The URL can be used to link to this page

Home My WebLink About3. Property Tax Abatement/Business Subsidy/Master Development Agreement for Dean Lakes Project-Res. No. 5981 ~3 CITY OF SHAKO PEE Memorandum TO: Mayor and City Council FROM: Paul Snook, Economic Development Coordinator '$ SUBJECT: Public Hearing regarding property tax abatement and Business Subsidy / Master Development Agreement for the Dean Lakes Project Resolution 5981, Resolution approving property tax abatement for certain property in the City of Shakopee and a Master Development Agreement between the City and Ryan Companies US, Inc. MEETING DATE: December 9, 2003 INTRODUCTION Per recommendation of the Economic Development Advisory Committee, the City Council is asked to: . Hold a public hearing regarding property tax abatement for property located in the southeast quadrant of the County Road 83 and Highway 169 intersection, consisting of Outlots A, I and J of the preliminary plat known as Dean Lakes (referred to as the "Commercial Property"). The Commercial Property is part of the mixed-use Dean Lakes development. . Adopt Resolution 5981, approving property tax abatement for certain property in the City of Shakopee and a Master Development Agreement between the City and Ryan Companies US, me. BACKGROUND At its August 21, 2003 meeting, the Economic Development Advisory Committee made recommendation to the City Council to: (1) Hold a public hearing for business subsidies and property tax abatement for the proposed Dean Lakes project; (2) Approve the amended Application for Business Subsidies submitted by Ryan Companies US me.; and (3) Enter a Master Development Agreement with Ryan Companies for property tax abatement for said project. The ED Advisory Committee's recommendation has not been before the City Council until now due to there being extensive review by involved boards and commissions for many aspects ofthe project, and the intent is, for efficiency, to coordinate the project so as to present the necessary decision items to Council in as few meetings as possible. Dean Lakes Pub Hear - Res 5981 Memo 12-09-03.doc 1 Ryan Companies submitted an Application for Business Subsidies in January 2003 requesting tax abatement for the Dean Lakes project. The ED Advisory Committee made recommendation to the EDA / City Council to receive the application and initiate negotiation of a Master Development Agreement with Ryan which would specify the tenus under which tax abatement would be used to assi~t in financing the project. The EDA / City Council received the application, and since February, City staff has been in discussion / negotiation with Ryan on abatement terms and land use of the project. At the August 5th meeting, Ryan asked EDA / City Council for authorization to amend the original Application for Business Subsidies, which includes changes in the mix of land use, elimination of the request for property tax abatement on residential development and propose it only on commercial development, in which the City will retain part of the City's share of property taxes on the Commercial Property, and use those revenues to help pay special assessments for public infrastructure serving the Dean Lakes project. The EDA / City Council granted the request to amend. The letter amending the application was presented to the ED Advisory Committee for consideration (see Exhibit A), and the committee in turn developed its recommendation as outlined in this memo (See Exhibit B, Minutes from August 21 ED Advisory Committee meeting). DISCUSSION Rationale for Public Financing Request According to Ryan's development proforma which has been analyzed by Springsted, the City's financial advisor, the combined cost of site development, infrastructure and fees cannot be economically absorbed by the project without assistance based upon the limited development density required by the conservation development approach versus a more typical development design with more density and few conservation development features. The conservation approach, reflected in Brauer & Associates' study Community Values Statement for the West Dean's Lake Area, reduces the density of a typical development. The basis for requesting tax abatement is due to the combined cost of assessments for the County Roads 16 & 83 improvements, for internal road improvements, and the costs relating to conservation development as outlined in the Brauer & Associates' study. The infrastructure improvements and related assessments, and the specialized improvements necessary to implement the conservation development approach substantially increases overall project costs and inflates the asking price ofthe land beyond the market for comparable real estate. m addition, the improvements to CR 83 /16, which is considered an improvement that would serve a broad area in south Shakopee, would typically be funded through the County, but the County did not include these improvements in its plan, so Valley Green Business Park (VGBP) is being assessed for the 83/16 improvements. These assessments are part ofthe purchase agreement between VGBP and Ryan Companies. VGBP has reduced its asking price significantly on this property. Dean Lakes Pub Hear - Res 5981 Memo 12-09-03.doc 2 Financial Analvsis Enclosed is Exhibit C, a memo and abatement spreadsheet from Springsted Financial Advisors outlining and analyzing the financial components of the Ryan proposal. From the analysis Springsted concludes that the project will not be feasible at a base land price of $4.24 per square foot, without abatement. Again, based upon the limited development density required by the conservation development as compared with a typical design with more density and few conservation attributes, the cost of site development, infrastructure and fees cannot be absorbed by the project without abatement. If the anticipated build-out takes 10 years, then a subsidy in the amount of just under $2 million will be necessary to make this project competitive with other commercial developments in the Twin Cities market. . Tax abatement would be limited to the 44 acre (approximately 140,000 SF) Commercial 1 Retail part of the development. The availability of the tax abatement would be limited to an estimated $2,000,000; it could be slightly more or less depending on valuation and the build out schedule. The abatement proceeds would be utilized to pay down a portion of the assessment against the Business Park property relating to the County Roads 83 and 16 improvements, and internal infrastructure improvements. In addition, tax increment financing would be considered on qualified developments in the Business Park part of the development. Each company/owner would apply for TIF individuallv (Ryan Companies would not apply for TIF). . The City's abatement cap will be applied to the commercial part of the project. Under state law, a city's abatement capacity is 10% of its annual levy. The maximum abatement for this project is proposed to be no more than the City's statutory cap minus the CertainTeed abatement, and then 25% percent of that result. The other 75% of the City's abatement capacity would not be used for Valley Green Corporate Center projects but would be reserved for projects in other areas of town. . The abatement would be structured as "pay-as-you-go" (eligible expenses are paid for as they are incurred). According to Springsted's analysis, but-for the use of tax abatement, development of the Dean Lakes Business Park will not occur since it is more costly to develop than would develop otherwise. If the Dean Lakes project does not become a reality, Valley Green Business Park will have to sell the land to another party, which could result in a lower quality development than the proposed conservation development. Summary of Terms of the Master DevelolJment Agreement: Exhibit D is the Summary of the Master Development Agreement, and the Master Development Agreement between City of Shakopee and Ryan Companies. These documents show the conditions under which property tax abatement would be used to carry out certain public purposes, including the financing of public infrastructure. Dean Lakes Pub Hear - Res 5981 Memo 12-09-03.doc 3 A summary of the tenus is as follows: . Background: The City has previously levied assessments for County Road 83/16 improvements against the entire property (referred to as "Existing Assessments"). When the property is platted, the assessments will be allocated to the various areas, including the proposed Business Park (generally located along the north side of the property). m addition, the plat wiII require assessments for new internal infrastructure (referred to a "New Assessments"). In order to assist in bringing the cost of property in the Business Park down to market rates, the City wiII use property tax abatement to help pay for the Existing Assessments and New Assessments on the Business Park property only. . Abatement for infrastructure. At the time of approving the Master Development Agreement, the City wiII approve an "abatement" of the City share of taxes from the Commercial Property (i.e., the part of the plat to be developed along County Road 83). The City wiII use those abatement dollars solely to pay for the Existing Assessments and the New Assessments against the Business Park Property. . Abatement Terms. The term of the abatement will be 15 years for each parcel of the Commercial Property, beginning with the first year after a parcel is fully developed. The structure of the financing would be a "rolling" abatement in that different properties would start and end respective abatement terms at different times. The abatement in any year wiII never exceed the lesser of 25% of the statutory abatement capacity for the city as a whole (which is 10% ofthe City's annual tax levy); or the installment of Existing Assessments and New Assessments against the Business Park Property due in that year. . Business Park Development. The City wiII consider entering into individual agreements with mdividual Developers of parcels in the Business Park, contingent on the proposed developments meeting specified criteria. The minimum criteria for each development are: 1. The proposed use must be office, manufacturing, or warehouse/distribution. 2. The value of the improvements must be at least $25/sq. ft. for manufacturing, warehouse, or distribution; and $45/sq. ft. for office buildings. 3. Each development must meet specified job and wage criteria. Generally, number of jobs is tied to size of the facility, and wages must be at least the level in the City's business subsidy policy. The City's recently-adopted policy requires 275% of federal minimum wage. The current federal minimum is $5.15, so the required minimum is now $14. 16/hour. Dean Lakes Pub Hear - Res 5981 Memo 12-09-03.doc 4 An Individual Developer may agree to accept all special assessments and repay any past abatement assistance for that parcel, in which case no City approval or individual development agreement is required. . Schedule for Development. The first mdividual Improvement must create at least 20,000 square feet, and must be commenced by December 31,2008. The Business Park must be at least 75% developed by December 31,2022. . Business Subsidies to Individual Developers. Generally, the abatement for infrastructure will be treated as a subsidy that benefits the Individual Developer who buys a parcel in the Business Park (unless that developer waives all subsidy assistance, as described above). If the Individual Developer fails to meet the job and wage goals, it must repay the abatement assistance paid by the City regarding that parcel to date. . Business Subsidies to Ryan. If Ryan as master developer fails to commence the minimum required improvements or complete the 75% build out, all according to the schedule described above, the abatements allocated to the undeveloped parcels will be treated as a subsidy that benefits Ryan. At the time of default (i.e., failure to commence or complete) Ryan will be required to give a deed to the City for undeveloped land in the Business Park that has a value equal to the abatements previously paid by the City through the date ofthe default. . TIF or Additional Abatement Assistance. The developer of each Individual Improvement may ask the City to create a TIP District (or abatement) for that parcel. The City will review those requests on a case by case basis. Generally, the developer will need to show how and why the additional assistance is necessary. (This assistance would be generated from the parcel in question, and would be in addition to the abatement from the Commercial Property that was used to buy down assessments.) The developer may also seek abatement assistance from the County, and if the County approves the City will cooperate in implementing the County abatement. Findinf!s; Benefits to the City from the Abatement Financinf; The Economic Development Advisory Committee fmds that the abatement and the execution of the Master Development Agreement are in the public interest for the reasons that these actions will increase the City's tax base, provide employment opportunities within the City, and help finance public infrastructure. The public purposes served by the Abatement outweigh any private benefit to the Developer, Ryan Companies US, mc, or any subsequent developer in the Business Park Property. As expressed in Springsted's analysis, development ofthe Business Park Property would not occur in the reasonably foreseeable future without Dean Lakes Pub Hear - Res 5981 Memo 12-09-03.doc 5 the abatement, and therefore the public benefits are directly attributable to the City's assistance through the abatement. Any private benefits are incidental to the following public benefits, which are part of the criteria in the City's Business Subsidy Policy: . The estimated $243,000,000 development will provide an estimated $88,250,000 increase in market value within the Business Park Property, which is not subj ect to the abatement, and an estimated $21,366,000 increase in market value within the Commercial Property, which will be available to all taxing jurisdictions after expiration of the Abatement, resulting in an Increase in tax base . Help finance major improvements to County Roads 83 and 16 and additional infrastructure needed to serve the Dean Lakes Project. . Improve the economic vitality of the City through creation of manufacturing, warehouse and office-related jobs. . Foster high quality development and a mixture of uses at a key location in the City. . mcrease living wage jobs in the City. . Make use of and support existing and future transportation systems. . A Conservation Development as guided by the Deans Lake Master Plan and related Community Values Statement for the West Dean's Lake Area OPTIONS 1. Offer and pass Resolution 5981, Resolution approving property tax abatement for certain property in the City of Shakopee and a Master Development Agreement between the City and Ryan Companies US, mc. 2. Do not offer and pass Resolution 5981 3. Table and request additional information from staff RECOMMENDATION Option 1, per recommendation ofthe Economic Development Advisory Committee ACTION REQUESTED Offer and pass Resolution 5981, Resolution approving property tax abatement for certain property in the City of Shakopee and a Master Development Agreement between the City and Ryan Companies US, mc. Dean Lakes Pub Hear - Res 5981 Memo 12-09-03.doc 6 CITY OF SHAKOPEE RESOLUTION NO. 5981 RESOLUTION APPROVING PROPERTY TAX ABATEMENT FOR CERTAIN PROPERTY IN THE CITY OF SHAKOPEE AND A MASTER DEVELOPMENT AGREEMENT BETWEEN THE CITY AND RYAN COMPANIES US, INC. BE IT RESOLVED By the City Council ("Council") of the City of Shakopee, Minnesota ("City") as follows: Section 1. Recitals. 1.01. Under Minnesota Statutes, Sections 469.1812 to 469.1815 (the "Act"), the City is authorized to approve a property tax abatement to carry out certain public pmposes, including the financing of public infrastructure. 1.02. The City has considered an abatement under the Act regarding certain property in the City described in Exhibit A hereto (the "Commercial Property"), which property is part of a larger development known as the "Dean Lakes Project." 1.03. The City has prepared a Master Development Agreement ("MDA") between the City and Ryan Companies US, Inc. ("Developer"), providing for development of the Dean Lakes Project for various commercial and residential uses. 1.04. Under the Act, the City is authorized to retain abatements from property in order to provide or finance public infrastructure. The MDA provides, among other things, that the City will apply abatements from the Commercial Property in order to defray the cost of special assessments against certain property in the Dean Lakes Project referred to as the "Business Park Property." Certain assessments previously levied for County Road 83 and 16 are referred to as "Existing Assessments," and assessments for new infrastructure to be constructed within the Dean Lakes Project are referred to as "New Assessments." 1.05. The MDA also provides that the Developer will facilitate development of the Business Park Property by "Individual Developers," each of whom will enter into an "mdividual Development Agreement" with the City regarding specific parcels ofthat property. 1.06. The use of abatement to finance assessments as described in the MDA also constitutes a business subsidy in excess of $100,000 within the meaning of Minnesota Statutes, Sections 116J.993 to 116J.995 (the "Business Subsidy Act"), and the MDA includes a business subsidy agreement as required under the Business Subsidy Act. SJB-239851 vI SH235-12 1.07. On December 9,2003 the City Council conducted a duly noticed public hearing on the Abatement (as hereinafter defined) and the business subsidy described in the MDA, at which the views of all interested persons were heard. 1.08. The capitalized terms in this Resolution have the meaning given in the MDA unless otherwise provided herein. Section 2. Findings. 2.01. It is hereby found and determined that the benefits to the City from the Abatement will be at least equal to the costs to the City of the Abatement, because (a) the Abatement will help finance public infrastructure that serves the Dean Lakes Project (b) such assistance will directly stimulate development of the Business Park Property, which will increase the City tax base; and (c) upon termination of the Abatement collected from each Parcel of Commercial Property, such tax base will also be available to the City. 2.02. It is hereby found and determined that the Abatement and the execution ofthe MDA are in the public interest because such actions will increase the tax base of the City, provide employment opportunities within the City, and help finance public infrastructure. The City expressly finds that the public purposes served by the Abatement, described in Section 2.03 below, outweigh any private benefit to the Developer or any subsequent mdividual Developer in the Business Park Property. The City reasonably believes that Development of the Business Park Property would not occur in the reasonably foreseeable future absent the Abatement, and therefore the public benefits are directly attributable to the City's assistance. Any private benefits are merely incidental to the public benefits outlined below. 2.03. It is further specifically found and determined that the Abatement is expected to result in the following public benefits: (a) Create an estimated $88,250,000 increase in estimated market value within the Business Park Property, which is not subject to the Abatement, and an estimated $21,366,000 in market value within the Commercial Property, which will be available to all taxing jurisdictions after expiration ofthe Abatement. (b) Help finance major improvements to County Roads 83 and 16 as well as additional infrastructure needed to serve the Dean Lakes Project. (b) Improve the economic vitality of the City through creation of manufacturing, warehouse and office-related jobs. (c) Foster high quality development and a mixture of uses at a key location in the City. (d) mcrease living wage jobs in the City. (e) Make use of and support existing and future transportation systems. SJB-239851vl 2 SH235-12 Section 3. Actions Ratified; Abatement Approved. 3.01. The Council hereby ratifies all actions of the City's staff and consultants in arranging for approval ofthis resolution in accordance with the Act. 3.02. Subject to the provisions of the Act, the Abatement is hereby approved and adopted subject to the following terms and conditions: (a) The term "Abatement" or "Abatements" means the real property taxes generated in any tax-payable year by extending the City's total tax rate for that year against the tax capacity of Commercial Improvements constructed on each Parcel of the Business Park Property in accordance with the MDA, excluding the tax capacity of the land and excluding any portion of the tax capacity attributable to the areawide tax under Minnesota Statues, Chapter 473F, all as of January 2 in the prior year. (b) The Abatements will be collected for each separate Parcel of the Commercial Property for a period of 15 years, commencing in the first tax-payable year after substantial completion of the Commercial Improvements on that Parcel in accordance with the MDA. The Abatement for each Parcel terminate on the earlier of (i) the date all Existing Assessments and New Assessments against the entire Business Park Property have been paid in full, or (ii) after the 15th year of collection of Abatements from that Parcel. Notwithstanding anything to the contrary in this paragraph, the 15-year duration of Abatement collection under this Resolution is subject to the condition that either Scott County or mdependent School District No. 720 declines to grant an abatement for the Commercial Property in accordance with Section 469.1813, Subdivision 6(b) of the Act. If both those entities approve an Abatement for any Parcel of the Commercial Property, the duration of the Abatement for that Parcel is reduced in accordance with Section 469.1813, subdivision 6(b). (c) The City will retain Abatements and apply them to pay the cost of Existing Assessments and New Assessments on the Business Park Property, all subject to the limitations, terms and conditions of the MDA, which terms are incorporated herein by reference. (d) The Abatement is subject to modification in accordance with the Act, subject to the terms ofthe Development Agreement. Section 4. Agreement Approved; Notice Filing; Effective Date. 4.01. The Council hereby approves the MDA. The Mayor, the City Clerk and City Administrator are authorized and directed to execute the MDA in substantially the form on file with the City, subject to modifications that do not alter the substance of the transaction and are approved by the Mayor, Administrator and Clerk, provided that execution of the document by such officials is conclusive evidence of their approval. Such officials are also authorized to execute any and all other documents that are required by the MDA, except that nothing herein SJB-239851vl 3 SH235-12 will be considered approval of any mdividual Development Agreement with any mdividual Developer. 4.02. The City Administrator is authorized and directed to file the notice to Scott County and mdependent School District No. 720 in order to qualify the Abatement for a 15-year duration pursuant to Section 469.1813, Subdivision 6(b) ofthe Act. 4.03. This resolution is effective upon execution in full of the MDA. 818-239851 vI 4 8H235-12 Approved by the City Council of the City of Shako pee, Minnesota this 9th day of December, 2003. Mayor Attest: City Clerk SJB-239851vl 5 SH235-12 EXHIBIT A THE PROPERTY Outlots A, I and J, Dean Lakes, the preliminary plat of which is on file in City Hall. As such property is developed, individual lots will be created through replatting and/or subdivision, and Abatements will be collected for each separate Parcel in accordance with the terms of the Master Development Agreement between the City and Ryan Companies US, mc. SJB-239851 v 1 SH235-12 PATRICK G. RYAN President ~ RYAN U),\'1I't\NIFS Us, INl.. ~YAN SO Stlllrh TC.'llrh SlrL'l'r. Suirl' .~()() ;\'lil1ll';\I'"I;" ;\'1 N 554tU-lilll p':ll. r)'iJl1C!i'r)'r.l17cCJJ11/JtI nies.cr Utl aUILDIMG LASTING R1ilATtOHSHIPS (, 11-4~1-4.171i I'" 612~41)2-3376 I~t.\' August 15, 2003 Mr. Paul Snook Economic Development Director City of Shakopee 129 Holmes Street South Shakopee, MN 55379 Dear Paul: On January 24, 2003 Ryan Companies submitted an application requesting a business subsidy for the Dean's Lake Master Plan Mixed Use Development. At the present time, we are amending our request for assistance based upon the ongoing discussions and negotiations that have occurred with City officials. Key elements of our revised proposal and amended request for assistance are as follows: 1. Proposed land use mix: . 90 acres Business Park . 44 acres Commercial/Retail . 42 acres Residential (295 units) . 84 acres Natural Open Space . 14 acres Right of Way 2. Eliminate the tax abatement request on residential development. 3. Request the use of tax abatement on the 44 acre Commercial/Retail (approximately 140,000 SF) development. The availability of the tax abatement would be limited to $1,068,240 or 18 years whichever occurs first. The abatement proceeds would be utilized to pay down a portion of the assessment against all Commercial and Business Park property relating to the County Roads 16 and 8 improvement. J:IEXECUTIVEIPGRIL TRISNOOK.CITY OF SHAKOPEE.DOC/RE \ August 15,2003 ~YAN Page 2 BUILDING l.ASTING RELA.TIONSHIPS 4. Obtain a waiver of park dedication fees for residential development if the development meets the criteria for such City Subdivision Ordinance. Estimated value = $660,000 - $690,000 depending on unit mIX. The developer makes this request because we are dedicating approximately 15 acres of park land (within the 84 acres of open space) and making recreational improvements such as swimming pools, tot lots and an extensive regional trail system. 5. Obtain a storm water fee credit based upon approval by the City Engineer of detailed plans that demonstrate the ability to adequately manage storm water drainage within the development. Estimated value = $1,236,000. 6. Acknowledgement that future development projects to be undertaken by commercial/industrial users will be eligible for utilization of Tax mcrement Financing (TIF) or other business subsidies. Requests by these applicant companies are to be treated in the same manner as projects that may occur anywhere else in the community. The ability of Ryan Companies to proceed under this revised application for assistance will require mutual cooperation from Scott County on the tax abatement request. Thank you for your time and consideration. We look forward to working with you towards implementing this development. , Sincerely', 1~ J .. Patrick G. Ryan c: Kent Carlson Dave Sellergren Roger Gruenette Mark McNeill Cindy Geis J:IEXECUTIVEIPGRILTRISNOOK.CITY OF SHAKOPEE.DOC' CITY OF SHAKOPEE Application for Business Subsidies S COIvrMUNITY PRIDE SINCE 1857 129 Holmes Street South Shakopee, MN 55379 Phone (952) 445-3650 Fax (952) 445-6718 App for Business Subsidies 1203.doc Section I: General Information ** With this application, please submit a formal letter requesting the assistance. 1. Business Name: Ryan Companies US. Inc. 2. Address: 50 South Tenth Street. Suite 300 Minneapolis. MN 55403 3. Contact Person: Kent Carlson 4. Telephone: (612) 492-4229 5. Fax: (612) 492-3229 6. E-Mail: kent.carlson@ryancompanies.com 7. Brief Description of the Business / Company: Rvan Companies has 50+ years experience in designing. constructing. developing and managing commercial. industrial. institutional and residential proiects. ' 8. Parent Corporation, if any: N/ A 9. Consultant information, if applicable: Name: Roger Guenette - Advance Resources for Development. Inc. Address: PO Box 3027: Mankato. MN 56002 Telephone: (507) 387-7117 Fax: (507) 387-6115 E-Mail: guenette@hickorvtech.net 10. Type of Subsidy Requested: o Tax Increment Financing X Tax Abatement 11. Amount of Subsidy Requested: $1.982.846 12. Public Purposes of the Subsidy: To fund extraordinary costs of infrastructure relating to regional transportation improvements (County Road 83/16 intersection) and internal infrastructure in support of Dean Lakes Master Plan Mixed Use Development. App for Business Subsidies 1203.doc 13. Location of Proposed Project: NE quadrant County Road 83 and US Highway 169 14. Legal Description of Project Location: See attached Exhibit A 15. Property Identification Number(s): 27-042001-0~ 27-909010-0~ 27-909011-0: 27-909008-0: 27-909009-0: 27-910008-0 16. Present Ownership of the Site: Valley Green Business Park L.P. 17. Name / Description of the proposed project (Attach site plan, if available): Dean Lakes Master Plan Mixed Use Development (site plan attached) 18. Size ofthe Property 272 Acres 19. Estimated Total Building Square Footage: Commercial Industrial Space approx 1.753.000 sq. ft. 295 units of residential 20. Estimated size of the Proposed Facility: Manufacturing / Assembly / Processing sq. ft. Office sq. ft. Research Laboratory sq. ft. Warehousing sq. ft. Other (Please Specify ) sq. ft. TOTAL Approx 1.753.000' sq. ft. The breakdown of square feet to be developed per the categories identified above is unknown at the present time. App for Business Subsidies 1203.doc 21. Estimated Project Costs: Land Acquisition $1 1.000.000 Site Development (grading, landscaping, etc.) $12.852.504 Building Cost $200.622.883 Street/Road Improvements (include your costs only) $6.221.505 Utility Improvements (include your costs only) $3.557.301 Capital (machinery and equipment) $Unknown Professional Services (archit., engin.,legal, fiscal) $1.898.160 Fees and Permits (same as total from below) $4.701.510 Other (Marketing, Signage, Conservation restoration and $1.635.110 Pedestrian Trail) TOTAL $242.488.973 22. Estimated Fee and Permit Costs: City Permits and Fees $3.332.610 (Grading, Park Dedication Fees, etc.) Metropolitan Council Fees $ (SAC and WAC Charges) Other fee or permit costs $ (Please Specify ) TOTAL $ 23. Indicate the proposed start date for construction and estimated date of completion: The infrastructure construction ofCountv Roads 16&83 has been completed. The internal infrastructure construction will begin in Winter/Spring 2004. The residential development will begin in Spring 2004 and be completed in 3 years. The CIl construction will begin in Summer/Fa112004 and will be completed in 7-10 years. App for Business Subsidies 1203.doc 24. Proposed Financing Source(s): Equity $28.000.000 Bank Loan $204.466.127 (Check one): o Tax Increment Financing, OR OX Tax Abatement $1.982.846 Industrial Development Revenue Bonds $ Other Local Government Assistance $ (Please specify County Tax Abatement ) 429 Improvement Bonds $4.240.000 County Road 16/83 Assessment Bonds $3,800.000 TOTAL $242.488.973 25. If tax increment financing is requested, please submit a list of eligible project costs (Refer to Section V of the Business Subsidy Policy): N/A 26. The City reserves the right to request tax returns and/or other financial statements from the applicant for the years of operation. 27. The City reserves the right to request three bank references from the applicant. App for Business Subsidies 1203.doc Section II: Employment, Wage and Benefit Information A. EMPLOYMENT 1. Does this project involve the relocation of jobs within the State of Minnesota? DYes OX No a. If so, provide a statement of why the project cannot be completed at its current location / facility: N/A b. Number of full time equivalent (FTE) permanent employee positions at current Minnesota location / facility to be relocated to Shakopee: N/ A 2. If the project is an expansion of an existing Shakopee facility, what is the current number of FTE permanent employee positions? N/ A 3. Estimated Number ofFTE permanent employee positions to be created (within 2 years of issuance of Certificate of Occupancy) as a result ofthe project 600 jobs proiected within two years and 4,430 iobs -proiected within 10 vears. 4. TOTAL number of current and estimated new FTE permanent employee positions (No.2 + No.3 from above) 600 App for Business Subsidies 1203.doc B. WAGES 1. What will be the minimum hourly wage (exclusive of benefits) of the FTE permanent employee positions created by the project? $35.000/vear estimated average wages/salaries 2. The hourly wage of each new permanent FTE employee position, with separate bands of wages, is as follows: Because this -project request for assistance is to fund infrastructure in support of a master plan mixed use development. it is not possible at the present time to identify and detail specific employment positions and related wageslbenefits. Total Number of Wage Levels Per Hour FTE Permanent Emplovee Positions Less Than $12.00 $12.00 - 16.99 $17.00 - 21.99 $22.00 - 26.99 $27.00 - 31.99 $32.00 and Over C. HEALTH INSURANCE BENEFITS The value of health insurance benefits provided by the employer for the above referenced jobs, separated by bands of wages, is as follows: Wage Levels Per Hour Value of Health Insurance Benefits Less Than $12.00 $12.00 -16.99 $17.00 - 21.99 $22.00 - 26.99 $27.00-31.99 $32.00 and Over App for Business Subsidies 1203.doc CITY OF SHAKOPEE, MINNESOTA lID OFFICIAL PROCEEDINGS OF THE ECONOMIC DEVELOPMENT ADVISORY COMl\1ITEE REGULAR SESSION August 21, 2003 Members present: John Mauritz, Brian Langdon, Committee Chair Jeff Jansen, Marshall Walker, Brae Felber Members Absent: None Staff Present: Paul Snook, Economic Development Coordinator Others Present: Kent Carlson / Ryan Companies; Roger Guenette / Advance Resources for Development . Call to Order Meeting called to order at 5:35 p.m., August 21,2003 by Committee Chair Jansen. . Approval of Aeenda Langdon moved to approve the agenda, seconded by Mauritz, motion carried. . Rvan Companies. US Inc. revised Application for Business Subsidies for VaIle:v; Green Corporate Center Snook opened the discussion with reviewing the background of the proposal and explained the revised application. The Economic Development Advisory Committee is asked to make recommendation to the Economic Development Authority and City Council to approve the amended Application for Business Subsidies submitted by Ryan Companies US Inc., set public hearings for business subsidies and tax abatement for the proposed Valley Green Corporate Center Development, and enter a Master Development Agreement with Ryan Companies US Inc and Scott County for tax abatement, fee waivers and fee credits. Ryan Companies submitted an Application for Business Subsidies in January of 2003 requesting tax abatement for the development of the proposed Valley Green Corporate Center (VGCC) project located at the southeast quadrant of the CR 83 and U.S. Hwy 169. The ED Advisory Committee made recommendation to the EDA 1 City Council to receive an Application for Business Subsidies from Ryan Companies, and initiate negotiation of a Master Development Agreement with Ryan which would specify the tenns under which tax abatement would be used in financing the proposed Valley Green Corporate Center. The EDA 1 City Council received the application, and since February, City staff has been in discussion 1 negotiation with Ryan on abatement tenus and the related land use of the project. At the August 5th meeting, Ryan asked for authorization from the EDA / City to amend the original Application for Business Subsidies. The EDA 1 City Council granted the authorization, and now the amended application is before the Economic Development Advisory Committee for consideration. In the original application, Ryan proposed a mixed-use "conservation" development consisting of 79 acres of commercial, 78 acres of residential, 65 acres of natural open space and abundant setback from Dean's Lake among other conservation features. Ryan proposed abatement on the residential part of the project to fund the CR 83/16 improvements 1 assessments, commercial improvements and conservation enhancements. After ongoing discussions with City staff, Ryan is amending its application to include 90 acres of Business Park, 44 acres of Commercial, 84 acres of natural open space, and 42 acres of residential. Ryan proposes to amend the application to use tax abatement on the commercial part of the project (rather than the previously proposed abatement on residential). The amended application largely consists of a 46% reduction in acreage proposed for residential, and proposes to place the abatement on commercial rather than residential property. Tax abatement would be limited to the 44-acre (approximately 140,000 SF) Commercial and Retail part of the development. The availability of the tax abatement would be limited to $1,068,240 or 18 years whichever occurs fIrst. The abatement proceeds would be utilized to pay down a portion of the assessment against all commercial and business park property relating to the County Roads 83 and 16 improvements. Tax increment fmancing would be considered on qualified commercial developments. Each company 1 commercial development owner would apply for TIF individually (Ryan Companies would not apply for TIF). The City's abatement cap will be applied to the commercial part of the project. Under state law, a city's abatement capacity is 5% of its annual levy. The maximum abatement for this project is proposed to be no more than the City's stah1:tory cap minus the CertainTeed abatement, and then 50% percent of that result. The other 50% of the City's abatement capacity would not be used for Valley Green Corporate Center projects but would be reserved for projects in other areas of town, should they occur. The abatement would be structured as "pay-as-you-go" (eligible expenses are paid for as they are incurred). In addition to the tax abatement, Ryan Cos proposes a waiver of park dedication fees and a storm water fee credit. These items will not be considered by the ED Advisory Committee but will be considered by the Parks and Recreation Advisory Board and Environmental Advisory Committee. As in the application in January, the basis for requesting tax abatement is due in part to the cost of the County Roads 16 & 83 improvements. Walker asked what the difference is between commercial and business park types of development. Carlson answered that commercial refers to the commercial support (retail / service) that would tale place at the northwest area of the proposed development, while business park refers to the large footprint / build-to-suit development that would take place on the north edge of the development alon g highway 169. Walker asked why there is a public hearing on business subsidies. Snook responded that State law, under the Minnesota Business Subsidy Act, requires a public hearing, and that a public hearing is also required when use oftax abatement is proposed. Felber asked why the acreage by category has changed since the original proposal last January. Langdon also asked why there has been a change in residential acreage. Carlson replied that the community and Planning Commission desired to have a reduction in the acreage dedicated to residential development. Langdon added that the area next to dean's lake seems to be an attractive area for upper scale single family residential development. Walker asked why, in the revised proposal, is build to suit 1 business park development proposed to be next to residential. Carlson answered that commercial development characterized by retail and service activity (c-stores, restaurants, etc.) with lights and traffic activity are more dismptive to residential areas that build to suit / business park development, which ceases to to be active generally after a typical 8am to 5pm business day. Mauritz asked how many attached residential units there would be. Carlson replied that the final number of units has not yet been determined and that Ryan Cos is currently working gon that. Langdon added that the area, and Shakopee in general does not need more attached residential development. Guenette explained the tax abatement estimate, which includes $35,000 per year for the first four years; phased abatement terms would be 15 years each with total time of abatement being 18 years. Mauritz inquired as to the tax abatement capacity with 5% growth in the proj ection. Guenette answered that the abatement law has changed a city's abatement cap from 5% of its annual levy to 10%. The maximum abatement for this project is proposed to be no more than the City's statutory cap, minus the CertainTeed expansion project, and then 50% ofthat result. Mauritz asked what the figures in the bottom row of the projection mean. Guenette. said that represents present value or what the total is in today's economy; present value at 8% discount rate. Walker mentioned that he agreed 8% is a good estimate. Mauritz asked how abatement is generated. Guenette answered that it is essentially the same as tax increment where a base value on the property is established and an estimate is arrived at based on the improvements, and the difference between the two figures is the abatement amount. Carlson added that the abatement is proposed to be dedicated to the 83/16 improvements, which historically have been funded by the County. Guenette added that Ryan prefers as short oftenn abatement as possible. Carlson explained the waiver of park dedication fees and storm trunk fees. The park fee waiver will be requested on residential only because park benefits will be community wide. Mauritz moved to make recommendation to the Economic Development Authority and City Council to approve the amended Application for Business Subsidies submitted by Ryan Companies US Inc., set public hearings for business subsidies and tax abatement for the proposed Valley Green Corporate Center Development, and enter a Master Development Agreement with Ryan Companies US Inc and Scott County for tax abatement, fee waivers and fee credits. Motion seconded by Walker. Motion carried unanimously. Jansen reiterated that the ED Advisory Committee through its action is providing recommendation to the Economic Development Authority and City Council in order to move the public process forward to the ultimate decision makers. . Other Business There was no other business. . Adjourn Felber moved to adjoUrn; seconded by Langdon; motion carried. Meeting adjourned at 7: 16 p.m. 8S E. SEVENTH PlACE, SUITE 100 'Cl SAINT PAUL, MN 55101-2887 ~ 651-223-3000 FAX: 651-223-3002 SPRIN GSTED . # :ldr.lsors to rhc Public Sector ~~.: i..... ..:/.'.... ~,/ !' I .""'./ I/': I ". .L.-J MEMORANDUM TO: Mark McNeill, City Administrator Paul Snook, Economic Development Coordinator FROM: Paul T. Steinman, VP Housing & Economic Development DATE: December 5, 2003 SUBJECT: Ryan Proposal- Dean Lakes Corporate Center The purpose of this memo is to outline the tax abatement request made by Ryan Companies to facilitate a mixed use development on approximately 176 developable acres at the intersection of County roads 83/16. Ryan is requesting City abatement assistance from the commercial/retail component in the amount of $1 ,982,846 (through 2025) to pay current and future assessments on the business park property. Ryan's previous request was that the City and County partner on an abatement that would total approximately $6.6 million, with $1.5 million coming from the City and $5.1 million from the County. But/For Analvsis The but-for test is used to determine whether or not a project will proceed as proposed without the use of public dollars. Springsted conducted an extensive analysis which was presented to the Council in February 2003, confirming that "but-for" the subsidy, the project would not proceed as planned. A method of analysis which was used was simply to compare the price of fully improved land both with and without a subsidy, to the current market rate. The results are as follows: Ryan Development Proposal for Fully Current Market Rate for Fully Improved Land Improved Land Without Subsidy With Subsidy $2 25 t 2 75 $4.24 (Feb. 03) $3.08 (Feb. 03) . o. $4.16 (Current) $3.93 (Current) From the table above we conclude that the subsidy reduces the developer's land cost by .23 per square foot (psf), to $3.93 psf, a point still projected to be significantly higher than current market. The developer has indicated that companies locating in the business park might request additional assistance in the form of TIF in order to further reduce the land price. Each company requesting TIF assistance would have to apply individually according to the City's CORPORATE OFFICE: SAINT PAUL. MN . Visit our website at www.springsted.com IOWA . KANSAS . MINNESOTA . VIRGINIA . WASHINGTON,DC . WISCONSIN City of Shakopee December 5, 2003 Page 2 Business Subsidy Policy, and each proposed TIF application/project would have to stand on its own merits and meet all the statutory tests required (but-for test, etc.) to receive assistance. The amount of the current subsidy request overall is significantly lower than the previous request, while the costs of the project remain generally the same with the exception of the land. Although the land price has been reduced, such reduction does not equal or exceed the difference between the previous and current abatement requests. The table above shows that the previous request reduced the land cost about $1.16 psf ($4.24 minus $3.08) compared to the current request which reduces the land cost .23 psf ($4.16 minus $3.93). Therefore we conclude, given all other assumptions remain static, that the but-for test is still valid. Deal Structure The mixed use project will consist of approximately 44 acres of commercial development, 42 acres of residential development, and 90 acres of business park property. Values for the commercial and residential components are as follows: . 278,000 square feet of commercial/retail at a total value of $21,366,000 to be constructed in 2004 - 2009 . 1,475,000 of build to suit industrial/office at a total value of $88,250,000 to be constructed in 2004 - 2013 . 295 residential units at a total value of $75,250,000 to be constructed in 2004 - 2006 Total value is projected to be approximately $184,866,000. The project is proposed to be structured as follows: . The 278,000 square feet of commercial/retail will generate abatements to be used to benefit only the business park property. Neither the commercial/retail nor the housing components will benefit from the abatement. . The abatement will be generated through individual 15 year terms with the earliest starting in 2006 and ending in 2020 and the last abatement project starting in 2011 and ending in 2025. . The aggregate abatement is estimated to be $1,982,846, (today's value $899,277 at a 7% discount rate) . The abatement will be provided on a pay-as-you-go basis to pay levied assessments against the business park property for County 83/16, and future assessments for the business park property for internal public improvements. 0 Pay-as-you-go provides the subsidy to the developer over time, as taxes are generated on the project. The subsidy is only provided to the extent that taxes are generated in the abatement area. Pay-as-you-go puts the developer at risk for creating the projected taxable value in the abatement area. To address concerns about potentially using all of the City's abatement capacity on a single project (City's capacity = 10% of the City's net levy), the following parameters have been defined: . Annual abatements to Ryan will not exceed the lesser of the outstanding special assessments against the business park property, or 25% of the City's annual abatement capacity after subtracting the amount granted in previous abatements (Certainteed). City of Shakopee December 5,2003 Page 3 0 The annual abatement is estimated not to exceed 16% of the City's total abatement capacity in any given year. . The analysis assumes the City's levy will grow 3% per year, thereby increasing the City's annual abatement capacity slightly. . The analysis assumes conservative inflationary growth in the project's market value at 3% per year. The following table illustrates that the estimated annual abatements do not cover all the costs of the levied and proposed assessments that are applicable to the business park area. Year Total 51.72% of Total Proposed 51.72% of Proposed Business Taxes Assessment 83/16 is Assessment for' Internal Abatement Park Payable 83/16 Applicable Internal Public Improvements Assessments to the Improvements(1 ) are Applicable Not Paid With Business to the Abatement(2) Park Area Business Park Area 2003 560,186 289,728 0 289,728 2004 541,513 280,071 0 280,071 2005 522,840 270,413 473,000 244,636 0 515,049 2006 504,167 260,755 460,100 237,964 32,367 466,352 2007 485,494 251,098 447,200 231,292 41,043 441,347 2008 466,822 241,440 434,300 224,620 79,443 386,617 2009 448,149 231,783 421 ,400 217,948 87,231 362,499 2010 429,476 222,125 408,500 211,276 89,854 343,547 2011 410,803 212,467 395,600 204,604 116,551 300,520 2012 392,130 202,810 382,700 197,932 120,053 280,689 2013 369,800 191,261 123,661 67,600 2014 356,900 184,589 127,376 57,213 2015 344,000 177,917 131,203 46,714 2016 331,100 171,245 135,145 36,100 2017 318,200 164,573 139,205 25,368 ,2018 305,300 157,901 143,386 14,515 2019 292,400 151,229 147,694 3,536 2020 279,500 144,557 152,130 (7 573) 2021 266,600 137,886 105,981 31,905 2022 253,700 131,214 97,171 34,042 2023 240,800 124,542 42,192 82,350 2024 227,900 117,870 35,052 82,818 2025 36,109 (3) (36,109) Totals 4,761,580 2,462,690 7,009,000 3,625,056 1,982,846 4,104,898 (1) Internal improvements to be completed and proposed to be assessed include Dean Lakes Boulevard, Dean Lakes Trail, and other infrastructure detailed on the attached map. totaling approximately $4 million. This schedule assumes a 6% rate and term of 20 years - past practice has been to limit such assessment terms to 10 years. (2) TOTAL assessments (entire project) not paid for with abatements is equal to approximately $9,787,734. (3) The last abatement in the amount of $36,109 would not be paid under this scenario, because there would be no outstanding assessment in 2025. City of Shakopee December 5,2003 Page 4 Impact The measurement of impact is only hypothetical, because if the abatement is not provided, the project will not proceed as planned. We include the following hypothetical illustration if the project did occur without abatement. . Using current tax classifications and rates, what would be the hypothetical impact on a $300,000 owner-occupied residential property if the project occurred without abatement? 0 Answer: Using a $300,000 owner-occupied residential property, there would hypothetically be a slight annual decrease in City taxes if the project occurred without abatement in the range of $4.66 (lowest abatement amount year 2006) to $22 (highest abatement amount year 2020). Conclusion The following summary projections provide an overview through 2025 of the proposed project in relation to the requested tax abatement: 1) Total taxes paid to City/County/School/Special Taxing Districts $51,268,461* City County SO Commercial/Retail $2,498,338 $2,831,612 $1,826,114 Residential $6,736,821 $7,631,242 $4,921,410 Business Park $7,829,727 $8,874,191 $5,722,993 *Special taxing districts account for approximately $2,396,013 of the total 2) Total taxes paid to City $17,064,886* City Commercial/Retail $2,498,338 Residential $6,736,821 Business Park $7,829,727 * Total taxes paid to City if all business park projects receive TIF is about $13,141,787 3) Tax abatement requested $ 1,982,846 Given that current abatement request is significantly smaller overall than the previous request, and the land cost was only marginally reduced, it is unlikely the project as currently proposed will occur without the requested abatement subsidy. Attachments: Map detailing internal improvements Table depicting values used to calculate taxes City of Shakopee December 5, 2003 Page 5 MARKET VALUES USED TO CALCULATE TAXES Values inflated 3% per year Year Commercial Residential Business Total Project Taxes and Retail Park Market Value Pavable 2003 2004 2005 2006 6,512,000 24,998,305 1,500,000 33,012,311 2007 8,247,360 50,746,559 4,045,000 63,040,926 2008 15,928,781 77,522,346 6,666,350 100,119,485 2009 17,486,644 79,848,016 15,866,341 113,203,010 2010 18,011,244 82,243,457 28,592,331 128,849,042 2011 23,351,581 84,710,761 39,450,101 147,514,454 2012 24,052,128 87,252,083 57,833,604 169,139,827 2013 24,773,692 89,869,646 72,168,612 186,813,963 2014 25,516,903 92,565,735 89,333,670 207,418,322 2015 26,282,410 95,342,707 97,713,680 219,340,812 2016 27,070,882 98,202,988 100,645,091 225,920,977 2017 27,883,009 101,149,078 103,664,443 232,698,547 2018 28,719,499 104,183,550 106,774,377 239,679,444 2019 29,581,084 107,309,057 109,977,608 246,869,768 2020 30,468,517 110,528,329 113,276,936 254,275,802 2021 31,382,572 113,844,179 116,675,244 261,904,016 2022 32,324,049 117,259,504 120,175,502 269,761,077 2023 33,293,771 120,777,289 123,780,767 277,853,850 2024 34,292,584 124,400,608 127,494,190 286,189,406 2025 35,321,361 128,132,626 131,319,015 294,775,027 Projected Tax Abatement Report. Entire Project City of Shakopee . December 2003 Modifications Tax Abatement Projection Dean's Lake Mixed Use Project Scenario CF - 3% MV inflator, 5 Separate Districts Max term, No Residential Abatement P.V. Max Abate P&lon P&lon Annual Less: Retained Times: Total Statutory City. Minus Max %of County 16/83 Internal City Annual Total Fiscal Captured Tax Annual Taxes Tax C'Teed, Tax City Assessment Public Imprv's Abate To Period Net Tax Disp.@ Net Tax Capacity Total Paid to Abatement multiplied Abatement Abatement % Benefit % Benefit 12/01/03 Ending Capacity (1) 29.8026% Capacity Rate Tax City (2) City (3) by 25% City Capacity 51.72% 51.72% 7.00% 1 2 4 5 6 7 8 9 10 11 12 13 14 15 12/31/03 0 0 0 106.978% 0 0 0 0 0 0 289,728 0 0 12/31/04 0 0 0 106.978% 0 0 0 0 0 0 280,071 0 0 12131/05 0 0 0 106.978% 0 0 0 0 0 0 270,413 244,636 0 12/31/06 409.473 47,532 361,941 106.978% 387,197 128,880 628,277 149,763 32,367 5% 260,755 237,964 26.721 12131/07 752,563 73,045 679,518 106.978% 726.935 241,963 647,126 154,475 41,043 6% 251,098 231.292 31,666 12/31/08 1.226,376 134,455 1,091,921 106.978% 1,168.115 388,811 666.539 159.329 79,443 12% 241,440 224,620 57,284 12/31/09 1,464.790 198,578 1.266,212 106.978% 1,354.568 450,873 686.536 164,328 87,231 13% 231,783 217,948 58,765 12/31/10 1,753,756 277.556 1,476,198 106.978% 1,579,207 525.645 707.132 169,477 89,854 13% 222.125 211,276 56,591 12/31/11 2,102,391 374.107 1.728,284 106.978% 1,848,884 615,407 728.346 174.780 116,551 16% 212,467 204,604 68,603 12/31/12 2,509,485 487,858 2,021,627 106.978% 2,162,697 719,861 750,196 187,549 120,053 16% 202.810 197,932 66,042 12/31/13 2.836,793 577 ,603 2.259,190 106.978% 2,416,836 804,452 772,702 193,175 123,661 16% 0 191,261 63.576 12/31/14 3,221,919 684 ,346 2.537,573 106.978% 2.714,645 903.579 795,883 198.971 127,376 16% 0 184,589 61,202 12/31/15 3.432,599 738.858 2.693,741 106.978% 2,881,710 959,187 819,759 204,940 131,203 16% 0 177,917 58,916 12/31/16 3.535,599 761,030 2.774,569 106.978% 2.968.179 987,969 844,352 211,088 135,145 16% 0 171,245 56,716 12/31/17 3.641.690 783.868 2.857,822 106.978% 3,057.241 1.017,613 869,683 217,421 139,205 16% 0 164.573 54,598 12/31/18 3.750.963 807.390 2,943,573 106.978% 3,148.976 1,048,147 895,773 223,943 143,386 16% 0 157,901 52,559 12/31/19 3,863.514 831.619 3,031,895 106.978% 3,243,461 1,079,597 922.646 230,662 147,694 16% 0 151,229 50.596 12131/20 3.979,442 856,574 3,122,868 106.978% 3,340.782 1.111.991 950.326 237,581 152,130 16% 0 144,557 48,707 12/31/21 4.098,848 882,278 3.216,570 106.978% 3,441,022 1.145,356 978,836 244,709 105,981 11% 0 137,886 31,711 12/31/22 4,221,836 906,753 3,313,083 106.978% 3.544,270 1,179,723 1,008,201 252,050 97,171 10% 0 131.214 27.173 12/31/23 4,348,514 936,022 3,412,492 106.978% 3,650,615 1.215,120 1,038,447 259,612 42,192 4% 0 124,542 11,027 12/31/24 4,478.992 964,110 3,514,882 106.978% 3,760,150 1.251,579 1,069,600 267,400 35,052 3% 0 117.870 8,561 12/31/25 4,613,384 993.040 3,620,344 106.978% 3,872,971 1,289,132 1,101,688 275,422 36,109 3% 0 0 8,243 12/31/26 0 0 0 106.978% 0 0 0 0 0 0% 0 0 0 12/31/27 0 0 0 106.978% 0 0 0 0 0 0% 0 0 0 $51,268,461 $17,064,886 $16,882.046 $4,176,674 $1,982,846 $2,462,689 $3,625,055 $899,277 Total PV: $899,277 (1) Assumes market value growth of 3% per year (2) If all future eligible projects receive TIF, the total taxes paid to the City through 2025 would be $13,141,787 (3) Assumes annual City levy growth of 3% Prepared by Springsted, Inc. 12/5/2003 1 Ryan Abatement 15 yr terms Retail Only 12-5-03.x1s Fifth Draft [Q] November 11, 2003 SUMMARY OF ~TERDEVELOPMENTAGREEMENTBETWEEN CITY OF SHAKO PEE AND RYAN COMPANIES US, INC. 1. Platting Ryan Companies US, Inc. (the "Developer") will plat the Property to establish approximately 42 acres of residential lots, 44 acres designated for retail and related commercial uses (the "Commercial Property"), and 90 acres designated for office, warehouse and manufacturing uses (the "Business Park Property"). (Usual and customary provisions regarding the plat, including park dedication and stonnwater matters, will be handled in a separate agreements.) 2. Abatement for Infrastructure in the Business Park A. Generally. The city will approve an abatement on parcels of the Commercial Property, the proceeds of which will be applied: First to pay the balance of outstanding assessments for County Road 83/16 ("Existing Assessments") that are allocated to the Business Park Property; and Second to pay new assessments allocated to the Business Park Property ("New Assessments") for new infrastructure improvements in the Business Park Property. B. Assessment Terms. The Existing Assessments are payable through 2012. The City will levy the New Assessments payable over 20 years, beginning in payable 2005. fu the separate developer's agreement, Developer will waive rights of appeal, etc. regarding New Assessments. C. Abatement Terms. The City will approve abatements for 15 years for each parcel of the Commercial Property. The abatement amount will exclude the fiscal disparities contribution (i.e., fiscal disparities will be paid by the Commercial Property). The first collection of abatement for anyone parcel occurs in the first tax-payable year after construction of commercial improvements on that parcel is completed. The abatements for anyone parcel terminate after the 15th year of collection, or upon payment in full of both the Existing Assessment and the New Assessments allocated to the Business Park Property, whichever occurs first. SJB-238111 v5 SH235-12 D. Limitations. The maximum annual abatement in any year will not exceed the lesser of (1) 25% the City's abatement capacity for that year, or (2) the aggregate installment of Existing Assessments and New Assessments against Business Park Property in that year. If the statute is subsequently amended to increase the City's statutory cap, the percentage of City abatement capacity in clause (1) will be reduced proportionately; and if the statutory cap is reduced, the City abatement capacity in clause (1) will be increased proportionately. (That is, any future changes in statutory capacity will not increase or decrease the maximum abatement committed to Developer under this agreement.) 3. Business Park Development A. Generally. Developer must solicit proposals for development of each parcel in the Business Park Property (referred to as "Individual Improvements"). Unless the proposed mdividual Improvement receives no subsidy, as described in paragraph E below, each Individual Improvement must meet all the following minimum requirements: 1. Each improvement must be used for office, manufacturing, or warehouse and distribution (no retail, except de minimis associated with primary use). 2. The value of improvements must be at least $25 per square foot for manufacturing, warehouse and distribution uses (including related office use); and $45 per square foot for "stand alone" office uses. 3. Each improvement must meet the followingjob and wage criteria: a. If the use is primarily manufacturing, creation of at least 1 FTE job per 1,000 square feet (net of jobs relocated from another location in the City), or retention of at least 1 FTE job per 1,000 square feet if job loss in the City is specific and demonstrable. Average wages of jobs created or retained must meet the minimum requirements of the City's business subsidy policy (which is now 275% of federal minimum wage). b. If the use is primarily office, creation or retention (as described above) of at least 3.5 FTE jobs per 1,000 square feet. Average wages same as above. c. If the use is primarily warehouse/distribution, creation or retention (as described above) of at least .25 FTE jobs per 1,000 square feet. Average wages must be at least $10lhour, excluding benefits (or the wage set by the City's business subsidy policy, if higher). For Individual Improvements approved in 2006 or thereafter, the minimum wage increases each year by the CPI. B. Schedule. The first Individual Improvement must create at least 20,000 square feet of improvements and must be approved by the City and commence construction by December 31, 2008. At least 75% ofthe net land area within the Business Park must fully SJB-238111v5 2 SH235-12 developed by December 31, 2022. A parcel is considered "fully developed" if either (1) Individual Improvements have been substantially completed on the parcel, or (2) the parcel has been conveyed to a third party (unrelated to the Developer) and the City has entered into an mdividual Agreement for that parcel. C. Individual Agreements. The City will review each proposed mdividual Improvement submitted by the Developer or by the end-user who will actually develop the improvement (referred to as the "Individual Developer"). If a proposal meets all the minimum requirements, the City's approval may not be withheld (except that the City retains full discretion regarding additional subsidy, as described in D, below). Upon preliminary approval of a proposal, the City will enter into an mdividual Development Agreement with the Individual Developer. The Developer may be an mdividual Developer, in which case the City will nevertheless enter into a separate mdividual Development Agreement for the relevant Individual Improvement. Each Individual Development Agreement must contain the following provisions: 1. Typical review and approval of construction plans (must be consistent with criteria described above). 2. Required evidence of insurance and financing. 3. Prohibitions on transfer until improvement is complete 4. A minimum market value for the improvement (which must at least meet the requirements described in 3A above). 5. Business subsidy agreement provisions setting forth the amount of the subsidy and related job and wage goals (which must at least meet the requirements described in 3A above). See below for discussion of business subsidy amount. 6. Agreement by mdividual Developer to pay all City out of pocket costs related to the transaction. D. Business Subsidies. The business subsidy for Each Individual Improvement will be as follows: 1. The use of abatement from the Commercial Property to buy down Existing Assessments and New Assessments (as described in Section 2 above) will be considered a business subsidy that benefits the Individual Developer, measured by the amount of abatement allocated to this parcel. Failure to meet the required job and wage goals will require the Individual Developer to repay the abatement assistance provided (and entitle the City to terminate further abatement as to this parcel). 2. If the Developer fails to reach "75% build-out" of the Business Park Property by the required date under Section 3B, the abatement amount allocated to remaining undeveloped parcels under Section 2 will be considered a business subsidy that benefits the Developer. The City may exercise a right to acquire a portion of the SJB-238 II I v5 3 SH235-12 undeveloped Business Park Property under the following terms. The property conveyed must have an estimated market value at least equal to the aggregate abatement assistance allocated to all the undeveloped parcels as of the acquisition. That amount is the purchase price, which will be deemed to have been prepaid. The estimated market value ofthe entire undeveloped property will be determined by the average of three appraisals made by an independent appraiser selected by the City, an independent appraiser selected by the Developer, and an independent appraiser selected by the other two appraisers. The City may then specify the portion of the Business Park Property to be conveyed, which represents the appropriate market value. The Developer will cooperate with the City in any lot division necessary to convey the specified property. Similarly, if no Individual hnprovements are commenced by the required date under Section 3B, the City may acquire a portion of the Business Park Property with an estimated market value equal to the aggregate abatement assistance allocated to the entire Business Park Property as of the date of default, under the same terms as described above. 3. When submitting a proposal for an Individual hnprovement, the Developer or fudividual Developer may request additional financial assistance (above the assistance represented by the abatement/assessment buy-down). That assistance may take the form of City abatement for taxes on the Individual Improvement, or creation of an economic development TIP district for the relevant parcel (s). The proposer must submit a pro forma demonstrating the need for abatement or TIP in the amount requested. The City will negotiate in good faith regarding such assistance, and will evaluate the request in light of the pro forma and compliance with all provisions of the Abatement Act or TIP Act (as the case may be). However, the City Council retains discretion to approve or deny such request on a case-by-case basis. Factors that will weigh in favor of abatement or TIP assistance include: design that exceeds City standards, significant job creation, or creation of wages significantly higher than average for the City. fu all cases, the proposer must demonstrate that but for the assistance, the proposed development would not be feasible without the amount of assistance requested, and that no alternative development would be reasonably expected to occur on this parcel in the reasonably foreseeable future without TIP or abatement assistance that would create a market value increase greater than the proposed market value increase, after subtracting the present value of the proposed assistance. 4. The Individual Developer may, at its option, request abatement assistance from the County for an fudividual hnprovement. If the County approves such assistance, the City will cooperate with the fudividual Developer and the County in implementing the County abatement, including without limitation adding the County as a party to the Individual Development Agreement ifthe parties mutually agree. E. Waiver of Subsidy. If Developer or Individual Developer agrees to accept outstanding assessments on the Business Park Property, waive any right to abatement assistance described in Section 2, and repays to the City any abatement assistance previously allocated to the subject parcel, then the Individual Improvement may be constructed without regard to the criteria described in Section 3, and without an fudividual hnprovement Agreement with the City. SJB-238111 v5 4 SH235-12 4. Miscellaneous The Developer must pay all the City's out of pocket costs in connection with the master development agreement, except for any amounts that mdividual Developers become obligated to pay under any Individual Development Agreement. SJB-238111v5 5 SH235-12 Third Draft November 25, 2003 MASTER DEVELOPMENT AGREEMENT between CITY OF SHAKOPEE, MINNESOTA and and RYAN COMPANIES US, INC. Dated as of: This document was drafted by: KENNEDY & GRAVEN, Chartered 470 Pillsbury Center Minneapolis, Minnesota 55402 Telephone: 337-9300 SJB-239576v2 SH235-12 TABLE OF CONTENTS Page PREAMBLE .................................................................................................................................. .1 ARTICLE I Definitions Section 1.1. Definitions........................................................................................... .....................2 ARTICLE II Representations and Warranties Section 2.1. Representations by the City....................... ......... ................ ..... ............................ ....5 Section 2.2. Representations and Warranties by the Developer ..................................................5 ARTICLE III Property Tax Abatement Section 3.1. Status of Development Property........ .......... ................. ....... ......... ............ ......... ......6 Section 3.2. Abatement for Infrastructure....................................................................................6 Section 3.3. Business Subsidy Agreement................................................................................... 8 Section 3.4. Payment of Administrative Costs ......................... ..................... ...... .... .... ..............10 Section 3.5. Records ............................................................................ ....................... ...............10 ARTICLE IV Construction of Minimum Improvements Section 4.1. Generally... ............................................................................................................ .12 Section 4.2. Criteria for Individual Improvements .......................... ..................................... .....12 Section 4.3. Approval of mdividual Development Agreements.......... .......... .... ....... ................ .13 Section 4.4. Additional Assistance............................................................................ ............... .13 Section 4.5. Waiver Exception.... ... ...... ...... ....... ... ......... ............... ........ ........ ... ..... ......... ...... .......14 Section 4.6. Construction of Individual Improvements ......... ........ ...... ..... ....... ........... .............. .15 Section 4.7. Commencement and Completion of Business Park Development ........................16 Section 4.8. City Option to Acquire Business Park Property Upon Noncompliance with Section 4.7 .... ................................. ...... ................ ........... .....17 ARTICLE V Insurance and Condemnation Section 5.1. Notice of Development ... .................... ................ ........... ................ ...................... ..18 Section 5.2. Abatement Administration.................................................................................... .18 SJB-239576v2 1 SH235-12 ARTICLE VI Taxes~ Minimum Market Value Section 6.1. Insurance.............................................................................................................. ..19 Section 6.2. Subordination........................................................................................................ .19 Section 6.3. Individual Developers............................................................. .............................. .19 ARTICLE VII Financin2 Section 7.1. Generally............................................................................................................... .20 Section 7.2. Modification; Subordination..................................................................................20 ARTICLE VIII Prohibitions A2ainst Assi2nment and Transfer~ Indemnification Section 8.1. Representation as to Development.......... ......... ............. ......... ...... ....... ............. ......21 Section 8.2. Prohibition Against Developer's Transfer of Property and Assignment of Agreement ..... ..... ................... ........... ..................... .................. ......21 Section 8.3. Qualifications........................................................................................................ .22 Section 8.4. Release and Indemnification Covenants ................................ ...... ................ ....... ...22 ARTICLE IX Events of Default Section 9.1. Events of Default Defined ... ........ ........ ...... .................... ..... ..... ........ .... ..................24 Section 9.2. Remedies on Default............................................................................................. .24 Section 9.3. No Remedy Exclusive........................................................................................... .25 Section 9.4. No Additional Waiver Implied by One Waiver ....................................................25 Section 9.5. Attorney Fees........................................................................................................ .25 ARTICLE X Additional Provisions Section 10.1. Conflict ofmterests; Representatives Not mdividually Liable .............................26 Section 10.2. Equal Employment Opportunity......... ............ ..................... ................ .......... ..... ...26 Section 10.3. Covenant to Pay Property Taxes ......... ................... ............... ......... ....... ......... ..... ...26 Section 10.4. Provisions Not Merged With Deed........................................................................26 Section 10.5. Titles of Articles and Sections ...............................................................................26 Section 10.6. Notices and Demands .............. ........ ...... ........................... ....... .......... ............... .....26 Section 10.7. Counterparts.......................................................................................................... .27 Section 10.8. Recording ..... ...... ..... .... ...... ... ........ ........ ............ ...... '" ....... ... .... ..... .... .... ................ ..27 TESTIM ONIUM .......................................................................................................................... .28 SIGNATURES ...... .... ................. ..... ... ................ .... ........ ..... ... ....... .... ......... .... ...... .......... ..... ......... .28 SJB-239576v2 11 SH235-12 SCHEDULE A Development Property SCHEDULE B Master Site Plan SJB-239576v2 111 SH235-12 CONTRACT FOR PRIVATE DEVELOPMENT THIS AGREEMENT is made as of the _ day of ,2003, by and between the CITY OF SHAKOPEE, MINNESOTA, a Minnesota municipal corporation (the "City") and RYAN COMPANIES US, INC., a Minnesota corporation (the "Developer"). RECITALS WHEREAS, pursuant to Minnesota Statutes, Sections 469.1812 to 469.1815 (the "Act") the City is authorized to "abate" property taxes in order to increase or preserve tax base, and provide employment opportunities, and finance or provide public infrastructure; and WHEREAS, the Developer proposes to develop or facilitate development of property in the City described herein as the Development Property; and WHEREAS, pursuant to the Act, the city council of the City has approved a resolution authorizing abatements for a portion of real property taxes on the Development Property in order to defray costs of infrastructure that serve the Development Property; and WHEREAS, the City has determined that the property tax abatement contemplated herein and the fulfillment generally of this Agreement, are in the vital and best interests of the City and the health, safety, morals, and welfare of its residents, and in accord with the public purposes and provisions of the applicable State and local laws and requirements. NOW, THEREFORE, in consideration of the mutual obligations contained in this Agreement, the parties agree as follows: SJB-239576v2 1 SH235-12 ARTICLE I Definitions Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears from the context: "Act" means Minnesota Statutes, Sections 469.1812 to 469.1815, as amended. "Abatement" means the real property taxes (i) generated in any tax-payable year by extending the City's local tax rate against the tax capacity of the Commercial Improvements on each Parcel of the Commercial Property (excluding land and excluding any portion of the tax capacity attributable to the area-wide tax under Minnesota Statutes, Chapter 473F) as of January 2 in the prior year, and (ii) paid to the City by the County. "Abatement Capacity" means the maximum amount of property taxes that may be abated in any year by the City under Section 469.1813, subd. 8 of the Act, as amended. As of the date of this Agreement, the Abatement Capacity is the greater of 10 % of the City's current levy or $200,000. "Abatement Resolution" means Resolution No. , approved by the City Council of the City on December 9, 2003 regarding the Abatement of property taxes on the Commercial Property. "Affiliate" means with respect to the Developer (a) any corporation, partnership, limited liability company or other business entity or person controlling, controlled by or under common control with the Developer, and (b) any successor to such party by merger, acquisition, reorganization or similar transaction involving all or substantially all of the assets of such party (or such Affiliate). For the purpose hereof the words "controIIing", "controlled by" and "under common control with" shall mean, with respect to any corporation, partnership, limited liability company or other business entity, the ownership of fifty percent or more of the voting interests in such entity possession, directly or indirectly, of the power to direct or cause the direction of management policies of such entity, whether ownership of voting securities or by contract or otherwise. "Agreement" means this Agreement, as the same may be from time to time modified, amended, or supplemented. "Benefit Date" means the earlier of (a) the date each mdividual Improvement is substantially completed, or (b) a business occupies that Individual Improvement. "Business Day" means any day except a Saturday, Sunday, legal holiday, a day on which the City or County is closed for business, or a day on which banking institutions in the City are authorized by law or executive order to close. "Business Park Property" means SJB-239576v2 2 SH235-12 "Business Subsidy Act" means Minnesota Statues, Sections 116J.993 to 116J.995, as amended. "Certainteed Abatement" means the abatements payable by the City under the Contract for Private Development between the City and Certainteed, Inc. dated April 2, 2002. "City" means the City of Shakopee, Minnesota. "City Representative" means the City Administrator, or other City official or staff so designated in writing by the City Administrator. "Certificate of Completion" means the certification provided to an mdividual Developer, pursuant to Section 4.6 of this Agreement and any Individual Development Agreement. "Commercial Improvements" means any improvements constructed upon a Parcel within the Commercial Property. "Commercial Property" means "Construction Plans" means the plans, specifications, drawings and related documents on the construction work to be performed by the mdividual Developer on a Parcel of the Business Park Property, including the Individual Improvements and the related site improvements, which (a) shall be as detailed as the plans, specifications, drawings and related documents which are submitted to the appropriate building officials of the City, and (b) shall include at least the following: (1) site plan; (2) foundation plan; (3) floor plan for each floor; (4) cross sections of each (length and width); (5) elevations (all sides); (6) landscape plan; and (7) such other plans or supplements to the foregoing plans as the City may reasonably request to allow it to ascertain the nature and quality ofthe proposed construction work. "County" means the County of Scott, Minnesota. "Developer" means Ryan Companies US, me., or its permitted successors and assigns. "Development Property" means the real property described in Schedule A of this Agreement, and includes the Commercial Property, the Business Park Property and the Residential Property. "Event of Default" means an action by the Developer listed in Article IX of this Agreement. "Holder" means the owner of a Mortgage. "Individual Developer" means any party who proposes to construct mdividual Improvements on a Parcel of the Business Park Property and enter into an Individual Development Agreement with the City. The Developer may be an mdividual Developer. "Individual Development Agreement" means a development agreement entered into between the City and an Individual Developer regarding a Parcel of the Business Park Property. SJB-239576v2 3 SH235-12 "mdividual Improvements" means any improvement constructed on a parcel of the Business Park Property in accordance with Article Ill. "Master Site Plan" means the plan for development of the Development Property, attached as Schedule B. "Maturity Date" means the date that the Abatements under Section 3.2 have been paid in full or terminated, whichever is earlier. "Mortgage" means any mortgage made by the Developer which is secured, in whole or in part, with the Development Property or any portion thereof. "Parcel" means any separate tax parcel on which Commercial Improvements are constructed (in the case of the Commercial Property) or mdividual Improvements are constructed (in the case of Business Park Property). "Residential Property" means "State" means the State of Minnesota. "Tax Official" means any County assessor; County auditor; County or State board of equalization, the commissioner of revenue of the State, or any State or federal district court, the tax court of the State, or the State Supreme Court. "Transfer" has the meaning set forth in Section 8.2(a) hereof. "Unavoidable Delays" means delays beyond the reasonable control of the party seeking to be excused as a result thereof which are the direct result of strikes, other labor troubles, prolonged adverse weather or acts of God, fire or other casualty to the Individual Improvements, litigation commenced by third parties which, by injunction or other similar judicial action, directly results in delays, or acts of any federal, state or local governmental unit (other than the City in exercising their rights under this Agreement) which directly result in delays. Unavoidable Delays shall not include delays (except those attributable to government-imposed moratoria) in the obtaining of pennits or governmental approvals necessary to enable construction of the Individual Improvements by the dates such construction is required under Section 4.7 of this Agreement. SJB-239576v2 4 SH235-12 ARTICLE II Representations and Warranties Section 2.1. Representations by the City. The City makes the following representations and warranties as the basis for its covenants herein: (a) The City is a statutory city duly organized and existing under the laws of the State. Under the provisions of the Act, the City has the power to enter into this Agreement and carry out its obligations hereunder. (b) The City proposes to grant the Abatement described in this Agreement for the purposes of financing public infrastructure, increasing the tax base and creating employment opportunities on the Business Park Property. Section 2.2. Representations and Warranties by the Developer. The Developer makes the following representations and warranties as the basis for its covenants herein: (a) The Developer is a corporation, duly organized and in good standing under the laws of the State, is not in violation of any provisions of its articles of incorporation and bylaws, is duly authorized to transact business within the State, has power to enter into this Agreement and has duly authorized the execution, delivery and performance of this Agreement by proper action of its officers. (b) The Developer has received no notice or communication from any local, state or federal official that the activities of the Developer may be or will be in violation of any environmental law or regulation (other than those notices or communications of which the City is aware). The Developer is aware of no facts the existence of which would cause it to be in violation of or give any person a valid claim under any local, state or federal environmental law, regulation or review procedure. (c) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of, the terms, conditions or provisions of any corporate restriction or any evidences of indebtedness, agreement or instrument of whatever nature to which the Developer is now a party or by which it is bound, or constitutes a default under any of the foregoing, which default or breach might prevent the Developer from performing its obligations under this Agreement. (d) The Developer shall promptly advise the City in writing of all litigation or claims affecting any part of the Development Property and all written complaints and charges made by any governmental authority materially affecting the Development Property or materially affecting Developer or its business which may delay or require changes in construction of the improvements thereon. (e) The Developer is not in default under any business subsidy agreement pursuant to Minnesota Statutes Section 116J.994. SJB-239576v2 5 SH235-12 ARTICLE III Property Tax Abatement for Infrastructure Section 3.1. Status of Development Property. (a) The Developer has entered enter into a purchase agreement to acquire fee title to the Development Property. The City has no obligation to acquire the Development Property or any portion thereof. (b) The Developer shall prepare and seek City approval of a planned unit development ("PUD") and plat of the Development Property (the "Plat") at Developer's cost and subject to all City ordinances and procedures. The plat and PUD must be consistent with the Master Site Plan, provided that nothing in this Agreement is intended to limit the City's authority in reviewing the PUD and plat, or to preclude revisions requested or required by the City. The parties acknowledge that Developer has submitted a preliminary Plat as of the date of this Agreement. Approximately 42 acres of the Plat and PUD must be designated for residential lots (the "Residential Property), approximately 36 acres (the "Commercial Property") must be designated for development of the Commercial Improvements, and approximately 90 acres (the "Business Park Property") must be designated for development of the Individual Improvements. (c) In connection with the Plat and PUD, the parties agree and understand that the Developer and City will enter into the following related agreements with Developer: (i) a planned development agreement (the "PUD Agreement") that addresses the overall PUD requirements for the entire Development Property, including any related open space easements or restrictive covenants or declarations, and (ii) a developers' agreement (the "Developer's Agreement") that addresses construction of infrastructure for each phase of development of the Development Property. Section 3.2. Abatement for mfrastructure. (a) Generally_ The Business Park Property is currently encumbered, and will be additionally encumbered, with special assessments for various infrastructure improvements. The City has determined that, in order to facilitate development of the Business Park Property, the City will retain Abatements from the Commercial Property pursuant to the Act, and will apply those Abatements to pay a portion of assessments for infrastructure levied or to be levied against the Business Park Property, all as described in more detail in this Section and in the Abatement Resolution. (b) Existing Assessments. Prior to the date of this Agreement, the City has levied special assessments against the Development Property to finance improvements to County Roads 83 and 16 adjacent to the Development Property (the "Existing Assessments"). Such assessments were levied in the aggregate principal amount of $ payable in annual installments through 2012. Upon or after filing of the Plat, the City will allocate the Existing Assessments against the various portions of the Plat, including the Business Park Property, in accordance with City ordinances and procedures. (c) New Assessments. In connection with the development described in this Agreement, the City will construct additional infrastructure improvements within the Development Property, including roads, sewer, water and storm water improvements. The City will assess the cost of such improvements against the various portions of the Plat (the "New SJB-239576v2 6 SH235-12 Assessments"), including the Business Park Property, in accordance with the Developer's Agreement and City ordinances and procedures. The New Assessments will be payable in annual installments over 20 years with interest determined by the City in accordance with its usual and customary procedures and policies, beginning with taxes payable in 2005. (d) Terms of Abatement. The City will retain Abatements from each Parcel of the Commercial Property in accordance with Article V of this Agreement and the Abatement Resolution. The term of the Abatement for each Parcel is 15 years, commencing with the first tax-payable year after substantial completion of Commercial Improvements on that Parcel. The Abatements for each Parcel terminate on the earlier of (i) the date all Existing Assessments and New Assessments against the entire Business Park Property have been paid in full, or (ii) after the 15th year of collection of Abatements from that Parcel. (e) Application of Abatements. The City will receive Abatements semi-annually from the County along with the property tax settlement, and will apply such amounts as follows: First, to pay the next installment of principal and interest on the Existing Assessments against the Business Park Property; and Second, to pay the next installment of principal and interest on the New Assessments against the Business Park Property. Abatements will be applied pro rata to the outstanding Existing Assessments or New Assessment (as the case may be) against each Parcel of the Business Park Property. As soon as reasonably practicable after each semi-annual tax settlement date, the City will calculate the total Abatements from all Parcels of the Commercial Property, and will allocate the amount to be applied toward Existing or New Assessments against each Parcel of the Business Park Property. The City will pay the Abatements to the County on or before the next property tax payment date (May 15 or October 15, as the case may be), and will specify to the County the amounts allocated toward the assessments against each Parcel. At least 30 days before such property tax payment date, the City will send the owner of each Parcel (the Developer or an mdividual Developer, as the case may be) a written notice specifying the Abatement amounts to be paid by the City for that Parcel and the balance to be paid by the owner. Notwithstanding such notice requirement, the owner of each Parcel, its successors or assigns remains obligated to pay the full installment of Existing and New Assessments due on any tax payment date unless and until the owner receives actual notice of the portion paid by the City under this Section. (f) Limitations. The maximum Abatement applied toward Existing or New Assessments in any calendar year will not exceed the lesser of (i) 25% of the amount equal to City's Abatement Capacity for that year less the Certainteed Abatement for that year, or (ii) the aggregate installment of Existing Assessments and New Assessments against the entire Business Park Property due in that year. If the Act is amended to increase the City's Abatement Capacity, the percentage of Abatement Capacity in clause (i) will be reduced proportionately, and if the Act is amended to reduce the City's Abatement Capacity, the percentage of Abatement Capacity in clause (i) will be increased proportionately. The City's obligation under this section is payable solely from and to the extent of the Abatements, and nothing herein shall be construed to obligate the City to make payments from any other funds. The City makes no warranties or representations as to the amount of the Abatements, or that amounts payable under this Section SJB-239576v2 7 SH235-12 will be sufficient to pay all or any portion of the Existing Assessments or New Assessments against any portion of the Business Park Property. Any estimates of Abatement amounts prepared by the City's financial consultants are for reference only, and neither the Developer nor any mdividual Developer is entitled to rely on such estimates. The City represents that there are no outstanding abatement agreements or resolutions granted by the City under the Act as of the date of this Agreement except the Certainteed Abatement. The City may grant any other abatements permitted under the Act, provided that to the extent the total abatements in any year exceed the maximum annual Abatement under this Agreement, the allocation of City Abatement Capacity to such other abatements is subordinate to the Abatements under this Agreement. Section 3.3. Business Subsidy Agreement. The provisions of this Section constitute the "business subsidy agreement" in connection with the business subsidy provided by the City for the purposes ofthe Business Subsidy Act. (a) General Terms. The parties agree and represent to each other as follows: (1) The subsidy provided under this Agreement consists of the City's payment of Abatements toward special assessments against the Business Park Property under Section 3.2, which payments represent a forgivable loan that is repayable in accordance with this Section. No portion of the business subsidy is tax increment financing. The parties also agree and understand that when each Parcel of the Business Park Property is developed, the assistance under this Agreement will constitute a business subsidy benefiting that mdividual Developer. The provisions of this Section 3.3 will be incorporated in each mdividual Development Agreement. Further, failure by the Developer to secure timely development of the Business Park Property will result in treatment of some Abatements as a subsidy that benefits Developer, as further described in paragraph (d) below. (2) The public purposes of the subsidy are to provide employment opportunities, increase the tax base of the City and the State, and finance public infrastructure. (3) The goals for the subsidy are: to secure development of the Business Park Property; to maintain mdividual hnprovements constructed thereon as manufacturing, warehouse or office facilities for at least five years as described in clause (6) below; and to create the jobs and wage levels in accordance with Section 3.3(b) hereof. (4) If the goals described in clause (3) are not met, the Individual Developer must reimburse the City as described in Section 3.3(c), and/or the Developer must reimburse the City as described in Section 3.3(d). (5) The subsidy is needed to defray extraordinary infrastructure costs and therefore induce the development of the Business Park Property. Absent the subsidy provided in this Agreement, the City believes that the Development Property would not be developed at the level of intensity and quality proposed under this Agreement. (6) Each Individual Developer must continue operation of the Individual hnprovements for at least five years after the date of issuance .of the Certificate of SJB-239576v2 8 SH235-12 Completion. For the purpose ofthis Section, Individual Improvements will be considered to be in "operation" if they are occupied by the mdividual Developer, its successor or assigns (including a tenant) for use in a private trade or business consisting of manufacturing, warehouse, distribution or office. After the five-year period, Individual Developer remains obligated to operate and maintain the mdividual Improvements through the Maturity Date, provided that the remedy described in Section 3.3 (c) will not apply. (7) The Developer does not have a parent corporation. Each mdividual Developer must describe any parent corporation. (8) The Developer has not received, and does not expect to receive financial assistance from any other "grantor" as defined in the Business Subsidy Act, in connection with the Development Property. As described in Article ill, the Developer or an mdividual Developer may seek additional assistance for Individual Improvements on the Business Park Property, in which event the City or EDA will enter to separate business subsidy agreements regarding such assistance. (b) Job and Wage Goals. Within two years after the Benefit Date for each Parcel of the Business Park Property (the "Compliance Date"), each Individual Developer shall meet the job and wage goals for that mdividual Improvement as described in Section 4.2(c), or any higher goals that may be set forth in the Individual Development Agreement. Notwithstanding anything to the contrary herein, if the wage and job goals described in this paragraph are met by the Compliance Date, those goals are deemed satisfied despite the mdividual Developer's continuing obligations under Sections 3.3(a)(6) and 3.3(e). The City may, after public hearings held by the City council and approval that body, extend the Compliance Date by up to one year, provided that nothing in this section will be construed to limit the City's legislative discretion regarding this matter. (c) Remedies-Individual Developer. If an Individual Developer fails to meet the goals described in Section 3.3(a)(3), the mdividual Development Agreement will be deemed terminated, and the Developer shall repay to the City upon written demand from the City a "pro rata share" of all prior payments of Abatements toward assessments against that Parcel, together with interest on such amounts at the implicit price deflator for government consumption expenditures and gross investment for state and local governments prepared by the Bureau of Economic Analysis of the United States Department of Commerce for the 12-month period ending March 31 of the previous year, accrued from the Benefit Date for the mdividual Improvements. The term "pro rata share" means percentages calculated as follows: (i) if the failure relates to the number of jobs, the jobs required less the jobs created, divided by the jobs required; (ii) if the failure relates to wages, the number of jobs required less the number of jobs that meet the required wages, divided by the number of jobs required; (iii) if the failure relates to maintenance of the facility in accordance with Section 3.3(a)(6), 60 less the number of months of operation (where any month in which the facility is in operation for at least 15 days constitutes a month of operation), commencing SJB-239576v2 9 SH235-12 on the date of the Benefit Date and ending with the date the facility ceases operation as determined by the City, divided by 60; and (iv) if more than one of clauses (i) through (iii) apply, the sum of the applicable percentages, not to exceed 100%. Nothing in this Section shall be construed to limit the City's remedies under Article IX hereof. (d) Remedies-Developer. If the Developer fails to timely commence or substantially complete development of the Business Park Property within the meaning of Section 4.7, such events will be considered failure to meet business subsidy goals as to those undeveloped Parcels, and the aggregate Abatements paid for assessments to date against those underdeveloped Parcels will be considered a business subsidy that benefits the Developer. The Developer shall reimburse the City through conveyance of undeveloped Parcels in accordance with Section 4.8, which the parties agree and understand represents reimbursement of the business subsidy benefiting the Developer. (e) Reports. The Developer (and each mdividual Developer, as to each Individual Improvement) must submit to the City a written report regarding business subsidy goals and results by no later than March 1 of each year, commencing March 1, 2005 and continuing until the later of (i) the date the goals stated in Section 3.3(a)(3) are met; (ii) 30 days after expiration ofthe five-year period described in Section 3.3(a)(6); or (iii) ifthe goals are not met, the date the subsidy is repaid in accordance with Section 3.3(c) and 3.3(d). The report must comply with Section 116J.994, subdivision 7 of the Business Subsidy Act. The City will provide information to the Developer regarding the required forms. If the Developer or any Individual Developer fails to timely file any report required under this Section, the City will mail the Developer or Individual Developer, as he case may be, a warning within one week after the required filing date. If, after 14 days of the postmarked date of the warning, the Developer or mdividual Developer fails to provide a report, the Developer or mdividual Developer (as the case may be) must pay to the City a penalty of $100 for each subsequent day until the report is filed. The maximum aggregate penalty payable by any mdividual Developer under this Section $1,000. (f) Waiver of Subsidy. Notwithstanding anything to the contrary herein, if an Individual Developer or the Developer waives all Abatement assistance as described in Section 4.5, neither Developer nor that Individual Developer will be considered a recipient of a business subsidy as to that Parcel. Nothing in this Section or Section 4.4 will relieve the Developer's continuing obligations under Section 3.3(d) and Section 4.8 Section 3.4. Payment of Administrative Costs. The Developer will pay to the City all out of pocket costs incurred by the City (including without limitation attorney and fiscal consultant fees) in the negotiation and preparation of this Agreement and other documents and agreements in connection with the development contemplated hereunder (collectively, the "Administrative Costs"). Administrative Costs shall be evidenced by invoices, statements or other reasonable written evidence of the costs incurred by the City. The Developer shall pay Administrative Costs from time to time within 30 days after receipt of written notice thereof from the City. SJB-239576v2 10 SH235-12 Section 3.5. Records. The City and its representatives shall have the right at all reasonable times after reasonable notice to inspect, examine and copy all books and records of Developer relating to the development described in this Agreement. Developer shall also use its best efforts to cause the contractor or contractors, all sub-contractors and their agents and lenders to make their books and records relating to the Business Park Property available to City, upon reasonable notice, for inspection, examination and audit. Such records shall be kept and maintained by Developer until the Maturity Date. SJB-239576v2 11 SH235-12 ARTICLE IV Development of Business Park Section 4.1 Generally. The Developer must replat or otherwise subdivide the Business Park Property in accordance with the PUD Agreement, the Developer's Agreement and City ordinances, from time to time as needed to develop that property. The Developer must solicit proposals for development of each Parcel of the Business Park Property by Individual Developers. Section 4.2. Criteria for Individual hnprovements. Before commencing construction of improvements on any Parcel of the Business Park Property (except as provided in Section 4.5 hereof), the Individual Developer must submit to the City Representative a written proposal for the Individual hnprovements on that parcel. Each h1dividual Improvement must meet all of the following minimum criteria: (a) The Individual Improvement must be used for manufacturing, warehouse and distribution or office use. No retail use is permitted except de minimis amounts directly related to the primary use (such as a manufacturing showroom). (b) The estimated market value of h1dividual Improvements for property tax purposes must be at least $25 per square foot for manufacturing, warehouse and distribution uses (including related office use); and $45 per square foot for "stand alone" office uses. These minimum values per square foot are effective for any Individual Improvement commenced in 2004. For h1dividual Improvements commenced in any subsequent calendar year, the minimum values must be increased annually based on [an index to be determined). (c) Each Individual Improvement must meet the following job and wage criteria: (i) If the use is primarily manufacturing, creation of at least 1 full-time equivalent job per 1,000 square feet (net of jobs relocated from another location in the City), or retention of at least 1 full-time equivalent job per 1,000 square feet if job loss in the City is specific and demonstrable. The average wages of jobs created or retained must meet the minimum requirements of the City's business subsidy policy in effect as of the date of approval of the Individual hnprovement. As of the date of this Agreement, the minimum wage is 275% ofthe federal minimum wage. (ii) If the use is primarily office, creation or retention (as described above) of at least 3.5 full-time equivalent jobs per 1,000 square feet, with average wages as described in clause (i). (iii) If the use is primarily warehouse or distribution, creation or retention (as described above) of at least .25 full-time equivalent jobs per 1,000 square feet. The average wages must be at least $1 O/hour, excluding benefits (or the wage set by the City's business subsidy policy in effect at the time of approval, if higher). For illdividual hnprovements approved in 2006 or SJB-239576v2 12 SH235-12 thereafter, the minimum wage increases each year by the consumer price index. (That is, the minimum wage will be fixed at the time of approval of any h1dividual Improvement, but the fixed minimum will depend on the year of approval after 2006.) Section 4.3. Approval of h1dividual Development Agreements. (a) Within 60 days after receipt of a proposed h1dividual Improvement, the City Representative will notifY the h1dividual Developer in writing whether the proposal is preliminarily approved or rejected (and if rejected, will state the reasons). If a proposal meets the minimum requirements described in Section 4.2, the City Representative's approval may not be withheld. (b) As soon as reasonably practicable after preliminary approval of an h1dividual Improvement, the City and h1dividual Developer will negotiate an h1dividual Development Agreement that must contain at least the following provisions: 1. The provisions of Section 4.6 hereof regarding construction of the Individual Improvements. 2. A schedule for commencement and completion of the h1dividual Improvements. 3. Substantially the terms of Article VII of this Agreement regarding financing and commercially customary construction and liability insurance. 4. Prohibition on transfer of the Parcel or the h1dividual Developer's rights under the Individual Development Agreement until completion of the Individual Improvements, and indemnification provisions (both substantially the same as the terms described in Article VITI ofthis Agreement). 5. A minimum market value for the h1dividual Improvement (which must meet the requirements described in Section 4.2). 6. A covenant to pay property taxes and assessment on the Parcel (except to the extent assessments are paid by the Abatements). 7. Abatement and business subsidy provisions that substantially incorporate Sections 3.2 and 3.3 ofthis Agreement, as applied to that Parcel. Such provisions must set forth the amount of the Abatement subsidy allocated to that Parcel and related job and wage goals (which must meet the requirements described in Section 4.2(c). 8. Reporting and cost provisions that substantially incorporate Sections 3.4 and 3.5 of this Agreement, as applied to that Parcel. The City will enter into an h1dividual Development Agreement that complies with the terms of this Section any other terms reasonably required by the City upon approval thereof by the City Council. Section 4.4. Additional Assistance. (a) The City acknowledges, based on review of Developer's SJB-239576v2 13 SH235-12 pro forma submitted before City approval of this Agreement, that the Abatement assistance under Section 3.2 may be insufficient to stimulate development ofthe Business Park Property. fu order to permit sale of Business Park Property to Individual Developers at a commercially reasonable price, the Developer or fudividual Developer may request additional financial assistance in the form of abatement of City taxes on the fudividual Improvements under the Act, or creation of an economic development tax increment financing ("TIP") district for the relevant Parcel(s). When submitting a proposed Individual Improvement, the Individual Developer may request such additional financial assistance under the terms and conditions of this Section. (b) The Individual Developer must submit a pro forma demonstrating the need for abatement or TIP in the amount requested. The City will negotiate in good faith regarding such assistance, and will evaluate the request in light of the pro forma and compliance with all provisions of the Act or Minnesota Statutes, Sections 469.174 to 469.179 (the "TIP Act"), as the case may be. Even though the City Council retains discretion to approve or deny such request on a case-by-case basis, factors that will weigh heavily in favor of abatement or TIP assistance include: 1) site design and landscaping that exceeds City standards; 2) significant job creation; 3) creation of wages significantly higher than average for the City; 4) enhanced building design, internal finish, and exterior materials; or 5) high potential for expansion of the business operation. In each case, the fudividual Developer must demonstrate that but for the assistance, the proposed development would not be feasible without the amount of assistance requested, and that no alternative development would be reasonably expected to occur on this Parcel in the reasonably foreseeable future without TIP or abatement assistance that would create a market value increase greater than the proposed market value increase, after subtracting the present value of the proposed assistance. The parties agree and understand that if TIP assistance is provided, the TIP district may be established by the Shakopee Economic Development Authority ("EDA"). (c) If the City approves additional abatement or TIP assistance, the terms and conditions of such assistance will be included in the Individual Development Agreement described in Section 4.3, supplemented by any provisions reasonably required by the City or EDA in connection with the additional assistance. The parties acknowledge that any additional assistance will constitute an additional business subsidy, requiring business subsidy agreement provisions in addition to those described in Section 3.3. (d) The fudividual Developer may, at its option, request abatement assistance from the County for an fudividual Improvement. If the County approves such assistance, the City will cooperate with the fudividual Developer and the County in implementing the County abatement, including without limitation adding the County as a party to the fudividual Development Agreement if the parties mutually agree. (e) As soon as reasonably practicable after the date of this Agreement, the City or EDA (or those two entities working together) will establish a "project" within the meaning ofthe TIP Act, whose boundaries include the Business Park Property. Nothing in this paragraph will be construed to require the City or EDA to establish any TIP district within that project. Section 4.5. Waiver Exception. Notwithstanding anything to the contrary herein, if an Individual Developer SJB-239576v2 14 SH235-12 (a) agrees in writing to assume all outstanding Existing Assessments and New Assessments on any Parcel of Business Park Property, (b) waives in writing any right to City payment of Abatements under Section 3.2, and (c) before commencement of construction on a Parcel, repays to the City any Abatements previously paid by the City for assessments against a Parcel under Section 3.2 together with interest from the date of each payment at the rate described in Section 3.3(c). then that Individual Improvement may be constructed without regard to the criteria described in Section 4.2 and without an h1dividual Development Agreement under Section 4.3. At any time after entering into an h1dividual Development agreement, an Individual Developer may also terminate that Agreement by complying with the provisions of this Section (in which case the Individual Developer must repay to the City all prior Abatements paid by the City for assessments against that Parcel with interest as described in clause (c) above, whether payments were made before or after the date of the h1dividual Development Agreement). The provisions of this Section will be incorporated in each h1dividual Development Agreement. Section 4.6. Construction of Individual Improvements. (a) Generally. Each h1dividual Developer agrees that it will construct the Individual Improvements on the subject Parcel in accordance with the approved Construction Plans and at all times prior to the Maturity Date for the abatements attributable to the subject Parcel will operate and maintain, preserve and keep or cause such improvements to be maintained, preserved and kept with the appurtenances and every part and parcel thereof, in good repair and condition. The City shall have no obligation to operate or maintain the h1dividual Improvements. (b) Construction Plans. Before commencement of construction of the h1dividual Improvements, the Individual Developer shall submit to the City the Construction Plans. The Construction Plans shall provide for the construction of the Individual Improvements and shall be in conformity with this Agreement, the PUD Agreement, the Developer's Agreement and all applicable State and local laws and regulations. The City will approve the Construction Plans in writing if: (i) the Construction Plans conform to the terms and conditions of this Agreement; (ii) the Construction Plans conform to all applicable federal, state and local laws, ordinances, rules and regulations; (iii) the Construction Plans are adequate to provide for construction of the Individual Improvements; (iv) the Construction Plans do not provide for expenditures in excess of the funds available to the Developer from all sources for construction of the h1dividual Improvements; and (v) no Event ofDefauIt has occurred. Approval may be based upon a review by the City's Building Official of the Construction Plans. No approval by the City shall relieve the h1dividual Developer of the obligation to comply with the terms of this Agreement, applicable federal, state and local laws, ordinances, rules and regulations, or to construct the Individual Improvements in accordance therewith. No approval by the City shall constitute a waiver of an Event of Default. If approval of the Construction Plans is requested by the h1dividual Developer in writing at the time of submission, such Construction Plans shall be deemed approved unless rejected in writing by the City, in SJB-239576v2 15 SH235-12 whole or in part. Such rejections shall set forth in detail the reasons therefore, and shall be made within 20 days after the date of their receipt by the City. If the City rejects any Construction Plans in whole or in part, the h1dividual Developer shall submit new or corrected Construction Plans within 20 days after its receipt of written notification to the Individual 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. The City's approval shall not be unreasonably withheld. Said approval shall constitute a conclusive determination that the Construction Plans (and the Individual Improvements constructed in accordance with said plans) comply to the City's satisfaction with the provisions of this Agreement relating thereto. If the h1dividual Developer desires to make any change in the Construction Plans after their approval by the City, the Individual Developer shall submit the proposed change to the City for its approval. If the Construction Plans, as modified by the proposed change. conform to the requirements of this Section 4.2 of this Agreement with respect to such previously approved Construction Plans, the City shall approve the proposed change and notify the Individual Developer in writing of its approvaL Such change in the Construction Plans shall, in any event, be deemed approved by the City unless rejected, in whole or in part. by written notice by the City to the Individual Developer, setting forth in detail the reasons therefor. Such rejection shall be made within 20 days after receipt of the notice of such change. The City's approval of any such change in the Construction Plans will not be unreasonably withheld. (c) Certificate of Completion. Promptly after completion of the Individual Improvements in accordance with those provisions of the Agreement relating solely to the obligations of the h1dividual Developer to construct the h1dividual Improvements (including the dates for beginning and completion thereof), the City will furnish the h1dividual Developer with a Certificate in a form reasonable satisfactory to Individual Developer. Such certification and such determination shall not constitute evidence of compliance with or satisfaction of any obligation of the Individual Developer to any Holder of a Mortgage, or any insurer of a Mortgage, securing money loaned to finance the Individual Improvements, or any part thereof. If the City shall refuse or fail to provide any certification in accordance with the provisions of this Section 4.5 of this Agreement, the City shall, within thirty (30) days after written request by the h1dividual Developer, provide the Individual Developer with a written statement, indicating in adequate detail in what respects the h1dividual Developer has failed to complete the Individual Improvements in accordance with the provisions of the Agreement, or is otherwise in default, and what measures or acts it will be necessary, in the reasonable opinion of the City, for the Individual Developer to take or perform in order to obtain such certification. The construction of the h1dividual Improvements shall be deemed to be complete upon issuance of a certificate of occupancy by the City. Section 4.7. Commencement and Completion of Business Park Development. (a) Subject to Unavoidable Delays, the Developer must cause an Individual Developer to commence construction of Individual Improvements containing at least 20,000 square feet by December 31, 2008. SJB-239576v2 16 SH235-12 (b) Subject to Unavoidable Delays, the Developer must cause Parcels consisting of at least 75 percent of the land area within the Business Park Property (net of rights of way, conservation easement areas, parks, trails, and other publicly dedicated land) to be "fully developed" by December 31, 2022. A Parcel is considered "fully developed" if either (i) h1dividual Improvements have been substantially completed on the Parcel, or (ii) the Parcel has been conveyed to an Individual Developer who is a third party (not the Developer or an Affiliate of Developer), and the City has entered into an h1dividual Development Agreement for that Parcel or the h1dividual Developer has met all the waiver conditions under Section 4.5. (c) The Developer agrees for itself, its successors and assigns, and every successor in interest to the Business Park Property, or any part thereof, that the Developer, and such successors and assigns, shall promptly begin and diligently prosecute to completion the development of the Business Park Property, and that such development shall in any event be commenced and completed within the period specified in this Section 4.7 of this Agreement. After the date of this Agreement and development of the Business Park Property has been commenced, the Developer shall make reports, in such detail and at such times as may reasonably be requested by the City, as to the actual progress of the Developer with respect to such development. Section 4.8. Citv Option to Acquire Business Park Property Upon Noncompliance with Section 4.7. Developer grants to the City an option to acquire portions of the Business Park Property upon the following terms and conditions: (a) The City's option may be exercised only if the Developer fails to timely meet the requirements of either Section 4.7(a) or 4. 7(b). hereof. (b) Under either such event, the City may deliver to Developer a written notice of intent to exercise its option to acquire a portion of the Business Park Property with an estimated market value at least equal to the aggregate Abatement assistance paid with respect to all Parcels that remain undeveloped as of the date of the City's notice (referred to as the "Past Abatement Amount"). The Past Abatement Amount is the purchase price for acquisition of the property to be acquired, which is deemed to have been prepaid by the City. (c) The estimated market value of the undeveloped Parcels will be determined by the average of three appraisals made by an independent appraiser selected by the City, and independent appraiser selected by the Developer, and an independent appraiser selected by the other two appraisers. The City may then specify the portions of the undeveloped Business Park Property to be conveyed, representing the appropriate market value. (d) The Developer will (i) cooperate with the City in any subdivision necessary to convey the specified property, (ii) allow the City access to the property to conduct any analysis of soils or environmental conditions, (iii) convey marketable title to the specified property by warranty deed, and (iv) pay all costs ofthe City in connection exercise of its option, including without limitation all appraisal, title examination, attorney and recording fees, state deed tax, and costs to cure any title objections raised by the City. If the City raises environmental objections, the Developer may require the City to select alternative property with comparable estimated market value, provided that Developer must pay any additional appraisal, title and subdivision costs in connection with such alternate property. If the City raises environmental objections regarding the first alternate property SJB-239576v2 17 SH235-J2 offered by Developer, Developer must pay all costs to cure such environmental objections. The closing on conveyance shall occur within 60 days after receipt of the last of the three appraisals, or such other date as the parties mutually agree. SJB-239576v2 18 SH235-12 ARTICLE V Commercial Improvements Section 5.1. Notice of Development. At least 30 days before conveyance of any Parcel of the Commercial Property to the developer of Commercial Improvements, the Developer shall provide written notice to the City describing: (a) The name of the buyer/developer; (b) The legal description ofthe Parcel, and tax identification number if available; (c) The general type and size ofthe proposed Commercial Improvements; (d) The expected date for commencement and completion of construction of the Commercial Improvements. (e) The estimated market value and tax capacity of the Commercial Improvements upon substantial completion, and the estimated amount of Abatement from those improvements in the first tax-payable year after substantial completion. If the Developer directly constructs any Commercial Improvements, the Developer shall provide the notice described in this Section at least 30 days before commencing construction of those improvements. Section 5.2. Abatement Administration. (a) The parties agree and understand that the City will commence the Abatement from each Parcel of Commercial Property in the first tax- payable year after substantial completion of the Commercial Improvements on that Parcel. The City will add to its levy each year the estimated amount of Abatement from that Parcel, based on the actual value as of January 2 in the year of assessment (for collection the following year). (b) The City's calculation of the Abatement amount from any Commercial Improvements will be conclusive, so long as it is based upon and does not deviate from the tax capacity and tax rate data in County property tax records. SJB-239576v2 19 SH235-12 ARTICLE VI Insurance Section 6.1. fusurance. (a) The Developer will provide and maintain at all times prior to the Maturity Date: (i) comprehensive general liability insurance (including operations, contingent liability, operations of subcontractors, completed operations and contractual liability insurance) together with an Owner's Protective Liability Policy with limits against bodily injury and property damage of not less than $1,000,000 for each occurrence (to accomplish the above-required limits, an umbrella excess liability policy may be used). The City shall be listed as an additional insured on the policy; and (ii) Such other insurance, including workers' compensation insurance respecting all employees of the Developer, in such amount as is customarily carried by like organizations engaged in like activities of comparable size and liability exposure; provided that the Developer may be self-insured with respect to all or any part of its liability for workers' compensation. (b) All insurance required in Article VI of this Agreement shall be taken out and maintained in responsible insurance companies selected by the Developer which are authorized under the laws of the State to assume the risks covered thereby. Upon request, the Developer will deposit annually with the City policies evidencing all such insurance, or a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Article VI of this Agreement each policy shall contain a provision that the insurer shall not cancel nor modifY it in such a way as to reduce the coverage provided below the amounts required herein without giving written notice to the Developer and the City at least thirty (30) days before the cancellation or modification becomes effective. fu lieu of separate policies, the Developer may maintain a single policy, blanket or umbrella policies, or a combination thereof, having the coverage required herein, in which event the Developer shall deposit with the City a certificate or certificates of the respective insurers as to the amount of coverage in force. (c) All of the insurance provisions set forth in this Article VI shall terminate upon the termination of this Agreement. Section 6.2 Subordination. Notwithstanding anything to the contrary contained in this Article VI, the rights, if any, of the City with respect to the receipt and application of any proceeds of insurance shall, in all respects, be subject and subordinate to the rights of any lender under a Mortgage. Section 6.3. fudividual Developers. In addition to the insurance described above, each Individual Developer will be required provide evidence of commercially customary casualty insurance covering the Individual Improvements. SJB-239576v2 20 SH235-12 ARTICLE VII Financin2 Section 7.1. Generally. Before commencement of construction of any Individual Improvements, the Individual Developer shall submit to the Authority or provide access thereto for review by the City Representative evidence reasonably satisfactory to the City that the Individual Developer has available funds, or commitments to obtain funds, whether in the nature of mortgage financing, equity, grants, loans, or other sources sufficient for paying the cost of the developing the Individual Improvements, provided that any lender or grantor commitments shall be subject only to such conditions as are normal and customary in the commercial lending industry. Section 7.2. Modification; Subordination. In order to facilitate the Developer or any Individual Developer obtaining financing for the development of any Individual Improvements, the City agrees to subordinate its rights under this Agreement to the Holder of any Mortgage securing construction or permanent financing, under terms and conditions reasonably acceptable to the Authority; provided that if any h1dividual Development Agreement requires execution of an assessment agreement pursuant to Minnesota Statutes, Section 469.177, subd. 8, in no event will the City's rights under that assessment agreement be subordinated to any Mortgage. SJB-239576v2 21 SH235-12 ARTICLE VIII Prohibitions A2ainst Assi2nment and Transfer; Indemnification Section 8.1. Representation as to Development. The Developer's purchase of the Development Property, and its other undertakings pursuant to the Agreement, are, and will be used, for the purpose of development of the Development Property and not for speculation in land holding. Section 8.2. Prohibition Against Developer's Transfer of Property and Assignment of Agreement. Prior to substantial development of the Development Property within the meaning of Section 4.7(b) hereof: (a) Except only by way of security for, and only for, the purpose of obtaining financing necessary to enable the Developer, Individual Developer, or any successor in interest to the Development Property, or any part or Parcel thereof, to perform its obligations with respect to development of the Development Property under this Agreement, and any other purpose authorized by this Agreement, the Developer has not made or created and will not make or create or suffer to be made or created any total or partial sale, assignment, conveyance, or lease, or any trust or power, or transfer in any other mode or form of or with respect to the Agreement or the Development Property or any part thereof or any interest therein, or any contract or agreement to do any of the same, to any person or entity whether or not related in any way to the Developer (collectively, a "Transfer"), without the prior written approval of the City unless the Developer or h1dividual Developer remains liable and bound by this Development Agreement in which event the City's approval is not required. Any such Transfer shall be subject to the provisions of this Agreement. (b) In the event the Developer, upon Transfer of the Development Property or any portion thereof, seeks to be released from its obligations under this Development Agreement as to the portions of the Development Property that is transferred or assigned, the City shall be entitled to require, except as otherwise provided in the Agreement, as conditions to any such release that: (i) Any proposed transferee shall have the qualifications and financial responsibility, in the reasonable judgment of the City, necessary and adequate to fulfill the obligations undertaken in this Agreement by the Developer as to the portion of the Development Property to be transferred. (ii) Any proposed transferee, by instrument in writing satisfactory to the City and in form recordable in the public land records of Scott County, Minnesota, shall, for itself and its successors and assigns, and expressly for the benefit of the City, have expressly assumed all of the obligations of the Developer under this Agreement as to the portion of the Development Property to be transferred and agreed to be subject to all the conditions and restrictions to which the Developer is subject as to such portion; provided, however, that the fact that any transferee of, or any other successor in interest whatsoever to, the Development Property, or any part thereof, shall not, for whatever reason, have SJB-239576v2 22 SH235-12 assumed such obligations or so agreed, and shalI not (unless and only to the extent otherwise specificalIy provided in this Agreement or agreed to in writing by the City) deprive the City of any rights or remedies or controls with respect to the Development Property or any part thereof, it being the intent of the parties as expressed in this Agreement that (to the fullest extent permitted at law and in equity and excepting only in the manner and to the extent specificalIy provided otherwise in this Agreement) no transfer of, or change with respect to, ownership in the Development Property or any part thereof, or any interest therein, however consummated or occurring, and whether voluntary or involuntary, shall operate, legalIy or practically, to deprive or limit the City of or with respect to any rights or remedies on controls provided in or resulting from this Agreement with respect to the Development Property that the City would have had, had there been no such transfer or change. In the absence of specific written agreement by the City to the contrary, no such transfer or approval by the City thereof shall be deemed to relieve the Developer, or any other party bound in any way by this Agreement or otherwise with respect to the Development Property, from any of its obligations with respect thereto. (iii) Any and all instruments and other legal documents involved in effecting the transfer of any interest in this Agreement or the Development Property governed by this Article VIII, shall be in a form reasonably satisfactory to the City. In the event the foregoing conditions are satisfied then the Developer shall be released from its obligation under this Agreement, as to the portion of the Development Property that is transferred, assigned or otherwise conveyed. The restrictions under this Section terminate upon substantial development of the Business Park Property within the meaning of Section 4.7(b) hereof. Section 8.3. Qualifications. Notwithstanding the provisions of Section 8.2, the Developer may effect the following Transfers without prior approval by the City: (a) Transfer of any Parcel within the Commercial Property to a bona fide developer of Commercial Improvements in accordance with Article V hereof; (b) Transfer of the Residential Property to a bona fide developer of Residential Improvements, or Transfer of any Parcel of Residential Property to a residential owner-occupant. (c) Transfer of any Parcel of Business Park Property to an h1dividual Developer, provided that Developer is released from its obligations under this Agreement as to that Parcel only upon execution of the Individual Development Agreement for that Parcel. Section 8.4. Release and h1demnification Covenants. (a) The City and the governing body members, officers, agents, servants and employees thereof (the "Indemnified Parties") shall not be liable for and the Developer shalI indemnify and hold harmless the h1demnified Parties against any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Development Property or any improvements constructed thereon. SJB-239576v2 23 SH235-12 (b) Except for any willful misrepresentation or any willful or wanton misconduct or negligence of the h1demnified Parties, and except for any breach by any of the Indemnified Parties of their obligations under this Agreement, the Developer agrees to protect and defend the Indemnified Parties, now and forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit, action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising from this Agreement, or the transactions contemplated hereby or the acquisition, construction, installation, ownership, maintenance and operation of the Development Property or any improvements constructed thereon. (c) The Indemnified Parties shall not be liable for any damage or injury to the persons or property of the Developer or its officers, agents, servants or employees or any other person who may be about the Development Property or Individual hnprovements. (d) All covenants, stipulations, promises, agreements and obligations of the City contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of such entities and not of any governing body member, officer, agent, servant or employee of such entities in the individual capacity thereof. SJB-239576v2 24 SH235-12 ARTICLE IX Events of Default Section 9.1. Events of Default Defined. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement, anyone or more of the following events: (a) failure by the Developer to observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement, the PUD Agreement, or the Developer's Agreement; (b) commencement by the Holder of any Mortgage on the Development Property or any improvements thereon, or any portion thereof, of foreclosure proceedings as a result of default under the applicable Mortgage documents; (c) if the Developer shall (i) file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act or under any similar federal or State law; or (ii) make an assignment for benefit of its creditors; or (iii) admit in writing its inability to pay its debts generally as they become due; or (iv) be adjudicated a bankrupt or insolvent. (d) Failure by the City to observe or perform any material covenant, condition, obligation or agreement or its part to be observed or performed under this Agreement. Section 9.2. Remedies on Default. Whenever any Event of Default referred to in Section 9.1 of this Agreement occurs, the non-defaulting party may exercise any of the following rights under this Section 9.2 after providing thirty days written notice to the other of the Event of Default, but only if the Event of Default has not been cured within said thirty days or, if the Event of Default is by its nature incurable within thirty days, the defaulting party does not, within such 30-day period, provide assurances reasonably satisfactory to the party providing notice of default that the Event of Default will be cured and will be cured as soon as reasonably possible: (a) Suspend its performance under the Agreement until it receives reasonably satisfactory assurances that the defaulting party will cure its default and continue its performance under the Agreement. (b) Except to the extent contractually committed pursuant to an Individual Development Agreement, cancel and rescind or terminate its obligations under the Agreement or SJB-239576v2 25 SH235-12 any portion thereof, including without limitation the obligation to make Abatement payments under Section 3.2 as to any Parcel owned by Developer as ofthe date ofthe notice of default; or (c) Take whatever action, including legal, equitable or administrative action, which may appear necessary or desirable to collect any payments due under this Agreement, or to enforce performance and observance of any obligation, agreement, or covenant of the Developer under this Agreement. Section 9.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to any party 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. h1 order to entitle the non-defaulting party to exercise any remedy reserved to it, it shall not be necessary to give notice, other than such notice as may be required in this Article IX. Section 9.4. No Additional Waiver Implied by One Waiver. In the event any agreement contained in this Agreement should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. Section 9.5. Attorney Fees. Whenever any Event of Default occurs and if the City shall employ attorneys or incur other expenses for the collection of payments due or to become due or for the enforcement of performance or observance of any obligation or agreement on the part of the Developer under this Agreement, the Developer shall, within ten days of written demand by the City, pay to the City the reasonable fees of such attorneys and such other expenses so incurred by the City. SJB-239576v2 26 SH235-12 ARTICLE X Additional Provisions Section 10.1. Conflict of h1terests~ Representatives Not Individually Liable. The City and the Developer, to the best of their respective knowledge, represent and agree that no member, official, or employee of the City shall have any personal interest, direct or indirect, in the Agreement, nor shall any such member, official, or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership, or association in which he is, directly or indirectly, interested. No member, official, or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Developer or successor or on any obligations under the terms of the Agreement. Section 10.2. Equal Employment Opportunity. The Developer, for itself and its successors and assigns, agrees that during the term of this Agreement it will comply with all applicable federal, state and local equal employment and non-discrimination laws and regulations as they relate to the development of the Development Property. Section 10.3. Covenant to Pay Propertv Taxes. The Developer agrees for itself, its successors and assigns, in addition to the obligation pursuant to statute to pay real estate taxes, that it is also obligated by reason of this Agreement to pay before delinquency all real estate taxes assessed against the Commercial Property and Business Park Property during any period while Developer holds title to such property. The Developer acknowledges that this obligation creates a contractual right on behalf of the City to sue the Developer or its successors and assigns to collect delinquent real estate taxes and any penalty or interest thereon and to pay over the same as a tax payment to the County auditor. In any such suit, the City shall also be entitled to recover its costs, expenses and reasonable attorney fees. Section lOA. Provisions Not Merged With Deed. None of the provisions of this Agreement are intended to or shall be merged by reason of any deed transferring any interest in the Development Property and any such deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. Section 10.5. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 10.6. Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand, or other communication under the Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally; and (a) in the case of the Developer, is addressed to or delivered personally to the Developer at ; Attention: ; and SJB-239576v2 27 SH235-12 (b) in the case of the City, is addressed to or delivered personally to City Hall, 129 Holmes Street, Shakopee, Minnesota 55379-1376; Attention: City Administrator; and or at such other address with respect to either such party as that party may, from time to time, designate in writing and forward to the other as provided in this Section. Section 10.7. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 10.8. Recording. The City may record this Agreement and any amendments thereto with the Scott County recorder. The Developer shall pay all costs for recording. SJB-239576v2 28 SH235-12 IN WITNESS WHEREOF, the City and Developer have caused this Agreement to be duly executed by their duly authorized representatives as of the date first above written. CITY OF SHAKOPEE, MINNESOTA Mayor City Administrator City Clerk STATE OF MINNESOTA ) ) SS. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _ day of ,2003, by William Mars, the Mayor of the City of Shakopee, Minnesota, on behalf of the City. Notary Public STATE OF MINNESOTA ) ) SS. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this _ day of , 2003, by Mark McNeill and Judy Cox, the City Administrator and City Clerk, respectively of the City of Shakopee, Minnesota, on behalf ofthe City. Notary Public SJB-239576v2 29 SH235-12 RYAN COMPANIES US, INe. By Its STATE OF MINNESOTA ) ) SS. COUNTY OF ) The foregoing instrument was acknowledged before me this _ day of , 2003, by , the of Ryan Companies US, Inc., a Minnesota corporation, on behalf of the corporation. Notary Public SJB-239576v2 30 SH235-12 SCHEDULE A DEVELOPMENT PROPERTY Outlots A, I and J, Dean Lakes, the preliminary plat of which is on file in City Hall. As such property is developed, individual lots will be created through replatting and/or subdivision, and Abatements will be collected for eaeh separate Parcel in accordance with the terms of the Master Development Agreement between the City and Ryan Companies US, h1e. SJB-239851vl SH235-12 - -- --- ---- - ---- -- -~" - - -- ~- <-------'- -' -- --- - --- - ---'-- -~ --- - - -- - -" -- -- -, - - - - I - - - -l e, 2001 RLI(-Kuu~;sto. l TO. ~~~~ ~~~ ~ 1111 m j PUBL~C ~MPROVEMENTS . . ~ ~ -- _ __ ---r-- - - - \ (~;)! ! BRlB.f'"Jr ~(}JA~9 D"'I'..uS :! i, I ' ; : . , , , : : i' , , , . " '! -- - .:::- 'J .T - -- i: i . - ~ -- -- _. - - . ~. - ._--~~-- ~" ------::::::::::::.::::::::::.....---.c_' tl ._---:::::::::::::::::..- '- ," - - i I ; , . , ! r ~I II II III n -;--:::.:::::iC::::::------- \) \ ~ I: \ ! ,. "a~ Il~ n fII ~ u. - H n iI D OJ · II 1 i [ j : " to Business Park II g II i i : fl iI u ~: iJ1 '- ! ~ \ '. ~ i i i i ; -~ D a ,f" N'" 1\ .. a ~ Ii tj i5 -- .- -- ~ / 13 ./' '" ~ is !E ~ ,r/ ~ '" < i5 I f (' is g; I f! ~~l I ,. n I ili BU,siness Park III III ;1", g )/ ii; f d >, " I!I ~d. I II i:l~ (II ~ll; (II !h: l' .. l" ResidentiCt.1 _1:1 < " IIllI IJI DEA~ LAKf: OHW.7-4,.0 IIIfII.. I 'IOQYR 1'\.000 . 7411,0 Ii /'-"'---':~"':"'J ./ .I g \, "- Ii e " ------ )\ .'--- -.- -/'-- y; ( Natural Open ""----::--- .. I , I ~ I ~ I I ~~li ~ i ~ I ^ liJ' 1 ~ . <.3 . ----=: ...:::!' ~ .., , "., ;l ~.., .. ..E I t ~ _ "~ .~"'...:""~ 0' .~" I ~.I ,. to .... _' '_ ~ ~. " ......~ ~'" I (, ~, ~ g ----- ---- ~" >" .,' 0 ! " ".j? '< ,. ff ~. t!. ., ~ I ~.,,'~~-,,~ -----.::---~ ----.. ~~ .~', . r?~' 'l" ~~ ~ -., ~'~'j- J ., ;(-" err I Space .~" ----.. ------. :;- -- ---- -~.; ., ~ .~ ~~~ ;'j . ~ ~. :~" ::::::> . r ... I -- -- .~~ ~ ~~, ~1 j , ~a i '""'- cd -; ! ~- 0..... E :;- 1 o ~ ~ ~,... ...~ t"'Y)ndl.J5tr. _I . ~1 U,:l j \_. I BUSINESS PARK AREA: 90 AC ---'~~$ .(~ c::: ::' 1 -----..-eo cd - " >,;! 0- .II l1ln AV" ~ 0:::: ~ iJI~. ~ =:J " ~ . . ~<:. .. ~~ ~L COMMERCIAL AREA: 44 AC . ".. ,'l,:.., t:: r E' 0: lD . J: I I. I RESIDENTIAL '" z~~ ~ 1 AREA: 42 AC wZ ~ \ WW 1 o:U z is j L-;. <.:>~~ ~ ! I I -"""A >-'<( I:f o , NATURAL OPEN SPACE AREA: 84 AC 0'z, ~gj @; '" ; !t ~Q, l€ ~ r :; ~ili o t :J ! ..t~;r NORTJl U lD , I T ~ 1 I R.O.W. AREA: 14 AC ~......::& . I (PUBLIC IMPROVEMENTS) SITE LOCATION .. , NOT TO SCALE 0 200 400 600 .- ~ ~i, ~ ----:-:l " ti ~o I m 'i ~",i SC>.LE IN FITT or- ;: { I --