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IV.4. Second Reading of Ordinance 2021-1172 rezoning properties in the northwest quadrant of Excelsior Boulevard and Blake Road to Mixed Use with a Planned Unit Development (PUD); LindahlMEMO To: Honorable Mayor and City Council From: Jason Lindahl, City Planner Date: August 17, 2021 Subject: Second reading of Ordinance 2021-1172 rezoning properties in the northwest quadrant of Excelsior Boulevard and Blake Road to Mixed Use with a Planned Unit Development (PUD) Proposed Action Staff recommends the City Council approve the following motions: • Move to adopt Resolution 2021-044 approving the second reading of Ordinance 2021-1172 rezoning properties in the northwest quadrant of Excelsior Boulevard and Blake Road to Mixed Use with a Planned Unit Development (PUD) • Move to approve the Blake Road Station Planned Unit Development (PUD) Agreement and authorize the Mayor and City Manager to enter into this agreement, subject to any modification approved by the City Attorney. Overview The applicant, Bryan Farquhar of Trilogy Real Estate Group, requests approval of the second reading of Ordinance 2021-1172 rezoning properties in the northwest quadrant of Excelsior Boulevard and Blake Road to Mixed Use with a Planned Unit Development (PUD). The applicant also requests approval of the associated planned unit development (PUD) agreement. Together these items finalize the rezoning for Blake Road Station, a 3 phase mixed use residential and commercial development proposed for the northwest quadrant of Excelsior Boulevard and Blake Road just south of the future Blake Road light rail transit station. This project will redevelop the existing Hopkins Commerce Center strip commercial development into 3 separate 7-story buildings totaling 770 residential units and approximately 11,000 square feet of commercial space. The City Council approved the first reading of this rezoning ordinance, along with the associated Site Plan for Site A on August 2, 2021. Prior to that action, the Planning & Zoning Commission held a public hearing to review these items and recommended approval by the City Council on July 27, 2021. Should the City Council approve the second reading of this ordinance and the planned unit development agreement, it would rezone the subject properties to Mixed Use with a Planned Unit Development and authorize Mayor and City Manager to enter into the PUD agreement. Attachments • Resolution 2021-044 • Ordinance 2021-1172 • Blake Road Station Planned Unit Development Agreement CITY OF HOPKINS Hennepin County, Minnesota RESOLUTION 2021-044 A RESOLUTION APPROVING THE SECOND READING OF ORDINANCE 2021-1172 REZONING PROPERTIES IN THE NORTHWEST QUADRANT OF EXCELSIOR BOULEVARD AND BLAKE ROAD (PIDS 19-117-21-42-0044, 19-117-21-42-0045 & 19-117-21- 42-0046) TO MIXED USE WITH A PLANNED UNIT DEVELOPMENT (PUD), SUBJECT TO CONDITIONS WHEREAS, the applicant, Bryan Farquhar of Trilogy Real Estate Group, initiated an application requesting to rezone the properties in the northwest corner of Excelsior Boulevard and Blake Road with PIDs 19-117-21-42-0044, 19-117-21-42-0045 & 19-117-21-42-0046 to Mixed Use with a Planned Unit Development (PUD), subject to conditions., and WHEREAS, these properties are legally described as Lots 1, 2 & 3, Hopkins Commerce Addition; and WHEREAS, the procedural history of the application is as follows: 1. That the above stated application was initiated by the applicant on June 25, 2021; and, 2. That the Hopkins Planning & Zoning Commission, pursuant to published and mailed notice, held a public hearing on the application and reviewed such application on July 27, 2021: all persons present were given an opportunity to be heard; and, 3. That written comments and analysis of City staff were considered; and, 4. That the Hopkins Planning & Zoning Commission reviewed this application during their July 27, 2021 meeting and recommended approval by the City Council, subject to conditions; and 5. That the Hopkins City Council reviewed this application during their August 2, 2021 meeting and agreed with the findings of the Planning & Zoning Commission and approved the first reading of Ordinance 2021-1172. WHEREAS, staff recommended approval of the above stated application based on the findings outlined in the staff report dated August 2, 2021. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Hopkins hereby approves Ordinance 2021-1172 rezoning the properties in the northwest quadrant of Excelsior Boulevard and Blake Road with PIDs 19-117-21-42-0044, 19-117-21-42-0045 & 19-117-21-42-0046 to Mixed Use with a Planned Unit Development (PUD), subject to the conditions listed below. 1. Execution of a Planned Unit Development Agreement in a form acceptable to the City Attorney. 2. Approval of the associated site plan application for Blake Road Station Site A and conformance with all related conditions. 3. Approval of the development by the Minnehaha Creek Watershed District and conformance with all related conditions. Adopted by the City Council of the City of Hopkins this 17th day of August, 2021. By:___________________________ Jason Gadd, Mayor ATTEST: _______________________________ Amy Domeier, City Clerk 1 CITY OF HOPKINS Hennepin County, Minnesota ORDINANCE NO. 2021-1172 AN ORDINANCE REZONING PROPERTIES IN THE NORTHWEST QUADRANT OF EXCELSIOR BOULEVARD AND BLAKE ROAD (PIDS 19-117-21-42-0044, 19-117-21- 42-0045 & 19-117-21-42-0046) TO MIXED USE WITH A PLANNED UNIT DEVELOPMENT (PUD) THE COUNCIL OF THE CITY OF HOPKINS DOES HEREBY ORDAIN AS FOLLOWS: 1. That the present zoning classifications of B-4, Neighborhood Business District or I-1, General Industrial District, upon the following described premises are hereby repealed, and in lieu thereof, said premises are hereby rezoned as follows: • PID 19-117-21-42-0044 from I-1, General Industrial to Mixed Use with a Planned Unit Development (PUD) • PID 19-117-21-42-0045 from B-4, Neighborhood Business District to Mixed Use District with a Planned Unit Development (PUD) • PID 19-117-21-42-0046 from B-4, Neighborhood Business District to Mixed Use District with a Planned Unit Development (PUD) 2. The legal description of the properties to be rezoned are as follows: • Lot 1, Block 1, Hopkins Commerce Center Addition (PID 19-117-21-42-0044) • Lot 2, Block 1, Hopkins Commerce Center Addition (PID 19-117-21-42-0045) • Lot 3, Block 1, Hopkins Commerce Center Addition (PID 19-117-21-42-0046) First Reading: August 2, 2021 Second Reading: August 17, 2021 Date of Publication: August 26, 2021 Date Ordinance Takes Effect: August 26, 2021 ________________________ ATTEST: Jason Gadd, Mayor __________________________ Amy Domeier, City Clerk 1 HP145\60\740649.v5 BLAKE ROAD STATION PLANNED UNIT DEVELOPMENT AGREEMENT THIS PLANNED UNIT DEVELOPMENT AGREEMENT (“Agreement”) is made this ___ day of _______________, 2021, by and between the CITY OF HOPKINS, a Minnesota municipal corporation, (the “City”), and TF Hopkins, LLC, a Delaware limited liability company (the “Developer”). Recitals A. The Developer owns certain real estate located in the City of Hopkins, Hennepin County, Minnesota, legally described as (See Exhibit A) (the “Property”). B. The Developer has made application to the City for certain land use approvals to facilitate the development of a three-phase mixed-use development with a total of 770 residential units and approximately 11,000 square feet of commercial space (the “Development”). C. To accommodate the Development, the City conditionally approved a rezoning of the Property to Mixed Use/PUD, per Ordinance 2021-1172 (the “Rezoning Ordinance”), adopted by the City Council on August 17, 2021, which is incorporated into this Agreement as if fully set forth herein. D. To accommodate the first phase of the Development, the City conditionally approved a planned unit development site plan for Lot 2, Block 1, Hopkins Commerce Center Addition, PID 19-117-21-42-0045 (the “Site Plan”) per Resolution 2021-043 (the “Site Plan Resolution”), adopted by the City Council on August 2, 2021, which is incorporated into this Agreement as if fully set forth herein. Said first phase includes a seven-story multi-use facility containing 220 apartment units and approximately 2,100 square feet of commercial space. E. The Rezoning Ordinance and the Site Plan Resolution shall be referred to collectively in this Agreement as the “City Approvals.” 2 HP145\60\740649.v5 F. As a condition of the City Approvals, the City required the Developer to enter into a planned unit development agreement, and the parties hereto are willing to be bound by the terms and conditions provided herein to facilitate said first phase. G. Although this Agreement contains certain terms and conditions that will obligate the parties with respect to certain elements of subsequent phases of the Development, it is expressly understood that the Site Plan Resolution, this Agreement, and the PUD Declaration, as defined herein, are only intended to authorize the actual development of the Development’s first phase. The Developer shall be required to obtain site plan approvals for future phases of the Development and, should there be any necessary flexibility provided by the City for said future phases with respect to the City’s Mixed Use District standards, the PUD Declaration shall be amended accordingly. Subsequent planned unit development agreements or amendments to this Agreement may also be necessary, in the City’s discretion, at the time of future phases. Agreement In consideration of each party’s promises as set forth in this Agreement, it is mutually agreed as follows: ARTICLE ONE REPRESENTATIONS AND WARRANTIES 1.01. City Representations and Warranties. The City makes the following representations as the basis for the undertakings on its part contained herein: A. The City is a municipal corporation under the laws of Minnesota. B. The City has the right, power, and authority to execute, deliver, and perform its obligations under this Agreement. 1.02. Developer Representations and Warranties. The Developer makes the following representations as the basis for the undertakings on its part contained herein: A. The Developer is a limited liability company, duly organized and in good standing under the laws of Delaware. B. The Developer has the right, power, and authority to execute, deliver, and perform its obligations under this Agreement. The Developer assures the City that the individuals who execute this Agreement on behalf of the Developer are duly authorized to sign on behalf of the Developer and to bind the Developer thereto. C. The Developer is not in default under any lease, contract, or agreement to which it is a party or by which it is bound which would affect its performance under this Agreement. The Developer is not a party to or bound by any mortgage, lien, lease, agreement, instrument, order, judgment, or decree which would prohibit the execution or performance of this Agreement by the Developer or prohibit any of the transactions provided for in this Agreement. 3 HP145\60\740649.v5 D. The Developer has complied with and will continue to comply with all applicable federal, state and local statutes, laws, ordinances, and regulations including, without limitation, any permits, licenses, and applicable zoning, environmental, or other laws, ordinances, or regulations affecting the Property. The Developer is not aware of any pending or threatened claim of any such violation. Without limitation of the foregoing, the Developer expressly acknowledges and agrees that it has and shall at all times comply with each and every provision of the City’s subdivision, zoning, and other related municipal code regulations. E. There is no suit, action, arbitration, or legal, administrative, or other proceeding, or governmental investigation pending or threatened against or affecting the Developer or the Property. The Developer is not in default with respect to any order, writ, injunction, or decree of any federal, state, local or foreign court, department, agency, or instrumentality. F. None of the representations and warranties made by the Developer or made in any exhibit hereto or memorandum or writing furnished or to be furnished by the Developer or on its behalf contains or will contain any untrue statement of material fact or omits any material fact, the omission of which would be misleading. 1.03 Incorporation of Recitals, City Approvals, and Exhibits. The Recitals set forth in the preamble to this Agreement, the City Approvals, and the Exhibits attached to this Agreement are incorporated into this Agreement as if fully set forth herein. ARTICLE TWO ADDITIONAL PROVISIONS 2.01. Private Improvements. The Developer shall construct and install, at the Developer's expense, the proposed seven-story multi-use facility containing 220 apartment units and approximately 2,100 square feet of commercial space (the “Private Improvements”), according to the following terms and conditions: A. Plans. The Developer shall construct the Private Improvements in accordance with the City Approvals, including the approved Site Plan, and all associated construction plans and documentation (the “Plans”) on or before December 31, 2022. The Plans are those that are on file with the City, prepared by ESG Architecture & Design, dated June 25, 2021. No revisions to or deviations from the Plans that would, in the City’s sole discretion, materially alter the Private Improvements may occur unless first approved by the City in writing. B. Permits. The Developer shall secure all required permits necessary to construct the Private Improvements and provide documentation of such permits to the City, and nothing contained in this Agreement shall be deemed approval of or a substitute for any such permit. 2.02. Additional Requirements. The Developer shall satisfy, complete and abide by all requirements set forth in the City Approvals, the PUD Declaration (as hereinafter defined), and any other adopted City ordinances and resolutions affecting the Property, all of which are incorporated herein by reference as if fully set forth in this Agreement. In doing so, the Developer. shall adequately 4 HP145\60\740649.v5 address all items as may be directed by the City Attorney, the City Engineer or others with review and approval authority for the City with respect to the City Approvals, the PUD Declaration, and any other adopted City ordinances and resolutions affecting the Property. 2.03. Zoning/PUD. Pursuant to the Rezoning Ordinance, the Property was rezoned to Mixed Use/Planned Unit Development. In order to secure the benefits and advantages of the approved planned unit development, the Developer shall execute and record a Declaration of Covenants, Conditions and Restrictions against the Property in the form attached hereto as Exhibit B (the “PUD Declaration”). 2.04. Off-Premise Sign. The Developer is authorized to maintain one off-premise sign on Lot 3, Block 1, Hopkins Commerce Center Addition for the purpose of advertising only the existing business that is located on Lot 1, Block 1, Hopkins Commerce Center Addition. Said sign shall be subject to all other code requirements. When the existing business that is located on Lot 1, Block 1, Hopkins Commerce Center Addition terminates its operations at its present location, the off-premise sign that is allowed in this section 2.04 shall be immediately removed at the Developer’s expense and, thereafter, all signage at the Property must strictly adhere to the then- current City requirements. 2.05. Traffic Signal Improvements. The City, Hennepin County, or both, may decide in the future that certain traffic light and/or traffic signal improvements are necessary at the intersection of Pierce Avenue and Excelsior Boulevard, which is adjacent to the Development’s southwest corner. In the event that the City makes any such improvements, the Developer shall not be obligated to contribute to any costs related thereto, whether by special assessment or otherwise. 2.06. Permits. The Developer shall obtain any necessary permits from the Minnehaha Creek Watershed District, the Minnesota Pollution Control Agency, the Minnesota Department of Natural Resources, the Minnesota Department of Health, the Minnesota Department of Transportation, and any other agency having jurisdiction over the Property before proceeding with construction. 2.07. Park Dedication Fees/Dedications. Although the first phase of the development will not require any portion of the Property to be subdivided, phases two and three will require future subdivisions and, thus, it is contemplated that the City’s park dedication requirements will be triggered. The City agrees that when said phases are platted, the Developer’s park dedication payment (which may be required by the City in lieu of land dedication) will be calculated based on the City’s park dedication fees that are in existence as of the effective date of this Agreement and, unless otherwise agreed to by the parties in the future, said payments shall be made at the time of subdivision of the Property for the second and third phase, as the case may be. 2.08. Stormwater Management Requirements. As part of the Private Improvements, the Developer (or future owners/developers of the Property) shall be responsible for the construction, operation, and maintenance of stormwater management facilities to achieve compliance with applicable stormwater treatment requirements. The Developer (or future owners/developers of the Property) shall be required to execute and record a stormwater declaration in favor of the Minnehaha Creek Watershed District (“MCWD”) to the satisfaction of the MCWD for those 5 HP145\60\740649.v5 stormwater facilities constructed as part of the Private Improvements. The purpose of the declaration is to ensure that the Developer, and future developers/owners of the Property, maintain the stormwater facilities. The declaration shall be recorded against the Property and will run with the land. The Developer acknowledges that i) the City will not accept ownership of the stormwater facilities; and ii) the City does not plan to maintain or pay for maintenance, repair or replacement of the stormwater facilities and that the Developer will have responsibility for such work. 2.09. Financial Guarantee. As part of the Plans, the Developer has agreed to install private landscaping/streetscaping on the Property (collectively, the “Secured Improvements”), which requires financial security to ensure that they are completed with the other Private Improvements. Prior to the issuance of any City-issued permits related to the Private Improvements, including, but not limited to, building permits, the Developer agrees to provide a letter of credit (“Letter of Credit”) to the City in the amount of $282,500.00, which represents 125 percent of the estimated cost of the Secured Improvements. The Letter of Credit shall be delivered to the City prior to beginning any work on the Private Improvements and shall renew automatically thereafter or be replaced with a new letter of credit sixty (60) days prior to the expiration thereof until released by the City. The Letter of Credit shall be issued by a bank determined by the City to be solvent and creditworthy and shall be in a form acceptable to the City. The Letter of Credit shall allow the City to draw upon the instrument, in whole or part, in order to complete construction of any or all of the Secured Improvements upon the Developer’s failure to do so in accordance with the terms of this Agreement. The City may also draw upon the Letter of Credit to pay any fees or costs owed to the City under this Agreement and otherwise unpaid by the Developer upon the lapse of all notice and cure rights of the Developer. It is the intention of the parties that the City at all times have available to it a Letter of Credit in an amount adequate to ensure completion of the Secured Improvements and cost reimbursement to the City by the Developer as required under this Agreement. If at any time the City reasonably determines that the bank issuing the Letter of Credit no longer satisfies the City’s requirements regarding solvency and creditworthiness, the City shall notify the Developer and the Developer shall provide to the City within 30 days a substitute letter of credit from another bank meeting the City’s requirements. If within 30 days of notice the Developer fails to provide the City with a substitute letter of credit from an issuing bank satisfactory to the City, the City may draw under the existing Letter of Credit. Upon the Developer’s failure to either complete the Secured Improvements, pay any fees or costs owed to the City under this Agreement, or both, the City may draw on the Letter of Credit in order to satisfy such requirements but only after the Developer fails to cure its breach following ten (10) days’ written notice from the City. In the event that the Letter of Credit is found to be deficient in amount to pay or reimburse the City in total as required herein, the Developer agrees that upon being billed by the City, it will pay within thirty (30) days of the mailing of said billing, the said deficient amount. If there should be an overage in the amount of the utilized Letter of Credit, the City will, upon making said determination, refund to the Developer any monies, without interest, which the City has in its possession which are in excess of the actual costs owed to the City hereunder. In the event the Developer files bankruptcy or in the event a bankruptcy proceeding is filed against Developer by others and is not dismissed within 60 days, or in the event a court appoints a receiver for the Developer, the City may draw on the Letter of Credit in its full amount to secure its 6 HP145\60\740649.v5 surety position. The City shall then release the remainder of said Letter of Credit to the bankruptcy court or receiver in the same manner that it would be required to release the Letter of Credit under this Agreement. When reasonably prudent, the Developer may request of the City that the Letter of Credit be proportionately reduced for portions of completed obligations herein. All such reductions shall be in the sole discretion of the City. It is the intention of the parties that the City at all times have available to it a Letter of Credit in an amount adequate to ensure completion of all elements of the Secured Improvements and the reimbursement of City costs required under this Agreement. To that end and notwithstanding anything herein to the contrary, all requests by the Developer for a reduction or release of the Letter of Credit shall be evaluated by the City in light of that principle. The costs incurred by the City in processing any reduction request shall be billed to the Developer and paid to the City within thirty (30) days of billing. 2.10. Payment of City Costs. The Developer agrees to reimburse the City its actual costs regarding: (i) preparing and administering this Agreement and all other documents, permits, and applications related to the Blake Road Station development; (ii) processing the approvals relating to the development of the Property; (iii) any other cost expressly required under or related to this Agreement. In addition to and without limitation of the foregoing, the costs to be reimbursed by the Developer to the City shall include, but not be limited to, attorneys’ fees, engineering fees, inspection fees, and the costs and fees of other technical and professional assistance (including but not limited to the cost of City staff time) incurred or expended by the City on activities arising out of this Agreement and other undertakings related thereto. The Developer shall, upon request by the City, pay such costs to the City within 15 days of such request. In the event the City does not recover any costs under the provisions of this section 2.10, as an additional remedy, the City may, at its option, assess the Property in the manner provided by Minnesota Statutes, chapter 429, and the Developer hereby consents to the levy of such special assessments without notice or hearing and waives its rights to appeal such assessments pursuant to Minnesota Statutes, section 429.081, provided the amount levied, together with the funds deposited with the City under this section, does not exceed the expenses actually incurred by the City. Further, the City may, at its option, as an additional remedy, recover expenses actually incurred by the City, in the manner provided by Minnesota Statutes, sections 415.01, 366.011 and 366.012, and the Developer hereby consents to the levy of such assessments without notice or hearing and waives its rights to appeal such assessments pursuant to such Minnesota Statutes, provided the amount levied, together with the funds deposited with the City under this section 2.10, does not exceed the expenses actually incurred by the City pursuant to this Agreement. This section 2.10 shall survive termination of this Agreement and shall be binding on the Developer regardless of the enforceability of any other provision of this Agreement. 2.11. Attorneys’ Fees. The Developer agrees to pay the City’s reasonable costs and expenses, including attorneys’ fees, in the event a suit or action is brought by the City against the Developer to enforce the terms of this Agreement. 2.12. Amendment. Any amendment to this Agreement must be in writing and signed by both parties. 7 HP145\60\740649.v5 2.13. Assignment. The Developer may not assign any of its obligations under this Agreement without the prior written consent of the City. 2.14. Agreement to Run with Land. This Agreement shall be recorded among the land records of Hennepin County, Minnesota. The provisions of this Agreement shall run with the Property and be binding upon the Developer and its assigns or successors in interest. Notwithstanding the foregoing, no conveyance of the Property or any part thereof shall relieve the Developer of its liability for full performance of this Agreement unless the City expressly so releases the Developer in writing. Additionally, in the event that all obligations of the Developer contained in this Agreement are duly satisfied, the City shall, upon written request from the Developer or any of its assigns or successors in interest, execute a document releasing the Property from the terms and conditions of this Agreement. The execution and recording of such instrument shall not affect or otherwise alter the PUD Declaration. Any such instrument may be executed by the city manager without city council approval. Prior to the recording of this Agreement or any documents required herein with Hennepin County, the Developer agrees to provide the City with a signed consent from any other entity with a legal interest in the Property, including but not limited to any entity with a mortgage interest. Further, the Developer shall provide the City with evidence, which sufficiency shall be determined by the City, in its sole discretion, that all documents required to be recorded pursuant to this Agreement are recorded and all conditions related to the City Approvals have been met prior to the City processing or approving any building permits or other permits applicable to the development of the Property. The City Approvals are subject to the Developer’s compliance with this section. 2.15. Representatives Not Individually Liable. No official, agent, or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City on any obligation or term of this Agreement. No agent, officer or employee of the Developer shall be personally liable to the City, or any successor in interest, in the event of any default or breach by the Developer on any obligation or term of this Agreement. 2.16. Notices and Demands. Any notice, demand, or other communication under this Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally: (a) as to the Developer: TF Hopkins, LLC 520 W. Erie St., Ste. #100 Chicago, IL 60654 Attn: ___________________ with a copy to: Taft Stettinius & Hollister LLP 2200 IDS Center 80 South 8th Street Minneapolis MN 55402 Attn: Justin P. Weinberg 8 HP145\60\740649.v5 (b) as to the City: City of Hopkins 1010 1st Street South Hopkins, MN 55343 Attn: City Manager with a copy to: Scott J. Riggs, City Attorney Kennedy & Graven, Chartered 150 South 5th Street, Suite 700 Minneapolis, MN 55402 or at such other address with respect to either such party as that party may, from time to time, designate in writing and forward to the other as provided in this section 2.16. 2.17. Disclaimer of Relationships. The Developer acknowledges that nothing contained in this Agreement nor any act by the City or the Developer shall be deemed or construed by the Developer or by any third person to create any relationship of third-party beneficiary, principal and agent, limited or general partner, or joint venture between the City and the Developer. 2.18. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. 2.19. Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. Any disputes, controversies, or claims arising out of this Agreement shall be heard in the state or federal courts of Minnesota, and all parties to this Agreement waive any objection to the jurisdiction of these courts, whether based on convenience or otherwise. 2.20. Indemnification. Notwithstanding anything to the contrary in this Agreement, the City, its officials, agents, and employees shall not be liable or responsible in any manner to the Developer, the Developer’s successors or assigns, the Developer’s contractors or subcontractors, material suppliers, laborers, or to any other person or persons for any claim, demand, damage, or cause of action of any kind or character arising out of or by reason of the execution of this Agreement or the performance of this Agreement. The Developer, and the Developer’s successors or assigns, agree to protect, defend and save the City, and its officials, agents, and employees, harmless from all such claims, demands, damages, and causes of action and the costs, disbursements, and expenses of defending the same, including but not limited to, attorneys’ fees, consulting engineering services, and other technical, administrative, or professional assistance except with respect to matters of gross negligence or willful misconduct of the City or its officials, agents, or employees. Nothing in this Agreement shall constitute a waiver or limitation of any immunity or limitation on liability to which the City is entitled under Minnesota Statutes, chapter 466 or otherwise. This section 2.20 shall survive termination of this Agreement with respect to matters first arising prior to such termination and shall be binding on the Developer regardless of the enforceability of any other provision of this Agreement. 2.21. Developer’s Default. In the event of an uncured default by the Developer as to any work 9 HP145\60\740649.v5 or undertaking required by this Agreement, the City may, at its option, (i) refuse to issue building permits, certificates of occupancy, or other City approvals for the Property until such time as such default has been cured; or (ii) perform any work required under this Agreement, and the Developer shall promptly reimburse the City for any expense incurred by the City related thereto. This Agreement is a license for the City to enter onto the Property and act in accordance with the terms of this Agreement, and it shall not be necessary for the City to seek an order from any court for permission to enter the Property for such purposes. If the City does any such work, the City may, in addition to its other remedies, levy special assessments against the Property to recover the costs thereof. For this purpose, the Developer, for itself and its successors and assigns, expressly waives any and all procedural and substantive objections to the special assessments, including, but not limited to, hearing requirements and any claim that the assessments exceed the benefit to the land so assessed. The Developer, for itself and its successors and assigns, also waives any appeal rights otherwise available pursuant to Minnesota Statutes, section 429.081. 2.22. Compliance with Existing Laws. The Developer warrants that all work performed pursuant to this Agreement shall be in compliance with existing laws, ordinances, pertinent regulations, standards, and specifications of the City. 2.23. Building Permits. The City Approvals and this Agreement do not include approval of any building permits for any structures on the Property. The Developer must submit and the City must approve building plans prior to an application for a building permit for a structure on the Property. The Developer or the parties applying for the building permit shall be responsible for payment of the customary fees associated with the building permits and other deferred fees as specified in this Agreement. In addition to all other remedies, permits may be withheld if the Developer is in violation of any of the terms of this Agreement. 2.24. City’s Access. The Developer hereby grants the City, its agents, employees, officers and contractors a non-revocable license to enter the Property to perform any work and inspections deemed appropriate by the City related to any of the Developer’s obligations contained in this Agreement. Such license shall terminate upon the issuance of a certificate of occupancy for all improvements contemplated as part of the first phase and the City’s final approval of the Secured Improvements. 2.25. Developer Financial Assistance Request. The initial expectation for this Development was to not rely on any City financial subsidy. However, over the time it has taken to put the Development together, several factors have caused an increase in the project budget to the point the Developer has indicated that the Development is not financially feasible without City assistance. As a result of these circumstantial changes, the Developer submitted an application to the City for financial assistance to support the Development in the amount of $1.831 million for the first phase and $7.758 million for all three phases. There are several factors cited that have contributed to the financial gap in the project including environmental remediation, escalating lumber costs, design changes and other project changes. It has been determined that some additional financial assistance is necessary for the Development to move forward, particularly for assistance tied to the environmental remediation necessary for the first phase of the Development. The City and the Developer were successful in obtaining a 10 HP145\60\740649.v5 clean-up grant through DEED totaling $340,521. The total costs of environmental remediation, demolition and related costs for the first phase are $1,111,188, leaving a balance of $685,000 after adjustments are made. Providing environmental remediation assistance to the Developer for these costs brings the Development and Property to a level field similar to a greenfield site or other sites without significant environmental issues. The City, through the Housing and Redevelopment Authority of Hopkins (the “HRA”), has authorized the providing of a forgivable loan to the Developer in the amount of $685,000 for the first phase of the Development. Funds for the forgivable loan would be provided through excess Tax Increment Financing (TIF) from the 2-11 TIF District as these funds are eligible expenditures for redevelopment and environmental remediation. A separate forgivable loan agreement, including a note and mortgage (the “Loan Agreement”) will be provided that is conditioned on the Development receiving all land use approvals. The forgivable Loan Agreement would be forgiven after 10 years,but would be required to be paid back if the Property was sold or transferred within the initial 10-year period of the Development. In addition to the Loan Agreement, the Developer and the City intend to pursue environmental clean-up funds for the second and third phases of the Development, estimated to cost $1.95 million. If such efforts are not successful in obtaining grant funds for the estimated total cost, less required developer match, the Developer has requested City assistance to bridge those potential future financial gaps. Both the City and HRA are supportive of considering assistance for future environmental costs, if necessary. As the second and third phases of the Development are brought forward for site plan approval, the Developer may revisit the opportunity to work with the City and HRA to shape further development of the Property that meets community goals, and as a result, revisit the Developer’s request for additional financial assistance, as it is merited. 2.26. Commercial Tenant Notice of Subsequent Phases. The Developer understands and acknowledges that the contemplated second and third phases of the Development, when those phases are implemented, will have a significant impact on existing commercial tenants that have their businesses located on the Property given the Developer’s plan to demolish the existing structures. Because of that impact, the Developer agrees to provide said commercial tenants that have leases for businesses located on the Property at the time of execution of this Agreement with at least 180 days’ written notice of its intent to make application to the City for land use entitlements necessary for said second and third phases, including, but not necessarily limited to, site plan and subdivision applications. Should the Developer fail to strictly adhere to the 180-day notice requirement contained in this section 2.26, the City shall have no obligation to adhere to the express requirements and City commitments contained in sections 2.05, 2.07, and 2.25 of this Agreement. 11 HP145\60\740649.v5 2.27. Miscellaneous Provisions. A. The Developer represents to the City that the development of the Property will comply with all city, county, state, and federal laws and regulations including, but not limited to: subdivision ordinances, zoning ordinances and environmental regulations. If the City determines that the development of the Property does not comply, the City may, at its option, refuse to allow construction or development work on the Property until the Developer does comply. Upon the City’s demand, the Developer shall cease work until there is compliance. B. Third parties shall have no recourse against the City under this Agreement. C. An ongoing default by the Developer under the terms of this Agreement shall be grounds for denial of building permits or certificates of occupancy until any such defaults are cured by the Developer. D. Wherever possible, each provision of this Agreement and each related document shall be interpreted so that it is valid under applicable law. If any provision of this Agreement or any related document is to any extent found invalid by a court or other governmental entity of competent jurisdiction, that provision shall be ineffective only to the extent of such invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or any other related document. E. No failure by any party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach of any other covenant, agreement, term, or condition, nor does it imply that such covenant, agreement, term, or condition may be waived again. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Agreement. To be binding, amendments or waivers shall be in writing and signed by the parties. The City’s failure to promptly take legal action to enforce this Agreement shall not be a waiver or release. G. Each right, power, or remedy herein conferred upon the City is cumulative and in addition to every other right, power, or remedy, express or implied, now or hereafter arising, available to the City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein set forth or otherwise so exciting may be exercised from time to time as often and in such order as may be deemed expedient by the City and shall not be a waiver of the right to exercise at any time thereafter any other right, power, or remedy. H. This Agreement, together with the exhibits hereto, which are incorporated by reference, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to this Agreement, superseding all prior or contemporaneous proposals, communications, and understandings, whether oral or written, pertaining to the subject matter of this Agreement. I. No official, agent, or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City on any 12 HP145\60\740649.v5 obligation or term of this Agreement. J. Data provided to the Developer or received from the Developer under this Agreement shall be administered in accordance with the Minnesota Government Data Practices Act, Minnesota Statutes, chapter 13. [The remainder of this page to remain intentionally blank]. 13 HP145\60\740649.v5 IN WITNESS OF THE ABOVE, the parties have caused this Agreement to be executed on the date and year written above. THE CITY: By: ____________________________________ Jason Gadd Mayor By: ____________________________________ Michael Mornson City Manager STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this ___ day of ________________, 2021, by Jason Gadd and Michael Mornson, the Mayor and City Manager, respectively, of the City of Hopkins, a Minnesota municipal corporation, on behalf of the City. ____________________________________ Notary Public 14 HP145\60\740649.v5 THE DEVELOPER: TF HOPKINS LLC By: _______________________________ Its: _______________________________ STATE OF MINNESOTA ) ) SS. COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this __ day of ________________, 2021, by ______________, the _______________ of TF Hopkins LLC, a Delaware limited liability company, by and on behalf of said company. __________________________________ Notary Public This document drafted by: KENNEDY & GRAVEN, CHARTERED 150 South 5th Street, Suite 700 Minneapolis, MN 55402 (612) 337-9300 A-1 HP145\60\740649.v5 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY The land to which this Agreement applies is legally described as follows: Lots 1 through 3, inclusive, Block 1, Hopkins Commerce Center Addition, Hennepin County, Minnesota. B-1 HP145\60\740649.v5 EXHIBIT B FORM OF DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS BLAKE ROAD STATION (SITE A) PLANNED UNIT DEVELOPMENT THIS DECLARATION made this ___ day of ______________, 2021, by TF Hopkins, LLC, a Delaware limited liability company (hereinafter referred to as the “Declarant”); WHEREAS, Declarant is the owner of the real property as described below (hereinafter referred to as the “Subject Property”): Lot 2, Block 1, Hopkins Commerce Center Addition, Hennepin County, Minnesota; and WHEREAS, the Subject Property is subject to certain zoning and land use restrictions imposed by the City of Hopkins, Minnesota ("City") in connection with the approval of an application for a mixed-use planned unit development on the Subject Property and surrounding parcels; and WHEREAS, the City has approved the first phase of such development to be located on the Subject Property, including the required site plan approval, on the basis of the determination by the City Council of the City that such development is acceptable only by reason of the details of the development proposed and the unique land use characteristics of the proposed use of the Subject Property; and that but for the details of the development proposed and the unique land use characteristics of such proposed use, the planned unit development would not have been approved; and WHEREAS, as a condition of approval of the first phase of the planned unit development, the City has required the execution and filing of this Declaration of Covenants, Conditions and Restrictions (hereinafter the “Declaration”); and B-2 HP145\60\740649.v5 WHEREAS, to secure the benefits and advantages of approval of such first phase, the Declarant desires to subject the Subject Property to the terms hereof. NOW, THEREFORE, the Declarant declares that the Subject Property is, and shall be, held, transferred, sold, conveyed and occupied subject to the covenants, conditions, and restrictions, hereinafter set forth. 1. The use and development of the Subject Property shall conform to the following documents, plans, drawings, and requirements: a. The plans (“Plans”), prepared by ESG Architecture & Design, dated June 25, 2021, the sheets of which are specified on Attachment One hereof. Original documents are on file with the City and are made a part hereof. It is expressly acknowledged and understood that the first phase is referenced in said Plans as “Site A,” and this Declaration only relates to said Site A. b. In exchange for the flexibility provided by the City as part of the approved planned unit development to be located on the Subject Property, the Developer has agreed to provide the elements contained in the Plans, as related to Site A, including, but not necessarily limited to, densities that are more transit-supportive and more consistent with the City’s 2040 Comprehensive Plan than the City’s Mixed Use District requirements; enhanced pedestrian scale architecture in the form of walk-up style units on the north and east side of Site A; enhanced stormwater management features; enhanced landscaping; porous pavement integrated into the streetscape; bicycle amenities; and 12 electric vehicle charging stations with capacity for eight additional stations. c. The improvements on the Subject Property will be constructed so that they are solar-ready in the event it is deemed practical to install photovoltaic panels in the future. d. The improvements on the Subject Property will maintain enrollment in the Xcel Energy Efficient Building Program (EEB) unless and until said program is otherwise terminated. B-3 HP145\60\740649.v5 2. The Subject Property may only be developed and used in accordance with all requirements of the City’s Mixed Use District, except for those deviations contained in the Plans or otherwise outlined herein, and all other requirements contained in Paragraph 1 of this Declaration, unless the owner first secures approval by the City Council of an amendment to the planned unit development plan or a rezoning to a zoning classification that permits such other development and use. 3. In connection with the approval of development of the Subject Property (Site A), the following deviations from the City’s land use regulations, to the extent contained in the Plans, were approved: PUD Approved Deviations on Subject Property (Site A) Category Mixed Use Requirement Approved Deviation for PUD Building Height Requirements 6 Stories 7 Stories Front Setback 15’ – 25’ 8’ Side Setback (East) 10’ 28’ Side Setback (West) 10’ 6’ Rear Setback 10’ 0’ Parking Stall Dimensions 9’ X 18’ or 8.5’ X 16’ As Contained in Plans (Site A) Building Façade Articulation 25’ – 40’ As Contained in Plans (Site A) Exterior Building Materials >80% Primary Exterior Treatment As Contained in Plans (Site A) In all other respects the use and development of the Subject Property shall conform to the requirements of the Paragraphs 1 and 2 of this Declaration and the City Code of Ordinances. 4. The obligations and restrictions of this Declaration run with the land of the Subject Property and shall be enforceable against the Declarant, its successors and assigns, which successors and assigns shall be jointly and severally responsible for obligations under this Declaration, by the City of Hopkins acting through its City Council. This Declaration may be amended from time to time by a written amendment executed by the City and the owner or owners of the lot or lots to be affected by said amendment. B-4 HP145\60\740649.v5 IN WITNESS WHEREOF, the undersigned as duly authorized agents, officers or representatives of Declarant have hereunto set their hands and seals as of the day and year first above written. DECLARANT: TF HOPKINS LLC By: _______________________________ Its: _______________________________ STATE OF MINNESOTA ) ) SS. COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this __ day of ________________, 2021, by ______________, the _______________ of TF Hopkins LLC, a Delaware limited liability company, by and on behalf of said company. __________________________________ Notary Public This document drafted by: KENNEDY & GRAVEN, CHARTERED 150 South 5th Street, Suite 700 Minneapolis, MN 55402 (612) 337-9300 B-A-1 HP145\60\740649.v5 Attachment One The following documents prepared by ESG Architecture & Design, as revised June 25, 2021, and to the extent that they address Site A, collectively constitute the Plans: