HomeMy WebLinkAbout8.a. Wachter 186A, Carrollton IV Drainage Issue ` CITY OF ROSEMOUNT
� EXECUTIVE SUMMARY FOR ACTION
CITY COUNCIL MEETING DATE: March 7, 1995
AGENDA ITEM: Wachter 186A Update AGENDA SECTION:
Old Business
PREPARED BY: Bud Osmundson AGENDA ���
City Engineer/Public Works Director #
ATTACHMENTS: Letter from Dan Hanscomb, Original and APPROVED BY:
Alternative Design and Estimates
As a review, Wachter 186A Outlet, City Project #257, is the storm drain overflow outlet
for the Carrollton 4th Addition east of Colorado Avenue and adjoining areas west of
Cimarron. Staff has been trying to acquire an easement from the Chippendale 42
Partnership, south of CSAH 42 so that the project can go forward. In the most recent
discussions with Mr. Ray Connelly, who represents the Chippendale 42 Partnership, we
believe we are nearing a solution to the concerns of the property owner and ourselves.
The property owner was concerned that the pipe easements which we were requesting
would put too much of a restrictive burden on development of that site. The property
owner is amenable to some kind of alternative flowage easement over the site and having
a ditch provide the outlet rather than an underground pipe. At the time of platting of the
property, the owner will grant the necessary easements.
Staff's concerns are that the ditch may have erosion problems, especially if the farming '
continues on the property. However, the estimated cost is approximately $5,000 less
than the original estimate and will suffice as an outlet. Therefore we are recommending
to use the alternative design on the project.
At this time the owner of the property is still vacationing, therefore we cannot put a
conclusion to the negotiations. However I am happy to report that we are close to an
agreement and the project can go forward. Any agreement will of course, be brought to
Council for approvaL
RECOMMENDED ACTION: Discussion only.
COUNCIL ACTION:
3
S
February 24, 1995
Linda Jentinka, Bud Osmundson
Rosemount City Hall
2875 145 St. RECs�VE�
Rosemount,MN 55068
FEB 2 71995
C��r �,/7 rIVJL���VUIY�
Dear Linda and Bud,
I am writing to request that a review and discussion of the Carrollton IV, Colorado Avenue
drainage problem be put on the City Council agenda for the March 7, 1995 meeting. City
Engineering has been working this problem over the last couple of months. I have spoken with
Bud Osmundson on a number of occasions during this period waiting and hoping for a
breakthrough. I spoke with Bud today and he indicated that some progress has been made
regarding the issue. We have had a mild winter and if March holds we will have been given a
reprieve in terms of a spring thaw. It is an appropriate time for a review.
If there is any specific information you would like for me to bring to the meeting,please advise.
I have been maintaining a folder with pictures and correspondence.
Th You.
Dan Hanscom
14866 Colarado Ave. ,
Rosemount,MN 55068
Phone: 322-2967
Copy: Carrollton IV Neighbors
r
. Wachter 186 A Outlet
City of Rosemount
City Project No.: 257
OSM Prnject No.: 5414.00
Engineer's Estimate
_ Original Storm Drain Alignment from MH 5 to South
> .,.: , : < <
UNIT
: �;:, .... <::. ::
> ; ,ITEM > ;QUANTITY ' : PRICE � AMOUNT
1 Ditch Excavation 300 CY $3.00 $900.40
2 Sod 5,300 SY $2.00 $10,6Q0.00
3 Bale Check 20 EA $6.00 $120.40
4 21" RCP CL III 714 LF $28.00 $19,992.00
5 21" RC FES 1 EA $1,500.00 $1,500.00
6 CL III Rip-Rap 4.7 CY $50.00 $235.40
7 48" DIA MH (0-10') 1 EA $1,000.00 $1,000.00
Total $34,347.00
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MARI�ET VALUE APPRAISAL
f -. : .._ _ .
` OF 75 ACRES OF VACANT LAND
r BEFORE AND AFTER THE PUBLIC TAKING OF A P �
!
AND TIIVg'ORARY EASEII�NT FOR STORM DRAINAGE
1
�
tPROPERTY LOCATED ALONG
CASH #42 IN SECTION 31, TOWNSHIP 115, RANGE 19
� ROSEMOUNT, 11ZI1vNTSOTA
�
t FOR
BUD OSMUNDSON
'
CITY ENGINEER/ASSISTANT PUBLIC WORKS DIRECTOR
t CITY OF ROSEMOUNT
� , -- 2875 145TH STREET WEST
ROSEMOUNT, MN 55068
�
� BY
RACINE APPRAISALS
� 3989 SIBLEY MEMORIAL ffiGHWAY
EAGAN, MN 55122
�
-I-
�
' � ` C�NFIDENTIAL �C��JN�IL C�NLY
MAIN OFHCE
3989 Sibley Memorial Highwey, Suite 3
� .. -,.,. ._,.. . - _ Eagan. Minnesota 55122
pndNE APPaasats S Assoc. [612�686-8266
FAX[612]686-9883
f . . c°"�'�'•��"°a'•'"� February 23, 1995
Mr. Bud Osmundson
City Engineer/Assistant Public Works Director
� City of Rosemount
2875 145th Street West
Rosemount, MN 55068
I
Subject: Easement No. 94-17, Rosemount City Project Na 257.
[ Dear Mr. Osmundson:
In reply to your request, we have completed a market value appraisal report on the above
treferenced project. The purpose of the appraisal is to arrive at an estimate of market value of
the fee simple interest of the property before and after a public taldng of a drainage easement.
Market value is defined within the definitions section of this report. 7'his report is subject to
� the assumptions and limiting conditions contained herein. This report has been prepared to
meet the requirements of the Uniform Standards of Professional Appraisal Practice. It is our
opinion that as of February 23, 1995, the market value of the properly prior to the public
� easement is:
� SEVEN HUNDRED THIItTEEN THOUSAND DOLLARS
($713,000.00)
� It is our o inion that the market value of the property subsequent to the public easement is:
P
� SIX�iUNDRED NINETY-TWO THOUSAND DOLLARS
($692,000.00)
� The conclusions are based upon our personal inspection and review of the property,
compazable sales,_and application of the appraisal process before and after the pubhc taking
� of the permanent and temporary easement.
Respectfully u mitted,
� �� •
C `� �-"`
� �,
� Craig Redalen
Certified General A raiser
.��� `
� '
: Member Df: g j, ine 7r.,
j APPRAISA�INSTITUTE[Lee Racine]
Minnesota 6overnmental Appraisers � Celtlfl� Ci6II8I� AP�1l��GS AREA OFFlCE
� Minneapofis 8oard of REALTORS 11931 Lofton Avenue South
Dakota County Board af REALTORS Hastings, Minnesota 55033
"HUD"and"VL1" Certified Appraiser - (612j 437-6000
�lil
� -�'„'
Execution CoPY
CONTBACT
F08
PItNATE BIDEVELOPMENT
Bp and Between
ROSII4i0UNT P08T AUTHOBITY
and
gEYSTONE PROPERTIES, L.L.C. �
Dated as of:
This document was drafted by:
HOLMES & GRAVEN, Chartered -
470 Pillsbury Center
Minneapolis, Miunesota 55402
Telephone: 337-9300
8J883092
R8230-5
,'S.' y� �
TABLE OF CONTENTS
: Pa e
PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
Definitions
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . ` 2
ARTICLE II
Bepresentations and Warranties
Section 2.1. Representations by the Authority . . . . . . . . . . . . 5
Section 2.2. Representations and Warranties �by �the
R,edeneloper . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
Acquisition of Property;
Public Improvements
Section 3.1. Status of Property . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.2. Land Acquisition Costs . . . . . . . . . . . . . . . . . . . . 7
Section 3.3. Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.4. Soil Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . 7 �
Section 3.5. Platting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.6. Public Redevelopment Costs . . . . . . . . . . . . 8
Section 3.7. TIF Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Seetion 3.8. Issuance of Notes . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
Construction of M�r;�m Improvements
Section 4.1. Construction of Minimum Improvements . . . . . . . . . . . . 12
Section 4.2. Construction Plans . . . . . . . . . . . . . . . . . . . . . 12
Section 4.3. Commeneement and Completion of Construetion. . . . . . . . . . 13
Section 4.4. Certificate of Completion . . . . . . . . . . . . . . . . . 14
Section 4.5. Phase II . . . . . . . . . . . . . . . . . . . . . , . . . . . . 14
AATICLE V .
Insurance and Condemnation
Seetion 5.1. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.2. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . 16
AItTICLE VI
Tas Increment; Taxes
Section 6.1. Right to Collect Delinquent Taxes . . . . . . . . . . . . . . . . i�
Section 6.2. Reduction of Taxes . . . . . . . . . . . . . . . . . . .
Section 6.3 Tax Increment Guarantee . . . . . • . • • • • • • • • • • 17
Section 6.4. Assessment Agreement . . . . . . . . • • • • • • 18
8JH83092 •
R9230-5 1
�,. .^ ,
ARTICLE VII
Mort�sge Financin�
Section 7.1. Mortgage Financing . . . . . . . . . . . . . . . 19
Section 7.2. Authority's Option to Cure Default an Mortgage � . . . . . . . 19
ARTICLE VIII
Prohi'bitions A�ainst Assi�nment and Transfer; Indemnif'cat3on
Section 8.1. R,epresentation as to Redevelopment . . . . . . . . . . . . . . 20
Section 8.2. Prohibition Against Itedeveloper's Transfer of
Property and Assignment of Agrcement . . . . . . . . . . . . 20
Section 8.3. Release and Indemnification Covenants . . . . . . . . . . . . . 22
ASTICLE IX
Events of Default
Section 9.1. Events of Default Defined . . . . . . . . . . . . . . . . . . . 23
Section 9.2. Remedies on Default . . . . . . . . . . . . . . . . . . . . . 23
Section 9.3. No Kemedy Exclusive . . . . . . . . . . . . . . . 23
Seetion 9.4. No Additional Waiver Implied�by One Waiver . . . . . . . . . 23
ARTICLE X
Additional Provisions
y
' Section 10.1. Conflict of Interests;Authority Bepresentatives Not
Individually Liable . . . . . . . . . . . . . . . . . . . . 24
Section 10.2. Equal Employment Opportunity . . . . . . . . . . . . . . . . 24
Section 10.3. Restrictions on Use . . . . . . . . . . . . . . . . 24
Section 10.4. Provisions Not Merged With Deed . . . . . . . . . . . . . . 24
Section 10.5. Titles of Articles and Sections . . . . . . . . . . . . . . . . 24
Section 10.6. Notices and Demands . . . . . . . . . . . . . . . . . . . . . 24
Section 10.7. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Seetion 10.8. Recording . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5ection 10.9. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ABTICLE XI
Termination of A�reement
Section 11.1. Option to Terminate . . . . . . . . . . . . . . . . . . 26
Section 11.2. Aetion to Terminate . . . . . . . . . . . . . . . . . . . . . 26
Section 11.3. Effect of Termination . . . . . . . . . . . . . . . . . . . . . 26
TESTIMONItJM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2?
SIGNATUItES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2?
SCHEDULE A Description of Redevelopment Property
SCHEDULE B Public Redevelopment Costs
SCHEDULE C Certificate of Completion
SCHEDULE D Assessment Agreement
SCHEDULE E Authorizing Resolution
SJ883092
R9230-5 11
. /J 1 t J'1 . . .
CONTBACT F08 PBIVATE BEDEVELOPMENT
TIiIS AGREEMENT, made on or as of the day of , 1995, by and
between the R,osemount Port Authority, a public body corporate and politic {the
"Authority"), established pursuant to Minnesota Statutes, Section 469.0813
(hereinafter referred to as the "Aet"), and Keystone Properties, L.L.C., a
Minnesota limited liability company (the "Redeveloper").
WITNESSETH:
WHEREAS, the Authority was created pursuant to the Act and was authorized
to transaet business and exercise its powers by a resolution of the City Council of
the City of Rosemount ("City"); and
WHEREAS, the Authority has undertaken a program to promote economic
development and job opporturuties and to promote the redevelopment of la.nd which
is underutilized within the City, and in this connection created a redevelopment
project known as the �Zosemount Redevelopment Project (hereinafter referred to as
the "Project") in an area (hereinafter referred to as the "Project Area") located in
the City and a Tax Increment Financing District No. 1-2 (the "TIF District") with
the Project Area, all pursuant to the Act and Minnesota Statutes, Section 469.001 to
469.047 (the "HRA Act"); and
WHEREAS, pursuant to the HRA Aet, the Authority is authorized to acquire �
real property, or iuterest therein, and to undertake certain aetivities to prepare
sueh real property for development by private enterprise; and
WHEREAS, in order to achieve the objeetives of the Project Plan the Authority
is prepared to assist in the development of real property in the Project Area, more
particularly described in Schedule A annexed hereto and made a part hereof (which
property as so described is hereinafter referred to as the "Redevelopment
Property") and to pay certain public redevelopment costs of the Project, in order to
bring about redevelopment in accordance with the Redevelopment Plan and this
Agreement; and �
WHEREAS, the Authority believes that the redevelopment of the Project Area
pursuant to this Agreement, and fulfillment generally of this Agreement, are in the
vital aud best interests of the City and the health, safety, morals, and welfare of its
residents, and in accord with the public purposes and provisions of the applicable
State and local laws and requirements under whieh the Project has been undertaken
and is being assisted. .
NOW, THEREFORE, in consideration of the premises and the mutual obligations
of the parties hereto, each of them does hereby covenant and agree with the other
as follows:
SJH83092
R8230-5 1
�i ° 1
ARTICLE I
• Definitions
Section 1.1. Definitions. In this Agreement, unless a different meaning
clearly appears from the context:
"Act" means Mi.nnesota Statutes, Section 469.0813.
"Agreement" means this Agreement, as the same may be from time to time
modified, amended, or supplemented.
"Authority" means the Bosemount Port Authority, or any successor or assign.
"Authorizing Resolution" means the resolution of the Authority, substa.ntially
in the form of the attached Schedule E to be adopted by the Authority to authorize
the issuance of the Notes.
"Certificate of Completion" means the certifica.tion provided to the
Redeveloper, or the purchaser of any part, parcel or unit of the Redevelopment
Property, pursuant to Section 4.4 of this Agreement.
"City" means the City of Rosemount, Minnesota.
4
"Construction Plans" means the plans, specifications, drawings and related
documents on the construction work to be performed by the Redeveloper on the
Redevelopment Property which (a) shall be as deta.iled as the plans, specifications,
drawings and related documents which are submitted to the appropriate building
officials of the City, and (b) shall include at least the following for each building:
(1) site plan; (2) foundation plan; (3) basement plans; (4) floor plan for each floor;
(5) cross sections of each (length and width); (6) elevations (all sides); (7)
landscape plan; and (8) such other plans or supplements to the foregoing plans as
the Authority may reasonably request to allow it to ascertain the nature and quality
of the proposed construetion work.
"County" means the County of Dakota, Minnesota.
"Event of Default" means an action by the Redeveloper listed in Article IX of
this Agreement.
"HRA Act" means Minnesota Statutes, Sections 469.001 to 469.047, as
amended.
"Holder" means the owner of a Mortgage.
"Maturity Date" means the date on which both the TIF Bonds and Notes are
finally paid or.defeased in accordanee with their terms.
"Minimum Improvements" means the construetion on the Redevelopment
Property of approximately 25,000 square foot motel and restaurant ("Phase I'�) and
additional commercial improvements specified in Section 4.5 hereof ("Phase II").
SJB83092
R5230-5 2
.,� , ,
"Mortgage" means any mortgage aiade by the Redeveloper which is secured,
in whole ar in part, with the 8edevelopment Praperty and which is a permitted
encumbrance pursuant to the provisions of Article VIII of this Agreement.
"Note or Notes" means any Tax Increment Revenue Note to be issued under
Section 3.8 hereof and pursuant to the Authorizing ftesolution.
"Project" means the Authority's Rosemount Bedevelopment Project.
"Project Area" means the real property located within the boundaries of the
Project.
"8edeveloper" means Keystone Properties, L.L.C., or its permitted
successors and assigns.
"Redevelopment Property" means the real property described in Schedule A
of this Agreement including any improvements constructed or to be constructed
thereon.
"Redevelopment Plan" means the Authority's Project Plan for the Project as
amended December 20, 1994 and as it may be further amended.
"State" means the State of Minnesota.
"Tax Increment" means that portion of the real property taxes which is paid �
with respect to the Redevelopment Property and which is remitted to the Authority
as tax increment pursuant to the Tax Increment Act.
"Tax Increment Act" means the T� Increment Financing Act, Nlinnesota
Statutes, Sections 469.174 to 469.179, as amended.
"Tax Increment Bonds" or "TIF Bonds" means the bonds to be issued under
Section 3.7 hereof, and any bonds issued to refund such bonds.
"Tax Increment District" or "TIF District" means the Authority's Tax
Increment Financing District No. 1-2.
"Tax Increment Plan" or "TIF Plan" means the Authority's Tax Increment
Financing Plan for Ta�c Inerement Financiug District No. 1-2, as approved December
20, 1994 and as it may be amended.
"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 district court, the tax court of the State, or the State Supreme Court.
"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, prolonged adverse weather or acts of God, fire or other
casualty to the Minimum Improvements, litigation commenced by third parties which,
by injunetion or other similar judicial action, directly results in delays, or acts of
any federal, state or local governmental unit {other than the Authority in exereising
its rights under this Agreement) whieh directly result in delays. Unavoidable
Delays shall not include delays in the Redeveloper's obtaining of permits or
governmental approvals necessary to enable construction of the Minimum
SJH83092
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Improvements by the dates such construction is required under Section 4.3 of this
Agreement.
4
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. . . i
ABTICLE II
8epresentatioas and Warranties
Section 2.1. Representations by the Authority. The Authority makes the
following representations as the basis for the undertaking on their part herein
contained:
(a) The Authority is a port authority duly organized and existing under the
laws of the State. Under the provisions of the Aet, the Authority has the power to
enter into this Agreement and carry out its obligations hereunder.
(b) The activities of the Authority are undertaken for the purpose of
fostering the development of certain real property which for a variety of reasons is
presently unutilized and underutilized and for the purpose of promoting eeonomic
development and the creation of employment opportunities.
Section 2.2. Representations and Warranties bv the Redeveloper. The
Redeveloper represents and warrants that:
(a) The Redeveloper is a limited liability comp�ny, duly organized and in
good standing under the laws of Minnesota, is not in violation of any provisions of
its articles of incorporation, bylaws or the laws of the State, is duly authorized to
transact business within the State, has-power to enter into tYus Agreement and has �
duly authorized the execution, delivery and performance of this Agreement by
proper action of its board of directors.
(b) The Redeveloper will construct, operate and maintain the Miriimum
Improvements in accordance with the terms of this Agreement, the Redevelopment
Plan and all local, state and federal laws and regulations (including, but not limited
to, environmental, zoning, building code and public health laws and regulations).
(c) The Redeveloper has received no notice or communication from any
local, state or federal official that the activities of the R.edeveloper or the Authority
in the Project Area may be or will be in violation of any environmental law or
regulation (other than those notices or commurucations of which the Authority is
aware). The Redeveloper is aware of no facts the existence of which would cause it
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) The R.edeveloper will construct the Niinimum Improvements in accordance
with all local, state or federal energy-conservation laws or regulations.
(e) The Redeveloper will obtain, in a timely manner, all required permits,
licenses and approvals, and will meet, in a timely manner, all requirements of all
applicable local, state and federal laws and regu2ations which must be obtained or
met before the Minimum Improvements may be lawfully constructed.
(f) Neither the execution and delivery of this Agreement, the consu�mation
of the transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement is prevented, limited by or confliets with or
results in a breach of, the terms, conditions or provisions of any restriction or any
evidences of indebtedness, agreement or instrument of whatever nature to which the�
SJB83092
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,., ,. �
Redeveloper is now a party or by which it is bound, or constitutes a default under
any of the foregoing.
(g) Whenever any Event of Default occurs and if the Authority 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 Redeveloper under this Agreement, the Redeveloper
agrees that it shall, within ten days of written demand by the Authority, pay to the
Authority the reasonable fees of such attorneys and such other expenses so incurred
by the Authority.
(h) The proposed redevelopment by the Redeveloper hereunder would not
occur but for the tax increment financing assistanee being provided by the Authority
hereunder.
�
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ARTICLE III
A�equisitzon of Property; :
Public Imvrovements
Section 3.1. Status of Property. The Redevelopment Property is currently
owned by a third party, with whom the Redeveloper intends to enter a purchase
agreement to acquire. Within 10 days after the date of such purchase agreement, the
Redeveloper shall provide to the Authority a copy of the purchase agreement for
review and approval.
Seetion 3.2. Land Acquisition Costs. The Authority is authorized to acquire
real property and convey such property to private entities a# a price determined by
the Authority in order to facilitate development or redevelopment of the property.
The Authority has determined that, in order to make development of the Mirumum
Improvements financially feasible, it is necessary to reduce the cost of aequisition
of the Redevelopment Property. The Authority has also determined that, in light of
potential environmental contamination of the Redevelopment Property and potential
liability that could be incurred by the Authority if the Authority takes title to the
R.edevelopment Property, it is in the best interest of the Authority for the
Redeveloper to acquire the Redevelopment Property directly from the current owner.
The Authority will reimburse the Bedeveloper for the cost of acquisition of the
Redenelopment Property in the maximum amount of$?00,000, or the amount that the
Authority, in its sole discretion, deems is supported by a professional appraisal of �
the Redevelopment Property, whichever is less, through issuance of the Note in
accordance with the terms of Section 3.8 hereof.
Section 3.3. Title. (a) Prior to acquisition of the Redevelopment
Property, and as a condition to the Authority's obligation to issue the Notes, the
Redeveloper shall obtain and furnish to the Authority a commitment for the issuance
of a policy of title insurance for the Redevelopment Property. The Authority shall
have ten (10) days from the date of its receipt of such commitment to review the state
of title to the Redevelopment Property and to provide the Redeveloper with a list of
written objections to such title. Upon receipt of the Authority's list of written
objections, the Redeneloper shall proceed in good faith and with all due diligence to
attempt to cure the objections made by the Authority. Not earlier than eleven days
following the date the Authority shall have received a commitment for the issuance
of a policy of title insura.nce for the Redevelopment Property from the R.edeveloper
or, in the event the Authority shall have provided the Redeveloper with a list of
written objections, within ten (10) days after the date that all such objections have
been cured to the reasonable satisfaction of the Authority, the Redeveloper shall
proceed with the acquisition and conveyance of the Redevelopment Property. In the
event that the Redeveloper has failed to cure objections within sixty (60) days after
its receipt of the Authority's list of such objections, either the Redeveloper or the
Authority may by the giving of written notice to the other, terminate this
Agreement, upon the receipt of which this Agreement shall be null and void and
neither party shall have any liability hereunder. The Authority shall have no
obligation to take any action to clear defects in the title to the Redevelopment
Property.
Section 3.4. Soil Conditions. The 8edeveloper acknowledges that the
Authority makes no representations or warranties as to the condition of the soils on
the Redevelopment Property or its fitness for construction of the Minimum
SJH83092
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Improvements or any other purpose for which the Redeveloper may make use of such
property. The Redeveloper further agrees that it will indemnify, defend, and hold
harmless the Authority, the City, and their governing body members, officers, and
employees, from any claims or actions arising out of the presence, if any, of
hazardous wastes or pollutants on the Redevelopment Property.
Section 3.5. Plattin�. Before commencement of construction of the Minimum
Improvements, the Redeveloper shall, at its cost, cause the Redevelopment Property
to be platted in accordance with City procedures, and subject to all conditions and
terms required by the City. The plat shall provide for streets, utilities and parcels
as necessary to permit development of the Minimum Improvements in accordanee with
this Agreement.
Section 3.6. Publie Redevelopment Costs. In order to make development of
the Minimum Improvements fivancially feasible, the Authority will reimburse the
Redeveloper for the Public Redevelopment Costs set forth in Schedule B hereof in
the maximum amount of $400,000, or the amount of $1,100,000 less the land
acquisition cost reimbursed under Seetion 3.2, whichever is greater, in accordance
with Sections 3.? and 3.8 hereof. The improvements described in Schedule B shall
be constructed in accordance with the Construction Plans prepared by the
Redeveloper and approved by the Authority and the City Engineer. Any
impronements financed as Public Redevelopment Costs that are dedicated to the City
as public streets or utilities shall also conform to the City's specifications under the
plat. The parties agree and understand that public improvements dedicated to the
City in connection with the plat are not subject to Minnesota Statutes, Section �
471.345 (relating to murucipal bidding procedures) or Seetion 574.26 (relating to
contraetor bonds), all in accordance with Minnesota Statutes, Section 462.358,
Subd. 2a. However, the Redeveloper sha11, at the Authority's request, provide the
Authority all documents relative to the construction of the improvements deseribed
in Schedule B that are reasonably necessary for the Authority to determine that the
cost of such construction is reasonable.
Section 3.7. TIF Bonds. (a) The Authority's obligations under Seetion 3.fi
hereof will be financed, in part, through issuance by the Authority or the City of
general obligation TIF Bonds secured primarily with Tax Increments generated from
the Redevelopment Property. The net proceeds of the TIF Bonds will not exceed
$200,000, and the total principal amount may inelude costs of issuance, discount and
capitalized issuance. The parties agree and understand that the TIF Bonds are not
anticipated to be tax exempt, and the Authority has no obligation to seek tax exempt
status for such bonds. The TIF Bonds shall mature no later than 15 years after the
date of issue, or 13 years after the date of first receipt of Tax Inerement based on
full value of Phase I of the Minimum Improvements, whichever period is less.
(b) At the Authority's sole discretion, in lieu of issuing or causing to be
issued the TIF Bonds, the Authority may internally finance the net amount of
$200,000 through a loan or internal note with the City. The terms of such loan or
note shall be determined by the Authority and the City, provided that the interest
rate on such obligation shall not exceed 9.00 percent and the maximum term shall be
as described in paragraph (a) above. For the purposes of this Agreement, the term
"TIF Bonds" shall include any internal financing instrument under this paragraph.
(c) The Authority's obligation to cause the TIF Bonds to be issued shall be
conditioned on all the following having oecurred:
8JH83092
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. , . ,
(i) the Redeveloper having submitted and the Authority having
approved the Motel Party, as defined in and in aecordance with Section 4.1(b)
hereof; -
(ii) the Redeveloper having submitted to the Authority evidence of
financing as required under Section ?.1;
(iii) the 8edeveloper having submitted and the Authority having
approned Construetion Plans for the Minimum Improvements and all
improvements described as Public Redevelopment Costs in Schedule B;
(iv) the Authority having reviewed and approved title to the
Redevelopment Property as set forth in Section 3.3;
(v) the Authority having reviewed and approved the purchase
agreement between the Redeveloper and the owner of the Redevelopment
Property.
(vi) the Redeveloper having aequired title to and possession of the
ftedevelopment Property;
(vii) a final plat of the Redevelopment Property having been approved
by all relevant entities and recorded;
(viii) the Authority or City having the legal power to issue the TIF �
Bonds, and the Authority's fiscal consultant havi.ng determined that the
projected Tax Increment to be generated by Phase I of the Minimum
Improvements and pledged pursuant to Section 3.8(c) hereof is sufficient to
secure bonds iu the prineipal amount that will produce net proceeds of at least
$200,000; and
(ix) the Redeneloper not being in default under this Agreement.
(d) The proceeds of the TIF Bonds shall be disbursed in accordance with
the following terms and conditions:
(i) Proceeds in the amount of $125,000 shall be disbursed to the
Redeveloper upon satisfaction of all the following conditions: substantial
completion of the items designated in Schedule B as Public Utilities; receipt
by the Authority of evidenee satisfactory to the Authority that the
. Redeveloper has paid at least $125,OQ0 toward such Public Utilities or any
other Public Redevelopment Costs; and the Redeveloper not being in default
under this Agreement.
(ii) Proceeds in the amount of $?5,000 shall be disbursed to the
R.edeveloper upon satisfaction of all the following conditions: issuance of the
Certificate of Completion for Phase I of the Minimum Improvements; receipt by
the Authority of evidence satisfactory to the Authority that the 8edeveloper
has paid at least $75,000 toward Public Redevelopment Costs, excluding items
previously submitted under clause (d)(i) above; and the Redeveloper not
being in default under this Agreement.
Section 3.8. Issuance of Notes. (a) In order to reimburse land acquisition
costs as described in Seetion 3.2 and Public R.edevelopment Costs in excess of the
8JH83092 �
RS230-5 9
amounts financed with proceeds of TIF Bonds under Section 3.7, the Authority shall
issue and the Redeveloper shall purchase the Notes in accordance with the terms of
this Section. The Notes shall b�e issued in two separate series authorized and issued
on the same date. The "Series A Note" will be issued in the principal amouat of
$700,000 or such lesser amount of land acquisition cost specified in Section 3.2
hereof, and shall be issued in consideration of the Redeveloper's payment of such
land acquisition cost. The "Series B Note" will be issued in the principal amount of:
$200,000; or the amount of $1,100,OOO less the principal amount of the Series A Note
and less the amount of Public Redevelopment Costs disbursed or to be disbursed
from proceeds of the TIF Bonds under Section 3.7(d) hereof; whichever is greater,
and shall be issued in consideration of the Redeveloper's covenant to pay Public
Bedevelopment Costs in the principal amount of such Note.
(b) The Authority shall approve an Authorizing Resolution for each Note and
issue both Notes upon closing on the Redeveloper's acquisition of the Redevelopment
Property, provided the Redeveloper has complied with all other conditions set forth
in Section 3.7 for issuance of and disbursement of proceeds from the TIF Bonds,
except condition 3.7(c)(vii). The Notes shall be issued substantially in the form set
forth in Schedule E, with adjustments for the Series A Note and the Series B Note
as described in Schedule E. The final terms of each Note will be determined at the
time of issuance, provided that each Note will have a final maturity no later than that
for the TIF Bonds, each Note will have the same payment dates as the TIF Bonds
(except to the extent the Notes are issued later} and the rate of interest on each
Note shall be 9 percent.
�
(c) The Notes will be secured by "Available Tax Increment" as defined in
the Note. The parties agree and understand that the Authority will apply Tax
Increment in the following order of priority, which priority is reflected in the
definition of Available Tax Inerement:
First, 17.5 pereent of T�Inerements will be retained by the Authority
for administrative costs and other eligible expenditures under the Act and the
TIF Act;
Second, $40,000 of Tax Increment collected annually ($20,000 on each
semi-annual payment date) will be pledged by the Authority to the TIF Bonds;
Third, $40,000 of Tax Increment collected annually ($20,000 on each
semi-annual payment date) will be pledged equally and ratably to the Notes;
Fourth, 50 percent of any excess Tax Inerement remaining on any Note
payment date after making the above payments will be pledged equally and
ratably to the Notes, with the balance pledged to the TIF Bonds;
Fifth, if no TIF Bonds are outstanding as of any Note payment date, all
Tax Inerement in excess of the 17.5 percent retained by the Authority will be '
pledged equally and ratably to the Notes.
. In the event of any inconsistency between the terms of this Section and the terms of
the Notes, the terms of the Notes shall prevail.
(d) The parties agree and understand that Tax Increments generated from
Phase I of the Minimum Improvements are reasonably expected to be sufficient to pay
the principal of and interest on the TIF Bonds and a portion of the principal and •
8J883092 �
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.•.t .. � . . � . . .
interest of the Notes. However, Tax Increment may be irisufficient to pay the full
principal and interest on the Notes unless Phase II of the Minimum Improvements is
completed. The Authority euakes no representations or warranties that Tax
Increments will be sufficient to make any or all payments on the Notes.
�
8JH83092
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ABTICLE IV
Construction of Minimum Improvements
Section 4.1. Construetion of Minimum Improvements. (a) The Redeveloper
agrees that it will construct the Minimum Improvements on the Redevelopment
Property in accordanee with the approved Construction Plans and at all times prior
to the Maturity Date will operate and maintain, preserve and keep the Minimum
Improvements or cause the Minimum Improvements to be maintained, preserved and
kept with the appurtenances and every part and parcel thereof, in good repair and
condition.
(b) Before or upon submitting Construction Plans for Phase I in aecordance
with Section 4.2, the Redeveloper shall submit to the Authority the name of the motel
franchise proposed to be acquired in order to operate the motel portion of Phase I,
and the name of a development partner or manager, if any, proposed to manage the
construetion or operation of the motel (collectively, the "Motel Party"}, together
with any written materials reasonably requested by the Authority in order to review
the Motel Party under this Section. The Motel Party will be deemed approved by the
Authority unless rejected in writing by the Authority within 30 days after receipt
of the aforementioned submittal. The Authority shall be entitled to require that, in
the Authority's reasonable judgment,� the Motel Party has the qualifications to
develop and operate the motel, and that the Motel Party includes a nationally
recognized motel franehise of a type and quality aeceptable to the Authority in its �
sole discretion. If the Authority rejects the Motel Party, the Redeveloper may
submit a new Motel Party and the provisions of this Section relating to approval of
the Motel Party shall continue to apply until a Motel Party is approved by the
Authority; provided that if a Motel Party is not approved hereunder by the date
required for commencement of construetion of Phase I under Section 4.3 hereof, such
lack of an approved Motei Party shall be deemed an Event of Default hereunder and
the Authority shall have all the rights and remedies provided under Article IX
hereof, including without limitation termination of this Agreement.
Section 4.2. Construction Plans.
(a) Before issuance of the TIF Bonds and the Notes, the Redeveloper shall
submit Construction Plans to the City Building Official, who shall review such plans
under this Section on behalf of the Authority. The Construction Plans shall provide
for the construction of Phase I of the Minimum Improvements and shall be in
conformity with the Redevelopment Plan, this Agreement, and all applicable State
and local laws and regulations. The City Building Official will approve the
Construction Plans in writing if: (i) the Construction Plans conform to the terms and
conditions of this Agreement; (u) the Construetion Plans conform to the goals and
objectives of the Redenelopment Plan; (ui) the Construction Plans conform to all
applicable federal, state and local laws, ordinances, rules and regulations; (iv) the
Construction Plans are adequate to provide for construction of Phase I of the
Minimum Improvements; (v) the Construction Plans do not provide for expenditures
in excess of the funds available to the Redeveloper for construction of Phase I; and
(vi) no Event of Default has occurred. No approval by the City Building Official
shall relieve the Redeveloper of the obligation to comply with the terms of this
Agreement or of the Redevelopment Plan, applicable federal, state and local laws,
ordinances, rules and regulations, or to construct the Minimum Improvements in
accordance therewith. No approval by the City Building Official shall constitute a
8JH83092
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waiver of an Event of Default. If approval of the Construction Plans is requested
by the Redeveloper in writing at the time of submission, such Construction Plans
_ shall be deemed approved unless rejected in writing by the City Building Official,
in whole or in part. Sueh rejections shall set forth in detail the reasons therefore,
and shall be made within 30 days after the date of their receipt by the City Building
Official. If the City Building Official rejects any Construction Plans in whole or in
part, the Redeveloper shall submit new or corrected Construction Plans within 30
days after written notification to the Redeveloper of the rejection. The provisions
of this Section relating to approval, rejection and resubmission of corrected
Construction Plans shall continue to apply until the Construction Plans have been
approved by the City Building Official. The City Building Official's approval shall
not be unreasonably withheld. Said approval shall constitute a conclusive
determination that the Construction Plans (and the phase of the Minimum
Improvements construeted in accordance with said plans) comply to the Authority's
satisfaction with the provisions of this Agreement relating thereto.
(b) If the ftedeveloper desires to make any material change in the
Construction Plans after their approval by the City Building Offieial, the
Redeveloper shall submit the proposed change to the City Building Official for
approval. If the Construetion Plans, as modified by the proposed ehange, conform
to the requirements of this Section 4.2 of this Agreement with respect to such
previously approved Construction Plans, the City Building Official shall approve the
proposed change and notify the Redeveloper in writing of its approval. Such change
in the Construction Plans shall, in any enent, be deemed approved by the Authority
unless rejected, in whole or in part, by written notice by the City Building Official �
to the Itedeveloper, setting forth in detail the reasons therefor. Sueh rejection shall
be made within ten (10) days after receipt of the notice of such change. The City
Building Official's approval of any such ehange in the Construction Plans will not be
unreasonably withheld.
Section 4.3. Commencement and Completion of Construction. Subject to
Unavoidable Delays, the Redeveloper shall commence construetion of Phase I of the
Minimum Improvements by Oetober 1, 1995. Subjecf to Unavoidable Delays, the
Redeveloper shall complete the construction of Phase I the Minimum Improvements by
December 15, 1996. All work with respect to the Minimum Improvements and related
site improvements to be constructed or provided by the 8edeveloper on the
Redenelopment Property shall be in conformity with the Construction Plans as
submitted by the ftedeveloper and approved by the City Building Official.
The Redeveloper agrees for itself, its successors and assigns, and every
suecessor in interest to the Redevelopment Property, or any part thereof, that the
Redeveloper, and such successors and assigns, shall promptly begin and diligently
prosecute to completion the redevelopment of the ftedevelopment Property through
the construction of Phase I of the Minimum Improvements thereon, and that such
construction shall in any event be commenced and completed within the period
specified in this Section 4.3 of this Agreement. Subsequent to acquisition of the
Redevelopment Property, or any part thereof, and until construction of the Minimum
Impronements has been completed, the Redeveloper shall make reports, in such
detail and at such times as may reasonably be requested by the Authority, as to the
actual progress of the Redeveloper with respect to such construction.
8JH83092
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Section 4.4. Certificate of Completion.
(a) Promptly after substantial completion of each phase of the Minimum
Improvements in accordance with those provisions of the Agreement relating solely
to the obligations of the Redeveloper to construct such phase of the Minimum
Improvements (including the dates for beginning and completion thereof), the
Authority will furnish the Redeveloper with the Certifieate shown as Exhibit C.
Such certification by the Authority shall be (and it shall be so provided in the Deed
and in the certification itself) a conclusive determination of satisfaction and
termination of the agreements and covenants in the Agreement and in the Deed with
respect to the obligations of the Redeveloper, and its successors and assigns, to
construct the Minimum Improvements and the dates for the beginning and completion
thereof. Such certification and such determination shall not constrtute evidence of
compliance with or satisfaetion of any obligation of the Redeveloper to any Holder of
a Mortgage, or any insurer of a Mortgage, securing money loaned to finance the
Niinimum Improvements, or any part thereof.
(b) The certificate provided for in this Section 4.4 of this Agreement shall
be in such form as will enable it to be recorded in the proper office for the
recordation of deeds and other instruments pertaining to the Redevelopment
Property. If the Authority shall refuse or fail to provide any certification in
accordance with the provisions of this Section 4.4 of this Agreement, the Authority
shall, within thirty (30) days after written request by the Redeveloper, provide the
Redeveloper with a written statement, indicating in adequate detail in what respects
the Redeveloper has failed to complete the phase of the Minimum Improvements in �
aceordauce with the provisions of the Agreement, or is otherwise in default, and
what measures or acts it will be necessary, in the opinion of the Authority, for the
Redeveloper to take or perform in order to obtain such certification.
(c) The construction of each phase of the Minimum Improvements shall be
deemed to be substantially completed when the Redeveloper has received a certificate
of occupancy from the responsible inspecting authority.
Section 4.5. Phase II. Development of the balance of the Redevelopment
Property not developed as Phase I shall be deemed Phase II, which Phase II shall
consist of commercial facilities that are compatible with Phase I and consistent with
all local, state and federal laws and regulations. Before commencing construction
of any portion of Phase II, the Redeveloper shall submit Construction Plans to the
Authority for review and approval in accordance with Section 4.2. hereof. The
Redeveloper shall use its best efforts to complete construction of all Phase II
. improvements by December 15, 2000, provided that failure to complete construction
by such date shall not be an Event of Default hereunder. The parties agree and
understand that Tax Increments attributed to Phase II of the Minimum Improvements
or any portion thereof will be pledged to the TIF Bonds and the Notes, and that the
Authority has no obligation to provide financial assistance in connection with Phase
II of the Minimum Improvements other than as set forth in this Agreement.
9J883092 •
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.•, •a ,
AxTICLE V
Insurance and Condemnation
Section 5.1. Insurance.
(a) The Redeveloper will provide and maintain at all times during the
process of constructing the Minimum Improvements an All Risk Broad Form Basis
Insurance Policy and, from time to time during that period, at the request of the
Authority, furnish the Authority with proof of payment of premiums on policies
covering the following:
(i) Builder's risk insurance, written on the so-called"Builder's Risk
-- Completed Value Basis," in an amount equal to one hundred percent (100$�
of the insurable value of the Minimum Improvements at the date of completion,
and with coverage available in nonreporting form on the so-called "all risk"
form of policy. The interest of the Authority shall be protected in accordance
with a clause in form and content satisfactory to the Authority;
{ii) Comprehensive general liability insurance (including operations,
contingent liability, operations of subcontractors, completed operations and
contractual liability insurance) together with an Owner's Contraetor's Poliey
with limits against bodily injury and property damage of not less than
$1,000,000 for each occurrence (to accomplish the above-required limits, an �
umbrella excess liability policy may be used); and
(iii) Workers' compensation insurance, with statutory coverage.
(b) Upon completion of construction of the Minimum Improvements and prior
to the Maturity Date, the Redeveloper shall maintain, or cause to be maintained, at
its cost and expense, and from time to time at the request of the Authority shall
furnish proof of the payment of premiums on, insuranee as follows:
(i) Insuranee against loss and/or damage to the Minimum
Improvements under a policy or policies covering sueh risks as are ordinarily
insured against by similar businesses.
(ii) Comprehensive general public liability insurance, including
personal injury liab'�1'rty (with employee exclusion deleted), against liability
for injuries to persons and/or property, in the minimum amount for each
oceurrenee and for each year of$1,000,000, and shall be endorsed to show the
Authority as additional insured.
(iii) Suehotherinsurance,includingworkers`compensationinsurance
respecting all employees of the Redeveloper, in such amount as is customarily
carried by like organizations engaged in like activities of comparable size and
liability exposure; provided that the Redeveloper may be self-insured with
. respect to all or any part of its liability for workers' compensation.
(c) All insurance required in Article V of this Agreement shall be taken out
and maintained in responsible insurance companies seleeted by the Redeveloper
which are authorized under the laws of the State to assume the risks covered
thereby. Upon request, the Redeveloper will deposit annually with the Authority�
8JB83092
R9230-5 1 rJ
policies evidencing all such insurance, or a certificate or certificates or binders of
the respective insurers stating that such insuranee is in force and effect. Unless
otherwise provided in this Article V of this Agreement each policy shall contain a
provision that the insurer shall not cancel nor modify it in such a way as to reduce
the coverage provided below the amounts required herein without giving written
notice to the Redeveloper and the Authority at least thirty (30) days before the
cancellation or modification becomes effectine. In lieu of separate policies, the
Redeveloper may maintain a single policy, blanket or umbrella policies, or a
combination thereof, having the coverage required herein, in whieh event the
8edeveloper shall deposit with the Authority a certificate or certificates of the
respective insurers as to the amount of coverage in force upon the NLinimum
Improvements.
(d) The Redeveloper agrees to notify the Authority immediately in the case
of damage exceeding $100,00Q in amount to, or destruction of, the Minimum
Improvements or any portion thereof resulting from fire or other casualty. In sueh
event the Redeveloper will forthwith repair, reconstruct and restore the Minimum
Improvements to substantially the same or an improved condition or value as it
existed prior to the event causing such dauiage and, to the extent necessary to
accomplish such repair, reconstruetion and restoration, the Redeveloper will apply
the Net Proceeds of any insurance relating to such damage received by the
Redeveloper to the payment or reimbursement of the costs thereof.
The Redeveloper shall complete the repair, reconstruction and restoration of
the Minimum Improvements, whether or not the Net Proceeds of insurance received �
by the Redeveloper for such purposes are sufficient to pay for the same. Any Net
Proceeds remaining after completion of such repairs, construetion and restoration
shall be the property of the ftedeveloper.
(e) In lieu of its obligation to reconstruct the Minimum Improvements as set
forth in this Section, the Redeveloper shall have the option of paying to the
Authority an amount that, in the opinion of the Authority and its fiscal consultant,
is sufficient to redeem, at their next earliest redemption date, any outstanding TIF
Bonds secured by Tax Increments from the Minimum Improvements destroyed.
(f) The Redeveloper and the Authority agree that all of the insurance
provisions set forth in this Article V shall terminate upon the termination of this
Agreement.
Section 5.2. Subordination. Notwithstanding anything to the contrary
contained in this Article V, the rights of the Authority with respect to the receipt
and application of any proceeds of insurance shall, in all respects, be subject and
subordinate to the rights of any lender under a Mortgage approved pursuant to
Article VII of this Agreement.
SJH83092
R8230-5 i s
ARTICLE VI
Tax Increment; Taxes
Section 6.1. Ri�ht to Collect Delinquent Taxes. The Redeneloper
acknowledges that the Authority is providing substantial aid and assistance in
furtherance of the Redevelopment through issuance of the TIF Bonds and the Notes.
The Redeveloper understands that the Tax Increments pledged to the TIF Bonds and
the Notes are derived from real estate taxes on the Redevelopment Property, which
taxes must be promptly and timely paid. To that end, the 8edeneloper agrees for
itself, its successors and assigns, in addition to the obligation pursuant to statute
to pay real estate taxes, that it is also obligated by reason of this Agreement to pay
before delinquency all real es#ate taxes assessed against the Redevelopment Property
and the Minimum Improvements. The Redeveloper acknowledges that this obligation
creates a contractual right on behalf of the Authority to sue the Bedeneloper or its
successors and assigns to collect delinquent real estate t�es and any penalty or
interest thereon and to pay over the same as a tax payment to the county auditor.
In any such suit, the Authority shall also be entitled to recover its costs, expenses
and reasonable attorney fees.
Section 6.2. Reduction of Taxes. The Redeveloper agrees that prior to the
Maturity Date it will not cause a reduction in the real property taxes paid in respect
of the Redevelopment Property through: (A) willful destruetion of the
Redevelopment Property or any part thereof; or (B) willful refusal to reconstruct �
damaged or destroyed property pursuant to Section 5.1 of this Agreement, except
as provided in Section 5.1(e) . The Bedeveloper also agrees that it will not, prior
to the Maturity Date, apply for a deferral of property tax on the Redevelopment
Property pursuant to Minnesota Statutes, Section 469.181, or any similar law, or
convey or transfer or allow conveyanee or transfer of the Redevelopment Property
to a.ny entity that is exempt from payment of real property taxes under State law.
Section 6.3. Tax Increment Guarantee. {a) Subsequent to the issuance of
the TIF Bonds and eontinuing until such TIF Bonds are paid, defeased or redeemed
in accordance with their terms, in the event the Authority, on a date 30 days prior
to the date that the Authority is required to make any principal or interest payment
with respect to the TIF Bonds, has not received sufficient Tax Increments to pay the
next succeeding principal or interest payment on the TIF Bonds, the Authority shall
provide notice to the ftedeveloper of such fact and the amount of the defieiency.
Ten days after receipt of such notice of deficiency, the Redeveloper shall be liable
for and shall pay to the Authority sueh deficiency. Failure on the part of the
Authority to provide the notice of the deficiency when required pursuant to this
Section shall not relieve the Redeveloper of its obligation to make the required
payment 10 days after actual notice of the deficiency is provided by the Authority
to the Redeveloper.
(b) The obligation of the Redeveloper to make the payments provided for in
this Section shall be absolute and unconditional irrespective of any defense or any
rights of setoff, recoupment or counter-claim it might otherwise hane against the
Authority or any other government body or other person. The 8edeveloper shall not
fail to make any required payments for any cause or circumstance whatsoener,
including any change in property tax laws or other laws or any other event even if
beyond the control of the Redeveloper.
SJB83092
R4230-5 1�
(e) In the event the Redeveloper fails to comply with its obligation to pay the
deficiency as set forth in this Section when due, the Authority shall have, in
addition to any other remedy available to it hereunder or at law including the right
to sue to collect the payment not made when due, the right to declare immediately
due and payable by the Redeveloper an amount that, in the reasonable judgment of
the Authority's fiscal consultant, is necessary to pay, defease or redeem all
outstanding TIF Bonds.
Section 6.4. Assessment A�reement. Upon Redeveloper's acquisition of the
Redevelopment Property, the Redeveloper shall, with the Authority, execute an
Assessment Agreement pursuant to Minnesota Statutes, Section 469.1??, subd. 8,
specifying an assessor's minimum Market Value for the Redevelopment Property
together with Phase I of the Minimum Improvements. The amount of the minimum
Market Value shall be no less than$1,750,000 as of January 2, 1997, notwithstan.ding
the progress of construetion of Phase I of the Niinimum Improvements by those dates.
The Assessment Agreement shall be substantially in the form attached hereto
as Schedule D. Nothing in the Assessment Agreement shall limit the discretion of the
assessor to assign a ma.rket value to the property in excess of such assessor's
minimum Market Value nor prohibit the Redeveloper from seeking through the
exercise of legal or administrative remedies a reduction in such market value for
property tax purposes, provided however, that the Redeveloper shall not seek a
reduction of such market value below the assessor's mi*��mum Market Value in any
year so long as such Assessment Agreement shall remain in effect. The Assessment y
Agreement shall remain in effect for the period described in Schedule D.
8JH83092
R8230-5 1 g
ARTICLE VII
• Mortgag� Financin�
Section 7.1. Mort�a�e Financing.
(a) Before conveyanee of the Redevelopment Property to the Redeveloper,
the Redeveloper shall submit to the Authority evidence of one or more commitments
for mortgage financing which, together with committed equity for sueh construction,
is sufficient for the construction of P2�iase I of the Minimum Improvements. Such
commitments may be submitted as short term finaneing, long term mortgage
financing, a bridge loan with a long term take-out financing eommitment, or any
combination of the foregoing. Such commitment or commitments for short term or
long term mortgage financing shall be subject only to such conditions as are normal
and customary in the mortgage banking industry.
(b) If the Authority finds that the mortgage financing is sufficiently
committed and adequate in amount to provide for the construction of Phase I of the
Minimum Improvements then the Authority shall notify the Redeveloper in writing of
its approval. Such approval shall not be unreasonably withheld and either approval
or rejection shall be given within thirty (30) days from the date when the Authority
is provided the evidence of mortgage financing. A failure by the Authority to
respond to such evidence of mortgage financing shall be deemed to constitute an
approval hereunder. If the Authority rejects the evidence of mortgage financing as `
inadequate, it shall do so in writing specifying the basis for the rejection. In any
event the Redeveloper shall submit adequate evidence of mortgage financing within
thirty (30) days after such rejection.
Section 7.2. Authoritv's Option to Cure Default on Mort�a�e. In the event
that there occurs a default under any Mortgage authorized pursuant to Article VII
of this Agreement, the Redeveloper shall cause the Authority to receive copies of
any notice of default received by the Redeveloper from the holder of such Mortgage.
Thereafter, the Authority shall have the right, but not the obligation, to cure any
such default on behalf of the Redeveloper within such cure periods as are available
to the Redeveloper under the Mortgage documents.
8JB83092 '
ae23o-s 19
ARTICLE VIII
Prolu'bitions A�ainst-Assi�nment and Transfer; Indemnif'cation
Section 8.1. Representation as to Redevelopment. The R.edeveloper
represents aud agrees that its purchase of the 8edevelopment Property, and its
other undertakings pursuant to the Agreement, are, and will be used, for the
purpose of redevelopment of the Redevelopment Property and not for speculation in
land holding.
Section 8.2. Prohibition Against Redeveloper's Transfer of Property and
Assi�nment of A�reement. The Redeveloper represents and agrees that prior to
issuance of the Certificate of Completion for each phase of the Minimum
Improvements:
(a) Exeept only by way of security for, and only for, the purpose of
obtaining financing necessary to enable the ftedeveloper or any successor in interest
to the Redevelopment Property, or any part thereof, to perform its obligations with
respect to the Minimum Improvements under this Agreement, and any other purpose
authorized by this Agreement, the Redeveloper has not made or created and will not
make or create or suffer to be made or created any total or partial sale, assignment,
conveyance, or lease, or any trust or power, or transfer in any other mode or form
of or with respect to the Agreement or the Redevelopment Property or any part
thereof or any interest therein, or any contract or agreement to do any of the same, �
without the prior written appronal of the Authority unless #he Redeveloper remains
liable and bound by this Redevelopment Agreement in which event the Authority's
approval is not required. Any such transfer shall be subject to the provisions of this
Agreement.
(b) In the event the Aedeveloper, upon transfer or assignment of the
ftedevelopment Property or any portion thereof, seeks to be released from its
obligations under this Redevelopment Agreement as to the portions of the
Redevelopment Property that is trausferred or assigned, the Authority and City
shall be entitled to require, except as otherwise provided in the Agreement, as
conditions to any such release that:
(i) Any proposed transferee shall have the qualifications and
financial responsibility, in the reasonable judgment of the Authority and City,
necessary and adequate to fulfill the obligations undertaken in this Agreement
by the Redeveloper as to the portion of the Redevelopment Property to be
transferred.
(ii) Any proposed transferee, by instrument in writing satisfactory
to the Authority and in form recordable among the land records, shall, for
itself and its suceessors and assigns, and expressly for the benefit of the
Authority, have expressly assumed all of the obligations of the Redeveloper
under this Agreement as to the portion of the Redevelopment Property to be
transferred and agreed to be subject to all the conditions and restrictions to
� which the Redeveloper is subject as to such portion; provided, however, that
the fact that any transferee of, or any other successor in interest whatsoever
to, the Redevelopment Property, or any part thereof, shall not, for whatever
reason, hane assumed such obligations or so agreed, and shall not (unless and
only to the extent otherwise specifically provided in this Agreement or agreed.
SJB83092
A8230-5 20
to in writing by the Authority and the City) deprive the Authority and or City
of any rights or remedies or controls with respect to the Redevelopment
Property or any part thereof or the construction of the Minunum
Improvements; it being the intent of the parties as expx�essed in this
Agreement that (to the fullest extent permitted at law and in equity and
excepting only in the manner and to the extent specifically provided otherwise
in this Agreement) no transfer of, or change with respect to, ownership in the
8edevelopment Property or any part thereof, or any interest therein, however
consummated or occurring, and whether voluntary or involuntary, shall
operate, legally or practically, to deprive or limit the Authority of or with
respect to any rights or remedies on controls provided in or resulting from
this Agreement with respect to the Minimum Improvements that the Authority
would have had, had there been no such transfer or change. In the absence
of specific written agreement by the Authority to the contrary, no such
transfer or approval by the Authority thereof shall be deemed to relieve the
Redeveloper, or any other party bound in any way by this Agreement or
otherwise with respect to the construction of Phase I of the Minimum
Improvements, from any of its obligations with respect thereto.
(iii) Any and all instruments and other legal documents involved in
effecting the transfer of any interest in this Agreement or the Redevelopment
Property governed by this Article VIII, shall be in a form reasonably
satisfactory to the Authority.
In the event the foregoing conditions are satisfied then the Redeveloper shall be
released from its obligation under this Agreement, as to the portion of the `
Redevelopment Property that is transferred, assigned or otherwise conveyed.
After issuanee of the Certificate of Completion for the Minimum Improvements,
the Redeveloper may transfer or assign any portion of the Redevelopment Property
or the Redeveloper's interest in this Agreement without the prior written consent of
the City or the Authority, provided that the transferee or assignee is bound by all
the Redeveloper's obligations hereunder. The Redeveloper shall submit to the
Authority written evidence of any such transfer or assignment, including the
transferee or assignee's express assumption of the Redevelaper's obligations under
this Agreement. If the Redeveloper fails to provide such evidence of transfer and
assumption, the R.edeveloper shall remain bound by all it obligations under this
Agreement.
(c) Whether or not the Redeveloper seeks to be released from its obligations
under this Agreement in accordance with Section 8.2(b), upon sale, transfer or
assignment of any Phase II portion of the Redevelopment Property before
construction of any Phase II Minimum Improvements thereon, the Redeveloper shall
submit to the Authority evidence in a form satisfactory to the Authority of the total
consideration to be received by the Redeveloper upon transfer or assignment and the
square footage of the property to be transferred or assigned. The Redeneloper
agrees and understands that the Authority shall use such total consideration to
determine the Excess Sale Proceeds as defined in Section 4(b) of the Notes, which
Excess Sale proceeds shall be deemed partial prepayment of the prineipal amount of
the Notes in accordanee with the terms of Section 4(b) of each Note. Transfer of any
portion of the Redevelopment Property without compliance with the terms of this
Section shall constitute an Event of Default under this Agreement.
SJB83092
R8230-5 21
Section 8.3. Release and Indemnification Covenants.
(a) The Redeveloper•releases from and covenants and agrees that the
Authority and the City and the gaverning body members, officers, agents, servants
and employees thereof shall not be liable for and agrees to indemnify and hold
harmless the Authority and the City and the governing body members, officers,
agents, servants and employees thereof ag�inst any loss or damage to property or
any injury to or death of any person occurring at or about or resulting from auy
defect in the Minimum Improvements.
(b) Except for any willful misrepresentation or any willful or wanton
misconduct of the following named parties (inciuding any Event of Default by the
Authority under this Agreement), the Redeveloper agrees to protect and defend the
Authority and the City and the governing body members, officers, agents, servants
and employees thereof, now or forever, and further agrees to hold the aforesaid
harmless from any elaim, 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 aequisition, construction,
installation, ownership, and operation of the Minimum Improvements.
(c) The Authority and the City and the governing body members, officers,
agents, sernants and employees thereof shall not be liable for any damage or injury
to the persons or property of the Redeveloper or its officers, agents, servants or
employees or any other person who may be about the Redevelopment Praperty or
Minimum Impronements due to any act of negligenee of any person. �
(d) All covenants, stipulations, promises, agreements and obligations of the
Authority contained herein shall be deemed to be the covenants, stipulations,
promises, agreements and obligations of the Authority and not of any governing
body member, officer, agent, sernant or employee of the Authority in the individual
capacity thereof.
8J883092
A8230-5 22
AxTICLE IX
' Events of Default
Section 9.1. Events of Default Defined. The following shall be "Events of
Default" under this Agreement and the term"Event of Default" shall mean, whenever
it is used in this Agreement (unless the context otherwise provides), any failure by
any party to observe or perform any other covenant, condition, obligation or
agreement on its part to be observed or performed hereunder.
Section 9.2. Remedies on Default. Whenever any Event of Default referred
to in Section 9.1 of this Agreement oecurs, the non-defaulting party may exercise
its rights under this Section 9.2 after providing thirty days written notice to the
defaulting party of the Event of Default, but only if the Event of Default has not
been cured within said thirty days or, if the Event of Default is by its nature
incurable within thirty days, the defaulting party does not provide assurances
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 the Agreement until it receives
assurances that the defaulting party will cure its default and continue its
performance under the Agreement. �
{b) Cancel and rescind or terminate the Agreement. �
(c) In the event of Redeveloper's failure to comply with its obligation under
Section 6.1 hereof regarding payment of real property taxes, or failure to pay any
money owing to the Authority under any provision of this Agreement, terminate
either or both Notes.
(d) Take whatever action, including legal, equitable or administra.tive
action, which may appear necessary or desirable to collect any payments due under
this Agreement, or to enforce performance and observance of any obligation,
agreement, or covenant under this Agreement.
Section 9.3. No RemedY Exclusine. No remedy herein conferred upon or
reserved to the Authority or Redeveloper 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 ar omission to
exercise any right or power accruing upon any default shall impair any such right
or power or shall be construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be deemed expedient. In
order to entitle the Authority to exercise any remedy reserved to it, it shall not be
necessary to give notice, other than such notice as may be required in this Article
IX.
Section 9.4. No Additional Waiver Implied bv One Waiver. In the event any
agreement contained in this Agreement should be breached by either party and
thereafter waived by the other party, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other concurrent, previous
or subsequent breach hereunder.
8JH83092
asz3o-s 23
. „ . .
ARTICLE X
•Additional Provisions
Section 10.1. Conflict of Interests; Authoritv Representatives Not
Individually Liable. The Authority and the Aedeveloper, to the best of their
respective knowledge, represent and agree that no member, official, or employee of
the Authority or the City shall have any personal interest, direct or indirect, in the
Agreement, nor shall any such member, official, or employee participate in auy
decision relating to the Agreement which affects his personal interests or the
interests of any corporation, partnership, or association in which he is, directly or
indirectly, interested. No member, official, or employee of the Authority orthe City
shall be personally liable to the Redeveloper, or any successor in interest, in the
event of any default or breach by the Authority or City or for any amount which may
become due to the Redeveloper or successor or on any obligations under the terms
of the Agreement.
Section 10.2. Equal Emplovment Opportunity. The R,edeveloper, for itself
and its successors and assigns, agrees that during the construction of the Mi.nimum
Improvements provided for in the Agreement it will comply with all applicable
federal, state and local equal employment and non-discrimination laws and
regulations.
Section 10.3. Restrietions on Use. The Redeveloper agrees that the �
Redeveloper, and such suceessors and assigns, shall devote the Redevelopment
Property to, the operation of the Minimum Improvements as a commercial facility, and
shall not discriminate upon the basis of race, color, creed, sex or national origin in
the sale, lease, or rental or in the use or occupancy of the ftedevelopment Property
or any improvements erected or to be erected thereon, or any part thereof.
Section 10.4. Provisions Not Mer�ed With Deed. None of the provisions of
this Agreement are intended to or shall be merged by reason of any deed
transferring any interest in the Redevelopment Property and any such deed shall not
be deemed to affect or impair the provisions and covenants of this Agreement.
Section 10.5. Titles of Articles and Sections. Any titles of the several parts,
Artieles, and Sections of the Agreement are inserted for convenience of reference
only and shall be disregarded in construing or interpreting any of its provisions.
Section 10.6. Notices and Demands. Exeept as otherwise expressly provided
in this Agreement, a notice, demand, or other communication under the Agreement
by either party to the other shall be sufficiently given or delivered if it is
dispatched by registered or certified mail, postage prepaid, return receipt
requested, or delivered personally; and
(a) in the case of the Redeveloper, is addressed to or delivered personally
ta the �tedeveloper at P.O. Box 69, Rosemount, MN 55068; and
(b) in the case of the Authority, is addressed to or delivered personally to
the Authority at City Hall, P.O. Box 510, Rosemount, Minnesota 55068-0510, Attn:
Executive Director;
SJ883092 �
A8230-5 24
. �l .
or at such other address with respect to either such party as that party may, from
time to time, designate in writing and forward to the other as provided in this
Section. .
Section 10.7. Countert�arts. This Agreement may be executed in any number
of counterparts, each of which shall constitute one and the same instrument.
Section 10.8. Recordin�. The Authority may record this Agreement and any
amendments thereto with the Dakota County recorder. The Redeveloper shall pay
all costs for recording.
Seetion 10.9. Amendment. This Agreement may be amended only by written
agreement of the parties hereto.
�
BJ883092
xszso-5 25
ARTICLE XI ,
Termination of A�;reement
Section 11.1. Option to Terminate. This Agreement may be terminated by
either the Authority or the Redeveloper if closing on acquisition of the
R,edevelopment Property by the R.edeveloper does not occur by October 1, 1995.
Seetion 11.2. Action to Terminate. Termination of this Agreement pursuant
to the first sentence of Section 11.1 must be aecomplished by the giving of ten (10}
days written notification of a party's intent to terminate.
Section 11.3. Effect of Termination. Following the termination or expira.tion
of this Agreement no action, claim, or demand aiay be based on any term or provision
of this Agreement. '
4
8JH83092
xszso-s 26
. •a . ,
IN WITNESS WHEREOF, the Authority has caused this Agreement to be duly
executed in its name and behalf and its seal to be hereunto duly affixed and the
Redeveloper has caused this Agreement to be duly executed in its name and behalf
on or as of the date first abone written.
ROSEMOUNT PORT AUTHORITY
By
Its Chairperson
By
Its Executive Director
STATE OF MINNESOTA )
) ss•
COUNTY OF DAKOTA )
On this day of , f995, before me, a notary publie within and
for Dakota County, personally appeared Kevin Carroll and Thomas D. Burt to me
personally known who by me duly sworn, did say that they are the Chairperson and �
Executive Director of the Rosemount Port Authority, (the "Authority") named in the
foregoing instrument; that the seal affixed to said instrument is the seal of said
Authority; that said instrument was signed and sealed on behalf of said Authority
pursuant to a resolution of its governing body; and said Kevin Carroll and Thomas
D. Burt ackuowledged said instrument to be the free act and deed of said Authority.
Notary Public
SJH83092
P8230-5 27
KEYSTONE PROPERTIES, L.L.C.
By
Its
STATE OF MINNESOTA )
- ) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 1995 by , the
of Keystone Properties, L.L.C. , on behalf of the limited liability company.
Notary Public
�
8JB83092
R8230-5 2$
SCHEDULE A :
$EDEVSGOP11�iT P80PEBTY
Lot Z, Block 4, SOUTH 80SE PAR,K ADDITION AEPLAT, according to
the recorded plat thereof, Dakota County, Minnesota, EXCEPT that
part thereof lying South of a]ine drawn from a point on the east line of
Lot 3, said Block 4, distant 360.21 feet South oP the northeast corner
of said Lot 3; thence Southeasterly to a point on the easterly line' of
said Lot 2, distant 260.00 feet Northeasterly of the southeasterly corner
of said Lot 2, as measured along the easterly line of said Lot 2, and
there terminating, AND EXCEPT the North 150 feet of the West 50 feet
of said Lot 2. .
4
SJH83042 •
xsaso-s A-1 :
. ., . �
SCHEDULE B
pUBL�C BEDEVEGOPMENT COSTS
Public Utilities
(to be constructed within roadway easement dedieated to the City)
Sanitary sewer
Water
Storm sewer
Site Preparation
Demolition of existing structures
Removal of existing fencing and other improvements
Soil corrections and soil decontamination
Onerall site grading
Other Site Improvements
Curb and gutter
Roadway construction
Road blacktop
Site drainage improvements �
On-site utility extensions
Site excanation
Landseaping
Engineering and consulting fees directly attributable to above-identified
aetivities are included within the term Public ftedevelopment Costs.
8JB83092
xsz3o-s B-1
SCHEDULE C
CER�IFICATE OF CO�LETION
Phsse
WHEREAS, the Rosemount Port Authority, a public body, corporate and politic
(the "Authority") entered that certain Contract for Private Redevelopment with
(the "Redeveloper") dated as of , 1995 (the "Contract"); and
WHEREAS, the Contract contained certain covenants and restrictions set forth
in Articles III and IV thereof; and
WHEREAS, the Redeveloper has performed all covenants and conditions insofar
as it is able in a manner deemed sufficient by the Authority to permit the execution
of this certification;
NOW, THEREFOAE, this is to certify that all building construction and other
physical improvements specified to be done and made by the Redeveloper with
respect to Phase of the Minimum Improvements (as defined in the Contract} ha,ve
been completed and the above covenants and conditions in Articles III and IV of the
Contra.ct with respect to Phase have been performed by the Redeveloper.
Dated: , 199_. ItOSEMOUNT P08T AUTHORITY �
By
Its Chair
By
Its Executive Director
9JH83092
RS230-5 G'�1
. �e . . x � . . .
STATE OF MINNESOTA )
. ) ss•
COUNTY OF DAKOTA ) -
On this day of , 1995, before me, a notary public within and
for Dakota County, personally appeared Kevin Carroll and Thomas D. Burt to me
personally known who by me duly sworn, did say that they are the Chairperson and
Executive Director of the Rosemount Port Authority, (the "Authority"} named in the
foregoing instrument; that the seal affixed to said instrument is the seal of said
Authority; that said instrument was signed and sealed on behalf of said Authority
pursuant to a resolution of its governing body; and said Kevin Carroll and Thomas
D. Burt acknowledged said instrument to be the free act and deed of said Authority.
Notary Public
4
s�s3o9a /
R3230-5 Ci��.
SCHIDULE D
ASSESSMETTT AGRE�NT
and
ASSESSOR'S CERTIFICATION
Bp and Between -
�
80SIII�OUNT PORT AUTHORITY
and
KEYSTONE PROPERTIES, L.L.C.
This Document was drafted by:
HOLMES & GBAVEN, Chartered
470 Pillsbury Center
Minneapolis, Minnesota 55402
9JH83092
xsz3o-s D-1
ASSESSMENT AGREIIK�TT
THIS AGREEMENT, made on or as of the day of ,
19_, and between the Rosemount Port Authority, a public body, corporate and
politic (the "Authority") and Keystone Properties, L.L.C. , a Minnesota limited
liability company (the "Redeveloper").
WITNESSETH, that
WHEREAS, on or before the date hereof the Authority and Redeveloper have
entered into a Contract for Private Aedevelopment dated , 1995 (the
"�tedenelopment Contract"), pursuant to which the Authority is to facilitate
development of certain property in the City of �tosemount, hereinafter referred to
as the "Property" and legally described in Exhibit A hereto; and
WHEREAS, pursuant to the Redevelopment Contract the Redeveloper is
obligated to construct a hotel and restaurant facility upon the Property (the
"Niinimum Improvements"); and-
WHEREAS, the Authority and 8edeveloper desire to establish a minimum
market value for the Property and the Minimum Improvements constructed thereon,
pursuant to Minnesota Statutes, Section 469.177, 5ubdivision 8; and
WHEREAS, the Authority and the Assessor for Dakota County (the �
"Assessor") have reviewed the preliminary plans and specifications for the Minimum
Improvements and have inspected such unprovements;
NOW, THEREFORE, the parties to this Agreement, in consideration of the
promises, covenants and agreements made by each to the other, do hereby agree as
follows:
1. The minimum market value which shall be assessed for the Property
described in Exhibit A, together with the Minimum Improvements thereon, for ad
valorem tax purposes, shall be $1,750,000 as of January 2, 1997, notwithstanding
the prog�ress of construction of such Minimum Improvements by those dates.
2. The tninimum market value herein established shall be of no further
force and effect and this Agreement shall terminate on the earlier of the following:
(a) The date of receipt by the Authority of the final payment from Dakota County of
Tax Increments from TIF Distriet No. 1-2; or (b) The date when the TIF Bonds, as
� defined in the Redevelopment Contraet have been fully paid or defeased in
accordance with their terms.
The event referred to in Sections 2(b) of this Agreement shall be evidenced
by a certificate or affidavit executed by the Authority.
3. This Agreement shall be promptly recorded by the Authority. The
Redeveloper shall pay all costs of recording.
4. Neither the preambles nor provisions of this Agreement are intended to,
nor shall they be construed as, modifying the terms of the Redevelopment Contract
between the Authority and the Redeveloper.
BJH83092 .
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5. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
6. Each of the parties has authority to enter into this Agreement and to
take all actions required of it, and has taken all actions necessary to authorize the
execution and delivery of this Agreement.
?. In the event any provision of this Agreement shall be held invalid and
unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
8. The parties hereto agree that they will, from time to time, execute,
aeknowledge and deliver, or cause to be executed, acknowledged and delivered,
such supplements, amendments and �odifications hereto, and such further
instruments as may reasonably be required for correcting any inadequate, or
incorrect, or amended description of the Property or the Minimum Improvements, or
for carrying out the expressed intention of this Agreement, including, without
limitation, any further instruments required to delete from the description of the
Pxoperty such part or parts as may be included within a separate assessment
agreement.
9. Except as provided in Section 8 of this Agreement, this Agreement may
not be amended nor any of its terms modified except by a writing authorized and
executed by all parties hereto.
�
10. This Agreement may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall constitute but
one and the same instrument.
11. This Agreement shall be governed by and construed in accordance with
the laws of the State of Minnesota.
8JH83092
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. t
ROSEMOUNT PORT AUTHORITY
By
Its Chair
By
Its Executive Director
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
On this day of , 1995, before me, a notary public within and
for Dakota County, personally appeared Kevin Carroll and Thomas D. Burt to me
personally known who by me duly sworn, did say that they are the Chairperson and
Executive Director of the Rosemount Port Authority, (the "Authority") named in the
foregoing instrument; that the seal affixed to said instrument is the seal of said
Authority; that said instrument was signed and sealed on behalf of said Authority
pursuant to a resolution of its governing body; and said Kevin Carroll and Thomas �
D. Burt acknowledged said instrument to be the free act and deed of said Authority.
Notary Public
9JH83092
A3230-5 D-4
. , . _
REDEVELOPER
By
Its
STATE OF )
) ss.
COUNTY OF )
On this day of , 19_, before me, a notary publie within
and for County, personally appeared , the of ,
a Minnesota and acknowledged the foregoing instrument on behalf of the .
Notary Public
4
SJH83092
RS230-5 D�rJ
CERTIFICATION BY COUNTY ASSESSOR
The undersigned, having reviewed the plans and specifications for the
improvements to be constructed and the market value assigned to the land upon
whieh the improvements are to be constructed, hereby certifies as follows: The
undersigned Assessor, being legally responsible for the assessment of the above
deseribed property, hereby certifies that the values assigned to the land and
improvements are reasonable.
County Assessor for the
County of Dakota
STATE OF MINNESOTA )
) ss
COUNTY OF bAKOTA )
The foregoing instrument was acknowledged before me this day of
, 19_by , the County Assessor of the County
of Dakota. "
Notary Public
8JB83092
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, � - _
EXffiBIT A of ASSESS�'sNT AGBEIIi�iT -
Legal Description of PraPex''�Y '
Lot 2, Block 4, SOUTH R.OSE PAR.K ADDITION REPLAT, aecording to
the recorded plat thereof, Dakota County, Minnesota, EXCEPT that
part thereof lying South of a line drawn from a point on the east line of
Lot 3, said Block 4, distant 360.21 feet South of the northeast corner
of said Lot 3; thence Southeasterly to a point on the easterly line of
said Lot 2, distant 260.00 feet Northeasterly of the southeasterly corner
of said Lot 2, as measured along the easterly line of said Lot 2, and
there terminating, AND EXCEPT the North 150 feet of the West 50 feet
of said Lot 2.
4
SJB83092 '
RS230-5 D�7
• A ,
SCHIDULE E
Authorizing Resolution
[Language for the Series B Note shown in braekets}
$OSEedOUNT P'ORT AUTH08ITY
RESOLUTION NO.
RESOLUTION AWARDING THE SALE OF, AND P80VIDING
THE FOB.M, TERMS, COVENANTS AND DIBECTIONS F08
THE ISSUANCE OF ITS $ TAX INCB�iT
REVENUE NOTE, SERIES 19 A [Series 19 B].
BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF ROSEMOUNT PORT
AUTHORITY, MINNESOTA ("AUTAORITY") AS FOLLOWS:
Section 1. Authorization; Award of Sale.
1.01. Authorization. The Authority and the City of Rosemount, Minnesota
(the"City") have heretofore approved the establishment of Tax Increment Financing
District No. 1-2 (the "TIF District") within the Rosemount Redevelopment Projeet
("Project"), and have adopted a t� increment financing plan for the purpose of
financing certain improvements within the Project. �
Pursuant to Minnesota Statutes, Section 469.178, the Authority is authorized
to issue and sell its bonds for the purpose of financing a portion of the public
development costs of the Project. Such bonds are payable from all or any portion of
revenues derived from the TIF bistrict and pledged to the payment of the bonds.
The Authority hereby finds and determines that it is in the best interests of the
Authority that it issue and sell its $ Tax Increment Revenue Note, Series
19_ (the "Note") for the purpose of financing certain public development costs of
the Project.
1.02. Issuance, Sale, and Terms of the Note. The Authority hereby delegates
to the Executive Director the determination of the date on which the Note is to be
issued, in aceordance with that certain Contract for Private Redevelopment between
the Authority and the Owner dated , 1995 (the "Agreement"). The Note
shall be sold to Keystone Properties, L.L.C. (the "Owner"). The Note shall be
dated the date af initial delivery thereof, and shall bear interest at the ra.te of 9.00$
per annum from the date specified in the Note to the earlier of maturity or
prepayment. The Authority shall receine in exchange for the sale of the Note the
agreement of the Owner to pay certain land acquisition costs [Public Redevelopment
Costs] under the Agreement.
Section 2. Form of Note. The Note shall 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:
SJH83092
R8230-5 E'�1
f
UNITED STATES OF AMER.ICA
STATE OF MINNESOTA
�COUNTY OF DAKOTA
ROSEMOUNT PORT AUTHORITY
CITY OF ROSEMOUNT, MINNESOTA
No. R.-1 $
TAX INCREMENT REVENUE NOTE
SERIES 19 A [B]
Date
Rate of Ori�inal Issue
9.00 $ , 19_
The Rosemount Port Authority (the"Authority"), for value received, certifies
that it is indebted and hereby promises to pay to Keystone Properties, L.L.C. or
registered assigns (the "Owner"), the principal sum of $ [or so much
thereof as has been advanced as hereinafter provided] and to pay interest thereon
at the rate of 9.00 pereent per annum, as and to the extent set forth herein.
1. Payments. Principal and interest ("Payments") shall be paid on August
1, 1998 and each February 1 and August 1 thereafter to and including February 1, -
20 "Payment Dates"), but only to the extent of Available T� Increment as �
hereinafter defined. Payments shall be applied first to accrued interest, and then
to unpaid principal. Interest accruing from the date specified in Section 2 hereof to
the first Payment Date shall be compounded semiannually on February 1 and August
1 of each year and added to prineipal.
Payments are payable by mail to the address of the Owner or such other
address as the Owner may designate upon 30 days written notice to the Authority.
Payments on this Note are payable in any coin or currency of the United Sates 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 shall accrue on the unpaid
principal, commencing on the date of original issue. Interest shall be computed on
the basis of a year of 360 days and charged for actual days principal is unpaid.
[2. Principal and Interest. (a) Upon the Date of Original Issue or on any
date thereafter through the date that is five years after the date of certification of
Tax Increment Financing District No. 1-2, the Owner may request the Issuer to
enter an advance of principal under the Note on the ledger maintained by the
Begistrar (the "Principal Advance Ledger"), by submitting to the Issuer a
certificate (the "Principal Adnanee Certificate") signed by the Owner's duly
authorized representative, containing the following: (i) a statement that each cost
identified in the Principal Advance Certificate is a Public Redevelop Cost as defined
in that certain Contract for Private Redevelopment between the Authority and the
Owner dated as of , 1995 (the "Agreement") and that no part of such cost has
been included in any previous request for reimbursement by the Authority under the
Agreement; (ii) evidence that sueh Public Redevelopment Cost has been paid or
incurred by or on behalf of the Owner; and (ui) a statement that no uncured Event
of Default has oceurred and is eontinuing under the Agreement.
8JH83092
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. .
Within 15 days after receipt of the Principal Advanee Certificate, the Issuer
shall, if the Registrar has determined that all the aforementioned requirements have
been satisfied, so notify the Owner and enter the amount requested in the Principal
Advance Ledger, such entry being dated as of the date of the Principal Advance
Certificate, provided that the amount entered on the Principal Advance Ledger shall
not exeeed the principal amount of this Note. The Issuer may, if not satisfied that
the conditions described herein have been met, return the Principal Advance
Certificate with a statement of the reasons why the Principal Advance Certificate is
not acceptable and requesting such further documentation or clarification as the
Issuer may reasonably require. The Owner ma.y submit only one Principal Advance
� Certificate.
(b) Interest at the rate stated hereiu shall accrue on unpaid principal,
commencing on the date of entry of principal on the Principal Advance Ledger in
aecordance with Section 2{a) hereof. Interest shall be computed on the basis of a
year of 360 days and charged for actual days principal is unpaid.]
3. Available Tax Increment. Payments on this Note are payable solely from
"Available Tax Increment," which shall mean, on each Payment Date:
(i) 82.5 percent of the Tax Increment generated iu the preceding six
(6) months with respect to the Redevelopment Property and remitted to the
Authority by Dakota County, all as sueh terms are defined in the Contract for
Private Redevelopment, dated as of , 1995 (the"Agreement") between
the Authority and the Owner; �
(ii) excluding Tax Increment colleeted during such six-month period in
the amount of $20,000, whieh amount is pledged to payment of principal and
interest on the TIF Bonds (as defined in the Agreement);
(iii) including the next $20,000 of Tax Increment collected during such
six-month period and available to the Authority after operation of clauses (i)
and (ii) above; and
(iv) including 50 percent of the Tax Increment collected during such
six-month period and available to the Authority after operation of clauses (i),
(ii) and {iii) above;
(iv) provided that on any Payment Date after the TIF Bonds have been
fully paid, redeemed or defeased in aecordance with their terms, Available
Tax Increment shall mean the amount described in clause (i) above.
Available T� Increment is pledged equably and ratably to this Note and any other
Note issued pursuant to the Agreement.
The Authority shall have no obligation to pay principal of and interest on this
Note on each Payment Date from any source other than Available Tax Increment, and
the failure of the Authority to pay the entire amount of principal or interest on this
Note on any Payment Date shall not constitute a default hereunder as long as the
Authority pays principal and interest hereon to the extent of Available Tax
Inerement. The Issuer shall have no obligation to make any payment on any Payment
Date if, as of sueh date there has occurred and is continuing any Event of Default
on the part of the Owner as defined in the Agreement. If the Event of Default is
thereafter cured in accordance with the Agreement, the Available Tax Increment as
8JB83092
asz3o-s E-3
, � . -
of such Scheduled Payment Date shall .be deferred and paid, without interest
thereon, on the next Payment Date after the Event of Default is cured . [The Issuer
shall have no obligation with respect to any principal amount, and no interest shall
accrue thereon, until the date of entry of such amount on the Principal Advance
Ledger in accordance with the terms of this Note.] The Authority shall have no
obligation to pay unpaid balance of principal or accrued interest that may remain
after the final Payment on February 1, 20_.
4. Optional Prepayment. (a) The principal sum and all accrued interest
payable under this Note is prepayable in whole or in part at any time by the
Authority without premium or penalty. No partial prepayment shall affect the amount
or timing of any other regular payment otherwise required to be made under this
Note.
(b) In the event the Owner, in accordance with Section 8.2 of the Agreement,
sells, transfers or assigns any Phase II portion of the Bedevelopment Property
before construction of any Phase II Minimum Improvements thereon (all as such terms
are defined in the Agreement), the consideration received by the Owner for such
unimproved property, less an amount equal to $3.50 per square foot multiplied by
the square footage of the property sold or transferred (hereinafter, the"Excess Sale
Proceeds") shall be applied in accordance with this Section. Fifty percent of the
Excess Sale Proceeds shall be deemed to constitute, and shall be applied to,
prepayment of the principal amount of this Note and any other Note issued pursuant
to the Agreement, such application beiug made pro rata based on the outstanding
prineipal of the Notes. Any such prepayment shall be recorded by the Registrar in `
its records for the Note.
5. Termination. At the Authority's option, this Note shall terminate and
the Authority's obligation to make any payments under this Note shall be discharged
upon the occurrence of an Event of Default on the part of the Redeveloper as
described in Section 9.2(c) of the Agreement, but only if the Event of Default has
not been cured in accordance with Section 9.2 of the Agreement.
6. Nature of Obli�ation. This Note is one of an issue in the total principal
amount of $ , all issued to aid in financing certain public redevelopment
costs and administrative costs of a Project undertaken by the Authority pursuant to
Minnesota Statutes, Sections 469.001 through 469.047, and is issued pursuant to an
authorizing resolution (the "Resolution") duly adopted by the Authority on
, 19_, and pursuant to and in full conformity with the Constitution and
laws of the State of Ntinnesota, including Minnesota Statutes, Sections 469.174 to
469.179. This Note is a limited obligation of the Authority which is payable solely
from Available Tax Inerement pledged to the payment hereof under the Resolution.
This Note and the interest hereon shall not be deemed to constitute a general
obligation of the State of Minnesota or any political subdivision thereof, including,
without limitation, the Authority. Neither the State of Minnesota, nor any political
subdivision thereof shall 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.
?. Registration and Transfer. This Note is issuable only as a fully
registered note without coupons. As provided in the Resolution, and subject to
certain limitations set forth therein, this Note is transferable upon the books of the
SJ883092
RS230-5 E-4
. , .
Authority kept for that purpose at the principal office of the Executive Director, by
the Owner hereof in person or by such Owner's attorney duly authorized in writing,
upon surrender of this Note together with a written instrument of transfer
satisfactory to the Authoritq, duly executed by the Owner. Upon such traasfer or
exchange and the payment by the Owner of any tax, fee, or governmental charge
required to be paid by the Authority with respect to such 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 shall not be transferred to any person other than an affiliate, or
other related entity, of the Owner unless the Authority has been provided with an
opinion of counsel or a certi.ficate of the transferor, in a form satisfactory to the
Authority, that such 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 Authority according to its terms, have been done, do exist, have
happened, and have been performed in due form, time and manner as so required.
IN WITNESS WHEREOF, the Board of Commissioners of the Bosemount Port
Authority has caused this Note to be executed with the manual signatures of its
Chair and Executine Director all as of the Date of Original Issue spec.i.fied above.
4
ROSEMOUNT PORT AUTHORITY
Executine Director Chair
REGISTftATION PROVISIONS
The ownership of the unpaid balance of the within Note is registered in the
bond register of the Authority, in the name of the person last listed below.
Date of Signature of
Re�istration Re�istered Owner Executive Director
Keystone Properties, L.L.C.
Federal Tax ID No.
Seetion 3. Terms, Execution and Delivery.
3.01. Denomination, Pavment. The Note shall be issued as a single
typewritten note numbered R-1.
SJH83092
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. � • -
The Note shall be issuable only in fully registered for�. Principal of and
interest on the Note shall be payable by check or draft issued by the Registrar
described herein. - �
3.02. Dates; Interest Pavment Dates. Principal of and interest on the Note
shall 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 such day
is a business day.
3.03. Re�istration. The Authority hereby appoints the Executine Director
to perform the funetions of registrar, transfer agent and paying agent (the
"Registrar"). The effect of registration and the rights and duties of the Authority
and the Registrar with respect thereto shall be as follows:
(a) R.e�ister. The Registrar shall keep at its office a bond register in which
the Registrar shall provide for the registration of ownership of the Note and the
registration of transfers and exchanges of the Note. [The Registrar shall also keep
and maintain the Principal Advance Ledger as defined in 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 shall authenticate and deliver, in the name of the
designated transferee or transferees, a new Note of a like aggregate prineipal �
amount and maturity, as requested by the transferor. Notwithstanding the
foregoing, the Note shall not be transferred to any person other than an affiliate,
or other related entity, of the Owner unless the Authority has been provided with
an opinion of counsel or a certificate of the transferor, in a form satisfactory to the
Authority, that such 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� such Payment Date.
(e) Cancellation. The Note surrendered upon any transfer shall be
promptly cancelled by the Registrar and thereafter disposed of as directed by the
Authority.
(d) Impro er or Unauthorized Transfer. When the Note is presented to the
Registrar for transfer, the Registrar may refuse to transfer the same until it is
satisfied that the endorsement on sueh Note or separate instrument of transfer is
legally authorized. The Registrar shall incur no liability for its refusal, in good
faith, to make transfers which it, in its judgment, deems improper or unauthorized.
(e) Persons Deemed Owners. The Authority 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 shall be overdue or not, for the
purpose of receiving payment of, or on account of, the principal of and interest on
such Note and for all other purposes, and all such payments so made to any such
� registered owner or upon the owner's order shall be valid and effectual to satisfy
and discharge the liability of the Authority upon such Note to the extent of the sum
or sums so paid.
8J883092
RS230-5 �'�s
. n .+ �
(f) Taxes, Fees and Char�es. 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 such transfer or exchange.
(g) Mutilated, Lost, Stolen or Destroved Note. In case any Note shall
become mutilated or be lost, stolen, or destroyed, the Registrar shall deliver a new
Note of like amount, maturity dates and tenor in exehange and substitution for and
upon cancellation of such mutilated Note or in lieu of and in substitution for such
Note lost, stolen, or destroyed, upon the payment of the reasonable expenses and
eharges 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 such 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 Authority and the
Registrar shall be named as obligees. The Note so surrendered to the R,egistrar
shall be ca.neelled by it and evidence of such caneellation shall be given to the
Authority. If the mutilated, lost, stolen, or destroyed Note has already matured or
been called for redemption in accordance with its terms, it shall not be necessary to
issue a new Note prior to payment.
3.04. Preparation and Delivery. The Note shall be prepared under the
direction of the Executive Director and shall be executed on behalf of the Authority
by the signatures of its President and Executive Director. In case any officer whose -
signature shall appear on the Note shall cease to be such officer before the delivery �
of the Note, such signature shall nevertheless be valid and sufficient for all
purposes, the same as if such officer had remained in office until delivery. When the
Note has been so executed, it shall be delivered by the Executive Director to the
Owner thereof upon payment of the Public Development Costs in accordance with the
Agreement.
Section 4. Securitv Provisions.
4.01. Pled e. The Authority hereby pledges to the payment of the principal
of and interest on the Note all Available Tax Increment as defined in the Note.
Available Tax Increment is pledged equally and ratably to the Note and any other
Note issued pursuant to the Agreement.
Available T� Increment shall be applied to payment of the principal of and interesf
on the Note in accordance with the terms of the form of Note set forth in Section 2
of this resolution.
4.02. Bond Fund. Until the date the Note is no longer outstanding and no
principal thereof or interest thereon (to the extent required to be paid pursuant to
this resolution) remains unpaid, the Authority shall 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 Authority irrevocably agrees to appropriate to the
Bond Fund in each year Available Tax Increment necessary to pay principal and
interest due on the Note in such year. Any amounts remaining in the Bond Fund
shall be transferred to the Authority's aecount for the TIF District upon the payment
of all principal and interest to be paid with respect to the Note.
8JB83092
R8230-5 �',�7
� , � ,
Section 5. County Auditor Begistration; Certification of Proceedin�s.
5.01. County Auditor Registration. The Secretary is hereby authorized and
directed to file a certified copy of this resolution with the County Auditor of Dakota
County, together with such other information as sueh County Auditor shall require,
and to obtain from said County Auditor a certificate that the Note have been entered
on his or her bond register.
5.A2. Certification of Proceedin�s. The officers of the Authority and the
County Auditor of Dakota County are hereby authorized and directed to prepare and
furnish to the Owner of the Note certified copies of all proceedings and records of
the Authority, and such 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 such certified copies, certificates, and affidavits,
including any heretofore furnished, shall be deemed representations of the
Authority as to the facts recited therein.
Adopted this day of , 19
[title] �
. . . .. . . . . 4
ATTEST:
[title�
8JH83092
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