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HomeMy WebLinkAbout[06c] Assignment of TIF Revenue Note CITY OF ST. JOSEPH CITY OF ST.JOSEPH RESOLUTION 2017-068 RESOLUTION APPROVING AND CONSENTING TO THE ASSIGNMENTS OF TAX INCREMENT REVENUE NOTE WHEREAS,the City Council entered into an Amended and Restated Development Agreement, dated October 24, 2017 (the "Development Agreement")with Bayou Alley Flats, LLC, a Minnesota limited liability company (the "Developer"). The Developer desires to assign its interest in the Tax Increment Revenue Note pursuant to an Assignment of Tax Increment Revenue Note by and between the Developer and Jon Petters and an Assignment of Tax Increment Revenue Note by and between Jon Petters and Kensington Bank, a Minnesota banking corporation(collectively, the "Assignments"). WHEREAS,the Assignments have been submitted to the City Council for approval and consent. BE IT RESOLVED by the City Council of the City of St. Joseph, Minnesota,that the City Council hereby approves and consents to the Assignments in substantially the forms submitted. Adopted by the Council this 18th day of December, 2017. Rick Schultz, Mayor Judy Weyrens, City Administrator [21380-0003/28810732881725/1] 1 ASSIGNMENT OF TAX INCREMENT FINANCING REVENUES AGREEMENTREVENUE NOTE THIS ASSIGNMENT OF TAX INCREMENT FINANCING REVENUES AGREEMENTREVENUE NOTE (the “Assignment”) is made and entered into as of October 5, 2016December ____, 2017 (the “Effective Date”),Jon C. Petters (“Petters”), the “Assignor,” for the benefit of KENSINGTON BANK, a Minnesota banking corporation, (the “Lender”). BACKGROUND Bayou Alley Flats, LLC,entered into that certain Amended and Restated Development Agreement dated October 24, 2017,with the City of St.Joseph, Minnesota (the “City Agreement”). The Agreement provides for tax increment financing (“TIF”) by the City of St.Joseph (“City”) on certain real estate owned by Bayou Alley Flats, LLC, as of the date of the City Agreement. The TIF financing is to be provided by the City by means of a promissorytax increment revenue note (the “City’s TIF Note”) in the form attached to the City Agreement. As of this date, Bayou Alley Flats, LLC as the Developer under the City Agreement assigned to the rights to the City’s TIF Note and the payments thereunder to Petters as it relates the real property legally described on Exhibit A attached hereto (the “Bayou Alley Flats Property”)which is defined as the Development Property in the City Agreement and certain tax increments from the Development property are pledged to the payment of the TIF Note as provided in the City Agreement. Petters now desires to assignhereby further assigns to Lender his rights to any payments to be received by him under the City’s Agreement pursuant to the TIF Note and the payments thereunder to Petters as it relates Bayou Alley Flats Property. Capitalized terms in this Assignment shall have the meanings set forth in the City Agreement unless otherwise defined herein. AGREEMENT 1.Assignment. Petters hereby unconditionally assigns, transfers and sets over unto Lender, as assignee, all of his right, title and interest in any and all of the payments received and to be received by [21380-0003/28810732881725/1] 2 Petters under the TIF Note to the extent that such payments relate to the Bayou Alley Flats Property (“Assigned TIF”). Lender hereby accepts such assignment.Petters shall cause all payments due and payable to him under the City Agreement and TIF Note to be paid directly t o Lender. All such payments may be applied to Petters periodic payment obligations under the Credit Agreement by and between Petters, and Lender, dated ______________________, provided that an Event of Default (as defined therein) has not occurred. The City hereby acknowledges and agrees to the assignment of the rights identified herein. 2.Indemnification. Petters hereby agrees that he shall indemnify,defend, and hold harmless Lender and its members, directors, officers, employees, agents and their respective successors, heirs and assigns (the “Protected Parties”), against any liability, damage, loss, or expense (including reasonable attorney’s fees and expenses of litigation) incurred by or imposed upon any of the Protected Parties in connection with any claims, suits, actions, demands or judgments (“Claims”) arising out of any theory of liability (regardless of whether such action has any factual basis) concerning or in any way related to this Assignment. 3.Miscellaneous. a.Entire Agreement. This Agreement is the sole agreement with respect to the subject matter hereby and except as expressly set forth herein, supersedes all other agreements and understandings between the parties with respect to same. b.Notices. Unless otherwise specifically provided, all notices required or permitted by this Agreement shall be in writing and may be delivered personally, or may be sent by facsimile or certified mail, return receipt requested, to the following addresses, unless the parties are subsequently notified of any change of address in accordance with this Section 4b. If to Petters:15 East Minnesota St. #104 Saint Joseph, MN 56374 If to Lender:501 W St. Germain St. Cloud, MN 56301 Attn: Tammy Simon Any notice shall be deemed to have been received as follows: (i) by personal delivery, upon receipt; (ii) by facsimile, one business day after transmission or dispatch; (iii) by mail, three (3) business days after delivery to the postal authorities by the party serving notice. If notice is sent by facsimile, a confirming copy of the same shall be sent by mail to the same address. c.Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of Minnesota, without regard to the application of principles of conflicts of law. The parties hereby consent to personal jurisdiction in Minnesota and agree that the competent court in Stearns County, Minnesota shall have sole jurisdiction over any and all matters arising from this Agreement. d.Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns. [21380-0003/28810732881725/1] 3 e.Amendment; Waiver. This Agreement may be amended, modified, superseded or canceled, and any of the terms may be waived, only by a written instrument executed by each party o r, in the case of waiver, by t he party waiving compliance. T he delay o r failure of any party at any time or times to require strict performance of any provisions hereof shall in no manner affect the rights at a later time to enforce the same. No waiver by either party o f any condition or of the breach of any term contained in this Agreement, whether by conduct, or otherwise, in any one or more instances, shall be deemed to be, or considered as, a further or continuing waiver of any such condition or of the breach of such term or any other term of this Agreement. f.Counterparts. This Agreement may be signed in multiple counterparts, which together shall comprise one and the same instrument. (Signature Page to Follow) [21380-0003/28810732881725/1] 4 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by t heir duly authorized representatives as of the date first written above. ___________________________ Jon C. Petters STATE OF MINNESOTA ) )ss. COUNTY OF STEARNS ) The foregoing instrument was acknowledged before me this ____ day o f December, 2017, by J on C. Petters. __________________________________ Notary Public THE CITY OF ST. JOSEPH, MINNESOTA By: _________________________________ Its: _________________________________ STATE OF MINNESOTA ) )ss. COUNTY OF STEARNS ) The foregoing instrument was acknowledged before me this ____ day of December, 2017, by __________________, the ______________________________ of the City of St. Joseph, Minnesota, on behalf of said City. __________________________________ Notary Public [21380-0003/28810732881725/1] 5 EXHIBIT A Legal Description Property located in the City of St. Joseph, Stearns County, Minnesota with the following Parcel Identification Numbers: Phase I Project 84.53867.0000 84.53733.0152 Phase II Project 84.53876.0000 [21380-0003/28810202881698/1] 1 ASSIGNMENT OF TAX INCREMENT FINANCING REVENUES AGREEMENTREVENUE NOTE THIS ASSIGNMENT OF TAX INCREMENT FINANCING REVENUES AGREEMENTREVENUE NOTE (the “Assignment”) is made and entered into as of December ____, 2017, (the “Effective Date”), by BAYOU ALLEY FLATS, LLC, a Minnesota limited liability company (“Bayou Alley Flats”), the “Assignor,” for the benefit of Jon C. Petters (“Petters”). BACKGROUND Bayou Alley Flats entered into that certain Amended and Restated Development Agreement dated October 24, 2017,with the City of St.Joseph, Minnesota (the “City Agreement”). The Agreement provides for tax increment financing (“TIF”) by the City of St.Joseph (“City”) on certain real estate owned by BAYOU ALLEY FLATS as of the date of the City Agreement. The TIF financing is to be provided by the City by means of a promissorytax increment revenue note (the “City’s TIF Note”) in the form attached to the City Agreement. BAYOU ALLEY FLATS now desires to assign its rights to any payments received and to be received by BAYOU ALLEY FLATS under the TIF Note, as it relates the real property legally d escribed on Exhibit A attached hereto (the “BAYOU ALLEY FLATS Property”)which is defined as the Development Property in the City A greement and certain tax increments from the Development property are pledged to the payment of the TIF Note as provided in the City Agreement. Capitalized terms in this Assignment shall have the meanings set forth in the City Agreement unless otherwise defined herein. AGREEMENT 1.Assignment. Assignor hereby unconditionally assigns, transfers and sets over unto Petters, as assignee, all of its right, title and interest in the City’s TIF Note to be issued pursuant to the City Agreement and any and all of the payments to be received by BAYOU ALLEY FLATS under the City’s TIF Note to the extent that such payments relate to the BAYOU ALLEY FLATS Property (“Assigned TIF”). Petters hereby accepts such assignment.BAYOU ALLEY FLATS shall cause all payments due and payable to BAYOU ALLEY FLATS under the City Agreement and TIF Note to be [21380-0003/28810202881698/1] 2 paid directly to Petters.The City hereby acknowledges and agrees to the assignment of the rights identified herein. 2.Obligations to Remain with BAYOU ALLEY FLATS. BAYOU ALLEY FLATS shall remain responsible to complete all obligations as “Developer” under the City Agreement. The only transfer and assignment provided by this Agreement shall be of the right to obtain reimbursement through issuance of the City’s TIF Note under Section 3.3 of the City Agreement. BAYOU ALLEY FLATS agrees to take all actions and undertakings in the time frames provided for in the City A greement necessary for the issuance of the City’s TIF Note. BAYOU ALLEY FLATS also agrees that it shall not take any action, fail to take any action, or allow any action to be taken which would result in a default, suspension, termination, alteration, amendment or change to the City A greement, the City’s TIF Note, or the reimbursement obligations of the City under the City Agreement, or the level of reimbursement or payment under the TIF Note. BAYOU ALLEY FLATS shall not assign its obligations under the City Agreement or this Agreement except with the prior written consent of Petters. 3.Warranties and Representations. BAYOU ALLEY FLATS represents and warrants that its Board of Governors and its Members have approved and authorized this Assignment, as evidenced by the signatures set forth below. 4.Miscellaneous. a.Entire Agreement. This Agreement is the sole agreement with respect to the subject matter hereby and except as expressly set forth herein, supersedes all other agreements and understandings between the parties with respect to same. b.Notices. Unless otherwise specifically provided, all notices required or permitted by this Agreement shall be in writing and may be delivered personally, or may be sent by facsimile or certified mail, return receipt requested, to the following addresses, unless the parties are subsequently notified of any change of address in accordance with this Section 4b. If to BAYOU ALLEY FLATS: Attn: Jon Petters 15 East Minnesota Street, Suite 104 St. Joseph, MN 56374 If to PETTERS: Attn: Jon Petters 15 East Minnesota Street, Suite 104 St. Joseph, MN 56374 Any notice shall be deemed to have been received as follows: (i) by personal delivery, upon receipt; (ii) by facsimile, one business day after transmission or dispatch; (iii) by mail, three (3) business days after delivery to the postal authorities by the party serving notice. If notice is sent by facsimile, a confirming copy of the same shall be sent by mail to the same address. [21380-0003/28810202881698/1] 3 c.Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of Minnesota, without regard to the application of principles of conflicts of law. The parties hereby consent to personal jurisdiction in Minnesota and agree that the competent court in Stearns County, Minnesota shall have sole jurisdiction over any and all matters arising from this Agreement. d.Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns. e.Amendment; Waiver. This Agreement may be amended, modified, superseded or canceled, and any of the terms may be waived, only by a written instrument executed by each party o r, in the case of waiver, by t he party waiving compliance. T he delay o r failure of any party at any time or times to require strict performance of any provisions hereof shall in no manner affect the rights at a later time to enforce the same. No waiver by either party o f any condition or of the breach of any term contained in this Agreement, whether by conduct, or otherwise, in any one or more instances, shall be deemed to be, or considered as, a further or continuing waiver of any such condition or of the breach of such term or any other term of this Agreement. f.Counterparts. This Agreement may be signed in multiple counterparts, which together shall comprise one and the same instrument. (Signature Page to Follow) [21380-0003/28810202881698/1] 4 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by t heir duly authorized representatives as of the date first written above. BAYOU ALLEY FLATS, LLC By: _________________________________ Jon C. Petters, Its Chief Executive Officer STATE OF MINNESOTA ) )ss. COUNTY OF STEARNS ) The foregoing instrument was acknowledged before me this ____ day o f December, 2017, by Jon C. Petters, the Chief Executive Officer of Bayou Alley Flats, LLC, a Minnesota limited liability company, on behalf of said company. __________________________________ Notary Public THE CITY OF ST. JOSEPH, MINNESOTA By: _________________________________ Its: _________________________________ STATE OF MINNESOTA ) )ss. COUNTY OF STEARNS ) The foregoing instrument was acknowledged before me this ____ day of December, 2017, by __________________, the ______________________________ of the City of St. Joseph, Minnesota, on behalf of said City. __________________________________ Notary Public [21380-0003/28810202881698/1] 5 [21380-0003/28810202881698/1] 6 EXHIBIT A Legal Description Property located in the City of St. Joseph, Stearns County, Minnesota with the following Parcel Identification Numbers: Phase I Project 84.53867.0000 84.53733.0152 Phase II Project 84.53876.0000