HomeMy WebLinkAboutEDA AGN 02-09-09 Special Meeting
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY
SPECIAL MEETING
MONDAY, FEBRUARY 9,2009
6:00 p.m., City Hall, Conference Room 1
1. Call to Order/Roll Call
2. Pledge of Allegiance
BUSINESS ITEMS
3. Adopt Resolution 2009-07, Second Amendment to
Amended and Restated Contract for Private
Redevelopment-Huset Park Development
Motion: Move to waive the reading of Resolution 2009-07, there
being an ample amount of copies available to the public.
Motion: Move to Adopt Resolution 2009-07, a Resolution
Approving a Second Amendment to Amended and Restated
Contract for Private Redevelopment between the Columbia
Heights Economic Development Authority, the City of Columbia
Heights and Huset Park Development Corporation; and
furthermore, to authorize the President and Executive Director
to enter into an agreement for the same.
4. Adopt Resolution 2009-08, Contract for Private
Redevelopment-4707 Central Avenue
Motion: Move to waive the reading of Resolution 2009-08, there
being an ample amount of copies available to the public.
Motion: Move to Adopt Resolution 2009-08, a Resolution
Approving Contract for Private Redevelopment and Resolution
Awarding the sale of, and providing the form, terms, covenants
and directions for the issuance of its Taxable Tax Increment
Revenue Note in the maximum principal amount of $300,000;
and furthermore, to authorize the President and Executive
Director to enter into an agreement for the same.
5. Adjournment
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY (EDA)
Special Meeting of: February 9, 2009
AGENDA SECTION: Business Items ORIGINATING DEPT. EXECUTIVE
NO: 3 Community Development DIRECTOR
APPROVAL
ITEM: Adopt Resolution 2009-07, Second BY: Sheila Cartney BY:
Amendment to Amended and Restated DATE: February 3,2009
Contract for Private Redevelopment-
Huset Park Development
BACKGROUND:
On October 25, 2004 the City, EDA and Huset Park Development Corporation entered into contract for
private redevelopment of the "Industrial Park." On August 1, 2007 the same parties agreed and entered
into an Amended and Restated Contract for Private Redevelopment.
The "Minimum Improvements" in the contract is broken out into phases and includes three different
housing types and one commercial space. According to the contract there are to be a total of 277
townhouse units, 50 senior units, and 183 condominium or cooperative housing units and 11,650
square feet of commercial space.
Due to the down turn in the housing market and economic conditions, Schafer Richardson has
requested completion date amendments to the development contract. The following table represents
the amendments requested per phase. Section 4.3(c) states "if the Redeveloper is making substantial
progress with respect to the redevelopment project, and is unable to meet one or more of the above-
referenced deadlines, the Authority and Redeveloper shall negotiate in good faith for a reasonable
period to extend the time in which necessary action(s) must be taken or occur, the lapse of which time
would otherwise constitute a default of this Agreement."
Phase
IB Housin
IIA Housin
liB Housin
IliA Housing
and
Commercial
IIIB Housing
IIIC Housing
Commence by 12/31/2010 complete by
12/31/1012
Commence by 12/31/2012 complete by
12/31/2014
As requested at the January 27, 2009 EDA meeting, Schafer Richardson has provided a development
status report.
RECOMMENDATION: Staff recommends the EDA amend the development contract as requested to
change commencement and completion dates for the Huset Park/Parkview Redevelopment.
RECOMMENDED MOTION:
Motion: Move to waive the reading of Resolution 2009-07, there being ample amount of copies available
to the public.
Motion: Move to adopt Resolution 2009-07, a Resolution approving the Second Amendment to
Amended and Restated Contract for Private Redevelopment By and Between Columbia Heights
Economic Development Authority and Huset Park Development Corporation, approved on August 1,
2007; and furthermore, to authorize the President and Executive Director to enter into an agreement for
the same.
Attachments: Resolution, Amendment, Project up date and Request from Shafer Richardson, Phase
MaD
EDA ACTION:
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY
RESOLUTION NO. 2009-07
RESOLUTION APPROVING A SECOND AMENDMENT TO AMENDED AND
RESTATED CONTRACT FOR PRIVATE REDEVELOPMENT BETWEEN THE
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY, THE
CITY OF COLUMBIA HEIGHTS AND HUSET PARK DEVELOPMENT
CORPORATION
BE IT RESOLVED By the Board of Commissioners ("Board") of the Columbia Heights
Economic Development Authority ("Authority") as follows:
Section 1.
Recitals.
1.01. The Authority has determined a need to exercise the powers of a housing and
redevelopment authority, pursuant to Minnesota StaMes, Sections. 469.090 to 469.108 ("EDA
Act"), and is currently administering the Downtown CBD Redevelopment Project ("Redevelopment
Project") pursuant to Minnesota Statutes, Sections 469.001 to 469.047 ("HRA Act").
1.02. The Authority, the City of Columbia Heights ("City") and Huset Park Development
Corporation (the "Redeveloper") entered into a into a Contract for Private Redevelopment dated as
of October 25, 2004, as amended by a First Amendment thereto dated June 16, 2008 (the
"Contract"), setting forth the terms and conditions of redevelopment of certain property within the
Redevelopment Project, generally located east of University A venue and south and west of Huset
Park.
1.03. The parties have determined a need to modify the Contract in certain respects, and
have caused to be prepared a Second Amendment to Amended and Restated Contract for Private
Redevelopment (the "Amended Contract").
1.04. The Board has reviewed the Amended Contract and finds that the execution thereof
and performance of the Authority's obligations thereundcr are in the best interest of the City and its
residents.
Section 2.
Authoritv Approval: Further Proceedings.
2.01. The Amended Contract as presented to the Board is hereby in all respects approved,
subject to modifications that do not alter the substance of the transaction and that arc approved by
the President and Executive Director, providcd that execution of the documents by such officials
shall be conclusive evidence of approval.
2.02. The President and Executive Director are hereby authorized to execute on behalf of
the Authority the Amended Contract and any documents referenced therein requiring execution by
the Authority, and to carry out, on behalf of the Authority its obligations thereunder.
Approved by the Board of Commissioners ofthe Columbia Heights Economic Development
Authority this 9th day of February 2009.
Motion By:
Second By:
RollCall:
President- Gary L. Peterson
ATTEST:
Executive Director- Walter R. Fehst
2
SECOND AMENDMENT TO
AMENDED AND REST A TED CONTRACT FOR PRIVATE REDEVELOPMENT
THIS AGREEMENT, made on or as of the _ day of , 2009, by and between
COLUMBIA HEIGl-ITS ECONOMIC DEVELOPMENT AUTHORITY, COLUMBIA HEIGHTS,
MINNESOTA, a public body corporate and politic (the "Authority"), established pursuant to
Minnesota Statutes, Sections 469.090 to 469.1081 (hereinafter referred to as the "Act"), the CITY
OF COLUMBIA HEIGHTS, a Minnesota municipal corporation (the "City") and HUSET PARK
DEVELOPMENT CORPORATION, a Minnesota corporation (the "Redeveloper").
WITNESSETH:
WHEREAS, the parties hereto entered into that certain Amended and Restated Contract for
Private Redevelopment dated as of August 1, 2007, as amended by a First Amendment thereto
dated as of June 16, 2008 (the "Contract"), providing for redevelopment of certain property in the
City described as the Redevelopment Property; and
WHEREAS, the parties have determined a need to amend the Contract in certain respects,
in light of changing market conditions.
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:
1.
revision):
Section 4.3 of the Contract is modified as follows (italicized language shows
Section 4.3. Completion of Construction. (a) Subject to Unavoidable Delays and the
provisions of paragraphs (b), (c) and (d) below, the Minimum Improvements must be constructed in
accordance with the following schedule:
Phase I:
As of the date of the Amended and Restated Contract, the internal site
improvements and at least 80 percent of the required number of units for
Phase IA are complete. Redeveloper must substantially complete all internal
site improvements for Phase IE, including roads, and at least 80 percent of
required number of housing units for Phase IE, by April 30, 2011.
Phase II:
As of the date of the Amended and Restated Contract, Phase IIA is under
construction. Redeveloper must substantially complete all internal site
improvements, including roads, together with at least 80 percent of required
number of housing units for Phase IIA, by June 30. 2010. Redeveloper must
substantially complete all internal site improvements, including roads,
together with at least 80 percent of required number of housing units for
Phase lIB, by July 31,2012.
Phase III:
Redeveloper must construct and complete all internal site improvements,
including roads, and at least 80 percent of the required number of housing
units, according to the following schedule:
Phase IlIA: Commence by April 30, 2010; complete by April 30, 2012.
Phase IIIB: Commence by December 31, 2012; complete by December
31,2014.
Phase IIIC: Commence by December 31, 2014; complete by December
31,2016.
2. The Contract remains in full force and effect and is not modified except as expressly
provided herein.
2
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 above written.
COLUMBIA HEIGHTS ECONOMIC
DEVELOPMENT AUTHORITY
By
Its President - Gary L. Peterson
By
Its Executive Director - Walter R. Fehst
STATE OF MINNESOTA )
) SS.
COUNTY OF ANOKA )
The foregoing instrument was acknowledged before me this _ day of
2009, by and Walter R. Fehst, the President and Executive Director of thc
Columbia Heights Economic Development Authority, a public body politic and corporate, on
behalf of the Authority.
Notary Public
3
CITY OF COLUMBIA HEIGHTS
By
Its Mayor - Gary 1. Peterson
By
Its City Manager - Walter R. Fehst
STATEOFMINNESOTA )
) SS.
COUNTY OF ANOKA )
The foregoing instrument was acknowledged before me this _ day of
2009, by Gary Peterson and Walter R. Fehst, the Mayor and City Manager of the City of Columbia
Heights, a Minnesota municipal corporation, on behalf of the City.
Notary Public
4
HUSET PARK DEVELOPMENT CORPORATION
By
President and Chief Executive Officer
STATE OF MINNESOTA )
) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this _ day of
2009 by Bradley J. Schafer, the President and Chief Executive Officer of Huset Park Development
Corporation, a Minnesota corporation, on behalf of the corporation.
Notary Public
5
CONSENT BY ASSIGNEE
The undersigned, as assignee of certain rights of Redeveloper under the attached Amended and
Restated Contract for Private Redevelopment (the "Amended Contract"), hereby consent to all
terms of the Amended Contract; provided that nothing in this consent will alter or affect the rights
of undersigned under the Agreement of Purchase and Sale (Finished Lots) between The Ryland
Group, Inc. and Redeveloper dated April 18, 2005, as amended.
THE RYLAND GROUP, INC.
By
Its
STATE OF MINNESOTA )
) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this _ day of
2009 by , the and of the Ryland Group, Inc., a Maryland
corporation, on behalf of the corporation.
Notary Public
6
CONSENT BY ASSIGNEE
The undersigned, as assignee of certain rights of Redeveloper under the attached Amended and
Restated Contract for Private Redevelopment (the "Amended Contract"), hereby consent to all
terms of the Amended Contract.
P ARKVIEW HOMES, LLC
By
Its
STATE OF MINNESOTA )
) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this _ day of
2009 by , the of Parkview Homes, LLC, a Minnesota
limited liability company, on behalf of the company.
Notary Public
7
Page 1 (>'
Sheila Cartney - Update to EDA on Hnset Park
From:
To:
Date:
Subject:
CC:
Attachmcnts:
"Maureen Michalski" <mmichalski@sr-re.com>
"Sheila Cartney" <Sheila.Cartney@ci.columbia-heights.mn.us>
1/30/2009 9:24 AM
Update to EDA on Huset Park
"Brad Schafer" <bschafer@sr-re.com>, "Sonstegard, Mark" <msonsteg@ryland.com>
Status update to EDA l-28-09.doc
Sheila,
Please find attached the update you requested for the EDA packet on Huset Park. As I mentioned, the
extension of dates we are requesting are based mainly on our anticipated sale oElots to Ryland Homes and their
subsequent development on the lots. We would all be very pleased if the target dates on this schedule shift to a
sooner timeframe- the sooner we are able to sell lots and townhomes, the better it is for all of us. However, we
want to be clear in communicating with the city the realities of the market, and our requested extension dates are
the best we can predict at this time.
I also would like to reiterate that if the city or EDA has partners, or projects in mind, that would allow for
development of the Phase III portion of the site in a sooner timeframe, we are very willing to consider those
opportunities.
I plan on attending the EDA meeting on the 9th_can you please clarify what time I should plan on being there?
Please let me know if I can answer any additional questions or provide further information. Also, if I need to
come prepared with further information on the 9th please let me know. Thank you,
Maureen Michalski
Project lVLtnager
Schafer Richardson, Inc.
Direct- 612-359-5842
Mobile- 612-599-9945
mmichalski@sr-re.com
file:lIC:\Documents and Settings\CCH-User\Local Settings\Temp\XPgrpwise\4982C733cchgw... 1/3012009
Huset Park Development- Update of Status 1-30-09
Phase IA-
To date all site improvements have been made and all 123 townhome units in Phase IA
have been completed. All Ryland I-Iomes (Ryland) units have been sold in this phase
except the three model units, and five units developed by I-Iuset Park Development
Corporation (HPDC) remain to be sold. In 2008 Ryland sold 5 units and HPDC sold I
unit in Phase 1.
Phase IB-
This site, located at the east side of Phase IA along Jefferson Street, is planned to be
senior housing. Half of the site will be developed by the National Handicapped Housing
Institute (NHHI) and half ofthe site will be developed by Huset Park Development
Corporation. Because these buildings will share a party wall it is planned that
construction of the two pOltions will be very close to concurrent. In June of 2008 the
National Handicapped Housing Institute placed an application to the U.S. Depmtment of
Housing and Urban Development (HUD) for funds to construct their portion of the
development. NHHI received notice in fall of 2008 that the application had been
"technically rejected" because of one existing monitoring well on the site. Once
technically rejected an application is removed from consideration for funding in that
round.
BUD will not meet with NHHI and HPDC until after announcement of awards from the
2008 funding round, which is why we are currently in a holding pattern. Once they
announce the 2008 awards we will immediately schedule a meeting with HUD to discuss
the technical rejection and a 2009 funding application. In discussions with ProSource,
the environmental consulting firm on this project, they anticipate that the monitoring well
that caused this technical rejection will be "abandoned" in spring of2009 after Minnesota
Pollution Control Agency (MPCA) has granted approval.
It is currently anticipated that the 2009 HUD SuperNOF A will have applications due in
the early part of summer, for which NHHI intends to apply unless there is a further issue
with the "technical rejection." If successful in the 2009 round, NHHI would be notified of
funding in early 20 I 0 and we would anticipate construction of the two senior buildings at
this site beginning in late summer/early fall of2010, and opening for occupancy
approximately one year later.
Phase IIA-
This phase is currently under construction. In this phase there are 39 townhomes built,
with another 8 currently under construction, for a total of 47 townhomes. Ryland has
sold 44 homes to date in Phase IIA, of which 11 sales were in 2008. Ryland currently has
site control of 16 additional townhome lots (two, eight-lot building pads) in this phase.
Ryland will not begin construction on either of these buildings until 50% of the units
within a building are pre-sold. To date, there is only one purchase agreement associated
with these buildings. Ryland has been actively selling these two, eight lot building pads
since they acquired these parcels from I-Iuset Park Development Corporation on October
31,2008.
The remaining schedule for Ryland purchasing lots from Huset Park Development
Corporation for this phase is as follows:
18 lots by April 30, 2009
18 Lots by December 31, 2009
18 Lots by September 30, 2010 (4 of which are in Phase IIA)
This is per our current Purchase and Sale Agreement with Ryland I-Iomes. This
agreement requires Ryland Homes to purchase lots from Huset Park Development
Corporation NO LATER than these dates. However, ifthere is a demand for townhome
lmits at this location Ryland Homes would likely purchase these lots from Huset Park
Development Corporation sooner and begin construction on the townhomes.
Phase IIB-
Site improvements, including streets and utilities, have not yet been constructed for this
phase, and this portion of the site has not yet been re-platted.
Per our current Purchase and Sale Agreement with Ryland Homes the schedule for
Ryland's purchase oflots from HPDC for this phase is:
18 Lots by September 30, 2010 (14 of which are in Phase IIB)
18 Lots by March 31, 2011
12 Lots by September 30,2011
It is currently anticipated that Huset Park Development Corporation will undertake the
site improvements necessary for this phase in summer of2010.
Phase III-
As plamled, Phase III is scheduled to be a mixed use development. Site improvements
and re-platting have not yet occurred for this phase of the development. Schafer
Richardson is actively marketing this land for potential commercial/mixed use
opportunities through: Minnesota Commercial Association of Realtors (MNCAR), CCIM
Loopnet, the Schafer Richardson website, and email blasts to brokers on a regular basis.
-J
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COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY (EDA)
Special Meeting of: February 9, 2009
AGENDA SECTION: Business Items ORIGINATING EXECUTIVE
NO: 4 DEPARTMENT: EDA DIRECTOR
APPROVAL
ITEM: Adopt Resolution 2009-08, BY: Scott Clark BY:
Contract for Private Redevelopment DATE: February 4,2009
BACKGROUND: At the January 27, 2009 EDA meeting staff reviewed proposed changes to
the Development Agreement, originally approved on September, 2008 with Grand Central
Commons LLC, for construction of a retail and office facility at 4ih and Central. For ease of
review, staff has attached a black lined copy of the changes. The major amendments are as
follows:
1) Minimum improvements have been redefined as a 35,000 sq. ft. commercial/office
complex with parking (surface and ramp) of 180 stalls. The original project was
52,000 sq. ft. with 210 stalls collectively.
2) A reduction of tax increment assistance from $440,000 to $300,000 (Section 3.4)
3) Additional language clarifying the existing five-year rule. What this states is that if
the developer does not incur the qualified cost expenditures by July 23, 2009 no
increment will be available. (Section 3.4c)
4) Additional language stating the intention of the EDA is to attempt expanding the five
year rule to ten years (Section 3.4d)
5) Minimum assessment amount (changed to 4,375,000 in section 6.3a) will be fully
assessed to the property on January 1, 2010 regardless of the level of construction
completion at that time (Section 3.4e)
6) Acknowledgment language that if the Metropolitan Council grant is not fully received
for whatever reasons, the EDA has no obligation to make up the differential. (3.5e)
7) Elimination of phasing language as the project will be built as one project (6.3b)
8) June 1, 2009 construction start date (Section 4.3)
At the January meeting there was additional discussions about potentially demanding
additional surety to ensure that once the building has started construction, it will be
completed. After discussions with the EDA Attorney, staff is recommending no additional
surety since the provisions of the Agreement should provide reasonable assurance that
once started, the project will be completed (these existing Agreement provisions include the
letter of credit needed for the sewer expansion and evidence of mortgage financing prior to
issuance of a building permit-Section 7.1).
RECOMMENDATION: Staff recommends Adopting Resolution 2009-08, approving the
Amended Contract for Redevelopment as amended.
RECOMMENDED MOTION:
Motion: Move to Adopt Resolution 2009-08, there being an ample amount of copies available
to the public.
Motion: Move to Adopt Resolution 2009-08, a Resolution Approving Contract for Private
Redevelopment and Resolution Awarding the sale of, and providing the form, terms,
covenants and directions for the issuance of its Taxable Tax Increment Revenue Note in the
maximum principal amount of $300,000; and furthermore, to authorize the President and
Executive Director to enter into an agreement for the same.
Attachments' Resolution 2009-08, Amended Contract
EDA ACTION:
AUTHORIZING RESOLUTION
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY
RESOLUTION NO. 2009-08
RESOLUTION APPROVING CONTRACT FOR PRIVATE REDEVELOPMENT AND
RESOLUTION AWARDING THE SALE OF, AND PROVIDING THE FORM, TERMS,
COVENANTS AND DIRECTIONS FOR THE ISSUANCE OF ITS
TAXABLE TAX INCREMENT REVENUE NOTE
IN THE MAXIMUM PRINCIPAL AMOUNT OF $300,000
BE IT RESOLVED BY the Board of Commissioners ("Board") of the Columbia Heights
Economic Development Authority, Columbia Heights, Mitmesota (the "Authority") as follows:
Section 1. Authorization.
1.01. Authorization. The Authority and the City of Columbia Heights have heretofore
approved the establishment of the Kmart/Ccntral Avenue Tax Increment Financing District (the
"TIF District") the Downtown CBD Redevelopment Project (the "Project"), and have adopted a
tax increment financing plan for the purpose of financing certain improvements within the
Project.
Pursuant to Mil1llesota 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
District 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 Taxable Tax Increment Revenue
Note in the maximum principal amount of $300,000 (the "Note") for the purpose of financing
certain public redevelopment costs of the Project.
1.02. Approval of Agreement. The Contract for Private Redevelopment (the
"Agreement") between the Authority Grand Central Commons, LLC ("Grand Central
Properties") is approved in substantially the form on tile in City Hall, subject to modifications
that do not alter the substance ofthe transaction that are approved by the President and Executive
Director, provided that execution of the amendment by such officials is conclusive evidence of
and their approval.
1.03. 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 delivered, in
accordance with the Agreement. The Note shall be issued to Grand Central Commons LLC
("Owner"). The Note shall be dated as of the date of delivery, shall mature no later than
February 1,2021 and shall bear interest at the rate of 7.0% per annum fi'om the date of original
issue of the Note. The Note is issued in consideration of payment by Owner of certain Public
Redevelopment Costs in at least the principal amount of the Note, in accordance with the
Agreement.
Section 2. Form of Note. The Note shall be in substantially the following form, with the
blanks to be properly tilled in and the principal amount and payment schedule adjusted as of the
date of issue:
UNITED STATE OF AMERICA
STATE OF MINNESOTA
COUNTY OF ANOKA
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY
No.R-l
$
TAXABLE TAX INCREMENT REVENUE NOTE
SERIES 20
Rate
Date
of Original Issue
7.0%
,20_
The Columbia Heights Economic Development Authority ("Authority") for value
received, certifies that it is indebted and hereby promises to pay to Grand Central Commons LLC
or registered assigns (the "Owner"), the principal sum of $ or so much thereof as has
been from time to time advanced (the "Principal Amount"), as provided in the Agreement
defined hereafter, together with interest on the unpaid balance thereof accrued from the date of
original issue hereof at the rate of _ percent per annum (the "Stated Rate"). This Note is
given in accordance with that certain Contract for Private Redevelopment between the Issuer and
the Owner dated as of , 2009 (the "Agreement") and the authorizing resolution
(the "Resolution") duly adopted by the Authority on , 2009. Capitalized terms
used and not otherwise defined herein have the meaning provided for such terms in the
Agreement unless the context clearly requires otherwise.
1. Pavments. Principal and interest ("Payments") shall be paid on August 1, 2011
and each February 1 and August 1 thereafter to and including February 1, 2021 ("Payment
Dates") in the amounts and from the sources set forth in Section 3 herein. Payments shall be
applied first to accrued interest, and then to unpaid principal.
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 States of America which, on the Payment Date, is
legal tender for the payment of public and private debts.
2. Interest. Interest accruing from the date of original issue through and including
February 1,2011 (and not otherwise paid from Available Tax Increment) will be compounded
semiannually on February 1 and August 1 of each year and added to principal. 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. All payments on this Note are payable on each
Payment Date solely from and in the amount ofthe "Available Tax Increment," which means, on
each Payment Date, 90 percent of the Tax Increment attributable to the Commercial Property as
defined in the Agreement that is paid to the Authority by Anoka County in the six months
preceding the Payment Date.
The Authority shall have no obligation to pay principal of and interest on this Note on
each Payment Date fl'om 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 such pledged revenues. The Authority shall have no obligation to pay
unpaid balance of principal or accrued interest that may remain after the final Payment on
February 1,2021.
4. Default. Upon an Event of Default by the Redeveloper under the Agreement, the
Authority may exercise the remedies with respect to this Note described in Section 9.2 of the
Agreement, the terms of which are incorporated herein by reference.
5. Optional Prepavment. (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) Upon receipt by Redeveloper of the Authority's written statement of the Excess
Amount as defined in Section 3.4(e) of the Agreement, one-half of such Excess Amount will be
deemed to constitute, and will be applied to, prepayment of the principal amount of this Note.
Such deemed prepayment is effective as of the Calculation Date as defined in Section 3.4(e) of
the Agreement, and will be recorded by the Registrar in its records for the Note. Upon request of
the Owner, the Authority will deliver to the Owner a statement of the outstanding principal
balance of the Note after application ofthe deemed prepayment under this paragraph.
6. Nature of Obligation. This Note is one of an issue in the total principal amount of
$ 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 the Resolution, and pursuant to and in full conformity
with the Constitution and laws of the State of Minnesota, including Minnesota Statutes, Sections
469.174 to 469.179. This Note is a limited obligation of the Authority which is payable solely
from the revenues 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 Mhmesota 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 from and to the extent of the revenues
pledged hercto, and neither thc full faith and credit nor the taxing power of the State of
Mitmesota or any political subdivision thercof is pledged to the payment of the principal of or
interest on this Note or other costs incident hereto.
7. 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 Authority kept for that purpose at the
principal office of the City Chief Financial Officer, 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 Authority, duly executed by the Owner. Upon such
transfer 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 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.
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 Columbia Heights
Economic Development Authority have caused this Note to be executed with the manual
signatures of its President and Executive Director, all as of the Date of Original Issue specified
above.
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY
Executive Director-Walter R. Fehst
President-Gary L. Peterson
REGISTRATION PROVISIONS
The ownership of the unpaid balance of the within Note is registered in the bond register
of the City Chief Financial Officer, in the name of the person last listed below.
Date of
Registration
Registered Owner
Signature of
City Chief Financial Officer
Grand Central Commons LLC
Federal Tax I.D. No.
Section 3.
Terms. Execution and Delivery.
3.01. Denomination. Payment. The Note shall be issued as a single typewritten note
numberedR-l.
The Note shall be issuable only in fully registered form. Principal of and interest on the
Note shall be payable by check or draft issued by the Registrar described herein.
3.02. Dates: Interest Payment 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. Registration. The Authority hereby appoints the City Chief Financial Officer to
perform the functions 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) Register. 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 cxchanges of the Note.
(b) Transfer of Note. Upon surrender for transfer of the Note duly endorsed by the
registered owner thereof or accompanied by a written instrument of transfer, in form reasonably
satisfactory to the Registrar, duly executed by the registered owner thereof or by an attorney duly
authorized by the registered owner in writing, the Registrar shall authenticate and deliver, in the
name of the designated transferee or transferees, a new Note of a like aggregate principal amount
and maturity, as requested by the transferor. Notwithstanding the foregoing, the Note shall not
bc transferred to any pcrson 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 ofthe month preceding each Payment Date and until such Payment Date.
(c) Cancellation. The Note surrendered upon any transfer shall be promptly
cancelled by the Registrar and thereafter disposed of as directed by the Authority.
(d) Improper 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 such 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.
(1) Taxes, Fees and Charges. For every transfer or exchange of the Note, the
Registrar may impose a charge upon the owner thereof sufficient to reimburse the Registrar for
any tax, fee, or other governmental charge required to be paid with respect to such transfer or
exchange.
(g) Mutilated, Lost, Stolen or Destroyed 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 exchange 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 charges of the Registrar in connection therewith; and, in the case
the Note lost, stolen, or destroyed, upon filing with the Registrar of evidence satisfactory to it
that 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 Registrar shall be cancelled by it and evidence of such cancellation 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 Deliverv. 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 in accordance with the Agreement.
Section 4. Security Provisions.
4.01. Pledge. The Authority hereby pledges to the payment of the principal of and
interest on the Note all Available Tax Increment under the terms and as defined in the Note.
Available Tax Increment shall be applied to payment of the principal of and interest 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 all Available Tax Increment.
Any Available Tax Increment remaining in the Bond Fund shall be transferred to the Authority's
account for the TIF District upon termination of the Note in accordance with its terms.
4.03. Additional Bonds. If the Authority issues any bonds or notes secured by
Available Tax Increment, such additional bonds or notes are subordinate to the Note in all
respects.
Section 5.
Certification of Proceedings.
5.01. Certification of Proceedings. The officers of the Authority 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.
Section 6.
Agreement.
Effective Date. This resolution shall be effective upon execution of the
Adopted this day of
,2009.
President-Gary L. Peterson
Executive Director-Walter R. Fehst
NffithTenth Draft October 28, 2008Februarv 3. 2009
CONTRACT
FOR
PRIVATE REDEVELOPMENT
By and Between
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY
COLUMBIA HEIGHTS, MINNESOTA
and
GRAND CENTRAL COMMONS LLC
Dated as of:
, ;w()82009
This document was drafted by:
KENNEDY & GRA YEN, Chartered
470 US Bank Plaza
Minneapolis, Minnesota 55402
Telephone: (612) 337-9300
336985vl0 SJB CL205-42
PREAMBLE
Section 1.1.
Section 2.1.
Section 2.2.
Section 3.1.
Section 3.2.
Section 3.3.
Section 3.4.
Section 3.5.
Section 3.6.
Section 3.7.
Section 3.8.
Section 4.1.
Section 4.2.
Section 4.3.
Section 4.4.
Section 5.1.
Section 5.2.
Section 6.1.
Section 6.2.
336985v1O SJB CL205-42
TABLE OF CONTENTS
.........................................................................................................................1
ARTICLE I
Definitions
Definitions....................................................................................................... 3
ARTICLE II
Representations and Warranties
Representations by the Authority........ .................... ............. ...... .......... ...........7
Representations and Warranties by the Redeveloper......................................7
ARTICLE III
Property Acquisition, Conveyance and Financing
Status of the Property.................... .... ....... ... .... ... .... ... ................... .............. ... ..9
Environmental Conditions.... ........................ .... ..................................... ....... ..9
Public Redevelopment Costs ...... ........ ....... ................. ............... ... .............. ....9
Issuance of Commercial Note. ................................... .... ..... ... .......... ... .... ........9
Met Council Grant ........................................................................................11
Payment of Administrative Costs .................................................................12
Records..................... .................. ..... ... ....... ................. ............... ... ............... .13
No Business Subsidy............ ............................................................... .... .... ..13
ARTICLE IV
Construction of Minimum Improvements and Public Improvements
Construction of Minimum Improvements and Public Improvements ......... .14
Construction Plans ................ ...... ..... .......... ... .... ........... ...... ............ ... .... ....... .14
Completion of Construction................ ........................... ........... .................. ..15
Certificate of Completion.... ...... ....... ........................ ...................... .... .... .... ..16
ARTICLE V
Insurance
Insurance. .... .......... ........................ .................... .... .......... ... .......................... .17
Subordination..... ................ ... ....... .... .......... ... .... ....... ... .................. .............. ..18
ARTICLE VI
Tax Increment; Taxes
Right to Collect Delinquent Taxes................................................................19
Review of Taxes.......................................... ................. ......... ...... .... ... ....... ...19
1
Section 6.3.
Section 604.
Section 7.1.
Section 8.1.
Section 8.2.
Section 8.3.
Section 9.1.
Section 9.2.
Section 9.3.
Section 904.
Section 9.5.
Section 10.1.
Section 10.2.
Section 10.3.
Section lOA.
Section 10.5.
Section 10.6.
Section 10.7.
Section 10.8.
Section 10.9.
Section 10.1 O.
Section 10.11.
SCHEDULE A
SCHEDULE B
SCHEDULE C
SCHEDULE D
SCHEDULE E
SCHEDULE F
336985vlO SIB CL205-42
Assessment Agreement................................................................................ .19
Payment of Housing Notes ...........................................................................20
ARTICLE VII
Financing
Mortgage Financing................................................................................... ...21
ARTICLE VIII
Prohibitions Against Assignment and Transfer; Indemnification
Representation as to Redevelopment ............................................................22
Prohibition Against Redeveloper's Transfer of Property and
Assignment of Agreement ............................................................................22
Release and Indenmification Covenants.......................................................24
ARTICLE IX
Events of Default
Events of Default Defined ............................................................................25
Remedies on Default................................................................................. ....25
No Remedy Exclusive.................................................................................. .26
No Additional Waiver Implied by One Waiver ............................................26
Attorney Fees.............................................................................................. ..26
ARTICLE X
Additional Provisions
Conflict ofInterests; Authority Representatives Not Individually Liable....27
Equal Employment Opportunity ...................................................................27
Restrictions on Use...................................................................................... .27
Provisions Not Merged With Deed...............................................................27
Titles of Articles and Sections ......................................................................27
Notices and Demands.................................................................................. .27
Counterparts................................................................................................. .28
Recording..................................................................................................... .28
Amendment.................................................................................................. .28
Authority or City Approvals .........................................................................28
Termination.................................................................................................. .28
Description of Conunercial Property
Authorizing Resolution
Certification of Completion
Investment Letter
Assessment Agreement
Pro Forma
ii
SCHEDULE G
SCHEDULE H
SCHEDULE I
336985vlO SJB CL205-42
Sewer Improvements
Other Infrastructure
Parking Easement
iii
CONTRACT FOR PRIVATE REDEVELOPMENT
THIS AGREEMENT, made on or as of the day of
~2009. by and between COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT
AUTHORITY, COLUMBIA HEIGHTS, MINNESOTA, a public body corporate and politic (the
"Authority"), established pursuant to Minnesota Statutes, Sections 469.090 to 469.1081
(hereinafter referred to as the "Act"), and GRAND CENTRAL COMMONS LLC, a Minnesota
limited liability company (the "Redeveloper").
WITNESSETH:
WHEREAS, the Authority was created pursuant to the Act and was authorized to transact
business and exercise its powers by a resolution of the City Council of the City of Columbia
Heights ("City"); and
WHEREAS, the City and the Authority (as successor to the Housing and Redevelopment
Authority in and for the City of Columbia Heights) have undertaken a program to promote
redevelopment of land that is characterized by blight and blighting factors within the City, and in
this connection the Authority administers a redevelopment project known as the Downtown CDS
Redevelopment Project ("Project") pursuant to Minnesota Statutes, Sections 469.001 to 469.047
(the "HRA Act"); and
WHEREAS, pursuant to the Act and the HRA Act, the Authority is authorized to acquire
real property, or interests therein, and to undertake certain activities to facilitate the
redevelopment of real propeliy by private enterprise; and
WHEREAS, within the Project, the City and Authority have created the Kmart/Central
Avenue Tax Increment Financing District ("TIF District") in order to facilitate redevelopment of
certain property in the Project; and
WHEREAS, the Authority and New Heights Development, LLC ("Housing
Redeveloper") entered into that celiain Contract for Private Redevelopment dated as of
September 22,2003, as amended by a First Amendment thereto dated April 26, 2005 and by a
Second Amendment thereto dated November 22, 2005 and a Third Amendment thereto dated
August 28, 2007 and a Fourth Amendment thereto dated , ;wQ&2009 (the "I-lousing
Contract") providing for the redevelopment of certain property described as the Redevelopment
Property in the Contract; and
WHEREAS, New Heights Development, LLC has changed its legal name to Grand
Central Properties, LLC but in all respects remains the Housing Redeveloper under the Housing
Contract; and
WHEREAS, I-lousing Redeveloper sold a portion of the Redevelopment Propeliy under
the Housing Contract, which portion is described in Schedule A hereto and is referred to herein
as the "Commercial Property;" and
336985vlO SJB CL205-42
I
WHEREAS, the Authority has determined to enter into this Agreement with the
Redeveloper regarding the Commercial Improvements to be constructed on the Commercial
Property, and has fmiher determined to release the Commercial Property from any encumbrance
of the Housing Contract; and
WHEREAS, the Authority believes that the redevelopment of the Commercial Propeliy
pursuant to this Agreement, and fulfillment generally of this Agreement, are in the vital and 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 which 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:
336985vl0 SJB CL205-42
2
ARTICLE I
Definitions
Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears
from the context:
"Act" means the Economic Development Authority Act, Minnesota Statutes, Sections
469.090 to 469.108, as amended.
"Affiliate" means with respect to the Redeveloper (a) any corporation, patinership,
corporation or other business entity or person controlling, controlled by or under common
control with the Redeveloper, and (b) any successor to such party by merger, acquisition,
reorganization or similar transaction involving all or substantially all of the assets of such patiy
(or such Affiliate). For the purpose hereof the words "controlling", "controlled by" and "under
conmlon control with" shall mean, with respect to any corporation, partnership, corporation or
other business entity, the ownership of fifty percent or more of the voting interests in such entity
possession, directly or indirectly, of the power to direct or cause the direction of management
policies of such entity, whether ownership of voting securities or by contract or otherwise.
"Agreement" means this Agreement, as the same may be from time to time modified,
atnended, or supplemented.
"Authority" means the Columbia Heights Economic Development Authority, or any
successor or assign.
"Authority Representative" means the Executive Director of the Authority, or any person
designated by the Executive Director to act as the Authority Representative for the purposes of
this Agreement.
"Authorizing Resolution" means the resolution of the Authority, substantially in the form
of attached Schedule B to authorize the issuance of the Commercial Note.
"Available Tax Increment" means 90 percent of the Tax Increment attributable to the
Commercial Property (or relevant pOliion thereof, as the context requires), received by the
Authority in the six-month period before any schedule payment date on the Commercial Note.
"Business Day" means any day except a Saturday, Sunday, legal holiday, a day on which
the City is closed for business, or a day on which banking institutions in the City are authorized
by law or executive order to close.
"Business Subsidy Act" means Minnesota Statues, Sections 1161.993 to 116J.995, as
amended.
33698SvlO SJB CL20S-42
3
"Certificate of Completion" means the certification provided to the Redeveloper, or the
purchaser of any part, parcel or unit of the Commercial Property, pursuant to Section 4.4 of this
Agreement.
"City" means the City of Columbia Heights, Minnesota.
"Commercial Improvements" means the construction on the Commercial Property of
retail, office or service facilities that are permitted or conditional uses for such site under the City
zoning ordinance, consisting of two buildings, one with approximately 32,00017.000 square feet
("Phase I") and one with approximately 19,00018.000 square feet ("Phase II").
"Commercial Note" means the Tax Increment Revenue Note substantially in the form
contained in the Authorizing Resolution, issued in accordance with Section 3.4 hereof.
"Construction Plans" means the plans, specifications, drawings and related documents on
the construction work to be performed by the Redeveloper on the Commercial Property which a)
shall be as detailed 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
constmction work.
"Commercial Property" means the propelty so described on Schedule A.
"County" means the County of Anoka, Minnesota.
"Event of Default" means an action by the Redeveloper listed in Article IX of this
Agreement.
"Grant" means the grant from the Metropolitan Council described In the Grant
Agreement.
"Grant Agreement" means the Metropolitan Livable Communities Act Livable
Communities Demonstration Account Grant Agreement between the Metropolitan Council and
the City dated February 9, ;wQ+2007. as amended bv an Amendment and Extension thereto
dated December' 5. 2008.
"Holder" means the owner of a Mortgage.
"Housing Contract" means the Contract for Private Redevelopment between the
Authority and New Heights Development, LLC dated as of September 22, 2003, as amended by
a First Amendment thereto dated April 26, 2005 and by a Second Amendment thereto dated
November 22, 2005 and by a Third Amendment thereto dated August 28, 2007 and by Fourth
Amendment thereto dated , ~2009,
336985vlO S18 CL205-42
4
"Housing Notes" means the Taxable Tax Increment Revenue Notes issued under the
Housing Contract.
"Housing Redeveloper" means Grand Central Propeliies, LLC.
"Minimum Improvements" means the Commercial Improvements and the Parking Ramp.
"MOIigage" means any mortgage made by the Redeveloper which is secured, in whole or
in part, with the Commercial Propeliy and which is a permitted encumbrance pursuant to the
provisions of Article VIII ofthis Agreement.
"Other Infrastructure" means the improvements described in Section 4.1 (b) and Schedule
H.
"Parking Ramp" means the structured parking facility to be constructed on the
Commercial Prope1iy containing at least 2 10 stalls. "Phase" means Phase I or Phase II of tho
Commercial Improvements, as the eontext requiresannroximatelv 90 stalls at l!rade and an
additional 90 stalls on a second level.
"Planning Contract" has the meaning provided in Section 4.1 (b) hereof.
"Public Improvements" has the meaning provided in Section 4.1 (b) hereof.
"Public Redevelopment Costs" has the meaning provided in Section 3.3 hereof.
"Redeveloper" means Grand Central Commons LLC or its permitted successors and
assigns.
"Redevelopment Project" means the Authority's Downtown CDB Redevelopment
Project.
"Redevelopment Plan" means the Authority's Redevelopment Plan for the
Redevelopment Project, as amended.
"Sewer Improvements" means the improvements described in Section 4.I(b) and
Schedule G.
"State" means the State of Minnesota.
"Tax Increment" means that pOliion of the real property taxes which is paid with respect
to the Commercial Propeliy and which is remitted to the Authority as tax increment pursuant to
the Tax Increment Act. The term Tax Increment does not include any amounts retained by or
payable to the State auditor under Section 469.177, subd. 11 of the Tax Increment Act, and does
not include any amounts defined as tax increment under Section 469.174, subd. 25, clauses (2),
(3), (4) and (5) of the TIF Act.
336985vlO sm CL205.42
5
"Tax Increment Act" means the Tax Increment Financing Act, Minnesota Statutes,
Sections 469.174 to 469.1799, as amended.
"Tax Increment District" or "TIF District" means the Authority's Kmart/Central Avenue
Tax Increment Financing District.
"Tax Increment Plan" or "TIF Plan" means the Authority's Tax Increment Financing
Plan for the TIF District, as approved by the Authority on September 16, 2003 and by the City on
September 22, 2003, and as it may be amended from time to time.
"Tax Official" means any County assessor; County auditor; County or State board of
equalization, the conunissioner of revenue of the State, or any State or federal district coutt, the
tax court of the State, or the State Supreme Coutt.
"Termination Date" means the date the Authority receives the last installment of Tax
Increment from the County.
"Transfer" has the meaning set forth in Section 8.2(a) hereof.
"Unavoidable Delays" means delays beyond the reasonable control of the patty seeking
to be excused as a result thereof which are the direct result of war, terrorism, strikes, other labor
troubles, fire or other casualty to the Minimum Improvements, litigation commenced by third
patties which, by injunction or other similar judicial action, directly results in delays, or acts of
any federal, state or local governmental unit (other than the Authority in exercising its rights
under this Agreement) which 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 Improvements by the dates such construction is required under
Section 4.3 of this Agreement.
336985vl0 sm CL205-42
6
ARTICLE II
Representations and Warranties
Section 2.1. Representations by the Authority. The Authority makes the following
representations as the basis for the undertaking on its part herein contained:
(a) The Authority is an economic development authority duly organized and existing
under the laws of the State. Under the provisions of the Act and the TIF Plan, the Authority has
the power to enter into this Agreement and carry out its obligations hereunder, including without
limitation the authority to issue the Commercial Note and provide proceeds of the Grant, subject
to all the terms and conditions of this Agreement.
(b) The activities of the Authority are undertaken to foster the redevelopment of
certain real property which for a variety of reasons is presently underutilized, to eliminate
blighting factors and prevent the emergence of further blight at a critical location in the City, to
create increased tax base in the City, to increase commercial activity and to stimulate further
development of the TIF District and Redevelopment Project as a whole.
Section 2.2. Representations and Warranties by the Redeveloper. The Redeveloper
represents and warrants that:
(a) The Redeveloper is a limited liability company duly organized and in good
standing under the laws of the State of Minnesota, is not in violation of any provisions of its
article of organization or the laws of the State, is duly authorized to transact business within the
State, has power to enter into this Agreement and has duly authorized the execution, delivery and
performance of this Agreement by proper action of its members.
(b) The Redeveloper will construct, operate and maintain the Minimum
Improvements in accordance with the terms of this Agreement, the Redevelopment Plan and all
applicable 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 Redeveloper or the Authority in the Project Area may
be or will be in violation of mlY environmental law or regulation (other thml those notices or
communications 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 mlY person a valid claim under any
local, state or federal environmental law, regulation or review procedure.
(d) The Redeveloper will construct the Minimum 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
336985vl0 8m CL205-42
7
and federal laws and regulations which must be obtained or met before the Minimum
Improvements may be lawfully constructed.
(f) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of,
the terms, conditions or provisions of any partnership or company restriction or any evidences of
indebtedness, agreement or instrument of whatever nature to which the 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 or the City 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, and the Authority or the City or prevails in such action,
the Redeveloper agrees that it shall, within ten days of written demand by the City, pay to the
City the reasonable fees of such attorneys and such other expenses so incurred by the City.
(h) The Redeveloper shall promptly advise City in writing of all litigation or claims
affecting any part of the Minimum Improvements and all written complaints and charges made
by any governmental authority materially affecting the Minimum Improvements or materially
affecting Redeveloper or its business which may delay or require changes in construction of the
Minimum Improvements.
(i) The proposed redevelopment by the Redeveloper hereunder would not occur but
for the tax increment financing assistance being provided by the Authority hereunder.
G) The Redeveloper is not currently in default under any business subsidy agreement
with any grantor, as such terms are defined in the Business Subsidy Act.
336985vl0 SJB CL205-42
8
ARTICLE III
Property Acquisition. Parkin2 Ramp Financin2
Section 3.1. Status of the Property. As of the date of this Agreement, the Redeveloper
has acquired the Commercial Propelty from the Housing Redeveloper. The Authority has no
obligation to acquire the Cormnercial Property or any portion thereof. The Redeveloper and the
Commercial Property are released in all respects from the Housing Contract.
Section 3.2. Environmental Conditions. (a) The Redeveloper acknowledges that the
Authority makes no representations or warranties as to the condition of the soils on the
Commercial Propelty or the fitness of such propelty for construction of the Minimum
Improvements or any other purpose for which the Redeveloper may make use of such propelty,
and that the assistance provided to the Redeveloper under this Agreement neither implies any
responsibility by the Authority or the City for any contamination of the Commercial Property nor
imposes any obligation on such pmties to pmticipate in any cleanup of such property.
(b) Without limiting its obligations wlder Article VIII of this Agreement the
Redeveloper further agrees that it will indemnify, defend, and hold harmless the Authority, the
City, and their goveming body members, officers, and employees, from any claims or actions
arising out of the presence, if any, of hazardous wastes or pollutants existing on or in the
Commercial Property, unless and to the extent that such hazardous wastes or pollutants are
present as a result of the actions or omissions of the indenmitees. Nothing in this section will be
construed to limit or affect any limitations on liability of the City or Authority under State or
federal law, including without limitation Minnesota Statutes Sections 466.04 and 604.02.
Section 3.3. Public Redevelopment Costs. The Redeveloper shall construct the Parking
Ramp in accordance with Article IV hereof. All costs of construction of the Parking Ramp are
referred to as the "Public Redevelopment Costs". The Authority will assist in financing the
Public Redevelopment Costs in pmt through issuance of the Commercial Note nnder Section 3.4
hereof, and in pmt through proceeds of the Grant under Section 3.5.
Section 3.4. Issuance of Cormnercial Note. (a) Terms. In order to reimburse the
Redeveloper for a portion of the Public Redevelopment Costs incurred by Redeveloper, the
Authority shall issue and the Redeveloper shall purchase the Commercial Note in the maximum
aggregate principal amount of $110,000.300.000. The Conunercial Note will be payable solely
from Available Tax Increment. The terms of the Conunercial Note, including maturity, payment
dates atld interest rate, will be substantially those set fOlth in the form of the Commercial Note
shown in Schedule B. The Commercial Note will be dated as of the date of delivery, and interest
will accrue from such date. Redeveloper is the sole beneficiary of the Commercial Note, and no
other party (including without limitation the Housing Redeveloper) has any right, title or interest
in the Commercial Note unless assigned such rights in accordance with the terms thereof.
(b) Issuance. Before issuance and delivery of the Conunercial Note, Redeveloper
must submit to the Authority one or more cettificates signed by the Redeveloper's duly
336985vlO sm C!.205-42
9
authorized representative, containing the following: (i) a statement that each cost identified in the
certificate is a Public Redevelopment Cost incurred on or in connection with the Parking Ramp
and that no part of such cost has been included in any previous cel1ification under this Section, or
reimbursed or requested to reimbursed from Grant proceeds under Section 3.5; (ii) evidence that
each identified Public Redevelopment Cost has been paid or incurred by or on behalf of the
Redeveloper, and (iii) a statement that no uncured Event of Default by the Redeveloper has
occurred and is continuing under the Agreement. The Authority may, if not satisfied that the
conditions described herein have been met, return any certificate with a statement of the reasons
why it is not acceptable and requesting such further documentation or clarification as the
Authority may reasonably require. The Authority will deliver the Commercial Note upon receipt
and approval of certificates evidencing Public Redevelopment Costs in at least the principal
amount of the Commercial Note, and Redeveloper having delivered to the Authority an
investment letter in substantially the form of Schedule D.
(c) Termination of right to Commercial Note. Notwithstanding anything to the
contrary in this Agreement (exceot as otherwise orovided in oara!!raoh (d) of this Section), if
the conditions for delivery of the Commercial Note are not met by July 23, 2009 (which is the
date of expiration of the "five year rule" for the TIF District under Section 469.1763 of the TIF
Act), the Authority may terminate the Commercial Note by ten days written notice to the
Redeveloper. Thereafter neither party shall have any obligations or liability to the other
hereunder, except that any obligations of the Redeveloper under Sections 3.2, 3.6 and 8.3 survive
such termination. The Redevelooer exoresslv acknowled!!es that. in order to be eli!!ible to
receive the Commercial Note. Redevelooer must incur and Day Public Redevelooment
Costs (which are costs of constructin!! the Parkin!! Ramo) in at least the orincioal amount
of the Commercial Note bv no later than July 23. 2009 unless such date is extended as
orovided in oara!!raoh (d) of this Section. If Redevelooer fails to timely incur and Day such
Public Imorovement Costs (and otherwise meet the reauirements for issuance of the
Commercial Note under oara!!raoh (b) of this Section). the Authority will have no
obli!!ation to issue the Commercial Note or reimburse Redevelooer from Available Tax
Increment other than with resoect to amounts of Public Redevelooment Costs that were
timely oaid and submitted to the Authority in accordance with this Section.
(d) Extension of Five-veal' Rule. The oarties a!!ree and understand that the
Authority is in the orocess of seekin!! soeciallegislation in the 2009 le!!islative session that
would extend the five-year rule for the TIF District bv an additional five Years. If
le!!islation is enacted in the 2009 le!!islative session that extends the TIF District bv at least
one Year. the latest date for issuance of the Commercial Note under oara!!raoh (c) of this
Section is automatically extended to June 10. 2010.
~ Qualifications. The Redeveloper understands and acknowledges that the
Authority makes no representations or warranties regarding the amount of Available Tax
Increment, or that revenues pledged to the Commercial Note will be sufficient to pay the
principal and interest on the Commercial Note. Any estimates of Tax Increment prepared by the
Authority or its financial advisors in connection with the TIF District or this Agreement are for
the benefit of the Authority, and are not intended as representations on which the Redeveloper
may rely. The Redevelooer exoresslv acknowled!!es that oroiections of Available Tax
336985vlO SJB CL205-42
10
Increment nrenared at the time this Al!reement was nel!otiated assume comnletion of the
Miuimum Imnrovements as of Januarv 2. 2010. creatinl! full tax increment for taxes
navable in 2011. Redeveloner further acknowledl!es that. while Redeveloner is not relluired
to comnlete the Minimum Imnrovements until June 30. 2010 under Section 4.3 hereof. the
Assessment Al!reement described in Section 6.3 hereof relluires that the minimum market
value of the Minimum Imnrovements is effective as of Januarv 2.2010. such that taxes will be
navable on the snecified minimum value in 2011 as if the Minimum Imnrovements are
comnleted as of Januarv 2. 2010. If the Public Redevelopment Costs exceed the principal
amount of the Commercial Note and proceeds of the Grant, such excess is the sole responsibility
of Redeveloper.
(e) Reduction of Assistance. The financial assistance to the Redeveloper under this
Agreement is based on certain assumptions regarding likely costs and expenses associated with
constructing the Commercial Improvements. The Authority and the Redeveloper agree that
those assumptions will be reviewed at the times described in this Section, and that the amount of
Commercial Note will be adjusted accordingly.
(i) Definitions. For the purposes of this Section, the following terms have the
following definitions:
"Calculation Date" means 60 days after the earliest of (i) the date of Stabilization;
(ii) the date of any Transfer in whole or in part of the Commercial Property or (Hi) three
years after the date of issuance of the Certificate of Completion for the Commercial
Improvements.
"Net Operating Income" means all net rental income from the Commercial
Improvements received in the last fiscal year prior to the Calculation Date, subject to the
following adjustments: (i) if the Commercial Improvements have not reached
Stabilization as of the Calculation Date, income will be calculated as the sum of actual
net rent plus assumed rent for the space needed to reach 95% lease-up at rates equal to
the average rent from actual leases as of the Calculation Date; (ii) from that total will be
deducted non-reimbursable expenses (e.g., common area maintenance charges, insurance
and taxes) allocated to the actual vacant area (if Stabilization has occurred) or allocated to
the assumed 5% vacant area (if Stabilization has not occurred).
"Return on Investment" means cash-on-cash return on investment calculated as
shown in Schedule F (see "Return on Inves.-Annual" on page F-5); based on Net
Operating Income and all expenses shown in Schedule F.
"Stabilization" means 95% ofleaseable space in the Commercial Improvements is
leased.
"Target Return On Investment" means a Retum on Investment of 12%.
(ii) Lookback Calculation. Upon the Calculation Date, the Redeveloper must
deliver to the Authority reasonable evidence of its Return on Investment calculated as of
336985vl0 8m CL205-42
11
the Calculation Date, determined in accordance with generally accepted accounting
principles ("GAAP") and substantially in the format of the lookback pro forma attached
as Schedule F hereto (except that if definitions in this Section vary from GAAP, the
provisions of this Section control). The Redeveloper agrees to provide to the Authority's
consultant any background documentation related to the financial data, upon request.
The Authority may request a written certificate of a certified public accountant regarding
all operating expenses and Net Operating Income, to be provided at Redeveloper's
expense (which expense may be included as part of operating expenses.
If the Return on Investment exceeds the Target Return on Investment, the portion
of Net Operating Income in excess of the amount that produces the Target Return on
Investment is referred to as the "Excess Amount." On the Calculation Date, 50% of the
Excess Amount will be applied to reduce the outstanding principal amount of the
Commercial Note in accordance with the terms of Section 5(b) of the Commercial Note.
Such event must be evidenced by delivery by the Authority to the Redeveloper of a
written notice stating the Excess Amount. The one-half share of Excess Amount will be
deemed prepaid as of the Calculation Date.
Section 3.5. Met Council Grant. (a) As further assistance to make development of the
Minimum Improvements economically feasible, the City will payor reimburse Redeveloper for
up to $974,369 in costs of the Parking Ramp, but solelv from and to the extent of proceeds of the
Grant in accordance with all the telms and conditions of the Grant Agreement. Proceeds of the
Met Council grant will be disbursed upon execution of and in accordance with a disbursing
agreement in a form mutually agreed by the City, the Authority and the Redeveloper. The
parties agree and understand that the disbursing agreement will set forth procedures for draw
requests consistent with the terms of this Section and the Grant Agreement. The disbursing
agreement may be executed by Authority and City officials subject to approval by the Mayor,
Authority President and Authority Executive Director, provided that execution of the agreement
by those officials will be conclusive evidence of their approval.
(b) By no later than 30 days after the date of this Agreement, the Redeveloper shall
execute and deliver to the Authority the Parking Easement in recordable form, in substantially
the form attached as Schedule I.
(c) Developer shall comply with all terms and conditions of the Grant Agreement as
if Redeveloper were grantee. Without limiting the forgoing, Redeveloper shall:
(i) ensure that all contracts and subcontracts related to the Parking Ramp
costs funded by the Grant comply with all applicable State and federal laws, including
applicable State and federal Occupational Safety and Health Act regulations;
(ii) meet all requirements of federal and State law relating to stormwater
discharges, including without limitation, any applicable requirements of title 40, CFR,
parts 122 and 123;
336985vl0 sm CL205-42
12
(iii) acknowledge the assistance provided by the Metropolitan Council in
promotional materials, press releases, rep01is and publications relating to development of
the Commercial Propeliy, which acknowledgement must contain the following language:
Financing for this project was provided by the Metropolitan Council Metropolitan
Livable Communities Fund and by the Columbia Heights Economic Development
Authority. Such statement shall also be included on signs located on the Commercial
until substantial completion of all Minimum Improvements constructed thereon.
(d) The Redeveloper is the sole beneficiary of this Section, and no third party
(including without limitation the Housing Redeveloper) shall have any right, title or interest in
proceeds of the Grant unless assigned by Redeveloper in accordance with the terms and
conditions of this Agreement.
(e) Redeveloper acknowledges and understands that the Grant Agreement expires as
of December 31, 2008. 2009. and that the curreut Grant Ae:reemeut calls for construction
of a narkine: structure with 230 stalls toe:ether 50 stalls constructed at-e:rade, for a total of
280 stalls. The Authority will use its best eff01is to cnsare the time line is extended, and
reasonably believes that if Reae'/eloper eOlllj3lies with this ,\grecment, inelMding timely delhery
of the Parkillg Easemellt ill accorduBee with this Seetion, the time for disbursement of fUllds will
be oJ[tended. Hay/ever, themodifv the Grant Ae:reement in order to nermit construction of
the Parkine: Ramn with 180 stalls total (inc1udine: at-e:rade and second level narkine:), The
Authority makes no warranties or representations to that effectthat such amendment will be
obtained. or that if thc Metronolitan Council ae:rees to an amendment. that the amount of
the e:rant will not be reduced. The Authority has no oblie:ation to nrovide funds under this
Section excent from and to the extent nroceeds of the Grant are available from the
Metronolitan Council under the terms of an amended Grant Ae:reement.
Section 3.6. Payment of Administrative Costs. The Redeveloper is responsible for
"Administrative Costs," which means out-of-pocket costs incurred by the Authority attributable
to or incurred in connection with the negotiation and preparation of this Agreement and other
documents and agreements in connection with the Commercial Property. Redeveloper shall pay
such amounts from time to time within ten calendar days of receipt of a notice from the
Authority reasonably documenting the Administrative Costs then due. The Authority
acknowledges that Redeveloper has no liability for Administrative Costs reasonably allocated to
the Housing Property and the Housing Contract, including without limitation costs related to
issuance of the Housing Notes.
Section 3.7. Records. The Authority or its representatives shall have the right at all
reasonable times after reasonable notice to inspect, examine and copy all books and records of
Redeveloper relating to the Minimum Improvements.
Section 3.8. No Business Subsidy. The Redeveloper warrants and represents that its
investment in the purchase of the Commercial Propeliy (which occurred in 2007) will equal at
least 70% of the County assessor's estimated market value of the Commercial Property for the
2007 assessment year, calculated as follows:
336985vlO sm CL205-42
13
Commercial Property cost............................................................. .$1 ,400,000
2007 Assessor's Estimated Fair Market Value
of Commercial Property..................................................................... ..$530,500
Cost equals 264% of market value.
Accordingly, the parties agree and understand that the financial assistance described in
this Agreement does not constitute a business subsidy within the meaning of the Business
Subsidy Act, pursuant to Section 116J.993, subd. 3(17) thereof. Notwithstanding anything to the
contrary in Section 8.3(b) hereof, the Redeveloper releases from and covenants and agrees that
the Authority and the City and the governing 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 against any claim arising from application of the Business Subsidy Act to this
Agreement, including without limitation any claim from any person or entity that the Authority
failed to comply with the Business Subsidy Act with respect to this Agreement.
336985v10 sm CL205.42
14
ARTICLE IV
Construction of Minimum Improvements and Public Improvements
Section 4.1. Construction of Minimum Improvements and Public Improvements. (a) The
Redeveloper agrees that it will construct or cause construction ofthe Minimum Improvements on
the Commercial Property, in accordance with approved Construction Plans and at all times while
Redeveloper owns the Commercial Propeliy, will operate and maintain, preserve and keep the
respective components of the Minimum Improvements or cause such components be maintained,
preserved and kept with the appurtenances and every part and parcel thereof, in good repair and
condition.
(b) The Redeveloper must construct (I) the oversized sanitary sewer mains required
by the City as described in more detail in Schedule G (the "Sewer Improvements"); and (2) any
streets and associated traffic improvements, sewer, water, storm sewer improvements, sidewalks,
landscaping, open space and related amenities located within or serving the Commercial
Property, all described in more detail in Schedule H (the "Other Infrastructure"). The Sewer
Improvements and Other Infrastructure are referred to together as the "Public Improvements."
Before commencing such construction, the Redeveloper must enter into the planning contract
with the City in substantially the form approved by the City Council on September 8, 2008 (the
"Planning Contract"), addressing City requirements for construction of the Other Infrastructure
and security therefore in accordance with City ordinances and procedures. Redeveloper must
construct the Public Improvements substantially in accordance with the plans described in
Schedules G and H and shall comply with all City requirements regarding such improvements.
The parties agree and understand that the City will accept the improvements in accordance with
City procedures and the Planning Contract.
Section 4.2. Construction Plans. (a) Before commencement of construction of the
Minimum Improvements, the Redeveloper shall submit to the Authority Construction Plans. The
Construction Plans shall provide for the construction of the Minimum Improvements and shall be
in conformity with the TIF Plan, Redevelopment Plan, this Agreement, the Planning Contract
and all applicable State and local laws and regulations. The Authority Representative will
approve the Construction Plans in writing if: (i) the Construction Plans conform to the terms and
conditions of this Agreement; (ii) the Constmction Plans conform to the goals and objectives of
the Redevelopment Plan; (iii) 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 the Minimum Improvements; (v) the Construction Plans do not provide for
expenditures in excess of the funds available to the Redeveloper from all sources (including
Redeveloper's equity) for constmction of the Minimum Improvements; and (vi) no Event of
Default has occurred. Approval may be based upon a review by the City's Building Official of
the Construction Plans. No approval by the Authority Representative shall relieve the
Redeveloper of the obligation to comply with the terms of this Agreement or of the Development
Plan, applicable federal, state and local laws, ordinances, mles and regulations, or to construct
the Minimum Improvements in accordance therewith. No approval by the Authority
Representative shall constitute a waiver of an Event of Default. If approval of the Construction
336985v10 sm CL205-42
15
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 Authority Representative, in
whole or in part. Such rejections shall set forth in detail the reasons therefore, and shall be made
within 10 days after the date of their receipt by the Authority. If the Authority Representative
rejects any Construction Plans in whole or in part, the Redeveloper shall submit new or corrected
Construction Plans within 10 days after written notification to the Redeveloper of the rej ection.
The provisions of this Section relating to approval, rejection and resubmission of cOlTected
Construction Plans shall continue to apply until the Construction Plans have been approved by
the Authority. The Authority Representative's approval shall not be umeasonably withheld,
delayed or conditioned. Said approval shall constitute a conclusive determination that the
Construction Plans (and the Minimum Improvements constructed in accordance with said plans)
comply to the Authority's satisfaction with the provisions of this Agreement relating thereto.
(b) If the Redeveloper desires to make any material change in the Construction Plans
after their approval by the Authority, the Redeveloper shall submit the proposed change to the
Authority for its approval. If the Construction Plans, as modified by the proposed change,
conform to the requirements of Section 4.2 of this Agreement with respect to such previously
approved Construction Plans, the Authority shall approve the proposed change and notifY the
Redeveloper in writing of its approval. Such change in the Construction Plans shall, in any
event, be deemed approved by the Authority unless rejected, in whole or in part, by written
notice by the Authority to the Redeveloper, setting forth in detail the reasons therefor. Such
rejection shall be made within ten (10) days after receipt of the notice of such change. The
Authority's approval of any such change in the Construction Plans will not be umeasonably
withheld.
Section 4.3. Completion of Construction. Subject to Unavoidable Delays, the
Redeveloper must commence construction of the Parking Ramp and both PhasesDortions of the
Commercial Improvements by MayJune 1,2009; the term "commencement" means at least the
first work on footings or foundations. Subject to Unavoidable Delays, the Redeveloper must
substantially complete construction of hutlL.the Parking Ramp and both Phascs of the
Commercial Improvements by December 31, 2009.,June 30. 2010. All work with respect to the
Minimum Improvements to be constructed or provided by the Redeveloper on the Commercial
Property shall be in substantial conformity with the Construction Plans as submitted by the
Redeveloper and approved by the Authority, and with he Planning Contract.
The Redeveloper agrees for itself, its successors and assigns, and every successor in
interest to the Commercial 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 Commercial Property through the construction 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
conveyance of the Commercial Property, or any part thereof, to the Redeveloper, and until
construction of the Minimum Improvements 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 ofthe Redeveloper with respect to such construction.
336985vlO SJB CL205.42
16
Section 4.4. Certificate of Completion. (a) Promptly after substantial completion of the
Minimum Improvements (and each eomponent or Phase thereof) in accordance with those
provisions of the Agreement relating solely to the obligations ofthe Redeveloper to construct the
Minimum Improvements (including the dates for completion thereof), the Authority will furnish
the relevant Redeveloper with a Celtificate of Completion in substantially the form attached as
Schedule C. Such certification by the Authority shall be a conclusive determination of
satisfaction and termination of the agreements and covenauts in the Agreement with respect to
the obligations of the Redeveloper, and its successors and assigns, to construct the relevant
component of the Minimum Improvements and the dates for the completion thereof. Such
certification and such determination shall not constitute evidence of compliance with or
satisfaction of any obligation of the Redeveloper to any Holder of a Mortgage, or any insurer of a
Mortgage, securing money loaned to finance the Minimum Improvements, or any part thereof.
(b) Each Certificate of Completion 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 Commercial 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 Minimum Improvements in accordance 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 celtification.
( 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 for
all Conunercial Improvements in that Phase (except for any tenant build-outs), and the Parking
Ramp and all site improvements have been substantially completed as reasonably determined by
the Authority Representative.
336985vl0 SJB CL205-42
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ARTICLE V
Insurance
Section 5.1. Insurance. (a) The Redeveloper will provide and maintain (or cause to be
provided and maintained by Redeveloper's contractor) at all times during the process of
constlUcting 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 nonrepOlting 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 Contractor's Policy 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) All insurance required in Alticle V of this Agreement shall be taken out and
maintained in responsible insurance companies selected 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 policies evidencing all such insurance, or a
certificate or certificates or binders of the respective insurers stating that such insurance is in
force and effect. Unless otherwise provided in this Article 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 effective. 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
which event the Redeveloper shall deposit with the Authority a celtificate or certificates of the
respective insurers as to the amOlUlt of coverage in force upon the Minimum Improvements.
(c) The Redeveloper agrees to notify the Authority immediately in the case of
damage exceeding $100,000 in amount to, or destruction of, the Minimum Improvements or any
portion thereof resulting from fire or other casualty. In such 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 damage and, to the
336985v10 sm CL205-42
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extent necessary to accomplish such repair, reconstruction 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 ofthe costs thereof.
The Redeveloper shaH 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, constmction and restoration shaH be the property of the
Redeveloper.
(d) The Redeveloper and the Authority agree that all of the insurance provisions set
fOlth in this Article V shaH 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 shaH, in aH respects, be subject and subordinate to the rights of any lender under a
MOltgage approved pursuant to Alticle VII of this Agreement.
336985v10 sm CL205.42
19
ARTICLE VI
Tax Increment; Taxes
Section 6.1. Right to Collect Delinquent Taxes. The Redeveloper acknowledges that the
Authority is providing substantial aid and assistance in furtherance of the redevelopment
described in this Agreement, in pmt through issuance of the Commercial Note. The Redeveloper
understands that the Tax Increments pledged to payment of the Commercial Note me derived
from real estate taxes on the Minimum Improvements, which taxes must be promptly and timely
paid. To that end, the Redeveloper agrees for itself, its successors and assigns, in addition to the
obligation pursuant to statute to pay real estate taxes, that it is also obligated by reason of this
Agreement to pay before delinquency all real estate taxes assessed against the Commercial
Property and the Minimum Improvements. The Redeveloper acknowledges that this obligation
creates a contractual right on behalf of the Authority through the Termination Date to sue the
Redeveloper or its successors and assigns to collect delinquent real estate taxes and any penalty
or interest thereon and to pay over the same as a tax payment to the county auditor. In any such
suit, the Authority shall also be entitled to recover its costs, expenses and reasonable attorney
fees.
Section 6.2. Review of Taxes. The Redeveloper agrees that prior to the Termination
Date, it will not cause a reduction in the real propelty taxes paid in respect of the Commercial
Propelty through: (A) willful destruction of the Commercial Property or any part thereof; or (B)
willful refusal to reconstruct damaged or destroyed property pursuant to Section 5.1 of this
Agreement. The Redeveloper also agrees that it will not, prior to the Telmination Date, apply
for a deferral of propelty tax on the Commercial Property pursuant to any law, or transfer or
permit transfer of the Commercial Property to any entity whose ownership or operation of the
propelty would result in the Commercial Property being exempt from real estate taxes under
State law (other than any portion thereof dedicated or conveyed to the City or Authority in
accordance with this Agreement).
Section 6.3. Assessment Agreement. (a) Prior to commencement of construction-ef
Phase I of the Commercial Improvements, the Redeveloper shall, with the Authority, execute an
Assessment Agreement pursuant to Minnesota Statutes, Section 469.177, subd. 8, specifying an
assessor's minimum Market Value for Phase Hhe Minimum Imnrovements and the
Commercial Property. The amount of the minimum Market Value shall be $1,000,0004.375.000
as. of January 2, 2010 and each January 2 thereafter, notwithstanding the status of construction
by such date, but subject to the adjl1stmcnt described ill paragraph (b) of this Scction. .
(b) Prior to commellcemettt of Elll)' work 011 Phase II of the Commercial Improvements
beyolld footillgs and foundations, bat in Em)' event promptly upon the l.athority's approval of
fillancillg for Phasc II ill accordance ':lith Articlc VII Ilercof, thc Redeveloper shall, with the
f.uthority, execute an addendum to the f.ssessmettt .^.greement pl1l'Suattt to Mi1l11esotu Statutes,
Section 169.177, subd. 8, aading the assessor's millimum Market Value for Phase II of the
Commereial Improvements to the minimum markct vallle specified in the origillal f.ssessment
i\grcemettt. The amount of additioaal minimum MaI'ket Value shall be $2,100,000 effective us
336985vlO S18 CL205-42
20
of January 2, 2010, sueh that the total minimum market value for Phase I and Phase II together
':;ith the Commercial Property shall be $6,100,000 as of January 2, 2010 and eaoh Jamlary 2
thereafter, notwithstanding the status of construction by suoh date. ( c) The
Assessment Agreement shall be substantially in the form attached hereto as Schedule E, subject
to the addendum described in paragraph (b) of this Section. The Redeveloper shall obtain the
signature of the County Assessor on the Certificate to the original Assessment Agreement and
the addendum, and shall at its cost record the original Assessment Agreement and tho addendum
in the office of the County recorder and/or registrar of titles. Nothing in Assessment Agreement
shall limit the discretion of the assessor to assign a market value to the property in excess of the
assessor's minimum Market Value. The Assessment Agreement shall remain in force for the
period specified in the Assessment Agreement.
Section 6.4. Pavment of Housing Notes. Upon full execution and delivery of the
Housing Notes pursuant to the Housing Contract, the Authority will wire transfer to the
Redeveloper, as holder of the Commercial Redeveloper Housing Note (defined in the Housing
Contract), an amount equal to $166,928,207.900. which represents the Commercial Redeveloper
Available Tax Increment (as defined in the Housing Contract) currently on hand. This amount is
90% of 50% of the Tax Increment attributable to the Housing Property (defined in the Housing
Contract) that the Authority has received prior to the first payment date for the Housing Notes.
At Redeveloper's request, the payment will be transferred to the title company designated by the
Redeveloper.
336985vl0 sm CL205-42
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ARTICLE VII
Financing
Section 7.1. Mortgage Financing. (a) Before commencement of construction of fi1-tIw
Parking Rllffij3 and Phase I of the Commercial Improvcmcnts, and (ii) Phase II of thc
Commereialanv nortion of the Minimum Improvements, the Redeveloper shall submit to the
Authority evidence of one or more commitments for financing which, together with committed
equity for such constmction, is sufficient for payment of the cost of such impl'Ovemcntsall the
Minimum Imnrovements. Such commitments may be submitted as short term financing, long
term mortgage financing, a bridge loan with a long term take-out financing commitment, or any
combination of the foregoing. The evidcnce of finaneing dcscribed in elallscs (i) and (ii) may bc
submitted at different times.
(b) If the Authority finds that the financing is sufficiently committed and adequate in
amount to pay the costs specified in paragraph (a) 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 twenty (20) days from the date when the
Authority is provided the evidence of financing. A failure by the Authority to respond to such
evidence of financing shall be deemed to constitute an approval hereunder. If the Authority
rejects the evidence of 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 financing within
ten (10) days after such rejection.
(c) In the event that there occurs a default under any Mortgage authorized pursuant to
Section 7.1 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 MOltgage
documents. In the event there is an event of default under this Agreement, the Authority will
transmit to the Holder of any Mortgage a copy of any notice of default given by the Authority
pursuant to Article IX of this Agreement.
(d) In order to facilitate the securing of other financing, the Authority agrees to
subordinate its rights under this Agreement provided that such subordination shall be subject to
such reasonable terms and conditions as the Authority and Holder mutually agree in writing.
Notwithstanding anything to the contrary herein, any subordination agreement must include the
provision described in Section 7.1 (c), and in no event will the Authority subordinate its interest
in any Assessment Agreement.
336985v10 sm CL205-42
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ARTICLE VIII
Prohibitions Against Assignment and Transfer; Indemnification
Section 8.1. Representation as to Redevelopment. The Redeveloper represents and
agrees that its purchase of the Commercial Property, and its other undeltakings pursuant to the
Agreement, are, and will be used, for the purpose of redevelopment of the Commercial Property
and not for speculation in land holding.
Section 8.2. Prohibition Against Redeveloper's Transfer of Proper tv and Assignment of
Agreement. The Redeveloper represents and agrees that until issuance of the Certificate of
Completion for the Minimum Improvements:
(a) Except as specifically described in 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 this Agreement or the Commercial Property or any part thereof or any interest
therein, or any contract or agreement to do any of the same, to any person or entity (collectively,
a "Transfer"), without the prior written approval ofthe Authority's board of commissioners. The
term "Transfer" does not include (i) encumbrances made or granted by way of security for, and
only for, the purpose of obtaining construction, interim or permanent financing necessary to
enable the Redeveloper or any successor in interest to the Commercial Property or to construct
the Minimum Improvements or component thereof, or (ii) any lease, license, easement or similar
alTangement entered into in the ordinary course of business related to operation of the Minimum
Improvements.
(b) If the Redeveloper seeks to effect a Transfer prior to issuance of the Certificate of
Completion, the Authority shall be entitled to require as conditions to such Transfer that:
(1) any proposed transferee shall have the qualifications and financial
responsibility, in the reasonable judgment of the Authority, necessary and adequate to
fulfill the obligations undertaken in this Agreement by the Redeveloper as to the portion
of the Commercial Propelty to be transferred; and
(2) Any proposed transferee, by instrument in writing satisfactory to the
Authority and in form recordable in the public land records of Anoka County, Milmesota,
shall, for itself and its successors 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 pOltion of the Commercial Property to be transferred and agreed to
be subject to all the conditions and restrictions to which the Redeveloper is subject as to
such pOltion; provided, however, that the fact that any transferee of, or any other
successor in interest whatsoever to, the Commercial Propelty, or any part thereof, shall
not, for whatever reason, have assumed such obligations or so agreed, and shall not
(unless and only to the extent otherwise specifically provided in this Agreement or agreed
to in writing by the Authority) deprive the Authority of any rights or remedies or controls
336985vl0 SIB CL205-42
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with respect to the Commercial Property, the Minimum Improvements or any part thereof
or the construction of the Minimum Improvements; it being the intent of the parties as
expressed 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 Commercial
Propelty 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 Commercial Propelty 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 Commercial Propelty, from
any of its obligations with respect thereto.
(3) Any and all instruments and other legal documents involved in effecting
the transfer of any interest in this Agreement or the Commercial Propelty govemed by
this Alticle VIII, shall be in a form reasonably satisfactory to the Authority.
(c) If the conditions described in paragraph (b) are satisfied then the Transfer will be
approved and the Redeveloper shall be released from its obligation under this Agreement, as to
the portion ofthe Commercial Property that is transferred, assigned, or otherwise conveyed. The
provisions of this paragraph (c) apply to all subsequent transferors, assuming compliance with
the terms of this Alticle.
(d) Upon issuance of the Certificate of Completion, the Redeveloper may transfer or
assign the Minimum Improvements and/or the Redeveloper's rights and obligations under this
Agreement with respect to such propelty without the prior written consent of the Authority;
provided that:
(i) until the Termination Date the transferee or assignee is bound by all the
Redeveloper's obligations hereunder with respect to the propelty and rights transferred.
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
Redeveloper's obligations under this Agreement. If the Redeveloper fails to provide such
evidence of transfer and assumption, the Redeveloper shall remain bound by all
obligations with respect to the subject property under this Agreement; and
(ii) upon compliance with clause (d) (i) above (whether the transfer occurred
before or after issuance of the Certificate of Completion), the Redeveloper shall be
released from its obligations under this Agreement with respect to the propelty
transferred.
The provisions of this paragraph (d) apply to all subsequent transferors, assuming compliance
with the terms of this Article.
336985vlO SJB CL205-42
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(e) Nothing in this Atticle VIII will be construed to require, as a condition for release
of the Redeveloper hereunder or otherwise, that purchasers of any unit assume any obligations of
the Redeveloper. Upon sale of any residential unit to an initial owner-occupant, the Authority
will provide to Redeveloper or the buyer a certificate in recordable form releasing the unit from
all encumbrances of this Agreement.
Section 8.3. Release and Indenmification Covenants. (a) The Redeveloper releases from
and covenants and agrees that the Authority and the City and the governing 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 against any loss or damage to property or any injury to or death
of any person occurring at or about or resulting from any defect in the Minimum Improvements
or the Public Improvements.
(b) Except for any willful or negligent misrepresentation or any willful or wanton
misconduct or negligence of the following named parties, the Redeveloper agrees to protect and
defend the Authority and the City and the governing body members, officers, agents, servants
and employees thereof (the "Indemnified Parties"), now or forever, and further agrees to hold the
Indemnified Patties harmless from any claim, demand, suit, action or other proceeding
whatsoever by any person or entity whatsoever arising or purportedly arising from this
Agreement, or the transactions contemplated hereby or the acquisition, construction, installation,
ownership, and operation of the Minimum Improvements and Public Improvements.
(c) Except for any negligence of the Indenmified Parties (as defined in clause (b)
above), and except for any breach by any of the Indemnified Patties of their obligations under
this Agreement, the Indemnified Patties shall not be liable for any damage or injury to the
persons or propetty of the Redeveloper or its officers, agents, servants or employees or any other
person who may be about the Minimum Improvements or Public Improvements due to any act of
negligence of any person.
(d) All covenants, stipulations, promises, agreements and obligations ofthe 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, servant or
employee ofthe Authority in the individual capacity thereof.
336985vl0 SJB CL205-42
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ARTICLE 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, anyone or more of the following events, after the non-defaulting party provides 30
days written notice to the defaulting party of the event, but only if the event has not been cured
within said 30 days or, if the event is by its nature incurable within 30 days, the defaulting party
does not, within such 3D-day period, provide assurances reasonably satisfactory to the party
providing notice of default that the event will be cured and will be cured as soon as reasonably
possible:
(a) Failure by the Redeveloper or the Authority to observe or perform any covenant,
condition, obligation, or agreement on its part to be observed or performed under this Agreement
or the Planning Contract;
(b) The Redeveloper:
(i) files any petition in bankruptcy or for any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under the United
States Bankruptcy Act or under any similar federal or State law;
(ii) makes an assignment for benefit of its creditors;
(iii) admits in writing its inability to pay its debts generally as they become
due; or
(iv) is adjudicated a bankrupt or insolvent.
Section 9.2. Remedies on Default. (a) Whenever any Event of Default referred to in
Section 9.1 of this Agreement occurs, 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 thitty 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:
(b) Upon an Event of Default by the Redeveloper, the Authority may withhold
payments under the COImnercial Note in accordance with its terms, which withheld amount is
payable, without interest thereon, on the first payment date after the default is cured.
(c) If an Event of Default continues for more than three years after the date of receipt
by the Redeveloper of the default notice, the Authority may terminate the Commercial Note.
336985vlO SJB CL205-42
26
(d) If the Event of Default constitutes breach of restrictions on Transfer of the
Commercial Property under Section 8.2 hereof, the Authority may terminate the Commercial
Note if the default is not cured within the periods provided in Section 9.1.
(e) Take whatever action, including legal, equitable 01' administrative 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 Remedv Exclusive. No remedy herein confe1l'ed upon or reserved to the
Authority or Redeveloper is intended to be exclusive of any other available remedy 01' 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 01' hereafter existing at law 01' in equity or by statute.
No delay or omission to exercise any right or power accming upon any default shall impair any
such right or power 01' 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 patiicular breach so waived and shall not be
deemed to waive any other concurrent, previous or subsequent breach hereunder.
Section 9.5. Attornev Fees. 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
pm of the Redeveloper under this Agreement, the Redeveloper agrees that it shall, within 10
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.
33698SvlO SIB CL2QS-42
27
ARTICLE X
Additional Provisions
Section 10.1. Conflict of Interests; Authority Representatives Not Individually Liable.
The Authority and the Redeveloper, to the best of their respective knowledge, represent and
agree that no member, official, or employee of the Authority shall have any personal interest,
direct or indirect, in the Agreement, nor shall any such member, official, or employee participate
in any decision relating to the Agreement which affects his personal interests or the interests of
any corporation, paltnership, or association in which he is, directly or indirectly, interested. No
member, official, or employee of the Authority shall be personally liable to the Redeveloper, or
any successor in interest, in the event of any default or breach by the Authority or County 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 Employment Opportunity. The Redeveloper, for itself and its
successors and assigns, agrees that during the construction of the Minimum 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 1003. Restrictions on Use. The Redeveloper agrees that until the Termination
Date, the Redeyeloper, and such successors and assigns, shall devote the Commercial Property
to, the operation of the Minimum Improvements for uses described in the definition of such term
in this Agreement, 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 Commercial Propelty or any
improvements erected or to be erected thereon, or any part thereof.
Section 10.4. Provisions Not Merged 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 Commercial 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, Articles, 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. Except 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 to the
Redeveloper at 139 Stonebridge Road, Lilydale, Minnesota 55118; and
336985vlO SJB CL205-42
28
(b) in the case of the Authority, is addressed to or delivered personally to the
Authority at 100 Civic Center Parkway, Columbia Heights, Minnesota 55337, Attn: Executive
Director; or at such other address with respect to either such patty as that party may, from time to
time, designate in writing and forward to the other as provided in this Section.
Section 10.7. Counterparts. This Agreement may be executed in any number of
counterpatts, each of which shall constitute one and the same instrument.
Section 10.8. Recording. The Authority may record this Agreement and any
amendments thereto with the Anoka County recorder. The Redeveloper shall pay all costs for
recording.
Section 10.9. Amendment. This Agreement may be atnended only by written agreement
approved by the Authority and the Redeveloper.
Section 10.10. Authority or City Approvals. Unless otherwise specified, any approval
required by the Authority under this Agreement may be given by the Authority Representative.
Section 10.11. Termination. This Agreement terminates on the Telmination Date, except
that termination of the Agreement does not terminate, limit or affect the rights of any party that
arise before the Termination Date.
336985vlO SIB CL205-42
29
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 above written.
COLUMBIA HEIGHTS ECONOMIC
DEVELOPMENT AUTHORITY
By
Its President
By
Its Executive Director
STATE OF MINNESOTA )
) ss.
COUNTY OF ANOKA )
The foregoing instrument was acknowledged before me this _ day of
200&;-2009. by and , the President and Executive
Director of the Columbia Heights Economic Development Authority, a public body politic and
corporate, on behalf of the Authority.
Notary Public
336985vl0 SJB CL205-42
30
GRAND CENTRAL COMMONS LLC
By
Its
STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this _ day of
, ;?,OO&2009 by , the of
Grand Central Commons LLC, a Minnesota limited liability company, on behalf of the company.
Notary Public
336985v 10 SJ13 CL205-42
31
SCHEDULE A
Commercial Property
Outlot C, Grant Central Lofts, Anoka County, Minnesota
336985vlO SJB CL205-42
A-I
SCHEDULE B
AUTHORIZING RESOLUTION
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY
RESOLUTION NO.
RESOLUTION APPROVING CONTRACT FOR PRIVATE REDEVELOPMENT AND
RESOLUTION AWARDING THE SALE OF, AND PROVIDING THE FORM, TERMS,
COVENANTS AND DIRECTIONS FOR THE ISSUANCE OF ITS $440,000
TAXABLE TAX INCREMENT REVENUE NOTE, SERIES 200SB
IN THE MAXIMUM PRINCIPAL AMOUNT OF $300.000
BE IT RESOLVED BY the Board of Commissioners ("Board") of the Columbia Heights
Economic Development Authority, Columbia Heights, Minnesota (the "Authority") as follows:
Section 1. Authorization.
1.01. Authorization. The Authority and the City of Columbia Heights have heretofore
approved the establishment of the Kmart/Central Avenue Tax Increment Financing District (the
"TlF District") the Downtown CBD Redevelopment Project (the "Project"), and have adopted a
tax 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
District 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 Taxable Tax Increment Revenue
Note in the maximum principal amount of $110,000300.000 (the "Note") for the purpose of
financing certain public redevelopment costs of the Project.
1.02. Approval of Agreement. The Contract for Private Redevelopment (the
"Agreement") between the Authority Grand Central Commons, LLC ("Grand Central
Propellies") is approved in substantially the form on file in City Hall, subject to modifications
that do not alter the substance of the transaction that are approved by the President and Executive
Director, provided that execution of the amendment by such officials is conclusive evidence of
and their approval.
1.03. Issuance, Sale. and TelIDS of the Note. The Authority hereby delegates to the
Executive Director the determination of the date on which the Note is to be delivered, in
accordance with the Agreement. The Note shall be issued to Grand Central Commons LLC
("Owner"). The Note shall be dated as of the date of delivery, shall mature no later than
Febmary 1,2021 and shall bear interest at the rate of 7.0% per annum from the date of original
336985v1O SJB CLZ05-42
B-1
issue of the Note. The Note is issued in consideration of payment by Owner of certain Public
Redevelopment Costs in at least the principal amount of the Note, in accordance with 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:
UNITED STATE OF AMERICA
STATE OF MINNESOTA
COUNTY OF ANOKA
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY
No.R-I
$
TAXABLE TAX INCREMENT REVENUE NOTE
SERIES 20
Rate
Date
of Original Issue
7.0%
,20_
The Columbia Heights Economic Development Authority ("Authority") for value
received, certifies that it is indebted and hereby promises to pay to Grand Central Commons LLC
or registered assigns (the "Owner"), the principal sum of $ or so much thereof as has
been from time to time advanced (the "Principal Amount"), as provided in the Agreement
defined hereafter, together with interest on the unpaid balance thereof accrued from the date of
original issue hereof at the rate of _ percent per annum (the "Stated Rate"). This Note is
given in accordance with that certain Contract for Private Redevelopment between the Issuer and
the Owner dated as of , ;um&Z009 (the "Agreement") and the authorizing
resolution (the "Resolution") duly adopted by the Authority on , ~Z009.
Capitalized terms used and not otherwise defined herein have the meaning provided for such
telms in the Agreement unless the context clearly requires otherwise.
1. Pavments. Principal and interest ("Payments") shall be paid on August 1,
;w.wZOll and each February 1 and August 1 thereafter to and including February 1, 2021
("Payment Dates") in the amounts and from the sources set fOlth in Section 3 herein. Payments
shall be applied first to accrued interest, and then to unpaid principal.
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 CUl1'ency of the United States of America which, on the Payment Date, is
legal tender for the payment of public and private debts.
2. Interest. Interest accruing from the date of original issue through and including
Febmary 1, ;w.wZOll (and not otherwise paid from Available Tax Increment) will be
336985vlO SJB CL205-42
B-2
compounded semiannually on February I and August I of each year and added to principal.
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. All payments on this Note are payable on each
Payment Date solely from and in the amount of the "Available Tax Increment," which means, on
each Payment Date, 90 percent of the Tax Increment attributable to the Commercial Property as
defined in the Agreement that is paid to the Authority by Anoka County in the six months
preceding the Payment Date.
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 such pledged revenues. The Authority shall have no obligation to pay
unpaid balance of principal or accrued interest that may remain after the final Payment on
February 1,2021.
4. Default. Upon an Event of Default by the Redeveloper under the Agreement, the
Authority may exercise the remedies with respect to this Note described in Section 9.2 of the
Agreement, the terms of which are incorporated herein by reference.
5. Optional Prepavment. (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) Upon receipt by Redeveloper of the Authority's written statement of the Excess
Amount as defined in Section 3 A( e) of the Agreement, one-half of such Excess Amount will be
deemed to constitute, and will be applied to, prepayment of the principal amount of this Note.
Such deemed prepayment is effective as of the Calculation Date as defined in Section 3A(e) of
the Agreement, and will be recorded by the Registrar in its records for the Note. Upon request of
the Owner, the Authority will deliver to the Owner a statement of the outstanding principal
balance of the Note after application of the deemed prepayment under this paragraph.
6. Nature of Obligation. This Note is one of an issue in the total principal amount of
$ 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 the Resolution, and pursuant to and in full conformity
with the Constitution and laws of the State of Minnesota, including Minnesota Statutes, Sections
469.174 to 469.179. This Note is a limited obligation of the Authority which is payable solely
from the revenues 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 Milmesota, nor any political subdivision thereof shall be obligated to pay the principal of or
interest on this Note or other costs incident hereto except from and to the extent of the revenues
pledged hereto, and neither the full faith and credit nor the taxing power of the State of
336985vlO sm CL205.42
B-3
Minnesota or any political subdivision thereof is pledged to the payment of the principal of or
interest on this Note or other costs incident hereto.
7. 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 fmth
therein, this Note is transferable upon the books of the Authority kept for that purpose at the
principal office of the City Chief Financial Officer, 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 Authority, duly executed by the Owner. Upon such
transfer 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 unless the Authority has been provided
with an opinion of counselor a celtificate 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 fmID, time and manner as so required.
IN WITNESS WHEREOF, the Board of Commissioners of the Columbia Heights
Economic Development Authority have caused this Note to be executed with the manual
signatures of its President and Executive Director, all as of the Date of Original Issue specified
above.
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY
Executive Director
President
REGISTRATION PROVISIONS
The ownership of the unpaid balance of the within Note is registered in the bond register
of the City Chief Financial Officer, in the name of the person last listed below.
336985vlO S18 CL205-42
8-4
Date of
Registration
Registered Owner _
Signature of
City Chief Financial Officer
Grand Central Commons LLC
Federal Tax LD. No.
Section 3.
Terms. Execution and Delivery.
3.01. Denomination. Payment. The Note shall be issued as a single typewritten note
numbered R-1.
The Note shall be issuable only in fully registered form. Principal of and interest on the
Note shall be payable by check or draft issued by the Registrar described herein.
3.02. Dates: Interest Payment 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. Registration. The Authority hereby appoints the City Chief Financial Officer to
perform the functions 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) Register. 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.
(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 principal amount
and maturity, as requested by the transferor. Notwithstanding the foregoing, the Note shall not
be transfell'ed to any person 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 delivelY 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.
(c) Cancellation. The Note surrendered upon any transfer shall be promptly
cancelled by the Registrar and thereafter disposed of as directed by the Authority.
(d) Improper 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 such Note or separate instrument of transfer is legally authorized. The Registrar shall incur
336985v10 sm CL205.42
B-5
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 ofthe Authority upon such Note to the extent of the
sum or sums so paid.
(f) Taxes. Fees and Charges. For every transfer or exchange of the Note, the
Registrar may impose a charge upon the owner thereof sufficient to reimburse the Registrar for
any tax, fee, or other governmental charge required to be paid with respect to 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 exchange 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 charges of the Registrar in connection therewith; and, in the case
the Note lost, stolen, or destroyed, upon filing with the Registrar of evidence satisfactory to it
that 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 Registrar shall be cancelled by it and evidence of such cancellation 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 in accordance with the Agreement.
Section 4. Security Provisions.
4.01. Pledge. The Authority hereby pledges to the payment of the principal of and
interest on the Note all Available Tax Increment under the terms and as defined in the Note.
Available Tax Increment shall be applied to payment of the principal of and interest on the Note
in accordance with the terms of the form of Note set forth in Section 2 ofthis 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
336985v10 8m CL205-42
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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
inevocably agrees to appropriate to the Bond Fund in each year all Available Tax Increment.
Any Available Tax Increment remaining in the Bond Fund shall be transferred to the Authority's
account for the TIF District upon termination of the Note in accordance with its terms.
4.03. Additional Bonds. If the Authority issues any bonds or notes secured by
Available Tax Increment, such additional bonds or notes are subordinate to the Note in all
respects.
Section 5.
Certification of Proceedings.
5.01. Certification of Proceedings. The officers of the Authority 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.
Section 6.
Agreement.
Effective Date. This resolution shall be effective upon execution of the
Adopted this ~ day of
, ;>,00&,2009.
President
Executive Director
336985vlO SJB CL205-42
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SCHEDULE C
CERTIFICATE OF COMPLETION
The undersigned hereby certifies that Grand Central Commons LLC (the "Redeveloper")
has fully complied with its obligations under Articles III and IV of that document titled
"Contract for Private Redevelopment," dated , ;wg&2009 between the Columbia
Heights Economic Development Authority and the Redeveloper (the "Contract"), with respect to
construction of the Minimum Improvements in accordance with the Conshuction Plans, and that
the Redeveloper is released and forever discharged from its obligations to construct the
Minimum Improvements under Al1icles III and IV.
Dated:
,20 .
COLUMBIA HEIGHTS ECONOMIC
DEVELOPMENT AUTHORITY
By
Its Executive Director
STATE OF MINNESOTA )
) ss.
COUNTYOFANOKA )
On this day of ,20_, before me, a Notary Public within and for said
County, personally appeared , to me personally known, who, being
by me duly sworn, did say that (s)he is the President of the Authority named in the foregoing
instrument; that the seal affixed to said instmment is the seal of said Authority; that said
instmment was signed and sealed in behalf of said Authority by authority of its governing body;
and said acknowledged said instrument to be the free act and deed of said
Authority.
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF ANOKA )
On this _ day of ,20_, before me, a Notary Public within and for said
County, personally appeared , to me personally known, who, being
by me duly sworn, did say that (s)he is the Executive Director of the Authority named in the
foregoing instrument; that the seal affixed to said instrument is the seal of said Authority; that
336985vlO SJB CL205-42
C-l
said instrument was signed and sealed in behalf of said Authority by authority of its governing
body; and said acknowledged said instrument to be the free act and deed of said
Authority.
Notary Public
336985v10 SJB CL205-42
C-2
SCHEDULE D
INVESTMENT LETTER
To the Columbia Heights Economic Development Authority (Authority)
Attention: Executive Director
Re: $_ Tax Increment Revenue Note, Series 2098B20
The undersigned, as Purchaser of the above captioned Note (Note) pursuant to a
resolution of the Authority adopted on , ;u)(jS2009 (Resolution), hereby
represents to you and to Kennedy & Graven, Chartered, Minneapolis, Minnesota, Bond Counsel,
as follows:
1. We understand and acknowledge that the Note is delivered to the Purchaser as of
this date pursuant to the Resolution and the Contract for Private Redevelopment between the
Authority and Grand Central Commons LLC dated , ;u)(jS2009 (Contract).
2. The Note is payable as to principal and interest solely from Available Tax
Increment as defined in the Note. The Purchaser understands and acknowledges that the
Authority makes no representations or warranties regarding the amount of Available Tax
Increment, or that revenues pledged to the Note will be sufficient to pay the principal and interest
on the Note. Any estimates of Tax Increment prepared by the Authority or its financial advisors
in connection with the TIF District, the Note or the Contract are for the benefit of the Authority,
and are not intended as representations on which the Purchaser may rely.
3. We have sufficient knowledge and experience in financial and business matters,
including purchase and ownership of municipal obligations, to be able to evaluate the risks and
merits of the investment represented by the purchase of the above stated principal amount of the
Note.
4. We acknowledge that no offering statement, prospectus, offering circular or other
comprehensive offering statement containing material infOlmation with respect to the Authority
and the Note has been issued or prepared by the Authority, and that, in due diligence, we have
made our own inquiry and analysis with respect to the Authority, the Note and the security
therefor, and other material factors affecting the security and payment ofthe Note.
5. We acknowledge that we have either been supplied with or have access to
information, including financial statements and other financial information, to which a
reasonable investor would attach significance in making investment decisions, and we have had
the opportunity to ask questions and receive answers from knowledgeable individuals concerning
the Authority, the Note and the security therefor, and that as a reasonable investor we have been
able to make our decision to purchase the above stated principal amount of the Note.
6. We have been informed that the Note (i) is not being registered or otherwise
qualified for sale under the "Blue Sky" laws and regulations of any state, or under federal
336985vlO SJB CL205-42
D-l
securities laws or regulations, (ii) will not be listed on any stock or other securities exchange, and
(iii) will carry no rating from any rating service.
7. We acknowledge that neither the Authority nor Kennedy & Graven, Charted has
made any representations as to the status of interest on the Note for state or federal income tax
purposes.
8. We represent to you that we are purchasing the Note for our own accounts and not
for resale or other distribution thereof, except to the extent otherwise provided in the Note or the
Resolution.
9. All capitalized terms used herein have the meaning provided in the Contract
unless the context clearly requires otherwise.
10. The Purchaser's federal tax identification number is
11. We acknowledge receipt of the Note on the date hereof.
GRAND CENTRAL COMMONS LLC
By
Its
Dated:
, :600&20
336985vl0 SJll CL205-42
D-2
SCHEDULE E
ASSESSMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the day of
;wG&Z009 by and between the and the COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT
AUTHORITY, a Minnesota public body corporate and politic (the "Authority") and GRAND
CENTRAL COMMONS LLC, a Minnesota limited liability company (the "Redeveloper").
WITNESSETH:
WHEREAS, the Authority and the Redeveloper entered that certain agreement entitled
Contract for Private Development dated , ;wG&Z009 (the "Contract"); and
WHEREAS, pursuant to the Contract the Redeveloper is obligated to construct the
Commercial Improvements (as defined in the Contract) upon the property legally described at
Exhibit A hereto (the "Property"); and
WHEREAS, the Authority and the Redeveloper desire to establish a minimum market
value for the Property and Phase I of the Commercial Improvements constructed thereon,
pursuant to Minnesota Statutes, Section 469.177, Subdivision 8; and
WHEREAS, the Assessor for Anoka County (the "Assessor") has reviewed the plans and
specifications for Phase I ofthe Commercial Improvements;
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 Propelty described in
Exhibit A, together with Pllase I of the Commercial Improvements thereon, for ad valorem tax
purposes, shall be $~,000,0004.375.000 as of January 2, 2010 and each January 2 thereafter,
notwithstanding the progress of constmction of the Minimum Improvements by such date.
2. The minimum market value herein established shall be of no further force and
effect and this Agreement shall terminate on the Termination Date (as defined in the Contract).
3. Neither the preambles nor provisions of this Agreement are intended to, nor shall
they be construed as, modifYing the telms of the Contract.
4. This Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the patties.
5. 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.
336985vl0 sm CL205-42
E-l
6. 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.
7. This Agreement may not be amended nor any of its terms modified except by a
writing authorized and executed by all parties hereto.
8. 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.
9. This Agreement shall be construed in accordance with the laws of the State of
Minnesota. Any dispute arising from this Agreement shall be heard in the state or federal courts
of Minnesota, and all parties waive any objection to the jurisdiction thereof, whether based on
convenience or otherwise.
336985v1O SIB CL205-42
E-2
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the day
and year first above written.
THE COLUMBIA HEIGHTS ECONOMIC
DEVELOPMENT AUTHORITY
By:
Its: President
By:
Its: Executive Director
STATE OF MINNESOTA )
) ss.
COUNTY OF ANOKA )
The foregoing instrument was acknowledged before me this _ day of
200_, by and
, the President and Executive Director of the
Columbia Heights Economic Development Authority, a public body corporate and politic under
the laws of the state of Minnesota, on behalf of the Authority.
Notary Public
336985vlO SJB CL205-42
E-3
GRAND CENTRAL COMMONS LLC
By:
Its:
By:
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this _ day of ,
;wggZ009 by and of Grand Central Commons LLC, a
Minnesota limited liability company, on behalf ofthe company.
Notary Public
This document drafted by:
Kelmedy & Graven, Chartered
470 US Bank Plaza
Minneapolis, MN 55402
(612) 337-9300
336985vlO SIB CL205-42
E-4
EXHIBIT A TO ASSESSMENT AGREEMENT
PROPERTY LEGAL DESCRIPTION
Outlot C, Grand Central Lofts, Anoka County, Minnesota
336985vlO sm CL205-42
E-A-l
CERTIFICATION BY COUNTY ASSESSOR
The undersigned, having reviewed the plans and specifications for Phase I of the
Commercial Improvements to be constructed and the market value assigned to the land upon
which such improvements are to be constructed, hereby certifies as follows: The undersigned
Assessor, being legally responsible for the assessment of the above described property, hereby
certifies that the values assigned to the land and specified improvements are reasonable.
County Assessor for the County of Anoka
STATE OF MINNESOTA )
) ss.
COUNTYOFANOKA )
The foregoing instrument was acknowledged before me this _ day of
by , the County Assessor of the
County of Anoka.
Notary Public
336985vl0 sm CL205-42
SCHEDULE F
PRO FORMA
336985v10 SJB CL205-42
F-l
SCHEDULE G
SEWER IMPROVEMENTS
The design and construction of the sewer improvements referenced below:
Date of Plans:
Construction Range:
Engineering Company:
Pipe Contractor Co.:
336985vlO SJB CL20S-42
August 25, 2008
47'11 Ave. to north leg of 51st Ct.
Humphrey Engineering
Michels Pipeline
G-l
SCHEDULE H
OTHER INFRASTRUCTURE
The design and construction of the improvement referenced in the documents referenced below:
Date of CUP Plans:
City Council Approval:
Date of Site Plans:
Planning Commission Approval:
Planning Contract:
336985v1O sm CL205-42
May 5, 2008 (Humphrey Engineering)
June 9, 2008
May 5, 2008 (Humphrey Engineering)
June 3, 2008
September 8, 2008 (approved)
H-I
SCHEDULE I
EASEMENT AND MAINTENANCE AGREEMENT
between
THE CITY OF COLUMBIA HEIGHTS
and
GRAND CENTRAL COMMONS LLC
for construction, maintenance and use of
PARKING RAMP
THIS AGREEMENT, made as of this ~ day of
, 20_, by and between the
CITY OF COLUMBIA HEIGHTS, a Minnesota municipal corporation (hereinafter the "City")
and GRAND CENTRAL COMMONS LLC, a Minnesota limited liability company (hereinafter
the "Redeveloper").
W !IN ES. S.EIH:
WHEREAS, the Columbia Heights Economic Development Authority (the "Authority)
and the Redeveloper have entered into a Contract for Private Redevelopment dated
, 200&2009 (the "Contract"), and
WHEREAS, the capitalized terms used, but not defined, in this Agreement have the
meanings given in the Contract; and
WHEREAS, the Contract is intended to provide for the constmction of the Minimum
Improvements by the Redeveloper on the Commercial Property in coordination with the
Authority and with the cooperation and assistance of the Authority; and
WHEREAS, the Contract provides for the expenditure of public funds for the certain
costs related to the Minimum Improvements to assist in the redevelopment of the Commercial
Property; and
WHEREAS, the Redeveloper has agreed under the Contract to build a Parking Ramp on
the Commercial Property in connection with the Minimum Improvements, and to grant a public
parking easement in favor of the City regarding such Parking Ramp; and
WHEREAS, the Redeveloper has agreed to operate, manage, and maintain the Parking
Ramp pursuant to the Contract; and
336985v10 SJB CL205-42
I-I
WHEREAS, the Authority and the Redeveloper deem it to be in their vital interest and in
the best interest of the Authority, the Authority and the State of Minnesota and in furtherance of
the economic development and redevelopment plan for the Minimum Improvements Area to
enter into this Easement and Maintenance Agreement (hereinafter this "Agreement") with the
Redeveloper with respect to certain lands included within the Minimum Improvements Area on
which the Parking Ramp will be constructed;
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein contained and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
GRANT OF EASEMENT
Section 1.1. Easement Premises - Subject to Section 2.1, the Redeveloper hereby
grants and conveys to the Authority a non-exclusive public parking easement (the "Easement")
over and across those portions of the Commercial Property upon which the Parking Ramp will be
constructed, and in the Parking Ramp, which consists of two levels of parking and all related
access areas depicted as the crosshatched area on Exhibit A, which are situated in the Authority
of Columbia Heights, County of Anoka, State of Minnesota (the "Easement Premises").
Section 1.2. Easement Purpose - The Easement is granted for the purpose of vehicular
parking, vehicular ingress and egress, and parking-related pedestrian traffic over and across the
Easement Premises.
Section 1.3. Releases and Reservations
( a) The Redeveloper reserves in, over, under, above, across and upon the
Easement Premises the right to use the Easement Premises for any and all uses and
pmposes provided that such use does not obstruct or materially interfere with the
intended purpose of the Easement, including without limitation:
(i) the right of support for the Minimum Improvements;
(ii) the right of access for ingress and egress through the Easement
Premises;
(iii) the right to bring utilities, materials, and other facilities through the
Easement Premises;
(v) the right to grant easements in, over, under and across the
Easement Premises for the pmpose of installation, use and operation of
utilities;
(vi) the right to perform all construction, maintenance and repair of the
Parking Ramp and adjoining improvements; and
336985vlO SJ13 CL205-42
1-2
(vii) with prior consent by the City, which consent shall not be
unreasonably withheld, the right to enter into licenses, or leases or other
agreements (collectively, "Commercial Parking Agreements") with
owners or tenants of the Commercial Improvements within the
Commercial Property, providing for use of the Parking Ramp or specified
portions thereof for use by customers of such owners or tenants; provided
that in no event shall Commercial Parking Agreements materially impair
or interfere with use by the general public of the Park Ramp for its
intended purpose.
(b) The Redeveloper must repair any damage to the Parking Ramp caused by
construction of the Minimum Improvements and minimize the extent and duration of any
interference with the easement rights granted herein.
(c) Upon request by the Redeveloper, the City must execute and deliver
instruments to evidence the Redeveloper's reservation of rights under sections (a),
however execution of such instruments is not necessary to effect the reservations in this
Section.
ARTICLE II
TERM
Section 2.1. Term - This Easement will become effective upon Redeveloper's receipt
of a Certificate of Completion for the Parking Ramp in accordance with the Contract. This
Easement will be perpetual.
ARTICLE III
UTILITIES
Section 3.1. Utilitv Charges - The Redeveloper will pay, or cause to be paid, when the
same become due, all charges for water, sewer usage, gas, electricity, power, heat, telephone, or
other communications service and any and all other utility or similar services used, rendered,
supplied, or consumed in, upon, at, from, or in connection with the Easement Premises, or any
part thereof.
ARTICLE IV
TAXES AND ASSESSMENTS
Section 4.1. Pavment of Taxes and Assessments - The Redeveloper must pay, or cause
to be paid, before becoming delinquent, all real estate taxes, charges, assessments, and levies,
assessed and levied by any govermnental taxing authority against the Easement Premises.
Nothing contained in this Agreement requires the Redeveloper to pay any franchise, estate,
inheritance, excise, succession, capital levy, or transfer tax of the City or any income, excess
profits or revenue tax payable by the City under this Agreement. The Redeveloper has the right
and option, at any time but solely at the Redeveloper's expense, to pay any real estate taxes or
336985v10 sm CL205-42
1-3
assessments in installments or under protest or in a similar manner, or to contest the levy or
amount of the same in appropriate legal or administrative proceedings.
ARTICLE V
USE OF EASEMENT PREMISES
Section 5.1. Construction of Parking Ramp - The Developer shall construct the
Parking Ramp in accordance with all terms and conditions of the Agreement.
Section 5.2. Liens - The Redeveloper will not permit any mechanic's or materialmen's
liens to stand against the Easement Premises on account of improvements authorized by the
Redeveloper, provided, however, that the Redeveloper may in good faith and at its expense
contest any such lien in which event such lien may remain undischarged and unsatisfied during
the contest and any appeal, provided the Redeveloper files a bond or deposits cash or other
reasonable security in the amount of such lien with the court or with a mortgagee of the
Easement Premises or with the City to secure the payment of such lien if finally determined to be
valid.
Section 5.3. Legal and Regulatorv Compliance: Control of Premises - The Redeveloper
must operate and maintain the Parking Ramp on the Easement Premises for public use in
accordance with all applicable governmental laws, ordinances, regulations and orders pertaining
to Parking Ramp generally from time to time. Subject only to the express provisions of this
Agreement and the Planning Contract, the Redeveloper will have full authority and control over
the management, operation, and use of the Easement Premises.
Section 5.4. No Fees - The Easement Premises must be open to the public for public
use without charge or fee.
Section 5.5. Hours of Operation. Rules and Regulations - The Redeveloper must
establish reasonable hours of operation, rules, and regulations as it deems advisable, necessary,
or appropriate for the safe, efficient, and orderly use of the Parking Ramp, subject to prior City
approval.
Section 5.6. Contractors - The Redeveloper may engage such employees, agents, or
independent contractors as it may deem advisable to conduct the management, repair,
maintenance, and operation of the Easement Premises from time to time. Redeveloper may
make all decisions and execute all agreements, in its sole discretion, with respect to the Parking
Ramp so long as such decisions and agreements do not violate any provisions in this Agreement
or the Planning Contract.
Section 5.7. No Waste or Damage - Neither the City nor the Redeveloper may
knowingly or willfully commit or suffer to be committed any waste or damage in or upon the
Easement Premises, or any disfigurement or injury to any Parking Ramp. The Redeveloper in its
use and occupancy of the Easement Premises, may not knowingly and willfully commit or suffer
to be committed any act or thing which constitutes a nuisance or interferes with the public use
and enjoyment of the Parking Ramp. Usual and normal wear and tear, damage by the elements,
336985vlO sm CL2Q5-42
1-4
unavoidable casualty or depreciation and diminution over time will not be considered "waste,"
"nuisance," "damage, "disfigurement," or "injury."
ARTICLE VI
INDEMNIFICATION, INSURANCE
Section 6.1. Propertv Insurance - The Redeveloper, at its sole cost and expense, must
keep all Parking Ramp, and all alterations, extensions, and improvements thereto and
replacements thereof, insured against loss or damage by fire and against those casualties covered
by extended coverage insurance and against vandalism and malicious mischief and against such
other risks, of a similar or dissimilar nature, as are customarily covered with respect to buildings
and improvements similar in construction, general location, use, and occupancy to the Parking
Ramp. Such policy of insurance will affirmatively include the full replacement cost measure of
recovery.
Section 6.2. Personal Propertv - All property of every kind and character which the
Redeveloper may keep or store in, at, upon, or about the Easement Premises will be kept and
stored at the sole risk, cost, and expense ofthe Redeveloper.
Section 6.3. Indemnification ofthe City-
(a) The Redeveloper releases and covenants and agrees that the City shall not be
liable for and agree to indenmify and hold harmless the City Patties against any loss or damage
to property or any injury to or death of atlY person occurring at or about or resulting fi'om any
defect in the Parking Ramp constructed by the Redeveloper to the extent not attributable to the
negligence of the City Parties.
(b) Except for negligence of the City Patties, the Redeveloper agrees to indemnify the
City Patties, now and forever, and further agrees to hold the aforesaid harmless from any claims,
demands, suits, costs, expenses (including reasonable attorney's fees), actions or other
proceedings whatsoever by any person or entity whatsoever arising or purportedly arising from
the actions or inactions of the Redeveloper (or if other persons acting on their behalf or under its
direction or control) under this Agreement, or the transactions contemplated hereby or the
acquisition, construction, installation, ownership, and operation of the Minimum Improvements
and Public Infrastructure Improvements constructed by the Redeveloper.
(c) The City in no way waives its right to statutory liability caps under Minnesota
Statutes, Section 466.04, as amended. The Redeveloper's liability to the City equals, but does
not exceed, the City's statutory liability limits under Minnesota Statutes, Section 466.04, as
amended.
(d) This provision will survive termination of this Agreement.
Section 6.4. Liability Insurance - The Redeveloper, and any successor in interest to the
any Redeveloper, shall obtain and continuously maintain insurance on the Parking Ramp and,
from time to time at the request of the Authority, furnish proof to the City that the premiums for
336985v10 SJB CL205-42
1-5
such insurance have been paid and the insurance is in effect. The Redeveloper must procure and
maintain continuously in effect (01' cause the same to occur), policies of insurance of the kind
and minimum amounts as are customarily maintained with respect to Parking Ramp and, to be
reviewed from time to time by the parties, such policies must meet the minimum requirements
set forth in Mitmesota Statutes Section 466.04, and must fmiher include the following:
(a) Insurance against liability for injuries to 01' death of any person 01' damage
to 01' loss of property arising out of or in any way relating to the condition of the Parking
Ramp. Such insurance must provide that the City is an additional insured.
(b) To the extent reasonably available, insurance coverage with respect to the
indenmification expressed in Section 6.3 hereof.
Section 6.5. General Insurance Requirement - All insurance required in this Agreement
must be placed with financially sound and reputable insurers licensed to transact business in the
State of Minnesota. The Redeveloper must furnish to the City policies evidencing all such
insurance 01' a certificate or certificates of the respective insurers stating that such insurance is in
force and effect. Each policy of insurance herein required must contain a provision that the
insurer may not cancel it without giving written notice to the City at least thirty (30) days before
the cancellation becomes effective. All policies 01' celiificates of insurance will be approved
reasonably as to form and content by the City. The insurance coverage herein required may be
provided by a blanket insurance policy or policies.
Section 6.6. No Insurance Obligation of Citv - At no time and under no circumstances
will the City be required to take out, maintain in force and effect, 01' pay for any type of
insurance coverage with reference to the protection of and/or ownership of and/or occupancy of
and/or a suit relating to the Easement Premises and/or any improvements hereafter located
thereon.
ARTICLE VII
ASSIGNMENT, SUBORDINATION
Section 7.1. Assignment bv the City - The City may not assign 01' transfer its interest
under this Agreement without the prior written consent of the Redeveloper.
Section 7.2. Assignment by Redeveloper - The Redeveloper may not assign 01'
otherwise transfer its interest under this Agreement, except (i) to whomever becomes a permitted
assignee of the Redeveloper under the Agreement, (ii) to any lender holding a mortgage on 01'
interest in the Easement Premises, and (iii) assignment of the Redeveloper's maintenance
obligation to extent penuitted in Section 8.2 herein. The City will recognize and accept any
successors 01' assigns of Redeveloper.
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ARTICLE VIII
MAINTENANCE OF THE EASEMENT PREMISES
Section 8.1. Maintenance - The Redeveloper, at its cost and expense, must keep and
maintain all of the Easement Premises in good condition and repair. It is distinctly understood
that the preceding does not require maintenance and/or repair of the Easement Premises and/or
improvements hereinafter erected thereon in perfect condition or is a condition equal to new at
all times, but the Redeveloper must keep and maintain the same in such condition as to
minimize, so far as is practicable, by reasonable care, maintenance, replacement, and repair, the
effects of use, decay, injury, and destruction of the Easement Premises or any part thereof, the
City recognizing that depreciation and diminution by reason of age, use, and environmental
factors is unavoidable and expected. However, notwithstanding anything herein to the contrary,
it shall be the obligation of the Redeveloper to maintain, repair and operate the Parking Ramp in
a condition which is safe, operation and in accordance with all government agreements.
Section 8.2. Assignment of Maintenance Obligations - The Redeveloper may assign its
maintenance obligations under Section 8.1 to a third party, including an association of propelly
owners, provided that (1) such third pally is determined by the City to have financial resources
adequate to fund the Redeveloper's obligations under this Agreement and (1i) such third party
and the City have entered into a signed agreement requiring the third party to be bound by the
terms of this Agreement, in which event the Redeveloper will be released from further liability
with respect to such assigned obligations.
Section 8.3. No Obligation of the Citv to Repair or Maintain - The City will have no
obligation of any kind, expressed or implied, to repair, rebuild, restore, reconstruct, modify, alter,
replace, or maintain the Easement Premises or any pall thereof.
Section 8.4. Entrv bv Citv -The City may, after notice and oppOllwlity to cure, enter
onto the Easement Premises to repair and maintain the Parking Ramp within the Easement
Premises if the City determines, in its sole discretion, that perfOlmance of such repairs and
maintenance is necessary (i) to cure any default hereunder or (ii) to protect public health, welfare
and safety; provided, however, that in case of emergency or failure of Redeveloper to maintain
the Pal'king Ramp sufficiently to protect the public health and safety, the Easement Premises are
subject to entry without notice and at any time, by City or its authorized employees and/or agents
and/or by any public safety personnel to perfOlm such maintenance or repairs as City may deem
necessary in its sole discretion. The City will submit an invoice for the costs incurred for such
maintenance or repairs to the Redeveloper. If the Redeveloper has failed to make payment on
the invoice within 60 days, the City will have the right to assess the costs inculTed by the City to
all or any pOllion of the Minimum Improvements Area as a service charge pursuant to Minnesota
Statutes, Section 429.101, or any successor statute. By execution of this Agreement, the
Redeveloper is agreeing to such an assessment for maintenance and repair costs, agreeing that
the Minimum Improvements Area assessed for such service charges is benefited thereby, and
waiving allY rights the Redeveloper or a third party may have to object to an assessment of such
service charges, including any rights of appeal under Minnesota Statutes, Chapter 429.
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Section 8.5. Destruction - In the event that the Parking Ramp on the Easement
Premises are destroyed by fire or other casualty, and subject to a determination by any lender
holding a mortgage on the Easement Premises, the Redeveloper will rebuild or reconstmct the
Parking Ramp to the extent insurance proceeds are available or, in the event insurance proceeds
are not sufficient to reconstruct the entire Parking Ramp, to the extent insurance proceeds
combined with any contributions by the Redeveloper toward reconstruction are available. If the
Redeveloper rebuilds or reconstructs the Parking Ramp, the proceeds from any and all insurance
policies covering risks against loss or damage must be used to rebuild or reconstruct.
ARTICLE IX
EMINENT DOMAIN
Section 9.1. Condemnation - If the Easement Premises are taken, acquired, or
condemned by eminent domain for any public or quasi-public use or purpose, then the
Redeveloper, at any time within sixty (60) days next after it has actual notice of such proposed
acquisition or condemnation, will have the option to (i) cancel and terminate this Agreement as
of the date of vesting oftitle in the condemning authority ofthe acquired or condemned propelty,
or to (ii) continue this Agreement as to the remaining part of the Easement Premises not so taken
or threatened to be taken. The Redeveloper may exercise one ofthe foregoing options by giving
the City written notice of the exercise thereof within the foregoing sixty (60) days' period, and in
the event Redeveloper fails or refuses, for any reason, so to furnish the City written notice of the
exercise thereof within the time and in the manner herein provided, then this Agreement will
continue in full force and effect under option (ii) above.
ARTICLE X
DEFAULT AND TERMINATION
Section 10.1. Default bv the Citv - If the City fails to perform any of its obligations
under this Agreement, and fails to cure such default after thilty (30) days' written notice of such
default, or, if such default carmot reasonably be cured within such thirty (30) days, fails to
cormnence curative action and thereafter diligently complete the same, then in such case the
Redeveloper may declare the termination of this Agreement and re-enter and take possession of
the Easement Premises. In such case, or at such time as this Agreement is terminated pursuant to
Section 2.1 hereof, the City agrees to execute and deliver to the Redeveloper a written
termination of this Agreement in recordable form, which termination agreement will be filed in
the official records of Anoka County, Minnesota. In addition, the Redeveloper may exercise all
remedies available to it at law or equity.
Section 10.2. Default bv Redeveloper - If the Redeveloper fails to perform any of its
obligations under this Agreement, and fails to cure such default after thirty (30) days' written
notice of such default or, if such default Call1iot reasonably be cured within such thirty (30) days,
fails to commence curative action and thereafter diligently complete the same, then in such case,
the City may cure such default on behalf of the Redeveloper and Redeveloper consents to pay to
the City any and all such sums as are due and owing on account thereof. City will submit a
statement to Redeveloper evidencing the costs incurred to cure such default. If Redeveloper has
336985vl0 SIB CL205-42
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failed to make payment in accordance with the statement within 60 days after receipt thereof,
City will have the right to assess the costs incUll'ed by City to all or any p01iion of the Minimum
Improvements Area as a service charge pursuant to Minnesota Statutes, Section 429.101, or any
successor statute. In addition, the City may exercise all remedies available to it at law or equity.
ARTICLE XI
SURRENDER
Section 11.1. Surrender - Upon any tetmination of this Agreement, the City will
surrender the Easement Premises to the Redeveloper, including without limitation any and all
buildings, improvements, and fixtures then upon the Easement Premises, and all buildings,
improvements, structures, fixtures, alterations, and other additions which may be made or
installed by or at the instance of either party hereto, in, upon, or about the Easement Premises
will become the property of Redeveloper upon any termination and will be surrendered to the
Redeveloper by the City without any payment therefor.
ARTICLE XII
MISCELLANEOUS
Sectionl2.1. Waiver - The waiver by any patiy hereto of any breach or default of any
provisions anywhere contained in this Agreement does not constitute a waiver of any subsequent
breach or default thereof. No provision of this Agreement is waived unless such waiver is in
writing and signed by the patiy charged with any such waiver.
Section 12.2. Amendments - Except as otherwise herein provided, no subsequent
alteration, amendment, change, waiver, discharge, termination, deletion, or addition to this
Agreement will be binding upon either patiy unless in writing and signed by both patiies. The
Redeveloper and the City agree to join in and consent to amendments to this Agreement, to the
extent such amendments are reasonably required by the Redeveloper's lenders; provided,
however, that the Redeveloper and the City will not be required to enter into such amendments if
the amendments do not adequately protect the legitimate interest and security of the Authority or
the City with respect to the Project as defined in the Contract.
Section 12.3. Joinder; Permitted EncumbratlCe - Except for the Consent and
Subordinations attached hereto, if any, this Agreement does not require the joinder or approval of
any other person and each of the patiies respectfully has the full, umestricted and exclusive legal
right and power to enter into this Agreement for the term and upon the provisions herein recited
and for the use and purposes hereinabove set f01ih. This Agreement will constitute a permitted
encumbrance under any loan agreement heretofore or hereafter entered into between the
Redeveloper and any construction or permanent lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as ofthe day and year first above written.
CITY OF COLUMBIA HEIGHTS, a
Mitmesota municipal corporation
By:
Its: Mayo
By:
Its: City Manager
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
GRAND CENTRAL COMMONS LLC, a
Minnesota limited liability company
By:
Its
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STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this _ day of
, 200_, by and , the
and , respectively, of the CITY OF
COLUMBIA HEIGHTS, a Minnesota municipal corporation, on behalf of the corporation.
Notary Public
My Commission Expires]
336985vl0 sm CL205-42
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STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this _ day of
, 200_, by , the of GRAND CENTRAL
COMMONS LLC, a Minnesota limited liability company, on behalf of the company.
Notary Public
My Commission Expires
This Instrument was drafted bv
and when recorded should be returned to:
Kennedy & Graven (SJB)
470 South Sixth Street
Minneapolis, Minnesota 55402
336985vlO SJB CL205-42
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336985vlO SJB CL205-42
EXHIBIT A
DESCRIPTION OF EASEMENT PREMISES
(SEE ATTACHED)
I-A-!
CONSENT AND SUBORDINA nON
The undersigned, , a
, holder of (i) that certain [MOltgage] (the "Mortgage"); and (2)
that certain [Assignment of Leases and Rents] (the "Assigmnent"), hereby consents to the
foregoing Easement and Maintenance Agreement (the "Easement Agreement"), and hereby
subjects and subordinates the Mortgage and the Assignment and all of its right, title and interest
in the Easement Premises to the Easement Agreement.
Nothing in this Consent and Subordination may be construed to impose on the
undersigned any obligation created by the Easement Agreement, unless and until the undersigned
has acquired fee title to property burdened by the Easement Agreement.
r
a
],
By:
Printed Name:
Title:
)
) ss.
)
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of
200_, by , the of
, on behalf of the
, a
(Signature of Person Taking Acknowledgment)
This Instrument was drafted bv
and when recorded should be returned to:
Kennedy & Graven (S18)
470 South Sixth Street
Minneapolis, Mimlesota 55402
336985vl0 sm CL205-42
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