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Home My WebLink AboutCCP 06-15-1992 ~, . 1\RDEN JDLIB CITY ~ 'lQUtSEI3SICIl MEETIlG <XllltaL amMBERS l!l::ImY, JUNE 15, 1992, 4:00 P.M. J CALL 'IO ORDER/oon. CALL. 4:00 P.M. I AGENDA AOOPl'ION. I DIsaJSSICtil OF CITY AI:MINISTRATOR POSITION - JIM BRIMEllER 4:00 :EM (ATrACHMENI'S) ~4J1~ DISCUSSION WITH TIM NELSON - E.VERFSl' GROUP 4:30 :EM (NO ATI'ACHMENI'S) I DISCUSSION OF DmNIS FOOI'ER DEVELDR>iENT WHAT-A-RA0;2UEl' sroRl'S CUlB 5:00 :EM (ATI'ACHMENI'S) . I DISCUSSION WI'IH JIM CASSERLY ON '!HE COI'I1IGES 5:30 :EM (A'l'I'AC'HMENTS) -. 7. DISCUSSION ON FINANCIAL ISSUES - TERRY POST 6:00 :EM (ATI'ACHMENl'S) A. CHARITABLE GAMBLING B. BUDGEl' PROCESS C. DISABILITY INSURANCE/FRINGE BENEFITS 8. DISCUSSICtil WITH BRW ARCHITECl'S 6:30 to 7:30 :EM (NO ATI'ACHMENl'S) 9. COUNCIL CXlo!MENTS. . ~ /fl/,. J)~ __ f C- . -710 '- . - . I~-~r.)(~~fo -\i) .~~ :::::;~,""""" ~ ~ ~~ "" DISCUSSION: LJ. . . ( ...-----' . . . - :-..:.;,' '" Moved: ".CJM.YOR COUNCILMB' (HICKS') . (GROWE) Seconded: .(I1AYO COUNCILMBR: (HICKS) (MALONE) . . (GROWE) (MAHOWAL THAT COUNCIL: VOTE: AYES: NAYS: Hicks.'. Malone Sather Hicks.', Malone Sather Growe Mahowald Growe Mahowald ABSTAIN: TOTAL: (- -) . .,,"., Sather Growe Mahowald Ayes Nays Abs, ALSO PRESENT: istrator ~ Attorney Treasurer Engineer k .. d rd::> ,,~ Par s Director Pub. Wks. Super~nt~n entv Planner Dep, C~ COUNCIL MINUTES DATE PAGE SUBJECT: DISCUSSION: . . .. Moved:kJM.YOR .SATHER) COUNCILMBR: (HICKS') (MALONE) (GROWE) C.(MAH~ Seconded: .(l:1AYOR SA'rHER) COUNCILMBR:((IUCK9 (MALONE) (GRpWE) (MAHOWALD) THAT COUNCIL: .ftJ ~ ~~ ~ ~ ~u - (/ . t),/ / / VOTE: AYES: ~ NAYS: Q Hicks.'. Malone Sather Hicks'"' alone Sather Growe Mahowald Growe Mahowald ABSTAIN: TOTAL: (- -) . .,,~, Malone Sather Growe Mahowald Ayes Nays Abs. ALSO PRESENT: C1k/Administrator Attorney Treasurer Engineer Parks Director .Pub. Wks. Superint~ndent Planner Dep. C1k , DATE PAGE COUNCIL MINUTES SUBJECT: - DISCUSSION: - . . -. .- f~rJ~~ ~~./~ (l~-, Moved: JlM.YOR SATHER) COUNCILMBR: (HICKS) (MALONE) (GROWE) .. (LMAHOWALD )""'):> Seconde!i: .(MAYOR SNfHER) COUNCILMBR:. ~~0 (MALONE) (GROWE) (MAHOWALD) THAT COUNCIL: VOTE: NAYS: D .Hicks.' e Sather Hicks" M lone Sather Growe Mahowald Grow Mahowald ABSTAIN: TOTAL: ( - - ) . - , Malone Sather Growe Mahowald Ayes Nays Abs. ALSO PRESENT: Clk/Administrator Attorney Treasurer Engineer Parks Director Pub. Wks. Superint'l{ldent Planner Dep. Clk -- ~ .. ;- .r ,'" . Approved Aug., 1991 POSITION DESCRIPTION CITY OF FALCON HEIGHTS POSITION: City Administrator OBJECTIVE AND SCOPE Plan and direct the administration of city functions to ensure efficient municipal services and development in line with objectives and general guidelines established by the city Council, Supervises the municipal office, administration of all departments placed within his/her jurisdiction which includes city clerk responsibilities, treasurer, parks and recreation, building inspection, public works and administrative functions of the fire department. Responsible for coordinating the city activities with the city attorney, engineering consultant, . Roseville Police, and planning consultant, Works in an advisory capacity with the commissions and committees. Operates with considerable discretion in normal administrative functions and in implementing policies of the Council. Responsible for effective recommendations in areas of policy, staffing, expenditures, etc. where council action is required. RELJl,TIONSHIPS Reports to: city Council Supervises: City Accountant Foreman, Maintenance and Public Works Park and Recreation Director Community Services Fire Chief in Administrative Functions of the Dept. Fire Marshal City Clerk Inspectors Through these subordinates, he/she indirectly controls additional city employees . Coordinates: City Attorney Engineering Consultant Planning Consultant Roseville Police . J . . -- SPECIFIC RESPONSIBILITIES 1- Direct and control all municipal operations. a. Works closely with subordinate managers to plan and coordinate their functions. b. Follows up to ensure effective service to the public and efficient conduct of all municipal affairs within overall city objectives, 2 . Develop and ensure effective utilization of administrative planning, budgeting, and control procedures. a. utilizes input from department managers to develop plans. ~ b. Prepares annual budgets for council decision. c. Controls expenditures within approved budgetary guidelines. Includes ensuring proper control of all purchasing functions. . 3. Develop and maintain an effective organization, a. Evaluates operations and makes or recommends changes in organization structure to best achieve city objectives, b, Supervises the selection of all employees, ensures proper employee utilization and motivation, reviews employee performance, recommends salary treatment, and determines replacement needs. c. Recommends employee benefit and personnel policy programs and coordinates all phases of personnel administration. 4. Ensure effective management and utilization of all physical assets. a, Plans for replacement or upgrading of equipment and other assets as appropriate. b. Directs efficient use and proper care of all existing assets. . , -- . . . . 5. Ensure effective management of financial assets. a. Oversees all fund management and investment activities. b. Ensures effective accounting practices to properly control financial assets and provide accurate information for financial planning. c. Develop plans to meet current and future financial needs. 6 , Provide effective support to the city Council. a. , Oversees all functions of a city Clerk under the Plan A form of municipal government. b. Prepares agendas and supporting data for all council meetings, relieves the council of other. administrative work, and implements council decisions, c. Provides reports, recommendations, and advice as appropriate to keep the council fully informed and assist its policymaking role. . 7. Ensure proper public relations, a. Ensures that public services are efficiently provided and that all complaints are effectively handled. b. Directs communications activities to keep the public informed of city plans and operations. c, Represents the city in local, regional, and state meetings and functions as delegated by the council. 8. Keep abreast of developments' in municipal operations and administrative technology. a. Research improved methods for possible use in Falcon Heights, b, Cooperate with other governmental units and muriicipalities on matters of mutual interest. c. Assist and coordinate with various city commissions as appropriate. . d. Cooperate with the state Fairgrounds and University Administration. 9. Perform other duties as delegated by the council or as necessary to effectively manage city affairs and achieve . council objectives. . , , . CITY OF INVER GR I 'J 8150 BARBARA ~~~N~EIGHTS 1.. VER GROVE HEIGHTS E . ' MN 55077 , ADMINISTRATION CITY ADMINISTRATOR POSITION SUMMARY The Administrator is the chief administrative officer of the City. To the extent allowed by law, and unless otherwise circumscribed by ordinance, resolution or Council directive, the Council hereby delegates to the Administrator full authority to exercise ministerial and administrative powers consonant with the Administrator's duties and responsibilities. The Administrator shall be directly responsible to the Council. The Administrator's duties and responsibilities shall be in the areas of: 1 ) supervision . 2) enforcement and implementation 3) coordination 4) personnel officer 5 ) budgeting and financial monitoring 6) council advisor The Administrator shall have the necessary and incidental powers to perform fully the duties and responsibilities set forth below, The Administrator shall also be the City Clerk and perform the functions of Clerk for a Minnesota statut~ry city operating under Optional Plan A, The Administrator's duties and responsibilities set forth below, are not all inclusive; the Administrator shall perform such other duties as may be prescribed by statute, ordinance, Council resolution or Council directive. . --------- -- ----------- . CITY ADMINISTRATOR - ADMINISTRATION Page 2 The City Administrator is directly accountable to the City Council. SUPERVISION 1 ) The Administrator shall supervise all department heads and shall coordinate the activities of consultants. 2 ) The Administrator shall supervise the management and operation of the Department of Administration. 3} The Administrator shall ensure the development of an effective municipal organization. To this end, the Administrator shall: a) when necessary or advisable, recommend changes in organizational structure; . b) work with department heads to ensure effective job descriptions and classifications; c) monitor the effective utilization of employees; d) recommend staffing addition or deletions; e} recommend salary levels; f} recommend employee training activities; g) implement staff reorganizations or staffing changes made by Council; h) coordinate operation of the City aepartments. 4 } To the degree deemed necessary, the Administrator shall monitor all consultant contracts and other contracts to which the City is party to ensure compliance. S ) The Administrator shall ensure that City buildings and other physical assets are effectively managed, . i. CITY ADMINISTRATOR - ADMINISTRATION Page 3 6 ) In accord with Council guidelines or directives, the Administrator may develop and issue administrative and ministerial procedures necessary to insure the proper functioning and coordination of City departments. These procedures shall be effective when issued and shall continue to be in effect until rescinded by the Administrator or by express Council action. The procedures shall not contravene stated Council policy nor shall the procedures contravene statute or ordinance. ENFORCEMENT AND IMPLEMENTATION 1) The Administrator shall be responsible for the enforcement of all ,. laws, ordinances, Council resolutions and policy directives issued by the Council. 2 ) The Administrator shall implement the Council directives and the stated Council policies. COORDINATION 1 ) The Administrator shall ensure that the recommendations of advisory bodies, commissions and task forces are presented to the Council. 2) The Administrator shall ensure that the Council's requests of or directives to advisory bodies, commissions and task forces are channeled to those entities. 3 ) The Administrator shall channel necessary information to advisory bodies, commissions and task forces. . I . CITY ADMINISTRATOR - ADMINISTRATION Page 4 4 ) The Administrator shall ensure that communications from the public or other governmental bodies to the Council are channeled to the Council. S) The Administrator shall coordinate City programs and activities as authorized by the Council, 6 ) When requested, the Administrator shall meet with state, federal and county personnel, 7 ) The Administrator shall represent the City at such official or semi-official functions as may be directed by the City Council. PERSONNEL OFFICER (. 1 ) The Administrator shall be the chief personnel officer of the City. 2) The Administrator shall be responsible for the implementation, enforcement and monitoring of the City's Personnel Policy as contained in the City Code and as may be interpreted Or further defined by applicable City Council resolutions, 3 ) The Administrator shall advise the Council as to the need for new employees. 4) The Administrator shall recommend. job descriptions for new positions and the Administrator shall recommend necessary or advisable revisions for existing positions. S ) In accordance with Council guidelines, the Administrator shall establish procedures for seeking job applicants and interviewing finalists for open positions. . . CITY ADMINISTRATOR - ADMINISTRATION Page 5 6 ) The Administrator shall recommend a person to fill employment positions. The ultimate authority to appoint or remove an employee shall be that of the Council. .'. 7 ) The Administrator shall periodically review the performance of employees and shall recommend promotions, transfers, demotions, or terminations. 8 ) The Administrator shall annually review employee salaries and recommend salary adjustments. 9 ) When directed by the Council, the Administrator shall represent the City in contract negotiations with bargaining units under the Minnesota Public Employment Labor Relations Act. (. 10) The Administrator shall recommend personnel rules and regulations \ and shall recommend changes in working conditions to the Council. 11 ) For purposes of the Minnesota Data Privacy Act, the Administrator shall be the "Responsible Authority". 12 ) With respect to maintenance of personnel records, the Administrator's responsibilities shall be as set forth in the City's Administrative Code. BUDGETING AND FINANCIAL MONITORING 1 ) The Administrator shall submit to the Council a single consolidated budget document which shall include statements relating to projected revenue and proposed sources, and all proposed expenditures to be made and obligations to be incurred by the City in the forthcoming fiscal year. . .. ! CITY ADMINISTRATOR - ADMINISTRATION Page 6 2 ) The Administrator shall administer and monitor all provisions of the adopted City budget. 3 ) During the fiscal year, the Administrator shall recommend budget modifications, if necessary or advisable. 4 ) On a regular basis, the Administrator shall report to the Council on the status of the City's finances and the status of the budget. 5 ) The Administrator shall recommend appropriate adjustments to maintain costs consistent with operating budgets and objectives. 6 ) The Administrator shall recommend financing plans to accomplish major capital improvements, . 7 ) The Administrator shall be responsible for the application of approved financial and accounting procedures and methods within the Department of Administration, 8 ) The Administrator shall recommend accounting and financial procedures to be adopted and employed in all City departments. 9 ) The Administrator shall be responsible for ensuring that specifications are prepared for all items for which competitive bids or quotations are required. The Administrator shall recommend such specifications and be prepared to advise the Council on the advisability of the specifications. The Administrator shall monitor the competitive bidding processes, shall, when deemed advisable, attend bid openings, and shall recommend award of contracts. . . CITY ADMINISTRATOR - ADMINISTRATION Page 7 10) The Administrator shall develop and ensure effective utilization of appropriate budgeting and administrative planning and control procedures. The Administrator shall work with department heads to monitor department budgets and to ensure that proper budget control procedures, approved disbursements procedures and purchasing procedures are established and followed. 11 ) The Administrator shall monitor the investment of City assets and shall make recommendations relating thereto. 12 ) With respect to purchasing, the Administrator shall act as chief purchasing officer and shall have the responsibilities established by that section of the Administrative Code dealing with Purchasing . Procedures. COUNCIL ADVISOR 1 ) The Administrator shall recommend changes, amendments or repeal of existing ordinances whenever necessary or advisable, 2 ) The Administrator shall attend and may participate in discussions at all meetings of the City Council, unless excused from attendance by the Mayor. The Administrator shall also attend such other meetings of official City bodies of commissions as may be directed by the City Council. 3 ) The Administrator shall keep informed and shall inform the Council on intergovernmental matters affecting the operation of local government, such matters to include: a) Court decisions where the City is a party . b) County, state and federal requirements : , . CITY ADMINISTRATOR - ADMINISTRATION Page 8 c) State or federal administrative rules 4) The Administrator shall advise the Council as to the future needs of the City, The Administrator shall recommend long-range programs and capital improvements. 5 ) The Administrator shall be responsible for preparation of the Council agenda. 6) The Administrator shall advise the Council on all significant matters which require Council action or approval. The Administrator shall insure that such matters are presented to the Council. 7 ) The Administrator may present recommendations concerning the (. policies and objectives. 8 ) The Administrator shall keep informed on developments in the public administration field and shall advise the Council on matters relating thereto. CLERK The Administrator shall be the City Clerk and shall have the obligations and powers of a City Clerk pursuant to statute and ordinances in conformity therewith for a statutory city operating under Optional Plan A. Adopted by City Council: August 14, 1989 . - .. .. . CITY OF MENDOTA HEIGHTS, MINNESTOA CITY ADMINISTRATOR RECRUITMENT PROFILE The Communitv Mendota Heights is one of the Twin cities premier suburbs, offering high-quality residential and business areas. Per capita incomes and average property values are among the highest in the area, but homes in the more moderate price- bracket are also available. While the emphasis has been on maintaining large-lot, spacious development, the community is unique in its convenient location and highway access. Both I-35E and 1-494 traverse the city. Major employment centers (downtown Minneapolis, downtown st. Paul, and the Bloomington 1-494 "strip", including MSP airport, are virtually minutes away). While Mendota Heights has traditionally been thought of as a st. Paul suburb, the City is becoming more cosmopolitan, with residents employed in many parts of the metropolitan area. At the same time, the Minnesota and Mississippi Rivers form a natural green belt around the community, enabling it to maintain a quiet, private way of life. . citizens place a high emphasis on parks, open spaces, and recreation areas, as evidenced by their recent approval of a $3.4 million parks bond referendum. Excellent schools and a well-educated populace complement the traditional but progressive character of the City, civic pride and aesthetic excellence are hallmarks of Mendota Heights. Despite its residential heritage and character, the City does welcome high-quality business development, and approximately 25% of the land has been reserved for that purpose. Most of that land is owned by United Properties, one of the Twin Citie's foremost developers of business properties. Recent locations in the Mendota Heights Business Park include Solvay Animal Research Laboratories, Northland Insurance, the American Registry of Radiological Technicians., and a Courtyard by Marriott hotel. cray Research (the supercomputer giant) has long maintained facilities in the community, and intends to relocate its corporate headquarters here in the near future. Mendota Heights currently has 9,000 residents, up from about 7,200 in the 1980 census. While most of the land in the community is now platted, significant new construction of single- and mUlti-family homes shoUld continue for the next . few years. The ultimate.population projection is in the range of 12,000 - 14,000. There are currently 3,000 jobs in Mendota Heights, and. that number is expected to grow to around 6,000 by the year 2000. Land area is 10 square miles. . . The city Government Mendota Heights is organized under Minnesota statutes as a Plan A municipal corporation. The Mayor and four Councilmembers are elected at-large on a non-partisan basis for overlapping terms. Administrative responsibilities are carried out by the city Administrator, under a resolution adopted by the Council in 1972. Mendota Heights is recognized by the International city Management Association under the General Management (GM) category. The City employs 39 full-time employees, along with several part-time and seasonal personnel. An organization chart is attached. The current operating budget is just over $3 million. City functions include Administration, Police, Volunteer Fire, Engineering, street, Parks, and utilities. The position of Administrative Assistant to the city Administrator was added in 1989, with that person having particular responsibilities in the areas of recycling, planning, and personnel, as well as providing general support to the Administrator. In its Vision statement, adopted in 1986, the City Council states: . The mission of the Mendota Heights City government is to preserve and enhance the quality of life in the community and to plan, direct, and implement orderly growth. This is achieved by encouraging and fostering: 1. Community identity, citizen participation, and open access to government decision making. 2 . High quality, cost effective public service. 3. Conservative financial management and low tax rates. 4, Development and maintenance of parks, trails, and open space. 5. High standards of diversified housing stock with continued emphasis on single-family homes. 6. Further development of well-designed commercial and office projects, The Mayor and Council follow a "team approach" with staff and advisory Commissions in carrying out this mission. Periodic retreatjteambuilding sessions are held to identify projects and organizational issues. An updated list of target goals is maintained, with periodic reporting of progress by the City Administrator. with the Mayor and Council all employed full-time in other . positions, they rely heavily on the staff to tend to the administration of the city. Council also looks to staff to identify and analyze pending issues, providing alternatives and well-thought out recommendations for consideration and policy action by the Council. --...--- . ... In 1985, the management staff adopted a statement of Management Philosophy. They follow the participatory, public service oriented style of management articulated in that philosophy. The City's major capital facilities are in excellent shape. A new city Hall was constructed and occupied one year ago. The building reflects the community's emphasis on high- quality development, and the residential character of Mendota Heights. Current QK Pendinq Issues Park Development and Maintenance Recreation Programming Residential/Commercial/Business Development Growth Management Infrastructure Replacement Resolution of Noise Problem with MSP Airport Water Contract with City of st. Paul The Position . In filling the position of City Administrator, the Mayor and City council are seeking a person with demonstrated commitment to the highest ideals of public service and professional city administration. Specific qualifications, capabilities, and personal qualities are as follows: Qualifications Master of Public Administration, or closely.related degree. 3 - 5 years progressively responsible experience in professional city management, preferably as a manager/administrator, or assistant, Generalist education and exposure to a broad range of municipal management issues. Professional Capabilities Excellent communication skills - verbal and written Working Knowledge of Municipal Operations - high credibility Budgeting/Financial Management Knowledge of personnel (labor relations) practices, laws, and issues (including comparable worth), Working knowledge of Municipal Law Familiar with computer applications to municipal services Intergovernmental Relations - Regional, State, and Federal - informed and able to represent City'S interests . Working Knowledge of Land Use Planning Procedures Analytical - good problem solver Information gatherer/processor . Personal Oualities Good people skills - Able to work effectively with people of differing opinions and personalities strong Public service orientation High Honesty and Integrity Versatile and Flexible Problem Solver Open-Minded - open to new ideas Creative and an Idea Person - willing to promote new ideas Proactive Willing to continue with Existing/Identified Projects Dependable - Good Follow Through on Projects and Assignments Results Oriented, a tlDoer", Not Bureaucratic Good Delegator Comfortable with a "Team" Approach to Governance and Management strong Commitment to Professional Development of Self and Staff Willing to Establish Residence in Mendota Heights Beqinninq Salary $ 45,000+, depending on qualifications and experience. . Application Application is by resume with three references sent to: Mayor Charles Mertensotto city of Mendota Heights 1101 Victoria Curve Mendota Heights, MN 55118 by Friday, September 29, 1989. The City is an Affirmative Action/Equal Employment Opportunity Employer. The city also participates in the ICMA Retirement Corporation. . ---- . CITY OF ARDEN HILLS MFlDlANOOM DATE: JUne 12, 1992 ro: Mayor and city COUncil ~ GJL-/ FRCM: Catherine J. Iago, 1\cting Clerk 1\dministrator SUBJEX::T : city 1\dministrator Position Attachro. is the existing city Administrator position description, three job descriptions from other cormnunities, the 1992 Pay Plan, and the organizational Chart discussed at a previous worksession meeting. Mr. Brimeyer will be present to discuss the proposed. job search for the Administrator, and receive Council direction relative to the position description, qualifications and salary. crr/ts M92-190 . . ---- COUNCIL MINUTES DATE PAGE SUBJECT: ~ . -. r; .' oS::-/iO ~fAvJ .. Moved: COUNCILMBR: (HICKS) . (GROWE) {MAH LD COUNCILMBR~C~ (MALONE) (GRoWE) (MAHOWALD) /1 ~~ AYES: NAYS: .Hicks.'. Malon !rather Hie ks. (, Growe ahowald . ABSTAIN: TOTAL: ( - - ) ~ -' - . Malone Sather Growe Mahowald Ayes Nays Abs. ALSO PRESENT: Clk/Administrator Attorney Treasurer Engineer /itparks Director "Pub. Wks. Supel.int'lndent ~nner~6..D~ , p ~ . ~. c/ ~ ' . wI 1.--. 'A~t~~ -v//.-:-S-~ 1Nt,.,"_~. ~ 1;;Lv -- ~t~ -f-_' c ......@ __ ); ) '" JU.. - ~~. , p-- . ~j~ ~;1 V ~0-... -J----~ ) s- rr-r t#- / ~ Fr ~.v ~~ J (~cf-- ~~~. LJ .,1 ~ i 6"" (i) CYl/ / ~ &,.,~( ~/ i ,n . v (/ f~ j{)U~ @ - ~ . ~~~ r. ~ ~ ~ ~- 3 tt//Y.~ ~/I'-O ~ ~ 1-0 p//~ if ~ :/1/ . V()~ u e. S J /) ~ ---- COUNCIL MINUTES DATE PAGE SUBJECT: DISCUSSION: .- .-. = " Moved: klM.YOR .SATHER) COUNCILMBR: (HICKS") , (MALONE) (GROWE) (MAHOWALD) Seconde9.: .(MAYOR SAlHER) COUNCILMBR: (HICKS') . (MALONE) (GRpWE) (MAHOWALD) THAT COUNCIL: VOTE: AYES: NAYS: Hicks.'. Malone Sather Hicks.'" Malone Sather Growe Mahowald Growe Mahowald ABSTAIN: TOTAL: ( - - AbS'- :,:-,', Malone Sather Growe Mahowald Ayes Nays ALSO PRESENT: Clk/Administrator Attorney Treasurer Engineer Parks Director Pub. Wks. Supe~.iitt'1{ldent Planner Dep. elk . CITY OF ARDEN HILLS MEHIlANOOM DATE: June 12, 1992 TO: Mayor and city COImcil ~ FRCII: catherine J. raga, Acting Clerk 1\dmini.strator Q SUBJECT: Dennis Foster, What-A-Racquet sports Attached is a confidential letter and affidavit fram Thomas P. Balyk, Attorney for Dennis Foster, to Attorney Filla received on June 12, 1992, regarding the development of What-A-Racquet Sports Club. Mr. Filla will be present at the 6-15 worksession meeting to discuss this item and will have his response to this infonnation on Monday. crrjts M92-191 . . BalJ'k & Wiseman @001 [/6/12/92 12;28 FAX 612 487 2083 .. . BALYK & WISEMAN KrrORNEYS AT LAW AN AS:'>OCJIt.'flON NO't", PA!(("NEt<-'iHIP FIVE ~T COUNTY ROAD II SUI1.E FIVE , ST. PAUL, MINNESOTA 55117 THOMAS P. BALYK/ (612) 4H7~19~1 'REAL PROPERTY SPECIALIST, CURT" M, WISEMAN Cl'.1tnrlED UYTHf MINNfS1X!A IJAVID J. 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DA1'E: (J ~ 12 -92 TINE: 1:20pm THE FOLLOWING PAGES ARE EEING FAXED TO: NA..l.fE : KCl+h ~ laqo PIRM: C J-N O+- kden i-l'ills ...J FAX NO.: Ie, 33- 7 S3l TELEPHONE NO.: FROM: NAME: lhornas P f2cl~K J6sq 0 FILE NO. :-90-13t - CC4 TOTAl, NUMBER OF PAGES:R Original to follow by mail (including cover sheet) V Original not to tollow by mail SPECIAL, INSTR!JCTIONS/CO~NTS: l1:=-- t6 IlDWLIJ -I S 0... Oll~ cl +he ktler ancL AffldcvJ\T of DchnLs-Fos-b~ Sen+ . 10 0erome r; J I Q, , AHor new Q+ Law , ..J If any difficulty in receiving this transmission is experienced, nl p; -?Ill 1,<';"1"1\ ,~n..., .,.... r.' u -= -. .-- BALYK & WISEMAN . ATTOR...N"EYS AT LAW AN ASSQCHTION NOT A P."-.RTN"ERSHl1> FIVE EAST COUNTY ROAD B SUITE FrVE ST. PAUL, MIl'<'NESOTA 55117 THOMAS p, RALn,- (612) 487-1991 'REAL PRQPERTI' SPECIALIST, CURTIS M. W1SEMA..N CERTIFIED BYTHE MINNESOTA DAVlO J. SCHOENECKER STATE B,;..R AS;;QCLDION t=.'\..~ (612) 487<~O.':>3 June 12, 1992 Jerome Filla, Esq. 50 East Fifth Street Suite #300 St. Paul, MN 55101 RE: What-A-Racguet sports Club Our File No. 90-131-004 near Mr. Filla: . On June 8, 1992:, I appeared before the city Council and requested that the Council clarify and place on the Council agenda for June 15, 1992 the approvals necessary for What-A- Racquet sports Club previously approved at the Council meeting on December 10, 1.990. In reviewing the December 10th minutes, it appears that a site plan was approved with some additional conditions.. At that meeting the Council did not approve issuance of a building permit, but did require the developer to COmply with six additional items. Those items are set forth at the end of the December 10, 1990 Council minutes, page 5, set forth as items A.. through F. Therefore, I would request that (1) the City council exclude the Dennis Foster project from it's prOposed construction mcratorium; (2) the City Couricil approve the issuance of a building permit upon completion of those six items; and (3) the city Council instruct the staff that upon presentation of items A through F, a building permit be issued. Dennis Foster has expended in excess of $114,000.00 in costs directly related to the aoquisition and approval of this project. At the point at which Mr. Foster received the City approval in December 1.990, his main hurdle was obtaining financing. On April of 1992, Mr. Foster received a mortgage commitment from Greater Memphis Mortgage, Inc. The mortgage connnitment would provide the requisite funds to complete the project. He . then initiated a conversation with Kathy Iago and John Bergly. Mr. Foster was told that the appropriate procedure to be followed Jerome Filla, Esq. . June ~2, 1992 Page 2 would be to plaCe his project on the Planning Commissions agenda. He reviewed the financing commitment schedule and determined that be would be able to timely close and comply with the City request for Planning Commission approval. He fully expected at this point that the approval was merely a formality required to reinstate his "suspended" project. The suspension occurred as a result of his conversation in December, 1991 with City staff which l",d him to believe that no further extensions would be required if he agreed to "suspend" his application. The City never indicated to Mr. Foster that he would be required to fully reapply for building permit approval. Mr. Foster placed calls to the city and was told to reapply for an extension and did so, as requested. He was contacted by Mr. Bergly and was informed that an.extension was not necessary, but should have the Council in effect "suspend" his proposal. Therefore, Mr. Foster thought that he had COme to an agreement with the City, and did not even attend the December 30, 1991 Council meeting at which this proposal was discussed. Therefore, Mr. Foster continued in his efforts to obtain a loan commitment. . At no time prior to the Planning Commission meeting on June 3, 1991 did Mr. Foster receive any indication whatsoever of a pending moratorium or any indication that his project would not be approved, even though he had numerous contacts with the City .staff. During the month Of June he had expended $22,000.00 of non-refundable monies attempting to meet the financing commitment closing date of June 12th. If Mr. Foster had expected anything but full Council approval, he surely would not have expended these sums. These expenditures are documented in the attached affidavit of Mr. Foster. It appears that the December 10, 1990 meeting did not authorize the issuance of a building permit, but did approve the site plan. In reviewing the ordinances and Mr. Bergly's memo of December 30, 1991, in which he cites section 7(e), he has lumped together a number of projects. However, I believe that the memo did not state the correct code requirements. In section 7(e) of Mr. Bergly's memo, it references building permit issues, and appears that the Council's December 10, 1990 meeting can authorized the site plan and not the issuance of a building permit. It contemplated Mr. Foster's compliance with additional items. This is inconsistent with Mr. Bergly's and the council's position that the permit expired in December of 1991, since the permit was never authorized to be issued. Therefore, no extension was ever necessary, and no action was required by the . Council on December 30, 1991. Ul.."...~;..~ .J.. il.l.;;;'ClllGll 't:::.J Vl);. --. 'v ._._, ~__ ~ ",.r.. v -'- '"' -'" J' "'''" '_" ,~. Jermone Filla, Esq. . June 12, 1992 Page 3 Mr. Foster's position is that he atteJllpted to contact the City staff, and that the City staff provided him with improper advise which he relied on and therefore, based on that relianoe, believed he. had a vested right to that building permit if he complied with items A through F of Council meeting of Oecelnber 10, 1990. At no time did the City state that Mr. Foster's project was dead. The March 9, 1992 letter stated that his request for an extension had been denied which was not appropriate, and was not supported by the actions in the December 30, 1991 Council meeting. My position is that Mr. Foster did everything possible to work and cooperate with the City, and expended $114,000.00 based on his expectation and belief that he had a right to obtain a building permit if he complied with the items set forth in the December 10, 1990 Council Motions. I believe that the section of Mr. Bergly I s report in December 30, 1991, is further an example of confusion as to the Council action. Therefore, I respectfully request the City to approve this :matter. . Sincerely, BALYK & WISEMAN ~13;f6i/! Thomas P. Balyk Attorney at Law TPB/~ Enclosures co; Mr. Dennis Foster Ms. Kathy rago . STATE OF MINNESOTA ) ) ss. AFFIDAVIT OF DENNIS FOSTER COUNTY OF RAMSEY ) . Dennis Foster being first duly sworn on oath deposes and sta.tes: My name is Dennis Foster and I am the developer of What-A- Racquet sports CoUrt, Inc., proposed to be built in Arden Hills on Lexington Avenue North. In December of 1990, I received approval for a site plan from the City of Arden Hills city Council. The approval contained six enumerated stipulations that I had to comply with prior to the issuance of a building permit. All six items 1: was, and still am confident can be satisfied. The only reason I did not immediately proceed with the project was that I had not yet received a financing commitment from a lender. . From December of 1990 until April of 1992, I approached nearly three hundred financial institutions; including commercial banks , savings and loans, pension funds, insurance companies, priva.te lenders, consortiums, and brokers. I fully believed that the site plan approval given in December of 1990 was still valid until December 1991. In discussions prior to that approval in December of 1990, I had spoken with the city on numerous occasions, and there were a number of small issues that We negotiated Or modified on the original site plan to take care of various concerns, but it was always a matter of fine tuning the proposed site layout. There was never any discussion or indication that the city may d:i$approve the entire conce.pt. It . Was simply a :matter of conforming to the regulations and concerns of the City employees. ---- PAl 612 487 2083 lJaly!< & Wiseman l.Q'JlllltJ 06/121lI2 12::n After the December, 1990 city Council approval, I spent . approximately $35,000.00 between December or 1990 and December of 1-991. These expenses were in the form of carrying expenses for debt, architect=al expenses, expenses accrued by the City processing with their engineers and other staff, Rice Creek Water-shed District approval, and procedures for securing financing. In December of 1991, I made formal application for an extension as per city direction. I was told by Kathy Iago that my written request must be submitted at least three days prior to the December 30th city Council Meeting. I submitted my written request on December 1-5, 1991- Just prior to the Council meeting, for Which my site plan was SCheduled for review, I was contacted . by John Bergly with an alternative suggestion of simply "suspending" the site plan. That was the term he used; "suspending" . He stated the Council would not act on it either way; neither approve or deny it. It would simply be carried in a "suspendedR state until I could receive financing. There were two other projects in a very similar situation and his suggestion was baSed on the fact that the city did not want to 'spend time and money approving site plan extensions for which financing may not be avaiLwle. This made sense from my point of view, in that my project was similarly situated. Mr. Bergly stated that once approval was obtained, the site plan could simply be "reinstated", and I could proceed on with the project from where I had left off and not have to "reapply". . 2 4:!:jl)\)/ -- - -. -...- ....;~~II..~ ~.. .,.....>'-''''.....u His suggestion made sense to me. He stated he would handle . the withdrawal of my formal extension request. Therefore, I did not go to the December 30, 1991 Council meeting. In the following three months I spent approximately another $7,000.00, mostly in the form of charges for debt previously incurred and in costs incurred in continuing to seek financing. In April of 1991, I received a letter of commitment from a commercial lender in the amount I deemed necessary to proceed with the project. I notified Kathy lago at the city of Arden Hills that I was ready to get a building permit. Kathy rago said the proj ect would be put on the June 3, 1992 Planning CommiSsion agenda. I was surprised to hear that I would have to go back to the Planning CommiSSion, because I was simply extending site plan approval. This did not make sense to me, because had I extended . site plan approval in December of 1991, instead of "suspending" it as John Bergly suggested, I would not have been scheduled for Planning Commission review in December of 1991. still, I had no reason to believe that there would be any problem. Nobody from the Planning Commission mentioned any problems or concerns with the project. I even talked with Dale HiCks, on approximately May 18, 1991, in regard to Park Dedication Requirements, as that is one of the items I needed to complete prior to the issuance of a building permit, and he did not mention that there were any problems. I came to the conclusion that I could proceed as indicated by City employees without any problems; and committed . another $16,000.00, mostly in the form of loan commitment fees, 3 FAX 612 4,j7 2u8:J llalJ'l{ '" Ii' 15 eman Ii] 008 Uoi12/~i.:. 12; ;j;: architectural fees, and attorney fees. . During the June 3, 1992 Planning Commission meeting, the city moved my approval down the agenda and then after my case was introdUCed, a Motion was made to vote on a construction moratorium iln.mediately, before they addressed my project. The moratorium was not even on the agenda and was quite a surprise, to say the least. That is the first point at which I had heard of any consideration whatsoever of a construction moratorium or any other delay or problem in reinstating my site plan approvaL It also seemed quite peculiar that they didn't discuss the moratorium until after the other construction related agenda items were dealt with, and then immediately before my item. Nobody at the Planning Commission meeting was surprised to hear about a moratorium, and everyone on the Planning Commission . as well as City employees, Were fully aware of what was being dis=ssed. It was of no surprise to anyone with the City, but it was fully a surprise to myself and other observers in the room that are not connected with the city. I believed that since I had complied with all the prior issues the city had raised and, the site plan had already been approved, "reinstating" the site plan approval was merely a fomality. I went along with the City's suggestion that the approval be "suspended", instead of extended in December of 1991. At the request of Kathy Iago, I did still complete the application for reinstatement. I also submitted another fe.e. for the reinstatement, and I talked to a number of people at the . city, none of whom indicated any problem or concern with the 4 - FAX 612 487 2083 Bal,'I{ & Wi seman 141 009 06/12/92 12: 3.3 project proceeding as approved. Nobody eve.r mentioned any kind . of moratorium, or any proposed changes in zoning ordinances. with all that in mind, I proceeded as if the status of the approval was the same as prior to December of 1990. Of the six conditions that I have needed to meet prior to ",_.,. building permit issuance, they can still all be ti~ely met so I can close on the financing. First, two lots need to be combined into one, a small legal matter. Second, I need to provide an access easelllent over Control Data's entrance drive, which has already been agreed to by Control Data, subject only to final drafting. Third, I need to grant easements for fire lanes. The fire lanes are entirely on my property and have already been approved by the Fire Chief. Fourth, I have already obtained the . Rice Creek Water Shed District permit, which is in my possession. (See Exhibit A) . Fifth, I need to meet park dedication requirements. A letter is already prepared for park dedication. Last, I need to post a landscaping bond, and I believe it can he done quite easily. All of these items that the City has requested as necessary for building permit approval, can be timely completed to satisfy the City's requirelllents. My total expenditures of nearly $ll4,OOO.QO have been based on the interpretations of the city, and my belief and reliance that the City approved my site plan and 'Would grant me the pe=.it that they said they 'Would. . 5 -- FURTHER YOUR AFFIANT SAITH NOT. . Q0'~ ~ ------, Denni::; Foster before me , 1992. No JULIE A.J 8,'- 8( 8~~~ UyC . . .eipraO;f.9,mT . . 6 .-. . RICE CREEK WATERSEED DISTRICT RCWD PERMIT NO. 90-110 SUITE 374, ARDEN PLAZA City or ltrden Bills 3585 NORTH LEXINGTON AVENUE cc: A-R.DEN HILLS, MINNESOTA 5Sl26 J .M. Hontgorrery, Inc. RCWD File PERMIT PERMIT .APPLICATION NO.90-HO Issued to: Control Data Corporation/Dermis Foster, 1415 Arden Oal<:s Drive, Arden Rills, JvlN 55112 Location: 4155 Le..xington Avenue North (Northwest quadrant or the intersection of Le..>dngton Avenue Nor-ill a.'1d County Road F), Arden Hills, Purpose: Approval of Final Si.te Drainage Plan for creation ofa tennis. and r~tball ~lex, 8.'1+ a=es. At their meeting on May 22, 1991 , the Board of ~nagers of the Rice Creek Watershed District reviewed YOur permit application and the recommendation of the District Engineer based upon the following eyJrribits: 1. Permit Application dated June 14,1990. 2. RaiD COIIlJ:n:ehensive StormvaterManagement File 81C03, 3. Site grading and drainage plan, prepared by Nom Wells, Architect, P .A, , dated August 1, 1990, last revised May 16, 1991. . 4, Pre-pe.-rmit investigation letter prepared. by Tom Rasmussen, JMM, to Bill . Boyer, dated April 9, 1990. 5, Correspondence from Nom Wells, elated Apri111, 1991, outlinirlg revisions made to project, 6. Cash s1.rrety in theam:'iunt of $2,000, received Jvne ll, 1991. ~hey found the project as planned to be in accordance with the Rules & Regulations and Guidelines of the District and therefore approved the permit as requested, with the following additional stipulations: no ft.n:ther stipulations, . It is the responsibility of the. Permittee to provide all measures Ijeces.<;;ary to contain sediment on the site d1:lring construction. This may require the USe of erosion control measures not outlined I CQC.1:J.m.lEld en :r~VOl:"a8_ ., i ., j EirnIBIT A : i - ._- ... -.-. .-.-- -- .. ._n. _. RICE CREEK WATERSHED DISTRICT PERHIT #: 90-110 ~ 3585 N. Lexington Avenue, Suite 374 . Arden Rill", .MN 55126 Applicant: Dennis Foster Date: PROJECT: Final Site Drainage Plan for creation of a tennis & raquetball complex, 8.9+ acres at 4155 Lexin"C7J;on Ave, N (!\1W quad of , Letington Ave. & Co, Rd, F). Arden HiT1s, , I OWNER'S CERTIFICATION To be completed by the Permittee: I hereby certify that the work described in the above- referenced Permit has been completed as of the ___ day of I 19__, in accordance with the authori~ zation granted by the Rlce Creek Watershed District, and is now ready for inspection. , I 0 Please refund cash surety. j t $2,000 :"1 Signature of Owner " Form D2-78 i I " ; ~ ~. I 1 I ) f t , I < I , j 1 i t ~ ~ . EXHIBIT A ___u_ ',I 06/12/92 12: .34 FAX 612 487 208.3 Baly), & Wiseman ~1)13 I . - I ". '. :XJ -~ n '. CD ..... 1""1"'1 - :::t:I 0 ~ >< '" n) :::0 -cr en C"':) -I ) - c:: ('b Z;::::lQr-l"I::e ::T 1 =" ~I'"'V"'IC -- ~ -0(;0")........ (J) . ~ r~ - - - en <D - -.: ~ f-{ ~ ~ -- en (.Q - =:T CD ::s - 0.. ~ , =t~ - - ~ c -f .! -- r=f6o~ en 0 ...- - -.. -- -0 OJ n - c..,:) ())~O CD C;I c.n X 00 " .' ::r1 _08 f j ~ 0'1 r-- -DC? 0 <D en >< - -- .J).,- .-p ::3 CD - c.o ?J- - c. - ..... e 0 - ::::J , jVt, - - ).> :J C6 t:J " :::::J c: . ~ "'"" - CD 0 - . z 3 - ...c ;S - ~ "- )> 9l -. -- ! ri ..,. ~ 1 CD ..0. 0- CD :::s , p ~ :x: 0 ..... -- -- " \ - 0 ~ "'D - en 1. 3: .J.) - :J: tu t' 1 :z 0 (') ~, , c:.:n -, CD (.n fit ~ ....... -. ~ - . ,Ia FAX 612 487 2083 Balyl, & \Hseman Il] 001 . (Iu :15/ 92 U:24 BALYK & WISEMAN . ATTORNEYS AT LAW AN AS50CLA:l"ION NO')' A P;'[([NJ:.JtSHUI fIVE EA>T COUN.['Y ROAD B SUITE FIVE , ST. PAUL, MINNESOTA 55117 THOMAS P. MLYK' (612) 4~7-1~91 '!l&L PROPERTY SPECIALIST. <':UR"nS M. WlSE..."o.1.AN CEll'rlFIgU tly THE ~lINNESOTA DAvia J. SCHOENECKER ST;l:I'E l'AftAS';OC1,\nON :PACSIMILE TRANSMITTAL COVER SHEET FAX: (611) 'HI7~:!o.a3 The information contained in this facsimile message is privileged- and confidential and is intend~d only for the use of the individual or entity na.med below. If you, the reader of this message, are not the intended recipien~ or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that you are strictly prohibited from dissemina~ing, distributing or copying the information contained in this facsimile lnessage. If you have received this message in error, please notify us immediately by telephone and return the original message to us at the above address via the U.s. Postal Service. DATE: fIJ -IEr8:? TIME: 3:j8 1--- -- --- . THE FOLLOw.I:NG PAGES ARE BErNG FAXED TO: N>>lE: ~cdh~ ra~O . FI"", G~ A (ten Hi II S FAX NO.: b 3-783~ TELEPHONE NO.: .~ --,~- FROM: NAME,Than= P B~~~ ~._n FILE NO.: q 0 - B I - . TOTAL NUMBER OF PAGES:l l_--- Original to follow by mail (includin~ cover sheet) Original not to follow by mail SPECI4L INSTRcrCTIONSjCOMMENTS: . If any difficulty in receiving this transmission is experienced, plei\.se call (612) 487-1991. 66/Ji';:92--~ FAX 612 487 2083 Balyl{ & W1seman ~002 .1--- =:,-----/' . BALYK & WISEMAN -- ATTORNEYS AT LAW AN ASSOCtATlON NtY]' A PARTNERSHI? FIVE EAST COUNTY ROAD B SUlTE FrVE ST PAUL, MIN"1ESOTA 55117 THO~\{A$ P. 8AlT1\:& (611) 437-1991 "Rfj\L PROPERTY $Pf-CIAfJST, CURTIS 1-L W!SEMAN CERTIFIED BYTHE MINNESOTA DAV1D 1- SCHOENECKER STATE BAR ASSOCL~T!ON F."\.,"'{: (612) 487-2083 June 15, 1992 Jerome Filla, Esq. 50 East Fifth street Suite 300 st. Paul, MN 55101 RE: What-A-Racquet Sports Club Our File No. 90-131-004 Dear Mr. Filla: . On June 12, 1992 Mr. Foster submitted to you an affidavit delineating the actions taken towar~ building the proposed What- A-Racquet Sports Club. The purpose of this letter is to further supplement the aforementioned Affidavit with a list of specific, unique expenses accrued and attributable to this project. Please see the following: L EARNEST MONEY 5,000.00/ 2. PLANNING AND ARCHITECTURAL FEES (Stageberg Partners, Inc.) 2,995.00 Norm Wells Architect 14,363.12 Quentin Wood-Civil Engineer 350.00 Materials for Architectural Model 56.13 Stroebeck & Johnson (Chet) 5,063.81 DP Planning - Architectural Consultant 60.00 j GME Consultants - Envirorunental study 1,632.29 3. PURCHASE OF BUBBLE 40,000.00 Chisago Lakes Arena 4. STORAGE OF BUBBLE 1350.00 . 5. CARRYING COSTS/FINANCING Randall Berg Finance - Financial Broker 500.00 (IG/15/92 14: 25 FAX 612 487 2083 Ba1J'I{ & Wiseman Ii!l 003 . Jerome Filla, Esq. June :1.5, :1.992 Page 2 6. CITY FEES (Site Planning Review) 2,433.16 (Arden Hills Planning Application Fee) 150.00 (City of Arden Hills Engineer Fee) 8:1..06 (Rice Creek Water Shed District 2,249.10 Permit) 7. FINANCING AND CARRYING COSTS Consumer Edge Financial services, Inc. 95.00 Worldwide Capital Corp. Fund 2,995.00 Greater Memphis Mortgage CO. 12,750.00_ Miller Mortgage - Loan Processing 200.00 Closing Fees for Special Mortgage 97LOO Second Mo~gage - First MinnesotajNorwest Bank 25,169.75_ 147"81> April 90 to May 92 Business Financing - Reimbursement 89.04 Small Business Loan Association Co. 2:1.5.00 Vantine Partners, IntI. - Investors 775.00 Seed Capital Network - Financing 195.00 . Gibbs Publishing - Financing 19.95 Miscellaneous :1.35.52 8. ADVERTISING Star & Tribune Ad for 37.50 Venture capitOl I star & Tribune Ad for 49.00 Venture Capitol star & Tribune Ad for 94.90 Tennis Professional Kinko's Copies 30.62 copies of blueprints Secure Financing 17L40 Tom Lenfestey - Financial Broker 500.00 since Mr. Foster cannot close on the Purchase Agreement with Control Data without Council approval, all the expenses incurred to date will be lost. Therefore, under the Ridqewood Development Company v. state of Minnesota, 294 N.W.2d 288, 292 (:1.980) . Mr. Foster has demonstrated that these expenditures are unique to the proposed project and would not be otherwise usable. In addition, the conduct of the city in enacting its moratoriilll! would deprive . 2 06/15d12 14:25 FAX 612 487 2083 Ba1Jcj{ & Wiseman ~004 . Jerome Filla, Esq. June 1.5, 1992 Page 3 Mr. Foster of a vested property right in this case. The city has to balance the hardship to the individual against the potential frustration of the public interest. Here the hardship clearly falls on Mr. Foster without any corresponding hardship to the City Planning process. This is not a case of a large development company with large resources attempting to develope its real estate. Instead this is an individual with limited financial resources having risked his entire net worth on this development project. Please note that this list is supplemental and indicative of the unique unreCoverable expenses that Mr. Foster has accrued in pursuit of this project. It is not exhaustive or final. Respectfully submitted, BALYK & WISEMAN . ~BalYk' Attorney at Law TPBjjh ce: Mr. Dennis Foster . 3 - PETERSON, FRAM & BERGMAN +REAL I'ROI>ERTY LAW SPECIALIST WARREN E. PETERSON PROFESSIONAL ASSOCIATION *ALSO ADMITIEV IN FLORIDA, f JEROME p, FILLA ILLINOIS, WASHINGTON O,C., DANIEI_ WITI rRAM 300 MmwEST FEDERAL BUILDING WISCONSIN GLEN)'\; A. BERGMAN 50 EAST FIFTH STREET - . JOH!\ MICHAEL MILLER OF COUNSEL GARY W. BECKER. ST. PAUL. MINNESOTA 55101-1197 MELVIN J. SILVER TIMUfHY J, HASSETIt - MICHAEL T. OBERLE (612) 291~8955 FAX NO. (612) 228-1753 June 15, 1992 Arden Hills City Council City of Arden Hills 1450 West Highway 96 Arden Hills, MN 55112 RE: Foster Tennis Facility City File No. 90-9 Our File No. 10460/900004 Dear Mayor Sather and Members of the City Council: I have reviewed the City's Development Regulations and the City's file regarding the Foster application for a site plan review. The City Council approved the Foster site plan on December 10, 1990, and required that six conditions be satisfied before the building permit could be issued by the Building Inspector. As far . as I can determine, five of the six conditions remain unsatisfied. By correspondence dated December 15, 1991, Mr. Foster requested that the site plan approval be extended so that he could have more time to line up financing for the project. The status of the Foster site plan was reviewed by the City Council on December 30, 1991. The item appeared on the Council's Consent Agenda and the Council Minutes for this meeting simply indicates that the Council received "information on the expiration of permits for approved Planning Commission proj ects" . The Council Agenda for December 30, 1991, included a memo from Mr. Berg1ey which indicated that the Foster site plan approval had expired on December 10, 1991. Consequently, no action was taken on this item by the City Council. Section VIII(E)(7) of the Arden Hills Code is entitled "Expiration of Building Permit Approval" and reads as follows: Building permit approval shall automatically expire and become void one year from and after the date on which the Council granted such approval if the building permit has not been issued by the Building Inspector. Council may extend the expiration date of such permit approval for an additional period, not to exceed six months, upon written application by the person to whom the permit approval was granted. . - ~ Arden Hills City Council . June 15, 1992 Page 2 Although this section appears to address the expiration of building permits, when it is read in the context of the remaining provisions of Section VIII(E), it seems to have more clearly been intended to address the expiration of site plan approvals. In my judgment, the provisions of Section VIII(E)(7) mean that site plan approvals will expire within one year of the date of approval if a building permit has not been issued within that time or if the applicant has not requested an extension of the site plan approval within one year of the date of the original site plan approval. This is the meaning that was given to Section VIII(E)(7) by City Staff and is the reason why Mr. Foster was asked to re-app1y. Mr. Foster's attorney has suggested that his client has acquired a vested right in the issuance of a building permit because his client has incurred substantial costs in reliance upon Ci ty Council approval. In analyzing claims made upon a vested right theory, it is important to understand specifically how much cost has been incurred in reliance upon City action. I had anticipated receipt of a detailed Affidavit by Thursday afternoon which identified the costs incurred by Mr. Foster. As of 2:00 p.m. today, I have not received such an Affidavit. Therefore, it becomes more difficult to provide the City with specific legal . advice. A right becomes vested when it has arisen upon a contract or a transaction in the nature of a contract and liabilities under that right have been so far determined that nothing remains to be done by the party asserting the right. Ridgewood Development Company v. State, 294 N.W.2d 288 (Minn. 1980) , There are circumstances in which a property owner who has been issued a building permit may acquire a vested right to complete the construction of a project. In general, the Minnesota Supreme Court has stated: l. A building permit may not be arbitrarily revoked where the owner has incurred substantial expense in reliance on the permit. Kiges v. City of st. Paul, 62 N.W.2d 363 (Minn. 1953) . It may be possible to expand this doctrine to inClude circumstances involving only the approval of a site plan, However, as of this date, I have not found any cases to support this broader interpretation. 2. The granting of a building permit does not preclude the adoption of new zoning regulations which prohibit the erection of a building if the new zoning regulations are adopted to protect the health, safety and welfare of the community. Kiges, supra. As applied to our case, this rule would require the City to review the planning . process which has occurred to date and determine if the - . Arden Hills City Council . June l5, 1992 Page 3 proposed changes to the City's zoning regulations are being considered to protect the health, safety and/or welfare of the community. I have not been part of the Planning Commission discussions regarding changes to the City's regulations which would apply to the Foster property. Ultimately, any Court which is asked to review the City Council's decision will try to determine if the City Council acted in a reasonable manner. I think it is important that the conditions for issuing the building permit have not been satisfied; that the applicant has not requested a change in the conditions; that the building permit has not been issued; and that the applicant has not provided the City with an accurate account of construction related costs which have been incurred to date. If the proposed changes to the City's development regulations are to protect the health, safety and welfare of the community and if no other information is submitted relating to construction related costs, it would be my opinion that the City could successfully argue that Mr. Foster has not acquired any vested rights which would obligate the City to issue a building permit. . Very truly yours, dJ; &'.....- Filla JPF:bap . co"'''' M"""'[! ~(Zj DATE PAGE --" '"''''' , (J ~ DISCUSSION: ~ - Moved: JIMYOR COUNCILMBR: (HICKS:) -. (MALONE) (MAHOWALD) Seconded: .(MAYOR COUNCILMllR: (HICKS') (MALONE) (MAHOWALD) THAT COUNC L: VOTE: AYES: Hicks." Malone Sa ther Malone Sather Growe Mahowald Growe Mahowald ABSTAIN: TOTAL: ( - - ) . ~ _" I Malone Sather Growe Mahowald Ayes Nays Abs. r---.~ ALSO PRESENT: C1k/Administrator Attorney Engineer ~~~P Dep. C1k . , ZJ )1.---- - . Z r . / ~ &d. ~ ----. ~~ ,,/'""') I , ' kf0 Ujr-~/' . \ , . .. /..\..-..!.....,.,-_. . . -. , CJ:TY OF ARDEN HILLS . MEMCIlANOOM DATE: J\me 12, 1992 'IO: Mayor and city Council j FRCM: Catherine J. raga, 1\Cting Clerk 1Idmi.nistrator C ~: Developnent 1\greements for Jim casserly Attached are development agreements between Jotm Arkell, The cottages, and the cammunities of cottage Grove and North st. Paul. Please bring the materials from Jim Casserly dated May 27, 1992, which were included with the May 29 intornational packet. Mr. Casserly will be present at the worksession meeting to discuss this matter and to answer any questions. CTI/ts M92-189 . . ,_,....... ""-- "_'___'---' ._......J'-,"-- '~'I I~'._'L-.I "'.1......- I . "_'0...--,,--, .. " " ~.... , , -~ ~ . ~'- '--"- _..- - -- .' r Casserly Molzahn & Associates, Inc. . 215 South 11th Street, Suite 300 . Minneapolis -. M-I~nesota 55';03."~--~-~~-~---~~~"'-;b ,ll([w,---,--~.~ Office (612) 342-2277 . Fax (612) ~~ 334~3382 )~I 'In /qZ/i 7-\... FACSIMILE MESSAGE DATE May 28, 1992 PLEASE DELIVER THE FOr.LOWING PAGES IMMEDIATELY, ----- TO C ~ \' ).. j J...., A f C:l LOCATION city of Arden Hills FAX NUMBER 633-7839 ~ NUMBER OF PAGES SENT (INCLUDING THIS PAGE) 6 -~-~----------------~------------------~ ------------------~-----~~--~-~--------- FROM JAMES R , CASSERLY TELEPHONE NUMBER 612~342~2279 FAX NUMBER 612-334-3382 IF YOU DO NOT RECEIVE ALL PAGES OR IF THERE IS A PROBLEM WITH THE TRANSMISSION, PLEASE CALL AS SOON AS POSSIBLE, . Jb.- oLjY: ~ c "'>VI) (.)~ ~ ~ . j-" ~ ~ ~ NM ~J ~ J ""j.J ~ Jh~~ ~ ~ ~ ~A-~ ;J .,:. r ~6 - J I () 1 ' Gv.-- I-t ~ ~ - r'~ ~ ~ ()~ C'.Lc:..~-'-""':L_''-t "_L.__"_''::;'" ".~, .--'----~, ~~" .---- " . . DRAFT MEMORANDUM TO: City of Arden Hills Attention: Mayor Council Members FROM: .:Tames R. C3sserly Mary E, Molzahn DATE: May 27, 1992 RE: Low Income Senior Housing Project Proposed by cottage Lifestyles, Inc. and John Arkell ::=~~=~=~~=:~-~~~=~=-~===~~=~=~~~~~===~~ . INTRODUCTION Cottage Lifestyles, Inc. ,md John Arkell (the "Developer") are proposing to construct a low income senior housing project (the "project"Y. The project would be located on the Milton property near the intersection of 35W and County Road E2. It would consist of 90 units with rents ranging from $385 for a one bedroom unit to $495 for a three bedroom unit. Garage rentals would range from $25 to $40 per month. In preparing this memo we spoke with Terry McNellis, an investment banker with piper Jaffray, Bob Gatti, the City Manager for the City of North st. Paul, and David Johnson of the Minnesota Department or Finance. . We reviewed the rent schedule, construction casts, application of funds and a pro forma prepared by the Developer. The Developer - b:l2-....::.,..2,..:.j.-._-:,.....:,t:...;:;~ '._.r-i_='.=,~_I.,..L_ 1 , "_'~ needs City approval for the issuance of tax exempt bonds, the . creation of a tax increment district and pledge of tax increment revenues. THE SUBSIDY The above described rents are achievable due to the following subsidies; 1 . Tax Exempt Bonds. The income restrictions and the mix of the units make the project eligible for tax exempt financing. A project of this type needs a bond allocation from the state of Minnesota. The congressional authorization for this type of program is expiring June 30, 1992. It does not appear that the program will be reauthorized before the end of June or possibly even this year. However, the state of Minnesota is planning to reserve $30 million of its existing 1992 allocation for low income multi-family housing projects. This project would qualify but it . would have to compete with other projects in the pool. The availability of this program needs to be monitored from month to month, if not week to week. AS of the date of this memo, it would appear that an allocation would be available. The effect of using tax exempt bonds is to lower the interest rate on the mortgage, AS you done previously, the City would act as a conduit in this bond issue and would not be responsible for the .payment of the debt. 2. Tax credits. The project will also qualify for the use of tax credits which are sold to investors. (Essentially the investors are paying the present value, substantially discounted, of credits against future taxes.) It is the sale of the tax credits that provides a necessary reserve for the Project as well as the Developer's equity. 3, Real Estate property Taxes. The project qualifies for reduced real estate taxes which are approximately one- third less than a non-qualifying project. The reduced real estate taxes provide an increased cash flow which, in turn, allows for a higher mortgage and better debt service coverage. . 2 . '-'..J.. =- "_'~'--' '-'~"_'''-- ,_", '"_'~"'--' -'.___ . , ,.-,,--,--, .. " .. - -. . . --- 4. Tax Increment Financing, The Project would qualify as . a housing district under the Tax Increment Act and the Developer is requesting 90% of the tax increment generated over 15 years (13 tax increment years). The tax increment would most likely be assigned to the trustee of the bonds. As in 3 above, utilizing the tax increment enhances the cash flow which allows for a larger mortgage and a better debt service coverage. MUNICIPAL CONCERNS Several municipal concerns which must be addressed include the following: 1. Seniors Only Project. The City is providing the assistance and forgoing the receipt of property taxes for 13 years and reduced taxes thereafter in order to provide affordable housing to lower income seniors. The City must have assurances that the Project will be maintained for that purpose. One of the earlier Cottage Lifestyle projects in stillwater apparently did not have that restriction and reportedly some younger families are renting in that project. we can probably require various . restrictions or covenants in the deed and in the authorization for the issuance of bonds. The pledge of tax increment and the redevelopment contract can all be approved with various conditions and restrictions, Some further discussion on this point is necessary. 2. Quality Control. The construction cost per unit is $35,000, while the overall project cost per unit is .$48,889. These are modest per unit costs and the City must assure itself that it will be authorizing a well constructed unit. The project that would be the most similar to the one proposed for Arden Hills is in North St. Paul, which we understand is the most recently completed Cottages project. The City of North st. Paul was positive about the Developer and only a few changes were required in the construction plans, 3. Tax Increment penalties. with the 1990 amendments to the Tax Increment 'Act, cities are penalized when they create tax increment districts by having their Local Government Aid and Homestead Credit Aid reduced by the state. It is our understanding that Arden Hills does not receive either one of these aids and as a result there would be no deduction, However, we must continue . to be aware of the potential problem and design our documents accordingly. 3 612-334-33<:::2 CASSERL '/r'"1C)LZAHHFL 1 r., I ':::::':.L '::;I r"l::::.i,_I/ I:::...I;~. I ,,-, ( 0:::...'_' -. ..........- . 4. project Manager. The City has an interest in how the Project will be managed since it will be a seniors only project. There should be additional discussion with the Developer on the qualifications of a project manager. S , Future Project use. The City must understand that the project will probably only provide low income rents during the period required for the use of tax credits, the tax exempt bonds and the lower real estate taxes. We must assume that at the end of the qualification periods, the Project would then become a market rate project. Part of the problem of using real estate taxes to subsidize rents is that you continue to need those real estate taxes for subsidy unless other programs become available. However, if the Project is well constructed and well managed, then the City is getting an attractive asset which provides affordable housing for 15 to 20 years to a segment of the population which needs housing options, DEVELOPER REOUEST . With regard to the financial considerations of the Project, the Developer is making two requests: 1 . That the City will authorize the issuance of tax exempt bonds, 2. That the City will establish a tax increment district, . approve a redevelopment contract, issue a limited revenue note (or in the alternative establish an interest reduction program which has the same effect) and pledge the tax increment accordingly. CONCLUSION The combination of subsidies allows the Cottage concept to work successfully, If the City so chooses it could give concept approval to the Developer's request assuming satisfactory solutions to the municipal concerns. With that concept approval . the Develop~r could proceed to request an allocation from the 4 -"--- _, ,_'_~, ..~ , . ,"-'_'--, " " " '-- ~ I 1 I -~~ . __......... '--"'-' '" I , '--'-' ~- ~- --- <- - , . state for tax exempt financing and attempt to put the Project . together. The Developer has suggested using Mary Ippel of Briggs and Morgan as bond counsel. She is familiar with these projects, has assisted in similar financings and would be an excellent choice. We assume your City Attorney regularly handles any land use, zoning and permitting issues. The one issue we would like to address with him is the form of covenant or restriction that would be placed on the land to maintain it as a seniors only multi-family residential project. As we have done previously, we would modify your Development Program, establish a tax increment district, prepare the redevelopment or interest rate reduction . agreement and work with the City Attorney to ensure that there is no exposure to the City from the sale of the tax exempt bonds or tax credits, Also, as in the past, once the Developer wishes to proceed you have customarily requested a $2,500 deposit to defray City experi1'ies. We recommend that you adhere to your established pOlicy. Please contact us if there are any additional questions or problems. JRC,MEM/db . 5 i I ? . )i./i .I C . DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF NORTH ST. PAUL, MINNESOTA ~ AND COTTAGES OF NORTH ST. PAUL LIMITED PARTNERSHIP - This document was drafted by: CASWELL AND ASSOCIATES, P.A. 6070 50th Street North . Oaktlale, M~ 55128 , . C TABLE OF CONTENTS . Pa..e Introduction ~ . . . . . . . . . . . . . . . . . . . . . . . . , . . , . . I . . . . . . 1 Artic Ie I Definitions .. '. . . .. . . . ..... ... ....... . I... 3 Section 1.1. Definitions . . . . I . . . . . . . . . . . . . . . . . . . . 3 ARTICLE II Representations and Warranties . . . . ..... . . .'. .. 5 - Section 2.1. Representations by the City ........ . .... 5 Section 2.2. Representations and Warranties by the Developer .. . . . . ... . .. I ..... . . . .. .. 5 ARTICLE III Construction of Minimum Improvements ...... .... 6 Section 3.1. Construction of Minimum Improvements . . . . . . 6 Section 3.2. Construction Plans .... . . ... .... . , ... t 6 Section 3.3. Commencement and Completion of Construction . . . ... .. . .. . .... . ...... 7 Section 3.4. Certificate of Completion . ... .... ..... .. 8 \.j ARTICLE IV Insurance . .. '. . . . . . .. .......... ....... 9 9. Section 4.1. Insurance . . . . . . .... ..., I..... . ,... ARTICLE V Tax Increment . . . .... . . .... . . I...... . . .... 12 Section 5.1. Real Propert}' Taxes . . . ...... . . . .... 12 Section 5.2. Assessment Agreement . . . . . . . . ... . .... 12 Section 5.3. Tax Increment . .. .. ...... .... . . ..... 12 Section 5.4. Failure to Pay Real Estate Taxes .... . , . '" 13 Section 5.5. Sale or Transfer of Tax Increment . . . . . . . . . 13 ARTICLE VI Financinst . . . . . . . . .. ... . . . .... . . . . ... 14 Section 6.1. Financing , . ... . ... .. .... .... 14 Section 6.2. Equity Funds . . . . .... .... . . ... .. 14 Section 6,3. Revenue Bonds . . . . , . .. "'" . . ,.. 14 Section 6.4. Copy of Notice of Default to Mortgagee . . . . . . 14 Section 6.5. Mortgagee's Option to Cure Defaults. . . . . . . . 14 ARTICLE VII Prohibitions A,;/ainst Assi,;/nment and Trsnsfer . .... 16 Section 7.1. Representation as to Development .,. . . .. " 16 Section 7.2. Prohibition Against Transfer of Property and Assignment of Agreement , , . . , " . . . . ... 16 Sertion 7.3. Prohibition Against Transfer of " Partnership Interests . . , " 18 . .- ....., ., ... Section 7.4. Approvals .. .. . . ,......,.,.... . . ... 18 1 L ARTICLE \'III Events of Default . .. . . . . . . . . . . 19 . Section 8.1. Events of Default Defined . . . . .. . . " . . 19 Section 8.2. Remedies on Default '. .. . . . . . . . . 20 Sec tion 8.3. No Remedy Exclusive . . ... . .. .. .. . . .. . 20 Section 8.4. No Additional Waiver Implied by One Waiver . . 20 ARTICLB IX Additional Provisions . . . . . . . . . . . . . . . . . . . . . . , 21 Section 9,1. Conflict of Interests; City Representatives No Individually Liable . . . ... .. . '" .. .. 21 Section 9.2. Equal Employment Opportunity ... . . , 21 Section 9.3. Restrictions on Use . . . , . ........ . . ,... 21 Section 9.4. Titles of Articles and Sections. ... .. .... . 21 Section 9.5. Notices and Demands ... ....... . . ..... . 21 Section 9.6. COllnterparts . .. .................. I . 22 Section 9. i. Modification . . ..... . . ...... .... .... 22 Section 9.8. Law Governing .... . . . . ... .. . .. . . .... 22 Section 9.9. Legal Opinions ... . . . . . .... '" . ..... 22 Section 9.10. City Approvals .. .. . . . ......... . ,.. . 22 Section 9.11. Termination . . . . . . . . ... ..... o . .. . . 22 TESTINONIUI-I SIGNATURES SCHEDULE A: Description of Development Property . SCHEDULE B: Assessment Agreement and Assessor's Certification _. -- ----- ---- r C DEVELOPMENT AGREEMENT . .<r l."!."L THIS AGREEMENT, made as of the I"" day of , 1990, by and between The City of North St. Paul (the "City") I a municipal corporation of the State of Minnesota, and Cottages of North St. Paul Limited Partnership, a Minnesota Limited Partner- ship, ( the "Developer"). WITNESSETH: WHEREAS, the City is a city organized and existing pursuant to the Constitution and laws of the State of Minnesota and is governed by the Council of the City; and WHEREAS, pursuant to, Minnesota Statutes, Section 469.125 to 469.134, as amended, the Council is authorized to establish development districts in order to provide for the development of the City; and WHEREAS, pursuant to Minnesota Statutes, Sections 469.174 through 469.179, as amended, the Council is authorized to finance the capital and administration costs of a development district with tax increment revenues derived from a tax increment financing district established within such development district; and ~- WHEREAS, the Council of the City has established a development. program (the "Program); and WHEREAS, in connection with the Program the Council of the City has established a development district ( the "Development District") and a tax increment financing district (the "Tax Increment District"); and WHEREAS, in connection with the creation of the Development District and the Tax Increment District the Council of the City has prepared and approved a tax increment financing plan and a development district plan (the "Plan") ; and WHEREAS, the major objectives of the Council in establishing the Development District are to: remove, prevent, or reduce blight, blighting factors, causes of blight, or the spread of blight and deterioration; to eliminate unhealthful, unsafe, and unsanitary structures and conditions; reduce traffic hazards; provide land for needed public streets, utilities, and facil i ties; remove incom- patible land use, eliminate obsolete or detrimental uses; and assemble land for development; and \- . 1 , (,. . WHEREAS, in order to achieve the objectives of the Program the City is prepared to acquire certain real property located in the District (such real property is. more particularly descri bed in Exhibit A to this Agreement) and to convey such real property to the Developer for development in accordance with the Program and this Agreement; and WHEREAS, in order to achieve the foregoing the City has determined to provide substantial aid and assistance through the sale of Revenue Bonds and the contribution of federal, state, regional and local funds; and WHEREAS, the City believes that the development of the Development District pursuant to this Agreement, and fulfillment generally of the terms of this Agreement, are in the vital and best interests of the City and the health, safety, morals and welfare of its residents, and in accord with the public purposes and provisions of applicable federal, state and local laws under which the Program is being undertaken and assisted; NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: . - . 2 m r "f' \.... ARTICLE I . Definitions Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears from the context: "Act" means the City Development Districts Act, Minnesota Statutes, Sections 469.125 ~ seq.. as amended. "Agreement" means this Agreement, as the same may be from time to time modified, amended, ur supplemented. ,- "Assessor's Minimum Market Value" means the agreed minimum market value of real property as determined by the county assessor pursuant to the assessment Agreement. "Assessment Agreement" means the agreement, substantially in the form of the agreement contained in Exhibit B attached to and made a part of this Agreement, among the Developer, the City, an the city assessor of the City, entered into pursuant to Section 5.2 of this Agreement. "Certificate of Completion" means the certification, in the form of the certificate contained in Exhibit C attached to and made i a part of this Agreement, provided to the Developer, or the ' purchaser of any part, parcel or unit of the Development property,. pursuant to Section 3.4 of this Agreement. "City" means the City of North St. Paul. "Construction Plans" means the plans, specifications, drawings and related documents on the construction work to be performed by the Developer on the Development Property which (a) shall be as detailed as the plans, specifications, drawings and related documents which are submitted to the building inspector of the City, and (b) shall include at least the following for each bUilding: (1) site plan; (2) foundation plan; (3) basement plans; (4) floor plan for each floor; (5) cross sections of each (length and width); (6) elevations (all sides); (7) facade and landscape plan; and (8) such other plans or suppleme.nts to the foregoing plans as the City may reasonably request. "County" means the County of Ramsey. "Development District" means the real property located within Development District Number 2 created by the City, a description of which is attached hereto as Exhibit A, "Event of Default" means an action by the Developer described in Section 8.1 of this Agreement. . 3 i "Minimum Improvements" means a 94-unit elderly residential fac i lHy which is to be constructed by the Developer on the Development Property. "Net Proceeds" means any proceeds paid by an insurer to the Developer or the City under a policy or policies of insurance required to be provided and maintained by the Developer pursuant to Article V of this Agreement and remaining after deducting all expenses (including fees and disbursements of counsel) incurred in the collection of such proceeds. "Plan'1 means the tax increment financing plan and the development district plan created in connection with the Program and the Development District. IIProgram " means the development program approved by the City in connection with the creation of the Development District, as it may be amended or modified. "Developer" means Cottages of North St. Paul Limited Partner- ship, a Minnesota Limited Partnership. "Development Property" means the real property described in Schedule A of this Agreement. . "Revenue Bonds" means the $4,650,000.00 North St. Paul Multifamily Housing Revenue Bonds (Cottages of North St. Paul, a Minnesota Limited Partnership Project) Series 1990. 11State" means the State of Minnesota. "Tax Inc rement 11 means that portion of the real property taxes which is remitted to the City as a tax increment pursuant to the Tax Increment Act. ttTax Increment District" means the tax increment district created by the Council in connection with the Development District. "Tax Official" means any City or county assessor; County auditor; City, County or State board of equalization, the commis- si()ner or revenue of the State, or any Sta..t.e or federal district court, the tax court of the State, or the State Supreme Court. "Termination Date" means December 30, 2003, or such earlier date as may occur if termination occurs as provided herein. "Unavoidable Delays" means delays which are the direct result of strikes, other labor troubles, fire or other casualty to the Minimum Improvements, litigation commenced by third parties which, by injunction or other similar judicial action, directly results . ill delays., or acts of any "ederal, state or local governmental unit (other than then City) wh , directly result in delays. 4 -- C ARTICLE II . Representations and Warranties Section 2.1. Representations bv the City. The City makes the following representations as the basis for the undertaking on its part herein contained: (a) The City is a statutory city of the State with all the powers of a statutory city duly organized and existing under the laws of the State. Under the provisions of the Act, the City has the power to enter into this Agreement and carry out it.s obliga- tions hereunde1': (b) The City has created, adopted and approved and Develop- ment District in accordance with the terms of the Act. (c) The City has created, adopt.ed, certified, and approved the Tax Increment District pursuant to the Tax Increment Act. (d) The City proposes to pledge the tax increment.s generated by the Tax Increment District to reimburse the Developer and for expenses in accordance with the plan. ( e) The Minimum Improvements will be an allowed use under the \. zoning ordinance of the city. . Section 2.2. Representations and Warranties bv the Developer. The Developer represents and warrants that: ( a) The Developer will construct, operate and maintain the Minimum Improvements in accordance with the terms of this Agree- ment I the Development Plan and all local, state and federal laws and regulations (including, but not limited to, environmental, zoning, build ing code and public health laws and regulations), except for variances necessary to construct the improvements contemplated in the Construction Plans approved by the City. ( b) The Minimum Improvements shall have a Market Value of at least $3,566,991. (c) The Developer agrees that it will indemnify, defend, and hold harmless the City, its governing body members, officers, employees. agents and contractors, from any and all claims or causes of action, of whatsoever nature, arising or purportedly arising out of the actions of the Developer, its officers, employees, agents or contractors in connection with the Agreement or the construction, installation, ownership or operation of the Minimum Improvements. ~ . 5 ,:lo!i"" ~ ARTICLE III 4It Construction of Minimum Improvements Section 3,1, Construction of Minimum Improvements. The Developer agrees that it will construct the Minimum Improvements on the Development Property in accordance with the approved Construction Plans and at all times prior to the Maturity Date will operate and maintain, preserve and keep the Minimum Improvements or cause the Minimum Improvements to be maintained, preserved and kept with the appurtenances and every part and parcel thereof, in good repair and condition. Section 3.2. Construction Plans. (a) The Developer has submitted to the City "Preliminary Plans," consisting of floor plans and sketches of the exterior and interior of the proposed Minimum Improvements which illustrate the size and character of the proposed improvements. The Preliminary Plans are not inconsistent with the Program, this Agreement and all applicable state and local laws and regulations, insofar as said consistency may be determined at said preliminary stage. Said preliminary plans shall be approved or rejected (in whole or in part) in writing by the City within twenty (20) days after the date of this Agreement. If no written rejection is made within said twenty (20) days, the I Preliminary Plans shall be deemed approved by the City. Any . rejection shall set forth in detail the reasons therefor. If the Ci ty rejects the Prel iminary Plans, in whole or in part, the Developer may submit new or corrected Preliminary Plans at any time after receipt by the Developer of the notice of rejection. The City's approval of the Preliminary Plans shall not be unreasonably withheld. (b) At any time after execution of this Agreement, but in any event no later than sixty (60) days after the date of the Agree- ment, the Developer shall submit Construction Plans to the City. The Construction Plans shall provide for the construction of the Minimum Improvements and shall be in conformity with the Program, this Agreement, the Preliminary Plans, and all applicable state and local laws and regulations. The City shall approve the Construc- tion Plans in writing if, in the sole disc~tion of the City: (a) the Construction Plans conform to the terms and conditions of this Agreement; (b) the Construction Plans conform to the goals and objectives of the Program; (c) the Construction Plans conform to all applicable federal, State and local laws, ordinances, rules and regulations; (d) 'the Construction Plans are adequate to provide for the construction of the Minimum Improvements; (e) the Construction Plans do not provide for expenditures in excess of the funds available to the Developer for the construction of the Minimum Improvements; (f) the des ign 0 f the Minimum Improvements and the facade and landscaping plans provide for a facility which is not .. inconsistent with the aesthetic character of the Program; and (g) 6 C no Event of Default has occurred. No approval by the City shall re 1 ieve the Developer of the obligation to _comply with the term. of this Agreement I the terms of the Program, applicable federal, state and local laws, ordinances, rules and regulations, or to construct the Minimum Improvements, No approval by the City shall constitute a waiver of an Event of Default. Such Construction Plans shall , in any event, be deemed approved unless rejected in writing by the City, in whole or in part. Such rejection shall set forth in detail the reasons therefor, and shall be made within twenty (20 ) days after the date of their receipt by the City. If the City rejects the Construction Plans in whole or in part, the Devp.loper shall submit new or corrected Constructions Plans within sixty (60) days-after written notification to the Developer of the rejection. The provisions of the Section relating to approval, rejection and resubmission or co rrec ted Construction Plans shall continue to apply until the Construction Plans have been approved b>' the City. The City's approval shall not be unreasonl!-bly withheld. Said approval shall constitute a conclusive determina- tion that the Construction Plans (and the Minimum Improvements, if constructed in accordance with said plans) comply to the City's satisfaction with the provisions of this Agreement relating thereto. The Construction Plans shall not be rejected due to any objection which could have been raised upon review of the Prelimi- nary plans and corrected more economically at that time. (c) If the Developer desires to make any change in the Preliminary Plans or Construction Plans after their approval by the. C~ty, the Developer shall submit the proposed change to the City for its approval. If the Preliminary Plans or Construction Plans, as modified by the proposed change, conform to the requirements of this Section 3.2 of this Agreement with respect to such previously approved Construction Plans, the City shall approve the proposed change and notify the Developer in writing of its approval. Such change in the Preliminary Plans or Construction Plans shall, in any event, be deemed approved by the City unless rejected, in whole or in part, by written notice by the City to the Developer, setting forth in detail the reasons therefor. Such rejection shall be made within ten ( 10) days after receipt of the notice of such change. Section 3.3. Commencement and Completion of Construction. The Developer shall commence construction of the Minimum Improve- ments on July 30, 1990, or on such other date as the parties shall mutually agree, The Developer shall substantially complete the construction of the Minimum Improvements by December 31, 1990 subject to mutual agreement in wri ting to extend signed by all parties and to unavoidable delays not caused by Developer. All work with respect to the Minimum Improvements to be constructed or provided by the Developer on the Development Property shall be in conformity with the Preliminary Plans and Construction Plans as submitted by the Developer and approved by the Ci t:<'. i . 7 ~....... "-'" 'I I..~.l .. <~.;;. ..... f":... - :::-~ ,::~ .i~.:2:= ~ ~ The Developer agree. for it.elf, it. .uccessors and assigns, and every ...,- successor in intarest to the Development Property, or eny part thareot, that the Developer, and euch auccaSlon and 19s1gns .hall promptly begin and diligently prosecute to completion the developmant. ot tha Development Property through tha construction of the Minimum Improvemant. thareon, and thet such con.truction .hall in any event be commin.:tad and completad OIi thin the period .pecified in this Section 3.3 of this Agr.ament. Section 3.4, CertiHcau of Complation. eel Promptly afUr completion of the kinimum Improvaments in accordance OIith the ConStruction Plana the City will furnish the Developer With en appropriate inatrument ao certitying. Such certification by tha City ehall be . concluaiva determination of aati.faction and termination of the agreement a and covenant. in the Agraemant with reapact to the obligations of the Developar, and its auccessors and aSSigns, to construct the Minimum Improvements and the dates for the bag inning and complation thereof. Such certification and such detarminetion shall not conatitute evidence ot compliance with or aatisfaction of eny obligation of the Developer to any Elolder ot a Mortgage, or any insurer of a Mortgaga, IIcurin&: monay loaned to financa the Minimum Improvement., or any part thereot. (bl The Certificate provided for in this Section 3.4 of thi. Agreement .hall be in such torm as will enable lt to be recorcled in tha proper office tor the recordatlon of deeds end othsr instruments psrtainlQj to the Development Property. If the City ahall refuae or f.il to provide any certification 1n accordance with the provisions of this Section 3.4 of this Agreemant, the City .hall, within thirty .(30) days after written request by the Developer, provide the Developer . with a written statement, indicating in adequaee dstail in what rupects the Developer haa failed to complate the M1nimum Improvements in accordance w1th ths provisions of the Agr.sment, or i. otherwiae in default, and what measures or acta 1 t will be necessary, in the op tnion of the C1 ty, for th. Developer to take or perfor~ in order to obtain such cartificat10n. (c) The con. truction of tha Minimum Improvement. shall be deemed to b. completed when such Minimum Improvements are aubstantially completed, Which shall be at such time as a Certif1cate of Sub.untia1 completion 11 iuued by the Project Arch1tect and concurrad in by the contractor, owner and City 1n accordance with the ~ppTove~ plaoa and apacificationa. - . 8. C ARTICLE IV Insurance . Section 4.1. Insurance. (a) The Developer will provide and maintain at all times during the process of constructing the Minimum Improvements and, from time to time at the request of the Administrator, furnish the Administrator with proof of payment of premiums on: (i) Builder's risk insurance, written on the so-called "Builder's Risk -- Completed Value Basis," in an amount equal to one hunared percent ( 100") of the insurable value of the Minimum Improvements at the date of completion, and with coverage available in nonreporting form on the so-called "all risk" form of policy. (ii) Comprehens i ve general 1 iabil i ty insurance (including operations, contingent liability, operations of subcontrac- tors, completed operations and contractual liability in- surance) together with an Owner's Contractor's Policy with limits against bodily injury and property damage of not less than $1,000,000.00 for each occurrence (to accomplish the above required limits, an umbrella excess liability policy may be used) . ~ (iii) Worker's compensation insurance, with statutory. coverage. The policies of insurance required pursuant to clauses (i) and (ii) above shall be in form and content satisfactory to the Ad- ministrator and shall be placed with financially sound and reputable insurers licensed to transact business in the State. The policy of insurance delivered pursuant to clause (i) above shall contain an agreement of the insurer to give not less than thirty (30 ) days' advance written notice to the Administrator in the event of cancellation of such policy or change affecting the coverage thereunder. (b) Upon completion of construction of the Minimum Improve- ments and prior to the Maturity Date, the Developer shall maintain, or cause to be maintained, at its cost and expense, and from time to time at the request of the Administrator shall furnish proof of the payment of premiums on, insurance as follows: (i) Insurance against loss and/or damage to the Minimum Improvements under a policy or policies covering such risks as are ordinarily insured against by similar businessesl including (without limiting the generality of the foregoing) fi re, extended coverage, vandalism and malicious mischie f, boiler explosion, water damage, demolition cost, debris \ removal, collapse and flood in an amount not lesll than the . 9 , ~y"". ~ full insurable replacement value of the Minimum Improvements, . but any such policy may have a deductible amount of not more than $25,000. no policy of insurance shall be so written that the proceeds thereof will produce less than the minimum coverage required by the preceding sentence, by reason of co- insurance provisions or otherwise, without the prior consent thereto in writing by the Administrator. The term "full insurable replacement value" shall mean the actual replacement cost of the Minimum Improvements (excluding foundation and excavation costs and costs of underground flues, pipes, drains and other uninsurable items) and equipment. (ii) Comprehensive general public liability insurance I including personal injury liability (with employee exclusion deleted), and automobile insurance, including owned, non-owned and hired automobiles, against liability for injuries to persons and/or property, in the minimum amount for each occurrence and for each year of $1,000,000.00, for pub 1 ic liability not arising from ownership or operation of automobi- les (or other motor vehicles), and in the minimum amount of $300,000 for each occurrence and for each year for liability arising out of ownership or operation of automobiles. (iii) Such other insurance, including worker's compensa- tion insurance respecting all employees of the Developer < engaged in work with respect to the construction of the .. Minimum Improvements, in such amount as is customarily carried by like organizations engaged in like activities of comparable size and liability exposure; provided that the Developer may be self-insured with respect to all or any part of its liability for worker's compensation. (c) All insurance required in Article IV of this Agreement shall be taken out and maintained in responsible insurance companies selected by the Developer which are authorized under the laws of the State to assume the risks covered thereby. The Developer will deposit annually with the Administrator policies evidenCing all such insurance, or a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. ~ (d) The Developer agrees to notify the Administrator immediately in the case of damage exceeding $50,000 in amount to, or destruction of, the Minimum Improvements or any portion thereof resulting from fire or other casualty. In the event that any such damage does not exceed $ 5 0,000, the Developer will forthwi th repair, reconstruct and restore the Minimum Improvements to substantially the same or an improved condition or value as it existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restora- tion, the Developer will apply the Net Proceeds of any insurance ~ relating to such damage received by the Developer to the payment 10 . C- or reimbursement of the costs thereof. Improvements or any portion thereo~ In the event the Minimum is destroyed by fire or other casualty and the damage or destruc- tion is estimated to equal or exceed $50,000, then the Developer shall within one hundred and twenty ( 120) days after such damage or destruction, proceed forthwith to repair, reconstruct and restore the damaged Minimum Improvements to substantially the same condition or utility value as it existed prior to the event causing such damage or destruction and, to the extent necessary to accomplish such repair, reconstruction and restoration, the Developer will apply the Net Proceeds of any insurance relating to such damage or t'restruction received by the Developer to the payment or reimbursement of the costs thereof. Any Net Proceeds remaining after completion of construction shall be disbursed to the Developer. The Developer shall complete the repair, reconstruction and restoration of the Minimum Improvements, whether or not the~net Proceeds of insurance received by the Developer for such purposes are sufficient to pay for the same. Any Net Proceeds remaining after completion of such repairs, construction and restoration shall be remitted to the Developer. (e) The provisions of this Section are expressly subject to the provisions of the construction lender and trustee mortgages. ~. . , . '- 11 , ~ ARTICLE V Tax Increment Section 5.1. Real Propertv Taxes. ( a) The Developer shall pay when due all real property taxes payable with respect to the Development Property. (b) The Developer ag rees that prior to the Termination Date it will not take any of the following actions to the extent that such actions would result in a reduction in the tax increment generated b)' the Minimum Improvements below the amount of $78,000 in any year: ( 1 ) seek administrative review or judicial review of the applicability of any real estate tax statute determined by any Tax Official to be applicable to the Development Property or Minimum Improvements or raise the inapplicability of any such real estate tax statute as a defense in any proceedings, including delinquent tax proceedings; and (2 ) seek administrative review or judicial review of the constitutionality of any real estate tax statute determined by any Tax Official to be applicable to the Development Property or Minimum Improvements or raise the uncon- stitutionality of any such real estate tax statute as a defense in any proceedings, including delinquent tax proceedings. (c) The Developer further agrees that it will not, prior to . termination date, request the County Assessor to assess the Development Property and the Minimum Improvements on any basis other than as Class 4c residential real estate under Minnesota Statutes, Section 273.13, Subd. 25. Section 5.2. Assessment A~reement. The Developer and the City shall execute the Assessment Agreement, substantially in the form of the Assessment Agreement contained in Schedule B of this Agreement. The Assessment Agreement shall provide that the Assessed Market Value of the Minimum Improvements upon completion of the Minimum Improvements shall be equal to $1,458,153. Section 5.3. Tax Increment. As the tax increment is collected each year, starting in 1992, ten percent (10%) shall be paid to the City to reimburse it for expenses of Administering the Development Program; and ninety percent (90%) shall be paid to the Developer to reimburse it for land acquisitions and site improve- ments up to the amount of $905,000. This $905,000 shall earn interest at the rate of nine percent (9") per annum on the unpaid amount or the interest rate payable on the Revenue Bonds, as noted in Section 6,3 of the Agreement, whichever interest rate is lower. The payment of interest is only payable from the 90" of tax increment available to the Developer or assignee. Payments shall be applied first to interest due and the balance for principal. No tax increment shall be collected or paid after December 30, . 20n3, the termination date. 12 -- , C Section 5.4. Failure to Pav Real Estate Taxes. The City is only obligated to make payments under this Article if and when the'" real estate taxes are paid and Ramsey County delivers the captured tax increment to the City. If - no captured tax increment is rece i ved by the City it is under no obligation to make any payments. Section 5.5. Sale or Transfer of Tax Increment. Tax increments shall only be paid to the owner or owners of the Minimum Improvements, except that upon written instructions, approved by all parties, the tax increments may be paid by the city directly into the debt service fund for the Revenue Bonds, as noted in Section 6.3 of'tnis Agreement. If a default is made on payments on the Revenue Bonds, the city shall have the sole option to pay any or all of the 90% of the tax increments directly into the debt service fund for those bonds. ~- . ; . 13 '" ARTICLE VI . Financinll Section 6.1. Financinll. Within thirty (30 ) days after entering into this Agreement, the Developer shall submit to the City evidence of a commitment for financing sufficient for construction of the Minimum Improvements (taking into account equity monies that will be provided by the Developer). If the City finds that the financing is sufficiently committed, adequate in amount to provide for the construction of the Minimum Improvements, and contains other terms and conditions which are not inconsistent with the objectives and needs of the City, then the City shall notify the Developer in writing of its approval. Such approval shall not be unreasonably withheld and either approval or rejection shall be given within five (5 ) days from the date when the City is provided the evidence of such financing. If the City rejects the evidence of financing as inadequate. it shall do so in writing specifying the basis for the rejection. In any event the Developer shall submit adequate evidence of financing within thirty (30) days after such rejection. Section 6.2. Equity Funds. The Developer shall submit to the City evidence that at least twenty-five percent (25") of the total cost of the project has or will be paid by the Developer and will .- not come from borrowed funds. The 25" equity rate will be reduced to fifteen percent ( 15%) when permanent financing is taken out on the project. For the purpose of this section; the term "equityll shall include all debt service reserves established pursuant to the indenture of trust. Section 6 . 3 . Revenue Bonds. To help this Program, the city has authorized Revenue Bonds to be sold with the proceeds to be paid to the Developer. Section 6.4. COpy of Notice of Default to Mortllallee. Whenever the City shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in its obligations or covenants under the Agreement, the City shall at the same time forward a copy of such n~tice or demand to each Holder of any Mortgage authorized by the Agreement at the last address of such Holder shown in the records of the City. Section 6,5. Mortllallee's Option to Cure Defaults. After any breach or default referred to in Section 8.1 hereof, each such Holder shall (insofar as the rights of the City are concerned) have the right, at its option, to cure or remedy such breach or default (or such breach or default to the extent that it relates to the part of the Development Property covered by its mortgage) and to add the cost thereof to the Mort~a~e debt and the lien of its . Mortgage: Provided, that if the breach or default is ,;ith respect to construction of the Minimum Improvements, nothing contained in 14 C this Section or any other Section of this Agreement shall be deemed to permit or authorize such Holder, either before or after. foreclosure or action in lieu thereof, to undertake or continue the construction Or completion of the Minimum Improvements (beyond the extent nec~ssary to conserve or 'protect Minimum Improvements or construction already made) without first having expreslIly assumed the obligation to the City, by written agreement satisfactory to the Ci ty, to complete, in the manner provided in the Agreement, the Minimum Improvements on the Development Property or the part the reo f to which the lien or title of such Holder relates. Any such Holder who shall properly complete the Minimum Improvements relating to the Development Property or applicable part thereof sha 11 be ent i tJ.ed, upon written request made to the C r-ty, to a certification by the City to such effect in the manner provided in Section 3,4 of this Agreement. If the Holder elects to cure the default, as above stated, it will not be bound by the Developers equity requirements described in Section 6.2 of this Agreement. and further if the Holder completes the Minimum Improvements and the Certificate of Completion is granted, the lender, and any trans- fe ree of the lender (provided the transferee is approved by the City in accordance with Section 7. 2) will continue to receive tax increment assistance as provided in Section 5.3 of this Agreement. \..J . \.... . 15 C ARTICLE VII . Prohibitions A~ainst Assi~nment and Transfer Section 7.1. Representation as to Development. The Developer represents and agrees that its undertakings pursuant to the Agreement are, and w ill be, used for the purpose of development of the Development Property and not for speculation in land holding. The Developer further recognizes that, in view of (a) the impor- tance of the development of the Development Property to the general welfare of the City; (b) the substantial financing and other public aids that. have been made available by the City for the purpose of making such development possible; and (c) the fact that any act or transaction involving or resulting in a significant change in the identity of the parties in control of the Developer or the degree of their control is for practical purposes a transfer or disposi- tion of the property then owned by the Developer, the qualifica- tions and identity of the Developer are of particular concern to the City. The Developer further recognizes that it is because of such qualifications and identity that the City is entering into the Agreement with the Developer, and, in so doing, is further willing to accept and rely on the obligations of the Developer for the faithful performance of all undertakings and covenants hereby by it to be performed. . Section 7.2. Prohibition A~ainst Transfer of Propertv and Assi~nment of A~reement. Also, for the foregoing reasons the Developer represents and agrees that: (a) Except only by way of security for, and only for, the purpose of obtaining financing necessary to enable the Developer or any successor in interest to the Development Property, or any part thereof, to perform its obligations with respect to making the Minimum Improvements under the Agreement, and only if such financing has been approved by the City, the Developer (except as so authorized) has not made or created, and will not make or create, or suffer to be made or created, any total or partial sale, assignment, conveyance, or lease, or any trust or power, or transfer in any other mode or form of or with respect to the Agreement or the Development Property or ~ny part thereof or any interest therein, or any contract or agreement to do any of the same, without the prior written approval of the City, which approval shall not be unreasonably withheld. (b) The City shall be entitled to require as conditions to any such approval that: (i) Any proposed transferee shall have the qualifica- tions and financial responsibility, as determined by the City, necessary and adequate to fulfill the obligations undertaken . in the Agreement by the Developer (or, in the event the transfer is of or relates to part of the Development Property, 16 ff'" L such obligations to the extent that they relate to such part).. (ii) Any proposed transferee, by instrument in writing satisfactory to the City and in form recordable among the land records, shall, for itself and its successors and assigns, and expressly for the benefit of the City, have expressly assumed all of the obligations of the Developer under the Agreement and agreed to be subject to all the conditions and restric- tions to which the Developer is subject (or, in the event the transfer is of or relates to part of the Development Property, such obligations, conditions and restrictions to the extent that they relate to such part) even if the Developer-agrees to continue to fulfill those obligations: Provided, That the fact that any transferee of, or any other successor in interest whatsoever to, the Development Property, or any part thereof, shall, for whatever the reason, not have assumed such obligations or so agreed, shall not (unless and only to- the extent otherwise specifically provided in the Agreement or agreed to in writing by the City) relieve or except such transferee or successor of or from said obligations, condi- tions, or restrictions, or deprive or limit the City of or with respect to any rights or remedies or controls with respect to the Development Property or the construction of the Minimum Improvements; it being the intent of this, together with other provisions of the Agreement, that (to the fullest extent permitted by law and equity and excepting only in the. manner and to the extent spec i fically provided otherwise in the Agreement) no transfer of, or change with respect to, ownership in the Development Property or any part thereof, or any interest therein, however consummated or occurring, and whethe r voluntary or involuntary, shall operate, legally or practically, to deprive or limit the City of or with respect tc any rights or remedies or controls provided in or resulting from the Agreement with respect to the Development Property and the construction of the Minimum Improvements that the City would have had, had there been no such transfer or change. (iii) There shall be submitted to the City for review all instruments and other legal documents involved in effecting transfer; and if approved by the City, its approval shall be indicated to the Developer in writing. In the absence of 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 the Agreement or otherwise with respect to the construction of the Minimum Improvements, from any of its obligations with respect thereto. . 1.7 .c Section 7.3, Prohibition AlOlainst Transfer of Part~rship Interest". Also for the foregoing reasons the Developer represents and agrees that prior to the Termination Date, and without the prior written approval of the City, there shall be no transfer by any general partner of the Developer of its general partnership interests in the Developer. With respect to this provision, the Developer and the parties executing this Agreement on behalf of the Developer represent that they have the authority of all of the existing general partners to agree to this provision on their behalf and to bind them with respect hereto. Section 7.4. Approvals. Any approval required to be given by the City under this Article VII of this Agreement may be denied only in the event that the City reasonably determines that the abil i ty of the Developer to perform its obligations under this Agreement will be materially impaired by the action for which approval is sought. . -. . 18 . L ARTICLE VIII . of Default Events Section 8,1. 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 (unless the context otherwise provides), anyone or more of the following events: (a) Failure by the Developer to pay when due or to provide when required any payments required to be paid or provided under "- this Agreement. (b) Failure by the Developer to provide and maintain any insurance required to be provided and maintained by Section 4.1 of this Agreement or failure by the Developer to reconstruct -the Minimum Improvements when required pursuant to Section 4.1 of this Agreement. (c) Failure by the Developer to submit a commitment for financing to the City in a timely manner pursuant to the terms and conditions of Section 6.1 of this Agreement. (d) Failure by the Developer to commence and complete \ construction of the Minimum Improvements pursuant to the terms, . conditions and limitations of Article III of this Agreement. (e) Failure by the Developer to observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed hereunder. ( f) The Holder of any Mortgage exercises any remedy provided by the Mortgage documents or exercises any remedy provided by law or equity in the event of a default in any of the terms or conditions of the Mortgage, and fails to accept Developer's responsibility hereunder as provided in Section 6.4 of this Agreement, 'g) Failure of the Developer to submit satisfactory Construc- tion Plans in accordance with Section 3.2 of this Agreement. ( h) The Developer or the Developer's general partner: (i) files any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any state or federal bankruptcy law; (ii) makes an assignment for the benefit of its creditors; . 19 .c OiiJ admits in writing its inability to pay its debts generally as they become due; or (iv) is adjudicated bankrupt or insolvent. Section 8,2. Remedies on Default. Whenever any Event of Default referred to In Section 8.1 of this Agreement occurs, the City may take any one or more of the following actions after providing thirty days written notice to the Developer of the Event of Default, but only if the Event of Default has not been cured within said thirty days, or if the Event of Default is incapable of being cured within said thirty days, the Developer does not furnish the City with assurances, reasonably satisfactory to the City, that the Event of Default will be cured and will be cured as soon as reasonably possible: (a) Suspend its performance under the Agreement until it receives assurances from the Developer, deemed adequate by the City, that the Developer will cure its default and continue its performance under the Agreement. (b) Terminate the Agreement. (c) Withhold the Certificate of Completion. . (d) Take whatever action, including legal or administrative action, which may appear necessary or desirable to the City, including any actions to collect any payments due under this Agreement, or to enforce performance and observance of any obligation, agreement, or covenant of the Developer under this Agreement. Section 8.3. No Remedy Exclusive. No remedy here in 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 ~ a waiver the reo f , but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the City or the Developer to exercise any remedy reserved to it, it shall not be necessary to give notice, other than such notice as may be required in this Article VIII, Section 8.4. No Additional Waiver Implied bv One Waiver. In the event any agreement contained in this Agreement should be breached by either party and thereafter waived by the other party, such waiver shall be li~ited to the particular breach so waived and . shall not be- deemed to waive any other concurrent, previous or subsequent breach hereunder. 20 ,r C ARTICLE IX . Additional Provisions Section 9.1. Conflict of Interests: City Representatives Not Individuallv Liable, No member, official, or employee of the City shall have any personal interest, direct or indirect, in the Agreement, nor shall an~' such member, official, or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership, or association in which he is, directly or indirectly, interested. No member, official, or employee of the City shall be "- personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Developer or successor or on any obligations under the terms of the Agreement, except in the case of willful misconduct. Section 9 . 2 . Eoual Emplovment Opportunity. The Developer, for itself and its successors and assigns, agrees that during the construction of the Minimum Improvements provided for in the Agreement it will comply with all non-discrimination and affirma- tive action requirements applicable under any state, federal or local law, ordinance or regulation. \ Section 9.3. Restrictions on Use. The Developer agrees for4lt itself, and its successors and assigns J and every successor in interest to the Development Property, or any part thereof, that the Developer, and such successors and assigns, shall devote the Development Property to, and only to and in accordance with, the uses specified in the Plan and this Agreement, Section 9.4. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 9.5. Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand, or other communication under the Agreement by either party to the 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 ( a) in the case of the Developer, is addrellsed to or delivered personally to the Developer at i and (b) in the case of the City, is addressed to or delivered personally to the City at 2526 E. 7th Avenue, North St. Paul, ~. Minnesota 55109; . 21 \ c . or at such other address with respect to either such party as that party may, from time to time, designate in writing and forward to the other as provided in this Sec tion. Section 9.6. Counterparts. This Agreement is executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 9.7. Modification. If the Developer is requested by the holder of a Mortgage or by a prospective holder of a prospective Mortgage to amend or supplement this Agreement in any manner whatsoever, the City will, in good faith, consider the request with a view to granting the same unless the city, in its reasonable j udgmen t, concludes that such modification is not in the public interest, or will significantly and undesirably weaken the financial securi ty provided to the interests of the City by the terms and provisions of this Agreement. Section 9.8. Law Governing. This Agreement will be governed and construed in accordance with the laws of the State of Minnesota. See tion 9.9 Legal Opinions. Upon execution of this Agreement, each party shall, upon request of the other party, supply the other party with an opinion lof its legal counsel to the effect that this Agreement is legally issued or executed by, and valid and binding upon, such party, and enforceable in accordance with its . terms. Section 9.10. City Approvals. approval, execution of documents, Any or other action to be taken by the City pursuant to this Agreement, for the purpose of carrying out the terms of this Agreement or for the purpose of determining sufficient performance by the Developer under this Agreement, may be made, executed or taken by the Mayor and City Manager without further approval by the City Council. The City Manager may, but shall not be required to, consul t wi th other City staff with respect to such matters. Section 9.11. Termina tion. This Agreement shall remain in effect until the later of the expiration of the tax increment payments of the date the Revenue Bonds have been paid in full, Upon Termination the City shall furnish Developer a document in recordable form that the Agreement has been terminated. _. . 22. ----- c . Section 9.12. Construction Phases. The project may be constructed in Phases, Phase I consisting of 76 Units, and Phase II consisting of 20 Units. Section 9.13 Condemnation. The City shall use condemnation to acquire any and all land use restrictions on the property described in Phase II. All costs and expenses shall be paid by the Developer. The City shall immediately deed the land to the developer upon acquiring Title pursuant to Minn. Stat. 11~~042. .- Section 9.14. Default - Phase II. If the land use restrictions on the property described in Phase II cannot be acquired, then the failure to construct Phase II shall not be a Default of this Agreement. If that happens the minimum improvements described in Section 2. 2(b) shall be changed to $2,750,000 an9 this Agreement shall be so modified. Section 9.15. Modification. A. Section 3.3 is hereby modified to change the date the developer shall commence construction to October 15, 1990 and change substantial completion date to August 31, 1991. B. Section 4.1 (e) is hereby modified by adding the following words before the per iod: " and every mortgage securing financing for the property." C. Section 5.2 is hereby modified to change the figure of $1,458,153 to / . S ~ 1007. of the housing units must have at least. Section 9.16. Senior Housing. one person age 55 or older, except for transition periods of six months or less. ~ . 22A. fi- IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its name and behalf and its seal to be hereunto duly affixed and the Developer has caused this Agreement to be duly executed in its name and behalf on or as of the date first above written. THE CITY OF NORTH ST. PAUL, MINNESOTA By /(U;'?,,{ ~' /: - ,:)j~~, Its ayor And By Alu7"1/ /U/dt: Its City Clerk COTTAGES OF NORTH ST. PAUL LIMITED PARTNERSHIP A Minnesota Limited Partnership B~~L~~ . Dantul G. eneis, . Its General Partner This instrument was drafted by: CASWELL & ASSOCIATES, P.A. 6070 - 50th Street North Oakdale, Minnesota 55128 -. . 23 -- -- C STATE OF MINNESOTA ) )ss . COUNTY OF RAMSEY ) -: , This instrument was acknowledged before me on - '), (,','--:: ,-1...", I'. ., ' . 1990 I by .IV', I ( .-... _ r (~Ndb-<= -"", . the Mayor and /Co6<N,:.r (=. cJ''fr-T/ the City Manager/Clerk of the City of North St. Paul, Minnellota. , ~'") - - / i ROSEMAflV J. HUOALLA ~ /......... .;J< '~J . " , . L' " t:._ . ...;.,., I, ~ ...... ~ " . @ No'" PullllC-MmM..- 1 ' Notary Public / Washin9lOll Cou:;" _ . My Cotnm. Exp, 4-,_ ,- , STATE OF MINNESOTA ) / Jss COUNTY OF 4&.,-,...; ) l. instrument was acknowledged before me on ~ri.7-L~ 2-';; . This , 1990, by Daniel G. Feneis, the General Partner of Cottages of North St. Paul Limited Partnership, a Minnesota Limited Partnership. ~/( 1", Notary Pub ~ ...., J, Woinbooqof, Jt No1ory Public. MiMOIOlI SlOllII\SCollllly Mw c.mm, EXll. \.(l4.'9\15 \,..-- . 24 -----.- .c LEGAL DESCRIPTION: Lot "I, Block 1, Target Plaza addition; accord ing to the plat thereof on file and of record in the office of the Regiatrar of Titlea, Ramsey County, Minnesota, except for tha West 747 feet thereof. , . -" . .F:YHTIlT'I' . ASSESSMENT AGREEMENT L THIS AGREEm:i>T, da ted as of this 1st day of June, 1990, by and among t. City of North St. Paul ( the "City") , Co t tages of t;orth St. Paul Limited Partnership ( the "Developer"), and the Assessor for Ra.llsey County ( the "Assessor") : wITNESSETH \,'HEREAS, on or before the da te hereof the City and Developer have entered into a Development Agreement dated as of June 1, 1990 ( the "Agreemen t"), regarding certain real property loca ted in the City (the "Development Property") \oIhich property is-'1:"egally described on Exhibit A attached hereto arid hereby made a par thereof; \,'HEREAS, it is contemplated that pursuant to sa id Agreelllen t, the Developer \oIill under take the development of a 94 unit senior citizen facility and Felated improvemen ts ( the "Proj ect") on the Development Property, \oIhich project shall be constructed in two phases. wHEREAS, the Ci ty and Developer des ire to establish a minimum lIlarket value for the portion of the Development Property and the improvements constructed or to be constructed thereon, pursuant to Minnesota Statutes, Section 469,177, Subdivision 8; ~ \iHEREAS, the City and the Assessor have reviewed plans and specifications for the Project; . NO\,', THEREFORE: , the parties to this Agreement, in considera tion of the promises) covenants, and agreements made by each to the other, do hereby agree as follows: 1. Upon substantial completion of Phase I, the minimum market value which shall be assessed for the Project shall be not less than Two Million Seven Hundred Fifty Thousand ($2,750,000). The parties to this Agreement expect that the construction of part of the Project will be completed on or before August 31, 1991. 2. The minimum market value herein established shall be of no further force and effect and this Agreement shall terminate on December 31, 2003. 3. This Agreement shall be promptly recorded by the Developer along with a copy of Minnesota Statutes, Section 469.177, Subdivision 8, attached as Exhibit B and hereby made a part hereof, wi th the County Recorder of Ramsey County, Minnesota. The Developer shall pay all costs of recording. 4. The Assessor represen ts that he has reviewed the plans and spec i fica tiOllS for the improvements and the market value previously ass igned to the land upon which the improvemnets are to be constructed, and the "mini;;Jum market value" as set forth above is reasonable. 5 . Neither the preamble nor provisions of this Agreement are intended. modify, or shall they be construed as mOdifying, the terms of the Agreeme between the City and the Developer. EXHIB IT B 6. This Agreement shall inure to the benefi t of and be binding upon th( ~ successors and assigns of the parties. . IN WITNESS WHEREOF, the City, and Developer have caus ed this Agreement to b~ executed in their names and on their behalf all as of the date set forth above. THE CITY OF NORTH ST. PAUL, HI NNESOTA By Its By f Its City Manager COTTAGES OF NORTH ST. PAUL LIMITED """"'t~ G' 1 ~ 4'-/( _ ~<--<::b Daniel G. Fene s The General Partner (.- . . STATE OF MINNESOTA ) C ) ss . COUNTY OF WASHINGTON ) This instrument Was acknowledged .before me on , 1990, by William T. Sandber'1 , the Mayor and Robert E. Gatti , the City Manager/Clerk of the City of North St. Paul, Minn a. .- ,,~;:~'~... \''''' I(I.I)OHH (,I.,. ,. > (':;o~ HOldY "'511C-';:: ....-,. t \:~ w-\SE1' COU..I" STATE OF MINNESOTA ) ~~, lA1 eOMM-. UPlAU FE~.l.~'A~Y~1 I COUNTY OF ~~ ) ss ..~.A''''9~~.~' ^,. ....v..^. .....-IVV\ ) ( This instrument was acknowledged before me on ~,,~-t.-,. 4-1.1990, by Daniel G. Feneis, the General Partner of Cottages of North St. Pa 1 Limited Partnership, a Minnesota limited partnership, C. :if;c71f- i- rr) . . No tary Pc, ,. & ....., J. Wo,;,ol>oogor. Jr ~~.r .., ConIn. iIP. 1~1_ ~ . i . CERTIFICATION BY COUNTY ASSESSOR IF The undersigned assessor, being legally responsible for the assessment of the above-described property upon completion of the improvements to be constructed thereon, hereby certifies that the market value assigned to the land and improvements upon completion shall not be less than Three Million Five Hundred Sixty-six Thousand Nine Hundred Ninty-one ($3,566,991). County Assessor for Ramsey County ! I STATE OF MINNESOTA ) .. ) COUNTY OF ) This 1nstrument was acknowledged before me on , 1990, by , the County Assessor of Ramsey County. Notary Public 4 . < c . Subd. 8. A.....m.nl allTeem.nl.l. An authority may, upon entering into a develop- ment or redevelopment agreement pursuant to section 469.176, subdivision 5, enter into a written assessment agreement in recordable form with the developer or redeveloper of 1J'!'Operty within the tax increment financing district which establishes a -minimum market value olthe land and completed improvementa to be constructed thereon until a epecified termination date, which date shall be not later than the date upon which tax increment will no longer be remitted to the authority purauant to section 469.176, subdivision 1. The a..e..ment agreement ahall be preaented to the county asaes.or, or city as.e.sor having the ~wers of the county assessor, of the jurisdiction in which the tax increment {inancing district is located. The as.essor shall review the plans and .pecifications for the improvements to be con.tructed, review the market value previou.ly as.igned to the land upon which the improvementa are to be constructed and, .0 long as the minimum market value contained in the .......ment agreement appears, in the judgment of the assessor, to be a reasonable eetimate, ehall execute the following certification upon the agreement: The undersigned ...essor, being legally responsible for the as.es.ment of the above described property upon completion of the improvements to be con.tructed thereon, herehy certifiea that the market value a..il{Tlod to the land and improvements upon compl~tion shall not be le88 than $... . . . . . . .. . Upon transfer of title of the land to be developed or redeveloped from the authOrity. the developer or redeveloper, the ..sessment agreement, together with a copy of th .ubdivision, ehall be filed for record and recorded in the office of the county recorder or filed in the office of the regi.trar of title. of the county where the real estate or any part thereof is .ituated. Upon completion of the improvements by the developer or redevelop- er, the asses80r shall value the property pursuant to section 273.11, except that the market value ..signed thereto shall not be le.s than the minimum market value contained in the assessment agreement. Nothing herein shall limit the discretion of the assessor to ...ign a market vslue to the property in exce.. of the minimum market value contained in the assessment agreement nor prohibit the developer or redeveloper from .eeking, through the exercise of administrative and legal remedie., a reduction in market value for property tax purposes; provided, however, that the developer or redeveloper shall not seek, nor shall the city ...essor, the county assessor, the county auditor, any board of review, any board of equalization, the commissioner of revenue, or any court of this state grant a reduction of the market value below the minimum market value contained in the asseasment agreement during the tenn of the agreement filed 0/ record regardless of actual market values which may result from incomplete construction of improvements, destruction or diminution by any cause, insured or uninsured, except in the case of acquisition or reacquisition of the property by a public entity. Recording or filing of an assessment agreement complying with the tenns of this subdivision .hall CO""titute notice of the agreement to any aubsequent purch..er or encumbrancer 0/ the lard or any part thereot, whether voluntary or involuntary, and shall be bindini' upon them. L . ~-- ,. ~/ . DEVELOPMENT AGREEMENT BY AND BETWEEN - THE CITY OF COTTAGE GROVE AND COTTAGES OF COTTAGE GROVE LIMITED PARTNERSHIP ., , \. . This document drafted by: BRIGGS AND MORGAN Professional Association 2200 First National Bank Building St. Paul, Minnesota 55101 . 18499 , C TABLE OF CONTENTS ~ . ARTICLE 1 - DEFINITIONS . . . . . . . . . . . . . . . . . . . 2 section 1. 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. Acquisition of the Development Property and Site Improvements . . . . . . . . . . 7 Section 3.2. Reimbursement: Tax Increment Revenue Note . . . . . . . . . . . . . . . . . . 7 Section 3.3. Developer's Fee and Legal and Administrative Expenses . . . . . . . . . 9 Section 3.4. Compliance With Low and Moderate Income Requirements . . . . . . . . . . . . . . . 9 ARTICLE IV - EVENTS OF DEFAULT . . . . . . . . . . . . . . . 10 Section 4.1. Events of Default Defined . . . . . . . . 10 Section 4.2. Remedies on Default . . . . . . . . . . . 11 Section 4.3. No Remedy Exclusive . . . . . . . . . . . 11 I Section 4.4. No Implied Waiver . . . . . . . . . . . . 11 . '\0'-..... . Section 4.5. Agreement to Pay Attorney's Fees and Expenses . . . . . . . . . . . . . . . . . 11 Section 4.6. Indemnification of Authority and City . . 12 ARTICLE V - DEVELOPER'S OPTION TO TERMINATE AGREEMENT . . . . 13 Section 5.1 The Developer's Option to Terminate . . . . 13 Section 5.2 Action to Terminate . . . . . . . . . . . . 13 Section 5.3 Effect of Termination . . . . . . . . . . . 13 ARTICLE VI - ADDITIONAL PROVISIONS . . . . . . . . . . . . . 14 Section 6.1. Restrictions on Use . . . . . . . . . . . 14 Section 6.2. Conflicts of Interest . . . . . . . . . . 14 Section 6.3. Titles of Articles and Sections . . . . . 14 Section 6.4. Notices and Demands . . . . . . . . . . . 14 Section 6.5. Counterparts . . . . . . . . . . . . . . . 15 Section 6.6. Law Governing -- IS . . . . . . . . . . . . . . Section 6.7. Expiration . . . . . . . . . . . . . . . . 15 Section 6.8. Provisions surviving Rescission or Expiration . . . . . . . . . . . . . . . . 15 Section 6.9. Amendments to Agreement . . . . . . . . . . 15 SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . 18-19 AC~OWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . 20-21 \ EXHIBITS . 18499 '- DEVELOPMENT AGREEMENT . THIS AGREEMENT, made as of the lst day of June, 1991, by and between the City of Cottage Grove, Minnesota (the "city"), a municipal corporation organized and existing under the laws of the State of Minnesota and Cottages of Cottage Grove Limited Partnership, (the "Developer"), WITNESSETH: WHEREAS, pursuant to Minnesota Statutes, Section 469.124 through 469.134, the city has formed Municipal Development District No. 7 (tlT'e "Development District") and has adopted a development program therefor (the "Development Program"); and WHEREAS, pursuant to the provisions of Minnesota Statutes, Section 469.174 through 469.179, as amended, (hereinafter the "Tax Increment Act"), the City has created, within the Development District, Tax Increment Financing District No. 1-8 (the "Tax Increment District"), the legal description of which is attached hereto as Exhibit A, and has adopted a tax increment financing plan, dated April 3, 1991, therefor (the "Tax Increment Plan") which provides for the use of tax increment financing in connection with certain development within the Development District; and \ WHEREAS, in order to achieve the objectives of the . Development Program and particularly to make the land in the Development District available for development by private enterprise in conformance with the Development Program, the city has determined to assist the Developer with the financing of certain costs of a Project (as hereinafter defined) to be constructed within the Tax Increment District as more particularly set forth in this Agreement; and WHEREAS, the city believes that the development and construction of the Project, and fulfillment of this Agreement are vital and are in the best interests of the city of Cottage Grove, the health, safety, morals and welfare of residents of the City, and in accordance with the public purpose and provisions of the applicable state and local laws and requirements under which the Project has been undertaken and is being assisted. NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: I . 18499 L ARTICLE 1 . DEFINITIONS Section 1.1. Definitions. All capitalized terms used and not otherwise defined herein shall have the following meanings unless a different meaning clearly appears from the context: Aqreement means this Agreement, as the same may be from time to time modified, amended or supplemented; Business 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; Qity means the city of Cottage Grove; Minnesota; Compliance Certificate means the Compliance Certificate in substantially the form attached hereto as Exhibit E; County means Washington County, Minnesota; . Developer means Cottages of Cottage Grove Limited Partnership its successors and assigns; .Developer's Fee means the Developer's Fee the Developer is . "-.~- required to pay the City under Section 3.3 hereof; Development District means the real property described in the Development Program; Development Proqram means the development program approved in connection with the Development District; Development Propertv 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; Leqal and Administrative Expenses means the fees and expenses incurred in connection with the adoption of the Tax Increment Financing Plan, the preparation of this Development Agreement, and the issuance of the Tax Increment Note; Note Payment Date means August 1, 1993, and each February 1 and August 1 of each year thereafter to and including February 1, 2005; provided, that if any such Note Payment Date should not be ( . 18499 2 , C a Business Day, the Note Payment Date shall be the next succeeding Business Day; . Prime Rate means the rate of interest from time to time publicly announced by First Bank National Association in Minneapolis, Minnesota, as its "prime rate" or any successor rate, which rate shall change as and when that prime rate or successor rate changes; proiect means the approximately 59 unit multifamily elderly housing development to be located on the Development Property; Site Imorovements means those site improvements described on Exhibit D attached hereto; state means the state of Minnesota; Tax Increments means the tax increments derived from the Tax Increment District which have been received and retained by the City in accordance with the provisions of Minnesota statutes, Section 469.177; Tax Increment Act means Minnesota Statutes, Sections 469.174 through 469.179, as amended; Tax Increment District means Tax Increment Financing . District No. 1~8 located within the Development District, the legal description of which is set forth on Exhibit A attached hereto, which was qualified as a housing district under the Tax Increment Act; Tax Increment Financinq Plan means the tax increment financing plan approved for the Tax Increment District by the City Council on April 3, 1991; Tax Increment Note or Note means the Tax Increment Revenue Note of 1991 (Cottages of Cottage Grove Limited Partnership Project) to be executed by the city and delivered to the Developer pursuant to Article III hereof, a copy of which is attached hereto as Exhibit c. Unavoidable Delavs means delays, outside the control of the party claiming its occurrence, which are the direct result of strikes, other labor troubles, unusually severe or prolonged bad weather, acts of God, fire or other casualty to the Project, litigation commenced by third parties which, by injunction or other similar jUdicial action or by the exercise of reasonable discretion, directly results in delays, or acta ot any tederal, i . 18499 3 ---- --.- 'e ARTICLE II REPRESENTATIONS AND WARRANTIES. Section 2.1. Representations and Warranties of the City. The City makes the following representations and warranties: (1) The City is a municipal corporation and has the power to enter into this Agreement and carry out its obligations hereunder. (2) Based on the covenants of the Developer set forth in section 3.4, the Ta~ Increment District is a "housing district" within the meaning of Minnesota statutes, Section 469.174, Subdivision 11, and was created, adopted and approved in accordance with the terms of the Tax Increment Act. (3) The development contemplated by this Agreement is in conformance with the development objectives set forth in the Development Program. (4) To finance certain costs within the Tax Increment District, the City proposes, subject to the further provisions of this Agreement, to apply Tax Increments to reimburse the Developer for the costs of the Development Property and certain site Improvements incurred in connection with the Project as . further provided in this Agreement. The city makes no representation or warranty, either (5) express or implied, as to the Development Property or its condition or the soil conditions thereon, or that the Development Property shall be suitable for the Developer'S purposes or needs. Section 2.2. Representations and Warranties of the Developer. The Developer makes the following representations and warranties: (1) The Developer has power to enter into this Agreement and to perform its obligations hereunder and is not in violation of the laws of the State. (2) The Developer will cause the Project to be installed in accordance with the terms of this Agreement, ,the Development Program, and all local, state and federal laws and regulations (inclUding, but not limited to, environmental, zoning, energy conservation, building code and public health laws and regulations). '. 18499 5 --- L (3 ) 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. (4) The Developer will use its best efforts to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, state, and federal laws and regulations which must be obtained or met before the Project may be lawfully constructed. (5) 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. (6) The Developer will cooperate fully with the city with respect to any litigation commenced with respect to the Project. (7) The Developer will cooperate fully with the City in . resolution of any traffic, parking, trash removal or public safety problems which may arise in connection with the construction and operation of the Project. (8) The construction of the project will commence on or before January 1, 1992 and, barring Unavoidable Delays, the Project will be substantially completed by December 31, 1992. -' I . \ '--- 18499 6 -- ~ ARTICLE III UNDERTAKINGS BY DEVELOPER AND CITY section 3.1. Acauisition of the Development Property and site Improvements. The parties agree that the site Improvements to be constructed by the Developer are essential to the successful completion of the Project. The costs of the acquisition of the Development Property and the Site Improve- ments, which shall include engineering and all other costs directly related to the making of the Site Improvements, together with the Legal and Administrative Expenses are estimated to be at least $585,000. The costs of the acquisition of the Development Property and the site Improvements and Legal and Administrative Expenses shall be paid by the Developer. The City shall reimburse the Developer for the lesser of $585,000, or the costs actually incurred and paid by the Developer as further provided in Section 3.2 hereof. section 3.2. Reimbursement: Tax Increment Revenue Note. The City shall reimburse the payments made by the Developer under section 3.1 for costs of the acquisition of the Development Property and the site Improvements and Legal and Administrative Expenses through the issuance of the city's Tax Increment Revenue Note in substantially the form attached to this Agreement as Exhibit C, subject to the following conditions: . (1) The Note shall be dated, issued and delivered when the De~eloper shall have demonstrated in writing to the reasonable satisfaction of the City that the construction of the site Improvements has been completed, that the Developer has incurred and paid all costs of the acquisition of the Development Property and the Site Improvements and Legal and Administrative Expenses, as described in and limited by section 3.1 and that the Developer determines that it will complete at least 50% of the Project by January 1, 1992 (unless waived by the Developer). (2) The unpaid principal amount of the Note shall bear simple, non-compounded interest from the date of issuance of the Note, at 9.00% per annum. Interest shall be computed on the basis of a 360 day year consisting of twelve (12) 30-day months. (3 ) The principal amounts of the Note and the interest thereon shall be payable solely from the Tax Increments. (4) The payment dates of the Note shall be the Note Payment Dates. The Developer shall submit a statement to the city on or before each January I and July 1, commencing on July 1, 1993, setting forth the principal amount of the Note and the accrued . 18499 7 C Certificate covering a period commencing on January 1 of the immediately preceding calendar year and ending no later than . December 1 of the same year or June 1 of the current year (whichever is the most recent date prior to submission of the statement), and executed by the Developer. On each Note Payment Date and subject to the provisions of the Note, the City shall pay, against the principal and interest then due on the Note, 90% of any Tax Increments received by the City during the preceding 6 months. All such payments shall first be applied to accrued and unpaid interest on the Note and then to principal of the Note. (5) Notwithstanding anything herein in the Note to the contrary, the City shall be under no Obligation to apply or pay the Tax Increments to the payment of the Note any earlier than 30 days after it has received the Developer's statement required by paragraph (4) above. Any interest accruing on Tax Increments held by the City pending the Note Payment Dates or receipt of such statement from the Developer shall accrue to the benefit of the City. (6) The Note shall be a special and limited obligation of the City and not a general obligation of the City, and only Tax Increments shall be used to pay the principal of and interest on the Note. If, on any Note Payment Date, the Tax Increments for the payment of the accrued and unpaid interest on the Note are inSUfficient for Such purposes, the difference shall be carried forward, without interest accruing thereon, and shall be paid if . and to the extent that on a future Note Payment Date there are Tax Increments in excess of the amounts needed to pay the accrued interest then due on the Note. (7) The City's obligation to make payments on the Note on any Note Payment Date or any date thereafter shall be conditioned upon the requirement that (A) there shall not at that time be an Event of Default that has occurred and is continuing under this Agreement and (B) this Agreement shall not have been rescinded pursuant to Section 4.2(b). (8) The Note shall be governed by and payable pursuant to the additional terms thereof, as set forth in Exhibit c. In the event of any conflict between the terms of the Note and the terms of this Section 3.2, the terms of the Note shall govern. The issuance of the Note pursuant and subject to the terms of this Agreement, and the taking by the City of such additional actions as bond Counsel for the Note may require in connection therewith, are hereby authorized and approved by the City. ( . \~. 18499 8 ~ section 3.3. Developer's Fee and Leqal and Administrative Expenses. As partial compensation for service~ provided by the city to facilitate development of the Project and for additional municipal services required by the Project during the term of this Agreement, the Developer shall pay to the City in immediately available funds on or before the date the certificate of occupancy is issued by the City but no later than August 1, 1993 a Developer's Fee in the amount of $23,000. In addition, the Developer shall, upon request of the City, payor reimburse for the payment of all Legal and Administrative Expenses. Section 3.4. Compliance with Low and Moderate Income Requirements. The-Developer covenants that in excess of eighty percent (80%) of the "fair market value" (as defined in Section 469.174, Subdivision 11, of the Act) of the Project will at all times be occupied by persons of "low and moderate income" (as defined in the Tax Increment Financing Plan) and that one hundre~ percent (100%) of the units of the Project, unless consented to by the city, will be all times be occupied by at least one elderly [55 years of age and older] person, that 40% of the residential units in the Project will be occupied by individuals whose income is 60% or less of the median family income, as adjusted for family size and that it will establish such monitoring procedures with respect to applicants for and occupants of dwelling units in the Project as the city may . reasonably require to assure compliance with this requirement. . 18499 9 ,. ARTICLE IV L- . 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 anyone or more of the following events: (a) Failure by the Developer to timely pay any ~ valorem real property taxes assessed with respect to the Development Property or to pay when due the Developer's Fee. (b) Failure by the Developer to cause the installation of the Project to be completed pursuant to the terms, conditions and limitations of this Agreement. (c) Failure of the Developer to observe or perform any other covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. (d) The holder of any mortgage on the Development Property or any improvements thereon, or any portion thereof, commences foreclosure proceedings as a result of any default under the applicable mortgage documents. (e) If the Developer shall . (A) file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act of 1978, as amended or under any similar federal or state law; or (B) make an assignment for the benefit of its creditors; or (C) admit in writing its inability to pay its debts generally as they become due; or (D) be adjudicated a bankruES or insolvent; or if a petition or answer proposing the adjudication of the Developer, as a bankrupt or its reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within sixty (60) days after the filing thereof; or a receiver, trustee or liquidator of the Developer, or of the Project, or part thereof, \. . 18499 10 f shall be appointed in any proceeding brought against the Developer, and shall not be discharged within sixty (60) days after such appointment, or_if the Developer, shall consent to or acquiesce in such appointmen~. section 4.2. Remedies on Default. Whenever any Even~ of Default referred to in Section 4.1 occurs and is continuing, the city, as specified below, may take anyone or more of the following actions after the giving of thirty (30) days' written notice to the Developer, but only if the Event of Default has not been cured within said thirty (30) days: (a) The City may suspend its performance under this Agreement until it receives assurances from the Developer, deemed adequate by the city, that the Developer will cure its default and continue its performance under this Agreement. (b) The City may cancel and rescind the Agreement. (c) The city may take any action, including legal or administrative action, in law or equity, which may appear necessary or desirable to enforce performance and observance of any obligation, agreement, or covenant of the Developer under this Agreement. Section 4.3. No Remedv Exclusive. No remedy herein . conferred upon or reserved to the City is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. Section 4.4. No 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. Aqreement to pav Attornev's Fees and Exoenses. Whenever any Event of Default occurs and the City shall employ attorneys or incur other expenses for the collection of payments due or to become due or for the enforcement or performance or observance of any obligation or agreement on the part of the . 18499 11 Developer herein contained, the Developer agrees that it shall, \...., on demand therefor, pay to the City the reasonable fees of such . attorneys and such other expenses so incurred by the city. section 4.6. Indemnification of Authoritv and city. (1) The Developer releases from and covenants and agrees that the city, its governing body members, officers, agents, including the independent contractors, consultants and legal counsel, servants and employees thereof (hereinafter, for purposes of this Section, collectively the "Indemnified Parties") shall not be liable for and agrees to indemnify and hold harmless the Indemnified Parties against any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Project, provided that the foregoing indemnification shall not be effective for any actions of the Indemnified Parties that are not contemplated by this Agreement. (2) Except for any willful misrepresentation or any willful or wanton misconduct of the Indemnified Parties, the Developer agrees to protect and defend the Indemnified Parties, now and forever, and further agrees to hold the aforesaid harmless from any claim, demand, - sui t, 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; provided, that this indemnification shall not apply to the warranties made or obligations undertaken by the City in this Agreement or to any actions undertaken by the City which are not contemplated by this Agreement but shall, in any event and without regard to any fault on the part of the City, apply to any pecuniary loss or penalty (inClUding interest thereon from the date the loss is incurred or penalty is paid by the City at a rate equal to the Prime Rate) as a result of the Project causing the Tax Increment District to not qualify or cease to qualify as a "housing district" under Section 469.174, Subdivision 11, of the Act or to violate limitations as to the use of Tax Increments as set forth in Section 469.176, Subdivision 4d. - (3) All covenants, stipulations, promises, agreements and obligations of the City contained herein shall be deemed to be the covenants, 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. \ . 18499 12 ." ARTICLE V ~ DEVELOPER' S OPTION TO TERMINATE AGREEMENT section 5.1 The Developer's option to Terminate. This Agreement may be terminated by Developer, if (i) the Developer is in compliance with all material terms of this Agreement and no Event of Default has occurred; and (ii) the city fails to comply with any material term of this Agreement, and, after written notice by the Developer of such failure, the City has failed to cure such noncompliance within ninety (90) days of receipt of such notice, or, if such noncompliance cannot reasonably be cured by the City withi~ninety (90) days, of receipt of such notice, the city has not provided assurances, reasonably satisfactory to the Developer, that such noncompliance will be cured as soon as reasonably possible. section 5.2 Action to Terminate. Termination of this Agreement pursuant to section 5.1 must be accomplished by written notification by the Developer to the city within thirty (30) days after the date when such option to terminate may first be . exercised. A failure by the Developer to terminate this Agreement within such period constitutes a waiver by the Developer of its rights to terminate this Agreement due to such occurrence or event. . Section 5.3 Effect of Termination. If this Agreement is terminated pursuant to this Article V, this Agreement shall be from such date forward null and void and of no further effect; provided, however, the termination of this Agreement shall not affect the rights of either party to institute any action, claim or demand for damages suffered as a result of breach or default of the terms of this Agreement by the other party, or to recover amounts which had accrued and become due and payable as of the date of such termination. upon termination of this Agreement pursuant to this Article V, the Developer shall be free to proceed with the Project at its own expense and without regard to the provisions of this Agreement; provided, however, that the City shall have no further obligations to the Developer with respect to reimbursement of the expenses set forth in section 3.2. . 18499 13 ~ ARTICLE VI ADDITIONAL PROVISIONS . Section 6.1. Restrictions on Use. The Developer agrees for itself, its successors and assigns and every successor in interest to the Development Property, or any part thereof, that the Developer and such successors and assigns shall operate, or cause to be operated, the Project as a multifamily housing facility for the elderly and shall devote the Development Property to, and in accordance with, the uses specified in this Agreement. Section 6.2. Conflicts of Interest. No member of the governing body or other official of the city shall have any financial interest, direct or indirect, in this Agreement, the Development Property or the Project, or any contract, agreement or other transaction contemplated to occur or be undertaken thereunder or with respect thereto, nor shall any such member of the governing body or other official participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. No member, official or employee of the city shall be personally liable to the City in the event of any default or breach by the Developer or successor or on any obligations under . the terms of this Agreement. Section 6.3. Titles of Articles and Sections. Any titles of the several parts, articles and sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 6.4. Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand or other communication under this Agreement by any party to any other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally, and (a) in the case of the Developer is addressed to or delivered personally to: - Cottages of Cottage Grove Limited Partnership 10812 Nesbitt Avenue Bloomington, Minnesota 55437 C . 18499 14 .G with a copy to: Salmen & Brinkman, P.A. 2100 Minnesota World Trade Center 30 East Seventh Street st. Paul, Minnesota 55101 (b) in the case of the city is addressed to or delivered personally to the City at: City of Cottage Grove 7516 South 80th Street Cottage Grove, Minnesota 55016 - 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 6.5. Counteruarts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 6.6. Law Governinq. This Agreement will be governed and construed in accordance with the laws of the state. Section 6.7. Exoiration. This Agreement shall expire on . August 1, 1994, unless earlier terminated or rescinded in accordance with its terms. Section 6.8. Provisions Survivina Rescission or Exoiration. Sections 4.5 and 4.6 shall survive any rescission, termination or expiration of this Agreement with respect to or arising out of any event, occurrence or circumstance existing prior to the date thereof. Section 6.9. Amendments to Aareement. Notwithstanding the foregoing, in the event that the city determines that the porject is not at least 50% complete on or before January 2, 1992 (unless waived by the Developer) certain provisions and sections of this Agreement shall be amended, without further actions ot the parties, to provide as follows: "Note PaYment Date means August 1, 1994, and each February 1 and August 1 of each year thereafter to and including February 1, 2006; provided, that if any such Note Payment Date should not be a Business Day, the Note Payment Date shall be the next succeeding Business Day;" . 18499 15 ~H L' "section 3.2(1) The Note shall be dated, issued and delivered when the Developer shall have demonstrated in writing 4It to the reasonable satisfaction of the city that the construction of the site Improvements has been completed, that the Developer has incurred and paid all costs of the acquisition of the Development Property and the Site Improvements and Legal and Administrative Expenses, as described in and limited by Section 3.1 and that the Developer determines that it will complete at least 50% of the Project by January 1, 1992 (unless waived by the Developer)." "Section 3.2(4) The payment dates of the Note shall be the Note Payment Dates. The Developer shall submit a statement to the City on or before each January 1 and July 1, commencing on July 1, 1994, setting forth the principal amount of the Note and the accrued interest thereon due on the following February 1 or August 1 as appropriate, shall include with the statement a Compliance Certificate covering a period commencing on January 1 of the immediately preceding calendar year and ending no later than December 1 of the same year or June 1 of the current year (whichever is the most recent date prior to submission of the statement), and executed by the Developer. On each Note Payment Date and subject to the provisions of the Note, the city shall pay, against the principal and interest then due on the Note, 90\ of any Tax Increments received by the city during the preceding 6 months. All such payments shall first be applied to accrued and . unpaid interest on the Note and then to principal of the Note." "Section 3.3. Developer's Fee and Leqal and Administrative Expenses. As partial compensation for services provided by the City to facilitate development of the Project and for additional municipal services required by the Project during the term of this Agreement, the Developer shall pay to the City in immediately available funds on or before the date the certificate of occupancy is issued by the City but no later than August 1, 1992 a Developer's Fee in the amount of $26,500. In addition, the Developer shall, upon request of the City, payor reimburse for the payment of all Legal and Administrative Expenses." The Note when executed shall provide in paragraph three as follows: _ "The amounts due under this Note shall be payable on August 1, 1993, and on each February 1 and August 1 thereafter to and including February 1, 2006, or, if the first should not be a Business Day (as defined in the Development Agreement) the next succeeding Business Day (the "Payment Dates"), provided, that such Payment Date shall be automatically extended if and to the extent required to relieve the City of any obligation to pay any . 18499 16 .L Payment Amount any earlier than 30 days after it has received the statement and Compliance Certificate required under section 3.2(4) of the Development Agreement. On each-Payment Date the City shall pay by check or draft mailed to the person that was the Registered Owner of this Note at the close of the last business day of the city preceding such Payment Date an amount equal to the sum of 90% of the Tax Increments (hereinafter defined) received by the City during the six month period preceding such Payment Date. All payments made by the City under this Note shall first be applied to accrued interest and then to principal." - tt' . 18499 17 -- .~ IN WITNESS WHEREOF, the city has caused this Agreement to be L duly executed in its name and on its behalf and its seal to be . hereunto duly affixed, and the Developer has caused this Agreement to be duly executed in its name and on its behalf, on or as of the date first above written. B \ . ''---- This is a signature page to the Development ~reement dated as of June. 1, 1991, by and between the city of Cottage Grove and Cottages of Cottage Grove Limited Partnership. \ 18499 . 18 -- f COTTAGES OF COTTAGE LIMITED PARTNERSH By I '?U - I, I . This is a signature page to the Development Agreement dated as of June 1, 1991, by and between the City of Cottage Grove and Cottages of Cottage Grove Limited Partnership. . 18499 19 C STATE OF MINNESOTA ) . ) . ss COUNTY OF u.lAw-~~ ) . , <:;""-- The fore':\.ing instrument was aCkn~ede:d b1So~ me this 1- day of ,'->-Y , 1991, by (c. 'c~ ':.Q ""~\jI>- and ~v:"' '(:,,<,-..(.. \ l ,the Mayor and the City Administrator, respectively, 0 the City of Cottage Grove, Minnesota, a Minnesota municipal corporation. " TOOD J. HAGEN -. "- -Counly...... ....CclftliIeIion~o.c.tl.1_ I . \ "-..... - C 18499 . 20 , i- STATE OF MINNESOTA ) ) : 55 COUNTY OF D-V\'M.S"~ ) L ~~The fOregoi~g instrument was ackno rt me this .\ day .o~ ,,^~ , 1991, by .Q"" "2 tev the ~.v,-( . ,<'\w... of Cottages of Cottage L~m~ted Partnership. - @ TOOD J. HAGEN -.----""""'........ Wr'" "'1 EIprwa Ole. 't. ,atS . . 18499 21 'I EXHIBIT A "- Legal Description of Tax Increment District . :nO.l6'-2900 m:CT-16 TWF'-"O:n RANG-21 PT OF SW1I4 COM AT INTER~, OF NEL Y L.INE OF F'T [IDUGI_.AS I:lR /, SEL Y l. INE OF INGDERG TR ACCORI:l TO PLAT OF THOMPSON GR EST"'TF.: 2ND AD[I THN N 38DEG 04' O;!., , E ALONG SEL Y I...INE OF INGBE/,G TR 570FT THN 8 51[lEG 55- '58- - E 150FT THN N 78DEG 38' 30' , E 67.18FT THN S ~lDEG 56' 17' , E lOl.69FT TO PT OF BEG THN S ,5l[rEG 56' 17' , E 239. ~~OFT THN S OODEG 02' 45- t (./ 550. 85FT M/L TO 8 LINE OF 8D S'')1/4 THN N89DEG57'15" W AI_ONG S L.INE OF SD SWl./4 TO ITS rNTERSECTION WITH EXlENSION SELY OF NEL Y l.INE sn F'T DOUGL.AS DR THN N 50DEG 25~ ~8' , W 171.94FT THN N 39DEG34'02"E 214.86FT THN S 50DEG 25'58"E 76.0FT THN N39DEG3....02..E 107.5FT THN N50DEG2:"i'58"W 237FT THN N39DEG34'02"E 308.30 FT TO PT OF BEG \ . " - r . \ 18499 "-. A-l EXHIBIT B THAC1' "il" L PROrERTY In:SCRIM'IO!; .' . . All thol: part of the Sou~hwest One-Q~rtcr (S~ 1/4) of Section 16, TOlmchip 27 f Range 21, h'~lihinhton County, ~linncsota dcscril ed 85 [0110....5: 3cgin..'''d,ng;:lt the inr.erlicction of the l'orthca:;t- crly line of Foin: Do~Slas Drive and the $ouchcasterly line of Insbere !:;)il. .ccordins to th~ plat of Tho~pson ~ove Estates Second Addition on!ile .nd of reco:rd 1.., the office of the Re:;- ister of Deeds in and for soid ~ashinston Co~ty: the~ce North 33 cesrees, 04 ~L~utesf 02 seconds ~st alon; the Southeastcrl) line of said In3~c:g ~ail 570 fecti thence South 51 degrees. 55 ~inutes, 58 seconds E3$t ISO feet; thence North 78 degrees, Jb ~inuces, JO seconds E3~t 67.10 feet; thence South 51 dCEr~e! 56 ~inutes, 17 s~=onds E4st 4~1.19 feet; thence South 00 de- t;Tl-C:S, 02 :::i:1ut.as, t.S seconds \':'<.:St 5~().&!> feet ::lore or less to ::he Sout:~ linc ot sa:i,c ~outi-,"'est ():i...-t<~rlc:- (5\,,' 1/4); thence ~or~h 89 d~grees, 57'~inut:e~. 15 scconc~ ~est along thc South < . ine of s~id Sot:ti':\.;est C:"le-~uart:c= (S;.] 1/4) t.o its int.c:rsc:c,- .:iO;1 \~ich the e:.::en:;:!.uI1 SUl.JtllL:~sccrl)' ('If the t\ortneasccrly lint cf s~id PC'linc Dou:;las l.:"I'ivu; thence l'C':-th 50 ucg:-ecs, 2.5 '~in- ~tCS, 53 seconds ~cst along che ext.ension of the Northc~sterly line of s;]io Pornt !;'-'ugl.,s Drive ;:0 the point of besinnin;:;. e;-l- c~~t: tn.::lt pOt!: 0:; tiH: 'above d(!sC'rib~'d t:.:ct elf l...nd (i'ract "C"; cescribed as co=encin); at s:lid i-:'lte:rsection of the No:r:::hc:lst- c'~ly line of Point Douglas l>Tivc and the Southca~tc::ly\ line of '1:1;:;ber1; Tr:lil: l.henc~ South 50 degrees, 2~ ~inutr::$. 58 $econds .i::-:lSt alonl; the Not"t:heatedy line of said Point Douslas Drive 265 ie~t to the point of beginnin~ C'lf the 1<3:1~ to be hereinaft- er c~sct"ibcd; thence Notth 39 desre~s, 3~ minutes, 02 seconds r~st 255 feet; thence South 50 cler-T~e~1 25 ~inutes. 58 $uconds ~st 255 feet; thence South 39 de~Iccs, 3~ ~inutes, 02 s~co:1ds '-'CSt 255 feet. more or less to the Norchea'stcrly line of said ?oint Douglas Drive; thence NOTCh 50.dehrees, 25 minutes. 58 Geconds ~est a1o:ig said Nort:neasre=1y line 255 feet more or less to the point of besinn~ns; and c~cept that part of the '"lCove descrH:ed tract (Tract: "A") of land described as begin- r.ing at th~ intersect.ion of ~he Northeasterly line of Point , ~~glas Drive and th~ Southeast~rly line of Ingbers ~ail. ac- ~o~dinG to the pla~ of Tho~poon C70ve Est~tes ~econd Addition, on file and of record in the office of the Register of Deeds i' ,,~o lor S.:lid ',.)as)1ington Covnt)'; thence J.;orth 38 dC!;Tecs, Ot. ~~ ,-,,,C!., 02 SE:con<::s LaGe along t.he SO\.Jthca~tCTly line: of said ]r.!.: 1..>,=:::& 17 0 !.1 SiD ioct; thence South 51 dCF.r~crl, ~S ~:d j)\ll l...'':'" I .':>8. :;cconds E..J.st 150 feet; thence ~o r t h 70 dL:p' "c:~, Ji; t,lir.Ull.'S, JO <;;cconCs E.:lli t 67.16 feet: ; thence $<-Jurh 51 dC'gr{'c~ , 56 ::d:1''::<':s, \.) seconds ~st 181.69 feel: ; t:hcnce Souch 39 dC'~r~c~, )4 r,lin- uces. 02 second~ ~est: 30e.3D !eee; thence South 50 dL:g'l'ce~, 25 ::Jinut:cs, 58 seconds E..9 S t 237 ieet; thence So:lth .39 dc~ree!,' :3. ::::linutc:o , 02 seconds i,est 107.5 f~et; t~encc ~orth 50 dc~rcc~, 25 -:ninut es, 58 ~econds ,",'est. 76.0 feet" tncncl:! NOTth 39 dr:~Tec.:!'i , , 34 ninuteS, 02 seconds E-a st. 40.1'-1 feee; ehcnee t-:orth ,5U d e [;'r C ~ S , 25 cinutes, . 53 sectlnds \h:s t 255.00 .feet; thence: South 39 dl'- :;I'CCS, 3L. ::linutes, 02 seconds \.{I<st 255.00 feet to the Korthlj.:l.c::t - crl)' 1 i..e of Poine. Douglas :>rive; chence North 50 ccgl' ec:s, 25 _of......,......es 58 seconds ....est:. .alons the ~ortheaste!ly linC of point: "...J._--- 7 Douglas llrive 265.00 feet: co the point of be.ginninr;. Subject to a s-..:i::::':ling pool eas=ent described as lollo....l: : <,:o..."cnc in!!. -~ tile i~tersecl:ion of the No=theaste~ly line of j'oint DougJDS ... '- . ~i\1e and the SoutheasterJ)' line of 1nl'oe:rg Trail, .:lccordin~ to ::he plat of'Thompson G'rC'lve Est-aces Second Acdition on file and 0= record in the office of. the Regisccr of Deeds in o~J [oJ'r ~.'l i' .....'ashington Co\.:.nt); the::ce North 38 cief.ree::;, oJ':' ~inl..:tcS, ()2 ~(>C.., o~ds E..ase along . ~~thCaStcrly linu of Sol i<l 1 n;::bcr & Tr;'l il SiC t:~e ~ee~ .- the::ce South 5l:dcl;Iees, 55 minute~. .58 ~i!co::ds i::a.~ t lSU - '-, ~~P1:" t::e:Jce ~;o:rt:h 78 degrees', 3[; I;1inutes. :1 'J s~conds E.<l s c i.7 . 1 B --- , ...:eet:; the:-:ce South 51 cleF-::ees, S6 nillut.es, 17 ~ccnr"lds !;..ase 131.69 feei:; chence $o-.Jt.h 39 dcg.:ees, 3~ l~inutcS, 02 s~conc5 . ,,",est: 35.00 fe~t. to che point of be~innin~; thence South SO de grees, 25' ;;1inutes. 5.8 s ccone.s ~s: 5.00 fcct; the~ce South 39 c::i el;1" ees, 3~ minutes, 02 seconds ....'wst 6Cl.ilO feet.; thene e: Noreh .50 degrees, 25 l7Iinutes. 58 ~econds ~est 5.00 fe(.)t:; thence 1\0 r t h ",,0 "'~ZTees, 3'-1 ~in\Jtes. 02 seccnd$ '::o.SI: 6c.O{) fcat: to che P<"> i n:: ... , of begin..,ing. ~ . 7c-&e.tner ......i.t:h .a s.....Ur.=::li ng pool ease:",(.)nt descrihClO ;l.S fol1o....s: CO:::;::::lencing at the intersect.ion of che No:rt:h~c5:re:rly .lin~ oS: point DouglOis Drive and thE:: Southeasterly line of ln~bcr1; TraD ,.according to the plat of Thompson Grove EstaCC:5 S~cond Additio~ on file and of record in the office of t~~ ~c~is~er of TJeeds i~ o::;d fo::: said \-;a~hiT18ton Count)'; thence North 38 dc~ees, (l4 i:"li~ :':CC5. 02 seconds East ~lonb the Southeastcrly'line of s~id Int'- berg 1Yail 570 ~eet:; thencc South 51 dCSTl;C!, 55 ::'lin\Jtes, 5C seconds ust 150 feet; thence Norch 78 dc~rces, 33 l:1inute:-, 30 seconds E..ast 67.18 feet; cher>ce South 51 de~rC!es, 5tJ minutes, 17 seconds East lS1.69 feet; thence Souch )9 dC/;Tces, 34 ~in- '"...:.te~) 02 seconds \-lest: 35.00 feet co the point: of besinr>ing; thence r;orth 50 degrees, 2S pinut r..:s, 5f. .!:eeOI'lc:1:< '..'cst 8:1.00 ~. :::hc~ec South "39 degree!: , 3L. ::;irllH Cl' J 02 ~acnndl. \Jest' (,.8. au :: h c:T'.c e south .50 de.s;I'ces, 2~ minu( cf, ,)C I'l.'conds L:JSt. nJ.0') [ue t:hcnce l:orth 39 degree!>, 34 cinUt.cs, ()2 seconds ::..:.:o;t. uc.O'J f<.:<: r.D t:)o,u point. of bcginninj;. TOTAL P. '* ~ EXHIBIT C ~ FORM OF TAX INCREMENT NOTE No. R-1 $ UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF WASHINGTON IN AND FOR THE CITY OF COTTAGE GROVE ~ TAX INCREMENT REVENUE NOTE OF 1991 (COTTAGES OF COTTAGE GROVE LIMITED PARTNERSHIP PROJECT) The City of Cottage Grove, 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 Cottages of Cottage Grove Limited Partnership or its registered assigns (the "Registered Owner"), but only in the manner, at the times, from the sources of revenue, and to the extent hereinafter provided. The principal amount of this Note shall equal from time to time the principal amount stated above, as reduced to the extent ~ that such principal installments shall have been paid in whole or in part pursuant to the terms hereof; provided that the sum of the principal amount listed above shall in no event exceed $585,000, as provided in that certain Development Agreement, dated as of June 1, 1991, as the same may be amended from time to time (the "Development Agreement"), by and between the City of Cottage Grove, Minnesota (the "City"), and Cottages of Cottage Grove Limited Partnership (the "Company"). The unpaid principal amount hereof shall bear interest from the date of this Note at the simple, non-compounded rate of seven percent (9.00%) per annum. Interest shall be computed on the basis of a 360 day year consisting of twelve (12) 30-day months. The amounts due under this Note shall be payable on August 1, 1993, and on each February 1 and August 1 thereafter to and inCluding February 1, 2005, or, if the first should not be a Business Day (as defined in the Development Agreement) the next succeeding Business Day (the "Payment Dates"), provided, that such Payment Date shall be automatically extended if and to the extent required to relieve the City of any obligation to pay any Payment Amount any earlier than 30 days after it has received the statement and compliance Certificate required under Section ( . 18499 C-1 '- 3.2(4) of the Development Agreement. On each ~ayment Date the . city shall pay by check or draft mailed to the person that was the Registered Owner of this Note at the close of the last business day of the city preceding such Payment Date an amount equal to the sum of 90% of the Tax Increments (hereinafter defined) received by the City during the six month period preceding such Payment Date. All payments made by the city under this Note shall first be applied to accrued interest and then to principal. The Payment Amounts due hereon shall be payable solely from tax increments (the "Tax Increments") from the City's Tax Increment Financing District No. 1-8 (the "Tax Increment District") within its Municipal Development District No. 1 which are paid to the city and which the City is entitled to retain pursuant to the provisions of Minnesota Statutes, Sections 469.174 through 469.179, as the same may be amended or supplemented from time to time (the "Tax Increment Act"). This Note shall terminate and be of no further force and effect following the last Payment Date defined above, on any date upon which the city shall have terminated the Development Agreement under Section 4.2(b) thereof or the Developer shall have terminated the Development Agreement under Article V thereof, or on the date that all principal and interest payable hereunder shall have been paid in full, whichever occurs earliest. The City makes no representation or covenant, express or . implied, that the Tax Increments will be sufficient to pay, in whole or in part, the amounts which are or may become due and payable hereunder. The City's payment obligations hereunder shall be further conditioned on the fact that no Event of Default under the Development Agreement shall have occurred and be continuing at the time payment is otherwise due hereunder, but such unpaid amounts shall become payable, without interest accruing thereon _ in the meantime, if said Event of Default shall thereafter have, been cured; and, further, if pursuant to the occurrence of an Event of Default under the Development Agreement the city elects to cancel and rescind the Development Agreement, the City shall have no further debt or obligation under this Note whatsoever. Reference is hereby made to all of the provisions of the Development Agreement, including without limitation Section 3.2 thereof, for a fuller statement of the rights and obligations of the City to pay the principal of this Note and the interest thereon, and said provisions are hereby incorporated into this Note as though set out in full herein. C. . 18499 C-2 - ---- ~ This Note is a special, limited revenue obligation and not a general obligation of the city and is payable by the city only from the sources and subject to the qualifications stated or referenced herein. This Note is not a general obligation of the City of Cottage Grove, Minnesota, and neither the full faith and credit nor the taxing powers of the City are pledged to the payment of the principal of or interest on this Note and no property or other asset of the City, save and except the above-referenced Tax Increments, is or shall be a source of payment of the City's obligations hereunder. This Note is issued by the City in aid of financing a project pursuant to and in full conformity with the Constitution and laws of the S'Cate of Minnesota, including the Tax Increment Act. This Note may be assigned only with the consent of the City. In order to assign the Note, the assignee shall surrender the same to the City either in exchange for a new fully registered note or for transfer of this Note on the registration records for the Note maintained by the City. Each permitted assignee shall take this Note subject to the foregoing conditions and subject to all provisions stated or referenced herein. IT IS HEREBY CERTIFIED AND RECITED that all acts, condi- tions, 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, statutory or charter limitation thereon. IN WITNESS WHEREOF, City of Cottage Grove, Minnesota, by its City Council, has caused this Note to be executed by the manual signatures of its Mayor and City Administrator and has caused this Note to be issued on and dated , 1991. City Administrator Mayor . 18499 C-) L CERTIFICATION OF REGISTRATION . It is hereby certified that the foregoing Note, as originally issued on , 1991, was on said date registered in the name of Cottages of Cottage Grove Limited Partnership 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 ADMINISTRATOR Cottages of Cottage Grove , 1991 Limited Partnership \..n . - , . 161.99 C-4 ! . EXHIBIT 0 ~ SITE IMPROVEMENTS Excavation, grading, landscaping, sod, lawn sprinklers, footings and foundations, outdoor lighting, fencing, curb and gutter, site concrete, site utilities, bituminous paving an4 stripping. - ( , \ .. - I .. l~W 0-1 . . EXHIBIT E L COMPLIANCE CERTIFICATE . The undersigned of Cottages of Cottage Grove Limited Partnership, does hereby certify that as of the date of this Certificate not less than 40\ of the residential units in the Cottages of Cottage Grove Limited Partnership housing project are occupied by individuals whose income is 60\ or less of area median gross income, as adjusted for family size and in excess of 80\ of the "fair market value" (as defined in Minnesota statutes, Section 469.174, Subdivision 11, of the Cottages of Cottage Grove Limited Partnership housing project is occupied by persons of low and moderate income. Dated this _ day of , 19 - . : , By Its "'- . - , . \ 18499 E-l COUNCIL MINUTE~ (h~~ ~ PAGE SUBJECT: _ J t1 U --- DISCUSSION: -5lJ0/1J- /J1~ rLJJ;5 ~~~au~ -' = ~ .-- Moved: llMYOR .SATHER) G;~~) Seconded: _(~YOR SAJHER) {HI CKS-) THAT COUNCIL: I AYES: NAYS: Hicks-'. Hicks"-. Malone Sather Growe Mahowald . TOTAL: - - ) , :;"", Malone Sather Growe Mahowald ~~::~,Mm",~ ~ j1 DATE PAGE DISCUSSI~ r#'- {; ?A~ - ..- -------..- -~----- -. -~ ~~ ~-- ~--,..- -- ~--~ .-.--..--- --~".- .. Moved: (lMYORSATHER) COUNCILMBR: (HICKS) .. (MALONE) (GROWE) (MAHOWALD) Seconded: _ (MAYOR SA'fHER) COUNCILMBR: (HICKS;) (MALONE) (GRpWE) (MAHOWALDl. THAT COUNCIL: VOTE: AYES: NAYS: Hicks_' Malone ,rather Hicks'- Malone Sather Growe Mahowald Growe Mahowald . ABSTAIN: TOTAL: ( - - ) - . Malone Sather Growe Mahowald Ayes Nays Abs. ALSO PRESENT: Clk/Administrator Attorney Treasurer Engineer Parks Director Pub. Wks. Superintqlldent Planner Dep. Clk . CITY OF ARDEN HILLS . MEM:lUINDUM IllITE : June 12, 1992 ro: Mayor and city Council FRCI!:: @ Terrance R. Post, Temporary city 1\cOoUntant SUBJEX:T: Charitable Gambling update At the May 26, 1992, Council meeting, I was directed by council to obtain additional infonnation regarding charitable gambling. Following are the results of this data gathering: HOO 00 CJI'HER cmES CALCUIATE NET PROFIT CXlNI'RIBUI'ION: I surveyed 15 cities and received replies from 11. Of the 11 respondents, 100 percent of them allowed charitable gambling and only 27 percent (3/11) required a net profit =ntriJ::ution to be remitted directly back to the City. TIle method of calculation for the net profit =ntribution varied as follows: . 1. Gambling receipts less prizes less allowable expenses (Arden Hills, Little Canada). 2. Same as above plus subtractions for all, except local, taxes paid (Maplewood) . 3. Same as "1." above plus subtractions for all taxes paid (Roseville) . CXlUID THE CITY OF ARDEN HILIS JUSI'IFY THE IMPOSmON OF A GAMBLING TAX? It is interesting to note that 36 percent of the respondents (4/11) in my survey have :iJnplemented a gambling tax. TIle gambling tax is corrputed on the basis of gambling receipts less prizes times the tax rate (3 at 3 percent; 1 at .1 percent) . Using the city of Arden Hills first quarter 1991 as a baseline, the licensees are =llecting approximately $650,000 per quarter ($2. 5 million annually) in gambling receipts less prizes. If the City were to consider irrq:Josing a gambling tax, the anvunt generated would be as follows for varying rates: 1/2% 1% 2% 3% (Max) $12,500 $25,000 $50,000 $75,000 . In terms of estimating regulatory =sts to monitor gambling activity within the city, I believe it would be reasonable to anticipate the following expenses: -------- . Charitable Gambling update Page Two LEGAL - (1992 YTD $500; 1991 Actual $365) Assume 1992 is more representative and that attorney time will increase as more "problems" surface under closer scrutiny $6,000 srAFF TIMES EXPENSES (CUrrently not being allocated) - ']he city A=untant salary is =ently allocated 1/3 each between Admin, Sewer & Water . Assume an allocation of 10 percent (approximately 30 hours per licensee) 4,000 - Intermediate Accounting Clerk assume 5 percent of time for receipting, document review and =espondence 1,500 - Mileage Re:i1nb.1rsement, printing, other expenses 500 oursIDE CONTRACIDRS - Field "audits" of operations and local area spending documentation (7 organizations times 16 hours/year times $50/hour plus expenses) 6.000 . TOl7\L $18.000 RE:CJ:>>lMENDATION: I believe a gambling tax rate of .75 percent is supportable and justifiable. TRP Its M92-187 . --- . CITY OF ARDEN HILLS MEM:IU\NDUM Dl<TE : June 12, 1992 TO: Mayor and city council ~:@) Terrance R. Post, Temporary City AccoUntant stlBJECl': Budget Process Prior to publishing the J::udget schedule, I thought it would be a worthwhile exercise to discuss and gather your input on the overall J::udget process. As I have reviewed past annual J::udget materials, it appears as though the process has begun at the staff departmental level and then moved through administrative review and J::udget recommendation stages. I believe that adding a guidelines phase that would define J::udget goals at the beginning of the process would strengthen the J::udget product. If staff is challenged to achieve the City's J::udget goals, they will deliver the mix of resources to accamplish this target as well as . gaining significantly IOClre ownership of the finished report. TRP Its M92-188 . . CITY OF ARDEN HILLS MEH:IU\NDUM ~: June 10, 1992 TO: Mayor and City Council ~:6ff) Terrance R. Post, TEIlporary city 1\cooUntant stJIlJreI' : long-Term Disability (LTD) Insurance At the Council's last worksession meeting on May 18, 1992, staff was directed to obtain cost infonnation regarding long-term disability insurance . As you may recall, this issue gained visibility as a result of current medical leave errqJloyee, Fred Reed, apparently having no specific salary continuation after his short-term disability benefits are exhausted. It should be noted that city errqJloyees may apply for long-term disability benefits provided by Minnesota Public Employees Retirement Association. Mr". Reed is currently exploring this option. . The City's Broker, The Ochs Agency, prepared a bid analysis of L'ID carriers and re=mmends the proposal from Fortis Benefits. The cost of coverage that would provide 60 percent of earnings to a maxilnum benefit of $3,000 per month is $202.44 per month or $10.65 per errqJloyee per month. A review of the 1991 stanton Employee Benefits Survey indicates that relatively few units of goverrunent contrih1te toward the cost of this type of benefit. TRP Its M92-184 . . CITY OF ARDEN lULLS MEMOOANDUM mTE: May 11, 1992 TO: All Staff FRCM: &if Terry Post, TaIIpOrary City Accountant ~: Employee Benefit Cost Information HEALTH INSUlU'lN:::E '!he League of Minnesota cities Insurance Trust has informed us that for 1992-1993, health insurance rates will increase as follcws: IDNI'HLY CDST DEDUCrIBLE OPI'IONS SINGLE CDVERAGE FAMILY CDVERAGE $150 Deductible* $159.03 $410.64 - $ Increase 29.36 75.83 - % Increase 22.6% 22.6% . $300 Deductible** 145.28 375.61 - $ Increase 15.61 40.80 - % Increase 12.0% 12.2% $500 Deductible** 135.46 350.25 - $ Increase 5.79 15.44 - % Increase 4.5% 4.6% * CUrrent Deductible Level **Higher Deductible Options Available to Group to Reduce Premium Costs - As you can see from the above table, the city is again =nfronted with a significant premium increase of about 23% at our present deductible level of $150. In the last two years, both the Single and Family rates have increased 50.9% (From $105.42 to $159.03 and from $272.20 to $410.64 respectively). '!here were no changes in =verage. For now, the deductible will remain at $150. DENl'AL INSUlU'lN:::E . '!here will be no changes in the monthly rates for dental =verage. Single =verage remains at $21. 09 and family =verage remains at $67.33. '!he only significant =verage change is that, beginning July 1, the . application of sealants for children under age 14 will be =vered as a "Basic Service". LIFE INSlJRAN::E AND SliClRI' TERM DISABILITY The rate for $10,000 in employee term life. =verage (through Minnesota Mutual) remains unchanged at $3.40 per month. The rate for $200 in weekly benefits for Short-tenn Disability =verage (through Westen1 Life) remains unchanged at $9.00 per month. The cost for $300/week max:irnum benefits would be $13.50 per month. 0l'HER The City will =ntinue with it I S cu=ent maximum =ntrib.ltion of $250 per employee per month. The new 1992-1993 rate increases will go into effect with the July 2nd payroll checks. If anyone would like to add or delete Health/Dental benefits, please contact Jane Lund. TP:rk . - . ::::~,"m"," t:l& ( ~ ,m DISCUSSION: ~ S . ... - -" -- ~.~J\~~- .,-" v \ - Moved: {/MYOR .SATHER) COUNCILMBR: (HICKS.) (MALONE) (GROWE) (MAHOWALD) Seconde9.: .(MAYOR SATHER) COUNCILMBR:. (HICKS~ . (MALONE) .(GROWE) (MAHOWALD.l. THAT COUNCIL: VOTE: AYES: NAYS: Hicks.'. Malone Sather Hicks.' Malone Sather Growe Mahowald Growe Mahowald . ABSTAIN: TOTAL: (- -) - , Malone Sather Growe Mahowald Ayes Nays Abs. ALSO PRESENT: Clk/Administrator Attorney Treasurer Engineer Parks Director Pub. Wks. Superint~ndent Planner Dep. Clk I-IMI c.::> ::>c. ..l.L'C.O Dr".~ ..l.1-'",-.(l , ." . , . Telecopy . IIiIRDI Date: G - 2,\'1z..-,. B R W INC. Please deliver the following page(s) to: Recipient: ~'i I~O Company or Agency: ~IL~ Address: Fax#: t~,,;~-1~"?1 This telecopy is being sent by: l'WuUng Name: ~~~ Tt.uu.portation Enfllnoering Studio or Department: . U,b;m o..illn If you do not receive pages, including cover sheet, please contact:_ ~5<{u= 700 11\l:<l S..... So. at 612/370-0700, Ext. ~4lillXl.li1i, MN~lS /~~ 6121a7M?OO Remarks: - b. 6U~~~~ - Fox 612/_1m ~ g.eJl&.i htJO. ~ tMf: MinnIl;:i1pOll$ Ww. PhOlitnP: tfJ.M.~ ~\?':AJS~MJ. 'Dt.rwer 01'1",,", S;m DUgo tr~~-r l~ ti.. I I LAlitA.. ~ SeA"I. ~ ~~V~ ~I)L} , . . ~ oe.ArN<<I,~1m-Q7. ~IAY 29 '92 12:28 BPI,I me,. P.2 - . TJiJ(rSHl;:RSOIJA.RE = DAVII) J BENNETT 700THIRD S'JRl:"'E"tSOLJTl1 MARK G. SWENSON MINNt'..'\POLlS. MN 55<115 Df.NNI$ I,SUTLlFf' PHONE: r6i2) 310-07CO DAVID LCRAHAM PAX, (612) :m.HJ7c rm;r.: f. fA,"!IS lX)N,'\LD W. RINGROSE . ...... '-'_"0-'_"'- . ......______. n.. B . R . W . A R C H I T E C T S . I N C. MEMORANDUM DATE: May 29, 1992 TO: Cathy Iago City of Arden Hills FROM: Dennis Probst RE: Letter to Army from Mayor Sather Regarding Candidate Site for the New Arden Hills City Hall "The City of Arden Hills has begun planning for the design and construction of new City Hall and Public Works facilities. . In the process of identifying candidate sites for these facilities, our City Hall Study Committee identified the Sunfish Lake area of the Twin Cities Ordinance Plant. This is an opportunity for Arden Hills to improve both the quality and image of our facilities as well as an opportunity to begin a new partnership with you as one of the significant members of our community. We are proposing that Arden Hills acquire the southeast corner of the Ordinance Facility with the area effectively bounded by the extension of Hamline Avenue On the west, Highway 96 on the south, Lexington Avenue on the east and a line approximately 100 feet north of the north boundary of the new National Guard Training Facility on the north - exclusive of the property which incorporates the new National Guard Facility (sketch attached). We would like to meet with you at your earliest convenience to discuss this matter and to further explore what we believe can be a mutually beneficial opportunity. Thank you." /cr cc. Jeff Oertel 1568.Z01 2.1 . - AN Af!~~~~Z,;r~I~,~~~~~Ii..~~~~~,~,>>?~~~B~~~L~~t2~E.:" ,1~.c:~ouP 'MA'I 29 '92 12: 28 BRW INCo ..- . .....' .. P:3 ..,. , , I .,. . . . -y..~ ..... . h\31^ '3l:fOHS " .. ."" - ---- -~~ '"f . " t: . /00 , I ;, , X ,. , ill .- . . , , it ., ~. 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I ~ I Q)::l - ~ ~ ~I * ~8 IE ~ ~ u ,,, "-'>0, .. .-..-.-.--..-.-...."".."..,..-...-..-..-..-...-...........".....,................-.."..".. l'. 0 a:! <l) >- "-r--~ ~ [5 ---".-.. -<. u ~ .~ ~ ~i 0" . * 0 ,....,.;;. 0 _.-,-0 .~...._._..._,_,_._. ""'m""_"__'''_''''''''..''''._'''__''_''.''_.'-' ..............."'..".........-.....-,...."'...... ~ H-'--"" .. <r:o.... COUNCIL MINUTES SUBJECT: DISCUSSION: - , r t /.;z1/%6>- ~ . ~ " Moved: Jl;4\YOR COUNCILMBR: . €"LON~~~(GRbWE) - . (MAHOWALD) Seconde\'l: _(MAYOR COUNCILMBR: (MALONE) . (GRPWFf- MAHOWALD) THAT COUNCIL: VOTE: AYES: Hicks_'. Malone Sa ther Malone Sather Growe Mahowald Growe Mahowald . ABSTAIN: TOTAL: ( - - ) . ~. :.... . Malone Sather Growe Mahowald Ayes Nays Abs. ALSO PRESENT: Clk/Administrator Attorney Treasurer Engineer Parks Director Pub. Wks. Supel-iiltq\ldent Planner Dep. Clk COUNCIL MINUTES PAGE SUBJECT: DISCUSSION: (' . -, .-" .. Moved: (!MYOR ,SATHER) COUNCILMBR: (HICKS) .. (MALONE) (GROWE) . . (MAHOWALD) Seconded: .(liAYOR SATHER) COUNCILMBR: (HICKS) ~ROWE) --:5 (MAHOWALD) . ." ., THAT COUNCIL: - -/6 ~d2r VOTE: AYES: NAYS: .Hicks.'. Malone Sather Hicks'" Malone Sather Growe Mahowald Growe Mahowald . ABSTAIN: TOTAL: ( - - ) :.: ~ . Malone Sather Growe Mahowald Ayes Nays Abs. ALSO PRESENT: Clk/Administrator Attorney Treasurer Engineer Parks Director Pub. Wks. Supel'irit!jpdent Planner Dep. Clk ----- ~- ()~~ . ARDEN HILIB CITl!' <:ool<<:IL ~ICIi MEI!IrI!G <:ool<<:IL CIU\MBERS lD!IIlAY, JllNE 15, 1992, 4:00 P.M. 1. CALL 'IO ORDER/ROLL CALL. 4:00 P.M. 2. AGENDA AOOPI'Ioo. 3. DIsaJSSION OF CITY ACMINISIRA'IOR POSITIoo - JIM BRIMEllER 4:00 EM (A'ITACllMENI'S) 4. DISCUSSIoo WI'IH TIM NELSON - E.'IIERESI' GROUP 4:30 EM (NO ATl'ACHMENI'S) 5. DISCUSSION OF DENNIS FOSl'ER DEVEWR1ENI' WHAT-A-RAO;1.lET sroRI'S CUJB 5:00 EM (A'ITACHMENTS) . 6. DIsaJSSION WI'IH JIM CASSERLY 00 '!HE CDITAGFS 5:30 EM (ATl'ACHMENI'S) 7. DIsaJSSION 00 FINANCIAL ISSUES - TERRY rosr 6:00 EM (ATI'AalMENTS) A. CHARl'J:2l.BLE G1\MBLlliG B. BUDGET PROCESS C. DISABILITY INSURANCE/FRlNGE BENEFITS 8. DISCUSSIoo WI'IH BRW ARaiI'I'ECI'S 6:30 to 7:30 EM (NO A'ITACllMENI'S) 9. COUNCIL o:HlENI'S. . . CITY OF ARDEN HILLS MEMlJRANDUM I:WrE: .JUne 12, 1992 TO: Mayor and city council ~ (fJ!--./ FRCH: catherine J. Iago, Acting Clerk 1\dmini.strator SUBJECT : City 1\dmini.strator Position Attached is the existing city Administrator position description, three job descriptions from other camrmmities, the 1992 Pay Plan, and the Organizational Chart discussed at a previous worksession meeting. Mr". Brimeyer will be present to discuss the proposed job search for the Administrator, and receive Council direction relative to the position description, qualifications and salary. crrjts M92-190 . . , ~ . POSITION RESPONSIBILITY DESCRIPTION DATE: AUGUST, 1989 FUNCTIONAL CLASSIFICATION: ADMINISTRATION POSITION TITLE: CITY ADMINISTRATOR ------------------------------------------------------------------------- PRIMARY OBJECTIVE: plans, directs and coordinates the administration of municipal government in Arden Hills and implements policies, executes ordinances and other directives of the City Council. MAJOR RESPONSIBILITY AREAS: Prepares agenda for Council meetings, ensures Council reports are informative and accurate and attends City Council meetings, maintains City's official records and makes policy recommendations. AdministerS City's personnel program which includes: compensation plan, labor negotiations, personnel policies/ordinance, recruitment/selection, grievance/progressiVe discipline and employee . development program. Acts as City's chief financial officer by preparing and submitting annual budget for Council approval, oversees City's investment program, ensures proper accounting procedures and record keeping and develops capital improvement plan. Directs and coordinates administrative and operational functions of the City to ensure that all departments are providing efficient and effective service. KeepS the Council informed on an on-going basis of City issues and concerns and informs the Council about regional, state and national concerns that impact the City. QUALIFICATIONS: ._- College graduate, preferablY in businesS or public administration. Graduate level training desirable. S years experience in municipal administration. SUPERVISION/ACCOUNTABILITY: Supervises administrative staff, Directly accountable to the City Council. . STAFF AND PUBLIC CONTACT: Frequent contact with all City staff and public. . TASK STATEMENT . Major Responsibility Areas: 1. Prepares agenda for Council meetings, ensures Council reports are informative and accurate and attends City Council meetings, maintains City's official records and makes policy recommendations. a. Attends all scheduled or special Council meetings to obtain Council direction and presents and interprets results being achieved by departments. b. Complies, coordinates and distributes agenda materials so that reports can be studied by Council members prior to meeting discussion and presentation and makes policy recommendations. c, Ensures that City records are kept and maintained such as Council minute books, ordinance books and finance reports. d. Performs or delegates all duties required of a City Clerk to ensure compliance with Statutes and Plan A form of government. c. Supervises the conduct of all local elections. 2. Administers City's personnel program which includes: compensation plan, labor negotiations, personnel policies/ordinance, recruitment/selection; grievance/progressive discipline and employee . development program. a. Establishes and maintains an effective compensation plan and administers benefits program. b. With Council approval, plans, coordinates, develops and directs personnel programs, policies and procedures which will result in the effective and efficient utilization of all employees. c. Represents City Council in the negotiation of the union contract and represents Council in grievance matters resulting from interpretation of the union contract and personnel ordinance. d. Maintains a personnel system which includes files, performance appraisals and records of accomplishments or disciplinary actions. - e. Recruits and selects employees as needed by the organization consistent with state and federal AA and EOE laws. 3. Acts as City's chief financial officer by preparing and submitting annual budget for Council approval, oversees City's investment program, ensures proper accounting procedures and record keeping and develops capital improvement plan. . a. Develops the annual budget for presentation in appropriate form for review and consideration by the City Council. b. Oversees administration and control of all financial matters. c. Submits an annual audit report and capital improvement plan for Council approval. , . d. Ensures that proper control reports are developed and used and supervises effective operation of purchasing. e. Ensures effective investment of available funds and proper accounting practices to control financial assets and provides for financial planning. 4. Directs and coordinates administrative and operational functions of the City to ensure that all departments are providing efficient and effective service. a. Evaulates on a continuing basis~ the organization, administration and services being rendered by the various departments of City government to determine whether results are being achieved. b. Makes or recommends organizational changes in staffing, as well as other changes in administration as may be justified to assure a high standard of performance is maintained. c. Keeps informed on all aspectes of municipal government and researches improved methods of administration for possible implementation in Arden Hills. d. Directs the affairs of the City in conformance with federal, state and City laws. . e. Works with City Council and department heads in establishing goals and objectives designed to achieve and maintain the desired level of service for community residents. 5. Keeps the Council informed on an on-going basis of City issues and concerns and informs the Council about regional, state and national concerns that impact the City. a. Represents the City Council and/or maintains liaison in metropolitan and state government-related activities and represents the City Council at public meetings outside the community. b. Keeps the City Council informed on all important developments which may affect the administration of City government and which they will need to know to perform effective~ as Council members. c. Serves as the City's public information representative, confers with media, speaks at schools, civic groups, and other organizations. . " .. .., . Approved Aug., 1991 POSITION DESCRIPTION CITY OF FALCON HEIGHTS POSITION: city Administrator OBJECTIVE AND SCOPE Plan and direct the administration of city functions to ensure efficient municipal services and development in line with objectives and general guidelines established by the city Council. Supervises the municipal office, administration of all departments placed within his/her jurisdiction which includes city clerk responsibilities, treasurer, parks and recreation, building inspection, public works and administrative functions of the fire department. Responsible for coordinating the city activities with the city attorney, engineering consultant, . Roseville Police, and planning consultant. Works in an advisory capacity with the commissions and committees. Operates with considerable discretion in normal administrative functions and in implementing policies of the Council. Responsible for effective recommendations in areas of policy, staffing, expenditures, etc. where Council action is required. RELATIONSHIPS Reports to: city Council Supervises: city Accountant Foreman, Maintenance and Public Works Park and Recreation Director Community Services Fire Chief in Administrative Functions of the Dept. Fire Marshal City Clerk Inspectors Through these subordinates, he/she indirectly controls additional city employees Coordinates: city Attorney Engineering Consultant Planning Consultant Roseville Police . , . ... . - SPECIFIC RESPONSIBILITIES 1- Direct and control all municipal operations. a. Works closely with subordinate managers to plan and coordinate their functions. b. Follows up to ensure effective service to the public and efficient conduct of all municipal affairs within overall city objectives. 2 . Develop and ensure effective utilization of administrative planning, budgeting, and control procedures. a. utilizes input from department managers to develop plans. - b. Prepares annual budgets for council decision. c. Controls expenditures within approved budgetary guidelines. Includes ensuring proper control of all purchasing functions. . 3. Develop and maintain an effective organization. a. Evaluates operations and makes or recommends changes in organization structure to best achieve city objectives. b. Supervises the selection of all employees, ensures proper employee utilization and motivation, reVlews employee performance, recommends salary treatment, and determines replacement needs. c. Recommends employee benefit and personnel policy programs and coordinates all phases of personnel administration. 4. Ensure effective management and utilization of all physical assets. a. Plans for replacement or upgrading of equipment and other assets as appropriate. b. Directs efficient use and proper care of all existing assets. . I . -! > '~ . 5. Ensure effective management of financial assets. a. Oversees all fund management and investment activities. b. Ensures effective accounting practices to properly control financial assets and provide accurate information for financial planning. c. Develop plans to meet current and future financial needs. 6 . Provide effective support to the city council. a. , Oversees all functions of a city Clerk under the Plan A form of municipal government. b. Prepares agendas and supporting data for all council meetings, relieves the council of other. administrative work, and implements council decisions. c. Provides reports, recommendations, and advice as appropriate to keep the council fully informed and assist its policymaking role. . 7. Ensure proper public relations. a. Ensures that public services are efficiently provided and that all complaints are effectively handled. b. Directs communications activities to keep the public informed of city plans and operations. c. Represents the city in local, regional, and state meetings and functions as delegated by the council. 8. Keep abreast of developments' in municipal operations and administra ti ve techno'logy. a. Research improved methods for possible use in Falcon Heights. b. Cooperate with other governmental units and muriicipalities on matters of mutual interest. c. Assist and coordinate with various city commissions as appropriate. . d. Cooperate with the state Fairgrounds and university Administration. 9 . Perform other duties as delegated by the councilor as . necessary to effectively manage city affairs and achieve council objectives. , , ~ CITY OF 'NVER 8150 BARBA~~~E HEIGHTS liNER GROVE HEIGH ENUE . TS, MN 55077 ADMINISTRATION CITY ADMINISTRATOR POSITION SUMMARY The Administrator is the chief administrative officer of the City. To the extent allowed by law, and unless otherwise circumscribed by ordinance, resolution or Council directive, the Council hereby delegates to the Administrator full authority to exercise ministerial and administrative powers consonant with the Administrator's duties and responsibilities. The Administrator shall be directly responsible to the Council. The Administrator's duties and responsibilities shall be in the areas of: 1 ) supervision . 2) enforcement and implementation 3) coordination 4) personnel officer 5) budgeting and financial monitoring 6) council advisor The Administrator shall have the necessary and incidental powers to perform fully the duties and responsibilities set forth below. The Administrator shall also be the City Clerk and perform the functions of Clerk for a Minnesota statutory city operating under Optional Plan A. The Administrator's duties and responsibilities set forth below, are not all inclusive; the Administrator shall perform such other duties as may be prescribed by statute, ordinance, Council resolution or Council directive. . . CITY ADMINISTRATOR - ADMINISTRATION Page 2 The City Administrator is directly accountable to the City Council. SUPERVISION 1 ) The Administrator shall supervise all department heads and shall coordinate the activities of consultants. 2 ) The Administrator shall supervise the management and operation of the Department of Administration. 3 ) The Administrator shall ensure the development of an effective municipal organization. To this end, the Administrator shall: a) when necessary or advisable, recommend changes in organizational structure; . b) work with department heads to ensure effective job descriptions and classifications; c) monitor the effective utilization of employees; d) recommend staffing addition or deletions; e) recommend salary levels; f) recommend employee training activities; g) implement staff reorganizations or staffing changes made by Council; h) coordinate operation of the City aepartments. 4) To the degree deemed necessary, the Administrator shall monitor all consultant contracts and other contracts to which the City is party to ensure compliance. S ) The Administrator shall ensure that City buildings and other physical assets are effectively managed. . I. CITY ADMINISTRATOR - ADMINISTRATION Page 3 6 ) In accord with Council guidelines or directives, the Administrator may develop and issue administrative and ministerial procedures necessary to insure the proper functioning and coordination of City departments. These procedures shall be effective when issued and shall continue to be in effect until rescinded by the Administrator or by express Council action. The procedures shall not contravene stated Council policy nor shall the procedures contravene statute or ordinance. ENFORCEMENT AND IMPLEMENTATION 1) The Administrator shall be responsible for the enforcement of all . laws, ordinances, Council resolutions and policy directives issued by the Council. 2 ) The Administrator shall implement the Council directives and the stated Council policies. COORDINATION 1 ) The Administrator shall ensure that the recommendations of advisory bodies, commissions and task forces are presented to the Council. 2) The Administrator shall ensure that the Council's requests of or directives to advisory bodies, commissions and task forces are channeled to those entities. 3 ) The Administrator shall channel necessary information to advisory bodies, commissions and task forces. . I . CITY ADMINISTRATOR - ADMINISTRATION Page 4 4 ) The Administrator shall ensure that communications from the public or other governmental bodies to the Council are channeled to the Council. S ) The Administrator shall coordinate City programs and activities as authorized by the Council. 6) When requested, the Administrator shall meet with state, federal and county personnel. 7 ) The Administrator shall represent the City at such official Or semi-official functions as may be directed by the City Council. PERSONNEL OFFICER (e 1 ) The Administrator shall be the chief personnel officer of the City. 2 ) The Administrator shall be responsible for the implementation, enforcement and monitoring of the City's Personnel Policy as contained in the City Code and as may be interpreted Or further defined by applicable City Council resolutions. 3 ) The Administrator shall advise the Council as to the need for new employees. 4 ) The Administrator shall recommend job descriptions for new positions and the Administrator shall recommend necessary or advisable revisions for existing positions. 5 ) In accordance with Council guidelines, the Administrator shall establish procedures for seeking job applicants and interviewing finalists for open positions. . ------- . CITY ADMINISTRATOR - ADMINISTRATION Page 5 6 ) The Administrator shall recommend a person to fill employment positions. The ultimate authority to appoint or remove an employee shall be that of the Council. 'J, 7 ) The Administrator shall periodically review the performance of employees and shall recommend promotions, transfers, demotions, or terminations. 8 ) The Administrator shall annually review employee salaries and recommend salary adjustments. 9 ) When directed by the Council, the Administrator shall represent the City in contract negotiations with bargaining units under the Minnesota Public Employment Labor Relations Act. I. 10) The Administrator shall recommend personnel rules and regulations , and shall recommend changes in working conditions to the Council. 11 ) For purposes of the Minnesota Data Privacy Act, the Administrator shall be the "Responsible Authority". 12) With respect to maintenance of personnel records, the Administrator's responsibilities shall be as set forth in the City's Administrative Code. BUDGETING AND FINANCIAL MONITORING 1 ) The Administrator shall submit to the Council a single consolidated budget document which shall include statements relating to projected revenue and proposed sources, and all proposed expenditures to be made and obligations to be incurred by the City in the forthcoming fiscal year. . ,e ! CITY ADMINISTRATOR - ADMINISTRATION Page 6 2 ) The Administrator shall administer and monitor all provisions of the adopted City budget. 3 ) During the fiscal year, the Administrator shall recommend budget modifications, if necessary or advisable. 4) On a regular basis, the Administrator shall report to the Council on the status of the City's finances and the status of the budget. S) The Administrator shall recommend appropriate adjustments to maintain costs consistent with operating budgets and objectives. 6 ) The Administrator shall recommend financing plans to accomplish . major capital improvements. 7 ) The Administrator shall be responsible for the application of approved financial and accounting procedures and methods within the Department of Administration, S) The Administrator shall recommend accounting and financial procedures to be adopted and employed in all City departments, 9 ) The Administrator shall be responsible for ensuring that specifications are prepared for all items for which competitive bids or quotations are required. The Administrator shall recommend such specifications and be prepared to advise the Council on the advisability of the specifications. The Administrator shall monitor the competitive bidding processes, shall, when deemed advisable, attend bid openings, and shall recommend award of contracts. . . CITY ADMINISTRATOR - ADMINISTRATION Page 7 10) The Administrator shall develop and ensure effective utilization of appropriate budgeting and administrative planning and control procedures. The Administrator shall work with department heads to monitor department budgets and to ensure that proper budget control procedures, approved disbursements procedures and purchasing procedures are established and followed. 11 ) The Administrator shall monitor the investment of City assets and shall make recommendations relating thereto. 12) With respect to purchasing, the Administrator shall act as chief purchasing officer and shall have the responsibilities established by that section of the Administrative Code dealing with Purchasing . Procedures. COUNCIL ADVISOR 1 ) The Administrator shall recommend changes, amendments or repeal of existing ordinances whenever necessary or advisable. 2 ) The Administrator shall attend and may participate in discussions at all meetings of the City Council, unless excused from attendance by the Mayor. The Administrator shall also attend such other meetings of official City bodies of commissions as may be directed by the City Council. 3) The Administrator shall keep informed and shall inform the Council on intergovernmental matters affecting the operation of local government, such matters to include: a) Court decisions where the City is a party . b) County, state and federal requirements ! . CITY ADMINISTRATOR - ADMINISTRATION Page 8 c) State or federal administrative rules 4 ) The Administrator shall advise the Council as to the future needs of the City. The Administrator shall recommend long-range programs and capital improvements. 5) The Administrator shall be responsible for preparation of the Council agenda. 6) The Administrator shall advise the Council on all significant matters which require Council action or approval. The Administrator shall insure that such matters are presented to the Council. 7 ) The Administrator may present recommendations concerning the . policies and objectives. I 8) The Administrator shall keep informed on developments in the public administration field and shall advise the Council on matters relating thereto. CLERK The Administrator shall be the City Clerk and shall have the obligations and powers of a City Clerk pursuant to statute and ordinances in conformity therewith for a statutory city operating under Optional Plan A. Adopted by City Council: August 14, 1989 . " ~ . CITY OF MENDOTA HEIGHTS, MINNESTOA CITY ADMINISTRATOR RECRUITMENT PROFILE The Community Mendota Heights is one of the Twin Cities premier suburbs, offering high-quality residential and business areas. Per capita incomes and average property values are among the highest in the area, but homes in the more moderate price- bracket are also available. While the emphasis has been on maintaining large-lot, spacious development, the community is unique in its convenient location and highway access. Both I-35E and 1-494 traverse the City. Major employment centers (downtown Minneapolis, downtown st. Paul, and the Bloomington 1-494 "strip", including MSP airport, are virtually minutes away). while Mendota Heights has traditionally been thought of as a st. Paul suburb, the City is becoming more cosmopolitan, with residents employed in many parts of the metropolitan area. At the same time, the Minnesota and Mississippi Rivers form a natural green belt around the community, enabling it to maintain a quiet, private way of life. . Citizens place a high emphasis on parks, open spaces, and recreation areas, as evidenced by their recent approval of a $3.4 million parks bond referendum. Excellent schools and a well-educated populace complement the traditional but progressive character of the City. civic pride and aesthetic excellence are hallmarks of Mendota Heights. Despite its residential heritage and character, the City does welcome high-quality business development, and approximately 25% of the land has been reserved for that purpose. Most of that land is owned by United Properties, one of the Twin Citie's foremost developers of business properties. Recent locations in the Mendota Heights Business Park include Solvay Animal Research Laboratories, Northland Insurance, the American Registry of Radiological Technicians', and a Courtyard by Marriott hotel. Cray Research (the supercomputer giant) has long maintained facilities in the community, and intends to relocate its corporate headquarters here in the near future. Mendota Heights currently has 9,000 residents, up from about 7,200 in the 1980 census. While most of the land in the community is now platted, significant new construction of single- and multi-family homes should continue for the next . few years. The ultimate ,population projection is in the range of 12,000 - 14,000. There are currently 3,000 jobs in Mendota Heights, and that number is expected to grow to around 6,000 by the year 2000. Land area is 10 square miles. -- .. .. . The City Government Mendota Heights is organized under Minnesota statutes as a Plan A municipal corporation. The Mayor and four Councilmembers are elected at-large on a non-partisan basis for overlapping terms. Administrative responsibilities are carried out by the City Administrator, under a resolution adopted by the Council in 1972. Mendota Heights is recognized by the International city Management Association under the General Management (GM) category. The city employs 39 full-time employees, along with several part-time and seasonal personnel. An organization chart is attached. The current operating budget is just over $3 million. City functions include Administration, Police, Volunteer Fire, Engineering, Street, Parks, and utilities. The position of Administrative Assistant to the city Administrator was added in 1989, with that person having particular responsibilities in the areas of recycling, planning, and personnel, as well as providing general support to the Administrator. In its Vision statement, adopted in 1986, the City council states: . The mission of the Mendota Heights City government is to preserve and enhance the quality of life in the community and to plan, direct, and implement orderly growth. This is achieved by encouraging and fostering: 1. Community identity, citizen participation, and open access to government decision making. 2. High quality, cost effective public service. 3. Conservative financial management and low tax rates. 4. Development and maintenance of parks, trails, and open space. 5. High standards of diversified housing stock with continued emphasis on single-family homes. 6. Further development of well-designed commercial and office projects. The Mayor and Council follow a "team approach" with staff and advisory Commissions in carrying out this mission. Periodic retreatjteambuilding sessions are held to identify projects and organizational issues. An updated list of target goals is maintained, with periodic reporting of progress by the City Administrator. With the Mayor and Council all employed full-time in other . positions, they rely heavily on the staff to tend to the administration of the City. Council also looks to staff to identify and analyze pending issues, providing alternatives and well-thought out recommendations for consideration and policy action by the Council. . . In 1985, the management staff adopted a statement of Management Philosophy. They follow the participatory, public service oriented style of management articulated in that philosophy. The city's major capital facilities are in excellent shape. A new city Hall was constructed and occupied one year ago. The building reflects the community's emphasis on high- quality development, and the residential character of Mendota Heights. Current or Pendinq Issues Park Development and Maintenance Recreation Programming Residential/Commercial/Business Development Growth Management Infrastructure Replacement Resolution of Noise Problem with MSP Airport Water Contract with city of st. Paul The Position . In filling the position of City Administrator, the Mayor and City Council are seeking a person with demonstrated commitment to the highest ideals of public service and professional city administration. Specific qualifications, capabilities, and personal qualities are as follows: Oualifications Master of Public Administration, or closely related degree. 3 - 5 years progressively responsible experience in professional city management, preferably as a manager/administrator, or assistant. Generalist education and exposure to a broad range of municipal management issues. Professional Capabilities Excellent communication skills - verbal and written Working Knowledge of Municipal Operations - high credibility Budgeting/Financial Management Knowledge of personnel (labor relations) practices, laws, and issues (including comparable worth) . Working knowledge of Municipal Law Familiar with computer applications to municipal services Intergovernmental Relations - Regional, State, and Federal - . informed and able to represent City's interests Working Knowledge of Land Use Planning Procedures Analytical - good problem solver Information gatherer/processor ~ " . Personal Oualities Good people skills - Able to work effectively with people of differing opinions and personalities strong Public service Orientation High Honesty and Integrity Versatile and Flexible Problem Solver Open-Minded - open to new ideas Creative and an Idea Person - willing to promote new ideas Proactive Willing to continue with Existing/Identified Projects Dependable - Good Follow Through on Projects and Assignments Results Oriented, a lfDoerll, Not Bureaucratic Good Delegator Comfortable with a "Team" Approach to Governance and Management strong Commitment to Professional Development of Self and Staff Willing to Establish Residence in Mendota Heights Beqinninq Salary $ 45,000+, depending on qualifications and experience. . Application Application is by resume with three references sent to: Mayor Charles Mertensotto City of Mendota Heights 1101 Victoria Curve Mendota Heights, MN 55118 by Friday, September 29, 1989. The City is an Affirmative Action/Equal Employment Opportunity Employer. The City also participates in the ICMA Retirement Corporation. . . ARDEN HILLS - 1992 PAY PLAN Administrator 110 $42,024 $44,651 $47,277 $49,904 $52,530 Public Works Sup!. 90 34,608 36,771 38,934 43,260 Parks Director 89 34,237 36,377 40,657 42,797 Accountant 88 ,11111.1~..'...'...i8.1~. ~.....'.I 35,983 38,100 40,216 42,333 . . . .... . Deputy Clerk 81 31,271 33,225 35,180 39,089 Program Supervisor 76 31,255 33,094 34,932 36,771 Public Work Foreman 58 22,742 24,164 25,585 27,007 28,428 Public Works Maint 56 22,001 23,376 24,751 26,126 27,501 . Sr Acctg Clerk 56 22,001 23,376 24,751 26,126 ParkS Maint 53 20,888 22,194 23,499 24,805 26,111 Admin Secretary 52 20,518 21 ,8oolig~;R~?i 24,365 25,647 Intermed Acct Cierk 48 19,034 20,224 21,414 22,603 Receptionist 46 18,293jlllii~,i~~~11 20,579 21,723 22,866 * Administrator is at step 3.5-Current pay is $47,174 PW Supt-Current pay is $40,000 Pks Dir-Current pay is $37,398 -, Acct-Current pay is $32,884 Dpty Clk-Current pay is $36,067 Prgm Sup-Current pay is $28,558 PW Foreman-Current pay is $29,910 PW Maint-Current pay is $28,662 Sr Acct Clk-Current pay is $26,707 Pks Maint-Current pay is $27,602 Admn See-Current pay is $22,422 . Int Acct Clk-Current pay is $23,108 Recpt-Current pay is $18,866 . Ii ~ ~I - tiJ 15 ~ ~ t:1 il ~ i ~i ~ i II Ul - ~~ I~ ~~ il ~ a~ ~ . ~Q L ~ Ul ~~ -II ~ ~ II ~ t ~I 8 ~I - h~~ I !Ul ~ - ~ N ~ ~I 8~ T-~ ~ ffi i'!i ~ ~ ~ - ~ ~! ~~ 1 ~ ~! ~ : ~II -!~ 1 '-~- ~ [j ~ ~ p< ~. 0: n I ~ " ~"I ~~ =- ~ _8~ ~-~ ~ n ~~ f2 .1 - ~ i . ~ Q p<t-:i :> - -.- . . CITY OF AlIDEN HILLS MEMCm\NOOM D1lTE : June 12, 1992 TO: Mayor and City Council ~ :FIlCH: Catherine J. raga, 1\cting Clerk .l\dmi.ni.strator G SUB.JEX:T : Dennis Foster, What-A-Racquet sports Attached is a =nfidential letter and affidavit from Thomas P. Balyk, Attorney for Dennis Foster, to Attorney Filla received on June 12, 1992, regarding the development of What-A-RaD:lllet Sports Chili. Mr. Filla will be present at the 6-15 worksession meeting to discuss this item and will have his response to this information on Monday. CJI/ts M92-191 . . FAX 612 487 208.3 Ba1,'l, & Wiseman IiIJ 001 013/12/92 12:28 n. __ __ r . BALYK & WISEMAN ATTORNEYS AT LAW AN ASSOClATION NO't t\ PAIc:rNEltSHIP FIVE EAOT COUNTY ROAD II SUITE FIYE: , ST. PAUL, MINNESOTA 55117 THOMAS P. BALYK' (GI2) 4Hl-1991 "IlEAL PROI'l'RTY SPECIALIST. CURT" M. WIS8W\N C81'rmED UYTHE MINNJ'.\(lTA DAVI(l J. SC~IOENECI:ER STKn, UARM,OClATI(lN FACSIM:I:T.E 'I'RANSMT'l'TAL COVER SHEET FA...X; ({d2) 4~7.:.!:u.!!:j The information contained in this facsimile message is privileged an~ confidential and is intended only for the use of the individual or entity named below. If you, the reader of this message, are not the intended recipient or the employee or agent responsible for delivering it to the intended recipient, yeu are hereby notified that you are strictly prohibited from disseminating, distributing or copying ~~e information contained in this facsimile message. If you have received this message in error, please notify us immediately by telephone and return the original message to us at the above address via the U.S. Postal Service. . DATE: G -12 -92 THill: l.:20pm THE FOLLOWING PAGES ARE EEING FAXED TO: H"-"'" kR-lf1~~ PIRM: (\-hJ of den t-I'ills FAX NO.: 0 -33-7631 TELEPHONE NO.: FROM: NAME: mOrTlOS p B:ti \1 r,," Its:{ v FILE NO.: QO-13l- CO:} )n TOTAL NUMBER OF PAGES: if Original to follow by mail . - v Original not to tollow by mail (including cover sheet) SPECIAL INSTR.UCTIONS/CO~NTS: l1:e-- fu lLowir:3 '1 S 0.. (2)~ oj: +he leJier ill) cL AffldCLVd- of Dc:hll( S T'os1eJr Sen+- . 10 eJerorne -r-; II Q, . AHor r1tl.l Q+ lcuN J .J If any diffiCUlty in receiving this transmission is experienced, pIe.' ''''\J.l (612 \ 'iR7-1 ClC)l . - BALYK & WISEMAN . ATTOR..NEyS AT LAW AN AS50CL.\TION NOT A PA..R'fNERSHH' FrVE EAST COUNTY RO-'J) B SUITE FIVE ST. PAUL, MJ1'<tJESOTA 55!!7 TBOMAS P. BAL\1(- (612) 437-1991 'REAl. PROPERTY SPECIALIST, CURTrS M. WISicMA..'l CERTIFIED BYTHE MINNESOTA DAVlQ J. SCHOENECKER STATE B.'-'< ASSQCLHION FA..'(: (612) 4S7~2083 June 12, 1992 Jerome Filla, Esq. 50 East Fifth Street Suite #300 St. Paul, MN 55101 RE: What-A-Raoquet sports Club Our File No. 90-131-004 Dear Mr. Filla: . On June 8, 1992, I appeared before the city Council and requested that the Council clarify and place on the Council agenda for June 15, 1992 the approvals necessary for What-A- Racquet sports Club previously approved at the Council meeting on December lOr 1990. In reviewing the December lOth minutes, it appears that a site plan was approved with some additional conditions. At that meeting the Council did not approve issuance of a building permit, but did require the developer to comply with six additional items. Those items are set forth at the end of the December 10, 1990 Council minutes, page 5, set forth as items A through F. Therefore, I would request that (1) the City Council exclude the Dennis Foster project from it's proposed construction moratorium; (2) the City Couricil approve the issuance of a building permit Upon completi'on of those six items; and (3) the city Council instruct the staff that upon presentation of items A through F, a building permit be issued. Dennis Foster has expended in excess of $114,000.00 in Costs directly related to the acquisition atld approval of this project. At the point at which Mr. Foster received the City approval in December 1990, his main hurdle was Obtaining finanCing. On April of J.992, Mr. Foster received a mortgage cOlDmitment from Greater Memphis Mortgage, Inc. The mortgage colllllli 'bnent would provide the requisite funds to complete the project. He . then initiated a conversation with Kathy Iago and John Bergly. Mr. Foster was told that the appropriate procedure to be foLLowed _~_."_ .~ ,'.....,..........,u ~l)l)v - . - - Jerome Filla, Esq. . June ~2, 1992 Page 2 would be to plaCe his project on the Planning Commissions agenda. He reviewed the financing commitment schedule and determined that he would be able to timely close and comply with the City request for Planning co:mmission approval. He fully mq>ected at this point that the approval was merely a formality required to reinstate his "suspended" project. The suspension occurred as a result of his conversation in December, 1991 with City staff which led him to believe that no further extensions would be required if he agreed to "suspend" his application. The City never indicated to Mr. Foster that he would be required to fully reapply for building permit approval. Mr. Foster placed calls to the city and was told to reapply for an extension and did so, as requested. He was contacted by Mr. Bergly and was informed that an.extension was not necessary, but should have the Council in effect "suspend" his proposal. Therefore, Mr. Foster thought that he had come to an agreement with the. City, and did not even attend the December 30, 1991 Council meeting at which this. proposal was discussed. Therefore, Mr. Fos.ter continued in his efforts to obtain a loan collllDi.tment. . At no time prior to the Planning Commission meeting on June 3, 1991 did Mr. Foster receive any indication whatsoever of a pending moratorium or any indication that his project would not be approved, even though he had nUlllerous contacts with the City staff. During the month of June he had expended $22,000.00 of non-refundable inonies attelllpting to meet the financing commitment closing date of June 12th. If Mr. Foster had expected anything but flJ.Il Council approval, he surely would not have expended these sums. These expenditures are documented in the attached affidavit of Mr. Foster. It appears that the December 10, ~990 meeting did not authorize the issuance of a bUilding permit, but did approve the site plan. In reviewing the ordinances and Mr. Bergly's melllO of December 30, 1991, in which he cites section 7(e), he has lumped together a number of projects. However, I believe that the memo did not state the correct code requirements. In section 7(e) of Mr. Bergly's memo, it references building permit issues, and apPears that the Council's December 10, ~990 meeting can authorized the site plan and not the issuance of a building permit. It contemplated Mr. Foster's compliance with additional items. This is inconsistent .with Mr. Bergly's and the council's position that the permit expired in December of 1991, since the pemit was never authoriZed to be issued. Therefore, no extension was ever necessary, and no action was required by the . Council on December 30, 1991. ~......~.... '"'" "..L">~IUQ,U 4:':.J l.Jl)':l; .. H"" _ ~ ~ M ~. _ ... ~ .~ Jermone Filla, Esq. . June 1.2, 1992 Page 3 Mr. Foster's position is that he attempted to contact the City staff, and that the City staff provided hint with ilnproper advise which he relied on and therefore, based on -that relianoe, believed he. had a vested right to that building permit if he complied with itffills A through F of Council meeting of Decelllber la, 1.990. At no tilne did the City state that Mr. Foster's project was dead. The March 9, 1.992 letter stated that his request for an extension had been denied which was not appropriate, and was not supported by the actions in the December 30, 1.991 Council meeting. My position is that Mr. Foster did everything possible to work and Cooperate with the City, and expended $124,000.00 based on his expectation and belief that he had a right to obtain a building permit if he complied with the items set forth in the Deoel!lber 1.0, 1.990 Council Motions. I believe that the section of Mr. Bergly's report in December 30, 2991, is further an example of confusion as to the Council action. Therefore, I respectfully request the City to approve this matter. . sincerely, BALYK&~ ~7iJ/!t-V Thomas P. Balyk Attorney at raw TPB/~ Enclosures cc; Mr. Dennis Foster Ms. Kathy rago . """ ~. .~.... STATE OF MINNESOTA. ) ) ss. AFFIDAVIT OF DENNIS FOSTER COUNTY OF RAMsEY ) . Dennis Foster being first duly sworn on oath deposes and states: My name is Dennis Foster and I alll the developer of What-A- Racquet Sports Court, Inc., proposed to be builtin Arden Hills on Lexington Avenue North. In December of 1990, r received approval for a site plan from the City of Arden Hills city Council. The approval contained six enumerated stipulations that I had to comply with prior to the issuance of a building permit. All six items I was, and still am confident can be satisfied. The only reason I did not immediately proceed with the project was that I had not yet received a finanCing commitment from a lender. . From December of 1990 until April of 1992, I approached nearly three hundred financial institutions; including commercial banks, savings and loans, pension funds, insurance companies, private lenders, consortiums, and brokers. I fully believed that the site plan approval given in December of 1990 was still valid until December 1991. In discussions prior to that approval in December of 1990, I had Spoken with the city on numerous occasions, and there were a number of small issues that we negotiated or modified on the original site plan to take care of various concerns, but it was always a matter of fine tuning the proposed site layout. There was never any discussion or indication t:hat the city may d:isapprove the entire concept. It . was simply a matter of conforming to the regulations and concerns of the City employees. 1".-\" 612 481 2083 Baly){ & Wiseman i4]oo6 lJ6/1U82 12::n After the December, 1990 city council approval, I spent . approximately $35,000.00 between December of 1990 and December of 1991. These expenses were in the form. of carrying expenses for debt, architectural expenses, expenses accrued by the City processing with their engineers and other staff, Rice Creek Water-shed District approval, and procedures for securing financing. In December of 1991, I made formal application for an extension as per city direction. I was told by Kathy Iago that my written request must be submitted at least three days prior to the December 30th city council Meeting. I submitted my written request on December 15, 1991. Just prior to the Council meeting, for which my site plan was scheduled for review, I was contacted . by John Bergly with an alternative suggestion of simply "suspending" the site plan. That was the te= he used; IIsuspendingll. He stated the Council would not act on it either way; neither approve or deny it. It would simply be carried in a "suspended" state until I could receive financing. There were two other projects in a very similar situation and his suggestion was based on the fact that the city did not want to 'spend time and money approving site plan extensions for which financing may not be available. This made sense from my point of view, in that my project was similarly situated. Mr. Bergly stated that once approval was obtained, the site plan could simply be "reinstated", and I could proceed on with the project from where I had left off and not have to "reapply". . 2 _ _._.' n ,. ,._~~..._u 'i::J')') I .. His suggestion made sense to me. He stated he would handle . the withdrawal of my formal extension request. Therefore, I did not go to the December 30, 1991 Council meeting. In the following three months I spent approximately another $7,000.00, mostly in the form of charges for debt previously incurred and in costs incurred in continuing to seek financing. In April of 1991, I received a letter of commitment from a commercial lender in the amount I deemed necessary to proceed with the project. I notified Kathy Iago at the city of Arden Hills that I was ready to get a building permit. Kathy rago said the project would be put on the June 3, 1992 Planning Commission agenda. I was surprised to hear that I would have to go back to the Planning CommiSSion, because I was simply extending site plan approval. This did not make sense to me, because had I extended . site plan approval in December of 1991, instead of "suspendingll it as John Bergly suggested, I would not have been scheduled for Planning commission review in December of 1991. still, I had no reason to believe that there would be any problem. Nobody from the Planning Commission mentioned any problems or concerns with the project. I even talked with Dale Hicks, on approximately May 18, 1991, in regard to Park Dedication Requirements, as that is one of the items I needed to complete prior to the issuance of a building permit, and he did not mention that there were any problems. I came to the conclusion that I could proceed as indicated by City employees without any problems; and committed . another $16,000.00, mostly in the form of loan collllI1itJnent fees, 3 FAX 612 ~87 208:] lJa13'k & Wiseman 141 008 f.Io/I;;:/H~ 1;;:; ;J-' architectural fees, and attorney fees. . During the June 3, 1992 Planning COmmission meeting, the City lIloved my approval down the agenda and then after my case was introduCed, a Motion was made to vote on a construction moratorium immediately, before they addressed my project. The moratorium was not even on the agenda and was quite a surprise, to say the least. That is the first point at which I had heard of any consideration whatsoever of a construction moratorium or any other delay or problem in reinstating my site plan approvaL It also seemed quite peculiar that they didn't discuss the moratorium until after the other construction related agenda items were dealt with, and then immediately before my item. Nobody at the Planning Commission meeting was surprised to hear about a moratorium, and everyone on the Planning Commission . as well as city employees, were fully aware of what was being discussed. It was of no surprise to anyone with the city, but it was fully a surprise to myself and other observers in the room that are not connected with the city. I believed that since I had complied with all the prior issues the City had raised and, the site plan had already been approved, "reinstating" the site plan approval was merely a fomality. I went along with the City's suggestion that the approval be "SUspended", instead of extended in December of 199~. At the request of Kathy Iaga, I did still complete the application for reinstatement. I also submitted another fee for the reinstatement, and I talked to a number of people at the . city, none of whom indicated any problem or concern with the 4 o6h2/92 12:33 FAX 612 487 2083 Ba1y]{ & Wiseman I4J 009 project proceeding as approved. Nobody eVer mentioned any kind . of moratorium, or any proposed changes in zoning ordinances. With all that in mind, I proceeded as if the status of the approval was the same as prior to December of 1990. of the six conditions that I have needed to meet prior to ~.. .", . building permit issuance, they can still all be timely met so I can close on the financing. First, two lots need to be combined into one, a small legal matter. Second, I need to provide an access easement over Control Data's entrance drive, which has already been agreed to by Control Data, subject only to final drafting. Third, I need to grant easements for fire lanes. The fire lanes are entirely on my property and have already been approved by the Fire Chief. Fourth, I have already obtained the . Rice Cree:k Water Shed District permit, which is in my possession. (See Exhibit A) . Fifth, I need to meet park dedication requirements. A letter is already prepared for park dedication. Last, I need to post a landscaping bond, and I believe it can be done quite easily. All of these items that the City has requested as necessary for building permit approval, can be timely completed to satisfy the city.s requirements. My total expenditures of nearly $114,000.00 have been based on the interpretations of the city, and my belief and reliance that the City approved my site plan and would grant me the perntit that they said they would. . 5 "=.. FURTHER YOUR AFFIANT SAITH NOT. . Q~-L ,~ ------ Dennis Foster before me , 1992. .... JUlJE A..lEl~ II( ~D-"';'flll 5tA. ANOKA COUNTY Uyc."loI P ~1 r I eiphsO:t..t,.1WI . . 6 RICE CREEK WATERSHED DISTRICT RCWD PERMIT NO. 90-nO . SUITE 374, ARDBN PLAZA . _ . 3585 NORTH LEXINGTON AVENUE cc: Cuy or Arden Hills ARDEN HILLS MINNESOT' 551"6 J.M. Hontgomery, Inc. ' - "" '" RC\.JD file PERMtT PERMIT .AJ?PLTCATtON NO. 90-110 Issued to: Control Data Corporation/Dennis Foster, 1415 Arden Oaks Drive, Arden Hills, JvlN 55112 . Location: 4155 Le...>dngton Avenue North (Northwest quadrant of the intersection of Le.:dngton Avenue, North 8...'1d County Road F), Arden Hills'. . Purpose: Approval of Final Site Drainage Plan for creation of a temd.s and r<>quetball ~lex, 8. 9+ acres. At their meeting on May 22, 1991 , the Board of Managers of the nice Creek Watershed District reviewed YOur permit application and the recommendation of the District Engineer based upon the following eyJQibits: 1. Permit Application dated June 14, 1990. 2. RaiD COIIl[Jt"e..J.,2I1'3ive StormNaterManagernent File 81C03. 3. Site grading and drain2lge plan, prepared by Nom Wells, Architect, P .A. , dated August 1, 1990, last revised May 16, 1991. .' 4. Pre-permit ~Tlvestigation letter prepared by Tom Rasimssen, JM.1, to Bill Boyer, dated April 9, 1990. . 5. Correspondence from Nom Wells, dated April ll, 1991, outliIJing revisions made to project. 6. Cash strret:y in thearrount of $2,000, received June ll, 1991, They found the project as planned to be in a,cco:edance with the Rules & Regula,tions and Guidelines of the District and therefore apprOved the permLt as requested, with the following additional stipulations: no further stipulations. It is the responsibility of the. Permittee to provide all measures . I).ecessary to contain >>ediment on the site during construction. This may require the use of erosion control mea>>ures not outlined .J COAtinu&d. on .re.....orsa------. , .' j EXHIBIT A , i ____ --=......." _ _ -...-- , - '.. -.-. ..-- . --. . ..~.. ., .. RICE CREEK WATERSHED DISTRICT PERMIT #: 90-110 '. . 3585 N. Lexington Avenue, Suite 374 Arden Hills, MN 55126 Applicant: Dermis Foster Date: PROJECT: FinBl Site Drainage Plan for creation of a te.TJl1is & raquetball cornple.v.:, 8.9+ acres at 4155 Le..'ringtOtl Ave. N (l.\'W quad of , Lexington Ave. & Co. Rd. F), Arden l:tiIls. , I , OWNER'S CERTIFICATION To be completed by the Permittee: I hereby certify that the work described in the above- referenced Permit has been completed as of the ___ day of , 19_, in accordance with the authori_ zation granted by the Rice Creek Watershed District, and is now ready for inspection. , 0 I Please refund cash surety. J I ~2,OOO ~ Signature of Owner Fo= D2-78 " ~ . 1 1 F \ , , I . I j j i - - - . t ~ r .. .. EXHIBrT A ! . 06;12/92 12:.34 FAX 612 487 2083 Ba13'1{ & Wiseman 141 013 \ , , ::x:J ., _III . n CD '.' . . ("') ~ Q c;;; ::a -- ~ :::cJ ~ en C"':J -f l (1) Z :=c ~ ::r 1 ~ Gn ~ c:::P ::e -- . =E -0 -r -= (J) :: Q) t"V"'I c::. ~ <D ~ ~I'" ~. en _ -c - \ ,J =:Y _. = en c:::3 0 =:;:;a ''''' - . ::T ::z: r ;;;::a. """'"" - CD C"") I- :s :::j :s ~ 0.. ::J:=:>:S-<<- ; ~ :-~d~ -; _ _ 0 ~ a 0;0 OJ ~ ~ ~o CD i ~ g=: -. \"ii . f ""C JOJ!:; -O{? g g. .J) .,. ... ; ~?J m -.. Q, . 0 : ~ ^ :; = ~ d " ~ g g a : .:.2 .c ;s 3 - :b- 9J -.)> -. I g. -4 ci.. ~ 1 ::S, It!l ::s . ~ 0 ,- ~ I ~ 5 fA" ." j. 5: .n ~ ~ m- i, :z 0 , (") ~ c.n. -, CD <.n f/i' -i .....&. _ - ~ ~ ~ 4_ . CITY OF ARDEN HILLS MEKIlANDUM DATE: Jlme 12, 1992 '10: Mayor and City CoImcil :J F'llCM: catherine J. Iage, Acting Clerk 1\dministrator C stJIlJR:T : Developnent 1lgreEInents for Jim Casserly Attached are development agreements between John Arkell, The Cottages, and the communities of Cottage Grove and North st. Paul. Please bring the materials fram Jim Casserly dated May 27, 1992, which were included with the May 29 infonnational packet. Mr. Casserly will be present at the worksession meeting to discuss this matter and to answer any questions. CJIjts M92-189 . . , . i , J ? . )J .' -=- DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF NORTH ST. PAUL, MINNESOTA .~. AND COTTAGES OF NORTH ST. PAUL LIMITED PARTNERSHIP - This document was drafted by: CASWELL AND ASSOCIATES, P.A. 6070 50th Street North ~ OakJale. M.'1 55128 ---- \ , C- TABLE OF CONTENTS . Pa..e Introduction. . . . . . . . . . . . " . . . .... . . . . ......... .. 1 Article I Definitions .. . '" .. . ....... . " . ..... . . .. .. 3 Section 1,1, Definitions . . . . I . . . . . . . . . . . . . . . . . . . 3 ARTICLE II Representations ann Warranties . . . ......... .. 5 Section 2.1, Representations by the City . . .... . . . . . 5 Section 2.2. Representations and Warranties by the Developer . ." . . ....... ..... . .... " 5 ARTICLE III Construction of Minimum Improvements .. .. .. .... 6 Section 3.1, Construction of Minimum Improvements. . . . . . 6 Section 3.2. Construction Plans ... ......... . . . .... 6 Section 3.3. Commencement and Completion of Construction . ..... .. ... . . .... ...... 7 Section 3.4. Certificate of Completion . '" ........... 8 ~ ARTICLE IV Insurance . . ..... . . . . ..... ... ... . . ..... 9 . Section 4,1. Insurance . .. . . I I ..... ... I.. . . . .... 9 ARTICLE V Tax Increment . . . . . ". . ." . . . ... .. . ... I .. 12 Section 5.1, Real Property Taxes . .. . .... ." . .... 12 Section 5,2. Assessment Agreement . , . . . . . . . ...... . 12 Section 5.3. Tax Increment . .. ..... . .. ..... . ..... 12 Section 5.4. Failure to Pay Real Estate Taxes ......... . 13 Section 5,5. Sale or Transfer of Tax Increment . . . . . . , . . 13 ARTICLE VI Financin51 . . . . . . . . . . . ... .. . . . .... . . . .... 14 Section 6,1, Financing . . . . . .. . . . . .. ......... 14 Section 6.2. Equity Funds . . . ....-,..,. .. . . . .. .. 14 Section 6.3. Revenue Bonds . . .. . . . ..... . . .. . 14 Section 6.4. Copy of Notice of Default to Mortgagee . . . . . . 14 Section 6.5. Mortgagee's Option to Cure Defaults. . . . . . . . 14 ARTICLE VII Prohibitions Altainst Assiltnment and Transfer . .... 16 Section 7.1. Representation as to Development .. . ... ... 16 Section 7.2. Prohibition Against Transfer of Property and Assignment of Agreement . . . . . I. .. . . ... . 16 . ~ Sedion 7.3. Prohibition Against Transfer of Partnership Interests " . .. '" ... . ..... 18 Section 7.4, Approvals .. . .......... ............ 18 I ... ARTICLE \'III Events of Default . '" . . . . . . . . . 19 Sec tion 8.l. Events of Default Defined. .. . . . . . . 19 Section 8.2, Remedies on Default '. . .. . . . . . . . . , , 20 Section 8.3. No Remedy Exclusive . . . . ..... .... . . . . 20 Section 8.4. No Additional Waiver Implied by One \vaiver . . 20 ARTICLE IX Additional Provisions . . . , . . . . . . . . . . . . . . . . . . . 21 Section 9.l. Conflict of Interests; City Representatives No Individually Liable . . . ....... . . . .... 21 Section 9.2. Equal Employment Opportunity .... . . ..... 21 Section 9,3. Restrictions on Use . . . . . . . . . . . . . . . . . . . 21 Section 9,4. Titles of Articles and Sections. , . . .... . . . 21 Section 9.5. Notices and Demands .... .... . ... .. . .. 21 Section 9.6. Counterparts . ..... . . ... ........ .... 22 Section 9.7. Modification . .... . . . . ....... . . ... . . . 22 Section 9.8. Law Governing .. . . . . ............ . . . 22 Section 9.9. Legal Opinions ... . .... ... ........ . .. 22 Section 9.10. City Approvals . '" ....... .... ... . '" 22 Section 9.1l. Termination . . . . .... . ...... '" . . . . .. 22 TESTIIvlONIUl>1 SIGNATURES . SCHEDULE A: Description of Development Property SCHEDULE B: Assessment Agreement and Assessor's Certification -, .-- . \:.., DEVELOPMENT AGREEMENT . '<r THIS AGREEMENT, made as of the /"" day of , 1990, by and between The City of North St. Paul (the municipal corporation of the State of Minnesota, and Cottages of North St. Paul Limited Partnership, a Minnesota Limited Partner- ship, (the "Developer"). WITNESSETH: WHEREAS, the City is a city organized and existing pursuant to the Constitution and laws of the State of Minnesota and is governed by the Counc il of the City; and WHEREAS, pursuant to, Minnesota Statutes, Section 469.125 to 469.134, as amended, the Council is authorized to establish development districts in order to provide for the development of the City; and WHEREAS, pursuant to Minnesota Statutes, Sections 469.174 through 469.179, as amended, the Council is authorized to finance the capital and administration costs of a development district with tax increment revenues derived from a tax increment financing district established within such development district; and . ~.. WHEREAS, the Council of the City has established a development program (the "Program) ; and WHEREAS, in connection with the Program the Counc il of the City has established a development district (the "Development District") and a tax increment financing district (the "Tax. Increment District"); and WHEREAS, in connection with the creation of the Development District and the Tax Increment District the Council of the City has prepared and approved a tax increment financing plan and a development district plan (the "Planu) ; and WHEREAS, the major objectives of the Counc il in establishing tbe Development District are to: remove, pre;vent, or reduce blight, blighting factors, causes of blight, or the spread of blight and deterioration; to eliminate unhealthful, unsafe, and unsanitary structures and conditions; reduce traffic hazards; provide land for needed public streets, utilities, and facilities; remove incom- patible land use, eliminate obsolete or detrimental uses; and assemble land for development; and C- . 1 . e:- WHEREAS, in order to achieve the objectives of the Program the City is prepared to acquire certain real property located in the District (such real property is . more particularly described in Exhi bit A to this Agreement) and to convey such real property to the Developer for development in accordance with the Program and this Agreement; and WHEREAS, in order to achieve the foregoing the City has determined to provide substantial aid and assistance through the sale of Revenue Bonds and the contribution of federal, state, regional and local funds; and WHEREAS, the City believes that the development of the Development District pursuant to this Agreement, and fulfillment generally of the terms of this Agreement, are in the vital and best interests of the City and the health, safety, morals and welfare of its residents, and in accord with the public purposes and provisions of applicable federal, state and local laws under which the Program is being undertaken and assisted; NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: ~ - . 2 ----- ~ ARTICLE I . Definitions Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears from the context; llActH means the City Development Districts Act, Minnesota Statutes, Sections 469.125 tl sea" as amended. "Agreement" means this Agreement, as the same may be from time to time modified, amended, ur supplemented. "Assessor's Minimum Market Value" means the agreed minimum market value of real property as determined by the county assessor pursuant to the assessment Agreement. "Assessment Agreement" means the agreement, substantially in the form of the agreement contained in Exhibit B attached to and made a part of this Agreement, among the Developer, the City, an the city assessor of the City, entered into pursuant to Section 5.2 of this Agreement. "Certificate of Completion" means the certification, in the form of the certificate contained in Exhibit C attached to and made. , , a part of this Agreement, provided to the Developer, or the - purchaser of any part, parcel or unit of the Development Property, pursuant to Section 3.4 of this Agreement. IICity" means the City of North St. Paul. "Construction Plans" means the plans, specifications, drawings and related documents on the construction work to be performed by the Developer on the Development Property which (a) shall be as detailed as the plans, specifications, drawings and related documents which are submitted to the building inspector of the City, and (b) shall include at least the following for each building: ( 1 ) site plan: (2 ) foundation plan: ( 3) basement plans: (4 ) floor plan for each floor; (5 ) cross sections of each (length and width) : (6 ) elevations ( all sides) ; ( 7 ) facade and landscape plan: and (8 ) such other plans or supplE!'!ile.nts to the foregoing plans as the City may reasonably request. ltCounty" means the County of Ramsey. "Development District" means the real property located within Development District Number 2 created by the City, a description of which is attached he re to as Exhibit A. "Event of Default" means an action by the Developer described . (, in Section 8.1 of this Agreement. 3 . . "Minimum Improvements" means a 94-unit elderly residential facility which is to be constructed by the Developer on the Development Property. "Net Proceeds" means any proceeds paid by an insurer to the Developer or the City under a policy or policies of insurance required to be provided and maintained by the Developer pursuant to Article V of this Agreement and remaining after deducting all expenses (including fees and disbursements of counsel) incurred in the collection of such proceeds. "Plan" means the tax increment financing plan and the development district plan created in connection with the Program and the Development District. "Programlr means the development program approved by the City in connection with the creation of the Development District, as it may be amended or modified. "Developer" means Cottages of North St. Paul Limited Partner- ship, a Minnesota Limited Partnership. "Development Property" means the real property described in Schedule A of this Agreement. . "Revenue Bonds" means the $4,650,000.00 North St. Paul Multifamily Housing Revenue Bonds (Cottages of North St. Paul, a Minnesota Limited Partnership Project) Series 1990. "Staten means the State of Minnesota. "Tax Incrementll means that portion of the real property taxes which is remitted to the City as a tax increment pursuant to the Tax Increment Act. "Tax Increment District" means the tax increment district created by the Council in connection with the Development District. "Tax Official" means any City or county assessor; County auditor; City. County or State board of equalization, the commis- sioner or revenue of the State, or any S t a.t.e or federal district court, the tax court of the State, or the State Supreme Court. "Termination Date" means December 30, 2003, or such earlier date as may occur if termination occurs as provided herein. "Unavoidable Delays" means delays which are the direct result of strikes, other labor troubles, fire or other casualty to the Minimum Improvements, litigation commenced by third parties which, by injunction or other similar Judicial action, directly results . in delays', or acts of any ;'ederal, state or local governmental unit (other than the City) wh 1 directly result in delays. 4 m \..., ARTICLE II . Representations and Warranties Section 2.1. Representations bv the City. The City makes the following representations as the basis for the undertaking on its part herein contained: (a) The City is a statutory city of the State with all the powers of a statutory city duly organized and existing under the laws of the State. Under the provisions of the Act, the City has the power to enter into this Agreement and carry out its obliga- tions hereunder. ( b) The City has created, adopted and approved and Develop- ment District in accordance with the terms of the Act. (c) The City has created, adopted, certified, and approved the Tax Increment District pursuant to the Tax Increment Act. Cd) The City proposes to pledge the tax increments generated by the Tax Increment District to reimburse the Developer and for expenses in accordance with the plan. C e) The Minimum Improvements will be an allowed use under the ~ zoning ordinance of the city. . Section 2.2. Representations and Warranties bv the Developer. The Developer represents and warrants that: ( a) The Developer will construct, operate and maintain the Minimum Improvements in accordance with the terms of this Agree- ment, the Development Plan and all local, state and federal laws and regulations (including, but not limi ted to, environmental, zoning. building code and public health laws and regulations), except for variances necessary to construct the improvements contemplated in the Construction Plans approved by the City. (b) The Minimum Improvements shall have a Market Value of at least $3,566,991. - (c) The Developer agrees that it will indemnify, defend, and hold harmless the City, its governing body members, officers, employees, agents and contractors, from any and all claims or causes of action, of whatsoever nature, arising or purportedly arising out of the actions of the Developer, its officers, employees, agents or contractors in connection with the Agreement or the construction, installation, ownership or operation of the Minimum Improvements. L . 5 --- ARTICLE III Construction of Minimum Improvements Section 3.1- Construction of Minimum Improvements. The Developer agrees that it will construct the Minimum Improvements on the Development Property in accordance with the approved Construction Plans and at all times prior to the Maturity Date will operate and mainta.int preserve and keep the Minimum Improvements or cause the Minimum Improvements to be maintained, preserved and kept with the appurtenances and every part and parcel thereof, in good repair and condition. Section 3.2. Construction Plans. ( a) The Developer has submitted to the City "Preliminary Plans, " consisting of floor plans and sketches of the exterior and interior of the proposed Minimum Improvements which illustrate the size and character of the proposed improvements. The Preliminary Plans are not inconsistent with the Program, this Agreement and all applicable state and local laws and regulations, insofar as said consistency may be determined at said preliminary stage. Said preliminary plans shall be approved or rejected (in whole or in part) in writing by the City within twenty (20 ) days after the date of this Agreement. If no . written rejection is made within said twenty (20) days, the Preliminary Plans shall be deemed approved by the City. Any rejection shall set forth in detail the reasons therefor. If the City rejects the Preliminary Plans, in whole or in part, the Developer may submit new or corrected Preliminary Plans at any time after receipt by the Developer of the notice of rejection. The City's approval of the Preliminary Plans shall not be unreasonably withheld. (b) At any time after execution of this Agreement, but in any event no later than sixty (60 ) days after the date of the Agree- ment. the Developer shall submit Construction Plans to the City, The Construction Plans shall provide for the construction of the Minimum Improvements and shall be in conformity with the Program, this Agreement, the Preliminary Plans, and all applicable state and local laws and regulations. The City shall approve the Construc- tjon Plans in writing if, in the sole disc~tion of the City: (a) the Construction Plans conform to the terms and conditions of this Agreement; (b) the Construction Plans conform to the goals and objectives of the Program; (c) the Construction Plans conform to all applicable federal, State and local laws, ordinances, rules and regulations; (d) 'the Construction Plans are adequate to provide for the construction of the Minimum Improvements; ( e) the Construction Plans do not provide for expenditures in excess of the funds available to the Developer for the construction of the Minimum Improvements; ( f) the design of the Minimum Improvements and the . facade and landscaping plans provide for a faciIi ty which is not inconsistent with the aesthetic character of the Program; and (IS ) 6 --------- ---- L no Event of Default has occurred. No approval by the City shall. re 1 ieve the Developer of the obligation to comply with the terms of this Agreement, the terms of the Program, applicable federal, state and local laws, ordinances, rules and regulations, or to construct the Minimum Improvements. No approval by the City shall constitute a waiver of an Event of Default. Such Construction Plans shall , in any event, be deemed approved unless rejected in writing by the City, in whole or in part. Such rejection shall set forth in detail the reasons therefor, and shall be made within tw'enty ( 20) days after the date of their receipt by the City. If the City rejects the Construction Plans in whole or in part, the Devp.loper shall submit new or corrected Constructions Plans within sixty (60 ) days after written notification to the Developer of the rejection. The provisions of the Section relating to approval, rejection and resubmission or corrected Construction Plans shall continue to apply until the Construction Plans have been approved by the City. The City's approval shall not be unreasonably withheld. Said approval shall constitute a conclusive determina- tion that the Construction Plans (and the Minimum Improvements, if constructed in accordance with said plans) comply to the City's satisfaction with the provisions of this Agreement relating thereto, The Construction Plans shall not be rejected due to any objection which could have been raised upon review of the Prelimi- nary plans and corrected more economically at that time. (c) If the Developer desires to make any change in the. Preliminary Plans or Construction Plans after their approval by the City, the Developer shall submit the proposed change to the City for its approval. If the Preliminary Plans or Construction Plans, as modified by the proposed change, conform to the requirements of this Section 3.2 of this Agreement with respect to such previously approved Construction Plans, the City shall approve the proposed change and notify the Developer in writing of its approval. Such change in the Preliminary Plans or Construction Plans shall, in any event, be deemed approved by the City unless rejected, in whole or in part, by written notice by the City to the Developer, setting forth in detail the reasons therefor. Such rejection shall be made within ten ( 10) days after receipt of the notice of such change. Section 3 . 3 . Commencement and Completion of Construction. T.he Developer shall commence construction-of the Minimum Improve- ments on July 30, 1990, or on such other date as the parties shall mutually agree, The Developer shall substantially complete the construction of the Minimum Improvements by December 31, 1990 subject to mutual agreement in writing to extend signed by all parties and to unavoidable delays not caused by Developer. All work with respect to the Minimum Improvements to be constructed or provided by the Developer on the Development Property shall be in conformity with the Preliminary Plans and Construction Plans as submit.ted by the Developer and approved by the City. . I 7 ___n____ ________ ...' ..", I ~',:;-,i ''''.:/ ;. :~.:. ~., r"~", - :'~ 2:2 ~~:2:: ~ ... Thl Developer agr... tor itulf, its successors and auigns, and .vlry succesaor in interest to the Development Property, or eny part thereot, that the Developer, and auch aUCCeUOrB end esslgns shall promptly begin end diligently prosecute to Completion the development ot the Development Property throush the connruction of the Minimum Improvemenu 'thenon, end thlt such conlttuction shall in any event be comm,nd;ed and compllted within the period specif1ed in this Section 3.3 of this Asraamlnt. . Section 3.4. Certificata of Complation. (a) Promptly etter complation of the Minimum Improvements in accordance with the Construction Plana the City will furnish the Developer With an eppropriate inatrument 10 certitying. Such certification by the City Ihall be a conclulive determination of satiafaction end termination of the agreements and covenantl in the Aireement with reapect to the obligations ot the Developer, and tu lucensora and aUigns, to conlttruct the Minimum Improvements and the dates for the peiinning and completion thereof. Such certification and auch determinetion shall not conlUtute evidence ot complienca With or uttshction at eny obl1gltion of the Developer to any Holder o! a Mortgage, or any insurer of a Mortgage, aacuritli money loaned to tinanee the MinimUm Improvements, or any part thereof. (b) The certificata prOVided for in thia Section 3.4 of thia Agreement shall be in luch form as will enable it to be recorded in the proper office tor the recordation of d~eds and other instruments pertainins to the Development Property. If the City shall refuse or faU to provide any certification in accordance with the provisions of this Section 3.4 of this Agreement, the City .hall, wi thin . thirty ,(30) days after uritten request by the DeVeloper, provide the Developer with a written statement, indicating in adequata datail in what nllpects the Developer hili failed to complete the Minimum Improvements in accordance wi th ths provisions of the Agreement, or 1. otherwise in default, and what mea lures or acts it, "ill be necessary, in the op inion of the Ci ty, for tha DeVeloper to talte or perforz in order to obtain such certification. (c) The cons truction of thl Minimum Improvements ehall be d.emed to be completed uhen such Minimum Improvements are substantially completed, Which shall be et such time as a Certificate of Subn.ntill completion is iuued by the Project Architect end concurred in by the contractor, owner end City in accordsnce "ith th~ Arp~OVQrl r1ana ,nd ,pecificationl. - , a. L- ARTICLE IV . Insurance Section 4,1. Insurance, (a) The Developer will provide and maintain at all times during the process of constructing the Minimum Improvements and, from time to time at the request of the Administrator, furnish the Administrator with proof of payment of premiums on: (i) Builder's risk insurance, written on the so-called "Builder's Risk -- Completed Value Basis," in an amount equal to one hundred percent (100") of the insurable value of the Minimum Improvements at the date of completion, and with coverage available in nonreporting form on the so-called "all riskH form of policy. (H) Comprehensive general liability insurance (including operations, contingent liability, operations of subcontrac- tors, completed operations and contractual liability in- surance) together with an Owner's Contractor's Pol icy with limits against bOdily injury and property damage of not less than $1,000,000.00 for each occurrence (to accomplish the above required limits, an umbrella excess liability policy may be used) . . ~- ( iii) Worker's compensation insurance, with statutory coverage. The policies of insurance required pursuant to clauses (i) and (iil above shall be in form and content satisfactory to the Ad- ministrator and shall be placed with financially sound and reputable insurers licensed to transact business in the State. The policy of insurance delivered pursuant to clause (i) above shall contain an agreement of the insurer to give not less than thirty ( 30) days' advance written notice to the Administrator in the event of cancellation of such policy or change affecting the coverage thereunder. (b) Upon completion of construction of the Minimum Improve- ments and prior to the Maturity Date, the D~eloper shall maintain, or cause to be maintained, at its cost and expense, and from time to time at the request of the Administrator shall furnish proof of the payment of premiums on, insurance as follows: (i) Insurance against loss and/or damage to the Minimum Improvements under a policy or policies covering such risks as are ordinarily insured against by similar businesses, including ( without limiting the generality of the foregoing) fire, extended coverage, vandalism and malicious mise hie f, . ( boiler explosion, ,.,.ater damage, demoli t ion cost, debris removal, collapse and flood in an amount not leslI than the 9 . full insurable replacement value of the Minimum Improvements, but any such policy may have a deductible amount of not more than $25,000. no policy of insurance shall be so written that the proceeds thereof will produce less than the minimum coverage required by the preceding sentence, by reason of co- insurance provisions or otherwise, without the prior consent thereto in writing by the Administrator. The term "full insurable replacement value" shall mean the actual replacement cost of the Minimum Improvements (excluding foundation and excavation costs and costs of underground flues, pipes, drains and other uninsurable items) and equipment. (ii) Comprehensive general public liabil i ty insurance, including personal injury liabi li ty (with employee exclusion deleted), and automobile insurance, including owned, non-owned and hired automobiles, against liability for injuries to persons and/or property, in the minimum amount for each occurrence and for each year of $1,000,000.00, for public liability not arising from ownership or operation of automobi- les (or other motor vehic les) , and in the minimum amount of $300,000 for each occurrence and for each year for liability arising out of ownership or operation of automobiles. (iii) Such other insurance, including worker's compensa- tion insurance respecting all employees of the Developer . engaged in work with respect to the construction of the Minimum Improvements, in such amount as is customarily carried by like organizations engaged in like activities of comparable size and liability exposure; provided that the Developer may be self-insured with respect to all or any part of its liability for worker's compensation. (c) All insurance required in Article IV of this Agreement shall be taken out and maintained in responsible insurance companies selected by the Developer which are authorized under the laws of the State to assume the risks covered thereby. The Developer will deposit annually with the Administrator policies evidencing all such insurance, or a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. -., (d) The Developer agrees to notify the Administrator immediately in the case of damage exceeding $50,000 in amount to, or destruction of, the Minimum Improvements or any portion thereof resulting from fire or other casualty. In the event that any such damage does not exceed $50,000, the Developer will forthwith repair, reconstruct and restore the Minimum Improvements to substantially the same or an improved condition or value as it existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restora- . tion, the Developer \oIi11 apply the Net Proceeds of any insurance relating to such damage received by the Developer to the payment 10 --- C or reimbursement of the costs thereof. . In the event the Minimum Improvements or any portion thereof is destroyed by fire or other casualty and the damage or destruc- tion is estimated to equal or exceed $50,000, then the Developer shall within one hundred and twenty (120) days after such damage or destruction, proceed forthwith to repair, reconstruct and restore the damaged Minimum Improvements to substantially the same condition or utility value as it existed prior to the event causing such damage or destruction and, to the extent necessary to accomplish such repair, reconstruction and restoration, the Developer will apply the Net Proceeds of any insurance relating to such damage or destruction received by the Developer to the payment or reimbursement of the costs thereof. Any Net Proceeds remaining after completion of construction shall be disbursed to the Developer. The Developer shall complete the repair, reconstruction and restoration of the Minimum Improvements, whether or not the net Proceeds of insurance received by the Developer for such purposes are sufficient to pay for the same. Any Net Proceeds remaining after completion of such repairs, construction and restoration shall be remitted to the Developer. (e) The provisions of this Section are expressly subject to the provisions of the construction lender and trustee mortgages. ,,--. . - ~ . 11 .... ARTICLE V Tax Increment Section 5.1. Real Property Taxes. (a) The Developer shall pay when due all real property taxes payable with respect to the Development Property. (b) The Developer agrees that prior to the Termination Date it will not take any of the following actions to the extent that such actions would result in a reduction in the tax increment generated by the Minimum Improvements below the amount of $78,000 in any year: (1) seek administrative review or judicial review of the applicability of any real estate tax statute determined by any Tax Official to be applicable to the Development Property or Minimum Improvements or raise the inapplicability of any such real estate tax statute as a defense in any proceedings, including delinquent tax proceedings; and (2 ) seek administrative review or judicial review of the constitutionality of any real estate tax statute determined by any Tax Official to be applicable to the Development Prope rty or Minimum Improvements or raise the uncon- stitutionality of any such real estate tax statute as a defense in any proceedings, including delinquent tax proceedings. ~ (c) The Developer further agrees that it will not, prior to termination date, request the County Assessor to assess the Development Property and the Minimum Improvements on any basis other than as Class 4c residential real estate under Minnesota Statutes, Section 273.13, Subd. 25. Section 5.2. Assessment A~reement. The Developer and the City shall execute the Assessment Agreement, substantially in the form of the Assessment Agreement contained in Schedule B of this Agreement. The Assessment Agreement shall provide that the Assessed Market Value of the Minimum Improvements upon completion of the Minimum Improvements shall be equal to $1,458,153. Section 5 . 3 . Tax Increment. As the tax increment is collected each year. starting in 1992, ten percent (10%) shall be paid to the City to reimburse it for expenses of Administering the - the Development Program; and ninety percent (90%) shall be paid to Developer to reimburse it for land acquisitions and site improve- ments up to the amount of $905,000. This $905,000 shall earn interest at the rate of nine percent (9") per annum on the unpaid amount or the interest rate payable on the Revenue Bonds, as noted in Section 6.3 of the Agreement, whichever interest rate is lower. The payment of interest is only payable from the 90" of tax increment available to the Developer or assignee. Payments shall be applied first to interest due and the balance for principal. , No tax increment shall be collected or paid after December 30, 2U03, the termination date. , 12 --- L Section 5,4. Failure to Pay Real Estate Taxes. The City is. only obligated to make payments under this Article if and when the real estate taxes are paid and Ramsey County delivers the captured tax increment to the City. If. no captured tax increment is received by the City it is under no obligation to make any paymen ts, Section 5.5. Sale or Transfer of Tax Increment. Tax increments shall only be paid to the owner or owners of the Minimum Improvements, except that upon written instructions, approved by all parties, the tax increments may be paid by the city directly into the debt service fund for the Revenue Bonds, as noted in Section 6.3 of this Agreement. If a default is made on payments on the Revenue Bonds, the city shall have the sole option to pay any or all of the 90% of the tax increments directly into the debt service fund for those bonds. i . "--- - I . , \ . 13 ~ ARTICLE VI Financinll Section 6.1- Financinll. Wi thin thirty (30 ) days after entering into this Agreement, the Developer shall submit to the City evidence of a commitment for financing sufficient for construction of the Minimum Improvements (taking into account equity monies that will be provided by the Developer). If the City finds that the financing is sufficiently committed, adequate in amount to provide for the construction of the Minimum Improvements, and contains other terms and conditions which are not inconsistent with the objectives and needs of the City, then the City shall notify the Developer in writing of its approval. Such approval shall not be unreasonably withheld and either approval or rejection shall be given within five (5 ) days from the date when the City is provided the evidence of such financing. If the City rejects the evidence of financing as inadequate, it shall do so in writing specifying the basis for the rejection. In any event the Developer shall submit adequate evidence of financing within thirty (30) days after such rejection. Section 6.2. EQU i ty Funds. The Developer shall submit to the City evidence that at least twenty-five percent (25%) of the total . cost of the project has or will be paid by the Developer and will not come from borrowed funds. The 25% equity rate will be reduced to fifteen percent ( 15%) when permanent financing is taken out on the project. For the purpose of this section; the term "equity" shall include all debt service reserves established pursuant to the indenture of trust. Section 6.3. Revenue Bonds. To help this Program, the city has authorized Revenue Bonds to be sold with the proceeds to be paid to the Developer. Section 6.4. COpy of Notice of Default to Mortllallee. Whenever the City shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in its obligations or covenants under the Agreement, the City shall at the same time forward a copy of such ~tice or demand to each Holder of any Mortgage authorized by the Agreement at the last address of such Holder shown in the records of the City. Section 6.5. Mortllallee's Option to Cure Defaults. After any breach or default referred to in Section 8.1 hereof, each such Holder shall (insofar as the rights of the City are concerned) have the right, at its option, to cure or remedy such breach or default (or such breach or default to the extent that it relates to the part of the Development Property covered by its mortgage) and to . acid the cost the reo f to the Mortgage debt and the lien of its Mo rtgage: Provided, that if the breach or default is with respect - to construction of the Minimum Improvements, nothing contained in 14 C this Section or any other Section of this Agreement shall be deeme~ to permit or authorize such Holder, either before or afte foreclosure or action in lieu thereof, to undertake or cant inue the construction or completion of the Minimum Improvements (beyond the extent necessary to conserve or .protect Minimum Improvements or construction already made) without first having expressly assumed the obligation to the City, by written agreement satisfactory to the City, to complete, in the manner provided in the Agreement, the Minimum Improvements on the Development Property or the part thereof to which the lien or title of such Holder relates. Any such Holder who shall properly complete the Minimum Improvements relating to the Development Property or applicable part thereof sha 11 be entitled, upon written request made to the City, to a certification by the City to such effect in the manner provided in Section 3.4 of this Agreement. If the Holder elects to cure the default, as above stated, it will not be bound by the Developers equity requirements described in Section 6.2 of this Agreement and further if the Holder completes the Minimum Improvements and the Certificate of Completion is granted, the lender, and any trans- fe ree of the lender (provided the transferee is approved by the City in accordance with Section 7. 2) will continue to receive tax increment assistance as provided in Section 5.3 of this Agreement. L . - C . 15 ..- ARTICLE VII Prohibitions A~ainst Assi~nment and Transfer Section 7.1. Representation as to Development. The Developer represents and agrees that its undertakings pursuant to the Agreement are, and will be, used for the purpose of development of the Development Property and not for speculation in land holding. The Developer furthe r recognizes that, in view of (a) the impor- tance of the development of the Development Property to the general welfare of the City; (b) the substantial financing and other public aids that have been made available by the City for the purpose of making such development possible; and (c) the fact that any act or transaction involving or resulting in a significant change in the identity of the parties in control of the Developer or the degree of their control is for practical purposes a transfer or disposi- tion of the property then owned by the Developer, the qualifica- tions and identity of the Developer are of particular concern to the City. The Developer further recognizes that it is because of such qualifications and identity that the City is entering into the Agreement with the Developer, and, in so doing, is further willing to accept and rely on the obligations of the"Developer for the faithful performance of all undertakings and covenants hereby by it to be performed. ~ Section 7 . 2 . Prohibition A~ainst Transfer of Propertv and Assi~nment of A~reement. Also, for the foregoing reasons the Developer represents and agrees that: (a) Except only by way of security for, and only for, the purpose of obtaining financing necessary to enable the Developer or any successor in interest to the Development Property, or any part thereof, to perform its obligations with respect to making the Minimum Improvements under the Agreement, and only if such financing has been approved by the City, the Developer (except as so authorized) has not made or created, and will not make or create, or suffer to be made or created, any total or partial sale, assignment, conveyance, or lease, or any trust or power, or transfer in any other mode or form of or with respect to the Agreement or the Development Property or~y part thereof or any l"nterest therein, or any contract or agreement to do any of the same, without the prior written approval of the City, which approval ehall not be unreasonably withheld. (b) The City shall be entitled to require as conditions to any such approval that: (i) Any proposed transferee shall have the qualifica- tions and financial responsibility, as determined by the City, . necessary and adequate to fulfill the obligations undertaken ;Ln the Agreement by the Developer (or, in the event the transfer is of or relates to part of the Development Property, 16 C such obligations to the extent that they relate to such part)~ (ii) Any proposed transferee, by instrument in writing satisfactory to the City and in form recordable among the land records, shall, for itself and its successors and assigns, and expressly for the benefit of the City, have expressly assumed all of the obligations of the Developer under the Agreement and agreed to be subject to all the conditions and restric- tions to which the Developer is subject (or, in the event the transfer is of or relates to part of the Development Property, such obligations, conditions and restrictions to the extent that they relate to such part) even if the Developer agrees to continue to fulfill those obligations: Provided, That the fact that any transferee of, or any other successor in interest whatsoever to, the Development Property, or any part thereof, shall, for whatever the reason, not have assumed such obligations or so agreed, shall not (unless and only to the extent otherwise specifically provided in the Agreement or agreed to in writing by the City) relieve or except such transferee or successor of or from said obligations, condi- tions, or restrictions, or deprive or limit the City of or with respect to any rights or remedies or controls with respect to the Development Property or the construction of the Minimum Improvements; it be i ng the intent of this, together with other provisions of the Agreement, that (to the fUllest4lt extent permitted by law and equity and excepting only in the manner and to the extent specifically provided otherwise in the Agreement) no transfer of, or change with respect to, ownership in the Development Property or any part thereof, or any interest therein, however consummated or occurring, and whether voluntary or involuntary, shall operate, legally or practically, to deprive or limit the City of or with respect te any rights or remedies or controls provided in or resulting frem the Agreement with respect to the Development Property and the construction of the Minimum Improvements that the City would have had, had there been no such transfer or change. (iii) There shall be submitted to the City for review all instruments and other legal documents involved in effecting transfer; and if approved by the Ci~ its approval shall be indicated to the Developer in writing. In the absence of 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 the Agreement or otherwise with respect to the construction of the Minimum Improvements, from any of its obligations with respect thereto. , . \ 1.7 --- Section 7 .3. Prohibition A~ainst Transfer of Partnership Interests. Also for the foregoing reasons the Developer represents and agrees that prior to the Termination Date, and without the prior written approval of the City, there shall be no transfer by any general partner of the Developer of its general partnership interests in the Developer. With respect to this provision, the Developer and the parties executing this Agreement on behalf of the Developer represent that they have the authority of all of the existing general partners to ag ree to this provision on their behalf and to bind them with respect hereto. Section 7.4. Approvals. Any approval required to be given by the City under this Article VII of this Agreement may be denied only in the event that the City reasonably determines that the ability of the Developer to perform its obligations under this Agreement will be materially impaired by the action for w/lich approval is sought. . - - 18 ------ -- L ARTICLE VIII . Events of Default Section 8.1. 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 (unless the context otherwise provides), anyone or more of the following events: (a) Failure by the Developer to pay when due or to provide- when required any payments required to be paid or provided under this Agreement. (b) Failure by the Developer to provide and maintain any insurance required to be provided and maintained by Section 4.1 of this Agreement or failure by the Developer to reconstruct the Minimum Improvements when required pursuant to Section 4.1 of this Agreement. (c) Failure by the Developer to submit a commitment for financing to the City in a timely manner pursuant to the terms and conditions of Section 6.1 of this Agreement. (d) Failure by the Developer to commence and complete ~ construction of the Minimum Improvements pursuant to the terms, conditions and limitations of Article III of this Agreement. (e) Failure by the Developer to observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed hereunder. ( f) The Holder of any Mortgage exercises any remedy provided by the Mortgage documents or exercises any remedy provided by law or equity in the event of a default in any of the te rms or conditions of the Mortgage, and fails to accept Developer's responsibility hereunder as provided in Section 6.4 of this Agreement. (g) Failure of the Developer to subm~satisfactory Construc- tion Plans in accordance with Section 3.2 of this Agreement. (h) The Developer or the Developer's general partner: (1) files any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any state or federal bankruptcy law; (ii) makes an assignment for the benefit of its ~ credi tors-; \ , 19 -------- ec (Hi) admits in writing its inability to pay its debts generally as they become due; or (iv) is adjudicated bankrupt or insolvent. Section 8.2. Remedies on Default. Whenever any Event of Default referred to in Section 8.1 of this Agreement occurs, the City may take any one or more of the following actions after providing thirty days written notice to the Developer of the Event of Default, but only if the Event of Default has not been cured within said thirty days, or if the Event of Default is incapable of being cured within said thirty days, the Developer does not furnish the City with assurances, reasonably satisfactory to the Ci ty, that the Event of Default will be cured and will be cured as soon as reasonably possible; ( a) Suspend its performance under the Agreement until it receives assurances from the Developer, deemed adequate by the City, that the Developer will cure its default and continue its performance under the Agreement. (b) Terminate the Agreement. (c) Withhold the Certificate of Completion. . (d) Take whatever action, including legal or administrative action, which may appear necessary or desirable to the City, including any actions to collect any payments due under this Agreement, or to enforce performance and observance of any obligation, agreement, or covenant of the Developer under this Agreement. Section 8.3. 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 ~e a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the City or the Developer to exercise any remedy reserved to it, it shall not be necessary to give notice, other than such notice as may be required in this Article VIII. Section 8.4. No Additional Waiver Implied bv One Waiver. In the event allY agreement contained in this Agreement should be breached by either party and thereafter waived by the other party, . such waiver shall be li~ited to the particular breach so waived and shall not be - deemed to waive any other concurrent, previous or \, subsequent breach hereunder. 20 C ARTICLE IX . Additional Provisions Section 9.1. Conflict of Interests; City Representatives Not Individuallv Liable. No membe r, official, or employee of the City shall have any personal interest, direct or indirect, in the Agreement, nor shall any such member, official, or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership, or association in which he is, directly or indirectly, interested. No member, official, or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Developer or successor or on any obligations under the terms of the Agreement, except in the case of will ful misconduct. Section 9.2. Equal Emplovment ODPortunitv. The Developer, for itself and its successors and ass.igns. agrees that during the construction of the Minimum Improvements provided for in the Agreement it will comply with all non-discrimination and affirma- tive action requirements applicable under any state, federal or local law, ordinance or regulation. \ Section 9.3. Restrictions on Use. The Developer agrees fore itself, and 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 devote the Development Property to, and only to and in accordance with, the uses specified in the Plan and this Agreement. Section 9.4. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 9.5. Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand, or other communication under the Agreement by either party to the 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 (a) in the case of the Developer, is addressed to or delivered personally to the Developer at j and (b) in the case of the City, is addressed to or delivered personally to the City at 2526 E. 7th Avenue, North St. Paul, . L Minnesota 55109; 21 \ ~ or at such other address with respect to either such party as that party may, from time to time, designate in writing and forward to the other as provided in this See tion. Section 9,6. Counterparts. This Agreement is executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 9.7. Modification. If the Developer is requested by the holder of a Mortgage or by a prospective holder of a prospective Mortgage to amend or supplement this Agreement in any manner whatsoever, the City will, in good faith, consider the request with a view to granting the same unless the city, in its reasonable j udgmen t . concludes that such modification is not in the public interest, or will s ignif icantly and undesirably weaken the financial security provided to the interes ts of the City by the terms and provis ions of this Agreement. Section 9.8. Law Governing. This Agreement will be governed and construed in accordance with the laws of the State of Minnesota. See tion 9,9 Legal Opinions. Upon execution of this Agreement, each par ty shall, upon request of the other party, supply the other party with an opinion lof its legal counsel to the effect that this Agreement is legally issued or executed by, and valid and binding upon, such party, and enforceable in accordance with its . terms. Section 9,10. City Approvals. Any approval, execution of documents, or other action to be taken by the City pursuant to this Agreement, for the purpose of carrying out the terms of this Agreement or for the purpose of determining sufficient performance by the Developer under this Agreement, may be made, executed or taken by the Mayor and City Manager without further approval by the City Counc il. The City Manager may, but shall not be required to, consult with other City staff with respect to such matters. Section 9.11, Termination. This Agreement shall remain in effect until the later of the expiration of the tax increment payments of the date the Revenue Bonds have been paid in full, Upon Termination the City shall furnish Developer a document in recordable form that the Agreement has been terminated. -- ~ 22. c . Section 9.12. Cons true tion Phases. The project may be constructed in Phases, Phase I consisting of 76 Units, and Phase II consisting of 20 Units. Section 9.13 Condemnation, The City shall use condemnation to acquire any and all land use restrictions on the property described in Phase II. All costs and expenses shall be paid by the Developer. The City shall immediately deed the land to the developer upon acquiring Title pursuant to Minn. Stat. 117.042. Section 9.14. Default - Phase II. If the land use restrictions on the property described in Phase II cannot be acquired, then the failure to construct Phase II shall not be a Default of this Agreement. If tha t happens the minimum improvements described in Section 2. 2(b) shall be changed to $2,750,000 and this Agreement shall be so modified. Section 9.15. Mod if ica t ion. A. Section 3.3 is hereby modified to change the date the developer shall commence construction to October 15, 1990 and change substantial completion date to August 31, 1991. B. Section 4.1(e) is hereby modified by adding the following words before the period: "and every mortgage securing financing for the property." C. Section 5.2 is hereby modified to change the figure of $1,458,153 to . L $ . Section 9.16. Senior Hous ing, 1007. of the housing units must have at least one person age 55 or older, except for transition periods of six months or less. - l . 22A. ~ IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its name and behalf and its seal to be hereunto duly affixed and the Developer has caused this Agreement to be duly executed in its name and behalf on or as of the date first above written. THE CITY OF NORTH ST. PAUL, MINNESOTA By ,::L2Y;7'~' /: ~- ~;J/7 Its ayor And By A!u~r7 /Y7~: Its City Clerk COTTAGES OF NORTH ST. PAUL LIMITED PARTNERSHIP A Minnesota Limited Partnership B~Ju~~~ . Dant..-l G. ene is, 4It Its General Partner This instrument was drafted by: CASWELL & ASSOCIATES, P.A. 6070 - 50th Street North Oakdale, Minnesota 55128 - , 23 C STATE OF MINNESOTA ) . )ss COUNTY OF RAMSEY ) -, - -, This instrument was acknowledged before me on .'. <,',' .. .-.f.;., I',..' ,1990, by vV,/l,'A-_ r (~A1db,,:/.;1'; ) the Mayor and /c:~o6e/?r {-=. C),,;. r- T" the City Manager/Clerk of the City of North St. Paul, Minnesota, . -, /'" ..... .f I - . I i RQSEMAFlV J. HUOALLA ~ , . . <- . - .... ~.;,. ,I, ~ """_ @ No\II'Y Pulll;c,MinM"-' . Notary Public / WuflinQlOl'l Cou:;-" _ . My (;omm. Ex". 4-".- , STATE OF MINNESOTA ) / )ss COUNTY OF 4&.........-, ) l instrument was acknowledged before me on ~~i,_~_ ?8 . This I 1990, by Daniel G, Feneis, the General Partner of Cottages of North St. Paul Limited Partnership, a Minnesota Limited Partnership. ;fcl.' ( 1', Notary Pub G ......, J. Woinbo"lO" Jr ......, PcCIic.M'Mooota SIIa"'O Coutlty .., ~"'. '_19115 ~ . 24 - --- e:- LEGAL DESCRIPTION: Lot .1, Block 1, Target Plaza addition; according to the plat thereof on file and of record in the office of the Registrar of Titles, Ramsey County, Minnesota, except for the West 747 feet thereof. -- - ~ - " ASSESSMENT AGREEMENT . L THIS AGREE}lE"T, dated as of this 1st day of June, 1990, by anc among the Ci ty of North S t, Paul ( the "City") , Co t tages of ~orth St. Paul Limited Par tnership ( the "Developer"), and the Assessor for Ramsey County ( tne "Assessor") : wITNESSETH \.IHEREAS, on or before the da te hereof the Ci ty and Developer have eotered into a Development Agreement da ted as of June i, 1990 ( the "Ag reemen t") , regarding certain real property loca ted in the City (the "Development Property") which property is legally described on Exhibit A attached hereto and hereby n;ade a part hereof; \.IHEREAS, it is contemplated that pursuant to said Agreement, the Developer will undertake the development of a 94 unit senior citizen facility and related improvemen ts (the "Proj ec t") on the Development Property, which project shall be constructed in two phases. \.JHEREAS, the City and Developer desire to establish a minimum market value for the por tion of the Development Property and the improvements cons truc ted 0 r to be constructed ther eon, pursuant to Minnesota Statutes, Sec tion 469.177, Subdivision 8; L IJHEREAS, the City and the Assessor have revie\oled plans and specificati~ for the Project; NO\.l, THEREFORE, the parties to this Agreement, in consideration of the promises, covenants, and agreements made by each to the other, do hereby agree as follows: 1. Upon substantial completion of Phase I, the minimum market value which shall be assessed for the Proj ec t shall be not less than T\oIo Million Seven Hundred Fifty Thousand ($2,750,000) . The parties to this Agreement expect that the construction of part of the Project will be completed on or before August 31, 1991. 2, The minimum market value herein established shall be of no further fo"ce and effect and this Agreement shall terminate on December 31, 2003, - 3. This Agreement shall be promptly recorded by the Developer along with a copy of Hinnesota Statutes, Section 469.177, Subdivision 8, attached as Exhibit e and nereby i:\ade a part hereof, \oIi th the County Recorder of Rai:\sey County, Minnesota. The Developer shall pay all costs of recording, 4, The Assessor represents that he has revie\oled the plans and specifications for the improvemeats aad the market value previously assigned to the land upon which the improvamne ts are to be coas truc ted, and the "mini<:lur:l market value" as set forth above is reasonable. ~ \, 5. Neither the preamble nor provisions of this Agreemeot are intended modify, or shall they be construed as modifying, the terms of the Agreement between the City and the Developer. EXHIBIT B 6. This Agreement shall inure to the benefit of and be binding upon the ~ successors and assigns of the parties, IN \.IITNESS \.IHEREOF, the Ci ty, and Developer have caused this Agreement to be executed in their names and on their behalf all as of the date set forth above. THE CITY OF NORTH ST. PAUL, MINNESOTA By Its By Its City Manager COTTAGES OF NORTH ST. PAUL LIMITED """"'" ~ G,,,;{f2! ~ Daniel G. Fene~ The General Partner -- - ~ . STATE OF MINNESOTA ) . c ) ss COUNTY OF WASHINGTON ) This instrument was aCknowledged before me on , 1990, by William T, Sandberg , the Mayor and Robert E, Gatt i , the City Manager/Clerk of the City of North St. Paul, Minn a. r~w~~,,;~;,:'.. ; ;~'':c,'' NOlAA'lru.LlC-..:......... i l~': I.AM!E'!'COU:.IY STATE OF MINNESOTA ) ~., ~YCCMM.P.'IIlUfE~.~~.~~~ I COUNTY OF /~~ ) ss ..".,..,......V^^~""..^~.J'., ....... ) This instrument was acknowledged before me on ~~~~ ~ 1990, by Daniel G. Feneis, the General Partner of Cottages of North St. Pa I Limited Partnership, a Minnesota limited partnership. . \ ~5r'/?t t rry,. No tary E c " @ ......, J. w.;.....gor. Jr ~~~~ ." Ccmm. E"p, 1-*1. - L . . CERTIFICATION BY COUNTY ASSESSOR &- The undersigned assessor, being legally responsible for the assessment of the above-described property upon ~ompletion of the improvements to be constructed thereon, hereby certifies that the market value assigned to the land and improvements upon completion shall not be less than Three Million Five Hundred Sixty-six Thousand Nine Hundred Ninty-one ($3,566,991). County Assessor for Ramsey County i STATE OF MINNESOTA ) . ) COUNTY OF ) This instrument Was acknowledged before me on , 1990, by , the County Assessor of Ramsey County. Notary Public - ~ < (.. . Subd, 8. A.....m.nt I,Teem.ntl, An authority may, upon .ntering into a develop- ment or redevelopment agreement pursuant to section 469.176, lubdivision 5, enter into a written assessment agreement in recordable torm with the developer or redeveloper of property within the We increment financing district which e.tabli.he. a minimum market value of the land .nd completed improvements to be con.tructed thereon until a specified tennination date. which date .hall be not later than the date upon which tax increment will no longer be remitted to the .uthority pursuant to section 469.176, subdivision 1. The asses.ment agreement .hall be presented to the county assessor, or city asse..or having the p?wers oC the county ...esaor. oC the juri.diction in which the tax increment financing di5trict is located, The assea.or .hall review the plan. and apeciCicationa for the improvements to be constructed. review the market value previou.ly assigned to the land upon which the improvement.. are to be constructed and, aD long as the minimum market value contained in the assessment agreement appears. in the judgment oC the asse.sor. to be a reasonable estimate. .hall execute the Collowing certification upon the agreement: The undersigned ....es.or. being legally responsible for the as.e..ment oC the above described property upon completion oC the improvements to be con.tructed thereon, hereby certifiea that the market value auiiflld to the land and improvements upon completion .hall not be Ie.. than $. .. . . .. . . .. , Upon transfer of title of the land to be developed or redeveloped Crom the authOrity. the developer or redeveloper, the asses.ment agreement, together with a copy of t .ubdivi.ion, .hall be filed for record and recorded in the office of the county recorder or filed in the office of the regi.trar oC title. of the county where the real e.tate or any part thereoC is .ituated, Upon completion of the improvements by the developer or redevelop- er, the as.eooor ohall value the property pursuant to .ection 273.11, except thot the market value ....igned thereto .hall not be Ie.. than the minimum m.rket v.lue contained in the as.e..ment agreement. Nothing herein .halllimit the discretion oC the a..e..or to ....ign a m.rket value to the property in exce.. of the minimum market value contained in the as.e..ment agreement nor prohibit the developer or redeveloper Crom .eeking, through the exerci.e of administrative and legal remedies. a reduction in market value for property tax purpo.e.; provided, however. that the developer or redeveloper .hall not seek, nor .hall the city a..e..or, the county as.e..or. the county .uditor. any board of review, any board of equalization, the commissioner of revenue, or any court of this state grant a reduction oC the market value below the minimum market value contained in the asae.ament agreement during the tenn of the agreement filed oC record regardle.. of actual market value. which may re.ult Crom incomplete construction oC improvements. destruction or diminution by any cause, insured or uninsured, except in the case of acquisition or reacquisition of the property bya public entity. Recording or filing of nn asse..ment sgreement complying with lhe tenn. of this .ubdivi.ion shsll constitute notice oC the agreement to any .ub.equent purch..er or encumbrancer of the Is"d Or any psrt thereof. whether voluntary or involuntary. ~~d ahall be bindinll' upon them, L . .. ----------------- . ~' DEVELOPMENT AGREEMENT BY AND BETWEEN ,- THE CITY OF COTTAGE GROVE AND COTTAGES OF COTTAGE GROVE LIMITED PARTNERSHIP ., , -- This document drafted by: BRIGGS AND MORGAN Professional Association 2200 First National Bank Building st. Paul, Minnesota 55101 - - - -,.. 18499 - ---..-- , "'- TABLE OF CONTENTS e L ~ ARTICLE 1 - DEFINITIONS . . . . . . . . . . . . . . . . . . . 2 Section 1.1. 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. Acquisition of the Development Property and Site Improvements . . . . . . . . . . 7 Section 3.2.. Reimbursement: Tax Increment Revenue Note . . . . . . . . . . . . . . . . . . 7 Section 3.3. Developer's Fee and Legal and I Administrative Expenses . . . . . . . . . 9 Section 3.4. Compliance With Low and Moderate Income Requirements . . . . . . . . . . . . . . 9 ARTICLE IV - EVENTS OF DEFAULT . . . . . . . . . . . . . . . 10 Section 4.1. Events of Default Defined . . . . . . . . 10 Section 4.2. Remedies on Default . . . . . . . . . . 11 Section 4.3. No Remedy Exclusive . . . . . . . . . . . 11 - I Section 4.4. No Implied Waiver . . . . . . . . . . . . 11 , , Section 4.5. Agreement to Pay Attorney's Fees and Expenses . . . . . . . . . . . . . . . . . 11 Section 4.6. Indemnification of Authority and City . . 12 ARTICLE V - DEVELOPER'S OPTION TO TERMINATE AGREEMENT . . . . 13 Section 5.1 The Developer's Option to Terminate . . . . 13 Section 5.2 Action to Terminate . . . . . . . . . . . . 13 Section 5.3 Effect of Termination . . . . . . . . . . . 13 ARTICLE VI - ADDITIONAL PROVISIONS . . . . . . . . . . . . . 14 Section 6.1. Restrictions on Use . . . . . . . . . . 14 Section 6.2. Conflicts of Interest . . . . . . . . . . 14 Section 6.3. Titles of Articles and Sections . . . . . 14 Section 6.4. Notices and Demands . . . . . . . . . . . 14 Section 6.5. Counterparts . . . . . . . . . . . . . . . 15 Sectton 6.6. Law Governing -, 15 . . . . . . . . . . . . . . Sect~on 6.7. Expiration . . . . . . . . . . . . . . . . 15 Section 6.8. Provisions Surviving Rescission or Expiration . . . . . . . . . . . . . . . . 15 Section 6.9. Amendments to Agreement . . . . . . . . . 15 SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . 18-19 ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . 20-21 - - EXHIBITS .... - 18499 '" .' t DEVELOPMENT AGREEMENT THIS AGREEMENT, made as of the 1st day of June, 1991, by and between the City of Cottage Grove, Minnesota (the "City"), a municipal corporation organized and existing under the laws of the State of Minnesota and Cottages of Cottage Grove Limited Partnership, (the "Developer"), WITNESSETH: WHEREAS, pursuant to Minnesota Statutes, Section 469.124 through 469.134, the City has formed Municipal Development District No. 7 (tlrt! "Development District") and has adopted a development program therefor (the "Development Program"); and WHEREAS, pursuant to the provisions of Minnesota Statutes, Section 469.174 through 469.179, as amended, (hereinafter the "Tax Increment Act") , the City has created, within the Development District, Tax Increment Financing District No. 1-8 (the "Tax Increment District"), the legal description of which is attached hereto as Exhibit A, and has adopted a tax increment financing plan, dated. April 3, 1991, therefor (the "Tax Increment Plan") which provides for the use of tax increment financing in connection with certain development within the Development District; and i ~ - WHEREAS, in order to achieve the objectives of the Development Program and particularly to make the land in the Development District available for development by private enterprise in conformance with the Development Program, the City has determined to assist the Developer with the financing of certain costs of a Project (as hereinafter defined) to be constructed within the Tax Increment District as more particularly set forth in this Agreement; and WHEREAS, the City believes that the development and construction of the Project, and fulfillment of this Agreement are vital and are in the best interests of the city of Cottage Grove, the health, safety, morals and welfare of residents of the City, and in accordance with the public purpose and provisions of the applicable state and local laws and requirements under which the Project has been undertaken and is being assisted. NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: -\ - 18499 -,., - ~ , , C ARTICLE 1 e 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: Aoreement means this Agreement, as the same may be from time to time modified, amended or supplemented; Business Day means any day except a Saturday, Sunday or a legal holiday or a day on which banking institutions in the city are authorized by law or executive order to close; Qity means the city of Cottage Grove; Minnesota; Compliance Certificate means the Compliance certificate in substantially the form attached hereto as Exhibit E; County means Washington County, Minnesota; . Developer means Cottages of Cottage Grove Limited Partnership its successors and assigns; Developer's Fee means the Developer's Fee the Developer is - \ required to pay the City under Section 3.3 hereof; "-.---' Development District means the real property described in the Development Program; Development prooram means the development program approved in connection with the Development District; 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; Leoal and Administrative Expenses means the fees and expenses incurred in connection with the adoption of the Tax Increment Financing Plan, the preparation of this Development Agreement, and the issuance of the Tax Increment Note; Note Pavrnent Date means August 1, 1993, and each February 1 and August I of each year thereafter to and including February 1, 2005; provided, that if any such Note Payment Date should not be - ~-- - ,.,-- 18499 2 , , ~ a Business Day, the Note Payment Date shall be the next succeeding Business Day; Prime Rate means the rate of interest from time to time publicly announced by First Bank National Association in Minneapolis, Minnesota, as its "prime rate" or any successor rate, which rate shall change as and when that prime rate or successor rate changes; proiect means the approximately 59 unit multifamily elderly housing development to be located on the Development Property; Site Improvements means those site improvements described on Exhibit D attached hereto; State means the State of Minnesota; Tax Increments means the tax increments derived from the Tax Increment District which have been received and retained by the City in accordance with the provisions of Minnesota statutes, Section 469.177; Tax Increment Act means Minnesota Statutes, Sections 469.174 through 469.179, as amended; Tax Increment District means Tax Increment Financing tit District No. 1~8 located within the Development District, the legal description of which is set forth on Exhibit A attached hereto, which was qualified as a housing district under the Tax Increment Act; Tax Increment Financinq Plan means the tax increment financing plan approved for the Tax Increment District by the City Council on April 3, 1991; Tax Increment Note or Note means the Tax Increment Revenue Note of 1991 (Cottages of Cottage Grove Limited Partnership Project) to be executed by the City and delivered to the Developer pursuant to Article III hereof, a copy of which is attached hereto as Exhibit C. Unavoidable Delays means delays, outside the control of the party Claiming its occurrence, which are the direct result of strikes, other labor troubles, unusually severe or prolonged bad weather, acts of God, fire or other casualty to the Project, litigation commenced by third parties which, by injunction or other similar judicial action or by the exercise of reasonable discretion, directly results in delays, or acta at any tederal, _ i ..... -., 18499 3 0" ARTICLE II ~ REPRESENTATIONS AND WARRANTIES - section 2.1. Representations and Warranties of the city. The City makes the following representations and warranties: (1) The City is a municipal corporation and has the power to enter into this Agreement and carry out its obligations hereunder. (2) Based on the covenants of the Developer set forth in Section 3.4, the Ta~ Increment District is a "housing district" within the meaning of Minnesota Statutes, Section 469.174, Subdivision 11, and was created, adopted and approved in accordance with the terms of the Tax Increment Act. (3) The development contemplated by this Agreement is in conformance with the development objectives set forth in the Development Program. (4) To finance certain costs within the Tax Increment District, the City proposes, subject to the further provisions of this Agreement, to apply Tax Increments to reimburse the Developer for the costs of the Development Property and certain Site Improvements incurred in connection with the Project as ~ further provided in this Agreement. (5) The city makes no representation or warranty, either express or implied, as to the Development Property or its condition or the soil conditions thereon, or that the Development Property shall be suitable for the Developer'S purposes or needs. Section 2.2. Representations and Warranties of the Developer. The Developer makes the following representations and warranties: (1) The Developer has power to enter into this Agreement and to perform its obligations hereunder and is not in violation of the laws of the state. (2) The Developer will cause the Project to be installed in accordance with the terms of this Agreement, the Development Program, and all local, state and federal laws and regulations (including, but not limited to, environmental, zoning, energy conservation, building code and public health laws and regulations). - - .. 18499 5 L (3) The construction of the Project would not be undertaken e 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. (4) The Developer will use its best efforts to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, state, and federal laws and regulations which must be obtained or met before the Project may be lawfully constructed. (5) 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. (6) The Developer will cooperate fully with the City with respect to any litigation commenced with respect to the Project. (7) The Developer will cooperate fully with the City in - resolution of any traffic, parking, trash removal or public safety problems Which may arise in connection with the construction and operation of the Project. (8) The construction of the Project will commence on or before January 1, 1992 and, barring Unavoidable Delays, the Project will be substantially completed by December 31, 1992. -' - - (-- W'- 18499 6 , i ARTICLE III UNDERTAKINGS BY DEVELOPER AND CITY section 3.1. Acauisition of the Develooment Prooertv and site Imorovements. The parties agree that the Site Improvements to be constructed by the Developer are essential to the successful completion of the Project. The costs of the acquisition of the Development Property and the site Improve- ments, which shall include engineering and all other costs directly related to the making of the Site Improvements, together with the Legal and Administrative Expenses are estimated to be at least $585,000. The costs of the acquisition of the Development Property and the site Improvements and Legal and Administrative Expenses shall be paid by the Developer. The city shall reimburse the Developer for the lesser of $585,000, or the costs actually incurred and paid by the Developer as further provided in section 3.2 hereof. section 3.2. Reimbursement: Tax Increment Revenue Note. The city shall reimburse the payments made by the Developer under section 3.1 for costs o~the acquisition of the Development Property and the site Improvements and Legal and Administrative Expenses through the issuance of the city's Tax Increment Revenue Note in substantially the form attached to this Agreement as tit Exhibit C, subject to the following conditions: (1) The Note shall be dated, issued and delivered when the De~eloper shall have demonstrated in writing to the reasonable satisfaction of the City that the construction of the Site Improvements has been completed, that the Developer has incurred and paid all costs of the acquisition of the Development Property and the Site Improvements and Legal and Administrative Expenses, as described in and limited by Section 3.1 and that the Developer determines that it will complete at least 50% of the Project by January I, 1992 (unless waived by the Developer). (2) The unpaid principal amount of the Note shall bear simple, non-compounded interest from the date of issuance of the Note, at 9.00% per annum. Interest shall be computed on the basis of a 360 day year consisting of twelve (12) 30-day months. (3 ) The principal amounts of the Note and the interest thereon shall be payable solely from the Tax Increments. (4) The payment dates of the Note shall be the Note Payment Dates. The Developer shall submit a statement to the city on or before each January 1 and July I, commencing on July I, 1993, setting forth the principal amount of the Note and the accrued - - -., 18499 7 L Certificate covering a period Commencing on January 1 of the e immediately preceding calendar year and ending no later than December 1 of the same year or June 1 of the current year (whichever is the most recent date prior to submission of the statement), and executed by the Developer. On each Note Payment Date and subject to the prOvisions of the Note, the City shall pay, against the principal and interest then due on the Note, 90% of any Tax Increments received by the City during the preceding 6 months. All such payments shall first be applied to accrued and Unpaid interest on the Note and then to principal of the Note. (5) Notwithstanding anything herein in the Note to the contrary, the City shall be under no obligation to apply or pay the Tax Increments to the payment of the Note any earlier than 30 days after it has received the Developer'S statement required by paragraph (4) above. Any interest accruing on Tax Increments held by the City pending the Note Payment Dates or receipt of SUch statement from the Developer shall accrue to the benefit of the City. (6) The Note shall be a special and limited obligation of the City and not a general obligation of the City, and only Tax Increments shall be Used to pay the p~incipal of and interest on the Note. If, on any Note Payment Date, the Tax Increments for the payment of the accrued and unpaid interest on the Note are inSUfficient for Such purposes, the difference shall be carried - forward, without interest accruing thereon, and shall be paid if and to the extent that on a future Note Payment Date there are Tax Increments in excess of the amounts needed to pay the aCcrued interest then due on the Note. (7) The City's obligation to make payments on the Note on any Note Payment Date or any date thereafter shall be conditioned upon the requirement that (A) there shall not at that time be an Event of Default that has occurred and is continuing under this Agreement and (B) this Agreement shall not have been rescinded pursuant to Section 4.2(b). (8) The Note shall be governed by and payable pursuant to the additional terms thereof, as set forth in EXhibit C. In the event of any conflict between the terms of the Note and the terms of this Section 3.2, the terms of the Note shall govern. The iSsuance of the Note pursuant and subject to the terms of this Agreement, and the taking by the City of Such additional actions as bond counsel for the Note may require in connection therewith, are hereby authorized and approved by the City. - - ( WI'- ~- 18499 8 - e.- section 3.3. Developer's Fee and Leqaland Administrative Expenses. As partial compensation for services provided by the City to facilitate development of the Project and for additional municipal services required by the Project during the term of this Agreement, the Developer shall pay to the city in immediately available funds on or before the date the certificate of occupancy is issued by the City but no later than August I, 1993 a Developer'S Fee in the amount of $23,000. In addition, the Developer shall, upon request of the City, payor reimburse for the payment of all Legal and Administrative Expenses. Section 3.4. Compliance with Low and Moderate Income Requirements. The-Developer covenants that in excess of eighty percent (80%) of the "fair market value" (as defined in Section 469.174, Subdivision 11, of the Act) of the Project will at all times be occupied by persons of "low and moderate income" (as defined in the Tax Increment Financing Plan) and that one hundred percent (100%) of the units of the Project, unless consented to by the city, will be all times be occupied by at least one elderly [55 years of age and older] person, that 40% of the residential units in the Project will be occupied by individuals whose income is 60% or less of the median family income, as adjusted for family size and that it will establish such monitoring procedures with respect to applicants for and occupants of dwelling units in the Project as the City may -- reasonably require to assure compliance with this requirement. - - -,., 18499 9 C ARTICLE IV e 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 anyone or more of the following events: (a) Failure by the Developer to timely pay any ~ valorem real property taxes assessed with respect to the Development Property or to pay when due the Developer's Fee. (b) Failure by the Developer to cause the installation of the Project to be completed pursuant to the terms, conditions and limitations of this Agreement. (c) Failure of the Developer to observe or perform any other covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. (d) The holder of any mortgage on the Development Property or any improvements thereon, or any portion thereof, commences foreclosure proceedings as a result of any default under the applicable mortgage documents. - (e) If the Developer shall (A) file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act of 1978, as amended or under any similar federal or state law; or (B) make an assignment for the benefit of its creditors; or (C) admit in writing its inability to pay its debts generally as they become due; or (D) be adjudicated a bankrup~, or insolvent; or if a petition or answer proposing the adjudication of the Developer, as a bankrupt or its reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within sixty (60) days after the filing thereof, or a receiver, trustee or liquidator of the Developer, or of the Project, or part thereof, - - '.. w- 18499 10 f shall be appointed in any proceeding brought against the Developer, and shall not be discharged within sixty (60) days after such appointment, or.if the Developer, shall consent to or acquiesce in such appointmen~. section 4.2. Remedies on Default. Whenever any Even~ of Default referred to in Section 4.1 occurs and is continuing, the city, as specified below, may take anyone or more of the following actions after the giving of thirty (30) days' written notice to the Developer, but only if the Event of Default has not been cured within said thirty (30) days: (a) The city may suspend its performance under this Agreement until it receives assurances from the Developer, deemed adequate by the City, that the Developer will cure its default and continue its performance under this Agreement. (b) The City may cancel and rescind the Agreement. (c) The City may take any action, including legal or administrative action, in law or equity, which may appear necessary or desirable to enforce performance and observance of any obligation, agreement, or covenant of the Developer under this Agreement. tilt Section 4.3. No Remedv Exclusive. No remedy herein conferred upon or reserved to the City is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. Section 4.4. No 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. Aqreement to Pay Attornev's Fees and Exoenses. Whenever any Event of Default occurs and the City shall employ attorneys or incur other expenses for the collection of payments due or to become due or for the enforcement or performance or observance of any obligation or agreement on the part of the - - -'W 18499 11 ------ - Developer herein contained, the Developer agrees that it shall, L- on demand therefor, pay to the City the reasonable fees of such e attorneys and such other expenses so incurred by the city. Section 4.6. Indemnification of Authoritv and Citv. (1) The Developer releases from and covenants and agrees that the city, its governing body members, officers, agents, including the independent contractors, consultants and legal counsel, servants and employees thereof (hereinafter, for purposes of this Section, collectively the "Indemnified Parties") shall not be liable for and agrees to indemnify and hold harmless the Indemnified Parties against any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Project, provided that the foregoing indemnification shall not be effective for any actions of the Indemnified Parties that are not contemplated by this Agreement. (2) Except for any willful misrepresentation or any willful or wanton misconduct of the Indemnified Parties, the Developer agrees to protect and defend the Indemnified Parties, now and forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit, action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising from the actions or inactions of the Developer (or 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; provided, that this indemnification shall not apply to the warranties made or obligations undertaken by the City in this Agreement or to any actions undertaken by the City which are not contemplated by this Agreement but shall, in any event and without regard to any fault on the part of the City, apply to any pecuniary loss or penalty (including interest thereon from the date the loss is incurred or penalty is paid by the City at a rate equal to the Prime Rate) as a result of the Project causing the Tax Increment District to not qualify or cease to qualify as a "housing district" under Section 469.174, Subdivision 11, of the Act or to violate limitations as to the use of Tax Increments as set forth in Section 469.176, Subdivision 4d. - (3) All covenants, stipulations, promises, agreements and obligations of the City contained herein shall be deemed to be the covenants, 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. - -- \ , w- 18499 12 1 . . , . ARTICLE V DEVELOPER'S OPTION TO TERMINATE AGREEMENT section 5.1 The Developer's option to Terminate. This Agreement may be terminated by Developer, if (i) the Developer is in compliance with all material terms of this Agreement and no Event of Default has occurred; and (U) the city fails to comply with any material term of this Agreement, and, after written notice by the Developer of such failure, the City has failed to cure such noncompliance within ninety (90) days of receipt of such notice, or, if such noncompliance cannot reasonably be cured by the City within-ninety (90) days, of receipt of such notice, the City has not provided assurances, reasonably satisfactory to the Developer, that such noncompliance will be cured as soon as reasonably possible. Section 5.2 Action to Terminate. Termination of this Agreement pursuant to Section 5.1 must be accomplished by written notification by the Developer to the city within thirty (30) days after the date when such option to terminate may first be exercised. A failure by the Developer to terminate this Agreement within such period constitutes a waiver by the Developer of its rights to terminate this Agreement due to such occurrence or event. - Section 5.3 Effect of Termination. If this Agreement is terminated pursuant to this Article V, this Agreement shall be from such date forward null and void and of no further effect; provided, however, the termination of this Agreement shall not affect the rights of either party to institute any action, claim or demand for damages suffered as a result of breach or default of the terms of this Agreement by the other party, or to recover amounts which had accrued and become due and payable as of the date of such termination. upon termination of this Agreement pursuant to this Article V, the Developer shall be free to proceed with the project at its own expense and without regard to the provisions of this Agreement; provided, however, that the City shall have no further obligations to the Developer with respect to reimbursement of the expenses set forth in Section 3.2. - -- -. 18499 13 . . ... ARTICLE VI e ~. ADDITIONAL PROVISIONS section 6.1. Restrictions on Use. The Developer agrees for itself, its successors and assigns and every successor in interest to the Development Property, or any part thereof, that the Developer and such successors and assigns shall operate, or cause to be operated, the Project as a multifamily housing facility for the elderly and shall devote the Development Property to, and in accordance with, the uses specified in this Agreement. Section 6.2. Conflicts of Interest. No member of the governing body or other official of the City shall have any financial interest, direct or indirect, in this Agreement, the Development Property or the Project, or any contract, agreement or other transaction contemplated to occur or be undertaken thereunder or with respect thereto, nor shall any such member of the governing body or other official participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. No member, official or employee of the City shall be personally liable to the City in the event of any default or breach by the Developer or successor or on any obligations under ~ the terms of this Agreement. ~ Section 6.3. Titles of Articles and Sections. Any titles of the several parts, articles and sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 6.4. Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand or other communication under this Agreement by any party to any other shall be sufficiently given or delivered if it is dispatched by registered Or certified mail, postage prepaid, return receipt requested, or delivered personally, and (al in the case of the Developer is addressed to or delivered personally to: - Cottages of Cottage Grove Limited Partnership 10812 Nesbitt Avenue Bloomington, Minnesota 55437 .-. ( -- '- 'u 18499 14 ~ with a copy to: Salmen & Brinkman, P.A. 2100 Minnesota World Trade Center 30 East Seventh Street st. Paul, Minnesota 55101 (b) in the case of the City is addressed to or delivered personally to the City at: City of Cottage Grove 7516 South 80th Street Cottage Grove, Minnesota 55016 - 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 6.5. Counteroarts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 6.6. Law Governinq. This Agreement will be governed and construed in accordance with the laws of the State. Section 6.7. Exoiration. This Agreement shall expire on l August 1, 1994, unless earlier terminated or rescinded in . accordance with its terms. Section 6.8. Provisions Survivinq Rescission or EXDiration. Sections 4.5 and 4.6 shall survive any rescission, termination or expiration of this Agreement with respect to or arising out of any event, occurrence or circumstance existing prior to the date thereof. Section 6.9. Amendments to Aqreement. Notwithstanding the foregoing, in the event that the City determines that the porject is not at least 50% complete on or before January 2, 1992 (unless waived by the Developer) certain provisions and sections of this Agreement shall be amended, without further actions of the parties, to provide as follows: . "Note Pavment Date means August 1, 1994, and each February 1 and August 1 of each year thereafter to and including February 1, 2006; provided, that if any such Note Payment Date should not be a Business Day, the Note Payment Date shall be the next succeeding Business Day;" . 18499 IS ------ L. "Section 3.2(1) The Note shall be dated, issued and delivered when the Developer shall have demonstrated in writing . to the reasonable satisfaction of the city that the construction of the site Improvements has been completed, that the Developer has incurred and paid all costs of the acquisition of the Development Property and the site Improvements and Legal and Administrative Expenses, as described in and limited by Section 3.1 and that the Developer determines that it will complete at least 50% of the Project by January 1, 1992 (unless waived by the Developer)." "Section 3.2(4) The payment dates of the Note shall be the Note Payment Dates. The Developer shall submit a statement to the City on or before each January 1 and July 1, commencing on July 1, 1994, setting forth the principal amount of the Note and the accrued interest thereon due on the following February 1 or August 1 as appropriate, shall include with the statement a Compliance Certificate covering a period commencing on January 1 of the immediately preceding calendar year and ending no later than December 1 of the same year or June 1 of the current year (whichever is the most recent date prior to SUbmission of the statement), and executed by the Developer. On each Note Payment Date and subject to the provisions of the Note, the City shall pay, against the principal and interest then due on the Note, 90% of any Tax Increments received by the city during the preceding 6 months. All such payments shall first be applied to accrued and . unpaid interest on the Note and then to principal of the Note." "Section 3.3. Developer's Fee and Leqal and Administrative Expenses. As partial compensation for services provided by the City to facilitate development of the Project and for additional municipal services required by the Project during the term of this Agreement, the Developer shall pay to the City in immediately available funds on or before the date the certificate of occupancy is issued by the city but no later than August 1, 1992 a Developer'S Fee in the amount of $26,500. In addition, the Developer shall, upon request of the City, payor reimburse for the payment of all Legal and Administrative Expenses." The Note when executed shall provide in paragraph three as follows: _ "The amounts due under this Note shall be payable on August 1, 1993, and on each February 1 and August 1 thereafter to and including February 1, 2006, or, if the first should not be a Business Day (as defined in the Development Agreement) the next succeeding Business Day (the "Payment Dates"), provided, that such Payment Date shall be automatically extended if and to the extent required to relieve the City of any obligation to pay any . 18499 16 .c Payment Amount any earlier than 30 days after it has received the statement and Compliance Certificate required under Section 3.2(4) of the Development Agreement. On each-Payment Date the City shall pay by check or draft mailed to the person that was the Registered Owner of this Note at the close of the last business day of the City preceding such Payment Date an amount equal to the sum of 90% of the Tax Increments (hereinafter defined) received by the City during the six month period preceding such Payment Date. All payments made by the City under this Note shall first be applied to accrued interest and then to principal." - i e-- . 16499 17 IN WITNESS WHEREOF, the city has caused this Agreement to be L duly executed in its name and on its behalf and its seal to be . hereunto duly affixed, and the Developer has caused this Agreement to be duly executed in its name and on its behalf, on or as of the date first above written. B By ts City ,-- . This is a signature page to the Development ~reement dated as of June" 1, 1991, by and between the City of Cottage Grove and Cottages of Cottage Grove Limited Partnership. \ 1a499 . 18 --- - ~ COTTAGES OF COTTAGE LIMITED PARTNERSH By I '?U' .~ \ . This is a signature page to the Development Agreement dated as of June 1, 1991, by and between the City of Cottage Grove and Cottages of Cottage Grove Limited Partnership. . 18499 19 c - STATE OF MINNESOTA ) ) . ss . COUNTY OF Q.l.Aw.\;6f( ) . . ~ -\-'--- The foreg\ing instrument was aCkn~RedC:d brsO~ me this 1. day of '- \.)..1-{ , 1991, by reo ..:l. -'-Q=-e.\i-- and f:?€v:v.. ~"''''-< \~ ,the Mayor and the city Administrator, respectively, 0 the City of Cottage Grove, Minnesota, a Minnesota municipal corporation. 8 TOODJ, HAGEN -,...- _C<uOf....... ..~ e..pr.. Dta. te, t_ l. . -- - C. '1\<;99 . 20 ~ STATE OF MINNESOTA ) ) : ss COUNTY OF D-V\W \'1:~ ) L ~\,-The foregoi~g instrument was ackno ledged rt~me this \ day of:t _'-AI.-{ ,1991, by < ,1:;2"" <2 ,e.r the -(s;::",+'~~r . ".\"".... of Cottages of Cottage ro Llmlted Partnership. - t@ TODD J. HAGEN -.............,,""""'....... ....,.. ~.......o.cr..11.11i113 . . 18499 21 ; I EXHIBIT A L Legal Description of Tax Increment District . :nO.l6'-2'?OO (iECT-16 TWp-"O:n RANG-21 r'T OF SW.1.I4 COM AT I NTEF,(i OF NEL Y L r NE OF PT DOUGLAS DR /" SEL Y l. I NE OF INGr.<ERG TR ACCORD TO PLAT OF THOMPSON GR ESTATE 2ND ADO THN N 38('EG 04' 02' I E f.\LONG SEL Y L. INE OF INGBERG TR ~:;70FT THN S 5:LDEG 55' ~8' ~ E 150FT THN N 78DEG 38' 30' , E 67. 18FT THN 5 :'iH'EG 5'_' 17" E l81.69FT TO PT OF BEG THN S 5ttlEG 56' 17" E 239.~OFT THN S OOOEG 02' 45' , I.' 550. 85FT MIL TO S LINE OF SD SINl/4 THN N89DF.:G57'15" W ALONG S L.INE OF SD SWl.14 TO ITS INTEI':SECTION WITH EXTENSION SEL Y OF NELY LINt': sn PT DOUGl.AS DR THN N 50DEG 25' ~8' t W 171. 94FT l:HN N 39DEG34'02"E 214.86FT THN S SODEG 25'58' 'E 76.0FT THN N39DEG34'O::!' 'E 107.5FT THN N50DEG25' 58" W 237FT THN N39DEG34'O::!"E 308.30 FT TO PT OF BEG \ . . - ( 18499 . '-. A-l ---- EXHIBIT B TH^C7 OIl!" L PRorEr-n' In:SCRII'T101- ' . . ' ^11 thot part of the Souch....est One-Quaner (S\'" 1/1.) of Section 16, To'mchip 27, Range 21, \;'olihin};ton County, :linncsoca deser il ed BS fo11o....s: 3cSi:1..,ing 4lt the interH'ccion of the Northca:=;t- arly line of roin: Do~Slas Drive and the ~ouchcasterly line of lnsbere ?r~il, dccording to ch~ plat of Tho~pson ~ove Estates Second Addicion on!ile ...nd of record L. che office] of che Re:;- isteT of Deeds in and for said ~3shin~ton Co~~t:y: t:he~ce North 38 cesrecs, 04 ~L,utes, 02 seconds ~sc along the Southcasccrl) line of said In~~c:g Trail 570 feat; thence South 51 degreeR, 55 ~inutes, 58 seconds ~5t ISO feet; thence North 73 degree~, Jb ~inutes, JO seconds Eo~t 67.io feet; thence South 51 deSreel 56 ~inutes, 17 s~=onds E4SL ~:1.J9 feet; thence South 00 dc- ~~'c:s, 02 :::inutcs, t.5 seconds \';<.:SC 5~().&S feet :::lore or less co :.he South line of sa~d ~o\Jci-,\.Iesc On..'-l.(~rtc::" (51.,' 1/4); thence ~orth 89 degrees, 57.~inute~, 15 sccond~ ~esC along the South '-. ine of s:lid South\.:es:: Cne-~ua'tt:e= (S,.} l/t.) to its int.crsec:- .ion \dch the e;.:tenS1U!1 Suu::lll:~st:crl)' C\: the t;orthcastcrly lint of s:.id Point: Douglas L..'-!ivu; thence }I,,:'tn .sO ucgrees, 25.:nin- ~t:cs, S3 seconds ~cst along the extension of the Northc~sterIy line of s.:Jid PoirH: l);)ugl.,s Drive to the point of besir:nin;:;, e;<(. ct!"t tho!: POX!; 0: tlH: .aoC'lve dt:'s"rib,:d t::"::Ct of l."lnd (TTacr "e"; ccscribcd a::; co=encinl; at: said intersection of the NOl'tnc.:l.st- c:.:ly lin~ of Point Douglas L>Tivc ar.c .th" Sout:hcastc::ly, line of !n~bcrg Tr.:Jil; Lhenc~ South 50 dc~rees, 2~ ~inutas. 58 seconds .i:::'::lS1: slon,!; the :'\o-::rheaste...ly 1in~ of said Point C<Q\ls1as Drive 265 feE:'t to ehe point: of beginnin~ of the land co be hereinaft. er c~sc:ibed; tnence North 39 dcsreus, J~ minutes, 02 seconds r~SC 255 fcec: thence Souch 50 ~e[.r~e~, 25 ~inutes, 58 $cconds ~st 255 f~~l; ~he~ce South 39 degrees, 34 ~inutes, 02 s~co~ds '...'cst 255 feet. rrr.>re or less to t:he Norchca'stcrly line: of sai,d Point Douglas DTive; t:hence NOTth .sO.dchI'ces, 25 ~inut:es, 58 ~econds kesc alons said Nort:neascerly line 255 feet more 0= less co the point of besinn~ns; and e~ce?t that pare of the. ~bovc described tract (Tract: "A") of land described as begin- ning at th~ intersection of the Northeasterly line of Point ; ,::>\.:;;las D::ivc and thu Southeast.<~:::l)' line of lngberg Toail, ac- ~o.dinG to the ?lac of Tr.or.pson CTove Est~tes Second Addition, o~ file a~d of record in the office of the Register of Deeds i. ;;;'.0 lor s.Jid ',.)asl1ington CO'UT1t:)'; chence J';oTch 38 de!;TeCS, 04 =,,5- ~~c~, 02 stcones L~G~ along the Souchca~tCTly line of said ln~ y;-o.u 570 ieet; tht:ncC south 51 dcgr~c:it ' .) , )5 :r g .J ;:1 ~ :l \ ILL..:' ~ I ~cc:onc:l6 wst 150 fect; thence riortn 70 d~f:TC:(;~ , Jt; t,lir:ut t:S, JO seconds E.JH 67.18 feet; thence S<>uth 51 dC'Src,ec. , 56 ::d:-l-.:tt:S, L7 seconas ~S~ 181.69 feet; thence South 39 dC'~r~e~, J4 r.lin- \.lces, 02 second~ WesC 30e.3D Ieec:; thenec South 50 dChrce~, 25 ~inut:cs , S8 .l;ceonds E.9sc: 237 ieet; thencc So:ltn J'? dC~TeC!" 3. ~inuCC:;. 02 seconds '~est 107.5 f~et; t0enee ~orth 50 dc~ree~. 25 -minut es. 58 ~econds ,",'est 76.0 feet" thene!: l~oTt!l 39 d"e;Tei::::, , 3-" r.linuce s, 02 seconds E-ast 40.14 f e cc ; chcnce ~otth 5U d e f,T C' \! S , 25 pinutes. , 58 sec~nd5 '~esr: 255.00 ,.feet; thence: South 39 dt.- :;TCCS. Jl. ::Jinutes, 02 seconds t,.;'~st 255.no feel to the )':orthl.:.:J)':t- crly line of Foi nc Do ugl a s ::>1:ive; cr.ence North 50 degreeS, 25 ':::l~ """"'.....es 58 seconds ....es-:. .alonf; the ~ortheasterly line of point: ---..... ,. Douglas !;rive 265.00 feet to the point of beginninf:. Subject to 2- s-..:i=:ling pool cas=ent described as iollo....l: : co=cncin~ - - tlle i~tersection of the No:theasterly line of j'oint DougJos 0. .... . :::--:-ive :and the Southeasterly line of !n!=oerg Tr ., occordinl; tc.' al.., t:ne plat of'Tho,-"pson G'r cw e f::Sl..ates Second Addition on file and 0= record in the office of the Register of Deeds in anu [vT ~ilic ~ashington Co~nty; ~he::ee. North 38 clef-Tee::;, .).:. i.1inuteS, 02 ~('C., o';":.c:!s East along the S-?\.:theasccrl ':I li!':u of S.J ill 1 n;:oeT & Tr.j il SiC ~ee""''' thance $outh 51:ce:;rees, 55 minute~. 58 ~~concis t:a .~ t ISU - '-, -F'pgt,- th~~ce Xorch 78 deg:reci. 38 t;;inutcS, :~ 'j s!:eonas E..J s t i.7. 1 B -.....- , 'ee-' the:,.ce South 51 dep' ecS, S6 r.1irlur.e~. 17 !:.ccnnds !:AS t: - ..., 181.69 feet; che.nce SO-.llh 39 dcg-: ees l 3'- minut cs, 02 s~conds '" es t 35.00 fe~t. co the point of beginnin~; thence South 50 d~ grees. 25' :;linutes, 5,8 second,S J::.:Jst .$.00 fect; thc:'\ce South 39 oeg'1:ees, 3'- minutes. 02 seconds '.1<.:st: 61:l,iJO feet; chcnee Noren 50 degre.es, 25 minutes, 5 e j; econd s j.,'es t 5.00 feut:; thence North -:0 ~~STees, 34 ::::inuel:!s. 02 seccnd$ 1::o.st 6~.()() fc~t to tho pC"lint ... ~ of be g in... ins . ~ . 7c-gether ......ith .a s....i.J'r;:::;:; nb pool ease:-nunt descrihc:o as follo....s: CO:::::::lencitlg a c the intersecr.ion of che Nort:I1t:::~rerly 'lin~ of point Dougl:.s Drive and th~ Southeasterly line of In~bcr~ Trai} ,.according to the plat of Tho~pson Grove Estatt:5 s~cond AdditiCT on file and of record in eh e office of ~~e ~c~isrc:r of TJeeds i: " ' 04 'i':11r s~d for said ~:a~hinston County; thence N-ort:h 38 dc~ees. :...:ccsp 02 seconds East along the Souchcastcrly'line of s~id In~- ~ berg Trail 570 'feet; thence South 51 d~S'~c!. 55 :=1in\.Jtes, 5B seconds E.aS~ 150 feet; thence North 78 dq~rces. J8 ~inute:;;. 30 seconds E4st 67.18 feet; thence s<>u~h 51 d~l=.rc:es. 50 minutes, 17 seconds East 1S1.69 feet; thence South 39 dq;rees, 34 mir.- ~tes,. 02 seconds \.Jest JS.QO feet to the -roinl of besinning; ::hc;'1ce. North 50 degTBes. 25 pinutUS. 5['. ~eeond:< ....'cst 8:1. no fee' r:nc:Jcc $o\:r.h '39 degrect:, 3Lo =inutC~, 02 foecnnd!. \Jest' (,~.Q{) ~tt ::har..ce South 50 dCErces, 2~ ...inu( C~, ';1:: ~ ~' con d 5 [::1st ,,:J.0') ~hcncc ):orth 39 degreeti. 3l; ~inl..)t.cs , 02 seconds :,:",st. ue,C):) fc..:E: '"''''' eMU point of bcginnin!;. TOTAL. p, i2IE ~ EXHIBIT C . FORM OF TAX INCREMENT NOTE - No. R-1 $ UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF WASHINGTON IN AND FOR THE CITY OF COTTAGE GROVE - TAX INCREMENT REVENUE NOTE OF 1991 (COTTAGES OF COTTAGE GROVE LIMITED PARTNERSHIP PROJECT) The City of Cottage Grove, 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 Cottages of Cottage Grove Limited Partnership or its registered assigns (the "Registered Owner"), but only in the manner, at the times, from the sources of revenue, and to the extent hereinafter provided. The principal amount of this Note shall equal from time to time the principal amount stated above, as reduced to the extent . that such principal installments shall have been paid in Whole or in part pursuant to the terms hereof; provided that the sum of the principal amount listed above shall in no event exceed $585,000, as provided in that certain Development Agreement, dated as of June 1, 1991, as the same may be amended from time to time (the "Development Agreement"), by and between the City of Cottage Grove, Minnesota (the "City"), and Cottages of Cottage Grove Limited Partnership (the "Company"). The unpaid principal amount hereof shall bear interest from the date of this Note at the simple, non-compounded rate of seven percent (9.00%) per annum. Interest shall be computed on the basis of a 360 day year consisting of twelve (12) 30-day months. The amounts due under this Note shall be payable on August 1, 1993, and on each February 1 and August 1 thereafter to and inclUding February I, 2005, or, if the first should not be a Business Day (as defined in the Development Agreement) the next succeeding Business Day (the "Payment Dates"), provided, that such Payment Date shall be automatically extended if and to the extent required to relieve the city of any obligation to pay any Payment Amount any earlier than 30 days after it has received the statement and Compliance Certi~icate required under Section I .. 18499 C-l --------- L 3.2(4) of the Development Agreement. On each ~ayment Date the city shall pay by check or draft mailed to the person that was . the Registered Owner of this Note at the close of the last business day of the City preceding such Payment Date an amount equal to the sum of 90% of the Tax Increments (hereinafter defined) received by the City during the six month period preceding such Payment Date. All payments made by the City under this Note shall first be applied to accrued interest and then to principal. The Payment Amounts due hereon shall be payable solely from tax increments (the "Tax Increments") from the City'S Tax Increment Financing District No. 1-8 (the "Tax Increment District" ) within its Municipal Development District No. 1 which are paid to the City and which the City is entitled to retain pursuant to the provisions of Minnesota statutes, Sections 469.174 through 469.179, as the same may be amended or supplemented from time to time (the "Tax Increment Act"). This Note shall terminate and be of no further force and effect following the last Payment Date defined above, on any date upon which the City shall have terminated the Development Agreement under Section 4.2(b) thereof or the Developer shall have terminated the Development Agreement under Article V thereof, or on the date that all principal and interest payable hereunder shall have been paid in full, whichever occurs earliest. The City makes no representation or covenant, express or . implied, that the Tax Increments will be sufficient to pay, in whole or in part, the amounts which are or may become due and payable hereunder. The City's payment obligations hereunder shall be further conditioned on the fact that no Event of Default under the Development Agreement shall have occurred and be continuing at the time payment is otherwise due hereunder, but such unpaid amounts shall become payable, without interest accruing thereon _ in the meantime, if said Event of Default shall thereafter have, been cured; and, further, if pursuant to the occurrence of an Event of Default under the Development Agreement the City elects to cancel and rescind the Development Agreement, the city shall have no further debt or obligation under this Note whatsoever. Reference is hereby made to all of the provisions of the Development Agreement, including without limitation section 3.2 thereof, for a fuller statement of the rights and obligations of the City to pay the principal of this Note and the interest thereon, and said provisions are hereby incorporated into this Note as though set out in full herein. i . \, 18499 C-2 C This Note is a special, limited revenue obligation and not a general obligation of the city and is payable by the city only . from the sources and subject to the qualifications stated or referenced herein. This Note is not a general obligation of the city of Cottage Grove, Minnesota, and neither the full faith and credit nor the taxing powers of the City are pledged to the payment of the principal of or interest on this Note and no property or other asset of the City, save and except the above-referenced Tax Increments, is or shall be a source of payment of the City's obligations hereunder. This Note is issued by the City in aid of financing a project pursuant to and in full conformity with the Constitution and laws of the Sfate of Minnesota, including the Tax Increment Act. This Note may be assigned only with the consent of the City. In order to assign the Note, the assignee shall surrender the same to the City either in exchange for a new fully registered note or for transfer of this Note on the registration records for the Note maintained by the City. Each permitted assignee shall take this Note subject to the foregoing conditions and subject to all provisions stated or referenced herein. IT IS HEREBY CERTIFIED AND RECITED that all acts, condi- tions, 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, statutory or charter limitation thereon. IN WITNESS WHEREOF, City of Cottage Grove, Minnesota, by its City Council, has caused this Note to be executed by the manual signatures of its Mayor and City Administrator and has caused this Note to be issued on and dated , 1991- City Administrator Mayor . 18499 C-J "- CERTIFICATION OF REGISTRATION . It is hereby certified that the foregoing Note, as originally issued on , 1991, was on said date registered in the name of Cottages of Cottage Grove Limited Partnership 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 ADMINISTRATOR Cottages of Cottage Grove , 1991 Limited Partnership ~ . _. i . '. 18499 C-4 .- . ; ~ EXHIBIT 0 SITE IMPROVEMENTS Excavation, grading, landscaping, sod, lawn sprinklers, footings and foundations, outdoor lighting, fencing, curb and gutter, site concrete, site utilities, bituminous paving anq stripping. - , , .. . 18499 0-1 EXHIBIT E L COMPLIANCE CERTIFICATE . The undersigned of Cottages of Cottage Grove Limited Partnership, does hereby certify that as of the date of this Certificate not less than 40% of the residential units in the Cottages of Cottage Grove Limited Partnership housing project are occupied by individuals whose income is 60% or less of area median gross income, as adjusted for family size and in excess of 80% of the "fair market value" (as defined in Minnesota statutes, Section 469.174, Subdivision 11, of the Cottages of Cottage Grove Limited Partnership housing project is occupied by persons of low and moderate income. Dated this _ day of , 19 - . By Its \~ . -. ( 18499 . E~1 . , CITY OF ARDEN HILLS . MEH:&mNIXlM D1lTE : JUne 12, 1992 TO: Mayor and city council FRCM: @ Terrance R. Post, Temporary City 1\ccountant SUBJECT: Charitable Gambling Update At the May 26, 1992, Council meeting, I was directed by Council to obtain additional information regarding charitable gambling. Following are the results of this data gathering: HOW 00 OI'HER CITIES CALCULATE NEr PROFIT CDNI'RIBUrION: I surveyed 15 cities and received replies from 11. Of the 11 respondents, 100 percent of them allowed charitable gambling and only 27 percent (3/11) required a net profit contr:ib.1tion to be remitted directly back to the City. 'Ihe method of calculation for the net profit contr:ib.1tion varied as follows : . 1. Gambling receipts less prizes less allowable expenses (Arden Hills, Little Canada). 2. Same as above plus subtractions for all, except local, taxes paid (Maplewood) . 3. Same as "1." above plus subtractions for all taxes paid (Roseville) . CDUID 'IHE CITY OF ARDEN HILlS JUSTIFY 'IHE IMPOSITION OF A GAMBLING TAX? It is interesting to note that 36 percent of the respondents (4/11) in my survey have bnplernented a gambling tax. 'Ihe gambling tax is corrq:>uted on the basis of gambling receipts less prizes times the tax rate (3 at 3 percent; 1 at .1 percent) . Using the City of Arden Hills first quarter 1991 as a baseline, the licensees are collecting approximately $650,000 per quarter ($2.5 million armually) in gambling receipts less prizes. If the city were to consider llnposing a gambling tax, the amount generated would be as follows for varying rates: 1/2% 1% 2% 3% (Max) $12,500 $25,000 $50,000 $75,000 . In tenus of estimating regulatory costs to monitor gambling activity within the City, I believe it would be reasonable to anticipate the following expenses: . Charitable Gambling' Update Page Two LEGAL - (1992 YTD $500; 1991 Actual $365) Assume 1992 is more representative and that attomey time will in=ease as more "problems" surface under closer scrutiny $6,000 srAFF TIMES EXPENSES (CUrrently not being all=ted) - 'Ihe City A=untant salary is =ently allocated 1/3 each between Admin, Sewer & Water . Assume an allocation of 10 percent (approximately 30 hours per licensee) 4,000 - Intennediate A=unting Clerk assume 5 percent of time for receipting, document review and correspondence 1,500 - Mileage Re:irnJ::ursement, printing, other expenses 500 oursIDE CONI'RAc:roRS - Field "audits" of operations and 1=1 area spending documentation (7 organizations times 16 hours/year times $50/hour plus expenses) 6,000 . TOl'AL $18.000 ~ON: I believe a gambling tax rate of .75 percent is supportable and justifiable. TRP Its M92-187 . . CITY OF ARDEN HILLS MEMCIU\NDUM DATE: JUne 12, 1992 TO: Mayor and city Council ~:@) Terrance R. Post, TEmporary city 1\cco1mtant SUBJD::T: Budget Process Prior to publishing the hldget schedule, I thought it would be a worthwhile exercise to discuss and gather your input on the overall hldget process. As I have reviewe:i past annual hldget materials, it appears as though the process has begun at the staff deparbnental level and then moved through administrative review and hldget reconunendation stages. I believe that adding a guidelines phase that would define budget goals at the beginning of the process would strengthen the hldget product. If staff is challenge:i to achieve the city's hldget goals, they will deliver the mix of resources to a=amplish this target as well as . gaining significantly more ownership of the finished report. TRP Its M92-188 . . CITY OF ARDEN HILLS MDDU\NOOM DATE : June 10, 1992 w: Mayor and city council ~:@ Terrance R. Post, ~ City 1lcoountant stlIlJEl::T : Long-Term Disability (LTD) Insurance At the COuncil's last worksession meeting on May 18, 1992, staff was directed to obtain cost information regarding long-term disability insurance . As you may recall, this issue gained visibility as a result of =ent medical leave errployee, Fred Reed, apparently having no specific salary continuation after his short-term disability l:enefits are exhauste:l. It should be noted that City errployees may apply for long-term disability l:enefits provided by Minnesota Public Employees Retirement Association. Mr. Reed is =ently exploring this option. 'Ihe city's Broker, 'Ihe Ochs Agency, prepared a bid analysis of LID . carriers and recommends the proposal from Fortis Benefits. 'Ihe cost of coverage that would provide 60 percent of earnings to a maximum benefit of $3,000 per month is $202.44 per month or $10.65 per errployee per month. A review of the 1991 stanton Employee Benefits SUrvey indicates that relatively feN units of goverrnnent contriWte toward the cost of this type of benefit. TRP Its M92-184 . i CITY OF ARDEN HILLS . MEM:RlINOOM DATE: May 11, 1992 TO: All Staff ERCM: riff Terry Post, Temporary city Accountant SUBJEX:T: Employee Benefit Cost Information HEALTH INSUR1\NCE The league of Minnesota cities Insurance Trust has informed us that for 1992-1993, health insurance rates will in=ease as follows: M:lNlllLY maT DEDUCI'IBLE OPTIONS SINGLE illVERAGE FAMILY illVERAGE $150 Deductible* $159.03 $410.64 - $ In=ease 29.36 75.83 - % Increase 22~6% 22.6% . $300 Deductible** 145.28 375.61 - $ In=ease 15.61 40.80 - % Increase 12.0% 12.2% $500 Deductible** 135.46 350.25 - $ In=ease 5.79 15.44 - % In=ease 4.5% 4.6% * CUrrent Deductible Level **Higher Deductible Options Available to Group to Reduce Premium Costs - As you can see from the above table, the city is again confronted with a significant premium in=ease of about 23% at our present deductible level of $150. In the last two years, both the Single and Family rates have increased 50.9% (From $105.42 to $159.03 and from $272.20 to $410.64 respectively). There were no changes in coverage. For nCM, the deductible will remain at $150. DENl'AL INSUR1\NCE There will be no changes in the monthly rates for dental coverage. . Single coverage remains at $21. 09 and family coverage remains at $67.33. The only significant coverage change is that, beginning July 1, the . . . application of sealants for children under age 14 will be covered as a uBasic Service". LIFE INSURAN:::E AND SlICRT TERM DISABILITY '!he rate for $10,000 in employee term life. coverage (through Minnesota Mutual) remains unchanged at $3.40 per month. '!he rate for $200 in weekly benefits for Short-tenn Disability coverage (through Western Life) rem3.ins unchanged at $9.00 per month. '!he cost for $300/week maximum benefits would be $13 .50 per month. 0l'HER '!he City will continue with it's CUITent IlI3Xi1num contribution of $250 per employee per month. '!he new 1992-1993 rate increases will go into effect with the July 2nd payroll checks. If anyone would like to add or delete Health/Dental benefits, please contact Jane Lund. TP:rk . - .