CR 10-008 Amendment to PUD/Dev agree MarketplaceDecember 31, 2009 1 NOPKINS Council Report 2010-08
THIRD AMENDMENT TO PUD/DEVELOPMENT AGREEMENT — MARKETPLACE
& MAIN
Proposed Action
Staff recommends adoption of the following motion: Move to approve the Third Amendment to
PUD/Development Ageement between the City of 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. 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, then January 31, 2009. We are now proposing to extend the
agreement to December 31, 2010 for flexibility on the start date.
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 date for start of construction of both phases is no later than December 31, 2010,
Supporting Information
Third Amendment to PUD/Development Agreement
Ln"'4 0h om
Nancy S nderson
Planner
Financial Impact: $ 0 Budgeted: YN Source:
Related Documents (CIP, ERP, etc.):
Notes:
unl! ' i aljuj Ij 11� no i � I
This Third Amendment to PUD/Development Agreement (this "Third Amendment ") i s
made and executed this - day of , 20 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").
I ta i XOWR
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 I 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
November 10, 2009, as Hennepin County Recorder Document No. A9442487, and as Hennepin
County Registrar of Titles Document No.T4703297. On , 2009,
HopCivil/Opus,MarketplaceHoldings-3rdAmendmenttoPUD 1
Developer and the City entered into a Second Amendment to PUD/Development Agreement (the
"Second Amendment") making certain amendments to the Amended PUD Agreement. All
references in this Third Amendment to the Amended PUD Agreement shall mean and refer to the
Amended PUD Agreement, as amended by the First Amendment and the Second 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
January 31, 2010. 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
August 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 Third
Amendment. The City has approved these extensions on the condition that Developer execute
this Third 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 Third 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 Third Amendment, have the same meanings stated in the Amended PUD
Agreement unless the context clearly requires a different meaning. All references to the
HopCivii/Opus.MarketplaceHoldings-3rdAmendmenttoPUD 2
"Amended PUD Agreement" shall mean and refer to the Amended PUD Agreement, the First
Amendment, the Second Amendment and this Third Amendment, collectively.
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 January 3 1, 2010, to no later than December 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 August 31, 2010, to no later than December 31, 2010.
3. Amendment of Paratiraph 11 of Amended PUD Agreemen 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 December 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 December 31, 2010.
4. Amendment of Paragraph 12.,B, of Amended PUD Agreemen The fourth
sentence of Paragraph 11,13. 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 December 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
HopCivil/Opus.MarketplaceHoldings-3rdAmendmenttoPUD 3
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."
5. Integration This Third Amendment is incorporated in and made a part of the
Amended PLTD Agreement in its entirety. The Amended PLTD Agreement shall remain in effect
in all of its terms, covenants and conditions as modified by this Third Amendment.
IN WITNESS WHEREOF, Developer and the City have executed this Third Amendment
as of the date and year first above written.
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
, 2010, 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
HopCiviVOpus. MarketplaceHoldings- 3rdAmendmenttoPUD 4
By
Eugene J. Maxwell
Its Mayor
By
Richard B. Getschow
Its City Manager
STATE OF MINNESOTA
)ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
2010; 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
Steiner & Curtiss, P.A.
400 Wells Fargo Bank Building
1011 First Street South
Hopkins, Minnesota 55343
Hopcivii/opus.marketplaccHoldiffgs-3rdAmendmenttoPUD 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 Third Amendment to
PUD/Development Agreement and agrees that the Mortgage shall be subject and subordinate to
said Third Amendment to PUD/Development Agreement.
COUUEV-CE 134XV,
By _
Its
STATE, OF MINNESOTA
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2010, 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•3rdAmendmenttoPUD 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.
HopCivilt Opus. MarketplaceHoldings- 3rdAmendmenttoPUD A -1