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HomeMy WebLinkAboutContract 20452045 COLITMBIA HEIGHTS ECONOMIC IlE'~TELOPMENT AUTHORITY ~EECROP+T REI3E~JE]LOI'MENT SIT E PRELIMINARY DEVELOPMENT AGREEMEI'~TT THIS AGREEMENT, dated this 23rd day of October, 2007 by anal between the Columbia Heights Econonuc Development Authority, a body politic and corporate under the laws of Minnesota (the "Authority") and (the "Developer"): WITNESSETH: WI-IEREAS, the Authority desires to promote redevelopment of certain property within the City of Columbia Heights, which property is legally described in Exhibit A attached hereto (the "Property"); and WHEREAS, the Developer has requested the Authority to explore the use of certain public assistance, financial and otherwise, to assist with such activities, hereafter referred to as the "Redevelopment"; and WHEREAS, the Authority has determined that it is in the Authority's best interest that the Developer be designated sole developer of the Property during the term of this Agreement; aiid WHEREAS, the Authority and the Developer are willing and desirous to undertal{e the Redevelopment if (i) a satisfactory agreement can be reached regardil~g the Authority's commitment for public assistance necessary for the Redevelopment; (ii} satisfactory mortgage and equity fll~a~xing, or adequate cash resources far the Redevelopment can be secured by the Developer; and (iii) the economic feasibility a11d soundness of the Redeve}opment; and (iv) satisfactory resolution of zoniung, land use, site design, anal engineering issues, and other necessary preconditions have been determined to the satisfaction of the parties; and WHEREAS, the Authority is willing to evaluate the Redevelopment and warlc toward all necessary agreements with the Developer if the Developer agrees to reimburse the Authority for its costs relatilig to t11e Redevelopment even if the Redevelopment is abandoned or necessary agreements are not reached under the terms of this Agreement. NOW, THEREFORE, i11 consideration of the foregoing and of the mutual covenants and obligations set forth herein, the parties agree as follows: 1. Negotiations between the parties shall proceed in an attempt to formulate a definitive development contract ("Contract'') based on the following: (a) the Developer's proposal (when submitted} together with any changes or modifications required by the Authority; s.rg-26ossavl CL205-30 (b) such documentation regarding economic feasibility of the Project as the Authority may wish to undertake during the term of tlvs Agreement; and (c) other teens and conditions of this Agreement. 2. It is the intention of the parties that this Agreement: (a) documents the present understanding and commitments of the parties; and (b} will lead to negotiation and execution of a mutually satisfactory Contract for the Redevelopment prior to the termination date of this Agreement. The Contract (together with any other agreements entered into between the parties hereto contemporaneously therewith.} when executed, will supersede all obligations of the parties hereunder. 3. During the term of this Agreement, the Developer shall: (a) By December 15, 2007, submit a proposal to the Authority, which proposal must show the location, size, and nature of the proposed Redevelopment, including sample floor layouts, renderings, elevations, and other graphic or written explanations of the Redevelopment. The proposal shall be accompauued by a preliminary schedule for the starting anal completion of all phases of the Redevelopment. (b) Submit an over-all cost estimate for the design al~d construction of the Redevelopment. (c) Sub~r~it a fnzal time schedule for all phases of the Redevelopment. (d) Undertake and obtain such other preliminary economic feasibility studies, income and expense projections, and such other economic information as the Developer may desire to further corzfinn the economic feasibility and soundness of the Redevelopment. (e) Submit to the Authority the Developer's fnarlcing plan showing that the proposed Redevelopment is financially feasible. (f) Furnish satisfactory, financial data to the Authority evidencing the Developer's ability to undertake the Redevelopment. 4. During the teen of this Agreement, the Authority agrees to: (a) Cormnence the process necessary to undertake such public assistance as is necessary pursuant to the teens of the proposal. (b) Proceed to seek all necessary information with regard to the anticipated public costs associated with the Redevelopment. (c) Estimate the Authority's level and method of financial participation, if any, in the Redevelopment and develop a financial plan for the Authority's participation. S7B-260554v] CL205-30 5. It is expressly understood that execution and implementation of the Contract shall be subject to: (a) A determination by the Authority in its sole discretion that its undertakings are feasible based on {i) the projected tax increment revenues and any other revenues designated by the Authority; (ii) the purposes and. objectives of alny tax increment, development, or other plan created or proposed for the purpose of providing financial assistance for the Redevelopment; and (iii) the best interests of the Authority. (b) A determination by the Developer that the redevelopment is feasible and in the best interests of tine Developer. 6. Tlus Agreement is effective from tine date hereof through 120 days, 2008. After such date, neither party shall have any obligation hereunder except as expressly set forth to the contrary herein. 7. Tlie Developer shall be solely responsible for all costs incurred by t11e Developer. Tli addition, the Developer shall reimburse tine Authority for tine following costs: (a) Upon execution of this Agreement, the Developer has deposited with the Authority funnds in the amount of $ ~ ~ receipt of which the Authority hereby acl~nawledges. Tlne Authority may apply such deposit to pay any "Authority Costs,'' which means: reasonable and necessary out-of pocket-costs incurred by tlne Authority from and after date of executed agreement, in each case based on act-aal time spent in connection with rendering assistance and advice to the Authority as evidenced by itemized bills and invoices for (i) tlne Authority's financial advisor in connection with tine Authority's financial participation in redevelopment of the Property, {ii} tine Authority's legal counsel it com7ection with negotiation and drafting of this Agreement and any related agreements or docuiments, and any legal services related to the Authority's or City's participation in redevelopment of the Property; (iii) any appraiser retained by the Authority in connection with conveyance of any portion of the Property by the Authority to the Developer or i1 connection with deternnination of the level of public assistance; and (iv) consultants retained by the Authority for plaavning, envirolunental review, and traffic engineering for development of the Property. At Developer's request, but no more often than monthly, tlne Authority will provide Developer with a written report on current and anticipated expenditures for Authority Casts, ilcluding invoices or other comparable evidence. (b) If at any time durilg the term of this Agreement the Authority determines that the amounts deposited by Developer are insufficient to pay Authority Costs, the Authority may notify the Developer i1 writing as to any additional amount required to be deposited. The Developer must deposit such additional funds within 20 days after receipt of the Authority's notice. (c) Upon termination of this Agreement in accordance with its teams, the Authority will return to the Developer the balance of any fnznds deposited under this section that are on hand as of the date of receipt of the notice of termination, and less airy 5JB-260554v1 CL205-30 Authority Casts incurred through the date of receipt of the notice of termination. For the purposes of this paragraph, Authority Costs are considered to be incurred if they have been paid, relate to services performed, ar are payable under a contract entered into, en or before the date of receipt of the notice of termination. This Section 7 shall survive termination of this Agreement and shall be binding on the Developer regardless of the enforceability of any other provision of this Agreement. 8. This Agreement maybe terminated upon ~ days written notice by the Authority to the Developer if: (a) an essential precondition to the execution of a contract carmnot be met; ar (b} if, l1n the sole discretion of the Authority, an impasse has been reached in the negotiation or implementation of any material term ar condition of this Agreement or the Contract; or (c) The Authority determines that its Administrative Costs will exceed the annourlt irnitially deposited for such purpose under Section 7(b), and the Developer does not deliver additional security to the Authority pursuant to Section 7(b) of this Agreement. If the Authority terminates the Agreement under this Section 8, the Developer shall remain liable to the Authority under Section 7(b) of this Agreement far Adrmirustrative Costs incurred by the Authority through the effective date of termination. 9. The Developer is designated as sole developer of the Property during the term of this Agreement. The Authority makes no representations or warraanties as to control, access or ownership of any portion of the Property, but agrees that during the terns of this Agreement the Authority will not enter into agreennents with any other party to facilitate redevelopment of the Property. 10. Irn tlne event that the Developer, its heirs, successors or assignns, fail to comply with any of the provisions of this Agreement, the Authority may proceed to enforce this Agreement by appropriate legal or equitable proceedings, or other sinnilar proceedings, and the Developer, its heirs, successors ar assigns, agree to pay all costs of such enforcement, including reasonable attorneys' fees. 11. If any portion of this Agreement is held invalid by a court of competelnt jurisdiction, such decision shall not affect the validity of any remaining portion of the Agreement. 12. Irn the event any covenant contained in this Agreement should be breached by one party arnd subsequently waived by another party, such waiver shall be limited to the particular breach so waived and shall rnot be deemed to waive any other concurrent, previous or subsequent breach. Tlnis Agreement may not be amended nor any of its terns modified except by a writing authorized and executed by all parties hereto. S7B-260554v1 CL205-30 13. Notice or demand or other communication between or among the parties shall be sufficiently given if sent by mail, postage prepaid, return receipt requested or delivered personally: (a} As to the Authority: Columbia Heights Economic Development Authority 590 40th Avenue NE Columbia Heights, MN 55421 Attn: Randy Schumacher (b) As to the Developer: ~ ~.~.. ~ ,~ ~- 1 552 Lolnianki Lane Columbia Heights, MN 55421 14. This Agreement may be executed simultaneously in any number of counterparts, all of which shall constitute one and the salve instrument. 15. This Agreement shall be goverled by and construed in accordance with the laws of the state of Minnesota. Aliy disputes, controversies, or claims arising out of this Agreement shall be heard u1 the state or federal courts of Minnesota, and all parties to this Agreement waive any objection to the jurisdiction of these courts, whether based on conve~~ience or otherwise. 16. The Developer hereby agrees to protect, defend and hold the Authority and its officers, elected and appointed officials, employees, admilustrators, colnlnissioners, agents, and representatives harmless from arld indemnified against any and all loss, cost, fines, charges, damage and expenses, including, without limitation, reasonable attorneys fees, consultant and expert witness fees, and travel associated therewith, due to claims or demands of any kind whatsoever arising out of (i) the development, marketing, sale or leasing of all or any part of the Property, including, without limitation, any claims for any lien imposed by law for services, labor or materials furnished to or for the benefit of the Property, or {ii} any claim by the state of Minnesota or the Mimlesota Pollution Control Agency or al~y other person pertaining to the violation of any permits, orders, decrees or demands made by said persons or with regard to the presence of any pollutant, contaminant or hazardous waste on the Property; and (iii) or by reason of the execution of this Agreement or the performance of this Agreement. The Developer, and the Developer's successors or assigns, agree to protect, defend and save the Authority, and its officers, agents, and employees, harmless from all such claims, demands, damages, and causes of action and the costs, disbursements, and expenses of defending the same, including but vat Iinuted to, attorleys fees, consulting engineering services, and other technical, achninistrative or professional assistance. Tlus indemnity shall be continuing and shall survive the performance, termination or cancellation of this Agreement. Nothing in this Agreement shall be construed as a limitation of or waiver by the Authority of any iinlnuulities, defenses, or other limitations on liability to which the Authority is entitled by law, including but not linuted to the maxirnwn monetary limits on liability established by Minnesota Statutes, Chapter 466. s7B-2605~4v1 CL205-30 17. The Developer, for itself, its attorneys, agents, employees, forner employees, insurers, heirs, admirli strators, representatives, successors, and assigns, hereby releases and forever discharges the Authority, and its attorleys, agents, representatives, employees, former employees, insurers, heirs, executors and assigns of and from any and all past, present or future claims, demands, obligations, actions or causes of action, at law or im equity, whether al-ising by statute, conmmon law or otherwise, anal for all claims for damages, of whatever kind or nature, and for all claims for attorneys' fees, and costs and expenses, including but not linvted to all claims of any bind arising out of the negotiation, execution, or performance of this Agreement between the parties. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] S7B-260554v1 CL205-30 IN WITNESS WH]~RE(~F, the Authority has caused this Agreement to be duly executed ili its name alzd behalf and its seal to be duly affixed hereto and the Developer has caused this Agreement to be duly executed as of the day and year first above written. [I}EV~LOPER] By Its !" .~/ ~,1~/ Y Its ~/~ ' r~~~~~ SJB-260554v1 CL205-30 COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY B r_ Its President- Gar ~. Peterson -- By ~',~-yam- ~.., ~ , Its Execlztive Director- alter R. Fehst Date: '~` ~--,' ~ . ,-,~ ~ sJi3-260554v1 CL205-30