HomeMy WebLinkAbout2000 10-23 EDAP EDA MEETING
City of Brooklyn Center
• October 23, 2000
1. Call to Order
2. Roll Call
3. Approval of Agenda and Consent Agenda
-The following items are considered to be routine by the Economic Development Authority
and will be enacted by one motion. There will be no separate discussion of these items
unless a Commissioner so requests, in which event the item will be removed from the
consent agenda and considered at the end of Commission Consideration Items.
a. Approval of Minutes
- Commissioners not present at meetings will be recorded as abstaining from the vote
on the minutes.
1. Regular Session - October 9, 2000
4. Commission Consideration Item
a. Resolution Approving and Authorizing Execution of A Development Agreement
-This item was tabled at the September 25, 2000, EDA meeting.
-Requested Commission Action:
- Motion to table November 27, 2000, EDA meeting.
b. Resolution Authorizing Purchase Agreement for Lot 1, Block 1, Brooklyn Farm
Subdivision
-Requested Commission Action:
- Motion to adopt resolution.
5. Adjournment
i
EDA Agenda Item No. 3a
MINUTES OF THE PROCEEDINGS OF THE
ECONOMIC DEVELOPMENT AUTHORITY
OF THE CITY OF BROOKLYN CENTER
IN THE COUNTY OF HENNEPIN AND THE
STATE OF MINNESOTA
REGULAR SESSION
OCTOBER 9, 2000
CITY HALL
1. CALL TO ORDER
The Brooklyn Center Economic Development Authority (EDA) met in regular session and was
called to order by President Myrna Kragness at 7:50 p.m.
2. ROLL CALL
President Myrna Kragness, Commissioners Debra Hilstrom, Kay Lasman, Ed Nelson, and Robert
Peppe. Also present: City Manager Michael J. McCauley, Assistant City Manager Jane Chambers,
Public Works Director Diane Spector, City Attorney Charlie LeFevere, and Deputy City Clerk Maria
Rosenbaum.
3. APPROVAL OF AGENDA AND CONSENT AGENDA
A motion by Commissioner Lasman, seconded by Commissioner Hilstrom to approve the agenda
and consent agenda. Motion passed unanimously.
3a. APPROVAL OF MINUTES
A motion by Commissioner Lasman, seconded by Commissioner Hilstrom to approve the September
25, 2000, regular session minutes. Motion passed unanimously.
4. COMMISSION CONSIDERATION ITEMS
4a. RESOLUTION AUTHORIZING SALE OF CERTAIN EDA OWNED
PROPERTY LOCATED AT 66TH AVENUE NORTH AND WILLOW LANE
IN BROOKLYN CENTER MINNESOTA AND CALLING FOR A PUBLIC
HEARING ON THE SALE THEREOF, PURSUANT TO MINNESOTA
STATUTES, SECTION 469.012 SUBDIVISION 7 AND SECTION 469.029
i
• 10/09/00 -1- DRAFT
Executive Director Michael McCauley discussed that this resolution would call for a public hearing
pursuant to State Statute, and authorize the EDA Executive Director to negotiate a purchase
agreement for the sale of the property.
Councilmember Lasman asked about the age group of the persons being interested in purchasing
these townhomes and how many bedrooms they would have. Mr. McCauley responded that these
townhomes would be two bedroom single -level ramblers that would appeal to the age group of 55
to 70 years old, or younger, single persons, and sell for $170,000 and $200,000.
Councilmember Nelson asked about the zoning for the property. Mr. McCauley responded that the
property is zoned for commercial so a Planned Unit Development will be required.
RESOLUTION NO. 2000-18
Commissioner Nelson introduced the following resolution and moved its adoption:
RESOLUTION AUTHORIZING SALE OF CERTAIN EDA OWNED PROPERTY LOCATED AT
66TH AVENUE NORTH AND WILLOW LANE IN BROOKLYN CENTER MINNESOTA AND
CALLING FOR A PUBLIC HEARING ON THE SALE THEREOF, PURSUANT TO
MINNESOTA STATUTES, SECTION 469.012 SUBDIVISION 7 AND SECTION 469.029
The motion for the adoption of the foregoing resolution was duly seconded by Commissioner
Hilstrom. Motion passed unanimously.
4b. 1. RESOLUTION AUTHORIZING THE ECONOMIC DEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF BROOKLYN CENTER
TO APPLY FOR A CONTAMINATION CLEAN -UP GRANT FROM
THE MINNESOTA DEPARTMENT OF TRADE AND ECONOMIC
DEVELOPMENT
2. RESOLUTION AUTHORIZING THE SUBMISSION OF A GRANT
APPLICATION TO THE METROPOLITAN COUNCIL FOR THE
TAX BASE REVITALIZATION ACCOUNT
Mr. McCauley requested that both of these items be under one motion since they relate to the same
issue and discussed the resolutions authorizing the Economic Development Authority to apply for
a contamination clean up grant from the Minnesota Department of Trade and Economic
Development, and the submission of a grant application to the Metropolitan Council for the tax base
revitalization account for Phase III of the Joslyn site clean -up.
10/09/00 -2- DRAFT
•
RESOLUTION NO. 2000-19
•
Commissioner Hilstrom introduced the following resolution and moved its adoption:
RESOLUTION AUTHORIZING THE ECONOMIC DEVELOPMENT AUTHORITY IN AND
FOR THE CITY OF BROOKLYN CENTER TO APPLY FOR A CONTAMINATION CLEAN -UP
GRANT FROM THE MINNESOTA DEPARTMENT OF TRADE AND ECONOMIC
DEVELOPMENT
The motion for the adoption of the foregoing resolution was duly seconded by Commissioner Peppe.
Motion passed unanimously.
RESOLUTION NO. 2000 -20
Commissioner Hilstrom introduced the following resolution and moved its adoption:
RESOLUTION AUTHORIZING THE SUBMISSION OF A GRANT APPLICATION TO THE
METROPOLITAN COUNCIL FOR THE TAX BASE REVITALIZATION ACCOUNT
The motion for the adoption of the foregoing resolution was duly seconded by Commissioner Peppe.
Motion passed unanimously.
5. ADJOURNMENT
A motion by Commissioner Hilstrom, seconded by Commissioner Lasman to adjourn the meeting
at 7:57 p.m. Motion passed unanimously.
President
• 10/09/00 -3- DRAFT
EDA Agenda Item No. 4a
Commissioner introduced the following resolution and
• moved its adoption:
EDA RESOLUTION NO.
RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF A
DEVELOPMENT AGREEMENT
WHEREAS, the Brooklyn Center Economic Development Authority (the
"Authority ") has caused to be prepared a Development Agreement (the "Development Agreement ")
between the Authority and Twin Lakes Business Park, a Minnesota limited liability company (the
"Developer ") a form of which Development Agreement has been presented at this meeting; and
WHEREAS, pursuant to the Development Agreement the Authority has agreed to
provide tax increment assistance from Tax Increment Financing District No. 3 (A Redevelopment
j District) to the Developer to help pay the cost of the acquisition and clearance of certain land
commonly referred to as the Dale Tile Property.
NOW, THEREFORE, BE IT RESOLVED by the Economic Development Authority
in and for the City of Brooklyn Center, Minnesota as follows:
The EDA hereby approves the Development Agreement in substantially the form
• submitted, and the Executive Director and Secretary are hereby authorized and directed to execute
the Development Agreement on behalf of the Authority.
Date President
The motion for the adoption of the foregoing resolution was duly seconded by commissioner
and upon vote being taken thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
�
DEVELOPMENT AGREEMENT
BY AND BETWEEN
BROOKLYN CENTER ECONOMIC DEVELOPMENT AUTHORITY_
AND
TWIN LAKES BUSINESS PARK
This document drafted by:
BRIGGS AND MORGAN (MMD)
Professional Association
2200 West First National Bank
Building
St. Paul, Minnesota 55101
1181397.2
. TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I - DEFINITIONS . . . . . . . . . . . . . . . 3
Section 1.1. Definitions . . . . . . . . . . . . . . 3
ARTICLE II - REPRESENTATIONS AND WARRANTIES 5
Section 2.1. Representations and Warranties of the
Authority . . . . . . . . . . . . . . . . . 5
Section 2.2. Representations and Warranties of the
Developer . . . . . . . . . . . . . . . . . 5
ARTICLE III - PAYMENT OF TAX INCREMENT ASSISTANCE . . . . . . . 7
Section 3.1. Preconditions to Issuance of Tax Increment
Note. . . . . . . . . . . . . . . . . . . 7
Section 3.2. Tax Increment Revenue Note . . . . . . . 7
Section 3.3. Use of Tax Increments . . . . . . . . . . . 8
ARTICLE IV - EVENTS OF DEFAULT . . . . . . . . . . . . . . . . 9
Section 4.1. Events of Default Defined . . . . . . . . . 9
Section 4.2. Remedies on Default . . . . . . . . . . . . 9
Section 4.3. No Remedy Exclusive . . . . . . . . . . . 10
Section 4.4. No Implied Waiver . . . . . . . . . . . . 10
• Section 4.5. Agreement to Pay Attorney's Fees and
Expenses . - 10
Section 4.6. Indemnification of Authority and City . . 11
Section 4.7. Business Subsidy Act. . . . . . . . . . . 11
ARTICLE V - ADDITIONAL PROVISIONS . . . . . . . . . . . . . . 12
Section 5.1. Conflicts of Interest . . . . . . . . . . 12
Section 5.2. Assignment . . . . . . . . . . . . . . . . 12
Section 5.3. Titles of Articles and Sections . . . . . 12
Section 5.4. Notices and Demands . . . . . . . . . . . 12
Section 5.5. Counterparts . . . . . . . . . . . . 13.
Section 5.6. Law Governing . . . . . . . . . . . . . . 13
Section 5.7. Expiration . . . . . . . . . . . . . . 13
Section-5.8. Provisions Surviving Rescission or
Expiration . . . . . . . . . . . . . . . 13
EXHIBIT A - Legal Description of Tax Increment Financing
District No. 03 (A Redevelopment District) . . . . . . . A -1
EXHIBIT B - Legal Description of Development Property . . . . B -1
EXHIBIT C - Form of Tax Increment Note . . . . . . . . . . . C -1
•
1181397.2
DEVELOPMENT AGREEMENT
THIS AGREEMENT, made as of the 26 th day of June, 2000, by
and between the Brooklyn Center Economic Development Authority,
Minnesota (the "Authority "), a body corporate and politic
organized and existing under the laws of the State of Minnesota
and Twin Lakes Business Park, a Minnesota limited liability
company (the "Developer "),
WITNESSETH:
WHEREAS, pursuant to Minnesota Statutes, Sections 469.001 to
469.047 (the "HRA Law "), the Brooklyn Center Housing and
Redevelopment Authority (the "HRA") has hereto formed Housing
Development and Redevelopment Project No. 1 (the "Redevelopment
Project ") and has adopted a redevelopment plan therefor (the
"Redevelopment Plan "); and
WHEREAS, pursuant to Minnesota Statutes, Section 469.091 to
469.1081, the Authority has the powers of a housing and
redevelopment authority under the HRA Law, and has been
authorized by the City Council of the City of Brooklyn Center to
carry out all powers and administer all projects initiated by the
HRA; and
• WHEREAS, pursuant to the provisions of Minnesota Statutes,
Section 469.174 through 469.1791, as amended, (hereinafter the
"Tax Increment Act "), the Authority has created, within the
Redevelopment Project, Tax Increment Financing 03 (A
Redevelopment District) (the "Tax Increment District "), the legal
description of which is attached hereto as Exhibit A, and has
adopted a tax increment financing plan therefor (the "Tax
Increment Plan ") which provides for the use of tax increment
financing in connection with development of certain property
within the Redevelopment Project area; and
WHEREAS, in order to achieve the objectives of the
Redevelopment Plan and particularly to the land in the
Redevelopment Project area available for development by private
enterprise in conformance with the Redevelopment Plan, the
Authority has determined to assist the Developer with certain
acquisition and demolition costs of property commonly referred to
as the Dale Tile Property, which property is located within the
Redevelopment Project area; and
WHEREAS, the Authority believes that the acquisition and
demolition of existing structures on certain property in the
Redevelopment Project area, and fulfillment of this Agreement are
in the best interests of the City of Brooklyn Center, and in
accordance with the public purpose and provisions of the
•
1181397.2
applicable state and local laws and requirements under which it
will be undertaken.
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:
1181397.2 2
• ARTICLE I
DEFINITIONS
Section 1.1. ' All capitalized terms used and
not otherwise defined herein shall have the following meanings
unless a different meaning clearly appears from the context:
Administr E xpenses shall have the meaning given such
term in the Tax Increment Act..
Agreement means this Agreement, as the same may be from time
to time modified, amended or supplemented;
Authority means the Brooklyn Center Economic Development
Authority;
City means the Cit1 of Brooklyn Center, Minnesota;
Contract for Private Devejonmert means the Contract dated
July 24, 19996 between the Authority and Gerald P. Steffens and
Judith A. Steffens, d /b /a Sunlite Properties.
Countv means Hennepin County, Minnesota;
Developer means Twin Lakes Business Park, a Minnesota
. limited liability company, its successors and assigns;
Development Property means certain land located within the
Redevelopment Project area and legally described on Exhibit B
attached hereto;
Fl;crihl Costs, means the costs of the acquisition of the
Development Property, and the demolition of the existing
structures located thereon;
Even pf Default means any of the events described in
Section 4.1;
Final Pavment Date. means August 1, 2004;
Grants means any grants received from the Minnesota
Department of Trade and Economic Development, the Metropolitan
Council or any other federal, state or local agency or entity for
the Eligible Costs;
Net Tax Increme means on any Note Payment Date, the Tax
Increments received and retained by the Authority during the last
6 months less any Tax Increments needed to pay Administrative
Expenses or Pre - Existing Obligations;
• 1181397.2 3
• Note Pavment Date: means February 1 and August 1 of each
year commencing February 1, 2001 through and including August 1,
2004;
Pre- Ex istJ..pg ()_bliaationa means any payments due or to become
due on or prior to the next Note Payment Date on (a) the City's
General Obligation Tax Increment Bonds of 1995 and, (b) the pay -
as- you -go assistance payable by the City or Authority pursuant to
that certain Development Agreement dated February 22, 2000, with
Talisman Brookdale, LLC, and that certain Contract for Private
Development dated July 29, 1996 between the Authority and Gerald
P. Steffens and Judith A. Steffens, d /b /a Sunlit Properties;
State means the State of Minnesota;
Tax Increment ZaL means Minnesota Statutes Sections 469.174
h 6
through 4 9.1791, as amended;
Tax Inc cement lDi c
Di strict . means s n Tax Increment x Finan in
District No. 03 (A Redevelopment District) legally described in
Exhibit A attached hereto and qualified as a redevelopment
district under the Tax Increment Act;
Tax Increment Finan cina Plan means the plan approved for the
Tax Increment Districtp
Tax In(Zrement Note or Note means the tax increment note to
be issued in substantially the form attached hereto as Exhibit C;
Tax I ncrements means the tax increments derived from the Tax
Increment District which have been received and retained the
Authority in accordance with the provisions of Minnesota
Statutes, Section 469.177, or otherwise pursuant to the Tax
Increment Act;
Unavoida Delavq means delays, outside the control of the
party claiming its occurrence, which are the direct result of
strikes, other labor troubles, unusually severe or prolonged bad
weather, acts of God, fire or other casualty to the Project,
litigation commenced by third parties which, by injunction or
other similar judicial action or by the exercise of reasonable
discretion, directly results in delays, or acts of any federal,
state or local governmental unit (other than the Authority or the
City) which directly result in delays.
1181397.2 4
• ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Represent and Warran of the
Authority. The Authority makes the following representations and
warranties:
(1) The Authority is a body corporate and politic of the
State of Minnesota and has the power to enter into this Agreement
and carry out its obligations hereunder.
(2) The Tax Increment District is a "redevelopment
district" within the meaning of Minnesota Statutes, Section
469.174, Subdivision 10 and was created, adopted and approved in
accordance with the terms of the Tax Increment Act.
(3) The development contemplated b�� this Agreement is in
conformance with the objectives set forth in the Redevelopment
Plan.
(4) The Authority proposes, subject to the further
provisions of this Agreement, to'issue the Note and apply Tax
Increments to reimburse the Developer for Eligible Costs as set
forth in Section 3.1 of the Agreement.
. Section 2.2. genresentat and Warra nties o the
Developer The Developer makes the following representations and
warranties:
(1) The Developer is a limited liability company, duly
formed and existing under the laws of the State of Minnesota, is
in good standing and duly authorized to conduct its business in
the State of Minnesota and all other states where its activities
require such authorization, has the power to enter into this
Agreement, and by proper corporate action has authorized the
execution and delivery of this Agreement.
(2) The Developer will acquire the Development Property and
remove the existing structures by December 31, 2000 in accordance
with all local, state and federal laws and regulations
(including, but not limited to, environmental, zoning, energy
conservation, building code and public health laws and
regulations) .
(3) The acquisition and clearance of the Development
Property would not be undertaken by the Developer, and in the
opinion of the Developer would not be economically feasible
within the reasonably foreseeable future, without the assistance
and benefit to the Developer provided for in this Agreement.
1181397.2 5
(4) The Developer will obtain, or cause to be obtained, in
a timely manner, all required permits, licenses and approvals,
and will meet, in a timely manner, all requirements of all
applicable local, state, and federal laws and regulations which
must be obtained or met before the clearance of the Development
Project may be lawfully undertaken.
(5) 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 provision of any
contractual restriction, evidence of indebtedness, agreement or
instrument of whatever nature to which the Developer is now a
party or by which it is bound, or constitutes a default under any
of the foregoing.
(6) The Developer will cooperate fully with the City and
the Authority with respect to any litigation commenced with
respect to the Development Property.
(7) Except to the extent the interests of the Developer and
the City or Authority are adverse, the Developer will cooperate
fully with the City and the Authority in resolution of any
traffic, parking, public nuisance, or public safety problems
which may arise in connection with the Development Property.
•
•
1181397.2 6
• ARTICLE III
PAYMENT OF TAX INCREMENT ASSISTANCE
Section 3.1. Precond to Issua of Tax Increment
Note The Developer will pay the costs of the acquisition of the
Development Property and demolition of the existing structures
located thereon. In order to reimburse the Developer for a
portion of the Eligible Costs, the Authority agrees to provide
tax increment assistance to the Developer on a pay -as- you -go
basis as further set forth in this Agreement. The Authority will
reimburse the Developer for the Eligible Costs by the issuance of
a Tax Increment Note. The principal amount of the Note shall be
the lesser of (a) $1,000,000, or (b) the actual out -of- pocket
costs of the Developer for the Eligible Costs less all Grant
proceeds. The tax increment assistance shall be paid on the
terms and conditions set forth in Section 3.2 below. The
Authority shall issue a Tax Increment Note upon.satisfactica of
the following conditions precedent:
(a) The Developer shall be in material compliance with
all the terms and provisions of this Agreement;
(b) The Developer shall have acquired and demolished
all existing structures on the Development Property; and
(c) The Developer shall have delivered to the
Authority either (a) evidence acceptable to the Authority
that the Developer has incurred the Eligible Costs, or (b)
invoices evidencing payment by the Developer of the Eligible
Costs.
Section 3.2. Tax Increment Revenue Note,.
(1) Upon satisfaction of the conditions in Section 3.1(a),
(b) and (c) hereof, the Authority will reimburse the Developer
for Eligible Costs through the issuance of a Tax Increment
Revenue Note in substantially the form attached to this Agreement
as Exhibit C.
(2) The principal amount of the Note shall be equal to the
amount set forth in 3.1 hereof. The Note shall bear simple, non -
compounded interest at the rate of eight per cent (8.00 %) per
annum from the date of issuance of the Note. Interest shall be
computed on the basis of a 360 day year consisting of twelve (12)
30 -day months.
(3) The Note shall be payable solely from Net Tax
Increments; provided that the amount of Net Tax Increments paid
on the Note on each Note Payment Date shall be the lesser of (a)
100% of Net Tax Increments, or (b) an amount equal to the accrued
• 1181397.2 7
• and unpaid interest on the principal balance of the Note plus
$125,000 to reduce the principal balance of the Note.
(4) The Note shall be a special and limited obligation of
the Authority payable solely from Net Tax Increments and shall
not be a general obligation of the Authority. If, on any Note
Payment Date, the applicable Net Tax Increments pledged for the
payment of the accrued and unpaid interest on the Note are
insufficient for such purposes, the difference shall be carried
forward and shall be paid if and to the extent that on a future
Note Payment Date there are Net Tax Increments in excess of the
amounts needed to pay the accrued interest then due on the Note.
(5) The Authority's obligation to make payments on the Note
on any Note Payment Date shall be conditioned upon the
requirement that (A) there shall not at that time be an Event of
Default that has occurred and is continuing under this Agreement
and (B) this Agreement shall not have been terminated pursuant--to
Section 4.2 (b) .
(6) The Note shall be governed by and payable pursuant to
the additional terms thereof, as set forth in Exhibit C. In the
event of any conflict between the terms of the Note and the terms
of this Section 3.2, the terms of the Note shall govern. The
issuance of the Note pursuant and subject to the terms of this
Agreement are hereby authorized and approved by the Authority.
• Section 3.3. Use of Ta Incr ements. The Authority and the
City shall be free to use the Tax Increments, other than the Net
Tax Increments to which the Developer is entitled pursuant to the
provisions of Section 3.2 hereof, for any other purpose for which
the Tax Increments may lawfully be used pursuant to applicable
provisions of the Minnesota law.
• 1181397.2 8
• ARTICLE IV
EVENTS OF DEFAULT
Section 4.1. Events of De fault 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 any one or more of the following events:
(a) A default in the payments of ad valorem real
property taxes assessed with respect to any portion of the
Development Property;
(b) Failure by the Developer to incur and pay the
Eligible Costs by December 31, 2000;
(c) Subject to Unavoidable Delays, failure of the
-Developer to observe or perform any other covenant,
condition, obligation or agreement on its part to be
observed or performed under this Agreement; or
(d) If the Developer shall
(A) file any petition in bankruptcy or for any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under the
United States Bankruptcy Act of 1978, as amended or
under any similar federal or state law; or
(B) make a general assignment for the benefit of
its creditors; or
(C) admit in writing its inability to pay its
debts generally as they become due; or
(D) be adjudicated as bankrupt or insolvent; or
if a petition or answer proposing the adjudication of
the Developer, as a bankrupt or its reorganization
under any present or future federal bankruptcy act or
any similar federal or state law shall be filed in any
court and such petition or answer shall not be
discharged or denied within sixty (60) days after the
filing thereof; or a receiver, trustee or liquidator of
the Developer, or of the Project, or part thereof,
shall be appointed in any proceeding brought against
the Developer, and shall not be discharged within sixty
(60) days after such appointment, or if the Developer,
shall consent to or acquiesce in such appointment.
Section 4.2. Remedies o Default Whenever any Event of
Default referred to in Section 4.1 occurs and is continuing, the
• Authority may take any one or more of the following actions after
1181397.2 9
the giving of thirty (30) days' written notice to the Developer,
S but only if the Event of Default has not been cured within said
thirty (30) days, or, if said Event of Default cannot reasonably
be cured within the time, the Developer fails to give assurances
reasonably satisfactory to the Authority that the Event of
Default will be cured within a period of time reasonably
acceptable to the Authority, but in any event not to exceed an
additional period of 120 days;
(a) The Authority may suspend its performance under
y y p p der
this Agreement and the Note until it receives assurances
from the Developer, deemed adequate by the Authority, that
the Developer will -cure its default and continue its
performance under this Agreement.
(b) The Authority may cancel terminate the
Agreement and the Note.
(c) The Authority may take any action, which may
appear necessary or desirable to enforce performance and
observance of any obligation, agreement, or covenant of the
Developer under this Agreement.
Section 4.3. No Rem edv Exclusive. No remedy herein
conferred upon or reserved to the Authority is intended to be
exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Agreement or now or hereafter
existing at law or in equity or by statute. No delay or omission
to exercise any right or power accruing upon any default shall
impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient.
Section 4.4. No Imnlied Wa In the event any agreement
reement
contained in this Agreement should be breached by any party and
thereafter waived by any 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 4.5. Agreemen to Pa Attorney's Fees a E xnenses.
Whenever any Event of Default occurs and the Authority or City
shall employ attorneys or incur other expenses for the collection
P Y Y P
of payments due or to become due or for the enforcement or
performance or observance of any obligation or agreement on the
part of the Developer herein contained, the Developer agrees that
it shall, on demand therefor, pay to the Authority or City the
reasonable fees of such attorneys and such other expenses so
incurred by the Authority or City.
• 1181397.2 10
Section 4.6. Indemnification of Authority and City
(1) The Developer releases from and covenants and agrees
that the Authority and the City, their governing body members,
officers, agents, including the independent contractors,
consultants and legal counsel, servants and employees thereof
(hereinafter, for purposes of this Section, collectively the
"Indemnified Parties ") shall not be liable for and agrees to
indemnify and hold harmless the Indemnified Parties against any
loss or damage to property or any injury to or death of any
person occurring at or about or resulting from the acquisition,
ownership, development and use of the Development Property to the
extent not attributable to the negligence of the Indemnified
Parties.
(2) Except for any willful misrepresentation or any willful
or wanton misconduct of the Indemnified Parties, the Developer
agrees to protect and defend the Indemnified Parties, 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 from the actions
` or inactions of the Developer (or if other persons acting on its
behalf or under its direction or'control) under this Agreement,
or the transactions contemplated hereby or arising from the
Developer's acquisition, ownership, development and use of the
Development Property; provided, that this indemnification shall
not apply to the warranties made or obligations undertaken by the
Authority in this Agreement.
(3) All covenants, stipulations, promises, agreements and
obligations of the Authority contained herein shall be deemed to
be the covenants, stipulations, promises, agreements and
obligations of the Authority and not of any governing body
member, officer, agent, servant or employee of the Authority or
the City, as the case may be.
Section 4.7. Busin S ubsidy Act The tax increment
assistance to be made available to the Developer is for a
development-of property located withih.a soils condition tax
increment financing district created under Minnesota Statutes,
Section 469.174, subdivision 19 (i.e. Tax Increment Financing
(Soils Condition) District No. 1) (France Avenue Business Park
Project), and therefore the provisions of Minnesota Statutes,
Sections 116J.993 and.116J.994 do not apply.
i
1181397.2 1 ]
ARTICLE V
ADDITIONAL PROVISIONS
Section 5.1. Conflirrs of Interest. No member of the
governing body or other official of the Authority or the City
shall have any financial interest, direct or indirect, in this
Agreement or the Development Property or any contract, agreement
or other transaction contemplated to occur or be undertaken
thereunder or with respect thereto, nor shall any such member of
the governing body or other official participate in any decision
relating to the Agreement which affects his or her personal
interests or the interests of any corporation, partnership or
association in which he or she is directly or indirectly
interested. No member, official-or employee of the Authority or
the City shall be personally liable to the City in the event of
any default or breach by the Developer or successor or on any
obligations under the termns of- tr -:is Agreement.
Section 5.2. Assianment. The Development Property may be
sold or transferred by the Developer without the consent of the
City or the Authority. This Agreement is not assignable without
the prior written consent of the Authority.
Section 5.3. Titl of A,tiglPF� and Sectiona. 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 5.4. N =ices and De mands . Except as otherwise
expressly provided in this Agreement, a notice, demand or other
communication under this Agreement by any party to any other
shall be sufficiently cie tly given or delivered if it is dispatched b
P Y
registered or certified mail, postage prepaid, return receipt
requested, or delivered personally, and
(a) in the case of the Developer is addressed to or
delivered personally to:
Twin Lakes Business Park
Metropolitan Centre - Suite 3060
333 South 7th Street
Minneapolis, MN 55402
(b) in the case of the Authority is addressed to or
delivered personally to the Authority at:
Brooklyn Center Economic
Development Authority
6301 Shingle Creek Parkway
Brooklyn Center, Minnesota 55430
. ATTN: Executive Director
1181397.2 12
or at such other address with respect to any such party as that
party may, from time to time, designate in writing and forward to
the other, as provided in this Section.
Section 5.5. Counternarts,. This Agreement may be executed
in any number of counterparts, each of which shall constitute one
and the same instrument.
Section 5.6. Law Gpv This Agreement will be
governed and construed in accordance with the laws of the State.
Section 5.7. ExniratiQn. This Agreement shall expire on
the Final Payment Date unless earlier terminated or rescinded in
accordance with its terms.
Section 5.8. Provisions Surv ivina_ Rescission or Expiration.
Sections 4.5 and 4.6 shall survive any rescission, termination or
expiration of this Agreement.witr respect-to or arising out of
any event, occurrence or circumstance- existing prior to the date
thereof.
• 1181397.2 13
• IN WITNESS WHEREOF, the Authority has caused this Agreement
to be duly executed in its name and on its behalf and the
Developer has caused this Agreement to be duly executed in its
name and on its behalf, on or as of the date first above written.
BROOKLYN CENTER ECONOMIC
DEVELOPMENT AUTHORITY
By
Its Executive Director
BY
Its Secretary
This is a signature page to the Development Agreement dated June
26, 2000, by and between the Brooklyn Center Economic Development
Authority and Twin Lakes Business Park.
s 1181397.2 14
• TWIN LAKES BUSINESS PARK
By
Its
This is a signature page to the Development Agreement dated June
26, 2000, by and between the Brooklyn Center Economic Development
• Authority and Twin Lakes Business Park.
1181397.2 15
EXHIBIT A
Legal Description of Tax Increment Financing
District No. 03 (A Redevelopment District)
•
1181397.2 A -1
EXHIBIT B
Legal Description of Development Property
Lot 1, Block 1, Dale and Davies 3r Addition
Parcel ID # 10- 118 -21 -3i -0027
•
• 1181397.2 B -1
• EXHIBIT C
Form of T In crement Note
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
BROOKLYN CENTER ECONOMIC DEVELOPMENT AUTHORITY
TAX INCREMENT REVENUE NOTE
(DALE TILE PROPERTY)
The Brooklyn Center Economic Development Authority,
Minnesota (thy, "authority "), hereby acknowledges itself to be
indebted and, for value received, hereby promises to pay the
amounts hereinafter described (the "Payment Amounts ") to Twin
Lakes Business Park, a Minnesota limited liability company, or
its registered assigns (the "Registered Owner "), but only in the
manner, at the times, from the sources of revenue, and to the
extent hereinafter provided.
The principal amount of this Note shall equal from time to
time the principal amount stated above, as reduced to the extent
that such principal shall have been paid in whole or in part
pursuant to the terms hereof and as provided in that certain
Development Agreement, dated as of June 26, 2000, as the same may
be amended from time to time (the "Development Agreement "), by
and between the Brooklyn Center Economic Development Authority,
Minnesota (the "Authority "), and Twin Lakes Business Park, a
Minnesota limited liability company (the "Company "). The unpaid
principal amount hereof shall bear interest from the date of this
Note at the simple, non - compounded rate of eight percent (8.00,)%
per annum. Interest shall be computed on the basis of a 360 -day
year of twelve (12) 30 -day months.
The amounts due under this Note shall be payable each
February 1 and August 1 of each year, commencing on the February
1, 2001, and each and every February and August 1 thereafter
through and including August 1, 2004 (the "Final Payment Date ")
or, if the first should not be a business day the next succeeding
business day. On each Payment Date the Authority shall pay by
check or draft mailed to the person that was the Registered Owner
of this Note at the close of the last business day preceding such
Payment Date an amount of Net Tax Increments equal to the lesser
of (a) 100% of the Net Tax Increments, or (b) the accrued
interest on the unpaid principal amount of the Note, plus
$125,000 to reduce the principal balance of the Note.
1181397.2 C_ 1
• The Payment Amounts due hereon shall be payable solely from
Net Tax Increments (as defined in the Development Agreement),
which the Authority is entitled to retain pursuant to the
provisions of Minnesota Statutes, Sections 469.174 through
469.179, as the same may be amended or supplemented from time to
time (the "Tax Increment Act "). This Note shall terminate and be
of no further force and effect .(a) following the Final Payment
Date defined above, (b) on any date upon which the Authority
shall have terminated the Development under Section
4.2(b) thereof, or (c) on the date that all principal and
interest payable hereunder shall have been paid in full,
whichever occurs earliest.
The Authority makes no representation or covenant, express
or implied, that the Net Tax Increments will be sufficient to
pay, in whole or in part, the amounts which are or may become due
and payable hereunder.
The Authority's payment obligations hereunder shall be
further conditioned on the fact that no Event of Default under
the Development Agreement shall have occurred and be continuing
at the time payment is otherwise due hereunder, but such unpaid
amounts shall become payable, if said Event of Default shall
thereafter have been cured; and, further, if pursuant to the
occurrence of an Event -of Default under the Development Agreement
the Authority elects to cancel and rescind the Development
Agreement, the Authority shall have no further debt or obligation
under this Note whatsoever. Reference is hereby made to all of
the provisions of the Development Agreement, for a fuller
statement of the rights and obligations of the Authority to pay
the principal of this Note and the interest thereon, and said
provisions are hereby incorporated into this Note as though set
out in full herein.
This Note is a special, limited revenue obligation and not a
general obligation of the Authority and is payable by the City
only from the sources and subject to the qualifications stated or
referenced herein. This Note is not a general obligation of the
City of Brooklyn Center, Minnesota, and neither the full faith
and credit nor the taxing powers of the Authority are pledged to
the payment of the principal of or interest on this Note and no
property or other asset of the Authority, save and except the
above - referenced Net Tax Increments, is or shall be a source of
payment of the Authority's obligations hereunder.
j This Note is issued by the Authority in aid of financing a
project pursuant to and in full conformity with the Constitution
and laws of the State of Minnesota, including the Tax Increment
Act.
IT IS HEREBY CERTIFIED AND RECITED that all acts, condi-
tions, and things required by the Constitution and laws of the
1181397.2 C -2 _
State of Minnesota innesota to be done, to have happened, and to be
P erformed precedent to and in the issuance of this Note have been
•
done, have happened, and have been performed in regular and due
form, time, and manner as required by law; and that this Note,
together with all other indebtedness of the Authority outstanding
on the date hereof and on the date of its actual issuance and
delivery, does not cause the indebtedness.of the Authority to
exceed any constitutional statutory limitation thereon.
IN WITNESS WHEREOF, the Brooklyn Center Economic Development
Authority has caused this Note to be executed by the manual
signatures of its Executive Director and Secretary and has caused
this Note to be issued on and dated 2000.
By By
Its Executive Director Its Secretary
•
•
1181397.2 C -3
CERTIFICATE OF REGISTRATION
It is hereby certified that the foregoing Note, as
originally issued on , 2000, was on said date registered
in the name of Twin Lakes Business Park, a Minnesota limited
liability company, and that, at the request of the Registered
Owner of this Note, the undersigned has this day registered the
Note in the name of such Registered Owner, as indicated in the
registration blank below, on the books kept by the undersigned
for such purposes.
NAME AND ADDRESS DATE OF SIGNATURE
OF REGISTPRED OW F� ,R REGISTRATION OF SE CR ETARY
Twin Lakes Business Park
•
•
1181397.2 C-4 _
EDA Agenda Item No. 4b
City of Brooklyn Center
A great place to start. A great place to stay.
•
To: Mayor Kragness and Council Members Hilstrom, Lasman, Nelson and Peppe
From: Michael J. McCauley
City Manager
Date: October 19, 2000
Re: Purchase of Lot 1, Block 1, Brooklyn Farm Subdivision
Pursuant to the EDA's and City Council's direction, I explored ways to protect the Earle Brown
Heritage Center and the commercial property adjacent to the Heritage Center from potentially
protracted litigation with respect to a proposed sale and development of Lot 1, Block 1, Brooklyn
Farm Subdivision. Reliastar was put on notice regarding the City's intent to enforce the December
1985 Contract for Private Development that was entered into regarding this lot and lot 2. As part of
that process, we engaged in discussions regarding purchase of the property by the EDA. The
proposed purchase agreement is the result of those discussions. The terms would result in the EDA
undertaking ownership of this property for a purchase price of $1,075,000 or approximately $4.00
per square foot. This price is above the assessed value of $737,500. It is consistent with what the
City paid for the parking lot that was attached to the Earle Brown Heritage Center. The Heritage
. Center parking lot was $3.50 per square foot in 1998. The price is below the price of $1.5 Million
we were told that Sharing & Caring Hands had offered with contingencies. Land sales in Brooklyn
Center have ranged from $3.00 per square foot under depressed sales conditions to an average cost
to Regal Theaters of $6.00 per square foot to assemble their parcel. Similar land in Maple Grove has
been selling in the $5.38 to $12.90 per square foot range.
Purchase of the property has advantages and disadvantages. The advantages relate to the EDA being
in a position to insure that the property is used in a fashion that is consistent with the other land uses
and to be able to entertain development proposals from a position of certainty and control. That is,
Reliastar has not succeeded in securing the property's development and had entered into a purchase
agreement that was antithetical to the surrounding land uses. EDA control prevents a recurrence of
this situation. It also means that a potential developer can receive an answer regarding a proposal in
a timely fashion.
Disadvantages include removal of the property from the tax roles in 2002 if it is not developed. This
purchase also restricts the options available to the City since it uses the bulk of our current tax
increment cash. The monies would be taken from Tax Increment District #3 and would be outside
the district (this is in District 2), which is permissible, but would limit the ability to consider other
projects outside District 3 and would also restrict the potential to undertake projects that are not
redevelopment projects. We cannot use more than 25% of District #3's revenues outside District #3
and cannot expend more than 10% on projects that are not redevelopment projects. Current balance
projections at the end of 2001 would indicate that there would be $2.5 Million in TIF District # 3
• ($744,000 would only be available for qualified housing expenditures) and $600,000 in the EDA
6301 Shingle Creek Pkwy, Brooklyn Center, MN 55430 -2199 • City Hall & TDD Number (612) 569 -3300
Recreation and Community Center Phone & TDD Number (612) 569 -3400 • FAX (612) 569 -3494
An Affirmative Action /Equal Opportunities Employer
Fund that is not potentially committed to 69th and Brooklyn Boulevard. While having the EDA
market the property has advantages, we could also end up holding the property. We have had mixed
success in getting some challenged properties re- developed.
The major advantage is the ability to control the development of this property and its sale by a
corporation that is not interested in this community. The major drawback is the potential for the EDA
to hold the land for a period of time.
Commissioner introduced the following resolution and moved
• its adoption:
RESOLUTION NO.
RE AGREEMENT SOLUTION AUTHORIZING PURCHASE AGRE NT FOR LOT 1,
BLOCK 1, BROOKLYN FARM SUBDIVISION
WHEREAS, the City of Brooklyn Center and the Housing and Redevelopment
Authority entered into a contract for private development that related to Lots 1 and 2, Block 1,
Brooklyn Farm Subdivision; and
WHEREAS, Tax Increment Financing District #2 was used to develop the office
building located on Lot 2, Block 1, Brooklyn Farm Subdivision as well as the creation of the Earle
Brown Heritage Center and a number of economic development projects in the area bounded by
Highway 100.- Shingle Creek Parkway, and Interstate 694/94; and
WHEREAS, Lot 1, Block 1, Brooklyn Farm Subdivision has not been developed as
anticipated in the contract for private development covering that property, and
WHEREAS, the Economic Development Authority has previously directed
undertaking and forcement of the contract for private development as may be deemed appropriate,
with similar resolutions adopted by the City's Housing and Redevelopment Authority and the City
of Brooklyn Center; and
WHEREAS, Lot 1, Block 1, Brooklyn Farm Subdivision has not been developed
during a period of high economic activity; and
WHEREAS, the current owners of Lot 1, Block 1, Brooklyn Farm Subdivision had
entered into a contract to sell Lot 1, Block 1, Brooklyn Farm Subdivision for the construction of an
orphanage, with proposed used would be inconsistent with the City's Comprehensive Plan and
would be adverse to the City's tax increment plan for this area; and
WHEREAS, the Economic Development Authority wants to ensure the appropriate
development of Lot 1, Block 1, Brooklyn Farm Subdivision to obtain a compatible use with the
surrounding uses; and
WHEREAS, Lot 1, Block 1, Brooklyn Farm Subdivision is located adjacent to the
Earle Brown Heritage Center, which has received substantial investment by the Economic
Development Authority; and
WHEREAS, it is appropriate to be in a position to seek and encourage development
that will protect and enhance the Economic Development Authority's investment in the Earle Brown
• Heritage Center, as well as the other investments made to the surrounding properties.
. RESOLUTION NO.
NOW, THEREFORE, BE IT RESOLVED by the Economic Development Authority
in and for the City of the City of Brooklyn Center that the Executive Director of the Economic
Development Authority in and for the City of Brooklyn Center is hereby authorized to enter into a
purchase agreement for Lot 1, Block 1, Brooklyn Farm Subdivision on behalf of the Economic
Development Authority upon such terms and conditions as are set forth in the purchase agreement
which is attached here to and incorporated herein by reference as "A ", with such technical changes
to such agreement as may be negotiated that do not effect the substance of the proposed acquisition,
any such changes being approved as to form by the law firm by Briggs and Morgan on behalf of the
Economic Development Authority.
Date President
•
The motion for the adoption of the foregoing resolution was duly seconded by commissioner
and upon vote being taken thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
" A ll
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, made and entered into this day of October, 2000,
between ReliaStar Life Insurance Company, a Minnesota corporation ( "Seller"), and City of
Brooklyn Center, a Minnesota public body corporate and politic ( "Purchaser ").
RECITALS
Seller owns an undeveloped parcel of real estate containing about 6.21 acres located at the
southwest quadrant of the Interstate 94 and Highway 100 interchange, and bordered by Earle Brown
Drive in Brooklyn Center, Minnesota, and legally described on Exhibit A hereto (the "Property").
Subject to and on the terms and provisions hereof, the parties haveagreed that Sellerwill sell
the Property to Purchaser, and Purchaser will buy it from Seller.
NOW, THEREFORE, the parties hereto hereby agree as follows:
• 1. Sale and Purchase.
Subject to and on the terms and provisions hereof, Seller agrees to sell to Purchaser, and
Purchaser agrees to buy from Seller, the Property.
2. Purchase Price.
The purchase price for the Property shall be $1,075,000.
3. Pavment of Purchase Price.
Concurrently with execution of this Agreement by both Seller and Purchaser, Purchaser is
paying First American Title Insurance Company ( "Escrow Agent ") $50,000.00 (the "Earnest
Money "). At the closing of the sale contemplated hereby, Purchaser shall pay the balance of the
purchase price plus or minus any closing adjustments pursuant to this Agreement, in cash by wire
transfer to an account designated by Seller. Escrow Agent shall invest the Earnest Money in a
money market fund and the interest thereon shall be paid to the Purchaser if the Earnest Money is
to be applied to the purchase price or refunded to Purchaser pursuant to this Agreement, and paid
to Seller if the EarnestMoney is to be paid to Seller pursuant to Section 13(a) hereof. The Earnest
Money shall (i) be applied to the purchase price if the sale contemplated hereby closes, (ii) be
refunded to Purchaser if Purchaser terminates this Agreement pursuant to its terms or it terminates
• pursuant to Section 8 hereof, or (iii) be paid to Seller if Seller terminates this Agreement pursuant
to Section 13(a) hereof.
1217143.2
4. Closing. The closing ofthesale of the Property shall be held , 2000,
through an escrow with the Escrow Agent. At the closing (i) Purchaser shall deliver or cause to be
delivered to Seller:
(a) the Earnest Money, by wire transfer to Seller to an account designated by Seller,
(b) the purchase price less the Eamest Money and plus or minus closing adjustments, by
wire transfer to Seller, to an account designated by Seller, and
(c) a closing statement, duly executed by Purchaser,
and (ii) Seller shall deliver to Purchaser (a) a warranty deed to the Property, subject only to those
items approved or deemed approved by Purchaser pursuant to Section 5.1 hereof, (b) an affidavit of
non - foreign seller, (c) a Seller's affidavit in customary form, revised to cover only Settees acts or
agreements, (d) the closing statement, signed and, as appropriate, acknowledged by Seller.
5. Title Matters.
5.1 Examination ofTitle. Promptly afterthe date hereof, Sellershall order a commitment
• for an extended coverage owner's policy of title insurance issued by Escrow Agent covering, and an
ALTA/ACSM survey (meeting 1999 Minimum Standard Detail Reports and covering all applicable
Table A items) respecting, the Property. Purchaser shall be allowed until ten (10) business days after
Purchaser's receipt of the commitment (and exception documents) and survey (whichever occurs
later) to make any objections thereto in Purchaser's sole discretion, said objections to be made in
writing to Seller by the earlier of said dates or deemed to have been waived. No objection may be
made to any instrument or agreement which is given for the benefit of either Purchaser or the
Brooklyn Center Housing and Development Authority (the "HRA") or to any instrument or
agreement to which Purchaser orthe HFA, or both, is party, provided that it is understood that Seller
will cooperate with Purchaser in tenninatingofrecord any such instruments or agreements, including
without limitation that certain dated ,
by and between Purchaser and
5.2 Correction of Title and Title Condition. If any objections to title or survey are made
as provided in Section 5:1, Seller shall be allowed fifteen (15) days in which to cure them. Seller
shall have no obligation to cure any title or survey defect, except mortgages or liens of a definite and
liquidated amount, and if Seller gives Purchaser notice during said fifteen (15) day period that it is
not curing any objection, this Agreement shall terminate unless Purchaser waives the objection in
writing within ten (10) business days after receipt of Seller's notice. Upon correction of title or
survey or waiver of the specified defects by Purchaser, the closing shall be held on the later of the
closing date otherwise established pursuant to this Agreement or ten (10) days after the title or
• survey objections are cured or waived, if title or survey are not cured or the objections thereto are
notwaived within fifteen (15) days after the date on which Purchaser gives written objection to title
121 %14x.2 2
11 All
. or survey as provided in Section S. l above, then this Agreement shall terminate, if this Agreement
terminates pursuant to this Section 5.2, the Earnest Money shall be refunded to Purchaser and neither
party shall have any further obligation hereunder, except that Seller and Purchaser shall each remain
liable under Section 20 hereof.
6. Closine Costs.
Purchaser shall pay recording costs and the premium for the owner's policy of title insurance
on the Property, and Purchaser and Seller shall each pay one -half of the closing fees for the title
company. Sellershall pay any abstracting, service and other charges for issuance ofthe commitment
and the cost of the survey, whether or not the closing occurs, and the state deed tax.
7. Proration.
Real estate taxes due and payable with respect to the Property in 2000 shall be prorated as
of the closing date. Purchaser shall pay all real estate taxes due and payable in 2001 and thereafter.
Seller shall pay at closing all deferred real estate taxes, if any, and all special assessments which are
levied, pending or of record as of the closing date.
8. Certain Contingencies.
Notwithstanding any provision of this Agreement to the contrary, Purchaser's obligation to
purchase the Property is contingent upon:
(a) issuance at closing of an owner's policy of title insurance in favor of Purchaser in the
amount of the purchase price, in form and substance satisfactory to Purchaser and
containing such endorsements as Purchaser requests;
(b) delivery by Seller to Purchaser of the survey in form and substance satisfactory to
Purchaser;
(c) Purchaser's approval and acceptance of all aspects of the status and condition of the
Property, including environmental conditions, in the sole and absolute discretion of
Purchaser, and
(d) the representations of Seller as set forth in Section 11 hereof are true and accurate as
of the closing date.
In the event any of the contingencies are not satisfied (or waived by Purchaser in its sole discretion)
on or before the closing date, Purchaser may elect, by written notice to Seller, to terminate this
Agreement in which event the Earnest Money shall be refunded to Purchaser and neither party shall
• have any further obligations hereunder, except that Seller and Purchaser shall each remain liable
under Section 20 hereof.
121714S.2 3
9. Condemnation.
If there is a condemnation or pending condemnation of all or any portion of the Property or
any rights therein or any access or other appurtenances thereto prior to the closing, Purchaser may
elect (i) to close the transaction contemplated hereby and receive at the closing of the Property either
a credit against the purchase price for the Property in the amount of the award, in the case of a
completed condemnation, or an assignment of all rights in condemnation, in the case of a pending
condemnation, or (ii) to terminate this Agreement and in such event, the Earnest Money shall be
refunded to Purchaser and neither party shall have any further obligations hereunder, except that
Seller and Purchaser shall each remain liable under Section 20.
10. Real Estate Agents.
Seller and Purchaser each represents that it has not retained any broker in connection with
the transactions contemplated hereby, except that Seller has retained CB Rihhard Ellis, Inc. ( "CB ")
and Seller shall be responsible for any commission payable to CS in connection with this
transaction. Seller and Purchaser hereby agree to indemnify the other party from any real estate or
other sales commission or fee payable to any other broker hired or engaged by the indemnifying
party in respect of the transactions contemplated by this Agreement.
11. Seller's Representations.
Seller makes the following representations to Buyer:
(a) The individuals executing this Agreement on behalf of Seller represent to Buyer that
they have the legal and corporate authority to execute this Agreement on behalf of
Seller and to bind Seller. Seller represents to Buyer that Seller has the legal and
corporate authority to enter into this Agreement and to sell the Property.
(b) Seller represents that Seller is not aforeign person, foreign partnership, foreign trust
or foreign estate as those terms are defined in Section 1445 of the Internal Revenue
Code.
(c) Seller represents that Seller has not received notice of any new public improvement
project(s), the cost of which a governmental entity may assess against the Property.
(d) Seller represents that to the actual knowledge of Seller, the Property is not in
violation of any statute, law, ordinance or regulation.
(e) Seller represents that to Seller's actual knowledge there is no action, litigation,
governmental investigation, condemnation or administrative proceeding of any kind
• pending against Seller involving any portion of the Property or against the Property
itself, and no third party has threatened Seller with commencement of any such
tis7f�8.2 4
action, litigation, investigation, condemnation or administrative proceeding relating
to or affecting the Property.
(f) Seller represents that to the actual knowledge of Seller, there are no wells or private
septic systems located on the Property.
(g) Seller represents that to the actual knowledge of Seller, there are not now, nor have
there ever been, any underground or above ground storage tanks of any size or type
located on the Property.
(h) Seller represents that to SeIlees actual knowledge, there are no "hazardous
substances" located on the Property; the Property is not subject to any liens or claims
by government or regulatory agencies or third parties arising from the release or
threatened release of "hazardous substances" in, on or about the Property; the
Property has not been used in connection with the generation, disposal, storage,
treatment or transportation of "hazardous substances."
For purposes of this Agreement, the term "hazardous substance" includes but is not
Iimited to substances defined as "hazardous substances ", "toxic substances" or
"hazardous wastes" in the Comprehensive Environmental Response Compensation
Liability Act of 1980, as amended, mended, 42 USC § 9601, et. seq., and substances defined
as hazardous wastes g , hazardous substances", pollutants or contaminates as
defined in the Minnesota Environmental Response and Liability Act, Minn. Stat. §
1158.02. The term "hazardous substance" shall also include asbestos,
polychlorinated biphenyls, petroleum, including crude oil or any fraction thereof,
petroleum products, heating oil, natural gas, natural gas liquids, liquified natural gas,
or synthetic gas usable for fuel (or mixtures of natural gas and synthetic gas).
(j) Seller represents that "to the actual knowledge of Seller, no activity has been
undertaken on the Property that would cause or contribute to the discharge of
pollutants or fluids into any water source or system, the dredging or filling of any
waters or the discharge into the air of any emissions that would require a permit
under the Federal Water Pollution Control Act, 33 USC § 1251, et. seq., or the Clean
Air Act, 42 USC § 7401, et. seq., or any similar state law or local ordinance.
If, at any time prior to the date of closing, Seller acquires actual knowledge of events or
circumstances which render the representations set forth in this Section inaccurate in any respect,
Seller shall immediately notify Buyer in writing.
•
1217148.2 5
.. A
i 12. Sale "As Is ".
Purchaser acknowledges for Seller's benefit that Purchaser has made and will make its own
inspection, investigation, review and examination of the Property and the soils thereon, and all other
aspects of the Property, including but not limited to a soils report and hazardous substance audit, and
agrees that it is acquiring the Property in its as -is condition without any representation or warranty
of any kind, express or implied, except as otherwise herein expressly provided, by Seller or Seller's
representatives, agents or affiliates, including without limitation any representation as to hazardous
or toxic substances, soil condition, or the availability or adequacy of utilities. Seller shall give
Purchaser access to the Property for purposes of conducting such inspection, investigation and
examination. Purchaser shall indemnify Seller from any damages resulting from Purchaser's
activities on the Property and will restore the same to substantially their same condition as existed
prior to such activities thereon by Purchaser.
I ` 13. Default.
In the event of any default on the part of either party under this Agreement, which continues
for more than 10 days after written notice from the other party (except that no notice shall be
required for default under any obligation to be performed at closing), the following shall apply:
(a) if Purchaser is the defaulting party, Seller's sole remedy shall be to terminate this
Agreement by notice to Purchaser and in that event the Earnest Money shall be paid
to Seller as liquidated damages;
(b) if Seller is the defaulting party, Purchaser may (i) terminate this Agreement (in which.
event Purchaser shall receive the Earnest Money) or (ii) seek specific performance
against Seller.
14. Notices.
Any notice or other communication provided for herein or given hereunder to a party hereto
shall be in writing, and shall be deemed given when sent by facsimile (followed on the same day by
a mailed copy of the notice or communication) or personally delivered to the officer or partner of
a party set forth below or when mailed by first class mail, registered or certified, return receipt
requested, postage prepaid, addressed as follows:
To Seller: ReliaStar Life Insurance Company
c/o R.eliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 710
Minneapolis, MN 55401
Attention: Steven Hufendick
• Telecopy No.: 612- 342 -7323
121710.2 6
• If to Purchaser: City of Brooklyn Center
6301 Shingle Creek Parkway
Brooklyn Center, Minnesota 55430
Attn: Michael McCauley
Telecopy No.: 612 -569 -3494
Either party may change its address for notice purposes by giving notice in the manner set forth in
this Section.
15. Entire Agreement.
This Agreement embodies the entire agreement and understanding between the parties
relating to the transaction contemplated hereby and may not be amended, waived or discharged
except by an instrument in writing executed by the party against whom enforcement of such
amendrnenl' waiver or discharge is sought. If any clauses or provisions herein contained would
invalidate this Agreement in whole or in part, such clauses or provisions only shall be invalid, and
The remainder of this Agreement will remain in full force and effect.
16. Governin¢ Law.
This Ag shall be con �' ns ed and enforced in accordance with the taws of the State of
• Minnesota.
17. Successors and Assiens.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. ns. This Agreement may not be a b Purc
8 g y y baser without
Seller's prior written consent
18. Attornev's Fees.
In the event of any proceeding to enforce this Agreement, the non - prevailing party shall pay
the attorneys' fees and expenses of the prevailing party.
19. Time of Essence.
Time is of the essence of this Agreement
20. Confirmine Termination.
If this Agreement terminates for any reason, each party agrees upon written request from the
other to confirm the termination in writing.
• 121714s.2 7
"
• IN WTIINESS VftHEREOF, the parties hereto have hereunder set their hands as of the date
and year first above written.
SELLER:
R LIASTA.R"LIpE INSURANCE COMPANY
By:
Its:
PURCHASER:
CITY OF BROOKLYN CENTER
By:
Its:
1217148.2 8
. - AGREEMENT OF ESCROW AGENT
The undersigned hereby agrees to hold the Escrow Money and act as Escrow Agent pursuant
to the foregoing Purchase Agreement.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By:
Its:
•
1217148.2 9
.. "A
. EXHIBIT A '
HENNEPIN COUNTY, MINNESOTA
Lot 1, Block 1, Brooklyn Farm Subdivision, Hennepin County, Minnesota.
1217148.2