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CR2003-124 CUP Agreement EDCO 7 i: :i ~I' ~ ~~ . . . / CITY OF \ Date: August 14, 2003 I~ I HOPKINS Council Report 2003-124 CONDITIONAL USE PERMIT AGREEMENT - EDCO Proposed Action Staff recommends adoption of the following motion: Move to authorize the execution of the Conditional Use Permit Aareement between the EDCO and the City of Hopkins as it relates to the issuance of a conditional use permit to construct an addition to the existina buildina at 900 Second Stree N.E. Overview With this motion the Council would authorize the execution a Conditional Use Permit (CUP) Agreement with EDCO in conjunction with a conditional use permit, if issued, for the expansion of EDCO's building at 900 Second Street N.E. The execution of a CUP Agreement would be a condition of approval for the Conditional Use Permit as indicated in Council Report 2003-116. In addition to the general conditions placed on the project by the City, the CUP Agreement passes on to EDCO all of the responsibilities accepted by the City as part of the Easement Agreement with the HCRRA. The Easement Agreement (Council Report 2003-123) details the responsibilities of the City with regard to constructing and maintaining an emergency access road on the HCRRA right-of~way adjacent to the EDCO property, which is necessary for emergency vehicle access after the building is expanded. City Attorney Jerry Steiner has negotiated and reviewed the attached CUP agreement with EDCO in cooperation with City staff. Upon authorization, staff will gather the necessary supporting documents/attachments as indicated in the CUP Agreement and continue to work with the EDCO in executing the agreement. Primary Issues to Consider . What are the major elements of the Conditional Use Permit Agreement? Supportina Information . Memo from City Attorney Jerry Steiner . Conditional Use Permit Agreement between the City and EDCO . See attachments in Council Report 2003-116, Conditional Use Permit-EDCO .c~a~ Steven J. ah er Assistant to the City Manager Financial Impact: $ Budgeted: Related Documents (CIP, ERP, etc.): Y/N Source: j) ~ j '. . Council Report 2003-124 Page 2 Analvsis of Primary Issues · What are the major elements of the Conditional Use Permit Agreement? o The CUP Agreement provides that EDCO "agrees to assume, perform and comply with all of the City's obligations under the Easement Agreement, and to protect, indemnify and hold the City harmless from and against all costs, expenses, liabilities, obligations, undertakings, claims and damages arising out of or related to the Easement Agreement." o EDce is to complete the access drive and drainage facilities according to the City's requirements and the terms of the Easement Agreement and to bear all costs for future maintenance and repair of the access drive and drainage facilities. o The CUP Agreement also specifically provides "the City shall be entitled to levy a special assessment against the (EDCO) property. . . in accordance with Minn. Stat. Chapter 429" in the event the City incurs any liability under the Easement Agreement and EDCO fails to indemnify the City from that liability o EDCO is to obtain and dedicate to the City necessary drainage easement for the Living Waters Church property and, also, to construct an underground storm sewer line connecting to the public storm sewer in Second Street Northeast and to dedicate to the City a 20 foot wide storm sewer easement centered on this new underground storm sewer line to be constructed by EDCO. . o EDCO must to reimburse the City for all of its out-of-pocket costs related to this project. Alternatives. 1. Authorize execution of the Conditional Use Permit Agreement to as it relates to the CUP for the EDCe project 2. Decline to enter into the Conditional Use Permit Agreement with EDCO. 3. Continue for further information. '. r .i }. 1 . MILLER, STEINER & CURTISS, P.A. ATTORNEYS AT LAW JERRE A. MILLER 400 WELLS FARGO BANK BUILDING JEREMY S. STEINER* 1011 FIRST STREET SOUTH WYNN CURTISS HOPKINS, MINNESOTA 55343 KIRSTEN A. HOLSETH . Real Property Law Specialist. certified by the Minnesota State Bar Association 952-938-7635 FAX 952-938-7670 MEMORANDUM DATE:August 14,2003 TO: The Hon. Mayor and City Council Members FROM: Jeremy Steiner RE: Edco Expansion Project I am submitting this Memo at the request of City Staff to summarize certain of the terms and conditions of the CUP Agreement for the Edco Products expansion project and the Easement Agreement between the City and the Hennepin County Regional Railroad Authority ("HCRRA") that will be entered into in order to permit construction of the Edco expansion project. The CUP Agreement includes the usual provisions requiring Edco, as Developer, to complete all of the improvements that are to be constructed for the expansion project as shown in the site plan, landscaping plan, grading and drainage plan and utility plan that have been submitted to the City and reviewed by City Staff. However, as a result ofthe variance allowing Edco to construct the building addition with no setback along the southerly property line, an emergency vehicle access drive ("Access Drive") and the stonn water management and drainage improvements ("Drainage Facilities") must be constructed on the adjacent right-of-way property owned by the HCRRA. To accomplish this, the City will enter into an Easement Agreement with the HCRRA allowing construction of the Access Drive and Drainage Facilities on the HCRRA right of way. Under Paragraphs 6.A. and 6.B.i ofthe CUP Agreement, Edco will agree to complete all of the Access Drive improvements and the Drainage Facilities to be constructed on the HCRRA property under the Easement Agreement and will also agree to hold the City harmless from liability to the HCRRA under the Easement Agreement. The substantive provisions of the Easement Agreement and Paragraph 6 of the CUP Agreement are summarized as follows: 1. The Easement Agreement grants the City a non-exclusive easement over the northerly 25 feet of the HCRRA right of way for the purpose of constructing and maintaining the Access Drive and the Drainage Facilities. Paragraph 12 of the Easement Agreement provides the Easement will terminate ifthe Access Drive and the Drainage Facilities are not completed within 180 days after the Easement Agreement is executed, subject to extension for delays due to inclement weather or other circumstances beyond the control of the party performing that work. Paragraph 2 of the Easement Agreement requires the City to obtain prior approval from the HCRRA of the plans for construction of the Access . i' :; 't ; . Drive and Drainage Facilities. Paragraph 1 requires the City to relocate or modify the Access Drive or Drainage Facilities upon 120 days' prior written notice from the HCRRA in the event the HCRRA's use of its right of way is such that modification or relocation ofthe Access Drive or Drainage Facilities is necessary. Paragraph 6 provides that the City is obligated to indemnify, defend and hold the HCRRA harmless from "all liability, loss, damage or expense" resulting from the use of the easement for the Access Drive and Drainage Facilities. Paragraph 11 ofthe Easement Agreement states the City is entitled to enter into a separate agreement with the owner of the Edco property "allowing the owner of the (Edco property) to use the easement for construction, maintenance, repair and use of the Drainage Facilities and the (Access Drive) in accordance with the terms of the Easement Agreement." By entering into the Easement Agreement with the HCRRA, the City will assume all of these obligations to the HCRRA. 2. Paragraphs 6.A. and B.i of the CUP Agreement, in turn, provide that Edco "agrees to assume, perform and comply with all of the City's obligations under the Easement Agreement, and to protect, indemnify and hold the City harmless from and against all costs, expenses, liabilities, obligations, undertakings, claims and damages arising out of or related to the Easement Agreement." Paragraphs 6.A. and 6.B.i further obligate Edco to complete the Access Drive and Drainage Facilities according to the City's requirements and the terms of the Easement Agreement and to bear all costs for future maintenance and repair of the Access Drive and Drainage Facilities. The intent of these provisions is that Edco will assume full responsibility for all ofthe City's obligations to the HCRRA under the Easement Agreement and will indemnify the City from any liability to the HCRRA that would arise under the Easement Agreement. Paragraph 15 of the CUP Agreement also specifically provides "the City shall be entitled to levy a special assessment against the (Edco) property. . . in accordance with Minn. Stat. Chapter 429" in the event the City incurs any liability under the Easement Agreement and Edco fails to indemnify the City from that liability. While the City will assume meaningful liability exposure by entering into the Easement Agreement with the HCRRA, the provisions of Paragraphs 6.A. and B.i. of the CUP Agreement will provide the City with protection from this liability to the extent Edco and subsequent owners of the Edco property have resources sufficient to honor the indemnity obligation to the City or the City is able to recover liabilities that it incurs to the HCRRA by means of a special assessment levied against the Edco property. In evaluating its approval of the Easement Agreement and CUP Agreement, the City Council should consider whether the indemnity and special assessment provisions of the CUP Agreement provide adequate protection from the liabilities that will be assumed by the City under the Easement Agreement. 3. Paragraphs 6.B.ii and iii of the CUP Agreement also require Edco to obtain and dedicate to the City certain easements that will be required for the purpose of managing stonn water from the Edeo property and the adjacent property to the east owned by Living Waters Church. These paragraphs require Edco to obtain and dedicate to the City a drainage easement for stonn water impoundment in the southwest comer of the Living . c:hopcivil\memo.mayor - 2 - i' .' f J . . Waters Church property and, also, to construct an underground storm sewer line connecting to the public storm sewer in Second Street Northeast and to dedicate to the City a 20 foot wide storm sewer easement centered on this new underground storm sewer line to be constructed by Edco. All of the Drainage Facilities and improvements to be constructed by Edco are to be completed in compliance with all applicable ordinances, codes, rules and regulations of the City of Hopkins and the Minnehaha Creek Watershed District. 4. Finally, Paragraph 9 of the CUP Agreement requires Edco to reimburse the City for all of its out-of-pocket costs. Paragraph 14 requires Edco to provide the City with a letter of credit or other acceptable form of security equal to the actual cost to complete the Access Drive and Drainage Facilities for the purpose of securing Edco's agreement to complete those improvements and facilities. JSS JSS/drs l / c:hopcivil\memo.mayor - 3 - i' .,' . . . . , Miller, Steiner &, Curtiss, P.A. CONDITIONAL USE PERMIT AGREEMENT This Conditional Use Permit Agreement (this "Agreement") is made and executed this day of , 2003, by Edco Products, Incorporated, a Minnesota corporation ("Developer"), in favor of and for the benefit of the City of Hopkins, Minnesota ("City"). RECITALS A. Developer is the fee owner of real property located in the City of Hopkins, Hennepin County, State of Minnesota, legally described in Exhibit A attached hereto and incorporated herein by reference. The real property described in Exhibit A hereto is hereinafter referred to as the "Real Property". B. Developer applied to the City for a Conditional Use Permit to construct and operate an addition to its manufacturing and warehouse facility and related improvements (the "Project") on the Real Property in accordance with the Plans identified in Paragraph 3 of this Agreement. C. On , 2003, the City Council of the City adopted its Resolution No. 2003-_ approving Conditional Use Permit No. CUP 03-_ ("Conditional Use Permit") for the construction of the Project on the Real Property, subject to the terms, conditions and restrictions ? . I' l' . stated in this Agreement, Resolution No. 2003-_ and in the Conditional Use Permit. As a condition of the approval of the Conditional Use Permit, the City has required Developer to execute and record this Agreement. Developer has agreed: i) to accept such tenns, conditions and restrictions, ii) to execute this Agreement, and iii) to record this Agreement as a servitude upon the title to the Real Property. D. Subdivision 4 of Section 525.13 of the Hopkins Zoning Ordinance provid($ that the City may require an applicant for a Conditional Use Permit to enter into a Conditional Use Pennit Agreement establishing the terms, conditions and restrictions imposed upon approval ofa Conditional Use Pennit. This Agreement is entered into by the City and Developerpursuant to Subdivision 4 of Section 525.13 of the Hopkins Zoning Ordinance. NOW, THEREFORE, in consideration of the foregoing Recitals and the approval and issuance of the Conditional Use Permit, Developer agrees to the tenns and conditions stated in this Agreement and declares that all of the Real Property and the Project shall be held, transferred, leased, occupied, constructed, used and developed subject to the following agreements, terms, covenants, conditions and restrictions: 1. Recitals Incorporated. Recital Paragraphs A through D, above, are incorporated in and made a part of this Agreement. 2. Construction of Improvements. Developer shall construct, install and pay for all of the facilities and improvements constituting a part of the Project, including those depicted in the Plans, which facilities and improvements are herein referred to as the "Improvements." . The Improvements include all of the work and improvements described in Paragraph 6 of this Agreement. The Improvements shall be completed in accordance with: i) the Plans defined and identified in Paragraph 3 of this Agreement; and ii) all ofthe other tenns of this Agreement. c:hopcivil\CondUse.Edco - 2 - . . '. l' ~ t ~' 3. Identification of Plans. The Project shall be developed and the Improvements constructed and completed in accordance with the following plans which are hereinafter collectively referred to as the "Plans". The Plans shall not be attached to this Agreement. If any of the Plans are designated as "Preliminary", such Planes) shall, subject to City approval, be modified, at Developer's expense, after the date of this 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 Pennit for the Project. At such time as a Preliminary Plan has been replaced by a final Plan approved by the City, all references in this 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 Agreement, the provisions of this Agreement shall control. The Plans are: Description of Plans Plan A Site Plan prepared by KMR Architects, Ltd., dated , 2003. Plan B , dated Landscaping Plan prepared by ,2003. Plan C Grading and Drainage Plan prepared by dated , 2003. Plan D Utility Plan prepared by 2003. , dated [MODIFY DESCRIPTION OF PLANS A-D TO CORRESPOND TO ACTUAL PLANS SUBMITTED AND APPROVED BY CITY. IF THE GRADING AND DRAINAGE PLAN DOES NOT INCLUDE PLANS FOR STORM WATER DETENTION FACILITY, THE PLAN FOR THAT FACILITY SHOULD BE. ADDED. ADD DESCRIPTION OF ANY OTHER PLANS APPROVED AS PART OF CUP APPROV AL.l 4. Construction Standards and Procedures. The Improvements shall be constructed and installed in accordance with City standards, codes, regulations and ordinances. c:hopcivil\CondUse.Edco - 3 - l> . I- f . In connection with the construction of the Improvements, Developer shall restore all City streets, sidewalks, public and private 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. . 5. 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 the date of completion of the Improvements, as evidenced by issuance of a Certificate of Occupancy for the Project. 6. Additional Conditions and Requirements. Developer agrees that the Conditional Use Permit has been issued subject to and that Developer shall perform and satisfy the following conditions and requirements: A; Emergency Vehicle Access. As a condition of approval of the Conditional Use Pennit and the setback variance described in Paragraph 6.C., below, an easement is to be obtained from ,the Hennepin County Regional Railroad Authority (HCRRA) for the purpose of constructing and maintaining a fire lane and emergency vehicle access dri~e ("Access Drive") over an easement area located immediately to the south of the Project on land owned by the HCRRA. The City has entered into or shall enter into an Easement Agreement with the HCRRA (the "Easement Agreement") for the purpose of granting the City an easement to construct and maintain the Access Drive, which shall allow Developer and subsequent owners of the Real Property to use the easement granted thereby for construction, maintenance and repair of the Access Drive according to the terms of the Easement Agreement. A copy of the Easement Agreement is attached c:hopcivil\CondUse.Edco - 4 - . hereto as Exhibit B. Developer acknowledges it has reviewed is familiar with and accepts all of the terms, covenants and conditions of the Easement Agreement. Further, Developer ~grees to assume, perform and comply with all of the City's obligations under the Easement Agreement, and to protect, indemnify and hold the City harmless from and against any and all costs, expenses, liabilities, obligations, undertakings, claims and damages arising out of or related to the Easement Agreement, including reasonable attorney's fees and costs incurred by the City in any dispute related to the Easement Agreement. Among the obligations assumed by Developer is the obligation to modify or relocate the Access Drive, if and when required, according to the terms of the Easement Agreement and' at Developer's sole expense. All of Developer's undertakings, agreements and obligations to the City under this Paragraph 6.A. shall run with the title to the Real Property and apply to and bind Developer and each and every subsequent owner of any part of the Real Property and their respective successors and assigns, and shall operate as a covenant passing with the title to the Real Property and any part thereof. Each subsequent owner of the Real Property, by accepting a conveyance of all or any part of the Real Property, shall be deemed to have acknowledged such owner's assumption of the obligations, undertakings and agreements of the Developer stated in this Paragraph 6.A. Developer shall be solely responsible for and shall, prior to issuance by the City of a Certificate of Occupancy for the Project, complete construction of the Access Drive and all grading, landscaping and other improvements to be constructed within the easement area granted by the Easement Agreement as shown in the Plans and at Developer's sole expense. The Plans shall depict and specify all of the Access Drive, grading, landscaping and other improvements to be constructed by Devel~per within such easement. . c:hopcivil\CondUse.Edco - 5 - ~ . . . . Developer shall perform all construction and other activities, in full compliance with the terms, covenants and conditions of this Agreement and' the Easeme~t Agreement at Developer's sole expense. Developer shall also maintain the Access Drive, including, but not limited to, removal of snow, ice and vegetation, at all times and at Developer's sole expense in a condition suitable for emergency vehicle access and will affect such future repairs or modifications to the Access Drive as are reasonably required by the City in the future. It is a condition of this Agreement and of the Conditional Use Permit that Developer maintain the Access Drive at all times in compliance with all applicable statutes, ordinances, rules and regulations. B. Storm Drainage Easements. The following easements for storm drainage purposes shall also be acquired in connection with the Project: i. , ' As a condition of approval of the Conditional Use Permit and the setback variance described in Paragraph 6.C., below, an easement is to be obtained from the Hennepin County Regional Railroad Authority (HCRRA) for the purpose of storm water retention and' drainage and for constructing storm water retention and drainage facilities ("Drainage Facilities") within an easement area described in the Easement Agreement. The Easement Agreement shall grant the City an easement for the purpose of constructing and maintaining the Drainage Facilities and shall allow Developer and subsequent owners of the Real Property to use the easement granted thereby for construction, maintenance and' repair of the Drainage Facilities according to the terms of the Easement Agreement.. Developer acknowledges it has reviewed, is familiar with and accepts all of the terms, covenants and conditions of the Easement Agreement relating to the construction and maintenance of the Drainage Facilities. Further, Developer agrees to assum~andperform all of the City's obligations under the Easement Agreement, and to protect, indemnify and hold the City harmless from and against any and all costs, expenses, liabilities, obligations, claims and damages arising out of or related to the Easement Agreement, including reasonable attorney's fees and costs incurred by the City in any dispute related to the. Easement Agreement. Among the obligations assumed by Developer is the obligation to modify or relocate the Drainage Facilities, if and when required, according to the , , terms of the Easement Agreement and at Developer's sole expense. All of Developer's undertakings, agreements and obligations to the City under c:hopcivil\CondUse.Edco - 6 - > . . . c:hopciviI\CondUse.Edco this Paragraph 6.B. shall run with the title to the Real Property and apply to and bind Developer and each and every subsequent owner of any part of the Real Property and their respective successors and assigns, and shall operate as a covenant passing with the title to the Real Property and any part thereof. Each subsequent owner of the Real Property, by accepting a conveyance of all or any part of the Real Property, shall be deemed to have acknowledged such owner's assumption of the obligations, undertakings and agreements of the Developer stated in this Paragraph 6.B. Developer shall be solely responsible for and shall complete construction of the Drainage Facilities and all grading, landscaping and other improvements to be constructed within the easement area established by the Easement Agreement as shown in the Plans and at Developer's sole expense. The Plans shall depict and specify all of the Drainage Facilities, grading, landscaping and other improvements to be constructed by Developer within the Easement Agreement area. Developer shall obtain all required permits and approvals from the Minnehaha Creek Watershed District for the construction of the Drainage Facilities. Developer shall perform all construction and other activities in full compliance with the terms, covenants and conditions of the Easement Agreement at Developer's sole expense. Developer shall also maintain the Drainage Facilities at all times and at Developer's sole expense in good repair and will effect such future repairs. or modifications to the Drainage Improvements as are reasonably required by the City in the future. It is a condition of this Agreement and of the Conditional Use Permit that Developer maintain the Drainage Facilities at all times in compliance with all applicable statutes, ordinances, rules and regulations. ii. Developer shall also grant to the City and, if necessary to maintain the required 20 foot width, obtain from the owner of the adjacent property to the east, at Developer's sole expense, a 20 foot wide permanent public drainage easement, the center line of which shall be the underground storm sewer line to be installed by Developer as depicted in the Plans. Developer shall construct within such public drainage easement, at Developer's sole expense, the underground stonn drainage improvements required to provide storm water drainage to the underground storm sewer facilities located in the right of way of Second Street Northeast. The design and specifications for such underground storm drainage improvements shall be shown in the Plans and shall be subject to approval by the City's Engineering Staff. The underground storm drainage improvements to be installed by Developer within such public drainage easement shall at all times be maintained by Developer, at Developer's sole expense, in good condition and state of repair and free from obstructions. The construction of the storm water drainage facilities and improvements by Developer shall be in compliance with all of the ordinances, codes, rules and regulations of the City, the Minnehaha Creek Watershed District ("MCWD") and any other governmental agency - 7 - . . . having jurisdiction over such construction. Within sixty (60) days of completion of such underground storm drainage improvements, Developer shall provide the City with accurate as-built' maps or drawings certifying the location of such underground storm drainage facilities in a paper format and also in a format compatible and consistent with the City's electronic mapping system or including all data reasonably required to allow the City to incorporate such underground storm drainage improvements in the City's electronic mapping system. iii. Developer shall also obtain from the owner of the adjacent property to the east, at Developer's sole expense, a pennanent public easement for drainage purposes to accommodate that part of the Drainage Facilities that will be located on such adjacent property to the east of the Real Property, as described in the final Plans for the Project. The area to be included within such public drainage easement shall be that part of the southwest corner of the adjacent property to the east of the Real Property that is located below the 918.5 foot contour. C. Setback Variance. Prior to the issuance of a Building Permit for the Project the Developer shall comply with and satisfy all terms, conditions and requirements of the setback variance granted to Developer by City Council Resolution No. 2003-_. D. Storm Water Management Plan. Prior to issuance of a Building Permit for the Project, Developer shall submit a Storm Water Management Plan to the City together with such other evidence as the City shall reasonably require demonstrating that the' impervious surface to be constructed by Developer complies with the standards and requirements of Section 546 of the Hopkins City Zoning Ordinance. The Storm Water Management Plan must be approved by and acceptable to the City Engineer. The Developer shall also comply with all requirements of the approved Storm Water Management Plan and execute and deliver to the City and/or the MCWD an Access Agreement in the form required by the City for access to and maintenance of storm water management improvements to be constructed by Developer. Developer acknowledges Developer shall be responsible to perform all maintenance of storm water drainage c:hopcivil\CondUse,Edco - 8 - . . facilities and improvements specified in the approved Storm Water Management Plan. Developer shall also, prior to issuance of a Building Permit for the Project, obtain approval from the MCWD of the Storm Water Management Plan for the Project. If required by the City, Developer shall also obtain a written opinion from a qualified engineer stating that construction of the Project and the drainage improvements to be completed by Developer will not increase the potential for flooding on the adjacent property located to the east ofthe Real Property. 7. Acceptance of Ownership of Public Improvements. [This paragraph has been' intentionally omitted.] 8. Warranty. All trees and landscaping plantings constituting part of the Improvements shall be warranted for two (2) growing seasons from the date of planting and shall be repaired or replaced by Developer at Developer's sole expense if found to be defective within said two (2) growing seasons. 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 Agreement and the administration, performance and enforcement of this Agreement and the Conditional Use Permit. Such out-of-pocket costs to be reimbursed by Developer shall include, but are not limited to, all fees due to consultants retained by City, whether incurred before or after the date of this Agreement, including, without limitation, traffic, development, fiscal, noise level consultants, environmental, geotechnical, surveying, engineering, inspections or legal services. 10. On-Site Improvements. (Intentionally Omitted) c:hopcivil\CondUse.Edco - 9 - .. . . . 11. Other Governmental Approvals. Developer shall obtain any required approvals and/or permits from such agencies as the Minnesota Pollution Control Agency, Minnesota Department of Transportation, Hennepin County, the MCWD and any other governmental authorities whose approval is required for the construction of the Improvements and operation of the Project on the Real Property. Developer shall maintain all such required permits and comply therewith at all times. 12. Time of Performance. Developer acknowledges it has been advised that Subdivision 7 of Section 525.13 of the Hopkins City Code of Ordinances requires that Developer's use of the Project be in effect within one (1) year after the date of issuance of the Conditional Use Permit, subject to extension of such one (1) year period, in accordance with said Subdivision 7. 13. Compliance With Conditional Use Permit Requirements. . Developer agrees that it shall complete the Improvements in compliance with this Agreement, the Conditional Use Permit and the provisions of the City's Code of Ordinances, including, but not limited to Hopkins City Ordinance Section 525.13. The terms, conditions and restrictions established by this Agreement and the Conditional Use Permit shall run with the title to the Real Property and apply to and bind the Developer and each and every subsequent owner of any part of the Real Property and their respective successors and assigns, and shall operate as a covenant passing with the title to the Real Property and any part thereof. All of said terms, conditions and restrictions are imposed upon the Real Property as a servitude in favor of the City of Hopkins, Minnesota, for its benefit only. The terms, conditions and restrictions established by this Agreement are perpetual in duration, except as may be specifically otherwise provided in this Agreement. The terms, conditions and restrictions established by this Agreement may, however, be terminated and c:hopciviI\CondUse.Edco - 1 0 - 7 . released at any time, in whole or in part, by the City by means of a written Release, in recordable form, duly executed by the City. . 14. Security and Claims. As security for Developer's warranty of landscaping improvements and compliance with the terms of Paragraphs 6.A. and 6.B. of this Agreement related to construction of the Access Drive and other improvements within the easement area for the Easement Agreement (collectively "Access Improvements") and the Drainage Facilities and other improvements within the easement area of the Drainage Easement, Developer shall deliver to the City a Letter of Credit and/or surety bond acceptable to and in favor of the City (the "Security") issued by a bank or surety reasonably acceptable to the City. The Security for the landscaping improvements comprising. a part of the Improvements shall be delivered to the City before issuance of a Certificate of Occupancy for the Project. The amount of such Security for landscaping improvements shall be equal to 150 percent of the estimated cost of the landscaping improvements, as established by a written estimate submitted by Developer's landscaping contractor. The Security for the Access Improvements and Drainage Facilities shall be delivered to the City before commencement of construction of the Improvements or issuance of a permit by the City permitting commencement of such construction. The amount of such Security for the Access Improvements and Drainage Facilities shall equal 100 percent of the cost of the Access Improvements and Drainage Facilities, as established by: i) the actual cost of completion of construction of the Access Improvements and Drainage Facilities as stated in the written contracts or subcontracts for their construction and installation with the contractors or subcontractors retained by Developer or Developer's general contractor (which written contracts or subcontracts shall be delivered to the City), or ii) a written estimate from Developer's project architect approved by the City Engineer. The Security shall be conditioned upon Developer's c:hopcivil\CondUse.Edco - 11 - . completion of the Access Improvements and Drainage Facilities 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 tenn ending ninety (90) days after the date on which Developer has substantially completed the Access Improvements and Drainage Facilities and delivered proof of payment therefor to the City (which latter date is herein referred to as the "Termination Daten). The City may draw upon or enforce the Security for any violation of Developer's obligations under Paragraphs 6.A. or 6.8. of this Agreement or Developer's warranty of landscaping improvements which is not cured within ten (10) business days after written notice to the Developer. If the Access Improvements and Drainage Facilities are not completed within 180 days of the date of this Agreement, the City may also draw upon or enforce the Security, provided i) such 180 day period shall be extended by the number of days corresponding to any delay in completion of the Access Improvements and Drainage Facilities resulting from adverse weather conditions, acts of God or other causes beyond Developer's reasonable control, and ii) the City shall not draw upon the Security until Developer has been given written notice of the City's intention to draw upon or enforce the Security and the Developer has not substantially completed the Access Improvements and Drainage Facilities within thirty (30) days after deliver of such notice. If the Security is drawn upon, the draw shall be used to cure the default (including completion of the Access Improvements and Drainage' Facilities by the City) and may also be used to payor reimburse the City for any cost, expenses or damages recoverable under Paragraph 15 of this Agreement. Developer hereby authorizes the City and its employees, agents and contractors, to enter the Real Property for the purpose of completing the Access Improvements and Drainage Facilities in the event the Security is drawn upon. However, the City shall not be obligated to enter upon the Real Property and complete the c:hopcivil\CondUse.Edco - 12 - ~ i . Security. In the event the City receives notice of or claims from laborers, materialmen or others contributing to the Access Improvements or Drainage Facilities 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 or the land on which the Access Improvements or Drainage Facilities have been installed, and if such claims are not fully resolved at least ninety (90) days before the Security will expire, Developer hereby authorizes' the City to commence an Interpleader action pursuant to Rule 22, Minnesota Rules of Civil Procedure for the District Courts, to draw upon the Security in an amount up to 125 percent of the claims and deposit the amount so drawn with the District Court Administrator in compliance with said Rule 22, and, upon such deposit, Developer shall release, discharge and dismiss the City from any further proceedings as it pertains to the sums deposited with the District Court Administrator, except that the Court shall retain jurisdiction to determine attorneys' fees. 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 Agreement. 15. Enforcement of Aereement. The terms, conditions, requirements and restrictions established by this Agreement shall be enforceable exclusively by the City of c:hopcivil\CondUse.Edco - 13 - . 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 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 Access Improvements or Drainage Improvements, any damages, costs or expenses, including reasonable attorney's fees, incurred by the City as a result of enforcement of the provisions of the Easement Agreement ' or any amounts due to the City from Developer under Paragraphs 6.A and B. of this Agreement. All costs and expenses incurred by the City in cunng any other default by B. . Developer in the performance of any of the terms, covenants and conditions of c. this Agreement. All reasonable costs and expenses for engmeenng, legal and administrative expenses incurred by the City in enforcing Developer's performance of this Agreement or the completion of construction of the Access Improvements or Drainage Improvements. . D. Any other remedy or sanction provided by Minnesota Statutes or the Ordinances of the City of Hopkins. If Developer fails to pay any amount due to the City hereunder after thirty (30) days' written notice to Developer demanding such payment, Developer agrees the City shall be entitled to levy a special assessment against the Real Property in the amount stated in the notice to Developer in accordance with Minn. Stat. Chapter 429, and Developer waives all objections to or appeals of c:hopcivil\CondUse.Edco - 14 - . . the final amount of such special assessment to be levied against the Real Property. Developer acknowledges that the rights of the City to enforce performance of the terms, conditions, requirements and restrictions established by this Agreement are special, unique, and of an extraordinary character and that, in the event Developer violates or fails or refuses to perform any tenn, condition or restriction established by this 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 Agreement, the City, may, at its option, initiate and , prosecute an action to specifically enforce the perfonnance of the tenns, conditions and restric- tions established by this Agreement. No remedy specified in this 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 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 Agreement. 16. Notices. Any notice, request or other communication required or provided to be given under this 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: Edco Products, Incorporated Attention: Gerry Degner 8700 Excelsior Boulevard Hopkins, MN 55343 To City: City of Hopkins Attention: City Manager 1010 First Street South c:hopcivil\CondUse. Edco - 15 - " . . Hopkins, Minnesota 55343 or to such other address as either party, by notice given as herein provided, shall designate. Mailed notice shall be conclusively deemed to have been given two (2) business days after the date of mailing. 17. Severability. Invalidation of any of the tenns, conditions, provISIOns or restrictions of this Agreement, whether by Court Order or otherwise, shall in no way affect any of the other terms, conditions, provisions and restrictions, all of which shall remain in full force and effect. 18. Headings. The headings and captions at the beginnings of paragraphs of this Agreement are for convenience of reference only and shall not influence its construction. 19. Execution of Counterparts. This 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 Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota. 21. Evidence of Title and Recordation of Conditional Use Permit. Prior to the ,. execution of this Agreement, Developer shall provide the City with evidence of title to the Real Property, at Developer's expense, in the form of a current Title Opinion or Commitment for Owner's Title Insurance showing fee title to all of the Real Property in the name of Developer. D~veloper shall cause this 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 that this Agreement and the Conditional Use Permit shall be filed for record as a restriction and encumbrance upon the title to the Real Property. c:hopcivil\CondUse.Edco - 16 - . . . j . IN WITNESS WHEREOF, the Developer and the City have executed this Agreement as of the date and year first above written. EDCO PRODUCTS, INCORPORATED By Its CITY OF HOPKINS By Its By Its STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this 2003, by , of Edco Products, Incorporated., laws of Minnesota, on behalf of the corporation. day of , the a corporation under the STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) c:hopcivil\CondUse.Edco - 17 - Notary Public . . . , , The foregoing instrument was acknowledged before me this day of , 2003, by and , the and , respectively, of The City of Hopkins, a municipal corporation under the laws ofthe State of Minnesota, on behalf of the municipal corporation. Notary Public THIS INSTRUMENT WAS DRAFTED BY: Miller, Steiner & Curtiss, P.A. 400 Wells Fargo Bank Building 1011 First Street South Hopkins, Minnesota 55343 c:hopcivil\CondUse. Edco -18- ~ 1 ~, . . EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY c:hopcivil\CondUse.Edco - 19 - . b . EXHIBIT B COpy OF EASEMENT AGREEMENT WITH HCRRA c:hopcivil\CondUse.Edco - 20 -