8.4. EDSR 08-08-2005 ITEM # 8.4.
•
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 RST Cayo, LLC (Classic
Acrylics, Inc.)
Attachments
• Public Hearing Notice,Elk River Star News,August 3, 2005
• Site Location
• • 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 RST Cayo,
LLC (who will lease the property to Classic Acrylics, Inc.) and recommended that the City
Council call a public hearing for August 15, 2005 to consider providing TRF assistance to
RST Cayo,LLC. Attached is the public hearing notice that appeared in the Elk River Star
News on August 3, 2005.
Established in 1998, Classic Acrylics specializes in custom plastic fabrication for point-of-
purchase displays. The company is owned by three brothers, Stuart, Ron and Tom
Patterson. The company currently leases 10,000 SF in Dayton.
It is proposed that RST Cayo,LLC will purchase the land "up front" from the EDA and
that the City and County will reimburse the company 77% of the land cost over an estimated
10-year period.
Below is a summary of the project:
City Assistance $75,000,which is approx. 39.5% of the land cost
Building Size 20,000 SF
Lot Size 2.48 acres to accommodate a 5,000 SF expansion (see attached map)
Jobs Retained 13 ($15 average hourly wage)
Jobs Created 5 ($15 minimum hourly wage)
Consider Recommendation to City Council for Approval of Tax Rebate Financing Assistance to RST Cayo,LLC
(Classic Acrylics,Inc.)
August 8,2005 EDA Meeting
Page 2 of 2
• 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 RST Cayo,LLC (Classic Acrylics, Inc.) for an
additional 38.5% of the land cost ($75,000).
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 Classic Acrylics project scored 38.5 out of 45 possible points.
Requested Action
Staff requests that the EDA recommend to the City Council approval of Tax Rebate
Financing Assistance to RST Cayo,LLC (Classic Acrylics, 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 RST Cayo,LLC and a final version of the attached
DRAFT Tax Abatement and Business Subsidy Agreement.
•
Visit us on the web at wwwerstarnews.com • Wednesday,August 3,2005/Star Nel
PUBLIC NOTICES
please call the City of Otsego at "Company") that the City -grant business hours. dential PUD districts,
NS 763.441.4414 in advance of the a business subsidy and abate to All interestedpersons ma accessorystructures
are o le and may meeting. - the Company, or a related enti- appear at the Au ye7
r o d. at the gust 15th public 120 square feet may be
CITY OF OTSEGO ty of the Company, 90% of the hearing and present their views with wood,vinyl lap nidi:
a 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
to prospective bid- greater than 2 i/2 acre
in the City (the "Property") for City Clerk's office at the City Hall, R-lb, R-lc, R-ld, 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) structures may be finis]
y Takle,,PresidentPUBLIC HEARING "Improvements")to be-constructed
•
metal panels, wood, viny
Bryan Adams,P.E. REGARDING . PROPOSED by the Company.The total amount CITY OF ELK RIVER ing, metal siding, and/or
General Manager PROPERTY TAX ABATEMENTS. of the taxes proposed to be abated- - NOTICE OF Accessory
•3-10) AND BUSINESS SUBSIDY FOR by the City on the Property for a PUBLIC HEARING 120 squre 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 T ABATEMENTS
)F WRIGHT PROJECT City Council will consider finishedplastic em canvas,fith
)F PUBLIC - NOTICE IS HEREBY GIVEN ingagrant- FORO THE CR CAYO, L lowing
membranes with
RING property-tax abatement in PROJECT lowing exception:
that the City Council of the City response to the request. NOTICE IS HEREBY GIVEN In the Ria and Al Distr
nningCommission 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 provides
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
soon after as time 6:30 p.m., on Monday,August 15, Tax Abatenient 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.
'enue NE, Otsego. River, Minnesota, on the request ent are available for inspection 'to be held at City Hall,Elk River, ii. The'applicant shall
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 e
3 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
'ar-ties 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 struci
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(
;ittsego at of the taxes proposed to be abated a ten year period is estimated to residential structure on a
a of the by'the City on the Property.fora 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
g3) response to the request. AND BUSINESS SUBSIDY FOR tax abatements and a co
Information about the. proposed THE PROVO ENTERPRISES, draft Tax Abatement Agreement shalof the l notvanbe allowed.ed Meta
OTSEGO tax abatements and business LLC PROJECT.
F WRIGHT ubsidand a co for, the recipient are - avail- shall Abe allowed as a roofi]
F PUBLICG : y py of the draft NOTICE IS HEREBY GIVEN able for inspection at the office rial on any accessory struc
Tax Abatement and Business that the City Council of the City of the Director'of the Economic Section 2.. That this or
LING Subsidy Agreement for the recipi- of Elk River,Minnesota,will hold Development Authority at the shall,take effect upon pub
ning Commission 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. Passed and adopted by t
August 2005, at Economic Development Authority p.m.,on Monday,August 15,2005, All -interested persons may Council of the City of El]
)on after as time at the•City Hall during-regular to be held at City Hall, Elk River; appear at the August 15th public this 18th day of July,2005.
)tsego City Hall, business hours. Minnesota,on the request of Provo ,hearing-and present their views
)nue NE, Otsego. All interested persons may Enterprises,LLC(the"Company") Stephanie h
e Duke Realty appear at the August 15th public that the City orally s n leiacco. Anyone need-
0 Utica Avenue hearingand grant a business ing reasonable accommodations or Attest:
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
ehalf of owners ing reasonable accommodations or levied by the City on 2.84 acres of telephone(763)635-1000. (Ag3)
operty, LLC and an interpreter should contact the Lot 3,Block 1,Northstar Business (Ag3)
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 ROGERS
(Ag3) foot light industrial facility (the CITY OF ELK RIVER Notice is hereby given t]
of approximately "Improvements") to be constructed AN ORDINANCE OF THE CITY Planning -Commission v
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,August 16,2005,
)en 60th Street PUBLIC HEARING by the City on the Property for a BUILDINGS OF THE CITY CODE p.m. at the Rogers Com
`he request is as . REGARDING PROPOSED fifteen year period is estimated to OF ORDINANCES Room, located at 21201 Mc
PROPERTY TAX ABATEMENTS be not more than $183,218. The Case No.OA 05-09 Drive, to consider an amer
an review for AND BUSINESS SUBSIDY FOR City Council will consider grant- - The City,Council of the City-1)f to the Rogers Zoning Orc
approximately THE O'BRIEN HOLDINGS, LLC ing a property tax abatement in Elk.River does hereby ordain as restricting access to corn
'ret of industrial PROJECT response to the request. - follows: and double fronted lots to o:
rehousing uses . NOTICE IS HEREBY GIVEN Information about the proposed Section 1., Section 30-793 (f) (1)access per lot.
pri build- that the City Council of the City , tax abatements :and business ' titled, Accessory Buildings , of Persons wishing to comrr I.sof Elk River,Minnesota,will hold . subsidy and a copy of the draft the City of Elk River Code of this matter will be heard
rtieinvited 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: Respectfully,Gary:
stions, concerns 6:30 p.m., on Monday,August 15, entare available for inspection SECTION 30-793. Accessory
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 (Ag3)
P ty (f)On lots less than 2 1/2 acres in
Public Hearing, of O'Brien Holdings, LLC (the at the City Hall during regular the-11-1b,R-1c,R-id,R-le and resi-
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For More Information Contact: MARTY FISHER
PREMIER COMMERCIAL PROPERTIES,INC.
.
6131 Highway 10 NW' Ramsey' MN 55303 COMMERCIAL
PROPERTIES
763.862.2005
0 EHLERS
• Assad /\ -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,Alliance Machine 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) ci T Cayo, LLC (the "Developer")proposes to construct an approximately
20,000 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 ten years in an amount not to exceed $75,000. The abatement will apply to
100% of the City's share of the property taxes (the "Abatement") derived from the
property described as Lot 5, Block 1, Elk River Business Park(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").
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.
1792515v1
• (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, if any, 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, 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 ten (10) years and shall apply to the
taxes payable in the years 2008 through 2017, inclusive.
(b) The City will abate and pay to the Developer 100% of the City's share of
property tax amount which the City receives from the Property, not to exceed $75,000.
(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.
•
1792515v1 2
SThe 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.
•
•
1792515v1 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 for the RST Cayo, LLC. Project.
WITNESS my hand this day of August, 2005.
City Clerk
•
1111
1792515v1
BRAFT
S
TAX ABATEMENT AND BUSINESS SUBSIDY AGREEMENT
BY AND BETWEEN
CITY OF ELK RIVER, MINNESOTA
AND
RST CAYO, LLC
•
S
1797244v1
an) AF
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
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
•
1797244v1 ,i_
,,),..„ ...c
_., ,a
• 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 RST Cayo, 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
IIIwhich banking institutions in the City are authorized by law or executive order to close;
1797244v1
Ind '3 r li
• City means the City of Elk River, Minnesota;
County means Sherburne County, Minnesota;
Developer means RST Cayo, 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 20,000 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 5, Block 1 Elk River Business Park, 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.
11111
1797244v1 2
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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.
(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, 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
• foreseeable future, without the assistance and benefit to the Developer provided for in this
Agreement.
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r , :
{r _
• (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 $75,000 (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
prior written approval of the City. The City shall be entitled to require as conditions to any such
approval that:
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• (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 $75,000, and that the Business
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A &.
• Subsidy is needed because the Project is not sufficientlyfeasible for the Developer to undertake
p
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 five (5) 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 five (5) (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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y v r
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:
RST Cayo, 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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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.
S
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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.
RST CAYO, LLC
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 RST Cayo, LLC.
1797244v1
•
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 RST Cayo, LLC.
•
1797244v1