91-2083�RI�I��►�. ,_ �3
Council File #
Green Sheet #
RESOLUTION
CITY OF SAIN UL, MINNESOTA
,
Presented By
Referred To Committee: Date
RESOJ,UTION APPROVYNG THE EXECUTION OF A
SECONb AMENDED AND RESTATED JOINT P4W�F2S AGREEMENT
F�R THE ENERGY PARK AND TWIN CITX •TESTING
TAX INCREM�NT D�3TRYCTS
AND AISpROVING THE ISSUANCE OF HONDS
IN CONNECTION W�TH THE FIRST BANK PROJ�CT
WHEREASt
1. The City Council of the City af Saint Pau� has
pxeviously adop�ed its Reso�ution C.F. No. 9�-355, pursuant to
Minnesota statutes, sections 4�s.��4 to 469.�79 and sectior,s
469.124 to 469. 134, approved certain matters pertaininq to the
Energx Park and Twin City Testing Tax Increment District, .
particu].arly as they related to the relocating o� the First Bank
Operations Division to the former ETA Bui.ldlrig in �nergy Park
{the "Project") ; and
2. Addxtional negotiations have been undertaken� in
connection with the Project, includi.ng negotiations between the
Por� Authority of the.City Qt Saint Paul (the ��Port Authority")
and the Executive Director of �the Sair�t Pau1 Department of
' P12�r►�ing and Economic Develapmenti, pertaining to cexta�n
agreements rela�xng �o the Energy P�rlt and Twin Gity Testing Tax
Inarement 17istricts, whzch agreements are more fully set forth in
the. staf� report provided to the City Cou»cil; and
3. Implementation af the agreements which have been rea�hed
between the City and the Port Autharity will require the �
-executio� of a Second Amended and Restated Joint Powers ,
Agreem�nt, and a Dev�lopment Agxeement, in substan�fally the for�t
which has been provided to tbe City Council; and
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4. Under a previous resolu�ion, prelimir�ary approval had
been given by the City Council to the issuance of taxable tax
increment bonds by the Port Authozity fr� the appraximate
principal amounts o£: $3,610,OOa �d be used tc� provide funds to
pay for certain of the costs incuxred in the Projectj $3,500,Op0
to redeem the autstanding Twin City Testing �ands; and $640, 400
ih tace amount af capital appreciation bonds accreting to a par
value at maturity of $3,00O,OOQ to redue� stress on the Energy
Park Tax Incremen� District iri th� earlier years; and
5. It is now proposed that ta facilitate financing of the
Project either the City or The Housing and Redevelopment
Authority af the City of Saint Paul, Minnesota (the '�HRA�{) ,
instead of the Port Authority, issue appx�oximately (i) $4,825,000
of tax increment bonds to provide funds to pay for Cer�ain of the
costs incurred in cannection wxth the Project, and (2) $ , , �qs��,�o
of tax increment bonds and $Z,9-25,Of�O���sf land rent revenue bond� . �
to regund the Port Authority's �putstanding Industrial Park
Revenue Bonds so as to free u� r s�rves needed to �ielp make
financing of the Project �Eeasibl (said bonds of the City or HRA
hexein c2�lled the "Bonds") ; and � �s�' ��o
6. The Avnds are to be paid from e�ther Energy Paxk �'ax
Increments or District Revenues, pursuant �o the terms of the
Second Amended and Restated �oint Powers Agreement referred to
above; and
7. The Port Authority has requested that the City Council
(a) give its preliminary approval to the issuance a� �he Honds
rePerred to here�n, subject ta final approval of the details af
said issue$ by the issuer and {b) authorize the executiorl ot the
Second Amended and Restated Joint Powers Agreement and
Uevelopment Agreement, re�erred to abave.
RESOLVED: •- �
.�
].. The City Council hereby approves the execu�ion o£ the , {
Second Amended and Restated Joint Powers Agreement and
DeveZopment Agreement in substantia�.ly the forms cu�rrently on
file, to reflect the reorderxng af the Tax Increment Drioriti s
and the othez agreements reached b�tween the Port Authority, the
City of Saint Paul and the HRA with respect to the E»erqy 8�trk
Tax Increment D�.strict in general and the Project, fn pas icular,
o�r otherwise deemed necessary in connection with the is�y�anc• of
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the Sonds, al]. as more fully set forth xn the st�ff report anc�
this Resolution.
2. The City Counci2. hereby gives preliminary approval to
the issuance of the aforesaid Bonds for the purpose de�cribed,
the exact details of which, including, but no� Iimited to,
provisions ralating to principal amount, ma�urities, i��erest
rates, d�scov.rit and redemp�ion axe ta be determined by the
issuer, pursuant to a resolution to be adopted by the gaverning
body oE the fssuer.
3. The City Council hereby directs Planning and Economic Development
staf� working with legal counsel and Port Authority staff, to prepare
appropriate documentation, including a supplemental Joint Powers Agreement
between the City Council, the Port Authority and the Housing Redevelopment
Authority to permit the aforesaid bonds to be issued by the Housing
Redevelopment Authority.
Yeas Navs Absent Requested by Department of:
imon c
osw�tz � � � "
�a e'� _y�
et man
iUSOn � �`— BY�
�- vs
Adopted by Council: Date NOV 7 1991 Form Appr d by C' tt rney
Adoption C tified by Counc'1 Secretary gy:
i �� ��t'��
By' '� Approved by Mayor for Submis on to
� � � � 7 19�� Council .
Approved by yor Date �
g , � �.
By:
Y'
PUBU�H�n
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A
�a�
DEPARTMENT/OFFICE/COUNCIL DATE�IT�TED N� � 1 O�H
Planning & Economic Development 11 6 91 G R E E N SH E ET
CONTACT PERSON&PHONE INITIAUDATE INITIAUDATE
�DEPARTMENT DIRE R �CITY COUNCIL
Katy Lindblad. 228-3309 ASSIGN �CITYATTORNEY �CITYCLERK
MUST BE ON COUNCIL AGENDA BY(DATE) NUMBER FOR ❑BUDGET DIRECTO �FIN.&MOT.SERVICES DIR.
ROUTING
ORDER MAYOR(OR ASSISTANn Dave Gonta
November 7, 1991 � �
e s
TOTAL#OF SIGNATURE PAGES 1 (CLIP ALL LOCATIONS FOR SIGNATURE)
ACTION REQUESTED:
Approval of Energy Park Second Amended and Restated Joint Powers Agreement, Development
Agreement, and bond issuance.
RECOMMENDATIONS:Approve(A)or Re)ect(R) PERSONAL SERVICE CONTRACTS MUST ANSWER THE FOLLOWING�UESTIONS:
_PLANNING COMMISSION _ CIVIL SERVICE COMMISSION �• Has this person/firm ever worked under a contract for this department?
_CIB COMMITTEE _ YES NO
2. Has this person/firm ever been a city employee?
_STAFF — YES NO
_ DISTRICT COURT _ 3. Does this person/firm possess a skill not normally possessed by any current city employee?
SUPPORTS WHICH COUNCIL OBJECTIVE? YES NO
Explain all yes answers on separate sheet and attach to green shset
INITIATIN(i PROBLEM,ISSUE,OPPORTUNITY(Who,Whet,When,Where,Why):
Proposed rehabilitation of existing 120,000 scr, ft. ETA building and 240,000 sa. ft
addition for FBS Data Center in Energy Park.
ADVANTAGES IF APPROVED:
l. Tax base increased.
2. 855 employees in Enerqy Park.
3. Potential f_or another 160,000 expansion in 3-4 years.
DISADVANTAGES IF APPROVED:
DISADVANTAGES IF NOT APPROVED:
1. FBS will likely locate Data Center in another municipality.
2. ETA site continues to be vacant.
TOTAL AMOUNT OF TRANSACTION $ 10�025�000 bonds — COST/REVENUE BUDGETEO(CIRCLE ONE) YES NO
Port Authority or City or HRA bonds
FUNDINGSOURCEFn�,..�57�7 1�a��� Tax Tnrraman� an�i j,�y�� ACTIVITYNUMBER
FINANCIAL INFORMATION:(EXPLAIN) Leases
NOTE: COMPLETE DIRECTIONS ARE INCLUDED IN THE GREEN SHEET INSTRUCTIONAL
MANUAL AVAILABLE IN THE PURCHASING OFFICE (PHONE NO. 298-4225).
ROUTING ORDER:
Below are correct routings for the five most frequent rypes of documents:
CONTRACTS(assumes authorized budget exists) COUNCII RESOLUTION (Amend Budgets/Accept.arants)
1. Outside Agency 1. Department Director
2. Department Director 2. City Attorney
3. Ciry Attorney 3. Budget Director
4. Mayor(for contracts over$15,000) 4. Mayor/Assistant
5. Human Rights(for contracts over$50,000) 5. City Council
6. Finance and Management Services Director 6. Chief Accountant, Finance and Management Services
7. Finance Accounting
ADMINISTRATIVE ORDERS(Budget Revision) COUNCIL RESOLUTION (all others, and Ordinances)
1. Activiry Manager 1. Department Director
2. Department Accountant 2. City Attorney
3. Department Director 3. Mayor Assistant
4. Budget Director 4. City Council
5. Ciy Cierk
6. Chief Accountant, Finance and Management Services
ADMINISTRATIVE ORDERS(all others)
1. Department Director
2. City Attorney
3. Finance and Management Services Director
4. City Clerk
TOTAL NUMBER OF SIGNATURE PAGES
Indicate the#of pages on which signatures are required and paperclip or flag
sech of these pa�ss.
ACTION REQUESTED
Describe what the projecUrequest seeks to accompiish in efther chronologi-
cal order or order of importance,whichever is most appropriate for the
issue. Do not write complete sentences. Begin each item in your list with
a verb.
RECOMMENDATIONS
Complete if the issue in question has been presented before any body, public
or private.
SUPPORTS WHICH COUNCIL OBJECTIVE?
Indicate which Council objeotive(s)your projecUrequest supports by listing
the key word(s) (HOUSING, RECREATION, NEIGHBORHOODS, ECONOMIC DEVELOPMENT,
BUDOET,SEWEA SEPARATION). (SEE COMPLETE LIST IN INSTRUCTIONAL MANUAL.)
PERSONAL SERVICE CONTRACTS:
This information will be used to determine the cirys liabiliry for workers compensation claims,taxes and proper civil service hfring rules.
INITIATING PROBLEM, ISSUE, OPPORTUNITY
Explain the situation or conditions that created a need for your project
o�request.
ADVANTAGES IF APPROVED
Indicate whether this is simply an annual budget procedure required by Iaw/
charter or whether there are specific ways in which the City of Saint Paul
and its citizens will benefit from this projecVaction.
DISADVANTAGES IF APPROVED
What negative effects or major changes to existing or past processes might
this projecUrequest produce if it is passed(e.g.,traffic delays, noise,
tax increases or assessments)?To Whom?When? For how long?
DISADVANTAGES IF NOT APPROVED
What will be the negative consequences if the promised actlon is not
approved?Inabiliry to deliver service?Continued high traffic, noise,
accident rate?Loss of revenue?
FINANCIAL IMPACT
Although you must tailor the information you provide here to the issue you
are addressing, in general you must answer two questions: How much is it
going to cost?Who is going to pay?
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DEVELOPMENT AGREEMENT
BY AND AMONG
CITY OF SAINT PAUL
AND
PORT AUTHORITY OF THE CITY OF SAINT PAUL
AND
RYAN ST. PAUL LIMITED PARTNERSHIP
This Document Drafted by:
BRIGGS AND MORGAN (RLH)
2200 First Bank Bldg.
Saint Paul, Mn. 55101
23T39
TABLE OF CONTENTS
TO
DEVELOPMENT AGREEMENTS
Pa e
ARTICLE I - DEFINITIONS . . . . . . . : . . . . . . . . . 5
Section 1. 1. Definitions . . . . . . . . . . . . . . . 5
ARTICLE II - REPRESENTATIONS AND WARRANTIES . . . . . . . . . 10
Section 2. 1. Representations and Warranties of the
City and Port Authority . . . . . . . . . 10
. Section 2.2. Representations and Warranties of the
Developer . . . . . . . . . . . . . . . . 11
ARTICLE III - PURCHASE OF DEVELOPMENT PROPERTY AND PROJECT
ASSISTANCE . . . . . . . . . . . . . . . . . . 14
Section 3 . 1. Purchase of Development Property by
Developer . . . . . . . . . . . . . . . . 14
Section 3.2. Project Assistance . . . . . . . . . . . . 14
Section 3 .3. Use of Tax Increments . . . . . . . . �6 ��;�
Section 3.4. Developer Indemnification . . . . . . �6 ���:�
�:,�
ARTICLE IV - CONSTRUCTION OF MINIMUM IMPROVEMENTS . . . . 3� � ::.�
Section 4. 1. Construction of Minimum Improvements . �8 ;`:'��;
Section 4.2. Construction Plans . . . . . . . . . . ��`������
3$ ;�;'p
Section 4.3 . Completion of Construction . . . . . . �-A ;�:8�
Section 4.4. Certificate of Occupancy . . . . . . . �9 �:�:
Section 4.5. Signage . . . . . . . . . . . . . . . �-9 :��
Section 4.6. Service Fee. . . . . . . . . . . . . . �} ��
Section 4.7. Additional Improvements . . . . . . . � ;��
ARTICLE V - INSURANCE AND CONDErIIdATION . . . . . . . . . � ?�;:�'
Section 5.1. Insurance. . . . . . . . . . . . . . . � :�:��
Section 5.2. Condemnation. . . . . . . . . . . . . � ;�:�
Section 5.3. Restoration of Site . . . . . . . . . � ��:
ARTICLE VI - ASSIGNMENT AND TRANSFER; INDErIIdIFICATION;
� ASSESSMENT AGREEMENT AND RELATED COVENANTS . �-} �2��!
Section 6. 1. Status of Developer; Transter of �������
Substantially All Assets . . . . . . . �3 2'Z
Section 6.2. Transfer of Property and Assiqnment of �������
- Agreement . . . . . . . . . . . . . �3 :2:�'
Section 6.3. Release and Indemnification Covenants �4 �::��
Section 6.4. Execution of Assessment Agreement. . �-5 "�:���:�'
Section 6.5. Execution of Assessment Agreement to �����'�����'
Additional Improvements . . . . . . . �5 ;2�4:
Section 6.6. Real Property Taxes . . . . . . . . . . . �:�;
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23T39
AnTT/'�T L� fITT _ D/'11Tf11� �
&��#e�-�,-1� T_-..____ ..� ne,�,�.,� Section 7.2. Limitations on
Financial Undertakinqs of
the Port Authority. . . . . . . . . . � ;��
Section 7.3. Guaranty of Tax Shortfall and "�`��`i'
-Other�Payments. . . . . . . . . . . . � �'&
:k.`.�Y. ..iF.+i.<
ARTICLE VIII - EMPLOYMENT, CONTRACTING AND WAGE
<
REQUIREMENTS . . . . . . . . . . . . . . . �-9 ��:�
Section 8.1. Affirmative Action . . . . . . . . . . �3 �:�
Section 8.2. Minimum Wages . . . . . . . . . . . . �9 ;��
h..:.::::.....:
Section 8.3. Tarqeted Vendor Development Program . �3 �;�:��
Section 8.4. Housinq and Community Development Act �-9`����:�:
" Section 8.5. Preconstruction Conference . . . . . . �9 :��
Section 8.6. Federal Anti-Discrimination and `�`�'"`
Affirmative Action Requirements . . . 3-9 >��
Section 8.7. Federal Section 3 Requirements . . . . 3-9 .��
Section 8.8. Assistance to Developer . . . . . . . 3� :�t� •
h;:�s
ARTICLE IX - MORTGAGE FINANCING � [Intentionally omitted] -3� �
ARTICLE X - EVENTS OF DEFAULT . . . . . . . . . . . . . . 33� �+ ��
Section 10. 1. Events of Default Defined . . . . . . 33 : :�
Section 10.2. Remedies on Default . . . . . . . . . 3�4 � : '
Section 10.3. No Remedy Exclusive . . . . . . . . . 3�4 � •�
Section 10.4. No Implied Waiver . . . . . . . . . . . .
Section 10.5. Agreement to Pay Attorney's Fees and
Expenses . . . . . . . . . . . . . . 3 5 �:�
,.::h
ARTICLE XI - ADDITIONAL PROVISIONS . . . . . . . . . . . 3-6 ;��
Section 11. 1. Conflicts of Interest . . . . . . . . 3�6 :3::�
Section 11.2. Titles of Articles and Sections . . . 3-6 �::.�
4•.y}}}ti
Section 11.3. � � Notices and Demands . . . . . . . . . 36 �3:�
Section 11.4. Counterparts . . . . . . . . . . . . 3� :��
Section 11.5. Modification of Agreement . . . . . . 3� :��
\vv•.
Section 11.6. Law Governing . . . . . . . . . . . . 3� ��
Section 11.7. Legal opinions . . . . . . . . . . . 3� ���
w.>
Section 11.8. City and Port Authority Approvals . . 3� :��
Section 11.9. Expiration and Provisions Surviving ""'``
Rescission or Expiration. . . . . . 3& ���
Section 11.10. Exhibits . . . . . . . . . . . . . . 3S 3<��
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SIGNATURES- . . . . . . . . . . . . . . . . . . . . 3�9�-4� 3:�n��=:��
.,;.�;.»r,N.N...
23739
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 Zndemnification
Exhibit I - Twin City Testing District
Exhibit J - Twin City Testing Tax Increment District
Exhibit K - Form of Developer Counsel Opinion
Exhibit L - Form of First Bank Counsel Opinion
Exhibit M - Hazardous Substance Subdistrict Estimated Costs of
Remedial Action
Exhibit N - Signage Specifications
Exhibit O - Schedule of Minimum Market Value
Exhibit P - Affirmative Action/Equal Employment Opportunity
Requirements
Exhibit Q - Prevailinq Wage Rate Provisions
Exhibit R - Targeted Business Program
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23739
' ' i
DEVELOPMENT AGREEMENT
THIS AGREEMENT, made as of the day of November, 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 and existing under the Constitution
and laws of the State of Minnesota (the "Port Authority") and
Ryan St. Paul Limited Partnership, a Minnesota limited
partnership (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, to increase
employment, to protect pedestrians from vehicle traffic and
inclement weather, to provide the necessary linkage between
peripheral parkinq facilities and places of employment and
shopping, to provide offstreet parkinq to service the shoppers
and employees of the Energy Park District, to provide open spacs
relief within the Energy Park District, and to provide other
facilities as are outlined in the development 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) desiqnated 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 designated the Energy Park
Development District as a tax increment financinq district ("the
Energy Park Tax Increment District") and adopted a Development
Program and Tax Increment Financinq Plan for the Enerqy Park
District (as from time to time amended, the "Development Plan'!) '
for the purpose of financinq the capital and administration costs
o� the Energy Park District.
D. By Resolution C.F. No. 88-2008 the City Council amended
the Energy Park District and Development Plan to incorporate and
provide tax increment financing for the Twin City Testing project
� area (the Energy Park Development District as so expanded being
hereinafter called the "Development District") , created within
23739
that project area the Twin City Testing Project Tax Increment
Financinq District (the "Twin City Testinq Tax Increment
District")� and, pursuant to Minnesota Statutes, Section 469. 131,
designated the Port Authority as administrator of the entire
Development District.
E. By Resolution C.F. No. 277273, the City Council and by
Resolution 1876, the Port Authority, approved and executed a
Joint Powers Agreement For The Administration, Operation and
Financing Of The Energy Park Development And Tax Increment
Financing District (the "Oriqinal Joint Powers Aqreement") which
has previously been amended by the Restated Joint Powers
Agreement for the Administration, Operation and Financing of the
Enerqy Park and Twin City Testing Area Developments and Tax
Increment Financinq Districts which was dated Auqust 30, 1989 and
approved by Resolution C.F. No. 89-1466 of the City Council and
by Resolution 3167 of the Port Authority (collectively, the
"Original Agreement") .
F. On October 14, 1982, the Port Authority acquired
property in the Energy Park District (the "Koppers' Site") from
Koppers Coke, Inc. , and as an incident to that purchase, the Port
Authority received from Koppers an aqreement as to the removal ot
surface contamination and an indemnification from and against all
claims arising out of the ground water contamination of the
Koppers' Site and other environmental hazards.
G. On December 14, 1984, the Port Authority sold certain
property (the "ETA Site") in the Energy Park District, including
part of the Koppers' Site, to ETA Systems Incorporated ("ETA") .
As an incident to this sale, the Port Authority indemnified ETA
against claims arising from environmental hazards arisinq from
certain "hazardous substances" brouqht onto the Roppers' 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 the Port Authority
under a financing lease, dated September 6, 1985 (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 Development Note, Series
1985-1.
I. ETA has been dissolved and its riqhts and obligations
under the Lease have been assumed by Control Data Corporation, a
Delaware Corporation ("CDC") ; and under the Lease CDC has the
option to purchase the ETA Site and ETA Project (collectively the
"ETA Property") .
23739
2
J. Pursuant to a Purchase Agreement dated February 27,
1991 (the "Purchase Aqreement") : (i) the Lease has been
terminated and the Port Authority has conveyed the ETA Property
to Developer upon satisfaction ot certain conditions which
required, among other thinqs, that the Port Authority, City and
Developer enter into this Aqreement and that the Developer
thereafter develop the ETA Property and lease the developed
property (the "Project") to First Bank National Association, a
national banking association ("First Bank") ; and (ii) the Port
Authority has granted the Deve�oper an option to purchase
additional property in the vicinity of the ETA Property for
possible future development (the "Option Property") .
K. In order to achieve the objectives of the Development
Plan and particularly to make the ETA Property and other land in
the Development District acquired pursuant to the Purchase
Agreement (collectively the "Development Property") available for
development by private enterprise in conformance with the
Development Plan, the City and Port Authority have determined to
assist the Developer with the financinq of certain Project Costs
(as hereinafter defined) to be incurred in the Development
District as more particularly set forth in this Aqreement.
L. The City and Port Authority believe that the
development and construction of the Project, and fulfillment of
this Agreement are vital and are in the best interests of the
City and Port Authority and in accordance with the public purpose
and provisions of the applicable state and local laws and
requirements under which the Project has been undertaken and is
beinq assisted.
M. By Resolution C.F. No. 91-351, the City Council,
pursuant to Minnesota Statutes, Sections 469.174 to 469.179, and
Sections 469.124 to 469.134: (i) approved establishment of a
hazardous substance subdistrict (the "Hazardous Substance
Subdistrict") that includes the Roppers' Site in the Energy Park
District; and (ii) authorized the amendment of the Development
Program and Tax Increment Financinq Plan for the Energy Park
Development District to allow for the use of extra tax increments
derived from the Hazardous Substance Subdistrict to pay for
certain hazardous substance costs under the conditions
hereinafter set forth. By Resolution C.F. No. 91-1413, the City
Council, pursuant to the same authority; (x) approved the
issuance of taxable tax increment bonds to provide funds to
reimburse Developer for certain development costs ($3,610,000) ,
to refund and prepay the Port Authority's $3,500,000 Taxable
Commercial Development Revenue Note, Series 1990-1 ($3,500,000) ,
and to defer principal payments on other bonds payable from Tax
Increments ($640,000 of capital appreciation bonds accreting to a
23739 .
3
par value at maturity of $3,000,000) , and further approved the
use of Tax Increments from the Enerqy Park District to secure
those bonds; and (y) authorized the execution of .this Agreement
and the Second Restated Joint Powers Aqreement for
Administration, Operation and Financinq of the Energy Park and
Twin City Testing Area Developments and Tax Increment Financinq
Districts (the ��Joint Powers Agreement") to set forth the
conditions on which the preceding would be accomplished.
N. By Resolution No. 3316, the Port Authority has approved
the issuance of the bonds referred to clause (x) of the preceding
Paragraph M, and authorized the execution of this Aqreement and
. the Joint Powers Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual obligations of the parties hereto, each of them does
hereby covenant and agree with the other as follows:
23739
4
_FROM BRIGGS MORGAN SP CWED)11.06. '91 14s38 N0.3� }� P� Z
�+t/��'
��� 91
ARTICLE I
DEFINITION3
Section 1.1. Definitions. Al1 capitalized terms used and
not otherwise defa.ned herein sball have the follawing m�anings
unless a different meanir�g �Zearly �pp�ars from �he context:
Additional Improvements means any improvements made to the
Development Property in addition to the Minimum Improvements, and
an�r and all improvements made to the Option Property;
Aareem�nt means thfs Agreement, as the same may be from time
to time modified, amended ar supp�.emerited;
Amorti2ati�n Schedul� means the schedule oP principal and
interest payments actually due on th� Bonds, as provided to the
Developer and First Bank upon issuance of the Bonds;
A�sessment Ac�reement means the �greement, in the form of the
agreement contained in Exhibit A �ttached hereto and made a part
of this Agreement, among the Developer, the City and the Assessor
far th� County, entered into pursuant to Article VI of this
Agreement;
Assessor�s Minim�,m Market Value means the agreed minimum
market va].ue of the Developmer�t Property, f�r calculation of �eal.
property taxes as determir��d by the sssessor for the County as
provided ir� Sections 6.4 �� 6.� he�e�f;
Bonds ox Tax �ncrement Bonds means $3,625, 000 (or such other
portion as determ�.ned i� ac�ox�dance w�th the second �nd thixd
sentences of Section 3.2 (1) ) pro rated aver the total issue of
s�g�al obl�.�ic�ation Energy Park Tax Increment Bonds payable from
Tax Inc ments anct to be issued by either the Port Au��ri�y, t�i'e
Czty r HRA o o ain funds from which to reimburse the Developer�
for cas s incurred in the aaquisitian and improvement af the
Development Property as provided in Section 3.2 hereof; the term
„Bonds" sha�l also include any bonds or obligations issued to
refund any Bonds;
Susiness Dav means any day other than a Saturda�, Sunday,
lega� holiday or a day on which the banking institutions in the
City sre authqri�ed by law or exeo�tive c�rder to close;
Citv means the City of Saint Paul;
z�ss
5
Construction Plans means the plans, specifications, drawings
and related documents of the construction work to be performed by
the Developer on the Project; including both Minimum Improvements
and Additional Improvements. The plans (a) shall be as detailed
as the plans, specifications, drawinqs and related documents --
which are submitted to the building department inspector of the
City; and (b) shall include at least the following: (1) site
plan; (2) site grading and drainaqe plans; (3) foundation plan;
(4) basement plans; (5) floor plan for each floor; (6) cross
sections of each (lenqth and width) ; and (7) elevations (all
sides) ;
Countv means the County of Ramsey;
Developer means Ryan St. Paul Limited Partnership and its
successors and assigns;
4evelooer Indemnification means the obliqations of the Port
Authority under paragraphs 1, 3 and 4 of the Remediation and
Indemnity Agreement attached hereto as Exhibit H under which the
Port Authority has agreed to perform certain remediation and has
indemnified the Indemnitees with respect to certain hazardous
substances;
Develo�ment Action Response Plan means any plan for removal
or remedial actions which may be submitted to and approved by the
Minnesota Pollution Control Aqency in connection with the
Development Property or the Option Property;
Development District means collectively the Energy Park
District and the Twin City Testinq District;
DeveloDment Plan means the Development Proqram and Tax
Increment Financing Plan for the Development District;
Development Property means the property described on Exhibit
B attached hereto, including all existing improvements thereon;
Energv Park Covenants means the Energy Park Covenants filed
of record in the office of the Ramsey County Recorder as Document
No. ��� � � : .
- Enerqy Park District means the development district created
by the City Council pursuant to Resolution C. F. No. 276898 and
described in Exhibit C;
Energy Park Tax Increment District means the tax increment
financing district created by the City Council pursuant to C.F.
No. 276900 and described in Exhibit D;
23739
6
Enerc,� Park Tax Increments means Tax Increments derived from
the Energy Park Tax Increment District;
�vent of Defau�t means any of the events described in
Section 10.1;
First Bank means First Bank National Association, 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;
Guaranty 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 the Hazardous
Substance Subdistrict described in Exhibit F attached hereto;
� means The Housing and Redevelopment Authority of the
City of Saint Paul, Minnesota;
Improvements means collectively the Minimum Improvements and
any Additional Improvements;
Indemnitees means "Indemnitees" as defined in the Developer
Indemnification;
Joint Powers Agreement means the Second Rsstated Joint
Powers Agreement for the Administration, Operation and Financing
of the Energy Park and Twin City Testinq Area Developments and
Tax Increment Financinq Districts, to be entered into between the
City and the Port Authority;
Minimum Imorovements means the initial improvements
contemplated by this Agreement for the Development Property,
which are generally described in Exhibit G attached hereto;
� Mortqaae means any mortgage which '
v{.., M...., . . . .':p
� � � • � and �
w�ic ��s e w e �amsey C un y ecor er;
Munici�a? Development Act means Minnesota Statutes, Sections
469.174 to 469. 179, as amended;
Ontion Aqreement means the Option Agreement attached as
Exhibit 3 to the Purchase Agreement;
23739 �
7
O�tion Pronertv means any property acquired and held by the
Developer or First Bank pursuant to the Option Aqreement;
Port Authoritv means the Port Authority of the City of Saint
Paul, a body corporate and politic;
Proj ect means initially the Development Property and the
Minimum Improvements provided that during any period that the
Developer holds title to the Option Property, the term Project
shall mean the Development Property, the Option Property and all
Improvements;
. Proiect Costs means all capital costs incurred by the
Developer in connection with the acquisition and construction of
the Project;
Purchase Aqreement means the Purchase Agreement, dated
February 27, 1991 and originally entered into among the Port
Authority, Control Data Corporation and Developer as such
Purchase Agreement has been amended;
Redemption Date means the earliest date on which any Bonds
may be redeemed and paid prior to full maturity;
Subdistrict Bonds means any bonds issued by the ��
���i��:�:�:�'>x���;��� City and made payable solely from th�e"�"�
..:.<:,:.:::;:::.:.:;;�::«::.:�<::;::..:..�....::..:>....,<,<:.::.� p .�.
Subdistrict Tax Increments and the roceeds of �e �.�.,� � bonds;
:4'
Subdistrict Tax Increments means any tax increments derived
under the Tax Increment Act from the Iiazardous Substance
Subdistrict as a result of a reduction in the original net tax
capacity pursuant to Section 469.174, subdivision 7, paragraph
(b) , of the Tax Increment Act, or as a result of the extension of
the period for collection oF tax increment from the Hazardous
Substance Subdistrict provided for in Section 469.176,
subdivision 1, paragraph (q) , of the Tax Increment Act, but not
to• exceed in the agqregate $5,000,000;
� Tax Increments means the tax increments derived under the
Tax Increment Act from the Tax Increment District (except
Subdistrict Tax Increments) and received by the Port Authority
under the Joint Powers Aqreement;
Tax Increment Act means the Minnesota Tax Increment
Financinq Act, Minnesota Statutes, Sections 469.174 through
469. 180, as amended;
Tax Increment Bonds means the Bonds;
23739
8
Tax Increment District means collectively the Energy Park
Tax Increment Financing District and the Twin City Testing Tax
Increment Financinq District;
Termination Date means the date of expiration of the
Assessment Agreement as provided in Section 6.4 of this
Agreement; '
Twin City Testina District means the Twin City Testing
Project area included in the Development District by the City
Council pursuant to Resolution C.F. No. 88-2008 and described in
Exhibit I attached hereto; and
�win City Testinq Tax Increment District means the Twin City
Testing Project Tax Increment District created by the City
Council pursuant to Resolution C.F. No. 88-2008 and described in
Exhibit J attached hereto.
23739
9
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties o� the City and
Port Authority. 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 corporation existing and
organized under the laws of the State; and the City and Port
Authority each has been duly authorized to enter into the Joint
Powers Agreement and this Aqreement, 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 Mirinesota Statutes, Section
469. 174, Subdivision 10(2) and were each created, adopted and
approved in accordance with the terms of the Tax 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, sub�ect to the
further provisions of this Agreement, to use its best efforts to
issue the Bonds and to use the proceeds thereof to reimburse the
Developer for the payment of a portion of the cost of acquiring
and improving the Development Property; and (b) the City and Port
Authority propose, subject to the further provisions of this
Agreement, to provide Subdistrict Tax Increments and/or the
proceeds of Subdistrict Bonds in support of the Developer
Indemnification;
(5) The City and, except as otherwise provided 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 conditions thereon, or that
the Development Property shall be suitable for the Developer's
purposes or needs. �
(6) The City has made the findinqs 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,
23739
10
except for the preparation and filinq of the Development Action
Response Plan and the certification contemplated under Section
469. 174, subdivision 7, paraqraph (b) , of the 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 exercise their best
efforts, at the expense of the Port Authority and with the
cooperation of the Developer, to secure the approval of the
Minnesota Pollution Control Agency to any Development Action
Response Plan; and the City has duly authorized its Director of
the Department of Finance and Manaqement Services and its
Director of the Department of Planning and Economic Development
to certify the Hazardous Substance Subdistrict to the Ramsey
County Director of Property Taxation as provided in and upon
satisfying the conditions set forth in Section 3.4 hereof.
Section 2.2. Re�resentations and Warranties of the
Develooer. The Developer makes the following representations and
warranties:
(1) The Developer is a Minnesota limited partnership duly
formed and existinq under laws of the State.
(2) The Developer has been duly authorized to enter into
this Agreement and to perform its obligations hereunder.
(3) Any Improvements undertaken by the Developer shall be
constructed in accordance with the terms of this Aqreement, the
Development Plan and all local, state and federal laws and
regulations (including, but not limited to, environmental,
zoning, energy conservation, buildinq code and public health laws
and regulations) , except for any variances necessary to construct
the Improvements contemplated in any Construction 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 requlations which must be
obtained or met before the such Improvements may be lawfully
constructed.
(5) Neither the execution and delivery of this Aqreement,
the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of
this Agreement is prevented, limited by or conflicts with or
results in a breach of the terms, conditions or provision of the
Developer's limited partnership aqreement or any contractual
23739
11
restriction, evidence of indebtedness, aqreement or instrument of
whatever nature to which the Developer is now a party or by which
it is bound, or constitutes a default under any of the foregoing.
(6) The Minimum Improvements to the Development Property
will be constructed at a cost of not less than $25,000,000 and a
square footage addition of not less than 240,000 square feet of
floor area.
(7) The fair market value of the Development Property, not
including the value of the Minimum Improvements or any Additional
Improvements, is not less than $4,300,000, and the Developer will
spend enough in construction of the Minimum Improvements, when
combined with the value of the Development Property and related
site improvements, to generate the Assessor's Minimum Market
Value set forth in Section 6.4 of this Aqreement. The Developer
estimates that the Assessor's Minimum Market Value set forth in
Section 6.4 of this Agreement is a reasonable estimate of the
annual market value for ad valorem tax purposes.
(8) The Developer will cooperate fully with the City and
Port Authority with respect to any litiqation commenced with
respect to the Project.
(9) The Developer will secure financinq commitments and/or
available equity sufficient, when added to the financinq provided
pursuant to this Agreement, to finance the acquisition and
renovation of the Development Property and enable the Developer
to successfully complete the Minimum Improvements as contemplated
in this Agreement. The Developer ::i'�e���� ��:
.... ,,...::., . . ..,,� .
�t�����i�:�?�Ri� $2,400,000 in cash to the acquisition o e
w:.:;,�;:<.:;.:::.:;:�:<
�beve�:opmen� Property, which amount is an equity contribution by
Developer to the Project.
(10) The Developer will cooperate fully with the City and
Port Authority in resolution of any traffic, parkinq, trash
removal or public safety problems which may arise in connection
with the construction and operation of the Project.
(11) The Developer would not undertake the Project without
the financinq provided by the City and Port Authority pursuant to
this Agreement and the Joint Powers Agreement.
(12) The Developer expects that, barrinq unavoidable
delays, the Project will be substantially completed by
December 31, 1992.
(13) The Developer shall comply with the Enerqy Park
covenants, and all applicable governmental laws, requlations,
23739
12
requirements and rules and prohibitions of public or private
nuisances with respect to the use, maintenance and operation of
the Project, subject however to the riqht 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 proceedinq in which the
leqality of such use or operation is in dispute and is defended
by the Developer in qood faith.
23739
13
ARTICLE III
PURCHASE OF DEVELOPMENT PROPERTY AND PROJECT ASSISTANCE
Section 3.1. �rchase of Development ProBerty by Developer.
The Developer has, simultaneously with the execution of this
Agreement, acquired title to the Development Property.
Section 3.2. �roiect Assistan�e.
(1) The Port Authority will use its best efforts to
� issue the Bonds within 60 days from the date on which the
conditions precedent have set forth in subparaqraph (2) , below,
been satisfied, or as soon thereafter as possible, to provide
financial assistance for the Project by reimbursinq the Developer
for $3,385,000 of the Project Costs, and will deposit the
proceeds of the Bonds in such amount with t�e • �:�. First National
Bank of Chicago, in Escrow Account � ����`�
.�<. .. =::.
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�i��..:..:�. . � � ���' :��;�
:�i:.•.�..;z:e:,c";.;:se:::::,�3if,:�:�:::.t'y,•,;<'•.;;.;•.�:a:�y:::.�. r.:�;.. .:;�:,, bb:v:•N's:'.•'t
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��',.ic:iGi;i..,`�,►,.�'�'r,�.,ii�.z";,`w%S!'' '.<a:a�$A�'�'w:a.• .. "'�-�� ''R�i� `• ���.
(2) The Port Authority shall not be obliqated to issue
the Bonds until the followinq conditions precedent have been
satisfied:
(a) The Developer has acquired title to the
Development Property pursuant to the terms of the Purchase
Agreement and has provided the City and Port Authority with
evidence, in a form satisfactory to the City and Port Authority,
that the Developer has contributed $2,400,000 of its own funds
toward that acquisition and that such $2,400,000 contribution
will not be reimbursed to Developer from the proceeds of the
Bonds or the financinq referred to in subparaqraph (d) , below;
23T39
14
�ROM BRIGGS MOR6RN SP fWED)11.06. '91 14�38 N0.31 PGGE 4
�
(c) An Assessment Agreement in the �orm attaChed
hereto as Exhibit A has been exe�uted and de�ivered by the City,
the County and the Developer and the holder 4� the initial
Mortgage pursuant to Seation 6.4 of this Agreement;
(d) A gu�ranty from F�rst Bank in the form
attached hereto as Exhibit E has been executed and delivered to
the City to assure perfarmance of the Developer's obligations
under Section 7.3 of this Agreeme�t;
(e) Receip� by the City of an opinion of oounsel
to the Developer in the form attached here�o as Exhibit K and an
opinion of counsel to ��rst Bank in the form attached hereto as
Exhibit L;
(�) The Ueveloper ar First Bank has {a) paid or
reimbursed the City and Port Authority fvr ail out-of-pocket
expenses and legal fees incuxred by the City or Port Au�hority in
connection with the issuance �nd the Bonds and the preparati4n o�
this Agreement, the Jo�nt Powers Agreement, the Developer
Indemnification, and all related documents, including all legal
fees, which a�e paid to or incurred by the City Attorney's
office, and (b) p�id the City �h� service �ee required to be paid
under Section 4. 6 hereo�; and
(3) In the event that the Port Author�ty has no�
issued the Bonds within 60 days after the satisfaction of the
conditions preoedent set forth in subparagraph (2) , above, or has
advised the De�eloper, in writing, that it is unable to issue the
Bonds, the City will then use its best effo�ts �, caus� the HRA.
e ercise its best efforts to i�sue the Bonds to provide the
ass stance ca e or in su paragraph (1) , above.
Section 3.3. Use o� T�x Increments. The City and Port
Authori�y shall be free to use all Tax Incremen�s for any
purposes for which the Tax Increments �ay lawfully be used
pursuant to applicable pxovisions of the Minnesota law, and
neither the City nor th� Part Authority shall have any obligation
to the Developer vr F�rst Bank with r�spect td the use of Tax
Increments.
Section 3.4. Developer In��mnification. �he City and Pvrt
-Authority� agree:
(1} If ta} the City receives written notification fram any
of the Indemnitees that � demand made on the Port Authority under
the Developer Indemnification has not been honored aftex a period
of at least 30 days and {b) the Development Action Respanse Plan
has been filed with tb� city, the Direc�Qr of the Department of
z�a8
15
�
-��-}-�j� , �-Fea.t��.e���v ����eee�v�d a, , _,.�,_- "-'=--=-i=
8 ee�e���l�i��ge��€ ~����a�-�ee�eea`��e-�
e�e�ed-�r�e--��t-�ee�-t-�e-Ee�e-�e
(3) In the event that the Port Authority has not
issued t Bonds within 60 days after the satisfaction of the
conditi� a precedent set forth in subparaqraph (2) , above, or has
advised ze Developer, in writing, that it is unable to is�ue the
Bonds, the City will then use its best efforts to issue the Bonds
to provide the assistance called for in subparagraph (1) , above.
Section 3.3. Use of Tax Increments. The City and Port
Authority shall be free to use all Tax Increments for any
purposes for which the Tax Increments may lawfully be used
pursuant to applicable provisions of the Minnesota law, and
neither the City nor the Port Authority shall have any obliqation
to the Developer or First Bank with respect to the use of Tax
Increments.
Section 3.4. Developer Zndemnification. The City and Port
Authority agree:
(1) If (a) the City receives written notification from any
of the Indemnitees that a demand made on the Port Authority under
the Developer Indemnification has not been honored after a period
of at least 30 days and (b) the Development Action Response Plan
has been filed with the City, the Director of the Department of
Planning and Economic Development and the Director of the
Department of Finance and Management Services of the City shall,
on behalf of the City and at the written request of the
Indemnitee, promptly certify the Hazardous Substance Subdistrict
to the Ramsey County Director of Property Taxation pursuant to
Section 469. 174, subdivision 7, paraqraph (b) , and Section
469.174, subdivision 16, of the Tax Increment Act for the purpose
of paying for costs covered in the demand, but only to the extent
the costs are payable from Subdistrict Tax Increments under the
law and do not exceed $5,000,000 in the agqreqate (the "Excess
Costs�') . The certification shall be for such period of time as
is required to pay such Excess Costs, includinq debt service on
any Subdistrict Bonds. .
- (2) IIpon certification of the Hazardous Substance
Subdistrict, the Port Authority shall pay, and shall enter into
all contracts required to pay, all Excess Costs, but solely from
Subdistrict Tax Increments, and if the Subdistrict Tax Increments
are insufficient to pay when due the Excess Costs, 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
23T39
16
assure timely payment ot Excess Costs. In no event shall the
Port Authority or the City be liable pursuant to this Agreement
for the payment of Excess Costs except and to the extent that
there are sufficient Subdistrict Tax Increments, or proceeds from
Subdistrict Bonds, to pay Excess Costs. The City and Port
Authority hereby agree that the Subdistrict Tax Increments shall
be and hereby are irrevocably pledged and appropriated to the
payment of (a) 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 Aqreement.
(3) Any remaininq Subdistrict Tax Increments shall be used
or distributed in accordance with applicable law.
(4) In the event that the Port Authority is unable to
fulfill any or all of its responsibilities under this Section 3.4
by reason of the dissolution of the Port Authority, the
assumption of its operations by a trustee or some other entity,
or the Port Authority's inability to issue bonds secured by
Subdistrict Tax Increments, the City shall assume such
responsibilities, subject to the provisions of the Joint Powers
Agreement.
(5) The parties hereto agree that the obligations of the
Port Authority and the City under this Section 3.4 are
unconditional, notwithstanding the continuance of any Event of
Default, and shall survive termination of this Agreement.
23739
17
ARTICLE IV
CONSTRUCTION OF MINIMUM IMPROVEMENTS
Section 4.1. Construction of Minimwn ImBrovements. The
Developer agrees that it will cause the Minimum Improvements on
the Development Property to be constructed in conformance with
the approved Construction Plans. The Developer aqrees that the
scope and scale of the Minimum Improvements to be constructed
shall not be significantly less than the scope and scale of the
Minimum Improvements as detailed and outlined in the Construction
� Plans.
Section 4.2. Construction Plans.
(1) The Developer has complied with the design requirements
set forth in the Enerqy Park Covenants for the Minimum Improve-
ments, includinq submission of the site plan Construction Plans
to the Energy Park Desiqn Review Committee for review and
comment. The
M:^%M�};tiv,r::.,.x.},v,.y.}�,..rp•,y�.y!��:•::'v,"+i}� • t:•.:v:i•�' � .
�?��:����:.�i�;i,;����:X�....:.�o�"�the Minimum Improvements ��� , �:��
�e�x:>�:�� �:::�:.... ,� .,,,,,�,�. . � �
�����:��::������b�:�:���'�'��ave been approved. �i respect
�
t�o"`��'�`'���`e�e������xe�e�re�e�rt-�-a� any Additional
Improvements, the Developer shall cause the Construction Plans to
be provided to the City for approval by the City as provided in
subparagraph (2) , below, and shall submit the site plan
Construction Plans to the Energy Park Design Review Committee for
review and comment as required by the Energy Park Covenants.
(2) Any Construction Plans shall provide for the applicable
Improvements to be constructed in conformity with the
Redevelopment Plan, this Agreement, and all applicable state and
local laws and regulations. The City shall approve the
Construction Plans for Improvements in writinq if: (a) the
Construction 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 Plans
conform to all applicable federal, state and local laws,
ordinances, rules and regulations and permit requirements; (d)
the Construction Plans are adequate for purposes of this
1�greement to provide for the construction of Improvements; (e)
the Construction Plans conform to the preliminary plans on file
with the Desiqn Section, Downtown Development Division,
Department of Planning and Economic Development, City ot Saint
Paul, and (f) no Event of Default under the terms of this
Agreement has occurred.
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18
(3) Construction Plans for Improvements must be rejected in
writing by the City within 15 days of submission or shall be
deemed to have been approved by the City. If the City rejects
the Construction Plans for Improvements in whole or in part, the
Developer shall submit new or corrected Construction Plans within
3o days after receipt by the Developer of written notification of
the rejection, accompanied by a written statement of the City
specifying the respects in which such Construction Plans fail to
conform to the requirements of this Section 4.2. The provisions
of this Section 4.2 relatinq to approval, rejection and
resubmission of corrected Construction Plans shall continue to
apply until the Construction Plans for all Improvements have been
� approved by the City.
(4) Any approval of Construction Plans pursuant to this
Section 4.2 shall constitute 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 buildinq, zoninq or other
ordinances or regulations of the City and shall not be deemed to
be sufficient plans to serve as the basis for the issuance of a
building permit if the Construction Plans are not as detailed or
complete as the plans otherwise required tor the issuance of a
building permit. Approval of Construction Plans by the City
shall also not relieve the Developer of any obligation to comply
with the terms and provisions of this Aqreement, or the provision
of applicable federal, state and local laws, ordinances and
regulations, nor shall approval of the Construction Plans by the
City be deemed to constitute a waiver of any Event of Default.
(5) If the Developer desires to make any material change in
the Construction Plans for the Minimum Improvements ��°�_
, the Developer shall submit the proposed
change to the City for its approval and to the Energy Park Design
Review Committee for review and comment. If the Construction
Plans for the Minimum Improvements, as modified by the proposed
change, conform to the approval criteria listed in this Section
4.2 and do not constitute a material modification to the scope,
size or use of the Project or to the site plan therefor, the City
shall approve the proposed chanqe. Such chanqe in the
Construction Plans for the Minimum Improvements shall be deemed
approved by the City unless rejected in writinq within ten days
by the City with a statement of the City's reasons for such
rejection.
23T39
19
Section 4.3. Comgletion of Construction.
(1) The Developer will proceed with due diligence to
complete the Minimum Improvements and, subject to unavoidable
delays, the Developer reasonably expects to have completed the
Minimwn Improvements by December 31, 1992.
(2) The Developer aqrees that it shall cause designated
representatives of the City and the Port Authority to be allowed
to enter upon the Development Property durinq the construction of
the Minimum Improvements to inspect such construction.
Section 4.4. Certificate of Occupa�.
(1) Promptly after completion of the Minimum Improvements
and any Additional � Improvements in accordance with the provisions
of this Aqreement, the City will furnish the Dev$�oper with a
Certificate of Occupancy, in accordance with the provisions of
the Saint Paul Legislative Code. Such Certificate of Occupancy
shall be a conclusive determination of satisfaction and
termination of the aqreements and covenants in this Aqreement
� with respect to the obligations 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 to 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 Developer with a written
statement indicating in adequate detail in what 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 Aqreement, or is otherwise in default
under the terms of this Agreement, and what measures ;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. Signaae-
(1) Within seven days after :`:�:� �_' � "� °° �' � ' � °� �w��
S.�ct:c. �;a• ' •, ' �a#:.. Y••<
commencement of construction on the l�` nimum mprovemen s :����
%{!'!FX:�}'hW'4rv . bi'v.'�7PW Y � A 5
.. . .
:���r.::�. . �:.. � '. :���� ���;�.�:'.�. �� ;.::..� , the Developer aqrees to insta �1
a sign a e ro ect site s� ect to the followinq:
(a) ' for the
sign are included as Exhibit N a �ac e ere � � -� .
ti•i�•ni....... �P}}``> . k:JP:IXrv?:� � 8r: .}hN...�'.}w�v}:v,
;.��f��:��CfA�;�:C?�:,:<���' � ' :.;�.��
..hy.•.::.;;:?.;;o;.,•,•,v,i;;;;;;:,•:S:•::•:'..�:'.;�:�+:.:^;:•`:��Cuiti,'`.;+•::;?;;o:;ofKw.� �.:f :,2s5...:..>..
::;...>::�..,.:: . ��
. ., .;•. . . .
'��:�:5:j;4,F�.':�."�i�E?��7�.�.>�;•:•. ,�,,.�?.�:: �
., ,
.�. :.L
t>;<:ti••:.%:r;•,'•:r;v:�:::�:•>:.r::a�:;sxax..'+:i�Yas>`xi:�.>.'.�:aw.•::« ... .. .,-. .'..,..,. • .
23739
20
(b) The siqn must be carefully maintained and liqhted
at niqht if possible and positioned to be visible from the most
heavily traveled street adjacent to the Project.
(c) The City retains the right to specify the exact
location of the sign.
(2) The Developer may remove the siqn at any time after
substantial completion of the Minimum Improvements.
Section 4.6. Service Fee. On or before commencement of
construction of the Minimum Improvements, the Developer aqrees to
pay or cause to be paid to the City a servicing fee in the amount
of $10, 000.
Section 4.7. Additional Im�rovements. No Additional
Improvements with respect to the Option Property, shall be
undertaken until the Developer has satisfied, or caused to be
satisfied all of the provisions in the Option Agreement.
23T39
21
� ARTICLE V
INSURANCE AND CONDErIIdATION
Section 5.1. Insurance. The Developer will provide and
maintain or cause to be maintained at all times: (a) during the
process of constructing the Minimum Improvements, and (b) upon
completion of construction of the Minimum Improvements and prior
to the Termination Date, insurance aqainst loss and/or damaqe to
the Project under a policy or policies coverinq such risks as are
ordinarily insured against by similar businesses, under similar
circumstances. The Developer will deposit annually with the Port
Authority copies of policies evidencinq all such insurance, or a
certificate or certificates or binders of the respective insurers
stating that such insurance is in force and effect. Unless
otherwise provided in this Article V, each policy shall contain a
provision that the insurer shall not cancel or modify it without
giving written 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 any policy, the
Developer shall furnish the Port Authority evidence satisfactory
to the Port Authority that the policy has been renewed or
replaced by another policy conforming to the provisions of this
Article V, or that there is no necessity therefor under the terms
hereof. In lieu of separate policies, the Developer may maintain
a single policy, or blanket or umbrella policies, or a
combination thereof, in which event the Developer shall deposit
with the Port Authority a certificate or certificates of the
respective insurers as to the amount of coveraqe in force upon
the Project.
Section 5.2. Condemnation. In the event that title to and
possession of the Project or any other mate�ial part thereof
shall be taken in condemnation or by the exercise of ,the power of
eminent domain by any qovernmental body or other person (except
the City or the Port Authority) , so lonq as the Assessment
Ag=eement shall remain in effect, the Developer shall, with
reasonable promptness after such taking, notify the City and the
Port Authority as tc the nature and extent of such takinq.
Section 5.3. Restoration of Site. In the event that all or
any portion of the Project shall be damaqed or destroyed, the
Developer shall either rebuild the Project or, if it chooses not
to rebuild, shall clear the site of all debris.
23739
22
ARTICLE VI
ASSIGNMENT AND TRANSFER; INDEI�IIdIFICATION;
ASSESSMENT AGREEMENT AND RELATED COVENANTS
_ Section 6.1. Status of Develooer: Transfer of Substantiallv
�11 Assets. As security for the obligations of the Developer
under this Agreement but subject to the rights of the mortgaqee
under an� Mortqa e, the Developer re�resents and aqrees that
�>:s^^a,. � ; w+c.:,+..•:. ., �,�,�„r. ...,«, :. ao w��aMa a�xayyaw �
�:;�..: ,1:.:::�. ....����'��::: :�`�, : ,.�:.. .. . . . .. �. , .. it will
.�.v:�s�.•> :�� :� ;w�...., . .�,. ��x� :..' .. •zi
maintain i s exis ence as a imited pa ners ip and that the
. Developer will not dispose of all or substantiall all of its
assets or dissolve; provided that �•• � � the
Developer may sell or otherwise trans er o a pa nership or
corporation organized under the laws of one of the United States,
or an individual, all or substantially all of its assets as an
entirety and thereafter be discharqed from liability hereunder
(a) if the transferee partnership, corporation or individual
files with the City and Port Authority an aqreement in form and
substance satisfactory to the City and Port Authority under which
the transferee assumes in writinq all of the obliqations of the
Developer under this Aqreement; and (b) the City and Port
Authority receive ;; ; �z-=e� T L .,
� e�e�--c+r—{-�� such new security from the successor
Developer to assure completion of the Minimum Improvements as the
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 existinq
Developer will remain liable hereunder upon a default by the
successor Developer with respect to completion of the Minimum
Improvements.
Section 6.2. �ransfer of Prooerty and Assiq�er+� of
Aqreement. Subject to the provisions of Section 6.1 hereof, the
Developer may make or create or suffer to be made or created any
total or partial sale, assignment, conveyance, or lease, or
transfer in any other mode or form of or with respect to this
Agreement or the Development Property or any part thereof or any
interest therein, or any contract or aqreement to do any of the
same, without the approval of either the City or the Port
Authority. _ No assiqnment by the Developer of any of its
obligations under this Agreement shall relieve tha Developer from
any liability which has accrued hereunder prior to such
assignment, or from any other obliqations of the Developer under
this Aqreement unless the assiqnee has liled with the City and
Port Authority an aqreement in form and substance satisfactory to
the City and Port Authority under which the aasiqnee assumes all
such other obligations.
23739
23
Section 6.3. $elease and Indemnification Covenants.
(1) The Developer releases the City (except as to the
payment obligations under Section 3.4 hereof) , the Port Authority
\ W.,.O;;%«::L?•K?r:^. tS'% '+%+:^ �Ciii M�:..; �, �K: �C6k y.vhYB%^.;...}y{::n}}:.::::
(except as to �"�' `�'�?d�����:`�,�,''�����'��:����: �•...��:�:�"?��::�<:�;�:<:::?�'
..�:.�.,:... ?s«:ar�,r��....;�iha�:.:•c«:•:��^.��wac�.r•M::•:•:�s>:v•:.�#sr,,.,..»::a��•�!^cco;;:�h• • <s.¢:c, :�-03�,t�aasrk�<h c.�ss;.t�;.c.%•>;:
�c� matters for w�ich`'the �'�eveloper is indemnif'iec� unc�er the
Developer Indemnification) and their governing body members,
officers, agents, servants and employees thereof (hereinafter,
for purposes of this Section 6.3, the "indemnified parties")
from, covenants and agrees that the indemnified parties shall not
be liable for, and aqrees to indemnify and hold harmless the
indemnified parties against (a) any loss or damaqe to property;
� or any injury to or death of any person occurrinq at or about or
resultinq from any defect in the Project or (b) any loss that the
City incurs as a result of the Developer's non-performance under
this Agreement.
(2) Except for any willful misrepresentation or any
willful or wanton misconduct or any unlawful act 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 any claim, demand,
suit, action or other proceedinq whatsoever by any perBOn or
entity whatsoever arisinq or purportedly arisinq (i) from any
violation of any agreement or condition of this Agreement (except
with respect to any suit, action, demand or other proceeding
brought by the Developer aqainst the Authority or the City to
enforce its rights under this Aqreement) or (ii) the acquisition,
construction, installation, ownership, and ope=ation of the
Project; provided that this indemnification shall not apply to
the Port Authority as to matters for which the Developer is
indemnified under the Developer Indemnification nor relieve the
Pr��A3���:�i��.'�.'����>;:z��"��'�:� City of �s payment obligations under
•....;:.t:�c>:;•'t;i;:::Y<�<;;,:c•,<:M:+';x::••"....;x>.:,s,l,,,aAst•.•• ,a„w? .
S�ection 3'.4 hereof��"
(3) Except as may otherwise be provided in the
Developer Indemnification, the indemnified parties shall not be
liable for any damage or injury to the persons or property of the
Developer or its officers, agents, servants or employees or any
other person who may be about the Project due to any act of
negliqence of any person, other than any act of neqligence on the
part of any such �indemnified party or its officers, aqents,
servants or employees.
(4) Al1 covenants, stipulations, promises, aqreements,
and obliqations of the Port Authority or City contained herein
shall be deemed to be the covenants, stipulations, promises,
agreements and obligations of the Port Authority or City,
respectively, and not of any governing body member, officer,
23T39
24 .
� ,""ROM BRI6G5 MORGAN SP CWED)11.06. '91 14s39 N0.31 PAGE 5
agent, servant or emplayee of the Port Authority or City in the
individual capacity ther�of.
Seotion 6.4 . Execu�'on of Assessment Agreemen�. The
Developer and the city hav�, simultaneously with the execution nf
this Agreement, executed an Assessment Agreement in the form
attached hereto as Exhibit A, pursuant to the provisions of
Minnesot� statutes, Section 469.1?7, Subdivision 8, specifying
the Assessor's Minimum Market Value for each phase of the Minimum
Improvements for calculation of real property taxes.
SpecificaZly, the Developer has agreed to the Schedule of Minimum
Market Valu� attached hereto as Exhib�t O (herein r�ferred to
coll�ctively as the "Assessor's Minimum Market Value") . Nothing
in the Assessment Agreement shall limit the discretion of the
assessor to assiqn a �arket valu� to the pzoperty in ex��ss of
such Assessor's Minimum Market Va�ue, nor prohibit the Developer
from seeking through the exercis� of iegal or administrative
remedies � reduction in such market value for property tax
purpos�s, provided however, that the Ueveloper shali not seek a
reductiQn of such market va�ue below �h� Assessor's Minimum
Market Value in any y�ar so long as the Ass�ssment Agreem�nt
sha�l remain in effect. The Assessm�nti Agreement shall remain in
effect until June 1, 24Q�„Sthe ��Termination Date��) . The
Assessment Agreement sha3�1 be ce�tified by the Ramsey County
A�sessor �s provided in Minnesota statutes, Sectian 469. 177,
Subdivision 8, upan 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 b�
constructed on the Development Proper�y and the market value
previously assiqned to the Development Property. Pursuant to
Minnesota Statutes, Section 469. 177, Subdivision 8, the
Assessment Agreemen� shall be �iled for record in the dffice of
the county recarder ar registrar of titles of Ramsey County, and
such filing sh�ll aonstitute notice ta any subsequent
encumbrancer or purchaser of the Development Property, whether
volunt2�ry or involuntary, and such Assessment Agreement shall be
}ainding and enfo�ceable in its ent�xety against any such
subsequent purchaser or encumbrancer, including the holder of any
mortgage gr�nted to seeure financing of the Project.
Section 6.5. Execut'a of Assessment Aareement to
Ad�ition�l 2mnrovemen�. If additional tax increment assistance
"is requested in oonnection with any Additional xmprovements, the
Developer agrees to execute, at the request af the City, from
time to time one or more additional Assr�ssment Agreements which
, satisfy the requirements of Section �.4 �fter taking into account
the reasoMable market va�ue af the Development Property,
including the Additional improvements made or to be made.
z4aas
24
Section 6.6. Real Pro�erty Taxes.
(1) The Developer acknowledqes that it is obliqated under
law and aqrees to be personally liable to pay all real property
taxes payable with respect to all parts of the Development
Property acquired and owned by it consistent with the provisions
of the Assessment Agreement and any other statutory or
contractual duty that shall accrue subsequent to the date of its
acquisition of title to the Development Property (or part
thereof) and until title to the Development Property is vested in
another entity.
(2) The Developer aqrees that prior to the Termination
Date, to the extent any of the followinq actions would reduce the
market value of the Development Property below the Assessor's
Minimum Market Value, except in the case of acquisition 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 statute relatinq to the
taxation of real property contained in the Development Property
determined by any tax official to be applicable to the Project or
the Developer or raise the inapplicability of any such tax
statute as a defense in any proceedinqs, includinq delinquent tax
proceedings; provided, however, "tax statute" does not include
any lccal ordinance nor resolution levying a tax;
(b) It will not seek administrative review or judicial
review of the constitutionality of any tax statute relating to
the taxation of real property contained on the 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 proceedinqs, includinq
delinquent tax proceedings; provided, however, "tax statute" does
not include any local ordinance or resolution levyinq a tax;
(c) It will not seek any tax deferral 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 the Development
Property between the date of execution of this Aqreement and the
Termination Date. �
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26
ARTICLE VZI
BONDS
Section 7.1. Issuance of Bonds. The Port Authority has
agreed to use its best efforts to issue the Bonds in an amount
sufficient to provide the Developer with _ __ __ _______.___
:.::...:.�..:,..:.vN,,;..;:.::.;:«.;::::�,�::.:.:�u..>:.>:..
... ..: . . . . . � suL t,—x�.
Zd
't 1 d �ttr� tn
T
/ �/
�
� ::. •n•: . . . :::: : h
.., .;:
wrHAt-0K^�::1.......}h "4.......•.
::: .'_ ''�°
can.
'��":;:�R�FI'�:«.�'»:.:�::..:..�::��:: " :,���.-�. ...;:�.....�....�.........a;:.,� .�. `':�.... � . The
�obY��igation���`�o� °t�ie�"}'���o���rt�`�Auf�oi�y�o��s�"uise�proceeds of the
Bonds shall be subject to the limitations provided in Section 7.2
of this Agreement.
Section 7.2. Limitations on Financial Undertakinq,s of the
Port Authority. Notwithstandin th��ovisions of Section 7. 1, .
...... .. . �� �
��`:�:.,$��e� the Port Authority �:;:,...��< ���•� �� shall have �e �.#:��
obliga��ion to the Developer under ��is Aqreement to dis 'urse the
proceeds of the Bonds if and for so lonq as any of the following
conditions exist:
' }eY A:x.U:
(1) The ����,;��Port Authority is entitled under Section
10.02 of this i�q=eement to exercise any of the remedies set forth
therein as a result of an Event of Default;
(2) There has been, or there occurs, a substantial change
for the worse in the financial resources 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 unable to fulfill its covenants and obligations
under this Agreement to complete the Minimum Improvements; or
(3) One or more of the conditions to disbursement of Bond
proceeds set forth in Section 3.2 have not been satisfied.
Section 7.3. Guaranty of Tax �e�e�e� Shortfall 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 after 1993 and prior to
the maturity date of the Bonds will exceed the minimum amount
needed to pay when due all principal and interest maturinq in
that year on the Bonds. The Developer a rees that it for any
reason, real estate taxes �e�:ze�€re� . � the •
Development Pro ert
• . <�v,�. . �
�$S3�A�-48:�.�: �:.• :,. . �.
• .,.:.�.�:•�..:•...:..,:..;.:::..::.:•;��?�:;s���;.�:;::':<:" ��s::
,.,,,,M,. . . ... �x :� „ ;
..:...:... ,...� �• ...
a�:';,:�:��..����:y%��:�::.. #�:...:' '�'il.��.. • ,.:: ;
... �'2:'J.dt. tii�:::.%:::.i•::?i::f:�Xh��.\�� .a..+•'n;y•: �; • .,}M1 '
�then �he Devel`oper s�all pa ��, �
. :>. . � .:.�. .
.
..., ..��.., 't�� . �..�:::.: � . . <�-T:�. :.: . : :.. ::... . ..
.>.:r:.......:.��� :•�;,.;:.:::�:.�:�.�.••.�,:v�' •.�s�:.�••:>:••--:�.�,,:r.:::x... .: �.
:... .: .� :
�,,�:�;�<�;;��::���"�t, o `��ie �ort ut ori y e i erence etween
..�.,z�;�::.�:�::N,.a:: �:�,�
23739
27
real estate taxes actuall �`��+�
;.. v. . . � :
��.�:�.; �.�:..� .. . �� �.��� . . ��. �'�".: . : .., :. .. ������
. � ��t ..
. . :.;.
. .. . ,iN ,., . . . . . �. ..:
::.�.. ��::�;<�:.��:::�;,�: ��.:.�:�.�:��.�:.::,�..�:�:�:�. ��;��.N<::,;::•
(2) I!, at any time after 120 days followinq completion of
the Minimum Improvements but prior to the Termination Date, less
than 680 employees are located at the Development Property for a
period of more than 180 days in any 12 month period, then the
Developer shall promptly make payments to the Port Authority of
the principal and interest due on the Bonds durinq the period of
� such shortfall (including the 180 day period referred to in this
sentence:�}, as set forth in the Amortization Schedule. The
foregoing obligation shall not apply to the extent that the
shortfall or the number of employees is the result of
technological innovations or general cut backs in First Bank's
operations system-wide.
(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 guaranteeinq
perfonaance of the Developer's obligation to pay any shortfall in
real estate taxes as provided in subdivision (1) and Developer's
obligation to make payments due on the Bonds under subdivision
(2) of this Section 7.3.
23739
28
ARTICLE VIII
EMPLOYMENT, CONTRACTING AND WAGE REQUIREMENTS
Section 8.1. Affirmative Action. Developer hereby aqrees
to (a) avoid and to require its contractors and subcontractors to
avoid all discriminatory practices prohibited by section 183 .03-
183.032 of the Saint Paul Legislative Code, and (b) to comply
with the affirmative requirements in employment provided by
section 183.04 of the Saint Paul Leqislative Code. The qoals for
affirmative action shall be to have in the total project work
� force 15$ Minority laborers, 6$ Minority skilled craft, and 4�
Female laborers/skilled craft combined, which goals Developer
agrees to make a qood faith effort to achieve; but with a minimum
of 10$ Minority and Female laborers combined and a minimum of 4�
Minority and Female skilled craft combined. The procedures to be
followed in order to establish a qood faith effort to meet said
goals are outlined in Exhibit P, "Affirmative Action/Equal
Employment Opportunity Requirements", attached to this Agreement
and fully incorporated herein. In the event of any inconsistency
between this Section 8.1 and Exhibit P, this Section 8.1 shall
control.
Section 8.2. Minimum Waqes. In accordance with City
Council Resolution No. 278233 and HRA Resolution No. 82-2/25-4,
the Developer agrees to include the prevailing wage rate
provisions of Section 82.07 of the Saint Paul Administrative
Code, which, together with applicable waqe rates and other
documents to be included in any bid specification for the
Project, is attached hereto as Exhibit Q.
Section 8.3 . �arqeted Vendor Development Program. In
accordance with the provisions of Chapter 81, Saint Paul
Legislative Code, the Developer hereby aqrees to require its
contractors and all subcontractors to comply with the Targeted
Vendor Development Program goals and requirements as set forth in
Exhibit R, "Tarqeted �ess � � .� ' °° �'°°° Program", which
is attached hereto and fully incorpora e � erein.
Section 8.4. �usina and Community Development Act. The
Developer agrees to comply with the requirements of Section 109
of the Housinq and Community Development Act of 1974, as amended,
of Sections 504 and 794 of the Aqe Discrimination Act of 1975, as
_ amended, and the rules and regulations of the Secretary of
Housinq and Urban Development relevant thereto (24 CFR Parts 8,
146 and 570) .
Section 8.5. Preconstruction Conference. �It is a condition
of the Aqreement that the Developer must require its contractor
on ar►y Project improvement financed with Tax Increments under
Sections 3.2 and 3.3 and all then kriown subcontractors to attend,
23T39
29 .
and the Developer must also attend, a preconstruction conference
conducted .by the City staff. These conferences are held for the
benefit and information of all participating contractors and
attendance is a required condition. Each area o� 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 report requirements
up to date.
section 8.6. �ederal Anti-Discrimination and Af�irmative
Action Requirements. Developer and its subcontractors 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 shall be
discriminated against on the basis of race, color, religion, sex,
or national origin in all phases of employment durinq the
perfonaance of this federally assisted construction 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 requlations, contractors and
subcontractors on Federal or federally assisted construction ,
contracts shall take affirmative action to ensure fair treatment
in employment, upgrading, demotion, or transfer, recruitment or
recruitment advertisinq, layoff or termination, rates of pay, or
other forms of compensation and selection for traininq and
apprenticeship.
Section 8.7. Federal Section 3 Reauirements. In accordance
with the provisions of Section 3 of the Housing and Urban
Development Act of 1968, 12 U.S.C. , Sec.1701u (Section 3) , the
Developer in the performance of this contract, to the qreatest
extent feasible, shall:
(1) provide opportunities for traininq and employment
to lower income persons residing in the City of Saint Paul, and
(2) enter contracts for work to be contracted with
business concerns, includinq but not limited to individuals or
firms doing business in the field of planning, consultinq,
design, architecture, building construction, rehabilitation,
maintenance, or repair, which are located in or owned in
substantial part by persons residing in the Seven County
Metropolitan Area.
23T39
30
Section 8.8. Assistance to Developg�. The City shall
assist the Developer and its contractors with clarifications and
interpretations of federal, state and local requirements as
specified in this Aqreement. Developer or its contractor shall
notify the City if and when such assistance is required and City
staff shall provide technical and professional assistance in such
form as necessary to insure all federal, state and local
regulations and requirements are being addressed. The compliance
with the rules and regulations set forth in this Aqreement shall
remain the responsibility of the Developer.
23739
31
ARTICLE IX
MORTGAGE FINANCING
[Intentionally omitted]
23739
32
ARTICLE X
EVENTS OF DEFAULT
Section 10. 1. Events of Default Defined. The following
shall be "Events of Default" under this Agreement and the term
"Event of Default" shall mean whenever it is used in this
Agreement any one or more of the followinq events:
(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 limitations of Article IV.
(2) Failure by the Developer to substantially observe
or perform any other covenant, condition, obliqation or aqreement
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 Developer does not provide
assurances to the City and Port Authority reasonably satisfactory
to them that the default will be cured as soon as reasonably
possible.
(3) The Developer shall
(a) file any petition in bankruptcy or for any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under the
United States Bankruptcy Act of 1978, as amended or
under any similar federal or state law; or
(b) make an assignment for the benefit of its
creditors; or
, (c) admit in writinq its inability 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 reorganization under
any present or future federal bankruptcy 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 atter the filing
thereof; or a receiver, trust�e or liquidator of the
Developer, or of the Project, or part thereof, shall be
appointed in any proceedinq brouqht against the
Developer, and shall not be discharged within 90 days
after such appointment, or if the Developer, shall
cause to or acquiesce in such appointment.
23739
33 .
(4) The holder of any Mortqaqe on the Development
Property or any improvements thereon, or any portion thereof,
commences foreclosure proceedings as a result of any default
under the applicable mortgaqe documents.
(5) Any representation made by the Developer in this
Agreement should be untrue or misleading in any material respect.
(6) Failure by the Developer to timely pay when due
all �d valorem real property taxes assessed with respect to the
Development Property, or to pay any shortfall in �-� T--�--_-}�
� C r�x;x.xo:•.. •r:osoy••>x:a:o->•:.•»,;.aq� xaar�cµ;�n: ro. x... z��»:�r»v�r»as:!•.:•,;rM1.•m the
�ei—i'�—rs-e�! ;���?:�^::��.�.;'��'�. <;<';;��+?;:�: � •�t��..�.`..'.':;� ~';":�;i::��,..��.�.'..�`.:..;�,,.+�.'�.�:
....ry1:.v.:?!2ry'�Yck.�.':?.:::,:>.r..:.:.,.:..:r.'�s..'z.�.vo'.kc..:,:..<...k'1C•>Yo�4.<c.. c>�:.b:•a;`,.n••�':�':Cs*•..;.�x��lAO������.4
� Development Property as require�'by �ection �.
Agreement.
(7) Transfer of any interest in the Developer, the
Development Property or this Agreement in violation of the
provisions of Article VI.
Section 10.2. Remedies on Default. Whenever any Event of
Default referred to in Section 10.1 occurs and is continuing the
City or Port Authority, as specified below, may take any one or
more of the followinq actions:
(a) The City and Port Authority may suspend their
respective performance under this A reement>� �.���
���'�:��ls.�ri��<��:�i���:�G�'���,��. "��� until���t '�e � "receive
::::::.�::::::::::.:.........::.........::::::::..... .� .. . ... :,,�;�i���:>� y
assurances��A'f�rom�"the"�Seve�oper'�or' fio�er of the Mortgaqe, deemed
adequate by the City and the Port Authority, that the Developer.�f:;
`"�"'.•.:.:"":` '�"'��`"""'��'� or o.ther acce table art will cure the
��:e:����c��±��.�:�AQ:�;;�:` Q;�<::h�`$��� P P Y
..,.:>..::.w::•ti�.:.:.>.�::::,�:•:sn,aw�,• x.•,::•. �<, "
�Deve�oper's �d�e�au�t`s anii continue its performance under this
Agreement.
(b) The City and the Port Authority may take any
action in law or equity, including leqal or administrative
action, which may appear necessary or desirable to collect any
payments due under this Agreement or the Guaranty, or to enforce
performance and observance of any obl�gation, aqreement, or
covenant of the Developer under this Aqreement 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 available remedy or
remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this
Agreement or now or hereafter existinq at law or in equity or by
statute. No delay or omission to exercise any right or power
accruing upon any default shall impair any such riqht or power or
shall be construed to be a waiver thereof, but any such riqht and
power may be exercised from time to time and as often as may be
deemed expedient.
23739
34 •
Section 10.4. No Implied Waiver. In the event any
agreement contained in this Aqreement should be breached by any
party and thereafter waived by any other party, such waiver shall
be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent, previous or subsequent
breach hereunder.
Section 10.5. �,greement to Pay Attorney's Fees and
Expenses. Whenever any Event of Default occurs and 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 contained, the
Developer aqrees that it shall, on demand therefor, pay to the
City or Port Authority the reasonable fees of such attorneys and
such other expenses so incurred by the City or the Port
Authority.
�
23739
35
ARTICLE XI
ADDITIONAL PROVZSIONS
Section 11.1. �onflicts of Interest. No member of the
governing body or other official of the Port Authority or City
shall have any financial interest, direct or indirect, in this
Agreement, the Development Property or the Minimum Improvements,
or any contract, agreement or other transaction contemplated to
occur or be undertaken thereunder or with respect thereto, nor
shall any such member of the qoverninq body or other official
participate in any decision relatinq to the Agreement which
affects his or her personal interests or the interests of any
corporation, partnership or association in which he or she is
directly or indirectly interested. No member, official 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 obligations under the terms
of this Agreement.
Section 11.2. Titles of Articles and Sections. Any titles
of the several parts, articles and sections of the Agreement are
inserted for convenience of reference only and shall be
disregarded in construing or interpretinq any of its provisions.
Section 11.3. Notices and Demands. Except as otherwise
expressly provided in this Aqreement, a notice, demand or other
communication under this Aqreement by any party to any other
shall be sufficiently qiven or delivered if it is dispatched or
reqistered by registered or certified mail, postaqe prepaid,
return receipt requested, or delivered personally, and
(a) in the case of the Developer is addressed to or
delivered personally to:
Ryan St. Paul Limited Partnership
c/o Ryan Properties, Inc.
700 International Centre
900 Second Avenue South �
Minneapolis, Minnesota 55402 .
. Attention: President
with copies to:
Sun Life Insurance Company
of America
1800 West Loop South
Suite 1110
Houston, Texas 77027
23739
36
0'Melveny & Myers
400 South Hope Street
Los Angeles, California 90071-2899
>•v�;,�:.w:::�.»•..kxi>• �. ,�,, :�,
���• ,.� .��.�<>z�. �����'��=�'
:a::::�>:a:•.y:�y.s:::s.;:�.as�,s
(b) in the case of the City is addressed to or
delivered personally to the City at:
Director
Department of Planninq & Economic
Development
1300 City Hall Annex
25 W. Fourth Street
Saint Paul, Minnesota 55102
(c) in the case of the Port Authority, is addressed or
delivered personally to the Port Authority at:
Port Authority of the City 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 such party as that
party may, from time to time, desiqnated in writinq and forward
to the other, as provided in this Section.
' Section 11.4. Counteruarts. This Agreement may be executed
in any number of counterparts, each ot which shall constitute one
and the same instrument.
Section 11.5. Modification of Agreement. Neither the City
nor the Port Authority shall, without the written prior consent
of the Developer, First Bank and the mortqaqee under any
Mortgage, modify, or consent to the modification of Section 3.4
hef eof.
� Section 11.6. �w Governinc. This Aqreement will be
governed and construed in accordance with the laws of the State
of Minnesota. .
- Section 11.7. �egal Opinions. Upon execution of this
Agreement, each party shall, upon request of the other parties,
supply the other parties with an opinion of its leqal counsel to
the effect that this Aqreement is legally issued or executed by,
and valid and bindinq upon, such party, and enforceable in
accordance with its terms.
Section 11.8. S�'tv and Port Authority A��rovals. Any
approval, execution of documents, or other �action to be taken by
the City or the Port Authority pursuant to this Aqreement, for
23T39
37
the purpose of carryinq out the terms of this Aqreement or for
the purpose of determininq sufficient performance by Developer
under th�is Aqreement, may be made, executed or taken by the
Director of the Department of Planninq and Economic Development
for the City and by the President of the Port Authority for the
Port Authority without further approval by the City Council or
the Board of Commissioners.
Section 11.9. �,piration and Provisions Survivinq
Rescission or Expiration. Unless sooner terminated or rescinded
as provided herein, this Agreement shall expire on March 2 next
succeeding the latest date on which the Enerqy Park Tax Increment
� District or Hazardous Substance District should expire in
accordance with law. Sections 6.3 and �A,-4 ���� hereof shall
survive any rescission, termination or expira ion of this
Agreement with respect to or arisinq out of any event, occurrence
or circumstance existing prior to the date thereof; and in any
event Sections 3.3 and 3.4 hereof shall survive termination of
this Agreement.
Section 11.10. Exhibits. Exhibits A throuqh � � attached
hereto are incorporated herein by reference and made a part
thereof.
23739
38
IN WITNESS WHEREOF, the City, the Port Authority and the
Developer have .caused this Aqreement to be duly executed in their
respective names and on their behalf, on or as of the date first
above written.
CITY OF SAINT PAUL
BY
Its Mayor
By
Its Director, Department of
Planninq and Economic Development
Approved as to form:
By
Its Director, Department of
Assistant City Attorney Finance and Management Services
This is a signature paqe to the Development Aqreement �e�
_, by and between the City of Saint Paul, the
Port Authority of the City of Saint Paul and Ryan St. Paul
Limited Partnership.
23739
39
� ti - 5-g�
SECOND AMENDED AND
RESTATED JOINT POWERS AGREEMENT FOR THE
ADMINISTRATION, OPERATION AND FINANCING
OF THE ENERGY PARK AND TWIN CITY TESTING
AREA DEVELOPMENTS AND
TAX INCREMENT FINANCING DISTRICTS �e���
THIS AGREEMENT entered into this ]�,t� day of , 1991,
by and between the City of Saint Paul, a Minnesota municipal
corporation (the "City") and the Port Authority of the City of
Saint Paul, a body politic and corporate organized under the laws
of the State of Minnesota (the "Port Authority") .
WITNESSETH, WHEREAS:
� A. By Resolution C.F. No. 276898, the City Council, pursuant
to Minnesota Statutes, Chapter 472A (recodified as Sections 469.124
to 469.134j , established Energy Park Development District as
Development District No. 3 (the "Energy Park District") to provide
impetus for commercial development, to increase employment, to
protect pedestrians from vehicle traffic and inclement weather, to
provide the necessary linkage between peripheral parking facilities
and places of employment and shopping, to provide offstreet parking
to service 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 development
program for the Energy Park District;
B. By Resolutions 1499, 1535, 1609, 1697 and 1827 the Port
Authority, pursuant to Minnesota Statutes, Chapter 458, established
approximately the same geographic area as the Energy Park
Economic/Industrial Development District (the "Industrial
Development District") for purposes of establishing and developing
a system of economic/industrial developments;
C. 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 District.
D. 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) , and Chapter 472A (recodified as
Sections 469.124 to 469. 134) designated the Energy Park District as
a tax increment financing district and adopted a Development
Program and Tax Increment Financing Plan for the Energy Park
District for the purpose of financing the capital and
administration costs of the Energy Park District.
24229
E. By Resolution No. 3028, the Port Authority created the
Twin City Testing Industrial and Economic Development District and
by Resolution C.F. No. 88-2008 the City Council amended the Energy
Park District to incorporate the Twin City Testing project area
(the Enerqy Park District as so expanded being hereinafter called
the "District") , created within that project area the Twin City
Testing Project Tax Increment Financing District and, pursuant to
Minnesota Statutes, Section 469.131, designated the Port Authority
as administrator of the entire District.
F. By Resolution C.F. No. 277273, the City Council and by
Resolution No. 1876, the Port Authority, approved and executed a
Joint Powers Agreement For The Administration, Operation and
Financing Of The Energy Park Development And Tax Increment
Financing District dated August 18, 1981, which has previously been
amended by the Restated Joint Powers Agreement for the
Administration, Operation and Financing of the Energy Park and Twin
City Testing Area Developments and Tax Increment Financing
Districts which was dated August 30, 1989 and approved by
Resolution C.F. 89-1466 of the City Council and Resolution No. 3167
of the Port Authority (collectively the "Original Agreement") .
G. On October 14, 1982, the Port Authority acquired in the
Energy Park District property (the "Koppers' Site") from Koppers
Coke, Inc. ("Koppers") , and as an incident to that 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 contamination of the
Koppers' Site and other environmental hazards.
H. On December 14, 1984, the Port Authority sold certain
property (the "ETA Site") in the Energy Park District, including
part of the Koppers' Site, to ETA Systems Incorporated ("ETA") . As
an incident to this sale, the Port Authority indemnified ETA
against claims arising from environmental hazards 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 Authority, ETA and Control
Data Corporation ("CDC") entered into a purchase agreement in favor
of Ryan Construction Company, Inc. (��Ryan" or "FBS Developer")
under which the ETA Site is to be conveyed to Ryan. The conveyance
under the purchase agreement is conditioned, among other things, on
the Port Authority and the City entering into this �eA��-�e
����''�'��' '�'���'�R� '�'��:.� Joint Powers Agreement.
.::�.�.�~�::. �
Z�i:�iri:4:0i}}0$:�.{OiLJ��aA��iG0GOW4b�DSEd
J. By Resolution C.F. No. 91-351, the City Council, pursuant
to Minnesota Statutes, Sections 469.174 to 469.179, and Sections
469.124 to 469. 134: (i) approved establishment of a hazardous
substance subdistrict (the "Koppers' Subdistrict") that includes
the Koppers' Site in the Energy Park District; and (ii) authorized
the amendment of the Development . Program and Tax Increment
24229
2
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 under the conditions
hereinafter set forth. By Resolution C.F. No. -�--�T.�:�:.:���Y�::'``::`:�, the
City Council, pursuant to the same authority; (x) app��'r'���ove�d the
issuance of �3 ��:"'��_V��i��"'�'.�"���s in the approximate principal
amount of � ����"���:�:`''�#��'�:i�'�{?Q`°��o'��provide funds to reimburse the
� v::•...>:•;, .�•;:..::>;:,:;;�
FBS Developer for cerfain development costs
��e�re-3te�e;8 e�e� � , � �-9�9�r�--ea��k�-�— ,,.,..-�-.,..�:,.t-T�,
^rr—---------
�� �r�s-e�--et�re�l�e� �e-€�e�m;. Tw _....�,. :<:;> {:.:..v..
��'��.v �r �a� ;��:�::c�
�::r{m�:,>k.,. fi:..oxafc�:�:c<...,nx..::�;.•� r:::n:�rrx••,!+,x�s�a:;>xaro;•:;rr,.xr^:•x4k::;:;,e:n,.�»•,r..>;:<.:::.::;•:�::»:c:.>�••::..:>::.;:•:�•:::;:tb�}:h;»r:: :x:' ..:aa:er;aa»c�mwa+!c.;:.;:;,:;y;:.;+..
��:f,:�:::...�:�e���:>:�.����:<;<�w�>�:�::::.��w�� y� rc���m��.e...N?�. ..�.°'°�a;..������� � :�i��:�� ��
3:.:�.:;. .�.�;:.... .:.: . ..r'a�.:.;:;,......::::::::....«s.....:.;:< .;ri.n....,,;::.;;:::.::.�p;;:;:.::.;::::.:;;;:;�:;::::.;;:.;.::,;>�..:
��. Y•. ,>�y:'.'•�:..�;:•;K;::}�:>:%k+.•::•A�,,•:`�C?.; �ki,{,;. .,.+c++�t .;?,.• ::.�.;. ...t,.....tot;{.:wc;•:}•'n•^` .?y�;f;:. �:''%:;:E;►;;;.,:;:;" �%i::::.r>S•�:<:
.�'�. :.�::°.•'•'z :k;.;;':s�'.: .:�:�;�:�:3�,.�:.'�.. ::��``:`:`'�<»�?€3� ::Au. ' �;g;:::.
� � ...... .... .�' :Y.� ... ... .r.. �.���x:�:.�s..�..�:...:�.:..x`�
,.�5�:�:>�3�:.�.;�:4.,�:�:���:�. . ,,�.. .:��::� �:..........._ .:t. t�iiQ�. '�.: ':�'.:'
a�..ro Y::, :�,•,n;.. x�.,,...::. .t,7:,�'.. ...,� . .�`� `� .
::.;�6$:::.r..'ui.$:::i:.. 4�•:•:. :.r:ce3.ct.s.:!.!£...:rt.5> .,,:a.•:::;:•�::w.:.:;n.'.arE'/.•:f.,•.N..��..CG.'tt<;:;;�;:�;r�;::<;:o->:��.�::::>:i>:a:::<:.S:;au..xy+ .st� :::2'''ded&cda.'`"+.�.'cYG:::.:d:a::<:.+:?...�...f.i:.:•:.:::<a..::.:a
��.���t'�.�;r��,:,..�, an� further approved the use of fiax Increments �rom
r:;f,.;.;.:��:::..:,>.�.K,zW:..:,;.,;�;;;::,:.;�.:�
the �nergy �a'rk District to secure those bonds; and (y) authorized
the execution of this Second Restated Joint Powers Agreement for
Administration, Operation and Financinq of the Energy Park and Twin
City Testing Area Developments and Tax Increment Financing
Districts (the "Joint Powers Agreement") and a Development
Agreement with the Port Authority and the FBS Developer (the "FBS
Development Agreement") to set forth the conditions on which the
preceding would be accomplished.
K. By Resolution No. 33�6 � , the Port Authority has
approved the issuance of the bonds referred to clause (x) of the
preceding Paragraph K, and authorized the execution of this Joint
Powers Agreement.
NOW, THEREFORE, the City and Port Authority, each in
� consideration of the mutual covenants and agreements herein
contained, covenant and agree that the Original Agreement is hereby
amended and restated to read as follows:
Section l. Authoritv. This Agreement is entered into under
the authority of Minnesota Statutes, Sections 469.012, subdivision
(11) and 471.59, and such other applicable statutory and Charter
provisions as are consistent herewith.
Section 2. Definitions. In addition to the terms as '
hereinabove or hereinafter defined in this Agreement, unless a
different meaning clearly appears from the context, the following
terms shall have the following respective meanings:
Additional Obligations: The additional obligations arising
from the A�iW Agreement and District Amendment referred to in
Section 7 (b) . '
Agreement: This Agreement as the same may from time to time
be amended or supplemented.
24229
3
�uthority Advance: The $126,992 of Port Authority revenues
(other than Tax Increments and District Revenues) advanced by
the Port Authority to finance the Energy Park District, as
provided in the Plan.
Bond or Bonds: Revenue bonds, notes, interim certificates and
other obligations of the Port Authority #�;r',�" •��.; •��. .�.issued for the
.�. . xi:�t,. w.�:�::..�..:. � �.
purposes of financing qr�'��;���;����i��the Y�istrict's capital
and administration costs provic�ed� �'�or in the Plan.
,.y�. ..,_��,..�.«. :�r:s•;r:�+�cc... s, •�x;r ,xs•.. �:�•:�:�•.�
{K
:• ;: ::• y�
.�..R.,. .4��",.,�.�.',�'�,'.o:.'����.'�.�'�'.�'...�'�.�..��'`��:���::�•:::: .:;:�<; ' ; ����':�:�;��
: , . •:..:• . :. ... y�
•:.-......i}riM1�:h}:•::?•i:•���.r v ..... titi.v..r•'�.., h,ti ��.,.�,.r R
v.,
:......... ..... .vru:nv+:•:ii{.f.�„ry,.. ..:+W'.;���`$$:•i:++r:kF.•r.L,Y..;.T}:.v.•''n�y$T}�•',:i�,Vi,:};ry4, �:.Y.•i}:�".,.,,�, .�'i.';'OS'.�Gi�•�r,�H'�i:.} . d�' .+Oh�i�if�'n{LS4i:rC�Yr�'♦'AG:Gi•ri'w"x:G
,;.v.{.• .. ., .. .
�'i!'� ;}
.;...,
{..;. . ' �: :.: • L'•y�' �";v,'. '�''� `�: �:�•."' t7�21 �3.$'
..�.���:'..�.<� �`•$���5: •�•'� �����' .:.�. ' . .s�
..
,��: . :.
�:+�sssrxa�.uzusts.sx^�.c2�ka.a;i«.>.�:�`,:i�:o�,r•�a�.�%:aS.�..u:�..;a�a:�:�.�:�'s?:i:a�. • ' •••<cax��O�'' ' .
Borrowinq Rate: If the Port Authority borrowed the funds used
to defray the amortized costs of the Energy Park Improvements,
that annual rate of interest which fully reimburses the Port
Authority for the cost of borrowing the funds; if the Port
Authority advanced its own funds to defray the amorti2ed costs
of the Energy Park Improvements, an annual rate of interest
equal to the rate of interest from time to time being charged
by Norwest Bank Minnesota, National Association, as its
"reference rate" or the equivalent. �
ud e • The Energy Park Land-Acquisition and Capital
Improvements Budget and the Twin City Testing Area Land
Acquisition and Capital Improvements Budget attached as
Exhibit A, as such Budget may be amended from time to time
with the approval of the City Council.
District: The area designated by City Council 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 revenues received by the
Port Authority from the sale or lease of land within the
District and from the operation of public improvements
provided for in the Plan.
EDA: The United States Economic Development Administration.
EDAG: The Economic Development Action Grant in the principal
amount of $2,300,000 made to the City for use in the Energy
- Park District.
Enerqy Park District: That portion of the District designated
by City Council Resolution C.F. No. 276898.
Enerqy Park Improvements: Al1 activities included as
permissible capital costs in the Plan and Budget for the
development of the Energy Park District.
u�
4
Ener�qy Park Tax Increment District: The tax increment
financing district created by City Council Resolution C.F. No.
276898.
Enerqy Park Tax Increments: Tax Increments derived from the
Energy Park Tax Increment District (which excludes Subdistrict
Tax Increments derived from the Koppers' Subdistrict) .
Enerqy Svstem: A system of wells, pumps, boilers, chillers,
heat pumps and heat exchangers which generate warmed or cooled
water and/or steam for distribution through pipes to buildings
located in the Energy Park District.
Energy System Reserves: The amounts set forth in Exhibit C
that are to be funded from Energy Park Tax Increments and
accumulated in a repair and replacement account for the
benefit of Energy Park District and used exclusively for the
payment of any capital costs incurred in connection with the
Energy System in excess of Energy System Revenues available
. therefor.
Enerqy System Revenues: District Revenues received from
operation of the Energy System.
Existing Tax Increment Bonds: Bonds issued by the Port
Authority on the initial principal amount of $29,500,000 to
finance �e capital, debt service, and administrative cost of
the �a� �;�.�.
FBS Developer: Ryan St. Paul Limited Partnership a Minnesota
limited partnership, and any successor to its rights permitted � ��
under the FBS Development Agreement. � �� � `�`"
,�„�. JC.Q,•.,�• �f �.
FBS Developer Bonds: The , , �;..:'��`���•� �� � • �t������..: t? be
issued to provide funds to reimburse�h��`� �. ve oper for
certain development costs, but only if such �s ���,��..���... are
issued, and if so, any �s �;�� issued to refund t�e same.
FBS Developer Indemnification: Paragraphs 3 and 4 of the
Remediation and Indemnity Agreement attached to the FBS
Development Agreement as Exhibit J under which the Port
Authority indemnifies the FBS Developer and other Indemnitees
- with respect to certain Hazardous Substances (defined in the
indemnification) brought onto the Koppers' site or generated
thereon prior to December 14, 1984.
FBS Developer Tax Increments: The meaning given that
term in Section 1.1 of th� F��Development Agreement.
�
S Dev lo ment A re ent: That certain Development
Agreement dated , 1991 and entered into by and
among the City, the Port Authority and the FBS Developer.
24229
5
D: The United States Department of Housing and Urban
Development.
Indemnities: The meaning given that term in the FBS Developer
Indemnification.
Industrial ^_.-�, -----� �a�� Revenue Bonds: The non-tax
increment supported b no ds issued by the Port Authority in the
face amount of $6,000,000 in 1985 in connection with the
Energy Park District .'�°`''"�` '`�`''"'"�� "�� "'��"�""' �� � `�"`�'�"'"�
��r.. W�'�;;���';',�,��.�.a�C;��:y.. :�..� .... ���. �..:���:.
• ... • . �: :
.. ..., .:.. .;_
, , ..,;. . '' :�:.
..:
.. . ��k:..�..... .• . . .,
. ::�:v,w',•',w2:;'.'J.;:�k•.::5:.�.�:::�;>x,.•:v.'•'::::;;k,,..:.v,.,..v..k::w.,.....Ys.\C�fwi?.,•bs#i�u:Gvicai;�.9ia''� .:titi:;ia:.iLk'.Ga�.d;5:::::=::.::;aks$
Koppers: Koppers Coke, Inc.
Koppers' Indemnification: The indemnification set forth in
Part XV of the Aqreement for Sale of Land dated July 1, 1982,
between the Port Authority and Koppers.
Koppers' Site: The property located in the Energy Park
District purchased by the Port Authority from Koppers, on
October 14, 1982.
Koppers' Subdistrict: The hazardous substance subdistrict in
the Energy Park Tax Increment District approved by the City
Council pursuant to Resolution C.F. No. 91-351.
Koppers' Subdistrict Bonds: Any bonds issued by the City and
made payable solely from Koppers' Tax Increments and the
proceeds of the bonds.
Koppers' Tax Increments: Subdistrict Tax Increments derived
from the Koppers' Subdistrict. �
Parkinq Ramp Bonds: The Series 1984-R and 1989-B bonds issued
by the Port Authority to refund bonds issued 'to initially
provide funds to acquire and improve two parking ramps in the
Energy Park District, and any bonds issued to refund the same.
Participation Agreement: Collectively, the Participation
Agreements dated November 26, 1980 and November 16, 1982, as
amended between the parties.
- plan:° The Development Program for the District and Tax
Increment Financinq 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 Increment Financing Plan
for the Twin City Testinq Tax Increment District adopted by
City Council C.F. 88-2008 and as amended from time to time.
Subdistrict Tax Increments: Any tax increments derived from
a hazardous substance subdistrict, including the Koppers'
Subdistrict, located in the Energy Park Tax Increment District
24229
6
as a result of a reduction in the original net tax capacity
pursuant to Minnesota Statutes, Section 469.174, subdivision
7, paragraph (b) , or as a result of the extension of the
period for collection of tax increment from the hazardous
substance subdistrict provided for in Minnesota Statutes,
Section 469.176, Subdivision 1, paragraph (g) .
Tax Increments: The tax increments derived from the District
pursuant to Minnesota Statutes, Section 469. 177.
� ...
«�:� .�:r.�. ... .� :� �: �. ,"".�.��.-�.,:::
��...>
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: . ....... .'� . +. . . .. .,;. .. :? . ..... �
}•y••.�:: ..;...::•.: •:•vr•::•..;p}:;.;.;:.ti.;.....::.:i•:....i\.iii".iT:•:i:•):•:}:"ii:i:•....::'::::..:,.:,Y;..;i•k•k4ti ti•:i\+%�riti:4}.r...{•,v,+}}Y.tO...{{•i6'i} '4.::�: '•}}+}.'•^�w{L.i:.iir:...t•i%i^::'.
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-�(�( ::�SC>n'• :��.5. . :�
I{��� � � �' �k�>`'t����.$� ��,.���".�'�,��'��.� � ',��� �'��,'����.�'��
��/�{�,1'�" �� �, ,a.,� >f o�r > < ��. .� .a ..o �Ca
.sc w+. t t F :'ic: a
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��� �;.�.3.`�,.�`�<,.s�`�`.t..��x.�i�''�.��'�'�f����`SwC���•`��#�l'�����'� '�.'••. " .'��. ��.� '�}`,. .�..,�`f�5�?��.�.'�i
,�v)^,. .>:.ia•"•h::%::y6.`�•;,`:x:��tr��fT:�:%3i:{d:�t.;,'`.i::�.•,'•+sy,:,�i,'�,�;;�'iwa,,.�.�v:a.•Y.•,:s,�y,;.+�`q.,t .�v ;.`a�,... a;!?y:,',h,�. „..R,t;�.2,:.\��?�:#:1�:!:�:c:;.
,c��::<a:�.., ..f6r� X`�tcd�'`j'a`�.'.+�r�.�`.:•: ,..•.
#� �' :?�,�....�•+•'•;�.,f,+,l�?F,.a?X,:��:.::.��17.�7.�.'�,�•.,��.,4',�,4',:�?c:;c:���.;+...�'3���,'Rr.•.� .�� �.M,!,' :;%��:�'-.F'._'�•
J�'.r.•�: .:"G: • � .:.p '�.:...�.•.:� .
.`�,, .�''��fa��wb.»m:a�ss.;<••.. :YSth6ev.:a.u��k'»�.^�'rA.Yk?'t>1:a,tv�,•,�i.+w-'^^',a,'••,�`,:• . ."+aa`'��.a�`.f?�Y.wcc'aSo`�.da���,�
';ii• R`
, .vr.:iiii:'�s."i:a 4
Twin City Testinq Bonds: The $3,500,000 Taxable Commercial
Development Revenue Note, Series 1990-1.•�„ ;.::��� by the Port
Authority on June 27, 1990, and any Bonds�issuec� to refund the
same.
Twin City Testing Tax Increment District: The tax increment
financinq district created by City Council Resolution C.F. No.
88-2008.
Twin City Testinq Tax Increments: Tax Increments derived from
Twin City Testing Tax Increment District.
UDAG: The Urban Development Action Grants in the aggregate
rincinal amount of $15,513,500 made to the City :� .��. ��'c�"'�"d r��i
�.. u. �i . 1 : r `��sa.:s�5:%�
� for use in the Energy Park Dis rict.
UDAG Grant Aqreement: Collectively, the UDAG Grant Agreements
dated August 7, 1980 and May 5, 1982, as amended, between the
City and the United States of America Department of Housing
and Urban Development.
3E1�E' 9i �3f.��3�-f�3�-s'��1�Ee—].�3��9�i—�6�8—�A—�� }r;•g{�E�—}F!
i
i i r
- Section 3. �pose. The purpose of this Agreement is to
provide for the administration and operation of the District by the
Port Authority, to provide for the financing thereof, and to set
forth the resgonsibilities of the City and Port Authority in
connection therewith.
Section 4. Port Authority Powers. The City has heretofore
designated the Port Authority as administrator and operator of the
District pursuant to Minnesota Statutes, Section 469.131, and the
Port Authority hereby accepts such designation and agrees to
24229
7
administer and operate the District pursuant to this Agreement in
accordance with said Section 469.131 and Minnesota Statutes Section
469.064, Subdivision 1. The Port Authority may exercise any and
all of the following powers for the purposes 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 constructed 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 structures constructed
under the authority of the Plan;
(e) Enter into contracts for the construction of the
several facilities or portions thereof provided for in
the Plan;
(f) Acquire through eminent domain property that cannot
be acquired by negotiations, but is required for
implementation of the Plan;
(g) Accept from the City the proceeds of such federal,
state and other grants which the City has heretofore
applied for and may hereafter apply for to finance the
capital and administration costs of the Plan;
(h) Request that the City apply for qrants from federal,
state and other sources to finance the capital and
administration costs of the Plan, which qrants the City
shall use its best efforts to obtain;
(i) Receive and use District Revenues and Tax Increments
pursuant to the Plan and this Agreement;
(j) Exercise any and all other powers which are common
or similar to the Port Authority and City and which are
- deemed necessary or convenient by the Port Authority to
administer or operate the Plan, subject to the terms and
conditions of this Agreement.
Section 5. Source of Funds. The sources of funds for the
�� .
administration a�r �: :� operation of the District include Bond
proceeds, Tax Increments, District Revenues, federal and state
grants and such other funds and revenues of the Port Authority as
may be made available for such purpose. City agrees that so lonq
as any � . '� '�' f'°' ';�, ,:���.� gonds are outstanding, the City will not
242t9
8
chanqe the method of computation of tax increment pursuant to
Minnesota Statutes, Section 469.177, Subdivision 3 (c) .
Section 6. �udqet 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 accordance with Section
8 hereunder; provided that if the maximum principal amount of Bonds
payable from Tax Increments or a line item amount 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 ��,�� �.>. �:,.,��;. .:��. ��. •. :��. :.� ..�;..�
-� n hall disburse funds in accor �ance �wi h he u ge , e
priori ies established in Section 7(c) hereunder, and in accordance
with procedures governing other expenditures by the Port Authority
� "'�°>� .��{. Contracts shall be let and purchases
s a. � ��e ma e y es '�or��uthority subj ect to the same procedures
as govern the letting of other contracts and the making of other
purchases by the Port Authority. .
Section 7. District Obliqations; Priority. (a) �xistinq
District Obliqations. The parties a ree that the Existin Tax
. � ::���o�eo� ��,� o zoax«
Increment Bonds were issued :�;.,�;�: .� °'�°;��. � � �'���� . � � � :�• ::� �.•�.,•��i��
.�:,,;�.:.. < � ����� • r • �
r � �> �� � : on �ehal"`� o �e ity as provi e in the
app � � � �� �� �` �;� �� � The Port Authority
c e �::��;.-; ;.�;;:<;:� ...��:.:� •. .
also has u�s a� Indus��'ria � �ar �tevenue -Be�� . in the
t ,000,06 ayable from revenues generated in e Energy
���� Park Dis e sale or lease of land in the Energy Park
District. In this regard the Port Authority specifically covenants
and agrees with the �14 � ���;�:�.� that revenues (excludinq option fees)
generated from the sale or ease of Lot 4 (except the westerly 113
feet the=eof) and Lot 5, Block 1, Energy Park No. 2; and Lot 1,
Block 1, Energy Park No. 4, being the only remaining parcels of
land in Energy Park to be sold, shall be a lied first to the
. :. . �{4'.�.YJM
�ayment of debt service on ����� ��� `� �.���'��� • . ����:.:� �: ��i�e
. : .. .. ss
. . . . . . . . .. . .. . . ... .... �A�YB
.. ..
. . . .� .. . . . ti.i. . : ' ��.. .� . �ti n . . ' . . . ,
. .. . . � ����ii'J.::::
�: or � on s issue � o re�un� �"`t�e��same, or o �un .e requi�=ed
.�� �� � �r_ be sid to the
.. . �.. ::�:>,.. . �....... r shall ,,,�„�.A. ..,...w,
reserves "_---`-�_ and thereafte
HRA �... • '��3������:�.�'�.���'!��� � �'�' ��:���on
v . e ort Authorit '` further ' ,
. , ..:.
-- �. ;�>,� ..�vk�:: v.���::�, � .. � � �:��::.::.;;..
� . y agrees a u ure land
sa� es an eases are to be at fair market value, as determined by
appraisal, and need not reflect the cost of acquiring and
renovatinq the land. In addition, the Port Authority has applied
the Authority Advance, and received the UDAG and EDAG from the City
to finance the Energy Park District provided for in the Plan.�I ���„�_
- ., �`�l^c, (�� ;�- bcr9.s . . . � • �� ��' � fl ov '�j,y�-.GC��� . . .
(b) Additiona District Obliqations: The Port Authority with
consent of the City has concluded an agreement with AHW whereby the
Port Authority has acquired two parking ramps and committed to make
certain capital improvements thereto and to assume the debt service
24229
9
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 the "Twin City Testing
Bonds") . The additional obligations arising from the AHW Aqreement
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 Testinq Tax Incrementa; ..�:�. �:
' ' •}�. •• :, ••3 /,
. : ' �� '... ,; . ., ..�•
• � { '{: � . .,.� , ir•:.�
. � . . • . • X ..-
v,, {.v:v.;:•j}kl {.}; •,f ��f•♦
.: ' . '� � b �r��' �yW �,>H� > .
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.. . . . :. .; .; ':.. .�••�f•4•• s
r . .
.:, ' .: '
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(c) ��ic��ty of Application of Tax Increments.
A. Enerqy Park Tax Increments shall be applied for
the following purposes and in the following order of
priority:
(i) Debt service on Existinq Tax Increment
Bonds (and any Bonds issued to refund the same) ;
(ii) On a parity of lien basis, debt services on
� > the FBS Developer Bonds �--{�} �' �� � ��
� t�e Twin City Testinq Bonds (but on y o . e
e x ten t t ha t t here are insu f f ic ient Tw in City
Testing Tax Increments therefor)
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(iii) Debt service (including 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� per annum, for �
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(v) Energy Park Improvements, including the
Energy System Reserves (described in Exhibit C) not
funded from Bonds or federal grants; provided that
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10
no further payments towards the Energy System
Reserves shall be made once the repair and
replacement reserve for Energy System Improvemen
has been full funded as rovided in clause '""""� x
Y P ��;�; :�.
below; and provided further that the cost of t e
Enerqy Park Improvements described in Exhibit C as
Ramp Capital Costs and Other Capital Costs and paid
at this level of priority shall, as to the Other
Capital Costs, be amortized at the Borrowing Rate
over a ten year period, or such shorter period -as
terminates on December 1, 2007, and, as to Ramp
Capital Costs, be amortized at the Borrowing Rate
over a five year period; or such 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 pursuant to
Section 10(a) hereof;
(viii) Reimbursement, without interest, of the
Authority Advance;
(ix) Reimbursement of the cost of stoplights
(not to exceed $250,000) installed in the Energy
Park District;
(x) A repair and replacement reserve, including
any unexpended Tax Increments used to fund Energy
System Reserves, for Energy. System Improvements up
to their unexpended budgeted amount as set forth in
Paraqraph F hereof.
(xi) Pro rata, the unreimbursed balance of (x)
the UDAG Grants described in Section 10(a) hereof
and (y) the amortized cost of Energy Park
Improvements exclusive of the Energy System
Reserves described in clause (v) above, applied as
a prepayment, in inverse chronoloqical order, of
the installments of principal due under clause (v)
- " above and Section 10(a) hereof.
B. Twin City Testing Tax Increments shall be
applied for the followinq purposes and in the following
order of priority:
(i) Administrative fees payable to the City
pursuant to Section 9(c) hereof��
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(ii) Debt service on any Twin City Testing
Bonds;
(iii) Any Twin City Testinq Area costs (except
housing replacement) included in the Plan and not
paid from the proceeds of Twin City Testing Bonds;
and
• (iv) In satisfaction of the purposes set forth
in clauses (i) through (xi) of paragraph A, above.
C. Debt service �a ents shall include all out of
pocket costs, such as ;�`:> a ing a enc and bond
registrar fees • ���` � �`�`$�l< � ' � '�`�"�" incurred
by the Port Aut �ori y �, ::,�._� ��� �'� '�� .. ;��. :: in
� � ., : . . ::��:.,:�.
carrying the bonds descri�ed' in �ec ion c �i , ii)
and (iii) hereof, and reimbursement of the Port Authority
°'' ' . �. �'��:: " for any such payments made from Port
u ori �y � funds for �s � in princi al
� � � P
amounts as provi e in the Budget. For purposes of this
Aqreement earninqs on Tax Increments shall be deemed Tax
Increments and applied accordinq to paragraph A hereof
except that any earninqs on the Energy System Reserves
described in clause (v) above shall be retained therein
until the amount in the reserve described in clause
�f�}'` �°'° above has been full funded in accordance with
a�}�`� :' Y
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 B above only to the
extent then required to pay any accrued debt service
costs and to satisfy any other debt service funding
rec�uirements under the applicable Bond --'•-'�s--
�� (or reimburse the Port Authority ..:. .. . '. . for
�.�..����i� ;.
� e use of other Port Authority �'°'• . funds �� t at
purpose) ; provided that the e service funding
requirements for any Bonds other than the Existing Tax
Increment Bonds shall not be satisfied or reimbursed out
of Tax Increments unless the Executive Director of the
City's Department of Planninq and Economic Development
("PED") , or his or her designee, or the Cit Council
- f irst consents to the funding requirements � :'�����i � ��': �in
the appl icable Bond �� .:: �. �:���� . Li ewise, max
Increments shall be applied for e purposes set forth in
clauses {�: : � through (xi) of paragraph A above and
clauses (ii) and (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 clause (v) of Paragraph A shall be held in reserve
until expended on the Energy System Improyements�. If
24229 .
� 12
Tax Increments are not required to satisfy any particular
purpose set forth in clauses (i) through (xi) of
paragraph A above or clauses (i) through (iv) 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 Increments which at any time exceed
the amounts then required to satisfy the purposes set
forth in paragraphs A or B above, as the case may be,
shall be held and applied by the Port Authority for said
purposes as and when needed and in the same order of
priority.
E. Notwithstanding anything in this Agreement to
the contrary, the Port Authority reserves the right to
issue such other bonds and provide other financing for
purposes of the Plan and to undertake such other
improvements and projects in the District, in addition to
those contained in or authorized by the Plan, as the Port
Authority deems appropriate, provided, however, such
other bonds, financing and improvements or projects shall
not be subject to payment or reimbursement from� Tax
Increments or District Revenues unless provided for in
the Budqet and Plan. Prior to exercisinq the rights
reserved to the Port Authority under this paragraph E,
for purposes of the Plan, tha Port Authority shall notify
the City in writing of its intent to exercise said rights
and shall consult with the City prior to issuinq bonds or
providing other such financinq.
F. The repair and replacement reserve described in
clause (xj of paraqraph A ahall be funded in the amount
of $10,00�0,000 which shall include the aggregate amount
of payments made towards tha Energy System Reserves
described in clause (v) ot paraqraph A, less any part
thereof includinq earnings spent on the Energy System
Improvements.
(dj �pFlication of Subdistrict Tax Increments. Subdistrict
Tax Increments shall be applied as provided in Section 3.4 of the .
FBS Development Aqreement.
Section 7A. (a) The provision of Section 3.4 of the FBS
Development Aqreement are incorporated herein by reference and made
a part hereof.
(b) If written demand of an Indemnitee is filed with the City
and Port Authority as provided in Section 3.4(1) of the FBS
Development Agreement, the Port Authority shall promptly qive
written notice to the City if, in the opinion of the Port
Authority, the Port Authority is not obligated to honor the demand
either because (ij there are not adequate sources of payment as
provided in the FBS Developer Indemnification or (ii) the Port
2�►229
13
Authority is otherwise not obliqated to honor the demand under the
terms of the FBS Developer Indemnification.
(c) If the City is required under Section 3.4 of the
Development Aqreement to certify the Koppers' Subdistrict or if the
Port Authority has otherwise notified the City under paragraph (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 Indemnification be
submitted to arbitration as hereinafter provided. The
determination of the arbitrator shall be bindinq on the City and
Port Authority and, if the arbitrator determines that there are
sufficient funds to honor the demand, the Port Authority shall
promptly pay over to the City. such available funds. In that event,
the monies remitted to the City, includinq earnings thereon, shall
be maintained in a separate account and applied solely towards the
payment, or the reimbursement for the payment, of costs payable
under the FBS Developer Indemnification. At such time as those
costs have been fully paid or reimbursed, any excess shall then be
returned to the Port Authority. If, prior to a determination by
the arbitrator that there are sufficient Port Authority funds bonds
have been issued and secured by Subdistrict Tax Increments, �any
funds remitted by the Port Authority to the City pursuant to this
Section 7A shall be promptly remitted by the City to the County,
pursuant to 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 Rules of the American
Arbitration Association, unless the City and Port Authority agree
in writing otherwise. -
(e) Any payment made by the City under this Section 7A shall
be deemed made on behalf of the Port Authority, and the Port
Authority agrees that it shall be fully liable to the City to
reimburse the City for any such payment from any amounts the Port
Authority collects for this purpose under the Koppers'
Indemnification or any other remedies available to it under law
(the "Other Remedies") . To this end, the Port Authority agrees
that it will, at the request of the City, but at the expense of the
Port Authority, and only if Koppers' is not insolvent, make and
pursue its remedies under the Roppers' Indemnification or, at the
request and expense of the City, pursue any Other Remedies or take
any other action which the City reasonably determines is
appropriate to secure reimbursement of payment made by the City
under this Sect�on 7A or to eliminate or mitigate the necessity o!
such payments be made, and that in no event will the Port Authority
waive its rights under the Roppers' Indemnification or with respect
to such Other Remedies or other action without the consent of the
City.
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Section 8. Use of Tax Increments. (a) All Tax Increments
shall vest in and be remitted directly to the Port Authority, and
the Port Authority shall segregate the Tax Increments so received
in one or more special accounts on its official books and records
to be used only in accordance with the Plan, the Budget, the
applicable Bond ' ���.�:""��q� , the UDAG Grant Agreement
and this Aqreement in accordanc with e priorities and subject to
the limitations established in Section 7 hereof.
(b) Any remaining Tax Increments shall either be retained by
the Port Authority or a Bond Trustee, to the extent required by the
. . ,K,.,��.;.,,:„s,.V...
applicable Bond � "��'��:��� or this Aqreement for any use
permitted above or be returne���`to the City to be used or
distributed in accordance with applicable law.
Section 9. Administrative Expenses. (a) The Port Authority
has paid to the City the sum of $126,000 due in 1989 under the
prior Energy Park Joint Powers Agreement. In addition thereto the
Port Authority shall pay, but solely from available Energy Park Tax
Increments, the sum of $74,000 payable on October 1, 1989, and
beqinninq January 1, 1990, and continuing each year thereafter in
quarterly installments, the sum of $200,000 per year, such amounts
to accumulate and be paid as provided in Section 7 (c)A(vi) and
subsection (d) , below, and to be used to finance activities of and
services provided by PED in connection with Energy Park District,
to-wit: preparing and submitting tax increment dist�ict reports
required by statute; meeting with citizen groups to convey
information reqarding 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; reporting to HUD and EDA on Energy Park District in a
format and accordinq to procedures as prescribed in federal
regulations; preparing and presenting to the City Council such
reports and information as may be requested by the Port Authority.
(b) The Port Authority shall be entitled to charge against
available Energy Park Tax Increments as provided in Section
7 (c) (vi) hereof and credit to its operating account in quarterly
installments beginning January 1, 1990, the sum of $70,000 per year
until December 31, 1991, $140,000 per year thereafter until
December 31, 1996, and $210,000 per year thereafter, as
reimbursement for all administrative costs incurred by the Port
Authority in connection with the administration of the District and
not otherwise financed out of Bond proceeds, District Revenues or
Tax Increments. In 1989, the annual $70,000 administrative fee
will be due in one lump sum on October 1, 1989. To the extent not
paid, such amounts shall accumulate and be paid as provided in
Section 7 (c)A(vi) and subsection (d) , below.
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(c) The Port Authority shall pay to the City, but only from
available Twin City Testinq 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 to be used to finance
activities of and services provided by the PED in connection with
Twin City Testing Area.
(d) In the event the amount of Energy Park Tax Increments
available for payment of administrative expenses in any year as
provided above is not sufficient to make full payment of the
amounts 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
applied to the payment of fees due to the Port Authority under
subparagraph (b) , above; and any remaining available Tax Increment
shall be divided pro rata between fees due under subparagraphs (a)
and (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 forgoinq application shall be
carried forward and be payable on the same terms, in the following
year or thereafter, when Tax Increments are adequate to fund the
deficiency in addition to the administrative expense due in the
subsequent year.
Section 10. Reimbursement of UDAG Grants. (a) The UDAG
grants shall be repaid to the City, solely from available Energy
Park Tax Increments with interest at the rate of seven and one-half
(7.5�) percent per annum accruing from January 1, 1989, in
accordance with the amortization schedule attached as Exhibit D,
and notwithstanding anything to the contrary contained herein or in
any other document or agreement, the Port Authority shall have �
obliqation to repay the UDAG grants except from available Energy
Park Tax Increments as provided in this Section and Section
7(c)A(vii) . Payments shall commence December 31, 1989 and each
December 31st thereafter. Any unpaid principal or interest shall
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 amount 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 land sale
revenues and energy system profits to the repayment of the UDAG:
(i) the principal amount now due under the UDAG has been increased
by $1,500,000 as reflected on Exhibit D; (ii) proceeds from the
sale or lease of Lot 4 (except the westerly 113 feet thereof) and
Lot 5, Block- 1, -Energy Park No. 2; and Lot 1, Block 1, Energy Park
No. 4, beinq the only remaining parcels of land in Enerqy Park to
be sold, shall be applied as provided in Section 7(a) ; and (iii)
the Port Authority hereby agrees to pay to the HRA in perpetuity
60$ of all annual net profits from the operation of the Energy
System, and to pay to the HRA 60� of all net proceeds from the sale
of the Energy System. Since portions of the UDAG were used in the
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16
acquisition of land in Energy Park and the Energy System, the
obligations of the Port Authority to repay the UDAG under the
forgoing clauses (ii) and (iii) are "Other Secured Bonds" for
purposes of the Port Authority's Basic Resolution No. 876.
(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.
Section 11. Term of Aqreement: Termination. This Agreement
shall continue in effect until terminated in accordance with this
Section. This Agreement may be terminated at any time by agreement
of the City and the Port Authority �except that the relevant portion
of this Agreement may not be terminated while any Bonds or ICoppers'
Subdistrict Bonds are outstanding unless sufficient funds have been
irrevocably deposited in the debt service account or the escrow
account to pay debt service on the Bonds and Koppers' Subdistrict
Bonds to maturity or date of redemption; and except further that
the provisions in Section 7A of this Agreement may not be
terminated until the later of March 2, 2008 or the expiration of
the Roppers� Subdistrict if certified to the County Auditor as
provided in Section 7A. �
Section 12. Distribution of Funds and Property on
Termination. Upon termination of this Aqreement, any Tax
Increments received by the Port Authority in excess of the amount
necessary to pay debt service on the Bonds and to reimburse the
Port Authorit in accordance with Section 9 • •�:���
,
s a e trans erred o�an ecome R� e prope y o e y wi out
payment of any further consideration to the Port Authority and all
other property acquired and held by the Port Authority or the City
pursuant to this Aqreement shall be retained by the party holdinq
title thereto.
Section 13. Amendments. This Agreement may be amended by
agreement of the City and Port Authority in writinq at any time. No
amendment may impair the rights of the holders of any Bond or Bonds
unless consent is qiven in accordance with the Bond covenants.
Section 14. Severabilitv. In the event any provision of this
Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
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,
IN WITNESS WHEREOF, the City of Saint Paul has caused this
Aqreement to be executed on its behalf by its Mayor, its Director
of the Department of Planning and Economic Development and its
Director of the Department of Finance and Management 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 hereunto affixed and
duly attested, all on the day and year first above written.
PORT AUTHORITY OF THE
CITY OF SAINT PAUL
Chair
secretary
Port Authority Siqnature Page - Second
Restated Joint Powers Aqreement
Enerqy Park and Twin City Testing
Districts
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APPROVED AS TO FORM: CITY OF SAINT PAUL
Assistant City Attorney Mayor
Director, Department of
Planning and Economic Development
Director, Department of
Finance and Manaqement Services
City of Saint Paul Signature Paqe - Second
Restated Joint Powers Aqreement
Enerqy Park and Twin City Testinq
Districts - -
ttrt9
19
EXHIBIT A
Acquisition and Capital Improvements Budget
[To Be Provided by Raty Lindblad]
2�►229
,
EXHIBIT B
Debt Service on Parking Ramp Bonds
[To Be Provided by Julie Rimble]
un9
,
E7QiIBIT C
Energy System Reserves
[To Be Provided by Julie Kimble]
z�ii9