HomeMy WebLinkAboutRES 21-027 AUTHORIZING THE EXECUTION OF A REDEVELOPMENT AGREEMENTCITY OF ST. ANTHONY
HENNEPIN COUNTY
STATE OF MINNESOTA
Council member �, 1 V Q ` I introduced the following resolution and moved its adoption:
RESOLUTION 21-027
RESOLUTION AUTHORIZING THE EXECUTION OF A REDEVELOPMENT
AGREEMENT
BE IT RESOLVED by the City Council (the "Council") of the City of St. Anthony, Minnesota (the
"City"), as follows:
Section 1. Recitals.
1.01. The City has heretofore established Redevelopment Project Area No. 3 (the "Project Area")
and adopted the Development Program therefor and adopted a Modification to the Development Program
(the "Development Program Modification") for the Project Area and established the Lowry Grove TIF
District (the "District") therein and adopted a Tax Increment Financing Plan (the "TIF Plan") therefor (the
Development Program Modification and the TIF Plan are referred to collectively herein as the "Program
and Plan"); all pursuant to and in conformity with applicable law, including Minnesota Statutes, Sections
469.001 to 469.047 and Sections 469.174 to 469.1794, all inclusive, as amended, (the "Act") all as reflected
in the Program and Plan.
Section 2. Approval of Redevelopment Aereement.
2.01. There has been prepared and presented to the Council for its consideration a certain
Redevelopment Agreement (the "Agreement") among the City, the St. Anthony Housing & Redevelopment
Authority, and SA Senior Living LLC (the "Developer") stating the Developer's responsibilities and the
terms and conditions of the City's assistance with the financing of a Project on the Development Property
(as such terms are defined in the Agreement) within the District.
2.02. The Council hereby approves the Agreement, together with any related documents
necessary in connection therewith (collectively, the "Development Documents") substantially in the form
presented to the Council and hereby authorizes Mayor and City Manager, in their discretion and at such
time, if any, as they may deem appropriate, to finalize and execute the same on behalf of the City, and to
carry out, on behalf of the City, the City's obligations thereunder.
2.03. The approval hereby given to the Development Documents includes approval of such
additional details therein as may be necessary and appropriate and such modifications thereof, deletions
therefrom and additions thereto as may be necessary and appropriate and approved by legal counsel to the
City and by the officers authorized herein to execute said documents prior to their execution; and said
officers are hereby authorized to approve said changes on behalf of the City. The execution of any
instrument by the appropriate officers of the City herein authorized shall be conclusive evidence of the
approval of such document in accordance with the terms hereof. In the event of absence or disability of the
officers, any of the documents authorized by this Resolution to be executed may be executed without further
act or authorization of the Council by any duly designated acting official, or by such other officer or officers
of the Council as, in the opinion of the City Attorney, may act in their behalf.
2.04. Upon execution and delivery of the Development Documents, the officers and employees of
the City are hereby authorized and directed to take or cause to be taken such actions as may be necessary
on behalf of the City to implement the Development Documents.
2.05. The Council hereby determines that the execution and performance of the Development
Documents will help realize the public purposes of the Act.
The moti p for the adoption of the foregoing resolution was duly seconded by Council member
and upon a vote being taken thereon, the following voted in favor thereof:
and the following voted against the same:
Dated: March 23, 2021
ATTEST: Azf
Nicole iller, City Clerk
Reviewed for administration:
C�—
Charlie Yunker, City Manager
DRAFT 3/23/2021
REDEVELOPMENT AGREEMENT
IN
REDEVELOPMENT PROJECT AREA NO. 3
AND
LOWRY GROVE TAX INCREMENT FINANCING DISTRICT
ST. ANTHONY,
RAMSEY COUNTY, MINNESOTA
By and Among
HOUSING AND REDEVELOPMENT AUTHORITY OF ST. ANTHONY,
CITY OF ST. ANTHONY, MINNESOTA
And
SA SENIOR LIVING LLC
for the
DEVELOPMENT 65 PROJECT
________________________
Dated as of ___________________ 1, 2021
________________________
This Document Was Drafted By:
DORSEY & WHITNEY LLP (GIT)
Suite 1500
50 South Sixth Street
Minneapolis, Minnesota 55402
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ....................................................................................................... 2
Definitions ........................................................................................................... 2
ARTICLE 2 REPRESENTATIONS AND WARRANTIES ........................................................ 4
HRA Representations ........................................................................................... 4
Developer Representations ................................................................................... 5
Use, Ownership of Development Property; Restrictions; Use of
Development Property ......................................................................................... 6
Ownership of Development Property ................................................................... 6
Declaration of Restrictive Covenants ................................................................... 6
Damage or Destruction......................................................................................... 6
Relocation Costs .................................................................................................. 6
Assessment Agreement ........................................................................................ 6
Affordability. ....................................................................................................... 6
ARTICLE 3 CONSTRUCTION OF PROJECT ........................................................................... 9
Reserved. ............................................................................................................. 9
Restrictions on Development; Conditions of City/HRA Approval. ....................... 9
Construction Plans ............................................................................................... 9
Undertaking of Project ......................................................................................... 9
Certificate of Occupancy; Certificate of Completion .......................................... 10
Progress Reports ................................................................................................ 10
Access to Development Property ........................................................................ 10
Modification; Subordination .............................................................................. 10
ARTICLE 4 DEFENSE OF CLAIMS; INSURANCE ............................................................... 11
Defense of Claims .............................................................................................. 11
Insurance ........................................................................................................... 12
ARTICLE 5 PUBLIC ASSISTANCE ....................................................................................... 13
Development Costs ............................................................................................ 13
Reimbursement for Qualified Costs. ................................................................... 13
Conditions Precedent to Provision of Public Assistance. .................................... 14
Satisfaction of Conditions Precedent .................................................................. 14
Notice of Default ............................................................................................... 15
Real Property Taxes ........................................................................................... 15
ARTICLE 6 PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER ......................... 16
Transfer of Property and Assignment ................................................................. 16
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Termination of Limitations on Transfer .............................................................. 17
ARTICLE 7 EVENT OF DEFAULT; FEES ............................................................................. 17
Events of Default ............................................................................................... 17
City and Authority Events of Default ................................................................. 18
Cure Rights ........................................................................................................ 18
Remedies on Default .......................................................................................... 18
No Remedy Exclusive ........................................................................................ 19
Waivers.............................................................................................................. 19
Agreement to Pay Attorneys’ Fees ..................................................................... 19
ARTICLE 8 GENERAL PROVISIONS .................................................................................... 20
Conflicts of Interest; HRA and City Representatives Not Individually
Liable................................................................................................................. 20
Equal Employment Opportunity ......................................................................... 20
Restrictions on Use ............................................................................................ 20
Titles of Articles and Sections ............................................................................ 20
Business Subsidies Act ...................................................................................... 20
Term of Agreement ............................................................................................ 20
Provisions Surviving Termination ...................................................................... 21
ARTICLE 9 ADMINISTRATIVE PROVISIONS ..................................................................... 21
Notices and Demands ......................................................................................... 21
Counterparts....................................................................................................... 22
Binding Effect .................................................................................................... 22
Severability ........................................................................................................ 22
Amendments, Changes and Modifications .......................................................... 22
Further Assurances and Corrective Instruments .................................................. 22
Captions ............................................................................................................. 22
Applicable Law .................................................................................................. 22
Limited Liability ................................................................................................ 22
Estoppel Certificates .......................................................................................... 23
EXHIBIT A DEVELOPMENT PROPERTY
EXHIBIT B COVENANTS AND RESTRICTIONS
EXHIBIT C PROJECT DESCRIPTION; QUALIFIED COSTS
EXHIBIT D CERTIFICATE OF COMPLETION
EXHIBIT E FORM OF ASSESSMENT AGREEMENT
EXHIBIT F FORM OF LIMITED TAX INCREMENT REVENUE NOTE
EXHIBIT G FORM OF DECLARATION OF COVENANTS AND RESTRICTIONS
(Affordable Housing)
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REDEVELOPMENT AGREEMENT
THIS Redevelopment Agreement (this “Agreement”), made and entered into as of this 1st
day of \[Month\], 2021, by and among the HOUSING AND REDEVELOPMENT AUTHORITY
OF ST. ANTHONY, a public body corporate and politic organized and existing under the laws
of the State of Minnesota (the “HRA”), the CITY OF ST. ANTHONY, a Minnesota statutory city
(the “City”), and SA SENIOR LIVING LLC, a Minnesota limited liability company (the
“Developer”).
WITNESSETH:
WHEREAS, the City and the HRA have established Redevelopment Project Area No. 3
(the “Redevelopment District”) pursuant to the Redevelopment Plan for the Redevelopment
District, as modified (as so modified the “Redevelopment Plan”);
WHEREAS, the Developer is proposing to construct a 135-unit senior care facility with
independent living, assisted living and memory care (the “Project”) in the Redevelopment District;
WHEREAS, under M.S., Sections 469.174 through 469.1794 (the “TIF Act”), the HRA is
authorized to finance certain public redevelopment costs of a redevelopment project with tax
increment revenues derived from a tax increment financing district established within a
redevelopment project area;
WHEREAS, the City and the HRA have held public hearings to consider the adoption of a
tax increment financing plan and the creation and establishment of a tax increment financing
district pursuant to the TIF Act and established Lowry Grove Tax Increment Financing District, a
“redevelopment district” (the “TIF District”) pursuant to M.S., Section 469.174, Subdivision 10,
and approved a Tax Increment Financing Plan therefor (the “TIF Plan”);
WHEREAS, in order to achieve the objectives of the Redevelopment Plan and the
TIF Plan, the HRA intends to provide assistance to the Developer through tax increment financing,
as described in the TIF Act to finance the Project;
WHEREAS, the HRA has determined that, in order to accomplish the purposes specified
in and to carry out the Redevelopment Plan and the TIF Plan, it is necessary and desirable for the
HRA to reimburse the Developer for certain costs to be incurred and paid by the Developer in
connection with the Project; and
WHEREAS, the City will apply tax increment revenues generated from the TIF District to
(i) pay or reimburse the City for administrative expenses relating to the TIF District to the extent
permitted by the TIF Act and (ii) reimburse the Developer, with interest, for certain costs incurred
in connection with the construction of the Project; and
WHEREAS, the HRA and the City believe that the development activities associated with
the Project pursuant to this Agreement are in the best interests of the City and benefit the health,
safety, morals and welfare of its residents, and comply with 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 foregoing premises and the mutual
obligations set forth in this Agreement, the parties hereto hereby agree as follows:
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ARTICLE 1
Definitions
Definitions.
In this Agreement, unless a different meaning clearly appears from the context:
“Act” means M.S., Sections 469.001 through 469.047.
“AMI” means the Area Median Income for the Minneapolis-Saint Paul-Bloomington
Metropolitan Statistical Area (including adjustments for household size), as determined by the
U.S. Department of Housing and Urban Development.
“Affordable Housing Restrictive Covenant” has the meaning set forth in Section 2.09(c).
“Affordable Units” has the meaning set forth in Section 2.09(b)(i).
“Agreement” means this Agreement, as the same may be from time to time modified,
amended or supplemented.
“Assessment Agreement” means the Assessment Agreement between the City and the
Developer in the form set forth as Exhibit E hereto.
“Available Tax Increment” means 90 percent (90%) of the tax increment revenues
generated by the Project as computed pursuant to M.S., Section 469.177, as amended from time to
time.
“Business Subsidies Act” means M.S., Sections 116J.993 through 116J.995.
“Certificate of Completion” means a certification in the form attached hereto as Exhibit D,
to be provided to the Developer pursuant to this Agreement.
“City” means the City of St. Anthony, Minnesota, a Minnesota statutory city.
“City Council” means the City Council of the City.
“Construction Plans” means the plans, specifications, drawings and related documents for
the construction work to be performed by the Developer on the Development Property.
“County” means the County of Ramsey, Minnesota, a political subdivision of the State of
Minnesota.
“Cure Rights” means the rights to cure a Default as specified in Section 7.03 before such
Default is deemed to be an Event of Default.
“Default Notice” means written notice from the City to the Developer setting forth the
Event of Default and the action required to remedy the same.
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“Developer” means SA Senior Living LLC, a limited liability company under the laws of
the State of Minnesota.
“Development Property” or “Property” means the real property described in Exhibit A
attached hereto.
“Eligibility Certification” has the meaning set forth in Section 2.09(b)(iv).
“Event of Default” means as any of the events set forth in Section 7.01 hereof.
“HRA” means the Housing and Redevelopment Authority of St. Anthony, a public body
corporate and politic organized and existing under the laws of the State.
“Legal and Administrative Expenses” means the fees and expenses incurred by the City
or HRA in connection with review and analysis of the development proposed under this Agreement
with the adoption and administration of the TIF Plan and establishment of the TIF District, the
preparation of this Agreement and the issuance of the TIF Note including, but not limited to,
attorney and municipal advisor fees and expenses;
“Mortgage” means any mortgage made by the Developer which covers, in whole or in part,
the Development Property.
“Mortgagee” means the owner or holder of a Mortgage.
“M.S.” means Minnesota Statutes.
“Project” means the 135-unit senior care facility with independent living, assisted living
and memory care.
“Public Assistance” means the Available Tax Increment to be paid under Article 5 hereof.
“Qualified Costs” means costs incurred by Developer in connection with construction of
the Project that are reimbursable from tax increment pursuant to Sections 469.174, Subd. 10 and
469.1761 of the TIF Act, which are shown on Exhibit C to this Agreement. The total principal
amount of any and all tax increment notes issued to reimburse the Developer for Qualified Costs
of the Project will not exceed $2,350,000.
“Redevelopment District” means Redevelopment Project Area No. 3, designated pursuant
to the Act.
“Redevelopment Plan” means the Redevelopment Plan developed for the Redevelopment
District.
“Restrictions” means the easements, covenants, conditions and restrictions set forth in
Exhibit B attached hereto.
“Section” means a Section of this Agreement, unless used in reference to M.S..
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“State” means the State of Minnesota.
“Termination Date” means the earlier of (i) February 1, 2032, (ii) the date the TIF Note is
paid in full, (iii) the date on which the Tax Increment District expires or is otherwise terminated,
or (iv) the date this Agreement is terminated or rescinded in accordance with its terms;
“TIF Act” means M.S., Sections 469.174 through 469.1794, as amended.
“TIF District” means Lowry Grove Tax Increment Financing District, a redevelopment
district, established by the City Council.
“TIF Note” means the Tax Increment Revenue Note (SA Senior Living LLC) to be
executed by the HRA and delivered to the Developer pursuant to Article 5 hereof, the form of
which is attached hereto as Exhibit F.
“TIF Plan” means the Tax Increment Financing Plan for the Lowry Grove Tax Increment
Financing District approved by the City Council and HRA and adopted on March 23, 2021.
“Unavoidable Delay” means a failure or delay in a party’s performance of its obligations
under this Agreement, or during any cure period specified in this Agreement which does not entail
the mere payment of money, not within the party’s reasonable control, including but not limited to
acts of God, governmental agencies (including, without limitation Executive Orders and
compliance with CDC guidelines in response to the COVID pandemic or other health crisis), the
other party, strikes, labor disputes (except disputes which could be resolved by using union labor),
fire or other casualty, or lack of materials; provided that within ten (10) days after a party impaired
by the delay has knowledge of the delay it shall give the other party notice of the delay and the
estimated length of the delay, and shall give the other party notice of the actual length of the delay
within ten (10) days after the cause of the delay has ceased to exist. The parties shall pursue with
reasonable diligence the avoidance and removal of any such delay. Unavoidable Delay shall not
extend performance of any obligation unless the notices required in this definition are given as
herein required.
ARTICLE 2
Representations and Warranties
HRA Representations.
The HRA makes the following representations to the Developer:
(a) The HRA is a public body corporate and politic organized and existing under
the laws of the State. Under the provisions of the Act, the HRA has the power to enter into
this Agreement and carry out its obligations hereunder.
(b) The HRA has designated the Redevelopment District and has adopted the
Redevelopment Plan in accordance with the provisions of the Act and has created the TIF
District and adopted the TIF Plan in accordance with the provisions of the TIF Act.
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Developer Representations.
The Developer represents and warrants that:
(a) The Developer is a Minnesota limited liability company and has power to enter
into this Agreement and has duly authorized, by all necessary corporate action, the
execution and delivery of this Agreement.
(b) Developer will, to the extent required by this Agreement, construct the Project
in accordance with the terms of this Agreement, the TIF Plan and all local, state and federal
laws and regulations.
(c) At such time or times as may be required by law, the Developer will have
complied with all local, state and federal environmental laws and regulations applicable to
the Project, and will have obtained any and all necessary environmental reviews, licenses
and clearances. The Developer has received no written notice or communication from any
local, state or federal official that the activities of the Developer or the HRA with respect
to the Development Property may be or will be in violation of any environmental law or
regulation. The Developer is aware of no facts the existence of which would cause it to be
in violation of any local, state or federal environmental law, regulation or review procedure
with respect to the Development Property.
(d) Neither the execution or 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 by, limited by, conflicts with, or results in a
breach of, any restriction, agreement or instrument to which the Developer is now a party
or by which the Developer is bound.
(e) The Developer has no knowledge or information that any member of the HRA,
City Council, or any other officer of the HRA or City has any direct or indirect financial
interest in the Developer, the Development Property, or the Project.
(f) The Developer will obtain, in a timely manner, all required permits, licenses
and approvals, and will meet, in a timely manner, all requirements of all local, state and
federal laws and regulations which must be obtained or met in connection with the Project.
Without limitation to the foregoing, the Developer will request and seek to obtain from the
HRA or the City all necessary variances, conditional use permits and zoning changes.
(g) The Developer would not undertake the Project without the financial assistance
to be provided by the City pursuant to this Agreement and the TIF Plan.
(h) Apart from the assistance to be provided under this Agreement, the Developer
shall pay all standard charges and fees due with respect to real estate developments and
allocable to the Development Property under City ordinances and the City Code, including
but not limited to special assessments for local improvements, sewer and water use charges,
building permit fees, plat fees, inspection fees, storm water fees and the like used against
the Development Property.
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Use, Ownership of Development Property; Restrictions; Use of Development
Property. The Developer’s use of the Development Property shall be subject to and in compliance
with all of the conditions, covenants, restrictions and limitations imposed by this Agreement, the
Restrictions, and all applicable laws, ordinances and regulations.
Ownership of Development Property. The Developer hereby represents and
warrants that prior to commencement of construction of the Project that Developer will be the
owner in fee simple of the Development Property and that there are no liens, defects or other
encumbrances upon title to the Development Property that would hinder the development of the
Development Property by the Developer as contemplated by this Agreement.
Declaration of Restrictive Covenants. The Developer shall prepare, execute, and
record on the title to the Development Property a Declaration of Restrictive Covenants, in form
approved by the City, which includes the Restrictions set forth in Exhibit B. If the Developer
determines that operation of the Development Property and the Project would endanger the
financial viability thereof or the Developer’s lender(s) requests reasonable modifications, the
Developer may request the HRA or City Council to consent to the amendment, modification or
termination of any of the restrictions in any respect. The HRA and the City are under no obligation
to amend, modify or terminate any of the restrictions and may, in their sole and absolute discretion,
refuse to do so.
Damage or Destruction. Subject to any mortgage requirements that would require
the Developer to act sooner, upon any damage or destruction of the Project, or any portion thereof,
by fire or other casualty, the Developer shall within one hundred twenty (120) days after such
damage or destruction, commence the process required to repair, reconstruct and restore the
damaged or destroyed Project, or portion thereof, to substantially the same condition or utility
value as existed prior to the event causing such damage or destruction and shall diligently pursue
such repair, reconstruction and restoration.
Relocation Costs. The Developer shall pay all relocation costs or expenses required
under federal or state law to be paid to any owner or occupant of the Development Property as a
result of the Project, and shall indemnify and hold harmless the HRA and the City, their governing
body members, officers, and agents including the independent contractors, consultants, and legal
counsel, servants and employees thereof from any such relocation costs and expenses in
accordance with the provisions of Section 4.01.
Assessment Agreement. The Assessment Agreement shall be executed by the
Developer and the HRA as of the date hereof, and the Developer shall cause the Assessment
Agreement and an executed Assessor’s Certificate attached as Exhibit C thereto to be recorded on
the title to the Development Property.
Affordability.
(a) The Development Property shall not be used for any purpose other than a senior
care facility with independent living, assisted living and memory care meeting the
requirements set forth in this Section 2.09, without the prior written approval of the City
and the HRA during the period commencing on the date hereof and until no earlier than
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the 15th anniversary of the date the certificate of completion is issued (the “Qualified
Project Period”).
(b) The covenants and restrictions set forth in this Section and contained in the
Affordable Housing Restrictive Covenant shall apply during the Qualified Project Period.
i. Affordable Units. Developer covenants that at least seven (7) units
or, five percent (5%) of the total units, within the Project (the
“Affordable Units”) will be studio or one-bedroom independent
living or assisted living units reserved for households who have a
combined gross annual income which does not exceed 50% of the
Area Median Income (“AMI”).
Any changes in the affordability levels of the Affordable Units or
the type of Affordable Units set forth herein shall require the prior
written approval of the City and the HRA, which such consent will
not be unreasonably conditioned, delayed, or withheld. For
avoidance of doubt, it will be deemed reasonable if the City or HRA
withholds its consent to any proposed change in affordability levels
or types of Affordable Units that do not comply with applicable law.
ii. Qualifying Tenants. Each Affordable Unit shall be leased to and
occupied (or held vacant and available for occupancy) for the
duration of the Qualified Project Period only by a household who,
at initial occupancy, has a combined gross annual income which
does not exceed the AMI threshold. Each subsequent tenant of the
Affordable Unit must be a Qualifying Tenant.
iii. Rental Rates. The monthly rental cost for each Affordable Unit will
include rent and utility costs for the metropolitan area that includes
the City adjusted for bedroom size and calculated annually by the
Department of Housing and Urban Development and posted by
Minnesota Housing for establishing rent limits for the Housing Tax
Credit Program. During the Qualified Project Period, the form of
lease to be utilized by Developer in renting Affordable Units will
provide that rental rates charged to any tenant of an Affordable Unit
cannot be increased more than once in any 12-month period.
iv. Certification of Tenant Eligibility. No tenant household shall be
approved by Developer for initial occupancy of an Affordable Unit
unless and until Developer has determined (through verification of
income, assets, expenses, and deductions) whether such tenant
household is a Qualifying Tenant for the applicable Affordable Unit.
Each person who is intended to be a Qualifying Tenant will be
required at the commencement of the initial lease of an Affordable
Unit to sign and deliver to Developer a “Certification of Tenant
Eligibility” in a form reasonably approved by the Authority (the
7
“Eligibility Certification”), in which the prospective tenant certifies
as to qualifying as an applicable Qualifying Tenant. Eligibility
Certifications may be obtained no more than 120 days before a
Qualifying Tenant occupies an Affordable Unit. In addition, the
person will be required to provide whatever other information,
documents, or certifications are deemed reasonably necessary by the
Authority to substantiate the Eligibility Certification. Eligibility
Certifications will be maintained on file by Developer with respect
to each Qualifying Tenant who resides or resided in an Affordable
Unit for a period of 10 years following the end of the Qualified
Project Period, unless, following written request from the Developer
identifying Eligibility Certifications that Developer wishes to
discard the HRA consents to the Developer’s request to discard said
Eligibility Certification. Developer must re-examine and verify the
income of each tenant household living in an Affordable Unit
annually unless, during such year, no Affordable Unit is occupied
by a new tenant household whose income exceeds the applicable
income limit for Qualifying Tenants. In addition, no re-certification
shall be required if a Qualifying Tenant moves to a different
Affordable Unit.
v. Additional Affordable Housing Requirements.
A. No security deposit shall be required in excess of the amount of one
month of rent in connection with any Affordable Unit.
B. During the final year of the affordability period, new leases for the
Affordable Units must be for a term of no less than six months, and
such newly leased Affordable Units will be subject to all the
requirements of this Section until the expiration of such new leases.
C. Developer shall, upon annual invoicing, reimburse the City (or such
subdivision of the City administrating affordable housing
requirements) for reasonable third-party expenses related to
monitoring of Developer’s compliance with this Section and the
Affordable Housing Restrictive Covenant (plus any additional costs
necessitated by re-inspections for noncompliance) and thereafter be
subject to reasonable adjustment from time to time. As of the
Effective Date, $500.00 is an estimated annual cost based on other
affordable housing projects in the City, following full occupancy of
the Affordable Units.
(c) The requirements of this Section will be set forth in a separate restrictive
covenant in substantially the form attached to this Agreement as Exhibit G (the “Affordable
Housing Restrictive Covenant”) and recorded against the Development Property.
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(d) As a condition precedent to receiving the Public Assistance in a given year, the
Developer shall be in compliance with the requirements of this Section in such year.
ARTICLE 3
Construction of Project
Reserved.
Restrictions on Development; Conditions of City/HRA Approval. The Developer
may not construct or permit any Development to occur on any part of the Development Property
until the Developer satisfies the conditions described in this Section. After the Developer satisfies
the conditions described in this Section, the Developer may not, except upon the termination of
this Agreement or otherwise as provided herein, construct or permit any Development to occur on
any part of the Development Property until the City has approved the Construction Plans.
Construction Plans. Prior to commencing construction of the Project, the
Developer shall make available to the City for review Construction Plans for the Project. The
Construction Plans shall provide for construction of the Project in conformity with the
Redevelopment Plan, the TIF Plan, this Agreement, and all applicable state and local laws and
regulations. The City shall approve the Construction Plans in writing if, in the reasonable
discretion of the City, the Construction Plans: (a) conform to the Redevelopment Plan, the
Modification, the TIF Plan, this Agreement, and to any subsequent amendments thereto approved
by the City; (b) conform to all applicable federal, state and local laws, ordinances, rules and
regulations; (c) are adequate to provide for construction of the Project; and (d) no Event of Default
has occurred.
No approval by the City shall relieve the Developer of the obligation to comply with the
terms of this Agreement, applicable federal, state and local laws, ordinances, rules and regulations,
or to properly construct the Project. No approval by the City shall constitute a waiver of an Event
of Default. Any disapproval of the Construction Plans shall set forth the reasons therefore and
shall be made within thirty (30) days after the date of their receipt by the City. If the City rejects
the Construction Plans, in whole or in part, the Developer shall submit new or corrected
Construction Plans within thirty (30) days after written notification to the Developer of the
rejection. The provisions of this Section relating to approval, rejection and resubmission of
corrected Construction Plans shall continue to apply until the Construction Plans have been
approved by the City.
Undertaking of Project.
(a) Subject to Unavoidable Delay, Developer shall commence the Project by
July 31, 2021, and cause the Project to be completed in accordance with the terms of this
Agreement by July 31, 2023.
(b) All work with respect to the Project shall be in substantial conformity with the
Construction Plans approved by the City.
(c) The Developer shall not interfere with, or construct any improvements over,
any public street or utility easement without the prior written approval of the City. All
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connections to public utility lines and facilities shall be subject to approval of the City and
any private utility Developer involved. Except for public improvements, which are
undertaken by the City or other governmental body and assessed against benefited
properties, all street and utility installations, relocations, alterations and restorations shall
be at the Developer’s expense and without expense to the City. The Developer, at its own
expense, shall replace any public facilities or utilities damaged during the Project by the
Developer or its agents or by others acting on behalf of or under the direction or control of
the Developer.
Certificate of Occupancy; Certificate of Completion.
(a) Upon the Developer’s request following the City’s issuance of a certificate of
occupancy with respect to the Project, the City will furnish the Developer with a Certificate
of Completion for the Project, in substantially the form attached hereto as Exhibit D, as
conclusive evidence of satisfaction and termination of the agreements and covenants of
this Agreement with respect to the obligations of the Developer to complete the Project.
The furnishing by the City of such Certificate of Completion shall not constitute evidence
of compliance with or satisfaction of any obligation of the Developer to any Mortgagee.
(b) If the City shall refuse or fail to provide a Certificate of Completion following
the Developer’s request, the City shall, within ten (10) days after the Developer’s request,
provide the Developer with a written statement specifying in what respects the Developer
has failed to complete the Project in accordance with this Agreement, or is otherwise in
default, and what measures or acts will be necessary, in the reasonable opinion of the City,
for the Developer to obtain the Certificate of Completion.
Progress Reports. Until the Certificate of Completion is issued for the Project, the
Developer shall make, in such detail as may reasonably be required by the HRA or the City, and
forward to the HRA and the City, within ten (10) days of a request by either or both the HRA and
the City, a written report as to the actual progress of construction.
Access to Development Property. The Developer agrees to permit the City and
HRA and any of their officers, employees or agents access to the Development Property at all
reasonable times following reasonable notice, for the purpose of inspection of all work being
performed in connection with the Project; provided, however, that neither the City nor HRA shall
have an obligation to inspect such work.
Modification; Subordination. The HRA agrees to subordinate its rights under this
Agreement to the holder of any Mortgage securing construction or permanent financing, in
accordance with the terms of a subordination agreement in a form reasonably acceptable to the
HRA.
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ARTICLE 4
Defense of Claims; Insurance
Defense of Claims.
(a) The Developer shall indemnify and hold harmless the HRA, the City, their
governing body members, officers, and agents including the independent contractors,
consultants, and legal counsel, servants and employees thereof (hereinafter, for the
purposes of this Section, collectively the “Indemnified Parties”) for any expenses
(including reasonable attorneys’ fees), loss, damage to property, or death of any person
occurring at or about, or resulting from any defect in, the Project; provided, however, the
Developer shall not be required to indemnify any Indemnified Party for any claims or
proceedings arising from any negligent or unlawful acts or omissions of such Indemnified
Party. Promptly after receipt by the HRA or the City of notice of the commencement of
any action in respect of which indemnity may be sought against the Developer under this
Section 4.01, such person will notify the Developer in writing of the commencement
thereof, and, subject to the provisions hereinafter stated, the Developer shall assume the
defense of such action (including the employment of counsel, who shall be counsel
reasonably satisfactory to the HRA and the City) and the payment of expenses insofar as
such action shall relate to any alleged liability in respect of which indemnity may be sought
against the Developer. The HRA and the City shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall not be at the expense of the Developer unless the
employment of such counsel has been specifically authorized by the Developer.
Notwithstanding the foregoing, if the HRA or the City has been advised by independent
counsel that there may be one or more legal defenses available to it which are different
from or in addition to those available to the Developer, the Developer shall not be entitled
to assume the defense of such action on behalf of the HRA or the City, but the Developer
shall be responsible for the reasonable fees, costs and expenses (including the employment
of counsel) of the HRA and the City in conducting their defense. The Developer shall not
be liable to indemnify any person for any settlement of any such action effected without
the Developer’s consent. The omission to notify the Developer as herein provided will not
relieve the Developer from any liability which they may have to any Indemnified Party
pursuant hereto, otherwise than under this Section.
(b) The Developer agrees to protect and defend the Indemnified Parties, and further
agrees to hold the aforesaid harmless, from any claim, demand, suit, action or other
proceeding whatsoever by any person or entity arising or purportedly arising from the
actions or inactions of the Developer (or 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 HRA or the City in this Agreement or to any actions undertaken by the HRA or the
City which are not contemplated by this Agreement but shall, in any event, apply to any
pecuniary loss or penalty (including interest thereon from the date the loss is incurred and
funded or penalty is paid by the HRA or the City at a rate equal to the prime rate) as a result
of the Project, as constructed and operated by the Developer, causing the TIF District to
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cease to qualify as a “redevelopment district” under the TIF Act or to violate limitations as
to the use of the revenues therefrom as set forth in the TIF Act.
(c) All covenants, stipulations, promises, agreements and obligations of the HRA
and the City contained herein shall be deemed to be the covenants, stipulations, promises,
agreements and obligations of the HRA and the City and not of any governing body
member, officer, agent, servant or employee of the HRA or the City, as the case may be.
Insurance.
(a) Subject to the terms of any Mortgage relating to the Development Property, the
Developer shall keep and maintain the Development Property and Project at all times
insured against such risks and in such amounts, with such deductible provisions, as are
customary in connection with facilities of the type and size comparable to the Project, and
the Developer shall carry and maintain, or cause to be carried and maintained, and pay or
cause to be paid timely the premiums for direct damage insurance covering all risks of loss,
including, but not limited to, the following:
1. fire
2. extended coverage perils
3. vandalism and malicious mischief
4. boiler explosion (but only if steam boilers are present)
5. collapse
on a replacement cost basis in an amount equivalent to the full insurable value thereof.
“Full insurable value” shall include the actual replacement cost of the Project, exclusive of
foundations and footings, without deduction for architectural, engineering, legal or
administrative fees or for depreciation. Insurance in effect with respect to any portion of
the Project to be rehabilitated or renovated as a part of the Project prior to the issuance by
the City of a Certificate of Completion under Section 3.03 hereof with respect thereto shall
be maintained on an “all-risk” builder’s risk basis during the course of construction. The
policies required by this Section 4.02 shall be subject to a no coinsurance clause or contain
an agreed amount clause, and may contain a deductibility provision not exceeding $25,000.
(b) Subject to the terms of any Mortgage relating to the Development Property,
policies of insurance required by this Section 4.02 shall insure and be payable to the
Developer, and shall provide for release of insurance proceeds to the Developer for
restoration of loss, subject to commercially reasonable conditions imposed by Developer’s
lender(s). The City shall be furnished certificates showing the existence of such insurance.
In case of loss, the Developer is hereby authorized to adjust the loss and execute proof
thereof in the name of all parties in interest. On an annual basis and from time to time at
the City or the HRA’s request, the Developer shall file with the City or the HRA, as
applicable, a certificate of insurance for each of the policies required under this Section.
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ARTICLE 5
Public Assistance
Development Costs. The Developer has agreed to and shall be responsible to pay
all of its respective costs of the Project, as herein provided. However, the HRA, in order to
encourage the Developer to proceed with the construction of the Project, and to assist the
Developer in paying the costs thereof, is willing to provide the Public Assistance and thereby
reimburse the Developer for Qualified Costs, as permitted by the TIF Act and in accordance with
the TIF Plan, that will be incurred by the Developer to construct the Project.
Reimbursement for Qualified Costs.
The HRA agrees to reimburse the Developer, using Available Tax Increment on a
pay-as-you-go basis, for Qualified Costs of the Project. The City shall, upon completion of the
Project and the issuance of a the Certificate of Completion therefor, make reimbursement
payments pursuant to a limited revenue tax increment note for the Project, the form of which is
attached hereto as Exhibit F, with said payments of principal and interest to be made on the dates
(the “Payment Dates”) specified in the TIF Note, subject to the following terms and conditions:
(a) The total principal amount of any and all TIF notes issued for the Project will
not exceed two million three hundred fifty thousand dollars ($2,350,000).
(b) The unpaid principal of the TIF Note shall bear simple non-compounding
interest from the date of issuance of the TIF Note, at the lesser of 4.00% per annum or the
interest rate on the financing that the Developer obtains for the construction of the Project.
Interest shall be computed on the basis of a 360 day year consisting of twelve (12) 30-day
months.
(c) No payments shall be made by the HRA to the Developer unless and until the
Developer has provided written evidence reasonably satisfactory to the HRA that
(i) Qualified Costs in the amount to be reimbursed from the Available Tax Increment have
been incurred for the Project and paid by the Developer and (ii) the Certificate of
Completion has been issued as contemplated in Section 3.03 hereof.
(d) The HRA shall be obligated to make the payments to the Developer required
pursuant to this Section 5.02 only from and to the extent of the Available Tax Increment
actually received from the TIF District for any tax year, and such payments shall never be
considered to be a general obligation or indebtedness of the HRA.
(e) The HRA will retain 10% of the Tax Increment generated for administrative
costs and apply the retained Tax Increment first to pay any administrative expenses relating
to the Development Property to the extent permitted by the Tax Increment Act and to the
extent that such expenses have not been paid or reimbursed to the HRA by the Developer.
Any of the retained Tax Increment remaining after the payment of any administrative
expenses then due and owing (the “Available Tax Increment”) shall be paid to the
Developer for reimbursement of the Qualified Costs plus interest on the Payment Dates.
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(f) Upon thirty (30) days’ written notice to the Developer, the HRA may prepay all
or a portion of the outstanding principal balance due to the Developer pursuant to this
Section 5.02 without penalty, on any date at a prepayment price equal to the outstanding
principal balance to be prepaid plus accrued interest to the prepayment date.
(g) The HRA shall not be obligated to make any payments hereunder subsequent
to the termination of this Agreement as provided in Section 8.06 hereof, and any amounts
remaining unpaid as of such date (other than by reason of failure of the HRA to comply
with the terms of this Agreement) shall be considered forgiven by the Developer and shall
cease to be owing.
(h) The Developer may assign its rights under this Agreement (including the
payments to be made to the Developer hereunder) to secure financing incurred by the
Developer to pay costs of the Project, including but not limited to any Mortgagee, or, after
Certificate of Completion has been issued by the City, to third parties.
Conditions Precedent to Provision of Public Assistance.
Upon payment by the Developer of Qualified Costs for the Project, the Developer will
deliver to the HRA an instrument executed by the Developer (i) specifying the amount and nature
of the Qualified Costs of the Project to be reimbursed and (ii) certifying that such costs have been
paid to third parties unrelated to the Developer, or if any costs have been paid to third parties
related to the Developer, that such costs do not exceed the reasonable and customary costs of
services, labor or materials of comparable quality, dependability, availability and other pertinent
criteria and that such costs have not previously been contained in an instrument furnished to the
City pursuant to this Section 5.03. Together with such instrument, the Developer shall deliver to
the HRA evidence reasonably satisfactory to the HRA of the payment by the Developer of such
costs to be reimbursed. Thereafter, the HRA will provide to the Developer reimbursement for the
Project, constituting a portion of the Public Assistance described in this Article 5, paid up to the
maximum amount then due and payable, in accordance with Section 5.02.
Satisfaction of Conditions Precedent. Notwithstanding anything to the contrary
contained herein, the City’s obligation to reimburse the Developer for Qualified Costs shall be
subject to satisfaction, or waiver in writing by the HRA, of all of the following conditions
precedent:
(a) the conditions precedent in this Section 5.04 hereof have been satisfied;
(b) the City shall have issued a certificate of occupancy with respect to the
Project;
(c) the Developer shall have cured or obtained title insurance (including by an
applicable endorsement) of any title defects with respect to the Development Property;
(d) the Developer shall not be in default under the terms of this Agreement
beyond any applicable cure period;
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(e) the Developer shall have executed and recorded on the title to the
Development Property, the Declaration of Restrictive Covenants, required by Section 2.05
hereof, as set forth in Exhibit B;
(f) Developer shall have executed and recorded on the title to the Development
Property, the Affordable Housing Restrictive Covenant, required by Section 2.09(c), as set
forth in Exhibit G; and shall be in compliance with the affordability requirements described
therein;
(g) the Developer shall have closed on or received commitments in financing
sufficient to pay all costs to be incurred in connection with the Project.
In the event that all of the above conditions required to be satisfied as provided in this
Section 5.04 have not been satisfied by December 31, 2022, either the HRA or the Developer may
terminate this Agreement. Upon such termination, the provisions of this Agreement relating to the
Project shall terminate and, except as provided in Article 8, neither the Developer nor the HRA
shall have any further liability or obligation to the other hereunder.
Notice of Default. Whenever the HRA or 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 this Agreement, the HRA or the City shall at the same time forward a copy of
such notice or demand to each investor, lender, or holder of any permitted mortgage, lien or other
similar encumbrance at the last address of such holder shown in the records of the HRA or the
City. Each such investor, lender, or holder shall have the right, at its option, to cure or remedy
such breach or default and to add the cost thereof to the mortgage debt and the lien of its mortgage;
provided that if the breach or default is with respect to construction of the Project, nothing
contained in this Agreement shall be deemed to permit, authorize or require such holder, either
before or after foreclosure or action in lieu thereof, to undertake or continue the construction or
completion of the Project without first having expressly assumed the obligation to the HRA and
the City, by written agreement satisfactory to the HRA and the City, to complete the construction
the Project in accordance with the plans and specifications therefor and this Agreement. Following
said assumption, any such holder who shall properly complete the construction of the Project shall
be entitled, upon written request made to the HRA and the City, to a certification by the HRA and
the City to such effect in the manner provided in Section 3.03.
Real Property Taxes. Prior to the Termination Date, the Developer shall pay all
real property taxes payable with respect to all and any parts of the Development Property acquired
and owned by it until the Developer’s obligations have been assumed by any other person pursuant
to the provisions of this Agreement.
The Developer agrees that prior to the Termination Date:
(1) It will not seek administrative review or judicial review of the
applicability of any tax statute relating to the ad valorem property taxation of real
property contained on the Development Property determined by any tax official to
be applicable to the Project or the Developer or raise the inapplicability of any such
tax statute as a defense in any proceedings with respect to the Development
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Property, including delinquent tax proceedings; provided, however, “tax statute”
does not include any local ordinance or resolution levying a tax;
(2) It will not seek administrative review or judicial review of the
constitutionality of any tax statute relating to the taxation of real property contained
on the Development Property determined by any tax official to be applicable to the
Project or the Developer or raise the unconstitutionality of any such tax statute as a
defense in any proceedings, including delinquent tax proceedings with respect to
the Development Property; provided, however, “tax statute” does not include any
local ordinance or resolution levying a tax;
(3) It will not seek any tax deferral or abatement, either presently or
prospectively authorized under M.S., Section 469.1813, or any other State or
federal law, of the ad valorem property taxation of the Development Property
between the date of execution of this Agreement and the Termination Date.
5.07 Action to Reduce Taxes. The Developer may seek through petition or other means
to have the market value for the Development Property reduced. Until the TIF Note is fully paid,
such activity must be preceded by written notice from the Developer. Upon receiving such notice,
or otherwise learning of the Developer’s intentions, the HRA or City may suspend payments due
under the TIF Note until the actual amount of the reduction is determined, whereupon the HRA or
City will make the suspended payments less any amount that the HRA or City is required to repay
the County as a result any reduction in market value of the Development Property. During the
period that the payments are subject to suspension, the HRA or City may make partial payments
on the TIF Note if it determines, in its sole and absolute discretion, that the amount retained will
be sufficient to cover any repayment which the County may require. The HRA’s or the City’s
suspension of payments on the TIF Note pursuant to this Section shall not be considered a default
under this Agreement.
5.08 Legal and Administrative Expenses. The Developer shall pay all Legal and
Administrative Expenses.
ARTICLE 6
Prohibitions Against Assignment and Transfer
Transfer of Property and Assignment. Other than leases made in the ordinary
course of business, the Developer has not made and will not make, or suffer to be made, any total
or partial sale, assignment, conveyance, lease, or other transfer, with respect to this Agreement,
the Project or Property or any part thereof or any interest therein (other than any Mortgage or
Mortgages securing financing for the Project or other than any assignment of the payments to be
made to the Developer under Section 5.02 hereof that is permitted under Section 5.02 hereof), or
any contract or agreement to do any of the same, without the prior written approval of the HRA
and the City, which shall not be unreasonably withheld or delayed. The HRA and the City shall
be entitled to require as conditions to any such approval that: (i) the proposed transferee have the
qualifications and financial responsibility, as reasonably determined by the HRA and the City,
necessary and adequate to fulfill the remaining obligations to be undertaken by Developer in this
Agreement; (ii) the proposed transferee, by recordable instrument satisfactory to the HRA and the
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City shall, for itself and its successors and assigns, assume all of the obligations of the Developer
under this Agreement. No transfer of, or change with respect to, ownership in the Project or
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 HRA
or the City of or with respect to any rights or remedies or controls provided in or resulting from
this Agreement with respect to the Project or Property and the completion of the Project that the
HRA or the City would have had, had there been no such transfer or change. There shall be
submitted to the HRA and the City for review all legal documents relating to the transfer.
Notwithstanding the foregoing, this Section 6.01 shall not apply to any transfer or
assignment to (i) any entity controlling, controlled by or under common control with the Developer
(or the members of any entity member) or (ii) any entity in which the majority equity interest is
owned by the parties that have a majority equity interest in the Developer.
Provided that no Event of Default exists hereunder, any such transfer or assignment shall
release the Developer from its obligations hereunder upon execution and delivery to the HRA and
the City by the transferee or assignee of an instrument in form and substance satisfactory to the
HRA and the City by which the transferee or assignee assumes the remaining obligations of the
Developer hereunder.
In the absence of specific written agreement by the HRA and the City to the contrary, no
such transfer or approval by the HRA and the City thereof shall be deemed to relieve the
Developer, or any other party bound in any way by this Agreement or otherwise with respect to
the completion of the Project, from any of their obligations with respect thereto.
Termination of Limitations on Transfer. The provisions of Section 6.01 shall
terminate at such time as the Certificate of Completion has been issued by the City under
Section 3.03 of this Agreement with respect to the Project; provided, however, that any assignment
of the payments to be made to the Developer under Section 5.02 may only be assigned as permitted
under Section 5.02 hereof.
ARTICLE 7
Event of Default; Fees
Events of Default. Subject to Unavoidable Delay, 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), any one or more of the following events
which occurs and continues for more than thirty (30) days after written notice by the defaulting
party of such default (and the term “default” shall mean any event which would with the passage
of time or giving of notice, or both, be an “Event of Default” hereunder):
(a) Subject to Cure Rights, failure of the Developer to construct or reconstruct the
Project as required hereunder.
(b) Failure of the Developer to furnish the Construction Plans as required
hereunder.
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(c) Failure of the Developer to pay to the HRA any amounts required to be paid by
the Developer hereunder.
(d) Subject to Cure Rights, failure of the Developer or the HRA to observe and
perform any other covenant, condition, obligation or agreement on its part to be observed
or performed hereunder.
(e) Failure of the Developer to pay any taxes on the Development Property as they
become due.
(f) Filing of any voluntary petition in bankruptcy or similar proceedings by the
Developer; general assignment for the benefit of creditors made by the Developer or
admission in writing by the Developer of inability to pay its debts generally as they become
due; or filing of any involuntary petition in bankruptcy or similar proceedings against the
Developer which are not dismissed or stayed within sixty (60) days.
City and Authority Events of Default. Subject to Cure Rights and Unavoidable
Delays, the failure of the City or the Authority to observe or perform any covenant, condition,
obligation or agreement on its part to be observed or performed under this Agreement, and the
continuation of such failure for a period of 30 days after written notice of such failure from any
party hereto shall be an Event of Default for the City or the Authority.
Cure Rights. If a Default occurs under Section 7.01 (a) or (d) or Section 7.02, which
reasonably requires more than 30 days to cure, such Default shall not constitute an Event of
Default, provided that the curing of the Default is promptly commenced upon receipt by the
defaulting party of the notice of the Default, and with due diligence is thereafter continuously
prosecuted to completion and is completed within a reasonable period of time, and provided that
the defaulting party keeps the non-defaulting party well informed at all times of its progress in
curing the Default.
Remedies on Default. In the event the HRA or the City desires to exercise any of
its rights or remedies as provided herein or otherwise available to the HRA or the City at law or in
equity, the HRA or the City shall first provide written notice to Developer setting forth with
specific particularity the Event of Default and the action required to cure or remedy the same (the
“Default Notice”). Developer or any transferee or assignee under Section 6.01 hereof, shall have
thirty (30) days from receipt of a Default Notice to cure or remedy the Event of Default specified
in the Default Notice, subject to Cure Rights for such longer period as may be reasonably required
to complete the cure as soon as reasonably possible under the circumstances. If, following
Developer’s receipt of a Default Notice, Developer does not cure or remedy the Event of Default
therein specified within the time provided above, subject to Cure Rights, the HRA or the City may
take any one or more of the following actions at any time prior to Developer’s curing or remedying
the Event of Default:
(a) Suspend its performance under this Agreement until it receives assurances from
Developer, deemed adequate by the HRA or the City, that Developer will cure its default
and continue its performance under this Agreement.
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(b) In the case of a material default that is not cured, Terminate all rights of
Developer under this Agreement.
(c) Withhold the Certificate of Completion.
(d) Take whatever action at law or in equity may appear necessary or desirable to
the HRA or the City to enforce performance and observance of any obligation, agreement,
or covenant of Developer under this Agreement.
In the event the HRA or City should fail to observe or perform any covenant, agreement or
obligation of the HRA or City on their part to be observed and performed under this Agreement,
Developer may, subject to Cure Rights, take any one or more of the following actions:
(a) Suspend its performance under this Agreement until it receives assurances from
the HRA or City deemed adequate by Developer, that the HRA or City will cure its default
and continue its performance under this Agreement.
(b) In the case of a material default that is not cured, Terminate all rights of the
HRA or the City under this Agreement.
(c) Take whatever action at law or in equity may appear necessary or desirable to
Developer to enforce performance and observance of any obligation, agreement, or
covenant of the HRA or the City under this Agreement.
No Remedy Exclusive. No remedy herein conferred upon or reserved to the HRA,
the City, or to the Developer 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. In order to entitle the HRA,
the City, or Developer to exercise any remedy reserved to them, it shall not be necessary to give
notice, other than such notice as may be required under this Agreement.
Waivers. All waivers by any party to this Agreement shall be in writing. If any
provision of this Agreement is breached by any party and thereafter waived by another 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.
Agreement to Pay Attorneys’ Fees. Whenever any Event of Default occurs and the
HRA or the City shall employ attorneys or incur other expenses for the collection of payments due
or to become due or for the enforcement or performance or observance of any obligation or
agreement on the part of the Developer herein contained, the Developer agrees that it shall, on
demand therefor, pay to the HRA or the City the reasonable fees of such attorneys and such other
reasonable expenses so incurred by the HRA or the City.
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ARTICLE 8
General Provisions
Conflicts of Interest; HRA and City Representatives Not Individually Liable. No
member, official, employee, or consultant or employee of a consultant of the HRA or the City shall
have any personal interest, direct or indirect, in this Agreement, nor shall any such member,
official, consultant or the consultant’s employees or employee participate in any decision relating
to this Agreement which affects his or her personal interests or the interests of any corporation,
partnership, or association in which he or she is directly or indirectly interested. No member,
official, consultant or consultant’s employee, or employee of the HRA or the City shall be
personally liable to Developer, or any successor in interest, in the event of any default or breach
by the HRA or the City or for any amount which may become due to Developer or successors or
on any obligations under the terms of this Agreement.
Equal Employment Opportunity. Developer, for itself and its successors and
assigns, agrees that during the construction of the Project it will comply with any applicable
affirmative action and nondiscrimination laws or regulations.
Restrictions on Use. Developer agrees for itself, and its successors and assigns,
and every successor in interest to the Development Property, or any part thereof, that Developer,
and such successors and assigns, shall, prior to the termination of the Affordable Housing
Restrictive Covenant, devote the Development Property to, and only to and in accordance with,
the uses specified in the Redevelopment Plan, this Agreement and other agreements entered into
between the Developer and the City, and shall not discriminate upon the basis of race, color, creed,
religion, national origin, sex, marital status, disability, status with regard to public assistance,
sexual orientation, and familial status in the sale, lease, or rental or in the use or occupancy of the
Development Property or any improvements erected or to be erected thereon, or any part thereof.
Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections
of this Agreement are inserted for convenience of reference only and shall be disregarded in
construing or interpreting any of its provisions.
Business Subsidies Act.
The Developer represents that the financial assistance received by the Developer pursuant
to this Agreement will be used to create housing. Accordingly, the parties agree and understand
that the financial assistance described in this Agreement does not constitute a business subsidy
within the meaning of the Business Subsidy Act. The Developer releases and waives any claim
against the HRA and its governing body members, officers, agents, servants and employees thereof
arising from application of the Business Subsidy Act to this Agreement, including without
limitation any claim that the HRA failed to comply with the Business Subsidy Act with respect to
this Agreement.
Term of Agreement. This Agreement shall terminate upon the earlier to occur of
(i) February 1, 2032, (ii) the date the TIF Note is paid in full, (iii) the date on which the Tax
Increment District expires or is otherwise terminated, or (iv) the date this Agreement is terminated
or rescinded in accordance with its terms; it being expressly agreed and understood that the
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provisions of this Agreement are intended to survive the expiration and satisfaction of any security
instruments placed of record contemporaneously with this Agreement, if such expiration and
satisfaction occurs prior to the expiration of the term of this Agreement, as stated in this Section
8.06.
Provisions Surviving Termination. Sections 4.01 and 7.07 hereof shall survive any
termination, rescission, or expiration of this Agreement with respect to or arising out of any event,
occurrence, or circumstance existing prior to the date thereof.
ARTICLE 9
Administrative Provisions
Notices and Demands. Except as otherwise expressly provided in this Agreement,
a notice, demand, or other communication under this Agreement by any party to another party
shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage
prepaid, return receipt requested, or delivered personally as follows:
(a) in the case of Developer, addressed to or delivered personally to:
SA Senior Living LLC
15102 Minnetonka Industrial Road
Minnetonka, MN 55345
Attention: Robert Wall
With a copy to:
Siegel Brill, P.A.
100 Washington Avenue South, Suite 1300
Minneapolis, Minnesota 55401
Attn: Anthony J. Gleekel
(b) in the case of the City, addressed or delivered personally to:
City of St. Anthony
3301 Silver Lake Road NE
St. Anthony, Minnesota 55418
Attention: City Manager
With a copy to:
Dorsey & Whitney LLP
Suite 1500, 50 South Sixth Street
Minneapolis, Minnesota 55402
Attention: Jay R. Lindgren
(c) in the case of the HRA, addressed or delivered personally to:
Housing and Redevelopment Authority
City of Saint Anthony
3301 Silver Lake Road NE
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St. Anthony, Minnesota 55418
Attention: Executive Director
With a copy to:
Dorsey & Whitney LLP
Suite 1500, 50 South Sixth Street
Minneapolis, Minnesota 55402
Attention: Jay R. Lindgren
The HRA, City and the Developer, by notice given hereunder, may designate different
addresses to which subsequent notices, certificates or other communications should be sent.
Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall constitute one and the same instrument.
Binding Effect. This Agreement shall inure to the benefit of and shall be binding
upon the HRA, the City and the Developer and their respective successors and assigns.
Severability. In the event any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
Amendments, Changes and Modifications. This Agreement may be amended or
any of its terms modified only by written amendment authorized and executed by the HRA, the
City, and the Developer. The Chair and Executive Director of the HRA are authorized to execute
and deliver amendments and any documents related to this Agreement on behalf of the HRA. The
Mayor and City Manager are authorized to execute and deliver amendments and any documents
related to this Agreement on behalf of the City.
Further Assurances and Corrective Instruments. The HRA, the City, and the
Developer agree that they will, from time to time, execute, acknowledge and deliver, or cause to
be executed, acknowledged and delivered, such supplements hereto and such further instruments
as may reasonably be required for correcting any inadequate or incorrect description of the
Development Property or the Project or for carrying out the expressed intention of this Agreement.
Captions. The captions or headings in this Agreement are for convenience only
and in no way define, limit or describe the scope of intent of any provisions or Sections of this
Agreement.
Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota without giving effect to the conflicts-of-laws
principles thereof.
Limited Liability. Notwithstanding anything to contrary provided in this
Agreement, it is specifically understood and agreed, such agreement being the primary
consideration for the execution of this Agreement by Developer, that (a) there should be absolutely
no personal liability on the part of any director, officer, manager, member, employee or agent of
Developer or the City or Authority with respect to any terms, covenants and conditions in this
22
Agreement; (b) Redeveloper and the City and the Authority waive all claims, demands and causes
of action against the other parties’ directors, officers, managers, members, employees and agents
in any Event of Default, by either party, as the case may be, of any of the terms, covenants and
conditions of this Agreement to be performed by either party; and (c) Developer and the City or
the Authority, as the case may be, shall look solely to the assets of the other party for the
satisfaction of each and every remedy in the Event of Default by any party, as the case may be, of
any of the terms, covenants and conditions of this Agreement such exculpation of liability to be
absolute and without any exception whatsoever.
Estoppel Certificates. Each party, respectively, agrees that at any time and from
time to time within 10 business days after receipt of a written request by the other party, to execute,
acknowledge and deliver to such party a statement in writing and in such form ach party,
respectively, agrees that at any time and from time to time within 10 business days after receipt of
a written request by the other party, to execute, acknowledge and deliver to such party a statement
in writing and in such form as will enable it to be recorded in the proper office for the recordation
of deeds and other instruments certifying: (a) that this Agreement is unmodified and in full force
and effect or, if there have been modifications, that the same are in full force and effect as modified
and identifying the modifications; (b) that no party is in default under any provisions of this
Agreement or, if there has been a default, the nature of such default; (c) that all work to be
performed, under this Agreement or any related agreement has been performed or, if not so
performed, specifying the work to be performed; and (d) as to any other matter that the requesting
party, a prospective purchaser or assignee or a prospective mortgagee or other lender shall
reasonably request. It is intended that any such statement may be relied upon by any person,
prospective mortgagee of, or assignee of any mortgage, upon such interest. Any such statement on
behalf of the City may be executed by the City Manager without City Council approval and any
such statement on behalf of the Authority may be executed by the Executive Director without
Authority Board approval.
23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
HOUSING AND REDEVELOPMENT
AUTHORITY OF T. ANTHONY
By
/ek.
Chair
And
Executive Director
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
rj
The foregoing instrument was acknowledged before m on this day of
2021, by qnA Si i �2 the Chair, and crji , the Executive Director, of
the Housing and P edevelopment Authority of St. Anthony, a body politic and corporate under the
laws of the state of Minnesota, on behalf of the Authority.
MIN WITNESS WHEREOF, I have set my hand and my official seal this33rC(day of
O/ -014 2021.
Notary Vublic
NICOLE L. MI
NOTARY PUBLIC -M11111NNES TA
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
Cit
M
1
And /
City Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
r�
Tpe foregoing instrument �w-•as acknowledged before me` on this a3 day of
O✓ra 2021, by Y�"7 S)- I Q the Mayor, and t�V�rk yw,lu/ , the
City Manager, of the City of St. Anthony, a Minnesota statutory city, on behalf of the City.
��,�WITNESS WHEREOF, I have set my hand and my official seal this 3J "day of
1= o'rm , 2021.
Notary Public
S-2
MILNOTARY 111 PUBLIC.
S-2
SA SENIOR LIVING LLC, a Minnesota limited
liability company
By:
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me on this ___ day of ___________,
2021, by _____________, the _____________ of SA Senior Living LLC, a Minnesota limited
liability company, on behalf of the company.
IN WITNESS WHEREOF, I have set my hand and my official seal this ___ day of
__________, 2021.
Notary Public
S-3
EXHIBIT A
DEVELOPMENT PROPERTY
The following described land situated in the County of Hennepin and State of Minnesota:
The West 260.00 feet of that part of the South 1/2 of the Northwest Quarter of Section 7, Township
29, Range 23, beginning at a point in the South line of said Tract 100 feet East of the Southwest
corner thereof; thence North 1079.8 feet; thence East parallel to the South line of said quarter
section 1041.74 feet; thence South to center of State Highway No. 63; thence southwesterly along
said center line of State Highway No. 63 and St. Anthony and Taylor Falls Road to intersection of
center line of said road with the South line of said quarter section; thence West along said latter
line to the point of beginning, except that part thereof embraced in the South 365 feet of the West
395 feet of the Southwest Quarter of the Northwest Quarter of said Section 7 and except the
easterly 100 feet thereof.
And,
That part of the Northwest Quarter of Section 7, Township 29, Range 23, described as commencing
at a point on the South line of said Northwest Quarter distant 100 feet Easterly from the Southwest
corner of said Northwest Quarter; thence Northerly parallel with the West line of said Northwest
Quarter to the South line of MURRAY HEIGHTS ADDITION TO MINNEAPOLIS, being the
actual point of beginning; thence Southerly along said parallel line to a point distant 1079.8 feet
Northerly from said South line of the Northwest Quarter; thence on an assumed bearing of North
89 degrees 24 minutes 53 seconds East, parallel with the South line of said Northwest Quarter a
distance of 947.24 feet; thence North 01 degree 00 minutes 45 seconds East to said South line of
MURRAY HEIGHTS ADDITION TO MINNEAPOLIS; thence Westerly along the last described
line to the point of beginning.
A-1
EXHIBIT B
COVENANTS AND RESTRICTIONS
During the term of that certain Redevelopment Agreement between the Housing and
Redevelopment Authority of St. Anthony, and SA Senior Living LLC, dated \[Month\] 1, 2021 and
recorded in the Office of the Ramsey County Registrar as Document No. \[__________\] on
\[____________\], 2021, the Property shall be subject to the following covenants and restrictions:
1. The Property shall not be exempt from real estate taxes notwithstanding the
ownership or use of the land.
2. The Property shall not be sold, transferred, conveyed or leased to any of the
following parties:
(a) An institution of purely public charity;
(b) A church or ancillary tax-exempt housing;
(c) A public hospital;
(d) A public school district;
(e) An organization exempt from federal income taxes pursuant to
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, if as
a result of such sale, transfer, conveyance or lease the Property would
become exempt from real estate taxes; or
(f) A Minnesota cooperative association organized under Minnesota Statutes,
Section 308.05 and 308.18 for the purpose of complying with the provisions
of Minnesota Statutes, Section 273.133, subdivision 3, or any other party
that would cause the Property to be valued and assessed for real estate tax
purposes at a lower percentage of its market value than the Property is then
being valued and assessed for real estate tax purposes or would result in the
Property becoming exempt from real estate taxes.
3. The Property shall not be used for any of the following purposes:
(a) The operation of a public charity;
(b) A church or house of worship;
(c) The operation of a public hospital;
(d) The operation of a public schoolhouse, academy, college, university or
seminary of learning; or
B-1
(e) Any other use which would cause the Property to be valued and assessed
for real estate tax purposes at a lower percentage of its market value than
the Property is then being valued and assessed for real estate tax purposes
or would result in the Property becoming exempt from real estate taxes.
4. The Property shall be devoted to uses consistent with a “redevelopment district”
under Minnesota Statutes, Sections 469.174 through 469.1794.
5. The Property owner shall:
(a) not discriminate on the basis of color, creed, national origin, or sex in the
sale, lease, use or occupancy of the Property, the Project or any part thereof;
(b) develop the Development Property in an orderly manner consistent with the
City’s zoning ordinances and comprehensive plan.
6. The covenants and restrictions herein contained shall run with the title to the
Property and shall be binding upon all present and future owners and occupants of the Property;
provided, however, that the covenants and restrictions herein contained shall inure only to the
benefit of the City and may be released or waived in whole or in part at any time, and from time
to time, by the sole act of the City, and variances may be granted to the covenants and restrictions
herein contained by the sole act of the City. These covenants and restrictions shall be enforceable
only by the City, and only the City shall have the right to sue for and obtain an injunction,
prohibitive or mandatory, to prevent the breach of the covenants and restrictions herein contained,
or to enforce the performance or observance thereof.
7. The covenants and restrictions herein contained shall remain in effect until the later
of (i) February 1, 2032, or (ii) the payment in full of principal of, and interest on, the limited
revenue tax increment note issued in accordance with the Agreement, and thereafter shall be null
and void.
B-2
EXHIBIT C
PROJECT DESCRIPTION; QUALIFIED COSTS
Project Description
The Project involves the construction of a 135-unit senior care facility with independent
living, assisted living and memory care.
Affordability Requirements:
At least 7-units (or, 5% of the total units) will be affordable to households at or below 50%
of the Area Median Income. The monthly rental cost for an affordable dwelling will include rent
and utility costs for the metropolitan area that includes St. Anthony adjusted for bedroom size and
calculated annually by the Department of Housing and Urban Development and posted by
Minnesota Housing for establishing rent limits for the Housing Tax Credit Program. Such
affordability requirements shall be in effect for a term of fifteen (15) years.
Qualified Costs
The estimated public costs of the TIF District are listed below. Such costs (“Qualified
Costs”) are eligible for reimbursement from tax increments of the TIF District. The categories
below identify the categories of expenses that the parties agree may be reimbursed through tax
increment financing. The amounts assigned to each category are estimates only and not
independent limitations of the actual amount incurred within each category or of the total amount
of Developer’s Qualified Costs.
Demolition $ 63,610
Site Utilities 2,155,193
Roads & Walks (City Extension) 61,709
Soil Remediation 137,740
$2,418,252*
Total
* Developer’s Qualified Cost. The total principal amount of any and all tax increment notes issued
to reimburse the Developer for Qualified Costs of the Project will not exceed $2,350,000.
C-1
EXHIBIT D
CERTIFICATE OF COMPLETION
WHEREAS, SA SENIOR LIVING LLC, a Minnesota limited liability company (“the
Developer”), is the owner and the Developer of the property in the County of Ramsey and State
of Minnesota described on Exhibit A hereto and made a part hereof (the “Development Property”);
and
WHEREAS, the Development Property is subject to the provisions of a certain
Redevelopment Agreement (the “Agreement”) in the Redevelopment Project Area No. 3 and
Lowry Grove Tax Increment Financing District, dated as of \[Month\] 1, 2021, between the
Developer, Housing and Redevelopment Authority of St. Anthony, and the City of St. Anthony,
Minnesota; and
WHEREAS, the Developer has fully and duly performed all of the covenants and
conditions of Developer under the Agreement with respect to the completion of the Project (as
defined in the Agreement);
NOW, THEREFORE, it is hereby certified that all requirements of the Developer under
the Agreement with respect to the completion of the Project have been completed and duly and
fully performed, and this instrument is to be conclusive evidence of the satisfactory termination of
the covenants and conditions of the Agreement as they relate to the completion of the Project. All
other covenants and conditions of the Agreement shall remain in effect and are not terminated
hereby.
Dated this ____ day of ____________, 20__.
City of St. Anthony, Minnesota
By
Mayor
And
City Manager
D-1
Exhibit A
Development Property
The following described land situated in the County of Hennepin and State of Minnesota:
The West 260.00 feet of that part of the South 1/2 of the Northwest Quarter of Section 7, Township
29, Range 23, beginning at a point in the South line of said Tract 100 feet East of the Southwest
corner thereof; thence North 1079.8 feet; thence East parallel to the South line of said quarter
section 1041.74 feet; thence South to center of State Highway No. 63; thence southwesterly along
said center line of State Highway No. 63 and St. Anthony and Taylor Falls Road to intersection of
center line of said road with the South line of said quarter section; thence West along said latter
line to the point of beginning, except that part thereof embraced in the South 365 feet of the West
395 feet of the Southwest Quarter of the Northwest Quarter of said Section 7 and except the
easterly 100 feet thereof.
And,
That part of the Northwest Quarter of Section 7, Township 29, Range 23, described as
commencing at a point on the South line of said Northwest Quarter distant 100 feet Easterly from
the Southwest corner of said Northwest Quarter; thence Northerly parallel with the West line of
said Northwest Quarter to the South line of MURRAY HEIGHTS ADDITION TO
MINNEAPOLIS, being the actual point of beginning; thence Southerly along said parallel line to
a point distant 1079.8 feet Northerly from said South line of the Northwest Quarter; thence on an
assumed bearing of North 89 degrees 24 minutes 53 seconds East, parallel with the South line of
said Northwest Quarter a distance of 947.24 feet; thence North 01 degree 00 minutes 45 seconds
East to said South line of MURRAY HEIGHTS ADDITION TO MINNEAPOLIS; thence
Westerly along the last described line to the point of beginning.
D-2
EXHIBIT E
FORM OF ASSESSMENT AGREEMENT
THIS AGREEMENT is dated as of \[Month\] 1, 2021, and is between the HOUSING AND
REDEVELOPMENT AUTHORITY OF ST. ANTHONY, MINNESOTA, a public body corporate
and politic organized and existing under the laws of the State of Minnesota (the “HRA”), a
municipal corporation and political subdivision of the State of Minnesota (the “City”) and SA
SENIOR LIVING LLC, a Minnesota limited liability company (the “Developer”).
IN CONSIDERATION OF the mutual covenants and benefits herein described, the
City and the Developer recite and agree as follows:
Section 1. Recitals.
1.01. Development District; Development Program. The City of St. Anthony (the
“City”) and the Housing and Redevelopment Authority of St. Anthony (the “HRA”) have
heretofore undertaken certain development activities for the purpose of redeveloping blighted
areas, improving the local tax base, and improving the general economy of the City and the State
of Minnesota, which is a “project” as defined in Minnesota Statutes, Section 469.174, subdivision
8, known as Redevelopment Project Area No. 3 (the “Project Area”) pursuant to a Project Plan for
Redevelopment Area No. 3 (the “Project Plan”).
1.02. Tax Increment Financing District; Project. Pursuant to the Minnesota Tax
Increment Financing Act, Minnesota Statutes, Sections 469.174 to 469.1794, as amended (the “TIF
Act”), the City and the HRA have approved a tax increment financing plan (the “Financing Plan”),
which is the proposed method for financing the development activities currently proposed to be
undertaken pursuant to the Project Plan and established a portion of the Project Area as a tax
increment financing district (“Tax Increment District”). The Financing Plan proposes to finance
the cost of certain public improvements related to the construction of a 135-unit senior care facility
with independent living, assisted living and memory care (the “Project”).
1.03. Implementation. The City and the HRA have each authorized and directed
their respective officers to take all actions necessary to implement and carry out the Project Plan
and the Financing Plan. The Project Plan and the Financing Plan propose that the HRA finance
certain costs of or related to the Project, payable from tax increment (as defined in the TIF Act)
derived from the District (“Tax Increment”).
1.04. Development Agreement. The City, the HRA, and the Developer have
entered into a Redevelopment Agreement (Development 65 Project), dated as of \[Month\] 1, 2021
(the “Redevelopment Agreement”), which provides that the Developer, or its permitted assignee,
will improve the real property described in Exhibit A hereto (the “Land”) by the construction of
the portion of the Project located thereon. The Redevelopment Agreement provides that upon the
execution and delivery of the Redevelopment Agreement, the Authority and Developer are to enter
into this Assessment Agreement.
E-1
Section 2. Minimum Market Value.
2.01. Agreed Upon Minimum. The Developer agrees that the minimum market
value of the Land and the portion of the Project located thereon for ad valorem tax purposes, (i)
for the assessment made as of January 2, 2022, shall be not less than $10,800,000, and (ii) for the
assessment made as of January 2, 2023, shall be not less than $21,600,000, and shall not be reduced
by any action taken by the Developer (other than a deed in lieu of, or under threat of, condemnation
by the City, Ramsey County or other condemning authority), to less than the said amount, and that
during the term of this Assessment Agreement no reduction of the market value therefor below
said minimum market value shall be sought by the Developer or granted by any public official or
court except in accordance with Minnesota Statutes, Section 469.177, subdivision 8. This
minimum market value shall apply only to the Land, the portion of the Project located thereon and
any other facilities situated on the Land. In the event of involuntary conversion of the Land and
the portion of the Project located thereon for any reason (other than condemnation by a public
entity), the minimum market value shall not be reduced to an amount less than said minimum
market value.
The Developer acknowledges and agrees that the Land and the portion of the Project
located thereon are subject to ad valorem property taxation and that such property taxes constitute
taxes on “real property” (as provided in Section 469.174 of the TIF Act) and, to the extent
reflecting net tax capacity rates of taxing jurisdictions levied against the captured net tax capacity
of the District, tax increment.
2.02. Higher Market Value. Nothing in this Assessment Agreement shall limit the
discretion of the assessor of the City or any other public official or body having the duty to
determine the market value of the Land, the portion of the Project located thereon and other
facilities on the Land for ad valorem tax purposes, to assign to the Land, the portion of the Project
located thereon or to any other improvements constructed on the Land, on a nondiscriminatory
basis and treated fairly and equally with all other property so classified in the respective counties,
a market value in excess of the minimum market value specified in Section 2.01. The Developer
shall have the normal remedies available under the law to contest any estimated assessor’s
estimated value in excess of said minimum market values, but only to the extent of the excess.
2.03. Substantial Completion. For purposes of this Assessment Agreement and the
determination of the market value of the Land and the portion of the Project located thereon for ad
valorem tax purposes, the Developer agrees that the portion of the Project located thereon shall be
deemed to be completed in accordance with the Development Agreement as of July 31, 2023 (the
required date of completion), whether in fact completed or not.
Section 3. Filing and Certification.
3.01. Assessor Certification. The HRA shall present this Assessment Agreement
to the assessor of the City and request such assessor to execute the certification attached hereto as
Exhibit C. The Developer shall provide to the assessor all information relating to the Land and
the portion of the Project located thereon requested by the assessor for the purposes of discharging
the assessor’s duties with respect to the certification.
E-2
3.02. Filing. Prior to the recording of any mortgage, security agreement or other
instrument creating a lien on the Land, the Master Developer shall cause this Assessment
Agreement and a copy of Minnesota Statutes, Section 469.177, subdivision 8, attached hereto as
Exhibit B, to be recorded in the office of the County Recorder or Registrar of Titles of Ramsey
County, and shall pay all costs of such recording.
Section 4. Relation to Development Agreement. The covenants and agreements
made by the Developer in this Assessment Agreement are separate from and in addition to the
covenants and agreements made by the Developer in the Development Agreement and nothing
contained herein shall in any way alter, diminish or supersede the duties and obligations of the
Developer under the Development Agreement.
Section 5. Miscellaneous Provisions.
5.01. Binding Effect. This Assessment Agreement shall inure to the benefit of and
shall be binding upon the HRA and the Developer and their respective successors and assigns, and
upon all subsequent owners of the Land and the portion of the Project located thereon.
5.02. Severability. In the event any provision of this Assessment Agreement shall
be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
5.03. Amendments, Changes and Modifications. Except as provided in
Section 5.04, this Assessment Agreement may be amended or any of its terms modified only by
written amendment authorized and executed by the HRA and the Developer and otherwise in
compliance with Section 469.177, subdivision 8, of the Act.
5.04. Further Assurances and Corrective Instruments. The HRA and the Developer
agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed,
acknowledged or delivered, such supplements hereto and such further instruments as may
reasonably be required for correcting any inadequate or incorrect description of the Land or the
portion of the Project located thereon, or for carrying out the expressed intention of this
Assessment Agreement.
5.05. Execution Counterparts. This Assessment Agreement may be
simultaneously executed in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
5.06. Applicable Law. This Assessment Agreement shall be governed by and
construed in accordance with the internal laws of the State of Minnesota.
5.07. Captions. The captions or headings in this Assessment Agreement are for
convenience only and in no way define, limit or describe the scope or intent of any provisions or
Sections of this Assessment Agreement.
5.08. Effective Date. This Assessment Agreement shall be effective as of
\[__________\], 2021.
E-2
5.09. Termination Date. This Assessment Agreement shall terminate upon the
termination of the TIF Note.
5.10. Definitions. Terms used with initial capital letters but not defined herein
shall have the meanings given such terms in the Development Agreement, unless the context
hereof clearly requires otherwise.
E-2
IN WITNESS WHEREOF, the HRA has caused this Assessment Agreement to be
executed in its name by its duly authorized officers and the Developer has caused this Assessment
Agreement to be executed in its corporate name.
HOUSING AND REDEVELOPMENT OF ST.
ANTHONY, MINNESOTA
By
Its Chair
By
Its Executive Director
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me this day of
_______________, 20__, by ____________, Chair, and ____________, Executive Director, of
the Housing and Redevelopment Authority of St. Anthony, Minnesota, a public body corporate
and politic organized and existing under the laws of the State of Minnesota, on behalf of the public
body.
Notary Public
E-2
SA SENIOR LIVING LLC
By
Its
STATE OF MINNESOTA )
) SS.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this _____ day of __________,
20____, by __________________, the _______________, on behalf of the _______________.
Notary Public
E-2
EXHIBIT A
DESCRIPTION OF LAND
The following described land situated in the County of Hennepin and State of Minnesota:
The West 260.00 feet of that part of the South 1/2 of the Northwest Quarter of Section 7, Township
29, Range 23, beginning at a point in the South line of said Tract 100 feet East of the Southwest
corner thereof; thence North 1079.8 feet; thence East parallel to the South line of said quarter
section 1041.74 feet; thence South to center of State Highway No. 63; thence southwesterly along
said center line of State Highway No. 63 and St. Anthony and Taylor Falls Road to intersection of
center line of said road with the South line of said quarter section; thence West along said latter
line to the point of beginning, except that part thereof embraced in the South 365 feet of the West
395 feet of the Southwest Quarter of the Northwest Quarter of said Section 7 and except the
easterly 100 feet thereof.
And,
That part of the Northwest Quarter of Section 7, Township 29, Range 23, described as
commencing at a point on the South line of said Northwest Quarter distant 100 feet Easterly from
the Southwest corner of said Northwest Quarter; thence Northerly parallel with the West line of
said Northwest Quarter to the South line of MURRAY HEIGHTS ADDITION TO
MINNEAPOLIS, being the actual point of beginning; thence Southerly along said parallel line to
a point distant 1079.8 feet Northerly from said South line of the Northwest Quarter; thence on an
assumed bearing of North 89 degrees 24 minutes 53 seconds East, parallel with the South line of
said Northwest Quarter a distance of 947.24 feet; thence North 01 degree 00 minutes 45 seconds
East to said South line of MURRAY HEIGHTS ADDITION TO MINNEAPOLIS; thence
Westerly along the last described line to the point of beginning.
E-2
EXHIBIT B
COPY OF MINNESOTA STATUTES, SECTION 469.177, SUBDIVISION 8
Assessment agreements. An authority may enter into a written assessment agreement with any
person establishing a minimum market value of land, existing improvements, or improvements to
be constructed in a district, if the property is owned or will be owned by the person. The minimum
market value established by an assessment agreement may be fixed, or increase or decrease in later
years from the initial minimum market value. If an agreement is fully executed before July 1 of an
assessment year, the market value as provided under the agreement must be used by the county or
local assessor as the taxable market value of the property for that assessment. Agreements executed
on or after July 1 of an assessment year become effective for assessment purposes in the following
assessment year. An assessment agreement terminates on the earliest of the date on which
conditions in the assessment agreement for termination are satisfied, the termination date specified
in the agreement, or the date when tax increment is no longer paid to the authority under section
469.176, subdivision 1. The assessment agreement shall be presented to the county assessor, or
city assessor having the powers of the county assessor, of the jurisdiction in which the tax
increment financing district and the property that is the subject of the agreement is located. The
assessor shall review the plans and specifications for the improvements to be constructed, review
the market value previously assigned to the land upon which the improvements are to be
constructed and, so long as the minimum market value contained in the assessment agreement
appears, in the judgment of the assessor, to be a reasonable estimate, shall execute the following
certification upon the agreement:
The undersigned assessor, being legally responsible for the assessment of the above
described property, certifies that the market values assigned to the land and
improvements are reasonable
The assessment agreement shall be filed for record and recorded in the office of the county recorder
or the registrar of titles of each county where the real estate or any part thereof is situated. After
the agreement becomes effective for assessment purposes, the assessor shall value the property
under section 273.11, except that the market value assigned shall not be less than the minimum
market value established by the assessment agreement. The assessor may assign a market value to
the property in excess of the minimum market value established by the assessment agreement. The
owner of the property may seek, through the exercise of administrative and legal remedies, a
reduction in market value for property tax purposes, but no city assessor, county assessor, county
auditor, board of review, board of equalization, commissioner of revenue, or court of this state
shall grant a reduction of the market value below the minimum market value established by the
assessment agreement during the term of the agreement filed of 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 an assessment agreement constitutes notice of the
agreement to anyone who acquires any interest in the land or improvements that is subject to the
assessment agreement, and the agreement is binding upon them.
An assessment agreement may be modified or terminated by mutual consent of the current parties
to the agreement. Modification or termination of an assessment agreement must be approved by
E-2
the governing body of the municipality. If the estimated market value for the property for the most
recently available assessment is less than the minimum market value established by the assessment
agreement for that or any later year and if bond counsel does not conclude that termination of the
agreement is necessary to preserve the tax exempt status of outstanding bonds or refunding bonds
to be issued, the modification or termination of the assessment agreement also must be approved
by the governing bodies of the county and the school district. A document modifying or
terminating an agreement, including records of the municipality, county, and school district
approval, must be filed for record. The assessor's review and certification is not required if the
document terminates an agreement. A change to an agreement not fully executed before July 1 of
an assessment year is not effective for assessment purposes for that assessment year. If an
assessment agreement has been modified or prematurely terminated, a person may seek a reduction
in market value or tax through the exercise of any administrative or legal remedy. The remedy may
not provide for reduction of the market value below the minimum provided under a modified
assessment agreement that remains in effect. In no event may a reduction be sought for a year other
than the current taxes payable year.
E-2
EXHIBIT C
ASSESSOR’S CERTIFICATE
The undersigned, being the duly qualified and acting assessor of the City of St.
Anthony, Minnesota, hereby certifies that.
1. I am the assessor responsible for the assessment of the Land described in the
foregoing Exhibit A;
2. I have read the foregoing Assessment Agreement dated as of \[Month\] 1, 2021;
3. I have received and read a duplicate original of the Redevelopment Agreement
referred to in the Assessment Agreement;
4. I have received and reviewed the architectural and engineering plans and
specifications for the portion of the Project agreed to be constructed on the Land pursuant to the
Redevelopment Agreement;
5. I have received and reviewed an estimate prepared by the Developer of the cost
of the Land and the portion of the Project to be constructed thereon;
6. I have reviewed the market value previously assigned to the Land on which the
applicable portion of the Project is to be constructed, and the minimum market value to be assigned
to the Land and the portion of the Project located thereon by the Assessment Agreement is a
reasonable estimate; and
7. I hereby certify that the market value assigned to the Land and the portion of the
Project located thereon described on the foregoing Exhibit A by the Assessment Agreement is
reasonable and the market value assigned to the Land and the portion of the Project located thereon,
for the assessment January 2, 20__, shall be not less than $___________, and for the assessment
made as of January 2, 20__, and continuing throughout the term of this Assessment Agreement,
shall be not less than $_______________.
Dated: ____________, 20__.
City Assessor, City of St. Anthony, Minnesota
E-2
EXHIBIT F
FORM OF LIMITED TAX INCREMENT REVENUE NOTE
No. R-_____ $\[__________\]
UNITED STATES OF AMERICA
STATE OF MINNESOTA
CITY OF ST. ANTHONY
HOUSING AND REDEVELOPMENT AUTHORITY OF
THE CITY OF ST. ANTHONY
LIMITED REVENUE TAXABLE TAX INCREMENT NOTE
(DEVELOPMENT 65, LLC PROJECT)
PRINCIPAL AMOUNT: $ INTEREST RATE: \[__\]%
The Housing and Redevelopment Authority of St. Anthony (the “HRA”) for value
received, promises to pay, but solely from the source, to the extent and in the manner hereinafter
provided, to \[Developer\], or its registered assigns (the “Owner”), the principal sum of
_______________ ($_________), in semi-annual installments payable on August 1, 2023, and on
each February 1 and August 1 thereafter up to and including February 1, 2032 (each being a
“Scheduled Payment Date”), together with interest on the outstanding and unpaid principal balance
of this Note at the rate of \[__\] (\[__\]%) per annum. Installment payments shall be applied first to
interest and then to a reduction of outstanding principal. Interest on the outstanding balance of this
Note shall accrue from the date hereof as simple, non-compounding interest. Each payment on this
Note is payable in any coin or currency of the United States of America which on the date of such
payment is legal tender for public and private debts and shall be made by check or draft made
payable to the Owner and mailed to the Owner at the postal address within the United States
designated from time to time by the Owner.
This Note is subject to prepayment on any Scheduled Payment Date at the option of the
HRA, in whole or in part, upon payment to the Owner of the principal amount of the Note to be
prepaid, without premium or penalty.
This Note is a special and limited obligation and not a general obligation of the HRA,
which has been issued by the HRA in aid of financing a project pursuant to and in full conformity
with the Constitution and laws of the State of Minnesota, including M.S., Sections 469.174 through
469.1794. This Limited Tax Increment Revenue Note (Development 65, LLC Project) (or “Note”)
is issued pursuant to the provisions of that certain Redevelopment Agreement, dated as of \[Month\]
1, 2021, as the same may be amended from time to time (the “Redevelopment Agreement”), by
and between the HRA, the City of St. Anthony, Minnesota (the “City”) and SA Senior Living LLC
(the “Developer”).
THIS NOTE IS NOT PAYABLE OUT OF ANY FUNDS OR PROPERTIES OTHER
THAN PLEDGED TAX INCREMENT, AS DEFINED BELOW.
F-1
The Note Payment Amounts due hereon shall be payable solely from a portion of the tax
increments, less the HRA’s administrative fee of ten percent (10%), from the Development
Property within the HRA’s Lowry Grove Tax Increment Financing District (the “Tax Increment
District”) within its Redevelopment Project Area No. 3, which are paid to the HRA and which the
HRA is entitled to retain pursuant to the provisions of M.S., Sections 469.174 through 469.1794,
as the same may be amended or supplemented from time to time (the “Available Tax Increment”).
The HRA makes no representation or covenant, express or implied, that the Available Tax
Increments will be sufficient to pay, in whole or in part, the amounts which are or may become
due and payable hereunder.
The HRA shall pay to the Owner on each Scheduled Payment Date all Available Tax
Increment on that date to the extent necessary to pay principal and interest then due and any past
due installment. To the extent that the HRA is unable to pay the total principal and interest due on
this Note at or prior to the February 1, 2032 maturity date hereof as a result of its having received
as of such date insufficient Available Tax Increment, such failure shall not constitute a default
under this Note and the HRA shall have no further obligation hereon.
This Note shall not be payable from or constitute a charge upon any funds of the HRA, and
the HRA shall not be subject to any liability hereon or be deemed to have obligated itself to pay
hereon from any funds except the Available Tax Increment, and then only to the extent and in the
manner herein specified.
The Owner shall never have or be deemed to have the right to compel any exercise of any
taxing power of the HRA or of any other public body, and neither the HRA nor any council
member, officer, employee or agent of the HRA, nor any person executing or registering this Note
shall be personally liable hereon by reason of the issuance or registration hereof or otherwise. The
Owner may assign its rights hereunder, with notice thereof provided to HRA, in accordance with
the associated Redevelopment Agreement.
IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions, and things required
by the Constitution and laws of the State of Minnesota to be done, to have happened, and to be
performed precedent to and in the issuance of this Note have been done, have happened, and have
been performed in regular and due form, time, and manner as required by law; and that this Note,
together with all other indebtedness of the HRA outstanding on the date hereof and on the date of
its actual issuance and delivery, does not cause the indebtedness of the HRA to exceed any
constitutional or statutory limitation thereon.
IN WITNESS WHEREOF, the Housing and Redevelopment Authority of St. Anthony
has caused this Note to be executed by the manual signatures of the Chair and the Executive
Director and has caused this Note to be dated as of _________________, 20__.
Chair Executive Director
F-2
EXHIBIT G
FORM OF DECLARATION OF COVENANTS AND RESTRICTIONS
(Affordable Housing)
THIS DECLARATION OF COVENANTS AND RESTRICTIONS (this “Declaration”) is made
as of the \[_____\] day of \[_______\], 2021, by SA SENIOR LIVING LLC, a Minnesota limited liability
company (“Declarant”).
Recitals
A. Declarant is the owner of certain real property situated in the city of St. Anthony
(the “City”), county of Hennepin and Ramsey, state of Minnesota, legally described in the
attached Exhibit A (the “Property”).
B. Declarant and the Housing and Redevelopment Authority of St. Anthony,
Minnesota, a public body corporate and politic organized and existing under the laws of the
State of Minnesota (the “Authority”) are parties to that certain Redevelopment Agreement
dated \[_______\] \[__\], 2021 (as may be amended from time to time, the “Redevelopment
Agreement”).
C. The Redevelopment Agreement provides for the redevelopment of the Property
by Declarant with the cooperation and assistance of the Authority and provides for the
expenditure of certain public funds to assist in such redevelopment of the Property and
construction thereon of a 135-unit senior care facility with independent living, assisted living
and memory care (the “Project”).
D. Pursuant to the Redevelopment Agreement, Declarant has agreed to impose
certain restrictive covenants upon the Property to ensure that at least seven (7) units or, five
percent (5%) of the total units, within the Project will be reserved for households who have a
combined gross annual income which does not exceed 50% of the Area Median Income
(“AMI”) (“Affordable Units”).
E. Declarant, under this Declaration, intends, declares, and covenants that the
restrictive covenants set forth herein governing the use, occupancy, and transfer of the Project
shall be and are covenants running with the Property for the Term stated herein and binding
upon all subsequent owners of the Property for such Term, and are not merely personal
covenants of Declarant.
F. Capitalized terms in this Declaration have the meaning provided in the
Redevelopment Agreement unless otherwise defined herein.
NOW, THEREFORE, Declarant makes the following Declaration, hereby specifying that said
Declaration shall constitute covenants to run with the land and shall be binding on all parties in interest and
their respective successors and assigns:
1. Use Restriction. The Property shall not be used for any purpose other than a senior care
facility with independent living, assisted living and memory care and related activities meeting the
requirements set forth in Section 2 hereof, without the prior written approval of the City and the Authority
during the period commencing on the date hereof (“Commencement Date”) and ending on the later to occur
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of the (a) 15-year anniversary of the Commencement Date and (b) expiration of the last of the leases with
a Qualifying Tenant for an Affordable Unit (the “Term”). Declarant’s obligation to operate the Project
subject to this Declaration for the Term is independent of the existence and continuance of any public
assistance contemplated or given by the Authority or the City to Declarant under the Redevelopment
Agreement, or otherwise (“Public Assistance”). The provisions of this Declaration are intended to survive
the termination or extinguishment of any Public Assistance, any mortgage securing the same, and any other
security instruments placed of record in connection with the Public Assistance and to survive the
termination of any subsequent financing or security instruments placed of record by other lenders.
2. Occupancy Requirements and Restrictions.
(a) Affordable Units. At least at least seven (7) units or, five percent (5%) of the total
units, within the Project will be studio or one-bedroom independent or assisted
living units reserved for households who have a combined gross annual income
which does not exceed 50% of AMI.
For purposes of this Declaration, “AMI” means the Area Median Income for the
Minneapolis-Saint Paul-Bloomington Metropolitan Statistical Area (including adjustments for
household size), as determined by the U.S. Department of Housing and Urban Development
(“HUD”).
(b) Qualifying Tenants. Each Affordable Unit shall be leased to and occupied (or held
vacant and available for occupancy) for the duration of the Term only by a
household who, at initial occupancy, has a combined gross annual income which
does not exceed the AMI threshold for the Affordable Unit (each a “Qualifying
Tenant”). Each subsequent tenant of an Affordable Unit must be a Qualifying
Tenant.
(c) Rental Rates. The monthly rental cost for each Affordable Unit will include rent
and utility costs for the metropolitan area that includes the City adjusted for
bedroom size and calculated annually by the Department of Housing and Urban
Development and posted by Minnesota Housing for establishing rent limits for the
Housing Tax Credit Program. During the Qualified Project Period, the form of
lease to be utilized by Developer in renting Affordable Units will provide that
rental rates charged to any tenant of an Affordable Unit cannot be increased more
than once in any 12-month period.
(d) Certification of Tenant Eligibility. No tenant household shall be approved by
Declarant for initial occupancy of an Affordable Unit unless and until Declarant
has determined (through verification of income, assets, expenses, and deductions)
whether such tenant household is a Qualifying Tenant. Each person who is
intended to be a Qualifying Tenant will be required at the commencement of the
initial lease of an Affordable Unit to sign and deliver to Declarant a “Certification
of Tenant Eligibility” substantially in the form attached as Exhibit B, or in any
other form as may be approved in writing by the Executive Director of the
Authority or the City Manager of the City (the “Eligibility Certification”), in which
the prospective tenant certifies as to qualifying as a Qualifying Tenant. Eligibility
Certifications may be obtained no more than 120 days before a Qualifying Tenant
occupies an Affordable Unit. In addition, the person will be required to provide
whatever other information, documents, or certifications are deemed necessary by
the Authority or the City to substantiate the Eligibility Certification. Eligibility
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Certifications will be maintained on file by Declarant with respect to each
Qualifying Tenant who resides or resided in an Affordable Unit for a period of 10
years following the end of the Term, unless, following written request from the
Declarant identifying Eligibility Certifications that Developer wishes to discard,
the HRA consents to the Declarant’s request to discard said Eligibility
Certification. Declarant must re-examine and verify the income of each tenant
household living in an Affordable Unit annually unless, during such year, no
Affordable Unit is occupied by a new tenant household whose income exceeds the
applicable income limit for Qualifying Tenants. In addition, no re-certification
shall be required if a Qualifying Tenant moves to a different Affordable Unit.
(e) Leases. The Affordable Units shall be rented pursuant to a written lease, and the
term of each such lease shall be least 12 months, except that during the final year
of the Term, new leases for the Affordable Units may be for a term of no less than
six months, and such newly leased Affordable Units shall be subject to the terms
and conditions of this Declaration until the expiration of such new leases. In
addition, the form of lease to be utilized by Declarant in renting any Affordable
Unit to any person who is intended to be a Qualifying Tenant shall:
(i) not require a security deposit in excess of the amount of one month
of rent in connection with any Affordable Unit;
(ii) provide that rental rates charged to any Qualifying Tenant of an
Affordable Unit cannot be increased more than once in any 12-month
period.
(iii) provide for termination of the lease and consent by the person to
eviction for failure to qualify as a Qualifying Tenant as a result of any
material misrepresentation made by the person with respect to the
Eligibility Certification;
(iv) include a clause wherein each individual tenant or tenant certifies
the accuracy of the statements made in its application and Eligibility
Certification; and
(v) include a clause wherein each individual tenant or tenant certifies
that the family income at the time the lease is executed will be deemed
substantial and material obligation of the tenant’s tenancy; that the tenant
will comply promptly with all requests for income and other information
relevant to determining low or moderate income status from Declarant, the
Authority, or the City, and that the tenant’s failure or refusal to comply
with a request for information with respect thereto will be deemed a
violation of a substantial obligation of the tenant’s tenancy of its
Affordable Unit.
3. Enforcement of Covenants and Restrictions.
(a) Annual Certification. Declarant shall prepare and submit to the Authority and the
City, annually for approval on the basis of compliance with this Declaration, a
certificate substantially in the form of the attached Exhibit C, executed by
Declarant, (i) identifying the tenancies and the dates of occupancy (or vacancy) for
3
all Qualifying Tenants, including the percentage of the dwelling units of the Project
which were occupied by Qualifying Tenants (or held vacant and available for
occupancy by Qualifying Tenants) at all times during the year preceding the date
of the certificate; (ii) describing all transfers or other changes in ownership of the
Project or any interest therein; and (iii) stating that all Affordable Units were rented
or available for rental on a continuous basis during the year to Qualifying Tenants
and that Declarant was not otherwise in default under this Declaration during the
year. The initial deadline for submission of such certification is three months
following the Commencement Date and thereafter an annual deadline for
submission of January 31.
(b) Books and Records. Declarant shall permit, during normal business hours and upon
reasonable notice, any duly authorized representative of the Authority or City, to
inspect any books and records of Declarant regarding the Project with respect to
the incomes of tenant households of Affordable Units and the rents charged for
Affordable Units to ensure compliance with the requirements of this Declaration.
At the City’s or Authority’s request, Declarant will submit any other information,
documents or certifications that Declarant, in its reasonable discretion, deems
necessary to substantiate Declarant’s compliance with the requirements of this
Declaration.
(c) Delegation; Third-Party Monitoring. Each of the Authority and the City may, in
their reasonable discretion, delegate their obligations hereunder and
responsibilities for monitoring and enforcement of this Declaration to a separate
subdivision of the City and/or one or more designated contractors, subcontractors,
or agents. Declarant shall, upon annual invoicing, reimburse the Authority and the
City for third-party expenses related to monitoring of Declarant’s compliance with
this Declaration, including any additional costs necessitated by re-inspections for
noncompliance with this Declaration.
(d) Reserved.
(e) Notice of Non-Compliance. Declarant shall immediately notify the Authority and
the City if at any time during the term of this Declaration the dwelling units in the
Project are not occupied or available for occupancy as required by the terms of this
Declaration.
4. Additional Covenants, Representations, and Warranties of Declarant.
(a) Legal Compliance. Declarant shall maintain the Affordable Units and the Project
in compliance with all requirements of the Redevelopment Agreement, any
requirements of any lender whose loan is secured by a mortgage to which
Declarant is a party or by which it or the Project is bound, and applicable
ordinances, building and use restrictions, code-required building permits, and any
requirements with respect to licenses, permits, and agreements necessary for the
lawful use and operation of the Project.
(b) No Violation. The execution and performance of this Declaration by Declarant (i)
will not violate or, as applicable, have not violated any provision of law, rule or
regulation, or any order of any court or other agency or governmental body, and
(ii) will not violate or, as applicable, have not violated any provision of any
4
indenture, agreement, mortgage, mortgage note, or other instrument to which
Declarant is a party or by which it or the Project is bound, and (iii) will not result
in the creation or imposition of any prohibited encumbrance of any nature.
(c) Section 8 Housing. Declarant shall accept tenants who are recipients of federal
certificates for rent subsidies pursuant to the existing program under Section 8 of
the United States Housing Act of 1937, as amended, codified as 42 U.S.C. Sections
1401 et seq., or its successor. Declarant shall not adopt any policies specifically
excluding rental to tenants holding Section 8 certificate/voucher holders solely
because of the status of the prospective tenant as such a holder.
(d) Underserved Populations. Declarant shall affirmatively market the Affordable
Units to one or more traditionally underserved populations as affordable at the
rates required hereunder.
(e) Consents and Subordination. Declarant shall obtain the consent to this Declaration
of any prior recorded lien-holder for the Property and shall cause such liens to be
subordinated to this Declaration. Declarant has not and will not execute any other
agreement with provisions contradictory to, or in opposition to, the provisions
hereof and that, in any event, the requirements of this Declaration are paramount
and controlling as to the rights and obligations set forth herein and supersede any
other document's provisions in conflict herewith.
(f) Transfer Restrictions. Subject to the terms and conditions of the Redevelopment
Agreement, Declarant may sell, transfer or exchange the Project, the Property or
any portion thereof, but Declarant shall notify the Authority and the City in writing
at least 60 days prior to such sale, transfer or exchange, and use commercially
reasonable efforts to obtain the acknowledgment of any buyer or successor or other
person acquiring the Project or any interest therein that such acquisition is subject
to the covenants and restrictions of this Declaration (and to the requirements of
Redevelopment Agreement incorporated herein). Such notification shall not be
required by any lender foreclosing on the Property, or any subsequent sale by such
lender. Failure by Declarant to obtain such acknowledgment shall not be deemed
to impair the covenants and restrictions of this Declaration.
(g) Alterations; Use. Declarant shall not demolish any part of the Project or
substantially subtract from any real or personal property of the Project or permit
the use of any residential unit for any purpose other than rental housing during the
Term of this Declaration unless required by law.
(h) Casualty. Promptly upon any casualty loss or damage to all or any part of the
Project (including subsurface structural support elements), Declarant shall proceed
with diligence to restore the Project to the condition prior to the casualty with the
insurance proceeds obtained with respect to the loss or damage to the extent the
insurance proceeds recovered allow for such rebuilding; provided, however,
Declarant shall not be obligated to rebuild the Project if any of Declarant’s lenders
or loan agreements (whether executed before or after the date hereof) do not permit
5
such rebuilding or require that insurance amounts recovered with respect to any
loss or damage to the Project be paid directly to the lender.
(i) Remedies; Enforceability. In the event of a violation or attempted violation of any
of the covenants, conditions or restrictions herein contained, the City or the
Authority may institute and prosecute any proceeding at law or in equity to abate,
prevent or enjoin any such violation, or enforce specific performance by Declarant
of the covenants, obligations, conditions and/or restrictions set forth herein, or to
recover monetary damages caused by such violation or attempted violation.
Declarant specifically acknowledges that the City and the Authority cannot be
adequately compensated by monetary damages in the event of any default
hereunder. Unless terminated as provided herein, the provisions hereof are
imposed upon and made applicable to the Project, and shall be enforceable against
Declarant, each purchaser, grantee, owner or tenant of the Project and the
respective heirs, legal representatives, successors and assigns of each. No delay in
enforcing the provisions of said covenants, conditions and restrictions as to any
breach or violation shall impair, damage or waive the right to enforce the same or
to obtain relief against or recover for the continuation or repetition of such breach
or violation or any similar breach or violation thereof at any later time or times. In
addition to any remedy set forth herein for failure to comply with the restrictions
set forth in this Declaration, the City or the Authority may exercise any remedy
available to it under the Redevelopment Agreement.
5. Indemnification. Declarant hereby indemnifies, and agrees to defend and hold harmless,
the Authority, the City, and their respective officers, officials, employees, and agents, from and against all
liabilities, losses, damages, costs, expenses (including reasonable attorneys’ fees and expenses), causes of
action, suits, allegations, claims, demands, and judgments of any nature arising from the consequences of
a legal or administrative proceeding or action brought against them, or any of them, on account of any
failure by Declarant to comply with the terms of this Declaration, or on account of any representation or
warranty of Declarant contained herein being untrue.
6. Covenants Running With the Land. Declarant intends, declares and covenants, on behalf
of itself and all future owners and operators of the Property and the Project during the Term, that this
Declaration and the covenants and restrictions set forth in this Declaration regulating and restricting the
use, occupancy and transfer of the Property and the Project (a) shall be and are covenants running with the
Property and the Project, encumbering the Property and the Project for the Term, binding upon Declarant’s
successors in title and all subsequent owners and operators of the Property and the Project; (b) are not
merely personal covenants of Declarant; and (c) shall bind Declarant (and the benefits shall inure to the
Authority and the City) and its respective successors and assigns during the Term. Declarant hereby agrees
that any and all requirements of the laws of the State of Minnesota to be satisfied in order for the provisions
of this Declaration to constitute deed restrictions and covenants running with the land shall be deemed to
be satisfied in full and that any requirements of privileges of estate are intended to be satisfied, or in the
alternate, that an equitable servitude has been created to insure that these restrictions run with the land. For
the Term, each and every contract, deed or other instrument hereafter executed conveying the Property and
the Project or portion thereof shall expressly provide that such conveyance is subject to this Declaration;
provided, however, that the covenants contained herein shall survive and be effective regardless of whether
such contract, deed or other instrument hereafter executed conveying the Property and the Project or portion
thereof provides that such conveyance is subject to this Declaration.
7. Notices. Any notice, approval, consent, payment, demand, communication, authorization,
delegation, recommendation, agreement, offer, report, statement, certification or disclosure required or
6
permitted to be given or made under this Declaration, whether or not expressly so stated, shall not be
effective unless and until given or made in writing and shall be deemed to have been duly given or made
as of the following date: (a) if delivered personally by courier or otherwise, then as of the date delivered or
if delivery is refused, then as of the date presented; or (b) if sent or mailed by certified U.S. mail, return
receipt requested, or by Federal Express, Express Mail or other mail or overnight courier service, then as
of the date received. All such communications shall be addressed as follows (which address(es) for a party
may be changed by that party from time to time by notice to the other parties). No such communications to
a party shall be effective unless and until deemed received at all address(es) for such party:
Declarant at: SA Senior Living LLC
15102 Minnetonka Industrial Road
Minnetonka, MN 55345
Attention: Robert Wall
with a copy to: Siegel Brill, P.A.
Attention: Anthony J. Gleekel
100 Washington Avenue South, Suite 1300
Minneapolis, MN 55401
The Authority at: Housing and Redevelopment Authority of St. Anthony Minnesota
3301 Silver Lake Road NE
St. Anthony, Minnesota 55418
Attention: Executive Director
with a copy to: Dorsey & Whitney LLP
Attention: Jay R. Lindgren
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402
The City at: City of St. Anthony
3301 Silver Lake Road NE
St. Anthony, Minnesota 55418
Attention: City Manager
with a copy to: Dorsey & Whitney LLP
Attention: Jay R. Lindgren
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402
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.
8. Amendment. The provisions of this Declaration shall not be amended, terminated
or deleted during the Term hereof, except by an instrument in writing duly executed by the
Authority, the City, and Declarant, their respective successors and assigns.
9. Attorneys’ Fees. In case any action at law or in equity, including an action for declaratory
relief, is brought against Declarant to enforce the provisions of this Declaration, Declarant agrees to pay
the reasonable attorneys’ fees and other reasonable expenses paid or incurred by the City and/or the
Authority in connection with the action.
7
10. Governing Law. This Declaration is governed by the laws of the state of Minnesota and,
where applicable, the laws of the United States of America.
11. Severability. If any provisions hereof shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining portions shall not in any way be affected or impaired.
\[Remainder of Page Intentionally Left Blank. Signature Pages Follows\]
8
IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed as of the date first
written above
SA SENIOR LIVING LLC, a Minnesota limited
liability company
By:
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me on this ___ day of ___________,
2021, by _____________, the _____________ of SA Senior Living LLC, a Minnesota limited
liability company, on behalf of the company.
IN WITNESS WHEREOF, I have set my hand and my official seal this ___ day of
__________, 2021.
Notary Public
.
THIS DOCUMENT WAS DRAFTED BY:
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402-1498
\[Signature Page to Declaration of Covenants and Restrictions\]
Exhibit A
Legal Description of the Property
The following described land situated in the County of Hennepin and State of Minnesota:
The West 260.00 feet of that part of the South 1/2 of the Northwest Quarter of Section 7, Township
29, Range 23, beginning at a point in the South line of said Tract 100 feet East of the Southwest
corner thereof; thence North 1079.8 feet; thence East parallel to the South line of said quarter
section 1041.74 feet; thence South to center of State Highway No. 63; thence southwesterly along
said center line of State Highway No. 63 and St. Anthony and Taylor Falls Road to intersection of
center line of said road with the South line of said quarter section; thence West along said latter
line to the point of beginning, except that part thereof embraced in the South 365 feet of the West
395 feet of the Southwest Quarter of the Northwest Quarter of said Section 7 and except the
easterly 100 feet thereof.
And,
That part of the Northwest Quarter of Section 7, Township 29, Range 23, described as
commencing at a point on the South line of said Northwest Quarter distant 100 feet Easterly from
the Southwest corner of said Northwest Quarter; thence Northerly parallel with the West line of
said Northwest Quarter to the South line of MURRAY HEIGHTS ADDITION TO
MINNEAPOLIS, being the actual point of beginning; thence Southerly along said parallel line to
a point distant 1079.8 feet Northerly from said South line of the Northwest Quarter; thence on an
assumed bearing of North 89 degrees 24 minutes 53 seconds East, parallel with the South line of
said Northwest Quarter a distance of 947.24 feet; thence North 01 degree 00 minutes 45 seconds
East to said South line of MURRAY HEIGHTS ADDITION TO MINNEAPOLIS; thence
Westerly along the last described line to the point of beginning.
\[Exhibit A to Declaration of Covenants and Restrictions\]
Exhibit B
Form of Certification of Tenant Eligibility
B-1
\[Exhibit B to Declaration of Covenants and Restrictions\]
B-2
\[Exhibit B to Declaration of Covenants and Restrictions\]
Exhibit C
Form of Certificate of Continuing Program Compliance
Certificate of
Continuing Program Compliance
Date: ___________________
The following information with respect to the Project located at _______________, St. Anthony,
Minnesota (the “Project”), is being provided by SA SENIOR LIVING LLC, a Minnesota limited liability
company (“Declarant”) to the City of St. Anthony, Minnesota, a Minnesota statutory city (the “City”) and
the Housing and Redevelopment Authority of the City of St. Anthony, Minnesota, a public body corporate
and politic organized and existing under the laws of the State of Minnesota (the “Authority”), pursuant to
that certain Declaration of Covenants and Restrictions (Affordable Housing) dated ________________
___, 20___ (the “Declaration”), with respect to the Project:
(A) The total number of Affordable Units which are available for occupancy is 7 \[or
5% of total units\]. The total number of these units occupied is _________________.
(B) The total number of units occupied by “Qualifying Tenants,” as the term is defined
in the Declaration (for a total of 7 units \[or 5% of total units\]) is ____________ (may use the Table
below or attach a rent roll)
___________ _________________ _________________
Number of
Unit Persons Number of Total Adjusted Date of Initial
Name of Tenant Rent
Number Residing in Bedrooms Gross Income Occupancy
the Unit
1
2
3
4
5
6
7
C-1
\[Exhibit C to Declaration of Covenants and Restrictions\]
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9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
(C) Declarant has obtained a “Certification of Tenant Eligibility,” in form materially
consistent with the form provided as Exhibit B to the Declaration, from each Tenant named in
above, and each such Certificate is being maintained by Declarant in its records with respect to the
C-2
\[Exhibit C to Declaration of Covenants and Restrictions\]
Project. Attached hereto is the most recent “Certification of Tenant Eligibility” for each Tenant
named in (B) above who signed such a Certification since ______________, _____, the date on
which the last “Certificate of Continuing Program Compliance” was filed with the Authority and
the City by Declarant.
(D) In renting the residential units in the Project, Declarant has not given preference to
any particular group or class of persons (except for persons who qualify as Qualifying Tenants);
and none of the units listed in (B) above have been rented for occupancy entirely by students, no
one of which is entitled to file a joint return for federal income tax purposes. All of the residential
units in the Project have been rented pursuant to a written lease, and the term of each lease is at
least twelve (12) months.
(E) The information provided in this “Certificate of Continuing Program Compliance”
is accurate and complete in all material respect, and no matters have come to the attention of
Declarant which would indicate that any of the information provided herein, or in any “Certification
of Tenant Eligibility” obtained from the Tenants named herein, is inaccurate or incomplete in any
material respect.
(F) The Project is in continuing compliance with the Declaration.
(G) Declarant certifies that as of the date hereof at least 7 \[or 5% of total units\] of the
residential dwelling units in the Project are occupied or held open for occupancy by Qualifying
Tenants, as defined and provided in the Declaration.
(H) The rental levels for each Qualifying Tenant comply with the maximum permitted
under the Declaration.
IN WITNESS WHEREOF, I have hereunto affixed my signature, on behalf of Declarant, on
____________________, 20___.
SA SENIOR LIVING LLC, a Minnesota limited
liability company
By:
Its:
C-3
\[Exhibit C to Declaration of Covenants and Restrictions\]