CR 09-085 Second Amendment to PUD/Development Agreement-Marketplace and MainGITY OP
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October 15, 2009 PKIN Council Report 2009 -85
SECOND AMENDMENT TO PUD/DEVELOPMENT AGREEMENT —
MARKETPLACE & MAIN
Proposed Action
Staff recommends adoption of the following motion: Move to approve the Second Amendment
to PUD /Development Agreement between the City oHopkins 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. In the
spring of 2009 The Beard Group proposed to change the ownership of the units from owner-
occupied to rental, and the agreement was amended and extended for construction to start no
later than October 31, 2009. The construction now is proposed to start no later than January 31,
2009.
Primary Issue 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 January 31, 2009. The second phase of the development must be started by August 31,
2010.
Supporting Information
• Second Amendment to PUD /Development Agreement
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Financial Impact: $ 0 Budgeted: Y/N Source:
Related Documents (CIP, ERP, etc.):
Notes:
SECOND AMENDMENT TO PUD/DEVELOPMENT AGREEMENT
This Second Amendment to PUD/Development Agreement (this "Second 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 April 24, 2007, as Hennepin County Recorder
Document No. 8968613, and as Hennepin County Registrar of Titles Document No. 4379827.
On July 13, 2009, Developer and the City entered into an Amendment to PUD /Development
Agreement (the "First Amendment ") making certain amendments to the Amended PUD
Agreement, as stated in the First Amendment. The First Amendment was filed for record on
as Hennepin County Recorder Document No.
and on , as Hennepin County Registrar of Titles Document No.
HopCivil/ Opus. MarketplaceHoldings- 2ndAmendmenttoPUD I
All references in this Second Amendment to the Amended PUD Agreement
shall mean and refer to the Amended PUD Agreement, as amended by the First Amendment.
B. Paragraph 2 of the Amended PUD Agreement provides that Developer is 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
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 no later than
October 31, 2009. Paragraph 2 of the Amended PUD Agreement also provides that Developer is
to commence construction of the final phase of development of the Real Property no later than
May 31, 2010. Developer has requested that the City approve the extension of the dates for
commencement of development and construction of the initial phase of the development of the
Real Property and the final phase of development of the Real Property as provided in this Second
Amendment. The City has approved these extensions on the condition that Developer execute
this Second Amendment and record the same as a servitude upon the title to the Real Property.
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated
in and made a part of this Second 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 Second 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, the First
Amendment and this Second Amendment, collectively.
HopCivil/ Opus. MarketplaceHoldings- 2ndAmendmenttoPUD 2
2. Amendment of Paragraph 2 of Amended PUD Agreement Paragraph
2 of the Amended PUD Agreement is amended to change the date by which Developer shall
proceed with development and construction of the initial phase of development of the Real
Property from no later than October 31, 2009, to no later than January 31, 2010, and to change
the date by which Developer shall commence construction of the final phase of development of
the Real Property from no later than May 31, 2010, to no later than August 31, 2010.
3. 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 January 31, 2010, 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 August 31, 2010.
4. 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 January 31, 2010, 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."
HopCivil/ Opus. MarketplaceHoldings- 2ndAmendmenttoPUD 3
5. Integration This Second 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 Second Amendment.
IN WITNESS WHEREOF, Developer and the City have executed this Second
Amendment as of the date and year first above written.
LIM
STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )
MARKETPLACE HOLDINGS, INC.
William H. Beard
Its President
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
HopCivil/ Opus. MarketplaceHoldings- 2ndAmendmenttoPUD 4
CITY OF HOPKINS
C
Eugene J. Maxwell
Its Mayor
.3
Richard B. Getschow
Its City Manager
STATE OF MINNESOTA )
ss
COUNTY OF 14ENNEPIN )
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
HopCivil/ Opus. MarketplaceHoldings- 2ndAmendmenttoPUD 5
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 Second Amendment to
PUD /Development Agreement and agrees that the Mortgage shall be subject and subordinate to
said Second Amendment to PUD /Development Agreement.
COMMERCE BANK
By —
Its
STATE OF MINNESOTA )
ss.
COUNTY OF )
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
HopCivil/ Opus. MarketplaceHoldings- 2ndAmendmenttoPUD 6
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.
HopCivil/ Opus. MarketplaceHoldings- 2ndAmendmenttoPUD A -1