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CR 2004-148 PUD Agreement-Former Hopkins House Hotel C\iY Dr- . . September 2, 2004 HOPK\NS Council Report 04-148 pun AGREEMENT - FORMER HOPKINS HOUSE HOTEL Proposed Action. Staff recommends the following motion: Move to approve a PUD agreement to redevelop the fonner Hopkins House Hotel into 48 condo units and six townhomes. With this action is it understood that staff is authorized to make minor changes that do not impact the overall intent of this agreement. Overview. As part of the rezoning to R-5 PUD of the former Hopkins House Hotel, a PUD agreement has been drafted. The site is will be rezoned R-5 PUD. and the rezoning wiI1 allow the redevelopment of the site to 48 condos and six townhomes. The agreement outlines the tenns and conditions for this specific development. If for some reason this development does not take place, the site reverts to the base zoning of B-3, General Business. The basic agreement is similar to other PUD agreements that the City Council has approved. tilt The PUD agreement, as presented, was prepared by JeITY Steiner of the City Attorney's office. Primary Issues to Consider. . What will the PUD agreement allow to be constructed on the site? . What are the main points of the agreement? Supportin2 Documents. . PUD Agreement ^ i"\b \(1 \" _ _c. ILl. ~ '-: \ (:j{ [ '(. )(., I \ NallC S. Anderson, AICP Planner Financial Impact: $_N/A_ Budgeted: Y/N _ Source: - Related Documents (eIP, ERP, etc.): Notes: - .- - ..., CR04-l48 Page 2 . Primary Issues to Consider. . What will the pun agreement allow to be constructed on the site? The PUD agreement will allow the construction of 48 condos and six townhomes. . What are the main points of the agreement? . The project will be developed in compliance with the plans . Any improvements will be constructed according to City codes and ordinances . Any improvements on City-owned land will be transferred to the City of Hopkins . Developer warrants City improvements for two years . The Developer reimburses the City for out-of pocket costs for development . Developer agrees to restrict the use of the B-3 property Altern atives. l. Approve the PUD agreement. By approving the PUD agreement, Mathwig Development and the City agree to the requirements of the R-5 PUD zoning. . 2. Deny the POD agreement. By denying the PUD agreement, the former Hopkins House Hotel site will not be redeveloped into condos and townhomes. If the City Council considers this alternative, findings will have to be identified that support this alternative. 3. Continue for further infon11ation. If the City Council indicates that further inforn1ution is needed, the item should be continued. -. - --.., . Draft Dated 8/18/04 Miller, Steiner & Curtiss, P.A. DEVELOPMENT AGREEMENT This Development Agreement (this "Development Agreement") is made and executed this day of , 2004, by The Crossroads of Minnesota LLC, a Minnesota limited liability company, ("Developer"), and the City of Hopkins, a municipal . corporation under the laws of Minnesota ("City"). RECIT ALS A. Developer is 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 for approval of a Site Plan for development and constmction of a single story commercial building on the Real Property, together with related parking and access improvements (the "Project") and for approval of a plat of the Real Propeliy known as Crossroads Addition (hereinafter referred to as the "Plat"). The City has approved the Site Plan for the Project and the Plat, but upon and subject to the agreements, ten11S, covenants and conditions of this Development Agreement. ..... - ...... .... C. On September 7, 2004, the City Council of the City adopted Resolution 04- . approving the Site Plan for the Project and Resolution 04- approving the Plat. As a condition of such approvals, the City has required Developer to execute and record this Development Agreement and to comply with and perform all of the agreements, tenns, covenants, conditions and restrictions hereof. Developer has agreed: i) to accept such agreements, temIs, covenants, conditions and restrictions, ii) to execute this Developrm:nt Agreement, and iii) to record this Development Agreement as a servitude upon the title to the Real Property. D. Minn. Stat. 462.358, Subd. 2a, and Section 526.02 of the Hopkins City Code provide the City may require the Developer to enter into a Development Agreement stating the tell11S and conditions for the City's approval of the Plat and the Site Plan for the Project. The City has required Developer to enter into this Development Agreement under the authority tit provided in said Statute and Ordinance. NOW, THEREFORE, in consideration of the foregoing Recitals and the approval of the Site Plan for the Project and the Plat, Developer agrees to the terms and conditions stated in this Development Agreement and declares that all of the Real Property, shall be held, transfened, 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 pari ofthis Development Agreement in their entirety. 2. Development Improvements. Developer sl1aJI construct, install, complete: and pay for the work, labor, materials, facilities and improvements required for the development of the - ..... - ... c: Hupcivil\MulhwigPLJD2nd 2 . Project, including all of the facilities and improvements described in Plans identified in Paragraph 3 of this Development Agreement, all of which work, labor, materials, facilities and improvements are herein collectively refeITed to as the "Improvements." The Improvements shall be completed in accordance with: i) the Plans defined and identified in Paragraph 3 of this Development Agreement; and ii) all of the other terms of this Development Agreement. Developer's obligation to construct, install and pay for the Improvements shall include completion of and payment for any and all labor, skill, material, equipment and other work required during the course of construction to complete the Improvements in compliance with the requirements of this Development Agreement. 3. Identification of and Compliance With Plans. The Real Propeliy and the Project shall be developed and the Improvements constructed and completed in accordance with . the following plans which are herein collectively referred to as the "Plans." The Plans shall not be attached to this Development Agreement. If any of the Plans are designated as "Preliminary", such Planes) shall, subject to City approval, be modified, at Developer's expense, after the date of this Development Agreement to be suitable for final construction purposes before commencement of any of the work described or depicted in the Plan in question or issuance of a building permit for the work depicted in such Plan. At sLlch time as a preliminary Plan has been replaced by a final Plan approved by the City, all references in this Development Agreement to such Plan shall refer to the final Plan. In the event of any conflict or inconsistency between the Plans and the provisions of this Development Agreement, the provisions of the Plans shall control. The Plans are: Description of Plan Plan A Final Plat prepared by , as approved by the City - - -,.,- <: _Hope ivil\MathwigPU D2nJ 3 . Council on ,2004 mB Grading, Drainage Plan and Erosion Control Plan prepared by , dated ,2004. 1I1C Landscape Plan prepared by , dated ,2004. Plan D Utility Plans and Detail Sheet prepared by , dated ,2004. Plan E Stolln Water Management Plan prepared by , dated ,2004. Plan F Site Plan prepared by , dated ,2004. 4. Additional Improvements. [intentionally omitted] 5. Construction Standards and Procedures. The Improvements shall be constructed and installed in accordance with the final Plans, City standards, codes, regulations . and ordinances. All plans and specifications for the Improvements shall be prepared and cCl1ified by a registered professional engineer or engineers, and shall be furnished to the City and approved by the City Engineer prior to issuance of a Pennit for the work depicted in such plans. In cOlmection with the constmction of the Improvements, Developer shall restore all City streets, utilities and other public facilities and property disturbed or damaged as a result of Developer's construction activities to substantially the same condition as existed prior to commencement of construction. Within sixty (60) days after the completion of the Improvements, Developer shall supply the City with the following relating to the Improvements: (a) a complete set of reproducible mylar as-built plans, (b) two complete sets of utility tie sheets, (c) location stationing and swing Lies of all utility stubs, (d) benchmark network and (e) digital as-builts conforming with the -- -..- c: Hopcivi 11M athwigl'l J D21ld 4 . following requirements: (i) Digital Files in Microstation DGN Fonnat in NAD 83 Hem1epin County Ground Coordinates. (ii) All Cell Libraries and Line Styles shall be included. (i ii) Level stmcture shall confonn to cUITent Hopkins Level Structure. 6. License. Developer hereby grants the City, its agents, employees and inspectors a license to enter the Real Property, as necessary, to perform all work and inspections deemed appropriate by the City in conjunction with construction of the Improvements. Such license shall tell11inate upon completion of the Improvements, as evidenced by final inspection and approval thereofby the City Engineer and building official. 7. Improvements to be Transferred to City. Upon completion of construction of the Improvements, and final acceptance and approval of the Improvements by the City, all of the tilt streets, curbs and gutters, sidewalks, trails, underground utilities or drainage facilities and other public improvements that are pari of the Improvements which are located within or upon any public easements, including drainage and utility easements, public streets or other rights-of-way or other City-owned land and any landscaping improvements located within or upon any public streets or other rights of way or other City-owned land shall become the sole propcliy of the City. Those Improvements that are to become the sole property of the City as provided in the first sentence of this Paragraph 7 are herein referred to as the "City Improvements." Developer shall transfer the City Improvements to the City free and clear of all liens and encumbrances. At such time as the City Improvements have been completed, representatives of Developer's contractors, and a representative of Developer's Engineer will make a final inspection of the City Improvements with the City Engineer. The City Engineer shall be entitled - - - .... c: ]-jopcIII1\M allllvigPUD2nd 5 . to review and approve any punch list items or lists of incomplete or defective work comprising the City Improvements to be submitted by Developer or its representatives to the contractor(s) responsible for completion of the City Improvements to assure that the same are completed in accordance with the requirements of this Development Agreement. As a condition of its acceptance of title to any of the City Improvements, the City shall receive from Developer written evidence, in form and content reasonably acceptable to the City, that Developer has caused all incomplete or defective work to be completed or con-ected 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 Development Agreement and that Developer has made payment in full for all of the work comprising the City tilt Improvements. Final acceptance of the City Improvements by the City shall be evidenced by a resolution duly adopted by the City Council of the City, which approval shall be granted if Developer is in full compliance with all of the tenns, conditions, agreements, and requirements of this Development Agreement. 8. Warranty. Developer walTants that all work comprising the City Improvements shall be free fi'om 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 wan-anted 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 oflandscaping improvements) shall be repaired - ...-,. -., c: Hopcivll\M atJnvigPU D211d 6 . or replaced by Developer at Developer's sole expense. 9. Reimbursement of Costs to City. Developer shall reimburse the City for all out- of-pocket costs incurred by the City in connection with the preparation, negotiation and execution of this Development Agreement, construction of the Improvements and the administration, perfon11ance and enforcement of this Development 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 Development Agreement, including, without limitation, traffic, development, fiscal, enviroillnental, geotechnical, surveying, engineering, and legal services of the City Attorney, which are to be reimbursed at the rate of $200.00 per hour, and are subject to increases of no more than 5% per sL year, on January I of each year. Such reimbursements from Developer shall be due and payable . within ten (10) business day of delivery of a copy of the invoice or statement therefor to the Developer, and shall bear interest at the rate of one percent (1 %) per month, if not paid by Developer within thirty (30) days of the date the applicable invoice or statement has been deli vered to Developer. 10. Other Governmental Approvals. Developer shall obtain, all required approvals and/or pennits from the Minnesota Pollution Control Agency, Hennepin County, the Minnehaha Creek Watershed District, Minnesota Department of Health, Metropolitan Council Environmental Services Division and any other governmental authorities whose approval is required for the construction of the Improvements and development of the Project on the Real Prope11y. Developer shall maintain all such required pem1its and comply therewith at all times. 11. Time of Performance. Developer shall commence construction of the - ..-.. -W c:llopcivil\MathwigPUD2nu 7 . Improvements as soon as reasonably possible after execution of this Development Agreement by Developer and the City and shall substantially complete construction of the Improvements within 24 months of commencement of constmction . 12. Additional Conditions, Restrictions and Requirements. Developer agrees that the Improvements shall be completed and the Real Property shall be developed, held, transfelTed, occupied, used and improved subject to and in compliance with the following requirements and additional terms and conditions: A. All stonn drainage and other related drainage facilities depicted in the Plans shall also be constructed by Developer, at Developer's sole expense, in accordance with the temlS and conditions of this Development Agreement and any additional terms and conditions reg uircd by the Minnehaha Creek Watershed District. tilt B. The Developer will execute the required form of Access and Right-of-Entry Agreement or similar agreement in favor of the City or the Minnehaha Creek Watershed District relating to the maintenance and repair of any storm drainage and stonn \-vater retention improvements constructed on the Real Property that are connected to the municipal st01111 sewer system. Such Access and Right-of-Entry Agreement will be executed by the Developer, consented to by any lien holders, recorded as an encumbrance against the title to the Real Propcliy and require Developer and its successors and assigns to repair and maintain the stolln drainage and stonn water retention improvements in perpetuity. C. The Developer shall provide evidence of title to the Real Property and any property over which public easements are to be obtained to the City. Such evidence of title shall be acceptable to the City Attorney. ~ ..... -w c. Hopci vi l\MathwigP! JD2nd 8 . D. The Final Plans shall be acceptable to and approved by City Staff and shall incorporate all revisions and requirements of the City's Planning Department and Director of Public Works that are communicated to Developer in writing. E. No final Certificate of Occupancy shall be issued for the commercial building comprising the Project until all of the Improvements, with the exception of the final lift of asphalt and any landscaping constituting a part of the Improvements, have been substantially completed in compliance with the requirements of the Plans and this Development Agreement. F. As provided in Paragraph 3 of this Development Agreement, all Plans, including any preliminary or final plans, shall be submitted for approval by City Staff. If Developer proposes any changes to the Plans, new or revised conditions for constmction of Improvements may be imposed upon Developer, based upon revisions to any Plans. All future plans must be tilt signed by the consultant preparing the same, and shall include revision dates. G. A park dedication fee in an amount determined as specified in City Ordinance 500.75, Subd. 7, shall be due and payable at the time of execution and release of the final Plat by the City, as a condition of execution of the Plat. H. The Plans must clearly state that the contractor(s) retained by Developer to construct the Improvements will be responsible for all utility locates and Gopher State One call requirements. 1. Any request for closure of any City street by Developer must be accompanied by a detailed traffic control and detour plan acceptable to City Staff. J. Any soil retaining system installed by Developer within the right of way of any public street must be temporary in nature and must be removed after completion of construction, - ..... -w c: Hopciv II\Math wigPUD2nd 9 . all at Developer's sole expense. K. All parking lot lighting and street lighting to be installed by Developer must be shown on the final Plans. The design and location of such lighting must be approved by and acceptable to City Staff. L. The following uses shall be prohibited within any part of the Real Property, as either primary or accessory uses, whether or not the same are pennitted by the underlying B-3 zoning: automobiles sales or leasing, automobile repair or body shop, adult establislmlents, adult motion picture theater, adult novelty business or book store, 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, warehouse, taxi tenninal, tatoo parlor, cUITency exchange or tobacco shop. If any of the words and phrases used in the preceding sentence are . defined in the Hopkins Code of Ordinances, such words and phrases shall have the same meanings stated in the Hopkins Code of Ordinances. M The Site Plan approval for the Project includes a drive-through window for a co (Tee shop use. With the exception of such drive-through coffee shop use, no drive-through restaurant use shall be pemlitted on the Real Property in the future, whether or not the same is permitted by the underlying B-3 zoning, without obtaining approval of an amendment to the original Site Plan approval from the City upon the tenns and conditions stated in Section 526 of the Hopkins Code of Ordinances, including submission of a traffic study to the City at Developer's expense. N. It is a condition of the City's approval of the Plat and the Site Plan for the Project that all access, driveway and parking easements benefitting the Real Property and established by -- - -..... c:I-ILlPClvjl\MulhwjgPt JD2nd 10 . the Reciprocal Easement Agreement with Covenants, Conditions and Restrictions recorded as Hennepin County Registrar of Titles Document No. 3511140 shall remain in effect for the benefit of the Real Property. O. Developer shall dedicate and/or transfer to the City pennanent public drainage and utility easements as shown on the final Plat. Such easements shall be established either by dedication in the Plat or by conveyance to the City from Developer. P. As provided in Paragraph 22 of this Development Agreement, all paved surfaces and utilities constructed within the Real Property including all of the Improvements, other than the City Improvements, shall be private, and the City shall have no responsibility for the operation, maintenance or repair of any such private paved surfaces, utilities or Improvements. Q. All City water meters shall be located in a designated meter room vault, accessible and designed and installed in such a manner that they can be read by the City's radio . read system. R. The Developer shall otherwise comply with all conditions stated in City Council Resolutions R 04- and R 04- ~; and with the requirements of any applicable statutes, ~ ordinances, codes or regulations, including the City's Engineering Guidelines. S. In the event Developer has not commenced construction of the Project, as evidenced by issuance of a building pemlit for construction of all or any part of the Project, by September 7, 2005, the City's approval of the Site Plan for the Project shall temlinate and be rescinded, and Developer shall be prohibited from proceeding with construction of the Project unless Developer has obtained approval from the Hopkins City Council for extension of the Site Plan approval, which approval may be withheld or granted in the City's sole discretion_ . c. 1-lupcivil\MatlnvlgPU D2nd 11 . 13. Compliance With Other ReQuirements, Assignment bv Developer, Termination. Developer agrees that it shall complete the Improvements in compliance with this Development Agreement, the conditions listed in the City Council Resolutions identified in Recital Paragraph C of this Development Agreement and the provisions of the City's Code of Ordinances. The te1111s, conditions and restrictions established by this Development Agreement shall run with the title to the Real Property and apply to and bind the Developer and each and every subsequent owner of any part of the Real Property and their respective successors and assigns, and shall operate as a covenant passing with the title to the Real Property and any pmi thereof. All of said terms, conditions and restrictions arc imposed upon the Real Property as a servitude in favor of the City of Hopkins, Minnesota, for its benefit only. The Developer shall not assign . its rights or obligations under this Development Agreement without the prior written approval of the City, which approval may be withheld or granted subject to or based upon reasonable te1l11S and conditions. Developer shall not otherwise assign its rights or obligations under this Development Agreement without the prior written approval of the City. The tenns, conditions and restrictions established by this Development Agreement are perpetual in duration except: a) upon satisfactory completion of the City Improvements in compliance with the requirements of this Development Agreement, the City shall execute and deliver to Developer a certificate, in recordable f01111, certifying as to Developer's compliance with the provisions of this Development Agreement applicable to construction of the City Improvements; and b) upon Developer's full compliance with the remaining agreements, walTanties, terms, covenants, conditions and restrictions of this Development Agreement related . c:llopcivil\M;JthwigI'ULJ2nd 12 . to completion of landscaping Improvements, the City shall execute and deliver to Developer, upon written request by Developer, a Celiificate, in recordable fonn, celiifying as to the Developer's compliance with such agreements, warranties, terms, covenants, conditions and restrictions. 14. Security and Claims. To guaranty Developer's compliance with the terms of this Development Agreement, payment of the cost of all Improvements and completion of construction thereof, Developer shall deliver to the City the following Letter(s) of Credit and/or surety bond( s)acceptable to and in favor of the City (the "Security") issued by a bank or surety reasonably acceptable to the City: A. The Security for the landscaping improvements comprising a pmi 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 of the estimated cost of the landscaping improvements, as established by a written estimate submitted by Developer's landscaping contractor. B. The Security for the remammg Improvements, other than landscaping improvements, shall be delivered to the City before commencement of construction of such Improvements or issuance of a pem1it by the City permitting commencement of such construction. The amount of such Security for the remaining Improvements, other than landscaping improvements, shall equal 100 percent of the cost of the Improvements as established by: i) the actual cost of completion of construction of such Improvements as stated in the written contracts or subcontracts for their construction and installation with the contractors or subcontractors retained by Developer or Developer's general contractor (which written contracts . 13 c: Ilopci I'll\MathwigPUD2nd . or subcontracts shall be delivered to the City), or ii) a written estimate from Developer's Engineer approved by the City Engineer. The Security shall be conditioned upon Developer's completion of the Improvements for which the Security is provided, perfomlance of Developer's warranty under Paragraph 8 of this Development Agreement including replacement of any defective or nonconforming Improvements and payment of the entire cost thereof, and the form and content of the Security shall be subject to the reasonable approval ofthe City. Developer shall maintain the Security in effect for a tenn ending two (2) years after the date acceptance of the City Improvements by the City as evidenced by a Resolution duly adopted by the City Council (which latter date is herein referred to as the "Tennination Date"). Developer shall initially deliver to the City the original Security expiring no earlier than one (l) year after the date of delivery of the original Security to . the City. Thereafter, no later than thirty (30) days before the expiration of the Security, Developer shall deliver to the City original written evidence, in form reasonably acceptable to the City, extending the tern1 of the Security for successive one (1) year periods, but in no event extending beyond the Tennination Date. If Developer fails to deliver such original written evidence of extension of the Security at least thirty (30) days before expiration of the Security, Developer shall be deemed to be in default under this Development Agreement and the City may draw upon the Security. With City approval, upon receipt of evidence acceptable to the City of payment of financial obligations related to the constmction of the Improvements, the Security may be rcduced from time to time as financial obligations relating to the construction of the Improvements are paid, but in no case shall the Security be reduced to an amount less than forty percent (40%) of the cost of the City Improvements (such cost to be detennined in the manner . 14 c:llllp~ivil\Mall1wigPUDllld . specified in Subparagraph B ofthis Paragraph 14) until the Termination Date. Notwithstanding the provisions of the preceding sentence, the Security for the landscaping improvements comprising a part of the Improvements may not be reduced, and shall be maintained at its original amount until one (1) year after completion of such landscaping improvements. The City may draw upon or enforce the Security for any violation of the tenns of this Development Agreement which is not cured within ten (10) business days after written notice to the Developer, provided, in the event the default is such that it cmmot be cured with reasonable diligence within ten (10) business days, the City shall not draw upon the Security so long as Developer is proceeding with all due diligence to cure such default and such default is, in fact, cured within thirty (30) days after the initial written notice of default to Developer. If the Improvements (other than the final lift of asphalt) are not completed on , 200_, the City . may also draw upon or enforce the Security. If the Security is drawn upon, the draw shall be used to cure the default (including completion of the Improvements by the City, provided the City shall have no obligation to complete the Improvements) and may also be used to payor reimburse the City for any cost, expenses or damages recoverable under Paragraph 15 of this Development Agreement. The Security shall be released to Developer on the Tennination 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 such laborers, materialmen or others are seeking payment out of the Security or intend to asseli claims against the City, the Improvements or the real property on which the Improvements have been installed, and if such claims are not fully resolved at least ninety (90) days before the Security will expire, Developer hereby authorizes the City to commence an Interpleader action . c :Hopc ivil\M3thwigl'U D2nd 15 . pursuant to Rule 22, Minnesota Rules of Civil Procedure for the District Comts, to draw upon the Security in an amount up to 125 percent of the claims and deposit the amount so drawn with the District Comt Administrator in compliance with said Rule 22, and, upon such deposit, Developer shall release, discharge and dismiss the City from any further proceedings as it pertains to the sums deposited with the District Court Administrator, except that the Comt shall retain jurisdiction to detennine attomeys' fees. Developer agrees that it shall protect, indemnify and hold the City and its agents, representatives and employees harn11ess from and against all costs, damages and liabilities, including reasonable attorneys' fees and Comt costs, resulting from or incuned in connection with Developer's failure to comply with the tenns, covenants, conditions and requirements of this Development Agreement. 15. Enforcement of Development Agreement. The tenns, conditions, requirements . and restrictions established by this Development Agreement shall be enforceable exclusively by the parties to this Development Agreement, and shall be enforceable by injunctive relief, prohibitive or mandatory, to prevent the breach of or enforce perfonllance or observance of the terms, conditions, requirements and restrictions established by this Development Agreement, or by any other available legal proceeding or remedy, including, but not limited to: a. Legal proceedings to recover, collect, payor reimburse the City for the cost of completing constmction of the Improvements. b. All costs and expenses incuned by the City in curing any other default by Developer in the perfollnance of any of the tem1s, covenants and conditions of this Development Agreement. c. All reasonable costs, fees and expenses for engineering, legal and administrative expenses inculTed by the City in enforcing Developer's pcrfo1111ance of this Developmcnt Agreement or the completion of constmction of the Improvements. d. Any other remedy or sanction provided by Milmesota Statutes or the Ordinances . c: IIOJlcivi I\MuthwigPU D2nd 16 . of the City of Hopkins. The City agrees that it shall give Developer written notice and a reasonable opportunity to cure any default by Developer in the perfomlance of its obligations under this Development 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 Development Agreement after thiliy (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 Propeliy. Developer acknowledges that the rights of the City to enforce performance of the tenm, conditions, requirements and restrictions established by this Development Agreement are special, unique, and of an extraordinary character and that, in the event Developer violates or fails or refuses to perfonn any teml, condition or restriction established by this Development Agreement, the City shall have no adequate remedy at law. Developer agrees, therefore, that in the event Developer violates any tenn, condition or restriction established by this Development Agreement, the City, may, at its option, initiate and prosecute an action to specifically enforce the perfonnance of the tenns, conditions and restrictions established by this Development Agreement. No remedy specified in this Development Agreement is intended to be exclusive, and each remedy shall be cumulative, and in addition to each and every other remedy. Failure of . c .1-Inpc ivi I\Malhwigl'lJ D2nd 17 . the City to enforce any of the terms, conditions and restrictions established by this Development 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 attomeys' fees and expenses incLlITed in the enforcement of the tenns, conditions and restrictions of this Development Agreement. 16. Notices. Any notice, request or other communication required or provided to be given under this Development Agreement shall be in writing and shall be deemed to be duly given when delivered personally to an officer, manager, general partner or authorized agent 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: Mathwig Development Co. 5353 Wayzata Boulevard, Suite 208 . St. Louis Park, 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. Severabilitv. Invalidation of any of the temls, conditions, provisions or restrictions of this Development Agreement, whether by Court Order or otherwise, shall in no way affect any of the other terms, conditions, provisions and restrictions, all of which shall remain in full force and effect. 18. Headings. The headings and captions at the beginnings of paragraphs of this . c: Ilopci vi 1\!\1alhwigPUD2nd 18 . Development Agreement are for convenience of reference only and shall not influence its construction. 19. Execution of Coun tel'parts. This Development Agreement may be simultaneously executed in several counterparts, each of which shall be an original, and all of which shall constitute one and the same instrument. 20. Construction. This Development Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota. 21. Evidence of Title and Recordation of Development Aereement. Prior to the execution of this Development Agreement, Developer shall provide the City with evidence of title to the Real Property, at Developer's expense, in the fonl1 of a current Commitment for Owners' Title Insurance or other evidence of title acceptable to the City and in compliance with . Minn. Stat. 505.03. Developer shall cause this Development Agreement to be executed by or consented to by all persons holding any interest in the title to the Real Property, or lien thereon, as deemed necessary by the City. Developer agrees to cause this Development Agreement to be filed for record as a restriction against the title to the Real Property. 22. 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, which responsibility shall not accme until acceptance of the City Improvements by the City, 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, reconstmction or replacement of the Improvements, together with all modi fications or replacements thereof or additions thereto. The Improvements . 19 c: Hop<.:i vi l\M nthwIgPUD2nd . which are to be the sole property of the Developer, and its successors, shall include, but are not limited to, all utility improvements, streets or driveways located within the boundaries of the Real Property other than the City Improvements. The Developer and its successors shall he solely responsible for all repair, maintenance (including, but not limited to, snowplowing, snow removal, sweeping and resurfacing), restoration and replacement of any private street, driveway or parking improvements and the repair and maintenance of any utility improvements, at tIle sole cost and expense of the Developer and its successors in interest. The Developer shall protect, indemnify and hold the City, and its officials, representatives, agents and employees, hannlcss from and against all liabilities, obligations, responsibilities, claims, costs, expenses (including reasonable attomey's fees), demands and causes of action relating to or arising out of, directly or indirectly, the design, construction, maintenance, repair, reconstruction, replacement, ownership . or use of the Improvements (provided that the City shall be responsible for maintenance and repair of the City Improvements following tbeir acceptance by the City, but subject to the Developer's warranty of the City Improvements), and any replacements or substitutions therefor, including, but not limited to, claims for injury to persons or property. The recordation of this Development Agreement shall constitute notice to all successors and assigns of Developer of the non-liability of the City for maintenance, repair, reconstruction or replacement of the Improvements as herein provided. IN WITNESS WHEREOF, Developer and the City have executed this Development Agreement as of the date and year first above written. THE CROSSROADS OF MINNESOTA LLC . e: I-lope; vi I\M ~lh\VigPUD2nu 20 . By Its . . d ]opci\'il\MathwigPUD2nd 21 . STATE OF ) )SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2004, by , the , of The Crossroads of Minnesota LLC, a limited liability company under the laws of the State of Minnesota, on behalf of the limited liability company. Notary Public CITY OF HOPKINS By Its By . Its STATE 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 . 22 c: Hope ivi 111\-1 athwjgPUD2nd ---- . 1011 First Street South Hopkins, Minnesota 55343 . . c: Hopci vi I\MalhwigPt 1D2nd 23 . MORTGAGEE'S CONSENT , a corporation, the mortgagee named in that certain 11100tgage, dated (the "Mortgage"), which Mortgage was recorded , as Hennepin COLlnty 's Document No. , hereby consents to the foregoing Development Agreement and agrees that the Mortgage shall be subject and subordinate to said Development Agreement. By Its STATE OF ) )SS . COUNTY OF ) The foregoing instrument acknowledged before this was me 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 . c:I-lupcivil\Mathwigl'lID2nd 24 . EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY . . 25 c1lopcivil\MalhwigPUD2nd