HomeMy WebLinkAbout6.B. Council Opens Public Hearing on Proposed Bridgewater LLC/Trystar Tax Abatement Financing and Contract for Private Development-Res. No. 7192 �J. �i
CITY OF SHAKOP�E
Me�norandum
CASE NO.: 12011
TO: Honorable Mayor and City Council
Economic Development Authority (EDA)
Mark McNeill, City Administrator/EDA Executive Director
FROM: R. Michael Leek, Community Development Director
SUBJECT: Consideration of Proposed Bridgewater L.L.C/Trystar Tax Abateinent
Financing and Contract for Private Development
MEETING DATE: May l, 2012
INTRODUCTION:
The City Council is asked to open, conduct, and close the public hearing on the proposed tax
abatement and contract for private development(CPD)with Bridgewater L.L.0 for the Trystar
project. At the conclusion of the public hearing and the discussion,the City Council is asked to
consider approval of the CPD between Shakopee, Scott County and Bridgewater L.L.0 for the
Trystar manufacturing and corporate headquarters project.
The applicant has also requested tax abatement assistance from Scott County,and the County Board
is scheduled to take up the request on Tuesday, May 8, 2012.
DISCUSSION:
The City Council has in recent months seen a full presentation regarding Trystar's plans for a
corporate headquarters on 28 acres in the Dean Lakes PUD. Under the terms of the CPD, Trystar
will construct a 130,000 square foot structure with manufacturing, storage/warehousing and office
components. Within two years of completion of these minimuin improvements, Trystar commits to
the creation at the facility eighty (80) full time equivalent jobs at 275% of the federal minimum
wage.
The proposed maximum abatement tenn is fifteen(15)years, and the maximum City abatement is
$512,796.00
The following documents are attached for the Council's information and action;
• Contract for Private Development;
• City Council Resolution No. 7192 approving the CPD;
RELATIONSHIP TO CITY GOALS:
The proposed project and requested actions relative to the TIF Plan and CPD relate to the following
City Goals;
H:\CC\2012\5-01-12\Trystar rpt_05012012_1.doc 1
B. Positively manage the challenges and opportunities presented by growth,development and
change.
D. Maintain, improve and create strong partnerships with other public and private sector
entities.
ACTIONS REQUESTED:
After opening the public hearing, taking testimony, and closing the public hearing, the City
Council is asked to approve Resolution No. 7192 approving the contract for private developinent
with Bridgewater L.LC. and Scott County for the Trystar manufacturing and corporate
headquarters project.
�
- . �; ��� �
R. Michael Leek
Community Development Director
H:\CC\2012\5-01-12\Trystar rpt_05012012_1.doc 2
CITY OF SHAKOPEE,MINNESOTA
RESOLUTION NO. 7192
RESOLUTION GRANTING A PROPERTY TAX ABATEMENT
AND APPROVING A CONTRACT FOR PRIVATE
DEVELOPMENT (INCLUDING A BUSINESS SUBSIDY
AGREEMENT) FOR CERTAIN PROPERTY IN THE CITY OF
SHAKOPEE
BE IT RESOLVED by the City Council (the "City Council") of the City of Shakopee, Minnesota
(the"City")as follows:
Section 1. Recitals.
1.01. The City has determined a need to grant a property tax abatement (the "Abatement")
pursuant to Minnesota Statutes, Sections 469.1812 to 469.1815 (the "Act") to Bridgewater, LLC, a
Mii�nesota limited liability compairy orga�lized under the laws of the State of Minnesota (the '`Developer"),
for the construction of an approximately 130,000 square feet manufacturing and warehouse facility with
office space (the "Minimum Improvements") located on approximately 28 acres in Dean Lakes
PUD/business park, adjacent to U.S. Highway 169 in the City as legally described in Exhibit A attached
hereto(the"Properiy"). Following the co�npletion of the Minimwn Improvements,Trystar, Inc.,a Minnesota
corporation organized under the laws of the State of Minnesota (the "Tenant"), will lease the Minimum
Improvements from the Developer and operate the manufacturing and warehouse facility.
1.02. On May 8, 2012, Scott County (the "County") shall conduct a duly noticed public hearii�g
on an abatement proposed to be provided by the County and will also consider granting the Developer an
abatement.
1.03. This City Council has reviewed information concerning the above-referenced Minimum
Improvements, including a Contract for Private Development(the "Development Agreement") containing a
Business Subsidy Agreemei�t(the"Subsidy Agreement")proposed to be entered into by the City,the County,
the Developer, and the Tenant. The Development Agreement and the Subsidy A�reement are incorporated
herein by reference.
1.04. On the date hereof, the City Council conducted a duly noticed public hearing on the
Abatement proposed to be granted by the City and the business subsidy to be provided to the Developer
pursuant to the Development Agreeme��t. The views of all interested persons were heard at the public
hearing.
Section 2. Findin�s.
2.01. The recitals set forth above are incorporated into this Resolution.
2.02. It is hereby found and determi�led that the benefits to the City from the Abatement will be at
least equal to the costs to the City of the Abateinent, because (a)the City believes that the development to be
facilitated is not reasonably likely to occur absent the Abatement, and (b)the long-term taxes collected from
the Property after termination of the Abatement will far exceed the amount of the Abatement returned to the
Developer.
401144v4 JAE SFI235-20
2.03. It is hereby found and determined that the Abatement is in the public interest because such
action will increase the tax base and provide additional employment opportunities in the City.
2.04. It is further specifically found and determined that the Abatement is expected to result in the
following public benefits:
(a) Creation of an estimated $10,793,827 increase in market value for property tax purposes,
which will be available to all taxing jurisdictions after expiration of the Abatement.
(b) Provision of a minimu�n of 80 new jobs i�� the City, including 55 jobs to be relocated to
the City and 25 new jobs to be created in the City, as set forth in the Subsidy Agreement. It is the
intent of the Tenant to begin hiring employees for the 2� new jobs to be located in the City prior
to the completion of construction of the Minimum Improvements so that the new employees can
be trained at the Tenant's existing location and begin warking at the Minimum Improvements as
soon as it is completed. These jobs shall be considered part of the 25 new jobs to be created in
the City.
(c) Facilitate future additional development of the surrounding properties within the City's
Dean's Lake Business Park.
Section 3. Actions Ratified; Abatement Approved; Development A�reement and SubsidX
A�reement A�proved.
3.01. The City Coui�cil hereby ratifies all actions of the City's staff and consultai�ts in arranging
for approval of this Resolutio►� in accordance with the Act.
3.02. Subject to the provisions of the Act, the Abatement is hereby approved and adopted subject
to the following terms and conditions:
(a) The term "Abatement" mea��s the real property taxes generated in any tax-payable year by
extending the City's total tax rate for that year against the tax capacity of the Minimum
Improvements constructed on the Property (including any future expansions during the term of the
Abatement) in accordance with the Development Agreement, excluding the tax capacity of the land,
and excluding the portion of the tax capacity attributable to the areawide tax under Minnesota
Statues,Chapter 473F,all as of January 2 in the prior year.
(b) The Abatement will be paid by the City to the Developer on the dates a��d in accordance
with all the terms and conditions of the Development Agreement.
(c) In accordance with Section 469.1813, subdivision 8 of the Act, in no year shall the
Abatement, together with all other abatements approved by the City under the Act ai�d paid in
that year exceed the greater of 10% of the net tax capacity of the City for that year or $200,000
(the "Abatement Cap"). The City �nay grant any other abatements permitted u��der the Act after
the date of this Resolutioi�, provided that to the extent the total abatements in any year exceed the
Abateme��t Cap, the allocatioi� of Abatement Cap to such other abatements is subordinate to the
Abatement granted pursuant to this Resolution.
(d) The Abatement shall commence in the first taxes payable year after the County Assessor's
market value of the Properiy reflects the market value of the completed Minimum Improvements.
401144v4 JAE SH235-20 2
(e) In no event shall the payment of Abatement to the Developer exceed $5]2,796 or continue
to be paid for more than fifteen years.
(fl The Abatement is subject to modification in accordance with the Act, subject to the terms of
the Develop�nent Agreement.
(g) In accordance with Section 469.1815 of the Act, the City will add to its levy in each year
during the term of the Abatement the total estimated amount of current year Abatement granted
under this Resolution.
(h) The City makes no warranties or representations regarding the amount or availability of the
Abatement.
(i) The Abate►nent shall be provided to the Developer pursuant to the terms and conditions of
the Development Agreement as approved by the City Council.
3.03. The Development Agreement and the Subsidy Agreement are hereby in all respects
authorized,approved and confirmed and the Mayor,City Administrator,and City Clerk are hereby authorized
and directed to execute and deliver tl�e Development Agreement (which incorporates the Business Subsidy
A�reement) for and on behalf of the City in substantially the form now on file with the City but with such
modifications as shall be deemed necessary, desirable or appropriate, their execution thereof to constitute
coi�clusive evidence of their approval of any and all modifications therein.
Section 4. Implementation. The Mayor, the City Administrator, and the City Clerk are
authorized and directed to execute and deliver any additional agreements, certificates or other documents that
the City determines are necessary to implement this Resolution.
Section 5. Effective Date. This Resolution is effective upon execution in full of the
Development Agreement.
Approved by the City Council of the City of Shakopee, Minnesota,this 1 st day of May, 2012.
CITY OF SHAKOPEE,MINNESOTA
Mayor
Attest:
City Clerk
40]144v4 JAE SH235-20 3
EXHIBIT A TO ABATEMENT RESOLUTION
THE PROPERTY
Lot 1, Block 1, Dean Lakes 8th Addition, according to the recorded plat thereof, Scott County, Minnesota
Fourth Draft
Thursday,Apri126,2012
CONTRACT
FOR
PRIVATE DEVELOPMENT
between
CITY OF SHAKOPEE,MINNESOTA
and
SCOTT COUNTY,MINNESOTA
and
TRYSTAR, INC.
ana
BRIDGEWATER, LLC
Dated as of: May_,2012
This document was drafted by:
KENNEDY & GRAVEN, Chartered (JAE)
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, Minnesota 55402
Telephone: 337-9300
TABLE OF CONTENTS
Pa�e
PREAMBLE .................................................................................................................................................1
ARTICLE I
Definitions
Sectionl.l. Definitions...........................................................................................................................2
ARTICLE II
Representations and Warranties
Section 2.1. Representations by the City.................................................................................................5
Section 2.2. Representations by the County............................................................................................5
Section 2.3. Representations and Warranties by the Developer..............................................................5
Section 2.4 Representations and Warranties by the Tenant...................................................................6
ARTICLE III
Pronerty Tax Abatement
Section 3.1. Status of Development Property .........................................................................................7
Section 3.2. Environmental Conditions...................................................................................................7
Section 3.3. Master Development Agreement Abatement for Infrastructure..........................................7
Section 3.4. Development Property Tax Abatement...............................................................................9
Section 3.5. Payment of City and County Costs...................................................................................10
Section3.6. Records..............................................................................................................................l0
Section 3.7. Business Subsidy Agreement............................................................................................l l
ARTICLE IV
Construction of Minimum Improvements
Section 4.1. Construction of Improvements..........................................................................................13
Section 4.2. Construction Plans ............................................................................................................13
Section 4.3. Commencement and Completion of Construction............................................................14
Section 4.4. Certificate of Completion..................................................................................................14
ARTICLE V
Insurance and Condemnation
Section5.1. Insurance...........................................................................................................................15
Section5.2. Subordination....................................................................................................................16
ARTICLE VI
Taxes; Minimum Market Value
Section 6.1. Right to Collect Deli►Iquent Taxes....................................................................................17
Section 6.2. Reduction of Taxes ...........................................................................................................17
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399867v3 JAE SH235-20
ARTICLE V II
Financin�
Section7.1. Financing...........................................................................................................................18
Section 7.2. Modification; Subordination.............................................................................................18
ARTICLE VIII
Prohibitions Against Assignment and Transfer; Indemnification
Section 8.1. Representation as to Development....................................................................................19
Section 8.2. Prohibition Against Developer's Transfer of Property and Assignment of
Agree►nent.........................................................................................................................19
Section 8.3. Release and Indemnification Covenants...........................................................................20
ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined.................................................................................................21
Section 9.2. Remedies on Default.........................................................................................................21
Section 9.3. No Remedy Exclusive.......................................................................................................22
Section 9.4. No Additional Waiver [mplied by One Waiver ...............................................................22
Section9.5. Attorney Fees....................................................................................................................22
Section 9.6. Default by City or County.................................................................................................22
ARTICLE X
Additional Provisions
Section 10.1. Conflict of Interests; Representatives Not Individually Liable.........................................23
Section 10.2. Equal Employment Opportunity.......................................................................................23
Section ]0.3. [Intentionally Omitted]......................................................................................................23
Section 10.4. Provisions Not Merged With Deed...................................................................................23
Section 10.5. Titles of Articles and Sections ..........................................................................................23
Section 10.6. Notices and Demands........................................................................................................23
Section10.7. Counterparts......................................................................................................................24
Section10.8. Recording..........................................................................................................................24
SIGNATURES ......................................................................................................................................... S-1
SCHEDULE A Development Property.....................................................................................................A-I
SCHEDULE B Assessed Property...........................................................................................................B-1
SCHEDULE C Certificate ofCompletion................................................................................................G1
SCHEDULED Form ofNote...................................................................................................................D-1
SCHEDULE E Form of Subordination Agreement .................................................................................E-1
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399867v3 JAE SH235-20
CONTRACT FOR PRIVATE DEVELOPMENT
THIS CONTRACT FOR PRNATE DEVELOPMENT (the "Agreement") is made as of the
day of May, 2012, by and between the C[TY OF SHAKOPEE, MINNESOTA, a Minnesota
►nunicipal corporation (the"City"), SCOTT COUNTY, MINNESOTA, a political subdivision of the State
of Mii�nesota (the "County"), BR[DGEWATER, LLC, a Mi►Inesota limited liability corporation (the
"Developer")and TRYSTAR, INC., a Mii�nesota corporation (the "Tenant").
RECITALS
WHEREAS, pursuant to Minnesota Statutes, Sections 469.1812 to 469.1815 (the "Act"), the City
and the County are authorized to abate property taxes in order to increase or preserve tax base and provide
employment opportunities; and
WHEREAS, pursuant to Mi��nesota Statutes, Sections 116J.993 through 116J.995,as amended (the
"Business Subsidy Act"), the City and the County are authorized to grant business subsidies to facilitate
development in the City,the County,and the State of Minnesota(the"State"); and
WHEREAS, the Developer intends to purchase certain land in the City (the "Development
Property") and desires to construct a manufacturii�g and warehouse facility on the Development Property
(the "Minimum Improvements") which will be leased to and operated by the Tenant, all as provided in
this Agreement; and
WHEREAS, pursuant to the Act, the City Council of the City and the Board of Commissioners of
the County have each approved resolutions authorizing abatements of a portion of real property taxes on
the Development Property; a��d
WHEREAS, in order to reiinburse the Developer for certain costs related to the coi�struction of the
Minimum Improvements, the Developer has requested the following assistance: (i) a tax abatement from the
City for up to fifteei�years in the maximum amount of$512,796; and(ii)a tax abatement from the County for
up to fifteen years in the maximum amount of$542,825;and
WHEREAS, the County and the City have determined that the property tax abatements
contemplated herei�� and the fulfillment generally of this Agree�nent, are in the vital and best interests of
the City and the County and tlle health, safety, morals, and welfare of their residents, and in accord with
the public purposes and provisions of the applicable State and local laws and requirements under which
this Agreement has been undertaken.
NOW, THEREFORE, in consideration ofthe mutual obligations contained in this Agreement, the
parties agree as follows:
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399867v3 JAE SH235-20
ARTICLE I
Definitions
Section l.1. Defi��itions. In this Agreement, unless a different meaning clearly appears from the
context:
"Act" ineans Minnesota Statutes, Sectioi�s 469.1812 to 469.1815, as amended.
"Abatement Capacity" means the maximum amount of property taxes that may be abated in any
year by a political subdivision under Section 469.1813, subd. 8 of the Act, as amended. As of the date of
this Agreeme��t, the Abatement Capacity far the City is the greater of 10% of the net tax capacity of the
City for the taxes payable year to which the abatement applies or $200,000. As of the date of this
Agreement, the Abatement Capacity for the County is the greater of 10% of the net tax capacity of the
County for the taxes payable year to which the abatement applies or$200,000
"Agreement" means this Coi�tract for Private Development, as the same may be from time to time
modified, amended, or supplemented.
"Assessed Property" means the Commercial Property, the Business Park Property, and the
Residential Property, as described in Schedule B attached hereto.
"Available Abatement" means, on each Payment Date, the sum of the City Tax Abatement and
County Tax Abatement generated in the preceding six (6) months with respect to the Minimu�n
Improvements and remitted to the City by the County, or such lesser amount as shall cause: (i) the
c�imulative City Tax Abatement paid to the Developer during the term of this Agreement to be no more
than $512,796; (ii) the cumulative County Tax Abatement paid to the Developer during the term of this
Agreement to be no more than $542,825; and (iii) the cumulative County Tax Abate�nent and City Tax
Abatement paid to the Developer during the term of this Agreement to be ��o more than $1,055,000.
`Business Day" means any day except a Saturday, Sunday, legal holiday, a day on which the City
or County is closed for busi��ess, or a day on which banki��g institutions in the City are authorized by law
or executive order to close.
`Business Park Property"means the property so described in Schedule B attached hereto.
`Business Subsidy Act"means Minnesota Statutes, Section 116J.993 to 1 16J.995,as amended.
"City" means the City of Shakopee, Minnesota.
`°City Tax Abatement" means the real property taxes (i) generated in any tax-payable year by
extending the City's local tax rate against the tax capacity of the Minimum Improvements (excluding land
and excluding any portion of the tax capacity attributable to the areawide tax under Minnesota Statutes,
Chapter 473F)as of January 2 in the prior year, and (ii) paid to the City by the Cou��ty.
"City Abatement Resolution" means Resolution No. 2012-_, approved by the City Council of
the City on May l, 2012, regarding abatement of property taxes on the Developme��t Property.
"Certificate of Completion" means the certiFcation provided to the Developer, or the purchaser of
any part, parcel or unit of the Development Property, pursuant to Section 4.4 of this Agreement.
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399867v3 JAE SH235-20
"Commercial Improvements" means any improvements constructed upon a parcel within the
Commercial Property.
"Commercial Property" means the property so described in Schedule B attached hereto.
"Construction Plans" means the plans, specifications, drawings and related documents on the
construction work to be performed by the Developer on the Development Property, including the
Minim�un Improvements and the related site improvements, which (a) shall be as detailed as the plans,
specifications, drawings and related documents which are submitted to the appropriate building officials
of the City, and (b) shall include at least the following: (1) site plan; (2) foundation plan; (3) basement
plans; (4)floor plan for each floor; (5)cross sections of each (length and width); (6) elevations (all sides);
(7) la��dscape plan; and (8) such other plans or supplements to the foregoing plans as the City may
reasonably request to allow it to ascertain the nature and quality of the proposed construction work.
"County" means the County of Scott, Minnesota.
"County Tax Abatement" �neans the real property taxes (i) generated in any tax-payable year by
extending the County's local tax rate against the tax capacity of the Minimum Improvements (excludii�g
land and excluding any portion of the tax capacity attributable to the areawide tax under Minnesota
Statutes, Chapter 473F)as of January 2 in the prior year, and (ii) paid to the City by the County.
"County Abatement Resolution" means Resolution No. 2012-_, adopted by the Board of
Commissioners of the Cou��ty on May 8, 2012, regarding abatement of property taxes on the
Development Property.
"Developer" means Bridgewater, LLC, a Min��esota limited liability company, or its permitted
successors and assigns.
"Development Property" means the real property described in Schedule A of this Agreement.
"Event of Default" means an action by the Developer listed in Article IX of this Agreement.
"Existing Assessine►�ts" means the special assessments levied against the Cominercial Property, the
Business Park Property (ii�cluding the Developinent Property) and the Residential Property to finance
improvements to County Roads 83 a�1d ]6 adjacent to such property. The Existing Assessments were
payable in annual installments through 2012 and have been paid in full.
"Holder" means the owner of a Mortgage.
"Master Development Agreement" means the Master Development Agreement, dated
December 9,2003, between the City and Ryan Companies US, Inc., as the same may be from time to time
►nodified,amended,or supplemented.
"Master Development Abatement" means the real property taxes (i) generated in any tax-payable
year by extending the City's local tax rate against the tax capacity of the Commercial Improvements on
each parcel of the Commercial Property (excluding land and excluding any portion of the tax capacity
attributable to the area-wide tax under Minnesota Statutes, Chapter 473F) as of January 2 in the prior
year, and (ii) paid to the City by the County.
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399867v3 JAE SH235-20
"Master Development Abatement Resolution" means Resolution No. 5981 approved by the City
Council of the City on December 9, 2003, regarding the Abatement of property taxes on the Commercial
Property. �
"Maturity Date" ineans the date that the Note has been paid in full or terminated, whichever is
earlier.
"Minimum Improvements" means the construction on the Development Property of an
approximately 130,000 square feet warehouse and manufacturing facility, with office space, as more fully
described in Section 3.4(a).
"Mortgage" means any mortgage made by the Developer which is secured, in whole or i�� part,
with the Developinent Property and which is a permitted e��cumbra��ce pursuant to the provisions of
Article VIII of this Agreement.
"New Assessments" means the special assessments levied against the Commercial Property, the
Business Park Property (including the Development Property) ai�d the Residential Property to finance
infrastructure improvements, including roads, sanitary sewer, water, and storm water improvements. The
New Assessments are payable in aunual installments through 2024.
"Note" means the Taxable Limited Revenue Note, substantially in the form attached as Schedule
D to this Agreement,to be issued by the City to the Developer.
"Payinent Date" means each February 1 and August 1, commencing August 1 in the first taxes
payable year af�er the County assessor's market value of the Developme��t Properly reflects the completed
Mii�imum Improvemei�ts; provided that if any such Payment Date is not a Business Day, the Payment Date
shall be the next succeeding Business Day.
"Project" means the Development Property as improved with the Minimum Improvements.
"Residential Property" means the property so described in Schedule B attached hereto.
"State" means the State of Minnesota.
"Tax Official" means a��y County assessor; County auditor; County or State board of
equalization, the commissioner of revenue of the State, or any State or federal district court, the tax court
of the State, or the State Supreme Court.
"Tenant" �neans Trystar, Inc. a Mi��nesota corporation, or its permitted successors and assigns,
that will operate the Minimum Improvements following the construction of the Minimum Improvements
by the Developer.
"Transfer" has the meaning set forth in Section 82(a) hereof.
"Unavoidable Delays" means delays beyond the reasonable control of the party seeking to be
excused as a result thereof which are the direct result of strikes, other labor troubles, prolonged adverse
weather or acts of God, fire or other casualty to the Minimum Improvei��ents, litigation commenced by
third parties which, by injunction or other similar judicial action, directly results in delays, or acts of any
federal, state or local governmental unit (other than the City in exercising their rights under this
Agreement) which directly result in delays. Unavoidable Delays shall not include delays in the
Developer's obtaining of permits or governmental approvals necessary to enable construction of the
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399867v3 JAE SH235-20
Minimum Improvements by the dates such construction is required under Section 4.3 of this Agreement,
so long as the Construction Plans have been approved in accordance with Section 4.2 hereof.
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399867v3 JAE SH235-20
ARTICLE II
Representations and Warranties
Section 2.1. Representations by the CitX. The City makes the following representations and
warranties as the basis for its covenants hereii�:
(a) The City is a statutory city duly orgai�ized ai�d existing under the laws of the State.
Under the provisions of the Act, the City has the power to enter into this Agreement and carry out its
obligations hereunder.
(b) The City proposes to grant abatement of taxes on the Developme��t Property and the
Minimum Improvements thereon, for the purposes of increasing the tax base and creating employment
opportunities within the City.
Section 2.2 Representations by the CountX. The County makes the following representations and
warranties as the basis for its covenants herein:
(a) The County is a political subdivision of the State, duly organized and existing under the
laws of the State. Under the provisioi�s of the Act, the County has the power to enter into this Agreement
and carry out its obligations hereunder.
(b) The County proposes to grant abatement of taxes on the Development Property and the
Minimum Improvements thereon, for the purposes of increasing the tax base and creating employment
opportunities within the City.
Section 2.3. Representations and Warranties by the Developer. The Developer makes the
following representations and warranties as the basis for its cove��ants herein:
(a) The Developer is a limited liability co►npany, duly organized and in good standing under
the laws of the State, is not in violation of any provisions of its articles of organization or its operating
agreement, is duly authorized to transact business within the State, has power to enter into this Agreement
and has duly authorized the execution, delivery and performa�lce of this Agreement by proper action of its
officers.
(b) The Developer will construct the Minimum Improvements and cause the Minimum
linprovements to be operated and maintained in accordance with the terms of this Agreement and all
local, state a��d 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 cominunication from any local, state or federal
official that tlle activities of the Developer with respect to the Minimum Improvements may be or will be
in violation of any environmental law or regulation (other than those notices or co�nmunications of which
the City is aware). The Developer is aware of no facts the existence of which would cause it to be in
violation of or give any person a valid claim under any local, state or federal environmental law,
regulation or review procedure with respect to the Minimum Improvements.
(d) The Developer will construct the Minimum Improvements in accordance with all local,
state or federal energy-conservation laws or regulations.
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399867v3 JAE SH23�-20
(e) The Developer will obtain, in a timely manner, all required perinits, licenses and
approvals, and will meet, in a timely manner, all requireme��ts of all applicable local, state and federal
laws and regulations which must be obtained or met before the Minimum Improvements may be lawfully
constructed.
(tj Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated l�ereby, nor the fulfillment of or compliance with the terms and conditions of
tl�is Agreement is prevented, limited by or conflicts with or resufts in a breach of, the terms, conditions or
provisions of any corporate restriction or any evidences of indebtedness, agreement or instrument of
whatever i�ature to wllich the Developer is now a party or by which it is bou��d, or constitutes a default
under any of the foregoing, which default or breach might prevent the Developer from performing its
obligatioi�s under this Agreement.
(g) The Developer shall promptly advise the City and the County in writing of all litigation
or claims affecting any part of the Minimum lmprovements and all written complaints and charges made
by any governmental authority materially affecting the Minimum Improvements or materially affecting
the Developer or its business which may delay or require changes in construction of the Minimum
Improvements thro�igh the date of the Certificate of Completio��.
(h) The Developer is not in default under any business subsidy agreement pursuant to
Mii�nesota Statutes, Section 116J.994.
Section 2.4. Re�resentations and Warranties of Tenant.
(a) The Tenant is a corporation, duly organized and in good standing under the laws of the
State, is not in violation of any provisions of its articles of incorporation and bylaws, is duly authorized to
transact business within the State, has power to enter into this Agreement and has duly authorized the
execution, delivery and performance of this Agreement by proper action of its officers.
(b) The Tenant will operate and maintain the Minimum Improvements in accordance with
the terms of this Agree�nent and all local, state and federal laws and regulations (including, but not
limited to, environmental, zoning, building code and public health laws and regulations).
(c) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of
this Agreeir�ent is prevented, limited by or conflicts with or results in a breach of, the terms, conditions or
provisio�ls of any corporate restriction or any evidences of indebtedness, agreement or instrument of
whatever nature to which the Tenant is now a party or by which it is bound, or constitutes a default under
any of the foregoing, whicll default or breach might prevent the Tenant from performing its obligations
under this Agreement.
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399867v3 JAE SH235-20
ARTICLE III
Property Tax Abatement
Section 3.1. Status of Development PropertY. As of the date of this Agreement,the Developer has
entered into a purchase agreemei�t to acquire the Development Property (the"Purchase Agreement"). Upon
closing of its purchase of the property and construction of the Project, Developer, as owner of the
Development Property, will enter into a long-term lease agreement with the Tenant to lease the Development
Properiy and the Te��ant will operate the Minimum Improvements. Neither the City nor tlie County shall
have any obligation to acquire the Development Property or any portion thereof.
Section 3.2. Environmental Conditions. (a) The Developer acknowledges that ��either the City nor
the County make any representations or warranties as to the condition of the soils on the Development
Property or the fimess of the Development Property for construction of the Minimum Improvements or any
other purpose for which the Developer may make use of such property, and that the assistance provided to the
Developer under this Agreement ��either implies any responsibility by the City or the County for any
conta�nii�ation of the Development Property nor imposes any obligation on such parties to participate in any
cleanup of the Development Property.
(b) Without limiting its obligations under Section 8.3 of this Agreement the Developer further
agrees that it will indem��ify, defend, and hold harmless the City, the County, and their governing body
members, officers, and employees, from any claims or actions arising out of the presence, if any, of
hazardous wastes or pollutants existii�g on or in the Development Property, unless and to the extent that such
hazardous wastes or pollutants are present as a result of the actions or omissions of the indemnitees. Nothing
in this section will be construed to limit or affect any liinitations on liability of the City or County under State
or federal law, including without limitation Minnesota Statutes Sections 466.04 and 604.02.
Section 3.3. Master Development A�reement Abatement for Infrastructure. (a) Generally.
Pursuant to the Master Development Agreement executed by the City and Ryan Companies US, Inc., the
prior owner of the Development Property, the City agreed to provide assistance pursuant to the Act to
individual developers that purchase and develop parcels within the Business Park Properly, depending on
certain conditions precedent delineated in the Master Development Agreement. The Development
Property is located within the Business Park Property.
The Development Property is currently encumbered with special assessments for various
ii�frastructure improvements, as specified in Section 33(c) below. The City has determined tllat, in order
to facilitate development of the Development Property, the City will retain Master Development
Agreement Abatements from the Commercial Property pursuant to the Act, a��d will apply those Master
Development Agreement Abate►nents to pay a portion of assessments for infrastructure levied or to be
levied against the Development Property, all as described in more detail in the Master Development
Agreement and in the Master Development Agreement Abatement Resolution.
(b) Master Development Agreenzent Abatement Eligibiliry. The Developer is eligible to
receive Master Development Agreement Abatement assistance pursuant to the criteria delineated in
Section 4.2 of the Master Development Agreement for the following reasons:
(i) the Development Property will be used for manufacturing, warehouse, and office use;
(ii) the estimated market value of the Minimum Improvements for property tax purposes is at
least $50.00 per square foot (which is a market value that is at least $25 per square foot, adjusted by the
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399867v3 JAE SH235-20
percentage increase in aggregate commercial property values in the City from January 2, 2003 to January
2, 2011); and
(iii) the City has determined that the number of jobs the Developer has covenanted to cause to
create at the Minimum Iinprovements (80 jobs, including 55 jobs relocated from another city and 25 new
jobs with average wages that are at least 275% of the federal minimum wage) is sufficient to grant the
Master Development Agreement Abatement. [t is the intent of the Tenant to begin hiring employees for
the 25 new jobs to be located in the City prior to the completion of construction of the Minimum
Improvements so that the new employees can be trained at the Tenant's existing location and begin
working at the Miniinu�n Improvements as soon as it is completed. These jobs shall be considered part of
the 25 new jobs to be created in the City. The City has detennined it is appropriate to deviate from tl�e
job requirements found in Section 4.2 of the Master Development Agreement because the development
proposed pursuant to this Agreement involves a facility with a nearly equal split between manufacturing
space and warehouse space, and a large portion ofthe manufacturing space within the proposed Minimum
Improvements will utilize a significant amount of automated manufacturing processes because of the
technological nature of the products being manufactured by the Tenant. Therefore, fewer jobs are
necessary for the manufacturing to be completed at the Minimum Improvements.
(c) Existing Assessments. Prior to the date of the Master Developmei�t Agreement, the City
levied special assessments against the Assessed Property to finance improvements to County Roads 83
and 16 adjacent to the Assessed Property. The Existing Assessments levied against the Development
Property were paid in full in 2012.
(d) New Assessn7ents. The New Assessments levied a�ainst the Development Property (for
taxes payable in 2013 and thereafter) are in the aggregate principal amount of $410,307.62 and are
payable in annual installments through 2024.
(e) Terms of Master Development Agreement Abatement. The City will retain Master
Development Agreement Abatements from each parce( of the Commercial Property in accordance with
Article V of the Master Development Agreement a��d the Master Development Agreement Abatement
Resolution and will apply such Master Development Agreement Abatements pursuant to Sectio�� 3.3(g).
The term of the Master Development Agreement Abate�nent for each parcel is 15 years, commencing
with the first tax-payable year after substantial completion of commercial improvements on that parcel.
The Master Develop►nent Agreement Abatements for each parcel tenninate on the earlier of(i) the date
all Existing Assessments and New Assessments against the entire Business Park Property have been paid
in full, or (ii) after the 15'�' year of collection of Master Development Agreement Abatements from that
Parcel.
(� Applicatiorr of Master Development Agreen7errt Abatements. The City will receive
Master Development Agreement Abatements semi-annually from the County along with the property tax
settlement, and will apply such amounts to pay the next installment of principal and interest on the New
Assessments against the Developmei�t Property. Master Development Agreeme��t Abatements will be
applied pro rata to the outstanding New Assessments against each parcel of the Business Park Property,
including the Development Property. As soon as reasonably practicable after each semi-annual tax
settlement date, the City will calculate the total Master Development Agreement Abatements from all
parcels of the Commercial Property, and will allocate the amount to be applied toward New Assessments
against the Development Property. The City will pay the Master Development Agreement Abatements to
the Co�inty on or before the next property tax pay�nent date (May 15 or October 15, as the case may be),
and will specify to the County the amounts allocated toward the assessments agai��st the Development
Property. At least 30 days before such property tax payment date, the City will send the Developer a
written notice specifying the Master Development Agreement Abatement amounts to be paid by the City
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399867v3 JAE SH235-20
for the Development Property and the balance to be paid by the Developer. Notwithstanding such notice
requirement, the Developer and its successors or assigns remains obligated to pay the full installment of
New Assessments due on any tax payment date unless and until the Developer receives actual notice of
the portion paid by the City under this Section.
(g) Limitations. The maximum Master Development Agreement Abatement applied toward
New Assess�nents in any calendar year will not exceed the lesser of(i) 25% of the amount equal to the
City's Abatement Capacity for that year; or(ii) the aggregate installment of New Assessments against the
entire Business Park Property due in that year. [f the Act is amended to i�lcrease the City's Abatement
Capacity, the percentage of Abatement Capacity in clause (i) will be reduced proportionately, and if the
Act is ame��ded to reduce the City's Abatement Capacity, the percentage of Abatement Capaciry in clause
(i) will be increased proportionately. The City's obligation under this section is payable solely from and
� to the extent of the Master Development Agreement Abatements, and notlling herein shall be construed to
obligate the City to make payments from any other funds. The City makes no warranties or
representations as to the amount of the Master Development Agreement Abatements, or that amounts
payable under this Section will be sufficient to pay all or any portion of the New Assessments against the
Development Property. Any esti�nates of Master Development Agreement Abatement amounts prepared
by the City's financial consultants are for reference only, and the Developer is not entitled to rely on such
estimates. The City represents that there are no o�itstanding abatement agreements or resolutio��s granted
by the City under the Act as of the date of this Agreement except the abatements granted under the Master
Development Agree►nent, which will be provided to all individual developers on a pro rata basis. The
City shall allocate the Master Development Agreement Abatement to the individual developers on a pro
rata basis based on the amount of New Assessments payable by the individual developer compared to the
total amount of New Assessments payable by all owners of the Business Park Property. The City may
grant any other abateme��ts permitted under the Act, provided that to the extent the total abatements in any
year exceed the maximum annual Master Development Agreement Abatement under the Master
Development Agreement, the allocation of City Abatement Capacity to such other abatements is
subordinate to the Abatements under the Master Develop�nent Agreement.
Section 3.4. Development Property Tax Abatement.
(a) Minimum Improvements. The Developer has covenanted to construct tl�e Minimum
Improvements on the Development Property. The Minimum Improvements consists of an approximately
130,000 square feet warehouse and manufacturing facility, with office space. The Mi��imum Improvements
are expected to include approxiinately 26,000 square feet of assembly manufacturing, approximately 34,000
square feet of extrusion manufacturing, approximately 21,000 square feet of related office space, and
approximately 47,000 square feet of warehouse space.
(b) Development Property Abate�nent, Generally. In order to make development of the
Project economically feasible, the City will issue the Note to the Developer in the principal amount of
$1,055,000 in substantially the form attached hereto as Schedule D. The Note shall be secured solely by
Available Abatement, and the City and County each pledge City Tax Abatement ai�d County Tax
Abatement, respectively, to the debt service fund for the Note. The Note shall not bear interest. The
principal amou��t of the Note shall be paid on each Payment Date. Payments of principal on the Note
shall commence on August 1 in the first taxes payable year after the County assessor's market value of
the Development Property reflects the completed Minimum Improvements.
(c) Limitations. The pledge of Available Abatement to the Note is subject to all the terms
and conditions of the City Abatement Resolution and the County Abatement Resolution. The Note is
payable solely from and to the extent of the City Tax Abatement and County Tax Abatement,
respectively, and nothing herein shall be co��strued to obligate the City or County to make payments from
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399867v3 JAE SH235-20
any other funds. The City and County make no warranties or representations as to the amount of the
Available Abatement, or that ainounts payable on the Note will be sufficient to pay all or any portion of
the pri►�cipal amount. Any estimates of Available Abatement amounts prepared by the City's financial
consultants are for the benefit of the City only; and the Developer is not entitled to rely on such estimates.
The Developer further acknowledges that the total property tax abatements payable by the City in
any year may not exceed the City's Abatement Capacity; and that the total property tax abatements
payable by the County in any year may not exceed the County's Abatement Capacity. Neither the City
nor the County warrants or represents that the City Tax Abatements or County Tax Abatements in the
amounts pledged to the Note will be within the City's or County's Abatement Capacity. The City
represents that it has not granted any other abatement under the Act that is ongoing as of the date of this
Ageement other than the Master Development Agreement Abatement. The City Tax Abatement is
subordinate to the Master Development Agreement Abatement. The City agrees that if the City grants
any additional abatements under the Act, the City's Abatement Capacity will be allocated first to the
Master Developmei�t Agreement Abatement and second to the City Tax Abateme��t pledged to the Note.
The County has not granted other abatements under the Act that are ongoing as of the date of this
Agreement. If the County grants a��y additional abatements under the Act, the County will pay the
County Tax Abatement pledged to the Note prior to any additional abatements granted after the date of
this Agreement.
(d) Delivery. The Note shall be delivered by the City to the Developer upon execution of
this Agreement. The parties agree that consideration for delivery of the Note is Developer's obligation to
complete the Project and meet the business subsidy goals in accordance with Section 3.7 of this
Agreement. In the evei�t of any inconsistency between the terms of this Agreement and the terms of the
Note, the terms of the Note shall control.
Section 3.5. Payment of Administrative Costs. The Developer will pay to the City all out of
pocket costs incurred by the City and the County (including without limitation attorney and fiscal
consultant fees) in the negotiation a��d preparation of this Agreement and other documents and
agreements in connection with the development contemplated hereunder (collectively, the
"Administrative Costs"). Administrative Costs shall be evidenced by invoices, statements or other
reasonable written evidence of the costs incurred by the City or Cow�ty. The Developer shall pay
Administrative Costs from time to time within 30 days after receipt of written notice thereof from the
City. The City shall transfer to the County any portion of Administrative Costs attributable to the County
promptly upon receipt of payment from the Developer.
Section 3.6. Records. The City, the County and their respective representatives shall have the
right at all reasonable times after reasonable notice to inspect, examine and copy all books and records of
Developer relating to the Project. Developer shall also use its best efforts to cause the co��tractor or
contractors, all sub-contractors ai�d their agents and lenders to make their books and records relating to
the Project available to City, upon reasonable notice, for inspection, examination and audit. Such records
shall be kept and maintained by Developer until the Maturity Date.
Section 3.7. Business Subsid��reement. The provisions of this Section constitute the
"business subsidy agreement" in connection with the business subsidy provided by both the City and the
County for the purposes of Mi��nesota Statutes Section 116J.993 to 116J.995 (the `Business Subsidy
Act").
(a) General Terms. The parties agree and represent to each other as follows:
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399867v3 J�E SH235-20
(1) The subsidy provided to the Developer under this Agreement consists of
payments on the Note, payable from the City Tax Abatement and the County Tax
Abatement, which payments represent a forgivable loan that is repayable by the
Developer in accordance with this Section. No portion of the business subsidy is tax
increment financing.
(2) The public purposes of the subsidy are to provide employment
opportunities and increase the tax base of the City and the County.
(3) The goals for the subsidy are: to secure development of the Minimum
Improvements; to maintain the Minim�im Improvements as a manufacturing and
warehouse facility for at least five years as described in clause (6) below; and to create
the jobs and wage levels in accordance with Section 3.7(b)hereof.
(4) If the goals described in clause(3) are not met, the Developer must make
the payments to the City described in Section 3.7(c).
(5) The subsidy is needed to induce the Developer to cause the Tenant to
relocate its operations to the City, thus preserving and enhancing job and tax base growth
for the City, County and the State as a whole. The Tenant operates an existing facility in
the State at a site that cannot accommodate expansion. Absent the subsidy provided in
this Agreement, the expansion would likely occur in another city.
(6) The Developer must cause the Tenai�t to coi�tii�ue operation of the
Miniinum Improvements as a manufacturi��g and warehouse facility for at least five years
after the date of issuance of the Certificate of Completion.
(7) The Developer does not have a parent corporation.
(8) The Developer has not received, and does not expect to receive financial
assistance from any other"grantor" as defined in the Business Subsidy Act, in connection
with the Development Property or the Minimum Improvements.
(b) Job and Wage Goals. Within two years after the date of issuance of the certificate of
completion of the Minimum Improvements (the "Compliance Date"), the Developer shall cause to be
created at least 80 new full-time eq�iivalent jobs on the Development Property (including 55 jobs
relocated to the City and 25 newly created jobs) and shall cause the average wages for all employees on
the Development Property to be no less than 275% of the federal minimum wage, exclusive of benefits. It
is the intent of the Tenant to begin hiring employees for the 25 new jobs to be located in tlle City prior to
the completion of construction of the Minimum Improvements so that the new employees can be trained
at the Tenant's existing location and begin working at the Minimum [mprovements as soon as it is
completed. These jobs shall be considered part of the 25 new jobs to be created in the City.
Notwithsta��dii�g anything to the contrary herein, if the wage and job goals described in this paragraph are
met by the Compliance Date, those goals are deemed satisfied despite the Developer's continuing
obligations under Sections 3.7(a)(6) ai�d 3.7(d). The City and County may, after public hearings held by
both the City Council and County Board of Commissioners and approval by both bodies, extend the
Compliance Date by up to one year, provided that nothii�g in this sectio�� will be construed to limit the
City's or County's legislative discretio�� regarding this matter.
(c) Remedies. If the Developer fails to meet the goals described in Section 3.7(a)(3), the
Note and this Agreement will be deemed terminated, and the Developer shall repay to the City upon
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399867v3 JAE SH23�-20
written demand from the City a "pro rata share" of prior payments under the Note, if any, together with
interest on such amounts at the implicit price deflator as defi��ed in Sectioi� 116J.994, subd. 6 of the
Business Subsidy Act, accrued from the date of each payment made on the Note to the date of repayment.
The term "pro rata share"means percentages calculated as follows:
(i) if the failure relates to the number of jobs, the jobs required less the jobs created,
divided by the jobs required;
(ii) if the failure relates to wages,the number of jobs required less the i�u�nber of jobs
that meet the required wages, divided by the i�uinber of jobs required;
(iii) if the failure relates to maintenance of the manufacturing facility in accordance
with Section 3.7(a)(6), 60 less the number of months of operation as a manufacturing facility
(where any month in which the facility is in operation for at least l5 days constitutes a month of
operation), commencing on the date of the certificate of completion and ending with the date the
facility ceases operation as determined by the City, divided by 60; and
(iv) if more than one of clauses (i) through (iii) apply, the su�n of the applicable
percei�tages, not to exceed 100%.
Any amounts received under this Section by the City shall be distributed between the City and the
County based on the pro rata amounts of City Tax Abatement and County Tax Abatement that have been
paid to Developer or its assigns as payments of principal under the Note. Promptly upon receipt of any
repayment by the Developer, the City will remit to the County a��y amount attributable to County Tax
Abatements. Nothing in this Sectioi� shall be construed to limit the City's or County's remedies under
Article [X hereof. In additioi� to the remedy described in this Section and any other remedy available to
the City or County for failure to meet the goals stated in Section 3.7(a)(3), the Developer agrees and
understands that it may not a receive a business subsidy from the City, the County or any other grantor(as
defined in the Business Subsidy Act) for a period of five years from the date of the failure or until the
Developer satisfies its repayment obligation under this Section, whichever occurs first.
(d) Reports. The Developer must cause the Tenant to submit to the City, with a copy to the
County, a written report regarding business subsidy goals and results by no later than March 1 of each
year, commencing March 1, 2013 and continuing until the later of(i) the date the goals stated in Section
3.7 (a)(3) are met; (ii) 30 days after expiration of the five-year period described in Section 3.7(a)(6); or
(iii) if the goals are not met, the date the subsidy is repaid in accordance with Section 3.7(c). The report
must comply with Section 1 16J.994, subdivision 7 of the Business Subsidy Act. The City will provide
informatioi� to the Developer regarding the required forms. If the Developer fails to timely file any report
required under this Section, the City will mail the Developer a warning within one week after the required
filing date. If, after 14 days of the postmarked date of the warning, the Developer fails to provide a
report, the Developer must pay to the City a penalty of$100 for each subsequent day until the report is
filed. The maximum aggregate penalty payable under this Section $1,000. The City agrees with the
County that the City will file, oi� behalf of both entities, any reports required to be filed with the State
under the Business Subsidy Act.
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399867v3 JAE SH235-20
ARTICLE IV
Construction of Minimum Improvements
Section 4.1. Construction of Lr�provements. The Developer agrees that it will construct the
Mi��imum I►nprovements on the Development Property in accordance with the approved Construction
Plans and at all times prior to the Maturity Date will cause the Tenant to operate, maintain, preserve and
keep the Minimum Improvements with the appurtenances and every part and parcel thereof, in good
repair and condition. The City and the County shall have no obligation to operate or maintain the
Minimum Improvements.
Section 4.2. Construction Plans.
(a) Before commencement of constructio�� of the Minimum [mprove�nents, the Developer
shall submit to the City the Construction Plans. The Construction Plans shall provide for the construction
of the Minimum Improvements and shall be in conformity with this Agreement, and all applicable State
and local laws and regulations. The City will approve the Construction Plans in writing if: (i) the
Construction Plans conform to the terms and conditions of this Agreement; (ii) the Construction Plans
conform to all applicable federal, state and local laws, ordinances, rules and regulations; (iii) the
Construction Plans are adequate to provide for construction of the Minimum Improvements; (iv) the
Construction Plans do not provide for expenditures in excess of the funds available to the Developer from
all sources for construction of the Minimu►n Improvements; a�ld (v) no Event of Default has occurred.
Approval may be based upon a review by the City's Building Official of the Construction Plans.
No approval by the City shall relieve the Developer of the obligation to comply with the terms of this
Agreement, applicable federal, state and local laws, ordinai�ces, rules and regulations, or to construct the
Minimum ]mprovements in accordance therewith. No approval by the City shall constitute a waiver of an
Event of Default. If approval of the Construction Plans is requested by the Developer in writing at the
time of submission, such Construction Plans shall be deemed approved unless rejected in writing by the
City, in whole or in part within 20 days after the date of their receipt by the City. Such rejections shall set
forth in detail the reasons therefore, and shall be made within 20 days after the date of their receipt by the
City. If the City rejects any Construction Plans in whole or in part, the Developer shall submit new or
corrected Coi�struction Pla��s within 20 days after its receipt of writte�� notification to the Developer of the
rejection. The provisions of this Section relating to approval, rejection and resubmission of corrected
Co��struction Plans shall continue to apply until the Construction Plans have bee�� approved by the City.
The City's approval shall not be unreasonably withheld. Said approval shall constitute a conclusive
determination that the Coi�struction Plans (and the Minimum Improvements constructed in accordance
with said plans)coinply to the City's satisfaction with the provisions of this Agreement relating thereto.
(b) If the Developer desires to make any material change in the Construction Plans after their
approval by the City, the Developer shall submit the proposed change to the City for its approval. For the
purposes of this Section, the term "material" means any change that increases or decreases the total cost
of the Minimum Improvements by $1,000,000 or more. If the Construction Plans, as modified by the
proposed change, conform to the requirements of this Section 4.2 of this Agreement with respect to such
previously approved Construction Plans, the City shall approve the proposed change and notify the
Developer in writing of its approval within 20 days after the date of their receipt by the City. Such
change in the Construction Plans shall, in any event, be deemed approved by the City unless rejected, in
whole or in part, by written notice by the City to the Developer, setting forth in detail the reaso��s therefor.
Such rejection shall be made within 20 days after receipt of the notice of such change. The City's
approval of any such change in the Construction Plans will not be unreasonably withheld.
14
399867v3 JAG SH235-20
(c) The approval of Co��struction Plans by the City under this Section 4.2 is for the purposes
of this Agreement only. The Developer must also obtain any approvals necessitated by the City's
planning and zoning requirements. The Coui�ty has no responsibility with respect to approving
Construction Plans or any other require���ents of this Section.
Section 43. Commencement and Completion of Construction. Subject to Unavoidable Delays,
the Developer shall commence construction of the Minimum Improvements by July l, 2013. Subject to
Unavoidable Delays, the Developer shall complete the construction of the Minimum Improvements by
July l, 2015. All work with respect to the Minimum Improvements to be constructed or provided by the
Developer on the Development Property shall be in conformity with the Construction Plans as submitted
by the Developer ai�d approved by the City. If the commence�nent or completion of the construction of
the Minimum Improvements is delayed past the dates set forth in this Section 4.3, such failure to
commence or complete the Minimum Improvements shall not be considered an Event of Default under
this Agreement; provided, however, if the construction of the Minimum Improvements is not completed
by July l, 2015, this shall result in the decrease of the term of the City Tax Abatement and the County
Tax Abatement by one year for each full year following July l, 2015 that the construction of the
Minimum Improvements is not completed.
The Developer agrees for itself, its successors and assigns, and every successor in interest to the
Development Property, or any part thereof, that the Developer, and such successors and assigns, shall
promptly begin and diligently prosecute to completion the development of the Development Property
through the construction of the Miniinu�n Improve�nents thereon, and that such co��struction shall in any
event be commenced and completed within the period specified in this Section 4.3 of this Agreement.
After the date of this Agreement and until construction of the Minimum Improvements has been
completed, the Developer shall make reports, in such detail and at such times as may reasonably be
requested by the City, as to the actual progress of the Developer with respect to such construction.
Section 4.4. Certificate of Com�letion.
(a) Promptly after completion of the Minimum Improvements in accordance with those
provisions of the Agreement relating solely to the obligations of the Developer to construct the Minimum
Improvements (including the dates for beginning and completion thereo�, the City will furnish the
Developer with a Certificate shown as Schedule C and shall forward a copy of such Certificate to the
County. Such certification and such determination shall not constitute evidence of compliance with or
satisfaction of any obligation of the Developer to any Holder of a Mortgage, or any insurer of a Mortgage,
securing money loaned to finance the Minimum Improvements, or any part thereof.
(b) If the City shall refuse or fail to provide any certification in accordance with the
provisions of this Section 4.4 of this Agreement, the City shall, withii� thirty (30) days after written
request by the Developer, provide the Developer with a written statement, indicating in adequate detail in
what respects the Developer has failed to complete the Mini�num Improvements in accordance with the
provisions of the Agreement, or is otherwise in default, and what measures or acts it will be necessary, in
the reasonable opinion of the City, for the Developer to take or perform in order to obtain such
certification.
(The remainder of this page is i��tentioi�ally left blank.)
15
399867v3 JAE SH235-20
ARTICLE V
Insurance and Condemnation
Section 5.1. [nsurance.
(a) The Developer will provide and maintain at all times during the process of constructing
the Minimum Improvements an All Risk Broad Form Basis Insurance Policy and, from time to time
during that period, at the request of the City, furnish the City with proof of payment of premiums on
policies covering the following:
(i) builder's risk insurance, written on the so-called `Builder's Risk -- Completed
Value Basis," in an amount equal to one hundred percent (100%) of the insurable value of the
Minimum Improvements at the date of completion, and with coverage available in nonreporting
form on the so-called "all risk" form of policy. The interest of the City shall be protected in
accordance with a clause in form and content satisfactory to the City;
(ii) comprehei�sive general liability insurance (including operations, contingent
liability, operations of subcontractors, completed operations and contractual liability insurance)
together with an Owner's Protective Liability Policy with li�nits against bodily injury and
property damage of not less than $1,000,000 for each occurrence (to accomplish the above-
required limits, an umbrella excess liability policy may be used). The City shall be listed as an
additional insured on the policy; and
(iii) workers' compensation insurance, with statutory coverage, provided that the
Developer may be self-insured with respect to all or any part of its liability for workers'
compensatio��.
(b) Upoi� completion of construction of the Minimum Improvements and prior to the
Maturity Date, the Developer shall mai��taii�, or cause to be maintained, at its cost and expense, and from
time to time at the request of the City shall furnish proof of the payment of premiums on, insurance as
follows:
(i) Insurance against loss and/or damage to the Minimum Improvements under a
policy or policies covering such risks as are ordinarily insured against by similar businesses.
(ii) Co�nprehensive general public liability insurance, including personal injury
liability (with employee exclusion deleted), against liability for injuries to persons and/or
property, in the minimum amount for each occurrence and for each year of$1,000,000, and shall
be endorsed to show the City as additional insured.
(iii) Such other insurance, including workers' compensation insurance respecting all
employees of the Developer, in such amount as is customarily carried by like organizations
engaged in like activities of comparable size and liability exposure; provided that the Developer
may be self-insured with respect to all or any part of its liability for workers' compensation.
(c) All insurance required in Article V of this Agreement shall be taken out and maintained
in responsible insurance companies selected by the Developer or the Tenant whicl� are authorized under
the laws of the State to assume the risks covered thereby. Upon request, the Developer will deposit or
cause to be deposited annually with the City policies evidencing all such insurance, or a certificate or
16
399867v3 JAE SH235-20
certificates or binders of the respective insurers stating that such insurance is in force and effect. In lieu
of separate policies, the Developer may maintain or cause to be maintained a single policy, blanket or
umbrella policies, or a combination thereof, having the coverage required herein, in which event the
Developer shall deposit with the City a certificate or certificates of the respective insurers as to the
amount of coverage in force upon the Minimum Improvements.
(d) The Developer will notify the City and the County promptly in the case of damage
exceeding $1,000,000 in amount to, or destruction of, the Minimum Improvements or any portion thereof
resulting from fire or other casualty. I�� s�ich event the Developer will promptly repair, reconstruct and
� restore the Minimum Improvements to substa��tially the same or an improved condition or value as it
existed prior to the event causing such damage, or with modifications to the Minimum Improvements that
are approved by the City and the County in writing, and, to the exte��t necessary to accomplish such
repair, reconstruction and restoration, the Developer will appfy the net proceeds of any insurance relating
to such damage received by the Developer to the payment or reimbursement of the costs thereo£ A
request to the City and the County to approve modifications to the Minimum Improvements prior to
repair, reconstruction or restoration of the Minimum Improvements shall not be unreasonably withheld.
The Developer shall complete the repair, reconstruction and restoration of the Minimum
Improvements, whether or not the net proceeds of insurance received by the Developer for such purposes
are sufficient to pay for the same. Any net proceeds remaining after completion of such repairs,
co��struction and restoration shall be the property of the Developer.
A failure to promptly repair, reconstruct and restore the Minimum Improvements as required by
this Section 5.1(d) will be considered an Event of Default under this Agreemei�t and the City and/or the
County may suspend payments on the Note or exercise any other remedies provided in Section 9.2 hereof.
(e) All of the insurance provisions set fortl� in this Article V shall terminate upon the
termination of this Agreement.
Section 5.2. Subordination. Notwithstandi►�g anything to the co►�trary herei��, the rigllts of the
City and the County with respect to the receipt ai�d application of any insurance proceeds shall, in all
respects, be subordinate and subject to the rights of any Holder under a Mortgage securing construction or
permanent financing for the Miniinum Improvements.
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17
399867v3 JAE SH235-20
ARTICLE VI
Taxes
Section 6.1. Right to Collect Delinquent Taxes. The Developer acknowledges that the City and
County are providing substantial aid and assistance in furtherance of the Project through issuance of the
Note. The Developer understands that the City Tax Abatement and the County Tax Abatement pledged
to the Note are derived from real estate taxes on the Development Property, which taxes must be promptly
and timely paid. To that end, the Developer agrees for itself, its successors and assigns, that it is also
obligated by reason of this Agreement to pay before delinquency all real estate taxes assessed against the
Development Property and the Minimum Improvements. The Developer acknowledges that this
obligation creates a contractual right on behalf of the City to sue the Developer or its successors and
assigns to collect delinquent real estate taxes and any penalty or interest thereon and to pay over the same
as a tax payment to the County auditor. In any such suit, the City shall also be entitled to recover its
costs, expenses and reasonable attorney fees.
Section 6.2. Reduction of Taxes. Prior to the Maturity Date the Developer will not (a) cause a
reduction in the real property taxes paid in respect of the Development Property through willful
destruction of the Minimum Improvements or any part thereof; (b) fail to reconstruct the Minimum
Improvements if damaged or destroyed, as required under Section 5.1(d) hereof; or(c) convey or transfer
or allow conveyance or transfer of its leasehold interests in the Development Property to any entity that is
exempt from payment of real property taxes under State law. The Developer's failure to comply with this
Section 6.2 shall not be considered an Event of Default hereunder if the Developer pays to the City all of
the City Tax Abatements paid to the Developer as payments on the Note and the Developer pays to the
County all of the County Tax Abatement paid to the Developer as payments on the Note. Following such
repayment of both the City Tax Abatements and the County Tax Abatement, this Agree�nent shall be
term i nated.
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18
399867v3 JAE SH235-20
ARTICLE VII
Financin�
Section 7.1. Financin�. The Developer warrants and represents to the City and the Co�inty that it
has or will have available funds sufficient to construct the Minimum Improvements in accordance with the
Construction Plans.
Section 7.2. Modification; Subordination. If the Developer requires mortgage financing for the
development of the Minimum Improvements, the City and the County agree to subordinate its rights under
this Agreement to the Holder of any Mortgage securi��g constructio�� or permanent financing and the City and
the County agree to consent to such subordination, in accordance with the terms of a subordination agreement
substantially in the form attached as Schedule D,or such other form as the City and the County approve.
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19
399867v3 JAE SH235-20
ARTICLE VIII
Prohibitions Against Assi�nment and Transfer; Indemnification
Section 8.1. Representation as to Development. The Developer's purchase of the Development
Property, and its other undertakings pursuant to the Agreement, are, and will be used, for the purpose of
development of the Development Property and not for speculation in land holding.
Section 8.2. Prohibition Against �Developer's Transfer of Property and Assi�nment of
A�reement. Prior to the issuance of a Certificate of Completion for the Minimum Improvements:
(a) Except only by way of security for, and only 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 making the Minimum 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 transfer in any other mode or form of or with respect to the
Agreement or its leasehold interests in the Development Property or any part thereof or any interest
therein, or any contract or a�reement to do any of the same, to any person or entity whether or not related
ii� any way to the Developer (collectively, a "Trai�sfer"), without the prior written approvaf of the City
unless the Developer re�nains liable and bound by this Development Agreement in which event the City's
approval is not required. Any such Transfer shall be subject to the provisions of this Agreement.
Notwithstanding anything to the contrary in this Section, the Developer may assign its rights under this
Agreement or the Note to the Holder of a Mortgage, provided the Mortgage is approved by the City.
(b) In the evei�t the Developer, upon Transfer of the Development Property or any portion
thereof, seeks to be released from its obligations under this Development Agreement as to the portions of
the Development Property that is transferred or assigned, the City shall be entitled to require, except as
otherwise provided in the Agreement, as conditions to any such release that:
(i) Any proposed transferee shall have the qualifications and financial responsibility,
in the reasonable judgment of tl�e City, necessary and adequate to fulfill the obligations
undertaken in this Agreement by the Developer as to the portion of the Development Property to
be transferred.
(ii) Any proposed transferee, by instrument in writing satisfactory to the City and in
form recordable in the public lai�d records of Scott County, Minnesota, shall, for itself ai�d its
successors and assigns, and expressly for the benefit of the City, have expressly assumed all of
the obligations of the Developer under this Agreement as to the portion of the Development
Property to be transferred and agreed to be subject to all the conditions and restrictions to which
the Developer is subject as to such portion; provided, however, that the fact that any transferee of,
or any other successor in interest whatsoever to, the Development Property, or any part thereof,
shall not, for whatever reason, have assumed such obligations or so agreed, and shall not (unless
and only to the extent otherwise specifically provided in this Agreement or agreed to in writing
by the City) deprive the City of any rights or remedies or controls with respect to the
Development Property or any part thereof or the construction of the Minimum Improvements; it
being the intent of the parties as expressed in this Agreement that (to the fullest extent permitted
at law and in equity and excepting only in the manner and to the extent specifically provided
otherwise in this Agreement) no transfer of, or change with respect to, ownership in the
Development Property ar any part thereof, or any interest therein, however consummated or
20
399867v3 JAE SH23�-20
occurring, and whether voluntary or involuntary, shall operate, legally or practically, to deprive or
limit the City of or with respect to any rights or remedies on controls provided in or resulting
from this Agreement with respect to the Minimum Improvements that the City would have had,
had there been no such transfer or change. In the absence of specific written agreement by the
City to the contrary, no such transfer or approval by the City thereof shall be deemed to relieve
the Developer, or any other party bound in any way by this Agreement or otherwise with respect
to the construction of the Mii�imum Improvements, from any of its obligations with respect
tl�ereto.
(iii) Any and all instruments and other legal documents involved in effecting the
transfer of any interest in this Agreement or the Development Property goveri�ed by this Article
V[II, shall be in a form reasonably satisfactory to the City.
In the event the foregoing conditions are satisfied then the Developer shall be released from its obligation
under this Agreement, as to the portion of the Development Property that is transferred, assigned or
otherwise conveyed. Tlle restrictions under this Section terminate upon issuance of the Certificate of
Completion.
Section 83. Release and Indemnificatioi� Covenants.
(a) The City and the County and the governing body members, officers, agents, servants and
employees thereof(the "Inde�nnified Parties") shall not be liable for and the Developer shall 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 Development Property or the
Minimum Improvements.
(b) Except for any wiliful misrepresentation or any willful or wanton misconduct or
negligence of the Indemnified Parties, and except for any breach by any of the Indemnified Parties of
their obligations under this Agreeme��t, 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 A�reement, or the transactions contemplated hereby or the acquisition, co��struction,
installation, ownership, maintenance and operation of the Development Property or the Minimum
I mprovements.
(c) Except for any willful misrepresentation or any willful or wanton misconduct or
negligence of the Indemnified Parties, the Indemnified Parties shall not be liable for any damage or injury
to the persons or property of the Developer or its officers, agents, servants or employees or any other
person who may be about the Development Property or Minimum Improvements.
(d) All covena��ts, stipulations, promises, agreements and obligations of the City or County
contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations
of such entities and not of any goveri�ing body member, officer, agent, servant or employee of such
entities in the individual capacity thereof.
21
399867v3 JAE SH235-20
ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined. The following shall be "Events of Default" under this
Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreeme��t, any one or
more of the following events:
(a) failure by the Developer to observe or perform any covena��t, condition, obligation or
agreemei�t on its part to be observed ar perfonned hereunder;
(b) commencement by the Holder of any Mortgage on the Developinent Property or any
improve�nents thereon, or any portion thereof, of foreclosure proceedings as a result of default under the
applicable Mortgage documents;
(c) if the Developer shall
(i) file any petition in bankruptcy or for any reorganization, arrangement,
composition, readjustment, liquidation, dissolutioi�, or similar relief under the United States
Bankruptcy Act or under any similar federal or State law; or
(ii) make an assignment for benefit of its creditors; or
(iii) ad►nit in writin� its inability to pay its debts generally as they become due; or
(iv) be adjudicated a bankrupt or insolvent.
Section 9.2. Remedies on Default. Whenever any Eve��t of Default referred to in Section 9.1 of
this Agreement occurs, the City or the County may each exercise any of the following rights under this
Section 9.2 after providing thirty days written notice to the Developer of the Evei�t of Default, but only if
the Event of Default has not been cured within said thirty days or, if the Event of Default is by its nature
incurable within thirty days, the Developer does not, within such 30-day period, provide assurances
reasonably satisfactory to the party providing notice of default that the Event of Default will be cured and
will be cured as soon as reasonably possible:
(a) Suspend its performance under the Agreement until it receives reasonably satisfactory
ass�irances that the Developer will cure its default and continue its performance under the Agreement.
(b) Cancel and rescind or terminate its obligations under the Agreement and the Note,
provided that:
(i) if the City terminates its obligations under the Agreement, it shall have no obligation
to �nake payments of City Tax Abatements under the Note; however, the City will co��tinue to
►nake payments of County Tax Abatements toward the principal amount of the Note if the County
has ��ot terminated its obligations under the Agreement;
(ii) if the County terminates its obligations under the Agreement, it shall have no fiurther
obligations to make payments of County Tax Abatements to the City hereunder, and the City
shall have no obligation to make payments under the Note from such funds;
22
399867v3 JAE SH235-20
(iii) if both the City and the County terminate their obligations hereunder, respectively,
this Agreement and the Note shall be deemed tenninated and the City shall have no further
obligations thereunder. Except as otherwise provided in Section 3.7 (c), the City may not
terminate its obligations to make payments under the Note unless both the City and the County
have terminated their obligations hereunder.
(c) Take whatever action, including legal, equitable or administrative action, which may
appear necessary or desirable to collect any payments due under this Agreement, or to enforce
performance and observance of any obligation, agreement, or covenant of the Developer under this
Agreement.
Section 93. No Remedy Exclusive. No remedy herei�� conferred upon or reserved to any party is
intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall
be cumulative and shall be in addition to every other remedy given under this Agreement or now or
hereafter existing at law or in equity or by statute. 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. (n order for the City to exercise any remedy reserved to it, it shall not be necessary to give
notice, other than such notice as may be required in this Article IX.
Section 9.4. No Additio��al Waiver Implied by One Waiver. In the event any agreement
contained in this Agreement should be breached by either party and thereafter waived by the other party,
such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any
other concurrent, previous or subsequent breach hereunder.
Section 9.5. Attornev Fees. Whenever any Event of Default occurs and if the City and County or
Developer shall employ attorneys or incur other expenses for the collection of payments due or to become
due or for the enforcement of performance or observance of any obligation or agreement on the part of the
Developer or the City and County under this Agreement, the non-prevailing party or parties in any such
action agrees that it shall, within 10 days of written demand by the prevailing party or parties, pay to the
prevailing party or parties the reasonable fees of such attorneys and such other reasonable expenses so
incurred.
Section 9.6 Default bv Citv or CountX. Notwithstanding anything to the contrary herein, in the
event the City or County fails to perform a��y covenant, condition, obligation or agreement on its part, and
such failure has not been cured within 30 days after receipt of written notice to the party from the
Developer, or if such failure is by its nature incurable withii� 30 days, the party does not, within such 30-
day limit, provide assurances reasonably satisfactory to the Developer that the failure will be cured as
soon as reasonably possible, then the Developer may exercise such remedies as may be available at law or
in equity with respect to the defaulting party. The tenns of Section 9.3, Section 9.4, and Section 9.5 shall
apply in favor the Developer as well as the City and County.
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23
399867v3 JAE SH235-20
ARTICLE X
Additional Provisions
Section 10.1. Conflict of I��terests; Representatives Not ti�dividually Liable. The City, County
and the Developer, to the best of their respective knowledge, represent and agree that no member, official,
or employee of the City or County shall have any personal interest, direct or indirect, in the Agreement,
nor shall any such member, official, or employee participate in any decision relating to the Agreement
wllich affects his personal interests or the interests of any corporation, partnership, or association in which
he is, directly or indirectly, interested. No member, official, or employee of the City or County shall be
personally liable to the Developer, or any successor in interest, in the event of any default or breach by
the City or County or for any amount which may become due to the Developer or successor or on any
obligations under the terms of the Agreement.
Section 10.2. Equal EmploYment Opportunity. The Developer, for itself and its successors and
assigns, agrees that during the construction of the Minimum Improvements provided for in the Agreement
it will comply with all applicable federal, state and local equal employment and non-discrimination laws
and regulations.
Section 10.3. [Intentionally Omitted]
Section 10.4. Provisions Not Mer�ed With Deed. None of the provisions of this Agreement are
intended to or shall be merged by reason of any deed transferring a��y i��terest in the Development
Property and any such deed shall not be deemed to affect or impair the provisions and covenants of this
Agreement.
Section 10.5. Titles of Articles and Sections. Any titles of the several parts, Articles, and
Sections of the Agreement are inserted for convenience of reference only and shall be disregarded in
construing or interpreting any of its provisions.
Section 10.6. Notices and Demands. Except as otherwise expressly provided in this Agreement,
a notice, demand, or other communicatio�� under the Agreement by either party to the other shall be
sufficiently given or delivered if it is dispatched by registered or certified inail, postage prepaid, return
receipt requested, or delivered personally; and
(a) in the case of the Developer and the Tenant, prior to the completion of the Minimum
Improvements, is addressed to or delivered personally to the Developer at 2917 Industrial Dr., Faribault,
Minnesota 55021; Attention: President, and after the completion of the Minimum Improvements, is
addressed to or delivered personally to the Developer at 5201 Deans Lake Boulevard, Shakopee,
Minnesota 55379; Attention: President; and
(b) ii� the case of the City, is addressed to or delivered personally to City Hall, 129 South
Holmes Street, Shakopee, Minnesota 55379; Attention: City Ad►ninistrator; and
(c) in the case of the County is addressed to or delivered personally to the County at the
Scott County Gover��mei�t Center, 200 Fourth Avenue West, Shakopee, Minnesota 55379; Attention:
County Attorney
or at such other address with respect to either such party as that party may, from time to time, designate in
writing and forward to the other as provided in this Section.
24
399867v3 JAE SH235-20
Section ]0.7. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall constitute one and the same instrument.
Section 10.8. Recording. The City may record this Agreement and any amendments thereto with
the Scott County Recorder. The Developer shall pay all costs for recording. The parties agree that the
City shall record this Agreement following the purchase of the Development Property by the Developer,
which is expected to occur on or about May 31, 2012.
(The remainder of this page is intentionally left blank.)
25
399867v3 JAE SH235-20
IN WITNESS WHEREOF, the City, County and Developer have caused this Contract for Private
Development to be duly executed by their duly authorized representatives as of the date first above
written.
CITY OF SHAKOPEE, MINNESOTA
By:
Its: Mayor
By:
[ts: City Administrator
By:
Its: City Clerk
STATE OF MINNESOTA )
) SS.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this day of , 2012, by
Brad Tabke, the Mayor of the City of Shakopee, Minnesota, on behalf of the City.
Notary Public
STATE OF MINNESOTA )
) SS.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this day of , 2012, by
Mark McNeill,the City Administrator of tl�e City of Shakopee, Minnesota, on behalf of the City.
Notary Public
STATE OF MINNESOTA )
) SS.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this day of , 2012, by
Julie Linnihan,the City Clerk of the City of Shakopee, Minnesota, on behalf of the City.
Notary Public
S-1
399867v3 JAE SH235-20
Execution page of the County to the Contract for Private Development, dated as of the date and year first
written above.
SCOTT COUNTY,MINNESOTA
By:
Its: Board Chair
By:
Its: County Administrator
Approved as to form:
By:
County Attorney
STATE OF MINNESOTA )
) SS.
COUNTY OF SCOTT )
The faregoing instrument was acknowledged before me this day of , 2012, by
Tom Wolf, the Board Chair of the Board of Commissioners of Scott County, Minnesota, on behalf of the
County.
Notary Public
STATE OF MINNESOTA )
) SS.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this day of , 2012, by
Gary Shelton, the County Administrator of Scott County, Minnesota, on behalf of the County.
Notary Public
S-2
399867v3 JAE SH235-20
Execution page of the Developer to the Contract for Private Development, dated as of the date and year
first written above.
BRIDGEWATER,LLC
By:
Its:
STATE OF MINNESOTA )
) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 2012,
by , the of Bridgewater, LLC, a Mini�esota limited
liability company, on behalf of the company.
Notary Public
S-3
399867v3 JAE SIi23�-20
Trystar, Inc., as the future Tenant of the Minimum Improvements and a party to the Contract for Private
Development, hereby acknowledges that its representations and warranties set forth in Section 2.4 of the
Contract of Private Development are true and correct as of the date hereof and that it agrees to satisfy the
requiremei�ts of Section 3.7 of the Coi�tract for Private Development, including but not limited to the job
and wage goals set forth in Section 3.7(b) and the reporting requirements set forth in Section 3.7(d).
TRYSTAR,INC.
By:
Its:
STATE OF MINNESOTA )
) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 2012,
by , the of Trystar, Inc., a Minnesota corporation, on
behalf of the corporation.
Notary Public
S-4
399867v3 JAE SH235-20
SCHEDULE A
DEVELOPMENT PROPERTY
Lot 1, Block l, Dean Lakes 8th Addition, according to the recorded plat thereof, Scott County, Minnesota
399867v3 JAE SH235-20 A-1
SCHEDULE B
ASSESSED PROPERTY
The Assessed Property is the aggregate of the following areas:
Commercial Property Lots 1 through 6, Block 2 Dean Lakes Second Addition; Outlot
N; Lots 1 and 2, Block 1, Dean Lakes Second Addition,
according to the recorded plat thereof, Scott County, Minnesota.
Business Park Property Lot 1, Block 3, and Outlot A, Dean Lakes 2°d Addition,
according to the recorded plat thereof, Scott County, Minnesota.
Residential Property Outlot H and all of Blocks l, 2, 3, 4, S, 6, 7 and 8, Dean Lakes
First Addition, according to the recorded plat thereof, Scott
County, Minnesota.
399867v3 JAE SH23�-20 B-]
SCHEDULE C
CERTIFICATE OF COMPLETION
The undersigned hereby certifies that Bridgewater, LLC, a Mi��nesota limited liability company
(the "Developer"), has fully complied with its obligations under Articles III and IV of that document
titled "Contract for Private Development," dated , 2012, between the City of Shakopee,
Minnesota, Scott County, Minnesota and the Developer, with respect to construction of the Minimum
Improvements in accordance with the Construction Plans, and that the Developer is released and forever
discharged from its obligations to construct the Minimum Improvements set forth in Articles Ill and IV of
the Contract for Private Development.
Dated: ,20 .
CITY OF SHAKOPEE, MINNESOTA
By:
Its:
[A copy of this Certificate shall be provided to Scott County.]
399867v3 JAG SH235-20 C-]
SCHEDULE D
FORM OF NOTE
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF SCOTT
CITY OF SHAKOPEE,MINNESOTA
No. R-1 $
TAXABLE LIMITED REVENUE NOTE
SERIES
Date of
Original Issue
The City of Shakopee, Minnesota (the "Issuer"), hereby acknowledges itself to be indebted and,
for value received, promises to pay to the order of Bridgewater, LLC, or registered assigns(the"Owner"),
solely from the source, to the extent and in the manner hereinafter provided, the principal sum in an
amount not to exceed $ (the "Principal Amount"). This Note shall not bear interest. This
Note is given in accordance with that certain Contract for Private Development between the Issuer, Scott
County (the "County") and the Owner dated as of , 2012 (the "Contract"). Capitalized ter�ns
used and not otherwise defined herein shall have the meaning provided for such terms in the Contract
unless the coi�text clearly requires otherwise.
The Principal Amount of this Note shall be payable in semi-annual installments payable on each
February 1 and August 1, (the "Payment Dates") commencing l, 20 and ceasing no later
than l, 20_ (N�e "Final Maturity Date"), each payment being in the amount of Available
Abatement, as defined herein. The Principal Amount is subject to prepayment at the option of the Issuer
in whole or in part on any date after the date of original issue.
Each payment oi� this Note is payable in any coin or currency of the United States of America
which on the date of such payment is le�al tender for public and private debts and shall be made by check
or draft made payable to tl�e Owner and mailed to the Owner at its postal address within the United States
which shall be designated from time to time by the Owner.
Payments on this Note are payable solely from "Available Abatement," which shall mean, on
each Payment Date, the sum of the City Tax Abatements and Cou��ty Tax Abatements generated in the
preceding six (6) months with respect to the Development Property and remitted to the Issuer by the
County. The pledge of Available Abatement is subject to all the terms and conditions of the City
Abate�nent Resolution, the County Abatement Resolution and the Contract.
The Issuer shall have no obligation to make any payment on any Payment Date if, as of such date
there has occurred and is continuing any Event of Default on the part of the Owner as defined in the
Contract If the Event of Default is thereafter cured in accordance with the Agreement, the City Tax
Abatement and County Tax Abatement as of such Payme��t Date shall be deferred and paid on the next
399867v3 JAE SH235-20 D-1
Payment Date after the Event of Default is cured. If ai� Event of Default is not timely cured and either the
City or the County elects to terminate their respective obligations under the Contract,the Issuer shall have
no further obligatioi�s to make payments hereunder from City Tax Abate�nent or County Tax Abatement,
as the case may be. If an Event of Default is not timely cured and both the Issuer and County terminate
their respective obligations under the Contract, the Contract a��d the Note shall be deemed terminated and
the Issuer shall have no further obligations hereunder. Except as otherwise provided in Section 3.7(c) of
the Contract, the Issuer may not terminate the Note unless the Issuer and the County have terminated their
obligations under the Contract.
This Note shall terminate and be of no further force and effect as of the earlier of: (1) the last
Payment Date; (2) the date the Principal Amount shall have been paid in full; or(3) the date the Contract
and the Note have been tenninated in accorda��ce with the Contract. The Issuer makes no representatio��
or covenant, express or implied, that the City Tax Abatement or the County Tax Abatement will be
sufficient to pay, in whole or in part, the amounts which are or may become due and payable hereunder.
The Issuer shall have no obligation to pay any portion of the Principal Amount that remains unpaid after
1, 20 .
Any estimates of Abatement prepared by the Issuer, the County or their respective financial
advisors in connection with the Available Abatemei�t and the Contract are for the benefit of the Issuer and
County only, and are not intended as representations on which the Developer may rely.
THE ISSUER AND THE COUNTY MAKE NO REPRESENTATIONS OR WARRANTIES
THAT THE AVAILABLE ABATEMENT WILL BE SUFFICIENT TO PAY THE PRINCIPAL OF
THIS NOTE.
This Note is issued pursuant to Mini�esota Statutes, Sections 469.1812 to 469.1815, and pursuant
to the resolution of the Issuer adopted on May 1, 2012 (the "Resolution") duly adopted by the Issuer
pursuant to and in full conformity with the Constitution and laws of the State of Minnesota. This Note is
a limited obligation of the lssuer, payable solely from moneys pledged to the payment of the Note under
the Resolution. The Note shall not be deemed to constitute a gei�eral obligation of the State of Minnesota,
or ai�y political subdivision thereof, including, without limitation, the [ssuer and the County. Neither the
State of Minnesota, nor any political subdivision thereof, including, without limitation, the Issuer and the
County, shall be obligated to pay the principal of this Note or other costs incide��t hereto except from the
revenues and receipts pledged therefor, and neither the full faith and credit nor the taxing power of the
State of Minnesota or any political subdivision thereof, includi��g, without limitation, the Issuer, is
pledged to the payment of the prii�cipal of this Note or other costs incident hereto.
This Note is issuable only as a fully registered note without coupons. This Note is transferable
upon the books of the Issuer kept for that purpose at the principal office of the Registrar, by the Owner
hereof in person or by such owner's attorney duly authorized in writing, upon surrender of this Note
together with a written instrument of transfer satisfactory to the Issuer, duly executed by the Owner.
Upon such transfer or exchange and the payment by the Owner of any tax, fee, or governmental charge
required to be paid by the Issuer with respect to such transfer or exchange, there will be issued in the
name of the transferee a new Note of the same aggregate principal amount, bearing no interest, and
maturing on the same dates.
This Note shall not be transferred to any person or entity unless the Issuer has been provided with
an opinion of counsel or a certificate of the transferor, in a form satisfactory to the Issuer, that such
transfer is exempt from registration and prospectus delivery requirements of federal and applicable state
securities faws. Transfer of the ownership of this Note to a person other than one permitted by this
399867v3 JAE SH235-20 D_2
paragraph without the written consent of the Issuer shall relieve the Issuer of all of its obligations under
this Note.
IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions, and things required by the
Constitutio�� and laws of the State of Minnesota to be done, to have happened, and to be performed
precedent to and in the issuance of this Note have been done, have happened, and have been performed in
regular and due forin, time, and manner as required by law; and that this Note, together with all other
indebtedness of the Issuer outstanding on the date hereof and on the date of its actual issuance and
delivery, does not cause the indebtedness of the issuer to exceed any constitutional or statutory limitation
thereon.
IN WITNESS WHEREOF, the City Council of the City of Shakopee, Minnesota has caused this
Note to be executed by the manual signatures of the Mayor, City Administrator and the City Clerk of the
Issuer and has caused this Note to be dated as of the Date of Original Issue specified above.
CITY OF SHAKOPEE,MINNESOTA
By
[ts Mayor
By
Its City Administrator
By
Its City Clerk
399867v3 JAE SH235-20 D-3
REGISTRATION PROVISIONS
The ownership of the unpaid balance of the within Note is registered in the bond register of the City
Fina��ce Director in the na�ne of the person last listed below.
Signature of
Date of Registration Re�istered Owner Finance Director
Bridgewater, LLC
Federal ID#
399867v3 JAG SH23�-20 D-4
SCHEDULE E
FORM OF SUBORDINATION AGREEMENT
TH[S SUBORDINATION AGREEMENT (this "Agreement") is made as of this day of
, 20 , between ("Lender"), whose address is at
, SCOTT COUNTY, a public body corporate and politic (the "County"),
and the CITY OF SHAKOPEE, a public body corporate and politic("City").
RECITALS
A. Bridgewater, LLC, a Minnesota limited liability company ("Developer"), is the owner of
certain real property situated in Scott County, Minnesota and legally described in Exhibit A attached
hereto and incorporated herein (the "Property").
B. Lender has made a mortgage loan to Developer in the original principal amount of
$ (the "Loan"). The Loan is the evidenced and secured by the following documents:
[insert loan documents]
The [loan documents], and all other documents and instruments evidencing, securing and
executed in coi�nection with the Loa��, are hereinafter collectively referred to as the "Loan Documents."
C. City and County are the owners and holders of certain rights under a certain recorded
Contract for Private Development(the "Contract") by and between the City, the County, and the Developer,
dated ,2012.
D. Developer is entitled under the Contract to acquire a certain Taxable Limited Revenue Note,
Series 2012 in the original principal amount of$2,000,000(the"Note").
NOW, THEREFORE, in consideration of the foregoing and as an inducement to Lender to make the
Loan, and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged,the parties hereto represent, warrant and agree as follows:
I. Consent. The City and County acknowledge that the Lender is making the Loan to the
Developer and consent to the same. The City and County also consent to and approve the assignment of the
Contract and Note (when and if issued) by the Developer to the Lender as collateral for the Loan; provided,
however, that this consent shall not deprive the City or County of or otherwise limit any of the City and
County's rights or remedies under the Contract and Note and shall not relieve the Developer of any of its
obligations under the Contract and Note; provided further, however, the limitations to the City and County's
consent contained in this Paragraph 1 are subject to the provisions of Paragraph 2 below.
2. Subordination. The City and County hereby agree that the rights of the City and County
with respect to the Development Properiy under the Contract are and shall remain subordii�ate and subject to
liens, rights and security interests created by the Loan Documents and to any and all amend►nents,
modifications, extensions, replaceme��ts or renewals ofthe Loan Documents; provided, however,that nothing
herein shall be construed as subordinating the requirements contained in Section 3.7 of the Contract, or as
subordinating the City and County's rights under the Note to suspei�d paymenis in accordance with the Note.
399867v3 JAE SH235-20 p_�
3. Notice to Cit�and CountX. Lender agrees to notify City and County of the occurrence of
any Event of Default given to Developer under the Loan Documents.
4. No Assumption. The City and County acknowledges that the Lender is not a party to the
Contract and by executing this Agreement does not become a party to the Contract, and specifically does not
assume and shall not be bound by any obligations of the Developer to the City and County under the
Contract, and that the Lender shall incur no obligations whatsoever to the City and County except as
eapressly provided herei��.
5. Notice from City and CountX. So long as the Contract remains in effect, the City and
County agree to give to the Lender copies of notices of any Event of Default given to Developer under the
Contract.
6. Governin�. This Agreement is made in and shall be construed in accordance with the
laws of the State of Minnesota.
7. Successors. This Agreement and each and every covenant, agreement and other provision
hereof shall be binding upon and ii�ure to the be��efit of the parties hereto and their respective successars and
assigns, including any person who acquires title to the Property through the Lender of a foreclosure of the
Mortgage.
8. Severability. The unenforceability or invalidity of any provision hereof shall not render any
other provision or provisions herein contained unenforceable or invalid.
9. Notice. Any notices and other communications permitted or required by the provisions of
this Agreement shall be in writing and shall be deemed to have been properly given or served by depositing
the same with the United States Postal Service, or any official successor thereto, designated as registered or
certified mail, return receipt requested, bearing adequate postage, or delivery by reputable private carrier and
addresses as set forth above.
10. Transfer of Title to Lender. The City and County agree that in the event the Lender, a
transferee of Lender,or a purchaser at foreclosure sale,acquires title to the Property pursuant to a foreclosure,
or a deed in lieu thereof, the Lender, transferee, or purchaser shall not be bound by the terms and conditions
of the Contract except as expressly herein provided. Further the City and County agree that in the event the
Lender, a transferee of Lender, or a purchaser at foreclosure sale acquires title to the Property pursuant to a
foreclosure sale or a deed in lieu thereof, then the Lender, transferee, or purchaser shall be entitled to all
rights conferred upon the Developer under the Coi�tract, provided that no condition of default exists and
remains ui�cured beyond applicable cure periods in the obligations of the Developer under the Contract.
11. Esto�pel. The City and County hereby represent and warrant to Lender, for the purpose of
inducing Lender to make advances to Developer under the Loan Documents that:
(a) No default or event of default by Developer exists under the terms of the Contract on the
date hereof;
(b) The Contract has not been amended or modified in any respect, nor has any materiai
provision thereof been waived by either the City and County or the Developer, and the
Contract is in full force and effect;
(c) Such other reasonable certifications as the Lender may request.
399867v3 JAE SH235-20 D_2
13. A►nendments. The City and County hereby represent and warrant to Lender for the purpose
of inducing Lender to make advances to Developer under the Loan Documents that City and County will not
agree to any amei�dment or modification to the Contract or any Note issued under the Contract that materially
affects the collection of City Tax Abatement or County T� Abatement (as those terms are defined in the
Contract) in any way affects the Property without the Lender's written consent.
399867v3 JAE SH235-20 D-3
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the day and year
first written above.
CITY OF SHAKOPEE,MINNESOTA
By:
Its: Mayor
By:
Its: City Administrator
By:
Its: City Clerk
STATE OF MINNESOTA )
) SS.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this day of , 20_, by
, the Mayor of the City of Shakopee, Minnesota, on behalf of the City.
Notary Public
STATE OF MINNESOTA )
) SS.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this day of , 20_, by
, the City Administrator of the City of Shakopee, Minnesota, on behalf of the City.
Notary Public
STATE OF MINNESOTA )
) SS.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this day of , 20_, by
,the City Clerk of the City of Shakopee, Minnesota, on behalf of the City.
Notary Public
399867v3 JAE SH23>-20 D-4
SCOTT COUNTY,MINNESOTA
sy:
Its: Board Chair
By:
Its: County Administrator
Approved as to form:
By:
County Attori�ey
STATE OF MINNESOTA )
) SS.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this day of , 20_, by
, the Board Chair of the Board of Commissioners of Scott County, Minnesota, on behalf of
the County.
Notary Public
STATE OF MINNESOTA )
) SS.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this day of , 20_, by
,the County Administrator of Scott County, Minnesota, on behalf of the County.
Notary Public
399867v3 JAE SIi235-20 p-S
[LENDER]
By:
Its
STATE OF MINNESOTA )
) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 20_, by
,the , on behalf of the [Lender].
Notary Public
399867v3 JAE SH235-20 p-(