HomeMy WebLinkAboutResolution - HRA 96-4 - Contract for Private Redevelopment - HO Retail Properties - 12/17/1996 HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE
CITY OF EDEN PRAIRIE
COUNTY OF HENNEPIN
STATE OF MINNESOTA
RESOLUTION NO. HRA 96-4
A RESOLUTION AUTHORIZING EXECUTION AND DELIVERY OF A CONTRACT FOR
PRIVATE REDEVELOPMENT BY AND BETWEEN THE HOUSING AND
REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF EDEN PRAIRIE AND
HO RETAIL PROPERTIES I LIMITED PARTNERSHIP.
BE IT RESOLVED by the Board of Commissioners (the
"Commissioners") of the Housing and Redevelopment Authority in
and for the City of Eden Prairie, Minnesota (the "Authority") as
follows:
Section 1. Recitals.
1 . 01 It has been proposed that the Authority enter into
a Contract for Private Redevelopment (the "Contract") with Ho
Retail Properties I Limited Partnership (the "Redeveloper") .
Section 2 . Findings.
2 . 01 The Authority hereby finds that the Contract
promotes the objectives as outlined in its Redevelopment Plan for
Redevelopment Project No. 5 established pursuant to Minnesota
Statutes, Sections 469 .001 et sea.
2 .02 The Authority hereby finds that it has approved
and adopted Tax Increment Financing District No. 13 and the City
Council has approved and adopted the Tax Increment Financing Plan
relating thereto pursuant to Minnesota Statutes, Sections 469 .174
through 469 .179, inclusive, as amended and supplemented from time
to time.
Section 3 . Authorizations.
3 . 01 The Chairman and the Executive Director of the
Authority (the "Officers") are hereby authorized to execute and
deliver the Contract when the following condition is met:
Substantial conformance of a Contract to the Contract
presented to the Authority as of this date with such
additions and modifications as the Officers may deem
desirable or necessary as evidenced by the execution
thereof;
Adopted by the Board of Commissioners his f day of
Chairman
AT T
Exe utive Di ector
Draft: December 9, 1996
CONTRACT
FOR
PRIVATE REDEVELOPMENT
By and Between the
HOUSING AND REDEVELOPMENT AUTHORITY
• In and For the
CITY OF EDEN PRAIRIE, MINNESOTA
And
HO RETAIL PROPERTIES I LIMITED PARTNERSHIP
This document was drafted by:
Casserly Law Office, P.A.
Suite 1100 Southpoint Office Center
1650 West 82nd Street
Minneapolis, MN 55431
612/885-1298
TABLE OF CONTENTS
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ARTICLE I
Definitions
Section 1.1. Definitions 4
ARTICLE II
Representations and Warranties
Section 2 . 1. Representations by the Authority 7
Section 2 .2 . Representations and Warranties by the
Redeveloper 7
ARTICLE III
Undertakings of Authority and Redeveloper
Section 3 . 1. Reimbursement to Redeveloper for Site
Improvement Costs 10
Section 3 . 2 . Limitations on Undertaking of the City 10
• Section 3 .3 . Conditions Precedent to Delivery of the Note 10
ARTICLE IV
Construction of Minimum Improvements
Section 4 . 1. Construction of Minimum Improvements 12
Section 4 .2 . Completion of Construction 12
Section 4 . 3 . Certificate of Completion 12
ARTICLE V
Tax Increment
Section 5 . 1. Tax Increment Certification 14
ARTICLE VI
Prohibitions Against Assignment and Transfer; Indemnification
Section 6 . 1 . Prohibition Against Transfer of
Property and Assignment of Agreement 15
Section 6 .2 . Release and Indemnification Covenants 16
•
ARTICLE VII
• Events of Default
Section 7.1. Events of Default Defined 18
Section 7.2 . Remedies on Default 18
Section 7.3 . No Additional Waiver Implied by One Waiver 19
ARTICLE VIII
Additional Provisions
Section 8 .1 . Conflict of Interests 20
Section 8 .2 . Restrictions on Use 20
Section 8 .3 . No Third-Party Beneficiaries 20
Section 8 .4 . Titles of Articles and Sections 20
Section 8 .5 . Notices and Demands 20
Section 8 . 6 . Counterparts 21
Section 8 . 7 . Legal Opinions 21
Section 8 . 8 . Binding Effect 21
Section 8 . 9 . Severability 22
Section 8 .10 . Amendments and Modifications 22
Section 8 .11. Estoppel Certificates 22
Section 8 .12 No Warranty of Condition or Suitability 22
Section 8 .13 Subordination 22
• Section 8 . 14 School District Levy 22
ARTICLE IX
Termination of Agreement
Section 9 .1. Termination - General 24
Section 9 .2 . Termination - Specific 24
Section 9 .3 . Form 24
SIGNATURES 25
SCHEDULE A Description of Redevelopment Property 27
SCHEDULE B Available Tax Increment 28
SCHEDULE C Certificate of Completion 29
SCHEDULE D Note 32
SCHEDULE E Minimum Improvements 38
SCHEDULE F Site Plan 40
SCHEDULE G Site Improvement Costs 41
SCHEDULE H Opinion of Counsel 43
SCHEDULE I Minnesota Business Assistance Form 44
CONTRACT FOR PRIVATE REDEVELOPMENT
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THIS AGREEMENT, made on or as of the day of December,
1996, by and between the Housing and Redevelopment Authority in
and for the City of Eden Prairie, Minnesota (the "Authority") , a
political subdivision of the State of Minnesota organized under
the Constitution and laws of the State of Minnesota, with its
principal offices at 8080 Mitchell Road, Eden Prairie, Minnesota,
55344-2230, and Ho Retail Properties I Limited Partnership, an
Illinois limited partnership with its principal office at 55 West
Monroe Street, Suite 3100, Chicago, IL 60603 (the "Redeveloper") .
WITNESSETH;
WHEREAS, the Board of Commissioners (the "Board") of the
Authority has determined that there is a need for development and
redevelopment within the corporate limits of the City to provide
employment opportunities, to provide adequate housing in the
City, including low/moderate income housing and housing for the
elderly, to improve the tax base and to improve the general
economy of the City and the State of Minnesota; and
WHEREAS, in furtherance of these objectives, there has been
established a Redevelopment Plan for Redevelopment Project No. 5
(the "Project Area" ) in the City of Eden Prairie (the "City" ) to
• encourage and provide opportunity for private development and
redevelopment of certain property in the City which is not now in
its highest and best use;
WHEREAS, as of the date of this Agreement the Redevelopment
Plan has been prepared and approved, and the Project Area has
been established pursuant to Minnesota Statutes, Sections 469 . 001
through 469 . 047 ;
WHEREAS, in connection with the Project Area, the City
Council of the City has created Tax Increment Financing District
No. 13 (the "Tax Increment District") pursuant to the Minnesota
Tax Increment Financing Act contained in Minnesota Statutes,
Sections 469 .174 to 469 .179; and
WHEREAS, the major objectives in establishing the Project
Area are to:
1. encourage the removal of blighted commercial sites and
the construction of modern commercial facilities in
their place;
2 . promote and secure the prompt development or
redevelopment of property in the Project Area in a
manner consistent with the City' s Comprehensive Plan
and with minimal adverse impact on the environment,
. which property is currently less productive because of
the lack of proper utilization and lack of investment,
CONTRACT FOR -PRIVATE REDEVELOP!,=
THIS AGREEMENT, made on or as of the day of December,
1996, by and between the Housing and Redevelopment Authority in
and for the City of Eden Prairie, Minnesota (the "Authority") , a
political subdivision of the State of Minnesota organized under
the Constitution and laws of the State of Minnesota, with its
principal offices at 8080 Mitchell Road, Eden Prairie, Minnesota,
55344-2230, and Ho Retail Properties I Limited Partnership, an
Illinois limited partnership with its principal office at 55 West
Monroe Street, Suite 3100, Chicago, IL 60603 (the "Redeveloper") .
WITNESSETH;
WHEREAS, the Board of Commissioners (the "Board") of the
Authority has determined that there is a need for development and
redevelopment within the corporate limits of the City to provide
employment opportunities, to provide adequate housing in the
City, including low/moderate income housing and housing for the
elderly, to improve the tax base and to improve the general
economy of the City and the State of Minnesota; and
WHEREAS, in furtherance of these objectives, there has been
established a Redevelopment Plan for Redevelopment Project No. 5
(the "Project Area") in the City of Eden Prairie (the "City") to
encourage and provide opportunity for private development and
. redevelopment of certain property in the City which is not now in
its highest and best use;
WHEREAS, as of the date of this Agreement the Redevelopment
Plan has been prepared and approved, and the Project Area has
been established pursuant to Minnesota Statutes, Sections 469 . 001
through 469 . 047 ;
WHEREAS, in connection with the Project Area, the City
Council of the City has created Tax Increment Financing District
No. 13 (the "Tax Increment District") pursuant to the Minnesota
Tax Increment Financing Act contained in Minnesota Statutes,
Sections 469 .174 to 469 .179; and
WHEREAS, the major objectives in establishing the Project
Area are to:
1. encourage the removal of blighted commercial sites and
the construction of modern commercial facilities in
their place;
2. promote and secure the prompt development or
redevelopment of property in the Project Area in a
manner consistent with the City' s Comprehensive Plan
and with minimal adverse impact on the environment,
which property is currently less productive because of
. the lack of proper utilization and lack of investment,
thus promoting and-securing the development of other
land in the City;
3. promote and secure additional employment opportunities
within the Project Area and the City for residents of
the City and the surrounding area, thereby improving
living standards and preventing unemployment and the
loss of skilled labor and other human resources in the
City;
4. secure the increase of property subject to taxation by
the City, the County, the school district and other
taxing jurisdictions in order to better enable such
entities to pay for public improvements and
governmental services and programs required to be
provided by them;
S . promote the concentration of appropriate commercial
development within the Project Area in order to
maintain the area in a manner compatible with its
accessibility and prominence in the City;
6 . provide for the financing and construction for public
improvements in and adjacent to the Project Area
necessary for the orderly and beneficial redevelopment
of the Project Area and adjacent areas of the City;
. 7 . encourage local business expansion, improvement, and
redevelopment, whenever possible;
8 . create a desirable and unique character within the
Project Area through quality land use alternatives and
design quality in new or remodeled buildings;
9 . encourage and provide maximum opportunity for private
redevelopment of existing areas and structures which
are compatible with the Project Area; and
WHEREAS, in order to achieve the objectives of the Authority
and the City in creating the Project Area and adopting the
Redevelopment Plan the Authority is prepared to provide
assistance in accordance with this Agreement.
WHEREAS, the Authority believes that the development and
redevelopment of the Project Area pursuant to this Agreement, and
fulfillment generally of the terms of this Agreement, are in the
vital and best interests of the City and the health, safety,
morals and welfare of its residents, and in accord with the
public purposes and provisions of applicable federal, state and
local laws under which the development and redevelopment are
being undertaken and assisted;
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NOW, THEREFORE, in consideration of the premises and the
• mutual obligation of the parties hereto, each of them does hereby
covenant and agree with the other as follows:
•
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ARTICLE I
. Definitions
Section 1.1. Definitions. In this Agreement, unless a
different meaning clearly appears from the context:
"Act" means Minnesota Statutes, Sections 469 .001, et sea. as
amended.
"Agreement" means this Agreement, as the same may be from
time to time modified, amended, or supplemented.
"Authority" means the Housing and Redevelopment Authority in
and for the City of Eden Prairie, Minnesota.
"Available Tax Increment" means the Tax Increment from Tax
Increment Financing District No. , which is further described
in Schedule B attached to this Agreement and which remains after
the Authority has made the deductions described in Schedule B.
"Certificate of Completion" means the certification, in the
form of the certificate contained in Schedule C attached to and
made a part of this Agreement, provided to the Redeveloper
pursuant to Section 4 .3 . of this Agreement.
"City" means the City of Eden Prairie, Minnesota.
"Construction Plans" means the plans, specifications, drawings
and related documents necessary to secure the City zoning and
planned unit development district review approval which approval
occurred on , 1996 the Redevelopment Property
"County" means the County of Hennepin, Minnesota.
"Event of Default" means an action by the Redeveloper
described in Section 7.1. of this Agreement.
"Legal Counsel" means any firm of recognized legal counsel
acceptable to the Authority and the Redeveloper.
"Minimum Improvements" means the improvements which the
Redeveloper will construct or remodel or cause to be constructed or
remodeled on the Redevelopment Property, which improvements are
described on Schedule E attached to this Agreement and as shown on
the Site Plan.
"Note" means the Limited Revenue Tax Increment Note in the
principal amount of Fifteen Million Dollars ($15, 000, 000. 00) , in
the form of Schedule D attached to this Agreement, and to be made
by the Authority payable to the order of the Redeveloper in
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accordance with Article III of this Agreement. In the event the
• Project costs are less than $87,750, 000 then the principal of the
Note shall be reduced by $170.94 for each $1,000.00, or portion
thereof, that the Project costs are less than $87,750, 000, and the
Authority shall notify the Note owner that the Note principal is
reduced to the amount as described herein and the interest shall be
adjusted accordingly.
"Opinion of Counsel" means the Opinion of Counsel attached as
Schedule H to the Agreement executed by Legal Counsel.
"Plan" means, collectively, the Tax Increment Financing Plan
and Redevelopment Plan adopted by the City and Authority in
connection with the creation of the Tax Increment District and the
Project Area.
"Project" means the Redevelopment Property and Minimum
Improvements.
"Project Area" means Redevelopment Project No. 5 .
"Redeveloper" means Ho Retail Properties I Limited
Partnership, an Illinois limited partnership, and its successors or
assigns .
"Redevelopment Property" means the real property upon which
• the Minimum Improvements are to be constructed which real property
is described in Schedule A of this Agreement.
"Site Improvement Costs" means the costs of the improvements
to be constructed on the Redevelopment Property by the Redeveloper
as described in Schedule G of this Agreement.
"Site Plan" means the plan attached hereto as Schedule F
showing the proposed nature and location of the Minimum
Improvements.
"State" means the State of Minnesota.
"Tax Increment" means only that portion of the real estate
taxes paid with respect to the Redevelopment Property which is
remitted to the Authority as tax increment pursuant to the Tax
Increment Act.
"Tax Increment Act" means the Tax Increment Financing Act,
Minnesota Statutes, Sections 469 .174 to 469 .179, as amended.
"Tax Increment District" means Tax Increment Financing
District No. 13 created by the City and the Authority within the
Project Area.
"Termination Date" means the expiration date of this Agreement
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as described in Article IX.
a "Unavoidable Delays" means delays which are beyond a party's
reasonable control including without limitation, delays caused by
any of the following: strikes, lockouts, actions of labor
movements; casualties to the Minimum Improvements, the
Redevelopment Property or the equipment used to construct the
Minimum Improvements; governmental actions, judicial action
commenced by third parties, citizen opposition or action affecting
this Agreement; adverse weather conditions; acts of God; epidemics;
fire; earthquake; flood; explosions; unusual action of the
elements; invasion; insurrection; war; malicious mischief;
condemnation; governmental restrictions; order of civil or military
or naval authorities; embargoes; or the impossibility of obtaining
materials. Specifically excluded are delays resulting from the
Redeveloper' s inability to obtain financing or the Redeveloper' s
lack of capital.
•
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ARTICLE II
Representations and Warranties
Section 2 .1. Representations b the Authority. The Authority
makes the following representations as the basis for the
undertaking on its part herein contained:
(a) The Authority is a political subdivision of the State of
Minnesota duly authorized and existing and is governed by a board
of commissioners. The Authority has full right, power and
authority to enter into this Agreement, execute and deliver the
Note and carry out its obligations under this Agreement and the
Note.
(b) The Authority has created, adopted and approved the
Project Area as required under the terms of the Act.
(c) The Authority has created, adopted, and approved the Tax
Increment District as required under the Tax Increment Act.
(d) The Authority shall reimburse the Redeveloper for
expenses, eligible for reimbursement under the Act, in accordance
with the Plan and this Agreement.
• (e) The Authority shall make the Note payable to the
Redeveloper in accordance with the provisions of this Agreement and
to pledge tax increment generated by the Tax Increment District to
the payment of the principal of and interest on the Note according
to its terms .
(f) The Authority has duly authorized the execution and
delivery of this Agreement and the Note and the performance of its
obligations hereunder and thereunder and neither the execution and
delivery of this Agreement or the Note, the consummation of the
transaction contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement or the
Note is prevented, limited by or conflicts with the results in a
breach of, the terms, indebtedness, agreement or instrument of
whatever nature to which the Authority is now a party or by which
it is bound, or constitutes a default under any of the foregoing.
Section 2 .2 . Representations and Warranties by the
Redeveloper. The Redeveloper represents and warrants that :
(a) Subject to Unavoidable Delays the Redeveloper will
construct, operate and maintain the Minimum Improvements in
accordance with the terms of this Agreement, the Plan and all
local, state and federal laws and regulations (including, but not
limited to, environmental, zoning, building code and public health
laws and regulations) .
(b) Subject to Unavoidible Delays The Redeveloper will use
• its best commercially reasonable efforts to obtain, in a timely
manner, all required permits, licenses and approvals, and to meet,
in a timely manner, all requirements of all applicable local, state
and federal laws and regulations which must be obtained or met
before the Minimum Improvements may be lawfully constructed.
(c) The Redeveloper is a limited partnership organized under
the laws of the State of Illinois, is authorized to transact
business in the State, has duly authorized the execution and
delivery of this Agreement and the performance of its obligations
hereunder and thereafter, and neither the execution and delivery of
this Agreement, the consummation of the transaction 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, indebtedness, agreement
or instrument of whatever nature to which the Redeveloper is now a
party or by which it is bound, or constitutes a default under any
of the foregoing.
(d) The construction of the Minimum Improvements, in the
opinion of the Redeveloper, would not reasonably be expected to
occur solely through private investment within the reasonably
foreseeable future without the assistance provided by the Authority
pursuant to this Agreement including but not limited to the
enhancement of the rental income received by the Redeveloper from
• the Project.
(e) The Authority has provided to the Redeveloper, and the
Redeveloper acknowledges receipt of, a copy of Laws of Minnesota
for 1995, Chapter 224, Section 58, to be codified in Minnesota
Statutes, Section 116J.991, and entitled "Public Assistance to
Business; Wage and Job Requirements, " requiring that within 2 years
of receiving the assistance provided pursuant to this Agreement,
which for this purpose shall be deemed to be the 2 year period
beginning on the date the Certificate of Completion is issued in
accordance with Section 4 .3, the Redeveloper shall comply with
certain jobs and other obligations stated in the above-mentioned
statute. The Redeveloper hereby covenants to comply with said
obligations, and the Parties agree that said goal level shall be
the creation of _ jobs within the applicable 2 year period. The
Redeveloper acknowledges and agrees that, as required by this
statutory provision, failure to meet said goals will result in an
Event of Default hereunder and in an obligation of the Redeveloper
to repay all of the assistance provided pursuant to this Agreement.
The Redeveloper further agrees that said jobs shall have an hourly
wage of at least $ per hour. This subparagraph shall not be
construed as imposing on the Redeveloper any obligation beyond the
scope and purpose of the above-mentioned statute to maintain or
provide minimum employment and wage levels. The Redeveloper
further agrees to provide to the Authority in a timely manner, or
to the State of Minnesota, as may be applicable, any information
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that is reasonably necessary to comply with the above-mentioned
. statute and in particular the information necessary to complete the
Minnesota Business Assistance Form attached as Schedule I to this
Agreement, provided, however, that the Redeveloper's obligation to
provide the information referred to in this sentence shall
terminate once the Redeveloper has achieved the requirements
contained in this Section 2 .2 (e) .
(f) The total cost of the Project shall be approximately
ninety million dollars ($90, 000, 000) which the Redeveloper shall
verify by documentation described in Section 3 .2 (b) of this
Agreement. However if the Project Cost is less than $87, 750, 000,
then the Note shall be reduced as provided in Article II .
(g) The Redeveloper shall, using efforts consistent with and
for time periods consistent with industry standards, lease the
Minimum Improvements to tenants that are consistent with the
operation of a first class regional mall such as Southdale,
Ridgedale, Rosedale, Burnsville Center and Maplewood Mall .
(h) The Redeveloper shall not seek reimbursement as a Site
Improvement Cost any expense resulting from the preparation of the
space to be leased to the City as described in the Minimum
Improvements.
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ARTICLE III
. Undertakings of Authority and Redeveloper
Section 3 .1. Reimbursement to Redeveloper for Site Improvement
Costs. As consideration for the execution of this Agreement, the
payment of the Site Improvement Costs, the construction of the
Minimum Improvements by the Redeveloper and subject to the further
provisions of this Agreement, the Authority shall deliver the Note
and the Opinion of Counsel to the Redeveloper. The Note shall be
dated, issued and delivered along with the Opinion of Counsel as
soon as practicable but not more than 30 days following the
execution and delivery of this Agreement.
Section 3 .2. Limitations on Undertaking of the Citv.
(a) The Authority shall have no obligation to the Redeveloper
under this Agreement to deliver the Note to the Redeveloper for the
Site Improvement Costs if the Authority, at the time the Note is to
be delivered, is entitled under Section 7.2 . to exercise any of the
remedies set forth therein as a result of an Event of Default which
has not been cured. If the Authority has not exercised its
remedies under Section 7 .2 . and if the Note is withheld due to an
Event of Default which is later cured, such Note shall be delivered
after such Event of Default has been cured.
• (b) The Authority shall have no obligation to provide Note
payments to the Redeveloper for the Site Improvement Costs nor to
issue a Certificate of Completion unless the Redeveloper has
submitted to the Authority sworn statement (s) in a form reasonably
acceptable to the Authority signed by the Redeveloper' s chief
financial officer to the effect that the Site Improvement Costs for
which payment was made have been incurred in connection with the
Construction Plans previously reviewed by the City or the Project
budget previously reviewed by the Authority. Prior to its issuing
the Certificate of Completion, the Authority shall have the right
to audit the Project records and statements at the Redeveloper' s
offices during its normal business hours and upon the Authority
providing reasonable notice. The Authority shall complete its
audit within six months of its receiving the sworn statement (s) .
The Authority shall be deemed to have accepted the amounts for the
Site Improvement Costs, assuming there is no Event of Default, when
it issues a Certificate of Completion in accordance with Section
4.3 .
Section 3 .3 . Conditions Precedent to Payment of the Note. The
Authority' s obligation to make the Note payments shall be
contingent upon the satisfaction by the Redeveloper of the
following conditions precedent :
(a) The Redeveloper shall be in material compliance with all
• 10
of the terms and provisions of this Agreement.
(b) The Redeveloper shall have received a Certificate of
Completion from the Authority, pursuant to Section 4.3 . of this
Agreement.
(c) The Redeveloper shall have delivered to the Authority the
documents required by Section 3 .2 . (b) above.
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ARTICLE IV
• Construction of Minimum Improvements
Section 4.1. Construction of Minimum Improvements. The
Redeveloper agrees that, subject to Unavoidable Delays, it will
construct the Minimum Improvements on the Redevelopment Property in
accordance with the Construction Plans to be approved by the City
in accordance with its customary procedures and regulations.
Section 4.2 . Completion of Construction. Subject to
Unavoidable Delays, the Redeveloper shall have substantially
completed the construction of the Minimum Improvements by
December 31, 1999 . All work with respect to the Minimum
Improvements to be constructed or provided by the Redeveloper on
the Redevelopment Property shall be in substantial conformity with
the Construction Plans as submitted by the Redeveloper and approved
by the City.
The Redeveloper agrees for itself, it successors and assigns,
and every successor in interest to the Redevelopment Property, or
any part thereof, that the Redeveloper, and such successors and
assigns, shall diligently prosecute to completion the development
of the Redevelopment Property through the construction of the
Minimum Improvements thereon, and that such construction shall in
• any event be completed within the period specified in this Section
4 .2 . of this Agreement.
Section 4 .3 . Certificate of Completion. (a) Promptly after
substantial completion of the Minimum Improvements in accordance
with the provisions of this Agreement relating to the obligations
of the Redeveloper to construct the Minimum Improvements (including
the date for completion thereof) and the completion of any audit as
provided in Section 3 .2 of this Agreement, the Authority will
furnish the Redeveloper with the Certificate of Completion so
certifying. Such certification by the Authority shall be (and it
shall be so provided in the certification itself) a conclusive
determination of satisfaction and termination of the agreements and
covenants in this Agreement with respect to the obligations of the
Redeveloper, and its successors and assigns, to construct the
Minimum Improvements and the date for the completion thereof.
(b) If the Authority shall refuse or fail to provide the
Certificate of Completion in accordance with the provisions of this
Section 4 .3 . of this Agreement, the Authority shall, within ten
twenty (20) days after written request by the Redeveloper, provide
the Redeveloper with a written statement, indicating in adequate
detail in what respects the Redeveloper has failed to complete the
Minimum Improvements in accordance with the provisions of this
Agreement, or is otherwise in default.
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(c) The construction of the Minimum Improvements shall be
• deemed to be substantially completed when the Redeveloper, Dayton's
and Sears have each received an occupancy permit allowing for
occupancy of their space in the Minimum Improvements from the
City's building inspector, which permits shall not be unreasonably
withheld and whose issuance shall be in accordance with all
applicable law.
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ARTICLE V
Tax Increment
Section 5.1. Tax Increment Certification. Pursuant to the
Plan, the Authority has pledged and shall appropriate the
Available Tax Increment, subject to this Agreement, to the
payment of the principal of and interest on the Note, said
payment to be made in accordance with the terms and provisions as
stated in the Note.
•
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ARTICLE VI
• Prohibitions Against Assignment and Transfer; Indemnification
Section 6.1. Prohibition Against Transfer of Property and
Assignment of Agreement. The Redeveloper represents and agrees
that prior to the issuance of the Certificate of Completion:
(a) Except for leases to lessees of the Minimum
Improvements and other portions of the Project and for the
purpose of obtaining construction and/or permanent financing
necessary to enable the Redeveloper or any successor in interest
to the Redevelopment Property, or any part thereof, to perform
its obligations with respect to the Project under this Agreement,
and any other purpose authorized by this Agreement, the
Redeveloper (except as so authorized) will not sell, assign,
convey or otherwise transfer its rights or obligations under this
Agreement and/or substantially all of the Project without prior
written approval given by the Authority in its reasonable
discretion. Such approval shall be deemed to have been given if
the Authority has not responded specifying with particularity the
reasons for any denial within 60 days of a written request by the
Redeveloper for such approval .
(b) The Authority shall be entitled to require, except as
• otherwise provided in this Agreement, as conditions to any such
approval that:
(i) Any proposed transferee shall have the
qualifications and financial responsibility, in the
reasonable judgment of the Authority, necessary and adequate
to fulfill the obligations undertaken in this Agreement by
the Redeveloper.
(ii) Any proposed transferee, by instrument in
writing reasonably satisfactory to the Authority, shall, for
itself and its successors and assigns, and expressly for the
benefit of the Authority, have expressly assumed all of the
obligations of the Redeveloper under this Agreement and
agrees to be subject to all of the conditions and
restrictions to which the Redeveloper is subject.
(c) The provisions of this Section shall not apply to the
exceptions described in Section 6.1 (a) nor to any sale,
conveyance or other transfer or assignment made by the
Redeveloper: (1) to any entity controlled by, controlling or
under common control of the Redeveloper or General Growth
Properties, Inc. , a Delaware Corporation, (2) to an anchor tenant
(who may purchase rather than lease a part of the Redevelopment
Property) or (3) in conjunction with a mortgage foreclosure,
either by advertisement or action or a deed in lieu thereof, or
. 15
any transfer by any lender or its transferee from time to time.
Section 6.2. Release and Indemnification Covenants.
(a) The Redeveloper covenants and agrees that the Authority
and the governing body members, officers, agents, servants and
employees thereof shall not be liable for, and agrees to
indemnify and hold harmless the Authority and the governing body
members, officers, agents, servants and employees thereof
against, any loss or damage to property or any injury to or death
of any person occurring at or about or resulting from any defect
in the Minimum Improvements, except for any loss resulting from
negligent, willful or wanton misconduct of any such parties, and
provided that the claim therefor is based upon the acts of
Redeveloper or of others acting on the behalf or under the
direction or control of Redeveloper.
(b) Except for any negligent or willful misrepresentation
or any negligent, willful or wanton misconduct of the following
named parties, the Redeveloper agrees to protect and defend the
Authority and the governing body members, officers, agents,
servants and employees thereof, now or forever, and further
agrees to hold the aforesaid harmless from any claim, demand,
suit, action or other proceeding whatsoever by any person or
entity whatsoever arising or purportedly arising from this
Agreement or the transactions contemplated hereby or the
acquisition, construction, installation, ownership, and operation
• of the Minimum Improvements, and provided that in all cases the
claim therefor is based upon the acts of Redeveloper or of others
acting on the behalf or under the direction or control of
Redeveloper.
(c) The Authority and the governing body members, officers,
agents, servants and employees thereof shall not be liable for
any damage or injury to the persons or property of the
Redeveloper or its officers, agents, servants or employees or any
other person who may be about the Redevelopment Property or
Minimum Improvements due to any act of negligence of any person,
other than the negligence and misconduct of Authority employees
or those employed or engaged by the Authority.
(d) All covenants, stipulations, promises, agreements and
obligations of the Authority contained herein shall be deemed to
be the covenants, stipulations, promises, agreements and
obligations of the Authority and not of any governing body
member, officer, agent, servant or employee of the Authority in
the individual capacity thereof.
(e) The indemnification covenants made by Redeveloper in
this Section 6.2 . shall terminate upon the issuance of the
Certificate of Completion; provided that said covenants shall
continue to be effective thereafter with respect to all claims,
whenever asserted, which are based on acts, omissions or other
16
events which occurred prior to the issuance of the Certificate of
Completion.
(f) Nothing in this section of this Agreement is intended
to waive any municipal liability limitations contained in
Minnesota Statutes, particularly Chapter 466.
17
ARTICLE VII
Events of Default
Section 7.1. Events of Default Defined. The following are
Events of Default under this Agreement:
(a) Failure of the Redeveloper to complete the Project
substantially in conformance with the terms, conditions, and
limitations of this Agreement which failure is not cured within
the period of time set forth in Section 7.2.
(b) Failure by the Redeveloper in a timely manner to
substantially observe or perform any covenant, condition,
obligation, or agreement on its part to be observed or performed
under this Agreement which failure is not cured within the period
of time set forth in Section 7.2 .
(c) The Redeveloper shall:
(i) file any petition in bankruptcy or for any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the United
States Bankruptcy Code or under any similar federal or state
law; or
• (ii) make an assignment for the benefit of its
creditors; or
(iii) admit in writing its inability to pay its debts
generally as they become due; or
(iv) be adjudicated as bankrupt or insolvent; or if a
petition or answer proposing the adjudication of the
Redeveloper 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
ninety (90) days after the filing thereof; or a receiver,
trustee or liquidator of the Redeveloper or of the
Redevelopment Property, or part thereof shall be appointed
in any proceeding brought against the Redeveloper and shall
not be discharged within ninety (90) days after such
appointment, or if the Redeveloper shall consent to or
acquiesce in such appointment.
Section 7.2 . Remedies on Default. In the event the
Authority desires to exercise any of its rights or remedies as
provided herein or otherwise available to the Authority at law or
in equity, the Authority shall first provide written notice to
Redeveloper setting forth with specificity and particularity the
• 18
alleged default (the "Default Notice") . The Redeveloper shall
• have sixty (60) days from its receipt of a Default Notice to cure
or remedy the default specified in the Default Notice, or such
longer period as may be reasonably required to complete the cure
as soon as reasonably possible under the circumstances . If
following the Redeveloper's receipt of a Default Notice the
Redeveloper does not cure or remedy the default therein specified
within the time provided above, the Authority may take any one or
more of the following actions at any time prior to the
Redeveloper's curing or remedying the default:
(a) Suspend its performance under this Agreement until it
receives assurances from the Redeveloper, deemed reasonably
adequate by the Authority in its sole discretion, that the
Redeveloper will cure its default and continue its performance
under this Agreement.
(b) Terminate this Agreement.
(c) Withhold the Certificate of Completion.
Section 7.3 . No Additional Waiver Implied by One Waiver.
In the event any agreement contained in this Agreement should be
breached by either the Authority or the Redeveloper and
thereafter waived by either the Authority or the Redeveloper,
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.
• 19
ARTICLE VIII
• Additional Provisions
Section 8.1. Conflict of Interests. No member, official,
or employee of the Authority shall have any personal interest,
direct or indirect, in this Agreement, nor shall any such member,
official, or employee participate in any decision relating to the
Agreement which affects his personal interests or the interests
of any corporation, partnership, or association in which he is,
directly or indirectly, interested.
Section 8 .2 . Restrictions on Use. The Redeveloper shall
not discriminate upon the basis of race, color, creed, sex or
national origin in the sale, lease, or rental or in the use or
occupancy of the Redevelopment Property or any improvements
erected or to be erected thereon, or any part thereof.
Section 8 .3 . No Third-Party Beneficiaries. There shall be
no third-party beneficiaries to this Agreement . More
specifically, the Authority enters into this Agreement, and
intends that the consummation of the Authority's obligations
contemplated hereby shall be, for the sole and exclusive benefit
of the Redeveloper, and notwithstanding the fact that any other
"person" may ultimately participate in or have an interest in the
Project, or any portion thereof, the Authority does not intend
that any party other than the Redeveloper shall have, as alleged
third party beneficiary or otherwise, any rights or interests
hereunder as against the Authority, and no such other party shall
have standing to complain of the Authority's exercise of, or
alleged failure to exercise, its rights and obligations, or of
the Authority' s performance or alleged lack thereof, under this
Agreement.
Section 8 .4 . Titles of Articles and Sections. Any titles
of the several parts, Articles, and Sections of this Agreement
are inserted for convenience of reference only and shall be
disregarded in construing or interpreting any of its provisions.
Section 8 .5. Notices and Demands. Except as otherwise
expressly provided in this Agreement, a notice, demand, or other
communication under this Agreement by either party to the other
shall be sufficiently given or delivered if it is dispatched by
registered or certified mail, postage prepaid, return receipt
requested, or transmitted by facsimile with the original
delivered by any of the other means set forth in this Section
8 .5, or delivered by a recognized overnight courier or delivered
personally; and
(a) in the case of the Redeveloper, is addressed to or
delivered personally to the Redeveloper at:
• 20
Ho Retail Properties I
55 West Monroe Street
Suite 3100
Chicago, IL 60603
Attn: Senior Vice President - Development
With a copy to:
Ho Retail Properties I
55 West Monroe Street
Suite 3100
Chicago, IL 60603
Attn: General Counsel
And with a copy to Redeveloper' s lender if so requested in
writing by the Redeveloper.
or at such other address as the Redeveloper may, from time to
time, designate in writing and forward to the Authority; and
(b) in the case of the Authority, is addressed to or
delivered personally to the Authority at :
Housing and Redevelopment Authority
City of Eden Prairie
City Hall
8080 Mitchell Road
• Eden Prairie, MN 55344
Attention: City Manager
With a copy to:
Lang, Pauly, Gregerson & Rosow, Ltd.
1600 IBM Park Building
650 Third Avenue South
Minneapolis, MN 55402-4337
Attn: Richard F. Rosow, Esq.
Section 8 .6. Counterparts. This agreement is executed in
any number of counterparts, each of which shall constitute one
and the same instrument.
Section 8 .7. Legal Opinions. Upon execution of this
Agreement, each party shall supply the other party with an
opinion of its legal counsel to the effect that this Agreement is
legally issued or executed by, and valid and binding upon, such
party, and enforceable in accordance with its terms .
Section 8 . 8 . Binding Effect. This Agreement shall inure to
the benefit of and shall be binding upon the Authority and the
Redeveloper and their respective successors and permitted
assigns. Nothing in this Agreement express or implied, shall
21
give to any person, lessee, occupant or permitted purchaser under
• Section 6.1 (c) (2) , other than the parties hereto, and their
respective successors and permitted assigns hereunder any benefit
or responsibility or other legal or equitable right, remedy,
claim or obligation under this Agreement.
Section 8 .9 . Severability. In the event any provision of
this Agreement shall be held invalid, illegal or unenforceable by
any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof,
and the remaining provisions shall not in any way be affected or
impaired thereby.
Section 8 .10 . Amendments and Modifications. This Agreement
may not be effectively amended, changed, modified or altered
unless consented to in writing by both the Authority and
Redeveloper.
Section 8 .11. Estoppel Certificates. Upon request by the
Redeveloper, the Authority within 7 business days shall execute
an estoppel certificate identifying this Agreement and any
amendments hereto, verifying that there is no Event of Default or
event or condition that, with the giving of notice or lapse of
time, or both, would constitute an Event of Default and, if
applicable verifying that any transferee of the Redeveloper is a
permitted transferee in accordance with the provisions of Article
VI and such other information as Redeveloper may reasonably
• request.
Section 8 .12 . No Warranty of Condition or Suitability. The
Authority does not make any warranty either express or implied,
as to the design or capacity of the Project, as to the
suitability or operation of the Project, or as to the
Redeveloper' s purposes or needs.
Section 8 .13 . Subordination. The Authority recognizes that
the Redeveloper may require construction and/or permanent
financing for the Minimum Improvements ("Improvement Loan") and
that in order to do so, the lender will require a first mortgage
or other lien ("Mortgage") on the Redevelopment Property which is
prior to the rights of the Authority under this Agreement. The
Authority agrees that at the time of the closing of an
Improvement Loan it will enter into a subordination agreement in
form and content acceptable to the lender.
Section. 8 .14. School District Levy. 1992 Minnesota Laws
Chapter 499, Article 7, Section 31 (the "Levy Repeal Statute")
repeals those portions of Minnesota Statutes that relate to
property taxes school districts may levy each year to operate the
elementary and secondary schools of the district. The Levy
Repeal Statute is effective June 30, 1999 . If the Levy Repeal
Statute becomes effective, there will be substantially less
• 22
Available Tax Increment and the Note principal will most likely
not be paid in full.
In the event the Levy Repeal Statute, a similar statute or a
replacement statute becomes effective prior to December 31, 2007
and results in generating less Available Tax Increment, then the
Authority and the Note Holder agree to amend the Note by
extending its duration for the duration of the Tax Increment
District if necessary, in order to allow full payment of the
Note. The Authority and the Note Holder agree to execute any
documents necessary to effect the intentions described in this
section.
•
. 23
ARTICLE IX
Termination of Acreement
Section 9.1. Termination - General. The Authority may
terminate this Agreement as provided herein, and otherwise this
Agreement shall terminate upon payment of the Note in accordance
with its terms , but no such termination shall terminate any
indemnification or other rights or remedies arising hereunder due
to any Event of Default which occurred prior to such termination.
Section 9 .2 . Termination - Specific. In the event the
Redeveloper is unable to secure adequate financing to construct
the Minimum Improvements or to secure anchor department store
tenants or users, then the Redeveloper, at its option, may
terminate the Agreement. If a termination occurs under this
Section 9 .2 then the Redeveloper and the City shall have no
further obligation to each other except as provided in Section
9 . 1.
Section 9 .3 . Form. Upon request by either the Redeveloper
or the Authority, this termination shall be in a recordable form
and executed by both the Redeveloper and the Authority.
IN WITNESS WHEREOF, the Authority has caused this Agreement to be
duly executed in its name and behalf by its duly authorized
representatives, and the Redeveloper has caused this Agreement to
• be duly executed in its name and behalf by its duly authorized
representative, on or as of the date of first above written.
• 24
Dated: I&er 174
•
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE
CITY O EDEN PRAI IE, INNESOTA
By
Chairman
An by "
is Exe tive Direcoor
STATE OF MINNESOTA )
ss
COUNTY OF HENNEPIN )
On this /7Mday of 2)ft-1tbPr-_ 199 ( before me, a
notar public within and for Hen epin Count , personally appeared
a ni�Y�'1S and h� �e� B� to me
• personally known who by me duly sworn, did say hat they are the
Chairman and Executive Director of the Housing and Redevelopment
Authority in and for the City of Eden Prairie, Minnesota, a
political subdivision of the State of Minnesota, and acknowledged
the foregoing instrument on behalf of said Authority.
KATHLEEN A PORTA
NOTARY PUBLIC-MINNESOTA Notary Public
My commission expires 013100
..e
Authority Signature Page — Redevelopment Contract
25
• Dated:
HO RETAIL PROPERTIES I
LIMITED PARTNERSHIP,
an Illinois limited partnership
BY: GGP GENERAL I, INC. ,
a Delaware corporation,
its general partner
By:
Its :
STATE OF )
) ss
COUNTY OF )
On this day of 199_ before me, a
• notary public within and for County, personally appeared
the of GGP
General I, Inc. , a Delaware corporation, general partner of Ho
Retail Properties I Limited Partnership, an Illinois limited
partnership, and acknowledged the foregoing instrument on behalf
of said limited partnership.
Notary Public
Redeveloper Signature Page - Contract for Private Redevelopment
26
SCHEDULE A
iDESCRIPTION OF REDEVELOP14ENT PROPERTY
Parcel Identification Numbers:
14-116-22-42-0009
14-116-22-42-0003
As shown on the map attached to this Schedule A.
•
27
S`C=DULE 3
• AVAILABLE TAX INCREMENT
In each six month period, shown below, the Authority will
retain 40 percent of the Tax Increment but not less than Column A
below (if the Tax Increment is less than Column A then the
Authority retains all of the Tax Increment) nor more than Column
B below. After the above calculation, the remainder is Available
Tax Increment.
Period
Ending Column A Column B
August 1, 1999 5, 046 8, 970
February 1, 2000 5, 046 8, 970
August 1, 2000 191, 881 341, 122
February 1, 2001 191, 881 341,122
August 1, 2001 206, 325 366, 799
February 1, 2002 206, 325 366, 799
August 1, 2002 220, 769 392,477
February 1, 2003 220, 769 392,477
August 1, 2003 235, 212 418,154
February 1, 2004 235, 212 418,154
August 1, 2004 249, 655 443, 831
February 1, 2005 249, 655 443, 831
. August 1, 2005 264, 098 469,508
February 1, 2006 264, 098 469, 508
August 1, 2006 278, 542 495, 185
February 1, 2007 278, 542 495, 185
August 1, 2007 278, 542 495,185
February 1, 2008 278, 542 495, 185
August 1, 2008 278, 542 495, 185
February 1, 2009 278, 542 495, 185
August 1, 2009 278, 542 495,185
February 1, 2010 278, 542 495, 185
August 1, 2010 278, 542 495, 185
February 1, 2011 278, 542 495,185
August 1, 2011 278, 542 495,185
February 1, 2012 278,542 495,185
August 1, 2012 278, 542 495,185
February 1, 2013 278, 542 495,185
August 1, 2013 278, 542 495,185
February 1, 2014 278, 542 495,185
28
SCHEDULE C
• CERTIFICATE OF COMPLETION
WHEREAS, the Housing and Redevelopment Authority in and for
the City of Eden Prairie, Minnesota, a Minnesota municipal
corporation (the "Authority") and Ho Retail Properties I Limited
Partnership, an Illinois limited partnership (the "Redeveloper") ,
have entered into a Contract for Private Redevelopment (the
"Agreement") dated , 199 , regarding certain real
property described on Exhibit 1 attached hereto (hereinafter
referred to and referred to in the Agreement as the
"Redevelopment Property") ; and
WHEREAS, the Agreement contains certain conditions and
provisions requiring the Redeveloper to construct improvements
upon the Redevelopment Property (hereinafter referred to and
referred to in the Agreement as the "Minimum Improvements") ; and
WHEREAS, Section 4 .3 . of the Agreement requires the
Authority to provide an appropriate instrument promptly after the
substantial completion (as defined in the Agreement) of the
Minimum Improvements so certifying said substantial completion;
NOW, THEREFORE, in compliance with said Section 4 .3 . of the
Agreement, this is to certify that the Redeveloper has
• substantially completed the Minimum Improvements in accordance
with the conditions and provisions of the Agreement relating
thereto (including the date for completion thereof) , and this
certification shall be a conclusive determination of satisfaction
and termination of the agreements and covenants in the Agreement
with respect to the obligations of the Redeveloper, and its
successors and assigns, to construct the Minimum Improvements and
the dates for the completion thereof and that the Redeveloper has
no further obligations under the Agreement except as provided in
Sections 2 .2 (e) , 6 .2, 8 .2 and 9 .3 .
• 29
Dated. .Q�t11L 1' 17 190
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE
CIT?,DEN PRAIRI NNESOTA
By
ChairmanAnd V
Its Exe u ive Direct
STATE OF MINNESOTA )
ss
COUNTY OF HENNEPIN )
On this 17#1 day of 19910 before me, a
notary public within and for He epin County, personally appeared
A!, 1. �1 jam/ s and n�-) -- er' to me
. personally known who by me duly sworn,, did say th t they are the
Chairman and Executive Director of the Housing and Redevelopment
Authority in and for the City of Eden Prairie, Minnesota, a
political subdivision of the State of Minnesota, and acknowledged
the foregoing instrument on behalf of said Authority.
KATHlEEN A PpRTA
NOTARY PUBLIC—MINNESOTA Notary Public
My commission expires 013100
. 30
EXHIBIT 1
• LEGAL DESCRIPTION
•
31
SCHEDULE D
• NOTE
US $15, 000, 000. 00 199
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF EDEN PRAIRIE, MINNESOTA
LIMITED REVENUE TAX INCREMENT NOTE
The Housing and Redevelopment Authority in and for the City
of Eden Prairie, Minnesota (the "Authority") , for value received,
promises to pay to the order of Ho Retail Properties I Limited
Partnership, an Illinois limited partnership, its successors and
assigns (the "Owner") the maximum principal sum of Fifteen
Million Dollars ($15, 000, 000 . 00) , in semiannual installments on
February 1 and August 1 of each year, commencing August 1, 1999
to and including February 1, 2014 (each being a "Scheduled
Payment Date") together with interest on the outstanding and
unpaid balance of such principal sum from August 1, 1998 until
said principal sum is paid at the rate of ten percent (10 . 00a)
per annum. Interest on the outstanding balance of this Note
• shall accrue from August 1, 1998 and shall be added to the
principal each February 1 and August 1 unless paid. Installments
of principal and interest due on each Scheduled Payment Date
shall be in the amounts described below. Any such installment
payments on this Note shall be applied first to interest and then
to reduction of outstanding principal. In the event interest due
on this Note as of any Scheduled Payment Date is more than the
installment payment actually made on such date, the unpaid
interest shall be added to the outstanding unpaid principal
balance hereof and shall bear interest at the rate of 10 . 0001 per
annum.
Upon 30 days' prior written notice from the Authority to the
Owner, the Principal Amount is subject to prepayment at the
option of the Authority in whole or in part August 1, 1999 and on
each February 1 and August 1 thereafter.
Each payment on this Note is payable in any coin or currency
of the United States of America which on the date of such payment
is legal tender for public and private debts and shall be made by
check or draft made payable to the Owner and mailed to the Owner
at its postal address within the United States which shall be
designated from time to time by the Owner.
The Note is a special and limited obligation and not a
• 32
general obligation of the Authority, which has been issued by the
• Authority pursuant to and in full conformity with the
Constitution and laws of the State of Minnesota, including
Minnesota Statutes, Section 469 .178, subdivision 4, to aid in
financing a project, as therein defined, of the Authority
consisting generally of defraying certain public redevelopment
costs incurred and to be incurred by the Authority within and for
the benefit of its Development District No. 1
THE NOTE IS NOT A GENERAL OBLIGATION OF THE AUTHORITY, THE
CITY OF EDEN PRAIRIE (THE "CITY") OR THE STATE OF MINNESOTA (THE
"STATE") , AND NEITHER THE AUTHORITY, THE STATE NOR ANY POLITICAL
SUBDIVISION THEREOF SHALL BE LIABLE ON THE NOTE, NOR SHALL THE
NOTE BE PAYABLE OUT OF ANY FUNDS OR PROPERTIES OTHER THAN
AVAILABLE TAX INCREMENT, AS DEFINED BELOW.
The principal of and interest on this Note is due on any
Scheduled Payment Date and is payable solely from and only to the
extent that the Authority shall have received as of such
Scheduled Payment Date Available Tax Increment, which is defined
on Exhibit 1 attached.
The Authority shall pay on each Scheduled Payment Date to
the Owner all Available Tax Increment. On February 1, 2014, the
maturity date of this Note, any unpaid portion shall be deemed to
have been paid in full provided that all Available Tax Increment
has been paid to the Owner as provided in this Note.
• This Note shall not be payable from or constitute a charge
upon any funds of the Authority, and the Authority shall not be
subject to any liability hereon or be deemed to have obligated
itself to pay hereon from any funds except the Available Tax
Increment, and then only to the extent and in the manner herein
specified.
The Owner shall never have or be deemed to have the right to
compel any exercise of any taxing power of the Authority or of
any other public body, nor to enforce payment thereof against any
property of the Authority or other public body other than that
expressly pledged herein for the payment of this Note. Neither
the Authority nor any director, commissioner, council member,
board member, officer, employee or agent of the Authority, nor
any person executing or registering this Note shall be liable
personally hereon by reason of the issuance or registration
hereof or otherwise.
IT IS HEREBY CERTIFIED AND RECITED that all acts,
conditions, and things required by the Constitution and laws of
the State of Minnesota to be done, to have happened, and to be
performed precedent to and in the issuance of this Note have been
done, have happened, and have been performed in regular and due
form, time, and manner as required by law; and that this Note,
• 33
together with all other indebtedness of the Authority outstanding
• on the date hereof and on the date of its actual issuance and
delivery, does not cause the indebtedness of the Authority to
exceed any constitutional or statutory limitation thereon.
IN WITNESS WHEREOF, the Authority has caused this Note to be
executed by the manual signatures of its Chairman and Executive
Director and has caused this Note to be dated ,
199 .
By By
Its Chairman Its Executive Director
•
• 34
CERTIFICATE OF REGISTRATION
It is hereby certified that the foregoing Note, as
originally issued on the day of , 199 , was
on said date registered in the name of Ho Retail Properties I
Limited Partnership, and that, at the request of said Owner of
this Note, the undersigned has this day registered this Note as
to principal and interest on the Note in the name of such owner,
as indicated in the registration blank below, on the books kept
by the undersigned for such purposes.
Name of Date of Signature of
Registered Owner Registration Executive Director
Ho Retail Properties I 199_
Limited Partnership
35
B=IBIT 1
AVAILABLE TAX INCREMENT
"Available Tax Increment" means the Tax Increment, as
defined below, from Tax Increment Financing District No. as
defined below, which remains after the Authority has made the
following calculation: in each six month period, shown below, the
Authority will retain 40 percent of the Tax Increment but not
less than Column A below (if the Tax Increment is less than
Column A then the Authority retains all of the Tax Increment) nor
more than Column B below. After the above calculation, the
remainder is Available Tax Increment.
Period
Ending Column A Column B
August 1, 1999 5, 046 8, 970
February 1, 2000 5, 046 8, 970
August 1, 2000 191, 881 341, 122
February 1, 2001 191, 881 341,122
August 1, 2001 206,325 366, 799
February 1, 2002 206, 325 366, 799
August 1, 2002 220, 769 392,477
February 1, 2003 220, 769 392,477
August 1, 2003 235,212 418, 154
February 1, 2004 235,212 418,154
• August 1, 2004 249, 655 443, 831
February 1, 2005 249, 655 443, 831
August 1, 2005 264, 098 469, 508
February 1, 2006 264, 098 469, 508
August 1, 2006 278, 542 495, 185
February 1, 2007 278, 542 495, 185
August 1, 2007 278, 542 495, 185
February 1, 2008 278, 542 495, 185
August 1, 2008 278,542 495, 185
February 1, 2009 278, 542 495,185
August 1, 2009 278, 542 495, 185
February 1, 2010 278, 542 495,185
August 1, 2010 278,542 495, 185
February 1, 2011 278, 542 495,185
August 1, 2011 278, 542 495, 185
February 1, 2012 278,542 495, 185
August 1, 2012 278, 542 495, 185
February 1, 2013 278, 542 495, 185
August 1, 2013 278, 542 495, 185
February 1, 2014 278,542 495,185
"Tax Increment" means only that portion of the real estate
taxes paid with respect to the Redevelopment Property, and
improvements thereto described in Exhibit 1-1 of the Note, which
is remitted to the Authority as tax increment pursuant to the Tax
• 36
Increment Act, as defined below.
i 'tTax Increment Act" means the Tax Increment Financing Act,
Minnesota Statutes, Sections 469.174 to 469.179, as amended and
as it may be amended.
"Tax Increment District" means Tax Increment Financing
District No. created by the City and the Authority.
•
• 37
SCHEDULE E
. MINIMUM IMPROVEMENTS
1. A new department store to be occupied by Dayton's for which
the Redeveloper will obtain an operating covenant from
Dayton's to operate a department store for not less than 15
years.
2 . A Sears department store to be relocated to a new building
for which the Redeveloper will obtain an operating covenant
from Sears to operate a department store for not less than
15 years.
The operating covenant referred to in
paragraphs 1 and 2 will be included in the
Construction, Operation and Reciprocal
Easement Agreement between the Redeveloper
and Dayton' s and Sears respectively. The
Operating Covenant shall be subject to
condemnation and other circumstances beyond
the control of Dayton's and Sears
respectively.
3 . An increase in the total square footage of the Eden Prairie
Center from 800, 000 square feet to approximately 1, 285, 000
• square feet.
4 . A new 14-16 screen theater consolidated in one location.
5 . A relocated, new food court of approximately 10 vendors and
approximately 700 seats, clustered with the theaters in an
entertainment core.
6. Two full service restaurants which are not principally
cafeterias of not less than 4, 000 square feet for each
restaurant.
7. An ice rink of approximately 80 feet by 185 feet with
supporting facilities which include approximately 500 seats
and is designed to provide multipurpose space.
8 . An overall renovation and upgrading of the Mall.
9 . Construction of approximately 5, 000 square feet of floor
area for the City to use (the "City Space") for functions
compatible with Shopping Center uses and in accordance with
all applicable laws and the standard shopping center lease
used by the Redeveloper for this Project. Examples of
permitted uses include art center, adult education, post
office, remote city services (such as bill payment center,
• 38
distribution of information with respect to City services) .
The City Space will be leased by the Redeveloper to the
Authority or the City for a fifteen year term with one five
year renewable option. The lease for the City Space will
require that the City or Authority pay $7,500 per year which
shall be allocated by landlord (Redeveloper) to common area
or other expenses.
•
• 39
SCHEDULE F
. SITE PLAN
•
40
SCHEDULE G
SITE IMPROVEMENT COSTS
Site Improvement Costs include the following types of expenses
for the Redevelopment Property incurred by the Redeveloper:
Demolition/Site Clearance/Relocation Expenses (including the
direct and indirect costs of relocating the anchors and mall
tenants
Grading/Back Filling/Compaction of Fill including preparation of
road right-of-way
Erosion Control/Silt Fence
Paving
Retaining Walls
Soil Corrections
Landscaping and Sprinklers (per City requirements)
Testing and Environmental
Well Capping
Curb Cuts and Aprons
Interest Costs (at 100-o per annum, on all expenses
from time they are incurred)
Supervision
Contractor's Fee
Inspection Fee
Customary Overhead (limited to allowable costs)
Environmental Costs
Environmental Assessments
Environmental Work Programs
Environmental Abatement/Cleanup
Environmental Wet Lands/Biologist
Consultant's Fees
Architectural/Design Fees (Site only)
Engineering Fees (Site only)
Financial Consulting
Legal and Title for Redeveloper
Legal/Bond Counsel
Preparation or Modification of Redevelopment Plan, Tax Increment
Financing Plan, Contract for Private Redevelopment
Contingency
Flag Poles/Signage/Amenities
Fences
Tree Removal
Ponding/Storm Water Retention/Storm Sewer
Boulevard Trees/Sprinklers
Water Lines
Streets/Street Furniture/Street Amenities
Traffic Control (lights and signs)
Miscellaneous Public Right-Of-Way Costs (lighting, entry,
driveway aprons, curbs, sidewalks, boulevard, berms)
Sanitary Sewer
• 41
Acquisition Cost of the Redevelopment Property
• Code Deficiencies
The following further describes the above Site Improvement Costs
above:
Demolish existing Sears building
and portion of mall gross leasable area
Asbestos and environmental remediation
Relocation costs for mall tenants including
replacement of tenant fixtures
Relocation costs for food court including
replacement of tenant fixtures
Tenant Relocation and fixturing costs
All site preparation work including
design & engineering
New exterior monument and directional signage
Acquisition of the Redevelopment Property
Fees
•
• 42
SCHEDULE H
OPINION OF COUNSEL
$15, 000, 000.00
Taxable Limited Revenue
Tax Increment Note
(Ho Retail Properties I Limited Partnership Project)
Housing and Redevelopment Authority in and for
the City of Eden Prairie, Minnesota
Hennepin County, Minnesota
We have acted as legal counsel in connection with the issuance by
the Housing and Redevelopment Authority in and for the City of
Eden Prairie, Minnesota (the "Authority") , of its Taxable Limited
Revenue Tax Increment Note (Ho Retail Properties I Limited
Partnership Project) , originally dated as of date of delivery, in
the total principal amount of $15, 000, 000 . 00 . For the purpose of
rendering this opinion we have examined certified copies of
certain proceedings taken by the Authority and the City of Eden
Prairie, Minnesota (the "City") in the authorization, sale and
issuance of the Note, including the form of the Note, and certain
other proceedings and documents furnished by the Authority and
the City. From our examination of such proceedings and other
documents, assuming the genuineness of the signatures thereon,
• and based upon laws, regulations, rulings and decisions in effect
on the date hereof, it is our opinion that :
1. The Note is in due form, has been duly executed and
delivered, and is a valid and binding limited obligation of the
Authority, enforceable in accordance with its terms, except as
such enforcement may be limited by Minnesota or United State laws
relating to bankruptcy, reorganization, moratorium or creditors'
rights .
Dated at Minnesota, 199_.
43
SCHEDULE �
y'lal<
Minnesota Business Assistance Form*
Minnesota Department of Trade and Economic Development
.J6 r bQ y�
12.
Please type or print in dark ink.
1.Funding government agency name
2.Agency street address
3.City 4.Zip Code 5.Phone number(area code) 6.Fax number(area code)
7.Contact name 8.Type of government agency
City _County _Regional _State
_Other(Please indicate)
9.Name of TIF district(if applicable)
• 10.Name of business receiving assistance 11.Date business received assistance
11 Job creation goals for business receiving assistance 13.Hourly wage level goals for business receiving assistance
14.Actual jobs created since business received assistance 15.Actual avcragc hourly wage paid to employees hired since
business received assistance
16.Last date actual wage and job creation levels documented
*Please complete orze form for each business project your agency assisted with.525,000 or more in puhlic funds.
Please send completed form annually by March 1 to: or fax report to:
Minnesota Business Assistance Form (612)296-1290
Minnesota Department of Trade and Economic Development
500 Metro Square For information.call:
121 Fast 7thPlace (612) 297-1291 or 1-800-657-3858
St.Paul,Minnesota 55101
44