8.1. EDSR 08-08-2005 ITEM # 8.1.
City of
Elk
River
MEMORANDUM
TO: Economic Development Authority
FROM: Heidi Steinmetz, Assistant Director of Economic Development
DATE: August 8, 2005
SUBJECT: Consider Recommendation to City Council for Approval of Tax
Rebate Financing Assistance to Provo Enterprises, LLC
(Alliance Machine, Inc.)
Attachments
• Public Hearing Notice,Elk River Star News,August 3, 2005
• • Northstar Business Park Preliminary Plat
• Memo from Sid Inman of Ehlers &Associated dated August 3, 2005
• Resolution Approving Property Tax Abatement
• DRAFT Tax Abatement and Business Subsidy Agreement
Background
On July 11, 2005, the EDA reviewed a Tax Rebate Financing (TRF) concept for Provo
Enterprises,LLC (who will lease the property to Affiance Machine, Inc.) and recommended
that the City Council call a public hearing for August 15, 2005 to consider providing TRF
assistance to Provo Enterprises,LLC. Attached is the public hearing notice that appeared in
the Elk River Star News on August 3,2005.
Established in 1997,Affiance Machine, Inc. conducts light,precision machining of plastic
and metal components for national and international clients in the aerospace,medical,
defense and computer industries. The company is owned and managed by father and son,
Pat Provo and Bryan Provo. Bryan is a graduate of Elk River High School. The company
currently leases 18,000 SF in Maple Grove.
It is proposed that Provo Enterprises,LLC will purchase the land"up front" from the EDA
and that the City and County will reimburse the company 100% of the land cost over an
estimated 10-year period.
11111
Consider Recommendation to City Council for Approval of Tax Rebate Financing Assistance to Provo Enterprises,LLC
(Alliance Machine,Inc)
August 8,2005 EDA Meeting
Page 2 of 2
• Below is a summary of the project:
City Assistance $103,978,which is 50% of the land cost
Building Size
Lot Size
18,000 SF
2.84 acres to accommodate a 10,000 SF expansion (see attached map)
Jobs Retained 30 ($20 average hourly wage)
Jobs Created 9 ($15 minimum hourly wage)
On July 27,2005, the Sherburne County Economic Development Alliance (SCEDA)
recommended that the Sherburne County Board of Commissioners call a public hearing for
August 16, 2005 to consider TRF assistance to Provo Enterprises,LLC
(Affiance Machine, Inc.) for the remaining 50% of the land cost ($103,978).
Update
The necessary analyses regarding the use of TRF assistance for this project have been
completed.
Sid Inman of Ehlers and Associates has provided the attached memo regarding the "But
For" analysis for the project and has indicated that the amount of TRF assistance proposed
is justified. Mr. Inman will be in attendance this evening to answer any questions regarding
the "But For" analysis.
Staff has also evaluated the project based on the City's TRF Proposal Review Worksheet,
which indicates that the Affiance Machine project scored 41.5 out of 45 possible points.
Requested Action
Staff requests that the EDA recommend to the City Council approval of Tax Rebate
Financing Assistance to Provo Enterprises,LLC (Affiance Machine, Inc.).
Following the City Council's public hearing on August 15, 2005 regarding the use of TRF
for this project, staff will recommend the City Council's approval of the attached Resolution
Approving Property Tax Abatement to Provo Enterprises,LLC and a final version of the
attached DRAFT Tax Abatement and Business Subsidy Agreement.
Additional Information
Affiance Machine has recently submitted a request for an EDA Micro Loan in the amount of
$100,000. Staff anticipates the EDA's consideration of this request at its September 12,
2005 meeting following a recommendation of the EDA Finance Committee.
Visit us,on the web at www.erstarnews.com • Wednesday,August 3,2005/Star Nei
PUBLIC NOTI-CES
• please call the City of Otsego at "Company") that the City grant business hours.
INS 763.441.4414 in advance of the a business subsidy and abate to All interested persons mayaccessory essoUD ry str
d ,
INS
are o file and may meeting. the Company, or a related enti- appear at the August 15th ubli120 square feet may be
r o d at the CITY OF OTSEGO ty of the Company, 90% of the hearingand
tc'M present their views with wood,vinyl lap side
K unicipal BY:Karee Rowell property taxes to be levied by orally or in writing. Anyone need- siding,and/or masonry.I:
River, Minnesota. Deputy City Clerk the City on 3.70 acres of Lot 2, ing reasonable accommodations or and R-la districts, and
arge. for•specifica- • (Ag3) Block 1,Northstar Business Park an interpreter should contact the greater than 2 1/2 acre
to prospective bid- in the City (the "Property") for City Clerk's office at the City Hall, R-lb, R-lc, R-1d, Rle
CITY OF ELK RIVER an approximately 30,000 square telephone(763)635-1000. dential PUD districts,
vlunicipal Utilities :- NOTICE OF foot light industrial facility (the (Ag3)
y Takle,President PUBLIC HEARING "Improvements")to be constructed g structures may be finis]
Bryan Adams,P.E. REGARDING • PROPOSED by the Company.The total amount CITY OF ELK RIVER metal panels, oa,and/or
General Manager PROPERTY TAX ABATEMENTS. of the taxes proposed to be abated- - NOTICE OF Accing, moryl siding, e
•3-10) AND.BUSINESS SUBSIDY FOR by the City on the Property for a PUBLIC HEARING 120square feet cinrfloor
THE MEDICAL EXTRUSION fifteen year period is estimated to REGARDING PROPOSED any zoning district, mai
'OTSEGO TECHNOLOGIES, INC. be not more than $191,663. The PROPERTY TAX ABATEMENTS finished with canvas,fabr
)F WRIGHT PROJECT City Council will consider grant- FOR THE RST CAYO, LLC
)F PUBLIC • NOTICE IS HEREBY GIVEN ing a property tax.abatement in PROJECT lowinc membranes with
exc
RING that the City Council of the City response to the request. -_ NOTICE- IS HEREBY GIVEN 1 In the Rla Lion:and Al Distr
aningCommission of Elk River,Minnesota,will hold Information about the proposed that the City Council of the City neered fabric accessory st
Public Hearing a public hearing at .a,meeting tax abatements and business of Elk River,Minnesota,will hold shall be allowed provide(
August 2005, at of the City Council beginning at subsidy and a copy of the draft a public hearing at a meeting of lowingconditions are met
;oon.after as time 6:30 p.m., on Monday,August 15, Tax Abatement and Business the City Council beginning at 6:30 i. The parcel is ten ,
Otsego City Hall, 2005,to be held at City Hall, Elk Subsidy Agreement for the recipi- p.m.,on Monday,August 15,2005, greater.
venue:NE,Otsego. River,:Minnesota, on the request ent are available for inspection to be held at City Hall,Elk River, ii. The'applicant shall
a City of Otsego. of Medical Extrusion Technologies, at the office of the Director of the Minnesota,on the request of RST • building permit and the
follows: Inc. (the "Company") that the Economic Development Authority Cayo,LLC(the"Company")to have shall meet the wind and s:
Comprehensive City.grant a'business subsidy and at the City Hall during regular the City abate to the Company requirements of the build
ish policies per- abate to the Company,or a related business hours. 100% of the property taxes to be iii. The structure will
to-be-constructed 'entity of the Company,90%of the All interested persons may levied by the City on 2.48 acres ofsidered permanent and
onal Wastewater property taxesto be levied by the appear at the August 15th public Lot 5,Block 1,Elk River Business included in the maximum
City on 2.64 acres of Lot 2,Block 2, hearing and present their views Park in the City(the"Property")for of detached structures a
parties are invited Northstar Business Park located orally or in writing. Anyone need- an approximately 20,000 square square footage of accesso
ublic Hearing to in the.City (the "Property") for ing reasonable accommodations or foot light industrial facility (theture calculation.
estions, concerns an approximately 20,000 square an interpreter should contact the "Improvements") to be constructed iv. The structure shall r
'f you would like foot light industrial facility (the City Clerk's office at the City Hall, by the Company.The total amount required accessory struct
ion regarding the -"Improvements")to be constructed telephone(763)635-1000. of the taxes proposed to be abated' backs for the zoning dist
Public Hearing, by the Company.The total amount (Ag3). by the City 'on the Property for shall be no closer than 25(
;ay tsego at of the taxes proposed to be abated a ten year period is estimated to residential structure on a
ad of the by'the City on the'Property for a CITY OF ELK RIVER be not more than $75,000. The cent lot.
fifteen year period is estimated to NOTICE OF City Council will consider grant- v.The structure shall be;
(TY OF OTSEGO be not more than $127,716. The ' ' ` PUBLIC HEARING ing a property tax abatement in if the parcel is subdivided
BY:Karee Rowell City Council will consider grant- REGARDI-NG PROPOSED response to the request. smaller than five acres in
)eputy City Clerk ing a property tax abatement in PROPERTY TAX ABATEMENTS Information about the proposed With the exception of the
I3) response to the request. AND B ISTNFSS SUBSIDY l;'QR tax abatements and a
Information about the proposed THE SE copy of thenshall notgalvanizedbe tcorrugate(
Meta P P ENTERPRIS draft Tax.:Abatement Agreement shall not be allowed.Meta
OTSEGO tax abatements and business LLC PROJEC
F WRIGHT subsidyand a copyfor the recipient are avail- shall�e allowed so a strut
F PUBLIC: of the draft NOTICE IS HEREBY GIVEN able for inspection at the office vial on any accessory strut
Tax Abatement and Business that the City Council of the City of the Director'of the Economic Section 2.. That this or
1G Subsidy Agreement for the recipi- of Elk River,Minnesota,will hold Development Authority at the shall,take effect upon pub
ningCommission •ent are available for inspection a public hearing at a meeting of City-Hall during regular business as provided by law.
Public Hearing at the office of the Director of the the City Council beginning at 6:30 hours.
kugust 2005, at Economic Development Authority p.m.,on Monday,AugustCouncilcof adopted by t
;on after as time .at the,City Hall during regular. to be held at CityHall,Elk River,' appear
interested esteu persons may thi18th day the City of Ell
)tsego City Hall, business hours. ars at the August 15th public this of July,2005.
Minnesota,on the request of Provo ,hearing and present their views Stephanie 14
mud NE, Otsego All interested persons may Enterprises,LLC(the"Company") orally or in writing. Anyone need-
e Duke Realty appear at the August 15th public that the City grant a business ing reasonable accommodations or Attest:
0 Utica Avenue hearing and present their views subsidy and abate to the Company an interpreter should contact the • Joan Schmidt
, St. Louis Park orally or in writing. Anyone need- 90% of the property taxes to be : City Clerk's office at the City Hall, City Clerk
ehaif of owners ing reasonable accommodations or levied by the City on 2.84 acres of telephone(763)635-1000.
operty, LLC and an interpreter should contact the 'Lot 3,Block 1,Northstar Business (Ag3) ( 3)
s Development City Clerk's office at the City Hall, in• the City (the "Property") for NOTICE
t properties are telephone(763)635-1000. an approximately 18,000 square ORDINANCE 05-16 , c
and 118-500 CITY OF ROGER
(Ag3) foot light industrial facility (the CITY OF ELK RIVER Notice is hereby given tl
of approximately "Improvements") to be constructed AN ORDINANCE OF THE CITY Planning 'Commission a
'ection 35,Range • CITY OF ELK RIVER by the Company.The total amount OF ELK RIVER AMENDING conducting'a public hear
21 located east NOTICE OF of the taxes proposed to be abated SECTION 30-793 —ACCESSORY Tuesday,Au
005,
den 60th Street PUBLIC HEARING by the City on'the Property for a BUILDINGS OF THE CITY CODEp.m. athe�Rogers16,
2 Corn
.he request is as . REGARDING PROPOSED fifteen year period is estimated to OF ORDINANCES
PROPERTY TAX ABATEMENTS be not more than $183,218. The Case No.OA 05-09 Room, locatedcos ae an
a e
Drive, toder r
an review' for AND BUSINESS SUBSIDY FOR City Council will consider grant- The City,Council of the City-oftoothe Rogers Zoning Or(
approximately THE O'BRIEN HOLDINGS, LLC ing a property tax abatement in Elk.River does hereby ordain as . restricting access to corn
'eel of industrial PROJECT response to the request. • follows:
rehousing uses . NOTICE IS HEREBY GIVEN Information about the proposed Section 1.1 Section 30-793 (l)access and double er lot.
ronted lots to o
pri build that the City Council of the City , tax abatements and business titled, Accessory Buildings , of Persons wishing to comer
of Elk River,Minnesota,will hold . subsidy and a copy of the draft the City of Elk River Code of , this matter will be heard
rties invited a public hearing at a meeting Tax Abatement and Business Ordinances shall be amended read time.
blic Hearing to of the City Council beginning at Subsidy Agreement for the recipi- as follows:
stions, concerns 6:30 p.m., on Monday,August 15, ent are available for' inspection SECTION 30-793. AccessoryRespectfully,Gary.
you would like 2005,to be held at City Hall,Elk at the office'of the Director of the Buildings ' City Clerk/Admini
n regarding the River, Minnesota, on the request Economic Development Authority (f)On lots less than 2 1/2 acres in (Ag3)
Public Hearing of O'Brien Holdings, LLC (the at .the City Hall during regular the R lb,R,1c,R-1d,R-le and resi-
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0 EHLERS
• &. ,, ssacIA —ES INC MEMORANDUM
DATE: Aug 3,2005
TO: Heidi Steinmetz, City of Elk River
Lori Johnson, City of Elk River
FROM: Sid Inman,Ehlers and Associates Inc
RE: "But For"Analyses for CDI,MET, lliance Machin and Classic Acrylics
You have asked us to review the abatement proposals that have been presented and comment on the need
for the abatement.This is what is referred to as the"But For" analysis.
In the past we have used two different methods of reviewing the need for various types of assistance. In
some cases we have compared the purposed project to a similar project and review the returns on equity
as the basis for the need for assistance.
Since these projects are somewhat unique,we felt it would be better to use a second method of comparing
cost of acquiring the site in the proposed locations with the cost in similar locations. The City of Elk
• River's estimates and abatement assistance amounts are in"future dollars"and are designed to bring the
cost of the site to zero dollars over a 12 to 14 year period. My calculations are based on the calculations
that city staff prepared to determine the purchase price and the assistance.
Attached is a summary chart that shows the impact in"future value dollars"bringing the purchase price to
zero dollars per square foot.
The second portion of the chart shows the net price in"present value dollars." Since the buyers will
receive the full amount of the abatement over 12 to 14 years to arrive at a value in today's dollars we
must add a discount rate.Note the range from .58 to .89 if a function of the size of the lot verses the size
of the building.
In summary, if you assume that the City's major competition is still offering the land at zero to
$.25 a square foot, either of the above analyses satisfies a needs requirement and could be
deemed to be justifiable.
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EXTRACT OF MINUTES OF MEETING
OF THE CITY COUNCIL OF THE
CITY OF ELK RIVER, MINNESOTA
HELD: August 15, 2005
Pursuant to due call and notice thereof, a meeting of the City Council of the City of Elk
River, Sherburne County, Minnesota, was duly called and held at the City Hall in said City on
Monday, the 15th day of August, 2005, at 6:30 o'clock p.m.
The following members were present:
and the following were absent:
Member introduced the following resolution and moved its
adoption:
RESOLUTION AUTHORIZING EXECUTION OF
A TAX ABATEMENT AND BUSINESS SUBSIDY AGREEMENT
•
BE IT RESOLVED by the City Council (the "Council") of the City of Elk River,
Minnesota(the "City"), as follows:
1. Recitals.
(a) 'rovo Ente irises LLC (the "Developer") proposes to construct an
approximately 18,000 square foot light industrial 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 fifteen years in an amount not to exceed $183,218. The
abatement will apply to 100% of the City's share of the property taxes (the "Abatement")
derived from the property described as Lot 3, Block 1, Northstar Business Park (the
"Property").
(b) The Developer and the City have determined to enter into a Tax
Abatement and Business Subsidy Agreement providing for the City's tax abatement
assistance for the Project (the "Agreement").
(c) On the date hereof, the Council held a public hearing on the question of
the Abatement and business subsidy, and said hearing was preceded by at least 10 days
but not more than 30 days prior published notice thereof.
Minnesota Statutes,The Abatement is authorized under , Sections 469.1812
through 469.1815 (the "Abatement Law").
1793238v2
2. 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 and provide employment opportunities in the City.
(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 does not exceed the greater of ten percent (10%) of the current levy
or$200,000.
3. Terms of Abatement. The Abatement is hereby approved; provided, however,
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 fifteen (15) years and shall apply to the
• taxes payable in the years 2008 through 2022, inclusive.
(b) The City will abate 100% of the City's share of the property tax amount
which the City receives from the Property, not to exceed $183,218; provided that the
Developer will be paid 90% of the City's share of the annual property tax amount which
the City receives from the Property not to exceed $103,978.
(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.
4. Approval of Tax Abatement and Business Subsidy Agreement.
(a) The City Council hereby approves a Tax Abatement and Business Subsidy
Agreement with the Developer providing for payment of the Abatement and the City's
assistance for the Project in substantially the form submitted, and the Mayor and
Administrator are hereby authorized and directed to execute the Tax Abatement and
Business Subsidy Agreement on behalf of the City.
(b) The approval hereby given to the Tax Abatement and Business Subsidy
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.
1793238v2 2
• The motion for the adoption of the foregoing resolution was 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.
S
1793238v2 3
• STATE OF MINNESOTA )
) SS
COUNTY OF SHERBURNE)
I, the undersigned, being the duly qualified and acting Clerk of the City of Elk River,
Minnesota (the "City"), by reason of my office as Clerk, 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 and business subsidy for the Provo Enterprises, LLC
Project.
WITNESS my hand this day of August, 2005.
• City Clerk
1793238v2
rd
• (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 review 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 Real Property Taxes. 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 any 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
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
a portion of the Tax Abatement Property, which is approximately $103,978, and that the
1797281v1 6
[DRAFT
•
TAX ABATEMENT AND BUSINESS SUBSIDY AGREEMENT
BY AND BETWEEN
CITY OF ELK RIVER, MINNESOTA
AND
PROVO ENTERPRISES, LLC
•
179728lv1
ORAF7
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 UNDERTAKINGS BY DEVELOPER AND CITY 5
Section 3.1 Construction of Project and Reimbursement of Tax Abatement
Property Cost 5
Section 3.2 Limitations on Undertaking of the City 5
Section 3.3 Commencement and Completion of Construction 5
Section 3.4 Damage and Destruction 5
Section 3.5 Change in Use of Project 5
Section 3.6 Prohibition Against Transfer of Project and Assignment of
Agreement 5
Section 3.7 Real Property Taxes 6
Section 3.8 Business Subsidies Act 6
Section 3.9 Duration of Abatement Program 7
ARTICLE IV EVENTS OF DEFAULT 8
411 Section 4.1 Events of Default Defined 8
Section 4.2 Remedies on Default 8
Section 4.3 No Remedy Exclusive 8
Section 4.4 No Implied Waiver 8
Section 4.5 Agreement to Pay Attorney's Fees and Expenses 9
Section 4.6 Release and Indemnification Covenants 9
ARTICLE V ADDITIONAL PROVISIONS 10
Section 5.1 Conflicts of Interest 10
Section 5.2 Titles of Articles and Sections 10
Section 5.3 Notices and Demands 10
Section 5.4 Counterparts 10
Section 5.5 Law Governing 10
Section 5.6 Duration 11
Section 5.7 Provisions Surviving Rescission or Expiration 11
e
1797281v1 -i-
D AFT
411 TAX ABATEMENT AND BUSINESS SUBSIDY AGREEMENT
THIS AGREEMENT, made as of the 15th day of August, 2005, by and among the City
of Elk River, Minnesota (the "City"), a municipal corporation and political subdivision of the
State of Minnesota, and Provo Enterprises, LLC, a Minnesota limited liability company (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, will 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;
Benefit Date means the date on which a Certificate of Occupancy for the Project is issued
by the City;
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;
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City means the City of Elk River, Minnesota;
County means Sherburne County, Minnesota;
Developer means Provo Enterprises, LLC, a Minnesota limited liability company, its
successors and assigns;
Event of Default means any of the events described in Section 4.1;
Project means the construction by the Developer of an approximately 18,000 square foot
light industrial facility to be located in the City;
State means the State of Minnesota;
Tax Abatement Act means Minnesota Statutes, Sections 469.1812 through 469.1815;
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 all and any portion of the real property currently
identified as Lot 3, Block 1,Northstar Business Park, located in the City;
Tax Abatements means 90% of the City's share of annual real estate taxes on the Tax
4111 Abatement Property abated in accordance with the Tax Abatement Program.
I
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the City. The City makes the following
representations and warranties:
(1) The City is a municipal corporation and a political subdivision of the State and
has the power to enter into this Agreement and carry out its obligations hereunder.
e approved The Tax Abatement Program was created, adopted and 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.
IIISection 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, operating agreement or member
control agreement or any local, state or federal laws.
(2) The Developer is a limited liability company validly existing under the laws of
this State and has full power 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
411 foreseeable future, without the assistance and benefit to the Developer provided for in this
Agreement.
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11/ (6) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
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 but only to the extent that the City and the Developer are
not adverse parties to the litigation.
(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.
•
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ARTICLE III
UNDERTAKINGS BY DEVELOPER AND CITY
Section 3.1 Construction of Project and Reimbursement of Tax Abatement Property
Cost.
(1) The costs of the Tax Abatement Property and the construction of the Project shall
be paid by the Developer. The Developer will construct the Project in accordance with the
approved construction plans and at all times prior to the termination of this Agreement will
operate and maintain, preserve and keep the Project or cause the Project to be maintained,
preserved and kept with the appurtenances and every part and parcel thereof, in good repair and
condition.
(2) Upon submission to the City of a purchase agreement and settlement statement
relating to the purchase of the Tax Abatement Property in an amount not less than the
Reimbursement Amount, the City shall reimburse the Developer for the costs of the Tax
Abatement Property actually incurred in an amount not to exceed $103,978 (the "Reimbursement
Amount")pursuant to the Abatement Program as provided in Section 3.8.
Section 3.2 Limitations on Undertaking of the City. Notwithstanding the provisions of
• Sections 3.1, the City shall have no obligation to reimburse the Developer for the costs of the
Tax Abatement Property, 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 , 200_. 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.
Section 3.5 Change in Use of Project. The City's obligations pursuant to this Agreement
shall be subject to the continued operation of the Project by the Company.
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
40 prior written approval of the City. The City shall be entitled to require as conditions to any such
approval that:
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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
increase the tax base in the City. The Developer agrees that they will meet the following goals
(the "Goals"): it will create at least nine (9) full time jobs in connection with the development of
the Development Project at an hourly wage of at least $15.00 per hour plus benefits within two
years from the "Benefit Date", which is the date the Developer occupies the Project.
(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 nine (9) (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
Authority until the later of the date the Goals are met or two years from the Benefit Date, or, if
the Goals are not met, until the date the Business Subsidy is repaid, (ii) include in the report the
information required in Section 116J.994, Subdivision 7 of the Business Subsidies Act on forms
developed by the Minnesota Department of Employment and Economic Development, and (iii)
send completed reports to the Authority. The Developer agrees to file these reports no later than
March 1 of each year commencing March 1, 2006, and within 30 days after the deadline for
meeting the Goals. The Authority agrees that 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 reports are not made, the Developer agrees to pay to the
Authority 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 and comparable tax abatements from the County,
there are no other state or local government agencies providing financial assistance for the
Project other than the City and the County.
(6) [There is no parent corporation of the Developer.] [ is the
parent corporation of the Developer].
Section 3.9 Duration of Abatement Program. The Tax Abatement Program shall exist
for a period of up to ten years beginning with real estate taxes payable in 2008 through 2022. On
or before February 1 and August 1 of each year commencing August 1, 2008 to and including
February 1, 2022 the City shall pay the Developer the amount of the Tax Abatements received
by the City in the previous six month period. The City may terminate the Tax Abatement
• Program and this Agreement at an earlier date if an Event of Default occurs and the City rescinds
or cancels this Agreement.
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ARTICLE IV
EVENTS OF DEFAULT
Section 4.1 Events of Default Defined. The following shall be "Events of Default" under
this Agreement and the term "Event of Default" shall mean whenever it is used in this
Agreement any one or more of the following events:
(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, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such right or power or
shall be construed to be a waiver thereof but any such right and power may be exercised from
time to time and as often as may be deemed expedient.
Section 4.4 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such waiver shall be
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• 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, now 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.
•
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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:
• Provo Enterprises, LLC
(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.
•
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Lir4 Li• Section 5.6 Duration. This Agreement shall remain in effect through December 31,
2022, 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.
•
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• IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its
name and on its behalf, and 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.
PROVO ENTERPRISES, LLC
By
Its
By
Its
S
This is a signature page to the Tax Abatement and Business Subsidy Agreement by and between
• the City of Elk River, Minnesota and Provo Enterprises, LLC.
179728lv1
•
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 Provo Enterprises, LLC.
1797281v1