4.5. SR 06-04-2018
Request for Action
To Item Number
Mayor and City Council 4.5
Agenda Section Meeting Date Prepared by
Consent June 4, 2018 Amanda Othoudt, EDD
Item Description Reviewed by
Jackson Hills Residential Suites Development Cal Portner, City Administrator
Agreement
Reviewed by
Action Requested
Approve, by motion, a development agreement for Jackson Hills Residential Suites, LLC.
Overview
The Jackson Hills Residential Suites project is a proposed 40-unit market-rate and affordable housing
project located at the intersection of 6th Street and Jackson. The developer applied for Tax Increment
Financing (TIF) assistance through the establishment of a Housing TIF District to finance the portion
associated with affordable housing. The establishment of the housing TIF district was approved at the
April 16, 2018, City Council meeting.
Staff has been working to negotiate a development agreement with the developer. The final agreement is
ready for Council approval.
Click here to enter background/discussion text.
Financial Impact
None
Attachments
Jackson Hills Residential Suites, LLC Development Agreement
TIF DEVELOPMENT ASSISTANCE AGREEMENT
BETWEEN
CITY OF ELK RIVER, MINNESOTA
AND
JACKSON HILLS RESIDENTIAL SUITES, LLC
This document drafted by:
KENNEDY & GRAVEN, CHARTERED (JSB)
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, Minnesota 55402
(P) 612-337-9300
(F) 612-337-9310
519394v81SB EL185-49
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS............................................................................................................2
Section1.1. Definitions..............................................................................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES..........................................................5
Section 2.1. Representations and Warranties of the City...........................................5
Section 2.2. Representations and Warranties of the Developer.................................5
ARTICLE III UNDERTAKINGS BY DEVELOPER AND CITY................................................7
Section 3.1.
Total Development Costs and Public Costs...........................................7
Section3.2.
TIF Note.................................................................................................7
Section 3.3.
Income and Rent Restrictions................................................................9
Section 3.4.
Developer to Pay City's Fees and Expenses..........................................9
Section 3.5.
Compliance with Environmental Requirements..................................10
Section 3.6.
Construction Plans...............................................................................10
Section 3.7.
Commencement and Completion of Construction...............................1
l
Section 3.8.
Certificate of Completion....................................................................12
Section 3.9.
Additional Responsibilities of the Developer......................................12
Section 3.10.
Encumbrance of the Development Property........................................13
Section 3.11.
Business Subsidy Act...........................................................................13
Section 3.12.
Right to Collect Delinquent Taxes.......................................................13
Section 3.13.
Review of Taxes..................................................................................13
Section 3.14.
Rental License......................................................................................14
ARTICLE IV EVENTS OF DEFAULT........................................................................................15
Section 4.1.
Events of Default Defined...................................................................15
Section 4.2.
Remedies on Default............................................................................15
Section 4.3.
No Remedy Exclusive..........................................................................16
Section 4.4.
No Implied Waiver..............................................................................16
Section 4.5.
Indemnification of City........................................................................16
Section 4.6.
Reimbursement of Attorneys' Fees.....................................................17
ARTICLE V ADDITIONAL PROVISIONS................................................................................18
Section 5.1.
Restrictions on Use..............................................................................18
Section5.2.
Reports.................................................................................................18
Section 5.3.
Limitations on Transfer and Assignment.............................................18
Section 5.4.
Conflicts of Interest..............................................................................19
Section 5.5.
Titles of Articles and Sections.............................................................19
Section 5.6.
Notices and Demands..........................................................................19
Section 5.7.
No Additional Waiver Implied by One Waiver...................................20
Section5.8.
Counterparts.........................................................................................20
Section 5.9.
Law Governing....................................................................................20
Section 5.10.
Term; Termination...............................................................................20
Section 5.11.
Provisions Surviving Rescission, Expiration or Termination..............20
Section 5.12.
Superseding Effect...............................................................................20
Section 5.13.
Relationship of Parties.........................................................................20
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Section5.14. Venue...................................................................................................21
EXHIBIT A DESCRIPTION OF TIF DISTRICT.................................................................... A-1
EXHIBIT B LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY..............................B-1
EXHIBIT C PUBLIC DEVELOPMENT COSTS......................................................................0-1
EXHIBIT D FORM OF TAXABLE TIF NOTE....................................................................... D-1
EXHIBIT E CERTIFICATE OF COMPLETION OF PROJECT..............................................E-1
EXHIBIT F DECLARATION OF RESTRICTIVE COVENANTS ........................................... F-1
EXHIBIT G REPORT OF GEOTECHNICAL EXPLORATIONS ........................................... G-1
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TIF DEVELOPMENT ASSISTANCE AGREEMENT
THIS AGREEMENT, made as of the _ day of 2018, by and between the
City of Elk River, Minnesota (the "City"), a municipal corporation under the Constitution and
laws of the State of Minnesota, and Jackson Hills Residential Suites, LLC, a Minnesota limited
liability company (the "Developer"),
WITNESSETH:
WHEREAS, the City has undertaken a program to promote economic development and
job opportunities and to promote the development of land which is underutilized within the City,
and in connection therewith created a development project known as Development District No. 1
("Development District") and developed a Development Program (the "Development Program")
therefor pursuant to Minnesota Statutes, Sections 469.124 to 469.134, as amended (the
"Development District Act"); and
WHEREAS, pursuant to the provisions of Minnesota Statutes, Section 469.174 through
469.1794, as amended, (the "TIF Act"), the City has created, within the Development District,
the Tax Increment Financing District (Housing) No. 25 qualified as a housing tax increment
financing district (the "TIF District"), the legal description of which is attached hereto as
Exhibit A, and has adopted a tax increment financing plan therefor approved by the City Council
on April 16, 2018 (the "TIF Plan") which provides for the use of tax increment financing in
connection with certain development within the Development District and TIF District; and
WHEREAS, the Developer proposes to construct an approximately 40 -unit multifamily
affordable rental housing development and all related amenities and improvements, to be
completed, owned and operated by the Developer on property within the TIF District (the
"Project"); and
WHEREAS, the Developer has requested that the City use tax increment financing to
assist the Developer with certain costs thereof in order to fill the gap between the Total
Development Costs (as hereinafter defined) and the funds available to pay such costs;
NOW, THEREFORE, in consideration of the premises and the mutual obligations of the
parties hereto, each of them does hereby covenant and agree with the other as follows:
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ARTICLE I
DEFINITIONS
Section 1.1. Definitions. All capitalized terms used and not otherwise defined herein
shall have the following meanings unless a different meaning clearly appears from the context:
Administrative Expenses has the meaning set forth in Section 3.4;
Agreement means this TIF Development Assistance Agreement, as the same may be
from time to time modified, amended or supplemented;
Affiliate means a corporation, partnership, joint venture, association, business trust or
similar entity organized under the laws of the United States of America or a state thereof which
is directly controlled by or under common control with the Developer or any other Affiliate. For
purposes of this definition, control means the power to direct management and policies through
the ownership of at least a majority of its voting securities, or the right to designate or elect at
least a majority of the members of its governing body by contract or otherwise;
Architect means Douglas A. Moe Architects Inc., in Elk River, Minnesota;
Available Tax Increments means the Tax Increments received by the City less the amount
of Tax Increments, if any, which the City must pay to the school district, the County and the
State pursuant to the TIF Act including, without limitation, Minnesota Statutes, Sections
469.177, Subds. 9, 10, and 11; 469.176, Subd. 4h; and 469.175, Subd. la, as the same may be
amended from time to time;
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;
Completion Date means the date on which the Certificate of Completion with respect to
the Project is executed by the City pursuant to Section 3.8;
Construction Costs means the capital costs of the construction of the Project, including
the costs of labor and materials; construction management and supervision expenses; insurance
and payment or performance bond premiums; architectural and engineering fees and expenses;
property taxes; usual and customary fees or costs payable to the City, or any other public body
with regulatory authority over construction of the Project (e.g. building permits and inspection
fees); the developer fee; and all other costs chargeable to the capital account of the Project under
generally accepted accounting principles;
Construction Documents shall mean the following documents, all of which shall be in
form and substance acceptable to the City: (a) Evidence satisfactory to the City showing that the
Project conforms to applicable zoning, subdivision and building code laws and ordinances,
519394818B ELI 85-49
including a copy of the building permit for the Project; and (b) A copy of the executed standard
form of agreement between owner and architect for architectural services for the Project, if any;
Construction Plans means the plans, specifications, drawings and related Construction
Documents for the construction of the Project which shall be as detailed as the plans,
specifications, drawings and related Construction Documents which are submitted to the building
inspector of the City;
County means Sherburne County, Minnesota;
Declaration means the Declaration of Restrictive Covenants in substantially the form
attached hereto as Exhibit F;
Design Drawings means the floor plans, renderings, elevations and material
specifications for the Project to be prepared by the Architect;
Developer means Jackson Hills Residential Suites, LLC, a Minnesota limited liability
company, and its authorized successors and assigns;
Development Property means the real property legally described in Exhibit B attached to
this Agreement;
Event of Default means any of the events described in Section 4.1 hereof,
Final Payment Date means the earlier of (i) the date on which the entire principal and
accrued interest on the TIF Note has been paid in full; or (ii) February 1, 2036; or (iii) or any
earlier date this Agreement or the TIF Note is cancelled in accordance with the terms hereof or
deemed paid in full; or (iv) the February 1 following the date the TIF District is terminated in
accordance with the TIF Act;
Geotechnical Report means the Project 17-004 Report of Geotechnical Explorations,
dated February 21, 2017, prepared for the Briggs Companies by Independent Testing
Technologies, Inc., attached hereto as Exhibit G.
Payment Date means August 1, 2021 and each February I and August 1 thereafter to and
including the Final Payment Date; provided, that if any such Payment Date should not be a
Business Day, the Payment Date shall be the next succeeding Business Day;
Pledged Tax Increments means for any six month period, 90% of the Available Tax
Increments received by the City since the last Payment Date;
Project means the construction of an approximately 40 -unit affordable multifamily rental
housing development and all related amenities and improvements, to be completed, owned and
operated by the Developer on the Development Property;
Public Development Costs means the Public Development Costs of the Project identified
on Exhibit C attached hereto and any other cost incurred by the Developer, or its assigns, that
the City determines is eligible for reimbursement with Pledged Tax Increments;
519394v8 JSB EL185-49
Reimbursement Amount means the lesser of (i) $463,297 or (ii) the Public Development
Costs actually incurred and paid by the Developer;
Site Plan means the site plan prepared for the Development Property;
State means the State of Minnesota;
Tax Increments means the tax increments derived from the TIF District and the
improvements thereon which have been received and are permitted to be retained by the City in
accordance with the TIF Act including, without limitation, Minnesota Statutes, Section 469.177,
as amended;
Termination Date means the date the TIF District is terminated in accordance with the
TIF Act;
TIF Act means Minnesota Statutes, Sections 469.174 through 469.1794, as amended;
TIF District means the Tax Increment Financing District (Housing) No. 25 consisting of
the property legally described in Exhibit A attached hereto, which was established as a housing
district under the TIF Act;
TIF Note means the Taxable Tax Increment Revenue Note (Jackson Hills Residential
Suites, LLC Project) to be executed by the City and delivered to the Developer pursuant to
Article III hereof, a form of which is attached hereto as Exhibit D;
TIF Plan means the tax increment financing plan approved for the TIF District;
Total Development Costs means the costs of the Project as set forth on Exhibit E; and
Unavoidable Del ays means delays, outside the control of the party claiming their
occurrence, which are the direct result of strikes, other labor troubles, unusually severe or
prolonged bad weather, acts of God, acts of war or terrorism, fire or other casualty to the Project,
litigation commenced by third parties which, by injunction or other similar judicial action or by
the exercise of reasonable discretion, directly results in delays, or acts of any federal, state or
local governmental unit (other than the City) which directly result in delays, acts of the public
enemy or acts of terrorism and discovery of unknown hazardous materials or other concealed site
conditions or delays of contractors due to such discovery.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Citv. The City makes the following
representations and warranties:
(1) The City is a municipal corporation organized and existing under the Constitution
and laws of the State of Minnesota and has the power to enter into this Agreement and carry out
its obligations hereunder.
(2) The City has taken the actions necessary to establish the TIF District as a
"housing district" within the meaning of Minnesota Statutes, Section 469.174, Subdivision 11.
(3) The development contemplated by this Agreement is in conformance with the
development objectives set forth in the Development Program.
(4) The City makes no representation or warranty, either express or implied, as to the
Development Property or its condition, or that the Development Property shall be suitable for the
Developer's purposes or needs.
(5) No member of the City Council, or officer of the City, has either a direct or
indirect financial interest in this Agreement, nor will any Councilmember of the City, or officer
of the City, benefit financially from this Agreement within the meaning of Minnesota Statutes,
Sections 412.311 and 471.87.
Section 2.2. Representations and Warranties of the Developer. The Developer makes
the following representations and warranties:
(1) The Developer is a Minnesota limited liability company duly and validly
organized and existing in good standing under the laws of the State, and has power and authority
to enter into this Agreement and to perform its obligations hereunder and is not in violation of
any provision of the laws of the State.
(2) 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.
(3) 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.
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(4) The Developer understands that the City may subsidize or encourage the
development of other developments in the City, including properties that compete with the
Development Property and the Project, and that such subsidies may be more favorable than the
terms of this Agreement, and that the City has informed the Developer that development of the
Development Property will not be favored over the development of other properties.
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51939481SB ELI 85-49
ARTICLE III
UNDERTAKINGS BY DEVELOPER AND CITY
Section 3.1. Total Development Costs and Public Costs.
(1) The Developer's estimate of the Total Development Costs of the Project and
sources of revenue to pay such costs are set forth on Exhibit E attached hereto.
(2) Based on the Developer's representation that the Total Development Costs are
approximately $6,100,000, that the sources of revenue available to pay such costs, excluding the
tax increment assistance contemplated herein, is $5,500,000, and that the Developer is unable to
obtain additional private financing for the estimated Total Development Costs, the City has
agreed to provide tax increment financing subject to the terms and conditions as hereinafter set
forth.
(3) The parties agree that the Public Development Costs to be incurred by the
Developer are essential to the successful completion of the Project. The Developer anticipates
that the Public Development Costs which are identified on Exhibit C attached hereto will be at
least $463,297.
(4) As of January 2, 2020, the estimated market value of the Development Property,
as improved, is expected to be at least $3,310,000.
(5) The Developer has or will acquire fee title to the Development Property, and will
cause the Project to be constructed in accordance with the terms of this Agreement, the
Development Program, and all local, state and federal laws and regulations including, but not
limited to, environmental, zoning, energy conservation, building code and public health laws and
regulations.
(6) 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 for the
construction and operation of the Project.
(7) The Developer will construct the Project in accordance with the Geotechnical
Report. The Developer will engage a technical engineer to monitor and verify that the Project is
constructed in accordance with the Geotechnical Report.
(8) The Public Development Costs shall be paid by the Developer, and the City shall
reimburse the Developer for the Public Development Costs in the Reimbursement Amount solely
through the issuance of the TIF Note.
Section 3.2. TIF Note.
(1) The TIF Note will be originally issued to the Developer, as provided in Section
3.2(2), in a principal amount equal to the Reimbursement Amount and shall be dated as of its
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date of issuance. The principal of the TIF Note and interest thereon shall be payable on a pay-as-
you-go basis solely from the Pledged Tax Increments as provided below.
(2) The TIF Note shall be issued, in substantially the form attached hereto as Exhibit
D and interest will commence to accrue on the TIF Note only when: (A) the Developer shall
have submitted written proof and other documentation as may be reasonably satisfactory to the
City of the exact nature and amount of the Public Development Costs incurred by the Developer,
together with such other information or documentation as may be reasonably necessary and
satisfactory to the City to enable the City to substantiate the Developer's tax increment
expenditures per Exhibit C and/or to comply with its tax increment reporting obligations to the
Commissioner of Revenue, the Office of the State Auditor or other applicable official. The
documentation shall include specific invoices for the particular work from the contractor or other
provider and shall include paid invoices, copies of remittances and/or other suitable documentary
proofs of the Developer's payment thereof; (B) the City shall have received evidence that the
Declaration has been recorded against the Development Property; (C) the Developer shall have
obtained from the City a certificate of occupancy for all living units in the Project; (D) the
Developer shall have paid all of the City's Administrative Costs required to have been paid as of
such date in accordance with Section 3.4 hereof, and (E) the Developer is in material compliance
with each term or provision of this Agreement required to have been satisfied as of such date.
(3) Subject to the provisions thereof, the TIF Note shall bear simple, non -
compounding interest at the rate of 5.00% per annum. Interest shall be computed on the basis of
a 360 day year consisting of twelve 30 -day months. Principal and interest on the TIF Note will
be payable on each Payment Date; however, the sole source of funds required to be used for
payment of the City's obligations under this Section and correspondingly under the TIF Note
shall be the Pledged Tax Increments received in the 6 -month period preceding each Payment
Date. The principal amount of TIF Note shall be the Reimbursement Amount. On each Payment
Date the Pledged Tax Increment shall be credited against the accrued interest then due on the TIF
Note and then applied to reduce the principal. In the event the Pledged Tax Increments are not
sufficient to pay the accrued interest, the unpaid accrued interest shall be carried forward without
interest. All Tax Increments in excess of the Pledged Tax Increments necessary to pay the
principal and accrued interest on the TIF Note are not subject to this Agreement, and the City
retains full discretion as to any authorized application thereof. To the extent that the Pledged
Tax Increments are insufficient through the final Payment Date, to pay all amounts otherwise
due on the TIF Note, said unpaid amounts shall then cease to be any debt or obligation of the
City whatsoever. No interest will accrue during any period in which payments have been
suspended pursuant to Section 4.2.
(4) Any interest accruing on Pledged Tax Increments held by the City pending
payment to the Developer shall accrue to the benefit of the City.
(5) The TIF Note shall be a special and limited obligation of the City and not a
general obligation of the City, and only Pledged Tax Increments shall be used to pay the
principal of and interest on the TIF Note.
(6) The City's obligation to make payments on the TIF Note on any Payment Date
shall be conditioned upon the requirement that (A) there shall not at that time be an Event of
B:
5193944 JSB ELI 5549
Default that has occurred and is continuing under this Agreement that has not been cured during
the applicable cure period, and (B) this Agreement shall not have been terminated pursuant to
Section 4.2, and (C) all conditions set forth in Section 3.2(2) have been satisfied as of such date.
(7) The TIF Note shall be governed by and payable pursuant to the additional terms
thereof, as set forth in Exhibit D. In the event of any conflict between the terms of the TIF Note
and the terms of this Section 3.2, the terms of the TIF Note shall govern. The issuance of the
TIF Note is pursuant and subject to the terms of this Agreement.
Section 3.3. Income and Rent Restrictions. The Developer hereby represents,
covenants and agrees as follows:
(1) The Project is intended for occupancy, in part, by persons or families of low and
moderate income, as defined in chapter 462A, Title II of the National Housing Act of 1934, the
National Housing Act of 1959, the United States Housing Act of 1937, as amended, Title V of
the Housing Act of 1949, as amended, any other similar present or future federal, state or
municipal legislation, or the regulations promulgated under any of those acts; and
(2) No more than 20% of the square footage of the buildings of the Project financed
with the proceeds of the TIF Note will consist of commercial, retail or other non-residential uses;
and
(3) In accordance with the Declaration, commencing on the Completion Date and
continuing until the Termination Date, at least 20% of the housing units shall be occupied by or
available for rent to persons whose income does not exceed 50% of the area -wide median family
income for the standard metropolitan statistical area which includes Minneapolis/St. Paul,
Minnesota, as that figure is determined and announced from time to time by HUD, as adjusted
for family size ("Median Income"); and
(4) The Developer will provide the City an annual certification in the form attached
as Exhibit C to the Declaration (the "Compliance Certificate") evidencing compliance with the
requirements of paragraph (3) above, and income verifications from tenants used to meet such
requirements. The annual certification shall also include the vacancy rate for the preceding
calendar year and the rents for all units broken down by unit type, size and rent per square foot.
The annual certification shall be provided on or before January 31 of each year commencing
January 31, 2020, and shall cover the preceding calendar year.
(5) The provisions of this Section 3.3 shall be incorporated into the Declaration of in
substantially the form attached as Exhibit F and recorded against the Development Property
prior to the issuance of the TIF Note.
Section 3.4. Developer to Pay City's Fees and Expenses. The Developer will pay all of
the City's reasonable Administrative Costs (as defined below). Developer has deposited $10,000
with the City for the payment or reimbursement of the City's Administrative Costs (as defined
below). For the purposes of this Agreement, the term "Administrative Costs" means out of
pocket costs incurred by the City together with staff and consultant (including legal, financial
adviser, etc.) costs of the City, all attributable to or incurred in connection with the establishment
of the TIF District and the TIF Plan and review, negotiation and preparation of this Agreement
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(together with any other agreements entered into between the parties hereto contemporaneously
therewith) and review and approvals of other documents and agreements in connection with the
Project. In addition, certain engineering, environmental advisor, legal, land use, zoning,
subdivision and other costs related to the development of the Development Property are required
to be paid, or additional funds deposited in escrow, in accordance with the City's fee schedule.
If at any time the City determines that the amount deposited by Developer will be
insufficient to pay the City's fees and expenses listed above, the City may notify the Developer
in writing as to any additional amount required to be deposited. The Developer must deposit
such additional funds within 10 business days after receipt of the City's notice. The City will
notify the Developer at any point when it has received invoices for Administrative Costs equal,
in aggregate, to $10,000 and the Developer shall notify the City whether it is willing to incur
additional Administrative Costs. If the Developer fails to notify the City of its willingness to
continue to incur additional Administrative Costs within 10 days, the City will instruct all
Administrative Cost service providers to discontinue further work and submit final invoices
which the Developer shall reimburse the City for reasonable Administrative Costs within 10
business days after receipt of the City's notice even if the remaining Administrative Costs exceed
$10,000 as a result of work done prior to the notification to discontinue work.
Any funds deposited by Developer and not expended by the City for its Administrative
Costs will be returned to the Developer up the issuance of the Certificate of Completion. This
Section 3.4 shall survive termination of this Agreement and shall be binding on the Developer
regardless of the enforceability of any other provision of this Agreement.
Section 3.5. Compliance with Environmental Requirements.
(1) The Developer shall comply with all applicable local, state, and federal
environmental laws and regulations, and will obtain, and maintain compliance under, any and all
necessary environmental permits, licenses, approvals or reviews.
(2) The City makes no warranties or representations regarding, nor does it indemnify
the Developer with respect to, the existence or nonexistence on or in the vicinity of the
Development Property or anywhere within the TIF District of any toxic or hazardous substances
or wastes, pollutants or contaminants (including, without limitation, asbestos, urea
formaldehyde, the group of organic compounds known as polychlorinated biphenyls, petroleum
products including gasoline, fuel oil, crude oil and various constituents of such products, or any
hazardous substance as defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 961-9657, as amended) (collectively, the
"Hazardous Substances").
(3) The Developer agrees to take all necessary action to remove or remediate any
Hazardous Substances located on the Development Property to the extent required by and in
accordance with all applicable local, state and federal environmental laws and regulations.
Section 3.6. Construction Plans.
(1) Prior to the commencement of construction of the Project, the Developer will
deliver to the City the Construction Plans and a sworn construction cost statement certified by
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the Developer (the "Sworn Construction Cost Statement'). The Construction Plans for the
Project shall be consistent with the Site Plan and Design Drawings. The City shall promptly
review any Construction Plans upon submission and deliver to the Developer a written statement
approving the Construction Plans or a written statement rejecting the Construction Plans and
specifying the deficiencies in the Construction Plans. The City shall approve the Construction
Plans if. (i) the Construction Plans substantially conform to the terms and conditions of this
Agreement; (ii) the Construction Plans are consistent with the goals and objectives of the
Development Program; (iii) the Construction Plans comply with the Site Plan and Design
Drawings; and (iv) the Construction Plans do not violate any applicable federal, State or local
laws, ordinances, rules or regulations. If the Construction Plans are not approved by the City,
then the Developer shall make such changes as the City may reasonably require and resubmit the
Construction Plans to the City for_ approval, which will not be unreasonably withheld,
unreasonably conditioned or unreasonably delayed. The City acknowledges that upon execution
of this Agreement the Developer will have submitted Construction Plans sufficient to obtain a
grading permit for the Project.
(2) The approval of the Construction Plans, or any proposed amendment to the
Construction Plans, by the City does not constitute a representation or warranty by the City that
the Construction Plans or the Project comply with any applicable building code, health or safety
regulation, zoning regulation, environmental law or other law or regulation, or that the Project
will meet the qualifications for issuance of a certificate of occupancy, or that the Project will
meet the requirements of the Developer or any other users of the Project. Approval of the
Construction Plans, or any proposed amendment to the Construction Plans, by the City will not
constitute a waiver of an Event of Default. Nothing in this Agreement shall be construed to
relieve the Developer of its obligations to receive any required approval of the Construction
Plans from any City department.
Section 3.7. Commencement and Completion of Construction. Subject to the terms
and conditions of this Agreement and to Unavoidable Delays, the Developer will commence
construction of the Project by December 31, 2018 and shall substantially complete the Project
by December 31, 2019. Notwithstanding the foregoing, failure of the Developer to substantially
complete the Project shall not be an Event of Default unless the Developer fails to commence
construction of the Project by June 30, 2019 or the Developer fails to obtain a certificate of
occupancy for the Project by June 30, 2020. The Project will be constructed by the Developer on
the Development Property in conformity with the Construction Plans approved by the City.
Prior to commencing foundations or any construction of the Project beyond grading, the
Developer (i) shall provide a certificate from an engineer from Independent Testing
Technologies, Inc. certifying that the work described in the Geotechnical Report has been
constructed in accordance with the Geotechnical Report and (ii) shall have obtained a building
permit from the City in accordance with the City Code, ordinances, requirements and procedures.
No changes shall be made to the Construction Plans for the Project without the City's prior
written approval, unless the aggregate of such changes do not increase or decrease the Total
Development Costs by more than 10%. No changes which materially alter (a) the Project's site
plan, (b) exterior appearance, (c) construction quality, (d) the adequacy of the foundation support
as required by the Geotechnical Report, or (e) exterior materials included in the Preliminary
Plans, final Design Drawings and Construction Plans shall be made without the City's prior
written consent. The approval of the City will not be unreasonably withheld, conditioned or
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delayed. Prior to completion, upon the request of the City, and subject to applicable safety rules,
the Developer will provide the City reasonable access to the Development Property.
"Reasonable access" means at least one site inspection per week during regular business hours.
During construction, marketing and rentals of the Project, the Developer will deliver progress
reports to the City from time to time as reasonably requested by the City.
Section 3.8. Certificate of Completion. The Developer shall notify the City when
construction of the Project has been substantially completed. The City shall, within 20 days after
such notification, inspect the Project in order to determine whether the Project has been
constructed in substantial conformity with the approved Construction Plans. If the City
determines that the Project has not been constructed in substantial conformity with the approved
Construction Plans, the City shall deliver a written statement to the Developer indicating in
adequate detail the specific respects in which the Project has not been constructed in substantial
conformity with the approved Construction Plans and Developer shall have a reasonable period
of time to remedy such deficiencies. The City shall re -inspect the Project within a reasonable
period of time after receiving notice that such deficiencies have been remedied in order to
determine whether the Project has been constructed in substantial conformity with the approved
Construction Plans and this Agreement. Within a reasonable period of time after determining
that the Project has been constructed in substantial conformity with the approved Construction
Plans, the City will furnish to the Developer a Certificate of Completion in the form attached
hereto as Exhibit E certifying the completion of the Project. The Certificate of Completion
issued for the Project shall conclusively satisfy and terminate the agreements and covenants of
the Developer in this Agreement solely with respect to construction of the Project. The issuance
of a Certificate of Completion shall not be construed to relieve the Developer of any approval
required by any City department in connection with the construction, completion or occupancy
of the Project nor shall it relieve the Developer of any other obligations under this Agreement.
Section 3.9. Additional Responsibilities of the Developer.
(1) The Developer will construct, operate and maintain, or cause to be operated and
maintained, the Project in accordance with the terms of this Agreement, the Development
Program and all local, State, and federal laws and regulations including, but not limited to
zoning, building code, public health laws and regulations, except for approved variances
necessary to construct the Project contemplated in the Construction Plans approved by the City.
(2) The Developer will obtain, 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.
(3) The Developer will not construct any building or other structures on, over, or
within the boundary lines of any public utility easement unless such construction is provided for
in such easement or has been approved by the utility involved.
(4) The Developer, at its own expense, will replace any public facilities and public
utilities damaged during the construction of the Project, in accordance with the technical
specifications, standards and practices of the owner thereof.
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519394v8 JSB ELI 85-49
(5) The Developer will comply with all applicable local, state and federal
environmental laws and regulations, as they relate to the Project.
(6) The Developer will provide and maintain or cause to be maintained at all times
and, from time to time at the request of the City, furnish the City with proof of payment of
premiums on insurance of amounts and coverages normally held by owners of property similar to
the Project.
Section 3.10. Encumbrance of the Development Property. Until the Final Payment
Date, without the prior written consent of the City, neither the Developer nor any successor in
interest to the Developer will engage in any financing or any other transaction creating any
mortgage or other encumbrance or lien upon the Development Property, or portion thereof,
whether by express agreement or operation of law, or suffer any encumbrance or lien to be made
on or attach to the Development Property except for the purpose of obtaining funds only to the
extent necessary for financing or refinancing the acquisition and construction of the Project
(including, but not limited to, land and building acquisition, labor and materials, professional
fees, development fees, real estate taxes, reasonably required reserves, construction interest,
organization and other direct and indirect costs of development and financing, costs of
constructing the Project, and an allowance for contingencies). This provision shall not be
considered a waiver of the requirements of Section 5.3 with respect to any Transfer of the TIF
Note in connection with any such financing or refinancing nor shall anything contained in this
Section prohibit the Developer from making transfers in accordance with Section 5.3.
Section 3.11. Business Subsidy Act. The subsidy granted to the Developer pursuant to
this Agreement is assistance for housing and therefore the provisions of Minnesota Statutes,
Section 116J.993 to 116J.995 do not apply. No portion of the tax increment assistance shall be
used to construct any commercial space.
Section 3.12. Right to Collect Delinquent Taxes. The Developer acknowledges that the
City is providing substantial aid and assistance in furtherance of the Project through
reimbursement of Public Development Costs. To that end, the Developer agrees for itself, its
successors and assigns, that in addition to the obligation pursuant to statute to pay real estate
taxes, it is also obligated by reason of this Agreement, to pay before delinquency all real estate
taxes assessed against the Development Property and the Project. The Developer acknowledges
that this obligation creates a contractual right on behalf of the City through the Termination Date
to sue the Developer or its successors and assigns, to collect delinquent real estate taxes related
to the Development Property and any penalty or interest thereon and to pay over the same as a
tax payment to the county auditor. In any such suit in which the City is the prevailing party, the
City shall also be entitled to recover its costs, expenses and reasonable attorney fees.
Section 3.13. Review of Taxes. (a) The Developer agrees that prior to the Termination
Date it will not cause a reduction in the real property taxes paid in respect of the Development
Property through: (i) willful destruction of the Development Property or any part thereof; or
(ii) willful refusal to reconstruct damaged or destroyed property. The Developer also agrees that
it will not, prior to the Termination Date, apply for an exemption from or a deferral of property
tax on the Development Property pursuant to any law, or transfer or permit transfer of the
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519394v8 JSB EL185A9
Development Property to any entity whose ownership or operation of the property would result
in the Development Property being exempt from real property taxes under State law.
(b) The Developer shall notify the City within 10 days of filing any petition to seek
reduction in market value or property taxes on any portion of the Development Property under
any State law (referred to as a "Tax Appeal"). If as of any Payment Date, any Tax Appeal is
then pending, the City will continue to make payments on the TIF Note but only to the extent
that the Available Tax Increment relates to property taxes paid with respect to the market value
of the Development Property not being challenged as part of the Tax Appeal as determined by
the City in its sole discretion and the City will withhold the Available Tax Increment related to
property taxes paid with respect to the market value of the Development Property being
challenged as part of the Tax Appeal as determined by the City in its sole discretion. The City
will apply any withheld amount to the extent not reduced as a result of the Tax Appeal promptly
after the Tax Appeal is fully resolved and the amount of Available Tax hicrement, as applicable,
attributable to the disputed tax payments is finalized.
(c) From January 2, 2020 to the Termination Date, the Developer agrees it will not seek
reduction in the assessed market value of the Development Property for property tax purposes
below $3,310,000.
Section 3.14. Rental License. The Developer shall obtain a rental license from the City
for the Project prior to occupancy. The Developer shall renew and maintain its rental license for
the Project with the City each year in accordance with the City Code and City ordinances, and
City requirements and procedures.
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5193948 JSB EL185-49
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
assessed with respect to the Development Property.
(2) Subject to Unavoidable Delays, failure by the Developer to commence
construction of the Project by June 30, 2019, and to proceed with due diligence to substantially
complete the construction of the Project pursuant to the terms, conditions and limitations of this
Agreement and obtain a certificate of occupancy from the City by June 30, 2020.
(3) Failure of the Developer to observe or perform any other material covenant,
condition, obligation or agreement on its part to be observed or performed under the Declaration
or this Agreement, including, without limitation, compliance with the requirements set forth in
Section 3.3 hereof.
(4) If, prior to the Completion Date, the Developer shall
(a) file any petition in bankruptcy or for any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under the United
States Bankruptcy Act of 1978, as amended or under any similar federal or state law; or
(b) be adjudicated a bankrupt or insolvent; or if a petition or answer proposing
the adjudication of the Developer, as a bankrupt or its reorganization under any present or
future federal bankruptcy act or any similar federal or state law shall be filed in any court
and such petition or answer shall not be discharged or denied within 90 days after the
filing thereof; or a receiver, trustee or liquidator of the Developer, or of the Project, or
part thereof, shall be appointed in any proceeding brought against the Developer, and
shall not be discharged within 90 days after such appointment, or if the Developer, shall
consent to or acquiesce in such appointment.
(5) The Developer fails to maintain a rental license with the City for the Project in
accordance with Section 3.14 hereof.
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 30 days' written notice to the Developer, but only if the
Event of Default has not been cured within said 30 days; provided that if such Event of Default
cannot be reasonably cured within the 30 day period, and the Developer has provided assurances
reasonably satisfactory to the City that it is proceeding with due diligence to cure such default,
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519394v8 JSB EL185-49
such 30 day cure period shall be extended for a period deemed reasonably necessary by the City
to effect the cure, but in any event not to exceed 180 days:
(1) The City may suspend its performance under this Agreement and the TIF Note
until it receives assurances from the Developer, deemed reasonably adequate by the City, that the
Developer will cure its default and continue its performance under this Agreement. Interest on
the TIF Note shall not accrue during the period of any suspension of payment.
(2) The City may terminate this Agreement and/or cancel the TIF Note.
(3) The City may take any action, including legal or administrative action, in law or
equity, which may appear necessary or desirable to enforce performance and observance of any
obligation, agreement, or covenant of the Developer under this Agreement.
Section 4.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to
the City is intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or
omission to exercise any right or power accruing upon any default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient.
Section 4.4. No Implied Waiver. In the event any agreement contained in this
Agreement should be breached by any party and thereafter waived by any other party, such
waiver shall be limited to the particular breach so waived and shall not be deemed to waive any
other concurrent, previous or subsequent breach hereunder.
Section 4.5. Indemnification of Citv.
(1) The Developer releases from and covenants and agrees that the City, and its
governing bodies' members, officers, agents, including the independent contractors, consultants
and legal counsel, servants and employees thereof (for purposes of this Section, collectively the
"Indemnified Parties") shall not be liable for and agrees to indemnify and hold harmless the
Indemnified Parties against any damage to property or any injury to or death of any person
occurring at or about or resulting from any defect in the Project, or any other loss, cost expense,
or penalty, except to the extent caused by any willful misrepresentation or any willful or wanton
misconduct of the Indemnified Parties.
(2) Except for any willful misrepresentation or any willful or wanton misconduct of
the Indemnified Parties, the Developer agrees to protect and defend the Indemnified Parties, now
and forever, and farther agrees to hold the aforesaid harmless from any claim, demand, suit,
action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly
arising from the actions or inactions of the Developer (or if other persons acting on its behalf or
under its direction or control) under this Agreement, or the transactions contemplated hereby or
the acquisition, construction, installation, ownership, and operation of the Project; including,
without limitation, any pecuniary loss or penalty (including interest thereon at the rate of 5% per
annum from the date any loss is incurred or penalty is paid by the City) as a result of the Project
failing to cause the TIF District to qualify as a "housing district" under Section 469.174,
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5I939481SB ELI 85-49
Subdivision 11, of the Act, or to violate limitations as to the use of Tax Increments as set forth in
Section 469.176, subd. 4d.
(3) All covenants, stipulations, promises, agreements and obligations of the City
contained herein shall be deemed to be the covenants, stipulations, promises, agreements and
obligations of the City and not of any governing body member, officer, agent, servant or
employee of the City, as the case may be.
Section 4.6. Reimbursement of Attorneys' Fees. If the Developer shall default under
any of the provisions of this Agreement, and the City shall employ attorneys or incur other
reasonable expenses for the collection of payments due hereunder, or for the enforcement of
performance or observance of any obligation or agreement on the part of the Developer
contained in this Agreement, the Developer will within 30 days reimburse the City for the
reasonable fees of such attorneys and such other reasonable expenses so incurred.
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5I9394v8 JSB ELI 85-49
ARTICLE V
ADDITIONAL PROVISIONS
Section 5.1. Restrictions on Use. The Developer agrees for itself, its successors and
assigns and every successor in interest to the Development Property, or any part thereof, that the
Developer and such successors and assigns shall operate, or cause to be operated, the Project as
an affordable rental housing development in accordance with this Agreement and the Declaration
until the Termination Date.
Section 5.2. Reports. The Developer shall provide the City reports in a timely manner
with such information about the Project as the City may reasonably request for purposes of
satisfying any reporting requirements imposed by law on the City.
Section 5.3. Limitations on Transfer and Assignment.
(1) Except as provided in Section 5.3(5), the Developer will not sell, assign, convey,
lease or transfer in any other mode or manner (collectively, "Transfer") this Agreement, the TIF
Note, or the Development Property or the Project, or any interest therein, without the express
written approval of the City, which consent will not be unreasonably withheld, conditioned or
delayed. The City shall, within 20 days after such a written request for approval of a Transfer,
deliver a written statement to the Developer indicating whether the Transfer is approved or
specifying the additional conditions to be satisfied in accordance with Section 5.3(3). The
provisions of this Section 5.3 apply to all subsequent Transfers by authorized transferees;
(2) The TIF Note shall not be Transferred to any party who is not the Developer or
subsequent owner of the Development Property; provided that with the written consent of the
City and subject to Clauses (3)(c) through (f) and (4) below, the TIF Note may be transferred to
the holder of a mortgage or other security agreement or instrument securing the owner's
financing with respect to the Development Property.
(3) The City shall be entitled to require, as conditions to any approval of any Transfer
of this Agreement, the Development Property, the Project, or applicable portion thereof, or the
TIF Note in connection therewith, that:
(a) Any proposed transferee shall have the qualifications and financial
responsibility, as determined by the City, necessary and adequate to fulfill the obligations
undertaken in this Agreement by the Developer;
(b) 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 any of the remaining obligations of the Developer under this
Agreement and agreed to be subject to all the conditions and restrictions to which the
Developer is subject;
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5193948 JSB ELI 85-49
(c) There shall be submitted to the City for review all instruments and other
legal documents involved in effecting transfer, and if approved by City, its approval shall
be indicated to the Developer in writing;
(d) Any proposed transferee of the TIF Note shall (i) execute and deliver to the
City the Acknowledgment Regarding TIF Note in the form included in Exhibit B to the
TIF Note and (ii) surrender the TIF Note to the City either in exchange for a new fully
registered note or for transfer of the TIF Note on the registration records for the TIF Note
maintained by the City;
(e) The Developer and its transferees shall comply with such other conditions
as the City may reasonably require in order to achieve and safeguard the purposes of the
Act, the TIF Act and this Agreement; and
(f) In the absence of a specific written agreement by the City to the contrary,
no such transfer or approval by the City thereof shall be deemed to relieve the Developer
or any other party bound in any way by this Agreement or otherwise with respect to the
construction of the Project, from any of its obligations with respect thereto.
(4) The Developer agrees to pay all reasonable legal fees and expenses of the City,
including fees of the City Attorney's office and outside counsel retained by the City to review
the documents submitted to the City in connection with any Transfer.
(5) Nothing contained in this Section shall prohibit the Developer from (i) entering
into leases with tenants in the ordinary course of business, (ii) entering into easements or other
agreements necessary for the operation of the Project, (iii) admitting or removing members in
accordance with the Articles of Organization and the Operating Agreement of the Developer, as
applicable.
Section 5.4. Conflicts of Interest. No member of the governing body or other official
of the City shall have any financial interest, direct or indirect, in this Agreement, the
Development Property or the Project, or any contract, agreement or other transaction
contemplated to occur or be undertaken thereunder or with respect thereto, nor shall any such
member of the governing body or other official participate in any decision relating to this
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 5.5. Titles of Articles and Sections. Any titles of the several parts, articles and
sections of this Agreement are inserted for convenience of reference only and shall be
disregarded in construing or interpreting any of its provisions.
Section 5.6. 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
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519394v8 JSB ELI 85-49
(a) in the case of the Developer is addressed to or delivered personally to:
Jackson Hills Residential Suites, LLC
633 Upland Ave NW
Elk River, Minnesota 55330
Attn: Client Relations
(b) in the case of the City is addressed to or delivered personally to the City
at:
13065 Orono Parkway
Elk River, Minnesota 55330
Attn: City Administrator
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 5.7. No Additional Waiver Implied by One Waiver. If any agreement
contained in this Agreement should be breached by either parry and thereafter waived by the
other party, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent, previous or subsequent breach hereunder.
Section 5.8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 5.9. Law Governing. This Agreement will be governed and construed in
accordance with the laws of the State.
Section 5.10. Term: Termination. Except as provided in the Declaration, and unless this
Agreement is terminated earlier in accordance with its terms, this Agreement shall terminate on
the Final Payment Date.
Section 5.11. Provisions Surviving Rescission. Expiration or Termination. Sections 4.5
and 4.6 shall survive any rescission, termination or expiration of this Agreement with respect to
or arising out of any event, occurrence or circumstance existing prior to the date thereof.
Section 5.12. Superseding Effect. This Agreement reflects the entire agreement of the
parties with respect to the development of the Development Property, and supersedes in all
respects all prior agreements of the parties, whether written or otherwise, with respect to the
development of the Development Property.
Section 5.13. Relationship of Parties. Nothing in this Agreement is intended, or shall be
construed, to create a partnership or joint venture among or between the parties hereto, and the
rights and remedies of the parties hereto shall be strictly as set forth in this Agreement. 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.
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519394v8 1SB ELI 8549
Section 5.14. Venue. All matters, whether sounding in tort or in contract, relating to the
validity, construction, performance, or enforcement of this Agreement shall be controlled by and
determined in accordance with the laws of the State of Minnesota, and the Developer agrees that
all legal actions initiated by the Developer or City with respect to or arising from any provision
contained in this Agreement shall be initiated, filed and venued exclusively in the State of
Minnesota, Sherburne County, District Court and shall not be removed therefrom to any other
federal or state court.
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519394v81SB EL185-49
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.
CITY OF ELK RIVER, MINNESOTA
By
Its Mayor
By
Its City Clerk
This is a signature page to the TIF Development Assistance Agreement.
S-1
5193948 JSB ELI 8549
JACKSON HILLS RESIDENTIAL SUITES, LLC
Nte
1-4rjj��It
This is a signature page to the TIF Development Assistance Agreement.
S-2
519394v8 JSB ELI 8549
EXHIBIT A
DESCRIPTION OF TIF DISTRICT
Parcel ID #75-134-2303
PARCEL D -S. THAT PT OF THE FOLLOWING DESC PARCEL D LYING S OF WLY
EXTENSION OF CTRLINE OF 6TH ST (FORMERLY PLATTED AS 8TH ST) AS
DEDICATED IN THE PLAT OF BURRELL'S ADDITION. SUBJ TO EASEMENTS OF
RECORD.PARCEL D:THAT PT OF SW 1-4 OF NW 1-4 DESC AS COMM AT THE POINT
OF INTERSECTION OF CTRLINE OF JACKSON AVE (FORMERLY KNOW AS STATE
TRUNK HWY NO.201 & "OLD HWY NO.169" WITH S LINE OF SAID SW 1-4 OF NW 1-
4;THENCE W ALONG SAID S LINE FOR 200.00 FT;THENCE N PARA WITH SAID
CTRLINE FOR 285.70 FT TO POINT TO BE HEREAFTER KNOWN AS POINT "A" FOR
THE PURP OF THIS DESQTHENCE E WITH SAID S LINE OF SW 1-4 OF NW 1-4 FOR
150.00 FT TO INTERSECT WITH W LINE OF R -O -W OF SAID JACKSON AVE BEING A
LINE 50.00 FT, AS MEASURED AT RT ANGLES, W OF & PARA WITH SAID CTRLINE
SAID POINT OF INTERSECTION ALSO BEING THE ACTUAL POB OF THE LAND TO
BE HEREBY DESC; THENCE RETURN W PARA WITH SAID S LINE OF SW 1-4 OF NW
1-4 FOR 150.00FT TO SAID POINT "A"; THENCE N PARA WITH SAID CTRLINE FOR
14.30 FT MORE OR LESS TO INTERSECT THE N LINE OF S 300.00 FT, AS MEASURED
AT RT ANGLES, OF SAID SW 1-4 OF NW 1-4;THENCE W ALONG SAID N LINE OF S
300.00 FT FOR 200.01 FT MORE OR LESS TO INTERSECT A LINE 400.00 FT W OF, AS
MEASURED AT RT ANGLES TO, SAID CTRLINE OF JASKSON AVE; THENCE N PARA
WITH SAID CTRLINE FOR 1039.77 FT MORE OF LESS TO INTERSECT N LINE OF SAID
SW 1-4 OF NW 1-4;THENCE E ALONG SAID N LINE FOR 350.03 FT MORE OR LESS TO
INTERSECT SAID W LINE OF THE R -O -W OF JACKSON AVE;THENCE S ALONG SAID
W LINE OF THE R -O -W FOR 1056.71 FT MORE OR LESS TO POB.
The area encompassed by the TIF District shall also include all street or utility right-of-ways
located upon or adjacent to the property described above.
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5193948 JSB EL185-49
EXHIBIT B
LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
Parcel ID #75-134-2303
PARCEL D -S. THAT PT OF THE FOLLOWING DESC PARCEL D LYING S OF WLY
EXTENSION OF CTRLINE OF 6TH ST (FORMERLY PLATTED AS 8TH ST) AS
DEDICATED IN THE PLAT OF BURRELL'S ADDITION. SUBJ TO EASEMENTS OF
RECORDTARCEL D:THAT PT OF SW 1-4 OF NW 1-4 DESC AS COMM AT THE POINT
OF INTERSECTION OF CTRLINE OF JACKSON AVE (FORMERLY KNOW AS STATE
TRUNK HWY NO.201 & "OLD HWY NO. 169" WITH S LINE OF SAID SW 1-4 OF NW 1-
4;THENCE W ALONG SAID S LINE FOR 200.00 FT;THENCE N PARA WITH SAID
CTRLINE FOR 285.70 FT TO POINT TO BE HEREAFTER KNOWN AS POINT "A" FOR
THE PURP OF THIS DESC;THENCE E WITH SAID S LINE OF SW 1-4 OF NW 1-4 FOR
150.00 FT TO INTERSECT WITH W LINE OF R -O -W OF SAID JACKSON AVE BEING A
LINE 50.00 FT, AS MEASURED AT RT ANGLES, W OF & PARA WITH SAID CTRLINE
SAID POINT OF INTERSECTION ALSO BEING THE ACTUAL POB OF THE LAND TO
BE HEREBY DESC; THENCE RETURN W PARA WITH SAID S LINE OF SW 1-4 OF NW
1-4 FOR 150.00FT TO SAID POINT "A"; THENCE N PARA WITH SAID CTRLINE FOR
14.30 FT MORE OR LESS TO INTERSECT THE N LINE OF S 300.00 FT, AS MEASURED
AT RT ANGLES, OF SAID SW 1-4 OF NW 1-4;THENCE W ALONG SAID N LINE OF S
300.00 FT FOR 200.01 FT MORE OR LESS TO INTERSECT A LINE 400.00 FT W OF, AS
MEASURED AT RT ANGLES TO, SAID CTRLINE OF JASKSON AVE; THENCE N PARA
WITH SAID CTRLINE FOR 1039.77 FT MORE OF LESS TO INTERSECT N LINE OF SAID
SW 1-4 OF NW 1-4;THENCE E ALONG SAID N LINE FOR 350.03 FT MORE OR LESS TO
INTERSECT SAID W LINE OF THE R -O -W OF JACKSON AVE;THENCE S ALONG SAID
W LINE OF THE R -O -W FOR 1056.71 FT MORE OR LESS TO POB.
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5193948 JSB ELI 85-49
EXHIBIT C
PUBLIC DEVELOPMENT COSTS
Land acquisition
Site grading and improvements, per civil plans
Underground and above ground utilities
All Rental housing construction costs, including but not limited to labor and materials, eligible
for reimbursement under the TIF Act
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519394v8 JSB EL18549
No. R-1
EXHIBIT D
FORM OF TAXABLE TIF NOTE
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF S14ERBURNE
CITY OF ELK RIVER
TAXABLE TAX INCREMENT REVENUE
NOTE (JACKSON HILLS RESIDENTIAL SUITES, LLC PROJECT)
, 201
$463,297
The City of Elk River, Minnesota (the "City"), hereby acknowledges itself to be indebted
and, for value received, hereby promises to pay the amounts hereinafter described (the "Payment
Amounts") to Jackson Hills Residential Suites, LLC, a Minnesota limited liability company or its
registered assigns (the "Registered Owner"), the principal amount of Four Hundred Sixty -Three
Thousand Two Hundred Ninety Seven and 00/100 Dollars ($463,297), but only in the manner, at
the times, from the sources of revenue, and to the extent hereinafter provided.
This Note is issued pursuant to that certain TIF Development Assistance Agreement,
dated as of , 2018, as the same may be mutually amended from time to time (the
"Development Agreement'), by and between the City and Jackson Hills Residential Suites, LLC
(the "Developer"). Unless otherwise defined herein or unless context requires otherwise,
undefined terms used herein shall have the meanings set forth in the Development Agreement.
This Note shall bear simple, non -compounding interest at the rate of 5.0% per annum;
provided that no interest shall accrue on this Note during any period that an Event of Default has
occurred, and such Event of Default is continuing, under the Development Agreement and City
has exercised its remedy under the Development Agreement to suspend payment on the Note.
Interest shall be computed on the basis of a 360 -day year of twelve 30 -day months.
The amounts due under this Note shall be payable on August 1, 2021 and on each
February 1 and August 1 thereafter to and including the earlier of (i) the date on which the entire
principal and accrued interest on this Note has been paid in full, or (ii) February 1, 2036, or (iii)
any earlier date the Development Agreement or this Note is cancelled in accordance with the
terms of the Development Agreement or deemed paid in full, or (iv) the February 1 following
termination of TIF District in accordance with the TIF Act (the "Final Payment Date") or, if the
first should not be a Business Day (as defined in the Development Agreement) the next
succeeding Business Day (collectively, the "Payment Dates"). On each Payment Date, the City
shall pay by check or draft mailed to the person that was the Registered Owner of this Note at the
close of the last business day preceding such Payment Date an amount equal to 90% of the
Available Tax Increments (as hereinafter defined) received by the City during the six month
period preceding such Payment Date ("Pledged Tax Increments"). "Available Tax Increments"
are the Tax Increments (as hereinafter defined) received and permitted to be retained by the City,
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519394v8 JSB EL185-49
from the Tax Increment Financing (Housing) District No. 25 (the "TIF District") less the amount
of Tax Increments, if any, which the City must pay to the school district, the County and the
State pursuant to the TIF Act including, without limitation, Minnesota Statutes, Sections
469.177, subds. 9, 10 and 11; 469.176, subd. 4h; and 469.175, subd. la, as the same may be
amended from time to time. "Tax Increments" are the tax increments derived from the property
which is located within the TIF District which are paid to the City and which the City is entitled
to retain pursuant to the provisions of and as defined in Minnesota Statutes, Sections 469.174
through 469.1794, as the same may be amended or supplemented from time to time (the "TIF
Act") including, without limitation, Minnesota Statutes, Section 469.177, as amended. The
Payment Amounts due hereon shall be payable solely from the Pledged Tax Increments. All
payments made by the City under this Note shall first be applied to accrued interest and then to
principal. If Pledged Tax Increments are insufficient to pay any accrued interest due, such
unpaid interest shall be carried forward without interest.
This Note shall terminate and be of no further force and effect following the Final
Payment Date defined above, or any date upon which the City shall have terminated the
Development Agreement under Section 4.2 thereof or on the date that all principal and interest
payable hereunder shall have been or deemed paid in full, whichever occurs earliest. This Note
may be prepaid in whole or in part at any time without penalty.
The City makes no representation or covenant, express or implied, that the Pledged Tax
Increments will be sufficient to pay, in whole or in part, the amounts which are or may become
due and payable hereunder. There are risk factors in the amount of Tax Increments that may
actually be received by the City and some of those factors are listed on the attached Exhibit 1.
The Registered Owner acknowledges these risk factors and understands and agrees that
payments by the City under this Note are subject to these and other factors.
The City's payment obligations hereunder shall be further subject to the conditions that
(i) no Event of Default under Section 4.1 of the Development Agreement shall have occurred and
be continuing at the time payment is otherwise due hereunder, including without limitation
failure to deliver the Compliance Certificate in accordance with Section 3.3 of the Development
Agreement and the Declaration (as defined therein), and (ii) the Development Agreement shall
not have been terminated pursuant to Section 4.2, and (C) all conditions set forth in Section
3.2(2) of the Development Agreement have been satisfied as of such date. Any such suspended
and unpaid amounts shall become payable, without interest accruing thereon in the meantime, if
this Note has not been terminated in accordance with Section 4.2 of the Development Agreement
and said Event of Default shall thereafter have been cured in accordance with Section 4.2. If
pursuant to the occurrence of an Event of Default under the Development Agreement the City
elects, in accordance with the Development Agreement to cancel and rescind the Development
Agreement and/or this Note, the City shall have no further debt or obligation under this Note
whatsoever. Reference is hereby made to all of the provisions of the Development Agreement,
for a fuller statement of the rights and obligations of the City to pay the principal of this Note
and the interest thereon, and said provisions are hereby incorporated into this Note as though set
out in full herein.
THIS NOTE IS A SPECIAL, LIMITED REVENUE OBLIGATION AND NOT A
GENERAL OBLIGATION OF THE CITY AND IS PAYABLE BY THE CITY ONLY
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519394v81SB EL185-49
FROM THE SOURCES AND SUBJECT TO THE QUALIFICATIONS STATED OR
REFERENCED HEREIN. THIS NOTE IS NOT A GENERAL OBLIGATION OF THE
CITY, AND THE FULL FAITH AND CREDIT AND TAXING POWERS OF THE CITY
ARE NOT PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST
ON THIS NOTE AND NO PROPERTY OR OTHER ASSET OF THE CITY, SAVE AND
EXCEPT THE ABOVE -REFERENCED PLEDGED TAX INCREMENTS, IS OR SHALL
BE A SOURCE OF PAYMENT OF THE CITY'S OBLIGATIONS HEREUNDER.
The Registered Owner shall never have or be deemed to have the right to compel any
exercise of any taxing power of the City or of any other public body, and neither the City nor any
person executing or registering this Note shall be liable personally hereon by reason of the
issuance or registration thereof or otherwise.
This Note is issued by the City in aid of financing a project pursuant to and in full
conformity with the Constitution and laws of the State of Minnesota, including the TIF Act.
This Note may be assigned only as provided in Section 5.3 of the Development
Agreement and subject to delivering to the City the Acknowledgment and Receipt of Note in the
form included in Exhibit 2. Additionally, in order to assign the Note, the assignee shall
surrender the same to the City either in exchange for a new fully registered note or for transfer of
this Note on the registration records maintained by the City for the Note. Each permitted
assignee shall take this Note subject to the foregoing conditions and subject to all provisions
stated or referenced herein.
IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions, and things
required by the Constitution and laws of the State of Minnesota to be done, to have happened,
and to be performed precedent to and in the issuance of this Note have been done, have
happened, and have been performed in regular and due form, time, and manner as required by
law; and that this Note, together with all other indebtedness of the City outstanding on the date
hereof and on the date of its actual issuance and delivery, does not cause the indebtedness of the
City to exceed any constitutional or statutory limitation thereon.
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519394v8 JSB ELI 8549
IN WITNESS WHEREOF, the City of Elk River, Minnesota, by its City Council, has
caused this Note to be executed by the manual signatures of its Mayor and City Clerk and has
caused this Note to be issued on and dated as of the date first written above.
CITY OF ELK RIVER, MINNESOTA
Its Mayor
By
Its City Clerk
Signature Page for Tax Increment Revenue Note (Jackson Hills Residential Suites, LLC Project)
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51939481SB EL185-49
CERTIFICATION OF REGISTRATION
It is hereby certified that the foregoing Note, as originally issued on the date first written above,
was on said date registered in the name of Jackson Hills Residential Suites, LLC, a Minnesota
limited liability company, and that, at the request of the Registered Owner of this Note, the
undersigned has this day registered the Note in the name of such Registered Owner, as indicated
in the registration blank below, on the books kept by the undersigned for such purposes.
NAME AND ADDRESS OF DATE OF SIGNATURE OF
REGISTERED OWNER REGISTRATION CITY CLERK
Jackson Hills Residential Suites,
LLC
633 Upland Ave NW
Elk River, MN 55330
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51939481SB ELI SS -49
20
20
20
Exhibit 1
to Taxable TIF Note
RISK FACTORS
Risk factors on the amount of Tax Increments that may actually be received by the City
include but are not limited to the following:
1. Value of Proiect. If the contemplated Project (as defined in the Development
Agreement) constructed in the tax increment financing district is completed at a lesser level of
value than originally contemplated, they will generate fewer taxes and fewer tax increments than
originally contemplated.
2. Damage or Destruction. If the Project is damaged or destroyed after completion,
their value will be reduced, and taxes and tax increments will be reduced. Repair, restoration or
replacement of the Project may not occur, may occur after only a substantial time delay, or may
involve property with a lower value than the Project, all of which would reduce taxes and tax
increments.
3. Change in Use to Tax -Exempt. The Project could be acquired by a party that
devotes them to a use which causes the property to be exempt from real property taxation. Taxes
and tax increments would then cease.
4. Depreciation. The Project could decline in value due to changes in the market for
such property or due to the decline in the physical condition of the property. Lower market
valuation will lead to lower taxes and lower tax increments.
5. Non-payment of Taxes. If the property owner does not pay property taxes, either
in whole or in part, the lack of taxes received will cause a lack of tax increments. The Minnesota
system of collecting delinquent property taxes is a lengthy one that could result in substantial
delays in the receipt of taxes and tax increments, and there is no assurance that the full amount of
delinquent taxes would be collected. Amounts distributed to taxing jurisdictions upon a sale
following a tax forfeiture of the property are not tax increments.
6. Reductions in Taxes Levied. If property taxes are reduced due to decreased
municipal levies, taxes and tax increments will be reduced. Reasons for such reduction could
include lower local expenditures or changes in state aids to municipalities. For instance, in 2001
the Minnesota Legislature enacted an education funding reform that involved the state increasing
school aid in lieu of the local general education levy (a component of school district tax levies).
7. Reductions in Tax Capacity Rates. The taxable value of real property is
determined by multiplying the market value of the property by a tax capacity rate. Tax capacity
rates vary by certain categories of property; for example, the tax capacity rates for residential
homesteads are currently less than the tax capacity rates for commercial and industrial property.
In 2001 the Minnesota Legislature enacted property tax reform that lowered various tax capacity
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519394v8 JSB ELI 85A9
rates to "compress" the difference between the tax capacity rates applicable to residential
homestead properties and commercial and industrial properties.
8. Changes to Local Tax Rate. The local tax rate to be applied in the tax increment
financing district is the lower of the current local tax rate or the original local tax rate for the tax
increment financing district. In the event that the Current Local Tax Rate is higher than the
Original Local Tax Rate, then the "excess" or difference that comes about after applying the
lower Original Local Tax Rate instead of the Current Local Tax Rate is considered "excess" tax
increment and is distributed by Sherburne County to the other taxing jurisdictions and such
amount is not available to the City as tax increment.
9. Le 'sly ation. The Minnesota Legislature has frequently modified laws affecting
real property taxes, particularly as they relate to tax capacity rates and the overall level of taxes
as affected by state aid to municipalities.
10. Affordable Housing Declaration. The TIF District will cease to qualify as a
housing tax increment financing district and the TIF Note will terminate if the Project ceases to
be operated in accordance with the Declaration required by and defined in the Development
Agreement defined in the attached Note.
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5193948 1SB ELI85-49
Exhibit 2
to Taxable TIF Note
ACKNOWLEDGMENT AND RECEIPT FOR NOTE
The undersigned,
acknowledges that:
a ("Note Holder"), hereby certifies and
A. On the date hereof the Note Holder has [acquired from]/[made a loan (the
"Loan") [to/for the benefit] off Jackson Hills Residential Suites, LLC (the "Developer")
[secured in part by] the Taxable Tax Increment Revenue Note (Jackson Hills Residential Suites,
LLC Project), a pay-as-you-go tax increment revenue note in the original principal amount of
$463,297 dated 20_ of the City of Elk River, Minnesota (the "City"), a copy of
which is attached hereto ("Note" ).
B. The Note Holder has had the opportunity to ask questions of and receive from the
Developer all information and documents concerning the Note as it requested, and has had
access to any additional information the Note Holder thought necessary to verify the accuracy of
the information received. In determining to [acquire the Note]/[make the Loan], the Note Holder
has made its own determinations and has not relied on the City or information provided by the
City.
C. The Note Holder represents and warrants that:
1. The Note Holder is acquiring [the Note]/[an interest in the Note as
collateral for the Loan] for investment and for its own account, and without any view to
resale or other distribution.
2. The Note Holder has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of acquiring [the
Note]/[an interest in the Note as collateral for the Loan].
3. The Note Holder understands that the Note is a security which has not
been registered under the Securities Act of 1933, as amended, or any state securities law,
and must be held until its sale is registered or an exemption from registration becomes
available.
4. The Note Holder is aware of the limited payment source for the Note and
interest thereon and risks associated with the sufficiency of that limited payment source.
5. The Note Holder is [a bank or other financial institution] / [the owner of
the property from which the tax increments which are pledged to the Note are generated].
D. The Note Holder understands that the Note is payable solely from certain tax
increments derived from certain properties located in a tax increment financing district, if and as
received by the City. The Note Holder acknowledges that the City has made no representation or
covenant, express or implied, that the revenues pledged to pay the Note will be sufficient to pay,
D-8
51939481SB EL18549
in whole or in part, the principal and interest due on the Note. Any amounts which have not
been paid on the Note on or before the final maturity date of the Note shall no longer be payable,
as if the Note had ceased to be an obligation of the City. The Note Holder understands that the
Note will never represent or constitute a general obligation, debt or bonded indebtedness of the
City, the State of Minnesota, or any political subdivision thereof and that no right will exist to
have taxes levied by the City, the State of Minnesota or any political subdivision thereof for the
payment of principal and interest on the Note.
E. The Note Holder understands that the Note is payable solely from certain tax
increments, which are taxes received on improvements made to certain property (the "Project')
in a tax increment financing district from the increased taxable value of the property over its base
value at the time that the tax increment financing district was created, which base value is called
"original net tax capacity". There are risk factors in relying on tax increments to be received,
which include, but are not limited to, the following:
1. Value of Project. If the contemplated Project constructed in the tax
increment financing district are completed at a lesser level of value than originally
contemplated, they will generate fewer taxes and fewer tax increments than originally
contemplated.
2. Damage or Destruction. If the Project is damaged or destroyed after
completion, their value will be reduced, and taxes and tax increments will be reduced.
Repair, restoration or replacement of the Project may not occur, may occur after only a
substantial time delay, or may involve property with a lower value than the Project, all of
which would reduce taxes and tax increments.
3. Change in Use to Tax -Exempt. The Project could be acquired by a party
that devotes them to a use which causes the property to be exempt from real property
taxation. Taxes and tax increments would then cease.
4. Depreciation. The Project could decline in value due to changes in the
market for such property or due to the decline in the physical condition of the property.
Lower market valuation will lead to lower taxes and lower tax increments.
5. Non-payment of Taxes. If the property owner does not pay property taxes,
either in whole or in part, the lack of taxes received will cause a lack of tax increments.
The Minnesota system of collecting delinquent property taxes is a lengthy one that could
result in substantial delays in the receipt of taxes and tax increments, and there is no
assurance that the full amount of delinquent taxes would be collected. Amounts
distributed to taxing jurisdictions upon a sale following a tax forfeiture of the property are
not tax increments.
6. Reductions in Taxes Levied. If property taxes are reduced due to
decreased municipal levies, taxes and tax increments will be reduced. Reasons for such
reduction could include lower local expenditures or changes in state aids to
municipalities. For instance, in 2001 the Minnesota Legislature enacted an education
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5I9394v8 JSB ELI 85-49
funding reform that involved the state increasing school aid in lieu of the local general
education levy (a component of school district tax levies).
7. Reductions in Tax Capacity Rates. The taxable value of real property is
determined by multiplying the market value of the property by a tax capacity rate. Tax
capacity rates vary by certain categories of property; for example, the tax capacity rates
for residential homesteads are currently less than the tax capacity rates for commercial
and industrial property. In 2001 the Minnesota Legislature enacted property tax reform
that lowered various tax capacity rates to "compress" the difference between the tax
capacity rates applicable to residential homestead properties and commercial and
industrial properties.
8. Changes to Local Tax Rate. The local tax rate to be applied in the tax
increment financing district is the lower of the current local tax rate or the original local
tax rate for the tax increment financing district. In the event that the Current Local Tax
Rate is higher than the Original Local Tax Rate, then the "excess" or difference that
comes about after applying the lower Original Local Tax Rate instead of the Current
Local Tax Rate is considered "excess" tax increment and is distributed by Sherburne
County to the other taxing jurisdictions and such amount is not available to the City as
tax increment.
9. Legislation. The Minnesota Legislature has frequently modified laws
affecting real property taxes, particularly as they relate to tax capacity rates and the
overall level of taxes as affected by state aid to municipalities.
10. Affordable Housing Declaration. The TIF District will cease to qualify as
a housing tax increment financing district and the TIF Note will terminate if the Project
ceases to be operated in accordance with the Declaration required by and defined in the
Development Agreement defined below.
F. The Note Holder acknowledges that the Note was issued as part of a TIF
Development Assistance Agreement between the City and the Developer dated
_, 2018 ("Development Agreement"), and that the City has the right to suspend payments under
this Note and/or terminate the Note upon an Event of Default under the Development
Agreement.
G. The Note Holder acknowledges that the City makes no representation about the
tax treatment of, or tax consequences from, the Note Holder's acquisition of [the Note]/[an
interest in the Note as collateral for the Loan].
WITNESS our hand this day of 120.
Note Holder:
f
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1
e.,, Its
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519394v81SB EL185-49
EXHIBIT E
CERTIFICATE OF COMPLETION OF PROJECT
,20_
WHEREAS, the CITY OF ELK RIVER, MINNESOTA, a municipal corporation under
the Constitution and laws of the State of Minnesota (the "City"), and JACKSON HILLS
RESIDENTIAL SUITES, LLC, a Minnesota limited liability company (the "Developer") have
entered into a TIF Development Assistance Agreement (the "TIF Development Agreement'),
dated 2018; and
WHEREAS, the TIF Development Agreement requires the Developer to construct a
Project (as that term is defined in the TIF Development Agreement);
WHEREAS, the Developer has constructed the Project in a manner deemed sufficient by
the City to permit the execution of this certification in accordance with Section 3.8 of the TIF
Development Agreement;
NOW, THEREFORE, this is to certify that the Developer has constructed the Project in
accordance with the TIF Development Agreement. The remaining covenants of the Developer
under the TIF Development Agreement are not intended to run with title to the Development
Property or bind successors in title to the Development Property.
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51939401SB EL185-49
The City has, as of the date and year first above written, set its hand hereon.
CITY OF ELK RIVER, MINNESOTA
By
Its
STATE OF MINNESOTA )
) ss
COUNTY OF SHERBURNE)
City Clerk
The foregoing instrument was acknowledged before me this day of
20 , by , the City Clerk of the City of Elk River, Minnesota, a
municipal corporation and politic subdivision organized and existing under the Constitution and
laws of the State of Minnesota, on behalf of said City.
Notary Public
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5193948 JSB EL18549
EXHIBIT F
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION OF RESTRICTIVE COVENANTS, dated
2018 (the "Declaration"), by JACKSON HILLS RESIDENTIAL SUITES, LLC, a Minnesota
limited liability company (the "Developer"), is given for the benefit of the CITY OF ELK RIVER,
MINNESOTA, a municipal corporation and political subdivision organized and existing under
the Constitution and laws of the State of Minnesota (the "City").
RECITALS
WHEREAS, the City and the Developer entered into that certain TIF Development
Assistance Agreement, dated , 2018, (the "Contract"); and
WHEREAS, pursuant to the Contract, the Developer is obligated to cause construction of 40
housing units of multifamily rental housing (the "Project") on the property described in EXHIBIT A
hereto (the "Property"), and to cause compliance with certain affordability covenants described in
Section 3.3 of the Contract; and
WHEREAS, Section 3.3 of the Contract requires that the Developer cause to be executed an
instrument in recordable form substantially reflecting the covenants set forth in Section 3.3 of the
Contract; and
WHEREAS, the Developer intends, declares, and covenants that the restrictive covenants
set forth herein will be and are covenants running with the Property for the term described herein
and binding upon all subsequent owners of the Property for the term described herein, and are not
merely personal covenants of the Developer; and
WHEREAS, capitalized terms in this Declaration have the meaning provided in the Contract
unless otherwise defined herein.
NOW, THEREFORE, in consideration of the promises and covenants hereinafter set forth,
and of other valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Developer agrees as follows:
1. Tenn of Restrictions
(a) Occupancy and Rental Restrictions. The term of the Occupancy Restrictions set
forth in Section 3 of this Declaration will commence on the date a certificate of occupancy is
received from the City for all rental units on the Property and continue through the Termination
Date defined below (the "Qualified Project Period").
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519394v8 JSB EL185A9
(b) Termination of Declaration. This Declaration will terminate on the earlier of
December 31, 2046 or the date on which the TIF District is terminated in accordance with the TIF
Act (the "Termination Date").
(c) Removal from Real Estate Records. After the Termination Date of this Declaration,
the City will, upon request by the Developer or its assigns, file any document appropriate to remove
Us Declaration from the real estate records of Sherburne County, Minnesota.
Project Restrictions.
(a) the Developer represents, warrants, and covenants that:
(i) All leases of units to Qualifying Tenants (as defined in Section 3(a)(i)
hereof) will contain clauses, among others, wherein each individual lessee:
(1) Certifies the accuracy of the statements made in its application and
Eligibility Certification (as defined in Section 3(a)(ii) hereof); and
(2) Agrees that the family income at the time the lease is executed will
be deemed substantial and material obligation of the lessee's tenancy; that the lessee
will comply promptly with all requests for income and other information relevant to
determining low or moderate income status from the Developer or the City, and that
the lessee's failure or refusal to comply with a request for information with respect
thereto will be deemed a violation of a substantial obligation of the lessee's tenancy.
(ii) the Developer will permit any duly authorized representative of the City to
inspect the books and records of the Developer pertaining to the income of Qualifying
Tenants residing in the Project.
3. Occupancy Restrictions. The Developer represents, warrants, and covenants that:
(a) Qualifying Tenants. Throughout the Qualified Project Period, at least 20%
(approximately 8) of the Rental Housing Units will be occupied (or treated as occupied as provided
herein) or held vacant and available for occupancy by Qualifying Tenants. Qualifying Tenants
means those persons and families who are determined from time to time by the Developer to have
combined adjusted income that does not exceed 50% of the Minneapolis -St. Paul metropolitan
statistical area (the "Metro Area") median income for the applicable calendar year. For purposes of
this definition, the occupants of a residential unit will not be deemed to be Qualifying Tenants if all
the occupants of such residential unit at any time are "students," as defined in Section 152(f)(2) of
the Internal Revenue Code of 1986, as amended (the "Code"), not entitled to an exemption under
the Code. The determination of whether an individual or family is of low or moderate income will
be made at the time the tenancy commences and on an ongoing basis thereafter, determined at least
annually. If during their tenancy a Qualifying Tenant's income exceeds 140% of the maximum
income qualifying as low or moderate income for a family of its size, the next available unit
(determined in accordance with the Code and applicable regulations) (the "Next Available Unit
Rule") must be leased to a Qualifying Tenant or held vacant and available for occupancy by a
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519394v8 1SB ELI 85-49
Qualifying Tenant. If the Next Available Unit Rule is violated, the Unit will not continue to be
treated as a Qualifying Unit.
(b) Certification of Tenant Eligibility. As a condition to initial and continuing
occupancy, each person who is intended to be a Qualifying Tenant will be required annually to sign
and deliver to the Developer a Certification of Tenant Eligibility substantially in the form attached
as EXHIBIT B hereto, or in any other form as may be approved by the City (the "Eligibility
Certification"), in which the prospective Qualifying Tenant certifies as to qualifying as low or
moderate income. In addition, the person will be required to provide whatever other information,
documents, or certifications are deemed necessary by the City to substantiate the Eligibility
Certification, on an ongoing annual basis, and to verify that the tenant continues to be a Qualifying
Tenant within the meaning of Section 3(a) hereof. Eligibility Certifications will be maintained on
file by the Developer with respect to each Qualifying Tenant who resides in a Project unit or resided
therein during the immediately preceding calendar year.
(c) Lease. The form of lease to be utilized by the Developer in renting any units in the
Project to any person who is intended to be a Qualifying Tenant will provide for termination of the
lease and consent by the person to immediate eviction for failure to qualify as a Qualifying Tenant
as a result of any material misrepresentation made by the person with respect to the Eligibility
Certification.
(d) Annual Report. The Developer covenants and agrees that during the term of this
Declaration, it will prepare and submit to the City on or before January 31 of each year, a certificate
substantially in the form of EXHIBIT C hereto, executed by the Developer, (a) identifying the
tenancies and the dates of occupancy (or vacancy) for all Qualifying Tenants in the Project,
including the percentage of the dwelling units of the Project which were occupied by Qualifying
Tenants (or held vacant and available for occupancy by Qualifying Tenants) at all times during the
year preceding the date of the certificate; (b) describing all transfers or other changes in ownership
of the Project or any interest therein; and (c) stating, that to the best knowledge of the person
executing the certificate after due inquiry, all the units were rented or available for rental on a
continuous basis during the year to members of the general public and that the Developer was not
otherwise in default under this Declaration during the year.
(e) Notice of Non -Com In iance. The Developer will immediately notify the City if at
any time during the term of this Declaration fewer than 20% (approximately 8) of the dwelling units
in the Project are occupied or available for occupancy as required by the terms of this Declaration.
4. Transfer Restrictions. The Developer covenants and agrees that the Developer will
cause or require as a condition precedent to any conveyance, transfer, assignment, or any other
disposition of the Project prior to the termination of the Occupancy Restrictions provided herein (the
"Transfer") that the transferee of the Project pursuant to the Transfer assume in writing, in a form
acceptable to the City, all duties and obligations of the Developer under this Declaration, including
this Section 4, in the event of a subsequent Transfer by the transferee prior to expiration of the
Rental Restrictions and Occupancy Restrictions provided herein (the "Assumption Agreement").
The Developer will deliver the Assumption Agreement to the City prior to the Transfer.
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5193948 JSB ELI 85-49
5. Enforcement.
(a) The Developer will permit, during normal business hours and upon reasonable
notice, any duly authorized representative of the City to inspect any books and records of the
Developer regarding the Project with respect to the incomes of Qualifying Tenants.
(b) The Developer will submit any other information, documents or certifications
requested by the City which the City deems reasonably necessary to substantial the Developer's
continuing compliance with the provisions specified in this Declaration.
(c) The Developer acknowledges that the primary purpose for requiring compliance by
the Developer with the restrictions provided in this Declaration is to ensure compliance of the
property with the housing affordability covenants set forth in Section 3.3 of the Contract, and by
reason thereof, the Developer, in consideration for assistance provided by the City under the
Contract that makes possible the construction of the Project (as defined in the Contract) on the
Property, hereby agrees and consents that the City will be entitled, for any breach of the provisions
of this Declaration, and in addition to all other remedies provided by law or in equity, to enforce
specific performance by the Developer of its obligations under this Declaration in a state court of
competent jurisdiction. The Developer hereby further specifically acknowledges that the City
cannot be adequately compensated by monetary damages in the event of any default hereunder.
(d) The Developer understands and acknowledges that, in addition to any remedy set
forth herein for failure to comply with the restrictions set forth in this Declaration, the City may
exercise any remedy available to it under Article IV of the Contract.
6. Indemnification. The Developer hereby indemnifies, and agrees to defend and hold
harmless, the City from and against all liabilities, losses, damages, costs, expenses (including
attorneys' fees and expenses), causes of action, suits, allegations, claims, demands, and judgments
of any nature arising from the consequences of a legal or administrative proceeding or action
brought against them, or any of them, on account of any failure by the Developer to comply with the
terms of this Declaration, or on account of any representation or warranty of the Developer
contained herein being untrue.
7. Agent of the Citv. The City will have the right to appoint an agent to cavy out any
of its duties and obligations hereunder, and will inform the Developer of any agency appointment
by written notice.
8. Severabilitv. The invalidity of any clause, part or provision of this Declaration will
not affect the validity of the remaining portions thereof.
9. Notices. All notices to be given pursuant to this Declaration must be in writing and
will be deemed given when mailed by certified or registered mail, return receipt requested, to the
parties hereto at the addresses set forth below, or to any other place as a party may from time to time
designate in writing. The Developer and the City may, by notice given hereunder, designate any
further or different addresses to which subsequent notices, certificates, or other communications are
sent. The initial addresses for notices and other communications are as follows:
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519394v8 JSB ELI 8549
To the City: City of Elk River, Minnesota
13065 Orono Parkway
Elk River, Minnesota 55330
Attn: City Administrator
To the Developer: Jackson Hills Residential Suites, LLC
633 Upland Ave NW
Elk River, Minnesota 55330
Attn: Client Relations
10. Governing Law. This Declaration is governed by the laws of the State of Minnesota
and, where applicable, the laws of the United States of America.
11. Attorneys' Fees. In case any action at law or in equity, including an action for
declaratory relief, is brought against the Developer to enforce the provisions of this Declaration, the
Developer agrees to pay the reasonable attorneys' fees and other reasonable expenses paid or
incurred by the City in connection with the action.
12. Declaration Binding. This Declaration and the covenants contained herein will run
with the real property comprising the Project and will bind the Developer and its successors and
assigns and all subsequent owners of the Project or any interest therein, and the benefits will inure to
the City and its successors and assigns until the Termination Date of this Declaration as provided in
Section 1(b) hereof.
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5193948 JSB EL185-49
IN WITNESS WHEREOF, the Developer has caused this Declaration of Restrictive
Covenants to be signed by its respective duly authorized representatives, as of the day and year first
written above.
JACKSON HILLS RESIDENTIAL SUITES, LLC
STATE OF MINNESOTA )
SS.
COUNTY OF
The foregoing instrument was acknowledged before me this iu(,{D , z/)tn 2018 by
a6�[k. 135, the C�%'Qk,�1(A�l/llp_1 f of the general partner of
Jackson Hills esidential Suites -LLC, a Minnesota limited liability company, on behalf of the
company.
a ALYSSA MARIE JOHNSON
NOTARY PUBLIC
- MINNESOTA ary Ub11C
My Commission Ex*s 01/31 022
THIS INSTRUMENT WAS DRAFTED BY:
Kennedy & Graven, Chartered (JSB)
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
(612)337-9300
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5193948 JSB EL185-49
This Declaration is acknowledged and consented to by:
CITY OF ELK RIVER, MINNESOTA
By
Its Mayor
By
Its City Clerk
STATE OF MINNESOTA )
) SS.
COUNTY OF SHERBURNE )
The foregoing instrument was acknowledged before me this '2018, by
, the Mayor of the City of Elk River, Minnesota, a municipal
corporation and political subdivision organized and existing under the Constitution and laws of
the State of Minnesota, on behalf of the City.
STATE OF MINNESOTA
SS.
COUNTY OF SHERBURNE)
Notary Public
The foregoing instrument was acknowledged before me this , 2018, by
the City Clerk of the City of Elk River, Minnesota, a municipal
corporation and political subdivision organized and existing under the Constitution and laws of
the State of Minnesota, on behalf of the City.
Notary Public
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519394v8 JSB EL185-49
EXHIBIT A TO DECLARATION OF RESTRICTIVE COVENANTS
Legal Description
PARCEL ID #75-134-2303
PARCEL D -S. THAT PT OF THE FOLLOWING DESC PARCEL D LYING S OF WLY
EXTENSION OF CTRLINE OF 6TH ST (FORMERLY PLATTED AS 8TH ST) AS
DEDICATED IN THE PLAT OF BURRELL'S ADDITION. SUBJ TO EASEMENTS OF
RECORDYARCEL D:THAT PT OF SW 1-4 OF NW 1-4 DESC AS COMM AT THE POINT
OF INTERSECTION OF CTRLINE OF JACKSON AVE (FORMERLY KNOW AS STATE
TRUNK HWY NO.201 & "OLD HWY N0.169" WITH S LINE OF SAID SW 1-4 OF NW 1-
4;THENCE W ALONG SAID S LINE FOR 200.00 FT;THENCE N PARA WITH SAID
CTRLINE FOR 285.70 FT TO POINT TO BE HEREAFTER KNOWN AS POINT "A" FOR
THE PURP OF THIS DESC;THENCE E WITH SAID S LINE OF SW 1-4 OF NW 1-4 FOR
150.00 FT TO INTERSECT WITH W LINE OF R -O -W OF SAID JACKSON AVE BEING A
LINE 50.00 FT, AS MEASURED AT RT ANGLES, W OF & PARA WITH SAID CTRLINE
SAID POINT OF INTERSECTION ALSO BEING THE ACTUAL POB OF THE LAND TO
BE HEREBY DESC; THENCE RETURN W PARA WITH SAID S LINE OF SW 1-4 OF NW
1-4 FOR 150.00FT TO SAID POINT "A"; THENCE N PARA WITH SAID CTRLINE FOR
14.30 FT MORE OR LESS TO INTERSECT THE N LINE OF S 300.00 FT, AS MEASURED
AT RT ANGLES, OF SAID SW 1-4 OF NW 1-4;THENCE W ALONG SAID N LINE OF S
300.00 FT FOR 200.01 FT MORE OR LESS TO INTERSECT A LINE 400.00 FT W OF, AS
MEASURED AT RT ANGLES TO, SAID CTRLINE OF JASKSON AVE; THENCE N PARA
WITH SAID CTRLINE FOR 1039.77 FT MORE OF LESS TO INTERSECT N LINE OF SAID
SW 1-4 OF NW 1-4;THENCE E ALONG SAID N LINE FOR 350.03 FT MORE OR LESS TO
INTERSECT SAID W LINE OF THE R -O -W OF JACKSON AVE;THENCE S ALONG SAID
W LINE OF THE R -O -W FOR 1056.71 FT MORE OR LESS TO POB.
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519394v8 1SB ELI 8549
Project:
���
EXHIBIT B TO DECLARATION OF RESTRICTIVE COVENANTS
Certification of Tenant Eligibility
(INCOME COMPUTATION AND CERTIFICATION)
[Address]
Unit Type: 1 BR 2 BR 3 BR
1. I/We, the undersigned, being first duly sworn, state that Uwe have read and
answered fully, frankly and personally each of the following questions for all persons (including
minors) who are to occupy the unit in the above apartment development for which application is
made, all of whom are listed below:
Name of Relationship
Members of the To Head of Place of
Household Household Age Employment
Income Computation
2. The anticipated income of all the above persons during the 12 -month period
beginning this date,
(a) including all wages and salaries, overtime pay, commissions, fees, tips and
bonuses before payroll deductions; net income from the operation of a business or
profession or from the rental of real or personal property (without deducting expenditures
for business expansion or amortization of capital indebtedness); interest and dividends; the
full amount of periodic payments received from social security, annuities, insurance
policies, retirement funds, pensions, disability or death benefits and other similar types of
periodic receipts; payments in lieu of earnings, such as unemployment and disability
compensation, worker's compensation and severance pay; the maximum amount of public
assistance available to the above persons; periodic and determinable allowances, such as
alimony and child support payments and regular contributions and gifts received from
persons not residing in the dwelling; and all regular pay, special pay and allowances of a
member of the Armed Forces (whether or not living in the dwelling) who is the head of the
household or spouse; but
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5193940 1513 ELI 85-49
(b) excluding casual, sporadic or irregular gifts; amounts which are specifically
for or in reimbursement of medical expenses; lump sum additions to family assets, such as
inheritances, insurance payments (including payments under health and accident insurance
and workmen's compensation), capital gains and settlement for personal or property losses;
amounts of educational scholarships paid directly to the student or the educational
institution, and amounts paid by the government to a veteran for use in meeting the costs of
tuition, fees, books and equipment, but in either case only to the extent used for these types
of purposes; special pay to a serviceman head of a family who is away from home and
exposed to hostile fire; relocation payments under Title II of the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970; foster child care payments;
the value of coupon allotments for the purchase of food pursuant to the Food Stamp Act of
1964 which is in excess of the amount actually charged for the allotments; and payments
received pursuant to participation in ACTION volunteer programs, is as follows:
3. If any of the persons described above (or whose income or contributions was
included in item 2) has any savings, bonds, equity in real property or other form of capital
investment, provide:
(a) the total value of all such assets owned by all such persons: $ ;
(b) the amount of income expected to be derived from such assets in the 12
month period commencing this date: $ ; and
(c) the amount of such income which is included in income listed in item 2:
4. (a) Will all of the persons listed in item 1 above be or have they been full-time
students during five calendar months of this calendar year at an educational institution (other
than a correspondence school) with regular faculty and students?
Yes No
(b) Is any such person (other than nonresident aliens) married and eligible to file
a joint federal income tax return?
Yes No
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519394v8 1SB ELI 8549
THE UNDERSIGNED HEREBY CERTIFY THAT THE INFORMATION SET FORTH
ABOVE IS TRUE AND CORRECT. THE UNDERSIGNED ACKNOWLEDGE THAT THE
LEASE FOR THE UNIT TO BE OCCUPIED BY THE UNDERSIGNED WILL BE
CANCELLED UPON 10 DAYS WRITTEN NOTICE IF ANY OF THE INFORMATION
ABOVE IS NOT TRUE AND CORRECT.
Head of Household
Spouse
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519394v81SB EL185A9
FOR COMPLETION BY OWNER
(OR ITS MANAGER) ONLY
1. Calculation of Eligible Tenant Income:
(a) Enter amount entered for entire household in 2 above: $
(b) If the amount entered in 3(a) above is greater than $5,000, enter the greater
of (i) the amount entered in 3(b) less the amount entered in 3(c) or (ii) 10% of the amount
entered in 3(a): $
(c) TOTAL ELIGIBLE INCOME (Line 1(a) plus Line 1(b)): $
2. The amount entered in 1(c) is less than or equal to 50% of median income for the
area in which the Project is located, as defined in the Declaration. 50% is necessary for status as a
"Qualifying Tenant" under Section 3(a) of the Declaration.
3. Number of apartment unit assigned:
4. This apartment unit was —was not last occupied for a period of at least
31 consecutive days by persons whose aggregate anticipated annual income as certified in the above
manner upon their initial occupancy of the apartment unit was less than or equal to 50% of Median
Income in the area.
5. Check as applicable: Applicant qualifies as a Qualifying Tenant (tenants of
at least _ units must meet), or_ Applicant otherwise qualifies to rent a unit.
THE UNDERSIGNED HEREBY CERTIFIES THAT HE/SHE HAS NO KNOWLEDGE OF
ANY FACTS WHICH WOULD CAUSE HIM/HER TO BELIEVE THAT ANY OF THE
INFORMATION PROVIDED BY THE TENANT MAY BE UNTRUE OR INCORRECT.
JACKSON HILLS RESIDENTIAL SUITES,
LLC
By:
Its: �lf�(� /YJ.pti/s�� �p
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5193948 JSB EL185-49
EXHIBIT C TO DECLARATION OF RESTRICTIVE COVENANTS
Certificate of
Continuing Program Compliance
Date:
The following information with respect to the Project located at , Elk
River, Minnesota (the "Project"), is being provided by Jackson Hills Residential Suites, LLC (the
"Owner") to the City of Elk River, Minnesota (the "City"), pursuant to that certain Declaration of
Restrictive Covenants, dated 2018 (the "Declaration"), with respect to the
Project:
(A) The total number of residential units which are available for occupancy is 60.
The total number of these units occupied is
(B) The following residential units (identified by unit number) are currently
occupied by "Qualifying Tenants," as the term is defined in the Declaration (for a total of
units):
1 BR Units:
2 BR Units:
3 BR Units:
(C) The following residential units which are included in (B) above, have been
re -designated as units for Qualifying Tenants since 20___, the date on
which the last "Certificate of Continuing Program Compliance" was filed with the Authority
by the Owner:
Unit Previous Designation Replacing
Number of Unit (if any) Unit Number
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519394v8 JSB ELI 85-49
(D) The following residential units are considered to be occupied by Qualifying
Tenants based on the information set forth below:
(E) The Owner has obtained a "Certification of Tenant Eligibility," in the form
provided as EXHIBIT B to the Declaration, from each Tenant named in (D) above, and each
such Certificate is being maintained by the Owner in its records with respect to the Project.
Attached hereto is the most recent "Certification of Tenant Eligibility" for each Tenant
named in (D) above who signed such a Certification since , 20_, the date
on which the last "Certificate of Continuing Program Compliance" was filed with the
Authority by the Owner.
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519394v8 1SB EL185-49
Unit
Number
Name of Tenant
Number of
Persons
Residing in
the Unit
Number of
Bedrooms
Total Adjusted
Gross Income
Date of Initial
Occupancy
Rent
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
(E) The Owner has obtained a "Certification of Tenant Eligibility," in the form
provided as EXHIBIT B to the Declaration, from each Tenant named in (D) above, and each
such Certificate is being maintained by the Owner in its records with respect to the Project.
Attached hereto is the most recent "Certification of Tenant Eligibility" for each Tenant
named in (D) above who signed such a Certification since , 20_, the date
on which the last "Certificate of Continuing Program Compliance" was filed with the
Authority by the Owner.
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519394v8 1SB EL185-49
(F) In renting the residential units in the Project, the Owner has not given
preference to any particular group or class of persons (except for persons who qualify as
Qualifying Tenants); and none of the units listed in (D) above have been rented for
occupancy entirely by students, no one of which is entitled to file a joint return for federal
income tax purposes. All of the residential units in the Project have been rented pursuant to
a written lease, and the term of each lease is at least twelve (12) months.
(G) The information provided in this "Certificate of Continuing Program
Compliance" is accurate and complete, and no matters have come to the attention of the
Owner which would indicate that any of the information provided herein, or in any
"Certification of Tenant Eligibility" obtained from the Tenants named herein, is inaccurate
or incomplete in any respect.
(H) The Project is in continuing compliance with the Declaration.
(1) The Owner certifies that as of the date hereof % of the residential
dwelling units in the Project are occupied or held open for occupancy by Qualifying
Tenants, as defined and provided in the Declaration.
(J) The rental levels for each Qualifying Tenant comply with the maximum
permitted under the Declaration.
IN WITNESS WHEREOF, I have hereunto affixed my signature, on behalf of the Owner,
on .2018.
JACKSON HILLS RESIDENTIAL SUITES, LLC
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51939481SB EL18549
EXHIBIT G
GEOTECHNICAL REPORT
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519394v8 JSB ELI 85-49