HomeMy WebLinkAbout2023 07-10 EDAPE conomic Development
Authority
City Hall Council Chambers
J uly 10, 2023
AGE NDA
1.Call to Order
The City Council requests that attendees turn off cell phones and pagers during the meeting. A
copy of the full C ity Counc il packet, including E D A (E conomic Development Authority ), is
available to the public. The packet ring binder is located at the entrance of the council
chambers.
2.Roll Call
3.Approval of Agenda and Consent Agenda
The following items are considered to be routine by the Economic Development Authority (E D A)
and will been acted by one motion. There will be no separate disc ussion of these items unless a
Commissioner so requests, in whic h event the item will be removed from the c onsent agenda
and considered at the end of Commission Consideration I tems.
4.Commission Consideration Items
a.Approval of a T I F A ssistance A greement B etween the E D A and Wangstad
Commons L L L P
- Motion to approve a resolution authorizing a TIF Assistance Agreement
and Related Documents.
5.Adjournment
Economic Development Authority
DAT E:7/10/2023
TO :C ity C ouncil
F R O M:D r. Reggie Edwards, City Manager
T H R O U G H :J esse A nders on, C ommunity D evelopment D irector
BY:J ason A arsvold, E DA P roject M anagement - Ehlers
S U B J E C T:A pproval of a T I F A s s is tance A greement Betw een the E DA and Wangstad Commons L L L P
Requested Council A con:
- Moon to approve a resoluon authorizing a T I F A ssistance A greement and Related D ocuments.
B ackground:
S ince 2019, The E DA has been w orking with J O Companies to develop four E DA -ow ned parcels at 61s t
Avenue N and Brooklyn Boulevard. The propos ed project includes a 54-unit low -income hous ing tax credit
(L I H TC) rental project. I n J une of 2022, the E DA entered into an op?on agreement w ith the developer to
s ell the E DA -ow ned land and approved a res olu?on of support to provide Tax I ncrement F inancing (T I F ) for
the project.
O n May 8, 2023, the City Council and E DA approved crea?on of a new T I F district and held a public hearing
regarding the sale of land ow ned by the E DA for the project. At the ?me, it was noted the one more s tep in
the process was neces s ary to formally grant T I F as s is tance for the project. That las t s tep is approval of a
T I F A ssistance A greement betw een the E DA and Wangstad Commons L L L P (J O Companies ).
Through analysis, nego?a?ons and dis cus s ions w ith City Council, E DA and staff, the ini?ally agreed upon
pay-as-you-go (PAYG O ) T I F as s is tance for the project was $482,000 (present value). This w as an es?mated
17 years of total as s is tance. A Cer this PAYG O amount w as set, however, the legislature low ered the
affordable housing property tax clas s rate from 0.75% on the 1st $100,000 of per-unit value and 0.25% per-
unit value above $100,000 split, to a flat 0.25% on the overall per-unit market value for affordable hous ing
projects.
This change reduces the projected property taxes for the project and reduces the amount of T I F that can be
generated. Based on the revis ed property tax class rate, Ehlers recalculated the PAYG O note amount by
assuming the project s?ll receives 17 years of T I F assistance. This calcula?on results in a revised PAYG O
T I F note amount for $248,000 for the project. This is the amount included in the final T I F A ssistance
A greement.
I n addi?on, the land w ill be transferred to Wangs tad C ommons for $1. Both contribu?ons are neces s ary
for the project ’s financial feas ibility as further outlined in the aHached memorandum from Ehlers .
The purpos e of this ac?on is to approve the final T I F A s s is tance A greement between the E DA and
Wangstad Commons L L L P. A summary of the T I F agreement as w ell as the full agreement text are included
as aHachments.
N ext S teps:
A pproval of the T I F agreement w ill complete E DA ac?ons necessary to provide T I F assistance for this
project. S taff and Ehlers will follow up with the adminis tra?ve steps neces s ary and finalize remaining
details . O nce these s teps are complete, the project w ill proceed to a clos ing with construc?on an?cipated to
begin in 2023. The receipt of firs t tax increment in expected in 2025.
B udget I ssues:
This item w ill have no immediate effect on the budget.
I nclusive C ommunity Engagement:
A nracist/Equity Policy Effect:
S trategic Priories and Values:
Resident Economic S tability, Targeted Redevelopment, Customer I n?macy, O pera?onal Excellence
AT TA C H M E N TS :
D escrip?on U pload D ate Type
M emo 7/6/2023 Backup M aterial
Res olu?on 7/3/2023 Resolu?on LeHer
T I F A s s is tance A greement S ummary 7/3/2023 Backup M aterial
T I F A greement 7/5/2023 Exhibit
SOURCES
Amount Pct.Per Unit
First Mortgage 3,174,000 13.9%58,778
TIF Mortgage (PAYGO)482,000 2.1%8,926
Low Income Housing Tax Credits 17,464,526 76.5%323,417
HOME 550,000 2.4%10,185
Hennepin County ARPA 569,463 2.5%10,546
45L Credits 118,800 0.5%2,200
GP Capital Contribution 50,000 0.2%926
GP Equity 100 0.0%2
Energy Rebate 15,000 0.1%278
Deferred Developer Fee (16% of Total Fee)394,305 1.7%7,302
TOTAL SOURCES 22,818,194 100%422,559
USES
Amount Pct.Per Unit
Acquisition Costs 1 0.0%0
Construction Costs 17,416,220 76.3%322,523
Professional Services 1,114,750 4.9%20,644
Financing Costs 1,436,224 6.3%26,597
Developer Fee 2,470,000 10.8%45,741
Cash Accounts/Escrows/Reserves 380,999 1.7%7,056
TOTAL USES 22,818,194 100%422,559
1 2 3 4 5 6 7 8
30%24,660 28,170 31,680 35,190 38,010 40,830 43,650 46,740
50%41,100 46,950 52,800 58,650 63,350 68,050 72,750 77,450
60%49,320 56,340 63,360 70,380 76,020 81,660 87,300 92,940
Studio 1 2 3 4 5 6
30%616 660 792 915 1,020 1,126 1,231
50%1,027 1,100 1,320 1,525 1,701 1,877 2,052
60%1,233 1,320 1,584 1,830 2,041 2,253 2,463
BR291\422\886228.v1
THE BROOKLYN CENTER ECONOMIC DEVELOPMENT AUTHORITY
OF THE CITY OF BROOKLYN CENTER
RESOLUTION #2023-
RESOLUTION AUTHORIZING THE EXECUTION OF A TIF ASSISTANCE AGREEMENT AND
RELATED DOCUMENTS
WHEREAS, the City of Brooklyn Center, Minnesota (the “City”) and the Brooklyn Center
Economic Development Authority, a public body corporate and politic (the “EDA”), have
undertaken a program to promote economic development and job opportunities, promote the
development and redevelopment of land which is underutilized within the City and have created
a redevelopment project known as Housing Development and Redevelopment Project No. 1 (the
“Redevelopment Project”) in the City, pursuant to Minnesota Statutes, Sections 469.001 to
469.047 and Sections 469.090 to 469.1081, all inclusive, as amended (the “Redevelopment
Project Act”), administered by the EDA; and
WHEREAS, the City and the EDA have heretofore established Tax Increment Financing
District No. 10: Wangstad Commons, a housing tax increment financing district (the “TIF District”),
within the Redevelopment Project, and approved a tax increment financing plan therefor (the “TIF
Plan”), all pursuant to and in conformity with applicable law, including Minnesota Statutes,
Sections 469.174 through 469.1794, as amended (the “TIF Act” and, together with the
Redevelopment Project Act, the “Act”), and the Redevelopment Project Act; and
WHEREAS, the EDA has acquired certain property which is located within the TIF District
(the “Development Property”); and
WHEREAS, Wangstad Commons LLLP, a Minnesota limited liability limited partnership
(the “Developer”), proposes the acquisition of the Development Property and construction and
equipping thereon of an approximately 54-unit affordable multifamily rental housing facility with a
combination of surface level and underground parking spaces, and all related amenities and
improvements (collectively, the “Project”); and
WHEREAS, in order to make the Project feasible on the Development Property, the
Developer has requested that the EDA use tax increment financing to assist the Developer with
certain costs related to the Project under the terms and conditions described in that certain TIF
Assistance Agreement, between the EDA and the Developer (the “TIF Agreement”), which has been
presented to the EDA for consideration; and
WHEREAS, on May 8, 2023, the EDA held a public hearing on the sale of the
Development Property to the Developer, at which all interested persons were given an opportunity
to be heard, and the EDA subsequently authorized the sale of the Development Property to the
Developer subject to the satisfaction of the conditions set forth in that certain Option Agreement
dated June 27, 2022, between the EDA and the Developer, as amended, including without
limitation execution of the TIF Agreement; and
WHEREAS, in connection with its financing for the Project, the Developer has presented to
the Board a Collateral Assignment of Interest in Tax Increment Revenue Note (the “Collateral
Assignment”), by and between the Developer and Greater Minnesota Housing Fund, a Minnesota
nonprofit corporation, and the Developer has requested that the EDA execute a Consent to the
Collateral Assignment (the “Consent”).
2
BR291\422\886228.v1
NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners (the “Board”) of
the Brooklyn Center Economic Development Authority (the “EDA”), as follows:
1. The Board hereby approves the TIF Agreement in substantially the form on file
with the Executive Director, together with any related documents necessary in connection
therewith, including without limitation the Consent and all documents, exhibits, certifications, or
consents referenced in or attached to the TIF Agreement including without limitation the TIF Note,
the Declaration of Restrictive Covenants, the Minimum Assessment Agreement and the Deed (all
as defined in the TIF Agreement) (collectively, the “Development Documents”), and hereby
authorizes the President of the EDA (the “President”) and Executive Director, in their discretion
and at such time, if any, as they may deem appropriate, to execute the same on behalf of the
EDA, and to carry out, on behalf of the EDA, the EDA’s obligations thereunder when all conditions
precedent thereto have been satisfied.
2. The approval hereby given to the Development Documents includes approval of
such additional details therein as may be necessary and appropriate and such modifications
thereof, deletions therefrom and additions thereto as may be necessary and appropriate and
approved by legal counsel to the EDA and by the officers authorized herein to execute said
documents prior to their execution; and said officers are hereby authorized to approve said
changes on behalf of the EDA. The execution of any instrument by the appropriate officers of the
EDA herein authorized shall be conclusive evidence of the approval of such document in
accordance with the terms hereof. This resolution shall not constitute an offer and the
Development Documents shall not be effective until the date of execution thereof as provided
therein.
3. In the event of absence or disability of the officers, any of the documents
authorized by this resolution to be executed may be executed without further act or authorization
of the Board by any duly designated acting official, or by such other officer or officers of the Board
as, in the opinion of the City Attorney, may act in their behalf. Upon execution and delivery of the
Development Documents, the officers and employees of the Board are hereby authorized and
directed to take or cause to be taken such actions as may be necessary on behalf of the Board
to implement the Development Documents, including without limitation the issuance of tax
increment revenue obligations thereunder when all conditions precedent thereto have been
satisfied and reserving funds for the payment thereof in the applicable tax increment accounts.
4. The Board hereby determines that the execution and performance of the
Development Documents will help realize the public purposes of the Act.
3
BR291\422\886228.v1
The foregoing resolution was introduced by EDA Commissioner _____________ and duly
seconded by EDA Commissioner ____________. The following commissioners voted in favor of
the resolution: _____________________________________. The following voted against:
____________________________. The following were absent: _______________________.
Whereupon the resolution was adopted.
ADOPTED: July 10, 2023
President Executive Director
Brooklyn Center EDA
Summary of TIF Assistance Agreement between the Economic Development Authority of
Brooklyn Center and JO Companies, LLC (TIF District No. 10)
1. Developer: JO Companies, LLC
2. Development Property: The property located in the City of Brooklyn Center, Hennepin
County, Minnesota with the following Parcel Identification Numbers:
34-119-21-43-0049
34-119-21-43-0050
34-119-21-43-0051
34-119-21-43-0052
3. Developer Conditions:
a. Acquisition of EDA property (the “Development Property)
b. Execution of TIF Assistance Agreement
c. Construct project in accordance with all laws
d. Obtain all necessary permits, licenses and approvals
e. The Project would not be undertaken without the assistance and benefit to the
Developer provided for in the Agreement.
4. City Conditions:
a. Establishment of new Housing TIF District
b. City will apply Tax Increments from the District to reimburse the Developer for
eligible costs
c. Execution of (TIF) Development Agreement
5. The Project: Acquisition of the Development Property and construction and equipping
thereon of an approximately 54-unit affordable multifamily rental housing facility with a
combination of surface level and underground parking spaces, and all related amenities
and improvements, to be constructed, owned and operated by the Developer;
6. Construction Schedule: Construction shall begin within 30 days of closing and be
substantially complete by December 31, 2025, subject to unavoidable delays.
7. Public Assistance: The City shall reimburse the Developer up $248,000 for Public
Development Costs. Public Development Costs are identified in Exhibit C of the
Agreement and include:
• Land acquisition
• Site grading and improvements
• Surface and underground parking
• Underground and above ground utilities
• All rental housing construction costs eligible for reimbursement under the TIF Act
Payments will be made from 90% of increment received from TIF district #10 and provided
on a pay-as-you-go basis over the nine-year term of the district with interest at a rate of
6% per annum.
8. Housing Income Requirements:
• 16 units available to those with incomes at or below 30% area median income
(AMI), including 30% AMI rent limits.
• 11 units available to those with incomes at or below 50% (AMI), including 30%
AMI rent limits.
• 1 unit available to those with incomes at or below 50% (AMI), including 50% AMI
rent limits.
• 15 units available to those with incomes at or below 60% (AM I), including 50%
AMI rent limits.
• 11 units available to those with incomes at or below 60% (AMI), including 60%
AMI rent limits.
The developer agrees to provide reports verifying income and rent compliance.
9. Look Back Provision: The EDA and Developer agree that the Developer’s representations
of the Total Development Costs will be reviewed at the time of completion of construction
of the Project. If the actual Total Development Costs at completion decrease by more
than $100,000, the TIF note will be reduced by 50% of the amount of the decrease in the
Total Development Costs which exceeds $100,000.
10. Miscellaneous:
a. No Assignment of Agreement or Note without City consent.
b. Developer covenants to pay property taxes.
c. The Developer shall reimburse the City for its actual out of pocket Legal and
Administrative Expenses.
TIF ASSISTANCE AGREEMENT
BETWEEN
ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER, MINNESOTA
AND
WANGSTAD COMMONS LLLP
This document drafted by:
KENNEDY & GRAVEN, CHARTERED (JSB)
150 South Fifth Street, Suite 700
Minneapolis, Minnesota 55402
(P) 612-337-9300
(F) 612-337-9310
BR291-422-864836.v67
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 3
Section 1.1.Definitions 3
ARTICLE II REPRESENTATIONS AND WARRANTIES 7
Section 2.1.Representations and Warranties of the EDA 7
Section 2.2.Representations and Warranties of the Developer 7
ARTICLE III UNDERTAKINGS BY DEVELOPER AND EDA 9
Section 3.1.Total Development Costs and Public Costs.9
Section 3.2.TIF Note.9
Section 3.3.Income and Rent Restrictions 11
Section 3.4.Developer to Pay EDA Fees and Expenses.13
Section 3.5.Execution of Assessment Agreement.13
Section 3.6.Compliance with Environmental Requirements.14
Section 3.7.Construction Plans.14
Section 3.8.Commencement and Completion of Construction.15
Section 3.9.Certificate of Completion 16
Section 3.10.Additional Responsibilities of the Developer.17
Section 3.11.Encumbrance of the Development Property 17
Section 3.12.Business Subsidy Act.18
Section 3.13.Right to Collect Delinquent Taxes.18
Section 3.14.Review of Taxes.18
ARTICLE IV ACQUISITION AND CONVEYANCE OF DEVELOPMENT PROPERTY 20
Section 4.1.Purchase Agreement 20
Section 4.2.Purchase and Sale of Development Property 20
Section 4.3.Conveyance Subject to Right of Re-entry.21
Section 4.4.As Is Conveyance 21
ARTICLE V EVENTS OF DEFAULT 22
Section 5.1.Events of Default Defined 22
Section 5.2.Remedies on Default 22
Section 5.3.No Remedy Exclusive.23
Section 5.4.No Implied Waiver.23
Section 5.5.Indemnification of EDA and City.23
Section 5.6.Reimbursement of Attorneys’ Fees.24
ARTICLE VI ADDITIONAL PROVISIONS 25
Section 6.1.Restrictions on Use.25
Section 6.2.Reports.25
Section 6.3.Limitations on Transfer and Assignment.25
Section 6.4.Conflicts of Interest 26
Section 6.5.Titles of Articles and Sections.26
Section 6.6.Notices and Demands 26
Section 6.7.No Additional Waiver Implied by One Waiver.27
i
BR291-422-864836.v67
Section 6.8.Counterparts.27
Section 6.9.Law Governing.27
Section 6.10.Term; Termination.27
Section 6.11.Provisions Surviving Rescission, Expiration or Termination.27
Section 6.12.Superseding Effect.27
Section 6.13.Relationship of Parties.27
Section 6.14.Venue.28
Section 6.15.Merger; Amendment.28
Section 6.16.Interpretation; Concurrence.28
EXHIBIT A DESCRIPTION OF TIF DISTRICT…………………………………………….A-1
EXHIBIT B LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY B-1
EXHIBIT C PUBLIC DEVELOPMENT COSTS C-1
EXHIBIT D FORM OF TAXABLE TIF NOTE D-1
EXHIBIT E DECLARATION OF RESTRICTIVE COVENANTS E-1
EXHIBIT F PERMITTED ENCUMBRANCES F-1
EXHIBIT G CERTIFICATE OF COMPLETION OF PROJECT G-1
EXHIBIT H PROJECT SOURCES AND USES H-1
EXHIBIT I DEED I-1
EXHIBIT J FORM OF MINIMUM ASSESSMENT AGREEMENT J-1
ii
BR291-422-864836.v67
TIF ASSISTANCE AGREEMENT
THIS AGREEMENT, made as of the ___ day of ______, 2023, by and between the
ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER, MINNESOTA (the
“EDA”), a public body corporate and politic under the laws of the State of Minnesota, and
WANGSTAD COMMONS LLLP, a Minnesota limited liability limited partnership (the
“Developer”).
WITNESSETH:
WHEREAS, the EDA was created pursuant to Minnesota Statutes, Sections 469.090 to
469.1081, as amended (the “EDA Act”) and was authorized to transact business and exercise its
powers by a resolution (the “Enabling Resolution”) of the City Council of the City of Brooklyn
Center, Minnesota (the “City”); and
WHEREAS, under the EDA Act and the Enabling Resolution, the EDA has all the
powers of a housing and redevelopment authority under Minnesota Statutes, Sections 469.001 to
469.047, as amended (the “HRA Act”); and
WHEREAS, pursuant to the EDA Act and the HRA Act (collectively, the “Development
Act”), the EDA has undertaken a program to promote the development and redevelopment of
land which is underutilized or characterized by blight within the City, and in connection
therewith created the Housing and Redevelopment Project No. 1 (the “Project Area”) and adopted
a Redevelopment Plan (the “Redevelopment Plan”) for the Project Area; and
WHEREAS, pursuant to the provisions of Minnesota Statutes, Section 469.174 through
469.1794, as amended, (the “TIF Act”), the City and the EDA have established, within the Project
Area, Tax Increment Financing District No. 10: Wangstad Commons, qualified as a housing tax
increment financing district (the “TIF District”), the legal description of which is attached hereto
as Exhibit A, and has adopted a tax increment financing plan therefor approved by the City
Council of the City and the Board of the EDA on May 8, 2023 (the “TIF Plan”) which provides
for the use of tax increment financing in connection with certain development within the Project
Area and TIF District; and
WHEREAS, the EDA is authorized to acquire and convey property in order to, among other
things, facilitate the development of affordable housing, all pursuant to the Development Act; and
WHEREAS, the EDA has acquired certain property described in Exhibit B hereto and
referred to as the “Development Property,” which is located within the TIF District; and
WHEREAS, the Developer proposes the acquisition of the Development Property and
construction and equipping thereon of an approximately 54-unit affordable multifamily rental
housing facility with a combination of surface level and underground parking spaces, and all
related amenities and improvements (collectively, the “Project”); and
1
BR291-422-864836.v67
WHEREAS, in order to make the development of affordable housing feasible on the
Development Property, the Developer has requested that the EDA use tax increment financing to
assist the Developer with certain costs related to the Project in order to fill the gap between the
Total Development Costs (as hereinafter defined) and the funds available to pay such costs and
provide financing for a portion of the purchase price of the Development Property to the Developer
under the terms described in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual obligations of the
parties hereto, each of them does hereby covenant and agree with the other as follows:
2
BR291-422-864836.v67
ARTICLE I
DEFINITIONS
Definitions.All capitalized terms used and not otherwise defined hereinSection 1.1.
shall have the following meanings unless a different meaning clearly appears from the context:
Administrative Costs has the meaning set forth in Section 3.4 hereof;
Agreement means this TIF Assistance Agreement, as the same may be from time to time
modified, amended or supplemented;
Architect means Pope Associates, Inc., a Minnesota corporation doing business as Pope
Design Group, as the architect for the Project;
Assessment Agreement means the minimum assessment agreement, between the
Developer and the EDA, in substantially the form of the agreement attached as Exhibit J hereto
and made part of this Agreement;
Business Day means any day except a Saturday, Sunday or a legal holiday or a day on
which banking institutions in the City are authorized by law or executive order to close;
Certificate of Completion means a Certificate of Completion with respect to the Project
executed by the EDA pursuant to Section 3.10 hereof, in substantially the form set forth in
Exhibit G attached hereto;
City means the City of Brooklyn Center, Minnesota;
Closing Date or Closing means not later than December 31, 2023 or such other date as
agreed to by the EDA and the Developer in writing;
Code means the Internal Revenue Code of 1986, as amended;
Completion Date means the date on which the Certificate of Completion with respect to
the Project is executed by the EDA pursuant to Section 3.9 hereof;
Construction Costs means the capital costs of the construction of the Project, including
the costs of labor and materials; construction management and supervision expenses; insurance
and payment or performance bond premiums; architectural and engineering fees and expenses;
property taxes; usual and customary fees or costs payable to the City or any other public body
with regulatory authority over construction of the Project (e.g. building permits and inspection
fees); the developer fee; and all other costs chargeable to the capital account of the Project under
generally accepted accounting principles;
Construction Documents means the following documents, all of which shall be in form
and substance acceptable to the EDA: (a) evidence satisfactory to the EDA showing that the
Project conforms to applicable zoning, subdivision and building code laws and ordinances,
3
BR291-422-864836.v67
including a copy of the building permit for the Project; (b) a copy of the executed standard form
of agreement between owner and architect for architectural services for the Project, if any, and
(c) a copy of the executed General Contractor’s contract for the Project, if any;
Construction Lender means U.S. Bank National Association, a national banking
association, and its successors and assigns;
Construction Loan Agreement means the Construction Loan Agreement, dated
___________ ___, 2023, among the Construction Lender and the Developer;
Construction Plans means the plans, specifications, drawings and related documents for
the construction of the Project, which shall be as detailed as the plans, specifications, drawings
and related documents which are submitted to the building inspector of the City;
County means Hennepin County, Minnesota;
Declaration means the Declaration of Restrictive Covenants in substantially the form
attached hereto as Exhibit E;
Deed means the Quit Claim Deed in the form attached hereto as Exhibit I, to be executed
by the EDA conveying the Development Property to the Developer for the development of the
Project;
Design Drawings means the floor plans, renderings, elevations and material specifications
for the Project prepared by the Architect;
Developer means Wangstad Commons LLLP, a Minnesota limited liability limited
partnership, and its authorized successors and assigns;
Development Property means the real property legally described in Exhibit B attached
hereto;
EDA means the Economic Development Authority of Brooklyn Center, Minnesota;
Event of Default means any of the events described in Section 5.1 hereof;
Final Payment Date means the earliest of (i) the date on which the entire principal and
accrued interest on the TIF Note have been paid in full; or (ii) February 1, 2042; or (iii) any
earlier date this Agreement or the TIF Note is terminated or cancelled in accordance with the
terms hereof or deemed paid in full; or (iv) the February 1 following the date the TIF District is
terminated in accordance with the TIF Act; or (v) the date the EDA cancels the TIF Note
following (a) a written request for termination from the Developer and (b) a determination in the
EDA’s sole discretion that such termination will not limit or interfere with the EDA’s ability to
continue to collect Tax Increments for pooling for affordable housing in accordance with the TIF
Act (provided that there shall be no payment of any Tax Increments on such date unless it is a
regular Payment Date);
4
BR291-422-864836.v67
General Contractor means Doran Construction Company, LLC, a Minnesota limited
liability company, as the general contractor for the Project;
Housing Support means the housing support funds from the County for the sixteen (16)
units in the Project that shall be occupied or available for occupancy by persons or families
whose income does not exceed 30% of the Median Income;
HUD means the United States Department of Housing and Urban Development;
JO Companies means JO Companies, LLC, a Minnesota limited liability company.
Payment Date means August 1, 2025 and each February 1 and August 1 thereafter to and
including the Final Payment Date; provided, that if any such Payment Date should not be a
Business Day, the Payment Date shall be the next succeeding Business Day;
Permanent Lender means Greater Minnesota Housing Fund, and its successors and
assigns;
Permanent Lender Collateral Assignment means during the term of the Permanent Loan,
a Collateral Assignment of Tax Increment Financing Note and Available Tax Increment given by
the Developer in favor of the Permanent Lender and consented to by the EDA, together with any
amendments thereto;
Permitted Encumbrances means those encumbrances set forth in Exhibit F attached
hereto;
Pledged Tax Increments means for any 6-month period, 90% of the Tax Increments
received by the EDA since the previous Payment Date;
Project means the acquisition of the Development Property and construction and
equipping thereon of an approximately 54-unit affordable multifamily rental housing facility with
a combination of surface level and underground parking spaces, and all related amenities and
improvements, to be constructed, owned and operated by the Developer;
Public Development Costs means the Public Development Costs of the Project identified
on Exhibit C attached hereto and any other cost incurred by the Developer, or its assigns, that
the EDA determines is eligible for reimbursement with Pledged Tax Increments;
Purchase Agreement means the Option Agreement, dated June 27, 2022, as amended by
this Agreement, between the EDA and JO Companies, and assigned to the Developer pursuant to
that certain Assignment and Assumption of Option Agreement, dated March 8, 2023 between JO
Companies and the Developer, an entity in which JO Companies has an ownership interest, is a
member or is otherwise affiliated with, regarding the acquisition of the Development Property;
Purchase Price means $1.00 for the acquisition of the Development Property in
accordance with the Purchase Agreement and as further provided herein;
5
BR291-422-864836.v67
Reimbursement Amount means the lesser of (i) [$248,000] or (ii) the Public
Development Costs actually incurred and paid by the Developer, or (iii) the amount determined
pursuant to Section 3.3(11);
Site Plan means the site plan prepared for the Development Property approved by the
City;
State means the State of Minnesota;
Sworn Construction Cost Statement has the meaning set forth in Section 3.6(1) hereof;
Tax Credit Investor means U.S. Bancorp Community Development Corporation;
Tax Increments means the tax increments derived from the Development Property and the
improvements thereon which have been received and are permitted to be retained by the EDA in
accordance with the TIF Act including, without limitation, Minnesota Statutes, Sections 469.177;
469.176, Subd. 4h; and 469.175, Subd. 1a, as the same may be amended from time to time;
Termination Date means, except as otherwise defined in and with respect to the
Declaration and the Assessment Agreement, and unless this Agreement is terminated earlier in
accordance with its terms, the Final Payment Date;
TIF Act means Minnesota Statutes, Sections 469.174 through 469.1794, as amended;
TIF District means the Tax Increment Financing District No. 10: Wangstad Commons (a
housing district) consisting of the property legally described in Exhibit A attached hereto, which
was established as a housing district under the TIF Act;
TIF Note means the Taxable Tax Increment Revenue Note (Wangstad Commons) to be
executed by the EDA and delivered to the Developer pursuant to Article III hereof, a form of
which is attached hereto as Exhibit D;
TIF Plan means the tax increment financing plan approved for the TIF District;
Title Company means Guaranty Commercial Title, Inc., or any other title company
designated by the Developer;
Total Development Costs means all Construction Costs and any other costs of the
development of the Project to be incurred by the Developer as set forth in Exhibit H; and
Unavoidable Delays means delays, outside the control of the party claiming their
occurrence, which are the direct result of strikes, lockouts or other labor troubles, prolonged
adverse weather or acts of God, acts of war or terrorism, epidemics, pandemics, or similar
disease outbreaks, fire or other casualty to the Project, litigation commenced by third parties
which, by injunction or other similar judicial action or by the exercise of reasonable discretion,
directly results in delays, acts of any federal, state or local governmental unit (other than the City
or the EDA in properly exercising its rights under this Agreement) which directly result in delays,
war, invasion, rebellion, revolution, insurrection, riots or civil war, or unavailability or shortage
6
BR291-422-864836.v67
of supply of construction materials or construction labor, other than by reason of non-payment of
costs of the same, or discovery of unknown hazardous materials, other concealed site condition
or delays of contractors due to such discovery.
7
BR291-422-864836.v67
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Representations and Warranties of the EDA. The EDA makes theSection 2.1.
following representations and warranties:
The EDA is a public body corporate and politic organized and existing under the(1)
Constitution and laws of the State and politic and has the power to enter into this Agreement and
carry out its obligations hereunder.
The EDA has taken the actions necessary to establish the TIF District as a(2)
“housing district” within the meaning of Section 469.174, Subdivision 11 of the TIF Act.
The development contemplated by this Agreement is in conformance with the(3)
development objectives set forth in the Redevelopment Plan and the TIF Plan.
The EDA makes no representation or warranty, either express or implied, as to the(4)
Development Property or its condition, or that the Development Property shall be suitable for the
Developer’s purposes or needs.
Representations and Warranties of the Developer.The Developer makesSection 2.2.
the following representations and warranties:
The Developer is a Minnesota limited liability limited partnership duly and validly(1)
organized and existing in good standing under the laws of the State and has power and authority
to enter into this Agreement and to perform its obligations hereunder and is not in violation of
any provision of the laws of the State.
The construction of the Project would not be undertaken by the Developer, and in(2)
the opinion of the Developer would not be economically feasible within the reasonably
foreseeable future, without the assistance and benefit to the Developer provided for in this
Agreement.
Neither the execution and delivery of this Agreement, the consummation of the(3)
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of,
the terms, conditions or provision of any contractual restriction, evidence of indebtedness,
agreement or instrument of whatever nature to which the Developer is now a party or by which it
is bound, or constitutes a default under any of the foregoing.
The Developer understands that the EDA or the City may subsidize or encourage(4)
the development of other developments in the City, including properties that compete with the
Development Property and the Project, and that such subsidies may be more favorable than the
terms of this Agreement, and that the EDA and the City have informed the Developer that
8
BR291-422-864836.v67
development of the Development Property will not be favored over the development of other
properties.
To the Developer’s knowledge, no member of the City Council of the City, the(5)
Board of Commissioners of the EDA, or other officer of the City or the EDA has either a direct
or indirect financial interest in this Agreement, nor will any member of City Council, the Board
of Commissioners, or other officer of the City or the EDA, benefit financially from this
Agreement within the meaning of Minnesota Statutes, Sections 412.311 and 471.87.
9
BR291-422-864836.v67
ARTICLE III
UNDERTAKINGS BY DEVELOPER AND EDA
Total Development Costs and Public Costs.Section 3.1.
The Developer’s estimate of the Total Development Costs of the Project and(1)
sources of revenue to pay such costs are set forth in Exhibit H attached hereto.
Based on the Developer’s representation that the Total Development Costs for the(2)
Project are approximately $22,818,194 that the sources of revenue available to pay such costs,
excluding the tax increment assistance contemplated herein, are $22,336,194, and that the
Developer is unable to obtain additional private financing for the estimated Total Development
Costs, the EDA has agreed to provide tax increment financing subject to the terms and conditions
as hereinafter set forth. The Developer must provide the EDA copies of all executed financing
documents related to financing the Total Development Costs of the Project.
The parties agree that the Public Development Costs to be incurred by the(3)
Developer are essential to the successful completion of the Project. The Developer anticipates
that the Public Development Costs for the Project which are identified in Exhibit C attached
hereto will be at least $248,000.
As of January 2, 2024, the estimated market value of the Development Property,(4)
as improved, is expected to be at least $2,632,500. As of January 2, 2025, the estimated market
value of the Development Property, as improved, is expected to be at least $7,897,500. As of
January 2, 2026, the estimated market value of the Development Property, as improved, is
expected to be at least $10,530,000.
The Developer will acquire the Development Property from the EDA in(5)
accordance with the terms of the Purchase Agreement, and will cause the Project to be
constructed in accordance with the terms of this Agreement, the Redevelopment Plan, and all
local, state and federal laws and regulations including, but not limited to, environmental, zoning,
energy conservation, building code and public health laws and regulations.
The Developer shall, in a timely manner, comply with all requirements necessary(6)
to obtain, or cause to be obtained, all required permits, licenses and approvals, and will meet, in a
timely manner, all requirements of all applicable local, state, and federal laws and regulations
which must be obtained or met for the construction and operation of the Project.
The Total Development Costs shall be paid by the Developer, and the EDA shall(7)
reimburse the Developer for the Public Development Costs solely in the Reimbursement Amount
through the issuance of the TIF Note as provided herein.
TIF Note.Section 3.2.
The TIF Note will be originally issued to the Developer, as provided in Section(1)
3.2(2), in a principal amount equal to the Reimbursement Amount and shall be dated as of its
10
BR291-422-864836.v67
date of issuance. The principal of the TIF Note and interest thereon shall be payable on a
pay-as-you-go basis solely from the Pledged Tax Increments as provided below.
The TIF Note shall be issued, in substantially the form attached hereto as Exhibit(2)
D, and interest will commence to accrue on the TIF Note only when: (A) the Developer shall
have submitted paid invoices or other written proof and documentation as may be reasonably
satisfactory to the EDA of the exact nature and amount of the Public Development Costs incurred
by the Developer, together with such other information or documentation as may be reasonably
necessary and satisfactory to the EDA to enable the EDA to substantiate the Developer’s tax
increment expenditures for Public Development Costs in accordance with Exhibit C and/or to
comply with its tax increment reporting obligations to the Commissioner of Revenue, the Office
of the State Auditor or other applicable official; (B) the EDA shall have received evidence that
the Declaration and the Assessment Agreement have been recorded against the Development
Property; (C) the Developer shall have obtained from the City a certificate of occupancy for all
residential units in the Project and a Certificate of Completion as provided in this Agreement;
(D) the Developer shall have paid all of the EDA’s Administrative Costs required to have been
paid as of such date in accordance with Section 3.4 hereof; (E) the Developer is in material
compliance with each term or provision of this Agreement required to have been satisfied as of
such date; and (F) the Developer has submitted the final sources and uses for the Project in
accordance with Section 3.2(10) and the EDA shall have determined any adjustment to the
Reimbursement Amount pursuant to Section 3.2(10). The documentation provided in
accordance with Section 3.2(2)(A) shall include specific invoices for the particular work from the
contractor or other provider and shall include paid invoices, copies of remittances and/or other
suitable documentary proofs of the Developer’s payment thereof.
Subject to the provisions thereof, the TIF Note shall bear simple,(3)
non-compounding interest at the rate equal to the lesser of 6.00% per annum or the rate per
annum on the Developer’s permanent first lien mortgage financing for the construction of the
Project. Interest shall be computed on the basis of a 360-day year consisting of twelve 30-day
months. Principal and interest on the TIF Note will be payable on each Payment Date; however,
the sole source of funds required to be used for payment of the EDA’s obligations under this
Section and correspondingly under the TIF Note shall be the Pledged Tax Increments received in
the 6-month period preceding each Payment Date. On each Payment Date the Pledged Tax
Increments shall be credited against the accrued interest then due on the TIF Note and then
applied to reduce the principal. In the event the Pledged Tax Increments are not sufficient to pay
the accrued interest, the unpaid accrued interest shall be carried forward without interest. All
Tax Increments in excess of the Pledged Tax Increments necessary to pay the principal and
accrued interest on the TIF Note are not subject to this Agreement, and the EDA retains full
discretion as to any authorized application thereof. To the extent that the Pledged Tax
Increments are insufficient through the Final Payment Date, to pay all amounts otherwise due on
the TIF Note, said unpaid amounts shall then cease to be any debt or obligation of the City or the
EDA whatsoever. The Developer acknowledges that estimates of Tax Increment prepared by the
City or its municipal advisors in connection with the TIF District or this Agreement are for the
benefit of the City and are not intended as representations on which the Developer may rely.
No interest will accrue during any period in which payments have been suspended(4)
pursuant to Section 5.2.
11
BR291-422-864836.v67
Any interest accruing on Pledged Tax Increments held by the EDA pending(5)
payment to the Developer on the TIF Note shall accrue to the account of the TIF District.
The TIF Note shall be a special and limited obligation of the EDA and not a(6)
general obligation of the City or the EDA, and only Pledged Tax Increments shall be used to pay
the principal of and interest on the TIF Note.
The EDA’s obligation to make payments on the TIF Note on any Payment Date is(7)
subject to Section 3.14 and shall be conditioned upon the requirement that (A) there shall not at
that time be an Event of Default that has occurred and is continuing under this Agreement that
has not been cured during the applicable cure period, (B) this Agreement shall not have been
terminated pursuant to Section 5.2, and (C) all conditions set forth in Section 3.3(2) have been
satisfied as of such date.
The TIF Note shall be governed by and payable pursuant to the additional terms(8)
thereof, as actually executed, in substantially the form set forth in Exhibit D attached hereto. In
the event of any conflict between the terms of the TIF Note and the terms of this Section, the
terms of the TIF Note shall govern. The issuance of the TIF Note is pursuant and subject to the
terms of this Agreement.
In accordance with Section 469.1763, Subdivision 3 of the TIF Act, conditions for(9)
delivery of the TIF Note must be met within 5 years after the date of certification of the TIF
District by the County. If the conditions are not satisfied by such date, the EDA has no further
obligations under this Section.
The financial assistance to the Developer under this Agreement is based on certain(10)
assumptions regarding likely costs and expenses associated with constructing the Project as set
forth in Exhibit H attached hereto. The EDA and Developer agree that the Developer’s
representations of the Total Development Costs will be reviewed at the time of completion of
construction of the Project. Upon submitting the request for the Certificate of Completion under
Section 3.9, the Developer shall submit the final sources and uses for the Project in the form set
forth in Exhibit H based on actual Total Development Costs as incurred and documented. If the
actual Total Development Costs at completion decrease by more than $100,000 below the
amount shown in Exhibit H, the Reimbursement Amount will be reduced by 50% of the amount
of the decrease in the Total Development Costs which exceeds $100,000.
Income and Rent Restrictions. The Developer hereby represents,Section 3.3.
covenants and agrees as follows:
The Project is intended for occupancy by persons or families of low and moderate(1)
income, as defined in Chapter 462A, Title II of the National Housing Act of 1934, the National
Housing Act of 1959, the United States Housing Act of 1937, as amended, Title V of the
Housing Act of 1949, as amended, any other similar present or future federal, state or municipal
legislation, or the regulations promulgated under any of those acts; and
12
BR291-422-864836.v67
No more than 20% of the square footage of any building of the Project financed(2)
with the proceeds of the TIF Note will consist of commercial, retail or other non-residential uses;
and
In accordance with the Declaration, including without limitation, the Next(3)
Available Unit Rule as defined therein, commencing on the Completion Date and continuing
until the end of the Qualified Project Period (as defined in the Declaration), at least (i) 16 of the
residential units in the Project shall be occupied or available for occupancy by persons or
families whose income does not exceed 30% of the area-wide median family income for the
standard metropolitan statistical area which includes the City, as that figure is determined and
announced from time to time by HUD, as adjusted for family size (“Median Income”), and rents
(including utilities paid by tenant) for such units shall not exceed 30% of 30% of Median
Income, provided, however, that for said 16 units, if the Housing Support is reduced or
eliminated, such units may be occupied or available for occupancy by persons or families whose
income does not exceed 50% of the Median Income, and rents (including utilities paid by tenant)
for such units shall not exceed 30% of 50% of the Median Income; (ii) 11 of the residential units
in the Project shall be occupied or available for occupancy by persons or families whose income
does not exceed 50% of Median Income, and rents (including utilities paid by tenant) for such
units shall not exceed 30% of 30% of Median Income, provided, however, that for said 11 units,
if the Housing Support is reduced or eliminated, rents (including utilities paid by tenant) for such
units shall not exceed 30% of 50% of the Median Income; (iii) 1 of the resident units in the
Project shall be occupied or available for occupancy by persons or families whose income does
not exceed 50% of Median Income, and rents (including utilities paid by tenant) for such units
shall not exceed 30% of 50% of Median Income;and (iv)15 of the residential units in the Project
shall be occupied or available for occupancy by persons or families whose income does not
exceed 60% of Median Income, and rents (including utilities paid by tenant) for such units shall
not exceed 30% of 50% of Median Income; and (v) 1126 of the residential units in the Project
shall be occupied or available for occupancy by persons or families whose income does not
exceed 60% of Median Income, and rents (including utilities paid by tenant) for such units shall
not exceed 30% of 60% of Median Income. The rent levels for all such residential units will be
established at a level that is affordable under rental guidelines for that income; and
The Developer will provide the EDA an annual certification in the form attached(4)
as Exhibit C to the Declaration (the “Compliance Certificate”) evidencing compliance with the
requirements of paragraph (3) above, and, if requested by the EDA, the income verifications from
tenants used to meet such requirements. The annual certification shall also include the vacancy
rate for the preceding calendar year and the rents for all residential units broken down by unit
type, size and monthly rent. The annual certification shall be provided on or before July 1 of
each year commencing July 1, 2025, and shall cover the preceding calendar year; and
The Developer shall accept tenants who are recipients of federal certificates for(5)
rent subsidies pursuant to the existing program under Section 8 of the United States Housing Act
of 1937, as amended, codified as 42 U.S.C. Sections 1401 et seq., or its successor. During the
term of the Declaration, the Developer shall not adopt any policies specifically excluding rental
to tenants holding Section 8 certificate/voucher holders. For certificate/voucher holders, the
Developer shall restrict rents to an amount which does not exceed the rent permitted, assuming
the total tenant payment does not exceed 40% of the household’s monthly adjusted income; and
13
BR291-422-864836.v67
The Developer and its agents must adhere to Equal Opportunity, Affirmative(6)
Marketing, and Fair Housing practices in all marketing efforts, eligibility determinations and
other transactions. The Equal Housing Opportunity logo or statement (“We do business in
accordance with the Federal Fair Housing Law. It is illegal to discriminate against any person
because of race, color, religion, sex, handicap, familial status, or national origin.”) must be used
in all advertising of vacant units; and
The provisions of this Section shall be incorporated into the Declaration in(7)
substantially the form attached as Exhibit E, and recorded against the Development Property on
the Closing Date and shall be a condition to the issuance of the TIF Note.
Developer to Pay EDA Fees and Expenses. The Developer will pay allSection 3.4.
reasonable Administrative Costs (as defined below) of the EDA or the City and must pay such
costs to the EDA within 30 days after receipt of a written invoice from the EDA describing the
amount and nature of the costs to be reimbursed. For the purposes of this Agreement, the term
“Administrative Costs” means out of pocket costs incurred by the EDA or the City, including
without limitation legal, financial advisor, and other consultant costs of the EDA or the City, all
attributable to or incurred in connection with the establishment of the TIF District and adoption
of TIF Plan and the review, negotiation and preparation of this Agreement (together with any
other agreements entered into between the parties hereto contemporaneously therewith) and the
review and approvals of other documents and agreements in connection with the Project or in
connection with any amendments to any of the foregoing . In addition, certain engineering,
environmental advisor, legal, land use, zoning, subdivision and other costs related to the
development of the Development Property are required to be paid, or additional funds deposited
in escrow, as provided in accordance with the City’s planning, zoning, and building fee
schedules. The parties acknowledge that the Developer deposited $10,000 with the EDA toward
payment of the Administrative Costs. If such costs exceed such amount, then at any time, but not
more often than monthly, the EDA will deliver written notice to the Developer setting forth any
additional fees and expenses, together with suitable billings, receipts or other evidence of the
amount and nature of the fees and expenses, and the Developer agrees to pay all fees and
expenses within 30 days of the EDA’s written request. Any unused amount of such deposit shall
be returned to the Developer.
Execution of Assessment Agreement. The Developer and the EDA agreeSection 3.5.
to execute an Assessment Agreement relating to the Development pursuant to the provisions of
Minnesota Statutes, Section 469.177, Subdivision 8, specifying the minimum market value for
the Development Property for calculation of real property taxes. Specifically, the Developer
shall agree to a market value for the Development Property, as of January 2, 2024 for taxes
payable 2025, of not less than $2,632,500, as of January 2, 2025 for taxes payable in 2026, of not
less than $7,897,500, as of January 2, 2026 for taxes payable in 2027 and each year thereafter, of
not less than $10,530,000 (the “Minimum Market Value”).
Nothing in the Assessment Agreement or this Agreement limits the discretion of(1)
the County Assessor to assign a market value to the property in excess of the Minimum Market
Value nor prohibits the Developer from seeking, through the exercise of legal or administrative
remedies, a reduction in such market value for property tax purposes; provided however, the
14
BR291-422-864836.v67
Developer shall not seek a reduction of such market value below the Minimum Market Value for
any year so long as the Assessment Agreement remains in effect for that year.
The Assessment Agreement shall remain in effect until the earlier of (i) January(2)
31,20502040, with respect to taxes payable in 20512041, or (ii) the date on which the TIF
District expires or is otherwise terminated.
The Assessment Agreement shall be certified by the County Assessor as provided(3)
in Minnesota Statutes, Section 469.177, Subdivision 8, upon a finding by the County Assessor
that the Minimum Market Value represents a reasonable estimate based upon the plans and
specifications for the Project to be constructed on the Development Property and the market
value previously assigned to the Development Property.
Pursuant to Minnesota Statutes, Section 469.177, Subdivision 8, the Assessment(4)
Agreement shall be filed for record in the office of the county recorder or registrar of titles of the
County, and such filing shall constitute notice to any subsequent encumbrancer or purchaser of
the Development Property, whether voluntary or involuntary, and such Assessment Agreement
shall be binding and enforceable in its entirety against any such subsequent purchaser or
encumbrancer, including the holder of any mortgage on the Development Property
The Assessment Agreement shall be filed, at the sole cost of the Developer,(5)
against the Development Property on the Closing Date and prior to any lien or encumbrance on
the Development Property, including any mortgager, and recording the Assessment Agreement
shall be a condition to the issuance of the TIF Note.
Compliance with Environmental Requirements.Section 3.6.
The Developer shall comply with all applicable local, state, and federal(1)
environmental laws and regulations, and will obtain, and maintain compliance under, any and all
necessary environmental permits, licenses, approvals or reviews.
The City and the EDA make no warranties or representations regarding, nor do(2)
they indemnify the Developer with respect to, the existence or nonexistence on or in the vicinity
of the Development Property or anywhere within the TIF District of any toxic or hazardous
substances or wastes, pollutants or contaminants (including, without limitation, asbestos, urea
formaldehyde, the group of organic compounds known as polychlorinated biphenyls, petroleum
products including gasoline, fuel oil, crude oil and various constituents of such products, or any
hazardous substance as defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 961-9657, as ame nde d) (colle ctively, the
“Hazardous Substances”).
The Developer agrees to take all necessary action to remove or remediate any(3)
Hazardous Substances located on the Development Property to the extent required by and in
accordance with all applicable local, state and federal environmental laws and regulations.
15
BR291-422-864836.v67
Construction Plans.Section 3.7.
Prior to the commencement of construction of the Project, the Developer will(1)
deliver to the EDA the Construction Plans, Construction Documents and a sworn construction
cost statement certified by the Developer and the General Contractor (the “Sworn Construction
Cost Statement”) all in form and substance reasonably acceptable to the EDA. The Construction
Plans for the Project shall be consistent with the Redevelopment Plan, this Agreement, and all
applicable State and local laws and regulations and the Site Plan and Design Drawings previously
submitted to the EDA and shall provide for design, quality, materials and building finishes of the
finished Project to be substantially similar to those which were presented to the City in
connection with the Developer’s request for tax increment financing assistance. The City’s
building official and the Executive Director of the EDA, on behalf of the EDA shall promptly
review any Construction Plans upon submission and deliver to the Developer a written statement
approving the Construction Plans or a written statement rejecting the Construction Plans and
specifying the deficiencies in the Construction Plans. The City’s building official and the
Executive Director of the EDA on behalf of the EDA may withhold approval of the Construction
Plans if any of the following is not satisfied: (i) the Construction Plans substantially conform to
the terms and conditions of this Agreement; (ii) the Construction Plans are consistent with the
goals and objectives of the Redevelopment Plan and the TIF Plan; (iii) the Construction Plans
comply with the Site Plan and Design Drawings; (iv) the Construction Plans meet all
requirements necessary for the City to issue a building permit; and (v) the Construction Plans do
not violate any applicable federal, State or local laws, ordinances, rules or regulations. If the
Construction Plans are not approved by the City and the EDA, then the Developer shall make
such changes as the EDA may reasonably require and resubmit the revised Construction Plans to
the EDA for approval, which will not be unreasonably withheld, conditioned or delayed.
No changes shall be made to the Construction Plans for the Project without the(2)
EDA’s prior written approval, unless the aggregate of such changes does not increase or decrease
the Total Development Costs by more than 10%. No changes which materially alter (a) the
Project’s site plan, (b) exterior appearance, (c) construction quality, or (d) exterior materials
included in the final Design Drawings and Construction Plans shall be made without the EDA’s
prior written consent. The approval of the EDA will not be unreasonably withheld, conditioned
or delayed.
The approval of the Construction Plans, or any proposed amendment to the(3)
Construction Plans, by the EDA does not constitute a representation or warranty by the EDA that
the Construction Plans or the Project comply with any applicable building code, health or safety
regulation, zoning regulation, environmental law or other law or regulation, or that the Project
will meet the qualifications for issuance of a certificate of occupancy, or that the Project will
meet the requirements of the Developer or any other users of the Project. Approval of the
Construction Plans, or any proposed amendment to the Construction Plans, by the EDA will not
constitute a waiver of an Event of Default or of any State or City building or other code
requirements that may apply. Nothing in this Agreement shall be construed to relieve the
Developer of its obligations to receive any required approval of the Construction Plans from any
City department and does not relieve the Developer of the obligation to comply with applicable
federal, State and local laws, ordinances, rules and regulations, or to construct the Project in
accordance therewith.
16
BR291-422-864836.v67
Commencement and Completion of Construction. Subject to the termsSection 3.8.
and conditions of this Agreement and to Unavoidable Delays, the Developer will commence
construction of the Project within thirty (30) days of the Closing Date on the Property and shall
substantially complete the Project by December 31, 2025. Notwithstanding the foregoing, failure
of the Developer to commence construction or substantially complete the Project shall not be an
Event of Default hereunder unless the Developer fails to commence construction of the Project
within thirty (30) days of the closing on the Property or the Developer fails to obtain a certificate
of occupancy for the Project by July 31, 2026.“Commence” shall mean the beginning of physical
improvements to the Property, including grading, excavation or other physical site preparation
work (in accordance with a permit issued by the City).“Complete” shall mean that the Project is
sufficiently complete for the issuance of a Certificate of Occupancy.
The Project will be constructed by the Developer on the Development Property in
conformity with the Construction Plans approved by the EDA. Prior to completion, upon the
request of the EDA, and subject to applicable safety rules, the Developer will provide the EDA
with reasonable access to the Development Property.“Reasonable access” means at least one site
inspection per week during regular business hours. During construction, marketing and rentals of
the Project, the Developer will deliver progress reports to the EDA from time to time as
reasonably requested by the EDA.
Certificate of Completion. The Developer shall notify the EDA whenSection 3.9.
construction of the Project has been substantially completed. The EDA shall, within 30 days
after such notification. conduct any inspections of the Project it determines necessary in order to
determine whether the Project has been constructed in substantial conformity with the approved
Construction Plans. If the EDA determines that the Project has not been constructed in
substantial conformity with the approved Construction Plans, the EDA shall deliver a written
statement to the Developer indicating in adequate detail the specific respects in which the Project
has not been constructed in substantial conformity with the approved Construction Plans and the
Developer shall have a reasonable period of time to remedy such deficiencies. The EDA shall
re-inspect the Project within a reasonable period of time after receiving notice that such
deficiencies have been remedied in order to determine whether the Project has been constructed
in substantial conformity with the approved Construction Plans and this Agreement. Within a
reasonable period of time after determining that the Project has been constructed in substantial
conformity with the approved Construction Plans, the EDA will furnish to the Developer a
Certificate of Completion substantially in the form attached hereto as Exhibit G certifying the
completion of the Project after determining that the following conditions precedent have been
satisfied:
There shall exist no uncured Event of Default hereunder;(1)
The City shall have issued a Certificate of Occupancy for all of the Improvements(2)
(provided, however, that the Developer shall not be required to obtain a Certificate of Occupancy
with respect to any tenant improvements);
The EDA’s Executive Director, or designee, on behalf of the EDA shall have(3)
reasonably determined that the Project has been substantially completed and constructed in
accordance with all local, state and federal laws and regulations (including without limitation
17
BR291-422-864836.v67
environmental, zoning, building code, housing code, and public health laws and regulations), and
any applicable permits and in substantial conformity with this Agreement and the final
construction plans approved by the City in connection with issuing construction permits, each as
applicable;
The Developer shall certify to the EDA that all costs related to the Project and the(4)
development of the Development Property, including without limitation, payments to all
contractors, subcontractors, and project laborers, have been paid prior to the date of the request to
the EDA.
The Certificate of Completion issued for the Project shall conclusively satisfy and
terminate the agreements and covenants of the Developer in this Agreement solely with respect
to construction of the Project. The issuance of a Certificate of Completion under this Agreement
shall not be construed to relieve the Developer of any inspection or approval required by any City
department in connection with the construction, completion or occupancy of the Project nor shall
it relieve the Developer of any other obligations under this Agreement.
Additional Responsibilities of the Developer.Section 3.10.
The Developer will construct, operate and maintain, or cause to be operated and(1)
maintained, the Project substantially in accordance with the terms of this Agreement, the
Redevelopment Plan and all local, state, and federal laws and regulations including, but not
limited to zoning, building code, public health laws and regulations, except for approved
variances necessary to construct the Project contemplated in the Construction Plans approved by
the EDA.
The Developer will not construct any building or other structures on, over, or(2)
within the boundary lines of any public utility easement unless such construction is provided for
in such easement or has been approved by the utility involved.
The Developer, at its own expense, will replace any public facilities and public(3)
utilities damaged during the construction of the Project, in accordance with the technical
specifications, standards and practices of the owner thereof.
The Developer will comply with all applicable local, state, and federal(4)
environmental laws and regulations, as they relate to the Project.
The Developer will provide and maintain or cause to be maintained at all times(5)
and, from time to time at the request of the EDA, furnish the EDA with proof of payment of
premiums on insurance of amounts and coverages normally held by owners of property similar to
the Project.
Encumbrance of the Development Property. Until the Final Payment Date,Section 3.11.
without the prior written consent of the EDA, neither the Developer nor any successor in interest
to the Developer will engage in any financing or any other transaction creating any mortgage or
other encumbrance or lien upon the Development Property, or portion thereof, whether by
express agreement or operation of law, or suffer any encumbrance or lien to be made on or attach
to the Development Property except for the purpose of obtaining funds only to the extent
18
BR291-422-864836.v67
necessary for financing or refinancing the acquisition, construction and operation of the Project
(including, but not limited to, land and building acquisition, labor and materials, professional
fees, development fees, real estate taxes, reasonably required reserves, construction interest,
organization and other direct and indirect costs of development and financing, costs of
constructing the Project, and an allowance for contingencies), which may include without
limitation regulatory agreements and land use restriction agreements in connection with such
financings; provided, however, this provision shall not be considered a waiver of the
requirements of Section 6.3 hereof with respect to any Transfer (as hereinafter defined) of the
TIF Note in connection with any such financing or refinancing nor shall anything contained in
this Section prohibit the Developer from making transfers in accordance with Section 6.3 hereof.
The EDA hereby consents to any mortgages securing the Developer’s financing or refinancing of
the construction of the Project, including without limitation (A) a mortgage securing the
Developer’s obligations under the Construction Loan Agreement and (B) a mortgage in favor of
Permanent Lender related to a loan from the Permanent Lender to the Developer, and to the
succession of the mortgagee thereunder (or any assignee of the mortgagee) or any purchasers at
or after foreclosure thereof, by the successful bidder at the sale, to title to the Development
Property, and to any other Permitted Encumbrances set forth in Exhibit F; provided, however,
this provision shall not be considered a waiver of the requirements of Section 6.3 hereof with
respect to any Transfer of the TIF Note in connection with any such mortgage. Notwithstanding
the foregoing, the TIF Note shall be terminated by the EDA in the event that any mortgagee (or
any assignee of the mortgagee) or any purchasers at or after foreclosure thereof, by the successful
bidder at the sale, to the title to the Development Property, terminates the Declaration, in
accordance with its terms, or does not otherwise comply with the Declaration.
Business Subsidy Act. The subsidy granted to the Developer pursuant toSection 3.12.
this Agreement is assistance for housing and therefore the provisions of Minnesota Statutes,
Sections 116J.993 to 116J.995, as amended, do not apply. No portion of the tax increment
assistance shall be used to construct any commercial space.
Right to Collect Delinquent Taxes. The Developer acknowledges that theSection 3.13.
EDA is providing substantial aid and assistance in furtherance of the Project through
reimbursement of Public Development Costs. To that end, the Developer agrees for itself, its
successors and assigns, that in addition to the obligation pursuant to statute to pay real estate
taxes, it is also obligated by reason of this Agreement, to pay before delinquency all real estate
taxes assessed against the Development Property and the Project. The Developer acknowledges
that this obligation creates a contractual right on behalf of the EDA through the Termination Date
to sue the Developer or its successors and assigns, to collect delinquent real estate taxes related
to the Development Property and any penalty or interest thereon and to pay over the same as a tax
payment to the county auditor. In any such suit in which the EDA is the prevailing party, the
EDA shall also be entitled to recover its costs, expenses and reasonable attorney fees.
Review of Taxes.Section 3.14.
The Developer agrees that prior to the Termination Date it will not cause a(1)
reduction in the real property taxes paid in respect of the Development Property through: (i)
willful destruction of the Development Property or any part thereof; or (ii) willful refusal to
reconstruct damaged or destroyed property. The Developer also agrees that it will not, prior to
19
BR291-422-864836.v67
the Termination Date, apply for an exemption from or a deferral of property tax on the
Development Property pursuant to any law, or transfer or permit transfer of the Development
Property to any entity whose ownership or operation of the property would result in the
Development Property being exempt from real property taxes under State law; provided,
however, that the Developer may apply for and obtain designation of the Development Property
as low-income rental property classified as “4d” under Minnesota Statutes, Section 273.13,
subdivision 25 (“4d Classification”).
Other than 4d Classification, the Developer shall notify the EDA within 10 days(2)
of filing any petition to seek reduction in market value or property taxes on any portion of the
Development Property under any State law (referred to as a “Tax Appeal”). If as of any Payment
Date, any Tax Appeal is then pending, the EDA will continue to make payments on the TIF Note
but only to the extent that the Pledged Tax Increments relate to the Minimum Market Value
under the Assessment Agreement, as determined by the EDA in its sole discretion, and the EDA
will withhold the Pledged Tax Increments related to property taxes paid with respect to the
market value of the Development Property in excess of the Minimum Market Value under the
Assessment Agreement, as determined by the EDA in its sole discretion. The EDA will release
any withheld amount to the extent not reduced as a result of the Tax Appeal for payment of the
TIF Note promptly after the Tax Appeal is fully resolved and the amount of Pledged Tax
Increments, as applicable, attributable to the disputed tax payments is finalized.
20
BR291-422-864836.v67
ARTICLE IV
ACQUISITION AND CONVEYANCE OF DEVELOPMENT PROPERTY
Purchase Agreement. The EDA has agreed to sell the DevelopmentSection 4.1.
Property to the Developer pursuant to the terms of and subject to the conditions set forth in the
Purchase Agreement, including without limitation execution of this Agreement. Notwithstanding
Sections 4.a., 7, and 14.c., respectively, of the Purchase Agreement, the Expiration Date (as
defined therein) shall be deemed extended to January 1, 2024; the Purchase Price of $1.00 shall
be paid as provided in Section 4.2(3) hereof and conveyance shall be subject to the additional
contingencies set forth in Section 4.2 hereof. The EDA and the Developer acknowledge that the
Development Property is the “Option Property” and that the Project is the “Development” both as
referred to in the Purchase Agreement. The EDA and the Developer acknowledge that this
Agreement is the “Development Agreement” referred to in, and required as a contingency to
Closing under, the Purchase Agreement.
Purchase and Sale of Development Property. The Developer shall acquireSection 4.2.
fee title to the Development Property from the EDA prior to commencement of the Project. The
EDA held a public hearing on the conveyance of the Development Property to the Developer on
May 8, 2023. The Closing on the Development Property shall be subject to the following
contingencies in addition to the conditions set forth in the Purchase Agreement:
The Developer shall have delivered the final plat of the Development Property, in(1)
accordance with the Purchase Agreement, to Guaranty Commercial Title, Inc for recording
against the Development Property immediately after the Deed;
The Developer shall have executed the Declaration and the Assessment(2)
Agreement and delivered them to Guaranty Commercial Title, Inc for recording against the
Development Property immediately following the Deed;
The Purchase Price for the Development Property shall be paid at Closing as(3)
follows: $1 in cash by Developer to the EDA;
The Developer shall have obtained a “permit ready” letter from the City, subject(4)
only to recording the final plat, which letter shall be issued by the City in its sole discretion; and
The Developer shall have paid all of the EDA’s Administrative Costs required to(5)
have been paid as of the Closing Date in accordance with Section 3.4 hereof, all taxes and special
assessments dues with respect to the Development Property, and all Closing costs in accordance
with the Purchase Agreement; the Earnest Money deposited by the Developer with Guaranty
Commercial Title, Inc shall be applied to the payment of such costs and any excess shall be
reimbursed to the Developer.
The Developer shall pay and shall assume or pay all taxes, special assessments and
similar governmental impositions which have not been paid prior to Closing and any such
amounts due and payable after the Closing Date and all future years.
21
BR291-422-864836.v67
Conveyance Subject to Right of Re-entry. In accordance with Section 13Section 4.3.
of the Purchase Agreement, the EDA’s conveyance of the Development Property to the
Developer pursuant to this Agreement and the Purchase Agreement will be made pursuant to the
Deed and subject to a right of re-entry if, barring any Unavoidable Delays, the Developer fails to
satisfy the condition subsequent set forth in Exhibit B to the Deed (the “Condition Subsequent”).
If the Developer breaches the Condition Subsequent, the Developer shall, upon receipt of written
request from the EDA, re-convey the Development Property back to the EDA. If the Developer
fails to re-convey the Development Property to the EDA, the EDA may elect to exercise its right
of re-entry by commencing an action in Hennepin County District Court to establish the breach
of the Condition Subsequent. If the EDA establishes a breach of the Condition Subsequent, title
to and the right to possession of the Development Property and title to all improvements located
thereon reverts to the EDA, and the Developer is not entitled to any compensation from the EDA
for the value of any improvements the Developer has made to the Development Property.
The Developer shall notify the EDA when the Condition Subsequent has been satisfied.
The EDA shall, within 10 Business Days after such notification, inspect the Development
Property in order to determine whether the Condition Subsequent has been satisfied. If the EDA
determines that the Condition Subsequent has been satisfied, the EDA shall furnish to the
Developer a Certificate of Release in the form attached as Exhibit C to the Deed. The Certificate
of Release shall conclusively satisfy and terminate the EDA’s right of re-entry of under the Deed
and this Agreement. The Developer must record the Certificate of Release in the proper County
land records at its expense.
As Is Conveyance. In recognition of the significant economicSection 4.4.
contributions which the EDA has made to redevelop the Development Property, the Developer
shall take the conveyance of Development Property on an “AS IS”“WHERE IS” basis, with all
faults and defects, without any warranties, express or implied, except such representations and
warranties as specifically set forth in this Agreement, and the Developer waives any claims
against the EDA and its governing bodies’ members, officers, agents, including the independent
contractors, consultants and legal counsel, servants and employees thereof (for purposes of this
Section, collectively the “Indemnified Parties”), for indemnification, contribution, reimbursement
or other payments arising under federal and state law and the common law relating to
environmental or any other condition of Development Property. The EDA has no obligation to
produce any evidence of title. The Developer will obtain its own title evidence from the Title
Company. The Developer acknowledges that it has obtained its own environmental assessments
of the Development Property, and that the Developer has had sufficient time and opportunity to
fully review and consider said documents. Neither the City nor the EDA makes any
representations concerning nor shall have any responsibility or obligation to undertake any
environmental cleanup or remediation on the Development Property. Following delivery of the
Deed, the Developer agrees to remediate any environmental contamination or pollution on the
Development Property that may be required by law.
22
BR291-422-864836.v67
ARTICLE V
EVENTS OF DEFAULT
Events of Default Defined. The following shall be “Events of Default”Section 5.1.
under this Agreement and the term “Event of Default” shall mean whenever it is used in this
Agreement any one or more of the following events:
Failure by the Developer to timely pay any ad valorem real property taxes(1)
assessed with respect to the Development Property, subject to the right to contest in accordance
with this Agreement.
Subject to Unavoidable Delays, failure by the Developer to commence(2)
construction of the Project within thirty (30) days of the Closing Date on the Property, and to
proceed with due diligence to substantially complete the construction of the Project pursuant to
the terms, conditions and limitations of this Agreement and obtain a certificate of occupancy
from the City by July 31, 2026.
Failure of the Developer to observe or perform any other material covenant,(3)
condition, obligation or agreement on its part to be observed or performed under the Declaration
or this Agreement, including, without limitation, compliance with the requirements set forth in
Section 3.3 hereof.
If, prior to the Completion Date, the Developer shall(4)
file any petition in bankruptcy or for any reorganization, arrangement,(a)
composition, readjustment, liquidation, dissolution, or similar relief under the United
States Bankruptcy Act of 1978, as amended, or under any similar federal or state law; or
be adjudicated as bankrupt or insolvent; or if a petition or answer(b)
proposing the adjudication of the Developer, as bankrupt or its reorganization under any
present or future federal bankruptcy act or any similar federal or state law shall be filed in
any court and such petition or answer shall not be discharged or denied within 90 days
after the filing thereof; or a receiver, trustee or liquidator of the Developer, or of the
Project, or part thereof, shall be appointed in any proceeding brought against the
Developer, and shall not be discharged within 90 days after such appointment, or if the
Developer, shall consent to or acquiesce in such appointment.
Notwithstanding anything to the contrary set forth in this Agreement any lenders
providing construction or permanent financing for the Project and any partner of the Developer
shall have the right, but not the obligation, to cure an Event of Default during the cure period
provided for the Developer.
Remedies on Default. Whenever any Event of Default referred to inSection 5.2.
Section 5.1 hereof occurs and is continuing after the applicable cure period, as specified below,
the EDA may take any one or more of the following actions after the giving of 30 days’ written
notice to the Developer, but only if the Event of Default has not been cured within said 30 days;
23
BR291-422-864836.v67
provided that if such Event of Default cannot be reasonably cured within the 30 day period, and
the Developer has provided assurances reasonably satisfactory to the EDA that it is proceeding
with due diligence to cure such default, such 30 day cure period shall be extended for a period
deemed reasonably necessary by the EDA to effect the cure, but in any event not to exceed 180
days:
The EDA may suspend its performance under this Agreement and the TIF Note(1)
until such default is cured or the EDA determines that it has received assurances from the
Developer, deemed adequate by the EDA, that the Developer will cure its default and continue its
performance under this Agreement. Interest on the TIF Note shall not accrue during the period of
any suspension of payment.
The EDA may terminate this Agreement and/or cancel the TIF Note.(2)
The EDA may take any action, including legal or administrative action, in law or(3)
equity, which may appear necessary or desirable to enforce performance and observance of any
obligation, agreement, or covenant of the Developer under this Agreement.
Notwithstanding anything to the contrary set forth in this Agreement, any lenders
providing construction or permanent financing for the Project, and any partner in the Developer
shall have the right, but not the obligation, to cure an Event of Default during the cure period
provided for the Developer.
If the EDA has been provided a notice address for a lender providing construction or
permanent financing for the Project or for the Tax Credit Investor, the EDA agrees to send to said
address(es) the same notice provided to the Developer of any Event of Default hereunder and the
same opportunity to cure the same.
No Remedy Exclusive. No remedy herein conferred upon or reserved toSection 5.3.
the EDA 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.
No Implied Waiver. In the event any agreement contained in thisSection 5.4.
Agreement should be breached by any party and thereafter waived by any other party, such
waiver shall be limited to the particular breach so waived and shall not be deemed to waive any
other concurrent, previous or subsequent breach hereunder.
Indemnification of EDA and City.Section 5.5.
The Developer releases from and covenants and agrees that the EDA and the City,(1)
and their governing bodies’ members, officers, agents, including the independent contractors,
consultants and legal counsel, servants and employees thereof (for purposes of this Section,
collectively the “Indemnified Parties”) shall not be liable for and agrees to indemnify and hold
24
BR291-422-864836.v67
harmless the Indemnified Parties against any loss or damage to property or any injury to or death
of any person occurring at or about or resulting from any defect in the Project, or any other loss,
cost expense, or penalty, except to the extent caused by any willful misrepresentation or any
willful or wanton misconduct of the Indemnified Parties.
Except for any willful misrepresentation or any willful or wanton misconduct of(2)
the Indemnified Parties, the Developer agrees to protect and defend the Indemnified Parties, now
and forever, and further agrees to hold the Indemnified Parties harmless from any claim, demand,
suit, action or other proceeding whatsoever by any person or entity whatsoever arising or
purportedly arising from the actions or inactions of the Developer (or if other persons acting on
its behalf or under its direction or control) under this Agreement, or the transactions
contemplated hereby or the acquisition, construction, installation, ownership, and operation of
the Project; including, without limitation, any pecuniary loss or penalty (plus interest thereon at
the rate of 5.00% per annum from the date such loss is incurred or penalty is paid by the EDA or
the City) as a result of the Project failing to cause the TIF District to qualify as a “housing
district” under Section 469.174, Subdivision 11, of the TIF Act, or to violate limitations as to the
use of Tax Increments as set forth in Section 469.176, Subdivision 4d of the TIF Act.
All covenants, stipulations, promises, agreements and obligations of the EDA(3)
contained herein shall be deemed to be the covenants, stipulations, promises, agreements and
obligations of the EDA or the City, and not of any governing body member, officer, agent,
servant or employee of the City or the EDA.
Reimbursement of Attorneys’ Fees. If an Event of Default referred to inSection 5.6.
Section 5.1 hereof occurs, and the City or the EDA shall employ attorneys or incur other
reasonable expenses for the collection of payments due hereunder, or for the enforcement of
performance or observance of any obligation or agreement on the part of the Developer contained
in this Agreement, the Developer will within 30 days reimburse the City and the EDA for the
reasonable fees of such attorneys and such other reasonable expenses so incurred.
25
BR291-422-864836.v67
ARTICLE VI
ADDITIONAL PROVISIONS
Restrictions on Use.The Developer agrees for itself, its successors andSection 6.1.
assigns and every successor in interest to the Development Property, or any part thereof, that the
Developer and such successors and assigns shall operate, or cause to be operated, the Project in
accordance with this Agreement and as an affordable rental housing development in accordance
with this Agreement and the Declaration until the end of the Qualified Project Period (as defined
in the Declaration).
Reports. The Developer shall provide the EDA reports in a timely mannerSection 6.2.
with such information about the Project as the EDA may reasonably request for purposes of
satisfying any reporting requirements imposed by law on the EDA.
Limitations on Transfer and Assignment.Section 6.3.
ExceptPrior to the Termination Date, except as provided in Section 3.11 and(1)
Section 6.3(4), the Developer will not sell, assign, convey, lease or transfer in any other mode or
manner (collectively,“Transfer”) this Agreement, the TIF Note, or the Development Property or
the Project, or any interest therein (with the exception of mortgage financing and lease of housing
units in the ordinary course of operations), without the express written approval of the EDA,
which consent will not be unreasonably withheld, conditioned or delayed. The EDA shall deliver
a written statement to the Developer indicating whether the Transfer is approved or specifying
the additional conditions to be satisfied in accordance with Section 6.3(2) hereof. The provisions
of this Section apply to all subsequent Transfers by authorized transferees;
The EDA shall be entitled to require, as conditions to any approval of any(2)
Transfer of this Agreement, the Development Property, the Project, or the TIF Note in connection
therewith, which approval will not be unreasonably withheld, conditioned or delayed, that:
Any proposed transferee shall have the qualifications and financial(a)
responsibility, as determined by the EDA, necessary and adequate to fulfill the obligations
undertaken in this Agreement by the Developer;
Any proposed transferee, by instrument in writing satisfactory to the EDA(b)
shall, for itself and its successors and assigns, and expressly for the benefit of the EDA
have expressly assumed any of the remaining obligations of the Developer under this
Agreement and agreed to be subject to all the conditions and restrictions to which the
Developer is subject;
There shall be submitted to the EDA for review all instruments and other(c)
legal documents involved in effecting transfer, and if approved by the EDA, its approval
shall be indicated to the Developer in writing;
Any proposed transferee of the TIF Note shall (i) execute and deliver to the(d)
EDA the Acknowledgment Regarding TIF Note in the form included in Exhibit 2 to the
26
BR291-422-864836.v67
TIF Note and (ii) surrender the TIF Note to the EDA either in exchange for a new fully
registered note or for transfer of the TIF Note on the registration records for the TIF Note
maintained by the EDA;
The Developer and its transferees shall comply with such other conditions(e)
as are necessary in order to achieve and safeguard the purposes of the TIF Act and this
Agreement; and
In the absence of a specific written agreement by the EDA to the contrary,(f)
no such transfer or approval by the EDA thereof shall be deemed to relieve the Developer
or any other party bound in any way by this Agreement or otherwise with respect to the
construction of the Project, from any of its obligations with respect thereto.
The Developer agrees to pay all reasonable legal fees and expenses of the EDA,(3)
including fees of the City Attorney and outside counsel retained by the EDA to review the
documents submitted to the EDA in connection with any Transfer.
Nothing contained in this Section shall prohibit the Developer from (i) entering(4)
into leases with tenants in the ordinary course of business, (ii) entering into easements or other
agreements necessary for the construction or operation of the Project, (iii) admitting or removing
limited partners or transferring direct or indirect limited partner interests in the Developer, or
minority interests in the general partner of the Developer, or admitting or removing partners in
accordance with the applicable organizational documents, or (iv) removing the general partner of
the Developer for cause at the direction of the Tax Credit Investor in accordance with the
Developer’s partnership agreement.
Subject to satisfaction of clauses 2(d) and (3), the EDA approves the Permanent(5)
Lender Collateral Assignment.
Conflicts of Interest. No member of the governing body or other officialSection 6.4.
of the City or the EDA shall have any financial interest, direct or indirect, in this Agreement, the
Development Property or the Project, or any contract, agreement or other transaction
contemplated to occur or be undertaken thereunder or with respect thereto, nor shall any such
member of the governing body or other official participate in any decision relating to this
Agreement which affects his or her personal interests or the interests of any corporation,
partnership or association in which he or she is directly or indirectly interested. No member,
official or employee of the City or the EDA shall be personally liable to the Developer in the
event of any default or breach by the EDA or successor or on any obligations under the terms of
this Agreement.
Titles of Articles and Sections. Any titles of the several parts, articles andSection 6.5.
sections of this Agreement are inserted for convenience of reference only and shall be
disregarded in construing or interpreting any of its provisions.
Notices and Demands. Except as otherwise expressly provided in thisSection 6.6.
Agreement, a notice, demand or other communication under this Agreement by any party to any
27
BR291-422-864836.v67
other shall be sufficiently given or delivered if it is dispatched by registered or certified mail,
postage prepaid, return receipt requested, or delivered personally, and
(a)in the case of the Developer is addressed to or delivered personally to:
Wangstad Commons LLLP
c/o JO Companies, LLC
510 Brunson Street Suite 100
Saint Paul, MN 55130
Attn: Johnny Opara
With copies to:Winthrop & Weinstine, P.A.
225 S. 6th Street, Suite 3500
Minneapolis, MN 55402
Attn: Jon L. Peterson, Esq.
and
U.S. Bancorp Community Development
Corporation
1307 Washington Avenue, Suite 300
Mail Code: SL MO RMCD
St. Louis, MO 63103
USB Project No: 28763
Attn.: Director of LIHTC Asset Management
and
Jill Goldstein, Esq.
Kutak Rock LLP
1650 Farnam Street
Omaha, NE 68102
(b)in the case of the EDA, is addressed to or delivered personally to the EDA at:
Economic Development Authority of Brooklyn Center, Minnesota
6301 Shingle Creek Parkway
Brooklyn Center, MN 55430
Attn: Executive Director
(c) in the case of the Construction Lender, is addressed to or delivered personally to:
U.S. Bank National Association
c/o U.S. Bancorp Community Development Corporation
28
BR291-422-864836.v67
1307 Washington Avenue
Suite 300
Mailcode: SL MO RMCD
St. Louis, Missouri 63103
Attention: Director of LIHTC Asset Management
With a copy to:
Kutak Rock LLP
8601 N. Scottsdale Road, Suite 300
Scottsdale, Arizona 85253
Attention: Heather K. Aeschleman
(d) in the case of the Permanent Lender, is addressed to or delivered personally to:
Greater Minnesota Housing Fund
332 Minnesota Street, Suite 1650W
St. Paul, Minnesota 55101
Attention: President
or at such other address with respect to any such party as that party may, from time to time,
designate in writing and forward to the other, as provided in this Section.
No Additional Waiver Implied by One Waiver. If any agreementSection 6.7.
contained in this Agreement should be breached by either party and thereafter waived by the
other party, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent, previous or subsequent breach hereunder.
Counterparts. This Agreement may be executed in any number ofSection 6.8.
counterparts, each of which shall constitute one and the same instrument.
Law Governing. This Agreement will be governed and construed inSection 6.9.
accordance with the laws of the State.
Term; Termination. Except as provided in the Declaration, and unless thisSection 6.10.
Agreement is terminated earlier in accordance with its terms this Agreement shall terminate on
the Termination Date. Early termination upon a written request from Developer shall be in the
EDA’s sole discretion and upon a determination that such termination will not limit or interfere
with the EDA’s ability to pool Tax Increments generated by the TIF District for affordable
housing in accordance with the TIF Act. After the Termination Date, if requested by the
Developer, the EDA will provide a termination certificate as to the Developer’s obligations
hereunder.
Provisions Surviving Rescission, Expiration or Termination. Sections 5.5Section 6.11.
and 5.6 hereof shall survive any rescission, termination or expiration of this Agreement with
respect to or arising out of any event, occurrence or circumstance existing prior to the date
thereof.
29
BR291-422-864836.v67
Superseding Effect. This Agreement and the Purchase Agreement,Section 6.12.
collectively, reflect the entire agreement of the parties with respect to the development of the
Development Property and supersedes in all respects all prior agreements of the parties, whether
written or otherwise, with respect to the development of the Development Property. The
Developer acknowledges that Sections 4.1 and 4.2 hereof amend and supplements the Purchase
Agreement to the extent specifically provided herein.
Relationship of Parties. Nothing in this Agreement is intended, or shall beSection 6.13.
construed, to create a partnership or joint venture among or between the parties hereto, and the
rights and remedies of the parties hereto shall be strictly as set forth in this Agreement. All
covenants, stipulations, promises, agreements and obligations of the EDA contained herein shall
be deemed to be the covenants, stipulations, promises, agreements and obligations of the EDA
and not of any governing body member, officer, agent, servant or employee thereof.
Venue. All matters, whether sounding in tort or in contract, relating to theSection 6.14.
validity, construction, performance, or enforcement of this Agreement shall be controlled by and
determined in accordance with the laws of the State, and the Developer agrees that all legal
actions initiated by the Developer or the EDA with respect to or arising from any provision
contained in this Agreement shall be initiated, filed and venued exclusively in the State of
Minnesota, Hennepin County, District Court and shall not be removed therefrom to any other
federal or state court.
Merger; Amendment. None of the provisions of this Agreement areSection 6.15.
intended to or shall be merged by reason of any deed transferring any interest in the Development
Property and any such deed shall not be deemed to affect or impair the provisions and covenants
of this Agreement. No waiver, consent, modification or change of terms of this Agreement shall
bind any party unless in writing and signed by all parties. Such waiver, consent, modification or
change, if made, shall be effective only in the specific instance and for the specific purpose
given. There are no understandings, agreements, or representations, oral or written, not specified
herein regarding this Agreement.
Interpretation; Concurrence. The language in this Agreement shall beSection 6.16.
construed simply according to its generally understood meaning, and not strictly for or against
any party and no interpretation shall be affected by which party drafted any part of this
Agreement. By executing this Agreement, the parties acknowledge that they (a) enter into and
execute this Agreement knowingly, voluntarily and willingly of their own volition with such
consultation with legal counsel as they deem appropriate; (b) have had a sufficient amount of
time to consider this Agreement’s terms and conditions, and to consult an attorney before signing
this Agreement; (c) have read this Agreement, understand all of its terms, appreciate the
significance of those terms and have made the decision to accept them as stated herein; and (d)
have not relied upon any representation or statement not set forth herein.
30
BR291-422-864836.v67
IN WITNESS WHEREOF, the EDA has caused this Agreement to be duly executed in its
name and on its behalf, and the Developer has caused this Agreement to be duly executed in its
name and on its behalf, on or as of the date first above written.
ECONOMIC DEVELOPMENT AUTHORITY OF
BROOKLYN CENTER, MINNESOTA
By
Its President
By
Its Executive Director
This is a signature page to the TIF Assistance Agreement.
S- 1
BR291-422-864836.v67
WANGSTAD COMMONS LLLP,
a Minnesota limited liability limited partnership
By: Wangstad Commons GP, LLC,
a Minnesota limited liability company
Its: General Partner
By: JO Companies, LLC,
a Minnesota limited liability company
Its: Sole Member
By:__________________________
Name: Johnny Opara
Its: Manager
This is a signature page to the TIF Assistance Agreement.
S- 2
BR291-422-864836.v67
EXHIBIT A
DESCRIPTION OF TIF DISTRICT
The area encompassed by the TIF District shall also include all street or utility rights-of-way
located upon or adjacent to the property described below:
Four parcels comprising approximately 1.8 acres of land at the northwest intersection of
Brooklyn Boulevard and 61st Avenue N in Brooklyn Center, Minnesota identified as property
numbers (1) 34-119-21-43-0049, (2) 34-119-21-43-0050, (3) 34-119-21-43-0051, and (4)
34-119-21-43-0052, subject to a final plat of the Property.
A- 1
BR291-422-864836.v67
EXHIBIT B
LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
The property located in the City of Brooklyn Center, Hennepin County, Minnesota described as:
Parcel 1
6017 Brooklyn Boulevard
Lot 1, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0049
Parcel 2
6101 Brooklyn Boulevard
Lot 2, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0050
Parcel 3
3600 61st Avenue N.
Lot 3, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0051
Parcel 4
3606 61st Avenue N.
Lot 4, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0052
C- 1
BR291-422-864836.v67
EXHIBIT C
PUBLIC DEVELOPMENT COSTS
Land acquisition
Site grading and improvements
Surface and underground parking
Underground and above ground utilities
All rental housing construction costs eligible for reimbursement under the TIF Act
C- 1
BR291-422-864836.v67
EXHIBIT D
FORM OF TAXABLE TIF NOTE
No. R-1 [$248,000]
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER, MINNESOTA
TAXABLE TAX INCREMENT REVENUE NOTE
(WANGSTAD COMMONS)
___________, 20___
The ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER,
MINNESOTA (the “EDA”), hereby acknowledges itself to be indebted and, for value received,
hereby promises to pay the amounts hereinafter described (the “Payment Amounts”) to Wangstad
Commons LLLP, a Minnesota limited liability limited partnership or its registered assigns (the
“Registered Owner”), the principal amount of [Two Hundred Forty-Eight Thousand and
00/100 dollars ($248,000)], but only in the manner, at the times, from the sources of revenue,
and to the extent hereinafter provided.
This Note is issued pursuant to that certain TIF Assistance Agreement, dated as of
_______, 2023, as the same may be amended from time to time (the “TIF Assistance
Agreement”), by and between the EDA and Wangstad Commons LLLP. (the “Developer”).
Unless otherwise defined herein or unless context requires otherwise, undefined terms used
herein shall have the meanings set forth in the TIF Assistance Agreement.
The outstanding and unpaid principal amount of this Note shall bear simple,
non-compounding interest at the rate equal to ___% per annum (which is the lesser of 6.00% per
annum or the rate per annum on the Developer’s permanent first lien mortgage financing for the
construction of the Project); provided that no interest shall accrue on this Note during any period
that an Event of Default has occurred, and such Event of Default is continuing, under the TIF
Assistance Agreement and EDA has exercised its remedy under the TIF Assistance Agreement to
suspend payment on the Note. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
The amounts due under this Note shall be payable on August 1, 2025 and on each
February 1 and August 1 thereafter to and including the earliest of (i) the date on which the entire
principal and accrued interest on the TIF Note has been paid in full; or (ii) February 1, 2042; or
(iii) any earlier date the TIF Assistance Agreement or this Note is cancelled in accordance with
the terms of the TIF Assistance Agreement or deemed paid in full; or (iv) the February 1
following the date the TIF District is terminated in accordance with the TIF Act (the “Final
Payment Date”) or, if the first should not be a Business Day (as defined in the TIF Assistance
Agreement) the next succeeding Business Day (collectively, the “Payment Dates”). On each
D- 1
BR291-422-864836.v67
Payment Date, the EDA shall pay by check or draft mailed to the person that was the Registered
Owner of this Note at the close of the last business day preceding such Payment Date an amount
equal to 90% of the Tax Increments (as hereinafter defined) received by the EDA during the
6-month period preceding such Payment Date (“Pledged Tax Increments”).“Tax Increments” are
the tax increments derived from the Development Property (as defined in the TIF Assistance
Agreement) and the improvements thereon which have been received and are permitted to be
retained by the EDA in accordance with the Minnesota Statutes, Sections 469.174 through
469.1794, as the same may be amended or supplemented from time to time (the “TIF Act”)
including, without limitation, Minnesota Statutes, Sections 469.177; 469.176, Subd. 4h; and
469.175, Subd. 1a, as the same may be amended from time to time. Payments on this Note shall
be payable solely from the Pledged Tax Increments. All payments made by the EDA under this
Note shall first be applied to accrued interest and then to principal. If Pledged Tax Increments
are insufficient to pay any accrued interest due, such unpaid interest shall be carried forward
without interest.
This Note shall terminate and be of no further force and effect following the Final
Payment Date defined above, or any date upon which the EDA shall have terminated the TIF
Assistance Agreement under Section 5.2 thereof or on the date that all principal and interest
payable hereunder shall have been or deemed paid in full, whichever occurs earliest. This Note
may be prepaid in whole or in part at any time without penalty.
The EDA makes no representation or covenant, express or implied, that the Pledged Tax
Increments will be sufficient to pay, in whole or in part, the amounts which are or may become
due and payable hereunder. There are risk factors in the amount of Tax Increments that may
actually be received by the EDA and some of those factors are set forth in Exhibit 1 attached
hereto. The Registered Owner acknowledges these risk factors and understands and agrees that
payments by the EDA under this Note are subject to these and other factors.
The EDA’s payment obligations hereunder shall be subject to adjustment pursuant to
Sections 3.2(10) and 3.14 of the TIF Agreement and are further subject to the conditions that (i)
no Event of Default under Section 5.1 of the TIF Assistance Agreement shall have occurred and
be continuing at the time payment is otherwise due hereunder, including without limitation
failure to obtain the Compliance Certificate in accordance with Section 3.11 of the TIF
Assistance Agreement and deliver the Declaration (as defined therein), and (ii) the TIF
Assistance Agreement shall not have been terminated pursuant to Section 5.2, and (iii) all
conditions set forth in Section 3.2(2) of the TIF Assistance Agreement have been satisfied as of
such date, and (iv) Section 3.14 of the TIF Assistance Agreement. Any such suspended and
unpaid amounts shall become payable, without interest accruing thereon in the meantime, if this
Note has not been terminated in accordance with Section 5.2 of the TIF Assistance Agreement
and said Event of Default shall thereafter have been cured in accordance with Section 5.2. If
pursuant to the occurrence of an Event of Default under the TIF Assistance Agreement the EDA
elects, in accordance with the TIF Assistance Agreement to cancel and rescind the TIF
Assistance Agreement and/or this Note, the EDA shall have no further debt or obligation under
this Note whatsoever. Reference is hereby made to all of the provisions of the TIF Assistance
Agreement, for a fuller statement of the rights and obligations of the EDA to pay the principal of
this Note and the interest thereon, and said provisions are hereby incorporated into this Note as
though set out in full herein.
D- 2
BR291-422-864836.v67
THIS NOTE IS A SPECIAL, LIMITED REVENUE OBLIGATION AND NOT A
GENERAL OBLIGATION OF THE CITY OF BROOKLYN CENTER, MINNESOTA
(THE “CITY”) OR THE EDA AND IS PAYABLE BY THE EDA ONLY FROM THE
SOURCES AND SUBJECT TO THE QUALIFICATIONS STATED OR REFERENCED
HEREIN. THIS NOTE IS NOT A GENERAL OBLIGATION OF THE CITY OR THE
EDA, AND THE FULL FAITH AND CREDIT AND TAXING POWERS OF NEITHER
THE CITY NOR THE EDA ARE PLEDGED TO THE PAYMENT OF THE PRINCIPAL
OF OR INTEREST ON THIS NOTE AND NO PROPERTY OR OTHER ASSET OF THE
CITY OR THE EDA, SAVE AND EXCEPT THE ABOVE-REFERENCED PLEDGED
TAX INCREMENTS, IS OR SHALL BE A SOURCE OF PAYMENT OF THE EDA’S
OBLIGATIONS HEREUNDER.
The Registered Owner shall never have or be deemed to have the right to compel any
exercise of any taxing power of the EDA or the City or of any other public body, and neither the
EDA nor any person executing or registering this Note shall be liable personally hereon by
reason of the issuance or registration thereof or otherwise.
This Note is issued by the EDA in aid of financing a project pursuant to and in full
conformity with the Constitution and laws of the State of Minnesota, including the TIF Act.
This Note may be assigned only as provided in Section 6.3 of the TIF Assistance
Agreement and subject to the assignee executing and delivering to the EDA the
Acknowledgment Regarding TIF Note in the form set forth in Exhibit 2 attached hereto.
Additionally, in order to assign the Note, the assignee shall surrender the same to the EDA either
in exchange for a new fully registered note or for transfer of this Note on the registration records
maintained by the EDA for the Note. Each permitted assignee shall take this Note subject to the
foregoing conditions and subject to all provisions stated or referenced herein.
IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions, and things
required by the Constitution and laws of the State of Minnesota to be done, to have happened,
and to be performed precedent to and in the issuance of this Note have been done, have
happened, and have been performed in regular and due form, time, and manner as required by
law; and that this Note, together with all other indebtedness of the EDA outstanding on the date
hereof and on the date of its actual issuance and delivery, does not cause the indebtedness of the
EDA to exceed any constitutional or statutory limitation thereon.
D- 3
BR291-422-864836.v67
IN WITNESS WHEREOF, the ECONOMIC DEVELOPMENT AUTHORITY OF
BROOKLYN CENTER, MINNESOTA by its Board of Commissioners, has caused this Note to
be executed by the manual signatures of its President and Executive Director and has caused this
Note to be issued on and dated as of the date first written above.
ECONOMIC DEVELOPMENT
AUTHORITY OF BROOKLYN CENTER,
MINNESOTA
By ____________________________
Its President
By ____________________________
Its Executive Director
Signature Page for Tax Increment Revenue Note (Wangstad Commons)
D- 4
BR291-422-864836.v67
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 on the books kept by the undersigned for
such purposes.
NAME AND ADDRESS OF
REGISTERED OWNER
DATE OF
REGISTRATION
SIGNATURE OF
EXECUTIVE DIRECTOR
Wangstad Commons LLLP
c/o JO Companies, LLC
510 Brunson Street Suite 100
Saint Paul, MN 55130
_________, 20_____________________
____________________
____________________
____________________
_____________________________, 20_____________________
____________________
____________________
____________________
_____________________________, 20_____________________
D- 5
BR291-422-864836.v67
Exhibit 1
to Taxable TIF Note
RISK FACTORS
Risk factors on the amount of Tax Increments that may actually be received by the EDA
include but are not limited to the following:
1.Value of Project. If the contemplated Project (as defined in the TIF Assistance
Agreement) constructed in the tax increment financing district is completed at a lesser level of
value than originally contemplated, it will generate fewer taxes and fewer tax increments than
originally contemplated.
2.Damage or Destruction. If the Project is damaged or destroyed after completion,
its value will be reduced, and taxes and tax increments will be reduced. Repair, restoration or
replacement of the Project may not occur, may occur after only a substantial time delay, or may
involve property with a lower value than the Project, all of which would reduce taxes and tax
increments.
3.Change in Use to Tax-Exempt. The Project could be acquired by a party that
devotes it to a use which causes the property to be exempt from real property taxation. Taxes
and tax increments would then cease.
4.Depreciation. The Project could decline in value due to changes in the market for
such property or due to the decline in the physical condition of the property. Lower market
valuation will lead to lower taxes and lower tax increments.
5.Non-payment of Taxes. If the property owner does not pay property taxes, either
in whole or in part, the lack of taxes received will cause a lack of tax increments. The Minnesota
system of collecting delinquent property taxes is a lengthy one that could result in substantial
delays in the receipt of taxes and tax increments, and there is no assurance that the full amount of
delinquent taxes would be collected. Amounts distributed to taxing jurisdictions upon a sale
following a tax forfeiture of the property are not tax increments.
6.Reductions in Taxes Levied. If property taxes are reduced due to decreased
municipal levies, taxes and tax increments will be reduced. Reasons for such reduction could
include lower local expenditures or changes in state aid to municipalities. For instance, in 2001
the Minnesota Legislature enacted an education funding reform that involved the state increasing
school aid in lieu of the local general education levy (a component of school district tax levies).
7.Reductions in Tax Capacity Rates. The taxable value of real property is
determined by multiplying the market value of the property by a tax capacity rate. Tax capacity
rates vary by certain categories of property; for example, the tax capacity rates for residential
homesteads are currently less than the tax capacity rates for commercial and industrial property.
In 2001 the Minnesota Legislature enacted property tax reform that lowered various tax capacity
D- 6
BR291-422-864836.v67
rates to “compress” the difference between the tax capacity rates applicable to residential
homestead properties and commercial and industrial properties.
8.Changes to Local Tax Rate. The local tax rate to be applied in the tax increment
financing district is the lower of the current local tax rate or the original local tax rate for the tax
increment financing district. In the event that the Current Local Tax Rate is higher than the
Original Local Tax Rate, then the “excess” or difference that comes about after applying the
lower Original Local Tax Rate instead of the Current Local Tax Rate is considered “excess” tax
increment and is distributed by Hennepin County to the other taxing jurisdictions and such
amount is not available to the EDA as tax increment.
9.Legislation. The Minnesota Legislature has frequently modified laws affecting
real property taxes, particularly as they relate to tax capacity rates and the overall level of taxes as
affected by state aid to municipalities.
10.Affordable Housing Declaration. The TIF District will cease to qualify as a
housing tax increment financing district and the TIF Note will terminate if the Project ceases to
be operated in accordance with the Declaration required by and defined in the TIF Assistance
Agreement defined in the attached Note.
D- 7
BR291-422-864836.v67
Exhibit 2
to Taxable TIF Note
ACKNOWLEDGMENT REGARDING TIF NOTE
The undersigned, ______________ a ___________ (“Note Holder”), hereby certifies and
acknowledges that:
A.On the date hereof the Note Holder has [acquired from]/[made a loan (the “Loan”)
[to/for the benefit] of] Wangstad Commons LLLP (the “Developer”) [secured in part by] the
Taxable Tax Increment Revenue Note, a pay-as-you-go tax increment revenue note (the “Note”)
in the original principal amount of [$248,000] [dated __________, 20___ of]/[to be issued by]
the Economic Development Authority of Brooklyn Center, Minnesota (the “EDA”).
B.The Note Holder has had the opportunity to ask questions of and receive from the
Developer all information and documents concerning the Note as it requested and has had access
to any additional information the Note Holder thought necessary to verify the accuracy of the
information received. In determining to [acquire the Note]/[make the Loan], the Note Holder has
made its own determinations and has not relied on the EDA or information provided by the EDA.
C.The Note Holder represents and warrants that:
1.The Note Holder is acquiring [the Note]/[an interest in the Note as
collateral for the Loan] for investment and for its own account, and without any view to
resale or other distribution.
2.The Note Holder has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of acquiring [the
Note]/[an interest in the Note as collateral for the Loan].
3.The Note Holder understands that the Note is a security which has not
been registered under the Securities Act of 1933, as amended, or any state securities law,
and must be held until its sale is registered or an exemption from registration becomes
available.
4.The Note Holder is aware of the limited payment source for the Note and
interest thereon and risks associated with the sufficiency of that limited payment source.
5.The Note Holder is [a bank or other financial institution] / [the owner of
the property from which the tax increments which are pledged to the Note are generated].
D.The Note Holder understands that the Note is payable solely from certain tax
increments derived from certain properties located in a tax increment financing district, if and as
received by the EDA. The Note Holder acknowledges that the EDA has made no representation
or covenant, express or implied, that the revenues pledged to pay the Note will be sufficient to
pay, in whole or in part, the principal and interest due on the Note. Any amounts which have not
been paid on the Note on or before the final maturity date of the Note shall no longer be payable,
D- 8
BR291-422-864836.v67
as if the Note had ceased to be an obligation of the EDA. The Note Holder understands that the
Note will never represent or constitute a general obligation, debt or bonded indebtedness of the
City of Brooklyn Center, Minnesota (the “City”), the EDA, the State of Minnesota, or any
political subdivision thereof and that no right will exist to have taxes levied by the City, the
EDA, the State of Minnesota or any political subdivision thereof for the payment of principal and
interest on the Note.
E.The Note Holder understands that the Note is payable solely from certain tax
increments, which are taxes received on improvements made to certain property (the “Project”) in
a tax increment financing district from the increased taxable value of the property over its base
value at the time that the tax increment financing district was created, which base value is called
“original net tax capacity”. There are risk factors in relying on tax increments to be received,
which include, but are not limited to, the following:
1.Value of Project. If the contemplated Project constructed in the tax
increment financing district is completed at a lesser level of value than originally
contemplated, it will generate fewer taxes and fewer tax increments than originally
contemplated.
2.Damage or Destruction. If the Project is damaged or destroyed after
completion, its value will be reduced, and taxes and tax increments will be reduced.
Repair, restoration or replacement of the Project may not occur, may occur after only a
substantial time delay, or may involve property with a lower value than the Project, all of
which would reduce taxes and tax increments.
3.Change in Use to Tax-Exempt. The Project could be acquired by a party
that devotes it to a use which causes the property to be exempt from real property
taxation. Taxes and tax increments would then cease.
4.Depreciation. The Project could decline in value due to changes in the
market for such property or due to the decline in the physical condition of the property.
Lower market valuation will lead to lower taxes and lower tax increments.
5.Non-payment of Taxes. If the property owner does not pay property taxes,
either in whole or in part, the lack of taxes received will cause a lack of tax increments.
The Minnesota system of collecting delinquent property taxes is a lengthy one that could
result in substantial delays in the receipt of taxes and tax increments, and there is no
assurance that the full amount of delinquent taxes would be collected. Amounts
distributed to taxing jurisdictions upon a sale following a tax forfeiture of the property are
not tax increments.
6.Reductions in Taxes Levied. If property taxes are reduced due to
decreased municipal levies, taxes and tax increments will be reduced. Reasons for such
reduction could include lower local expenditures or changes in state aid to municipalities.
For instance, in 2001 the Minnesota Legislature enacted an education funding reform that
involved the state increasing school aid in lieu of the local general education levy (a
component of school district tax levies).
D- 9
BR291-422-864836.v67
7.Reductions in Tax Capacity Rates. The taxable value of real property is
determined by multiplying the market value of the property by a tax capacity rate. Tax
capacity rates vary by certain categories of property; for example, the tax capacity rates
for residential homesteads are currently less than the tax capacity rates for commercial
and industrial property. In 2001 the Minnesota Legislature enacted property tax reform
that lowered various tax capacity rates to “compress” the difference between the tax
capacity rates applicable to residential homestead properties and commercial and
industrial properties.
8.Changes to Local Tax Rate. The local tax rate to be applied in the tax
increment financing district is the lower of the current local tax rate or the original local
tax rate for the tax increment financing district. In the event that the Current Local Tax
Rate is higher than the Original Local Tax Rate, then the “excess” or difference that comes
about after applying the lower Original Local Tax Rate instead of the Current Local Tax
Rate is considered “excess” tax increment and is distributed by Hennepin County to the
other taxing jurisdictions and such amount is not available to the EDA as tax increment.
9.Legislation. The Minnesota Legislature has frequently modified laws
affecting real property taxes, particularly as they relate to tax capacity rates and the
overall level of taxes as affected by state aid to municipalities.
10.Affordable Housing Declaration. The TIF District will cease to qualify as
a housing tax increment financing district and the TIF Note will terminate if the Project
ceases to be operated in accordance with the Declaration required by and defined in the
TIF Assistance Agreement defined below.
F.The Note Holder acknowledges that the Note was issued as part of a TIF
Assistance Agreement between the EDA and the Developer dated ______, 2023 (“TIF Assistance
Agreement”), and that the EDA has the right to suspend payments under this Note and/or
terminate the Note upon an Event of Default under the TIF Assistance Agreement.
G.The Note Holder acknowledges that the EDA makes no representation about the
tax treatment of, or tax consequences from, the Note Holder’s acquisition of [the Note]/[an
interest in the Note as collateral for the Loan].
WITNESS our hand this ___ day of _______, 20__.
Note Holder:
_________________________
By ________________________
Name: __________________
Its ________________________
D-10
BR291-422-864836.v67
EXHIBIT E
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION OF RESTRICTIVE COVENANTS, dated ________, 2023 (the
“Declaration”), by WANGSTAD COMMONS LLLP, a Minnesota limited liability limited
partnership (the “Developer”), is given for the benefit of the ECONOMIC DEVELOPMENT
AUTHORITY OF BROOKLYN CENTER, MINNESOTA,a public body corporate and politic
organized under the laws of the State of Minnesota (the “EDA”).
RECITALS
WHEREAS, the EDA and the Developer entered into that certain TIF Assistance
Agreement, dated ________, 2023 (the “TIF Agreement”); and
WHEREAS, pursuant to the TIF Agreement, the Developer is obligated to cause
construction of an approximately 54-unit affordable multifamily rental housing facility with a
combination of surface level and underground parking spaces, and all related amenities and
improvements, to be owned and operated by the Developer (the “Project”) on the property
described in EXHIBIT A attached hereto (the “Development Property”), and to cause compliance
with certain affordability covenants described in Section 3.3 of the TIF Agreement; and
WHEREAS, Section 3.3 of the TIF Agreement requires that the Developer cause to be
executed an instrument in recordable form substantially reflecting the covenants set forth in Section
3.4 of the TIF Agreement; and
WHEREAS, the Developer intends, declares, and covenants that the restrictive covenants
set forth herein will be and are covenants running with the Development Property for the term
described herein and binding upon all subsequent owners of the Development Property for the term
described herein, and are not merely personal covenants of the Developer; and
WHEREAS, capitalized terms in this Declaration have the meanings provided in the TIF
Agreement unless otherwise defined herein.
NOW, THEREFORE, in consideration of the promises and covenants hereinafter set forth,
and of other valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Developer agrees as follows:
1.Term of Restrictions.
(a)Qualified Project Period. The term of the Occupancy Restrictions set forth in
Section 3 of this Declaration will commence on the date a certificate of occupancy is received from
the City of Brooklyn Center, Minnesota (the “City”) for all residential units on the Development
E- 1
BR291-422-864836.v67
Property (the “Commencement Date”) and continue through the Termination Date defined below
(the “Qualified Project Period”).
(b)Termination of Declaration. This Declaration shall terminate upon the date the TIF
District is terminated pursuant to Section 469.176, Subd. 1b(a)(4) of the TIF Act or otherwise in
accordance with the TIF Act (the “Termination Date”). The Developer acknowledges, on behalf of
itself and its successors and assigns that, upon any termination of this Declaration prior to the
payment in full of the TIF Note, the EDA will terminate the TIF Note.
(c)Removal from Real Estate Records. After the Termination Date of this Declaration,
the EDA will, upon request by the Developer or its assigns, file any document appropriate to
remove this Declaration from the real estate records of Hennepin County, Minnesota.
2.Project Restrictions.
(a)The Developer represents, warrants, and covenants that all leases of residential units
to Qualifying Tenants (as defined in Section 3(a) hereof) will contain clauses, among others,
wherein each individual lessee:
(1)Certifies the accuracy of the statements made in its application and
Eligibility Certification (as defined in Section 3(b) hereof); and
(2)Agrees that the family income at the time the lease is executed will
be deemed a substantial and material obligation of the lessee’s tenancy; that the
lessee will comply promptly with all requests for income and other information
relevant to determining low or moderate income status from the Developer or the
EDA, and that the lessee’s failure or refusal to comply with a request for information
with respect thereto will be deemed a violation of a substantial obligation of the
lessee’s tenancy.
(b)The Developer will permit any duly authorized representative of the EDA to inspect
the books and records of the Developer pertaining to the income of Qualifying Tenants residing in
the Project.
3.Occupancy Restrictions. The Developer represents, warrants, and covenants that:
Qualifying Tenants. Throughout the Qualified Project Period, the Project(a)
shall satisfy the following income and rent restrictions (collectively, the “Occupancy
Restrictions”):
(1)30/30 Qualifying Tenants. At least 16 of the residential units in the
Project shall be occupied (or treated as occupied as provided herein) or held
vacant and available for occupancy by persons or families whose combined
adjusted income is 30% or less of Median Income and rents (including utilities
paid by tenant) for such units shall not exceed 30% of 30% of Median Income
(“30/30 Qualifying Tenants”), provided, however, that for said 16 units, if the
Housing Support is reduced or eliminated, such units may be occupied or
E- 2
BR291-422-864836.v67
available for occupancy by persons or families whose income does not exceed
50% of the Median Income, and rents (including utilities paid by tenant) for such
units shall not exceed 30% of 50% of the Median Income.
(2)50/30 Qualifying Tenants. At least 11 of the residential units in the
Project shall be occupied (or treated as occupied as provided herein) by persons or
families whose income is 50% or less of Median Income and rents (including
utilities paid by tenant) for such units shall not exceed 30% of 30% of Median
Income (“50/30 Qualifying Tenants”), provided, however, that for said 11 units, if
the Housing Support is reduced or eliminated, rents (including utilities paid by
tenant) for such units shall not exceed 30% of 50% of the Median Income.
(3)50/50 Qualifying Tenants. At least 1 of the resident units in the
Project shall be occupied (or treated as occupied as provided herein) by persons or
families whose income is 50% or less of Median Income and rents (including
utilities paid by tenant) for such units shall not exceed 30% of 50% of Median
Income (“50/50 Qualifying Tenants”).
(4)60/50 Qualifying Tenants. At least 15 of the residential units in the
Project shall be occupied (or treated as occupied as provided herein) by persons or
families whose income is 60% or less of Median Income and rents (including
utilities paid by tenant) for such units shall not exceed 30% of 50% of Median
Income (“60/50 Qualifying Tenants”).
(5
(4)60/60 Qualifying Tenants. At least 1126 of the residential units in
the Project shall be occupied by persons or families whose income is 60% or less
of Median Income and rents (including utilities paid by tenant) for such units shall
not exceed 30% of 60% of Median Income (“60/60 Qualifying Tenants”).
(b)Additional Definitions.
(1)“Median Income” means the area-wide median family income for
the standard metropolitan statistical area which includes the City, as that figure is
determined and announced from time to time by HUD, as adjusted for family size
for the applicable calendar year.
(2)“Qualifying Tenants” means collectively, as applicable, 30/30
Qualifying Tenants, 50/30 Qualifying Tenants, 50/50 Qualifying Tenants,60/50
Qualifying Tenants and 60/60 Qualifying Tenants; for purposes of this definition,
the occupants of a residential unit will not be deemed to be Qualifying Tenants if
all the occupants of such residential unit at any time are “students,” as defined in
Section 152(f)(2) of the Internal Revenue Code of 1986, as amended (the “Code”),
not entitled to an exemption under the Code. The determination of whether an
individual or family is of low or moderate income will be made at the time the
E- 3
BR291-422-864836.v67
tenancy commences and on an ongoing basis thereafter, determined at least
annually. If during their tenancy a Qualifying Tenant’s income exceeds 140% of the
maximum income qualifying as low or moderate income for a family of its size, the
next available residential unit (determined in accordance with the Code and
applicable regulations) (the “Next Available Unit Rule”) must be leased to a
Qualifying Tenant or held vacant and available for occupancy by a Qualifying
Tenant qualifying as to the applicable income level. If the Next Available Unit Rule
is violated, the affected unit will not continue to be treated as occupied by a
Qualifying Tenant.
(c)Certification of Tenant Eligibility. As a condition to initial and continuing
occupancy, each person who or household that is intended to be a Qualifying Tenants will be
required annually to sign and deliver to the Developer a Certification of Tenant Eligibility
substantially in the form attached as Exhibit B hereto, or in any other form as may be approved by
the EDA (the “Eligibility Certification”), in which the prospective Qualifying Tenant certifies as to
having a qualifying low or moderate income at the applicable level. In addition, the Qualifying
Tenant will be required to provide whatever other information, documents, or certifications are
deemed necessary by the EDA to substantiate the Eligibility Certification, on an ongoing annual
basis, and to verify that the tenant continues to be a Qualifying Tenant within the meaning of
Section 3(a) hereof. Eligibility Certifications will be maintained for the Qualified Project Period on
file by the Developer with respect to each Qualifying Tenant who resides in a residential unit or
resided therein during the Qualified Project Period.
(d)Lease. The form of lease to be utilized by the Developer in renting any residential
units in the Project to any person who is intended to be a Qualifying Tenant will provide for
termination of the lease and consent by the person to immediate eviction for failure to qualify as a
Qualifying Tenant as a result of any material misrepresentation made by the person with respect to
the Eligibility Certification. The Developer covenants and agrees that during the Qualified Project
Period it will not increase the rent charged to any tenant of a rental unit within the Project during
such tenant’s lease term and, at any rate, will not increase the rent charged to any tenant more than
once in any 12-month period.
(e)Annual Report. The Developer covenants and agrees that during the term of this
Declaration, it will prepare and submit to the EDA on or before July 1 of each year, a certificate
substantially in the form set forth in EXHIBIT C attached hereto, executed by the Developer, (a)
identifying the tenancies and the dates of occupancy (or vacancy) for all Qualifying Tenants in the
Project, including the percentage of the residential units of the Project which were occupied by
Qualifying Tenants (or held vacant and available for occupancy by Qualifying Tenants) at all times
during the year preceding the date of the certificate; (b) describing all transfers or other changes in
ownership of the Project or any interest therein; and (c) stating, that to the best knowledge of the
person executing the certificate after due inquiry, all the residential units were rented or available
for rental on a continuous basis during the year to members of the general public and that the
Developer was not otherwise in default under this Declaration during the year.
(f)Notice of Non-Compliance. The Developer will immediately notify the EDA if at
any time during the term of this Declaration fewer dwelling units in the Project than the percentages
E- 4
BR291-422-864836.v67
set forth in Section 3(a) above are occupied or available for occupancy as required by the terms of
this Declaration.
(g)Section 8 Housing. The Developer shall accept tenants who are recipients of
federal certificates for rent subsidies pursuant to the existing program under Section 8 of the
United States Housing Act of 1937, as amended, codified as 42 U.S.C. Sections 1401 et seq., or
its successor. During the term of this Declaration, the Developer shall not adopt any policies
specifically excluding rental to tenants holding Section 8 certificate/voucher holders. For
certificate/voucher holders, the Developer shall restrict rents to an amount which does not exceed
the rent permitted, assuming the total tenant payment does not exceed 40% of the household’s
monthly adjusted income.
4.Transfer Restrictions. Except as provided in Section 1(b) above, the Developer
covenants and agrees that the Developer will cause or require as a condition precedent to any
conveyance, transfer, assignment, or any other disposition of the Project prior to the termination of
the Occupancy Restrictions provided herein (the “Transfer”) that the transferee of the Project
pursuant to the Transfer assume in writing, in a form acceptable to the EDA, all duties and
obligations of the Developer under this Declaration, including this Section, in the event of a
subsequent Transfer by the transferee prior to expiration of the Occupancy Restrictions provided
herein (the “Assumption Agreement”). The Developer will deliver the Assumption Agreement to
the EDA prior to the Transfer.
5.Enforcement.
(a)The Developer will permit, during normal business hours and upon reasonable
notice, any duly authorized representative of the EDA to inspect any books and records of the
Developer regarding the Project with respect to the incomes of Qualifying Tenants.
(b)The Developer will submit any other information, documents or certifications
requested by the EDA which the EDA deems reasonably necessary to substantiate the Developer’s
continuing compliance with the provisions specified in this Declaration.
(c)The Developer acknowledges that the primary purpose for requiring compliance by
the Developer with the restrictions provided in this Declaration is to ensure compliance of the
property with the housing affordability covenants set forth in Section 3.3 of the TIF Agreement, and
by reason thereof, the Developer, in consideration for assistance provided by the EDA under the
TIF Agreement that makes possible the construction of the Project on the Development Property,
hereby agrees and consents that the EDA will be entitled for any breach of the provisions of this
Declaration, and in addition to all other remedies provided by law or in equity, to enforce specific
performance by the Developer of its obligations under this Declaration in a state court of competent
jurisdiction. The Developer hereby further specifically acknowledges that the EDA cannot be
adequately compensated by monetary damages in the event of any default hereunder.
(d)The Developer understands and acknowledges that, in addition to any remedy set
forth herein for failure to comply with the restrictions set forth in this Declaration, the EDA may
exercise any remedy available to it under Article V of the TIF Agreement in accordance with the
terms thereof.
E- 5
BR291-422-864836.v67
6.Indemnification. The Developer hereby indemnifies, and agrees to defend and hold
harmless, the EDA from and against all liabilities, losses, damages, costs, expenses (including
attorneys’ fees and expenses), causes of action, suits, allegations, claims, demands, and judgments
of any nature arising from the consequences of a legal or administrative proceeding or action
brought against them, or any of them, on account of any failure by the Developer to comply with
the terms of this Declaration, or on account of any representation or warranty of the Developer
contained herein being untrue.
7.Agent of the EDA. The EDA will have the right to appoint an agent to carry out any
of its duties and obligations hereunder and will inform the Developer of any agency appointment by
written notice.
8.Compliance with Local Codes. Developer agrees to keep all units in compliance
with all applicable local codes including state and local building codes to ensure the units are
decent, safe, and sanitary at all times.
9 Equal Opportunity, Affirmative Marketing.Developer and its agents must adhere
to Equal Opportunity, Affirmative Marketing, and Fair Housing practices in all marketing efforts,
eligibility determinations and other transactions. The Equal Housing Opportunity logo or statement
(“We do business in accordance with the Federal Fair Housing Law. It is illegal to discriminate
against any person because of race, color, religion, sex, handicap, familial status, or national
origin.”) must be used in all advertising of vacant units.
8.Severability. The invalidity of any clause, part or provision of this Declaration will
not affect the validity of the remaining portions thereof.
9.Notices. All notices to be given pursuant to this Declaration must be in writing and
will be deemed given when mailed by certified or registered mail, return receipt requested, to the
parties hereto at the addresses set forth below, or to any other place as a party may from time to
time designate in writing. The Developer and the EDA may, by notice given hereunder, designate
any further or different addresses to which subsequent notices, certificates, or other
communications are sent. The initial addresses for notices and other communications are as
follows:
E- 6
BR291-422-864836.v67
To the EDA:Economic Development Authority of Brooklyn Center, Minnesota
6301 Shingle Creek Parkway
Brooklyn Center, MN 55430
Attn: Executive Director
To the Developer:Wangstad Commons LLLP
510 Brunson Street Suite 100
St. Paul, MN 55130
Attn: Johnny Opara
With a copies to:Winthrop & Weinstine, P.A.
225 S. 6th Street, Suite 3500
Minneapolis, MN 55402
Attn: Jon L. Peterson, Esq.
and
U.S. Bancorp Community Development
Corporation
1307 Washington Avenue, Suite 300
Mail Code: SL MO RMCD
St. Louis, MO 63103
USB Project No: 28763
Attn.: Director of LIHTC Asset Management
and
Jill Goldstein, Esq.
Kutak Rock LLP
1650 Farnam Street
Omaha, NE 68102
10.Governing Law. This Declaration is governed by the laws of the State of Minnesota
and, where applicable, the laws of the United States of America.
11.Attorneys’ Fees. In case any action at law or in equity, including an action for
declaratory relief, is brought against the Developer to enforce the provisions of this Declaration, the
Developer agrees to pay the reasonable attorneys’ fees and other reasonable expenses paid or
incurred by the EDA in connection with the action.
12.Declaration Binding. This Declaration and the covenants contained herein will run
with the real property comprising the Project and will bind the Developer and its successors and
assigns and all subsequent owners of the Project or any interest therein, and the benefits will inure
to the EDA and its successors and assigns until the Termination Date of this Declaration as
provided in Section 1(b) hereof.
E- 7
BR291-422-864836.v67
IN WITNESS WHEREOF, the Developer has caused this Declaration of Restrictive
Covenants to be signed by its respective duly authorized representatives, as of the day and year first
written above.
WANGSTAD COMMONS LLLP,
a Minnesota limited liability limited partnership
By: Wangstad Commons GP, LLC,
a Minnesota limited liability company
Its: General Partner
By: JO Companies, LLC,
a Minnesota limited liability company
Its: Sole Member
By:__________________________
Name: Johnny Opara
Its: Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF __________)
The foregoing instrument was acknowledgment before me this ____ day of _____________,
2023, by Johnny Opara, the manager of JO Companies, LLC, a Minnesota limited liability
company, the sole member of Wangstad Commons GP, LLC, a Minnesota limited liability
company, the general partner of Wangstad Commons LLLP, a Minnesota limited liability limited
partnership, on behalf of said limited liability limited partnership.
________________________________
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Kennedy & Graven, Chartered (JSB)
150 S 5th St Ste 700
Minneapolis, MN 55402
(612) 337-9300
E- 8
BR291-422-864836.v67
This Declaration of Restrictive Covenants is acknowledged and consented to by:
ECONOMIC DEVELOPMENT AUTHORITY OF
BROOKLYN CENTER, MINNESOTA
By
Its Executive Director
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _____________, 2023, by
_____________________________, the Executive Director of the ECONOMIC DEVELOPMENT
AUTHORITY OF BROOKLYN CENTER, MINNESOTA a public body corporate and politic
organized and existing under the laws of the State of Minnesota, on behalf of the EDA.
Notary Public
E- 9
BR291-422-864836.v67
EXHIBIT A TO DECLARATION OF RESTRICTIVE COVENANTS
Legal Description of Development Property
The property located in the City of Brooklyn Center, Hennepin County, Minnesota described as:
Parcel 1
6017 Brooklyn Boulevard
Lot 1, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0049
Parcel 2
6101 Brooklyn Boulevard
Lot 2, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0050
Parcel 3
3600 61st Avenue N.
Lot 3, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0051
Parcel 4
3606 61st Avenue N.
Lot 4, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0052
E-10
BR291-422-864836.v67
EXHIBIT B TO DECLARATION OF RESTRICTIVE COVENANTS
Certification of Tenant Eligibility
TENANT INCOME CERTIFICATION
Initial Certification Recertification Other
_______________
Effective Date: _________________________
Move-in Date: __________________________
(MM/DD/YY): _________________________
PART I. DEVELOPMENT DATA
Property Name:
Wangstad Commons
Address:
___________________, Brooklyn Center, Minnesota
County:
Hennepin
Unit Number: ________________
BIN #:
_______________
# Bedrooms:
___________
PART II. HOUSEHOLD COMPOSITION
HH
Br #Last Name
First Name & Middle
Initial
Relationship to
Head of
Household
Date of Birth
(MM/DD/YY)
F/T Student
(Y or N)
Social Security
or Alien Reg.
No.
1 HEAD
2
3
4
5
6
PART III. GROSS ANNUAL INCOME (USE ANNUAL AMOUNTS)
HH
Br #
(A)
Employment or Wages
(B)
Soc. Security / Pensions
(C)
Public Assistance
(D)
Other Income
TOTAL $$$$
Add totals from (A) through (D) above TOTAL INCOME (E):$
E-11
BR291-422-864836.v67
PART IV. INCOME FROM ASSETS
HH Mbr#(F)
Type of Asset
(G)
C/I
(H)
Cash Value of Asset
(I)
Annual Income from Asset
TOTALS:$$
Enter Column (H) Total Passbook Rate
if over $5,000 $________________ x 2.00 % = (J) Imputed Income
Enter the greater of the total column I, or J: imputed income TOTAL INCOME FROM ASSETS (K)
$
$
(L) Total Annual Household Income from all sources [Add (E) + (K)]$
HOUSEHOLD CERTIFICATION & SIGNATURES
The information on this form will be used to determine maximum income eligibility. I/we have provided for each
person(s) set forth in Part II acceptable verification of current anticipated annual income. I/we agree to notify the
landlord immediately upon any member of the household moving out of the unit or any new member moving in.
I/we agree to notify the landlord immediately upon any member becoming a full-time student.
Under penalties of perjury, I/we certify that the information presented in this Certification is true and accurate to the
best of my/our knowledge and belief. The undersigned further understands that providing false representations
herein constitutes an act of fraud. False, misleading or incomplete information may result in the termination of the
lease agreement.
_________________________
Signature
____________________
(Date)
_________________________
Signature
____________________
(Date)
_________________________
Signature
____________________
(Date)
_________________________
Signature
____________________
(Date)
PART V. DETERMINATION OF INCOME ELIGIBILITY
TOTAL ANNUAL HOUSEHOLD
INCOME FROM ALL SOURCES
From Item (L) on page 1
Current Income Limit per Family Size: $
_________________
Household Income at Move-in
$__________________
Household Meets
Income Restriction
at:
60% 50%
40% 30%
___%
RECERTIFICATION ONLY:
Current Income Limit x 140%
$
__________________________________
Household income exceeds 140% at
recertification:
Yes No
Household Size at Move-in:
_____________
E-12
BR291-422-864836.v67
PART VI. RENT
Tenant Paid Rent $ _________________
Utility Allowance $ _________________
GROSS RENT FOR UNIT:
Tenant paid rent plus Utility
Allowance and other non-optional
charges
Maximum Rent Limit for this unit: $ _____________
Rent Assistance: $ ______________________
Other non-optional charges:$ ____________________
Unit Meets Rent Restriction at:
60% 50% 30% ___%
PART VII. STUDENT STATUS
ARE ALL OCCUPANTS FULL-TIME
STUDENTS?
yes no
If yes, enter student explanation**
(also attach documentation)
Student explanation:
1. TANF assistance
2. Job training program
3. Single parent/dependent child
4. Married/joint return*
*Exception for married/joint return is the only exception available for units necessary to qualify tax-exempt bonds.
PART VIII. PROGRAM TYPE
Mark the program(s) listed below (a. through e.) for which this household’s unit will be counted toward the property’s occupancy
requirements. Under each program marked, indicate the household’s income status as established by this certification/recertification
a. Tax Credit b. HOME c. Tax Exempt d. AHDP e. ____________
(Name of Program)
See Part V above.Income Status Income Status Income Status Income Status
≤ 50% AMGI
≤ 60% AMGI
≤ 80% AMGI
≤ 0I **
50% AMGI
60% AMGI
80% AMGI
0I **
≤ 50% AMGI
≤ 80% AMGI
≤ 0I **
__________
__________
≤ 0I **
** Upon recertification, household was determined over income (OI) according to eligibility requirements of the program(s) marked
above.
E-13
BR291-422-864836.v67
SIGNATURE OF OWNER / REPRESENTATIVE
Based on the representations herein and upon the proofs and documentation required to be submitted, the
individual(s) named in Part II of this Tenant Income Certification is/are eligible under the Declaration of Restrictive
Covenants, to live in a unit in this Project.
________________________________________________________________
SIGNATURE OF OWNER / REPRESENTATIVE DATE
Enter
1-4
$
INSTRUCTIONS FOR COMPLETING
TENANT INCOME CERTIFICATION
This form is to be completed by the owner or an authorized representative.
Part I – Development Data
Check the appropriate box for Initial Certification (move-in), Recertification (annual
recertification), or Other. If Other, designate the purpose of the recertification (i.e., a unit
transfer, a change in household composition, or other state-required recertification).
Move-in Date Enter the date the tenant has or will take occupancy of the unit.
Effective Date Enter the effective date of the certification. For move-in, this should be
the move-in date. For annual recertification, this effective date should be
no later than one year from the effective date of the previous
(re)certification.
Property Name Enter the name of the development.
County Enter the county (or equivalent) in which the building is located.
BIN #Enter the Building Identification Number (BIN) assigned to the building
(from IRS Form 8609).
Address Enter the unit number.
Unit Number Enter the unit number.
# Bedrooms Enter the number of bedrooms in the unit.
Part II – Household Composition
List all occupants of the unit. State each household member’s relationship to the head of the
household by using one of the following coded definitions:
H Head of household S Spouse
A Adult co-tenant O Other family member
C Child F Foster child
L Live-in caretaker N None of the above
Enter the date of birth, student status, and Social Security number or alien registration number for
each occupant.
If there are more than seven occupants, use an additional sheet of paper to list the remaining
household members and attach it to the certification.
E-14
BR291-422-864836.v67
Part III – Annual Income
See HUD Handbook 4350.3 for complete instructions on verifying and calculating income,
including acceptable forms of verification.
From the third-party verification forms obtained from each income source, enter the gross
amount anticipated to be received for the 12 months from the effective date of the
(re)certification. Complete a separate line for each income-earning member. List the respective
household member number from Part II.
Column (A)Enter the annual amount of wages, salaries, tips, commissions, bonuses,
and other income from employment; distributed profits and/or net income
from a business.
Column (B)Enter the annual amount of Social Security, Supplemental Security
Income, pensions, military retirement, etc.
Column (C)Enter the annual amount of income received from public assistance (i.e.,
TANF, general assistance, disability, etc.)
Column (D)Enter the annual amount of alimony, child support, unemployment
benefits, or any other income regularly received by the household.
Row (E)Add the totals from columns (A) through (D) above. Enter this amount.
Part IV – Income from Assets
See HUD Handbook 4350.3 for complete instructions on verifying and calculating income from
assets, including acceptable forms of verification.
From the third-party verification forms obtained from each asset source, list the gross amount
anticipated to be received during the 12 months from the effective date of the certification. List
the respective household member number from Part II and complete a separate line for each
member.
Column (F)List the type of asset (i.e., checking account, savings account, etc.)
Column (G)Enter C (for current, if the family currently owns or holds the asset), or I
(for imputed, if the family has disposed of the asset for less than fair
market value within two years of the effective date of (re)certification).
Column (H)Enter the cash value of the respective asset.
Column (I)Enter the anticipated annual income from the asset (i.e., savings account
balance multiplied by the annual interest rate).
E-15
BR291-422-864836.v67
TOTALS Add the total of Column (H) and Column (I), respectively.
If the total in Column (H) is greater than $5,000, you must do an imputed calculation of asset
income. Enter the Total Cash Value, multiply by 2% and enter the amount in (J), Imputed
Income.
Row (K)Enter the Greater of the total in Column (I) or (J)
Row (L)Total Annual Household Income from All Sources Add (E) and (K) and
enter the total
HOUSEHOLD CERTIFICATION AND SIGNATURES
After all verifications of income and/or assets have been received and calculated, each household
member age 18 or older must sign and date the Tenant Income
Certification. For move-in, it is recommended that the Tenant Income
Certification be signed no earlier than five days prior to the effective date
of the certification.
Part V – Determination of Income Eligibility
Total Annual Household Enter the number from item (L).
Income from all sources
Current Income Limit per Enter the Current Move-in Income Limit for the household size.
Family Size
Household income at move-in For recertifications only. Enter the household income from
the
Household size at move-in move-in certification. On the adjacent line, enter the number of
household members from the move-in certification.
Household Meets Income Check the appropriate box for the income restriction that the
Restriction household meets according to what is required by the set-aside(s) for the
project.
Current Income Limit x 140%For recertification only. Multiply the Current Maximum
Move-in Income Limit by 140% and enter the total. Below, indicate
whether the household income exceeds that total. If the Gross Annual
Income at recertification is greater than 140% of the current income limit,
then the available unit rule must be followed.
Part VI – Rent
E-16
BR291-422-864836.v67
Tenant Paid Rent Enter the amount the tenant pays toward rent (not including rent assistance
payments such as Section 8).
Rent Assistance Enter the amount of rent assistance, if any.
Utility Allowance Enter the utility allowance. If the owner pays all utilities, enter zero.
Other non-optional Enter the amount of non-optional charges, such as mandatory garage rent,
charges storage lockers, charges for services provided by the development, etc.
Gross Rent for Unit Enter the total of Tenant Paid Rent plus Utility Allowance and other
non-optional charges.
Maximum Rent Enter the maximum allowable gross rent for the unit.
Limit for this unit
Unit Meets Rent Check the appropriate rent restriction that the unit meets according to what
is
Restriction at __%required by the set-aside(s) for the project.
Part VII – Student Status
If all household members are full-time* students, check “yes.” If at least one household member
is not a full-time student, check “no.”
If “yes” is checked, the appropriate exemption must be listed in the box to the right. If none of
the exemptions apply, the household may be ineligible to rent the unit
provided that up to 8 income qualified residential units may be marketed
to students even if all of the occupants of such unit are “students,” as
defined in Section 152(f)(2) of the Internal Revenue Code of 1986, as
amended (the “Code”) who are not entitled to an exemption under the
Code.
* Full time is determined by the school the student attends.
Part VIII – Program Type
Mark the program(s) for which this unit will be counted toward the property’s occupancy
requirements. Under each program marked, indicate the household’s
income status as established by this certification/recertification. If the
property does not participate in the HOME, Tax-Exempt Bond, Affordable
Housing Disposition, or other housing program, leave those sections
blank.
Tax Credit See Part V above.
E-17
BR291-422-864836.v67
HOME If the property participates in the HOME program and the unit this
household will occupy will count towards the HOME program set-asides,
mark the appropriate box indicating the household’s designation.
Tax Exempt If the property participates in the Tax-Exempt Bond program, mark the
appropriate box indicating the household’s designation.
AHDP If the property participates in the Affordable Housing Disposition Program
(AHDP), and this household’s unit will count towards the set-aside
requirements, mark the appropriate box indicating the household’s
designation.
Other If the property participates in any other affordable housing program,
complete the information as appropriate.
SIGNATURE OF OWNER / REPRESENTATIVE
It is the responsibility of the owner or the owner’s representative to sign and date this document
immediately following execution by the resident(s).
The responsibility of documenting and determining eligibility (including completing and signing
the Tenant Income Certification form) and ensuring such documentation is
kept in the tenant file is extremely important and should be conducted by
someone well-trained in affordable housing income compliance.
The responsibility for compliance with the Declaration of Restrictive Covenants lies with the
owner of the building(s) to which it applies.
E-18
BR291-422-864836.v67
EXHIBIT C
TO DECLARATION OF RESTRICTIVE COVENANTS
Certificate of
Continuing Program Compliance
Date:___________________
The following information with respect to the Project located at __________________,
Brooklyn Center, Minnesota (the “Project”), is being provided by Wangstad Commons LLLP (the
“Owner”) to the Economic Development Authority of Brooklyn Center, Minnesota (the “City”),
pursuant to that certain Declaration of Restrictive Covenants, dated _________, 2023 (the
“Declaration”), with respect to the Project. Any undefined terms used herein shall have the
meanings as defined in the Declaration.
(A)The total number of residential units which are available for occupancy is
54. The total number of these units occupied is _________________. The total number
of these units occupied or held open for occupancy by 30/30 Qualifying Tenants is
_________________ (at least 16 units); the total number of these units occupied or held
open for occupancy by 50/30 Qualifying Tenants is _________________ (at least 11
units); total number of these units occupied or held open for occupancy by 50/50
Qualifying Tenants is _________________ (at least 1 unit); total number of these units
occupied or held open for occupancy by 60/50 Qualifying Tenants is
_________________ (at least 15 units); and the total number of these units occupied or
held open for occupancy by 60/60 Qualifying Tenants is _________________ (at least
1126 units).
(B)The vacancy rate at the Project in the last 12 months is ___%.
(C)The following residential units which are included in (D) below, have been
re-designated as residential units for Qualifying Tenants since _______________, 20___,
the date on which the last “Certificate of Continuing Program Compliance” was filed with
the EDA by the Owner:
Unit
Number
Previous Designation
of Unit (if any)
Replacing
Unit Number
_____________________________________________
_____________________________________________
(D)All of the residential units in the Project are considered to be occupied by
Qualifying Tenants based on the information set forth below:
Unit
Number
Last
Name
of
Number
of
Persons
Number
of
Bedrooms
Total
Adjusted
Gross
Income
Qualificatio
Rent
Qualificatio Monthly
Date of
Initial
Date
Vacated
and Held
E-19
BR291-422-864836.v67
Tenant Residing
in the
Unit
Income n Level
(30%, 50%,
60%)
n Level
(30%, 50%,
60%)
Rent Occupancy for
Qualifying
Tenants, if
Applicable
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20*
*Expand to 54 rows.
(E)The Owner has obtained a “Certification of Tenant Eligibility,” in the form
provided as EXHIBIT B to the Declaration, from each Qualifying Tenant named in (D)
above, and each such Certificate is being maintained by the Owner in its records with
respect to the Project. Attached hereto is the most recent “Certification of Tenant
Eligibility” for each Tenant named in (D) above who signed such a Certification since
______________, 20___, the date on which the last “Certificate of Continuing Program
Compliance” was filed with the EDA by the Owner.
(F)In renting the residential units in the Project, the Owner has not given
preference to any particular group or class of persons (except for persons who qualify as
Qualifying Tenants); and none of the units listed in (D) above have been rented for
occupancy entirely by students who are not entitled to an exemption under the Code. All of
the residential units in the Project have been rented pursuant to a written lease, and the term
of each lease is at least 12 months.
E-20
BR291-422-864836.v67
(G)The information provided in this “Certificate of Continuing Program
Compliance” is accurate and complete, and no matters have come to the attention of the
Owner which would indicate that any of the information provided herein, or in any
“Certification of Tenant Eligibility” obtained from the Tenants named herein, is inaccurate
or incomplete in any respect.
(H)The following transfers or other changes in ownership of the Project or any
interest therein have occurred in the last 12 months: [None] or
[describe___________________]
(I)To the best knowledge of the person executing this certificate after due
inquiry, all the residential units were rented or available for rental on a continuous basis
during the year to members of the general public.
(J)The Project is in continuing compliance with the Declaration.
IN WITNESS WHEREOF, I have hereunto affixed my signature, on behalf of the Owner,
on ____________________, 20__.
WANGSTAD COMMONS LLLP,
a Minnesota limited liability limited partnership
By: Wangstad Commons GP, LLC,
a Minnesota limited liability company
Its: General Partner
By: JO Companies, LLC,
a Minnesota limited liability company
Its: Sole Member
By:__________________________
Name: Johnny Opara
Its: Manager
E-21
BR291-422-864836.v67
EXHIBIT F
PERMITTED ENCUMBRANCES
[INSERT]
F- 1
BR291-422-864836.v67
EXHIBIT G
CERTIFICATE OF COMPLETION OF PROJECT
__________, 20___
WHEREAS, the ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN
CENTER, MINNESOTA, a public body corporate and politic organized and existing under the
laws of the State of Minnesota (the “EDA”), and WANGSTAD COMMONS LLLP, a Minnesota
limited liability limited partnership (the “Developer”), have entered into a TIF Assistance
Agreement (the “TIF Assistance Agreement”), dated _________, 2023; and
WHEREAS, the TIF Assistance Agreement requires the Developer to construct a Project
(as that term is defined in the TIF Assistance Agreement);
WHEREAS, the Developer has constructed the Project in a manner deemed sufficient by
the EDA to permit the execution of this certification in accordance with Section 3.9 of the TIF
Assistance Agreement;
NOW, THEREFORE, this is to certify that the Developer has constructed the Project in
accordance with the TIF Assistance Agreement. The remaining covenants of the Developer
under the TIF Assistance Agreement are not intended to run with title to the Development
Property or bind successors in title to the Development Property.
G- 1
BR291-422-864836.v67
The EDA has, as of the date and year first above written, set its hand hereon.
ECONOMIC DEVELOPMENT
AUTHORITY OF BROOKLYN CENTER,
MINNESOTA
By ____________________________
Its Executive Director
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN)
The foregoing instrument was acknowledged before me this _____ day of ___________,
20__, by ____________________, the Executive Director of the Economic Development
Authority of Brooklyn Center, Minnesota, a public body corporate and politic organized and
existing under the laws of the State of Minnesota, on behalf of the EDA.
_________________________________
Notary Public
G- 2
BR291-422-864836.v67
EXHIBIT H
PROJECT SOURCES AND USES
H- 1
BR291-422-864836.v67
EXHIBIT I
DEED
(Top 3 inches reserved for recording data)
QUIT CLAIM DEED
DEED TAX DUE: $DATE: , 2023
(month/day/year)
FOR VALUABLE CONSIDERATION, Economic Development Authority of Brooklyn Center, Minnesota_____
(insert name of Grantor)
a body corporate and politic under the laws of Minnesota , (“Grantor”),
hereby conveys and quitclaims to Wangstad Commons LLLP.
(insert name of Grantee)
a limited liability limited partnership under the laws of Minnesota , (“Grantee”),
real property in Hennepin County, Minnesota, legally described as follows:
See attached Exhibit A
Check here if all or part of the described real property is Registered (Torrens)
together with all hereditaments and appurtenances and after acquired property and subject to the Right of Reentry
for Breach of Condition Subsequent in favor of Grantor which is described on Exhibit B to be filed immediately
following the filing of this Deed.
This Deed conveys after-acquired title.
Check applicable box:
The Seller certifies that the Seller does not
know of any wells on the described property.
A well disclosure certificate accompanies this
document.(If electronically filed, insert WDC
number: __________________).
I am familiar with the property described in this
instrument and I certify that the status and
number of wells on the described real property
have not changed since the last previously
filed well disclosure certificate.
Grantor
Economic Development Authority of Brooklyn Center,
Minnesota
(name of Grantor)
By:
(signature)
Its: Executive Director
(type of authority)
I- 1
BR291-422-864836.v67
State of Minnesota, County of Hennepin
This instrument was acknowledged before me on by
(month/day/year)
as Executive Director
(name of authorized signer)(type of authority)
of the Economic Development Authority of Brooklyn Center, Minnesota, a Minnesota body corporate and politic
(name of Grantor)(type of authority)
(Seal, if any)
(signature of notarial officer)
Title (and Rank):
My commission expires:
(month/day/year)
THIS INSTRUMENT W AS DRAFTED BY:
(insert name and address)
Kennedy & Graven, Chartered
150 South Fifth Street
Suite 700
Minneapolis, Minnesota 55402
TAX STATEMENTS FOR THE REAL PROPERTY
DESCRIBED IN THIS INSTRUMENT SHOULD BE
SENT TO:
Wangstad Commons LLLP
c/o JO Companies, LLC
510 Brunson Street Suite 100
Saint Paul, MN 55130
I- 2
BR291-422-864836.v67
EXHIBIT A
TO QUIT CLAIM DEED EXECUTED BY
THE ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER, MINNESOTA
GRANTOR, TO WANGSTAD COMMONS LLLP, GRANTEE.
LEGAL DESCRIPTION
The property located in the City of Brooklyn Center, Hennepin County, Minnesota described as:
Parcel 1
6017 Brooklyn Boulevard
Lot 1, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0049
Parcel 2
6101 Brooklyn Boulevard
Lot 2, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0050
Parcel 3
3600 61st Avenue N.
Lot 3, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0051
Parcel 4
3606 61st Avenue N.
Lot 4, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0052
I-A- 1
BR291-422-864836.v67
EXHIBIT B
TO QUIT CLAIM DEED EXECUTED BY
THE ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER,
MINNESOTA, GRANTOR, TO WANGSTAD COMMONS LLLP, GRANTEE
CONDITION SUBSEQUENT
The ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER,
MINNESOTA (the “Grantor”), is conveying the property described in the foregoing Quit Claim
Deed (the “Development Property”) to WANGSTAD COMMONS LLLP (the “Grantee”), subject
to a right of reentry for breach of condition subsequent in favor of the Grantor. The condition
subsequent, as set forth in Section 4.3 of that certain TIF Assistance Agreement, dated as of
_________, 2023, between the Grantor and the Grantee, (such agreement, as the same may be
modified or amended, the “TIF Assistance Agreement”) (capitalized terms utilized herein and not
separately defined shall have the meanings ascribed to them in the TIF Assistance Agreement) is
that barring any Unavoidable Delays, the Grantee shall have completed, by ______, 20__,
construction of footings and foundation of the Project on the Development Property in
accordance with the specifications for footings and foundation of the Project shown on Sheet
________ of the civil plans for the Project (as such term is defined in the TIF Assistance
Agreement) prepared by _____________ as Job No. ________________, forming a portion of
the Construction Plans approved by the City in connection with its approval of Site Plan
_________________ (the “Foundation Work”).
If the Grantee breaches the condition subsequent, and does not cure such breach within
the period and in the manner provided in the TIF Assistance Agreement, the Grantee shall
re-convey the Development Property to the Grantor. If the Grantee fails to re-convey the
Development Property to the Grantor, the Grantor may elect to exercise its right of reentry by
commencing an action in Hennepin County District Court to establish the breach of the condition
subsequent. If the Grantor exercises its right of reentry and establishes a breach of the condition
subsequent, title to and the right to possession of the Development Property and title to all
improvements located thereon reverts to the Grantor, and the Grantee is not entitled to any
compensation from the EDA or the Grantor for the value of the Development Property or any
improvements the Grantee has made thereto except as specifically provided in the TIF Assistance
Agreement.
The Grantee shall notify the Grantor when construction of the Foundation Work has been
completed and provide an Architect’s AIA certification thereof to the Grantor. The Grantor shall
promptly inspect the Project in order to determine whether the Foundation Work has been
constructed in conformity with in accordance with the specifications for footings and foundation
of the Project shown on Sheet ________ of the civil plans for the Project (as such term is defined
in the TIF Assistance Agreement) prepared by ______________ as Job No. _______, forming a
portion of the Construction Plans approved by the City in connection with its approval of Site
Plan ______________ (the “Foundation Requirements”). If the Grantor determines that the
Foundation Work has not been constructed in conformity with the Foundation Requirements, the
Grantor shall, within 14 days of the delivery of the Architect’s AIA certification, deliver a written
I-B- 1
BR291-422-864836.v67
statement to the Grantee indicating in adequate detail the specific respects in which the
Foundation Work has not been constructed in conformity with the Foundation Requirements and
Grantee shall promptly remedy such deficiencies with respect to the Foundation Work. Within
14 days of the delivery of the Architect’s AIA certification, if the Grantor determines that the
Foundation Work has been constructed in conformity with the Foundation Requirements, the
Grantor will furnish to the Grantee a Certificate of Release in the form set forth in the foregoing
Quit Claim Deed; provided that nothing in Section 4.3 of the TIF Assistance Agreement shall be
construed to relieve the Grantee of its obligations to receive any required inspection or approval
of such from any City department as otherwise required. The Grantee must record the Certificate
of Release set forth in the foregoing Quit Claim Deed in the proper County land records at its
expense.
The Certificate of Release issued for the Development Property shall conclusively satisfy
and terminate the right of reentry of the Grantor with respect to the Development Property in the
foregoing Quit Claim Deed or the TIF Assistance Agreement. The Grantee must record the
Certificate of Release in the proper County land records.
I-B- 2
BR291-422-864836.v67
EXHIBIT C
TO QUIT CLAIM DEED EXECUTED BY
THE ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER,
MINNESOTA, GRANTOR, TO WANGSTAD COMMONS LLLP, GRANTEE
CERTIFICATE OF RELEASE
Recitals.1.
Recital One. Wangstad Commons LLLP, a Minnesota limited liability limited
partnership (the “Grantee”) is the owner of the real property legally described in Exhibit
A attached hereto (the “Development Property”).
Recital Two. The Grantee acquired title to the Development Property subject to a
right of reentry for breach of conditions subsequent in favor of the Grantor (the “Right of
Reentry”) set forth in a deed from the Economic Development Authority of Brooklyn
Center, Minnesota (the “Grantor”) dated as of ________, 20__ and recorded in the office
of the Hennepin County Recorder/Registrar of Deeds on ____________ as Document No.
______________ (the “Deed”).
Recital Three. The Grantee is a party to a TIF Assistance Agreement between the
Grantor and the Grantee, dated as of ______, 2023 (such agreement, as the same may be
modified or amended, the “TIF Assistance Agreement”) (capitalized terms utilized herein
and not separately defined shall have the meanings ascribed to them in the TIF Assistance
Agreement).
Recital Four. Pursuant to the TIF Assistance Agreement the Grantee is obligated
to have completed, or caused to be completed, by _______, 20__, construction of the
Foundation Work in accordance with permits issued by the City of Brooklyn Center,
Minnesota;
Recital Five. The Grantor’s Right of Reentry would be triggered by the Grantee’s
failure to have completed, or caused to be completed, by _______, 20__, construction of
the Foundation Work.
Recital Six. The Grantee has represented to the Grantor that the Grantee has
completed, by _______, 20__, construction of the Foundation Work.
Certificate of Release. The Grantor hereby certifies that the Grantee has satisfied2.
its obligations with respect to completing, or causing to be completed, by _______, 20__,
construction of the Foundation Work. The Grantor further acknowledges and agrees that the
Development Property is released from the Right of Reentry.
I-C- 1
BR291-422-864836.v67
IN WITNESS WHEREOF, the Grantor has caused this certificate to be duly executed on
its behalf this ____ day of ____________, 20___.
ECONOMIC DEVELOPMENT
AUTHORITY OF BROOKLYN CENTER,
MINNESOTA
By
Its Executive Director
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me on this ____ day of
_____________, 20__ by ______________, the Executive Director of the Economic
Development Authority of Brooklyn Center, Minnesota, a public body corporate and politic
organized and existing under the laws of the State of Minnesota, on behalf of the EDA.
Notary Public
This document drafted by:
KENNEDY & GRAVEN, CHARTERED
150 South Fifth Street
Suite 700
Minneapolis, Minnesota 55402
I-C- 2
BR291-422-864836.v67
EXHIBIT A
TO CERTIFICATE OF RELEASE
LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY
The property located in the City of Brooklyn Center, Hennepin County, Minnesota described as:
Parcel 1
6017 Brooklyn Boulevard
Lot 1, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0049
Parcel 2
6101 Brooklyn Boulevard
Lot 2, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0050
Parcel 3
3600 61st Avenue N.
Lot 3, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0051
Parcel 4
3606 61st Avenue N.
Lot 4, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0052
I-B- 1
BR291-422-864836.v67
EXHIBIT J
FORM OF MINIMUM ASSESSMENT AGREEMENT
THIS AGREEMENT, dated as of this __ day of _________, 2023, is between the
Economic Development Authority of Brooklyn Center, Minnesota (the “EDA”) and Wangstad
Commons LLLP, a Minnesota limited liability limited partnership (the “Developer”).
WITNESSETH
WHEREAS, on or before the date hereof the EDA and Developer have entered into a
Development Assistance Agreement dated as of __________, 2023 (the “TIF Agreement”)
regarding certain real property located in the City of Brooklyn Center, Minnesota (the “City”) the
legal description of which is attached hereto as Exhibit A (the “Development Property”).
WHEREAS, it is contemplated that pursuant to said Agreement, the Developer will
undertake the construction of approximately 54 units of multifamily rental housing with at least
40% of the units occupied or held for occupancy by persons and families whose incomes do not
exceed 60% of area median income, a combination of surface level and underground parking
spaces, and all related amenities and improvements (altogether, the “Development”).
WHEREAS, the EDA and Developer desire to establish a minimum market value for the
Development Property and the improvements constructed or to be constructed thereon, pursuant
to Minnesota Statutes, Section 469.177.
WHEREAS, the Developer has acquired the Development Property.
WHEREAS, the EDA and the Assessor have reviewed plans and specifications for the
Project.
NOW, THEREFORE, the parties to this Agreement, in consideration of the promises,
covenants and agreements made by each to the other, do hereby agree as follows:
The minimum market value, which shall be assessed for the Development1.
Property shall be as follows: as of January 2, 2024 for taxes payable 2025, not less than
$2,632,500, as of January 2, 2025 for taxes payable in 2026, not less than $7,897,500, and as of
January 2, 2026 for taxes payable in 2027 and each year thereafter, not less than $10,530,000.
The minimum market values herein established shall be of no further force and2.
effect after assessment on or before January 31,20502040 for taxes payable in 20512041;
provided, however, this Agreement shall terminate earlier upon such date as the earliest to occur
of (i) the date on which the entire principal and accrued interest on the TIF Note (as defined in
the TIF Agreement) has been paid in full; or (ii) any earlier date the TIF Agreement or the TIF
Note is cancelled in accordance with the terms thereof or deemed paid in full; or (iii) the date the
J- 1
BR291-422-864836.v67
TIF District (as defined in the TIF Agreement) is terminated in accordance with the TIF Act (as
defined in the TIF Agreement); or (iv) the date the EDA cancels the TIF Note upon a written
request for termination from the Developer (the “Termination Date”). If the Termination Date is
earlier than the assessment on or before January 31,20502040, for taxes payable in 20512041,
the EDA shall duly execute and record a release of this Agreement upon the written request and
sole expense of the then holder of fee title to the Development Property.
This Agreement shall be recorded by the EDA with the County Recorder of3.
Hennepin County, Minnesota and in the Office of the Hennepin County Registrar of Titles. The
Developer shall pay all costs of recording.
Neither the preambles nor provisions of this Agreement are intended to, or shall4.
they be construed as, modifying the terms of the TIF Agreement between the EDA and the
Developer.
This Agreement shall inure to the benefit of and be binding upon the successors5.
and assigns of the parties, shall be governed by, and interpreted pursuant to Minnesota law, and
may be executed in counterparts, each of which shall constitute an original hereof and all of
which shall constitute one and the same instrument.
This Instrument Drafted By:
Kennedy & Graven, Chartered (JSB)
700 Fifth Street Towers
150 South Fifth Street
Minneapolis, MN 55402
J- 2
BR291-422-864836.v67
IN WITNESS WHEREOF, the EDA and the Developer have caused this Minimum
Assessment Agreement to be executed in their names and on their behalf all as of the date set
forth above.
ECONOMIC DEVELOPMENT
AUTHORITY OF BROOKLYN CENTER,
MINNESOTA
By
Executive Director
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _____ day of ___________,
2023 by _______________, the Executive Director of the Economic Development Authority of
Brooklyn Center, Minnesota, a public body corporate and politic organized and existing under the
Constitution and laws of the State of Minnesota, on behalf of said Authority.
________________________________
Notary Public
K-S- 1
BR291-422-864836.v67
WANGSTAD COMMONS LLLP,
a Minnesota limited liability limited partnership
By: Wangstad Commons GP, LLC,
a Minnesota limited liability company
Its: General Partner
By: JO Companies, LLC,
a Minnesota limited liability company
Its: Sole Member
By:__________________________
Name: Johnny Opara
Its: Manager
STATE OF MINNESOTA )
) SS.
COUNTY OF _______)
The foregoing instrument was acknowledgment before me this ____ day of
_____________, 2023, by Johnny Opara, the manager of JO Companies, LLC, a Minnesota
limited liability company, the sole member of Wangstad Commons GP, LLC, a Minnesota
limited liability company, the general partner of Wangstad Commons LLLP, a Minnesota limited
liability limited partnership, on behalf of said limited liability limited partnership.
Notary Public
K-S- 2
BR291-422-864836.v67
CERTIFICATION BY COUNTY ASSESSOR
The undersigned, having reviewed the Assessment Agreement dated as of the date first
written above by and between the Economic Development Authority of Brooklyn Center,
Minnesota and Wangstad Commons LLLP, the plans and specifications for the Development, as
defined in the foregoing Minimum Assessment Agreement, and the market value currently
assigned to land upon which the improvements are to be constructed and being of the opinion
that the minimum market value contained in the Minimum Assessment Agreement appears
reasonable, hereby certifies as follows:
The undersigned Assessor, being legally responsible for the assessment of the
above-described property, hereby certifies that the minimum market value of $2,632,500, as of
January 2, 2024 for taxes payable 2025, $7,897,500, as of January 2, 2025 for taxes payable in
2026 and $10,530,000, as of January 2, 2026 for taxes payable in 2027 and each year thereafter,
assigned to such land and improvements is reasonable.
______________________________________
County Assessor for Hennepin County
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
This instrument was acknowledged before me on __________ _____, 2023, by
_____________________, the County Assessor of Hennepin County.
Notary Public
K-S- 3
BR291-422-864836.v67
EXHIBIT A TO MINIMUM ASSESSMENT AGREEMENT
The property located in the City of Brooklyn Center, Hennepin County, Minnesota described as:
Parcel 1
6017 Brooklyn Boulevard
Lot 1, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0049
Parcel 2
6101 Brooklyn Boulevard
Lot 2, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0050
Parcel 3
3600 61st Avenue N.
Lot 3, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0051
Parcel 4
3606 61st Avenue N.
Lot 4, Block 6, Wangstad’s Brooklyn Terrace, according to the recorded plat thereof, County of
Hennepin, State of Minnesota.
PID 34-119-21-43-0052
K-A- 1
BR291-422-864836.v67
Document comparison by W orkshare 10.0 on W ednesday, July 5, 2023 7:37:49
AM
Input:
Document 1 ID PowerDocs://DOCSOPEN/864836/6
Description DOCSOPEN-#864836-v6-Brooklyn_Center_TIF_10_DEVEL
OPMENT_AGREEMENT
Document 2 ID PowerDocs://DOCSOPEN/864836/7
Description DOCSOPEN-#864836-v7-Brooklyn_Center_TIF_10_DEVEL
OPMENT_AGREEMENT
Rendering set Standard
Legend:
Insertion
Deletion
Moved from
Moved to
Style change
Format change
Moved deletion
Inserted cell
Deleted cell
Moved cell
Split/Merged cell
Padding cell
Statistics:
Count
Insertions 47
Deletions 48
Moved from 1
Moved to 1
Style change 0
Format changed 0
Total changes 97