04-16-90 agendaHOUSING AND REDEVELOPMENT AUTHORITY
HRA Letter No. 8
Agenda April 16, 1990
Issue Statement:
Authorization for a second partial payment in the amount of
$3,944 to Lino Lakes Nursery for the ILN Streetscape.
Background:
On February 20, 1990, the HRA authorized the first partial
payment of $19,557 to Lino Lakes on a contract totaling $35,950.
The contract was approved in 1989.
Recommendation:
Adopt a motion. authorizing staff to make a partial payment of
$3,944 when the contractor begins work during the next few weeks.
Basis of Recommendation:
The payment is based on the number of trees planted along Lyndale
Avenue, less one which was broken.
Alternative Recommendation:
1. Deny payment
2. Change the recommended payment amount.
Discussion/Decision Mode:
As the contractor begins work on the project, a payment would be
appropriate.
Respectfully submitted,
__a )-
171
Jams
P. Prosser
Exe ive Director
JDP:cak
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HOUSING AND REDEVELOPMENT AUTHORITY
HRA Letter No. 9
Agenda April 16, 1990
Issue Statement:
Authorization to execute an agreement to provide marketing
services for the residential energy conservation program.
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Background
The HRA's energy program has evaluated the efficiency of over
1,600 Richfield homes with a Home Energy Checkup (HEC). On two
occasions in the last two years, every homeowner has received a
direct mail offer to receive a HEC. Energy program services
offered to home owners are based on information secured during
this audit. The challenge now is to determine how to encourage
the majority of homeowners to respond and have their home
evaluated for energy efficiency. New approaches are needed to
receive a response from those residents.
A grant secured in late 1989 from the Minnesota Department of
Public Service, Energy Division, provides funding to develop and
implement a marketing project. Development and implementation is
anticipated to occur during 1990. (The grant application with
this proposed activity was approved by the HRA). Major
promotions based on the marketing project would occur in the fall
of 1990 and 1991.
Staff sought proposals from marketing research and communication
firms and evaluated three responses. The BEST Group and Carlson
Companies were interviewed. All firms priced their services in
the $12,000 to $13,000 range.
Staff was seeking a firm:
1) with demonstrated creativity,
2) with experience in energy conservation programs,
3) capable of developing a good working relationship,
4) which could provide camera ready marketing materials, and
5) with a proposal priced less than $14,000.
The BEST Group provided the most appropriate package and priced
their service at approximately $12,500. References have endorsed
the capabilities and results that can be provided by the BEST
Group.
Recommendation:
Authorize entering into an agreement with BEST Group to provide
marketing services for the energy program.
Basis of Recommendation:
1. The marketing project is funded and required as part of a
grant agreement the HRA has with the State of Minnesota.
2. The BEST Group has submitted a proposal that addresses the
marketing problem identified.
3. The proposed cost of service, approximates $12,500, and
is within the amount of funds available from the grant.
4. Reference checks indicate that BEST is responsible and
creative.
Alternative Recommendation:
Not approve entering into an agreement. However, grant
objectives could then not be met and energy program promotion
would not be ready in a timely manner for fall, 1990 activities.
Discussion/Decision Mode:
If authorized, the agreement would be prepared and implemented in
April to provide for timely marketing services.
Respectfully submitted,
Jam Prosser
Exe Vuiv?e Director
JDP:cak
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RESOLUTION NO.
THE HOUSING AND REDEVELOPMENT AUTHORITY
,IN AND FOR THE CITY OF RICHFIELD, MINNESOTAt
RESOLUTION RELATING TO PROVIDING
MARKETING SERVICES FOR THE ENERGY PROGRAM
WHEREAS, the HRA's energy program has serviced over 1,600
Richfield homes with a Home Energy Checkup and there remains
approximately 8,400 homes that have not responded to program
offerings; and
WHEREAS, the HRA has received a grant from the Minnesota
Department of Public Service, Energy Division, to develop and
implement a marketing project in 1990 to reach unserved homes;
and
WHEREAS, proposals were received from three marketing firms
and evaluated by staff; and
WHEREAS, the proposal from the BEST Group has been
identified as best meeting program needs and achieving grant
requirements at a cost approximating $12,500; and
WHEREAS, it is necessary to begin the marketing project soon
to be able to meet a fall, 1990 implementation objective.
NOW, THEREFORE, BE IT RESOLVED by the Housing and
Redevelopment Authority in and for the City of Richfield as
follows:
The Executive Director and Chairperson are authorized to
take those actions necessary to enter into an agreement with the
BEST Group to provide marketing services for the energy program.
Adopted by the Housing and Redevelopment Authority in and
for the City of Richfield, this 16th day of April, 1990.
Thomas E. Harms, Chairperson
ATTEST:
Joan Helmberger, Secretary
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HOUSING AND REDEVELOPMENT AUTHORITY
HRA Letter No. 10
April 16, 1990
Issue Statement:
Consideration of a contract for Private Development with the
Robert Larsen Partners, Inc. regarding The Promenade, ILN.
Background:
On November 20, 1989, the HRA and City Council approved an
Exclusive Developer's Agreement with the Robert Larsen Partners,
Inc. The Agreement provided for the Larsen Partners and HRA/City
to work toward a presentation of a Contract for Private
Development by the end of April, 1990.
Recommended Action:
Review the attached Contract for Private Development. Provide
direction to staff for final agreement draft.
Basis of Recommendation:
1. The November 20, 1989 Agreement between the parties called
for the submission of a Contract for Private Development
by the end of April, 1990.
2. Significant parts of the Contract for Private Development
include provisions for the following:
a. Development of the area within the ILN West of
Lyndale known as "Phase I".
b. Robert Larsen Partners Inc. will construct a shopping
mall having a minimum market value of $33,500,000.
c. A mechanism to finance the public improvements in
the ILN area through the use of TIF funding with a
special assessment levy in the event there is
insufficient tax increment to pay debt service.
d. The acquisition of land within Phase I and Phase II
or through the use of the HRA condemnation power to
the extent that Larsen is unable to acquire all of
the land necessary for the project.
e. Larsen will initially pay all of the costs relating
to the acquisition of the property (real estate costs,
fixtures, relocation, HRA costs and attorney's fees)
whether by voluntary acquisition or condemnation.
f. Larsen will be paid a land write down over a base
cost through a combination of bond proceeds, pay
as you go proceeds and other funds subject to the
limitations of the contract.
g. This contract supersedes the November 20, 1989
Agreement.
3. Staff and attorney should review direction from HRA prior to
final draft approval.
4. It is customary for City Council and HRA to conduct a joint
meeting for final approval of a document agreement. A
tentative meeting date could be scheduled for this purpose.
Alternative Recommendation:
1. Amend the Contract.
2. Reject the Contract.
Discussion/Decision Mode:
The November 20, 1989 Agreement calls for the execution of this
Contract by the end of April, 1990.
Respectfu y submitted,
James D Prosser
Execu i'e Director
JDP:ff
is
0
4/13/90
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CONTRACT FOR
PRIVATE DEVELOPMENT
THIS AGREEMENT, made and entered into this day of ,
1990, by and between THE HOUSING AND REDEVELOPMENT AUTHORITY OF
THE CITY OF RICHFIELD, MINNESOTA, a Minnesota public body corporate and
politic (HRA), the CITY OF RICHFIELD, a Minnesota municipal corporation (City)
and ROBERT LARSEN PARTNERS, INC. a Minnesota corporation (Redeveloper).
WITNESSETH;
WHEREAS, the City and HRA have established the Interstate-Lyndale-
Nicollet Redevelopment Project Area ("Project Area") under the authority of
Minnesota Statutes, Chapter 469 (the "Act"), and have established a
Redevelopment Tax Increment Financing District ("TIP District'l and adopted a
Financing Plan ("TIP Plan") for the TIF District to facilitate the financing of public
development and redevelopment costs in the Project Area; and
. WHEREAS, the City and HRA deem it to be in the public interest to
facilitate and encourage redevelopment of the Project Area by a combination of
public and private activity within the Interstate-Lyndale-Nieollet Redevelopment
Project Area and in accordance with the TIF Plan adopted by the City, on
November 12, 1985, and HRA on October 21, 1985, following extensive study and
preliminary work conducted by the City and HRA and others engaged by them; and
WHEREAS, the Redeveloper has proposed a development ("Development")
within such Project Area which the HRA and City believe will promote and carry
out the objectives for which redevelopment is undertaken, will be in the vital best
interests of the City, will promote the health, safety, morals, and welfare of its
residents and will be in accord with the public purposes and provisions of the
applicable state and local laws and requirements under which the Project has been
undertaken and is being assisted; and
WHEREAS, the Redeveloper is willing to purchase property from third
parties and from the City or HRA within the Project Area ("Redevelopment
Property") and to develop the Redevelopment Property for and in accordance with
this Agreement; and
WHEREAS, consistent with the TIP Plan, the City and the HRA, are willing
to provide financial assistance and construct, reconstruct, and maintain certain
public improvements in accordance with the provisions of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual obligations
of the parties contained herein, each of them does hereby represent, covenant and
agree with the others as follows:
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ARTICLE I
DEFINITIONS, RXHIBITS,
RULES OF INTERPRETATION
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Section 1.1. Definitions. In this Agreement, unless a different meaning
clearly appears from the context:
"Act" means the Economic Development Act, Minnesota Statutes, Chapter
469, as amended.
"Agreement" means this Agreement, as the same may be from time-to-time
modified, amended, or supplemented.
"Assessment Agreement" means the Assessment Agreement and the form of
the Agreement contained in Exhibit D between the Authority and the Redeveloper
establishing a Minimum Market Value for the Redevelopment Property and
complete Minimum Improvements.
"Authority" means the Housing and Redevelopment Authority in and for the
City of Richfield, or any successor assigns.
"Bonds" means collectively:
(a) $1,900,000 General Obligation Redevelopment Bonds, Series
62, 1989A (hereinafter "Existing Bonds").
(b) General Obligation Tax Increment Bonds, Series 199_A
(hereinafter "Road Bonds").
(e) General Obligation Taxable Tax Increment Bonds, Series 199_B
(hereinafter "Land Bonds").
"Certificate of Completion" means the certification, in the form of the
certificate contained in Exhibit C attached to and made a part of this Agreement,
provided to the Redeveloper, pursuant to Section 4.5 of this Agreement.
"City" means the City of Richfield.
"Completion of Construction" means with respect to any phase the
completion of construction of the Minimum improvements for that phase except
for tenant finish work.
"Construction Contract" means a contract or contracts which provides for
completion of a phase on the Minimum Improvements.
"County" means the County of Hennepin.
"Event of -Default" means an action by the Redeveloper listed in Article X
of this Agreement.
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"Equity" means contributions or funds by Redeveloper sufficient to satisfy
the providers of Financial Commitments and to satisfy the other obligations for
which Equity is required hereunder.
"Financial Commitment" means a written document which sets forth the
conditions which, if satisfied by the Redeveloper, entitles it to a loan in a soeeified
amount at specific loan terms.
"Minimum improvements" means the improvements to be constructed by the
Redeveloper on the Redevelopment Property.
"Minnesota Environmental Policy Act" means the statutes located at
Minnesota Statutes Sections 116D.01 et seg., as amended.
"Minnesota Environmental Rights Act" means the statutes located at
Minnesota Statutes Sections 116B.01 et seg., as amended.
"National Environmental Policy Act" means the federal law located at 42
U.S.C. SS 4311 et seg., as amended.
"Phase II Parcel" means that tract of land lying within the TIP District
which is legally described as such on the attached Exhibit A.
"Phase II Property" means the tract of land comprised of the Phase II Parcel
and land contiguous thereto upon which the Public Improvements are to be
constructed and located.
"Public Improvements" means the improvements to be constructed by the
City to benefit and serve the Redevelopment Property and the Phase II Parcel in
accordance with the provisions of Article V of this Agreement.
"Redeveloper" means Robert Larsen Partners, Inc., a Minnesota corporation,
or any other entity in which the Robert Larsen is a principal shareholder or general
partner.
"Redevelopment" means the Minimum Improvements to be constructed by
the Redeveloper on the Redevelopment Property, and consisting of the
construction of approximately 338,900 square feet of retail commercial space and
related site improvements.
"Redevelopment Property" means the real property described as such of
Exhibit A of this Agreement.
"State" means the State of Minnesota.
"Tax Increment" means that portion of the real property taxes which is paid
with respect to the Redeveloper Property and which is remitted to the Authority as
tax increment pursuant to the Tax Increment Act, after reduction (if any) of fiscal
disparities contributions which are mandated by state law to be, made with respect
to any parcel.
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"Tax Increment Act" means Minnesota Statutes Section 469.174 through
469.179, of the Economic Development Act.
"Tax Official" means any City or county assessor; County auditor•t City,
County or State board of equalization, the commissioner of revenue of the State,
or any State or federal district court, the tax court of the State, or the State
Supreme Court.
"Transfer" means an Agreement, substantially in the form of the Agreement
contained in Exhibit K attached hereto, among the Authority, the Redeveloper, and
an entity which will assume the obligations of the Redeveloper to undertake a
Phase of the Minimum Improvements in the stead of the Redeveloper pursuant to
Section 9.3 of this Agreement.
"Transferee" means an entity other than the Authority and the original
Redeveloper which executes a Transfer.
"Unavoidable Delays" means delays which are the direct result of strikes,
other labor troubles, fire or other casualty to the Minimum Improvements,
litigation commenced by third parties which, by injunction or other similar judicial
action, directly results in delays, or acts of any federal, state or local
governmental unit other than those provided for under this Agreement or any
other 'cause beyond the control of Redeveloper which directly results in delays,
provided, however, that adverse market conditions affecting the marketability or
profitability of the Minimum Improvements, or the inability to secure financing of
the Minimum Improvements shall not constitute Unavoidable Delays.
"Maturity Date" means the date on which the principal of and interest on
the Bonds is paid in full.
1.2. Exhibits. The following exhibits are attached to and made a part of
this Agreement.
A. Redevelopment Property Legal Description;
8. Certificate of Completion;
C. Assessment Agreement and Assessor's Certification;
D. Public Improvements to be Constructed;
9. Performance time lines as required by this Agreement (for reference
only).
P. Performance time lines required for Section 3.14(02) interest
payments;
G. Deficiency Agreement.
H. Transfer Agreement
1.3. Rules of Inte retation. (01) This Agreement shall be interpreted in
accordance with and governed by the laws of the State of Minnesota;
(02) The words "herein" and "hereof" and words of similar importance,
without reference to any particular section or subdivision refer to this Agreement
as a whole rather than any particular section or subdivision hereof;
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(03) Any titles of the several parts, articles and sections of this
Agreement are inserted for convenience and reference only and shall be
disregarded in construing or interpreting any of its provisions.
ARTICLE II
REPRESENTATIONS
Section 2.1. ReRresentations by the Redeveloper. (01) The Redeveloper
has the power to enter into this Agreement and has duly authorized the execution,
delivery, and performance of this Agreement by proper action.
(02) The Redeveloper reasonably believes that it has the capability to
obtain necessary Equity and a Financial Commitment necessary for construction of
the Minimum Improvements.
(03) If the conditions precedent to construction occur, the Redeveloper
will construct the Minimum Improvements described in the Concept Plans in
accordance with the terms of this Agreement, the Redevelopment Plan and all
local, state and federal laws and regulations. The Minimum Improvements and
Redevelopment Property will have a Market Value of at least $33,500,000.
(04) The Redeveloper will exercise all reasonable efforts to obtain, in a
timely manner, all required permits, licenses, and approvals and will meet in a
timely manner, all lawful requirements of all local, state, and federal laws and
regulations which must be obtained or met before the Improvements may be
constructed.
(05) Redeveloper will comply in all material respects, with all applicable
local, state and federal environment laws and regulations, will have obtained any
and all necessary environmental reviews, licenses or clearances under, and will be
in material compliance with the applicable requirements of the National
Environmental Policy Act of 1969, the Minnesota Environmental Policy Act, and
the Critical Area Act of 1973 and any other applicable environmental law or
regulation. Redeveloper has not received notice or communication from any local,
state or federal official indicating that the activities of Redeveloper may be or
will be in violation of any environmental law or regulation. Redeveloper is not
aware of any facts the existence of which would cause the Redeveloper to be in
violation of any local, state or federal environmental law, regulation or review
procedure or which would give any person a valid claim under the Minnesota
Environmental Rights Act;
Should the City or HR.A, upon request of Redeveloper, elect to seek
environmental review pursuant to the Alternative Urban Areawide Review Process
("AUARP"), Redeveloper agrees that it will indemnify, hold harmless and release
the City, the HRA and their officers, agents and employees from any claim or
cause of action occasioned by or arising out of the use of such environmental
review process. The Redeveloper also agrees that it will reimburse the City and
HRA for all costs and expenses incurred by them in connection with environmental
reviews.
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2.2. Representations by HRA and C . The HRA and City make the
following representations as the basis for the undertaking on their respective parts
herein contained.
(01) The HRA and City are authorized by law to 'enter into this
Agreement and to carry out their obligations hereunder. V
(02) Subject to the applicable provisions of this Agreement, the City will
in the reasonable exercise of its discretion, sell its Bonds and make the proceeds
available to the HRA for the performance of its obligations hereunder. The City
and HRA agree to provide information to Redeveloper regarding the structuring,
sizing and timing of the Bonds, and to consider comments from the Redeveloper
regarding such matters.
(03) The HRA and the City shall cooperate with Redeveloper in its efforts
to obtain all federal, state, and regional agency land use, environmental or other
regulatory approvals necessary to implement the Project, and will not unreasonably
delay consideration of or unreasonably withhold issuance of any permits, licenses or
approvals required to be given by the City or HRA in connection with the
Development.
ARTICLE III
LAND WRITEDOWN ASMANCE
Section 3.1. Statement of Intent. It is the intention of the parties that an
element of the assistance to be provided to the Redeveloper be in the nature of a
land writedown. The HRA and City have determined that the reasonably expected
reuse value of the Redevelopment Property is approximately $9,300,000 less than
the reasonably anticipated costs of acquisition of the Redevelopment Property.
That amount (hereinafter the "Land Writedown") shall be paid by the HRA to the
Redeveloper in accordance with, and subject to the limitations hereinafter
contained. It is the further intention of the parties that, except as hereinafter
qualified, title to the Redevelopment Property shall not pass to the HRA, and that,
except as hereinafter qualified, this Agreement shall not be construed so as to
create in the HRA any right, title or interest in the Redevelopment Property.
3.2. Payment of Land Writedown. The HRA agrees, subject to the
provisions thereinafter contained, the Land Writedown as follows:
(01) On the date of the Redeveloper has conveyed all of those portions of
the lands shown on the attached Exhibit intended to be used for Public
Improvements to the City, the HRA shall pay to the Redevelopment the sum of
$1,000,000.
(02) On the dates upon which the Redeveloper has acquired fee simple
title to each of the parcels which comprise the Redevelopment Property the HRA
shall pay to the Redeveloper an amount of money equal to $2,000,000 multiplied by
the percentage of the square footage of each such parcel to the tow square
footage of all of the land which comprises the Redevelopment Property, provided,
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however, that the aggregate amount of all payments made pursuant to this
paragraph (02) shall not exceed $2,000,000.
(03) Pursuant to and according to the terms and limitations of the
Repayment Agreement, a copy of which is attached hereto as Exhibit G, tk* HRA
shall pay to the Redeveloper the sum of $69300,000 together with accrued interest
at the rate stated in Exhibit G.
3.3. Conditions Precedent to Payment.
(01) Payment of the Land Writedown described in paragraph (01) of
Section 3.2 shall not be made until all of the following conditions have been met:
(a) The City has determined that the Redeveloper has obtained
and can convey marketable title to those portions of the parcels described in
Section 3.2 (01) which are to be utilized for Public Improvements.
(b) The HRA has received evidence establishing to the
satisfaction of the HRA that the Redeveloper has acquired fee simple title
to the Phase 11 Property.
(c) The 'Redeveloper has executed the Special Assessment
Agreement in substantially the form of Exhibit hereto.
(d) The Redeveloper has conveyed, at no additional consideration
the areas of lands the Phase II Property necessary for the Public
Improvements.
(OZ) Payment of the Land Writedown described in paragraph (02) of
Section 3.2 shall not be made until all of the following conditions have been met:
e
(a) The HRA has received evidence reasonably satisfactory to the
HRA that Redeveloper has obtained marketable title to any parcel for which
the Land Writedown is requested.
(b) The HRA has received evidence satisfactory to the HRA that
the Redeveloper has obtained a construction loan in an amount which,
together with Equity is sufficient to construct the Minimum Improvements,
and at least one draw has been made.
(c) The HRA has received evidence satisfactory to the HRA that
the Redeveloper has sufficient and available Equity together with financing
to construct the Minimum Improvements. If the HRA determines, in the
reasonable exercise of its discretion, that the Equity is sufficiently secured
and of sufficient amount to provide (together with committed financing) for
an amount necessary to construct the Minimum Improvements, the HRA
shall notify the Redeveloper in writing of its approval.
(d) The HRA has received evidence satisfactory to the HRA that
Redeveloper possesses the capacity to carry out Its obligations under this
Agreement. If the HRA determines, in the reasonable exercise of its
discretion, that Redeveloper possesses such capacity, it shall notify
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Redeveloper in writing of its approval. To assist the HRA in making such
determination, Redeveloper agrees to supply the HRA's legal counsel with
all reasonably necessary financial information (including financial
information relating to Redeveloper's principals) necessary for the making
ant
ext
of such determination. The HRA agrees that it will, to the maximum"
permitted by law, treat all such information as confidential.
(e) The HRA has received evidence satisfactory to the HRA that
Redeveloper has executed Construction Contracts. If the HRA, in the
exercise of its reasonable discretion, finds the Construction Contract to be
of a guaranteed fixed price, contain a contractors performance bond and
provide for construction of the improvements, it shall notify the
Redeveloper in writing of its approval. The HRA agrees to waive the
performance bond requirement if it determines that the contractor
possesses sufficient financial strength to perform the contract without such
bond.
(f) The HRA has received evidence satisfactory to the HRA that
at least 70% of the rentable space in Redevelopment has been leased.
(g) The HRA has received evidence satisfactory to the HRA
concerning the steps which Redeveloper will take to obtain all necessary
subdivisions, platting, registered land surveys, land registrations or
subsequent proceedings.
(h) The HRA has received evidence reasonably satisfactory to the
HRA that the Redeveloper has acquired marketable fee simple title to the
Phase II Parcel.
(1) All other actions, submittals or approvals required by this
Agreement to be performed or made by Closing.
(j) Redeveloper has obtained a building permit for construction of
the Minimum Improvements.
3.4. Time For Redeveloper to Satisfy Conditions Prece ent. All conditions
precedent to payment must be satisfied not later than 30 days prior to the date on
which payment is to be made. In the event that all conditions precedent to have
not been satisfied or expressly waived by the HRA in writing by 60 days prior to
the date on which the City intends to advertise for bids on the Public
Improvements (with respect to the payments described in Section 3.2(01), or by
December, 1990 (with respect to payments described in Section 3.2(02), the HRA
may notify the Redeveloper in writing of the failure to meet such condition or
conditions. The Redeveloper shall have 30 days from the date of such notice to
satisfy the condition or conditions to which such notice relates. If the Redeveloper
fails to satisfy such condition or conditions within such time, the HRA shall be
relieved of its obligation to make the Land Writedown payment provided for in the
paragraph of 3.2 to which the unsatisfied condition relates. Redeveloper may at
anytime prior to the above mentioned dates, submit evidence that a condition
precedent has been satisfied, the HRA shall promptly review such submittal and
notify Redeveloper in writing whether the precondition has been satisfied, and if
not, the reasons for rejection. Redeveloper shall then have until the above
mentioned dates to make further resubmittals to the HRA for its consideration.
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P.10
3.5. Other Conditions Precedent. In addition to the preconditions to
Closing contained in Section 3.4, no payment of the Land Writedown described in
Section 3.2(02) shall not take place until:
(01) The City and HRA have entered into a tax increment agreement
providing for the use of any bond proceeds /by the HRA and the pledge of the HRA's
tax increment to repay the Bonds.
(02) The City has received the proceeds from the sale of tax increment
bonds having sufficient net proceeds to fund the purchase price described in
Section 3.2(02).
(03) A replat of the Redevelopment Property, if such is necessary, has
been approved by the City and filed of record.
(04) All required land use approvals consistent with the intended uses have
been obtained.
3.5A.
3.6. Sale of Bonds. The payment of the Land Writedown described in
Section 3.2(02) is intended to be made through proceeds derived from the sale of
bonds At such time as the City and HRA have taken such actions and done all
things required by them by law as preconditions to the We of such bonds, and the
Redeveloper has performed all of its obligations pursuant to Section 3.3(02), the
City shall undertake, in the reasonable exercise of its discretion to sell and issue
its bonds in an amount sufficient to generate net proceeds in the amount of
$29000,000. Nothing in this Section shall be deemed to require the City to sell such
bonds, if in the reasonable exercise of its judgment, it determines that the tax
increment generated from the TIF District is not sufficient to amortize the Bonds
within a term of years acceptable to the City.
3.7. Alternative Conveyancing Procedure. The parties shall proceed in
accordance with the provisions of this Section in the event that the Redeveloper
shall notify the City on or before June 1, 1990, that the Redeveloper has been
unable to acquire all or some of the Redevelopment Property or the Phase II
Parcel.
(01) The HRA shall proceed to have each such parcel or parcels appraised
and, upon receipt of such appraisals shall inform the Redeveloper of the market
value indicated by the appraisal. Such appraisal shall include the value of the real
estate together with the value of all immovable fixtures located thereon.
(02) The HRA shall proceed at the same time to determine the amount of
relocation benefits which may be payable with respect to the acquisition of each
such parcel and shall notify the Redeveloper of such determination.
(03) The Redeveloper shall have 30 days from the date of the notifications
described in (01) and (02) above to (1) deposit with the HRA an amount (with
respect to each such parcel) equal to the appraised value and the anticipated
relocation costs together with the cost' of such appraisal and relocations reports
and the anticipated legal and staff costs necessary to acquire such parcel, or (ii) to
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notify the HRA of Redeveloper's intention to continue to negotiate the acquisition
subject to the time limitations contained in Section 3.4. (Note: Need time limit for
p.2.)
(04) If the Redeveloper acts pursuant to (03)(i) above, with respeet`to any
parcel the HRA shall in good faith undertake the steps to seek to acquire fee
simple absolute title to such parcel at the earliest possible time through use of the
means available to it, including, to the extent necessary, the use of its eminent
domain power. The deposit described in (03)(1) above may be used by the HRA for
those purposes. The HRA shall have no obligation other than to act in good faith,
to utilize its best efforts and take all reasonable steps to attempt to acquire title.
(05) If the Redeveloper fails to elect to proceed in either of the manners
described in (03) with respect to any parcel, the HRA shall have no obligation to
acquire such parcel, and the HRA may at its option terminate this Agreement. If
the Redeveloper elects to proceed in accordance with (OVi, and in unable, for
whatever reason to acquire such parcel or parcels and to satisfy the conditions
precedent within the time periods contained in Section 3.4 (with respect to the
Redevelopment Property) or by December 11 1990, with respect to the Phase 'll
Property, the HRA may, at its option terminate this Agreement.
(08) In the event that the parties are proceeding in accordance with (03)(1)
above and the HRA's cost to acquire and/or relocate with respect to any parcel
(including legal and other consultant costs) exceeds the total monies deposited with
the HRA with respect to such parcel, the Redeveloper shall have 10 days from
notification of the amount of the overrun to deposit the amount of such overrun
with the HRA, if the Redeveloper fails to make such deposit, the HRA may
discontinue its action to acquire such parcel and may at its option terminate this
Agreement.
3.8. Relationship of Sections.
(01) Any parcel of the Redevelopment Property which is acquired by the
HRA pursuant to Section 3.7(04) shall be disposed of in accordance with the
following provisions (to the extent applicable).
(a) The portions of the lands described in Section 3.2(01) which
are to be used for Public Improvements shall be conveyed by the HRA to the
City. The ;19000,000 Land Writedown described in Section 3.2(01) shall not
be paid to the Redeveloper until and unless (i) the Public Improvements of
all parcels described in Section 3.2(01) have been conveyed to the City
(whether by the Redeveloper following purchase or by the HRA following
condemnation), and (ii) the other preconditions described in 3.3(01) have
been met within the time limits provided.
(b) other parcels or portions of parcels shall be conveyed to the
Redeveloper upon acquisition by the HRA, provided, however, that the Land
Writedown with respect to each such parcel described in Section 3.2(02)
shall not be paid until and unless all of the preconditions to such payment
contained in Sections 3.3(02) and 3.5 have been satisfied within the time
provided for such satisfaction.
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(02) The Phase II Site shall be conveyed to the Redeveloper upon
acquisition by the HRA, provided, however, that prior to such conveyance, the
HRA shall convey to the City those areas of land within the Phase II Property to be
used for Public improvements. a
3.9. Failure to Aeeuire. If all of the Phase II Property and all of the
Redevelopment Property has not been acquired (by the HRA or the Redeveloper as
the case may be) by December 1, 1990, either the HRA or the Redeveloper may at
its option, terminate this Agreement, the Assessment Agreement, and the
Repayment Agreement whereupon all the parties hereto shall be released and
forever discharged from any further obligation thereunder, provided, however, that
the HRA shall immediately convey any parcels acquired by it to the Redeveloper,
and provided further that if the City has either sold bonds to finance the cost of
the Public Improvements or entered into contracts for construction of the same,
the Redeveloper shall remain bound to the terms of the Special Assessment
Agreement.
3.10. Redeveloper's Special Termination Right. The right, obligations and
duties of the parties contained in this Agreement are expressly made subject to the
special right of the Redeveloper, which exists from the date of this agreement and
for 120 days thereafter, to cancel and terminate this Agreement by written notice
given, to the HRA within such period stating that the Redeveloper has been unable
to obtain assurances of financing deemed adequate by the Redeveloper to allow it
to carry out the activities contemplated by this Agreement. Any actions or
performances required by any party under this Agreement to be performed prior to
the expiration of such period shall be suspended during the period or until the HRA
has received notice from the Redeveloper that it has received adequate assurances
of financing. Upon either such event, the parties shall, at such time, in good faith,
determine what modifications, if any, should be made to the various performance
dates contained in this Agreement.
ARTICLE IV
CONSTRUCTION OF MINIMUM IMPROVEMENTS
Section 4.1. Agreement to Construes. Subject to the acquisition of the
Redevelopment Property, the Redeveloper agrees that it will construct the
Minimum Improvements in accordance with the approved Concept Plans.
4.2. Demolition. The Redeveloper shall, at its sole expense, raze and
remove all structures on Redevelopment Property including any abandoned City
utilities.
4.3. Soil CorreetiQn. The Redeveloper shall have the sole responsibility to
make any necessary $oil correction. Neither the HRA nor the City has made any
representations concerning the nature of soils, the suitability of such soils for the
Minimum Improvements, or the cost of correcting any unsuitable soil conditions.
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4.4. Concept Plans. Within thirty (30) days after execution of this
Agreement by the Redeveloper, the Redeveloper shall submit schematic Concept
Plans including a marketing plan and tenant mix projections and the anticipated
dates for commencement and completion of construction. The Concept Plans shall
depict the Minimum Improvements and shall be in conformity with this Agreement,
and all applicable state and local laws and regulations. The HRA shall approve the
Concept Plans if they (a) conform to the terms and conditions of this Agreement;
(b) conform to all applicable federal, state, and local law, ordinances, rules and
regulations; (c) describe in reasonable detail the Minimum Improvements; (d) the
Minimum Improvements described in the Concept Plans together with the indicate
a Minimum Market Value, in the opinion of the Assessor of at least ;33,500,000;
and (e) the Concept Plans do not indicate the need for expenditures in excess of the
funds available to the Redevelopers for construction of the Minimum
Improvements. No approval by the HRA shall relieve the Redeveloper of the
obligation to comply with the terms of this Agreement, the terms of the
Redevelopment Plan, applicable federal, state and local laws, ordinances, rules and
regulations, or to construct the Improvements. The HRA reserves the unrestricted
right to reject the Concept Plans if in its sole discretion the HRA determines that
the above referenced conditions have not been met. Such Concept Plans shall, in
any event, be deemed approved unless rejected in writing by the HRA, in whole or
in part. Such rejection shall set forth in detail the reasons therefor, and shall be
made within twenty (20) days after the date of their receipt by the HRA. If the
KRA `rejects the Concept Plans in whole or in part, the Redeveloper shall submit
new or corrected Concept Plans within twenty (20) days after written notification
to the Redeveloper of the rejection. The provisions of this Section relating to
approval, rejection, and resubmission of corrected Concept Plans shall continue to
apply until the Redevelopment Plans have been approved by the HRA, provided,
however, that if the Concept Plans have not been approved within ninety (80) days
after the date of this Agreement, this Agreement shall be null and void and the
parties hereto shall thereby be relieved of any further obligation or liability
hereunder.
If the Redeveloper desires to make any change in the Concept Plans after
their approval by the HRA, the Redeveloper shall submit the proposed change to
the HRA for its approval. If the Concept plans, as modified by the proposed
change, conform to the requirements of this Section with respect to such
previously approved Concept Plans, the HRA shall approve the proposed change and
notify the Redeveloper in writing of its approval. Such change in the Concept
Plans shall, in any event, be deemed approved by the HRA unless rejected, in whole
or in part, by written notice by the HRA to the Redeveloper, setting forth in detail
the reasons therefor. Such rejection shall be made within twenty (20) days after
receipt of the notice of such change.
Final construction plans and specifications shall be reviewed by the City
Building Inspector in connection with issuance of building permits. No building
permit may be issued if the final construction plans and specifications materially
depart from the approval Concept Plans.
4.5. Commencement and-Completion of Construction. The Redeveloper
shall complete the construction of all o the Minimum Improvements within
U months after commencement of construction.
"Commencement of construction" shall mean, for the purpose of this Agreement,
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the date upon which the Redeveloper has commenced soil correction procedures.
All work with respect to the Minimum Improvements to be constructed or provided
by the Redeveloper shall be in conformity with the Concept Plans as submitted by
the Redeveloper and approved by the HRA. %
The Redeveloper shall not be considered in breach of, or default` in, its
obligations with respect to the commencement and completion of construction of
the Minimum Improvements, if the occurrence of an Unavoidable Delay requires
extension of the time or times for performance of the Redeveloper with respect to
construction of the Minimum Improvements provided, that the Redeveloper shall,
within fifteen (15) days after the beginning of any such Unavoidable Delay, have
notified the HRA thereof in writing, and of the cause or causes thereof, and
further provided that the excused delay in performance may not exceed the
duration of the Unavoidable Delay, and further provided that such excused delay
may not operate to relieve Redeveloper of its obligation to complete within the
time period provided for in the Assessment Agreement.
4.6. Construction Resorts. During construction the Redeveloper shall
make reports at such times and in such detail as may be reasonably requested by
the HRA concerning the progress of construction.
4.7. Certificate of Com21e119n. Promptly after notification by the
Redeveloper of completion of the Minimum Improvements contemplated by the
Concept Plans, the HRA shall inspect the construction to determine whether such
Minimum Improvements are completed substantially in accordance with the terms
of this Agreement. If the HRA is satisfied, it will furnish the Redeveloper with a
Certificate of Completion. Such certification by the HRA shall, except as further
provided in this Section 4.7, be a conclusive determination of satisfaction and
termination of the agreements and covenants in this Agreement, and in the Deed
with respect to the obligations of the Redeveloper to construct the Minimum
Improvements.
The certification provided for in this section shall be in recordable form. If
the HRA shall refuse or fail to provide the Redeveloper a certification in
accordance with the provisions of this Section 4.7, the HRA shall, within thirty (30)
days after written request by the Redeveloper, provide the Redeveloper with a
written statement, indicating in adequate detail in what respects the Redeveloper
have failed to complete the Minimum Improvements in accordance with the
provisions of this Agreement, or are otherwise in default, and what measures or
acts it will be necessary, in the reasonable opinion of the HRA, for the
Redeveloper to take or perform in order to obtain such certification.
ARTICLE V
PUBLIC IMPROVEMENTS
Section 5.1. Utility Relocation a Public Im rovement . (a) Within the
time period set forth n tion 3.8, the City will provide the Redeveloper with
plans showing the proposed relocation of all public utilities, and the location and
nature and schedule for construction of all Public Improvements to be constructed
by the City in connection with the Project as described in Exhibit F, together with
the City's estimate of the cost of all such work.
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(b) The Redeveloper shall review such plans and specifications and cost
estimates and notify the City within ten (10) days after receipt whether they are
approved. Upon such approval, the Redeveloper agrees to Petition the City for
construction of the Public Improvements pursuant to Minnesota Statutes Section
429.031, Subd. 3, and to execute, along with all other owners and eneumbragcers of
the Redevelopment Property, and deliver to the HRA the Special Assessment
? The Petition and the Special Assessment
Agreement, attached hereto as Exhibit J.
Agreement shall be executed by the Redeveloper and shall be delivered to the HRA
not later than the date of Closing. A copy of the executed Petition shall be
delivered to the City at least five (5) days prior to the date of Closing for its
approval as to form and content. In the Petition, which shall be on a form provided
by the City, the Redeveloper shall waive its right to question the validity or
amount of any such special assessments under Minnesota Statutes Section 429.031,
Subd. 3. Upon receipt of the Petition, and execution of the Special Assessment
Agreement, the City agrees to conduct the necessary proceedings for the
construction of the Public Improvements pursuant to Minnesota Statute Chapter
429.
ARTICLE VI
INSURANCE
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Section 6.1. Insurance. It is contemplated by the parties that the
construction of the Minimum Improvements will be financed in part by private
mortgage financing. The insurance required to be carried pursuant to the financing
documents executed by the Redeveloper and the construction lenders shall be
deemed to satisfy this Agreement. This Section 6.1 shall not be deemed, however,
to relieve the Redeveloper of any of its obligations contained in Section 4.6 of this
Agreement or of its obligation under the Assessment Agreement.
ARTICLE VII
TAX INCREMENT
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Section 7.1. Binding Obligations. The obligations in this Section 7.1 shall
run with the land and be binding upon Redeveloper's successors and assigns in
interests to the Redevelopment Property.
(01) Assessment Agreement. On or before , the
HRA and the Redeveloper shall, execute the Assessment Agreements and
Certification of Assessor in the form contained in Exhibit D. The HRA shall then
present the Assessment Agreements to the Assessor or his certification. The
Assessor shall value the Redevelopment Property Minimum Improvements and
assign a Market Value to the land and Minimum Improvements which shall not be
less than the minimum market value contained in the Assessment Agreement. The
Market Value so established may, in the discretion of the Assessor exceed the value
contained in the Assessment Agreement.
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(02) Review of Taxes. Except as otherwise provided in this Agreement,
the Redeveloper shall pay all real property taxes and special assessments assessed
against the property. The Redeveloper agrees that prior to the Maturity Date: (1)
It will not seek administrative review or judicial review of the applicability Af any
tax statute determined by any tax official to be applicable to the Redevelopment
Property or the Redevelopers or raise the applicability of any such tax statute as
defined in any proceedings including delinquent tax proceedings; (2) it will not seek
administrative review or judicial review of the constitutionality of any such tax
statute determined by any tax official to be applicable to the Redevelopment
property or the Redeveloper or raise the unconstitutionality of such tax statute as
a defense in any proceedings, including delinquent proceedings; (3) it will not
request the Assessor to reduce the assessed market value or assessed value of all or
any portion of the Redevelopment Property; (4) it will not petition the board of
equalization of the City or the board of equalization of the County to reduce the
assessed market value or tax capacity of all or any portion of the Redevelopment
Property; (5) it will not petition the board of equalization of the State or
commissioner of revenue of the State to reduce the assessed market value or
assessed value of all or any portion of the Redevelopment Property; (6) it will not
commence an action in a District Court of the State or the Tax Court of the State
pursuant to Minnesota Statutes, Chapter 278, seeking a reduction in the assessed
market value or assessed value of all or any portion of the Redevelopment
Property; (7) it will not make an application to the commissioner of revenue of the
State requesting an abatement of real property taxes pursuant to Minnesota
Statute, Chapter 270 with regard to Minimum Market Value; and (S) it will not
commence any other proceedings, whether administrative, legal or equitable, with
any administrative body within the City, the County, or the State or with any court
of the State or the Federal Government. The Redeveloper shall not, prior to the
_ Maturity Date, apply for a deferral of property tax on the Property pursuant to the
Act. Nothing contained herein shall be deemed to limit the right or opportunity of
the Redeveloper to challenge that part of any valuation or the Market Value which
is in excess of the stipulated value contained in the Assessment Agreements.
ARTICLE VIII
FINANCING
Section 8.1. Limitations Upon Encumbrance. prior to the completion of
the Minimum Improvements, as certified by the HRA pursuant to Section 4.8 of
this Agreement, neither the Redeveloper nor any successor in interest to the
Redevelopment Property or any part thereof shall engage in any financing or any
other transaction creating any mortgage or other encumbrance or lien upon the
Redevelopment Property or any part thereof, whether by express agreement or
operation of law, or suffer any encumbrance or lien to be made on or attached to
the Redevelopment Property or any part thereof, except only for the purpose of
obtaining funds to the extent necessary for making the Minimum Improvements.
8.2. Cow of Notice of Default to Lender. Whenever the HRA shall
deliver any notice or demand to the Redeveloper with respect to any breach or
default by the Redeveloper in its obligations under this Agreement, the HRA `hall
at the same time forward a copy of such notice or demand to each holder
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("Holder'l known to the HRA of any mortgage or other financing agreement
authorized by this Agreement by sending such notice to last known address of the
Holder as shown in the records of the HRA.
8.3. Lender's Option to Cure Defaults. After any breach or event of
default referred to in Section 10.1 hereof, each Holder shall (insofar as thi rights
of the HRA are concerned) have the right for a period of ninety (90) days, at the
Holder's option, to cure or remedy such breach or event default to the extent that
it relates to the part of the Redevelopment Property covered by its financing and
to add the cost thereof to the debt and the lien of its financing; provided, that if
the breach or event of default is with respect to construction of the Minimum
Improvements, nothing contained in this Section or any other section of this
Agreement shall be deemed to permit or authorize such Holder, either before or
after foreclosure or action in lieu thereof, to undertake or continue the
construction or completion of the Minimum Improvements (beyond the extent
necessary to conserve or protect such Improvements or construction already made)
without first having expressly assumed the Redeveloper's obligations described in
Section 10.2 hereof by written agreement reasonably satisfactory to the HRA, to
complete the Minimum Improvements or the part thereof to which the lien or title
of such holder relates, provided further, however, that the HRA will not
unreasonably withhold its consent to any changes in the Minimum Improvements
which are requested by the Holder if the requested changes do not alter the basic
design of the Minimum Improvements or result in a decrease of the Market Value
below the minimum market value stipulated to in the Assessment Agreement. Any
such Flolder who shall perform the Redeveloper's obligations under Section 4.6
hereof, relating to the Redevelopment Property or applicable part thereof, shall be
entitled, upon written request made to the HR.A, to a certification by the HRA to
such effect in the manner provided in Section 4.8 of this Agreement.
8.4. H_ RA's Option to Cure Default. If the Redeveloper is in default under
any financing authorized pursuant to Article VIII of this Agreement, the Holder,
prior to exercising any of its remedies, shall notify the HRA In writing by sending
it a copy of any notice of default sent to the Redeveloper. If, within thirty (30)
days after receipt of said notice, the HRA cures the default, then the Holder shall
pursue none of its remedies under the financing based upon the said default of the
Redeveloper.
8.5. Subordination. In order to facilitate the obtaining of financing for
the construction of the Minimum Improvements by the Redeveloper, the BRA
agrees to modify and to subordinate its right under this Agreement to the mortgage
or other financing agreement held by the financial institution providing such funds,
provided, however, that nothing in this Section 8.5 shall be deemed to require the
HRA to agree to any modification or subordination of its rights which in its
judgment would be contrary to its best interests nor to any modification which
would release any financial Institution or any successor or assign of such financial
institution from its obligations as described in Section 10.8(04)0 should such
financial institution or successor or assign acquire title to the Redevelopment
Property, or any part thereof by foreclosure or a deed in lieu of foreclosure.
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ARTICLE IX
PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER
Section 9:1. Representation as to Development. The Redeveloper
represents and agrees that its undertaking pursuant to the Agreement are, and will
be used, for the purpose of development of the Redevelopment Property and not
for speculation in land holding. The Redeveloper further recognizes that, in view
of (a) the importance of the development of the Redevelopment Property to the
general welfare of the community; and (b) the substantial financing and other
public aids that have been made available by the City and the HRA, for the purpose
of making such development possible; that the qualifications and identify of the
Redeveloper are of particular concern to the community and the HRA. Any
significant change with respect to the identify of the Redeveloper or the purchase
of Redeveloper's interest by any other party or parties is for practical purposes a
transfer or disposition of the property then owned by the Redeveloper, the
Redeveloper further recognizes that it is because of such qualifications and
identify that the HRA is entering into this Agreement with the Redeveloper and, in
so doing, is further willing to accept and rely on the obligations of the Redeveloper
for the faithful performance of all undertakings and covenants hereby then to be
performed.
9.2) Prohibition Against Transfer of Interest Bind Individually - For the
foregoing reasons, except as provided in Section 9.3 of this Agreement, the
Redeveloper represents and agrees that: prior to completion of the Minimum
Improvements as certified by the HRA, and without the prior written approval of
the HRA, (a) there shall be no transfer of any interest in all or a portion of the
Redevelopment Property, (b) nor shall the Redeveloper suffer any such transfer to
be made, (c) nor shall there be or be suffered to be by the Redeveloper, any other
similar significant change in the ownership of any corporate stock of the
Redeveloper or in the relative distribution thereof, or with respect to the identify
of the parties in control of the Redeveloper or the degree thereof, by any other
method or means, whether by increased capitalization, merger with another
corporation, corporate or other amendments, issuance of additional or new stock or
classification of stock, or otherwise. A transfer of corporate stock by operation of
law resulting from the death or legal incompetency of a stockholder shall not be
deemed to violate the prohibitions of this Section 9.2.
9.3) Prohibition Against Transfer of Property and Assignment of
Agreement. For the foregoing reasons, the Redeveloper represents and agrees
that:
(01) Except only by way of security for, and only for, the purpose of
obtaining financing necessary to enable the Redeveloper or any successor in
interest to the Redevelopment Property, or any part thereof, to perform its
obligations with respect to making the. Minimum Improvements under the
Agreement, and any other purpose authorized by the Agreement, the Redeveloper
(except as so authorized) has not made or created, and that it will not make or
create, or suffer to be made or created, any total or partial sale, assignment,
conveyance, or any trust or power, or transfer in any other mode or form of or with
respect to the Agreement or the Redevelopment Property or any part thereof or
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any interest therein, or any contract or agreement to do any of the same, without
the prior written approval of the HRA.
(02) The HRA shall be entitled to require, except as otherwise provided in
the Agreement, as conditions to any such approval that: (1) any proposed trm6feree
shall have the qualifications and financial responsibility, as determined by the
HRA, necessary and adequate to fulfill the obligations undertaken in the
Agreement by the Redeveloper (or, in the event the transfer is of or relates to part
of the Redevelopment Property, such obligations to the extent that they relate to
such part); (ii) any proposed transferee, by instrument in writing satisfactory to the
HRA and in form recordable among the land records, shall for itself and its
successors and assigns, and expressly for the benefit of the HRA, have expressly
assumed all of the obligations of the Redeveloper under the Agreement and agreed
to be subject to the terms of the Redevelopment Plan (or, in the event the transfer
is of or relates to part of the Redevelopment Property, such obligations,
conditions, and restrictions to the extent that they relate to such part); provided,
that the fact that any transferee of, or any other successor in interest whatsoever
the reason, shall have assumed such obligations or agreed, shall not (unless and only
to the extent otherwise specifically provided in the Agreement or agreed to in
writing by the HRA) relieve or except such transferee or successor of or from such
obligations, conditions, or restrictions, or deprive or limit the HRA or with respect
to any rights or remedies or controls with respect to the Redevelopment Property
or the construction of the Minimum Improvements; it being the intent of this,
together with other provisions of the Agreement, that (to the fullest extent
permitted by law and equity and excepting only in the manner and to the extent
specifically provided otherwise in the Agreement) no transfer of, or change with
respect to, ownership in the Redevelopment Property or any part thereof, of any
interest therein, however consummated or occurring, and whether voluntary or
involuntary, shall operate, legally or practically, to deprive or limit the HRA of or
with respect to any rights or remedies or controls provided in or resulting from the
Agreement with respect to the Property and the construction of the Minimum
Improvements that the HRA would have had, had there been no such transfer or
change; (iii) there shall be submitted to the HRA for review all instruments and
other legal documents involved in effecting transfer; and if approved by the HRA
Its approval shall be indicated to the Redeveloper in writing.
In the absence of specific written agreement by the HRA to the contrary, no
such transfer or approval by the HRA thereof shall be deemed to relieve the
Redeveloper, or any other party bound in any way by the Agreement or otherwise
with respect to the construction of the Minimum Improvements, or from any of its
obligations with respect thereto. The HRA may, however, in its reasonable
discretion exercised in accordance with the standards and requirements of Section
9.8(02) relieve Redeveloper if they present a transferee or assignee acceptable to
the HRA.
9.4) Information as to Stockholders or Partners. In order to assist in the
effectuation o the purposes of this Article IX of this Agreement, the Redeveloper
agrees that during the period between the execution of the Agreement and
completion of the Minimum Improvements as certified by the HRA, (a) the
Redeveloper will promptly notify the HRA of any and all changes whatsoever in the
ownership of stock or partnership interests, legal or 'beneficial which in the
aggregate exceed ten percent (10%) of the issued stock or partnership interests in
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Redeveloper, or of any other act or transaction involving or resulting in any change
in the ownership or stock or partnership interests of such Redeveloper or in the
relative distribution thereof, which in the aggregate exceeds ten percent (10%) of
the issued stock or partnership interests of Redeveloper, and (b) Redeveloped shall,
at such time or times as the HRA may request, furnish the HRA with a c?mplete
statement, subscribed and sworn to by the President, general partner, or other
executive officer of Redeveloper, setting forth all of the stockholders or partners
of Redeveloper and the extent of their respective holdings, and in the event any
other parties have a beneficial Interest in s?qh stock or partnership interest, their
names and the extent of such interest, all as determined or Indicated by the
records of Redeveloper, by specific inquiry made by any such officer, of all parties
who on the basis of such records own ten percent (10%) or more of the stock or
partnership interest of Redeveloper, and by such other knowledge or Information as
such officer shall have.
9.5) Approvals. Any approval required to be given by the HRA under this
Article IX of this Agreement may be denied only in the event that the HRA
reasonably determines that the performance of the obligations of Redeveloper
under this Agreement will be materially impaired by the action for which approval
is sought. At the HRA's request, the Redeveloper shall provide to the HRA's
attorney for privileged review on behalf of the HRA financial information as to any
proposed general partners, or controlling stockholders of proposed assignees or
transferees, and financial information as to any such partnership or corporation.
ARTICLE X.
EVENTS OF DEFAULT
10.1) Events of Default Defined. The following shall be "Events of Default"
under this Agreement and the term "Event of Default" shall mean, whenever it is
used in this Agreement (unless the context otherwise provides), any one or more of
the following events:
(01) Failure by the Redeveloper to pay when due any payments required to
be paid under Article III and Sections 4.10 and 7.1 of this Agreement.
(02) Sub)ect to Unavoidable Delay, failure by the Redeveloper to observe
and substantially perform any covenant, conditions, obligation, or agreement on its
part to be observed or performed hereunder.
(03) If the Redeveloper shall admit in writing its inability to pay its debts
generally as they become due, or shall file a petition in bankruptcy, or shall make
an assignment for the benefit of creditors, or shall consent to the appointment of a
receiver of themselves or of the whole or any substantial part of the Redeveloper
Property.
(04) If the Redeveloper shall file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws.
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(05) If the Redeveloper, on a petition in bankruptcy filed against them, be
adjudicated a bankrupt, or a court of competent jurisdiction shall enter an order of
decree appointing, without the consent of Redeveloper, a receiver of Redeveloper
or of the whole or substantially all of its property, or approve a petition filed
against Redeveloper seeking reorganization or arrangement of Redeveloper under
bankruptcy laws, and such adjudication, order, or decree shall not be vaeat*d or set
aside or stayed within sixty (60) days from the date of entry thereof.
(06) If the Redeveloper is in default under any mortgage and fails to cure
any such default within thirty (30) days after written demand from the HRA to do
so.
(07) If the real estate taxes are not paid when due.
10.2) Remedies on Default. Whenever any Event of Default referred to in
Section 10.1 o this Agreement occurs, the HRA may, in addition to any other
remedies or rights given the HRA under this Agreement, but only after at least
thirty (30) days notice to the Redeveloper and its failure to cure (unless a different
cure period is provided with respect to specific defaults under this Agreement),
find the Redeveloper in default (Default) and take any one or more of the following
actions:
(01) Suspend its performance under the Agreement until it receives
assurances from the Redeveloper or mortgagee reasonably deemed adequate by the
HRA, that the Redeveloper will cure the default and continue performance under
the Agreement.
(02) Cancel pursuant to Minnesota Statutes Section 559.21, and rescind
the Agreement, in which case the 33O day cure period shall commence with notice
of cancellation.
(03) Withhold the Certificate of Completion It the Event of Default
relates to the failure of the Redeveloper to complete the Improvements as
provided in this Agreement.
(04) Take whatever action at law or in equity may appear necessary or
desirable to the HRA to collect any payments due under this Agreement, or to
enforce performance and observance of any obligation, agreement or covenant of
the Redeveloper under this Agreement.
Provided, however, that any exercise by the HRA, its successors or assigns,
of its right or remedies hereunder shall always be subject to and limited by, and
shall not defeat, render invalid or ilimit in any way (a) the lion of any imo`r¦¦tg`ag`e?
authorized by this 1greement and ILI any rigUs or 1,4604A WY191 It a Al
Agreement for the protection of the Holder of such mortgages. Provided further,
however, that should any Holder succeed by foreclosure of the mortgage or deed in
lieu thereof, to Redeveloper's interest in the Redevelopment Property or any part
thereof, it shall, notwithstanding the foregoing provision, be obligated and shall
agree in writing to perform all of the obligations of the Redeveloper, to the extent
that the same have not theretofore been performed by the Redeveloper with
respect to the Redevelopment Property or part thereof, set forth in Article His
20
Article IV, Article V and Article VII. Said Holder shall have no obligations pursuant
to this Agreement other than as specifically set forth in the foregoing sentence.
10.2.1) Right to Dev to the Pro ec with Others. In the event toat this
Agreement Is terminated, cancelled or rescinded for any cause provided in Sections
10.1 or 3.8(01) of this Agreement or any other provisions which providek for or
triggers the right of termination, cancellation, or rescission by the HRA or City
upon any breach by the Redeveloper, the HRA and the City shall have the further
right to proceed with the Development or any part thereof with any contractor or
any other individual or entity selected by the HRA. The HRA and the City shall
have the right to obtain and use, at no cost to them, all plans, specifications,
studies, reports and other data prepared by the Redeveloper or at the
Redeveloper's direction for the Development or any phase thereof. It is expressly
agreed that the consideration for rights conferred upon the City and the HRA
under this Section 1.2.1 including business opportunity and other valuable
consideration are independently adequate to create a binding obligation under this
Section 10.2.1 and that such obligation shall survive the cancellation, rescission, or
termination of this Agreement.
10.3) No Remedy Exclusive. No remedy herein conferred upon or reserved
to the HRA 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. Except as provided in Section 10.5 of this Agreement,
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 HRA or the Redeveloper 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 X.
10.4.) No Additional Waiver Implied by One Waiver. In the event any
obligation 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.
ARTICLE RI.
ADDITIONAL PROVISIONS
.
11.1) Conflict of Interest g HRA Re resentativ Not Individ all Liable
No member, o eial, or employee o the HRA shall have any personal interest;
direct or indirect, in the Agreement, nor shall any such member, official, or
employee participate in any decision relating to the Agreement which affects his
personal interests or the interests of any corporation, partnership, or association in
which he is, directly or indirectly, interested. No member, official, or employee of
the HRA shall be personally liable to the Redeveloper, or any successor in interest,
In the event of any default or breach by the HRA or for any amount which may
become due to the Redeveloper or successor or on any obligations under the terms
0 of the Agreement.
21
APR 13 '90 13:55 HOLMES a GRAVEN
P.23
t Lutes Section
of HIP t§2?4 11.2) Nond rimi tion. The d no?iscrimination, shall be nsidered a
181.59, which relate to ei rig is set forth herein. ??
part of this Agreement as though fullY revisions of this
11.3) Prov ins Not Mer With Deed. None of the p
1 be merged by reason of any Deed
Agreement are Mended to ?a of the Property and any such Deed shall not
transferring any interest in any p Unless Otherwise
deemed to affect or impair the provisions of this Agreement-shall Agreement tshall binding upon
indicated in this Agreement, the provisions of this Agra be i
the successors and assigns of the parties hereto.
11.4) Notice of Stat and Conf r anee. The HRA agrees that from time
to time, upon not less than ten 10) days prior written notice by Redeveloper, to er or
any execute, acknowledge and deliver, without ?ing a Redd elopto the ext nt rsoe tru
designated by Redeveloper, a statement
that this Agreement is unmodified, the principal amountnotiee o! dligati n herein
created then unpaid, that the HRA has not received any , that to the
the knowledge of the HRA has not received
exists hereunder (off any such event of
knowledge of the HRA no event of default
default does exist, specifying the same and stating that the same has been cured, if the such be the case), that the KRA to s information reasonably claims by the
Redeveloper hereunder, and any other ism Redeveloper. It is the intention otlhthis ich Section be 11.4
requested provide
by Redhe a open s
obtaining estoppel certificates iv
mortgagee.
11.5) Use of Tax Increment. Because the Redeveloper is willing to receive
a substantial portion of the Land Writedown over time out of the Tax Incremente
generated from the Redevelopment Property and the Phase U Parcel, it is
important that the HRA and Redeveloper reach an understanding concerning how
the tax increment from the District will be allocated among the Bonds and the
Repayment Note. The attached Exhibit represents the manner of allocation
which the HRA will attempt to make.
11.5A) N otiation Agreement Terminated. The Negotiation Agreement
among the parties hereto dated November 201 19899 is hereby terminated and
cancelled, and all parties are forever released and discharged from their
obligations thereunder.
11.6) Notices and Demands. Except as otherwise expressly provided in this
Agreement, a notice, demand, or other communication under the Agreement by
either party to the other shall be sufficiently return re eIt If to dispatch°
by registered or certified mail, postage prepaid,
delivered personally.
As to the HRA: Housing and Redevelopment Authority
6700 Portland Avenue South
Richfield, Minnesota 55423
Attention: Executive Director
As to the Redeveloper:
Attention:
22
APR 13 '90 13:56 HOLMES & GRAVEN P.24
0 As to the City: City of Richfield
6700 Portland Avenue South
Richfield, Minnesota 55423 <<
Attention: City Manager
or at such other address with respect to either such party as that party may, from
time to time, designate in writing and forward to the other.
11.7. Counterparts. This Agreement may be simultaneously executed in any
number of counterparts, all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as
of the day and year first above written.
THE HOUSING AND REDEVELOPMENT
AUTHORITY OF THE CITY OF
RICHFIELD, MINNESOTA
By:
Its:
0. By:
Its: Executive Director
CITY OF RICHFIELD
By:
Its:
By:
Its: City manager
(REDEVELOPER)
By:
Its:
RC125-006
23
STATE OF MINNESOTA
COUNTY OF
<<
day of
The foregoing instrument was acknowledged before me this
and v
1990, by
the Chairperson and Executive Director o the Housing and Redevelopment
Authority in and for the City of Richfield, Minnesota.
Notary Public
•
STATE OF MINNESOTA } as
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
1990, by and
the and City Manager of the City of Richfield, Minnesota, a
municipal corporation under the laws of the state of Minnesota, on behalf of the
municipal corporation.
Notary Public
STATE OF MINNESOTA
COUNTY OF
)
)as
The foregoing instrument was acknowledged before me this day of
and
19901 by , on behalf o the
respectively, of
Redeveloper.
Notary Public
•
24
-APR 13 190 13:57 H LMES & GRAVEN
•
4
TAX INCR KINT ALLOCATION
et t o! Oblisdim Tax increment sbeu be annually allocated to Pay
o bto oaa in me ouovtng order of priority-
(a) Annual debt io• on the Land Bonds.
(a) Annual debt service on the Road Bonds.
(d) Annual installments on the Repayment Note.
:. Priortty of Source of Payments.
b i gust, Tax Increment generated from the Property within
t e Dstriot determined by application of the following forMUta,
except the Redevelopment Property and the Phase it psroel ("Other
service
annual dobt on ttie
Tax In the order ofritie ority atUI2*d to
described in paragraph 1 above.
Honda
P.26
Fo Yi]
other Tax increment equals the falser of (the lesser of t) the other Tax
Increment generated in the base year 1990, or to the Tax Increment aetuauy
- remitted in the year the debt service payment is to be made) oe the actual annual
debt service payments to be made on the Bonds.
Sego" to the extent that the Other Talc Increment it insufficient to make
anneal debt seMce payments the PBonds, then the Tax haa* II Parma shall (in Increment
the or
th der of priority
e Redevelopment opme opment Props III and
contained in paragraph 1) be used for tut puWa.
aul• v
if any year in which a Payment Is scheduled under the Repayment Note, Tax
Inurement generated from the Redevelopment ProPerty and the Phase a Parcel
which is in &=am of the requirement in that you to be contributed under
Paragraph 9(a) shall be used to make the annual payment under the Repayment
Note.
0
•
EXHIBIT J
SP$CIAL ASSP.SBMENT AGREEMM I'll
This Agreement made as of this day of , 1990, by
and between the City of Richfield, a Minnesota municipal corporation (hereinafter
"City"), the Housing and Redevelopment Authority in and for the City of Richfield,
a Minnesota municipal corporation (hereinafter "HRA"), and
a (hereinafter "Redeveloper");
W ITNESSETH:
WHEREAS, Redeveloper owns certain real property in the City of Richfield
legally described on Exhibit A, attached hereto and hereby made a part hereof
(hereinafter the "Redevelopment Property"); and
WHEREAS, Redeveloper owns or may acquire certain additional real
property in the City of Richfield legally described on Exhibit B. attached hereto
and hereby made a part hereof (hereinafter the "Phase 11 Parcel"); and
WHEREAS, by agreement entitled dated as of
(hereinafter "Redevelopment Agreement") the Parties hereto
have agreed to undertake certain projects in the City of Richfield pursuant to a
Redevelopment Plan as described in the Redevelopment Agreement; and
WHEREAS, the Redevelopment Agreement provides that certain assessable
public improvements described on Exhibit C, attached hereto and hereby made a
part hereof (hereinafter "Improvements) be constructed by the City; and
WHEREAS, certain public costs associated with the implementation of the
Redevelopment Plan including the costs of the Improvements are to be financed by
the issuance of - (hereinafter "Street
Bonds") the principal and interest of which are payable primarily by the receipt of
tax increment received with respect to the Redevelopment Property by the HRA
pursuant to Tax Increment Financing Plan No. as amended, adopted by the
HRA on and by the City on , and Minnesota
Statutes Seetions 469.174 to 469.179 (hereinafter "Tax Increment ; and
WHEREAS, certain other public costs associated with the implementation of
the Redevelopment Plan are to be financed by the issuance of
(hereinafter "Taxable Tax Increment Bonds") the
principal and interest of which are also payable primarily by the receipt of Tax
Increment; and
WHEREAS, Redeveloper has requested the City and the HRA to execute this
Agreement for the purpose of providing additional security for the payment of
principal and interest on the Bonds and thereby inducing the City and the HRA to
issue the Bonds and proceed with the construction of the Improvements.
NOW, THEREFORE, on the basis of the premises and of the mutual
covenants and promises hereinafter provided, IT Is AGREED:
J-1
APR 13 '90-13:58 HOLMES & GRAVEN P,28
1. Special assessments may be levied in accordance with this Agreement
for im of the costs of the Improvements and all related costs for which special
assessments may be levied pursuant to Minnesota Sta ut Chapter 429
(hereinafter collectively referred to as the "Improvement Costs . All such costs
Property allocated for levy at r pecen( percent) t) against the Paset 11 the Parceelle except as
e
P Y an%
otherwise provided herein.
2. The levy of special assessments pursuant to this Agreement shall be
at such times, in such amounts (not exceeding the Improvement Costs), bear
interest at such rates, and be payable in a lump sum or in such installments as are
deemed appropriate in the sole and absolute discretion of the City Council. No
levy or levies of any amount or amounts totalling less than the amount of the
Improvement Costs shall exhaust the rights of the City to levy additional special
assessments hereunder.
3. Special assessments allocable to the Phase 11 Parcel shall not be
levied (except pursuant to paragraph _ of this Agreement) against the Phase II
Parcel provided Redeveloper complies with the following schedule for
redevelopment of the Phase II Parcel (the dates of which may be extended by
Resolution of the City Council when, in the discretion of the City Council, it is
deemed to be in the best interest of the City to do so):
(a) No later than , the Redeveloper shall have
submitted to the HRA and the HR,A, in its absolute and sole discretion, shall
41- have approved a Concept Plan for Phase II containing the same detail as is
required for the Concept Plan described in Section 4.4 of the
Redevelopment Agreement.
(b) No later than , the Redeveloper shall
have commenced construction of the Phase R minimum improvements as
described in the approved Concept Plan for Phase U.
4. In the event Redeveloper has not acquired title to the Phase II Parcel
prior to the levy by the City of any special assessment pursuant to paragraph ,
assessments for the full amount of the Improvement Costs may be levied against
the Redevelopment Parcel.
5. Special assessments allocable to the Redevelopment Parcel shall not
be levied except pursuant to paragraph of this Agreement.
6. If Tax Increment, together with any other revenues received by the
City which are pledged to the Street Bonds and the Taxable Tax Increment Bonds
are insufficient to pay principal of and interest on the Street Bonds and the
Taxable Tax Increment Bonds when due, the City will levy special assessments for
any amount up to the full amount of the costs of the Improvements and, all related
costs for which special assessments may be levied pursuant to Minnesota Statu s
Chapter 429 (hereinafter collectively referred to as the "Improvement Costs"),
against the Redevelopment Parcel and the Phase 11 Parcel.
7. The right of the City to levy special assessments pursuant to this
Agreement shall terminate upon the earlier of (1) one year after the last maturity
j-2
29
date of any of the Street Bonds or the Taxable Tax Increment Bonds, or (ii) receipt
by the City of Tax Increment or other revenues pledged to the payment of said
bonds sufficient • to `pay all principal and interest on said bonds and all other
obligations, contingent or otherwise, to which the Tax Increment is pledged,
the Redevelopment Agreement. All special assessments 'levied, whether or not
collected, and whether or not certified to Hennepin County, shall continue to be
valid and enforceable in accordance with the law. Upon termination of this
Agreement, the City shall execute an instrument acknowledging such termination
and releasing the Redevelopment Property and the Phase 11 Parcel from the
obligations of this Agreement upon the request of any owner thereof.
S. The City will incur no liability or responsibility to any person for a
failure to determine accurately the amount required to be assessed to provide
adequate funds for the payment of principal and interest on the Bonds.
9. Redeveloper agrees and covenants to the levy of Special Assessments
in the manner and amounts and at the times provided above, and in connection
therewith:
(a) waives notice and hearing on the levy of such Special
Assessments; and
(b) waives right to appeal Special Assessments levied pursuant to
this Agreement; and
(c) agrees that Special Assessments in the amounts stated above
do not exceed special benefit to the Redevelopment Property and that the
fair market value of the Redevelopment Property will be increased in an
amount exceeding such Special Assessments as a result of the construction
of the Improvements.
10. The City does not hereby represent or warrant to any person that
Special Assessments provided for herein will be valid, enforceable or collected.
The City will incur no liability or responsibility to holders of the Bonds, Trustees
for the holders of the Bonds, the Redeveloper, the HRA or any other person for the
payment of any monies other than those actually received by the City through the
levy and collection of Special Assessments provided for herein. In the event
Special Assessments levied pursuant to this Agreement become unenforceable by
operation of law or are declared invalid or unenforceable by a court of competent
jurisdiction, the City will have no further obligation with respect to such Special
Assessments; provided, however, that if the occurrence or defect which causes
such unenforeeability can be remedied by reassessment, the City will undertake
such reassessment.
11. This Agreement shall bind the hairs, successors and assigns of
Redeveloper and shall run with the land described herein as the Redevelopment
Property and the Phase II Parcel.
J-3
THE CITY OF RICHFIELD
BY
Its Mayor
By
Its Manager
THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE
CITY OF RICHFIELD
By Its Executive Director
BY Its chairman
BY
By
•
Its
Its
J-4
STATE OF MINNESOTA )
SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ,day of
, 1990, by and the Mayor
and Manager of the City of Richfield, Minnesota.
Notary Public
F1
L_J
STATE OF MINNESOTA )
)33.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
1990, by and , the
Executive Director and Chairman o The Housing and Redevelopment Authority in
and for the City of Richfield, Minnesota.
Notary Public
STATE OF MINNESOTA )
)SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
19901 by and , the
'
and of
•
Notary Public
•
J-5
P.32
•
4--:
BSRIBIT A
The Redevelopment PropertY
?_J
0 RXHID1T B
The Pbase A Parcel
i
•
SSHIBIT C
MW Improvements
•