HomeMy WebLinkAbout2024-05-16 HRA Regular Meeting PacketAg enda
E dina H ousing and R edevelopm ent Author ity
City of E dina, Minnesota
City Council Chambers
Thur sday, May 16, 2024
7:30 AM
Watch the m eeting on cable TV or at EdinaMN.gov/LiveMeeting s or
Facebook.com /EdinaMN.
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I.Call to Ord er
II.Roll Call
III.Pledge of Allegia n ce
IV.Ap p roval of Meetin g Agen d a
V.Com m unity Com m en t
Du ring "Com m unity Com m en t," th e Edin a Housing and Redevelop m ent
Au thority (HRA) will in vite resid ents to sh are new issues or con cern s tha t
h aven't been con sid ered in th e p ast 30 da y s b y th e HRA or w h ich a ren't
slated for fu ture consideration . Individ u als m u st lim it their com m ents to
three m inutes. Th e Ch air m a y lim it the num ber of sp ea kers on th e sa m e
issue in th e interest of tim e a n d topic. Gen era lly sp ea king, item s tha t are
elsewhere on tod ay's a genda m a y not b e addressed d u ring Com m unity
Com m en t. In d ividua ls sh ould not expect th e Ch air or Com m issioners to
resp ond to th eir com m en ts toda y . Instead the Com m issioners m ight refer the
m atter to sta. for consideration a t a fu ture m eeting.
A.E xecu tive Director's Resp onse to Com m u n ity Com m ents
VI.Ad option of Con sen t Agenda
All a genda item s listed on the consent a genda a re con sid ered rou tin e and
will be en acted by one m otion. There will be no sepa rate d iscussion of such
item s unless requested to be rem oved from the Con sen t Agenda by a
Com m ission er of the HRA. In su ch ca ses the item w ill b e rem oved from th e
Consent Agen d a and con sid ered im m ediately follow ing the a d option of th e
Consent Agen d a. (Fa vorable rollcall vote of m a jority of Com m issioners
p resent to approve.)
A.Dra ft Min u tes of Regular Meeting on Ma rch 14, 2024
B.Req u est for Purch ase: W est 50th Street & Gra n ge Roa d Con stru ction
Adm in istra tion Services
VII.Reports/Recom m enda tions: (Favora b le vote of m ajority of Com m ission ers
p resent to approve excep t where n oted)
A.Approve Gra n t Agreem ent w ith Oh Crep e LLC
B.Approve Gra n t Agreem ent w ith Arbor Sunnyside Properties LLC
C.5146 Eden Avenue - Housing Request for Proposa ls
VIII.Executive Director's Com m ents
A.Business Subsidy Policy
B.TIF Special Legisla tion
C.E d ina In n ovation La b - statu s u p d ate
IX.HRA Com m issioners' Com m en ts
X.Ad jou rn m ent
Th e E d ina Housing a n d Redevelop m ent Au thority wa n ts all pa rticip ants to be
com fortable b ein g pa rt of th e p u b lic p rocess. If y ou n ee d a ssista n ce in the w a y of
h ea ring am pli@ca tion, a n in terp reter, large-p rint docum en ts or som ethin g else,
p lease ca ll 952-927-8861 72 hou rs in advance of the m eeting.
Date: May 16, 2024 Agenda Item #: V.A.
To:C hair & C ommis s ioners of the Edina HR A Item Type:
F rom:
Item Activity:
Subject:Exec utive Director's R espons e to C ommunity
C omments
Edina Housing and Redevelopment
Authority
Established 1974
C ITY O F E D IN A
HO US I NG & R EDEVELO P MENT
AUT HO R I T Y
4801 West 50th Street
Edina, MN 55424
www.edinamn.gov
A C TI O N R EQ U ES TED:
I N TR O D U C TI O N:
Date: May 16, 2024 Agenda Item #: VI.A.
To:C hair & C ommis s ioners of the Edina HR A Item Type:
Minutes
F rom:Liz O ls on, P lanning Adminis trative S upport S pec ialis t
Item Activity:
Subject:Draft Minutes of R egular Meeting on Marc h 14, 2024 Action
Edina Housing and Redevelopment
Authority
Established 1974
C ITY O F E D IN A
HO US I NG & R EDEVELO P MENT
AUT HO 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 minutes.
I N TR O D U C TI O N:
AT TAC HME N T S:
Description
March 14, 2024 Minutes
Page 1
MINUTES
OF THE REGULAR MEETING OF THE
EDINA HOUSING AND REDEVELOPMENT AUTHORITY
MARCH 14, 2024
7:30 A.M.
I. CALL TO ORDER
Chair Hovland called the meeting to order at 7:31 a.m. then explained the processes created for
public comment.
II. ROLLCALL
Answering rollcall were Chair Hovland, Commissioners Agnew, Jackson, Pierce, and Risser.
Absent: Chair Hovland.
III. PLEDGE OF ALLEGIANCE
IV. MEETING AGENDA APPROVED - AS PRESENTED
Motion by Commissioner Jackson, seconded by Commissioner Pierce, approving the
meeting agenda as presented.
Ayes: Agnew, Jackson, Pierce, Risser, and Hovland
Motion carried.
V. COMMUNITY COMMENT
No one appeared.
V.A. EXECUTIVE DIRECTOR’S RESPONSE TO COMMUNITY COMMENTS
Executive Director Neal responded to past Community Comments.
VI. ADOPTION OF CONSENT AGENDA AS PRESENTED
Motion by Commissioner Jackson, seconded by Commissioner Pierce, approving the
consent agenda as presented:
VI.A. DRAFT MINUTES OF REGULAR MEETING OF FEBRUARY 15, 2024
VI.B. REQUEST FOR PURCHASE; ENG 24-5 50TH STREET AND GRANGE ROAD
IMPROVEMENTS
Ayes: Agnew, Jackson, Pierce, Risser, and Hovland
Motion carried.
VII. REPORTS AND RECOMMENDATIONS
VII.A. MOTION TO CLOSE SESSION: AS PERMITTED BY MS. 13D.05 SUBDIVISION 3
TO DISCUSS THE POTENTIAL SALE OF REAL PROPERTY LOCATED AT 5146
EDEN AVENUE - APPROVED
Motion by Commissioner Jackson, seconded by Commissioner Agnew, to move into
closed session as permitted by MS. 13D.05 subdivision 3 to discuss the potential sale of
real property located at 5146 Eden Avenue.
Ayes: Agnew, Jackson, Pierce, Risser, and Hovland
Motion carried.
VII.B. MOTION TO MOVE BACK INTO OPEN SESSION – APPROVED
Motion by Commissioner Agnew, seconded by Commissioner Jackson, to move back
into open session at 8:05 a.m.
Ayes: Agnew, Jackson, Pierce, Risser, and Hovland
Motion carried.
Minutes/HRA/March 15, 2024
Page 2
The Board shared the HRA had previously entered into a Purchase Agreement with United
Properties Residential to develop a 90-unit senior housing co-op on the southernmost portion of
property located at 5146 Eden Avenue. The remainder of the property would be developed with a
restaurant and public park/green space. Unfortunately, the senior cooperative was unable to attain
the required number of pre-sold units to qualify for HUD financing. Based on this condition, the
buyer terminated their purchase agreement in October 2023. The prospective buyer had submitted
an offer to modify the housing portion of the site with the intention of breaking ground in late 2024.
This revised purchase offer was discussed by the HRA Board during closed session and concluded
that the HRA was not in favor of continuing negotiations with United Properties for this purpose
and would continue to explore other options for this site.
Economic Development Manager Neuendorf shared possible alternatives as sellers of the site then
noted while the alternatives had not been fully vetted staff would use them to gauge what type of
outcomes the HRA was interested in exploring. He reviewed alternates that could be pursued that
included park/green space with space for arts, recreation, and small special events, stand-alone
restaurant as community destination, utilize existing public parking garage, perimeter sidewalks and
landscaping boulevards, for sale townhomes, market-rate rental apartments, affordable rental
apartments, senior cooperatives, height varieties, and land sale versus lease.
The Board asked questions and provided feedback.
Mr. Neuendorf summarized the Board’s direction to seek a new housing development partner for
timing in summer 2024, entitlements by fall, and construction planned for 2025.
VIII. EXECUTIVE DIRECTOR’S COMMENTS – Received
IX. HRA COMMISSIONER COMMENTS – Received
X. ADJOURNMENT
Motion made by Commissioner Agnew, seconded by Commissioner Jackson, to adjourn
the meeting at 8:34 a.m.
Ayes: Agnew, Jackson, Pierce, Risser, and Hovland
Motion carried.
Respectfully submitted,
Scott Neal, Executive Director
Date: May 16, 2024 Agenda Item #: VI.B.
To:C hair & C ommis s ioners of the Edina HR A Item Type:
F rom:C had A. Millner, P.E., Director of Engineering
Item Activity:
Subject:R equest for P urc hase: West 50th S treet & G range
R oad C ons truction Adminis tration S ervic es
Edina Housing and Redevelopment
Authority
Established 1974
C ITY O F E D IN A
HO US I NG & R EDEVELO P MENT
AUT HO 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 R equest for P urchase for West 50th S treet and G range Road Construction Administration Services with
S E H for $247,400.00.
I N TR O D U C TI O N:
T he H R A accepted T he East G randview Transportation Study associated with the redevelopment of 4917 Eden
Avenue (old P erkins site). T hat study identified improvements on E den Avenue, G range Road, and 50th S treet to
improve safety of cyclist and pedestrians along with improving traffic safety and operations. T his contract will
manage the construction along 50th S treet and G range Road. T his item was previously approved by the C ity
C ouncil.
AT TAC HME N T S:
Description
Request for Purchase: West 50th Street & Grange Road Construction Adminis tration Services
Construction Adminis tration Agreement
Request for Purchase
Contract Number
1
CITY OF EDINA
4801 W 50th St., Edina, MN 55424
www.EdinaMN.gov | 952-927-8861 12400097
Department: Engineering
Buyer: Chad Millner
Date: 03/19/2024
Requisition Description: 50th and Grange Construction Administration
Vendor: SHORT-ELLIOT-HENDRICKSON INCORPORATED
Cost: $247,400.00
REPLACEMENT or NEW: REPLACEMENT
PURCHASE SOURCE:SERVIC K - SERVICE CONTRACT
DESCRIPTION:
The HRA accepted The East Grandview Transportation Study associated with the redevelopment of 4917
Eden Avenue (old Perkins site). That study identified improvements on Eden Avenue, Grange Road, and
50th Street to improve safety of cyclist and pedestrians along with improving traffic safety and operations.
This contract will manage the construction along 50th Street and Grange Road.
This project is being constructed in 2024.
BUDGET IMPACT:
This project is funded by TIF funds collected from the Eden Grange TIF district created with the
redevelopment of 4917 Eden Avenue (old Perkins site).
2
COMMUNITY IMPACT:
These projects can meet many of the seven guiding principles such as enhance the district’s economic
viability, design for the present and the future by pursuing logical increments of change using key parcels as
stepping stones to a more vibrant, walkable, functional, attractive, and life-filled place, organize parking as an
effective resource for the district by linking community parking to public and private destinations while also
providing parking that is convenient for businesses and customers, improve movement within and access to
the district for people of all ages by facilitating multiple modes of transportation, and create an identity and
unique sense of place that incorporates natural spaces into a high quality and sustainable development
reflecting Edina’s innovative development heritage.
ENVIRONMENTAL IMPACT: NA Service Contract
Engineers | Architects | Planners | Scientists
Short Elliott Hendrickson Inc., 10650 Red Circle Drive, Suite 500, Minnetonka, MN 55343-9229
952.912.2600 | 800.734.6757 | 888.908.8166 fax | sehinc.com
SEH is 100% employee-owned | Affirmative Action–Equal Opportunity Employer
SUPPLEMENTAL LETTER AGREEMENT
March 18, 2024 RE: City of Edina
West 50th Street Improvements
Construction Administration
SEH No. EDINA 172776 10.00
Mr. Chad Millner, PE
Director of Engineering
City of Edina
Engineering and Public Works Facility
7450 Metro Boulevard
Edina, MN 55439
Dear Chad:
Short Elliott Hendrickson Inc. (SEH®) appreciates the opportunity to submit the attached proposal for
construction administration and observation services relative to the referenced project.
Project Understanding/Scope of Services
Our scope of work includes full construction administration, staking, and construction administration/
observation services in the following tasks:
1. Project Management
This task consists of general project management duties, such as managing internal teams,
schedule and budget, invoice management, pre-construction meeting, up to three on-site
coordination meetings with private utility companies, and general project correspondence.
2. Staking
SEH will create stakeout files for use by the contractor (if requested) and SEH surveyors.
Staking services provided include removals, erosion control, easements/right-of-way, water
main, storm sewer, retaining walls, curb and gutter, sidewalk, and blue tops for Class 5.
3. Construction Administration/Observation
This task includes four primary sub tasks:
a. Preconstruction Activities
- SEH will review shop drawings and contractor submittals and create a field quantity book
and application for payment forms. Also, includes the submittal of NPDES, MnDOT and
Hennepin County right-of-way and utility permits.
Mr. Chad Millner, PE
March 18, 2024
Page 2
b. Construction Administration
- We will prepare construction and contract documents, provide general engineering
support throughout construction, prepare applications for payment and change orders,
coordinate materials testing with the material testing consultant, prepare and upload City
project website updates, and coordinate private utility relocations. We will also attend
weekly on-site construction meetings (including preparation of meeting agenda and
minutes).
c. Construction Observation
- We will provide full-time construction observation services throughout construction.
d. Project Closeout
- SEH will provide project closeout services, including site closeout walkthrough,
development and coordination of punch list, as-built survey and structure measure
downs, as-built drawings, complete the final application for payment and project closeout
letter, complete remaining work coordination in 2025, and complete a 2-year warranty
walkthrough and coordination with the contractor.
Assumptions:
1. Assumes pre-construction meeting will be held in person at Edina City Hall.
2. Assumes up to 11 construction meetings will be held. Includes preparation of agenda and
minutes.
3. Full time construction observation services consist of 45 hours per week for 11 weeks of
construction (June 10 through substantial completion on August 23), then part time observation
of 20 hours per week for 7 weeks until final completion on October 11.
4. Does not include materials testing. Assumes the City of Edina will contract with a material testing
consultant directly. SEH will coordinate testing when needed with the selected consultant.
Fees, Billing & Estimated Project Costs
If accepted, this supplemental letter agreement describes how we will provide these services for a
not-to-exceed fee of $247,400.00. This amount is detailed in the table below and includes our
reimbursable expenses. We will bill the City monthly for reimbursable expenses and on an hourly
basis for labor. We will provide these services in accordance with our Agreement for Professional
Engineering Services dated June 4, 2013, herein called the Agreement.
Project Task Cost
Task 1: Project Management $8,426.00
Task 2: Staking $66,864.00
Task 3: Construction Services/Observation $172,110.00
Total Project Cost for Engineering Services $247,400.00
This Supplemental Letter Agreement and the Agreement represent the entire understanding
between the City of Edina and SEH in respect to the project and may only be modified in writing if
signed by both parties.
Mr. Chad Millner, PE
March 18, 2024
Page 3
We look forward to working with you and your staff on this project. Please contact me at
952.912.2633 or kmanzke@sehinc.com with questions regarding this proposal.
Sincerely,
SHORT ELLIOTT HENDRICKSON INC.
Kevin Manzke, PE (Lic. MN) Toby Muse, PE (Lic. MN)
Project Manager Client Service Manager
x:\ae\e\edina\172776\1-genl\10-setup-cont\03-proposal\construction phase services\sla ltr w 50th st ca.docx
Accepted on this ___day of________________, 2024
City of Edina, Minnesota
By: _________________________________
Name
_________________________________
Title
Date: May 16, 2024 Agenda Item #: VI I.A.
To:C hair & C ommis s ioners of the Edina HR A Item Type:
R eport / R ecommendation
F rom:Bill Neuendorf, Economic Development Manager
Item Activity:
Subject:Approve G rant Agreement with O h C repe LLC Ac tion
Edina Housing and Redevelopment
Authority
Established 1974
C ITY O F E D IN A
HO US I NG & R EDEVELO P MENT
AUT HO 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 grant agreement with Oh C repe L L C.
I N TR O D U C TI O N:
I n 2021, the H R A established the S PAR C Fund to support job creation and investment in Edina. T he S PAR C
S treamlined G rant P rogram is intended to provide grants up to $24,000 for re-occupancy of vacant commercial
spaces or expansion of commercial businesses.
T he first business to use this program is Oh C repe, L L C . T his new coffee shop and crepe bakery located at 4408
F rance Avenue will re-occupy the commercial storefront formerly occupied by Caribou C offee. T he space was
last remodeled prior to the adoption of the American with Disabilities Act (AD A) and the front entrance needs to
be remodeled in order to create an accessible entrance to the space.
S taff recommends approval of this G rant Agreement.
AT TAC HME N T S:
Description
grant agreement Oh Crepe LLC
Staff Pres entation
4867-7453-3306\3
GRANT AGREEMENT
Between
EDINA HOUSING AND REDEVELOPMENT AUTHORITY
And
OH CRÊPE! LLC
for the
COFFEE SHOP AND BAKERY COMMONLY KNOWN AS OH CRÊPE!
________________________
Dated as of May 16, 2024
________________________
i
4867-7453-3306\3
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ............................................................................................................1
1.01. Definitions................................................................................................................1
ARTICLE 2 REPRESENTATIONS AND WARRANTIES ...........................................................2
2.01. HRA Representations...............................................................................................2
2.02. Grantee Representations ..........................................................................................3
2.03. Use of Property ........................................................................................................3
2.04. Insurance; Vacating Facility ....................................................................................4
ARTICLE 3 THE PROJECT ...........................................................................................................4
3.01. Timing; Plans ...........................................................................................................4
3.02. Certificate of Completion ........................................................................................4
3.03. Progress Reports ......................................................................................................5
3.04. Access to Property ...................................................................................................5
3.05. Subordination ...........................................................................................................5
ARTICLE 4 DEFENSE OF CLAIMS; INSURANCE ....................................................................5
4.01. Defense of Claims ....................................................................................................5
ARTICLE 5 GRANT FOR REIMBURSEMENT OF EXPENSES ................................................7
5.01. Development Costs ..................................................................................................7
5.02. Grant. .......................................................................................................................7
5.03. Disbursement Request. ............................................................................................7
5.04. Satisfaction of Conditions Precedent .......................................................................8
5.05. Matching Investment ...............................................................................................8
5.06. Reserved ...................................................................................................................8
5.07. Notice of Default......................................................................................................8
5.08 Legal and Administrative Expenses.........................................................................9
ARTICLE 6 PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER ............................9
6.01. Transfer of Property and Assignment ......................................................................9
ARTICLE 7 EVENT OF DEFAULT; FEES ...................................................................................9
7.01. Events of Default .....................................................................................................9
7.02. Remedies on Default ................................................................................................9
7.03. No Remedy Exclusive............................................................................................10
7.04. Waivers ..................................................................................................................10
7.05. Agreement to Pay Attorneys’ Fees ........................................................................11
ii
4867-7453-3306\3
ARTICLE 8 GENERAL PROVISIONS .......................................................................................11
8.01. Conflicts of Interest; HRA Representatives Not Individually Liable ....................11
8.02. Equal Employment Opportunity ............................................................................11
8.03. Restrictions on Use ................................................................................................11
8.04. Titles of Articles and Sections ...............................................................................11
8.05. Business Subsidies Act ..........................................................................................12
8.06. Term of Agreement ................................................................................................12
8.07. Provisions Surviving Termination .........................................................................12
ARTICLE 9 ADMINISTRATIVE PROVISIONS ........................................................................12
9.01. Notices and Demands ............................................................................................12
9.02. Counterparts ...........................................................................................................12
9.03. Binding Effect ........................................................................................................12
9.04. Severability ............................................................................................................12
9.05. Amendments, Changes and Modifications ............................................................13
9.06. Further Assurances and Corrective Instruments ....................................................13
9.07. Captions .................................................................................................................13
9.08. Applicable Law ......................................................................................................13
9.09. Entire Agreement ...................................................................................................13
EXHIBIT A PROPERTY
EXHIBIT B PROJECT DESCRIPTION; QUALIFIED COSTS
EXHIBIT C CERTIFICATE OF COMPLETION
EXHIBIT D GRANT DISBURSEMENT REQUEST
4867-7453-3306\3
GRANT AGREEMENT
THIS Grant Agreement (this “Agreement”), made and entered into as of May 16, 2024,
between the Edina Housing and Redevelopment Authority, a political subdivision of the State of
Minnesota (the “HRA”), and Oh Crêpe! LLC, a Minnesota limited liability company (the
“Grantee”).
WITNESSETH:
WHEREAS, pursuant to the temporary authority for use of increment granted by
Minnesota Statutes, Section 469.176, subdivision 4n (the “Act”), on October 28, 2021 the HRA
adopted, and on November 16, 2021, the City of Edina (the “City”) approved a written spending
plan for unobligated tax increment monies for the Southdale 2 TIF District, Pentagon Park TIF
District, and 70th and Cahill TIF District (the “Spending Plan”); and
WHEREAS, pursuant to the Act and the terms set forth in this Agreement, the HRA will
provide a grant of unobligated tax increment revenue to the Grantee to assist Grantee in financing
the upgrading and remodeling of a leased space for a Coffee Shop and Bakery commonly known
as Oh Crêpe! to be located at 4408 France Avenue South in the City (the “Project”); and
WHEREAS, the Grantee represents that without financial participation by the HRA the
Grantee’s efforts to complete the Project would not be possible.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
obligations set forth in this Agreement, the parties hereto hereby agree as follows:
1
4867-7453-3306\3
ARTICLE 1
Definitions
1.01. Definitions.
In this Agreement, unless a different meaning clearly appears from the context:
“Act” means Minnesota Statutes, Section 469.176, subdivision 4n.
“Agreement” means this Agreement, as the same may be from time to time modified,
amended or supplemented.
“Grantee” means Oh Crêpe! LLC, a Minnesota limited liability company.
“Business Subsidies Act” means M.S., Sections 116J.993 through 116J.995.
“Certificate of Completion” means a certification in the form attached hereto as Exhibit C,
to be provided to the Grantee pursuant to this Agreement.
“City” means the City of Edina, Minnesota.
“County” means the Hennepin County, Minnesota.
“Default Notice” means written notice from the HRA to the Grantee setting forth the Event
of Default and the action required to remedy the same.
“Event of Default” means any of the events set forth in Section 7.01 hereof.
“Facility” means the facility located at 4408 France Ave S, Edina, MN and owned by Arbor
Commercial Group, LLC.
“HRA” means the Edina Housing and Redevelopment Authority.
“Indemnified Parties” shall have the meaning set forth in Section 4.01 herein.
“Legal and Administrative Expenses” means the fees and expenses incurred by the HRA
in connection with review and analysis of the development proposed under this Agreement and
the preparation of this Agreement including, but not limited to, attorney and municipal advisor
fees and expenses.
“Grant” means the grant, in the amount not to exceed $24,000, from the HRA to the
Grantee. The actual amount of the Grant shall be the lesser of actual Qualified Costs or 50% of
the total construction cost not to exceed $24,000.
“M.S.” means Minnesota Statutes.
“Plans” means the plans, specifications, drawings and related documents for the work to
be performed by the Grantee on the Property.
2
4867-7453-3306\3
“Project” means the upgrading and remodeling of a leased space for a Coffee Shop and
Bakery commonly known as Oh Crêpe! in the City, as described in greater detail in Exhibit B to
this Agreement.
“Property” means real property located at 4408 France Ave S, Edina, Minnesota, and as
legally described in Exhibit A.
“Qualified Costs” means costs incurred by Grantee in connection with the Project, which
are shown on Exhibit B to this Agreement.
“Section” means a Section of this Agreement, unless used in reference to M.S.
“Spending Plan” means the written spending plan for unobligated tax increment monies
for the Southdale 2 TIF District, Pentagon Park TIF District, and 70th and Cahill TIF District
adopted by the HRA on October 28, 2021, and approved by the City on November 16, 2021.
“State” means the State of Minnesota.
“Termination Date” means the date this Agreement is terminated or rescinded in
accordance with its terms.
“Unavoidable Delay” means a failure or delay in a party’s performance of its obligations
under this Agreement, or during any cure period specified in this Agreement which does not entail
the mere payment of money, not within the party’s reasonable control, including but not limited to
acts of God, governmental agencies, the other party, strikes, labor disputes (except disputes which
could be resolved by using union labor), fire or other casualty, lack of materials, or declarations of
any state, federal or local government, pandemics, epidemics (including the COVID-19 virus);
provided that within ten (10) days after a party impaired by the delay has actual (as opposed to
constructive) knowledge of the delay it shall give the other party notice of the delay and the
estimated length of the delay, and shall give the other party notice of the actual length of the delay
within ten (10) days after the cause of the delay has ceased to exist. The parties shall pursue with
reasonable diligence the avoidance and removal of any such delay. Unavoidable Delay shall not
extend performance of any obligation unless the notices required in this definition are given as
herein required.
ARTICLE 2
Representations and Warranties
2.01. HRA Representations.
The HRA makes the following representations to the Grantee:
(a) The HRA has the power under State law to enter into this Agreement and
carry out its obligations hereunder.
(b) After each payment by the Grantee on any unforgiven portion of the Note,
the HRA will provide Grantee with a statement showing the remaining amounts of unpaid
interest, if any, and principal.
3
4867-7453-3306\3
2.02. Grantee Representations.
The Grantee represents and warrants that:
(a) Grantee is a limited liability company under the laws of the State of
Minnesota and has power to enter into this Agreement and has duly authorized, by all
necessary corporate action, the execution and delivery of this Agreement.
(b) Grantee will, subject to and as required by Agreement, complete or cause
to be completed the Project in accordance with the terms of this Agreement, and all
applicable local, state and federal laws and regulations.
(c) At such time or times as may be required by law, the Grantee will comply,
or cause compliance with, all local, state and federal environmental laws and regulations
applicable to the Project, and will obtain or cause to be obtained any and all necessary
environmental reviews, licenses and clearances. The Grantee has received no written
notice from any local, state or federal official that the activities of the Grantee or the HRA
with respect to the Property may be or will be in violation of any environmental law or
regulation. The Grantee has no actual knowledge of any facts the existence of which would
cause it to be in violation of any local, state or federal environmental law, regulation or
review procedure with respect to the Property.
(d) Neither the execution or delivery of this Agreement, the consummation of
the transactions contemplated hereby, nor the fulfillment of or compliance with the terms
and conditions of this Agreement is prevented by, limited by, conflicts with, or results in a
breach of, any restriction, agreement or instrument to which the Grantee is now a party or
by which the Grantee is bound.
(e) The Grantee has no actual knowledge that any member of the Board of the
HRA, or any other officer of the HRA or the City has any direct or indirect financial interest
in the Grantee, the Property, or the Project.
(f) The Grantee will use commercially reasonable efforts to obtain, in a timely
manner, all required permits, licenses and approvals, and will meet, in a timely manner, all
requirements of all local, state and federal laws and regulations which must be obtained or
met in connection with the Project. Without limitation to the foregoing, the Grantee will
request and seek to obtain from the City all necessary variances, conditional use permits
and zoning changes related to the Project.
(g) The Grantee would not undertake the Project without the financial
assistance to be provided by the HRA pursuant to this Agreement.
2.03. Use of Property. The Grantee’s use of the Property shall be subject to and in
compliance with all of the conditions, covenants, restrictions and limitations imposed by this
Agreement, any lease or sublease, and all applicable laws, ordinances and regulations. The
Grantee hereby represents and warrants that to its knowledge there is no existing event or
circumstance that would hinder the Project as contemplated by this Agreement.
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2.04. Insurance; Vacating Facility.
The Grantee will, at its expense, carry such type and amount of insurance as is standard
commercially and as may be required under any lease, including, but not limited to, general
liability, property, business interruption, and automobile liability insurance. Upon any damage or
destruction of the Facility, or any portion thereof, by fire or other casualty, Grantee shall use
commercially reasonable efforts to remain in the Facility subject to rights and obligations set forth
in any lease. If, upon damage or destruction of the Facility, Grantee decides to vacate the Facility
prior to delivery of a Certificate of Completion, the HRA shall not be required to provide the Grant
contemplated herein.
ARTICLE 3
The Project
3.01. Timing; Plans. At the HRA’s request, the Grantee shall make Plans for the Project
available to the HRA for review.
(a) Subject to Unavoidable Delay and approved extensions by the HRA in
writing, Grantee shall cause the Project to commence within six months after the date of
this Agreement and be substantially completed in accordance with the terms of the this
Agreement within twelve (12) months after the commencement date.
(b) The Grantee shall not interfere with, or construct any improvements over,
any public street or utility easement without the prior written approval of the HRA. All
connections to public utility lines and facilities shall be subject to approval of the HRA (in
accordance with City code) and any applicable private utility provider. Except for public
improvements undertaken by the HRA or another governmental body and assessed against
benefited properties, all street and utility installations, relocations, alterations and
restorations shall be at the Grantee’s expense and without expense to the HRA. The
Grantee, at its own expense, shall replace any public facilities or utilities damaged during
the Project by the Grantee or its agents or by others acting on behalf of or under the
direction or control of the Grantee.
3.02. Certificate of Completion.
(a) Upon the Grantee’s request and following the HRA’s certification that the
Project is completed to the reasonable satisfaction of the Chair and Secretary of the HRA,
or their designees, the Chair and Secretary of the HRA, or their designees, will furnish the
Grantee with a Certificate of Completion for the Project, in substantially the form attached
hereto as Exhibit C, as conclusive evidence of satisfaction and termination of the
agreements and covenants of this Agreement with respect to the obligations of the Grantee
to complete the Project. The furnishing by the Chair and Secretary of the HRA, or their
designees, of such Certificate of Completion shall not constitute evidence of compliance
with or satisfaction of any obligation of the Grantee or owner to any mortgagee.
(b) The following conditions are also required prior to the Chair and Secretary
of the HRA furnishing a Certificate of Completion to Grantee:
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Grantee must receive a Certificate of Occupancy or equivalent
documentation from the Edina Building Department that attests that
the space is approved for occupancy;
The Edina Engineering Department must provide approval for any
exterior work that requires permit;
Grantee has provided to the HRA paid invoices, lien waivers or
equivalent documents to confirm that all Qualified Costs to be
reimbursed with the Grant funds have been paid; and
Grantee must not be in violation of any applicable wage theft laws.
(c) If the Chair and Secretary of the HRA, or their designees, shall refuse or fail
to provide a Certificate of Completion following the Grantee’s request, the Chair and
Secretary of the HRA shall, within twenty-one (21) days after the Grantee’s request,
provide the Grantee with a written statement specifying in what respects the Grantee has
failed to complete the Project in accordance with this Agreement, or is otherwise in default,
and what measures or acts will be necessary, in the reasonable opinion of the Chair and
Secretary of the HRA, for the Grantee to obtain the Certificate of Completion.
3.03. Progress Reports. Until the Certificate of Completion is issued for the Project, the
Grantee shall make, in such detail as may reasonably be required by the HRA, and forward to the
HRA, upon demand by the HRA (provided such demand shall not be made more frequently than
monthly in the absence of an Event of Default hereunder), a written report as to the actual progress
of the Project.
3.04. Access to Property. Subject to any lease, the Grantee agrees to permit the HRA
and any of its officers, employees or agents access to the Property at all reasonable times for the
purpose of inspection of all work being performed in connection with the Project; provided,
however, that the HRA shall not have an obligation to inspect such work.
3.05. Subordination. By written consent of the HRA, which consent shall not be
unreasonably withheld, the HRA may subordinate any or all of its rights under this Agreement to
any lease.
ARTICLE 4
Defense of Claims; Insurance
4.01. Defense of Claims.
(a) The Grantee shall indemnify and hold harmless the HRA, its governing
body members, officers, and agents including the independent contractors, consultants, and
legal counsel, servants and employees thereof (hereinafter, for the purposes of this Section,
collectively the “Indemnified Parties”) for any expenses (including reasonable attorneys’
fees), loss (excluding consequential, special or punitive damages except to the extent
payable to third parties by any Indemnified Parties), damage to property, or death of any
person occurring at or about, or resulting from any defect in, the Project; provided,
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however, the Grantee shall not be required to indemnify any Indemnified Party for any
claims or proceedings arising from any negligent, intentional misconduct, or unlawful acts
or omissions of such Indemnified Party, or from expenses, damages or losses that are
eligible to be reimbursed by insurance. Promptly after receipt by the HRA of notice of the
commencement of any action in respect of which indemnity may be sought against the
Grantee under this Section 4.01, such person will notify the Grantee in writing of the
commencement thereof, and, subject to the provisions hereinafter stated, the Grantee shall
assume the defense of such action (including the employment of counsel, who shall be
counsel reasonably satisfactory to the HRA) and the payment of expenses insofar as such
action shall relate to any alleged liability in respect of which indemnity may be sought
against the Grantee. The HRA shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of such counsel
shall not be at the expense of the Grantee unless the employment of such counsel has been
specifically authorized by the Grantee. Notwithstanding the foregoing, if the HRA has
been advised by independent counsel that there may be one or more legal defenses available
to it which are different from or in addition to those available to the Grantee, the Grantee
shall not be entitled to assume the defense of such action on behalf of the HRA, but the
Grantee shall be responsible for the reasonable fees, costs and expenses (including the
employment of counsel) of the HRA in conducting their defense. The Grantee shall not be
liable to indemnify any person for any settlement of any such action effected without the
Grantee’s consent. The omission to notify the Grantee as herein provided will not relieve
the Grantee from any liability which it may have to any Indemnified Party pursuant hereto,
otherwise than under this Section.
(b) The Grantee agrees to protect and defend the Indemnified Parties, and
further agrees to hold the aforesaid harmless, from any claim, demand, suit, action or other
proceeding whatsoever by any person or entity arising or purportedly arising from the
actions or inactions of the Grantee (or other persons acting on its behalf or under its
direction or control) under this Agreement, or the transactions contemplated hereby or the
acquisition, construction, installation, ownership, and operation of the Project; provided
that this indemnification shall not apply to the warranties made or obligations undertaken
by the HRA in this Agreement or to any actions undertaken by the HRA which are not
contemplated by this Agreement but shall, in any event, apply to any pecuniary loss
(excluding consequential, special or punitive damages except to the extent payable to third
parties by any of the Indemnified Parties) or penalty (including interest thereon from the
date the loss is incurred or penalty is paid by the HRA at a rate equal to the prime rate) as
a result of the Project, as constructed and operated by the Grantee, or to violate limitations
as to the use of the revenues therefrom as set forth in the Act.
(c) All covenants, stipulations, promises, agreements and obligations of the
HRA contained herein shall be deemed to be the covenants, stipulations, promises,
agreements and obligations of the HRA and not of any governing body member, officer,
agent, servant or employee of the HRA, as the case may be.
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ARTICLE 5
Grant for Reimbursement of Expenses
5.01. Development Costs The Grantee has agreed to and shall be responsible to pay or
cause to be paid all of its respective costs of the Project, as herein provided. However, the HRA,
in order to encourage the Grantee to proceed with the Project, and to assist the Grantee in paying
the costs thereof, is willing to provide the Grant.
5.02. Grant.
The HRA agrees to provide the Grantee a grant of unobligated incremental property taxes.
The actual amount of the Grant shall be the lesser of actual Qualified Costs or 50% of the total
construction cost not to exceed $24,000.
The HRA shall provide the Grant to Grantee upon satisfaction of the conditions precedent
set forth in Section 5.04 below. Within thirty (30) business days of approval of the Disbursement
Request by the HRA as set forth in Section 5.03 below, the HRA shall provide the Grant to the
Grantee via check or wire transfer.
(a) The actual amount of the Grant shall be the lesser of actual Qualified Costs
or 50% of the total construction cost not to exceed $24,000.
(b) The Grant shall not be made by the HRA to the Grantee unless and until the
Grantee has provided written evidence reasonably satisfactory to the HRA that
(i) Qualified Costs or the total amount of construction costs have been incurred for the
Project and paid by the Grantee as demonstrated by paid invoices and lien waivers and (ii)
the conditions precedent set forth in Section 5.04 below have been satisfied.
(c) The HRA shall not be obligated to provide the Grant to the Grantee
subsequent to the termination of this Agreement as provided in Section 8.06 hereof.
(d) Upon written consent from the HRA, which consent shall not be
unreasonably withheld, the Grantee may assign its rights under this Agreement to secure
financing incurred by the Grantee to pay costs of the Project, or, after a Certificate of
Completion has been issued by the HRA, to third parties.
5.03. Disbursement Request.
Upon payment by the Grantee of Qualified Costs or the total construction costs for the
Project, the Grantee will deliver to the HRA (a) an instrument executed by the Grantee in
substantially the form attached hereto in Exhibit D (i) specifying the amount and nature of the
Qualified Costs of the Project to be reimbursed or the total amount of construction costs incurred
and (ii) certifying that such costs have been paid to third parties unrelated to the Grantee, or if any
costs have been paid to third parties related to the Grantee, that such costs do not exceed the
reasonable and customary costs of services, labor or materials of comparable quality,
dependability, availability and other pertinent criteria and that such costs have not previously been
contained in an instrument furnished by Grantee to HRA pursuant to this Section 5.03; and (b)
evidence reasonably satisfactory to the HRA of the payment by the Grantee of such costs
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(collectively, the “Disbursement Request”). Within ten (10) days after the Grantee’s submission
of the Disbursement Request to the HRA, the HRA shall either approve the Disbursement Request
or provide the Grantee with a written statement specifying what additional information the HRA
needs with respect to the Disbursement Request. Thereafter, the HRA will provide to the Grantee
the Grant amount as provided in Section 5.02(a) above and subject to the conditions precedent in
Section 5.04 below.
5.04. Satisfaction of Conditions Precedent. Notwithstanding anything to the contrary
contained herein, the HRA’s obligation to provide the Grant to Grantee shall be subject to
satisfaction, or waiver in writing by the HRA, of all of the following conditions precedent:
(a) the conditions precedent in Section 5.03 hereof have been satisfied;
(b) the Grantee has satisfied the Matching Investment requirement in Section
5.05 below; and
(c) the Grantee shall not be in default under the terms of this Agreement beyond
any applicable cure period;
In the event that all of the above conditions required to be satisfied as provided in this
Section 5.04 have not been satisfied by July 31, 2025 (subject to Unavoidable Delay), either the
HRA or the Grantee may terminate this Agreement if such conditions are not satisfied within thirty
(30) days following notice to the non-terminating party by the terminating party. Upon such
termination, the provisions of this Agreement relating to the Project shall terminate and, except as
provided in Article 8, neither the Grantee nor the HRA shall have any further liability or obligation
to the other hereunder.
5.05. Matching Investment. Grantee is required to invest at least two times (2x) the Grant
amount in total construction costs for the Facility. The total construction cost includes hard and
soft costs as well as eligible and ineligible Grant expenses.
5.06. Reserved.
5.07. Notice of Default. Whenever the HRA shall deliver any notice or demand to the
Grantee with respect to any breach or default by the Grantee in its obligations or covenants under
this Agreement, the HRA shall at the same time forward a copy of such notice or demand to each
investor, lender, or holder of any permitted mortgage, lien or other similar encumbrance at the last
address of such holder shown in the records of the HRA. Each such investor, lender, or holder
shall have the right, at its option, to cure or remedy such breach or default and to add the cost
thereof to the mortgage debt and the lien of its mortgage; provided that if the breach or default is
with respect to construction of the Project, nothing contained in this Agreement shall be deemed
to permit or authorize such holder, either before or after foreclosure or action in lieu thereof, to
undertake or continue the construction or completion of the Project without first having expressly
assumed the obligation to the HRA, by written agreement satisfactory to the HRA, to complete the
construction of the Project in accordance with the plans and specifications therefor and this
Agreement. Any such holder who shall properly complete the construction of the Project shall be
entitled, upon written request made to the HRA, to a certification by the HRA to such effect in the
manner provided in Section 3.02.
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5.08 Legal and Administrative Expenses. The HRA agrees to pay all Legal and
Administrative Expenses that are incurred in connection with the negotiation, approval and
documentation of this Agreement. The Grantee agrees to pay all legal and administrative expenses
of any amendments to this Agreement.
ARTICLE 6
Prohibitions Against Assignment and Transfer
6.01. Transfer of Property and Assignment. Until such time as the Certificate of
Completion is issued, Grantee will not assign its interest in any lease relating to the Facility to any
third party without the prior consent of the City, such consent not to be unreasonably withheld,
conditioned, or delayed. Provided that no Event of Default exists hereunder, any such approved
assignment shall release the Grantee from its obligations hereunder upon execution and delivery
to the HRA by the transferee or assignee of an instrument in form and substance satisfactory to the
HRA by which the assignee assumes the obligations of the Grantee hereunder.
Except as set forth in the immediately preceding paragraph, in the absence of specific
written agreement by the HRA to the contrary, no approval of any assignment by the HRA thereof
with respect to any assignment shall be deemed to relieve the Grantee, or any other party bound in
any way by this Agreement or otherwise with respect to the completion of the Project, from any
of their obligations with respect thereto.
ARTICLE 7
Event of Default; Fees
7.01. Events of Default. Subject to Unavoidable Delay, the following shall be “Events
of Default” under this Agreement and the term “Event of Default” shall mean, whenever it is used
in this Agreement (unless the context otherwise provides), any one or more of the following events
which occurs and continues for more than thirty (30) days after written notice by the defaulting
party of such default (and the term “default” shall mean any event which would with the passage
of time or giving of notice, or both, be an “Event of Default” hereunder):
(a) Failure of the Grantee to complete the Project as required hereunder.
(b) Failure of the Grantee or the HRA to observe and perform any other material
covenant, condition, obligation or agreement on its part to be observed or performed
hereunder.
(c) Filing of any voluntary petition in bankruptcy or similar proceedings by the
Grantee; general assignment for the benefit of creditors made by the Grantee or admission
in writing by the Grantee of inability to pay its debts generally as they become due; or
filing of any involuntary petition in bankruptcy or similar proceedings against the Grantee
which are not dismissed or stayed within sixty (60) days.
7.02. Remedies on Default. In the event the HRA desires to exercise any of its rights or
remedies as provided herein or otherwise available to the HRA at law or in equity, the HRA shall
first provide written notice to Grantee setting forth with specific particularity the Event of Default
and the action required to cure or remedy the same (the “Default Notice”). Grantee or any
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transferee or assignee under Section 6.01 hereof, shall have thirty (30) days from receipt of a
Default Notice to cure or remedy the Event of Default specified in the Default Notice, or such
longer period as may be reasonably required to complete the cure as soon as reasonably possible
under the circumstances. If, following Grantee’s receipt of a Default Notice, Grantee does not
cure or remedy the Event of Default therein specified within the time provided above, the HRA
may take any one or more of the following actions at any time prior to Grantee’s curing or
remedying the Event of Default:
(a) Suspend its performance under this Agreement until it receives assurances
from Grantee, deemed reasonably adequate by the HRA, that Grantee will cure its default
and continue its performance under this Agreement.
(b) In the case of a material default that is not cured within a reasonable period
of time, terminate all rights of Grantee under this Agreement.
(c) Withhold the Certificate of Completion.
(d) Take whatever action at law or in equity may appear necessary or desirable
to the HRA to enforce performance and observance of any obligation, agreement, or
covenant of Grantee under this Agreement.
In the event the HRA should fail to observe or perform any covenant, agreement or
obligation of the HRA on their part to be observed and performed under this Agreement, Grantee
may take any one or more of the following actions:
(a) Suspend its performance under this Agreement until it receives assurances
from the HRA deemed adequate by Grantee, that the HRA will cure its default and continue
its performance under this Agreement.
(b) In the case of a material default that is not cured within a reasonable period
of time, terminate all rights of the HRA under this Agreement.
(c) Take whatever action at law or in equity may appear necessary or desirable
to Grantee to enforce performance and observance of any obligation, agreement, or
covenant of the HRA under this Agreement.
7.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to the HRA,
or to the Grantee is intended to be exclusive of any other available remedy or remedies, but each
and every such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by stat ute. No delay or
omission to exercise any right or power accruing upon any default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In order to entitle the HRA, or Grantee
to exercise any remedy reserved to them, it shall not be necessary to give notice, other than such
notice as may be required under this Agreement.
7.04. Waivers. All waivers by any party to this Agreement shall be in writing. If any
provision of this Agreement is breached by any party and thereafter waived by another party, such
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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.
7.05. Agreement to Pay Attorneys’ Fees. Whenever any Event of Default occurs and the
HRA shall employ attorneys or incur other expenses for the collection of payments due or to
become due or for the enforcement or performance or obs ervance of any obligation or agreement
on the part of the Grantee herein contained, the Grantee agrees that it shall, on demand therefor,
pay to the HRA the reasonable fees of such attorneys and such other expenses so incurred by the
HRA.
ARTICLE 8
General Provisions
8.01. Conflicts of Interest; HRA Representatives Not Individually Liable. No member,
official, employee, or consultant or employee of a consultant of the HRA shall have any personal
interest, direct or indirect, in this Agreement, nor shall any such member, official, consultant or
the consultant’s employees or employee participate in any decision relating to this Agreement
which affects his or her personal interests or the interests of any corporation, partnership, or
association in which he or she is directly or indirectly interested. No member, official, consultant
or consultant’s employee, or employee of the HRA shall be personally liable to Grantee, or any
successor in interest, in the event of any default or breach by the HRA or for any amount which
may become due to Grantee or successors or on any obligations under the terms of this Agreement.
No member, official, consultant or consultant’s employee, or employee of the Grantee shall be
personally liable to the HRA, or any successor in interest, in the event of any default or breach by
the Grantee or for any amount which may become due to the HRA on any obligations under the
terms of this Agreement.
8.02. Equal Employment Opportunity; Minnesota Wage Theft Protection Act. Grantee,
for itself and its successors and assigns, agrees that during the construction of the Project it will
comply with and cause any contractors or subcontractors to comply with any applicable federal,
state and local affirmative action, equal employment, and nondiscrimination laws or regulations
and all labor and wage laws, including all provisions related to Minnesota’s Wage Theft Protection
Act.
8.03. Restrictions on Use. Grantee agrees for itself, and its successors and assigns, and
every successor in interest to the Property, or any part thereof, that Grantee, and such successors
and assigns, shall devote the Property to, and only to and in accordance with, the uses specified in
this Agreement and other agreements entered into between the Grantee and the HRA, and shall
not discriminate upon the basis of race, color, creed, religion, national origin, sex, marital status,
disability, status with regard to public assistance, sexual orientation, or familial status in the sale,
lease, or rental or in the use or occupancy of the Property or any improvements erected or to be
erected thereon, or any part thereof.
8.04. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections
of this Agreement are inserted for convenience of reference only and shall be disregarded in
construing or interpreting any of its provisions.
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8.05. Business Subsidies Act. The Grant shall not exceed $24,000, therefore, the Grant
is not a business subsidy, and the parties will not enter into a business subsidy agreement pursuant
to the Business Subsidies Act.
8.06. Term of Agreement. This Agreement shall terminate on the Termination Date; it
being expressly agreed and understood that the provisions of this Agreement are intended to
survive the expiration and satisfaction of any security instruments placed of record
contemporaneously with this Agreement, if such expiration and satisfaction occurs prior to
Termination Date, as stated in this Section 8.06.
8.07. Provisions Surviving Termination. Sections 4.01 and 7.05 hereof shall survive any
termination, rescission, or expiration of this Agreement with respect to or arising out of any event,
occurrence, or circumstance existing prior to the date thereof.
ARTICLE 9
Administrative Provisions
9.01. Notices and Demands. Except as otherwise expressly provided in this Agreement,
a notice, demand, or other communication under this Agreement by any party to another party
shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage
prepaid, return receipt requested, or delivered personally as follows:
(a) in the case of Grantee, addressed to or delivered personally to:
Oh Crêpe! LLC
12820 Foliage Avenue
Apple Valley, MN 55124
Attention: Claire Corvaisier
(b) in the case of the HRA, addressed or delivered personally to:
Edina Housing and Redevelopment Authority
4801 W 50th Street
Edina, MN 55424
Attention: Scott Neal, Executive Director
The HRA and the Grantee, by notice given hereunder, may designate different addresses
to which subsequent notices, certificates or other communications should be sent.
9.02. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall constitute one and the same instrument.
9.03. Binding Effect. This Agreement shall inure to the benefit of and shall be binding
upon the HRA and the Grantee and their respective successors and assigns.
9.04. Severability. In the event any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
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9.05. Amendments, Changes and Modifications. This Agreement may be amended or
any of its terms modified only by written amendment authorized and executed by the HRA and
the Grantee. The Chair and HRA Secretary are authorized to execute and deliver amendments and
any documents related to this Agreement on behalf of the HRA. The Executive Director is
authorized to approve time extensions due to documented Unavoidable Delays for up to 90 days.
9.06. Further Assurances and Corrective Instruments. The HRA and the Grantee agree
that they will, from time to time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements hereto and such further instruments as may
reasonably be required for correcting any inadequate or incorrect description of the Property or the
Project or for carrying out the expressed intention of this Agreement.
9.07. Captions. The captions or headings in this Agreement are for convenience only
and in no way define, limit or describe the scope of intent of any provision or Section of this
Agreement.
9.08. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota without giving effect to the conflict -of-laws
principles thereof.
9.09. Entire Agreement. This Agreement constitutes the entire agreement of the
parties with regard to the subject matter hereof, and supersedes all previous written or oral
representations, agreements and understandings between the parties, whether expressed or
implied.
REMAINDER OF PAGE INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
EDINA HOUSING AND REDEVELOPMENT
AUTHORITY
By
James B. Hovland, Chair
And
James Pierce, Secretary
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me on this ______ day of
_____________ 2024, by James B. Hovland, the Chair, and James Pierce, the Secretary, of the
Edina Housing and Redevelopment Authority, a Minnesota municipal corporation, on behalf of
the corporation.
IN WITNESS WHEREOF, I have set my hand and my official seal this ____ day of
_____________, 2024.
Notary Public
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OH CRÊPE! LLC, a Minnesota limited liability
company
By:
Print Name:
Its: _____________________
Insert Title:
STATE OF __________ )
) ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me on this ___ day of ___________,
2024, by _____________________, the _____________________ of Oh Crêpe! LLC, a
Minnesota limited liability company, on behalf of the company.
IN WITNESS WHEREOF, I have set my hand and my official seal this ___ day of
__________, 2024.
Notary Public
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EXHIBIT A
PROPERTY
The real property and interests in such property located in the County of Hennepin, State
of Minnesota and described as follows:
Common Address: 4408 France Ave S, Edina, Minnesota
Legal Description
Lot 2 and Lot 3, Block 1, “Fairbairn’s Rearrangement” in Waveland and Waveland Park,
Hennepin County Minnesota, except that part thereof described as follows: Beginning at the
most Southerly corner of said Lot 3, thence running Northwesterly along the Southwesterly line
of said Lot 3 a distance of 51.16 fee; thence running Northeasterly in a straight line hereinafter
described as Line XY, to a point in the Southeasterly line of said Lot 3, which point is distant
48.3 feet Northeasterly from the most southerly corner of said Lot 3 to the point of beginning,
according to the plat thereof on file or of record in the office of the Register of Deeds in and for
said Hennepin County.
Together with an easement over and across that part of the above described excepted tract of land
described as follows: Beginning at a point on the Southwesterly line of said Lot 3, 51.16 feet
Northwesterly from the most Southerly corner thereof; thence running Northeasterly in a straight
line parallel with the Southeasterly line of said Lot 3 a distance of 28.2 feet to the actual point of
beginning of the easement to be described; thence running Southeasterly along the
aforementioned Line XY a distance of 27.86 feet; thence running Southwesterly at right angles
2.95 feet; thence running Northwesterly parallel with said Line XY to a point in the
Northwesterly line of the above described excepted tract of land; thence running Northeasterly
along said Northwesterly line to the actual point of beginning.
NOTE: Said property being registered as is evidenced by Certificate of Title No. 718807.
Parcel ID Number
07-028-24-44-0056
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EXHIBIT B
PROJECT DESCRIPTION; QUALIFIED COSTS
Qualified Costs Generally
Qualified Costs may include:
a) Energy efficient improvements to building shell including but not limited to: glazing and
storefront systems, wall and ceiling insulation, HVAC systems and similar work;
b) Permanent improvements to achieve handicapped accessibility per ADA and MN
Accessibility Code including but not limited to: entrances and exits to building and/or suite,
accessible route to/from handicapped parking stalls to building and/or suite entrances ,
customer facilities such as toilet rooms, permanent sales counters, elevators and lifts; and
c) Other permanent improvements to the building that are necessary to occupy a successful
business when approved by the HRA
Project Description
The Project involves the upgrading and remodeling of a leased space for a Coffee Shop
and Bakery common known as Oh Crêpe!. The total estimated construction cost is approximately
$140,000. Specific upgrades to be made that are considered Qualified Costs include:
Changing the front door with a new door and push plate to create an ADA
compliance entrance
Changing the front window(s) with new energy efficient glazing
The estimated Qualified Costs are listed below that are eligible for reimbursement from the
unobligated tax increment. The list below is non-exhaustive and the amounts assigned to each
category are estimates only and not independent limitations of Grantee’s Qualified Costs.
ADA entrance and window replacement $ 18,876
Estimated Total of Qualified Costs $ 18,876*
* Grantee’s Qualified Cost. The total principal amount of the Grant to reimburse the Grantee for
Qualified Costs of the Project will not exceed $24,000. The actual amount of the Grant shall be
the lesser of actual Qualified Costs or 50% of the total construction cost not to exceed $24,000.
C-1
4867-7453-3306\3
EXHIBIT C
CERTIFICATE OF COMPLETION
WHEREAS, Oh Crêpe! LLC, a Minnesota limited liability company, is the tenant of the
Facility on the property (the “Property”) in the County of Hennepin and State of Minnesota
described on Exhibit A of that certain Grant Agreement (the “Agreement”), dated as of May 16,
2024, between the Grantee and the Edina Housing and Redevelopment Authority; and
WHEREAS, the Property is subject to the provisions of the Agreement; and
WHEREAS, the Grantee has fully and duly performed all of the covenants and conditions
of Grantee under the Agreement with respect to the completion of the Project (as defined in the
Agreement);
NOW, THEREFORE, it is hereby certified that all requirements of the Grantee under the
Agreement with respect to the completion of the Project have been completed and duly and fully
performed, and this instrument is to be conclusive evidence of the satisfactory termination of the
covenants and conditions of the Agreement as they relate to the completion of the Project. All
other covenants and conditions of the Agreement, including the covenants and conditions related
to the Grant, shall remain in effect and are not terminated hereby.
Dated this ____ day of ____________, 202__.
EDINA HOUSING AND REDEVELOPMENT
AUTHORITY
By
Chair
And
Secretary
D-1
4867-7453-3306\3
EXHIBIT D
GRANT DISBURSEMENT REQUEST
Name of Grantee: Oh Crepe, LLC (“Grantee”)
Project: The upgrading and remodeling of a leased space for a Coffee Shop and Bakery common known
as Oh Crêpe! (The “Project”)
Project Address: 4408 France Avenue South
(A) Actual Project Construction Cost incurred by Grantee for the Project $
(B) Actual Amount of Qualified Costs $
Amount Requested (not to exceed 50% of A nor 100% of B nor $24,000) $
The undersigned represents and certifies as follows:
1) Grantee has completed the Project in accordance with that certain Grant Agreement made and
entered into as of May 16, 2024 (the “Grant Agreement”), between the Edina Housing and
Redevelopment Authority (the “HRA”), and the Grantee, and all applicable laws and codes related
thereto; and
2) Such costs as detailed herein have been paid to third parties unrelated to the Grantee and any costs
paid to third parties related to the Grantee, do not exceed the reasonable and customary costs of
services, labor or materials of comparable quality, dependability, availability and other pertinent
criteria; and
3) Costs detailed herein have not previously been contained in an instrument furnished by the Grantee
to the HRA; and
4) The Grantee has fully and duly performed all other covenants and conditions of Grantee under the
Grant Agreement with respect to the completion of the Project and the disbursement of funds by
the HRA.
__________________________
(Signature)
Printed Name:
Date:
Attachments must include:
Copies of paid invoices and/or lien waivers by contractor(s)
For Edina HRA Staff Use Only
Reviewed by:
Date Approved for Payment:
Edina SPARC Funding Programs
Grant Agreements with Oh Crepe, LLC and
Arbor Sunnyside Properties, LLC
Staff Presentation to:
Edina HRA Board
May 16, 2024
Housing & Redevelopment Authority
SPARC Program Background
Housing & Redevelopment Authority
•Established 2021 by state legislation intended
to create jobs and attract investment
•Edina pooled $9.6 million from five
commercial TIF Districts
•SPARC can be used in multiple ways:
•provide improvements to the private development,
•loans or interest rate subsidies to private development,
•assistance in any form to the private development; or
•by making an equity or similar investment in a
corporation, partnership, or limited liability company
SPARC Programs
Housing & Redevelopment Authority
Support for Small Business Investment in Edina
SPARC
Streamlined
Grants
Up to $24,000 for building shell improvements that
create jobs
SPARC Forgivable
Loans
Up to $149,000 for general building improvements
that create jobs
SPARC Investment
Program
(Loans, Equity and
Forgivable Loans)
$150,000 and over for larger and more challenging
new construction and remodeling that create jobs
SPARC Streamlined Grant Program, Overview
Housing & Redevelopment Authority
•Approximately $300,000 available
•Intended to be simple and easy to implement for small
business located in Edina
•Applicable to commercial and industrial businesses
occupying vacant space or expanding
•Applied only when needed to move forward with
private investment
•Requires matching investment from owner/operator
•Eligible expenses in line with broader City goals:
•Permanent improvements to increase handicapped
accessibility
•Permanent improvements to increase energy efficiency
•Other permanent improvements necessary to open or
expand business when approved in advance
•Lesser amount of: 50% to total project
costs, 100% of eligible costs not to exceed
$24,000*
•Dates & Deadlines: begin within 6 months
and completed within 12 months
•Payable after completion of work,
evidence of contractor payment and
submission of paid invoice for eligible
work
•No job reporting necessary
•Grant-funded work must remain with the
property in case the business closes
* Satisfies exception to not be classified as “business subsidy”
SPARC Forgivable Loan Program, Overview
Housing & Redevelopment Authority
•Approximately $600,000 available
•Intended to be direct and easy to implement for small
business located in Edina
•Applicable to commercial and industrial businesses
occupying vacant space or expanding
•Priority given to first-time business owners and
businesses that provide needed goods and services
•Applied only when needed to move forward with
private investment
•Requires matching investment from owner/operator
•Eligible expenses in line with broader City goals:
•Any permanent improvement to the building shell or interior
including handicapped accessibility, energy efficiency or
general construction
•Identified in advance
•Lesser amount of: 50% to total project costs,
100% of eligible costs not to exceed $149,000*
•Dates & Deadlines: begin within 6 months and
completed within 18 months
•Payable after completion of work, evidence of
contractor payment and submission of paid
invoice for eligible work
•HRA-funded work must remain with the
property in case the business closes
•Business must remain operational and deliver
agreed-upon community outcomes before loan
can be forgiven
•Must comply with Business Subsidy Act unless
project meets an exception and is exempt
* Higher amounts are possible when warranted by unique conditions
SPARC Investment Program, Overview
Housing & Redevelopment Authority
•Approximately $4 million available
•Intended for larger scale and more challenging
projects
•Commercial and industrial businesses, preferred;
open to multi-family projects too if affordable
units on site with no other funding source
•Applied only when needed to move forward
with private investment
•Requires matching investment from
owner/operator
•Eligible expenses in line with broader City goals:
•Any permanent improvement to the building shell or
interior including handicapped accessibility, energy
efficiency or general construction
•Identified in advance
•Lesser amount of: 50% to total project costs, 50% of
eligible costs with maximum amount set on case-by-case
basis*
•Interest: negotiated case-by-case; slightly lower than
traditional lenders
•Dates & Deadlines: begin within 6 months and completed
within 24 months
•Payable after completion of work, evidence of contractor
payment and submission of paid invoices for eligible work
•HRA-funded work must remain with the property
•Business must remain operational and deliver agreed-upon
community outcomes
•Loan expected to be repaid over time
•Must comply with Business Subsidy Act unless project
meets an exception and is exempt
*can be modified to address unique situations
SPARC Programs – Evaluation, Compliance and Payment Procedures
Housing & Redevelopment Authority
Typical Process for SPARC Investments
SPARC
Streamlined
Grants
SPARC
Forgivable
Loans
SPARC
Investment
Program
1 Staff will work with prospects, review eligibility and
engage HRA/City Attorney to prepare Agreement
2 Agreement presented to HRA Board for approval
3 Applicant to complete work
4 Applicant to submit request for SPARC reimbursement
5 Staff to review compliance of finished project as outlined
in Agreement
6 HRA Chair & Secretary to issue Certificate of
Completion
7 Staff to issue payment to grantee
8 Staff to monitor progress annually for compliance with
Agreement
Housing & Redevelopment Authority
Nolan Mains
US
Bank D’Amico
Edina
Theatre
Edina
Grill
Pajarito
W. 50 th Street
France AvenueFrance AvenueHazelton Road
York AvenueEdina Promenade & Three Rivers Bike Trail
4404 - 4412
4408
Grant Agreements with Oh Crepe & Arbor Sunnyside Properties … The Site
Housing & Redevelopment Authority
Nolan Mains
US
Bank D’Amico
Edina
Theatre
Edina
Grill
Pajarito
W. 50 th Street
France AvenueFrance AvenueHazelton Road
York AvenueEdina Promenade & Three Rivers Bike Trail
Project Scope
Landlord Work:
rear parking lot
Tenant Work:
front entry
and windows
Housing & Redevelopment Authority
Nolan Mains
US
Bank D’Amico
Edina
Theatre
Edina
Grill
Pajarito
W. 50 th Street
France AvenueFrance AvenueHazelton Road
York AvenueEdina Promenade & Three Rivers Bike Trail
Grant for Oh Crepe, LLC
Location 4408 France Ave.Eligible
Grant
Items
Accessible front entrance and energy
efficient storefront glazing
Scope Remodel and re-occupy vacant
space with new coffee shop and
crepe bakery
Job
Creation
Yes, full-time and part-time jobs; on-
site construction jobs
Total
Investment
Approx $140,000 Project
Timing
Summer 2024
Reimbursable
Grant
Approx $18,000
* Lesser amount of 100% of eligible cost, 50% total cost or $24,000
Housing & Redevelopment Authority
Nolan Mains
US
Bank D’Amico
Edina
Theatre
Edina
Grill
Pajarito
W. 50 th Street
France AvenueFrance AvenueHazelton Road
York AvenueEdina Promenade & Three Rivers Bike Trail
Grant for Arbor Sunnyside Properties, LLC
Location 4404 - 4412 France Ave.Eligible
Grant
Items
Full reconstruction of parking lot
Scope Reconstruction of parking lot to
serve re-occupancy of vacant space;
reconstruction will remove single
step that prevents wheelchair
access to rear doors
Job
Creation
Yes, full-time and part-time jobs (by
tenant); on-site construction jobs (by
landlord)
Total
Investment
Approx $40,000 Project
Timing
Summer/Fall 2024
Reimbursable
Grant
Approx $20,000*
* Lesser amount of 100% of eligible cost, 50% total cost or $24,000
Housing & Redevelopment Authority
Nolan Mains
US
Bank D’Amico
Edina
Theatre
Edina
Grill
Pajarito
W. 50 th Street
France AvenueFrance AvenueHazelton Road
York AvenueEdina Promenade & Three Rivers Bike Trail
Recommended Action
Staff recommends that the HRA Board approve
the grant agreements with Oh Crepe, LLC and
Arbor Sunnyside Properties, LLC.
Date: May 16, 2024 Agenda Item #: VI I.B.
To:C hair & C ommis s ioners of the Edina HR A Item Type:
R eport / R ecommendation
F rom:Bill Neuendorf, Economic Development Manager
Item Activity:
Subject:Approve G rant Agreement with Arbor S unnyside
P roperties LLC
Ac tion
Edina Housing and Redevelopment
Authority
Established 1974
C ITY O F E D IN A
HO US I NG & R EDEVELO P MENT
AUT HO 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 grant agreement with Arbor Sunnyside P roperties L L C .
I N TR O D U C TI O N:
T his grant agreement is also related to the new coffee shop and crepe bakery located at 4408 F rance Avenue.
While the tenant is responsible for the interior construction and main entrance, the property owner is responsible
for other construction on the site.
T he small parking lot in the rear of the building has not been improved in many years. T he current design creates
a single step into the rear of each tenant space. T his step limits access into the rear entrance of the new Oh
C repe business.
With this grant funding, the property owner will reconstruct the parking lot to eliminate the single step that is a
barrier for all tenant spaces and will create an accessible parking space compliant with modern codes. Without the
grant, the property owner indicates this reconstruction would be cost prohibitive.
S taff recommends approval of the Grant Agreement.
AT TAC HME N T S:
Description
Grant Agreement Arbor Sunnyside Properties LLC
4867-7453-3306\3
GRANT AGREEMENT
Between
EDINA HOUSING AND REDEVELOPMENT AUTHORITY
And
ARBOR SUNNYSIDE PROPERTIES LLC
for the
PARKING IMPROVEMENTS RELATED TO COFFEE SHOP AND BAKERY COMMONLY
KNOWN AS OH CRÊPE!
________________________
Dated as of May 16, 2024
________________________
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4867-7453-3306\3
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ............................................................................................................1
1.01. Definitions................................................................................................................1
ARTICLE 2 REPRESENTATIONS AND WARRANTIES ...........................................................2
2.01. HRA Representations...............................................................................................2
2.02. Grantee Representations ..........................................................................................3
2.03. Use of Property ........................................................................................................4
2.04. Insurance; Vacating Facility ....................................................................................4
ARTICLE 3 THE PROJECT ...........................................................................................................4
3.01. Timing; Plans ...........................................................................................................4
3.02. Certificate of Completion ........................................................................................4
3.03. Progress Reports ......................................................................................................5
3.04. Access to Property ...................................................................................................5
3.05. Subordination ...........................................................................................................5
ARTICLE 4 DEFENSE OF CLAIMS; INSURANCE ....................................................................5
4.01. Defense of Claims ....................................................................................................5
ARTICLE 5 GRANT FOR REIMBURSEMENT OF EXPENSES ................................................7
5.01. Development Costs ..................................................................................................7
5.02. Grant. .......................................................................................................................7
5.03. Disbursement Request. ............................................................................................7
5.04. Satisfaction of Conditions Precedent .......................................................................8
5.05. Matching Investment ...............................................................................................8
5.06. Reserved ................................................................. Error! Bookmark not defined.
5.07. Notice of Default......................................................................................................8
5.08 Legal and Administrative Expenses.........................................................................9
ARTICLE 6 PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER ............................9
6.01. Transfer of Property and Assignment ......................................................................9
ARTICLE 7 EVENT OF DEFAULT; FEES ...................................................................................9
7.01. Events of Default .....................................................................................................9
7.02. Remedies on Default ..............................................................................................10
7.03. No Remedy Exclusive............................................................................................10
7.04. Waivers ..................................................................................................................11
7.05. Agreement to Pay Attorneys’ Fees ........................................................................11
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ARTICLE 8 GENERAL PROVISIONS .......................................................................................11
8.01. Conflicts of Interest; HRA Representatives Not Individually Liable ....................11
8.02. Equal Employment Opportunity ............................................................................11
8.03. Restrictions on Use ................................................................................................11
8.04. Titles of Articles and Sections ...............................................................................12
8.05. Business Subsidies Act ..........................................................................................12
8.06. Term of Agreement ................................................................................................12
8.07. Provisions Surviving Termination .........................................................................12
ARTICLE 9 ADMINISTRATIVE PROVISIONS ........................................................................12
9.01. Notices and Demands ............................................................................................12
9.02. Counterparts ...........................................................................................................12
9.03. Binding Effect ........................................................................................................13
9.04. Severability ............................................................................................................13
9.05. Amendments, Changes and Modifications ............................................................13
9.06. Further Assurances and Corrective Instruments ....................................................13
9.07. Captions .................................................................................................................13
9.08. Applicable Law ......................................................................................................13
9.09. Entire Agreement ...................................................................................................13
EXHIBIT A PROPERTY
EXHIBIT B PROJECT DESCRIPTION; QUALIFIED COSTS
EXHIBIT C CERTIFICATE OF COMPLETION
EXHIBIT D GRANT DISBURSEMENT REQUEST
4867-7453-3306\3
GRANT AGREEMENT
THIS Grant Agreement (this “Agreement”), made and entered into as of May 16, 2024,
between the Edina Housing and Redevelopment Authority, a political subdivision of the State of
Minnesota (the “HRA”), and Arbor Sunnyside Properties, LLC, a Minnesota limited liability
company (the “Grantee”).
WITNESSETH:
WHEREAS, pursuant to the temporary authority for use of increment granted by
Minnesota Statutes, Section 469.176, subdivision 4n (the “Act”), on October 28, 2021 the HRA
adopted, and on November 16, 2021, the City of Edina (the “City”) approved a written spending
plan for unobligated tax increment monies for the Southdale 2 TIF District, Pentagon Park TIF
District, and 70th and Cahill TIF District (the “Spending Plan”); and
WHEREAS, pursuant to the Act and the terms set forth in this Agreement, the HRA will
provide a grant of unobligated tax increment revenue to the Grantee to assist Grantee in financing
the reconstruction of parking lot that serves a leased space for a Coffee Shop and Bakery
commonly known as Oh Crêpe! (the “Tenant”) to be located at 4408 France Avenue South in the
City (the “Project”); and
WHEREAS, the Grantee represents that without financial participation by the HRA the
Grantee’s efforts to complete the Project would not be possible.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
obligations set forth in this Agreement, the parties hereto hereby agree as follows:
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4867-7453-3306\3
ARTICLE 1
Definitions
1.01. Definitions.
In this Agreement, unless a different meaning clearly appears from the context:
“Act” means Minnesota Statutes, Section 469.176, subdivision 4n.
“Agreement” means this Agreement, as the same may be from time to time modified,
amended or supplemented.
“Grantee” means Arbor Sunnyside Properties, LLC, a Minnesota limited liability
company.
“Business Subsidies Act” means M.S., Sections 116J.993 through 116J.995.
“Certificate of Completion” means a certification in the form attached hereto as Exhibit C,
to be provided to the Grantee pursuant to this Agreement.
“City” means the City of Edina, Minnesota.
“County” means the Hennepin County, Minnesota.
“Default Notice” means written notice from the HRA to the Grantee setting forth the Event
of Default and the action required to remedy the same.
“Event of Default” means any of the events set forth in Section 7.01 hereof.
“Facility” means the building and parking lot located at 4404-4412 France Ave S, Edina,
MN commonly known as the Sunnyside Shoppes.
“HRA” means the Edina Housing and Redevelopment Authority.
“Indemnified Parties” shall have the meaning set forth in Section 4.01 herein.
“Legal and Administrative Expenses” means the fees and expenses incurred by the HRA
in connection with review and analysis of the development proposed under this Agreement and
the preparation of this Agreement including, but not limited to, attorney and municipal advisor
fees and expenses.
“Grant” means the grant, in the amount not to exceed $24,000, from the HRA to the
Grantee. The actual amount of the Grant shall be the lesser of actual Qualified Costs or 50% of
the total construction cost not to exceed $24,000.
“M.S.” means Minnesota Statutes.
“Plans” means the plans, specifications, drawings and related documents for the work to
be performed by the Grantee on the Property.
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4867-7453-3306\3
“Project” means the full reconstruction of the odd-shaped parking lot to eliminate the single
step that limits access into the rear doorways and to include a new handicapped parking stall per
ADA and MN Accessibility Code to serve the Tenant and the Facility, as described in greater detail
in Exhibit B to this Agreement.
The full reconstruction of the parking lot that serves the Oh Crepe! Tenant as well as other commercial
tenants in the building (The “Project”)
“Property” means real property located at 4404-4412 France Ave S, Edina, Minnesota, and
as legally described in Exhibit A.
“Qualified Costs” means costs incurred by Grantee in connection with the Project, which
are shown on Exhibit B to this Agreement.
“Section” means a Section of this Agreement, unless used in reference to M.S.
“Spending Plan” means the written spending plan for unobligated tax increment monies
for the Southdale 2 TIF District, Pentagon Park TIF District, and 70th and Cahill TIF District
adopted by the HRA on October 28, 2021, and approved by the City on November 16, 2021.
“State” means the State of Minnesota.
“Tenant” means Oh Crepe! LLC.
“Termination Date” means the date this Agreement is terminated or rescinded in
accordance with its terms, but in no event later than the date Grantee receives the Grant funds.
“Unavoidable Delay” means a failure or delay in a party’s performance of its obligations
under this Agreement, or during any cure period specified in this Agreement which does not entail
the mere payment of money, not within the party’s reasonable control, including but not limited to
acts of God, governmental agencies, the other party, strikes, labor disputes (except disputes which
could be resolved by using union labor), fire or other casualty, lack of materials, or declarations of
any state, federal or local government, pandemics, epidemics (including the COVID -19 virus);
provided that within ten (10) days after a party impaired by the delay has actual (as opposed to
constructive) knowledge of the delay it shall give the other party notice of the delay and the
estimated length of the delay, and shall give the other party notice of the actual length of the delay
within ten (10) days after the cause of the delay has ceased to exist. The parties shall pursue with
reasonable diligence the avoidance and removal of any such delay. Unavoidable Delay shall not
extend performance of any obligation unless the notices required in this definition are given as
herein required.
ARTICLE 2
Representations and Warranties
2.01. HRA Representations.
The HRA makes the following representations to the Grantee:
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4867-7453-3306\3
(a) The HRA has the power under State law to enter into this Agreement and
carry out its obligations hereunder.
(b) After each payment by the Grantee on any unforgiven portion of the Note,
the HRA will provide Grantee with a statement showing the remaining amounts of unpaid
interest, if any, and principal.
2.02. Grantee Representations.
The Grantee represents and warrants that:
(a) Grantee is a limited liability company under the laws of the State of
Minnesota and has power to enter into this Agreement and has duly authorized, by all
necessary corporate action, the execution and delivery of this Agreement.
(b) Grantee will, subject to and as required by Agreement, complete or cause
to be completed the Project in accordance with the terms of this Agreement, and all
applicable local, state and federal laws and regulations.
(c) At such time or times as may be required by law, the Grantee will comply,
or cause compliance with, all local, state and federal environmental laws and regulations
applicable to the Project, and will obtain or cause to be obtained any and all necessary
environmental reviews, licenses and clearances. The Grantee has received no written
notice from any local, state or federal official that the activities of the Grantee or the HRA
with respect to the Property may be or will be in violation of any environmental law or
regulation. The Grantee has no actual knowledge of any facts the existence of which would
cause it to be in violation of any local, state or federal environmental law, regulation or
review procedure with respect to the Property.
(d) Neither the execution or delivery of this Agreement, the consummation of
the transactions contemplated hereby, nor the fulfillment of or compliance with the terms
and conditions of this Agreement is prevented by, limited by, conflicts with, or results in a
breach of, any restriction, agreement or instrument to which the Grantee is now a party or
by which the Grantee is bound.
(e) The Grantee has no actual knowledge that any member of the Board of the
HRA, or any other officer of the HRA or the City has any direct or indirect financial interest
in the Grantee, the Property, or the Project.
(f) The Grantee will use commercially reasonable efforts to obtain, in a timely
manner, all required permits, licenses and approvals, and will meet, in a timely manner, all
requirements of all local, state and federal laws and regulations which must be obtained or
met in connection with the Project. Without limitation to the foregoing, the Grantee will
request and seek to obtain from the City all necessary variances, conditional use permits
and zoning changes related to the Project.
(g) The Grantee would not undertake the Project without the financial
assistance to be provided by the HRA pursuant to this Agreement.
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4867-7453-3306\3
2.03. Use of Property. The Grantee’s use of the Property shall be subject to and in
compliance with all of the conditions, covenants, restrictions and limitations imposed by this
Agreement, any lease or sublease, and all applicable laws, ordinances and regulations. The
Grantee hereby represents and warrants that to its knowledge there is no existing event or
circumstance that would hinder the Project as contemplated by this Agreement.
2.04. Insurance; Vacating Facility.
The Grantee will, at its expense, carry such type and amount of insurance as is standard
commercially and as may be required under any lease, including, but not limited to, general
liability, property, business interruption, and automobile liability insurance. Upon any damage or
destruction of the Facility, or any portion thereof, by fire or other casualty, Grantee shall use
commercially reasonable efforts to remain in the Facility subject to rights and obligations set forth
in any lease. If, upon damage or destruction of the Facility, Grantee decides to vacate the Facility
prior to delivery of a Certificate of Completion, the HRA shall not be required to provide the Grant
contemplated herein.
ARTICLE 3
The Project
3.01. Timing; Plans. At the HRA’s request, the Grantee shall make Plans for the Project
available to the HRA for review.
(a) Subject to Unavoidable Delay and approved extensions by the HRA in
writing, Grantee shall cause the Project to commence within six months after the date of
this Agreement and be substantially completed in accordance with the terms of the this
Agreement within twelve (12) months after the commencement date.
(b) The Grantee shall not interfere with, or construct any improvements over,
any public street or utility easement without the prior written approval of the HRA. All
connections to public utility lines and facilities shall be subject to approval of the HRA (in
accordance with City code) and any applicable private utility provider. Except for public
improvements undertaken by the HRA or another governmental body and assessed against
benefited properties, all street and utility installations, relocations, alterations and
restorations shall be at the Grantee’s expense and without expense to the HRA. The
Grantee, at its own expense, shall replace any public facilities or utilities damaged during
the Project by the Grantee or its agents or by others acting on behalf of or under the
direction or control of the Grantee.
3.02. Certificate of Completion.
(a) Upon the Grantee’s request and following the HRA’s certification that the
Project is completed to the reasonable satisfaction of the Chair and Secretary of the HRA,
or their designees, the Chair and Secretary of the HRA, or their designees, will furnish the
Grantee with a Certificate of Completion for the Project, in substantially the form attached
hereto as Exhibit C, as conclusive evidence of satisfaction and termination of the
agreements and covenants of this Agreement with respect to the obligations of the Grantee
to complete the Project. The furnishing by the Chair and Secretary of the HRA, or their
5
4867-7453-3306\3
designees, of such Certificate of Completion shall not constitute evidence of compliance
with or satisfaction of any obligation of the Grantee or owner to any mortgagee.
(b) The following conditions are also required prior to the Chair and Secretary
of the HRA furnishing a Certificate of Completion to Grantee:
The Edina Engineering Department must provide approval for any
exterior site work that requires permit;
Grantee has provided to the HRA paid invoices, lien waivers or
equivalent documents to confirm that all Qualified Costs to be
reimbursed with the Grant funds have been paid; and
Grantee must not be in violation of any applicable wage theft laws.
(c) If the Chair and Secretary of the HRA, or their designees, shall refuse or fail
to provide a Certificate of Completion following the Grantee’s request, the Chair and
Secretary of the HRA shall, within twenty-one (21) days after the Grantee’s request,
provide the Grantee with a written statement specifying in what respects the Grantee has
failed to complete the Project in accordance with this Agreement, or is otherwise in default,
and what measures or acts will be necessary, in the reasonable opinion of the Chair and
Secretary of the HRA, for the Grantee to obtain the Certificate of Completion.
3.03. Progress Reports. Until the Certificate of Completion is issued for the Project, the
Grantee shall make, in such detail as may reasonably be required by the HRA, and forward to the
HRA, upon demand by the HRA (provided such demand shall not be made more frequently than
monthly in the absence of an Event of Default hereunder), a written report as to the actual progress
of the Project.
3.04. Access to Property. Subject to any lease, the Grantee agrees to permit the HRA
and any of its officers, employees or agents access to the Property at all reasonable times for the
purpose of inspection of all work being performed in connection with the Project; provided,
however, that the HRA shall not have an obligation to inspect such work.
3.05. Subordination. By written consent of the HRA, which consent shall not be
unreasonably withheld, the HRA may subordinate any or all of its rights under this Agreement to
any lease.
ARTICLE 4
Defense of Claims; Insurance
4.01. Defense of Claims.
(a) The Grantee shall indemnify and hold harmless the HRA, its governing
body members, officers, and agents including the independent contractors, consultants, and
legal counsel, servants and employees thereof (hereinafter, for the purposes of this Section,
collectively the “Indemnified Parties”) for any expenses (including reasonable attorneys’
fees), loss (excluding consequential, special or punitive damages except to the extent
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payable to third parties by any Indemnified Parties), damage to property, or death of any
person occurring at or about, or resulting from any defect in, the Project; provided,
however, the Grantee shall not be required to indemnify any Indemnified Party for any
claims or proceedings arising from any negligent, intentional misconduct, or unlawful acts
or omissions of such Indemnified Party, or from expenses, damages or losses that are
eligible to be reimbursed by insurance. Promptly after receipt by the HRA of notice of the
commencement of any action in respect of which indemnity may be sought against the
Grantee under this Section 4.01, such person will notify the Grantee in writing of the
commencement thereof, and, subject to the provisions hereinafter stated, the Grantee shall
assume the defense of such action (including the employment of counsel, who shall be
counsel reasonably satisfactory to the HRA) and the payment of expenses insofar as such
action shall relate to any alleged liability in respect of which indemnity may be sought
against the Grantee. The HRA shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of such counsel
shall not be at the expense of the Grantee unless the employment of such counsel has been
specifically authorized by the Grantee. Notwithstanding the foregoing, if the HRA has
been advised by independent counsel that there may be one or more legal defenses available
to it which are different from or in addition to those available to the Grantee, the Grantee
shall not be entitled to assume the defense of such action on behalf of the HRA, but the
Grantee shall be responsible for the reasonable fees, costs and expenses (including the
employment of counsel) of the HRA in conducting their defense. The Grantee shall not be
liable to indemnify any person for any settlement of any such action effected without the
Grantee’s consent. The omission to notify the Grantee as herein provided will not relieve
the Grantee from any liability which it may have to any Indemnified Party pursuant hereto,
otherwise than under this Section.
(b) The Grantee agrees to protect and defend the Indemnified Parties, and
further agrees to hold the aforesaid harmless, from any claim, demand, suit, action or other
proceeding whatsoever by any person or entity arising or purportedly arising from the
actions or inactions of the Grantee (or other persons acting on its behalf or under its
direction or control) under this Agreement, or the transactions contemplated hereby or the
acquisition, construction, installation, ownership, and operation of the Project; provided
that this indemnification shall not apply to the warranties made or obligations undertaken
by the HRA in this Agreement or to any actions undertaken by the HRA which are not
contemplated by this Agreement but shall, in any event, apply to any pecuniary loss
(excluding consequential, special or punitive damages except to the extent payable to third
parties by any of the Indemnified Parties) or penalty (including interest thereon from the
date the loss is incurred or penalty is paid by the HRA at a rate equal to the prime rate) as
a result of the Project, as constructed and operated by the Grantee, or to violate limitations
as to the use of the revenues therefrom as set forth in the Act.
(c) All covenants, stipulations, promises, agreements and obligations of the
HRA contained herein shall be deemed to be the covenants, stipulations, promises,
agreements and obligations of the HRA and not of any governing body member, officer,
agent, servant or employee of the HRA, as the case may be.
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ARTICLE 5
Grant for Reimbursement of Expenses
5.01. Development Costs The Grantee has agreed to and shall be responsible to pay or
cause to be paid all of its respective costs of the Project, as herein provided. However, the HRA,
in order to encourage the Grantee to proceed with the Project, and to assist the Grantee in paying
the costs thereof, is willing to provide the Grant.
5.02. Grant.
The HRA agrees to provide the Grantee a grant of unobligated incremental property taxes.
The actual amount of the Grant shall be the lesser of actual Qualified Costs or 50% of the total
construction cost not to exceed $24,000.
The HRA shall provide the Grant to Grantee upon satisfaction of the conditions precedent
set forth in Section 5.04 below. Within thirty (30) business days of approval of the Disbursement
Request by the HRA as set forth in Section 5.03 below, the HRA shall provide the Grant to the
Grantee via check or wire transfer.
(a) The Grant shall not be made by the HRA to the Grantee unless and until the
Grantee has provided written evidence reasonably satisfactory to the HRA that
(i) Qualified Costs or the total amount of construction costs have been incurred for the
Project and paid by the Grantee as demonstrated by paid invoices and lien waivers and (ii)
the conditions precedent set forth in Section 5.04 below have been satisfied.
(b) The HRA shall not be obligated to provide the Grant to the Grantee
subsequent to the termination of this Agreement as provided in Section 8.06 hereof.
(c) Upon written consent from the HRA, which consent shall not be
unreasonably withheld, the Grantee may assign its rights under this Agreement to secure
financing incurred by the Grantee to pay costs of the Project, or, after a Certificate of
Completion has been issued by the HRA, to third parties.
5.03. Disbursement Request.
Upon payment by the Grantee of Qualified Costs or the total construction costs for the
Project, the Grantee will deliver to the HRA (a) an instrument executed by the Grantee in
substantially the form attached hereto in Exhibit D (i) specifying the amount and nature of the
Qualified Costs of the Project to be reimbursed or the total amount of construction costs incurred
and (ii) certifying that such costs have been paid to third parties unrelated to the Grantee, or if any
costs have been paid to third parties related to the Grantee, that such costs do not exceed the
reasonable and customary costs of services, labor or materials of comparable quality,
dependability, availability and other pertinent criteria and that such costs have not previously been
contained in an instrument furnished by Grantee to HRA pursuant to this Section 5.03; and (b)
evidence reasonably satisfactory to the HRA of the payment by the Grantee of such costs
(collectively, the “Disbursement Request”). Within ten (10) days after the Grantee’s submission
of the Disbursement Request to the HRA, the HRA shall either approve the Disbursement Request
or provide the Grantee with a written statement specifying what additional information the HRA
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needs with respect to the Disbursement Request. Thereafter, the HRA will provide to the Grantee
the Grant amount as provided in Section 5.02(a) above and subject to the conditions precedent in
Section 5.04 below.
5.04. Satisfaction of Conditions Precedent. Notwithstanding anything to the contrary
contained herein, the HRA’s obligation to provide the Grant to Grantee shall be subject to
satisfaction, or waiver in writing by the HRA, of all of the following conditions precedent:
(a) the conditions precedent in Section 5.03 hereof have been satisfied;
(b) the Grantee has satisfied the Matching Investment requirement in Section
5.05 below; and
(c) the Grantee shall not be in default under the terms of this Agreement beyond
any applicable cure period;
In the event that all of the above conditions required to be satisfied as provided in this
Section 5.04 have not been satisfied by July 31, 2025 (subject to Unavoidable Delay), either the
HRA or the Grantee may terminate this Agreement if such conditions are not satisfied within thirty
(30) days following notice to the non-terminating party by the terminating party. Upon such
termination, the provisions of this Agreement relating to the Project shall terminate and, except as
provided in Article 8, neither the Grantee nor the HRA shall have any further liability or obligation
to the other hereunder.
5.05. Matching Investment. Grantee is required to invest at least two times (2x) the Grant
amount in total construction costs for the Facility. The total construction cost includes hard and
soft costs as well as eligible and ineligible Grant expenses.
5.06. Additional Conditions. The following are additional conditions the Grantee must
abide by for the term of this Agreement. Failure to abide by these conditions, without a written
consent or waiver from the HRA, shall constitute an Event of Default under Section 7.01:
(a) parking lot shall be available for use by any employee, customer, client or associate of
any tenant in the Facility during normal business hours.
5.07. Notice of Default. Whenever the HRA shall deliver any notice or demand to the
Grantee with respect to any breach or default by the Grantee in its obligations or covenants under
this Agreement, the HRA shall at the same time forward a copy of such notice or demand to each
investor, lender, or holder of any permitted mortgage, lien or other similar encumbrance at the last
address of such holder shown in the records of the HRA. Each such investor, lender, or holder
shall have the right, at its option, to cure or remedy such breach or default and to add the cost
thereof to the mortgage debt and the lien of its mortgage; provided that if the breach or default is
with respect to construction of the Project, nothing contained in this Agreement shall be deemed
to permit or authorize such holder, either before or after foreclosure or actio n in lieu thereof, to
undertake or continue the construction or completion of the Project without first having expressly
assumed the obligation to the HRA, by written agreement satisfactory to the HRA, to complete the
construction of the Project in accordance with the plans and specifications therefor and this
Agreement. Any such holder who shall properly complete the construction of the Project shall be
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entitled, upon written request made to the HRA, to a certification by the HRA to such effect in the
manner provided in Section 3.02.
5.08 Legal and Administrative Expenses. The HRA agrees to pay all Legal and
Administrative Expenses that are incurred in connection with the negotiation, approval and
documentation of this Agreement. The Grantee agrees to pay all legal and administrative expenses
of any amendments to this Agreement.
ARTICLE 6
Prohibitions Against Assignment and Transfer
6.01. Transfer of Property and Assignment. Until such time as the Certificate of
Completion is issued, Grantee will not assign its interest in the Facility to any third party without
the prior consent of the HRA, such consent not to be unreasonably withheld, conditioned, or
delayed. Provided that no Event of Default exists hereunder, any such approved assignment shall
release the Grantee from its obligations hereunder upon execution and delivery to the HRA by the
transferee or assignee of an instrument in form and substance satisfactory to the HRA by which
the assignee assumes the obligations of the Grantee hereunder.
Except as set forth in the immediately preceding paragraph, in the absence of specific
written agreement by the HRA to the contrary, no approval of any assignment by the HRA thereof
with respect to any assignment shall be deemed to relieve the Grantee, or any other party bound in
any way by this Agreement or otherwise with respect to the completion of the Project, from any
of their obligations with respect thereto.
ARTICLE 7
Event of Default; Fees
7.01. Events of Default. Subject to Unavoidable Delay, the following shall be “Events
of Default” under this Agreement and the term “Event of Default” shall mean, whenever it is used
in this Agreement (unless the context otherwise provides), any one or more of the following events
which occurs and continues for more than thirty (30) days after written notice by the defaulting
party of such default (and the term “default” shall mean any event which would with the passage
of time or giving of notice, or both, be an “Event of Default” hereunder):
(a) Failure of the Grantee to complete the Project as required hereunder.
(b) Failure of the Grantee or the HRA to observe and perform any other material
covenant, condition, obligation or agreement on its part to be observed or performed
hereunder.
(c) Filing of any voluntary petition in bankruptcy or similar proceedings by the
Grantee; general assignment for the benefit of creditors made by the Grantee or admission
in writing by the Grantee of inability to pay its debts generally as they become due; or
filing of any involuntary petition in bankruptcy or similar proceedings against the Grantee
which are not dismissed or stayed within sixty (60) days.
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7.02. Remedies on Default. In the event the HRA desires to exercise any of its rights or
remedies as provided herein or otherwise available to the HRA at law or in equity, the HRA shall
first provide written notice to Grantee setting forth with specific particularity the Event of Default
and the action required to cure or remedy the same (the “Default Notice”). Grantee or any
transferee or assignee under Section 6.01 hereof, shall have thirty (30) days from receipt of a
Default Notice to cure or remedy the Event of Default specified in the Default Notice, or such
longer period as may be reasonably required to complete the cure as soon as reasonably possible
under the circumstances. If, following Grantee’s receipt of a Default Notice, Grantee does not
cure or remedy the Event of Default therein specified within the time provided above, the HRA
may take any one or more of the following actions at any time prior to Grantee’s curing or
remedying the Event of Default:
(a) Suspend its performance under this Agreement until it receives assurances
from Grantee, deemed reasonably adequate by the HRA, that Grantee will cure its default
and continue its performance under this Agreement.
(b) In the case of a material default that is not cured within a reasonable period
of time, terminate all rights of Grantee under this Agreement.
(c) Withhold the Certificate of Completion.
(d) Take whatever action at law or in equity may appear necessary or desirable
to the HRA to enforce performance and observance of any obligation, agreement, or
covenant of Grantee under this Agreement.
In the event the HRA should fail to observe or perform any covenant, agreement or
obligation of the HRA on their part to be observed and performed under this Agreement, Grantee
may take any one or more of the following actions:
(a) Suspend its performance under this Agreement until it receives assurances
from the HRA deemed adequate by Grantee, that the HRA will cure its default and continue
its performance under this Agreement.
(b) In the case of a material default that is not cured within a reasonable period
of time, terminate all rights of the HRA under this Agreement.
(c) Take whatever action at law or in equity may appear necessary or desirable
to Grantee to enforce performance and observance of any obligation, agreement, or
covenant of the HRA under this Agreement.
7.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to the HRA,
or to the Grantee is intended to be exclusive of any other available remedy or remedies, but each
and every such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or
omission to exercise any right or power accruing upon any default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In order to entitle the HRA, or Grantee
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to exercise any remedy reserved to them, it shall not be necessary to give notice, other than such
notice as may be required under this Agreement.
7.04. Waivers. All waivers by any party to this Agreement shall be in writing. If any
provision of this Agreement is 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.
7.05. Agreement to Pay Attorneys’ Fees. Whenever any Event of Default occurs and the
HRA shall employ attorneys or incur other expenses for the collection of payments due or to
become due or for the enforcement or performance or observance of any obligation or agreement
on the part of the Grantee herein contained, the Grantee agrees that it shall, on demand therefor,
pay to the HRA the reasonable fees of such attorneys and such other expenses so incurred by the
HRA.
ARTICLE 8
General Provisions
8.01. Conflicts of Interest; HRA Representatives Not Individually Liable. No member,
official, employee, or consultant or employee of a consultant of the HRA shall have any personal
interest, direct or indirect, in this Agreement, nor shall any such member, official, consultant or
the consultant’s employees or employee participate in any decision relating to this Agreement
which affects his or her personal interests or the interests of any corporation, partnership, or
association in which he or she is directly or indirectly interested. No member, official, consultant
or consultant’s employee, or employee of the HRA shall be personally liable to Grantee, or any
successor in interest, in the event of any default or breach by the HRA or for any amount which
may become due to Grantee or successors or on any obligations under the terms of this Agreement.
No member, official, consultant or consultant’s employee, or employee of the Grantee shall be
personally liable to the HRA, or any successor in interest, in the event of any default or breach by
the Grantee or for any amount which may become due to the HRA on any obligations under the
terms of this Agreement.
8.02. Equal Employment Opportunity; Minnesota Wage Theft Protection Act. Grantee,
for itself and its successors and assigns, agrees that during the construction of the Project it will
comply with and cause any contractors or subcontractors to comply with any applicable federal,
state and local affirmative action, equal employment, and nondiscrimination laws or regulations
and all labor and wage laws, including all provisions related to Minnesota’s Wage Theft Protection
Act.
8.03. Restrictions on Use. Grantee agrees for itself, and its successors and assigns, and
every successor in interest to the Property, or any part thereof, that Grantee, and such successors
and assigns, shall devote the Property to, and only to and in accordance with, the uses specified in
this Agreement and other agreements entered into between the Grantee and the HRA, and shall
not discriminate upon the basis of race, color, creed, religion, national origin, sex, marital status,
disability, status with regard to public assistance, sexual orientation, or familial status in the sale,
lease, or rental or in the use or occupancy of the Property or any improvements erected or to be
erected thereon, or any part thereof.
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8.04. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections
of this Agreement are inserted for convenience of reference only and shall be disregarded in
construing or interpreting any of its provisions.
8.05. Business Subsidies Act. The Grant shall not exceed $24,000, therefore, the Grant
is not a business subsidy, and the parties will not enter into a business subsidy agreement pursuant
to the Business Subsidies Act.
8.06. Term of Agreement. This Agreement shall terminate on the Termination Date; it
being expressly agreed and understood that the provisions of this Agreement are intended to
survive the expiration and satisfaction of any security instruments placed of record
contemporaneously with this Agreement, if such expiration and satisfaction occurs prior to
Termination Date, as stated in this Section 8.06.
8.07. Provisions Surviving Termination. Sections 4.01 and 7.05 hereof shall for two
years from the Termination Date survive any termination, rescission, or expiration of this
Agreement with respect to or arising out of any event, occurrence, or circumstance existing prior
to the date thereof.
ARTICLE 9
Administrative Provisions
9.01. Notices and Demands. Except as otherwise expressly provided in this Agreement,
a notice, demand, or other communication under this Agreement by any party to another party
shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage
prepaid, return receipt requested, or delivered personally as follows:
(a) in the case of Grantee, addressed to or delivered personally to:
Arbor Sunnyside Properties, LLC
c/o Arbor Commercial Group
PO Box 24386
Minneapolis, MN 55424-0386
Attention: Steve Young
(b) in the case of the HRA, addressed or delivered personally to:
Edina Housing and Redevelopment Authority
4801 W 50th Street
Edina, MN 55424
Attention: Scott Neal, Executive Director
The HRA and the Grantee, by notice given hereunder, may designate different addresses
to which subsequent notices, certificates or other communications should be sent.
9.02. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall constitute one and the same instrument.
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9.03. Binding Effect. This Agreement shall inure to the benefit of and shall be binding
upon the HRA and the Grantee and their respective successors and assigns.
9.04. Severability. In the event any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
9.05. Amendments, Changes and Modifications. This Agreement may be amended or
any of its terms modified only by written amendment authorized and executed by the HRA and
the Grantee. The Chair and HRA Secretary are authorized to execute and deliver amendments and
any documents related to this Agreement on behalf of the HRA. The Executive Director is
authorized to approve time extensions due to documented Unavoidable Delays for up to 90 days.
9.06. Further Assurances and Corrective Instruments. The HRA and the Grantee agree
that they will, from time to time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements hereto and such further instruments as may
reasonably be required for correcting any inadequate or incorrect description of the Property or the
Project or for carrying out the expressed intention of this Agreement.
9.07. Captions. The captions or headings in this Agreement are for convenience only
and in no way define, limit or describe the scope of intent of any provision or Section of th is
Agreement.
9.08. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota without giving effect to the conflict -of-laws
principles thereof.
9.09. Entire Agreement. This Agreement constitutes the entire agreement of the
parties with regard to the subject matter hereof, and supersedes all previous written or oral
representations, agreements and understandings between the parties, whether expressed or
implied.
REMAINDER OF PAGE INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
EDINA HOUSING AND REDEVELOPMENT
AUTHORITY
By
James B. Hovland, Chair
And
James Pierce, Secretary
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me on this ______ day of
_____________ 2024, by James B. Hovland, the Chair, and James Pierce, the Secretary, of the
Edina Housing and Redevelopment Authority, a Minnesota municipal corporation, on behalf of
the corporation.
IN WITNESS WHEREOF, I have set my hand and my official seal this ____ day of
_____________, 2024.
Notary Public
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ARBOR SUNNYSIDE PROPERTIES, LLC, a
Minnesota limited liability company
By:
Print Name:
Its: _____________________
Insert Title:
STATE OF __________ )
) ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me on this ___ day of ___________,
2024, by _____________________, the _____________________ of Arbor Sunnyside
Properties LLC, a Minnesota limited liability company, on behalf of the company.
IN WITNESS WHEREOF, I have set my hand and my official seal this ___ day of
__________, 2024.
Notary Public
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EXHIBIT A
PROPERTY
The real property and interests in such property located in the County of Hennepin, State
of Minnesota and described as follows:
Common Name: Sunnyside Shoppes
Common Address: 4404-4414 France Ave S, Edina, Minnesota
Legal Description
Lot 2 and Lot 3, Block 1, “Fairbairn’s Rearrangement” in Waveland and Waveland Park,
Hennepin County Minnesota, except that part thereof described as follows: Beginning at the
most Southerly corner of said Lot 3, thence running Northwesterly along the Southwesterly line
of said Lot 3 a distance of 51.16 fee; thence running Northeasterly in a straight line hereinafter
described as Line XY, to a point in the Southeasterly line of said Lot 3, which point is distant
48.3 feet Northeasterly from the most southerly corner of said Lot 3 to the point of beginning,
according to the plat thereof on file or of record in the office of the Register of Deeds in and for
said Hennepin County.
Together with an easement over and across that part of the above described excepted tract of land
described as follows: Beginning at a point on the Southwesterly line of said Lot 3, 51.16 feet
Northwesterly from the most Southerly corner thereof; thence running Northeasterly in a straight
line parallel with the Southeasterly line of said Lot 3 a distance of 28.2 feet to the actual point of
beginning of the easement to be described; thence running Southeasterly along the
aforementioned Line XY a distance of 27.86 feet; thence running Southwesterly at right angles
2.95 feet; thence running Northwesterly parallel with said Line XY to a point in the
Northwesterly line of the above described excepted tract of land; thence running Northeasterly
along said Northwesterly line to the actual point of beginning.
NOTE: Said property being registered as is evidenced by Certificate of Title No. 718807.
Parcel ID Number
07-028-24-44-0056
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EXHIBIT B
PROJECT DESCRIPTION; QUALIFIED COSTS
Qualified Costs Generally
Qualified Costs may include:
a) Energy efficient improvements to building shell including but not limited to: glazing and
storefront systems, wall and ceiling insulation, HVAC systems and similar work;
b) Permanent improvements to achieve handicapped accessibility per ADA and MN
Accessibility Code including but not limited to: entrances and exits to building and/or suite,
accessible route to/from handicapped parking stalls to building and/or suite entrances,
customer facilities such as toilet rooms, permanent sales counters, elevators and lifts; and
c) Other permanent improvements to the building that are necessary to occupy a successful
business when approved by the HRA
Project Description
The Project involves the regrading and full reconstruction of the odd-shaped parking lot to
eliminate the single step that limits access into the rear doorways and to include a new handicapped
parking stall per ADA and MN Accessibility Code to serve the new coffee shop and bakery
commonly known as Oh Crepe! (Tenant) and the Facility. The total estimated construction cost
of the common area improvements is approximately $40,000. Specific upgrades to be made that
are considered Qualified Costs include:
Regrading and full reconstruction of the odd-shaped parking lot that is accessed
from the public alley, including the removal of the single step that limits access to
the rear doorways of Oh Crepe! and the other commercial tenants and new striping
to create an accessible parking space per ADA and MN Accessibility Code
The estimated Qualified Costs are listed below that are eligible for reimbursement from the
unobligated tax increment. The list below is non -exhaustive and the amounts assigned to each
category are estimates only and not independent limitations of Grantee’s Qualified Costs.
Reconstruction of parking lot $ 40,000
Estimated Total of Qualified Costs $ 40,000*
* Grantee’s Qualified Cost. The total principal amount of the Grant to reimburse the Grantee for
Qualified Costs of the Project will not exceed $24,000. The actual amount of the Grant shall be
the lesser of actual Qualified Costs or 50% of the total construction cost not to exceed $24,000.
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EXHIBIT C
CERTIFICATE OF COMPLETION
WHEREAS, Arbor Sunnyside Properties, LLC, a Minnesota limited liability company, is
the owner of the Facility on the property (the “Property”) in the County of Hennepin and State of
Minnesota described on Exhibit A of that certain Grant Agreement (the “Agreement”), dated as of
May 16, 2024, between the Grantee and the Edina Housing and Redevelopment Authority; and
WHEREAS, the Property is subject to the provisions of the Agreement; and
WHEREAS, the Grantee has fully and duly performed all of the covenants and conditions
of Grantee under the Agreement with respect to the completion of the Project (as defined in the
Agreement);
NOW, THEREFORE, it is hereby certified that all requirements of the Grantee under the
Agreement with respect to the completion of the Project have been completed and duly and fully
performed, and this instrument is to be conclusive evidence of the satisfac tory termination of the
covenants and conditions of the Agreement as they relate to the completion of the Project. All
other covenants and conditions of the Agreement, including the covenants and conditions related
to the Grant, shall remain in effect and are not terminated hereby.
Dated this ____ day of ____________, 202__.
EDINA HOUSING AND REDEVELOPMENT
AUTHORITY
By
Chair
And
Secretary
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EXHIBIT D
GRANT DISBURSEMENT REQUEST
Name of Grantee: Arbor Sunnyside Properties, LLC (“Grantee”)
Project Description: Full reconstruction of the odd-shaped parking lot to eliminate the single step
that limits access into the rear doorways and to include a new handicapped parking stall per
ADA and MN Accessibility Code to serve the Tenant and the Facility.
Project Address: 4404-4414 France Avenue South
(A) Actual Project Construction Cost incurred by Grantee for the Project $
(B) Actual Amount of Qualified Costs $
Amount Requested (not to exceed 50% of A nor 100% of B nor $24,000) $
The undersigned represents and certifies as follows:
1) Grantee has completed the Project in accordance with that certain Grant Agreement made and entered
into as of May 16, 2024 (the “Grant Agreement”), between the Edina Housing and Redevelopment
Authority (the “HRA”), and the Grantee, and all applicable laws and codes related thereto; and
2) Such costs as detailed herein have been paid to third parties unrelated to the Grantee and any costs paid
to third parties related to the Grantee, do not exceed the reasonable and customary costs of services,
labor or materials of comparable quality, dependability, availability and other pertinent criteria; and
3) Costs detailed herein have not previously been contained in an instrument furnished by the Grantee to
the HRA; and
4) The Grantee has fully and duly performed all other covenants and conditions of Grantee under the Grant
Agreement with respect to the completion of the Project and the disbursement of funds by the HRA.
__________________________
(Signature)
Printed Name:
Date:
Attachments must include:
Copies of paid invoices and/or lien waivers by contractor(s)
For Edina HRA Staff Use Only
Reviewed by:
Date Approved for Payment:
Date: May 16, 2024 Agenda Item #: VI I.C .
To:C hair & C ommis s ioners of the Edina HR A Item Type:
R eport / R ecommendation
F rom:Bill Neuendorf, Economic Development Manager
Item Activity:
Subject:5146 Eden Avenue - Hous ing R eques t for P roposals Disc ussion
Edina Housing and Redevelopment
Authority
Established 1974
C ITY O F E D IN A
HO US I NG & R EDEVELO P MENT
AUT HO R I T Y
4801 West 50th Street
Edina, MN 55424
www.edinamn.gov
A C TI O N R EQ U ES TED:
No formal action needed; for discussion purposes only
I N TR O D U C TI O N:
S taff has received many inquiries from developers since the previous housing developer terminated the purchase
contract for a portion of the property at 5146 Eden Avenue. T he restaurant partner remains strongly interested in
constructing a new restaurant on an adjacent portion of the site.
B ased on suggestions and preferences expressed from the H R A B oard members, staff is preparing a R equest for
P roposal to be released to the real estate development community.
S taff will present key elements of the R F P for discussion. F inal input is requested from the H R A Board before
the R F P document is formally released.
AT TAC HME N T S:
Description
5146 Eden Housing RFP presentation
5146 Eden Avenue
Housing Request for Proposal
Discussion
Staff Presentation to:
Edina HRA Board
May 16, 2024
For Discussion
Housing & Redevelopment Authority
The Site
Housing & Redevelopment Authority
Purpose
Housing & Redevelopment Authority
A “Request for Proposal” will be issued to re-open the search for a housing developer to
achieve redevelopment goals of the HRA
•Open and transparent process
•Maximize outcomes for HRA
•Intended to select the most qualified housing developer(s)
•Site plan details considering using City’s standard development review process
•Purchase price and transaction details will be negotiated as the site plan evolves
Housing & Redevelopment Authority
Nolan Mains
US
Bank D’Amico
Edina
Theatre
Edina
Grill
Pajarito
W. 50 th Street
France AvenueFrance AvenueHazelton Road
York AvenueEdina Promenade & Three Rivers Bike Trail
Four Distinct Elements to create a new Place in Edina
•Public Green Space – common area to serve as resource for the Grandview District
•Restaurant– multi-level facility with indoor and outdoor dining by Jester Concepts
•Parking – combination of new and existing parking resources
•Housing –priority on owner-occupied units; MUST be arranged in combination of
townhouse and traditional multi-family
•Walkability – all elements arranged with walkable and comfortable public realm spaces
Preferred Development Program - Overview
Housing & Redevelopment Authority
Nolan Mains
US
Bank D’Amico
Edina
Theatre
Edina
Grill
Pajarito
W. 50 th Street
France AvenueFrance AvenueHazelton Road
York AvenueEdina Promenade & Three Rivers Bike Trail
Preferred Development Program – General
Site plan as a whole and individual elements must comply with
applicable codes and standards
•Grandview Seven Guiding Principles
•Affordability policy
•Sustainable building policy
•Comprehensive Plan and zoning code
•PUD rezoning anticipated
•Stormwater requirements
•Engineering standards
•ADA and MN Accessibility Code
•Part of Grandview Maintenance District with annual shared costs
Housing & Redevelopment Authority
Nolan Mains
US
Bank D’Amico
Edina
Theatre
Edina
Grill
Pajarito
W. 50 th Street
France AvenueFrance AvenueHazelton Road
York AvenueEdina Promenade & Three Rivers Bike Trail
Preferred Development Program – Site Plan
•Lower height and massing anticipated along
street edges
•Sidewalks and landscaped boulevards along
both street edges
•Internal sidewalks encouraged
•Approx 20 ft setback curb to building face
•Restaurant could remain in existing
location or could be shifted to Eden Ave
frontage if working collaboratively with
Jester Concepts
•Public green space should remain in
existing location but the shape can change
provided that its presence as a welcoming
public space is retained
•Existing grade change incorporated into
the overall site design
•All elements must be well integrated with
comfortable public realm areas and
shared private amenities where practical
•Designed to accommodate fire
department access
•North/south service drivelane anticipated
along railroad property
•Most parking must be indoor or
underground
•Limited surface parking
Housing & Redevelopment Authority
Nolan Mains
US
Bank D’Amico
Edina
Theatre
Edina
Grill
Pajarito
W. 50 th Street
France AvenueFrance AvenueHazelton Road
York AvenueEdina Promenade & Three Rivers Bike Trail
Preferred Development Program - Townhouses
•For sale units
•Required along street edge with front
doors and porches on street
•Approx 12 to 24 units
•Modest scale & size
•Variety of sizes & price points
•10% priced at 80% AMI
•40% priced at 120% AMI
•50% priced at market rate
•Long term affordability secured by
limited equity model or similar
•Limited shared amenities & fees
•Private on-site resident parking
•Shared on-site guest parking
•Variation in architectural styles &
massing
•High quality finishes; brick or stone
preferred along street edge
•Well integrated into site and
neighborhood
Housing & Redevelopment Authority
Nolan Mains
US
Bank D’Amico
Edina
Theatre
Edina
Grill
Pajarito
W. 50 th Street
France AvenueFrance AvenueHazelton Road
York AvenueEdina Promenade & Three Rivers Bike Trail
Preferred Development Program – Multi-Family
•For sale units preferred
•Rental apartments acceptable, but lower priority
•All ages preferred
•age-restricted acceptable but lower priority
•Range of unit sizes and types
•Variety of sizes & price points
•10% of ownership units priced at 80% AMI
•10% of rental units priced at 50% AMI or 20% priced at 60% AMI
•Long term affordability secured by limited
equity model or similar
•Mid-scale height preferred but additional
height acceptable (per Comp Plan) if height is
in center of site, softened by townhouses and
stepbacks
•Limited or no shading of public green space
•Prominent entrance visible from street
•Shared driveway with restaurant
•Private on-site resident parking
•Shared on-site guest parking
•Car share program encouraged on site
•High quality finishes; brick or stone preferred
along street edge
•Well integrated into site and neighborhood
Example Layout A for Illustration Purposes
Housing & Redevelopment Authority
STARBUCK’S BUILDING
AVIDOR
SENIOR HOUSING
PUBLIC PARKING GARAGE
JERRY’S FOODS
5100 EDEN
CONDO, COOP, OR RENTAL
Example Layout B for Illustration Purposes
Housing & Redevelopment Authority
STARBUCK’S BUILDING
AVIDOR
SENIOR HOUSING
PUBLIC PARKING GARAGE
JERRY’S FOODS
5100 EDEN
CONDO, COOP, OR RENTAL
Housing & Redevelopment Authority
Example Cross Section C for Illustration Purposes
CONDO, COOP, OR RENTAL
Housing & Redevelopment Authority
Nolan Mains
US
Bank D’Amico
Edina
Theatre
Edina
Grill
Pajarito
W. 50 th Street
France AvenueFrance AvenueHazelton Road
York AvenueEdina Promenade & Three Rivers Bike Trail
Anticipated Submission Requirements
•Single developer or development teams to deliver both housing elements
•Primary contacts
•Key team members
•General statement of interest
•Examples of relevant experience
•Description of proposed development program
•Proposed land purchase price and conditions
•Brief statement of pricing methodology
•Identification of any limitations or conditions that hinder purchase price
or delivery of proposed project
Anticipated Evaluation and Selection Process
Housing & Redevelopment Authority
•Staff to review proposals for completeness and alignment with
HRA goals
•HRA Board to review proposals in closed session and provide
direction to staff
•Staff to prepare sales contract for HRA Board consideration
•Staff to post selected proposal and tentative contract online for
public review
Housing & Redevelopment Authority
Nolan Mains
US
Bank D’Amico
Edina
Theatre
Edina
Grill
Pajarito
W. 50 th Street
France AvenueFrance AvenueHazelton Road
York AvenueEdina Promenade & Three Rivers Bike Trail
•May 2024 - RFP released
•June 2024 – Staff responds to developer questions
•July 2024 – Proposals Due and evaluated by staff
•August 2024 – HRA Board reviews proposals and selects housing partner(s)
•Fall 2024 – Sketch Plan review to solicit planning & zoning input
•Fall/Winter 2024 – Consideration of revised zoning approvals
•2025/2026 – Detailed planning, financing and ground breaking
•2026/2027 – Phased completion
Anticipated Schedule
Staff is seeking final input from the
HRA Board before it releases the
Housing RFP to the real estate
development community
Comments or Additional
Suggestions?
Housing & Redevelopment Authority
Date: May 16, 2024 Agenda Item #: VI I I.A.
To:C hair & C ommis s ioners of the Edina HR A Item Type:
O ther
F rom:Bill Neuendorf, Economic Development Manager
Item Activity:
Subject:Bus iness S ubsidy P olic y Information
Edina Housing and Redevelopment
Authority
Established 1974
C ITY O F E D IN A
HO US I NG & R EDEVELO P MENT
AUT HO R I T Y
4801 West 50th Street
Edina, MN 55424
www.edinamn.gov
A C TI O N R EQ U ES TED:
No action required; for informational purposes only.
I N TR O D U C TI O N:
Edina's business subsidy policy was last updated in 2011. W hile recent grants and forgivable loans have not been
considered "business subsidies", there may be a future project that is considered a "business subsidy".
B ased on the recommendation of the C ity Attorney, staff will prepare an updated B usiness Subsidy P olicy that is
responsive to the current language in M innesota Statutes.
Next month, the proposed policy will be posted to Better Together Edina and a P ublic Hearing will be scheduled
with the City Council in July. After the policy is approved by City Council, it will be posted on a future H R A
agenda for adoption by the H R A.
T he upcoming policy will be presented to City Council after a public hearing is held. After the new policy is
approved by the C ity C ouncil, it will be placed on the E dina H R A agenda to provide binding guidance for both
the City and the H R A.
Date: May 16, 2024 Agenda Item #: VI I I.B.
To:C hair & C ommis s ioners of the Edina HR A Item Type:
O ther
F rom:Bill Neuendorf, Economic Development Manager
Item Activity:
Subject:T I F S pec ial Legis lation Information
Edina Housing and Redevelopment
Authority
Established 1974
C ITY O F E D IN A
HO US I NG & R EDEVELO P MENT
AUT HO R I T Y
4801 West 50th Street
Edina, MN 55424
www.edinamn.gov
A C TI O N R EQ U ES TED:
No action requested; for informational purposes only.
I N TR O D U C TI O N:
Earlier this year, E dina requested that the State L egislature consider special legislation for the 70th & France and
72nd & F rance 2 Tax Increment F inancing D istricts. T he current plans for these sites call for more than $254
million in private investment on these two sites.
T he progress on each of these projects has been delayed due to increased interest rates and stagnation in the
capital markets that provide debt financing for large scale mixed-use projects.
T he special legislation would extend the time limit and duration of each T I F District so that public financing can
be effective in supplementing the initial private investment from the owners and lenders.
While final language has not yet been adopted, E dina's request has been included in H ouse and S enate bills that
are moving forward. Edina is one of 11 M innesota communities with special T I F language that are included in
these bills.
I n the weeks ahead, the bills are anticipated to be reconciled and signed into law. After that occurs, R esolutions
will be brought to the C ity for consideration and adoption. If the duration of the T I F D istricts is to be extended,
R esolutions of support will also be requested from H ennepin C ounty and the E dina S chool D istrict.
Date: May 16, 2024 Agenda Item #: VI I I.C .
To:C hair & C ommis s ioners of the Edina HR A Item Type:
Advisory C ommunic ation
F rom:Bill Neuendorf, Economic Development Manager
Item Activity:
Subject:Edina Innovation Lab - status update Information
Edina Housing and Redevelopment
Authority
Established 1974
C ITY O F E D IN A
HO US I NG & R EDEVELO P MENT
AUT HO R I T Y
4801 West 50th Street
Edina, MN 55424
www.edinamn.gov
A C TI O N R EQ U ES TED:
No action required; for informational purposes only.
I N TR O D U C TI O N:
T he E dina C hamber of C ommerce initiated the E dina I nnovation L ab in 2022 to support small business growth in
Edina. T he H R A issued a construction loan of $610,000 to assist this effort.
I n the weeks ahead, the E dina C hamber intends to modify the organizational structure of the L ab to better attract
investment and support from the private sector. T he L ab is anticipated to be spun off as a B enefit C orporation
with a parallel non-profit charitable foundation. T he loan repayment schedule has been requested to be modified
to allow the re-organized program to secure a firm foundation. T he loan is still proposed to be repaid, but with
smaller bi-annial payments and a balloon payment in later years.
S taff has been working collaboratively with Chamber leaders for several weeks to identify a workable re-
arrangement that achieves the goals of both Chamber and H R A.
When the C hamber identifies the specific re-organizational details, an amendment to the L oan Agreement will be
brought to the H R A for consideration.