO
CONTRACT FOR PRIVATE DEVELOPMENT
TOTAL DEVELOPMENT COSTS