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CR 98-099 Conditional Use Permit Agreement- Supervalue RedevelopmentSeptember 9, 1998 Proposed Action Overview O P K , r1 SUPERVALU REDEVELOPMENT PROJECT -- CONDITIONAL USE PERMIT AGREEMENT Council Report 98 -099 Staff recommends adoption of the following motion: Approve and authorize execution of a Conditional Use Permit Agreement with SuperValu, Inc. With approval of this action, this agreement will be executed. It will be understood that with this action staff is authorized to make minor changes to the agreement that do not change the overall intent. The development agreement for this project (dated July 20, 1998) describes in general the public improvements that are required to be completed by SuperValu. Section 4.4 of this agreement states "Public improvements and the process of their design and construction will be more particularly described in the Conditional Use Permit/Development Agreement to be entered into by the City and redeveloper prior to closing ...." The attached agreement, which has been prepared by the City Attorney's office, identifies in detail the specification standards that SuperValu will need to comply with in constructing these public improvements. These are specifically identified in Exhibit B of the agreement. The agreement has been prepared based on input from the Public Works department. SuperValu has also been provided a copy for their review. Failure to construct the public improvements as detailed would place SuperValu in default with both the CUP and the development agreement. Supporting Documents • Conditional Use Permit Agreement Alternatives 1. Approve the agreement as presented by staff. 2. Approve the agreement with changes. This agreement needs to be approved and executed prior to closing, which is scheduled for October 1, 1998. There are no Council meetings scheduled prior to that time; therefore, any changes would need to be detailed on the 15th, or the closing would need to be postponed until after October 6, 1998 (next regularly scheduled Council meeting). J • s D. Kefrig an Development & Econo pment Director Vesely, Miller & Steiner, P.A. Draft 10/02/98 This Conditional Use Permit Agreement (this "Agreement ") is made and executed this day of , 1998, by SUPERVALU INC., a Delaware corporation ( "SUPERVALU "), and Ryan Hopkins, LLC, a Minnesota limited liability company ( "Ryan "), in favor of and for the benefit of the City of Hopkins, Minnesota ( "City "). SUPERVALU and Ryan are hereinafter jointly and collectively referred to as "Developer ". RECITALS . Ryan 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 ". Pursuant to a Lease Agreement dated , 1998, (the "Lease ") Ryan has leased the Real Property to SUPERVALU. Upon completion of the Project (defined in Recital Paragraph B, below), or such earlier date as is specified in the Lease, Ryan may convey the Real Property to SUPERVALU. c:lfilelhopcivillconduse. sup CONDITIONAL USE PERMIT AGREEMENT B. SUPERVALU applied to the City for a Conditional Use Permit to construct and operate an office /warehouse facility and related improvements (the "Project ") on the Real Property. C. On July 7, 1998, the City Council of the City adopted its Resolution 98 -40 approving Conditional Use Permit No. CUP 98 -5 for the construction of the Project on the Real Property, subject to the terms, conditions and restrictions stated in this Agreement, Resolution 98 -40 and in Conditional Use Permit No. CUP98 -5. On October 6, 1998, the City Council of the City adopted its Resolution 98 -64 approving Conditional Use Permit No. 98 -9, which is an amendment to Conditional Use Permit No. 98 -5. Said Resolutions 98 -40 and 98 -64 are hereinafter collectively referred to as the "CUP Resolution ", and Conditional Use Permits No. 98 -5 and 98 -9 are hereinafter collectively referred to as the "Conditional Use Permit ". As a condition of such approvals, 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 restrictions, ii) to execute this Agreement, and iii) to record this Agreement as a servitude upon the title to the Real Property. NOW, THEREFORE, in consideration of the foregoing Recitals and the 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, used and developed subject to the following terms, covenants, conditions and restrictions: 1. Recitals Incorporated. The foregoing Recital Paragraphs A through C, are incorporated in and made a part of this Agreement in their entirety. 2. Public Improvements. Developer shall construct, install and pay for . all of the facilities and improvements described in Exhibit B to this Agreement, (except that the City shall c: \file\hopcivillconduse. sup 2 reimburse Developer for the cost of milling and overlay work on existing Third Street South as provided in Exhibit B hereto) which facilities and improvements are herein 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. 3. Identification of Plans. The Project shall be developed and the Public 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 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 Plan Plan A Preliminary Site Plan prepared by Planmark and Westwood Professional Services, Inc., dated June 5, 1998, as revised August 31, 1998. Plan B Preliminary Landscaping Plan prepared by Arteka Corporation and Planmark, Inc., dated August 28, 1998. c:\file hopcivillconduse.sup 3 Plan C Preliminary Grading Plan prepared by Planmark and Westwood Professional Services, Inc., dated August 31, 1998. Plan D Preliminary Utility Plan prepared by Planmark and Westwood Professional Services, Inc., dated June 5, 1998. 4. Construction Standards and Procedures. The Public 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 Planmark, a division of SUPERVALU, ( "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. Review and approval of plans and specifications for the Public Improvements shall also include at least one (1) public information meeting with neighborhood residents and property owners and final approval by the Hopkins City Council, and the design and construction schedule for the Public Improvements must allow sufficient time for public meeting(s). Developer shall retain a qualified inspector or engineer experienced in inspection and supervision of road construction ( "Developer's Inspector ") to perform site inspections of the Public Improvements during the course of construction. Developer's Inspector shall be present, on site to perform inspections at all times while construction activities on the Public Improvements are being performed. Developer shall require Developer's Inspector to cooperate with and respond to requests and questions from the City's Engineer and City Inspectors to confirm that construction of the Public Improvements is being completed in accordance with the Plans and all applicable ordinances, regulations and standards. As provided in Paragraph 7 of this Agreement, Developer or Developer's c: \file \hopcivil \conduce . sup 4 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, 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) 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. Such license shall terminate upon .final acceptance of the Public Improvements by the City in accordance with the provisions of Paragraph 7 of this Agreement. 6. Platting and Easements. Prior to the issuance of a Building Permit for the Project, Developer shall complete the following: a. Developer shall plat or replat all of the Real Property, at Developer's sole expense, in compliance with the ordinances, statutes and requirements of the City, Hennepin County, Minnesota, and the State of Minnesota. Such plat or replat shall include the c:lfileihopcivil\conduse.sup dedication to the City by Developer of the drainage and storm sewer easement described below and all additional public right -of -way area necessary to construct the public streets as shown in Plan A (the Preliminary Site Plan) including, but not limited to, the following public streets, at no cost to the City: i) Dedication of an approximately 55 foot wide public right-of-way for the west frontage road to U.S. Highway 169, in the location shown on Plan A, as the same may be revised to depict the final design of the Project. Dedication of additional public right -of -way on the south side of Third Street South sufficient in width to provide for the right turn lane shown in Plan A, plus an additional ten feet of right -of -way south of the curb line for the right turn lanes. iii) Dedication of additional public right -of -way on the north side of Fifth Street South as required for the realignment of Fifth Street South to the north, as described in Paragraph 3 of Exhibit B to this Agreement. This will require dedication of approximately seventeen (17) feet of new right -of -way north of the present right -of -way of Fifth Street South. Dedication of a 20 foot wide drainage and storm sewer easement for the existing, underground storm sewer line located in the southwest corner of the Real Property, as shown on the ALTAJACSM Survey prepared by Westwood Professional Services, Inc. The centerline of such drainage and storm sewer easement shall be established in the location of the existing underground storm sewer line. Developer shall be entitled to subsequently relocate and reconstruct said underground storm sewer line, at Developer's sole expense as a Public Improvement in compliance with the requirements of this Agreement, provided Developer shall dedicate or grant to the City a drainage and storm sewer easement 20 feet in width in the location of the relocated underground storm sewer line, whereupon the City shall vacate the 20 foot wide drainage and storm sewer easement originally dedicated to the City. b. It is intended that the City shall acquire, at the City's sole expense without reimbursement from SUPERVALU, a permanent easement for public road purposes, the area of which shall be sufficient to permit the construction of the intersection of Fifth Street South and Second Avenue South as shown in the drawing, entitled "Option 1", prepared by Westwood Professional Services, Inc., dated July 24, 1998, from the owner(s) and lienholder(s) of the property over which such easement is to be located, provided that Developer shall cause Developer's surveyors to prepare and provide to the City a legal description for such easement. The terms and conditions of such permanent road easement shall be acceptable to the City, in the City's reasonable discretion. Upon completion of acquisition of such permanent road easement, Developer shall proceed with completion of construction of those Public c:lfilelhopcivil\conduse.sup 6 c:\filelhopcivil\conduse.sup Improvements which are located within said permanent easement in accordance with the terms of this Agreement, and Developer shall not be prohibited from obtaining a building permit for the Project because the City has not yet acquired said permanent easement at the time of building permit issuance. 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 convey 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 completed in accordance with the requirements of this Agreement. As a condition of its acceptance of title 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 7 Public Improvements by the City shall be evidenced by a resolution duly adopted by the City Council of the 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 of landscaping improvements) shall be repaired or replaced by Developer at Developer's sole expense. 9. Reimbursement of Costs to City. SUPERVALU shall reimburse the City for all 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. Such out -of- pocket costs to be reimbursed by the Developer shall include, but are not limited to, all fees due to consultants retained by City, whether incurred before or after the date of this Agreement, including, without limitation, traffic, development, fiscal, environmental, geotechnical, surveying, engineering, inspections or legal services. SUPERVALU's obligation to reimburse the City for out -of- pocket costs shall be subject to all of the terms and conditions stated in Paragraphs (b) and (c) of Section 3.2 . of the Redevelopment Agreement between the Housing and Redevelopment Authority in and for the City of Hopkins and SUPERVALU, dated July 20, 1998, copies of which are attached hereto as Exhibit C and incorporated herein by reference. Notwith- standing any provision of said Redevelopment Agreement to the contrary, SUPERVALU's c: lfilelhopcivillconduse.sup 8 obligations under this Agreement to reimburse the City for all out -of- pocket costs shall survive the date of acquisition of the Real Property by SUPERVALU and/or Ryan. 10. On -Site Improvements. All storm sewer, storm water run -off and storm drainage improvements located on the Real Property shall be completed by Developer, at Developer's expense, in accordance with the Plans and all governmental requirements. The earth berm to be constructed by Developer on the north side of the Real Property, south of Third Street South, shall be constructed to a height of eight (8) feet. 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 Watershed District and any other govern- mental authorities whose approval is required for the construction of the Public 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 no later than June 1, 1999. Developer shall substantially complete construction of any public roadway improvements comprising part of the Public Improvements no later than October 15, 1999, and substantially complete construction of all of the Public Improvements no later than June 1, 2000. 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: \file\hopcivil \conduse. sup 9 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, the CUP Resolution 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, the Conditional Use Permit and the CUP Resolution shall run with the title to the Real Property and apply to and bind the Developer and each and every subsequent owner of any part of the Real Property and their respective successor and assigns, and shall operate as a covenant passing with the title to the Real Property and any part thereof. All of said terms, conditions and restrictions are imposed upon the Real Property as a servitude in favor of the City of Hopkins, Minnesota, for its benefit only. The terms, conditions and restrictions established by this Agreement are perpetual in duration, except as may be specifically otherwise provided in this Agreement. The terms, conditions and restrictions established by this Agreement may, 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, provided that the City shall be under no obligation to release any of such terms, conditions or restrictions except that, upon satisfactory completion of the Public Improvements in compliance with the requirements of this Agreement, the City shall execute and deliver to Developer a certificate, in recordable form, certifying as to Developer's compliance with the provisions of this Agreement applicable to construction of the Public Improvements. 14. Security and Claims. To guaranty Developer's compliance with the terms of this Agreement, payment of the cost of all Public Improvements and completion of construction thereof, Developer shall deliver to the City the following Letters of Credit and/or surety bond acceptable to c:\file\hopcivil\conduse.sup 10 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 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 remaining Public Improvements, other than landscaping improvements, shall be delivered to the City before commencement of construction of such Public Improvements or issuance of a permit by the City permitting commencement of such construction. The amount of such Security for the remaining 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 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 and delivered proof of payment therefore to the City (which latter date is herein referred to as the "Termination Date "). 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 c:\file\hopcivilkonduse.sup ll deliver to the City original written evidence, in form reasonably acceptable to the City, extending the term of the 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 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. If the Public Improvements are not completed on June 1, 2000, 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 pay or reimburse the City for any cost, expenses or damages recoverable under Paragraph 15 of this Agreement. The Security shall be released to Developer on the Termination Date. In the event the City receives notice of or claims from laborers, materialmen or others contributing to the Public Improvements that any amounts due them have not been paid when due, and such laborers, materialmen or others are seeking payment out of the Security or intend to assert claims against the City, the Public Improvements or the real property on which the Public Improvements have been installed, and if such claims are not fully resolved at least ninety (90) days before the Security will expire, Developer hereby authorizes the City to commence an Interpleader action pursuant to Rule 22, Minnesota Rules of Civil Procedure for the District Courts, to draw upon the Security in an amount up to 125 percent of the claims and deposit the amount so drawn with the District Court Administrator in compliance with said Rule 22, and, upon such deposit, Developer shall release, discharge and dismiss the City from any further proceedings as it pertains to the sums c: \file\hopcivil \conduse. sup 12 deposited with the District Court Administrator, except that the Court shall retain jurisdiction to determine attorneys' fees. 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. 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 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, pay or reimburse the City for the cost of completing construction of the Public Improvements. b. All 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 c: \file\hopciv it \conduse. sup 13 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. SUPERVALU and Ryan shall be jointly and severally liable for the obligations of Developer under 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 SUPERVALU or Ryan or to the City Manager of the City or when mailed by first class United States Mail, postage prepaid, addressed as follows: To SUPERVALU: SUPERVALU INC. Attention: Legal Department 11840 Valley View Road Eden Prairie, Minnesota 55344 To Ryan: To City: Ryan Hopkins LLC c/o Ryan Companies US, Inc. Attention: Timothy M. Gray 700 International Center 900 Second Avenue South Minneapolis, Minnesota 55402 -3387 City of Hopkins Attention: City Manager 1010 First Street South Hopkins, Minnesota 55343 c: \file \hopcivillconduse.sup 14 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 beginnings 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 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 Developers' Title Insurance. 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 to cause this Agreement and the Conditional Use Permit to be filed for record as a restriction against the title to the Real Property. IN WITNESS WHEREOF, Developer has executed this Agreement as of the date and year first above written. c:\file\hopcivillconduse.sup 15 Ryan Hopkins, LLC SUPERVALU INC. By By Its Its STATE OF ) )SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of 1998, by , the , of SUPERVALU INC., a corporation under the laws of Delaware, on behalf of the corporation. STATE OF ) )SS COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 1998, by , the , of Ryan Hopkins, LLC, a limited liability company under the laws of Minnesota, on behalf of the corporation. THIS INSTRUMENT WAS DRAFTED BY: Vesely, Miller & Steiner, P.A. 400 Norwest Bank Building 1011 First Street South Hopkins, Minnesota 55343 c:\ file \hopcivil \conduse.sup 1 Notary Public Notary Public PARCEL 1: All of Blocks 25, 26, 27, 28, 29, 43, 44, 45, 46, and 47 in West Minneapolis, Hennepin County, Minnesota, together with vacated Second Avenue between said Blocks 25, 26, 46, and 47, vacated Third Avenue between said Blocks 26, 27, 45, and 46, vacated Fourth Avenue between said Blocks 27, 28, 45, and 44, vacated Fifth Avenue between said Blocks 28, 29, 44, and 43, that portion of vacated Fifth Avenue and that portion of vacated Fifth Street South adjoining said Block 43, that portion of vacated Railroad Boulevard adjoining said Block 28 and 29, the vacated alleys in said Blocks 25, 26, 27, 28, 29, 43, 44, 45, 46, and 47, and vacated Fourth Street South lying between Sixth Avenue and Washington Avenue, all as shown and dedicated in the plat of West Minneapolis and which accrued thereto by reason of their vacation. Excepting therefrom that part of Lots 1, 2, 23, 24, including vacated streets and alleys adjoining said lots, Block 28, and that part of Lots 1, 2, and 18, including the vacated streets and alleys adjoining said lots Block 29, West Minneapolis, lying Northerly and Northwesterly of the following described line: Beginning at the intersection of the Northwesterly line of said Block 29 and its extension Northeasterly with a line parallel with and 66 feet south of the north line of the Northeast Quarter of Section 25, Township 117, Range 22; thence east along the last described parallel line a distance of 405.63 feet to the actual point of beginning of the line to be described; thence west along the last described course a distance of 100 feet; thence along a tangential curve to the left, said curve having a radius of 910.13 feet (delta angle 37 degrees, 07 minutes, 30 seconds) a distance of 589.72 feet to the northwesterly line of said Block 29 and there terminating. PARCEL 2: EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY All that part of the Northeast Quarter of the Northeast Quarter. of Section 25, Township 117, Range 22, Hennepin County, Minnesota lying South of the plat of West Minneapolis. c:\file \hopcivil \publicimp.sup EXHIBIT B DESCRIPTION OF PUBLIC IMPROVEMENTS Construct pedestrian ways within public rights -of -way along: 1) Fifth Street South from Sixth Avenue South to Second Avenue /Southwest Frontage Road intersection; 2) Sixth Avenue South (east side of roadway) from Fifth Avenue South/Third Street South intersection to Fifth Street South; and 3) West Frontage Road from Third Street South to Frontage Road/Second Avenue South intersection. Pedestrian ways to be ten (10) feet wide asphalt walkways except that the pedestrian way on the east side of Sixth Avenue South shall be six (6) feet in width, with a minimum of six (6) feet boulevard width between walkway and curb, except that a six (6) foot wide boulevard shall not be required on the east side of Sixth Avenue South and the west side of the west frontage road. 2. Construct west frontage road (to be named Second Avenue South) from Third Street South to intersection with existing Second Avenue South. Road to be constructed to City standards, including, but not limited to: minimum thirty -two (32) foot pavement width, B618 concrete curb and gutter, nine (9) ton design pavement strength and side slopes of 1:4 or flatter. Construct associated storm sewer system to City standards. 3. Reconstruct Fifth Street South from Sixth Avenue to the Second Avenue South intersection, including the upgrade of the Second Avenue and Fifth Street intersection and associated storm sewer system: Improvements and storm sewer are to be constructed to City standards. Reconstructed Fifth Street shall be realigned north of its current alignment in accordance with "Fifth Street Alternative D ", as shown in the Benshoof and Associates Study, dated December 29, 1997. The new road must also include a 300 foot long, eight (8) foot wide parking lane area adjacent to Buffer Park. Construction will also include boulevard improvements, including a ten (10) wide asphalt trail, berms and landscaping, and relocation of two fire hydrants. 4. Construct an auxiliary right turn lane on the south side of Third Street South between the west SUPERVALU exit at Fifth Avenue South and the western main truck entrance. Pavement construction must, at a minimum, match existing Third Street South pavement section regarding strength design and asphalt and base course thicknesses. Construction will also include a minimum six (6) inch milling crack filling and asphalt overlay of the existing Third Street South from 150 feet west of Fifth Avenue to Washington Avenue. The City of Hopkins shall reimburse SUPERVALU for the cost of the existing Third Street milling and overlay work. 5. Subject to the City's obligation to acquire an easement for road purposes as stated in Paragraph 6, b. of the CUP Agreement, reconstruction of the existing intersection of Second Avenue South and Fifth Street South. The intersection shall be constructed with geometrics substantially the same as approved by the City in Council Resolution 98 -64 approving Conditional Use Permit No. 98 -9. 6. The road crossing location for the ten (10) foot wide trail at the intersection of Fifth Street South and Second Avenue South shall be moved to the southeast to a location approved by the City, which shall be on the east side of Second Avenue South within City right -of -way. 7. New street lighting shall be installed by Developer along the new west frontage road (to be named Second Avenue South), including at the intersection with Third Street South, and at the intersection of Fifth Avenue South and Third Street South. Prior to installation of such new street lighting, Developer shall submit a lighting plan to the City showing the design of the street lights, height, type of lights and photometrics. Design and specifications for street lighting shall be subject to the approval of City staff. Developer shall also salvage and reinstall the existing street lighting along Third Street South and Fifth Street South, in locations approved by City staff. 8. Developer shall complete all landscaping work in accordance with and as shown in Plan B (the final Landscaping Plan submitted by Developer and approved by the City), and in accordance with the City's ordinances, policies and regulations. Plan B will be updated and a final landscaping plan shall be submitted by Developer, at Developer's expense, prior to building permit issuance, for approval by City staff. The final landscaping plan to be submitted by Developer shall be consistent with the final construction plans approved by the City on October 6, 1998. c: \file\hopcivii \publicimp.sup 2 EXHIBIT C (b) In consideration of the Authority's covenants and agreements set forth herein, the Redeveloper agrees that it will also pay all out -of- pocket costs incurred by the Authority or City with respect to the Authority's activities under this Agreement and the County Purchase Agreement and the City's activities in connection with the Redeveloper's development, so long as the Redeveloper approved such costs in writing prior to being incurred. The costs for which the Redeveloper shall be responsible shall include all out -of- pocket costs incurred by the Authority or City with respect to this Agreement or their activities in connection herewith, including, without limitation, all fees, whether incurred before or after the date of this Agreement, owed to traffic, development, fiscal, environmental, geotechnical and other consultants, and all reasonable attorneys' fees incurred by the Authority in connection with the negotiation and preparation of the Preliminary Agreement, the County Purchase Agreement, this Agreement, and all related documents or transactions, or in enforcing the Redeveloper's obligations under this Agreement so long as the Redeveloper approved such costs in writing prior to being incurred. All of the Authority's consultants shall be under contract with the Authority, unless the Authority and the Redeveloper otherwise agree in writing. The Authority agrees that it will not incur costs or liability for costs for the items described above without first providing the Redeveloper a copy of the proposal received from the Authority's consultant for such work. Such proposal will contain a description of such costs and the rates or fees to be charged by the parties retained by the Authority and to whom such costs will be payable. The Authority shall provide to the Redeveloper requests for payment of the costs incurred by the Authority from time to time accompanied by statements or invoices documenting such costs. Such costs shall be payable by the Redeveloper to the Authority within 21 days after request by the Authority. At the option of the Authority, the Authority may require that the Redeveloper make payments of costs incurred by the Authority directly to the persons or entities to whom such costs are owed, in which case such payments shall be made within 21 days after the Authority provides documentation of the costs to the Redeveloper. In the event that the Redeveloper has failed to approve the Authority's incurring of any costs required to be approved by the Redeveloper within ten (10) business days after the date that the Authority requests such approval, such costs shall be deemed approved by the Redeveloper. (c) Prior the date hereof and pursuant to the Preliminary Agreement, the Authority has retained the law firms of Bradley & Deike, P.A. and Vesely, Miller and Steiner, P.A. to represent the Authority in connection with this transaction. No further approval by Redeveloper shall be needed in connection with such law firms' legal representation.