CR 01-035 Conditional Use Permit Agreement- Semper Development
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CITY OF
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March 15,2001
HOPKINS
Council Report 2001-35
CONDITIONAL USE PERMIT AGREEMENT - SEMPER DEVELOPMENT
ProDosed Action.
Staff recommends the following motion: Move to approve the conditional use permit
agreement to construct a Walgreens.
Overview.
As part of the conditional use permit approval for the construction of the Walgreens, Semper
Development is required to sign a conditional use permit agreement. The conditional use
permit agreement is a document that spells out the specifics of the action and timetable that
will need to be complied with to implement the various conditions of the conditional use
permit.
Jerry Steiner of the City Attorney's office prepared the conditional use permit agreement.
Also on tonight's agenda is the approval of the final plat. The approval of the conditional use
permit agreement and the final plat are the final actions that are necessary for Semper
Development to proceed with this project. National Lodging is also required to sign a
conditional use permit agreement.
Jerry Steiner will be present at the meeting to respond to specific questions.
Primarv Issues to Consider.
· What are the specifics of the conditional use permit agreement?
· Are there changes with the development?
SUDDortine Documents.
. Agreement
· Memo from Jeremy Steiner
Financial Impact: $ Nt A Budgeted:
Related Documents (CIP, ERP, etc.):
Notes:
Y/N
Source:
CR2001-35
Page 2
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Prima" Issues to Consider.
. What are the specifics of the conditional use permit agreement?
The following are the main points addressed in the agreement:
. Description of the public improvements Semper will complete
· The construction standards and procedures for the public improvements
. Reciprocal access easements
. County Road 73 access
· Submission of a storm water management plan
. Parking easements
. Road and traffic improvements
· Site demolition and site grading
· Acceptance and warranty of public improvements by the City
· Reimbursement of costs to the city from this development
. Timetable for the performance of the public improvements
. Compliance with conditional use permit requirements
. Are there changes with the development?
. There is a small change with the access from County Road 73 and a change in the plat. Steve
Stadler has reviewed the access change and found it acceptable. The applicant will be
dedicating an additional 17 feet of right-of-way on County Road 73.
The county, when reviewing the plat, recommended closing the access from County Road 73.
The county has allowed this access, but if MN/DOT withholds any funding for the
intersection improvements, the county will not finance any portion of the withheld amount.
The staff has estimated this amount at approximately $25,000. The agreement with Semper
provides that Semper will pay up to $25,000 to the City when the intersection is improved.
The agreement allows for the fee to be assessed.
Alternatives.
1. Recommend approval of the conditional use permit agreement. By approving the
conditional use permit agreement, Semper Development will be able to construct the
Walgreens as proposed.
2. Recommend denial of the conditional use permit agreement. By denying the conditional
use permit agreement, Semper Development will not be able to construct the Walgreens
as proposed. If the City Council considers this alternative, findings will have to be
identified that support this alternative.
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3. Continue for further information. If the City Council indicates that further information is
needed, the item should be continued.
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Pr~.~~.}1.2I.Ql
Miller, Steiner & Curtiss, P.A.
CONDITIONAL USE PERMIT AGREEMENT
This Conditional Use Permit Agreement (this" Agreement") is made and executed this
day of , 2001, by '.1..' H Investments LLC a Delawaf'e Hop 7. LLC. a Minnesota
limited liability company ("Developer"), in favor of and for the benefit of the City of Hopkins,
. Minnesota ("City").
RECITALS
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A. Developer is the fee owner of real property located in the City of Hopkins, Hennepin
County, State of Minnesota, legally described in Exhibit A attached hereto and incorporate herein by
reference. The real property described in Exhibit A hereto is hereinafter referred to as the "Real
Property" .
B. Developer applied to the City for a Conditional Use Permit to construct and operate a
retail drug store facility, parking lot and related improvements (the "Project") on the Real Property in
accordance with the Plans identified in Paragraph 3 of this Agreement.
C. On August 2, 2000, the City Council of the City adopted its Resolution No. 2000-55
approving Conditional Use Permit No. CUP 00-3 ("Conditional Use Permit") for the construction of
the Project on the Real Property, subject to the terms, conditions and restrictions stated in this
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Agreement, Resolution No. 2000,..55 artd in the Conditional Use Permit. As a condition of the
approval of the Conditional Use Permit, the City has required Developer to construct, install and pay
for the Public Improvements defined and identified in Paragraph 2 of this Agreement and to execute
and record this Agreement. Developer has agreed: i) to accept such terms, conditions and restric-
tions, ii) to execute, comply with and perform the obligations of Developer under this Agreement, and
iii) to record this Agreement as a servitude upon the title to the Real Property.
D. Subdivision 4 of Section 525.13 of the Hopkins Zoning Ordinance provides that the
City may require an applicant for a Conditional Use Permit to enter into a Conditional Use Permit
Agreement establishing the terms, conditions and restrictions imposed upon approval of a Conditional
Use Permit. This Agreement is entered into by the City and Developer pursuant to Subdivision 4 of
Section 525.13 of the Hopkins Zoning Ordinance.
NOW, THEREFORE, in consideration of the foregoing Recitals and the approval and
issuance of the Conditional Use Permit, Developer agrees to the terms and conditions stated in this
Agreement and declares that all of the Real Property and the Project shall be held, transferred, leased,
occupied, constructed, used and developed subject to the following agreements, terms, covenants,
conditions and restrictions, as the same may subsequently be terminated in accordance with the terms
of this Agreement:
1. Recitals IncorDorated. Recital Paragraphs A through D, above, are incorporated in
and made a part of this Agreement.
2. Construction ofImDrovements. As a condition of approval ofthe Conditional Use
Permit, Developer has agreed to construct the "Public Improvements" (hereinafter defined). The
terms, covenants, conditions, restrictions and agreements stated in this Agreement shall apply both to
the construction of said Public Improvements and to the construction, occupancy, use and
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development of all of the other facilities and improvements constituting a part of the Project as
described herein and required hereby.
A. Public Improvements. Developer shall construct, install and pay for all of the
facilities and improvements, if any, described in Exhibit B hereto and in Subparagraphs 6. G.,
ii., iii, iv. and v. of this Agreement, which facilities and improvements, are herein collectively
referred to as the "Public Improvements." The Public Improvements shall be completed in
accordance with: i) the terms and conditions stated in said Exhibit B, ii) the Plans defined and
identified in Paragraph 3 of this Agreement; and iii) all of the other terms of this Agreement.
Developer's obligation to construct, install and pay for the Public Improvements shall include
completion of and payment for any and all labor, skill, material, equipment and other work
required during the course of construction to complete the Public Improvements in
compliance with the requirements of this Agreement.
B. Developer Improvements. In addition to the Public Improvements, Developer shall
also construct, install and pay for all other facilities and improvements constituting a part of
the Project, including those depicted in the Plans, which facilities and improvements are herein
referred to as the "Developer Improvements." The Developer Improvements shall include all
of the work and improvements described in Paragraph 6. of this Agreement other than any
Public Improvements. The Developer Improvements shall be completed in accordance with:
i) the Plans defined and identified in Paragraph 3 of this Agreement; and ii) all of the other
terms of this Agreement.
3. Identification of Plans. The Project shall be developed and the Public Improvements
and Developer Improvements constructed and completed in accordance with the following plans
which are hereinafter collectively referred to as the "Plans". The Plans shall not be attached to this
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Agreement. If any of the Plans are designated as "Preliminary", such Plan( s) shall, subject to City
approval, be modified, at Developer's expense, after the date of this Agreement to be suitable for final
construction purposes before commencement of any of the work described or depicted in the Plan in
question or issuance of a Building Permit for the Project. At such time as a Preliminary Plan has been
replaced by a final Plan approved by the City, all references in this Agreement to such Plan shall refer
to the final Plan. In the event of any conflict or inconsistency between the Plans and the provisions of
this Agreement, the provisions of this Agreement shall control. The Plans are:
Description of Plans
Plan A
P.r.~UmjnID:Y. Site Plan (Sheets
Company, dated August 7,2000.
) prepared by Landform Engineering
Plan B
Preliminary Landscaping Plan prepared by Landform Engineering Company,
dated August 7, 2000.
Plan C
Preliminary Grading and Erosion Control Plan prepared by Landform
Engineering Company, dated August 7, 2000.
Plan D
P.r..~UmjnID:Y...Utility Plan prepared by Landform Engineering Company, dated
August 7, 2000.
Plan E
The Storm Water Management Plan described in Paragraph 6.E. of this
Agreement.
Plan F
Preliminary Drainage Plan prepared by Landform Engineering Company,
dated August 7, 2000.
Developer agrees that the final grading plan and utility plan for the Project will show erosion control
measures, details of storm control structures, public utilities and proposed utility connections which
shall be subject to approval by City Staff Developer also agrees that the final Site Plan for the
P.I9j~~t.wiJh1f.QYi.d.~..~..mjmrrmmJtriy~w~Y:.d.i~1;:mg.~..Qf~Q..f~.~tft.Q.mJ.h.~..~.~~.t..gY.r.l?J.in~.9..f..C.mm1Y.RQ~d.
73 to the parking lot for the Project.
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. 4. Construction Standards and Procedures. The Public Improvements and the
Developer Improvements shall be constructed and installed in accordance with City standards, codes,
regulations and ordinances. All Plans and specifications for the Public Improvements shall be
prepared and certified by a registered professional engineer or engineers employed by Developer,
("Developer's Engineer"), and shall be furnished to the City and approved by the City Engineer prior
to issuance of a Building Permit for the Project. The City Engineer shall review and approve
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preliminary and final design Plans and contract specifications for the Public Improvements.
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 from time to time 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, regulations 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 final inspection.
In connection with the construction of the Public Improvements, Developer shall restore all
City streets, sidewalks, public and private utilities and other public facilities and property disturbed or
damaged as a result of Developer's construction activities to substantially the same condition as
existed prior to commencement of construction.
Within sixty (60) days after the completion of the Public Improvements, Developer shall
supply the City with the following: (a) a complete set of reproducible mylar as-built plans, (b) two
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complete sets of utility tie sheets, (c) location stationing and swing ties of all utility stubs, (d)
benchmark network and (e) digital as-builts conforming with the following requirements:
i. Digital Files in Microstation DGN Format in NAD 83 Hennepin County Ground
Coordinates.
ii. All Cell Libraries and Line Styles shall be included.
iii. Level structure shall conform to current Hopkins Level Structure.
5. License. Developer hereby grants the City, its agents, employees and inspectors a
license to enter the Real Property, as necessary, to perform all work and inspections deemed
appropriate by the City in conjunction with construction of the Public Improvements and the
Developer Improvements. Such license shall terminate upon the latter of: i) the date of final
acceptance of the Public Improvements by the City in accordance with the provisions of Paragraph 7
of this Agreement; or ii) the date of completion of the Developer Improvements, as evidenced by
issuance of a Certificate of Occupancy for the Project.
6. Additional Conditions and Reauirements. Developer agrees that the Conditional
Use Permit has been issued subject to and that Developer shall perform and satisfy the following
conditions and requirements:
A. Plattios!. As part of the development of the Project, Developer has submitted the
preliminary plat of Maggie' s Addition ("Plat") for approval by the City. Prior to execution of
the Plat by the City or the issuance of a Building Permit for the Project, Developer shall, at
Developer's sole expense, satisfy all terms, conditions and requirements of final approval of
the Plat by the Hopkins City Council and the ordinances, statutes and requirements of the
City, Hennepin County, Minnesota, and the State of Minnesota, applicable to the Plat. Prior
to execution of the Plat by the City or issuance of a Building Permit for the Project, a Park
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Dedication Fee in the amount of $34,104.00 (amount for Real Property only) shall be paid to
the City, as required by Section 500.75 of the Hopkins City Code.
B. Lot Variance. Prior to execution of the Plat by the City or issuance of a Building
Permit for the Project, Developer shall have obtained and shall thereafter comply with and
satisfy all terms, conditions and requirements of the irregular lot variance for Lot 1, Block 1,
of the Plat.
C. Recinrocal Access Easements. Prior to execution of the Plat by the City or issuance
of a Building Permit for the Project, the Developer shall have entered into a Reciprocal
Easement Agreement with Hopkins Midwest Hotel Limited Partnership ("Hopkins
Midwest"), the owner of Lot 2, Block 1, of the Plat ("Lot 2") establishing reciprocal
easements over the Real Property and Lot 2 and for access to Robinwood Lane and 5th Street
North as depicted in the Plans. Such Reciprocal Easement Agreement shall be subject to
approval by City staff and the City Attorney and shall be recorded by Developer as an
encumbrance against the title to the Real Property.
D. County Road 73 Access. Reference is made to the "right in/right out" access to
Hennepin County Road 73 ("County Road 73 Access"), which is to be completed as part of
the Public Improvements and is depicted in the Plans. Pursuant to a letter, dated September
28, 2000, from the Hennepin County Transportation Department attached to this Agreement
as Exhibit C, Hennepin County will issue an entrance permit for the County Road 73 Access,
upon the terms and conditions stated in Exhibit C. Developer shall comply with all of the
terms and conditions stated in Exhibit C, and shall also dedicate the additional 17 feet of
right-of-way for County Road 73 recommended thereby. Further, in the event the State of
Minnesota Department of Transportation ("MN DOT") withholds or reduces funding for the
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future construction or re-construction ofintersection improvements at State Trunk Highway 7
and County Road 73 as a result of the location of the County Road 73 Access, Developer
shall reimburse the City for ~Q%.Qfthe amount ofMN DOT funding withheld or reduced, up
to a maximum reimbursement amount of 50% of Fifty Thousafld Dollars ($50,000.00)
IW~Dty::fi.Y.~_.T.h.Q1U~~d..PQU1M:!L($.~~..QQQJ)'Q). At such time as the amount of the reduction or
withholding of funds from MN DOT has been determined, the City shall assess the full
amount of such reimbursement, together with interest thereon at a rate not to exceed eight
percent (8%) per annum, against the Real Property as a special assessment pursuant to Minn.
Stat. Chapter 429, and Developer hereby waives all rights notice of such assessment,
objection to the assessment or the amount to be assessed and any rights to appeal such
assessment. Developer acknowledges that Developer and the Real Property shall receive a
benefit as a result of the approval of the County Road 73 Access equal to or greater than the
amount of the reimbursement due to the City under this Paragraph 6D.
E. Storm Water Manae:ement Plan. Prior to issuance of a Building Permit for the
Project, Developer shall submit a Storm Water Management Plan to the City together with
such other evidence as the City shall reasonably require demonstrating that the storm water
management measures and improvements for the Project shall comply with the standards and
requirements of Section 546 of the Hopkins City Zoning Ordinance. The Storm Water
Management Plan must be approved by and acceptable to the City Engineering Staff The
Developer shall also comply with all requirements of the approved Storm Water Management
Plan and execute and deliver to the City a Maintenance and Right of Entry Agreement in the
form required by the City for access to and maintenance of storm water management
improvements to be constructed on the Real Property. Applicant shall also, prior to issuance
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of a Building Permit for the Project, obtain approval and any required permits and approvals
from the Nine Mile Creek and! or Minnehaha Creek Watershed Districts of the Storm Water
Management Plan for the Project.
F. Parkin!! Easements. Prior to execution of the Plat by the City or issuance of a
building permit for the Project, Developer shall have entered into the following parking
easements:
A Parking and Access Easement Agreement with the owner of the adjacent
commercial property ("Adjacent Property") located in the southeast quadrant of the
intersection of 17th Avenue North and Fifth Street North (the so-called "White Wolf
Property"). Such Easement Agreement shall provide for the shared use of certain
parking facilities and driveway access between the Project and the Adjacent Property,
and shall be subject to approval by City Staff and the City Attorney, including
confirmation that parking for the Project and for the Adjacent Property shall comply
with parking requirements of the Hopkins City Code. Such Parking And Access
Easement Agreement will be recorded by Developer as an encumbrance against the
title to the Real Property.
ii) A Reciprocal Parking Easement (which may be incorporated in the Parking And
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Access Easement referred to in Subparagraph i), above) between Developer and
Hopkins Midwest which shall provide for shared use of parking facilities between the
project and Lot 2, and shall be subject to approval by City Staff and the City Attorney,
including confirmation that parking for the Project and the hotel facility to be
operated by Hopkins Midwest on Lot 2 shall comply with parking requirements of the
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Hopkins City Code. Such Reciprocal Parking Agreement will be recorded by
Developer as an encumbrance against the title to the Real Property.
G. Road and Traffic Imorovements. The final Plans shall comply with those
recommendations of the Traffic Study Memorandum, dated July 18, 2000, prepared by
Benshoof & Associates, Inc. ("Traffic Study"), which are described below. Developer shall
also complete, at Developer's sole expense, all of the roadway, intersection and other traffic
improvements. sidewalks and trails recommended by the Traffic Study that are described in
this Agreement, including work and improvements located on City-owned right of way that is
not part of the Real Property all of which is shown on the Plans or is described in the Traffic
Study. Specifically, Developer agrees that it shall comply with, perform and complete the
following terms, conditions, improvements and recommendations of the Traffic Study:
i. The final Plans for the Project shall incorporate those parking and access
modifications and improvements shown as Notes A and B in Figure 4 of the Traffic
Study. Prior to issuance of a Building Permit for the Project, the City shall have
approved the filial Plans, including the incorporation of Notes A and B in Figure 4 of
the traffic Study.
ii. The final Plans shall provide for and depict the removal of road improvements within
the north service road of State Highway 7 as shown on the Preliminary Site Plan (plan
A). Developer shall, at Developer's sole expense, remove all curbs, pavement and
other street improvements within that part of the right of way for the north service
road of State Highway 7 as depicted in the final plans, and shall otherwise complete
all work and improvements shown in the Plans. The final Landscaping Plan (plan B)
for the Project shall include and depict landscaping improvements to be installed
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within the right of way of the north service road of State Highway 7 following the
removal of road improvements, all at Developer's sole expense. The location, design
and selection of landscaping improvements to be installed by Developer shall be
subject to final approval by the City. The City shall not vacate any part of the North
Service Road of State Highway 7, and any use thereof by Developer shall be
permissive and shall establish no right, title or interest in Developer other than those
rights established by the License And Use Agreement referred to below. Prior to
issuance of a Building Permit for the Project, the Developer and the City shall have
entered into a License and Use Agreement, on terms and conditions acceptable to the
City, which shall require and allow Developer to maintain the landscaping
improvements to be installed in the right of way of the north service road, but shall
allow the City to enter such right of way and remove landscaping improvements, in
the City's discretion. The License and Use Agreement shall, however, provide that, in
the event the City removes landscaping from the right of way area, the City may not
require Developer to replace such removed landscaping with new landscaping to be
installed on the Real Property.
The final Plans for the Project shall provide for and depict the reconstruction of the
intersection of Robinwood Lane and the north service road of State Highway 7 as
depicted in the Preliminary Site Plan (plan A). Developer shall, at Developer's sole
expense, complete all work and improvements required for the reconstruction of such
intersection, as provided in the final Plans.
The final Plans shall also provide for and depict removal of the access to State
Highway 7 located east of Robinwood Lane. Developer shall, at Developer's sole
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expense, complete all work and improvements required for the removal of such access
and restoration of any public right of way areas. Prior to performing such work or
improvements, Developer shall obtain any necessary approvals from the State of
Minnesota, Department of Transportation.
Developer shall also complete all grading and landscaping work that is required to
restore all public right-of-way and easement areas in conjunction with completion of
any Public Improvements.
vi. All of the facilities and improvements recommended by the Traffic Study and
described in Subparagraphs ii., iii., iv. and v. of this Paragraph 6.G. shall be Public
Improvements subject to all terms, covenants and conditions of this Agreement
applicable to the Public Improvements.
Vll. Developer shall not be required to perform any traffic signal construction work as part
of the Public Improvements.
H. Demolition and Site Gradinl!. The final Plans for the Project shall provide for and .
depict the demolition and removal of the existing Hopkins House Hotel facility and all related
improvements("Hopkins House") from the Real Property, with the exception ofthat part of
the Hopkins House that is to be retained and remodeled in accordance with Conditional Use
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Permit No. CUP 00-4, as approved by the Hopkins City Council for the demolition and
reconstruction of the Hopkins House. Prior to issuance of a Building Permit for the Project,
demolition of that part of the Hopkins House that is to be removed from the Real Property
shall have been completed as well as all rough grading work and other work required to
prepare the Real Property for construction of the Project and the remodeling and
reconstruction of the Hopkins House.
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. I. Lie:htine: Plan. (Intentionally Omitted),
J. Easements. The Developer shall grant to the City permanent utility and drainage,
trail, sidewalk or other easements, if any, as shown on the Plans or the Plat for the
establishment, use, repair or maintenance of any of the Public Improvements.
7. Acceotance of Ownershio of Public Imorovements. Upon completion of
construction of the Public Improvements, and final acceptance and approval of the Public
Improvements by the City, all of the Public Improvements located within or upon any public
easements, rights-of-way or City-owned land shall become the sole property of the City, and
Developer shall transfer the Public Improvements to the City free and clear of all liens and
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encumbrances.
At such time as the Public Improvements have been completed, Developer's Inspector,
representatives of Developer's contractors, and a representative of Developer's Engineer will make a
final inspection of the Public Improvements with the City Engineer. The City Engineer shall be
entitled to review and approve any punch list items or lists of incomplete or defective work
comprising the Public Improvements to be submitted by Developer or its representatives to the
contractor(s) responsible for completion of the Public Improvements to assure that the same are
completed in accordance with the requirements of this Agreement. As a condition of its acceptance
of title to any ofthe Public Improvements, the City shall receive from Developer written evidence, in
form and content reasonably acceptable to the City, that Developer has caused all incomplete or
defective work to be completed or corrected and has made payment in full for all work comprising the
Public Improvements. Before the City accepts title to the Public Improvements, the City Engineer
shall be reasonably satisfied that all of the Public Improvements have been completed in accordance
with the Plans and the requirements of this Agreement and that Developer has made payment in full
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. for all of the work comprising the Public Improvements. Final acceptance of the Public
Improvements by the City shall be evidenced by a resolution duly adopted by the City Council of the
City.
8. W arrantv. Developer warrants that all work comprising the Public Improvements
shall be :free :from defective materials or faulty workmanship for a period of two (2) years after
acceptance o(the Public Improvements by the City as evidenced by a resolution duly adopted by the
City Council, except that trees and landscaping plantings shall be warranted for twelve (12) months
:from the date of planting. All work and materials comprising the Public Improvements which are
found to be defective within two years after acceptance thereof by the City (or twelve (12) months
from the date of planting in the case of landscaping improvements) shall be repaired or replaced by
Developer at Developer's sole expense.
. 9. Reimbursement of Costs to City. Developer shall reimburse the City for all
reasonable out-of-pocket costs incurred by the City in co~ection with the preparation, negotiation
and execution of this Agreement and the administration, performance and enforcement of this
Agreement and the Conditional Use Permit. Such out-of-pocket costs to be reimbursed by Developer
shall include, but are not limited to, all fees due to consultants retained by City, whether incurred
before or after the date of this Agreement, including, without limitation, traffic, development, fiscal,
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noise level consultants and third parties retained by the City, environmental, geotechnical, surveying,
engineering, inspections or legal services. Upon request by the City and delivery ofitemized invoices,
Developer shall pay such reimbursements directly to the third party or consultant to whom such fees
are due. Developer's failure to reimburse or pay such consultant and third-party fees within thirty
(30) days of request for payment shall be in event of default under this Agreement.
10. On-Site Imnrovements. (Intentionally Omitted)
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. 11. Other Governmental Aoorovals. Developer shall obtain, all required approvals
and/or permits from the Minnesota Pollution Control Agency, Minnesota Department of
Transportation, Hennepin County, the Nine Mile Creek and/or Minnehaha Creek Watershed
Districts and any other governmental authorities whose approval is required for the construction of
the Public Improvements or the Developer Improvements and operation of the Project on the Real
Property. Developer shall maintain all such required permits and comply therewith at all times.
12. Time of Performance. Developer shall commence construction of the Public
Improvements within 60 days of the date of issuance of a building permit for the Project 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. Comoliance 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 and
the Conditional Use Permit shall run with the title to the Real Property and apply to and bind the
Developer and each and every subsequent owner of any part of the Real Property and their respective
successor and assigns, and shall operate as a covenant passing with the title to the Real Property and
any part thereof All of said terms, conditions and restrictions are imposed upon the Real Property as
a servitude in favor of the City of Hopkins, Minnesota, for its benefit only. The terms, conditions and
restrictions established by this Agreement are perpetual in duration, except as may be specifically
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otherwise provided in this Agreement. To the extent this Agreement expressly provides for the future
termination of any ofits terms, conditions and restrictions or Developer's obligations hereunder, such
terms, conditions and restrictions or Developer's obligations established by this Agreement shall, .
however, be terminated and released at any time, in whole or in part, by the City by means of a
written Release, in recordable form, duly executed by the City, within a reasonable time after delivery
of a written request for such Release from Developer. Upon satisfactory completion of the Public
Improvements in compliance with the requirements of this Agreement, the City shall execute and
deliver to Developer a certificate, in recordable form, certifying as to Developer's compliance with the
provisions of this Agreement applicable to construction of the Public Improvements.
14. Security and Claims. To guaranty Developer's compliance with the terms of this
. Agreement, payment of the cost of all Public Improvements and completion of construction thereof,
Developer shall deliver to the City the following Letters of Credit, cash and/or surety bond acceptable
to and in favor of the City (the "Security") issued by a bank or surety reasonably acceptable to the
City, provided the City agrees that a Letter of Credit issued by BNC Bank shall be acceptable to the
City. The Security for the landscaping improvements comprising a part of the Developer
Improvements or the Public Improvements shall be delivered to the City before issuance of a Building
Permit for the Project. The amount of such Security for landscaping improvements shall be equal to
150 percent of the estimated cost of the landscaping improvements, as established by a written
estimate submitted by Developer's landscaping contractor. The Security for the Public Improvements
shall be delivered to the City before commencement of construction of the Public Improvements or
issuance of a permit by the City permitting commencement of such construction. The amount of such
. Security for the Public Improvements, other than landscaping improvements, shall equal I 00 percent
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of the cost of such Public Improvements, as established by: i) the actual cost of completion of
construction of such Public Improvements as stated in the written contracts or subcontracts for their
construction and installation with the contractors or subcontractors retained by Developer or
Developer's general contractor (which written contracts or subcontracts shall be delivered to the
City), or ii) a written estimate from Developer's Engineer approved by the City Engineer. The
Security shall be conditioned upon Developer's completion of the Public Improvements and payment
of the entire cost thereof, and the form and content of the Security shall be subject to the reasonable
approval of the City. Developer shall maintain the Security in effect for a term ending one (1) year
after die date on which Developer has substantially completed the Public Improvements as certified by
Developer's Inspector and delivered proof of payment therefore to the City (which latter date is
herein referred to as the liT ermination Date"). The Security may be reduced to fifty percent (50%) of
its original amount immediately after the date on which Developer has substantially completed the
Public Improvements as certified by Developer's Inspector and deliver proof of payment therefor to
the City. Thereafter, no later than thirty (30) days before the expiration of the Security, Developer
shall deliver to the City original written evidence, in form reasonably acceptable to the City, extending
the term of the above-required Security for successive one (1) year periods, but in no event extending
beyond the Termination Date. If Developer fails to deliver such original written evidence of extension
of the Security at least thirty (30) days before expiration of the Security, Developer shall be deemed
to be in default under this Agreement and the City may draw upon or enforce the Security. The City
may draw upon or enforce the Security for any violation of the terms of this Agreement which is not
cured within ten (10) business days after written notice to the Developer or, if the violation is of such
a nature that it cannot reasonably be cured within ten (10) business days, such longer period of time
as is necessary to cure the violation provided: i) Developer is proceeding with all due diligence to
c:hopcivil\CondUse.Semper
~ 17 ~
. cure the violation; and ii) the violation is cured no later than thirty (30) days before the expiration of
the Security. If the Public Improvements are not completed by the dates for their completion stated in
Paragraph 12 of this Agreement, the City may also draw upon or enforce the Security. If the Security
is drawn upon, the draw shall be used to cure the default (including completion of the Public
Improvements by the City) and may also be used to payor reimburse the City for any cost, expenses
or damages recoverable under Paragraph 15 of this Agreement. The Security, minus any amounts
drawn thereon, shall be released to Developer on the Termination Date, provided: i) Developer is not
in default in the performance of its obligations under this Agreement; and ii) the Security shall not be
released on the Termination Date if a demand or proceeding is then pending to enforce the Security.
Developer shall timely pay all valid claims of contractors, material suppliers and others contributing
any labor, material or services to the construction of the Public Improvements. Developer agrees that
. it shall protect, indemnify and hold the City and its agents, representatives and employees harmless
from and against all costs, damages and liabilities, including reasonable attorneys' fees and Court
costs, resulting from or incurred in connection with Developer's failure to comply with the terms,
covenants, conditions and requirements of this Agreement, including failure to timely pay persons
.
supplying labor, material or services to the construction of the Public Improvements.
Notwithstanding any provision of this Agreement apparently to the contrary, the City may retain the
Security, and Developer shall extend the term thereof, until such time as Developer has provided the
City with evidence reasonably acceptable to the City that all laborers, materials suppliers and others
contributing to the construction of the Public Improvements have been paid, in full. Developer's
failure to so extend the Security at least thirty (30) days before its expiration shall be a default by
Developer entitling the City to draw upon or retain the full amount of the Security. In addition, the
City shall be entitled to retain and draw upon the Security in the event Developer fails to protect,
c:hopcivil\CondUse.Sempcr
- 18-
established by this Agreement shall be enforceable exclusively by the City of Hopkins, Minnesota, and
shall be enforceable by injunctive relief, prohibitive or mandatory, to prevent the breach of or enforce
performance or observance of the terms, conditions, requirements and restrictions established by this
Agreement, or by any other available legal proceeding or remedy, including, but not limited to:
A. Legal proceedings to recover, collect, payor reimburse the City for the cost of
completing construction of the Public Improvements.
B. All reasonable costs and expenses incurred by the City in curing any other default by
Developer in the performance of any of the terms, covenants and conditions of this
. Agreement.
C. All reasonable costs and expenses for engineering, legal and administrative expenses
incurred by the City in enforcing Developer's performance of this Agreement or the
completion of construction of the Public Improvements.
D. Any other remedy or sanction provided by Minnesota Statutes or the Ordinances of
the City of Hopkins.
Developer acknowledges that the rights of the City to enforce performance of the terms, conditions,
requirements and restrictions established by this Agreement are special, unique, and of an
extraordinary character and that, in the event Developer violates or fails or refuses to perform any
term, condition or restriction established by this Agreement, the City shall have no adequate remedy
at law. Developer agrees, therefore, that in the event Developer violates any term, condition or
.
restriction established by this Agreement, the City, may, at its option, initiate and prosecute an action
c:hopcivil\CondUse.Semper
- 19-
. to specifically enforce the performance of the terms, conditions and restrictions established by this
Agreement. No remedy specified in this Agreement is intended to be exclusive, and each remedy shall
.
.
be cumulative, and in addition to each and every other remedy. Failure of the City to enforce any of
the terms, conditions and restrictions established by this Agreement in any particular instance shall in
no event be deemed to be a waiver of the right to do so as to any subsequent violation. Developer
agrees that Developer shall pay the City's reasonable attorneys' fees and expenses incurred in the
enforcement of the terms, conditions and restrictions of this Agreement.
16. Notices. Any notice, request or other communication required or provided to be
given under this Agreement shall be in writing and shall be deemed to be duly given when delivered
personally to an officer of Developer or to the City Manager of the City or when mailed by first class
United States Mail, postage prepaid, addressed as follows:
To Developer:
WH Investments LLC
1000 Rand Tower
527 Marquette Avenue
Minneapolis, MN 55402
To City:
City of Hopkins
Attention: City Manager
1010 First Street South
Hopkins, Minnesota 55343
or to such other address as either party, by notice given as herein provided, shall designate. Mailed
notice shall be conclusively deemed to have been given two (2) business days after the date of
mailing.
c,hopcivil\CondU.e.Semper
,20,
. 17. Severability. Invalidation of any of the terms, conditions, provisions or restrictions of
this Agreement, whether by Court Order or otherwise, shall in no way affect any of the other terms,
conditions, provisions and restrictions, all of which shall remain in full force and effect.
18. Headin2s. The headings and captions at the beginnings of paragraphs of this
Agreement are for convenience of reference only and shall not influence its construction.
19. Execution of Counteroarts. This Agreement may be simultaneously executed in
several counterparts, each of which shall be an original, and all of which shall constitute one and the
same instrument.
20. Construction. This Agreement shall be construed and enforced in accordance with
the laws of the State of Minnesota.
21. Evidence of Title and Recordation of Conditional Use Permit. Prior to the
. execution of this Agreement, Developer shall provide the City with evidence of title to the Real
.
Property, at Developer's expense, in the form ofa current Title Opinion or Commitment for Owner's
Title Insurance showing fee title to all of the Real Property in the name of Developer. Developer
shall cause this Agreement to be executed by or consented to by all persons holding any interest in the
title to the Real Property, or lien thereon, as deemed necessary by the City. Developer agrees that
this Agreement and the Conditional Use Permit shall be filed for record as a restriction and
encumbrance upon the title to the Real Property.
22. Estoooel Certificates. The City shall, upon no more than twenty (20) days written
request therefor from Developer, execute and deliver to Developer, a certificate stating: a) to the best
of the City's knowledge, whether Developer is in default in the performance of its obligations under
this Agreement and, if so, identifying such default; b) that this Agreement is in full force and effect
and identifying any amendments to this Agreement as of the date of such certificate; and c) identifying
c:hopcivil\CondUse.Semper
~ 21 ~
. those undertakings, liabilities and obligations of Developer under this Agreement that have been fully
satisfied, performed or completed. In no event shall the City or any of its officials, agents or
employees, have any monetary liability for failure to provide such a certificate, nor shall the City's
failure to provide such a certificate in any way alter delay or modify Developer's obligations under
this Agreement or create any counterclaim or setoffin favor of Developer.
IN WITNESS WHEREOF, Developer has executed this Agreement as of the date and year
first above written.
'.v H INVESTMENTS LLC HQP..1..LLC.
By
Its
.
COUNTY OF
)
)SS
)
STATE OF
The foregoing instrument was acknowledged before me this day of
2000, by the
of'.V H Ia'lestmen.ts LLC a Dela'.vare HOP 7 LLC a Minnesota
, , .......__....................:1...............................
limited liability company under the laws of , on behalf of the company.
Notary Public
.
c:hopcivil\CondUse.Semper
.22.
. TIllS INSTRUMENT WAS DRAFTED BY:
Miller, Steiner & Curtiss, P.A.
400 Wells Fargo Bank Building
10 11 First Street South
Hopkins, Minnesota 55343
.
.
c,hopcivil\CondU.e.Semper
,23,
.
.
.
EXHmIT A
LEGAL DESCRIPTION OF REAL PROPERTY
Lot 1, Block 1, and Outlot A, Maggies Addition, according to the recorded plat
thereof
c:hopcivil\CondUse.Semper
~ 24 ~
.
.
.
EXHmIT B
PUBLIC IMPROVEMENTS
Intentionally left blank
c:hopcivil\CondUse.Semper
,25,
.
.
.
MILLER, STEINER & CURTISS, P.A.
PROFESSIONAL ASSOCIATION
ATTORNEYS AT LAW
JERRE A. MILLER
JEREMY S. STEINER *
WYNN CURTISS
400 WELLS FARGO BANK BUILDING
1011 FIRST STREET SOUTH
HOPKINS, MINNESOTA 55343
.Real Property Law Specialist, certified
952-938-7635
FAX 952-938-7670
by the Minnesota Stale Bar Association
MEMORANDUM
DATE:
October 17, 2000
. TO:
James Kerrigan, Director of Planning
Steven Stadler, Public Work,.Director
Nancy Anderson, Planner 'if
Jeremy Steiner 15 >
Conditional Use Permit Agreements for Hopkins House and Walgreens
Projects at State Highway 7 and County Road 73
FROM:
RE:
The purpose of this memo is to summarize the substantive provisions of the Conditional Use Permit
Agreements to be executed by W H Investments LLC ("W H Investments") and Hopkins Midwest
Hotel Limited Partnership ("Hopkins Midwest") documenting the terms and conditions under which
the property in the northeast quadrant of the intersection of State Highway 7 and Hennepin County
Road 73 will be redeveloped by the construction of a new Walgreens store ("Walgreens Project")
and the partial demolition and reconstruction of the Hopkins House Hotel ("Hopkins House
Project").
CUP AGREEMENT FOR WALGREENS PROJECT
The proposed CUP Agreement for the Walgreen Project ("Walgreens CUP Agreement") states the
terms and conditions under which the City has approved and will issue a Conditional Use Permit for
the Walgreens Project. The following are the substantive terms and conditions of the Walgreens
CUP Agreement:
1.
Paragraphs I through 3 of the Walgreens CUP Agreement require W H Investments to
complete all "Public Improvements" and "Developer Improvements" according to the plans
previously submitted to and approved by the City. Those plans are listed at Page 4 of the
Walgreens CUP Agreement.
c:\file\hopcivil\kerrigan3.mem
1
.
.
.
2.
The majority of the "Public Improvements" to be completed as part of the overall
redevelopment project. are the responsibility of W H Investments, and are detailed in
Paragraph 6 of the Walgreens CUP Agreement. Referencing the subparagraphs of Paragraph
6, those Public Improvements are:
Subparagraph 6.D. This subparagraph states that W H Investments has obtained approval
for Hennepin County to construct a "right in/right out" access to Hennepin County Road 73
in the approximate location of the existing access for the abandoned gasoline station. A copy
of the letter from the Hennepin County Transportation Department approving the access
permit to County Road 73 is attached to the Walgreens CUP Agreement as Exhibit C. W H
Investments is required to comply with all of the terms and conditions stated in the approval
letter from the County. In addition, should MN DOT withhold or reducing funding for the
future reconstruction of the intersection of State Highway 7 and County Road 73 because the
access point to County Road 73 is to be maintained by Walgreens in it's present location, W
H Investments and Hopkins Midwest have agreed to reimburse the City for this reduced
funding, up to a maximum amount of $50,000.00. W H Investments has agreed to assume
responsibility for 50% of this reimbursement, and Hopkins Midwest has assumed
responsibility for the remaining 50%. Both CUP Agreements provide that, at such time as
the actual amount of the loss of funding from MN DOT has been determined, the City will
specially assess the reimbursement obligations against both the Walgreens Project and the
Hopkins House Project, with interest at 8% per year.
Subparagraph 6.G. This subparagraph requires W H Investments to comply with certain
recommendations of the traffic study from Benshoof & Associates, dated July 18, 2000.
Paragraph ii) at Page 10 of the Walgreens CUP Agreement, requires W H Investments to
remove the north.service road of State Highway 7 in the area immediately south of the
Walgreens Project, which is located within a City-owned right-of-way. W H Investments
will then install landscaping improvements in accordance with the landscaping Plan
approved by the City. The City will retain ownership of the north service road.right-of-way,
and the right to remove the landscaping improvements and return the north service road area
to public road use in the future.
Subparagraph 6.G.im. This subparagraph, at Page 11 of the Walgreens CUP Agreement,
requires W H Investments to reconstruct the intersection of Robinwood Lane and the north
service road of State Highway 7, immediately east of the abandoned north seJ;Vice road.
Subparagraph 6.G.iv) This subparagraph requires W H Investments to remove the existing
access point to State Highway 7, which is located east of the intersection of Robin wood Lane
and the north service road.
Subparagraph 6.G.v). This subparagraph requires W H Investments to restore all public
right-of-way and easement areas disturbed as a result of construction activities for the
Walgreens Project.
3.
Paragraph 12 of the Walgreens CUP Agreement requires W H Investments to begin
construction of the Public Improvements within 60 days after issuance of a building permit
for the Walgreens Project and to complete construction no later than December 31, 2001.
c:\file\hopcivil\kerrigan3.mem
2
.
4.
Subparagraph 2.B., at Page 3 of the Walgreens CUP Agreement, defines the "Developer
Improvements, as all of the facilities and improvements constituting a part ofthe Walgreens
Project, excluding only the Public Improvements." This subparagraph requires W H
Investments to construct the Walgreens Project in accordance with the plans previously
approved by the City.
5. Paragraph 6 of the Walgreens CUP Agreement also lists specific conditions applicable to the
construction of the Developer Improvements included in the Walgreens Project. Referencing
the Subparagraphs of Paragraph 6, those conditions are:
Subparagraph 6.A. This subparagraph requires W H Investments to replat the site into two
lots, one which will be occupied by the Walgreens Project and the other by the Hopkins
House Project. W H Investments is to pay a $34,104.00 park dedication fee as a condition
of approval of the plat. Hopkins Midwest will also pay a separate park dedication fee of
$23,394.00.
Subparagraph 6.B. This subparagraph requires W H Investments to comply with all of the
conditions placed on the irregular lot variance approved by the City Council.
.
Subparagraph 6.C. This subparagraph requires W H Investments to enter into a reciprocal
easement agreement with Hopkins Midwest establishing reciprocal access easements for both
Projects for access to Robinwood Lane and 5th Street North, as shown on the Plans for the
Projects.
Subparagraph 6.F.i) and ii). These subparagraphs require W H Investments to enter into
parking and access easement agreements with the owner ofthe adjacent property occupied
by the White Wolf and MGM Liquor store facilities, and with Hopkins Midwest allowing
for the shared use of the parking facilities and driveway access between all three properties.
These parking and access agreements are to be reviewed and approved by City staff and the
City Attorney to confirm compliance with parking requirements of the Hopkins Zoning
Ordinance.
Subparagraph 6.G.i). The Developer Improvements for the Walgreens Facility are to
incorporate the parking and access recommendations of the Benshoof Traffic Study.
.
Subparagraph 6.H. This subparagraph requires W H Investments to complete the demolition
and removal of that part of the improvement for the existing Hopkins House facility that are
located on the land on which the Walgreens Project will be located. The Hopkins House
CUP Agreement contains a similar provision requiring that demolition and removal of the
existing Hopkins House facility be completed by Hopkins Midwest, with the exception of
that part of the facility that is to be remodeled and will continue in operation. All demolition
is to be completed before building permits will be issued for the Walgreens Project or
reconstruction of the Hopkins House Project.
6.
Paragraphs 7-21 of the Walgreens CUP Agreement contain provisions similar to those in
previous CUP Agreements approved by the City Council relating to construction standards
for "Public Improvements", construction warranties, the Developer's obligation to reimburse
c:\file\hopcivil\kerrigan3.mem
3
.
.
.
the City for out-of-pocket costs, letter of credit or other security requirements and the
remedies available to the City upon a default by the Developer.
HOPKINS HOUSE CUP AGREEMENT
The proposed CUP Agreement for the Hopkins House Project ("Hopkins House CUP Agreement")
states the terms and conditions applicable to the Hopkins House Project. The following is an outline
of those provisions of the Hopkins CUP Agreement that differ from the Walgreens CUP Agreement:
7. Virtually all of the "Public Improvements" to be completed as part of this redevelopment
project are to be completed by W H Investments as part of the Walgreens Project. The
Hopkins House CUP Agreement deals almost exclusively with requirements for the private
Developer Improvements for the Hopkins House Project.
8. Subparagraph 6.F. at Page 10 of the Hopkins House CUP Agreement, requires Hopkins
Midwest to provide the City, prior to issuance of a Building Permit, with written evidence
acceptable to the City demonstrating that Hopkins Midwest has "obtained unconditional and
immediately available financing or cash in amounts sufficient to complete (the Hopkins
House Project).
9.
Subparagraph 6.G.ii), at Page II, requires Hopkins Midwest to transfer additional right-of-
way area to the City located north of 5th Street North at the intersection of County Road 73,
approximately 12 feet in width, as needed to accommodate the future construction of a right
turn lane at this intersection.
10. Subparagraph 6.K., at Page 13, states that the final design for the Hopkins House must
incorporate the exterior elevations design for the reconstructed Hopkins House to be attached
to the Agreement as Exhibit D. This is to be the exterior elevation design that has previously
been submitted to the City Council in connection with Hopkins Midwest's application for
a conditional use permit.
11. The remaining terms and conditions of the Hopkins House CUP Agreement are essentially
the same as the provisions of the Walgreens CUP Agreement.
JSS
JW
Enc.
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4