HomeMy WebLinkAbout9A - Shepherd's Path Senior Housing
AGENDA ITEM:
DISCUSSION:
16200 Eagle Creek Avenue S.E.
Prior lake, MN 55372-1714
CITY COUNCIL AGENDA REPORT
August 7, 2006
9A
PAUL SNOOK, ECONOMIC DEVELOPMENT DIRECTOR
CONSIDER APPROVAL OF A RESOLUTION APPROVING AN
ADMINISTRATIVE AMENDMENT TO THE TAX INCREMENT
FINANCING PLAN FOR TAX INCREMENT FINANCING DISTRICT
NO. 6-1, AND AUTHORIZING THE EXECUTION OF A TAX
INCREMENT ASSISTANCE AGREEMENT BY AND BETWEEN THE
CITY OF PRIOR LAKE AND SHEPHERD'S PATH SENIOR
HOUSING, INC.
Introduction
The purpose of this item is to consider approving an Administrative
Amendment to the TIF Plan for TIF District 6-1 and approve a Tax
Increment Assistance Agreement between the City and Shepherd's Path
Senior Housing. Inc. Action on this subject does not affect the conduit bond
financing previously approved by the Council
The proposed administrative amendment is of the Sources and Uses
Statement in the TIF Plan to move $624,000 from "capitalized interest" into
"Site Improvements". This change is consistent with the Agreement and
doesn't require a new public hearing.
In order to have an affordable senior residential rental element to
Shepherd's Path, revenue bonds and tax increment financing are
necessary. The Tax Increment Agreement (enclosed) sets forth the terms of
the contract and obligations of the developer and City
Historv
At the June 26, 2006 meeting, City Council approved establishment of Tax
Increment Financing District No. 6-1 for the purposes of assisting in the
development of a senior independent living facility at the Shepherd's Path
campus.
Current Circumstances
The terms of the agreement and obligations of the Developer and City are
presented in detail in the Agreement. In summary, the major points of the
Agreement include the following:
· The parties agree that the acquisition of the Development Property and
the Site Improvements to be constructed by the Developer are essential
to the successful completion of the Project. The costs of the Site
Improvements, which include engineering and all other costs and fees
directly related to making the Site Improvements are estimated to be at
www.cityofpriorlake.com
. Phbne%2.441.4230 Fax 95:t447.4245
ISSUES:
least $3,012,000. The costs of the Site Improvements shall be paid by
the Developer. The City is to reimburse the Developer, to the extent that
tax increments are available to do so, the lesser of $3,012,000, or the
Site Improvement costs actually incurred and paid by the Developer (the
total tax increment request remains $6,186,000 as originally approved
by the City Council, of which $3,012,00 is for the site improvement
costs) .
· The City is to reimburse the payments made by the Developer for the
costs of the Site Improvements through the issuance of the City's Tax
Increment Revenue Note, subject to the following conditions:
The Note is 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 of and interest on the Note,
to the extent they are available.
The City and the Developer understand and agree that the
Tax Increment District will constitute a "housing district" under
the State of Minnesota Tax Increment Act. The Developer
agrees that the Project must satisfy the income requirements
for a qualified residential rental project as defined in the
Internal Revenue Code.
Conclusion
At its June 5th and June 26th, 2006 meetings the City Council concluded that
the Shepherd's Path project (1) meets many of the objectives of the City's
2030 Vision and Strategic Plan, and (2) is also consistent with the City's Tax
Increment Financing Policy.
The Tax Increment Assistance Agreement is a legal contract that reflects
the action taken at the June 26, 2006 meeting, in which the City Council
approved establishment of Tax Increment Financing District No. 6-1. The
Tax Increment Assistance Agreement was negotiated as part of the TIF
approval process and prepared by the City's Bond Counsel.
The Tax Increment Assistance Agreement addresses the following points
which have been raised by staff for further emphasis and clarification:
The increment is not guaranteed by the City.
Exhibit B, Tax Increment Note, states that "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 increment is collected for the duration that it takes to reimburse the
eligible costs but is not collected beyond 15 years.
Exhibit B, Tax Increment Note, states that "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, and the amounts due under this
Note shall be payable on August 1, 2008, and on each February 1 and
August 1 thereafter to and including February 1, 2024."
As long as the increment is collected the developer guarantees that 20% of
the units are available to seniors making 50% of Scott County median
income, and the rents remain affordable to those making 50% of the
median income during the 15 year term.
Section 3.3. of the Tax Increment Assistance Agreement states that "at least
20% of the residential units in the Project must be occupied or available for
occupancy by persons whose incomes do not exceed 50% of the County
median income; and the limit 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" (defined in
Section 6.7 as the earlier of February 1, 2024, or the date on which the Tax
Increment Note is paid in full, unless earlier terminated or rescinded in
accordance with its terms).
FINANCIAL
IMPACT:
In an effort to provide for 31 affordable senior rental dwelling units for 15
years, the City, County and School District are forgoing their incremental tax
receipts attributed to the project. Without such assistance the project could
not be undertaken.
ALTERNATIVES:
1. Adopt Resolution #06-XX, approving an Administrative Amendment
to the Tax Increment Financing Plan for Tax Increment Financing
District 6-1 and authorizing the execution of a Tax Increment
Assistance Agreement between the City and Shepherd's Path Senior
Housing. Inc.
2. Defer for a specific reason
RECOMMENDED
MOTION:
Reviewed by: 1
~J 1,--
Frank Boyles, c(Jnger
ATTACHMENTS:
Alternative 1.
1. Resolution #06-XX, approving an Administrative Amendment to the Tax Increment Financing
Plan for Tax Increment Financing District 6-1 and authorizing the execution of a Tax
Increment Assistance Agreement between the City and Shepherd's Path Senior Housing. Inc.
2. Tax Increment Assistance Agreement by and Between the City of Prior Lake, Minnesota and
Shepherd's Path Senior Housing, Inc.
EXTRACT OF MINUTES OF MEETING
OF THE CITY COUNCIL OF THE
CITY OF PRIOR LAKE, MINNESOTA
HELD: August 7, 2006
Pursuant to due call and notice thereof, a meeting of the City Council of the City of Prior
Lake, Scott County, Minnesota, was dilly called and held on Monday, the 7th day of August,
2006, 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 APPROVING AN ADMINISTRATIVE AMENDMENT TO
THE TAX INCREMENT FINANCING PLAN FOR TAX INCREMENT
FINANCING DISTRICT NO. 6-1 AND AUTHORIZING THE EXECUTION OF
A TAX INCREMENT ASSISTANCE AGREEMENT
A. WHEREAS, the City of Prior Lake, Minnesota (the "City") has heretofore
established Tax Increment Financing District No. 6-1 within Municipal Development District
No.6 and adopted a Tax Increment Financing Plan therefor; and there is a proposal to amend the
Tax Increment Financing Plan for Tax Increment Financing District No. 6-1 under the provisions
of Minnesota Statutes, Sections 469.174 to 469.1799 and Sections 469.124 to 469 .134 (the
"Act"); and
B. WHEREAS, the City has prepared an amended Exhibit II - Source & Uses
Statement to the Tax Increment Financing Plan for Tax Increment Financing District No.6-I,
reflecting the amended budget, attached as Exhibit A hereto (the "Administrative Amendment");
and
C. WHEREAS, the City has performed all actions required by law to be performed
prior to the approval of the Administrative Amendment; and
D. WHEREAS, Shepherd's Path Senior Housing, Inc. (the "Developer") has
requested that the City assist with the financing of certain costs in connection with the
construction of a senior assisted living campus consisting of 16 single unit senior villas, an 8-unit
senior apartment complex and an 24-unit senior assisted living complex to be constructed by the
Developer in the City (the "Project").
E. WHEREAS, the Developer and the City have determined to enter into a Tax
Increment Assistance Agreement providing for the City's assistance for the Project (the
"Agreement").
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Prior Lake,
Minnesota, as follows:
1. The City finds, determines and declares that with respect to the Administrative
Amendment:
(i) The City is not modifying the boundaries of Tax Increment Financing
District No. 6-1 nor increasing the budget in the Tax Increment Financing Plan therefor,
but is, however, making an administrative amendment thereto.
(ii) The City reaffirms the findings previously made with respect to Tax
Increment Financing District No.6-I.
(iii) The Administrative Amendment conforms to the general plan for the
development of the City as a whole.
(iv) The Act does not require a public hearing on the Administrative
Amendment.
2. The Administrative Amendment is hereby approved.
3. The City Manager is authorized and directed to file a copy of the Amendment
with the Commissioner of Revenue.
4. The City Council hereby approves the Agreement in substantially the form
submitted, and the Mayor and Manager are hereby authorized and directed to execute the
Agreement on behalf of the City.
5. The approval hereby given to the 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 Agreement. The execution of the
Agreement by the appropriate officer or officers of the City shall be conclusive evidence of the
approval of the Agreement in accordance with the terms hereof.
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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 7th day of August, 2006.
Mayor
Attest:
Manager
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STATE OF MINNESOTA
COUNTY OF SCOTT
CITY OF PRIOR LAKE
I, the undersigned, being the dilly qualified and acting Manager of the City of Prior Lake,
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 of said 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 Approving an
Administrative Amendment to the Tax Increment Financing Plan for Tax Increment Financing
District No. 6-1 and Authorizing the Execution of a Tax Increment Assistance Agreement.
WITNESS my hand as such Manager of the City Council of the City of Prior Lake,
Minnesota this _ day of August, 2006.
Manager
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EXHIBIT A
Amended Exhibit II-Sources and Uses Statement
Sources of Funds
Tax increment revenue
Interest on invested funds
Bond proceeds
Loan proceeds
Real estate sales
Special assessments
Rent/lease revenue
Grants
Other (describe)
Transfers in
Total Sources of Funds
$6,186,000
o
o
o
o
o
o
o
o
o
$6,186,000
Land/building acquisition
Site improvements/preparation costs
Renovation
Installation of public utilities
Park facilities
Streets and sidewalks
Public park facilities
Interest reduction payments
Bond principal payments
Bond interest payments
Loan principal payments
Loan/note interest payments
Administrative expenses
Capitalized interest
Transfers out
Total Uses of Funds
$ 0
3,012,000
o
o
o
o
o
o
o
o
o
2,534,000
617,000
o
23.000
$6,186,000
A-I
TAX INCREMENT ASSISTANCE AGREEMENT
BY AND BETWEEN
THE CITY OF PRIOR LAKE, MINNESOTA
AND
SHEPHERD'S PATH SENIOR HOUSING, INC.
This document drafted by:
BRIGGS AND MORGAN
Professional Association
2200 First National Bank Building
St. Pau1, Minnesota 55101
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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 Land Acquisition and Site Improvements............................................ 6
Section 3.2 Reimbursement: Tax Increment Revenue Note................................... 6
Section 3.3 Compliance with Low and Moderate Income Requirements. ............. 7
ARTICLE IV EVENTS OF DEF AUL T ................................................................................. 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 DEVELOPER'S OPTION TO TERMINATE AGREEMENT ..................... 12
Section 5.1 The Developer's Option to Terminate................................................ 12
Section 5.2 Action to Terminate ........................................................................... 12
Section 5.3 Additional Right to Terminate ........................................................... 12
Section 5.4 Effect of Termination......................................................................... 12
ARTICLE VI ADDITIONAL PROVISIONS ...................................................................... 13
Section 6.1 Restrictions on Use ............................................................................13
Section 6.2 Conflicts of Interest....... ..................................................................... 13
Section 6.3 Titles of Articles and Sections ........................................................... 13
Section 6.4 Notices and Demands ........................................................................ 13
Section 6.5 Counterparts....................................................................................... 14
Section 6.6 Law Governing .................................................................................. 14
Section 6.7 Expiration........................................................................................... 14
Section 6.8 Provisions Surviving Rescission or Expiration.................................. 14
Section 6.9 Assignment........................................................................................ 14
EXHIBIT A Legal Description of Development Property ............................................................ 1
EXHIBIT B FORM OF TAX INCREMENT NOTE .................................................................... 1
EXHIBIT C SITE IMPROVEMENTS .......................................................................................... 1
EXHIBIT D COMPLIANCE CERTIFICATE .............................................................................. 1
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TAX INCREMENT ASSISTANCE AGREEMENT
THIS AGREEMENT, made as of the day of Ju1y, 2006, 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 Shepherd's Path Senior Housing, Inc., a Minnesota non-profit
corporation (the "Developer"),
WITNESSETH:
WHEREAS, pursuant to Minnesota Statutes, Section 469.124 through 469.134, the City
has formed Development District No.6 (the "Development District") and has adopted a
development program therefore (the "Development Program"); and
WHEREAS, pursuant to the provisions of Minnesota Statutes, Section 469.174 through
469.1799, as amended, (hereinafter the "Tax Increment Act"), the City has created, within the
Development District, Tax Increment Financing District No. 6-1 (the "Tax Increment District")
and adopted a tax increment financing plan therefor, dated June 15, 2006, (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.
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:
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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:
AQreement means this Agreement, as the same may be from time to time modified,
amended or supplemented;
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;
City means the City of Prior Lake, Minnesota;
Comoliance Certificate means the Compliance Certificate in substantially the form
attached hereto as Exhibit D;
Countv. means Scott County, Minnesota;
Develooer means Shepherd's Path Senior Housing, Inc., its successors and assigns;
Development District means the real property described in the Development Program;
Develooment PrOQram means the development program approved in connection with the
Development District;
Develooment Prooertv 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 Pavrnent Date means August 1, 2008, and each February 1 and August 1 of each
year thereafter to and including February 1,2024; 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;
Prime Rate means the rate of interest from time to time publicly announced by U.S. Bank
National Association in Minneapolis, Minnesota, as its "reference rate" or any successor rate,
which rate shall change as and when that prime rate or successor rate changes;
Proiect means the acquisition, construction and equipping of an approximately 154-unit
elderly housing development consisting of approximately 82 congregate care units,
approximately 54 assisted living units and approximately 18 memory care units (the "Project")
located adjacent to the Shepherd of the Lutheran Lake Church, located at 13760 McKenna Road
in the City;
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Site Improvements means the site improvements undertaken or to be undertaken on the
Development Property, more particularly described on Exhibit C attached hereto;
State means the State of Minnesota;
Tax Increments means 90% 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;
Tax Increment Act means Minnesota Statutes, Sections 469.174 through 469.1799, as
amended;
Tax Increment District means Tax Increment Financing District No. 6-1 located within
the Development District, a description of which is set forth in the Tax Increment Financing
Plan, which was qualified as a housing district under the Tax Increment Act;
Tax Increment Financinll Plan means the tax increment financing plan approved for the
Tax Increment District by the City Council on June 15,2006;
Tax Increment Note means the Tax Increment Revenue Note (Shepherd's Path Senior
Housing, Inc. Project) to be executed by the City and delivered to the Developer pursuant to
Article III hereof, a copy of which is attached hereto as Exhibit B;
Termination Date means the date this Agreement terminates in accordance with Section
6.7;
Unavoidable Delavs means delays, outside the control of the party claiming its
occurrence, which are the direct resu1t of strikes, other labor troubles, unusually severe or
prolonged bad weather, acts of God, fire or other casualty to the Project, litigation commenced
by third parties which, by injunction or other similar judicial action or by the exercise of
reasonable discretion, directly resu1ts 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 Reoresentations 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 the costs of certain Site Improvements incurred in connection with the Project as
further provided in this Agreement.
(5) The City makes no representation or warranty, either express 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' purposes or needs.
Section 2.2 Representations and Warranties of the Develooer. The Developer makes
the following representations and warranties:
(1) The Developer is a Minnesota non-profit corporation, has power to enter into this
Agreement and to perform its obligations hereunder and is not in violation of any provisions of
its articles, bylaws, or the laws of the State.
(2) The Developer will cause the Project to be installed in accordance with the terms
of this Agreement, the Development Program, and all applicable local, state and federal laws and
regulations (including, but not limited to, environmental, zoning, energy conservation, building
code, public health laws and regulations).
(3) In the opinion of the Developer the Project wou1d not have been or 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,
1919046v4
4
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.
(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 resu1ts 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 fully with the City with respect to any litigation
commenced with respect to the Project.
(7) The Developer will cooperate fully with the City in resolution of any traffic,
parking, trash removal or public safety problems which may arise in connection with the
construction and operation of the Project.
(8) The construction of the Project will commence no later than August 1, 2006 and
barring Unavoidable Delays, the Project will be substantially completed by December 31, 2007.
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ARTICLE III
UNDERTAKINGS BY DEVELOPER AND CITY
Section 3.1 Land Acauisition and Site Imorovements. The parties agree that the
acquisition of the Development Property and the Site Improvements to be constructed by the
Developer are essential to the successful completion of the Project. The costs of the Site
Improvements, which shall include engineering and all other costs and fees directly related to the
making the Site Improvements are estimated to be at least $3,012,000. The costs of the Site
Improvements shall be paid by the Developer. The City shall reimburse the Developer for the
lesser of $3,012,000 or the Site Improvement costs actually incurred and paid by the Developer,
as further provided in Section 3.2 hereof.
Section 3.2 Reimbursement: Tax Increment Revenue Note. The City shall reimburse
the payments made by the Developer under Section 3.1 for costs of the Site Improvements
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 when the Developer shall have
demonstrated in writing to the reasonable satisfaction of the City that the construction of the Site
Improvements has been completed and that the Developer has incurred and paid all costs of the
Site Improvements, as described in and limited by Section 3.1.
(2) The unpaid balance of the Note shall bear simple, non-compounded interest from
the date of issuance of the Note, at 9.00% per annum. Interest shall be computed on the basis of
a 360 day year consisting of twelve (12) 30-day months.
(3) The principal amounts of the Note and the interest thereon shall be payable solely
from the Tax Increments.
(4) The payment dates of the Note shall be the Note Payment Dates. The Developer
shall submit a statement to the City on or before each January 1 and July 1, commencing on Ju1y
1, 2008, setting forth the principal amount of the Note and the accrued interest thereon due on
the following February 1 or August 1 as appropriate, shall include with the statement a
Compliance Certificate covering a period commencing on June 1 of the immediately preceding
calendar year and ending no later than June 1 of the same year or December 1 of the immediately
preceding calendar year and ending no later than June 1 of the current year (whichever is the
most recent date prior to submission of the statement), and executed by the Developer. On each
Note Payment Date and subject to the provisions of the Note, the City shall pay, against the
principal and interest then due on the Note, any Tax Increments received by the City during the
preceding 6 months. All such payments shall first be applied to accrued and unpaid interest and
then to principal of the Note.
(5) Notwithstanding anything herein or in the Note to the contrary, the City shall be
under no obligation to apply or pay the Tax Increments to the payment of the Note any earlier
than 30 days after it has received the Developer's statement required by paragraph (4) above.
1919046v4 6
Failure of the Developer to submit the Developer's statement in the time frame required by
paragraph (4) above shall not prevent the Developer from obtaining the payment from the City
upon eventual submission of the required documents. Any interest accruing on Tax Increments
held by the City pending the Note Payment Dates or receipt of such statement from the
Developer shall accrue to the benefit of the City.
(6) 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 of 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.
(7) 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 Defau1t that has occurred and is continuing under this Agreement and (B) this
Agreement shall not have been rescinded pursuant to Section 4.2(b).
(8) The Note shall be governed by and payable pursuant to the additional terms
thereof, as set forth in Exhibit C. 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 bond counsel for the Note may require in connection therewith, are hereby authorized
and approved by the City.
Section 3.3 Comoliance with Low and Moderate Income Reauirements.
(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 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 20% of the residential units in the Project must be occupied or
available for occupancy by persons whose incomes do not exceed 50% of the County
median income; and
(B) The limit 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.
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(2) On or before each January 1 and July 1, commencing on July 1, 2008, the
Developer or an agent of the Developer must deliver or cause to be delivered to the City 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
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 Tax Increment 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.
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ARTICLE IV
EVENTS OF DEFAULT
Section 4.1 Events of Default Defined. The following shall be "Events of Defau1t"
under this Agreement and the term "Event of Default" shall mean whenever it is used in this
Agreement anyone or more of the following events:
(1) Failure by the Developer to timely pay any ad valorem real property taxes
assessed with respect to the Development Property.
(2) Failure by the Developer to cause the installation of the Project to be completed
pursuant to the terms, conditions and limitations of this Agreement.
(3) 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.
(4) The holder of any mortgage on the Development Property or any improvements
thereon, or any portion thereof, commences foreclosure proceedings as a resu1t of any default
under the applicable mortgage documents.
(5) 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 Defau1t referred to in
Section 4.1 occurs and is continuing, the City, as specified below, may take anyone or more of
the following actions after the giving of thirty (30) days' written notice to the Developer, but only
if the Event of Default has not been cured within said thirty (30) days:
1919046v4
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(1) The City may suspend its performance under this Agreement until it receives
assurances from the Developer, deemed adequate by the City, that the Developer will cure its
defau1t and continue its performance under this Agreement.
(2) The City may cancel and rescind the Agreement.
(3) 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 Remedv 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 Imolied 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 A2:reement to Pav Attornev's Fees and Exoenses. 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 resu1ting 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.
(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 other persons acting on its behalf or
1919046v4 10
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 Developer
operating the Project so that the Tax Increment District does not qualify or cease to qualify as a
"housing district" under Section 469.174, Subdivision 11, of the Act or to violate limitations as
to the use of Tax Increments as set forth in Section 469.176, Subdivision 4d.
(3) All covenants, stipulations, promises, agreements and obligations of the City
contained herein shall be deemed to be the covenants, stipu1ations, 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.
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ARTICLE V
DEVELOPER'S OPTION TO TERMINATE AGREEMENT
Section 5.1 The Developer's Option to Terminate. This Agreement may be terminated
by Developer, if (i) the Developer is in compliance with all material terms of this Agreement and
no Event of Default has occurred; and (ii) the City fails to comply with any material term of this
Agreement, and, after written notice by the Developer of such failure, the City has failed to cure
such noncompliance within ninety (90) days of receipt of such notice, or, if such noncompliance
cannot reasonably be cured by the City within ninety (90) days, of receipt of such notice, the
City has not provided assurances, reasonably satisfactory to the Developer, that such
noncompliance will be cured as soon as reasonably possible.
Section 5.2 Action to Terminate. Termination of this Agreement pursuant to Section
5.1 must be accomplished by written notification by the Developer to the City within thirty (30)
days after the date when such option to terminate may first be exercised. A failure by the
Developer to terminate this Agreement within such period constitutes a waiver by the Developer
of its rights to terminate this Agreement due to such occurrence or event.
Section 5.3 Additional Riilllt to Terminate. In addition to Developer's right to
terminate this Agreement pursuant to Section 5.1 above, Developer shall have the right to
terminate this Agreement at any time after completion of the Project by written notice to the
City.
Section 5.4 Effect of Termination. If this Agreement is terminated pursuant to this
Article V, this Agreement shall be from such date forward nu11 and void and of no further effect;
provided, however, the termination of this Agreement shall not affect the rights of either party to
institute any action, claim or demand for damages suffered as a resu1t of breach or default of the
terms of this Agreement by the other party, or to recover amounts which had accrued and
become due and payable as of the date of such termination. Upon termination of this Agreement
pursuant to this Article V, the Developer shall be free to proceed with the Project at its own
expense and without regard to the provisions of this Agreement; provided, however, that the City
shall have no further obligations to the Developer with respect to reimbursement of the expenses
set forth in Section 3.2, or to make any further payments on the Tax Increment Note.
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ARTICLE VI
ADDITIONAL PROVISIONS
Section 6.1 Restrictions on Use. The Developer agrees for itself, its successors and
assigns and every successor in interest to the Development Property, or any part thereof, that
during the term of this Agreement the Developer and such successors and assigns shall operate,
or cause to be operated, the Project as a housing project and shall devote the Development
Property to, and in accordance with, the uses specified in this Agreement.
Section 6.2 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 6.3 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 6.4 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
(1) in the case of the Developer is addressed to or delivered personally to:
Shepherd's Path Senior Housing, Inc.
2845 Hamline Avenue North, Suite 200
Roseville, MN 55113
Attention: Chief Financial Officer
(2) 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
16776 Fish Point Road SE
Prior Lake, Minnesota 55372
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 6.5 Counterparts. This Agreement may be executed In any number of
counterparts, each of which shall constitute one and the Same instrument.
Section 6.6 Law Governinl!. This Agreement will be governed and construed in
accordance with the laws of the State.
Section 6.7 Exoiration. This Agreement shall expire on the earlier of February 1,
2024, or the date on which the Tax Increment Note is paid in full, unless earlier terminated or
rescinded in accordance with its terms.
Section 6.8 Provisions Survivinl! Rescission or Exniration. Sections 4.5 and 4.6 shall
survive any rescission, termination or expiration of this Agreement with respect to or arising out
of any event, occurrence or circumstance existing prior to the date thereof.
Section 6.9 Assienment. The Developer shall not assign its interest in this Agreement
or the Note without the consent of the City, which consent shall not be unreasonably withheld.
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IN WITNESS WHEREOF, the City has caused this Agreement to be du1y 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 City Manager
This is a signature page to the Tax Increment Assistance Agreement by and between the City of
Prior Lake and Shepherd's Path Senior Housing, Inc.
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S-l
SHEPHERD'S PATH SENIOR HOUSING, INC.
By:
Its:
This is a signature page to the Tax Increment Assistance Agreement by and between the City of
Prior Lake and Shepherd's Path Senior Housing, Inc.
1919046v4
S-2
.EXHIBIT A
Legal Description of Development Property
Property located in Scott County, Minnesota, legally described as:
Lot 2, Block 2, Shepherd's Path Addition, according to the recorded plat thereof, Scott
County, Minnesota.
(Abstract)
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EXHIBIT B
FORM OF TAX INCREMENT NOTE
No. R-l
$
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF SCOTT
CITY OF PRIOR LAKE
TAX INCREMENT REVENUE NOTE
(SHEPHERD'S PATH SENIOR HOUSING, INC. 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 Shepherd's Path Senior Housing, Inc., 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 $3,012,000 as provided in that certain Tax Increment
Assistance Agreement, dated as of July _' 2006, as the same may be amended from time to time
(the "Tax Increment Assistance Agreement"), by and between the City and Shepherd's Path
Senior Housing, Inc.. The unpaid principal amount hereof shall bear interest from the date of
this Note at the simple, non-compounded rate of nine and no hundredths percent (9.00%) 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, 2008, and on each
February 1 and August 1 thereafter to and including February 1,2024, or, if the first should not
be a Business Day (as defined in the Tax Increment Assistance Agreement) the next succeeding
Business Day (the "Payment Dates"), provided, that such Payment Date shall be automatically
extended if and to the extent required to relieve the City of any obligation to pay any Payment
Amount any earlier than 30 days after it has received the statement and Compliance Certificate
required under Section 3.2(4) of the Tax Increment Assistance Agreement. On each Payment
Date 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 be applied first to accrued interest and then to principal.
1919046v4
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The Payment Amounts due hereon shall be payable solely from 90% of the tax
increments (the "Tax Increments") from the Tax Increment Financing District No. 6-1 (the "Tax
Increment District") within its Municipal Development District No.6 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 469.1799, 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
Tax Increment Assistance Agreement under Section 4.2(b) thereof or the Developer shall have
terminated the Tax Increment Assistance Agreement under Article V thereof, 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 Tax Increment Assistance Agreement shall have occurred and be
continuing at the time payment is otherwise due hereunder, but such unpaid amounts shall
become payable, without interest accruing thereon in the meantime, if said Event of Default shall
thereafter have been cured; and, further, if pursuant to the occurrence of an Event of Default
under the Tax Increment Assistance Agreement the City elects to cancel and rescind the Tax
Increment Assistance 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 Tax Increment
Assistance 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 the interest thereon,
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 of Prior Lake, Minnesota,
and neither the full faith and credit nor the taxing powers of the City are pledged to the payment
of the principal of or interest on 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 may be assigned only with the consent of the City. 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.
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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 regu1ar and due form, time, and manner as required by
law; and that this Note, 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, statutory or charter 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 issued on and dated ,200_.
Manager
Mayor
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CERTIFICATION OF REGISTRATION
It is hereby certified that the foregoing Note, as originally issued on ,
200_, was on said date registered in the name of Shepherd's Path Senior Housing, Inc., 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
REGISTERED OWNERS
DATE OF
REGISTRATION
SIGNATURE OF
CITY MANAGER
Shepherd's Path Senior Housing, Inc.
2845 Hamline Avenue North
Suite 200
Roseville, MN 55113
Attention: Chief Financial Officer
, 200_
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EXHIBIT C
SITE IMPROVEMENTS
Landscaping, including irrigation
Foundations and Footings
Grading/earthwork
Engineering
Survey
Environmental Testing
Soil Borings
Site Preparation
Onsite Utilities
Storm Water/Ponding
Outdoor Lighting
Onsite Road, Curb, Gutter, Driveway, Sidewalk and Streetscape Improvements
Parking
1919046v4
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EXHIBIT D
COMPLIANCE CERTIFICATE
The undersigned Shepherd's Path Senior Housing, Inc., does hereby certify that as of the
date of this Certificate not less than 20% of the residential units in the Shepherd's Path Senior
Housing, Inc. Project in Prior Lake, Minnesota (the "Project") are occupied by individuals whose
income is 50% or less of the Scott County median income.
Dated this
day of
,200_.
SHEPHERD'S PATH SENIOR HOUSING, INC.
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