IV.1. Purchase and Development Agreements with Footprint Development
CITY OF HOPKINS
HRA Report 2025-07
To: Honorable Chair and Board Members
Mike Mornson, City Manager
From: Kersten Elverum, Director of Planning & Development
Date: July 15, 2025
Subject: Purchase and Development Agreements with Footprint Development –
501/525 Mainstreet; 15 6th Ave North
_____________________________________________________________________
RECOMMENDED ACTION
MOTION TO approve Purchase and Development Agreements for 501 Mainstreet and
15 6th Avenue North and 525 Mainstreet between the Hopkins Housing and
Redevelopment Authority, the City of Hopkins and Footprint Development , LLC.
OVERVIEW
Based on developer interest and a desire to put HRA-owned land into productive use,
the City of Hopkins issued a Request for Proposals (RFP) in October 2024 for four
development sites: 102 10th Avenue North (Lot 800) and 501 Mainstreet, 525
Mainstreet and 15 6th Avenue North. Proposals were accepted through December 20,
2024. One proposal was received from Footprint Development for the Mainstreet and
15 6th Avenue North properties.
The proposal was reviewed by the City Council in a closed-door meeting on January 14.
2025. Based on City feedback, the developer adjusted the site plan to add additional
parking, and the proposal was discussed at the February 4, 2025, closed-door City
Council meeting. The proposal is for two phases; the first phase (501 Mainstreet and
15 6th Avenue North) would have approximately 38 housing units and 27 parking stalls.
It would be built to Passive House Institute of the U.S. standards, meet the City’s
Inclusionary Housing Policy and be designed to attract residents that want a car-light
lifestyle. The second phase (525 Mainstreet) would follow approximately one year after
the first phase. The second phase is planned for at least 30 housing units.
The City Council entered into a Preliminary Development Agreement (PDA). The PDA
provided the opportunity for the public to weigh in on the development proposal before
entering into a purchase agreement. The terms of the PDA included:
• Granted exclusive rights to the Developer now and for 16-24 months following
the execution of a Purchase Agreement
• Outlined a development review process that includes a concept review at the
Hopkins Planning & Zoning Commission
• Establishes a process to establish sale price
Planning & Development
Department
• Commits the City/HRA to update Phase I & II Environmental Site Assessments
and remediation cost estimates
The developer applied for and completed a Concept Review of the development plans.
This included a neighborhood meeting and presentations to both the Planning & Zoning
Commission and City Council. Generally, the project has had a favorable response
from the community with the major concern being parking.
The project proforma was reviewed by the City’s financial advisor, Stacie Kvilvang,
Ehlers. Given the constraints of the sites, the current market conditions and the higher
cost of construction to meet sustainability goals, the developer is not able to pay full
market value for the land. See attached memo from Ehlers for more detail. The
benefits of future tax base creation and the demonstration of sustainable development
practices offset the reduced land price.
Finally, the City of Hopkins applied to the MN Brownfields program and completed a
Phase I and II environmental site assessments. Given the history of 501 and 525
Mainstreet sites being gas stations in the past may mean that demolition debris or
contaminated soil may be a condition that will need remediation.
The following are the key terms of the Purchase Agreements:
o Agree to construct the minimum improvements which consist of
construction of at least 30 Phius Design Certified housing units and 27
parking stalls in phase I; and a minimum of 30 housing units in phase II,
developed on the Property at the developer’s sole expense
o Purchase price is $1 plus reimbursement for any environmental and
remediation costs the City incurs
o Conveyance conditioned upon City approval of construction plans, no
uncured Events of Default, execution of all Exhibits to the Agreements
and holding a public hearing and finding of concurrence with the City’s
Comprehensive Plan
o Agree to pay City’s cost for legal and professional services associated
with these Agreements and establish an escrow account of $5000 with the
City
o Outlines the events of default on the Agreements, including failure to
commence or complete construction, and the remedies including
termination of the Agreements.
In order to construct the minimum improvements, the developer will need to secure
separate land use approvals through the City’s site plan review process.
SUPPORTING INFORMATION
• Purchase and Development Agreement for 501 Mainstreet & 15 6th Avenue North
• Purchase and Development Agreement for 525 Mainstreet
• Memo from Ehlers
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PURCHASE AND DEVELOPMENT AGREEMENT BY AND AMONG
THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR
THE
CITY OF HOPKINS, THE CITY OF HOPKINS, MINNESOTA AND
FOOTPRINT DEVELOPMENT LLC
(501 MAINSTREET AND 15 6TH AVENUE NORTH)
THIS PURCHASE AND DEVELOPMENT AGREEMENT (the "Agreement") is made this ____
day of July, 2025, by and among the Housing and Redevelopment Authority in and for the City of
Hopkins, a Minnesota public body corporate and politic and the City of Hopkins, Minnesota, a
Minnesota municipal corporation (collectively, the “City”), and Footprint Development LLC, a
Minnesota limited liability company or its affiliated successors and assigns as permitted in this
Agreement (the “Developer”).
RECITALS
A. The City is the fee owner of certain real estate located at 15 6th Avenue North (15 6th Parcel”)
and 501 Mainstreet (“501 Parcel”) in the city of Hopkins, Hennepin County, Minnesota, which
is legally described in Exhibit A, attached hereto (the "Property").
B. The City has selected Developer as the preferred private developer for the development of the
Property and for a parcel located at 525 Mainstreet (the “525 Mainstreet Parcel”) (the
“Development Project”). Attached hereto as Exhibit B is Developer’s concept site plan for the
Development Project (the “Concept Plan”), which was presented by Developer for preliminary
review by the City Planning and Zoning Commission and City Council consistent with the
City’s Development Review Process.
C. The 15 6th Parcel, 501 Parcel and 525 Parcel shall be collectively referred to as the
“Development Site” which is to be developed consistent with the Concept Plan.
D. The parties negotiated this Agreement pursuant to which City, as seller, and Developer, as
purchaser, will sell and purchase respectively the Property (for Developer’s development and
construction of the Minimum Improvements (as defined in Section 3.05 below) (independently
referenced to as (“501 Project”)).
E. The parties will contemporaneously execute a Purchase and Development Agreement for
Developer’s purchase of the 525 Parcel.
F. The parties desire to enter into this Agreement to outline the parties’ respective expectations,
rights, and obligations regarding the Developer’s construction of the Minimum Improvements
on the Property.
G. The sale of the Property in accordance with the terms of this Agreement based on the
Developer’s express agreement to carry out the terms of this Agreement.
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Agreement
In consideration of each party's promises as set forth in this Agreement, it is mutually agreed as
follows:
ARTICLE ONE
REPRESENTATIONS AND WARRANTIES
1.01. City's Representations and Warranties. The City makes the following representations as the
basis for the undertakings on its part contained herein:
A. The City includes the City of Hopkins, Minnesota, a municipal corporation under the
laws of Minnesota, and the Housing and Redevelopment Authority in and for the City
of Hopkins, a Minnesota public body corporate and politic (the “HRA”).
B. The City is the fee owner of the Property.
C. The City has the right, power and authority to execute, deliver and perform its
obligations under this Agreement.
1.02. Developer's Representations and Warranties. The Developer makes the following
representations as the basis for the undertakings on its part contained herein:
A. The Developer is a domestic limited liability company formed under the laws of the
state of Minnesota.
B. The Developer has the right, power and authority to execute, deliver and perform its
obligations under this Agreement. The Developer assures the City that the individual
who executes this Agreement on behalf of the Developer is duly authorized to sign on
behalf of the Developer and to bind the Developer thereto.
C. The Developer is not in default under any lease, contract, or agreement to which it is a
party or by which it is bound, which would materially adversely affect its performance
under this Agreement.
D. The Developer has complied with and will continue to comply with all applicable
federal, state and local statutes, laws, ordinances and regulations including, without
limitation, any permits, licenses and applicable zoning, environmental, or other laws,
ordinances, or regulations affecting the Property. The Developer has not received
notice of any pending or threatened claim of any such violation. Without limitation of
the foregoing, the Developer expressly acknowledges and agrees that it shall comply
with all applicable City subdivision, zoning, and other related municipal code
regulations.
E. There is no suit, action, arbitration or legal, administrative or other proceeding or
governmental investigation pending or threatened against or affecting the Developer.
The Developer is not in default with respect to any order, writ, injunction or decree of
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any federal, state, local or foreign court, department, agency or instrumentality.
F. None of the representations and warranties made by the Developer or made in any
exhibit hereto or memorandum or writing furnished or to be furnished by the Developer
or on its behalf contains or will contain any untrue statement of material fact or omits
any material fact, the omission of which would be materially misleading.
G. Before closing, Developer will have sufficient funds or will obtain a commitment for
financing in an amount adequate to finance construction of the Development Project
and other work that may be undertaken by the Developer in conjunction with said
improvements.
1.03. Incorporation of Recitals and Exhibits. The Recitals set forth in the preamble to this
Agreement and the Exhibits attached to this Agreement are incorporated into this Agreement as
if fully set forth herein.
ARTICLE TWO
CONSTRUCTION OF IMPROVEMENTS
2.01. Public Improvements. The Developer shall not be responsible for any public improvements
(the “Public Improvements”) associated with the Property, unless any work they undertake
requires modifications to improvements already in place.
A. Stormwater Management Facilities. The Developer shall be responsible for one
hundred percent (100%) of the cost to install and provide private stormwater
management facilities (the “Facilities”) on the Property . The Developer shall be
responsible for the connection of its Facilities into the public storm sewer and/or
the regional system at the location(s) and in such a manner as approved by the City
Engineer. Developer shall be responsible for the costs of any temporary
connections to the public storm sewer.
B. Property Monumentation. The City agrees to verify that the statutorily required
property monumentation has been installed by or under the direction of a registered
land surveyor, and if any has not been installed, shall be responsible for its
completion prior to the sale of the Property.
2.02. Developer’s Improvements. The Developer agrees that it will construct the Minimum
Improvements on the Property, as defined in Section 3.05, and all elements associated therewith
on the Property in accordance with all plans and specifications submitted by Developer and
approved by the City that are required for Developer’s construction of the Minimum Improvements
(the “Construction Plans”). The general site layout and renderings depicting the Development
Project are attached to this Agreement as Exhibit B. The Developer acknowledges that, in addition
to the requirements of this Agreement, construction of the Minimum Improvements will
necessitate compliance with other reviews and approvals by the City and possibly other
governmental agencies and, to the extent such approvals have not already been obtained, agrees to
submit all applications for and shall use commercially reasonable efforts to pursue to their
conclusion all other approvals needed prior to constructing the Minimum Improvements. The
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Developer shall not be responsible for any Public Improvements located outside of the Property,
other than as provided in 2.02.D. below.
The Developer shall be responsible at the Developer’s sole expense for the following:
A. Minimum Improvements. The Developer shall be responsible for the cost (including
permitting and associated fees) to construct the Minimum Improvements, as defined in
Section 3.05.
B. Site Grading. The Developer shall be responsible for the grading of the Property and
submittal of a grading plan to the City Engineer for approval. No significant deviations
from the approved grading plan, as determined by the City Engineer, shall occur
without the approval of the City Engineer. At the completion of final grading, the
Developer shall provide as-built drawings of the final grading, if required by applicable
City ordinances.
C. Site Improvements. The Developer shall construct various site work improvements,
including, but not limited to, parking lots, sidewalks, lighting, signage, plantings,
fencing, and landscaping pursuant to the Construction Plans. All work shall comply
with applicable City ordinances and regulations and shall be subject to review and
approval by the City, pursuant to such ordinances and regulations.
D. Utility Services. The Developer shall be responsible for one hundred percent (100%)
of the cost (including permitting and road restoration costs) to extend water, sanitary
sewer, and storm sewer services from the street to and within the Property as well as
abandoning any existing utilities and/or services not needed for the Project as approved
by the City Engineer, if necessary.
E. Sodding and Landscaping. The Developer will be responsible for sodding or seeding
the Property and the disturbed right-of-way areas that are not paved and all other
disturbed turf areas, as required by applicable City ordinances and regulations.
F. Storm Water Pollution Prevention Plan (SWPPP). The Developer shall be responsible
for erosion and sediment control throughout the work at the Property. Developers plans
shall include any requisite SWPPP prepared in accordance with and meeting the
requirements of the Minnesota Pollution Control Agency (MPCA) National Pollutant
Discharge Elimination System (NPDES) General Stormwater Permit for Construction
Activity requirement and the City's Municipal Separate Storm Sewer System (MS4)
permit.
The Developer shall address failed erosion control structures or apparent need for additional
erosion control measures within twenty-four (24) hours after written notification by the City. If
the Developer fails to perform the requested corrections in the period dictated by the City, the
Developer hereby grants the City consent to enter onto the Property to perform the corrective work.
The Developer will reimburse the City for all erosion control work performed on its behalf. The
Developer shall inspect and if necessary clean all catch basins, sumps, and swale areas of
erosion/siltation and restore to the original condition at the end of construction within the Property.
All silt fence and other erosion control should be removed following the establishment of turf.
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G. Street and Sidewalk Maintenance. The Developer shall be responsible for providing
street and sidewalk maintenance as required that is attributable to the construction of
the Minimum Improvements, including sweeping of debris and soil, until the
development is complete. Warning signs shall be placed when hazards develop in the
streets or along the sidewalks.
H. Damage Responsibilities. The Developer shall be financially responsible for the repair
of any damage done to the existing and proposed public streets, utilities, and trails
directly related to the construction of the Minimum Improvements, from the time of
installation until the development is fully completed and approved by the City.
I. Property Monumentation. The Developer, and any contractors, subcontractors,
consultants, etc. performing work or providing services on behalf of the Developer,
shall be responsible for protection of all permanent subdivision monumentation before
the City's issuance of the final Certificate of Occupancy. Disturbed or damaged
monumentation shall be replaced by a licensed land surveyor at the Developer's
expense.
J. Underground Utilities. In accordance with the Hopkins City Code of Ordinances, all
utilities that serve newly developing areas are to be placed underground, unless
overhead utilities are required based on a determination by the City Engineer. The
Developer acknowledges that it shall be responsible for the relocation of overhead
distribution lines serving the Property at the Developer's sole expense.
K. Other Governmental Jurisdictions. The Developer shall be responsible for securing all
necessary approvals and permits from all appropriate federal, state, regional, and local
jurisdictions prior to the commencement of site grading or construction, and shall
provide copies of all required permits to the City prior to beginning any work covered
under the respective permit.
2.03. Security Requirements for Temporary Certificate of Occupancy. Should the Developer
request a Temporary Certificate of Occupancy for the 501 Project prior to the completion off all
of the Minimum Improvements (including, but not limited to, parking lots, sidewalks, lighting, and
landscaping) the Developer will furnish to, and at all times thereafter maintain with the City a cash
escrow, certified check, performance bond or irrevocable letter of credit (hereinafter, collectively
known as the "Security"), based on one hundred percent (100%) of the total estimated cost of all
of the incomplete work. Such Security shall be subject to approval of the City Attorney.
Such Security shall be for the exclusive use and benefit of the City and shall state thereon that the
same is issued to guarantee and assure that the Developer completes construction of such
incomplete required improvements in accordance with the Construction Plans. Following at least
thirty (30) days written notice to Developer, if Developer does not complete the incomplete
improvements within said thirty (30) days period, the City reserves the right to draw, in whole or
in part, on any portion of the Security for the purpose of guaranteeing completion of any
incomplete improvements until all improvements are completed. The Security shall be renewed
or replaced by not later than thirty (30) days prior to its expiration with a like Security.
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The Developer may request reduction of the Security based on prepayment or the value of the
completed improvements at the time of the requested reduction. If requested, the City will perform
an evaluation of the work completed without charge to the Developer only once per month based
on monthly payments to contractors. If additional evaluations are requested, the Developer will
be responsible for the estimated costs incurred by the City for performing the additional
evaluations. The amount of reduction will be determined by the City.
ARTICLE THREE
CONVEYANCE PROVISIONS
3.01. Purchase Price; Provisions for Payment. The purchase price to be paid to the City by the
Developer in exchange for the conveyance of the Property is One and No/100 Dollar ($1.00).
The purchase price shall be payable by the delivery of cash or other funds of the Developer in
the amount of One and No/100 Dollar ($1.00). In addition to the consideration set forth herein,
the Developer shall pay to the City any and all costs associated with the City’s environmental
and remediation costs associated with the Property and the Development Project.
3.02. Conditions of Conveyance. The City shall convey title to and possession of the Property to
the Developer by a quit claim deed substantially in the form of the deed attached hereto as
Exhibit C. The City's obligation to convey the Property to the Developer is subject to the
satisfaction of the following terms and conditions:
A. The City having approved the Construction Plans;
B. There existing no uncured Events of Default under this Agreement;
C. The execution and delivery of copies of all of the Exhibits attached hereto;
D. The City having held a public hearing authorizing the conveyance of the Property
pursuant to Minnesota Statute; and
E. The City through its Planning and Zoning Commission finds the land disposal to be
in compliance with the Comprehensive municipal plan pursuant with Minnesota
Statutes Section 462.356, subd. 2.
These conditions are solely for the benefit of the City and may be waived by the City. All
conditions must be satisfied or waived on or before the Closing, as defined herein. If any
such conditions have not been satisfied or waived not less than fifteen (15) days prior to the
Closing, then this Agreement may be terminated by either party, by written notice delivered
to the other. Waiver of any condition must be in writing and delivered to the non-waiving
party.
The closing on conveyance of the Property from the City to the Developer shall
occur upon satisfaction of the conditions specified herein, but not later than September 30,
2026, or at such date as the parties hereto may agree in writing (the "Closing"). The Closing
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shall occur at City Hall, unless the parties agree, in writing, to an alternative closing location.
The deed required hereunder, and all other documents, shall be in recordable form,
and shall be promptly recorded in the proper office for recordation of deeds and other
instruments pertaining to the Property. At closing, the Developer shall pay:
A. The recording costs for the deed (excluding state deed tax) and costs
associated with any additional recordable documents;
B. Title insurance commitment fees and premiums, if any; and
C. Title company closing fees, if any.
At Closing, the City shall pay the following costs:
A. State deed tax; and
B. Costs of recording any instruments used to clear title encumbrances; and
C. Outstanding taxes and assessments, if any.
3.03. As-is Condition. The Developer acknowledges that the City makes no representations or
warranties as to the condition of the soils or other environmental conditions on the Property
or its fitness for construction of any improvements thereupon or any other purpose for which
the Developer may make use of such property and further acknowledges and agrees that the
Property shall be conveyed as is. THE DEVELOPER ACKNOWLEDGES THAT THE
DEVELOPER IS PURCHASING THE PROPERTY IN RELIANCE ON THE
DEVELOPER' S INSPECTION OF THE PROPERTY PURSUANT TO THIS
AGREEMENT AND ON THE DEVELOPER'S JUDGEMENT REGARDING THE
SUFFICIENCY OF SUCH INSPECTIONS. THE DEVELOPER IS NOT RELYING ON
ANY WRITTEN OR ORAL REPRESENTATION, WARRANTIES, OR STATEMENTS
THAT THE CITY OF THE CITY' S AGENTS HAVE MADE. SUBJECT TO THE
DEVELOPER'S RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO THE
TERMS HEREIN, THE DEVELOPER IS PURCHASING THE PROPERTY IN "AS IS "
CONDITION. The Developer further agrees that, after Closing, it will indemnify, defend,
and hold harmless the City, and its governing body members, officers, and employees, from
any claims or actions arising out of the presence, if any, of hazardous wastes or pollutants on
the Property.
3.04. No Business Subsidy. The City and Developer hereby acknowledge that the assistance
being provided by this Agreement, if any, constitute assistance for housing, and therefore do
not constitute a business subsidy according to Minnesota Statutes, section 1161.993 , subd. 3,
para. (7).
3.05. 501 Project. The 501 Project to be developed at the Property by the Developer shall consist
of the construction of at least 30 Phius Design Certified housing units and 27 parking stalls
developed on the Property (the "Minimum Improvements"). The general layout plan for the
Minimum Improvements is as depicted in Exhibit B of this Agreement. The Construction
Plans will be the definitive document regarding the Minimum Improvements construction on
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the Property.
3.06. Developer’s Conditions.
A. The City shall convey marketable title to and possession of the Property to the
Developer under a quit claim deed, as set forth above. The conveyance of title
pursuant to the quit claim deed shall be subject to all of the conditions, covenants,
restrictions and limitations imposed by this Agreement.
The Developer shall obtain a commitment for an Owner's Title Insurance
Policy issued by Land Title, 2200 County Road C West, Suite 2205, Roseville, MN
55113 (the “Title Company”), naming Developer as the proposed owner-insured of
the Property in the amount of the Purchase Price (the “Commitment”). The
Commitment shall have a current date as its effective date and shall commit to insure
marketable title in Developer, free and clear of all mechanics' lien claims,
unrecorded interests, rights of parties in possession or other standard title exceptions,
including the deletion of the survey exception should Developer obtain the Survey
(as such term is defined herein). The Commitment shall set forth all levied real
estate and special assessments. Said Commitment shall have attached copies of all
instruments of record which create any easements or restrictions which are referred
to in Schedule B of the title commitment. The Developer will be allowed twenty
(20) days after receipt of the Commitment to make an examination thereof and to
make any objections to the marketability of the title to Property, said objections to
be made by written notice to the City, or shall be deemed waived, and shall be
included in the quit claim deed as a permitted encumbrance.
If the title to the Property, as evidenced by the Commitment and any survey
that the Developer obtains for the Property (at its sole cost and expense) (the
“Survey”), together with any appropriate endorsements, does not evidence good
and marketable title of record in the City and is not made so by the Date of Closing,
Developer may, as its sole recourse, either:
i. Terminate this Agreement by giving written notice to the City in which
event this Agreement shall become null and void and neither party shall
have any further rights or obligations; or
ii. Elect to accept the title in its then-existing condition by giving written notice
to the City, and proceed to Closing, with no reduction in the Purchase Price.
B. Developer shall determine, in Developer’s sole and absolute discretion, at
Developer’s sole cost and expense, that Developer is satisfied with the results of all
soil tests, well tests, building engineering inspections, environmental testing and
other testing and due diligence Developer elects to complete in its sole and absolute
discretion.
C. Developer shall have obtained, at Developer’s expense, all requisite third party
approvals, including any and all governmental approvals (including, without
limitation, zoning and land use and approval of the Construction Plans), in form
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and substance in Developer’s sole and absolute discretion, to allow Developer to
construct and operating the Project.
D. Developer has received final approval of all financing Developer requires, in its
sole and absolute discretion, to complete the Minimum Improvements.
E. These conditions are solely for the benefit of the Developer and may be waived by
the Developer. All conditions must be satisfied or waived on or before the Closing,
as defined herein. If any such conditions have not been satisfied or waived not less
than fifteen (15) days prior to the Closing, then this Agreement may be terminated
by either party, by written notice delivered to the other. Waiver of any condition
must be in writing and delivered to the non-waiving party.
ARTICLE FOUR
ADDITIONAL PROVISIONS
4.01. Platting Requirements. The Property has already been platted.
A. Easements. The Developer shall provide all easements as required by City Code and
as directed by the City Engineer.
B. Parkland Dedication. Parkland Dedication or payment in lieu of dedication will not
be required to be made by Developer, consistent with the conditions and requirements
contained in the Hopkins City Code, State statutes, and this Agreement.
4.02. Parking and Storage During Construction. The Developer agrees to provide adequate
parking and storage area for workers, equipment, construction materials, or other items
associated with the construction of the Minimum Improvements. The Developer shall be
responsible for clean-up and restoration of any property related to their use. The Developer
shall submit a plan to the City that adequately depicts and defines contractor parking and all
construction staging areas. All construction staging areas shall be further delineated on site
with appropriate construction fencing.
4.03. City's Access. The Developer hereby grants the City, its agents, employees, officials and
contractors a non-revocable license to enter the Property following reasonable notice to
Developer to perform all work and inspections deemed appropriate by the City related to
the Development Project and the Property.
4.04. Attorney Fees. If either party shall bring suit against the other to enforce the terms of this
Agreement, the losing party shall pay to the prevailing party the prevailing party’s costs and
expenses (including, without limitation, reasonable attorneys’ fees and costs) incurred in
enforcing performance of this Agreement.
4.05. Amendment. Any amendment to this Agreement must be in writing and signed by both
parties.
4.06. Assignment. Prior to the issuance of a Certificate of Completion (as defined below), the
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Developer may not assign any of its obligations under this Agreement without the prior
written consent of the City, except to an affiliate of Developer formed to complete the
Minimum Improvements.
4.07. Agreement to Run with Land. This Agreement shall be recorded among the land records
of Hennepin County, Minnesota. The provisions of this Agreement shall run with the
Property and be binding upon the Developer and its assigns or successors in interest.
Notwithstanding the foregoing, no conveyance of the Property or any part thereof shall
relieve the Developer of its liability for full performance of this Agreement unless the City
expressly so releases the Developer in writing.
4.08. Representatives Not Individually Liable. No official, agent or employee of the City shall
be personally liable to the Developer, or any successor in interest, in the event of any default
or breach by the City on any obligation or term of this Agreement.
4.09. Notices and Demands. Any notice, demand, or other communication under this Agreement
by either party to the other shall be sufficiently given or delivered if it is dispatched by
registered or certified mail, postage prepaid, return receipt requested, or delivered
personally:
A. As to the Developer: Footprint Development LLC
1017 Ashland Avenue
St. Paul, MN 55104
Attn: Cody Fischer
Email: cody@footprintdev.com
Siegel Brill, P.A.
100 Washington Avenue S, Suite 1300
Minneapolis, MN 55401
Attn: Tony Gleekel
Email: tonygleekel@siegelbrill.com
B. As to the City and HRA: City of Hopkins
1010 1st Street South Hopkins, MN 55343
Attn: Kersten Elverum
Email: kelverum@hopkinsmn.com
With a copy to: Kennedy & Graven, Chartered
Fifth Street Towers, Suite 700
150 South Fifth Street
Minneapolis, MN 55402
Attn: Scott J. Riggs
Email: sriggs@kennedy-graven.com
or at such other address with respect to either such party as that party may, from time to
time, designate in writing and forward to the other as provided in this Section 4.09.
With a copy to:
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4.10. City Ownership of Public Improvements. The Developer expressly acknowledges and
agrees that the Public Improvements and all easements and other rights in the Property
necessary and related to the City's ownership of the Public Improvements, shall inure to the
City upon the Developer's compliance with this Agreement and acceptance by the City of any
Public Improvements subdivision.
4.11. Building Permits and Occupancy Permits and Certificate of Completion and Release
of Forfeiture. The City issuance of a building permit or an occupancy permit shall be
contingent, in part, on the following:
A. Building Permit. The City shall issue no building permits until the following has
occurred to the satisfaction of the City:
• This Agreement is signed and any required security and required financial
assurances, if any, are in place;
B. Occupancy Permit. The City shall issue no occupancy permits until the following
has occurred to the satisfaction of the City:
• The site grading is completed and approved by the City;
• All utilities are tested, approved by the City, and in service;
• All curbing is installed and backfilled;
• The first lift of bituminous for any parking and access is in place and
approved by the City;
• All non-paved areas are stabilized or proper erosion control measures are in
place; and
• All building permit fees are paid in full.
The City may issue building permits prior to complete installation of utilities and grading. No
occupancy permits shall be issued until the Developer has complied with the requirements of this
Agreement and these requirements have been approved by the City, unless otherwise authorized in
writing by the City. The Developer, in executing this Agreement, assumes all liability and costs for
damage or delays, incurred by the City, in the construction of the Public Improvements, caused by
the Developer, its employees, contractors, subcontractors, materialmen or agents.
C. Certificate of Completion and Release of Forfeiture.
i. Promptly after verification of the completion of the Minimum
Improvements in accordance with the provisions of this Agreement
relating to the obligations of the Developer to construct such
improvements, the City will furnish the Developer with a Certificate of
Completion and Release of Forfeiture, in recordable form. The Certificate
of Completion and Release of Forfeiture shall be a conclusive
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determination and conclusive evidence of the satisfaction and termination
of the agreements and covenants in this Agreement with respect to the
obligations of the Developer to construct the Minimum Improvements.
The Developer shall, at its sole cost and expense, record the Certificate of
Completion and Release of Forfeiture in the property records of and for
the County.
ii. If the City shall refuse or fail to provide the Certificate of Completion and
Release of Forfeiture in accordance with the provisions of this
Section 4.11 the City shall, within ten (10) days after written request by
the Developer, provide the Developer with a written statement, indicating
in adequate detail in what respects the Developer has failed to complete
the Minimum Improvements in accordance with the provisions of this
Agreement, or is otherwise in default, and what measures or acts will be
necessary, in the opinion of the City, for the Developer to take or perform
in order to obtain a Certificate of Completion and Release of Forfeiture.
iii. The construction of the Minimum Improvements of the 501 Project shall
be eligible for review for the issuance of a Certificate of Completion and
Release of Forfeiture by the City when the City has issued a Certificate of
Occupancy for at least one (1) individual residential unit located in the
501 Project.
4.12. Ownership of Documents. The completed reports, drawings, plans, and specifications shall
become the property of the City, but reproductions of them in whole or in part may be
retained by the Developer or the Consulting Engineer/Architect.
4.13. Disclaimer of Relationships. The Developer acknowledges that nothing contained in this
Agreement nor any act by the City or the Developer shall be deemed or construed by the
Developer or by any third person to create any relationship of third-party beneficiary,
principal and agent, limited or general partner, or joint venture between the City and the
Developer.
4.14. Counterparts. This Agreement and any related documents may be executed in any number
of counterparts, each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument. Electronic signatures using a certified e-signature
via Adobe or DocuSign are acceptable for this Agreement and related documents will be
accepted with the same effect as original ink-signed “hard copy” versions of such documents.
Notwithstanding the foregoing, all documents which are to be recorded must be delivered by
the signing party as fully executed and acknowledged (and, if required by applicable law,
witnessed) “wet ink” originals.
4.15. Choice of Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the state of Minnesota. Any disputes, controversies, or claims
arising out of this Agreement shall be heard in the state or federal courts of Minnesota, and
all parties to this Agreement waive any objection to the jurisdiction of these courts, whether
based on convenience or otherwise.
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4.16. Indemnification. Notwithstanding anything to the contrary in this Agreement, the City, its
officials, agents, and employees shall not be liable or responsible in any manner to the
Developer, Developer's successors or assigns, the Developer's contractors or subcontractors,
material suppliers, laborers, or to any other person or persons for any claim, demand, damage,
or cause of action of any kind or character arising out of or by reason of the execution of this
Agreement or the performance and completion of this Agreement and any Public
Improvements. The Developer, and the Developer's successors or assigns, agree to protect,
defend and hold the City, and its officials, agents, and employees, harmless from all such
claims, demands, damages, and causes of action and the costs, disbursements, and expenses
of defending the same, including, but not limited to, attorneys' fees, consulting engineering
services, and other technical, administrative or professional assistance, except as arising out
of the gross negligence or willful misconduct of such parties. Nothing in this Agreement shall
constitute a waiver or limitation of any immunity or limitation on liability to which the City
is entitled under Minnesota Statutes, Chapter 466, or otherwise.
4.17. RESERVED.
4.18. RESERVED.
4.19. Compliance with Existing Laws. The Developer warrants that all work performed
pursuant to this Agreement shall be in compliance with existing laws, ordinances, pertinent
regulations, standards, and specifications of the City.
4.20. Miscellaneous Provisions.
A. The Developer represents to the City that the 501 Project and the development of the
Property and the subdivision comply with all city, county, state and federal laws and
regulations including, but not limited to the following: subdivision ordinances,
zoning ordinances and environmental regulations. If the City determines that the
subdivision, the 501 Project or the development of the Property does not comply, the
City may, at its option, refuse to allow construction or development work on the
Property until the Developer does comply. Upon the City's demand, the Developer
shall cease work until there is compliance.
B. Third parties shall have no recourse against the City under this Agreement.
C. An Event of Default by the Developer shall be grounds for denial of building permits,
including lots sold to third parties.
D. Wherever possible, each provision of this Agreement and each related document shall
be interpreted so that it is valid under applicable law. If any provision of this
Agreement or any related document is to any extent found invalid by a court or other
governmental entity of competent jurisdiction, that provision shall be ineffective only
to the extent of such invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement or any other related document.
E. No failure by any party to insist upon the strict performance of any covenant, duty,
agreement, or condition of this Agreement or to exercise any right or remedy
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consequent upon a breach thereof, shall constitute a waiver of any such breach of any
other covenant, agreement, term, or condition, nor does it imply that such covenant,
agreement, term or condition may be waived again. The action or inaction of the City
shall not constitute a waiver or amendment to the provisions of this Agreement. To
be binding, amendments or waivers shall be in writing and signed by the parties. The
City's failure to promptly take legal action to enforce this Agreement shall not be a
waiver or release.
F. Each right, power or remedy herein conferred upon the City is cumulative and in
addition to every other right, power or remedy, express or implied, now or hereafter
arising, available to the City, at law or in equity, or under any other agreement, and
each and ever y right, power and remedy herein set forth or otherwise so existing may
be exercised from time to time as often and in such order as may be deemed expedient
by the City and shall not be a waiver of the right to exercise at any time thereafter any
other right, power, or remedy .
G. This Agreement, together with the exhibits hereto, which are incorporated by
reference, constitutes the complete and exclusive statement of all mutual
understandings between the parties with respect to this Agreement, superseding all
prior or contemporaneous proposals, communications, and understandings, whether
oral or written, pertaining to the subject matter of this Agreement.
H. No official, agent or employee of the City shall be personally liable to Developer, or
any successor in interest, in the event of any default or breach by the City on any
obligation or term of this Agreement.
I. Data provided to the Developer or received from the Developer under this Agreement
shall be administered in accordance with the Minnesota Government Data Practices
Act, Minnesota Statutes, Chapter 13.
J. Unavoidable Delays means delays in the performance of a party’s obligations
herein, which delays are outside the reasonable control of the party claiming its
occurrence, to extent such actual delays are a result of (i) unusually severe or
prolonged bad weather, (ii) acts of God, acts of war, civil unrest, terrorism, criminal
conduct of third parties, fire or other casualty to the Minimum Improvements,
(iii) litigation commenced by third parties, (iv) actions or inactions of any federal,
State, or local government unit which directly result in delays, including, but not
limited to, a declared emergency under Minnesota Statutes, Chapter 12 or due to
pandemic or quarantine restrictions imposed by applicable Law, (v) strikes, or other
labor trouble, industry-wide material shortages and delays in delivery, labor
shortages; (vi) concealed or unknown site conditions not revealed and not
reasonably anticipated prior to the date of this Agreement; (vii) pandemic and
outbreaks of Covid-19 and variants thereof; (viii) delays in the delivery of materials
for the Minimum Improvements; and/or (ix) other events beyond the party’s
reasonable control which the party claiming delay.
K. An amendment to this Agreement must be in writing and will not be effective until
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it has been approved and executed by the parties. A party to this Agreement may
not assign or transfer any right or obligation hereunder without an assignment
agreement executed by the parties and the assignee.
L. The provisions of this Agreement concerning Indemnification, Compliance with
Laws, Compliance with the Minnesota Government Data Practices Act, Audit,
Choice of Law and Venue shall survive the expiration or termination of this
Agreement.
M. The provisions of this Agreement shall be severable. If any portion of this Agreement
is, for any reason, held by a court of competent jurisdiction to be contrary to law,
such decision shall not affect the remaining provisions of the Agreement.
N. Any waiver by any party of a breach of any provision of this Agreement shall not
affect, in any respect, the validity of the remainder of this Agreement.
4.21. Miscellaneous Conditions and Additional Requirements. The Developer shall satisfy,
complete and abide by all requirements set forth in the Authorizing Resolution and all
adopted City ordinances (as consistently applied) and resolutions affecting the Property, all
of which are incorporated herein by reference as if fully set forth in this Agreement. The
Developer shall adequately address non-compliance with the Authorizing Resolution, City
Ordinances and Resolutions as may be directed by the City Attorney, the City Engineer or
others with review and approval authority for the City.
4.22. Title Work Clean-up. The parties to this Agreement acknowledge that various potential
clean-up issues associated with the title work for the Property may need to occur. The City
agrees to undertake and endeavor to resolve such issues as may be identified in title work for
the Property. The City and Developer agree to cooperate with each other and their
representatives regarding any reasonable requests made subsequent to the execution of this
Agreement to revise or correct any errors in the title work for the Property and to provide any
and all additional documentation deemed necessary by either party to effectuate such revisions
or corrections to the title work for the Property.
4.23. Other Development Agreements. Any other development agreements including the
Preliminary Development Agreement, affecting the Property are incorporated herein by
reference as necessary as if fully set forth herein. In the case of any inconsistencies between
such development agreements and this Agreement, the language of this Agreement shall
control.
4.24. Estoppel Certificate. Each party, respectively, agrees that at any time and from time to time
within ten (10) business days after receipt of a written request by the other party, to execute,
acknowledge and deliver to such party a statement in writing certifying: (a) that this
Agreement is unmodified and in full force and effect or, if there have been modifications, that
the same are in full force and effect as modified and identifying the modifications; (b) that no
party is in default under any provisions of this Agreement or, if there has been a default, the
nature of such default; (c) that all work to be performed, under this Agreement or any related
agreement has been performed or, if not so performed, specifying the work to be performed;
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and (d) as to any other matter that the requesting party or a prospective mortgagee or other
lender shall reasonably request. It is intended that any such statement may be relied upon by
any person, prospective mortgagee of, or assignee of any mortgage, upon such interest. Any
such statement on behalf of the City may be executed by the City Manager without City
Council approval.
4.25. RESERVED.
4.26. Escrow/Payment of City Costs. The Developer must reimburse the City for its actual costs
as follows:
A. Developer’s Escrow to Process the Development Project. The Developer shall
provide the City with a $5,000.00 cash escrow to reimburse the City for its actual
costs regarding the following:
1. The preparation and administration of this Agreement and related
agreements, the 501 Project, and other related documents, permits, and
applications associated with the Project; and
2. Reasonable technical and professional assistance (including but not limited
to the cost of City staff time; but excluding any staff time associated with the
preparation or assistance with any grant applications and any attorneys’ fees
incurred in the negotiation of this Agreement) incurred or expended by the City
on activities arising out of this Agreement and related undertakings.
B. Replenishment and Return of the Developer’s Escrow. Within ten (10) days of
demand by the City, the Developer must pay all City costs that exceed the amount
of the established escrow. The City will return all remaining escrow to the
Developer after the Project’s completion and after the Developer has paid all
required City costs and expenses per this Agreement.
C. Remedy to Recover the City’s Costs. If the City does not recover its costs under the
provisions of this Agreement, the City may assess the Property in the manner
provided by Minnesota Statutes, Chapter 429. The Developer consents to the levy
of such special assessments without notice or hearing and waives its rights to appeal
such assessments under Minnesota Statutes, Section 429.081. The amount levied,
together with the funds deposited with the City under this Agreement, must not
exceed the expenses incurred by the City in the completion of the Public
Improvements. Further, the City may recover incurred City expenses through
service charges, per Minnesota Statutes, Section 415.01, 366.011, and
366.012. Finally, the Developer agrees all such unpaid amounts constitute charges
for governmental services that the City may, at its option, collect as a first-in-priority
lien on any unsold lots and on any other property the Developer may own in the state
pursuant to Minnesota Statutes, section 514.67.
D. Survivability of Payment of the City’s Costs. This Section survives termination of
this Agreement and binds the Developer, regardless of the enforceability of other
provisions of this Agreement.
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ARTICLE V
EVENTS OF DEFAULT
5.01. Events of Default Defined. Each and every one of the following shall be an Event of Default
under this Agreement:
A. Failure by the City or the Developer to proceed to closing on the Development
Property after compliance with or the occurrence of all conditions precedent to
closing;
B. Failure by the Developer to commence and complete construction of the Minimum
Improvements within eighteen (18) months following the Closing, pursuant to the
terms, conditions and limitations of this Agreement, including the timing thereof,
unless such failure is caused by an Unavoidable Delay;
C. Failure by the Developer to pay real estate taxes or special assessments on the
Development Property and Minimum Improvements as they become due;
D. Use by the Developer or others of the Minimum Improvements for purposes other
than those contemplated and permitted by this Agreement.
E. Transfer or Sale of the Development Property or the Minimum Improvements or any
part thereof by the Developer in violation of this Agreement and without the prior
written permission by the City;
F. If the Developer shall file a petition in bankruptcy, or shall make an assignment for
the benefit of its creditors or shall consent to the appointment of a receiver; or
G. Failure by either party to observe or perform any material covenant, condition,
obligation or agreement on its part to be observed or performed under this Agreement.
5.02. Remedies on Default. Whenever any Event of Default referred to in Section 5.1 of this
Agreement occurs, the non-defaulting party may take any one or more of the following actions
after providing 30 days written notice to the defaulting party of the Event of Default, but only
if the Event of Default has not been cured within said thirty days or, if the Event of Default is
by its nature incurable within 30 days, the defaulting party does not provide assurances to the
non-defaulting party reasonably satisfactory to the non-defaulting party that the Event of
Default will be cured and will be cured as soon as reasonably possible:
A. Suspend its performance under this Agreement, including refusing to close on the
Development Property, until it receives assurances from the defaulting party, deemed
adequate by the non-defaulting party, that the defaulting party will cure its default and
continue its performance under this Agreement;
B. Terminate or rescind this Agreement;
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C. If the default occurs prior to completion of the Minimum Improvements, the City may
withhold the Certificate of Completion and Release of Forfeiture;
D. If the default occurs prior to issuance of the Certificate of Completion and Release of
Forfeiture, revest title in the name of the City pursuant to Section 5.3 of this
Agreement;
E. Take whatever action, including legal or administrative action, which may appear
necessary or desirable to the non-defaulting party to collect any payments due under
this Agreement, or to enforce performance and observance of any obligation,
agreement, or covenant of the defaulting party under this Agreement; and
F. If the Developer’s default occurs prior to the Date of Closing, the City may retain any
and all earnest money paid by the Developer pursuant to this Agreement.
5.03. Revesting Interest in the City Upon Happening of Event of Default Subsequent to
Conveyance to Developer. In the event that subsequent to conveyance of the Property to the
Developer and prior to the issuance of a Certificate of Completion and Release of Forfeiture
for the Minimum Improvements:
A. the Developer, subject to Unavoidable Delays, fails to begin construction of the
Minimum Improvements within sixty (60) days after the Closing and such failure to
begin construction is not cured within thirty (30) days after written notice from the
City to the Developer to do so; or
B. subject to Unavoidable Delays, the Developer, after commencement of the
construction of the Minimum Improvements, fails to complete construction of the
Minimum Improvements within eighteen (18) months after the Closing.
C. the Developer shall fail to pay real estate taxes or assessments on the Development
Property when due, or shall place thereon any encumbrance or lien unauthorized by
this Agreement, or shall suffer any levy or attachment to be made, or any
materialmen's or mechanics' lien, or any other unauthorized encumbrance or lien to
attach, and such taxes or assessments shall not have been paid, or the encumbrance or
lien removed or discharged or provision satisfactory to the City made for such
payment, removal, or discharge, within sixty (60) days after written demand by the
City to do so or such longer period, not to exceed ninety (90) days, as may reasonably
be necessary to remove said lien or encumbrance; provided, that if the Developer shall
first notify the City of its intention to do so, it may in good faith contest any mechanics'
or other lien to remain undischarged and unsatisfied during the period of such contest
and any appeal, but only if the Developer provides the City with a bank letter of credit
or other security in the amount of the lien, in a form reasonably satisfactory to the
City, pursuant to which the bank will pay to the City the amount of any lien in the
event the lien is finally determined to be valid or, as an alternative to such forms of
security, has made a deposit with the district court in the manner provided in
Minnesota Statutes, section 514.10. During the course of such contest, the Developer
shall keep the City informed respecting the status of such defense; or
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D. there is, in violation of this Agreement, any transfer of the Development Property to
an entity exempt from payment of real estate taxes or any sale of the Property or the
Minimum Improvements or any part thereof prior to completion of Minimum
Improvements, and such violation shall not be cured within 30 days after written
demand by the City to the Developer;
Then the City shall have the right to re-enter and take possession of the Development Property
and to terminate and revest in the City the interest of the Developer in the Development
Property; provided, however, that any exercise by the City of its rights or remedies hereunder
shall always be subject to and limited by, and shall not defeat, render invalid or limit in any
way the lien of any mortgage or other encumbrance specifically and previously authorized by
the City in writing under this Agreement or any rights or interests provided in this Agreement
for the protection of the holders of an approved encumbrance.
Notwithstanding anything to the contrary contained in this Section 5.3 of this Agreement,
the City shall have no right to re-enter or retake title to and possession of any part of the
Property for which a Certificate of Completion and Release of Forfeiture has been issued.
5.04. Acquisition and Development Financing. The City recognizes that the Developer will
obtain financing for the 501 Project from a commercial lender (the "Lender") from time
to time for the costs associated with the Minimum Improvements (collectively referred
to as the "Development Loan") and, that in order to do so, the Lender may require a
mortgage on the Property which is prior to the rights of the City under this Agreement
and that the City will have to subordinate its Revesting rights and interest (including,
without limitation, the reverter rights in Section 5.03.) to the Development Loan.
Subordination shall apply to advances, renewals, modifications or replacements of a
Development Loan.
The City, pursuant to the terms of a subordination or other agreement acceptable to
Lender, City and Developer, will, consent to a Development Loan and the
subordination of its Revesting rights and interest to such Development Loan and agrees
that the Lender of a Development Loan shall have the right, at its option, to cure or
remedy any breach or default of the Developer, including any breach or default with
respect to construction of the Minimum Improvements, provided the Lender has first
expressly assumed the obligations owed by the Developer to the City by written
agreement reasonably satisfactory to the City and the Lender, and agrees to complete
in the manner provided in the Agreement, the Minimum Improvements for the
Property that is subject to the lien of such mortgage. Upon written request of the Lender
sent to the City in the manner required by Section 4.09 herein, the City will agree to
notify the Lender of any default of the Developer under the terms of this Agreement at
the address of the Lender set forth in such written notice. Upon written request of the
City, the Lender will agree to notify the City, at the notice address set forth herein, of
any default of the Developer under the terms of the Development Loan. To the extent
agreed to by the Lender, the City shall have the right, at its option, to cure or remedy
any breach or default with respect to a Development Loan and shall have redemption
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rights in the event of foreclosure of a Development Loan.
5.05. Resale of Reacquired Development Property; Disposition of Proceeds. Subject to the
subordination as set forth in Section 5.4, upon the revesting in the City of title to and/or
possession of the Property or any part thereof as provided herein, the City shall, pursuant
to its responsibilities under law, use its best efforts to sell the Property or part thereof as
soon and in such manner as the City shall find feasible and consistent with the objectives of
such law to a qualified and responsible party or parties (as determined by the City) who will
assume the obligation of making or completing the Minimum Improvements or such other
improvements in their stead as shall be satisfactory to the City in accordance with the uses
specified for such Property or part thereof. During any time while the City has title to and/or
possession of a parcel obtained by reverter, the City will not disturb the rights of any owner
of any housing unit on the Property. Upon resale of the Property, the proceeds thereof shall
be applied:
A. First, to reimburse the City for all costs and expenses incurred by them, including
but not limited to salaries of personnel, in connection with the recapture,
management, and resale of the Property (but less any income derived by the City
from the Property or part thereof in connection with such management); all taxes,
assessments, and water and sewer charges with respect to the Property or part
thereof (or, in the event the Property is exempt from taxation or assessment or such
charge during the period of ownership thereof by the City, an amount, if paid, equal
to such taxes, assessments, or charges (as determined by the City assessing official)
as would have been payable if the Property were not so exempt); any payments
made or necessary to be made to discharge any encumbrances or liens existing on
the Property or part thereof at the time of revesting of title thereto in the City or to
discharge or prevent from attaching or being made any subsequent encumbrances
or liens due to obligations, defaults or acts of the Developer, its successors or
transferees; any expenditures made or obligations incurred with respect to the
making or completion of the subject improvements or any part thereof on the
Property or part thereof; and any amounts otherwise owing the City by the
Developer and its successor or transferee; and
B. Second, to reimburse the Developer, its successor or transferee, up to the amount
equal to the amount actually invested by it in making any of the subject
improvements on the Development Property or part thereof.
Any balance remaining after such reimbursements shall be retained by the City as its
property.
5.06. No Remedy Exclusive. No remedy herein conferred upon or reserved to the parties is
intended to be exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or
omission to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be deemed expedient. In order to
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entitle the City or the Developer to exercise any remedy reserved to it, it shall not be
necessary to give notice, other than such notice as may be required in this Agreement.
5.07. No Additional Waiver Implied by One Waiver. In the event any covenant or agreement
contained in this Agreement should be breached by either party and thereafter waived by
the other party, such waiver shall be limited to the particular breach so waived and shall not
be deemed to waive any other concurrent, previous or subsequent breach hereunder.
5.08. Termination. This Agreement shall terminate upon the issuance of the Certificate of
Completion and Release of Forfeiture, but no such termination shall terminate any
indemnification or other rights or remedies arising hereunder due to any Event of
Default which occurred and was continuing prior to such termination.
The remainder of this page is left intentionally blank.
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IN WITNESS OF THE ABOVE, the parties have caused this Agreement to be executed on
the date and year written above.
CITY:
City of Hopkins
By:
Patrick Hanlon
Its: Mayor
By:
Michael Mornson
Its: City Manager
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of ______________,
2025, by Patrick Hanlon and Michael Mornson, the Mayor and City Manager, respectively, of
the City of Hopkins, a Minnesota municipal corporation, on behalf of the corporation.
__________________________________
Notary Public
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HRA:
Housing and Redevelopment Authority in and
for the City of Hopkins
By:
Name: Patrick Hanlon
Its: President
By:
Name: Michael Mornson
Its: Executive Director
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of ______________,
2025, by Patrick Hanlon and Michael Mornson, the President and Executive Director,
respectively, of the Housing and Redevelopment Authority in and for the City of Hopkins, a
public body corporate and politic under the laws of the State of Minnesota, on behalf of the
corporation.
__________________________________
Notary Public
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DEVELOPER:
Footprint Development LLC
By:
Name: Cody Fischer
Its: President
STATE OF MINNESOTA )
) SS.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this day of ,
2025, by Cody Fischer, the President of Footprint Development LLC, a Minnesota limited
liability company, on behalf of the company.
______________________________
Notary Public
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EXHIBIT A
TO PURCHASE AND DEVELOPMENT AGREEMENT
Legal Description of Property
Property:
15 6th Avenue N - PID 2411722420017
501 Main Street - PID 2411722420009
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EXHIBIT B
TO PURCHASE AND DEVELOPMENT AGREEMENT
DEVELOPMENT SITE CONCEPT PLAN
The preliminary Concept Plan includes the construction of at least 30 Phius Design Certified
housing units and 27 parking stalls developed on the Property and at least 30 Phius Design Certified
housing units on the 525 Parcel as set forth on the Concept Plan.
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EXHIBIT C
TO PURCHASE AND DEVELOPMENT AGREEMENT
FORM OF QUIT CLAIM DEED
Quit Claim Deed
Deed Tax Due: $ ECRV: .
Date: , 2025.
FOR VALUABLE CONSIDERATION, City of Hopkins, a municipal corporation under the
laws of the State of Minnesota, Grantor, hereby conveys and quitclaims to Footprint
Development LLC, a Minnesota limited liability company, under the laws of the State of
Minnesota, Grantee, real property in Hennepin County, Minnesota, described on the attached
Exhibit A, together with all hereditaments and appurtenances, subject to the documents
described on the attached Exhibit B. This Quit Claim Deed shall include the conveyance of
any after-acquired interest in the property described on Exhibit B.
Check here if part or all of the land is Registered (Torrens)
□ The Seller certifies that the Seller does
not know of any wells on the described
real property.
□ A well disclosure certificate
accompanies this document or has
been electronically filed. (If
electronically filed, insert WDC
number: ).
□ I am familiar with the property
described in this instrument and I
certify that the status and number of
wells on the described real property
have not changed since the last
previously filed well disclosure
certificate.
CITY OF HOPKINS
By:
Patrick Hanlon
Its: Mayor
By:
Michael Mornson
Its: City Manager
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STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
The foregoing was acknowledged before me this day of ____________, 2025, by
Patrick Hanlon and Michael Mornson, the Mayor and City Manager, respectively, of the City of
Hopkins, a municipal corporation organized under the laws of the State of Minnesota, on behalf of
the municipal corporation, Grantor.
_____________________________
NOTARY STAMP SIGNATURE OF PERSON
TAKING ACKNOWLEDGMENT
This instrument was drafted by:
Kennedy & Graven, Chartered (SJR)
150 South Fifth Street, Suite 700
Minneapolis, MN 55402
(612) 337-9300
Tax Statements should be sent to:
Footprint Development LLC
1017 Ashland Avenue
St. Paul, MN 55104
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Exhibit A to Quit Claim Deed
Legal Description
15 6th Avenue N - PID 2411722420017
501 Main Street - PID 2411722420009
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Exhibit B to Quit Claim Deed
1. Easements and encumbrances of record;
2. Purchase and Development Agreement dated , 2025
and recorded contemporaneously with this deed.
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PURCHASE AND DEVELOPMENT AGREEMENT BY AND AMONG
THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND
FOR THE CITY OF HOPKINS, THE CITY OF HOPKINS, MINNESOTA
AND FOOTPRINT DEVELOPMENT LLC
(525 MAINSTREET)
THIS PURCHASE AND DEVELOPMENT AGREEMENT (the "Agreement") is made this ____
day of July, 2025, by and among the Housing and Redevelopment Authority in and for the City of
Hopkins, a Minnesota public body corporate and politic and the City of Hopkins, Minnesota, a
Minnesota municipal corporation (collectively, the “City”), and Footprint Development LLC, a
Minnesota limited liability company or its affiliated successors and assigns as permitted in this
Agreement (the “Developer”).
RECITALS
A. The City is the fee owner of certain real estate located at 525 Mainstreet (“525 Mainstreet”)
in the city of Hopkins, Hennepin County, Minnesota, which is legally described in Exhibit
A, attached hereto (the "Property").
B. The City has selected Developer as the preferred private developer for the development of
the Property and for parcels located at 501 Mainstreet (the “501 Mainstreet Parcel”) and
15 6th Avenue North (the “15 6th Parcel”) (the “Development Project”). Attached hereto
as Exhibit B is Developer’s concept site plan for the Development Project (the “Concept
Plan”), which was presented by Developer for preliminary review by the City Planning and
Zoning Commission and City Council consistent with the City’s Development Review
Process.
C. The 525 Parcel, 501 Parcel and 15 6th Parcel shall be collectively referred to as the
“Development Site” which is to be developed consistent with the Concept Plan.
D. The parties negotiated this Agreement pursuant to which City, as seller, and Developer, as
purchaser, will sell and purchase respectively the Property (for Developer’s development
and construction of the Minimum Improvements (as defined in Section 3.05 below)
(independently referenced to as (“525 Project”)).
E. The parties will contemporaneously execute a Purchase and Development Agreement for
Developer’s purchase of the 501 Parcel and 15 6th Parcel (the “501 Purchase Agreement”).
F. The parties desire to enter into this Agreement to outline the parties’ respective
expectations, rights, and obligations regarding the Developer’s construction of the
Minimum Improvements on the Property.
G. The sale of the Property in accordance with the terms of this Agreement based on the
Developer’s express agreement to carry out the terms of this Agreement.
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Agreement
In consideration of each party's promises as set forth in this Agreement, it is mutually agreed as
follows:
ARTICLE ONE
REPRESENTATIONS AND WARRANTIES
1.01. City's Representations and Warranties. The City makes the following representations as the
basis for the undertakings on its part contained herein:
A. The City includes the City of Hopkins, Minnesota, a municipal corporation under the
laws of Minnesota, and the Housing and Redevelopment Authority in and for the City
of Hopkins, a Minnesota public body corporate and politic (the “HRA”).
B. The City is the fee owner of the Property.
C. The City has the right, power and authority to execute, deliver and perform its
obligations under this Agreement.
1.02. Developer's Representations and Warranties. The Developer makes the following
representations as the basis for the undertakings on its part contained herein:
A. The Developer is a domestic limited liability company formed under the laws of the
state of Minnesota.
B. The Developer has the right, power and authority to execute, deliver and perform its
obligations under this Agreement. The Developer assures the City that the individual
who executes this Agreement on behalf of the Developer is duly authorized to sign on
behalf of the Developer and to bind the Developer thereto.
C. The Developer is not in default under any lease, contract, or agreement to which it is a
party or by which it is bound, which would materially adversely affect its performance
under this Agreement.
D. The Developer has complied with and will continue to comply with all applicable
federal, state and local statutes, laws, ordinances and regulations including, without
limitation, any permits, licenses and applicable zoning, environmental, or other laws,
ordinances, or regulations affecting the Property. The Developer has not received notice
of any pending or threatened claim of any such violation. Without limitation of the
foregoing, the Developer expressly acknowledges and agrees that it shall comply with
all applicable City subdivision, zoning, and other related municipal code regulations.
E. There is no suit, action, arbitration or legal, administrative or other proceeding or
governmental investigation pending or threatened against or affecting the Developer.
The Developer is not in default with respect to any order, writ, injunction or decree of
any federal, state, local or foreign court, department, agency or instrumentality.
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F. None of the representations and warranties made by the Developer or made in any
exhibit hereto or memorandum or writing furnished or to be furnished by the Developer
or on its behalf contains or will contain any untrue statement of material fact or omits
any material fact, the omission of which would be materially misleading.
G. Before closing, Developer will have sufficient funds or will obtain a commitment for
financing in an amount adequate to finance construction of the Development Project and
other work that may be undertaken by the Developer in conjunction with said
improvements.
1.03. Incorporation of Recitals and Exhibits. The Recitals set forth in the preamble to this Agreement
and the Exhibits attached to this Agreement are incorporated into this Agreement as if fully set forth
herein.
ARTICLE TWO
CONSTRUCTION OF IMPROVEMENTS
2.01. Public Improvements. The Developer shall not be responsible for any public improvements (the
“Public Improvements”) associated with the Property, unless any work they undertake requires
modifications to improvements already in place.
A. Stormwater Management Facilities. The Developer shall be responsible for one
hundred percent (100%) of the cost to install and provide private stormwater
management facilities (the “Facilities”) on the Property. The Developer shall be
responsible for the connection of its Facilities into the public storm sewer and/or
the regional system at the location(s) and in such a manner as approved by the City
Engineer. Developer shall be responsible for the costs of any temporary
connections to the public storm sewer.
B. Property Monumentation. The City agrees to verify that the statutorily required
property monumentation has been installed by or under the direction of a registered
land surveyor, and if any has not been installed, shall be responsible for its
completion prior to the sale of the Property.
2.02. Developer’s Improvements. The Developer agrees that it will construct the Minimum
Improvements on the Property, as defined in Section 3.05, and all elements associated therewith
on the Property in accordance with all plans and specifications submitted by Developer and
approved by the City that are required for Developer’s construction of the Minimum Improvements
(the “Construction Plans”). The general site layout and renderings depicting the Development
Project are attached to this Agreement as Exhibit B. The Developer acknowledges that, in addition
to the requirements of this Agreement, construction of the Minimum Improvements will
necessitate compliance with other reviews and approvals by the City and possibly other
governmental agencies and, to the extent such approvals have not already been obtained, agrees to
submit all applications for and shall use commercially reasonable efforts to pursue to their
conclusion all other approvals needed prior to constructing the Minimum Improvements. The
Developer shall not be responsible for any Public Improvements located outside of the Property,
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other than as provided in 2.02.D. below.
The Developer shall be responsible at the Developer’s sole expense for the following:
A. Minimum Improvements. The Developer shall be responsible for the cost (including
permitting and associated fees) to construct the Minimum Improvements, as defined in
Section 3.05.
B. Site Grading. The Developer shall be responsible for the grading of the Property and
submittal of a grading plan to the City Engineer for approval. No significant deviations
from the approved grading plan, as determined by the City Engineer, shall occur
without the approval of the City Engineer. At the completion of final grading, the
Developer shall provide as-built drawings of the final grading, if required by applicable
City ordinances.
C. Site Improvements. The Developer shall construct various site work improvements,
including, but not limited to, parking lots, sidewalks, lighting, signage, plantings,
fencing, and landscaping pursuant to the Construction Plans. All work shall comply
with applicable City ordinances and regulations and shall be subject to review and
approval by the City, pursuant to such ordinances and regulations.
D. Utility Services. The Developer shall be responsible for one hundred percent (100%)
of the cost (including permitting and road restoration costs) to extend water, sanitary
sewer, and storm sewer services from the street to and within the Property as well as
abandoning any existing utilities and/or services not needed for the Project as approved
by the City Engineer, if necessary.
E. Sodding and Landscaping. The Developer will be responsible for sodding or seeding
the Property and the disturbed right-of-way areas that are not paved and all other
disturbed turf areas, as required by applicable City ordinances and regulations.
F. Storm Water Pollution Prevention Plan (SWPPP). The Developer shall be responsible
for erosion and sediment control throughout the work at the Property. Developers plans
shall include any requisite SWPPP prepared in accordance with and meeting the
requirements of the Minnesota Pollution Control Agency (MPCA) National Pollutant
Discharge Elimination System (NPDES) General Stormwater Permit for Construction
Activity requirement and the City's Municipal Separate Storm Sewer System (MS4)
permit.
The Developer shall address failed erosion control structures or apparent need for additional
erosion control measures within twenty-four (24) hours after written notification by the City. If
the Developer fails to perform the requested corrections in the period dictated by the City, the
Developer hereby grants the City consent to enter onto the Property to perform the corrective work.
The Developer will reimburse the City for all erosion control work performed on its behalf. The
Developer shall inspect and if necessary clean all catch basins, sumps, and swale areas of
erosion/siltation and restore to the original condition at the end of construction within the Property.
All silt fence and other erosion control should be removed following the establishment of turf.
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G. Street and Sidewalk Maintenance. The Developer shall be responsible for providing
street and sidewalk maintenance as required that is attributable to the construction of
the Minimum Improvements, including sweeping of debris and soil, until the
development is complete. Warning signs shall be placed when hazards develop in the
streets or along the sidewalks.
H. Damage Responsibilities. The Developer shall be financially responsible for the repair
of any damage done to the existing and proposed public streets, utilities, and trails
directly related to the construction of the Minimum Improvements, from the time of
installation until the development is fully completed and approved by the City.
I. Property Monumentation. The Developer, and any contractors, subcontractors,
consultants, etc. performing work or providing services on behalf of the Developer,
shall be responsible for protection of all permanent subdivision monumentation before
the City's issuance of the final Certificate of Occupancy. Disturbed or damaged
monumentation shall be replaced by a licensed land surveyor at the Developer's
expense.
J. Underground Utilities. In accordance with the Hopkins City Code of Ordinances, all
utilities that serve newly developing areas are to be placed underground, unless
overhead utilities are required based on a determination by the City Engineer. The
Developer acknowledges that it shall be responsible for the relocation of overhead
distribution lines serving the Property at the Developer's sole expense.
K. Other Governmental Jurisdictions. The Developer shall be responsible for securing all
necessary approvals and permits from all appropriate federal, state, regional, and local
jurisdictions prior to the commencement of site grading or construction, and shall
provide copies of all required permits to the City prior to beginning any work covered
under the respective permit.
2.03. Security Requirements for Temporary Certificate of Occupancy. Should the Developer
request a Temporary Certificate of Occupancy for the 525 Project prior to the completion off all
of the Minimum Improvements (including, but not limited to, parking lots, sidewalks, lighting,
and landscaping) the Developer will furnish to, and at all times thereafter maintain with the City a
cash escrow, certified check, performance bond or irrevocable letter of credit (hereinafter,
collectively known as the "Security"), based on one hundred percent (100%) of the total estimated
cost of all of the incomplete work. Such Security shall be subject to approval of the City Attorney.
Such Security shall be for the exclusive use and benefit of the City and shall state thereon that the
same is issued to guarantee and assure that the Developer completes construction of such
incomplete required improvements in accordance with the Construction Plans. Following at least
thirty (30) days written notice to Developer, if Developer does not complete the incomplete
improvements within said thirty (30) days period, the City reserves the right to draw, in whole or
in part, on any portion of the Security for the purpose of guaranteeing completion of any
incomplete improvements until all improvements are completed. The Security shall be renewed
or replaced by not later than thirty (30) days prior to its expiration with a like Security.
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The Developer may request reduction of the Security based on prepayment or the value of the
completed improvements at the time of the requested reduction. If requested, the City will perform
an evaluation of the work completed without charge to the Developer only once per month based
on monthly payments to contractors. If additional evaluations are requested, the Developer will
be responsible for the estimated costs incurred by the City for performing the additional
evaluations. The amount of reduction will be determined by the City.
ARTICLE THREE
CONVEYANCE PROVISIONS
3.01. Purchase Price; Provisions for Payment. The purchase price to be paid to the City by the
Developer in exchange for the conveyance of the Property is One and No/100 Dollar ($1.00).
The purchase price shall be payable by the delivery of cash or other funds of the Developer
in the amount of One and No/100 Dollar ($1.00). In addition to the consideration set forth
herein, the Developer shall pay to the City any and all costs associated with the City’s
environmental and remediation costs associated with the Property and the Development Project.
3.02. Conditions of Conveyance. The City shall convey title to and possession of the Property to
the Developer by a quit claim deed substantially in the form of the deed attached hereto as
Exhibit C. The City's obligation to convey the Property to the Developer is subject to the
satisfaction of the following terms and conditions:
A. The City having approved the Construction Plans;
B. There existing no uncured Events of Default under this Agreement or the 501
Purchase Agreement;
C. The execution and delivery of copies of all of the Exhibits attached hereto;
D. The City having held a public hearing authorizing the conveyance of the Property
pursuant to Minnesota Statute; and
E. The City through its Planning and Zoning Commission finds the land disposal to be
in compliance with the Comprehensive municipal plan pursuant with Minnesota
Statutes Section 462.356, subd. 2.
These conditions are solely for the benefit of the City and may be waived by the City. All
conditions must be satisfied or waived on or before the Closing, as defined herein. If any
such conditions have not been satisfied or waived not less than fifteen (15) days prior to the
Closing, then this Agreement may be terminated by either party, by written notice delivered
to the other. Waiver of any condition must be in writing and delivered to the non-waiving
party.
The closing on conveyance of the Property from the City to the Developer shall
occur upon satisfaction of the conditions specified herein, but not later than September 30,
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2027, or at such date as the parties hereto may agree in writing (the "Closing"). The Closing
shall occur at City Hall, unless the parties agree, in writing, to an alternative closing location.
The deed required hereunder, and all other documents, shall be in recordable form,
and shall be promptly recorded in the proper office for recordation of deeds and other
instruments pertaining to the Property. At closing, the Developer shall pay:
A. The recording costs for the deed (excluding state deed tax) and costs associated
with any additional recordable documents;
B. Title insurance commitment fees and premiums, if any; and
C. Title company closing fees, if any.
At Closing, the City shall pay the following costs:
A. State deed tax; and
B. Costs of recording any instruments used to clear title encumbrances; and
C. Outstanding taxes and assessments, if any.
3.03. As-is Condition. The Developer acknowledges that the City makes no representations or
warranties as to the condition of the soils or other environmental conditions on the Property
or its fitness for construction of any improvements thereupon or any other purpose for which
the Developer may make use of such property and further acknowledges and agrees that the
Property shall be conveyed as is. THE DEVELOPER ACKNOWLEDGES THAT THE
DEVELOPER IS PURCHASING THE PROPERTY IN RELIANCE ON THE
DEVELOPER' S INSPECTION OF THE PROPERTY PURSUANT TO THIS
AGREEMENT AND ON THE DEVELOPER'S JUDGEMENT REGARDING THE
SUFFICIENCY OF SUCH INSPECTIONS. THE DEVELOPER IS NOT RELYING ON
ANY WRITTEN OR ORAL REPRESENTATION, WARRANTIES, OR STATEMENTS
THAT THE CITY OF THE CITY' S AGENTS HAVE MADE. SUBJECT TO THE
DEVELOPER'S RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO THE
TERMS HEREIN, THE DEVELOPER IS PURCHASING THE PROPERTY IN "AS IS"
CONDITION. The Developer further agrees that, after Closing, it will indemnify, defend,
and hold harmless the City, and its governing body members, officers, and employees, from
any claims or actions arising out of the presence, if any, of hazardous wastes or pollutants on
the Property.
3.04. No Business Subsidy. The City and Developer hereby acknowledge that the assistance
being provided by this Agreement, if any, constitute assistance for housing, and therefore do
not constitute a business subsidy according to Minnesota Statutes, section 1161.993, subd. 3,
para. (7).
3.05. 525 Project. The 525 Project to be developed at the Property by the Developer shall consist
of the construction of at least 30 Phius Design Certified housing units on the Property (the
"Minimum Improvements"). The general layout plan for the Minimum Improvements is as
depicted in Exhibit B of this Agreement. The Construction Plans will be the definitive
document regarding the Minimum Improvements to be constructed on the Property.
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3.06. Developer’s Conditions.
A. The City shall convey marketable title to and possession of the Property to the
Developer under a quit claim deed, as set forth above. The conveyance of title
pursuant to the quit claim deed shall be subject to all of the conditions, covenants,
restrictions and limitations imposed by this Agreement.
The Developer shall obtain a commitment for an Owner's Title Insurance
Policy issued by Land Title, 2200 County Road C West, Suite 2205, Roseville, MN
55113 (the “Title Company”), naming Developer as the proposed owner-insured of
the Property in the amount of the Purchase Price (the “Commitment”). The
Commitment shall have a current date as its effective date and shall commit to insure
marketable title in Developer, free and clear of all mechanics' lien claims,
unrecorded interests, rights of parties in possession or other standard title exceptions,
including the deletion of the survey exception should Developer obtain the Survey
(as such term is defined herein). The Commitment shall set forth all levied real
estate and special assessments. Said Commitment shall have attached copies of all
instruments of record which create any easements or restrictions which are referred
to in Schedule B of the title commitment. The Developer will be allowed twenty
(20) days after receipt of the Commitment to make an examination thereof and to
make any objections to the marketability of the title to Property, said objections to
be made by written notice to the City, or shall be deemed waived, and shall be
included in the quit claim deed as a permitted encumbrance.
If the title to the Property, as evidenced by the Commitment and any survey
that the Developer obtains for the Property (at its sole cost and expense) (the
“Survey”), together with any appropriate endorsements, does not evidence good
and marketable title of record in the City and is not made so by the Date of Closing,
Developer may, as its sole recourse, either:
i. Terminate this Agreement by giving written notice to the City in which event
this Agreement shall become null and void and neither party shall have any
further rights or obligations; or
ii. Elect to accept the title in its then-existing condition by giving written notice to
the City, and proceed to Closing, with no reduction in the Purchase Price.
B. Developer shall determine, in Developer’s sole and absolute discretion, at
Developer’s sole cost and expense, that Developer is satisfied with the results of all
soil tests, well tests, building engineering inspections, environmental testing and
other testing and due diligence Developer elects to complete in its sole and absolute
discretion.
C. Developer shall have obtained, at Developer’s expense, all requisite third party
approvals, including any and all governmental approvals (including, without
limitation, zoning and land use and approval of the Construction Plans), in form
and substance in Developer’s sole and absolute discretion, to allow Developer to
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construct and operating the Project.
D. Developer has received final approval of all financing Developer requires, in its
sole and absolute discretion, to complete the Minimum Improvements.
E. These conditions are solely for the benefit of the Developer and may be waived by
the Developer. All conditions must be satisfied or waived on or before the Closing,
as defined herein. If any such conditions have not been satisfied or waived not less
than fifteen (15) days prior to the Closing, then this Agreement may be terminated
by either party, by written notice delivered to the other. Waiver of any condition
must be in writing and delivered to the non-waiving party.
ARTICLE FOUR
ADDITIONAL PROVISIONS
4.01. Platting Requirements. The Property has already been platted.
A. Easements. The Developer shall provide all easements as required by City Code
and as directed b y the City Engineer.
B. Parkland Dedication. Parkland Dedication or payment in lieu of dedication will not
be required to be made by Developer, consistent with the conditions and
requirements contained in the Hopkins City Code, State statutes, and this
Agreement.
4.02. Parking and Storage During Construction. The Developer agrees to provide adequate
parking and storage area for workers, equipment, construction materials, or other items
associated with the construction of the Minimum Improvements. The Developer shall be
responsible for clean-up and restoration of any property related to their use. The Developer
shall submit a plan to the City that adequately depicts and defines contractor parking and all
construction staging areas. All construction staging areas shall be further delineated on site
with appropriate construction fencing.
4.03. City's Access. The Developer hereby grants the City, its agents, employees, officials and
contractors a non-revocable license to enter the Property following reasonable notice to
Developer to perform all work and inspections deemed appropriate by the City related to
the Development Project and the Property.
4.04. Attorney Fees. If either party shall bring suit against the other to enforce the terms of this
Agreement, the losing party shall pay to the prevailing party the prevailing party’s costs and
expenses (including, without limitation, reasonable attorneys’ fees and costs) incurred in
enforcing performance of this Agreement.
4.05. Amendment. Any amendment to this Agreement must be in writing and signed by both
parties.
4.06. Assignment. Prior to the issuance of a Certificate of Completion and Release of Forfeiture
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the Developer may not assign any of its obligations under this Agreement without the prior
written consent of the City, except to an affiliate of Developer formed to complete the
Minimum Improvements.
4.07. Agreement to Run with Land. This Agreement shall be recorded among the land records
of Hennepin County, Minnesota. The provisions of this Agreement shall run with the
Property and be binding upon the Developer and its assigns or successors in interest.
Notwithstanding the foregoing, no conveyance of the Property or any part thereof shall
relieve the Developer of its liability for full performance of this Agreement unless the City
expressly so releases the Developer in writing.
4.08. Representatives Not Individually Liable. No official, agent or employee of the City shall
be personally liable to the Developer, or any successor in interest, in the event of any default
or breach by the City on any obligation or term of this Agreement.
4.09. Notices and Demands. Any notice, demand, or other communication under this Agreement
by either party to the other shall be sufficiently given or delivered if it is dispatched by
registered or certified mail, postage prepaid, return receipt requested, or delivered
personally:
A. As to the Developer: Footprint Development LLC
1017 Ashland Avenue
St. Paul, MN 55104
Attn: Cody Fischer
Email: cody@footprintdev.com
Siegel Brill, P.A.
100 Washington Avenue S, Suite 1300
Minneapolis, MN 55401
Attn: Tony Gleekel
Email: tonygleekel@siegelbrill.com
B. As to the City and HRA: City of Hopkins
1010 1st Street South
Hopkins, MN 55343
Attn: Kersten Elverum
Email: kelverum@hopkinsmn.com
With a copy to: Kennedy & Graven, Chartered
Fifth Street Towers, Suite 700
150 South Fifth Street
Minneapolis, MN 55402
Attn: Scott J. Riggs
Email: sriggs@kennedy-graven.com
or at such other address with respect to either such party as that party may, from time to time,
designate in writing and forward to the other as provided in this Section 4.09.
With a copy to:
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4.10. City Ownership of Public Improvements. The Developer expressly acknowledges and
agrees that the Public Improvements and all easements and other rights in the Property
necessary and related to the City's ownership of the Public Improvements, shall inure to the
City upon the Developer's compliance with this Agreement and acceptance by the City of any
Public Improvements subdivision.
4.11. Building Permits and Occupancy Permits and Certificate of Completion and Release of
Forfeiture. The City issuance of a building permit or an occupancy permit shall be
contingent, in part, on the following:
A. Building Permit. The City shall issue no building permits until the following has
occurred to the satisfaction of the City:
• This Agreement is signed and any required security and required financial
assurances, if any, are in place;
B. Occupancy Permit. The City shall issue no occupancy permits until the following
has occurred to the satisfaction of the City:
• The site grading is completed and approved by the City;
• All utilities are tested, approved by the City, and in service;
• All curbing is installed and backfilled;
• The first lift of bituminous for any parking and access is in place and
approved by the City;
• All non-paved areas are stabilized or proper erosion control measures are in
place; and
• All building permit fees are paid in full.
The City may issue building permits prior to complete installation of utilities and grading. No
occupancy permits shall be issued until the Developer has complied with the requirements of this
Agreement and these requirements have been approved by the City, unless otherwise authorized in
writing by the City. The Developer, in executing this Agreement, assumes all liability and costs for
damage or delays, incurred by the City, in the construction of the Public Improvements, caused by
the Developer, its employees, contractors, subcontractors, materialmen or agents.
C. Certificate of Completion and Release of Forfeiture
i. Promptly after verification of the completion of the Minimum Improvements
in accordance with the provisions of this Agreement relating to the obligations
of the Developer to construct such improvements, the City will furnish the
Developer with a Certificate of Completion and Release of Forfeiture, in
recordable form. The Certificate of Completion and Release of Forfeiture
shall be a conclusive determination and conclusive evidence of the
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satisfaction and termination of the agreements and covenants in this
Agreement with respect to the obligations of the Developer to construct the
Minimum Improvements. The Developer shall, at its sole cost and expense,
record the Certificate of Completion and Release of Forfeiture in the property
records of and for the County.
ii. If the City shall refuse or fail to provide the Certificate of Completion and
Release of Forfeiture in accordance with the provisions of this Section 4.11
the City shall, within ten (10) days after written request by the Developer,
provide the Developer with a written statement, indicating in adequate detail
in what respects the Developer has failed to complete the Minimum
Improvements in accordance with the provisions of this Agreement, or is
otherwise in default, and what measures or acts will be necessary, in the
opinion of the City, for the Developer to take or perform in order to obtain a
Certificate of Completion and Release of Forfeiture.
iii. The construction of the Minimum Improvements of the 525 Project shall be
eligible for review for the issuance of a Certificate of Completion and Release
of Forfeiture by the City when the City has issued a Certificate of Occupancy
for at least one (1) individual residential unit located in the 525 Project.
4.12. Ownership of Documents. The completed reports, drawings, plans, and specifications shall
become the property of the City, but reproductions of them in whole or in part may be
retained by the Developer or the Consulting Engineer/Architect.
4.13. Disclaimer of Relationships. The Developer acknowledges that nothing contained in this
Agreement nor any act by the City or the Developer shall be deemed or construed by the
Developer or by any third person to create any relationship of third-party beneficiary,
principal and agent, limited or general partner, or joint venture between the City and the
Developer.
4.14. Counterparts. This Agreement and any related documents may be executed in any number
of counterparts, each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument. Electronic signatures using a certified e-signature
via Adobe or DocuSign are acceptable for this Agreement and related documents will be
accepted with the same effect as original ink-signed “hard copy” versions of such documents.
Notwithstanding the foregoing, all documents which are to be recorded must be delivered by
the signing party as fully executed and acknowledged (and, if required by applicable law,
witnessed) “wet ink” originals.
4.15. Choice of Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the state of Minnesota. Any disputes, controversies, or claims
arising out of this Agreement shall be heard in the state or federal courts of Minnesota, and
all parties to this Agreement waive any objection to the jurisdiction of these courts, whether
based on convenience or otherwise.
4.16. Indemnification. Notwithstanding anything to the contrary in this Agreement, the City, its
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officials, agents, and employees shall not be liable or responsible in any manner to the
Developer, Developer's successors or assigns, the Developer's contractors or subcontractors,
material suppliers, laborers, or to any other person or persons for any claim, demand,
damage, or cause of action of any kind or character arising out of or by reason of the
execution of this Agreement or the performance and completion of this Agreement and any
Public Improvements. The Developer, and the Developer's successors or assigns, agree to
protect, defend and hold the City, and its officials, agents, and employees, harmless from
all such claims, demands, damages, and causes of action and the costs, disbursements, and
expenses of defending the same, including, but not limited to, attorneys' fees, consulting
engineering services, and other technical, administrative or professional assistance, except
as arising out of the gross negligence or willful misconduct of such parties. Nothing in this
Agreement shall constitute a waiver or limitation of any immunity or limitation on liability
to which the City is entitled under Minnesota Statutes, Chapter 466, or otherwise.
4.17. RESERVED.
4.18. RESERVED.
4.19. Compliance with Existing Laws. The Developer warrants that all work performed pursuant
to this Agreement shall be in compliance with existing laws, ordinances, pertinent
regulations, standards, and specifications of the City.
4.20. Miscellaneous Provisions.
A. The Developer represents to the City that the 525 Project and the development of the
Property and the subdivision comply with all city, county, state and federal laws and
regulations including, but not limited to the following: subdivision ordinances,
zoning ordinances and environmental regulations. If the City determines that the
subdivision, the 525 Project or the development of the Property does not comply, the
City may, at its option, refuse to allow construction or development work on the
Property until the Developer does comply. Upon the City's demand, the Developer
shall cease work until there is compliance.
B. Third parties shall have no recourse against the City under this Agreement.
C. An Event of Default by the Developer shall be grounds for denial of building permits,
including lots sold to third parties.
D. Wherever possible, each provision of this Agreement and each related document shall
be interpreted so that it is valid under applicable law. If any provision of this
Agreement or any related document is to any extent found invalid by a court or other
governmental entity of competent jurisdiction, that provision shall be ineffective only
to the extent of such invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement or any other related document.
E. No failure by any party to insist upon the strict performance of any covenant, duty,
agreement, or condition of this Agreement or to exercise any right or remedy
consequent upon a breach thereof, shall constitute a waiver of any such breach of any
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other covenant, agreement, term, or condition, nor does it imply that such covenant,
agreement, term or condition may be waived again. The action or inaction of the City
shall not constitute a waiver or amendment to the provisions of this Agreement. To
be binding, amendments or waivers shall be in writing and signed by the parties. The
City's failure to promptly take legal action to enforce this Agreement shall not be a
waiver or release.
F. Each right, power or remedy herein conferred upon the City is cumulative and in
addition to every other right, power or remedy, express or implied, now or hereafter
arising, available to the City, at law or in equity, or under any other agreement, and
each and every right, power and remedy herein set forth or otherwise so existing may
be exercised from time to time as often and in such order as may be deemed expedient
by the City and shall not be a waiver of the right to exercise at any time thereafter
any other right, power, or remedy .
G. This Agreement, together with the exhibits hereto, which are incorporated by
reference, constitutes the complete and exclusive statement of all mutual
understandings between the parties with respect to this Agreement, superseding all
prior or contemporaneous proposals, communications, and understandings, whether
oral or written, pertaining to the subject matter of this Agreement.
H. No official, agent or employee of the City shall be personally liable to Developer, or
any successor in interest, in the event of any default or breach by the City on any
obligation or term of this Agreement.
I. Data provided to the Developer or received from the Developer under this Agreement
shall be administered in accordance with the Minnesota Government Data Practices
Act, Minnesota Statutes, Chapter 13.
J. Unavoidable Delays means delays in the performance of a party’s obligations
herein, which delays are outside the reasonable control of the party claiming its
occurrence, to extent such actual delays are a result of (i) unusually severe or
prolonged bad weather, (ii) acts of God, acts of war, civil unrest, terrorism, criminal
conduct of third parties, fire or other casualty to the Minimum Improvements,
(iii) litigation commenced by third parties, (iv) actions or inactions of any federal,
State, or local government unit which directly result in delays, including, but not
limited to, a declared emergency under Minnesota Statutes, Chapter 12 or due to
pandemic or quarantine restrictions imposed by applicable Law, (v) strikes, or other
labor trouble, industry-wide material shortages and delays in delivery, labor
shortages; (vi) concealed or unknown site conditions not revealed and not
reasonably anticipated prior to the date of this Agreement; (vii) pandemic and
outbreaks of Covid-19 and variants thereof; (viii) delays in the delivery of materials
for the Minimum Improvements; and/or (ix) other events beyond the party’s
reasonable control which the party claiming delay.
K. An amendment to this Agreement must be in writing and will not be effective until
it has been approved and executed by the parties. A party to this Agreement may
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not assign or transfer any right or obligation hereunder without an assignment
agreement executed by the parties and the assignee.
L. The provisions of this Agreement concerning Indemnification, Compliance with
Laws, Compliance with the Minnesota Government Data Practices Act, Audit,
Choice of Law and Venue shall survive the expiration or termination of this
Agreement.
M. The provisions of this Agreement shall be severable. If any portion of this Agreement
is, for any reason, held by a court of competent jurisdiction to be contrary to law,
such decision shall not affect the remaining provisions of the Agreement.
N. Any waiver by any party of a breach of any provision of this Agreement shall not
affect, in any respect, the validity of the remainder of this Agreement.
4.21. Miscellaneous Conditions and Additional Requirements. The Developer shall satisfy,
complete and abide by all requirements set forth in the Authorizing Resolution and all adopted
City ordinances (as consistently applied) and resolutions affecting the Property, all of which
are incorporated herein by reference as if fully set forth in this Agreement. The Developer
shall adequately address non-compliance with the Authorizing Resolution, City Ordinances
and Resolutions as may be directed by the City Attorney, the City Engineer or others with
review and approval authority for the City.
4.22. Title Work Clean-up. The parties to this Agreement acknowledge that various potential
clean-up issues associated with the title work for the Property may need to occur. The City
agrees to undertake and endeavor to resolve such issues as may be identified in title work for
the Property. The City and Developer agree to cooperate with each other and their
representatives regarding any reasonable requests made subsequent to the execution of this
Agreement to revise or correct any errors in the title work for the Property and to provide any
and all additional documentation deemed necessary by either party to effectuate such revisions
or corrections to the title work for the Property.
4.23. Other Development Agreements. Any other development agreements including the
Preliminary Development Agreement, affecting the Property are incorporated herein by
reference as necessary as if fully set forth herein. In the case of any inconsistencies between
such development agreements and this Agreement, the language of this Agreement shall
control.
4.24. Estoppel Certificate. Each party, respectively, agrees that at any time and from time to time
within ten (10) business days after receipt of a written request by the other party, to execute,
acknowledge and deliver to such party a statement in writing certifying: (a) that this
Agreement is unmodified and in full force and effect or, if there have been modifications, that
the same are in full force and effect as modified and identifying the modifications; (b) that no
party is in default under any provisions of this Agreement or, if there has been a default, the
nature of such default; (c) that all work to be performed, under this Agreement or any related
agreement has been performed or, if not so performed, specifying the work to be performed;
and (d) as to any other matter that the requesting party or a prospective mortgagee or other
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lender shall reasonably request. It is intended that any such statement may be relied upon by
any person, prospective mortgagee of, or assignee of any mortgage, upon such interest. Any
such statement on behalf of the City may be executed by the City Manager without City
Council approval.
4.25. RESERVED.
4.26. Escrow/Payment of City Costs. The Developer must reimburse the City for its actual
costs as follows:
A. Developer’s Escrow to Process the Development Project. The Developer shall
provide the City with a $5,000.00 cash escrow to reimburse the City for its actual
costs regarding the following:
1. The preparation and administration of this Agreement and related
agreements, the 501 Project, and other related documents, permits, and
applications associated with the Project; and
2. Reasonable technical and professional assistance (including but not limited
to the cost of City staff time; but excluding any staff time associated with the
preparation or assistance with any grant applications and any attorneys’ fees
incurred in the negotiation of this Agreement) incurred or expended by the
City on activities arising out of this Agreement and related undertakings.
B. Replenishment and Return of the Developer’s Escrow. Within ten (10) days of
demand by the City, the Developer must pay all City costs that exceed the amount
of the established escrow. The City will return all remaining escrow to the
Developer after the Project’s completion and after the Developer has paid all
required City costs and expenses per this Agreement.
C. Remedy to Recover the City’s Costs. If the City does not recover its costs under the
provisions of this Agreement, the City may assess the Property in the manner
provided by Minnesota Statutes, Chapter 429. The Developer consents to the levy
of such special assessments without notice or hearing and waives its rights to appeal
such assessments under Minnesota Statutes, Section 429.081. The amount levied,
together with the funds deposited with the City under this Agreement, must not
exceed the expenses incurred by the City in the completion of the Public
Improvements. Further, the City may recover incurred City expenses through
service charges, per Minnesota Statutes, Section 415.01, 366.011, and
366.012. Finally, the Developer agrees all such unpaid amounts constitute charges
for governmental services that the City may, at its option, collect as a first-in-priority
lien on any unsold lots and on any other property the Developer may own in the state
pursuant to Minnesota Statutes, section 514.67.
D. Survivability of Payment of the City’s Costs. This Section survives termination of
this Agreement and binds the Developer, regardless of the enforceability of other
provisions of this Agreement.
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ARTICLE V
EVENTS OF DEFAULT
5.01. Events of Default Defined. Each and every one of the following shall be an Event of Default
under this Agreement:
A. Failure by the City or the Developer to proceed to closing on the Development
Property after compliance with or the occurrence of all conditions precedent to
closing;
B. Failure by the Developer to commence and complete construction of the Minimum
Improvements within eighteen (18) months following the Closing, pursuant to the
terms, conditions and limitations of this Agreement, including the timing thereof,
unless such failure is caused by an Unavoidable Delay;
C. Failure by the Developer to pay real estate taxes or special assessments on the
Development Property and Minimum Improvements as they become due;
D. Use by the Developer or others of the Minimum Improvements for purposes other
than those contemplated and permitted by this Agreement.
E. Transfer or Sale of the Development Property or the Minimum Improvements or any
part thereof by the Developer in violation of this Agreement and without the prior
written permission by the City;
F. If the Developer shall file a petition in bankruptcy, or shall make an assignment for
the benefit of its creditors or shall consent to the appointment of a receiver; or
G. Failure by either party to observe or perform any material covenant, condition,
obligation or agreement on its part to be observed or performed under this Agreement.
5.02. Remedies on Default. Whenever any Event of Default referred to in Section 5.1 of this
Agreement occurs, the non-defaulting party may take any one or more of the following actions
after providing 30 days written notice to the defaulting party of the Event of Default, but only
if the Event of Default has not been cured within said thirty days or, if the Event of Default is
by its nature incurable within 30 days, the defaulting party does not provide assurances to the
non-defaulting party reasonably satisfactory to the non-defaulting party that the Event of
Default will be cured and will be cured as soon as reasonably possible:
A. Suspend its performance under this Agreement, including refusing to close on the
Development Property, until it receives assurances from the defaulting party,
deemed adequate by the non-defaulting party, that the defaulting party will cure its
default and continue its performance under this Agreement;
B. Terminate or rescind this Agreement;
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C. If the default occurs prior to completion of the Minimum Improvements, the City may
withhold the Certificate of Completion and Release of Forfeiture;
D. If the default occurs prior to issuance of the Certificate of Completion and Release of
Forfeiture, revest title in the name of the City pursuant to Section 5.3 of this
Agreement;
E. Take whatever action, including legal or administrative action, which may appear
necessary or desirable to the non-defaulting party to collect any payments due under
this Agreement, or to enforce performance and observance of any obligation,
agreement, or covenant of the defaulting party under this Agreement; and
F. If the Developer’s default occurs prior to the Date of Closing, the City may retain any
and all earnest money paid by the Developer pursuant to this Agreement.
5.03. Revesting Interest in the City Upon Happening of Event of Default Subsequent to
Conveyance to Developer. In the event that subsequent to conveyance of the Property to the
Developer and prior to the issuance of a Certificate of Completion and Release of Forfeiture
for the Minimum Improvements:
A. the Developer, subject to Unavoidable Delays, fails to begin construction of the
Minimum Improvements within sixty (60) days after the Closing and such failure to
begin construction is not cured within thirty (30) days after written notice from the
City to the Developer to do so; or
B. subject to Unavoidable Delays, the Developer, after commencement of the
construction of the Minimum Improvements, fails to complete construction of the
Minimum Improvements within eighteen (18) months after the Closing.
C. the Developer shall fail to pay real estate taxes or assessments on the Development
Property when due, or shall place thereon any encumbrance or lien unauthorized by
this Agreement, or shall suffer any levy or attachment to be made, or any
materialmen's or mechanics' lien, or any other unauthorized encumbrance or lien to
attach, and such taxes or assessments shall not have been paid, or the encumbrance or
lien removed or discharged or provision satisfactory to the City made for such
payment, removal, or discharge, within sixty (60) days after written demand by the
City to do so or such longer period, not to exceed ninety (90) days, as may reasonably
be necessary to remove said lien or encumbrance; provided, that if the Developer shall
first notify the City of its intention to do so, it may in good faith contest any mechanics'
or other lien to remain undischarged and unsatisfied during the period of such contest
and any appeal, but only if the Developer provides the City with a bank letter of credit
or other security in the amount of the lien, in a form reasonably satisfactory to the
City, pursuant to which the bank will pay to the City the amount of any lien in the
event the lien is finally determined to be valid or, as an alternative to such forms of
security, has made a deposit with the district court in the manner provided in
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Minnesota Statutes, section 514.10. During the course of such contest, the Developer
shall keep the City informed respecting the status of such defense; or
D. there is, in violation of this Agreement, any transfer of the Development Property to
an entity exempt from payment of real estate taxes or any sale of the Property or the
Minimum Improvements or any part thereof prior to completion of Minimum
Improvements, and such violation shall not be cured within 30 days after written
demand by the City to the Developer;
Then the City shall have the right to re-enter and take possession of the Development Property
and to terminate and revest in the City the interest of the Developer in the Development
Property; provided, however, that any exercise by the City of its rights or remedies hereunder
shall always be subject to and limited by, and shall not defeat, render invalid or limit in any
way the lien of any mortgage or other encumbrance specifically and previously authorized by
the City in writing under this Agreement or any rights or interests provided in this Agreement
for the protection of the holders of an approved encumbrance.
Notwithstanding anything to the contrary contained in this Section 5.3 of this Agreement,
the City shall have no right to re-enter or retake title to and possession of any part of the
Property for which a Certificate of Completion and Release of Forfeiture has been issued.
5.04. Acquisition and Development Financing. The City recognizes that the Developer will
obtain financing for the 525 Project from a commercial lender (the "Lender") from time
to time for the costs associated with the Minimum Improvements (collectively referred
to as the "Development Loan") and, that in order to do so, the Lender may require a
mortgage on the Property which is prior to the rights of the City under this Agreement
and that the City shall subordinate its Revesting Rights and Interest (including, without
limitation, the reverter rights in Section 5.03.). Subordination shall apply to advances,
renewals, modifications or replacements of a Development Loan.
The City, pursuant to the terms of a subordination or other agreement will, consent to
a Development Loan and the subordination of its Revesting Rights and Interest to such
Development Loan and agrees that the Lender of a Development Loan shall have the
right, at its option, to cure or remedy any breach or default of the Developer, including
any breach or default with respect to construction of the Minimum Improvements,
provided the Lender has first expressly assumed the obligations owed by the Developer
to the City by written agreement reasonably satisfactory to the City and the Lender,
and agrees to complete in the manner provided in the Agreement, the Minimum
Improvements for the Property that is subject to the lien of such mortgage. Upon
written request of the Lender sent to the City in the manner required by Section 4.09
herein, the City will agree to notify the Lender of any default of the Developer under
the terms of this Agreement at the address of the Lender set forth in such written notice.
Upon written request of the City, the Lender will agree to notify the City, at the notice
address set forth herein, of any default of the Developer under the terms of the
Development Loan. To the extent agreed to by the Lender, the City shall have the
right, at its option, to cure or remedy any breach or default with respect to a
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Development Loan and shall have redemption rights in the event of foreclosure of a
Development Loan.
5.05. Resale of Reacquired Development Property; Disposition of Proceeds. Subject to the
subordination set forth in Section 5.4, upon the revesting in the City of title to and/or possession
of the Property or any part thereof as provided herein, the City shall, pursuant to its
responsibilities under law, use its best efforts to sell the Property or part thereof as soon and in
such manner as the City shall find feasible and consistent with the objectives of such law to a
qualified and responsible party or parties (as determined by the City) who will assume the
obligation of making or completing the Minimum Improvements or such other improvements
in their stead as shall be satisfactory to the City in accordance with the uses specified for such
Property or part thereof. During any time while the City has title to and/or possession of a
parcel obtained by reverter, the City will not disturb the rights of any owner of any housing
unit on the Property. Upon resale of the Property, the proceeds thereof shall be applied:
A. First, to reimburse the City for all costs and expenses incurred by them, including but
not limited to salaries of personnel, in connection with the recapture, management,
and resale of the Property (but less any income derived by the City from the Property
or part thereof in connection with such management); all taxes, assessments, and
water and sewer charges with respect to the Property or part thereof (or, in the event
the Property is exempt from taxation or assessment or such charge during the period
of ownership thereof by the City, an amount, if paid, equal to such taxes, assessments,
or charges (as determined by the City assessing official) as would have been payable
if the Property were not so exempt); any payments made or necessary to be made to
discharge any encumbrances or liens existing on the Property or part thereof at the
time of revesting of title thereto in the City or to discharge or prevent from attaching
or being made any subsequent encumbrances or liens due to obligations, defaults or
acts of the Developer, its successors or transferees; any expenditures made or
obligations incurred with respect to the making or completion of the subject
improvements or any part thereof on the Property or part thereof; and any amounts
otherwise owing the City by the Developer and its successor or transferee; and
B. Second, to reimburse the Developer, its successor or transferee, up to the amount
equal to the amount actually invested by it in making any of the subject
improvements on the Development Property or part thereof.
C. Any balance remaining after such reimbursements shall be retained by the City as its
property.
5.06. No Remedy Exclusive. No remedy herein conferred upon or reserved to the parties is intended
to be exclusive of any other available remedy or remedies, but each and every such remedy
shall be cumulative and shall be in addition to every other remedy given under this Agreement
or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise
any right or power accruing upon any default shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. In order to entitle the City or the Developer to
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exercise any remedy reserved to it, it shall not be necessary to give notice, other than such
notice as may be required in this Agreement.
5.07. No Additional Waiver Implied by One Waiver. In the event any covenant or agreement
contained in this Agreement should be breached by either party and thereafter waived by the
other party, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent, previous or subsequent breach hereunder.
5.08. Termination. This Agreement shall terminate upon the issuance of the Certificate of
Completion and Release of Forfeiture, but no such termination shall terminate any
indemnification or other rights or remedies arising hereunder due to any Event of
Default which occurred and was continuing prior to such termination.
The remainder of this page is left intentionally blank.
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IN WITNESS OF THE ABOVE, the parties have caused this Agreement to be executed on
the date and year written above.
CITY:
City of Hopkins
By:
Patrick Hanlon
Its: Mayor
By:
Michael Mornson
Its: City Manager
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of ______________,
2025, by Patrick Hanlon and Michael Mornson, the Mayor and City Manager, respectively, of
the City of Hopkins, a Minnesota municipal corporation, on behalf of the corporation.
__________________________________
Notary Public
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HRA:
Housing and Redevelopment Authority in and
for the City of Hopkins
By:
Name: Patrick Hanlon
Its: President
By:
Name: Michael Mornson
Its: Executive Director
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of ______________,
2025, by Patrick Hanlon and Michael Mornson, the President and Executive Director,
respectively, of the Housing and Redevelopment Authority in and for the City of Hopkins, a
public body corporate and politic under the laws of the State of Minnesota, on behalf of the
corporation.
__________________________________
Notary Public
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DEVELOPER:
Footprint Development LLC
By:
Name: Cody Fischer
Its: President
STATE OF MINNESOTA )
) SS.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this day of ,
2025, by Cody Fischer, the President of Footprint Development LLC, a Minnesota limited
liability company, on behalf of the company.
______________________________
Notary Public
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EXHIBIT A
TO PURCHASE AND DEVELOPMENT AGREEMENT
Legal Description of Property
Property:
525 Mainstreet – PID 2411722420166
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EXHIBIT B
TO PURCHASE AND DEVELOPMENT AGREEMENT
DEVELOPMENT SITE CONCEPT PLAN
The preliminary Concept Plan includes the construction of at least 30 Phius Design Certified
housing units and developed on the Property and at least 30 Phius Design Certifed housing units
and 27 parking stalls on the 501 Parcel and 15 6th Parcel consistent with the representation set forth
in the Developer’s Request for Proposals (the “RFP”) response as set forth and incorporated into
Exhibit D.
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EXHIBIT C
TO PURCHASE AND DEVELOPMENT AGREEMENT
FORM OF QUIT CLAIM DEED
Quit Claim Deed
Deed Tax Due: $ ECRV: .
Date: , 2025.
FOR VALUABLE CONSIDERATION, City of Hopkins, a municipal corporation under the
laws of the State of Minnesota, Grantor, hereby conveys and quitclaims to Footprint
Development LLC, a Minnesota limited liability company, under the laws of the State of
Minnesota, Grantee, real property in Hennepin County, Minnesota, described on the attached
Exhibit A, together with all hereditaments and appurtenances, subject to the documents
described on the attached Exhibit B. This Quit Claim Deed shall include the conveyance of
any after-acquired interest in the property described on Exhibit B.
Check here if part or all of the land is Registered (Torrens)
□ The Seller certifies that the Seller does
not know of any wells on the described
real property.
□ A well disclosure certificate
accompanies this document or has
been electronically filed. (If
electronically filed, insert WDC
number: ).
□ I am familiar with the property
described in this instrument and I
certify that the status and number of
wells on the described real property
have not changed since the last
previously filed well disclosure
certificate.
CITY OF HOPKINS
By:
Patrick Hanlon
Its: Mayor
By:
Michael Mornson
Its: City Manager
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STATE OF MINNESOTA )
) ss.:
COUNTY OF HENNEPIN )
The foregoing was acknowledged before me this day of ____________, 2025, by
Patrick Hanlon and Michael Mornson, the Mayor and City Manager, respectively, of the City of
Hopkins, a municipal corporation organized under the laws of the State of Minnesota, on behalf of
the municipal corporation, Grantor.
_____________________________
NOTARY STAMP SIGNATURE OF PERSON
TAKING ACKNOWLEDGMENT
This instrument was drafted by:
Kennedy & Graven, Chartered (SJR)
150 South Fifth Street, Suite 700
Minneapolis, MN 55402
(612) 337-9300
Tax Statements should be sent to:
Footprint Development LLC
1017 Ashland Avenue
St. Paul, MN 55104
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Exhibit A to Quit Claim Deed
Legal Description
Property:
525 Main Street - PID 2411722420166
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Exhibit B to Quit Claim Deed
1. Easements and encumbrances of record;
2. Purchase and Development Agreement dated , 2025
and recorded contemporaneously with this deed.
MEMORANDUM
TO: Kersten Elverum – Director of Planning and Development
FROM: Stacie Kvilvang - Ehlers
DATE: July 9, 2025
SUBJECT: Sale of HRA Parcels to Footprint Development – 15 6th Avenue, 501 and 525 Main Avenue
The City received a proposal from Footprint Development (the “Developer”) to acquire the above referenced
parcels from the HRA. The HRA purchased the parcels in 2008, 2009 and 2013 for a total of approximately
$1.155 million. The Developer intends to develop approximately 71 rental units in two phases with the first
phase comprised of 38 units and the second phase comprised of 33 units. Overall total development costs
(TDC) are approximately $19.1 million (if land is sold for $1) and the project is expected to commence in the
spring of 2026.
Ehlers conducted a review of the developer’s budget and operating pro forma to ensure all development costs,
anticipated revenues, and expenditures are represented appropriately. Overall, our conclusion is the
development does require a land donation by the HRA for $1. The table below depicts the proposed sources
for the project.
As noted in the table, the developer is proposing approximately 96% in private financing comprised of permanent
financing of 62% ($11.797 million) and approximately 34% in equity ($6.449 million). The remaining 4% is
coming from other grant sources. If we included the HRA’s original land purchase price and an offsetting land
write down in that amount, as shown in the table below the HRA’s contribution to the project would be
approximately 6%, which is within the range of what we typically see of 5% to 10%.
SOURCES
Amount Pct.Per Unit
First Mortgage 11,797,473 62%310,460
Hennepin Co. TOD 500,000 3%13,158
Met Council Predev Grant 300,000 2%7,895
Hopkins Climate Soultuions Fund 13,000 0%342
MN Brownfields 20,000 0%526
DEED 52,800 0%1,389
Developer Cash 6,449,810 34%169,732
TOTAL SOURCES 19,133,083 100%503,502
SOURCES - WITH LAND WRITE DOWN
Amount Pct.Per Unit
First Mortgage 11,797,473 58%166,162
Hennepin Co. TOD 500,000 2%7,042
Met Council Predev Grant 300,000 1%4,225
Hopkins Climate Soultuions Fund 13,000 0%183
MN Brownfields 20,000 0%282
DEED 52,800 0%744
Developer Cash 6,449,810 32%90,842
City Land Write Down 1,155,000 6%16,268
TOTAL SOURCES 20,288,083 100%285,748
To determine if a project is “financially feasible”, there are typically two (2) measures of return on investment
for this type of use. The first is a cash-on-cash (net cash divided by equity) and the second is a yield-on-cost
(NOI divided by TDC). Typical cash-on-cash returns should be 10% and Yield on Cost should be 7% to 7.5%.
The project as reviewed, even with the land write down does not achieve these thresholds (3.5% to 5.5%
respectively). The Developer is willing to proceed with the project because of their stated mission, the fact
that he has lower overhead overall due to the small size of the company and that he hopes he can achieve
some savings in final costs.
Recommendations
Based on review of the developer’s pro forma and current market conditions, the proposed development is not
reasonably expected to occur without the land write down from the City/HRA. The Developer will not be unduly
enriched by receiving the land for $1 and the City will receive a unique development that meets its goals for the
parcels it owns.
Please contact me at 651-697-8506 with any questions.