HomeMy WebLinkAbout#2640/2641 Final Council Approval 10-19-2001 REQUEST FOR COUNCIL ACTION
Date: October 19, 2001
Item No.: 17
Department Approval: Administrator Approval: Agenda Section:
Zoning
Name: Michael P.Gaffron
Title: Planning Director '''
Item Description: #2640/2641 Dunbar Development Corp., 2060 Wayzata Blvd.
- Final Council Approval
List of Exhibits
A- Resolution 4619 (Concept Plan Approval adopted March 12, 2001)
B - (For adoption)Preliminary Plat Approval Resolution
C - (For adoption) General Development Plan&Final Plat Approval Resolution
D - (For approval)PUD 2A(Office) Developers Agreement
E - (For approval) PUD 2B (Senior Housing) Developers Agreement
F - (For adoption)Rezoning and PUD No. 2 Ordinance
G - (For approval) Development Agreement(Senior Housing Terms& Conditions)
Exhibits Forthcoming:
H - (For adoption)Resolution Approving Issuance of Senior Housing Revenue Bonds and
Authorizing Execution of Bond Documents and Development Agreement Ie��
I- (For approval)Bond Documents(Will be distributed or summarized by Steve Rosholt at
Council meeting)
On October 8 Council reviewed the final plans for this project including floor plans and elevation
views, landscaping plan,grading/road/drainage and utility plans,and the signage plan. Wally Case
of DSU has reviewed the landscaping plan, and his comments are expected before Monday's
meeting,and will be incorporated into the approval documents. Council also reviewed the deferred
fees situation and concluded that the deferrals would be recouped through the last 5 years of TIF
proceeds rather than being an obligation of the developer at the end of 99 years.
As of the October 8 Council meeting we had anticipated approvals by the MCWD and Met Council
would be forthcoming within a few days after the October 22 meeting, and Council acknowledged
that final approval could be granted contingent on those approvals being received. Met Council is
still on track for approving our Comp Plan at their October 24 meeting, on their Consent Agenda.
Their draft staff report appears to hold no surprises that I can discern. MCWD approval has,
however, been rescheduled for November 8. The information we have received to date suggests
MCWD doesn't have any issues which would cause any site plan or platting revisions. Also, the
minor concerns raised by Mn/DOT appear to be resolved,and Dunbar expects a letter from MnDOT
confirming this will be in our hand shortly. Staff recommends that Council's approval on the 22nd
be conditioned on staff confirmation that all approvals are completed before the plat and
development documents will be released for filing(as well as Clerk certification and publication of
the rezoning ordinance).
#2640/2641 Dunbar Development Corp.
October 19, 2001
Page 2
DOCUMENTS
Following is an update/review of each of the final documents Council is requested to approve on
October 22:
Resolution: Preliminary Plat Approval (Exhibit B). This document has been considerably
revised since the October 8 version to streamline it, to incorporate by reference the findings and
conditions of the General Concept Plan Approval Resolution, and to detail the specific submittals
required for Final Plat approval. Council will be asked to adopt this resolution prior to the Final Plat
approval resolution.
Resolution: Approval of General Development Plan&Final Plat(Exhibit C). This Resolution
documents the process and agreements that have resulted General Development Plan approval and
Final Plat approval,and grants those approvals subject to the referenced agreements.This document
has changed only slightly since the prior version(mostly filling in blanks).
PUD 2A Agreement(Office) (Exhibit D). This document has been slightly revised since October
8 to reflect that final plans have yet to be submitted. Execution of this agreement commits the
developer to the office building as preliminarily proposed unless the PUD Agreement is amended.
PUD 2B Agreement(Senior Housing) (Exhibit E). This Agreement documents the conditions of
approval for development of the Senior Housing site (Phase 1). It establishes approval conditions
for the specific site plans, building plans, landscaping, grading, access, lighting & signage, etc. It
also documents the use of TIF funding and the City's intent and conditions regarding the duration
of the Senior Housing use. The agreement establishes City or Developer responsibility for various
aspects of the development, and requires a Letter of Credit prior to issuance of building permits. It
has changed only slightly to reflect the change in the agreement regarding deferred fees.
Ordinance: Rezoning, PUD Documentation (Add 10.53 Subd. 9) (Exhibit F). This document
has not changed since October 8.
Development Agreement Relating To Orono Woods Apartments (Exhibit G). This is the
primary agreement between the City,the HRA and Orono Senior Housing LLC that establishes and
documents the various financing arrangements including TIF financing,Housing Bonds,etc. It has
been revised since October 8 to incorporate the provisions for preference for Orono residents, City
staff, and Long Lake residents (see Section 4.4 of the Ground Lease, Exhibit B of this agreement)
and to reflect the deferred fees changes..
#2640/2641 Dunbar Dev. Corp.
October 19, 2001
Page 3
COUNCIL ACTION REQUESTED
Council is requested to take action on each of the following items,subject to staff confirmation that
all required exhibits and other required agency approvals are attached/completed prior to Clerk
authorizing filing of documents at the County.
1. Motion to adopt the Preliminary Plat Approval resolution (Exh. B) / '0
2. Motion to adopt the General Development Plan and Final Plat Approval resolution(Exh. C) 9 -C
3. Motion to approve PUD Agreements 2A and 2B (Exhibits D & E) 2 --O
4. Motion to adopt Rezoning Ordinance (Exhibit F)
5. Motion to approve Development Agreement and to adopt Resolution Approving Issuance of
Senior Housing Revenue Bonds and Authorizing Execution of Bond Documents and
Development Agreement. 4/_ 0
Any other actions required to complete approval will be noted by Counsel(Barrett or Rosholt)at the
meeting.
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.14CITY of ORONO
�. ;1I G~ , RESOLUTION OFT C TY COUNCIL
\ ESS
A RESOLUTION APPROVING THE
GENERAL CONCEPT PLAN FOR PROPERTY
LOCATED AT 2060 WAYZATA BOULEVARD
FILE NO. 2640/2641
WHEREAS, Orono Ambar, LLC (hereinafter the "applicant") has an interest in
property located at 2060 Wayzata Boulevard within the City of Orono (hereinafter the "City")
and legally described as follows:
Outlot F, Sugarwoods, Hennepin County, Minnesota
(hereinafter the "property"); and
WHEREAS, the City of Orono Highway 12 PUD ordinance (Municipal Code
Section 10.53) requires a multiple step approval process for properties developing as part of
a PUD; the General Concept Plan approval stage is the first step in the process followed by
the Development approval stage, with a concurrent platting process for Preliminary and Final
Plat Approval; and
WHEREAS, the applicant has requested General Concept Plan Approval for a
two lot plat of this 6.7 acre property. Proposed is a rezoning from B-1, Retail Sales Business
District to B-6/PUD (for office use of the proposed west parcel) and RPUD/PUD (for multi-
family residential use of the proposed east parcel). The intended use of the properties are a
23,000 s.f. office building and a 3-story, 62 unit residential senior housing building; and
WHEREAS, the property is located in the Highway 12 Corridor Study Area for
which the City has established special requirements for rezoning per Municipal Code Section
10.52; and
WHEREAS, the proposed residential use of a portion of the property would
require a Comprehensive Plan Amendment as the property is not guided for residential use in
Orono's 1980 Comprehensive Plan nor in the preliminarily approved 2000-2020 Comprehensive
Plan; and
WHEREAS, the Orono City Council makes the following findings in regard to
this application:
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FINDINGS
1. This application was reviewed as Zoning Files #2640-2641.
2. The property is located in the B-1 Limited Neighborhood Business District. The
property consists of approximately 6.7 acres.
3. The development plans include a 23,000 s.f. two-story office building and a 62
unit "55+" senior housing building. The office building would be located on a
parcel approximately 2.7 acres in size. The residential use would be located on
a parcel approximately 4.0 acres in size.
4. Rezoning of the property- from B-1 General Business to B-6 and RPUD is
essentially down zoning, of the property as the permitted uses in the B-6 and
RPUD districts would have less potential impact on the adjacent residential
properties than certain allowed B-1 retail uses. The proposed office use and
senior residential component will not result in the same traffic levels or
development pattern as a retail environment.
5. The 62 unit building on the 4 acre site would provide 15.5 units/acre of senior
housing units at a variety of unit sizes and rental rates. The proposed rezoning
to RPUD Residential Planned Unit Development zoning district is appropriate
to allow for the units/acre density requested based on two key factors:
a. The land is currently zoned to allow high intensity retail uses. The
proposed higher density senior housing use will have a substantially lower
impact on the adjacent properties and the transportation system than
would a high intensity retail use.
b. The senior housing use has a substantially lower impact in terms of
traffic generation and impact on adjacent properties, particularly the single
family residential neighborhood directly adjacent to the property, than
would other types of higher density residential development.
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\`'Al. 10). � I i�^�� G� RESOLUTION OF THE CITY COUNCIL
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6. Amendment of the Comprehensive Plan is warranted because while the use of
the westerly portion of the property will be in keeping with the currently planned
"commercial" use as established in the 1980 and 2000-2020 CMP, senior housing
use of the easterly portion of the property will be more compatible with the
existing adjacent single-family residential use to the immediate north than would
development to high-intensity retail commercial as currently guided. Amendment
of the Comprehensive Plan is also warranted because topography of the site is
severe, making retail development more difficult, more costly and potentially
more visually incompatible with the surrounding area due to the potential need
for extensive retaining walls to accommodate expanded access and parking needs.
7. The proposed senior housing meets a number of Orono's housing goals including
the provision of lifecycle housing options and provision of affordable housing.
8. The proposed development has incorporated building and road design that takes
advantage of the existing topography. The senior building has been designed to
fit the general topography of the land, resulting in the ability to reduce the
visual impacts of the 3'd story as well as maintain a vegetated buffer to the north
where existing residential homes would be most impacted by the mass of the
building. Likewise, the office building has been limited to two stories, has been
moved to provide more than the required rear setback, and has been oriented
with the short side facing the adjacent residential neighborhood, limiting its
visual impacts from neighboring properties.
9. Provision of buffers on site will decrease the visual impacts to the adjacent
single family residential use. The Sugar Woods Homeowners Association owns
and maintains a 40' wide platted outlot buffer strip along the perimeter of that
residential subdivision and immediately adjacent to the property. While
restrictions were placed on each lot within the Sugar Woods neighborhood that
prohibits removal of trees greater than 2" in diameter within the rear setback for
those lots located closest to the proposed development, additional screening will
be needed on the property to minimize the impacts of the mass and length of
the senior building as well as the proximity of parking area serving the office
building. Buffers to the east, south and west of the property are less critical
because the property is located on Highway 12; the properties to the east and
Page 3 of 13
CITY of ORONO
v ,�ok 0 RESOLUTION OF THE CITY COUNCIL
\kESHN0. 4 B 1
south in the City of Long Lake are or will be mostly commercially developed.
Properties located west of the project are commercially developed as the Orono
Shopping Center and Conoco gas station.
10. Stormwater management will be provided by storm drains discharging to the
existing stormwater pond located adjacent to the property. The pond is owned
by MnDOT and has been designed with the capacity to handle stormwater flows
from the property. In addition to the City of Orono, MnDOT and the
Minnehaha Creek Watershed District have approval authority over the stormwater
management plan.
11. Vehicular access to the property will primarily be via a private road entering
Brown Road north of the stormwater pond. This is the ideal primary
ingress/egress to the property because a signalized intersection is planned for
Highway 12 and Brown Road as part of the Highway 12 re-routing process.
The City intends that this signalization be completed concurrent with completion
of development of the property. Secondary access to the property will be via a
right-in right-out access directly to Highway 12 at the boundary between
proposed Lots 1 and 2. At this location a full access to Highway 12 is not
appropriate because of proximity to the Brown/12 intersection. The Orono
Comprehensive Plan does include a future service road connection between
Brown Road and the properties to the west. The service drive has been
designed to allow for a future connection to the west via the northwest corner
of the office parking lot. This would connect with existing future road Outlots
existing within the plats of Sugar Woods and East Willow Woods, with potential
future service road connections to a location directly across 12 from Brimhall
Avenue or continuing west to Willow Drive. Such future connections would
likely reduce the amount of through traffic affecting the senior housing visitor
parking areas.
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NO.
12. Required off-street parking per Section 10.61, Subd. 10 is as follows:
Office Building:
Required stalls = 1 per 200 s.f. of "net usable floor area for office use"
Net usable floor area = 19,400 s.f. +
Total stalls required = 19,400/200 = 97
Total stalls proposed = 97
Senior Residential Building
Required stalls = 2 per dwelling unit (standard for multiple dwelling use)
Number of dwelling units = 62
Total stalls required = 124
Total stalls proposed = 83 interior stalls + 39 exterior stalls = 122 stalls
The senior housing parking proposal is 2 stalls short of the standard parking
requirement. A building designed for senior housing use may not require the
same parking standards as an apartment-type multiple dwelling use. Applicant
has stated in his experience the parking proposed on site will be sufficient for
the intended use. Pedestrian access between the office and senior building
parking lots will be provided to allow for potential use of the office parking by
senior building visitors during weekend hours.
13. An existing 8' wide trail which is part of the Orono comprehensive trail system
is located along Brown Road. An existing 6' sidewalk is located along the south
property line adjacent to Highway 12. The proposed site plan provides pedestrian
access to the existing trail and sidewalk via sidewalks within the site. A
sidewalk connection between the office building and senior housing building
within the site will also be constructed to allow for easy pedestrian access
between the two uses, which will allow for weekend overflow parking.
14. The applicant has provided preliminary site plans, grading plans, landscaping
plans, utility plans and building construction plans which the Council finds are
sufficient to indicate the intent of the developer and the potential impacts of the
project.
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,403 iok G / RESOLUTION OF THE CITY COUNCIL
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15. The applicant has requested financial assistance from the City of Orono to allow
for affordable rents. Such methods include the creation of a TIF district or
similar provisions or reimbursements.
16. The developer has proposed to plat the senior housing project as condominiums.
Each unit would have a separate legal description and tax statement. Under this
type of plat the units would be owned by a non-profit agency and rented to the
occupants under the agreements established for the building. The applicant has
provided a preliminary plat drawing to allow subdivision of the property into two
lots for development purposes.
17. The City Council finds that the proposed rezoning, proposed comprehensive plan
amendment, proposed subdivision and proposed development of an office
building and senior housing building are appropriate for the property, will not
have negative impacts on the surrounding properties when all approval conditions
are met, and are in keeping with the goals, policies and philosophies of the City.
CONCLUSIONS, ORDER AND CONDITIONS
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City
of Orono hereby approves the General Concept Plan for development of a 62 unit building for
senior housing use and a 23,000 s.f. general office building, subject to the following
declarations and conditions:
1. The City of Orono will approve an amendment to the Orono Comprehensive
Plan to allow for the proposed uses upon City Council finding of satisfactory
completion of the Conditions for Development Plan and Final Plat Approval.
2. The City of Orono will approve rezoning of the property as described herein
upon City Council finding of satisfactory completion of the Conditions for
Development Plan and Final Plat Approval.
3. This resolution is not intended to grant PreliminaryPlat Approval.
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'VIM .1) RRESOLUTION OFT E C1TY COUNCIL
V.�kES�
NO. JJjj
4. Conditions for Development Plan and Final Plat Approval are as follows:
A. Plans and Specifications. The following plans and specifications shall
be submitted for review and approval by the City and other appropriate
jurisdictions:
1) Final plans and specifications for all proposed utility lines and
services, including any proposed revisions to existing service
facilities. (Plans and specifications for service line connections
around the pond. Proposed plans shall be provided to the City
for final review and approval with the Preliminary Plan set. The
Public Works Department and MnDOT shall review and approve
all utility improvements.)(Final sanitary sewer and watermain
plans shall be provided and subject to approval by the Public
Works Department. Plan sets for sewer and water shall be
provided with the Preliminary Plat set.)
2) Final grading, drainage and erosion control plan showing existing
and proposed contours, building locations, elevations, stormwater
facilities and calculations, utilities and erosion control measures
to be used during construction. Development Plan and Final Plat
Approval will not be granted until the Minnehaha Creek
Watershed District and MnDOT have approved the stormwater
plans.
3) Engineering details and design for any proposed retaining walls.
4) Final landscaping design plan with planting schedules including
numbers and species, in accordance with the landscaping
requirements of the RPUD and B-6 zoning districts.
5) Final building construction plans detailing roofing and siding
materials, etc.
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CITY of ORONO
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�� I � RESOLUTION OF THE CITY COUNCIL
�kz 1;0 No. 4 1
6) • Road and parking lot construction plans, including confirmation
that parking lots and roadways will be paved and provided with
concrete curb and gutter, and that all driving lanes within parking
lots shall have a 9-ton minimum pavement section. A geotechnical
evaluation of the soil shall be done in conjunction with the
pavement design and shall be submitted to the City Engineer for
approval. Applicant shall provide detailed engineering evaluations
and plans to indicate the stability of the parking areas located
adjacent to the office building, including the retaining wall system
adjacent to the property.
7) Detailed signage and lighting plans.
8) Any additional plans and specifications deemed necessary by the
City as review progresses.
B. Platting Process. Applicant shall complete all requirements for Final
Plat Approval as outlined in a forthcoming Preliminary Plat Approval
Resolution.
C. General Conditions.
1) The sidewalk/trail connections shall be provided to the Brown
Road trail along the east side of the property, from the property
to the sidewalk along Highway 12, and between each of the
proposed buildings. All trails shall be permanently owned and
maintained by applicant/property owner to provide pedestrian
access through the site.
2) Applicants' architect shall submit final development plans to the
Metro Council Environmental Services to determine the exact
number of SAC units to be charged at the time of the issuance of
building permits.
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� ^`��L ki �, RESOLUTION OF THE CITY COUNCIL
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3) Appropriate traffic and parking signage shall be installed subject
to the Orono staff and City Engineer's review, including required
stop signs within the parking lots and service drive to ensure safe
parking areas and pedestrian crossing within the development.
4) All landscaping shall conform to the standards established by City
ordinance for the RPUD and B-6 districts.
5) Monument signs may be provided by the developer at each
entrance to the site. The signage shall be limited to a company
or development name and/or logo and street address on the
monument signs. Final design/materials of monument signage
shall be subject to approval by the City Council.
6) Final lighting plan shall be subject to City staff approval and shall
locate lighting so as to direct lights away from the adjacent
residential neighborhood.
7) Erosion control shall adhere to "Best Management Practices for
Protecting Water Quality in Urban Areas". All erosion controls
as required by the City shall be in place prior to commencing
excavation on the site.
8) The construction limits shall be clearly marked with adequate
fencing to prevent any construction damage or disturbance of any
trees and vegetation outside of the construction limits area.
Developer must strive to maintain perimeter vegetation to the
greatest extent possible during construction to minimize visual
impacts.
9) Additional improvements including burying of power lines.
installation of street lighting compatible with the City of Long
Lake's street lighting program, and improvement of sidewalks
outside the project boundaries will be addressed in the
Development Agreement noted herein.
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RESOLUTION OF TEITY COUNCIL
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10) A road easement shall be granted to the City to permit public
ingress/egress over the driveways on the site to guarantee future
access for a public road should the City choose to develop a
service road connection to the west in the future.
11) Easements shall be provided to allow for ingress and egress over
the driveways and sidewalks on the site to allow access between
the office building and senior housing parcel.
12) Additional Drainage and Utility Easements shall be granted to the
City of Orono over all utility lines and rights of way.
13) This concept plan approval is based upon the known issues that
may affect this project, but this approval does not limit the City
from revising or amending these conditions as the review process
continues.
D. Financial Plan. Development Plan and Final Plat Approval are
contingent on successful completion of a financing plan acceptable to the
City Council which may include use of TIF funding and/or other means
of financial assistance for the senior housing development. The use of
such financial assistance methods is intended to ensure the continued use
of the senior housing building for its intended purpose, and to provide
disincentives to its conversion to other uses which may not be in keeping
with City housing goals.
E. Development Agreement. Development Approval and Final Plat
Approval is contingent upon the successful execution of a Development
Agreement between the applicant and the City. Such Agreement shall
address all financial arrangements between the applicant and the City, as
well as all specific City requirements for the development.
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�►��M�'`1 G~„,, ,, RESOLUTION OF THE CITY COUNCIL
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F. Financial Guarantee. The Development Agreement shall include a
financial guarantee by the applicant to ensure the completion of site
improvements. The City Engineer shall complete an estimate of
improvement costs, including but not limited to landscaping, grading,
erosion control, utilities, driveways and parking areas, trails, sidewalks,
retaining walls and stormwater management facility construction, and the
applicant shall provide to the City a financial guarantee of 150% of the
improvement costs.
G. Park Dedication. City will waive the RPUD requirements for 10% site
dedication for private parks for the senior housing project. The standard
Park Dedication fee shall be paid by the developer for the senior housing
site at the standard residential rate provided by City ordinance (8% of the
fair market value of the site but not less than $3,100 per dwelling unit).
The City Council may agree to defer specified amounts of the senior
housing park fee, which arrangement shall be detailed within the
Financial Plan. The standard park dedication fee for the office project site
shall be paid by the developer at the standard per-acre rate per City
ordinance (8% of fair market value of land but not to exceed $13,250 per
acre).
H. Sewer and `Vater Connection Charges. The applicant shall pay sewer
and water connection charges to the City in an amount to be arrived at
by use of the following formula:
(A + B) - 41 x 6.7 acres x $13,545/acre = Connection Charge Due
(A + B)
where: A = number of senior housing dwelling units
B = number of SAC units required for office building
41 = number of sewer/water units paid previously
The City Council may agree to defer specified amounts of the sewer and
water connection charges, which arrangement shall be detailed within the
Financial Plan.
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CITY of ORONO
-.41 G~/% RESOLUTION OF THE CITY COUNCIL
\kESf.
H�/ NO. 6
5. This General Concept Plan approval resolution approves the development concept
subject to the applicant meeting the requirements of this resolution and all other
requirements of the City. This resolution does not constitute approval of the
Rezoning or Comprehensive Plan Amendment. This resolution does not constitute
Preliminary Plat Approval. Such approvals shall only be considered when the
City Council finds that all "Conditions for Development Plan and Final Plat
Approval" as identified herein have been met.
6. This Conceptual Approval shall be effective for a period of 6 months from the
date of this resolution. If Development Plan and Final Plat Approval is not
granted within that period, the terms and conditions of this resolution shall be
null and void. The City Council at its sole discretion may extend this effective
period.
7. The undersigned applicants have read and reviewed this document.
Adopted by the Orono City Council on this 12th day of March, 2001.
ATTEST:
&AL-- At4.6-6,4e1)
Linda S. Vee, City Clerk Barbara A. Peterson, Mayor
e/67/7 &/,./7/ z
Appli ant
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CITY of ORONO
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\�� 0 i� pRESOLUTION OF THE CITY COUNCIL
�t�?fEs_Kra.9/ NO. 4 6 1 9
STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me on this 12th day of
March, 2001 by Barbara A. Peterson and Linda S. Vee, Mayor and City Clerk of the City of
Orono, a Minnesota municipal corporation, and said instrument was executed on behalf of the
City.
RACHEL DODGE
}0._ NOTARY PUBLIC•MIME:OTA L_X—L-C iJ G'cf c/>(--a
My Commission EON Jon.31,2006
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
r
On this �/ S day of 41-L9 4--c S , 20 0/ before me a Notary Public
within and for said county, personally appearedFro."--)k C • Dc , C�h,e 1 Mcie x.,et-
known to me to be the person(s) described in and who executed the foregoing instrument, and
acknowledged that he(they) executed the same as his (their) free act and deed.
r1
RACHEL DODGE
- NOTARY PUBLIC'MN+NIEVOTA NOTARY PUBLIC
Page 13 of 13
A RESOLUTION APPROVING THE
PRELIMINARY PLAT FOR PROPERTY
LOCATED AT 2060 WAYZATA BOULEVARD
FILE NO. 2640/2641
WHEREAS, Orono Ambar, LLC (hereinafter the "applicant") has an interest
in property located at 2060 Wayzata Boulevard within the City of Orono (hereinafter the
"City") and legally described as follows:
Outlot F, Sugarwoods
Hennepin County, Minnesota (hereinafter the "property"); and
WHEREAS, the Orono Planned Unit Development (PUD) ordinance requires
a multi-step approval process for properties developing as a Planned Unit Development.
Resolution No. 4619 for General Concept Plan Approval was adopted on March 12, 2001.
Preliminary Plat approval is required prior to the granting of Final Plat approval and
General Development Plan Approval; and
WHEREAS, pursuant to the General Concept Plan approval, the applicant has
requested Preliminary Plat approval for a two lot plat of the 6.7 acre property to create a
2.7 acre parcel to be rezoned from B-1, Retail Sales Business District to B-6/PUD,
proposed for use as a site for a 23,000 s.f. office, and a 4.0 acre parcel to be rezoned
from B-1, Retail Sales Business District to RPUD/PUD for residential use, specifically for
a 3-story 62 unit senior housing building; and
WHEREAS, the property is located in the Highway 12 Corridor Study Area
which has established special requirements for rezoning; and
WHEREAS, the City of Orono has agreed to purchase the 4.0 acre parcel
that will contain the senior housing building and lease the property to a non-profit
organization that will own and operate the building; and
Page 1 of 8
WHEREAS, the Orono City Council makes the following findings in regard
to this application:
FINDINGS
1. This application was reviewed as Zoning Files #2640-2641 for simultaneous
review of the preliminary and final plat of Orono Woods.
2. The property is located in the B-1 Limited Neighborhood Business District.
The property consists of approximately 6.7 acres.
3. The City Council adopted Resolution No. 4619 on March 12, 2001, making
findings and conditions which support the proposed platting of Outlot F into
two separate parcels as noted herein, and approving the General Concept Plan
for a 23,000 s.f. two-story office building and a 62-unit senior housing
building. The findings and conditions of Resolution No. 4619 are incorporated
herein by reference.
4. The developer intends to replat the senior housing building as condominiums
upon completion of the building. Each unit would have a separate legal
description and tax statement. Under this type of plat the units would be
owned by a non-profit agency and rented to the occupants under the
agreements established for the building. Such a replat will require a separate
application when proposed, and is not part of this approval.
CONCLUSIONS, ORDER AND CONDITIONS
NOW, THEREFORE, BE IT RESOLVED, that based upon one or more of
the findings noted above, the City Council of the City of Orono hereby grants Preliminary
Plat Approval for Orono Ambar LLC for a 2-lot plat per the undated preliminary plat
survey by Loucks Associates attached hereto as Exhibit A, subject to the following
conditions:
Page 2 of 8
1. Plans and Specifications. The following plans and specifications shall be
submitted for review and approval by the City and other appropriate jurisdictions, to
ensure that the proposed plat will accomplish the intended purposes:
a) Final plans and specifications for all proposed utility lines and services,
including any proposed revisions to existing service facilities. (Plans and
specifications for service line connections around the pond. Proposed plans shall
be provided to the City for final review and approval with the Preliminary Plan
set. The Public Works Department and MnDOT shall review and approve all
utility improvements.)(Final sanitary sewer and watermain plans shall be provided
and subject to approval by the Public Works Department. Plan sets for sewer
and water shall be provided with the Preliminary Plat set.)
b) Final grading, drainage and erosion control plan showing existing and
proposed contours, building locations, elevations, stormwater facilities and
calculations, utilities and erosion control measures to be used during construction.
Development Plan and Final Plat Approval will not be granted until the
Minnehaha Creek Watershed District and MnDOT have approved the stormwater
plans.
c) Engineering details and design for any proposed retaining walls.
d) Final landscaping design plan with planting schedules including numbers
and species, in accordance with the landscaping requirements of the RPUD and
B-6 zoning districts.
e) Final building construction plans.
f) Road and parking lot construction plans, including confirmation that
parking lots and roadways will be paved and provided with concrete curb and
gutter, and that all driving lanes within parking lots shall have a 9-ton minimum
pavement section. A geotechnical evaluation of the soil shall be done in
conjunction with the pavement design and shall be submitted to the City Engineer
for approval. Applicant shall provide detailed engineering evaluations and plans
to indicate the stability of the parking areas located adjacent to the office
building, including the retaining wall system adjacent to the property.
Page 3 of 8
2. Easements.
a) Drainage and Utility Easements shall be granted to the City of Orono over
all utility lines and rights of way.
b) Drainage and Utility Easements shall be dedicated to the public on the
final plat 10' along all exterior property lines, except along the north property
line where a 5' easement is required, and 5' either side of the interior
property line.
c) All required stormwater facilities to be developed on the site shall be
designated on the plat as drainage easements.
d) Road easement to permit public ingress/egress over the service/frontage
road shall be granted to the public but shall not be shown on the plat.
3. Developers Agreements. Applicant to execute Developer's Agreement for
construction of improvements in each of Lots 1 and 2 to ensure all site improvements
are installed to City's specifications and satisfaction. Said Develeopers Agreements
may contain additional conditions not noted in this Preliminary Plat Approval
resolution. No land alterations can take place until erosion control is established and
the City is in receipt of a final grading and road plan. No improvements can begin
until City Engineer has approved all improvement plans. A Letter of Credit must
accompany a fully executed Developer's Agreement written to 150% of the cost of
the proposed site improvements, including landscaping.
The following list of final submittals must be submitted to the Zoning Administrator two
weeks prior to the regularly scheduled Council meeting on the second and fourth Mondays
of the month. These submittals are as follows:
1. Record plat drawings in the form of two (2) mylar copies (one copy for the
City's records and one for filing with Hennepin County) and one (1) copy
reduced to 1" = 200'. Drawing to include:
Page 4 of 8
A. Lot lines platted per preliminary survey by Loucks Associates, undated
and attached hereto as Exhibit A.
B. Dedication of "drainage and utility easements" 10' along west south
and east boundaries of the property and 5' along all internal lot lines
and along the north boundary.
C. Designation and dedication on the plat drawings of drainage and utility
easements over all proposed sewer, water, and storm sewer lines and
facilities subject to review and approval by the Public Works
Department and City Engineer.
D. Naming of plat.
2. Legal documents required:
A. Title opinion addressed to the City. All owners, mortgage holders or
others with property interest indicated therein shall sign the plat and
all other documents affected by such interest.
B. The applicant must provide certified copies of all recorded easements
currently affecting the property.
C. Signed and executed Road Easement to be granted over all driveways
on the site which may in the future be used public roadway, legal
description to be provided by the developer subject to approval by the
Public Services Director.
D. Signed and executed Temporary Road Construction Easement over the
easterly 15 feet of Lot 2 in favor of Mn/DOT in relation to future
reconstruction of the Brown Road/U.S. 12 intersection.
E. Signed and executed Developers Agreements for construction of
improvements within Lots 1 and 2.
Page 5 of 8
3. Plat approval fees to be paid: Total due: $35,910.00
A. Final plat fee = $200.00
B. Legal review and filing fees for subdivision and associated documents
= $200.00
C. Park Dedication Fee for office site (Lot 1, Block 1) in the amount of
$35,510 (2.68 acres at $13,250 per acre).
Adopted by the City Council of the City of Orono, Minnesota at a regular
meeting held this 22nd day of October, 2001
ATTEST:
Linda S. Vee, City Clerk Barbara A. Peterson, Mayor
Page 6 of 8
STATE OF MINNESOTA
COUNTY OF HENNEPIN
The foregoing instrument was acknowledged before me on this 8th day of October, 2001
by Barbara A. Peterson, Mayor of the City of Orono, a Minnesota municipal corporation and
said instrument was executed on behalf of the City.
Notary Public
STATE OF MINNESOTA
COUNTY OF HENNEPIN
The foregoing instrument was acknowledged before me on this day of
October, 2001 by Linda S. Vee, City Clerk of the City of Orono, a Minnesota municipal
corporation and said instrument was executed on behalf of the City.
Notary Public
Page 7 of 8
STATE OF MINNESOTA
COUNTY OF HENNEPIN
On this day of , 20 ,
personally appeared before me,
who is personally known to me
whose identity I proved on the basis of
whose identity I proved on the oath/affirmation of
, a credible witness
and who executed the foregoing instrument, and acknowledged that he/she/they executed the
same as his/her/their free act and deed.
Notary Public
STATE OF MINNESOTA
COUNTY OF HENNEPIN
On this day of , 20 ,
personally appeared before me,
who is personally known to me
whose identity I proved on the basis of
whose identity I proved on the oath/affirmation of
, a credible witness
and who executed the foregoing instrument, and acknowledged that he/she/they executed the
same as his/her/their free act and deed.
Notary Public
Page 8 of 8
Draft 9/27/01
Revised 10-18-01
A RESOLUTION GRANTING
GENERAL DEVELOPMENT PLAN APPROVAL
FOR PLANNED UNIT DEVELOPMENT NO. 2
FOR ORONO AMBAR, L.L.C.
AND APPROVING THE PLAT OF ORONO AMBAR
- FILE #2640/2641
WHEREAS, the City of Orono is a municipal corporation organized and existing
under the laws of the State of Minnesota; and
WHEREAS,the City Council of the City of Orono(hereinafter"City Council")has
adopted subdivision and land development regulations for the orderly, economic and safe
development of land within the City; and
WHEREAS, the City Council has considered the application by Orono Ambar,
L.L.C. for subdivision and development by the Planned Unit Development process of property
located within Outlot F, Sugar Woods, Hennepin County, Minnesota; and
WHEREAS, on March 12, 2001 the City Council adopted Resolution No. 4619
granting General Concept Plan Approval for the proposed development, which approval includes
the following elements:
1. Subdivision platting of Outlot F to create two developable building lots;
2. Rezoning of each newly created lot; Lot 1 rezoned from B-1 Retail Sales Business
District to B-6 Highway Commercial District,and Lot 2 rezoned from B-1 to RPUD
Residential Planned Unit Development District.
3. Comprehensive Plan amendment to re-guide Lot 2 from Commercial to Residential
use.
4. Commercial site plan approval and conditions for proposed office building on Lot 1.
5. Residential site plan review and conditions for proposed senior housing building on
Lot 2.
6. Use of TIF financing for development of Senior Housing on Lot 2; and
WHEREAS, on October 24, 2001 the Metropolitan Council is expected to grant
approval of the Orono 2000-2020 Community Management Plan including the re-guiding of lot 2
from commercial to residential use; and
Page 1 of 7
WHEREAS, the Developer has submitted an executed Development Agreement
relating to the Orono Woods Apartments between City of Orono, Orono Housing and
Redevelopment Authority (hereinafter "HRA"), and Orono Senior Housing LLC for the City
Council's consideration and final execution,which agreement sets forth the terms and conditions for
the development of Senior Housing on Lot 2,including acquisition of the land by the HRA, ground
lease to the Developer, Tax Increment Financing and issuance by the City of Multifamily Senior
Housing Revenue Bonds; and
WHEREAS, the Developer has submitted executed Planned Unit Development
Agreements 2A and 2B providing for the installation of certain improvements as a condition of site
plan approval for the construction of an Office Building on Lot 1 and a Senior Housing Building on
Lot 2 respectively,and which agreements document the general and detailed conditions for use and
development of the property; and
WHEREAS, theDeveloper
has submitted an executed Road, Drainage and Utility
easement over the portions of driveways in Lots 1 and 2 that provide potential future frontage road
connections between Brown Road, Wayzata Boulevard, and properties to the west; and
WHEREAS, the Developer has completed all other requirements of the platting
regulations of the City including:
1. Completion of all platting requirements of Preliminary Plat Resolution No.
2. Dedication on the plat of Drainage and Utility Easements,including dedication of a
utility easement to allow for replacement of the existing municipal sewer line which
must be relocated outside of the MnDOT right-of-way and onto Lot 2.
3. Submittal of Minnehaha Creek Watershed District(MCWD)permit(No. )
approving the grading and stormwater management facilities plan for Lots 1 and 2
per the Grading, Drainage and Erosion Control Plan, Sheet C3-1 dated 8/16/01.
4. Submittal of the necessary MnDOT approval for the right-in, right-out access to
Wayzata Boulevard, and confirmation that the MnDOT stormwater pond located
southeast of Lot 2 has the capacity to accommodate the proposed drainage from
development on Lots 1 and 2..
Page 2 of 7
5. Submittal of an executed Temporary Construction Easement in favor of MnDOT
along the easterly 15 feet of Lot 2 to accommodate the planned future changes to the
intersection of Brown Road North and Wayzata Boulevard associated with the re-
routing of Highway 12; and
6. Payment to the City of Park Dedication Fee for the development of Lot 1 in the
amount of$35,510.
7. Payment to the City for the legal review and filing of the plat agreements,easements
and covenants in the amount of$200.
8. Payment of the final plat fee in the amount of$200.
WHEREAS,for development staging purposes the Developer has divided the project
into two phases,Phase 1 being the Senior Housing component on Lot 2,and Phase 2 being the Office
component on Lot 1, the intent being to commence Phase 1 construction in late 2001 and Phase 2
construction in 2002; and
WHEREAS, City staff and consultants have reviewed the plans for this
comprehensive application and hereby specify approval of each enclosed plan and identify them as
part of the official record for the Orono Ambar subdivision and Planned Unit Development No. 2:
1. Approval of site plan for Phase 1 & 2 per Site Plan per Sheet C2-1 dated 8/16/01.
2. Approval of Grading,Drainage and Erosion Control Plan for Phases 1 &2 per Sheet
C3-1 dated 8/16/01, subject to the additional requirements of the MCWD in Permit
No. ,and subject to the additional requirements specified by City Engineer Tom
Kellogg in his letter dated October 9, 2001.
3. Approval of Utility Plan for Phases 1 & 2 per Sheet C4-1 dated 8/16/01,subject to
the additional requirements specified by City Engineer Tom Kellogg in his letter
dated October 9, 2001.
4. Approval of Grading,Street and Utility Detail for Phases 1 &2 per Sheets C9-1 and
C9-2 dated 8/16/01,subject to the additional requirements specified by City Engineer
Tom Kellogg in his letter dated October 9, 2001.
Page 3 of 7
5. Approval of Landscaping Plan for Phase 2 only per Sheet LA-1 dated 8/19/01,subject
to the additional requirements specified by Wally Case in his letter dated October_,
2001.
6. Acceptance of floor plan and facade elevations for the Senior Housing building on
Lot 2 (Phase 1 only) per Sheets A3.1 through A3.5 by MHWB Architects and
Planners dated 9/19/01.
7. Approval of site Signage Plans per Sheet A9.7(undated)and Lighting Plan per Sheet
dated
8. Preliminary approval of building design plans for the Office building on Lot 2(Phase
2) as described and documented in Resolution No. 4619.
NOW,THEREFORE,BE IT RESOLVED that based on the findings of Resolution
No. 4619, the City Council of the City of Orono does hereby approve the plat of Orono Ambar,
Hennepin County, Minnesota and grants General Development Plan Approval for Planned Unit
Development No. 2, subject to the following conditions:
1. General Development Plan Approval is granted subject to conditions established
within Resolution 4619 and subject to the conditions established within the
Development Agreement, PUD 2A and 2B Agreements, TIF financing documents,
and other pertinent documents.
2. Upon the final approval and execution of the the resolution approving the plat of
Orono Ambar, the City Council of Orono shall formally approve an ordinance
amending the official zoning map of the City to rezone Lot 1,Orono Ambar from B-1
Retail Sales Business District to B-6 Highway Commercial District, and to rezone
Lot 2, Orono Ambar, from B-1 Retail Sales Business District to RPUD Residential
Planned Unit Development District,and amending the Orono Zoning Code by adding
language establishing Planned Unit Development No. 2 (PUD-2)to include Lots 1
and 2, Orono Ambar.
Page 4 of 7
3. Upon execution of the final plat of Orono Ambar, the City Council shall direct the
Mayor and Clerk to execute other documents required by this subdivision and PUD
rezoning, including but not limited to the following: "Development Agreement
Relating to Orono Woods Apartments(Including Tax Increment Financing District
No. 1-1)Between City of Orono,Orono Housing and Redevelopment Authority and
Orono Senior Housing , LLC"; "Planned Unit Development No. 2A Agreement for
Orono Ambar Office Building"; "Planned Unit Development No.2B Agreement for
Orono Woods Apartments"; and any documents related to the TIF financing and
issuance of the Multifamily Senior Housing Revenue Bonds.
4. Final building design plans for the Office building on Lot 1 (Phase 2)shall be subject
to City Council review and approval prior to issuance of permits for said building.
5. The aforesaid plat shall be filed by the City of Orono with the Hennepin County
Registrar of Titles Office on or before April 22, 2002 together with a certified
original copy of this resolution and executed copies of the agreements, easements,
and covenants pertinent thereto.
FURTHER, BE IT RESOLVED that the City Council hereby declares that the
conditions of Resolution No.3347 vacating an existing unused drainage and utility(sewer)easement
within Outlot F, Sugar Woods,have been fulfilled, and said vacation shall be effective upon filing
of Resolution No. 3347 with the Hennepin County Registrar of Titles Office.
The approval granted by this Resolution shall expire if the plat has not been filed by
the date specified above. In that event, it will be necessary to file a new application with the City
of Orono for subdivision review.
Page 5 of 7
Adopted by the City Council of Orono this 22nd day of October, 2001.
ATTEST:
Linda S. Vee, City Clerk Barbara A. Peterson, Mayor
STATE OF MINNESOTA
COUNTY OF HENNEPIN
The foregoing instrument was acknowledged before me on this 8th day of October,2001 by
Barbara A. Peterson, Mayor of the City of Orono, a Minnesota municipal corporation and said
instrument was executed on behalf of the City.
Notary Public
STATE OF MINNESOTA
COUNTY OF HENNEPIN
The foregoing instrument was acknowledged before me on this day of October,
2001 by Linda S. Vee, City Clerk of the City of Orono,a Minnesota municipal corporation and said
instrument was executed on behalf of the City.
Notary Public
Page 6 of 7
STATE OF MINNESOTA
COUNTY OF HENNEPIN
On this day of , 20 ,
personally appeared before me,
who is personally known to me
whose identity I proved on the basis of
whose identity I proved on the oath/affirmation of
a credible witness
and who executed the foregoing instrument,and acknowledged that he/she/they executed the same
as his/her/their free act and deed.
Notary Public
STATE OF MINNESOTA
COUNTY OF HENNEPIN
On this day of , 20 ,
personally appeared before me,
who is personally known to me
whose identity I proved on the basis of
whose identity I proved on the oath/affirmation of
a credible witness
and who executed the foregoing instrument, and acknowledged that he/she/they executed the same
as his/her/their free act and deed.
Notary Public
Page 7 of 7
Revised Draft 7/31/01
Revised Draft 9/27/01
CITY OF ORONO
HENNEPIN COUNTY, MINESOTA
PLANNED UNIT DEVELOPMENT NO. 2A AGREEMENT FOR
ORONO AMBAR OFFICE BUILDING
(Name of Development)
ORONO AMBAR, LLC., A MINNESOTA CORPORATION
(Name of Developer)
THIS AGREEMENT,made and entered into this day of ,2001,by and between
the City of Orono, a municipal corporation organized and existing under the laws of the State of
Minnesota(hereinafter called "City"), and Orono Ambar,LLC, a Minnesota Corporation, its heirs,
successors and assigns (hereinafter called "Developer").
WITNESSETH:
WHEREAS, the Developer has made application to the City Council for approval of a
Planned Unit Development rezoning application(PUD)including a comprehensive plan amendment,
subdivision to create two buildable lots, and commercial site plan review, for the purpose of
developing a 62-unit Senior Housing residential building and a 25,000 s.f. Professional Office
building; and
WHEREAS, on March 12, 2001 the City Council granted Concept Plan Approval for
development of a 62-unit building for senior housing use (the "Senior Housing Building") and a
25,000 s.f.general office building(the"Office Building")per Resolution No.4619,on the condition
that the Developer enter into this agreement to provide for conformance with the City's Planned Unit
Development(PUD)ordinances,to provide for the installation and maintenance of improvements,
and to establish and document the conditions of approval for the Tax Increment Financing (TIF)
associated with the Senior Housing element of the development.
Page 1 of 14
NOW, THEREFORE, in consideration of the premises, and of the actual promises and
conditions hereinafter contained, it is hereby agreed as follows:
A. General Terms and Conditions
1. Property Description. Outlot F, Sugar Woods according to the plat thereof on file in the
office of the Registrar of Titles of Hennepin County,Minnesota(sometimes herein referred
to as the "Property"). The property description to which this Agreement for the Office
Building component of the development applies is Lot 1, Block 1, Orono Ambar.
2. Zoning.The property is zoned as a Planned Unit Development under the Orono planned unit
development ordinance with underlying B-6 zoning for the office building component on Lot
1.
3. Permitted Uses. Within Lot 1 the only permitted principal structure is the 25,000 gross s.f.,
2 story office building with underground parking in the basement level and additional surface
parking as depicted in the preliminary site plan (attached hereto as Exhibit A) and
preliminary approved building plans and elevations (attached hereto as Exhibit B). The
permitted use of the office building is general office uses which may include business and
professional offices of a general nature, and may include a clinic for human care on an
outpatient basis only. The office building shall not be used for general retail use,except that
retail uses customarily accessory to the general office use may occur in no more than twenty
percent(20%)of the office building gross floor area. Other uses shall not be allowed except
by amendment of this PUD agreement.
Within Lot 1 the only accessory structures allowed shall include: a) Trash enclosures
attached to the principal structures, constructed of materials comparable to and compatible
with those of the principal structure; and b)Monument identification signs per the approved
plans. No other accessory structures are permitted except by amendment of this agreement.
Users shall be obligated to conform to all applicable Orono ordinances and to the provisions
of this PUD agreement. The foregoing uses are permitted pursuant to this PUD agreement.
4. Site Access. Internal circulation for Lot 1 shall be via a new private road to be developed
within Lots 1 and 2, Block 1, Orono Ambar. The private road shall serve the uses for both
Lots 1 and 2.The easterly access point for the private road shall be at Brown Road North per
the site plan attached as Exhibit A. The easterly access point shall allow full entrance and
exit movements to North Brown Road.
Page 2 of 14
A single direct access to Highway 12 shall be developed at a location approximately 500 feet
west of the intersection of Brown Road and Highway 12.This direct access shall be restricted
to westbound right-in/right-out turning movements, and shall be subject to MnDOT design
approval.
A third accesspoint located near the northwest corner of Lot 1 shall provide for future access
to a future public road which may be constructed within Outlot D, Sugar Woods. At such
time that a public road is constructed within said Outlot D, the City shall have the right to
connect such public road to the internal road system within Lots 1 and 2 for the purpose of
providing additional ingress/egress options for Lots 1 and 2 as well as provide ingress/egress
options for properties west of Lot 1.
The Developer shall grant to the City public road, drainage and utilities easements over the
private road corridor including all surface parking areas,in order that future public use of the
roadways is ensured in the event that a future connection to the west is established.
Developer shall grant cross easements between Lots 1 and 2 to ensure full use of the internal
private road system until such time that the City exercises its easement rights to convert all
or a portion of the internal road system to a public road status. It is specifically agreed that
the City is not obligated to maintain the private internal road system until such time that the
City chooses to convert all or a portion of the internal road system to a public road, and
construction of an access connection to a public road in Outlot D, Sugar Woods shall not
automatically terminate the private road status of the internal road system.
Off-site access improvements that are the responsibility of the developer shall include
establishment of the right-in/right-out access curbing for the southerly access.Any turn-lane
or acceleration lane improvements or re-striping that may be required by MnDOT for that
access shall be the responsibility of the City. Other off-site access improvements that will be
the responsibility of the City shall include establishment of the semaphore and related
improvements at the intersection of Brown Road North and Highway 12.
5. Building Design and Construction. The office buildings on Lot 1 shall be constructed
according to the plans on filc with the City which shall be subject to review and approval by
the City Council prior to issuance of building permits. On Lot 1, the preliminary plans
indicate a two story office building with parking on the basement level. The second story
is set back from the first story at the north end of the building to reduce impacts to the
residential neighborhood to the north. Windows are also minimized on the north end of the
office building to reduce impacts on neighboring properties. The roof is a standard shingle
Page 3 of 14
hip roof with pitch established at 5:12 to minimize the impacts of building height. The
exterior of the office building shall be of materials consistent with the approved preliminary
plans attached as Exhibit D. Any accessory structures on Lot 1, if approved, shall be of the
same exterior finish and colors as the office building.
Construction of the office building on Lot 1 shall be in conformance with the building codes
and regulations adopted by the City of Orono. Any changes to the gross square footage,
footprint/wall/roof dimensions or defined building height shall require a prior amendment
to this Agreement.
6. Landscaping. The A landscaping plan to be attached to this Agreement as Exhibit E shall
be submitted by the Developer prior to issuance of building permits, and upon review and
approval by the City Council shall be strictly adhered to. Within Lot 1,the Developer shall
establish and maintain suitable vegetative screening along the northerly boundary of the
property sufficient to substantially block direct view of most vehicle headlights from the
adjoining Sugar Woods residential properties. Within Lot 1,the Developer shall provide and
maintain vegetative screening within the defined rear yard of the office building to minimize
the visual impact on the adjoining residential properties. Within Lot 1, Developer shall
minimize to the greatest extent possible the removal of existing trees and vegetation along
the perimeters of the property, and where feasible shall retain existing trees along the
southerly boundary during construction until their removal is necessary to complete the
approved landscape plan. The construction limits shall be clearly marked with adequate
fencing to prevent construction damage or disturbance of any trees and vegetation outside
of the defined construction limits. Any retaining walls to be constructed on Lot 1 as shown
on the approved plans shall be of decorative concrete keystone-type block construction of an
earthtone color and shall be limited in height and length to the extent necessary to
accomplish their intended purpose.
7. Lighting. Site lighting shall adhere to thea approved lighting plan to be attached to this
agreement as Exhibit F and which which shall be submitted by the developer prior to
issuance of building permits, and upon review and approval by the City Council shall be
strictly adhered to. atta.,lid hereto as Exhibit F. All lighting fixtures shall be located and
constructed so as to direct light away from the adjacent residential neighborhood.
8. Signage. Signage on the site shall be limited to the required traffic control signage, and to
monument signs provided by the developer at each entrance to the site. The signage shall
be limited to a company or development name and/or logo and street address on the
Page 4 of 14
monument signs. Design and materials of monument signage shall adhere to the approved
Signage Plan to be attached hereto as Exhibit G upon review and approval by the City
Council. Parking and traffic control signage shall be installed subject to City staff and City
Engineer approval,including required stop signs within the parking lots and service drive to
ensure safety of pedestrians in parking areas and crossing points.
B. Installation and Maintenance of Improvements
9. Improvements: In accordance with the policies and ordinances of the City of Orono, the
following described public or private improvements (hereinafter collectively called the
"Improvements")shall be constructed,installed and maintained by the Developer according
to the terms and conditions contained in this PUD Agreement:
(a) Site grading, roadways and driveways, curb and gutter, parking lots, sidewalks,
retaining walls and all necessary erosion control measures per the approved
preliminary Grading, Drainage & Erosion Control Plan attached hereto as Exhibit
B (hereinafter called "site grading improvements"), subject to submittal of a Final
Grading, Drainage and Erosion Control Plan for City approval prior to issuance of
building permits;
(b) Sanitary sewer and water lines and facilities (hereinafter called "sewer and water
improvements")and storm sewer lines and facilities(hereinafter called"stormwater
improvements")per the approved preliminary Utility Plan attached hereto as Exhibit
C. Relocation of the existing gravity sewer line extending from Brown Road North
to the lift station near the southeast corner of Lot 2, as required by the City pursuant
to the letters attached hereto as Exhibits I and J,shall be the responsibility of Sidney
B. Rebers, seller of Outlot F, Sugar Woods.
(c) Underground naturalgas,electric,cable and telephone service to be arranged bythe
g p g
Developer with the utility companies involved (hereinafter called the "other utility
improvements");
(d) Landscaping and site revegetation improvements per the approved Landscaping Plan
to be attached hereto as Exhibit E(hereinafter called"landscaping improvements").
(e) Traffic control signage subject to approval by the City Engineer and Public Services
Director.
Page 5 of 14
(f) Any additional improvements listed within the Site Improvements Cost Estimate
to be attached hereto as Exhibit H.
10. Construction Plans: Detailed plans and specifications for the complete installation of the
Improvements shall be submitted by the Developer for the approval of the City prior to
issuance of applicable City permits. The Plans and Specifications shall conform to all
current City standards for all applicable work and shall comply with the terms of this PUD
Agreement.
11. Construction of Improvements:
(a) Commencement Date - The construction of Improvements shall begin no later than
December 31, 2002.
(b) Completion Date-All Improvements shall be completed no later than December 31,
2003.
(c) Contractors - The Developer shall select, retain and supervise the Contractor(s)
responsible for Improvement construction. The City reserves the right to require
satisfactory proof of successful experience and adequate financial status of any such
contractor. Where required by City ordinance, the contractor shall first obtain a
license from the City.
(d) Pre-Construction Conference - Prior to the start of any construction, the Developer
and the Developer's Contractor shall meet with the responsible City official to review
construction plans and schedules.
(e) Permits-Prior to the start of any construction,the Developer's Contractor shall apply
for and receive all necessary permits from the City and/or government agencies
having jurisdiction.
(0 Permits-Prior to the start of any construction,the Developer's Contractor shall apply
for and receive all necessary permits from the City and/or government agencies
having jurisdiction. Required City permits relative to the Improvements include the
following: Site Grading Permit; Utility Construction Permit; Sewer and Water
Connection Permits.
Page 6 of 14
(g) Construction - The construction, installation and materials shall be in accordance
with the plans and specifications approved by the City.
(g) Insurance - The Developer will cause each person who constructs and installs any
Improvement to maintain complete insurance coverage including Workmen's
Compensation, Liability and Property Damage.
12. Performance Deposit: For the purposes of assuring to the City that the Improvements will
be completed according to the terms of this agreement, and that the Developer will pay or
will cause to have paid all claims for work done and materials and supplies furnished, the
Developer or his General Contractor will deposit with the City prior to issuance of site
grading and building permits an irrevocable letter of credit in a form satisfactory to the City
providing that the City is able to draw upon such letter of credit in its sole discretion to
complete the Improvements if the Developer fails to satisfactorily complete the work prior
to the completion date specified in Section 11 above. The amount of such deposit is
$ per the schedule to be attached to this document as Exhibit H.The amount of such
deposit shall not be reduced before substantial completion of the Improvements. The letter
of credit shall expire no sooner than six months after the completion date specified in Section
11 above.
13. Fees and Expenses: The Developer agrees to pay all City fees required per the current City
Fee Schedule and further agrees to completely reimburse the City for all the variable
additional expenses it incurs in regard to the review and approval of the Improvements
including, but not limited to, direct City payroll and overhead, costs, and fees paid to
consultants and other professionals, which are not covered by City application fees.
14. Maintenance. The Developer shall be responsible for maintenance of all privately
owned Improvements including roads, sidewalks, and storm sewers, regardless whether
easements for such improvements have been granted to the City. Developer shall
permanently maintain site lighting, signage and landscaping consistent with the approved
Plans for said improvements. Upon satisfactory completion of construction of sewer and
water mains on the site, developer shall transfer ownership of said main lines to the City,
and the City shall henceforth maintain said sewer and water mains. Developer shall be
responsible for maintenance of all sewer and water lines that are defined as "connections"
as indicated on the approved Utility Plan. Developer shall be responsible for ensuring that
the appearance and design of the building are maintained per the approved building and
construction plan, and shall be responsible for ensuring that the site amenities and features
as shown on the approved site plan are maintained per said plan.
Page 7 of 14
15. Developer Representations and Covenants. The Developer hereby makes the following
representations and covenants:
(a) The Developer has the legal authority and power to enter into this Agreement.
(b) The Developer reasonably expects to obtain financial resources sufficient to enable
the completion of the Improvements.
(c) The Developer will, subject to the requirements of Section B - Installation and
Maintenance of Improvements hereof, construct, operate and maintain the
Improvements in accordance with the terms of this Agreement and all local,state and
federal laws and regulations, and will construct or pay the costs of construction of
any site improvements, utilities, landscaping, stormwater management facilities,
roads,parking facilities which are necessary in connection with the construction and
such improvements.
(d) At such time or times as may be required by law,the Developer will have complied
with all local, state and federal environmental reviews, licenses, and will be in
compliance with the requirements of federal, state, and local authority.
(e) The Developer will obtain, in a timely manner, all required permits, licenses and
approvals,and will meet,in a timely manner,all requirements of all local, state,and
federal laws and regulations which must be obtained or met before the Improvements
may be constructed.
(f) It is intended and agreed that the covenants provided in this Section shall be
covenants running with the land not the owner or developer.
16. City Representations and Covenants: The City makes the following representations as the
basis for the undertaking on its part here in contained:
(a) The City is authorized by law to enter into this Agreement and to carry out its
obligations hereunder.
(b) The City will,in a timely manner,subject to all notification requirements,review and
act upon all submittals and application of the Developer and will cooperate with the
effort of the Developer to secure the granting of any permit,license,or other approval
Page 8 of 14
required to construct and operate the Improvements;provided,however,that nothing
contained in this subparagraph shall be construed to limit in any way the reasonable
and legitimate exercise of the City's discretion in considering any submittal or
application.
(c) The Development Property is zoned for purposes which include the Development as
proposed. The city has issued all necessary commercial site plan review approvals,
and plat approval of Orono Woods Addition.
17. Compliance. At any time and from time to time the Developer may request that the City
provide the Developer a certificate certifying that that the terms and provisions of this
Agreement have been complied with and that this PUD Agreement is in full force and effect
with respect to the development for the purpose of facilitating sale, mortgage, insurance or
other matters. To the extent that there be any bona fide defaults in such compliance, the
Developer shall be afforded a reasonable time to bring the development into conformance,
and thereafter the City shall be obligated to provide such certificate.
18. Binding Effect: The terms and provisions hereof shall be binding upon and inure to the
benefit of the heirs,representatives,successors and assigns of the parties hereto and shall be
binding deemed covenants running with the land. References herein to Developer, if there
be more than one, shall mean each and all of them. This agreement at the option of the City
shall be placed of record so as to give notice hereof to any subsequent purchasers and
encumbrancers of all or any part of the property.
19. Notices: Whenever in this agreement it shall be required or permitted that notice or demand
be given or served by either party to this agreement to or on the other party, such notice or
demand shall be delivered personally or mailed by United States certified mail(return receipt
requested)to the addresses set forth below. Such notice or demand shall be deemed timely
given when delivered personally or when deposited in the mail in accordance with the above.
Notice to City Notice to Developer
City of Orono Frank Dunbar, Chief Manager
Clerk/Administrator Orono Ambar, LLC
P.O. Box 66 c/o Dunbar Development Corporation
Crystal Bay, MN 55323 5000 Glenwood Avenue
Golden Valley, MN 55422
Parties may substitute notice provisions upon notice to other parties.
Page 9 of 14
20. Incorporation by Reference: All plans, special provisions, proposals, specifications and
contracts for the Improvements furnished and let pursuant to this agreement shall be and
hereby are made a part of this agreement by reference as fully as if set out herein in full.
21. Disclaimer by City: It is understood and agreed that the City, the City Council, and the
agents and employees of the City shall not be personally liable or responsible in any manner
to the Developer or Developer's contractors, subcontractors, materialmen, laborers, or any
other person, firm or corporation, for any debt, claim, demand, damages, actions, or causes
of action of any kind or character, arising out of or by reason of the execution of this
agreement or the performance and completion of the Improvements.
22. Hold Harmless and Indemnification: The Developer shall indemnify and hold harmless the
City,the City Council,and the agents and employees of the City from and against all claims,
damages,losses or expenses,including attorney fees,which the City,City Council and agents
and employees of the City may suffer or for which it may be held liable, arising out of or
resulting from the assertion against them of any claims,debts or obligations in consequence
of the performance of this agreement by the Developer, its employees, agents or sub-
contractors, whether or not caused in part by a party indemnified hereunder.
23. Remedy for Default: Default by the Developer of any of the terms of this agreement shall
automatically result in the suspension or withholding of all permits, licenses, occupancy
certificates or other authorizations issued by the City in connection with the property included
in this development.The remedies afforded to the City under this Section shall be in addition
to any other remedies to which the City may be entitled by law or other agreement. Default
by the City shall entitle the Developer to seek injunctive/mandatory relief through the courts,
together with other relief as the law may provide.
24. Right of Entry. The Developer hereby grants to the City, its agents and its employees, the
right to enter on the property for the specific purpose of constructing or completing any and
all of the agreed upon Improvements should the Developer not complete those Improvements
by the date specified in Section 11.
25. Controlling Agreement. To the extent that there is any difference or ambiguity between this
Planned Unit Development Agreement and other agreements between the City and the
Developer, this Planned Unit Development Agreement shall control.
Page 10 of 14
IN WITNESS WHEREOF,the City and the Developer have caused this agreement to be
duly executed on the day and year first above written.
In Presence of: CITY OF ORONO
By:
(Mayor)
By:
(City Clerk)
DEVELOPER
By:
(Title)
Reviewed for Administration:
Date: By:
(Planning Director)
By:
(City Administrator)
This instrument was drafted by:
City of Orono
2750 Kelley Parkway
P.O. Box 66
Crystal Bay, MN 55356
Page 11 of 14
(NOTARIZATION PAGES)
Page 12 of 14
(NOTARIZATION PAGES)
LIST OF EXHIBITS
Page 13 of 14
Exhibit A Site Plan
Exhibit B Grading, Drainage and Erosion Control Plan
Exhibit C Utility Plan
Exhibit D Building Plans & Elevations
Exhibit E Landscaping Plan
Exhibit F Lighting Plan
Exhibit G Signage Plan
Exhibit H Site Improvements Cost Estimate
Exhibit I Letter by Hugh M. Maynard dated 4/24/01 regarding
Sewer Replacement
Exhibit J Agreement for Sewer Replacement (City to draft,
Rebers to sign)
Page 14 of 14
Revised Draft 7/30/01
Revised 8/13/01
Revised 9/24/01
Revised 10/17/01
CITY OF ORONO
HENNEPIN COUNTY,MINESOTA
PLANNED UNIT DEVELOPMENT NO. 2B AGREEMENT FOR
ORONO WOODS APARTMENTS
(Name of Development)
ORONO SENIOR HOUSING L.L.C.
(Name of Developer)
THIS AGREEMENT, made and entered into this day of , 2001, by and
between the City of Orono, a municipal corporation organized and existing under the laws of the
State of Minnesota (hereinafter called "City"), and Orono Senior Housing, LLC, a wholly owned
subsidiary of Wedum Foundation, a Minnesota non-profit corporation, its heirs, successors and
assigns (hereinafter called "Developer").
WITNESSETH:
WHEREAS, the Developer has made application to the City Council for approval of a
Planned Unit Development rezoning application(PUD)including a comprehensive plan amendment,
subdivision to create two buildable lots, and site plan review and approval, for the purpose of
developing a 62-unit Senior Housing residential building; and
WHEREAS,the Senior Housing component ofthe development meets the goals established
by the City of Orono in its Community Management Plan for provision of lifecycle and affordable
housing for residents 62 years of age and older; and
WHEREAS, because the Senior Housing Building component of the Development meets
housing goals established by the City of Orono, the City Council has agreed to provide financial
assistance to the Developer for the Senior Housing component,via Tax Increment Financing. Under
the terms of this agreement and the laws of the State of Minnesota, certain costs to be incurred by
the Developer are eligible for TIF reimbursement, including but not necessarily limited to land
Page 1 of 17
acquisition,road/curb/gutter and storm sewer improvements,grading and related site improvements,
sewer connection fees, and park dedication fees. Certain additional costs to be incurred by the City
in direct relation to the Senior Housing Building component are eligible for TIF reimbursement,such
costs including but not necessarily limited to sidewalk expansion and replacement, public street
lighting,burial of existing overhead power lines,installation of semaphore and related improvements
at Brown Road North and Highway 12, and re-striping and/or widening of Highway 12 to
accommodate the south access point; and
WHEREAS, the City of Orono has adopted a development program and tax increment
financing plan to finance a portion of the development costs for the Senior Housing component of
the development; and
WHEREAS, the City of Orono has created and established a Tax Increment Financing
District(the "TIF District") pursuant to the authority granted by Minnesota Statutes; and
WHEREAS, on March 12, 2001 the City Council granted Concept Plan Approval for
development of a 62-unit building for senior housing use (the "Senior Housing Building") and a
25,000 s.f.general office building(the"Office Building")per Resolution No.4619,on the condition
that the Developer enter into this agreement to provide for conformance with the City's Planned Unit
Development(PUD)ordinances,to provide for the installation and maintenance of improvements,
and to establish and document the conditions of approval for the Tax Increment Financing (TIF)
associated with the development.
NOW, THEREFORE, in consideration of the premises, and of the actual promises and
conditions hereinafter contained, it is hereby agreed as follows:
A. General Terms and Conditions
1. Property Description. Outlot F, Sugar Woods according to the plat thereof on file in the
office of the Registrar of Titles of Hennepin County,Minnesota(sometimes herein referred
to as the "Property"). The property description to which this Agreement for the Senior
Housing component of the development applies is Lot 2, Block 1, Orono Ambar.
2. Zoning.The property is zoned as a Planned Unit Development under the Orono planned unit
development ordinance with underlying RPUD zoning for the Senior Housing component
on Lot 2.
Page 2 of 17
3. Permitted Uses. Within Lot 2 the only permitted principal structure is the 3-story 62-unit
Senior Housing Building with underground parking in the basement level and additional
surface parking as depicted in the approved site plan (Exhibit A) and approved building
plans and elevations(Exhibit D).This building is to be used solely for Senior Housing under
the terms of this agreement.
Within Lot 2 the only accessory structures allowed shall include: a) Trash enclosures
attached to the principal structure, constructed of materials comparable to and compatible
with those of the principal structure; and b)Monument identification signs per the approved
plans. Within Lot 2, an accessory recreational structure such as a gazebo shall be allowed
subject to City Council approval of the design, size and location but without the need to
amend this PUD agreement. No other accessory structures are permitted except by
amendment of this agreement.
Users shall be obligated to conform to the provisions of this PUD agreement. The foregoing
uses are permitted pursuant to this PUD agreement.
4. Site Access. Internal circulation for Lot 2 shall be via a new private road to be developed
within Lots 1 and 2, Block 1, Orono Ambar. The private road shall serve the uses for both
Lots 1 and 2.The easterly access point for the private road shall be at Brown Road North per
the site plan attached as Exhibit A. The easterly access point shall allow full entrance and
exit movements to North Brown Road.
A single direct access to Highway 12 shall be developed at a location approximately 500 feet
west of the intersection of Brown Road and Highway 12.This direct access shall be restricted
to westbound right-in/right-out turning movements, and shall be subject to MnDOT design
approval.
A third access point located near the northwest corner of Lot 1 shall provide for future access
to a future public road which may be constructed within Outlot D, Sugar Woods. At such
time that a public road is constructed within said Outlot D, the City shall have the right to
connect such public road to the internal road system within Lots 1 and 2 for the purpose of
providing additional ingress/egress options for Lots 1 and 2 as well as provide ingress/egress
options for properties west of Lot 1.
Page 3 of 17
The Developer shall grant to the City public road,drainage and utilities easements over the
private road corridor including all surface parking areas,in order that future public use of the
roadways is ensured in the event that a future connection to the west is established.
Developer shall grant cross easements between Lots 1 and 2 to ensure full use of the internal
private road system until such time that the City exercises its easement rights to convert all
or a portion of the internal road system to a public road status. It is specifically agreed that
the City is not obligated to maintain the private internal road system until such time that the
City chooses to convert all or a portion of the internal road system to a public road, and
construction of an access connection to a public road in Outlot D, Sugar Woods shall not
automatically terminate the private road status of the internal road system.
Access improvements that are the responsibility of the developer shall include establishment
of the right-in/right-out access curbing for the southerly access.Any turn-lane or acceleration
lane improvements or re-striping that may be required by MnDOT for that access shall be the
responsibility of the City. Other access improvements that will be the responsibility of the
City shall include establishment of the semaphore and related improvements at the
intersection of Brown Road North and Highway 12.
5. Building Design and Construction. The Senior Housing building on Lot 2 shall be
constructed according to the plans on file with the City. The plans indicate a 2-3 story, 62-
unit senior housing apartment building with parking on the basement level. The westerly 2/3
of the building is 3 stories in height,the easterly 1/3 is 2 stories in height. The building has
a standard shingle hip roof system at an established pitch of 5:12 to minimize the impacts
of building height. The exterior of the building shall be constructed from materials consistent
with the approved plans attached as Exhibit D. Any accessory structures on Lot 2, if
approved, shall be of the same exterior finish and colors as the senior housing apartment
building.
Construction of the building on Lot 2 shall be in conformance with the building codes and
regulations adopted by the City of Orono. Any changes to the gross square footage,
footprint/wall/roof dimensions, defined building height or number of dwelling units shall
require a prior amendment to this Agreement.
Page 4 of 17
6. Landscaping.The approved landscaping plan attached to this Agreement as Exhibit E shall
be strictly adhered to. The Developer shall provide vegetative screening within the defined
rear yard of the senior housing apartment building to minimize the visual impact on the
adjoining residential properties. Within Lot 2, Developer shall minimize to the greatest
extent possible the removal of existing trees and vegetation along the perimeters of the
property,and where feasible shall retain existing trees along the southerly boundary during
construction until their removal is necessary to complete the approved landscape plan. The
construction limits shall be clearly marked with adequate fencing to prevent construction
damage or disturbance of any trees and vegetation outside of the defined construction limits.
Retaining walls to be constructed on Lot 2 as shown on the approved plans shall be of
decorative concrete keystone-type block construction of an earthtone color and shall be
limited in height and length to the extent necessary to accomplish their intended purpose.
7. Lighting. Site lighting shall adhere to the approved lighting plan attached hereto as Exhibit
F. All lighting fixtures shall be located and constructed so as to direct light away from the
adjacent residential neighborhood.
8. Signage. Signage on the site shall be limited to the required traffic control signage, and to
monument signs provided by the developer at each entrance to the site. The monument
signage shall be limited to a company or development name and/or logo and street address.
Design and materials of monument signage shall adhere to the approved Signage Plan
attached hereto as Exhibit G. Parking and traffic control signage shall be installed subject
to City staff and City Engineer approval, including required stop signs within the parking
lots and service drive to ensure safety of pedestrians in parking areas and crossing points.
B. Installation and Maintenance of Improvements
9. Improvements. In accordance with the policies and ordinances of the City of Orono, the
following described public or private improvements (hereinafter collectively called the
"Improvements")shall be constructed,installed and maintained by the Developer according
to the terms and conditions contained in this PUD Agreement:
(a) Site grading, roadways and driveways, curb and gutter, parking lots, sidewalks,
retaining walls and all necessary erosion control measures per the approved Grading,
Drainage & Erosion Control Plan attached hereto as Exhibit B (hereinafter called
"site grading and roadway improvements");
Page 5 of 17
(b) Sanitary sewer and water lines and facilities (hereinafter called "sewer and water
improvements")and storm sewer lines and facilities(hereinafter called"stormwater
improvements") per the approved Utility Plan attached hereto as Exhibit C.
Relocation of the existing gravity sewer line extending from Brown Road North to
the lift station near the southeast corner of Lot 2,as required by the City pursuant to
the letter attached hereto as Exhibit I and the agreement attached hereto as Exhibit
J, shall be the responsibility of Sidney B. Rebers, seller of Outlot F, Sugar Woods.
(c) Underground natural gas, electric, cable and telephone service to be arranged by
Developer with the utility companies involved (hereinafter called the "other utility
improvements");
(d) Landscaping and site revegetation improvements per the approved Landscaping
Plan attached hereto as Exhibit E(hereinafter called"landscaping improvements").
(e) Traffic control signage subject to approval by the City Engineer and Public Services
Director.
The above Phase I Improvements are further detailed within the Site Improvements Cost
Estimate attached hereto as Exhibit H:
10. Construction Plans: Detailed plans and specifications for the complete installation of the
Improvements shall be submitted by the Developer for the approval of the City of Orono
prior to issuance of applicable City permits. The Plans and Specifications shall conform to
all current City standards for all applicable work and shall comply with the terms of this PUD
Agreement.
11. Construction of Improvements:
(a) Commencement Date - The construction of Improvements shall begin no later than
December 31, 2001.
(b) Completion Date-All Improvements shall be completed no later than December 31,
2002.
Page 6 of 17
(c) Contractors - The Developer shall select, retain and supervise the Contractor(s)
responsible for Improvement construction. The City reserves the right to require
satisfactory proof of successful experience and adequate financial status of any such
contractor. Where required by City ordinance, the contractor shall first obtain a
license from the City.
(d) Pre-Construction Conference - Prior to the start of any construction, the Developer
and the Developer's Contractor shall meet with the responsible City official to review
construction plans and schedules.
(e) Permits-Prior to the start of any construction,the Developer's Contractor shall apply
for and receive all necessary permits from the City and/or government agencies
having jurisdiction. Required City permits relative to the Improvements include the
following: Site Grading Permit; Utility Construction Permit; Sewer and Water
Connection Permits.
(f) Construction-The construction,installation and materials shall be in accordance with
the plans and specifications approved by the City.
(g) Insurance - The Developer will cause each person who constructs and installs any
Improvement to maintain complete insurance coverage including Workmen's
Compensation, Liability and Property Damage.
12. Performance Deposit: For the purposes of assuring to the City that the Improvements will
be completed according to the terms of this agreement, and that the Developer will pay or
will cause to have paid all claims for work done and materials and supplies furnished, the
Developer or his designated General Contractor will deposit with the City prior to the City's
issuance of site grading and building permits an irrevocable letter of credit in a form
satisfactory to the City providing that the City is able to draw upon such letter of credit in its
sole discretion to complete the Improvements if the Developer fails to satisfactorily complete
the work prior to the completion date specified in Section 11 above. The amount of such
deposit is $461,408 per the schedule attached to this document as Exhibit H. The amount
of such deposit shall not be reduced before substantial completion of the Improvements.The
letter of credit shall expire no sooner than six months after the completion date specified in
Section 11 above.
Page 7 of 17
13. Fees and Expenses: The Developer agrees to pay all City fees required per the current City
Fee Schedule and further agrees to completely reimburse the City for all the variable
additional expenses it incurs in regard to the review and approval of the Improvements
including, but not limited to, direct City payroll and overhead, costs, and fees paid to
consultants and other professionals, which are not covered by City application fees.
14. Maintenance: The Developer shall be responsible for maintenance of all privately
owned Improvements including roads, sidewalks, and storm sewers, regardless whether
easements for such improvements have been granted to the City. Developer shall
permanently maintain site lighting, signage and landscaping consistent with the approved
Plans for said improvements. Upon satisfactory completion of construction of sewer and
water mains on the site, Developer shall transfer ownership of said main lines to the City,
and the City shall henceforth maintain said sewer and water mains. Developer shall be
responsible for maintenance of all sewer and water lines that are defined as "connections"
as indicated on the approved Utility Plan. Developer shall be responsible for ensuring that
the appearance and design of the building are maintained per the approved building and
construction plan, and shall be responsible for ensuring that the site amenities and features
as shown on the approved site plan are maintained per said plan.
C. Senior Housing Duration
15. City Intent and Conditions for Senior Housing Building. It is the intent of the City of Orono
that the Senior Housing Building be used for the purpose of senior rental housing for persons
age 62 and older for the longest practicable period of time,with rental priority given to area
residents. In order to achieve this intent, the Developer agrees to the following conditions
which are hereby established as part of this PUD Agreement:
(a) In order to maximize the length of time that the City can exert control over the use
of the Senior Housing for its intended purpose, the City intends to purchase Lot 2,
Block 1, Orono Woods Addition from the Developer prior to the commencement of
construction for the sum of $1.00 (one dollar) and other good and valuable
considerations. The City will then lease said Lot 2 to the Developer/Building Owner
for a period of ninety-nine (99) years, at an annual rent of$1.00. The lease shall
include the following general terms:
1) The lease shall be written to prohibit rental to other than seniors during the
term of the lease.
Page 8 of 17
2) At the end of the 99-year lease term, the City will sell Lot 2 back to the
Developer/Owner for the sum of$1.00.
(b) During the 99 year term of the lease, the building shall be owned and operated by a
non-profit corporation.
(c) During the term of the TIF funding as described in this document,the Developer shall
limit the rental price of 20%of the units per the TIF Agreement,and all 62 units shall
be used only for housing of seniors age 62 and older,with rental preference given to
Orono residents,per the terms and conditions of the"Senior Housing Restriction"and
the "Orono Preference Requirement" as stated within that certain document entitled
"Development Agreement Relating to Orono Woods Apartments (Including Tax
Increment Financing District No. 1-1) Between City of Orono, Orono Housing and
Redevelopment Authority and Orono Senior Housing, LLC" (hereinafter the
"Development Agreement").
(d) The City has agreed to defer Sewer and Water Connection Fees in the amount of
$40,838 and Park Dedication Fees in the amount of$161,200 that would otherwise
be due at the time of development of the Senior Housing. Such fees (hereinafter
"deferred improvement costs")shall be payable only in the event that the Developer
violates the "Senior Housing Restriction" as set forth in the "Development
Agreement". In that event such fees shall be immediately due and payable together
with interest on the deferred amounts computed at the rate of 7%per annum from the
date of said"Development Agreement". If there is no incurred default under section
3.2 of the"Development Agreement"on the date specified in said Agreement,the fees
are forgiven and the City shall look solely to to tax increment from the TIF District
for the reimbursement of such fees.
16. Developer Representations and Covenants. The Developer hereby makes the following
representations and covenants:
(a) The Developer has the legal authority and power to enter into this Agreement.
(b) The Developer reasonably expects to obtain financial resources which, when
combined with the assistance hereunder,will be sufficient to enable the completion
of the Improvements.
Page 9 of 17
(c) The Developer will, subject to the requirements of Section B - Installation and
Maintenance of Improvements hereof, construct, operate and maintain the
Improvements in accordance with the terms of this Agreement, the requirements of
the TIF District and all local, state and federal laws and regulations, and will
construct or pay the costs of construction of any site improvements, utilities,
landscaping,stormwater management facilities,roads,or parking facilities which are
necessary in connection with the construction and such improvements.
(d) At such time or times as may be required by law,the Developer will have complied
with all local, state and federal environmental reviews, licenses, and will be in
compliance with the requirements of federal, state, and local authority.
(e) The Developer will obtain, in a timely manner, all required permits, licenses and
approvals,and will meet,in a timely manner,all requirements of all local, state, and
federal laws and regulations which must be obtained or met before the Improvements
may be constructed.
(f) The Developer acknowledges that the TIF District is a "housing district" as defined
in Section 469.174, Subdivision 11, of the TIF Act and, as such, is subject to the
limitations provided in Minnesota Statutes, Section 469.174, Subdivision 11 and
Section 469.1761, Subdivision 3 (together, the "Restrictions"). The Developer
covenants that it will, with respect to the Improvements, observe and comply, and
that it will cause the require any of its permitted successors and assigns to observe
and comply with such Restrictions. In particular, and without limitation, the
Developer covenants that at all times prior to the expiration of the Term the use of
the property shall continue to qualify as a "housing district" under the TIF Act;
specifically, that not less than 20% of the housing units shall be rented to tenants
having annual income less than 50% of area median gross income. At least once
annually,the Developer or Owner agrees to provide evidence satisfactory to the City
of Orono of compliance with the applicable income limitation, including without
limitation the total number of rental units during any reporting period and income
verifications.
(g) It is intended and agreed that the covenants provided in this Section shall remain in
effect throughout the Terms and shall be covenants running with the land not the
owner or developer.
Page 10 of 17
17. City Representations and Covenants: The City makes the following representations as the
basis for the undertaking on its part here in contained:
(a) The City is authorized by law to enter into this Agreement and to carry out its
obligations hereunder.
(b) The City will,in a timely manner,subject to all notification requirements,review and
act upon all submittals and application of the Developer and will cooperate with the
effort of the Developer to secure the granting of any permit,license,or other approval
required to construct and operate the Improvements;provided,however,that nothing
contained in this subparagraph shall be construed to limit in any way the reasonable
and legitimate exercise of the City's discretion in considering any submittal or
application.
(c) The Development Property is zoned for purposes which include the Development as
proposed. The city has issued all necessary residential planned unit development
(RPUD) approval, and plat approval of Orono Woods Addition.
(d) The City has duly taken such steps as it is required to take to approve the TIF District
and TIF Plan pursuant to and in accordance with the TIF Act and the City covenants
to discharge such future obligation. The City acknowledges that, as a housing TIF
District,the TIF District is subject to specific requirements and limitation under the
TIF Act, including the requirements that:
(1) The increment be expended in accordance with the TIF Plan (Section
469.176, Subdivision 4)and solely to finance the cost of"housing projects",
as defined in Section 469.174, Subdivision 11, which may include the cost
of public improvements directly related to the housing projects and allocated
administrative expenses (469.176, Subdivision 4d)
(2) The income limitations under Section 469.1761,the violation of which may
limit the TIF District's duration to that of an economic development district
(Section 469.1761, Subdivision 4)
(3) The disqualification of a project if the fair market value of its improvements
which are constructed for uses other than low and moderate income housing
exceeds 20% of the total fair market value of the planned improvements in
the development plan or agreement (Section 469.174, Subdivision 11).
Page 11 of 17
Compliance with some of these restrictions is within the control of the City
and compliance with some of these restrictions is within the control of the
Developer and/or Owner.
(4) The City has agreed to defer Sewer and Water Connection Fees in the amount
of$40,838 and Park Dedication Fees in the amount of$161,200 that would
otherwise be due at the time of development of the Senior Housing. The City
will reimburse itself for these deferred fees via TIF proceeds as described in
the"Development Agreement"as long as there is no default by the Developer
under the terms of that Agreement.
(e) The City covenants not to take any actions,including without limitation any approval
of the expenditure by the City of increment from the TIF District not applied toward
payment of the TIF Note, which would violate the TIF Act, invalidate the TIF
District in whole or in part or adversely affect the tax increment payment obligations
to the Developer under this Agreement or the TIF Note. Nothing in this subsection
shall diminish the Developer's obligations under this Agreement or create any
liability of the City respecting an Event of Default. The City shall promptly give the
Developer written notice and copy of any lawsuit or similar proceeding,or any threat
thereof, and of any communication from the Office of the State Auditor, the
Department of Revenue, Hennepin County or other public official which questions
the propriety or legality of the TIF District or the expenditure of its increment.
18. Compliance. At any time and from time to time the Developer may request that the City
provide the Developer a certificate certifying that that the terms and provisions of this
Agreement have been complied with and that this PUD Agreement is in full force and effect
with respect to the development for the purpose of facilitating sale, mortgage, insurance or
other matters. To the extent that there be any bona fide defaults in such compliance, the
Developer shall be afforded a reasonable time to bring the development into conformance,
and thereafter the City shall be obligated to provide such certificate.
19. Binding Effect: The terms and provisions hereof shall be binding upon and inure to the
benefit of the heirs,representatives,successors and assigns of the parties hereto and shall be
binding deemed covenants running with the land. References herein to Developer, if there
be more than one, shall mean each and all of them. This agreement at the option of the City
shall be placed of record so as to give notice hereof to any subsequent purchasers and
encumbrancers of all or any part of the property.
Page 12 of 17
20. Notices: Whenever in this agreement it shall be required or permitted that notice or demand
be given or served by either party to this agreement to or on the other party, such notice or
demand shall be delivered personally or mailed by United States certified mail(return receipt
requested)to the addresses set forth below. Such notice or demand shall be deemed timely
given when delivered personally or when deposited in the mail in accordance with the above.
Notice to City Notice to Developer
City of Orono James Cooper, Chief Manager
Clerk/Administrator Orono Senior Housing, LLC
P.O. Box 66 c/o Dunbar Development Corporation
Crystal Bay, MN 55323 5000 Glenwood Avenue
Golden Valley, MN 55422
cc: Wedum Foundation
Parties may substitute notice provisions upon notice to all other parties.
21. Incorporation by Reference: All plans, special provisions, proposals, specifications and
contracts for the Improvements furnished and let pursuant to this agreement shall be and
hereby are made a part of this agreement by reference as fully as if set out herein in full.
22. Disclaimer by City: It is understood and agreed that the City, the City Council, and the
agents and employees of the City shall not be personally liable or responsible in any manner
to the Developer or Developer's contractors, subcontractors, materialmen, laborers, or any
other person, firm or corporation, for any debt, claim, demand, damages, actions, or causes
of action of any kind or character, arising out of or by reason of the execution of this
agreement or the performance and completion of the Improvements.
23. Hold Harmless and Indemnification: The Developer shall indemnify and hold harmless the
City,the City Council,and the agents and employees of the City from and against all claims,
damages,losses or expenses,including attorney fees,which the City,City Council and agents
and employees of the City may suffer or for which it may be held liable, arising out of or
resulting from the assertion against them of any claims,debts or obligations in consequence
of the performance of this agreement by the Developer, its employees, agents or sub-
contractors, whether or not caused in part by a party indemnified hereunder.
Page 13 of 17
24. Remedy for Default: Default by the Developer of any of the terms of this agreement shall
automatically result in the suspension or withholding of all permits, licenses, occupancy
certificates or other authorizations issued by the City in connection with the property included
in this development.The remedies afforded to the City under this Section shall be in addition
to any other remedies to which the City may be entitled by law or other agreement. Default
by the City shall entitle the Developer to seek injunctive/mandatory relief through the courts,
together with other relief as the law may provide.
25. Right of Entry. The Developer hereby grants to the City, its agents and its employees, the
right to enter on the property for the specific purpose of constructing or completing any and
all of the agreed upon Improvements should the Developer not complete those Improvements
by the date specified in Section 11.
26. Controlling Agreement. To the extent that there is any difference or ambiguity between this
Planned Unit Development Agreement and other agreements between the City and the
Developer, this Planned Unit Development Agreement shall control.
(The balance of this page intentionally left blank)
Page 14 of 17
IN WITNESS WHEREOF, the City and the Developer have caused this agreement to be
duly executed on the day and year first above written.
In Presence of: CITY OF ORONO
By:
(Mayor)
By:
(City Clerk)
DEVELOPER
By:
(Title)
Reviewed for Administration:
Date: By:
(Planning Director)
By:
(City Administrator)
This instrument was drafted by:
City of Orono
2750 Kelley Parkway
P.O. Box 66
Crystal Bay, MN 55356
Page 15 of 17
(NOTARIZATION PAGES)
Page 16 of 17
(NOTARIZATION PAGES)
Page 17 of 17
LIST OF EXHIBITS
Exhibit A Site Plan
Exhibit B Grading, Drainage and Erosion Control Plan
Exhibit C Utility Plan
Exhibit D Building Plans & Elevations
Exhibit E Landscaping Plan
Exhibit F Lighting Plan
Exhibit G Signage Plan
Exhibit H Site Improvements Cost Estimate
Exhibit I Letter by Hugh M. Maynard dated 4/24/01 regarding
Sewer Replacement
Exhibit J Agreement for Sewer Replacement (City to draft,
Rebers to sign)
Page 18 of 17
ORDINANCE NO. , SECOND SERIES
AN ORDINANCE AMENDING THE MUNICIPAL CODE OF ORONO
AND AMENDING THE OFFICIAL ZONING MAP
BY REZONING PROPERTY WITHIN
OUTLOT F, SUGAR WOODS, HENNEPIN COUNTY, MINNESOTA
FROM B-1 RETAIL SALES BUSINESS DISTRICT TO
B-6 HIGHWAY COMMERCIAL DISTRICT OR
RPUD RESIDENTIAL PLANNED UNIT DEVELOPMENT DISTRICT
AND ADDING SECTION 10.53 SUBDIVISION 9 REGARDING
PLANNED UNIT DEVELOPMENT NO. 2
- FILE#2640
WHEREAS, the City of Orono is a municipal corporation organized and existing
under the laws of the State of Minnesota; and
WHEREAS,the City Council of the City of Orono has approved the replatting of
Outlot F, Sugar Woods, Hennepin County, Minnesota into Lots 1 and 2, Orono Ambar, Hennepin
County, Minnesota; and
WHEREAS,the City Council has approved the rezoning of said Lots 1 and 2 per the
findings, terms and conditions of Resolution No. adopted , 2001, and the
ceratin PUD Agreement between Dunbar Development Corporation and the City of Orono dated
, 2001.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORONO
DOES HEREBY ORDAIN:
Section 1. The Municipal Code of Orono is amended by amending the official zoning map and
zoning district boundaries for the property described as follows:
Lot 1, Block 1, Orono Ambar, Hennepin County, Minnesota.
Said property is hereby rezoned from B-1 Retail Sales Business District to B-6 Highway Commercial
District.
Section 2. The Municipal Code of Orono is amended by amending the official zoning map and
zoning district boundaries for the property described as follows:
Lot 2, Block 1, Orono Ambar, Hennepin County, Minnesota.
Said property is hereby rezoned from B-1 Retail Sales Business District to RPUD Residential
Planned Unit Development District.
Page 1 of 3
Section 3. The Municipal Code of Orono is amended by adding Section 10.53, Subd.9 to read
as follows:
"Subd. 9. PLANNED UNIT DEVELOPMENT NO. 2 - DUNBAR PUD:
A. Legal Description. The PUD is legally described as Lots 1 and 2, Block 1,
Orono Ambar, Hennepin County, Minnesota.
B. Lot 1, Block 2, Orono Ambar when referenced individually shall be
hereinafter referred to as PUD NO. 2A. Lot 2,Block 1,Orono Ambar when
referenced individually shall be hereinafter referenced as PUD NO. 2B.
C. Incorporated herein by reference are the DUNBAR PUD plans received by
the City on , 2001, on file in the Office of the Zoning
Administrator under File #2640/2641.
D. Allowable Uses. The uses allowed in the PUD are as follows:
1) Uses allowed in PUD NO. 2A are any permitted or accessory uses
allowed in the B-6 Highway Commercial District.
2) Uses allowed in PUD NO. 2B include the following:
a) Senior independent living housing,limited to one(1) building,
subject to the performance standards of the RPUD Zoning
District and as further limited within City Council Resolution
No. on file in the Office of the Zoning Administrator
under File#2640/2641.
b) Any accessory use as regulated in the RPUD District, except
as further limited within City Council Resolution No.
on file in the Office of the Zoning Administrator under File
#2640/2641.
E. Development Standards. Development standards shall be as indicated on the
approved PUD General Development Plan as documented within City Council
Resolution No. on file in the Office of the Zoning Administrator under
File#2640/2641."
Page 2 of 3
Section 4. This ordinance shall be published in The Laker and The Pioneer newspaper and shall
be effective upon publication.
Adopted by the City Council of the City of Orono,Minnesota at a regular meeting held on the 22nd
day of October, 2001 by a vote of ayes and nays.
ATTEST: Barbara A. Peterson, Mayor
Linda S. Vee, City Clerk
Page 3 of 3
/ 07 /i ' /
DEVELOPMENT AGREEMENT
Relating to
ORONO WOODS APARTMENTS
(Including Tax Increment Financing District No. 1-1)
Between
CITY OF ORONO
ORONO HOUSING AND REDEVELOPMENT AUTHORITY
and
ORONO SENIOR HOUSING, LLC
This Instrument Drafted by:
Faegre & Benson LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota 55402-3901
Telephone: (612) 336-3000
DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into as of this day of October,
2001, by and among the CITY OF ORONO, a Minnesota municipal corporation
having its principal office at 2750 Kelley Parkway, Orono, Minnesota(the "City"),
the ORONO HOUSING AND REDEVELOPMENT AUTHORITY, a body corporate
and politic having its principal office at 2750 Kelley Parkway, Orono, Minnesota(the
"HRA") and ORONO SENIOR HOUSING, LLC, a Minnesota limited liability
company(the "Developer").
WITNESSETH:
WHEREAS, the Developer, the City and the HRA contemplate that the
Developer arreNEEEORtr will develop the property described in Exhibit A hereto (the
"Development Property") as a 62-unit apartment building for seniors (the "Project");
and
WHEREAS, the Developer will cause the Development Property to be
acquired and conveyed to the HRA under the terms and conditions of Section 3.3
hereof; and
WHEREAS, the HRA will lease the Development Property to the Developer
for use as senior housing pursuant to the Ground Lease attached hereto as Exhibit B
(the "Ground Lease"); and
WHEREAS, the HRA will issue its Tax Increment Revenue Note in the form
of Exhibit C hereto (the "TIF Note") in payment of a portion of the costs of acquiring
the Development Property; and
WHEREAS, the balance of the costs of the Project will be financed by the
issuance by the City of its Multifamily Senior Housing Revenue Bonds (Orono
Woods Project), Series 2001A (the "Housing Bonds") and its Subordinate
Multifamily Senior Housing Revenue Note (Orono Woods Project), Series 2001)4 (the
"Subordinate Housing Note") to be issued as described in Section 3.1 hereof; and
WHEREAS, the HRA has created and established Tax Increment Financing
District No. 1-1 as a housing tax increment financing district (the "TIF District") and
a coterminus Housing Project Area No. 1 pursuant to a development program and a
tax increment financing plan(the "TIF Plan") adopted pursuant to Minnesota Statutes,
Sections 469.001 through 469.047 and Sections 469.174 through 469.179
(collectively, the "Acts"); and
WHEREAS, the Project and the TIF Note are contemplated and authorized by
the TIF Plan; and
WHEREAS, the Project, the Housing Bonds and Subordinated Housing Note
are contemplated and authorized by a Senior Housing Program
(the "Housing
Program") adopted by the City Council pursuant to Minnesota Statutes, Chapter
462C; and
WHEREAS, the Project is to be developed as a planned unit development
pursuant to the terms of Agreement dated as of October2 001
between the City and the Developer(the "PUD Agreement").
WHEREAS, the proposed Project qualifies as a"housing development project"
within the meaning of Minnesota Statutes, Sections 469.002, Subd. 15 and 469.017,
and will promote and carry out the objectives of the Housing Program and the TIF
Plan, will be in the vital best interests of the City and will promote the health, safety,
morals and welfare of its residents, and are in accord with the public purposes and
provisions of the applicable state and local laws.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations of the HRA, the City and the Developer, the parties hereby represent,
covenant and agree as follows:
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ARTICLE I.
DEFINITIONS, EXHIBITS, RULES OF INTERPRETATION
Section 1.1 Definitions. In this Agreement, the following terms have the
following respective meanings unless the context hereof clearly requires otherwise:
(a) Acts. Minnesota Statutes, Sections 469.001 through 469.047 and
469.174 through 469.179.
(b) Certificate of Completion. The certificate of completion set forth in
Exhibit D hereto.
(c) City. The City of Orono, Hennepin County, Minnesota.
(d) Completion Year. The earlier of(1) the year 2002 and (2) the year (if
any) in which the Certificate of Completion for the Improvements is issued.
(e) Developer. Orono Senior Housing, LLC, a Minnesota limited liability
company, its successors and assigns.
(f) Development. The Development Property and the Improvements to be
constructed thereon by the Developer in accordance with the terms of this Agreement,
as they may at any time exist.
(g) Development Property. The real property which is the site of the
Improvements, as legally described in Exhibit A hereto.
(h) Event of Default. An Event of Default, as defined in Section 7.1.
(i) Financing Documents. The following documents to be executed and
delivered in connection with the issuance and sale of the Housing Bonds and the
Subordinate Housing Note:
(j) Ground Lease. The Ground Lease attached as Exhibit B hereto, as the
same may be amended from time to time.
(k) Housing Bonds. The Multifamily Senior Housing Revenue Bonds
(Orono Woods Project), Series 2001A and the Taxable Multifamily Senior Housing
Revenue Bonds, Series 2001B to be issued pursuant to Section 3.1 hereof and the
Financing Documents.
(1) Housing Plan. The development program for the HRA's Housing
Project Area No. 1, which contains the TIF District.
(m) HRA. The Orono Housing and Redevelopment Authority, and any
successor to its functions.
(n) Improvements. The 62-unit apartment building and appurtenant
facilities described in the PUD Agreement.
(o) Mortgage and Holder. The term"Mortgage" shall include the
mortgages referenced in Article V of this Agreement and any other instrument
creating an encumbrance or lien upon the Development or any part thereof as security
for a loan. The term "Holder" in reference to a Mortgage includes any insurer or
guarantor (other than the Developer) of any obligation or condition secured by such
Mortgage or deed of trust.
(p) Permitted Encumbrances. The encumbrances on the Development
Property which are permitted to exist and the time the Development Property is
conveyed to the HRA, which encumbrances shall consist only of
and such other encumbrances as the City and HRA
may approve in writing.
(q) Project. The Development Property and the Improvements to be
constructed thereon pursuant to this Agreement.
(r) Project Costs. Project Costs means:
(a) Costs incurred directly or indirectly for or in connection with the
acquisition, construction, installation or equipping of the Project, including
other costs incurred in respect of the Project for preliminary planning and
studies; architectural, legal, engineering, account accounting, consulting,
development, supervisory and other services; land, labor, services and
materials and recording of documents and title work.
(b) Premiums attributable to any surety bonds and insurance
required to be taken out and maintained during the construction period with
respect to the Development Property and the Improvements.
(c) Taxes, assessments and other governmental charges in respect of
the Project that may become due and payable during the construction period.
(d) Costs incurred directly or indirectly in seeking to enforce any
remedy against any contractor or subcontractor in respect of any actual or
claimed default under any contract relating to the Improvements.
(e) Financial, legal, accounting, printing and engraving fees,
charges and expenses and all other such fees, charges and expenses incurred in
connection with the authorization, sale, issuance and delivery of the Housing
Bonds and Subordinate Housing Note including, without limitation, the fees
and expenses of the City and HRA and the fees and expenses of the trustee, the
paying agent, the registrar and the authenticating agent properly incurred under
the Financing Documents that may become due and payable during the
construction period.
(f) Any other costs, expenses, fees and charges properly chargeable
to the cost of acquisition, construction, installation and equipping of the
Project.
(s) PUD Agreement. The ?1/l D E-15 Agreement dated
l ZZ , 2001 between the Developer the City relating to development of the
evelopment PropertyEl an adjacent parcel s a planned unit development.
(t) Subordinate Housing Note. The Subordinate Multifamily Senior
Housing Note (Orono Woods Project), Series 2001C to be issued pursuant to Section
3.1 hereof and the financing Documents.
(u) Tax Increment Financing District(TIF District). Tax Increment
Financing District No. 1-1 consisting of the Development Parcel, created by the HRA
pursuant to the TIF Act and described in the TIF Plan adopted therefor.
(v) Tax Increment Financing Plan(TIF Plan). The plan for development of
the TIF District adopted by the HRA pursuant to the TIF Act.
(w) Tax Increment Note or TIF Note. The Note to be issued by the HRA
pursuant to Section 6.1 hereof and which is substantially in the form of Exhibit C
hereto.
(x) Term. The period beginning on the date of this Agreement and ending
on the February 1, 2022; provided, however, that the Term shall not extend beyond
the termination date of the TIF District under the TIF Act or the date, if any, of
cancellation or recission of this Agreement under Section 7.2(a) hereof.
(y) TIF Act. Minnesota Statutes, Sections 469.174 through 469.179.
(z) Unavoidable Delays. Delays which are the direct result of strikes, fire,
war, material shortage, causes beyond the party's control or other casualty, or acts of
any federal, state or local government unit, except those acts anticipated or
contemplated under this Agreement.
Section 1.2 Exhibits. The following Exhibits are attached to and by reference
made a part of this Agreement:
A. Development Property
B. Ground Lease
C. Tax Increment Note
D. Certificate of Completion
E. Form of Income Certification
F. Investor Letter
Section 1.3 Rules of Interpretation.
(a) This Agreement shall be interpreted in accordance with and governed
by the laws of the state of Minnesota.
(b) The words "herein" and "hereof' and words of similar import, without
reference to any particular section or subdivision refer to this Agreement as a whole
rather than any particular section or subdivision hereof.
(c) References herein to any particular article, section or subdivision hereof
are to the article, section or subdivision of this Agreement as originally executed.
(d) Any titles of the several parts, articles and sections of this Agreement
are inserted for convenience and reference only and shall be disregarded in construing
or interpreting any of its provisions.
[The balance of this page intentionally left blank.]
ARTICLE II.
REPRESENTATIONS AND COVENANTS
Section 2.1 By the Developer. The Developer makes the following
representations and covenants:
(a) The Developer has the legal authority and power to enter into this
Agreement.
(b) The Developer reasonably expects to obtain financial resources which,
when combined with the assistance hereunder, will be sufficient to enable the
completion of the Improvements.
(c) The Developer will, subject to the provisions of Article IV hereof,
construct, operate and maintain the Improvements in accordance with the terms of this
Agreement, the PUD Agreement, the Housing Plan, the TIF Plan and all local, state
and federal laws and regulations, and will construct or pay the costs of construction of
any site improvements, utilities, parking facilities, or landscaping improvements
which are necessary in connection with the construction and operation of the
Improvements.
(d) At such time or times as may be required by law, the Developer will
have complied with all local, state and federal environmental laws and regulations,
will have obtained any and all necessary environmental reviews, licenses or
clearances under, and will be in compliance with the requirements of the National
Environmental Policy Act of 1969, the Minnesota Environmental Policy Act, and the
Critical Area Act of 1973.
(e) The Developer will obtain, in a timely manner, all required permits,
licenses and approvals, and will meet, in a timely manner, all requirements of all
local, state and federal laws and regulations which must be obtained or met before the
Improvements may be constructed.
(f) The Developer acknowledges that the TIF District is a"housing
district," as defined in Section 469.174, Subdivision 11, of the TIF Act and, as such, is
subject to the limitations provided in Minnesota Statutes, Section 469.174,
Subdivision 11 and Section 469.1761, Subdivision 3 (together, the "Restrictions").
The Developer covenants that it will with respect to the Improvements observe and
comply, and that it will cause and require any of its permitted successors and assigns
to observe and comply, with such Restrictions. In particular, and without limitation,
the Developer covenants that at no time prior to the expiration of the Term shall the
fair market value (determined using cost of construction, capitalized income, or other
appropriate method of estimating market value) of any portion of the Improvements
which are, within the meaning of Section 469.174, Subdivision 11, of the TIF Act,
constructed for commercial uses or for uses other than low and moderate income
housing constitute more than 20% of the total fair market value of the Improvements.
The Developer represents and covenants that throughout the Term the TIF District
shall continue to qualify as a"housing district" under the TIF Act; specifically, that
not less than 20% of the rental housing units of the Improvements shall be rented to
persons/families that at occupancy have annual income less than 50% of area median
gross income. The Developer further represents and covenants that throughout the
Term the housing units shall be rented only to persons 62 years of age or older. At
least annually, the Developer agrees to provide evidence reasonably satisfactory to the
HRA of compliance with the applicable income and age limitations, including without
limitation the total number of rental units during any reporting period and income and
age verifications substantially in the form of the attached Exhibit E respecting units
rented to tenants meeting those limits.
(g) It is intended and agreed that the covenants provided in this Section 2.1
shall remain in effect throughout the Term and shall be covenants running with the
land. Except as expressly set forth in Section 5.5 hereof, the obligations under such
provisions shall not be subordinated to the rights of any party having an interest in the
Development Property.
Section 2.2 By the City. The City makes the following representations as the
basis for the undertaking on its part herein contained:
(a) The City is authorized by law to enter into this Agreement and to carry
out its obligations hereunder.
(b) The City will, in a timely manner, subject to all notification
requirements, review and act upon all submittals and applications of the Developer
and will cooperate with the efforts of the Developer to secure the granting of any
permit, license, or other approval required to construct and operate the Improvements;
provided, however, that nothing contained in this subparagraph 2.2(b) shall be
construed to limit in any way the reasonable and legitimate exercise of the City's
discretion in considering any submittal or application.
(c) The Development Property is zoned for purposes which include the
Development as proposed. The City has issued all necessary planned unit
development, conditional use permits and plat approval for the Development Property.
Section 2.3 By the HRA. The HRA makes the following representations as
the basis of the undertakings on its part:
(a) The HRA is authorized by law to enter into this Agreement and to carry
out its obligations hereunder;
(b) The HRA shall cooperate with the City and the Developer with regard
to the issuance of any additional permits required by the Developer to construct the
Improvements.
(c) The HRA will issue the TIF Note in consideration of Dunbar's
conveyance of the Development Property in accordance with Section 3.03.
ARTICLE III.
CITY OBLIGATIONS FOR HOUSING BONDS AND
SUBORDINATED HOUSING NOTE; DEFERMENT OF
FEES; ACQUISITION OF DEVELOPMENT PROPERTY;
CONSTRUCTION OF PUBLIC IMPROVEMENTS
Section 3.1 Housing Bonds and Subordinated Housing Note. The City agrees
to issue the Housing Bonds and Subordinated Housing Note pursuant to the Housing
Act in an aggregate amount, not to exceed $8,070,000$8,060,000, which is estimated
by the Developer to be sufficient to pay the estimated Project Costs; provided,
however, that the aggregate principal amount of the Housing Bonds shall not exceed
$7,800,000 $7,810,000 and the principal amount of the Subordinated Housing Note
shall not exceed $250,000. The obligation of the City to issue the Housing Bonds and
Subordinated Housing Note is subject to the following conditions:
(a) The Financing Documents, in form and substance satisfactory to the
City and the City Attorney, have been duly executed and delivered by the
Developer and the other parties thereto.
(b) The Developer shall have executed and delivered the Ground Lease
and the PUD Agreement.
(c) Faegre & Benson LLP, as bond counsel, shall have delivered its
opinion that the Housing Bonds and Subordinated Housing Note were validly
issued and that the interest thereon is exempt from federal income taxation.
(d) The City shall have received opinions of counsel to the Developer
and the other parties to the Financing Documents, in form and substance
satisfactory to it, to the effect that the Ground Lease and Financing Documents
are valid and binding obligations of such parties, enforceable in accordance
with their terms.
(e) The Developer shall have entered into a contract for construction of
the Improvements with Frana& Sons Inc., in form and
substance satisfactory to the City, and providing for a guaranteed maximum
price of not more than $
(f) All conditions precedent to the execution and delivery of the
Financing Documents shall have been satisfied without regard to any waivers
which the City has not approved.
Neither the City nor the HRA shall be responsible for the failure of the
Developer, Dunbar or any other person to satisfy the foregoing conditions and the
City and HRA make no representations or warranties that such conditions can or will
be met. The City and HRA have no obligation to issue any additional obligations to
refund the Housing Bonds or Subordinated Housing Note or to provide any additional
funds for completion of the Development or otherwise.
Section 3.2. Park Dedication and Utility Connection Charges. The City agrees
that fees aggregating $200,000, consisting of park dedication fees in the amount of
VW/ZOO and utility connection fees in the amount of$111F3,38 , otherwise payable
with respect to the Development are deferred and shall be payable only in the event
that the Developer permits the Development to be occupied by tenants who are not 62
years of age or older. In that event such fees shall be immediately due and payable
s ge 'nterest on the deferred amounts computed at the rate of 7.00%per
annumrom t - date hereof. If there is no incurred default under this Section 3.2 on
i e fees are forgiven and the City shall look solely to tax increment
om the TIF istrict for the reimbursement of such fees. The HRA hereby agrees to
app • L. crement from the TIF District to such reimbursement, subject to its
obligations under the TIF Note.
Section 3.3. .nveyan• - .f Development Property; Execution of Ground
Lease. On or prior o , 001 the Developer shall convey fee simple title to
the Development Pr. .erty to th- 'I' • by warranty deed, subject only to Permitted
Encumbrances. In cons'. - . ion of such conveyance the HRA shall execute and
deliver the TIF Note to the Developer. Upon execution and delivery of the Financing
Documents, the HRA shall execute and deliver the Ground Lease.
[The balance of this page intentionally left blank.]
ARTICLE IV.
CONSTRUCTION OF IMPROVEMENTS
Sectio A . Construe an of Improvements. The Developer agrees to construct
the Improver ents and complete thg Project in accordance with the PUD Agreement
on or prior t• ►eC.. SI , 002. This covenant to construct the Improvements
shall run with - land. Wh e Project is completed, as evidenced by a Certificate
of Completion, the Development Property shall be released from the requirements of
this Article IV and shall no longer be encumbered by the obligations imposed under
this Article IV.
Section 4.2 Building Plans. When the Developer completes the design for the
Improvements, it may submit the plans and specifications to the City as part of its
application for a building permit. If the proposed Improvements for that phase are
substantially consistent with the definition of the Improvements set forth herein and
the Developer has complied with all other applicable requirements for the issuance of
a building permit, the permit shall be issued in accordance with standard City
practices. The City shall not be required to provide a building permit or otherwise
permit construction of any improvements on the Development Property if, in its
reasonable judgment, such improvements would interfere with the ability of the
Developer to complete the Improvements described herein within applicable land-use
regulations. Any change in the approved plans for a phase which substantially alters
the construction of the Improvements shall be subject to approval by the City.
Section 4.3 Completion of Construction. All construction shall be in
conformity with the plans. Periodically during construction, but at intervals of not
less than 30 days, the Developer shall make reports in such detail as may reasonably
be requested by the City concerning the actual progress of construction.
Section 4.4 Certificate of Completion. Promptly after notification by the
Developer of completion of the Improvements, the City shall inspect the construction
to determine whether it has been completed in accordance with the terms of this
Agreement. In the event that the City determines that the construction has been
completed in accordance with the plans and applicable regulations, the City shall
furnish the Developer with a Certificate of Completion in the form provided in
Exhibit D. Such certification by the City shall be a conclusive determination of
satisfaction and termination of the agreements and covenants in this Article IV of this
Agreement with respect to the obligation of the Developer to construct the
Improvements.
The Certification of Completion provided for in this Section 4.4 shall be in
recordable form. If the City shall refuse or fail to provide certification in accordance
with the provisions of this Section 4.4, the City shall within 15 days of such
notification provide the Developer with a written statement, indicating in adequate
detail in what respects the Developer has failed to complete the Improvements in
accordance with the applicable plans and applicable regulations, or is otherwise in
default, and what measures or acts will be necessary, in the opinion of the City, for the
Developer to take or perform in order to obtain such certification. The City shall
issue the Completion Certificate that the Improvements conform to the applicable
plans and applicable regulations.
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ARTICLE V.
LIMITATION UPON ENCUMBRANCE; PROHIBITIONS
AGAINST ASSIGNMENT AND TRANSFER; SUBORDINATION
Section 5.1 Limitation Upon Encumbrance of Development. Prior to the
issuance of the Certificate of Completion, neither the Developer nor any successor in
interest to the Development Property or any part thereof shall engage in any financing
or any other transaction creating any Mortgage or other encumbrance or lien upon the
Development Property, whether by express agreement or operation of law, or suffer
any encumbrance or lien to be made on or attached to the parcel of the Development
Property other than this Agreement, the PUD Agreement and the Financing
Documents.
Section 5.2 Representation as to Development. The Developer represents and
agrees that its undertakings pursuant to the Agreement are for the purpose of
implementation of the Development and not for speculation in landholding. The
Developer further recognizes that, in view of the importance of the Development to
the general welfare of the City and the substantial financing and other public aids that
have been made available by the HRA and the City for the purpose of making the
Development possible, the qualifications and identity of the Developer are of
particular concern to the HRA and the City. The Developer further recognizes that it
is because of such qualifications and identity that the HRA and City are entering into
this Agreement, and, in so doing, are further willing to rely on the representations and
undertakings of the Developer for the faithful performance of all undertakings and
covenants agreed by Developer to be performed.
Section 5.3 Prohibition Against Transfer of Property and Assignment of
Agreement. For the reasons set out in Section 5.2 of this Agreement, the Developer
represents and agrees that, prior to the issuance of the Certificate of Completion as
certified by the City:
(a) Except for leases and other tenancies in the rental units of the
Improvements, or for any other purpose authorized by this Agreement, the Developer,
except as so authorized, has not made or created, and will not make or create, or suffer
to be made or created, any total or partial sale, assignment, conveyance, or any trust or
power, or transfer in any other mode or form of or with respect to this Agreement or
the Development Property or any part thereof or any interest therein, or any contract
or agreement to do any of the same, without the prior written approval of the City; and
(b) The City shall be entitled to require, except as otherwise provided in
this Agreement, as conditions to any such approval under this Section 5.3 that: (i)
Any any proposed transferee shall have the qualifications and financial responsibility,
as reasonably determined by the City, necessary and adequate to fulfill the obligations
undertaken in this Agreement by the Developer or, in the event the transfer is of or
relates to part of the Development, such obligations to the extent that they relate to
such part.; (ii) Any any proposed transferee, by instrument in writing satisfactory to
the City and in form recordable among the land records, shall for itself and its
successors and assigns, and specifically for the benefit of the HRA and the City, have
expressly assumed all (or the applicable portion) of the obligations of the Developer
under this Agreement and agreed to be subject to such obligations, restrictions and
conditions or, in the event the transfer is, of, or relates to part of the Development,
such obligations, conditions, and restrictions to the extent that they relate to such part;
provided, that the fact that any transferee of, or any other successor in interest
whatsoever to, the Development or any part thereof, shall, for whatever reason, not
have assumed such obligations or agreed to do so, shall not, unless and only to the
extent otherwise specifically provided in this Agreement or agreed to in writing by the
City, relieve or except such transferee or successor from such obligations, conditions,
or restrictions, or deprive or limit the HRA and the City of or with respect to any
rights or remedies or controls with respect to the Development or the construction of
the Improvements; it being the intent of this Section 5.3, together with other
provisions of this Agreement, that to the fullest extent permitted by law and equity
and excepting only in the manner and to the extent specifically provided otherwise in
the Agreement no transfer of, or change with respect to, ownership in the
Development or any part thereof, or any interest therein, however consummated or
occurring, whether voluntary or involuntary, shall operate, legally or practically, to
deprive or limit the HRA or the City, of any rights or remedies or controls provided in
or resulting from this Agreement with respect to the Development and the
construction of the Improvements that the HRA and the City would have had, had
there been no such transfer or change.; and(iii) There there shall be submitted to the
City for review all instruments and other legal documents involved in effecting
transfers described herein, and if approved by the City, their approval shall be
indicated to the .Developer in writing.
g
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
from any of its obligations with respect thereto.
Section 5.4 Approvals. Any approval required to be given by the City under
this Article V may be denied only in the event that the City reasonably determine
determines that the ability of the Developer to perform its obligations under this
Agreement will be materially impaired by the action for which approval is sought.
Section 5.5 Subordination and Modification for the Benefit of Mortgagees.
(a) In order to facilitate the obtaining of temporary or permanent financing
for the construction or purchase of the Development, or individual phases thereof, by
the Developer, the City agrees to subordinate its rights under this Agreement to the
Holder of any Mortgage entered into for the purpose of obtaining such financing, but
only provided that the Mortgage or subordination agreement provides that if the
Holder of the Mortgage shall foreclose on the Development Property or the
Improvements thereon, or on the Developer's interest in the Ground Lease, or any
portion thereof, or accept a deed to such property in lieu of foreclosure, it shall
consent to be bound by the provisions of Section 2.1(f) of this Agreement.
(b) In order to facilitate the obtaining of financing for the acquisition and
construction of the Development, the City agrees that it shall agree to any reasonable
modification of this Article V or waiver of its rights hereunder to accommodate the
interests of the Holder of the Mortgage, provided, however, that the City determines,
in its reasonable judgment, that any such modification(s) will adequately protect the
legitimate interests and security of the HRA and the City with respect to the
Development.
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ARTICLE VI.
TAX INCREMENT NOTE
Section 6.1 Issuance of Tax Increment Note. The Developer represents that it
has incurred and will incur sign cant costs in .. quiring the Development Property
which are estimated to be at 1 st $ . In onsideration of this Agreement, the
HRA agrees to reimburse up t $ of the.e costs, together with interest
accruing thereon at 7.00%per . urn, as provi.ed in and subject to the provisions of
the TIF Note substantially in the a r of E..- .it C hereto. The HRA shall issue the
TIF Note and deliver the same to the Developer or the Developer's designee, as
registered owner of the TIF Note, contemporaneously with the execution and delivery
of a warranty deed conveying the Development Property to the HRA.
The Developer covenants and agrees not to sell, transfer or convey the TIF
Note without the express written consent of the HRA, which consent shall not be
unreasonably withheld if the transferee executes and delivers to the HRA and the City
an investment letter substantially in the form of Exhibit F hereto; provided, however,
that the Developer may, without such consent, pledge or grant a security interest in the
TIF Note to a lender as security for a loan, including the trustee for the Housing
Bonds. The Developer acknowledges that neither the City nor the HRA make any
representations as to the adequacy of tax increments available to pay the TIF Note.
The TIF Note shall be payable solely from tax increment from the TIF District
received by the HRA to the extent provided in Section 6.2 hereof and neither the City
nor the HRA shall be liable on the TIF Note, nor shall the TIF Note be payable out of
any funds or properties of the City or HRA except for said tax increment.
Section 6.2 Tax Increment Available for TIF Note. The Note shall be paid
solely from tax increment from the TIF District as set forth in the TIF Note. Only the
amounts specifically required to be paid thereon shall be due and payable, regardless
of whether the TIF Note has been paid in full.
ARTICLE VII.
EVENTS OF DEFAULT
Section 7.1 Events of Default Defined. The following shall be deemed Events
of Default under this Agreement and the term shall mean, whenever it is used in this
Agreement, unless the context otherwise provides, the failure by the Developer to
observe and substantially perform any covenant, condition, obligation or agreement
on its part to be observed or performed hereunder, after written notice to the
Developer as provided in this Agreement.
Section 7.2 Remedies on Default. Whenever any Event of Default occurs, the
HRA and the City may, in addition to any other remedies or rights given the HRA and
the City under this Agreement, (1) without notice suspend their performance under
this Agreement until they receive assurances from the Developer, deemed adequate by
the HRA and the City, that the Developer has cured its default (or will do so within a
reasonably acceptable period) and will continue its performance under this
Agreement, and(2) after provision of 60 days written notice to the Developer of the
Event of Default, but only if the Event of Default has not been cured within said 60
days, or if the Event of Default cannot be cured within 60 days, the Developer does
not provide assurances reasonably satisfactory to the City and the HRA that the Event
of Default will be cured as soon as reasonably possible, take any one or more of the
following actions:
(a) cancel or rescind this Agreement or the TIF Note, or both;
(c) take whatever action at law or in equity as may appear necessary or
desirable to the HRA or the City to enforce performance and observance of any
obligation, agreement, or covenant of pthe Developer under this Agreement.
Section 7.3 No Remedy Exclusive. No remedy herein conferred upon or
reserved to the HRA or the City is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and shall be
in addition to every other remedy given under this Agreement or now or hereafter
existing at law or in equity or by statute. No delay or omission to exercise any right
or power accruing upon any default shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may be exercised from
time to time and as often as may be deemed expedient. In order to entitle the HRA,
the City or the Developer to exercise any remedy reserved to it, it shall not be
necessary to give notice, other than such notice as may be required in this Article VII.
Section 7.4 No Additional Waiver Implied by One Waiver. In the event any
agreement contained in this Agreement should be breached by any party and
thereafter waived by another party, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other concurrent, previous or
subsequent breach hereunder.
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ARTICLE VIII.
ADDITIONAL PROVISIONS
Section 8.1 Conflicts of Interest; Representatives Not Individually Liable. No
HRA or City officer who is authorized to take part in any manner in making this
Agreement in his or her official capacity shall voluntarily have a personal financial
interest in this Agreement or benefit financially therefrom. No member, official, or
employee of the HRA or the City shall be personally liable to the Developer, or any
successor in interest, in the event of any default or breach by the HRA or the City or
for any amount which may become due to the Developer or successor or on any
obligations under the terms of this Agreement.
Section 8.2 Notice of Status and Conformance. At such time as all of the
provisions of this Agreement have been fully performed by the Developer, the HRA
and the City upon not less than ten days prior written notice by the Developer agree to
execute, acknowledge and deliver without charge to the Developer or to any person
designated by the Developer a statement in writing in recordable form certifying the
extent to which this Agreement has been fully performed and the obligations
hereunder fully satisfied.
Section 8.3 Notices and Demands. Except as otherwise expressly provided in
this Agreement, a notice, demand or other communication under this Agreement by
either party to the other shall be sufficiently given or delivered if it is sent by mail,
postage prepaid, return receipt requested or delivered personally:
(a) As to the City:
City of Orono
City
Administrator Orono,Administrato
r
2750 Kelley Parkway
Orono, Minnesota 55356
(b) As to the HRA:
Executive Director
Orono HRA Orono,HRA
2750 Kelley Parkway
Orono, Minnesota 55356
(c) As to the Developer:
Wedum Foundation
3191 Shorewood Drive
(d) As to Dunbar:
Arden Hills, MN 55112
or at such other address with respect to any party as that party may, from time to time,
designate in writing and forward to the others as provided in this Section 8.3.
Section 8.4 Counterparts. This Agreement may be simultaneously executed in
any number of counterparts, all of which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the HRA and the City have caused this Agreement
to be duly executed in their names and behalf and the Developer has caused this
Agreement to be duly executed as of the day and year first above written.
CITY OF ORONO, MINNESOTA
By
Mayor
By
City Clerk
ORONO HOUSING AND REDEVELOPMENT
AUTHORITY.
By
, Executive Director
By
, Chair
ORONO SENIOR HOUSING, LLC
By
Its
STATE OF MINNESOTA )
ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
October Nevergloss, 2001, by and
the Mayor and City Clerk of the City of Orono, Minnesota, a municipal corporation
under the laws of the State of Minnesota, on behalf of the city.
Notary Public
STATE OF MINNESOTA )
ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
October iistteisither., 2001, by and
, the Executive Director and Chair of the Orono Housing
and Redevelopment Authority, a public body corporate and politic, on behalf of the
HRA.
Notary Public
STATE OF MINNESOTA )
ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
Inbar, 2001, by , the
of Orono Senior Housing, LLC, a Minnesota limited liability
company, on behalf of the company.
Notary Public
Ml:796288.01EX IIBIT796288.03 EXHIBIT A
LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
/ .9T-- S 1 0
according to the recorded plat thereof, Hennepin County, Minnesota.
EXHIBIT B
GROUND LEASE
between
ORONO HOUSING AND REDEVELOMENT REDEVELOPMENT
AUTHORITY,
as Landlord
and
ORONO SENIOR HOUSING, LLC,
as Tenant
Dated as of , 2001
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS 1
1.1 Definitions. 1
1.2 Exhibits. 2
ARTICLE 2-LEASE AND TERM 3
2.1 Grant. 3
2.2 Covenants. 3
2.3 Quiet Enjoyment. 3
2.4 Term. 3
2.5 Purchase of Development Property 3
2.6 Title to Improvements 4
ARTICLE 3 -RENT 4
3.1 Rent. 4
3.2 Net Lease. 4
3.3 Manner of Payment. 4
ARTICLE 4-TENANT'S COVENANTS 4
4.1 Tenant's Equipment. 4
4.2 Maintenance. 5
4.3 Repairs. 5
4.4 Nondiscrimination; Restrictions on Use.5
ARTICLE 5 -FINANCING 5
5.1 Mortgages. 5
5.2 Notice. 5
5.3 Performance. 5 6
6.4 New Lease. 6
5.5 Further Assurances. 7
5.6 Termination of Lease. 7
ARTICLE 6-ASSIGNMENT AND SUBLETTING 7 8
6.1 Assignments. 7 8
6.2 Subleases. 7 8
6.3 Other Agreements. 8
ARTICLE 7 -END OF TERM 8
7.1 Surrender. 8
7.2 Vesting. 8
7.3 Tenant's Equipment. 8
7.4 Acceptance. 8
7.5 Merger.8 9
ARTICLE 8 -NOTICES AND ESTOPPELS 9
8.1 Notices. 9
8.2 Estoppels. 9
ARTICLE 9-DEFAULT 10
9.1 Events of Default. 10
9.2 Termination. 10
9.3 Payments. 11
9.4 Injunctive Relief. 11
9.5 Forbearance. 11
9.6 Costs. 1112
9.7 Waiver of Default. 12
9.8 Tenant's Liability 12
ARTICLE 10-MISCELLANEOUS 12
10.1 Relationship. 12
10.2 Number and Gender. 12
10.3 Captions. 12
10.4 Time. 12
10.5 Construction. 12
11.6 Law. 12 13
10.7 Binding. 1213
10.8 Short Form. 12 13
10.9 Severability. 12 13
10.10 Counterparts. 13
10.11 Interest Rate. 13
EXHIBIT A Legal Description of the Development Property A-1
EXHIBIT B Permitted Encumbrances B-1
THIS GROUND LEASE, made on or as of the day of
November, 2001, by and between ORONO HOUSING AND REDEVELOPMENT
AUTHORITY, a public body corporate and politic and a governmental subdivision
under Minnesota law, and ORONO SENIOR HOUSING, LLC ("ORONO SENIOR
HOUSING, LLC") , a Minnesota limited liability company.
The Authority and Orono Senior Housing, LLC, in consideration of the
covenants herein contained, hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. In this Lease:
"City" means the City of Orono, Minnesota.
"Commencement Date" means that date upon which all of the parties
hereto have executed this Lease.
"Development" means the Development Property and the
Improvements to be constructed pursuant to the Development
Agreement.
"Development Agreement" means the Development Agreement dated
as of October l ev , 2001 between the City, the Landlord and
the Tenant.
"Development Property" means the real property that is the subject of
the Development Agreement, which is legally described in Exhibit A.
"Event of Default" means any one or more of the events listed under
Section 10.2 of this Lease.
"Financing Documents" means any of the following documents to be
executed and delivered in connection with the issuance and sale of the
Housing Bonds and the Subordinate Housing Note to be
as described in the Development Agreement.:
"Holder" means the holder of any Mortgage.
"Improvements" means the 62-unit senior housing apartment building
to be constructed by Tenant upon and within the Development Property
pursuant to the Development Agreement.
"Landlord" means the Authority, its successors and assigns.
"Lease" means this lease agreement for the Development Property
entered into pursuant to the Development Agreement.
"Mortgage" means any mortgage or deed of trust on Tenant's interest in
this Lease, the Development Property and the Improvements permitted
under Article 5 of this Lease.
"Permitted Encumbrances" means the matters described in Exhibit C.
"Rent" means any amounts due from Tenant to Landlord under the
terms of this Lease.
"Tenant" means Orono Senior Housing, LLC and its permitted
successors and assigns.
"Tenant's Equipment" means all movable equipment, furniture and
other trade fixtures installed or placed in the Development by or for the
account of Tenant or any occupant of the Development.
"Term" means the period of time set out in Section 2.4 of this Lease.
"Termination Date" means , 2100.
"Unrelated Third Party" means an individual or entity that is not (i) an
individual ("Related Individual")who is an owner or officer of Tenant
or a Related Company, (ii) any subsidiary or parent of Tenant(each of
which is a"Related Company"), or(iii) a general partnership, limited
partnership or limited liability partnership ("Related Partnerships")
Partnership") in which a Related Individual or Related Company is a
partner, or (iv) a corporation or limited liability corporation in which a
Related Individual, Related Company or Related Partnership is an
owner, shareholder, officer, member or manager.
1.2 Exhibits. The following exhibits are attached to and by this
reference made a part of this Lease:
(1) "Exhibit A" - Legal Description of the Development Property
(2) "Exhibit B" - Permitted Encumbrances
ARTICLE 2
LEASE AND TERM
2.1 Grant. Upon the terms and conditions of this Lease, Landlord demises
and leases the Development Property to Tenant and Tenant leases and accepts the
Development Property from Landlord subject to the Permitted Encumbrances.
2.2 Covenants. Landlord covenants to observe and perform all of the
covenants and conditions to be observed and performed by Landlord under this Lease.
Tenant covenants to pay the Rent when due under this Lease and to observe and
perform all of the terms and conditions and covenants to be observed and performed
by Tenant under this Lease.
2.3 Quiet Enjoyment. Landlord covenants that Tenant, on paying the Rent,
shall peacefully have, hold and enjoy the Development Property subject to the terms
of this Lease, subject only to the Permitted Encumbrances.
2.4 Term. The term of this Lease commences on the Commencement Date
and expires at 11:59 p.m. on the Termination Date, unless terminated earlier as
provided in this Lease.
2.5 Purchase of Development Property. On the Termination Date, if there
is no uncured Event of Default by Tenant under this Lease at the time of exercise,
Tenant may purchase the Landlord's entire interest in the Development Property on
the following conditions:
(1) Tenant shall give Landlord not less than thirty(30) days
written notice exercising its right to purchase the Development
Property,
(2) the closing shall take place on a mutually convenient date a
principal office of Landlord or such other location as the parties agi
(3) the purchase price for the Landlord's entire interest in the
Development Property shall be One Dollar($1.00),
(4) at closing, Landlord shall convey fee title in the Development
Property to Tenant by quit claim deed, assignments and other
appropriate instruments of conveyance, such conveyance to be subject
only to (i)the Permitted Encumbrances, (ii) at Landlord's option, a
restriction running with the land for such period as the Landlord may
specify to the effect that the Development may be used only for
residential housing purposes available for occupancy by persons 62
years of age and older, and(iii) any liens and encumbrances created or
consented to by Tenant or arising from the failure of Tenant to perform
or observe by its agreements under this Lease,
(5) this Lease shall automatically terminate on closing,
(6) Tenant shall reimburse Landlord for all reasonable out of pocket
costs and expenses incurred by Landlord in connection with the
conveyance.
2.6 Title to Improvements. Title to the Improvements hereafter erected or
located on the Development Property by or on behalf of the Tenant shall remain the
property of Tenant, except that if(1) Tenant does not purchase the Development
Property pursuant to Section 2.5 of this Lease, all Improvements located on the
Development Property on the Termination Date shall become the property of
Landlord, or(2)Landlord terminates this Lease pursuant to Section 9.2(1) hereof,
then Landlord may repossess the Development, as provided in said Section 9.2(1).
ARTICLE 3
RENT
3.1 Rent. Tenant shall pay Rent to Landlord on of each calendar
year until the Termination Date in the amount of$1.
3.2 Net Lease. It is the intention and purpose of Landlord and Tenant that
this Lease shall be a"Net Lease" to Landlord. All costs and expenses of whatever
character or kind, general and special, ordinary and extraordinary, foreseeable or
Requirement shall apply only if there is a waiting list for available units. Except for
the Senior Housing Restriction and the Orono Preference Requirement it shall not
discriminate upon the basis of race, color, creed, religion, ancestry, national origin or
sex, affectional preference, disability, marital status or status with regard to public
assistance, in the sale, lease, or rental or in the use or occupancy of the Development
Property or any improvements erected or to be erected thereof thereon, or any part
thereof.
ARTICLE 5
FINANCING
5.1 Mortgages. Tenant's interest in this Lease, the Development Property,
the Improvements, or any combination thereof may be encumbered only as provided
by the Financing Documents and the Development Agreement.
5.2 Notice. If any Holder registers with Landlord its name and address in
writing by registered or certified mail, Landlord shall by registered or certified mail,
return receipt requested, addressed as registered with Landlord, give such Holder a
copy of any notice or other communication with respect to any claim that a default
exists or is about to exist under this Lease and a copy of any notice changing
Landlord's address. Any notice given to a Holder shall be deemed duly served when
personally delivered to an officer of Holder or mailed in accordance with Section 8.1
of this Lease.
5.3 Performance. If Tenant fails to make any payment or perform any act
required of Tenant under this Lease, then any Holder may(but shall not be obligated
to) , to the extent permitted under its Mortgage, make such payment or perform such
act with the same effect as if made or performed by Tenant. Entry by a Holder upon
the Development for such purpose or partial performance of the Mortgage shall not
waive or release Tenant from any obligation or default under this Lease except for an
obligation or default fully performed or cured by Holder.
5.4 New Lease.
(a) If(i)this Lease is rejected or disaffirmed pursuant to bankruptcy
law or other law affecting creditor's rights, (ii) Holder gives
written request to Landlord not later than 30 thirty (30)days after
the effective date of such rejection or disaffirmance, (iii) Holder
pays to Landlord all of Landlord's expenses (including
reasonable attorneys' fees) incidental thereto, and (iv) Holder
pays all Rent accrued as of the date of rejection or
disaffirmance, then Landlord shall execute and deliver a new
lease with Holder or its nominee, purchaser, assignee or
transferee, as the case may be, for the remainder of the Term
gig
unforeseeable, and of every kind and nature whatsoever that may be necessary in or
about the operation of the Improvements shall be the responsibility of Tenant.
3.3 Manner of Payment. Rent payable to Landlord shall be paid to
Landlord in immediately available funds of the United States of America at the office
of Landlord set out in Section 9.1 or at such place and to such party as Landlord may
from time to time designate. Except as otherwise provided, Rent that has accrued
prior to the expiration or earlier termination of this Lease shall be absolutely net to
Landlord throughout the Term without offset or deduction. Tenant's obligation to pay
Rent that has accrued prior to the expiration or earlier termination of this Lease shall
survive the expiration or earlier termination of this Lease.
ARTICLE 4
TENANT'S COVENANTS
4.1 Tenant's Equipment. All Tenant's Equipment shall be the property of
Tenant, Tenant's tenants or any lessor of such equipment. Landlord shall have no
interest in Tenant's Equipment. Landlord shall not be responsible for any loss or
damage to Tenant's Equipment except to the extent caused by Landlord's wrongful act
or negligence.
4.2 Maintenance. Tenant shall at Tenant's expense maintain the
Improvements and, to the extent imposed by law on adjacent property owners, the
adjacent sidewalks and curbs in good order and condition, ordinary wear excepted,
and in compliance with legal requirements.
4.3 Repairs. Tenant shall make all necessary or appropriate capital and
operating repairs and replacements and renewals to the Improvements, interior and
exterior, structural and non-structural, ordinary and extraordinary, and foreseen and
unforeseen sufficient for proper operation thereof using materials of good quality.
The need for or appropriateness of such repairs, replacements and renewals and the
quality of the materials used in accomplishing the same shall be in accordance with
the reasonable standards of prudent operators of similar facilities.
4.4 Nondiscrimination; Restrictions on Use. Tenant covenants that during
the Term, (i) it shall permit the Development to be used only for residential rental
housing and may rent units in the Development only to persons who are 62 years of
age or older, and(ii) (the "Senior Housing Restriction"). In addition, the Developer
shall to the extent permitted by law give preference in the rental of units to persons
who are residents or former residents of the City, persons who have a child who is a
resident of the City and persons who have at any time been full time employees of the
City or an agency or department of the City (the "Orono Preference Requirement").
The Senior Housing Restriction shall apply to all units. The Orono Preference
with the same terms as are contained herein except for charges
and encumbrances caused or suffered by Tenant.
(b) Any new lease entered into pursuant to this Section 5.4 shall be
superior to all rights, liens and interest intervening between the
date of this Lease and the date of such new lease. Upon the
request of the new tenant, Landlord shall execute and deliver a
memorandum of the new lease in recordable form so that notice
of the new lease may be placed of record by the new tenant.
(c) The rights hereunder of Holders shall be exercisable by such
Holders in the order of the priority of lien or other security
interest of their respective Mortgages.
(d) At Tenant's expense, upon written request of Tenant, any
Holder, or any prospective Holder, Landlord shall deliver to
them or any of them a separate written instrument signed and
acknowledged by Landlord setting forth and confirming the
provisions of this Section 5.4, and acknowledging to them or
any of them in writing the receipt by Landlord of any notice or
instrument given, sent or delivered to Landlord pursuant to the
provisions of this Section 5.4.
(e) When a new lease is entered into such Holder or(if reasonably
approved by Landlord pursuant to the Development Agreement)
its designee (such holder or designee the "Acquiring Holder,"
and the Mortgage of such Acquiring Holder the "Acquiring
Holder's Leasehold Mortgage"), the liens on and estates and
other interests in the Development Property or this Lease of all
persons holding directly or indirectly under or through Tenant
(including the Acquiring Holder's Leasehold Mortgage), other
than liens, estates and interests which are subordinate to the
Acquiring Holder's Leasehold Mortgage, shall immediately and
without documentation continue in effect, attach to the new
lease and be reinstated as to each other to the same extent, and in
the same manner, order and priority, as if(i)the new lease were
this Lease, (ii)this Lease had not been terminated, and (iii)the
Acquiring Holder had acquired the leasehold estate under this
Lease by assignment on the date the term of the new lease
commences. Each lien, estate or interest which could have been
extinguished by the foreclosure of the Acquiring Holder's
Leasehold Mortgage shall be deemed to be subordinate to the
Acquiring Holder's Leasehold Mortgage.
(f) Notwithstanding any provision of this Section 5.4 apparently to
the contrary, Landlord shall not be required to provide any
notice to any Holder under this Section 5.4 unless such Holder
has provided Landlord written notice of its existence in
accordance with Section 5.2 hereof.
(g) Upon request of a Holder, Landlord will enter into an agreement
with such Holder confirming the provisions of this Section 5.4
for the benefit of such Holder and acknowledging the Holder's
Mortgage and the assignments made therein.
5.5 Further Assurances. Landlord agrees to execute such amendments to
this Lease and further agreements as may reasonably be requested by any Holder,
provided such amendments and further agreements do not impose any material
obligations or liabilities upon Landlord, or affect the rights of Landlord hereunder in
any material respect.
5.6 Termination of Lease. No cancellation, surrender, abandonment,
acceptance of surrender or modification or amendment of this Lease shall be binding
upon any Holder or affect the lien of any Mortgage if done without the prior written
consent of said Holder (provided (x) that no consent shall be required to a surrender
on the Termination Date or earlier termination hereof, and (y) consents to any
modification or amendment to this Lease shall not be unreasonably withheld or
delayed by such Holder).
ARTICLE 6
ASSIGNMENT AND SUBLETTING
6.1 Assignments. Tenant and its successors and assigns shall not assign or
sublet all or substantially all of Tenant's interest in this Lease or the Development
without the prior written consent of Landlord, except as otherwise provided in (a) the
Development Agreement, (b)Article 5 hereof, or (c) Section 6.2 hereof
6.2 Subleases.
(a) Tenant may enter into subleases of the housing in the Improvements as
provided in the Development Agreement without the need for Landlord
consent.
(b) Units in the Development may be subleased only for purposes of
residential housing and no unit may be subleased to a person under 62
years of age.
6.3 Other Agreements. Tenant may enter into the Financing Documents
and such other agreements affecting the Development Property as are contemplated by
the Development Agreement.
ARTICLE 7
END OF TERM
7.1 Surrender. Upon termination of this Lease or of Tenant's right of
possession of the Development Property, Tenant shall immediately quit and surrender
possession of the Development to Landlord in its then condition.
7.2 Vesting. Upon termination of this Lease, if Tenant does not exercise
Tenant's option to purchase under Section 2.5 of this Lease, all right, title and interest
of Tenant in the Development shall automatically vest in Landlord without the
necessity of confirmation by any other document. However, upon the request of
Landlord, such vesting shall be confirmed in separate recordable instruments in form
and substance acceptable to Landlord.
7.3 Tenant's Equipment. Any of Tenant's Equipment remaining in the
Development after termination of this Lease or of Tenant's right of possession of the
Development Property shall be deemed conclusively to have been abandoned by
Tenant and, after notice to Tenant and Tenant's failure to respond within twenty(20)
business days after service thereof, may be appropriated, sold, destroyed, or disposed
of by Landlord without further notice or obligation to compensate Tenant or account
therefor.
7.4 Acceptance. No modification, termination or surrender of this Lease or
surrender of the Development Property or any part thereof or any interest therein by
Tenant shall be valid or effective unless agreed to and accepted in writing by
Landlord and any Holders, and no act by any representative or agent of Landlord or
any Holder other than such written agreement and acceptance shall constitute
acceptance thereof.
7.5 Merger. There shall be no merger of the leasehold estate created by this
Lease with the fee estate in the Development Property by reason of the same party
owning or holding any interest in such leasehold estate and any interest in such fee
estate. No merger of the leasehold estate and fee estate shall occur unless and until all
parties (including any Holder)having any interest in the leasehold estate created by
this Lease and the fee estate in the Development Property shall join in and duly record
a written instrument effecting such merger.
ARTICLE 8
NOTICES AND ESTOPPELS
8.1 Notices. All notices and other communications from Landlord to
Tenant or from Tenant to Landlord under this Lease shall be in writing and shall be
deemed duly served if delivered personally to an officer of the party being served or if
mailed by registered or certified mail, postage prepaid, addressed
if to Landlord:
if to Tenant:
or such other address or addresses as Landlord or Tenant shall have designated in
writing to the other. Notices which are mailed shall be deemed to have been given on
the date received as evidenced by the customary registered or certified mail receipt.
8.2 Estoppels. Landlord or Tenant shall at any time and from time to time
upon not less than thirty(30) days prior notice from the other execute, acknowledge
and deliver a written statement certifying
(1) that this Lease is in full force and effect, subject only to such
modification(if any) as may be set out therein,
(2) the dates (if any)to which Rent is paid in advance,
(3) that there are not, to such party's knowledge, any uncured
defaults on the part of the other party, or specifying such defaults if any
are claimed, and
(4) such other matters as may be reasonably required by the
requesting party.
Any such statement may be relied upon by any prospective transferee or
encumbrancer of all or any portion of the Development or any interest therein or any
assignee of any such persons. If any party fails to timely deliver such statement, such
party shall be deemed to have acknowledged that this Lease is in full force and effect,
without modification except as may be represented by the other, and that there are no
uncured defaults in the other's performance.
ARTICLE 9
DEFAULT
9.1 Events of Default. Any one or more of the following events constitutes
an Event of Default:
(1) If Tenant shall have failed to pay when due Rent or any other
amount payable by Tenant pursuant to this Lease within five (5) ten
(10) days following Tenant's receipt of written notice from Landlord
stating that such payment was not made; or
(2) If Tenant shall have failed to perform any of the other
covenants, terms, conditions or provisions of this Lease or any of its
obligations under the Development Agreement within thirty (30) sixty
(60) days after Tenant's receipt of written notice specifying such
failure; provided, however, with respect to those failures which cannot
with due diligence be cured within said 30 60-day period, Tenant shall
not be deemed to be in default hereunder if Tenant commences to cure
such default within such 30 60-day period and thereafter continues the
curing of such default with all due diligence;
9.2 Termination. If an uncured Event of Default exists under this Lease,
then Landlord may, subject to Section 9.5 hereof, exercise one or more of the
following remedies in addition to any other rights and remedies provided at law or in
equity:
(1) Landlord may terminate this Lease by written notice to Tenant
and may forthwith repossess the Development and recover as damages
the amounts provided in Section 9.3 hereof, or
(2) Landlord may terminate Tenant's right of possession and
repossess the Development without demand or notice of any kind and
without terminating this Lease, in which event Landlord may (but will
not be obligated to) relet all or any part of the Development or any part
thereof for the account of Tenant for such rent and upon such terms as
Landlord deems advisable and may make any changes, additions,
improvements, redecorations and repairs to the Development as
Landlord deems advisable without affecting Tenant's liability under
this Lease.
9.3 Payments. If pursuant to Section 9.2 this Lease is terminated or
Landlord terminates Tenant's right of possession and repossesses the Development,
Tenant shall pay to Landlord on demand the sum of:
(1) all unpaid Rent owing at the time of termination or repossession,
as the case may be,
(2) all expenses (together with interest thereon at a rate of twelve
percent(12%) per annum from the date paid by Landlord) incurred by
Landlord in terminating, repossessing and reletting including but not
limited to costs of changes, additions, improvements, redecorations and
repairs, brokerage and legal fees, and the collection of Rent, and
(3) any deficiency between the Rent, when due in accordance with
this Lease, for the remainder of the Term and the payments, if any,
received by Landlord from any reletting of the Development or portions
thereof.
9.4 Injunctive Relief. If an uncured Event of Default exists under this
Lease, Landlord shall have the right, in addition to any remedy available to Landlord
under Section 9.2 of this Lease, to institute from time to time an action or actions for
injunctive and/or other equitable relief.
9.5 Forbearance. If there is a Mortgage on Tenant's interest in this Lease
or the Development Property, Landlord will not terminate this Lease or Tenant's right
of possession of the Development Property pursuant to Section 9.2 of this Lease, if
Holder or any purchaser or transferee of Tenant's interest in this Lease or the
Development by reason of foreclosure or other proceedings or by deed or assignment
in lieu of such proceedings (or an assignee of Holder or such purchaser or transferee)
shall, within one hundred eighty(180) days after acquiring Tenant's interest in this
Lease or the Development, cure all defaults susceptible of being cured by such entity
(or, if such cure would reasonably require more than one hundred eighty(180) days
and thereafter promptly, effectively and continuously proceed to cure such default).
Nothing in this Section shall affect Landlord's right to enforce any remedy under this
Lease for an Event of Default except, so long as Holder is in the process of curing
such Event of Default or foreclosing its Mortgage under this Section, the right to
terminate this Lease or Tenant's right of possession of the Development.
9.6 Costs. Tenant shall indemnify Landlord against all costs and charges
(including reasonable legal fees) lawfully and reasonably incurred in enforcing
payment of Rent, and in obtaining possession of the Development after an Event of
Default of Tenant or upon expiration or earlier termination of this Lease, or in
enforcing any covenant, proviso or agreement of Tenant contained in this Lease.
Landlord shall indemnify Tenant against all costs and charges (including legal fees)
lawfully and reasonably incurred in enforcing any covenant, proviso or agreement of
Landlord contained in this Lease.
9.7 Waiver of Default. No failure or delay by Landlord or Tenant to insist
on strict performance of any term of this Lease or to exercise any right, power, or
remedy upon a breach of this Lease shall constitute a waiver of such term or such
breach.
9.8 Tenant's Liability. Notwithstanding anything to the contrary provided
in this Lease, it is specifically understood and agreed, such agreement being a primary
consideration for the execution of this Lease by Tenant, that (i) there shall be
absolutely no personal liability on the part of Tenant, or its officers, directors,
members, employees and agents, to Landlord with respect to any of the terms,
covenants and conditions of this Lease, and(ii) Landlord shall look solely to
recovering possession of the Development Property in the event of any breach by
Tenant of any of the terms, covenants and conditions of this Lease to be performed by
Tenant.
ARTICLE 10
MISCELLANEOUS
10.1 Relationship. Nothing contained in this Lease shall create any
relationship between the parties hereto other than that of lessor and lessee. Landlord
and Tenant disclaim any intention to create a joint venture, partnership or agency
relationship.
10.2 Number and Gender. The words "Landlord" and "Tenant" as used
herein includes the plural as well as the singular. The use of specific gender includes
any other gender as applicable.
10.3 Captions. The captions in this Lease are for convenience only and shall
have no effect on the construction or interpretation of this Lease.
10.4 Time. Time is of the essence of this Lease and each of its provisions.
10.5 Construction. The provisions of this Lease shall be construed as a
whole according to their common meaning, and not strictly for or against Landlord or
Tenant.
10.6 Law. This Lease shall be governed by and construed under the laws of
Minnesota.
10.7 Binding. This Lease is binding upon and inures to the benefit of
Landlord and Tenant and their respective successors and assigns and shall not be for
the benefit of any third parties other than such successors and assigns.
10.8 Short Form. Landlord and Tenant agree upon request of the other to
execute a Short Form of this Lease suitable for recording.
10.9 Severability. If any term of this Lease or application of it to any person
or circumstance is invalid or unenforceable, the remainder of this Lease or the
application of it to other persons or circumstances shall not be affected, and each
provision of this Lease shall be valid and enforceable to the extent permitted by law.
10.10 Counterparts. This Lease may be executed in several counterparts, each
of which shall be an original and all of which shall constitute but one and the same
instrument.
10.11 Interest Rate. Any interest due from one party to another hereunder
shall be at the interest rate specified herein or the maximum rate permitted by
applicable law, if less.
IN WITNESS OF THIS LEASE, Landlord and Tenant have properly executed
it as of the date set out at its head.
LANDLORD ORONO HOUSING AND REDEVELOPMENT AUTHORITY
By: Name: Its:
Executive Director
[SIGNATURE PAGE TO LEASE (DEVELOPMENT PROPERTY)]
TENANT ORONO SENIOR HOUSING, LLC, a Minnesota limited liability
company By: Wedum Foundation, its Manager Member By: Name:
Its:
[SIGNATURE PAGE TO LEASE (DEVELOPMENT PROPERTY)]
EXHIBIT A
LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
M l:796288.01 796288.03
EXHIBIT B
PERMITTED ENCUMBRANCES
M l:796288.01 796288.03
EXHIBIT C
FORM OF TIF NOTE
No. R- 1
UNITED STATES OF AMERICA
STATE OF MINNESOTA
ORONO HOUSING AND
REDEVELOPMENT AUTHORITY
TAX INCREMENT REVENUE
NOTE OF 2001
[1] The Orono Housing and Redevelopment Authority(the "HRA"),
located in the City of Orono, Hennepin County, Minnesota, hereby acknowledges
itself to be indebted and, for value received, hereby promises to pay to Orono Senior
Housing, LLC, a Minnesota limited liability company, or its registered assigns (the
"Registered Owner"), but only in the manner,at the times, from the sources of
revenue, and to the extent hereinafter provided, the Principal Amount of this Note (as
defined in paragraph [2] hereof) and to pay interest on the unpaid portion of the
Principal Unpaid Amount of this Note at the rate of interest of 7.00%per annum.
Interest shall accrue on the Principal Amount from , , and shall be
computed on the basis of a 360-day year consisting of 12 30-day months. This Note is
the "TIF Note" described and defined in that certain Development Agreement, dated
as of , 2001 (as the same may be amended from time to time, the
"Development Agreement"), among the HRA, the City of Orono, Minnesota, and
Orono Senior Housing, LLC, a Minnesota limited liability company, as the initial
Developer under the Development Agreement. Each capitalized term which is used
but not otherwise defined in this Note shall have the meaning given to that term in the
Development Agreement.
[2] The Principal Amount of this Note shall be $
[3] Subject to the terms hereof, amounts due on this Note shall be payable
on each February 1 and August 1, commencing February 1, , and continuing
through February 1, (the "Payment Dates"), and on each "Additional Payment
Date" described in paragraph [5] hereof. All amounts of accrued interest on this Note
which are not paid in full on any Payment Date shall also accrue additional interest
from the date of such non-payment (the "Compound Interest") until paid at the rate of
interest of 7.00%per annum.
[4] On each Payment Date (or, if not a business day of the HRA, the first
business day thereafter) the HRA shall pay by check or draft mailed to the person that
was the Registered Owner of this Note at the close of the last business day of the HRA
preceding such Payment Date an amount equal to the lesser of(1) the Available Tax
Increments (which generally consist of 90% of the tax increments from the HRA's
Tax Increment Financing District No. 1-1 within its Housing Project Area No. 1)
received by the HRA within the 6-month period preceding said Payment Date and(2)
the sum of(i) the accrued and unpaid interest on the Principal Amount and(ii) the
unpaid Principal Amount of this Note. All payments made by the HRA under this
Note shall be applied first to pay the accrued and unpaid interest on the Principal
Amount of this Note and second to pay the unpaid Principal Amount hereof. The
HRA shall have the right on any Payment Date to prepay the principal amount of this
Note in whole or in part without penalty or premium and without the prior written
consent of the Registered Owner or the Developer.
[5] This Note shall terminate and be of no further force and effect on any
date upon which the HRA shall have terminated the Development Agreement or on
the last Payment Date following payment thereon of the amounts due hereon,
whichever occurs earliest.
[6] The HRA makes no representation or covenant, express or implied, that
the revenues described herein will be sufficient to pay, in whole or in part, the
amounts which are or may otherwise become due and payable hereunder. Any
amounts which have not become due and payable on this Note on or before the final
Payment Date or Additional Payment Date, as the case may be, shall no longer be a
debt or obligation of the HRA whatsoever.
[7] The HRA's payment obligations hereunder shall be further conditioned
on the Developer's compliance with the terms and conditions of the Development
Agreement and on the fact that there shall not at the time have occurred and be
continuing an Event of Default under the Development Agreement, and, further, if
pursuant to the occurrence of an Event of Default under the Development Agreement
the HRA duly elects to terminate the Development Agreement pursuant to its terms,
the HRA shall have no further debt or obligation under this Note whatsoever;
provided that if, pursuant to an Event of Default, the HRA elects pursuant to Section
7.2 of the Development Agreement to withhold payment otherwise due hereon, said
suspended payment shall become payable hereon upon cure of the Event of Default.
Reference is hereby made to the provisions of the Development Agreement for a fuller
statement of the obligations of the Developer and of the rights of the HRA thereunder,
and said provisions are hereby incorporated by reference into this Note to the same
extent as though set out in full herein. The execution and delivery of this Note by the
HRA, and the acceptance thereof by the initial Registered Owner hereof, shall
conclusively establish this Note as the "TIF Note" (and shall conclusively constitute
discharge of the HRA's obligation to issue and deliver the same) under the
Development Agreement.
[8] This Note is a special and limited revenue obligation but not a general
or moral obligation of the HRA and is payable by the HRA only from the sources and
subject to the qualifications and limitations stated or referenced herein. Neither the
full faith and credit nor the taxing powers of the HRA are pledged to or available for
the payment of this Note, and no property or other asset of the HRA, save and except
the above referenced Available Tax Increments, is or shall constitute a source of
payment of the HRA's obligations hereunder.
[9] This Note is issued by the HRA in aid of financing a project pursuant to
and in full conformity with the Constitution and laws of the State of Minnesota,
including Minnesota Statutes, Sections 469.174 through 469.179, and including
specifically but without limitation Section 469.178, Subdivision 4, thereof.
[10] This Note may be assigned but upon such assignment the assignor shall
promptly notify the BRA thereof in writing, and the assignee shall surrender this Note
to the HRA either in exchange for a new fully registered note or for transfer of this
Note on the registration records for the Note maintained by the HRA. As a condition
to any such transfer, the transferee shall have delivered to the HRA an executed
Investor Letter in the form of Exhibit F to the Development Agreement. Each such
assignee shall take this Note subject to the foregoing • i ditions and subject to all
provisions stated or referenced herein.
[11] IN WITNESS WHEREOF, the k aple Gro e Orono Housing and
Redevelopment Authority has caused this Note to . ecuted by the manual
signatures of its Chair and Executive Director, has caused the official seal of the HRA
to be omitted herefrom, as permitted by law, and has caused this Note to be issued and
dated as of ,
Chair Executive Director
CERTIFICATION OF REGISTRATION
It is hereby certified that the foregoing Note was as of the latest date listed
below registered in the name of the last Registered Owner noted below, and that, at
the request of said Registered Owner of this Note, the undersigned has as of said
applicable date registered this Note as to principal and interest on the Note in the
name of such Registered Owner, as indicated in the registration blank below, on the
books kept by the undersigned for such purposes.
NAME OF REGISTERED DATE OF SIGNATURE OF
OWNER REGISTRATION HRA EXECUTIVE
DIRECTOR
Orono Senior Housing, LLC,
a Minnesota Limited Liability
Company , 1999 ,2001
EXHIBIT D
CERTIFICATE OF COMPLETION AND PARTIAL RELEASE
The undersigned hereby certifies that Orono Senior Housing, LLC, a Minnesota
limited liability company, and/or permitted assigns (the "Developer") , has fully and
completely complied with the Developer's obligations under Article IV of that
document entitled"Development Agreement," dated October November_, 2001
between the City of Orono, the Orono Housing and Redevelopment Authority and
Orono Senior Housing, LLC, a Minnesota limited liability company, and filed for
record , 20_, as Document No. in the office of the Hennepin
County Recorder with respect to construction of that phase of the Improvements (as
defined in the Development Agreement) constructed on the real property described in
Exhibit A hereto. As to the real property described in Exhibit A, the obligations of
Article IV of the Development Agreement are terminated and satisfied and released of
record.
DATED:
CITY OF ORONO, MINNESOTA
By:
Its Mayor
By:
Its City Clerk
STATE OF MINNESOTA )
) ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
, by and
, the Mayor and City Clerk of the City of Orono,
Minnesota, a municipal corporation under the laws of the State of Minnesota, on
behalf of the city.
Notary Public
ml:796288.01 796288.03
EXHIBIT E
Form of Income Certification
Certification of Tenant Eligibility
UNIT NUMBER:
I/We, the undersigned, being first duly sworn, state that I/we have read and
answered fully and truthfully each of the following questions for all persons who are
to occupy the unit in the Orono Woods Apartments development for which
application is made, all of whom are listed below:
1.2.3.4.5.Name of Members of the Household Relationship to Head of Household Age
Social Security Number Place of EmploymentHead - - Spouse -
Income Computation
6. Anticipated Annual Income. The anticipated total annual income from all
sources of each person listed in item 1 above for the twelve month period beginning
on the date of this certificate, including income described in (a) below, but excluding
all income described in(b) below, is $
(a) The amount set forth above includes all of the following income (unless
such income is described in (b) below;
(i) all wages and salaries, overtime pay, commissions, fees, tips and
bonuses before payroll deductions;
(ii) net income from the operation of a business or profession or
from the rental of real or personal property(without deducting
expenditures for business expansion or amortization of capital
indebtedness or any allowance for depreciation of capital assets);
(iii) interest and dividends (including income from assets as set forth
in item 7(b) below);
(iv) the full amount of periodic payments received from social
security, annuities, insurance policies, retirement funds, pensions,
disability or death benefits and other similar types of periodic receipts;
(v) payments in lieu of earnings, such as unemployment and
disability compensation, workmen's compensation and severance pay;
(vi) the maximum amount of public assistance available to the above
persons;
(vii) periodic and determinable allowances, such as alimony and
child support payments and regular contributions and gifts received
from persons not residing in the dwelling;
(viii) all regular pay, special pay and allowances of a member of the
Armed Forces (whether or not living in the dwelling) who is the head of
the household or spouse; and
(ix) any earned income tax credit to the extent it exceeds income tax
liability.
(b) The following income is excluded from the amount set forth above:
(i) casual, sporadic or irregular gifts;
(ii) amounts that are specifically for or in reimbursement of medical
expenses;
(iii) lump sum additions to family assets, such as inheritances,
insurance payments (including payments under health and accident
insurance and workmen's compensation), capital gains and settlement
for personal or property losses;
(iv) amounts of educational scholarships paid directly to student or
educational institution, and amounts paid by the government to a
veteran for use in meeting the costs of tuition, fees, books and
equipment, but in either case only to the extent used for such purposes;
(v) hazardous duty pay to a member of the household in the armed
forces who is away from home and exposed to hostile fire;
(vi) relocation payments under Title H of the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970;
(vii) income from employment of children (including foster children)
under the age of 18 years;
(viii) foster child care payments;
(ix) the value of coupon allotments under the Food Stamp Act of
1977;
(x) payments to volunteers under the Domestic Volunteer Service
Act of 1973;
(xi) payments received under the Alaska Native Claims Settlement
Act;
(xii) income derived from certain submarginal land of the United
States that is held in trust for certain Indian tribes;
(xiii) payments on allowances made under the Department of Health
and Human Services' Low-Income Home Energy Assistance Program;
(xiv) payments received from the Job Partnership Training Act;
(xv) income derived from the disposition of funds of the Grand River
Bank of Ottawa Indians; and
(xiv) the first $2,000 of per capita shares received from judgments
awarded by the Indian Claims Commission or the Court of Claims or
from funds held in trust for an Indian tribe by the Secretary of Interior.
7. Net Family Assets. If any of the persons described in item 1 above (or any
person whose income or contributions were included in item 6 above) has any
savings, stocks, bonds, equity in real property or other form of capital investment
(excluding interests in Indian trust lands), provide:
(a) the total value of all such assets owned by all such persons:
$ ;
(b) the amount of income expected to be derived from such assets in the
12-month period commencing on the date hereof:
$ ;
(c) the amount of such income included in item 6:
$ ;
8. Students
(a) Will all of the persons listed in item 1 above be or have they been full-
time students during five calendar months of this calendar year at an educational
institution(other than a correspondence school) with regular faculty and students?
Yes No
(b) (Complete only if the answer to item 8(a) is "Yes") Is any such person
(other than nonresident aliens) married and eligible to file a joint federal income tax
return?
Yes No
The above information is full, true and complete to the best of my knowledge.
I have no objections to inquiries being made for the purpose of verifying the
statements made herein. The undersigned acknowledge that the lease executed by the
undersigned may be canceled upon notice as provided therein if the undersigned have
misrepresented any of the information set forth above.
Date:
Signature
FOR COMPLETION BY PROJECT OWNER OR MANAGER ONLY:
A. Calculation of eligible income:
(1) Enter amount entered for entire household in item 6 above:
(2) If the amount entered in item 7(a) above is greater than $5,000,
enter the greater of(i) the amount entered in 7(b) less the amount
entered in 7(c) or(ii) 10% of the amount entered in 7(a):
(3) TOTAL ELIGIBLE INCOME (Line A(I)plus line A(2):
B. The amount entered in A(3) (Total Eligible Income) is:
Less than $ , which is an amount
equal to 50% of median income for the Minneapolis-St.
Paul SMSA.
More than the above-mentioned amount.
C. Number of apartment unit assigned:
D. This apartment unit was was not last occupied for a
period of at least 31 consecutive days by a person or persons whose aggregate
anticipated annual income, as certified in the above manner, was less than or equal to
the amount at which a person would have qualified under B above.
E. Applicant:
Qualifies as a Lower-Income Tenant.
Does not qualify as a Lower Income Tenant,
Owner or Manager
EXHIBIT F
INVESTOR LETTER
Orono Housing and
Redevelopment Authority
Orono, Minnesota
City of Orono, Minnesota
Orono, Minnesota
Re: Orono Housing and Redevelopment Authority Tax Increment
Revenue Note
Ladies and Gentlemen:
The undersigned representative of (the "Purchaser"),
being the purchaser of the Orono Housing and Redevelopment Authority Tax
Increment Revenue Note of 2001, dated as of June November , 2001 (the "Note"),
does hereby certify, represent and warrant for the benefit of the addressees that:
(a) The Purchaser is either a bank, savings and loan association, registered
investment company, insurance company or other "Accredited Investor" as defined in
Rule 501(a) of Regulation D of the Securities Act of 1933, as amended. Purchaser (i)
is duly and validly organized under the laws of its jurisdiction of incorporation or
organization, (ii) is legally authorized to purchase the Note as lawful investment of the
Purchaser, (iii) has such knowledge and experience in business and financial matters
as to be capable of evaluating the merits and risks of an investment in the Note on the
basis of the information and review of documents described in section (d) below and
the investigation which the Purchaser has conducted and(iv) can bear the economic
risk of the purchase of the Note.
(b) The Purchaser has purchased the Note for its own account for
investment purposes only or has become the registered owner thereof for security
purposes and not for the account of any other person and not for distribution,
assignment or resale; provided, however, the Purchaser may dispose of the Note or
any portion thereof or interest therein in compliance with paragraph 10 of the Note
and provided further that a sale of shares in any investment company that purchases
the Note will not, in and of itself, constitute a distribution of the Note for the purposes
of this section (b).
(c) Neither the City of Orono, Minnesota(the "City"), the Orono Housing
and Redevelopment Authority(the "HRA") nor its counsel shall be deemed to have
made any representations with respect to the Note or the Development Agreement or
tax increment financing district referred to therein as of any date, except as expressly
provided in the Note or the Development Agreement.
(d) The Purchaser has obtained and has read and reviewed such documents,
instruments and information related to the issuance of the Note as the Purchaser has
requested from the City and the HRA. The Purchaser has also reviewed such other
information as requested and has been provided an opportunity to ask questions of,
and has received answers from, representatives of the City and the HRA regarding the
terms and conditions of the Note. We understand that the Note is payable solely from
certain tax increment pledged to the payment thereof and understand that such tax
increment may not be sufficient to pay stated principal of and interest on the Note and
that there may be other risks in such an investment which are not described therein.
(e) The undersigned is a duly appointed, qualified and acting officer or
representative of the Purchaser and authorized to make the certifications,
representations and warranties contained herein and the purchase of the Note
constitutes a lawful investment of the Purchaser.
(f) The Purchaser acknowledges that the City, the HRA, the members of
their respective governing bodies and their officers (each individually an "Issuer
Party" and collectively the "Issuer Parties") have not undertaken to furnish
information to the Purchaser or to ascertain the accuracy or completeness of any
information that may have been furnished to the Purchaser by or on behalf of the City,
the HRA or the prior holder of the Note relating to the tax increment pledged to
payment of the Note and that none of the Issuer Parties have made any representations
concerning the accuracy or completeness of any information supplied to the Purchaser
or relating to the security for the Note. The Purchaser hereby waives any
requirements of due diligence in investigation or inquiry on the part of any Issuer
Parties and all claims, actions, or causes of action which the Purchaser may have
directly or indirectly from or relating to any action which the Issuer Parties took or
could have taken, in connection with the issuance and sale of the Note to the
Purchaser.
IN WITNESS WHEREOF, I have hereunder set my hand the day of
Name:
Title:
RESOLUTION NO.
RESOLUTION APPROVING THE ISSUANCE AND
SALE OF SENIOR HOUSING REVENUE BONDS
(ORONO WOODS APARTMENT PROJECT),
SERIES 2001 AND AUTHORIZING, EXECUTION
AND DELIVERY OF DOCUMENTS RELATED
THERETO
BE IT RESOLVED by the City Council of the City of Orono, Minnesota as
follows:
1. Authority. The City has been requested to issue one or more series of its
Senior Housing Revenue Bonds (Orono Woods Apartment Project), Series 2001 (as
defined in the Indenture, the "Bonds"), on behalf of Orono Senior Housing, LLC, a
Minnesota limited liability company (the "Owner"), pursuant to (a) its authority under
Minnesota Statutes, Section 462C, as amended (the "Act"), and (b) a Trust Indenture,
dated as of November 1, 2001 (the "Indenture"), between the City and U.S. Bank
Trust National Association, as Trustee (the "Trustee")
2. Public Hearing. The City conducted a public hearing (the "Public
Hearing), on May 14, 2001, on the Owner's proposal that the City issue the Bonds and
adopt a housing program related thereto (the "Housing Program") for the purpose of
loaning the proceeds thereof to the Owner to finance the cost of the development,
acquisition, construction, equipping and financing of 62 units of multifamily housing
for seniors (the "Project") to be owned by the Owner and to be located in the City at
Brown Road and Wayzata Blvd. All parties who appeared at the Public Hearing were
given an opportunity to express their views with respect to the proposal and the
Housing Program was approved.
3. Documents Presented. Forms of the following documents relating to
the Bonds have been submitted to the City and are now on file in the City's offices:
(a) a Loan Agreement (the "Loan Agreement"), dated as of
November 1, 2001, between the City and the Owner, whereby the City has
agreed to loan the proceeds of the Bonds to the Owner to finance the Project
and the Owner has agreed to repay the loan by amounts payable under the
Loan Agreement;
(b) the Indenture, authorizing the issuance and setting the terms of
the Bonds and pledging the revenues to be derived from the Loan Agreement
as security for the Bonds, and setting forth proposed recitals, covenants and
agreements relating thereto;
(c) a Combination Mortgage, Security Agreement, Fixture
Financing Statement and Assignment of Leases and Rents (the "Mortgage"),
dated as of November 1, 2001, from the Owner to the City, by which the
Owner grants to the City a first mortgage lien on, a security interest in, and an
assignment of leases and rents of, its leasehold and ownership interest in the
Mortgaged Property (as defined therein);
(d) a Subordinated Combination Mortgage, Security Agreement,
Fixture Financing Statement and Assignment of Leases and Rents (the
"Subordinate Mortgage"), dated as of November 1, 2001, from the Owner to
the City, by which the Owner grants to the City a second mortgage lien on, a
security interest in, and an assignment of leases and rents of, its leasehold and
ownership interest in the Mortgaged Property;
(e) an Assignment of Mortgage (the "Assignment"), dated as of
November 1, whereby the City assigns its interest in the Mortgage and the
Subordinate Mortgage to the Trustee;
(f) a Development Agreement (the "Development Agreement),
dated as of November 1, 2001, between the City, the Orono Housing and
Redevelopment Authority(the "HRA") and the Owner, by which the Owner
agrees to develop and construct the Project and the HRA agrees to provide tax
increment financing to the Project;
(g) a Bond Purchase Agreement(the "Bond Purchase Agreement"),
between the City, the Owner, and Miller Johnson Steichen Kinnard, Inc. (the
"Underwriter") (the documents described in (a) through (g) above being the
"Bond Documents"); and
(h) a form of the Official Statement (the "Official Statement"), to be
completed, describing the offering of the Bonds and certain terms and
provisions of the documents recited herein.
4. Authorization of Bonds. The City hereby authorizes the issuance of the
Bonds under the Act and the Indenture, the sale of the Bonds to the Underwriter in
accordance with the Bond Purchase Agreement and the loan of the proceeds of the
Bonds to the Owner in accordance with the Loan Agreement.
5. Authorization of Documents Presented. The forms of the Bond
Documents are approved, with such additions or modifications thereto and deletions
therefrom as may be approved by the Mayor, the City Clerk, the Finance Director or
the City Administrator prior to the execution and delivery thereof, such approval to be
conclusively evidenced by the execution and delivery thereof by the appropriate
officers of the City.
6. Execution and Delivery of Bonds. The City is hereby authorized to
issue one or more series of Bonds in an aggregate principal amount not to exceed
$9,000,000, in the form and upon the terms set forth in the Indenture, which terms are
for this purpose incorporated in this resolution (the "Final Resolution") and made a
part hereof; provided, however, that the maturities of the Bonds, the interest rates
thereon, the numbering, and the rights of optional redemption with respect thereto
shall all be as set forth in the final form of Indenture to be approved, executed and
delivered by the officers of the City authorized to do so by the provisions of this Final
Resolution, which approval shall be conclusively evidenced by such execution and
delivery; and provided further that, in no event, shall such maturities exceed 35 years
or such rates of interest produce an average net interest cost in excess of 7.50% per
annum. The Underwriter has agreed pursuant to the provisions of the Bond Purchase
Agreement, and subject to the conditions therein set forth, to purchase the Bonds at
the purchase price set forth in the Bond Purchase Agreement, and said purchase price
is hereby accepted. The Mayor, the City Clerk, the Finance Director, the City
Administrator and other officers of the City are authorized in their discretion, at such
time, if any, as they may deem appropriate, to execute the Bonds as prescribed in the
Indenture and to deliver them to the Trustee, together with a certified copy of this
Final Resolution and the other documents required by Section 2.08 of the Indenture,
for authentication, registration and delivery to the Underwriter.
7. Execution and Delivery of Bond Documents. The Mayor, the City
Clerk, the Finance Director and the City Administrator(or in their absence, the deputy
or acting Mayor or City Clerk) are hereby authorized in their discretion at such time,
if any, as they may deem appropriate, to execute and deliver the Bond Documents in
the name and on behalf of the City.
8. Official Statement. The City hereby consents to the completion of the
Official Statement and its circulation by the Underwriter in offering the Bonds for sale
and the completion of a final form of the Official Statement to reflect the final terms
of the Bonds and the foregoing described agreements; provided, however, that the
City has not been requested to and has not participated in the preparation of the
Official Statement or reviewed or verified the information in the Official Statement
and takes no responsibility for and makes no representations or warranties as to, the
accuracy, sufficiency or completeness of such information or the information to be
included in the final form of the Official Statement.
9. Certificates, etc. The Mayor, the City Clerk, the Finance Director and
the City Administrator (or in their absence the deputy or acting Mayor, City Clerk,
Finance Director or City Administrator) are authorized in their discretion, at such
time, if any, as they may deem appropriate, to prepare and furnish to bond counsel and
the purchaser of the Bonds, when issued, certified copies of all proceedings and
records of the City relating to the Bonds, and such other affidavits and certificates as
may be required to show the facts appearing from the books and records in the
officers' custody and control or as otherwise known to them; and all such certified
copies, certificates and affidavits, including any heretofore furnished, shall constitute
representations of the City as to the truth of all statements contained therein.
10. Nature of City's Obligations. No covenant, stipulation, obligation,
representation, or agreement herein contained or contained in the Bonds or the Bond
Documents shall be deemed to be a covenant, stipulation, obligation, representation,
or agreement of any Council member, officer, agent, or employee of the City in that
person's individual capacity, and neither the Council nor any officer or employee
executing the Bonds or such documents shall be liable personally on the Bonds or be
subject to any representation, personal liability or accountability by reason of the
issuance thereof. No provision, representation, covenant or agreement contained in
the Bonds or in any other document related to the Bonds, and no obligation therein or
herein imposed upon the City or the breach thereof, shall constitute or give rise to a
general or moral obligation of the City or any charge upon its general credit or taxing
powers. In making the agreements, provisions, covenants and representations set
forth in the Bonds or in any other document related to the Bonds, the City has not
obligated itself to pay or remit any funds or revenues, other than the Trust Estate
described in the Indenture.
11. Payment of Costs. All costs incurred by the City in connection with the
issuance, sale and delivery of the Bonds and the execution and delivery of the
documents referred to above or any other agreement or instrument relative to the
Bonds, whether or not actually issued or delivered, such as costs of publication of
legal notices, have been agreed by the Owner to be paid by the Owner or reimbursed
by the Owner to the City.
12. Authorized Officers. The Bonds, the Bond Documents and any other
documents referred to herein are authorized to be executed on behalf of the City by its
Mayor, the City Clerk, the Finance Director and the City Administrator; provided that
in the event any of the officers of the City authorized to execute documents on behalf
of the City under this Final Resolution shall have resigned or shall for any reason be
unable to do so, the deputy or acting Mayor, City Clerk, Finance Director or City
Administrator, is hereby directed and authorized to do so on behalf of the City, with
the same effect as if executed by any officer specifically authorized to do so in the
Indenture or this Final Resolution.
13. Appointment of Trustee. The Trustee is hereby appointed as Trustee,
Paying Agent and Bond Registrar for the Bonds.
14. Qualified Tax-Exempt Obligations. The City hereby designates the
Bonds as "qualified tax-exempt obligations" within the meaning of Section 265(b)(3)
of the Code. In that connection, the Issuer makes the following factual statements and
representations:
(a) the reasonably anticipated amount of tax-exempt obligations
(other than any private activity bonds other than qualified 501(c)(3)bonds)
which will be issued by the City (and all subordinate entities of the Issuer)
during calendar year 2001 will not exceed $10,000,000; and
(b) not more than $10,000,000 of obligations issued by the City
during calendar year 2001 have been designated for purposes of Section 265(b)
(3) of the Code.
15. Effective Date. Be It Further Resolved that this Final Resolution shall
be in full force and effect immediately from and after its passage.
The motion for the adoption of the foregoing resolution was seconded by
Council member , and upon a vote being taken thereon
the following voted in favor thereof:
and the following voted against the same:
Dated:
ATTEST:
Mayor City Administrator
MI 806796 01