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HomeMy WebLinkAbout10-16 - ADMIN Resolution - Economic Development Authority - 2010/09/20ST. LOUIS PARK ECONOMIC DEVELOPMENT AUTHORITY EDA RESOLUTION NO. 10-16 RESOLUTION APPROVING AN ASSIGNMENT AND ASSUMPTION OF REDEVELOPMENT CONTRACT BETWEEN DUKE REALTY LIMITED PARTNERSHIP WEA, LLC BE IT RESOLVED By the Board of Commissioners ("Board") of the St. Louis Park Economic Development Authority ("Authority") as follows: Section 1. Recitals. 1.01. The Authority is currently administering its Redevelopment Project No. 1 ('Project') pursuant to Minnesota Statutes, Sections 469.001 to 469.047 ("HRA Act'), and within the Project has established The West End Tax Increment Financing District ("TIF District"). 1.02. The Authority, the City of St. Louis Park ("City") and Duke Realty Limited Partnership (the "Redeveloper") entered into an Amended and Restated Contract for Private Redevelopment Dated as of May 17, 2010 (the "Contract"), regarding redevelopment of a portion of the property within the TIF District. 1.03. The Redeveloper proposes to convey a portion of the property that is the subject of the Contract to WEA, LLC (the "Assignee"), on which portion the Assignee intends to construct a multifamily rental housing facility (which development and related property is referred to in the Contract as Phase IIC). 1.04. In connection with such conveyance, Redeveloper seeks to assign certain obligations of Redeveloper related to Phase IIC to the Assignee, and the Assignee agrees to accept such obligations, all pursuant to an Assignment and Assumption of Redevelopment Contract between Redeveloper and Assignee (the "Assignment"). 1.05. The Board has reviewed the Assignment and finds that the approval and execution of the Authority's consent thereto are in the best interest of the City and its residents. Section 2. Authority Approval; Other Proceedings. 2.01. The Assignment, including the attached Consent, Estoppel and Agreement of the Authority related thereto, as presented to the Board is hereby in all respects approved, subject to modifications that do not alter the substance of the transaction and that are approved by the President and Executive Director, provided that execution of the consent to the Assignment by such officials shall be conclusive evidence of approval. EDA Resolution No. 16-10 -2- 2.02. The President and Executive Director are hereby authorized to execute on behalf of the Authority the Consent, Estoppel and Agreement attached to the Assignment and any other documents requiring execution by the Authority in order to carry out the transaction described in the Assignment. 2.03. Authority staff and consultants are authorized to take any actions necessary to carry out Attest Secretary Adopted by the Economic Development Authority September 20, 2010 /L ASSIGNMENT AND ASSUMPTION OF REDEVELOPMENT CONTRACT THIS ASSIGNMENT AND ASSUMPTION OF REDEVELOPMENT CONTRACT (this "Agreement") dated as of the414 day of Mrhgek- , 2010, is made and entered into by and between Duke Realty Limited Partnership, an Indiana limited partnership ("Assignor"), and WEA, LLC, a Minnesota limited liability company ("Assignee"). WITNESSETH: WHEREAS, Assignor is the Redeveloper under that certain Amended and Restated Contract for Private Redevelopment dated May 17, 2010 (the "Redevelopment Contract"), by and among Assignor, as Redeveloper, the City of St. Louis Park, a Minnesota municipal corporation ("City"), and the St. Louis Park Economic Development Authority (the "Authority"); and WHEREAS, Assignor is contemporaneously herewith conveying certain real property, legally described as Lot 3, Block 1, The Shops at West End, according to the recorded plat thereof, Hennepin County, Minnesota (the "Subject Property"), to Assignee pursuant to that certain Purchase and Sale Agreement dated May 6, 2010, as amended (the "Purchase Agreement"), by and between Assignor and Assignee; and WHEREAS, title to the Subject Property (and other property owned by Assignor) is subject to and encumbered by the Redevelopment Contract, and the Subject Property is a portion of the real property defined as the Redevelopment Property under the Redevelopment Contract; and WHEREAS, Assignor desires to assign certain of its obligations, rights and interest in, to and under the Redevelopment Contract to Assignee as of the date on which title to the Subject Property is vested in Assignee (the "Transfer Date"), and Assignee desires to accept the assignment thereof and assume certain of Assignor's obligations under the Redevelopment Contract from and after the Transfer Date, all as more particularly hereinafter set forth. NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements contained herein, Assignor and Assignee hereby covenant and agree as follows: 1. Any capitalized term used herein and not otherwise defined herein shall have the meaning ascribed to such term in the Redevelopment Contract. 2. As of the Transfer Date, Assignor hereby assigns to Assignee the Assumed Obligations (as defined in Section 4 below), and all of Assignor's rights and interest in, to and under the Redevelopment Contract relating or pertaining to, and to the extent applicable to, the Subject Property. 374378A S1B SA285-84 3. Assignor hereby agrees to indemnify and defend Assignee, its successors and assigns, and its and their employees, agents, members, managers and officers (collectively the "Assignee Indemnified Parties") against, and hold the Assignee Indemnified Parties harmless from., any and all cost, liability, loss, damage or expense, including, without limitation, reasonable attorneys' fees and expenses (collectively, "Losses and Liabilities"), arising out of or in any way related to a failure by Assignor, its successors or assigns to keep and perform, or a default by Assignor, its successors or assigns under, any of the covenants, obligations and agreements to be kept and performed by the Redeveloper under the Redevelopment Contract prior to or after the Transfer Date, except for the Assumed Obligations (as hereinafter defined). 4. Assignee, as of the Transfer Date, hereby accepts the foregoing assignment, and, except as hereinafter expressly provided, assumes and agrees to keep and perform all of the covenants, obligations and agreements relating to, and to the extent applicable to, the Subject Property, Phase IIC to be constructed on the Subject Property, and construction of multifamily rental housing on the Subject Property, and to be kept and performed by the Redeveloper under the Redevelopment Contract from and after the Transfer Date, including, without limitation, the execution and delivery of an Assessment Agreement with respect to the Subject Property (collectively the "Assumed Obligations"). More specifically, Assignor and Assignee agree that the Assumed Obligations consist of the following (and only the following): (a) Section 2.2(b),(c), (d) and (f) to the extent such representations and warranties relate to Phase IIC as multifamily housing and the Subject Property; further, Assignee expressly represents, for the benefit of the Authority, that it is a limited liability company duly organized and in good standing under the laws of the State of Minnesota, is not in violation of any provisions of its organizational documents or (to the best of its knowledge) the laws of the State of Minnesota, is duly authorized to transact business within the State of Minnesota, has power to enter into this Agreement and has duly authorized the execution, delivery and performance of this Agreement by proper action of its governing body; (b) Section 3.2, to the extent such covenants relate to Phase IIC as multifamily housing and the Subject Property; (c) Sections 4.1(b) (c), and (d), clauses (1), (7), (8) and (9), all to the extent such covenants relate to construction of Phase IIC as multifamily housing; (d) Sections 4.2(a), (b), (c), (d) and (e) and Sections 4.3, 4.5, 4.6, 4.7 and 4.8, all to the extent such covenants relate to construction of Phase IIC as multifamily housing; (e) Article V, to the extent such insurance covenants relate to Phase IIC as multifamily housing; (f) Article VI, to the extent such covenants relate to Phase IIC as multifamily housing and the Subject Property; 2 374378v4 SJB SA285-84 (f) Sections 7.1 and 7.2(a) to the extent such financing covenants relate to Phase IIC as multifamily housing and the Subject Property; (g) Article VIII, to the extent such covenants relate to Phase IIC as multifamily housing and the Subject Property; provided that the parties agree and understand that this Assignment effectuates the Transfer of Phase IIC as contemplated in Section 8.2(f); (i) Article IX, to the extent related to an Event of Default by Assignee in connection with any of the Assumed Obligations; and 0) Article X, to the extent such covenants relate to Phase IIC as multifamily housing and the Subject Property; and provided that the notice address for Assignee for purposes of Section 10:5 is as provided in Section 7 of this Agreement. Notwithstanding the foregoing or anything else to the contrary contained herein or in the Redevelopment Contract, Assignor and Assignee agree that Assignee is not hereby assuming or agreeing to keep and perform any of the covenants, obligations and agreements to be kept and performed by the Redeveloper under the Redevelopment Contract other titan the Assumed Obligations. without limiting the generality of the immediately preceding sentence, it is specifically understood and agreed that Assignee shall have no responsibility or obligation whatsoever with respect to the construction of, or payment of the costs of constructing, the Redeveloper Public Improvements, or the payment of the Other Public Redevelopment Costs. Assignee hereby agrees to indemnify and defend Assignor, its successors and assigns, and its and their employees, agents, partners and officers (collectively the "Assignor Indemnified Parties") against, and hold the Assignor Indemnified Parties harmless from, any and all Losses and Liabilities arising out of or in any way related to a failure by Assignee, its successors or assigns to keep and perform, or a default by Assignee, its successors or assigns under, any of the Assumed Obligations. 5. Assignor hereby warrants and represents to Assignee as follows: (a) The Redevelopment Contract has not been modified or amended and is full force and effect as of the date hereof; and (b) To Assignor's knowledge, there is no Event of Default in existence under the Redevelopment Contract, nor is there in existence any state of facts or circumstances which, with the giving of notice or lapse of time or both, would constitute an Event of Default under the Redevelopment Contract. 6. Assignor will not enter into any modification or amendment of the Redevelopment Contract that would adversely affect the rights and interest of Assignee thereunder or the Assumed Obligations unless such modification or amendment is entered into by Assignee. Assignor will not enter into any agreement terminating the Redevelopment Contract without the prior written consent of Assignee. The foregoing notwithstanding, the Assignor reserves the right to enter into any modification and 374378v4 SJB SA285-84 amendment of the Redevelopment Contract that would not adversely affect the rights and interest of Assignee with respect to the Assumed Obligations, and further, Assignor reserves the right to partially terminate the Redevelopment Contract, to the extent such partial termination would not adversely affect the rights and interest of Assignee with respect to the Assumed Obligations, without Assignee's consent. 7. Assignor shall give and deliver a copy of any notice, demand or other communication which Assignor gives or delivers to, or receives from, City and/or the Authority under the Redevelopment Contract, and that relates to or may affect the rights and interest of Assignee under the Redevelopment Contract or the Assumed Obligations, to Assignee in the manner set forth in Section 10.5 of the Redevelopment Contract, addressed or delivered personally to Assignee as follows: WEA, LLC 33 South Sixth Street, Suite 4010 Minneapolis, MN 55402 Attn: Chris Culp With copy to: Jay F. Cook Law Offices of Jay F. Cook, P.L. 5150 N. Tamiami Trail, Suite 201 Naples, FL 34103; or at such other address as Assignee may, from time to time, designate by written notice to Assignor given or delivered in the manner set forth in Section 10.5 of the Redevelopment Contract. Assignee shall give and deliver a copy of any notice, demand or other communication which Assignee gives or delivers to, or receives from, City and/or the Authority under the Redevelopment Contract, and that relates to or may affect the rights and interest of Assignor under the Redevelopment Contract, delivered personally to Assignor or given or delivered in the manner set forth in Section 10.5 of the Redevelopment Contract to Assignor pursuant to the notice addresses set forth therein, or at such other address as Assignor may, from time to time, designate by written notice to Assignee. 8, This Assignment shall be binding on and inure to the benefit of the parties hereto and their successors and assigns. 9. This Assignment shall be governed by and construed in accordance with the laws of the State of Minnesota. 10. This Assignment may be executed in counterparts, which counterparts when considered together shall constitute a single, binding, valid and enforceable agreement. [Signature pages follow] 4 374378v4 SIB SA285-84 IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this Assignment and Assumption of Redevelopment Contract as of the date first above written. ASSIGNOR: DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership _1 Un STATE OF Ak R N '�A"-I ) ss. COUNTY OF k�en v\ 4 p ) Indiana a Mascia. Senior Vice President 11L The to ng instrument was acknowledged before me this day of _ QCTb&- regoi2010, by Pat Mascia, the Senior Vice President of Duke Realty Corporation, an Indiana corporation, as General Partner of Duke Realty Limited Partnership, an Indiana limited partnership, on behalf of the limited partnership. 374378v4 S1B SA285-84 Nota P blic ASSIGNEE: WEA, LLC, a Minnesota limited liability company By - Stephanie Y -Stephanie A. Walsh, Chief Manager STATE 0F1MVNES0T7t7 Cp plt ) S5. COUNTY OF-HENNfltIi— The foregoing instrument was acknowledged before me this C _ day of a C/ -T— 2010, by Stephanie A. Walsh, Chief Manager of WEA, LLC, a Minnesota limited liability company, on behalf of the company. Public "OFFICIAL SEA.c, RAQUEL GARC k THIS INSTRUMENT WAS DRAFTED BY: �5 Notary i"ublic, State of illinnis My Coinn is,ion Exoir-..=. Sc; t. 2t, 2012'1, ti ..:, p.; :c.?.,r.�.;,a`%:t3t,o00r,."a''. e,on;fF.•a";t4lkti ua Jay F. Cook Law Offices of Jay F. Cook, P.L. 5150 North Tamiami Trail, Suite 201 Naples, Florida 34103 3743780 SIB SA285.84 CONSENT ESTOPPEL AND AGREEMENT The undersigned, City of St, Louis Park, a Minnesota municipal corporation ("City"), and St. Louis Park Economic Development Authority, a public body corporate and politic (the "Authority"), hereby (i) consent to (A) the transfer of the Subject Property (as defined in the foregoing Assignment and Assumption of Redevelopment Contract) (the "Assignment and Assumption") by the Assignor named therein (the "Assignor") to the Assignee named therein (the "Assignee") , and (B) the execution and delivery by the Assignor and the Assignee of the Assignment and Assumption, and the terms and provisions thereof; (ii) agree that in the event of any inconsistency between the terms and provisions of the Assignment and Assumption and the terms and provisions of the Redevelopment Contract (as defined in the Assignment and Assumption), the terns and provisions of the Assignment and Assumption shall control; (iii) releases Assignor from all the Assumed Obligations as defined in the Assignment and Assumption; (iv) warrant, represent and certify to the Assignee as follows: (A) The Redevelopment Contract has not been modified or amended and is in full force and effect as of the date hereof; and (B) There is no Event of Default in existence, nor is there in existence any state of facts or circumstances which, with the giving of notice or lapse of time or both, would constitute an Event of Default under the Redevelopment Contract. City and the Authority further covenant and agree to and for the benefit of the Assignee as follows: (C) City and the Authority will not enter into any modification or amendment of the Redevelopment Contract that would affect the rights and interest of the Assignee under the Redevelopment Contract or the Assumed Obligations (as defined in the Assignment and Assumption) unless such modification or amendment is entered into by Assignee. City and the Authority will not enter into any agreement terminating the Redevelopment Contract without the prior written consent of Assignee, unless such termination does not affect the rights and interests of the Assignee. (D) If an Event of Default (as defined in the Redevelopment Contract) occurs, and such Event of Default does not relate to the Assumed Obligations (as defined in the Assignment and Assumption), City and the Authority may not and will not exercise their rights and remedies under the Redevelopment Contract arising or existing by reason of such Event of Default with respect to the Assignee or the Subject Property. (E) if the City and the Authority deliver any notice, demand or other communication to the Redeveloper under the Redevelopment Contract that relates to or may affect the rights and interest of the Assignee under the Redevelopment Contract or the Assumed Obligations, the City or Authority (as the case may be) shall deliver a copy of such notice, demand or communication to the Assignee in the manner set forth in Section 10.5 of the Redevelopment Contract, addressed or delivered personally to the Assignee as follows: WEA, LLC 33 South Sixth Street, Suite 4010 Minneapolis, MN 55402 Attn: Chris Culp 374378v4 SJB SA285-84 With copy to: Jay F. Cook Law Offices of Jay F. Cook, P.L. 5150 N. Tandami Trail, Suite 201 Naples, FL 34103; or at such other address as the Assignee may, from time to time, designate by written notice to City and the Authority given or delivered in the manner set forth in Section 10.5 of the Redevelopment Contract. 374378v4 S1B SA285-84 IN WrPNESS WHEREOF, City and the Authority have caused this Consent, Estoppel and Agreement to be duly executed as of this '�5day of yJ,- 2010. STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this 3o day of ;�CrKY, to , 2010, by Jeff Jacobs and Thomas Harmening, the Mayor and City Manager, respectively, of the City of St. Louis Park, a Minnesota municipal corporation, on behalf of the City. > N Notary Public ?�"��""'°-s_ Kristine Ann Luedke Notary Publlc -.,,,,,�t,,,� Minnesota fl ' liy Canmisslon Expires Jenuery 31,2013 3743780 SSB SA285.84 ST. LO IS PARK ECONOMIC l7F PMENT AUTHORITY By: STATE OF MINNESOTA ) )as. COUNTY OF HENNEPIN ) Its Its The foregoing instrument was acknowledged before me this 3`6 day of 45 2010, by Phil Finkelstein and Thomas Harmening, the President and Executive Director, respectively, of the Economic Development Authority of St. Louis Park, Minnesota, a public body corporate and politic, on behalf of the Authority. Notary Public !— 10 374378v5 SM SA285-84 wE Kristine Ann Luedke Notary Public Minnesota , " %"'•`•'`""My Commission Expires January 31,2X013