CR 01-103 Approve Second Amendment to SuperValu Perishable Warehouse
C\TY OF
m
August 6, 2001
HOPKINS
Council Report 2001-103
Approve Second Amendment to SuperValu Perishable Warehouse project CUP
Ag reement
Proposed Action.
Staff recommends adoption of the following motion: Move that Council approve
a 2nd amendment to SuperValu Perishable' Warehouse CUP Aareement which
defers construction of a trail alona 3rd Street South until no later than Julv 1.
2002.
Overview.
The original CUP agreement required SuperValu to attempt to acquire property
along the north side of 3rd Street and construct a new trail section by July 1,
2001 or a soon as reasonably practicable after property acquisition. SuperValu
notified the city, within the time constraints contained in the CUP Agreement, that
it was not successful in negotiating purchase of the required General Resources
Corp. (GRC) property and that the city should consider eminent domain taking.
SuperValu expressed interest in the GRC property and GRC was open to
discuss a sale. The city agreed to wait on the results of property purchase
negotiations between SuperValu and GRC. This amendment sets an October 1,
2001 deadline for property purchase negotiations and requires SuperValu to .
construct the new trail segment 'by July 1, 2002.
Primary Issues to Consider.
. Impact in delaying trail construction
The impact is not great as there is an existing asphalt pedestrian sidewalk along
the north side of 3rd Street. This improvement widens the sidewalk to 10' and
removes the current obstructions (power poles, hydrants).
Suooortina Information.
· Original CUP Agreement excerpts
. Proposed 2nd Amendment
. Construction rawings of 3rd Street trail segment
Steven J. Stad ler
Public Works Director
o I/' ')"'-1 Gu P Jc\sC' wok
from such acquisitio;n, 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
.ofWay.
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.
iii. Developer agrees that it shall construct all sidewalks and trails as recommended in
the Traffic Study and depicted at Figure 14 of the Traffic Study, including
construction of a trail north of Third Street connecting with the regional trail system
(Option B as depicted in Figure 14). As part of such sidewalk and trail construction,
Developer shall construct the asphalt trail along the east side of 11 th A venue South
to connect with the existing asphalt trail north of the Project.
In the event the side\valk a.."'1d trail constru.ction referred in this Subparagraph iii.,
requires the acquisitions of easements from third parties (such easements from third
parties being herein referred to as "Trail Easements"), the Trail Easements shall be
acquired as follows: Developer shall exercise reasonable efforts and proceed with
all due diligence to acquire the Trail Easements, at Developer's sole expense. ;In the
event Developer is unable to acquire the Trail Easements within thirty (30) days of
the date on which the City notifies Developer that it has approved the Plan( s) for the
sidewalk and trail construction, the City agrees that it shall proceed with acquisition
of the Trail Easements and shall, if necessary, acquire the same by means of eminent
c:hopcivi1\CondUse.SuperValu
18
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, domain, subject to all legal ~d statutory requirements applicable thereto. Developer
agrees to reimburse the City for and hold the City harmless from all costs, awards and
expenses, of whatever kind or nature, incurred by the City in acquiring the Trail
Easements, including, but not limited to, the actual acquisition costs together with all
apprais;rs, .attorneys and consultant fees incurred to complete such acq~isition. The
Trail Easements shall be transferred to or retained by the City, without cost to the
Citr. In the event it is necessary to acquire the Trail Easements for the sidewalk and
trail construction, the date by which Developer must complete such reconstruction
shall be postponed as necessary to allow for delays resulting from such acquisition.
Provided,that Developer shall proceed with all sidewalk and trail construction that
does 'not require acquisition of Trail Easements.
iv. Attached to this Agreement as Exhibit C is a Memorandum, dated September 25,
2000, prepared by David Bade of Planmark, describing the proposed plan by
Developer for the reduction and eventual elimination of truck traffic at the existing
drivevlay access to 11 th Avenue South, wrJch is located north of Sixth Street South,
for the SuperValuPerishable Warehouse Facility. As promptly as possible after the
date of this Agreement, Developer shall prepare and submit a preliminary design and
plans incorporating the measures described in the Memorandum attached hereto as
Exhibit C and otherwise depicting the manner in which truck traffic at the existing
driveway access to 11th Avenue South shall be reduced and eliminated. Such
'preliminary plans shall be subject to approval' by the City, the City shall notify
Developer of any required' changes in such preliminary plans, and Developer shall
cause the fmal plans for reduction and elimination of truck traffic to be revised to
c:hopcivil\CondUse.SuperValu
19
~~ Guf ~~~
All of the sidewalk and trail construction described in Subparagraph iii ofParagtaph
6.F. of this Agreement, other than the sidewalk and trail construction work to be
completed as part of the Street Reconstruction work or construction of the
Intersection, shall be completed by July 1, 2001. However, any sidewalk and trail
construction requiring acquisition of easements or right of ways from third parties
shall be completed as reasonably practicable after such acquisition.
C. The .Public Improvements described in Subparagraphs vi and vii of Paragraph 6.F.
of this Agreement shall be completed prior to the effective date of the vacation of
Sixth Avenue South.
D. For all Public Improvements other than those referenced in Subparagraphs A., B. and
C., above, Developer shall commence construction of such Public Improvements as
soon as reasonably practicable after the date of this Agreement or the date of final
approval by the City Council.ofthe Planes) for the Public Improvement in question,
whichever is later, and substantially complete construction of all of the Public
Improvements no later than December 31, 2001.
Developer acknowledges it has been.advised that Subdivision 7 of Section 525.13 of the Hopkins
.City Code of Ordinances requires that Developer's use of the Project be in effect within one (1) year
after the date of issuance of the Conditional Use Permit, subject to extension of such one (1) year
period, in accordance with said Subdivision 7.
13. Compliance With Conditional Use Permit Requirements. Developer agrees that
it shall complete the Public Improvements in compliance with this Agreement, the Conditional Use
. Permit and the provisions of the City's Code of Ordinances, including, but not limited to .Hopkins
City Ordinance Section 525.13. . The terms, conditions and restrictions established by this Agreement
c:hopcivil\CondUse.SuperVaIu
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Notes: Under option A, a sidewalk would
be provided on the north side of 3rd Street
west of 2nd Avenue and on the east side
of 5th Avenue. Under Option B, this
sidewalk.would be replaced with a trail.
N
t
APPROXIMATE SCALE
~ I
o 600'
TRAIL
SIDEWALK
CITY OF HOPKINS
TRAFFIC STUDY FOR
SUPERVALU
PERISHABLES
WAREHOUSE
EXPANSION
PROPOSED SIDEWALK
AND TRAIL SYSTEM
FIGURE 14
\Xi BENSHOOF & ASSOCIATES,INC.
V TRANSPORTATION ENGINEERS AND PLANNERS
Miller, Steiner & Curtiss, P.A.
SECOND AMENDMENT TO CONDITIONAL USE PERMIT AGREEMENT
THIS SECOND AMENDMENT TO CONDITIONAL USE PERMIT AGREEMENT (this "Second
Amendment") is made as of , 2001, by SUPERV 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 in
favor of and for the benefit of the City. Said Conditional Use Permit Agreement was recorded November 17, 2000,
as Hennepin County Registrar of Titles Document No. 3333738, and was amended by an Amendment to
Conditional Use Permit Agreement, dated June 29, 2001. Said Conditional Use Permit Agreement and Amendment
to Conditional Use Permit Agreement are herein collectively referred to as the "CUP Agreement".
B. Developer and the City have agreed that the CUP Agreement shall be amended as stated in this
Second Amendment, and are executing this Second 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 Second Amendment. All
defined words and phrases in the CUP Agreement, when used in this Second Amendment, shall have the same
meanings stated in the CUP Agreement.
2.
subparagraph:
Subparagraph 6.F.(iii) of the CUP Agreement is deleted and replaced with the following new
iii.
Developer agrees that it shall construct all sidewalks and trails as recommended in the Traffic
Study and depicted at Figure 14 of the Traffic Study, including construction of a trail north of
Third Street South connecting with the regional trail system (Option B as depicted in Figure 14).
As part of such sidewalk and trail construction, Developer shall construct the asphalt trail along
the east side of 11 th A venue South to connect with the existing asphalt trail north of the Proj ect.
Developer acknowledges and agrees that construction of the trail north of Third Street South
connecting with the Regional Trail System shall require the acquisition of a public trail easement
(the "Trail Easement") over the south 6.5 feet of the adjacent land owned by General Resource
Corp. (the "GRC Property"), as depicted in the Certificate of Survey prepared by Westwood
Professional Services, Inc., dated March 30, 2001. Developer shall exercise reasonable efforts
and proceed with all due diligence to acquire the Trail Easement for the City, at Developer's sole
expense, on or before October 1, 2001, and shall notify the City by that date that Developer has
acquired the Trail Easement or has been unable to do so. In the event Developer is unable to
hopcivil\2damendcup.super
acquire the Trail Easement for the City by October 1, 2001, the City agrees that it shall proceed
with acquisition of the Trail Easement and shall, if necessary, acquire the same by means of
eminent domain, subject to all legal and statutory requirements applicable thereto. Developer
agrees to reimburse the City for and hold the City harmless from all costs, awards, damages and
expenses, of whatever kind or nature, incurred by the City in acquiring the Trail Easement,
including, but not limited to, the actual acquisition costs together with all appraisers, attorneys and
consultant fees incurred to complete such acquisition. The Trail Easement shall be transferred to
or retained by the City, without cost to the City.
In the event Developer acquires the GRC Property before the Trail Easement has been acquired by
the City, Developer agrees that it shall transfer the Trail Easement to the City, at no cost to the
. City, and the City agrees that it shall discontinue and dismiss any eminent domain proceeding that
has been commenced for the purpose of acquiring the Trail Easement. In the event Developer
enters into an agreement to acquire the GRC Property, Developer shall notify the City it has
entered into such Agreement, and the City shall not initiate or shall discontinue eminent domain
proceedings to acquire the Trail Easement pending acquisition of the GRC Property by Developer.
If Developer enters into a Purchase Agreement to acquire the GRC Property but is unable to
complete the acquisition of the GRC Property, the provisions of the immediately proceeding
paragraph shall apply, and the City shall proceed with acquisition of the Trail Easement by means
of eminent domain. In any event, the Developer shall be obligated to reimburse the City for and
hold the City harmless from all costs, awards, damages and expenses, of whatever kind or nature,
incurred by or imposed upon the City in acquiring or attempting to acquire the Trail Easement,
including, but not limited to, all appraiser's, attorney's and consultant's fees incurred by the City.
Notwithstanding any provision of the CUP Agreement apparently to the contrary, Developer
agrees that it shall complete construction of the trail improvements within the Trail Easement no
later than July 1, 2002, provided the date for completion of construction of such trail shall be
postponed as necessary to allow for delays in acquiring the Trail Easement by means of eminent
domain if the City is unable to complete such acquisition before April 1, 2001. The terms,
conditions, procedure and completion dates for all sidewalk and trail construction required by the
CUP Agreement other than the acquisition and construction of the trail within the Trail Easement
shall remain as provided in the CUP Agreement.
3. The CUP Agreement shall remain in full force and effect in all of its terms and conditions, as
modified and amended by this Second Amendment, which is incorporated in and made a part of the CUP
Agreement.
City of Hopkins
SUPERV ALU, INC.
By
By
Its
Its
By
Its
2
hopcivil\2damendcup,super
STATE OF
)
COUNTY OF
)SS
)
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
3
hopcivil\2damendcup. super
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
4
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