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VII.1. Ovation Apartments (Former Hopkins Cinema 6) Rezoning and PUD Agreement; KrzosSeptember 6, 2022 Council Report 2022-075 Hopkins Apartments (Former Hopkins Cinema 6) Rezoning Proposed Action: Staff recommends the City Council approve the following motions: •Move to adopt Resolution 2022-053 approving the second reading of Ordinance 2022-1183 rezoning the property at 1118 Mainstreet (PID 24-117-22-34-0249) from B-2, Central Business District to B-2, Central Business District with a Planned Unit Development. •Move to adopt Resolution 2022-057 approving the Hopkins Apartments Planned Unit Development (PUD) Agreement and authorizing the Mayor and City Manager to enter into this agreement, subject to any modification approved by the City Attorney. Overview Enclave Companies is proposing a redevelopment of the former Mann Theater located along Mainstreet between 11th Avenue and 12th Avenue South. Initially referred to as Hopkins Apartments, the development is now named Ovation Apartments. The applicant’s plans call for a 4-story, 150-unit mixed use building with approximately 5,382 square feet of commercial space. The first reading of the ordinance rezoning the site was held on August 1, 2022. The site is currently guided Downtown Center by the 2040 Comprehensive Plan and zoned B-2, Central Business District. As part of the necessary approvals, the applicant requests rezoning to B-2, Central Business District with a Planned Unit Development (PUD) to allow flexibility from some of the B-2 zoning standards in exchange for a higher quality development. Since the first reading, the developer has agreed to add rooftop solar as an additional exchange. The applicant, Brian Bochman with Enclave Companies, requests approval of the second reading of Ordinance 2022-1183 and approval of the PUD Agreement. A Business Subsidy Agreement, Loan Agreement and Parking Agreement for use of the City’s municipal ramp will also be considered by the HRA/City Council. Together, these agreements will finalize the rezoning of this site and the public assistance committed to the development. Primary Issues to Consider •Background •Planned Unit Development Review •Alternatives Supporting Documents •Resolution 2022-053 •Ordinance 2022-1183 •Resolution 2022-057 •PUD Agreement _____________________ Ryan Krzos, City Planner Kersten Elverum, Director of Planning and Development Financial Impact: $ N/A Budgeted: Y/N ____ Source: _____________ Related Documents (CIP, ERP, etc.): _________________________________________ Notes: BACKGROUND Development Proposal. The 1.88 acre subject property was originally platted as part of the West Minneapolis Addition in 1887. The existing Hopkins Cinema 6 Movie Theatre was constructed in 1995 as part of a redevelopment of this property which included the movie theatre, three retail spaces and a 5,000 square foot casual dining restaurant. The movie theatre property was owned by the Beard Group who leased it to the Mann Theatres Group. Prior to 1995, the site was occupied by the Suburban Chevrolet automobile dealership. The Hopkins Housing and Redevelopment Authority (HRA) purchased the subject property from Suburban Chevrolet and sold it to the Beard Group in 1995 and executed a development agreement with the developer (the Beard Group) which included both financial and site and building design requirements for the project. The financial requirements created Tax Increment District 1-2 encompassing the subject property which generated tax increment dollars to offset public costs in conjunction with redeveloping the site. That TIF District obligation ended in 2020. On November 20, 2020, Mann Theatre – Hopkins Cinema 6 permanently closed its business due primarily to the continuing COVID-19 pandemic. In 2021, the City reviewed a concept plan related to redevelopment of the site brought forward by a different developer. Enclave Companies recently secured an agreement to purchase the site, and is now seeking land use approvals. The redevelopment would provide a residential mix of 67 alcove, 22 studio, 47 one- bedroom, and 14 two-bedroom market rate apartments; and 5,382 square feet of commercial space on the ground floor accessed from Mainstreet. Review Process to Date The City Council approved the first reading of this rezoning ordinance, along with the corresponding site plan and conditional use permit, on August 1, 2022. Prior to that action, the Planning & Zoning Commission held a public hearing to review these items and recommended approval by the City Council on July 26, 2021. The Planning Commission’s recommendation included a stipulation that the developer shall explore the addition of affordable housing and sustainability certifications and/or features in support of the Planned Unit Development (PUD) request. The applicant has revised their proposal to include rooftop solar panels in support of the PUD request. It is anticipated that residential affordability would be tied to an increased financial assistance request and staff recommends that it not be considered a PUD benefit. Should the City Council approve the second reading of this ordinance and the planned unit development agreement, it would rezone the subject property from B-2, Central Business District to B-2, Central Business District with a Planned Unit Development (PUD) and authorize the Mayor and City Manager to enter into the PUD agreement. PLANNED UNIT DEVELOPMENT REVIEW The purpose of a planned unit development is to allow flexibility from traditional development standards in return for a higher quality development. Typically, the City looks for a developer to exceed other zoning standards, building code requirements or meet other goals of the Comprehensive Plan. In exchange for the flexibility offered by the planned unit development, the applicant is expected to detail how they intend to provide a higher quality development or meet other City goals. The requested rezoning of the site from B-2, Central Business District to B-2, Central Business District with a Planned Unit Development (PUD) would allow the applicant to deviate from some of the zoning regulations as detailed in the table below. The applicant is seeking this flexibility in exchange for the project delivering sustainability features including rooftop solar, electric vehicle charging stations, pedestrian connection from 12th Avenue South to 11th Avenue South, three pedestrian level art installations, and a building design that includes design and amenity features above and beyond minimal underlying zoning requirements. Requested Planned Unit Development Deviations Zoning Category Zoning Requirement Requested Deviation Conditional Use Permit Residential Dwellings Prohibited On 1st Floor Allow Residential Dwellings on First Floor One underground space per unit 120 underground stalls proposed. 30 stalls located in surface lot, and conceptual agreement on lease of 40 stalls in municipal garage Density limited to allowance for R-4 (44 unit/ac) 79.6 units per acre in accordance with guided range of 20-100 units per acre in the Downtown Center Off-street Parking: 2 stalls per unit 1.26 stalls per unit Building Height Four Stories or 45 ft 47.9 ft as measured along Mainstreet COMPREHENSIVE PLAN The development proposal is in conformance with the City’s Comprehensive Plan including the following goals: • Welcome growth to the city by directing most of new housing and employment to the city’s mixed use centers and employment districts. • Encourage all public and private developments to be well-designed, durable, human- scaled and pedestrian oriented. • Support the development of a safe, connected, accessible network of regional and local bicycle and pedestrian facilities in Hopkins. • Grow the supply of housing in Hopkins, particularly in targeted areas. • Support the vision of a community where everyone has access to the resources and opportunities needed to live healthy, active lives. (The site is very conducive to an active lifestyle with a walk score of 90) • Encourage sustainable practices in locating, designing, constructing and maintaining development in the city. • Support the development of a strong, vibrant, livable community that attracts jobs, population and investment. • Maintain a viable downtown core that serves as an economic and social center for the community. • Continue to grow Downtown’s population and jobs base. ALTERNATIVES 1. Vote to approve the rezoning and planned unit development for 1118 Mainstreet. 2. Vote to deny the rezoning and planned unit development for 1118 Mainstreet. Should the City Council consider this option, it must also identify specific findings that support this alternative. 3. Continue for further information. If the City Council finds that further information is needed, the items should be continued. CITY OF HOPKINS Hennepin County, Minnesota RESOLUTION 2022-053 A RESOLUTION APPROVING THE SECOND READING OF ORDINANCE 2022-1183 REZONING THE PROPERTY WITH PID 24-117-22-34-0249 FROM B-2, CENTRAL BUSINESS DISTRICT TO B-2, CENTRAL BUSINESS DISTRICT WITH A PLANNED UNIT DEVELOPMENT, SUBJECT TO CONDITIONS WHEREAS, the applicant, Enclave Companies, initiated an application requesting to rezone the property addressed as 1118 Mainstreet (PID 24-117-22-34-0249) from B-2, Central Business District to B-2, Central Business District with a Planned Unit Development (PUD), and WHEREAS, this property is legally described in Exhibit A; and WHEREAS, the procedural history of the application is as follows: 1. That the above stated application was initiated by the applicant on June 24, 2022; and, 2. That the Hopkins Planning & Zoning Commission, pursuant to published and mailed notice, held a public hearing on the application and reviewed such application on July 26, 2022: all persons present were given an opportunity to be heard; and, 3. That written comments and analysis of City staff were considered; and, 4. That the Hopkins Planning & Zoning Commission reviewed this application during their July 26, 2022 meeting and recommended approval by the City Council, subject to conditions; and 5. That the Hopkins City Council reviewed this application during their August 1, 2022 meeting and agreed with the findings of the Planning & Zoning Commission and approved and approved Resolution 2022-050 approving the first reading of Ordinance 2022-1183 rezoning the property located at 1118 Mainstreet with PID 24-117-22-34-0249; and 6. That the Hopkins City Council conducted a second reading of Ordinance 2022-1183 during the September 6, 2022 meeting. WHEREAS, staff recommended approval of the above stated application based on the findings outlined in the staff report dated August 1, 2022 and the staff memo dated September 6, 2022. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Hopkins hereby approves the second reading of Ordinance 2022-1183 rezoning the property located at 1118 Mainstreet (PID 24-117-22-34-0249) from B-2, Central Business District to B-2, Central Business District with a Planned Unit Development (PUD), subject to the conditions listed below. 1. Approval by the City Council and execution by the Mayor and City Manager of a Planned Unit Development (PUD) Agreement in a form acceptable to the City Attorney. 2. Approval of the development by the Nine Mile Creek Watershed District and conformance with all related conditions. 3. Payment of all applicable development fees including, but not limited to SAC, park dedication and City Attorney fees. Adopted by the City Council of the City of Hopkins this 6th day of September, 2022. By:___________________________ Patrick Hanlon, Mayor ATTEST: _______________________________ Amy Domeier, City Clerk EXHIBIT A Legal Description of subject property Tract A: Lots 1 through 6 inclusive, Block 7, That part of the North Half of the adjoining vacated East-West alley in said Block 7 lying between the extension across it of the West line of said Lot 1 and the East line of Lot 26, in said Block 7, That part of the vacated East-West alley lying North of the center line of said alley and between the extension across it of the East line of Lot 6 and the East line of Lot 26, all in Block 7, “West Minneapolis”. According to the recorded plat thereof, and situate in Hennepin County, Minnesota. Being registered land as is evidenced by Certificate of Title No. 834358. Tract B: Lot Twenty-three (23) except the South 25 feet thereof, front and rear, and all of Lots Twenty-four (24), Twenty-five (25), and Twenty-six (26), Block Seven (7), West Minneapolis, according to the recorded plat thereof, and situate in Hennepin County, Minnesota, together with that part of the South half of the vacated East-West alley in said Block 7 lying between the extension across it of the West line of Lot 26 and the center line of the North-South alley in said Block 7 and together with that part of the West half of the vacated North-South Alley in said Block 7 lying between the extensions across it of the South line of Lot 23 except the South 25 feet thereof and the North line of said Lot 26. Abstract Property Tract C: Lots Seven (7), Eight (8), Nine (9) and Ten (10), Block Seven (7), West Minneapolis, except the South 25 feet of said Lot 10, according to the recorded plat thereof, and situate in Hennepin County, Minnesota, together with that part of the East half of the vacated North-South alley in said Block Seven (7) lying between the extensions across it of the South line of Lot 10 except the South 25 feet thereof and the North line of said Lot 7 and together with that part of the South half of the vacated East-West alley in said Block 7 lying between the extensions across if of the East line of said Lot 7 and the Center line of the North-South alley in said Block 7. Abstract Property. 1 CITY OF HOPKINS Hennepin County, Minnesota ORDINANCE NO. 2022-1183 AN ORDINANCE REZONING THE PROPERTY WITH PID 24-117-22-34-0249 FROM B-2, CENTRAL BUSINESS DISTRICT TO B-2, CENTRAL BUSINESS DISTRICT WITH A PLANNED UNIT DEVELOPMENT THE COUNCIL OF THE CITY OF HOPKINS DOES HEREBY ORDAIN AS FOLLOWS: 1. That the zoning classification of B-2, Central Business District, upon the following described premises is hereby repealed, and in lieu thereof, said premises is hereby zoned B-2, Central Business District with a Planned Unit Development (PUD). 2. The property to be rezoned is legally described in Exhibit A First Reading: August 1, 2022 Second Reading: September 6, 2022 Date of Publication: September 15, 2022 Date Ordinance Takes Effect: September 15, 2022 ________________________ ATTEST: Patrick Hanlon, Mayor __________________________ Amy Domeier, City Clerk 1 EXHIBIT A Legal Description of subject property Tract A: Lots 1 through 6 inclusive, Block 7, That part of the North Half of the adjoining vacated East-West alley in said Block 7 lying between the extension across it of the West line of said Lot 1 and the East line of Lot 26, in said Block 7, That part of the vacated East-West alley lying North of the center line of said alley and between the extension across it of the East line of Lot 6 and the East line of Lot 26, all in Block 7, “West Minneapolis”. According to the recorded plat thereof, and situate in Hennepin County, Minnesota. Being registered land as is evidenced by Certificate of Title No. 834358. Tract B: Lot Twenty-three (23) except the South 25 feet thereof, front and rear, and all of Lots Twenty-four (24), Twenty- five (25), and Twenty-six (26), Block Seven (7), West Minneapolis, according to the recorded plat thereof, and situate in Hennepin County, Minnesota, together with that part of the South half of the vacated East-West alley in said Block 7 lying between the extension across it of the West line of Lot 26 and the center line of the North-South alley in said Block 7 and together with that part of the West half of the vacated North-South Alley in said Block 7 lying between the extensions across it of the South line of Lot 23 except the South 25 feet thereof and the North line of said Lot 26. Abstract Property Tract C: Lots Seven (7), Eight (8), Nine (9) and Ten (10), Block Seven (7), West Minneapolis, except the South 25 feet of said Lot 10, according to the recorded plat thereof, and situate in Hennepin County, Minnesota, together with that part of the East half of the vacated North-South alley in said Block Seven (7) lying between the extensions across it of the South line of Lot 10 except the South 25 feet thereof and the North line of said Lot 7 and together with that part of the South half of the vacated East-West alley in said Block 7 lying between the extensions across if of the East line of said Lot 7 and the Center line of the North-South alley in said Block 7. Abstract Property. CITY OF HOPKINS Hennepin County, Minnesota RESOLUTION 2022-057 A RESOLUTION APPROVING THE 325 BLAKE ROAD PLANNED UNIT DEVELOPMENT (PUD) AGREEMENT WHEREAS, the applicant, Enclave Companies, initiated an application requesting to rezone the property addressed as 1118 Mainstreet (PID 24-117-22-34-0249) from B-2, Central Business District to B-2, Central Business District with a Planned Unit Development (PUD), and WHEREAS, this property is legally described in Exhibit A; and WHEREAS, the procedural history of the application is as follows: 1. That the above stated application was initiated by the applicant on June 24, 2022; and, 2. That the Hopkins Planning & Zoning Commission, pursuant to published and mailed notice, held a public hearing on the application and reviewed such application on July 26, 2022: all persons present were given an opportunity to be heard; and, 3. That written comments and analysis of City staff were considered; and, 4. That the Hopkins Planning & Zoning Commission reviewed this application during their July 26, 2022 meeting and recommended approval by the City Council, subject to conditions; and 5. That the Hopkins City Council reviewed this application during their August 1, 2022 meeting and agreed with the findings of the Planning & Zoning Commission and approved and approved Resolution 2022-050 approving the first reading of Ordinance 2022-1183 rezoning the property located at 1118 Mainstreet with PID 24-117-22-34-0249; and 6. That the Hopkins City Council conducted a second reading of Ordinance 2022-1183 during the September 6, 2022 meeting. WHEREAS, staff recommended approval of the Hopkins Apartments Planned Unit Development (PUD) Agreement based on the findings outlined in the staff report dated August 1, 2022 and the staff memo dated September 16, 2022. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Hopkins hereby approves the Hopkins Apartments Planned Unit Development (PUD) Agreement and authorizes the Mayor and City Manager to enter into this agreement, subject to any modification approved by the City Attorney. Adopted by the City Council of the City of Hopkins this 6th day of September, 2022. By:___________________________ Patrick Hanlon, Mayor ATTEST: _______________________________ Amy Domeier, City Clerk EXHIBIT A Legal Description of subject property Tract A: Lots 1 through 6 inclusive, Block 7, That part of the North Half of the adjoining vacated East-West alley in said Block 7 lying between the extension across it of the West line of said Lot 1 and the East line of Lot 26, in said Block 7, That part of the vacated East-West alley lying North of the center line of said alley and between the extension across it of the East line of Lot 6 and the East line of Lot 26, all in Block 7, “West Minneapolis”. According to the recorded plat thereof, and situate in Hennepin County, Minnesota. Being registered land as is evidenced by Certificate of Title No. 834358. Tract B: Lot Twenty-three (23) except the South 25 feet thereof, front and rear, and all of Lots Twenty-four (24), Twenty-five (25), and Twenty-six (26), Block Seven (7), West Minneapolis, according to the recorded plat thereof, and situate in Hennepin County, Minnesota, together with that part of the South half of the vacated East-West alley in said Block 7 lying between the extension across it of the West line of Lot 26 and the center line of the North-South alley in said Block 7 and together with that part of the West half of the vacated North-South Alley in said Block 7 lying between the extensions across it of the South line of Lot 23 except the South 25 feet thereof and the North line of said Lot 26. Abstract Property Tract C: Lots Seven (7), Eight (8), Nine (9) and Ten (10), Block Seven (7), West Minneapolis, except the South 25 feet of said Lot 10, according to the recorded plat thereof, and situate in Hennepin County, Minnesota, together with that part of the East half of the vacated North-South alley in said Block Seven (7) lying between the extensions across it of the South line of Lot 10 except the South 25 feet thereof and the North line of said Lot 7 and together with that part of the South half of the vacated East-West alley in said Block 7 lying between the extensions across if of the East line of said Lot 7 and the Center line of the North-South alley in said Block 7. Abstract Property. 1 HP145\88\815797.v6 HOPKINS APARTMENTS PLANNED UNIT DEVELOPMENT AGREEMENT THIS PLANNED UNIT DEVELOPMENT AGREEMENT (“Agreement”) is made this ___ day of _______________, 2022, by and between the CITY OF HOPKINS, a Minnesota municipal corporation, (the “City”), and Ovation Apartments, LLC, a Minnesota limited liability company (the “Developer”). Recitals A. The Developer owns approximately 1.88 acres of certain real estate located in the City of Hopkins, Hennepin County, Minnesota, legally described as (See Exhibit A) (the “Property”). B. The Developer has made application to the City for certain land use approvals to facilitate the Property’s development for a four-story, mixed-use structure with 150 residential units and approximately 5,382 square feet of commercial space, and said development is tentatively to be named Ovation Apartments (the “Development”). C. To accommodate the Development, the City conditionally approved (i) a rezoning of the Property to B-2 Central Business District/PUD, per Ordinance 2022-1183 (the “Rezoning Ordinance”) adopted by the City Council on August 16, 2022; (ii) a conditional use permit for the Property, per Resolution 2022-051 (the “CUP Resolution”) adopted by the City Council on August 1, 2022; and (iii) a planned unit development site plan, per Resolution 2022-052 (the “Site Plan Resolution”) also adopted by the City Council on August 1, 2022. D. The Rezoning Ordinance, the CUP Resolution, and the Site Plan Resolution shall be referred to collectively herein as the “City Approvals,” and said City Approvals are each incorporated into this Agreement as if fully set forth herein. E. As a condition of the City Approvals, the City required the Developer to enter into 2 HP145\88\815797.v6 a planned unit development agreement, and the parties hereto are willing to be bound by the terms and conditions provided herein to facilitate the aforementioned Development. Agreement In consideration of each party’s promises as set forth in this Agreement, it is mutually agreed as follows: ARTICLE ONE REPRESENTATIONS AND WARRANTIES 1.01. City Representations and Warranties. The City makes the following representations as the basis for the undertakings on its part contained herein: A. The City is a municipal corporation under the laws of Minnesota. B. The City has the right, power, and authority to execute, deliver, and perform its obligations under this Agreement. 1.02. Developer Representations and Warranties. The Developer makes the following representations as the basis for the undertakings on its part contained herein: A. The Developer is a limited liability company, duly organized and in good standing under the laws of Minnesota. B. The Developer has the right, power, and authority to execute, deliver, and perform its obligations under this Agreement. The Developer assures the City that the individuals who execute this Agreement on behalf of the Developer are duly authorized to sign on behalf of the Developer and to bind the Developer thereto. C. The Developer is not in default under any lease, contract, or agreement to which it is a party or by which it is bound which would affect its performance under this Agreement. The Developer is not a party to or bound by any mortgage, lien, lease, agreement, instrument, order, judgment, or decree which would prohibit the execution or performance of this Agreement by the Developer or prohibit any of the transactions provided for in this Agreement. D. The Developer has complied with and will continue to comply with all applicable federal, state and local statutes, laws, ordinances, and regulations including, without limitation, any permits, licenses, and applicable zoning, environmental, or other laws, ordinances, or regulations affecting the Property. The Developer is not aware of any pending or threatened claim of any such violation. Without limitation of the foregoing, the Developer expressly acknowledges and agrees that it has and shall at all times comply with each and every provision of the City’s subdivision, zoning, and other related municipal code regulations. E. There is no suit, action, arbitration, or legal, administrative, or other proceeding, or governmental investigation pending or threatened against or affecting the Property or against the 3 HP145\88\815797.v6 Developer that would affect the Property. The Developer is not in default with respect to any order, writ, injunction, or decree of any federal, state, local or foreign court, department, agency, or instrumentality affecting the Property. F. None of the representations and warranties made by the Developer or made in any exhibit hereto or memorandum or writing furnished or to be furnished by the Developer or on its behalf contains or will contain any untrue statement of material fact or omits any material fact, the omission of which would be materially misleading. 1.03 Incorporation of Recitals, City Approvals, and Exhibits. The Recitals set forth in the preamble to this Agreement, the City Approvals, and the Exhibits attached to this Agreement are incorporated into this Agreement as if fully set forth herein. ARTICLE TWO ADDITIONAL PROVISIONS 2.01. Private Improvements. The Developer shall construct and install, at the Developer's expense, the proposed four-story, mixed-use structure with 150 residential units and approximately 5,382 square feet of commercial space (the “Private Improvements”), according to the following terms and conditions: A. Plans. The Developer shall construct the Private Improvements in accordance with the City Approvals, including the approved Site Plan, and all associated construction plans and documentation (the “Plans”) on or before June 30, 2024. The Plans are those that are on file with the City, prepared by Momentum Design Group, dated July 21, 2022. No revisions to or deviations from the Plans that would materially alter the Private Improvements may occur unless first approved by the City in writing. B. Permits. The Developer shall secure all required permits necessary to construct the Private Improvements and provide documentation of such permits to the City, and nothing contained in this Agreement shall be deemed approval of or a substitute for any such permit. 2.02. Additional Requirements. The Developer shall satisfy, complete and abide by all requirements set forth in the City Approvals, the PUD Declaration (as hereinafter defined), and any other adopted City ordinances and resolutions affecting the Property, all of which are incorporated herein by reference as if fully set forth in this Agreement. In doing so, the Developer shall adequately address all items as may be directed by the City Attorney, the City Engineer or others with review and approval authority for the City with respect to the City Approvals, the PUD Declaration, and any other adopted City ordinances and resolutions affecting the Property. 2.03. Zoning/PUD. Pursuant to the Rezoning Ordinance, the Property was rezoned to B- 2/Planned Unit Development. In order to secure the benefits and advantages of the approved planned unit development, the Developer shall execute and record a Declaration of Covenants, Conditions and Restrictions against the Property in the form attached hereto as Exhibit B (the “PUD Declaration”). 4 HP145\88\815797.v6 2.04. Thirty Bales Improvements. It is contemplated that the existing structure on the Property, known as the “Thirty Bales” building, will be improved as part of the Developer’s site redevelopment. Said improvements to the Thirty Bales building shall not be performed or constructed until the Developer submits plans regarding such improvements that are approved in writing by City staff. 2.05. Intentionally Blank. 2.06. Permits. The Developer shall obtain any necessary permits from the Nine Mile Creek Watershed District, the Minnesota Pollution Control Agency, the Minnesota Department of Natural Resources, the Minnesota Department of Health, the Minnesota Department of Transportation, and any other agency having jurisdiction over the Property before proceeding with any construction related to the Development. 2.07. Intentionally Blank. 2.08. Stormwater Management Requirements. As part of the Private Improvements, the Developer (or future owners/developers of the Property) shall be responsible for the construction, operation, and maintenance of stormwater management facilities to achieve compliance with applicable stormwater treatment requirements. If the Developer (or future owners/developers of the Property) is required by the Nine Mile Creek Watershed District (“NMCWD”) to execute and record against the Property an instrument in favor of NMCWD for stormwater facilities constructed as part of the Private Improvements, then it shall do so in accordance with all NMCWD requirements. The purpose of such instrument is to ensure that the Developer, and future developers/owners of the Property, maintain all stormwater facilities serving the Property. The Developer acknowledges that; (i) the City will not accept ownership of any such stormwater facilities; and (ii) the City does not plan to maintain or pay for maintenance, repair or replacement of such stormwater facilities and that the Developer will have responsibility for such work. 2.09. Financial Guarantee. As part of the Plans, the Developer has agreed to install private landscaping/streetscaping on the Property (collectively, the “Secured Improvements”), which requires financial security to ensure that they are completed with the other Private Improvements. Prior to the issuance of any City-issued permits related to the Private Improvements, including, but not limited to, building permits, the Developer agrees to deposit with the City the amount of $_________________ (the “Escrow Deposit”), which represents 150 percent of the estimated cost of the Secured Improvements. The Escrow Deposit shall be deposited with the City prior to beginning any work on the Private Improvements. The City may draw upon the Escrow Deposit, in whole or part, in order to complete construction of any or all of the Secured Improvements upon the Developer’s uncured default and failure to complete such Secured Improvements in accordance with the terms of this Agreement, including the lapse of all notice and cure rights of the Developer. The City may also draw upon the Escrow Deposit to pay any fees or costs owed to the City under this Agreement and otherwise unpaid by the Developer upon the lapse of all notice and cure rights of the Developer. It is the intention of the parties that the City at all times have available to it an Escrow Deposit in an amount adequate to ensure completion of the Secured Improvements and cost reimbursement to the City by the Developer as required under this Agreement. 5 HP145\88\815797.v6 Upon the Developer’s failure to either complete the Secured Improvements, pay any fees or costs owed to the City under this Agreement, or both, the City may draw on the Escrow Deposit in order to satisfy such requirements but only after the Developer fails to cure its breach following thirty (30) days’ written notice from the City. The foregoing notwithstanding, if the breach requires more than thirty (30) days to cure, such breach shall not allow the City to draw on the Escrow Deposit, provided that the curing of the breach is promptly commenced upon receipt of written notice from the City, and with due diligence is thereafter continuously prosecuted to completion and is completed in a reasonable period of time, not to exceed ninety (90) days. In the event that the Escrow Deposit is found to be deficient in amount to pay or reimburse the City in total as required herein, the Developer agrees that upon being billed by the City, it will pay within thirty (30) days of the mailing of said billing, the said deficient amount. If there should be an overage in the amount of the utilized Escrow Deposit, the City will, upon making said determination, refund to the Developer any monies, without interest, which the City has in its possession which are in excess of the actual costs owed to the City hereunder. In the event the Developer files bankruptcy or in the event a bankruptcy proceeding is filed against Developer by others and is not dismissed within 90 days, or in the event a court appoints a receiver for the Developer, the City may draw on the Escrow Deposit in its full amount to secure its surety position. The City shall then release the remainder of said Escrow Deposit to the bankruptcy court or receiver in the same manner that it would be required to release the Escrow Deposit under this Agreement. When reasonably prudent, the Developer may request of the City that the Escrow Deposit be proportionately reduced for portions of completed obligations herein. All such reductions shall be in the sole discretion of the City. It is the intention of the parties that the City at all times have available to it an Escrow Deposit in an amount adequate to ensure completion of all elements of the Secured Improvements and the reimbursement of City costs required under this Agreement. To that end and notwithstanding anything herein to the contrary, all requests by the Developer for a reduction or release of the Escrow Deposit shall be evaluated by the City in light of that principle. The costs incurred by the City in processing any reduction request shall be billed to the Developer and paid to the City within thirty (30) days of billing. 2.10. Payment of City Costs. The Developer agrees to reimburse the City its actual costs regarding: (i) preparing and administering this Agreement and all other documents, permits, and applications related to the Development; (ii) processing the approvals relating to the Development; (iii) any other cost expressly required under or directly related to this Agreement. In addition to and without limitation of the foregoing, the costs to be reimbursed by the Developer to the City shall include, but not be limited to, attorneys’ fees, engineering fees, inspection fees, and the costs and fees of other technical and professional assistance (including but not limited to the cost of City staff time) incurred or expended by the City on activities arising out of this Agreement and other undertakings directly related thereto. The Developer shall, upon request by the City, pay such costs to the City within 30 days of such request. In the event the City does not recover any costs under the provisions of this section 2.10, as an additional remedy, the City may, at its option, assess the Property in the manner provided by 6 HP145\88\815797.v6 Minnesota Statutes, chapter 429, and the Developer hereby consents to the levy of such special assessments without notice or hearing and waives its rights to appeal such assessments pursuant to Minnesota Statutes, section 429.081, provided the amount levied, together with the funds deposited with the City under this section, does not exceed the expenses actually incurred by the City. Further, the City may, at its option, as an additional remedy, recover expenses actually incurred by the City, in the manner provided by Minnesota Statutes, sections 415.01, 366.011 and 366.012, and the Developer hereby consents to the levy of such assessments without notice or hearing and waives its rights to appeal such assessments pursuant to such Minnesota Statutes, provided the amount levied, together with the funds deposited with the City under this section 2.10, does not exceed the expenses actually incurred by the City pursuant to this Agreement. Finally, the Developer agrees all such unpaid amounts also constitute charges for governmental services that the City may, at its option, collect on any property the Developer may own in the state pursuant to Minnesota Statutes, section 514.67. This section 2.10 shall survive termination of this Agreement and shall be binding on the Developer regardless of the enforceability of any other provision of this Agreement. 2.11. Attorneys’ Fees. The Developer agrees to pay the City’s reasonable costs and expenses, including attorneys’ fees, in the event a suit or action is brought by the City against the Developer to enforce the terms of this Agreement. 2.12. Amendment. Any amendment to this Agreement must be in writing and signed by both parties. 2.13. Assignment. The Developer may not assign any of its obligations under this Agreement without the prior written consent of the City. Notwithstanding the foregoing, the Developer may, without the City’s consent transfer assign this Agreement to an affiliate of the Developer that is owned by or under common ownership with the Developer or any affiliate of Developer; provided that any such transferee must enter into an agreement pursuant to which it assumes and agrees to perform the obligations of the Developer under this Agreement. 2.14. Agreement to Run with Land. This Agreement shall be recorded among the land records of Hennepin County, Minnesota. The provisions of this Agreement shall run with the Property and be binding upon the Developer and its assigns or successors in interest. Notwithstanding the foregoing, no conveyance of the Property or any part thereof shall relieve the Developer of its liability for full performance of this Agreement unless the City expressly so releases the Developer in writing. Additionally, in the event that all obligations of the Developer contained in this Agreement are duly satisfied, the City shall, upon written request from the Developer or any of its assigns or successors in interest, execute a document (a) releasing the Property from the terms and conditions of this Agreement; and (b) stating the Developer is in good standing under this Agreement. The execution and recording of such instrument shall not affect or otherwise alter the PUD Declaration. Any such instrument may be executed by the city manager without city council approval. Prior to the recording of this Agreement or any documents required herein with Hennepin County, the Developer agrees to provide the City with a signed consent from any other entity with a legal interest in the Property, including but not limited to any entity with a mortgage interest. Further, the Developer shall provide the City with evidence, which sufficiency shall be determined by the City, in its sole discretion, that all documents required to be recorded pursuant to this Agreement are 7 HP145\88\815797.v6 recorded and all conditions related to the City Approvals have been met prior to the City processing or approving any building permits or other permits applicable to the development of the Property. The City Approvals are subject to the Developer’s compliance with this section. 2.15. Representatives Not Individually Liable. No official, agent, or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City on any obligation or term of this Agreement. No agent, officer or employee of the Developer shall be personally liable to the City, or any successor in interest, in the event of any default or breach by the Developer on any obligation or term of this Agreement. 2.16. Notices and Demands. Any notice, demand, or other communication under this Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally: (a) as to the Developer: Ovation Apartments, LLC 300 23rd Avenue East, Suite 300 West Fargo, ND 58078 Attn: Austin J. Morris with a copy to: Siegel Brill, P.A. 100 Washington Ave. S., Suite 1300 Minneapolis, MN 55401 Attn: Anthony J. Gleekel (b) as to the City: City of Hopkins 1010 1st Street South Hopkins, MN 55343 Attn: City Manager with a copy to: Scott J. Riggs, City Attorney Kennedy & Graven, Chartered 150 South 5th Street, Suite 700 Minneapolis, MN 55402 or at such other address with respect to either such party as that party may, from time to time, designate in writing and forward to the other as provided in this section 2.16. 2.17. Disclaimer of Relationships. The Developer acknowledges that nothing contained in this Agreement nor any act by the City or the Developer shall be deemed or construed by the Developer or by any third person to create any relationship of third-party beneficiary, principal and agent, limited or general partner, or joint venture between the City and the Developer. 2.18. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. 2.19. Choice of Law and Venue. This Agreement shall be governed by and construed in 8 HP145\88\815797.v6 accordance with the laws of the State of Minnesota. Any disputes, controversies, or claims arising out of this Agreement shall be heard in the state or federal courts of Minnesota, and all parties to this Agreement waive any objection to the jurisdiction of these courts, whether based on convenience or otherwise. 2.20. Indemnification. Notwithstanding anything to the contrary in this Agreement, the City, its officials, agents, and employees shall not be liable or responsible in any manner to the Developer, the Developer’s successors or assigns, the Developer’s contractors or subcontractors, material suppliers, laborers, or to any other person or persons for any claim, demand, damage, or cause of action of any kind or character arising out of or by reason of the execution of this Agreement or the performance of this Agreement except with respect to matters of gross negligence or willful misconduct of the City or its officials, agents, or employees. The Developer, and the Developer’s successors or assigns, agree to protect, defend and save the City, and its officials, agents, and employees, harmless from all such claims, demands, damages, and causes of action and the costs, disbursements, and expenses of defending the same, including but not limited to, attorneys’ fees, consulting engineering services, and other technical, administrative, or professional assistance except with respect to matters of gross negligence or willful misconduct of the City or its officials, agents, or employees. Nothing in this Agreement shall constitute a waiver or limitation of any immunity or limitation on liability to which the City is entitled under Minnesota Statutes, chapter 466 or otherwise. This section 2.20 shall survive termination of this Agreement with respect to matters first arising prior to such termination and shall be binding on the Developer regardless of the enforceability of any other provision of this Agreement. 2.21. Developer’s Default. In the event of an uncured default by the Developer as to any work or undertaking required by this Agreement, the City may, at its option, (i) refuse to issue building permits, certificates of occupancy, or other City approvals for the Property until such time as such default has been cured; or (ii) perform any work required under this Agreement, and the Developer shall promptly reimburse the City for any expense incurred by the City related thereto. An “uncured default” is any default the Developer has not cured, or undertaken to cure, within thirty (30) days from the date the City notifies Developer of such default. The foregoing notwithstanding, if a default requires more than thirty (30) days to cure, such default shall not constitute an uncured default, provided that the curing of the default is promptly commenced upon receipt of written notice from the City, and with due diligence is thereafter continuously prosecuted to completion and is completed in a reasonable period of time, not to exceed ninety (90) days. This Agreement is a license for the City to enter onto the Property and act in accordance with the terms of this Agreement, and it shall not be necessary for the City to seek an order from any court for permission to enter the Property for such purposes. If the City does any such work, the City may, in addition to its other remedies, levy special assessments against the Property to recover the costs thereof. For this purpose, the Developer, for itself and its successors and assigns, expressly waives any and all procedural and substantive objections to the special assessments, including, but not limited to, hearing requirements and any claim that the assessments exceed the benefit to the land so assessed. The Developer, for itself and its successors and assigns, also waives any appeal rights otherwise available pursuant to Minnesota Statutes, section 429.081. 2.22. Compliance with Existing Laws. The Developer warrants that all work performed pursuant 9 HP145\88\815797.v6 to this Agreement shall be in compliance with existing laws, ordinances, pertinent regulations, standards, and specifications of the City. 2.23. Building Permits. The City Approvals and this Agreement do not include approval of any building permits for any structures on the Property. The Developer must submit and the City must approve building plans prior to an application for a building permit for a structure on the Property. The Developer or the parties applying for the building permit shall be responsible for payment of the customary fees associated with the building permits and other deferred fees as specified in this Agreement. In addition to all other remedies, permits may be withheld if the Developer is in violation of any of the terms of this Agreement. 2.24. City’s Access. The Developer hereby grants the City, its agents, employees, officers and contractors a non-revocable, non-exclusive, license to enter the Property to perform any work and inspections deemed appropriate by the City related to any of the Developer’s obligations contained in this Agreement. Such license shall terminate upon the issuance of a certificate of occupancy for all improvements contemplated as part of the Development and the City’s final approval of the Secured Improvements. 2.25. Developer Financial Assistance Request. During the time it has taken to put the Development together, several factors have caused an increase in the project budget to the point the Developer has indicated that the Development is not financially feasible without City assistance. As a result of these circumstantial changes, the Developer submitted an application to the City for financial assistance to support the Development in the amount of $1,250,000. There are several factors cited that have contributed to the financial gap in the project including demolition costs, escalating lumber costs, design changes and other project changes. It has been determined that some financial assistance is necessary for the Development to move forward, particularly for assistance tied to the demolition costs necessary for the Development. The City, through the Housing and Redevelopment Authority of Hopkins (the “HRA”), has authorized the providing of a forgivable loan to the Developer in connection with the Development, including the following assistance: a one-time forgivable loan utilizing excess Tax Increment Financing (TIF) from TIF District 2-11 (as these funds are eligible expenditures for redevelopment) from the City in the maximum principal amount of $1,250,000 or 2.9% of the project costs, apportioned for project costs as follows: $1,250,000 for demolition and environmental remediation associated with the demolition, for exterior improvements to the existing retail and for outdoor public space. If, demolition and environmental remediation associated with the demolition costs, the exterior improvement costs and the cost of the outdoor space (not including surface parking lot construction) is less than $1,250,000, the forgivable loan would be reduced dollar for dollar. A separate forgivable loan agreement, including a note and mortgage (the “Loan Agreement”) will be provided that is conditioned on the Development receiving all land use approvals. The forgivable Loan Agreement would be forgiven after five (5) years, but would be required to be paid back if the Property was sold or transferred, unless allowed by the Loan agreement, within the initial 5-year period of the Development. The forgivable Loan Agreement constitutes the business subsidies proposed to be granted by the HRA to the Developer under Minnesota Statutes, Sections 116J.993 through 116J.995 (the 10 HP145\88\815797.v6 “Business Subsidy Act”), and Minnesota Statutes, Sections 469.174 through 469.179 (tax increment) for the Property and the Development in the City of Hopkins. As such, an agreement, (the “Business Subsidy Agreement”), between the Developer and the HRA, provides for certain benefits and business subsidies as noted above to the Developer in connection with Development and the Property. 2.26. Park Dedication. Although two principal structures are contemplated to be located on the Property following the improvements required herein, the parcel is not presently being split or subdivided by the Developer and, accordingly, park dedication fees are not triggered under present circumstances. However, should the parcel that makes up the Property be split or subdivided at any point in the future, whether by Developer or any of its successors or assigns, park dedication shall be owed to the City in the amount of the then-current per-unit fee multiplied by 150 residential units (the amount of residential units to be constructed as part of the Private Improvements), plus an additional amount based on 5,382 square feet of commercial space pursuant to the then-current formula for commercial park dedication. This paragraph shall survive the termination of this Agreement. 2.27. Miscellaneous Provisions. A. The Developer represents to the City that the development of the Property will comply with all city, county, state, and federal laws and regulations including, but not limited to: subdivision ordinances, zoning ordinances and environmental regulations. If the City determines that the development of the Property does not comply, the City may, at its option, refuse to allow construction or development work on the Property until the Developer does comply. Upon the City’s demand, the Developer shall cease work until there is compliance. B. Third parties shall have no recourse against the City under this Agreement. C. An ongoing default by the Developer under the terms of this Agreement shall be grounds for denial of building permits or certificates of occupancy until any such defaults are cured by the Developer. D. Wherever possible, each provision of this Agreement and each related document shall be interpreted so that it is valid under applicable law. If any provision of this Agreement or any related document is to any extent found invalid by a court or other governmental entity of competent jurisdiction, that provision shall be ineffective only to the extent of such invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or any other related document. E. No failure by any party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach of any other covenant, agreement, term, or condition, nor does it imply that such covenant, agreement, term, or condition may be waived again. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Agreement. To be binding, amendments or waivers shall be in writing and signed by the parties. The City’s failure to promptly take legal action to enforce this Agreement 11 HP145\88\815797.v6 shall not be a waiver or release. G. Each right, power, or remedy herein conferred upon the City is cumulative and in addition to every other right, power, or remedy, express or implied, now or hereafter arising, available to the City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein set forth or otherwise so exciting may be exercised from time to time as often and in such order as may be deemed expedient by the City and shall not be a waiver of the right to exercise at any time thereafter any other right, power, or remedy. H. This Agreement, together with the exhibits hereto, which are incorporated by reference, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to this Agreement, superseding all prior or contemporaneous proposals, communications, and understandings, whether oral or written, pertaining to the subject matter of this Agreement. I. No official, agent, or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City on any obligation or term of this Agreement. J. Data provided to the Developer or received from the Developer under this Agreement shall be administered in accordance with the Minnesota Government Data Practices Act, Minnesota Statutes, chapter 13. [The remainder of this page to remain intentionally blank]. 12 HP145\88\815797.v6 IN WITNESS OF THE ABOVE, the parties have caused this Agreement to be executed on the date and year written above. THE CITY: By: ____________________________________ Patrick Hanlon Mayor By: ____________________________________ Michael Mornson City Manager STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this ___ day of ________________, 2022, by Patrick Hanlon and Michael Mornson, the Mayor and City Manager, respectively, of the City of Hopkins, a Minnesota municipal corporation, on behalf of the City. ____________________________________ Notary Public 13 HP145\88\815797.v6 THE DEVELOPER: OVATION APARTMENTS, LLC By: _______________________________ Its: _______________________________ STATE OF _____________ ) ) SS. COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this __ day of ________________, 2022, by ______________, the _______________ of Ovation Apartments, LLC, a Minnesota limited liability company, by and on behalf of said company. __________________________________ Notary Public This document drafted by: KENNEDY & GRAVEN, CHARTERED 150 South 5th Street, Suite 700 Minneapolis, MN 55402 (612) 337-9300 A-1 HP145\88\815797.v6 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY The land to which this Agreement applies is legally described as follows: Tract A: Lots 1 through 6 inclusive, Block 7, That part of the North Half of the adjoining vacated East-West alley in said Block 7 lying between the extension across it of the West line of said Lot 1 and the East line of Lot 26, in said Block 7, That part of the vacated East-West alley lying North of the center line of said alley and between the extension across it of the East line of Lot 6 and the East line of Lot 26, all in Block 7, “West Minneapolis”. According to the recorded plat thereof, and situate in Hennepin County, Minnesota. Being registered land as is evidenced by Certificate of Title No. 834358. Tract B: Lot Twenty-three (23) except the South 25 feet thereof, front and rear, and all of Lots Twenty-four (24), Twenty-five (25), and Twenty-six (26), Block Seven (7), West Minneapolis, according to the recorded plat thereof, and situate in Hennepin County, Minnesota, together with that part of the South half of the vacated East-West alley in said Block 7 lying between the extension across it of the West line of Lot 26 and the center line of the North-South alley in said Block 7 and together with that part of the West half of the vacated North-South Alley in said Block 7 lying between the extensions across it of the South line of Lot 23 except the South 25 feet thereof and the North line of said Lot 26. Abstract Property Tract C: Lots Seven (7), Eight (8), Nine (9) and Ten (10), Block Seven (7), West Minneapolis, except the South 25 feet of said Lot 10, according to the recorded plat thereof, and situate in Hennepin County, Minnesota, together with that part of the East half of the vacated North-South alley in said Block Seven (7) lying between the extensions across it of the South line of Lot 10 except the South 25 feet thereof and the North line of said Lot 7 and together with that part of the South half of the vacated East-West alley in said Block 7 lying between the extensions across if of the East line of said Lot 7 and the Center line of the North-South alley in said Block 7. Abstract Property. B-1 HP145\88\815797.v6 EXHIBIT B FORM OF DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS HOPKINS APARTMENTS PLANNED UNIT DEVELOPMENT THIS DECLARATION made this ___ day of ______________, 2022, by Ovation Apartments, LLC, a Minnesota limited liability company (hereinafter referred to as the “Declarant”); WHEREAS, Declarant is the owner of the real property legally described on Attachment One hereof (hereinafter referred to as the “Subject Property”); and WHEREAS, the Subject Property is subject to certain zoning and land use restrictions imposed by the City of Hopkins, Minnesota ("City") in connection with the approval of an application for a mixed-use planned unit development on the Subject Property; and WHEREAS, the City has approved such development to be located on the Subject Property, including the required rezoning, conditional use permit, and site plan approval, on the basis of the determination by the City Council of the City that such development is acceptable only by reason of the details of the development proposed and the unique land use characteristics of the proposed use of the Subject Property; and that but for the details of the development proposed and the unique land use characteristics of such proposed use, the planned unit development would not have been approved; and WHEREAS, as a condition of approval of the planned unit development, the City has required the execution and filing of this Declaration of Covenants, Conditions and Restrictions (hereinafter the “Declaration”); and WHEREAS, to secure the benefits and advantages of approval of said development, the Declarant desires to subject the Subject Property to the terms hereof. B-2 HP145\88\815797.v6 NOW, THEREFORE, the Declarant declares that the Subject Property is, and shall be, held, transferred, sold, conveyed and occupied subject to the covenants, conditions, and restrictions, hereinafter set forth. 1. The use and development of the Subject Property shall conform to the following documents, plans, drawings, and requirements: a. The plans (“Plans”), prepared by Momentum Design Group, dated July 21, 2022, the sheets of which are specified on Attachment Two hereof unless the then-owner of the Subject Property first secures approval by the City Council of an amendment to Plans. Original documents are on file with the City and are made a part hereof. b. In exchange for the flexibility provided by the City as part of the approved planned unit development to be located on the Subject Property, the Developer has agreed to provide certain elements, including, but not necessarily limited to, pedestrian connectivity from 12th Avenue South to 11th Avenue South, pedestrian-level artwork installation (specifically, two sculptures and one mural), a full rooftop solar array on the mixed-use structure, and a building design that includes amenities beyond minimum code requirements. All such elements shall be constructed in accordance with City requirements and approved Plans. 2. The Subject Property may only be developed and used in accordance with all requirements of the City’s B-2, Central Business District, except for those deviations contained in the Plans or otherwise outlined herein, and all other requirements contained in Paragraph 1 of this Declaration, unless the then-owner of the Subject Property first secures approval by the City Council of an amendment to the planned unit development plan or a rezoning to a zoning classification that permits such other development and use. 3. In connection with the approval of development of the Subject Property, the following B-3 HP145\88\815797.v6 deviations from the City’s land use regulations, to the extent contained in the Plans, were approved: PUD Approved Deviations on Subject Property Category B-2 Requirement Approved Deviation for PUD B-2 CUP Standards No Residential Dwellings on First Floor Residential Dwellings Allowed on First Floor One Underground Parking Space Per Unit 130 Underground Stalls; 20 Stalls on Surface Lot; and Lease of 40 Designated Stalls in Municipal Garage Density Limited to 44 Units/Acre 79.7 Units/Acre Off-Street Parking Two Stalls/Unit 1.26 Stalls/Unit Building Height 45 Feet 47.9 Feet In all other respects the use and development of the Subject Property shall conform to the requirements of the Paragraphs 1 and 2 of this Declaration and the City Code of Ordinances. 4. The obligations and restrictions of this Declaration run with the land of the Subject Property and shall be enforceable against the Declarant, its successors and assigns, which successors and assigns shall be jointly and severally responsible for obligations under this Declaration, by the City of Hopkins acting through its City Council. This Declaration may be amended from time to time by a written amendment executed by the City and the owner or owners of the lot or lots to be affected by said amendment. *************************** B-4 HP145\88\815797.v6 IN WITNESS WHEREOF, the undersigned as duly authorized agents, officers or representatives of Declarant have hereunto set their hands and seals as of the day and year first above written. DECLARANT: OVATION APARTMENTS, LLC By: _______________________________ Its: _______________________________ STATE OF _____________ ) ) SS. COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this __ day of ________________, 2022, by ______________, the _______________ of Ovation Apartments, LLC, a Minnesota limited liability company, by and on behalf of said company. __________________________________ Notary Public This document drafted by: KENNEDY & GRAVEN, CHARTERED 150 South 5th Street, Suite 700 Minneapolis, MN 55402 (612) 337-9300 B-A-1 HP145\88\815797.v6 Attachment One The Subject Property is legally described as follows: Tract A: Lots 1 through 6 inclusive, Block 7, That part of the North Half of the adjoining vacated East-West alley in said Block 7 lying between the extension across it of the West line of said Lot 1 and the East line of Lot 26, in said Block 7, That part of the vacated East-West alley lying North of the center line of said alley and between the extension across it of the East line of Lot 6 and the East line of Lot 26, all in Block 7, “West Minneapolis”. According to the recorded plat thereof, and situate in Hennepin County, Minnesota. Being registered land as is evidenced by Certificate of Title No. 834358. Tract B: Lot Twenty-three (23) except the South 25 feet thereof, front and rear, and all of Lots Twenty-four (24), Twenty-five (25), and Twenty-six (26), Block Seven (7), West Minneapolis, according to the recorded plat thereof, and situate in Hennepin County, Minnesota, together with that part of the South half of the vacated East-West alley in said Block 7 lying between the extension across it of the West line of Lot 26 and the center line of the North-South alley in said Block 7 and together with that part of the West half of the vacated North-South Alley in said Block 7 lying between the extensions across it of the South line of Lot 23 except the South 25 feet thereof and the North line of said Lot 26. Abstract Property Tract C: Lots Seven (7), Eight (8), Nine (9) and Ten (10), Block Seven (7), West Minneapolis, except the South 25 feet of said Lot 10, according to the recorded plat thereof, and situate in Hennepin County, Minnesota, together with that part of the East half of the vacated North-South alley in said Block Seven (7) lying between the extensions across it of the South line of Lot 10 except the South 25 feet thereof and the North line of said Lot 7 and together with that part of the South half of the vacated East-West alley in said Block 7 lying between the extensions across if of the East line of said Lot 7 and the Center line of the North-South alley in said Block 7. Abstract Property. B-B-1 HP145\88\815797.v6 Attachment Two The following documents prepared by Momentum Design Group, dated July 21, collectively constitute the Plans: