CR2009-033 Amended and Restated PUD/Development Agreement - MarketPlace and MainApril 16, 2009 N 0 P K I N S Council Report 2009 -33
AMENDED AND RESTATED PUD/DEVELOPMENT AGREEMENT —
MARKETPLACE & MAIN
Proposed Action
Staff recommends adoption of the following motion: Move to approve the Amended and
Restated PUD /Development Agreement between the Cit of f Hopkins and Marketplace
Holdings Inc.
With this action it is understood that staff is authorized to make minor changes to the agreement
that do not impact the overall intent.
Overview
In June of 2004 the City of Hopkins rezoned the former Hopkins Honda Body Shop and used -car
sales lot to a Planned Unit Development (PUD) overlay zoning to facilitate the redevelopment of
this site into a mixed -use (residential /commercial) development. At that time, a PUD agreement
was executed with Luther Companies. The PUD agreement was revised in the summer of 2006
to reflect The Cornerstone Group as owners. The PUD agreement with The Cornerstone Group
was approved by the Council, but never executed. In 2007 The Cornerstone Group sold the site
to Marketplace Holdings, Inc., (The Beard Group) and the agreement was amended. Now The
Beard Group is proposing to change the ownership of the units from owner occupied to rental,
and the agreement needs to be amended.
Primary Issues to consider
• What are the changes from the previous agreement?
There is a change in the demolition and construction start dates for the two phases of the project.
The Beard Group has asked that the date for start of construction of the first phase be no later
than October 31, 2009. The second phase of the development must be started by May 31, 2011.
The other change is from owner occupied to rental units.
SupportinE Information
• Amended and Restated PUD /Development Agreement
' J
Nancy . Anderson
Planner
Financial Impact: $ 0 Budgeted: Y/N Source:
Related Documents (CIP, ERP, etc.):
Notes:
AMENDMENT TO PUD/DEVELOPMENT AGREEMENT
This Amendment to PUD /Development Agreement (this "Amendment ") is made and
executed this day of , 2009, by Marketplace Holdings, Inc., a
corporation under the laws of the State of Minnesota ( "Developer "), and the City of Hopkins, a
municipal corporation under the laws of Minnesota ( "City ")
RECITALS
A. On April 9, 2007, Developer and the City entered into an Amended and Restated
PUD /Development Agreement (the "Amended PUD Agreement ") stating the terms and
conditions of the City's approval of PUD zoning and a Development Plan for the development of
certain real property legally described in Exhibit A attached hereto (the "Real Property "). The
Amended PUD Agreement was filed for record on , 2007, as Hennepin
County Recorder Document No. , and on April 24, 2007, as Hennepin County
Registrar of Titles Document No. 4379827.
B. Paragraph 2 of the Amended PUD Agreement provided that Developer was to
proceed with development and construction of the buildings and related or ancillary
improvements for the initial phase of development of the Real Property for which site plan
approval was granted by City Council Resolution No. 06 -15, in accordance with the terms and
HopCivil/ Opus. MarketplaceHoldings- AmendmenttoPUD -Clean I
conditions of such Resolution, the Amended PUD Agreement; and otherwise in accordance with
the terms and conditions of all applicable ordinances, codes, statutes and regulations. Paragraph
2 of the Amended PUD Agreement also provided that Developer was to commence construction
of the final phase of development of the Real Property by April 30, 2009. Developer has not
proceeded with construction of the initial or final phases of development of the Real Property in
accordance with the requirements of the Amended PUD Agreement. Developer applied for an
extension of the site plan approval for the initial phase of development of the Real Property, as
originally granted by Resolution No. 06 -15, and for approval of an extension of time for the
construction of the initial and final phases of development. Such extension of site plan approval
for the initial phase of development and approval of an extension of time for the construction of
the initial and final phases of development were granted by the City Council on March 3, 2009.
As a condition of those approvals and the approvals previously given by the City for the
development of the Real Property, the City has required Developer 'to execute and record this
Amendment and to comply with and perform all of the agreements, terms, covenants, conditions
and restrictions hereof. Developer has agreed to execute this Amendment and record the same as
a servitude upon title to the Real Property.
C. The "Plans" defined and described in the Amended PUD Agreement and the
approved Development Design Standards attached to the Amended PUD Agreement as Exhibit B
provide that the permitted uses within the PUD overlay zone established by the City for the Real
Property "are limited to retail and commercial uses consistent with the underlying B -3 zoning
and owner- occupied housing consisting of multi - family /condominium housing or townhomes."
Developer has requested that the Amended PUD Agreement and the Development Design
Standards for the Real Property be amended to allow the initial phase of development of the Real
Property to consist of up to 53 units of multi - family housing and 5,500 square feet of
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retail /commercial space. The City's Zoning Administrator has approved this request and
amendment in accordance with the provisions of Subdivision 1 of Section 565.05 of the Hopkins
City Code. As a condition of this approval, the City has required Developer to execute and
record this Amendment and to comply with and perform all of the agreements, terms, covenants
and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated
in and made a part of this Amendment, Developer and the City agree the Amended PUD
Agreement is amended as follows:
1. Defined Terms All words and phrases defined in the Amended PUD Agreement
shall, when used in this Amendment, have the same meanings stated in the Amended PUD
Agreement unless the context clearly requires a different meaning. All references to the
"Amended PUD Agreement" shall mean and refer to the Amended PUD Agreement and this
Amendment, collectively.
2. Amendment of Development Design Standards The City confirms it has
approved an amendment to the PUD zoning for the Real Property, in accordance with the
requirements of Subdivision 1 of Section 565.05 of the Hopkins City Code, to permit the Real
Property to be developed in accordance with the Amended Development Design Standards
attached to this Amendment as Exhibit B. From and after the date of this Amendment, the
Development Design Standards attached to the Amended PUD Agreement are superseded and
replaced by the Amended Development Design Standards attached to this Amendment as Exhibit
Lill]
3. Amendment of Paragraph 2 of Amended PUD Agreement Paragraph 2 of the
Amended PUD Agreement is deleted in its entirety and replaced with the following new
paragraph 2:
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2. Discontinuance of Prior Use of Real Property. Phased
Development. Development Improvements The intent of the PUD overlay
zoning is that the past use of the Real Property as an auto body repair and used car
sales facility shall be discontinued no later than the Discontinuance Date (as
defined in Paragraph 12.B., below) and that after the Discontinuance Date the
Real Property shall be redeveloped as a mixed use development in conformity
with this Amended PUD Agreement and the permitted uses and Amended
Development Design Standards described in Exhibit B hereto.
It is intended that the Real Property shall be developed in phases.
Construction of buildings and related or ancillary improvements for any phase of
development may not proceed or occur until Developer has obtained site plan
approval from the City for such phase and, if required, a plat for the phase of
development in question, all in accordance with the requirements of the Hopkins
City Code and Minnesota Statutes. No later than October 31, 2009, Developer
shall proceed with development and construction of the buildings and related or
ancillary improvements for the initial phase of development of the Real Property
for which site plan approval was granted by City Council Resolution No. 06 -15,
as extended, in accordance with the terms and conditions of such Resolution, and
this Amended PUD Agreement; and otherwise in accordance with the terms and
conditions of all applicable ordinances, codes, statutes and regulations. At the
time of site plan approval and, if required, plat approval for each subsequent
phase of development of the Real Property, the Developer and the City shall enter
into an amendment to this Amended PUD Agreement stating the particular terms,
covenants and conditions attached to the City+s approval for each subsequent
phase of development in accordance with Minnesota Statutes 462.358, Subd. 2(a),
and Section 565 of the Hopkins City Code, and otherwise consistent with the
terms and conditions stated in this Amended PUD Agreement. The City+s
approval for the development of the Real Property shall be subject to such terms
and conditions of approval, including construction of any City Improvements (as
defined herein) as may be established by the City Council consistent with the
terms and conditions of this Amended PUD Agreement. Developer agrees it shall
commence construction of the final phase of development of the Real Property no
later than May 31, 2011.
Developer shall construct, install, complete and pay for the work, labor,
materials, facilities and improvements required for the development of the Real
Property, including all of the facilities and improvements described in Plans
identified in Paragraph 3 of this Amended PUD Agreement, and the facilities and
improvements described in Paragraph 4 of this Amended PUD Agreement, all of
which work, labor, materials, facilities and improvements are herein collectively
referred to as the "Improvements." The Improvements shall be completed in
accordance with: 1) the Plans defined and identified in Paragraph 3 of this
Amended PUD Agreement, as the same may be amended from time to time in
accordance with its terms; and iii) all of the other terms of this Amended PUD
Agreement. All streets, alleys, sidewalks, trails, landscaping, sanitary sewer, City
water, storm sewer, storm drainage and other public utilities or public
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improvements constituting part of the Improvements to be constructed as provided
in this Amended PUD Agreement, which are located within any public easements
or rights -of -way are referred to in this Agreement as the rCity Improvements..
Developer's obligation to construct, install and pay for the Improvements shall
include completion of and payment for any and all labor, skill, material,
equipment and other work required during the course of construction to complete
the Improvements in compliance with the requirements of this Amended PUD
Agreement.
4. Amendment of Paragraph 3 of Amended PUD Agreement Paragraph 3 of the
Amended PUD Agreement is modified to add the following new paragraph at the end thereof:
At the time of submission of a request for site plan approval for any phase
of development of the Real Property for which site plan approval has not been
previously given or has expired, Developer shall submit comprehensive plans
depicting such phase of development, including all Improvements to be
constructed and completed as part of such phase (herein collectively referred to as
the "Future Phase Plans "). The Future Phase Plans shall be prepared and
submitted in accordance with the City's standard practices for approval of plats
and site plans and construction of Public Improvements and will include, but are
not limited to, preliminary and final plats, grading, drainage and erosion control
plans, landscaping plans, utility plans, site plans and such other surveys, plans,
drawings and engineering plans as are customarily required by the City in
connection with plat or site plan approval or are appropriate to the development of
each such phase of the Real Property. At the time of approval of each subsequent
phase of development of the Real Property, Developer shall submit the Future
Phase Plans for such phase of development for review and approval by City staff,
and the Amendment to this PUD Agreement to be entered into in connection with
the approval of each such phase of development shall identify the Future Phase
Plans for that phase and incorporate such Future Phase Plans by reference.
6. Amendment of Paragraph 11 of Amended PUD Agreement Paragraph 11 of
the Amended PUD Agreement is deleted in its entirety and replaced with the following new
paragraph 11:
11. Time of Performance Developer shall commence construction of
the Improvements for the first phase of development of the Real Property no later
than October 31, 2009, and shall substantially complete construction of the
Improvements within 24 months of commencement of construction. However, all
work to be performed by Developer within the right -of -way of Seventh Avenue
South shall be substantially completed within 180 days of the date of
commencement of construction of the Improvements for the first phase of
development. Developer shall commence construction of the final phase of
development of the Real Property no later than May 31, 2011.
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7. Amendment of Paragraph 12.,B. of Amended PUD Agreement The fourth
sentence of Paragraph 12.,B. of the Amended PUD Agreement is modified to read as follows:
"In the event Developer or its successor in title to the Real Property has not
commenced demolition and removal of all existing structures and improvements from the Real
Property by August 31, 2009, Developer agrees the City shall be entitled to require Developer or
its successor in title to the Real Property to commence and complete the demolition and removal
of all structures and improvements from the Real Property, remediation of any contamination or
other adverse environmental conditions and grading and restoration of the Real Property upon
sixty (60) days* written notice to Developer or its successor in title in the manner provided in
Paragraph 16 of this Amended PUD Agreement."
8. Integration This Amendment is incorporated in and made a part of the
Amended PUD Agreement in its entirety. The Amended PUD Agreement shall remain in effect
in all of its terms, covenants and conditions as modified by this Amendment.
IN WITNESS WHEREOF, Developer and the City have executed this Amendment as of
the date and year first above written.
MARKETPLACE HOLDINGS, INC.
William H. Beard
Its President
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STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
, 2009, by William H. Beard, President of Marketplace Holdings Inc.,
a corporation under the laws of the State of Minnesota, on behalf of the limited liability
company.
Notary Public
CITY OF HOPKINS
I:
Eugene J. Maxwell
Its Mayor
Richard B. Getschow
Its City Manager
STATE OF MINNESOTA )
ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
, 2009, by Eugene J. Maxwell, the Mayor, and Richard B. Getschow,
the City Manager, of The City of Hopkins, a municipal corporation under the laws of the State of
Minnesota, on behalf of the municipal corporation.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Steiner & Curtiss, P.A.
400 Wells Fargo Bank Building
1011 First Street South
Hopkins, Minnesota 55343
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MORTGAGEE'S CONSENT
Commerce Bank, a Minnesota banking corporation, the mortgagee named in that certain
Combination Mortgage, Security Agreement, Assignment of Rents and Fixture Financing
Statement dated April 9, 2007 (the "Mortgage "), which Mortgage was recorded
2007, as Hennepin County Recorder Document No.
and on , 2007, as Hennepin County Registrar of Titles Document No.
hereby consents to the foregoing Amendment to PUD /Development
Agreement and agrees that the Mortgage shall be subject and subordinate to said Amendment to
PUD /Development Agreement.
STATE OF MINNESOTA )
ss.
COUNTY OF )
COMMERCE BANK
By
Its
The foregoing instrument was acknowledged before me this day of
2009, by the
and the
of Commerce Bank, a banking corporation, under the laws of the
State of Minnesota, on behalf of the corporation.
Notary Public
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EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
Lots 1 and 2, Block 1, and Lot 1, Block 2, Marketplace and Main, according to the recorded plat
thereof, Hennepin County, Minnesota.
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EXHIBIT B
AMENDED DEVELOPMENT DESIGN STANDARDS
I. Intent The purpose of this overlay zone is to create a Planned Unit Development
permitting the development, construction and operation of mixed use, multi -story residential and
commercial facilities complying with the permitted uses and design standards stated herein. The
use of the overlay PUD zoning is to allow for more flexible design standards while creating a
higher quality project. The PUD overlay zone requires that the Development demonstrate a
higher quality of architectural standards and site design. The underlying B -3 zoning will remain
in effect and any future use of property within the PUD overlay zone must be consistent and in
conformity with the underlying B -3 zoning and the PUD overlay zoning.
II. Permitted Uses The permitted uses in the PUD overlay zone are limited to retail and
commercial uses consistent with the underlying B -3 zoning; not more than 53 multi - family
housing units within that part of the PUD overlay zone located between Seventh Avenue and
Eighth Avenue; and owner- occupied housing consisting of multi - family /condominium housing
or townhomes within that part of the PUD overlay zone between Sixth Avenue and Seventh
Avenue. Apartment units shall be designed and built in such a manner as to be suitable for
conversion to condominiums. All such permitted uses shall comply with the Design Standards
stated below.
III. Setbacks Setback requirements shall be the same as applicable in the underlying B -3
zoning district.
IV. Design Standards
Building Design and Construction:
a. Retail or commercial uses shall constitute not less than 5,500 square gross feet in
total within the PUD overlay zone between 7 th Avenue and 8 th Avenue and shall have frontage on
Mainstreet.
b. In the area west of Seventh Avenue, north of Mainstreet and east of the midpoint
of the block, multi- family housing consisting of not more than 53 multi - family housing units
shall be located above the retail /commercial space, with total building height of not less than
three stories and not more than four stories.
C. In the area north of Mainstreet located between Sixth Avenue and Seventh
Avenue, owner- occupied housing consisting of townhomes designed and constructed in
accordance with the architects plans and specifications submitted to and approved by the
Hopkins City Council by its Resolution No. 06 -15 approving the site plan for the development of
the Real Property . All structures shall have a height of at least two stories above grade, but not
more than three stories, provided four stories may be allowed if the building height does not
exceed the maximum height permitted in the underlying B -3 zoning district, Developer
demonstrates that the proposed four story structure will be architecturally compatible with
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surrounding buildings and adequate off - street parking is provided in compliance with the Cityas
ordinances.
d. In the area east of Eighth Avenue, north of Mainstreet and west of the midpoint of
the block, owner- occupied housing consisting of townhomes designed and constructed in
accordance with the architects plans and specifications submitted to and approved by the
Hopkins City Council by its Resolution No. 06 -15 approving the site plan for the development of
the Real Property All structures shall have a height of at least two stories above grade, but not
more than three stories.
e. Structured parking shall be provided for the multi - family residential use in
compliance with the parking requirements of the City+s Code of Ordinances. Such structured
parking shall be designed and constructed in accordance with the architects and engineers plans
and specifications therefor submitted to and approved by the City Council in its Resolution No.
06 -15 approving the site plan for the development of the Real Property. Adequate on -site
parking shall also be provided for all retail, commercial and office uses in compliance with the
recommendations and requirements of the parking study prepared by SRF Consulting Group,
Inc., dated February 1, 2006.
f All development and construction must meet the design guidelines stated in the
Downtown Overlay District Ordinance, Section 556 of the Hopkins City Code.
g. In addition to the above Design Standards, the exterior materials, finishes, facades
and other exterior design elements of the improvements constructed on the Real Property shall be
in accordance with the architectas plans, specifications and elevations therefor submitted to and
approved by the City Council in its Resolution No. 06 -15 approving the site plan for the
development of the Real Property.
V. Prohibited Uses The following uses shall be prohibited within the PUD overlay zone,
as either primary or accessory uses, whether or not the same are permitted by the underlying B -3
zoning: automobile sales or leasing, automobile repair or body shop, adult establishment, adult
motion picture theater, adult novelty business or bookstore, amusement device establishment,
cabinet, electrical, heating, plumbing, upholstery or air conditioning sales or service shop, fix -it
shop, liquor store, open sales lot, pawn shop, drive -thru restaurant, warehouse, taxi terminal,
tattoo parlor, currency exchange or tobacco shop. If any of the words and phrases in the
preceding sentence are defined in the Hopkins Code of Ordinances, such words and phrases,
when used in this paragraph, shall have the same meanings stated in the Hopkins Code of
Ordinances.
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