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5.2. SR 03-08-2004
[Liver MEMORANDUM Item 5.2. TO: FROM: DATE: SUBJECT: Economic Development Authority Mayor & City Council Catherine Mehelich, Director of Economic Development//~ March 8, 2004 Consider Property Tax Abatement for the Orluck Industries, Inc. Light Industrial Building Project Attachments · Tax Rebate Financing Application from Orluck Industries · Public Hearing Notice - February 31, 2004 · Resolution Approving Property Tax Abatement · DRAFT- Tax Abatement and Business Subsidy Agreement Issue At its February 9, 2004 meeting the Economic Development Authority and City Council approved the Preliminary Expansion Siting Proposal that Orluck Industries be considered for receiving Tax Rebate (Abatement) Financing for the construction of a 20,000-square foot light industrial/business park building on the City-owned Joplin Street lot. In addition the Council directed staff to inidate the land use amendment process to change the land use from "Community Commercial" to "Light Industrial". Staff has completed the due diligence process for the land use amendment process, financial analysis and the City's Tax Rebate Financing process. Staff requests that the EDA consider recommending the Council's approval of the sale of the lot and tax abatement request. Following the EDA meeting, the City Council will hold a public hearing on the matter and consider granting final approval of the tax abatement request. Mr. Orluck is anticipated to be present for the EDA meeting to discuss the proposed project. Background Orluck Industries conducts light, precision machining of plastic and metal components for the medical, computer, semi-conductor and tele-communications industries. The £inal product components consist of either a fixture or testing device for the above industries. The company currently employs 13 full-time staff and 2 part-time positions with an hourly wage between $15.00- 22.00 per hour. Since the February meeting, Mr. Orluck has added 2 additional full-time employees. Consider Approval of Property Tax Abatement for the Orluck Industries Expansion EDA/City Council Meeting March 8, 2004 Page 2 of 2 It is important to note that Mx. Orluck is firm about not committing any additional new job creation beyond his existing 15 employees. While Mr. Orluck anticipates the creation of 4 to 6 new jobs within two years, he is unwilling to make any financial commitments for Orluck Industries' job creation, nor on the 10,000-square feet of muki-tenant space. The MN Business Subsidy Law Statutes 116J.993-116j.995, by which the City's Business Subsidy Policy follows, does allow grantors to set wage and job goals at zero following the public hearing. Case in point, the City established wage and job goals at zero for the multi-tenant building located adjacent to the proposed lot. As a matter of policy Sherburne County does not require wage and job goals. Staff has been in contact over the past two and a half years with Mark Orluck, President of Orluck Industries, Inc. Currently leasing approximatelY 4,800-square feet in Dayton, MN, the company is seeking a suitable location within the northwest metro area to expand. The City of Big Lake has aggressively pursued the company's relocation project, in addition to staff's efforts. In 2002 staff had proposed the same Joplin Street lot for Mr. Orluck's proposed project. Mr. Orluck proposes to construct an approximately 20,000-square foot building, in which his company would occupy 10,000-square feet and balance would be leased to business park district eligible uses. Staff has had various discussions with Mr. Orluck requesting his consideration of additional construction on the lot and options for transferring half of the lot upon building expansion. Mr. Orluck is firm in his commitment to build 20,000 square feet now and will consider expansion opportunity when necessary in the future. The total cost of the project is projected to be approximately $1,410,000. Sources of financing include a $1,256,000 loan from The Bank of Elk River and $50,000 equity contribution by Orluck Industries. Mr. Orluck is requesting that the city sell its Joplin Street lot to Orluck Industries for $1 and that the city and county abate its portion of the property taxes on the project for a period of approximately twelve years or up to a combined total of $201,520; the amount to reimburse the city for its land cost. Staff estimates the city portion per year at $8,912 (2004 rates) for a total over twelve years of approximately $100,760. Mr. Orluck is submitting a request to Sherburne County for tax abatement for a similar term. Staff believes that the term will likely be shorter than the projected twelve years simply based upon inflationary market value and tax rate increases. Upon receipt of Mr. Orluck's TRF application, staff completed the ratings worksheet used to help analyze such proposals. The proposed project scored a "30", which equates to a "moderately desirable" project. In addition the city's financial advisor, Ehlers & Associates has reviewed the application and "But-For" Analysis to arrive at a fair recommendation on the project's total return on equity of 12.59% with tax abatement assistance. Action Requested Staff recommends that the EDA consider recommending the City Council's approval of the property tax abatement request and sale of the Joplin Street lot for the Orluck Industries project. Following the City Council's public hearing regarding the use of tax abatement for the project, staff recommends the Council's approval of the attached Resolution Approving Property Tax Abatement for the Orluck Industries project and the attached Tax Abatement and Business Subsidy Agreement. City RAver Economic Development Tax Rebate Financing Policy & Application Amended: August 2002 Adopted: April 10, 2000 City of Ell< P, sve:, Minnesota Table of Contents I. Policy Purpose I!. Difference Between TRF & TIF II!. Objectives of Tax Rebate Financing IV. Policies for the Use of TRF 3-4 4-5 V. Project Qualifications Vi. Subsidy Agreement & Reporting Requirements VII. Application Process Cit37 of Elk River Application to Other Pohtical Subdivisions VIII. Application Applicant Information Project Information Public Purpose Sources & Uses Checklist & Additional In£om~ation 8 9 9 10 11 IX. Application Review Worksheet X. Exhibits A B C D F Corporation/Parmersh/p Description Project Description Shareholders B~.~/-~br AnaCsis Prospective Lessees Legal Descrsprion and P[D Number XI. Sample But-For Analysis 5-6 6 7 8 12 14 15 Cin, of Elk R~ver Tax Roi. nrc [qn:mcmg Policy, Amcnclcd I. POLICY PURPOSE For ~he }ou~?ose.r qf ~hi.~' clo~,nen~. ;he ~erm "Ci0, ".&ail ira&de ;he JZ3~ P~'ver CTO, Coumii. ~conomic Dwe[opmen;~ .4~thori(7, a,d Hm~si,~ and Reckve/opmenl. 4a3ori(y. The purpose of this policy is to establish the City of Elk River's position retatmg to the use of Tax Rebate Financing (TRF), otherwise referred to as Tax Abatement, for private development above and beyond the requirements and lhnitations set forth by State Law. Th/s policy., shall be used as a guide in the processing and review of applications requesting tax rebate assistance. The fundamental purpose of tax rebate financing in Elk River is to encourage desirable development or redevelopment that ~vould not otherwise occur/';/,z/.fi;r the assistance provided d~rough TRF. The Ciw of Elk River is granted the power to utilize TRF by the Minnesota Tax Abatement Act, as amended. [t is the intent of the City to provide the rninmmrn amount of TRF, as well as other incentives, at the shortest ten-n required for the project to proceed. The CiD' reserves the right to approve or reject projects on a case by case basis, taksng into consideration established policies, project criteria, and demand on city services in relation to the potential benefits from the project. Meeting policy criteria does not guarantee the award of TRF to the project. Approval or denial of one project is not intended to set precedent for approval or denial of another project. II. DIFFERENCE BETWEEN TRF & TIF The prinaau~ difference bet~veen Tax Rebate Financing (TRF) and Tax Increment Financing (TIF) is the way in which the dollars are awarded to the project. When TIF is awarded to a project bv the citT, the other political subdivisions (the school dismct and the county) are required to contribute their portion of the increased taxes to the project. Conversely, when TRF is requested, each political subdivision has the option of granting its portion of the increased taxes to the project. Subsequently, the dollars generated for the project with TRF are generally less than the dollars generated with TIF. III. OBJECTIVES OF TAX REBATE FINANCING As a matter of adopted policy, the City will consider using TRF to assist private development projects to acMeve one or more of the following objectives: · To retain local jobs and/or increase the number and diversiU, of jobs that offer stable employrnent and/or attractive wages and benefits. · To enhance and diversify the ~cit-y of Elk River's economic base. · To encourage additional unsubsidized private development in the area, either directly or indirectly through "spin off" development. · To facilitate the development process and to achieve development on sites which would not be developed without TRF assistance. To remove blight and/or encourage redevelopment of commercial and mdusr_dal areas in the city dmt result in high qualit?' redevelopment and private reinvestment. CitT of Elk River Tax l~_cbatc Financing Policy, \mcnde'd .~ ugusr 2{)()2 -3- · To offset increased costs of redevelopment (i.e. conta~finated site clean up) over and above the costs normally incurred tn development. · To create oppormrfities for affordable housing. To contribute to the Lmplementation of other public policies, as adopted by the city from m-ne to m-ne, such as the promotion of qualiu' urban or architectural design, energy conservation, and decreasing capital and/or operatsng costs of local government. IV. POLICIES FOR THE USE OF TRF TRF assistance will be provided to the developer upon receipt of taxes by the Ciq,, otherwise referred to as the fl~?-ct.%yoz~-~o method. Requests for up front financing will be considered on a case-by-case basis. Any developer receiving TRF assistance shall provide a trmamxum of twenty percent (20%) cash equity investment in the project. Projects utilizing the SBAS04 program will be required ~o provide a mmix-num of ten percent (10°/0) cash equity' invesmxent. c. TRF will not be used in circumstances where land and/or property price is in excess of fait' market value. d. Developer shall be able to demonstrate a market demand for a proposed project. e. TRF xvill not be utilized in cases where it would create an unfair and si~m'fificant competitive financial advantage over other projects in the area. TRF shall not be used for projects that would place extraordinary demands on city services or for projects that would generate si~m'fificant environmental impacts. The developer must provide adequate financial guarantees to ensure completion of the project, including, but not limited to: assessment agreements, letters of credit, personal guaranties, and etcetera. The developer shah adequately demonstrate, to the City's sole satisfaction, an abiliu, to complete the proposed proiect based on past development expe~4ence, general reputation, and credit l'dstolT, among other Gctors, including the size and scope of the proposed project. For the purposes of underwriting the proposal, the developer shah provide any requested market, financial, environmental, or other data requested by the Cit7 or its consultants. j. TRi~ proposals shall not be used to support speculative office projects. Speculative projects are defined as those projects which have pre-leasing agreements or letters of intent for less than 50°,% of the available space. Citw of Elk River Tax l<ebate -4- In ad&tion, leasible office projects n'mst meet the following guidelines: l. Evidence of the 50 % occupancy must be reported to the Director of Economic Development slx months following an issued certificate of occupancy. o 50,~ of the jobs within the leasible office btfil&ng space must be considered "new" jobs to the CiU, of Elk River, meaning jobs not located in fl~e Cit-5, at any time prior to occupying space in the project. 3. Business retention jobs will be considered on a one-for-one match to job creadon o~zly in cases ~vhere job loss is specific and demonstral01e in accordance with the MN Business Subsidy Law. Evidence may include docun2entation that the company will have to close involuntarily, or the company has received an attractive offer ~o move to another state or co rnrn un_iUr. k. All TRF proposals shall opm~ize the private development potential of a site. V. PROJECT QUALIFICATIONS All TRF projects considered by the Ciq, of Elk River must meet each of the follo~vmg requirements: a. The project shall meet at least one of the objectives set forth in Secdon III of this document. b. The use of TRF will be lhr~ited to: Industrial development, expansion, redevelopment, or rehabilitation; or · Commercial redevelopment or rehabilitation; or · Research and development facilities that sadsfy Business Park zomng requirements; or · Office facilities with a w2rmTmm new construction of 25,000 square feet and ~mnimum market value of $1,000,000 upon project completion; or · Residential development and redevelopment may be eligible for TRF under a separate set of policies and only with the recorm'nendation of the HI'La. The developer shall demonsra:ate that the project is not financially feasible /;,/-for the use of TRF. Evaluation of the project's financial feasibiliry without TI~ shall be provided by the Citw's financial advisor on requests of over $25,000 total. d. The project shall comply with all provisions set forth in the state's Tax Abatement Law, statues 4-69.18'12 to 4-69.1815, as amended. Ciw o f Elk Kiver Ta× l',el :~te I;in:mcmg Polio5. .-\mended .\ugust '3 ~ -5- e. The project must be consistent ~vith due City's Comprehensive Plan, Land Use Plan, and Zoning Ordinances. The project shall serve at least two of the following public pm'poses: · Job creation or job retention. · Increase of tax base. · Enhancement or diversification of due ciw's economic base. · Development or redevelopment that will spur additional private invesnTmnt in the area. · Fulfflh22ent of defined city ob}ecdves, such as those identified in the Strategic Plan for Econotmc Development or the ciw's Comprehensive Pla=, among others. · Removal of blight or the rehabriitadon of a high profrie or priority site. VI. SUBSIDY AGREEMENT & REPORTING REQUIRMENTS ~11 developers/businesses receiving Tax Rebate Financing assistance from the City of Elk River shall be subiect to the provisions and requirements set forth by the Cit3?s Business Subsidy Criteria as adopted, and State Statute 116.1.993 as summarized below. All developers/businesses receiving TRF assistance shah enter into a Subsidy Agreement with die City of Elk River that identifies: due reason fl0r the subsidy, the public purpose served by the subsidy, and due goals for the subsidy, as xveli as other subsidy agreement criteria set forth by Statute 116.J.993. The developer/business shall file a report annually for two years after the date the benefit is received or until all goals set forfl~ in the application and Subsidy Agreement have been met, whichever is later. Reports shall be cornpleted using the format drafted by the State of Minnesota and shah be fried with the City of Elk R/ver no later than March 1 of each year for the previous calendar year. Businesses fulfaling job creation requirements must file a report to that effect with the city within 30 days of meedng the requk'ements. The develOper/business oxvner shall maintain and operate its facility at flue site where TRF assistance is used for a period of five years after the benefit is received. In addition to attain_lng or exceeding.the jobs and xvages goals set forth in the Subsidy Agreement, the borrower shall achieve at least one of the objectives set forth in Section III of this document. Developers / Businesses failing to comply With the above provisions will be subject to times, repayment requirements, terO'Unadon of the assistance, and be deemed ineligible by the State to receive any loans or grants from public entities for a period of five years. Ciu, o£ Elk Raver Tax Rebate [~inancm,'4. P~)licv. _Mncndcd \ugust 211112 -6- VII. APPLICATION PROCESS FOR TRF Ae CITY OF ELK RIVER Applicant submits the completed application along with a Ii5,000 application fee. The application fee ~vill be used toward the cost of services provided m the evaluation of ffmancial feasibiliw and preparation o£ legal documents. The balance of the application lee ~vill be returned to d2e applicant. o City staff reviews the application and completes the Application Review Worksheet. Results of the Worksheet are sub,rUtted to the approp~4ate govermng authorities for prelimmau' approval of the proposal. If prehminary approval is granted, all necessam/nodces, resolutions and agreements are prepared by City staff and/or consultants. 5. Public hearing(s) on the proposed project are held. 6. The EDA or HP~\ recon-unends approval or denial of the proposal to the Ciq, Council. 7. The City Council grants final approval or denia? of the proposal. B. APPLICATIONS TO OTHER POLITICAL SUBDIVISIONS It is reco~Tu'nended that applicants intending to seek TRF from Sherbume Coun~ and/or School District 728 make their applications to those bodies concurrent with their application to the City of Elk River. For more information on applying for TRF through Sherburne County and/or School Dismct 728, contact: Alex Wiksr_rorn Sherburne County Budget / Economic Development Coordinator 763-241-2700 Dr. Alan Jensen Supm4ntendenr ~ School Dismct 728 763-241-3400 CiU' of Elk R2ver 'l':~x l~ch:ttc Fm:mcm~ P,-,licv. ~.mcndud 5ugust 2t)()2 -7- VIII. APPLICATION FOR TAX REBATE FINANCING A. APPLICANT INFORMATION Name of Corporation/Partnership ("J). V Ad&ess P=,a Contact Ad&ess On a separate sheet, please provide the following: · Brief description of the corporafion/parmership's/business, including history,, principal product or serVice, etc... Attach as Exhibit A~./ · Brief description of the proposed project. Attach as Exhibit B~/// · List names of officers and shareholders/partners with more .than, five percent (5°,/0) interest in the corporation/partnership. Attach as Exhibit C.~-' · A but-~br analysis and narrative. Attach as Exhibit D. J Attorney Name Ad&ess Phone Fax Email Accountant Name Ad&ess ~/4-~-~ Phone g~ i '- ~% ~, Contractor Name Ad&ess Phone Fax Email Engineer Name Ad&ess Phone Fax Email Architect Name Ad&ess Phone Fax Email City, of Elk River Tax Rebate Financing Policy, ~nended August 2002 -8- B. PROJECT INFORMATION 1. The project w/Il be: Industrial: 7<. New Construction .~" Expansion Redevelopment / Rehab. __Office/research facility that conforms to business park standards Commercial Redevelopment/Rehabilitation Other 2. In addition to the City of Elk River, applicant is requesting TRF funds from: Sherbume County __ School District 728 3. The project will be: ':/.Owner Occupied .>~ Leased Space · If leased space, please attach a list names and addresses of future lessees and indicate the status of commitments or lease agreements. Attach as Exhibit E. · Include Legal Description and PID Number. Attach as Exhibit o site Plan Attached: ~< Yes No Total Amount of TRF Requested: $ 5~c' t., 51' ,~TTover City Portion of TRF: Annual County Portion of TRF: Annual ISD 728 Portion of TRF: Annual Total $. Total $. / Total Current Real Estate Taxes on Project Site: $ ~-~O~, 5'~ Estimated Real Estate Taxes upon Completion: Phase I $ ~'~ ~. } tf...' 5, Phase II $ 8. Construction Start Date: .,Zlfz, te.~ / Construction Completion Date: ~5. 5- ¥ If Phased Project: Year Year % Completed % Completed C. PUBLIC PURPOSE It is the policy of the City of Elk River that the use of Tax Rebate Financing should result in a benefit to the public. Please indicate how this project will serve a public purpose. .-,/'Job Creation/Retention Number of existing jobs \'7 '} ~ ,~' )' '. ~ t ,'; 2. Number of jobs created by project ~: ~' ~ Average hourly wage of jobs created/retained~ t 5. '- 7-7: -,//.New industrial development which will result in additional private investment in the area. -./Enhancement and/or diversification of the city's economic base. ,7 The project contributes to the fulfillment of the City's Strategic Plan for Economic Development. Removal of blight. Rehabilitation of a high profile or priority site. Other: City of Elk River Tax Reb:tte Financing Poi_icy, Amended August 2002 -9- D. SOURCES & USES SOURCES Bank Loan Other Private Funds Equity Fed Grant/Loan State Grant/Loan EDA Micro Loan Tax Rebate Financing ID Bonds TOTAL NAME AMOUNT USES Land Acquisition Site Development Construction Machinery & Equipment Architectural & Engineering Fees Legal Fees Interest During Construction Debt Service Reserve Contingencies ~.~ '~Z.,.,,5::'"'~',: .... .x ,.: TOTAL AMOUNT Cit-v of Elk River Tax Rebate Financing Policy, Amended :kugust 2002 -10- E. ADDITIONAL DOCUMENTATION AND CHECKLIST Applicants will ~dso be required to provide the following documentation. A) Writ-ten business plan, including a description of the business, ownership/management, date established, products and services, and furore plans B) Financial Statements for Past Two Years ../ .Profit & Loss Statement ./ Balance Sheet ,// C) Current Financial Statements -/ Profit & Loss Statement to Date ./ Balance Sheet to Date x/ D) Two Year Financial Projections /F) Personal Financial Statements of all Major Shareholders Profit & Loss Current Tax Return --/ G) Letter of Commitment from Applicant Pledging to Complete During the Proposed Project Duration ~ H) Letter of Commitment from the Other Sources of Financing, Stating Terms and Conditions of their Participation in the ~I) Application fee of $5000 ;~2;:<.'-.~- ~ J) Itemized Project Construction Statement ~'=:..' ~'~ .,',',': · /,' ////K) Attach the following documentation as Exhibits .,/ . E.,d'fibit A - Corporation/Partnership Description ,/ , Exhibit B - Description of Project v' Exhibit C - List of Shareholders/Partners ./ Exhibit D - But-ForAnalysis · ,/ Exhibit E - List of Prospective Lessees ,/ Exhibit F - Legal Description Note: All Major shareholders will be required to sign personal guarantees if up front financing of the project is required. The undersigned certifies that all information provided in this application is true and correct to the best of the undersigned's knowledge. The undersigned authorizes the City of Elk River to check credit references, verify, financial and other information, and share this information with other political subdivisions as needed. The undersigned also agrees to provide any additional information as may be requested by the City a~e~ the filing of this application. Applicant Name i,, ~, !'5 Date '2---- L~- Cz, [JC City, of Elk River Tax Rebate Financing Policy, ~Kmended August 2002 -11- EXHIBIT A Description of the corporation or partnership ~EXHIBIT B Description of the proposed project ~.E/XXHIBIT C Names of officers and shareholders/parmers with more than five percent (5%) interest m the corporadon/parmership. /EXHIBIT D But-~br analysis ~ExHIBIT E Prospective Lessees ~,,'E~HIBIT F Legal Description and PID Number City of Elk River Tax Rebate Financing Policy, ?a'nended August 2002 EXHIBIT A CORPORATION DESCRIPTION Orluck Industries, Inc. was established in 1993, with the purchase of a small lapping company. The first year, sales doubled to $150,000. The second year, sales doubled again to $300,000. Sales doubled again the third year to $600,000 and again the fourth year to 1.2 million. Since than sales have remained constant at 1.0 million. In 2000 1 set a goal of doubling our sales again within two years. A top salesman and administrator was hired and $300,000 was invested in new equipment. Unfortunately, it was shortly after that, that manufacturing in Minnesota went into serious decline, yet Orluck Industries sales have remained steady at 1.0 million. During this decline, Orluck Industries invested more than $300,000 in new equipment and is well positioned to take advantage of a growing economy. We are manufacturing service company, specializing in precision machining of various metals and plastics to produce piece parts, tooling, fixturing and assemblies. Our customer base is strong and diverse, including companies like Medtronic, Seagate Technology, Everette Charles Corp. and Boston Scientific. EXHIBIT B DESCRIPTION OF PROJECT LOCATION: 2.79 acre lot Lot 1, Block 2, Country Crossing Business Center PROJECT: A 20,000-sq. ft. Industrial Building, 10,000-sq. ft. used by Orluck Industries and 10,000-sq. ft. for tenant use. Up to an additional 20,000-sq. ft. to be added at a later date. EXHIBIT C LIST OF SHAREHOLDERS Mark S. Orluck Cheryl A. Orluck 50% Shareholder 50% Shareholder EXHIBIT D BUT-FOR ANALYSIS '~'i ....... ::;:.'?? :,:-- EXHIBIT F LEGAL DESCIPTION Country Crossing Business Center Lot 1 Block 2 BUSINESS PLAN, ORLUCK INDUSTRIES INC. Ofluck Industries is a precision machine shop with a wide range of manufacturing services including piece part work (long and short run), prototype and custom machining, research and development work, tooling, special machine building and assembly. Capabilities include CNC milling and turning, manual milling and mining, surface grinding, lapping, wire EDM and sawing. Also a complete inspection department. We employ first rate machinists and toolmakers, some of whom we trained in our own workplace. Management consists of the President, Vice President of Sales and Operations, and the Office Manager. Ownership in this C Corporation consists of Mark and Cheryl Orluck. The company was established in 1993. Our future plans are to retain and strengthen our core business while gaining new customers, equipment, and employees. To acquire our own space to facilitate growth and an atmosphere of professionalism. TWO YEAR FINANCIAL ?ROJECTIONS OR_LUCK INDUSTRIES INC. 2003-2004 2004-2'005 2005-2006 1.5 million in sales 1.8 million in sales 2.1 million in sales OP.LUCK LLC 2005 2006 $120,000 Rent $120,000 Rent 3/4/2004 BUT-FOR ANALYSIS Page 1 of 2 Mortgage Equity Tax Rebate Financing TOTAL SOURCES Land Site Work Soil correction Demolition Relocation Subtotal Land Costs Construction Finish Manufacturing Subtotal Construction Costs Soft Costs Taxes Finance Fees Cap Interest Project Manager Development Fee Contingency 3% Subtotal Soft Costs TOTALUSES Rent-Space 1 Rent-Space 2 Vacancy 7% Space 2 TOTAL INCOME Mortgage DEBT SERVICE PAYMENT Net Income Total Return on Equity Sq. Ft. 10,000 10,000 I'ERM RATE ~RINCIPAL Per Sq. Ft. $6.OO $6.OO 20 6.00% WITH NO TAX REBATE SOURCES AND USES SOURCES WITH TAX REBATE SOURCES AND USES SOURCES 1,456,000 1,256,000 50,000 50,000 0 1,506,000 1,506,000 USES USES 185,000 185,000 15,000 15,000 50,000 50,000 250,000 250,000 1,160,000 1,160,000 1,160,000 1,160,000 54,00( 54,000 42,000 42,000 96,000 96,000 1,506,000 1,506,000 1,456,000 Income statement 60,000 60,000 (4,200) 115,800 126,941 -11,141 Income Statement 60,000 60,000 (4,200) 115,800! ,256,000 109,504 6,296 BUT-FOR ANALYSIS-orluck-2-pst LETTER OF COMMITMENT (APPLICANT) I pledge to complete this project, i.e. Country Crossing Business Center, Lot 1, Block 2, 10,000 sq. ft. Orluck Industries Inc. shop and office space and 10,000 sq.ft, adjacent tenant space, during the proposed project duration. Mark S. Orluck TAX REBATE FINANCING PROPOSAL REVIEW WORKSHEET T('I R; ("('tMPl PTI::i'I ltv (~ITY ~TAPI:: 1 The~roject meets the criteria set forth in Section V of the Tax Rebate Financing policy. 6/' a) Meets at least one of the objectives in Section III...~/o~,'.~ ~--'~" ~b) Demonstrates need for TRF with the but-~br analysis. ~ c) Consistent with all city plans and ordinances. f//- d) Serves at least two public purposes as defined in Section V. 2. Ratio of Private to Public Investment in Project: Points: $ ~ r' ~ Pr{rate investment $ ~-O'/~-'~5)Public Investment Ratio Private: Public Financing Less than 3. Job Creation in the City of Elk River. ~ Number of new jobs as a result of the project. /~- Number of e:dstmg/retamed jobs Total Less than 4. Ratio of TRF to new jobs created/retained: $ ~0/, ~-~_0 TRF request ./'~ Number of new jobs created/retained $ ./_~,, ~/_~'"' of TRF per new job created/retained 5. Wage Level of jobs created: Average hourly wage ~z/~ of jobs created/retained: /o 6. Project size: The project will result in the construction of square feet ~O~ O(D© 5:1 5 4:1 4 3:1 3 2:1 2 Points: 25+ 5 20+ 4 10+ 2 10 1 Points: ~' $8,000 or less 5 $10,000 or less 4 $12,000 or less 3 Over $15,000 1 __..,~.,r-Points: ..... $21/hour $ 8-21 / hour ~.__~14-17 / hour $10-13 / hour Under $10 / hour 4 3 2 1 Points: 40,000+ 5 30_,001).+ 4 10,000+ 2 10,000 or less City of Elk River T~u,: Rebate Fmanch~g PoliCy, Amended August 2002 -12- 7. Type of Project: 100% Owner Occupied L--'""'NLLx Owner Occupied & Investment ~ Investment Property 8. /// Industrial or Business Park Project __ Commercial Rehabilitation/Redevelopment 9. The project will pay annual property taxes in the first fully assessed year of $ -,:: --/ ? ~z' 10. Likelihood that the project will result in unsubsidized, spin-off development. Points: ~'~// 5 3 Point~~ 4 25,000+ 4 15,000+ 3 10,000+ 2 Under $10,000 1 Points: High Low 1 Sub - Total Points: of a possible 45 points. 9. Bonus Points Bonus Points: __ The project will be 100% Pay-asryou-go TRF. The project contributes to the goals of Energy City. · Product promotes sensible use of energy, OR · Project utilizes significant energy efficient design &/or materials in construction. 3 points 2 points Total Points: Overall project analysis: l'odherate Low Not Eligible 45-38 p. oints 37-29 3~ 28-20 points 19-0 points City. of Elk River Tax Rebate Financing Po[icy, ~Unended August 2002 -13- February 17, 2004 Director of Economic Development Catherine Mehelich 13065 Orono Parkway Elk River, Mn 55330 Dear Mrs. Mehelich, The following information is ~vhat you have requested on PID # 75-572-0205 for Orluck Industries Expansion/Relocation. The estimated market value of the proposed building project for 2005. Estimated Market Value Building Estimated Market Value Land Improvements to Land $ 871,300.00 $ 164,100.00 $ 21,000.00 $1,056,400.00 The estimated tax payable in 2006 using the 2004 rates would be $37,152.00 If you have any questions, please contact me at (763) 241-2885. Sincerely, John Cullen Sherburne County Assessor's Office Chief Deputy Assessor S.A.M.A City of River Business Subsidies Policy Adopted: Economic Development Authority. Housing & Redevelopment Aud~ority City Council Amended: Economic Development Authority November 12, 2002 November 25, 2002 November 25, 2002 December 9, 2002 City of Elk River 13065 Orono Park~vay Elk River, M2N 55330 (763) 635-1000 CITY OF ELK RIVER POLICY AND PROCEDURES RELATING TO THE USE OF BUSINESS SUBSIDIES I. PURPOSE For ~hepusOoses q/'this document, the te~vn "CIO,'" sha// i,:/ude the ~//~ Po'~,er Ci(y Coumi/, ~conomic Deve/opmen! ~ 4uthork/5', and Ho~.~in,~ and Recteve~ojoment ~4uthor~7. The purpose of this policy is to establish guidelines and criteria regarding the use of business subsidies, such as tax increment financing (TIF), tax abatement, and other business subsidies for private development projects within the City of Elk River and shah be in addidon to the requirements and limitations set forth by provisions of Minnesota State Statute 116J.993 (MN Business Subsidy Law), and by the City's policy and guidelines of the particular form of subsidy. These guidelines shah be used in processing and reviewing applications requesting business subsidies assistance. The fundamental purpose of business subsidies in the City is to encourage desirable development or redevelopment that would not othmxvise occur "but for" the assistance provided through business subsidies. It is the intent of the City to provide business subsidies, as well as other incentives that the City may deem appropriate, at the shortest term required for the project to proceed. The City reserves the right to approve or reject projects on a case-by-case basis, ta -king into account established policies, specific project c~4teria, and demand on city services in relation to the potential benefits to be received from a proposed project. Meeting policy guidelines or other criteria does not guarantee the award of business subsidies. Furthermore, the approval or denial of one project is not intended to set precedent for approval or denial of another project. Whenever possible it is the City's intent to coordinate the use of business subsidies with other applicable taxing jurisdictions. II. DEFINITION OF "BUSINESS SUBSIDY" The following types of assistance having a value in excess of $25,000 are defined as a "business subsidy" within the MN Business Subsidy Law: State and local government agency grants; · Contributions of personal property, real property, or infrastructure; · The principal amount of a loan that exceeds $75,000 at rates commercially available; Reductions or deferrals of taxes or fees; below those Guarantees of any payment under any loan, lease, or other obligation; and, Preferential use of government facilities. CitT of Elk P, avcr Business Subsidies Policy 2 III. PUBLIC PURPOSE OBJECTIVES OF BUSINESS SUBSIDIES In accordance with the MN Business Subsidy Law, the City will consider using business subsidies to assist private development projects to achieve one or more of the following public purpose objectives: · To retain local jobs and/or increase the number and diversity of jobs that offer stable employment and/or attractive wages and benefits. · To enhance and diversif3' the City of Elk River's tax base. · To encourage additional unsubsidized private development in the area, either directly or indirectly through "spin off" development. · To achieve development on sites which would not be developed without business subsidies assistance. · To remove blight and/or encourage development of commercial and industt4al areas in the city that result in higher quality development or redevelopment and private investment. · To offset increased costs of development of specific properties when the unique physical characteristics of the site ma), otherwise preclude private investment. · To create opportunities for the construction, operation and maintenance of affordable housing. IV. GENERAL POLICIES FOR THE USE OF BUSINESS SUBSIDIES Business subsidy assistance will be provided, from the City, by a "pay-as-you-go" note method, to the develoPer if the business subsidy is tax increment financing or tax abatement. Requests for up front financing will be considered on a case-by-case basis. A developer requesting business subsidy assistance must demonstrate, to the satisfaction of the City, sufficient cash equity, investment in the project as required within the City's policy for the particular form of subsidy. Business subsidy will not be provided in circumstances where land and/or property price is demonstrated by the County Assessor to be in excess of fair market value. This would normally be where the acquisition price is more than 10% in excess of market value. A developer must be able to demonstrate to the City, or, if applicable, to the underwriting authority, a market-demand for a proposed project. Business subsidy will not be used in cases where the subsidy would create an unfair and sig-mficant competitive financial advantage over other shnilar projects in the area. Business subsidy will not be used for projects fl~at would place extraordinary demands on city infrastructure and services. City o£ Elk River Business Sul)sidies Policy 3 If requested by the City, the developer shall provide adequate £mancial guarantees to ensure completion of the project, including, but not limited to: assessment ageements, letters of credit, cash escrows, and personal guaranties. Each developer must be able to demonstrate to the CitTfs satisfaction, an ability to construct, operate, and maintain the proposed project based on past experience, general reputation, and credit history. If requested by the City, or its consultants, the developer shall provide sufficient market, financial, environmental, or other data relative to the successful operation of the project. Projects receiving business subsidy approval from other affected taxfng jurisdictions will be more favorably received by the Cityy. Vo GUIDELINES FOR COMPIERCIAL/INDUSTRIAL BUSINESS SUBSIDIES Business subsidies will not be used for on-site retail or service businesses unless it is a redevelopment project that demonstrates that it will result in a substantial increase in tax base and a significant improvement in quality employment. The project must be consistent with the City's Comprehensive Plan, Land Use Plan, and Zoning Ordinances. The project must result in the retention of existing jobs that would be lost "but for" the proposed development or result an increase and diversification in local jobs. Business retention jobs will be considered on a one-for-one match to job creation only in cases ~vhere job loss is specific and demonstrable in accordance with the MN Business Subsidy Law. Specific wage and job goals will be determined by the City giving consideration to the particular form of the subsidy, nature of the development, the purpose of the subsidy, local economic conditions and shnilar factors. The recipient will have up to two.years to meet the job and wage goals established by the City. The ~rfinh-num wage for a job to be considered a new or retained job shall be $15.00 per hour exclusive of benefits. Deviations less than the wage floor will be considered on a case-by-case basis and in accordance with the requirements of the MN Business Subsidy Law. Business subsidies will not be used for commercial/industrial projects that have a history of inconsistent compliance with applicable environmental rules and regulations. City of Elk lUx, er Business Subsidies Policy 4 VI. SUBSIDY AGREEMENT AND REPORTING REQUIREMENTS Each company receiving a business subsidy shall be subject to the subsidy agreement and reporting provisions and requirements set forth by the MN Business Subsidy Laxv and summa~4zed below: Progress Reports The recipient shah frie a report annually for two years after the receiving the subsidy or until all goals set forth in the subsidy agreement have been met, ~vhich ever is later. Reports shall be completed using the format drafted by the State of Minnesota and shall be fried with the City, no later than March 1 of each year for the progress made the previous year. Maintain Facility The recipient agrees to maintain and operate its facility at the site where the subsidy is used for a period of five years after the date the subsidy is provided. Failure to Comply Businesses failing to comply with the subsidy agreement will' be subject to frees, repayment requirements, and be deemed ineligible by the State to receive any loans or grants from public entities for a period of five years. VII. SUBSIDY APPLICATION PROCESS AND PROCEDURE Application for business subsidies shah be made on forms for the particular form of assistance provided by the City of Elk River Director of Economic Development, or designee. A fee of $ 5,000.00 shall accompany any Tax Increment Finance, Tax Abatement, or grant request application to cover the City's imtial legal, admimstrative, and planning costs. Micro-Loan applications shall include a fee in the amount of 1% of the loan requested. Following a review by appropriate City Staff the application shah be referred to the either the Economic Development Authority, or Housing and Redevelopment Authority, for recommendation to the City Council for further acdon. 3. The application for business subsidies shall request information requh'ed within the City's policies on the particular form of subsidy including but not limited to; a detailed description of the project; a prelimmaLw site plan; the amount of business subsidy requested; the public purpose of the project; the number and t3.,pes of jobs to be created; the wages and benefits to be paid new employees; and verifiable funding sources and uses. CiB- of Elk Pdver Business Subsidies Policy 5 For publication on Wednesday, February 25, 2004 Please contact Catherine Mehelich with any questions at (763) 635-1041 CITY OF ELK RIVER NOTICE OF PUBLIC HEARING REGARDING PROPOSED PROPERTY TAX ABATEMENT FOR ORLUCK INDUSTRIES, INC. LIGHT INDUSTRIAL BUILDING PROJECT NOTICE IS HEREBY GIVEN that the City Council of the City of Elk River, Minnesota, will hold a public hearing on March 8, 2004, at a meeting of the Council beginning at approximately 6:30 p.m., Central Time, in the Elk River Senior High School Little Theater, 900 School street (enter through Door H on the north side of the building), Elk River, Minnesota, on the request of Orluck Industries, Inc. (the "Company") to have the City grant to the Company the tax abatement described below on the Company's proposed development of an approximately 20,000 square foot light industrial building on the property located in the City at the southwest comer of Joplin Street and Business Center Drive (collectively, the "Project"). The proposed abatement is as follows: for property taxes payable on the Project beginning in 2006, the City would abate and reimburse the City an amount equal to the City's local tax rate times the net tax capacity of the Project for that year, and such property tax abatements would continue, if necessary, in each subsequent year through 2017, provided that the total amount of abatements granted by the City for the Project shall meet but not exceed the City's land cost estimated at $100,760. It is estimated that the annual mount of City taxes to be abated would be approximately $8,912 and that, accordingly, approximately eleven years of City taxes would be abated for the Project. This abatement would constitute a "business subsidy" under Minnesota Statutes, Sections 116J.993 through 116J.995, and the City would impose specific wage and job goals for the Project under that law unless the City Council determines that the creation of jobs is not to be a goal, the wage and job goals may be set at zero. The City Council will consider granting this property tax abatement in response to the request. A draft of a proposed Abatement Agreement between the City and the Company, which includes the proposed business subsidy agreement, as well as a summary of the terms of the subsidy, are available for review from the office of the City's Economic Development Director at City Hall. All interested persons may appear at the public hearing -and present their views orally or in writing. Catherine Mehelich Director of Economic Development (February 25) 1410047vl A-I RESOLUTION NO. RESOLUTION APPROVING PROPERTY TAX ABATEMENTS BE IT RESOLVED by the City Council (the "Council") of the City of Elk River, Minnesota (the "City"), as follows: 1. Recitals. (a) Orluck Industries, Inc. (the "Developer") proposes to construct an approximately 20,000 square foot light manufacturing facility in the City (the "Project"). The Developer has requested that the City provide financial assistance to the Developer for the Project. The City proposes to use the abatement for the purposes provided for in the Abatement Law (as hereinafter defined), including the Project. The proposed term of the abatement will be for up to twelve years in an amount not to exceed $100,760. The abatement will apply to 100% of the City's share of the property taxes (the "Abatement") derived from the property described as Lot 1, Block 2, Country Crossing Business Center (the "Property"). (b) On the date hereof, the Council held a public hearing on the question of the Abatement, and said hearing was preceded by at least 10 days but not more than 30 days prior published notice thereof. (c) The Abatement is authorized under Minnesota Statutes, Sections 469.1812 through 469.1815 (the "Abatement Law"). Findings for the Abatement. The City Council hereby makes .the following findings: (a) The Council expects the benefits to the City of the Abatement to at least equal or exceed the costs to the City thereof. (b) Granting the Abatement is in the public interest because it will increase or preserve the tax base of the City, provide employment opportunities in the City and help redevelop an area previously blighted by poor soil conditions. (c) The Property is not located in a tax increment financing district. (d) In any year, the total amount of property taxes abated by the City by this and other resolutions, if any, does not exceed the greater of ten percent (10%) of the current levy or $200,000. (e) At least 50 percent of the payroll of the operations of the Developer Will be for employees engaged in the material staging and production of tangible personal property by procedures commonly regarded as manufacturing, processing, fabrication, or assembling which changes some existing material into new shapes, new qualities, or new combinations and consequently the Developer is a "Qualified Business" pursuant to Section 469.1813 Subd. 6b of the Abatement Law. 1623868vl Terms of Abatement. The Abatement is hereby approved; provided, however, the this approval is contingent upon the approval by Sherburne County of an abatement program for the Project upon the same terms as set forth below for the County's share of property tax amount which the County receives from the Property. The terms of the Abatement are as follows: (a) The Abatement shall be for up to twelve (12) years and shall apply to the taxes payable in the years 2006 through 2017, inclusive. (b) The City will abate 100% of the City's share of property tax amount which the City receives from the Property, not to exceed $100,760. (c) The Abatement shall be subject to all the terms and limitations of the Abatement Law. (d) The Abatement may not be modified or changed during its term. The motion for the adoption of the foregoing resolution xvas made by member and duly seconded by member and, upon a vote being taken thereon after full discussion thereof; the following voted in favor thereof: and the following voted against the same: Whereupon said resolution was declared duly passed and adopted. 1623868vl 2 STATE OF MINNESOTA ) ) SS COUNTY OF SHERBURNE) I, the undersigned, being the duly qualified and acting Administrator of the City of Elk River, Minnesota (the "City"), by reason of my office as Administrator, DO HEREBY CERTIFY that I have compared the attached and foregoing extract of minutes with the original thereof on file in my office, and that the same is a full, true and complete transcript of the minutes of a meeting of the City Council of the City, duly called and held on the date therein indicated, insofar as such minutes relate to property tax abatements for the Orluck Industries, Inc. Project. WITNESS my hand this 8th day of March, 2004. City Administrator 1623868vl TAX ABATEMENT AND BUSINESS SUBSIDY AGREEMENT BY AND BETWEEN CITY OF ELK RIVER, MINNESOTA AND ORLUCK iNDUSTRIES, iNC. 1023869vl TABLE OF CONTENTS Page ARTICLE I DEFINITIONS...'. ............................................................................................. 1 Section 1.1 Definitions ............................................................................................ 1 ARTICLE II REPRESENTATIONS AND WARRANTIES ................................................ 3 Section 2.1 Representations and Warranties of the City ......................................... 3 Section 2.2 Representations and Warranties of the Developer ............................... 3 ARTICLE III Section Section Section Section Section Section Section 3.7 Section 3.8 Section 3.9 ARTICLE IV Section 4.1 Section 4.2 Section 4.3 Section 4.4 Section 4.5 Section 4.6 ARTICLE V Section 5.1 Section 5.2 Section 5.3 Section 5.4 Section 5.5 Section 5.6 Section 5.7 UNDERTAKINGS BY DEVELOPER AND CITY ....................................... 5 3.1 Construction of Project and Conveyance of Tax Abatement Property ................................................................................................ 5 3.2 Limitations on Undertaking of the City ............................................... 5 3.3 Commencement and Completion of Construction ............................... 5 3.4 Damage and Destruction ...................................................................... 5 3.5 No Change in Use of Project ............................................................... 6 3.6 Prohibition Against Transfer of Project and Assignment of Agreement ............................................................................................ 6 Minimum Market Value and Real Property Taxes .............................. 6 Business Subsidies Act ........................................................................ 7 Duration of Abatement Program .......................................................... 8 EVENTS OF DEFAULT ................................................................................. 9 Events of Default Defined ................................................................... 9 Remedies on Default ................................................................. i .......... 9 No Remedy Exclusive .......................................................................... 9 No Implied Waiver .............................................................................. 9 Agreement to Pay Attorney's Fees and Expenses .............................. 10 Release and Indemnification Covenants ............................................ 10 ADDITIONAL PROVISIONS ...................................................................... 11 Conflicts of Interest ............................................................................ 11 Titles of Articles and Sections ........................................................... 11 Notices and Demands ........................................................................ 11 Counterparts ....................................................................................... 11 Law Governing .................................................................................. ! 1 Duration ............................................................................................. 12 Provisions Surviving Rescission or Expiration .................................. 12 1623869vl -i- TAX ABATEMENT AND BUSINESS SUBSIDY AGREEMENT THIS AGREEMENT, made as of the __ day of April, 2004, by and among the City of Elk River, Minnesota (the "City"), a municipal corporation and political subdivision of the State of Minnesota, and Orluck Industries, Inc., a Minnesota corporation (the "Developer"), W1TNESSETH: WHEREAS, pursuant to Minnesota Statutes, Sections 469.1812 through 469.1815, the City has established a Tax Abatement Program; and WHEREAS, the City believes that the development and construction of a certain Project (as defined herein), and fulfillment of this Agreement are vital and are in the best interests of the City, xvill result in preservation and enhancement of the tax base, provide employment opportunities and are 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 WHEREAS, the requirements of the Business Subsidy Law, Minnesota Statutes, Section 116J.993 through 116J.995, apply to this Agreement; and WHEREAS, the City has adopted criteria for awarding business subsidies that comply with the Business Subsidy Law, after public hearings for which notice was published; and WHEREAS, the Council has approved this Agreement as a subsidy agreement under the Business Subsidy Law. 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: 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 Elk River, Minnesota; County means Sherburne County, Minnesota; t623869vl Developer means Orluck Industries, Inc., a Minnesota corporation, its successors and assigns; Event of Default means any of the events described in Section 4.1; Prqject means the construction by the Developer of an approximately 20,000 square foot light manufacturing facility to be located in the City; State means the State of Minnesota; Tax Abatement Act means Minnesota Statutes, Sections 469.1812 through 469.1815; Tax Abatement Program means the actions by the City pursuant to Minnesota Statutes, Section 469.1812 through 469.1815, as amended, and undertaken in support of the Project; Tax Abatement Property means the real property identified as Lot 1, Block 2, Country Crossing Business Center, located in the City; Tax Abatements means 100% of the City's share of real estate taxes on the Tax Abatement Property abated in accordance with the Tax Abatement Program. t623869v1 ~ 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 a political subdivision of the State and has the power to enter into this Agreement and carry out its obligations hereunder. (2) The Tax Abatement Program was created, adopted and approved in accordance with the terms of the Tax Abatement Act. (3) To finance the costs of the Project to be undertaken by the Developer, the City proposes, subject to the further provisions of this Agreement, to convey the Tax Abatement Property to the Developer and apply the Tax Abatements to reimburse the City for a portion of the costs of the Tax Abatement Property as further provided in this Agreement. (4) The City has made the findings required by the Tax Abatement Act for the Tax Abatement Program. Section 2.2 Representations and Warranties of the Developer. The Developer makes the following representations and warranties: (1) The Developer has the power to enter into this Agreement and to perform its obligations hereunder and is not in violation of its articles or bylaws or any local, state or federal laws. (2) The Developer is a corporation validly existing under the laws of this State and has full power and to enter into this Agreement and carry out the covenants contained herein. (3) The Developer will cause the Project to be constructed in accordance with the terms of this Agreement and all local, state and federal laws and regulations (including, but not limited to, environmental, zoning, energy conservation, building code and public health laws and regulations). (4) The Developer will obtain or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, state, and federal laws and regulations which must be obtained or met before the Project may be lawfully constructed (5) 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. 1623869v I 3 (6) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the ftflfillment 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. (7) The Developer will cooperate fully with the City with respect to any litigation commenced with respect to the Project. (8) 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. 1623860v1 4 ARTICLE III UNDERTAKINGS BY DEVELOPER AND CITY Section 3.1 Construction of Project and Conveyance of Tax Abatement Property. (1) The costs of the construction of the Project shall be paid by the Developer. The Developer will construct the Project in accordance with the approved construction plans and at all times prior to the termination of this Agreement will operate and maintain, preserve auld keep the Project or cause the Project to be maintained, preserved and kept with the appurtenances and every part and parcel thereof, in good repair and condition. (2) The City shall convey the Tax Abatement Property to the Developer by quit claim deed for a purchase price of $1.00 simultaneously with the Developer's closing with the provider of financing sufficient to complete the construction of the Project provided the Developer has delivered an executed copy of this Agreement to the City and has obtained a building permit for the Project~ (3) If the Developer fails to substantially complete the Project by December 31, 2005, then the Developer shall, at its option, either (i) shall re-convey the Tax Abatement Property to the City by quit claim deed, or (ii) shall remit to the City the sum of $201,520, which is agreed upon by the parties hereto to represent the fair market value of the Tax Abatement Property, it being the intent of this Agreement that the conveyance or transfer of the Tax Abatement Property to the Developer shall be conditioned on the Developer's construction of the Project, and that upon the failure by the Developer to construct the Project, all the rights and interest in and to the Tax Abatement Property conveyed to the Developer, and that all rights and interests of the Developer, and any assigns or successors in interest to and in the Tax Abatement Property shall revert to the City, and the Developer shall be released from its obligations under this Agreement. Section 3.2 Limitations on Undertaking of the City. Notwithstanding the provisions of Sections 3.1, the City shall have no obligation to the Developer under this Agreement convey the Tax Abatement Property to the Developer, if the City, at the time or times such payment is to be made, is entitled under Section 4.2 to exercise any of the remedies set forth therein as a result of an Event of Default which has not been cured. Section 3.3 Commencement and Completion of Construction. The DeVeloper shall complete the Project by December 31, 2005. All work with respect to the Project to be constructed or provided by the Developer shall be in conformity with the construction plans as submitted by the Developer and approved by the City. Nothing in this Agreement shall be deemed to impair or limit any of the City's rights or responsibilities under its zoning laws or construction permit processes. Section 3.4 Damage and Destruction. In the event of damage or destruction of the Project the Developer shall repair or rebuild the Project. 1623869vl 5 Section 3.5 No Chante in Use of Project. During the term of this Agreement, the Developer shall be subject to the continue to operate the Project as a manufacturing facility in which at least 50 percent of the payroll of the operations of the Project will be for employees engaged in the material staging and production of tangible personal property by procedures commonly regarded as manufacturing, processing, fabrication, or assembling which changes some existing material into new shapes, new qualities, or new combinations. Section 3.6 Prohibition Against Transfer of Project and Assignment of Agreement. The Developer represents and agrees that prior to the termination date of this Agreement the Developer shall not transfer the Project or any part thereof or any interest therein, without the prior written approval of the City. The City shall be entitled to require as conditions to any such approval that: (1) Any proposed transferee shall have the qualifications and financial responsibility, in the reasonable judgment of the City, necessary and adequate to fulfill the obligations undertaken in this Agreement by the Developer. (2) Any proposed transferee, by instrument in writing satisfactory to the City shall, for itself and its successors and assigns, and expressly for the benefit of the City, have expressly assumed all of the obligations of the Developer under this Agreement and agreed to be subject to all the conditions and restrictions to which the Developer is subject. (3) There shall be submitted to the City for revie~v and prior written approval all instruments and other legal documents involved in effecting the transfer of any interest in this Agreement or the Project. Section 3.7 Minimum Market Value and Real Property Taxes. (1) The Developer shall not seek a reduction of the market value of the Tax Abatement Property as determined by the County Assessor below $1,056,400 for any year so long as this Agreement remains in effect. Nothing in this Agreement prohibits the Developer from seeking, through the exercise of legal or administrative remedies, a reduction in such market value for property tax purposes to a minimum of $1,056,400 if the County Assessor determines the market value of the Tax Abatement Property is in excess of $1,056,400 (2) The Developer shall, so long as this Agreement remains in effect, pay all real property taxes with respect to all parts of the Tax Abatement Property acquired and owned by it which are payable pursuant to the provisions of the Assessment Agreement and any other statutory or contractual duty that shall accrue subsequent to the date of its acquisition of title to the Tax Abatement Property (or part thereof) and until title to the property is vested in another person. The Developer agrees that for tax assessments so long as this Agreement remains in effect: (a) It will not seek administrative review or judicial review of the applicability of any tax statute relating to the ad valorem property taxation of real property contained on the Tax Abatement Property determined by any tax official to be applicable to the Project or the Developer or raise the inapplicability of any such tax 1623869vi 6 statute as a defense in any proceedings with respect to the Tax Abatement Property, including delinquent tax proceedings; provided, however, "tax statute" does not include any local ordinance or resolution levying a tax; (b) 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 Tax Abatement Property determined by any tax official to be applicable to the Project or the Developer or raise the unconstitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings with respect to the Tax Abatement Property; provided, however, "tax statute" does not include any local ordinance or resolution levying a tax; (c) It will not seek any tax deferral or abatement, either presently or prospectively authorized under Minnesota Statutes, Section 469.181, or any other State or federal law, of the ad valorem property taxation of the Tax Abatement Property so long as this Agreement remains in effect. Section 3.8 Business Subsidies Act. (1) In order to satisfy the provisions of Minnesota Statutes, Sections 116J.993 to 116J.995 (the "Business Subsidies Act"), the Developer acknowledges and agrees that the amount of the "Business Subsidy" granted to the Developer under this Agreement is the value of the Tax Abatement Property $201,520, and that the Business Subsidy is needed because the Project is not sufficiently feasible for the Developer to undertake without the Business Subsidy. The public purpose of the Business Subsidy is to develop new jobs within the City and to increase the tax base in the City. The Developer agrees that it will meet the following goals (the "Goals"): It will create at least__ full-time equivalent jobs in connection with the development of the Project at a direct hourly wage of at least $__ per hour within two years from the "Benefit Date", which is the date the Project is completed. (2) If the Goals are not met, the Developer agrees to repay all or a part of the Business Subsidy to the City, plus interest ("Interest") set at the implicit price deflator defined in Minnesota Statutes, Section 275.70, Subdivision 2, accruing from and after the Benefit Date, compounded semiannually. If the Goals are met in part, the Developer will repay a portion of the Business Subsidy (plus Interest) determined by multiplying the Business Subsidy by a fraction, the numerator of which is the number of jobs in the Goals which were not created at the wage level set forth above and the denominator of which is __ (i.e. number of jobs set forth in the Goals). (3) The Developer agrees to (i) report its progress on achieving the Goals to the City until the later of the date the Goals are met or two years from the Benefit Date, or, if the Goals are not met, until the date the Business Subsidy is repaid, (ii) include in the report the information required in Subdivision 7 of the Jobs Act on forms developed by the Minnesota Department of Employment and Economic Development, and (iii) send completed reports to the City. The Developer agrees to file these reports no later than March 1 of each year commencing March 1, 2005, and within 30 days after the deadline for meeting the Goals. The City agrees that 1623869vl 7 if it does not receive the reports, it will mail the Developer a warning within one week of the required filing date. If within 14 days of the post marked date of the warning the repons are not made, the Developer agrees to pay to the City a penalty of $100 for each subsequent day until the report is filed up to a maximum of $1,000. (4) The Developer agrees to continue operations of the Project for at least five (5) years after the Benefit Date. (5) Other than the Tax Abatements, there are no other state or local government agencies providing financial assistance for the Project other than the City. Section 3.9 Duration of Abatement Program. The Tax Abatement Program shall exist for a period of up to twelve years beginning with real estate taxes payable in 2006 through 2017. The City shall apply the Tax Abatements received by the City to reimburse itself for the cost of the Tax Abatement Property. 1623869v I 8 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: (1) Failure by the Developer to timely pay any ad valorem real property taxes, special assessments, utility charges or other governmental impositions with respect to the Project. (2) Failure by the Developer to cause the construction of the Project to be completed pursuant to the terms, conditions and limitations of this Agreement. (3) Failure by the Developer to observe or perform any other covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. Section 4.2 Remedies on Default. Whenever any Event of Default referred to in Section 4.1 occurs and is continuing, the City, as specified below, may take any one or more of the following actions after the giving of thirty (30) days' written notice to the Developer 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 its default and Continue its performance under this Agreement. (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, bm 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 1623869vi 9 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 they shall, on demand therefor, pay to the City the reasonable fees of such attorneys and such other expenses so incurred by the City. Section 4.6 Release and Indemnification Covenants. (1) The Developer releases from and covenants and agrees that the City and its governing body members, officers, agents, servants and employees shall not be liable for and agrees to indemnify and hold harmless the City and its governing body members, officers, agents, servants, and employees against any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Project. (2) Except for any willful misrepresentation or any willful or wanton misconduct of the following named parties, the Developer agrees to protect and defend the City and its governing body members, officers, agents, servants and employees, noxv or forever, and further agrees to hold the aforesaid harmleSs from any claim, demand, such, action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising from a breach of the obligations of the Developer under this Agreement, or the transactions contemplated hereby or the acquisition, construction, installation, ownership, maintenance and operation of the Project. ~ (3) The City and its governing body members, officers, agents, servants and employees shall not be liable for any damages or injury to the persons or property of the Developer or its officers, agents, servants or employees or any other person who may be about the Project due to any act of negligence of any person. (4) All covenants, stipulations, promises, agreements and obligations of the City contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the City and not of any governing body member, officer, agent, servant or employee of the City in the individual capacity thereof. 1623869vl 10 ARTICLE V ADDITIONAL PROVISIONS Section 5.1 Conflicts of Interest. No member of the governing body or other official of the City shall 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 5.2 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 5.3 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: Orluck Industries, Inc. (2) in the case of the City is addressed to or delivered personally to the City at: City of Elk River Elk River City Hall 13065 Orono Parkway Elk River, MN 55330-5600 or at such other address with respect to any such party as that party may, from time to time, designate in writing and forward to the other, as provided in this Section. Section 5.4 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 5.5 Law Governing. This Agreement will be governed and construed in accordance with the laws of the State of Minnesota. 623869vl 1 1 Section 5.6 Duration. This Agreement shall remain in effect through December 31, 2017, unless earlier terminated or rescinded in accordance with its terms. Section 5.7 Provisions Surviving Rescission or Expiration. 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. 1623869vl 12 IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its name and on its behalI; and the Developer has caused this Agreement to be duly executed in its name and on its behalf, on or as of the date first above written. ORLUCK INDUSTRIES, INC. By. Its By Its This is a signature page to the Tax Abatement and Business Subsidy Agreement by and between the City of Elk River, Minnesota and OrlUck Industries, Inc.. 1623869vl CITY OF ELK RIVER, MINNESOTA By. Its Mayor By. Its Administrator This is a signature page to the Tax Abatement and Business Subsidy Agreement by and between the City of Elk River, Minnesota and Ortuck Industries, Inc.. 1623869vl