CR 01-036 Conditional Use Permit Agreement- Hopkins House
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CITY OF
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March 15, 2001
HOPKINS
Council Report 2001-36
CONDITIONAL USE PERNUT AGREEMENT-HOPKINS HOUSE
ProDosed Action.
Staff recommends the following motion: Move to approve the conditional use permit
agreement to remodel the Hopkins House Hotel.
Overview.
As part of the conditional use permit approval for the remodeling of the Hopkins House,
National Lodging was 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 National
Lodging to proceed with this project. Semper Development 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?
. What is the assurance that a portion of the Hopkins House will be removed
and the rest remodeled?
SUDDortin2 Documents.
. Agreement
. Memo from Jeremy Steiner
Financial Impact: $ N/ A Budgeted:
Related Documents (CIP, ERP, etc.):
Notes:
Y/N
Source:
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CR2001-36
Page 2
Primary Issues to Consider.
. What are the specifics of the conditional use permit agreement?
The following are the main points addressed in the agreement:
. Developer improvements
. Reciprocal access and parking easements
. County Road 73 access
. Submission of a storm water management plan
. Evidence of financing
. Road and traffic improvements
. Demolition and site grading
. Reimbursement of costs to City
. Compliance with conditional use permit requirements
. What is the assurance that a portion of the Hopkins House will be removed and the
rest remodeled?
The agreement requires National Lodging to provide the City, prior to the issuance of a
demolition permit, written evidence that they have financing or cash to complete the
improvements.
The agreement with Semper Development does not allow Semper to obtain a building permit
to construct the Walgreens until the portion of the Hopkins House that is to be demolished is
removed. Also, National Lodging will not be able to get a building permit until the portion
of the Hopkins House is demolished.
Alternatives.
1. Recommend approval of the conditional use permit agreement. By approving the
conditional use permit agreement, the Hopkins House Hotel will be remodeled as
proposed.
2. Recommend denial of the conditional use permit agreement. By denying the conditional
use permit agreement, the Hopkins House Hotel will not be able to be remodeled as
proposed. If the City Council considers this alternative, findings will have to be
identified that support this alternative.
3. Continue for further information. If the City Council indicates that further information is
needed, the item should be continued.
. Pr.~tl~g..M.m-.9.b..2...~Q.QJ.
Miller, Steiner & Curtiss, P.A.
Draft 10/17/00
CONDITIONAL USE PERMIT AGREEMENT
This Conditional Use Permit Agreement (this" Agreement") is made and executed this
day of
, 2000, by Hopkins Midwest Hotel Limited Partnership, a Minnesota
. limited partnership ("Developer"), in favor of and for the benefit of the City of Hopkins, Minnesota
("City").
RECITALS
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 remodel, reconstruct
and operate a hotel 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. 2000-56
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approving Conditional Use Permit No. CUP 00-4 ("Cqnditional Use Permit") for the construction of
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. the Project on the Real Property, subject to the terms, conditions and restrictions stated in this
Agreement, Resolution No. 2000-56 and 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 ofthe 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 Incoroorated. Recital Paragraphs A through D, above, are incorporated in
and made a part of this Agreement.
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2. Construction ofImorovements. As a condition of approval of the Conditional Use
Permit, Developer has agreed to construct such "Public Improvements" as may be defined and
identified in Subparagraph A, below. The terms, covenants, conditions, restrictions and agreements
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. stated in this Agreement shall apply both to the construction of said Public Improvements and to the
construction, occupancy, use and development of all of the other facilities and improvements
constituting a part of the Project as described herein and required hereby.
A. Public Imorovements. Developer shall construct, install and pay for all of the
facilities and improvements, if any, described in Exhibit B hereto and in Subparagraph 6. G.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 ofthis 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
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during the course of construction to complete the Public Improvements in compliance with
the requirements of this Agreement.
B. Develooer Imorovements. 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
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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
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. which are hereinafter collectively referred to as the "Plans". The Plans shall not be attached to this
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
Preliminary Site Plan (Sheets ) prepared by Landform Engineering
Company, dated August 7,2000.
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Plan B
P..r.~limin~..Landscaping Plan prepared by Landform Engineering Company,
dated August 7, 2000.
Plan C
P..r.~.u..min~....Gradingand Erosion Control Plan prepared by Landform
Engineering Company, dated August 7,2000.
Plan D
Preliminary 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
r.r~limina.f.Y...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. Q~y.~.lQ1?~r...a.J.~Q...~g.n~~~.Jb!ltjh~..t1na.l...S.i1.~..r.l.lID..fQL1b.~
Project will provide a minimum driveway distance of80 feet from the east curb line of County Road
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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
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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. Plattine:. 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
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to execution of the Plat by the City or issuance of a Building Permit for the Project, a Park
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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
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. Evidence Of Financin2. Prior to issuance of a demolition permit or building permit
for the Project, Developer shall submit to the City written evidence, in form and content
acceptable to the City, demonstrating that Developer has obtained unconditional and
immediately available financing or cash in amounts sufficient to complete all facilities and
improvements included as part of the Project, including the Public Improvements. The
written evidence of fin~cing to be submitted to the City shall describe and disclose in detail
the estimated cost of completion of the Project and Public Improvements, the terms and
conditions of all financing for the Project, shall include copies of all documents and
submissions provided by Developer to the lender(s) providing financing for the Project, and
shall otherwise be acceptable to the City, in the City's sole discretion, to demonstrate
Developer's financial ability to complete the Project and the Public Improvements in
accordance with the terms and conditions of this Agreement and the Plans. Developer
acknowledges that the City may retain a consultant for the purpose of analyzing the
documents and information to be submitted to the City under this Paragraph F. and making
recommendations to the City regarding the Developer's financing, and Developer shall
reimburse the City for all fees of such consultant.
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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. 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 Note C in Figure 4 of the Traffic Study.
Prior to issuance of a Building Permit for the Project, the City shall have approved the
final Plans, including the incorporation of Note C in Figure 4 of the Traffic Study.
ii. To accommodate future construction of a right turn lane at the intersection of County
Road 73/17th Avenue North and 5th Street North, the Developer shall transfer fee title
to the additional right-of-way area located north of 5th Street North at the intersection
with County Road 73/17th Avenue North, as depicted in the Preliminary Site Plan
(plan A) and in Figure 6 of the Traffic Study. The right-of-way area to be transferred
to the City shall be approximately 12 feet in width from north to south and 170 feet in
length from east to west. The transfer of the additional right-of-way area to the City
shall occur prior to the City's execution of the Plat, and Developer shall, at
Developer's expense, provide the City with evidence of title to such additional right-
of-way area and obtain releases from all mortgagees or lienholders so that the
additional right-of-way area will be transferred to the City free and clear of all liens
and encumbrances.
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iii. 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.
iv. All of the facilities and improvements recommended by the Traffic Study and
described in Subparagraph 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.
v. Developer shall not be required to perform any traffic signal construction work as part
of the Public Improvements.
H. Demolition and Site Gradin2:. 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 of that part of
the Hopkins House that is to be retained and remodeled in accordance with Conditional Use
Permit, 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 ofthat 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.
I. Li2:htin2: 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.
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. K. Desism Requirement. The final design and final Plans for the Project shall
incorporate the design for the reconstructed Hopkins House depicted in the elevations for
such reconstruction attached to this Agreement as Exhibit D.
7. Accentance of Ownershin of Public Imnrovements. 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 ofits 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
for all of the work comprising the Public Improvements. Final acceptance of the Public
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. Improvements by the City shall be evidenced by a resolution duly adopted by the City Council ofthe
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 of the Public Improvements by the City as evidenced by a resolution duly adopted by the
City Council, except that trees and landscaping plantings shall be warranted for twelve (12) months
from the date of planting. All work and materials comprising the Public Improvements which are
found to be defective within two years after acceptance thereof by the City (or twelve (12) months
from the date of planting in the case of landscaping improvements) shall be repaired or replaced by
Developer at Developer's sole expense.
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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, if any, 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 Reauirements. 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 ofthe 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 of its 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
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Improvements.
14. Security and Claims. To guaranty Developer's compliance with the terms of this
Agreement, payment of the cost of all Public Improvements, if any, 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. 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,
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. shall equal 100 percent 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 the 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 "Termination 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. Developer shall initially deliver to the City the original
Security expiring no earlier than one (1) year after the date of delivery of the original Security to the
City. Thereafter, no later than thirty (30) days before the expiration of the Security, 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
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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 failureto timely pay
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persons supplying labor, material or services to the construction of the Public Improvements.
Notwithstanding any provision ofthis 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
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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,
indemnify and hold the City and its agents, representatives and employees harmless from costs,
damages and liabilities, including reasonable attorney's fees and Court costs, as provided above.
15. Enforcement of Ae:reement. The terms, conditions, requirements and restrictions
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
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. 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
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: Hopkins Midwest Hotel Limited Partnershp
Attention:
c/o National Lodging Companies, Inc.
9855 West 78th Street, Suite 220
Eden Prairie, MN 55344
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.
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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 of a 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 ofits 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
.
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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.
HOPKINS MIDWEST HOTEL LIMITED
PARTNERSHIP
By National Lodging Companies, Inc.
General Partner
By
Its
STATE OF
)
)SS
)
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2000, by . the
. of National Lodging Companies, Inc., a Minnesota corporation
the General Partner of Hopkins Midwest Hotel Limited Partnership, a limited partnership under the
laws of Minnesota, on behalf of the corporation.
Notary Public
TIllS 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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EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
Lot 2, Block 1, Maggies Addition, according to the recorded plat thereof
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Intentionally left blank
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EXHmIT B
PUBLIC IMPROVEMENTS
,24,
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EXHIBIT D
ELEVATION OF RECONSTRUCTED HOPKINS HOUSE FACILITY
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MILLER, STEINER & CURTISS, P.A.
PROFESSIONAL ASSOCIATION
ATTORNEYS AT LAW
JERRE A. MILLER
JEREMY S. STEINER *
WYNN CURTISS
400 WELLS FARGO BANK BillLDING
1011 FIRST STREEt SOUTH
HOPKINS, MINNESOTA 55343
.ReaI Property Law Specialist, cenified
952-938-7635
FAX. 952-938-7670
by the Minnesota State Bar Association
DATE:
. TO:
FROM:
RE:
MEMORANDUM
October 17, 2000
James Kerrigan, Director of Planning
Steven Stadler, Public Wor7ks Director
Nancy.Anderson, Planner
. Jeremy Steiner 1/5 s:
Conditional Use Permit Agreements for Hopkins House and Walgreens
Projects at State Highway 7 and County Road 73
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 1 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.
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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 ofthe 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.
Paragraphii) 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.iii). 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 se~ice 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.
")
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4.
Subparagraph 2.B., at Page 3 of the Walgreens CUP Agreement, defmes the "Developer
Improvements, as all of the facilities and improvements constituting a part of the 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, I 04.00 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.
.
Suboaragraph 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.n and ii). These subparagraphs require W H Investments to enter into
parking and access easement agreements with the owner of the 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
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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 11, 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
Ene.
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