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CR2002-115-PUD Regency .~ G \ T Y 0 F- ~ . July 11, 2002 HOPKINS Council Report 02-115 PLANNED UNIT DEVELOPMENT AGREEMENT- REGENCY DEVELOPMENT Pronosed Action. Staff recommends the following motion: Move to approve the planned unit development (PUD) agreement to construct 38 carriage homes and 28 single-family homes for the Regency development. Overview. As part of the overlay zoning to PUD for the construction of the Regency development, the Beard Group is required to sign a PUD agreement. The PUD agreement is a document that spells out the specifics of the action and timetable that will need to be complied with to implement the various conditions of the conditional use permit. Jerry Steiner of the City Attorney's office prepared the pun agreement. . Primary Issues to Consider. . What are the specifics of the PUD agreement? . Are there changes with the development? SUO)lortine Documents. . Agreement I' i \ Ictl'll.,f ChdDkfl1':Y\ Nancy (~ Anderson, Aicp Planner Financial Impact: $ N/A Budgeted: YIN Source: - Related Documents (CIP, ERP, etc.): Notes: . CR02-115 Page 2 . Primary Issues to Consider. . What He the specifics of the pun agreement? The following are the main points addressed in the agreement: . Development improvements . Identification of and compliance with plans . Description of the public improvements Regency will complete . The construction standards and procedures for the public improvements . Improvements to be transferred to City . Submission of a storm water management plan . Acceptance and warranty of public improvements by the City . Reimbursement of costs to the City from this development . Timetable for the performance of the public improvements . Compliance with conditional use permit requirements . Are there changes with the development? To the staffs knowledge, there are no changes to the development. . Alternatives. 1. Recommend approval of the PUD agreement. By approving the PUD agreement, the Regency development will be able to be constructed as proposed. 2. Recommend denial of the PUD agreement. By denying the conditional use permit agreement, the Regency development will not be able to be constructed as proposed. 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. . . Miller. Steiner & Curtiss. P.A. PUDIDEVELOPMENT AGREEMENT This PUD/Development Agreement (this "PUD Agreement") is made and executed this ~ day of . 200.2, by Hopkins Mainstreet, Inc., a Minnesota corporation ("Developer"). and the City of Hopkins, a municipal corporation under the laws of Minnesota ("City"). RECIT ALS A. Developer is the fee owner of 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. The Developer has applied to the City to approve overlay rezoning for the Rea] Property so that, in addition to its current zoning classifications of R-l-A and R- J -C , which shall remain in effect the Real Property shall also have an overlay zoning classification of Planned Unit Development. The Developer has also applied to the City for approval of a replat of the Real Property to be known as Regency Addition (hereinafter referred to as the "Plat") and for a Conditional Use Permit for the development of the Property by the construction of thirty-eight (38) townhomes and twenty-eight (28) units of detached single family housing (the "CUP"). The City has approved such overlay zoning. the Plat and the CUP. but upon and subject to the agreements. terms. covenants and conditions of this PUD Agreement C. On June 4, 2002. the City Council of the City adopted Ordinance No. '8.77 approving the overlay zoning for the Real Property. Resolution 02-51 approving the Plat and Resolution 02-50 approving the CUP. As a condition of such approvals. the City has required Developer to execute and record this PUD Agreement and to . comply with and perform all of the agreements. terms. covenants. conditions and restrictions hereof. Developer has c: hopcivil\Mai nstreet. PUD . agreed: i) to accept such agreements. terms, covenants. conditions and restrictions, iil to execute this PUD Agreement, and iii) to record this PUD Agreement as a servitude upon the title to the Real Property. D. Minn. Stat 462.358. Subd. la. and Section 565.02 of the Hopkins City 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 Plat and plmmed unit development zoning. The City has required Developer to enter into this PUD Agreement under the authority provided in said Statute and Ordinance. NOW. THEREFORE, in consideration of the foregoing Recitals and the approval of the overlay zoning for the Real Property. the Plat and the CUP. Developer agrees to the terms and conditions stated in this PUD Agreement and declares that all of the Real Property and the Plat 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 D, are incorporated in and made a part of this PUD Agreement in their entirety. 2. Development Imorovements. Developer shall construct install, complete and pay for the work, . labor. materials. facilities and improvements required for the development of the Plat. including all of the facilities and improvements described in Plans identified in Paragraph 3 of this PUD Agreement and the facilities and improvements described in Paragraph 4 of this PUD Agreement. all of which work, labor. materials. facilities and improvements are herein collectively refelTed to as the "Improvements". The Improvements shall include the landscaping that is to be installed on individual platted lots within the Plat and the landscaping improvements to be installed on outlots. The Improvements shall be completed in accordance with: i) the Plans defined and identified in Paragraph 3 of this PUD Agreement: and iii) all of the other terms of this PUD Agreement. 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 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 PUD Agreement. If any of the Plans are designated as "Preliminary". such Plan(Sl shall. subject to City approval. be modified. at Developer's . c: hopcivil\M ai nstreet. PUD . 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. The Plans are: Description of Plan PlanA Final Plat prepared by Schoell & Madson. rIlC., as approved by the City Council. June 4, 2002. PlanB Preliminary Grading and Drainage Plan prepared by BKBM Engineers. dated May 10. 2002. Plane Preliminary Erosion Control Plan prepared by BKBM Engineers. dated May IlL 2002. PlanD Preliminary Demolition Plan prepared by BKEM Engineers. dated May 10, 2002. PlanE Preliminary Landscape Plan prepared by Markell Laberee Design Group. dated May 9. 2002. . PlanF Preliminary Utility Plans and Detail Sheet prepared by Schoell & Madson. Inc., dated May 10. 1002. PlanG Preliminary Storm Water Management Plan prepared by . dated ,2002 PlanH Preliminary Geometric and Paving Plan prepared by BKBM Engineers, dated May J O. 2002. 4. Additional Improvements. In addition to the facilities and Improvements depicted in the Plans. Developer shall also construct. install and pay for the following facilities and Improvements; A All of the sanitary sewer. storm sewer. water, gas, electric, telephone. cable television and other utility improvements. streets and driveways and other common facilities and Improvements located within the boundaries of the Real Property shall be constructed in the manner depicted in and required by the Plans and/or this POO Agreement by Developer. at Developer's sole expense. B. All of the NURP ponds 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 Agreement . c :hopc ivil\Mainstreet. P UD . S. Construction Standards and Procedures. The Improvements shall be constructed and installed in accordance with the final Plans. City standards. codes. regulations and ordinances. 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 and approved by the City Engineer prior to issuance of a Building Permit for the work depicted in such plans. In connection with the construction of the Improvements. 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 Improvements, Developer shall supply the City with the following relating to the Improvements: (a) a complete set of reproducible mylar as-built plans. (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 Coordinates. (ii) All Cell Libraries and Line Styles shall be included. . (iii) Level structure shall conform to current Hopkins Level Structure. 6. License. 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 Improvements. and final acceptance and approval of the Improvements by the City. all of the Improvements located within or upon any public easements. induding drainage and utility easements. if any. dedicated in the Plat. rights- of-way or other City-owned land shall become the sole property of the City. Those Improvements that are to become the sole property of the City as provided in the first sentence of this Paragraph 7 are herein referred to as the "City Improvements". Developer shall transfer the City Improvements to the City hee and clear of all liens and encum brances. At sllch time as the City Improvements have been completed, representatives of Developer's contractors. . c: hope ivil\Mai nstreet. PUD . 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 contractm(s) responsible for completion of the City Improvements to assure that the same are completed in accordance with the requirements of this PUD Agreement. As a condition of its 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 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 ofthe City. which approval shall be granted if Developer is in full compliance with all of the terms. conditions, agreements, and requirements of this PUD Agreement. . 8. \Val"rantv. 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 hy 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 Citv. Developer shall reimburse the City for all out-of pocket costs incurred by the City in connection with the preparation. negotiation and execution of this PUD Agreement. construction of the Improvements and the administration. performance and enforcement of this PUD Agreement. Such oUH)f-pocket costs to he reimbursed by Developer shall include, but are not 1 imited to, all fees due to consultants retained by City. whether incurred before or after the date of this PUD Agreement. including, without limitation. traffic. development. fiscal. environmental. geotechnical. surveying. engineering. inspections or legal . c:hopcivi I\Mainstreet. P U D . services. Such reimbursements from Developer shall be due and payable within thirty (30) 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 (I %) per month, if not paid by Developer within thirty (30) days of the date the applicable invoice or statement has been delivered to Developer. 10. Other Governmental Approvals. 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 governmen- tal authorities whose approval is required for the construction of the Improvements and development of the Plat on the Real Property. Developer shall maintain all such required permits and comply therewith at all times. 11. Time of Performance. Developer shall commence construction of the Improvements no later than the (_th) day after the date of this PUD Agreement and shall substantially complete construction of the Improvements no later than , 2002, except that the final lift of asphalt on any street or driveway Improvements shall be completed no later than .200 - 12. Additional Conditions. Developer agrees that the Improvements shall be completed and the Real . Property and the Plat shall be developed, held. transferred. occupied, used and improved subject to and in compliance with the following additional terms and conditions: A. Developer shall implement the following parking restrictions: i) On-street parking along the north side of Second Street Northeast between Tyler Avenue and Momoe Avenue will be limited to two hours maximum between g a.m. and 6 p.m.. Monday through Saturday. ii) No parking will be allowed for a minimum of forty (40) feet from the comers of all public street intersections and signs will be erected to enforce this no parking restriction. iiif No parking signs and no parking enforcement will remain in place and continue as the same presently exists along the east side of Tyler Avenue North. In addition. the existing two hour restricted parking enforcement and signs will remain in place and continue alung the west side of Tyler A venue North and will be extended south to the south boundary line of the Real Property. . c: hopcivi I\Mainstreel. PUD . iv) The existing two hour parking restrictions and signs along Jackson and VanBuren A venue North will continue in effect and shall also be extended south, to the south boundary of the Real Property. v} The parking restrictions and signs presently in place and enforced along Monroe Avenue will remain in effect. Deve]oper shall prepare and submit a signing plan for the Development incorporating the above parking requirements, which signing plan shall be subject to review and approval by City Staff. Developer shall pay all costs associated with erecting signs giving notice of the above parking restrictions, and the City shall enforce sLlch parking restrictions. Commencing one (I) year after the date of this PUD Agreement. upon request by Developer or at its nwn initiative, the City may review the above parking restrictions to determine whether they should be continued or modified and the City reserves the right to modify the above parking restrictions and requirements at any time based upon parking demand and/or parking problems that are determined to exist, including . those that may result from the development of the Real Property. B. The applicant shall record a Declaration of Covenants, Conditions and Restrictions (the "Declaration") as an encumbrance on the title to all of the Real Property and the lots included in the Plat. The existence of this PUD Agreement and the obligations established hereunder shall be noted in the Declaration, and the Declaration shall be recorded prior to issuance of any building permit for construction of any residence upon the Real Property. The Declaration shall also notify all purchasers and owners of lots and residences within the Plat that on-street parking an public streets adjacent to the Real Property. including the on-street parking referred to in Paragraph 12.A.. above, is not available on a permanent basis and that such on-street parking may be eliminated or further restricted in the future by the City. The Developer shall deliver a draft of the Declaration to the City prior to the release of the Plat by the City. The covenants. conditions and restrictions of the Declaration shall be acceptable to City Staff and the City Attorney. and shall specifically include a notice to all purchasers and owners of lots and residences within the Plat thm the public roads adjacent to the Real Property are included within the proposed 2003~2007 Capital . c: hope ivil\Mainstreet. PUD . Improvement Program of the City as potentially needing reconstruction within that time period. The Declaration shall provide that all purchasers and owners of lots within the Plat. by accepting a conveyance of title to any lot, are deemed to be notified of the potential for reconstruction of the adjacent public roads and that the lots they are acquiring will be subject to special assessments in accordance with the City's assessment policy for such road reconstruction projects. This provision will not. however, constitute a waiver of any rights any purchaser or owner of a lot within the Plat may have to notice a public hearing or to appeal assessments in accordance with Minn. Stat. Chapter 429. The Declaration shall also provide that refuse and recycling services for residences constructed within the Plat shall not be provided by the City but shall be privately contracted for by the owners of lots within the Plat or their homeowner's association. C. Upon approval of the Declaration by the City, the City shall execute a Certificate, in recordable form. certifying that the Declaration has been reviewed and approved by the City for compliance with the requirements of this PUD Agreement. D. A park dedication fee of Two Hundred and 00/100 Dollars (5)200.00) per townhome and Five . Hundred and OOIl 00 Dollars ($500.00) per single family detached residence, for a total of Twenty- One Thousand Six Hundred and 0011 OOths Dollars ($21,600.00), shall be due and payable in the following manner: such fee shall be paid at the rate of Two Hundred and OO/IOOths Dollars ($200.00) per townhnme and Five Hundred and OO/lOOths Dollars ($500.00) per detached single family residence at the time of building permit issuance for each townhome or detached single family residence to be constructed on lots within the PIat. E. The Developer will execute the required form of Access and Right-of-Entry Agreement in favor of the City relating to the construction and maintenance of the rain gardens and related drainage improvements. Such Access and Right-of-Entry Agreement will be exe(:uted 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 rain gardens and related drainage improvements. in perpetuity. F. The Developer shall install. at the Developer's sole expense, landscaping improvements within the . c: hope ivil\Mai nstreet. PUD It rights of way of Monroe Avenue and Tyler A venue for the purpose of screening motor courts or parking areas from public streets. The final Landscape Plan. Plan E, shall depict such landscaping. and shall be subject to approval by City Staff. G. The Developer shall provide evidence of title to the Real Property and any property over which public easements are to be obtained to the City. Such evidence of title shall be acceptable to the City Attorney. H. The Developer shall also construct. at the Developer's sole expense. fencing in all locations shown in the Plans. including. specifically. in the following location(s): Fencing shall be constructed along the entire north side of the Real Property except in locations where the adjoining property owner to the north of the Real Property has requested. in writing. that such fencing not be constructed. The Final Plans shall include specifications for the fencing to be constructed by Developer, which shall meet the requirements of the City's Zoning Ordinance. L The Final Plans shall be acceptable to and approved by City Staff and shall incorporate all . comments and requirements identified in the May 20. 2002. Memorandum from the Assistant City Engineer to Developer and BKBM Engineers. J. No building permit shall be issued by the City for the construction of any building or residence UP(lfl the Real Property until all of the Improvements. with the exception of any landscaping. curb, gutter or paving improvemeflts constituting part of the Improvements, have been substantially completed in accordance with the Plans and the requirements of this PUD Agreement, except that the City shall issue a building permit for one townhome structure and one detached single family residence to be constructed by Developer as models. but upon and subject to the following conditions: i) The model townhome structure shall be constructed on townhome Lots _' Block ii) The model single family detached residence shall be constructed on Lot _' Block - . c: hopcivil\Mai nstreet. P U D e iii) The Developer shall have complied with all other conditions and requirements that are otherwise applicable to the issuance of a building permit for construction of a single family residence. IV) Temporary Certificates of Occupancy may be issued for such model townhome structure and residence when all utilities are available to the above Lots and are connected to the model townhome structure and residence. Such temporary Certificates of Occupancy shall allow use of the model townhome structure and residence only for display and sales purposes, but not for occupancy. No final Certificate of Occupancy shall be issued for any residence constructed upon the Real Property, including the model units, until all of the Improvements, with the exception of the tinal lift of asphalt and any landscaping constituting a part of the Improvements, have been substantially completed in compliance with the requirements of the Plans and this PUD Agreement K. As provided in Paragraph 3 of this PUD Agreement. all Plans, including any preliminary or final . plans. shall be submitted for approval by City Staff. and new or revised conditions for construction of Improvements may be imposed upon Developer, based upon revisions to any Plans. All future plans must be signed by the consultant preparing the same. and shall include revision dates. L Developer shall dedicate and/or transfer to the City permanent public drainage and utility easements. ten feet in width. adjacent to all City streets. Such easement shall be established either by dedication in the Plat or by conveyance to the City from Developer. M. The Developer shall grant andlor dedicate to the City additional road right of way in the northeast corner of Jackson A venue and St. Louis Street. and in the northwest corner of Tyler A venue and St. Louis Srreet in the location. dimensions and/or as legally described in Exhibit B attached hereto. The Plat and the Final Plans will include this additional road right of way. Such additional road right of way shall be transferred either by dedication in the Plat or by conveyam:e to the City from Developer. N. As provided in Paragraph 22 of this PUD Agreement. all paved surfaces and utilities constructed . c: hope ivil\Mai nstreet. PUD . within the Real Property including all of the Improvements. 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. O. The Plans must clearly state that the contractor( s) retained by Developer to construct the Improvements will be responsible for all utility locates and Gopher State One call requirements. P. Developer shall prepare a signage plan for the Development, which shall include designated parking restriction areas along adjacent streets and other project signage requirements, such as one-way roads, dead-end ba1Ticades and stop signs. The signage plan shall include specifications for two project signs in accordance with standard detail DGN-4. Q. Any request for closure of any City street by Developer must be accompanied by a detailed traffic control and detour plan acceptable to City Staff. R The Final Plans must include additional fire hydrants and a turnaround in the alley that comply with the Fire Marshalr s specifications and requirements. S. The Final Plans will show the entrance monuments for the Plat to be located at the corners of . Tyler. Monroe. VanBuren and Jackson Avenues. which must meet the visibility requirements contained in City Ordinance 520.11. T. The existing pedestrian crosswalks across Second Street Northeast shall be removed. at Developer's sole expense. This work will include removal of crosswalk striping and removal and salvaging of all crosswal k equipment and fixtures, including signals. controllers. signs and related equipment. This equipment shall be delivered to and retained by the City's Public Works Department. at 11100 Excelsior Boulevard. U. The Final Plans shall include a lighting plan depicting all proposed new exterior lighting and reconstruction or relocation of existing exterior lighting. The lighting plan will include lighting details. V. On the date of this PUD Agreement. Developer is also the owner of the former Alliant Tech System property located south of Second Street Northeast. The Real Property formerly served as surface parking lots for the AlIiant Tech Systems facility. Developer acknowledges that the . c: hopcivil\Mainslreet. PUD . development of the Real Property will result in the loss of availability of this parking for use by the former Alliant Tech Systems facility and that any future use or development of the former Alliam Tech facility mllst comply in all respects with the parking requirements of the City's Code of Ordinances. By approving the development of the Real Property requested by Developer. the City does not waive applicability or enforcement of any of the parking requirements of the City's Code of Ordinances as the same apply to the occupancy. use and development of the former AlIiant Tech Systems property, and Developer agrees that the loss of the parking lots formerly located on the Real Property shall not constitute a hard5hip to the former Alliant Tech Systems property. W. The Developer shall otherwise comply with all conditions stated in City Council Resolutions 02- 49. 02-50 and R 02-51; and with the requirements of any applicable statutes. ordinances. codes or regulations. including the City's engineering guidelines. 13. Compliance With Other Requirements, Assienment by Developer, Termination. Developer . agrees that it shall complete the Improvements in compliance with this PUD Agreement, the conditions listed in the City Council Resolutions identified in Recital Paragraph C of this PUD Agreement and the provisions of the City's Code of Ordinances. The terms. conditions and restrictions established by this 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 or the Plat and their respective successors and assigns. and shall operate as a covenant passing with the title to the Real Property. the Plat 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 shall not assign its rights or obligations under this PUD Agreement without the prior written approval of the City, which approval may be withheld or granted subject to or based upon reasonable terms and conditions. including: i) The experience and ability of the proposed Assignee in the development of projects similar to the project described in the Plans: iiI Evidence of the financial ability of the proposed Assignee to perform the Developer's obligations under and comply with the requirements of this PUD Agreement: and . c: hopcivil\Mainstreet. PUD . iii) The execution by the proposed Assignee of an Assumption of all of the Developer's liabilities and obligations under this PUD Agreement, and delivery of such written Assumption, in recordable form, to the City. Hopkins Mainstreet. Inc. may be released from its obligations as the Developer under this PUD Agreement only after final approval by the City of an Assignment and Assumption of the Developer's rights and obligations hereunder upon the terms and conditions stated in the preceding sentence. which final approval shall be evidenced only by the affirmative vote of the City Council of the City. Notwithstanding the foregoing. the City agrees that it shall approve and accept the Ryland Group, Inc.. as an assignee of the Developer's rights and obligations under this PUD Agreement, and shall release Hopkins Mainstreet. Inc., from its obligations as the Developer under this PUD Agreement. upon the execution and delivery to the City by the Ryland Group, Inc.. of an Assignment and Assumption. in recordable form, assuming all of the Developer's liabilities and Obligations under this PUD Agreement. The terms, conditions and restrictions established by Paragraph 21 of this PUD Agreement are perpetual in duration. All other agreements, wananties, terms. covenants, conditions and restrictions established by this PUD . Agreement shall continue in effect until the Developer has fully performed. satisfied and complied with all of such agreements. warranties. terms. covenants, conditions and restrictions in accordance with their terms and has discharged all of the Developer's obligations under this PUD Agreement. The ah'Teements, terms. covenants. conditions and restrictions established by this POO Agreement, other thun those described in Paragraph 22 of this PUD Agreement. may be terminated and released at any time, in whole or in part. by the City by means of a written Release. in recordable fonn. duly exen1ted by the City. provided that the City shall be under no obligation to release any of such terms. conditions or restrictions until: a) upon satisfactory completion of the City Improvements in compliance with the requirements of this PUD Agreement. the City shall execute and deliver to Developer a certificate, in recordable form. certifying as to Developer's compliance with the provisions of this PUD Agreement applicable to construction of the City Improvements~ and b) upon Developer's full compliance with the remaining agreements, warranties. terms. covenants. conditions and restrictions of this PUD Agreement. other than those described in Paragraph 22, the City shall execute and delivery to Developer. upon written request by Developer. a Certificate. in recordable form. certifying as to the Developer's compliance with such agreements. warrantie". terms. . c: hopcivi1\Mainstreet. PUD ------ ~- -- -- . covenants, conditions and restrictions. 14. Security and Claims. To guaranty Deve]oper's compliance with the terms of this PUD Agreement, payment of the cost of all City Improvements and landscaping improvements included as part of the Improvements and completion of construction thereof, 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" I issued by a bank or surety reasonably acceptable to the City: A. The Security for the Landscaping improvements comprising a part of the Improvements ("Landscaping") 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 ]25 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 the Landscaping, shall be delivered to the City before commencement of construction of such Improvements or issuance of a pemlit by the City permitting commencement of such construction. The amount of such Security for the City Improvements. other than the Landscaping. shall equal 100 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 Of subcontracts for their construction and installation with the contractors or subcontractors retained by Developer or Developer's general contractor (which written contracts Of subcontracts shall be delivered to the City), or if) 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 and Landscaping for which the Security is provided. performance of Developer's warranty under Paragraph 8 of this PUD Agreement including replacement of any defective or nonconforming City Improvements or Landscaping 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. Developer shall maintain the Security in effect for a term ending two (1) 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 refelTed to as the "Termination Date"). Developer shall initially deliver to the City the original Security expiring no earlier than one (]) 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 . c: hopcivil\Mainstreet. PUD - - . original written evidence, in form reasonably acceptable to the City, extending the term of the Security for sllccessive one (I) 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 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 the Improvements. the Security may be redw:ed 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 141 umil 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 he 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 PUD Agreement which is not cured within ten i 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 I business days, the City shall not draw upon the Security so long as Developer is prOl.:eeding 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 ( other than the final lift of asphalt) are not completed on . 200~ . 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 Improvements by the City. provided the City shall have no obligation to complete the Improvements) and may also be used to payor reimburse the City for any cost. expenses or damages recoverable under Paragraph 15 of this 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 or Landscaping that any amounts due them have not been paid when due. and such laborers. materialmen or others are seeking payment out of the Security or intend to assert claims against the City, the City Improvements. the Landscaping or the real property on which the Improvements have been installed, and if such claims are not fully resol ved at least ninety (90) days before the Security will expire. Developer hereby authorizes . c :hopcivil\Ma instreet. PUD - - -- -- -- . 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. 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 PUD Agreement. 15. Enforcement of PUD A2reement. The terms. conditions, requirements and restrictions established by this PUD Agreement shall be enforceable exclusively by the City of Hopkins. Minnesota. and shall be enforceable by injunctive relieL prohibitive or mandatory. to prevent the breach of or enforce performance or observance of the terms. conditions, requirements and restrictions established by this PUD Agreement. or by any other available legal proceeding or remedy. including. but not limited to: . a. Legal proceedings to recover. collect. payor reimburse the City for the cost of completing constrw:tion 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 PUD Agret:ment. c. All reasonable costs, fees and expenses for engineering, legal and administrative expenses incurred by the City in enforcing Developer's performance of this POO 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 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. in no event. shall the time for Developer to cure a default exceed thirty (30) days after delivery of Notice of Default to Developer. Developer acknowledges that the rights of the City to enforce performance of the terms. conditions. requirements and restrictions established by this . PUD Agreement are speciaL unique. and of an extraordinary character and that. in the event Developer violates or c; hopcivil\Mainstreet. PUD . fails or refuses to perform any term, condition or restriction established by this POO 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 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 PUD Agreement. No remedy specified in this 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 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 POO Agreement. Developer shall be liable for the obligations of Developer under this PUD Agreement. 16. Notices. Any notice. request or other communication required or provided to be given under this POO Agreement shall be in writing and shall be deemed to be duly given when delivered personally to an officer 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: Hopkins Mainstreet. Inc. 10 - 11th Avenue South Hopkins. MN 5S:~43 To City: City of Hopkins 1010 First Street South Hopkins, MN 55343 Attention: City Manager 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. Severabilih'. Invalidation of any of the terms. conditions. provisions or restrictions of this POO 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 farce and effect. 18. HeadiDl:!s. The headings and captions at the beginnings of paragraphs of this POO Agreement are for convenience of reference only and shall not influence its construction. 19. Execution of Counterparts. This 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. e: hope ivil\Mai nstreet. PUD -- ----- e 20. Construction. This PUD Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota. 21. Evidence of Title and Recordation of PUD Agreement. Prior to the execution of this POD Agreement. Developer shall provide the City \.vith evidence of title to the Real Property. at Developer's expense. in the form of a cunent Commitment for Owners' Title Insurance. Developer shall cause this 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 POO Agreement to be filed for record as a restriction against the title to the Real Property. 22, Ownership, Maintenance and Repair of Improvements. All of the paved surfaces and utilities within the Real Property, including all of the Improvements. other than the City Improvements, shall be and remain the sole property of the Developer. and its successors in title to the Real Property and the lots and outlats included within the Plat. The Improvements which are ta be the sole property of the Developer. and its Sllccessors. shall include. but are not limited to, all utility improvements, streets or driveways located within the boundaries of the . Plat other than the City Improvements. The Developer and its successors shall be solely responsible for all repair, maintenance (including. but not limited to. snowp]owing, snow removal, sweeping and resurfacing). restoration and replacement of any street or driveway impwvements and the repair and maintenance of any utility improvements. at the sole cost and expense of the Developer and its successors in interest. The City shall not be responsible for the maintenance or repair of any of the Improvements other than the City Improvements, 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 moditkarions Of replacements thereof or additions thereto. The Developer shall protect. indenmify 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 feInting 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 fOf maintenance and repair l1f the City Improvements following their acceptance by the City. but subject ta the Developer's warranty of the City Improvements). and any replacements or substitutions therefor. . c: hopcivil\Mai nstreet. P U D . including, but not limited to. claims for injury to persons or property. The recordation of this PUD Agreement shall constitute notice to all slIccessors of Developer, including purchasers of lots within the Plat of the non-liability of the City for maintenance, repair, reconstruction or replacement of the Improvements as herein provided. IN WITNESS WHEREOF, Developer and the City have executed this PUD Agreement as of the date and year first above written. HOPKINS MAINSTREET. INe. By Its STATE OF ) )SS COUNTY OF ) The foregoing instrument was acknowledged before me this _ day of 2002. by , the . of Hopkins Mainstreet. Inc.. a corporation under the laws of the State of Minnesota, on behalf of the corporation. Notary Public . CITY OF HOPKINS By Its By Its STATE OF ) }SS COUNTY OF ) The foregoing instrument was acknowledged before me this _ day of 2002. 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 Publjc . c: hope ivil\Mainstreet. PUD . THIS INSTRUMENT WAS DRAFTED BY: Miller. Steiner & Curtiss. PA. 400 Wells Fargo Bank Building 10 II First Street South Hopkins. Minnesota 55343 . . c:hopcivil\Mainstreet. P UD -- -- - . MORTGAGEE'S CONSENT , a corporation. the mortgagee named in that certain mortgage, dated (the "Mortgage"). which Mortgage was recorded , as Hennepin County 's Document No. , hereby consents to the foregoing PUDlDevelopment Agreement and agrees that the Mortgage shall be subject and subordinate to said Planned Unit Development Agreement. By Its STATE OF ) )SS COUNTY OF ) The foregoing instrument was acknowledged before me this _ day of 2001, by the and , the . of . a corporation, under the laws of the State of Minnesota, On behalf of the corporation. Notary Public . c: hopcivi I\Mainstreet.P U D . EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY . . c: hopcivil\Ma instreet. PUD . EXHIBIT B DESCRIPTION OF ADDITIONAL RIGHT OF WAY TO BE GRANTED TO CITY . . e: hope ivil\Mainslreet. PU D