HomeMy WebLinkAbout9.B. Continued Public Hearing on MN Investment Fund loan for Challenge Printing, Inc.-Res. No.6148
q.B.
CITY OF SHAKOPEE
Memorandum
TO: Mayor and City Council
FROM: Paul Snook, Economic Development coordinat~
SUBJECT: Public hearing regarding Minnesota Investment Fund application,
and approval of related Grant Agreement and Loan Agreement for
Challenge Printing, Inc.
Resolution No. 6149, Approving a Grant Agreement between the
City and Minnesota Department of Employment and Economic
Development relating to grant of funds under the Minnesota
Investment Fund Program, and Approving Minnesota Investment
Fund Loan Agreement between the City and ChaIIenge Printing,
Inc.
MEETING DATE: November 16, 2004
Introduction & Background
At the August 1 ih meeting, City Council adopted Resolution 6099, authorizing
application to the Minnesota Department of Employment and Economic Development
(DEED) for the Minnesota Investment Fund for Challenge Printing, Inc. In addition,
Council initiated a public hearing as required under the Business Subsidy Act and to
provide citizen notification and involvement prior to submitting the MIF application, and
continued the public hearing to November 16th.
The Minnesota Department of Employment and Economic Development has approved
the MIF loan for the Challenge Printing expansion. The Grant Agreement (Exhibit A),
Loan Agreement (Exhibit B) are complete and ready for implementation.
Action Requested
1. Continue, and close the public hearing
2. Offer Resolution 6149, approving a Grant Agreement between the City and
Minnesota Department of Employment and Economic Development relating to
grant of funds under the Minnesota Investment Fund Program, and Approving
Minnesota Investment Fund Loan Agreement between the City and Challenge
Printing, Inc., and move its adoption.
mif - challenge ph memo 11-16-04.doc
CITY OF SHAKOPEE
RESOLUTION NO. 6149
RESOLUTION APPROVING GRANT AGREEMENT .
BETWEEN CITY AND DEPARTMENT OF EMPLOYMENT
AND ECONOMIC DEVELOPMENT RELATING TO A GRANT
OF FUNDS UNDERTHE MINNESOTA INVESTMENT FUND
PROGRAM ANDAPPROVING MINNESOTA INVESTMENT
FUND LOAN AGREEMENT BETWEEN THE CITY AND
CHALLENGE PRINTING, INC.
WHEREAS, pursuant to Resolution No. 6099, adopted on August 17, 2004, the City
Council (the "City Council")of the City of Shakopee (the "City") approved the submission of an
application for a grant from the Minnesota Investment Fund Program administered by the
Minnesota Department of Employment and Economic Development ("DEED"); and
WHEREAS, Challenge Printing, Inc. (the "Developer") has requested the City enter into a
Grant Agreement with DEED to obtain grant funds in the amount of $440,000 and loan such grant
funds to the Developer;
WHEREAS, the City Council has received and reviewed an Amended Grant Agreement
(the "Grant Agreement") between the City and DEED, providing for the grant of $440,000 from
. DEED to the City;
WHEREAS, the City Council has received and reviewed a Loan Agreement for Loan of
Minnesota Investment Fund Grant (the "Loan Agreement"), between the City and the Developer,
providing for the loan of the grant funds in the amount of $440,000 to the Developer (the "Loan"),
which agreement includes a "business subsidy agreement" as defined in Minnesota Statutes, Section
166J.993 to 116J.995;
WHEREAS, on the date hereof, the City has conducted a duly noticed public hearing as
required by Minnesota Statutes, Section 116J.994, Subdivision 5 on the proposed Loan to be made
to the Developer pursuant to the Loan Agreement; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Shakopee,
that:
1. The Grant Agreement is approved. The Mayor and the City Clerk are authorized
and directed to sign the Grant Agreement and any other documents or certificates
necessary to carry out the transactions described in the Grant Agreement.
2. The Loan Agreement, and the business subsidy agreement contained therein, is
llPproy~d. Thy Maypr and the City Clerk are authorized and directed to sign the
Grant Agreement and any other documents or certificates necessary to carry out the
transactions described in the Grant Agreement.
255517 (JAE)
SH235-16
2. The Grant Agreement and the Loan Agreement are approved in substantially the
forms on file in City Hall, subject to modifications that do not alter the substance
of the transaction and are approved by the Mayor and the City Clerk; provided
that execution of the documents will be conclusive evidence of their approval.
Approved by the City Council of the City of Shakopee this 16th day of November, 2004.
Mayor
ATTEST:
City Clerk
255517 (.lAE)
51-1235-16
EJ'h/b/t A
STATE OF MINNESOTA
DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT
BUSINESS AND COMMUNITY DEVELOPMENT DIVISION
Amended Grant Agreement
#CDAP-01-0181-H-FY02
This Agreement is made on October 1, 2004, between the State of Minnesota, acting
through the Department of Employment and Economic Development (hereinafter the
Grantor), and the City of Shakopee (hereinafter the Grantee), 129 Holmes St. S'outh,
Shakopee, MN 55379.
RECITALS
The Grantor has been authorized to administer funds pursuant to Minnesota Statute
116J.8731.
The Grantee has made application to the Grantor for a portion of the allocation for the
purpose of conducting the project entitled Challenge Printing, Inc. in the manner described
in Grantee's "Application, #CDAP-01-0181-H-FY02" (herein the Application) which is
incorporated into this agreement by reference.
The recitals are an integral part of this Grant Agreement.
In consideration of mutual promises set forth below, the parties agree as follows:
The Grantor shall grant to the Grantee the total sum of Four Hundred Forty Thousand
Dollars ($440,000), which shall be state funds appropriated under the Minnesota
Investment Fund Program by the State Legislature. The Grantee shall perform the
activities thatare proposed in the Application and are further specified under Special
Conditions during the period from October 1, 2004 through October 1, 2006, in
accordance with all other applicable State and Federal laws.
Grantee agrees to complete the project in accordance with the approved budget and
within the time frames specified in the Grantees Application and this Agreement. Any
material change in the scope ofthe project, bUdget,or completion date must be approved
in writing by the Grantor.
Funds made available pursuant to this Agreement shall be used only for expenses
incurred in performing and accomplishing such purposes and activities during the grant
period described above.
Where provisions of the Grantee's Application are inconsistent with other provisions of this
Agreement, the other provisions of this Agreement shall take preced,ence over the
provisions of the Application.
GENERAL CONDITIONS
Accountinq. For all expenditures of funds made pursuant to this Agreement, Grantee shall
keep financial records, including invoices, contracts, receipts, vouchers, and other documents
sufficient to evidence in proper detail the nature and propriety of the expenditure.
Loan Repayment. Grantee will comply with the repayment provisions of this Agreement until
the loan to Challenge Printing, Inc. is repaid and payments due from Grantee to the State are
made.
Reportinq. Grantee shall submit reports to Grantor in accordance with the reporting
requirements set forth in Minnesota Rule 4300.3200. Grantee shall use the forms found in the
Implementation Manual provided by the Grantor and submit progress reports on a yearly basis
ending December 31. Progress reports are due January25. The Grantor, at its discretion,
may require the submittal of additional progress reports during the grant period.
Audit and Inspection. Accounts and records related to the funds provided under this .
Agreement shall be accessible to authorized representatives of the Grantor for the purposes of
examination and audit. In ad:lition, Grantee will give the State of Minnesota, Department of
Employment and Economic Development, Legislative Auditor, and State Auditor's Office,
through any authorized representatives, access to and the right to examine all records, books,
papers, or documents related to the grant for inspection and audit, for a minimum of six years
from the end of this Grant Agreement.
Payment/Disbursement Schedule. Grantor shall disburse funds to the Grantee pursuant to this
Agreement, based upon a payment request submitted by the Grantee and reviewed and
approved by the Grantor.
Affirmative Action. Grantee is encouraged to prepare and implement an affirmative action plan
for the employment of minOrity persons, women, and the disabled and submit the plan to the
Commissioner of Human Rights as required by Minnesota Statutes 363.073 Subdivision 1.
Notice for Contract and Subcontract. Grantee shall include in any contract or subcontract, in
addition to the provisions to define a sound and complete agreement, such provisions as to
assure contractor or subcontractor compliance with applicable state and federal laws.
Antitrust. The Grantee hereby assigns to the State of Minnesota any and all claims for
overcharges as .to goods and/or services provided in connection with this contract resulting
from antitrust violations which arise under the antitrust laws of the United States and the
antitrust laws of the State of Minnesota.
Termination by the State. The State or commissioner of Administration may cancel this Grant
at any time, with or without cause, upon 30 days' written notice to the Grantee. Upon
termination, the Grantee will be entitled to payment, determined on a pro rata basis, for
services satisfactorily performed.
Termination for Insufficient Fundinq. The State may immediately terminate this Grant if it does
not obtain funding from the Minnesota Legislature, or other funding source; or if funding cannot
be continued at a level sufficient to allow for the payment of the services covered here.
Termination must be by written or fax notice to the Grantor. The State is not obligated to pay
for any services that are provided after notice and effective date of termination.
However, the Grantee will be entitled to payment, determined on a pro rata basis, for services
satisfactorily performed to the extent that funds are available. The State will not be assessed
any penalty if the Grant is tenninated because of the decision of the Minnesota l.egislature, or
other funding source, not to appropriate funds. The State must provide the Grantee notice of
.the lack of funding within a reasonable time of the State's receiving that notice.
.Amendments. Any amendment to this Agreement shall be in writing, and shall be executed by
either the same persons who executed the original agreement, their successor in office, or.by
those persons authorized by the Grantee through a formal resolution of its governing body.
Government Data Practices. The Grantee shall comply with the Minnesota Government Data
Practices Act, Chapter 13 and the Conflict of Interest provisions of Minnesota Statutes,
Sections 471.87 - 471.88.
Successors and Assianees. This Agreement shall be binding upon any successors or
assignees of the parties.
Authorized Aaent. The State's authorized agent and contact person responsible for
administration of this Agreement is Cheryl Johnson (or successor) of the Department of
Employment and Economic Development.
Liabilitv. Grantee agrees to indemnify and save and hold Grantor, its agents and emplo~es
harmless from any and all claims or causes of action arising from the performance of the Grant
by Grantee or Grantee's agents or employees. This clause shall not be construed to bar any
legal remedies Grantee may have for the Grantor's failur~ to fulfill its obligations pursuant to
this Agreement.
SPECIAL CONDITIONS
FOR: Grant Number: CDAP-01-0181-H-FY02
Project Title: Challenge Printing, Inc.
1. Funds will not be released until the following is subm.itted to the Grantor and approved:
a) Grantee's Revolving Loan Fund (RLF) policies and procedures.
2. The Grantee may not request funds from the Grantor for disbursement to Challenge
Printing, Inc. until the Grantee has received invoices for machinery and equipment
costs. The Grantee must request funds for machinery and equipment costs from the
Grantor based an invoice for the Magnus Platesetter. .
3. The leveraged funds described in the approved Application must be used for the same
purposes and under the same tenns, rates, and conditions, as specified in the
approved application, unless prior written concurrence is received from the Grantor.
4. Grantee must secure from Challenge Printing, Inc. the necessary documentation that
all project funds have been used for the items and purposes stated in the Grant
Application, prior to requesting grant closeout from the Grantor.
5. The Grantee shall enter into a Loan Agreement with Challenge Printing, Inc. (hereafter
"Borrower") for Four Hundred Forty Thousand Dollars dollars ($440,000), to be used for
the purposes,. conditions and terms as stated in the approved Application, and may not
be modified without prior written approval from the Grantor. The term of the loan will be
7 years and the interest rate Will be 2.00% for the term of the loan. Collateral shall be in
the form of a 1 st lien position on the Magnus Platesetter.
6. Grantee's attorney must review Loan Agreements, promissory notes, security
agreements, mortgages, guaranty or other documents, if any, considered necessary by
the Grantee to secure the loan to ensure that they are valid, binding and enforceable.
Special conditions 9, 10, 11, 12 and 13 included in this Agreement must be
incorporated into the Loan Agreement. A copy of the Loan Agreement, promissory
note, and amortization schedule, and evidence of security filings, must be submitted to
the Grantor for review prior to requesting funds.
7. Principal and interest payments from the loan to Challenge Printing, Inc. must be used
to establish and maintain a revolving loan fund. The Grantee must retain financial
control and decision-making authority regarding the use of the repayments from the
loan. HO\Never, the Grantee may loan or grant money from its revolving loan fund to a .
regional development organization or to a state community-based development
organization for capitalization of a regional or statewide revolving loan fund. The
Grantee must notify the Grantor, in writing, prior to the release of funds to an
organization. The revolving loan fund policies and procedures must be consistent wth
the Minnesota Investment Fund Program requirements to further economic
development in the community thereby creating or retaining permanent positions.
8. The Grantee may retain the repayment of $100,000 of principal and interest. The
remaining $ 340,000 of principal and interest will be retained by the State.. Repayments
will be made monthly to the City, and the City will retain 22.72% of each monthly
payment with the remainder of the monthly payment being forwarded to the State. The
status of payments shall be reported on the progress reports. In the event the loan is
not paid-in-full, the $100,000 principal and interest the Grantee retains will be reduced
proportionally.
9. The Grantee must include job creation information in each progress report. This
information must include:
- permanent jobs created -hourly wage - date employee (s) hired
- job title per job -hourly value of benefits - benefits
10. The Grantee must report on permanent job creation until the 80 FTE jobs are created,
all paying $12.00 per hour or more in wages, exclusive of benefits. If Challenge
Printing, Inc. fails to meet the job creation goal and wage level commitment by the end
date of the grant period, October 1, 2006, the Grantee will be required to return to the
Grantor all or a proportional share of the grant. Challenge Printing, Inc. identified a base
employment of 380 FT/FTE employees in the Grant Application, which must be
maintained through the end date of the grant period, in addition to the 80 FT/FTE new
jobs created.
11. Minnesota Statutes 116J.993-116J.994 (Business Subsidies Law) applies to this
project. In accordance with these statutes, a business that fails to meet the terms of this
grant agreement, may not receive financial assistance from any grantor for a period of
five years from the date of failure or until the business.satisfies its repayment obligation
under this grant agreement. These statutes also require that a business receiving
financial assistance continue operations at the site until October 1, 2009. The loan
made under this grant agreement is payable in full if the business does not continue
operations at the site.
12. Challenge Printing, Inc. must list any vacant or new positions with the Commissioner of
Economic Security or a local service unit operated by a county or counties operating
under a joint powers agreement, one or more cities of the first class operating under a
joint powers agreement, or a city of the first class. Challenge Printing, Inc. must sign a
First Source Employment Referral Agreement with Economic Security. Minnesota
Statute 268.66 requires that a business receiving in excess of $200,000 from the State
enter into a First Source Agreement.
13. The Grantor may not authorize disbursement of funds if there has been.any adverse
change in the company's financial condition, organization, operations or their ability to
repay the project financing.
Grant Number: CDAP-01-0181-H-FY02
Project Title: Challenge Printing, Inc.
Notice to Grantee
You are required by Minnesota Statutes, Section 270.66, to provide your Minnesota tax identification
number if you do business with the State of Minnesota. This information may be used in the
enforcement of federal and state tax laws. Supplying these numbers could result in action to require you
to file state tax returns and pay delinquent state tax liabilities. This contract will not be approved unless
these numbers are provided. These numbers will be available to federal and state tax authorities and
state personnel involved in the payment of state obligations.
Minnesota Tax 10: 8025237
Federal Employer 10: 41-6005539
The Grantor and Grantee acknowledge their assent to this agreement and agree to be bound by its
terms through their signatures entered below.
GRANTEE: I have read and I agree STATE OF MINNESOTA by and
to all of the above provisions through the Department of Employment
of this agreement. and Economic Development
By By
Title Title Commissioner
Date Date
By ENCUMBERED:
Title
Date Department of Employment and Economic
Development
By
Date Encumbered
[Individual signing certifies that funds have been
encumbered as required by Minnesota Statute
16A.]
STA TE-Contract.doc
revised 3/2002
-,
RESOLUTION NO. 6099
. A RESOLUTION OF THE CITY OF SHAKOPEE
AUTHORIZING APPLICATION TO THE MINNESOTA DEPARTMENT OF
EMPLOYMENT AND ECONOMIC DEVELOPMENT FORTHE MINNESOTA
INVESTMENT FUND FOR CHALLENGE PRINTING, INC.
WHEREAS, the City of Shakopee. has reviewed Challenge Printing's
proposed expansion of its manufacturing facility and request for assistance; and
WHEREAS, the City has previously submitted a Part I Application for the
Minnesota Investment Fund and now wishes to submit a Part" Application.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SHAKOPEE, MINNESOTA AS FOLLOWS:
1. That the City of Shakopee act as the legal sponsor for the project contained
in the Business and Community Development Application to be submitted on
August 18, 2004, and that the City Administrator is hereby authorized to
apply to the Department of Employment and Economic Development, for
funding of this project on behalf of the City of Shakopee
2. That the City of Shakopee has not incurred any costs and has not entered
into any written agreements for purchase of property for the proposed
project.
3. That the GUy of Shakopee has not violated any Federal, State, or local laws
pertaining to fraud, bribery, kickbacks, collusion, conflict of interest or other
unlawful or corrupt practice.
4. That upon approval of its application by the Department of Employment and
Economic Development on behalf of the State of Minnesota, the City of
Shakopee may enter into an agreement with the State of Minnesota for the
above-referenced project, and that the City of Shakopee certifies that it will
comply with all applicable laws and regulations as stated in all contract
agreements and described on the Compliance Section of the Business and
Community Development Application.
5. As applicable, that the City of Shakopee has obtained credit reports and
credit information from Challenge Printing, Inc. Upon review by the City of
Shakopee and its legal counsel, no adverse findings or concerns regarding,
but not limited to, tax liens, judgments, court actions, and filings with state,
federal and other regulatory agencies were identified. Failure to disclose any
such adverse information could result in revocation or other legal action.
6. That the City Administrator is hereby authorized to .execute such
agreements, and amendments thereto, as are necessary to implement the
project on behalf of the City of Shakopee.
Adopted in ~~: /71.///04/ session of the City Council of Shako pee,
Minnesota, held t IS /7-rh day of (21'4" . I 2004. .
M~e~
ATTEST:
W ~~/2#J'/4~.J
fty Clerk
PREPARED BY:
City of Shakopee
129 South Holmes Street
Shakopee, MN 55379.
STATE OF MINNESOTA
DEPARTMENT OF TRADE AND ECONOMIC DEVELOPMENT
BUSINESS AND COMMUNITY DEVELOPMENT DIVISION
Grant Agreement
#CDAP-01-o181-H-FY02
This Agreement is made on June 25, 2002, between the State of Minnesota, acting through
the Department of Trade and Economic Development (hereinafter the Grantor), and the City of
Shakopee (hereinafter the Grantee), 129 Holmes Street So., Shakopee,MN 55379. .
RECITALS
The Grantor has been authorized to administer funds pursuant to Minnesota Statute
116J.8731.
The Grantee has made application to the Grantor for a portion of the allocation for the pUrpose
. of conducting the project entitled CertainTeed Corporation in the manner described in
Grantee's "Application, #CDAP-01-0181-H-FY02" (herein the Application) which is
incorporated into this agreement by reference.
The recitals' are an integral part of this Grant Agreement.
. ,
In consideration of mutual promises set forth below, the parties agrre as follows:
I
The Grantor shall grant to the Grantee the total sum of FOUR HUNDRED AND FORTY
THOUSAND DOLLARS ($440,000), which shall be state funds appropriated under the
Minnesota Investment Fund Program by the State Legislature. The!Grantee shall perform the
activities that are proposed in the Application and are further specified under Special
Conditions during the period from June 25, 2002 through June 30, ~004, in accordance with all
other applicable State and Federal laws.
)
Grantee agrees to complete the project in accordance with the approved budget and within the
time frames specified in the Grantees Application and this Agreement. Any material change in
the scope of the project, budget, or completion date must be approved in writing by the
Grantor. I
Funds made available pursuant to this Agreement shall be used only for expenses incurred in
performing and accomplishing such purposes and activities during tHe grant period described
I
above. !
Where provisions of the Grantee's Application are inconsistent with ~ther provisions of this
Agreement, the other provisions of this Agreement shall take precedence over the provisions
of the Application.
GENERAL CONDITIONS
Accounting. For all expenditures of funds made pursuant to this Agreement, Grantee shall
keep financial records, including invoices, contracts, receipts, vouchers, and other documents
sufficient to evidence in proper detail the nature and propriety of the expenditure.
. . !
Loan Repavment. Grantee will comply with the repayment provisions of this Agreement until
the loan to CertainTeed Corporation is repaid and payments due from Grantee to the State are
made.
Reoortina. Grantee shall submit reports to Grantor in accordance with the reporting
requirements set forth in Minnesota Rule 4300.3200. Grantee shall use the forms found in the
Implementation Manual provided by the Grantor and submit progress reports on a yearly basis
ending December 31. Progress reports are due January 25. The Grantor, at its discretion,
may require the submittal of additional progress reports during the grant period.
Audit and Insoection. Accounts and records related to the funds provided under this
Agreement shall be accessible to authorized representatives of the Grantor for the purposes of
examination and audit. In addition, Grantee will give the State of Minnesota, Department of
Trade and Economic Development, Legislative Auditor, and State Auditor's Office, through any
authorized representatives, access to and the right to examine all records, books, papers, or
documents related to the grant for inspection and audit, for a minimum of six years from the
end of this Grant Agreement.
Pavment/Disbursement Schedule. Grantor shall disburse funds to the Grantee pursuant to this
Agreement,' based upon a payment request submitted by the Grantee and reviewed and
approved by the Grantor.
Affirmative Action. Grantee is encouraged to prepare and implement an affirmative action plan
for the employment of minority persons, women, and the disabled and submit the plan to the
Commissioner of Human Rights as required by Minnesota Statutes 363.073 Subdivision 1.
Notice for Contract and Subcontract. Grantee shall include in any contract or subcontract, in
addition to the provisions to define a sound and complete agreement, such provisions as to
assure contractor or subcontractor compliance with applicable state and federal laws.
Antitrust. The Grantee hereby assigns to the State of Minnesota any and all claims for
overcharges as to goods and/or services provided in connection with this contract resulting
from antitrust violations which arise under the antitrust laws of the United States and the
antitrust laws of the State of Minnesota.
Termination bv the State. The State or commissioner of Administration may cancel this Grant
at any time, with or without cause, upon 30 days' written notice to the Grantee. Upon
termination, the Grantee will be entitled to payment, determined on a pro rata basis, for
services satisfactorily performed.
Termination for Insufficient Fundina. The State may immediately terminate this Grant if it does
not obtain funding from the Minnesota Legislature, or other funding source; or if funding cannot
be continued at a level sufficient to allow for the payment of the services covered here.
Termination must be by written or fax notice to the Grantor. The State is not obligated to pay
for any services that are provided after notice and effective date of termination. However, the
Grantee will be entitled to payment, determined on a pro rata basis, for services satisfactorily
performed to the extent that funds are available. The State will not be assessed any penalty if
the Grant is terminated because of the decision of the Minnesota Legislature, or other funding
source, not to appropriate funds. The State must provide the Grantee notice of the lack of
funding within a reasonable time of the State's receiving that notice.
Amendments. Any amendment to this Agreement shall be in writing, and shall be executed by
either the same persons who executed the original agreement, their successor in office, or by
those persons authorized by the Grantee through a fonnal resolution of its governing body.
Government Data Practices. The Grantee shall comply with the Minnesota Government Data
Practices Act, Chapter 13 and the Conflict of Interest provisions of Minnesota Statutes,
Sections 471.87 - 471.88.
Successors and Assionees. This Agreement shall be binding upon any successors or
assignees of the parties.
Authorized Aaent. The State's authorized agent and contact person responsible for
administration of this Agreement is Cheryl Johnson (or successor) of the Department of Trade
and Economic Development.
Liability. Grantee agrees to indemnify and save and hold Grantor, its agents and employees
hannless from any and all claims or causes of action arising from the perfonnance of the Grant
by Grantee or Grantee's agents or employees. This clause shall not be construed to bar any
legal remedies Grantee may have for the Grantor's failure to fulfill its obligations pursuant to
this Agreement.
SPECIAL CONDITIONS
FOR: Grant Number: CDAP.01-0181-H-FY02
Project Title: CertainTeed Corporation
1. Funds will not be released until the following is submitted to the Grantor and approved:
a) A Letter of Credit from the J.P. Morgan Chase Bank of New York.
b) An executed copy as the construction contract with Adolfsc:in& Peterson
Construction in the amount of $4,560,800.
c) An executed copy of the Contract for Private Development (Tax Abatement) by
the City of Shakopee and Scott County.
d) An executed copy of the city's Revolving Loan Fund Policies and Procedures.
2. The Grantee may not request funds from the Grantor, for disbursement to CertainTeed
Corporation until $4,000,000 of equity has gone into construction of the building and
documentation has been submitted to the City. The remaining $120,800 of equity
funds will be withheld until the company is satisfied that all contractors have completed
work to the satisfaction of the company. Evidence of the remaining funds will be
submitted to the city once the Certificate of Occupancy is issued.
3. The leveraged funds described in the approved Application must be used for the same
purposes and under the same terms, rates, and conditions, as specified in the.
approved application, unless prior written concurrence is received from the Grantor.
4. Grantee must secure from CertainTeed Corporation the necessary documentation that
all project funds have been used for the items and purposes stated in the Grant
Application, prior to requesting grant closeout from the Grantor.
5. The Grantee shall enter into a Loan Agreement with Certain Teed Corporation
(hereafter "Borrower") for Four hundred and forty thousand dollars ($440,000), to be
used for the purposes, conditions and terms as stated in the approved Application, and
may not be modified without prior written approval from the Grantor. The term of the
loan will be 5 years and the interest rate will be 1 % for the term of the loan. Collateral
shall be in the form of a Letter of Credit and personal guaranty.
6. Grantee's attorney must review Loan Agreements, promissory notes, security
agreements, mortgages, guaranty or other documents, if any, considered necessary by
the Grantee to secure the loan to ensure that they are valid, binding and enforceable.
Special conditions 3, 4,9, 10, 11, 12, 13, 14, and 15 included in this Agreement must
be incorporated into the Loan Agreement. A copy of the Loan Agreement, promissory
note, and amortization schedule, and evidence of security filings, must be submitted to
the Grantor for review prior to requesting funds.
7. . Principal and interest payments from the loan to CertainTeed Corporation must be
used to establish and maintain a revolving loan fund. The Grantee must retain financial
control and decision-making authority regarding the use of the repayments from the
loan. However, the Grantee may loan or grant money from its revolving loan fund to a
regional development organization or to a state community-based development
organization for capitalization of a regional or statewide revolving loan fund. The
Grantee must notify the Grantor, in writing, prior to the release of funds to an
organization. The revolving loan fund policies and procedures must be consistent with
the Minnesota Investment Fund Program requirements to further economic
development in the community thereby creating or retaining permanent positions.
8. The Grantee may retain the repayment of the first $1 00,000 of principal plus interest.
After $100,000 principal has been repaid, all subsequent payments of principal and
interest received by the Grantee are to be submitted to the Grantor. The status of
payments shall be reported on the progress reports. In the event the loan is not paid-
in-full, the $100,000 principal and interest the Grantee retains will be reduced
proportionally.
9. The Grantee must include job creation information in each progress report~ This
information must include:
- permanent jObs created -hourly wage - date employee (s) hired
- job title per job -hourly value of benefits - benefits
10. The Grantee must report on permanent job creation until the 44 FTE jobs are created,
all paying $15.00 per hour or more in wages, exclusive of benefits. If CertainTeed
Corporation fails to meet the job creation goal and wage level commitment by the end
date of the grant period, June 30, 2004, the Grantee will be required to return to the
Grantor all or a proportional share of the grant. CertainTeed Corporation identified a
base employment of 233 FT/FTE employees in the Grant Application, which must be
maintained through the end date of the grant period, in addition to the 44 FT/FTE new
jobs created.
11. Minnesota Statutes 116J.993-116J.994 (Business Subsidies Law) applies to this
project. In accordance with these statutes, a business that fails to meet the terms of this
grant agreement, may not receive financial assistance from any grantor for a period of
five years from the date of failure or until the business satisfies its repayment obligation
under this grant agreement. These statutes also require that a business receiving
financial assistance continue operations at the site until June 30,2007. The loan made
under this grant agreement is payable in full if the business does not continue
operations at the site.
12. CertainTeed Corporation must list any vacant or new positions with the Commissioner of
Economic Security or a local service unit operated by a county or counties operating
under a joint powers agreement, one or more cities of the first class operating under a
joint powers agreement, or a city of the first class. CertainTeed Corporation must sign a
First Source Employment Referral Agreement with Economic Security. Minnesota
Statute 268.66 requires that a business receiving in excess of $200,000 from the State
enter into a First Source Agreement.
13. The Grantee must comply with Minnesota Statutes, 290.9705 by either:
a) Depositing with the State 8 percent of every payment made to non-Minnesota
construction contractors where the contract exceeds $100,000; or
b} Receiving an exemption from this requirement from the Minnesota Department of
Revenue.
14. Minnesota Statutes, Section 116J.87.1 applies to this project. This statute requires of
recipients of state assistance to pay the prevailing wage rate to laborers and mechanics
at the project site. The recipient or person benefiting from the financial assistance must
certify to the Commissioner of Labor and Industry that laborers and mechanics assigned
prevailing wage rate is a misdemeanor and is punishable by a fine of not more than
$700, or imprisonment for not more than 90 days or both. Each day a violation of this
subdivision continues is a separate offense. If a subrecipient is in noncompliance with
prevailing wage rate requirements, the Grantee must withhold payment of grant/loan
funds to subrecipient until the Minnesota Commissioner of Labor and Industry indicates
that the subrecipient is in compliance with the prevailing wage requirements.
15. The Grantor may not authorize disbursement of funds if there has been any adverse
change in the company's financial condition, organization, operations or their ability to
repay the project financing.
.
Grant Number: CDAP-D1-D181-H-FY02
Project Title: CertainTeed Corporation
Notice to Grantee
You are required by Minnesota Statutes, Section 270.66, to provide your Minnesota tax identification
number if you do business with the State of Minnesota. This information may be used in the
enforcement of federal and state tax laws. Supplying these numbers could result in action to require you
to tile state tax returns and pay delinquent state tax liabilities. This contract will not be approved unless
these numbers are provided. These numbers will be available to federal and state tax authorities and
state personnel involved in the payment of state obligations.
Minnesota Tax 10: 8025237
Federal Employer 10: 41-6005539
The Grantor and Grantee acknowledge their assent to this agreement and agree to be bound by its
. terms through their signatures entered below.
GRANTEE: I have read andl agree, STATE OF MINNESOTA by and
to all of the above provisions through the Department of
of tht;"?'l) Trade and Economic ~Iopmenl
By I) - By '~~~(,~D_~\'''---'. ~~~
~
Title~()/ Title Commissioner
Date 9~O7- . Date q h~ IG)'
I
By 1 k'lQ ~/L1..~AJi{J ENCUMBERED:
Title Ll-ti ~\.J::t~
C / /' ... Department of Trade and Economic
Date f II I: .... Development
, ,
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i!, f' Iii
,/ :. . ,.-). lof
By r. do( r ,.,_ .:'/ . .'Y . By'
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, 'r.:' /' ( \ '
Title '-/ \..~-t /(c-~.L/ ;< ~[, yc
(; - 1") - r, ~ Date Encumbered
Da te 1._ v [Individual signing certifies that funds have been
encumbered as required by Minnesota Statute
1.6A.J
shakopee062402con.wrd
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RESOLUTION NO. :s (;;,,, "
A RESOLUTION OF THE CITY OF SHAKOPEE
AUTHORIZING APPLICATION TO THE MINNESOTA DEPARTMENT OF TRADE
AND ECONOMIC DEVELOPMENT FOR THE MINNESOTA INVESTMENT FUND
FOR CERT AlNTEED CORPORATION
WHEREAS, the City of Shakopee has reviewed CertainTeed Corporation's
proposed expansion of its manufacturif.lg facility and request for assistance; and
WHEREAS, the City has previously submitted a Part I Application for the
Minnesota Investment Fund and nowwishes to submit a Part 1/ Application.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SHAKOPEE, MINNESOTA AS FOllOWS:
1. That the City of Shakopee act as the legal sponsor for the project contained
in the Business and Community Development Application to be submitted on
March 15, 2002, and that the City Administrator is hereby authorized to apply
to the Department of Trade and Economic Development, for funding of this
project on behalf of the City of Shako pee.
2. That the City of Shako pee has not incurred any costs and has not entered
into any written agreements for purchase of property for the proposed
project.
3. That the City of Shakopee has not violated any Federal, State, or local laws
pertaining to fraud, bribery, kickbacks, collusion, conflict of interest or other
unlawful or corrupt practice.
4. That upon approval of its application by the Department of Trade and
Economic Development on behalf of the State of Minnesota, the City of
Shakopee may enter into an agreement with the State of Minnesota for the
above-referenced project, and that the City of Shakopee certifies that it will
comply with all applicable laws and regulations as stated in all contract
agreements and described on the Compliance Section of the Business and
Community Development Application.
5. As applicable, that the City of Shakopee has obtained credit reports and
credit information from CertainTeed Corporation. Upon review by the City of
Shakopee and its legal counsel, no adverse findings orconcems regarding,
but not limited to, tax liens, judgments, court actions, and filings with state,
federal and other regulatory agencies were identified. Failure to disclose any
such adverse information could result in revocation or other legal action.
f' s-f :It,
-
.
-
6. That the City Administrator is hereby authorized .to execute such
agreements, and amendments thereto, as are necessary to implement the
project on behalf of the City of Shakopee.
Adopted in ~ session of the .cz Council of Shakopee,
Minnesota, held thi. -1!1 day of 1rJ~A.r. . , 2002.
k>~ r1 ~
Mayor of the City of Shakopee
1tx2.~
City Administrator
ATTEST:
G(l.~aft;~.?Ud ~
.city Clerk ./
PREPARED BY:
City of Shakopee
129 South Holmes Street
Shakopee, MN 55379
p. S-y ~I
-eilll'b/f .B>
-
LOAN AGREEMENT FOR LOAN OF
MINNESOTA INVESTMENT FUND GRANT
THIS AGREEMENT is made and entered into as the _ day of November, 2004, by and
between the City of Shakopee, Minnesota, a public body corporate and politic existing under the
Constitution and the laws of the State of Minnesota (the "City") and Challenge Printing, a
Minnesota corporation (the "Developer");
WITNESSETH:
WHEREAS, the City has applied to the Minnesota Department of Employment and
Economic Development for a Minnesota Investment Fund Grant (the "MIF Grant") pursuant to
an application (the "Grant Application") and received approval for the MIF Grant; and
WHEREAS, Grant Agreement Number CDAP-OI-0181-H-FY02 (the "Grant
Agreement") between the Minnesota Department of Employment and Economic Development
and the City has been executed and requires that the Developer provide sufficient funds to
complete financing and agree to certain loan terms with the City regarding the MIF Grant; and
WHEREAS, the parties hereto agree to incorporate into this Agreement by reference said
Grant Application and Grant Agreement as if fully set forth herein word for word;
NOW THEREFORE, it is agreed by and between the parties hereto as follows:
251159v.3 (JAB) 1
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ARTICLE I
Definitions
Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears
from the context:
"City" means the City of Shakopee, Minnesota.
"Developer" means Challenge Printing, Inc., a Minnesota corporation, or its permitted successors
and assigns.
"Development Property" means the real property legally described as Lot 1, Block 1, Plat # 27154,
Valley Park 9th Addition.
"Facility" means a 74,260 square foot manufacturing, office, and warehouse facility, constructed as
an expansion of an existing manufacturing facility on the Development Property.
"Equipment" means the machinery and equipment purchased by the Developer with the Loan and
described in Exhibit A hereto.
"Event of Default" means those events described in Section 4.1 hereof.
"Grant Agreement" means Minnesota Department of Employment and Economic Development
Grant Agreement # CDAP-OI-OI81-H-FY02.
"Grantor Agency" means the Minnesota Department of Employment and Economic
Development.
"Initial Disbursement Date" means the date of the first disbursement of any Loan Proceeds by the
City to the Developer.
"Leveraged Funds" means the funds described in Section 2.2. of this Agreement.
"Loan" means the loan made by the City to the Developer pursuant to this Agreement.
"Loan Proceeds" means the funds disbursed to the Developer pursuant to this Agreement and any
proceeds thereof.
"MIF" means the Minnesota Investment Fund.
"MIF Grant" means the grant of funds by the Grantor Agency to the City pursuant to the Grant
Agreement.
"Project" means the Developer's purchase of the Equipment with the assistance of the Loan.
251159v.3 (JAE) 2
SH235-16
"Promissory Note" means a promissory note in the form attached as Exhibit C.
"Security Agreement" means a security agreement in the form attached as Exhibit B.
"State" means the state of Minnesota.
"Termination Date" means the date the Developer has repaid the Loan in full.
ARTICLE II
Financin2 for the Facilitv and Project
Section 2.1. Proiect Financing. The Developer has secured a commitment for the
financing necessary to complete the Facilities, including the purchase of necessary equipment,
including but not limited to the Equipment (the VLF Magnus Platesetter, as described in Exhibit
A) , in a form and under conditions satisfactory to the Developer.
Section 2.2. Developer's Equity. The Developer shall commit not less than $1,310,000
of equity and not less than $17,150,000 of other financing (exclusive of the Loan) to be used for
the completion of the Facility and the Project.
Section 2.3. MIF Loan/Grant. The MIF Grant will be used by the City to make a loan to
the Developer of not more than $440,000 for the purchase of the Equipment (the VLF Magnus
Platesetter, as described in Exhibit A). The City's obligations under this Agreement are
expressly contingent on the City's receipt of funds from the Grantor Agency in an amount
adequate to make the Loan.
ARTICLE III
MIF Loan Terms and Conditions
Section 3.1. Basic Loan. Terms. The principal amount of the Loan shall not exceed
$440,000. The Loan shall bear interest at a rate of two percent (2.00%) per annum. The Loan
terms may not be modified without prior written approval from the Grantor Agency. The Loan
shall be used exclusively for the purchase of the Equipment (the VLF Magnus Platesetter, as
described in Exhibit A). The term of the Loan is set forth in Section 5.4 of this Agreement.
Section 3.2. Prepayment. Prepayment of the Loan may occur at any time without
penalty.
Section 3.3. Assignment. If, prior to the Termination Date, the Developer sells, conveys,
transfers, further mortgages or encumbers, or disposes of the Development Property, or any part
thereof or interest therein, or enters into an agreement to do any of the foregoing, the Developer
shall immediately repay all amounts then outstanding on the Loan. This shall be in addition to
any other remedies at law or equity available to the City.
251159v.3 (JAE) 3
SH235-16
Section 3.4. Termination. This Agreement shall automatically terminate without any
notice to Developer: (1) if no Loan Proceeds have been disbursed to the Developer prior to
December 31, 2004; or (2) if: (a) the Developer has not received any disbursement of Loan
Proceeds from the City; and (b) the Developer fails to pay its debts as they become due, makes an
assignment for the benefit of its creditors, admits in writing its inability to pay its debts as they
become due, files a petition under any chapter of the Federal Bankruptcy Code or any similar
law, state or federal, now or hereafter existing, becomes "insolvent" as that term is generally
defined under the Federal Bankruptcy Code, files an answer admitting insolvency or inability to
pay its debts as they become due in any involuntary bankruptcy case commenced against it, or
fails to obtain a dismissal of such case within sixty (60) days after its commencement or convert
the case from one chapter of the Federal Bankruptcy Code to another chapter, or is the subject of
an order for relief in such bankruptcy case, or is adjudged a bankrupt or insolvent, or has a
custodian, trustee, or receiver appointed for it, or has any court take jurisdiction of its property, or
any part thereof, in any proceeding for the purpose of reorganization, arrangement, dissolution, or
liquidation, and such custodian, trustee, or receiver is not discharged, or such jurisdiction is not
relinquished, vacated, or stayed within sixty (60) days ofthe appointment.
Section 3.5. Promissory Note. Before any disbursement of Loan Proceeds by the City to
the Developer, the Developer shall execute and deliver to the City a promissory note in
substantially the form set forth at ExhibitC (the "Note").
ARTICLE IV
Default and Collateral
Section 4.1. Default. The Developer shall be in default under this Agreement upon.the
happening of anyone or more of the following events ("Events of Default"):
(a) the Developer fails to pay when due any amount payable on the Loan and such
nonpayment is not remedied within ten (10) business days after written notice thereof to the
Developer by the City;
(b) the Developer is in breach of any material respect of any obligation or agreement
under this Agreement or the Note (other than nonpayment of any amount payable on the Loan,
for which no period to cure shall be permitted) and remains in breach in any material respect for
thirty (30) business days after written notice thereof to the Developer by the City; provided,
however, that if such breach shall reasonably be incapable of being cured within such thirty (30)
business days after notice, and if the Developer commences and diligently prosecutes the
appropriate steps to cure such breach, no default shall exist so long as the Developer is
proceeding to cure such breach;
(c) if any material covenant, warranty, or representation of the Developer shall prove
to be untrue in any material respect, provided such covenant, warranty or representation of the
Developer remains untrue in any material respect for thirty (30) business days after written notice
251 1 59v.3 (JAE) 4
SH235-16
thereof to the Developer by the City; provided, however, that if such untruth shall reasonably be
incapable of being corrected within such thirty (30) business days after notice, and if the
Developer commences and diligently prosecutes the appropriate steps to correct such untruth, no
default shall exist so long as the Developer is so proceeding to correct such untruth;
(d) the Developer, on or after the Initial Disbursement Date, fails to pay its debts as
they become due, makes an assignment for the benefit of its creditors, admits in writing its
inability to pay its debts as they become due, files a petition under any chapter of the Federal
Bankruptcy Code or any similar law, state or federal, now or hereafter existing, becomes
"insolvent" as that term is generally defined under the Federal Bankruptcy Code, files an answer
admitting insolvency or inability to pay its debts as they become due in any involuntary
bankruptcy case commenced against it, or fails to obtain a dismissal of such case within sixty
(60) days after its commencement or convert the case from one chapter of the Federal
Bankruptcy Code to another chapter, or be the subject of an order for relief in such bankruptcy
case, or be adjudged a bankrupt or insolvent, or has a custodian, trustee, or receiver appointed for
it, or has any court take jurisdiction of its property, or any part thereof, in any proceeding for the
purpose of reorganization, arrangement, dissolution, or liquidation, and such custodian, trustee,
or receiver is not discharged, or such jurisdiction is not relinquished, vacated, or stayed within
sixty (60) days of the appointment;
(e) a final judgment is entered against the Developer that the City reasonably deems
will have a material, adverse impact on the Developer's ability to comply with the Developer's
obligations under this Agreement;
(f) the Developer sells, conveys, transfers, encumbers, or otherwise disposes of all or
any part of the Development Property or the Equipment (the VLF Magnus Platesetter, as
described in Exhibit A) without the prior written approval of the City;
(g) the Developer merges or consolidates with any other entity without the prior
written approval ofthe City;
(h) there is a loss, theft, substantial damage, or destruction of all or any part of the
Equipment (the VLF Magnus Plates etter, as described in Exhibit A) that is not remedied to the
City's satisfaction within sixty (60) business days after written notice thereof by the City to the
Developer; or
(i) there is a default by the Developer on any other agreement between the Developer
and the City,. the Developer and the State, the Developer and Scott County, Minnesota, or the
Developer and the Economic Development Authority for the City of Shakopee, including but not
limited to the Contract for Private Redevelopment.
Section 4.2. Remedies Upon Default.
(a) Upon the occunence of an Event of a Default, the City shall have the right as its
option and without demand or notice, to declare all or any part of the Loan immediately due and
251159v.3 (JAE) 5
SH235-16
payable, and in addition to the rights and remedies granted hereby, the City shall have all of the
rights and remedies available under the Uniform Commercial Code and any other applicable law.
(b) Upon the occunence of an Event of a Default, the Developer agrees to make the
Equipment (the VLF Magnus Platesetter, as described in Exhibit A) available to the City. The
Developer agrees to pay the costs and expenses incurred by the City in enforcing its rights under
this Agreement, including but not limited to the City's attorneys fees. If any notice of sale,
disposition or other intended action by the City is required by law to be given to the Developer,
such notice shall be deemed reasonably and properly given if mailed to the Developer at its
address listed in Section 11.9 hereof, at least fifteen (15) days before such sale, disposition or
other intended action.
Section 4.3. Collateral. The Developer shall grant to the City a first security interest in
the Equipment (the VLF Magnus Platesetter, as described in Exhibit A) in an amount equal to the
amount of the Loan disbursed hereunder pursuant to a Security Agreement in substantially the
form set forth in Exhibit B.
Section 4.4. Default on Business.Subsidy Act Requirements.
(a) Upon the occunence of an Event of Default arising from a breach by the Developer of
any provision of Section 7.1 of this Agreement, if the implicit price deflator as defined in
Minnesota Statutes, Section 275.50, Subdivision 2 exceeds two percent (2%) on the date of the
earliest such Event of Default, the Developer shall, in addition to any other payment required
hereunder, pay to the City the difference between the present value of the interest actually paid
and accrued on the Loan as of the date of the payment required by this Section 4.4 and the
amount of interest that would have been paid and accrued on the Loan if the interest rate on the
Loan at all times had been equal to the implicit price deflator on the date of the earliest Event of
Default.
(b) Nothing in this Section 4.4 shall be construed to limit the City's rights or remedies
under any other provision of this Agreement, and the provisions of Section 4.4(a) are in addition
to any other such right or remedy the City may have available.
251 1 59v.3 (JAE) 6
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ARTICLE V
Loan Disbursement Provisions
Section 5.1. Payment Requisition Documentation and Format. Loan disbursements shall
be for the purchase of the Equipment (the VLF Magnus Platesetter, as described in Exhibit A)
and shall not exceed $440,000. The Loan shall be disbursed to the Developer only after the City
has received from the Developer an invoice or invoices for the cost of the Equipment (the VLF
Magnus Platesetter, as described in Exhibit A). Upon receipt of such invoice or invoices, the
City shall disburse the amount of the invoice or invoices to the Developer, in an amount not to
exceed $440,000.
Section 5.2. Provision for Evidentiary Materials. No disbursements of Loan funds shall
be made until all evidentiary materials required by the Grantor Agency have been submitted and
approved by the Grantor Agency. These evidentiary materials shall include, but not necessarily
be limited to, the materials described in Articles II and VI of this Agreement and the invoices
described in Section 5.1.
Section 5.3. Project Time Frame. The time frame outlined in the Grant Application
pertaining to the Project shall be met by the Developer.
Section 5.4. Loan Term. The term of the Loan shall be seven (7) years, commencing on
the hIitial Disbursement Date. The Loan shall bear interest at a rate oftwo percent (2.00%) per
annum, with interest commencing to accrue on the hIitial Disbursement Date.
Section 5.5. Loan Repayments Schedule. Payments of principal and interest shall
commence on the first day of the month immediately following the hIitial Disbursement Date,
and shall continue in equal installments on the first day of each and every month thereafter until
paid in full. Such payments shall fully amortize the Loan over 84 months, with all outstanding
principal and interest due on the first day of the 85th month following the Initial Disbursement
Date.
Section 5.6. Leveraged Funds. The Leveraged Funds must be used for the same purposes
and under the same terms, rates, and conditions as specified in the Grant Application unless prior
written consent is received from the Grantor Agency.
Section 5.7. Disbursement of Funds. Without limitation of any other provision in this
Agreement, the Grantor may withhold disbursement of any or all of the Loan if, prior to such
disbursement, there has been any adverse change in the Developer's financial condition,
organization, operations, or ability to repay the Loan.
251159v.3 (JAE) 7
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ARTICLE VI
Provision of Evidentiary Material ReQuirement
Section 6.1. Provision of Evidentiary Materials. In addition to those materials described
in Section 5.2 of this Agreement, the Developer shall provide the City with all evidentiary
materials according to the format and timetable cited in the Grant Agreement. The City will
forward these materials to the Grantor Agency and assist in expediting reviews leading to a
release of the Loan.
Section 6.2. Documentation of Use of Funds. The Developer must provide the City with
necessary documentation that the Loan and the Leveraged Funds have been used for the items
and purposes stated in the Grant Application prior to submitting the final progress report and
requesting grant closeout from the Grantor Agency.
ARTICLE VII
Provision of New Permanent Jobs
Section 7.1. Business. Subsidy Agreement. The provisions of this Section constitute the
"business subsidy agreement" for purposes of the Minnesota Business Subsidy Act (Minnesota
Statutes, Sections 1 16J.993 - 995).
(a) The parties agree and represent to each other as follows:
(i) The subsidy provided to the Developer includes the Loan Proceeds loaned
to the Developer in an amount not to exceed $440,000 pursuant to this Agreement.
(ii) The public purposes of the subsidy are to provide employment
opportunities and increase the tax base ofthe City and the State.
(iii) The goals for the subsidy are: to ensure development of the Development
Property; to maintain the Development Property as a manufacturing, warehouse, and
related office facility, and to create the jobs and wage levels in accordance with Section
7.1(b) hereof.
(iv) If the goals described in clause (iii) are not met, the Developer must make
the payments to the City described in Section 7.1(c).
(v) The subsidy is needed to induce the Developer 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 Developer operates an existing facility in another City within
the State at a site that cannot accommodate operations without expansion. Absent the
subsidy provided in this Agreement and the Contract for Private Redevelopment, the
expansion would likely occur in another state or outside the United States.
251 159v.3 (JAE) 8
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(vi) The Developer must continue operation of the Facilities as a
manufacturing, warehouse, and related office facility through the life of the Loan, or for
at least five years after the date of issuance of the Benefit Date, whichever is later.
(vii) Challenge Printing, Inc. is owned by Robert J. Lothenbach. Lothenbach
Properties I, LLC is a wholly owned corpora!ion and does not have a parent corporation.
The sole member of Lothenbach Properties I, LLC is National Safe Harbor Exchanges, a
California corporation. Pursuant to an exchange agreement, Lothenbach Properties will
be solely owned by Robert J. Lothenbach after the expiration of the time period for a like-
kind exchange pursuant to Section 1031 of the Internal Revenue Code of 1986, as
amended.
(viii) The Developer has received or expects to receive the following financial
assistance from other "grantors" as defined in the Business Subsidy Act: property tax
increment financing from the City and Economic Development Authority for the City of
Shakopee, Minnesota in the amount of $513,900 and a Minnesota Job Skills Partnership
grant in the amount of $400,000 or such other amount as is awarded by the Minnesota
Department of Employment and Economic Development.
(b) By no later than October 1,2006 (the "Compliance Date") and contipuing through
at least the Compliance Date, the Developer shall create at least eighty (80) new full-time
equivalent jobs (the "New Jobs") on the Development Property (excluding the three hundred and
eighty (380) jobs previously existing on the Development Property as of August 5, 2004 which
must also be maintained from the date of this Agreement through at least the Compliance Date).
The New Jobs must pay a wage of at least $12.00 per hour, exclusive of benefits. If Challenge
Printing, Inc. fails to meet the job creation goal and wage level commitment by the end date of
the grant period of October 1, 2006, the Developer will be required to return to the Grantor all or
a proportionate share of the Grant.
Section 7.2. Employment Documentation. The Developer shall annually complete and
provide to the City notification of employment of hiring each new employee. This notification
requirement must be submitted to the city no later than January 25 each year and shall terminate
on October 1, 2006 (the "Compliance Date") if the Developer is not then in breach of
Section 7.1.
Section 7.3. Job Creation Documentation. Until the Compliance Date, the Developer
shall submit to the City a written report by January 25 of each year in sufficient detail to enable
the City to determine compliance with this Article 7. That information shall be provided by the
Developer and must include at a minimum:
(a) the number of New Jobs created and the dates on which each were created and
filled; and
251159v.3 (JAE) 9
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(b) the job title, wages, and benefits and hourly value of such benefits for each New
Job.
Section 7.4. First Source Employment Agreement. The Developer shall list any vacant
or new positions with the jobs services of the Commissioner of Job Services or a local service
unit operated by a county or counties operating under a joint powers agreement, one or more
cities ofthe first class operating under a joint powers agreement, or a cityofthe first class.
ARTICLE VIII
Provision of Monitoring Information Related To Proiect Progress
Section 8.1. Provision of Progress Information. The Developer shall provide to the City
information for incorporation into progress reports, as required by the Grantor Agency and as
needed by the City, to monitor project implementation for compliance with Grantor and local
guidelines.
ARTICLE IX
Nondiscrimination: Withholding; Prevailing Wages
Section 9.1. Nondiscrimination. The provisions of Minnesota Statutes, Section 181.59,
which relate to civil rights and discrimination, shall be considered a part of this Agreement as
though wholly set forth herein and the Developer shall comply with each such provision
throughout the term ofthis Agreement.
ARTICLE X
Developer's Acknowledgments Representation, and Warrants
Section 10.1. Acknowledgments.
(a) The Developer acknowledges that the City, in order to obtain funds for part of the
City's activities in connection with the Project, has applied for the MIF Grant to the Grantor
Agency under the Minnesota Investment Fund Program, Business and Community Development
Division, and that the City has entered into the Grant Agreement with the Grantor Agency,
setting forth the terms, conditions, and requirements of the MIF Grant. The Developer further
acknowledges that it has made certain representations and statements in the Grant Application
concerning its activities relating to the Project, and that the Developer is designated and
identified under the Grant Agreement.
(b) A copy of the Grant Agreement shall be on file in the offices of the City. In the
event any provision of this Agreement relating to the Developer's obligations hereunder is
inconsistent with the provisions of the Grant Agreement relating to the Developer's activities
thereunder, the provisions of the Grant Agreement shall prevail.
251159v.3 (JAE) 10
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(c) The Developer acknowledges that nothing contained in the Grant Agreement or
this Agreement, nor any act of the Grantor Agency or the City, shall be deemed or construed to
create between the Grantor Agency and the Developer any relationship (except as borrower and
lender between the City and the Developer), including but not limited to that of third-party
beneficiary, principal and agent, limited or general partnership, or joint venture.
Section 10.2. Representations and Warranties. The Developer warrants and represents,
in connection with the MIF Grant and for the benefit of the Grantor Agency and the City, that:
(a) Representations, statements, and other matters provided by the Developer relating
to the Facilities and the Project to be completed by the Developer, which were contained in the
Grant Application, were true and complete in all material respects as of the date of submission to
the City and that such representations, statements, and other matters are true as of the date of this
Agreement and that there have been no adverse material changes in the financial. condition of the
Developer's business since the date of the Grant Application.
(b) To the best of the Developer's knowledge, none of its officers, employees,
designees or agents, consultants, nor any officer or employee of the City, or member of the
governing body of the City, and no other public official of the City, who exercises or has
exercised any functions or responsibilities with respect to the Project during his or her tenure
shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof,
for work to be performed in connection with the Facilities or the Project or in any activity, or
benefit therefrom, which is part ofthe Facilities or the Project.
(c) The Developer acknowledges that the Grantor Agency, in selecting the City as
recipient of the Grant, relied in material part upon the assured completion ofthe Facilities or the
Project to be carried out by the Developer, and the Developer warrants that the construction of
the Facilities and the completion ofthe Project will be carried out by the Developer.
(d) The Developer warrants that to the best of its knowledge, it has obtained all
federal, state, and local governmental approvals, reviews, and permits required by law to be
obtained in connection with the Development Property or the Facilities and has undertaken and
completed all actions necessary for it to lawfully execute this Agreement as binding upon it.
(e) The Developer warrants that it shall keep and maintain books, records, and other
documents relating directly to the Leveraged Funds, and that any duly authorized representative
of the Grantor Agency shall, at all reasonable times, have access to and the right to inspect, copy,
audit, and examine all such books, records, and other documents of the Developer until such time
that the City and the Grantor Agency have both determined that all issues, requirements, and
close-out procedures relating to or arising out of the MIF Granthave been settled and completed.
(f) The Developer warrants that no transfer of any or all of the Loan Proceeds by the
City to the Developer shall be or be deemed an assignment of Loan Proceeds, and the Developer
shall neither succeed to any rights, benefits, or advantages of the City under the Grant
2511 59v.3 (JAE) 11
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Agreement, nor attain any right, privileges, authorities, or interest in or under the Grant
Agreement.
(g) The Developer warrants that it has fully complied with all applicable local, state,
and federal laws pertaining to its business and will continue such compliance throughout the term
of this Agreement. If at any time notice of noncompliance is received by the Developer, the
Developer agrees to take any necessary action to comply with the local, state, or federal law in
question.
ARTICLE XI
Other Special Conditions
Section 11.1. Antitrust. The Developer hereby assigns to the State of Minnesota any and
all claims for overcharges as to goods and services provided in connection with this Agreement
resulting from antitrust violations that arise under the antitrust laws of the United States or the
antitrust laws of the State.
Section 11.2. Workers Compensation Insurance. The Developer has obtained workers
compensation insurance as required by Minnesota Statutes, Section 176.181, subd. 2. The
Developer's workers compensation insurance information is as follows:
(a) Company Name:
(b) Policy Number:
(c) Local Agent:
Section 11.3. Business with the State of Minnesota/State Tax Laws. The Developer is
required by Minnesota Law to provide its Minnesota tax identification number if it does business
with the State of Minnesota. This information may be used in the enforcement of Federal and
State tax laws. Supplying these numbers could result in an action to require the Developer to file
State tax retums and pay delinquent State tax liabilities. This Agreement will not be approved
unless these numbers are provided. These numbers will be available to Federal and State tax
authorities and State personnel involved in the payment of State obligations.
Minnesota Tax ID:
Federal Employer ID:
Section 11.4. Grant Closeout. The Developer shall, prior to grant closeout from the
Grantor Agency, provide the City with all documentation necessary to demonstrate that the Loan
has been used for the items and purposes set forth in the Grant Application, such documentation
to be in the form required by the Grantor Agency in its sole discretion.
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Section 11.5. Review of Documents. The Developer shall not be entitled to any
disbursement of Loan Proceeds until the City's legal counsel and the Grantor Agency have
reviewed and approved this Agreement and the exhibits attached hereto.
Section 11.6. Effect on Other Agreements. Nothing in this Agreement shall be construed
to modify any term of any other agreement to which the City and the Developer are parties.
Section 11.7. Release and Indemnification Covenants. Except for any breach of the
representations and warranties of the City or the negligence or other wrongful act or omission of
the following named parties, the Developer agrees to protect and defend the City and the
governing body members, officers, agents, servants, and employees thereof, 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 the
acquisition, construction, installation, ownership, maintenance, and operation of the Facilities or
the Project and the Developer's activities on the Development Property.
Section 11.8. Modifications. This Agreement may be modified solely through written
amendments hereto executed by the Developer and the City and approved by the Grantor
Agency.
Section 11.9. Notices and Demands. Any notice, demand, or other communication under
this Agreement by either party to the other shall be sufficiently given or delivered only if it is
dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered
personally:
(a) as to the City: City of Shakopee
129 Holmes Street South
Shakopee,MN 55379-1328
Attn: Administrator
(b) as to the Developer: Challenge Printing, Inc.
Attn:. Treasurer
1000 Valley Park Drive
Shakopee, Minnesota 55379
or at such other address with.respect to any party as that party may, from time to time, designate
in writing and forward to the others as provided in this Section 11.9.
Section 11.10. Conflict of Interests: Representatives Not Individuallv Liable. No officer
or employee of the City may acquire any financial interest, direct or indirect, in this Agreement,
the Facilities, the Project or the Development Property or in any contract related thereto. No
officer, agent, or employee of the City shall be personally liable to the Developer or any
successor in interest in the event of any default or breach by the City or for any amount that may
become due to the Developer or on any obligation or term ofthis Agreement.
251 1 59v.3 (JAE) 13
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Section 11.11. Binding Effect. The covenants and agreements in this Agreement shall
bind and benefit the heirs, executors, administrators, successors, and assigns of the parties to this
Agreement.
Section 11.12. Provisions Not Merged With Deed. None of the provisions of this
Agreement are intended to or shall be merged by reason of any deed transferring any interest in
the Development Property and any such deed shall not be deemed to affect or impair the
provisions and covenants of this Agreement.
Section 11.13. Titles of Articles and Sections. Any titles of the several parts, Articles,
and Sections of this Agreement are inserted only for convenience of reference and shall be
disregarded in construing or interpreting any of its provisions.
Section 11.14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 11.15. Choice of Law and Venue. This Agreement shall be governed by and
construed in accordance with the laws of the state of Minnesota without regard to its conflict of
laws provisions. Any disputes, controversies, or claims arising out of this Agreement shall be
heard in the state or federal courts of Minnesota, and all parties to this Agreement waive any
objection to the jurisdiction of these courts, whether based on convenience or otherwise.
Section 11.16. Waiver. The failure or delay of any party to take any action or assert any
right or remedy, or the partial exercise by any party of any right or remedy shall not be deemed to
be a waiver of such action, right, or remedy if the circumstances creating such action, right, or
remedy continue or repeat.
Section 11.17. Entire Agreement. This Agreement, with the exhibits hereto, constitutes
the entire agreement between the parties pertaining to its subject matter and it supercedes all
prior contemporaneous agreements, representations, and understandings of the parties pertaining
to the subject matter ofthis Agreement.
Section 11.18. Separability. Wherever possible, each provision of this Agreement and
each related document shall be interpreted so that it is valid under applicable law. If any
provision of this Agreement or any related document is to any extent found invalid by a court or
other governmental entity of competent jurisdiction, that provision shall be ineffective only to the
extent of such invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Agreement or any other related document.
Section 11.19. Immunity. Nothing in this Agreement shall be construed as a waiver by
the City of any immunities, defenses, or other limitations on liability to which the City is entitled
by law, including but not limited to the maximum monetary limits on liability established by
Minnesota Statutes, Chapter 466.
25] ]59v.3 (JAE) 14
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IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its
name and behalf and the Developer has caused this Agreement to be duly executed in its name
and behalf as of the date first above written.
CITY OF SHAKO PEE
By
Its Mayor
By
Its City Administrator
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CHALLENGE PRINTING, INC.
By
Its
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EXHIBIT A
DESCRIPTION OF EQUIPMENT
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EXHIBIT B
SECURITY AGREEMENT
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EXHIBIT C
PROMISSORY NOTE
$440,000.00 ,2004
Challenge Printing, Inc., a Minnesota corporation (the "Borrower"), for value received,
hereby promises to pay to the City of Shakopee (the "City") or its assigns (the City and any
assigns are hereinafter referred to as the "Holder"), at its designated principal office or such other
place as the Holder may designate in writing, the principal sum of Four Hundred Forty Thousand
and Noll 00 Dollars ($440,000) or so much thereof as may be advanced under this Note, with
interest as hereinafter provided, in any coin or currency which at the time or times of payment is
legal tender for the payment of private debts in the United States of America. The principal of
this Note is payable in installments due as follows:
1. This Note shall bear interest at a rate of2.00% per annum and interest shall accrue
on the amount of Loan Proceeds (as defined in the Loan Agreement for Loan of Minnesota
Investment Fund Grant, dated November _, 2004, between the Borrower and City (the "Loan
Agreement")), disbursed to the Bon-ower from the date or dates of such one or more
disbursements until the Loan (as defined in the Loan Agreement) is repaid in full.
2. Payments of principal and interest due under this Note shall commence on the
first day of the first month immediately following the Initial Disbursement Date (as defined in
the Loan Agreement) and shall continue in equal installments on the first day of each and every
month thereafter until paid in full. Such payments shall fully amortize the Loan over 84 months,
with all outstanding principal and interest due on the first day of the 85th month following the
Initial Disbursement Date.
3. The Borrower shall have the right to prepay the principal of this Note, in whole or
in part, without prepayment penalty.
4. This Note is given pursuant to the Loan Agreement and is secured by a Security
Agreement, dated November _, 2004, from the Borrower to the City (the "Security
Agreement").
All of the agreements, conditions, covenants, provisions, and stipulations contained in the
Loan Agreement, the Security Agreement, or any other instrument securing this Note are hereby
made a part of this Note to the same extent and with the same force and effect as if they were fully
set forth herein. It is agreed that time is of the essence of this Note. If an Event of Default occurs
under the Loan Agreement, the Security Agreement, or any other instrument securing this Note,
then the Holder of this Note may at its right and option, without notice, declare immediately due
and payable the principal balance of this Note and interest accrued thereon, together with
reasonable attorneys fees and expenses incurred by the Holder of this Note in collecting or
enforcing payment hereof, whether by lawsuit or otherwise, and all other sums due hereunder or
251159v.3 (JAE) C-l
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any instrument securing this Note. The Borrower agrees that the Holder of this Note may, without
notice to and without affecting the liability of the Borrower, accept additional or substitute security
for this Note, or release any security or any party liable for this Note or extend or renew this Note.
5. The remedies of the Holder of this Note as provided herein, and in the Loan
Agreement, or any other instrument securing this Note, shall be cumulative and concurrent and
may be pursued singly, successively, or together, and, at the sole discretion of the Holder of this
Note, may be exercised as often as occasion therefor shall occur; and the failure to exercise any
such right or remedy shall in no event be construed as a waiver or release thereof.
The Holder of this Note shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in writing and signed
by the Holder of this Note and then only to the extent specifically set forth in the writing. A
waiver with reference to one event shall not be construed as continuing or as a bar to or waiver of
any right or remedy as to a subsequent event. This Note may not be amended, modified, or
changed except only by an instrument in writing signed by the party against whom enforcement
of any such amendment, modifications, or change is sought.
6. This Note shall be governed by and construed in accordance with the Jaws of the
state of Minnesota without regard to its conflict of laws provisions. Any disputes, controversies,
or claims arising out of this Note shall be heard in the state or federal courts of Minnesota, and
all parties to this Note waive any objection to the jurisdiction of these courts, whether based on
convenience or otherwise.
7. The headings used in this Note are solely for convenience of reference, are no part
ofthis Note, and are not to be considered in construing or interpreting this Note.
8. Wherever possible, each provision of this Note and each related document shall
be interpreted so that it is valid under applicable law. If any provision of this Agreement or any
related document is to any extent found invalid by a court or other governmental entity of
competent jurisdiction, that provision shall be ineffective only to the extent of such invalidity,
without invalidating the remainder of such provision or the remaining provisions of this Note or
any other related document.
9. IT IS HEREBY CERTIFIED AND RECITED that all conditions, acts, and things
required to exist, happen, and be performed precedent to or in the issuance of this Note do exist,
have happened, and have been performed in regular and due form as required by law.
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IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed as of
the _day of ,2004.
By
Its
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