CR 07-008 PUD/Development Agreement-Opus Northwest LLC
C\IY OF
-
December 27,2006
HOPKINS
Council Report 07-8
PUDIDEVELOPMENT AGREEMENT - OPUS NORTHWEST L.L.C.
ProDosed Action.
Staff recommends the following motion: Move to approve an amended Planned Unit
Development (PUD)/Development Agreement with Opus Northwest. L.L.C.. to redevelop
the former SUPERV ALU North Annex site.
With this action is it understood that staff is authorized to make minor changes that do not
impact the overall intent of this agreement.
Overview.
Opus Northwest, L.L.C., has purchased the former SUPERV ALU North Annex site. Opus
is proposing to construct an office development. The proposed development will be three 5-
7 story office buildings. The proposed square footage is approximately 740,000 square feet,
anticipated to be constructed in three phases. There is also a small retail area on the east side
of the site.
The site was rezoned with an overlay zoning of Planned Unit Development (PUD) with the
approval of a master plan. The PUD zoning allows flexibility with the underlying zoning of
Business Park. In this agreement the specific parameters on how the site will be developed
are detailed. A site plan approval, replatting, and vacation is before the City Council tonight
for approval.
The development agreement, as presented, was prepared by Jerry Steiner of the City
Attorney's office. As of the date of this report the final details of the agreement are still
being discussed. If there are changes, the final agreement will be distributed Tuesday night.
Prima" Issues to Consider.
. What are the main points of the original and amended agreements?
. Why is the agreement being amended?
SUDDortin!! Documents.
. Amendment to PUD/Development Agreement
· Memo from Jerry Steiner
N ancYi . Anderson, AI CP
Planner
Financial Impact: $_N/A_Budgeted: Y/N
Related Documents (CIP, ERP, etc.):
Notes:
Source:
CR07 -8
Page 2
Primarv Issues to Consider.
What are the main points of the original and amended agreements?
. Allows for the property to be developed in phases
. The project will be developed in compliance with the approved plans
. Developer will construct a Regional Storm Water Facility
. Any improvements will be constructed according to City codes and ordinances
. Any improvements on City-owned land will be transferred to the City of Hopkins
. Developer warrants City improvements for two years
. The developer reimburses the City for out-of-pocket costs for development
. Timing for installation of the light at Jackson Avenue project entrance
. Why is agreement being amended?
The agreement is being amended to reflect the revised plans from Opus. The main change is
the office development will now be 55,000 square feet larger than originally planned. See
the memo from Jerry Steiner for a summary of the amendments.
Alternatives.
1. Approve the development agreement. By approving the PUD agreement, the
redevelopment must be developed as outlined in the agreement.
2. Deny the development agreement. By denying the PUD agreement, Opus will be
allowed to develop the former SUPERV ALU North Annex site with the Business Park
zoning. If the City Council considers this alternative, findings will have to be identified
that support this alternative.
3. Continue for further information. If the City Council indicates that further information is
needed, the item should be continued.
AMENDMENT TO PUDIDEVELOPMENT AGREEMENT.
This Amendment to PUD/Development Agreement (this "Amendment ") is made and
executed this day of , 2007, by Opus Northwest, L.L.C., a limited
liability company under the laws of the State of Delaware ("Developer"), and the City of
Hopkins, a municipal corporation under the laws of Minnesota ("City").
RECITALS
A. On August 14, 2006, Developer and the City entered into a PUD/Development
Agreement (the "PUD Agreement") stating the terms and conditions of the City's approval of
PUD zoning and a Development Plan for the development of certain real property legally
described in Exhibit A attached to the PUD Agreement (the "Real Property"). The PUD
Agreement was filed for record on
, 2006, as Hennepin County Recorder
, 2006, as Hennepin County Registrar
Document No.
of Titles Document No.
B. Paragraph 1 of the PUD Agreement provides that the Real Property is to be
developed in phases and that, at the time Developer applies for and obtains approval of a plat or
site plan for each phase of development of the Real Property, the Developer and the City are to
, and on
enter into an Amendment to the PUD Agreement stating the particular terms, covenants and
..4
.
conditions attached to the City's approval for each phase of development in accordance with
Minnesota Statutes 462.358, Subd. 2a, Section 565 of the Hopkins City Code and consistent with
the terms and conditions stated in the PUD Agreement. Developer has applied to the City for
approval of a plat of the Real Property to be known as Excelsior Crossings (the "Plat"); and for
site plan approval for the development and improvement of three phases of development of the
Real Property. On January 2, 2007, the City Council of the City adopted Resolution No. 07-
, approving the preliminary Plat, and Resolution No. 07- granting site plan
approval for the site plans submitted by Developer for those phases of development. As a
condition of these approvals, the City has required Developer to execute and record this
Amendment and to comply with and perform all of the agreements, terms, covenants, conditions
and restrictions hereof. Developer has agreed to execute this Amendment and record the same as
a servitude upon title to the Real Property.
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated
in and made a part of this Amendment, Developer and the City agree the PUD Agreement is
amended as follows:
1. Defined Terms. All words and phrases defined in the PUD Agreement shall,
when used in this Amendment, have the same meanings stated in the PUD Agreement unless the
context clearly requires a different meaning.
2. Amendment of PUD Zonin!!. The platted lots delineated in the Plat do not
conform with the standards stated in Section 500.55 of the Hopkins City Code regulating the
shape and dimensions of platted lots. After a public hearing held in accordance with the
requirements of Subdivision 2 of Section 565.05 of the Hopkins City Code, the City Council has
approved an amendment to the PUD zoning approval for the Real Property so that the
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dimensions and shape of the platted lots delineated in the Plat shall be permitted within the PUD
District established for the Real Property.
3. Authoritv to Proceed. Developer may proceed with construction of the buildings
and related or ancillary improvements for those phases of development of the Real Property for
which site plan approval was granted by City Council Resolution No. 07- , In
accordance with the terms and conditions of such Resolution, the PUD Agreement and this
Amendment; and otherwise in accordance with the terms and conditions of all applicable
ordinances, codes, statutes and regulations, it being understood at this time Developer is electing
to proceed with development of the buildings designated in the site plan as Buildings A and B
(Phases 1 and 2) only, and Developer is not required to proceed with development of Building C
(Phase 3)..
4. Construction of ImDrovements. Developer acknowledges that, in addition to
any other Public Improvements Developer is required to construct in accordance with the
provisions of the PUD Agreement and this Amendment, Developer shall commence and
complete construction of the First Phase Improvements defined in Paragraph 2 of the PUD
Agreement simultaneously with construction of the Improvements to be constructed by
Developer as part of the first phase of development of the Real Property in accordance with the
approved site plan therefor. The City acknowledges it has determined it is not necessary to
construct the new water main described in Subparagraph 2e of the PUD Agreement. Developer
shall commence construction of the First Phase Improvements simultaneously with
commencement of construction of the first phase of development of the Real Property, and shall
thereafter proceed and continue with all due diligence to complete the First Phase Improvements,
subject to Unavoidable Delays (as defined in the PUD Agreement).
c:\Hopciv\Opus PUD Agmt Amend. 122606.redline - 3 -
.
5. Amendment of Para!!raDh 3 of PUD A!!reement. Paragraph 3 of the PUD
Agreement is deleted and replaced with the following new Paragraph 3:
3. Identification of and ComDliance With Plans. The Real Property shall be developed
and the Improvements constructed and completed in accordance with the following plans which
are herein collectively referred to as the "Plans." The Plans shall not be attached to this PUD
Agreement. If any of the Plans are designated as "Preliminary", such Planes) shall, subject to
City review, comment and approval, be modified, at Developer's expense, after the date of this
PUD Agreement to be suitable for final construction purposes before commencement of any of
the work described or depicted in the Plan in question or issuance of a building permit for the
work depicted in such Plan. At such time as a preliminary Plan has been replaced by a final Plan
approved by the City, all references in this PUD Agreement to such Plan shall refer to the final
Plan. In the event of any conflict or inconsistency between the Plans and the provisions of this
PUD Agreement, the provisions of the Plans shall control. All of the Improvements shall be
constructed in the manner depicted in and required by the Plans, the final construction documents
prepared in accordance with the Plans and this PUD Agreement, by Developer at Developer's
sole expense. The Plans are:
Description of Plan
Plan A
Preliminary Plat of Excelsior Crossings prepared by Sunde
Land Surveying, LLC, dated
Plan B
Preliminary Grade Level and Upper Level Site Plans
prepared by Opus Architects and Engineers, Inc., dated
November 27,2006.
Plan C
Preliminary Signage and Dimensional Site Plan prepared by
Opus Architects and Engineers, Inc., and RLK,
Incorporated, dated November 27, 2006.
Plan D
Preliminary Grading Plan prepared by Opus Architects and
c:\Hopciv\Opus PUD Agmt Amend. 122606.redline - 4 -
Plan E
Plan F
Plan G
Plan H
Plan I
Plan J
Engineers, Inc., and RLK, Incorporated, dated November
27, 2006.
Preliminary Storm Water Pollution Prevention Plan and
Storm Water Pollution Prevention Details prepared by
Opus Architects and Engineers, Inc., and RLK,
Incorporated, dated November 27,2006.
Preliminary Sanitary Sewer/Water Main Plan prepared by
Opus Architects and Engineers, Inc., and RLK,
Incorporated, dated November 27,2006.
Preliminary Storm Sewer Plan prepared by Opus Architects
and Engineers, Inc., and RLK, Incorporated, dated
November 27,2006.
Preliminary Regional Pond Construction Plan prepared by
Opus Architects and Engineers, Inc., and RLK,
Incorporated, dated November 27,2006.
Preliminary General Details and Cross Sections (Sheet Nos.
C 12 - C 14) prepared by Opus Architects and Engineers,
Inc., and RLK, Incorporated, dated November 27, 2006.
Preliminary Overall Landscape Plan, Enlarged Landscape
Plan, Central Area Landscape Plan, Landscape Details and
Landscape Details and Plant List (Sheet Nos. Ll.O - L1.9)
prepared by Opus Architects and Engineers, Inc., dated
November 16,2006.
At the time of submission of a request for site plan approval for any phase
of development of the Real Property for which site plan approval has not been
previously given or has expired, Developer shall submit comprehensive plans
depicting such phase of development, including all Improvements to be
constructed and completed as part of such phase (herein collectively referred to as
the "Future Phase Plans"). The Future Phase Plans shall be prepared and
submitted in accordance with the City's standard practices for approval of plats
and site plans and construction of Public Improvements and will include, but are
c:\Hopciv\Opus PUD Agmt Amend. 122606.redline - 5 -
not limited to, preliminary and final plats, grading, drainage and erosion control
plans, landscaping plans, utility plans, site plans and such other surveys, plans,
drawings and engineering plans as are customarily required by the City in
connection with plat or site plan approval or are appropriate to the development of
each such phase of the Real Property. At the time of approval of each subsequent
phase of development of the Real Property, Developer shall submit the Future
Phase Plans for such phase of development for review and approval by City staff,
and the Amendment to this PUD Agreement to be entered into in connection with
the approval of each such phase of development shall identify the Future Phase
Plans for that phase and incorporate such Future Phase Plans by reference.
6. Intersection ImDrovements. Paragraph 4, C, of the PUD Agreement is deleted
and replaced with the following new Paragraph 4, C:
C. A traffic signal and all related roadway, sidewalk and other Public
Improvements as generally depicted in the Plans (the "Intersection
Improvements") shall be constructed by the City at the primary access point to the
Real Property at the intersection of Jackson Avenue and Hennepin County Road
3. The Intersection Improvements shall (subject to Unavoidable Delays) be
constructed by the City during the 2007 construction season, provided Developer
also begins construction of Building B during the 2007 construction season.
Construction of the Intersection Improvements shall be completed by the City as a
public improvement project in accordance with the City's standard practices and
the requirements of all applicable statutes and ordinances for public improvement
projects. Any and all costs incurred by the City to complete the Intersection
Improvements (collectively "Intersection Costs"), including, but not limited to,
costs for planning, design, engineering, inspection, attorney's and administration
fees, bidding, supervision and construction, shall be paid by Developer as the
same are incurred. Specifically, Developer shall directly reimburse the City for all
Intersection Costs within thirty (30) days after delivery of a request for such
reimbursement accompanied by invoices or other evidence in reasonably
sufficient detail itemizing all Intersection Costs incurred by the City to date and
not previously reimbursed or paid by the Developer. If Developer fails to
reimburse or pay the City any amount due for the Intersection Costs within the
thirty (30) day period provided in this Paragraph, the unpaid amount shall bear
interest at the rate of 1.5% per month until paid. In addition, if Developer fails to
c:\Hopciv\Opus PUD Agmt Amend. 122606.redline - 6 -
payor reimburse the City for Intersection Costs due under this Paragraph C, all
such unpaid amounts shall be assessed against the Real Property (except for the
Three-Acre Open Space Parcel) as a special assessment repayable in installments
at a rate of interest and upon such terms and conditions as are determined by the
City in accordance with the City's standard practices for residential special
assessment projects as in effect at the time of the assessment, except that 100
percent of all such unpaid Intersection Costs due to the City shall be assessed
against the Real Property. Developer agrees to waive and does hereby waive any
and all rights of hearing, objection or appeal to or from such special assessments
to be levied against the Real Property, and agrees the City shall be entitled to
assess the Real Property (except for the Three-Acre Open Space Parcel), for such
unpaid Intersection Costs in accordance with Minnesota Statutes Chapter 429.
7. Amendments to Para!!raDh 12 of PUD A!!reement. Paragraph 12 of the pun
Agreement is amended as follows:
a. The last sentence of Paragraph 12., D., is modified to read as follows:
"Developer shall incorporate in the Plans all mitigative measures as identified in
the updated Alternative Urban Area-Wide Review Mitigation Plan dated April 6, 2006, as
adopted by the City Council on May 16, 2006, and in the December 2006 Update to the May
Updated AUAR for the Excelsior Crossings office development dated December 1, 2006, as
adopted by the City Council on
"
b. Developer agrees that all of the Park Dedication Fees to be paid by
Developer in accordance with the provisions of Paragraph 12., I., are due and payable to the City,
in full, at the time of the City's execution and release of the Plat to Developer, provided
Developer shall be entitled to withhold payment of $25,000.00 of said Park Dedication Fees
pending final determination of the actual costs incurred by Developer in constructing the public
trail around the storm water pond located within the Three-Acre Open Space Parcel. At such
time as the actual costs of constructing such public trail have been determined, as provided in
Paragraph 12., I., Developer shall be entitled to deduct such costs from the $25,000.00 balance of
the Park Dedication Fees and the unpaid balance of such Park Dedication Fees, if any, shall then
c:\Hopciv\Opus PUD Agmt Amend. 122606.redline - 7 -
be promptly paid to the City. In no event shall Developer be entitled to a credit of more than
$25,000.00 for the cost of constructing the public trail around the storm water pond located
within the Three-Acre Open Space Parcel, nor shall the City be responsible for payment of any of
the costs associated with construction of such public trail.
c. The City acknowledges it has approved the form of Declaration submitted
to the City by Developer on December _, 2006.
8. Inte!!ration. This Amendment is incorporated in and made a part of the PUD
Agreement in its entirety. The PUD Agreement shall remain in effect in all of its terms,
covenants and conditions as modified by this Amendment.
IN WITNESS WHEREOF, Developer and the City have executed this Amendment as of
the date and year first above written.
OPUS NORTHWEST, L.L.C.
By
David J. Menke
Its Vice President, Real Estate Development
STATE OF MINNESOTA )
) SSe
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
, 2007, by David 1. Menke, the Vice President of Opus Northwest,
L.L.C., a limited liability company under the laws of the State of Delaware, on behalf of the
limited liability company.
Notary Public
c:\Hopciv\Opus PUD Agmt Amend. 122606.redline - 8 -
CITY OF HOPKINS
By
Eugene J. Maxwell
Its Mayor
By
Richard B. Getschow
Its City Manager
STATE OF MINNESOTA )
) ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
, 2007, by Eugene J. Maxwell, the Mayor, and Richard B. Getschow,
the City Manager, of The City of Hopkins, a municipal corporation, under the laws of the State of
Minnesota, on behalf of the municipal corporation.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Steiner & Curtiss, P .A.
400 Wells Fargo Bank Building
1011 First Street South
Hopkins, Minnesota 55343
c:\Hopciv\Opus PUD Agmt Amend. 122606.redline - 9 -
STEINER & CURTISS, P.A.
ATTORNEYS AT LAW
400 WELLS FARGO BANK BUILDING
1011 FIRST STREET SOUTH
HOPKINS, MN 55343
JEREMY S. STEINER*
WYNN CURTISS
JASON T. HUTCmSON
*Real Property Law Specialist, certified
by the Minnesota State Bar Association
Writer's Direct Dial No. 952-938-6219
(952) 938-7635
FAX (952) 938-7670
MEMORANDUM
TO:
Honorable Mayor and
City Council Members
City of Hopkins
FROM:
Jeremy S. Steiner, Esq.
DATE:
December 29, 2006
RE:
Amendment to PUD/Development Agreement
for Excelsior Crossings
The purpose of this Memorandum is to summarize the terms and conditions of the proposed
Amendment To PUD/Development Agreement ("Amendment") between the City of Hopkins and Opus
Northwest, LLC ("Opus") for the Excelsior Crossings development.
On August 14, 2006, Opus and the City entered into the PUD/Development Agreement ("PUD
Agreement") to document the terms and conditions of the City's approval of the PUD zoning for the
Excelsior Crossings development. Paragraph 1 of the PUD Agreement states that the development is to
occur in phases, that Opus may not proceed with construction of buildings and other improvements for any
phase of the development until site plan and plat approval has been obtained from the City and that, at the
time of plat or site plan approval for each phase of development, Opus and the City are to enter into an
Amendment to the PUD Agreement "stating the particular terms, covenants and conditions attached to the
City's approval for each phase of development." Opus has now applied for approval of the plat of
Excelsior Crossings and the site plans for the fust three phases of development. The Amendment
documents the following specific terms and conditions attached to the City's approval of the plat and site
plans:
1. Non-Conforming Lots. The proposed lots and outlots in the plat of Excelsior Crossings
are irregular in shape and do not conform with the standards stated in Section 500.55 of the
c:\Hopkins.Opus\Mayor Council Memo re PUD Amend. 122906 ~ 1 -
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Hopkins City Code as to the shape and dimensions of platted lots. The City Council is
authorized to permit these non-conforming lots within the pun District for Excelsior
Crossings by means of an Amendment to the PUD zoning, as opposed to considering the
granting of a variance from the standards of the City's subdivision ordinance. The PUD
ordinance gives the City Council the flexibility to deviate from standards such as those in
the subdivision ordinance through PUD zoning, but requires that the City Council conduct
a public hearing before approving these non-conforming lots as permitted within the PUD
District for Excelsior Crossings. Paragraph 2 of the Amendment simply documents the
Council's approval of the non-confirming lots in the Excelsior Crossings plat as permitted
within the PUD zoning district.
2. Authority to Proceed with Construction. Paragraph 3 of the Amendment documents the
Council's approval of the site plans for the first three phases of development and authorizes
Opus to proceed with construction, subject to all applicable ordinances, codes, statutes and
regulations. Paragraph 3 also provides that Opus is not required to proceed with
development of the third building (Building C) at this time.
3. Public Imorovement Construction. Paragraph 4 documents the requirement that Opus
construct certain public improvements at the same time as it completes construction of the
first Building (Building A). The specific public improvements to be completed by Opus
at this time are:
a. All of the ponds and storm water management improvements that are to be
constructed within the entire Excelsior Crossings development as shown on the
approved plans.
b. The regional storm water retention and treatment facility to be constructed on the
approximately three-acre parcel located north of Second Street NE, which is to be
transferred to the City following completion of those improvements.
c. The public trail to be constructed around the stonn water pond on the
approximately three-acre parcel located north of Second Street NE.
4. Identification of Plans. Paragraph 5 of the Amendment modifies Paragraph 3 of the pun
Agreement to identify all of the plans that have now been submitted by Opus for City
approval of the first three phases of the development. Because this is a phased
development, and because Opus had not committed to a schedule for commencement of
development when the PUD Agreement was signed in August, it is necessary to modify
Paragraph 3 of the PUD Agreement to describe the approved plans for the frrst three phases
of development.
5. Intersection Construction. Paragraph 6 of the Amendment modifies Paragraph 4, C, of
the PUD Agreement relating to construction of the intersection improvements at the main
entrance to the Excelsior Crossings development located at the intersection of Jackson
Avenue and 81. Louis Street. The pun Agreement provides that the City is to construct
c:\Hopkins.Opus\Mayor Council Memo re PUD Amend. 122906 . 2 -
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these intersection improvements as a public improvement project and that the cost of
completing the intersection improvements will be levied against all of the property in the
development and repaid as a special assessment. Construction of these intersection
improvements was to occur no later than when Phase III of the development is built or the
required warrants are met for the intersection, or earlier, if Opus elected to require the City
to construct the intersection improvements at an earlier date. City staff is in the process of
negotiating a modification to paragraph 4, C, of the PUD Agreement that will provide the
City will construct the intersection improvements at an earlier date, based upon anticipated
traffic levels from either Phase I or Phase II of the development. The specifics of this
change to Paragraph 4, C, have not yet been finalized. The Amendment also modifies
Paragraph 4, C, to state that Opus will directly reimburse the City for all of the costs
associated with construction of the intersection improvements at the time the City incurs
those costs instead of using the special assessment process to recover the costs.
6. Other Amendments. Paragraph 7 of the Amendment documents that the Plans for the
Project will incorporate all of the "mitigative measures" identified in the original ADAR
dated April 6, 2006, and any additional "mitigative measures" identified in the updated
AUAR dated December 1,2006. Paragraph 7 also provides that Opus will pay the park
dedication fees totaling $330,900.00, minus a credit not to exceed $25,000.00 for trail
construction, when the City executes and releases the plat of Excelsior Crossings to Opus.
Finally, Paragraph 7 documents that the City has approved the private Declaration of
Reciprocal Easements, Covenants, Conditions and Restrictions previously submitted to the
City by Opus for approval.
.
JSS
c:\Hopkins.Opus\Mayor Council Memo re PUD Amend. 122906 - 3 -
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