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CR 07-023 Amended & Restated PUD/Develop Agreement-Marketplace & MainG~TY OF • February 27, 2007 N O P K I N S Council Report 2007-23 AMENDED AND RESTATED PUD/DEVELOPMENT AGREEMENT - MARKF,TPLACE & MAIN Proposed Action Staff recommends adoption of the following motion: Move to approve the amended and restated PUD/Development Agreement between the City of Hopkins and Marketplace Holdin s With this action it is understood that staff is authorized to make minor changes to the agreement that do not impact the overall intent. Overview In June of 2004 the City of Hopkins rezoned the former Hopkins Honda Body Shop and used-car sales lot to a Planned Unit Development (PUD) overlay zoning to facilitate the redevelopment of this site into amixed-use (residential/commercial) development. At that time, a PUD agreement was executed with Luther Companies. The PUD agreement was revised in the summer of 2006 to reflect The Cornerstone Group as owners. The PUD agreement with The Cornerstone Group was approved by the Council, but never executed. Now the Cornerstone Group is selling the site to Marketplace Holdings, Inc., (The Beard Group) and the agreement needs to be amended. Primary Issues to consider What are the changes from the previous agreement? The majority of the changes are additions to the agreement that were left blank, as they referred to plans that had yet to be developed. The most significant change to language is in the demolition and construction start dates and two phases for the project. The Beard Group has asked that the date for start of construction of the first phase be no later than August 31, 2008. They hope to start sooner if they get the presale requirement. The second phase of the development must be started by Apri130, 2009. Supporting Information Amended and Restated PUD/Development Agreement Nancy Anderson Planner Financial Impact: $ 0 Budgeted: Y/N Source: Related Documents (CIP, ERP, etc.): Notes: • DRAFT DATED 2/26/2007 Steiner & Curtiss, P.A. AMENDED AND RESTATED PUD/DEVELOPMENT AGREEMENT This Amended and Restated PUD/Development Agreement (this "Amended PUD Agreement") is made and executed this day of 2007, by Marketplace Holdings, Inc., a Minnesota corporation, ("Developer"), and the City of Hopkins, a municipal corporation under the laws of Minnesota ("City"). RECITALS A. Developer is the fee owner of certain real property (the "Real Property") located in the City of Hopkins, Hennepin County, State of Minnesota, legally described in Exhibit A attached hereto and incorporate herein by reference. B. On June 1, 2004, the City Council of the City adopted Ordinance No. 04-923 approving overlay PUD zoning for the Real Property so that, in addition to its underlying zoning classification of B-3, the Real Property also has an overlay zoning classification of planned unit development. As a condition of that approval, the City required the previous owners of the Property, The Luther Company Limited Partnership and Hansord Agency, Inc., to enter into a PUD/Development Agreement with the City, dated August 26, 2004, and filed for record August 30, 2004, as Hennepin County Registrar of Titles Document No. 4010087 (the "PUD Agreement"). The PUD Agreement was recorded as a servitude upon the title to the Real Property. C. Paragraph 2 of the PUD Agreement states that after the "Discontinuance Date" (as defined in Paragraph 12.B. of the PUD Agreement), the Real Property is to be redeveloped as a mixed use development in conformity with certain permitted uses and design standards described in Exhibit C to the PUD Agreement and that, at that time, the City would enter into an Amendment to the PUD Agreement stating the terms and conditions for the redevelopment of the Real Property. This Amended PUD Agreement is the "Redevelopment Agreement" defined and identified in Paragraph 2 of the PUD Agreement. This Amended PUD Agreement supersedes and replaces the PUD Agreement. At such time as this Amended PUD Agreement has been executed by all parties and recorded, this Amended PUD Agreement shall replace the PUD Agreement, and the PUD Agreement shall no longer be of any force or effect. D. The Developer has applied to the City for approval of a plat of the Real Property to be known as "Marketplace & Main" (hereinafter referred to as the "Plat"). On 2007, the City Council of the City adopted Resolution 07- approving the Plat. As a condition of that approval, the City has required Developer to execute and record this Amended PUD Agreement and to comply with and perform all of the agreements, terms, covenants, conditions and restrictions hereof. Developer has agreed: i) to accept such agreements, terms, covenants and restrictions of this Amended PUD Agreement, ii) execute this Amended PUD Agreement, and iii) to record this Amended PUD Agreement as a servitude upon the title to the Real Property. E. Minn. Stat. 462.358, Subdivision 2a, and Section 565.02 of the Hopkins City c:Hopcivil~lVlainstreetPhase2.PUD.022607.Clean - 2 - Code provide the City may require the Developer to enter into a development contract stating the terms and conditions for the City's approval of the PUD overlay zoning and the Plat. The City has required Developer to enter into this Amended PUD Agreement under the authority provided in said Statute and Ordinance. NOW, THEREFORE, in consideration of the foregoing Recitals and in compliance with the provisions of the PUD Agreement, Developer agrees to the terms and conditions stated in this Amended PUD Agreement and declares that all of the Real Property shall be held, transferred, leased, occupied, used, improved and developed subject to the following agreements, terms, covenants, conditions and restrictions: 1. Recitals Incorporated. The foregoing Recital Paragraphs A through E, are incorporated in and made a part of this Amended PUD Agreement in their entirety. 2. Discontinuance of Prior Use of Real Property. Phased Development. Development Improvements. The intent of the PUD overlay zoning is that the past use of the Real Property as an auto body repair and used car sales facility shall be discontinued no later than the Discontinuance Date (as defined in Paragraph 12.B., below) and that after the Discontinuance Date the Real Property shall be redeveloped as a mixed use development in conformity with this Amended PUD Agreement and the permitted uses and design standards described in Exhibit B hereto. It is intended that the Real Property shall be developed in phases. Construction of buildings and related or ancillary improvements for any phase of development may not proceed or occur until Developer has obtained site plan approval from the City for such phase and, if required, a plat for the phase of development in question, all in accordance with the requirements c:HopciviluVlamstreetPhase2.PUD.022607.Clean - 3 - of the Hopkins City Code and Minnesota Statutes. Developer may proceed with development and construction of the buildings and related or ancillary improvements for the initial phase of development of the Real Property for which site plan approval was granted by City Council Resolution No. 06-15, in accordance with the terms and conditions of such Resolution, this Amended PUD Agreement; and otherwise in accordance with the terms and conditions of all applicable ordinances, codes, statutes and regulations. At the time of site plan approval and, if required, plat approval for each subsequent phase of development of the Real Property, the Developer and the City shall enter into an amendment to this Amended PUD Agreement stating the particular terms, covenants and conditions attached to the City's approval for each subsequent phase of development in accordance with Minnesota Statutes 462.358, Subd. 2(a), and Section 565 of the Hopkins City Code, and otherwise consistent with the terms and conditions stated in this Amended PUD Agreement. The City's approval for the development of the Real Property shall be subject to such terms and conditions of approval, including construction of any City Improvements (as defined herein) as may be established by the City Council consistent with the terms and conditions of this Amended PUD Agreement. Developer agrees it shall commence construction of the final phase of development of the Real Property no later than Apri130, 2009. Developer shall construct, install, complete and pay for the work, labor, materials, facilities and improvements required for the development of the Real Property ,including all of the facilities and improvements described in Plans identified in Paragraph 3 of this Amended PUD Agreement and the facilities and improvements described in Paragraph 4 of this Amended PUD Agreement, all of which work, labor, materials, facilities and improvements are herein c:Hopcivil~IvlainsVeetPhase2.PUD.022607.Clean - 4 - collectively referred to as the . "Improvements." The Improvements shall be completed in accordance with: i) the Plans defined and identified in Paragraph 3 of this Amended PUD Agreement, as the same may be amended from time to time in accordance with its terms; and 111) all of the other terms of this Amended PUD Agreement. All streets, alleys, sidewalks, trails, landscaping, sanitary sewer, City water, storm sewer, storm drainage and other public utilities or public improvements constituting part of the Improvements to be constructed as provided in this Amended PUD Agreement which are located within any public easements or rights-of--way are referred to in this Agreement as the "City Improvements." Developer's obligation to construct, install and pay for the Improvements shall include completion of and payment for any and all labor, skill, material, equipment and other work required during the course of construction to complete., the Improvements in compliance with the requirements of this Amended PUD Agreement. 3. Identification of and Compliance With Plans. The Real Property and the Plat 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 Amended PUD Agreement. If any of the Plans are designated as "Preliminary", such Plan(s) shall, subject to City review, comment and approval, be modified, at Developer's expense, after the date of this Amended 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 Amended PUD Agreement to such Plan shall refer to the final Plan. In the event of any conflict c:Hopcivil~ivlainstreetPhase2.PUD.022607.Clean - 5 - or inconsistency between the Plans and the provisions of this Amended PUD Agreement, the provisions of the Plans shall control. The Plans are: Description of Plan Plan A Preliminary Plat of Marketplace & Main prepared by RLK, Incorporated, as approved by the City Council Plan B Preliminary Grading, Drainage and Erosion Control Plan prepared by RLK, Incorporated dated January 27, 2006. Plan C Preliminary Removal Plan prepared by RLK, Incorporated dated January 27, 2006. Plan D Preliminary Landscape Plan and Preliminary Landscape Details prepared by RLK, Incorporated and dated January 26, 2006, and January 27, 2006. Plan E Preliminary Utility Plan prepared by RLK, Incorporated dated January 27, 2006. Plan F Preliminary Site Details prepared by RLK, Incorporated dated January 27, 2006. Plan G Preliminary Storm Water Pollution Prevention Plan prepared by RLK, Incorporated dated January 27, 2006. Plan H Preliminary Site Plan prepared by RLK, Incorporated dated January 27, 2006. 4. Additional Imurovements. In addition to or in connection with completion of the facilities and Improvements depicted in the Plans, Developer shall construct, install and pay for the following facilities and Improvements: A. All of the sanitary sewer, storm sewer, water, natural gas, electric, telephone, cable television and other utility improvements, streets and driveways and other facilities and Improvements located within the boundaries of the Real Property shall be constructed in the c:HopcivilWlainstreetPhase2.PUD.022607.Clean •- 6 - • manner depicted in and required by the Plans, the final construction documents prepared in accordance with the Plans, and this Amended PUD Agreement, by Developer, at Developer's sole expense. B. Seventh Avenue North between Mainstreet and the Hennepin County Regional Railroad Authority right of way and the sidewalk and streetscape improvements north of Mainstreet and south of the Real Property shall be reconstructed or repaired in accordance with the Plans and applicable City standards, codes, regulations and ordinances. C. All storm drainage and other related drainage facilities depicted in the Plans shall also be constructed by Developer, at Developer's sole expense, in accordance with the terms and conditions of this Amended PUD Agreement and any additional terms and conditions required by the Minnehaha Creek Watershed District. D. The underground Qwest telecommunications lines located in the vacated alley west of Seventh Avenue North shall be relocated at Developer's expense in accordance with the requirements of the Plans, this Amended PUD Agreement and conditions required by Qwest. If required by Qwest, Developer shall grant Qwest an underground easement for maintenance of the relocated underground telecommunications lines. E. The overhead electric lines located above the vacated alley or elsewhere on the Real Property will be relocated underground at Developer's expense in accordance with the Plans, the provisions of this Amended PUD Agreement and any conditions required by Xcel Energy. Developer shall provide all necessary easements for relocation of electric lines, either by dedication in the Plat or by granting additional easements to Xcel Energy. F. The Developer shall construct the "stormceptor" and "infiltration basin" and other c:Hopcivil~lVlainstreetPhase2.PUD.022607.C1ean - 7 - storm water management improvements (collectively "Storm Water Management Improvements") on the Real Property in accordance with the Plans and with City standards, codes, regulations and ordinances, including Section 546 of the Hopkins Code of Ordinances. 5. Construction Standards and Procedures. The Improvements shall be constructed and installed in accordance with the final Plans ,City standards, codes, regulations and ordinances, including, but not limited to, the Engineering Guidelines adopted by the City's Department of Public Works, and with the requirements of Minnesota Rules Chapter 7560 (which rules apply to and regulate underground utility service laterals). All Plans and specifications for the Improvements shall be prepared and certified by a registered professional engineer or engineers, and shall be furnished to the City, reviewed by the City Engineer and modified to incorporate any comments of the City Engineer or his consultant prior to final approval thereof and issuance of a Permit for the work depicted in such plans. In connection with the construction of the Improvements, the Developer shall restore all City streets, utilities and other public facilities and property disturbed or damaged as a result of Developer's construction activities to substantially the same condition as existed prior to commencement of construction. Within sixty (60) days after the completion of the City Improvements, Developer shall supply the City with the following relating to the City Improvements: (a) a complete set of reproducible mylar as-built plans and specifications, (b) two complete sets of utility tie sheets, (c) location stationing and swing ties of all utility stubs, (d) benchmark network and (e) digital as- builts conforming with the following requirements: (i) Digital Files in Microstation DGN Format in NAD 83 Hennepin County Ground c:Hopcivil~lvlainstreetPhase2.PUD.022607.Clean - 8 - Coordinates. (ii) All Cell Libraries and Line Styles shall be included. (iii) Level structure shall conform to current Hopkins Level Structure. 6. License. The Developer hereby grants the City, its agents, employees and inspectors a license to enter the Real Property, as necessary, to perform all work and inspections deemed appropriate by the City in conjunction with construction of the Improvements. Such license shall terminate upon completion of the Improvements, as evidenced by final inspection and approval thereof by the City Engineer and building official. 7. Improvements to be Transferred to City. Upon completion of construction of the City Improvements, and final acceptance and approval of the City Improvements by the City, all of the City Improvements including those located within or upon any public easements, including drainage and utility easements, if any, to be dedicated to the City, public streets or other rights-of--way or other City-owned land shall become the sole property of the City. The Developer shall transfer the City Improvements to the City free and clear of all liens and encumbrances. At such time as the City Improvements have been completed, representatives of Developer's contractors, and a representative of Developer's Engineer will make a final inspection of the City Improvements with the City Engineer. The City Engineer shall be entitled to review and approve any punch list items or lists of incomplete or defective work comprising the City Improvements to be submitted by Developer or its representatives to the contractor(s) responsible for completion of the City Improvements to assure that the same are completed in accordance with the requirements of this Amended PUD Agreement. As a condition of its c:Hopcivil~IVlainstreetPhase2.PUD.022607.Clean - 9 - acceptance of title to any of the City Improvements, the City shall receive from Developer written evidence, in form and content reasonably acceptable to the City, that Developer has caused all incomplete or defective work to be completed or corrected and has made payment in full for all work comprising the City Improvements. Before the City accepts title to the City Improvements, the City Engineer shall be reasonably satisfied that all of the City Improvements have been completed in accordance with the Plans and the requirements of this Amended PUD Agreement and that Developer has made payment in full for all of the work comprising the City Improvements. Final acceptance of the City Improvements by the City shall be evidenced by a resolution duly adopted by the City Council of the City, which approval shall be granted if Developer is in full compliance with all of the terms, conditions, agreements, and requirements of this Amended PUD Agreement related to the City Improvements. 8. Warran The Developer warrants that all work comprising the City Improvements shall be free from defective materials or faulty workmanship for a period of two (2) years after acceptance of the City Improvements by the City as evidenced by a resolution duly adopted by the City Council, except that trees and landscaping plantings shall be warranted for twelve (12) months from the date of planting. All work and materials comprising the City Improvements which are found to be defective within two years after acceptance thereof by the City (or twelve (12) months from the date of planting in the case of landscaping improvements) shall be repaired or replaced by Developer at Developer's sole expense. 9. Reimbursement of Costs to City. Developer acknowledges the City may retain consultants to provide services related to the redevelopment of the Real Property and this Amended PUD Agreement, and Developer shall reimburse the City for all out-of-pocket costs c:HopciviluVlainstreetPhase2.PUD.022607.Clean - 10 - incurred by the City in connection with the preparation, negotiation and execution of this Amended PUD Agreement, and the administration, performance and enforcement of this Amended PUD Agreement. Such out-of-pocket costs to be reimbursed by Developer shall include, but are not limited to, all fees due to consultants retained by City, whether incurred before or after the date of this Amended PUD Agreement, including, without limitation, traffic, development, fiscal, environmental, geotechnical, surveying, engineering, and legal services of the City Attorney, which are to be reimbursed at the rate of $225.00 per hour. The selection of consultants and the extent of services to be provided by them shall be in the sole discretion of the City. The fees and hourly rates charged by the consultants selected by the City shall be in commercially reasonable amounts. The City shall provide Developer a list of the standard fees or hourly rates charged by all consultants to be retained by the City within thirty (30) days of the • date of this Agreement. The City shall submit invoices to Developer for reimbursable out-of- pocket costs incurred by the City on a monthly basis (provided failure by the City to submit such invoices on a monthly basis shall not excuse Developer from its obligation to reimburse the City for out-of-pocket costs); and such reimbursements from Developer shall be due and payable within thirty (30) business days of delivery of a copy of the invoice or statement therefor to the Developer, and shall bear interest at the rate of one percent (1 %) per month, if not paid by Developer within thirty (30) days of the date the applicable invoice or statement has been delivered to Developer. If Developer fails to pay any reimbursement due to the City within the time period required by this Paragraph 9, the City shall be entitled to withhold and not issue any building permits or other permits or certificates of occupancy required for the construction or occupancy of the Improvements to be constructed by Developer on the Real Property until such c:Hopcivil~NlainstreetPhase2.PUD.022607 Clean - 11 - time as Developer has paid all such reimbursements in full. 10. Other Governmental Apurovals. The Developer shall obtain, all required approvals and/or permits from the Minnesota Pollution Control Agency, Hennepin County, the Minnehaha Creek Watershed District, Minnesota Department of Health, Metropolitan Council Environmental Services Division and any other governmental authorities whose approval is required for the construction of the Improvements and the redevelopment of the Real Property. The Developer shall maintain all such required permits and comply therewith at all times. 11. Time of Performance. Developer shall commence construction of the Improvements for the first phase of development of the Real Property no later than August 31, 2008, and shall substantially complete construction of the Improvements within 24 months of commencement of construction. However, all work to be performed by Developer within the right-of--way of Seventh Avenue South shall be substantially completed within 180 days of the date of commencement of construction of the Improvements for the first phase of development. Developer shall commence construction of the final phase of development of the Real Property no later than Apri130, 2009. 12. Additional Conditions and PUD Zoning Requirements. Developer agrees the Real Property shall be redeveloped, held, transferred, occupied, used and improved subject to and in compliance with the following PUD zoning requirements and additional terms and conditions: A. The intent of the PUD overlay zoning, the permitted uses, prohibited uses and design standards within the PUD overlay zone shall be as described in the Development Design Standards attached to this Amended PUD Agreement as Exhibit B ("Development Design Standards"). The Real Property shall be redeveloped and improved in accordance with the c:Hopcivil~lVlainstreetPhase2 PUD.022607.CIean - 12 - Development Design Standards. All future uses of the Real Property shall be in accordance and conformity with the Development Design Standards and the underlying B-3 zoning for the Real Property. B. Developer and the City acknowledge, but do not warrant or represent, that the "Discontinuance Date" identified and defined in Paragraph 12.B. of the PUD Agreement was September 15, 2005 (the "Discontinuance Date"). Developer acknowledges and agrees the use of the Real Property for its pre-existing use as an automobile body shop, repair and used car sales facility (the "Pre-existing Use") is now prohibited. Developer shall secure and maintain all structures and improvements located on the Real Property, keep all such structures, improvements and the Real Property in good condition and repair and shall not "board up" or otherwise conceal the window and door openings on the exterior of such structures and improvements unless required for public safety reasons or to prevent unauthorized entry. In the event Developer or its successor in title to the Real Property has not commenced demolition and removal of all existing structures and improvements from the Real Property by August 31, 2008, Developer agrees the City shall be entitled to require Developer or its successor in title to the Real Property to commence and complete the demolition and removal of all structures and improvements from the Real Property, remediation of any contamination or other adverse environmental conditions and grading and restoration of the Real Property upon sixty (60) days' written notice to Developer or its successor in title in the manner provided in Paragraph 16 of this Amended PUD Agreement. Developer agrees to complete the demolition and removal of all structures and improvements from the Real Property and grading and restoration work within ninety (90) days of commencement of such work, subject to reasonable delays due to removal or c:Hopcivil~IvlainstreetPhase2.PUD.022607.C1ean - 13 - remediation of unforeseen environmental contaminants, hazardous waste or hazardous substances; correction of soil conditions; flood, storms and other natural catastrophes and acts of God; terrorist acts, epidemic, war, riot, sabotage, civic disturbance or disobedience, act of public enemy; fire, accident, wreck or explosion; strike, lockout, labor dispute; delays in transportation or inability to obtain necessary labor, materials, components, equipment, services, energy or utilities through usual and regular sources at usual and regular prices; any delays in performance of work to be performed by utility providers or their affiliates that do not result from actions of Developer; and any order or injunction of a court or governmental agency. Any notice to Developer's successors in title to the Real Property shall be deemed properly given and delivered if forwarded to the address of the record owner of the Real Property at the time notice is given as stated in the records of the Hennepin County Property Tax Department and shall be deemed to be duly given when delivered in the manner stated in Paragraph 16. All such demolition, removal, remediation, grading and restoration shall be completed in compliance with the Plans and all applicable statutes, rules and ordinances at the sole cost of Developer or its successor in title to the Real Property, provided that no provision of this Amended PUD Agreement shall be interpreted to waive any rights Developer may have to receive tax increment financing assistance to reimburse Developer for costs incurred by Developer as described in this Amended PUD Agreement.. The obligation to complete such demolition, removal, remediation, grading and restoration shall be the personal obligation of the fee owner of the Real Property on the date of delivery of the City's notice requiring commencement and completion of such work. If Developer or its successor in interest fails to commence or complete such demolition, removal, remediation, grading and restoration work within the time periods specified in this Amended c:HopciviluVlainstreetPhase2.PUD.022607.CIean - 14 - PUD Agreement, and after delivery of notice from the City, the City and its agents shall be entitled to enter upon the Real Property upon thirty (30) days' written notice to Developer or its successor in title and complete such work at the expense of Developer or Developer's successor in title. However, no provision of this Amended PUD Agreement shall be interpreted to require the City to undertake to complete such work. All costs incurred by the City in completing any demolition, removal, remediation, grading or restoration work shall be assessable against the Real Property as a special assessment pursuant to Minnesota Statutes Chapter 429, and Developer waives any objection to such special assessment on behalf of itself and its successors in title to the Real Property. C. Developer shall grant all necessary utility easements for relocation of telecommunications and electric lines as described in Paragraphs 4.D. and E, above, either through dedication in the Plat or by granting easements to Qwest or Xcel Energy. Developer shall grant the City a permanent easement for public trail and sidewalk purposes over the most easterly 40 feet of the Real Property. All surveying services and costs associated with providing proof of title to the area affected by ~ this easement will be paid by Developer. E. The Developer will execute the form of Declaration in favor of the City and/or the Minnehaha Creek Watershed District attached hereto as Exhibit C ("Declaration") related to the construction and maintenance of the Storm Water Management Improvements. The Declaration will be executed by the Developer, consented to by any lien holders, recorded as an encumbrance against the title to the Real Property and require Developer and its successors and assigns to maintain the Storm Water Management Improvements in perpetuity. The Developer will also c:Hopcivi1~1V1ainstreetPhase2.PUD.022607.Clean - 15 - comply with all requirements and conditions of the Minnehaha Creek Watershed District related to the construction and maintenance of the Storm Water Management Improvements. F. From and after the Discontinuance Date no part of the Real Property shall be used for any of the prohibited uses described in Exhibit B attached hereto. G. Developer agrees a representative of the City shall be entitled, upon two days advance notice and during normal business hours, to enter the new buildings to be constructed on the Real Property by Developer after their completion for the purpose of testing radio signal reception strength within each such building. Such tests shall be conducted in such a manner so as not to unreasonably interfere with the operation or use of such buildings. At such time as Developer does not control the Owners Association for the condominium to be constructed on the Real Property by Developer, notices under this paragraph shall be given to the Owners Association at the address stated in the records of the Hennepin County Property Tax Department; and the provisions of this paragraph shall be binding upon such Owners Association. If the City determines radio signal reception strength within any of the buildings to be constructed by Developer on the Real Property is insufficient for reception of radio signals by police, fire and other emergency personnel of the City, Developer shall install a signal amplifier within each building in which radio signal strength is determined to be insufficient, at Developer's sole cost. The type of signal amplifier to be installed by Developer and its location within the building shall be approved by the City, and Developer shall install the signal amplifier within sixty (60) days of receiving notice from the City requiring such installation. H. As a condition of execution and release of the Plat by the City, Developer shall pay the City a park dedication fee in an amount determined in accordance with the provisions of c:Hopcivil~IvlainstreetPhase2.PUD.022607.Clean - 16 - Section 500.75 of the Hopkins City Code. The amount of the park dedication fee shall be the applicable amount in effect on the date of Developer's satisfaction of all conditions imposed by the City on its approval of the Plat. I. The Developer shall provide evidence of title to the Real Property and any property over which public easements are to be granted to the City. Such evidence of title shall be in the form of a current commitment for owners title insurance (ALTA form) covering all of the Real Property in which the City is identified as the "Proposed Insured." The title insurance commitment shall show good and marketable title to the Real Property in Developer and shall otherwise be acceptable to the City Attorney, provided title shall be deemed to be acceptable to the City Attorney if the City Attorney does not submit written objections to title to Developer within ten (10) business days of receipt of the title insurance commitment. . J. All revisions to the Plans shall be submitted for approval by City Staff, and additional requirements or conditions for construction of Improvements may be imposed upon Developer, based upon any material revisions to the Plans. All revised Plans must be signed by the consultant preparing such Plans, and shall include revision dates. K. As provided in Paragraph 22 of this Amended PUD Agreement, all paved surfaces and utilities constructed within the Real Property, other than the City Improvements, shall be private, and the City shall have no responsibility for the operation, maintenance or repair of any such private paved surfaces, utilities or Improvements. L. Any request for closure of a public street by Developer must be accompanied by a detailed traffic control and detour plan acceptable to City Staff. Any closure or barricading of the sidewalks and parking lanes in the right-of--way of Mainstreet between Seventh Avenue and c:HopcivilVVlainstreetPhase2.PUD.022607.Clean - 17 - Eighth Avenue will not exceed 180 days from date of the commencement of the demolition work described in Paragraph 12B. M. Developer shall otherwise comply with all conditions and requirements imposed by the City Council of the City in its Resolution number 04-38 approving the ordinance for the overlay PUD zoning for the Real Property; Resolution No. 06-_ approving the Plat; Resolution 06-15 approving the site plan for redevelopment of the Real Property and with the requirements of any applicable statutes, ordinances, codes or regulations. 13. Compliance With Other Requirements, Assignment by Developer, Termination. Developer agrees that it shall comply with this Amended PUD Agreement, the conditions stated in the City Council Resolutions and ordinance approving the PUD overylay zoning and the Plat, and the provisions of the City's Code of Ordinances. The terms, conditions and restrictions established by this Amended PUD Agreement shall run with the title to the Real Property and apply to and bind the Developer and each and every subsequent owner of any part of the Real Property and their respective successors and assigns, and shall operate as a covenant passing with the title to the Real Property and any part thereof. All of said terms, conditions and restrictions are imposed upon the Real Property as a servitude in favor of the City of Hopkins, Minnesota, for its benefit only. The Developer may assign its rights or obligations under this Amended PUD Agreement to a subsequent owner of the Real Property in connection with the transfer of title to the Real Property to such subsequent owner without the prior approval of the City, provided such subsequent owner of the Real Property assumes Developer's obligations under this Amended PUD Agreement and, further provided, such assignment shall not relieve Developer of any obligation arising prior to the effective date c:HopciviluvlainstreetPhase2.PUD.022607.Clean - 18 - of the assignment. Developer shall not otherwise assign its rights or obligations under this Amended PUD Agreement without the prior written approval of the City. The terms, conditions and restrictions established by this Amended PUD Agreement are perpetual in duration except that, upon Developer's completion of all of the demolition, removal, grading and restoration work required by Paragraph 12.B of this Amended PUD Agreement in compliance with the provisions of said Paragraph 12.B, the City shall execute and deliver to Developer a Certificate, in recordable form, certifying as to Developer's compliance with the provisions of Paragraph 12.B. 14. Security and Claims. To guaranty Developer's compliance with the terms of this Amended PUD Agreement, payment of the cost of all City Improvements and completion of construction thereof, Developer or an authorized agent of Developer shall deliver to the City the following Letter(s) of Credit and/or surety bond(s) acceptable to and in favor of the City (the "Security") issued by a bank or surety reasonably acceptable to the City: A. The Security for the landscaping improvements comprising apart of the Improvements shall be delivered to the City before the execution and release of the Plat by the City. The amount of such Security for landscaping improvements shall be equal to 150 percent of the estimated cost of the landscaping improvements, as established by a written estimate submitted by Developer's landscaping contractor. B. The Security for the City Improvements, other than landscaping improvements, shall be delivered to the City before commencement of construction of the City Improvements or issuance of a permit by the City permitting commencement of such construction. The amount of such Security for the City Improvements, other than landscaping improvements, shall equal 100 c:HopciviluvlainstreetPhase2.PUD.022607.Clean - 19 - percent of the cost of the City Improvements as established by: i) the actual cost of completion of construction of the City Improvements as stated in the written contracts or subcontracts for their construction and installation with the contractors or subcontractors retained by Developer or Developer's general contractor (which written contracts or subcontracts shall be delivered to the City), or ii) a written estimate from Developer's Engineer approved by the City Engineer. The Security shall be conditioned upon Developer's completion of the City Improvements for which the Security is provided, performance of Developer's warranty under Paragraph 8 of this Amended PUD Agreement including replacement of any defective or nonconforming City Improvements and payment of the entire cost thereof, and the form and content of the Security shall be subject to the reasonable approval of the City. The Developer shall maintain the Security in effect for a term ending two (2) years after the date on which Developer has • substantially completed the City Improvements and delivered proof of payment therefore to the City (which latter date is herein referred to as the "Termination Date"). Developer shall initially deliver to the City the original Security expiring no earlier than one (1) year after the date of delivery of the original Security to the City. Thereafter, no later than thirty (30) days before the expiration of the Security, Developer shall deliver to the City original written evidence, in form reasonably acceptable to the City, extending the term of the Security for successive one (1) year periods, but in no event extending beyond the Termination Date. If Developer fails to deliver such original written evidence of extension of the Security at least thirty (30) days before expiration of the Security, Developer shall be deemed to be in default under this Amended PUD Agreement and the City may draw upon the Security. With City approval, upon receipt of evidence acceptable to the City of payment of financial obligations related to the construction of c:Hopcivil~lVlainstreetPhase2.PUD.022607.Clean - 20 - the City Improvements, the Security may be reduced from time to time as financial obligations relating to the construction of the Improvements are paid, but in no case shall the Security be reduced to an amount less than forty percent (40%) of the cost of the City Improvements (such cost to be determined in the manner specified in Subparagraph B of this Paragraph 14) until the Termination Date. Notwithstanding the provisions of the preceding sentence, the Security for the landscaping improvements comprising a part of the Improvements may not be reduced, and shall be maintained at its original amount until one (1) year after completion of such landscaping improvements. The City may draw upon or enforce the Security for any violation of the terms of this Amended PUD Agreement which is not cured within ten (10) business days after written notice to the Developer, provided, in the event the default is such that it cannot be cured with reasonable diligence within ten (10) business days, the City shall not draw upon the Security so • long as Developer is proceeding with all due diligence to cure such default and such default is, in fact, cured within thirty (30) days after the initial written notice of default to Developer. If the City Improvements are not completed on the date specified in Paragraph 11 of this Amended PUD Agreement, the City may also draw upon or enforce the Security. If the Security is drawn upon, the draw shall be used to cure the default (including completion of the City Improvements by the City, provided the City shall have no obligation to complete the City Improvements) and may also be used to pay or reimburse the City for any cost, expenses or damages recoverable under Paragraph 15 of this Amended PUD Agreement. The Security shall be released to Developer on the Termination Date. In the event the City receives notice of or claims from laborers, materialmen or others contributing to the City Improvements that any amounts due them have not been paid when due, and such laborers, materialmen or others are seeking c:HopciviluVlainstreetPhase2.PUD.022607.Clean - 21 - payment out of the Security or intend to assert claims against the City, the City Improvements or the real property on which the City Improvements have been installed, and if such claims are not fully resolved at least ninety (90) days before the Security will expire, Developer hereby authorizes the City to commence an Interpleader action pursuant to Rule 22, Minnesota Rules of Civil Procedure for the District Courts, to draw upon the Security in an amount up to 125 percent of the claims and deposit the amount so drawn with the District Court Administrator in compliance with said Rule 22, and, upon such deposit, Developer shall release, discharge and dismiss the City from any further proceedings as it pertains to the sums deposited with the District Court Administrator, except that the Court shall retain jurisdiction to determine attorneys' fees. The Developer agrees that it shall protect, indemnify and hold the City and its agents, representatives and employees harmless from and against all costs, damages and liabilities, including reasonable attorneys' fees and Court costs, resulting from • or incurred in connection with Developer's failure to comply with the terms, covenants, conditions and requirements of this Amended PUD Agreement. 15. Enforcement of Amended PUD Agreement. The terms, conditions, requirements and restrictions established by this Amended PUD Agreement shall be enforceable exclusively by the parties to this Amended PUD Agreement and shall be enforceable by injunctive relief, prohibitive or mandatory, to prevent the breach of or enforce performance or observance of the terms, conditions, requirements and restrictions established by this Amended PUD Agreement, or by any other available legal proceeding or remedy, including, but not limited to: a. Legal proceedings to recover, collect, pay or reimburse the City for the cost of c:HopciviluVlainstreetPhase2.PUD.022607.Clean - 22 - completing construction of the Improvements. b. All costs and expenses incurred by the City in curing any other default by Developer in the performance of any of the terms, covenants and conditions of this Amended PUD Agreement. c. All reasonable costs, fees and expenses for engineering, legal and administrative fees and expenses incurred by the City in enforcing Developer's performance of this Amended PUD Agreement or the completion of construction of the Improvements. d. Any other remedy or sanction provided by Minnesota Statutes or the Ordinances of the City of Hopkins. The City agrees that it shall give Developer written notice and a reasonable opportunity to cure any default by Developer in the performance of its obligations under this Amended PUD Agreement before incurring third-party costs and expenses that are recoverable from Developer under Subparagraphs a-d of this Paragraph 15, provided Developer shall proceed with all due diligence to cure any such default and shall cure the same within thirty (30) days after delivery of Notice of Default to Developer, provided, if the default is of such a nature that it cannot be cured within thirty (30) days, Developer shall have such additional period of time to cure such default as is necessary exercising and proceeding with all due diligence. If Developer fails to pay any amount due to the City under this Amended PUD Agreement after thirty (30) days' written notice to Developer demanding such payment, Developer agrees the City shall be entitled to levy a special assessment against the Real Property in the amount stated in the Notice to Developer in accordance with Minn. Stat. Chapter 429, and Developer waives all objections to or appeals of the final amount of such special assessment levied against the Real Property. Developer acknowledges that the rights of the City to enforce performance of the terms, conditions, requirements and restrictions established by this Amended PUD Agreement are special, unique, c:HopcivilWlainstreetPhase2.PUD.022607.C1ean - 23 - and of an extraordinary character and that, in the event Developer violates or fails or refuses to perform any term, condition or restriction established by this Amended PUD Agreement, the City shall have no adequate remedy at law. Developer agrees, therefore, that in the event Developer violates any term, condition or restriction established by this Amended PUD Agreement, the City, may, at its option, initiate and prosecute an action to specifically enforce the performance of the terms, conditions and restrictions established by this Amended PUD Agreement. No remedy specified in this Amended PUD Agreement is intended to be exclusive, and each remedy shall be cumulative, and in addition to each and every other remedy. Failure of the City to enforce any of the terms, conditions and restrictions established by this Amended PUD Agreement in any particular instance shall in no event be deemed to be a waiver of the right to do so as to any subsequent violation. Developer agrees that Developer shall pay the City's reasonable attorneys' fees and expenses incurred in the enforcement of the terms, conditions and restrictions of this Amended PUD Agreement. 16. Notices. Any notice, request or other communication required or provided to be given under this Amended PUD Agreement shall be in writing and shall be deemed to be duly given when delivered personally to an officer or manager of Developer or to the City Manager of the City or when mailed by first class United States Mail, postage prepaid, addressed as follows: To Developer: Marketplace Holdings, Inc. 750 Second Street N.E. Hopkins, MN 55343 Attention: Ron Mehl To City: City of Hopkins 1010 First Street South Hopkins, MN 55343 Attention: City Manager c:Hopcivil~IVlainstreetPhase2.PUD.022607.Clean - 24 - or to such other address as either party, by notice given as herein provided, shall designate. Mailed notice shall be conclusively deemed to have been given two (2) business days after the date of mailing. 17. Severability. Invalidation of any of the terms, conditions, provisions or restrictions of this Amended PUD Agreement, whether by Court Order or otherwise, shall in no way affect any of the other terms, conditions, provisions and restrictions, all of which shall remain in full force and effect. 18. Headings. The headings and captions at the beginnings of paragraphs of this Amended PUD Agreement are for convenience of reference only and shall not influence its construction. 19. Execution of Counterparts. This Amended PUD Agreement may be simultaneously executed in several counterparts, each of which shall be an original, and all of which shall constitute one and the same instrument. 20. Construction. This Amended PUD Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota. 21. Evidence of Title and Recordation of Amended PUD Agreement. Prior to the execution of this Amended PUD Agreement, Developer shall provide the City with evidence of title to the Real Property, at Developer's expense, in the form of a current Commitment for Owners' Title Insurance. Developer shall cause this Amended PUD Agreement to be executed by or consented to by all persons holding any interest in the title to the Real Property, or lien thereon, as deemed necessary by the City. Developer agrees to cause this Amended PUD c:Hopcivi1~1V1ainstreetPhase2.PUD.022607.Clean - 25 - Agreement to be filed for record as a restriction against the title to the Real Property. 22. Ownership, Maintenance and Repair of Improvements. The City shall not be responsible for the maintenance or repair of any of the Improvements other than the City Improvements upon their acceptance by the City in accordance with the terms of this Agreement, and shall have no liability whatsoever for any costs, expenses, liabilities, obligations, claims and demands related to or arising from, either directly or indirectly, the design, construction, use, maintenance, repair, reconstruction or replacement of the Improvements, together with all modifications or replacements thereof or additions thereto. The Developer shall protect, indemnify and hold the City, and its officials, representatives, agents and employees, harmless from and against all liabilities, obligations, responsibilities, claims, costs, expenses (including reasonable attorney's fees), demands and causes of action relating to or arising out of, directly or indirectly, the design, construction, maintenance, repair, reconstruction, replacement, ownership or use of the Improvements (provided that the City shall be responsible for maintenance and repair of the City Improvements following their acceptance by the City, but subject to the Developer's warranty of the City Improvements), and any replacements or substitutions therefor, including, but not limited to, claims for injury to persons or property. Notwithstanding the provisions of this Paragraph 22, no provision of this Amended PUD Agreement shall be interpreted to impose upon the City or relieve the Developer or the Developer's successors and assigns from any liability or obligation related to the maintenance and repair of the City Improvements, including, but not limited to snow and ice removal from sidewalks, imposed upon Developer or its successors and assigns by any statute, ordinance or regulation. c:Hopcivil~IvlainstreetPhase2.PUD.022607.C1ean - 26 - IN WITNESS WHEREOF, Developer and the City have executed this Amended PUD Agreement as of the date and year first above written. MARKETPLACE HOLDINGS, INC. By Its STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of 2007, by , the , of Marketplace Holdings, Inc., a corporation organized under the laws of the State of Minnesota, on behalf of the corporation. Notary Public CITY OF HOPKINS sy Its By Its c:Hopcivil~IvlainstreetPhase2.PUD.022607.Clean - 27 - STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of 2007, by the and the 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:HopciviluVlainstreetPhase2.PUD.022607.Clean - 28 - MORTGAGEE'S CONSENT Commerce Bank, a Minnesota banking corporation, the mortgagee named in that certain mortgage, dated (the "Mortgage"), which Mortgage was recorded as Hennepin County Document No. hereby consents to the foregoing Amended and Restated PUD/Development Agreement and agrees that the Mortgage shall be subject and subordinate to said Amended and Restated PUD/Development Agreement. By STATE OF COUNTY OF )SS Its The foregoing instrument was acknowledged before me this day of 2007, by the and the of Commerce Bank, a banking corporation, under the laws of the State of Minnesota, on behalf of the corporation. Notary Public c:Hopcivil~IvlainstreetPhase2.PUD.022607.Clean - 29 - FXHTRTT A LEGAL DESCRIPTION OF REAL PROPERTY Lots 1 and 2, Block 1, and Lot 1, Block 2, Marketplace & Main, according to the recorded plat thereof, Hennepin County, Minnesota. c:~I Iopcivil~lVlainstreetPhase2.PUD.022607.Clean A EXHIBIT B DEVELOPMENT DESIGN STANDARDS I. Intent. The purpose of this overlay zone is to create a Planned Unit Development permitting the development, construction and operation of mixed use, multi-story residential and commercial facilities complying with the permitted uses and design standards stated herein. The use of the overlay PUD zoning is to allow for more flexible design standards while creating a higher quality project. The PUD overlay zone requires that the Development demonstrate a higher quality of architectural standards and site design. The underlying B-3 zoning will remain in effect and any future use of property within the PUD overlay zone must be consistent and in conformity with the underlying B-3 zoning and the PUD overlay zoning. II. Permitted Uses. The permitted uses in the PUD overlay zone are limited to retail and commercial uses consistent with the underlying B-3 zoning and owner-occupied housing consisting ofmulti-family/condominium housing or townhomes. III. Setbacks. Setback requirements shall be the same as applicable in the underlying B-3 zoning district. IV. Design Standards. Building Design and Construction: a. Retail or commercial uses shall constitute not less than 5,000 square gross feet in total within the PUD overlay zone between 7th Avenue and 8th Avenue and shall have frontage on Mainstreet. b. In the area west of Seventh Avenue, north of Mainstreet and east of the midpoint of the block, owner occupied multi-family housing shall be located above the retail/commercial space, with total building height of not less than three stories arid not more than four stories. c. In the area north of Mainstreet located between Sixth Avenue and Seventh Avenue, owner-occupied housing consisting of townhomes designed and constructed in accordance with the architect's plans and specifications submitted to and approved by the Hopkins City Council by its Resolution No. 06-15 approving the site plan for the development of the Real Property . All structures shall have a height of at least two stories above grade, but not more than three stories, provided four stories may be allowed if the building height does not exceed the maximum height permitted in the underlying B-3 zoning district, Developer demonstrates that the proposed four story structure will be architecturally compatible with surrounding buildings and adequate off-street parking is provided in compliance with the City's ordinances. c:I~opcivil~IvlainstreetPhase2.PUD.022607.Clean B 1 d. In the area east of Eighth Avenue, north of Mainstreet and west of the midpoint of the block, owner-occupied housing consisting of townhomes designed and constructed in accordance with the architect's plans and specifications submitted to and approved by the Hopkins City Council by its Resolution No. 06-15 approving the site plan for the development of the Real Property All structures shall have a height of at least two stories above grade, but not more than three stories. e. Structured parking shall be provided for the multi-family residential use in compliance with the parking requirements of the City's Code of Ordinances. Such structured parking shall be designed and constructed in accordance with the architect's and engineer's plans and specifications therefor submitted to and approved by the City Council in its Resolution No. 06-15 approving the site plan for the development of the Real Property. Adequate on-site parking shall also be provided for all retail, commercial and office uses in compliance with the recommendations and requirements of the parking study prepared by SRF Consulting Group, Inc., dated February 1, 2006. f All development and construction must meet the design guidelines stated in the Downtown Overlay District Ordinance, Section 556 of the Hopkins City Code. g. In addition to the above Design Standards, the exterior materials, finishes, facades and other exterior design elements of the improvements constructed on the Real Property shall be in accordance with the architect's plans, specifications and elevations therefor submitted to and approved by the City Council in its Resolution No. 06-15 approving the site plan for the development of the Real Property. V. Prohibited Uses. The following uses shall be prohibited within the PUD overlay zone, as either primary or accessory uses, whether or not the same are permitted by the underlying B-3 zoning: automobile sales or leasing, automobile repair or body shop, adult establishment, adult motion picture theater, adult novelty business or bookstore, amusement device establishment, cabinet, electrical, heating,, plumbing, upholstery or air conditioning sales or service shop, fix-it shop, liquor store, open sales lot, pawn shop, drive-thru restaurant, warehouse, taxi terminal, tattoo parlor, currency exchange or tobacco shop. If any of the words and phrases in the preceding sentence are defined in the Hopkins Code of Ordinances, such words and phrases, when used in this paragraph, shall have the same meanings stated in the Hopkins Code of Ordinances. c:HopciviluvlainstreetPhase2.PUD.022607.Clean B2