1. Public Infrastructure: New Tools, New Opportunities
Eric M. Braun Partner K&L Gates

2. Overview I. Introduction II. Special Assessment Districts
III. Tax Increment Financing
IV. Development Agreements

3. I. Introduction Public infrastructure continues to deteriorate
Citizens demand higher levels of service, amenities and improved infrastructure
Tax revenues continue to decline
In order to: deliver higher levels of service; meet citizen demands improve existing infrastructure, all with less tax revenue,
Must use of new financing techniques

6. II. SAD Background
On August 3, 2008, Session Law was signed into law authorizing Special Assessment Districts.
Langtree at the Lake in Mooresville
SADs are initiated by a petition of at least a majority of owners constituting 66% of the assessed value of the proposed district and created by a Town, City, or County to finance public improvements benefitting the district.
Assessments are paid in annual installments, and the installments are used to pay debt service on assessment bonds.
The following types of facilities are eligible
to be financed through an SAD:
Sanitary sewer systems
Storm sewers and flood control facilities
Water Systems
Public transportation facilities
School facilities
Streets and sidewalks
Legislative effort to expand potential uses of SAD’s

7. SAD Bond Structure Overview
SAD bonds are non rated, land secured debt often referred to as “dirt bonds”.
Debt service on the bonds is paid by the owners of benefited property within the SAD.
Bondholders look to the underlying value of the land as security for the bonds.
Up to two years of capitalized interest can be funded from bond proceeds. During the capitalized interest period, no debt service payments are made by owners of property within the SAD.
A reserve fund is funded from bond proceeds. The reserve fund is used to ensure timely payments to bondholders in the case of delinquent installments.

8. SAD Bond Structure Overview (continued)
The cost of district formation and issuance of bonds is payable from bond proceeds.
All administrative expenses related to the SAD are included in the assessment installments paid by property owners within the SAD. Therefore, the SAD is fiscally neutral to the Town.
Prior to the issuance of bonds, a market study will be performed.
Prior to the issuance of bonds, an appraisal will be performed.
Municipality is not responsible for the debt of the SAD.

9. SAD Bond Security Jon Snyder Managing Principal
Development Planning & Financing Group
(512)

10. Impact of SADs on Local Governments
No obligation to repay SAD bonds under any circumstances.
The SAD is fiscally neutral to issuing government.
Potential up-front funding of facilities accelerates absorption and tax collections by local government.

11. III. Tax Increment Financing
Means of creating a revenue stream to finance public infrastructure
Process of issuing bonds without a referendum
In NC, called “project development financing” or “self-financing bonds”
Typically used to attract new business or industry

12. Tax Increment Financing (continued)
When a district is created, a base property valuation is established
This base value is used for general tax revenue purposes
New public investment is then made, creating “new value”
This “incremental” increase in assessed value is used to finance bonds used for additional public improvements

13. Tax Increment Financing (continued)
May be used for:
Any use authorized for General Obligation Bonds
Any purpose for which a municipal service district may be established in N.C.G.S. 160A-536
Beach erosion control, flood, hurricane protection, utilities, water resources, drainage and control, Streets, streetscapes, sidewalks, transit-oriented development, parking, healthcare, civic, cultural, entertainment, affordable housing, industrial development, historic preservation, and redevelopment

14. Approval Process Required By Statute
Define Development Financing District
Total land area may not exceed 5% of the total land area of the local government
Property must be comprised of either:
Blighted, deteriorating or underdeveloped;
Appropriate for rehabilitation or conservation activities; or
Appropriate for economic development of the community

15. Statutory Approval Process (continued)
Establish a Development Financing Plan
Apply to Local Government Commission
Determination of Incremental Valuation
Owners may agree to a “Voluntary Minimum Assessed Value”
Minimizes risk that no “increment” will be created
Revenue Increment Fund
Used to finance bonds or pay for new infrastructure

16. Statutory Approval Process (continued)
Local Government Commission Guidelines for Approval of a Project
Proposal is necessary to secure significant new project development for district
The amount of the bond issuance is adequate and not excessive
The proposed project is feasible
The local government’s debt management policies and procedures are good

17. Statutory Approval Process (continued)
The proposed private development would likely not occur without the proposed public projects
The proposed bond issue can be marketed at a reasonable cost to the local government
A development financing plan has been adopted

18. Recent TIF Projects
Carolina Crossroads Music & Entertainment District - Roanoke Rapids, NC
This was the first project development financing project approved in North Carolina. Roanoke Rapids issued $21.5 million to purchase a newly-constructed 1500-seat theater intended as a centerpiece for a future entertainment complex at the intersection of Interstate 95 and NC Highway 125.

19. Recent TIF Projects North Carolina Research Campus - Kannapolis, NC
The Local Government Commission approved over $160 million in project development financing bonds for projects associated with the North Carolina Research Center in Kannapolis, NC. This project is supported by the City of Kannapolis and Cabarrus County, and is a joint venture between Dole Foods, Duke University, and the University of North Carolina system. The NC Research Campus encompasses a 350-acre site, that will include research facilities, office space, retail uses and town homes. Infrastructure improvements in the TIF district include roadway, streetscape, stormwater, utility, and waterline improvements.

20. Recent TIF Projects Woodfin Downtown Corridor - Woodfin, NC
In August 2008, Buncombe County issued $12.6 million in project development revenue bonds to finance public improvements in order to create a town center for Woodfin, NC. The county is authorized to issue up to $25 million total in TIF bonds. The TIF district is 205 acres along Interstate 26, near Asheville, NC. The infrastructure improvements to be paid with bond proceeds include streets, water/sewer extensions, pedestrian walkways and bike trails, and possibly a parking facility.

21. IV. Development Agreements
Many states have used Development Agreements (“DAs”) for years
 Arizona
California
Colorado
Florida
Hawaii
Idaho
Maryland
Nevada
New Jersey
Oregon
South Carolina
Virginia
Washington

22. Evolution of Development Agreements
Emerging Trends in Real Estate Development
More complex projects (i.e., vertical and horizontal mixed-use)
Larger tract development – especially in coastal and mountain regions (±1,000 acre developments more common)
Facilitates installation of infrastructure-more certainty

23. Evolution of Development Agreements
Need for more certainty
Demands on public infrastructure
Citizen demand for services and amenities
Limitations on vested rights
Common Law
Statutory

24. To Take Advantage of the Statute Authorizing DAs:
The property must contain 25 acres (exclusive of wetlands, mandatory buffers, unbuildable slopes, and other undevelopable portions of the property)
So, may need substantially
more than 25 acres
to utilize statute

25. The DA must contain the following:
Legal description of property and the names of its owners;
Duration of the agreement (up to a maximum of 20 years);
Uses permitted on the property, including population densities and building types, intensities, site layout, and design;
Description of developer provided public facilities that will serve the property along with construction schedule;

26. The DA must contain the following:
If the agreement calls for the local government to provide public facilities, then agreement must specify that providing the facilities will be tied to successful implementation by the developer of the proposed development;
Description of land to be dedicated and provisions to protect environmentally sensitive areas of property;
Description of all local permits approved or needed to be approved for the development;

27. The DA must contain the following (continued):
Description of conditions of approval to protect public health, safety, and welfare; and
Where applicable, provisions related to historic structures

28. Why Use a Development Agreement?
Nature and complexity of development necessitates more certainty over time
Lack of predictability costs developers and local governments alike
Helps coordinate funding and installation of private and public infrastructure
Encourages creativity

29. Benefits of Development Agreement
Provides certainty to government and development
Allocates risk and responsibility
May encourage better planning
May encourage more effective large scale planned communities
May foster more creative projects and development styles

30. Specific items that may be addressed in DAs:
Affordable housing
Water and sewer capacity reservations
School sites and construction
Off-site improvements (otherwise, generally prohibited by Statute)
Public safety (i.e., police, fire & rescue)
Parks, open space & greenways
Public water and sewer infrastructure
Streets
Lock-in impact fees
Public parking
Land banking
Protection of sensitive environmental areas

31. Questions??

32. For More Information Contact:
Eric M. Braun
Partner
K&L Gates
430 Davis Drive, Suite 400
Morrisville, NC
Tel or