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DEVELOPMENT AGREEMENT
By and Between
THE PRIOR LAKE ECONOMIC
DEVELOPMENT AUTHORITY
And
ENIVID RSADTY CORPORATION
...................... ,
a Minnesot'ii"'" Corporation
This Agreement was drafted by:
Briggs and Morqan
Professional Association
2200 First National Bank Bldg.
saint PaUl, Minnesota 55101
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TABLE OF CONTENTS
(This Table of Contents is not part of the
1I~IIJ:llfi~mB!.~I!I Development Agreement and is only
............,......d................,......fOf....cOrivenience of reference.)
ARTICLE I - DEFINITIONS
~
Section 1.1.
Definitions
. . . . . . . . . . . .
. 1-1
ARTICLE II - REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.1. Representations and Warranties by
the EDA . . . . . . . . .. .... . 2-1
Section 2.2. Representations, Warranties and
Covenants by the Company . . . . . . . . 2-1
ARTICLE III - PROJECT UNDERTAKINGS
Section 3.1. Tax Increment Assistance: EDA Note
. . . 3-1
ARTICLE IV - CONSTRUCTION OF MINIMUM IMPROVEMENTS:
ASSESSMENT AGREEMENT
Section 4.1. Construction of Minimum
Improvements . . . . . . . . . .
Section 4.2. Construction Plans . . .
Section 4.3. Commencement and Completion of
Construction . . . . . . . . . .
Section 4.4. Certificate of Completion. . . .
Section 4.5. Assessment Agreement . . . . . .
. . .
. 4-1
. 4-1
. . . . 4-2
. . . . 4-2
. . . . 4-3
ARTICLE V - PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER;
INDEMNIFICATION
Section 5.1. Prohibition Against Transfer of
Property and Assignment of Agreement . . 5-1
Section 5.2. Release and Indemnification
Covenants . . . . . . . . . . . . . . . . 5-2
ARTICLE VI - EVENTS OF DEFAULT
Section 6.1. Events of Default Defined . . . . 6-1
Section 6.2. Remedies on Default . . . . . . . 6-1
Section 6.3. No Remedy Exclusive . . . . . . . . . 6-2
Section 6.4. No Additional Waiver Implied by One
Waiver . . . . . . . . . . . . . . . . . 6-2
Section 6.5. Agreement to Pay Attorneys' Fees and
Expenses . . . . . . . . . . . . . . . . 6-2
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ARTICLE VII - ADDITIONAL PROVISIONS
Section 7.1. Titles of Articles and Sections ... 7-1
Section 7.2. Notices and Demands. . . . . .. .. 7-1
section 7.3. Counterparts . . . . . . . . .. .. 7-1
Section 7.4. Law Governing. . . . . . . . . . . . . .7-1
ARTICLE VIII - TERMINATION OF AGREEMENT; EXPIRATION
Section 8.1. The EDA's Option to Terminate.
Section 8.2. Expiration . . . . . . . . .
Section 8.3. Effect of Termination or
Expiration . . . . . . . .
. . . . . 8-1
. . 8-1
. . . .
SIGNATURES.
. . . .
. . . . .
EXHIBIT A - Legal Description of Development Property
EXHIBIT B - Certificate of Completion .......
EXHIBIT C - Form of Tax Increment Revenue Note . . .
EXHIBIT D - Form of Assessment Agreement . . . . . .
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. 8-1
. . 8-2
. . A-1
B-1
. . C-1
D-1
DEVELOPMENT AGREEMENT
THIS AGREEMENT is dated as of , 1990, is by and
between the Prior Lake Economic Development Authority and ENIVID
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ARTICLE I
Definitions
Section 1.1. Definitions. As used in this Agreement, the
following terms have the following respective meanings:
"Aqreement" means this Development Agreement, as the same may
be amended.
"Assessment Agreement" means the agreement in the form of
Exhibit D which is to be executed by the Company pursuant to
Section 4.5.
"Certificate of ComDletion" means the certificate, in the form
attached as Exhibit B hereto, to be provided by the EDA to the
Company pursuant this Agreement, upon satisfactory completion of
the Minimum Improvements.
~~~~;:m:~~a.t~ i~~~~~~;~~~~sa o~i~~:~~~:
"Construction Plans" means the plans, specifications,
drawings and related documents on all construction work to be
performed by the Company on the Development Property, including
all on-site improvements to be performed, installed or constructed
upon the Development Property pursuant to this Agreement. Such
plans shall be prepared by a registered engineer or licensed
architect and shall at a minimum include, for each building or
other structure to be constructed on the Development Property, the
following: (i) site plan (which shall without limitation include
building and parking lot size and location, driveway and access
points, sidewalks, and lighting location); (ii) foundation plan;
(iii) basement plans; (iv) floor plan for each floor; (v) cross
sections of each (length and width); (vi) elevations (all sides);
and (vii) landscape plan, and shall include as well adequate
plans, drawings and specifications relating to all driveways,
walks, parking and other improvements to be constructed upon the
Development Property by the Company.
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"Develo~ment Property" means the real property described in
Exhibit A of this Agreement.
"EI2A" means the Prior Lake Economic Development Authority.
"EDA Note" means the obligation substantially in the form of
the attached Exhibit C which is described in Section 3.1 and which
is issuable by the EDA to the Company in satisfaction of the EDA's
obligation to provide the Company the assistance described in
section 3.1.
"Event of Default" means an event of default defined in
Section 6.1 of this Agreement.
"Minimum Improvements" means the approximately 30,000 square
foot supermarket and all other improvements, including driveways,
walks, landscaping, parking facilities and fixtures and equipment,
to be constructed or installed by the Company upon the Development
Property pursuant to this Agreement, as such improvements are
described and detailed in the Construction Plans.
"Party" means either the Company or the EDA.
"Parties" means the Company and the EDA.
"proiect" means the Development Property and the Minimum
Improvements.
"Site ImDrovement Costs" those costs incurred by the Company
in correcting the soil conditions of the Development Property, as
described in Section 3.1.
"State" means the state of Minnesota.
"Tax Increment Act" means Minnesota Statutes, Sections 469.174
through 469.179, as the same may be amended.
"Tax Increments" means those tax increments which the EDA
shall be entitled to receive and retain, and which the EDA shall
have actually received from Scott County, from time to time from
its Tax Increment Financing District pursuant to the Tax Increment
Act, and "Available Tax Increments" means, as further defined in
section 3.1, the portion of the Tax Increments which shall be
available to pay the EDA's obligations under the EDA Note.
"Tax Increment Financina District" means the EDA's Tax
Increment Financing District No. 2-1 within its Redevelopment
Project No.2, as said Tax Increment District exists or is in the
process of being established and certified as of the date of this
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Agreement. [Note: As of the date of this Aqreement, the
Development Property and the property constituting the Tax
Increment Financing District are the same.]
"Unavoidable Delays" means any delay outside the control of
the Party claiming its occurrence which is the direct result of
strikes, other labor troubles, unusually severe or prolonged bad
weather, Acts of God, fire or other casualty to the Minimum
Improvements, litigation commenced by third parties which, by
injunction or other similar judicial action, directly results in
delays, or acts of any federal, state or local governmental unit
(other than the EDA) which directly result in delays.
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ARTICLE II
Representations. Warranties and Covenants
section 2.1. ReDresentations and Warranties by the EDA. The
EDA represents and warrants that it is authorized to enter into and
perform its obligations under this Agreement; however, no part of
this Agreement shall be construed as a representation of the EDA
as to the condition of the Development Property, including without
limitation any soils or hazardous waste conditions, or as to its
suitability for the Company's purposes and needs.
Section 2.2. Representations. Warranties and Covenants by
the Company. The Company represents and warrants that:
(a) The Company is a corporation duly organized and in
good standing under the laws of the State, is authorized to
do busines~ in Minnesota and is in good standing under the
laws of Minnesota, is not in violation of any provisions of
its Articles of Incorporation or the laws of the State and is
authorized to enter into and perform its obligations under
this Agreement.
(b) The Company is the sole owner of the Development
Property and will take all actions as may be necessary in
order to construct, operate and maintain the Minimum
Improvements upon the Development Property in accordance with
this Agreement and all local, state and federal laws and
regulations (including without limitation environmental,
zoning, building code and public health laws and regulations) .
(c) The Minimum Improvements are expected to be
constructed at a cost not less than approximately $900,000.
(d) The Company has received no notice or communication
from any local, state or federal official or body that the
activities of the Company respecting the Development Property
or the construction of the Minimum Improvements thereon may
be or will be in violation of any law or regulation.
(e) The Company will use its best efforts to obtain, in
a timely manner, all required permits, licenses and approvals,
and to 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 and operated.
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(f) The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the
fulfillment of or compliance with the terms and conditions of
this Agreement are not prevented or limited by and will not
conflict with or result in a breach of any provision or
requirement applicable to the Company or of any provision of
any evidence of indebtedness, agreement or instrument of
whatever nature to which the Company is now a party or by
which it is bound.
(g) The construction of the Minimum Improvements would
not be undertaken by the Company, and in the opinion of the
Company would not be economically feasible within the
reasonably foreseeable future, without the assistance and
benefit to the Company provided for in this Agreement.
2-2
ARTICLE III
proiect Undertakings
Section 3.1. Tax Increment Assistance; EDA Note. The Company
hereby represents to the EDA that the Company will, in connection
with completing the Project, incur costs in excess of approximately
$240,000 for correcting soil deficiencies of the Development
Property of the type which allow the designation of the Tax
Increment Financing District as a "soils condition district" under
Section 469.174, Subdivision 19, of the Tax Increment Act,
including excavation, filling and grading costs, as applicable
(collectively, the "site Improvement Costs"). The EDA agrees to
defray all or a portion of the site Improvement Costs by issuing
the EDA Note to the Company, as registered owner thereof,
substantially in the form of Exhibit C to this Agreement, the
issuance of which EDA Note is hereby authorized and approved,
subject to the following conditions:
(a) The EDA Note shall be dated, issued and delivered
as soon as practicable following the execution and delivery
of this Agreement, provided no Event of Default shall have
occurred and be at the time continuing.
(b) As conditions to such reimbursement of site
Improvement Costs pursuant to the EDA Note, the Company shall
(1) have received the Certificate of Completion, (2)
demonstrate in writing to the reasonable satisfaction of the
EDA the amount and nature of the site Improvement Costs and
that the same have been paid and (3) provide a wri tten
certification to the EDA stating that the applicable portion
of the underlying soil corrections have been or are being
made in accordance. with the terms of this Agreement and
applicable laws and regulations, that the costs being
certified are site Improvement Costs, as defined hereunder,
and that no Event of Default has occurred which remains
uncured. Upon such certifications of site Improvement Costs,
which may occur from time to time prior to or in connection
with the issuance of the Certificate of Completion, the EDA
shall then add said amounts to the principal amount of the EDA
Note by recording the same on the Principal Ledger attached
to the EDA Note. The EDA Note shall be surrendered to the EDA
for purposes of recording such amounts on the principal Ledger
of the EDA Note from time to time. The aggregate principal
amount of the EDA Note (the "Principal Amount") shall be the
lesser of (1) $240,000 and (2) the sum of the amounts which
shall have been entered on the Principal Ledger of the EDA
Note pursuant to this subsection.
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(c) The EDA shall have established the Development
Property as a "soils condition" tax increment financing
district pursuant to and as defined in section 469.174,
Subdivision 19, of the Tax Increment Act, which actions the
EDA shall use its best efforts to process and accomplish.
(d) Subject to the provisions of the EDA Note, the
principal of and interest on the EDA Note shall in the
aggregate be payable on December 1 of the years 1992 through
2001, inclusive (the "Payment Dates"), in the respective
amount or amounts described in this subsection. The sole
source of funds available for payment of the EDA's obligations
under this section and correspondingly under the EDA Note
shall be the Available Tax Increments, hereby defined to be,
for each of the property tax years starting with the payable
1992 and continuing through the payable 2001 property tax
years, inclusive, the product derived by multiplying the
following factors (1) and (2), factor (1) being the Principal
Amount divided by $240,000 and factor (2) being the lesser of
(i) $44,432 and (ii) the total of the Tax Increments generated
by the Project with respect to the applicable tax year minus
$3,000. Any amount of Tax Increments which may from year to
year exceed the Available Tax Increments are not subject to
this Agreement, and the EDA retains full discretion as to any
authorized application thereof, regardless of whether the
Available Tax Increments are sufficient to reimburse the
Company in full for the above-described costs.
(e) The Principal Amount of the EDA Note shall bear
interest from the last date of entry on the Principal Ledger
of the EDA Note and shall be determined as that rate of
interest which, when the Available Tax Increments are
present-valued (from their respective Payment Dates) to said
date of entry and to said Principal Amount, will result in
the sum of such present values equalling the principal Amount.
(f) The EDA shall issue the EDA Note as a taxable and
D2t as a tax-exempt obligation, and accordingly the interest
on the EDA Note is not anticipated, represented or covenanted
to be generally exempt from either state or federal income
taxation.
(g) The EDA Note shall be a special and limited
obligation of the EDA and not a general obligation of the EDA,
and only Available Tax Increments shall be used to pay the
principal of and interest on the EDA Note.
(h) The EDA's obligation to make payments on the EDA
Note shall be conditioned upon the requirement that there
3-2
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shall not at the time have occurred and be continuing an Event
of Default; provided, however, that if such Event of Default
shall subsequently have been cured to the reasonable
satisfaction of the EDA, such unpaid obligations shall
thereupon be reinstated and thereby become due and payable.
(i) The EDA Note shall be governed by and payable
pursuant to the additional terms thereof, as set forth in
Exhibit C. In the event of any conflict between the terms of
the EDA Note and the terms of this Section 3.1, the terms of
the EDA Note shall govern.
(j) Following any termination of this Agreement by the
EDA pursuant to Section 6.2(b) hereof, no further or unpaid
amounts of the EDA Note shall then or thereafter be due and
payable by the EDA under this Section or the EDA Note but
shall thereupon ~e extinguished.
(k) In no event shall the EDA pay to the Company more
than $444,320 pursuant to the terms of the EDA Note or this
Section.
(1) The Company acknowledges that the Tax Increment
Financing District is anticipated to be a "soils condition
district" under the Tax Increment Act and is therefore subject
to the restrictions provided for such types of tax increment
financing districts as set out in said Act.
3-3
ARTICLE IV
Construction of Minimum Improvements:
Assessment Aareement
Section 4.1. Construction of Minimum Imcrovements. The
Company agrees that it will construct the Minimum Improvements on
the Development Property in conformance with the approved
Construction Plans. The Company agrees that the scope and scale
of the Minimum Improvements to be constructed shall not be
significantly less than the scope and scale of the Minimum
Improvements as detailed and outlined in the Construction Plans.
Section 4.2. Construction Plans.
(a) Except for the execution and delivery of the
Assessment Agreement and except for the issuance of the EDA
Note, the EDA shall have no obligation to the Company to take
any action pursuant to any provision of this Agreement until
such time as the Company has submitted Construction Plans to
the EDA, and the EDA has approved such Construction Plans.
The EDA shall approve the Construction Plans if it determines
that they conform to the applicable provisions of this
Agreement; provided, however, that any such approval of the
Construction Plans pursuant to this Section 4.2 shall
constitute approval for the purposes of this Agreement only
and shall not be deemed to constitute approval or waiver by
the City of Prior Lake with respect to any building, zoning
or other ordinances or regulation, and shall not be deemed to
be sufficient plans to serve as the basis for the issuance of
a building permit if the Construction Plans are not as
detailed or complete as the plans otherwise required for the
issuance of a building permit. Such Construction Plans must
be rejected in writing by the EDA within 10 working days of
submission or shall be deemed to have been approved by the
EDA. If the EDA rejects the Construction Plans in whole or
in part, the Company shall submit new or corrected
Construction Plans wi thin 30 days after receipt by the Company
of written notification of the rejection, accompanied by a
written statement of the EDA specifying the respects in which
the Construction Plans submi tted by the Company fail to
conform to the requirements of this Section 4.2. The
provisions of this Section 4.2 relating to approval, rejection
and resubmission of Construction Plans shall continue to apply
until the Construction Plans have been approved by the EDA.
Approval of the Construction Plans by the EDA shall not
relieve the Company of any obligation to comply with the
provisions of this Agreement or the provisions of applicable
federal, state and local laws, ordinances and regulations, nor
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shall approval of the Construction Plans by the EDA be deemed
to constitute a waiver of any Event of Default.
(b) If the Company desires to make any change in the
Construction Plans after their approval by the EDA, the
Company shall submit the proposed change to the EDA for its
approval or rejection pursuant to this Section. A proposed
change in the Construction Plans shall be deemed approved
unless'rejected by the EDA in writing within 10 working days
of submission thereof with a statement of the EDA's reasons
for such rejection. The provisions of this subsection shall
apply to changes which alter in any respect the landscape plan
or the site plan or which individually or in the aggregate
affect the cost of the Minimum Improvements by $25,000 or
more.
Section 4.3. Commencement and Completion of Construction.
Subject to Unavoidable Delays, the Company shall commence
construction of the Minimum Improvements on or before June 1, 1990,
and shall have substantially completed the construction of the
Minimum Improvements not later than December 31, 1990.
Section 4.4. Certificate of Comoletion.
(a) Promptly after completion of the Minimum
Improvements in accordance with the provisions of this
Agreement, and upon written request made by the Company, the
EDA will furnish the Company with a certificate of Completion,
in substantially the form set forth in Exhibit B attached
hereto. Such certificate of Completion shall be a conclusive
determination of satisfaction and termination of the
agreements and covenants in this Agreement with respect to the
obligations of the Company to construct the Minimum
Improvements. The following shall be conditions precedent to
the EDA's obligation to issue the certificate of Completion:
(i) The Company shall certify to the EDA in writing
that it has complied with the terms of this Agreement and
that there exists no Event of Default hereunder: and
(ii) The Company shall have received from the City
of Prior Lake a Certificate of Occupancy for the Minimum
Improvements.
(b) If the EDA determines that it cannot issue the
Certificate of Completion, it shall, within 10 working days
after written request by the Company, provide the Company with
a written statement indicating in adequate detail in what
respects the Company has failed to complete the Minimum
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Improvements in accordance with the provisions of this
Agreement or is otherwise in default under the terms of this
Agreement (including without limitation an Event of Default
hereunder), and what measures or acts it will be necessary
for the Company to take or perform in order to obtain such
Certificate of Completion.
Section 4.5. Assessment Agreement. Contemporaneously with
the execution and delivery of this Agreement, the Company and the
EDA shall execute and deliver the Assessment Agreement for the
Development Property. The Assessment Agreement shall provide that
the minimum market values of the Development Property for real
property taxation purposes as of January 1, 1991, and as of each
January 1 thereafter to and including January 1, 2000, shall be
$900,000.
The Assessment Agreement shall terminate on December 31, 2001,
to the effect that the Assessment Agreement shall apply to the
1991 payable 1992 through the 2000 payable 2001 property taxes for
the Development Property.
The Assessment Agreement shall be as much a part of this
Agreement as though set forth in full herein. The Assessment
Agreement shall be filed for record in the office of the County
Recorder and/or Registrar of Titles of Scott County, as
appropriate, and such filing shall constitute notice to any
subsequent encumbrancer or purchaser of the Development Property,
whether voluntary or involuntary, and the Assessment Agreement
shall be binding and enforceable in its entirety against any such
subsequent purchaser or encumbrancer. The Company shall pay all
real property taxes, or taxes in lieu thereof pursuant to Minnesota
statutes, Section 272.01, or any similar or successor statute,
payable with respect to the Development Property and pursuant to
the provisions of the Assessment Agreement and any other statutory
or contractual duty which shall accrue subsequent to the date of
execution of this Agreement. The Company agrees that prior to the
termination of the Assessment Agreement:
(a) It will not seek administrative review or judicial
review of the applicability of any tax statute relating to
the taxation of the Development Property in accordance with
the Assessment Agreement or raise the inapplicability of any
such tax statute as a defense in any proceedings, including
delinquent tax proceedings:
(b) It will not seek administrative review or judicial
review of the constitutionality of any tax statute relating
to the taxation of the Development Property in accordance with
the Assessment Agreement or raise the unconstitutionality of
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any such tax statute as a defense in any proceedings,
including delinquent tax proceedings; and
(c) Except as permitted in the last paragraph of this
Section, it will not seek any tax deferral or abatement,
either presently or prospectively authorized under any state
or federal law, of the taxation of the Development Property,
except that nothing in this Section or in the Assessment
Agreement shall prohibit the Company from seeking through the
exercise of legal or administrative remedies to reduce the
market values assigned to the Development Property to amounts
which are not less than the minimum market values prescribed
in the Assessment Agreement.
The Company agrees to payor cause to be paid, when due and
before any fine, penalty, interest or cost may be added thereto
for the nonpayment thereof, all real estate taxes, assessments,
water and sewer rates and charges, any occupancy tax or similar
tax, and other governmental levies and charges, general and
special, ordinary and extraordinary, unforeseen as well as
foreseen, of any kind and nature whatsoever, which are assessed,
levied, confirmed, imposed or become payable with respect to the
Development Property or any part thereof before the expiration of
this Agreement (all of which are hereinafter referred to as
"impositions") . The Company shall also be responsible for any
charges or fees imposed for recording this Agreement or the
Assessment Agreement.
The Company agrees, upon request of the EDA, to furnish to
the EDA, within 60 days after the date when any imposition is
payable pursuant to any provision of this Section, official
receipts of the appropriate taxing authority, or other proof
satisfactory to the EDA, evidencing the payment thereof.
The Company may, at its expense, in its own name and in good
fai th, contest any such taxes, assessments and other charges;
provided, however, that the rights of the Company to seek
administrative or judicial review of the application of, or any
determination made pursuant to, any tax statute relating to the
taxation of the Development Property shall be strictly subject to
the restrictions thereon contained in this Section and the
Assessment Agreement, and in such regard, the Company specifically
agrees to pay, when due and without protest or contest of any kind,
all property taxes payable with respect to the minimum market
values of the Development Property, as provided in the Assessment
Agreement. In the event of any such permitted contest, the Company
may permit the taxes, assessments or other charges or payments in
lieu of taxes so contested to remain unpaid during the period of
such contest and any appeal therefrom unless the EDA shall in its
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sole discretion notify the Company that, in the opinion of counsel
and as reasonably demonstrated to the Company, by nonpayment of any
such items the security afforded the EDA pursuant to the terms of
this Agreement and the Assessment Agreement shall be materially
affected, in which event such taxes, assessments or charges shall
be paid forthwith.
~
4-5
ARTICLE V
Prohibitions Aqainst Assiqnment and Transfer:
Indemnification
Section 5.1. Prohibition Aqainst Transfer of Pro~ertv and
Assiqnment of Agreement. The Company represents and agrees that
prior to the issuance of the certificate of Completion:
(a) Except only by way of security for the purpose of
obtaining financing necessary to enable the Company or any
successor in interest to the Development Property, or any part
thereof, to perform its obligations with respect to making the
Minimum Improvements under this Agreement, and any other
purpose authorized by this Agreement, the Company (except as
so authorized) has not made or created and will not make or
create or suffer to be made or created any total or partial
sale, assignment, conveyance, or lease (except in the ordinary
course of the Company's business of lessor of the Minimum
Improvements), or any trust or power, or any transfer in any
other mode or form, of or with respect to the Agreement or
the Development Property or any part thereof or any interest
therein, or any contract or agreement to do any of the same,
without the prior written approval of the EDA.
(b) The EDA shall be entitled to require, except as
otherwise provided in the Agreement, as conditions to any such
approval that:
(i) Any proposed transferee shall have the
qualifications and financial responsibility, in the
reasonable judgment of the EDA, necessary and adequate
to fulfill the obligations undertaken in this Agreement
by the Company.
(ii) Any proposed transferee, by instrument in
writing satisfactory to the EDA, shall, for itself and
its successors and assigns, and expressly for the benefit
of the EDA, have expressly assumed all of the obligations
of the Company under this Agreement and agreed to be
subject to all the conditions and restrictions to which
the Company is subj ect unless the Company agrees to
continue to fulfill those Obligations, in which case the
preceding provisions of this Section 5.1(b) (ii) shall not
apply.
(iii) There shall be submitted to the EDA for
review and prior written approval all instruments and
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other legal documents involved in effecting the transfer
of any interest in this Agreement or the Development
Property.
section 5.2. Release and Indemnification Covenants.
(a) The Company releases from and covenants and agrees
that the EDA and the governing body members, officers, agents,
including its independent contractors, consultants and legal
counsel, servants and employees thereof (hereinafter, for
purposes of this Section, collectively the "Indemnified
Parties") shall not be liable for and agrees to indemnify and
hold harmless the Indemnified Parties against any loss or
damage to property or any injury to or death of any person
occurring at or about or resulting from any defect in the
Minimum Improvements.
(b) Except for any willful misrepresentation or any
willful or wanton misconduct of the Indemnified Parties, the
Company agrees to protect and defend the Indemnified Parties,
now and forever, and further agrees to hold the aforesaid
harmless from any claim, demand, suit, action or other
proceeding whatsoever by any person or enti ty whatsoever
arising or purportedly arising from this Agreement, or the
transactions contemplated hereby or the acquisition,
construction, installation, ownership, and operation of the
Minimum Improvements, provided, that this indemnification
shall not apply to the warranties made or obligations
undertaken by the EDA in this Agreement.
(c) All covenants, stipulations, promises, agreements
and obligations of the EDA contained herein shall be deemed
to be the covenants, stipulations, promises, agreements and
obligations of the EDA and not of any governing body member,
officer, agent, servant or employee of the EDA. The
indemnifications provided in this Section shall include the
reasonable attorneys' fees of the Indemnified Parties.
5-2
ARTICLE VI
Events of Default
Section 6.1. Events of Default Defined. The following are
Events of Default under this Agreement:
(a) Failure in the timely payment of all real property
taxes assessed with respect to the Development Property.
(b) Failure by the Company to commence and complete
construction of the Minimum Improvements pursuant to the
terms, conditions and limitations of this Agreement.
(c) Failure by the Company to observe or perform any
covenant, condition, obligation or agreement on its part to
be observed or performed under this Agreement.
(d) The holder of any security interest in any part of
the Development Property or Minimum Improvements takes action
to enforce the same for satisfaction.
(e) A petition in bankruptcy is filed naming the Company
as debtor, and such petition is not dismissed within 90 days
of the date of filing thereof.
An Event of Default shall also include any occurrence which would
with the passage of time or giving of notice become an Event of
Default as defined hereinabove.
Section 6.2. Remedies on Default. Whenever any Event of
Default occurs, in addition to all other remedies available to the
EDA at law or in equity, the EDA (1) may suspend its performance
under the Agreement until it receives assurances from the Company,
deemed adequate by the EDA, that the Company has cured its default
and will continue its performance under this Agreement and (2) may
take anyone or more of the following actions after provision of
30 days written notice to the Company of the Event of Default by
the EDA, but only if the Event of Default has not been cured within
said 30 days, or if the Event of Default cannot be cured within 30
days, the Company does not provide assurances to the EDA reasonably
satisfactory to the EDA that the Event of Default will be cured
as soon as reasonably possible:
(a) The EDA may withhold the Certificate of Completion.
3062
6-1
(b) The EDA may terminate this Agreement, without
further obligation whatsoever to the Company under this
Agreement or the EDA Note.
Section 6.3. No Remedv Exclusive. No remedy herein conferred
upon or reserved to the EDA 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. No delay or omission to exercise any right or power
accruing upon any default shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be
deemed expedient.
Section 6.4. No Additional Waiver ImDlied by One Waiver. If
any agreement contained in this Agreement should be breached by any
Party and thereafter waived by any other Party, such waiver shall
be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent, previous or subsequent breach
hereunder.
Section 6.5. Aareement to Pay Attorneys' Fees and EXDenses.
Whenever any Event of Default occurs and the EDA shall employ
attorneys or incur other expenses for the enforcement, performance
or observance of any obligations or agreement on the part of the
Company herein contained, or for the identification and/or pursuit
of any other remedies on possible work-outs of such default, the
Company agrees that it shall, on demand therefor, pay to the EDA
the reasonable fees of such attorneys and such other expenses so
incurred by the EDA.
3062
6-2
ARTICLE VII
Additional Provisions
Section 7.1. Titles of Articles and Sections. Any titles of
the several parts, Articles and Sections of this Agreement are
inserted for convenience of reference only and shall be disregarded
in construing or interpreting any of the provisions hereof.
Section 7.2. Notices and Demands. Except as otherwise
expressly provided in this Agreement, a notice, demand or other
communication under the Agreement by either Party to the other
shall be sufficiently given or delivered if sent by registered or
certified mail, postage prepaid, return receipt requested, or
delivered personally;, and,
(a) in the case of the Company, if mailed to or
delivered personally to ENIVID EhlVld;~111 Corporation, c/o
Boderman and Associates, cPA"'f';;';';';';';';';';'''Y2';ifo'<r;'''' Industrial Park
Boulevard, Suite 100, Plymouth, Minnesota 55441, Attention:
Neil Boderman; with a copy to Robert D. Schwartz, 450
International Centre, 900 2nd Avenue South, Minneapolis,
Minnesota 55402; and
(b) in the case of the EDA, if mailed to or delivered
personally to the EDA at the Prior Lake City Hall, 4629 Dakota
S.E., Prior Lake, Minnesota 55372, Attention: Prior Lake
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 as provided in this Section.
Section 7.3. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall constitute an
original hereof.
Section 7.4. Law Governina. The parties agree that this
Agreement shall be governed and construed in accordance with the
laws of Minnesota and acknowledge that this Agreement is of the
type of agreement described in Minnesota Statutes, Section 469.176
Subdivision 5.
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7-2
ARTICLE VIII
Termination of Aareement: Exciration
Section 8.1. The EDA's ODtion to Terminate. As provided in
Section 6.2 hereof, the EDA may terminate this Agreement if an
Event of Default shall have occurred hereunder and be continuing.
Nothing in.this section shall affect the EDA's right, should the
EDA not so elect to terminate this Agreement and as recourse
against the Company, to insist on performance hereunder by the
Company, including the Company's completion of the Minimum
Improvements.
Section 8.2. Exciration. This Agreement shall expire on the
earlier of (i) December 31, 2001, and (ii) the date, if any, upon
which the EDA's obligations under Section 3.1 shall have been paid
in full.
Section 8.3. Effect of Termination or Expiration. No
termination or expiration of this Agreement pursuant to the terms
hereof shall terminate (i) any rights or remedies arising hereunder
due to an Event of Default occurring prior to such termination or
expiration or (ii) the provisions of Sections 5.2 and 6.5 hereof.
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8-1
IN WITNESS WHEREOF, the EDA and the Company have caused this
Agreement to be executed by their duly authorized repre-sentatives.
PRIOR LAKE ECONOMIC DEVELOPMENT
AUTHORITY
(SEAL)
By
Its President
By
Its Vice-President
[Execution of this Agreement by ENIVID 1nlllljlll~lI Corporation
appears on the following page.]
3062
8-2
ENIVID R!A.b19 CORPORATION
..................................,........ ,
A MINNES"()TA" 'CORPORATION
By
Its President
[Execution Page to Development Agreement between the Prior Lake
Economic Development Authority and the above-named corporation.]
3062
8-3
STATE OF MINNESOTA )
)ss.
COUNTy OF SCOTT )
The foregoing instrument was acknowledged before me this
day of , 1990, by and
, the President and Vice-President, respectively,
of the Prior Lake Economic Development Authority, on behalf of said
Authority.
Notary Public
~
8-4
STATE OF MINNESOTA )
) SSe
COUNTY OF )
The foregoing instrument was acknowledged before me this
day of , 1990, by Patricia Divine, the President of
~~~::~~~~!!. ~f~~:~;:~__~W~ ~~;h=~~
Notary Public
3062
8-5
EXHIBIT A
LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
This Development Property consists of the following properties
located in the City of Prior Lake, Scott County, Minnesota:
Lots 2 and 3, Block 1,
Brooksville Center 2nd Addition
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A-1
EXHIBIT B
CERTIFICATE OF COMPLETION
WHEREAS, the Prior Lake Economic Development Authority (the
~~~~r:ti~_1k"I\J~!;~:;a%;:~m~~~~~~~:
"Developmeri€..w....."A(free.m~iritny.;................d.iil::'ed as of , 1990,
relating to certain property in the City of Prior Lake, Minnesota,
and the issuance of this certificate was a contemplated occurrence
under Section 4.4 of the Development Agreement; and
WHEREAS, the Company has to the present date performed in a
manner deemed sufficient under the Development Agreement by the
EDA to permit the execution and delivery of this certification:
NOW, THEREFORE, this is to certify that all building
construction and other physical improvements specified as the
Minimum Improvements in the Development Agreement to be done and
made by the Company have been completed and the above covenants
and conditions in said Development Agreement have been performed
by the Company.
THE PRIOR LAKE ECONOMIC DEVELOPMENT
AUTHORITY
By
Its President
(SEAL)
By
Its Vice-President
[Note: At the request of the Company, this Certificate may be
issued in recordable form.]
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EXHIBIT C
FORM OF EDA NOTE
No. R-1
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF SCOTT
PRIOR LAKE ECONOMIC DEVELOPMENT AUTHORITY
TAX INCREMENT REVENUE
NOTE OF 1990, SERIES A
'!AJmNb!D:\AHtf::m:STATEb:)\
;:\:::;:;:::::::::;:::;:;:::::;:;:::;:::;:::;:;:;:;:;:;:;:;:;:;:;:;:::::;:;:;:;:;:;:;:;:;:::::::::::::;:;:;:;::=::::::;;;::;;::=:;;:;::;;::::::::::::::::::.,,:::
The Prior Lake Economic Development Authority (the "EDA")
hereby acknowledges itself to be indebted and, for value received,
hereby promises to pay to ENIVID "nitY~A:::::::::~illJ corporation, a
Minnesota corporation, ::::::~*lzi:::::InJlKI~11::::'~9;pg#ll~gliror its registered
assigns (the "Registeied"'OWrierJtT~'.but"orily""iii""'the manner, at the
times, from the sources of revenue, and to the extent hereinafter
provided, the principal amount hereof (the "Principal Amount") and
interest thereon, as hereinafter described.
The Principal Amount of this Note shall equal the lesser of
(1) $240,000 and (2) the sum of the principal installments which
shall have been entered on the attached Principal Ledger.
Subject to the terms hereof, payments shall be due and payable
on December 1 of each of the years 1992 through 2001, inclusive
(the "Payment Dates").
The amounts due hereon on each Payment Date are payable solely
from, to the extent, and at the times that the EDA shall have
received certain amounts of tax increments from its Tax Increment
Financing District No. 2-1 (the "Tax Increment District") within
its Redevelopment Project NO.2, and as said amounts of such tax
increments are defined and limited in Section 3.1 of that certain
Development Agreement described below, such tax increments are
hereinafter referred to as the "Available Tax Increments." As
further provided in Section 3.1 of the Development Agreement,
Available Tax Increments means, for each of the property tax years
starting with the payable 1992 and continuing through the payable
3062
C-1
2001 property tax years, inclusive, the product derived by
multiplying the following factors (1) and (2), factor (1) being the
Principal Amount divided by $240,000 and factor (2) being the
lesser of (i) $44,432 and (ii) the total of the Tax Increments
generated by the Project with respect to the applicable tax year
minus $3,000. Subject to the terms of this Note, the EDA shall pay
to the Registered Owner the applicable amount of Available Tax
Increments on the respective Payment Date.
The Principal Amount of this Note shall bear interest from
the last date of entry on the Principal Ledger and shall be
determined as that rate of interest which, when the Available Tax
Increments are present-valued (from their respective Payment Dates)
to said date of last entry and to said Principal Amount, will
result in the sum of such present values equalling the Principal
Amount.
The EDA' s payment obligations hereunder shall be further
conditioned on the fact that there shall not at the time have
occurred and be continuing an Event of Default under that certain
giDQIg,i:i:ir:i:i:::i!g:::i:::::i:i:i:i:g@!~~I:::i::;:i:i:i:i::Development Agreement, dated as of
. ...... .......................~....T9.90..."(the.......Development Agreement"), as the same may
be amended from time to time, by and between the EDA and ENIVID
1llllllIi:r a~~:~~~~~~~', aifMi;~::~::t c~~~~:ti~;~!,!t!'::i:i~eFM~~
E:veiif.......ol.......t)e"t"aul t under the Development Agreement the EDA elects to
terminate the Development Agreement, the EDA shall have no further
debt or obligation under this Note whatsoever. Reference is hereby
made to the provisions of the Development Agreement, including
without limitation Section 3.1 thereof, for a fuller statement of
the rights and obligations of the EDA respecting this Note, and
said provisions are hereby incorporated by reference into this Note
as though set out in full herein.
This Note is not any obligation of any kind whatsoever of any
public body, except that this Note is a special and limited revenue
obligation but not a general obligation of the EDA and is payable
by the EDA only from the sources and subject to the qualifications
stated or referenced herein. Neither the full faith and credit nor
the taxing powers of the EDA are pledged to the payment of the
principal of or interest on this Note and no property or other
asset of the EOA, save and except the above referenced Available
Tax Increments, is or shall be a source of payment of the EDA's
obligations hereunder.
This Note is issued by the EDA in aid of financing a project
pursuant to and in full conformity with the Constitution and laws
of the State of Minnesota, including the Tax Increment Act,
Minnesota statutes, Sections 469.174 through 469.179.
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C-2
This Note may be assigned but upon such assignment the
assignor shall promptly notify the EDA at the Prior Lake City
offices by registered mail, and the assignee shall surrender the
same to the EDA either in exchange for a new fully registered note
or for transfer of this Note on the registration records for the
Note maintained by the EDA. Each such assignee shall take this
Note subject to the foregoing condition and subject to all
provisions stated or referenced herein.
The EDA has elected to issue this Note as a non-tax exempt
obligation and accordingly anticipates that the interest on this
Note is not generally exempt from federal or state income taxes,
and the EDA makes no representation or covenant with respect to
any such exemption.
IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions,
and things required by the Constitution and laws of the State of
Minnesota to be done, to have happened, and to be performed
precedent to and in the issuance of this Note have been done, have
happened, and have been performed in regular and due form, time,
and manner as required by law; and that this Note, together with
all other indebtedness of the EDA outstanding on the date hereof
and on the date of its actual issuance and delivery, does not cause
the indebtedness of the EDA to exceed any constitutional or
statutory limitation thereon.
IN WITNESS WHEREOF, the Prior Lake Economic Development
Authority, by its Board of Commissioners, has caused this Note to
be executed by the manual signatures of its President and
Vice-President; has caused the official seal of the EDA to be
omitted from this Note; and has caused this Note to be issued on
and dated , 1990.
Vice-President
President
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C-3
CERTIFICATION OF REGISTRATION
It is hereby certified that the foregoing Note, as originally
issued on , 1990, was on said date registered in the
name of ENIVID *fi$YN.4.0~."iJ.1 corporation, a Minnesota corporation,
!!'!:':!!:!I~g!!'fll'!'~~~ir' N~~~, t~~:, u::er:r;ne~e~~st th~~ ~~;
registered the Bond as to principal and interest on the Note in the
name of such Registered Owner, as indicated in the registration
blank below, on the books kept by the undersigned for such
purposes.
NAME OF REGISTERED OWNER
DATE OF
REGISTRATION
SIGNATURE OF
EDA OFFICIAL
BNI\7ID I!I.I~I:I:I!II:I! Corporation
, 1990
3062
C-4
PRINCIPAL LEDGER
DATE OF ENTRY
PRINCIPAL INSTALLMENT
3062
C-5
SIGNATURE OF
EDA OFFICIAL
PRINCIPAL LEDGER
DATE OF ENTRY
PRINCIPAL INSTALLMENT
[Additional pages to this Ledger may
be added as needed.]
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C-6
SIGNATURE OF
EDA OFFICIAL
EXHIBIT 0
ASSESSMENT AGREEMENT
and
ASSESSOR'S CERTIFICATION
By and between
THE PRIOR LAKE ECONOMIC DEVELOPMENT AUTHORITY
and
ENIVID ~i1! CORPORATION
This document drafted by:
BRIGGS AND MORGAN
2200 First National Bank Building
Saint Paul, Minnesota 55101
(612) 291-1215
3062
D-1
THIS AGREEMENT, dated as of this _ day of ,
1990, by and between the Prior Lake Economic Development Authority
~~~o~~E~i~~njiiiz!~~i~~jl~llil!lII~1fIr~r(t~~rp,~~:~;~~~) ~ Minnesota
WITNESSETH, that
WHEREAS, on or before the date hereof the EDA and the Company
-~
re~ir""pr'operty""located in the EDA' s Redevelopment proj ect NO.2,
pursuant to which certain property, hereinafter referred to as the
Development Property and legally described in Attachment A hereto,
is to be developer to the Company; and
WHEREAS, the EDA and the Company desire to establish minimum
market values for the Development Property and the improvements to
be constructed thereon by the Company pursuant to the Development
Agreement (as such property and such improvements may exist from
time to time, the "Assessed Property"), for the calculation of real
property taxes, or taxes in lieu thereof pursuant to Minnesota
Statutes, Section 272.01, or any successor statute, pursuant to the
provisions of Minnesota Statutes, Section 469.177, Subdivision 8,
a copy of which is attached hereto and made a part hereof as
Attachment B:
NOW, THEREFORE, the parties to this Agreement, in con-
sideration of the promises, covenants and agreements made by each
to the other, do hereby agree as follows:
1. The minimum market values which shall be established for
the Assessed Property as of January 1, 1991, and continuing for
each January 1 thereafter to and including January 1, 2000, shall
not be less than $900,000.
2. The minimum market values herein established shall be of
no further force and effect and this Agreement shall terminate on
December 31, 2001, to the effect that the 1991 payable 1992 through
the 2000 payable 2001 property taxes shall be the property taxes
subject to this Agreement.
3. Nothing in this Assessment Agreement (a) shall limit the
discretion of the Assessor for Scott County to assign market values
to the Assessed Property in excess of the minimum market values
provided pursuant to paragraph 1 of this Agreement or (b) prohibit
3062
0-2
the Company from seeking through the exercise of legal or
administrative remedies a reduction in such market values for
property tax purposes; provided, however, that the Company shall
not seek a reduction of the market values of the Assessed Property
below the minimum market values provided pursuant to paragraph 1
of this Agreement so long as this Agreement shall remain in
effect.
4. Neither the preambles nor provisions of this Agreement
are intended to, nor shall they be construed as, modifying the
terms of the Development Agreement.
5. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the parties.
THE PRIOR LAKE ECONOMIC
DEVELOPMENT AUTHORITY
By
Its President
By
Its Vice-President
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0-3
ENIVID RlAtmI CORPORATION
...................... ,
a Minnesc)"€"a......Corpora tion
By
Its President
[Execution page of Company to Assessment Agreement between ENIVID
1ti1.J..MIiI1~ Corporation and the Prior Lake Economic Development
AutJior'rty":'Ti~.
3062
0-4
STATE OF MINNESOTA )
) SSe
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this ____
day of , 1990, by and
, the President and Vice-President, respectively,
of the Prior Lake Economic Development Authority, on behalf of said
Authority.
Notary Public
3062
0-5
STATE OF MINNESOTA)
) as.
COUNTY OF )
The foregoing instrument was acknowledged before me this ____
day of , 1990, by patricia Divine, the President of
g:I~lill\~.l'lllli~n C~~~f:t~~n~ai~ ~;~~;~~~on~Orporation'W1IZI6A
Notary Public
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D-6
ATTACHMENT A TO ASSESSMENT AGREEMENT
Development Property
The Development Property is located in the City of Prior Lake, County
of Scott, State of Minnesota, and is legally described as follows:
Lots
2 and 3, Block 1, Brooksville Center 2nd Addition.
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D-7
ATTACHMENT B TO ASSESSMENT AGREEMENT
Minnesota statutes, Section 469.177, Subdivision 8:
An authority may, upon entering into a development or
redevelopment agreement pursuant to section 469.176, subdivision 5,
enter into a written assessment agreement in recordable form with
the developer or redeveloper of property within the tax increment
financing district which establishes a minimum market value of the
land and completed improvements to be constructed thereon until a
specified termination date, which date shall be not later than the
date upon which tax increment will no longer be remitted to the
Authority pursuant to section 469.176, Subdivision 1. The assessment
agreement shall be presented to the county assessor, or city assessor
having the powers of the county assessor, of the juriSdiction in
which the tax increment financing district is located. The assessor
shall review the plans and specifications for the improvements to be
constructed, review the market value previously assigned to the land
upon which the improvements are to be constructed and, so long as the
minimum market value contained in the assessment agreement appears,
in the jUdgment of the assessor, to be a reasonable estimate, shall
execute the following certification upon such agreement:
The undersigned assessor, being legally responsible for the
assessment of the above described property upon completion of
the improvements to be constructed thereon, hereby certifies
that the market value assigned to such land and improvements
upon completion shall not be less than $
Upon transfer of title of the land to be developed or
redeveloped from the authority to the developer or redeveloper, the
assessment agreement, together with a copy of this subdivision, shall
be filed for record and recorded in the office of the county recorder
or filed in the office of the registrar of titles of the county where
the real estate or any part thereof is situated. Upon completion of
the improvements by the developer or redeveloper, the assessor shall
value the property pursuant to section 273.11, except that the market
value assigned thereto shall not be less than the minimum market
value contained in the assessment agreement. Nothing herein shall
limit the discretion of the assessor to assign a market value to the
property in excess of the minimum market value contained in the
assessment aqreement nor prohibit the developer or redeveloper from
seeking, through the exercise of administrative and legal remedies,
a reduction in market value for property tax purposes; provided,
however, that the developer or redeveloper shall not seek, nor shall
the city assessor, the county assessor, the county auditor, any board
of review, any board of equalization, the commissioner of revenue,
3062
D-8
or any court of this state grant a reduction of the market value
below the minimum market value contained in the assessment agreement
during the term of the agreement filed of record regardless of actual
market values which may result from incomplete construction of
improvements, destruction, or diminution by any cause, insured or
uninsured, except in the case of acquisition or reacquisition of the
property by a public entity. Recording or filing of an assessment
agreement complying with the terms of this subdivision shall
constitute notice of the agreement to any subsequent purchaser or en-
cumbrancer of the land or any part thereof, whether voluntary or
involuntary, and shall be binding upon them.
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D-9
CERTIFICATION BY SCOTT COUNTY ASSESSOR
The undersigned, having reviewed a certain Assessment Agreement
(the "Assessment Agreement") between the Prior Lake Economic
~~~~~~~~~~, :u:r~~::~ta ~~~or:~~~:~::I:::I;I,:::::::.~i.m~:::g9.1'111"~I!
"Company"), and being of the opinion...that....the.iii1riliiiiiiii...ma.rk~it....values
contained in the Assessment Agreement appear reasonable, hereby
certifies as follows: The undersigned Assessor, being legally
responsible for the assessment of the above described property,
hereby certifies that the minimum market values assigned to such land
and facility to be operated thereon, as of January 1 of the years
1991 through 2000, inclusive (and continuing until such time as the
Assessment Agreement shall by its terms terminate), shall be not less
than $900,000.
Assessor for Scott County,
Minnesota
Dated:
, 1990.
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