91-1413 I
��RIG��1�►i. �
` � ' � Council File # .� �, ,
IGreen Sheet # ,��
RESOLUT�ON � ''
CI F SAINT PAUL, MINN�SOTA � �
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Presented By
�Referred To � Committee: Date —(— 'J�/
RESOLUTION APPROVING THE EXECUTT�N OF A
SECOND AMENDED AND RESTATED JOINT POWE S AGREEMENT
FOR THE ENERGY PARK AND TWIN CITY�CESTING
TAX.INCREMENT DISTRICT'S
AND APPROVING THE ISSUANCE OF BOND$ BY THE
PORT AUTHORITY OF THE CITY OF ST.IPAUL
IN CONNECTION WITH THAT PROJECT
WHEREAS:
1. The City Council of the City of Saint Paul has previously adopted its Resolution C.F.No.91-355,pursuant
to Minnesota Sta+utes, Section 469.174 to 469.179 and Sections 46^.124 to 469.134,approved certain matte;s pertaining to
the Energy Park and Twin City Testing Tax Increment District,particularly as they�elated to the relocating of the Frst Bank
Operations Division to the former ETA Building in Energy Park(the "Project"); �nd � �`:
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2. Additional negotiations have been undertaken in connection �7th the Project, including'negotiations
betwe�n the kort Authority of the City of Saint Paul (the "Port Authority") and the Executive Director of the`.S�inf'Paut
Department af Planning and Economic Development,pertaining to certain agreem°nts relating to the Energy Park'and Twin
City Testing T� Increment District, which agreements are more fulty set forth in the staff report provided to the.City
Coun_cil; and
3. Implementation of the agreements which have been reached bet�veen the City and the Port Authority will
require the execution of a Second Amended and Restated 7oint Powers Agreem,l nt, and a Development Agreement, in
substantially the form which has been provided to the Ci_ty Council; and
4. The Port Authority has adopted Resolutions giving its preliminary approval to the issuance of taxable tax
increment bonds by the Port Authority in the appro�mate principal amounts of:�$3,610,000 to be used to provide funds
to pay for certain of the costs incuned in the Project; $3,500,000 to redeem the o tstanding Twin City Testing Bonds; and
$640,000 in face amount of capital appreciation bonds accreting to a par value at turity of$3,000,000 to reduce stress on
the Energy Park Tax Increment District in the earlier years (collectively the "Bon�s");.and
5. The Bonds are to be paid from Energy Park Tax Increment�, pursuant to the terms of the Second
Amended and Restated Joint Powers Agreement referred to above; and I
6. Laws of Minnesota 1976, Chapter 234,provides that any issue f revenue bonds authorized by the Port
Authority shall be issued only with the consent of the City Council of the City�f Saint Paul, by resolution adopted in
accordance with law;
7. The Port Authority has requested that the City Council(a)give its requisite consent pursuant to said law
to facilitate the issuance of the bonds referred to herein by the Port Authority,subj ct to final approval of the detaits of said
issues by the Port Authority and(b)authorize the execu[ion of the Second Amende�l and Restated Joint Powers Agreement �,�
and Development Agreement, referred to above. '•..`'�
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RESOLVED: .`I
1. The City Council hereby approves the execution of the Second I Amended and It�stated,Joint Powers
Agreement and Development Agreement in substantialty the forms cunently on fi�e, to reflect-t�ie�reorde,�:i� of'the TaX x.:. �
Increment priorities and the other agreements reached between the Port Authori nd the Ci g�
ty$ `�if Saint Paul with respect� ��A'�
to the Energy Park Tax Increment District in general and the Project,in particular; all as more fully set forth in the staff
report and this Resolution.
2. In accordance with Laws of Minnesota 1976,Chapter 234,the City�Councii hereby consents to the issuance
of the aforesaid Bonds for the purpose described,the exact details of which,includin�,but not limited to,provisions relating
to principal amount,maturities,interest rates,discount and redemption are to be determined by the Port Authority,pursuant
to a resolution to be adopted by the Port Authority,and the City Council hereby authlorizes the issuance of additional bonds
found by the Port Authority to be necessary to refund the Bonds.
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Yeas Navs Absent Requested bylDepartment of:
imon
onv=tZ �— Planning andlEconomic Development
Maccabee 1
ettman -�
�n e
i son gy;
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Adopted by� Council: Date AUG i 5 igg� Form Approvedlby Cit Attorney
Adoption Certified by Council Secretary "=`
By:
BY: I 3
Appr ed by MByor for Submission to
Approved by Mayor: Date _ A[J� � (� 1991 Council �
gY: ���ir��ff/ By: �
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DEPARTMENT/OFFICE/COUNCIL DATE INITIATED
P.E.D. 7/24/91 GREEN SH�iIEET N° . 13684
CONTACT PERSON&PHONE INITIAWDATE INITIAUDATE
EPARTMENT DIRECTOR �CITY COUNCIL
Kat Lindblad 228-3309 ASSIGN ITYA7TORNEY +• �� �CITYCLERK
MUST BE ON COUNCIL AGENDA BY(DATE) NUMBER FOR
ROUTING �B�UDGET DIRECTOR �FIN.&MGT.SERVICES DIR.
ALl 11St 1 1991 ORDER �ryp�pyOR(OR ASSISTANT) I
`� 0 .�.Lla�e �'�n
TOTAL# OF SIGNATURE PAGES 1 (CLIP ALL LOCATIONS FOR SIGNATURE) '•2".�,, Lisa Clemens °
ACTION REOUESTED: �- � _J
Approval of Energy Park Second Amended and Restated Joint Poca�ers Agreement, Development
Agreement, and Port Authority bond issuance. �
RECOMMENDATIONS:Approve(A)or Reject(R) pERSONAL SERVICE CONTRACTS MUST AI�SWER THE FOLLOWING�UESTIONS:
_ PLANNING COMMISSION _ CIVIL SERVICE COMMISSION �� Has this person/firm ever worked under a cor�tract for this department?
_ CIB COMMITTEE _ YES NO
_ STAFF 2. Has this person/firm ever been a city employ II e?
YES NO
_ DIS7RIC7 COURT _ 3. Does this person/firm possess a skill not nor all
rf� y possessed by any current ciry employee7
SUPPORTS WHICH COUNCIL OBJECTIVE7 YES NO
Explain all yes answers on separate sheet arjd attach to green sheet
INITIATING PROBLEM,ISSUE,OPPORTUNITY(Who,What,When,Where,Why):
Proposed rehabilitation of existing 120,000 sq, ft. ETA buildiing and 240,000 sq. ft.
addition for FBS Data Center in Energy Park. �
�ECEIVED
JU� 25' 1991
�IAY0��5
ADVANTAGES IFAPPROVED:
1. Tax base increased.
2. 855 employees in Energy Park. I
3. Potential for another 160,000 expansion in 3-4 years.
DISADVANTAGES IF APPROVED:
DISADVANTAGES IF NOT APPROVED:
l. FBS will likely locate Data Center in another municipality!
2. ETA site continues to be vacant. I
�i�as�l;�;; �.,°,,,�,�.s"�� �;�P��@�
JUL 2 �� 199�
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TOTAL AMOUNT OF TRANSACTION $ ���SO,000 bonds �-' �`� COST/R VENUE B4 DGETED(�IRCLE ONE) YES NO
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FUNDING SOURCE Te.X Increment '— �c-cfl��j�t7�<"�,�TIVITY NUMBER � ��
a� � � ._ ..�.
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, ���„"���I b `�ITY OF SAINT PAUL
< �ur �u u �
� ~C QFFICE OF THE CITY COUNCIL . :
'°°� CITY HALL-7th FLOOR-SAINT PAUL, MINNESOTA 55102
TOM DIMOND 612-298-5506
COUNCILMEMBER
; .
M�bers:
T Dimond, Chair
Paula Maccabee
o��e rn��e RECEIVED
Date: August 14, �991 AUG 15 �gg�
COMMITTEE REPORT CITY CLFRK
HOUSING AND ECONOMIC DEVELOPMENT COMMITTEE
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1�' Resolution 91-1448 - approving the issuance of borhds by the` Port Auth�`�i��y of
the City of Saint Paul to jointly refinance a multi-famil housin ,�; �'', �
Y g prdgr.am
for the Kendrick Apartments in Energy Park (Refer�ed from Council:�8 8=g`1):
- ��, :' 'x:
COMMITTEE RECOMMENDED APPROVAL, 3-0 , r. ,:.
2. Minnesota Housing Finance Agency Application for �unding Deferred Loan
Program - Phase VI (Referred from HRA 7-23-91) . j
THIS ISSUE WAS LAID OVER TO THE AUGUST 28, 1991, I�OUSING AND ECONOMIC
DEVELOPMENT COMMITTEE MEETING (HRq) I
3. Authorization to provide financing for the Famili�s First Program (Referred
from HRA 8-13-91) .
COMMITTEE RECOMMENDED APPROVAL AS AMENDED (HRA)
4. Resolution - regarding Neighborhood Partnership Pr�ogram 16th Cycle.
� THIS ISSUE WAS LAID OVER TO THE AUGUST 28, 1991, OUSING AND ECONOMIC
DEVELOPMENT COMMITTEE MEETING �
5. Resolution 91-1432 - approving the issuance of $6 0,000 Tax Exempt Revenue
� Bonds for the acquisition and renovation of 20,46� square foot facility for
Gilbert and Martha Thoele at 253 State Street in �iverview Industrial Park
(Referred from Council 8-6-91; on Council agenda -15-91) .
COMMITTEE RECOMMENDED APPROVAL, 3-0 i _
CHAIR: Housing and Redevelopment Authority & Housing and Econornic Development Committee ;.;�
(�'CIMMTTTFFC• A„1.1:,. �x7,...i.., o_ T_�----_- . I . .
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CITY OF SAINT PAUL
INTERDEPARTMENTAL MEMORANDUM
MEMO T0: Council President William Wilson
Councilmember Thomas Dimond
Councilmember Roger Goswitz
Councilmember Robert Long
Councilperson Paula Maccabee �
Councilmember Janice Rettman
Councilmember Dave Thune
indb a
FROM: Kat L 1 d
y �� I
DATE: July 25, 1991 � i ,
SUBJECT: FBS Data Center Project - Energy Park Actionsl.
Back r� ound
At its meeting of March 28, 1991 the Saint Paul City Cou�cil approved certain
amendments to the Energy Park Tax Increment Financing Pla�n to facilitate the
redevelopment of the former ETA Building in Energy Park ilnto a data center for
the First Bank Systems (FBS) . At the time of that actio , Ryan Limited `
Partnership was to acquire the site, rehabilitate the ex�sting 120,000 sq.. ft.
and construct an additional 240,000 sq. ft. , subsequentll leasing the space to
FBS. A total of 855 employees will work in three shifts at the operations
center, seven days a week.
On June 27, 1991 FBS asked the Saint Paul Port Authority ,to participate
directly in the financing and development of the projectland, in effect,
replace the Ryan Limited Partnership. The Port Authorit would simultaneously
issue taxable tax increment bonds and create a "bankrupt�y-remote" nonprofit
corporation to issue taxable bonds or notes secured sole y by the FBS lease
payments in an amount sufficient (when added to tax incr�ment bond proceeds
and other funds) to provide funds necessary to pay for t e construction costs
of the project. On July 30, 1991 the Port Authority Boa�d of Commissioners
will be asked to approve the actions necessary to let th�s $32 million project
proceed.
The resolution the City Council will be asked to conside� on August l, 1991
approves:
1. the execution of a Second Amended and Restated Joint Powers Agreement;
2. the execution of a Development Agreement; and I
3. the issuance of bonds by the Port Authority in connection with the FBS
project. I
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Memo to City Council
July 25, 1991 ;
Page Two
Second Restated Joint Powers Agreement
The major changes to the Joint Powers Agreement are as follows:
1. The taxable tax increment bonds described below �}ill be paid on a second
priority lien basis from Energy Park tax incremei�ts.
2. The existing structure for paying City and Port Authority fees will be
revised from a purely pro rata basis, to an agre ment whereby the City
is given priority for the first $100,000 of tax 'ncrement available
after payment for "Energy Park Improvements" to cover part of its total
fee allocation. The Port Authority will then receive up to $100,000 as
a second priority, as needed to cover its part o tYie fee arrangement.
The two agencies will then split any remaining a�ailable money on a pro
rata basis, calculated by dividing the amount of fees 'due to each agency
by the total amount due to both agencies.
3. Energy Park tax increment will become the only s�urce of repayment for
the UDAG loans currently outstanding with respect to Energy Park; land. .
sale revenues and energy system profits will no longer be available for
this purpose. The principal amount of the UDAG �oan to be repaid from
tax increments will be increased by $1,500,000.
4. Land sale revenues derived from the remaining En�rgy Park parcels will
be used to pay principal on the $6,000,000 Energ' Park Acquisition
Bonds, or to fund their required reserves. Futu e land sales or leases
will be at fair market value as determined by ap raisal, and need not
reflect the cost of acquiring and improving the and. The Executive
Director of the Housing and Redevelopment Author ty will be notified in
advance of any Energy Park land sales and land 1 ases and the terms and
conditions thereof. Proceeds from the sale or 1 ase of Energy Park land
over and above the amounts needed to pay off the $6,000,000 Acquisition
Bonds will be paid to the Housing and Redevelopm�nt Authority.
5. Although the obligation of the Port Authority to contribute one-third of
the profits from the Energy Park energy system to the repayment of the
Energy Park UDAGs will be eliminated, the Port A thority will commit 60�
of the annual energy system profits, in perpetui�y, and 60� of any net
proceeds from the sale of the energy systems, to the Housing and
Redevelopment Authority.
6. The previous requirement to use a portion of the�UDAG repayments to
establish a Bandana Square Loan Account will be liminated.
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Memo to City Council
July 25, 1991
Page Three
Develovment Agreement I
Significant aspects of the Development Agreement are as follows:
1. The Port Authority's soon-to-be-created bankruptcy-remote non-profit
subsidiary will act as developer of the ETA site, purchasing the
property from Control Data Corporation, financing the project, and
leasing the completed facility back to FBS.
2. Tax increment assistance will make the project possible, lowering FBS'
effective lease rate on the newly constructed port'on of the project by
$2.29 per sq. ft. Direct assistance to the projec� will be in the form
of taxable tax increment bonds, up to $3,375,000 of which will go to
offset project costs.
3. An assessment agreement will establish a minimum market value for the
completed project and FBS will guarantee taxes suf�icient to retire the
tax increment bonds.
4. If, at any time after project completion but before� March 1, 2008, there
are fewer than 680 full-time employees located at the project for a
period of more than 180 days in any 12 month period, FBS will be
responsible to pay debt service on the bonds.
5. The project will comply to the City's affirmative action, minimum wages,
targeted vendor, anti-discrimination, Federal Sect�lon 3 and other
requirements. I
Bonds
The City Council is being asked to approve the issuance �f taxable tax
incrernent bonds in the following approximate amounts by he Port Authority
with respect to the FBS project:
1. $3,610,000 to provide funds to pay for up to $3,37�,000 for certain
costs incurred in the project, the balance to pay �oft costs associated
with all three issues.
2. $3,500,000 to redeem the outstanding Twin City Tes ing Bonds and put
them on parity with the FBS bonds. �
3. $640,000 in face amount of capital appreciation bo ds accreting to a par
value at maturity of $3,000,000 to reduce stress o�i the Energy Park Tax
Increment District in the earlier years.
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Memo to City Council
July 25, 1991 I
Page Four I
Action Requested I
A resolution (and drafts of the Second Restated Joint Powers Agreement and the
Development Agreement) has been attached for your consideration and referral
to the Housing and Economic Development Committee for �its review on August 14.
Action by the City Council is requested at its August115 meeting.
cc: Ken Peterson
Robert Sprague I -
Jim Bellus
K:KSL:CITYCNCL.MEM
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7/23/91 (RLH)
SECOND AMENDED AND
RESTATED JOINT POWERS AGREEMENZ{ FOR THE
ADMINISTRATION, OPERATION AND F�INANCING
OF THE ENERGY PARK AND TWIN CIT� TESTING
AREA DEVELOPMENTS AND
TAX INCREMENT FINANCING DIST�2ICTS
THIS AGREEMENT entered into this �ay of
1991, by and between the City of Saint Paul, �a Minnesota municipal
corporation (the "City'�) and the Port AuthQrity of the City of
Saint Paul, a body politic and corporate org nized under the laws
of the State of Minnesota (the "Port Authori�y") .
WITNESSETH, WHEREAS: �
A. By Resolution C.F. No. 276898, the C�ty Council, pursuant
to Minnesota Statutes, Chapter 472A (recodifi�d as Sections 469 . 124
to 469. 134) , established Energy Park Deve�opment District as
Development District No. 3 (the "Energy Park Qistrict") to provide
impetus for commercial development, to inc�ease employment, to
protect pedestrians �from vehicle traffic and i�nclement weather, to
provide the necessary linkage between peripher�l parking facilities
and places of employment and shopping, to provide offstreet parking
to service the shoppers and employees of the Bnergy Park District,
to provide open space relief within the Energy Park District, and
to provide other facilities as are outlined� in the development
program for the Energy Park District; i
B. By Resolutions 1499, 1535, 1609, 1697 and 1827 the Port
Authority, pursuant to Minnesota Statutes, Cha�ter 458, established
approximately the same geographic area a� the Energy Park
Economic/Industrial Development District i (the "Industrial
Development District") for purposes of establil�hing and developing
a system of economic/industrial developments; �
C. By Resolution C.F. No. 276899, the Ci�y Council, pursuant
to Minnesota Statutes, Section 472A. 10 (re�odified as Section
469. 131) , designated the Port Authority as a�lministrator of the
Energy Park District.
D. By Resolution C.F. No. 276900 the Ci y Council, pursuant
to Minnesota Statutes, Sections 273 .71 to 27�.78 (recodified as
Sections 469 . 174 to 469. 179) , and Chapter 4i72A (recodified as
Sections 469. 124 to 469. 134) designated the Ene�gy Park District as
a tax increment financing district and ado�ted a Development
Program and Tax Increment Financing Plan fqr the Energy Park
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District for the purpose of financi�ng the capital and
administration costs of the Energy Park DiStrict.
E. By Resolution No. 3028, the Port� Authority created the
Twin City Testing Industrial and Economic D velopment District and
by Resolution C.F. No. 88-2008 the City Cou�cil amended the Energy
Park District to incorporate the Twin Cit Testing project area
(the Energy Park District as so expanded b�ing hereinafter called
the "District") , created within that proj�ct area the Twin City
Testing Project Tax Increment Financing Di$trict and, pursuant to
Minnesota Statutes, Section 469. 131, design!�ted the Port Authority
as administrator of the entire District.
F. By Resolution C.F. No. 277273, t�e City Council and by
Resolution No. 1876, the Port Authority, approved and executed a
Joint Powers Agreement For The Administ�ation, Operation and
Financing Of The Energy Park Developme�?t And Tax Increment
Financing District dated August 18, 1981, wh�ich has previously been
amended by the Restated Joint Power� Agreement for the
Administration, operation and Financing of the Energy Park and Twin
City Testing Area Developments and Ta� Increment Financing
Districts which was dated August 30, �989 and approved by
Resolution C. F. 89-1466 of the City Council nd Resolution No. 3167
of the Port Authority (collectively the "Orliginal Agreement") .
G. On October 14, 1982, the Port Aut�ority acquired in the
Energy Park District property (the "Kopper�' Site") from Koppers
Coke, Inc. ("Koppers") , and as an incidentito that purchase, the
Port Authority received from Koppers an agreement as to the removal
of surface contamination and an indemnific�tion from and against
all claims arising out of the ground wate� contamination of the
Koppers ' Site and other environmental hazards.
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H. On December 14, 1984, the Port Authority sold certain
property (the "ETA Site") in the Energy Pa�k District, including
part of the Koppers ' Site, to ETA Systems In orporated ("ETA") . As
an incident to this sale, the Port Auth�rity indemnified ETA
against claims arising from environmentaljhazards arising from
certain "hazardous substance" brought onto the Koppers � Site or
generated thereon prior to December 14, 1984.
I. On February 27, 1991, the Port Authbrity, ETA and Control
Data Corporation ("CDC") entered into a purc ase agreement in favor
of Ryan Construction Company, Inc. ("Ryan" under which the ETA
Site is to be conveyed to Ryan. The conveya ce under the purchase
agreement is conditioned, among other things on the Port Authority
and the City entering into this Amendm�nt to Joint Powers
Agreement.
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J. On , with the consent af the Port Authority
and CDC, Ryan assigned its rights under the P�rchase Agreement to
Authority which on assigne those rights to
, a Minnesota nonprofit corpora�tion (the Port "FBS
Developer") .
K. By Resolution C.F. No. 91-351, the City Council, pursuant
to Minnesota Statutes, Sections 469. 174 to 4 9. 179, and Sections
469. 124 to 469. 134 : (i) approved establish�ent of a hazardous
substance subdistrict (the "Koppers' Subdist�ict") that includes
the Koppers ' Site in the Energy Park District; and (ii) authorized
the amendment of the Development Program iand Tax Increment
Financing Plan for the Energy Park District to allow for the use of
extra tax increments derived from the Koppers� Subdistrict to pay
for certain hazardous substance costs un er the conditions
hereinafter set forth. By Resolution C.F. N�. , the City
Council, pursuant to the same authority; (x) a proved the issuance
of bonds in the approximate principal amount ofI �$ to provide
funds to reimburse the FBS Developer for certaii� development costs,
to refund and prepay the Port Authority's $ Taxable
Commercial Development Revenue Note, Series 1�990-1, and to defer
principal payments on other bonds payable from Tax Increments, and
further approved the use of Tax Increments f�om the Energy Park
District to secure those bonds; and (y) authori ed the execution of
this Second Restated Joint Powers Agreement �or Administration,
Operation and Financing of the Energy Park an� Twin Citx Testing
Area Developments and Tax Increment Financing D stricts (the "Joint
Powers Agreement") to set forth the conditions on which the
preceding would be accomplished. I
L. By Resolution No. , the �ort Authority has
approved the issuance of the bonds referred t clause (x) of the
preceding Paragraph K, and authorized the exec�tion of this Joint
Powers Agreement.
NOW, THEREFORE, the City and Port Authority, each in
consideration of the mutual covenants andl agreements herein
contained, covenant and agree that the Original Agreement is hereby
amended and restated to read as follows:
Section 1. Authoritv. This Agreement isjentered into under
the authority of Minnesota Statutes, Sections 469. 012, subdivision
(11) and 471.59, and such other applicable st�tutory and Charter
provisions as are consistent herewith.
Section 2 . Definitions. In additionl to the terms as
hereinabove or hereinafter defined in this AJgreement, unless a
different meaning clearly appears from the context, the following
terms shall have the following respective mean�ngs:
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Additional Oblicrations: The additiona�l obligations arising
from the AHW Agreement and District Am�ndment referred to in'
Section 7 (b) .
Aqreement: This Agreement as the same pmay from time to time=
be amended or supplemented.
Authority Advance: The $126,992 of Po�t Authority revenues
(other than Tax Increments and District Revenues) advanced by
the Port Authority to finance the Ene�gy Park District, as
provided in the Plan. I
Bond or Bonds: Revenue bonds, notes, interim certificates and
other obligations of the Port Autho$ity issued for the
purposes of financing the Distr�ct's capital and
administration costs provided for in th� Plan.
Borrowing Rate: If the Port Authority bc�rrowed the funds used
to defray the amortized costs of the Ener y Park Improvements,
that annual rate of interest which full reimburses the Port
Authority for the cost of borrowing th funds; if the Port
Authority advanced its own funds to defr y the amortized costs
of the Energy Park Improvements, an an ual rate of interest
equal to the rate of interest from time �o time being charged
by Norwest Bank Minnesota, National �Association, as its
"reference rate" or the equivalent.
Budget: The Energy Park Land-Acqu'sition and Capital
Improvements Budget and the Twin Cit� Testing Area Land
Acquisition and Capital Improvements IBudget attached as
Exhibit A, as such Budget may be amend�d from time to time
with the approval of the City Council.
District: The area designated by City Co�ncil Resolution C.F.
No. 276898 as Development District No. 3 and as amended by
Resolution C.F. No. 88-2008.
District Revenues: Any and all net reve�nues received by the
Port Authority from the sale or lease of land within the
District and from the operation of Ipublic improvements
provided for in the Plan.
EDA: The United States Economic Develop�nent Administration.
EDAG: The Economic Development Action G�ant in the principal
amount of $2, 300, 000 made to the City f�r use in the Energy
Park District.
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Ener Park
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qv District: That portion of t�ne District designated
by City Council Resolution C. F. No. 27�89g.
Enerav Park Improvements• All actlivities included as
permissible capital costs in the Plar� and Budget for the
development of the Energy Park Districtl.
Enerav Park Tax Increment District• I The tax increment
financing district created by City Counc�l Resolution C.F. No.
276898 . I
Enerav Park Tax Increments• Tax Increm�nts derived from the
Energy Park Tax Increment District (whicY� excludes Subdistrict
Tax Increments derived from the Koppers� Subdistrict) .
Energv System: A system of wells, pump�, boilers, chillers,
heat pumps and heat exchangers which gene�rate warmed or cooled
water and/or steam for distribution thro�gh pipes to buildings
located in the Energy Park District.
Enerav System Reserves• The amounts set� forth in Exhibit C
that are to be funded from Energy Parl� Tax Increments and
accumulated in a repair and replacem�nt account for the
benefit of Energy Park District and usec� exclusively for the
payment of any capital costs incurred ir� connection with the
Energy System in excess of Energy Syste�a Revenues available
therefor.
Enerav Svstem Revenues• District Rev�enues received from
operation of the Energy System.
Existincr Tax Increment Bonds• Bonds lissued by the Port
Authority on the initial principal amou t of $29, 500, 000 to
finance the capital, debt service, and a�inistrative cost of
the plan. j
FBS Developer: , a I�innesota nonprofit
corporation, and any successor to its ri�hts permitted under
the FBS Development Agreement.
FBS Developer Bonds• The $3, 610,000 iss�ied to provide funds
to reimburse the FBS Developer for certai� development costs.
FBS Developer Indemnification: Paragra hs 3 and 4 of the
Remediation and Indemnity Agreement a�tached to the FBS
Development Agreement as Exhibit J unc�er which the Port
Authority indemnifies the FBS Developer at�d other Indemnitees
with respect to certain Hazardous Substarices (defined in the
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indemnification) brought onto the Koppers ' site or generated
thereon prior to December 14, 1984 .
FBS Develo er Tax Increments: The m�aning given that
term in Section 1. 1 of the FBS Develop�nent Agreement.
FBS Develo ment A reement: That ceptain Development
Agreement dated , 1991, iby and among the
City, the Port Authority and the FBS D�veloper.
HUD: The United States Department I�of Housing and Urban
Development.
Indemnities: The meaning given that te�m in the FBS Developer
Indemnification.
Industrial Development Revenue Bonds• !The non-tax increment
supported bonds issued by the Port A�uthority in the face
amount of $6, 000, 000 in 1985 in conne�tion with the Energy
Park District. i
Koppers: Koppers Coke, Inc. i
Koppers' Indemnification: The indemni�ication set forth in
Part XV of the Agreement for Sale of Larpd dated July 1, 1982,
between the Port Authority and Koppers.�
Koppers' Site: The property located� in the Energy Park
District purchased by the Port Author�ty from Koppers, on
October 14, 1982 .
Konuers' Subdistrict: The hazardous sublstance subdistrict in
the Energy Park Tax Increment District �approved by the City
Council pursuant to Resolution C.F. No. � 91-351.
KouAers' Subdistrict Bonds: Any bonds ilssued by the City and
made payable solely from Koppers' Ta�q Increments and the
proceeds of the bonds.
Kobners' Tax Increments: Subdistrict Ta�x Increments derived
from the Koppers ' Subdistrict.
Parkincr Ramu Bonds• The $ previously issued
by the Port Authority to refund bonds issued to initially
provide funds to acquire and improve two'Iparking ramps in the
Energy Park District.
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Participation Agreement: Collectively, the Participation
Agreements dated November 26, 1980 and Nqvember 16, 1982, <as
amended between the parties. I
Plan: The Development Program for th� District and Sax
Increment Financing Plan for the Energy Park Tax Increment
District adopted by City Council C.F. No. 276900 and as
amended from time to time and the Tax Incr�ment Financing Plan
for the Twin City Testing Tax Increment pistrict adopted by
City Council C.F. 88-2008 and as amended �from time to time.
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Subdistrict Tax Increments: Any tax incr ments derived from
a hazardous substance subdistrict, incl�iding the Koppers'
Subdistrict, located in the Energy Park Tax Increment District.
as a result of a reduction in the origin�l net tax capacity
pursuant to Minnesota Statutes, Section 4 9. 174, subdivision
7, paragraph (b) , or as a result of t e extension of the
period for collection of tax increment�from the hazardous
su bs tance su b district provided for in Minnesota Statutes,
Section 469 . 176, Subdivision 1, paragraphi (g) . "
Tax Increments: The tax increments deriv�d from the District �
pursuant to Minnesota Statutes, Section 4�9. 177.
Twin City Testing Bonds: The $3, 500, 000 Taxable Contmercial
Development Revenue Note, Series 1990-1 by� the Port Authority
on June 27, 1990, and any Bonds issued to refund the same.
Twin Citv Testing Tax Increment District• The tax increment
financing district created by City Council Resolution C.F. No.
88-2008. I
, Twin City Testina Tax Increments• Tax Incr�ements derived from
Twin City Testing Tax Increment District.
UDAG: The Urban Development Action Grani�s in the aggregate
principal amount of $15,513 , 500 made to the City for use in
the Energy Park District.
UDAG Grant Agreement: Collectively, the UD G Grant Agreements
dated August 7, 1980 and May 5, 1982, as a�iended, between the
City and the United States of America Department of Housing
and Urban Development.
Zero Coupon Bonds: the capital appreciat�on bonds issued in
1991 in the face amount of $640,000 and �ccreting to a par
amount at maturity of $3, 000, 000, and any Bonds issued to
refund the same.
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Section 3 . Purpose. The purpose of this Agreement is to
provide for the administration and operation of the District by the
Port Authority, to provide for the financirlg thereof, and to set
forth the responsibilities of the City a d Port Authority in
connection therewith. �
Section 4 . Port Authoritv Powers The City has heretofore
designated the Port Authority as administrator and operator of the
District pursuant to Minnesota Statutes, Se tion 469. 131, and the
Port Authority hereby accepts such desig ation and agrees to
administer and operate the District pursuan� to this Agreement in
accordance with said Section 469. 131 and Minnesota Statutes Section
469.064, Subdivision 1. The Port Authorit may exercise any and
all of the following powers for the purpose of administering and
operating the District: .
(a) Acquire property or easements through negotiation;
(b) Enter into operating contracts for operation of any
of the public facilities to be ronstructed under the
terms of the Plan;
(c) Lease space to private individuals or corporations
within the buildings and constructed under the terms of
the Plan;
(d) Lease or sell air rights over $tructures constructed
under the authority of the Plan;
(e) Enter into contracts for th� construction of the
several facilities or portions thereof provided for in
the Plan;
(f) Acquire through eminent domai�► property that cannot
be acquired by negotiations, but is required for
implementation of the Plan;
(g) Accept from the City the proaeeds of such federal,
state and other grants which thei City has heretofore
applied for and may hereafter app�.y for to finance the
capital and administration costs f the Plan;
, (h) Request that the City apply fo grants from federal,
state and other sources to finance the capital and
administration costs of the Plan,�hich grants the City
shall use its best efforts to obt in;
(i) Receive and use District Revenues and Tax Increments
pursuant to the Plan and this Agreement;
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(j) Exercise any and all other pow rs which are common
or similar to the Port Authority an City and which, are :
deemed necessary or convenient by the Port Authority. to -
administer or operate the Plan, subject to the terms arid
conditions of this Agreement. ,
Section 5. Source of Funds. The soure s of funds for the
administration an operation of the District in lude Bond proceeds,
Tax Increments, District Revenues, federal a�d state grants and
such other funds and revenues of the Port Authority as may be made
available for such purpose. City agrees that so long as any Bonds
are outstanding, the City will not change the m�thod of computation
of tax increment pursuant to Minnesota Statut s, Section 469. 177,
Subdivision 3 (c) .
Section 6. Budaet and Disbursements !The Budget attached
hereto as Exhibit A has been approved by the City Council, and
establishes a maximum principal amount and line item amounts of Tax
Increments or proceeds of Bonds payable from Tax Increments to be
remitted directly to the Port Authority in acc rdance with Section
8 hereunder; provided that if the maximum princ'pal amount of Bonds
payable from Tax Increments or a line item amo nt in the Budget is
to be increased, the Port Authority may propose an amendment of the
Budget at any time and the Budget may be amended by the City
Council at any time, consistent with the Plan as amended from time
to time. The Port Authority shall disburse unds in accordance
with the Budget, the priorities establishe in Section 7 (c)
hereunder, and in accordance with procedur s governing other
expenditures by the Port Authority. Contrac s shall be let and
purchases shall be made by the Port Authority 'subject to the same
procedures as govern the letting of other contracts and the making
of other purchases by the Port Authority.
Section 7. District Obli ations • Prio it . (a) Existina
District Oblictations. The parties agree that the Existing Tax
Increment Bonds were issued on behalf of the ity as provided in
the applicable bond resolution. The Port Authority also has
outstanding an Industrial Park Revenue Bond in the amount of
$6, 000, 000 payable from revenues generated in the Energy Park
District from the sale or lease of [identifv emaining parcelsl ,
which the Port Authority agrees to apply to he payment of debt
service on those bonds, or to fund the required reserves therefore.
The Port Authority further agrees that future l�nd sales and leases
are to be at fair market value, as determined by appraisal, and
need not reflect the cost of acquiring and renoYating the land. In
addition, the Port Authority has applied the Au�hority Advance, and
received the UDAG and EDAG from the City to finance the Energy
Park District provided for in the Plan.
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(b) Additional District Oblictations• he Port Authority witYi,;;.
consent of the City has concluded an agreeme t with AHW whereby thex
Port Authority has acquired two parking ramps and committed to make
certain capital improvements thereto and to assume the debt service '
on the Parking Ramp Bonds. The District has been amended
("District Amendment") by inclusion of the Twin City Testing
project area ("Twin City Testing Area") with additional debt
service, capital and administrative costs. (Any bonds for such
purpose are hereinafter referred to as t e "Twin City Testing
Bonds") . The additional obligations arising from the AHW Agreement '
and District Amendment ("Additional Obligations") are to be funded
from the proceeds of additional Bonds or by direct application of
Tax Increments including Twin City Testing '�,Tax Increments.
(c) Priorit of A lication of Tax In rements.
A. Energy Park Tax Increments shall be applied for the
following purposes and in the following order of
priority:
(i) Debt service on Existing Tax Increment Bonds
(and any Bonds issued to refund the same) ;
(ii) On a parity of lien basis, debt services on:
(x) the FBS Developer Bonds; (y) the Twin City
Testing Bonds (but only to the extent that there
are insufficient Twin City esting Tax Increments
therefor) ; and (z) the Zero Coupon Bonds;
(iii) Debt service (incl ing the fiscal and
administrative fee therefor described in Exhibit B
attached hereto) on the Parking Ramp Bonds (and any
Bonds issued to refund the same) ;
(iv) Reimbursement of the Port Authority, with
interest at the rate of 5� er annum, for amounts
drawn on the reserve initia ly established by the
Port Authority in the amount of $1,500, 000 to
secure the payment of the bonds referred to in the
preceding clause (ii) ; ,
(v) Energy Park Improve ents, including the
Energy System Reserves (desc ibed in Exhib�t C) not
funded from Bonds or federal'' grants; provided that
. no further payments towards the Energy System
Reserves shall be made once the repair and
replacement reserve for Ener y System Improvements
has been fully funded as p ovided in clause (x)
below; and provided further that the cost of the
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Energy Park Improvements descr'bed in Exhibit C as
Ramp Capital Costs and Other Ca�ital Costs and aid
at this level of priority sha 1, as to the Other
Capital Costs, be amortized at the Borrowing Rate
over a ten year period, or suc shorter period as
terminates on December 1, 200 , and, as to Ramp
Capital Costs, be amortized at the Borrowing Rate
over a fi�e year period; or suc shorter period as
terminates on December 1, 2007.
(vi) Administrative fees payable to the City and
the Port Authority pursuant to Section 9 (a) , (b)
and (d) hereof;
(vii) UDAG reimbursements paid �ursuant to Section
10 (a) hereof;
(viii) Reimbursement, without ' interest, of the
Authority Advance;
(ix) Reimbursement of the cos of stoplights (not
to exceed $250, 000) installed �n the Energy Park
District;
(x) A repair and replacement reserve, including
any unexpended Tax Increments used to fund Energy
System Reserves, for Energy Sys em Improvements up
to their unexpended budgeted amo�nt as set forth in
Paragraph F hereof.
(xi) Pro rata, the unreimbursed balance of (x) the
UDAG Grants described in Sectio� 10(a) hereof and
(y) the amortized cost of Energ� Park Improvements
exclusive of the Energy System Reserves described
in clause (v) above, applied a� a prepayment, in
inverse chronological order, of �he installments of
principal due under clause (v) above and
Section 10(a) hereof.
B. Twin City Testing Tax Increments shall be applied
for the following purposes and in the following order of
priority:
(i) Administrative fees pay ble to the City
pursuant to Section 9 (c) hereof fi
(ii) Debt service on any Twin Ci�ty Testing Bonds;
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(iii) Any Twin City Testing Area costs (except
housing replacement) included �n the Plan and not
paid from the proceeds of Twin City Testing BondS.
C. Debt service payments shall �nclude all out �of
pocket costs, such as paying agency, and bond registrar
fees incurred by the Port Authority i� carrying the bonds
described in Section 7 (c)A(i) , (ii) ar►d (iii) hereof, and
reimbursement of the Port Authority for any such payments
made from Port Authority funds for�bonds in principal
amounts as provided in the Budget. or purposes of this
Agreement earnings on Tax Increments shall be deemed Tax
Increments and applied according to paragraph A hereof
except that any earnings on the Ene�gy System Reserves
described in clause (v) above shall be retained therein
until the amount in the reserve desCribed in clause (x)
above has been fully funded in accordance with Paragraph
F hereof.
D. Tax Increments shall be applied for the purposes set
forth in clauses (i) , (ii) , and (iii) of paragraph A
above and clause (ii) of paragraph � above only to the
extent then required to pay any accrued debt service
costs and to satisfy any other dept service funding
requirements under the applicable Plond resolution (or
reimburse the Port Authority for the use of other Port
Authority funds for that purpose) ; pr vided that the debt
service funding requirements for any �onds other than the
Existing Tax Increment Bonds shall not be satisfied or
reimbursed out of Tax Increments u less the Executive
Director of the City's Departmen� of Planning and
Economic Development ("PED") , or his or her designee, or
the City Council first consents to the funding
requirements in the applicable Bond resolution.
Likewise, Tax Increments shall be applied for ,the
purposes set forth in clauses (iv� through (xi) of
paragraph A above and clauses (ii) an (iii) of paragraph
B above only to the extent that the purpose for which
Tax Increments are to be applied has ripened to a
payment obligation (except that any payments made towards
the Energy System Reserves under clau e (v) of Paragraph
A shall be held in reserve until exp nded on the Energy
System Improvements. If Tax Incremen s are not required
to satisfy any particular purpose s�t forth in clauses
(i) through (xi) of paragraph A ab ve or clauses (i)
through (iii) of paragraph B above, as the case may be,
they shall be applied to the next succeeding purpose
which is not then satisfied. Any Tax �ncrements which at
any time exceed the amounts then required to satisfy the
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purposes set forth in paragraphs A or B above, as the� ''
case may be, shall be held and Iapplied by the Port
Authority for said purposes as and tahen needed and in the
same order of priority.
E. Notwithstanding anything in �his Agreement to the
contrary, the Port Authority reser es the right to issue
such other bonds and provide other �inancing for purposes
of the Plan and to undertake such other improvements and
projects in the District, in addit'on to those contained
in or authorized by the Plan, as th� Port Authority deems
appropriate, provided, however, such other bonds,
financing and improvements or p�ojects shall not be
subject to payment or reimbursemen from Tax Increments
or District Revenues unless provi ed for in the Budget
and Plan. Prior to exercising the �ights reserved to the
Port Authority under this paragra h E, for purposes of
the Plan, the Port Authority shal� notify the City in
writing of its intent to exercise 5aid rights and shall
consult with the City prior to issui�ng bonds or providing
other such financing. I
F. The repair and replacement �eserve described in
clause (x) of paragraph A shall be funded in the amount
of $10, 000, 000 which shall include � the aggregate amount
of payments made towards the En�rgy System Reserves
described in clause (v) of paragrsph A, less any part
thereof including earnings spent �n the Energy System
Improvements.
(d) A�plication of Subdistrict Tax Inc�ements. Subdistrict
Tax Increments shall be applied as provided in Section 3 .4 of the
FBS Development Agreement.
Section 7A. (a) The provision of Se tion 3 .4 of the FBS
Development Agreement are incorporated herein�by reference and made
a part hereof.
(b) If written demand of an Indemnitee i� filed with the City
and Port Authority as provided in 5ection 3 .4 (1) of the FBS
Development Agreement, the Port Authority shall promptly give
written notice to the City if, in the apinion of the Port
Authority, the Port Authority is not obligate� to honor the demand
either because (i) there are not adequate s urces of payment as
provided in the FBS Developer Indemnificatipn or (ii) the Port
Authority is otherwise not obligated to' honor the demand under the
terms of the FBS Developer Indemnification.
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(c) If the City is required under Section 3.4 of the `
Development Agreement to certify the Koppers ' Subdistrict or if the
Port Authority notifies the City under para�graph (b) above that
there are inadequate sources of payment, the City may require that
the issue of the availability of funds to honor the demand as
provided in the FBS Developer Indemnifica�ion be submitted to
arbitration as hereinafter provided. The determination of the
arbitrator shall be binding on the City and Pbrt Authority and, if
the arbitrator determines that there are sufficient funds to honor
the demand, the Port Authority shall promptlyI pay over to the City
such available funds. In that event, the mdnies remitted to the
City, including earnings thereon, shall be ma ntained in a separate
account and applied solely towards th� payment, or the
reimbursement for the payment, of costs payable under the FBS
Developer Indemnification. At such time as �hose costs have been
fully paid or reimbursed, any excess shall th n be returned to the
Port Authority. If, prior to a determination by the arbitrator
that there are sufficient Port Authority f�nds bonds have been
issued and secured by Subdistrict Tax Increments, any funds
remitted by the Port Authority to the City pur uant to this Section
7A shall be promptly remitted by the City to �the County, pursuant
to Section of the Plan.
(d) Arbitration of the availability issue set forth in
paragraph (c) above shall be conducted in accordance with the
applicable general commercial Arbitration R�les of the American
Arbitration Association, unless the City and Port Authority agree
in writing otherwise.
(e) Any payment made by the City under 'his Section 7A shall
be deemed made on behalf of the Port Auth rity, and the Port
Authority agrees that it shall be fully li ble to the City to
reimburse the City for any such payment fromlany amounts the Port
Authority collects for this purpose u�der the Koppers '
Indemnification or any other remedies avail ble to it under law
(the "Other Remedies") . To this end, the P�rt Authority agrees
that it will, at the request of the City, but �t the expense of the
Port Authority, and only if Koppers' is notIinsolvent, make and
pursue its remedies under the Koppers' Indemnlification or, at the
request and expense of the City, pursue any O her Remedies or take
any other action which the City reason bly determines is
appropriate to secure reimbursement of payme t made by the City
under this Section 7A or to eliminate or miti ate the necessity of
such payments be made, and that in no event wi�] 1 the Port Authority
waive its rights under the Koppers' Indemnific tion or with respect
to such Other Remedies or other action withou� the consent of the
City.
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Section 8 . Use of Tax Increments. Al1 �Tax Increments shall
vest in and be remitted directly to, the Po�tt Authority and the .
Port Authority shall segregate the Tax Incre�ner�ts so received in
one or more special accounts on its official ,�ooks and records to
be used only in accordance with the Pla�, the Budget, the '
applicable Bond resolutions, the UDAG Grant'� Agreement and this �
Agreement in accordance with the prioritiesland subject to the
limitations established in Section 7 hereof. '
Any remaining Tax Increments shall eithe� be retained by the
Port Authority or a Bond Trustee, to the ex�ent required by the
applicable Bond resolution or this Agreement Eor any use permitted
above or be returned to the City to be used or distributed in
accordance with applicable law. '
Section 9. Administrative Exbenses (a)� The Port Authority
shall pay to the City in 1989 the sum of $1 6, 000 due under the
prior Energy Park Joint Powers Agreement and i addition thereto to
the extent available from Energy Park Tax In rements, the sum of
$74, 000 payable on October 1, 1989; and begin ing January 1, 1990,
and each year thereafter in quarterly insta�.lments, the sum of
$200, 000 per year payable solely from Energy P�rk Tax Increments to
be used to finance activities of and service$ provided by PED in
connection with Energy Park District, to�wit: preparing and
submitting tax increment district reports rlequired by statute;
meeting with citizen groups to convey informat'ion regarding Energy
Park; assisting HUD and the EDA in audit and '�, inspection of grant
records; drawing down and accounting for HUD and EDA grant monies
in accordance with federal regulations; report�ing to HUD and EDA on
Energy Park District in a format and according to procedures as
prescribed in federal regulations; preparing �nd presenting to the
City Council such reports and information as ',may be requested by
the Port Authority. ',
(b) The Port Authority shall be entitleid to charge against
available Energy Park Tax Increments as pr�vided in Section 7
hereof and credit to its operating acc#ount in quarterly
installments beginning January 1, 1990, the su�h of $70, 000 per year
until December 31, 1991, $140, 000 per yea�r thereafter until
December 31, 1996, and $210, 000 per year thereafter, as
reimbursement for all administrative costs ilncurred by the Port
Authority in connection with the administratio� of the District and
not otherwise financed out of Bond proceeds, �istrict Revenues or
Tax Increments. In 1989, the annual $70,00� administrative fee
will be due in one lump sum on October 1, 198�.
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(c) The Port Authority shall pay to th� City, but only from
available Twin City Testing Tax Increments or bond proceeds as
provided in Section 7 hereof, in quarterly installments, beginning
October 1, 1989, the sum of $75, 000 per year o be used to finance
activities of and services provided by the P�D in connection with
Twin City Testing Area.
(d) In the event the amount of Tax Inc�ements available for
payment of administrative expenses in any year as provided above is
not sufficient to make full payment of the ar�ounts due, the first
$100,000 of available Tax Increments will be applied to the payment
of fees due to the City under subparagraph (a) , above; the next
$100,000 of available Tax Increment will be a�plied to the payment
of fees due to the Port Authority under subparagraph (b) , above;
and any remaining available Tax Increment shal,l be divided pro rata
between fees due under subparagraphs (a) an� (b) , above, on the
basis of the fees then due under (a) or (b) divided by the total of
the fees then due under (a) and (b) . Any �deficiency remaining
after the forgoing application shall be ca�ried forward and be
payable on the same terms, in the following' year or thereafter,
when Tax Increments are adequate to fund the d ficiency in addition
to the administrative expense due in the sub�equent year.
Section 10. Reimbursement of UDAG Gr nts. (a) The UDAG
grants shall be repaid to the City, solely f om available Energy
Park Tax Increments with interest at the rate of seven and one-half
(7 .5�) percent per annum accruing from J nuary 1, 1989, in
accordance with the amortization schedule at�ached as Exhibit D.
Payments shall commence December 31, 1989 and each December 31st
thereafter. Any unpaid principal or interest hall be added to the
principal balance due effective as of the date�on which said unpaid
amount was due, and the amortization schedule shall be revised to
reflect the new principal balance and amou�t of principal and
interest payment due on the next installment date. In addition,
and in consideration of the City's agreement to release the Port
Authority from its obligation to apply lanq� sale revenues and
energy system profits to the repayment of the! UDAG, the principal
amount now due under the UDAG has been increased by $1,500,000 as
reflected on Exhibit D. Notwithstanding anyt�ing to the contrary
contained herein or in any other document or agreement, the Port
Authority shall have no obligation to repay the UDAG grants except
from available Energy Park Tax Increments �s provided in this
Section and Section 7 (c)A(vii) .
(b) Fifty (50�) percent of the $3 ,431, 000 payment on account
of the 1982 UDAG shall be reserved for development activities in
the Council 46 area.
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Section il. Term of A reement• Terminati n. This
ayreement
shall continue in effect until terminated in a�cordance with this
Section. This Agreement may be terminated at ar�y time by agreement
of the City and the Port Authority except that t�e relevant portion
of this Agreement may not be terminated while ar�y Bonds or Koppers'
Subdistrict Bonds are outstanding unless suffic�,ent funds have been
irrevocably deposited in the debt service accbunt or the escrow
account to pay debt service on the Bonds. and Kqppers' Subdistrict
Bonds to maturity or date of redemption; and �xcept further that
the provisions in Section 7A of this Agre�ement may not be
terminated until the later of March 2, 2008 0�' the expiration of
the Koppers ' Subdistrict if certified to theiCounty Auditor as
provided in Section 7A.
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Section 12 . Distribution of Funds land Pro ert on
Termination. Upon termination of this A reement, any Tax
Increments received by the Port Authority in e�cess of the amount
necessary to pay debt service on the Bonds an�d to reimburse the
Port Authority in accordance with Section 9, shall be transferred
to and become the property of the City witholut payment of any
further consideration to the Port Authority andjall other property
acquired and held by the Port Authority or th� City pursuant to
this Ag�eement shall be retained by the pa�ty holding title
thereto.
Section 13 . Amendments. This Agreement �may �be amended by
agreement of the City and Port Authority in writ�ng at any time. No
amendment may impair the rights of the holders o� any Bond or Bonds
unless consent is given in accordance with the ond covenants.
Section 14 . Severability. In the event an1�l provision of this
Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not ir�validate or render
unenforceable any other provision hereof.
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IN WITNESS WHEREOF, the City of Saint Paull has caused this
Agreement to be executed on its behalf by its M�yor, its Director
of the Department of Planning and Economic De�elopment and its
Director of the Department of Finance and Manage ent Services; and
the Port Authority of the City of Saint Paul has caused this
Agreement to be executed on its behalf by its Chair and its
Secretary and the seal of said Authority to be he eunto affixed and
duly attested, all on the day and year first ab�ve written.
PORT AUTHORI�Y OF THE
CITY OF SAIN PAUL
Chair
Secretary
Port Authority Signature Page - Second
Restated Joint Powers Agreement
Energy Park and Twin City Testing
Districts
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APPROVED AS TO FORM: CITY OF SAINT �AUL
Assistant City Attorney Mayor
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Director, Depa tment of
Planning and E4onomic Development
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Director, Department of
Finance and Mar�agement Services
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City of Saint Paul Signature Page - Second
Restated Joint Powers Agreement
Energy Park and Twin City Testing
Districts
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EXHIBIT A I
Acquisition and Capital Improveme�ts Budget �
[To Be Provided by Katy Lind}�lad]
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EXHIBIT B
Debt Service on Parking Ram�p Bonds
[To Be Provided by Julie K�imble]
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EXHIBIT C
Energy System Reserves
[To Be Provided by Julie Kimbl�]
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EXHIBIT D
UDAG Amortization Schedule -
[To Be Provided by Katy Lindblad]
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7/23/91
DEVELOPMENT AGREEMENT
BY AND AMONG
CITY OF SAINT PAUL
AND '
PORT AUTHORITY OF THE CITY OF SAINT PAUL
AND
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This Document Drafted by:
BRIGGS AND MORGAN (RLH)
2200 First Bank Bldg.
Saint Paul, Mn. 55101 I
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TABLE OF CONTENTS
TO
DEVELOPMENT AGREEMENTS
Paae
ARTICLE I - DEFINITIONS . . . . . . . . . . . . . . . . . 5
Section 1. 1. Definitions . . . . . . . . . . . . . . . 5
ARTICLE II - REPRESENTATIONS AND WARRANTIES 10
Section 2 . 1. Representations and Warran�ies of,the• . �
City and Port Authority . . . . . . . 10
Section 2 .2 . Representations and Warran�ies of the
Developer . . . . . . . . ' . . . . . . . . 11
ARTICLE III - PURCHASE OF DEVELOPMENT PROPERT� AND PROJECT
ASSISTANCE . . . . . . . . . . . . . . . . 14
Section 3 . 1. Purchase of Development Pr�perty by � �
Developer . . . . . . . . . 14
Section 3 .2 . Project Assistance . . . . . . . . 14
Section 3 . 3 . Use of Tax Increments . . . . . . . . . . 15
Section 3 .4. Developer Indemnification . . . . . . . . 16
ARTICLE IV - CONSTRUCTION OF MINIMUM IMPROVEM�NTS . . • lg
Section 4 . 1. Construction of Minimum Im rovements . • . 18
Section 4. 2. Construction Plans . . . . . . , lg
Section 4 . 3 . Completion of Construction . . . . . . . � 19
Section 4 .4 . Certificate of Occupancy . . . . . . . . . 20
Section 4 .5. Signage . . . . . . . . . . . . . . 20
Section 4 . 6. Service Fee. . . . . . . . . . . . • • • 21
Section 4.7. Additional Improvements . . . . . . . . . 21
ARTICLE V - INSURANCE AND CONDEMNATION . . . ' . . . . . 22
Section 5. 1. Insurance. . . . . . . . . . . . . . . � • 22
Section 5.2 . Condemnation. . . . . . . . . . . . • . 23
� Section 5. 3 . Reconstruction or Payment. . . . . . . . . 23
Section 5.4. Relationship to Mortgagee and Tax �
Increment Bonds. . . . . . . . . , , , , 24
ARTICLE VI - ASSIGNMENT AND TRANSFER; INDEMNIF'IICATION;
ASSESSMENT AGREEMENT AND RELATED COVENANTS . . 25
Section 6. 1. Status of Developer; Transfer of �
Substantially All Assets . '. . . . . . . . 25
Section 6. 2 . Transfer of Property and As,signment of
Agreement . . . . . . . . , , , , , 25
Section 6. 3 . Release and Indemnification' Covenants . 26
Section 6.4 . Execution of Assessment Agr ement. . . . 27
Section 6.5. Execution of Assessment Agr�eement to
Additional Improvements . . . . . . . . . 27
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Section 6. 6. Real Property Taxes. . . . . . . . . . . . 2g
ARTICLE VII - BONDS . . . . . . . . . . . . . . . . . 29
Section 7 . 1. Issuance of�Bonds. . . . . . . , 29
Section 7. 2 . Limitations on Financial U�Idertakings�of �
the Port Authority. . . . ' . , , , , , 29
Section 7. 3 . Guaranty of Tax Increment•S�hortfall and�
Other Payments. . . . . I , , , , , , 29
ARTICLE VIII - EMPLOYMENT, CONTRA�TING AND WAGE
REQUIREMENTS . . . . . . . . . . . . 31
Section 8. 1. Affirmative�Action . . . . . . . . . 31
Section 8.2 . Minimum Wages . . . . . . . . . . • • 31
Section 8. 3 . Targeted Business Program . . . . . . . 31
Section 8.4. Housing and Community Devel�pment Act . . 31
Section 8. 5. Preconstruction Conference . . . . . 31
Section 8. 6. Federal Anti-Discrimination and• � �
Affirmative Action Requirem�nts 32
Section 8.7. Federal Section 3 Requirements . . . . . . 32
Section 8.8 . Assistance to Developer . � . . . . . . . 33
ARTICLE IX - MORTGAGE FINANCING . . . . . . . . . . . . 34
Section 9. 1. Limitation Upon Encumbrance�of Property. . 34
Section 9.2 . Approval of Mortgage . . . . . . . . . . . 34
Section 9 . 3 . Notice of Default; Copy to ortgagee . 35
Section 9.4 . Mortgagee's Option to Cure �efaults . . • 35
Section 9. 5. Option for City or Port Autl�ority to Cure•
Default on Mortgage . . . . . . . . 35
Section 9 . 6. Subordination and Modificat�on for the
Benefit of Mortgagees . . � . . . . . . . 36
ARTICLE X - EVENTS OF DEFAULT . . . . . . . . . . . . . . 37
Section 10. 1. Events of Default Defined . . . . . . . � 37
Section 10.2. Remedies on Default . . . . . . . � 38
Section 10. 3 . No Remedy Exclusive . . . . . . . . . . 38
Section 10.4. No Implied Waiver . . . . . . . 39
Section 10. 5. Agreement to Pay Attorney'I Fees and. . �
Expenses . . . . . . . . i . . . . . . . 39
ARTICLE XI - ADDITIONAL PROVISIONS . . . . . . . . . . . 40
Section 11. 1. Conflicts of Interest . . . . • 40
Section 11. 2 . Titles of Articles and Sections . . � � � 40
Section 11. 3 . Notices and Demands . . . . . � • • 40
Section 11.4 . Counterparts . . . . . . . . . . . . . . 41
Section 11. 5. Modification of Agreement, oint Powers
Agreement or Development Pl�an . . . . . . 41
Section 11. 6. Law Governing . . . . . . . . . . . . . 41
Section 11.7. Legal Opinions . . . . . � . . . . . 41
Section 11. 8 . City and Port Authority App�ovals . . . . 41
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Section 11. 9. Expiration and Provisions ,Surviving
Rescission or Expiration. ' . . . . . . . 42
Section 11. 10. Exhibits . . . . . . . . . . . . . . . . 42
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . 43-45
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EXHIBITS !
Exhibit A - Assessment Agreement -
Exhibit B - Legal Description of Development Property
Exhibit C - Energy Park District
Exhibit D - Energy Park Tax Increment District
Exhibit E - Guaranty
Exhibit F - Hazardous Substance Subdistrict ''
Exhibit G - Minimum Improvements
Exhibit H - Developer Indemnification
Exhibit I - Twin City Testing District
Exhibit J - Twin City Testing Tax Increment D' strict
Exhibit K - Energy Park Covenants '
Exhibit L - Form of Developer Counsel Opinion
Exhibit M - Form of First Bank Counsel Opinion
Exhibit N - Hazardous Substance Subdistrict Estimated Costs of
Remedial Action
Exhibit O - Signage Specifications ,
Exhibit P - Schedule of Minimum Market Value �
Exhibit Q - Contract Compliance Specifications
Exhibit R - Prevailing Wage Rate Provisions
Exhibit S - Targeted Business Program
Exhibit T - Amortization Schedule for the Bonds
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DEVELOPMENT AGREEMENT
THIS AGREEMENT, made as of the day of ,
1991, by and between the City of Saint Paul, ',a Minnesota
municipal corporation (the "City") , the Port Authority of the
City of Saint Paul, a public body organized nd existing under
the Constitution and laws of the State of Mi nesota (the "Port
Authority") and , a Minnesota nonprofit
corporation (the "Developer") .
WITNESSETH WHEREAS:
A. By Resolution C.F. No. 276898, the City Council
pursuant to Minnesota Statutes, Chapter 472A (recodified as
Sections 469. 124 to 439. 134) (the "Municipal 'Development Act")
established Energy Park Development District as Development
District No. 3 (the "Energy Park Development District") to
provide impetus for commercial development, t10 increase
employment, to protect pedestrians from vehi le traffic and
inclement weather, to provide the necessary inkage between
peripheral parking facilities and places of mployment and
shopping, to provide offstreet parking to se�vice the shoppers
and employees of the Energy Park District, to provide open space
relief within the Energy Park District, and to provide other
facilities as are outlined in the developmen program for the
Energy Park District;
B. By Resolution C.F. No. 276899, the City Council
pursuant to Minnesota Statutes, Section 472A.'10 (recodified as
Section 469. 131) designated the Port Authority as administrator
of the Energy Park Development District.
' C. By Resolution C.F. No. 276900, the City Council
pursuant to Minnesota Statutes, Sections 273.71 to 273 .78
(recodified as Sections 469. 174 to 469 . 179) ,the "Tax Increment
Act") and Municipal Development Act designatgd the Energy Park
Development District as a tax increment financing district ("the
Energy Park Tax Increment District") and adopted a Development
Program and Tax Increment Financing Plan for 'the Energy Park
District (as from time to time amended, the ' Development Plan")
for the purpose of financing the capital and administration costs
of the Energy Park District.
D. By Resolution C.F. No. 88-2008 the City Council amended
the Energy Park District and Development Pla to incorporate and
provide tax increment financing for the Twin City Testing project
area (the Energy Park Development District a so expanded being
hereinafter called the "Development District' ) , created within
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that project area the Twin City Testing Proj�ct Tax Increment
Financing District (the "Twin City Testing Tax Increment
District") and, pursuant to Minnesota Statutes, Section 469. 131,
designated the Port Authority as administrat r of the entire
Development District. �
E. By Resolution C.F. No. 276900, the City Council and by
Resolution , the Port Authority, a proved a Joint
Powers Agreement For The Administration, Ope ation and Financing
Of The Energy Park Development And Tax Incre ent Financing
District (the "Original Joint Powers Agreement") ; and by
Resolution C.F. No. 89-1466, the City Counci and by Resolution
, the Port Authority approv d a Restated Joint
Powers Agreement for the Administration, Ope ation and Financing
of the Energy Park and Twin City Testing Are� Developments and
Tax Increment Financing Districts (the "Rest ted Joint Powers
Agreement") under which the Original Joint P wers Agreement was
amended and restated.
F. On October 14, 1982, the Port AuthQrity acquired
property in the Energy Park District (the "K�ppers' Site") from
Koppers Coke, Inc. , and as an incident to th t purchase, the Port
Authority received from Koppers an agreement as to the removal of
surface contamination and an indemnification , from and against all
claims arising out of the ground water conta ination of the
Koppers' Site and other environmental hazard�.
G. On December 14, 1984, the Port AutY}ority sold certain
property (the "ETA Site") in the Energy Park District, including
part of the Koppers' Site, to ETA Systems In�orporated ("ETA") .
As an incident to this sale, the Port Authori�ty indemnified ETA
against claims arising from environmental ha2ards arising from
certain "hazardous substances" brought onto he Koppers' Site or
generated thereon prior to December 14, 1984�
H. On September 6, 1985, ETA reconveyed the ETA Site to
the Port Authority and leased it back from t�e Port Authority
under a financing lease, dated September 6, 985 (the "Lease")
under which the Port Authority financed a project (the "ETA
Project") for the ETA Site through the issuance by the Port
Authority of its $8,400, 000 Industrial Develqpment Note, Series
1985-1.
I. ETA has been dissolved and its rights and obligations
under the Lease have been assumed by Control Data Corporation, a
Delaware Corporation ("CDC") ; and under the I�ease CDC has the
option to purchase the ETA Site and ETA Proj�ct (collectively the
"ETA Property") .
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J. Pursuant to a Purchase Agreement da�ed February 27,
1991 (the "Purchase Agreement") : (i) the Por Authority and CDC
have conveyed the ETA Property to
("Developer") upon satisfaction of certain co ditions which
required, among other things, that the Port Authority, City and
Developer enter into this Agreement and that he Developer
thereafter develop the ETA Property and lease�the developed
property (the "Project") to First Bank National Association, a
national banking association ("First Bank") ; nd (ii) the Port
Authority has granted the Developer an option�to purchase
additional property in the vicinity of the ETA Property for
possible future development (the "Option Prop�rty") .
K. In order to achieve the objectives of the Development
Plan and particularly to make the ETA Propert and other land in
the Development District acquired pursuant to�the Purchase
Agreement (collectively the "Development Property") available for
development by private enterprise in conformar�ce with the
Development Plan, the City and Port Authoritylhave determined to
assist the Developer with the financing of certain Project Costs
(as hereinafter defined) to be incurred in th Development
District as more particularly set forth in th�s Agreement.
L. The City and Port Authority believe Ithat the
development and construction of the Project, alnd fulfillment of
this Agreement are vital and are in the best i.nterests of the
City and Port Authority and in accordance wit the public purpose
and provisions of the applicable state and lo�al laws and
requirements under which the Project has been undertaken and is
being assisted.
M. By Resolution C.F. No. 91-351, the City Council,
pursuant to Minnesota Statutes, Sections 469.]�74 to 469. 179, and
Sections 469. 124 to 469. 134: (i) approved es�ablishment of a
hazardous substance subdistrict (the "Hazardo s Substance
Subdistrict") that includes the Koppers ' Site�in the Energy Park
District; and (ii) authorized the amendment of the Development
Program and Tax Increment Financing Plan for e Energy Park
Development District to allow for the use of e�tra tax increments
derived from the Hazardous Substance Subdistrict to pay for
certain hazardous substance costs under the co ditions
hereinafter set forth. By Resolution C.F. No.� , the City
Council, pursuant to the same authority; (x) approved the
issuance of taxable tax increment bonds to pro ide funds to
reimburse the FBS Developer for certain develo�ment costs
($3, 610,000) , to refund and prepay the Port Authority's
$3, 500, 000 Taxable Commercial Development Reve ue Note, Series
1990-1 ($3 ,500, 000) , and to defer principal pa�iments on other
bonds payable from Tax Increments ($640, 000 of capital
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appreciation bonds accreting to a par value at maturity of
$3 , 000, 000) , and further approved the use of 'ITax Increments from
the Energy Park District to secure those bonds; and (y)
authorized the execution of this Agreement and the Second
Restated Joint Powers Agreement for Administ�ation, Operation and
Financing of the Energy Park and Twin City Testing Area
Developments and Tax Increment Financing Dis�ricts (the "Joint
Powers Agreement") to set forth the conditio s on which the
preceding would be accomplished.
N. By Resolution No. , the Po�t Authority has
approved the issuance of the bonds referred �o clause (x) of the
preceding Paragraph K, and authorized the ex cution of this
Agreement and the Joint Powers Agreement.
NOW, THEREFORE, in consideration of the premises and the �
mutual obligations of the parties hereto, ea h of them does
hereby covenant and agree with the other as �follows:
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ARTICLE I !,
DEFINITIONS ,
Section 1. 1. Definitions. All capitalizled terms used and
not otherwise defined herein shall have the fa',llowing meanings
unless a different meaning clearly appears frd'm the context:
Additional Improvements means any improve'ments made to the
Development Property in addition to the Minimuim Improvements, and
any and all improvements made to the Option Pr,operty;
Aqreement means this Agreement, as the sa�me may be from time
to time modified, amended or supplemented; �!
Assessment Aqreement means the agreement,l in the form of the
agreement contained in Exhibit A attached her�'to and made a part
of this Agreement, among the Developer, the C�ty and the Assessor
for the County, entered into pursuant to ArtiGle VI of this
Agreement; �,
Assessor' s Minimum Market Value means the', agreed minimum
market value of the Development Property or Option Property, for
calculation of real property taxes as determir�ed by the assessor -
for the County as provided in Sections 6.4 or16.5 hereof;
*Bonds or Tax Increment Bonds means the Pprt Authority's
$3 , 610, 000 Energy Park Tax Increment Bonds, S�,ries , the
proceeds of which will be used to reimburse thje Developer for
costs incurred in the acquisition and improvemient of the
Development Property; the term "Bonds" shall a'lso include any
bonds or obligations issued to refund any Bonc�s;
Business Dav means any day other than a S,aturday, Sunday,
legal holiday or a day on which the banking ir�stitutions in the
City are authorized by law or executive orderito close;
Citv means the City of Saint Paul; I
Comnletion Date means the date and time qn which the City
issues a Certificate of Occupancy for the Projlect;
Construction Plans means the plans, speci,�fications, drawings
and related documents of the construction worl� to be performed by
the Developer on the Project. The plans (a) sihall be as detailed
" may be revised if these bonds are not � distinct series.
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as the plans, specifications, drawings and r lated documents
which are submitted to the building departme t inspector of the
City; and (b) shall include at least the following: (1) site
plan; (2) site grading and drainage plans; (3) foundation plan;
(4) basement plans; (5) floor plan for each �loor; (6) cross
sections of each (length and width) ; and (7) elevations (all
sides) ;
Countv means the County of Ramsey; �
Developer means and its
successors and assigns;
Developer Indemnification means paragra hs 3 and 4 of the
Remediation and Indemnity Agreement attached hereto as Exhibit H
under which the Port Authority has indemnifi�d the Developer with
respect to certain hazardous substances; '
Development Action Response Plan means �he plan for removal
or remedial actions to be submitted to and a proved by the
Minnesota Pollution Control Agency in connec ion with the
Development Property;
Development District means collectively the Energy Park
District and the Twin City Testing District;
Development Plan means the Development rogram and Tax
Increment Financing Plan for the Development District;
Development Propertv means the property'' described on Exhibit
B attached hereto, including all existing improvements thereon;
Enerqy Park Covenants means the Energy ark Covenants
�ttached hereto as Exhibit K;
Enerqv Park District means the developm�nt district created
by the City Council pursuant to Resolution C. F. No. 276898 and
described in Exhibit C;
Enerqy Park Tax Increment District mean' the tax increment
financing district created by the City Counc' 1 pursuant to C.F.
No. 276900 and described in Exhibit D;
Energy Park Tax Increments means Tax Increments derived from
the Energy Park Tax Increment District;
Event of Default means any of the event' described in
Section 10. 1;
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First Bank means First Bank National A�sociation, a national '
banking association;
First Bank Lease means the lease under which the Development
Property is leased to First Bank as contemplated in the Purchase
Agreement;
Guarantv means the Guaranty Agreement executed by First Bank
in the form attached hereto as Exhibit E, as provided in Section
7. 3 of the Agreement;
Hazardous Substance Subdistrict means t e Hazardous
Substance Subdistrict described in Exhibit H�attached hereto;
HRA means The Housing and Redevelopment Authority of the
City of Saint Paul, Minnesota;
Improvements means collectively the Min�mum Improvements and
any Additional Improvements;
Indemnitees means "Indemnitees" as defi�ed in the Developer
Indemnification;
Joint Powers Agreement means the Second Restated Joint
Powers Agreement for the Administration, Ope�ation and Financing
of the Energy Park and Twin City Testing Area Developments and
Tax Increment Financing Districts, dated , 1991, between
the City and the Port Authority;
Minimum Imbrovements means the initial mprovements
contemplated by this Agreement for the Devel�pment Property,
which are generally described in Exhibit G attached hereto;
Mortqage means any mortgage which secur�s the financing for
the Minimum Improvements or any Additional Improvements and which
is filed with the City and Port Authority;
Municipal Development Act means Minneso�a Statutes, Sections
469 . 174 to 469. 179, as amended;
Net Proceeds means any proceeds paid by an insurer to the
Developer or the Port Authority under a polic�y or policies of
insurance required to be provided and maintained by the Developer
pursuant to Article V of this Agreement and remaining after
deducting all expenses (including fees and disbursements of
counsel) �incurred in the collection of such proceeds;
Option Agreement means the Option Agreea�ent attached as
Exhibit 3 to the Purchase Agreement;
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Option Property means any property acqt�ired and held by the
Developer or First Bank pursuant to the Opti�on Agreement;
Permitted Encumbrances means �
Port Authoritv means the Port Authorit� of the City of Saint
Paul, a body corporate and politic;
Project means initially the Developmen� Property and the
Minimum Improvements provided that during any period that the
Developer holds title to the Option Propert�y, the term Project
shall mean the Development Property, the Op�ion Property and all
Improvements;
Project Costs means all capital costs incurred by the
Developer in connection with the acquisitio�h and construction of
the Project;
Purchase Agreement means the Purchase greement, dated -
February 27, 1991 and originally entered in�o among the Port
Authority, Control Data Corporation and Ryar� St. Paul Limited
Partnership, whose interest has been assign�d to the Developer;
Redemption Date means the earliest dat on which any Bonds
may be redeemed and paid prior to full matu�ity;
Subdistrict Bonds means any bonds issued by the City and
made payable solely from the Subdistrict Ta� Increments and the
proceeds of the bonds;
Subdistrict Tax Increments means any ta�x increments derived
under the Tax Increment Act from the Hazardous Substance
Subdistrict as a result of a reduction in th�e original net tax
capacity pursuant to Section 469. 174, subdivision 7, paragraph
(b) , of the Tax Increment Act, or as a resul�t of the extension of
the period for collection of tax increment f�om the Hazardous
Substance Subdistrict provided for in Section 469. 176,
subdivision 1, paragraph (g) , of the Tax Inc�ement Act, but not
to exceed in the aggregate $5,000, 000;
Tax Increments means the tax incrementsI derived under the
Tax Increment Act from the Tax Increment District (except
Subdistrict Tax Increments) and received by �he Port Authority
under the Joint Powers Agreement;
Tax Increment Act means the Minnesota T x Increment
Financing Act, Minnesota Statutes, Sections �69. 174 through
469 . 180, as amended; I
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Tax Increment Bonds means the Bonds;
Tax Increment District means collectivel the Energy Park
Tax Increment Financing District and the Twin�City Testing Tax
Increment Financing District; � � � _ _
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Termination Date means the date of xpir�ation or:€�` the
Assessment Agreement as provided in Se �tion 6.4�this
Agreement;
Twin Citv Testinq District means the Twin City Testing
Project area included in the Development Dist ict by the City
Council pursuant to Resolution C.F. No. 88-20�8 and described in
Exhibit I attached hereto;
Twin Citv Testinq Tax Increment District means the Twin City
Testing Project Tax Increment District created by the City
Council pursuant to Resolution C.F. No. 88-20p8 and described in
Exhibit J attached hereto; and I
Unavoidable Delav means (a) any extensio� of the "Contin-
gency Date" in the Purchase Agreement from , 1991, but
not beyond , 1991 and (b) delays, outside the control of
the party claiming its occurrence, which are �he direct result of
strikes, other labor troubles, unusually seve e or prolonged bad
weather, acts of God, fire or other casualty to the Minimum
Improvements, litigation commenced by third p�rties which, by
injunction or other similar j udicial action o by the exercise of
reasonable discretion, directly results in delays, or acts of any
federal, state or local governmental unit (ot er than the City or
the Port Authority) which directly result in �elays.
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ARTICLE II �
REPRESENTATIONS AND WARRANTIES
Section 2 . 1. Representations and Warrar�ties of the City and
Port Authoritv. The City and Port Authority make the following
representations and warranties:
(1) The Port Authority is a body corporate and politic
organized pursuant to Minnesota Statutes, Sections 469.001 to
469 . 047; and the City is a municipal corporat',ion existing and
organized under the laws of the State; and t e City and Port
Authority each has been duly authorized to enter into the Joint
Powers Agreement and this Agreement, and to carry out its
respective obligations thereunder.
(2) The Energy Park Tax Increment District and the Twin
City Testing Tax Increment District are each a "redevelopment
district" within the meaning of Minnesota Sta utes, Section
469 . 174, Subdivision 10(2) and were each crea ed, adopted and
approved in accordance with the terms of the ax Increment Act.
(3) The development contemplated by this Agreement is in
conformance with the development objectives set forth in the
Development� Plan.
(4) To provide financial assistance in connection with the
activities to be undertaken by the Developer under this
Agreement: (a) the Port Authority proposes, subject to the
further provisions of this Agreement, to use its best efforts to
issue the Bonds and to use the proceeds there�of to reimburse the
Developer for the payment of a portion of the�, cost of acquiring
and improving the Development Property; and ( ) the City and Port
Authority propose, subject to the further pro isions of this
Agreement, to provide Subdistrict Tax Increme ts and/or the
proceeds of Subdistrict Bonds in support of t e Developer
Indemnification;
(5) The City and, except as otherwise p ovided in the
Developer Indemnification, the Authority make no representation
or warranty, either express or implied, as to the Development
Property or its condition or the soil conditiions thereon, or that
the Development Property shall be suitable fo�r the Developer's
purposes or needs.
(6) The City has made the findings required by Section
469 . 175, Subdivisions 3 and 7, of the Tax Increment Financing Act
and has taken all other action required of the City thereunder,
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except for the preparation and filing of the Development Action
Response Plan and the certification contempl ted under Section
469. 174, subdivision 7, paragraph (b) , of th� Tax Increment Act,
the Hazardous Substance Subdistrict, and has set forth in writing, ,
the reasons and supporting facts for each determination. -
(7) The City and Port Authority will e ercise their best
efforts, at the expense of the Port Authorit and with the
cooperation of the Developer, to secure the aipproval of the
Minnesota Pollution Control Agency to the Development Action
Response Plan; and the City has duly authorized its Director of
the Department of Finance and Management Serv�ices and its
Director of the Department of Planning and E onomic Development
to certify the Hazardous Substance Subdistri t to the Ramsey
County Director of Property Taxation as prov'ded in and upon
satisfying the conditions set forth in Sectidn 3 .4 hereof.
Section 2 . 2 . Representations and Warrar}ties of the
Developer. The Developer makes the followin representations and
warranties:
(1) The Developer is a Minnesota non-p ofit corporation
duly formed and existing under laws of the State.
(2) The Developer has been duly authori,zed to enter into �
this Agreement and to perform its obligation hereunder.
(3) Any Improvements undertaken by the Developer shall be
constructed in accordance with the terms of his Agreement, the
Development Plan and all local, state and federal laws and
regulations (including, but not limited to, environmental,
zoning, energy conservation, building code a d public health laws
and regulations) , except for any variances n cessary to construct
�he Improvements contemplated in any Constru tion Plans approved
by the City.
(4) Before undertaking any Improvements, the Developer will
obtain, or cause to be obtained, all required permits, licenses
and approvals, and will meet all requirements of all applicable
state, local and federal laws and regulation which must be
obtained or met before the such Improvements may be lawfully
constructed.
(5) Neither the execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms nd conditions of
this Agreement is prevented, limited by or c nflicts with or
results in a breach of the terms, conditions or provision of the
Developer's articles of Incorporation or any contractual
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restriction, evidence of indebtedness, agre�ment or instrument of
whatever nature to which the Developer is nbw a party or by which :
it is bound, or constitutes a default under any of the foregoing.
(6) The Minimum Improvements to the D�velopment Property
will be constructed at a cost of not less t�an $25, 000, 000 and a
square footage addition of not less than 24 , 000 square feet of
floor area.
(7) The fair market value of the Deve�opment Property, not
including the value of the Minimum Improvements or any Additional
Improvements, is not less than $4, 300, 000, nd the Developer will
spend enough in construction of the Minimum Improvements, when
combined with the value of the Development roperty and related
site improvements, to generate the Assessor's Minimum Market
Value set forth in Section 6.4 of this Agre�ment. The Developer
estimates that the Assessor's Minimum Market Value set forth in
Section 6.4 of this Agreement is a reasonab�e estimate of the
annual market value for ad valorem tax purp ses.
(8) The Developer will cooperate fullY� with the City and
Port Authority with respect to any litigatidn commenced with
respect to the Project.
(9) The Developer will secure financir�g commitments and/or
available equity sufficient, when added to t�he financing provided
pursuant to this Agreement, to finance the cquisition and
renovation of the Development Property and �nable the Developer
to successfully complete the Minimum Improveoments as contemplated
in this Agreement.
(10) The Developer will cooperate full with the City and
Port Authority in resolution of any traffic,�parking, trash
removal or public safety problems which may arise in connection
with the construction and operation of the P�oject.
(11) The Developer would not undertake' the Project without
the financing provided by the City and Port uthority pursuant to
this Agreement and the Joint Powers Agreemen�.
(12) The Developer expects that, barri g Unavoidable
Delays, the Project will be substantially co�npleted by
, 1992 .
(13) The Developer shall comply with t�e covenants relating
to the Energy Park District set forth in Exhibit K, and all
applicable governmental laws, regulations, r quirements and rules
and prohibitions of public or private nuisan�es with respect to
the use, maintenance and operation of the Project, subject
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however to the right of the Developer to continue any such use or
operation consistent with the other provisions' of this Agreement
and said covenants during the continuance of any lawsuit or other
legal proceeding in which the legality of suc use or operation
is in dispute and is defended by the Develope� in good faith.
�
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ARTICLE III
PURCHASE OF DEVELOPMENT PROPERTY AND PR�JECT ASSISTANCE
Section 3 . 1. Purchase of Development P�operty by Developer.
The Developer agrees to perform its obligati�ns under the
Purchase Agreement; and upon satisfaction of the conditions
precedent set forth in the Purchase Agreement�, the Developer
agrees to purchase and acquire title to the Development Property.
Section 3 .2 . Project Assistance.
(1) The Port Authority has, simultaneo�}sly with the
execution of this Agreement, issued the Bonds to provide
financial assistance for the Project by reimY�ursing the Developer
for up to $3 , 375, 000 of the Project Costs, ar�d has deposited the
proceeds of the Bonds in such amount in to be
disbursed to the Developer upon satisfactioniof the following
conditions precedent:
(a) The Developer has acquired tille to the .
Development Property under conditions which �he City and Port
Authority state are acceptable to them;
(b) The Developer shall be in mat�rial compliance with
all the terms and provisions of this Agreement;
.
(c) The Developer shall have submi�tted to the City
Construction Plans for the Project, and such �Construction Plans
shall have been approved by the City and Port� Authority pursuant
to Section 4 . 2 of this Agreement;
(d) The Developer shall have furn'Ished the City and
Por.t Authority evidence, in a form satisfact�ry to the City and
Port Authority that (i) the Developer has fi�m commitments for
construction or acquisition and permanent fi ancing for the
Project in an amount sufficient, together wit�h equity commitments
and the assistance provided under this Sectiqn, to complete the
Minimum Improvements in conformance with thelConstruction Plans,
(ii) the Minimum Improvements are at least �_� complete; and
(iii) Developer has paid at least $ of the costs of the
Minimum Improvements;
(e) Execution of an Assessment Ag�eement by the City,
the County and the Developer pursuant to Sect�ion 6.4 of this
Agreement;
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(f) Delivery to the City of a gua anty from First Bank
in the form attached hereto as Exhibit E to ssure performance of :
the Developer' s obligations under Section 7.3 of this Agreement;
(g) Receipt of a certificate from the City Building
Inspector certifying that at least percent (_�) of
the Minimum Improvements have been completed; and
(h) Delivery to the City of an ag�eement by the holder
of the Mortgage agreeing to be bound by the ssessor's Minimum
Market Value set forth in the Assessment Agreement.
(i) Receipt by the City of an opi ion of counsel to
the Developer in the form attached hereto as�Exhibit L and an
opinion of counsel to First Bank in the form attached hereto as
Exhibit M;
(j) Receipt by the City of a fully� executed copy of
the First Bank Lease which the City and Port Authority state is
acceptable to them, including provision for �he escrow of real
estate taxes paid by First Bank with an escr�w agent and pursuant
to an escrow agreement acceptable to the Cit and Port Authority;
and �
(k) The Developer or First Bank h s (i) paid or
reimbursed the City and Port Authority for a�l out-of-pocket
expenses and legal fees incurred by the City or Port Authority in ,
connection with the �issuance and the Bonds a d the preparation of
this Agreement, the Joint Powers Agreement a d all related
documents, including all legal fees, which a e paid to or
incurred by the City Attorney's office, and ii) has paid the
City the service fee required to be paid und r Section 4. 6
hereof.
(2) Earnings derived from the investment of Bond proceeds
while held in shall be applied to the
payment of debt service on the Tax Increment Bonds.
Section 3 . 3 . Use of Tax Increments. The City and Port
Authority shall be free to use all Tax Incre�ents for any
purposes for which the Tax Increments may la�fully be used
pursuant to applicable provisions of the Min esota law, and
neither the City nor the Port Authority shall', have any obligation
to the Developer with respect to the use of Tax Increments.
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Section 3 .4 . Developer Indemnification� The City and Port
Authority agree: '
(1) If (a) the Development Action Resp nse Plan has been
filed with the City and (b) upon written dem nd of an Indemnitee
filed with the City and Port Authority, the ort Authority
notifies the City that there are inadquate sources of payment
from which to perform any obligation it woul be required to
perform by the end of that period of time un er the Developer
Indemnification if there were adequate soure s of payment as
provided in the Developer Indemnification, the Director of the
Department of Planning and Economic Developm nt and the Director
of the Department of Finance and Management ervices of the City
shall, on behalf of the City and at the writ en request of the
Indemnitee, promptly certify the Hazardous Substance Subdistrict
to the Ramsey County Director of Property Ta ation pursuant to
Section 469. 174, subdivision 7, paragraph (b , and Section �
469. 174, subdivision 16, of the Tax Incremen Act for the purpose
of paying for costs covered in the demand, but only to the extent
the costs are payable from Subdistrict Tax Imcrements under the
law and do not exceed $5,000, 000 in the aggr gate (the "Excess
Costs") . The certification shall be for suc� period of time as
is required to pay such Excess Costs, including debt service on
any Subdistrict Bonds. ,
(2) Upon certification of the Hazardou� Substance
Subdistrict, the Port Authority shall pay, and shall enter into
all contracts required to pay, all Excess Co�ts, but solely from `
Subdistrict Tax Increments, and if the Subdi trict Tax Increments
are insufficient to pay when due the Excess osts, the Port
Authority shall exercise its best efforts to issue Subdistrict
Bonds to fund the Extra Costs in whole or in' part, so as to
assure timely payment of Excess Costs. In n event shall the
port Authority be liable for the payment of xcess Costs except
and to the extent that there are sufficient ubdistrict Tax
Increments, or proceeds from Subdistrict Bonds, to pay Excess
Costs. The City and Port Authority hereby a ree that the
Subdistrict Tax Increments shall be and here�y are irrevocably
pledged and appropriated to the payment of (�) Excess costs or
(b) debt service on any such Subdistrict Bonds issued by the Port
Authority, all as more fully provided in the Joint Powers
Agreement.
(3) Any remaining Subdistrict Tax Increments shall be used
or distributed in accordance with applicable' law.
,
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(4) In the event that the Port Authorit is unable to
fulfill any or all of its responsibilities un er this Section 3 . 4 :
by reason of the dissolution of the Port Authority, the
assumption of its operations by a trustee or ome other entity,
or the Port Authority's inability to issue bo�ds secured by
Subdistrict Tax Increments, the City shall as ume such
responsibilities, subject to the provisions of the Joint Powers
Agreement. ,
(5) The parties hereto agree that the o�ligations of the
Port Authority and the City under this Section 3 .4 are
unconditional, notwithstanding the continuanc of any Event of
Default, and shall survive termination of thi� Agreement.
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ARTICLE IV
CONSTRUCTION OF MINIMUM IMPRO EMENTS
�
Section 4 . 1. Construction of Minimum Im rovements. The
Developer agrees that it will cause the Mini um Improvements on
the Development Property to be constructed in conformance with
the approved Construction Plans. The DeveloI�er agrees that the
scope and scale of the Minimum Improvementslto be constructed
shall not be significantly less than the sca�pe and scale of the
Minimum Improvements as detailed and outlinejd in the Construction
Plans.
Section 4.2 . Construction Plans. '
(1) The Developer shall comply with th!e design requirements:
set forth in the Energy Park Covenants, incl�ding submission of
the Construction Plans to the Energy Park Delsign Review Committee `,
for review and comment, and shall thereafter cause the
Construction Plans to be provided to the Cit� for approval by the �
City as provided in this Section 4.2 . The Clonstruction Plans
shall provide for the Minimum Improvements to be constructed on
the Development Property, and shall be in co formity with the
Redevelopment Plan, this Agreement, and all �pplicable state and
local laws and regulations. The City shall approve the
Construction Plans in writing if: (a) the Cpnstruction Plans
conform to the terms and conditions of this �Agreement; (b) the
Construction Plans conform to the terms and conditions of the
Development Plan; (c) the Construction PlansI conform to all
applicable federal, state and local laws, orldinances, rules and
regulations and permit requirements; (d) the Construction Plans
are adequate for purposes of this Agreement �to provide for the
construction of the Minimum Improvements; (e!) the Construction
Plans conform to the preliminary plans on file with the Design
Section, Downtown Development Division, Depa�tment of Planning
and Economic Development, City of Saint Paul, and (f) no Event of
Default under the terms of this Agreement ha occurred; provided,
however, that any such approval of the Const�uction Plans
pursuant to this Section 4. 2 shall constitut�e approval for the
purposes of this Agreement only and shall not be deemed to
constitute approval or waiver by the City with respect to any
building, zoning or other ordinances or regulations of the City
and shall not be deemed to be sufficient pla s to serve as the
basis for the issuance of a building permit �if the Construction
Plans are not as detailed or complete as the plans otherwise
required for the issuance of a building permit. The site plan
submitted for the Development Property by the Developer to the
City shall be adequate to serve as the Construction Plans, if
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such site plan fulfills the requirements of t�his Section 4 .2 and
is approved by the City building official. '
(2) The Construction Plans must be rej cted in writing by
the City within 15 days of submission or shal�l be deemed to have
been approved by the City. If the City rejecits the Construction
Plans in whole or in part, the Developer shall submit new or
corrected Construction Plans within 30 days �fter receipt by the
Developer of written notification of the rej ction, accompanied
by a written statement of the City specifying the respects in
which the Construction Plans submitted by the Developer fail to
conform to the requirements of this Section 2. The provisions
of this Section 4.2 relating to approval, re�ection and
resubmission of corrected Construction Plans shall continue to
apply until the Construction Plans have been approved by the
City; provided, however, that in any event t 'e Developer shall
submit Construction Plans which are approved prior to
commencement of construction of the Minimum mprovements.
Approval of the _Construction Plans by the City shall not relieve :
the Developer of any obligation to comply wi h the terms and
provisions of this Agreement, or the provisi n of applicable
federal, state and local laws, ordinances an regulations, nor
shall approval of the Construction Plans by the City be deemed to
constitute a waiver of any Event of Default.
(3) If the Developer desires to make a y material change in
the Construction Plans after their approval by the City, the
Developer shall submit the proposed change ta the City for its
approval. If the Construction Plans, as modified by the proposed
change, conform to the approval criteria lis ed in this Section
4 . 2 with respect to the original Construction Plans and do not
constitute a material modification to the sco e, size or use of
the Project or to the site plan therefor, the City shall approve
the proposed change. Such change in the Cons ruction Plans shall
be .deemed approved by the City unless rejected in writing within
ten days by the City with a statement of the �City's reasons for
such rejection. ,
Section 4 . 3 . Completion of Construction.
(1) Subject to Unavoidable Delays, the eveloper shall have
completed at least 70� of the Minimum Improve�nents by ,
1992 , and shall have substantially completed the construction of
the Minimum Improvements by ,' 1992 . Time lost as a
result of Unavoidable Delays shall be added t�O extend these dates
beyond , 1992 and , 1992,1a number of days
equal to the number of days lost as a result �f Unavoidable
Delays. Al1 work with respect to the Minimum Improvements to be
constructed or provided by the Developer on t�e Development
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Property shall be in conformity with the Con truction Plans as
submitted by the Developer and approved by t e City.
(2) The Developer agrees that it shall cause designated
representatives of the City to be allowed to enter upon the
Development Property during the construction of the Minimum
Improvements to inspect such construction.
Section 4 .4 . Certificate of Occupancy.
(1) Promptly after completion of the Minimum Improvements
and any Additional Improvements in accordanc with the provisions
of this Agreement, the City will furnish the�Developer with a
Certificate of Oceupancy, in accordance with the provisions of
Chapter of the Saint Paul Legislative Code. Such
Certificate of Occupancy shall be a conclusive determination of
satisfaction and termination of the agreemen s and covenants in
this Agreement with respect to the obligatio s of the Developer,
and its successors and assigns, to construct the Minimum
Improvements or such Additional Improvements, as the case may be.
(2) If the City shall refuse or fail t� provide a
Certificate of Occupancy in accordance with the provisions of
this Section 4.4, the City shall, within ten days after written
request by the Developer, provide the Devel�er with a written
statement ir�dicating in adequate detail in at respects the
Developer has failed to complete the Minimum Improvements or such
Additional Improvements, as the case may be, in accordance with
the provisions of this Agreement, or is othe�wise in default
under the terms of this Agreement, and what easures or acts it
will be necessary, in the opinion of the City for the Developer
to take or perform in order to obtain such Certificate of
Occupancy.
Section 4.5. Signacte.
(1) Within seven days after commencem nt of construction on
the Minimum Improvements or any Additional I�mprovements, the
Developer agrees to install a sign at the Pr'oject site subject to
the following:
(a) Specifications for the sign are included as
Exhibit O attached hereto. '
(b) The sign must be carefully m intained and lighted
at night if possible and positioned to be v�sible from the most
heavily traveled street adjacent to the Pro�'ect.
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(c) The City retains the right to �pecify the exact
location of the sign. '
(2) The Developer may remove the sign a� any time after
substantial completion of the Minimum Improve ents or such
Additional Improvements, as the case may be.
Section 4 . 6. Service Fee. On or before commencement of
construction of the Minimum Improvements, the Developer agrees to
pay or cause to be paid to the City a servici�g fee in the amount
of $10, 000.
Section 4 .7. Additional Improvements. No Additional
Improvements shall be undertaken until the Developer has
satisfied, or caused to be satisfied: (a) al of the provisions
in Section 4.2 hereof as if the Additional Im�rovements
constituted Minimum Improvements thereunder, and (b) all of the
provisions in the Option Agreement. I
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ARTICLE V
INSURANCE AND CONDEMNATION
Section 5. 1. Insurance. �
. (1) The Developer will provide and maintain or cause
to be maintained at all times: (a) duri g the process of
constructing the Minimum Improvements, ar�d (b) upon
completion of construction of the Minimum Improvements and
prior to the Termination Date, insurance against loss and/or
damage to the Project under a policy or olicies covering
such risks as are ordinarily insured aga'nst by similar
businesses, under similar circumstances.
(2) The Developer will deposit annually with the Port
Authority copies of policies evidencing all such insurance,
or a certificate or certificates or bindelrs of the
respective insurers stating that such in urance is in force
and effect. Unless otherwise provided i this Article V,
each policy shall contain a provision th t the insurer shall
not cancel or modify it without giving w itten notice to the
Developer and the City at least 30 days before the
cancellation or modification becomes effective. Not less
than 15 days prior to the expiration of a�ny policy, the
Developer shall furnish the Port Authori y evidence
satisfactory to the Port Authority that he policy has been
renewed or replaced by another policy co forming to the
provisions of this Article V, or that th re is no necessity
therefor under the terms hereof. In lieu of separate
policies, the Developer may maintain a siingle policy, or
blanket or umbrella policies, or a combi ation thereof, in
which event the Developer shall deposit ith the Port
Authority a certificate or certificates f the respective
insurers as to the amount of coverage in force upon the
Project. '
(3) The Developer agrees to notify the Port Authority
immediately in the case of damage exceed'ng $25,000 in
amount to, or destruction of, the Projec or any portion
thereof resulting from fire or other cas alty. In the event
that any such damage does not exceed $10 , 000, Net Proceeds
of any such insurance shall be paid dire tly to the
Developer, and the Developer will forthwith repair,
reconstruct and restore the Project to s�bstantially the
same or an improved condition or value a they existed prior
to the event causing such damage and, to the extent
necessary to accomplish such repair, rec nstruction and
restoration, the Developer will apply th Net Proceeds of
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any insurance relating to such damage r�ceived by the
Developer to the payment or reimbursemer�t of the costs
thereof.
(4) Net proceeds of any insurancelrelating to damage -
or destruction to the Project or any po�tion thereof as .a
result of fire or other casualty in an �mount estimated to
equal or exceed $100, 000 shall be payabl,e to a trustee
jointly agreed upon by the Developer, tY�e Port Authority and
the holder of the Mortgage (or in such ather manner as may
be agreeable to the Port Authority, Dev�loper and holder)
and shall be subject to such disburseme�}t provisions as
shall be jointly agreed by the Port Authlority, the Developer
and the holder of the Mortgage. In the Ievent the Project or
any portion thereof are destroyed by fir'e or other casualty
and the damage or destruction is estimat�ed to equal or
exceed $25, 000, then the Developer shall within 90 days
after such damage or destruction, commer�ce to repair,
reconstruct and restore the damaged Project to substantially
the same or improved condition or utility value as they
existed prior to the event causing suchjdamage or
destruction and, to the extent necessary to accomplish such �
repair, reconstruction and restoration, Ithe Developer will
apply the Net Proceeds of any insurance rIelating to such
damage or destruction received by the De!veloper from the
Port Authority to the payment or reimburlsement of the costs
thereof.
(5) The Developer shall complete tl e repair, recon-
struction and restoration of the Project� whether or not the
Net Proceeds of insurance received by th�e Developer for such
purposes are sufficient.
Section 5. 2 . Condemnation. In the event that title to and
possession of the Project or any other materi�l part thereof
shall be taken in condemnation or by the exerFise of the power of
eminent domain by any governmental body or other person (except
the City or the Port Authority) , so long as t�e Assessment
Agreement shall remain in effect, the Developer shall, with
reasonable promptness after such taking, noti�fy the City and the
Port Authority as to the nature and extent oflsuch taking.
Section 5. 3 . Reconstruction or Payment. l Upon receipt of
any Condemnation Award or property insurance proceeds, the
Developer shall use the entire Condemnation A�aard to reconstruct
the Project (or, in the event only a part of he Project has been
taken, then to reconstruct such part) upon th� Development
Property or elsewhere within the Tax Incremen� District;
provided, however, that the Developer may ins ead elect to pay to
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the Project out of the Condemnation Award o property insurance
proceeds, if and to the extent any such Con emnation Award or
property insurance proceeds are sufficient or such purpose,
either: (a) the present value of the sum of' the real property
taxes which would have been assessed upon thle Development
Property and the Minimum Improvements betweein the date of such
condemnation and the Termination Date, such calculation to be
based upon (i) the Assessor's Minimum Market Value specified in
the Assessment Agreement, and (ii) the then-effective mill rate
upon the date of such condemnation, such sum to be discounted to
present value based upon (x) or receipt of said property
insurance proceeds the number of years between the date of such
condemnation and the Termination Date, and ('�y) the average
interest rate on the Bonds, or (b) a sum sufficient to retire the
Bonds immediately, including any interest d e.
Section 5.4. Relationshi to Mort a e and Tax Increment
Bonds. The provisions of Sections 5. 1, 5.2 and 5.3 of this
Agreement shall be subject to the subordina ion, modification and
waiver provisions of Section 9.6 of this Ag eement but shall
otherwise remain in full force and effect w'th respect to the
Developer's obligations to maintain insuran e, notify the Port
Authority and City of any casualty or conde�nation and
reconstruct the Project upon such casualty oir condemnation unless
provision is made to the satisfaction of the Port Authority for -
the payment or discharge of the Bonds and reimbursement of all
other capital and administration costs incurred by the City and
Port Authority in connection with the Project.
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ARTICLE VI
_
ASSIGNMENT AND TRANSFER; INDEMNI�'ICATION;
ASSESSMENT AGREEMENT AND RELATED 'COVENANTS
Section 6. 1. Status of Develober; Tran�fer of Substantially
Al1 Assets. As security for the obligations of the Developer
under this Agreement but subject to the righ�ts of the mortgagee
under any Mortgage, the Developer represents and agrees that it
will maintain its existence as a nonprofit cbrporation and that
the Developer will not dispose of all or sub�stantially all of its
assets or dissolve; provided that the Developer may sell or
otherwise transfer to a partnership or corpo ation organized
under the laws of one of the United States, r an individual, all
or substantially all of its assets as an ent'rety and thereafter
be discharged from liability hereunder (a) i the transferee
partnership, corporation or individual files with the City and
Port Authority an agreement in form and subs ance satisfactory to
the City and Port Authority under which the ransferee assumes in
writing all of the obligations of the Develo er under this
Agreement; and (b) the City and Port Authori y receive (i)
evidence that the Minimum Improvements have een completed or
(ii) such new security from the successor De eloper to assure
completion of the Minimum Improvements as th� City and Port
Authority deem necessary or desirable or receive such evidence as
the City and Port Authority shall reasonably require, including
an opinion of counsel, that the existing Developer will remain
liable hereunder upon a default by the successor Developer with
respect to completion of the Minimum Improvements.
Section 6.2 . Transfer of Pro ert and ssi nment of
Acrreement. Subject to the Option Agreement nd the provisions in
Section 6. 1 hereof, the Developer may make o create or suffer to
be made or created any total or partial sale assignment,
conveyance, or lease, or transfer in any oth r mode or form of or
with respect to this Agreement or the Develo ment Property or any
part thereof or any interest therein, or any contract or
agreement to do any of the same, without the approval of either
the City or the Port Authority. No assignme t by the Developer
of any of its obligations under this Agreeme t shall relieve the
Developer from any liability which has accru d hereunder prior to
such assignment, or from any other obligatio s of the Developer
under this Agreement unless the assignee has' filed with the City
and Port Authority an agreement in form and substance
satisfactory to the City and Port Authority under which the
assignee assumes all such other obligations.
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Section 6. 3 . Release and Indemnificatio Covenants.
(1) The Developer releases the City (except as to the
payment obligations under Section 3.4 hereof) ' the Port Authority, .
(except as to matters for which the Developer is indemnified
under the Developer Indemnification) and thei governing body
members, officers, agents, servants and emplo ees thereof
(hereinafter, for purposes of this Section 6. , the "indemnified
parties") from, covenants and agrees that the indemnified parties
shall not be liable for, and agrees to indemnify and hold
harmless the indemnified parties against, any loss or damage to
property or any injury to or death of any per' on occurring at or
about or resulting from any defect in the Pro 'ect.
(2) Except for any willful misrepr sentation or any
willful or wanton misconduct or any unlawful �ct of the
indemnified parties, the Developer agrees to protect and defend
the indemnified parties, now or forever, and further agrees to
hold the indemnified parties harmless, from a' y claim, demand,
suit, action or other proceeding whatsoever b any person or
entity whatsoever arising or purportedly aris ng (i) from any
violation of any agreement or condition of th s Agreement (except
with respect to any suit, action, demand or other proceeding
brought by the Developer against the Authority to enforce its
rights under this Agreement) or (ii) the acquisition,
construction, installation, ownership, and op' ration of the '"
Project; provided that this indemnification s all not apply to
the Port Authority as to matters for which th Developer is
indemnified under the Developer Indemnificati n nor relieve the
City of its payment obligations under Section 3 .4 hereof. '
(3) Except as may otherwise be pro�ided in the
Developer Indemnification, the indemnified pa ties shall not be
liable for any damage or injury to the person or property of the
Developer or its officers, agents, servants o employees or any
other person who may be about the Project due ' to any act of
negligence of any person, other than any act of negligence on the
part of any such indemnified party or its officers, agents,
servants or employees.
(4) Al1 covenants, stipulations, p�omises, agreements,
and obligations of the Port Authority or City � contained herein
shall be deemed to be the covenants, stipulat�ons, promises,
agreements and obligations of the Port Authority or City,
respectively, and not of any governing body m�mber, officer,
agent, servant or employee of the Port Author ty or City in the
individual capacity thereof.
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Section 6.4 . Execution of Assessment A reement. The
Developer and the City shall execute as soon as the plans and
specifications for the Minimum Improvements are prepared, an
Assessment Agreement in the form attached hereto as Exhibit A,
pursuant to the provisions of Minnesota Stat' tes, Section
469. 177, Subdivision 8, specifying the Asses or's Minimum Market
Value for each phase of the Minimum Improvem nts for calculation
of real property taxes. Specifically, the D veloper shall agree
to the Schedule of Minimum Market Value atta�hed hereto as
Exhibit P (herein referred to collectively as the "Assessor's
Minimum Market Value") . Nothing in the Assessment Agreement
shall limit the discretion of the assessor t assign a market
value to the property in excess of such Asse sor's Minimum Market
Value, nor prohibit the Developer from seeki g through the
exercise of legal or administrative remedies a reduction in such
market value for property tax purposes, prov ded however, that
the Developer shall not seek a reduction of �uch market value
below the Assessor's Minimum Market Value in any year so long as
the Assessment Agreement shall remain in eff ct. The Assessment
Agreement shall remain in effect until March 1, 2008 (the
"Termination Date") . The Assessment Agreeme t shall be certified
by the Ramsey County Assessor as provided in ,Minnesota Statutes,
Section 469. 177, Subdivision 8, upon a finding by the Assessor
that the Assessor's Minimum Market Value represents a reasonable
estimate based upon the plans and specifications for the Minimum
Improvements to be constructed on the Develo ment Property and
the market value previously assigned to the evelopment Property. �
Pursuant to Minnesota Statutes, Section 469. 77, Subdivision 8,
the Assessment Agreement shall be filed for ecord in the office
of the county recorder or registrar of titles of Ramsey County,
and such filing shall constitute notice to any subsequent
encumbrancer or purchaser of the Development Property, whether
voluntary or involuntary, and such Assessmen ' Agreement shall be
binding and enforceable in its entirety agai st any such
subsequent purchaser or encumbrancer, includ'ng the holder of any
mortgage granted to secure financing of the roject.
Section 6.5. Execution of Assessment Aqreement to
Additional Improvements. At any time after a�pproval of any
Additional Improvements under Section 4.7 he eof, the Developer
agrees to execute, at the request of the Cit , from time to time
one or more additional Assessment Agreements which satisfy the
requirements of Section 6.4 after taking int account the
reasonable market value of the Development Property, including
the Additional Improvements made or to be made.
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'Section 6. 6. Real Property Taxes, I
(1) The Developer acknowledges that it ' s obligated under
law and agrees to be personally liable to pa�fi all real property
taxes payable with respect to all parts of the Development
Property acquired and owned by it consistent �lwith the provisions
of the Assessment Agreement and any other st tutory or
contractual duty that shall accrue subsequen to the date of its
acquisition of title to the Development Prop rty (or part
thereof) and until title to the Development roperty is vested in
another entity.
(2) The Developer agrees that prior to the Termination
Date, to the extent any of the following act'ons would reduce the
market value of the Development Property bel w the Assessor's
Minimum Market Value, except in the case of cquisition or
reacquisition of the Development Property by !public entity:
(a) It will not seek administrative review or judicial
review of the applicability of any tax statut�e relating to the
taxation of real property contained in the De elopment Property
determined by any tax official to be applica le to the Project or .
the Developer or raise the inapplicability of any such tax
statute as a defense in any proceedings, including delinquent tax
proceedings; provided, however, "tax statute" does not include
any local ordinance nor resolution levying a tax;
(b) It will not seek administrativ review or judicial
review of the constitutionality of any tax st tute relating to
the taxation of real property contained on th Development
Property determined by any tax official to be applicable to the
Project or the Developer or raise the unconstitutionality of any
such tax statute as a defense in any proceedings, including
delinquent tax proceedings; provided, however', "tax statute�' does
not include any local ordinance or resolution levying a tax;
(c) It will not seek any tax defer al or abatement,
either presently or prospectively authorized under Minnesota
Statutes, Section 469. 181, or any other State or federal law, of
the taxation of real property contained in th Development
Property between the date of execution of thi Agreement and the
Termination Date.
�
* language may have to be modified t reflect non-profit
status of Developer, and aqree ent to pay taxes
nonetheless.
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ARTICLE VII
BONDS '
Section 7. 1. Issuance of Bonds. The Port Authority has,
simultaneously with the execution of this Agr ement, issued the
Bonds in an amount sufficient to provide the eveloper with
$3 , 375, 000 hereunder. The obligation of the ort Authority to
disburse the proceeds of the Bonds shall be s bject to the
limitations provided in Section 7.2 of this Agreement.
Section 7.2. Limitations on Financial Ur�dertakinqs of the
Port Authoritv. Notwithstanding the provisio s of Section 7. 1,
the Port Authority shall have no obligation t the Developer
under this Agreement to disburse the proceeds of the Bonds if any
of the following conditions exist:
(1) The Port Authority is entitled under Section 10. 02
of this Agreement to exercise any of the remedies set forth
therein as a result of an Event of Defau 't;
(2) There has been, or there occur , a substantial
change for the worse in the financial re ources and ability
of the Developer, or a substantial decrease in the financing
commitments secured by the Developer for construction of the
Minimum Improvements, which change(s) makes it substantially
more likely, in the reasonable judgment of the Port
Authority, that the Developer will be una le to fulfill its
covenants and obligations under this Agre ment; or
(3) One or more of the conditions t� disbursement of
Bond proceeds set forth in Section 3 .2 have not been
satisfied.
Section 7. 3 . Guarant of Tax Increment S ortfall and Other
Payments.
(1) The parties reasonably expect that the annual Tax
Increments to be derived from the Minimum Improvements to the
Development Property in any calendar year afte 19 and prior to
the maturity date of the Bonds will exceed the minimum amount
needed to pay when due all principal and inter st maturing in
that year on the Bonds. The Developer agrees hat if for any
reason additional Tax Increments derived from the Minimum
Improvements in any calendar year are less thar� $ * then
the Developer shall pay, upon demand by the Port Author ty, to
the Port Authority the difference between such 'Tax Increments
actually derived and $ ',
# To be calculated on the basis of 360,000 ftZ
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(2) If, at any time after completion of he Minimum
Improvements but prior to the Termination Date less than 680
full-time employees are located at the Develop�nent Property for a '`'
period of more than 180 days in any 12 month period, then the
Developer shall immediately begin making payments to the Port
Authority in an amount sufficient to pay all p incipal and
interest due on the Bonds, such payments to be made in the
amounts and at the times set forth on the Amor ization Schedule
attached hereto as Exhibit T.
(3) Prior to the issuance of the Bonds, the Developer shall
deliver to the City a guaranty in the form attached hereto as
Exhibit E fully executed by First Bank and gua ' anteeing
performance of the Developer's obligation to p y any shortfall in
Tax Increments as provided in subdivision (1) nd Developer's
obligation to make payments due on the Bonds u der subdivision
(2) of this Section 7.3 . '
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ARTICLE VIII
EMPLOYMENT, CONTRACTING AND WAGE REQUIREMENTS ,
Section 8. 1. Affirmative Action. Dev loper hereby agrees
to (a) avoid and to require its contractors and subcontractors to
avoid all discriminatory practices prohibit d by section 183 . 03-
183 .032 of the Saint Paul Legislative Code, and (b) to comply
with the affirmative requirements in employn►ent provided by
section 183. 04 of the Saint Paul Legislative Code. The goals for
affirmative action shall be to have in the total project work
force 15� Minority laborers, 6$ Minority sk;illed craft, and 4�
Female laborers/skilled craft combined, whi n goals Developer
agrees to make a good faith effort to achie e; but with a minimum
of 10� Minority and Female laborers combine and a minimum of 4�
Minority and Female skilled craft combined. The procedures to be
followed in order to establish a good faith effort to meet said
goals are outlined in Exhibit Q, "Contract Compliance
Specifications", attached to this Agreement'� and fully
incorporated herein. In the event of any i consistency between
this Section 8 . 1 and Exhibit S, this Sectio 8. 1 shall control.
Section 8 .2 . Minimum Wages. In accordance with City
Council Resolution No. 278233 and HRA Resolution No. 82-2/25-4, _ •
the Developer agrees to include the prevail�ng wage rate �
provisions of Section 82 . 07 of the Saint Pa l Administrative
Code, which, together with applicable wage ates and other
documents to be included in any bid specifi ation for the
Project, is attached hereto as Exhibit R.
Section 8 . 3 . Tarcreted Business Proara�. In accordance with
the provisions of Chapter 81, Saint Paul Lec�islative Code, the
Developer hereby agrees to require its cont actors and all
subcontractors to comply with the Targeted usiness Program goals
and requirements as set forth in Exhibit S, "Targeted Business
Program", which is attached hereto and full� incorporated herein.
Section 8.4. Housina and Community Development Act. The
Developer agrees to comply with the require�pents of Section 109
of the Housing and Community Development Ac of 1974, as amended,
of Sections 504 and 794 of the Age Discrimi ation Act of 1975, as
amended, and the rules and regulations of t e Secretary of
Housing and Urban Development relevant ther�to (24 CFR Parts 8,
146 and 570) .
Section 8.5. Preconstruction Conferen e. It is a condition
of the Agreement that the Developer must re uire its contractor
on any Project improvement financed with Ta Increments under
Sections 3 . 2 and 3 . 3 and all then known sub ontractors to attend,
and the Developer must also attend, a preconstruction conference
conducted by the City staff. These conferences are held for the
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benefit and information of all participating c ntractors and
attendance is a required condition. Each area f compliance is
reviewed by the appropriate City staff inember �and forms are
distributed for documentation and reporting. City staff will
explain the documentation at this time and will provide ongoing
technical assistance in an effort to keep the �ceport requirements
up to date.
Section 8. 6. Federal Anti-Discrimination and Affirmative
Action Requirements. Developer and its subconitractors shall
comply with Executive Order 11246, as amended by Executive Order
12086, and the regulations issued pursuant thereto found at 41
CFR Chapter 60 which provide that no person sh' ll be
discriminated against on the basis of race, co or, religion, sex,
or national origin in all phases of employment during the
performance of this federally assisted constru tion contract and
all subcontracts entered into in performance of this contract by
Developer or any subcontractor. As specified in Executive Order
� 11246 and the implementing regulations, contractors and
subcontractors on Federal or federally assiste construction
contracts shall take affirmative action to ens re fair treatment
in employment, upgrading, demotion, or transfe , recruitment or
recruitment advertising, layoff or termination rates of pay, or
other forms of compensation and selection for training and
apprenticeship.
Section 8.7. Federal Section 3 Re uireme ' ts. In accordance
with the provisions of Section 3 of the Housin and Urban
Development Act of 1968, 12 U.S.C. , Sec. 1701u Section 3) , the
Developer in the performance of this contract, �, to the greatest
extent feasible, shall: .
(1) provide opportunities for train�ng and employment
to lower income persons residing in the City o Saint Paul, and
(2) enter contracts for work to be ontracted with
business concerns, including but not limited tc� individuals or
firms doing business in the field of planning, consulting,
design, architecture, building construction, rehabilitation,
maintenance, or repair, which are located in or owned in
substantial part by persons residing in the Se en County
Metropolitan Area.
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Section 8.8. Assistance to Developer. Th City shall
assist the Developer and its contractors with c arifications and
interpretations of federal, state and local requirements as
specified in this Agreement. Developer or its contractor shall
notify the City if and when such assistance is required and City
staff shall provide technical and professional ssistance in such
form as necessary to insure all federal, state nd local
regulations and requirements are being addresse . The compliance
with the rules and regulations set forth in thi� Agreement shall
remain the responsibility of the Developer.
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ARTICLE IX I
MORTGAGE FINANCING I
Section 9. 1. Limitation Ubon Encumbrancelof Property.
(1) Subsequent to the Developer acquirinc� title to the
Development Property and prior to the completi n of the Minimum
Improvements, as certified by the City, neithe� the Developer nor
any successor in interest to the Development Property or any part
thereof shall engage in any financing or any ot�her transaction
creating any mortgage or other encumbrance or ien upon the
Development Property, other than Permitted Enc�mbrances, whether
by express agreement or operation of law, or suffer any
encumbrance or lien to be made on or attach tolthe Development
Property, other than Permitted Encumbrances, except:
(a) for the purposes of obtaining funds only to the
extent necessary for making the Minimum Imjprovements
(including, but not limited to, labor and materials,
equipment, professional fees, real estate �taxes,
construction interest, organization and other indirect costs
of development, costs of constructing the �Iinimum
Improvements, an allowance for contingencies, costs of
issuance of any bond or note issue to fundj construction or ��:j
acquisition of the Project, amounts required to fund any
bond or note reserves relating to construc�tion or
acquisition of the Project, and amounts required to fund any
required escrow accounts) ; and
(b) only upon the prior written appr�bval of the City
in accordance with Sections 9. 1 and 9.2 of this Agreement.
(2) The City shall not approve any Mortga�e which does not
contain terms that conform to the terms of Sect�.on 9.5 of this
Agreement, except as provided in Section 9. 6 of this Agreement.
Section 9.2 . Approval of Mortgage. The City shall approve
a Mortgage if:
(1) the City first receives a copy o� all mortgage
documents;
(2) the mortgage loan, together withlother funds
available to the Developer, will, in the r asonable judgment
of the City, be sufficient to construct th� Minimum
Improvements;
(3) the City is entitled under SectiQn 10.02 of this
Agreement to exercise any of the remedies $et forth therein
as a result of an Event of Default; and i
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(4) the City determines that the terms of the Mortgage
conform to the terms of Section 9. 5 of this Agreement.
Section 9 . 3 . Notice of Default: Copy to Mortqagee. '
Whenever the City shall deliver any notice r demand to the
Developer with respect to any breach or defa�ult by the Developer
in its obligations or covenants under the Ag�reement prior to
completion of the Minimum Improvements, the City shall at the
same time forward a copy of such notice or emand to each holder
of any Mortgage authorized by the Agreement�at the last address
of such holder shown in the records of the City.
Section 9.4 . Mort a ee' s O tion to Cure Defaults. After
any breach or default referred to in Section 9. 3 of this
Agreement, each such holder shall (insofar as the rights of the
City are concerned) have the right, at its option, to cure or
remedy such breach or default (or such breac or default to the
extent that it relates to the part of the De�velopment Property
covered by its mortgage) and to add the cost' thereof to the
Mortgage debt and the lien of its Mortgage; provided, however,
that if the breach or default is with respec�t to construction of
the Minimum Improvements, nothing contained in this Section or
any other Section of this Agreement shall be deemed to require
such holder, either before or after foreclosure or action in lieu
thereof, to undertake or continue the constr ction or completion
of the Minimum Improvements (beyond the exte t necessary to
conserve or protect Minimum Improvements or onstruction already '
made) , provided that any such holder shall not devote the
Development Property to a use inconsistent w th the Development
Program or this Agreement without the agreem�ent of the City.
Section 9. 5. Option for City or Port Authority to Cure
Default on Mortgage.
(1) Any Mortgage executed by the Devel per with respect to
the Development Property or any improvements thereon (including,
without limitation, the Improvements) shall rovide that, in the
event that the Developer is in default under�such Mortgage, the
holder of the Mortgage shall notify the City and Port Authority
in writing of:
(a) the fact of the default;
(b) the elements of the default; and
(c) the actions required to cure �he default.
(2) If the default is an "Event of Default" under such
Mortgage, which shall entitle such holder thereof to foreclose
upon the Development Property, the Minimum I provements or any
portion thereof, and any applicable grace pe iods have expired,
the City and Port Authority shall have, and each Mortgage
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executed by the Developer with respect to the Development
Property or any portion thereof or any impro�vements thereon shall
provide that the City and Port Authority sha11 have, a reasonable
opportunity to cure the "Event of Default" . '
Section 9. 6. Subordination and Modific�tion for the
Benefit of Mortgaqees.
(1) In order to facilitate the obtaining of financing for
the construction or purchase of the Minimum xmprovements by the
Developer, the City agrees to subordinate its rights under this
Agreement to the holder of the Mortgage for the purposes
described in Section 9. 1 (a) of this Agreemen�, provided that the
Mortgage or a subordination agreement provid�s that if the holder
of the Mortgage shall foreclose on the Develbpment Property, the
improvements thereon, or any portion thereof� or accept a deed to
the Development Property in lieu of foreclosure, it shall consent
to the Assessor's Minimum Market Value set forth in the
Assessment Agreement.
(2) In order to facilitate the obtaining of financing for
the construction of the Minimum Improvements� the City agrees
that it shall agree to any reasonable modification of this
Article IX or waiver of its rights hereunder' to accommodate the
interests of the holder of the Mortgage, prouided, however, that
the City determines, in its reasonable judgment, that any such
modification(s) will adequately protect the �egitimate interests `
and security of the City with respect to the', Project and the
Development Program. ,
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ARTICLE X
EVENTS OF DEFAULT
Section 10. 1. Events of Default Define . The following
shall be "Events of Default" under this Agre ment and the term
"Event of Default" shall mean whenever it is used in this
Agreement any one or more of the following e ents:
(1) Failure by the Developer to cause the construction
of the Minimum Improvements to be commenced and/or completed
pursuant to the terms, conditions and limita ions of Article IV.
(2) Failure by the Developer to s bstantially observe
or perform any other covenant, condition, ob igation or agreement
on its part to be observed or performed under this Agreement, but
only if (a) the default has not been cured within 30 days after
the City or Port Authority has given written, notice of the
default to the Developer and (b) the Develop r does not provide
assurances to the City and Port Authority re sonably satisfactory
to them that the default will be cured as so n as reasonably
possible.
(3) The Developer shall
(a) file any petition in ban ruptcy or for any
reorganization, arrangement, compo ition, readjustment,
liquidation, dissolution, or simil r relief under the
United States Bankruptcy Act of 19 8, as amended or
under any similar federal or state law; or
(b) make an assignment for t e benefit of its
creditors; or
(c) admit in writing its ina ility to pay debts
generally as they become due; or '
(d) be adjudicated a bankrupt or insolvent, or if
a petition or answer proposing the' adjudication of the
Developer, as a bankrupt or its re rganization under
any present or future federal bank uptcy act or any
similar federal or state law shall be filed in any
court and such petition or answer shall not be
discharged or denied within 90 days after the filing
thereof; or a receiver, trustee or liquidator of the
Developer, or of the Project, or p rt thereof, shall be
appointed in any proceeding brough against the
Developer, and shall not be discha ged within 90 days
after such appointment, or if the eveloper, shall
cause to or acquiesce in such appointment.
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(4) The holder of any Mortgage on he Development
Property or any improvements thereon, or any �ortion thereof,
commences foreclosure proceedings as a result of any default
under the applicable mortgage documents.
(5) Any representation made by the Developer in this
Agreement should be untrue or misleading in a y material respect.
(6) Failure by the Developer to timely pay when due
all ad valorem real property taxes assessed with respect to the
Development Property, or to pay any shortfall in Tax Increments
derived from the Development Property as requ'red by Section 7.3
of this Agreement.
(7) Transfer of any interest in th Developer, the
Development Property or this Agreement in vio�ation of the
provisions of Article VI.
Section 10. 2. Remedies on Default. Whe ever any Event of
Default referred to in Section 10. 1 occurs an is continuing- the
City or Port Authority, as specified below, m y take any one or
more of the following actions: ,
(a) The City and Port Authority may suspend their
respective performance under this Agreement until they receive
assurances from the Developer, deemed adequat by the City and
the Port Authority, that the Developer will c re its default and
continue its performance under this Agreement.
(b) The City may withhold the Certificate of
Occupancy.
(c) The City and the Port Authorit ' may take any
action in law or equity, including legal or a inistrative
action, which may appear necessary or desirable to collect �ny
payments due under this Agreement or the Guaranty, or to enforce
performance and observance of any obligation, agreement, or
covenant of the Developer under this Agreement or First Bank
under the Guaranty. ,
Section 10. 3 . No Remedy Exclusive. No remedy herein
conferred upon or reserved to the City and the Port Authority is
intended to be exclusive of any other availabl remedy or
remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy givien under this
Agreement or now or hereafter existing at law r in equity or by
statute. No delay or omission to exercise any right or power
accruing upon any default shall impair any suc 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 als often as may be
deemed expedient.
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Section 10.4. No Implied Waiver. In the vent any
agreement contained in this Agreement should be �breached by any
party and thereafter waived by any other party, such waiver shall_
be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent, previous qr subsequent
breach hereunder.
Section 10.5. A reement to Pa Attorne 's Fees and
Expenses. Whenever any Event of Default occurs a�nd the Port
Authority or City shall employ attorneys or incur other expenses
for the collection of payments due or to become due or for the
enforcement or performance or observance of any 'obligation or
agreement on the part of the Developer herein c ntained, the
Developer agrees that it shall, on demand there or, pay to the
City or Port Authority the reasonable fees of s ch attorneys and
such other expenses so incurred by the City or he Port
Authority.
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ARTICLE XI
ADDITIONAL PROVISIONS
Section 11. 1. Conflicts of Interest. Nol'member of the
governing body or other official of the Port A thority or City
shall have any financial interest, direct or ir�direct, in this
Agreement, the Development Property or the Mini,mum Improvements,
or any contract, agreement or other transactior� contemplated to
occur or be undertaken thereunder or with respect thereto, nor
shall any such member of the governinq body or other official
participate in any decision relating to the Agreement which
affects his or her personal interests or the in,terests of any
corporation, partnership or association in whic he or she is
directly or indirectly interested. No member, �fficial or
employee of the City or Port Authority shall be personally liable
to the Authority or City in the event of any default or breach by
the Developer or successor or on any obligation's under the terms
of this Agreement.
Section 11. 2 . .Titles of Articles and Sect'ons. Any titles
of the several parts, articles and sections of he Agreement are
inserted for convenience of reference only and shall be
disregarded in construing or interpreting any o� its provisions.
Section 11. 3. Notices and Demands. Excep� as otherwise ,,
expressly provided in this Agreement, a notice, ldemand or other ,;;�
communication under this Agreement by any party' to any other -
shall be sufficiently given or delivered if it {�s dispatched or
registered by registered or certified mail, postage prepaid,
return receipt requested, or delivered personal�y, and
(a) in the case of the Developer is �ddressed to or
delivered personally to: i
(b) in the case of the City is addre�sed to or
delivered personally to the City at:
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Director
Department of Planninjg & Economic
Development !
1300 City Hall Annex
25 W. Fourth Street
Saint Paul, Minnesotal' S5102
(c) in the case of the Port Authori�ty, is addressed or
delivered personally to the Port Authority at:
Port Authority of thelCity of Saint Paul
1900 Landmark Towers
345 St. Peter Street
St. Paul, Minnesota 55102
Attention: President
or at such other address with respect to any s ch party as that
party may, from time to time, designated in wr�ting and forward
to the other, as provided in this Section.
Section 11.4 . Counterparts. This Agreem�nt may be executed
in any number of counterparts, each of which shall constitute one
and the same instrument.
Section 11.5. Modification of A reement 'Joint Powers
Aareement or Development Plan. Neither the Ci y nor the Port
Authority shall, without the written prior consent of the
Developer and the mortgagee under any Mortgagei (if the Mortgage
requires such consent) , modify, or consent to the modification
of, either this Agreement, the Joint Powers Ag eement or the �
Development Plan so as to materially impair th� Developer's right :
to the proceeds of Subdistrict Bonds under Section 3 .2 hereof.
Section 11. 6. Law Governina. This Agree�ent will be
governed and construed in accordance with the l�aws of the State
of Minnesota.
Section 11.7. Legal Opinions. Upon exec�tion of this
Agreement, each party shall, upon request of t e other parties,
supply the other parties with an opinion of it legal counsel to
the effect that this Agreement is legally issu�d or executed by,
and valid and binding upon, such party, and enforceable in
accordance with its terms.
Section 11.8. Cit and Port Authorit A rovals. Any
approval, execution of documents, or other action to be taken by
the City or the Port Authority pursuant to this Agreement, for
the purpose of carrying out the terms of this �reement or for
the purpose of determining sufficient performan'�e by Developer
under this Agreement, may be made, executed or taken by the
Director of the Department of Planning and Econ�pmic Development
for the City and by the President of the Port Authority for the
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Port Authority without further approval by he City Council or
the Board of Commissioners.
Section 11.9. Exuiration and Provisions Surviving
Rescission or Expiration. Unless sooner te�minated or rescinded
as provided herein, this Agreement shall ex ire on March 2 next
succeeding the latest date on which the Ene gy Park Tax Increment
District or Hazardous Substance District sh uld expire in
accordance with law. Sections 6. 3 and 7.4 2lereof shall survive
any rescission, termination or expiration og this Agreement with
respect to or arising out of any event, occurrence or
circumstance existing prior to the date the�eof; and in any event
Sections 3 . 3 and 3 .4 hereof shall survive t rmination of this
Agreement.
Section 11. 10. Exhibits. Exhibits A �hrough T attached
hereto are incorporated herein by reference and made a part
thereof.
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IN WITNESS WHEREOF, the City, the Port uthority and the
Developer have caused this Agreement to be d ly executed in their
respective names and on their behalf, on or as of the date first
above written.
CITY OF SAINT AUL
By
Its
By
Its
This is a signature page to the Development �greement dated
, 1991, by and between the City of Saint Paul,
the Port Authority of the City of Saint Paul 'and
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PORT AUTHORITY 0�' THE CITY OF
SAINT PAUL '
By
Its
By
Zts
�
This is a signature page to the Development Agreement dated
, 1991, by and between the City of Saint Paul,
the Port Authority of the City of Saint Paul ar�d
I
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_ fDeve�oper]
By
Its
By
Its
I
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This is a signature page to the Development �greement dated
, 1991, by and between the City of Saint Paul,
the Port Authority of the City of Saint Paul and
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EXHIBIT A
ASSESSMENT AGREEMENT'
THIS AGREEMENT, dated as of this ay of ,
19_ by and among the City of Saint Pau1, .M'�innesota (the "City") ,
, a Minnesota non-profit corporation (the
"Developer") , and the Assessor for Ramsey Ca,unty (the
"Assessor") . I
WITNESSETH
WHEREAS, on or before the date hereof the City and Developer
have entered into a Development Agreement da�ted ,
1991 (the "Development Agreement") regardinglcertain real
property located in the City (the "Developme'nt Property") which
property is legally described as follows:
WHEREAS, it is contemplated that pursuant to said Develop-
ment Agreement, the Developer will undertake the renovation and
expansion of an existing commercial facility for use as
commercial space and related improvements (t e "Project") on the
Development Property.
WHEREAS, the City and Developer desire o establish a
minimum market value for the Development Pro erty and the
improvements constructed or to be constructe thereon, pursuant
to Minnesota Statutes, Section 469. 177, Subd'vision 8.
WHEREAS, the Developer has acquired the Development
Property. ,
WHEREAS, the City and the Assessor have' reviewed plans and
specifications for the Project.
NOW, THEREFORE, the parties to this Agr�ement, in
consideration of the promises, covenants and agreements made by
each to the other, do hereby agree as follow�:
1. On January 2 , 1992 the minimum mar et value, which
shall be assessed for the Project, shall be �
dollars ($ ) . On January 2, 1993 ,
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the minimum market value, which shall be as�essed for the
Project, shall be dollars
($ ) . The parties to t is Agreement expect
that the construction of the Project will b completed on or
before , 19 , and that f�om and after such
date the minimum market value which shall b assessed for such
Project shall be dollars (� ) ,
2 . The minimum market value herein eStablished shall be of
no further force and effect and this Agreem�nt shall terminate on
March 2, 2008.
3 . This Agreement shall be promptly �+ecorded by the
Developer along with an attached copy of Mi nesota Statutes,
Section 469. 177, Subdivision 8, with the Co�nty Recorder of
Ramsey County, Minnesota. The Developer sha�ll pay all costs of
recording. I
4 . The Assessor represents that he ha�s reviewed the plans
and specifications for the improvements and that the "minimum
market value" as set forth above is reasonab�le.
5. This Agreement shall inure to thel�enefit of and be
binding upon the successors and assigns of tl e parties.
6. Nothing herein shall limit the discretion of the
Assessor to assign a market value to the Dev�elopment �Property in
excess of such minimum market value nor prohibit the Developer
from seeking through the exercise of legal o� administrative
remedies a reduction .in such market value for property tax
purposes, provided however, that the Develop�er shall not seek a
reduction of such market value below such mi�imum market value in
any year so long as this Agreement shall rem�in in effect.
IN WITNESS WHEREOF, the City, the Develpper and the Assessor
have caused this Agreement to be executed in their names and on
their behalf all as of the date set forth ab�ve.
CITY OF SAINT �AUL
(SEAL)
By �
Its
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Its
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[Develop r]
By
Its
By
Its
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Signature page for Assessment Agreement date
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The undersigned assessor, being legally responsible for the
assessment of the above described property upon completion of the
improvements to be constructed thereon, hereUy certifies that the
market value assigned to such land and improv�ements upon
completion shall not be less than $ I
ASSESSOR
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This Instrument Drafted By:
Briggs and Morgan, P.A.
2200 First National Bank Building
St. Paul, Minnesota 55101
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Signature page for Assessment Agreement dated
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STATE OF MINNESOTA ) i
) ss. , -
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me this
day of , 1991, by I
the and , the �
of the City of Saint Paul, Minnesota, a Minnesota
corporation. I
Notary P blic
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Acknowledgment page for Assessment Agreement dated
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STATE OF MINNESOTA ) j
) ss.
COUNTY OF RAMSEY ) I
The foregoing instrument was acknowledgeJd before me this
day of , 1991, by
and , the �
and of , a Minnesota
non-profit corporation, on behalf of said corporation.
.
Notary Pub ic
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Acknowledgment page for Assessment Agreement clated
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STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY ) ,
The foregoing instrument was acknowledg�ed before me this
day of , 1991, by I �
the Assessor for the City of Saint Paul.
Notary Pu lic
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Acknowledgment page for Assessment Agreement dated
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EXHIBIT B
Legal Description of Development �roperty
Lot Five (5) , Block One (1) , Energy Park No. 2, except
the West 45.25 feet thereof and Lot One (1) , Block One (1) ,
Energy Park No. 4, according to the recorded plat thereof,
County of Ramsey, State of Minnesota. Subject to Easements
of Record.
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EXHIBIT C
Energy Park District
[to be provided by Katy Lindl�lad]
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EXHIBIT D
Energy Park Tax Increment District
[Parcel I.D. #s to be provided by �ulie Kimble]
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EXHIBIT E
, Form of Guaranty
In order to induce the Port Authority of the City of Saint
Paul, Minnesota (the "Port Authority") , to ssue its
$ Energy Park Tax Increment B�nds, Series , some
of the proceeds of which will be used to pa certain capital and
administration expenses within Energy Park �evelopment District
which benefit , a Minnesota non-profit
corporation (the "Developer") , the undersigr�ed, which has entered
into a lease of with the Develloper, as lessor,
hereby unconditionally guarantees payment of all sums payable by
the Developer in accordance with the terms o�f Section 7.3 (1) and
Section 7. 3 (2) of that certain Development Agreement between the
Port Authority, the City of Saint Paul and t�he Developer, dated
as of , 1991 (the "Development Ay�reement") , such sums
being:
[detail to be provided] +
No notice of any renewal, compromise or extension of the
Development Agreement or of any modification in the terms of the
same need to be given to the undersigned, who hereby consent to
each of such acts. The undersigned hereby e�pressly waive
presentment, demand, notice of nonpayment, p otest and notice of
protest on any obligation and also acceptanc� of this guaranty.
� The undersigned agree that possession of this instrument of
guaranty by the City shall be conclusive evidence of due delivery
hereof by the Undersigned. I
This guaranty shall be construed accord�,ng to the laws of
the State of Minnesota, in which state it sh�ll be performed by
the undersigned.
Dated as of the day of , 1991.
FIRST NATIONAL ' BANK ASSOCIATION
By
Its
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EXHIBIT F
Hazardous Substance Subdist�ict
[to be provided by Katy Lindblad]
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E%HIBIT G
Minimum Improvements
[to be provided by Julie Kin�ble]
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EXHIBIT H
Developer Indemnification
[to be provided by Robyn Ha�nsen]
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EXHIBIT I
Twin City Testing Distri�t
[to be provided by Katy Lindblad]
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EXHIBIT J
Twin City Testing Tax Increment District
[Parcel I.D. #s to be provided by Ju ie Kimble]
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EXHIBIT R
Energy Park Covenants
[to be provided by Julie Kimble]
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EXHIBIT L ,
Form of Legal Opinion of Develope 's Counsel
Port Authority of the City
of Saint Paul
1900 Landmark Towers ,
345 St. Peter Street �
Saint Paul, Minnesota 55102
City of Saint Paul '
Re: Develo ment A reement b I
p g y and between the City of Saint
Paul, Minnesota, and the
Port Authority of the City of Saint Paul.
Gentlemen:
As counsel for , a Minnesota
non-profit corporation (the "Company") , and in connection with
the execution and delivery of a certain Dev lopment Agreement
(the "Development Agreement") between the Campany and the City of
Saint Paul, Minnesota (the "City") and the Port Authority of the
City of Saint Paul, dated as of , 1991, we hereby
render the following opinion: '
We have examined the original certifie copy, or copies
otherwise identified to our satisfaction as being true copies, of
the following: '
(a) The of the Company;
(b) Resolution of the Company at which action was
taken with respect to the transactions covered by this
opinion; '
(c) The Development Agreement and the Guaranty;
and such other documents and records as we ave deemed relevant
and necessary as a basis for the opinion se forth herein.
Based on the pertinent law, the foregoing examination and
such other inquiries as we have deemed appropriate, we are of the
opinion that:
1. The Company has been duly organize and is validly
existing as a non-profit corporation under he laws of the State
of Minnesota and is qualified to do busines in the State of
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Minnesota. The Company has full power and a thority to execute,
deliver and perform in full the Development �,greement; and the
Development Agreement has been duly and validly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the other parties
thereto, is in full force and effect and is valid and legally
binding instrument of the Company enforceabl in accordance with
its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other laws rel�ting to or affecting
creditors' rights generally.
2 . The consummation of the transaction contemplated by the
Development Agreement and the carrying out o the terms thereof,
will not result in a violation of any provis on of, or in default
under, the of the Co pany or any
indenture, mortgage, deed of trust, indebted�ess, agreement,
judgment, decree, order, statute, rule, regulation or restriction
to which the Company is a party or by which it or its property is
bound or subject. '
Very truly you s,
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EXHIBIT M
Form of Legal Opinion of First Bank,'s Counsel
Port Authority of the City
of Saint Paul
1900 Landmark Towers
345 St. Peter Street
Saint Paul, Minnesota 55102 I
City of Saint Paul
Re: Guaranty executed by First Bank National Association,
in favor of the Port Authority of the City of Saint
Paul and the City of Saint Paul
Gentlemen:
As counsel for First Bank National Assoc�ation, a National
banking association ("First Bank") and in connection with the
execution and delivery of a certain guaranty 'I(the "Guaranty")
from First Bank in favor of the Port Authorit� of the City of
Saint Paul and the City of Saint Paul dated , 1991,
and on the basis of our examination of , We
hereby render the following opinion:
1. First Bank has been duly organized nd is validly
existing under the laws of the United States �f America and is
qualified to do business in the State of Minn sota. First Bank
has full power and authority to execute, deli�ier and perform in
full the Guaranty, and the Guaranty has been duly and validly
authorized, executed and delivered by First B nk, is in full
force and effect, and is a valid and legally inding instrument
of First Bank enforceable in accordance with ts terms, except as
the same may be limited by bankruptcy, insolv ncy, reorganization
or other laws relating to or affecting credit�rs' rights
generally.
Very truly your$,
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EBHIBIT N
Hazardous Substance Subdistrict Estimated
Costs of Remedial Actio�
[to be provided by Katy Lin�blad]
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EBHIBIT O
Signage Specifications
[to be provided by Katy Lind�lad]
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EXHIBIT P
Schedule of Minimum Market alue
[to be provided by Katy Lindblad or �Tulie Kimble]
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EXHIBIT Q
Contract Compliance Specifications
[to be provided by Katy Lindblad�
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Prevailing Wage Rate Provis�ons
[to be provided by Katy Lindb�lad)
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Targeted Business Program I
[to be provided by Katy Lindblld]
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EXHIBIT T
Amortization Schedule for the Bonds
[to be provided by Robyn Han�en]
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