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Agenda-HRA• AUGUST S M T W T F S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 I. CALL TO ORDER SEPTEMBER S M T W T F S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 HOPKINS HRA REGULAR MEETING August 1, 2011 7:25 p.m. II. OPEN AGENDA - PUBLIC COMMENTS MAXWELL BRAUSEN HALVERSON ROWAN YOUAKIM GENELLIE ELVERUM (Public must fill out a Speaker Request form. There is a three- minute limit for each person.) • III.CONSENT AGENDA 1. Approve minutes of the July 5, 2011, regular meeting 2. Approve minutes of the July 19, 2011, special meeting 3. Approve minutes of the July 26, 2011, special meeting 4. Approve disbursements through July 31, 2011 5. ITEM 2011-12 Acceptance of 2011 Hopkins HRA Capital Funds for use at Dow Towers, Resolution 479 6. ITEM 2011-13 Storm sewer easement and maintenance agreement for Marketplace & Main project Recommendation: approve consent agenda Board Action: IV. ADJOURNMENT Board Action: • UN0FF1CV-!,. • MINUTES OF HOPKINS HRA REGULAR MEETING July 5, 2011 A regular meeting of the Hopkins Housing and Redevelopment Authority was held July 5, 2011, at Hopkins City Hall. Present were Chairman Eugene Maxwell and Commissioners Rick Brausen, Kristi Halverson, Bruce Rowan and Cheryl Youakim. Also present were Acting Executive Director James Genellie, Assistant Executive Director Kersten Elverum and City Attorney Jerry Steiner. I. CALL TO ORDER The meeting was called to order at 7:27 p.m. II. OPEN AGENDA - PUBLIC COMMENTS No one from the public came forward to speak. III. CONSENT AGENDA 1. Approve minutes of the June 7, 2011, regular meeting 2. Approve disbursements through June 30, 2011 • Commissioner Brausen moved, Commissioner Halverson seconded, to approve the consent agenda. The motion was approved unanimously. IV. ADJOURNMENT Commissioner Halverson moved, Commissioner Rowan seconded, to adjourn the meeting. The motion was approved unanimously. The meeting adjourned at 7:28 p.m. Eugene J. Maxwell, Chairman James Genellie, Executive Director 0 UNOFFICIAL • MINUTES OF HOPKINS HRA SPECIAL MEETING July 19, 2011 A special meeting of the Hopkins Housing and Redevelopment Authority was held July 19, 2011, at Hopkins City Hall. Present were Chairman Eugene Maxwell and Commissioners Rick Brausen, Kristi Halverson, and Bruce Rowan. Commissioner Cheryl Youakim was absent. Also present were Acting Executive Director James Genellie, Assistant Executive Director Kersten Elverum and City Attorney Jerry Steiner. I. CALL TO ORDER The meeting was called to order at 7:20 p.m. II. CONSENT AGENDA ITEM 2011-10 Amendment to the Note and Mortgage - Marketplace Holdings, Inc. • ITEM 2011-11 Amended Option Agreement - Marketplace Townhomes Holdings, Inc. Mr. Steiner gave a summary of the changes to the mortgage agreement. Commissioner Rowan moved, Commissioner Halverson seconded, to approve the consent agenda. The motion was approved unanimously. III.NEW BUSINESS ITEM 2011-09 Authorize Issuance of Tax Increment Financing Notes for the Marketplace & Main Project Ms. Elverum gave an overview of the Marketplace & Main project and the financial assistance to be provided, including the pledge of tax increment financing as part of the financing package for Phase I (apartments/retail) and Phase II (townhomes). She stated that The Beard Group (Marketplace Holdings, Inc.) is prepared to close on their primary • financing and begin construction. UNOFFICII'l • Minutes of Hopkins HRA Special Meeting, 7/19/11 - Page 2 Ms. Elverum stated that the issuance of notes transaction, as specified in the redevelopment agreement, has been reviewed by the HRA's attorney. The proposed amount of the notes is $1,360,000, which is subject to change based on changes in values, the financing rate and timing of construction. The notes will be repaid from tax increment generated from both phases of the project. There is no obligation for the HRA or the City to make up for a shortfall in tax increment used to pay the notes. The notes are "pay-as-you-go" notes. Commissioner Brausen moved, Commissioner Halverson seconded, to adopt Resolution 478, authorizing the issuance of Limited Revenue Tax Increment Notes for the Marketplace & Main project. The motion was approved unanimously. IV. ADJOURNMENT • Commissioner Brausen moved, Commissioner Rowan seconded, to adjourn the meeting. The motion was approved unanimously. The meeting adjourned at 7:27 p.m. Eugene J. Maxwell, Chairman James Genellie, Acting Executive Director • MINUTES OF HOPKINS HRA SPECIAL MEETING July 26, 2011 A special meeting of the Hopkins Housing and Redevelopment Authority was held July 26, 2011, at Hopkins City Hall. Present were Chairman Eugene Maxwell and Commissioners Rick Brausen, Kristi Halverson, Bruce Rowan, and Cheryl Youakim. Also present were Acting Executive Director James Genellie and Assistant Executive Director Kersten Elverum. I. CALL TO ORDER The meeting was called to order at 6:32 p.m. II.NEW BUSINESS 1. Documents needed to close on Marketplace & Main project financing Ms. Elverum gave a brief overview and asked Mr. Steiner to provide a summary of the agreement and changes requested by the HRA. Mr. Steiner explained that the agreement restates commitments previously made in the Contract for Redevelopment, formerly approved by the HRA. Commissioner Halverson moved, Commissioner Rowan seconded, to approve execution of a Master Subordination Agreement relating to the HRA's lien and associated contracts for the Marketplace & Main project. The motion was approved unanimously. III. ADJOURNMENT Commissioner Brausen moved, Commissioner Youakim seconded, to adjourn the meeting. The motion was approved unanimously. The meeting adjourned at 6:40 p.m. Eugene J. Maxwell, Chairman James Genellie, Acting Executive Director ^AGE. 1 A / 2 CHECK REG7STER c, ril C ii L11 02124 FRA ,.ET: 01 c. S FARGO H'rn Ar WEL7.L B!,K CHECK CHECK ipCHECK CHECK 140# AMOUNT TYPE DATE -DISCOUNT AMOUNT VENDOR NAME / I.D. DESC 012196 400.00 .R 7/05/2011 02804 BURNER SERVICES 012197 605.06 R 7/05/2011 03165 CENTERPOINT ENERGY 012198 17,246.12 R 7/05/2011 03316 CITY OF HOPKINS 012199 100.00 R 7/05/2011 05725 WAYNE ESS 012200 994.00 R 7/05/2011 01182 GENERAL ELECTRIC CO 012201 66.01 R 1/05/2011 08004 HANCE HARDWARE, INC 012202 406.67 R 7/05/2011 27200 HD SUPPLY FACILITIES 1-JAINTENAI4CE 012203 50.00 R 7/05/2011 13336 MIDWEST MAINTENANCE & MECHANICA.L INC 012204 111.76 R 7/05/2011 14160 NEXTEL WEST CORP. 012205 192.00 R 7/05/2011 26965 OCE IMP.GISTICS INC 012206 100.00 R 7/05/2011 28456 BOBBY PARKER 012207 73.88 R 7/05%2011 6 QWEST 012208 79.82 R 7/05/2011 28281 TRUGREEN-Mtka 5640 DISCOUNTS CHECK AMT TOTAL APPLIED ** T O T A L S ** NO# 19,070.32 19,870.32 13 0.00 REGULAR CHECKS: 0.00 0.00 p 0.00 HANDWRITTEN CHECKS: 0.00 0.00 p 0.00 PRE-WRITE CHECKS: 0.00 0.00 p 0.00 DRAFTS: 0.00 0.00 p 0.00 VOID CHECKS: 0.00 0.00 p 0.00 N0ll CHECKS: 0.00 0.00 p 0.00 CORRECTIONS: 0.00 19,870.32 19,870.32 REGISTER TOTALS: 13 TOTAL ERRORS: 0 TOTAL WAF.NINGS: 0 CHECK CHECK CHECK CHECK TYPE DATE DISCOUNT AMOUNT NO# AMOUNT VENDOR NAME / I.D. DESC ** POSTING PERIOD RECAP ** ' FUND ---------------------------- PERIOD --------------- AMOUI4T 001 7/2011 19,870.32CR 19,810.32CR ALL 7/29/2011 11:19 AM PACKET: 02157 HRA 7-29-2011 VENDOR SET: 01 BANK HRA HRA WELLS FARGO 0 VENDOR NAME / I.D. DESC 27274 CITY OF HOPKINS ** T 0 T A L S REGULAR CHECKS: HANDWRITTEN CHECKS: PRE -WRITE CHECKS: DRAFTS: VOID CHECKS: NON CHECKS: CORRECTIONS: REGISTER TOTALS: TOTAL ERRORS: 0 TOTAL WARNINGS: 0 • 7/29/2011 11:19 AM PACKET: 02157 HRA 7-29-2011 VENDOR SET: 01 BANK HRA HRA WELLS FARGO VENDOR NAME / I.D • DESC A / P CHECK REGISTER PAGE: 1 Addition to List of July Disbursements in HRA Packet CHECK CHECK CHECK CHECK TYPE DATE DISCOUNT AMOUNT NO# AMOUNT R 7/29/2011 012232 200,000.00 NO# DISCOUNTS CHECK AMT TOTAL APPLIED , 1 0.00 200,000.00 200,000.00 0 0.00 0.00 0.00 0 0.00 0.00 0.00 0 0.00 0.00 0.00 0 0.00 0.00 0.00 0 0.00 0.00 0.00 0 0.00 0.00 0.00 1 0.00 200,000.00 200,000.00 A / P CHECK REGISTER PAGE: 2 CHECK CHECK CHECK CHECK TYPE DATE DISCOUNT AMOUNT NO# AMOUNT ** POSTING PERIOD RECAP ** FUND PERIOD AMOUNT ------------------------------------------- 001 7/2011 200,000.00CR ALL 2DO,000.00CR • -Ica July 29, 2011 City of Hopkin HRA Report 2011-12 2011 CAPITAL FUNDS PROGRAM Proposed Action Staff recommends adoption of the following motion: Adopt Resolution 479, authorizing HRA Chair and Executive Director to accept and use the 2011 Capital Funds. With approval of this motion, HRA Board Chair and the Executive Director will implement the proper planning and procurement process to utilize the $73,388 the HRA will receive in 2011 Capital Funds from the U.S. Department of Housing and Urban Development. Overview The HRA was recently notified of the availability of the annual Capital Fund Program for 2011. This year the allocation was reduced by almost $10,000 from the amount we were given in 2010. This is due to the cuts to the Federal Capital Fund Program Budget . for all Housing Authorities and each HRA will receive decreased funds this year. Primary Issue to Consider • Why do we need to act? The guidance provided to the Hopkins HRA from the HUD field office indicates that a resolution accepting and authorizing the use of these funds is strongly encouraged. Supporting Information • HRA Resolution 479 Amendment to the Annual Contribution Contract HUD -50075.1 Annual Statement for 2011 Funds Alternatives The HRA has the following alternatives regarding this issue: 1. Approve the action as recommended by staff. 2. Continue for further information. • Stacy Un dusky, Public Housing Manager • HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF HOPKINS Hennepin County, Minnesota RESOLUTION NO. 479 RESOLUTION AUTHORIZING ACCEPTANCE AND USE OF 2011 CAPITAL FUNDS WHEREAS, the Housing and Redevelopment Authority In and For the City of Hopkins, Minnesota, (the "Authority") operates a Low Rent Public Housing Program; and WHEREAS, the Authority and the Department of Housing and Urban Development have entered into a Capital Fund ACC Amendment for Fiscal Year 2011 for the purpose of carrying out capital activities at Dow Towers; NOW, THEREFORE, BE IT RESOLVED, that the Authority Board of Commissioners hereby authorizes the Authority to accept $73,388 in Capital Fund is Program funding and authorizes the use of such funds. Adopted this 1St day of August 2011. Chair ATTEST: Executive Director 0 Capital Fund Program (CFP) Amendment To The Consolidated Annual Contributions Contract (form HUD -63012) U.S. Department of Housing and Urban Development Office of Public and Indian Housing Whereas, (Public Housing Authority) HRA of Hopkins Minnesota (MN078 ) (herein called the "PHA") and the United States of America, Secretary of Housing and Urban Development (herein called 'HUD") entered into Consolidated Annual Contributions Contract(s) ACC(s) Numbers(s) C-942 dated 2/4/1971 Whereas, HUD has agreed to provide CFP assistance, upon execution of this Amendment, to the PHA in the amount to be specified below for the purpose of assisting the PHA in carrying out capital and management activities at existing public housing developments in order to ensure that such developments continue to be available to serve low-income families. HUD reserves the right to provide additional CFP assistance in this FY to the PHA HUD will provide a revised ACC Amendment authorizing such additional amounts. $ 73.388.00 for Fiscal Year 2011 to be referred to under Capital Fund Grant Number MN46PO7850111 PHA Tax identification Number (TIN):On File DUNS Number:On File Whereas, HUD and the PHA are entering into the CFP Amendment Number, Now Therefore, the ACC(s) is (are) amended as follows: Regardless of the selection above, the 24 month time period in which the PHA 1.The ACC(s) is (are) amended to provide CFP assistance in the amount must obligate this CFP assistance pursuant to section 9(j)(1) of the United specified above for capital and management activities of PHA developments. States Housing Act of 1937, as amended, (the "Act') and 48 month time period This amendment is a part of the ACC(s). in which the PHA must expend this CFP assistance pursuant to section 96)(5) of the Act starts with the effective date of this CFP amendment (the date on 2. The capital and management activities shall be carried out in accordance with all HUD regulations and other requirements applicable to the Capital Fund Program. 3. (Check one) a. For Non-qualified PHAs: (1) In accordance with the HUD regulations, the Annual PHA Plan has been adopted by the PHA and approved by HUD, and may be amended from time to time. The capital and management activities shall be Gamed out as described in the CFP Annual Statament/Performance and Evaluation Report (HUD -50075.1). OR (ii) If the Annual PHA Plan has not been adopted by the PHA and approved by HUD, the PHA may use its CFP assistance under this contract for work items contained in its CFP -Five -Year Action Plan (HUD -50075.2), before the Annual PHA Plan Is approved. b. For Qualified PHAs: '✓ (i) The CFP Annual Statement/Performance and Evaluation Report (HUD -50075.1) has been adopted by the PHA and verified by HUD. The capital and management activities shall be carried out as described therein. OR (i) If the CFP Annual Statement/Performance and Evaluation Report has not been adopted by the PHA and/or verified by HUD, the PHA may use Its CFP assistance underthis contract for work items contained in its approved CFP 5 -Year Action Plan (HUD -50075.2), before the CFP Annual Statement/Performance and Evaluation Report is adopted by the PHA and verified by HUD. For cases where HUD has approved a Capital Fund Financing Amendment to the ACC (CFF Amendment attached), HUD will,deduct the payment for amortization scheduled payments from the grant immediately on the effective date of this CFP Amendment. The payment of CFP funds due per the amortization scheduled will be made directly to a designated trustee (Trustee Agreement attached) within 3 days of the due date. which CFP assistance becomes available to the PHA for obligation). Any additional CFP assistance this FY will start with the same effective date. 4. Subject to the provisions of the ACC(s) and paragraph 3. and to assist in the capital and management actvlties, HUD agrees to disburse to the PHA or the designated trustee from time to time as needed up to the amount of the funding assistance specified herein. 5. The PHA shall continue to operate each development as tow -income housing in compliance with the ACC(s), as amended, the Act and all HUD regulations for a period of twenty years after the last disbursement of CFP assistance for modernization activities for any public housing or portion thereof and for a period of forty years after the last distribution of CFP assistance for development activities for any public housing and for a period often years following the last payment of assistance from the Operating Fund to the PHA. However, the provisions of Section 7 of the ACC shall remain in effect for so long as HUD determines there is any outstanding indebtedness of the PHA to HUD which arose in connection with any development(s) under the ACC(s) and which is not eligible for forgiveness, and provided further that, no disposition of any development covered by this amendment shall occur unless approved by HUD. 6. The PHA will accept all CFP assistance provided for this FY. If the PHA does not comply with any of its obligations under this Amendment and does not have its Annual PHA Plan approved within the period specified by HUD, HUD shall impose such penalties or take such remedial action as provided by law. HUD may direct the PHA to terminate all work described in the Capital Fund Annual Statement of the Annual PHA Plan. In such case, the PHA shall only incur additional costs with HUD approval. 7. Implementation or use of funding assistance provided under this Amendment is subject to the attached corrective action order(s). (mark one) : ❑ Yes No 8. The PHA acknowledges its responsibility for adherence to this Amendment. The parties have executed this Agreement, and it will be effective cn^8/3/2011 . This is the date on which CFP assistance becomes available to the PHA for obligation. Department of Housing and Urban By entPH { Date: I By Title Title 0,&� Date: 7421. • Previous versions obsolete V form HUD -52840-A 03/04/2003 • • • Annual Statement/Performance and Evaluation Report Capital Fund Program, Capital Fund Program Replacement Housing Factor and Capital Fund Financing Program U.S. Department of Housing and Urban Development Office of Public and Indian Housing OMB No. 2577-0226 Expires 4/30/2011 • Part I: Summary PHA Name: Hopkins HRA Grant Type and Number Capital Fund Program Grant No: MN46P07850111 Replacement Housing Factor Grant No: Date of CFFP: FFY of Grant: 2011 FFY of Grant Approval: Type of Grant $jOriginal Annual Statement ❑Reserve for Disasters/Emergencies ❑Performance andEvaluation Report for Period Ending: []Revised Annual Statement (revision no: ) ❑Final Performance and Evaluation Report Line Summa by Development Account Total Estimated Cost Total Actual Cost r Original Revised a Obligated Expended 1 Total non -CFP Funds 2 14060 rations (may not exceed 20% o{line 21 3 1408 Management Improvements 4 1410 Administration (may not exceed 10% of line 21 5 1411 Audit 6 1415 Liquidated Damages 7 1430 Fees and Costs 20,000 8 1440 Site Acquisition 9 1450 Site Improvement 53.388 10 1460 Dwelling Structures 11 1465.1 Dwelling E ui ment Nonex endable 12 1470 Non -dwelling Structures 13 1475 Non -dwelling Equipment 14 1485 Demolition 15 1492 Moving to Work Demonstration 16 1495.1 Relocation Costs I7 1499 Development Activities ` 18a 1501 Collateralization or Debt Service paid by the PHA 18ba 9000 Collateralization or Debt Service paid Via System of Direct Payment 19 1502 Contingency (may not exceed 8% of line 20)" 20 Amount of Annual Grant: (sum of 1 ines 2 —19) 73,388 21 Amount of line 20 Related to LBP Activities 22 Amount of line 20 Related to Section 504 Activities 23 Amount of line 20 Related to Security — Soft Costs 24 Amount of line 20 Related to Security — Hard Costs 25 Amount of line 20 Related to Energy Conservation Measures 'To be completed for the Performance and Evaluation Report. 2 To be completed for die Performance and Evaluation Report or a Revised Annual Statement r PHAs with under 250 units in management may use 100% of CFP Grants for operations. 4 RBF funds shall be included here. Page 1 of 6 form HUD -50075.1 (4/2008) Annual Statement/Performance and Evaluation Report Capital Fund Program, Capital Fund Program Replacement Housing Factor and Capital Fund Financing Program U.S. Department of Housing and Urban Development Office of Public and Indian Housing Expires 4/30/2011 Part 1: Summary PHA Name: Grant Type and Number Capital Fund Program GrentNo:MN46Po7850111 Replacement Housing Factor Grant No: FFY of Grant: 2011 Hopkins HRA Date ofCFFP: FFY of Grant Approval: Type of Grant DOriginal Annual Statement ❑Reserve for Disasters/Emergencies ❑Revised Annual Statement (revision no: Performance and Evaluation Report for Period Ending: []Final Performance and Evaluation Report Line Summary by Development Account Total Estimated Cost Total Actual Cost ` Original Revised = Obligated Ex ended Signature of E�ecuti Director // n I �D Date 7/., Signature of Public Dousing Director Date L� Page 2 of 6 form HUD -50075.1 (4/2008) • -- - 0 ----- ---- - -- - 0 Annual Statement/Performance and Evaluation Report U.S. Department of Housing and Urban Development Capital Fund Program, Capital Fund Program Replacement Housing Factor and Office of Public and Indian Housing Capital Fund Financing Program Expires 4/30/2011 Part H: Supporting Pages PHA Name: Hopkins HRA Grant Type and Number Capital Fund Program Grant No: MN46PO7850111 CFpP (yes/No): Re lacement Housing Factor Grant No: Federal FFY of Grant: 2011 Development Number Name/PHA-Wide Activities General Description of Major Work Development Categories Account No. Quantity Total Estimated Cost Total Actual Cost Status of Work Original Revised Funds Funds Obligated 2Expended z MN 078001 Stairway Reater Replacement 1450 2 11,000 MN 078 001 Outdoor Car Heaters & Posts 1450 10 9,000 MN 078 001 Concrete, Curb & Panting Lot Project 1450 1 33,388 MN 078 001 Architect & Design for Kitchen Rehab 1430 1 20,000 1 To be completed for the Performance and Evaluation Report or a Revised Annual Statement. Z To be completed for the Performance and Evaluation Report. 'Page 3 of 6 form HUD -50075.1 (4/2008) Annual Statement/Performance and Evaluation Report Capital Fund Program, Capital Fund Program Replacement Housing Factor and Capital Fund Financing Program U.S. Department of Housing and Urban Development Office of Public and Indian Housing Expires 4/30/2011 Part H: Supporting Pages PHA Name: Hopkins HRA Grant Type and Number MN46P07850111 Capital Fund Program Grant No: CFFP (Yes/ No): Re lacement Ho ing Factor Grant No: Federal FFY of Grant: 2011 Development Number Name/PHA-Wide Activities Gencral Description of Major Work Development Quantity Total Estimated Cost Categories Account No. Total Actual Cost Status of Work Original Revised Funds Obligated Funds z Expended 2 t To be completed for the Performance and Evaluation Report or a Revised Annual Statement. Z To be completed for the Performance and Evaluation Report. Page 4 of 6 form HUD -50075.1 (4/2008) Annual Statement/Performance and Evaluation Report Capital Fund Program, Capital Fund Program Replacement Housing Factor and Capital Fund Financing Program U.S. Department of Housing and Urban Development Office of Public and Indian Housing Expires 4/30/2011 Part III: Implementation Schedule for Capital Fund Financing Program PHA Name: Hopkins HRA Federal FFX of Grant: 2011 Development Number Name/PHA-Wide Activities All Fund Obligated (Quarter Ending Date) All Funds Expended Reasons for Revised Target Dates (Quarter Ending Date) Original Obligation Actual Obligation End Date End Date Original Expenditure Actual Expenditure End Date End Date MN 078 001 08/02/2013 08/02/2015 1 Obligation and expenditure end dated can only be revised with HUD approval pursuant to Section 9j of the U.S. Housing Act of 1937, as amended. Page 5 of 6 form HUD -50075.1 (4/2008) Annual Statement/Performance and Evaluation Report Capital Fund Program, Capital Fund Program Replacement Housing Factor and Capital Fund Financing Program U.S. Department of Housing and Urban Development Office of Public and Indian Housing Expires 4/30/2011 Part III: Implementation Schedule for Capital Fund Financing Program PHA Name: Hopkins HRA Federal FFY of Grant: 2011 Development Number Name/PITA-Wide Activities All Fund Obligated (Quarter Ending Date) All Funds Expended Reasons for Revised Target Dates (Quarter Ending Date) Original Obligation Actual Obligation End Date End Date Original Expenditure Actual Expenditure End Date End Date ' Obligation and expenditure end dated can only be revised with HUD approval pursuant to Section 9j of the U.S. housing Act of 1937, as amended. Page 6 of 6 form HUD -50075.1 (4/2008) GITY OF I* 0 July 29, 2011 N O P K I N S HRA Report 2011-13 MARKETPLACE & MAIN STORM SEWER EASEMENT AND MAINTENANCE AGREEMENT Proposed Action Staff recommends adoption of the following motion: Move to approve the Marketplace & Main Storm Sewer Easement and Maintenance Agreement. With this motion the HRA gives their approval for the easement and maintenance agreement. Overview As a lender with interest in the Marketplace & Main site, the HRA has been asked to approve a Storm Sewer Easement and Maintenance Agreement. The agreement will allow a cross -easement between the Marketplace & Main apartment building and the townhome development across 7th Avenue. The consent of the HRA as lender is a requirement of HUD financing • The agreement provides for a drainage and utility easement for the construction, installation and shared beneficial use of a storm water treatment system to be constructed on the townhome parcel, as well as access rights for maintenance, repair and replacement purposes. 0 Primary Issues to Consider The agreement is between two private parties, but as a mortgage holder, the HRA must grant their approval of the agreement. Staff has reviewed the agreement and feels there is no negative impact on our position as mortgage holder. Supporting Documents & MaK9tovIVSewer Easement and Maintenance Agreement Kersten,Elverum Direct of Planning & Development Financial Impact: $ 0 Budgeted: Y/N Source: Related Documents (CIP, ERP, etc.): Notes: • (RESERVED FOR RECORDING INFORMATION) STORM SEWER EASEMENT AND MAINTENANCE AGREEMENT THIS STORM SEWER EASEMENT AND MAINTENANCE AGREEMENT (the "Agreement") is entered into as of the _ day of , 2011 by and between MARKETPLACE HOLDINGS, INC., a Minnesota corporation ("Marketplace Apartments") and MARKETPLACE TOWNHOMES HOLDINGS, LLC, a Minnesota limited liability company ("Marketplace Townhomes"). RECITALS: A. Marketplace Apartments is the fee owner of real property located in Hennepin County, Minnesota, legally described as Lot 1, Block 1, Marketplace and Main (the "Apartment Parcel"). • B. Marketplace Townhomes is the fee owner of real property located in Hennepin County, Minnesota, legally described as Lot 1, Block 2, Marketplace and Main (the "Townhome Parcel"). The Apartment Parcel and the Townhome Parcel shall be referred to individually as a "Parcel' and collectively as the "Parcels." C. There may be constructed on the Apartment Parcel an apartment building and related driveways, sidewalks, parking areas, utilities and other improvements. D. There may be constructed on the Townhome Parcel a townhome development and related driveways, sidewalks, parking areas, utilities and other improvements. E. Marketplace Apartments and Marketplace Townhomes desire to provide for a drainage and utility easement for the construction, installation, and shared beneficial use of a storm water treatment system to be constructed on the Townhome Parcel, as well as access rights thereto for maintenance, repair and replacement purposes. NOW, THEREFORE, in consideration of the foregoing, together with other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Recitals. The foregoing recitals are incorporated herein by this reference, including the definitions set forth therein. 2. Definitions. 0a. "Occupant" or "Occupants" shall mean the employees, invitees, licensees, agents, contractors and tenants of and any other persons authorized by an Owner to enter upon DOCS -0499798-0 any part of such Owner's respective Parcel. b. "Owner" or "Owners" shall mean the fee simple owners of the Apartment Parcel or the Townhome Parcel, as may be applicable, which shall be conclusively determined as being the record fee simple owner as filed in the office of the Hennepin County Recorder or Registrar of Titles, as the case may be. C. The term "Storm Sewer System" shall mean the storm water treatment and/or other equipment, storm water sewer lines, pipes, manholes and related facilities to be constructed and installed on the Townhome Parcel. d. The term "Storm Sewer System Easement Area" shall mean that portion of the Townhome Parcel legally described on Exhibit A hereto and as depicted on Exhibit A-1 attached hereto which is improved or to be improved with the Storm Sewer System. 3. Storm Sewer System Easement Grant. Marketplace Townhomes hereby grants to Marketplace Apartments, for the benefit of the Apartment Parcel, a non-exclusive, perpetual easement (the "Storm Sewer System Easement") over, across, on, under and through the Storm Sewer System Easement Area legally described on Exhibit A hereto for storm water drainage purposes, as well as rights of access to and from the Storm Sewer System Easement Area for purposes of construction, installation, maintenance, repair or replacement of the Storm Sewer System. 4. Documenting Easements. a. To the extent any easement granted, declared and created by this Agreement is not specifically defined or is erroneously defined with respect to its location or width, any Owner may prepare and document such descriptions and all necessary parties agree to execute and deliver such documentation in recordable form upon receipt by each such party of information reasonably acceptable to such party that the descriptions are accurate, complete, conform to and are consistent with the provisions of this Agreement. The party requesting such documentation shall pay the cost of preparing and filing or recording such documentation. b. The requirements and obligations contained in Section 4.a above shall apply to any subdivision and re -platting of any of the Parcels into smaller lots, blocks and/or outlots. Installation, Maintenance and Use. a. The Owner of the Apartment Parcel shall be solely responsible for the performance of all work and obtaining all equipment and materials associated with the construction and installation of the Storm Sewer System in full compliance with this Agreement as well as with all applicable statute, codes, ordinances, rules and regulations, and in a good and workmanlike manner (collectively, the "Installation"), and shall be solely responsible for payment of all costs incurred in connection with such Installation. b. The Owner of the Apartment Parcel shall be solely responsible for the repair, maintenance and replacement of the Storm Sewer System, which shall be kept in a good and serviceable condition and in compliance with applicable laws (collectively, "Maintenance"). Said Maintenance shall include all repairs, cleaning, maintenance and replacements deemed necessary or desirable by said Owner of the Apartment Parcel, and 2 DOCS -0499798-0 • • restoration of the related easement areas to their respective conditions before such work, with respect to repairs, maintenance and replacements. C. The Owner of the Townhome Parcel shall reimburse the Owner of the Apartment Parcel for twenty five percent (25%) of all reasonable costs and expenses actually incurred by the Owner of the Apartment Parcel in connection with the Maintenance of the Storm Sewer System. The Owner of the Townhome Parcel shall reimburse the Owner of the Apartment Parcel within thirty (30) days of receiving an itemized invoice for the costs of such Maintenance. In the event the Owner of the Townhome Parcel shall fail to pay or reimburse the Owner of the Apartment Parcel on or before thirty (30) days after receipt of an invoice, the Owner of the Apartment Parcel may send a default notice (the "Default Notice") to the Owner of the Townhome Parcel and (i) the Owner of the Apartment Parcel shall be entitled to interest on the sums billed at the rate of 18% per annum from the date of billing to the date of payment, plus any costs of collection associated therewith, including but not limited to court costs and reasonable attorney's fees; (ii) the Owner of the Apartment Parcel may place a lien on the Townhome Parcel in accordance with Minnesota law for the amounts owing, including accrued interest and any costs of collection; and (iii) if within the twelve (12) calendar month period prior to giving such Default Notice, the Owner of the Apartment Parcel has given one or more additional Default Notices to the Owner of the Townhome Parcel, then the Owner of the Townhome Parcel shall also pay the Owner of the Apartment Parcel a late charge of $1;000.00. d. If the Owner of the Apartment Parcel fails to perform the Maintenance of the Storm • Sewer System, the Owner of the Townhome Parcel, upon giving the Owner of the Apartment Parcel no less than thirty (30) days prior written notice (except in an emergency situation in which case no prior notice is required), may perform such Maintenance, however in no event shall the Owner of the Townhome Parcel be obligated to perform any such Maintenance, and in such case the Owner of the Apartment Parcel shall reimburse the Owner of the Townhome Parcel for seventy five percent (75%) of said Maintenance costs actually incurred within thirty (30) days of receiving an itemized invoice for the costs of such Maintenance. In the event the Owner of the Apartment Parcel shall fail to pay or reimburse the Owner of the Townhome Parcel on or before thirty (30) days after receipt of an invoice, the Owner of the Townhome Parcel may send a Default Notice to the Owner of the Apartment Parcel and (i) the Owner of the Townhome Parcel shall be entitled to interest on the sums billed at the rate of 18% per annum from the date of billing to the date of payment, plus any costs of collection associated therewith, including but not limited to court costs and reasonable attorney's fees; (ii) the Owner of the Townhome Parcel may place a lien on the Apartment Parcel in accordance with Minnesota law for the amounts owing, including accrued interest and any costs of collection; and (iii) if within the twelve (12) calendar month prior to giving such Default Notice, the Owner of the Townhome Parcel has given one or more other of such Default Notices to the Owner of the Apartment Parcel, then the Owner of the Apartment Parcel shall also pay the Owner of the Townhome Parcel a late charge of $1,000.00. e. Notwithstanding anything to the contrary set forth herein, to the extent that any portion of the Storm Sewer System itself or the Storm Sewer System Easement Area is damaged as • the result of the gross negligence, willful misconduct or omissions of an Owner or Occupant of such Owner, or by construction vehicles of an Owner or Occupant of such 3 DOCS -#3499798-v3 Owner (in each case such Owner is referred to as the "Damaging Owner"), or the • Damaging Owner's tenants, guests, agents, contractors, employees or invitees, the Damaging Owner shall promptly repair such damage at its sole cost and expense to at least as good a condition as immediately prior to such damage or destruction. If any Damaging Owner shall fail to fulfill its obligations set forth in this Section 5.e, the other Owner shall have the right, but not the obligation, to provide written notice of such failure and, in the event that the failure is not cured within thirty (30) days of such notice (or such longer period as is reasonably necessary if such default cannot be cured within such 30 -day period and if the Damaging Owner shall commence such cure within such 30 -day period and shall thereafter diligently pursue such cure), enter onto such portion of the Parcel for the purpose of completing the necessary maintenance or repairs. All reasonable amounts expended by an Owner pursuant to the preceding sentence shall be reimbursed by the Damaging Owner in the manner set forth in Section 5.b and c above. Neither Owner shall cause or permit any mechanics' lien to be filed against any portion of the Parcel of the other Owner on account of labor or materials alleged to have been furnished or delivered to an Owner or Occupant of such Owner. If any lien is filed because of the failure of an Owner or Occupant of such Owner (such Owner is referred to as the "Defaulting Owner") to comply with the terms set forth in this Section 5.f, the Defaulting Owner shall cause any lien placed on any portion of the Parcel not owned by the Defaulting Owner to be discharged within thirty (30) days after the Defaulting Owner becoming aware of the existence of such lien. Upon the failure by the Defaulting Owner to discharge or cause to be discharged such lien in a timely manner, the other Owner shall have the right, but not the obligation, to discharge such lien at the expense of the Defaulting Owner or exercise any other legal or equitable remedy. g. The Storm Sewer System is intended for use and benefit of the Parcels. Notwithstanding the foregoing, however, Marketplace Townhomes and Marketplace Apartments hereby acknowledge and agree as follows: (i) that storm water from a separate parcel located west of the Apartment Parcel and legally described as Lot 2, Block 1, Marketplace and Main (the "Adjoining Parcel"), may discharge onto the Apartment Parcel and thereby indirectly enter into the Storm Sewer System; and (ii) that the owner of such Adjoining Parcel shall have no duty or obligation under this Agreement either with regard to the Maintenance of the Storm Sewer System or payment of any costs therefor. 6. Easements to Run with the Land. The covenants, restrictions and easements created herein shall attach to, bind and run with the Parcels and shall inure to the benefit of and be binding upon Marketplace Apartments and Marketplace Townhomes as well as subsequent owners and transferees of the Parcels and their respective heirs, representatives, successors in title and assigns, but nothing herein contained shall be deemed to (i) be a gift or dedication of any portion of the Parcels to the general public or for any public use or purpose whatsoever or (ii) create any easement or other rights in any Occupant of any Owner or for the benefit of any property or property owner other than the Parcels and the respective Owners thereof; provided, however, nothing contained herein shall prevent any Owner from extending the benefits of such Owner to any Occupant of said Owner. Any person or entity which is or becomes an Owner shall cease being an Owner for purposes of this Agreement when it is no longer the record fee simple owner of any Parcel or portion of a Parcel; provided, however, any liability arising hereunder prior • DOCS -0499798-0 • to an Owner ceasing to be an Owner shall not be terminated but shall continue for such Owner after the Owner ceases to be an Owner until such liability is satisfied. Non -Merger. The ownership of more than one Parcel by any Owner and an affiliate entity of such Owner, shall not create a merger of title, estate, or other merger, including any merger of the dominant and servient estate with respect to the easements granted in this Agreement, and shall therefore not terminate any of the easements, covenants or other terms or provisions of this Agreement as they apply to the Parcels, and all such easements, covenants and other terms and provisions shall remain in force and effect regardless of any of the aforesaid common ownerships now or hereafter existing of any Parcels. 8. Indemnification. Each Owner (the "Indemnifying Owner") shall indemnify and hold harmless the other Owner, their successors, assigns, and mortgagees (collectively, the "Indemnified Owner") from and against all liabilities, damages, claims, costs and other similar expenses which may be incurred by the Indemnified Owner by reason of bodily injury or death of any person or damage to or destruction or loss of any property arising on or from the use by the Indemnifying Owner and their Occupants of the easements granted hereunder, except where, and to the extent that, such liabilities, damages, costs or other similar expenses arise or result, in whole or in part, from the gross negligence or willful misconduct of the Indemnified Owner or their Occupants. 9. Insurance. Each Owner shall maintain in full force and effect a commercial general liability insurance policy written on an "occurrence" basis with a minimum combined • single limit of One Million Dollars ($1,000,000) with coverage for owned and non -owned motor vehicles and contractual liability coverage and with a reasonable deductible amount. All policies of insurance required by the terms of this Agreement shall contain an endorsement or agreement by the insurer that any loss shall be payable in accordance with the terms of such policy notwithstanding any act or negligence of the insured which might otherwise result in forfeiture of said insurance and the further agreement of the insurer waiving all rights of setoff, counterclaim or deductions against the insured. The policies of insurance must each name the other Owner benefiting from the easements created hereunder as additional insureds. Such insurance coverage may be included in blanket insurance policies. Each Owner shall deliver to the other Owner a certificate of such insurance at least thirty (30) days prior to the expiration of such policies. The issuer(s) of such policies shall commit to give all insured Owners thirty (30) days' prior notice before cancellation of the policies or reduction in coverage, except in case of nonpayment of premiums, in which case the insurer(s) shall commit to give the insured Owners ten (10) days' prior notice before cancellation or reduction in coverage. Each Owner may request from time to time (but no more frequently than annually) that the insurance amounts be increased to reflect commercially reasonable amounts in Hennepin County, Minnesota, and each Owner shall promptly secure such increased coverage and provide the other Owner with a certificate of insurance evidencing such coverage. 10. Enforcement. This Agreement may be enforced by any Owner of any Parcel by legal or equitable action (including specific performance) in Hennepin County District Court. In the event an action is commenced, the prevailing party shall be entitled to recover costs and expenses incurred in such action, including reasonable attorneys' fees, from the non- • prevailing party(ies). DOCS -43499798-0 11. Governing Law. All of the terms and provisions of this Agreement shall be governed and • controlled solely by the laws of the State of Minnesota. 12. Notices. Any notices to be given to an Owner shall be deemed effective upon actual receipt if hand delivered, or the next business day after deposit with a national overnight courier company (with shipping charges prepaid), or upon the third (3`a) day after postmarked by U.S. or certified mail, return receipt requested and postage prepaid to the address of such Owner as set forth in the real property records for the Parcel owned by such Owner. Any Owner shall have the right from time to time and at any time upon at least fifteen (15) days' prior written notice thereof in accordance with the provisions hereof to change its respective address and to specify any other address; provided, however, notwithstanding anything herein contained to the contrary, in order for the notice of address change to be effective, it must actually be received. 13. Agreement to Continue Notwithstanding Breach. It is expressly agreed that no breach of this Agreement shall entitle any party, its successors or assigns, to cancel, rescind or otherwise terminate any easements created hereunder. However, such limitations shall not affect, in any manner, any other rights or remedies that such party may have hereunder by reason of such breach. 14. Captions. The captions herein are inserted only for reference and in no way limit or describe the scope of this Agreement or the meaning of any provision hereof. 15. Minimum Interference. The parties hereto and their successors and assigns shall always • exercise use of their respective easements and rights hereunder reasonably and in such manner as to cause the least possible interference under the then circumstances with the use and enjoyment by the other parties or their successors or assigns who have the right to use or are subject to such easements of their respective properties and improvements constructed thereof. 16. Indemnification. Each Owner covenants and agrees to indemnify, defend and hold the other Owner, its successors, assigns, and mortgagees, harmless from and against all claims, costs, expenses and liability (including reasonable attorney's fees and costs) arising from the indemnifying Owner's use of the easements and rights granted herein. 17. Recordation. This Agreement shall be recorded in the office of the Registrar of Titles for Hennepin County, Minnesota. 18. Invalidity. Every term of this Agreement shall be enforceable to the fullest extent permitted by law. If any term of this Agreement is determined to be to any extent unenforceable, that provision will be deemed modified in the most minimal manner so as to make it enforceable, and the remainder of this Agreement shall not be affected. 19. Amendment or Termination. This Agreement may only be amended or terminated by all of the Owners of the Parcels, and the consent of no other party shall be required. Any such document shall be recorded with the office of the County Recorder or Register of Titles for Hennepin County, Minnesota, as the case may be with copies provided to all Owners of the Parcels promptly upon execution and recordation of any such document. • DOCS -0499798-0 20. General. No waiver of any term of this Agreement shall be deemed to be a continuing waiver of that term or a waiver of any other term of this Agreement. Time is of the essence in the performance of each and every provision of this Agreement. Each of the undersigned personally represents and warrants that he is duly authorized to execute this Agreement in the capacity shown. 21. Further Encumbrances. Each Owner shall retain the right to encumber its respective Parcel, including without any limitation any easement areas created hereunder, but any such encumbrances shall be subject to this Agreement. IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date first above stated. • STATE OF MINNESOTA ) ) ss COUNTY OF HENNEPIN ) is MARKETPLACE HOLDINGS, INC. William Beard, President The foregoing instrument was acknowledged before me this day of , 2011, by William Beard, the President of Marketplace Holdings, Inc., a Minnesota corporation on behalf of the corporation. DOCS -43499798-0 Notary Public 9 MARKETPLACE TOWNHOMES HOLDINGS LLC , Chief Manager STATE OF MINNESOTA ) ) ss COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of 12011, by 'the Chief Manager of Marketplace Townhomes Holdings LLC, a Minnesota limited liability company on behalf of the limited liability company.. Notary Public This Instrument Drafted By: Lindquist & Vennum, P.L.L.P. (MCT) • 4200 IDS Center 80 South Eighth Street Minneapolis, MN 55402 612/371-3983 r i U DOCS -0499798-0 • EXHIBIT A-1 • is STORM SEWER SYSTEM EASEMENT Legal Description An easement for drainage and utility purposes over, under and across that part of Lot 1, Block 2, Marketplace and Main, Hennepin County, Minnesota, according to the recorded plat thereof, lying northerly and westerly of the following described line: Beginning at a point on the west line of said Lot 1, distant 44.55 feet south of the Northwest corner of said Lot 1; thence South 89 degrees 29 minutes 55 seconds East 10.00 feet; thence North 00 degrees 30 minutes 05 seconds East, assumed bearing of the west line of said Lot 1, 38.85 feet more or less to the north line of said Lot 1 and there terminating. DOCS -#3499798-v3 EXHIBIT A-1 STORM SEWER SYSTEM EASEMENT AREA EASEMENT SKETCH FOR MARKETPLACE A MAIN N EASEMENT DESCRIPTION: An aerrm fbr dung od LACY puna mgr, under rid er°a gut prt ef Ld 1, 96dr � Ma'MelPlece ane AYiI. hkrllepn t�Iunly, Ynnaote, e000rlltp b tlr recuUed pet Aerwx. V q nrtlury rd wWry of ter lbl*A lambed tis eeBYnnq d e pdrd m the wd ler a erd Lct 1, debet 44.E bd enfi a 7— t w Nolo m ofadd LA 1: thr�.a 8mlh W deg -29 meedw 55 /sande Eeet 10.00 bet thence Not D0 deamn 80 rf*llea 05 es°mde bed. awned berhq aft wed leu a dd La l,36 Url mon a d m s 1M n0M Ins a said LAt 1 r'd eler» IBrmneUlQ 0p a 10 20 40 I hereby certify that this survey was prepared under (SCALE IN FLC7 ) my supervision and that I am a L'cen sed Land Surveyor under the laws of the State of Minnesota. This drawl ng has been chocked and re iewed this day of ay . 2Q—. Date: Licenee No. 24552 by DOCS -43499798-v3 • • 77 S' S � \ti Ln r I� 101: r 5 s L. vc 10.00 \ IIN 3/4 aP16- — uc ue \ \ t � \ P. SAIF-, 5 \ \ t P � ` le alBox 51grr1al Contr I Box 5 —Signal Loop N EASEMENT DESCRIPTION: An aerrm fbr dung od LACY puna mgr, under rid er°a gut prt ef Ld 1, 96dr � Ma'MelPlece ane AYiI. hkrllepn t�Iunly, Ynnaote, e000rlltp b tlr recuUed pet Aerwx. V q nrtlury rd wWry of ter lbl*A lambed tis eeBYnnq d e pdrd m the wd ler a erd Lct 1, debet 44.E bd enfi a 7— t w Nolo m ofadd LA 1: thr�.a 8mlh W deg -29 meedw 55 /sande Eeet 10.00 bet thence Not D0 deamn 80 rf*llea 05 es°mde bed. awned berhq aft wed leu a dd La l,36 Url mon a d m s 1M n0M Ins a said LAt 1 r'd eler» IBrmneUlQ 0p a 10 20 40 I hereby certify that this survey was prepared under (SCALE IN FLC7 ) my supervision and that I am a L'cen sed Land Surveyor under the laws of the State of Minnesota. This drawl ng has been chocked and re iewed this day of ay . 2Q—. Date: Licenee No. 24552 by DOCS -43499798-v3 • • CONSENT AND SUBORDINATION OF HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF HOPKINS The HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF HOPKINS, a (the "HRA") hereby consents to the foregoing Storm Sewer Easement and Maintenance Agreement (the "Easement Agreement") and hereby acknowledges and agrees that Lender's rights and interests in, to and under that certain Mortgage dated April 9, 2007, filed April 24, 2007, as Document No. 4379830, executed by Marketplace Holdings, Inc., as mortgagor, to the HRA, as Mortgagee, in the original principal amount of $900,000.00 (the "Mortgage"), are and hereafter shall be subordinate and junior to the Easement Agreement, the same as if the Easement Agreement had been filed of record prior to the Mortgage. • STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) • HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF HOPKINS Its: The foregoing instrument was acknowledged before me this , the Redevelopment Authority of the City of Hopkins, a DOCS -#3499798-x3 Notary Public day of , 2011, by of the Housing and . on behalf thereof.