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CR2002-120 PUD Agreement-Mainstreet Lofts G \ T Y 0 r- ~ July 11, 2002 HOPKINS Council Report 02-120 . PLANNED UNIT DEVELOPMENT AGREEMENT- MAINSTREET LOFTS, LLC Proposed Action. Staff recommends the following motion: Move to approve the planned unit development CPUD) agreement to construct 47 condominiums and approximately ] 5,000 square feet of retail space for the Marketplace Lofts development on Mainstreet. Overview. As part of the overlay zoning to pun for the construction of the Marketplace Lofts development, Mainstreet Lofts, LLC, is required to sign a POO 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 pennit. Jerry Steiner of the City Attorney's office prepared the pun agreement. Representatives from Mainstreet Lofts, LLC, have reviewed the document and have found it acceptable. . Primal'V Issues to Consider. . What are the specifics of the PUD agreement? . Are there changes with the development? SUPPOI-ting Documents. . Agreement Tfh:fCU,~ Chrlc r~"'~ NanctJS. AndersoIl, Mep Planner Financial Impact: $ N/A Budgeted: Y/N Source: ~ Related Documents (CIP, ERP, etc.): Notes: . CR02-120 Page 2 . Primary Issues to Consider. . What are the specifics of the PUD agreement? The following are the main points addressed in the agreement: . Development improvements . Identification of and compliance with plans . Description of the other improvements that will be completed . The construction standards and procedures for the public improvements . Improvements to be transferred to City . Warranty . Additional conditions . 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 other requirements, assignment by developer, termination . Compliance with conditional use permit requirements . Are there changes with the development? . To the staff's knowledge, there are no changes to the development. Alternatives. 1. Recommend approval of the PUD agreement. By approving the PUD agreement, the Marketplace Lofts development will be able to be constructed as proposed. 2. Recommend denial of the PUD agreement. By denying the conditional use permit agreement, the Marketplace Lofts 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 I This PUDlDeve[opment Agreement (this "POO Agreement") is made and executed this _ day of .2002, by Mainstreet Lofts, LLC, a Minnesota limited liability company ("Developer"), and the City of Hopkins. a municipal corporation under the laws of Minnesota ("City" l. RECITALS 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 (werlay rezoning for the Real Property so that in addition to its current zoning classification of B-3. 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 Marketplace Addition (hereinafterreferred to as the "Plat") and for a Conditional Use Permit for the development of the Property by the construction of a four story building containing 47 condominium units and appro;(imate[y 14.000 square feet ofretail space (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 CQuncil of the City adopted Ordinance No. R76 approving the overlay zoning for the Real Property. Resolution 02-54 approving the Plat and Resolution 02-53 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 re:=,trictions hereof. Developer has agreed: i) to accept such agreements. terms. covenants. conditions and restrictions. ii) to execute this PUD Agreement. and iii) to record this PUD Agreement as a servitude upon the title to the Real Property. . hOl'ci \'i I\M arkctplaceLofts.PUD [ . D. Minn. Stat 462.358. Subd. 2a. and Section 565.0:2 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 planned unit development zoning. The City has required Developer to enter intn 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 im:orporMed in and made a part of this POO Agreement in their entirety. 2. Development Improvements. Developer shall construct. install, complete and pay for the work. labor. materials. facilities and improvements required for the development of the PIaL including all of the facilities and improvements described in Plans identitied 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 referred to as the "Improvements". The Improvements shall be completed in accordance with: i) the Plans detined and identified in Paragraph J of this PUD Agreement: and iii) all of the other terms of this POO 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 Pbt 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 thi" PUD Agreement, If any of the Plans are designated as "Preliminary". sLlch Plan(s) shall. subject to City approval. be modified. at Developer's expense. after the date of this PUD Agreement to be suitable for final construction purposes before commencement of any of the wnrk described or depicted in the Plan in question or issuance of a building permit fl.)r the work depicted in such Plan. At such time as a preliminary Plan has been replaced by a final Flan approved by the City. all references in this PUD Agreement to such Plan shall refer to the final Plan. In the event of any conOiet or inconsistency between the Plans and the provisions of this PUD Agreement, the . hopcivil\M arkclp laccLofls. PUD ::: . provisions of the Plans shall control. The Plans are: . . hopciv i I\M arketplaceLofts. PU D ~ .J . Description of Plan PlanA Final Plat prepared by Schoell & Madson, Inc., as approved by the City CounciL June 4, 2002. PlanB Preliminary Grading. Drainage Plan and Erosion Control Plan prepared by Schoell & Madson. Inc.. dated June 18. 20m. Plan C Preliminary Removal Plan prepared by Schoell & Madson, 1m:., dated June 18,2002. Plan D Preliminary Demolition Plan prepared by HKS Associates. dated May 7.2002. PlanE Preliminary Landscape Plan prepared by DJR Architecture, Inc.. dated April 25, 2002. PlanF Preliminary Utility Plans and Detail Sheet prepared by Schoell & Madson, Inc., dated June I R. 2002. 4. Additional Improyements. 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. natural 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 andlor this PUD Agreement. by Developer. at Developer's sole expense. provided the costs of design and construction of storm sewer and natural gas line relocation shall be paid as provided in Section . 4.6 of the Development Agreement between the City and Developer. dated April 16.2002. B. 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 PUD Agreement and any additional terms and conditions required by the Nine Mile Creek Watershed District. 5. 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 sllch 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, (dl benchmark network and (e) digital as-builts horch' i I\M arkclpl accLnfls. PUD 4 . 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. (iiiJ 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 Cih'. Upon completion of conSLTUction 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, including 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 tirst sentence of this Paragraph 7 are herein referred to as the "City Improvements". 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 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 of the City. which approval shall be granted if Developer is in full compliance with all of the terms. conditions. agreements. and . hopci vi I\M arkell' lace Lofts. PUD 5 . requirements of this PUD Agreement. 8. Warranty. 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 La 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 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 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 inClined before or after the date of this PUD Agreement. including. without limitation. traffic. development. fiscal. environmental, geotechnical. surveying. engineering. inspections or legal services. Such reimbursements from Developer . shall be due and payable within ten (\ 0) business day 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. 10. Other Governmental Approvals. Developer shall obtain. all required approvals and/or permits from the Minnesota Pollution Control Agency. Hennepin County. the Nine Mile 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 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 14thday after the date on which Developer acquires fee title La the Real Property. as evidenced by the date of the deed of conveyance transferring all of the Real Property to Developer and shall substantially complete construction of the Improvements within 24 months of commencement of construction. 12. Additional Conditions. Developer agrees that the Improvements shall be completed and the Real . hope!,,! I\M arkelpl aceLofts. PU D 6 . 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 construct. at Developer's sole expense, a curb cut and a temporary bituminous access to provide access to the parking lot of the adjacent Property at 15 Eighth Avenue South. in a location specified and approved by City Staff. If the owner of the Property at 15 Eighth A venue South notifies the City or Developer, in writing, prior to the date of issuance of the first certiticate of occupancy for any of the 47 condominium units. that such owner wishes to establish permanent access to the parking lot in the location of the temporary bituminous access to be installed by Developer. Developer shall remove the temporary bituminous access. if the same has been constructed. and construct a concrete curb cut and approach providing driveway access for the Property at 15 Eighth Avenue, all in accordance with a plan approved by the City. Developer shall notify the owner of the property at 15 Eighth A venue South of the provisions of this Paragraph Il.A., in VvTiting. within 21 days of the date of this Agreement. and shall simultaneously deliver a copy of SLlch notice to the City. For purposes of this Paragraph 12.A., the owner of the property at 15 Eighth A venue South shall be the party identified as such in the records of the . Hennepin County Property Tax Division. 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 he noted in the Declaration. and the Declaration shall be recorded prior (0 issLlance of any building permit for constructiun of any building or Improvements upon the Real Property. The Developer shall deliver a draft of the DeclarDtion 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. C. Upon approval of the DeclaratillTI by the City. the City shall execute a Certificate. in recordable form. certifying that the Dedamtion has been reviewed and approved by the City for compliance with the requirements of this PUD Agreement. D. A park dedication fee in an amount determined as specified in City Ordinance 500.75, Subd. 7 . shall be due and payable at the time of execution and release of the tinal Plat by the City. as a condition of such . hopcivil\M arketplaceLnfts.PUD 7 -- --.- -- -- ----- .--- . execution and delivery. E. The Developer will execute the required form of Access and Right-of-Entry Agreement in favor of the City relating to the maintenance and repair of storm drainage and storm viater retention improvements constructed on the Real Property that are wnnected to the municipal storm sewer system. Such Access and Right-of-Entry Agreement 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 repair and maintain the storm drainage and storm water retention improvements in perpetuity. F. Developer shall install. at Developer's expense, benches and trash receptacles complying with the City's streetscape standards along Mainstreet. Seventh A venue and Eighth A venue. adjacent to the Real Property. Developer shall also install a one-foot wide strip of washed aggregate concrete or another material acceptable to City Staff immediately south of the north property line of the Real Property to delineate the south right of way line of Mainstreet. 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. Developer shall submit a signage plan. which shall designate a "No Parking ~ Loading Area .. and shall be subject to approval by City Staff. The drop-off area shown on the Site Plan must be signed for one-way traffic or have the east entrance widened. I. 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 Schoell & Madson. Inc. and DJR Architecture. Inc. J. No building permit shall be issued by the City for the construction of any building upon the Real Property until all of the Improvements. with the exception of any landscaping, curb. gutter or paving improvements constituting part of the Improvements. have been substantially l:ompleted in accordance with the Plans and the requirements of this POD Agreement. No final Certificate of Occupancy shall be issued for any residence or commercial space constructed upon the Real Property. until all of the Improvements, with the exception of the final lift of asphalt and any landscaping clJnstituting a part of the . hopci yi 1\.1\1 arketp lace Lo rts. PU D 8 . Improvements. have been substantially completed in compliance with the requirements of the Plans and this POO 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 as shown on the final Plat. The permanent public drainage and utility easements shall include a 33 foot wide easement along the south property line of the Real Property and an easement between the north line of the Real Property and the north line of the building to be constructed on the Real Property by Developer. Such easements shall be established either by dedication in the Plat or by conveyance to the City from Developer. M. Developer shall obtain a parking easement over the adjacent land located to the south of the Real Property . upon terms and conditions substantially as stated in the letter from Cornerstone Group to James Kerrigan. dated May 14. 2002. The proposed Easement Agreement or Deed establishing such parking easement shall be delivered to City Staff and the City Attorney prior to being executed or recorded. and the terms and conditions of such Easement Agreement or Deed shall be acceptable to City Staff and the City Attorney. The Developer shall also deliver to the City Attorney current evidence of title for the land tn be encumbered by the parking easement. If Developer fails to obtain the parking easement. or should the parking easement be terminated in the future. Developer shall have a parking study wmpleted. at Developer"s expense, in accordance with a scope of work acceptable to and approved by City Staff. addressing the parking demand for the condominium and commercial development to be constructed by Developer on the Real Property and alternatives for meeting such parking demand or any parking deficiencies, and the Developer shall thereafter implement such reasonable parking requirements and improvements as shall be deemed appropriate by the City. N. As provided in Paragraph 22 of this PUD Agreement. all paved surfaces and utilities constructed within the Real Property including all of the Improvements. other than the City Improvements. shall be private. . hope iyil\M arketplacd1>fts. PUD 9 -- -- - - --- -- - - .--- . 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. 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. Q. Developer shall construct a trash enclosure in a location approved by City Staff. R. Any soil retaining system installed by Developer within the right of way of any public street must be temporary in nature and must be removed after completion of construction, all at Developer's sole expense. S. Developer or Developer's project manager shall coordinate relocation of the natural gas main and relocation of other utilities with the public utility companies providing such utility services, and Developer shall dedicate or grant easements for such utilities as provided in Paragraph 12.L T. All City water meters shall be located in a designated meter room vault accessible and designed and . installed in such n manner that they can be read by the City's radio read system. V. All parking lot lighting and street lighting to he installed by Developer mllst be shown on the final Plans. The design nnd location of such lighting must be approved by and acceptable to City Staff. V. Developer shall install electrical bollards over the outlets at the tree grute locations along the right of way of Mainstreet. Eighth Avenue and Seventh Avenue, as directed by the City'~ Public Works Department. If any electrical outlets. wiring or conduits are removed or damaged during construction. Developer shall replace or repair the same to the satisfaction ofthe City's Public Works Department. W. Developer shall allow the businesses displaced by the redevelopment of the Real Property to place a sign on the Real Property identifying the new locations to which sllch displaced businesses have moved. Such sign shall be placed at the sole expense of the displaced businesses on the construction fence erected by Developer or in another location that will not interfere with Developer's construction activities and shall be removed at such time as the construction fence is removed or, if not placed on the constrw.:tion fence. upon completion of the Improvements. e h0pcivil\M arkctp lac.:Lofts. PlI 0 10 --..-- -- -~--- -- ---- -- . X. The Developer shall otherwise comply with all conditions stated in City Council Resolutions R 02-52. 02-53, R O~-54 and R 02-55: and with the requirements of any applicable statutes. ordinances. codes or regulations, including the City's Engineering Guidelines. 13. Compliance With Other Requirements, Assienment bv 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 estahlished 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 I 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 abil ity of the proposed Assignee in the development of projects ,imilar [Q the project . desL:ribed in the Plans: ii) Evidence of the financial ability of the proposed Assignee to peltorm the Developer's obligations under and comply with the requirements of this PUD Agreement: and 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, (0 the City. The terms. conditions and restrictions established by Paragraph 22 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 u!,.'Teements. warranties. terms. CllVenants. conditions and restrictions in accordance with their terms and has discharged all of the Developer's obligations under this PUD Agreement. The agreements. terms. covenants. conditions and restrictillns established by this PUD Agreement. other than those described in Paragraph 22 of this POO Agreement ma y be terminated and released at any time. in whole or in part. by the City by means of a written Release, in recordable form. duly . hope i vil\MarketplnceLofts. PU D II . executed by the City, pwvided 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 POO Agreement. the City shall execute and deliver to Developer a certificate. in recordable f0I111. certifying as to Developer's compliance with the provisions of this POO Agreement applicable to construction of the elty Improvements: and b) upon Developer's full compliance with the remaining agreements. wan'anties, terms. covenants. conditions and restrictions of this PUD Agreement other than those described in Paragraph n. 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 "vith such agreements, warranties. terms. covenants. conditions and restrictions. 14. Security and Claims. To guaranty Developer's compliance with the terms of this PUD Agreement. payment of the cost of all 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") issued by a bank or surety reasonably acceptable to the City: A. The Security for the landscaping improvements comprising: a part 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 125 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 remaining Improvements. other than landscaping improvements. shall be delivered to the City before commencement of construction of such Improvements or issuance of a permit by the City permitting commencement of sLlch construction. The amount of such Security for the remaining Improvements. other than landscaping improvements. shall equal 100 percent of the cost of the Improvements as established by: i) the actual cost of completion of construction of such Improvements as stated in the written contracts or subcontracts fur their construction and installation with the contractors or subcontractors retained by Developer or Devel0per's general contractor (which written contracts or subcuntracts ~hall be delivered to the City l. or ii) a "",ritten estimate from Developer's Engineer approved by the City Engineer. The Security shall be conditioned upon Developer's completion of the Improvements for which the Security is provided, peli'ormance of Developer's wananty under Paragraph 8 of this PUD Agreement including replacement of any defective or nonconforming Improvements and payment of the entire cost thereof. and the form and content of the Security . hopei"i 1\1\1arketpbceLolh. PU D 12 . shall be subject to the reasonable approval of the City. Developer shall maintain the Security in effect for a term ending two (2} years after the date on which Developer has substantially completed the 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 original written evidence. in form reasonably acceptable to the City. extending the term of the Security for successive 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 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 ( I ) year atter 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 (] 0) 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 ( ] 0) 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 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 [5 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 fmm laborers. materialmen or others contributing to the Improvements 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 . hopci \. i 1\1\1 arketp lace Lofts. PUD I' _i -- --.-------- .-.------- - ----.- . assert claims against the City, the Improvements or the real property on which the 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 n, 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 agenrs. representatives and employees harmless from and against all costs. damages and liabilities. including reasonable attorneys' fees and Court costs, resulting from or incUlTed in connection with Developer's failure to comply with the terms. covenants, conditions and requirements of this PUD Agreement. 15. Enforcement of PUD Aereement. 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 relief, 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 construction of the Improvements. b. All costs and expenses incuned by the City in curing any other default by Developer in the performance of any of the terms, covenants and conditions of this PUD Agreement. c. All reasonable costs, fees and expenses for engineering. legal and administrative expenses incurred by the City in enforcing Developer's peIformance of this 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 gi ve Developer written notice and a reasonable opportunity to cure any default by Developer in the performance of its obligations under this PUD Agreement before incuning third-party costs and expenses that are recoverable from Developer under Subparagraphs a-d of this Paragraph 15. pwvided 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, . hupci \ i I\M arkelpl ac\.'Lofts .PU D 14 ....---.. . and of an extraordinary character and that, in the event Developer violates or fails or refuses to pelform any term. condition or restriction established by this 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 PUD Agreement. the City. may. at its option. initiate and prosecute an action to specifically enforce the performance of the terms. conditions and restrictiuns 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 incuned in the enforcement of the terms. conditions and restrictions of this PUD 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 PUD 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: Mainstreet Lofts. LLC . 7661 Bush Lake Dri ve Bloomington, MN 5543R To City: City of Hopkins 10ro First Street South Hopkins. MN 55343 Attention: City Manager or to such other address as either parry, 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. Seyera bility. Invalidation of any of the terms. conditions. provisions or restrictions of this 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, Headim!s. The headings and captions at the beginnings of paragraphs of this PUD Agreement are for convenience of reference only and shall not int1uence 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. . 20. Construction. This PUD Agreement shall be construed and enforced in accordance with the laws of the hurdv i I\M arketpl aceLorts. PU D 15 . State of Minnesota. 21. Evidence of Title and Recordation of PUD A2reement. Prior to the execution of this PUD Agreement Developer shall provide the City with 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 PUD 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. or any part thereof. The Improvements which are to be the sole property of the Developer. and its successors. 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, snowplowing, snow removaL sweeping and resurfacing l. restoration and replacement of any private street. driveway or parking improvements 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 i nd irectl y . the design. construction, use, maintenance. repair. reconstruction or replacement uf 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 substitutiuns therefor. including. but not limited to. claims for injury to persom or property. The recordation of this PUD Agreement shall constitute notice to all successors 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. . hopcivil\Markctpl ace Lofts.PU D 16 . IN WITNESS WHEREOF. Developer and the City have executed th is PUD Agreement as of the date and year first above written. MAINSTREET LOFTS, LLC By Its STATE OF ) )SS COUNTY OF ) The foregoing instrument was acknowledged before me this _ day of , 2002, by . the , of Mainstreet Lofts. LLC. a limited liability company under the laws of the State of Minnesota, on behalf of the corporation. Notary Public CITY OF HOPKINS By Its . By Its STATE OF ) ISS COUNTY OF f 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 Public . hopc i vi I\MJrkctpl JccLol"ts. PllD 17 . THIS INSTRUMENT WAS DRAFTED BY: Miller. Steiner & Curtiss. P.A. 400 Wells Fargo Bank Building 1011 First Street South Hopkins. Minnesota 55343 . . hopci \' j l\Markelp laccL"rlsB LPU D IX ------