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4646 Dakota Street SE
Prior Lake, MN 55372
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CITY COUNCIL AGENDA REPORT
MEETING DATE: JULY 13, 2015
AGENDA#: 8B
PREPARED BY: DAN ROGNESS, COMMUNITY & ECONOMIC DEVELOPMENT DIRECTOR
PRESENTED BY: DAN ROGNESS
AGENDA ITEM: CONSIDER APPROVAL OF A RESOLUTION APPROVING A DEVELOP-
MENT AGREEMENT WITH PRIOR LAKE LEASED HOUSING ASSOCIATES
I, LLLP (GATEWAY REDEVELOPMENT) RELATED TO TAX INCREMENT FI-
NANCING
DISCUSSION: Introduction
The purpose of this agenda item is to consider approval of a resolution that ap-
proves a Development Agreement for tax increment financing with Prior Lake
Leased Housing Associates I, LLLP. These actions include: (1) modifying the
existing Municipal Development District No. 1; (2) establishing Tax Increment Fi-
nancing (TIF) District No. 1-5; and (3) approving a TIF Plan.
History
On May 11, the City Council held a public hearing related to: (1) modifying the
existing Municipal Development District No. 1; (2) establishing TIF District No. 1-
5; and (3) approving a TIF Plan for a Dominium 170-unit multifamily housing pro-
ject. The Council approved these three items with the final approval of the TIF
Agreement to follow at a future meeting date. Previous land use approvals were
also finalized with the Metropolitan Council's approval of the city's Comprehen-
sive Plan amendment on May 27.
Current Circumstances
An attorney with Briggs & Morgan drafted the Development Agreement related to
the Dominium redevelopment project. All parties have reached agreement, which
establishes the responsibilities of the developer and city, as well as the terms and
conditions in order for TIF to be provided to the affordable housing project. The
main points of this agreement include the following:
1. The project is defined as the acquisition, construction and equipping of a
170-unit multifamily senior housing development.
2. Tax increments are defined as 95% of the available tax increments de-
rived from the development property in a Housing TIF District.
3. The term of the TIF Note is for 18 years ending with payments on Febru-
ary 1, 2036; the interest rate is at 3.0 percent.
4. The developer understands that the projected tax increments are esti-
mates only with no obligation by the city to pay the full Note principal.
5. The project must meet certain low and moderate income requirements (at
least 40% of units must be occupied by persons at/below 60% of area
median income for the life of the TIF).
6. Dominium must begin the project on/before October 31, 2015 and be sub-
stantially completed by February 28, 2017 (16 months).
Conclusion
Staff has worked closely with the attorney of Briggs& Morgan and Dominium staff
to develop this final agreement for tax increment financing assistance. It was
drafted by Mary Ippel of Briggs & Morgan, who works with TIF agreements very
often on behalf of cities.
ISSUES: The agreement establishes terms and conditions as previously approved by the
City Council, including the 18-year TIF term and total TIF assistance
($1,637,000). The final bond agreement will be approved later by the City Council
at a subsequent meeting.
ALTERNATIVES: 1. Motion and a second to approve a resolution approving a Development
Agreement with Prior Lake Leased Housing Associates I, LLLP (Gateway
Redevelopment) related to Tax Increment Financing.
2. Motion and a second to deny approval of a resolution approving a Devel-
opment Agreement with Prior Lake Leased Housing Associates I, LLLP.
3. Motion and a second to table action and ask City staff to provide additional
information as requested by the Council.
RECOMMENDED Motion and a second to approve Alternative#1.
MOTION:
ATTACHMENTS: 1. Development Agreement
2. Estimated TIF Revenue for TIF Note
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RESOLUTION 15-xx
A RESOLUTION APPROVING A DEVELOPMENT AGREEMENT WITH PRIOR LAKE LEASED
HOUSING ASSOCIATES I, LLLP (GATEWAY REDEVELOPMENT) RELATED TO TAX INCREMENT
FINANCING
Motion By: Second By:
WHEREAS, It Prior Lake Leased Housing Associates I, LLLP (the "Developer") has requested the City of
Prior Lake, Minnesota (the "City") to assist with the financing of certain costs incurred in
connection with the construction of an approximately 170-unit multifamily senior housing
development in the City by the Developer; and
WHEREAS, The Developer and the City have determined to enter into a Development Agreement providing
for the City's tax increment financing assistance for the Project(the"Development Agreement").
NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE,
MINNESOTA as follows:
1. The recitals set forth above are incorporated herein.
2. The City Council hereby approves the Development Agreement in substantially the form submitted, and
the Mayor and City Manager are hereby authorized and directed to execute the Development
Agreement on behalf of the City.
3. The approval hereby given to the Development Agreement 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 Development Agreement. The execution of the Development Agreement
by the appropriate officer or officers of the City shall be conclusive evidence of the approval of the
Development Agreement in accordance with the terms thereof.
PASSED AND ADOPTED THIS 13th DAY OF JULY, 2015.
VOTE Hedberg Keeney McGuire Morton Thompson
Aye ❑ ❑ ❑ ❑ ❑
Nay ❑ ❑ ❑ ❑ ❑
Absent ❑ ❑ ❑ ❑ ❑
Abstain ❑ ❑ ❑ ❑ ❑
Frank Boyles, City Manager
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF PRIOR LAKE, MINNESOTA
AND
PRIOR LAKE LEASED HOUSING ASSOCIATES I, LLLP
(GATEWAY PROJECT)
This document drafted by: BRIGGS AND MORGAN
Professional Association
W2200 First National Bank Building
St. Paul, Minnesota 55101
7038763v2
Table of Contents
Page
ARTICLE I. DEFINITIONS 2
Section 1.1 Definitions 2
ARTICLE II. REPRESENTATIONS AND WARRANTIES 4
Section 2.1 Representations and Warranties of the City 4
Section 2.2 Representations and Warranties of the Developer 4
ARTICLE III. UNDERTAKINGS BY DEVELOPER AND CITY 6
Section 3.1 Site Improvements 6
Section 3.2 Reimbursement: Tax Increment Revenue Note 6
Section 3.3 Market Value 7
Section 3.4 Compliance with Low and Moderate Income Requirements 7
Section 3.5 Real Property Taxes 8
ARTICLE IV. EVENTS OF DEFAULT 9
Section 4.1 Events of Default Defined 9
Section 4.2 Remedies on Default 9
Section 4.3 No Remedy Exclusive 10
Section 4.4 No Implied Waiver 10
Section 4.5 Agreement to Pay Attorney's Fees and Expenses 10
Section 4.6 Indemnification of City 10
ARTICLE V. ADDITIONAL PROVISIONS 12
Section 5.1 Restrictions on Use 12
Section 5.2 Conflicts of Interest 12
Section 5.3 Titles of Articles and Sections 12
Section 5.4 Notices and Demands 12
Section 5.5 Counterparts 13
Section 5.6 Law Governing 13
Section 5.7 Expiration 13
Section 5.8 Provisions Surviving Rescission or Expiration 13
Section 5.9 Assignability of Agreement and Note 13
EXHIBIT A Description of Development Property A-1
EXHIBIT B Form of Tax Increment Note B-1
EXHIBIT C Site Improvements C-1
EXHIBIT D Compliance Certificate D-1
7038763v2
DEVELOPMENT AGREEMENT
THIS AGREEMENT, made as of the day of , 2015, by and
between the City of Prior Lake, Minnesota (the "City"), a municipal corporation organized and
existing under the laws of the State of Minnesota and Prior Lake Leased Housing Associates I,
LLLP (the "Developer"), a Minnesota limited liability limited partnership.
WITNESSETH:
WHEREAS, pursuant to Minnesota Statutes, Section 469.124 through 469.134, the City
has formed Municipal Development District No. 1 (the "Development District") and has adopted
a development program therefor(the "Development Program"); and
WHEREAS, pursuant to the provisions of Minnesota Statutes, Section 469.174 through
469.1794, as amended (hereinafter, the "Tax Increment Act"), the City has created within the
Development District, Tax Increment Financing District No. 1-5 (the "Tax Increment District"),
and has adopted a tax increment financing plan therefor(the"Tax Increment Plan")which provides
for the use of tax increment financing in connection with certain development within the
Development District; and
WHEREAS, in order to achieve the objectives of the Development Program and
particularly to make the land in the Development District available for development by private
enterprise in conformance with the Development Program, the City has determined to assist the
Developer with the financing of certain costs of a Project(as hereinafter defined)to be constructed
within the Tax Increment District as more particularly set forth in this Agreement; and
WHEREAS, the City believes that the development and construction of the Project, and
fulfillment of this Agreement are vital and are in the best interests of the City, the health, safety,
morals and welfare of residents of the City, and 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
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:
7038763v2
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 Agreement, as the same may be from time to time modified,
amended or supplemented;
Business Day 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;
City means the City of Prior Lake, Minnesota;
Compliance Certificate means the Compliance Certificate in substantially the form
attached hereto as Exhibit E.
Contract for Development means the Contract for Development of Land as a Planned Unit
Development in the City of Prior Lake, Minnesota, to be known as Gateway Redevelopment,
between the City and the Developer;
County means Scott County, Minnesota;
Developer means Prior Lake Leased Housing Associates I, LLLP, its successors and
assigns;
Development District means the real property described in the Development Program for
Municipal Development District No. 1;
Development Program means the development program approved in connection with the
Development District;
Development Property means the real property legally described in Exhibit A attached to
this Agreement;
Event of Default means any of the events described in Section 4.1 hereof;
Note Payment Date means August 1,2017, and each February 1 and August 1 of each year
thereafter to and including February 1,2036;provided,that if any such Note Payment Date should
not be a Business Day,the Note Payment Date shall be the next succeeding Business Day;
Person means any individual, corporation, partnership, joint venture, association, joint
stock company, trust, unincorporated organization, or government or any agency or political
subdivision thereof;
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Prime Rate means the rate of interest from time to time publicly announced by U.S. Bank
National Association in St.Paul,Minnesota,as its "prime rate"or"reference rate" or any successor
rate, which rate shall change as and when that rate or successor rate changes;
Project means the acquisition, construction and equipping of a 170-unit multifamily senior
housing development to be located on the Development Property;
Site Improvements means the site improvements to be undertaken on the Development
Property as identified on Exhibit C attached hereto;
State means the State of Minnesota;
Tax Increment Act means Minnesota Statutes, Sections 469.174 through 469.1794, as
amended;
Tax Increment District means Tax Increment Financing District No. 1-5,located within the
Development District, which was qualified as a housing district under the Tax Increment Act;
Tax Increment Financing Plan means the tax increment financing plan approved for the
Tax Increment District by the City Council;
Tax Increment Note or Note means the Tax Increment Revenue Note(Gateway Project)to
be executed by the City and delivered to the Developer pursuant to Article III hereof, the form of
which is attached hereto as Exhibit B;
Tax Increments means 95%of the tax increments derived from the Development Property
which have been received and retained by the City in accordance with the provisions of Minnesota
Statutes, Section 469.177;
Termination Date means the earlier of(i)February 1, 2036, (ii)the date the Tax Increment
Note is paid in full, (iii) the date on which the Tax Increment District expires or is otherwise
terminated,or(iv)the date this Agreement is terminated or rescinded in accordance with its terms;
and
Unavoidable Delays means delays,outside the control of the party claiming its occurrence,
which are the direct result of strikes, other labor troubles, unusually severe or prolonged bad
weather, acts of God, fire or other casualty to the Project, delays in delivery of materials for the
construction of the Project,the soil conditions of the Development Property,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)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 has the power to enter into this Agreement
and carry out its obligations hereunder.
(2) Based on the representation of the Developer set forth in Section 3.4 below,the Tax
Increment District is a "housing district" within the meaning of Minnesota Statutes, Section
469.174, Subdivision 11, and was created, adopted and approved in accordance with the terms of
the Tax Increment Act.
(3) The development contemplated by this Agreement is in conformance with the
development objectives set forth in the Development Program.
(4) To finance certain costs within the Tax Increment District, the City proposes,
subject to the further provisions of this Agreement, to apply Tax Increments to reimburse the
Developer for certain Site Improvements in connection with the Project as further provided in this
Agreement.
(5) The City makes no representation or warranty, either expressed or implied, as to
the Development Property or its condition or the soil conditions thereon, or that the Development
Property shall be suitable for the Developer's purposes or needs.
Section 2.2 Representations and Warranties of the Developer. The Developer makes
the following representations and warranties:
(1) The Developer is a Minnesota limited liability limited partnership and has power
to enter into this Agreement and to perform its obligations hereunder and is not in violation of its
certificate and agreement of limited partnership or the laws of the State.
(2) The Developer shall cause the Project to be constructed in accordance with the
terms of this Agreement, the Development Program, 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).
(3) 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.
(4) The Developer will use its best efforts to 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 balance of the Project may be lawfully constructed.
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(5) 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 provision 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.
(6) The Developer will cooperate with the City with respect to any litigation
commenced with respect to the Project.
(7) The Developer will cooperate with the City in resolution of any traffic, parking,
trash removal or public safety problems which may arise in connection with the construction of
the Project.
(8) Construction of the Project will commence on or before October 31, 2015 and
barring Unavoidable Delays the Project will be substantially completed by February 28, 2017.
(9) The Developer acknowledges that Tax Increment projections contained in the Tax
Increment Plan are estimates only and the Developer acknowledges that it shall place no reliance
on the amount of projected Tax Increments and the sufficiency of such Tax Increments to
reimburse the Developer for the costs of the Site Improvements as provided in Article III.
(10) The Developer shall pay all costs related to any relocation that may be provided or
required to businesses located within the Development Property as a result of the Project.
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ARTICLE III.
UNDERTAKINGS BY DEVELOPER AND CITY
Section 3.1 Site Improvements. The costs of the Site Improvements shall be paid by
the Developer. The City shall reimburse the Developer for the lesser of$1,637,000 or the costs of
the Site Improvements actually paid by the Developer (the "Reimbursement Amount") as further
provided in Section 3.2 hereof.
Section 3.2 Reimbursement: Tax Increment Revenue Note. The City shall reimburse
the Developer the Reimbursement Amount identified in Section 3.1 through the issuance of the
City's Tax Increment Revenue Note in substantially the form attached to this Agreement as Exhibit
B, subject to the following conditions:
(1) The Note shall be dated, issued and delivered as of the date of execution of this
Agreement. The Developer shall submit paid invoices for Site Improvements in an amount not
less than the Reimbursement Amount.
(2) The unpaid principal amount of the Note shall bear simple, non-compounding
interest from the date that the City has determined the paid invoices are in compliance with the
terms of the Development Agreement, at 3%per annum. Interest shall be computed on the basis
of a 360 day year consisting of twelve (12) 30-day months.
(3) The principal amount of the Note and the interest thereon shall be payable solely
from the Tax Increments.
(4) On each Note Payment Date and subject to the provisions of the Note and Section
3.3, the City shall pay, against the principal and interest outstanding on the Note, Tax Increments
received by the City during the preceding 6 months. All such payments shall be applied first to
accrued interest and then to reduce the principal of the Note.
(5) The Note shall be a special and limited obligation of the City and not a general
obligation of the City, and only Tax Increments shall be used to pay the principal and interest on
the Note. If, on any Note Payment Date, the Tax Increments for the payment of the accrued and
unpaid interest on the Note are insufficient for such purposes, the difference shall be carried
forward, without interest accruing thereon, and shall be paid if and to the extent that on a future
Note Payment Date there are Tax Increments in excess of the amounts needed to pay the accrued
interest then due on the Note.
(6) The City's obligation to make payments on the Note on any Note Payment Date or
any date thereafter shall be conditioned upon the requirement that (A)there shall not at that time
be an Event of Default that has occurred and is continuing under this Agreement and (B) this
Agreement shall not have been rescinded pursuant to Section 4.2(b).
(7) The Note shall be governed by and payable pursuant to the additional terms thereof,
as set forth in Exhibit B. In the event of any conflict between the terms of the Note and the terms
of this Section 3.2, the terms of the Note shall govern. The issuance of the Note pursuant and
subject to the terms of this Agreement, and the taking by the City of such additional actions as
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bond counsel for the Note may require in connection therewith, are hereby authorized and
approved by the City.
Section 3.3 Market Value.
(1) The Developer will not seek a reduction in the Market Value (as defined in
Minnesota Statutes, Section 273.02)for the tax collection years of 2032 through 2036. In the event
that the Developer obtains a reduction in Market Value that results in the City having to make a
payment to the County(the "County Payment")for the tax collection years of 2017 through 2031,
the Developer agrees that:
(a) If the TIF Note remains outstanding, the next Tax Increments to be paid to
the Developer shall be reduced by the County Payment, and
(b) If the TIF Note is no longer outstanding,Developer shall pay the amount of
the County Payment to the City within thirty (30) days after written notice from the City
as to the amount of the County Payment.
Section 3.4 Compliance with Low and Moderate Income Requirements.
(1) The City and the Developer understand and agree that the Tax Increment District
will constitute a "housing district" under Section 469.174, Subd. 11 of the Tax Increment Act.
Accordingly, in compliance with Section 469.1761, Subd. 3 of the Tax Increment Act, the
Developer agrees that the Project must satisfy,or be treated as satisfying,the income requirements
for a qualified residential rental project as defined in Section 142(d)of the Internal Revenue Code.
The parties further agree that no more than 20% of the square footage of the Project(which is the
only building receiving assistance from Tax Increments) may consist of commercial, retail, or
other nonresidential uses. The Developer must meet the above requirements as follows:
(a) At least 40% of the residential units in the Project must be occupied or
available for occupancy by persons whose incomes do not exceed 60% of the County
median income; and
(b) The limits described in clause (A) must be satisfied commencing with the
date on which at least 10%of the units in the Project are occupied and continuing through
the Termination Date. Income for occupants of units described in clause (A) shall be
adjusted for family size in accordance with Section 142(d) of the Internal Revenue Code
and related regulations.
(2) On or before each January 1 and July 1,commencing on July 1,2017,the Developer
or an agent of the Developer must deliver or cause to be delivered to the City a Compliance
Certificate executed by the Developer covering the preceding six months together with written
evidence satisfactory to the City of compliance with the covenants in this Section. This evidence
must include a statement of the household income of each of qualifying renter, a written
determination that each qualifying renter's household income falls within the qualifying limits of
this Section (and Section 142(d) of the Internal Revenue Code), and certification that the income
documentation is correct and accurate (and that the determination of qualification was made in
compliance with Section 142(d) of the Internal Revenue Code). The City may review, upon
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request, all documentation supporting the Developer submissions and statements. In determining
compliance with this Section, the Developer must use the County median incomes for the year in
which the payment is due on the TIF Note, as promulgated by the Minnesota Housing Finance
Agency based on the area median incomes established by the United States Department of Housing
and Urban Development.
Section 3.5 Real Property Taxes. Prior to the Termination Date, the Developer shall
pay all real property taxes payable with respect to all and any parts of the Development Property
acquired and owned by it and pursuant to the provisions of the Assessment Agreement until the
Developer's obligations have been assumed by any other person pursuant to the provisions of this
Agreement or title to the Development Property is vested in another person.
The Developer agrees that prior to the Termination Date:
(1) 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
Development 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 Development Property, including delinquent tax proceedings; provided, however,
"tax statute" does not include any local ordinance or resolution levying a tax;
(2) 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 Development 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 Development Property; provided, however, "tax statute" does
not include any local ordinance or resolution levying a tax;
(3) It will not seek any tax deferral or abatement, either presently or prospectively
authorized under Minnesota Statutes, Section 469.1813, or any other State or federal law, of the
ad valorem property taxation of the Development Property between the date of execution of this
Agreement and the Termination Date.
Notwithstanding the foregoing, nothing in this Section 3.5 shall be interpreted to limit the
Developer's rights under Section 3.3.
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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:
(a) Failure by the Developer to timely pay any ad valorem real property taxes
assessed or other City charges with respect to the Development Property while such
property is owned by Developer.
(b) Failure by the Developer to cause the construction of the Project to be
completed pursuant to the terms, conditions and limitations of this Agreement or the
Contract for Development.
(c) Failure of the Developer to observe or perform any other covenant,
condition, obligation or agreement on its part to be observed or performed under this
Agreement or the Contract for Development.
(d) The holder of any mortgage on the Development Property or any
improvements thereon, or any portion thereof, commences foreclosure proceedings as a
result of any default under the applicable mortgage documents.
(e) If the Developer shall
(A) file any petition in bankruptcy or for any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar relief
under the United States Bankruptcy Act of 1978, as amended or under any similar
federal or state law; or
(B) make an assignment for the benefit of its creditors; or
(C) admit in writing its inability to pay its debts generally as they
become due; or
(D) be adjudicated a bankrupt or insolvent; or if a petition or answer
proposing the adjudication of the Developer, as a bankrupt or its reorganization
under any present or future federal bankruptcy act or any similar federal or state
law shall be filed in any court and such petition or answer shall not be discharged
or denied within sixty (60) days after the filing thereof; or a receiver, trustee or
liquidator of the Developer, or of the Project, or part thereof, shall be appointed in
any proceeding brought against the Developer, and shall not be discharged within
sixty (60) days after such appointment, or if the Developer, shall consent to or
acquiesce in such appointment.
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
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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. 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 by the City, that the Developer
will cure the Event of Default and continue its performance under this Agreement, and no
interest shall accrue on the Note while performance is suspended in accordance with this
Section 4.2.
(b) The City may cancel and rescind the 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 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 any 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
it shall, on demand therefor, pay to the City the reasonable fees of such attorneys and such other
expenses so incurred by the City.
Section 4.6 Indemnification of City.
(1) The Developer releases from and covenants and agrees that the City, its governing
body members, officers, agents, including the independent contractors, consultants and legal
counsel, servants and employees thereof(hereinafter, for purposes of this Section, collectively the
"Indemnified Parties") shall not be liable for and agrees to indemnify and hold harmless the
Indemnified Parties 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, provided that the foregoing
indemnification shall not be effective for any actions of the Indemnified Parties that are not
contemplated by this Agreement.
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(2) Except for any willful misrepresentation or any willful or wanton misconduct of
the Indemnified Parties, the Developer agrees to protect and defend the Indemnified Parties, now
and forever,and further agrees to hold the aforesaid harmless from any claim,demand, suit,action
or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising
from the actions or inactions of the Developer(or if other persons acting on its behalf or under its
direction or control) under this Agreement, or the transactions contemplated hereby or the
acquisition, construction, installation, ownership, and operation of the Project; provided, that this
indemnification shall not apply to the warranties made or obligations undertaken by the City in
this Agreement or to any actions undertaken by the City which are not contemplated by this
Agreement but shall, in any event and without regard to any fault on the part of the City, apply to
any pecuniary loss or penalty (including interest thereon from the date the loss is incurred or
penalty is paid by the City at a rate equal to the Prime Rate) as a result of the Project causing the
Tax Increment District to not qualify or cease to qualify as a "housing district" under Section
469.174, Subdivision 11, of the Act and Section 469.176, Subdivision 4c. or to violate limitations
as to the use of Tax Increments as set forth in Section 469.176, Subdivision 4c.
(3) 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, as the case may be.
(4) The City shall have no responsibilities related to costs or services related to any
relocation that may be provided or required to businesses located within the Development Property
as a result of the Project.
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ARTICLE V.
ADDITIONAL PROVISIONS
Section 5.1 Restrictions on Use. The Developer agrees for itself, its successor and
assigns and every successor in interest to the Development Property, or any part thereof, that the
Developer and its successors and assigns shall operate, or cause to be operated, the Project as a
housing facility and shall devote the Development Property to, and in accordance with, the uses
specified in this Agreement.
Section 5.2 Conflicts of Interest. No member of the governing body or other official of
the City shall have any financial interest, direct or indirect, in this Agreement, the Development
Property or the Project, or any contract, agreement or other transaction contemplated to occur or
be undertaken thereunder or with respect thereto,nor shall any such member of the governing body
or other official participate in any decision relating to the 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 5.3 Titles of Articles and Sections. Any titles of the several parts, articles and
sections of the Agreement are inserted for convenience of reference only and shall be disregarded
in construing or interpreting any of its provisions.
Section 5.4 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
(a) in the case of the Developer is addressed to or delivered personally to:
Prior Lake Leased Housing Associates I, LLLP
2905 Northwest Boulevard
Suite 1500
Plymouth, MN 55441
Attn: Mark S. Moorhouse and Ron Mehl
(b) in the case of the City is addressed to or delivered personally to the City at:
City of Prior Lake, Minnesota
Prior Lake City Hall
4646 Dakota Street SE
Prior Lake, Minnesota 55372-1176
Attn: Community Development Director
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.
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Section 5.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 5.6 Law Governing. This Agreement will be governed and construed in
accordance with the laws of the State.
Section 5.7 Expiration. This Agreement shall expire on the Termination Date.
Section 5.8 Provisions Surviving Rescission or Expiration. Sections 3.3, 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
Section 5.9 Assignability of Agreement and Note. This Agreement may be assigned
only with the consent of the City which consent shall not be unreasonably withheld. The Note
may only be assigned pursuant to the terms of the Note.
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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 its seal to be hereunto duly affixed, and the Developer has caused this
Agreement to be duly executed on its behalf, on or as of the date first above written.
CITY OF PRIOR LAKE, MINNESOTA
By
Its Mayor
By
Its Manager
(SEAL)
This is a signature page to the Development Agreement by and between the City of Prior Lake and
Prior Lake Leased Housing Associates I, LLLP.
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Prior Lake Leased Housing Associates I, LLLP
By
Its
This is a signature page to the Development Agreement by and between the City of Prior Lake and
Prior Lake Leased Housing Associates I, LLLP.
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EXHIBIT A
Description of Development Property
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EXHIBIT B
Form of Tax Increment Note
No. R-1 $
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF SCOTT
CITY OF PRIOR LAKE
TAX INCREMENT REVENUE NOTE
(GATEWAY PROJECT)
The City of Prior Lake, Minnesota(the "City"),hereby acknowledges itself to be indebted
and, for value received, hereby promises to pay the amounts hereinafter described (the "Payment
Amounts") to Prior Lake Leased Housing Associates I, LLLP (the "Developer") or its registered
assigns(the "Registered Owner"),but only in the manner,at the times,from the sources of revenue,
and to the extent hereinafter provided.
The principal amount of this Note shall equal from time to time the principal amount stated
above, as reduced to the extent that such principal installments shall have been paid in whole or in
part pursuant to the terms hereof; provided that the sum of the principal amount listed above shall
in no event exceed $1,637,000 as provided in that certain Development Agreement, dated as of
, 2015 as the same may be amended from time to time (the "Development
Agreement"), by and between the City and the Developer. The unpaid principal amount hereof
shall bear interest from the date that the Developer has submitted to the City and the City has
determined that the closing statement,purchase agreement and paid invoices in the amount of the
Reimbursement Amount (as defined in the Development Agreement) are in compliance with the
terms of the Development Agreement at the simple non-compounded rate of three percent (3%)
per annum. Interest shall be computed on the basis of a 360 day year consisting of twelve(12)30-
day months.
The amounts due under this Note shall be payable on August 1,2017,and on each February
1 and August 1 thereafter to and including February 1,2036,or,if the first should not be a Business
Day(as defined in the Development Agreement),the next succeeding Business Day(the "Payment
Dates"). On each Payment Date, subject to the provisions of Section 3.3 of the Development
Agreement,the City shall pay by check or draft mailed to the person that was the Registered Owner
of this Note at the close of the last business day of the City preceding such Payment Date an
amount equal to the Tax Increments(hereinafter defined)received by the City during the six month
period preceding such Payment Date. All payments made by the City under this Note shall first
be applied to accrued interest and then to principal.
The Payment Amounts due hereon shall be payable solely from 95%of tax increments(the
"Tax Increments") from the Development Property within the City's Tax Increment Financing
District No. 1-5 (the "Tax Increment District") within its Municipal Development District No. 1
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which are paid to the City and which the City is entitled to retain pursuant to the provisions of
Minnesota Statutes, Sections 469.174 through 469.1794, as the same may be amended or
supplemented from time to time (the "Tax Increment Act"). This Note shall terminate and be of
no further force and effect following the last Payment Date defined above,on any date upon which
the City shall have terminated the Development Agreement under Section 4.2(b)thereof, the date
the Tax Increment District is terminated, or on the date that all principal and interest payable
hereunder shall have been paid in full, whichever occurs earliest.
The City makes no representation or covenant, express or implied,that the Tax Increments
will be sufficient to pay,in whole or in part,the amounts which are or may become due and payable
hereunder.
The City's payment obligations hereunder shall be further conditioned on the fact that no
Event of Default under the Development Agreement shall have occurred and be continuing at the
time payment is otherwise due hereunder, but such unpaid amounts shall become payable if said
Event of Default shall thereafter have been cured; and, further, if pursuant to the occurrence of an
Event of Default under the Development Agreement the City elects to cancel and rescind the
Development Agreement, the City shall have no further debt or obligation under this Note
whatsoever. Reference is hereby made to all of the provisions of the Development Agreement,
including without limitation Section 3.2 thereof, for a fuller statement of the rights and obligations
of the City to pay the principal of this Note, and said provisions are hereby incorporated into this
Note as though set out in full herein.
This Note is a special, limited revenue obligation and not a general obligation of the City
and is payable by the City only from the sources and subject to the qualifications stated or
referenced herein. This Note is not a general obligation of the City and neither the full faith and
credit nor the taxing powers of the City are pledged to the payment of the principal of this Note
and no property or other asset of the City, save and except the above-referenced Tax Increments,
is or shall be a source of payment of the City's obligations hereunder.
This Note is issued by the City in aid of financing a project pursuant to and in full
conformity with the Constitution and laws of the State of Minnesota, including the Tax Increment
Act.
This Note is subject to prepayment in immediately available funds on any date at the option
of the City, in whole or in part and without penalty.
This Note may be assigned only with the consent of the City which consent shall not be
unreasonably withheld. In order to assign the Note, the assignee shall surrender the same to the
City either in exchange for a new fully registered note or for transfer of this Note on the registration
records for the Note maintained by the City. Each permitted assignee shall take this Note subject
to the foregoing conditions and subject to all provisions stated or referenced herein.
IT IS HEREBY CERTIFIED AND RECITED that all acts,conditions,and things required
by the Constitution and laws of the State of Minnesota to be done, to have happened, and to be
performed precedent to and in the issuance of this Note have been done,have happened, and have
been performed in regular and due form,time, and manner as required by law; and that this Note,
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together with all other indebtedness of the City outstanding on the date hereof and on the date of
its actual issuance and delivery, does not cause the indebtedness of the City to exceed any
constitutional or statutory limitation thereon.
IN WITNESS WHEREOF, City of Prior Lake, Minnesota, by its City Council,has caused
this Note to be executed by the manual signatures of its Mayor and Manager and has caused this
Note to be dated as of .
DO NOT EXECUTE UNTIL PAID INVOICES FOR SITE IMPROVEMENTS ARE
GIVEN TO THE CITY—REFER TO SECTION 3.2(1).
Manager Mayor
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CERTIFICATION OF REGISTRATION
It is hereby certified that the foregoing Note was registered in the name of Prior Lake
Leased Housing Associates I, LLLP, and that, at the request of the Registered Owner of this Note,
the undersigned has this day registered the Note in the name of such Registered Owner, as
indicated in the registration blank below, on the books kept by the undersigned for such purposes.
NAME AND ADDRESS OF DATE OF SIGNATURE OF
REGISTERED OWNER REGISTRATION CITY MANAGER
Prior Lake Leased Housing Associates
I, LLLP
2905 Northwest Boulevard
Suite 150
Plymouth, MN 55441
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EXHIBIT C
Site Improvements
Earthwork/excavation
Soils test and environmental studies
Environmental remediation
Building demolition and clearance
Streets and roads
Curb and gutter
Sidewalks and trails
Soils correction
Storm water retention systems
Pilings/Caissons
Utilities (sanitary sewer, storm sewer, and water),
including utility relocations
Parking improvements
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EXHIBIT D
Compliance Certificate
The undersigned Prior Lake Leased Housing Associates I, LLLP, does hereby certify that
as of the date of this Certificate not less than 40% of the residential units in the Gateway Project
located at in Prior Lake, Minnesota (the "Project") are
occupied by individuals whose income is 60%or less of the Scott County median income.
Dated this day of , 201_
PRIOR LAKE LEASED HOUSING
ASSOCIATES I, LLLP
By
Its
[Attach household income verification required by Section 3.4.]
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SCENARIO A(with NO additional payments of principal from TIF 6-1)
City of Prior Lake
Tax Increment Financing District No.1-5
Tax Increment Revenue Note/Interfund Loan
Gateway Center _
Interest Start Date: 12/1/2015
Costs Reimbursed: 1,637,000 I
Interest Rate: 3.000%
First Payment: 8/1/2017
Last Payment: 2/1/2036
Available Available
Taxes Semi-Annual Reimbursible Annual Tax Annual Tax
Payable Payment Increment Costs Increment Increment Calendar Year of
Year Date Interest Principal P+I Available Outstanding from TIF 1-5 from TIF 6-1 Payment Year District
2017 8/1/2017 26,015 - 26,015 26,015 1,637,000 52,030 - 26,015 2017 1
2/1/2018 24,555 1,460 26,015 26,015 1,635,540 85,185 '2018 2
2018 8/1/2018 24,533 34,637 59,170 59,170 1,600,903 118,340 - 118,669 2019 3
2/1/2019 24,014 35,156 59,170 59,170 1,565,747 119,331 2020 4
2019 8/1/2019 23,486 36,013 59,500 59,500 1,529,734 118,999 - 119,995 2021 5
2/1/2020 22,946 36,554 59,500 59,500 1,493,180 120,663 2022 6
2020 8/1/2020 22,398 37,433 59,831 59,831 1,455,747 119,662 . - 121,335 2023 7
2/1/2021 21,836 37,995 59,831 59,831 1,417,752 122,009 2024 8
2021 8/1/2021 21,266 38,898 ' 60,164 60,164 1,378,854 120,328 - 122,687 . 2025 9
2/1/2022 20,683. 39,481 60,164 60,164 1,339,373 123,369 2026 10
2022 8/1/2022 . 20,091 40,409 60,499 60,499 1,298,964 120,998 • - 124,054 • 2027 11
2/1/2023 19,484 41,015 50,499 60,499 1,257,949 124,742 2028 12
2023 8/1/2023 18,869 .41;967 ' 60,836 60,836 1,215,983 121,672 - 125,434 2029 13
2/1/2024 18,240 42,596 60,836 60,836 1,173,387 126,129 2030 14
2024 8/1/2024 17,601 43,573 61,174 61,174 1,129,814 122,347 - 126,828 2031 15
2/1/2025 16,947 44,226 61,174 61,174 1,085,587 127,530 2032 16
2025 8/1/2025• 16,284 45,230 61,514 61,514 1,040,358 123,027 - 128,236 2033 17
2/1/2026 15,605 45,908 61,514 61,514 994,450 128,945 2034 18
2026 8/1/2026 14,917 46,938 61,855 . 61,855 947,511 123,710 - 64,650 2035
2/1/2027 14,213 47,643 61,855 61,855 899,869 2,155,804 TOTAL
2027 8/1/2027 13,498 48,700 62,198 62,198 851,168 124,397 -
2/1/2028 12,768 49,431 62,198 62,198 801,737
2028 8/1/2028 12,026 50,517 62,543 62,543 751,220 125,087 -
2/1/2029 11,268 51,275 62,543 62,543 699,945 .
2029 8/1/2029 10,499 52,391 62,890 62,890 • 647,554 125,781-
2/1/2030
25,7812/1/2030 9,713 53,177 62,890 62,890 594,377
2030 8/1/2030 8,916 54,323 63,239 63,239 540,054 126,477
2/1/2031 8,101 55,138 63,239 63,239 484,916
2031 8/1/2031 7,274 56,315 63,589 63,589 428,601 127,178
2/1/2032 6,429 57,160 63,589 63,589 371,441
2032 8/1/2032 5,572 58,369 63,941 63,941 313,072 127,882
2/1/2033 4,696 59,245 63,941 63,941. 253,827 .
2033 8/1/2033 3,807 60,487 64,295 64,295 193,340 128,589
2/1/2034 2,900 61,394 64,295 54,295 131,945
2034 8/1/2034 1,979 62,671 64,650 64,650 69,274 129,300
2/1/2035 1,039 63,611 64,650 64,650 5,663 •
2035 '8/1/2035 85 5,663 5,748 • 65,007 - 130,015
2/1/2036 - - 65,007
TOTAL 524,553 1,637,000 2,161,553 2,285,819 2,285,819 -
Available annual tax increment=95%of tax increment distributed from the County to the City. Schedule does not include
accrued interest.
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NORTHLAND STRATEGBrS
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