060815 EDACITY OF NEW HOPE
EDA MEETING
City Hall, 4401 Xylon Avenue North
June 8, 2015
EDA Meeting will commence upon
adjournment of the City Council Meeting
President Kathi Hernken
Commissioner John Elder
Commissioner Andy Hoffe
Commissioner Eric Lammle
Commissioner Jonathan London
1. Call to order - EDA Meeting of June 8, 2015
2. Roll call
3. Resolution Authorizing the Execution of a First Amendment to Easements with
Covenants and Restrictions Affecting Land
4. Adjournment
EDA
Request for Action
Originating Department
Approved for Agenda
Agenda Section
Community Development
June 8, 2015
EDA
Item No.
By: Jeff Sargent, Director of CD
By: Kirk McDonald, City Manager
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Resolution Authorizing the Execution of a First Amendment to Easements with Covenants and Restrictions
Affecting Land
Requested Action
The Economic Development Authority (EDA) is requested to review the documents attached and approve the resolution
authorizing the execution of a First Amendment to Easements With Covenants and Restrictions Affecting Land (ECR),
between the City of New Hope Economic Development Authority and Hy-Vee, Inc.
Policy/Past Practice
The EDA has conducted approved amendments to Development Agreements as necessary and beneficial to the
redevelopment plans of the city.
Background
The ECR is labeled as "Schedule F" of the Development Agreement between the EDA and Hy-Vee, Inc. The ECR' outlines
specific performance standards and uses throughout the development, which includes Lot 1 (Hy-Vee grocery store), Lot 2
(Hy-Vee convenience store and gas) and Lot 3 (a potential user of the land). North Memorial Clinic has submitted a Site
Plan Approval application that was considered at the June 2 Planning Commission meeting, as a potential user for Lot 3.
The proposed amendment to the ECR outlines maintenance and snow removal responsibilities for Lot 3 (North Memorial)
as they relate to the operations of Hy-Vee. The proposed amendment does not directly involve the City in any capacity,
as it focuses solely on maintenance relationships between Lots 3 and 1. The EDA is charged with approving this
amendment because the ECR is a Schedule to the Development Agreement between the EDA and Hy-Vee, Inc.
It should be noted that this amendment has been reviewed and recommended for approval by Ehlers and the City's
redevelopment attorney, Bob Deike.
Attachments
• Resolution
• Amendment to the ECR
Motion by Second by
To: / w U . S—7
I:1RFA\CQMM DEV\Develo entlQ &R -EDA Hy-Vee ECR Amendment 6-8-15.doc
NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY
RESOLUTION NO. I5 -
RESOLUTION AUTHORIZING THE EXECUTION OF A FIRST AMENDMENT TO
EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND
BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE NEW HOPE
ECONOMIC DEVELOPMENT AUTHORITY (the "Authority") AS FOLLOWS:
WHEREAS, the Authority and the City of New Hope, Minnesota (the "City") have
created Redevelopment Project No. 1 (the "Project") within the City in order to facilitate the
redevelopment of the real property located within the Project, and
WHEREAS, the Authority acquired certain real property (the "Property") located within
the Project; and
WHEREAS, the Authority and Hy -Vee, Inc., (the "Developer") entered into a Purchase
and Development Agreement (the "Development Agreement") pursuant to which the
Developer purchased the Property from the Authority for the purpose of constructing a
commercial development on the Property; and
WHEREAS, pursuant to the Development Agreement, the Developer and the Authority
entered into that certain Easements with Covenants and Restrictions Affecting Land dated
November 6, 2014 (the "ECR") which created certain easements and imposed certain
restrictions on the land that is the subject of the Development Agreement, and
WHEREAS, there has been prepared and presented to the Authority's Board of
Commissioners for its consideration a First Amendment to Easements with Covenants and
Restrictions Affecting Land (the "First ECR Amendment") which modifies the terms of the
ECR.
NOW, THEREFORE, be it hereby resolved by the Board of Commissioner of the
Authority that the appropriate officers of the Authority are hereby authorized to execute the
First Amendment to ECR in substantially the form presented to the Board of Commissioners,
subject to such non -substantive changes as may be approved by the Executive Director and the
Authority's legal counsel, and to take all appropriate and additional actions which are
necessary to implement the terms of the First Amendment to ECR.
Attest:
Adopted this 8th day of June, 2015.
Kirk McDonald, Executive Director
Kathi Hemken, President
Prepared by, return to: Nathan Allen 5820 Westown pjM, West Des Moines 1A 50266 (515)267-2870
FIRST AMENDMENT TO
EASEMENTS WITH COVENANTS AND
RESTRICTIONS AFFECTING LAND
THIS FIRST AMENDMENT TO EASEMENTS WITH COVENANTS AND
RESTRICTIONS AFFECTING LAND (hereinafter, the "Amendment") is made and entered into
this 8th day of June, 2015, by and between HY-VEE, INC., an Iowa corporation (hereinafter
referred to as "Hy -Vee"), and NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY, a
public body politic and corporate (hereinafter referred to as "Authority"); WITNESSETH:
WHEREAS, Hy -Vee is the owner of certain real estate situated in New Hope, Hennepin
County, Minnesota, legally described on Exhibit "A" attached hereto and incorporated herein by
this reference (the "Hy -Vee Tract"); and
WHEREAS, Authority is the owner of certain real estate situated in New Hope,
Hennepin County, Minnesota, legally described on Exhibit "B" attached hereto and incorporated
herein by this reference (the "Authority Tract"); and
WHEREAS, Hy -Vee and Authority have entered into that certain Easements with
Covenants and Restrictions Affecting Land dated November 6, 2014, and filed November 7,
2015, as Document #T05212940 in the office of the Registrar of Titles of Hennepin County,
Minnesota (the "ECR") wherein Hy -Vee and Authority made certain agreements related to the
Hy -Vee Tract; and
WHEREAS, Hy -Vee and Authority desire to amend said ECR as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, it is agreed as follows:
1. Recitals. The recitals are hereby incorporated herein by this reference.
2. Defined Terms. Unless defined herein, capitalized terms herein shall have the
meaning set forth in the ECR.
New Hope MN 1 ECR 1st Amendment v CLEAN 6.3.15
3. Site Plan. The Site Plan set forth in Exhibit "C" of the ECR is hereby deleted
and the Site Plan attached hereto in Exhibit "C" is hereby inserted in lieu thereof.
4. CAM Reimbursement Area.
(a) The parties hereby agree that, subsequent to the initial installation thereof,
the owner(s), from time -to -time, of Lot 1 shall keep and preserve the paved driveway
improvements within the Shopping Center located upon the area visually depicted as
"hatched" on Exhibit "D" attached hereto and incorporated herein by this reference (the
"CAM Reimbursement Area") in good condition and repair, and shall not allow any
hazardous condition to arise or persist therein. The owner of Lot 3 shall be required to
reimburse the owner of Lot 1 for fifty percent (50%) of the owner of Lot 1's actual cost
for the maintenance, repair and replacement (but not the initial installation or snow
removal) of a the paved driveway within the CAM Reimbursement Area. The owner of
Lot 3 shall reimburse the owner of Lot 1 for amounts invoiced or requested in accordance
with the foregoing within fifteen (15) days of receipt of an invoice for the same. Such
reimbursement shall be secured by a lien upon Lot 3 in favor of the owner of Lot 1, but
such lien shall only be perfected upon the date of filing or recording of an instrument
describing the nature of such lien, and upon such recordation or filing shall accrue
interest on the outstanding amount of said lien at the rate of the lower of 10% per year, or
the highest rate allowed by applicable law, until satisfied.
(b) The owner of the Lot 1 shall remove snow from the CAM Reimbursement
Area at commercially reasonable intervals at the owner of the Lot 1's initial cost and
expense; provided, however, the owner of Lot 3 shall reimburse the owner of Lot 1 for a
portion of the snow removal cost. The parties hereby agree that it may be difficult to
identify the actual cost to the owner of the Lot 1 to routinely remove snow from the CAM
Reimbursement Area, so therefore it is hereby agreed that following the completion of
installation of the paved driveway within the CAM Reimbursement Area the owner of
Lot 3 shall pay to the owner of Lot 1 $3,000.00 per year, no later than January 10 of each
year, which shall automatically increase by four percent (4%) per year, such
reimbursement being agreed upon as an approximation of such owner's pro -rata share of
the cost of snow removal for the CAM Reimbursement Area. The reimbursement
obligation set forth herein shall be secured by a lien in favor of Lot 1, but such lien shall
only be perfected upon the date of filing or recording of an instrument describing the
nature of such lien, and upon such recordation or filing shall accrue interest on the
outstanding amount of said lien at the lower of 10% per year, or the highest amount
allowed by applicable law, until satisfied.
(c) The CAM reimbursement obligations set forth in Sections 4(a) and 4(b)
herein shall be suspended and abated in the event, and only for such period(s) of time that
the City of New Hope, Minnesota becomes the owner of Lot 3; provided, however, in the
event of such occurrence if the City of New Hope, Minnesota thereafter conducts
business upon Lot 3 in any meaningful way such that employees, licensees, invitees,
service providers and/or tenants commence ingress and egress to and from Lot 3, the City
of New Hope, Minnesota shall once again be obligated to make the CAM reimbursement
payments described in Sections 4(a) and 4(b) once again.
5. Storm Water Detention Reimbursement. If at any point the surface and storm
water generated upon Lot 3 is detained in the storm water detention facility located upon Lot 1,
then the owner of Lot 3 shall be required to reimburse the owner of Lot 1 for the owner of Lot
3's pro rata share (determined by a fraction, the numerator of which is the square footage of Lot
3, and the denominator of which is the aggregate square footage of Lot 1 and Lot 3) of the
owner of Lot 1's actual cost of the maintenance, inspection, repair and replacement of a the
storm water detention facility upon Lot 1. The owner of Lot 3 shall reimburse the owner of Lot
1 for amounts invoiced or requested in accordance with the foregoing within fifteen (15) days of
receipt of an invoice for the same. Such reimbursement shall be secured by a lien upon Lot 3 in
favor of the owner of Lot 1, but such lien shall only be perfected upon the date of filing or
recording of an instrument describing the nature of such lien, and upon such recordation or
filing shall accrue interest on the outstanding amount of said lien at the rate of the lower of 10%
per year, or the highest rate allowed by applicable law, until satisfied.
6. Site Line Easement. No permanent building improvements other than paved
driveway(s) and/or paved parking lot(s) shall be constructed upon the West 175 feet of Lot 3
without the prior written consent of the owner of Lot 1 in order to preserve sight lines for the
building improvements located on Lot 1 and the business conducted thereupon.
7. Ratification. Except as modified by this Amendment, the ECR is ratified and
confirmed by the parties.
8. Coga arts Facsimile. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken together shall
constitute one and the same agreement. For purposes of executing this Amendment, a facsimile
signature shall be as effective as an actual signature.
[SIGNATURES ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed all on or as of the day and year first above written.
HY-VEE:
HY-VEE, INC.
By:
LM
Jeffrey Markey, Sr. Vice President
Nathan Allen, Assistant Secretary
Date of Execution:
STATE OF IOWA, COUNTY OF POLK, ss
On this -day of , 20-----1betore me, the undersigned, a Notary
Public in and for the state of Iowa, personally appeared Jeffrey Markey and Nathan Allen, to me
personally known, who being by me duly sworn did say that they are the Sr. Vice President and
Assistant Secretary, respectively, of Hy -Vee, Inc., an Iowa corporation, that the instrument to
which this is attached was signed on behalf of said corporation by authority of its Board of
Directors; and that the said Jeffrey Markey and Nathan Allen as such officers acknowledged the
execution of said instrument to be the voluntary act and deed of said corporation, by it and by
them voluntarily executed.
Notary Public in and for the
State of Iowa
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NEW HOPE ECONOMIC
DEVELOPMENT AUTHORITY
By:
Its: President
By:
Its: Executive Director
(print name)
(print name)
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN }
The foregoing instrument was acknowledge before me this _ day of ,
2015, by and , the President and
Executive Director of the New Hope Economic Development Authority, a public body politic
and corporate, on behalf of the Authority.
Notary Public
EXHIBIT "A"
LEGAL DESCRIPTION OF HY-VEE TRACT
Lots 1, 2 and 3, Block 1, NEW HOPE HY-VEE, New Hope, Hennepin County, Minnesota
n
EXHIBIT "B"
LEGAL DESCRIPTION OF AUTHORITY TRACT
Outlot A, NEW HOPE HY-VEE, New Hope, Hennepin County, Minnesota
EXHIBIT 6k09
SITE PLAN
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0►utlot A
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Lot 2 t
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EXHIBIT "D"
LOT 3 MAINTENANCE AREA
*Improvements depicted within Lot 3 are for example purposes only
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® = CAM Reimbursement Area
*Improvements depicted within Lot 3 are for example purposes only
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