HomeMy WebLinkAbout2016-2756.18EXECUTION COPY
FroTt'l
PRIVATE REDEVELOPMENT
By and Between
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY
MM
HY-VEE, INC.
Dated as of: O'ctober 24, 2016
This document was drafted by:
KENNEDY & GRAVEN, Chailered (MNI)
470 U.S. Bank Plaza
Minneapolis, Minnesota 55402
612) 337-9300
http://www.keiinedy-graveii.coin
4 87056A MN 1 (1205 -65
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EM
PREAMBI.-E ...... -- .... — .................................. --- ............. I
ARTICLE I
Definitions
Section 1.1. Definitions... .................. — .... ...... .......... ........ .........................
ARTICLE 11
Representations and Warranties
Section 2.1. Representations by the Authority ................. — ..... ........................... ......... _5
Section 2.2. Representations and Warranties by the Redeveloper....... .... — ................ - ....... ....... 5
ARTICLE III
Propertv Acquisition, Redevelopment Costs
Section 3.1. Status of Redevelopment Property ........................ - ................ ....... - ..... ........ ........ 7
Section 3.2. Environmental Conditions ................. --- ...... ................ -- .... — ........... ........ 7
Section 3.3 Issuance of Note... ..... ....... - .... — ... ............................ ........... ...... 7
Section 3.4. Business Subsidy ........................... ............. ........................... ..... ............. 8
Section 3.5, Payment of Authority Costs... ............ - ....... ................................ - ......................... 9
ARTICLE IV
Construction of Minimum Improvements
Section 4.1. Construction of Improvernents ................ ............... —.— ... .............. ........ .......... -10
Section 4.2. Construction Plans ....... - ............... .................. -- ............................... - ........... ... 10
Section 4.3. Commencement and Completion of Construction, ............................ ........ .......... I I
Section 4.4, Certificate of Completion . .......... ....... .................................. .......... ............... I I
ARTICLE V
Insurance
Section5.1. Insurance ..... ..... - ........... ... I ........... 11- .................. .......... ......... — .... ...................13
ARTICLE VI
Tax Increment; Taxes
Section 6.1. Right to Collect Delinquent Taxes ........ — ............ ...... ..................................... --j 5,
Section 6.2. Review of Taxes —,, ..... ................................................................. ....... ..... —.15
487056A MNI 0-205-65
ARTICLE VII
Financin
Sectionl7.|. Generally- .—._._~.....—........---..........._._..._..—_—____.~_.l6
ARTICLE VIII
Prohibitions Against Assignment and Transfer; Indemnification
Section G.1. Representation emuz Development ........... —..... ...... .......... ...... .......... --_l7
Section 8.2. Prohibition Against Redeveloper's Transfer of' Property and
Assignment of Agreement .... ........ — ... --- ............... _ ......... ....... ............. l7
ARTICLE IX
Events of Default
Section 9.1. Events 0f Default Defimod— .... ........... ......................... ..... ......... ......... ........... 2O
Sectiwm9.2. Remedies ooDcfauU-- ......................................... — ... ...... ............................. 28
Section 9.3, No Remedy Exoo$ivme— ..... .......... .... — .... ................................ _........ ...... -2l
Secti0,ng.4. No Additional Waiver Implied by One Waiver ........ —_---_—_---......... 21
Section 9.5. Attorney Fees —_— ...................... .................. __................. ...... .................. 21
ARTICLE X
Additional Provisions
Section 1Q.I. Conflict ofInterests; Representatives Not Individually Liable ... ............. ..._,.22
Section1(\2. Emmm ....... .......................... ..... ......... _... --- .... _.22
Section 10.3. Restrictions om Use .......................... ...... .............. ............ — ............................. .'22
Section 10.4, Provisions Not Merged With Deed ... .......... ....... --- ............... .... ... — .............. 22
Section 10i5, TiticemfArt«les and Sections ........ .......... ........................... .......... ... .... ............ 22
Section lA.(. Notices and Demands ......... _—..__._............ _---...... .......... ................... 22
Section10.7. Counterparts ............. ......................... ...... --- ......... ...................................... _23
Section10.S. Recording. .... ......... ........... ... .... .............................. ............ ---......... ....... 23
Section 10.9. Amendment ........... _......... _....................... -~. ...... ......... ......... .................. 23
Section lU.1{\ Authority Approvals ............ ....................................... ................................ ...... 23
7[E ...... ............ ........ ........ __... _ .............. .............. ............... .......................... 24
SIGNATURES... ...... ...... ..^............................... - ..... .......................... -------............... 24
SCHEDULEA Redevelopment y
SC}iETJULEB Authorizing Resolution
SCHEDULE C Certific4tewfCompletion
487056v4 mm/[L2 5-65 .
THIS AGREEMENT, made as of the 24th day of October, 2016, by and between the
Columbia Heights Economic Development Authority, a public body corporate and politic under
the laws of Minnesota (the -Authority"), and Hy-Vee, Inc,, an Iowa corporation (the
Redeveloper").
WITNESSETH:
WHEREAS, the Authority was created pursuant to Minnesota Statutes, Sections 469.090
to 469.1081 (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, Minnesota (the "City"); and
WHEREAS, the Authority has undertaken a program to promote the development and
redevelopment of land which is underutilized within the City, and in this connection created the
Downtown Central Business Redevelopment Project (hereinafter referred to as the "Project") in
an area (hereinafter referred to as the "Project Area") located in the City pursuant to Minnesota
Statutes, Sections 469.001 to 469.047 (the "I.-IRA Act"); and
WHEREAS, pursuant to the Act, the Authority is authorized to undertake certain
activities to prepare such real property for development and redevelopment by private enterprise;
and
WHEREAS, the Redeveloper intends to acquire certain property (the "Redevelopment
Property") in the Prcject Area to develop on that property a grocery facility including restaurant
and additional retail and office space, as further described herein (the "Minimum
Improvements"); and
WHEREAS, the Authority has established the Central Valu Center Tax Increment
Financing District (the "'I"IF District") pursuant to Minnesota Statutes, Sections 469.174 to
469.1799, as amended (the —rlF Act"), made up of property in the Project Area including the
Redevelopment Property, and
WHEREAS, the Authority believes that the development of the Redevelopment Property
pursuant to and in general fulfillment of this Agreement, is in the vital and best interests of the
City, will promote the health, safety, morals, and welfare of its residents, and will be 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:
4870566 MM CL205-65
WI
Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears
fi-orn the context:
Act" means Minnesota Statutes Sections 469.090 to 469.1 O)81, as amended,
Affiliate" reams with respect to any entity (a) any corporation, partnership, limited
liability company or other business entity or person controlling, controlled by or under common
control with the entity, and (b) any successor to such party by merger, acquisition, reorganization
or similar transaction involving all or substantially all of the assets of such party (or such
Affiliate). For the purpose hereof the words "controlling", "'controlled by" and "under common
control with" shall mean, with respect to any corporation, partnership, limited liability company
or other business entity, the ownership of fifty pereent or more of the voting interests in such
entity or possession, directly or indirectly, of the power to direct or cause the direction of
management policies of such entity, whether through ownership of voting securities or by
contract or otherwise,
Agreement" means this Agreernent, as the same may be from time to time modified,
arnended, or supplemented,
Authority" means the Columbia Heights Economic Development Authority,
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 be adopted by the Authority to authorize the issuance of the Note,
Available Tax Increment" has the meaning provided in the Authorizing Resolution.
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 Statutes, Sections 116.J.993 to 116,1.995, as
amended,
City" means the City of Columbia Heights, Minnesota.
Certificate of Completion" means the certification provided to the Redeveloper pursuant
to Section 4.4 of this Agreement,
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487056v4 MN1 C1205-6,5
Construction Plans" means the plans, specifications, drawings and related documents on
the construction work to be performed by the Redeveloper on the Redevelopment Property
which (a) shall be as detailed as tile 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) floor plan for each floor; (4)
cross sections of each (length and width); (5) elevations (all sides); (6) landscape plan; and (7)
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 construction work.
County" means the County of Anoka, Minnesota.
Event of Default" means an action by the Redeveloper listed in Article IX of this
Agreement,
Holder" means the owner of a Mortgage.
11RA Act" means Minnesota Statutes, Sections 469.001 to 469.047, as amended.
Minimum Improvements" means the following activities on the Redevelopment
Property: Renovation (which may include, without limitation, demolition and/or construction of
building addition(s)) of approximately 13,037 square feet of an existing 126,655 square-foot
retail center, for a new grocery store, restaurant and/or additional retail and office use, and
required site improvements,
Note" means a pay-as-you-go Tax Increment Revenue Note, substantially in the form
contained in the Authorizing Resolution, to be delivered by the Authority to the Redeveloper in
accordance with Section 3.3 hereof to reimburse the Redeveloper for Redevelopment Costs,
Parcel" means any parcel of the Redevelopment Property.
Project" means the Authority's Downtown Central Business Redevelopment Project.
Project Area" means the geographic area within the boundaries of the Project.
Redeveloper" means Hy-Vee, Inc., an Iowa corporation, or its permitted successors and
assigns.
Redevelopment Costs" has the meaning provided in Section 3.3(a) hereof,
Redevelopment Plan" means the Redevelopment Plan for the Project,
Redevelopment Property" means the real property described in Schedule A of this
Agreement.
State" means the state o1 Minnesota.
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4870566 MNJ CL205-65
Tax Increment" means that portion of the real property taxes that is paid with respect to
the Redevelopment Property and that is rernitted to the Authority as tax increment pursuant to
the Tax Increment Act.
Tax Increment Act" or "TIF Act" means the Tax Increment Financing Act, Minnesota
Statutes Sections 469. 174 to 469.1 79, as amended.
Tax Increment District" or "I'lF District", means the Central 'Vale Center Tax Increment
Financing District, approved by the City and the Authority on October 24, 2016
Tax Increment Plan" or "'FIF Plan"' means the Tax Increment Financing Plan for the
TIF District approved by the City Council on October 24, 20116, and as it may be amended.
Tax Official"' means any County assessor, County auditor, County or State board of
equalization, the commissioner of revenue of the State, or any State or federal district court, the
tax court ofthe State, or the State Supreme Court.
Termination Date" means the earlier of the following: (a) the date of receipt by the
Authority of the final payn-tent frorn Anoka County of Tax Increments from the Central Valu
Center Tax Increment Financing District, (b) the date when the Note has been fully paid,
defeased or terminated in accordance with its terms; or (c) the date of termination of the Note
and this Agreement by the Authority due to an Event of Default as set forth in Section 9.2 hereof.
Transfer" has the meaning set forth in Section 8.2(a) hereof.
Unavoidable Delays'", rneans delays beyond the reasonable control of the party seeking
to be excused as a result thereof which are the direct result of strikes, other labor troubles,
prolonged adverse weather or acts of God, fire or other casualty to the Minimum Improvements,
litigation commenced by third parties which, by injunction or other similar judicial action,
directly results in delays, or acts of any federal, state or local goverm-nental unit (other than the
Authority or City in exercising their rights under this Agreement), including without limitation
conderrination or threat of condemnation of any portion of the Redevelopment Property, which
directly result in delays. Unavoidable Delays shall not include delays experienced by the
Redeveloper in obtaining perrnits 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, so long as the Construction Plans have been approved in accordance with
Section 4.2 hereof.
The rernainder of this page is intentionally left blank)
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487056v4 MNI CL205-65
IfWW""
Representations and Warranties
Section 2.1. Representations by the_Aqth9dty. (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 I.-IRA Act, the Authority has the power to enter into this Agreement
and carry out its obligations, hereunder.
b) The Authority will use its best efforts to facilitate development of the Minimum
Improvernents, including but not limited to cooperating with the Redeveloper in obtaining
necessary administrative and land use approvals and construction financing pursuant to
Section 7.1 bereof
c) The Authority will issue the Note, subject to all the terms and conditions of this
Agreement.
d) The activities of the Authority are undertaken for the purpose of fostering the
redevelopment of certain real property that is occupied by substandard and obsolete buildings,
which will revitalize this portion of the Project Area, increase tax base, and provide additional
services to City residents,
Section 2.2. Representations and Warranties by the Redeveloper, The Redeveloper
represents and warrants that.
a) The Redeveloper is a corporation, duly incorporated and in good standing under
the laws of the State of Iowa, is not in violation of any provisions of its articles of incorporation
or bylaws, is duly qualified as a foreign corporation and 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 officers.
b) If the conditions precedent to construction occur, the Redeveloper will construct
the Minimum Improvements in accordance with the terms of this, Agreement, the Redevelopment
Plan and all local, state and federal laws and regulations (including, but not limited to,
environmental, zoning, building code and public health laws and regulations).
c) The Redeveloper will use commercially reasonable efforts to secure all pert-nits,
licenses and approvals necessary for construction of the Minimum Improvements.
d) The Redeveloper has received no written notice or other written 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 any environmental law or regulation (other
than those notices or communications of which the Authority is aware), The Redeveloper is
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487056v4 MNI 0-205-05
aware of no facts the existence of which would cause it to be in violation of or give any person a
valid claim under any local, state or federal environmental law, regulation or review procedure.
e) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terns and
conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of
the terns, conditions or provisions of any corporate 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.
f) The proposed development by the Redeveloper hereunder would not occur but for
the tax increment financing assistance being provided by the Authority hereunder.
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4870 56v4 MNI C1.205-65
0. IMBIXfJORUIM
Section 3.1. Status of Redevelopment Property. The Redevelopment Property consists
of the Parcels described in Schedule A, As of the date of this Agreement the Redeveloper has
entered into purchase agreements to acquire all Parcels of the Redevelopment Property. The
Authority has no obligation to acquire the Redevelopment Property,
Section 3.2. Environmental Conditions. (a) The Redeveloper acknowledges that the
Authority makes no representations or warranties as to the condition of the soils or existing
structures on the Redevelopment Property or the fitness of the Redevelopment Property for
construction of the Minimum Improvements or any other purpose for which the Redeveloper
may make use of such property, 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 Redevelopment Property nor imposes any obligation on such parties to participate in any
cleanup of the Redevelopment Property.
c) Without limiting its obligations under Section 83 of this Agreement the
Redeveloper further agrees that it will indemnify, defend, and hold hanuless the Authority, the
City, and their governing body members, officers, and employees, from any claims or actions
arising out of the presence, if any, of hazardous wastes or pollutants existing on or in the
Redevelopment Property (including without limitation any asbestos in any existing building),
unless and to the extent that such hazardous wastes or pollutants are present as a result of the
actions or omissions of the indernnitees. 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. Issuance of Note. (a) GenerallY. The Authority has determined that, in
order to make development of the Minimurn Improvements financially feasible, it is necessary to
reimburse Redeveloper for a portion of the cost of demolition, site preparation, and
environmental remediation. (collectively referred to as "Redevelopment Costs"), related to the
Redevelopment Property, subject to the terms of this Section.
b) Ternis, To reimburse the Redevelopment Costs incurred by Redeveloper, the
Authority shall issue and the Redeveloper shall purchase the Note in the maximum principal
amount of$1,100,000. The Authority shall issue and deliver the Note upon Redeveloper having:
i) delivered to the Authority written evidence satisfactory to the Authority
that Redeveloper has incurred Redevelopment Costs in an amount least equal to the
principal amount of the Note, which evidence must include copies of the paid invoices or
other comparable evidence for costs of allowable Redevelopment Costs;
ii) submitted evidence of internal financing in accordance with Section 7.1;
MM
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487056v4 MCA[ CL205-65
iii) delivered to the Authority an investment letter in a form reasonably
satisfactoryactory to the Authority.
The terms of the Note will be substantially those: set forth in the form of the Note shown
in Schedule B, and the Note will be subject to all terms of the Authorizing Resolution, which is
incorporated herein by reference.
c) Termination o 'i-ight to Note, All conditions for delivery of the Note must be met
by no later than five (5) years after the date of7certification of the TIF District by the County, in
compliance with the so-called five-year rule under Section 469.1763, subd. 3(c) of the TIF Act.
If the conditions for delivery of the Note are not satisfied by the date described in this paragraph,
the City has no further obligations under this Section 3.3.
d) Assigninent of` Nate. The Authority acknowledges that the Redeveloper may
assign the Note to a third party. The Authority consents to such an assignment, conditioned upon
receipt of an investment letter from such third party in a forrn reasonably acceptable to the
Authority.
e) Qual,flcations, The Redeveloper understands and acknowledges that all
Redevelopment Costs must be paid by the Redeveloper and will be reimbursed from Available
Tax Increment pursuant to the terms of the Note. The Authority makes no representations or
warranties regarding the amount of Tax Increment, or that revenues pledged to the Note will be
sufficient to pay the principal and interest on the Note. Any estimates of "Fax 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. Redevelopment Costs exceeding the principal amount of the Note are the
sole responsibility of Redeveloper.
Section 3.4. Business Subsidy. The Redeveloper warrants and represents that the
Redeveloper's investment in the purchase of the Redevelopment Property and in site preparation
equals at least 70% of the County assessor's finalized market value of the Redevelopment
Property for the 2016 assessment year, calculated as follows:
Aggregate cost of acquisition of'Redevelopment Property...,.,,.. $3,850,000
Plus Estimated cost of site preparation,,.... $2,305,000
Less site preparation costs reimbursed by the Authority...,..
E'quals net land and site preparation cost., ... ......
Assessor's finalized market value
of Redevelopment Property (2016)....
487O5Ov4 MM 01,205-65
1,100,000)
5,055,000
S4,200,000
5,055,,O00 (net acquisition and site preparation cost) is 120.36% of $4,200,000
assessor's finalized fair market value of the Redevelopment Property for 2016).
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, The Redeveloper releases and waives any claim against the Authority and its
governing body members, officers, agents, servants and employees thereof arising fn-orn
application of the Business Subsidy Act to this Agreement, including without limitation any
claim that the Authority failed to comply with the Business Subsidy Act with respect to this
Agreerrient.
Section 3.5. Payment of Authority Costs. The Redeveloper agrees that it will pay, within
fifteen (l 5) days after written notice froni the Authority, the reasonable costs of consultants and
attorneys retained by the Authority in connection with the creation of the TIF District and the
negotiation in preparation of this Agreement and other incidental agreements and documents
related to the development contemplated hereunder. The Authority will provide written reports
describing the costs accrued under this Section upon request fi-orn the Redeveloper, but not more
often than intervals of forty-five (45) days. Any amount deposited by the Redeveloper upon
filling its application for tax increment financing with the Authority will be credited to the
Redeveloper's obligation under this Section. Upon termination of this Agreement in accordance
with its terms, the Redeveloper remains obligated Linder this section for costs incurred through
the eff'ective date of termination.
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487056v4 MNI CL205-65
Construction of Minimum Improvements
Section 4,1 , Construction of Improvements, Subject to its acquisition of the
Redevelopment Property, the Redeveloper agrees that it will construct or cause construction of
the Minimum Improvements on the Redevelopment Property in accordance with the approved
Construction Plans and that it will, during the term of this Agreement, during any period while
the Redeveloper retains ownership of any portion of the Minimum Improvements, operate and
maintain, preserve and keep the Minimum Improvements or cause the Minimum Improvements
to be maintained, preserved and kept with the appurtenances and every part and parcel thereof, in
good repair and condition.
Section 4.2. Construction Plans, (a) Before commencing construction of the Minimum
Improvements, the Redeveloper shall submit to the Authority Construction Plans for the
Minimum Improvements. The Construction Plans shall provide for the construction of the
Minimum Improvements and shall be in conformity with this Agreement, the Redevelopment
Plan and all applicable State and local laws and regulations. The Authority will approve the
Construction Plans in writing if (i) the Construction Plans conform to all terms and conditions of
this Agreement; (ii) the Construction 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 Minfinurn Improvements; and (v) no uncured Event of Default on the part
of the Redeveloper has occurred. No approval by the Authority shall relieve the Redeveloper of
the obligation to comply with the terms of this Agreement, applicable federal, state and local
laws, ordinances, rules and regulations, or to construct the Minimum Improvements in
accordance therewith. Except as otherwise set forth herein, no approval by the Authority shall
constitute a waiver of an Event of Default. If approval of the Construction Plans is requested by
the Redeveloper in writing at the time of submission, such Construction Plans shall be deemed
approved unless rejected in writing by the Authority, in whole or in part. Such rejections shall
set forth in detail the reasons therefor based upon the criteria set forth in (i) through (v) above,
and shall be made within ten (10) days after the date of receipt of final plans from the
Redeveloper. If the Authority rejects any Construction Plans in whole or in part, the
Redeveloper shall submit new or corrected Construction Plans within a commercially reasonable
period after written notification to the Redeveloper of the rejection. Tile provisions of this
Section relating to approval, rejection and resubmission of corrected Construction Plans shall
continue to apply until the Construction. Plans have been approved by the Authority. The
Authority's approval shall not be unreasonably withheld. 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,
The Redeveloper hereby waives any and all claims and causes of action whatsoever
resulting from the review of the Construction Plans by the Authority and/or any changes in the
Construction Plans requested by the Authority, except those related to the Authority's obligation
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487056v4 NINI CL-205-65
not to unreasonably withhold approval of such plans. Neither the Authority, the City, nor any
employee or official of the Authority or City shall be responsible in any manner whatsoever for
any defect In the Construction Plans or in any work done pursuant to the Construction Plans,
including changes requested by the Authority.
b) If the Redeveloper desires to make any material change in the Construction Plans
or any component thereof after their approval by the Authority, the Redeveloper shall submit tile
proposed change to the Authority for its apprcoval. For the purpose of this section, the term
material" means changes that are reasonably anticipated by the Redeveloper to increase or
decrease construction costs by $ 1,000,00,0 or more. If the Construction Plans, as modified by the
proposed change, conform to the requirements of this 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
Flans 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
unreasonably withheld.
Section 4.3. Commencement and Completion of Construction. (a) Subject to
Unavoidable Delays, the Redeveloper shall commence construction of the Minimum
Irnproven,ients by June 1, 2018. Subject to Unavoidable Delays, the Redeveloper shall complete
the construction of the Minimurn Improvements by July 1, 2019. , All work with respect to the
Minimum Improvements to be constructed or provided by the Redeveloper oil tile
Redevelopment Property shall be in conformity with the Construction Plans as submitted by the
Redeveloper and approved by the Authority, subject to non-material changes not subject to
review and approval by the Authority.
b) The Redeveloper agrees for itself, its successors, and assigns, and every successor in
interest to the Redevelopment Property, or any part thereof, that the Redeveloper, and such
successors and assigns, shall promptly begin and diligently prosecute to completion the
development of the Redevelopment 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, After the date of
this Agreement and until issuance of the Certificate of Completion, the Redeveloper shall make
reports, in such detail and at such times as may reasonably be requested by the Authority, but no
more frequently than monthly, as to the actual progress of the Redeveloper with respect to such.
construction.
Section 4.4. Certificate of Completion. (a) Promptly after completion of the Minimum
Improvements in accordance with those provisions, of the Agreement relating solely to the
obligations of the Redeveloper to construct the Minimum Improvements (including the dates for
beginning, and completion thereof), the Authority Representative shall deliver to the Redeveloper
a Certificate in substantially the fon-n shown as Schedule C, in recordable forill and executed by
the Authority. Such certification by the Authority shall be a conclusive deternlination of the
satisfaction and termination of the agreements, covenants and conditions of Articles III and IV of
487056v4 MNI CL205-65
this Agreement related to construction of the Minimum Improvements and the dates of
commencement and completion thereof.
b) If the Authority Representative shall refuse or fail to provide any certification in
accordance with the provisions of this Section 4.4 of this Agreement, the Authority
Representative shall, within twenty (20) days after receipt of a 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 reasonable opinion of the Authority, for the Redeveloper to take or perform
in order for the Authority to issue the Certificate of Completion. If the Authority fails to provide
such a written statement within twenty (20) days after receipt of such written request, the
Authority shall be deemed to have waived its right to do so and shall be deemed to have issued a
Certificate of Completion to the Redeveloper.
c) The construction of the Minimum. Improvements shall be deemed to be
substantially complete upon issuance of a certificate of occupancy for the Minimum
Improvements, and upon determination by the Authority Representative that all related site
improvements on the Redevelopment Property have been substantially completed in accordance
with approved Construction Plans, subject to landscaping that cannot be completed until seasonal
conditions permit.
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12
487056A MNJ ('1-205-65
ARTICLE V
Section 5.1. Insurance. (a) The Redeveloper will provide and maintain at all times
during the process of constructing the Minimum Improvements a Special Forin Basis insurance
Policy and, froin time to time during that period, at the request of the Authority but no more
frequently than annually, furnish the Authority with proof of payment of premiums on policies
covering the following:
1) Builder's risk insurance, written oil the so-,called "Builder's Risk --
Completed Value Basis," in an amount equal to 100% of the principal amount of the
Note, and with coverage available in reporting form on the so-called "special" form of
policy;
ii) Comprehensive general liability insurance (including operations,
contingent liability, operations of subcontractors, completed operations, and contractual
liability insurance) with lirmts against bodily injury and property damage of not less than
1,0,00,000 for each occurrence (to accomplish the above-required limits, all umbrella
excess liability policy ri-my be used), and
iii) Workers' compensation insurance, with statutory coverage, provided that
the Redeveloper may be self-insured with respect to all or any part of its liability for
workers' compensation.
b) Upon completion of construction of the Minimum Improvements and prior to the
Termination Date, the Redeveloper shall ri-taintain, or cause to be maintained, at its cost and
expense, and frorn, time to time at the request of the Authority, but no more frequently than
annually, shall furnish proof of the payment of premiums on, insurance as follows-,
i) Insurance against loss and/or damage to the Minirnurn Improvements
under a policy or policies covering such risks as are ordinarily insured against by similar
businesses.
ii) Comprehensive general public liability insurance, Including personal
injury liability, against liability for injuries to persons and/or property, in the rninimurn
amount for each occurrence and for each year of $ 1,000,000.
iii) Workers' compensation insurance with statutory coverage.
c) All insurance required in Article V of this Agreement shall be taken out and
maintained in responsible insurance companies selected by the Redeveloper that are authorized
under the laws of the State to assume the risks covered thereby. Upon request, the Redeveloper
will deposit annually with the Authority a certificate or certificates of insurance stating that such
insurance is in force and effect. In lieu of separate policies, the Redeveloper may maintain a
13
487056v4 MNI C'1205-65
single policy, blanket or umbrella policies, or a cornbination thereof, having the coverage
required herein, in which event the Redeveloper shall deposit with the Authority a certificate or
certificates of the respective insurers as tca the amount of coverage in force upon the MirumUrn
Improvements,
d) The Redeveloper agrees to notify the Authority immediately in the case of
damage exceeding $250,000 in amount to, or destruction of, the Minimum Improvernents 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
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 of the costs thereof.
The Redeveloper shall complete the repair, reconstruction and restoration of the
Minimurn Improvements, regardless of whether 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, construction, and restoration shall be the property of the
Redeveloper.
e) Notwithstanding the foregoing, in lieu of its obligation to reconstruct the
Minimum. Improvements as set forth in this Section, the Redeveloper shall have the option of.
i) paying to the Authority an amount that, in the opinion of the Authority and its fiscal
consultant, is sufficient to pay or redeem the outstanding principal and accrued interest on the
Note, or (ii) so long as the Redeveloper is the owner of the Note, waiving its right to receive
subsequent payments under the Note.
0 The Redeveloper and the Authority agree that all of the insurance provisions set
forth in this Article 'V shall ten-ninate upon the Termination Date of this Age-eernent.
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14
487056A MNI CL205-65
F-WRYWRAW
Fax 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 development through
reimbursement of Redevelopment Costs. The Redeveloper understands that the Tax Increments
pledged to payment on the Note are derived from real estate taxes on the Redevelopment
Property, which taxes must be promptly and timely paid. To that end, the Redeveloper agrees
for itself, its successors and assigns, that in addition to the obligation pursuant to statute to pay
real estate taxes, it is also obligated by reason of this Agreement to pay before delinquency all
real estate taxes assessed against the Redevelopment Property and the Minimum Improvements.
The Redeveloper acknowledges that this obligation creates a contractual right on behalf of the
Authority to sue the 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 in which the Authority prevails, the Authority shall also be entitled to
recover its reasonable out-of-pocket costs, expenses and reasonable attorney fees.
Section 6.2, Review of Taxes. (a) The Redeveloper agrees that prior to the Termination
Date, it will not cause a reduction in the real estate taxes paid in respect of the Redevelopment
Property through: (A) willful destruction of any part of the Redevelopment Property; or (B)
willful refusal to reconstruct damaged or destroyed property pursuant to Section 5.1 of this
Agreement, except as provided in Section 5.1(e). The Redeveloper also agrees, that it will not,
prior to the Termination Date, seek exemption from real estate tax for the Redevelopment
Property or any portion thereof or transfer or permit the transfer of the Redevelopment Property
to any entity that is exempt from real estate taxes under state law (other than any portion thereof
dedicated or conveyed to the City in accordance with platting of the Redevelopment Property),
or apply for a deferral of real estate taxes on the Redevelopment Property pursuant to any law.
b) Notwithstanding anything to the contrary in this Article VI, the Redeveloper shall
have the right, subject to all applicable laws (including payment of such real estate taxes during
any applicable appeal period) to contest the legality, validity, or arriount of the real estate taxes
levied against the Minimum Improvements and/or the Redevelopment Property. The
Redeveloper shall notify the Authority of any such contest within thirty (30) days of the
commencement of such contest. During the pendency of any such contest, the Authority shall
suspend payments of all principal and interest derived from Available Tax Increment attributable
to the contested period and payable to the Redeveloper under the Note.
c) Upon final determination of any contest resulting in a finding that the assessed
value of the Redevelopment Property is unchanged, the Redeveloper shall promptly pay and
discharge the amounts involved or affected by such determination, together with any penalties,
fines, interest, costs, and expenses that may have accrued thereon, and the Authority shall
promptly pay to the Redeveloper all principal and interest withheld under the Note, without
penalty or interest. If, as a result of such contest, the assessed value of the Redevelopment
Property is reduced, the Authority shall remit to the County any amounts of Available Tax
15
487056N14 M N I CL205-65
Increment determined to exceed the amount due based oil the reduced real estate taxes payable
by the Redeveloper, and shall promptly pay to the Redeveloper all principal and interest withheld
under the Note, less such Available Tax Increment remitted to the County.
d) The Redeveloper understands that a reduction in the amount of real estate taxes
determined to be payable with respect to the RedeVelOPITIent property will reduce the amount of
Available Tax Increment available to pay principal and interest on the Note, and further
understands that the Note is a limited obligation of the Authority payable solely from Available
Tax Increment, such that reductions in Available Tax Increment may adversely affect the
Authority's ability to fully pay all principal and interest under the Note.
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16
4870560 MN I CL205-65
ARTICLE VII
Other Fiaancing
Section 7.1. Internal Financj!y,. The Redeveloper intends to finance the acquisition of
the Redevelopment Property and construction of the Minimum Improvements internally, and
shall provide the Authority with an affidavit or other instrument reasonably acceptable to the
Authority, certifying as to the sufficiency of Redeveloper funds to acquire the Redevelopment
Property and to construct the Minimum Improvements thereon- provided, however, that the
Authority shall not be entitled to receive a copy of Redeveloper's audited financial statements.
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17
487056N,4 MNI CL205-65
ARTICLE Vill
Prohibitions Ap-ainst Assi2nment and Transfer- I111demnificationI -1
Section 8. 1 . Representation as to Developmeat. The Redeveloper represents and agrees
that its purchase of the Redevelopment Property, and its other undertakings pursuant to the
Agreement, are, and will be used, for the purpose of development of the Redevelopment
Property and not for speculation in land holding.
Section 8.2. Prohibition AgLainst Redeveloper's Transfer ofPr2perty and Assignment of
Ag6reement. The Redeveloper represents and agrees that prior to issuance of a Certificate of
Completion for all ofthe Minimum Improvements:
a) Except only by way of security for, and only for, the purpose of obtaining
financing necessary to enable the Redeveloper or any successor in interest to the Redevelopment
Property, or any part thereof, to perform its obligations with respect to undertaking the
redevelopment contemplated under this Agreement, and any other purpose authorized by this
Agreement, the Redeveloper has not made or created and will not make or create or suffer to be
made or created any total or partial sale, assignment, conveyance, or lease, or any trust or power,
or transfer in any other mode or form of or with respect to this Agreement or the Redevelopment
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 whether or not related in any way to the Redeveloper (collectively,
a "Transfer' "), without the prior written approval of the Authority (whose approval will not be
unreasonably withheld, subject to the standards described in paragraph (b) of this Section) unless
the Redeveloper remains liable and bound by this Redevelopment Agreement in which event the
Authority's approval is not required. Any such Transfer shall be subject to the provisions of this
Agreement. For the purposes of this Agreement, the term Transfer does not include
1) acquisition of a controlling interest in Redeveloper by another entity or merger of
Redeveloper with another entity; (ii) any sale, conveyance, or transfer in any form to any
Affiliate; or (iii) any license or lease of all or any portion of the Minimum Improvements to a
tenant.
b) In the event that prior to the Tenlaination Date, the Redeveloper, upon Transfer of
the Redevelopment Property or any portion thereof, seeks to be released from its obligations
under this Redevelopment Agreement as to the portions of the Redevelopment Property that is
transferred, the Authority shall be entitled to require, except as otherwise provided in the
Agreement, as conditions to any such release 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 Redevelopment Property to be transferred.
ii) Any proposed transferee, by instrument in writing satisfactory to the
Authority and in forril recordable in the public land records of Anoka County, Minnesota,
18
4870 6v4 MNI ("1205-65
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 portion of the Redevelopment Property to be transferred and agreed
to be subject to all the conditions and restrictions to which the Redeveloper is subject as
to such portion; provided, however, that the fact that any transferee of, or any other
successor in interest whatsoever to, the Redevelopment Property, or any part thereof,
shall not, for whatever reason, 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
with respect to the Redevelopment 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 pennitted 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
Redevelopment Property or any part thereof, or any interest therein, however
consurnmated 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
Redevelopment Property 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 Redevelopment Property, from any of its obligations with respect
thereto.
111) Any and a.11 instruments and other legal documents involved in effecting
the transfer of any interest in this Agreement or the Redevelopment Property governed by
this Article VIII, shall be in a form reasonably satisfactory to the Authority.
iv) At the written request of Redeveloper, the Authority shall execute and
deliver to Redeveloper and the proposed transferee an estoppel certificate containing
commercially customary and reasonable certifications.
In the event the foregoing conditions are satisfied then the Redeveloper shall be released from its
obligation under this Agreement, as to the portion of the Redevelopment Property that is
transferred, assigned, or otherwise conveyed.
Section 8.3. Release and Indemnification Covenants. (a) Except for any willful
misrepresentation or any willful or wanton misconduct or negligence of the Indeninified Parties
as hereinafter defined, and except for any breach by any of the Indernnified Parties of their
obligations under this Agreement, the Redeveloper releases from and covenants and agrees that
the Authority, the City, and the governing body members, officers, agents, servants, and
employees thereof (the "Indemnified Parties") shall not be liable for and agrees to indemnify and
hold harmless the Indemnified Parties against any loss or darnage to property or any iqJury to or
death of any person occurring at or about or resulting from any defect in the Redevelopment
Property or the Minimum Improvements,
19
487056v4 MNI (1-205-65
b) Except for any willful misrepresentation or any willfijl or wanton misconduct or
negligence of the Indernnified Parties, and except for any breach by any of the Indemnified
parties of their obligations tinder this Agreement (including without limitation any failure by the
Authority to perform any procedure required under law in connection with establishment of the
TIF District), the Redeveloper agrees to protect and defend the Indemnified Parties, now and
forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit, action,
or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising
frorn this Agreetrient, or the transactions contemplated hereby or the acquisition, construction,
installation, ownership, maintenance, and operation of the Redeveloptnent Property.
e) Except for any willful misrepresentation or any willful or wanton misconduct or
negligence of the Indemnified Parties as hereinafter defined, and except for any breach by any of
the Indemnified Parties of their obligations under this Agreement, the Indemnified Parties shall
not be liable for any damage or injury to the persons or property of the Redeveloper or its
officers, agents, servants, or employees or any other person who may be about the
Redevelopment Property or Miniinum Improvements.
d) All covenants, stipulations, prounises, agreements and obligations of the Authority
contained herein shall be deemed to be the covenants, stipulations, prontises, agreements, and
obligations of such entity and not of any governing body member, officer, agent, servant, or
employee of such entities in the individual capacity thereof.
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20
487(,)56v4 MNI C1.205-65
Events of Default
Section 9.1. Events of Default Defined. The following shall be "I..,vents of Default"
under this Agreement and the term "Event of Default" shall mean, whenever it is used in this
Agreement, any one or more of the following events, after the non-defaulting party provides
thirty (30) days written notice to the defaulting party of the event, but only if the event has not
been cured within said thirty (3,0) days or, if the event is by its nature incurable within thirty (30)
days, the defaulting party does not, within such. thirty-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 Authority to observe or perforin any covenant,
condition, obligation, or agreement on its part to be observed or perfon-ned under this
Agreement.
b) If, before issuance of the certificate of completion for all the Minimum
Improvements, the Redeveloper shall
i) file 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, which action is not
dismissed within sixty (60) days after filing; or
01'
ii) make an assignment for benefit of its creditors; or
iii) adrnit in writing its inability to pay its debts generally as they become due,
iv) be adjudicated a bankrupt or insolvent,
Section 9.2. Remedies on Default. Whenever any Event of Default referred to in
Section 9.1 of this Agreement occurs, the non-defaulting party may:
a) Suspend its performance under this Agreement until it receives assurances that the
defaulting party will cure its default and continue its performance under the Agreement,
b) Upon a default by the Redeveloper under this Agreement, the Authority may
terminate the Note and this Agreement.
c) Take whatever action, including legal, equitable, or 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
21
4870560 MNI CL205-65
Agreement, provided that nothing contained herein shall give the Authority the right to seek
specific performance by Redeveloper of the construction of the Minirrium Improvements,
Section 9.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to any
party is intended to be exclusive of any other available remedy or remedies, but each and every,
such remedy shall be cun-iulative and shall be in addition to every other rcrnedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right and power may be exercised frorn
time to time and as often as may be deemed expedient. 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 lrxralied lay C rre °+Jaiver. In the event any agreement
contained in this Agreement should be breached by either party and thereafter waived by the
other party, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent, previous or subsequent breach hereunder.
Section 9.5. Attorney Fees. Whenever any Event of Default occurs and if the non-
defaulting party employs attorneys or incurs 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 defaulting party under this Agreement, the defaulting party shall,
within ten (10) days of written demand by the non-defaulting party, pay to the non-defaulting
party the reasonable fees of such attorneys and such other expenses so incurred by the non-
defaulting party,
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22
487056A MNI C1205-65
Additional P'rovisions
Section 10.1. Conflict of Interests, 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 that affects his personal interests or the interests of any
corporation, partnership, or association in which he, directly or indirectly, is interested. No,
member, official, or employee of the City or 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 for any amount that may become due to the Redeveloper or successor or on any obligations
under the ternis 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 103, Restrictions on Use. The Redeveloper agrees that until the Ten-nination
Date, the Redeveloper, and such successors and assigns, shall devote the Redevelopment
Property to the operation of the Minimum Improvements as described in Section 4.1 hereof, 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 Redevelopment Property or any improvements erected
or to be erected thereon, or any part thereof.
Section 10A. Provisions Not Merged With Deed. None of the provisions of this
Agreement are intended to or shall be inerged by reason of any deed transferring any interest in
the Redevelopment Property and any such deed shall not be deerned 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 cornmuni cation under the Agreement by either party to
the other shall be sufficiently given or delivered, effective upon actual delivery, if it is dispatched
by registered or certified i-nail, postage prepaid, return receipt requested; sent by nationally
recognized overnight courier service; or delivered personally; in each case to tile following
addresses (or to such other addresses as either party may notify the other):
23
4870566 MNI CL205-65
To Redeveloper: fly-Vee, Inc.
Attn: Legal Department
5820 Westown Parkway
West Des Moines, Iowa 50266
To Authority: Columbia Heights Economic Development Authority
Attn: Executive Director
590 40'h Avenue NE
Columbia Heights, Minnesota 55421-3835
Section 10.7. Counterparts. This Agreement may be executed in any number of'
counterparts, 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. The Redeveloper's obligations under this Agreement are covenants running, with the
land for the teem of this Agreement, enforceable by the Authority against the Redeveloper, its
successor and assigns, and every successor in interest to the Redevelopment Property, or any Part
thereof or any interest therein.
Section 1 O,9 Amendment. This Agreement may be amended only by written agreement
signed by the Authority and the Redeveloper,
Section 10.10. Authority Approval . Unless otherwise specified, any approval required
by the Authority under this Agreement may be given by the Authority Representative, except
that final approval Of issuance ol' the Note shall be made by the Authority's board of
commissioners.
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24
4870566 MN I CL205-,65
IN WITNESS WHEREOF, the Authority and Redeveloper have caused this Agreement
to be duly executed by their duly authorized representatives as of the date first above written,
AUTHORITY:
UDIVA X RL#j M
M
Its President
By
Its Executive Director
STATE OF MINNESOTA
SS.
COUNTY OF ANOKA
The foregoing instrument was acknowledged before me this 25j34 day of
2016 by Gary Peterson and Walter Fehst, the President and Executive Director of the Columbia
Heights Economic Development Authority, on behalf of the Authority.
25
487056v4 MNJ CL205-65
liblay-01
By
J'Offf-e'yA4r'key, Senior Vice President
1-LAt-1,.
Nat an Allen, Assistant Secretary
STATE OF IOWA
SS.
COUNTY OF POLK
The foregoing instrument was acknowledged before me this day ofl-L. "c y,
2016, by Jeffrey Markey and Nathan Allen, the Senior Vice President and Assistant Secretary,
respectively, of Hy-Vee, Inc., an Iowa corporation, on behalf of the corporation,
12
4870566 MNI C'1-205-65
otary Public
SCHEDULE A
REDEVELOPMENT PROPERTY
Lots One (1), Two (2), Three (3), Four (4), Five (5), Six (6), Seven (7), Eight (8), Nine (9),"ren
10), Eleven (11), and Twelve (12), Block One ( 1), and the East 107.3 feet of Lots One (1), Two
2), Three (3), Four (4), Five (5), and Six (6), Block Two (2),
All in !Rjeate rr n of Block "A", Columbia Heights Annex to Miqqca lus, according to the
recorded plat thereof on file in the office of the Registrar of Deeds in and for Anoka County,
Minnesota, together with that part of vacated Jackson Street on said plat described as follows:
Commencing at a point 10 feet North of the Southeast corner of said Lot 6, Block 2; thence
North a distance of 590 feet, more or less, to the Northeast comer of said Lot 1, Block 2; thence
East a distance of 30 feet, rnore or less, to the Northwest comer of said Lot 12, Block 1; thence
South a distance of 590 feet, more or less, to a point 10 feet North of the Southwest corner of
said Lot 7, Block 1: thence West a distance of 30 feet, more or less, to the point of beginning and
there ten-ninating.
A-]
487056v4 MNI ('1205-65
7
AUTHORIZING RESOLUTION
X63 RIMI OEM 111t,16"111CISIM941
RESOLUTION AWARDING THE SALE OF, AND
PROVIDING THE FORM, TERMS, COVENANTS AND
DIRECTIONS FOR THE ISSUANCE OF ITS TAX
INCREMENT REVENUE NOTE, SERIES 20'— TO HY-VEE,
INC.
BE ITRESOLVI.?D BY the Board of Commissioners ("Board") of the Columbia Heights
Economic Development Authority, Columbia Heights, Minnesota (the "Authority") as follows:
Section 1. Authorization; Award of Sale.
1.01. Authorization. The Authority and the City of Columbia Heights have heretofore
approved the establishinent of its Central Valu Center Tax Increment Financing District (the
TIF District") within the Downtown Central Business Redevelopi-fient Project (*Project"), and
have adopted a tax increment financing plan for the purpose of financing certain improvenients
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 Tax Increment Revenue Note,
Series 20'— (the "Note") for the purpose of financing certain eligible redevelopment costs of the
Proj ect.
1.02. Approval of Contract-, Issuance, Sate, and Terms of the Note, (a) The Authority
on this date has considered a Contract for Private Redevelopment (the "Agreement") between the
Authority and Hy-Vee, Inc. (the "Owner"). The Authority hereby approves the Agreement and
authorizes the President and Executive Director of the Authority to execute such Agreement in
substantially the form on file with the Authority, subject to modifications that do not alter the
substance of the transaction and are approved by such officials, provided that execution of the
Agreement by such officials is conclusive evidence of their approval. All capitalized terins in
this resolution have the meaning provided in the Agreement unless the context requires
otherwise.
B-1
487056v4 NINI (1,205-65
b) 'I"'he Authority hereby authorizes the President and Executive Director to issue the
Note in accordance with the terrors of the Agreement,
c) The Note shall be issued in the maxii-num aggregate principal amount of $ ]j 00,00O
to fly-Vee, Inc. (the "Owner") in consideration of certain eligible Redevelopment Costs incurred
by the Owner under the Agreement, shall be dated the date of delivery thereof, and shall bear
simple interest at the rate of 5.0%, frorn the date ofissue per arinurn to the earlier of ii'laturity or
prepayment. The Note will be issued in the principal amount of Redevelopment Costs submitted
and approved in accordance with Section 3.3 of the Agreement. The Note is secured by
Available Tax Increment, as further described in the forrn of the Note herein. The Authority
hereby delegates to the Executive Director the deten-nination of the date on which the Note is to
be delivered, in accordance with the Agreement.
Section 2. Forrn of Note, The Note shall be in substantially the following form, with
the blanks, to be properly filled in and the principal arnount adjusted as of the date of issue:
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B-2
4870560 MNI CL-)05-65
No. R-1
UNITED STATE OF AMERICA
STATE OF MINNESOTA
COLJNTY OF HENNEPIN
COLUMBIA I-1EIGHTS ECONOMIC'.. .. DEVELOPMENT AUTHORITY
TAX INCREMENT REVENUE NOTE
SERIES 20___
Date
Rate of Origiijal Issue
5.0% 120
The Columbia Heights Economic Development Authority (the "Authority") for value
received, certifies that it is indebted and hereby promises to pay to Hy-Vee, Inc. or registered
assigns (the "Omfner"), the principal sum of" $ - and to pay interest thereon at the rate
of five percent (5.0%) per annum, solely from the sources and to the extent set forth herein.
Capitalized terms shall have the meanings provided in the Contract for Private Redevelopment
between the Authority and the Owner, dated as of .._........m
2016 (the "Agreement"),
unless the context requires otherwise.
1. Payments. Principal and interest ("Payments") shall be paid on August I of the
first calendar year in which Available Tax Increment has been paid to the Authority by Anoka
County, and on each February I and August I thereafter to and including February I of the
calendar year ten years following the first Payment ("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. Simple interest shall accrue from the date of issue through and
including the first February I Payment Date.
Payments are payable by mail to the address of the Owner or such other address as the
Owner may designate upon thirty (30) days written notice to the Authority. Payments on this
Note are payable in any coin or currency of the United States of At-rierica which, on the Payment
Date, is legal tender for the payi-nent of public and private debts,
2. Interest. Interest at the rate stated herein shall accrue on the unpaid principal,
commencing on the date of original issue. Interest shall be computed on the basis of a year of
360 days consisting of 12 months of 30 days, and charged for actual days principal is unpaid.
3. Available Tax Increment. (a) Payments on this Note are payable on each
Payment Date solely frorn and in the amount of Available Tax Increment, which shall rnean, on
each Payment Date, Ninety percent (90%) of the Tax Increment attributable to the Minimum
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Improvements and Redevelopment Property that is paid to the Authority by Anoka County iri the
six months preceding the Payment Date,
b) 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 file Authority to pay the entire arnount of principal or interest on this Note oil any Payment
Date shall not constitute a default hereunder as long as the Authority pays principal and interest
hereon to the extent of Available Tax Increment, The Authority shall have no obligation to pay
any unpaid balance of principal or accrued interest that may remain after the final February I
Payment,
4. Default, If on any Payment Date there has occurred and is continuing any Event
of Default under the Agreement, the Authority may withhold frorn payments hereunder under all
Available Tax Increment. If the Event of Default is thereafter cured in accordance with the
Agreement, the Available Tax Increment withheld under this Section shall be deferred and paid,
without interest thereon, within thirty (30) days after the Event of Default is cured. If the Event
of Default is not cured in a timely manner, the Authority may ten-ninate this Note by written
notice to the Owner in accordance with the Agreement.
S. Present. 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 tinning of any other regular Payment otherwise
required to be made under this Note.
6. Nature ofDblij)ation, ']'his Note is one of an issue in the total principal amount of
issued to aid in financing certain redevelopment costs and administrative costs of a
Project undertaken by the Authority pursuant to Minnesota Statutes, Sections 469.001 througI
469.047, and is issued pursuant to an authorizing resolution (the "Resolution") duly adopted by
the Authority on 261 , and pursuant to and in full conforrility with the Constitution
and laws of the State of Minnesota, including Minnesota Statutes, Sections 469,174 to 469. 179,
as amended. This Note is a limited obligation of the Authority which is payable solely from
Available Tax Increment pledged to the payment hereof under the Resolution, This Note and the
interest hereon shall not be deemed to constitute a general obligation of the State of Minnesota or
any political subdivision thereof, including, without limitation, the Authority. Neither the State
of Minnesota, nor any political subdivision thereof shall be obligated to pay the principal of or
interest on this Note or other costs incident hereto except out of Available Tax Increment, and
neither the full faith and credit nor the taxing power of the State of Minnesota or any political
subdivision thereof is pledged to the payment of the principal of or interest on this Note or other
costs incident hereto.
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 Finance Director, by the Owner hereof in person or by such Owner's
attorney duly authorized in writing, upon surrender of this Note together with a written
instrument of transfer satisfactory to the Authority, duly executed by the Owner. Upon such
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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, hearing
interest at the sarne rate and maturing on the same dates.
Except as otherwise provided in Section 3.3(d) of the Agreement, this Note shall not be
transferred to any person or entity, unless the Authority has provided written consent to such
transfer.
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.
Executive Director
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COLUMBIA HEIGHTS ECONOMIC
DEVELOPMENT AUTHORITY
President
REGISTRATION PROVISIONS
The ownership of the unpaid balance of the within Note is registered in the bond register
of the City Finance Director, in the name of the person last listed below.
Date of
Registration "Registered Owner
20 Inc.
Federal Tax I.D No. 42-0325638
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487056v4 MNI
Signature, of
City Finance Director
Section 3. Terin. -,-ExecutiQijarid Delivery,
3.01. Denomination P 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, ReiLstration. The Authority hereby appoints the City Finance Director to perform
the functions of registrar, transfer agent and paying agent (the "Registrar"), The effect of'
registration and the rights and duties of the Authority and the Registrar with respect thereto shall
be as follows:
a) Re)-i-ster. 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 transferred to any person other than an affiliate, or other related entity, of the Owner unless
the Authority has been provided with an opinion of counsel or a certificate of the transferor, in a
form satisfactory to the Authority, that such transfer is exerript from registration and prospectus
delivery requirements of federal and applicable state securities laws, The Registrar may close
the books for registration of any transfer after the fifteenth day of the month preceding each
Payment Date and until such Payment Date.
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) Inap-r-oper 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 narne the Note is at any tirne 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
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487056v4 MNI (A-205-65
account of, the principal of and interest oil 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
surn or sums so paid.
f) Laxes, Fees -and Charges, For every transfer or exchange of the Note, the
Registrar may impose a charge upon the owner thereof sufficient to reimburse tile 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
tile 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 narned 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 sarne 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 Agyeernent.
Section 4. Security
4.01. Riedge. The Authority hereby pledges to the payment of the principal of and
interest on the Note all Available Tax, Increment as defined in the Note,
Available Tax Increment shall be applied to payment of the principal of and interest on the Note
in accordance with the terms of the form ofNote 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 oil tile Note. The Authority
irrevocably agrees to appropriate to the Bond Fund on or before each payment Date the
Available Tax Increment in an amount equal to the Paynient then due, or the actual Available
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497056A NINI CL205-65
Tax Increment, whichever is less. Any Available Tax Increment remaining in the Bond Fund
shall be transferred to the Authority's account for the TIF District upon the termination of the
Note in accordance with its terns,
4.03. Additional Obligations. The Authority will issue no other obligations secured in
whole or in part by Available Tax Increment unless such pledge is on a subordinate basis to the
pledge on the Note.
Section 5. Certification of.Proeeedin&s,
5.01. Certification of Proceding. 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 infonriation 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. Effective Date. This resolution shall be effective upon approval.
Adopted by the Board of Commissioners of the Columbia Heights Economic Development
Authority this _ day of 2016,
President
ATTEST
Secretary
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OW91411INSM,
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CERTIFICATE OF COMPLETION
WHEREAS, the Columbia Heights Economic Development Authority (the "Authority")
and HY-VEE, INC. (the "Redeveloper") entered into a certain Contract for Private
Redevelopment dated October 24, 2016 (the "Contract"), and
WHEREAS, the Contract contains certain covenants and restrictions set forth in Articles
III and IV thereof related to completing certain Minimum Improvements; and
WHEREAS, the Redeveloper has performed said covenants and conditions insofar as it is
able in a manner deemed sufficient by the Authority to pern-ift the execution and recording of this
certification;
NOW, THEREFORE, this is to certify that all construction and other physical
improvements related to the Minimurn Improvements specified to be done and made by the
Redeveloper have been completed and the agreements and covenants in Articles Ill and IV of the
Contract have been performed by the Redeveloper, and this Certificate is intended to be a
conclusive determination of the satisfactory termination of the covenants and conditions of
Articles Ill and IV of the Contract related to completion of the Minimum Improvements, but any
other covenants in the Contract shall remain in full force and effect until the Tennination Date
as defined in the Contract).
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Dated: 20 COLUMBIA HEIGHTS ECONOMIC;'
DEVELOPMENT AUTHORITY
0
STATE OF M IN'NESOTA
ss.
COUNTY OF ANN
Authority Representative
The foregoing instrument was acknowledged before me this day of ..................
20_ by _._ - - - -------- --} the of the Colurnbia Heights
Econornic Development Authority, on behalf of the Authority.
Notary Public
This document drafted by:
Kennedy & Graven, Chartered
470 U.S. Bank Plaza
Minneapolis, Minnesota 55402
612,) 337-9300
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