HomeMy WebLinkAbout2017-12-19 HRA Regular Meeting Agenda PacketAgenda
Housing and R edevelopment Authority Meeting
City of Edina, Minnesota
Edin a City Hall Cou n cil Cham be rs
Immediately Following The Regular City Council Meeting
Tuesday, December 19, 2017
7:00 PM
I.Call to Order
II.Roll Call
III.Approva l of Meeting Agenda
IV.Community Comment
During "Community Comment," the Housing and Redev elopment Authority
(HRA) will invite members of the a udience to share new issues or concerns
tha t haven't been considered in the past 30 days by the HRA or which aren't
slated for future consideration. Indiv iduals must limit their comments to
three minutes. The Chair may limit the number of spea kers on the same
issue in the interest of time and topic. Generally speaking, items that are
elsewhere on tonight's agenda ma y not be addressed during Community
Comment. Individuals should not expect the Commissioners to respond to
their comments tonight. Instead the HRA might refer the matter to sta, for
considera tion at a future meeting.
V.Adoption of Consent Agenda
All a genda items listed on the consent agenda are considered routine and
will be enacted by one motion. There will be no separa te discussion of such
items unless requested to be remov ed from the Consent Agenda by a
Commissioner of the HRA. In such cases the item will be remov ed from the
Consent Agenda and considered immediately following the a doption of the
Consent Agenda. (Favorable rollcall v ote of majority of HRA Commissioners
present to approve.)
A.Approv e Minutes of December 5, 2017 Regular HRA Meeting
B.Amend Redevelopment Agreement for 3925, 3930 a nd 3944 Market Street
VI.Adjournment
The Edina Housing and Redevelopment Authority wants a ll participants to be
comforta ble being part of the public process. If you need assistance in the way of
hearing ampli9ca tion, an interpreter, large-print documents or something else,
please call 952-927-8861 72 hours in advance of the meeting.
Date: Dec emb er 19, 2017 Agenda Item #: I V.A.
To:C hair & C ommissioners of the Ed ina HR A Item Type:
Minutes
F rom:Debra A. Mangen, C ity C lerk
Item Activity:
Subject:Approve Minutes o f Dec emb er 5, 2017 R egular HR A
Meeting
Edina Housing and Redevelopment
Authority
Established 1974
C ITY O F E D IN A
HO US I NG & R EDEVELO P ME NT
AUT H O R I T Y
4801 West 50th Street
Edina, MN 55424
www.edinamn.gov
A C TI O N R EQ U ES TED :
Approve the minutes as presented.
I N TR O D U C TI O N :
AT TAC HME N T S :
Description
Draft December 5, 2017 Regular HRA Meeting Minutes
Page 1
MINUTES
OF REGULAR MEETING
OF THE EDINA HOUSING AND REDEVELOPMENT AUTHORITY
DECEMBER 5, 2107
10:47P.M.
I. CALL TO ORDER
Chair Hovland called the HRA meeting to order at 10:47 P.M.
II. ROLLCALL
Answering rollcall were Commissioners, Brindle, Fischer, Staunton, Stewart, and Chair Hovland.
III. APPROVAL OF MEETING AGENDA
Motion made by Commissioner Stewart and seconded by Commissioner Fischer approving the
Meeting Agenda.
Ayes: Brindle, Fischer, Staunton, Stewart, Hovland
Motion carried.
IV. COMMUNITY COMMENT
No Community Comment was received.
V. CONSENT AGENDA ADOPTED
Motion made by Commissioner Fischer seconded by Commissioner Brindle approving the consent
agenda as follows:
V. A. Approve minutes of November 21, 2017 Regular HRA Meeting
V.B Approve license agreement: 5146 Eden Avenue to allow contractor parking during the
Market Street North Ramp Expansion.
Ayes: Brindle, Fischer, Staunton, Stewart, Hovland
Motion carried.
VI. A. PUBLIC HEARING: REVIEW OF 2018 HRA OPERATING BUDGET, RESOLUTION NO. 2017-
11: SETTING 2018 TAX LEVY AND ADOPTING 2018 OPERATING BUDGET. Affidavit of Notice
presented and placed on file.
Executive Director Presentation
Executive Director Neal noted the HRA began an annual levy in 2017 to pay a portion of the administrative expenses
necessary to operate the HRA. Mr. Neal explained those expenses had been paid using TIF funds however, that
option will become more difficult as the Centennial Lakes TIF District funds gets spent down and the
district decertified in 2021. To reduce the reliance on TIF for general administrative expenses, the levy proposed
for 2018 was increased from $95,000 in 2017 to $125,000 for 2018. He concluded that no changes have been made
to the proposed HRA Operating Budget or Tax Levy from what was approved by the HRA on September 6, 2017.
Chair Hovland open the public hearing at 10:48 p.m.
Public Testimony
No one appeared.
Commissioner Staunton made a motion, seconded by Commissioner Fischer to close the public
hearing.
Ayes: Brindle, Fischer, Staunton, Stewart, Hovland
Motion carried.
Commissioner Staunton made a motion, seconded by Commissioner Brindle to adopt Resolution
No. 2017-11 adopting the budget for the Edina Housing and Redevelopment Authority for the year
2018 and establishing tax levy payable 2018.
Minutes/HRA/December 5, 2017
Page 2
Ayes: Brindle, Fischer, Staunton, Stewart, Hovland
Motion carried.
VII. REQUEST FOR PURCHASE: AWARD OF BID, IMPROVEMENT PW - 18-001, NORTH RAMP
EXPANSION AND RETAIL SHELL CONSTRUCTION. 10:5
Public Works Director Olson explained bids were opened for the North Ramp Expansion and retail shell
construction project on November 29, 2017 and included four add alternates that staff was recommending for
approval. Add Alternate 1 was to install the wood look extruded aluminum louvers that were shown on graphics
presented to the City Council on November 8, 2017. Add Alternate 2 and 3 defined the cost participation from
the Developer of the South Market Street Project and Add Alternate 4 was to change the metal stair on the east
end of the project to a cast in place concrete stairway to be consistent with the other stairwells in the project. Mr.
Olson explain the bids received were very good and staff was recommending the low bidder of Adolfson & Peterson.
He added that staff was also requesting the ability to authorize change order of up to $50,000 in order to keep
construction on schedule. All change orders would be brought to the HRA for review. Motion by
Commissioner Brindle seconded by Commissioner Fischer to award the bid for the North Ramp
Expansion and Retail Shell Construction to Adolfson and Peterson Construction in the amount of
$8,502,410 and allow staff to approve change orders of up to $50,000.
Ayes: Brindle, Fischer, Staunton, Stewart, Hovland
Motion carried.
VIII. REQUEST FOR PURCHASE: ENVIRONMENTAL SERVICES CONTRACT FOR NORTH RAMP
EXPANSION
Mr. Olson explained the Braun Intertec has been providing the same services to the Market Street Developer for
their portion of the Market Street project and for the sake of consistency, staff recommended using Braun for the
City’s ramp improvements. Motion to approve the scope of services for Braun Intertec to complete
environmental professional service and reporting for the Response Action Plan for the Minnesota
Pollution Control Agency (MPCA), by Commissioner Brindle, seconded by Commissioner Fischer.
Ayes: Brindle, Fischer, Staunton, Stewart, Hovland
Motion carried.
IX. MARKET STREET REDEVELOPMENT: CONSTRUCTION MITIGATION AND PARKING
MANAGEMENT PLAN
Mr. Neal outlined the process staff had used to develop the construction mitigation and parking management plan,
noting the plan will be updated as needed during construction. Bill Neuendorf, Economic Development Manager,
explained the construction mitigation and parking plan pertained to measures anticipated to be taken to mitigate
construction impacts and parking management during the expansion of the North Parking Ramp and
reconstruction of the Center Ramp site. He stated the provisions were prepared based on extensive input
from neighbors and businesses located in closest proximity to the project. Staff and the HRA discussed various
aspects of the plan. The HRA thanked staff for their work in developing the mitigation plan. Commissioners
urged staff to do more communication residents near the affected area.
IX. PRELIMINARY DEVELOPMENT AGREEMENT - 5146 EDEN AVENUE.
Mr. Neal introduced the topic, noting that staff had sought policy guidance from the HRA earlier this year regarding
the disposition of the vacant property at 5146 Eden Avenue. The HRA Board directed staff to revive the partnership
with Frauenshuh and update the Redevelopment Agreement before the end of the year.
Mr. Neuendorf noted the previous partnership effort with Frauenshuh was completed in 2016. At that time, no
action was taken on the public/private redevelopment concept because the public element (a 70,000 Sq Ft
community center with structured parking) was deemed to be too expensive.
Mr. Neuendorf briefly highlighted the Preliminary Development Agreement negotiated with Frauenshuh, noting that
the agreement was grounded in the seven Guiding Principles of the Grandview Framework and informed by the
Framework Plan and Transportation Plan. He said the team will consider the suggestions, comments and concerns
amassed over the last ten years as they prepare a new concept.
Minutes/HRA/December 5, 2017
3
Mr. Neuendorf stated that Dave Anderson from Frauenshuh and Dean Dovolis, DRG Architect, were in attendance
and available for questions. The Development Agreement would be a joint public private endeavor that might
include: new multi-family housing both market rate & affordable, shared district parking, new public facility with
indoor and outdoor space. The HRA and staff discussed the terms of the Agreement and circumstances that would
cause reimbursement of developer’s costs. Staff was directed to ensure that the new agreement recognize any
credit remaining from the conclusion of the 2015/2016 partnership.
Motion to approve the Preliminary Development Agreement and authorize staff to implement the
agreement by Commissioner Staunton seconded by Commissioner Fischer.
Ayes: Brindle, Fischer, Staunton, Stewart, Hovland
Motion carried.
X. ADJOURNMENT
Chair Hovland declared the meeting adjourned at 11: 50 p.m.
Respectfully submitted,
Scott Neal, Executive Director
Date: Dec emb er 19, 2017 Agenda Item #: I V.B.
To:C hair & C ommissioners of the Ed ina HR A Item Type:
R ep o rt / R ecommend atio n
F rom:Bill Neuendorf, Ec o nomic Development Manager
Item Activity:
Subject:Amend R edevelo p ment Agreement for 3925, 3930
and 3944 Market S treet
Ac tio n
Edina Housing and Redevelopment
Authority
Established 1974
C ITY O F E D IN A
HO US I NG & R EDEVELO P ME NT
AUT H O R I T Y
4801 West 50th Street
Edina, MN 55424
www.edinamn.gov
A C TI O N R EQ U ES TED :
M otion to authorize the C hair and S ecretary to execute an Amendment substantially similar to that provided to
the Board, and all other related documents specified in Amendment #1 to the J une 27, 2017 R edevelopment
Agreement.
I N TR O D U C TI O N :
T his item pertains to the sale and redevelopment of H R A-owned parcels on M arket S treet. M inor amendments
to the June 27, 2017 R edevelopment Agreement are required in advance of the real estate closing. T he City of
E dina also serves as a party to elements of this Amendment.
AT TAC HME N T S :
Description
Amend Redevelopment Agreement - s taff report
Amendment #1 To Redevelopment Agreement
December 19, 2017
Mayor and Council Members
Chair and Board Members of the Edina Housing & Redevelopment Authority
Bill Neuendorf, Economic Development Manager
Amendment to Market Street Redevelopment Agreement
Information / Background:
On June 27, 2017, the City of Edina, the Edina Housing and Redevelopment Authority (HRA) and the
developers at Edina Market Street, LLC executed a Redevelopment Agreement that established terms and
conditions for the sale and redevelopment of portions of HRA owned property in the 50th and France
District. Since that time, both the HRA and developers have been working diligently to implement the terms
of the Agreement.
This Amendment to the Redevelopment Agreement contains updates and additions to the original terms.
This document has been negotiated by staff and prepared by Dorsey & Whitney. The developers are
prepared to execute this Amendment.
Key topics addressed in this Amendment include:
• Transaction Date – closing date established as January 11, 2018
• Valet Parking - commit to level of service and identify cost responsibility
• Availability of South Ramp in Case of Delay – commit to the continued use of the Center Ramp by
employees and customers in the unlikely event that the North Ramp is not partially restored to use
on April 1st and establish penalties for any resulting delay
• Pending Grants – address how a potential budget shortfall is addressed in case grant applications are
unsuccessful
STAFF REPORT Page 2
• Affordable Housing – update the number of units now that final construction plans have been
prepared (reduced from 11 to10) and reduce the loan that is provided to offset the foregone rent
(reduced from $1.6 million to $1.5 million)
• Interim Use of Center Ramp – clarify that public access to the Center Ramp and surface lot remain
in the months prior to demolition and reconstruction
• Temporary Waste Hauling Service – clarify that developer will be responsible for providing waste
hauling service for the adjacent properties during the 21-month construction period and will be
reimbursed by the parties served
It is recommended that both the City Council and HRA Board approve this amendment and authorize staff
to execute its terms.
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FIRST AMENDMENT
to
REDEVELOPMENT AGREEMENT
by and among
THE CITY OF EDINA, MINNESOTA,
THE HOUSING AND REDEVELOPMENT AUTHORITY
OF THE CITY OF EDINA, MINNESOTA,
and
EDINA MARKET STREET LLC
Dated as of
December 19, 2017
THIS DOCUMENT WAS DRAFTED BY:
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402-1498
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FIRST AMENDMENT TO
REDEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO REDEVELOPMENT AGREEMENT (“First
Amendment”) is made and entered into this 19th day of December, 2017 (“Effective Date”),
among the CITY OF EDINA, MINNESOTA, a Minnesota statutory city (the “City”), the
HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF EDINA,
MINNESOTA, a public body corporate and politic organized and existing under the laws of the
State of Minnesota (the “Authority”) and EDINA MARKET STREET LLC, a Minnesota
limited liability company (the “Developer”) (together, the “Parties”).
RECITALS
WHEREAS, the City, the Authority and the Developer are parties to a Redevelopment
Agreement dated June 27, 2017 (the “Redevelopment Agreement”) and all capitalized terms
used in this First Amendment shall have the meaning given them in the Redevelopment
Agreement; and
WHEREAS, the Parties have agreed to amend the Redevelopment Agreement on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and the mutual obligations of
the Parties hereto, each of them does hereby covenant and agree with the other as follows:
1. South Site Land Transfer Closing Date. Notwithstanding anything to the
contrary, Authority and Developer agree that the Land Transfer Closing Date for the South Site
shall be January 11, 2018.
2. Center Ramp Lease Holdover.
a. Amendment to Redevelopment Agreement. Section 3.4 of the
Redevelopment Agreement is hereby amended and restated in its entirety as follows:
“Section 3.4 Demolition Timing; Hold Over Conditions.
a. Subject to Section 3.1, the Developer may demolish the Center
Ramp after the Authority, as lessee under the Center Ramp Lease, has vacated and
surrendered the South Site pursuant to the Lease, which is anticipated to be at the
end of the Center Ramp Lease term, the same being the earlier to occur of: (a) the
completion of the North Ramp Improvements (Initial) to the extent that the North
Ramp can safely be re-opened to the public for parking with no less than 185
parking stalls, as reasonably determined by the Authority, and (b) April 1, 2018
(the “Lease Expiration Date”).
b. If the Authority fails to so vacate and surrender the South Site
(“Center Ramp Surrender”) by the Lease Expiration Date the following shall
apply: (i) the Authority shall provide not less than one (1) week’s written notice to
Developer of the Authority’s intent to hold over beyond the Lease Expiration Date
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as provided herein, (ii) immediately following the Lease Expiration Date,
Developer may begin mobilization on the South Site in preparation for demolition
of the Center Ramp provided that the Center Ramp remains open, safe, and
accessible for parking by the public; (ii) if Center Ramp Surrender does not occur
by the date that is one week after the Lease Expiration Date, the Authority will pay
Developer, for the period from the Lease Expiration Date through the date that the
Center Ramp Surrender occurs, the sum of (a) $3,000.00 per day, retroactive to the
Lease Expiration Date, for the period commencing on the Lease Expiration Date
and ending on the date thirty (30) days following the Lease Expiration Date, and
(b) $10,000.00 per day, for the period commencing on the date thirty-one (31) days
following the Lease Expiration Date and ending on the date sixty (60) days
following the Lease Expiration Date (collectively, the “Hold Over Rent”). In no
event shall the Authority have the right to hold over or otherwise occupy or use the
Center Ramp or South Site beyond the date sixty (60) days following the Lease
Expiration Date (the “Outside Surrender Date”), and Developer shall have the right
in all cases to demolish the Center Ramp no later than the day following the
Outside Surrender Date.
c. Hold Over Rent, if any, will be payable by the Authority to the
Developer by the fifth day of the first month following the Lease Expiration Date,
and by the fifth day of each month thereafter, to the extent any Hold Over Rent is
due and payable.
d. Notwithstanding anything to the contrary in this Agreement or the
Center Ramp Lease, Developer may begin utility relocation work on the South Site
immediately following the Land Transfer Closing Date for the South Site,
provided that (i) the Center Ramp remains open, safe, and accessible for parking
by the public, and (ii) to the extent practicable during utility relocation work
thereon, Developer agrees to maintain surface parking, including handicap
parking, delivery and trash routes, and dumpster storage, on the surface parking lot
currently located on the South Site.”
b. Replacement of Form of Center Ramp Lease. Exhibit E attached to the
Redevelopment Agreement is hereby deleted in its entirety and replaced with Exhibit attached
hereto.
3. Contingencies for Land Transfer Closings.
a. Section 4.2(a)(vi) is hereby deleted from Section 4.2 and inserted in its
entirety as a new Section 4.3(a)(iv) to the Redevelopment Agreement.
b. The following is hereby added as a new Section 4.2(b)(xi) of the
Redevelopment Agreement:
“(xi) The Authority shall have entered into a sub-grant agreement with
Developer with respect to $295,000.00 of the Metropolitan Council Tax Base
Revitalization Account Contamination Cleanup Grant Program award.”
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c. The following is hereby added as a new Section 4.2(b)(xii) of the
Redevelopment Agreement:
“(xii) The Metropolitan Council shall have made a final award of a Livable
Communities Demonstration Account Grant in an amount not less than $1,441,565.00
(the “LCDA Grant”) to the City and the City shall have delivered a confirmation letter to
Developer confirming the award of the LCDA Grant and the City’s intent to enter into a
sub-grant agreement for delivery of the LCDA Grant funds to Developer.”
d. Section 4.3(b)(ii) of the Redevelopment Agreement is hereby amended
such that the phrase “Section 4.4(b)” therein is replaced with the phrase “Section 4.4(a)”.
4. Construction on Public Utility Easement. Section 5.5(c) is hereby amended to
insert the following phrase at the beginning of existing Section 5.5(c):
“Except as provided on the Final Development Plan,”.
5. Temporary Trash and Recycling. The following is hereby added at the end of
Section 5.6 of the Redevelopment Agreement:
From the date the Authority vacates the Center Ramp under the Center Ramp
Lease until the Shared Trash Facility is open and operating for use is accordance
with the Trash Facility Easement, Developer shall provide and service, temporary
trash and recycling facilities for the Serviced Buildings at one or more locations
within the Project Area. Such temporary facilities will be sized to accommodate
the trash, recycling, and organic disposal needs of the Serviced Buildings. The
Developer will initially bear the cost of such temporary facilities and the City will
reimburse the Developer for such costs on a monthly basis upon presentation of
invoices and other documentation of such costs. The City may recoup such costs
from the users of such temporary facilities in accordance with the City’s policies
and rules for providing such services to the 50th and France District.
6. Valet Parking. The following is hereby added as a new Section 5.10 of the
Redevelopment Agreement:
Section 5.10 Valet Parking During Construction Period. Developer
shall provide valet parking service during the construction period for the North
Ramp Improvement, which will extend from approximately the Land Transfer
Closing Date for the South Site to the completion of the North Ramp
Improvements (anticipated to be January 8, 2018 through September 30, 2018).
Valet service will be provided during the busiest customer days of the week,
which is anticipated to be Monday through Saturday from approximately 10:00
AM to 6:00 PM, provided that valet times and hours may be adjusted based on
business needs. Such valet service will include two valet drop off/pick up
locations, one to be located near 50th and Halifax and the second to be located
near Market and France. Each location will be staffed by two attendants. Valet
service shall be provided at no cost to the customer or businesses. Tipping shall
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not be required nor encouraged. Developer shall (i) secure valet service contracts
with reputable vendors; (ii) secure off-site parking at Mercy Covenant Church;
and (iii) if necessary, as mutually determined by Authority and Developer, use
commercially reasonable efforts to secure a second site on terms reasonably
acceptable to both Developer and Authority. Developer shall be responsible for
(a) the cost to provide 12.5 hours per week of valet services, and (b) the cost to
secure off-site parking at Mercy Covenant Church, each for up to nine months.
The City shall reimburse Developer for the cost of valet service which are not the
Developer’s responsibility pursuant to the preceding sentence. In addition, if a
second off-site location is secured pursuant to the terms hereof, Developer shall
be responsible for the cost to secure such site for the period from January through
April and the City shall be responsible for such costs from May through
September. The City will reimburse Developer for the City’s share of actual costs
incurred on a monthly basis upon presentation of invoices and other
documentation of such costs. The City will provide access to limited portions of
the North Ramp for additional parking for use by valet attendants.
Notwithstanding anything to contrary in this section, the City and Developer
reserve the right to terminate or reduce valet service with one week notice if the
service is not reasonably used by customers and an alternate strategy to mitigate
construction impacts to businesses is implemented.
7. Preconditions to Issuance of the TIF Note. Section 9.4(a)(i) is hereby deleted
from the Redevelopment Agreement.
8. Affordable Housing.
a. Section 9.6(b) of the Redevelopment Agreement is hereby amended such
that the dollar figure of $1,600,000.00 in the third line and twelfth line of Section 9.6(b)
is replaced with the dollar figure of $1,500,000.00 in each case.
b. Section 9.6(b) of the Redevelopment Agreement is hereby further
amended such that the phrase “effective date of the Affordable Housing Loan
Agreement” in the sixteenth line of Section 9.6(b) is replaced with the phrase
“Disbursement Date, as defined in the Affordable Housing Loan Agreement.”
c. Exhibit I and Exhibit M attached to the Redevelopment Agreement are
hereby deleted in their entirety and replaced with Exhibit I and Exhibit M attached
hereto.
9. Escrow of Grant Funds. The following is hereby added at the end of Section 9.7
of the Redevelopment Agreement:
“City and Developer have applied for, and expect to receive, certain funds by
grant from the Minnesota Department of Employment and Economic
Employment (the “DEED Grant”). In the event that (a) the DEED Grant funds
have not been finally awarded, or (b) the City and Developer have not entered
into a sub-grant agreement with respect thereto, as of the South Site Land
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Transfer Closing Date, the Authority shall place in escrow with the Escrow Agent
the above-described $500,000.00 (the “DEED Grant Escrow”). The DEED Grant
Escrow shall be released to the Authority upon (a) the final awarding of the
DEED Grant funds to the extent that the Authority is not responsible to provide
such funds to Developer pursuant to this Section 9.7, (b) the execution of a grant
agreement between the awarding entity and the City, and (c) the execution of a
sub-grant agreement between the City and Developer. The DEED Grant Escrow
shall be released to Developer in the event that Developer does not receive the full
DEED Grant award to the extent not so received.
10. Entire Agreement. Except as herein amended, other terms and provisions of the
Development Agreement, as amended, shall remain in full force and effect.
11. Ratification. Except as specifically modified by this First Amendment, the terms
and provisions of the Redevelopment Agreement shall remain in full force and effect.
12. Binding Effect. This First Amendment amends and supplements the
Redevelopment Agreement. If there is a conflict between the provisions of the Redevelopment
Agreement and this First Amendment, the provisions of this First Amendment shall control. This
First Amendment shall be binding upon and inure to the benefit of the City, the Authority, the
Developer, and their respective successors and assigns.
13. Counterparts. This First Amendment may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Facsimile or email copies shall be deemed originals.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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[Signature Page to First Amendment to Redevelopment Agreement]
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IN WITNESS WHEREOF, the City, the Authority and the Developer have caused this
First Amendment to be duly executed in their names and on their behalf, all on or as of the date
first above written.
CITY OF EDINA, MINNESOTA
By: _____________________________
Mayor
By: _____________________________
City Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ____ day of December,
2017, by James B. Hovland and Scott Neal, the Mayor and City Manager respectively, of the
City of Edina, Minnesota, on behalf of the City of Edina.
Notary Public
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[Signature Page to First Amendment to Redevelopment Agreement]
4818-3603-5928\3
HOUSING AND REDEVELOPMENT
AUTHORITY OF THE CITY OF EDINA,
MINNESOTA
By: ______________________________
Chair
By: ______________________________
Secretary
Reviewed and Approved:
__________________________________
Scott H. Neal
Executive Director
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ____ day of December,
2017, by James B. Hovland and Robert Stewart, the Chair and Secretary respectively, of the
Housing and Redevelopment Authority of the City of Edina, Minnesota, on behalf of said
Authority.
Notary Public
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[Signature Page to First Amendment to Redevelopment Agreement]
4818-3603-5928\3
EDINA MARKET STREET LLC
a Minnesota limited liability company
By: __________________________________
Its: __________________________________
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ___ day of December, 2017,
by __________________, the _______________________ of Edina Market Street LLC, a
Minnesota limited liability company, on behalf of the limited liability company.
Notary Public
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EXHIBIT E
Center Ramp Lease
LEASE AGREEMENT
(Market Street Center Ramp)
THIS LEASE AGREEMENT (this “Lease”) is entered into effective as of _________
______________, 20___, by and between EDINA MARKET STREET LLC, a Minnesota
limited liability company (“Lessor”), and the CITY OF EDINA, MINNESOTA, a Minnesota
statutory city and the HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY
OF EDINA, MINNESOTA, a public body corporate and politic organized and existing under
the laws of the State of Minnesota (collectively, the “Lessee”).
RECITALS
WHEREAS, the Lessor and Lessee have entered into a Redevelopment Agreement dated
June 27, 2017 (as amended, the “Contract”); and
WHEREAS, such Contract provides for the redevelopment of certain land within the
City’s 50th & France District located on Market Street (formerly known as 49 1/2 Street) by the
Lessor in coordination with and with the cooperation and assistance of Lessee (the “Market
Street Project”); and
WHEREAS, the Contract provides for Lessor to purchase from Lessee the real property
described on Exhibit A attached hereto, together with all improvements located thereon (referred
to herein, and in the Contract, as the “South Site”); and;
WHEREAS, the Contract provides further that following the transfer of the South Site to
Lessor, Lessor will lease the South Site back to Lessee so the South Site can continue to be
utilized for public purposes until certain other improvements can be completed in connection
with the Market Street Project;
WHEREAS, all capitalized terms used herein without definition shall have the respective
meanings ascribed to them in the Contract.
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 others as follows:
ARTICLE I
Section 1.01 Lease of Premises and Equipment; Title and Condition
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, on an “as-is” and
“where-is” basis, the South Site, together with all fixtures, equipment and any other personal
property located thereon as of the Commencement Date (the “Premises”).
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Section 1.02 Permitted Use
Lessee may only use the Premises for its current use as a public parking facility, trash
collection facility (for certain users and occupants within the 50th & France District), and other
directly related uses (the “Permitted Use”). Lessee shall not assign this Lease or sublet any
portion of the Premises without Lessor’s prior written consent.
Section 1.03 Term
(a) Term. This Lease shall be for a term beginning on the Land Transfer Closing Date
for the South Site (the “Commencement Date”) and ending on the earlier to occur of the
following dates: (a) the completion of the North Ramp Improvements (Initial) to the extent that
the North Ramp can be safely re-opened to the public for parking with no less than 185 parking
stalls, as reasonably determined by Lessee; or (b) April 1, 2018 (the “Term”).
(b) Holdover. If Lessee continues to occupy the Premises after the expiration of the
Term, without the express prior written consent of Lessor, such tenancy shall be a tenancy at
sufferance, and Lessee shall be subject to the terms and conditions set forth in the Contract and
shall pay Lessor the Hold Over Rent in accordance with the terms and conditions set forth in the
Contract.
Section 1.04 Premises Accepted As-Is and Where Is; No Representations or
Warranties
Lessee accepts the Premises “AS-IS” and “WHERE IS” in the condition the Premises
may be found on the Commencement Date, and subject to all limitations to which the Premises
are subject.
Section 1.05 Rent and Other Payments
(a) Rent. Lessee shall pay to Lessor rent as follows (“Rent”):
i. Beginning on the Commencement Date, throughout the Term, $10.00 per
month, payable no later than thirty (30) days after written demand therefor by Lessor.
ii. As additional “Rent”, Lessee shall timely pay the following: (i) all taxes,
assessments, levies, fees, water and sewer rents and charges and all other governmental charges,
general and special, ordinary and extraordinary, foreseen and unforeseen, which are, at any time
prior to or during the Term imposed or levied upon or assessed against or which arise with
respect to the Premises; and (ii) all charges of utilities, communications and similar services
serving the Premises.
(b) Additional Payments. Within thirty (30) days after written demand therefor, Lessee
shall pay any other amount owed to Lessor pursuant to this Lease (each an “Additional
Payment”).
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ARTICLE II
Section 2.01 Net Lease
This is an “absolute net lease”, and in addition to the Rent and Additional Payments,
Lessee is wholly responsible for the payment of all costs and expenses relating to the Premises
whatsoever, including, without limitation, all repairs and maintenance, taxes, utility costs, the
premiums, fees and other costs required to maintain the insurance Lessee is required to maintain
pursuant to this Lease, and all other costs and expenses with respect to the Premises.
Section 2.02 Maintenance and Repair
Lessee shall, at its own expense, maintain all parts of the Premises in the manner
necessary, in Lessee’s discretion, for the safe and efficient use of the Premises for the Permitted
Use. It is acknowledged and agreed by the parties that the Premises will be demolished and
redeveloped as part of the Market Street Project following the expiration or earlier termination of
the Term, and Lessee, therefore, has no obligation to return the Premises to Lessor in any
specific condition and has no obligation to complete any specific repairs to the Premises. Except
as required to maintain the Premises in a safe condition and as required by applicable Legal
Requirements, Lessor shall not be required to furnish any services or facilities or to make any
improvements, repairs or alterations in or to the Premises during the Term.
Section 2.03 Alterations
Lessee shall not make any material change to, or permit any material construction on the
Premises, without Lessor’s prior written consent.
Section 2.04 Additional Lessee Obligations with Respect to Maintenance, Repair
or Modification
With respect to any maintenance, repair, alteration, improvement, addition, or change to
the Premises constructed, caused or made by Lessee, Lessee shall, at Lessee’s sole expense:
(a) comply with all Legal Requirements applicable thereto or any portion of
the Premises,
(b) pay all costs in connection therewith, and
(c) indemnify, defend and save and hold Lessor and the Premises harmless
from any and all costs, judgments, expenses, or mechanics’, laborers’, materialmens’, vendors’,
suppliers’ or other liens that may be filed against the Premises resulting or relating to any such
changes
Section 2.05 Insurance
Lessee will procure and maintain continuously in effect (or shall cause the same to
occur), policies of insurance of the kind and minimum amounts as are customarily maintained
with respect to the Premises and Permitted Use, to be reviewed from time to time by the Lessee
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and adjusted in accordance with the requirements of Minnesota Statutes Section 466.04. Lessee
shall name Lessor and Lessor’s lender as additional insured and loss payee, as applicable, on
Lessee’s insurance policies covering the Premises.
ARTICLE III
Section 3.01 Compliance With Law
Without limiting any of Lessee’s obligations hereunder, Lessee shall comply with and
cause the Premises to comply with and shall assume all obligations and liabilities with respect to
(i) all laws, ordinances and regulations and other governmental rules, orders and determinations
presently in effect or hereafter enacted, made or issued, whether or not presently contemplated
(collectively, “Legal Requirements”), as applied to the Premises or the ownership, operation, use
or possession thereof.
Section 3.02 Environmental Matters
The covenants set forth in Section 4.5 of the Contract will extend through the Term of
this Lease, such that the “transfer” of the South Site for purposes of said Section 4.5 will be
deemed to have occurred upon the expiration or earlier termination of the Term; provided,
however, Lessor shall be responsible for all claims and costs arising from the presence, disposal,
or release of Hazardous Material upon the Premises, to the extent caused by Lessor, its
contractors or agents during the Term.
ARTICLE IV
Section 4.01 Indemnification; Immunity
(a) Lessee shall indemnify, defend and hold harmless Lessor, any mortgagee with
respect to the Premises, and their respective, officers and members, and their respective
successors and assigns from any and all claims and costs arising out of, based on or in
connection with or by reason of the Premises or Lessee’s operation or use of the Premises.
(b) Nothing herein shall be deemed or constitute a waiver by the Lessee of any statutory
limitations on liability, statutory or common law immunities or any defenses that would
otherwise be available to it in claims by third parties, including specifically the maximum
liability amount contained in Minnesota Statutes Section 466.04.
ARTICLE V
Section 5.01 Casualty
If the Premises shall be destroyed or damaged by fire, flood, earthquake, or other casualty
(“Casualty”), Lessee shall be entitled, at its sole option, to (a) reconstruct improvements on the
Premises as Lessee may deem necessary or convenient in connection with its use and occupancy
of the Premises pursuant to this Lease (a “Restoration”) or (b) within one hundred eighty (180)
days of the Casualty event, terminate this Lease with notice to Lessor and Lessee shall have no
obligation to perform a Restoration, other than razing the remainder of such building and
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improvements, remove all debris from the Premises, and either (i) completely landscape or (ii)
install a parking areas consistent with the existing parking areas of the Premises. Lessee may
unilaterally negotiate, prosecute or adjust any claim for any awards, compensations and
insurance payments on account of any Casualty, and retain any and all proceeds thereof.
ARTICLE VI
Section 6.01 Default Provisions
(a) The following shall constitute an “Event of Default” under this Lease: Lessee’s
failure to observe or perform any of its other obligations pursuant to this Lease and such failure
has not been cured within thirty (30) days after written notice of such failure, or if such failure
cannot reasonably, with diligence, be cured within such thirty (30) day period, it shall not be an
“Event of Default” if Lessee commence to cure such failure within such initial thirty (30) day
period and continuously and diligently prosecute such curing, the time within which Lessee may
cure such deficiency failure will be extended for a reasonable time not to exceed one hundred
(100) days to the extent reasonably necessary to complete such curing with diligence.
(b) After an Event of Default, Lessor may assert any action or remedy available under
law or in equity by ordinary, summary or expedited process.
ARTICLE VII
Section 7.01 Transfer and Assignment
Lessee shall not assign this Lease or sublet the use of all or any part of the Premises
without Lessor’s prior written consent. Excluding an assignment to an affiliate and a collateral
assignment for financing purposes, Lessor shall not assign Lessor’s interest in this Lease or the
Premises without Lessee’s prior written consent.
ARTICLE VIII
Section 8.01 Mortgages
Lessee shall, within ten (10) days of Lessor’s request, subordinate this Lease, upon terms
and conditions reasonably acceptable to Lessee, to any mortgage encumbering Lessor’s interest
in the Premises in the future, provided that such lien holder executes a subordination, non-
disturbance and attornment agreement executed by the mortgage holder in the form and
substance reasonably acceptable to Lessee.
Section 8.02 Memorandum of Lease
Upon the request of either party, the parties shall execute a memorandum of this Lease,
which shall set forth the Term of the Lease and provide for a unilateral termination of record thereof
by Lessor, together with such other provisions as the parties may mutually agree upon. Said
memorandum of Lease shall be executed by each of the parties, acknowledged and otherwise shall
be in recordable form. Either Lessor or Lessee may record with the Hennepin County Recorder said
memorandum of Lease at the sole cost of said recording party.
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Section 8.03 Notices and Other Instruments
Any notice, demand or other communication under this Lease by any party to any other
shall be given in the manner required under the Contract.
Section 8.04 Surrender
Upon the expiration or termination of this Lease, Lessee shall surrender the Premises to
Lessor in the repair and condition required under the Lease. Notwithstanding anything to
contrary contained herein or under applicable Legal Requirements, prior to expiration or
termination of this Lease, Lessee may, but shall not be obligated to, remove and retain any
fixtures, equipment, or personal property which are a part of the Premises or located thereon.
Section 8.05 Quiet Enjoyment
Lessor agrees that, subject to the rights of Lessor under this Lease, Lessee shall hold and
enjoy the Premises during the term of this Lease, free from any hindrance or interference from
Lessor or any other person claiming by or through Lessor.
Section 8.06 Attorneys’ Fees
In the event either Lessor or Lessee commences a legal action to enforce the provisions of
this Lease, the prevailing party in such action shall be entitled, as a part of said action, to recover all
its costs and expenses, including reasonable attorneys' fees.
Section 8.07 Counterparts
This Lease may be executed in any number of counterparts, each of which shall
constitute one and the same instrument.
Section 8.08 Law Governing
This Lease will be governed and construed in accordance with the laws of the State of
Minnesota.
Section 8.09 Consents and Approvals
In all cases where consents or approvals are required hereunder, such consents or
approvals shall not be unreasonably conditioned, delayed or withheld. All consents or approvals
shall be in writing in order to be effective.
Section 8.10 No Additional Waiver Implied by One Waiver
If any agreement contained in this Lease should be breached by any party and thereafter
waived by another party, such waiver shall be limited to the particular breach so waived and
shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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[Signature Page to Lease Agreement (Market Street Center Ramp)]
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed as
of the date first above written.
LESSOR:
EDINA MARKET STREET LLC
a Minnesota limited liability company
By: _____________________________
Name: _____________________________
Its: ____________________________
LESSEE:
CITY OF EDINA, MINNESOTA
By: _________________________ _____________
Mayor
By: _________________________ _____________
City Manager
HOUSING AND REDEVELOPMENT
AUTHORITY OF THE CITY OF EDINA,
MINNESOTA
By: __________________________
Chair
By: __________________________
Executive Director
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EXHIBIT A
PREMISES
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EXHIBIT I
DECLARATION OF COVENANTS AND RESTRICTIONS
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION is made as of the day of _______________ ____, 20___, by
EDINA MARKET STREET LLC, a Minnesota limited liability company (“Declarant”).
RECITALS
WHEREAS, Declarant, is the owner of certain real properties situated in the city of
Edina, County of Hennepin, State of Minnesota, legally described in Exhibit A attached hereto
and incorporated herein by reference (the “Property”); and
WHEREAS, the Housing and Redevelopment Authority of the City of Edina, Minnesota,
a public body corporate and politic organized and existing under the laws of the State of
Minnesota (the “Authority”); the City of Edina Minnesota, a Minnesota statutory city (the
“City”); and Declarant have entered into a Redevelopment Agreement (as amended, the
“Contract”) dated June 27, 2017; and
WHEREAS, such Contract is intended to provide for the redevelopment of the Property
by Declarant in coordination with the Authority and with the cooperation and assistance of City
(the “Market Street Redevelopment”), and
WHEREAS, the Contract provides for the expenditure of public and other funds to assist
in the redevelopment of the Market Street Redevelopment and to pay for certain Minimum
Improvements, which include, without limitation, an approximately 100 unit apartment building
to be located on the real property described on Exhibit A attached hereto (the “Project” and
referred to in the Contract as the “Apartment Element”); and
WHEREAS, pursuant to the Contract, Declarant has agreed to impose restrictive
covenants upon the Property to ensure that at least ten percent (10%) of the residential units
within the Project (consisting of two (2), two bedroom units with a minimum area of 1,000
square feet each and [____], one bedroom units with a minimum area of 650 square feet each)
will remain affordable to certain low-income persons and households (“Affordable Units”); and
WHEREAS, Declarant, under this Declaration, intends, declares and covenants that the
restrictive covenants set forth herein governing the use, occupancy and transfer of the Project
shall be and are covenants running with the Property for the Term stated herein and binding upon
all subsequent owners of the Property for such Term, and are not merely personal covenants of
Declarant.
NOW, THEREFORE, said Declarant makes the following Declaration, hereby specifying
that said Declaration shall constitute covenants to run with the land and shall be binding on all
parties in interest and their successors and assigns:
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Article I
OCCUPANCY, INCOME AND RENT RESTRICTIONS
Section 1.1 Declarant shall lease at least [_____(__)] of the Affordable Units only to
individuals or households whose gross annual income is sixty percent (60%) or less of the area
median income (including adjustments for family size) , as determined by the U.S. Department
of Housing and Urban Development’s (“HUD”) Area Median Income for the Minneapolis-Saint
Paul-Bloomington Metropolitan Statistical Area (“AMI”) and at least [_____(__)] of the
Affordable Units only to individuals or households whose gross annual income is fifty percent
(50%) or less of the AMI (each a “Qualified Household”).
Section 1.2 The Affordable Units shall bear annual rents not greater than the rental
rate limits for such Qualified Households (adjusted for bedroom count and including utilities) as
published by HUD (and reflected in the City’s Affordable Housing Policy), as such rental rate
limits are updated annually by HUD (and if HUD ceases to publish and update such rates, such
annual rents for the Affordable Units shall not be not greater than thirty percent (30%) of sixty
percent (60%) of AMI or thirty percent (30%) of fifty percent (50%) of AMI, as the case may be
with respect to the applicable Qualified Household, less the monthly allowance for utilities and
services to be paid by the tenant).
Section 1.3 Declarant covenants and agrees that the two-bedroom Affordable Units
will be leased to Qualified Household consisting of at least two (2) individuals.
Section 1.4 Declarant covenants and agrees that no tenant household will be approved
by Declarant for initial occupancy of an Affordable Unit unless and until Declarant shall have
determined (through verification of income, assets, expenses, and deductions) whether such
tenant household is a Qualified Household. Declarant must re-examine and verify the income of
each tenant household living in an Affordable Unit at least annually.
Section 1.5 Residential units of the Project shall qualify as Affordable Units despite
temporary noncompliance with this Article I if the noncompliance is caused by increases in the
incomes of existing tenant household and if actions satisfactory to the Authority are being taken
to ensure that all vacancies are filled in accordance with this Article I until the noncompliance is
corrected.
Article II
ADDITIONAL REPRESENTATIONS, COVENANTS, AND WARRANTIES OF
DECLARANT
Section 2.1 Declarant shall maintain (a) the Affordable Units with the level of finishes
and amenities described in Section 9.6(a) of the Contract and (b) the Project in compliance with
all requirements of the Contract, any requirements of any lender whose loan is secured by a
mortgage to which Declarant is a party or by which it or the Project is bound, and applicable
ordinances, building and use restrictions, code-required building permits, and any requirements
with respect to licenses, permits, and agreements necessary for the lawful use and operation of
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the Project.
Section 2.2 The execution and performance of this Declaration by Declarant (i) will
not violate or, as applicable, have not violated any provision of law, rule or regulation, or any
order of any court or other agency or governmental body, and (ii) will not violate or, as
applicable, have not violated any provision of any indenture, agreement, mortgage, mortgage
note, or other instrument to which Declarant is a party or by which it or the Project is bound, and
(iii) will not result in the creation or imposition of any prohibited encumbrance of any nature.
Section 2.3 Developer shall not refuse to lease an Affordable Unit to the holder of a
voucher or certificate of eligibility under Section 8 of the United States Housing Act of I937
solely because of the status of the prospective tenant as such a holder.
Section 2.4 Declarant shall obtain the consent to this Declaration of any prior recorded
lien-holder for the Project and shall cause such liens to be subordinated to this Declaration.
Section 2.5 Declarant has not and will not execute any other agreement with
provisions contradictory to, or in opposition to, the provisions hereof and that, in any event, the
requirements of this Declaration are paramount and controlling as to the rights and obligations
set forth herein and supersede any other document's provisions in conflict herewith.
Section 2.6 Subject to the terms and conditions of the Contract, Declarant may sell,
transfer or exchange the Project, the Property or any portion thereof, but Declarant shall notify
the Authority and City in writing at least thirty (30) days prior to such sale, transfer or exchange,
and use commercially reasonable efforts to obtain the acknowledgment of any buyer or successor
or other person acquiring the Project or any interest therein that such acquisition is subject to the
covenants and restrictions of this Declaration (and to the requirements of Contract incorporated
herein). Failure by Declarant to obtain such acknowledgment shall not be deemed to impair the
covenants and restrictions of this Declaration.
Section 2.7 Declarant shall not demolish any part of the Project or substantially
subtract from any real or personal property of the Project or permit the use of any residential unit
for any purpose other than rental housing during the Term of this Declaration unless required by
law.
Section 2.8 Promptly upon any casualty loss or damage to all or any part of the Project
(including subsurface structural support elements), Declarant shall proceed with diligence to
restore the Project to the condition prior to the casualty with the insurance proceeds obtained
with respect to the loss or damage to the extent the insurance proceeds recovered allow for such
rebuilding; provided, however, Declarant shall not be obligated to rebuild the Project if any of
Declarant’s lenders or loan agreements (whether executed before or after the date hereof) do not
permit such rebuilding or require that insurance amounts recovered with respect to any loss or
damage to the Project be paid directly to the lender.
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Article III
ENFORCEMENT OF COVENANTS AND RESTRICTIONS
Section 3.1 Declarant shall submit a rent roll, including the income and household size
of the tenants of the Affordable Units, and the proposed rent schedule to Authority annually for
approval on the basis of compliance with this Article I, with an initial deadline for submission of
three (3) months following the Commencement Date and thereafter an annual deadline for
submission of September 1st for the Term of this Declaration.
Section 3.2 Declarant shall permit, during normal business hours and upon reasonable
notice, any duly authorized representative of the Authority or City, to inspect any books and
records of Declarant regarding the Project with respect to the incomes of tenant households of
Affordable Units the rents charged for Affordable Units to ensure compliance with the
requirements of this Declaration.
Section 3.3 At the Authority’s request, Declarant will submit any other information,
documents or certifications that Declarant, in its reasonable discretion, deems necessary to
substantiate Declarant’s compliance with the requirements of this Declaration.
Article IV
TERM
Section 4.1 This Declaration, and the covenants and restrictions contained herein,
shall continue in full force and effect for a period (the “Term”) commencing on the date a
Certificate of Completion is issued by the Authority for the South Site Vertical Improvements
(“Commencement Date”) and ending on the fifteen (15) year anniversary of the Commencement
Date.
Section 4.2 Declarant’s obligation to operate the Project subject to this Declaration for
the Term is independent of the existence and continuance of any TIF Note and other public
assistance contemplated or given by the Authority or the City to Declarant under the Contract
(“Public Assistance”) or any loan given by the Authority to Declarant through the Authority’s
Edina Affordable Housing Fund (“EAHF Loan”). The provisions of this Declaration are intended
to survive the termination or extinguishment of any Public Assistance or EAHF Loan, any
mortgage securing the same, and any other security instruments placed of record in connection
with the Public Assistance or EAHF Loan and to survive the termination of any subsequent
financing or security instruments placed of record by other lenders. This Declaration
automatically ceases to be of any force or effect on the date fifteen (15) year anniversary of the
Commencement Date without the execution or recording of any additional documents
Article V
REPRESENTATIVES OF BENEFITED PARTIES
Section 5.1 The Authority and the City are designated as the sole and exclusive
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representative(s) of any and all other persons or entities also benefited by the covenants,
conditions and restrictions of this Declaration, insofar as the enforcement, the construction, the
interpretation, the amendment, the release and/or the termination of such covenants, conditions
and restrictions are concerned. This designation and appointment shall also run with the Property
and the Project and is hereby made and agreed to by Declarant, its successors and assigns, and
any subsequent transferee of any interest in the Project, or any part thereof, from Declarant.
Article VI
REMEDIES, ENFORCEABILITY
Section 6.1 In the event of a violation or attempted violation of any of the covenants,
conditions or restrictions herein contained, the Authority or the City may institute and prosecute
any proceeding at law or in equity to abate, prevent or enjoin any such violation or to specifically
enforce the covenants, conditions and restrictions therein set forth, or to recover monetary
damages caused by such violation or attempted violation. Unless terminated as provided herein,
the provisions hereof are imposed upon and made applicable to the Project, and shall be
enforceable against Declarant, each purchaser, grantee, owner or lessee of the Project and the
respective heirs, legal representatives, successors and assigns of each. No delay in enforcing the
provisions of said covenants, conditions and restrictions as to any breach or violation shall
impair, damage or waive the right to enforce the same or to obtain relief against or recover for
the continuation or repetition of such breach or violation or any similar breach or violation
thereof at any later time or times.
Article VII
AMENDMENT, TERMINATION OF COVENANTS
Section 7.1 The provisions of this Declaration shall not be amended, terminated or
deleted during the Term hereof, except by an instrument in writing duly executed by the
Authority, the City, and Declarant, their respective successors and assigns, or in accordance with
Section 7.2 of this Article VII.
Section 7.2 Unless sooner terminated, amended or deleted as provided in this Article
VII, the covenants, conditions and restrictions contained herein shall continue in full force and
effect through the Term hereof and shall thereupon terminate and be of no further force or effect.
Article VIII
COVENANTS RUNNING WITH THE LAND
Section 8.1 Declarant intends, declares and covenants, on behalf of itself and all future
owners and operators of the Property and the Project during the Term of this Declaration, that
this Declaration and the covenants and restrictions set forth in this Declaration regulating and
restricting the use, occupancy and transfer of the Property and the Project (i) shall be and are
covenants running with the Property and the Project, encumbering the Property and the Project
for the Term of this Declaration, binding upon Declarant’s successors in title and all subsequent
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owners and operators of the Property and the Project; (ii) are not merely personal covenants of
Declarant; and (iii) shall bind Declarant (and the benefits shall inure to the Authority and the
City) and its respective successors and assigns during the Term of this Declaration. Declarant
hereby agrees that any and all requirements of the laws of the State of Minnesota to be satisfied
in order for the provisions of this Declaration to constitute deed restrictions and covenants
running with the land shall be deemed to be satisfied in full and that any requirements of
privileges of estate are intended to be satisfied, or in the alternate, that an equitable servitude has
been created to insure that these restrictions run with the land. For the Term of this Declaration,
each and every contract, deed or other instrument hereafter executed conveying the Property and
the Project or portion thereof shall expressly provide that such conveyance is subject to this
Declaration; provided, however, that the covenants contained herein shall survive and be
effective regardless of whether such contract, deed or other instrument hereafter executed
conveying the Property and the Project or portion thereof provides that such conveyance is
subject to this Declaration.
Article IX
MISCELLANEOUS
Section 9.1 Except as otherwise expressly provided in this Declaration, a notice,
demand or other communication under this Declaration by any party to any 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 in the case of Declarant, is addressed to or
delivered personally to Declarant at:
Edina Market Street LLC
Attention: Peter Deanovic
5100 Eden Ave., Suite 317
Edina, MN 55424
with a copy to: Brent Rogers
Saturday Properties
1400 Van Buren St. NE, Suite 200
Minneapolis, MN 55413
with a copy to: Daniel J. Van Dyk
Briggs and Morgan, P.A.
80 South Eighth Street, Suite 2200
Minneapolis, MN 55402
In the case of the Authority, is addressed to or delivered personally to the Authority at:
Edina Housing and Redevelopment Authority
Attention: Executive Director
4801 W. 50th ST.
Edina, MN 55424
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with a copy to: Jay R. Lindgren
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402
In the case of the City, is addressed to or delivered personally to the City at:
City of Edina
Attention: City Manager
4801 W. 50th ST.
Edina, MN 55424
with a copy to: Jay R. Lindgren
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402
or at such other address with respect to any such party as that party may, from time to time,
designate in writing and forward to the other, as provided in this Section.
Section 9.2 This Declaration will be governed and construed in accordance with the
laws of the State of Minnesota.
Section 9.3 If any provisions hereof shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining portions shall not in any way be affected or
impaired.
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IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed as of
the date first written above
EDINA MARKET STREET LLC,
a Minnesota limited liability company
By: ______________________________
Its: ______________________________
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ___ day of ______, 201__,
by ________, the _________________ of Edina Market Street LLC, a Minnesota limited
liability company, on behalf of the limited liability company.
_______________________________________
Notary Public
THIS DOCUMENT WAS DRAFTED BY:
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402-1498
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Exhibit A to
Declaration of Covenants and Restrictions
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
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[Signature Page to Easement and Maintenance Agreement
(Market Street Trash Facility)]
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CONSENT AND SUBORDINATION
The undersigned, ___________________, a ___________________, holder of that
certain [Mortgage] executed by Edina Market Street LLC, a Minnesota limited liability company,
dated ________________, 201__, filed ________________, 201__, as Document
No. ___________, in the office of the County Recorder in and for Hennepin County, Minnesota,
and filed ________________, 201__, as Document No. ___________, in the office of the
Registrar of Titles in and for Hennepin County, Minnesota, in favor of ________________ (the
“Mortgage”), hereby consents to the foregoing Declaration of Covenants and Restrictions (the
“Declaration”), and hereby subordinates the Mortgage and all of its right, title and interest in the
Property to the Declaration.
___________________________________,
a ___________________
By: ______________________________________
Printed Name: _____________________________
Title: _____________________________________
STATE OF ___________________ )
) ss.
COUNTY OF _________________ )
The foregoing instrument was acknowledged before me this ____ day of ____________,
201___, by ____________________, the _________________ of ___________________, a
___________________, on behalf of the ___________________.
__________________________________________
(Signature of Person Taking Acknowledgment)
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EXHIBIT M
Affordable Housing Loan Agreement
AFFORDABLE HOUSING LOAN AGREEMENT
(Market Street – Edina Affordable Housing Fund)
THIS LOAN AGREEMENT (this “Agreement”) is made and entered into this ___ day
of ____________, 201___ (“Effective Date”), by and between the HOUSING AND
REDEVELOPMENT AUTHORITY OF THE CITY OF EDINA, MINNESOTA, a public body
corporate and politic organized and existing under the laws of the State of Minnesota (the
“Authority”), and EDINA MARKET STREET LLC, a Minnesota limited liability company (the
“Developer”).
RECITALS
WHEREAS the City of Edina, Minnesota, a Minnesota statutory city (the “City”), the
Authority, and the Developer have entered into a Redevelopment Agreement (as amended, the
“Contract”) dated June 27, 2017; and
WHEREAS, such Contract is intended to provide for the redevelopment of certain land
within the City’s 50th & France District located on Market Street (formerly known as 49 1/2
Street) by the Developer in coordination with the Authority and with the cooperation and
assistance of City (the “Market Street Project”), and
WHEREAS, the Contract provides for the expenditure of public and other funds to assist
in the redevelopment of the Market Street Project and to pay for certain Minimum
Improvements, which include, without limitation, an approximately 100 unit apartment building
to be located on the real property described on Exhibit A attached hereto (the “Project”, and
referred to as the “Apartment Element” in the Contract); and
WHEREAS, pursuant to the Contract and the City’s affordable housing policy, the
Developer has agreed that at least ten percent (10%) of the residential units within the Apartment
Element (the “Affordable Units”) will remain affordable to certain low-income persons and
households in accordance with the terms and conditions set forth in the Contract and that certain
Affordability Covenant (as defined and set forth in the Contract) (“Affordability Requirements”);
and
WHEREAS, the Authority has created the Edina Affordable Housing Fund (the “EAHF
Fund”), for the purpose of expanding the supply of safe, decent, sanitary housing for low-income
households and individuals in the city of Edina; and
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WHEREAS, the Developer has represented, and the Authority has acknowledged, that
there is a financing gap for the Minimum Improvements related to the Affordability
Requirements (the “Affordable Housing Gap”), and the Authority has agreed to fund up to
$1,500,000.00 of the Affordable Housing Gap with a fifteen (15) year loan to the Developer from
the EAHF Fund pursuant to the terms of this Agreement; and
WHEREAS, the Authority is authorized and empowered to enter into this Agreement by
Minnesota Statutes§§ 469.001 to 469.047 and 469.192, and other applicable law.
WHEREAS, all capitalized terms used herein without definition shall have the respective
meanings ascribed to them in the Contract.
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 others as follows:
AGREEMENT
1. Project Requirements. Declarant shall construct, maintain, lease, and operate the
Project and the Affordable Units in accordance with and in the manner required under the
Contract and the Affordability Covenant, as the same may be amended from time to time.
2. Loan. The Authority will lend to the Developer, and Developer will borrow from
the Authority, EAHF Funds in an amount equal to One Million Five Hundred Thousand Dollars
and No/100 ($1,500,000.00) in the form of a deferred loan (the “Loan”) to enable the Developer
to fund all or part of the Affordable Housing Gap, subject to the following provisions:
(a) Developer agrees to repay the Loan together with interest at a fixed,
simple annual interest rate equal to the lesser of (i) one percent (1%) plus an amount
equal to the average of the annual inflation rate (based on the Consumer Price Index) for
each calendar year in which all or part of the Loan remains outstanding (except the
calendar year in which the Loan is repaid in full) and (ii) two and one-half percent (2.5%)
on the outstanding principal balance of the Loan following the date of disbursement of
the Loan (the “Disbursement Date”) until the Loan is repaid in full. For purposes of this
Agreement “Consumer Price Index” means the consumer price index which is designated
for the applicable year of determination as the United States City Average for All Urban
Consumers, All Items, Not Seasonally Adjusted, with a base period equaling 100 in
1982 - 1984, as published by the United States Department of Labor’s Bureau of Labor
Statistics or any successor agency.
(b) Developer agrees to pay annual interest payments on each anniversary
date of the Disbursement Date in an amount equal to one percent (1%) per annum simple
interest on the outstanding principal balance of the Loan. On the Maturity Date, or such
earlier date that Developer re-pays in full the principal of the Loan, the annual interest
rate will be calculated in accordance with Section 2(a) above, and the Developer agrees
to pay all remaining accrued interest in full together with the outstanding principal
balance of the Loan .
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(c) The principal of the Loan, together with any accrued but unpaid interest
shall be repaid no later than the date that is the fifteenth (15th) anniversary of the
Disbursement Date (“Maturity Date”).
(d) All such interest and principal payments shall be made by the Developer
in immediately available funds and without notice, demand or offset. If all or any portion
of any payment (including any payment of interest or principal) required hereunder is not
paid within thirty (30) days after the date such payment is due, the Developer shall pay a
late charge equal to four percent (4%) of the amount of such unpaid payment.
3. Loan Disbursement. The Authority’s obligation to disburse the proceeds of the
Loan shall be subject to the prior fulfillment of the following conditions:
(a) There shall not be an uncured “Event of Default” (as defined below) under
this Agreement.
(b) The City has issued the Developer a Certificate of Completion for the
South Site Vertical Improvements.
(c) The Developer has provided the Authority:
(i) A current TIF Pro Forma if there are any material changes to the
TIF Pro Forma reviewed by the Authority as of the date of this Agreement that
reduce the Affordable Housing Gap or, if there are no such material changes, a
certificate from the Developer stating that there are no material changes to the TIF
Pro Forma that reduces the Affordable Housing Gap.
(ii) A pro forma ALTA mortgagee’s title insurance policy (ALTA
Loan Policy 2006 Loan Policy of Title Insurance, or equivalent, or other form
satisfactory to Bank), with such endorsements as the Authority may require,
issued by the Escrow Agent in the amount of the Loan insuring the lien of the
Mortgage, including insuring against any lien claims that could arise out of the
construction of the Project.
(iii) A draw request with an itemized payee list including a summary of
all invoices included in the draw request, or other evidence, reasonably acceptable
to the Authority, that Loan will be used to pay for Developer’s construction or
other related development costs which have been incurred and relate to the
construction of the Project.
(iv) Copies of the Loan Documents (as defined below) duly executed
by the Developer.
4. Loan Security. The Developer agrees to execute (together with this Agreement,
collectively the “Loan Documents”) (a) a Promissory Note in the amount of the Loan (the
“Note”); (b) to secure the Note, a Combination Mortgage, Assignment of Rents, Security
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Agreement, and Fixture Financing Statement (the “Mortgage”) to be filed with the Hennepin
County Recorder and/or Registrar of Titles, as applicable, giving the Authority a lien on the
Project that is subordinate to the lien of any construction or other financing the Developer
obtains to fund development of the Project; (c) and the Affordability Covenant, which will be
filed with the Hennepin County Recorder and/or Registrar of Titles, as applicable,. The
Developer, for itself and for its successors and/or its assigns, further agrees and consents to the
filing of such security instruments in the appropriate Hennepin County land records if necessary
to protect the interest of the Authority in the Project as described in this Agreement. The
Authority agrees, in exchange for the lien rights specified in (a) above, to execute an
intercreditor agreement with the Developer’s other lenders, in the form required by such lenders,
specifying the subordinate nature of the Authority’s lien.
5. Records and Reports: Monitoring The Developer shall submit a rent roll,
including the income and household size of the tenants of the Affordable Units, and the proposed
rent schedule to City annually for approval on the basis of the Affordability Covenant, with an
initial deadline for submission of three (3) months following the Disbursement Date and
thereafter an annual deadline for submission of September 1st for the term of this Agreement.
The Developer shall maintain records for the receipt and expenditure of all Loan proceeds. All of
the Developer’s records that relate to the Loan shall be made available for inspection and
copying upon request of the Authority during normal business hours. The Authority shall have
the right to review any and all procedures, including property management agreements, and all
materials, notices, documents, etc., prepared by the Developer to perform its obligations under
this Agreement and the Developer agrees to provide all pertinent information required by any
person authorized by the Authority to request such information from the Developer for the
purpose of reviewing the same. The Authority shall review the performance of the Developer, its
subcontractors, and owners of rental housing assisted with Loan proceeds to assess the
Developer’s compliance with the terms and conditions of this Agreement. The results of such
review will be of public record.
6. Encumbrance; Assignment. Except in connection with [insert description of
senior debt] and leasing all or part of the Project to tenants in the ordinary course of business, the
Developer shall not assign, subcontract, transfer, or pledge this Agreement and/or its obligations
hereunder, whether in whole or in part, without the prior written consent of the Authority, which
consent the Authority will not unreasonably withhold, condition or delay.
7. Indemnification. The Developer agrees to defend, indemnify, and hold harmless
the Authority, its elected officials, officers, agents, and employees from any liability, claims,
causes of action, judgments, damages, losses, costs, or expenses, including reasonable attorney’s
fees, resulting directly from any negligent act or omission or willful misconduct of the
Developer, its officers, agents, employees or contractors, and/or anyone for whose act, omission,
they may be liable in the performance of the activities required by this Agreement, and against
all loss suffered by the Authority by reason of the failure of the Developer to perform fully, in
any respect, all obligations under this Agreement.
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8. Insurance. In order to protect the Developer and those listed above under the
indemnification provisions, the Developer agrees at all times during the term of this Agreement
and beyond such term when so requested by the Authority, to keep in force the insurance
coverage required to be carried by Developer under the Contract.
9. Housing Qualify Standards and Property Requirements. The Developer shall
maintain the Project, at a minimum, to meet the U.S. Department of Housing and Urban
Development’s Housing Quality Standards, and maintain compliance with all applicable
ordinances, building and use restrictions, code-required building permits, and any requirements
with respect to licenses, permits, and agreements necessary for the lawful use and operation of
the Project for the duration of this Agreement.
10. Equal Opportunity and Fair Housing. The Developer shall comply with all
federal laws, executive orders, and implementing rules and regulations set forth to ensure that no
person shall on the grounds of race, color, national origin, religion, handicap, familial status, or
sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity funded in whole or in part with Loan proceeds.
11. City Policy on Affirmative Action and Equal Opportunity. In accordance with
the City’s policies against discrimination, no person shall be excluded from full employment
rights or participation in or the benefits of any program, service, or activity on the grounds of
race, color, creed, religion, age, sex, disability, marital status, sexual orientation, public
assistance status, or national origin; and no person who is protected by applicable federal or state
laws, rules, or regulations against discrimination shall be otherwise subjected to discrimination.
12. Non-Discrimination Based on Disability. When and where applicable, the
Developer shall comply with, and make commercially reasonable efforts to have its third party
providers comply with, Public Law 101-336 Americans with Disabilities Act of 1990, Title I
“Employment,” Title II “Public Services” - Subtitle A, and Title III “Public Accommodations
and Services Operated by Private Entities” and all ensuing federal regulations implementing said
Act.
13. Events of Default. Any of the following shall constitute an “Event of Default”
hereunder and shall entitle the Authority to exercise its rights and remedies under Section 16:
(a) If the Developer (i) fails to make any payment of principal or interest
required to be paid under this Agreement within ten (10) days following notice from the
Authority that payment is past due or (ii) fails to perform any other obligation required to
be performed under this Agreement within thirty (30) days following notice from the
Authority that the date of performance is past due; or
(b) If the Developer fails to perform or observe any condition or covenant
relating to any indebtedness that is secured with a lien that is prior to the Authority’s lien
on the Project if the effect of such failure is to cause, or permit the holder or holders of
such indebtedness to cause such indebtedness to be declared due and payable prior to its
stated maturity and to foreclose its lien;
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(c) A Default under the Contract, subject to applicable Cure Rights and
Unavoidable Delays (each as defined in the Contract);
(d) A violation of the Affordability Covenant;
(e) If the Developer uses any portion of the proceeds of the Loan, or any
interest or earnings thereon, other than in a manner specifically authorized in this
Agreement;
(f) If the Developer shall admit in writing its inability to pay its debts as they
mature; or
(g) If the Developer shall be adjudicated a bankrupt or insolvent, and such
adjudication shall continue undischarged or unstayed for a period of thirty (30) days; or
the Developer shall make an assignment for the benefit of creditors; or the Developer
shall apply for or consent to the appointment of any receiver, trustee, or similar officer
for it or for all or any substantial part of its property; or such receiver, trustee or similar
officer shall be appointed without the application or consent of the Developer, as the case
may be, and such appointment shall continue undischarged for a period of thirty (30)
days.
14. Rights and Remedies. Upon the occurrence of an Event of Default, the Authority
may exercise any or all of the following rights and remedies, consecutively or simultaneously,
and in any order:
(a) The interest rate on the Note shall thereafter increase and shall be payable
on the whole of the unpaid principal balance at a rate equal to six percent (6%) per
annum simple interest (hereinafter referred to as the “Default Rate”), which Default Rate
shall be automatically effective as of the date of the occurrence of such Event of Default
but shall be reduced to the interest rate described in Section 3 of this Agreement when the
Developer cures the Event of Default.
(b) Suspend or terminate the obligation of the Authority to make advances of
the Loan without notice to the Developer;
(c) Declare the entire unpaid principal balance of the Note to be immediately
due and payable, together with accrued and unpaid interest thereon, without notice to or
demand on the Developer; or
(d) Exercise any or all remedies specified herein and in the other Loan
Documents, including (without limiting the generality of the foregoing) the right to
foreclose the Mortgage, and any other remedies which the Authority may have therefor at
law, in equity or under statute.
15. Amendments. Except as otherwise herein provided, and not otherwise, no
subsequent alteration, amendment, change, waiver, discharge, termination, deletion, or addition
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to this Agreement shall be binding upon the parties to this Agreement unless in writing and
signed by such parties.
16. Notices and Demands. Except as otherwise expressly provided in this
Agreement, a notice, demand or other communication under this Agreement by any party to any
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 in the case of the
Developer, is addressed to or delivered personally to the Developer at:
Edina Market Street LLC
Attention: Peter Deanovic
5100 Eden Ave., Suite 317
Edina, MN 55424
with a copy to: Brent Rogers
Saturday Properties
1400 Van Buren St. NE, Suite 200
Minneapolis, MN 55413
with a copy to: Patrick E. Mascia
Briggs and Morgan, P.A.
80 South Eighth Street, Suite 2200
Minneapolis, MN 55402
In the case of the Authority, is addressed to or delivered personally to the Authority at:
Edina Housing and Redevelopment Authority
Attention: Executive Director
4801 W. 50th ST.
Edina, MN 55424
with a copy to: City of Edina
Attention: City Manager
4801 W. 50th ST.
Edina, MN 55424
with a copy to: Jay R. Lindgren
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402
or at such other address with respect to any such party as that party may, from time to time,
designate in writing and forward to the other, as provided in this Section.
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17. Attorneys’ Fees. In the event either the Developer or the Authority commences a
legal action to enforce the provisions of this Agreement, the prevailing party in such action shall
be entitled, as a part of said action, to recover all its costs and expenses, including reasonable
attorneys' fees.
18. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall constitute one and the same instrument.
19. Law Governing. This Agreement will be governed and construed in accordance
with the laws of the State of Minnesota.
20. Consents and Approvals. In all cases where consents or approvals are required
hereunder, such consents or approvals shall not be unreasonably conditioned, delayed or
withheld. All consents or approvals shall be in writing in order to be effective.
21. No Additional Waiver Implied by One Waiver. If any agreement contained in
this Agreement should be breached by any party and thereafter waived by another party, such
waiver shall be limited to the particular breach so waived and shall not be deemed to waive any
other concurrent, previous or subsequent breach hereunder.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the Authority and the Developer have caused this
Agreement to be duly executed in their names and on their behalf, all on or as of the date first
above written.
AUTHORITY:
HOUSING AND REDEVELOPMENT
AUTHORITY OF THE CITY OF EDINA,
MINNESOTA
By: ________________________________
Chair
By: ________________________________
Executive Director
DEVELOPER:
EDINA MARKET STREET LLC,
a Minnesota limited liability company
By: _______________________________
Its: ______________________________
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EXHIBIT A
LEGAL DESCRIPTION OF THE PREMISES