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HomeMy WebLinkAbout2013-087 Council Resolution• CITY OF LINO LAKES RESOLUTION NO. 13 -87 RESOLUTION APPROVING CONSENT AND JOINDER OF CITY OF LINO LAKE TO ASSIGNMENT OF DEVELOPMENT CONTRACT - PRESERVE AT LINO LAKES WHEREAS, the City Council approved the Development Contract for Preserve at Lino Lakes on May 28, 2013, and WHEREAS, the Developer is Schwieters Investments of Lino Lakes, LLC and the Lender is Platinum Bank, and WHEREAS, the Lender requires an Assignment of Development Contract and Consent and Joinder of Development Contract. NOW, THEREFORE BE IT RESOLVED by The City Council of The City of Lino Lakes hereby approves the Consent and Joinder of City of Lino Lakes to Assignment of Development contract - Preserve at Lino Lakes and authorizes the Mayor and City Clerk to execute such agreement on behalf of the City. Adopted by the Council of the City of Lino Lakes this 22 day of July , 2013. The motion for the adoption of the foregoing resolution was introduced by Council Member Rafferty and was duly seconded by Council Member Stoesz and upon vote being taken thereon, the following voted in favor thereof: Rafferty, Stoesz, Roeser, O'Donnell, Reinert The following voted against same: none ATTEST: Juh= e Bartell, Ci Cler • Jeff Reine , Mayor • • • CONSENT AND JOINDER OF CITY OF LINO LAKES TO ASSIGNMENT OF DEVELOPMENT CONTRACT - PRESERVE AT LINO LAKES By execution of this Agreement, the City of Lino Lakes consents and joins in the Assignment of the Development Contract to Platinum Bank pursuant to the terms and conditions therein. CITY OF LINO LAKES Dated: By: Its: Mayor By: Its: City Clerk • • ASSIGNMENT OF DEVELPMENT CONTRACT THIS ASSIGNMENT OF DEVELOPMENT CONTRACT is made and entered into as of the 27th day of June, 2013, by and among SCHWIETERS INVESTMENTS OF LINO LAKES, LLC, a Minnesota limited liability company ( "Borrower "), and PLATINUM BANK, a Minnesota banking corporation ( "Lender ")(Borrower and Lender collectively referred to as the "Parties "). RECITALS A. Lender and Borrower have entered into a Loan Agreement dated June 27, 2013 ( "Loan Agreement "), pursuant to which Lender has agreed to make a loan to Borrower to finance a Letter of Credit required by the City of Lino Lakes, Minnesota ( "City ") associated with a certain development located within and approved by the City ( "Development "). B. Borrower and the City have entered into a Development Contract dated May of 2013 ( "Development Contract "), pursuant to which Borrower has agreed to undertake certain public and private improvements as required by the City ( "Improvements "). A true, correct and complete copy of the Development Contract is attached as Exhibit A and is incorporated as part of this Assignment. C. The Letter of Credit is required by the City to secure the completion of the Improvements. D. As a condition of extending the financing evidenced by the Loan Agreement and certain associated Loan Documents, the Development Contract shall be assigned to Lender and Lender shall not approve the financing as evidenced by the Loan Documents unless this Assignment is executed. E. Borrower desires to execute this Assignment in accordance with the terms and provisions hereof, in order to induce Lender approve the financing outlined herein. NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Borrower and Lender, the Parties hereby agree as follows: ASSIGNMENT 1. Borrower hereby assigns its rights and interests in, under and pursuant to the Development Contract to Lender, upon an Event of Default, as defined in the Loan Agreement or the Loan Agreements. If an Event of Default does not occur, and the Improvements are completed in accordance with the Development Contract, and the Letter of Credit is not drawn upon by the City, this Assignment shall terminate. Page 1 of 2 • • • 2. If such an Event of Default does occur, Lender may, at its sole option and in its sole discretion, assume Borrower's position as a party to the Development Contract. If Lender exercises this assignment to assume Borrower's position as a party to the Development Contract, Lender shall have all of the rights of Borrower under the Development Contract, and may complete the Improvements in the manner and by the date provided in the Development Contract, as if Lender were originally a party thereto. 3. Borrower shall not cause the Development Contract to be modified or amended, and Borrower shall not waive any of its rights under the Development Contract, without the prior written consent of Lender. 4. In the event Lender does not assume Borrower's position under the Development Contract, all obligations required thereunder shall remain the sole obligation of Borrower. 5. In addition, Borrower hereby grants to Lender a security interest in Borrower's rights, title and interests in, to and under the Development Contract, if and to the extent that a security interest may be granted therein under the Uniform Commercial Code as in effect in the state where the premises are located (the "Code "), and Borrower acknowledges that Lender shall have all of the rights and remedies with respect thereto provided for by the Code, in addition to the other rights and remedies herein granted to Lender, in the event of the occurrence of an Event of Default under the Loan Agreement or the Loan Documents. 6. Subject to the provisions hereof, this Assignment shall be binding upon Borrower and its respective successors and assigns, and shall inure to the benefit of Lender, its successors and assigns. Lender may assign its rights under this Assignment without the consent of Borrower, but Borrower may not assign its obligations under the Development Contract or under this Assignment without the prior written consent of Lender. 7. Any notice or other communication to any party in connection with this Assignment shall be in writing and shall be sent by manual delivery, telegram, telex, facsimile transmission, overnight courier or United States mail (postage prepaid) addressed to such party at the address specified below, or at such other address as any party shall have specified to the other parties hereto in writing. All periods of notice shall be measured from the date of delivery thereof if manually delivered, from the date of sending thereof if sent by facsimile transmission, from the first Business Day after the date of sending if sent by overnight courier, or from three days after the date of mailing if mailed: If to Borrower: If to Lender: Schwieters Investments of Lino Lakes, LLC 13926 Fenway Boulevard North Hugo, Minnesota 55038 Platinum Bank 7667 10th Street North Oakdale, Minnesota 55128 Page 2 of 2 • IN WITNESS WHEREOF, the Parties have executed this Assignment as of the date first above written. • • BORROWER: SCHWIETERS INVESTMENTS OF LINO LAKES, LLC, a Minnesota limited liability company. By: John H. Schwie7Trs- Its: Chief Manager LENDER: PLATINUM BANK, a Minnesota banking corporation. Bv: Page 3 of 3 m Jacobson ief Execu