CR 01-74 Approve Amendment to Conditional Use Permit Agreement - SuperValu Perishable Warehouse Expansion Project
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G\TY OF
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HOPKINS
May 31, 2001
Council Report 2001-074
Approve Amendment to Conditional Use Permit Agreement - SuperValu Perishable
Warehouse Expansion project
Proposed Action.
Staff recommends adoption of the following motion: Move that Council approve the
attached amendment to the CUP for the SuperValu Perishable Warehouse Expansion
proiect.
Overview.
City Council approved the CUP for this project on October 3,2000. The proposed
amendment provides for changes to the permanent easement provided to the city and
allows the city to retain a qualified construction inspector and be reimbursed by
SuperValu for all expenses. The current CUP requires SuperValu to hire the
engineering inspector -
Primary Issues to Consider.
Permanent Easement specifics
The final roadway plan does not require right of way purchase along the Westside
Business Center property in order to maintain the 60' right of way. Additional
permanent easement is provided for on the north side of 5th Street in order to maintain a
minimum 10' beyond the curb line in the area where the existing roadway is shifting
north to align with the existing 5th Street South east of 6th Avenue. Also, a strip of
permanent easement is being acquired along the north side of 6th Street near 11 th
Avenue to provide a 10' boulevard area behind the curb.
Supportina information.
Steven J. Stadler, Pun ic Works Director
Financial Impact: $~ Budgeted: Y/N n/a Source:
Related Documents (CIP, ERP, etc.):
Notes:
Miller, Steiner & Curtiss, P.A.
AMENDMENT TO CONDITIONAL USE PERMIT AGREEMENT
THIS AMENDMENT TO CONDITIONAL USE PERMIT AGREEMENT (this "Amendment") is made as
of , 200 I, by SUPER V ALU INC., a Delaware corporation ("Developer") in favor
of and for the benefit of the City of Hopkins, Minnesota, a municipal corporation under the laws of Minnesota
("City").
RECIT ALS
A. Developer executed and delivered a Conditional Use Permit Agreement dated October 25, 2000
(the "CUP Agreement") in favor of and for the benefit of the City. The CUP Agreement was recorded November
17,2000, as Hennepin County Registrar of Titles Document No. 3333738.
B. Developer and the City have agreed that the CUP Agreement shall be amended as stated in this
Amendment, and are executing this Amendment for that purpose.
NOW, THEREFORE, in consideration of the above Recitals and other good and valuable consideration,
Developer and the City agree that the CUP Agreement is amended as follows:
1. Recital Paragraphs A. and B. are incorporated in and made a part of this A1l1endment. All defined
words and phrases in the CUP Agreement, when used in this Amendment, shall have the same meanings stated in
the CUP Agreement.
2. The second grammatical paragraph of Para.graph 4 oJ'the CUP t\grC9ment is deleted an9 replaced
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site to perform inspections at all times while construction activities on the Public Improvements
are being performed. The Independent Inspector shall cooperate with and respond to requests and
questions from the Citv's Engineer and Citx-Inspecto.rs to confirm that construction of the Public
I.m.Q..CQ'y"e1!.lents...i~ being completed in accordauce with the Plans an<i....9lLapplicable ordinances.
regulations and standards. As provided in Paragraph 7 of this Agreement Developer or the
Independent Inspector shall notify the City Engineer when the Public Improvements. or any
portion thereof, are completed and ready for a final inspection.
AU references in the CUP Agreement to "Developer's Inspector" shall be deemed to mean and refer to the
Independent Inspector. as defined in this paragraph. Developer shaH reimburse the City for all tees and costs of the
Independent Inspector, as provided in Paragraph 9 of the ClJP Agreement.
hopcivil\amendcup3.sup
3.
subparagraph:
Subparagraph 6, F., ii., of the CUP Agreement is deleted and replaced with the following new
ii. Developer shall complete the reconstruction of Fifth Street South and Sixth Street South,
including roadway width modifications, sidewalks and pedestrianlbike trail construction, in
accordance with and as shown on Sheet C-l, titled "Fifth/Sixth Street Realignment," prepared by
Planmark, dated March 12, 2001 ("Street Reconstruction"). Such plans for the Street
Reconstruction shall be considered preliminary plans, which are subject to modification as
provided in Paragraph 3 of the CUP Agreement. Developer shall also prepare and submit a
revised Landscaping Plan to the City showing all landscaping improvements to be completed in
the area of the Street Reconstruction. Such revised Landscaping Plan shall be subject to approval
by the City. Developer agrees that it shall complete all of the Street Reconstruction as soon as
reasonably practicable, and in any event no later than December 31, 2001. Developer agrees that
it shall grant to the City, a pennancnt casement for public road right-of-way over the Real
Property, adjacent to the northerly right-of-way line of Fifth Street South in the location and over
the proposed easement area shown on Exhibit A attached hereto and incorporated herein.
Developer shall cause Developer's surveyors to prepare a legal description and surveyor's drawing
of the right-of-way easement, and shall deliver copies of such legal description and surveyor's
drawing to the City together with current evidence of title covering the Real Property. Developer
shall thereafter grant the right-of-way easement to the City, at Developer's sole cost, free and clear
of all liens and encumbrances.
4. The CUP Agreement is amended to provide that Developer shall also grant to the City a
permanent easement for road right of way. and trail purposes in the location and over the proposed easement area
shown in Exhibit B attached hereto and incorporated herein. Developer shall cause Developer's surveyors to
prepare a legal description and surveyor's drawing of the right-of-way easement, and shall deliver copies of such
legal description and surveyor's drawing to the City together with current evidence of title covering the land subject
to the right-of-way easement. Developer shall thereafter grant the right-of-way easement to the City, at Developer's
sole cost, free and clear of all liens and encumbrances. The document granting the easement will provide that the
City will not remove trees from the easement area except in connection with construction of streets, trails or related
improvements.
5. The CUP. Agreement shall remain in full force and effect in all of its terms and conditions, as
modified and amended by this Amendment.
City of Hopkins
SUPERV ALU, INC.
By
By
Its
Its
By
Its
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hopcivi 1\amendcup3. sup
STATE OF
)
)SS
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COUNTY OF
The foregoing instrument was acknowledged before me this _ day of
2001, by , the , of SUPERV ALU, INC., a
corporation under the laws of Delaware, on behalf of the corporation.
Notary Public
STATE OF MINNESOTA)
)SS
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _ day of
2001, by and , the
and , respectively, of The
City of Hopkins, a municipal corporation under the laws of the State of Minnesota, on behalf of the municipal
corporation.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Miller, Steiner & Curtiss, P .A.
400 Wells Fargo Bank Building
1011 First Street South
Hopkins, Minnesota 55343
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"provements. Review and approval ofPI~s and specifications for the Public Improvements shall
for the Public Improvements must allow sufficient time for public meetingCs).
also include at least one"Cl) public information meeting with neighborhood residents and property
owners and final approval by the Hopkins City Council," and the design and construction schedule
Developer shall" retain a qualified inspector or engineer experienced in inspection and
supervision of road construction ("Developer's Inspector") to perform site inspections of the Public
Improvements during the course of construction. Developer's Inspector shall be present, on site to
perform inspections at all times while construction activities on the Public Improvements are being
performed. Developer shall require Developer's Inspector to cooperate with and respond to requests
and questions from the City's Engineer and City Inspectors to confirm that construction of the Public
Improvements is being completed in accordance with the Plans and all applicable ordinances,
, "
.ulations and standards. As provided in Paragraph 7 of this Agreement, Developer.or Developer's
Inspector shall notify the City Engineer when the Public Improvements, or any portion thereof, are
completed and ready for a fmal inspection.
In connection with the construction of the Public Improvements, Developer shall restore all
City streets, sidewalks, public and pri~ate utilities and other public facilities and property disturbed
or damaged as a result of Developer's construction activities to substantially the same condition as
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existed prior to commencement of construction except to the extent the Plans call for the
abandonment, modification or removal of such streets, sidewalks, public and private utilities and
other public facilities and property .
Within sixty (60) days after the completion of the Public Improvements, Developer shall
supply the City with the following: C a) a complete set of reproducible mylar as-built plans, (b) two
.
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within thirty (30) days of the date on which the City Council appro es the
fmal design for reconstruction oithe Intersection, the City agrees at it shall
proceed with acquisition of such public right-of-way or eas~m ts and shall,
if necessary, acquire the same by means of eminent do 'n, subject to all
legal and statutory requirements applicable thereto. eveloper agrees to
re'imburse the City for and hold the City harmless om all costs, awards and
, expenses, of whatever kind or nature, incurred y the City in acquiring right-
of-way or, easements for the Intersection, . cluding, but not limited to, the
actual acquisition costs together with a appraisers, attorneys and consultant
fees incurred to complete such ac isition. In the event it is necessary to '
acquire additional right of w or easements for reconstruction of the
Intersection under this Sub agraph d), the date by which Developer must
complete reconstructio of the Intersection shall be postponed as necessary
to aIlovl for delays I sultin.g from such acquisition.
e) If, subsequent t he reconstruction of the Intersection, Developer acquires
the Third P y Property, Developer agrees that it shall redesign and
tthe Intersection according to Option C,at Developer's sole cost,
and a ees that the provisions of Subparagraph c) 'above, shall be applicable
uch redesign and reconstruction, including dedication of the necessary
Developer shall also complete the reconstruction, of Fifth Street South and Sixth
Street' South, including roadway. width modifications, sidewalks and
c:hopcivil\CondUse.SuperValu
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pedestrian/bicycle trail construction, as shown at Figure 16 of the Traffic. Study
("Street Reconstruction"). The Street Reconstruction shall be accomplished as
follows:
a) Simultaneously with or as soon as reasonably practicable after final approval
of the design and plans for reconstruction of the Intersection as provided in
Paragraph 6.F, i), above, Developer shall submit a preliminary design and
plans for the Street Reconstruction, which shall be subject to approval by the
City. The. City. shall notify Developer of any. required changes in the final
design and plans for the Street Reconstruction, and Developer shall cause the
final plans for the Street Reconstruction to be revised to incorporate such
revisions. The Developer and the City shall cooperate with one another in
approving and completing final designs for the Street Reconstruction, and
Developer agrees to submit final plans for the Street Reconstruction within
sixty (60) days of the date on which the final design for the Intersection has
been determined in accordance with the proyisiolls of Paragraph 6.F .i),
above. Developer agrees that the Plat shall include dedication of any
additional right of way needed for the Street Reconstruction.
b) The City and Developer anticipate that the . Street Reconstruction and/or
construction of fencing and sound barriers as described in. Paragraph 6.1,
below, shall require the use of between four and five feet of public road right
of way along the northerly and westerly boundaries of Fifth Street South and
Sixth. Street South to accommodate construction of fencing, sound barriers
and landscaping improvements adjacent thereto so that the existing road right
c:hopcivi1\CondUse.SuperValu
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of way and/or boulevard width will be maintained. Therefore, the City agrees
that it shall, at the City's option, either: ..
aa) vacate between four and five feet of public road right of way along
the northerly and westerly boundaries of such right of way, as
necessary to accommodate the Street Reconstruction and/or
construction of fencing, sound barriers and adjacent landscaping,
subject to compliance with all legal and. statutory requirements
applicable thereto;. or
bb) Enter into. a License and U seAgreement with Developer, containing
terms and conditions reasonably acceptable to the City, which will
grant Developer the right and license to use between four and five
feet of public road right of way, as necessary to accommodate the
Street Reconstruction and/or construction of fencing, sound barriers
and adjacent landscaping, such License and Use Agreement to remain
in effect for the benefit of Developer for so. long as the fencing, sound
barriers and adjacent landscaping are maintained as part of the
Project.
In order to maintain public road right-of-way width, the City shall be entitled
to require that new public road right of way be acquired on the southerly and
easterly boundaries of the right of way of Fifth Street South and Sixth Street
South, in the manner described in Subparagraph c), below, to replace the road
right-of-way area that is vacated or subjected to such License and Use
Agreement..
c:hopcivil\CondUse.SuperValu
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.
c) In the event the Street Reconstruction or construction of fencing," sound
barriers and landscaping as described in Subparagraphs a) and b), above,
requires acquisition of right of way or easements from third parties (such
Additional Right of Way easements being herein referred to as "Additional
Right of Way"), the Additional Right of Way shall be acquired as follows:
Developer shall exercise reasonable efforts and proceed with all due
diligence to acquire the Additional Right of Way, at Developer's sole
expense. In the event Developer is unable to acquire or enter into a binding
agreement to acquire the Additional Right of Way within thirty (30) days of
the date on which Developer has been notified of the. City's approval of the
final design and plans for the Street Reconstruction, the City agrees that it
shall proceed with acquisition of the Additional Right of Way and shall, if
necessary, acquire the same by means of eminent domain, subject to a1llegal
and statutory requirements applicable thereto. Developer agrees to reimburse
the City for and hold the City harmless from all costs, a\vards and expenses,
of whatever kind or nature, incurred by the City in acquiring the Additional
Right of Way, including, but not limited to, the actual acquisition costs,
relocation assistance payments and all appraisers, attorneys and consultant
fees incurred to complete such acquisition. The' Additional Right of Way,"
shall be ~ansferred to or retained by the City, without cost to the City. In the
event it is necessary to acquire the Additional Right of Way for the Street
Reconstruction, the date by which Developer must complete such
reconstruction shall be postponed as necessary. to allow for delays resulting
c:hopcivil\CondUse.SuperValu
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from such acquisitiop, provided that, if the Additional Right of Way is
needed only for sidewalk or trail construction, Developer shall proceed with
all of the other Street Reconstruction work, . and the trail and sidewalk
reconstruction shall be postponed pending acquisition of the Additional Right
of Way.
d) Developer agrees that it shall complete all of the Street Reconstruction as
soon as reasonably practicable, and in any event, no later than December 31,
2001.
Jii. nc."v doper 8gF8@i ih:it it 88tHI eSftstmet aU 3idc
the Traffic Study and depicted at Figure 14 of the Traffic Study
construction of a trail north of Third Street connecting with the re '. nal trail system
(Option Bas depictedin Figure 14). As part of such sidew
Developer shall construct the asphalt trail along the ast side of 11 th Avenue South
to connect with the existing asphalt trail no
In the event t..lJ.e side\valk and trail con 'ction referred. in this Subparagraph iii.,
requires the acquisitions of easem ts from third parties (such easements from third
parties being herein referre 0 as "Trail Easements:'), the Trail Easements shall be
acquired as follows: veloper shall exercise reasonable efforts and proceed with
all due diligence acquire the Trail Easements, at Developer's sole expense. In the
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event Devel er is unable to acquire the Trail Easements within thirty (30) days of
the date n which the City notifies Developer that it has approved the Plan(s) for the
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side alk and trail construction, the City agrees that it shall proceed with acquisition
sf th~ 'fi ail Easements and shall, It necessary,. acqUlre me: ~i:U.u~ b:) me ani of emiB.@Rt
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