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CR 2000-172 Conditional Use Permit Agreement- Semper Development CITY OF ~ HOPKINS . October 12, 2000 Council Report 2000-172 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 was also required to sign a conditional use permit agreement. Jerry Steiner will prepare a memo summarizing the agreement. The memo will be completed on Monday. Jerry Steiner will be present at the meeting to respond to specific questions. Primary Issues to Consider. . What are the specifics of the conditional use permit agreement? . Are there changes with the development? SUDDortine Documents. . Agreement Financial Impact: $ N/A Budgeted: Y!N Source: - Related Documents (CIP, ERP, etc.): Notes: . CR2000-172 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: . 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 are no changes to the site plan, but there is a change in the plat. The applicant will be dedicating an additional 17 feet of right-of-way on County Road 73. This will not affect the site plan. The county, when reviewing the plat, recommended closing the access from County Road 73. The county has allowed this access, but if MNIDOT 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 $50,000. The agreement with Semper provides that Semper will pay up to $50,000 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. e 3. Continue for further information. Ifthe City Council indicates that further information is needed, the item should be continued. . Miller, Steiner & Curtiss, P.A. Draft 10/12/00 CONDITIONAL USE PERMIT AGREEMENT This Conditional Use Permit Agreement (this "Agreement") is made and executed this day of ,2000, by Scmper DCvdopment Ltd., a COlpOI ation W H Investments LLC a Delaware limited liability company ("Developer"), in favor of and for the . benefit of the City of Hopkins, Minnesota ("City"). RECIT ALS A. Developer is the fee owner ofreal 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 c: hopcivil\CondUse. Semper ..- .----..--.. .._._u_ _____ .-- - ..-- -- . Agreement, Resolution No. 2000-55 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.] 3 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 Proj ect shall be held, transferred, leased, occupied, constructed, used and developed subject to the following agreements, terms, covenants, conditions and restrictions1 as the same may subsequently be terminated in accordance with the terms of this A~eement: 1. Recitals Incorporated. Recital Paragraphs A through D, above, are incorporated in and made a part of this Agreement. 2. Construction ofImprovements. As a condition of approval of the 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 c :hopcivil\CondU se ,Semper - 2 - -------- . development of all of the other facilities and improvements constituting a part of the Project..M described herein and refluired 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 ofthis 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 c :hopdviIICondUse.Semper - 3 - .-..-- .. . 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 JUlIe 2J, 2000.August 7, 2000. Plan B Prdimin<try Landscaping Plan prepared by Landform Engineering Company, dated July 24, 2000.August 7. 2OOO.c . Plan C PI climinar y Grading and Erosion Control Plan prepared by Landform Engineering Company, dated JUlle 2J, 2000.MKust 7, 2000. Plan D Prclimin<t1J Utility Plan prepared by Landform Engineering Company, dated June 2J, 2000.August 7, 2000. Plan E. The Storm Water Management Plan described in Paragraph 6.E. of this Agreement. Plan F Pldiminary Drainage Plan prepared by Landform Engineering Company, dated July 24, 2000.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. 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 c:hopcivil\CondUse.Semper - 4 - . 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 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 at all tin!c5 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 complete sets of utility tie sheets, (c) location stationing and swing ties of all utility stubs, (d) . benclunark network and (e) digital as-buiIts conforming with the following requirements: c:hopciviIICondUse. Semper - 5 - _.u __.._ -------.. . 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 Requirements. Developer agrees that the Conditional Use Permit has been issued subject to and that Developer shall perform and satisry the following conditions and requirements: A. Platting. 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, satisry all terms, conditions and requirements offinal 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 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. c:hop<:ivi IICondUse cSemper - 6 - -....---... . B. Lot Variance. Prior to execution of the Plat by the City or issuance ofa 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 I, of the Plat. C. Reciprocal Access Easements. Prior to execution ofthe 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 I, 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. Sh eet Va.cation. Prior to excwtion of the Plat by the City or issuance of a Duilding Pellnit ror the rlojcct, Dc v eloper shall have obtained ar!d shall thcrcafter pcIform and satisfy all t0111S, conditions ahd rcquircn!ehts for the proposed vacation of a portion oftllG p1:lblic light of WaJ at tLc ihterscctioll of Robin wood Lane and fifth Street North as sllowl1 in the Plans-; D. County Road 73 Access. Reference is made to the "right in/right out" access to Henne:Qin County Road 73 ("County Road 73 Access"), which is to be comj?leted as Dart of the Public Imyrovements and is de.I!icted in the Plans. Pursuant to a letter, dated Sentember 28.2000, from the Hennegin County Transgortation De.Qartment attached to this b-greement as Exhibit C, Hennepin County will issue an entranfe rrermit for the CouI1!Y Road 73 Access, . upon the terms and conditions stated in Exhibit C. Develorrer shall comply with all of the c:hopcivi I\CondUse. Semper - 7 - . 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 DeI!artment of Transportation C"MN DOT") withholds or reduces funding for the future construction or fe-construction of int~rsection im-Pfovements at State Trunk Highw~ 7 and County Road 7] as a result of the locafum of the County Road 73 Ac~ess,-Develo.Qer shall reimburse the City for the amount of MN DOT funding withheld or reduced. up to a maximum reimbursement amount of % ofFifiy Thousand Dollars ($50,000.00). &:;iuch time as the amount~ofthe reduction or withholding of funds from MN DOT has been determined. the City shall notify Developer of the amount of reimbursement to the Cirri and Developer shall pay such reimbursement to the City within thirtY (30) days of delivea of such notice. IfDeveloQer fails to pay such reimbursement to the City within said thirtY (30) . day period, the CiD'. shall be elilitled to assess the full amount of such reimbursement, together with interest thereon at a rate not to exceed eightpercent (8%) per annum.. against the Project as a sllecial assessment yursuant to Minn. Stat. Cha.Qter 429.. and Develo];!er p.ereby waives all rights notice of such assessment, objection to the assessment or the amonnt to be assessed and any rights to a.Q1leal such assessment. Develo.ner acknow~dges that Developer and the Real PropertY shall receive a benefit as a result of the arnroval of the Coun!y Road 73 Access equal to or greater than the amount of the reimbursement due to the Ci:fy 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 c:hopci vil\CondU se .Semper - 8 - . 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 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. Parking 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: i) A Parking and Access Easement Agreement with the owner of the adjacent commercial property ("Adjacent Property") located in the southeast quadrant ofthe intersection of 17th A venue 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. c:hopcivil\CondU se .Sem per - 9- --- -.. - . . ii) A Reciprocal Parking Easement (which may be incorporated in the Parking And Access Easement referred to in SubparagraQh n. above) between Developer and Hopkins Midwest which shall provide for shared use of parking faci I i ties 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 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 Improvements. 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 reconunended 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 final Plans, including the incorporation of Notes A and B in Figure 4 of the Traffic Study. c:hopcivilICondUse.Semper - 10- . 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 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. c :hopcivillCondU Se .Semper - 11 - . iii. 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. IV. 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 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. . v. 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. Y!b Developer shall not be required to perform any traffic signal construction work as part of the Public Improvements. H. Demolition and Site Grading. 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 c:hopcivil\CondU se .Semper - 12 - .-...- ---- --- - . --.----. -.-------.. -----. ---------- . part of the Hopkins House that is to be retained and remodeled in accordance with Conditional Use Permit No. CUP 00-4, as approved by the Hopkins City Council for the demolition and reconstruction ofthe 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. I. Liehtine Plan. (Intentionally Omitted). J. Easements. The Developer shall grant to the City permanent utility and drainage, trail, sidewalk or other easements, ifany, as may be reqtlired shown on the Plans or the Plat for the establishment, use, repair or maintenance of any of the Public Improvements. . 7. Acceptance of Ownership of Public Improvements. 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 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 c:hopcivillCondUse .Semper - 13 - . completed in accordance with the requirements of this Agreement. As a condition of its acceptance oftitle to any of the 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 Improvements by the City shall be evidenced by a resolution duly adopted by the City Council ofthe City. 8. Warranty. 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 ofIandscaping 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 reasona!lle out-of-pocket costs incurred by the City in connection 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 c:hopci villCondUse .Semper - 14- . incurred before or after the date of this Agreement, including, without limitation, traffic, development, fiscal, noise level consultants and third parties retained by the City, environmental, geotechnical, surveying, engineering, inspections or legal services. Upon request by the City and deliveIY of itemized 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 Improvements. (Intentionally Omitted) 11. Other Governmental Approvals. 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 3fl60 days ofthe date oftllis AglccnlGnt issuance ofa buildin~ennit for the Proiect and substantially complete construction of all of the Public Improvements ~ithih 180 cia,.5 of commencement of canst! uction.no later than December 31 ~ 200 1. 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. c :hopci vil\CondUse ,Semper - 15 - . 13. Compliance With Conditional Use Permit Requirements. Developer agrees that it shall complete the Public Improvements in compliance with this Agreement, the Conditional Use Permit and the provisions of the City's Code of Ordinances, including, but not limited to Hopkins City Ordinance Section 525.13. The terms, conditions and restrictions established by this Agreement 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, MiIll1esota, for its benefit only. The terms, conditions and restrictions established by this Agreement are perpetual in duration, except as may be specifically otherwise provided in this Agreement. To the extent this Agreement eX12ressly . provides for the future termination of any <2Lits terms, conditions and restrictions or Developer's obligations hereunder,- such -rhe-terms, conditions and restrictions or Developer's obliKations established by this Agreement mayshall, 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~itten re[uest for such Release from Develoner. plovided that the City sllall be under riC) obligatioh to release any of such tCtnlS, conditiohs or restrictions except that, nUpon satisfactory completion of the Public Improvementsin 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 Developds compliance with the terms of this . Agreement, payment ofthe cost of all Public Improvements and completion of construction thereof, c;hopcivil\CondUse .Semper - 16 - . Developer shall deliver to the City the following Letters of Creditj cash and/or surety bond acceptable to and in favor of the City (the IISecurity") issued by a bank. or surety reasonably acceptable to the City ~ provided the Ci~ees that a Letter of Credit issued by BNC Bank shall be acce.Qtable 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 ofthe 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 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 ofthe 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 Develo.Qer's Inspector and delivered proof of payment therefore to the . City (which latter date is herein referred to as the "Termination Date"). The Security ma}: be reduced to fifty j!ercent (50%) of its original amount immediately after the date on which Develo.Qer has c:hopcivil\CondUsc. Semper - 17 - - - . substantially completed the Public Im..Qrovements as ~ertified by Develoj;!er's Insgector and deliver Qroof 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 tenn ofthe above-reguired 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 (10j business da'ys~ such lonzer 'period of time as is necessery to cure the violation j;!rovided: i) . Develo-per is J2roceeding. with all due dilig.ence to cure the violation~ and ii) the violation is cured no later than thirty (30) days before the expiration of the Securi!y. 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. III the event the City leceives notice of or claims nom laborels, matelialmen 01 otkrs . contlibutilIg to the Public ImpIOv emmts that anj timotlnts due them have not been paid wIlen duc, c:hopcivi I\CondUse .Semper - 18 - . and ~uch labOlels, materialmch 01 otller~ are seeking paynlEnt out ofthc Sccuriry 01 intehd to a~sert dainls a~aihst the City, the rublic Improvements 01 the Real rropertj on which tile rublic l1i'lpro vc.ments have been installed, ahd if slIch clairu5 ale not fully lesolved at lea5t rlihety (90) days before tk Security will expire, Developer llereby autholiz:e~ the City to commence an Interpleader action pmsuantto Rule 22, MilmesotaRules of Civil rroecdme fot the District Courts, to draw upon the Seem it} in an amount up to 125 percent of the cIailhs and depmiit the MlIOuht 50 dr a~n \III ith the District Com1 Adrl1inistrator in compliance with said Rule 22, Mld, apOh ~uch deposit, De~c.Iopc,I shall Idease, dischroge and dismi~s tile City from any furtLel ploeeeding~ a~ it pertains to the. snms deposited with the. Distl iet Court Administratol, exeept that the Court shall Ie.taildmi5dietion to determine attmney 5' fees. Developer shall timely pay all valid claims of contractors, material sU.Qgliers and others contributinRany labor~ material or services to the construction of the Public . Im12rovements. 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 Qersons sUPl~lying labori material or services to the construction of the Public Im.n.rovements. Notwithstanding any l1rovision of this Agreement apparently to the contr~, the Cij:y may retain the Securi~ and Developer shall extend the term thereof,- until such time as Develo{!er has provided the City with evi@nce reasonably acceQtable j:o the City that all laborers, materials sup~liers and others contributing to the construction of the Public Improvements have beenp-aid~ in full. Developer's failure to so extend the Securitr at least thiID: (30) days before . its eXRiration shall be a default by Developer entitling the Ci!y to draw u{!on or retain the full amount of the Security. In addition, the CiIT shalt be entitled to retain and draw uQon the Securi!y in the c: hopcivillCondU so .Semper - 19 - . event Develoner fails to prote.ft, indemnify: and hold the_~ its agents, representatives and emQloyees harmless from costs-" ~ities~ including reasonable at~mey's fees and Court costs, as l1rovid~d above. 15. Enforcement of Agreement. 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 tenns, 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 ofthis 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 c:hopcivil\CondU sc .Semper - 20- . 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 ofthe 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 ofthe 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: ScmpCI DGveIopmcnt Ltd. Attention. GOO [.o~hay TOWCl 821 Marquette A "c=.nuc Miml(,apolis, ~iN 55402 WfU1].Y..~~tm~!1.ts _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 . c :hopcivillCondUseSemper - 21 - . 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. 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. Headings. The headings and captions at the begilUlings of paragraphs of this Agreement are for convenience of reference only and shall not influence its construction. 19. Execution of Counterparts. 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 MilUlesota. 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. . c: hnpcivil\C nodUse. Semper - 22- . IN WITNESS WHEREOF, Developer has executed this Agreement as of the date and year first above written. SEMPER DEVELOPMENT LTD. WH INVESTMENTS LLC By Its STATE OF ) )SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2000, by , the , ofSempc.r Dnclopmcnt Ltd., a GOlporation W H Investments LLC~a DelaWN.!dim@.Qj!ability com12an;y under the laws of , on behalf of the corpol1rtion company. . Notary Public THIS INSTRUMENT WAS DRAFTED BY: Miller, Steiner & Curtiss, P.A. 400 Wells Fargo Bank Building 1011 First Street South Hopkins, Minnesota 55343 . c: hopci vil\CondU se. Semper - 23 - . EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY Lot 1, Block 1, and Outlot A, Maggies Addition, according to the recorded plat thereof. . . c:hopcivilICondUse.Semper - 24- . EXHIBIT B PUBLIC IMPROVEMENTS Intentionally left blank . . c:hopci villCondU se .semper - 25- Hennep!D_CQ!lnty Nancy S. ADderscm. Planner September 28, 2000 City orHopkiu 1010 Pint _ South HopIcina. IAN .5.5345-7.573 Roe: Proposed Walgrecms Itcdevelopmcmt TH-7 / CSAH-73 - Northeast Quadnnt Review of Preliminary Plat (County Review No. 2542) Dear Ms. ADdenon: This prelimiauy plat review is pcrfonned in accordance with Minnesota Statutes 505.02 and 50S.03, Plats and Surveys. and MS 462.358, County Review of Plats. Besides the plat itself; this review is based on preliminary information 1bat was transmitted in AUJUSt by Landform Engineering, and the July 18dl traffic study performed by Benshoof Associates that WIUi forwarded to the county by Jim Kerrigan. Future improvements of CSAH.73 are being considered in this area. and SRF Consultina Group hu prepued a proposed concept layout for the City of Minnetonlm. A meeting was recently held on September IS" with Hopkins. Minnetonka, MnIDOT and Hennepin County to consider this proposed improvement concept. Mn!DOT is planning ~ uppdinS TH-7 next year to improve the medians, turn lanes, and to remove some direct accesses similar to their ent improvements to the west on TH-7 in Minnetonka. ; , I Our primary comments concern the proposed access from this site to CSAH.73 and the need for edditionaJ right-of- way dedicatiCID to accommodate the proposed roadway improvements. . M you are aware. Hermepin County is responsib~e far the issuance of entrance permirs tor access to CSAH-73. The proposed Walgreens redevelopment proposes the closure of the TH-7 fron1age told ,"css while retaining a nearby CSAH-73 access. It is this access which necessitates a permit from the county. As one examines the CSAH- 73 corridor between 11Ip 7 and SlJl Street North. one I'eCOsnizes the potential for conflict IS site redevelopment occurs ahd site access occW'S as proposed. Both MnIDOT and the county believe the removal of the "no right turn on red" restriction for westbound TII-7 turns to northbo1U1d CSAH-73 would help ease coniestion at and within the proximity of the iuter~tion. The proposed distance between the intersection and site access may preclude restriction removal. A second impact of site BCCesS along CSAH-73 85 proposed is the conflict which ocCurs as left turning vehicles enter and exit the site. The left turning movements will be especially difficult during the rush hours. It is with these circumstances in mind that the comty haa established access SPacinl auidelines. Not lurprisinllYi the proposed site access docs not meet the minimum JUidelines for such access. R.efcrrinl to the agency meeting of September ISlll, a MnlDOT representative indicated to the puties that 1hc introduction of the proposed Walgreens site access via CSAH-73 may be cause for it (MnID01) to . withhold significant funding from the proposed TII-7 / CSAH-73 improvements offered by SRF Consulting Group. The county Transportation Department staff considers the proposed TH.?I CSAH.73 to be of benefit to many. and the potential loss of funding from a project whose budget is alRady suspect causes county staff concern. TI.aII 11,"D~- '1 IQIO ...... DIM bqrWhpr . w.bI.lOl m4Q.SOI (617) 14S-.,. 'AX: (112) q..IQCIO TOD: (612) 1S2-6160 WhIle county staff prefers no access be provided to CSAH-73 for the reasons identified, it will issue an entrance permit with the understanding that: 1. Access will be limited to right-in / right..out. This will eliminate (or at least reduce) the left . turning conflicts into and from the site, thus improving safety along CSAH-73. 2. IfMnlDOT withholds any funding for the TH-7 I CSAHa73 intersection improvements because ofaccess. Hennepin County will not finance any portion of the withheld amount 3. The proposed TH-7/ CSAH-73 improvement is important to a number of parties. The right-af- way need along CSAH-73, as described below, is essential to the success of the improvement and future improvements. . It is recommended that an additional 17 feet of right-of-way. be dedicated to provide a SO-Coot half section in accordance with county guidelines for an urban 4-1anc divided roadway. CSAH-73 is designated as part of the COWlty bicycle system and accommodations for bicycles will need to be discussed as part of the concept layout. We are not aware if Hopkins has any pedestrian or bicycle systems defined in this area, our files do not contain an updated Comprehensive Plan nor 8 trail! sidewalk plan. . All proposed CDn.strucnon within county right-of-way requires an approved Hennepin CO\D1ty permit prior to beginning construction. This includes, but is not limited to, access, drainage and utility construction, trail development, and landscaping. The Permits Section should be con13.ctcd at (763) 145- 760 1 for the appropriate permit fonns. . The developer must restore all areas within the county right-of-way that are distUrbed during construction. . Questions rcgardina these comments can be directed to Dave Zctterstrom at (763) 745-7643 or Bob Byers (763) 745- 7633. We remind you that recent changes in state staMes MS 462.358 now requires that the city submit to the county a notice of its approval of this plat, along with a statement addressing the disposition of the comments and recommendations made in this letter. Sincerely, ~;Q.~ Jarncs~.~be,P.E. Director. Transportation Dep8rtm.ent JNG:rhb c:: Steve Stldler. HopkinI Olr. or Publi~ Works Pili J.e\rI.... Commiaoo - Byers I JolmSdQ I Un4aren I Moc I Smrtb I Zc:ttcnttom 'de TuJkkl. Hennepin Counl:)' Surveyol'l Office Paul Tobkin . HtnDIpIn ComIty PenniES OBlce Pal Cm:k - MnIDOT Pw bvlew Office . . TOTFl.. P. B3