CR 2004-089 PUD/ Development Agreement- Luther Company/ Hopkins Honda
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May 26, 2004 HOPKINS Council Report 2004-089
. PUDIDEVELOPMENT AGREEMENT - THE LUTHER COMPANY/HOPKINS HONDA
MAINSTREET PROPERTIES
Proposed Action
Staff recommends adoption of the following motion: Move to approve the PUD/Development
Aqreement between the City of Hopkins and The Luther Company for the properties occupied
by Hopkins Honda between Sixth and Eiqhth Avenues on the north side of Mainstreet and
authorize its execution.
With this motion it is understood that the City Council gives staff the authority to make minor
modifications to the agreement, if necessary, that do not change the intent of the agreement.
Overview
Hopkins Honda is proposing to move all their operations, including the body shop and used-
car sales lot on the 600 and 700 blocks of Mainstreet, to the former Knox property. It is their
intention to make these two sites available for redevelopment.
The Luther Company has a signed purchase agreement with The Cornerstone Group and
there has been a concept review of a mixed-use development with the Zoning & Planning
Commission and the City Council. The project as proposed at this time would include
approximately 6500 square feet of retail space and a combination of condominiums and
. town homes. The PUD/Development Agreement allows for the development as currently
proposed.
However, as a project for the site becomes better defined the developer will need to seek
additional City approvals through an amendment to the PUD Agreement or the execution of a
redevelopment agreement. The purpose of the Agreement at this point is to define the broad
parameters of future redevelopment efforts and assure that the existing uses will not
continue.
Primary Issues to Consider
A summary of the main points of the agreement are attached, prepared by the City Attorney.
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Impact: $~O Budgeted: Y/N Source: I
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Documents (CIP, ERP, etc.):
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MILLER, STEINER & CURTISS, P.A.
. ATTORNEYS AT LAW
400 WELLS FARGO BANK BUILDING
JERI~M'y' S. STEINER" 1011 FIRST STREET SOUTH JERRE A, MILLER (RETIRED)
W'y'NN ClJRTlSS HOPKINS, MINNESOTA 55343
Ik~ll 1'1, ~lll.l1! Ll\\' sp....\.' i ~ll i~l. lTl1di~d 952-938-7635
II\. 111,' \ 11r:1l....~1 \(;\ .:;Ial.... Bal' ;\~~11(i;lIi...;[l FAX 952 93;'; 7h 70
Writer's Direct Dial No. 952-938-6219
MEMORL\NDUM
DATE: May 25, 2004
TO: Jim Kerrigan
FROM: Jerry Steiner
RE: PUD/Development Agreement for Redevelopment of the Hopkins Honda Used Car
Sales and Body Shop Facility on Mainstreet Between Eighth Avenue South and Sixth
A venue South
At your request, I am providing this Memo to outline the substantive tenns of the proposed
PUD/Development Agreement ("PUO Agreement") between the Luther Company Limited Pm1nership
("'Luther") and the City of Hopkins for the redevelopment ofthe Hopkins Honda used car sales and
. body shop facility on Mainstreet between Eighth Avenue South and Sixth Avenue South. In
connection with the redevelopment of the former Knox Lumber property at 250 Fifth Avenue SoutlL
Luther has agreed to discontinue the current LIse of the Mainstreet site as a used car sales and auto hody
shop facility and apply for and accept planned unit development overlay zoning ("PLIO Zoning") that
wi II result in redevelopment of the site as a mixed use, multi-story residential and commercia]
development (the "Project"). The PUD Agrcement spells out the tenns and conditions imposed by the
City as (l condition of approval of the PUD Zoning. The substantive terms and conditions stated in the
PUD Agreement are listed below:
l. Because the actual redevelopment o[the site and construction of the Project is expected to
occur in the year 2005 and the plans for the Project have not yet been submitted for approval.
Paragraph 2 0 f the PUD Agreement states that a new or amended P U 0 Agreement or
Redevelopment Agreement will be executed at the time the site is actually redeveloped
detai ling the spec i fie tC1111S and conditions [or that redevelopment and eonstructi all 0 f the
Project. Paragraph 2 goes on to state that the "Redcvelopment Agreement" to be entered into at
the time of the actual redevelopment \vill contain terms and conditions consistent with Exhihit
B to the PUD Agreemcnt. Exhibit B lists the standard development agreement provisions
detailing the procedures 1'01' completion of construction of development improvements and
security for performance of tile Developer's obligations. Paragraphs 3-8, ]0, ] l, 14 and 22 of
the PLD Agreement simply reiterate that the specific tellllS and conditions for development 0['
the Project and completion of development improvements will be stated in the "Redevelopmt'llt
Agreement" to be entered into at the time o[ actual redevelopment of the Project.
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7 Paragraph 12.A. of the PUD Agreement states that the intent of and permitted uses unLler the
. PUD Zoning for the Project are those described in the "Development Design Standards" in
Exhibit C to the PUD Agreement. The City Council's approval of the PUD Zoning and
execution of the PUD Agreement by Luther will require that this property and the Project be
redeveloped as a mixed use, multi-story residential and commercial facility in accordance with
the Development Design Standards described in Exhibit C. Generally, those Development
Design Standards will allow the construction and operation of a mixed use project similar to the
concept that has previously been submitted to the City Council for review. The Design
Standards for the Project are stated in Paragraph IV of Exhibit C. Paragraph V of Exhibit C
lists the prohibited uses under the PUD Zoning. which are the same as those imposed on the
Marketplace Lofts Development, and, in addition, prohibit automobile sales or leasing,
automobile repair or body shop uses.
~ Paragraph 12.8. deals with the issue of when the current use of the site as a used car sales and
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body shop facility will be discontinued. Specifically, Paragraph 12.8. states Luther must
pennanently discontinue this use of the site within sixty (60) days after the issuance of a
temporary or pel111anent Certificate of Occupancy [or the new automobile dealership to be
constructed 011 the Knox site; and, in any event, by the second anniversary date of the PUO
Agreement. Paragraph 12.8. also gives the City the right to require Luther to demolish and
remove al] existing structures and improvements from the site, remediate any contamination,
grade and restore the site if Luther has completed this work within 270 days after the dale on
which the used car sales and body shop uses are required to be discontinued. If Luther rails to
complete the demolition, grading and restoration work within that 270 day period, Luther is
. required to complete this work within ninety (90) days after receiving notice from the City. II'
Luther fails to complete this work within the ninety (90) day period, the City is authorized to
enter the property, complete the work and recover all costs incurred by the City as a special
assessment 1I nder Minnesota Statutes Chapter 429.
4. Paragraphs 13 and 15-21 of the PUD Agreement are the standard development agreement
provisions related to enforcement of the City's rights under the PUD Agreement, notices and
other standard requirements.
I trust the information in this Memo will assist you in reviewing the PUD Agreement. You should. or
course, feelll<ee to call me if YOLl have any questions.
JSS
JSS/drs
Ene.
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Miller, Steiner & Curtiss, P.A.
PUD/DEVELOPMENT AGREEMENT
This POO/Development Agreement (this "POO Agreement") is made and executed this
day of , 2004, by The Luther Company Limited Partnership, a
Mim1esota limited partnership ("Developer"), and the City of Hopkins, a municipal corporation
. under the laws of Minnesota ("City").
RECIT ALS
A. Developeris the fee owner of certain real property (the "Real Property") located
in the City of Hopkins, Hennepin County, State of Minnesota, legally described in Exhibit A
attached hereto and incorporate herein by reference.
B. The Developer has applied to the City to approve overlay 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 City has approved such overlay zoning, but upon and subject to the
agreements, tenns, covenants and conditions of this PUD Agreement, which Developer has
agreed to accept.
. C. On , 2004, the City Council of the City adopted
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Ordinance No. ~ approving the overlay PUD zoning for the Real Property. As a condition .
of that approval, 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 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.
D. Section 565.02 of the Hopkins City Code provides the City may require the
Developer to enter into a Development Contract stating the terms and conditions for the City's
approval of the PUD overlay zoning. The City has required Developer to enter into this PUD
Agreement under the authority provided in said Ordinance.
NOW, THEREFORE, in consideration of the foregoing Recitals and the approval of the
PUD overlay zoning for the Real Property, Developer agrees to the terms and conditions stated .
in this PUD Agreement and declares that all of the Real Property shall be held, transferred,
leased, occupied, used, improved and developed subject to the following agreements, terms,
covenants, conditions and restrictions:
1. Recitals Incorporated. The foregoing, Recital Paragraphs A through D, are
incorporated in and made a part of this POO Agreement in their entirety.
2, Development Improvements. The intent of the PUD overlay zoning is that the
current use of the Real Property as an auto body repair and used Car sales facility shall be
discontinued no later than the Discontinuance Date (as defined in Paragraph n.R, below) and
that after the Discontinuance Date the Real Property shall be redeveloped as a mixed use
development in conformity with the permitted uses and design standards described in Exhibit C
hereto. At the time of such redevelopment, the City shall enter into an amendment to this PUD .
. Agreement or a similar agreement (the "Redevelopment Agreement") with the redeveloper of the
Real Property ("Redeveloper") stating the terms and conditions for construction, installation and
completion of public and private improvements ("Improvements") as required. for. such
redevelopment. The Redevelopment Agreement shall contain terms and conditions consistent
with. the Redevelopment Guidelines ("Redevelopment Guidelines") stated in Exhibit B attached
hereto. The Redevelopment Guidelines shall be subject to such modifications as shall be
approved by the City and agreed to by the Redeveloper at the time ofredevelopment of the Real
Property.
3. Identification of and Compliance With Plans.
. [THISP ARAGRAPH HAS BEEN INTENTIONALLY DELETED AND IS TO
BE INCLUDED IN THE REDEVELOPMENT AGREEMENT]
. 4. Additional bnprovements.
[THIS PARAGRAPH HAS BEEN INTENTIONALLY DELETED AND IS TO
BE INCLUDED IN THE REDEVELOPMENT AGREEMENT]
5. Construction Standards and Procedures.
[THIS PARAGRAPH HAS BEEN INTENTION,'ALL Y DELETED AND IS TO
BE INCLUDED IN THE REDEVELOPMENT AGREEMENT]
6. License.
[THIS PARAGRAPH HAS BEEN INTENTIONALLY DELETED AND IS TO
BE INCLUDED IN THE REDEVELOPMENT AGREEMENT]
7. Improvements to be Transferred to City.
[THIS PARAGRAPH HAS BEEN INTENTIONALLY DELETED AND IS TO
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BE INCLUDED IN THE REDEVELOPMENT AGREEMENT] .
8. Warranty.
[THIS PARAGRAPH HAS BEEN INTENTIONALLY DELETED AND IS TO
BE INCLUDED IN THE REDEVELOPMENT AGREEMENT]
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 POO Agreement, 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 incurred before or after the
date of this PUD Agreement, including, without limitation, traffic, development, fiscal,
environmental, geotechnical, surveying, engineering, and legal services of the City Attorney,
which are to be reimbursed at the rate of $200.00 per hour. Such reimbursements from .
Developer shall be due and payable within ten (10) business days of delivery of a copy ofthe
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.
[THIS PARAGRAPH HAS BEEN INTENTIONALLY DELETED AND IS TO
BE INCLUDED IN THE REDEVELOPMENT AGREEMENT]
11. Time of Performance.
[THIS PARAGRAPH HAS BEEN.INTENTIONALLY DELETED AND IS TO
BE INCLUDED IN THE REDEVELOPMENT AGREEMENT]
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12. Additional Conditions and pun Zonin2 Requirements. Developer agrees the .
Real Property shall be redeveloped, held, transfem:~d, occupied, used and improved subject to
and in compliance with the following PUD zoning requirements and additional tenns and
conditions:
A. The intent of the POO overlay zoning, the permitted uses, prohibited uses and
design standards within the POO overlay zone shall be as described in the Development Design
Standards attached to this POO Agreement as Exhibit C ("Development Design Standards").
The Real Property shall be redeveloped in accordance with the Development Design Standards.
All future uses of the Real Property shall be in accordance and confonnity with the
Development Design Standards and the underlying B-3 zoning for the Real Property.
B. Reference is made to that certain POO/Development Agreement of even date
herewith between Developer and the City pertaining to the redevelopment of an approximately .
lO acre site located at 250 Fifth Avenue South, Bopkins, by the construction of a full service
automobile sales, repair and body shop facility containing approximately 88,000 square feet of
space and relating parking and access improvements (the "Auto Dealership Project"). Developer
agrees that within sixty (60) days after the earlier of the following dates: i) the date of issuance of
a temporary Certificate of Occupancy for the Auto Dealership Project that allows Developer to
use the Auto Dealership Project for used car sales. and auto body repair, or ii) the date issuance
of a permanent Certificate of Occupancy for the Auto Dealership Project by the City (the last day
of said sixty (60) day period being herein referred to as the "Discontinuance Date"), Developer
will discontinue the use of the Real Property for its present use as an automobile body shop,
repair and used car sales facility (the "Existing Use") and that the Existing Use will be
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. prohibited on the Real Property from that date forward. Notwithstanding the provisions of the
immediately preceding sentence, in no event shall the Discontinuance Date be later than the
second anniversary date of this POO Agreement. Following the discontinuance of the Existing
Use of the Real Property, Developer shall secure and maintain all stmcturesand improvements
located on the Real Property, keep all such stmctures, improvements and the Rea.l Property in
good condition and repair and shall not "board up" or otherwise conceal the window and door
openings on the exterior .of such stmctures and improvements. In the event Developer or its
successor in title to the Real Property has not commenced demolition and removal of all existing
stmcturesand improvements from the Real Property within 270 days of the Discontinuance
Date, Developer agrees the City shall be entitled to require Developer or its successor in title to
the Real Prope11y to commence and complete the demolition and removal of all stmctures and
. improvements from the Real Property, remediation of any contamination or other adverse
environmental conditions and grading and restoration of the Real Property upon thirty (30) days'
written notice to Developer or its successor in title in the manner provided in Paragraph 16 of
this PUD Agreement. Developer agrees to complete the demolition and removal of all structures
and improvements from the Real Property and grading and restoration work within ninety (90)
days of commencement of such Work, subject to reasonable delays resulting from removal or
remediation of unforeseen contaminants, hazardous waste or hazardous substances and strikes,
lockouts or labor disputes. The grading and restoration of the Real Property shall include seeding
or sodding all open areas and maintaining the same, unless otherwise approved by the City in
writing. Any notice to a successor in title to the Real Property shall be deemed properly given
and delivered if forwarded to the address of the record owner of the Real Property at the time
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notice is given as stated in the records of the Hennepin County Property Tax Department and .
shall be deemed to be duly given when delivered in the manner stated in Paragraph 16. All such
demolition, removal, remediation, grading and restoration shall be completed in compliance with
all applicable statutes, rules and ordinances at the sole cost of Developer or its successor in title
to the Real Property. The obligation to complete such demolition, removal, remediation, grading
and restoration shall be the personal obligation of the fee owner of the Real Property on the date
of delivery of the City's notice requiring commencement and completion of such work. If
Developer or its successor in interest fails to commence or complete. such demolition, removal,
remediation, grading and restoration work after delivery of notice from the City, the City and its
agents shall be entitled to enter upon the Real Property upon thirty (30) days' written notice to
Developer or its successor in title and complete such work at the expense of Developer or
Developer's successor in title. However, no provision of this. PUD Agreement shall be .
interpreted to require the City to undertake to complete such work. All costs incurred by the City
in completing any demolition, removal, remediation, grading or restoration work shall be
assessable against the Real Property as a special assessment pursuant to Minnesota Statutes
Chapter 429, and Developer waives any objection to such special assessment on behalf of itself
and its successors in title to the Real Property.
C. At such time as the Real Property is redeveloped in accordance with the PUD
overlay Design Standards specified in Exhibit C hereto, it is anticipated vacation of public
easements or alleys and relocation of public utilities located on the Real Property will be
required, and the Redevelopment Agreement to be entered into at that time shall contain such
provisions as are deemed necessary by the City related to these requirements.
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. D. Developer shall otherwise comply with all conditions and requirements imposed
by the City Coullcil of the City ill its Resolution number approving the ordinance for
the overlay PUD zoning for the Real Property; and with the requirements of any applicable
statutes, ordinances, codes or regulations.
E. The Redevelopment Agreement shall contain such additional tel111S and
conditions as shall be required by the City as a condition of the approvals obtained from the City
at the time ofredevelopment of the Real Property.
F. From and after the Discontinuance Date no part of the Real Property shall be
lIsed for any of tile prohibited uses described in Exhibit C attached hereto.
13. Compliance With Other Requit-ements, Assi2nment bv Developer,
Termination. Developer agrees that it shall comply with this PUD Agreement, the conditions
. stated in the City Council Resolution and ordinance approving the PUD overylay zoning, 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
uwner 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
tell11S, conditions and restrictions are imposed upon the Real Property as a servitude in favor of
the City of Hopkins, Minnesota, for its benefit only. The Developer may assign its rights or
obligations LInder this PUD Agreement to a subsequent owner of the Real Property in connection
with the transfer of title to the Real Property to such subsequent owner without the prior approval
of the City, provided such subsequent owner of the Real Property assumes Developer's
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ubligations under this PUD Agreement ano, fmiher provided, such assignment shall not relieve .
Developer of any obligation arising prior to the effective date ofthe assignment. Developer shall
not otherwise assign its rights or obligations under this PUD Agreement without the prior written
approval of the City.
The tell11S, conditions and restrictions established by this PUD Agreement are perpetual
in duration except that, upon Developer's completion of all of the demolition, removal, grading
and restoration \vork required by Paragraph 11.8 of this PUD Agreement in compliance with the
provisions of said Paragraph 12.8, the City shall execute and deliver to Developer a Certificate,
in record<lble form, certifying as to Developer's compliance with the provisions of Paragraph
12.B.
14. Security and Claims.
[THIS PARAGRAPH HAS BEEN INTENTIONALLY DELETED AND IS TO .
BE fNCLUDED IN THE REDEVELOPMENT AGREEMENT]
15. Enforcement of PUD Agreement. The tenns, conditions, requirements and
restrictions established by this PUD Agreement shall be enforceable exclusively by the parties to
this PUD Agreement amI shall be enforceable by injunctive relief, prohibitive or mandatory, to
prevent the breach of or enforce perf01111ance 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:
u. Legal proceedings to recover, collect, payor reimburse the City for the cost of
completing construction of the Improvements.
b. All costs and expenses incUlTed by the City in cUling any other default by
Developer in the performance of any of the terms, covenants and conditions of
this PUD Agreement.
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. c. All reasonable costs, fees and expenses for engineering, legal and administrative
expenses incurred by the City in enforcing Developer's performance 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
ofthe 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 POO 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. If Developer fails to pay any
amount due to the City under this POO Agreement after thirty (30) days' written notice to
. Developer demanding such payment, Developer agrees the City shall be entitled to levy a special
assessment against the Real Property in the amount stated in the Notice to Developer in
accordance with Minn. Stat. Chapter 429, and Developer waives all objections to or appeals of
the final amount of such special assessment levied against the Real Property. Developer
acknowledges that the rights of the City to enforce performance of the terms, conditions,
requirements and restrictions established by this PUD Agreement are special, unique, and of an
extraordinary character and that, in the event Developer violates. or fails or refuses to perform
any term, condition or restriction established by this 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
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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 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 or general partner 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: The Luther Company Limited Partnership. .
701 Xenia Avenue South, Suite 220
Golden Valley, MN 55416
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. Severability. 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 restrictiOl1s, all of which shall remain in full
force and effect
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. 1 R. Headings. The headings and captions at the beginnings of paragraphs of this
Pl TD Agreement arc kif convenience of reference only and shall not influence its construction.
19. Execution of Counterparts. This PUD Agreement may be simultaneously
cxecuted in several countellJarts, 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 en forced 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 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 calise this PUD Agreement to be executed by or consented to by all
. persons holding any interest in the title to the Real Propcr1y, or lien thereon, as deemed nccessary!
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.
lTHIS PARAGRAPH HAS BEEN INTENTIONALLY DELETED AND IS TO
BE INCLUDED IN THE REDEVELOPMENT AGREEMENT]
IN W1TNESS WHEREOF, Developer and the City have executed this PUD Agreement
as oCthe date and year first above written.
THE LUTHER COMPANY LIMITED
PAR TNERSHIP
By
Its
. ('!-lUll' 1\ i 1\1.,.1 0'1101, ccIRl'lkvd, PI if) - 13 -
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STATE OF )
. )SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 2004, by ,
the , of The Luther Company Limited Partnership, a limited
partnership under the laws of the State of Minnesota, on behalf of the limited partnership.
Notary Public
CITY OF HOPKINS
By
Its
By
Its
ST ATE OF )
. )SS
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 2004, by , the
, and , the
, of The City of Hopkins, a municipal corporation, under the laws of
the State of Minnesota, on behalf of the municipal corporation.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Miller, Steiner & Curtiss, P.A.
400 Wells Fargo Bank Building
1011 First Street South
Hopkins, Minnesota 55343
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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 PUD/Development 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
, 2004, by , the
, and , the
, of , a corporation, 'under
the laws of the State of Minnesota, on behalf of the corporation.
Notary PUblic
.
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EXHIBIT A
. LEGAL DESCRIPTION OF REAL PROPERTY
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EXHIBIT B
REDEVELOPMENT GUIDELINES .
1. Construction Standards and Procedures.
The Improvements shall be constructed and installed in accordance with the final Plans
(as identified and defined in the Redevelopment Agreement), 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 ora Permit for the work depicted in such plans.
In connection with the construction of the Improvements, the Redeveloper shall restore
all City streets, utilities and other public facilities and property disturbed ordar11agedas a result
. of Redeveloper's construction activities to substantially the same condition as exi~ted prior to
coi11mencement of construction.
Within sixty (60) days after the completion of the Improvements, Redeveloper shall
supply the City with the following relating to the Improvements: (~) a .complete set of
reproducible mylar as-built plans, (b) two complete sets of utility tie sheets, (c)1ocaiion
stationing and swing ties of all utility stubs, (d) benchmark net:work arid (e) digital as-builts
conforming with the following requirements:
(i) Digital Files in Microstation DGNFormat 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.
2. License.
The Redeveloper hereby grant~. shall the City, its agents, employees and insPtlctors a I
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.
3. Improvements to be Transferredto'City.
Upon completion of construction of the Improvements, and final acceptance and approval
of the Improvements.by the. Gity, all of the IniprovementsJocated within or upon any public
easements, including drainage and utility easements, if any, to be dedicated to the City, public
streets or other rights-of-way or other City-owned land shall become the sole property of the
City. 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." The
Redeveloper shall transfer the City Improvements to the City free and clear o fall liens and
encumbrances.
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At such time as the City Improvements have been completed, representatives of
. Redeveloper's contractors, and a representative of Redeveloper's Engineerwill 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 ofincQmplete or defective work comprising
the City Improvements to be submitted by Redeveloper 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 the Redevelopment Agreement. As a condition of its
acceptance of title to any of the City Improvements, the City shall receive from Redeveloper
written evidence, in form and content reasonably acceptable to the City, that Redeveloper 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 Redeveloper 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 oftheCity, which approval shall be granted if
Redeveloper is in full compliance with all of the terms, conditions, agreements, and requirements
of this PUD Agreement related to the City Improvements.
4. Warrantv.
The Redeveloper shall warrant that all work comprising the City Improvements shall be
free from defective materials or faulty workmanship for a period of two (2) years after
acceptance of the City Improvements by the City as evidenced by a resolution duly adopted by
. the City Council, except that trees and landscaping plantings shall be warranted for twelve (12)
months from the date of planting. All work and materials comprising the City Improvements
which are found to be defective within two years after acceptance.thereof by the City (or twelve
(12) months from the date of planting in the case of landscaping improvements) shall be repaired
or replaced by Redeveloper at Redeveloper's sole expense.
5. Other Governmental Approvals.
The Redeveloper 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 the redevelopment of the Real Property. The Redeveloper shall maintain all
such required permits and comply therewith at all times.
6. Time of Performance.
The Redevelopment Agreement shall contain such provisions as are deemed appropriate
by the City regarding commencement and completion of construction ofImprovements in
connection with the redevelopment of the Real Property.
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7. Security and Claims.
To guaranty Redeveloper's compliance withthe tetrrlsofthis. POO Agreement, payment .
of the cost of all Improvements and cOmpletion of construction thereof, Redeveloper shall
deliver to the City the following Letter(s) of Credit and/or surety bond(s)acceptableto and in
favor of the City (the "Security") issued by a bank or surety reasl:mablyacceptable to the City:
A.. The Security for the landscaping improvementscol11prising 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 150 percent
.oftheestimated cost of the landscaping improvements,; as established by awrittellestimate
submitted by Redeveloper's landscaping contractor. .
B. The Security for the remaining Improvements, other thah landscaping
improvements, shall be delivered to the City before commencement of construction of such
Improvements or issuance of a permit by the City permittingcom.mencement ofsuch
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 costof completion of construction of such Improvements as stated in
the written contracts or subcontracts for their constructionimd installation with the contractors or
subcontractors retained by Redeveloper or Redeveloper's general contractor (which written
contracts or subcontracts shall be delivered to the City), orji)a written estimate from
Redeveloper's Engineer approved by the City Engineer.
The Security shall be conditioned llpon Redeveloper's completion of the Improvements
for which the Security is provided, performance of Redeveloper's warranty under Paragraph 8 of
this PUD Agreement including replacement of any defective or nonconforming.Il11provements
and payment of the entire cost thereof, and the form and content ofthe' Security shall be subject .
to the reasonable approval.of the City. The Redeveloper shall maintain.the SeCUrity in effect for.
a term ending two (2) years after the date on which Redeveloper has substantially completed the
Improvements and delivered proofofpayment therefore to the City (which latter date is herein
referred to as the "Termination Date"). Redeveloper shall initially deliver to the City the original
Security expiring no earlier than one (1) year after the date of deliVery of the original Security to
the City. Thereafter, no later than thirty (30) days before the expiration of the Security,
Redeveloper shall deliver to the City original written evid,ence, in form reasonably acceptable to
the City, extending the term ofJhe Security for successive one (I) year periods, but in no event
extending beyond the Termination Date. If Redeveloper fails to deliver such original written
evidence ofextension of the Security at least thirty (30) days before expiration of tile Security,
Redeveloper shall be deemed to.be in default under this PUP. Agreenientand 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 bexeduced to an amount less than forty
percent (40%) of the cost ofthe.Citylmprovements (such cost.to be determined in the lTIanner
specified in Subparagraph B ofthis Paragraph 14) until tlie Termination Date. Notwithstanding
the provisions of the pre.ceding sentence, the Security for the landscaping improvements
comprising a part of the Improvements may not be reduced, and shall be maintained at its
original amount until one (1) year after completion of such landscaping improvements. The City
may draw upon or enforce the Security for any violation of the terms.ofthis PUDAgreement
which is not cured within ten (10) business days after written notice to the Redeveloper, .
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provided, in the event the default is such that it cannot be cured with reasonable diligence within
. ten (1 0) business days, the City shall not draw upon the Security so longas Redeveloper 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 Redeveloper. If the Improvements
(other than the final lift of asphalt) are not completed on a date to be .specified in the
Redevelopment Agreement, the City may also draw upon or enforce the Security. If the Security
is drawn upon, the draw shall be used to cure the default (including completion of the
Improvements by the City, provided the City shall have no obligation to complete the
Improvetnents) and may also be used to pay or reimburse the City for any cost, expenses or
damages recoverable under Paragraph 15 of this PUD Agreement. The Security shall be released
to Redeveloper on the Termination Date. In the event the City receives notice of or claims from '.
laborers, materialmen or others contributing to the Improvements that any amounts due them
have not been paid when due, and suchlaborers,materialmen or others are seeking payment out
of the Security or intend to assert claims against the City, the Improvements or the real property
on which the Improvements have been installed, and ifsuch claims are not fully resolved at least
ninety (90) days before the Security will expire, Redeveloper hereby authorizes the City to
commence an Interpleaderaction pursuant to Rule22, 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 saidRule
22, and, upon such deposit, Redeveloper shall release, discharge and dismiss the City from any
further proceedings as it pertains to the sums deposited with the District Court Administrator,
except that the Court shall retain jurisdiction to determine attorneys' fees. The Redeveloper
agrees that it shall protect, indemnify and hold the City and its agents, representativesand
. employees harmless from and against all costs, damages and liabilities, including reasonable
attorneys' fees and Court costs, resulting from or incurred in connection with Redeveloper's
failure to comply with the terms, covenants, conditions and requirements of this PUD ....
Agreement.
8. Ownership, Maintenance and Repair of Improvements.
The City shall not be responsible for the maintenance or repair of any of the
Improvements other than the City Improvements, and shall have no liability whatsoever for any
costs, expenses, liabilities, obligations, claims and demands related to or arising from, .either
directly or indirectly, the design, construction, use, maintenance, repair, reconstruction or
replacement of the Improvements, together with all modificatIons or replacements thereof or
additions thereto. The Redeveloper 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 repairofthe City Improvements
following their acceptance by the City, but subject to the Redeveloper's warranty of the City
Improvements), and any replacements or substitutions therefor, including, but not limited to,
claims for injury to persons or property.
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EXHIBIT C
DEVELOPMENT DESIGN STANDARDS.
I. Intent. The purpose of this overlay zone is to create a Planned Unit Development
permitting the development, construction and operation of mixed use, multi-story residential and
commercial facilities complying with the permitted uses and design standards stated herein. The
use of the overlay PUD zoning is to allow for more flexible design standards while creating a
higher quality project. The PUD overlay zone requires that the Development demonstrate a
higher quality of architectural standards and site design. The underlying B-3 zoning will remain
in effect and any future use of property within the PUD overlay zone must be consistent andin .
conformity with the underlying B-3 zoning and the PUD overlay zoning.
II. Permitted Uses. The permitted uses in the PUD overlay zone are limited to retail and
commercial uses consistent with the underlying B-3 zoning. and owner-occupied housing
consisting of multi-family Icon dominium housing or townhomes.
III. Setbacks. Setback requirements shall be the same as applicable in the underlying B-3
zoning district.
IV. Desie" Standards.
Building Design and Construction :
. a. Retail or commercial uses shall constitute not less than 6,500 square feet in total .
within the PUD overlay zone between th A venue and 8th A venUe and shall have
frontage on Mainstreet.
b. In the area west of Seventh A venue, north of Mainstreet and east of the midpoint
of the block, owner occupied multi-family housing shall be located above the
retail/commercial space, with total building height of not less than three stories
and not more than four stories.
c. In the area north of Mainstreet located between Sixth Avenue and Seventh
Avenue, owner-occupied housing consisting of condominiums, townhomes or
retail or office use or a combination of these uses, the design of which shall be
subject to approval by the Hopkins City CounCil' as part of a conditional use
permit or site plan approval for redevelopment of all of the' Real Property. All
structures shall have a height of at least two' stories above grade, but not more
than three stories, provided four stories may be allowed if the building height does.
not exceed the maximum height permitted in the underlying B-3 zoning,district,
Developer' demonstrates that the proposed four story. structure will be
architecturally compatible with surrounding buildings and adequate off-street
parking is provided in compliance with the City's ordinances..
d. In the area east of Eighth Avenue, north of Mainstreet and west of the midpoint of .
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the block, owner-occupied housing consisting oftownhomes or retail or office use
. or a combination of those uses, the design of which shall be subject to approval by
the Hopkins City Council as part of a conditional use permit or site plan approval
for redevelopment of all of the Real Property. All structures shall have a height of
at least two stories above grade, but not more than three stories.
e. Structured parking (preferably underground) shall be provided for the multi-
family residential use in compliance with the parking requirements of the City's
Code of Ordinances. Adequate on-site parking shall also be provided for all
retail, commercial and office uses in compliance with the parking requirements of
the City's Code of Ordinances.
f All development and construction must meet the design guidelines stated in the
Downtown Overlay District Ordinance, Section 556 of the Hopkins City Code.
g. The City may also require exterior finish, facade or other design elements, in
addition to those described in the above Design Standards, as determined at the
time of redevelopment of the Real Property as a mixed use Development.
V. Prohibited Uses. The following uses shall be prohibited within the POO overlay zone,
as other primary or accessory uses, whether or not the same are pennitted by the underlying B-3
zoning: automobile sales or leasing, automobile repair or body shop, adult establishment, adult
motion picture theater, adult novelty business or bookstore, amusement device establishment,
cabinet, electrical, heating, plumbing, upholstery or air conditioning sales or service shop, fix-it
. shop, liquor store, open sales lot, pawn shop, drive-thru restaurant, warehouse, taxi terminal,
tattoo parlor, currency exchange or tobacco shop. If any of the words and phrases in the
preceding sentence are defined in the Hopkins Code of Ordinances, such words and phrases,
when used in this paragraph, shall have the same meanings stated in the Hopkins Code of
Ordinances.
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