HomeMy WebLinkAbout5A - Development Agreement w/Envid Corporation
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AGENDA NUMBER:
PREPARED BY:
SUBJECT:
DATE:
INTRODUCTION:
BACKGROUND:
HERITAGE
1891
COMMUNITY
1991
rW:5f)~A '
20)1
5 A
KAY SCHMUDLACH, ASSISTANT CITY MANAGER
CONSIDER DEVELOPMENT AGREEMENT WITH ENIVID
REALTY CORPORATION
DECEMBER 16, 1991
On October 21, 1991 the Economic Development
Authority (EDA) met to discuss a request from
Enivid Realty corporation Representative
Kathleen Nye-Reiling to continue the City's
Development Agreement with Enivid for one
year. The EDA approved the request and
authorized staff to prepare the necessary
documents. This agenda item is being written
to present the Amended and Restated
Development Agreement for EDA approval.
The EDA originally approved the Development
Agreement between the City of Prior Lake and
Enivid Realty corporation in February of 1990.
The agreement provided for a cooperative
pUblic/private effort to facilitate a grocery
store on a site ad~acent to the Priordale
Mall. The EDA, w1th confirmation of the
Council, concurred that the development would
enhance the Priordale Mall retail area. The
City committed to a Tax Increment Soils
District and the developer agreed to an
Assessment Agreement to guarantee a minimum
value.
Since February of 1990, no construction has
occurred on the site. The developer has been
unable to solidify a grocer as a tenant and
literally ran out of time prior to the
expiration of the agreement. At the October
21 meeting, the EDA discussed at length the
impact a project at this location will have on
the Priordale Mall and the city. The EDA
expressed continued support for a commercial
development on that site. with that intent,
the EDA agreed to continue the Development
Agreement for one year (September 30, 1991 -
September 30, 1992). The continuation not
only confirms the City's commitment to the
site, but provides for a more marketable
project for the developer.
4629 Dakota St. S.E., Prior Lake, Minnesota 55372 / Ph. (612) 447-4230 / Fax (612) 447-4245
DISCUSSION:
RECOMMENDATION:
ALTERNATIVES:
ACTION REQUIRED:
Staff requested support from City Attorney
Kessel and Jim O'Meara of Briggs & Morgan to
amend the Development Agreement. The Legal
Counsel recommended several changes as
described below:
Assessment Aqreement: Legal Counsel states
that an Assessment Agreement is no longer
necessary. This is due to the change in
Section 4.2(a) (pages 4-l & 4-2). The change
gives the EDA sole discretion in the size and
nature of the project. If the proposed
project does not meet a minimum acceptability
of t~e or value, the EDA can refuse to
part1ci~ate. In addition, because of the
uncerta1nt~ of a project completion date, the
EDA note w1ll now be issued upon completion of
the minimum improvements instead of at the
time of approval of this agreement.
Tax Increment Revenue: A Soils Correction
District will generate l2 years of increment.
Because of the loss of 2 years increment, the
project will not yield the same increment
value as previouslr computed. Therefore
references in Sect10n 3.1(k) have been
removed.
Additional minor changes, or references to the
changes specified above have been made to the
Development Agreement. Please review the
document that represents the changes along
with proposed EDA Resolution 91-01 for
approval.
Staff recommends that the EDA review the
changes as made by staff and approve the
document as revised. Approval of Resolution
91-0l approving and authorizing the execution
of a Second Amended and Restated Development
Agreement is recommended.
The Economic Development Authority can take
one of the following alternatives:
1. Approve Resolution 91-01.
2. Table the item for further discussion at
a later date.
3. Deny the request for the extension.
Motion to approve Resolution 91-01 is in
order.
As in past EDA actions, the Cit~ Council
will be asked to ratify the dec1sions of
the EDA. This practice was initiated as
part of the Enivid Development Process.
City Manager's Note:
RESOLUTION NO. 91-01
A RESOLUTION APPROVING AND AUTHORIZING THE
EXECUTION OF A SECOND AMENDED AND RESTATED
DEVELOPMENT AGREEMENT
It is hereby resolved by the Board of commissioners (the
"Board") of the Prior Lake Economic Development Authority (the
"EDA") as follows:
1. Recitals.
(a) The EDA has the powers provided in Minnesota
statutes, Sections 469.090 through 469.108 (the "Act").
(b) pursuant to and in furtherance of the objectives of
the Act, the EDA has undertaken a program to promote
development and redevelopment of certain land within the city
of Prior Lake, Minnesota, and in this connection is engaged in
carrying out its project known as its Redevelopment project
No. 2 (the "Redevelopment project") in an area (the "project
Area") located in the city.
(c) There has been approved by the Board pursuant to the
Act a Redevelopment Plan for the Redevelopment project (the
"Redevelopment Plan").
(d) In order to achieve the objectives of the
Redevelopment Plan and particularly to make the land in the
project Area available for development by private enterprise
in conformance with the Redevelopment Plan, the EDA has
determined to provide substantial aid and assistance in
connection with the Redevelopment plan through the financing
of certain of the public costs of development in the project
Area.
(e) Enivid Realty corporation (the "Company") has
presented the EDA with a proposal for the construction within
the Project Area of "Minimum Improvements" pursuant to and as
described in a certain Development Agreement, as amended and
restated by a certain Amended and Restated Development
Agreement, both such documents dated as of April 2, 1990,
between the EDA and the Company ( collectively, the
"Development Agreement"), stating the terms and conditions of
such development and the EDA' s responsibilities respecting the
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STATE OF MINNESOTA )
) SSe
COUNTY OF SCOTT )
CERTIFICATE
The undersigned, being the duly qualified and acting Secretary
of the Prior Lake Economic Development Authority (the "EDA") hereby
certifies that I have carefully compared the attached and foregoing
resolution with the original on file in the EDA' s offices and
further certify that the same is a full, true and complete copy
thereof, relating to the authorization by the Board of
Commissioners of the execution of a certain Second Amended and
Restated Development Agreement between the EDA and Enivid Realty
Corporation, d/b/a Enivid Corporation.
I further certify that said resolution was duly adopted by the
Board of Commissioners at a duly called and regularly held regular
or special meeting thereof.
witness my hand officially as such Secretary and the corporate
seal of the EDA this ____ day of , 1991.
Secretary
Prior Lake Economic
Development Authority
( SEAL)
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6/4 / 9 e 11i':'{I.{l'W~
...;.:.C~...mY'Af~
~ AMENDED AND RESTATED
DEVELOPMENT AGREEMENT
By and Between
THE PRIOR LAKE ECONOMIC
DEVELOPMENT AUTHORITY
And
ENIVID REALTY CORPORATION,
a Minnesota Corporation
This Agreement was drafted by:
Briggs and Morgan
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
Second Amended and Restated Development Agreement
and is only for convenience of reference.)
~
ARTICLE I - Definitions . . . . . . . . . . . .
section 1.1. Definitions . . . . . . . .
. . . 1-1
. . . . . 1-1
ARTICLE II - Representations, Warranties and Covenants . . . 2-1
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.
ARTICLE IV - Construction of Minimum Improvements~
ASDcDomcnt A~rccmcftt
4.1. Construction of Minimum Improvements
4.2. Construction Plans. . . . . . .
4.3. Commencement and Completion of
Construction . . . . . . . .
section 4.4. certificate of Completion . . . . . .
Scotion 4.5. AODcoomcnt Agrccmcftt . .
Section
section
section
ARTICLE v - Prohibitions Against Assignment and
Transfer; Indemnification . . . .....
Section 5.1. Prohibition Against Transfer of
Property and Assignment of Agreement .
Section 5.2. Release and Indemnification Covenants
ARTICLE VI - Events of Default . . . . . . . .
Section 6.1. Events of Default Defined . . . . . . .
Section 6.2. Remedies on Default . . . . . .
Section 6.3. No Remedy Exclusive . . .. ...
Section 6.4. No Additional Waiver Implied by One
Waiver . . . . . . .
Section 6.5. Agreement to Pay Attorneys' Fees and
Expenses . . .. ....
ARTICLE VII - Additional provisions ....
Section 7.1. Titles of Articles and Sections . . .
section 7.2. Notices and Demands . . . . . .
section 7.3. Counterparts. . . . . . . .
Section 7.4. Law Governing . . . . . . . ...
Section 7.5. Amendment and Restatement of Prior
~:;!s~!!nI:::il::i::I:t1I::::I\:::_iiiii)ei:l:i.\:tiD1~D:1.:i~iil. . . . .
. . .
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. 3-1
. 4-1
. 4-1
. 4-1
4-2
4-2
4 3
5-1
5-1
5-2
. 6-1
. 6-1
6-1
6-2
6-2
6-2
. . .
7-1
7-1
7-1
7-1
7-1
. 7-1
l;tf;::!o;H.!!.~!n~.;~~!DR~"_;jfit:ig;t~;;;"f^.)ttifJ
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
. 8-1
. 8-1
SIGNATURES
EXHIBIT A - Legal Description of Development Property . . . . A-l
EXHIBIT B - certificate of Completion . . . . . . . . . . . . B-1
EXHIBIT C - Fora of Tax Increment Revenue Note . . . . . . . C-1
EXHIBIT D Fora of AsscssmCftt A~recmeftt . . . . . . . . . D 1
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~~j3-~~mt~,~~.DEVELOPMENT AGREEMENT
THIS AGREEMENT is dated as of , ~ iJJlI, is by
and between the Prior Lake Economic Development Autlior'lty and
Enivid Realty corporation, a Minnesota corporation, d/b/a Enivid
Corporation, and provides as follows:
ARTICLE I
Definitions
Section 1.1. Definitions. As used in this Agreement, the
following terms have the following respective meanings:
"Agreement" means this Development Agreement, as the same may
be amended.
".\:J:Jc:JoJllcnt Agreement" mC~lnO the agrcement in the fona of Exhisi t.
D ~hich io to DC cxccutcd DY t.hc Company pursuant t.o cection 4.5.
"Certificate of Completion" 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.
"Comoany" means Enivid Realty Corporation, a Minnesota
corporation, d/b/a Enivid Corporation, or its successors or assigns
under this Agreement.
"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.
"Development Property" means the real property described in
Exhibit A of this Agreement.
"EDA" means the Prior Lake Economic Development Authority.
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"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 Imorovements" means the approximately 39,090 s(f\iare
feet aupcrmarket aAd all ether 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.
~t'~i.C?~l\~~ln~Ji~~.~Ii!::.:~n!".:Ba:::".!:'.'s!I~Qi~":"m:.::.!i3!:i!II!;]::mlfiJiti
"Pro; ect" means the Development Property and the Minimum
Improvements.
"Site Imorovement 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 Financinq District" means the EDA' s Tax
Increment Financing District No. 2-1 within its Redevelopment
Project NO.2, aa aaid Tax IAorcmcAt Diatriet exists er is iA the
proocao af bcinq catabliohed and ccrtified ao of the date of this
AgrccHlcnt.i\ [Note: As of the date of this Agreement, the
Development Property and the property constituting the Tax
Increment Financing District are the same.]
"Unavoidable Delavs" means any delay outside the control of
the Party claiming its occurrence which is the direct result of
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strikes, other labor troubles, unusually severe or prolonqed bad
weather, Acts ot God, tire or other casualty to the Minimum
Improvement., litiqation commenced by third part i.. which, by
injunction or other similar judicial action, directly results in
delays, or acts of any federal, stat. or local qovernmental unit
(other than the EDA) which directly result in delays.
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ARTICLE II
ReDresentations. Warranties and Covenants
section 2.1. ReDresentations and Warranties bv 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
ComDany. 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
business 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 Kinimum Improvcmenta arc expected to be
con3tructcd at a cost not leaa than approximately $900,000.
tat 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.
.-fet-~I:J.J . The Company will u.se its ~est efforts to
obta1n, in a t1mely manner, all requ1red perm1ts, 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.
~l.:):: 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
24804
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requirement applicable to the Company or ot any provision ot
any evidence ot indebtedness, aqreement or instrument ot
whatever nature to which the Company is now a party or by
which it is bound.
f9T~{#~ The construction of the Minimum Improvements
would notWbe undertaken by the Company, and in the opinion ot
the Company would not be economically teasible within the
reasonably foreseeable tuture, without the assistance and
benefit to the Company provided for in this Agreement.
2-2
ARTICLE III
pro1ect Undertakinqs
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 desiqnation 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
SO()I1Ci.S.P:r.C!c..~i<::C!l:>l~d~.O!l()'M;t~.~gdd~!1'~.dexecu t ion and del i very of
the<:~~t~lc;~~@p~~c)Jip~.~";gnYii.4.# this Agreement, provided
no:EverifOfbefaulfsllaTlhiive.....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 written
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 ocour from
time to time prier te or giXX::::m:~in connection with the
issuance of the Certificateot.""'Comple€ion, 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. 'Phe EDh Nete shall se sl:lrreJl\scres to the EDA for
purposes of rccorain~ ouch amounts en the rriJl\eipal Lcdqer of
the EDA note from time to time. The agqregate 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.
(c) The EDA shall have established the Development
Property as a "soils condition" tax increment financing
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district pursuant to and a. defined in Section 469.174,
SUbdivision 19, or the Tax Increment Act, which actions the
EDA shall use its best efforts to process and accompliSh.
(d) Subject to the provisions of the EOA Note, the
principal of and interest on the EDA Note shall in the
aggregate be payable on December 1 of the years ~ PI.
through 2001, inclusive (the "Payment Dates"), in'""'€ne
respective amount or amounts described in this subsection.
The sole source of funds available for payment of the EOA'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 ~ l.i~J 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 EOA
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
not 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
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
3-2
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 EOA under this Section or the EDA Note but
shall thereupon be extinguished.
(k) 1ft fte CVCftt ahall the EDA pay te the Cempafty mere
th~A $444,320 purauant to the tcrma ef the BOA Note or thia
ScctioA.
~ 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.
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ARTICLE IV
Construction of Minimum ImorovementslAoocoomcnt A~rccmcnt
Section 4.1. Construction of Minimum Imorovements. 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
~ijljt~i~li~~!I.~~}J~~li~J_;.IIJQ~
writlhg.bythe EDA within .w jo. 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
within 30 days after receipt by the Company of written
notification of the rejection, accompanied by a written
statement of the EDA specifying the re3pects in ..:hich the
Con:Jtruction I'l;ln:J Dubmitted by the comp.~!\y..,.~.~.~.~..~.~...~t::)~.rt)rm to
thc requiremcnt:J of thio Cection 4.2. #~f~$9~::::~~#!i.'~9'P@ The
provisions of this Section 4.2 relating.'.€.o....'api5F6Var;.....relection
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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(b) If the Company desires to make any chang_ 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 aemmCAce
conotructioft of thc Kiftimum ImprO?CmcAts eft er Bcfere 3~fte 1, 1990,
;)nd shall have substantially completed the construction of the
~~.1t!~;.a ~mprovements not later than Dcocmecr 31, 1990 .:;::::!i.R!;I~~
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:
----afMi
(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;
(ii) The Company shall have received from the City
of Prior Lake a Certificate of Occupancy for the Minimum
I.provementsl&!~
.~_IfIi~_
(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
Improvements in accordance with the provisions of this
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Agreement or i. otherwise in default under the terms of this
Agreement (includinq without limitation an Event of Detault
hereunder), and what measures or acts it will be necessary tor
the Company to take or perform in order to obtain such
Certificate ot Completion.
Section 4.5. Assess.eRt 1.ljreemeRt. CaRtemporaReausly ~.itft the
executioR aRa aelivery af this AljreemeRt, the CampaRY aRa t:a ::A
ohall exeoute aRa aeliver the Assess.eRt ^ljreemeRt fa e
Develop.eRt Praperty. The Assessment Atree.eRt shall praVi~ :::t
the minim\Bl market \.ah:les of the DevelopmeRt Praperty f 1
property taxatio8 purposes as af JaR~ary 1, 1991, aRd as af eaoh
JaRuary 1 thereafter to aRa i8oluai8lj Ja8uary 1, 2999, shall Be
$900,000.
The Assessment AgreemeRt shall termiRate 08 Dece.eer 31, 2091, to
thc effect that the Asscssment Aqreeme8t shall apply to the 1991
payable 1992 throuqh the 2000 payaBle 2001 property taxes far the
Development Property.
Thc Asoesoment Agreement ohall Be aG much a part af this Aljreeme8t
ao though sct forth in full herein. The Aeceoeme8t AqreemeRt shall
~: f~:cd far recora in the offise of the County Reooraer a8a/or
Reqiotrar of Titles of Scott Cou.nty, as appropriate, a8a s~ch
filing Ghall COR3titute notice to any sUBce~ent eRo~ra8ecr or
~~~:~~:=r of the Development Property, whether valuntary or
~~~~:~~t~ry, ana the Asoeacmc8t Aljreemc8t shall BC 8iftdi8' aRa
~~f~rceaBle iR ita c8tirety aqainat any such sUBsc~ent purchaser
or encumbrancer. The Company shall pay all real prepcrty taxes, or
taxes in lieu thereof pursuaRt to KiRnesota Statutes, SeotioR
:~2.~~1 ~~ any similar or successor statute, payaBle vith reopect
to the Development Property ana purs~aRt to the previaions af the
~:7:~o~n~ Aqrecmeftt ana any other statutory or cORtractual auty
~;hich shall accrue sUBscquent ta the date of exeeutio8 of this
Agreemcnt. Thc Compa8Y agrccs that prior to the terminatioR of the
~ooeooment Aqrcemefttl
(a) It vill Rot seek aamiRistrative re7iew ar judioial revic~ of
thc applica8ility sf afty tax statute relatin, ta the t3xatioft of
the Dcvelopment Praperty in acceraa8ce with the AssesomeRt
AgrccmeRt ar raise the iRappliea8ility af aR} such tax 3tatute a3
a defen3c ift any preeeeainljs, iRcluainlj aeliR~eftt tax prooeeainq31
(b) It ~ill Rot seek adminiotrati7e re~iew ar judieial review of
the constitutionality af any tax statute relatin, ta the taxation
of the Development Property in aooaraaRoe \lith the AssessmeRt
Agreement or raise the UftcoftGtitutioRality af aRY suoh tax statute
as a defenae ift afty proceeaiRlj8, iRel~dift, delift~eRt tax
proceediRqsl aftd
(c) Exccpt as permitted ift the lact para,raph af this seatiaR, it
will not seek afty taK deferral or a8atement, either preaefttly or
24804
4-3
. &~ate er federal lav, ef the
i"el. a\:lthorieed \:lAder aft)! t that ft8thift' ift this
:1':::1:: ;f ~. 9.~.1.p.en~ pr.p.r~y'~.:::rl pr.~i~i' t~. Q..,any
a .r in tII. 1.....SS..lIt A'''.,....n d sr a.1n1shaU ve
~:::1S:eekill' tIl!'8"'~ ~loe k e:e~:~::a .:sst;:e. ts tile ge~.ls,..:n:
remedies te red\:iee the mar e " ~ less thaft the .iftim~ mar e
Ate . .hieh are fte t:
Property te ~~e~ 'ft the ABoess.eAt A!ree.eft .
ual\:les preBerzlC-ea 1
. '.. "1>.11 ..... an" losf.....
ea~ee ~e Be pa1 , - t:, . the
The Ca.pallY a,raes t.. pay ar ... st..y~.. aollle. ther..e .a "d
allY fll1e, penalty, lnterestl Sr t:~e taKes, assese.ents, water an.
Renpayment tltere..f, all rea ,esaao"pan.y taK "I' sl.ilar tax, ,a~
.e' 'ar rates all. ohar,os ~ an~ .. ohar,es ,eneI'd an. .pee.a "
· ouer....cntal lavu,. an , 'ell as fareseen, of any
:;:~~ar~ ~floI elltraor. ll1ery, ,~n~ ore:::na ::a~a.." , 1 ev i...., aall f ....... "
k' a aRS Aat\:lre whataecver, ,"h10h t te thc Dc?clepmcftt Propert~
i~;osc" ar beeo.o payable ""loth res~~~ian of thls A,ree.ent (all a~
or any part thoreof bcf aro t c ..eio ao . 1"0 a it ions'). Tfte cosp~n~
which arc hcreiAaftcr 7cf~r~~r aAY char!cs or fees impoaee er
ohall aloe be rcapono1~l thc ~3aeoomcAt A!reemeftt.
rccording thio ]~grcClBCftt or. ,
of the BDA, to f\:lr~1ah ~e the.BDA,
The CompallY a,reee, "pent::~:~; "'hen any l'"1'e,al hen ~s t:~~ a:~:
",.th.n 69 "ays af~~r, ef this Sootien, efho1a~ ree~.p , te tile
punmant to any pro.1010R 't. or other proof aat1Clfao or~
'atc tax1R! author1 ~,
appropr~ , thc pa}~cnt thcreof.
ED' cn"cn".n, # 'th
.., . 1 ta e.... na.e an" 1n ,es" . ~. .
The Compafty .ay, at its cX:peftse, 1~a afte otlier ehar!ea, pro:" Hied,
~~~~~:; a:~a:"::e t::;:ts '::fe~":~~.....p::y :: :::' ..:::::t:::~:~ ~:::~
jUd.~.ai rev.cw ef the appl1sa .a~ ti~, te the taxatien ,Sf. e
.. to aftY tax otatute re a ,",' at to the restr1ot10ftS
purauall~, h H be et..iaUy a..~)e tall"
Dc,-clopmellt Freperty e ~ on t' Il and the ABaeaOllellt A'Jree.ell., ..
thcrcon cORtaiRcEi ift th1!3 Sec 10 'fioally agrces to pay, ..Jhcft uc
ill auoh re'Jar.., tho ce.pallYt:::e~f allY kl1l., all preperty fta~::
and lri'i tho~t pretcot or OOft JIliftimWl .arket val~ea 0
a 'ablc *ith rC!3pcot to t~e ift the ~sacsB.eAt A!reelBe~t. 1ft
~e~eleplllellt Fr~er;~'p::'~~::~"::"hBt, th~ ce.'-!....r1~:yB~e::~:Bt::
~::e::c:;e~~a':.in:au er 8th?r eha~'Jee a';. P"::1::s a:n s..,,~ es~te.t ~...
tC!3teEi to remaift uft~a1d dUr1ft' th h:ll ift its sele d1aoret10ft
~:~ appeal tlocrefres uIll,,~s ~he t~O: : 1..1sn sf ee....sel a~.. am
~:~;:~:=!~::::~~~'i:i;::i:.. t~:e C="=~:e=:":::::F:::e~:::!1:m
~te.a ent all" the Aoaeaalllellt A'Jree.ell a.ellts er ehar'Jee shall
ngrccHl . ..hioh e"eftt ouch taxclJ, aaoe!3
affcctcd, 1ft ", "
bc paid forth~1th.
24804
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ARTICLE V
Prohibitions Aqainst Assianment and Transfer:
Indemnification
Section 5.1. Prohibition Aqainst Transfer of prooertv and
Assiqnment of Aqreement. The Company represents and aqrees 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 Aqreement 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 aqreed to be
subject to all the conditions and restrictions to which
the Company is subject unless the Company aqrees 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
other legal documents involved in effecting the transfer
of any interest in this Agreement or the Development
Property.
24804
5-1
24804
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,
includinq its independent contractors, consultants and legal
counsel, servants and employees thereof (hereinafter, for
purposes ot 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 entity 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 Aqreement.
(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 Aqreement 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.
(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
24804
6-1
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 Imolied bv One Waive[. 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. Aqreement to Pav Attorneys' Fees and Exnenses.
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.
24804
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 Realty corporation, c/o
Boderman and Associates, CPA's, 12800 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 Governing. 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.
Section 7.5. Amendment and Restatement of Prior Agreement.
The EDA and the Company executed and delivered that certain
Development Agreement, dated as of April 2, 1990 (the " I'rier
9#:j:9:,jJl~:1 Agreement"), which was rec~rded ..,in t~e of~ ice of ~~,~ Scott
c...'.t'.".'R d A '1 13 1990;~:.:~U"":~lRi6Uii,.,:trE~'t1Imll Th
c~~~a~y :~~~~~d o~he p~~ ier b.iJ)lldli*::'>>K~ri"e'~eJlf::::~~hdf,:,~tl1;g;>'~n~me o~
"ENIVID corpora~ion" and the""'."C'Ompany has sinoe gpD.l advis~d
the EDA that 1ts correct legal name is as prOV1aea': in thl.S
Agreement and that the Company ftae fill filed in the office of the
24804
7-1
Minnesota Secretary of State a Certificate of Assumed Nama relating
to the Company's conduct of its business under the naae of "Enivid
Corporation.. The lOA and the C:~ .
this A reeael'\t, t.. .;;~\l.'t.lmr~>" d'.. ',:.~. .. ..
rid '"If'''''1:;;. -'~~fflll.,*,.".,....,..".>....,,,,,.,.x.,,,>>,,,,>@,',,,,:<,,,...~ .; ~, .' .'.. ?'~~
!~~~!I&n.II~1.xecu'on 0 e
rrfor.'Q#li<n.p~~..ACjr-eement, to reflect the correct the legal name of
the company..
iii;iii~~i~~',
.'- ......................
..:.:.:.;,......:.:-;.-,:-:.::;.:.;.;.:.;.:.;.;.;.:.;.;.:.:-:.:-:.:.:.;.:.jo>>;'
~.:!.~illll:tl(EJf.~
Pr i6r'.Agfeemerifsh"atrSe...arid'..i:emaTri"'..lri""!ulr..for'c'e....ai"'J!ct .
24804
7-2
ARTICLE VIII
Termination of Aareement: Expiration
section 8.1. The EDA's ODtion to Terminate. As provided in
Section 6.2 hereof, the EOA may terminate this Aqreement 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. Exoiration. 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 Exoiration. 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.
24804
8-1
IN WITNESS WHEREOF, the EDA and the Company have caused this
~9!eement to be executed by their duly authorized re,re sefttatives
t.P........r.i.4U\_ .
....... ......,.~;~~ .
PRIOR LAKE ECONOMIC DEVELOPMENT
AUTHORITY
( SEAL)
By
Its President
By
Its Vice-President
l~~:~~;~~n byOfEni~ii: Rl=~'~B;g.!Pl~~f.~[!.!.IPlll'~11
page. ]
24804
8-2
ENIVID REALTY CORPORATION,
A MINNESOTA CORPORATION
By
Its President
l~~:~~;~~nbe::::n t~Oe P~~~i!l"!!!:r~'_WAU~~~l~~m:~~
the above-named corporation.]
24804
8-3
STATE OF MINNESOTA )
)ss.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this
day of , ~ I"., by and
, the presid"eiif:"and vice-President, respectively,
of the Prior Lake Economic Development Authority, on behalf of said
Authority.
Notary Public
24804
8-4
STATE OF MINNESOTA )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
day of , ~ $.~,I;, by Patricia Divine, the President
of Enivid Realty corporation;" a corporation organized under the
laws of the State of Minnesota, d/b/a Enivid Corporation, on behalf
of said corporation.
Notary Public
24804
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
24804
A-1
EXHIBIT B
CERTIFICATE OF COMPLETION
WHEREAS, the Prior Lake Economic Development Authority (the
"EDA") and Enivid Realty Corporation, a Minnesota corporation,
d/b/a.. Eni vid Corporation (the "Company"), executed a certain
Sec9DCl Amended and Restated Development Agreement (the "Development
Agreement"), dated as of , ~ 1111, relating to
certain property in the City of Prior Lake, Mfnne:sota, 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.]
24804
B-1
EXHIBIT C
FORM OF EDA NOTE
No. R-l
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF SCOTT
PRIOR LAKE ECONOMIC DEVELOPMENT AUTHORITY
TAX INCREMENT REVENUE
NOTE OF 1990, SERIES A
(.~.HE~lDED(~I~!m..;gg~. AND RESTATED)
The Prior Lake Economic Development Authority (the "EDA")
hereby acknowledges itself to be indebted and, for value received,
hereby promises to pay to Enivid Realty corporation, a Minnesota
corporation, d/b/a Enivid Corporation, or its registered assigns
(the "Registered Owner"), but only in the manner, at the times,
from the sources of revenue, and to the extent hereinafter
provided, the principal amount 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 ~ !!:!:;! 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 ~j;':li 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
24804
C-1
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 Oates) 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
$~0ncS. Amended and..,..~ca.~tated Development Agreement, dated as of
..... ... ... , ~ .!'I~~ (the "Development Agreement"), as the same
may be amended from.~tTme to time, by and between the EDA and Enivid
Realty corporation, a Minnesota corporation, d/b/a Enivid
corporation<1:Ai'~gCiJllpiPY~), and, further, if pursuant to the
occurrence of'ariEvEirif6f"Default 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 EOA 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 EDA, 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.
This Note may be assigned but upon such assignment the
assignor shall promptly notify the EOA 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
24804
C-2
Note sUbject to the foregoing condition and subject to all
provisions stated or reterenced 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 trom tederal 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 , ~ ~l=lli%0S.
Vice-President
President
24804
C-3
CERTIFICATION OF REGISTRATION
It is hereby certified that the foregoing Note, as originally
issued on , ~ ~II.W, was on said date registered
in the name of Enivid Realty Corporation, a Minnesota corporation,
d/b/a Enivid corporation, and that, at the request of the
Registered Owner of this Note, the undersigned has this day
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
Enivid Realty Corporation
, 1999 _~~~1]::.::':':;::fm
24804
C-4
PRINCIPAL LEDGER
DATE OF ENTRY
PRINCIPAL INSTALLMENT
24804
C-5
SIGNATURE OF
EDA OFFICIAL
PRINCIPAL LEDGER
DATE OF ENTRY
PRINCIPAL INSTALLMENT
[Additional pages to this Ledger may
be added as needed.]
24804
C-6
SIGNATURE OF
EDA OFFICIAL
EXHIBIT D
ASSESSMENT ACREEKENT
aM
~SSESSOR'S CEnTIFICATION
By and setw~~ft
THE f'RIOR LlJ<E ECONOMIC DE\7ELOI"MBNT Al.PI'HORITY
aM
ENIVID REALTY CORI"O~TION
Thio document drafted sY'
BRIGGS MlD KORGAN
2200 First tlational Bank Buildift4!j
Saint Paul, Minnceeta 55191
(612) 291 1215
0-1
'l'~~& 1O.C~EEKENT, dated as af this day af ,
~~~~, ~ ~~d ~t~~~ the Prier Lake Ee8ftsii'I8gelt:elepaeftt hutherity
~;~~ "~~'.:). and ~1'\ivid. Realty Corperatieft, a Hi1'\1'\eseta ~;;;ti;~,
d/e/a Enlvld corperatlen (the "Ce.paftyU),
WITtlESSETH, that
~~~~, .~: 8r Before the date hereef the :~~ ~': tihe ~:~fa~y
~~~~ e~:ered ~te a Develop.e1'\t Agreeaeftt, da 0 A I
199"0, as a1lleRdElll and restated by tkat eartain AlIandell a"1 S::~~
~~~el~:~t 1O.qrcc.e1'\t, dated as ef , 1999 (eo1...e - I
~~~ '~~e":l~e~e~~ AlJree.ent"), regardi1'\g certaift ~i ;;;p~;ty
laeat~ in the E9A' s Rell~ve lapment praj eat Ha. 2, P....;~;;t t:;' ;=~:
~:::~:~ property, here1nafter referred to as the Develo _
Property ana lcgally deDcriBcd i1'\ Attachme1'\t A herete, is t; ~;
developer to the COmpa1'\YI and
WHEREAS, the ED~ aftd the Compa1'\Y desire te estaBlish mi1'\i.~
~~r~:t valueo for the Develop.e1'\t Property a1'\d the iapr~:e~=:: ::
~: :~~~:ructed thcreo1'\ by the Compa1'\Y pursuant to the e
~?:=~meftt (ae euch praperty aftll sueh iaprevemeftts may eKi~ ::~
time to time, thc "1\ascsacd Property"), far the ealoulatiOft 1
propcrty taxcs., or taxes in lie\:l thereof p\:lrsua1'\t te a~ft~~a::a
statutcD, Scctlon 272.01, or any sucoea60r statute, p\:lrsu e
proviDionD of HinneDota Statutes, Sectio1'\ 469.177, SUBdiviaie1'\ 8,
:; cepy of t+hioh io attaohed hereto al'\d made a part hereof as
Attachmcnt Bs
NOW, THEREFORE, the parties to this .\greemc1'\t, i1'\ 001'\
:~d:~~t~~~ ~f the premiDes, oovena1'\ts a1'\d agreementa made hY ;;~h
to the other, do hereBY aqree as felle~al
1. The minimWB .arJtet val\:les whioh shall Be estaBt;:~:: ~~r
~~: A;::.~Ded Property aa ef January 1, 1991, and COAt . r
each JaAuary 1 thereafter to and il'\oluding January 1, 2999, oh;ii
not be 1eso tha1'\ $999,909.
2. The minimWB market values hereil'\ estaBlished shall se of
no further ferce aAd effect al'\d thia Agreemeftt ahall term!:::: ::
~~:e~~::: 2!91, te the effect that the 1991 payaBle 1992 . u
:~~ ~~~o pa~aBle 2991 preperty taxes shall Be the prepe;tyt;;e;
oubjeet ta thia ~lJreemeftt.
3. Nothing in this Aaoesameftt Agreemeftt (a) shall limit the
diDcrctioA of the Aaseaoor !or Scett Coal'\ty ta.a~si9ft ma;k~t ::i:~;
to the Aosesacd I'reperty ~A exoess ef the muumWl mark ~ -- a
~~~vi~:~ purDuaAt to par~qrapft 1 of this ~greemeftt ar (B) P::~iB~;
:~: ~~~~a~y frem aeeJul'\g threagh the exereise af le _
::ldminiatrati ve remedies a rcauetieft ift sueh market vai~e-; f;;
~:~P:::l tax pur~asesl pravidcd, hawe~er, that the Ce.pafty :::~;
=~~ ~:~ a ;:~~ct10A ef the market values af the Assessed prar _
~~~~w :~: minimWl market -.ralues previded purs\:laftt ta pa;;~-aPh 1. ;f
thi~ AgreemcAt Da loftg as thia A~reemcftt shall remaift ~ ;ff~;t:
0-2
4. tlei~her tho prea.eles ner pravisiens sf ~~is A,reement
are intended te, ftar shall they a8 eanstr~ed as, aedifyin9 the
terBS af ~he Development A,reement.
5. 'Phis AlJrccment shall in\ire te the ~enefit ef and ae
eindinlJ ~pan the aueeeaaers and assi,ns af ~he parties.
6. 'Phis AlJreement amends and restates that eer~ain
ASGessmcnt AlJreement, dated as af April 2, 1999, ta refleet the
full lClJal name of the Company. The Ceapany and the EDA ifttcftd
that this ^lJreemcnt Ghall ~e effective as af the date ef Bueh prier
alJrecmcnt aftd that Gaid prior alJrcement, except as ae .edified,
3hall rcmaift in full foroe &ftd effect.
THE PRIOR L1~E ECONOMIC
DEVELOf'KENT .\U'l'HORI'PY'
D-3
ENIVIO ~y CORPORATION,
a Hiftfteseta Qerperatieft
[Execution pa~c of Company te Aaaeaamcnt A,rcemcnt Between Enivid
Realty Corporatien aRE! the rrier Lake Beens.is Devclepaef\t
.~uther i ty . J
oe44
STATE OF MINNESOTA )
) CC.
COUNTY OF CCO'I'T )
The fore~oiR~ iRstr~eR~ was aakftewled~ed aefere _e ~ftis
day of , 1999, ay -ai\d
, ~fte PreaideRt aRd Viae Presideft~, respeeti vely, of
the Prior La)tc EoeAoaio Dcvelop_eR~ A\i~heri~y, eft aehalf ef said
Authority.
Notary I'ualio
DeS5
STATE OF HIUNES()tllA)
) ssw
COmITY OF )
The fore~aift~ iftBtrameft~ ~as ackftewled~ed sefere _. ~ftis
day of , 1999, by Pa~rieia Divifte, ~fte Presideftr-et
Eflivid Rcal~y Corporatieft, a MiMeseta eerperatieft, d/'tJ/a Efti.;id
Corporatioft, aft Behalf af said eerpera~ieft.
Notary Publie
De66
ATTACHMENT A TO ASSESSMENT ACREEKBNT
De~elep.eft~ Prepe~ty
The DevelopmeRt Property iG leeated ift tft8 City ef Prier La]te, Ce~ftty
of Scott, Statc af HiRftcsota, aftd is le~ally desorised as fellaws.
LotG 2 aRd 3, Block 1, BreekGville CeRter 2ftd Additieft.
De?7
ATTACHMENT B TO ASSESSMENT ACRBEKBNT
Hinneceta Stat~tes, SeetioR 469.177, &uBdivisieR 81
An aut~ority may, upeR eRteriR! iRte a developmeRt or
redevelopmont a~eement pursuaRt to seatieR 469.176, suBdivisiaR S,
enter into a vritten assesomeRt a!reemeRt iR reeardable fera vit~ t~e
developer or redeveloper af praperty vitftiR the tax iReremeRt
financin~ district whic~ establis~es a .iRim~ market value af t~e
land and oo_pleted impro7omcRts to be eeRst~eted t~ereoR uRtil a
opecifica tcrminatioR date, whieh date shall be Rat later thaR the
date upon ~hioh tax iRcremeRt vill Ra laR!er be remitted ta the
Authority purouant to seotioR 469.176, suBdivisioR 1. The assessmeAt
agreemcnt chall BC presented to the couRty assessor, or city assessor
having the IH).".,crs of the county aGoesser, of the jurisdiotion in
~:hich the tax inorement finanoiA~ distriot is located. The assesaor
ohall re...ie~ the plana and epeoificatioAs for the improvc_cAts to Be
conotructed, rcviev the market valuc previously assi,Red to the land
upon which the improvemente arc to Be OOAotruoted aAd, so lOR, as t~e
minimum market value cOAtaiAed iR t~c asseSS_cRt aqreemcRt appears,
in the judqmeAt of t~e assessor, ta be a reasonable estimate, shall
execute the followinq certifioatioR \ipOR such aqreemeRtl
The underoiCJAcd aaoeooor, BeiR! leqally respEmsible far the
assessmcnt of t~e above descriBed property UpOR eompletion of
the impro-:emente to Be constr\::1oted thereoR, hereby oertifieo
that the market '\'alue assiqned to suoh land and impro'Jement3
upon oompletion shall not Be less than $
Upon transfer of title of t~e laRd to Be de~eloped or
redeveloped fro. the authority to t~e developer or rede~eloper, the
a3ceaoment a~rcc.ent, to~ether vith a eopy of t~is sUBdivisioR, s~all
be filed for reoord and recarded in the office of the co~ty recorder
or filed in the effioc of the rc~iatrar of titles of the eoQftty vhere
the real eotate or any part thereof is situated. UpOR eompletion of
the improvements BY the developer or redeveloper, the assessor s~all
value the property pursuant to seotioR 273.11, exoept that the market
value a13siqned thereto shall Rot Be less thaR the miRim\HI market
value contained iR the assess_eRt a~eement. NothiR, hereiR shall
limit the discretioR of the assessor to aasi9ft a market ~al\::1e to t~e
property iA exce13S of the miRbnm market ~'ahle eORtaiRed iR the
aoceoomcnt aqreement nor prOhiBit the developer ar redeveloper from
oeekin~, throuqh the exercioe of admiRistrative and le~al remedies,
a reduction in mar)cet value far property tax purposes 1 provided,
ho~eYer, that the developer or rcde~eloper shall net seek, ftsr Ghall
the city a33eaoor, the county asoessor, the county auditer, afty board
of review, any board of equalizatioft, the oommissieftor af reven~e, or
any court of this otate grant a red~etien ef the market val~e Below
the miftimulI market value cOl'ltaincEl in the aaoellsment a~reement duriA~
the tent of t~e a~eement filed of reoord refJardless af aatllal market
valueD \I~ich may reoult from incomplete construction of improvements,
deatruction, or Eliminutioft BY any cause, insured or \::1ninsared, except
in the caoe of acquisition or reac~illitioft of the property BY a
DeS8
puelis efttity. Resardin9 ar filift9 af aft assessmeftt a9reemeftt ssm
plyift' vith the terms sf this suBdivisiaft shall sanstit~ta ftatiea af
the a,reemeftt te any suese~eftt purshaser ar efts~raneer ef the laftd
or any part thereaf, whether valufttary er invaluntary, aftd shall ee
bindin, upaft the..
De99
CERTIFICATION BY SCOTT COUNTY ASSBSSOR
The unsersi,ned, havin, revieved a eer~aift Assessaeft~ A,reeaeftt
(the "Aoacssaent A,reelleftt") Be~Veeft the Prier Lake Boefteaie
Develapment A\::ltherity (the "BDAII) aftd Bfti..rid Realty Cerperatieft, a
Kinfteaota oorparatiaR, d/e/a BRivid Cerperatieft (the IICempaRY"), aRd
Bein, of the apiRiaft that thc lIinimem lIarket valQes eefttaiRed ift the
Aaoeoolleftt A!reemcftt appcar rcaaeRa~le, here~y eertifies as fellevsl
The \::lnscroi,Red Aascaoar, BeiR, le9ally respeftsiele far the
aaaeoamcnt af the aBove dcoeri~ed preperty, hereBY eer~ifies that the
lIinim\im mar)cet valuco aooi,ncd te such laRd aftd faeility te ee
operated thcrcaR, as af Januar). 1 ef the years 1991 threQ,h 2999,
inolusive (and ceRtiRuinq until aueh time as the Assessmcftt A9recmcRt
ahall by ita tcrllo terminate), shall ~e Rot less thaft $999,099.
Aosesser for Scott COURty,
KiRReseta
Dated:
, 1990.
DeillO
UIII..
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