5.2. SR 02-19-2008REQUEST FOR ACTION
To Item Number
Ci Council 5.2.
Agenda Section Meeting Date Prepared by
Community Development February 19, 2008 Catherine Mehelich, Director of
Economic Develo ment
Item Description Reviewed by
Consider Resolution Authorizing Execution of an Amendment Lori ohnson, Ci Administrator
to Tax Abatement and Business Subsidy Agreement with Mowry Reviewed by
Properties, LLC
Action Requested
The City Council is asked to consider approval of the attached Resolution Authorizing Execution of an
Amendment to Tax Abatement and Business Subsidy Agreement with Mowry Properties, LLC. An
amendment of the agreement is necessary in order to redefine the subject tax abatement property as a
result of the pending sale of a portion of the previously defined property.
Background/Discussion
In August 2007 the City of Elk River entered into a Tax Abatement and Business Subsidy Agreement
with Mowry Properties, LLC to provide financial assistance to the planned relocation and expansion of
Metal Craft Machine and Engineering on an approximately 9-acre portion of the 17-acre Sandpiper
Business Park. While the amount of tax abatement provided to Mowry Properties, LLC was limited only
to the portion occupied by the Metal Craft expansion project, the agreement allowed for the tax revenues
generated from the entire parcel to extinguish the tax abatement note earlier, until subdivided and sold.
Mowry Properties, LLC is undergoing the process to plat and subdivide the property into two lots, of
which the easterly 7-acre lot is proposed to be acquired by Caswell and Osterman Properties, LLC for the
relocation and expansion of E & O Tool. Therefore, it is necessary to amend the agreement to redefine
the tax abatement property with the proposed legal description.
Attachments
^ Resolution Authorizing Execution of an Amendment to Tax Abatement and Business Subsidy
Agreement
^ First Amendment to Tax Abatement and Business Subsidy Agreement
Tax Abatement and Business Subsidy Agreement with Mowry Properties, LLC
Action Motion by Second by Vote
FOllow Up
C:\Documents and Settings\jjohnson\Local Settings\Temporary Internet Files\OLK49\2 19 US Mowry Action Requested (2).doc
EXTRACT OF MINUTES OF MEETING
OF THE CITY COUNCIL OF THE
CITY OF ELK RIVER, MINNESOTA
HELD: February 19, 2008
Pursuant to due call and notice thereof, a meeting of the City Council of the City of Elk
River, Sherburne County, Minnesota, was duly called and held at the City Hall in said City on
Monday, the 19th day of February, 2008, at o'clock p.m.
The following members were present:
and the following were absent:
Member introduced the following resolution and moved its adoption:
RESOLUTION NO.
AUTHORIZING EXECUTION OF AN
AMENDMENT TO TAX ABATEMENT AND
BUSINESS SUBSIDY AGREEMENT
A. WHEREAS, the City and Mowry Properties, LLC, a Minnesota limited liability
company (the "Developer") have entered into Tax Increment and Business Subsidy Agreement
Agreement, dated as of August _, 2007 (the "Tax Abatement and Business Subsidy
Agreement") in connection with the construction of an approximately 60,000 square foot light
industrial facility to be located in the City (the "Project"); and
B. WHEREAS, the City and the Developer wish to amend the Tax Abatement and
Business Subsidy Agreement as provided in the First Amendment to Tax Abatement and
Business Subsidy Agreement (the "First Amendment") to reflect the change in the description of
the Tax Abatement Property as a result of the Tax Abatement Property being subdivided and
replatted.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Elk River,
Minnesota, as follows:
1. The City Council hereby approves the First Amendment in substantially the form
submitted, and the Mayor and Administrator are hereby authorized and directed to execute the
First Amendment on behalf of the City.
2. The approval hereby given to the First Amendment 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 this resolution to execute the First Amendment. The execution of
2141468v1
C:\Users\cmehelich\AppData\Local\Microsoft\Windows\Temporary Internet Files\OLK4635\PCDOCS-#2141468-v1-
Elk River Metalcraft RESOLUTION APPROVING AMENDMENT (2).DOC
the First Amendment by the appropriate officer or officers of the City shall be conclusive
evidence of the approval of the First Amendment in accordance with the terms hereof.
The motion for adoption of the foregoing resolution was duly seconded by member
and, after full discussion thereof, and upon a vote being taken thereof, the
following voted in favor thereof:
and the following voted against same:
Adopted this 19th day of February, 2008.
Mayor
Attest:
Clerk
2141468v1 2
STATE OF MINNESOTA
COUNTY OF SHERBURNE
CITY OF ELK RIVER
I, the undersigned, being the duly qualified and acting Clerk of the City Council of the
City of Elk River, Minnesota, DO HEREBY CERTIFY that I have carefully compared the
attached and foregoing extract of minutes with the original minutes of a meeting of the City
Council City held on the date therein indicated, which are on file and of record in my office, and
the same is a full, true and complete transcript therefrom insofar as the same relates to a
Resolution Authorizing the Execution of an Amendment to Tax Abatement and Business
Subsidy Agreement.
WITNESS my hand as such Clerk of the City Council of the City of Elk River,
Minnesota this day of February, 2008.
Clerk
2141468v1 3
FIRST AMENDMENT TO TAX ABATEMENT AND
BUSINESS SUBSIDY AGREEMENT
THIS FIRST AMENDMENT TO TAX ABATEMENT AND BUSINESS SUBSIDY
AGREEMENT (the "Amendment"), dated as of the day of February, 2008, by and between
the CITY OF ELK RIVER, MINNESOTA (the "City"), a municipal corporation and political
subdivision of the State of Minnesota, and MOWRY PROPERTIES, LLC, a Minnesota limited
liability company (the "Developer")
WITNESSES:
WHEREAS, the City and the Developer have entered into a Tax Abatement and Business
Subsidy Agreement, dated as of August , 2007 (the "Agreement") in connection with the
construction of an approximately 60,000 square foot light industrial facility (the "Project"); and
WHEREAS, the City and the Developer wish to amend the Agreement as provided in this
Amendment to reflect the change in the description of the Tax Abatement Property as a result of
the Tax Abatement Property being subdivided and replatted; and
WHEREAS, the City and the Developer have both duly authorized the Amendment; and
NOW, THEREFORE, the Agreement is amended as provided herein.
1. Section 1.1 Definitions is amended and restated as follows:
"Tax Abatement Property means all and any portion of the real property owned or to be
owned by the Developer and described as Lot 1, Block 1, Portside Addition located in the City."
2. Except as herein amended, all terms and provisions of the Tax Abatement and
Business Subsidy Agreement, as originally executed as of August , 2007 shall remain in full
force and effect.
2141342v1
C:\Users\cmehelichWppData\Local\Microsoft\Windows\Temporary Internet Files\OLK4635\PCDOCS-#2141342-v1-
Elk River Metal Craft AMENDMENT TO ABATEMENT AND BUSINESS SUBSIDY AGREEMENT.DOC
IN WITNESS WHEREOF, the City and the Developer have caused this Amendment to
be duly executed on the date first written above.
MOWRY PROPERTIES, LLC
BY.
Its
2141342v1 S-I
CITY OF ELK RIVER, MINNESOTA
By:
Mayor
By:
Administrator
2141342v1 S-2
TAX ABATEMENT AND BUSINESS SUBSIDY AGREEMENT
BY AND BETWEEN
CITY OF ELK RIVER, MINNESOTA
AND
MOV~rRY PROPERTIES, LLC
30a5533va
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ................................................................................................. 1
Section 1.1 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 .............. ^
ARTICLE III UNDERTAKINGS BY DEVELOPER AND CITY ....................................... 5
Section 3.1 Construction of Project and Reimbursement of Tax Abatement
Property Cost ....................................................................................... 5
Section 3.2 Limitations on Undertaking of the City ............................................... 5
Section 3.3 Commencement and Completion of Construction ............................... ~
Section 3.4 Damage and Destruction ...................................................................... 5
Section 3.5 Change in Use of Project ..................................................................... 5
Section 3.6 Prohibition Against Transfer of Project and Assignment of
Agreement ............................................................................................ 5
Section 3.7 Real Property Taxes ............................................................................. 6
Section 3.8 Business Subsidies Act ........................................................................ 6
Section 3.9 Duration of Abatement Program .......................................................... 7
ARTICLE N EVENTS OF DEFAULT ................................................................................. 8
Section 4.1 Events of Default Defined ................................................................... 8
Section 4.2 Remedies on Default ............................................................................ S
Section 4.3 No Remed}r Exclusive .......................................................................... $
Section 4.4 No Implied Waiver .............................................................................. 8
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
Section 5.4 Counterparts .............................
.......................................................... 10
Section 5.5 Law Governing .................................................................................. 10
Section 5.6 Duration ............................................................................................. 11
Section 5.7 Provisions Surviving Rescission or Expiration .................................. 1 l
20~55~33vA
-i-
TAX ABATEMENT AND BUSINESS SUBSIDY AGREEMENT
THIS AGREEMENT, made as of the 4th day of September, 2007, by and among the City
of Elk River, Minnesota (the "City°'), a municipal corporation and political subdivision of the
State of Minnesota, and Mo~~ry Properties; LLC, a Minnesota limited liability company (the
"Developer').
WITNESSETH:
RrHEREAS, pursuant to Minnesota Statutes, Sections 469.1812 through 469.181 ~, the
City has established a Tax Abatement Program; and v
VtiTHEREAS, the City believes that the deve]oprnent 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 flax base, provide employment
opportunities and are in accordance ~~ith 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
V+rI-iEREAS, the requirements of the Business Subsidy Law; Minnesota Statutes; Section
116J.993 through 116J.99~, apply to this Agreement; and
V~~IEREAS; the City has adopted criteria for awarding business subsidies that comply
with the Business Subsidy Law, after public hearings for which notice was published; and
~ZIEREAS, the Counci} has approved this Agreement as a subsidy agreement under the
Business Subsidy Law. y
NOVV, THEREFORE; in consideration of the premises and the mutual obligations of the
parties hereto; each of them does hereby covenant and agxee with the other as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. All capitalized terms used and nat otherwise defined herein
shall have the following meanings unless a different meaning clearly appears from the context:
Agreement means this Agreement, as the same may be from time to time modified,
amended or supplemented:
Benefit Date means the date on which a Certificate of Occupancy for the Project is issued
by the City;
Business Dav means any day except a Saturday. Sunday or a legal holiday or a day on
which banking institutions in the City are authorized by law or executive order to close;
20A5~33vQ
City means the City of Elk River, Minnesota;
Count<~ means Sherburne County. Minnesota;
Developer means Mowr}r Properties, LLC, a Minnesota limited liability company, its
successors and assigns;
Event of Default means any of the events described in Section 4.1;
Project means the construction by the Developer of an approximately 60,000 square foot
light industrial facility to be located in the City;
State means the State of Minnesota:
Tax Abatement Act means Minnesota Statutes, Sections 469.1812 through 469.181 ~;
Tax Abatement Program means the actions by the City pursuant to Minnesota Statutes.
Section 469.1812 through 469.181 ~, as amended, and undertaken in support of the Project;
Tax Abatement Property means all and any portion of the real property currently
identified as Parcel Identification Number 7~-131-4100, Located in the City:
Tax Abatements means 100% of the City's share of real estate taxes on the Tax
Abatement Property abated in accordance with the Tax Abatement Program.
zwss~3~a ~
ARTICLE II
REPRESENTATIONS AND Vl'ARR.ANTIES
Section 2.1 Representations and Warranties of the Cite. The Cit}~ makes the following
representations and warranties:
(1) The City is a municipal corporation and a political subdivision of the State and
has the power to enter into this Agreement and camp 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 Tax Abatement Property as further
provided in this Agreement.
(4) The City has made the findings required by the Tax Abatement Act for the Tag
Abatement Program.
Section 2.2 Representations and Warranties of the Developer. The Developer makes the
following representations and warranties:
(1 j The Developer has the power to enter into this Agreement and to perform its
obligations hereunder and doing so will not violate its articles of organization or operating
agreement or any local, state or federal laws.
(2) The Developer is a limited liability company validly existing under the laws of
this State and has full power to enter into this Agreement 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 local. state and federal laws and regulations (including, but not
limited to, environmental, zoning, energy conservation, building code and public health laws and
regulations).
(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
(~) 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.
204~533v4 j
(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
conditians of this Agreement is prevented, limited by or conflicts r~~th 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 but only to the extent that the City and the Developer are
not adverse parties to the litigation.
(8) The Developer will cooperate fully ~~ida 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.
2045>33F~4 4
ARTICLE III
UNDERTAKINGS BY DEVELOPER AND CITY
Section 3.1 Construction of Proiect and Reimbursement of Tax Abatement Property
C05t.
(1) The costs of the construction of the Project shall be paid by the Developer. The
Developer will construct the Project in accordance with the approved construction plans and at
all times prior to the termination of this Agreement will 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.
(2) Upon completion of the Project and submission to the City of a settlement
statement for the purchase of the Abatement Property actually incurred and paid by the
Developer or its designee, the City shall reimburse the Developer for such costs of the
Abatement Property in an amount not to exceed $~~4,199 (the "Reimbursement Amount')
pursuant to the Abatement Program as provided in Section 3.9.
Section 3.2 Limitations on Undertaking of the Cit< . Notwithstanding the provisions of
Section 3.1, the City shall have no obligation to reimburse the Developer for the costs of the
Project. if the City, at the time or times such payment is to be made, is entitled under Section ~?
to exercise any of the remedies set forth therein as a result of an Event of Default which has not
been cured.
Section 3.~ Commencement and Completion of Construction. The Developer shall
complete the Project by April 30, ?009. All work ~n~ith respect to the Project to be constructed or
provided by the Developer shall be in conformity with the construction plans as submitted by the
Developer and approved b}r the City.
Nothing in this Agreement shall be deemed to impair or limit any of the City's rights or
responsibilities under its zoning laws or construction permit processes.
Section 3.4 Damage and Destruction. In the event of damage or destruction of the
Project the Developer shall repair or rebuild the Project.
Section 3.~ Change in Use of Proiect. The City's obligations pursuant to this Agreement
shall be subject to the continued operation of the Project by the Developer.
Sectian 3.b Prohibition Against Transfer of Proiect and Assignment of A~?reement. The
Developer represents and agrees that prior to the termination date of this Agreement the
Developer shall not transfer the Project or any part thereof or any interest therein, without the
prior written approval of the City. The City shall be entitled to require as conditions to any such
approval that:
204»33v4 ~
(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 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.
(3) There shall be submitted to the Cih~ for review and prior wz-itten approval all
instruments and other legal documents involved in effecting the transfer of any interest in this
Agreement or the Project.
Section 3.7 Real Propertv Taxes. The Developer shall, so lone 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 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 le~rying a tax;
(b) It r~rill not seek administrative review or judicial review of the
constitutionalit}- 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 le~rying a tax;
(c) It will not seek any tax deferral or abatement, either presently or
prospectively authorized under Minnesota Statutes, Section 469.181. or any other State or
federal law, of the ad valorem property taxation of the Tax Abatement Property so long
as this Agreement remains in effect.
Section 3.8 Business Subsidies Act.
{1) In order to satisfy the provisions of Minnesota Statutes; Sections 116J.993 to
116.T.99~ (the "Business Subsidies Act''), the Developer acknowledges and agrees that the
amount of the "Business Subsidy" granted to the Developer under this Agreement is the value of
a portion of the Tax Abatement Property, which is approximately $84,199, and that the
Business Subsidy is needed because the Project is not sufficiently feasible for the Developer to
20~»33v4 5
undertake without the Business Subsidy. The public purpose of the Business Subsidy is to create
jobs and increase the tax base in the City. The Developer agrees that it will cause Metal Craft
Machine & Engineering, Inc. {the "Tenant') to meet the following goals (the "Goals"): in
addition to the existing 78 full time equivalent jobs the Tenant will maintain; it will create at
least twenty {20) new full time equivalent jobs in connection with the development of the Project
at a wage of at least $15.00 per hour, which includes benefits not required by law, within two
years from the Benefit Date.
(2} If none of the Goals are met; the Developer agrees to repay all of the Business
Subsidy to the City. plus interest ("Interest') set at the implicit price deflator defined in
Minnesota Statutes. Section 275.70. Subdivision 2. accruing from and after the Benefit Date.
compounded semiannually. If the Goals are met in part; the Developer will repay a portion of
the Business Subsid}~ (plus Interest) determined by multiplying the Business Subsidy b}~ a
fraction, the numerator of which is the number of jobs in the Goals which were not created at the
wage level set forth above and the denominator of which is twenty {20) (i.e, number of jobs set
forth in the Goals}.
(3) The Developer agrees to (i) report its progress on achieving the Goals to the City
until the later of the date the Goals are met or two years from the Benefit Date; or, if the Goals
are not met, until the date the Business Subsidy is repaid, {ii) include in the report the
information required in Section 1161.994, Subdivision 7 of the Business Subsidies Act on forms
developed by the Minnesota Department of Employment and Economic Development, and (iiij
send completed reports to the City. The Developer agrees to file these reports no later than
March 1 of each year commencing March 1, 2008, and within 30 days after the deadline for
meeting the Goals. The City agrees that if it does not receive the reports; it will mail the
Developer a warning ~rithin one week of the required ftling date. If within 14 days of the post
marked date of the warning the reports are not made, the Developer agrees to pay to the City a
penalty of $100 for each subsequent da}- until the report is filed up to a maximum of $1,000.
(4} The Developer agrees to cause the Tenant to continue operations of the Project for
at least five (~) years after the Benefit Date.
(~) Other than the Tax Abatements provided by the City and comparable tax
abatements from the County; there are no state or local government agencies providing financial
assistance for the Project.
(6) There is no parent corporation of the Developer or the Tenant.
Section 3.9 Duration of Abatement Program. The Tax Abatement Prouram shall exist
for a period of up to tweh~e years beginning with real estate taxes payable in 2010 through 2018.
On or before February 1 and August 1 of each year commencing August 1, 2010 until the earlier
of the date that the Developer shall have received the Reimbursement Amount or February 1,
2019 the City shall pay the Developer the amount of the Tax Abatements received by the City in
the previous six month period. The Cite may terminate the Tax Abatement Program and this
Agreement at an earlier date if an Event of Default occurs and the City rescinds or cancels this
Agreement.
2p45>33vA
ARTICLE IV
EVENTS OF DEFAULT
Section 4.1 Events of Default Deftned. 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 obser<~ed or performed under this Agreement.
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 citron 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. If the Event of Default has not been cured within
said thirty {30) days:
(a) The City may suspend its performance under this Agreement until it
receives assurances from the Developer. deemed adequate b}l the City, that the Developer
will cure its default and continue its performance under this Agreement.
(b) The Cit}~ 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 X1.3 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 ar by statute. No delay or omission to
exercise an}~ right or power accruing upon any default shall impair an}~ such right or power or
shall be construed to be a waiver thereof but any such right and power may be exercised from
time to time and 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
2045>33v4
limited to the particular breach so waived and shall not be deemed to waive any other concurrent;
previous or subsequent breach hereunder.
Section 4.~ Agreement to Pav 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 therefor, pay to the City the reasonable fees of such attorneys and such
other expenses so incurred by the City.
Section ~.6 Release and Indemnification Covenants.
{1 j The Developer releases from and covenants and agrees that the City and its
governing bod}~ members, off cers; 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 an}' person occumng 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 bod}~ members. officers, agents, servants and employees, now or forever; and further
agrees to hold the aforesaid harmless from an}r 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, installation, 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 injur}r 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 cotJenants; 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.
20~5533v~ 9
ARTICLE V
ADDITIONAL PROVISIONS
Section ~.I 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 52 Titles of Articles and Sections. An}~ 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 ~.3 Notices and Demands. Except as otherwise expressly pro~rided 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:
Mowry Properties. LLC
12797 Meadouwale Road
Elk River, MN ~~330
Attention: President
{2) in the case of the City is addressed to or delivered personall}~ to the City at:
Cite of Ellc River, Minnesota
Elk River Cit}~ Hall
li06~ Orono Parkway
Ells River, MN »330-600
Attention: Director of Economic Development
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 ~.4 Counterparts. This Agreement may be executed in any number of
counterparts. each of which shall constitute one and the same instrument.
Section ~.~ Law Governing. This Agreement will be governed and construed in
accordance with the laws of the State of Minnesota.
?(N»33v4 10
Section 5.6 Duration. This Agreement shall remain in effect through the earlier of the
date the Developer receives the Rein~bursernent Amount or February 1, 2019, unless earlier
terminated or rescinded in accordance with its terms.
Section ~.7 Provisions Surviving Rescission or Expiration. Sections 4.6 and 4.6 shall
survive any rescission; ternYination or expiration of this Agreement with respect to or arising out
of any event. occurrence or circumstance existing prior to fire date thereof.
2W 5533v4 I 1
IN WITNESS V~THEREOF, 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.
MOWRY PROPERTIES, LLC
~~
Its 1,r~1 /1~,:~
This is a signature page to fihe Tax Abatement and Business Subsidy Agreement by and between
the Cit<J of Elk River, Minnesota and MouTy Properties, LLC
?o=~ss~3~a S-1
CITY OF ELK RIVER, MINNESOTA
Its Ma} or
By ._ -~,~
Its Administrator
This is a signature page to the Tax Abatement and Business Subsidy Agreement by and between
the City of Elk River, Minnesota and Mov~~ry Properties, LLC
2U-0>j33v4 s_?