HomeMy WebLinkAbout[03] Tax Abatement Agreement - Country Manor Council Agenda Item 3
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MEETING DATE: August 29, 2016
AGENDA ITEM: Tax Abatement—Country Manor
SUBMITTED BY: Administration
BOARD/COMMISSION/COMMITTEE RECOMMENDATION: On May 16 2016 the EDA
recommended the City Council authorize the utilization of Tax Abatement for the Country Manor project.
PREVIOUS COUNCIL ACTION: One June 1, 2016 the City Council authorized execution of the
Term Sheets identifying the amount and term of Tax Abatement that would be supported after a financial
analysis.
On June 20, 2016 the City Council conducted a public hearing for the utilization of Tax Increment
Financing for the Country Manor Project. At that time it was uncertain as to whether or not the School
would participate, so Jason Aarsvold recommended the City table action on the resolution and acceptance
of the agreement until the School Board takes action.
BACKGROUND INFORMATION: District 742 has agreed to participate in the Tax Abatement;
therefore official action is required by the City.
BUDGET/FISCAL IMPACT:
ATTACHMENTS: Request for Council Action
Resolution Approving Tax Abatement
Tax Abatement Agreement
Assignment Agreement
REQUESTED COUNCIL ACTION: Authorize the Mayor and Administrator to execute Resolution
2016-046 approving the Tax Abatements, Approving Tax Abatement Agreement and Assignment and
Subordination of Tax Abatement Agreement and Authorizing the Execution thereof.
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EXTRACT OF MINUTES OF A MEETING OF THE
CITY COUNCIL OF THE CITY OF ST. JOSEPH, MINNESOTA
HELD: August 29, 2016
Pursuant to due call and notice thereof, a regular meeting of the City Council of
the City of St. Joseph, Minnesota, was duly called and held at the City Hall in St. Joseph,
Minnesota, on Monday, August 29, 2016, at 7:30 a.m.
The following members were present:
and the following were absent:
Member introduced the following resolution and
moved its adoption:
RESOLUTION APPROVING PROPERTY TAX ABATEMENTS, APPROVING TAX
ABATEMENT AGREEMENT AND ASSIGNMENT AND SUBORDINATION OF TAX
ABATEMENT AGREEMENT AND AUTHORIZING THE EXECUTION THEREOF
BE IT RESOLVED by the City Council of the City of St. Joseph, Minnesota(the
"City"), as follows:
WHEREAS, the City has been requested to provide tax abatement assistance to
CM St. Joe, LLC, a Minnesota limited liability company to finance certain costs in connection
with the acquisition, construction and equipping of an approximately 84 unit senior multifamily
housing facility consisting of 60 independent living units and 24 memory care units in the City of
St. Joseph, Minnesota(the "Project").
WHEREAS, the City proposes to use the abatement for the Project provided for in
Minnesota Statutes, Sections 469.1812 through 469.1815 (the "Abatement Law"), from the
property taxes to be levied by the City on Parcel Identification Numbers 84.53494.0200,
84.53494.0201, 84.53494.0202, 84.53494.0203 and 84.53494.0214 (the "Tax Abatement
Property") for up to a twenty (20) year period and shall apply to the taxes payable in the years
2018 through 2037, inclusive (the "Abatement").
WHEREAS, on June 20, 2016, the Council held a public hearing on the question
of the Abatement, and said hearing was preceded by at least 10 days but not more than 30 days
prior published notice thereof at which all interested persons appeared and were heard; and
WHEREAS, the abatement is authorized under Minnesota Statutes, Sections
469.1812 through 469.1815 (the "Abatement Law"); and
WHEREAS, the Developer and the City have determined to enter into a Tax
Abatement Agreement providing for the City's tax abatement assistance in connection with the
Project (the "Agreement") and in conformance with the terms of the Abatement; and
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WHEREAS, the Developer has requested that the City enter into an Assignment
and Subordination of Tax Abatement Agreement (the "Assignment") between the Developer, the
City and Minnwest Bank, a Minnesota state banking corporation (the "Lender") wherein, among
other matters, the Developer shall assign its interest in the Agreement to the Lender.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of St.
Joseph, Minnesota, as follows:
1. Findings for the Abatement. The City Council hereby makes the following
findings:
(a) The Council expects the benefits to the City of the Abatement to at least equal or
exceed the costs to the City thereof.
(b) Granting the Abatement is in the public interest because it will increase the tax
base in the City.
(c) The Property is not and will not be located in a tax increment financing district
during the Abatement period.
(d) In any year, the total amount of property taxes abated by the City by this and
other abatement resolutions, if any, shall not exceed ten percent (10%) of net tax
capacity of the City for the taxes payable year to which the abatement applies or
$200,000, whichever is greater(the "Abatement Limit"). The City may grant
other abatements permitted under the Abatement Law after the date of this
resolution, provided that to the extent the total abatements in any year exceed the
Abatement Limit the allocation of the Abatement Limit to such other abatements
is subordinate to the Abatement granted by this resolution.
2. Terms of Abatement. The Abatement is hereby approved. The terms of the
Abatement are as follows:
(a) The Abatement shall be for up to a twenty (20) year period and shall apply to the
taxes payable in the years 2018 through 2037, inclusive.
(b) The City will abate the City's share of property tax amount which the City
receives from the Property, cumulatively not to exceed $505,000.
(c) The Abatement shall be subject to all the terms and limitations of the Abatement
Law.
3. Agreement and Assignment.
(a) The City Council hereby approves the Agreement and the Assignment in
substantially the forms submitted, and the City is hereby authorized to execute the
Agreement and the Assignment.
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(b) The approval hereby given to the Agreement and the Assignment includes
approval of such additional details therein as may be necessary and appropriate
and such modifications thereof, deletions therefrom and additions thereto as may
be necessary and appropriate and approved by the City officials authorized by a
resolution of the City to execute the Agreement and the Assignment. The
execution of the Agreement and the Assignment shall be conclusive evidence of
the approval of the Agreement and the Assignment in accordance with the terms
hereof.
The motion for the adoption of the foregoing resolution was duly seconded by
Member and, after a full discussion thereof and upon vote
being taken thereon, the following voted in favor thereof:
and the following voted against the same:
Adopted on August 29, 2016 by the City Council of St. Joseph.
Mayor
Attest:
City Administrator
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STATE OF MINNESOTA
COUNTY OF STEARNS
CITY OF ST. JOSEPH
I, the undersigned, being the duly qualified and acting City Administrator of the City of
St. Joseph, Stearns County, Minnesota, DO HEREBY CERTIFY that I have compared the
attached and foregoing extract of minutes with the original thereof on file in my office, and that
the same is a full, true and complete transcript of the minutes of a meeting of the City Council of
said City, duly called and held on the date therein indicated, insofar as such minutes relate to the
approval of property tax abatements and approving and authorizing a tax abatement agreement
and assignment and subordination of tax abatement agreement.
WITNESS my hand this day of August, 2016.
City Administrator
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TAX ABATEMENT AGREEMENT
BY AND BETWEEN
CITY OF ST. JOSEPH, MINNESOTA
AND
CM ST. JOE, LLC
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..............................................................................................1
Section1.1 Definitions.........................................................................................1
ARTICLE II REPRESENTATIONS AND WARRANTIES ..............................................3
Section 2.1 Representations and Warranties of the City........................................3
Section 2.2 Representations and Warranties of the Developer ..............................3
ARTICLE III UNDERTAKINGS BY DEVELOPER AND CITY.......................................5
Section 3.1 Construction of Project; Reimbursement of Tax Abatement
Property Cost; Legal and Administrative Expenses............................5
Section 3.2 Limitations on Undertaking of the City..............................................5
Section 3.3 Damage and Destruction....................................................................5
Section 3.4 Change in Use of Project ...................................................................5
Section 3.5 Transfer the Project and Assignment of Agreement ...........................6
Section 3.6 Real Property Taxes...........................................................................6
Section 3.7 Duration of Abatement Program........................................................7
Section3.8 Subordination ....................................................................................7
ARTICLE IV EVENTS OF DEFAULT...............................................................................8
Section 4.1 Events of Default Defined..................................................................8
Section 4.2 Remedies on Default..........................................................................8
Section 4.3 No Remedy Exclusive .......................................................................8
Section 4.4 No Implied Waiver............................................................................9
Section 4.5 Agreement to Pay Attorney's Fees and Expenses...............................9
Section 4.6 Release and Indemnification Covenants.............................................9
ARTICLE V ADDITIONAL PROVISIONS....................................................................10
Section 5.1 Conflicts of Interest.........................................................................10
Section 5.2 Titles of Articles and Sections..........................................................10
Section 5.3 Notices and Demands ......................................................................10
Section5.4 Counterparts....................................................................................10
Section 5.5 Law Governing................................................................................11
Section5.6 Term................................................................................................1 l
Section 5.7 Provisions Surviving Rescission or Expiration.................................11
EXHIBIT A DESCRIPTION OF TAX ABATEMENT PROPERTY..........................A-Gl
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TAX ABATEMENT AGREEMENT
THIS AGREEMENT, made as of the 1 st day of August, 2016 ("Effective Date"), by and
among the City of St. Joseph, Minnesota (the "City"), a municipal corporation organized and
existing under the laws of the State of Minnesota, and CM St. Joe, LLC, a Minnesota limited
liability company (the "Developer").
WITNESSETH:
WHEREAS, pursuant to Minnesota Statutes, Sections 469.1812 through 469.1816, as
amended, the City has established a Tax Abatement Program; and
WHEREAS, the City believes that the development and construction of a certain Project
(as defined herein), and fulfillment of this Agreement are vital and are in the best interests of the
City, will result in preservation and enhancement of the tax base, provide employment
opportunities and are 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 being
assisted; and
WHEREAS, the requirements of the Business Subsidy Law, Minnesota Statutes, Section
116J.993 through 116J.995, do not apply to this Agreement pursuant to an exemption for
housing; and
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:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. All capitalized terms used and not otherwise defined herein
shall have the following meanings unless a different meaning clearly appears from the context:
Agreement means this Tax Abatement Agreement, as the same may be from time to time
modified, amended or supplemented;
Benefit Date means the earlier of the date the Project is completed or the date on which
the Project is placed in service;
City means the City of St. Joseph, Minnesota;
County means Stearns County, Minnesota;
Developer means CM St. Joe, LLC, a Minnesota limited liability company, its successors
and assigns;
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Event of Default means any of the events described in Section 4.1;
Legal and Administrative Expenses means the fees or expenses incurred by the City in
connection with the preparation of this Agreement and the establishment of the Tax Abatement
Program;
Project means the acquisition, construction and equipping by the Developer of an
approximately 84 unit senior multifamily housing facility consisting of 60 independent living
units and 24 memory care units to be located on the Tax Abatement Property;
State means the State of Minnesota;
Tax Abatement Act means Minnesota Statutes, Sections 469.1812 through 469.1816, as
amended;
Tax Abatement Program means the actions by the City pursuant to Minnesota Statutes,
Section 469.1812 through 469.1816, as amended, and undertaken in support of the Project;
Tax Abatement Property means the real property described on Exhibit A attached hereto;
Tax Abatements means 75% of the City's share of real estate taxes which relate to the
construction of the Project or the Tax Abatement Property and not the real estate taxes on the
Tax Abatement Property that relate to the value of the land as determined by the City, abated in
accordance with the Tax Abatement Program;
Term means the period in which this Agreement shall remain in effect, commencing on
the Effective Date and continuing until the earlier of (i) the date the Developer receives the
Reimbursement Amount (as defined herein), or (ii) February 1, 2038, unless earlier terminated or
rescinded in accordance with the terms contained herein;
Unavoidable Delays means delays, outside the control of the party claiming its
occurrence, including strikes, other labor troubles, unusually severe or prolonged bad weather,
acts of God, fire or other casualty to the Project, litigation commenced by third parties which, by
injunction or other similar judicial action or by the exercise of reasonable discretion, directly
results in delays, or acts of any federal, state or local governmental unit (other than the City, the
County or the School District) which directly result in delays.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the City. The City makes the following
representations and warranties:
(1) The City is a municipal corporation and political subdivision of the State and has
the power to enter into this Agreement and carry out its obligations hereunder.
(2) The Tax Abatement Program was created, adopted and approved in accordance
with the terms of the Tax Abatement Act.
(3) To finance the costs of the Project to be undertaken by the Developer, the City
proposes, subject to the further provisions of this Agreement, to apply the Tax Abatements to
reimburse the Developer for a portion of the costs of the Project as further provided in this
Agreement.
(4) The City has made the findings required by the Tax Abatement Act for the Tax
Abatement Program.
Section 2.2 Representations and Warranties of the Developer. The Developer makes the
following representations and warranties:
(1) The Developer has the power to enter into this Agreement and to perform its
obligations hereunder and is not in violation of its organizational documents, member control
agreement or any local, state or federal laws.
(2) The Developer is a Minnesota limited liability company, duly organized, existing
and in good standing under the laws of the State and has the power to enter into this Agreement
and to perform its obligations hereunder and carry out the covenants contained herein.
(3) The Developer will cause the Project to be constructed in accordance with the
terms of this Agreement and all City, County, state and federal laws and regulations (including,
but not limited to, environmental, zoning, energy conservation, building code and public health
laws and regulations), including the Americans With Disabilities Act.
(4) The Developer will obtain or cause to be obtained, in a timely manner, all
required permits, licenses and approvals, and will 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 Project may be lawfully constructed.
(5) The construction of the Project would not be undertaken by the Developer, and in
the opinion of the Developer would not be economically feasible within the reasonably
foreseeable future, without the assistance and benefit to the Developer provided for in this
Agreement.
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(6) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of,
the terms, conditions or provisions of any contractual restriction, evidence of indebtedness,
agreement 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.
(7) The Developer will cooperate fully with the City with respect to any litigation
commenced with respect to the Project.
(8) The Developer will cooperate fully with the City in resolution of any traffic,
parking, trash removal or public safety problems which may arise in connection with the
construction and operation of the Project.
(9) The construction of the Project shall commence no later than September 1, 2016
and barring Unavoidable Delays, will be substantially completed by November 1, 2017.
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ARTICLE III
UNDERTAKINGS BY DEVELOPER AND CITY
Section 3.1 Construction of Project; Reimbursement of Tax Abatement Property Cost;
Legal and Administrative Expenses.
(1) The Developer agrees that it will construct the Project by November 1, 2017, in
accordance with the terms of this Agreement and in compliance with all local, state and federal
laws and regulations (including, but not limited to, environmental, zoning, energy conservation,
building code and public health laws and regulations). The Developer will obtain or cause to be
obtained, in a timely manner (subject to factors outside the control of Developer), all required
permits, licenses and approvals, and will 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
Project may be lawfully constructed. The Developer will, at all times prior to the termination of
this Agreement, operate and maintain, preserve and keep the Project or cause the Project to be
maintained, preserved and kept with the appurtenances and every part and parcel thereof, in good
repair and condition, ordinary wear and tear excepted.
(2) Upon submission to the City of invoices relating to the cost of the construction of
the Project in an amount not less than $505,000 (the "Reimbursement Amount"), the City shall
reimburse the Developer for such costs pursuant to the Abatement Program as provided in
Section 3.7.
(3) The Developer shall reimburse the City for its actual out of pocket Legal and
Administrative Expenses.
Section 3.2 Limitations on Undertaking of the City. Notwithstanding the provisions of
Section 3.1, the City shall have no obligation to the Developer, under this Agreement, to
reimburse the Developer for a portion of the construction of the Project, if the City, at the time or
times such payment is to be made, is entitled under Section 4.2 to exercise any of the remedies
set forth therein as a result of an Event of Default which has not been cured. Notwithstanding
any other provisions of the Agreement, the City shall have no obligation to the Developer under
this Agreement to reimburse the Developer for the construction of the Project in an amount
greater than $505,000.
Section 3.3 Damage and Destruction. In the event of damage or destruction of the
Project that (i) Developer chooses not to repair or rebuild, or (ii) Developer does not commence
and diligently pursue such repair or rebuilding within one hundred eighty (180) days after such
event of damage or destruction, City may, with written notice to Developer, terminate this
Agreement and discontinue such Tax Abatement Program for the Project as of the date of such
event of damage or destruction.
Section 3.4 Change in Use of Project. The City's obligations pursuant to this Agreement
shall be subject to the continued operation of the Project by the Developer, or any successors or
assigns of Developer approved by City as set forth in Section 3.5 below, during the Term.
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Section 3.5 Transfer the Project and Assignment of Agreement. The Developer
represents and agrees that prior to the expiration or earlier termination of this Agreement the
Developer shall not assign this Agreement in conjunction with a transfer of the Project or any
part thereof or any interest therein, without the prior written approval of the City, which approval
shall not be unreasonably withheld, conditioned or delayed. The City shall be entitled to require
as conditions to any such approval that:
(1) Any proposed transferee shall have the qualifications and financial responsibility,
in the reasonable judgment of the City, necessary and adequate to fulfill the obligations
undertaken in this Agreement by the Developer.
(2) Any proposed transferee, by instrument in writing reasonably satisfactory to the
City shall, for itself and its successors and assigns, and expressly for the benefit of the City, have
expressly assumed all of the obligations of the Developer under this Agreement and agreed to be
subject to all the conditions and restrictions to which the Developer is subject.
The City shall provide Developer with written approval or denial within thirty (30) days
of Developer's request therefor. In the event of a transfer of the Project to a transferee approved
by City, Developer shall be released from liability hereunder after the date of such transfer, and
City shall look solely to such transferee to fulfill the obligation of Developer hereunder.
Section 3.6 Real Property Taxes. The Developer shall, so long as this Agreement
remains in effect, pay all real property taxes with respect to all parts of the Tax Abatement
Property owned by it which are payable pursuant to any statutory or contractual duty that shall
accrue until title to the property is vested in another person. The Developer agrees that for tax
assessments so long as this Agreement remains in effect:
(a) It will not challenge the market value of the Tax Abatement Property with
any governmental entities.
(b) It will not seek administrative review or judicial review of the
applicability of any tax statute relating to the ad valorem property taxation of real
property contained on the Tax Abatement 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 proceedings with respect to the Tax Abatement Property,
including delinquent tax proceedings; provided, however, "tax statute" does not include
any local ordinance or resolution levying a tax;
(c) 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 Tax Abatement Property determined by any tax official to be applicable to the Project
or the Developer or raise the unconstitutionality of any such tax statute as a defense in
any proceedings, including delinquent tax proceedings with respect to the Tax Abatement
Property; provided, however, "tax statute" does not include any local ordinance or
resolution levying a tax;
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(d) 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 ad valorem property taxation of the Tax Abatement Property so long
as this Agreement remains in effect.
Section 3.7 Duration of Abatement Program. The Tax Abatement Program shall exist
for a period of up to twenty (20) years beginning with real estate taxes payable in 2018 through
2037. On or before February 1 and August 1 of each year commencing August 1, 2018 until the
earlier of the date that the Developer shall have received the Reimbursement Amount or
February 1, 2038 the City shall pay the Developer the amount of the Tax Abatements received
by the City in the previous six month period. The City may terminate the Tax Abatement
Program and this Agreement at an earlier date if an Event of Default occurs and is not cured as
provided herein and the City rescinds or cancels this Agreement as more fully set forth in Article
IV herein.
Section 3.8 Subordination. The City agrees to subordinate its rights under this
Agreement to the holder of any mortgage securing construction or permanent financing of the
Project or the Tax Abatement Property and the City shall consent to such subordination and
assignment of this Agreement as collateral for such loan in accordance with the terms of an
assignment and subordination agreement mutually acceptable to the City and such mortgage
holder.
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ARTICLE IV
EVENTS OF DEFAULT
Section 4.1 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 following events:
(1) Failure by the Developer to timely pay any ad valorem real property taxes, special
assessments, utility charges or other governmental impositions with respect to the Project.
(2) Failure by the Developer to cause the construction of the Project to be completed
pursuant to the terms, conditions and limitations of this Agreement.
(3) Failure by the Developer to observe or perform any other covenant, condition,
obligation or agreement on its part to be observed or performed under this Agreement.
(4) The holder of any mortgage on the Tax Abatement Property or any improvements
thereon, or any portion thereof, commences foreclosure proceedings as a result of any default
under the applicable mortgage documents.
Section 4.2 Remedies on Default. Whenever any Event of Default referred to in Section
4.1 occurs and is continuing, the City, as specified below, may take any one or more of the
following actions after the giving of thirty (30) days' written notice to the Developer citing with
specificity the item or items of default and notifying the Developer that it has thirty (30) days
within which to cure said Event of Default (or commence and diligently pursue such Event of
Default if Developer is unable to cure within such thirty (30) day period and Developer is
diligently pursuing and can demonstrate progress toward curing the default). If the Developer is
unable to cure or commence a cure for the Event of Default within said thirty (30) days as
required above:
(a) The City may suspend its performance under this Agreement until it
receives assurances from the Developer, deemed adequate by the City, that the Developer
will cure its default and continue its performance under this Agreement.
(b) The City may cancel and rescind this Agreement.
(c) The City may take any action, including legal or administrative action, in
law or equity, which may appear necessary or desirable to enforce performance and
observance of any obligation, agreement, or covenant of the Developer under this
Agreement.
Section 4.3 No Remedy Exclusive. No remedy herein conferred upon or reserved to the
City is intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such right or power or
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shall be construed to be a waiver thereof but any such right and power may be exercised from
time to time and as often as may be deemed expedient.
Section 4.4 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by the other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any other concurrent,
previous or subsequent breach hereunder.
Section 4.5 Agreement to Pay Attorney's Fees and Expenses. Whenever any Event of
Default occurs and the 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 agrees that
they shall, on demand herefore, pay to the City the reasonable fees of such attorneys and such
other expenses so incurred by the City.
Section 4.6 Release and Indemnification Covenants.
(1) The Developer releases from and covenants and agrees that the City and its
governing body members, officers, agents, servants and employees shall not be liable for and
agrees to indemnify and hold harmless the City and its governing body members, officers,
agents, servants, and employees 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 Project.
(2) Except for any willful misrepresentation or any willful or wanton misconduct of
the following named parties, the Developer agrees to protect and defend the City and its
governing body members, officers, agents, servants and employees, now or forever, and further
agrees to hold the aforesaid harmless from any claim, demand, action or other proceeding
whatsoever by any person or entity whatsoever arising or purportedly arising from a breach of
the obligations of the Developer under this Agreement, or the transactions contemplated hereby
or the acquisition, construction, ownership, maintenance and operation of the Project.
(3) The City and its governing body members, officers, agents, servants and
employees shall not be liable for any damages 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 negligence of any person.
(4) All covenants, stipulations, promises, agreements and obligations of the City
contained herein shall be deemed to be the covenants, stipulations, promises, agreements and
obligations of the City and not of any governing body member, officer, agent, servant or
employee of the City in the individual capacity thereof.
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ARTICLE V
ADDITIONAL PROVISIONS
Section 5.1 Conflicts of Interest. No member of the governing body or other official of
the City shall participate in any decision relating to this 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 shall be
personally liable to the 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 5.2 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 5.3 Notices and Demands. Except as otherwise expressly provided in this
Agreement, a notice, demand or other communication under this Agreement by any party to any
other shall be sufficiently given or delivered if it is dispatched by registered or certified mail,
postage prepaid, return receipt requested, or delivered personally, and
(1) in the case of the Developer is addressed to or delivered personally to:
CM St. Joe, LLC
10 8th Avenue North
Sartell, MN 56377
(2) in the case of the City is addressed to or delivered personally to the City at:
City of St. Joseph
St. Joseph City Hall
25 College Avenue North
P.O. Box 668
St. Joseph, MN 56374
(3) with a copy addressed to or delivered personally to:
Mary L. Ippel
Briggs and Morgan, P.A.
2200 IDS Center
80 South 8th Street
Minneapolis, Minnesota 55402
or at such other address with respect to any such party as that party may, from time to time,
designate in writing and forward to the other, as provided in this Section.
Section 5.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
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Section 5.5 Law Governing. This Agreement will be governed and construed in
accordance with the laws of the State of Minnesota.
Section 5.6 Term. This Agreement shall remain in effect commencing on the Effective
Date until the earlier of(i) the date the Developer receives the Reimbursement Amount, or (ii)
February 1, 2038, unless earlier terminated or rescinded in accordance with its terms.
Section 5.7 Provisions Surviving Rescission or Expiration. Sections 4.5 and 4.6 shall
survive any rescission, termination or expiration of this Agreement with respect to or arising out
of any event, occurrence or circumstance existing prior to the date thereof.
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IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its
name and on its behalf, and the Developer has caused this Agreement to be duly executed in its
name and on its behalf, on or as of the date first above written.
CM ST. JOE, LLC, a Minnesota limited
liability company
By:
Its:
By:
Its:
This is a signature page to the Tax Abatement and Business Subsidy Agreement by and between
the City of St. Joseph, Minnesota and CM St. Joe, LLC
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CITY OF ST. JOSEPH, MINNESOTA
By
Its Mayor
By
Its Administrator-Clerk
This is a signature page to the Tax Abatement and Business Subsidy Agreement by and between
the City of St. Joseph, Minnesota and CM St. Joe, LLC
S-2
7813498x2
EXHIBIT A
DESCRIPTION OF TAX ABATEMENT PROPERTY
Parcel Identification Number:
84.53494.0200
84.53494.0201
84.53494.0202
84.53494.0203
84.53494.0214
A-I
7813498x2
ASSIGNMENT AND SUBORDINATION OF
TAX ABATEMENT AGREEMENT
THIS ASSIGNMENT AND SUBORDINATION OF TAX ABATEMENT
AGREEMENT (this "Agreement") is made and entered into as of August , 2016 (the
"Effective Date") by and between CM St. Joe, LLC, a Minnesota limited liability company
("Borrower"), Minnwest Bank, a Minnesota state banking corporation (the "Lender"), and the
City of St. Joseph, a Minnesota municipal corporation duly organized and existing under the
laws of the State of Minnesota(the "City").
RECITALS
A. The Borrower is the owner of certain real property situated in Stearns County,
Minnesota and legally described in Exhibit A attached hereto and incorporated herein (the
"Property").
B. The Borrower and the City have entered into a Tax Abatement Agreement dated
August , 2016 (the "Tax Abatement Agreement")providing for the improvement of the
Property described therein (the "Project"), in which the Borrower is entitled to certain
reimbursements from the City using tax abatement as provided in the Tax Abatement Agreement
(the "Reimbursements"), and the City is the owner and holder of certain rights under the Tax
Abatement Agreement.
C. In order to finance the Project, the Lender has agreed to extend a loan in the
principal amount of up to $15,000,000.00 (the "Loan") to the Borrower pursuant to the terms of
that certain Loan Agreement dated of even date herewith (the "Loan Agreement"). In
accordance with the Loan Agreement, the Borrower executed and delivered to the Lender a
Promissory Note, of even date with the Loan Agreement, in the original principal amount of up
to $15,000,000.00 (the "Note").
D. The obligations of the Borrower under the Note and the Loan Agreement are
secured by a Combination Mortgage, Security Agreement, Fixture Financing Statement and
Assignment of Rents and Leases of even date with the Loan Agreement (the "Mortgage"), and
by a Security Agreement of even date with the Loan Agreement (the "Security Agreement").
The Loan Agreement, the Note, the Mortgage, the Security Agreement, and all other documents
[16261-0094/2345621/1] I
and instruments evidencing, securing and executed in connection with the Loan, are hereinafter
collectively referred to as the "Loan Documents."
E. As a condition to making the Loan and in order to secure performance by the
Borrower of its obligations under the Note and the Loan Agreement, the Lender requires and the
Borrower has agreed to make a collateral assignment to Lender of all of the Borrower's right,
title and interest in and to the Tax Abatement Agreement, including, without limitation, all rights
to the Reimbursements.
F. As a condition to making the Loan, the Lender also requires and the City has
agreed to that the rights of the City with respect to the Property under the Tax Abatement
Agreement are and shall remain subordinate and subject to liens, rights and security interests
created by the Loan Documents.
In consideration of the foregoing recitals, and as an inducement to Lender to make the
Loan, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto represent, warrant and agree as follows:
1. Collateral Assignment of Tax Abatement Agreement, Reimbursements. As
additional security for performance by the Borrower of its obligations under the Note and the
Loan Agreement, the Borrower bargains, sells, assigns and sets over unto the Lender, for so long
as any indebtedness pursuant to the Loan Agreement shall remain outstanding, all of the
Borrower's right, title and interest in and to the Tax Abatement Agreement, including, but not
limited to, the Reimbursements payable thereunder. This Agreement shall constitute a perfected,
absolute and present assignment, provided that Lender shall have no right under this Agreement
to enforce the provisions of said Tax Abatement Agreement until the occurrence of an Event of
Default as defined in the Loan Agreement or under any related instrument, document, or
agreement, including, without limitation, the Note. Upon the occurrence of any such default,
Lender may, without affecting any of its rights or remedies against Borrower under any other
instrument, document or agreement, exercise its rights under this Agreement as Borrower's
attorney-in-fact in any manner permitted by law, and in addition, Lender shall have and possess,
without limitation, any and all rights and remedies of a secured party under the Minnesota
Uniform Commercial Code or otherwise provided by law. For purposes of exercising any
available rights and remedies of a secured party, ten (10) days written notice shall constitute
commercially reasonable notice where such is required by the Minnesota Uniform Commercial
Code.
2. Subordination. The City agrees that the rights of the City with respect to the
Property under the Tax Abatement Agreement are and shall remain subordinate and subject to
liens, rights and security interests created by the Loan Documents and to any and all
amendments, modifications, extensions, replacements or renewals of the Loan Documents;
provided, however, that nothing herein shall be construed as subordinating the requirement
contained in the Tax Abatement Agreement that the Property be used in accordance with the Tax
Abatement Agreement, or as subordinating the City's rights under the Tax Abatement
Agreement to suspend payments in accordance with the Tax Abatement Agreement.
[16261-0094/2345621/1] 2
3. Consent to Assignment and Subordination. The City acknowledges that the
Lender is making the Loan to the Borrower and consents to the same. The City also consents to
and approves the assignment and subordination of the Tax Abatement Agreement. The Borrower
and the City, by executing this Agreement, agree that the Lender does not assume any of the
obligations or duties of the Borrower under or with respect to the Tax Abatement Agreement
unless and until the Lender shall have given to the City written notice that it has affirmatively
exercised its right to exercise the collateral assignment effected by this Agreement and to assume
performance under the Tax Abatement Agreement. Notwithstanding the foregoing, the Lender
may, without assuming performance of the Tax Abatement Agreement, request and receive from
the City the Reimbursements payable or which become payable under the Tax Abatement
Agreement, in accordance with the following paragraph.
4. Collection and Payment. The Borrower authorizes and directs the City to pay all
Reimbursements directly to the Lender following City's receipt of written notice from the Lender
that an Event of Default has occurred under the Loan Agreement. The City has no duty to verify
the existence of said default(s) and shall rely upon Lender's notice alone to establish that an
Event of Default has occurred enabling Lender to receive the Reimbursements directly from the
City. The Lender may request and receive said Reimbursements without assuming performance
of the Tax Abatement Agreement, it being understood by the parties that in any event
Reimbursements shall only be payable by the City in accordance with the terms and conditions
of the Tax Abatement Agreement. Unless and until the City receives said notice of default from
the Lender, the City shall pay Reimbursements to the Borrower in accordance with the terms of
the Tax Abatement Agreement.
5. Continuing Authorization; Indemnification. The authorization to the City
contained in this Agreement, including paragraphs 3 and 4, above, is absolute and irrevocable.
The Borrower indemnifies and holds the City harmless from and against any claims or liabilities
arising or purporting to arise from the City's performance of its obligations under this
Agreement.
6. Cure of Events of Default. Upon learning of the occurrence of any Event of
Default, as defined under Section 4.1 of the Tax Abatement Agreement, by the Borrower under
the Tax Abatement Agreement, the City shall give the Borrower and the Lender notice thereof,
and if such Event of Default is not cured by the Borrower or the Lender within the cure grace
periods specified in the Tax Abatement Agreement, and the default cannot reasonably be cured
by the Lender within the specified cure period, and the Lender is diligently prosecuting such
cure, then the Lender shall have an additional cure period, reasonably satisfactory to the City, but
in no event to exceed one hundred eighty (180) days. The City shall accept any cure of a default
by the Lender as performance by the Borrower under the Tax Abatement Agreement. The
Borrower agrees that any monies advanced by the Lender in furtherance of any cure under the
Tax Abatement Agreement shall be an additional amount secured by and payable under the Note
and Mortgage given by the Borrower to the Lender. No Event of Default under the Tax
Abatement Agreement shall constitute a condition extinguishing or limiting the City's payment
of Reimbursements so long as the Lender is diligently proceeding in a manner reasonably
satisfactory to the City to cure such Event of Default and such cure is effected within a period of
one hundred eighty (180) days after the expiration of the grace periods specified in the Tax
[16261-0094/2345621/1] 3
Abatement Agreement for cure by the Borrower In the event a cure is not effected within the
additional 180 day cure period for Lender and the City has made payments of the
Reimbursements to Lender during a cure period, then the Lender shall repay to the City any
Reimbursements made during the cure period.
7. Miscellaneous Provisions. The following miscellaneous provisions are a part of
this Agreement:
(a) Accuracy of Recitals. The recitals set forth at the beginning of this Agreement are
deemed incorporated herein, and the parties represent they are true and correct.
(b) Caption Headings. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions of this
Agreement.
(c) Amendments. This Agreement may not be amended or modified except in a
writing executed by all parties.
(d) Counterparts. It is understood and agreed that this Agreement may be executed in
several counterparts, each of which shall, for all purposes, be deemed an original,
and all of such counterparts, taken together, shall constitute one and the same
Agreement, even though all of the parties may not have executed the same
counterpart of this Agreement.
(e) Choice of Law, Severability. This Agreement is made in the State of Minnesota
and shall be construed in accordance with the laws thereof. If any provision
hereof is in conflict with any statute or rule of law of the State of Minnesota and
is otherwise unenforceable, such provisions shall be deemed null and void only to
the extent of such conflict or unenforceability, and shall be deemed separate from
and shall not invalidate any other provision of this Agreement.
(f) Time is of the Essence. Time is of the essence in the performance of this
Agreement.
(g) Notices. All notices required to be given under this Agreement shall be given in
writing and shall be effective when actually delivered or when deposited in the
United States mail, first class, postage prepaid, addressed to the party to whom the
notice is to be given at the address shown below:
City: City of St. Joseph, Minnesota
25 College Avenue North
PO Box 668
St. Joseph, MN 56374
Lender: Minnwest Bank
3130 Second Street South
[16261-0094/2345621/1] 4
P.O. Box 7429
St. Cloud, MN 56302
Borrower: CM St. Joe, LLC
Attn: Mitchell J. Rengel
10 —8th Avenue South
Sartell, Minnesota 56377
Any party may change its address for notices under this Agreement by giving
formal written notice to the other parties, specifying that the purpose of the notice
is to change the party's address.
(h) Transfer of Title to Lender. The City agrees that in the event the Lender, a
transferee of Lender, or a purchaser at foreclosure sale, acquires title to the
Property pursuant to a foreclosure, or a deed in lieu thereof, the Lender,
transferee, or purchaser shall not be bound by the terms and conditions of the Tax
Abatement Agreement except as expressly herein provided. Further the City
agrees that in the event the Lender, a transferee of Lender, or a purchaser at
foreclosure sale acquires title to the Property pursuant to a foreclosure sale or a
deed in lieu thereof, then the Lender, transferee, or purchaser shall be entitled to
all rights conferred upon the Borrower under the Tax Abatement Agreement,
provided that no condition of default exists and remains uncured beyond
applicable cure periods in the obligations of the Borrower under the Tax
Abatement Agreement.
(i) Estoppel. The City represents and warrants to Lender, for the purpose of inducing
Lender to make advances to Developer under the Loan Documents that: (x) No
default or event of default by Developer exists under the terms of the Tax
Abatement Agreement on the date hereof, and (y) The Tax Abatement Agreement
has not been amended or modified in any respect, nor has any material provision
thereof been waived by either the City or the Developer, and the Tax Abatement
Agreement is in full force and effect.
(j) Amendments. This Agreement constitutes the entire understanding and agreement
of the parties as to the matters set forth in this Agreement. No alteration of or
amendment to this Agreement shall be effective unless given in writing and
signed by the party or parties sought to be charged or bound by the alteration or
amendment.
(k) Successors and Assigns. This Agreement shall bind upon and inure to the benefit
of the Borrower, the Lender, and the City and their respective successors and
assigns, including any person who acquires title to the Property through the
Lender of a foreclosure of the Mortgage.
[Signature Page Followsl
[16261-0094/2345621/1] 5
SIGNATURE PAGE TO
ASSIGNMENT AND SUBORDINATION OF TAX ABATEMENT AGREEMENT
The Borrower has executed this Agreement as of the Effective Date.
BORROWER:
CM St. Joe, LLC
By
Mitchell J. Rengel
Its Manager
By
Corey Gerads
Its Manager
STATE OF MINNESOTA )
SS
COUNTY OF STEARNS )
On this day of August, 2016, before me, a Notary Public for this County,
personally appeared Mitchell J. Rengel, who, being by me duly sworn, did say that he is the
Manager of CM St. Joe, LLC, a Minnesota limited liability company, and that this instrument
was signed on behalf of said limited liability company by authority of its Members and
acknowledged said instrument to be the free act and deed of said limited liability company.
Notary Public
STATE OF MINNESOTA )
) SS
COUNTY OF STEARNS )
On this day of August, 2016, before me, a Notary Public for this County,
personally appeared Corey Gerads, who, being by me duly sworn, did say that he is the Manager
of CM St. Joe, LLC, a Minnesota limited liability company, and that this instrument was signed
on behalf of said limited liability company by authority of its Members and acknowledged said
instrument to be the free act and deed of said limited liability company.
Notary Public
[16261-0094/2345621/1] S-1
SIGNATURE PAGE TO
ASSIGNMENT AND SUBORDINATION OF TAX ABATEMENT AGREEMENT
The Lender has executed this Agreement as of the Effective Date.
LENDER:
Minnwest Bank
By
Gregory Hohlen
Its Senior Vice President
STATE OF MINNESOTA )
SS
COUNTY OF STEARNS )
On this day of August, 2016, before me, a Notary Public for this County,
personally appeared Gregory Hohlen, who, being by me duly sworn, did say that d is the Senior
President for Minnwest Bank, and that this instrument was signed on behalf of said Bank by the
above-named officer acknowledging said instrument to be its free act and deed.
Notary Public
[16261-0094/2345621/1] S-2
ACKNOWLEDGMENT,CONSENT AND AGREEMENT OF CITY
(Assignment and Subordination of Tax Abatement Agreement)
The City of St. Joseph,Minnesota(the"City")acknowledges the above Assignment and
Subordinating of Tax Abatement Agreement, consents to such assignment and subordination to the Lender,
and agrees to be bound by the above Agreement and to comply with the Lender's instructions with respect to
the payments of Reimbursements under the Tax Abatement Agreement, and with respect to other performance
required by it under the terms of the Tax Abatement Agreement. In particular, and without limiting the
generality of the foregoing,the City acknowledges and agrees that the assignment and subordination effected
by the above is approved by the City and is made in full compliance with the provisions of the Tax Abatement
Agreement.
The City represents and warrants to the Lender that the Tax Abatement Agreement is a valid
agreement, enforceable as against the City.
The City has caused this Agreement to be duly executed in its name and on its behalf, effective as of
August 2016.
CITY: CITY:
CITY OF ST. JOSEPH,MINNESOTA CITY OF ST. JOSEPH,MINNESOTA
By By
Its Mayor Its City Administrator
STATE OF MINNESOTA )
SS
COUNTY OF STEARNS )
On this day of 2016,before me, a Notary Public for this County,personally
appeared who,being by me duly sworn, did say that he/she is the Mayor of the City of
St. Joseph, a Minnesota municipal corporation, and that this instrument was signed on behalf of said
corporation by authority of its City Council and acknowledged said instrument to be the free act and deed of
said corporation.
Notary Public
STATE OF MINNESOTA )
SS
COUNTY OF STEARNS )
On this day of ,2016,before me, a Notary Public for this County,personally
appeared who,being by me duly sworn, did say that he/she is the City Administrator of
the City of St. Joseph, a Minnesota municipal corporation, and that this instrument was signed on behalf of
said corporation by authority of its City Council and acknowledged said instrument to be the free act and deed
of said corporation.
Notary Public
[16261-0094/2345621/1] S-3
EXHIBIT A
(Legal Description of Property)
Lot 1, Block l; Lot 1, Block 2; Lots 1 through 12, Block 3; and Outlots A through G, Country
Manor Senior Living Campus, Stearns County, Minnesota
[16261-0094/2345621/1] A-1
ASSIGNMENT AND SUBORDINATION OF DEVELOPMENT AGREEMENT
THIS ASSIGNMENT AND SUBORDINATION OF DEVELOPMENT
AGREEMENT (this "Agreement") is made and entered into as of August , 2016 (the
"Effective Date") by and between CM St. Joe, LLC, a Minnesota limited liability company
("Borrower"), Minnwest Bank, a Minnesota state banking corporation (the "Lender"), and the
City of St. Joseph, a Minnesota municipal corporation duly organized and existing under the
laws of the State of Minnesota(the "City").
RECITALS
A. The Borrower and the City entered into Country Manor Senior Living Campus
Developer Agreement City of St. Joseph, Minnesota dated effective August , 2016, (the
"Development Agreement") which contains certain rights, duties and obligations relating to the
development of the real property, legally described as attached Exhibit A (the "Development
Property"), into a 60-unit senior independent living facility and 24-unit memory care facility
and related improvements (the "Project")
B. In order to finance the Project, the Lender has agreed to extend a loan to Borrower
in the original principal amount of up to $15,000,000.00 (the "Loan")pursuant to the terms and
conditions of that certain Loan Agreement dated of even date herewith (the "Loan Agreement").
In accordance with the Loan Agreement, the Borrower executed and delivered to the Lender a
Note, of even date with the Loan Agreement, in the original principal amount of up to
$15,000,000.00 (the "Note").
C. The obligations of the Borrower under the Note and the Loan Agreement are
secured, among other things, by a Combination Mortgage, Security Agreement, Fixture
Financing Statement and Assignment of Rents and Leases of even date with the Loan Agreement
(the "Mortgage"), and by a Security Agreement of even date with the Loan Agreement (the
"Security Agreement"). The Loan Agreement, the Note, the Mortgage, the Security Agreement,
and all other documents and instruments evidencing, securing and executed in connection with
the Loan, are hereinafter collectively referred to as the "Loan Documents."
D. As a condition to making the Loan and in order to secure performance by the
Borrower of its obligations under the Note and the Loan Agreement, the Lender requires and the
[16261-0094/2408871/1] I
Borrower has agreed to make a collateral assignment to Lender of all of the Borrower's right,
title and interest in and to the Development Agreement.
E. As condition to making the Loan to Borrower, Lender requires the City to enter
into this Agreement.
F. City acknowledges and agrees that Borrower requires the proceeds of the Loan in
order to finance the development of the Project and to perform certain obligations under the
Development Agreement, and it is intended that the Loans, the corresponding Loan Documents,
and other documents referred to herein and the liens created thereby shall have a certain order of
priority.
In consideration of good and valuable consideration, and in order to induce Lender to
make the Loan to Borrower, the parties agree as follows:
1. Defined Terms. Unless otherwise defined, each capitalized term not defined herein shall
have the meaning set forth in the Loan Documents.
2. Subordination. City agrees that City's interest in the Project, including but not limited to
City's interest in or pursuant to the Development Agreement, the obligations of Borrower to City
contained therein, and the rights and liens of City contained therein, are and shall remain
subordinate and subject to the lien of the Mortgage and the other Loan Documents, and any
amendments modifications and replacements thereto, notwithstanding the order of recording or
any other priority requirements which may otherwise exist. City agrees that, unless Lender or its
successors or assigns expressly agree in writing to assume and perform Borrower's obligations
under the Development Agreement, neither the Development Agreement nor any provision
thereof, shall be a personal obligation of Lender or its successors or assigns. In the event Lender
or its respective successors or assigns assume in writing any of the obligations of Borrower
under the Development Agreement, Lender shall nonetheless not be liable for any then existing
defaults of the Borrower, any misrepresentations of the Borrower, or any breaches of any
covenant, agreement or indemnification of the Borrower which occurred prior to the date on
which Lender or such successor or assign acquires title to the Project. Notwithstanding the
foregoing, the City shall continue to have the ability to exercise its rights pursuant to Section
12.0 of the Development Agreement in the event of default thereunder.
3. Improvements. Neither Lender nor its Successors or assigns shall be obligated to
construct or complete any improvements on the Project. In the event that Lender, or is successors
or assigns, acquires any portion of the Project by foreclosure or deed in lieu of foreclosure, the
City acknowledges and agrees that, upon substantial completion of the related portion of any
improvements, Lender shall be entitled to seek from City a certificate of completion for such
completed portion of the improvements.
4. No Assumption. The Authority and the City acknowledge that the Lender is not a party
to the Agreement or the Development Agreement and by executing this Agreement does not
become a party to the Agreement or the Development Agreement, and specifically does not
[16261-0094/2408871/1] 2
assume and shall not be bound by any obligations of the Developer to the Authority or the City
under the Agreement or the Development Agreement, and that the Lender shall incur no
obligations whatsoever to the Authority or the City except as expressly provided herein.
5. Collateral Assignment of Development Agreement. As additional security for
performance by the Borrower of its obligations under the Loan Agreement and the Note, the
Borrower assigns to the Lender, for so long as any indebtedness pursuant to the Loan Agreement
or the Note shall remain outstanding, all of the Borrower's right, title and interest in and to the
Development Agreement. This Agreement shall constitute a perfected, absolute and present
assignment, provided that Lender shall have no right under this Agreement to enforce the
provisions of the Development Agreement until the occurrence of an Event of Default as defined
in the Loan Agreement, the Note or any of the Loan Documents. Upon the occurrence of any
such default, Lender may, without affecting any of its rights or remedies against Borrower under
any other instrument, document or agreement including any of the Loan Documents, exercise its
rights under this Agreement as Borrower's attorney-in-fact in any manner permitted by law, and
in addition, Lender shall have and possess, without limitation, any and all rights and remedies of
a secured party under the Minnesota Uniform Commercial Code or otherwise provided by law.
For purposes of exercising any available rights and remedies of a secured party, ten (10) days
written notice shall constitute commercially reasonable notice where such is required by the
Minnesota Uniform Commercial Code.
6. Continuing Authorization; Indemnification. The Lender does not assume any of the
obligations or duties of the Borrower under and with respect to the Development Agreement
unless and until the Lender shall have given the Borrower written notice that it has affirmatively
exercised its right to complete or cause the completion of the Project following the occurrence of
an Event of Default under the Loan Agreement, the Note or the Loan Documents. If the Lender
does not personally undertake to complete the Project, the Lender shall have no liability
whatsoever for the performance of any of such obligations or duties of the Borrower. For the
purpose of completing the Project, the Lender may, in its absolute discretion, reassign its right,
title and interest in the Development Agreement (to the extent permitted under the Development
Agreement) and upon any notice to the City required by such Development Agreement and
without Borrower's consent. The Borrower's authorization to the Lender contained in this
Agreement is absolute and irrevocable. The Borrower indemnifies and holds the Lender harmless
from and against any claims or liabilities arising or purporting to arise from the Borrower's or
Lender's performance of any obligations under this Agreement. No provision of this Agreement
shall be deemed or construed to alter, amend or modify, in any way, the rights and obligations of
the City or the Borrower contained in the Development Agreement.
7. Borrower's Representations. The Borrower represents and warrants that there has been
no prior assignment of the Development Agreement, that the Development Agreement is a valid
and enforceable agreement and that neither party is in default hereunder and that all covenants,
conditions and agreements have been performed as required therein, except those not due to be
performed until after the date hereof. The Borrower agrees not to amend or modify the
Development Agreement without the prior written approval of the Lender and agrees that no
[16261-0094/2408871/1] 3
amendment or modification shall be valid without such consent. The Borrower agrees not to
assign, sell, pledge, mortgage, or otherwise transfer or encumber its interest in the Development
Agreement so long as this Agreement is in effect.
8. City's Representations. The City consents and agrees to the terms and conditions of this
Agreement. The City further represents and warrants to the Lender that the Development
Agreement is a valid agreement enforceable in accordance with its terms and that neither the
City nor the Borrower is in default thereunder, and that all covenants, conditions and agreements
have been performed as required therein, except those not to be performed until after the
Effective Date. The City agrees that all of its obligations under the Development Agreement,
shall in all respects, remain in full force and effect upon assignment from Borrower to Lender,
unless terminated in accordance with the terms thereof. In addition, the City acknowledges that
the terms of the Mortgage, not the Development Agreement, shall control the use and
disbursement of insurance proceeds and condemnation awards. The City agrees that
contemporaneously with any notice of default given under the Development Agreement to the
Borrower the City shall also provide the Lender with a copy of such notice of default, and the
Lender shall have the right, but not the obligation, to cure any such default on behalf of the
Borrower within any applicable cure period provided for in the Development Agreement.
9. Attorney's Fees. The Borrower agrees to pay all costs and expenses (including, without
limitation, reasonable attorneys' fees) which the Lender may incur in exercising or enforcing any
of its rights under this Agreement.
10. Lender's Rights. This Agreement can be waived, modified, amended, terminated, or
discharged only explicitly in a writing signed by the Lender. A waiver signed by the Lender shall
be effective only in a specific instance and for the specific purpose given. Mere delay or failure
to act shall not preclude the exercise or enforcement of any of the Lender's rights or remedies
hereunder. All rights and remedies of the Lender shall be cumulative and shall be exercised
singularly or concurrently, at Lender's option, and the exercise or enforcement of any one such
right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other.
11. Miscellaneous.
a. Accuracy of Recitals. The recitals set forth at the beginning of this Assignment
are deemed incorporated herein, and the parties hereto represent they are true and
correct.
b. Caption Headings. Caption headings in this Assignment are for convenience
purposes only and are not to be used to interpret or define the provisions of this
Assignment.
c. Entire Agreement/Amendment. City acknowledges that Lender is not a party to
the Development Agreement and that this Agreement constitutes the entire
agreement between City and the Lender with respect to the subordination of
[16261-0094/2408871/1] 4
City's rights under the Development Agreement, and that this Agreement may be
amended only in writing executed by City and Lender.
d. Interpretation. The parties are entering into and executing this Agreement in
order to establish the priority of the Loan Documents and any liens and/or
encumbrances created thereby, and, accordingly, such parties hereby agree,
understand, and acknowledge that the enforceability of this Agreement is not, and
shall not be, restricted, limited, or impaired by the fact that not all of the parties
are signatories to each or any of the Loan Documents.
e. Time is of the Essence. Time is of the essence in the performance of this
Assignment.
f. Notices. All notices required to be given under this Agreement shall be given in
writing and shall be effective when actually delivered or when deposited in the
United States mail, first class, postage prepaid, addressed to the party to whom the
notice is to be given at the address shown below:
Lender: Minnwest Bank
Attn: Gregory Hohlen
3130 Second Street South
P.O. Box 7429
St. Cloud, MN 56302
City: City of St. Joseph, Minnesota
Attn: City Administrator
25 College Avenue North
PO Box 668
St. Joseph, MN 56374
Borrower: CM St. Joe, LLC
Attn: Mitchell J. Rengel
10 —8th Avenue South
Sartell, Minnesota 56377
Any party may change its address for notices under this Agreement by giving
formal written notice to the other parties, specifying that the purpose of the notice
is to change the party's address.
g. Choice of Law, Severability. This Agreement is made in the State of Minnesota
and shall be construed in accordance with the laws thereof. If any provision
hereof is in conflict with any statute or rule of law of the State of Minnesota and
is otherwise unenforceable, such provisions shall be deemed null and void only to
[16261-0094/2408871/1] 5
the extent of such conflict or unenforceability, and shall be deemed separate from
and shall not invalidate any other provision of this Agreement.
h. Counterparts. It is understood and agreed that this Agreement may be executed in
several counterparts, each of which shall, for all purposes, be deemed an original,
and all of such counterparts, taken together, shall constitute one and the same
Agreement.
i. Successors and Assigns. This Assignment shall bind upon and inure, to the benefit
of the parties and their respective successors and assigns.
[Signature pages to follow.]
[16261-0094/2408871/1] 6
SIGNATURE PAGE TO
ASSIGNMENT AND SUBORDINATION OF DEVELOPMENT AGREEMENT
The parties have executed this Agreement as of the Effective Date.
BORROWER:
CM St. Joe, LLC
By
Mitchell J. Rengel
Its Manager
By
Corey Gerads
Its Manager
STATE OF MINNESOTA )
SS
COUNTY OF STEARNS )
On this day of August, 2016, before me, a Notary Public for this County,
personally appeared Mitchell J. Rengel, who, being by me duly sworn, did say that he is the
Manager of CM St. Joe, LLC, a Minnesota limited liability company, and that this instrument
was signed on behalf of said limited liability company by authority of its Members and
acknowledged said instrument to be the free act and deed of said limited liability company.
Notary Public
STATE OF MINNESOTA )
) SS
COUNTY OF STEARNS )
On this day of August, 2016, before me, a Notary Public for this County,
personally appeared Corey Gerads, who, being by me duly sworn, did say that he is the Manager
of CM St. Joe, LLC, a Minnesota limited liability company, and that this instrument was signed
on behalf of said limited liability company by authority of its Members and acknowledged said
instrument to be the free act and deed of said limited liability company.
Notary Public
[16261-0094/2408871/1] S-1
SIGNATURE PAGE TO
ASSIGNMENT AND SUBORDINATION OF DEVELOPMENT AGREEMENT
LENDER:
Minnwest Bank
By
Gregory Hohlen
Its Senior Vice President
STATE OF MINNESOTA )
SS
COUNTY OF STEARNS )
On this day of August, 2016, before me, a Notary Public for this County,
personally appeared Gregory Hohlen, who, being by me duly sworn, did say that d is the Senior
President for Minnwest Bank, and that this instrument was signed on behalf of said Bank by the
above-named officer acknowledging said instrument to be its free act and deed.
Notary Public
[16261-0094/2408871/1] S-2
SIGNATURE PAGE TO
ASSIGNMENT AND SUBORDINATION OF DEVELOPMENT AGREEMENT
CITY: CITY:
CITY OF ST. JOSEPH, MINNESOTA CITY OF ST. JOSEPH, MINNESOTA
By By
Its Mayor Its City Administrator
STATE OF MINNESOTA )
) SS
COUNTY OF STEARNS )
On this day of 2016, before me, a Notary Public for this County,
personally appeared who, being by me duly sworn, did say that he/she is
the Mayor of the City of St. Joseph, a Minnesota municipal corporation, and that this instrument
was signed on behalf of said corporation by authority of its City Council and acknowledged said
instrument to be the free act and deed of said corporation.
Notary Public
STATE OF MINNESOTA )
) SS
COUNTY OF STEARNS )
On this day of 2016, before me, a Notary Public for this County,
personally appeared , who, being by me duly sworn, did say that he/she is
the City Administrator of the City of St. Joseph, a Minnesota municipal corporation, and that this
instrument was signed on behalf of said corporation by authority of its City Council and
acknowledged said instrument to be the free act and deed of said corporation.
Notary Public
THIS INSTRUMENT DRAFTED BY:
Rinke Noonan(HAM)
1015 W. St. Germain Street, Ste. 300
P.O. Box 1497
St. Cloud,MN 56302-1497
(320)251-6700
File No. 16261-0094
[16261-0094/2408871/1] S-3
Exhibit A
LEGAL DESCRIPTION
Lot 1, Block l; Lot 1, Block 2; Lots 1 through 12, Block 3; and Outlots A through G, Country
Manor Senior Living Campus, Stearns County, Minnesota
[16261-0094/2408871/1] A-1