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Home My WebLink About05-09-1994 EDA WSC��l OC� OM�1D� ��UV "Quite Simply the Best" Phone: (612) 784-3055 Fax: (612) 784-3462 E�� o� D��«�� ,N�� A�►1�� <<>>L�� President Jerry Linl<e Vice President Phyllis Blanchard Secretarv Diane Wuori Board Members Julie Trude Gary Quicl< Executive Directorl Assistant Treasurer Samantha Orduno Treasurer Don Brager Economic Dev. Coordinator Cathy Bennett Clerk Michele Severson 1 r EDA WORK SESSION 6:00 P.M. AGENDA Discussion Regarding Draft Development Agreements with : A) C. G. Hill B) Multi-Tech C) Westminster Discussion Regarding Agreement on Future TIF Assistance for Business Park PRINTED WITH � SOYINK, 2401 Highway 10 • Mounds View, MN 551 1 2-1 499 �� ecY�ea vaper ii . _ : __ __ __ _»_ � MOUNDS VIEW ECONOMIC DEVELOPMENT AUTHORITY REQUEST FOR EDA CONSIDERATION STAFF REPORT EDA M��TING DATE May 9, 1994 (Work Session) EDA Actiou: ❑ Special Order of Business Agenda Section: 1• ❑ Public Hearings Report Number: ❑ Conseut Ageiida Report Dalc;: 5-5-94 ❑ LDA Busincss Item Dcscription: Discussion Regarding Draft Development Agreements with C.G. Hill, Multi—Tech, and Westminster Gxecutive Director's Review/Recommenda[ion: - No comments to supplement tliis rcport - Comiucnts attachecl LXP�HI18tt011��l11]]Il18fj� (attaCh supplcmnnt sheets cu nca;ssary) S UMNIARY: Attached please find the followingo 1. Letter from Jim 0'Meara outlining the specifics of the draft Development Agreements with C.G. Hill and Multi-Teche 2. Draft Development Agreement with C.G. Hill 3. Draft Development Agreement with Multi-Tech The draft Development Agreement with Westminster is not complete as of the agenda packet deadline. The Agreement will be completed prior to the 6:00 p.m. EDA meeting on Monday, May 9th. The meeting on Monday is an EDA Work Session. The purpose of the meeting is to discuss the details of the three draft Agreements. A second work session has been scheduled for Monday, May 23rd at 6:00 p.me to review the final Agreements. The formal EDA meeting to consider approval of the Agreements will occur on May 23, 1994, after the regular Council Meeting. Saman R�COi�iNIENDATION: / , ,; �� ` � ;,i1:�, ;._.� (_/ :'( ti��(' P ,-i � .l Ordu o, Executive Director LAW OFFICES BPIGGS AND MOI�GAN PI30EN:S'SIONAL ASSOCIATION 2200 P'IAST NATIONAL BAN$ BUZLDING SALNT PAUL, MZNNESOTA 5.�101 TE7.EPHONF. (0121 223 - 6000 FACSIMILE (Al2) 223-6450 WEITEII'S DIEECT DiAL NUMBER (612) 223-6420 VIA REGULAR MAIL Samantha Orduno City Administrator City of Mounds View Mounds View City Hall 2401 Highway No. 10 Mounds View, Minnesota 55112 Don Brager City Finance Director Mounds View City Hall 2401 Highway No. 10 Mounds View, Minnesota 55112 May 3, 1994 VIA ME5SENGER MINNEAPOLIS OFFICE 2A90 IDS CL+NTEB DIINVE4POLI5� DIINNESOTA 65402 TELP•.PHONE 1012) 384-8400 FACSIDSII.E (812) 334-8Qu0 Jim Casserly Casserly Molzahn & Associates, Inc. 215 South 11th Street Suite 300 Minneapolis, Minnesota 55403 Re: First Drafts of Proposed Development Assistance Agreements between the Mounds View EDA and Everest Development for Multi-Tech and C.G. Hill Projects, Respectively Dear Samantha, Don, and Jim: Please find enclosed these first drafts, marked 5/3/94 in the upper right hand corner of the cover page. Although these have been discussed in very general terms, the City has not reviewed or commented upon the enclosed drafts. The two agreements are identical in structure. For example, the Multi-Tech agreement provides for payment of up to $707,626 of Everest's site acquisition, carrying and improvement costs, together with interest at 7% commencing upon completion. This would be a"pay as you go" tarc increment arrangement, evidenced by a taxable EDA revenue note, which would be payable only out of the ten years' of increment, payable 1996 through payable 2005, and only from 85% of the tax increment generated by the "Improvements," being the 30,000 square foot Multi-Tech expansion. The EDA would have the right to prepay the Note if it ever chose to do so. The payment obligations of the EDA on the Note would also be subordinate to the pledge of tax increments to the "Bonds" (including any future refunding bonds) issued by the City to fund various development costs within the Business Park. BI�IGGS nivn MOAGAN Samantha Orduno Don Brager Jim Casserly May 3, 1994 Page 2 Prior review and approval of the "Construction Plans" (which include the "Design Plans") would also be required, over and above nornaal planning, zoning and building permit requirements. There is also a requirement that the Improvements be owned by Multi-Tech for its occupancy. The C.G. Hill agreement differs in that the principal of the assistance is lower, $196,000, and the term of the tax increment would be six years instead of ten years, applying only for the payable 1996 through payable 2001 tax years. In the coming days I will circulate a proposed general agreement that outlines some basic, non-binding understandings for the build-out of the remainder of the Business Park, including tax increment understandings and conditions. I would ask Jim Casserly to provide the signed or to be signed agreements which Everest has with Multi-Tech and C.G. Hill, respectively. We will also need information on the descriptions of the "Development Property" and, in the case of Multi-Tech, whether the new addition will be built on a combination of newly acquired and existing Multi-Tech property. I think we have all been in general agreement that before these particular agreements are executed or approved we need to come to satisfactory resolution of the park dedication issues, the remaining build-out issues, and any other outstanding matters. We look cooperatively to those ends. o rs very , f � James P. O'Meara JO:cmg Enclosure _ .. � _ : . :. .- . . � . .- � . ""'_"'_ �.- � � . . � _"� "' ., . ... � .. . ' __ _ � " '�.' ' _'..`�.." -_." � ""'_ "" "_ . _.�. ,-T . .._:. . .. _ . � 1 5/3/94 Draft DEVELOPMENT ASSISTANCE AGREEMENT By and Between THE MOUNDS VIEW ECONOMIC DEVELOPMENT AUTHORITY And EVEREST DEVELOPMENT, LTD. [MULTI-TECH EXPANSION] This document drafted by: Briggs and Morgan 2200 First National Bank Building 332 Minnesota Street Saint Paul, Minnesota 55101 Telephone: (612) 223-6600 Facsimile: (612) 226-6450 262545.1 TABLE OF CONTENTS (This Table of Contents is not part of the Development Assistance Agreement and is only for convenience of reference.) PaQe PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1 ARTICLE I - DEFINITIONS . . . . . . . . . . . . . . . . . . . 1-1 Section 1. 1. Def initions . . . . . . . . . . . . . . . 1-1 ARTICLE II - REPRESENTATIONS, COVENANTS AND WARRANTIES ... 2-1 Section 2.1. Representations and Warranties by the Authority . . . . . . . . . . . . . . . . 2-1 Section 2.2. Representations, Covenants and Warranties by the Developer . . e . . . . . . . . . 2-2 ARTICLE III - THE IMPROVEMENTS . . . . . . . . . . . . . . . 3-1 Section 3.1. Undertakings of the Developer ...... 3-1 Section 3.2. Undertakings of the Authority ...... 3-1 Section 3.3e Construction Plans . . . . . . . . . . 3-3 Section 3.4e Certificate of Completion . . . . . . . . 3-4 ARTICLE IV - PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER; INDEMNIFICATION . . . . . . . . . . . . . . e . 4-1 Section 4.1. Prohibition Against Transfer of Property and Assignment of Agreement . . . . . . . 4-1 Section 4.2. Release and Indemnification Covenants .. 4-2 ARTICLE V - EVENTS OF DEFAULT . . . . . . . . . . . . . . . . 5-1 Section 5.1. Events of Default Defined ........ 5-1 Section 5.2. Remedies on Default . . . . . . . . . . . 5-1 Section 5.3. No Remedy Exclusive . . . . . . . . . . 5-1 Section 5.4. No Additional Waiver Implied by One Waiver . . . . . . . . . e . . . . . . . 5-2 ARTICLE VI - ADDITIONAL PROVISIONS . . . . . . . . . . . . . 6-1 Section 6.1. Titles of Articles and Sections ..... 6-1 Section 6.2. Notices and Demands . . . . . . . . . . . 6-1 Section 6.3. Counterparts . . . . . . . . . . . . . . 6-1 Section 6.4. Law Governing . . . . . . . . . . . . . . 6-1 Section 6.5. Time of the Essence . . . . . . . . . . 6-1 Section 6.6. No Third-Party Beneficiaries ...... 6-1 ARTICLE VII - TERMINATION OF AGREEMENT; EXPIRATION ..... 7-1 Section 7.1. Termination . . . . . . . . . . . . 7-1 Section 702. Sections to Survive Termination ,.... 7-1 262545.1 1 SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . . 7-1 EXHIBIT A - Development Property . . . . . . . . . . . . . . A-1 EXHIBIT B - Form of EDA Note . . a . . . . . . . . . . . B-1 EXHIBIT C - Certificate of Completion . . . . . . . . . . . . C-1 262545.1 1 1 ..� �; �= DEVELOPMENT ASSISTANCE AGREEMENT THIS AGREEMENT is dated as of , 1994; is by and between the Mounds View Economic Development Authority and Everest Development, Ltd., a Minnesota corporation; and provides as follows: ARTICLE I DEFINITIONS Section 1.1. Definitionso In this Agreement, unless a different meaning clearly appears from the context: "Agreement" means this Development Assistance Agreement by and between the Authority and the Developer, as the same may be from time to time modified, amended or supplemented. "Authoritv" means the Mounds View Economic Development Authority. "Board" means the Board of Commissioners of the Authority, its governing body. "Bonds" means (1) the City's $6,000,000 Taxable General Obligation Tax Increment Bonds, Series 1988A, dated February 1, 1988, (2) the City's $930,000 General Obligation Tax Increment Bonds, Series 1989B, dated November 1, 1989, (3) the City's $1,490,000 Taxable General Obligation Tax Increment Bonds, Series 1989C, dated November 1, 1989, (4) and any bonds or similar obligations issued by the City or the Authority to refund any of the Bonds (including without limitation the City's $4,945,000 Taxable General Obligation Tax Increment Refunding Bonds, Series 1994B, dated May 1, 1994, and issued to "crossover refund" the above-mentioned Series 1988A Bonds as of February 1, 1996). "Certificate of Completion" means the certificate substantially in the form of the attached Exhibit C, to be executed by the Authority upon the conditions provided in Section 3.4 hereof upon completion of the Improvements. "Citv" means the City of Mounds View, Minnesota. "Construction Plans" means the plans, specifications, drawings and related documents on all construction work to be performed by or on behalf of the Developer on the Development Property, including the Improvements and all other on-site improvements to be performed, installed or constructed upon the Development Property 262545 .1 1' 1 zr_-. - , : _; : :_:: __ , � : pursuant to this Agreement. Such plans shall at a minimum include, where applicable, the following: (i) site plan; (ii) foundation plan; (iii) basement plans; (iv) floor plan for each floor; (v) cross sections of each (length and width); (vi) elevations (all sides); (vii) the Design Plans; and (viii) adequate plans, drawings and specifications relating to all driveways, walks, parking and other improvements to be constructed upon the Development Property by the Developer. "Design Plans" means plans which show in adequate detail the design, architectural style, facia, signing, lighting, landscaping, parking and interior traffic components of the Improvements, or applicable portions thereof. "Developer" means Everest Development, Ltd., a Minnesota corporation, or its successors or assigns under this Agreement. "Development Costs" means unreimbursed costs incurred and paid by the Developer in acquiring, carrying, and improving the Development Property. "Development District" means the Authority's Development District No. 2, as amended. (Note: As of May 9, 1994, the Development District has been incorporated into the Authority's Mounds View Economic Development Project.) "Development Proqram" means the Authority's Development Program for the Development District, as amended. (Note: As of May 9, 1994, the Development Program has been incorporated into the Project Plan of its Mounds View Economic Development Project.) "Development Property" means the real property described in Exhibit A of this Agreement. "EDA Note" means the obligation substantially in the form of the attached Exhibit B which is described in 5ection 3.2. "Event of Default" means any Event of Default described in Section 5.1 of this Agreement. "Improvements" means the approximately 30,000 square foot expansion of Multi-Tech's existing manufacturing/warehouse/office facilities located within the Tax Increment Finance District, and all other improvements, including walks, landscaping, utility improvements and relocations, and fixtures and equipment, to be constructed or installed upon the Development Property in connection with and in order to facilitate the above described improvements. Z62545 .1 1- 2 , _ _ ,, _.. _ , � �_ �, . � _ � . . - � � � i � d "Multi-Tech" means Multi-Tech Systems, Inc., a Minnesota corporation. "Part " means either the Developer or the Authority, as the context may require. "Parties" means the Developer and the Authority. "State" means the State of Minnesota. "Tax Increment Act" means Minnesota Statutes, Sections 469.174 through 469.179, as the same may be amended or supplemented. "Tax Increments" means those tax increments which the Authority shall be entitled to receive and retain, and which the Authority shall have actually received, from Ramsey County from time to time from the Tax Increment Financing District pursuant to the Tax Increment Act; and "Available Tax Increments" means, as further defined in Section 3.2, the portion of the Tax Increments which shall be available to pay the Authority's obligations under the EDA Note. "Tax Increment Financinq District" means the Authority's Tax Increment Financing District No. 1(which has also been sometimes referred to as Tax Increment Redevelopment District No. 1) within the Development District, as now under the governance and control of the Authority, as described in Section 2.1(c). "Unavoidable Delavs" 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, unavailability of materials, Acts of God, fire or other casualty to the Improvements, litigation (including without limitation bankruptcy proceedings) and which directly results in delays; or acts of any federal, state or local governmental unit which directly result in delays. 262545 .1 1- 3 ' _ r. �..___.. _'.._,1 .. . _ . . ' � . ..�.. _ "'�_' ; _ - " '_ _ 4.:.7.--�.- �r '.�.r- -_ L , . s . .�. _ . . . .. � .: ._ ._ _ . _ . . _... .... • b_.' _ . __._ .. ARTICLE II REP1aE�ENTATIONS, COVENANTS AND WARRANTIES Sectian 2.1. Representations and Warranties by the Authoritv. The Authority represents and warrants that: (a) The Authority is a municipal corporation and political subdivision of the State organized and existing under the laws of the State. (b) The Authority has the authority to enter into this Agreement and carry out its obligations hereunder, subject to the same enforceability exceptions provided in Section 2.2(a) with respect to the Developer. (c) The Authority represents that the City established the Development District and adopted its Development Program pursuant to the Minnesota Municipal Development District Act, previously found in Minnesota Statutes, Chapter 472A, and now codified in Minnesota Statutes, Sections 469.124 through 469.134, and that the City established the Tax Increment Financing District within the Development District pursuant to the Tax Increment Act. The Authority also represents that pursuant to Minnesota Statutes, Section 469.093, on March 28, 1994, the City Council adopted an enabling resolution and thereby established the Authority. Pursuant to Minnesota Statutes, Section 469.094, Subdivision 2, the City transferred to the Authority, and the Authority accepted from the City transfer of, the control, authority, and operation of the Development District, including the Tax Increment Financing District therein, thereby empowering the Authority to exercise all of the powers that the City could exercise with respect to the Development District, subject to the covenant and pledge by the Authority to perform the terms, conditions, and covenants of all bond indentures and other agreements executed for the security of any bonds issued and any other activities undertaken with respect to the Development District. (d) The Authority makes no representation, guarantee, or warranty, either express or implied, and hereby assumes no responsibility or liability as to the Development Property or its condition (whether regarding soils, pollutants, hazardous wastes or materials or otherwise) or that the Development Property will be suitable for the purposes or needs of the Developer or Multi-Tech. 262545.1 2 � 1 � �.: . .._;�;__ .- � � � : _ ,r a__ , � _ : . . : . _ .. Section 2.2. Representations Covenants and Warranties bv the Developer. The Developer represents, covenants, and warrants that: (a) The Developer is a corporation duly organized, existing, and in good standing under the laws of the State of Minnesota. The Developer has full power and authority to enter into this Agreement and to perform its obligations hereunder and has taken or caused to be taken all actions necessary to make the Agreement, when executed and delivered by the Parties, the valid and binding agreement and obligation of the Developer, enforceable in accordance with its terms, except to the extent such enforceability may be limited by equitable principles and by laws affecting remedies and by bankruptcy, moratorium and insolvency laws and laws affecting creditors' rights, heretofore or hereafter enacted. (b) The Improvements shall be completed by the Developer in accordance with the terms of this Agreement and all applicable local, State and federal laws and regulations (including, but not limited to, environmental, zoning, building code and public health laws and regulations). (c) The Developer has received no notice or communication from any local, state or federal official to the effect (and, to the best of the Developer's knowledge, there is no other basis upon which to believe) that the execution of this Agreement or the performance by the Developer under this Agreement is, may be or will be in violation of any local, state or federal law or regulatione (d) The Developer agrees and covenants that it will use its best efforts to obtain or cause to be obtained, in a timely manner, all required permits, authorizations, licenses and approvals, including environmental and zoning approvals for the Development Property and the Improvements, and that the Developer will meet and abide by, in a timely manner, all requirements and conditions of all such permits, authorizations, licenses, and approvals and of all applicable local, state, and federal laws and regulations which must be obtained or met before the Improvements may be lawfully undertaken, completed and operated. (e) Neither the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby nor the fulfillment of or compliance with the terms and condi- tions of this Agreement is prevented or limited by or in conflict with or will result in a breach of the terms, conditions or provisions of the Developer's Articles of Incorporation or By-Laws or of any evidences of indebtedness, 262545.1 2 - 2 __.. . . . . .. _ .__� . IM _�_ ."':..Y.� .�.� G ... .�� __' _ _. ...�".."_ . _:�'X=>�. . a. .�.... ..__, _..-. _ � C agreement, or instrument of whatever nature to which the Developer is now a party or by which it or its property is bound or will constitute a default under any of the foregoinge (f) The Developer represents that it would not be able to undertake the Improvements in the reasonably foreseeable future without the assistance to be provided by the Authority under this Agreement. (g) The Developer covenants that the Improvements will be constructed on the Development Property, a portion of which Multi-Tech currently owns and the remainder of which (consisting of approximately 217,800 square feet of land area) Multi-Tech is purchasing from the Developer pursuant to an executed agreement. The Developer represents that it will construct the Improvements pursuant to an executed agreement with Multi-Tech, but Multi-Tech will own all of the Development Property and will occupy the Improvements. 262545 .1 2 - 3 ,� � � ARTICLE III THE IMPROVEMENTS Section 3.1. Undertakincts of the Developer. Subject to Unavoidable Delays, the Developer shall have completed the Improvements by December 31, 1994. Section 3.2. Undertakings of the Authoritv. The Developer hereby represents to the Authority that the Developer has incurred and paid or will incur and pay Development Costs which in the aggregate exceed $707,626. The Authority hereby agrees to defray $707,626 of the Development Costs by issuing the EDA Note to the Developer (or to such other person or entity as the Developer shall have theretofore designated in writing to the Authority as the initial registered owner of the EDA Note), as registered owner thereof, substantially in the form of Exhibit B 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 a condition to such reimbursement of Development Costs pursuant to the EDA Note, the Authority shall have executed the Certificate of Completion, and there shall have been satisfied all of the conditions precedent thereto provided in Section 3.4. (c) Subject to the provisions of the EDA Note, the principal of and interest on the EDA Note shall in the aggregate be payable on each February 1 and August 1, commencing August 1, 1996, and continuing through February 1, 2006 (the "Payment Dates"), in the respective amount or amaunts described in this subsection. The sole source of funds available for payment of the Authority's obligations under this Section and correspondingly under the EDA Note shall be the Available Tax Increments, hereby defined to be for each applicable property tax year 85� of the Tax Increments derived from the Improvements. The amounts otherwise payable on the EDA Note on each Payment Date shall be limited to the Available Tax Increments received by the Authority within the preceding 6 months. Al1 payments made on the EDA Note shall be applied first to pay accrued and unpaid interest on the EDA Note and second toward payment of principal. All amounts of Tax Increments which are not Available Tax Increments are not subject to this Agreement, 262545.1 3 -1 � I 262545.1 _- : � _ _ _, �� and the Authority retains full discretion as to any authorized application thereof, regardless of whether the Available Tax Increments are sufficient to reimburse the Developer in full for the above-described costs. To the extent that the Available Tax Increments are insufficient, through the final Payment Date (February 1, 2006), to pay all accrued and unpaid interest on and the principal of the EDA Note, said unpaid amounts shall then cease to be any debt or obligation of the Authority whatsoever. (d) The unpaid principal of the EDA Note shall bear simple, non-compounded interest at 7.00� per annum from the date of execution of the Certificate of Completion. Interest shall be computed on the basis of a 360-day year consisting of 12 months of 30 days eache (e) The EDA shall not endeavor to issue the EDA Note so that the interest thereon shall be exempt from federal or State income taxation, and the Parties accordingly anticipate that the EDA Note will be a"taxable" obligation. (f) The EDA Note shall be a special and limited revenue obligation of the Authority and not a general obligation of the Authority, and only Available Tax Increments shall be used to pay the principal of and interest on the EDA Note. The EDA Note shall not be any obligation whatsoever of the City. (g) The Authority'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 satisfaction of the Authority, such unpaid obligations shall thereupon be reinstated and thereby become due and payable. (h) The EDA Note shall be governed by and payable pursuant to the additional terms thereof, as set forth in Exhibit B. In the event of any conflict between the terms of the EDA Note and the terms of this Section 3.2, the terms of the EDA Note shall govern. (i) Following any termination of this Agreement by the EDA pursuant to Section 5.2 hereof, no further or unpaid amounts of the EDA Note shall then or thereafter be due and payable by the Authority under this Section or the EDA Note but shall thereupon be extinguished. (j) The pledge of the Available Tax Increments made in this Section 3.2 and in the EDA Note to payment of the EDA Note shall in all respects be junior and subordinate to the 3-2 pledge of and need for the Tax Increments to provide timely payment of the debt service on the Bonds; provided, however, that the Authority does covenant to the Developer to apply all other Tax Increments (that is, all Tax Increments other than the Available Tax Increments) to such purposes and to resort to Available Tax Increments only in the event that said other increments are insufficient for such debt service purposes. Section 3.3. Construction Plans. (a) The Authority shall have no obligation to the Developer to take any action pursuant to any provision of this Agreement until such time as the Developer has submitted Construction Plans to the Authority, and the Authority has approved such Construction Plans. The Authority 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 3.3 shall constitute approval for the purposes of this Agreement only and shall not be deemed to constitute approval or waiver by the Authority with respect to any building, zoning or other ordinances or regulation, and shal l not be deemed to be suf f icient 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 Authority within 10 working days of submission or shall be deemed to have been approved by the Authority. Any rejection of the Construction Plans shall state in writing the Authority's reasons therefor. If the Authority rejects the Construction Plans in whole or in part, the Developer may submit new or corrected Construction Plans within 30 days after receipt by the Developer of written notification of the rejection, accompanied by a written statement of the Authority specifying the respects in which the Construction Plans submitted by the Developer fail to conform to the requirements of this Section 3.3. The provisions of this Section 3.3 relating to approval, rejection and resubmission of the Construction Plans shall continue to apply until the Construction Plans have been fully approved by the Authority. Approval of the Construction Plans by the Authority shall not relieve the Developer of any obligation to comply with the provisions of this Agreement or the provisions of applicable federal, state and local laws, ordinances and regulations, and approval of the Construction Plans by the Authority shall not be deemed to constitute a waiver of any Event of Default. (b) If the Developer desires to make any material change in the Construction Plans after their approval by the 262545 .1 3 - 3 _ . _ . . ' . . ' .; -�� _..�� . —_ > �� — .� i��.t: — -�. r..�_ . c . : . .— —_' � � °�- .. ` _. . . . _ :.�,_ _ . .. ..... _ . . _ . _ .. _ . .: –� � ------. . _ . �,.._. .. – �- - � �---_ .-.._.-- � --- � --- . _ : _ _. . -`- � k l Authority, the Developer shall submit the proposed change to the Authority for its approval or rejection pursuant to this Section. A proposed change in the Construction Plans shall be deemed approved unless rejected by the Authority in writing within 10 working days of submission thereof with a statement of the Authority's reasons for such rejection. Section 3.4. Certificate of Completion. (a) Promptly after completion of the Improvements in accordance with the provisions of this Agreement, and upon written request made to the Authority, the Authority will execute the Certificate of Completion in the form attached hereto as Exhibit C, which shall then be a conclusive determination of satisfaction and termination of the agreements and covenants in this Agreement with respect to the completion of the Improvements. The following shall be conditions precedent to the Authority's obligation to execute the Certificate of Completion: (i) There shall exist no Event of Default hereunder, and the Improvements shall have been completed in substantial conformity to the terms of this Agreement; (ii) The City shall have issued a Certificate of Occupancy for the Improvements; and (iii) Multi-Tech shall have accepted and occupied the Improvements or indicated in writing its acceptance of the Improvements and its intention to occupy them. (b) If the Authority determines that it cannot execute the Certificate of Completion, it shall, within 20 days after written request therefor, provide a written statement indicating in adequate detail why it cannot do so and also indicating what measures or acts it will be necessary to be taken or performed in order to permit execution of the Certificate of Completion. 262545.1 3-4 . �: ,.�. �. . � ,�-�- _ � L ARTICLE IV PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER; INDEMNIFICATION Section 4.1. Prohibition Against Transfer of Property and Assignment of Agreement. The Developer represents and agrees that prior to the execution of the Certificate of Completion: (a) Except only by way of security for the purpose of obtaining financing necessary to enable the Developer or any successor in interest to the Development Property, or any part thereof, to perform its obligations with respect to the Improvements under this Agreement, and any other purpose authorized by this Agreement, the Developer 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, 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, except for the sale of the applicable portion of the Development Property from the Developer to Multi-Tech, without the prior written approval given by the Authority in its sole discretion. (b) The Authority as otherwise provided in such approval that: shall be entitled to require, except the Agreement, as conditions to any (i) Any proposed transferee shall have the qualifications and financial responsibility, in the reasonable judgment of the Authority, necessary and adequate to fulfill the obligations undertaken in this Agreement by the Developer. (ii) Any proposed transferee, by instrument in writing satisfactory to the Authority, shall, for itself and its successors and assigns, and expressly for the benefit of the Authority, have expressly assumed all of the obligations of the Developer under this Agreement and agreed to be subject to all the conditions and restrictions to which the Developer is subject unless the Developer agrees to continue to fulfill those obligations. 262545 .1 4 -1 �:��. �'. ��_ �� - ,,,.t��..�__: r=-� � �� . �x �.:_, r-., �: --- � ----.-"- "�: �- --' � i.r� >_;_�.-s--; � � i� Y f � r.,--'__ - . (iii) There shall be submitted to the Authority for review and prior written approval all instruments and other documents involved in effecting the transfer of any interest in this Agreement or the Development Property. Section 4.2. Release and Indemnification Covenants. (a) The Developer releases from and covenants and agrees that the Authority 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 Improvements, except that the foregoing indemnity shall not apply to any liability arising pursuant to an act or omission of any of the Indemnified Parties. (b) Except for any willful misrepresentation or any willful or wanton misconduct of the Indemnified Parties, the Developer 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 Improvements, provided, that this indemnification shall not apply to the warranties made or obligations undertaken by the Authority in this Agreement. (c) Al1 covenants, stipulations, promises, agreements and obligations of the Authority contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Authority and not of any governing body member, officer, agent, servant or employee of the Authority. (d) This Agreement shall not create and shall not be construed to create any partnership, joint venture, agency or employment relationship between the Parties. 262545 .1 4 � 2 ARTICLE V EVENTS OF DEFAULT Section 5.1. Events of Default Defined. The following are Events of Default under this Agreement: (a) Failure of timely payment of any real property taxes, special assessments, and similar impositions assessed against or with respect to the Development Property, subject to lawful rights to cantest the same. (b) Failure in the substantial observance or performance of any covenant, condition, obligation, or agreement on the part of the Developer to be observed or performed under this Agreement. 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 5.2. Remedies on Default. Whenever any Event of Default occurs, in addition to all other remedies available to the Authority at law or in equity or elsewhere in this Agreement, (1) the Authority may suspend its performance under the Agreement until it receives assurances from the Developer, deemed adequate by the Authority, that the Developer has cured its default and will continue its performance under the Agreement and (2), after provision of 30 days written notice from the Authority to the Developer of the Event of Default, 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 Developer does not provide assurances to the Authority reasonably satisfactory to the Authority that the Event of Default will be promptly cured, then the Authority may terminate this Agreement. Section 5.3. No Remedv Exclusive. No remedy herein conferred upon or reserved to the Authority 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. 262545 .1 5 -1 _., � � . __ _ _ _ __q , :� .. . -_'=-� �-- -=-- �° - - -- -�--- - ---- .- - _.- - ---- ° - -- - - ----- _ .� I � I Section 5.4. No Additional Waiver Implied 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. 262545 .1 5 - 2 _ __ _ . _ : _. _ _ � :_: __;__ �___ __ _ ARTICLE VI Additional Provisions Section 6.1. 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 6.2. 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 regular mail, postage prepaid, or delivered personally or telecopied, (a) in the case of the Developer, to Everest Development, Ltd., 2685 Long Lake Road, Roseville, Minnesota 55113, Attention: President; and (b) in the case of the Authority, to the Mounds View Economic Development Authority at the Mounds View City Hall, 2401 Highway 10, Mounds View, Minnesota 55112, Attention: Mounds View EDA Executive Director. 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 Party as provided in this Section. Section 6.3. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original hereof and all of which shall constitute one and the same instrument. Section 6.4. Law Governinct. The parties agree that this Agreement shall be governed and construed in accordance with the laws of the State of Minnesota. Section 6.5. Time of the Essence. Time shall be of the essence in this Agreement. Section 6.6. No Third-Partv Beneficiaries. There shall, as against the Authority, be no third-party beneficiaries to this Agreement. More specifically, the Authority enters into this Agreement, and intends that the consummation of the Authority obligations contemplated hereby shall be, for the sole and exclusive benefit of the Developer, and notwithstanding the fact that any other "persons" may ultimately participate in or have an interest in the Project, or any portion thereof, the Authority does not intend that any party other than the Developer shall have, as alleged third party beneficiary or otherwise, any rights or 262545 .1 6 -1 1=. v - _ _ � _�� _ _ � � _ -��._ ._ . �- � -�. . __ __ __ __ _ - � interests hereunder as against the Authority, and no such other party shall have standing to complain of the Authority's exercise of, or alleged failure to exercise, its rights and obligations, or of the Authority's performance or alleged lack thereof, under this Agreement. 262545 .1 6 - 2 _ _ . .. -� - . � . , _: _ _ . _�-{- . � _ :� . --- - -- -- - - - . ��,,�. .� ,-� ----- - -- _. _ � ._. ._- - �; F' �'. F� I.. ARTICLE VII TERMINATION OF AGREEMENT; EXPIRATION Section 7.1. Terminationo The Authority may terminate this Agreement as provided herein, and otherwise this Agreement shall terminate upon payment of the EDA Note in accordance with its terms and the discharge of all of the Parties' other respective obligations hereunder, but no such termination shall terminate any indemnification or other rights or remedies arising hereunder due to any Event of Default which occurred prior to such termination. Section 7.2. Sections to Survive Termination. Section 4.2 shall, in addition to the other surviving provisions referenced in Section 7.1, survive the termination of this Agreement. IN WITNESS WHEREOF, the Authority has caused this Agreement to be duly executed in its name and behalf by its duly authorized representatives, and the Developer has caused this Agreement to be duly executed in its name and behalf by its duly authorized representatives on or as of the date first above written. MOUNDS VIEW ECONOMIC DEVELOPMENT AUTHORITY By President By Executive Director EVEREST DEVELOPMENT, LTD. By Its President By Its Chairman of the Board [Execution page of Development Assistance Agreement with the Mounds View Economic Development Authority.J 262545 .1 7 -1 'I :i , _,_. - , . -- �:-- -----_ : -_ ' __:_ _______ � � � - ,__. :� _.: �_�. - � ___ _ _ _ _ _ ___ ___ ___ __ � � .�___ __ _ _ ___ __ _ . _ � EXHIBIT A DEVELOPMENT PROPERTY The Development Property consists of the following described properties, all located in the City of Mounds View, Ramsey County, Minnesota: 262545.1 A-1 r : � . _ _ _ _ , _ - ____ _ . ._ ___._.___ � . . . _ ___ _ � x_ _ I�C•��:ail EXHIBIT B FORM OF EDA NOTE UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF RAMSEY MOUNDS VIEW ECONOMIC DEVELOPMENT AUTHORITY TAXABLE TAX INCREMENT REVENUE NOTE OF 1994 (MULTI-TECH EXPANSION) [1] The Mounds View Economic Development Authority (the "EDA") hereby acknowledges itself to be indebted and, for value received, hereby promises to pay to , 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 of this Note (as defined in paragraph [2] hereof) and to pay interest on the unpaid portions of the Principal Amount of this Note at the rate of interest of seven and no hundredths percent (7.00�) per annum. Interest shall accrue from the date of the EDA's execution of the Certificate of Completion, as defined in the Development Agreement (hereinafter defined), and interest shall be computed on the basis of a 360-day year consisting of 12 30-day months. This Note is the "EDA Note" described and defined in that certain Development Assistance Agreement, dated as of , 1994 (as the same may be amended from time to time, the "Development Agreement"), between the EDA and Everest Development, Ltd., a Minnesota corporation, as the initial Developer under the Development Agreement. [2J The Principal Amount of this Note shall be $707,626. [3] Subject to the terms hereof, amounts due on this Note shall be payable on each February 1 and August 1, commencing August 1, 1996, and continuing through February 1, 2006 (the "Payment Dates" ) . [4] On each Payment Date (or, if not a business day of the EDA, the first business day thereafter) the EDA shall pay by check or draft mailed to the person that was the Registered Owner of this Note at the close of the last business day of the EDA preceding 262545 .1 g"' � . _ _ v _ . _ ____ _ � � - _ __ _ _ __ _ _ _ _. _..�:____ __ _ , ___ �� _ __ ___ ____ �_ _ . � r such Payment Date an amount equal to the lesser of (1) the Available Tax Increments (as hereinafter defined) and (2) the sum of (i) the accrued and unpaid interest hereon and (ii) the aggregate amount of the unpaid principal of this Note. The EDA shall have the option at any time to prepay in whole or in part the principal amounts of this Note at par plus accrued interest. All payments made by the EDA under this Note shall be applied first to pay accrued and unpaid interest on this Note and second toward payment of principal hereof. [5] The amounts due hereon shall be payable solely from certain tax increments (the "Tax Increments") which are paid to the EDA and which the EDA is entitled to receive and retain pursuant to the provisions of Minnesota Statutes, Sections 469.174 through 469.179, as the same may be amended or supplemented from time to time (the "Tax Increment Act"), from the EDA's Tax Increment Financing District No. 1(the "TIF District") within its Development District No. 2, both the TIF District and said Development District having been incorporated by the EDA into its Mounds View Economic Development Project. This Note shall terminate and be of no further force and effect on any date upon which the EDA shall have terminated the Development Agreement, on the last Payment Date (February 1, 2006) following payment thereon of the Available Tax Increments then due, or on the date that all principal and interest payable hereunder shall have been paid in full, whichever occurs earliest. [6] As used herein, the term Available Tax Increments, as of a Payment Date, means 85$ of those Tax Increments derived from the Improvements (as defined in the Development Agreement) and received by the EDA within the 6-month period preceding said Payment Date. The pledge of Available Tax Increments to the payment of this Note is junior and subordinate to the need and use thereof for payment of the Bonds, all as defined and described in the Development Agreement. [7] The EDA makes no representation or covenant, express or implied, that the revenues described herein will be sufficient to pay, in whole or in part, the amounts which are or may otherwise become due and payable hereunder. Any amounts which remain unpaid on this Note following the final Payment Date (February 1, 2006) shall no longer be a debt or obligation of the EDA whatsoever. [8] 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 the Development Agreement, and, further, if pursuant to the occurrence of an Event of 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. 262545 .1 B � 2 Reference is hereby made to the provisions of the Development Agreement for a fuller statement of the obligations of the Developer and of the rights of the EDA thereunder, and said provisions are hereby incorporated by reference into this Note to the same extent as though set out in full herein. The execution and delivery of this Note by the EDA, and the acceptance thereof by the Developer or its designee, as the initial Registered Owner hereof, shall conclusively establish this Note as the 11EDA Note" (and shall conclusively constitute discharge of the EDA's obligation to issue and deliver the same) under the Development Agreement. [9] 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 and limitations stated or referenced herein. Neither the full faith and credit nor the taxing powers of the EDA are pledged to or available for 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 constitute a source of payment of the EDA's obligations hereunder. [10] 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. [11] This Note may be assigned but upon such assignment the assignor shall promptly notify the EDA thereof in writing, and the assignee shall surrender this Note 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 conditions and subject to all provisions stated or referenced herein. [12] This Note has been issued as a taxable and no exempt obligation, and the EDA makes no representation, implied, that the interest on this Note is or may be from gross or taxable net income of the Registered Owner tax purposes. t as a tax- express or excludable for income [13] IN WITNESS WHEREOF, the Mounds View Economic Development Authority has caused this Note to be executed by the manual signatures of its President and its Executive Director and has caused this Note to be issued and dated as of , 1994. President 262545.1 B-3 Executive Director , __ . .�_ �. 4 ,_ , _ . . . _ � _. _. `.. _` . W _. � - ` � � F CERTIFICATION OF REGISTRATION It is hereby certified that the foregoing Note was as of the latest date listed below registered in the name of the last Registered Owner noted below, and that, at the request of said Registered Owner of this Note, the undersigned has as of said applicable date registered this Note 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 262545.1 DATE OF REGISTRATION B-41 , 1994 , 19 , 19 SIGNATURE OF EDA EXECUTIVE DIRECTOR �r� � . . �� _ _ � � . . , ___ _ v - .-_ _ �� _ . _ _� __ _ _ _. _ __ ___ __ _ _ ,,__ _ _ ___ .. I EXHIBIT C CERTIFICATE OF COMPLETION WHEREAS, the Mounds View Economic Development Authority (the "Authority") and Everest Development, Ltd., a Minnesota corporation (the "Developer"), have executed a Development Assistance Agreement, dated , 1994 (the "Development Agreement"), with respect to the completion by the Developer of certain improvements (the "Improvements"), specifically, an approximately 30,000 square foot expansion for Multi-Tech Systems, Inc., on certain land (the "Development Property") described in the Development Agreement; and WHEREAS, said Developer has to the present date substantially performed its undertakings under the Development Agreement in a manner deemed sufficient by the Authority to permit the execution of this certificate pursuant to Section 3.4 of the Development Agreement: NOW, THEREFORE, this is to certify that the Improvements have been completed on the Development Property in substantial conformance with the terms of the Development Agreement. Dated: , 19 MOUNDS VIEW ECONOMIC DEVELOPMENT AUTHORITY By Its 262545 .1 C-1 _ - = ,, � ,. - _ - _ .: �_ . . ._ .�- �� . . - _ _ _ __ _ __ __ __ , � � _ ___ __ ___ __ _ _ _ _ _ 5/3/94 Draft DEVELOPMENT ASSISTANCE AGREEMENT By and Between THE MOUNDS VIEW ECONOMIC DEVELOPMENT AUTHORITY And EVEREST DEVELOPMENT, LTD. [C.G. HILL PROJECT] This document drafted by: Briggs and Morgan 2200 First National Bank Building 332 Minnesota Street Saint Paul, Minnesota 55101 Telephone: (612) 223-6600 Facsimile: (612) 226-6450 263185.1 _ ___ __ __:_ _. TABLE OF CONTENTS (This Table of Contents is not part of the Development Assistance Agreement and is only for convenience of reference.) Pacte PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1 ARTICLE I - DEFINITIONS . . . . . . . . . . . . . . . . . . . 1-1 Section 1.1. Definitions . . . . . . . . . o . . . . . 1-1 ARTICLE II - REPRESENTATIONS, COVENANTS AND WARRANTIES ... 2-1 Section 2.1. Representations and Warranties by the Authority . . . . . o . . . . . . . . . . 2-1 Section 2.2o Representations, Covenants and Warranties by the Developer . . . . . . . . . . . . 2-2 ARTICLE III - THE IMPROVEMENTS . . . . . . . . . . . . . . 3-1 Section 3.1. Undertakings of the Developer ...... 3-1 Section 3.2. Undertakings of the Authority ...... 3-1 Section 3.3. Construction Plans . . . . . . . . . . . 3-3 Section 3.4. Certificate of Completian . . . . . . . . 3-4 ARTICLE IV - PROHIBITIONS AGAINST ASSIGNMENT AND TRP.NSFER; INDEMNIFICATION . . . . . . . . . . . . . . . . 4-1 Section 4.1. Prohibition Against Transfer of Property and Assignment of Agreement . . . . . . . 4-1 Section 4.2. Release and Indemnification Covenants .. 4-2 ARTICLE V - EVENTS OF DEFAULT . . . . . . . . . . . . . . . . 5-1 Section 5.1. Events of Default Defined ........ 5-1 Section 5.2. Remedies on Default . . . . . . . . . . . 5-1 Section 5.3o No Remedy Exclusive . . . . . . . . . . 5-1 Section 5.4a No Additional Waiver Implied by One Waiver . . . . . . . . . . . . . . . . . 5-2 ARTICLE VI - ADDITIONAL PROVISIONS . . . . . . . . . . . . . 6-1 Section 6.1. Titles of Articles and Sections ..... 6-1 Section 6.2. Notices and Demands . . . . . . . . . . . 6-1 Section 6.3. Counterparts . . . . . . . . . . . . . . 6-1 Section 6.4. Law Governing . . . . . . . . . . . . . . 6-1 Section 6.5. Time of the Essence . . . . . . . . . . 6-1 Section 6.6. No Third-Party Beneficiaries ...... 6-1 ARTICLE VII - TERMINATION OF AGREEMENT; EXPIRP,TION ..... 7-1 Section 7.1. Termination . . . . . . . . . . . . . , 7-1 Section 7.2. Sections to Survive Termination ..... 7-1 263185.1 1 �� 1 � =� � : ;,- . : �_ . ,Y � _ ._ _—�= �- .s=,��_ � ..=� � � Y : SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . 7-1 EXHIBIT A - Development Property . . . . . . . . . . . . . . A-1 EXHIBIT B - Form of EDA Note . . . . . . . . . o . . . . . B-1 EXHIBIT C - Certificate of Completion . . . . . . . . . . . . C-1 263185.1 Z Z .. . �_ =:J _.,_-y., _ "r��: "�-�.��,. i�`'� -=-'--:..� .. ! � - ---- . -- . ..� . --- --'- - � -- `rs � . .x __ __ _ _ �� DEVELOPMENT ASSISTANCE AGREEMENT THIS AGREEMENT is dated as of , 1994; is by and between the Mounds View Economic Development Authority and Everest Development, Ltd., a Minnesota corporation; and provides as follows: ARTICLE I DEFINITIONS Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears from the context: "Agreement" means this Development Assistance Agreement by and between the Authority and the Developer, as the same may be from time to time modified, amended or supplemented. "Authoritv" means the Mounds View Economic Development Authority. "Board" means the Board of Commissioners of the Authority, its governing body. "Bonds" means (1) the City's $6,000,000 Taxable General Obligation Tax Increment Bonds, Series 1988A, dated February 1, 1988, (2) the City's $930,000 General Obligation Tax Increment Bonds, Series 1989B, dated November 1, 1989, (3) the City's $1,490,000 Taxable General Obligation Tax Increment Bonds, Series 1989C, dated November 1, 1989, (4) and any bonds or similar obligations issued by the City or the Authority to refund any of the Bonds (including without limitation the City's $4,945,000 Taxable General Obligation Tax Increment Refunding Bonds, Series 1994B, dated May 1, 1994, and issued to "crossover refund" the above-mentioned Series 1988A Bonds as of February 1, 1996). "Certificate of Completion" means the certificate substantially in the form of the attached Exhibit C, to be executed by the Authority upon the conditions provided in Section 3.4 hereof upon completion of the Improvements. "C.G. Hill" means C.G. Hill & Sons, Inc., a Minnesata corporation. "Citv" means the City of Mounds View, Minnesota. "Construction Plans" means the plans, specifications, drawings and related documents on all construction work to be performed by 263185.1 1-1 � . Y -- ; � � -�-� _-_-- , _ - -� _ or on behalf of the Developer on the Development Property, including the Improvements and all other on-site improvements to be performed, installed or constructed upon the Development Property pursuant to this Agreement. Such plans shall at a minimum include, where applicable, the following: (i) site plan; (ii) foundation plan; (iii) basement plans; (iv) floor plan for each floor; (v) cross sections of each (length and width); (vi) elevations (all sides); (vii) the Design Plans; and (viii) adequate plans, drawings and specifications relating to all driveways, walks, parking and other improvements to be constructed upon the Development Property by the Developer. "Design Plans" means plans which show in adequate detail the design, architectural style, facia, signing, lighting, landscaping, parking and interior traffic components of the Improvements, or applicable portions thereof. "Developer" means Everest Development, Ltd., a Minnesota corporation, or its successors or assigns under this Agreement. "Develonment Costs" means unreimbursed costs incurred and paid by the Developer in acquiring, carrying, and improving the Development Property. "Development District" means the Authority's Development District No. 2, as amended. (Note: As of May 9, 1994, the Development District has been incorporated into the Authority's Mounds View Economic Development Project.) "Develooment Program" means the Authority's Development Program for the Development District, as amended. (Note: As of May 9, 1994, the Development Program has been incorporated into the Project Plan of its Mounds View Economic Development Project.) "Development Propertv" means the real property described in Exhibit A of this Agreement. "EDA Note" means the obligation substantially in the form of the attached Exhibit B which is described in Section 3.2. "Event of Default" means any Event of Default described in Section 5.1 of this Agreement. "Improvements" means the approximately 30,000 square foot building to be constructed by the Developer as C.G. Hill's manufacturing/warehouse/office facilities to be located within the Tax Increment Finance District, and all other improvements, including walks, landscaping, utility improvements and relocations, and f ixtures and equipment, to be constructed or installed upon the 263185 .1 1 _ 2 � � _ _ _ __ .-� _ __ � _ , w��.� . � � _ ��_ _• ._ _ : � �- � � Development Property in connection with and in order to facilitate the above described improvements. "Partv" means either the Developer or the Authority, as the context may require. "Parties" means the Developer and the Authority. "State" means the State of Minnesota. "Tax Increment Act" means Minnesota Statutes, Sections 469.174 through 469.179, as the same may be amended or supplemented. "Tax Increments" means those tax increments which the Authority shall be entitled to receive and retain, and which the Authority shall have actually received, from Ramsey County from time to time from the Tax Increment Financing District pursuant to the Tax Increment Act; and "Available Tax Increments" means, as further defined in Section 3.2, the portion of the Tax Increments which shall be available to pay the Authority's obligations under the EDA Note. "Tax Increment Financing District" means the Authority's Tax Increment Financing District No. 1(which has also been sometimes referred to as Tax Increment Redevelopment District No. 1) within the Development District, as now under the governance and control of the Authority, as described in Section 2.1(c). "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, unavailability of materials, Acts of God, fire or other casualty to the Improvements, litigation (including without limitation bankruptcy proceedings) and which directly results in delays; or acts of any federal, state or local governmental unit which directly result in delays. 263185.1 1-3 � .. . . . . . . .. . ____.. � _ . .., ' 'x�..� -T _ _� ' � _..,_� _ _.�� '_ r_'°__'_' . _ �__ . � ARTICLE II REPRESENTATIONS, COVENANTS AND WARRANTIES Section 2.1. Representations and Warranties by the Authoritv. The Authority represents and warrants that: (a) The Authority is a municipal corporation and political subdivision of the State organized and existing under the laws of the State. (b) The Authority has the authority to enter into this Agreement and carry out its obligations hereunder, subject to the same enforceability exceptions provided in Section 2.2(a) with respect to the Developer. (c) The Authority represents that the City established the Development District and adopted its Development Program pursuant to the Minnesota Municipal Development District Act, previously found in Minnesota Statutes, Chapter 472A, and now codified in Minnesota Statutes, Sections 469.124 through 469.134, and that the City established the Tax Increment Financing District within the Development District pursuant to the Tax Increment Act. The Authority also represents that pursuant to Minnesota Statutes, Section 469.093, on March 28, 1994, the City Council adopted an enabling resolution and thereby established the Authority. Pursuant to Minnesota Statutes, Section 469.094, Subdivision 2, the City transferred to the Authority, and the Authority accepted from the City transfer of, the control, authority, and operation of the Development District, including the Tax Increment Financing District therein, thereby empowering the Authority to exercise all of the powers that the City could exercise with respect to the Development District, subject to the covenant and pledge by the Authority to perform the terms, conditions, and covenants of all bond indentures and other agreements executed for the security of any bonds issued and any other activities undertaken with respect to the Development District. (d) The Authority makes no representation, guarantee, or warranty, either express or implied, and hereby assumes no responsibility or liability as to the Development Property or its condition (whether regarding soils, pollutants, hazardous wastes or materials or otherwise) or that the Development Property will be suitable for the purposes or needs of the Developer or C.G. Hill. 263185.1 2' 1 � -_=^ __ _ . . : : . . . _ . . . . . : .z _ f Section 2.2. Representatians. Covenants and Warranties bY the Developer. The Developer represents, covenants, and warrants that: (a) The Developer is a corporation duly organized, existing, and in good standing under the laws of the State of Minnesota. The Developer has full power and authority to enter into this Agreement and to perform its obligations hereunder and has taken or caused to be taken all actions necessary to make the Agreement, when executed and delivered by the Parties, the valid and binding agreement and obligation of the Developer, enforceable in accordance with its terms, except to the extent such enforceability may be limited by equitable principles and by laws affecting remedies and by bankruptcy, moratorium and insolvency laws and laws affecting creditors' rights, heretofore or hereafter enacted. (b) The Improvements shall be completed by the Developer in accordance with the terms of this Agreement and all applicable local, State and federal laws and regulations (including, but not limited to, environmental, zoning, building code and public health laws and regulations). (c) The Developer has received no notice or communication from any local, state or federal official to the effect (and, to the best of the Developer's knowledge, there is no other basis upon which to believe) that the execution of this Agreement or the performance by the Developer under this Agreement is, may be or will be in violation of any local, state or federal law or regulation. (d) The Developer agrees and covenants that it will use its best efforts to obtain or cause to be obtained, in a timely manner, all required permits, authorizations, licenses and approvals, including environmental and zoning approvals for the Development Property and the Improvements, and that the Developer will meet and abide by, in a timely manner, all requirements and conditions of all such permits, authorizations, licenses, and approvals and of all applicable local, state, and federal laws and regulations which must be obtained or met before the Improvements may be lawfully undertaken, completed and operated. (e) Neither the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby nor the fulfillment of or compliance with the terms and condi- tions of this Agreement is prevented or limited by or in conflict with or will result in a breach of the terms, conditions or provisions of the Developer's Articles of Incorporation or By-Laws or of any evidences of indebtedness, 263185.1 2 - 2 _ . _. ___ ..__`. .'�°"a, _�. i_ __—__._—__— _— I.s....."___ _-- . .___. F, �-..__ _ . ..._ __ . ___`_... "'f�3"_�.��. -.._. iru: .. __r _ . , . .,� _.. .. _ �. ... . _ . i . �.,,_., . . � . -. _ .__.. ...€ agreement, or instrument of whatever nature to which the Developer is now a party or by which it or its property is bound or will constitute a default under any of the foregoing. (f) The Developer represents that it would not be able to undertake the Improvements in the reasonably foreseeable future without the assistance to be provided by the Authority under this Agreement. (g) The Developer currently owns the Development Property and covenants that the Improvements will be constructed on the Development Property, consisting of approximately 115,119 square feet of land area, which C.G. Hill is purchasing from the Developer pursuant to an executed agreement. The Developer represents that it will construct the Improvements pursuant to an executed agreement with C.G. Hill, but C.G. Hill will own all of the Development Property and will occupy the Improvements. 263185 .1 2 - 3 . . : ^ ^.-� _�,s-= - ARTICLE III THE IMPROVEMENTS Section 3.1. Undertakings of the Developer. Subject to Unavoidable Delays, the Developer shall have completed the Improvements by December 31, 1994. Section 3.2. Undertakings of the Authoritv. The Developer hereby represents to the Authority that the Developer has incurred and paid or will incur and pay Development Costs which in the aggregate exceed $196,000. The Authority hereby agrees to defray $196,000 of the Development Costs by issuing the EDA Note to the Developer (or to such other person or entity as the Developer shall have theretofore designated in writing to the Authority as the initial registered owner of the EDA Note), as registered owner thereof, substantially in the form of Exhibit B 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 a condition to such reimbursement of Development Costs pursuant to the EDA Note, the Authority shall have executed the Certificate of Completion, and there shall have been satisfied all of the conditions precedent thereto provided in Section 3.4. (c) Subject to the provisions of the EDA Note, the principal of and interest on the EDA Note shall in the aggregate be payable on each February 1 and August 1, commencing August 1, 1996, and continuing through February 1, 2002 (the "Payment Dates"), in the respective amount or amounts described in this subsection. The sole source of funds available for payment of the Authority's obligations under this Section and correspondingly under the EDA Note shall be the Available Tax Increments, hereby defined to be for each applicable property tax year 85� of the Tax Increments derived from the Improvements. The amounts otherwise payable on the EDA Note on each Payment Date shall be limited to the Available Tax Increments received by the Authority within the preceding 6 months. All payments made on the EDA Note shall be applied first to pay accrued and unpaid interest on the EDA Note and second toward payment of principal. All amounts of Tax Increments which are not Available Tax Increments are not subject to this Agreement, 263185 .1 3 -1 _ . : � � � : _ � �� _ -- , : _ ;� : � � __-__ and the Authority retains full discretion as to any authorized application thereof, regardless of whether the Available Tax Increments are sufficient to reimburse the Developer in full for the above-described costs. To the extent that the Available Tax Increments are insufficient, through the final Payment Date (February 1, 2002) , to pay all accrued and unpaid interest on and the principal of the EDA Note, said unpaid amounts shall then cease to be any debt or obligation of the Authority whatsoever. (d) The unpaid principal of the EDA Note shall bear simple, non-compounded interest at 7.00� per annum from the date of execution of the Certificate of Completion. Interest shall be computed on the basis of a 360-day year consisting of 12 months of 30 days each. (e) The EDA shall not endeavor to issue the EDA Note so that the interest thereon shall be exempt from federal or State income taxation, and the Parties accordingly anticipate that the EDA Note will be a"taxable" obligation. (f) The EDA Note shall be a special and limited revenue obligation of the Authority and not a general obligation of the Authority, and only Available Tax Increments shall be used to pay the principal of and interest on the EDA Note. The EDA Note shall not be any obligation whatsoever of the City. (g) The Authority'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 satisfaction of the Authority, such unpaid obligations shall thereupon be reinstated and thereby become due and payable. (h) The EDA Note shall be governed by and payable pursuant to the additional terms thereof, as set forth in Exhibit B. In the event of any conflict between the terms of the EDA Note and the terms of this Section 3.2, the terms of the EDA Note shall govern. (i) Following any termination of this Agreement by the EDA pursuant to Section 5.2 hereof, no further or unpaid amounts of the EDA Note shall then or thereafter be due and payable by the Authority under this Section or the EDA Note but shall thereupon be extinguished. (j) The pledge of the Available Tax Increments made in this Section 3.2 and in the EDA Note to payment of the EDA Note shall in all respects be junior and subordinate to the 263185 .1 3 � 2 __ . _ . 1____ _ . ___ . . . . . "_�_ ' _ _ . . -.- _ �r_ " _ ' . ��v�. _- �-'_" � . __L=.-.. . ____ _..__._._._" . _�.. '.__�._�_i___��:>._ . _ . . �I I pledge of and need for the Tax Increments to provide timely payment of the debt service on the Bonds; provided, however, that the Authority does covenant to the Developer to apply all other Tax Increments (that is, all Tax Increments other than the Available Tax Increments) to such purposes and to resort to Available Tax Increments only in the event that said other increments are insufficient for such debt service purposes. Section 3.3. Construction Plans. (a) The Authority shall have no obligation to the Developer to take any action pursuant to any provision of this Agreement until such time as the Developer has submitted Construction Plans to the Authority, and the Authority has approved such Construction Plans. The Authority 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 3.3 shall constitute approval for the purposes of this Agreement only and shall not be deemed to constitute approval or waiver by the Authority 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 Authority within 10 working days of submission or shall be deemed to have been approved by the Authority. Any rejection of the Construction Plans shall state in writing the Authority's reasons therefor. If the Authority rejects the Construction Plans in whole or in part, the Developer may submit new or corrected Construction Plans within 30 days after receipt by the Developer of written notification of the rejection, accompanied by a written statement of the Authority specifying the respects in which the Construction Plans submitted by the Developer fail to conform to the requirements of this Section 3.3. The provisions of this Section 3.3 relating to approval, rejection and resubmission of the Construction Plans shall continue to apply until the Construction Plans have been fully approved by the Authority. Approval of the Construction Plans by the Authority shall not relieve the Developer of any obligation to comply with the provisions of this Agreement or the provisions of applicable federal, state and local laws, ordinances and regulations, and approval of the Construction Plans by the Authority shall not be deemed to constitute a waiver of any Event of Default. (b) If the Developer desires to make any material change in the Construction Plans after their approval by the 263185 .1 3 - 3 . . -=.� , .. C' '� ____ __' "' . "" �"_ _.�� , ��:_• I. _ �. . .. � . .... � .,� t�� . . . __� ' _ . c� ... ' � .' " "'_"" __i ' "' _ Authority, the Developer shall submit the proposed change to the Authority for its approval or rejection pursuant to this Section. A proposed change in the Construction Plans shall be deemed approved unless rejected by the Authority in writing within 10 working days of submission thereof with a statement of the Authority's reasons for such rejection. Section 3.4. Certificate of Completion. (a) Promptly after completion of the Improvements in accordance with the provisions of this Agreement, and upon written request made to the Authority, the Authority will execute the Certificate of Completion in the form attached hereto as Exhibit C, which shall then be a conclusive determination of satisfaction and termination of the agreements and covenants in this Agreement with respect to the completion of the Improvements. The following shall be conditions precedent to the Authority's obligation to execute the Certificate of Completion: (i) There shall exist no Event of Default hereunder, and the Improvements shall have been completed in substantial conformity to the terms of this Agreement; (ii) The City shall have issued a Certificate of Occupancy for the Improvements; and (iii) C.G. Hill shall have accepted and occupied the Improvements or indicated in writing its acceptance of the Improvements and its intention to occupy them. (b) If the Authority determines that it cannot execute the Certificate of Completion, it shall, within 20 days after written request therefor, provide a written statement indicating in adequate detail why it cannot do so and also indicating what measures or acts it will be necessary to be taken or performed in order to permit execution of the Certificate of Completion. 263185.1 3-4 . _ �...� _ � _ . _.� � y ____. _ , . �t.: _ � _ _ _ _ _ ARTICLE IV PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER; INDEMNIFICATION _ __ � � i Section 4.1. Prohibition Aaainst Transfer of Pro�ertv and Assignment of Agreement. The Developer represents and agrees that prior to the execution of the Certificate of Completion: (a) Except only by way of security for the purpose of obtaining financing necessary to enable the Developer or any successor in interest to the Development Property, or any part thereof, to perform its obligations with respect to the Improvements under this Agreement, and any other purpose authorized by this Agreement, the Developer 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, 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, except for the sale of the Development Property from the Developer to C.G. Hill, without the prior written approval given by the Authority in its sole discretione (b) The Authority as otherwise provided in such approval that: shall be entitled to require, except the Agreement, as conditions to any (i) Any proposed transferee shall have the qualifications and financial responsibility, in the reasonable judgment of the Authority, necessary and adequate to fulfill the obligations undertaken in this Agreement by the Developer. (ii) Any proposed transferee, by instrument in writing satisfactory to the Authority, shall, for itself and its successors and assigns, and expressly for the benefit of the Authority, have expressly assumed all of the obligations of the Developer under this Agreement and agreed to be subject to all the conditions and restrictions to which the Developer is subject unless the Developer agrees to continue to fulfill those obligations. 263185.1 4 - 1 _ . . _ ;: m� . , � : �� y � : __ ___-_ �_. �� _ _ __ __ � _ _ . __ _� � _: 'i � (iii) There shall be submitted to the Authority for review and prior written approval all instruments and ather documents involved in effecting the transfer of any interest in this Agreement or the Development Property. Section 4.2. Release and Indemnification Covenants. (a) The Developer releases from and covenants and agrees that the Authority 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 Improvements, except that the foregoing indemnity shall not apply to any liability arising pursuant to an act or omission of any of the Indemnified Partieso (b) Except for ar�y willful misrepresentation or any willful or wanton misconduct of the Indemnified Parties, the Developer 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 Improvements, provided, that this indemnification shall not apply to the warranties made or obligations undertaken by the Authority in this Agreement. (c) All covenants, stipulations, promises, agreements and obligations of the Authority contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Authority and not of any governing body member, officer, agent, servant or employee of the Authority. (d) This Agreement shall not create and shall not be construed to create any partnership, joint venture, agency or employment relationship between the Parties. 2631$5 .1 4 _ 2 -- _ -_ __- :�__ ,: , . �._ _ _ _ � � _ ___ _ _ __ _ _ . . . _ ___ __ .4-�.� ____ - � :� _ . �a � I 1= P,RTICLE V EVENTS OF DEFAULT Section 5.1. Events of Default Defined. The following are Events of Default under this Agreement: (a) Failure of timely payment of any real property taxes, special assessments, and similar impositions assessed against or with respect to the Development Property, subject to lawful rights to contest the same. (b) Failure in the substantial observance or performance of any covenant, condition, obligation, or agreement on the part of the Developer to be observed or performed under this Agreement. 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 5.2. Remedies on Default. Whenever any Event of Default occurs, in addition to all other remedies available to the Authority at law or in equity or elsewhere in this Agreement, (1) the Authority may suspend its performance under the Agreement until it receives assurances from the Developer, deemed adequate by the Authority, that the Developer has cured its default and will continue its performance under the Agreement and (2), after provision of 30 days written notice from the Authority to the Developer of the Event of Default, 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 Developer does not provide assurances to the Authority reasonably satisfactory to the Authority that the Event of Default will be promptly cured, then the Authority may terminate this Agreement. Section 5.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the Authority 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. 263185.1 5-1 E=�':§� Lw-.�:cL :�. �.�z�..—<.-. : r..:. �. : .. : ..: . - �------- �_�; :: . - =-3:=.� a. . L.�:�_.._ . �y L�. � � Section 5.4. No Additional Waiver Imolied bv 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. 263185.1 5-2 �- - �_ _ _, _ � __ � � � ARTICLE VI Additional. Provisions Section 6.1. Titles of Articles and Sectionso 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 6.2. 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 regular mail, postage prepaid, or delivered personally or telecopied, (a) in the case of the Developer, to Everest Development, Ltd., 2685 Long Lake Road, Roseville, Minnesota 55113, Attention: President; and (b) in the case of the Authority, to the Mounds View Economic Development Authority at the Mounds View City Hall, 2401 Highway 10, Mounds View, Minnesota 55112, Attention: Mounds View EDA Executive Director. 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 Party as provided in this Section. Section 6.3. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original hereof and all of which shall constitute one and the same instrument. Section 6.4. Law GoverninQ. The parties agree that this Agreement shall be governed and construed in accordance with the laws of the State of Minnesota. Section 6.5. Time of the Essence. Time shall be of the essence in this Agreement. Section 6.6. No Third-Party Beneficiaries. There shall, as against the Authority, be no third-party beneficiaries to this Agreement. More specifically, the Authority enters into this Agreement, and intends that the consummation of the Authority obligations contemplated hereby shall be, for the sole and exclusive benefit of the Developer, and notwithstanding the fact that any other "persons" may ultimately participate in or have an interest in the Project, or any portion thereof, the Authority does not intend that any party other than the Developer shall have, as alleged third party beneficiary or otherwise, any rights or 263185.1 6 - 1 interests hereunder as against the Authority, and no such other party shall have standing to complain of the Authority's exercise of, or alleged failure to exercise, its rights and obligations, or of the Authority's performance or alleged lack thereof, under this Agreement. 263185 .1 6 - 2 .. __: i ' _ ;� ��. . .��._ .. _ . 1 = ��:: . _.::�_ . '"_ , C-.-'_" " . " . . __'_"_'1 _ ... ��-_ : -° -�, _ ' __ "_" �� .___ ' __.__ .».. . r _ _"_' _ _. . . ... . _ . _ .' __��__ .-�.,.�.�.....�.� _ �.��:� f ARTICLE VII TERMINATION OF AGREEMENT; EXPIRATION Section 7.1. Termination. The Authority may terminate this Agreement as provided herein, and otherwise this Agreement shall terminate upon payment of the EDA Note in accordance with its terms and the discharge of all of the Parties' other respective obligations hereunder, but no such termination shall terminate any indemnification or other rights or remedies arising hereunder due to any Event of Default which occurred prior to such termination. Section 7.2. Sections to Survive Termination< Section 4.2 shall, in addition to the other surviving provisions referenced in Section 7.1, survive the termination of this Agreement. IN WITNESS WHEREOF, the Authority has caused this Agreement to be duly executed in its name and behalf by its duly authorized representatives, and the Developer has caused this Agreement to be duly executed in its name and behalf by its duly authorized representatives on or as of the date first above written. MOUNDS VIEW ECONOMIC DEVELOPMENT AUTHORITY By President By Executive Director EVEREST DEVELOPMENT, LTD. By Its President By Its Chairman of the Board [Execution page of Development Assistance Agreement with the Mounds View Economic Development Authority.] 263185 . t %' 1 •�_ _.� i �_u.. _-�:,_:; i.=. �� _c-� ..____ . _ = _-----'�� _ � - -- _�-_°-----.- i�� ___ __ _ _ _ __ _ _ _. _ __ ._ . _ � _ _._, � F EXHIBIT A DEVELOPMENT PROPERTY The Development Property consists of the following described properties, all located in the City of Mounds View, Ramsey County, Minnesota: 263185 .1 A-1 _ „ � « _ .; �; - _ _ _ _ _ - -�- --., . < � � _ _ _ . _______ � �� .._ _._.�.__ No. R-1 EXHIBIT B FORM OF EDA NOTE UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF RAMSEY MOUNDS VIEW ECONOMIC DEVELOPMENT AUTHORITY TAXABLE TAX INCREMENT REVENUE NOTE OF 1994 (C.G. HILL PROJECT) [1] The Mounds View Economic Development Authority (the "EDA") hereby acknowledges itself to be indebted and, for value received, hereby promises to pay to , 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 of this Note (as defined in paragraph [2] hereof) and to pay interest on the unpaid portions of the Principal Amount of this Note at the rate of interest of seven and no hundredths percent (7.00�) per annum. Interest shall accrue from the date of the EDA's execution of the Certificate of Completion, as defined in the Development Agreement (hereinafter defined), and interest shall be computed on the basis of a 360-day year consisting of 12 30-day months. This Note is the "EDA Note" described and defined in that certain Development Assistance Agreement, dated as of , 1994 (as the same may be amended from time to time, the "Development Agreement"), between the EDA and Everest Development, Ltd., a Minnesota corporation, as the initial Developer under the Development Agreement. [2] [3] shall be 1, 1996, Dates"). The Principal Amount of this Note shall be $196,000. Subject to the terms hereof, amounts due on this Note payable on each February 1 and August 1, commencing August and continuing through February 1, 2002 (the "Payment [4] On each Payment Date (or, if not a business day of the EDA, the first business day thereafter) the EDA shall pay by check or draft mailed to the person that was the Registered Owner of this Note at the close of the last business day of the EDA preceding 263185 .1 B-1 ,_ ; _ - � � � � � � :.��__.__� _.____:__:: �y: � _ � � � .— v.-- such Payment Date an amount equal to the lesser of (1) the Available Tax Increments (as hereinafter defined) and (2) the sum of (i) the accrued and unpaid interest hereon and (ii) the aggregate amount of the unpaid principal of this Note. The EDA shall have the option at any time to prepay in whole or in part the principal amounts of this Note at par plus accrued interest. All payments made by the EDA under this Note shall be applied first to pay accrued and unpaid interest on this Note and second toward payment of principal hereof. [5] The amounts due hereon shall be payable solely from certain tax increments (the "Tax Increments") which are paid to the EDA and which the EDA is entitled to receive and retain pursuant to the provisions of Minnesota Statutes, Sections 469.174 through 469.179, as the same may be amended or supplemented from time to time (the "Tax Increment Act"), from the EDA's Tax Increment Financing District No. 1(the "TIF District") within its Development District No. 2, both the TIF District and said Development District having been incorporated by the EDA into its Mounds View Economic Development Project. This Note shall terminate and be of no further force and effect on any date upon which the EDA shall have terminated the Development Agreement, on the last Payment Date (February 1, 2002) following payment thereon of the Available Tax Increments then due, or on the date that all principal and interest payable hereunder shall have been paid in full, whichever occurs earliest. [6] As used herein, the term Available Tax Increments, as of a Payment Date, means 85$ of those Tax Increments derived from the Improvements (as defined in the Development Agreement) and received by the EDA within the 6-month period preceding said Payment Date. The pledge of Available Tax Increments to the payment of this Note is junior and subordinate to the need and use thereof for payment of the Bonds, all as defined and described in the Development Agreemente [7] The EDA makes no representation or covenant, express or implied, that the revenues described herein will be sufficient to pay, in whole or in part, the amounts which are or may otherwise become due and payable hereunder. Any amounts which remain unpaid on this Note following the final Payment Date (February 1, 2002) shall no longer be a debt or obligation of the EDA whatsoever. [8] 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 the Development Agreement, and, further, if pursuant to the occurrence of an Event of 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. 263185 .1 B � 2 _ . : L_. . ., ' ' _: � - _ ' - . .-... . �� ---° --- Y: . r � ._ . �.� _ .� . . . . � _ y Reference is hereby made to the provisions of the Development Agreement for a fuller statement of the obligations of the Developer and of the rights of the EDA thereunder, and said provisions are hereby incorporated by reference into this Note to the same extent as though set out in full herein. The execution and delivery of this Note by the EDA, and the acceptance thereof by the Developer or its designee, as the initial Registered Owner hereof, shall conclusively establish this Note as the "EDA Note" (and shall conclusively constitute discharge of the EDA's obligation to issue and deliver the same) under the Development Agreement. [ 9] 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 and limitations stated or referenced herein. Neither the full faith and credit nor the taxing powers of the EDA are pledged to or available for 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 constitute a source of payment of the EDA's obligations hereunder. [10] 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. [11] This Note may be assigned but upon such assignment the assignor shall promptly notify the EDA thereof in writing, and the assignee shall surrender this Note 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 conditions and subject to all provisions stated or referenced herein. [12] This Note has been issued as a taxable and not as a tax- exempt obligation, and the EDA makes no representation, express or implied, that the interest on this Note is or may be excludable from gross or taxable net income of the Registered Owner for income tax purposes. [13] IN WITNESS WHEREOF, the Mounds View Economic Development Authority has caused this Note to be executed by the manual signatures of its President and its Executive Director and has caused this Note to be issued and dated as of , 1994. President 2631SS.1 B-3 Executive Director , . _ .. . . . . _ � .." "._' .. ' 1 ' �,' ' �"" _ " _ '1 � . _ ... : . _. : . , .. _ . . �-�_..._��-.: _�: ' _ � CERTIFICATION OF REGISTRATION "� � . . � � _ _ '"_ C � It is hereby certified that the foregoing Note was as of the latest date listed below registered in the name of the last Registered Owner noted below, and that, at the request of said Registered Owner of this Note, the undersigned has as of said applicable date registered this Note 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 , 1994 , 19 , 19 263185.1 B-4 SIGNATURE OF EDA EXECUTIVE DIRECTOR .�_ .� -___ _ ..� :_.. ..� : - : . .__,_ . _ - �. _ ___ .� .� �; _� . � � � _ _ � i � EXHIBIT C CERTIFICATE OF COMPLETION WHEREAS, the Mounds View Economic Development Authority (the "Authority") and Everest Development, Ltd., a Minnesota corporation (the "Developer"), have executed a Development Assistance Agreement, dated , 1994 (the "Development Agreement"), with respect to the completion by the Developer of certain improvements (the "Improvements"), specifically, an approximately 30,000 square foot building for C.G. Hill & Sons, Inc., on certain land (the "Development Property") described in the Development Agreement; and WHEREAS, said Developer has to the present date substantially performed its undertakings under the Development Agreement in a manner deemed sufficient by the Authority to permit the execution of this certificate pursuant to Section 3.4 of the Development Agreement: NOW, THEREFORE, this is to certify that the Improvements have been completed on the Development Property in substantial conformance with the terms of the Development Agreement. Dated: , 19 MOUNDS VIEW ECONOMIC DEVELOPMENT AUTHORITY By Its 263185 .1 C-1 ._ :��. � �� .,. . . ..� _. _ ._ _____ _ . � � �� . - �--�__ __ : :: � . IYIOUNDS 'VIEW ECONOMIC DEVELOPMENT AU']CHORITY REQUEST FOR EDA C�NSIDERATI�N STAFF REPORT EDA l�f�ETING DATL May 9, 1994 (Work Session) EDA Actiou: ❑ Special Order of Business Agenda Section: 2. ❑ Public Hearinbs Rcport Number: ❑ C�iisclit Agc;ncla Itcpurt Datc: 5-5-9 ❑ CDA Busi►�css Itcni Dcscrip�ion: Discussion Regarding Agreement on Future TIF Assistance for Business Park Executive Director's IZeview/Recommendation: - No comments to supplement tliis report - �011llll(;Il[S 111t:1C�1CCr Lxplauil[lOI1�SUt11I11111"y (atlach suNplcmcnt shcets ;is nea:ssary) SUMNGIRY: Jim O'Meara has drafted the attached Agreement for consideration by the EDA Commissioners. It represents a non-bindina agreement by which the EDA and Everest will have agreed upon some broad guidelines for future tax increment assistance for the completion of the Business Parke The Agreement has been prepared only to represent a possible solution to the on/off, on/off discussions that have been held with Everest for the past year and a half regarding the level of TIF assistance (if any) that the City (henceforth to be the EDA) would provide for projects within the Business Park. The Agreement sets forth some of the basics that have been finalized in regards to the Agreements both with Hill and Multi-Tech and represents guidelines by which both the EDA and Everest may use in negotiating future developments. No action is requested other than discussion of the merits of or objections to such an agreement. �, i� � ; � � � ' , � � '.�� i . Samantha�Ordu o, Executive Director RrCO�i��f ENDATIUN: Agreement This Agreement is dated as of , 1994; is by and between the Mounds View Economic Development Authority (the "EDA") and Everest Development, Ltd., a Minnesota corporation (the "Developer"); and provides as follows: 1. Recitals. (a) The City the Developer have development of the "Business Park"), particularly in t bonding to defray thereto. of Mounds View, Minnesota (the "City"), and in recent years jointly cooperated in the Developer's Mounds View Business Park (the with the City's participation coming ie form of tax increment assistance and certain public development costs related (b) More particularly, the City established its Development District No. 2, adopted the Development Program for the Development District, and established Tax Increment Financing District No. 1(the "TIF District") within the Development District, with the Business Park being within the Development District and the TIF District. The EDA represents that the City has transferred to the EDA the control and governance of the Development District, its Development Program, and the TIF District and its tax increment financing plan, and the EDA has subsequently incorporated all of the aforesaid into the EDA's Mounds View Economic Development Project. (c) While build-out of the Business Park has proceeded, there remain several undeveloped building sites (the "Remaining Sites") within the Business Park, and the EDA and the Developer desire to establish certain understandings as to the circumstances in which tax increment assistance may be appropriate to assist the development of such sites and the final build-out of the Business Park. 2. Assistance Guidelines. The EDA hereby states its preliminary intention to approve tax increment financing assistance for development projects proposed and undertaken by the Developer on the Remaining Sites within the Business Park, subject to the following preliminary conditions: (a) The term of the tax increment assistance would be for a period between five and nine increment years, depending on demonstrated need, but in no event beyand the duration of the TIF Districte (b) The Board of the EDA at the time shall have determined that there is a need for the level and amount of the tax increment assistance sought. 263272.1 _ _ _ r _ «. . _ , __ � ___. ___ >� - - �� ; �. �.� ,� �. � �� _ . _ __ _ _ _ � (c) The assistance would be provided on a"pay as you go" basis from 85� (or other identified portion) of the tax increments generated by the particular project, with assistance amounts bearing simple interest at up to 7.00� per annum until paid, all subject to the limitation that the City obtain enough tax increments from the TIF District as a whole to pay the debt service on the various general obligation bonds which have been sold to aid the development of the Business Park. (d) Each project so assisted shall be an owner-occupied facility for a company or other user acceptable to the Board. (e) Design and construction plans for each new project be consistent with the standards heretofore established for the Business Park and atherwise acceptable to the Board. (f) Each proposed project be consistent with applicable law and receive all necessary approvalsa This Agreement shall not constitute the commitment by the Developer with respect to the development of any of the Remaining Sites within the Business Park and shall not be interpreted as a final commitment of the EDA to provide tax increment assistance for any such development. Any such assistance approved hereafter shall be by separate written agreement, superseding this Agreement. MOUNDS VIEW ECONOMIC DEVELOPMENT AUTHORITY By Its President By Its Executive Director EVEREST DEVELOPMENT LTD., a Minnesota Corporation By Its President By Its Chairman of the Board 263272.1 2