CR 11-005 Fourth Amendment to PUD/Development Agreement - MarketPlace and MainGI -TY OF
HOPKINS
• January 12, 2011 --._ Council Report 2011-05
FOURTH AMENDMENT TO PUD/DEVELOPMENT AGREEMENT —
MARKETPLACE & MAIN
Proposed Action
Staff recommends adoption of the following motion: Move to approve the Fourth Amendment
to PUD/Development Agreement 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. The agreement has been extended two more times to January 31,
2010, and again until December 31, 2010. We are now proposing to extend the agreement to
December 31, 2011 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 the start of construction of both phases is no later than December 31, 2011.
Supporting Information
• Fourth Amendment to. PUD/Development Agreement
Nancy S derson ,
Planner
Im
Financial Impact: $ 0 Budgeted: Y/N Source:
Related Documents (CIP, ERP, etc.):
Notes:
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FOURTH AMENDMENT TO PUD/DEVELOPMENT AGREEMENT
This Fourth Amendment to PUD/Development Agreement (this "Fourth Amendment') is
made and executed this day of 2011, 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').
REGTTALS
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
• November 10, 2009, as Hennepin County Recorder Document No. A9442487, and as Hennepin
County Registrar of Titles Document No.T4703297. On March 29, 2010, Developer and the City
HopCiviVOpus.MetketplaooHoldinp-4thAnmdmenttoPUA 1
entered into a Second Amendment to PUD/Development Agreement (the "Second Amendment")
making certain amendments to the Amended PUD Agreement. The Second Amendment was
filed for record on April 20, 2010, as Hennepin County Recorder Document No; A9503828, and
as Hennepin County Registrar of Titles Document No. T4747231, On March 29, ,2010,
Developer and the City entered into a Third Amendment to PUD/Development Agreement (the
"Third Amendment") making certain amendments to the Amended PUD Agreement. The Third
Amendment was filed for record on April 20, 2010, as Hennepin County Recorder Document
No. A9503829, and as Hennepin County Registrar of Titles Document No. T4747232. All
references in this Fourth Amendment to the Amended PUD Agreement shall mean and refer to
the Amended PUD Agreement, as amended by the First Amendment, the Second Amendment
and the Third 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
December 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
December 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 he
Real Property and the: final phase of development of the Real Properly as provided in this Fourth
• Amendment. The City has approved these extensions on the condition that Developer execute
this Fourth Amendment and record the same as a servitude upon the title to the Real Property:
HopCivil/Opus,MarkaplawHoldinp 4thAmendnmuoPUD .2..
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NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated
in and made a part of this Fourth Amendment, Developer and the City agree the Amended PUD
Agreement is amended as follows: -
I Defined Terms. All words and phrases defined in the Amended PUD Agreement
shall, when used in this Fourth 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, the Second Amendment, the Third Amendment and this Fourth Amendment,
collectively.
2. Amendment of Paraerauh. 20 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 December 31, 2010, to no later than December 31, 2011, 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 December 31, 2010, to no later than December 31, 2011
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. Timeof Performance. Developer shall commence construction of
the Improvements for the first phase of development of the Real Property no later
than December 31, 2011, 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, 2011.
HopCivil/opus.Marketptac*Holdings4MAmendmenttoPUD 3
4. Amendment of Paragraph 12.,B. of Amended PUD Aereement. 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 Reap Property has not
commenced demolition and removal of all existing structures and improvements from the Real
Property by December 31, 2011, 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
S. Integration. This Fourth Amendment is incorporated in and made apart 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 FourthAmendment.
IN WITNESS WHEREOF, Developer -and the City have. executed this Fourth
Amendment as of the date and year first above written.
MARKETPLACE HOLDINGS, INC.
By
William H. Beard
Its President
STATE OF MINNESOTA )
ss:
COUNTY OF HENNEPIN ) r
The. foregoing instrument was acknowledged before me this day of
2011, 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.MukoViae"IdWgi-4thAmendmenMPW < 4
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CITY OF HOPKINS
By
Eugene 1. Maxwell
Its Mayor
By
Richard B. Getschow
Its City Manager
i
STATE OF MINNESOTA )
) ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
2011, 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
HopCiviUop=.MmtctplmmHoldinp 4thAmendmenttoPUD 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, which was recorded April 24 2007, as Hennepin County
Recorder Document No. 8968615, and as Hennepin County Registrar of Titles Document No.
4379829; and in that certain Mortgage dated .April 9, 2007, and recorded April 24, 2007, as
Hennepin County Recorder Document No. 8968617, and as Hennepin County Registrar of Titles
Document No. 4379831, and amended by Document Nos. 4675222 and 9391204, hereby
consents to the foregoing Fourth Amendment to PUD/Development Agreement and agrees that
said Mortgages shall ` be subject and subordinate to' said Fourth 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
2011, 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
•
HopCivll/Opus.MathtplvMoldinp 4thAmcndmmwpUD 6
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