CR 06-079 PUD-Dev Agree Opus Northwest LLC
C\TY OF
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June 28, 2006
HOPKINS
Council Report 06-79
PUDIDEVELOPMENT AGREEMENT - OPUS NORTHWEST L.L.C.
ProDosed Action.
Staff recommends the following motion: Move to approve a Planned Unit Development
(PUD)/Development Agreement with Opus Northwest. L.L.C.. to redevelop the former
Supervalu North Annex site.
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.
Opus Northwest, L.L.C., is purchasing the former Supervalu North Annex site. Opus is
proposing to construct an office development. The proposed development will be three 6-7
story office buildings. The proposed square footage is approximately 685,000 square feet,
anticipated to be constructed in three phases. This density is similar to what Medica had
planned. There also may be a small retail area on the east side of the site.
The site was rezoned with an overlay zoning of Planned Unit Development (PUD) with the
approval of a master plan. The PUD zoning allows flexibility with the underlining zoning of
Business Park. In this agreement the specific parameters on how the site will be developed
are detailed. A site plan approval and replatting will be required for each phase.
The development agreement, as presented, was prepared by Jerry Steiner of the City
Attorney's office.
Primarv Issues to Consider.
. What will the development agreement allow to be constructed on the site?
. What are the main points of the agreement?
SUDDortin2 Documents.
. Memo from Jerry Steiner
. PUD/Development agreement
.
~~~
Nancy . Anderson, AICP
Planner
Financial Impact: $_N/A_Budgeted: Y/N
Related Documents (CIP, ERP, etc.):
Notes:
Source:
CR06-79
Page 2
Primarv Issues to Consider.
What will the development agreement allow to be constructed on the site?
Included in the PUD agreement are the development standards. These standards allow the
site to be 75 percent office use (25 percent of this space can be a non-offices use), a hotel,
retail uses within the office space and a retail space not exceeding 15,000 square feet.
What are the main points of the agreement?
. Allows the property to be developed in phases
. The project will be developed in compliance with the plans
. Developer will construct a Regional Storm Water Facility
. 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
Alternatives.
1. Approve the development agreement. By approving the PUD agreement, the
redevelopment must be developed as outlined in the agreement.
2. Deny the development agreement. By denying the PUD agreement, Opus will be
allowed t<:> develop the former Supervalu North Annex site with the Business Park
zoning. If the City Council considers this alternative, findings will have to be identified
that support this alternative.
3. Continue for further information. If the City Council indicates that further information is
needed, the item should be continued.
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STEINER & CURTISS, P.A.
ATTORNEYS AT LAW
400 WELLS FARGO BANK BUILDING
1011 FIRST STREET SOUTH
HOPKINS, MN 55343
JEREMY S, STEINER.
WYNN CURTISS
JASON T. HUTCHISON
IIoReal Property Law Specialist, certified
by the Minnesota State Bar Association
(952) 938-7635
FAX (952) 938-7670
Writer's Direct Dial No. 952-938-6219
MEMORANDUM
TO:
Honorable Mayor and City Council Members
City of Hopkins
FROM:
Jeremy S. Steiner, Esq.
DATE:
June 29, 2006
RE:
PUD/Development Agreement for Excelsior Crossings
The purpose of this Memorandum is to outline the major terms of the PUD/Development
Agreement ("PUn Agreement") between the City of Hopkins and Opus Northwest, L.L.C. ("Opus") for
the Excelsior Crossings Development. The PUD Agreement covers the former SuperValu North Annex
property in the northeast quadrant of the intersection of Highway 169 and County Road 3, together with
an approximately three-acre parcel located north of Second Street NE ("Property").
1. pun Zoning. On June 6, the City Council approved the Development Plan for the Property
submitted by Opus and adopted Ordinance No. 06-966 rezoning the Property as a PUD District. The PUD
Agreement documents the Council's approval of this PUD zoning and will be recorded against the title to
the Property. Exhibit B to the pun Agreement sets forth the "Development Design Standards" that were
approved by the Council as part of the PUD zoning approval. Paragraph 1 of the PUD Agreement provides
the Property must be developed in accordance with the pun zoning approval and the Development Design
Standards.
2. Phased Development. Development of the Property is to occur in phases. Paragraph 1 of
the PUD Agreement states that Opus may not proceed with development of any of the phases of
development until it has obtained plat and site plan approval from the City Council. Therefore, at such time
as Opus elects to proceed with development of each phase, the City Council will have the opportunity to
review the proposed development for conformity with the PUD zoning approval and the terms and
conditions stated in the pun Agreement. Opus has not agreed to any definite schedule for development
of the Property. The PUD Agreement specifically allows Opus to determine when and if to commence any
of the phases of development.
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3. Construction of Public Improvements. The PUD Agreement does not require Opus to
constrnct any public utilities, streets, trails, storm water management facilities or other public
improvements until such time as it elects to proceed with the first phase of development. Under Paragraph
2 of the PUD Agreement, when Opus elects to begin development of the fIrst phase, Opus is required to
constluct certain improvements referred to as the "First Phase Improvements" and identified in
Subparagraphs a through f of Paragraph 2. All of those First Phase Improvements must be completed by
Opus at the time of development of the first phase, whether or not Opus elects to proceed with subsequent
Phases of development.
In addition to the "First Phase Improvements" identified in Paragraph 2 of the PUD
Agreement, Opus will be required to complete any additional public improvements that are deemed to be
necessary for development of the Property at the time of the City Council's approval of the site plan and
plat for each subsequent phase of development.
Paragraph 4 C of the pun Agreement requires the City to construct the traffic signal, street,
sidewalk and other public improvements necessary to complete the primary access point to the Property
at the intersection of Jackson Avenue and Hennepin County Road 3 as a public improvement project. The
City will be required to do this work at the time of construction of the last phase of development of the
Property or at such earlier time as the required traffic warrants are met for construction of the intersection.
The pun Agreement provides that all costs incurred by the City in completing these intersection
improvements will be assessed against the Property as a special assessment and that Opus waives objection
to or appeal from that special assessment.
4. Regional Storm Water Facility and Trail. Paragraph 4 B of the PUD Agreement requires
Opus to construct the regional storm water pond on the approximately three-acre parcel north of Second
Street NE. Paragraph 12 J of the PUD Agreement also requires Opus to construct a public trail around
this stonn water pond. At such time as the regional stonn water pond and public trail are completed, title
to the three-acre parcel located north of Second Street NE is to be transferred to the City, at which time
the City will assume responsibility for maintenance of the regional storm water facility and trail.
5. Construction Standards. Paragraphs 5 through 9 of the PUD Agreement contain the
customary construction standards required by the City for construction of public improvements by private
developers. Under Paragraph 8, Opus warrants that all public improvement work completed by Opus and
transferred to the City will be "free from defective materials or faulty workmanship for a period of two (2)
years after acceptance of the Public Improvements by the City." Under Paragraph 14 of the PUD
Agreement, Opus must provide the City with a letter of credit, surety bond or performance bond to
guarantee all public improvements will be completed according to the terms of the pun Agreement and
to guarantee Opus' two-year warranty of the public improvements.
6. Additional Conditions. Under Paragraph 12 B of the PUD Agreement, Opus has agreed
to complete demolition and removal of the existing structures, remediation of contamination and other
adverse environmental conditions and grading and restoration work on the Property at such time as it elects
to proceed with the fIrst phase of development. There is no requirement that Opus commence performance
of this demolition and restoration work at a stated date. Instead, Paragraph 12 B requires Opus to perform
this work at "such time as (Opus) elects to proceed with the first phase of development." Paragraph 12
-2-
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B requires Opus to perform this work in a manner that will "minimize dust and unreasonable accumulation
of d~bris" and requires Opus to grade and seed all areas underlying demolished improvements that remain
unimproved for a period of six months.
Paragraph 12 D states the primary access point for the development must be at the
intersection of Jackson Avenue, Excelsior Boulevard and St. Louis Street, with the secondary access point
to be at Second Street NE. The access improvements for these primary and secondary access points are
to be designed and located as shown on the Master Plan attached to the pun Agreement as Exhibit D.
Paragraph 12 I requires Opus to pay a total $339,900.00 as park dedication fees, payable
at the time of plat approval for each phase of development. Opus will receive a credit against the park
dedication fees equal to the lesser of$25,OOO.OO or the actual costs incurred in constructing the public trail
around the regional storm water pond.
Paragraph 12 P of the PUD Agreement requires Opus to install landscaping as depicted on
the Landscaping Plan and Master Plant List attached to the PUD Agreement as Exhibit C. Opus is required
to complete the landscaping around the primary access point at Jackson Avenue and the secondary access
point at Second Street NE, landscaping around the south, northeast and northwest ponds, landscaping for
the central water feature, landscaping along the Excelsior Boulevard frontage road and perimeter
landscaping around the initial phase at the time of development of the first phase of the proj eet.
7. Restrictions on Assignment. Because the City Council has approved the pun zoning and
the PUD Agreement for this project in part in reliance on the development ability and financial strength
of Opus, Paragraph 13 contains certain restrictions on Opus' ability to transfer its rights in the
development. Opus will remain liable for completion of all of the First Phase Improvements described in
Paragraph 2 of the pun Agreement, whether or not it has transferred its interest in any part of the Property
before commencement of construction of the First Phase Improvements. In addition, if Opus has
commenced development of any later phase of development of the Property but transfers its interest in that
phase before completion of development, Opus will retain primary responsibility for development of that
phase, including completion of any public improvements required to be completed as a condition of the
City's approval of that phase of development. At such time as Opus has completed development of any
individual phase, including completion of any required public improvements, Opus is allowed to transfer
its interest and its rights and obligations under the PUD Agreement to a subsequent owner. The PUD
Agreement will be recorded as an encumbrance against the title to the entire Property, and all subsequent
owners of the Property will take title subject to the terms and conditions stated in the PUD Agreement.
JSS
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STEINER & CURTISS, P.A.
ATTORNEYS AT LAW
400 WELLS FARGO BANK BUILDING
1011 FIRST STREET SOUTH
HOPKINS, MN 55343
JEREMY S. STEINER *
WYNN CURTISS
JASON T. HUTCHISON
"'Real Property Law Specialist. certified
by the Minnesota State Bar Association
(952) 938-7635
FAX (952) 938-7670
Writer's Direct Dial No. 952-938-6219
MEMORANDUM
TO:
Honorable Mayor and City Council Members
City of Hopkins
FROM:
Jeremy S. Steiner, Esq.
DATE:
June 29, 2006
RE:
PUD/Development Agreement for Excelsior Crossings
The purpose of this Memorandum is to outline the major terms of the PUD/Development
Agreement ("PUn Agreemenf') between the City of Hopkins and Opus Northwest, L.L.C. ("Opus") for
the Excelsior Crossings Development. The PUD Agreement covers the former SuperValu North Annex
property in the northeast quadrant of the intersection of Highway 169 and County Road 3, together with
an approximately three-acre parcel located north of Second Street NE ("Property").
1. pun Zoning. On June 6, the City Council approved the Development Plan for the Property
submitted by Opus and adopted Ordinance No. 06-966 rezoning the Property as a pun District. The pun
Agreement documents the Council's approval of this PUD zoning and will be recorded against the title to
the Property. Exhibit B to the pun Agreement sets forth the "Development Design Standards" that were
approved by the Council as part of the pun zoning approval. Paragraph 1 of the PUD Agreement provides
the Property must be developed in accordance with the PUD zoning approval and the Development Design
Standards.
2. Phased Development. Development of the Property is to occur in phases. Paragraph 1 of
the PUD Agreement states that Opus may not proceed with development of any of the phases of
development until it has obtained plat and site plan approval from the City Council. Therefore, at such time
as Opus elects to proceed with development of each phase, the City Council will have the opportunity to
review the proposed development for conformity with the PUD zoning approval and the terms and
conditions stated in the PUD Agreement. Opus has not agreed to any definite schedule for development
of the Property. The PUD Agreement specifically allows Opus to determine when and if to commence any
of the phases of development.
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3. Construction of Public Improvements. The PUD Agreement does not require Opus to
construct any public utilities, streets, trails, storm water management facilities or other public
improvements until such time as it elects to proceed with the fIrst phase of development. Under Paragraph
2 of the PUD Agreement, when Opus elects to begin development of the first phase, Opus is required to
construct certain improvements referred to as the "First Phase Improvements" and identified in
Subparagraphs a through f of Paragraph 2. All of those First Phase Improvements must be completed by
Opus at the time of development of the first phase, whether or not Opus elects to proceed with subsequent
phases of development.
In addition to the "First Phase Improvements" identified in Paragraph 2 of the PUD
Agreement, Opus will be required to complete any additional public improvements that are deemed to be
necessary for development of the Property at the time of the City Council's approval of the site plan and
plat for each subsequent phase of development.
Paragraph 4 C of the PUD Agreement requires the City to construct the traffic signal, street,
sidewalk and other public improvements necessary to complete the primary access point to the Property
at the intersection of Jackson Avenue and Hennepin County Road 3 as a public improvement project. The
City will be required to do this work at the time of construction of the last phase of development of the
Property or at such earlier time as the required traffic warrants are met for construction of the intersection.
The PUD Agreement provides that all costs incurred by the City in completing these intersection
improvements will be assessed against the Property as a special assessment and that Opus waives objection
to or appeal from that special assessment.
4. Regional Storm Water Facility and Trail. Paragraph 4 B of the PUD Agreement requires
Opus to construct the regional storm water pond on the approximately three-acre parcel north of Second
Street NE. Paragraph 12 J of the PUD Agreement also requires Opus to construct a public trail around
this storm water pond. At such time as the regional storm water pond and public trail are completed, title
to the three-acre parcel located north of Second Street NE is to be transferred to the City, at which time
the City will assume responsibility for maintenance of the regional storm water facility and trail.
5. Construction Standards. Paragraphs 5 through 9 of the PUD Agreement contain the
customary construction standards required by the City for construction of public improvements by private
developers. Under Paragraph 8, Opus warrants that all public improvement work completed by Opus and
transferred to the City will be "free from defective materials or faulty workmanship for a period of two (2)
years after acceptance of the Public Improvements by the City." Under Paragraph 14 of the PUD
Agreement, Opus must provide the City with a letter of credit, surety bond or performance bond to
guarantee all public improvements will be completed according to the terms of the PUD Agreement and
to guarantee Opus' twoMyear warranty of the public improvements.
6. Additional Conditions. Under Paragraph 12 B of the pun Agreement, Opus has agreed
to complete demolition and removal of the existing structures, remediation of contamination and other
adverse environmental conditions and grading and restoration work on the Property at such time as it elects
to proceed with the first phase of development. There is no requirement that Opus commence performance
of this demolition and restoration work at a stated date. Instead, Paragraph 12 B requires Opus to perform
this work at "such time as (Opus) elects to proceed with the first phase of development." Paragraph 12
-2-
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..~__.t...u...1o 1_"'.f'ld......'"'......_M....~....___..._ .._..........._.. .._. _..._........_....~~_"~.,,......___
B requires Opus to perform this work in a manner that will "minimize dust and unreasonable accumulation
of debris" and requires Opus to grade and seed all areas underlying demolished improvements that remain
unimproved for a period of six months.
Paragraph 12 D states the primary access point for the development must be at the
intersection of Jackson Avenue, Excelsior Boulevard and St. Louis Street, with the secondary access point
to be at Second Street NE. The access improvements for these primary and secondary access points are
to be designed and located as shown on the Master Plan attached to the PUD Agreement as Exhibit D.
Paragraph 12 I requires Opus to pay a total $339,900.00 as park dedication fees, payable
at the time of plat approval for each phase of development. Opus will receive a credit against the park
dedication fees equal to the lesser of$25,OOO.OO or the actual costs incurred in constructing the public trail
around the regional storm water pond.
Paragraph 12 P of the PUD Agreement requires Opus to install landscaping as depicted on
the Landscaping Plan and Master Plant List attached to the PUD Agreement as Exhibit C. Opus is required
to complete the landscaping around the primary access point at Jackson A venue and the secondary access
point at Second Street NE, landscaping around the south, northeast and northwest ponds, landscaping for
the central water feature, landscaping along the Excelsior Boulevard frontage road and perimeter
landscaping around the initial phase at the time of development of the first phase of the project.
7. Restrictions on Assignment. Because the City Council has approved the PUD zoning and
the PUD Agreement for this project in part in reliance on the development ability and financial strength
of Opus, Paragraph 13 contains certain restrictions on Opus' ability to transfer its rights in the
development. Opus will remain liable for completion of all of the First Phase Improvements described in
Paragraph 2 of the pun Agreement, whether or not it has transferred its interest in any part of the Property
before commencement of construction of the First Phase Improvements. In addition, if Opus has
commenced development of any later phase of development of the Property but transfers its interest in that
phase before completion of development, Opus will retain primary responsibility for development of that
phase, including completion of any public improvements required to be completed as a condition of the
City's approval of that phase of development. At such time as Opus has completed development of any
individual phase, including completion of any required public improvements, Opus is allowed to transfer
its interest and its rights and obligations under the pun Agreement to a subsequent owner. The pun
Agreement will be recorded as an encumbrance against the title to the entire Property, and all subsequent
owners of the Property will take title subject to the terms and conditions stated in the PUD Agreement.
JSS
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Draft Dated 6/29/06
PUDillEVELOPMENTAGREEMENT
This PUD/Development Agreement (this "PUD Agreement") is made and executed this
day of
, 2006, by Opus Northwest, L.L.C., a limited liability
company under the laws of the State of Delaware ("Developer"), and the City of Hopkins, a
municipal corporation under the laws of Minnesota ("City").
RECITALS
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 incorporated herein by reference.
B. Developer made application to the City for a rezoning of the Real Property as a
PUD overlay zone. In support of that application, and as required by Section 565 of the Hopkins
City Code, Developer submitted a Development Plan ("Development Plan") to the City
describing and identifying, among other things, the proposed uses, design standards and other
conditions that will be applicable within the PUD zoning district.
C. On June 6, 2006, the City Council of the City approved its Resolution No. 06-39
approving the Development Plan and the adoption of Ordinance No. 06-966 approving overlay
PUD zoning for the Real Property so that, in addition to its underlying zoning classification of
Business Park, the Real Property also has an overlay zoning classification of Planned Unit
Development. Said Resolution No. 06-39 and Ordinance No. 06-966 are incorporated in and
made a part of this PUD Agreement in their entirety.
D. As a condition of its approval of the Development Plan, Resolution No. 06-39 and
Ordinance No. 06-966 establishing a Planned Unit Development overlay district, 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 and restrictions of this PUD Agreement,
ii) execute this PUD Agreement, and iii) to record this PUD Agreement as a servitude upon the
title to the Real Property; provided, however, in the event of any conflict between the terms and
provisions of said Resolution No. 06-39, Ordinance No. 66-966 and the Development Plan, on
the one hand, and the terms and provisions of this PUD Agreement on the other hand, the terms
and provisions of this PUD Agreement shall govern and control. .
E. Section 565.02 of the Hopkins City Code provides the City may require the
Developer to enter into a development agreement stating the terms and conditions for the City's
approval of the PUD overlay zoning. This PUD Agreement is the development agreement
described in said Section 565.02, and the City has required Developer to enter into this PUD
Agreement under the authority provided in said Section 565.02.
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated
in and made a part of this PUD Agreement, Developer and the City agree to the terms and
conditions stated in this PUD Agreement and Developer declares that all of the Real Property
shall be held, transferred, leased, occupied, used, improved and developed subj ect to the
following agreements, terms, covenants, conditions and restrictions:
c:\Hopciv\Opus PUD Agmt.062906
- 2-
1. Intent of PUD Zonin2. Phased DeveloDment. The int~nt of the PUD overlay
zoning is that the past use of the Real Property as a warehousing and shipping facility will be
discontinued and that the Real Property shall be redeveloped in conformity with the
Development Plan, the terms and conditions stated in City Council Resolution No. 06-39 and all
of the terms, covenants and conditions stated in this PUD Agreement, including the Development
Design Standards described in Exhibit B attached hereto and incorporated herein ("Development
Design Standards"). Developer agrees it will develop the Real Property in conformance with
Section 565 of the Hopkins City Code, the Development Plan, the terms and conditions stated in
City Council Resolution No. 06-39 and the terms and conditions stated in this PUD Agreement,
including the Development Design Standards.
It is intended that the Real Property shall be developed in phases. Construction of
buildings and related or ancillary improvements for any phase of development may not proceed .
or occur until Developer has obtained approval from the City of a plat for the phase of
development in question and site plan approval for each such phase, all in accordance with the
requirements of the Hopkins City Code and Minnesota Statutes; provided, however, that the
Demolition and Restoration Work described and defined in Paragraph 12, B, may proceed before
Developer has obtained site plan approval or plat approval for any phase of development. At the
time of plat and/or site plan approval for each phase of development, the Developer and the City
shall enter into an Amendment to this PUD Agreement stating the particular terms, covenants
and conditions attached to the City's approval for each phase of development in accordance with
Minnesota Stat. 462.358, subd. 2a, Section 565 of the Hopkins City Code and consistent with the
terms and conditions stated in this PUD Agreement. Any development of the Real Property shall
be subject to such terms and conditions of approval, including construction of any Public
c:\Hopciv\Opus PUD Agmt.062906
- 3 -
Improvements (as described below), as may be established by the City Council consistent with
the terms and conditions of this PUD Agreement.
2. Construction of ImDrovements. Developer shall construct or reconstruct,
install, complete and pay for the work, labor, materials, facilities and improvements required for
the development of the Real Property, including all of the facilities and improvements described
in the Plans identified in Paragraph 3 of this PUD Agreement and the facilities and
improvements described in Paragraph 4 of this PUD Agreement. All streets, alleys, sidewalks,
trails, landscaping, sanitary sewer, City water, storm sewer, storm drainage and other public
utilities or public improvements to be constructed as provided in this PUD Agreement, with the
exception of the Intersection Improvements described and defined in Paragraph 4, C, which are
located within any public easements or rights-of-way are referred to in this Agreement as "Public
Improvements." All Public Improvement work (but not the Intersection Improvements) shall be
done at the sole cost and expense of Developer in accordance with the City's standard
construction and engineering practices and the terms and conditions stated in this PUD
Agreement. The specific Public Improvements to be completed during each phase of
development will be identified at the time of approval of each phase of development by the City
and completed by Developer in accordance with the terms and conditions stated in this PUD
Agreement and the Amendment hereto to be entered into at the time of such approval, and
Developer acknowledges the City shall be entitled to require Developer to construct the
following Improvements and work (hereinafter the "First Phase Improvements") as a condition of
approval of the first phase of development of the Real Property, namely:
a. The Storm Water Management Improvements defined and identified in Paragraph
4A.
b. The Regional Storm Water Facility defined and identified in Paragraph 4B.
c:\Hopciv\Opus PUD Agmt.062906
- 4-
c. The Demolition and Restoration Work defined and identified in Paragraph 12B.
d. The public trail to be constructed around the storm water pond to be constructed
within the Three-Acre Open Space Parcel (hereinafter defined) in accordance with
the provisions of Paragraph 121.
e. If determined to be necessary by the City, construction of a new water main from
the southeast corner of the Real Property in the right-of-way of St. Louis Street to
Tyler Avenue North.
f. Any other Public Improvements located within or adjacent to the first phase of
development that are determined to be necessary and identified at the time of
approval of the plat and site plan for the first phase of development.
The Developer shall also design and construct all of the private roadways, water, sewer,
storm water, drainage, natural gas, underground electric, telephone and other private utility
facilities required for the construction and development of each phase of development (herein
collectively referred to as the "Developer Improvements") at Developer's sole cost and expense,
and in compliance with the Plans identified in Paragraph 3 of this PUD Agreement. The Public
Improvements and the Developer Improvements are herein collectively referred to as the
"Improvements." The Improvements shall be completed in accordance with: i) the Plans defined
and identified in Paragraph 3 of this PUD Agreement, as the same may be amended from time to
time in accordance with its terms; and ii) all of the other terms of this PUD Agreement.
Developer's obligation to construct, install and pay for the Improvements shall include
completion of and payment for any and all labor, skill, material, equipment and other work
required during the course of construction to complete the Improvements in compliance with the
requirements of this PUD Agreement. Developer shall commence the Demolition and
Restoration Work at such time, if ever, as Developer proceeds with the first phase of
development of the Real Property, and shall complete the same as stated in Paragraph 12, B.
Notwithstanding any provision of this pun Agreement apparently to the contrary, Developer
c:\Hopciv\Opus PUD Agmt.062906
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shall not be required to construct or install any Improvements until Developer elects to proceed
with the first phase of development of the Real Property, it being understood that the election by
Developer to proceed with the first phase or any subsequent phase of development shall be in
Developer's sole discretion, and provided that all development of the Real Property shall be
subject to and in accordance with the terms and conditions stated in this PUD Agreement. While
it is agreed the election to proceed with the first phase or any subsequent phase of development
shall be in Developer's sole discretion, Developer agrees to deliver periodic status reports to the
City no less frequently than every sixty (60) days from and after the date of this PUD Agreement
advising the City of the status of Developer's leasing, sales and development activities and
projected construction schedules for each phase of development of the Real Property.
3. Identification of and ComDliance With Plans. At the time of submission of a
plat or site plan for each phase of development of the Real Property, Developer shall submit
comprehensive plans depicting each phase of development, including all Improvements to be
constructed and completed as part of each phase (herein collectively referred to as the "Plans").
The Plans shall be prepared and submitted in accordance with the City's standard practices for
approval of plats and site plans and construction of Public Improvements and will include, but
are not limited to, preliminary and final plats, grading, drainage and erosion control plans,
landscaping plans, utility plans, site plans and such other surveys, plans, drawings and
engineering plans as are customarily required by the City in connection with plat or site plan
approval or are appropriate to the development of each phase of the Real Property. At the time
of approval of each phase of development of the Real Property, Developer shall submit the Plans
for such phase of development for review and approval by City staff, and the Amendment to this
PUD Agreement to be entered into in connection with the approval of each phase of development
c:\Hopciv\Opus PUD Agmt.062906
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shall identify the Plans for that phase and incorporate such Plans by reference. Plans shall not be
attached to this PUD Agreement or any Amendment thereto. If any of the Plans are designated as
"Preliminary," such Planes) shall, subject to City review, comment and approval, be modified, at
Developer's expense, after the date of this PUD Agreement or any Amendment thereto 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 such time as a preliminary Plan has been replaced by a final Plan approved by the City,
all references in this PUD Agreement or any Amendment thereto 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 PUD Agreement or any Amendment thereto, the provisions of the Plans shall control. All of
the Developer Improvements shall be constructed in the manner depicted in and required by the
Plans, the final construction documents prepared in accordance with the Plans, and this PUD
Agreement and any Amendments thereto, by Developer, at Developer's sole expense.
4. Additional ImDrovements. In addition to or as part of completion of the
facilities and Improvements depicted in the Plans, Developer or the City, as expressly specified
below, shall construct, install and pay for the following facilities and Improvements:
A. At such time as Developer elects to proceed with the first phase of
development of the Real Property, if ever, Developer shall construct all of the ponds and other
storm water management improvements (collectively "Storm Water Management
Improvements") to be constructed on the Real Property in accordance with the Plans, City
standards, codes, regulations and ordinances, including Section 546 of the Hopkins Code of
Ordinances, and with the standards, regulations and requirements of the Minnehaha Creek
Watershed District, including any conditions imposed by said Watershed District on the issuance
c:\Hopciv\Opus PUD Agmt.062906
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of any permits obtained from it. Developer shall comply with all requirements and conditions of
the Minnehaha Creek Watershed District related to the future maintenance of the Storm Water
Management Improvements; and Developer acknowledges such conditions may include
execution of a declaration or access and right-of-entry agreement in favor of the City and/or
Minnehaha Creek Watershed District and containing terms and conditions reasonably acceptable
to Developer, the City and said Watershed District. The Storm Water Management
Improvements shall be constructed at the time of construction of the Improvements for the first
phase of development of the Real Property, and, following commencement of construction,
Developer shall proceed and thereafter continue ~ith all due diligence to complete the Storm
Water Management Improvements, but subject to Unavoidable Delays (as defined in Paragraph
12.B).
B. At such time as Developer elects to proceed with development of the first
phase of development of the Real Property, if ever, Developer shall design and construct a
regional storm water retention and treatment facility and related improvements (the "Regional
Storm Water Facility") on the approximately three-acre parcel located north of Second Street NE
(the "Three-Acre Open Space Parcel"), at Developer's sole cost and expense. The Regional
Storm Water Facility shall be designed and constructed in accordance with applicable statutes,
ordinances, codes and regulations and all requirements of the City and the applicable Watershed
District having jurisdiction over the Property. The Regional Storm Water Facility shall also be
completed in accordance with the following plan ("Regional Storm Water Facility Plan"), which
shall be considered part of the Plans referred to in Paragraph 3 of this PUD Agreement, namely,
Excelsior Crossings Storm Water and Pond, Figure #1, dated May 17, 2006, prepared by RLK,
Incorporated, provided the Regional Storm Water Facility Plan shall have been approved by the
c:\Hopciv\Opus PUD Agmt.062906
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applicable Watershed District and modified to incorporate any modifications required by such
Watershed District. At such time as Developer elects to proceed with the first phase of
development of the Real Property, if ever, Developer shall construct the Regional Storm Water
Facility concurrently with construction of the Improvements for the first phase of development
and, following commencement, Developer shall proceed and thereafter continue with all due
diligence to complete the Regional Storm Water Facility, but subject to Unavoidable Delays.
Upon completion of the Regional Storm Water Facility and acceptance thereof by
the City and Watershed District, title to the Three-Acre Open Space Parcel shall be transferred to
the City. The Regional Storm Water Facility shall be part of the Public Improvements to be
transferred to the City and, following transfer, shall be maintained by the City in the same
manner as other public improvements of the City, but subject to the warranties of Developer
stated in this PUD Agreement and in accordance with all of the terms and conditions of this PUD
Agreement. The City shall permit Developer to include the area of the Three-Acre Open Space
Parcel as part of the area of the Real Property for purposes of calculating storm water detention,
green space or pervious surface requirements and in calculating floor area ratios or other
applicable coverage ratios for the development and construction of improvements on the Real
Property .
Pending transfer of title to the Three-Acre Open Space Parcel to the City
as required by this PUD Agreement, Developer agrees the City shall be entitled to use the Three-
Acre Open Space Parcel as a snow storage or snow disposal site, and the City and Developer
shall execute an extension of the existing snow storage lease by which the City has used the
Three-Acre Open Space Parcel for snow storage purposes, provided there shall be no rent or
other charges payable by the City pursuant to such snow storage lease pending transfer of title to
c:\Hopciv\Opus PUD Agmt.062906
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the Three-Acre Open Space Parcel to the City.
C. A traffic signal and all related roadway, sidewalk and other Public
Improvements (the "Intersection Improvements") shall be constructed by the City at the primary
access point to the Real Property at the intersection of Jackson Avenue and Hennepin County
Road 3 upon the earlier to occur of: (i) at the time of construction of improvements for the last
phase of development of the Real Property (with the exception of any separate retail building), or
(ii) such earlier time, if ever, as the required traffic warrants are met for construction of such
- intersection. In addition, Developer may elect, by notice to the City, to require that the
Intersection Improvements be constructed at an earlier date. Construction of the Intersection
Improvements shall be completed by the City as a public improvement project, but all costs
incurred by the City related thereto shall be assessed against the Real Property (except for the
Three-Acre Open Space Parcel) as a special assessment repayable in installments at a rate of
interest and upon such terms and conditions as are determined by the City in accordance with the
City's standard practices for residential special assessment projects as in effect at the time of the
assessment, except that 100 percent of all costs incurred by the City in completing the
Intersection Improvements shall be assessed against the Real Property. Developer agrees to
waive and does hereby waive any and all rights of hearing, objection or appeal to or from the
special assessments to be levied against the Real Property, and agrees the City shall be entitled to
assess the Real Property (except for the Three-Acre Open Space Parcel), for the cost of
completing the Intersection Improvements in accordance with Minnesota Statutes Chapter 429.
5. Construction Standards and Procedures. The Improvements shall be
constructed and installed in accordance with the final Plans, City standards, codes, regulations
and ordinances, including, but not limited to, the Engineering Guidelines adopted by the City's
c:\Hopciv\Opus PUD Agmt.062906
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Department of Public Works, and with the requirements of Minnesota Rules Chapter 7560
(which rules apply to and regulate underground utility service laterals). 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, reviewed by the City Engineer and
modified to incorporate any comments of the City Engineer or his consultant prior to final
approval thereof and issuance of a permit for the work depicted in such plans. In connection
with the construction of the Improvements by Developer, the 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 Public Improvements,
Developer shall supply the City with the following relating to the Public Improvements: (a) a
complete set of reproducible mylar as-built plans, (b) two complete sets of utility tie sheets, (c)
location stationing and swing ties of all utility stubs, (d) benchmark network and (e) digital as-
builts conforming with the following requirements:
(i) Digital Files in Microstation DGN Format in NAD 83 Hennepin County
Ground Coordinates.
(ii) All Cell Libraries and Line Styles shall be included.
(iii) Level structure shall conform to current Hopkins Level Structure.
6. License. The 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. Any such
entry and inspections shall be performed in a manner that does not unreasonably interfere with
the performance of Developer's development or construction activities or with the conduct of the
c:\Hopciv\Opus PUD Agmt.062906
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business of any tenant of the Real Property (provided the City and its agents shall in no event be
unreasonably restricted in performing any required work or inspections), and the agents,
employees and inspectors entering the Real Property on behalf of the City shall observe such
reasonable safety rules and regulations as are adopted by Developer from time to time and
contained in a written notice of such rules and regulations to the City. Such license shall
terminate upon completion of the Improvements, as evidenced by final inspection and approval
thereof by the City Engineer and building official.
7. ImDrovements to be Transferred to City. Upon completion of construction of
the Public Improvements, and final acceptance and approval thereof by the City, all of the Pubic
Improvements, including those located within any public drainage and utility easements,
dedicated to the City shall become the sole property of the City. The Developer shall transfer the
Public Improvements to the City free and clear of all liens and encumbrances. Following
acceptance of the Public Improvements, the City shall maintain the same in the same manner as
other public improvements of the City, but subject to Developer's warranties stated in this PUD
Agreement.
At such time as the Public Improvements have been completed, representatives of
Developer's contractors, and a representative of Developer's Engineer will make a final
inspection of the Public Improvements with the City Engineer. The City Engineer shall be
entitled to review and approve any punch list items or lists of incomplete or defective work
comprising the Public Improvements to be submitted by Developer or its representatives to the
contractor( s) responsible for completion of the Public Improvements to assure that the same are
completed in accordance with the requirements of this PUD Agreement. As a condition of its
acceptance of title to any of the Public Improvements, the City shall receive from Developer
c:\Hopciv\Opus PUD Agmt.062906
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written evidence, in form and content reasonably acceptable to the City, that Developer has
caused all incomplete or defective work to be completed or corrected and has made payment in
full for all work comprising the Public Improvements. Before the City accepts title to the Public
Improvements, the City Engineer shall be reasonably satisfied that all of the Public
Improvements have been completed in accordance with the Plans and the requirements of this
PUD Agreement and that Developer has made payment in full for all of the work comprising the
Public Improvements. The City shall not unreasonably withhold or delay its approval and
acceptance of title to any of the Public Improvements, provided that final acceptance of the
Public Improvements by the City shall be evidenced by a resolution duly adopted by the City
Council of the City, which approval shall be granted if Developer is in full compliance with all of
the terms, conditions, agreements, and requirements of this PUD Agreement and any
Amendments thereto related to the Public Improvements.
8. Warranty. The Developer warrants that all work comprising the Public
Improvements shall be free from defective materials or faulty workmanship for a period of two
(2) years after acceptance of the Public 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 Public
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 Developer at Developer's sole expense. The warranties of
Developer and agreement to repair and replace defective work and materials as stated in this
Paragraph 8 do not apply to the Intersection Improvements.
9. Reimbursement of Costs to City. Developer acknowledges the City may retain
c:\Hopciv\Opus PUD Agmt.062906
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consultants to provide services related to the redevelopment of the Real Property and this PUD
Agreement, and Developer shall reimburse the City for all reasonable out-of-pocket costs
incurred by the City in connection with such redevelopment and the preparation, negotiation and
execution of this PUD Agreement and any Amendments thereto, and the administration,
performance and enforcement of this PUD Agreement and any Amendments thereto. Such out-
of-pocket costs to be reimbursed by Developer shall include, but are not limited to, all reasonable
fees due to consultants retained by City, whether incurred before or after the date of this PUD
Agreement and any Amendment thereto, including, without limitation, traffic, development,
fiscal, environmental, geotechnical, surveying, engineering, and legal services of the City
Attorney, which are to be reimbursed at the current rate of $225.00 per hour, and are subject to
increase of no more than $10.00 per hour January 1 of each year. The selection of consultants
and the extent of services to be provided by them shall be in the sole (but reasonable) discretion
of the City. Such reimbursements from Developer shall be due and payable within thirty (30)
busin~ss days of delivery of a copy of the invoice or statement therefor to the Developer, and
shall bear interest at the rate of one percent (1 %) per month, if not paid by Developer within
thirty (30) days of the date the applicable invoice or statement has been delivered to Developer.
If Developer fails to pay any reimbursement due to the City within the time period required by
this Paragraph 9, the City shall be entitled to invoke and enforce all remedies available to the
City under this PUD Agreement upon a default by Developer. Upon request by Developer, the
City shall provide Developer with copies of all invoices, statements and other documents
received from any consultant retained by the City evidencing the reimbursements due from
Developer under this Paragraph 9, together with copies of any contracts entered into between the
City and any such consultants for consultants' services reimbursable hereunder.
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10. Other Governmental ADDrovals. The Developer shall obtain, all required
approvals and/or permits from the Minnesota Pollution Control Agency ("MPCA"), Hennepin
County, the Minnehaha Creek Watershed District, Minnesota Department of Health,
Metropolitan Council and any other governmental authorities whose approval is required for the
construction of the Improvements and the redevelopment of the Real Property. The Developer
shall maintain all such required permits and comply therewith at all times.
11. Time of Performance. [Intentionally omitted.]
12. Additional Conditions and PUD Zonin2 Requirements. Developer agrees the
Real Property shall be redeveloped, held, transferred, occupied, used and improved subject to and
in compliance with the following additional terms conditions and requirements:
A. The intent of the PUD overlay zoning, the permitted uses, prohibited uses
and design standards within the PUD overlay zone shall be as described in the Development
Design Standards. The Real Property shall be redeveloped and improved in accordance with the
Development Design Standards. All uses of the Real Property shall be in accordance and
conformity with the Development Design Standards.
B. If Developer elects to proceed with the first phase of development of the
Real Property, then Developer agrees that it shall complete, at Developer's sole expense, the
demolition and removal of all existing structures and improvements from the Real Property,
remediation of any contamination or other adverse environmental conditions to the extent
required by law, and all grading and restoration of the Real Property (such demolition and
removal, remediation, grading and restoration work being herein collectively referred to as the
"Demolition and Restoration Work") in accordance with the approved Plans therefor and all
statutes, codes, ordinances and regulations and any requirements or approvals obtained by
c:\Hopciv\Opus PUD Agmt.062906
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Developer from the MPCA. Developer shall commence performance of the Demolition and
Restoration Work promptly at such time as Developer elects to proceed with the first phase of
development of the Real Property, if ever, and shall thereafter proceed and continue with all due
diligence to complete the Demolition and Restoration Work, subject to reasonable delays due to
removal or remediation of unforeseen environmental contaminants, hazardous waste or
hazardous substances; correction of unforeseen soil conditions; flood, storms and other natural
catastrophes and acts of God; epidemic, war, riot, sabotage, civil disturbance or disobedience, act
of public enemy; fire, accident, wreck or explosion; strike, lockout, labor dispute; delays in
issuance of necessary permits and approvals resulting from actions beyond the reasonable control
of Developer; delays due to unforeseen inclement weather conditions; delays in transportation or
inability to obtain necessary labor, materials, components, equipment, services, energy or utilities
through usual and regular sources at usual and regular prices and any order or injunction of a
court or governmental agency; and other delays beyond the reasonable control of Developer (the
foregoing delays being herein collectively referred to as "Unavoidable Delays"). All of the
Demolition and Remediation Work will be conducted in a manner that will minimize dust and
unreasonable accumulations of debris. Developer will provide adequate dust, traffic control and
soil erosion measures to protect neighboring properties, including sweeping adjacent streets, as
necessary during hauling activities and as otherwise required, and utilizing special water misting
equipment connected to on-site hydrants to control dust migration. Following demolition of
existing improvements, reusable materials shall be leveled and stockpiled on the undeveloped
portion of the Real Property (other than the Three-Acre Open Space Parcel) and will be utilized
for sub grades below building footprints and roadways. Any portion of the Real Property
underlying demolished improvements that remains unimproved for a period of more than six (6)
c:\Hopciv\Opus PUD Agmt.062906
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months following completion of the Demolition and Restoration Work shall be seeded during the
appropriate growing season and, in addition, landscaping along Excelsior Boulevard, as generally
depicted in the Landscaping Plan attached hereto as Exhibit C and incorporated herein
("Landscaping Plan"), shall be promptly installed following expiration of said six-month period,
if not previously installed. Developer shall notify the City upon completion of the Demolition
and Restoration Work. All construction activities related to the performance of the Demolition
and Restoration Work will be conducted in accordance with applicable ordinances, statutes,
codes and regulations and shall be performed in accordance with sound construction and
engineering techniques. The Demolition and Restoration Work shall be completed in
compliance with the Plans and all applicable statutes, rules and ordinances at the sole cost of
Developer, provided that no provision of this PUD Agreement shall be interpreted to waive any
rights Developer may have to receive tax increment financing assistance to reimburse Developer
for costs incurred by Developer in completing the Demolition and Restoration Work. If
Developer fails to complete the Demolition and Restoration Work within one hundred eighty
(180) days following commencement of such work, and thereafter fails to complete the
Demolition and Restoration Work after thirty (30) days notice from the City, the City and its
agents, in addition to any other remedy available to the City, shall be entitled to enter upon the
Real Property and complete such work at the expense of Developer; provided the one hundred
eighty (180) day time period for completion of the Demolition and Restoration Work shall not
apply to any remediation of contaminated soils to be performed by Developer as part of the
Demolition and Restoration Work, but such remediation work shall be performed and completed
by Developer with all due diligence. However, no provision of this PUD Agreement shall be
interpreted to require the City to undertake to complete the Demolition and Restoration Work.
c:\Hopciv\Opus PUD Agmt.062906
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All costs incurred by the City in completing the Demolition and Restoration Work following
Developer's failure to complete the same as required by this paragraph 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. The City has made or shall make application to the Metropolitan Council
("Met. Council"), the State of Minnesota Department of Employment and Economic
Development ("DEED") and Hennepin County for grants from such agencies to reimburse costs
incurred by Developer in performing the Demolition and Restoration Work, to the extent such
costs are eligible for grant funding by DEED, Met. Council and Hennepin County. Developer
shall assist and fully cooperate with the City in submitting applications for grants from DEED,
Met. Council and Hennepin County, and shall reimburse the City for all reasonable costs incurred
by the City related to obtaining such grants in the manner provided in Paragraph 9 of this
Agreement. The City shall exercise good faith and reasonable efforts to obtain approval of such
grant funding from DEED, Met. Council and Hennepin County, but the City does not warrant or
agree that it will successfully obtain such grants, and the City shall not be liable to Developer if
such grants are not approved by DEED, Met. Council or Hennepin County. In the event any of
said grants are approved, the City and Developer shall enter into a so-called "Sub-Recipient
Agreement," in form and substance reasonably acceptable to the parties, by which the proceeds
of such grant( s) shall be made available to Developer to reimburse Developer for eligible costs
incurred by Developer in performing the Demolition and Restoration Work.
D. The primary access point for the Real Property shall be at the Jackson
Avenue/Excelsior Boulevard/St. Louis Street intersection. The secondary access point for the
c:\Hopciv\Opus PUD Agmt.062906
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project shall be at Second Street NE. The primary and secondary access point improvements
shall be designed and located generally as shown on the Master Plan attached hereto and
incorporated herein as Exhibit D ("Master Plan"). All building, driveway, access and parking
ramp improvements shall be designed and located to promote vehicular movements toward
Jackson Avenue. The layout and design of the driveway, access, vehicle circulation, parking and
parking ramp improvements for each phase of development of the Real Property shall be subject
to final review and approval by the City Council at the time of plat and site plan approval, it
being understood that the City will favorably consider the layout and design set forth in the
Master Plan. Developer intends to maintain the existing north/south public alley on the east side
of the Real Property up to the point of the proposed retail building, where said alleyway shall be
vacated to accommodate the design of the proposed retail building. Developer also intends to
relocate the existing public right-of-way to the north of the proposed retail building. The existing
alleyway, as relocated, shall be integrated with internal circulation drives for the project. The
City shall consider favorably any reasonable requests made by Developer in connection with the
vacation and relocation of existing rights-of-way as described above, including approval and
execution of appropriate easeJ?ent termination and vacation documentation, provided actual
vacation shall be subject to approval by the City Council in accordance with law.
Developer shall incorporate in the Plans and complete all mitigative
measures as identified in the updated Alternative Urban Area-Wide Review Mitigation Plan
dated April 6, 2006.
E. All construction traffic in and out of the Real Property, whether for the
performance of the Demolition and Restoration Work or any subsequent work related to the
development and improvement of the Real Property, shall use the following routes for egress
c:\Hopciv\Opus PUD Agmt.062906
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from and ingress to the Real Property, namely:
Jackson Avenue to Hennepin County Road No.3 shall be used as the route for egress
from and ingress to the Real Property for the initial phase of development. Haul routes for each
subsequent phase of development of the Real Property shall be approved at the time of site plan
and plat approval for each such phase of development.
F. At the time of approval of the plat for each phase of development of the
Real Property, Developer shall grant the City all required public utility easements or public right-
of-way easements depicted in or contemplated by the approved plat or site plan for each phase of
development of the Real Property, by means of plat dedication or by an instrument in form and
substance reasonably acceptable to the City and Developer.
G. No part of the Real Property shall be used for any of the prohibited uses
described in the Development Design Standards.
H. Developer agrees a representative of the City shall be entitled, upon
reasonable notice and during normal business hours and subject to the rights of tenants and
occupants of the Real Property other than Developer, to enter the new buildings to be constructed
on the Real Property by Developer after their completion for the purpose of testing radio signal
reception strength within each such building. If radio signal reception strength, as reasonably
determined by the City, within any of the buildings to be constructed by Developer on the Real
Property is insufficient for reception of radio signals by police, fire and other emergency
personnel of the City, Developer shall install a signal amplifier within each building in which
radio signal strength is reasonably determined to be insufficient or is determined to be
insufficient in accordance with any applicable City ordinance then in effect, at Developer's sole
cost. The type of signal amplifier to be installed by Developer and its location within the
c:\Hopciv\Opus PUD Agmt.062906
- 20-
building shall be approved by the City, and Developer shall install the signal amplifier within
sixty (60) days of receiving notice from the City requiring such installation.
I. The Park Dedication Fees payable with respect to all of the Real Property
shall total $330,900.00. Developer shall be entitled to receive a credit against these Park
Dedication Fees in an amount equal to the lesser of: (i) $25,000.00; or (2) the actual costs
incurred by Developer in constructing the public trail around the storm water pond located within
the Three-Acre Open Space Parcel, as described in subparagraph 12.J below, exclusive of any
overhead or profit payments to Developer. As a condition of receiving the credit against the Park
Dedication Fees, Developer shall deliver to the City a sworn statement documenting the actual
costs incurred by Developer in constructing the trail, together with copies of all invoices and
statements documenting the costs set forth in such sworn statement. The Park Dedication Fees
shall be payable at the time of plat approval for each phase of development of the Real Property,
and shall be apportioned among the various phases according to the percentage of the total land
area of the Real Property (exclusive of the area of the Three-Acre Open Space Parcel) included
within the plat for each phase of development.
J. Developer shall restore and repair any and all damage to the Regional Trail
System located adjacent to the Real Property to the extent caused by construction or
redevelopment activities of Developer or any of its employees, agents, contractors or
subcontractors. Such restoration shall include the repair or restoration of any damage to trails,
landscaping or other improvements or facilities constituting a part of the Regional Trail System.
As part of the redevelopment of the Real Property, Developer shall provide for connections to the
adjacent Regional Trail System, the location and design of such connections to be subject to
approval by the City at the time of plat and site plan approval for each phase of development of
c:\Hopciv\Opus PUD Agmt.062906
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the Real Property. At such time as Developer elects to proceed with the first phase of
development of the Real Property, if ever, Developer shall also construct, at Developer's sole
cost and expense, a public trail around the storm water pond to be constructed within the Three-
Acre Open Space Parcel. The design and specifications for this trail to be constructed by
Developer shall be generally as set forth in the Regional Storm Water Facility Plan, but the final
design and specifications for such trail shall be subject to review and approval by the City's
Public Works staff, and Developer shall submit plans and specifications for such trail
construction to the City for approval before commencing construction" it being understood that if
the plans and specifications submitted to the City are generally consistent with the Regional
Storm Water Facility Plan, then the City will favorably consider the same. Developer shall
construct such public trail in the Three-Acre Open Space Parcel at such time, if ever, as
Developer proceeds with construction of Improvements for the first phase of development of the
Real Property. If such public trail is constructed by Developer within the Three-Acre Open
Space Parcel, it shall be considered a Public Improvement to be dedicated to the City in
accordance with the provisions of this PUD Agreement.
K. All revisions to the Plans shall be submitted for approval by City Staff,
and additional requirements or conditions for construction of Improvements may be imposed
upon Developer, based upon any material revisions to the Plans. All revised Plans must be
signed by the consultant preparing such Plans, and shall include revision dates.
L. As provided in Paragraph 22 of this PUD Agreement, any paved surfaces
and utilities constructed within the Real Property, other than the Public 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.
c:\Hopciv\Opus PUD Agmt.062906
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M. Any request for closure of a public street by Developer must be
accompanied by a detailed traffic control and detour plan reasonably acceptable to City Staff.
N. Developer shall record a Declaration of Reciprocal Easements, Covenants,
Conditions and Restrictions ("Declaration") against the title to all of the Real Property (with the
exception of the Three-Acre Open Space Parcel) governing the use, operation, maintenance,
repair, design and construction of the redevelopment of the Real Property, and establishing
reciprocal easements for parking, access, utilities, sign construction and other appropriate
covenants, conditions and restrictions. Developer shall deliver a draft of the Declaration to the
City for review and approval before recording the Declaration. The City shall not unreasonably
withhold, delay or condition its approval of the Declaration, but Developer shall incorporate all
revisions to the Declaratio,n reasonably requested by the City consistent with the provisions of the
Development Plan and this PUD Agreement. If the City fails to notify Developer of any
objections or requested changes to the Declaration within ten (10) business days after delivery of
a copy of the Declaration to the City, the City shall be deemed to have approved the Declaration.
O. Developer shall otherwise comply with all conditions and requirements
imposed by the City Council of the City in its Resolution No. 06-39 approving Ordinance No.
06-966 for the overlay PUD zoning for the Real Property and with the requirements of any
applicable statutes, ordinances, codes or regulations; provided, however, in the event of any
conflict between the terms and provisions of said Resolution No. 06-39 and Ordinance No. 06-
966, on the one hand, and the terms and provisions of this PUD Agreement on the other hand, the
terms and provisions of this PUD Agreement shall govern and control.
P. Landscaping materials to be installed by Developer shall be of a size,
species and quantity generally as depicted on the Landscaping Plan attached hereto and made a
c:\Hopciv\Opus PUD Agmt.062906
- 23 -
part hereof as Exhibit C and the Master Plant List attached to the Landscaping Plan. The
perimeter landscaping of the Real Property (exclusive of the Three-Acre Open Space Parcel) will
be generally in accordance with such Landscaping Plan, but it is understood that the specific
locations of internal landscaping will vary as redevelopment progresses. In no event shall the
overall land area dedicated to landscaping (i.e., lawn, boulevards, water features, and related
items) on the Real Property be less than fifteen percent (15%) of the total surface area of the Real
Property (exclusive of the Three-Acre Open Space Parcel). Additionally, the total budget for
landscaping, based upon full development of the Real Property, will be equal to or greater than
one percent (1 %) of project cost. At a minimum, landscaping associated with the initial building
to be constructed for the first phase of development of the Real Property shall include
landscaping for the primary access point to the Real Property along Jackson A venue and for the
secondary access point to the Real Property along Second Street NE; landscaping for the south,
northeast and northwest ponds; landscaping for the central water feature; landscaping along
Excelsior Boulevard frontage, and frontage and perimeter landscaping around the initial phase,
each as generally shown on the Landscaping Plan.
Q. Monument signage will be permitted as follows: One monument sign
shall be permitted for each building, provided the surface area of the sign is limited as hereinafter
set forth, and provided, further, that no more than five (5) total monument signs shall be
permitted. Additionally, monument signage with tenant identification shall be permitted at the
primary access point to the Real Property along Jackson Avenue, provided the surface area of the
sign does not exceed 150 feet per side and 15 feet in height, and monument signage generally
depicting the development name shall be permitted at the secondary access point to the Real
Property along Second Street NE, provided the surface area of the sign does not exceed 80 square
c:\Hopciv\Opus PUD Agmt.062906
- 24-
feet per side and 10 feet in height. Finally, one monument sign shall be permitted along
Excelsior Boulevard frontage, generally depicting the development name, provided the surface
area of the sign does not exceed 250 square feet per side, and 6 feet in height.
Building signage will be permitted as follows: Each tenant, other than those in
multi-tenant buildings, may have 2 flat wall signs, not extending more than 18 inches from the
face of the building, except that such signage may extend from the face of the roof over a covered
walk. Each wall sign shall not exceed 15% of the area of the wall to which the sign is attached,
to a maximum of250 square feet per sign. Each tenant in a multi-tenant building may have a flat
wall sign, not extending more than 18 inches from the face of the building. Each such multi-
tenant building sign shall not exceed 5% of the area of the wall to which the sign is attached, to a
maximum of 250 square feet per sign. No more than 4 wall signs shall be permitted on any
multi-tenant building.
13. ComDliance With Other Requirements" Assi2nment bv DeveloDer"
Termination. Developer agrees that it shall comply with this PUD Agreement, 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 and benefit the Developer and the City and
each and every subsequent owner of any part of the Real Property and their respective successors
and assigns, and shall operate as a covenant passing with the title to the Real Property and any
part thereof. However, by accepting the dedication or conveyance of the Three-Acre Open Space
Parcel, the City shall not incur or be subject to any liability, obligation or undertaking imposed
upon Developer by this PUD Agreement. By accepting a conveyance of all or any part of the
title to all or any part of the Real Property, each of the successors or assigns of Developer agrees
c:\Hopciv\Opus PUD Agmt.062906
- 25-
to be bound by all of the terms, covenants, conditions, liabilities and obligations imposed by this
PUD Agreement, provided no mortgagee shall be deemed to have assumed responsibility for
performance of such terms, covenants, conditions, liabilities and obligations, except as expressly
provided in Paragraph 21 of this PUD Agreement. All of said terms, conditions and restrictions
are imposed upon the Real Property as a servitude in favor of the City of Hopkins, Minnesota, for
its benefit and for the benefit of Developer and its successors and assigns. Developer
acknowledges the City has approved the Planned Unit Development zoning of the Real Property
and is entering into this PUD Agreement, in part, in reliance on the ability and financial strength
of Developer. Therefore, Developer and the City agree to the following terms and conditions
regarding assignment or transfer of Developer's interest in the Real Property and rights under this
PUD Agreement:
A. Developer may aSSIgn or otherwise transfer its rights in this PUD
Agreement or in any part of the Real Property included within any phase of development of the
Real Property to a subsequent owner of such phase of development prior to commencement of
development of such phase of development without the prior written consent of the City on the
condition that, in the event of such a transfer or assignment, Developer shall remain liable for all
of Developer's liabilities and obligations hereunder related to construction of the First Phase
Improvements and Developer's transferee or assignee shall also be liable for completion of any
Public Improvements the City may require to be completed as a condition of approval of
development of the phase of development of the Real Property in question in accordance with the
terms and conditions of this PUD Agreement.
B. If Developer has commenced development of any particular phase of
development of the Real Property, Developer may thereafter transfer or assign its interest in such
c:\Hopciv\Opus PUD Agmt.062906
- 26-
phase of development of the Real Property and its rights under this PUD Agreement related
thereto to a subsequent owner without the prior approval of the City, but subject to the condition
that, in the event of such a transfer or assignment, Developer will retain primary responsibility
for development of the phase of the Real Property in question through completion of such phase
of development and Developer shall be liable for completion of construction of the First Phase
Improvements and any other Public Improvements required to be completed as a condition of the
City's approval of such phase of development and satisfaction of all conditions of this PUD
Agreement related to such Public Improvements.
C. After completion of any of the individual phases of development of the
Real Property, including any Public Improvements to be completed as a condition of approval of
such phase of development, Developer may transfer or assign its interest in that part of the Real
Property included in such phase of development and its rights or obligations under this PUD
Agreement to a subsequent owner of such completed phase of development in connection with
the transfer of title to that part of the Real Property included within such phase to such
subsequent owner without the prior approval of the City.
D. Each subsequent owner, transferee or assignee of Developer shall assume
Developer's obligations under this PUD Agreement as they apply to that part of the Real
Property transferred to the subsequent owner and, further provided, such assignment shall not; i)
relieve Developer of any obligation arising prior to the effective date of the assignment; or ii)
relieve Developer of any of its obligations with respect to any part of the Real Property still
owned by Developer.
E. Developer may collaterally assign its interest in this PUD Agreement as
security for any financing obtained by Developer for the development or improvement of the
c:\Hopciv\Opus PUD Agmt.062906
- 27-
Real Property, provided any such assignment shall not relieve Developer of any of its liabilities,
obligations or undertakings under this PUD Agreement.
Developer shall not assign its rights or obligations under this PUD Agreement except in
accordance with Subparagraphs 13A, B, C, D and E, above.
The terms, conditions and restrictions established by this PUD Agreement are perpetual
in duration except that, upon Developer's completion of all of the Regional Storm Water Facility,
the Demolition and Restoration Work and the public trail located on the Three-Acre Open Space
Parcel described in Paragraphs 4.B, 12.B and 12.J of this PUD Agreement in compliance with the
provisions of said Paragraphs 4.B, 12.B and 12.J and upon written request therefor from
Developer, the City shall, as soon as reasonably possible, execute and deliver to Developer a
Certificate, in recordable form, certifying as to Developer's compliance with the provisions of
said Paragraphs 4.B, 12.B and 12.J.
Notwithstanding any provision of this PUD Agreement apparently to the contrary, at such
time as i) the First Phase Improvements have been completed by Developer and accepted by the
City in accordance with the terms and conditions of this PUD Agreement, and ii) Developer has
completed development of any particular phase of the Real Property as to which Developer has
commenced construction (including any Public Improvements required to be completed as a
condition of approval of the plat or site plan for such phase of development) and the City has
accepted any Public Improvements constructed as part of the development, of such phase of
development, Developer shall be released from its liabilities and obligations under this PUD
Agreement related to construction or completion of the work and improvements described in
Clauses i) and ii) of this Paragraph F, with the exception of Developer's warranties as stated in
this PUD Agreement, and, if Developer is no longer the fee owner of a particular phase of
c:\Hopciv\Opus PUD Agmt.062906
- 28-
development of the Real Property, Developer shall also be released from any other liability or
obligation not theretofore accrued with respect to such phase of development, with the exception
of Developer's warranties as aforesaid.
14. Security and Claims. To guaranty Developer's compliance with the terms of this
PUD Agreement (including any warranties provided for herein), payment of the cost of all Public
Improvements and completion of construction thereof, Developer shall deliver to the City the
following Letter(s) of Credit, surety bond(s) or performance bond(s) reasonably acceptable to and
in favor of the City (the "Security") issued by a bank or surety reasonably acceptable to the City,
it being understood that the form of performance bond attached hereto and made a part hereof as
Exhibit E and the surety named therein (CNA) are acceptable to the City:
A. The Security for the landscaping improvements comprising a part of the
Improvements with respect to each phase of development of the Real Property shall be delivered
to the City before the execution and release of the plat for each phase of development of the Real
Property 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 with respect to each phase
of development of the Real Property, as established by a written estimate submitted by
Developer's landscaping contractor.
B. The Security for the Public Improvements, other than landscaping
improvements, shall be delivered to the City before commencement of construction of the Public
Improvements for each phase of development of the Real Property or issuance of a permit by the
City permitting commencement of such construction. Developer acknowledges the City may
require Developer to construct First Phase Improvements as a condition of approval for
development of the first phase of development of the Real Property and additional Public
c:\Hopciv\Opus PUD Agmt.062906
- 29-
Improvements as a condition of approval of the plat or site plan for each subsequent phase of
development of the Real Property. The amount of such Security for the Public Improvements to
be constructed as a condition of the approval of any particular phase of development of the Real
Property, other than landscaping improvements, shall equal 100 percent of the cost of such
Public Improvements as established by: i) the estimated cost of completion of construction of
such Public 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 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 Public
Improvements for which the Security is provided, performance of Developer's warranty under
Paragraph 8 of this PUD Agreement including replacement of any defective or nonconforming
Public Improvements and payment of the entire cost thereof, and the form and content of the
Security shall be subject to the reasonable approval of the City, provided the City acknowledges
it has approved the performance bond in the form attached hereto as Exhibit E. The Developer
shall maintain the Security in effect for a term ending two (2) years after the date on which
Developer has substantially completed the Public Improvements for which the security was
provided and delivered proof of payment therefore to the City (which latter date is herein referred
to as the "Termination Date"). Developer 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 (and provided the
City has notified Developer of such failure and Developer has not delivered written evidence of
extension of the Security to the City, as aforesaid, within five (5) days thereafter), Developer
c:\Hopciv\Opus PUD Agmt.062906
- 30-
shall deliver to the City original written evidence, in form reasonably acceptable to the City,
extending the term of the Security for successive one (1) year periods, but in no event extending
beyond the Termination Date. If Developer fails to deliver such original written evidence of
extension of the Security at least thirty (30) days before expiration of the Security, Developer
shall be deemed to be in default under this PUD Agreement and the City may draw upon the
Security. Upon receipt of evidence acceptable to the City of payment of financial obligations
related to the construction of the Public Improvements, the Security shall be reduced from time
to time as financial obligations relating to the construction of the Public Improvements are paid,
but in no case shall the Security be reduced to an amount less than the greater of: i) one hundred
percent (100%) of the cost of completion of any incomplete Public Improvements; or ii) forty
percent (40%) of the total cost of the Public Improvements (such cost to be determined in the
manner specified in Subparagraph B of this Paragraph 14) until the Termination Date.
Notwithstanding the provisions of the preceding sentence, the Security for the landscaping
improvements comprising a part of the Improvements may not be reduced, and shall be
maintained at its original amount until one (1) year after completion of such landscaping
improvements. The City may draw upon or enforce the Security for any violation of the terms of
this PUD Agreement which is not cured within ten (10) business days after written notice to the
Developer, provided, in the event the default is such that it cannot be cured with reasonable
diligence within ten (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 such additional period of time not exceeding one hundred eighty (180) days after the
initial written notice of default to Developer as is necessary to cure the default proceeding with
all due diligence. If the Public Improvements are not completed as required by this PUD
c:\Hopciv\Opus PUD Agmt.062906
- 31 -
Agreement or any Amendment thereto following expiration of any applicable grace or cure
period, the City may also draw upon or enforce the Security, but only in accordance with the
terms and conditions of this PUD Agreement. Notwithstanding the foregoing, the City shall, in
any event, be entitled to draw upon the Security if Developer fails to deliver written evidence of
extension of the Security at least thirty (30) days before its expiration, but only in accordance
with the terms and conditions stated in this Paragraph 14. If the Security is drawn upon, the draw
shall be used to cure the default (including completion of the Public Improvements by the City,
provided the City shall have no obligation to complete the Public Improvements) and may also
be used to payor reimburse the City for any cost, expenses or damages recoverable under
Paragraph 15 of this PUD Agreement. The Security shall be released to Developer on the
Termination Date. In the event the City receives notice of or claims from laborers, materialmen
or others contributing to the Public 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 assert claims against the City, the Public Improvements or the land on which the Public
Improvements have been installed, and if such claims are not fully resolved, either by i) the
unconditional release or satisfaction thereof, H) by bonding over any resulting lien in accordance
with applicable laws, Hi) by furnishing the City a title insurance endorsement reasonably
acceptable to the City insuring against any loss of damage sustained by the City by reason of
enforcement of any resulting lien, or iv) by Developer's provision of such additional security or
order of a court of competent jurisdiction as shall be reasonably acceptable to the City, at least
forty-five (45) days before the Security will expire, the City may draw upon or enforce the
Security, but only in the manner provided for in this Paragraph 14, for the purpose of discharging
any such claims (provided the City shall have no obligation to draw upon the Security or
c:\Hopciv\Opus PUD Agmt.062906
- 32-
discharge claims) and may also draw upon or enforce the Security to payor reimburse the City
for any cost, expense or damages recoverable under Paragraph 15 of this PUD Agreement, and
Developer authorizes the City to draw upon or enforce the Security for those purposes. The
Developer agrees that it shall protect, indemnify and hold the City and its agents, representatives
and employees harmless from and against all costs, damages and liabilities, including reasonable
attorneys' fees and Court costs, resulting from or incurred in connection with Developer's failure
to comply with the terms, covenants, conditions and requirements of this PUD Agreement. The
City shall tender defense of any claim from which Developer is obligated to indemnify the City
within a reasonable period of time after the City first receives notice of such a claim so as to
avoid prejudice to Developer for handling by counsel selected by Developer and reasonably
acceptable to the City.
15. Enforcement of PUD A2reement. The terms, conditions, requirements and
restrictions established by this PUD Agreement and any Amendments thereto shall be
enforceable exclusively by the parties to this PUD Agreement and shall be enforceable by
injunctive relief, prohibitive or mandatory, to prevent the breach of or enforce performance or
observance of the terms, conditions, requirements and restrictions established by this PUD
Agreement, or by any other available legal proceeding or remedy, including, but not limited to:
a. Legal proceedings to recover, collect, payor reimburse the City for the
cost of completing construction of any Public Improvements required to be
constructed by Developer and not so constructed following expiration of
any applicable cure period stated in this PUD Agreement.
b. Taking whatever action at law or in equity as may be reasonably necessary
or desirable to enforce performance and observance of any of the
obligations, agreements or covenants of the Developer under this PUD
Agreement.
c. Recovery of all costs and expenses incurred by the City in curing any
default (other than defaults of the type described in Subparagraphs a and b,
c:\Hopciv\Opus PUD Agmt.062906
- 33 -
above) by Developer in the performance of any of the terms, covenants
and conditions of this PUD Agreement.
d. Recovery of all reasonable costs, fees and expenses for engineering, legal
and administrative fees and expenses incurred by the City in enforcing
Developer's performance of this PUD Agreement or the completion of
construction of the Public Improvements required to be completed by
Developer under this PUD Agreement or any amendment thereto.
e. Any other remedy or sanction provided by Minnesota Statutes or the
Ordinances of the City of Hopkins.
Notwithstanding the above provisions or any other prOVISIon of this PUD
Agreement apparently to the contrary, in no event shall Developer be liable to the City for any
consequential, ~ncidental or other indirect damages or punitive damages, with the exception of
any such damages claimed or recovered by third parties against the City from which Developer is
obligated to indemnify the City.
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
PUD Agreement before incurring third-party costs and expenses that are recoverable from
Developer under Subparagraphs a-e of this Paragraph 15, provided Developer shall proceed with
all due diligence to cure any such default and shall cure the same within thirty (30) days after
delivery of Notice of Default to Developer, provided, if the default is of such a nature that it
cannot be cured within thirty (30) days, Developer shall have such additional period of time to
cure such default as is necessary exercising and proceeding with all due diligence. If Developer
fails to pay any amount due to the City under this PUD Agreement or any Amendment thereto
following final adjudication such amount is due and payable, and thereafter fails to pay such
amount 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
c:\Hopciv\Opus PUD Agmt.062906
- 34-
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 and the City acknowledge the rights of the
Developer and 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 or the City violates or fails or refuses to perform any
term, condition or restriction established by this PUD Agreement, the other party shall have no
adequate remedy at law. Developer and the City agree, therefore, that in the event Developer or
the City violates any term, condition or restriction established by this PUD Agreement or any
Amendment thereto, the other party, may, at its option, initiate and prosecute an action to
specifically enforce the performance of the terms, conditions and restrictions established by this
PUD Agreement or any Amendment. 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 Developer or the City to enforce any of the terms, conditions and restrictions
established by this PUD Agreement or any Amendment 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, in the event Developer defaults in the performance or observance of any of its
obligations or undertakings under this PUD Agreement or any amendment thereto, and upon final
adjudication by a court of competent jurisdiction of such default, Developer shall pay the City's
reasonable attorneys' fees and expenses incurred as a result of such default. The City agrees that,
in the event the City defaults in the performance or observance of any of its express obligations
or undertakings under this PUD Agreement, and upon final adjudication by a court of competent
jurisdiction of such default, the City shall pay Developer's reasonable attorney fees and expenses
c:\Hopciv\Opus PUD Agmt.062906
- 35 -
incurred as a result of such default by the City.
.
Developer and the City agree that jurisdiction and venue for any proceeding to enforce
any rights, remedies or obligations under this PUD Agreement shall be in the District Court of
Hennepin County, Minnesota, and that any proceeding to enforce the provisions of this
Agreement shall be filed in said District Court.
16. Notices. Any notice, request or other communication required or provided to be
given under this PUD Agreement or any Amendment thereto shall be in writing and shall be
deemed to be duly given when delivered personally to an officer or manager of Developer or to
the City Manager of the City, or the next business day after deposit with a reputable delivery
service such as UPS overnight or Federal Express guaranteeing next-day delivery or two (2)
business days after having been mailed by first class United States Mail, postage prepaid,
addressed as follows:
To Developer:
Opus Northwest, L.L.C.
10350 Bren Road West
Minnetonka, MN 55343
Attn: Vice President, Real Estate Development - David J. Menke
With copies to:
Opus Northwest, L.L.C.
10350 Bren Road West
Minnetonka, MN 55343
Attn: Legal Department - Brad J. Osmundson
U.S. Bank National Association
U. S. Bancorp Center
800 Nicollet Mall, Third Floor
BC-MN-H03A
Minneapolis, MN 55402-7020
Attn: Real Estate Banking Division
Mark W . Westra, Esq.
Attorney for U.S. Bank National Association
Fabyanske, Westra, Hart & Thomson
c:\Hopciv\Opus PUD Agmt.062906
- 36-
.
800 LaSalle Avenue, Suite 1900
Minneapolis, MN 55402
To City:
City of Hopkins
1010 First Street South
Hopkins, MN 55343
Attn: City Manager
or to such other address as either party, by notice given as herein provided, shall designate. The
City and Developer agree that the attorneys for either party may give, but not receive, any notice,
request or other communication required or provided to be given under this PUD Agreement or
any amendment thereto on behalf of such party. Any party may change its address for notice
purposes upon ten (10) days notice to the other party in the manner required by this Paragraph 16.
Any notice to Developer's successors in title to the Real Property shall be deemed properly given
and delivered for all purposes if forwarded to the address of the record owner( s) of the Real
Property at the time notice is given, as such addresses are stated in the records of the Hennepin
County Property Tax Department.
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 restrictions, all of which shall remain in full
force and effect.
18. Headin2s. The headings and captions at the beginnings of paragraphs of this
PUD Agreement are for convenience of reference only and shall not influence its construction.
19. Execution of CounterDarts. This PUD Agreement may be simultaneously
executed in several counterparts, each of which shall be an original, and all of which shall
constitute one and the same instrument.
20. Construction. This PUD Agreement shall be construed and enforced In
c:\Hopciv\Opus PUD Agmt.062906
- 37-
.
accordance with the laws of the State of Minnesota.
21. Evidence of Title_ Recordation of PUD A2reement_ Mort2a2ee's Protection.
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 current Commitment for
Owners' Title Insurance (ALTA form). The title insurance commitment shall show good and
marketable title to the Real Property in Developer subject to such matters as are reasonably
acceptable to Developer and do not affect the priority or enforceability of this PUD Agreement,
and shall otherwise be reasonably acceptable to the City Attorney, it being understood that this
PUD Agreement, when recorded, shall have priority over any mortgage or similar lien
encumbering the Real Property. Developer shall cause this PUD Agreement to be executed by or
consented to by all persons holding any interest in the title to the Real Property, or lien thereon,
as deemed necessary by the City. Developer agrees to cause this PUD Agreement to be filed for
record as an encumbrance against the title to the Real Property. As a condition of plat approval
for any phase of development of the Real Property, the City shall be entitled to require that
Developer provide the City with owners title insurance at Developer's expense insuring the
City's interest in any public easements or rights-of-way to be granted to the City as a condition of
such approvals, which title insurance shall affirmatively insure against liens resulting from non-
payment for any labor or materials incorporated in or constituting a part of any Public
Improvements required to be constructed by Developer and located within such easements or
rights-of-way.
While this PUD Agreement shall have priority over any mortgage, ground lease, trust
deed or similar lien encumbering the Real Property, the obligations of Developer and its
successors to complete construction of any Improvements, including the Public Improvements,
c:\Hopciv\Opus PUD Agmt.062906
- 38-
under this PUD Agreement shall not be binding upon any mortgagee, ground lessor or trust deed
holder (collectively "Mortgagee") that acquires title to all or any part of the Real Property
through foreclosure or deed in lieu of foreclosure, but any such Mortgagee shall not be entitled to
proceed with development of the Real Property, obtain any consent or approval to be obtained
from the City for such development or enforce any rights such Mortgagee may have under any
collateral assignment of this PUD Agreement unless and until such Mortgagee has consented in
writing to be bound by all of the terms, covenants and conditions of this PUD Agreement.
If, within ten (10) business days of service of Notice of Default ("Notice of Default")
hereunder upon Developer by the City, Developer delivers notice to the City requesting that the
City serve a copy of the Notice of Default upon any Mortgagee, which notice to the City shall
include the address at which a copy of the Notice of Default is to be delivered to the Mortgagee,
the City shall deliver a copy of the Notice of Default to the Mortgagee in the manner specified in
Paragraph 16 of this PUD Agreement. If Developer fails to cure the default described in the
Notice of Default within the time provided in this PUD Agreement, then any Mortgagee to which
a copy of the Notice of Default is delivered shall have an additional period of thirty (30) days
after expiration of the time provided in this PUD Agreement within which to cure such default
or, if the default is of a nature that it cannot be cured within thirty (30) days, then such additional
period of time as is necessary to cure the default if, within the initial thirty (30) day period,
Mortgagee commences and thereafter diligently and continuously pursues all measures necessary
to cure the default specified in the Notice of Default.
22. OwnershiD_ Maintenance and ReDair of ImDrovements. The City shall not be
responsible for the maintenance or repair of any of the Improvements other than the Public
Improvements upon their acceptance by the City in accordance with the terms of this PUD
c:\Hopciv\Opus PUD Agmt.062906
- 39-
Agreement, 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 such Improvements,
together with all modifications or replacements thereof or additions thereto. The City shall cause
the Intersection Improvements to be designed and constructed in accordance with the City's
standard practices for publicly bid assessable public improvement projects as in effect at the time
of construction of the Intersection Improvements. The City shall also maintain the Intersection
Improvements in the same manner as similar public improvements are maintained by the City.
The Developer shall protect, indemnify and hold the City, and its officials, representatives,
agents and employees, harmless from and against all liabilities, obligations, responsibilities,
claims, costs, expenses (including reasonable attorney's fees), demands and causes of action
relating to or arising out of, directly or indirectly, the design or construction of the Public
Improvements required to be constructed by Developer, including, but not limited to, claims for
injury to persons or property. Notwithstanding the foregoing, the City shall be responsible for
ownership, use, maintenance and repair of the Public Improvements following their acceptance
by the City, but subject to: i) the Developer's warranty of the Public Improvements; ii) the
provisions of any City ordinance of general applicability imposing upon property owners the
obligation to perform snow and ice .removal or similar maintenance of publicly owned
improvements such as the Public Improvements; and Hi) the City's authority pursuant to statute
and City ordinance or charter provisions to levy special assessments to pay costs of repair or
replacement of publicly owned improvements.
23. Conflicts. If any express term, condition or provision of this PUD Agreement
directly conflicts with or modifies any express term, condition or provision of the Hopkins City
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.
Code of Ordinances as in effect on the date of this PUD Agreement, the conflicting term,
condition or provision of this PUD Agreement shall supersede and control; but only to the extent
of such conflict or modification, it being intended that, except to the extent of any express
conflict, as aforesaid, this PUD Agreement shall be interpreted in a manner consistent with the
Hopkins City Code of Ordinances. Subject to the foregoing, no conflict with or modification of
any of the terms, conditions, provisions or requirements of the Hopkins City Code of Ordinances
is implied by or shall be inferred from this PUD Agreement, it being intended that the terms,
conditions, provisions and requirements of the Hopkins City Code of Ordinances are modified by
this PUD Agreement only to the extent expressly stated herein. No provision of this PUD
Agreement, including this Paragraph 23, is intended or shall be interpreted to in any way restrict
the City from enacting future amendments and modifications to the Hopkins City Code of
Ordinances, provided: i) such amendments or modifications shall not amend or modify this PUD
Agreement or the rights of Developer hereunder or those of its successors in title to the Real
Property unless such amendment or modification is agreed to by Developer or such successors in
title, and ii) such future amendments and modifications shall be subject to any non-conforming
use rights or any other rights Developer or its successors may have under this PUD Agreement,
the Hopkins City Code of Ordinances, Minnesota Statutes or common law. Developer and its
successors shall be entitled to the benefit of any future amendments or modifications of the
Hopkins City Code of Ordinances that impose less restrictive requirements than those presently
in effect, provided such amendments or modifications are of general applicability or are
specifically applicable to Developer, its successors or the Real Property, but no provision of this
Paragraph 23 shall be interpreted to impose upon the City any duty to amend or modify its Code
of Ordinances in the future.
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24. Estoppel Certificate. The City agrees that it will, from time to time, upon
reasonable prior written request by Developer, execute and deliver to Developer and such other
parties as Developer may reasonable designate, within thirty (30) days following request therefor,
an Estoppel Certificate certifying that i) this PUD Agreement is unmodified and in full force and
effect (or if there have been modifications, that the same are in full force and effect as so
modified), ii) that to the knowledge of the City, there are no defaults hereunder (or specifying any
claimed defaults), iii) certifying as to the status of completion and acceptance of any Public
Improvements and the amount of the Security currently on deposit with the City, and iv) such
other matters as may be reasonably requested by Developer, including, without limitation,
certifications as to the completion and acceptance of the Public Improvements contemplated by
this PUD Agreement and the amount of Security outstanding. The City shall not be liable to
Developer for money damages, costs, expenses, attorney fees or any other amount claimed by
Developer or its successors as a result of the City's alleged failure to comply with the provisions
of this Paragraph 24.
25. Consents. Whenever the consent or approval of either party (or any party acting
on behalf of either party) is required under this PUD Agreement, such consent shall not be
unreasonably withheld, delayed or conditioned. Each party shall act in good faith in regard to the
performance or observance of any term, covenant or condition of this PUD Agreement,
including, without limitation, approving or disapproving any request, including any request for
reduction of any Security or approval of Plans or Improvements. However, subject to the
provisions of Paragraph 23 of this PUD Agreement, no provision of this Agreement (other than
said Paragraph 23) shall be interpreted to limit the City's lawful discretion with regard to the
approval of any future plat, site plan, permit or other approval required for the development of
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the Real Property.
26. Unavoidable Delays. Whenever a period of time is herein prescribed for action
to be taken by Developer or the City, Developer or the City shall not be liable or responsible for,
and there shall be excluded from the computation of any such period of time, any Unavoidable
Delays.
27. Further Assurances. The City and Developer each agree to do, execute,
acknowledge and deliver any and all other reasonable documents and instruments and to take all
such further reasonable actions as shall be necessary or required in order to fully carry out the
terms of this PUD Agreement and to fully consummate and effect the transactions contemplated
hereby.
IN WITNESS WHEREOF, Developer and the City have executed this PUD Agreement
as of the date and year first above written.
OPUS NORTHWEST, L.L.C.
By
Its
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
2006, by
the , of Opus Northwest, L.L.C., a limited liability company
under the laws of the State of Delaware, on behalf of the limited liability company.
Notary Public
CITY OF HOPKINS
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By
Its
By
Its
- 44-
STATE OF MINNESOTA )
) ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
2006, 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:
Steiner & Curtiss, P .A.
400 Wells Fargo Bank Building
1011 First Street South
Hopkins, Minnesota 55343
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