HomeMy WebLinkAbout2011 07-25 EDAP Regular Session EDA MEETING
City of Brooklyn Center
July 25, 2011 AGENDA
1. Call to Order
-The EDA requests that attendees turn off cell phones and pagers during the meeting. A
copy of the full City Council packet, including EDA (Economic Development Authority),
is available to the public. The packet ring binder is located at the front of the Council
Chambers by the Secretary.
2. Roll Call
3. Approval of Agenda and Consent Agenda
-The following items are considered to be routine by the Economic Development
Authority (EDA) 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
1. June 27, 2011 - Regular Session
4. Commission Consideration Items
a. Resolution Approving Development Agreement with Real Estate Recycling,
LLC (Environmental Testing Loan)
Requested Council Action:
- Motion to approve resolution.
5. Adjournment
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
JUNE 27, 2011
CITY HALL — COUNCIL CHAMBERS
1. CALL TO ORDER
The Brooklyn Center Economic Development Authority (EDA) met in Regular Session called to
.order by President Tim Willsoh at 8:05 p.m.
2. ROLL CALL
President Tim Willson and Commissioners Carol Kleven, Kay Lasman, Tim Roche, and Dan
Ryan. Works Director/City
an. Also resent were Executive Director urt Bo ane Pub W
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Engineer Steve Lillehau Director of Business and Development G Eitel, EDA/HRA
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Specialist Tom Bublitz, ADD, Assistant City Manager/Director of Building and Community
Standards Vickie Schleunin g, CtY Attorney Attorne Charlie LeFevere and Carla Wirth Timesaver Off
Site Secretarial Inc.
3. APPROVAL OF AGENDA AND CONSENT AGENDA
Commissioner Lasman moved and Commissioner Ryan seconded approval of the Agenda and
Consent Agenda, and the following item was approved:
3a. APPROVAL OF MINUTES
1. May 23, 2011— Regular Session
Motion passed unanimously.
4. COMMISSION CONSIDERATION ITEMS
4a. RESOLUTION NO. 2011 -14 AUTHORIZING SUBMISSION OF AN
APPLICATION TO THE MINNESOTA HOUSING FINANCE AGENCY FOR
COMMUNITY FIX UP FUNDS (CFUF) DESIGNATION AND COMMUNITY
REVITALIZATION (CRV) FUNDING
EDA/HRA Specialist Tom Bublitz introduced the item, discussed the history, and stated the
purpose of the proposed resolution to authorize submission of an application to the Minnesota
Housing Finance Agency (MHFA) for Community Fix Up Fund (CFUF) designation and
Community Revitalization (CRV) funding. Mr. Bublitz described the program that provided
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owner- occupied home rehabilitation loans at below market interest rates. It is estimated
Brooklyn Center could fund 50 loans at an average of $15,000 per loan. If approved, the Greater
Metropolitan Housing Finance Agency (GMHC) would prepare a joint application for the cities
of Brooklyn Center, Richfield, and Crystal. The local match requirement of the CRV grant is
estimated at $62,000 and will be funded from the Tax Increment Financing District No. 3
Housing Account. Should the grant be awarded in October of 2011, staff would return to the
EDA with details of the program and agreement with GMHC. The City's primary role is to
provide information and market the program.
The EDA acknowledged there is a great need for this type of program in Brooklyn Center to help
maintain neighborhoods. President Willson thanked staff for finding grant opportunities for the
benefit of Brooklyn Center's residents. Mr. Bublitz thanked GMHC for its work on this grant.
Commissioner Roche moved and Commissioner Lasman seconded adoption of EDA
RESOLUTION NO. 2011 -14 Authorizing Submission of an Application to the Minnesota
Housing Finance Agency for Community Fix Up Funds (CFUF) Designation and Community
Revitalization (CRV) Funding.
Motion passed unanimously.
4b. RESOLUTION NO. 2011 -15 APPROVING ADDITIONAL PROJECTS UNDER
SPENDING PLAN FOR TAX INCREMENT FINANCING DISTRICT NO.2
Director of Business and Development Gary Eitel introduced the item, discussed the history, and
stated the ose of the proposed resolution to add two programs to the Tax Increment
P� p. p
Financing (TIF) Plan for TIF District No. 2. He described the programs to provide financial
assistance for acquisition of the Midas site and for the environmental investigation and testing
required by the Department of Agriculture for the redevelopment of the former Howe Fertilizer
site. He advised that the May 31 deadline was extended by the State to July 1, 2012, and because
of that extension, these two projects can be added.
President Willson thanked staff for its excellent work on completing this application under a
tight deadline.
Commissioner Lasman moved and Commissioner Ryan seconded adoption of EDA
RESOLUTION NO. 2011 -15 Approving Additional Projects Under Spending Plan for Tax
Increment Financin g District No. 2.
Motion passed unanimously.
Executive Director Curt Boganey thanked the EDA for acknowledging staff's efforts and
indicated he will convey the EDA's comments to staff.
4c. RESOLUTION NO. 2011 -16 APPROVING PURCHASE AGREEMENT WITH
THE CONVEYANCE OF CERTAIN PROPERTY TO SHINGLE CREEK, LLC
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Mr. Eitel introduced the item, discussed the history, and stated the purpose of the proposed
resolution to approve a purchase agreement and convey property to Shingle Creek, LLC. He
displayed maps to describe the location of the subject property and recent Council approvals
relating to Shingle Creek Crossing. Mr. Eitel explained that a public hearing is required for the
EDA to sell property, which was noticed for tonight, and this consideration requires findings to
support the sale as being in the best interest of the City's residents. He described the terms of the
purchase agreement, noting the terms follow the TIF agreement provisions.
Commissioner Lasman moved and Commissioner Ryan seconded to open the Public Hearing.
No one wished to address the EDA.
Commissioner Roche moved and Commissioner Ryan seconded to close public hearing.
Commissioner Roche moved and Commissioner Ryan seconded adoption of EDA
RESOLUTION NO. 2011 -16 Approving Purchase Agreement with the Conveyance of Certain
Property to Shingle Creek, LLC.
President Willson complimented staff on its efforts to work together to make the Shingle Creek
Crossing project happen, noting it will be a boon for Brooklyn Center from the perspective of
economy and jobs. The EDA indicated its concurrence.
Mr. Eitel advised, that the final closing is scheduled for tomorrow and the developer will then
own the site and intends, as quickly as possible, to proceed with demolition. He noted that
Walmart is waiting to commence construction under tight timelines to open in 2012.
Motion passed unanimously.
5. ADJOURNMENT
Commissioner Lasman moved and Commissioner Ryan seconded adjournment of the Economic
Development Authority meeting at 8:29 p.m. ,
Motion passed unanimously.
06/27/11 -3- DRAFT
EDA Agenda Item No. 4a
EDA ITEM MEMORANDUM
DATE: July 19, 2011
TO: Curt Boganey, City Manager
FROM: Gary Eitel, Director of Business and Development
SUBJECT: Resolution. Approving Development Agreement with Real Estate Recycling LLC
(Environmental Testing Loan).
Recommendation:
It is recommended that the Economic Development Authority consider approval/adoption of the
Resolution Approving Development Agreement with Real Estate Recycling, LLC.
(Environmental Testing Loan)
Background:
On April 11, 2011, the City Council adopted Resolution No. 2011 -59 and the EDA adopted
Resolution No. 201 1 -08, which approved the creation of a Spending Plan for Tax Increment
Financing District No. 2. This Spending Plan was developed pursuant to Minnesota Statutes,
Section 469.176, Sub. 4m (the "Temporary TIF Authority Act ", commonly referred to as the
2010 Minnesota Job Bill, which authorizes the use of available tax increment from any existing
Tax Increment' Financing District to provide improvements, loans, interest rate subsidies, or
assistance in any form to private development consisting of construction or substantial
rehabilitation of buildings and ancillary facilities, if the following exist:
• Such assistance will create or retain jobs in the State of Minnesota, including .
construction jobs,
• Construction commences before July 1, 2011
• The construction would not have commenced before that date without any assistance;,
and
• The City Council approves a written spending plan (after'duly noticed public hearing)
that specifically authorizes the EDA to take such action.
The TIF 2 Spending Plan specifically identified the following projects:
- the portion of the Embassy Suites — Heritage Center link associated with the D -Barn
Lease
- • the tax increment assistance ( inter -fund loan to Tax Increment District 5) for the
renovation of the Brookdale Mall and development of the Shingle Creek Crossing
Project, and
Additionally, the plan provided the option for the EDA to consider other private
developments within the City which meet the above conditions.
On May 31, 2011, Governor Dayton signed into law an extension of the Minnesota Jobs Bill,
which established July 1, 2012 as the new deadline for commencing eligible construction
projects.
Mission: Ensuring an attractive, clean, safe community that enhances the quality of life and preserves the public trust
EDA ITEM MEMORANDUM
On June 27, 2011, the EDA approved Resolution No, 2011 -15 which amended the Tax
Increment Financing District No. 2. Spending Plan to include the following additional projects:
- Financial assistance for the acquisition of the Midas Site, ($190,000 identified in the
Shingle Creek Crossing Tax Increment Agreement)
- Financial assistance for the environment investigation and testing required by the
Department of Agriculture for the redevelopment of the former Howe Fertilizer Site.
($80,000 budget for consultant and testing costs have been identified by Real Estate
Recycling as reimbursable costs upon completing the environmental reports)
Development and Loan Agreement ( EDA and Real Estate Recycling, LLC )
Section 4.1 Environmental Testing Loan of the attached development agreement provides for the
following:
a) the EDA will lend the Developer, solely from TIF 2 Available Tax Increment, an amount
equal to the lesser of $76,353 or the sum of the cost of the Eligible Costs actually incurred
and paid by the Developer for the environmental remedial investigation of the
Development Property (former Howe Fertilizer Site).
b) the developer will repay $70,000 of the principal amount of the Loan within 30 days of
receipt of the ACCRA Grant from the Minnesota Department of Agriculture, but not later
than December 1, 2011.
c) the developer will repay the remaining balance of the principal. amount by July 1, 2013.
d) to qualify as a Spending Plan activity under Minnesota Jobs Bill, the developer is required
to create a minimum of two full time equivalent jobs in connection with the construction of
the Minimum Improvements (the 51.000 — 60,000 sq.ft. industrial building by June 30,
2013.
e) additionally, in the event the developer fails to commence construction by June 30, 2012,
the extended deadline of the Minnesota Jobs Bill, the outstanding principal of the loan shall
be immediately paid in full.
Budget Issues:
Tax Increment District No. 2 has sufficient funds to cover the $76,353 Environmental Testing
Loan. -
Council Goals:
Strategic:
2. We will aggressively proceed with implementation of City's redevelopment plans
Mission: Ensuring an attractive, clean, safe community that enhances the quality of life and preserves the public trust
EDA ITEM MEMORANDUM
Ongoing:
5. We will improve the image of the City with citizens and those outside of the City's
borders.
Mission: Ensuring an attractive, clean, safe community that enhances the quality of life and preserves the public trust
Commissioner introduced the following resolution and
moved its adoption:
EDA RESOLUTION NO.
RESOLUTION APPROVING DEVELOPMENT AGREEMENT WITH REAL
ESTATE RECYCLING, LLC (ENVIRONMENTAL TESTING LOAN)
BE IT RESOLVED By the Board of Commissioners (the "Board") of the Economic
Development Authority of the City of Brooklyn Center ( "Authority" ) as follows:
Section 1. Recitals
1.01. The Authority has created Housing Development and Redevelopment Project
No. 1 (the "Development District ") pursuant to Minnesota Statutes, Sections 469.090 through
469.1081 and Sections 469:001 to 469.047, as amended, and established Tax Increment Financing
District No. 2 (the "TIF District "), therein, pursuant to Minnesota Statutes, Sections 469.174 to
469.1799, as amended within the Development District.
1.02. The Authority has adopted a spending plan for the TIF District (the "Spending
Plan ") in accordance with Minnesota Statutes, Section 469.176 Subd: 4m, as amended, (the
"Temporary TIF Authority Act ") to utilize existing tax increment revenues from the TIF District in
order to stimulate construction or rehabilitation of private development in a way that will also create
or retain jobs.
1.03. Real Estate Recycling, LLC (the "Developer ") has requested that the Authority
assist the Developer with the financing of certain real estate acquisition, soil remediation and
demolition costs in connection with the development of an approximately 60,000 square foot office
warehouse facility (the "Project ") pursuant to a Development Agreement by and between the
Authority and the Developer (or an affiliate) (the "Agreement ").
1.03. The Authority believes that the development of the Project pursuant to the
Agreement, and fulfillment generally of the Agreement, are in the vital and best interests of the
Authority and the health, safety, morals, and welfare of its residents, and in accord with the public
purposes and provisions of the applicable State and local laws and requirements under which the
development has been undertaken and is being assisted.
Section 2. Authority Approval, Further Proceedings
2.01. The Agreement as presented to the Board is hereby in all respects approved,
subj ect to modifications that do not alter the substance of the transaction and that are approved by the
City Attomey and the Executive Director of the Authority, provided that execution of the Agreement by
the President and the Executive Director shall be conclusive evidence of approval.
t
EDA RESOLUTION NO.
2.02. The President and the Executive Director are hereby authorized to execute the
Agreement on behalf of the Authority and to carry out on behalf of the Authority's obligations
thereunder.
Approved by the Economic Development Authority in and for the City of Brooklyn
Center this 25th day of July, 2011.
July 25, 2011
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.
r
t
DEVELOPMENT AND LOAN AGREEMENT
BY AND BETWEEN
ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER,
MINNESOTA
AND
REAL ESTATE RECYCLING, LLC
-9 2011
388816v2 BR291 -321
ARTICLE I DEFINITIONS .................................................................. ............................... 3,
Section 1.1 Definitions ............................................................. ............................... 3
ARTICLE 11 REPRESENTATIONS AND WARRANTIES ................. ............................... 6
Section 2.1 Representations and Warranties of the Authority . ............................... 6
Section 2.2 Representations and Warranties by the Developer .............................. 6
ARTICLE III CONSTRUCTION OF MINIMUM IMPROVEMENTS . ............................... 9
Section 3.1 Commencement and Completion of Construction ............................... 9
Section 3.2 Effect of Delay ...................................................... ............................... 9
Section 3.3 Compliance with Environmental Requirements ... ............................... 9
Section 34 Additional Responsibilities of the Developer ....... ............................... 9
ARTICLE IV TAX INCREMENT ASSISTANCE ................................. .............................11
Section 4.1 Environmental Testing Loan ............................... ............................... 11
Section 4.2 Business Subsidy Act .......................................... ............................... 11
Section 4.3 Maintenance and Operation of the Development . .............................12
•ARTICLE V TRANSFER LIMITATIONS AND INDEMNIFICATION ..........................13
Section 5.1 Representation as to Development ........................ .............................13
Section 5.2 Limitations on Transfer ......................................... .............................13
Section 5.3 Indemnification ..................................................... .............................14
Section 5.4 Limitation ............................. ............................... ....15
...........................
ARTICLE VI EVENTS OF DEFAULT AND DAMAGES ................... .............................16
Section 6.1 Events of Default Defined .................................... .............................16
Section 6.2 Developer Events of Default ................................. .............................16
Section 6.3 Authority Events of Default .................................. .............................17
Section 6.4 Authority Remedies on Default ......................... ...17
Section 6.5 Developer Remedies on Default ........................... .............................17
Section 6.6 No Remedy Exclusive ...............................:........... .............................18
Section 6.7 No Additional Waiver Implied by One Waiver .... .............................18
ARTICLE VII ADDITIONAL PROVISIONS ......................................... .............................19
Section 7.1 Conflicts of Interest ............................................... .............................19
Section 7.2 Titles of Articles and Sections ..................
.. ........................... ..............19
Section 7.3 Notices and Demands .................................. ...............................
Section7.4 Counterparts .......................................................... .............................19
Section 7.5 Law Governing ................. ............................... ......19
Section 7.6 Consents and Approvals ..................................... ............................... 20
Section 7.7 Representatives ................................................... ............................... 20
Section 7.8 Superseding Effect ......................................:....... ............................... 20
Section 7.9 Relationship of Parties ........................................ ............................... 20
Section7.10 Term .................................................................... ............................... 20
Section7.11 Venue :.................:............................................... ............................... 20
Section 7.12 Provisions Surviving Rescission or Expiration ... ............................... 20
EXHIBIT A DESCRIPTION OF DEVELOPMENT PROPERTY .. ............................... A -1
EXHIBIT B ENVIRONMENTAL TESTING LOAN PROMISSORY NOTE ............... B -1
388816v2 BR291 -321
f
DEVELOPMENT AND LOAN AGREEMENT
THIS DEVELOPMENT AND LOAN AGREEMENT is made and entered into this
_ day of , 2011, by and between the ECONOMIC DEVELOPMENT AUTHORITY
OF BROOKLYN CENTER, MINNESOTA, a body corporate and politic organized and existing
under the laws of the State of Minnesota (the "Authority "), and REAL ESTATE RECYCLING,
LLC, a Minnesota limited liability company (the "Developer ").
RECITALS
WHEREAS, pursuant to Minnesota Statutes, Sections 469.090 through 469.1081 and
Sections 469.001 through 469.047, the Authority has formed Housing Development and
Redevelopment Project No. 1 (the "Project Area") and has adopted a Redevelopment Plan (the
"Redevelopment Plan") for the Project Area which sets forth development objectives for the
Project Area. A major objective of the Redevelopment Plan is to foster the development and
redevelopment of industrial facilities in the Project Area;
P J ,
WHEREAS, the Developer has submitted a proposal to the Authority in connection with
the construction of a industrial development on the Development Property. The Development
Property is within the Project Area;
WHEREAS, the Developer has acquired the Development Property, and intends to
remediate the contaminated soil thereon and demolish certain structures located thereon in
connection with the development of an approximately 51,000 to 60,000 square foot office
warehouse facility (the "Minimum Improvements ");
WHEREAS, under Minnesota Statutes, Sections 469.174 through 469.1799, as amended
(the "TIF Act"), and in particular, Minnesota Statutes, Section 469.176 Subd. 4m, as amended,
(the "Temporary TIF Authority Act "), the Authority is authorized to finance certain public
redevelopment costs of a redevelopment project area with tax increment revenues derived from
existin g g tax increment financing districts in order to stimulate construction or rehabilitation of
private development in a way that will also create or retain jobs;
WHEREAS, in order to set forth the conditions under which the Authority will provide
certain tax increment assistance to the Developer, the Authority and Developer have agreed to
enter into this Agreement;
WHEREAS, the Authority believes that the development of the Development Property,
as more fully set forth in this Agreement, is in the best interests of the residents of the City of
Brooklyn Center, Minnesota (the "City "), and will facilitate the redevelopment of blighted areas
in the City, and increase opportunities for industrial development, and will otherwise benefit the
health, safety, morals and welfare of the residents of the City, in accordance with the public
purpose and provisions of the applicable State and local laws and requirements under the
Redevelopment Plan; and
388816v2 BM91 -321
1
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:
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions All capitalized terms used and not otherwise defined herein
shall have the following meanings unless a different meaning clearly appears from the context:
"Affiliate" means any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with a Person and any purchaser of all or substantially all of
the assets of such Person. For this purpose, "control" means the power to direct management
and policies, directly or indirectly, whether through ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have correlative meanings.
"Agreement" means this Development and Loan Agreement as the same may be from
time to time modified, amended or supplemented.
"Authority" means the Economic Development Authority of Brooklyn Center,
Minnesota, its successors and assigns.
"Authority Representative" means the Executive Director of the Authority or his or her
designee.
"City" means the City of Brooklyn Center, Minnesota, a municipal corporation;
"Construction Lender" means a lender who makes _a Construction Loan to the
Developer.
"Construction Loan" means any loan or loans to be made to provide financing for the
demolition, the site work, or the Minimum Improvements.
"County" means Hennepin County, Minnesota.
"Developer" means Real Estate Recycling, LLC, its successors or assigns.
"Developer Event of Default" means the occurrence of an Event of Default set forth in
Section 6.2 hereof.
"Developer's Representative" means the President of the Developer, or his or her
designee evidenced in writing to the Authority.
"Development" means the Development Property and the Minimum Improvements.
"Development Property" means the real property legally described in Exhibit A hereto.
"Eligible Costs" means the costs of environmental remedial investigation of the
Development Property.
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"Environmental Testing Note" means the Promissory Note, in substantially the form
attached as Exhibit B, delivered to the Authority by the Developer evidencing its obligation to
repay the Environmental Testing Loan.
"Event of Default" means any of the events described in Sections 6.2 or 6.3.
"Market Value" or "Market Valuation" means the market value of real property as
determined by the assessor of the County in accordance with Minnesota Statutes, Section 273.11
(or as finally adjusted by any assessor, board of equalization, commissioner of revenue, or any
court).
"Minimum Improvements" means the remediation of contaminated soil, demolition of
certain structures, and the construction of an approximately 51,000 to 60,000 square foot office
warehouse facility on the Development Property.
"Parties" means the Developer and the Authority.
"Party" means the Developer or the Authority, as the context may require.
"Person" means any individual, corporation, partnership, joint venture, limited liability
company or partnership, association, trust, unincorporated organization, or government, or any
agency or political subdivision thereof.
"Sale" means any sale, direct or indirect, conveyance, assignment, transfer, exchange or
other disposition of all or a part of the Developer's interest in the Minimum Improvements, to
any Person other than an Affiliate.
"State" means the State of Minnesota.
"Termination Date" means the earlier of (i) the date the Environmental Testing Note is
paid in full, or (ii). the date this Agreement is terminated or rescinded in accordance with its
terms;
"TIFAct" means Minnesota Statutes, Sections 469.174 through 469.1799, as amended,
or any successor statutes.
"TIF District No. 2" means Tax Increment Financing (Redevelopment) District No. 2
created by the City and the Authority.
"TIF 2 Available Tax Increment" means tax increment received by the Authority from
TIF District No. 2 on or before February 15, 2012 and not otherwise pledged to other obligations
of TIF District No. 2.
"Unavoidable Delays" means delays, outside the control of the party claiming its
occurrence, which delay the activities contemplated by this Agreement, and which are the direct
result of (a) unusually severe or prolonged bad weather, (b) acts of God, fire or other casualty to
the Minimum Improvements, (c) litigation commenced by third parties which, by injunction or
other similar judicial action, directly results in delays, (d) acts of any federal, State or local
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governmental unit which directly result in delays, (e) strikes, or other labor trouble, (f) delays in
delivery of materials for the Minimum Improvements, (g) soil conditions of the Development
Property or (h) acts of war or terrorism, not existing on the date hereof.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties. of the Authority The Authority
makes the following representations and warranties:
(a) The Authority is a body corporate and politic organized and existing under the
laws of the State of Minnesota with the authority to enter into this Agreement and carry out its
obligations hereunder.
(b) The Authority has sufficient TIF 2 Available Tax Increment to provide the
assistance set forth in Section 4.1.
(c) The activities of the Authority are undertaken for the purpose of fostering the
redevelopment and renovation of certain real property that is or was occupied primarily by
substandard and obsolete buildings and contained contaminated soils, which will revitalize this
portion of the Project Area, increase tax base, and increase employment opportunities.
(d) The execution, delivery and performance of this Agreement, and any other
documents or instruments required pursuant to this Agreement by the Authority does not, and
consummation of the transactions contemplated therein and the fidfillment of the terms thereof
will not, conflict with or constitute on the part of the Authority a breach of or default under any
existing (i) indenture, mortgage, deed of trust or other agreement or instrument to which the
Authority is a parry or by which the Authority or any of its property is or may be bound, or (ii)
legislative act constitution or o latin to the establishment of
g they proceeding establishing or relating
the Authority or its officers or its resolutions.
(e) There is not pending, nor to the best of the Authority's knowledge is there
threatened, any suit,. action or proceeding against -the Authority before any court, arbitrator,
administrative agency or other governmental authority that materially and adversely affects the
validity of any of the transactions contemplated hereby, the ability of the Authority to perform its
obligations hereunder, or as contemplated hereby or thereby, or the validity or enforceability of
this Agreement.
(f) No member of the Board of the Authority or officer of the Authority, has either a
direct or indirect interest in this Agreement or the Development within the meaning of Minnesota
Statutes Sections 412.311 as amended or any successor or statute.
Section 2.2 Representations and Warranties by the Developer The Developer
represents and warrants that:
(a) The Developer is a limited liability company organized and in good standing
under the laws of Minnesota, is duly authorized to transact business within the State, is not in
violation of any provisions of its organizational documents or to the best of the Developer's
knowledge the laws of the State or Minnesota, has the power and authority to enter into this
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Agreement and has duly authorized the execution, delivery and performance of this Agreement
by proper action of its governing body.
(b) The Developer will construct, or cause to be constructed, 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, energy conservation, building code and public health laws and regulations), except for
variances necessary to construct the Minimum Improvements contemplated in the construction
plans approved by the City.
(c) The Developer will obtain, or cause to be maintained, 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 Minimum Improvements may be lawfully constructed.
(d) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the fulfillment of the terms and - conditions hereof do not
and will not conflict with or result in a breach of any of the terms or conditions of the
Developer's organizational documents, any restriction or any agreement or instrument to which
the Developer is now a party or by which it is bound or to which any property of the Developer
is subject, and do not and will not constitute a default under any of the foregoing. To the best of
the Developer's knowledge, the execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the fulfillment of the terms and conditions thereof do
not and will not result in a violation of any order, decree, statute, rule or regulation of any court
or of any state or federal regulatory body having jurisdiction over Developer or its properties,
including its interest in the Development, and do not and will not result in the creation or
imposition of any lien, charge or encumbrance of any nature upon any of the property or assets
of Developer contrary to the terms of any instrument or agreement to which Developer is a party
or by which it is bound.
(e) The execution and delivery of this Agreement will not create a conflict of interest
prohibited by Minnesota Statutes, Section 412.311, as amended, or any successor statute.
(f) The Developer would not construct the Minimum Improvements but for the
execution of this Agreement and the tax increment financing assistance made available
hereunder.
(g) The Developer will fully cooperate with the Authority and the City with respect to
any litigation commenced by third parties with respect to the activities contemplated by this
Agreement.
(h) There are no pending or threatened legal proceedings, of which the Developer has
notice, contemplating the liquidation or dissolution of the Developer or threatening its existence,
or seeking to restrain or enjoin the transactions contemplated by the Agreement, or questioning
the authority of the Developer to execute and deliver this Agreement or the validity of this
Agreement.
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(i) The Developer has not received any notice from any local, State or federal official
that the activities of the Developer or the Authority with respect to the Development Property
may or will be in violation of any environmental law or regulation. The Developer is not aware
of any State or federal claim filed or planned to be filed by any party relating to any violation of
any local, State or federal environmental law, regulation or review procedure, and the Developer
is not aware of any violation of any local, State or federal law, regulation or review procedure
which would give any person a valid claim under any state or federal environmental
statute. [revise ?]
(j) The Developer will cooperate fully with the Authority and the City in the
resolution of any traffic, parking, trash removal or public safety problems which may arise in
connection with the construction and operation of the Minimum Improvements.
(k) The Developer expects that the construction of the Minimum Improvements will
begin on or before June 30, 2012 and, barring Unavoidable Delays, will be substantially
completed not later than June 30, 2013.
(1) The Developer owns the Development Property.
f
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ARTICLE III '.
CONSTRUCTION OF MINIMUM IMPROVEMENTS
Section 3.1 Commencement and Completion of Construction
(a) Subject to the terms and conditions of this Agreement, the Developer will
commence construction of the Minimum Improvements by June 30, 2012 and, barring
Unavoidable Delays, will cause the Minimum Improvements to be substantially completed not
later than June 30, 2013. The term "commence" means the making of visible improvements,
including without limitation demolition of existing structures on the Development Property.
(b) The Developer will construct, or cause to be constructed, the Minimum
Improvements on the Development Property in substantial conformity with the construction
plans approved by the City. Prior to obtaining a certificate of occupancy from the City, upon the
request of the Authority, the Developer will provide the Authority reasonable access to the
Development Property. "Reasonable access" means at least one site inspection per week during
regular business hours.
(c) During construction, marketing, leasing and sales of the Minimum Improvements,
the Developer will deliver quarterly progress reports to. the Authority.
Section 3.2 Effect of Delay The Developer acknowledges that if construction of the
Minimum Improvements is not commenced on or before June 30, 2012, the Environmental
Testing Note must be paid in full
Section 3.3 Compliance with Environmental Requirements The Developer shall
comply with all applicable local, State, and federal environmental laws and regulations, and will
obtain, and maintain compliance under, any and all necessary environmental permits, licenses,
approvals or reviews. As of the date of this Agreement, the Developer has received no notice or
communication from any local, State or federal official that the activities of the Developer or the
Authority under this Agreement may be or will be in violation of any environmental law or
regulation.
Section 14 Additional Responsibilities of the Developer
(a) The Developer will construct, operate and maintain the Minimum Improvements
substantially 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 zoning, building
code, public health laws and regulations, except for variances necessary to construct the
Minimum Improvements contemplated in the construction plans approved by the City).
(b) 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 Minimum Improvements may be lawfully constructed. The Authority makes no
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representations or warranties that all permits or licenses that may be required by State and
federal entities, other than the Authority, have been or will be approved.
(c) The Developer will not -construct any building or other structures on, over, or
within the boundary lines of any public utility easement unless such construction is provided for
in such easement or has been approved by the City.
(d) The Developer, at its own expense, will replace any public facilities and public
utilities damaged during the construction of the Minimum Improvements, in accordance with the
technical specifications, standards and practices of the owner thereof.
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ARTICLE IV
TAX INCREMENT ASSISTANCE
Section 4.1 Environmental Testine Loan
(a) The Authority shall lend the Developer, solely from TIF 2 Available Tax
Increment, an amount equal to the lesser of $76,252 or the sum of the cost of the Eligible Costs
actually incurred and paid by the Developer (the "Environmental Testing Loan"). The Developer
shall submit a settlement statement and paid invoices for Eligible Costs not previously
reimbursed not later than October 1, 2011. The Authority shall have no obligation to make such
payment unless and until:
(i) the Developer has delivered the Agricultural Chemical Response &
Reimbursement Account ( "ACCRA') Grant Agreement with the Minnesota Department
of Agriculture;
(ii) the Developer has delivered the Environmental Testing Note in the form
attached as Exhibit B; and
(iii) the Developer has submitted invoices for Eligible Costs paid in an amount
equal to the principal amount of the Environmental Testing Note.
(b) The Developer shall repay $70,000 of the principal amount of the Environmental
Testing Loan, without interest thereon, within 30 days of receipt of the proceeds of the ACCRA
Grant from the Minnesota Department of Agriculture but not later than December 1, 2011.
(c) The Developer shall repay the remaining balance of the principal amount of the
Environmental Testing Loan, without interest thereon, on July 1, 2013.
(d) On or before June 30, 2013 the Developer shall deliver evidence, reasonably
satisfactory to the Authority, that the Developer or its contractor has created at least 2 full time
equivalent job in connection with the construction of the Minimum Improvements;
(e) If the Developer fails to commence construction of the Minimum Improvements
by June 30, 2012 the outstanding principal amount of the Environmental Testing Note shall be
immediately paid in full (the term "commence" means the making of visible improvements,
including without limitation demolition of existing buildings on the Development Property).
Section 4.2 Business Subsidy Act The County assessor has estimated the current
year's Market Value of the Development Property to be $2,000. The Developer represents.that
the Developer's investment (net of amounts paid pursuant to this Agreement) in acquisition and
site preparation of the Development Property will be not less than $ The
Developer represents that because its investment in the purchase price and cost of site
preparation for the Development Property will equal 70% or more of the assessor's current
year's estimated Market Value of the Development Property the assistance for the Development
does not constitute a "business subsidy" and therefore the provisions of the Business Subsidy
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Law do not apply. The Developer shall submit paid settlement statement(s) and invoices for
acquisition and site preparation costs in an amount not less than $ not later than
April 1, 2012.
Section 4.3 Maintenance and Operation of the Development The Developer will
at all times during the term of this Agreement operate and maintain the Development or cause
the Development to be operated and maintained in a safe and secure way and in compliance with
this Agreement and all federal, State and local laws, regulations, rulings and ordinances
applicable thereto. Developer shall pay all of the reasonable and necessary expenses of the
operation and maintenance of the Development, including all premiums for insurance insuring
against loss or damage thereto and adequate insurance against liability for injury to persons or
property arising from the Development ordinarily required for a business comparable to the
Developer and a facility co Development. Developer shall not knowingly p comparable to the p g y cause
any person working in or attending the Development to be exposed to any hazardous or unsafe
condition; provided that Developer shall not be in default hereunder if it has required the
contractors employed by Developer to perform work on the Development to take such
precautions as may be available to protect the persons in and around the Development from
hazards arising from the work, and has further required each such contractor to obtain and
maintain liability insurance protecting against liability to persons for injury arising from the
work. The expenses of operation and maintenance of the Development shall be borne solely by
Developer.
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ARTICLE V
TRANSFER LIMITATIONS AND INDEMNIFICATION
Section 5.1 Representation as to Development The Developer represents to the
Authority that its purchase of the Development Property, and its other undertakings under this
Agreement, are for the purpose of developing industrial facilities, and not for the purpose of
speculation in land holding. The Developer acknowledges that, in view of the importance of the
development of the Development Property to the general welfare of the Authority and the City,
and the substantial financing and other public aids that have been made available by the
Authority for the purpose of making such development possible, the qualifications and identity
of the Developer are of particular concern to the Authority. The Developer further
acknowledges that the Authority is willing to enter into this Agreement with the Developer
because of the qualifications and identity of the Developer.
Section 5.2 Limitations on Transfer
(a) The Developer may, without prior written notice to the Authority, mortgage, sell,
assign, convey or transfer in any other mode or manner, all or a portion of this Agreement, the
Development Property, the Minimum Improvements to a Construction Lender providing a
Construction Loan for the Minimum Improvements.
The Developer also may, in the regular course of business and without prior written
.notice to the Authority, sell, assign, convey, lease or transfer in any other mode or manner all or
any portion of the Development Property as follows:
(i) to an Affiliate of the Developer;
(ii) to a tenant renting a portion of the Development;
(iii) all or any part of the Development Property and/or all or part of the
Minimum Improvements, where such action is necessary to secure easements or other
encumbrances necessary for the Minimum Improvements.
Except as specifically allowed under this Section, the Developer will not sell, assign,
convey, lease or transfer in any other mode or manner this Agreement, the Development
Property or the Minimum .Improvements, or any interest therein, without the express written
approval of the Authority.
(b) Except as provided in Subsection (a) of this Section, the Authority shall be
entitled to require, as conditions to any approval of any sale, assignment, conveyance, use or
transfer requiring approval of the Authority under this Section that:
(i) Any proposed transferee shall have the qualifications and financial
responsibility, as determined by the Authority, necessary and adequate to fulfill the
obligations undertaken in this Agreement by the Developer;
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(ii) Any proposed transferee, by instrument in writing satisfactory to the
i Authority and in form recordable among the land records 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 Developer under this Agreement and agreed to be
subject to all the conditions and restrictions to which the Developer is subject.
(iii) . There shall be submitted to the Authority for review all instruments and
other legal documents involved in effecting transfer, and if approved by Authority, its
approval shall be indicated to the Developer in writing;
(iv) The Developer and its transferee shall comply with such other conditions
as the Authority may find desirable in order to achieve and safeguard the purposes of the
TIF Act and this Agreement; and
(v) 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 Developer from any of its obligations hereunder.
Section 5.3 Indemnification
(a) The Developer releases the Authority, 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 ") from any loss or damage to property or any injury to or death of any person occurring at
or about or resulting from any defect in the Development to the extent not attributable to the
gross negligence or intentional misconduct of the Indemnified Parties or, with respect to any loss
or damage arising or purportedly arising from the actions or inactions of the Indemnified Parties
in connection with the installation of a sanitary sewer on the Development Property, the
negligence of the Indemnified Parties.
(b) Except for gross negligence or intentional misconduct of the Indemnified Parties,
the Developer agrees to indemnify the Indemnified Parties, now and forever, and further agrees
to hold the aforesaid harmless from any claims, demands, suits, costs, expenses (including
reasonable attorneys' fees) actions or other proceedings whatsoever (a "Claim") 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 the acquisition, construction, installation, ownership,
and operation of, or any defect in, the Development; including, without limitation, any Claim by
a land owner or tenant located on the Development Property to be entitled to relocation costs and
expenses; but excluding any Claim arising or purportedly arising from the actions or inactions of
the Indemnified Parties in connection with the installation of a sanitary sewer on the
Development Property. -
(c) The Developer acknowledges that there are contaminated soils on the
Development Property. Neither the Authority nor the City makes any warranties or
representations regarding, nor do they indemnify the Developer with respect to, the existence or
nonexistence on or in the vicinity of the Development Property of any toxic or hazardous
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substances or wastes, pollutants or contaminants (including, without limitation, asbestos, urea
formaldehyde, the group of organic compounds known as polychlorinated biphenyls, petroleum
products including gasoline, fuel oil, crude oil and various constituents of such products, or any
hazardous substance as defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 ( "CERCLA "), 42 U.S.C. §§ 961 -9657, as amended) (collectively, the
"Hazardous Substances "). The foregoing disclaimer relates to any Hazardous Substance
allegedly generated, treated, stored, released or disposed of, or otherwise placed, deposited in or
located on or in the vicinity of the Development Property, as well as any activity claimed to have
been undertaken on or in the vicinity of the Development Property that would cause or contribute
to causing (1) the Development Property to become a treatment, storage or disposal facility
within the meaning of, or otherwise bring the Development Property within the ambit of, the
Resource Conservation and Recovery Act of 1976 ( "RCRA "), 42 U.S.C. § 691 et SeMc ., or any
similar state law or local ordinance, (2) a release or threatened release of toxic or hazardous
wastes or substances, pollutants or contaminants, from the Development Property within the
meaning of, or otherwise bring the Development Property within the ambit of, CERCLA, or any
similar state law or local ordinance, or (3) the discharge of pollutants or effluents 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 U.S.C.
§ 1251 et sM., or any similar state law or local ordinance. Further, neither the Authority nor the
City makes any warranties or representations regarding, nor does either the Authority or the City
indemnify the Developer with respect to, the existence or nonexistence on or in the vicinity of
the Development Property of any substances or conditions in or on the Development Property
that may support a claim or cause of action under RCRA, CERCLA or any other federal, state or
local environmental statutes, regulations, ordinances or other environmental regulatory
requirements, including without limitation, the Minnesota Environmental Response and Liability
Act, Minnesota Statutes, Chapter 115B.
(d) The Developer waives any claims against the Indemnified Parties, for
indemnification, contribution, reimbursement or other payments arising under federal and state
law and the common law or relating to the environmental condition of the land comprising the
Development Property.
Section 5.4 Limitation All covenants, stipulations, promises, agreements and
obligations of the Authority or the Developer contained in this Agreement shall be deemed to be
the covenants, stipulations, promises, agreements and obligations of the Authority or the
Developer, respectively, and not of any governing body member, officer, agent, servant or
employee of the Authority, the City or the Developer in the individual capacity thereof.
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ARTICLE VI
EVENTS OF DEFAULT AND DAMAGES
Section 6.1 Events of Default Defined Subject to applicable cure periods, 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:
Section 6.2 Developer Events of Default The following shall be Developer Events
of Default:
(a) the Developer shall fail to make (a) any payments required under Section 4.1 of
this Agreement on the date due or (b) any other payment due under this Agreement or the
Environmental Testing Note on or before the date that the payment is due and such default
continues for 10 days thereafter.
(b) the Developer shall fail to begin construction of the Minimum Improvements or,
subject to Unavoidable Delays, to proceed with due diligence to complete the Minimum
Improvements as provided in Section 3.1 and by the date set forth therein, or the Developer shall
default in or violate its obligations with respect to the construction of the Minimum
Improvements (including the nature thereof) and such failure, default, or violation, shall not be
cured within 30 days after written notice to do so. Notwithstanding the foregoing, if the default
reasonably requires more than 30 days to cure, such default shall not constitute an Event of
Default, provided that the curing of the default is promptly commenced upon receipt by the
Developer of the notice of the default, and with. due diligence is thereafter continuously
prosecuted to completion and is completed within a reasonable period of time, and provided that
Developer keeps the Authority well informed at all times of its progress in curing the default;
provided in no event, other than as a result of Unavoidable Delays, shall such additional cure
period extend beyond 180 days;
(c) there is, in violation of Article V of this Agreement, any conveyance or other
transfer of the Development Property or any part thereof, and such violation is not cured within
30 days after written demand by the Authority to the Developer;
(d) . subject to Unavoidable Delays, failure by Developer to observe or perform any
other covenant, condition, obligation or agreement on its part to be observed or performed under
this Agreement, and the continuation of such failure for a period of 30 days after written notice
of such failure from the Authority. Notwithstanding the foregoing, if the default reasonably
requires more than 30 days to cure, such default shall not constitute an Event of Default,
provided that the curing of the default is promptly commenced upon receipt by the Developer of
the notice of the default, and with due diligence is thereafter continuously prosecuted to
completion and is completed within a reasonable period of time, and provided that Developer
keeps the Authority well informed at all times of its progress in curing the default; provided in
no event, other than as a result of Unavoidable Delays, shall such additional cure period extend
beyond 180 days; or
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(e) the Developer 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 of 1978, as amended or under any similar Federal or State law; or
(ii) make an assignment for the benefit of its creditors; or (ii) become insolvent or adjudicated a
bankrupt; or if a petition or answer proposing the adjudication of 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 90 days after the filing thereof; or a receiver, trustee or liquidator of Developer, or of the
Development, or part thereof, shall be appointed in any proceeding brought against Developer,
and shall not be discharged within 90 days after such appointed, or if Developer shall consent to
or acquiesce in such appointment.
Section 6.3 Authority Events of Default Subject to Unavoidable Delays, the failure
of the Authority to observe or perform any covenant, condition, obligation or agreement on its
part to be observed or performed under this Agreement, and the continuation of such failure for a
period of 30 days after written notice of such failure from any party hereto shall be an Event of
Default for the Authori Notwithstanding the foregoing, if the default reasonably requires
Authority. Notvcnth g g g, y q
more than 30 days to cure, such default shall not constitute an Event of Default, provided that the
curing of the default is promptly commenced upon receipt by the Authority of the notice of the
default, and with due diligence is thereafter continuously prosecuted to completion and is
completed within, a reasonable period of time, and provided that the Authority keeps the
Developer well informed at all times of its progress in curing the default; provided in no event,
other than as a result of Unavoidable Delays, shall such additional cure period extend beyond
180 days.
Section 6.4 Authority Remedies on Default Whenever any Developer Event of
Default occurs, the Authority may take any one or more of the following actions:
(a) Suspend performance under this Agreement 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 declare the outstanding principal balance of the
Environmental Testing Loan to be immediately due and payable, whereupon the Environmental
Testing Note shall become immediately due and payable by the Developer.
(c) Take whatever action at law or in equity may appear necessary or desirable to the
Authority to collect any payments due under this Agreement, or to enforce performance and
observance of any obligation, agreement, or covenant of the Developer under this Agreement or
the Environmental Testing Note.
Section 6.5 Developer Remedies on Default Whenever any Event of Default occurs
by the Authority, the Developer may suspend its performance under this Agreement and/or take
whatever action at law or in equity may appear necessary or desirable to the Developer to
enforce performance and observance of any obligation, agreement, or covenant of the Authority
under this Agreement.
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Nothing in this Agreement shall entitle the Developer to make any claim against the
Authority for any damages whatsoever and the Developer's remedies are strictly limited to the
foregoing.
Section 6.6 No Remedy Exclusive No remedy herein conferred upon or reserved to
the Authority or the Developer is intended to be exclusive of any other available remedy or
remedies unless otherwise expressly stated, 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. In order to entitle the Authority or the Developer, 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 VIII.
Section 6.7 No Additional Waiver Implied by One Waiver If 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.
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ARTICLE VII
ADDITIONAL PROVISIONS
Section 7.1 Conflicts of Interest No member of the Authority or other official of the
Authority shall have any financial interest, direct or indirect, in this Agreement, the Development
Property or the Minimum Improvements, 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 in the event of any
default or breach by Developer or successor or on any obligations under the terms of this
Agreement.
Section 7.2 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 7.3 Notices and Demands 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 given or delivered if it is dispatched by registered or certified mail,
postage prepaid, return receipt requested, or delivered personally, and
(a) in the case of Developer, is addressed to 'or delivered personally to Developer at
in the case of the Developer is addressed to or delivered personally to:
Real Estate Recycling, LLC
905 7 th St
Minneapolis, MN 55042
(b) in the case of the Authority is addressed to or delivered personally to the
Authority at:
6301 Shingle Creek Parkway
Brooklyn Center, MN 55430 -2199
Attn: City Manager
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 7.4 Counterparts This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 7.5 Law Governing This Agreement will be governed and construed in
accordance with the laws of the State of Minnesota.
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Section 7.6 Consents and Approvals In all cases where consents or approvals are
required hereunder, such consents or approvals shall not be unreasonably conditioned, delayed or
withheld.. All consents or approvals shall be in writing in order to be effective.
Section 7.7 Representatives Except as otherwise provided herein, all approvals and
other actions required of or taken by the Authority shall be effective upon action by the
Authority Representative. All actions required of or taken by Developer shall be effective upon
action by the Developer Representative.
Section 7.8 Superseding Effect This Agreement reflects the entire agreement of the
Parties with respect to the matters covered herein, and supersedes in all respects all prior
agreements.of the Parties, whether written or otherwise, with respect to such matters.
Section 7.9 Relationship of Parties Nothing in this Agreement is intended, or shall
be construed, to create a partnership or joint venture among or between the Parties, and the rights
and remedies of the Parties shall be strictly as set forth in this Agreement.
Section 7.10 Term The term of this Agreement shall be effective from the day and
year first above written until the Termination Date.
Section 7.11 Venue All matters, whether sounding in tort or in contract, relating to the
validity, construction, performance, or enforcement of this Agreement shall be controlled by and
determined in accordance with the laws of the State of Minnesota, and the Developer agrees that
all legal actions initiated by the Developer or Authority with respect to or arising from any
provision contained in this Agreement shall be initiated, filed and venued exclusively in the State
of Minnesota, Hennepin County, District Court and shall not be removed therefrom to any other
federal or state court.
Section 7.12 Provisions Surviving Rescission or Expiration Section 5.3 shall
survive any rescission, termination or expiration of this Agreement with respect to or arising out
of any event, occurrence or circumstance existing prior to the date thereof.
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IN WITNESS WHEREOF, the Authority and Developer have caused this Agreement to
be duly executed in their names and on their behalf, all on or as of the date first above written.
ECONOMIC DEVELOPMENT
AUTHORITY OF BROOKLYN CENTER, .
MINNESOTA
By
President
By
Executive Director
S -1
388816v2 BR291 -321
REAL ESTATE RECYCLING, LLC,
a Minnesota limited liability company
By:
Its:
S -2
388816v2 BR291 -321
EXHIBIT A
DEVELOPMENT PROPERTY
r
A -1
388816v2 BR291 -321
EXHIBIT B
FORM OF ENVIRONMENTAL TESTING LOAN
PROMISSORY NOTE
Real Estate Recycling, LLC (the "Developer "), hereby acknowledges itself to be indebted
and, for value received, hereby promises to pay to the Economic Development Authority of the
City of Brooklyn Center, Minnesota (the "EDA ") or its registered assigns (the registered owner
of this Note is referred to herein as the "Registered Owner "), the principal sum of Seventy -Six
Thousand, Two Hundred Fifty -Two and no /100 Dollars ($76,252).
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. This Note is issued pursuant to that certain Development and Loan
Agreement (the "Development Agreement "), dated as of _, 2011, as the same may be
amended from time to time, by and between the EDA and the Developer. Any terms used in this
Note and not otherwise defined shall have the meaning given in the Development Agreement.
This Promissory Note (the "Note ") bears no interest.
$70,000 of the principal of this Note shall be due and payable within 30 days of receipt
by the Developer of the proceeds of the Agricultural Chemical Response & Reimbursement
Account Grant from the Minnesota Department of Agriculture, but not later than December 1,
2011.
The Developer shall repay the remaining balance of the principal amount of this Note on
July 1, 2013.
If the Developer fails to commence construction of the Minimum Improvements by June
30, 2012 the outstanding principal amount of this Note shall be immediately paid in full.
This Note may be prepaid b the Developer at an time.
Y p p Y p Y
B -1
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IN WITNESS WHEREOF, Real Estate Recycling, LLC, has caused this Note to be
executed and delivered as of 9 2011.
REAL ESTATE RECYCLING, LLC,
a Minnesota limited liability company
By:
Its:
B -2
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