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CR 2012-088 PUD Agreement - Former Mayon Plastics BuildingAugust 1, 2012 ia Council Report 12-88 PUD AGREEMENT —FORMER MAYON PLASTICS BUILDING Proposed Action Staff recommends adoption of the following motion: Move to improve the Planned Unit Development (PUD) Agreement between the City of Hopkins and City Center Ventures, LLC. 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, the City Council approved the PUD overlay for the former Mayon Plastics site located at 415 - 171h Avenue North. City Center Ventures, LLC, has a purchased the property and is currently doing demo work. This site is difficult to develop because of the width. All redevelopment proposals on the site have kept the east half of the existing building because of the setback on the east side. The remaining area on the west side would be the parking area. The last time City Center Ventures, LLC, was approved, some of the parking was at the LA Fitness site. At this time LA Fitness is using all of their parking, so the Mayon site needs to have all of their parking on the site. The width of the site makes parking stalls and aisles very tight. Attached in this agreement are specific parameters on how the site will be developed. Supporting Information • PUD Agreement Nancy .Anderson, AICP City P1 nner Financial Impact: $_0 Budgeted: Y/N Source: Related Documents (CIP, ERP, etc.): Notes: PUD/DEVELOPMENT AGREEMENT This PUD/Development Agreement (this "PUD Agreement") is made and executed this day of July, 2012, by City Center Ventures, LLC, a limited liability company 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. Developer is the fee owner of certain real property (the "Real Property") located in the City of Hopkins, Hennepin County, State of Minnesota, legally described in Exhibit A attached hereto and incorporated herein by reference. B. Developer made application to the City for rezoning of the Real Property as a PUD overlay zone. In support of that application, Developer submitted to the City the Plans (described in Section 3 of this PUD Agreement) describing and identifying, among other things, the proposed uses, design standards and other conditions that will be applicable within the PUD zoning district. C. On June 5, 2012, the City Council of the City approved its Resolution No. 12-34 Hopcivil\SwmoPUDAgreement.7.19.12 1 approving the Plans and the adoption of Ordinance No. 12-1049 approving overlay PUD zoning for the Real Property so that, in addition to its underlying zoning classification of B-4, the Real Property also has an overlay zoning classification of Planned Unit Development. Said Resolution No. 12-34 and Ordinance No. 12-1049 are incorporated in and made a part of this PUD Agreement in their entirety. D. As a condition of its approval and adoption, Resolution No. 12-34 and Ordinance No. 12-1049 establishing a Planned Unit Development overlay district, the City has required Developer to execute and record this PUD Agreement and to comply with and perform all of the agreements, terms, covenants, conditions and restrictions hereof. Developer has agreed: i ) to accept such agreements, terms, covenants and restrictions of this PUD Agreement, ii) execute this PUD Agreement, and iii) to record this PUD Agreement as a servitude upon the title to the Real Property. E. Section 565.02 of the Hopkins City Code provides the City may require the Developer to enter into a development agreement stating the terms and conditions for the City's approval of the PUD overlay zoning. This PUD Agreement is the development agreement described in said Section 565.02, and the City has required Developer to enter into this PUD Agreement under the authority provided in said Section 565.02. NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated in and made a part of this PUD Agreement, Developer and the City agree to the terms and conditions stated in this PUD Agreement and Developer declares that all of the Real Property shall be held, transferred, leased, occupied, used, improved and developed subject to the following agreements, terms, covenants, conditions and restrictions: 1. Intent of PUD Zoning. The intent of the PUD overlay zoning is that the past use Hopcivil\SwervoPUDAgreement.7.19.12 2 of the Real Property as a manufacturing facility will be discontinued and that the Real Property shall be redeveloped in conformity with the Plans, the terms and conditions stated in City Council Resolution No. 12-34 and all of the terms, covenants and conditions stated in this PUD Agreement, including the Development Design Standards described in Exhibit B attached hereto and incorporated herein ("Development Design Standards"). Developer agrees it will develop the Real Property in conformance with Section 565 of the Hopkins City Code, the terms and conditions stated in City Council Resolution No. 12-34 and the terms and conditions stated in this PUD Agreement, including the Development Design Standards. 2. Construction of Improvements. Developer shall construct or reconstruct, 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 the Plans identified in Paragraph 3 of this PUD Agreement. All of the public streets, curb and gutter and sidewalk construction or reconstruction work and other public improvements to be constructed within the right-of-way of 17th Avenue North as described in the Plans are referred to in this PUD Agreement as "Public Improvements." The Public Improvements shall be done completed at the sole cost and expense of Developer in accordance with the City's standard construction and engineering practices and the terms and conditions stated in this PUD Agreement. The Developer shall also design and construct all of the private parking and driveway areas, water, sewer, storm water, drainage, natural gas, underground electric, telephone and other private utility facilities and landscaping improvements required for the development of the Real Property (herein collectively referred to as the "Developer Improvements") at Developer's sole cost and expense, and in compliance with the Plans identified in Paragraph 3 of this PUD Hopeivil\SwervoPUDAgreement.7.19.12 3 Agreement. The Public Improvements and the Developer Improvements are herein collectively referred to as the "Improvements." The Improvements shall be completed in accordance with: i) the Plans defined and identified in Paragraph 3 of this PUD Agreement, as the same may be amended from time to time in accordance with its terms; and ii) all of the other terms of this PUD Agreement. 3. Identification of and Compliance With Plans. The Real Property shall be developed and the Improvements constructed and completed in accordance with the following plans which are herein collectively referred to as the "Plans." The Plans shall not be attached to this PUD Agreement. If any of the Plans are designated as "Preliminary", such Plan(s) shall, subject to City review, comment and approval, be modified, at Developer's expense, after the date of this PUD Agreement to be suitable for final construction purposes before commencement of any of the work described or depicted in the Plan in question or issuance of a building permit for the work depicted in such Plan. At such time as a preliminary Plan has been replaced by a final Plan approved by the City, all references in this PUD Agreement to such Plan shall refer to the final Plan. In the event of any conflict or inconsistency between the Plans and the provisions of this PUD Agreement, the provisions of the Plans shall control. The Plans are: Description of Plan Plan A Preliminary Grading, Drainage and Erosion Control Plan prepared by Westwood Professional Services, LLC, dated April 27, 2012. Plan B Preliminary Landscape Plan prepared by Westwood Professional Services, LLC, Incorporated and dated April 27, 2012. Plan C Preliminary Utility Plan prepared by Westwood Professional Services, LLC, dated April 27, 2012. Plan D Preliminary Site Plan prepared by Westwood Professional Services, LLC, dated April 27, 2012. Hopcivil\SwervoPUDAgreement.7.19.12 4 4. Additional Improvements. [This Section has been intentionally deleted.] 5. Construction Standards and Procedures. The Public Improvements shall be constructed and installed in accordance with the final Plans, City standards, codes, regulations and ordinances, including, but not limited to, the Engineering Guidelines adopted by the City's Department of Public Works, and with the requirements of Minnesota Rules Chapter 7560 (which rules apply to and regulate underground utility service laterals). All Plans and specifications for the Public Improvements shall be prepared and certified by a registered professional engineer or engineers, and shall be furnished to the City, reviewed by the City Engineer and modified to incorporate any comments of the City Engineer or his consultant prior to final approval thereof and issuance of a permit for the work depicted in such plans. In connection with the construction of the Improvements by Developer, the Developer shall restore all City streets, utilities and other public facilities and property disturbed or damaged as a result of Developer's construction activities to substantially the same condition as existed prior to commencement of construction. Within sixty (60) days after the completion of the Public Improvements, Developer shall supply the City with the following relating to the Public Improvements: (a) a complete set of reproducible mylar as -built plans, (b) two complete sets of utility tie sheets, (c) location stationing and swing ties of all utility stubs, (d) benchmark network and (e) digital as- builts conforming with the following requirements: ( i) AutoCAD (dwg) files of record drawings converted to Microstation DGN Format in NAD 83 Hennepin County Ground Coordinates. (ii) All Cell Libraries, Line Styles and Reference files shall be included. Hopeivil\SwervoPUDAgreement.7.19.12 - 5 - (iii) List of layer descriptions. (iv) AutoCAD file of record drawings in electronic format, including cell libraries, line styles and reference files. (v) Reproducible mylar record drawings. (vi) Utility tie sheets. 6. License. The Developer hereby grants the City, its agents, employees and inspectors a license to enter the Real Property, as necessary, to perform all work and inspections deemed appropriate by the City in conjunction with construction of the Improvements. 7. Improvements to be Transferred to City. Upon completion of construction of the Public Improvements, and final acceptance and approval thereof by the City, all of the Public Improvements shall become the sole property of the City. The Developer shall transfer the Public Improvements to the City free and clear of all liens and encumbrances. At such time as the Public Improvements have been completed, representatives of Developer's contractors, and a representative of Developer's Engineer will make a final inspection of the Public Improvements with the City Engineer. The City Engineer shall be entitled to review and approve any punch list items or lists of incomplete or defective work comprising the Public Improvements to be submitted by Developer or its representatives to the contractor(s) responsible for completion of the Public Improvements to assure that the same are completed in accordance with the requirements of this PUD Agreement. As a condition of its acceptance of title to any of the Public Improvements, the City shall receive from Developer written evidence, in form and content reasonably acceptable to the City, that Developer has caused all incomplete or defective work to be completed or corrected and has made payment in full for all work comprising the Public Improvements. Before the City accepts title to the Public Improvements, the City Engineer shall be reasonably satisfied that all of the Public Hopcivil\SwervoPUDAgreement.7.19.12 - 6 - Improvements have been completed in accordance with the Plans and the requirements of this PUD Agreement and that Developer has made payment in full for all of the work comprising the Public Improvements. Final acceptance of the Public Improvements by the City shall be evidenced by a resolution duly adopted by the City Council of the City. 8. Warran . The Developer warrants that all work comprising the Public Improvements shall be free from defective materials or faulty workmanship for a period of two (2) years after acceptance of the Public Improvements by the City as evidenced by a resolution duly adopted by the City Council, except that trees and landscaping plantings shall be warranted for twelve (12) months from the date of planting. All work and materials comprising the Public Improvements which are found to be defective within two years after acceptance thereof by the City (or twelve (12) months from the date of planting in the case of landscaping improvements) shall be repaired or replaced by Developer at Developer's sole expense 9. Reimbursement of Costs to City. Developer acknowledges the City may retain consultants to provide services related to the redevelopment of the Real Property and this PUD Agreement, and Developer shall reimburse the City for all reasonable out-of-pocket costs incurred by the City in connection with such redevelopment and the preparation, negotiation and execution of this PUD Agreement, and the administration, performance and enforcement of this PUD Agreement. Such out-of-pocket costs to be reimbursed by Developer shall include, but are not limited to, all reasonable fees due to consultants retained by City, whether incurred before or after the date of this PUD Agreement and any Amendment thereto, including, without limitation, traffic, development, fiscal, environmental, geotechnical, surveying, engineering, and legal services of the City Attorney, which are to be reimbursed at the rate of $275.00 per hour. The selection of consultants and the extent of services to be provided by them shall be in the sole (but Hopcivil\SwervoPUDAgreement.7.19.12 - 7 - reasonable) discretion of the City. Such reimbursements from Developer shall be due and payable within thirty (30) business days of delivery of a copy of the invoice or statement therefor to the Developer, and shall bear interest at the rate of one percent (1 %) per month, if not paid by Developer within thirty (30) days of the date the applicable invoice or statement has been delivered to Developer. If Developer fails to pay any reimbursement due to the City within the time period required by this Paragraph 9, the City shall be entitled to invoke and enforce all remedies available to the City under this PUD Agreement upon a default by Developer. 10. Other Governmental Approvals. The Developer shall obtain, all required approvals and/or permits from the Minnesota Pollution Control Agency ("MPCA"), Hennepin County, the Watershed District with jurisdiction over the Real Property, Minnesota Department of Health, Metropolitan Council and any other governmental authorities whose approval is required for the construction of the Improvements and the redevelopment of the Real Property. The Developer shall maintain all such required permits and comply therewith at all times. 11. Time of Performance. Developer shall commence construction of the Improvements and the development of the Real Property no later than August 1, 2012, and shall substantially complete construction of the Improvements and development of the Real Property within nine (9) months of commencement of construction. 12. Additional Conditions and PUD Zoning Requirements. Developer agrees the Real Property shall be redeveloped, held, transferred, occupied, used and improved subject to and in compliance with the following additional terms conditions and requirements: A. The intent of the PUD overlay zoning, the permitted uses and design standards within the PUD overlay zone shall be as described in the Development Design Standards. The Real Property shall be redeveloped and improved in accordance with the Hopcivil\SwervoPUDAgreement.7.19.12 - 8 - Development Design Standards. All uses of the Real Property shall be in accordance and conformity with the Development Design Standards. B. All revisions to the Plans shall be submitted for approval by City Staff, and additional requirements or conditions for construction of Improvements may be imposed upon Developer, based upon any material revisions to the Plans. All revised Plans must be signed by the consultant preparing such Plans, and shall include revision dates. C. Any request for closure of a public street by Developer must be accompanied by a detailed traffic control and detour plan reasonably acceptable to City Staff. D. The Developer shall provide evidence of title to the Real Property and any property over which public easements are to be granted to the City. Such evidence of title shall be in the form of a current Commitment for Owner's Title Insurance (ALTA form) covering all of the Real Property in which Commitment the City shall be identified as a proposed insured. The Title Insurance Commitment shall show good and marketable title to the Real Property in Developer and shall otherwise be acceptable to the City attorney. E. Developer shall pay the City an art dedication fee in the amount of $2,500.00, payable at the time of execution of this PUD Agreement and before the issuance of any permit by the City for the development of the Real Property. The art dedication fee shall not be deposited or held in a separate account by the City and may be used for any purpose related to the promotion of the arts within the City in the sole discretion of the City. F. Developer shall otherwise comply with all conditions and requirements imposed by the City Council of the City in its Resolution No. 12-34 approving Ordinance No. 12-1049 for the overlay PUD zoning for the Real Property and with the requirements of any applicable statutes, ordinances, codes or regulations Hopcivil\SwervoPUDAgreement.7.19.12 - 9 - 13. Agreement Runs With Title. The terms, conditions and restrictions established by this PUD Agreement shall run with the title to the Real Property and apply to and bind and benefit the Developer and the City and each and every subsequent owner of any part of the Real Property and their respective successors and assigns, and shall operate as a covenant passing with the title to the Real Property and any part thereof. By accepting a conveyance of all or any part of the title to all or any part of the Real Property, each of the successors or assigns of Developer agrees to be bound by all of the terms, covenants, conditions, liabilities and obligations imposed by this PUD Agreement. All of said terms, conditions and restrictions are imposed upon the Real Property as a servitude in favor of the City of Hopkins, Minnesota, for its benefit and for the benefit of Developer and its successors and assigns. Each subsequent owner, transferee or assignee of Developer shall assume Developer's obligations under this PUD Agreement, provided, such assignment shall not relieve Developer of any obligation arising prior to the effective date of the assignment. Developer may collaterally assign its interest in this PUD Agreement as security for any financing obtained by Developer for the development or improvement of the Real Property, provided any such assignment shall not relieve Developer of any of its liabilities, obligations or undertakings under this PUD Agreement. The terms, conditions and restrictions established by this PUD Agreement are perpetual in duration except that, upon Developer's completion of all of the Public Improvements and acceptance thereof by the City as provided in this PUD Agreement, and upon written request therefor from Developer, the City shall, as soon as reasonably possible, execute and deliver to Developer a Certificate, in recordable form, certifying as to Developer's compliance with the provisions of this Agreement related to the construction of the Public Improvements. 14. Security and Claims. To guaranty Developer's compliance with the terms of this Hopcivil\SwervoPUDAgeement.7.19.12 - 1 0 - PUD Agreement (including any warranties provided for herein), payment of the cost of all Public Improvements and completion of construction thereof, Developer shall deliver to the City the following Letter(s) of Credit, surety bond(s) or performance bond(s) reasonably acceptable to and in favor of the City (the "Security") issued by a bank or surety reasonably acceptable to the City of Hopkins A. The Security for the landscaping improvements comprising a part of the Improvements shall be delivered to the City before the execution of this PUD Agreement by the City. The amount of such Security for landscaping improvements shall be equal to 150 percent of the estimated cost of the landscaping improvements depicted in the Plans as established by a written estimate submitted by Developer's landscaping contractor. B. The Security for the Public Improvements, shall be delivered to the City before commencement of construction of the Public Improvements or issuance of a permit by the City permitting commencement of such construction. The amount of such Security for the Public Improvements to be constructed by Developer, other than landscaping improvements, shall equal 100 percent of the cost of such Public Improvements as established by: i) the estimated cost of completion of construction of such Public Improvements as stated in the written contracts or subcontracts for their construction and installation with the contractors or subcontractors retained by Developer or Developer's general contractor (which written contracts or subcontracts shall be delivered to the City), or ii) a written estimate from Developer's Engineer approved by the City Engineer. The Security shall be conditioned upon Developer's completion of the Public Improvements for which the Security is provided, performance of Developer's warranty under Paragraph 8 of this PUD Agreement including replacement of any defective or nonconforming Hopcivil\SwervoPUDAgreement.7.19.12 - 11 - Public Improvements and payment of the entire cost thereof, and the form and content of the Security shall be subject to the reasonable approval of the City. The Developer shall maintain the Security in effect for a term ending two (2) years after the date on which Developer has substantially completed the Public Improvements for which the security was provided and delivered proof of payment therefore to the City (the end of such two (2) year term being herein referred to as the "Termination Date"). Developer shall initially deliver to the City the original Security expiring no earlier than one (1) year after the date of delivery of the original Security to the City. Thereafter, no later than thirty (30) days before the expiration of the Security Developer shall deliver to the City original written evidence, in form reasonably acceptable to the City, extending the term of the Security for successive one (1) year periods, but in no event extending beyond the Termination Date. If Developer fails to deliver such original written evidence of extension of the Security at least thirty (30) days before expiration of the Security, Developer shall be deemed to be in default under this PUD Agreement and the City may draw upon the Security. Upon receipt of evidence acceptable to the City of payment of financial obligations related to the construction of the Public Improvements, the Security shall be reduced from time to time as financial obligations relating to the construction of the Public Improvements are paid, but in no case shall the Security be reduced to an amount less than the greater of. i) one hundred percent (100%) of the cost of completion of any incomplete Public Improvements; or ii) forty percent (40%) of the total cost of the Public Improvements (such cost to be determined in the manner specified in Subparagraph B of this Paragraph 14) until the Termination Date. Notwithstanding the provisions of the preceding sentence, the Security for the landscaping improvements comprising a part of the Improvements may not be reduced, and shall be maintained at its original amount until one (1) year after completion of such landscaping Hopcivil\SwervoPUDAgreement.7.19.12 - 12 - improvements. The City may draw upon or enforce the Security for any violation of the terms of this PUD Agreement which is not cured within ten (10) business days after written notice to the Developer, provided, in the event the default is such that it cannot be cured with reasonable diligence within ten (10) business days, the City shall not draw upon the Security so long as Developer is proceeding with all due diligence to cure such default and such default is, in fact, cured within such additional period of time not exceeding sixty (60) days after the initial written notice of default to Developer as is necessary to cure the default proceeding with all due diligence. If the Public Improvements are not completed on the date specified in Paragraph 11 of this PUD Agreement, the City may also draw upon or enforce the Security. If the Security is drawn upon, the draw shall be used to cure the default (including completion of the Public Improvements by the City, provided the City shall have no obligation to complete the Public Improvements) and may also be used to pay or reimburse the City for any cost, expenses or damages recoverable under Paragraph 15 of this PUD Agreement. The Security shall be released to Developer on the Termination Date. In the event the City receives notice of or claims from laborers, materialmen or others contributing to the Public Improvements that any amounts due them have not been paid when due, and such laborers, materialmen or others are seeking payment out of the Security or intend to assert claims against the City, the Public Improvements or the land on which the Public Improvements have been installed, and if such claims are not fully resolved at least ninety (90) days before the Security will expire, the City may draw upon or enforce the Security, but only in the manner provided for in this Paragraph 14, for the purpose of discharging any such claims (provided the City shall have no obligation to draw upon the Security or discharge claims) and may also draw upon or enforce the Security to pay or reimburse the City for any cost, expense or damages recoverable under Paragraph 15 of this PUD Hopcivil\SwervoPUDAgreement.7.19.12 - 13 - Agreement, and Developer authorizes the City to draw upon or enforce the Security for those purposes. The Developer agrees that it shall protect, indemnify and hold the City and its agents, representatives and employees harmless from and against all costs, damages and liabilities, including reasonable attorneys' fees and Court costs, resulting from or incurred in connection with Developer's failure to comply with the terms, covenants, conditions and requirements of this PUD Agreement. 15. Enforcement of PUD Agreement. The terms, conditions, requirements and restrictions established by this PUD Agreement shall be enforceable exclusively by the parties to this PUD Agreement and shall be enforceable by injunctive relief, prohibitive or mandatory, to prevent the breach of or enforce performance or observance of the terms, conditions, requirements and restrictions established by this PUD Agreement, or by any other available legal proceeding or remedy, including, but not limited to: a. Legal proceedings to recover, collect, pay or reimburse the City for the cost of completing construction of any Public Improvements required to be constructed by Developer and not so constructed following expiration of any applicable cure period stated in this PUD Agreement. b. Taking whatever action at law or in equity as may be reasonably necessary or desirable to enforce performance and observance of any of the obligations, agreements or covenants of the Developer under this PUD Agreement. C. Recovery of all costs and expenses incurred by the City in curing any default (other than defaults of the type described in Subparagraphs a and b, above) by Developer in the performance of any of the terms, covenants and conditions of this PUD Agreement. d. Recovery of all reasonable costs, fees and expenses for engineering, legal and administrative fees and expenses incurred by the City in enforcing Developer's performance of this PUD Agreement or the completion of construction of the Public Improvements required to be completed by Developer under this PUD Agreement or any amendment thereto. e. Any other remedy or sanction provided by Minnesota Statutes or the Hopeivil\SwervoPUDAgreement.7.19.12 - 14 - Ordinances of the City of Hopkins. The City agrees that it shall give Developer written notice and a reasonable opportunity to cure any default by Developer in the performance of its obligations under this PUD Agreement before incurring third -party costs and expenses that are recoverable from Developer under Subparagraphs a -e of this Paragraph 15, provided Developer shall proceed with all due diligence to cure any such default and shall cure the same within thirty (30) days after delivery of Notice of Default to Developer, provided, if the default is of such a nature that it cannot be cured within thirty (30) days, Developer shall have such additional period of time to cure such default as is necessary exercising and proceeding with all due diligence. If Developer fails to pay any amount due to the City under this PUD Agreement following final adjudication such amount is due and payable, and thereafter fails to pay such amount after thirty (30) days' written notice to Developer demanding such payment, Developer agrees the City shall be entitled to levy a special assessment against the Real Property in the amount stated in the Notice to Developer in accordance with Minn. Stat. Chapter 429, and Developer waives all objections to or appeals of the final amount of such special assessment levied against the Real Property. Developer acknowledges the rights of the City to enforce performance of the terms, conditions, requirements and restrictions established by this PUD Agreement are special, unique, and of an extraordinary character and that, in the event Developer violates or fails or refuses to perform any term, condition or restriction established by this PUD Agreement, the City shall have no adequate remedy at law. Developer agrees, therefore, that in the event Developer violates any term, condition or restriction established by this PUD Agreement, the City, may, at its option, initiate and prosecute an action to specifically enforce the performance of the terms, conditions and restrictions established by this PUD Agreement. No remedy specified in this PUD Agreement is T4 . i61\qw mnP1 JDAvreement_7.19.12 - 1 5 - intended to be exclusive, and each remedy shall be cumulative, and in addition to each and every other remedy. Failure of the City to enforce any of the terms, conditions and restrictions established by this PUD Agreement in any particular instance shall in no event be deemed to be a waiver of the right to do so as to any subsequent violation. Developer agrees that, in the event Developer defaults in the performance or observance of any of its obligations or undertakings under this PUD Agreement or any amendment thereto, and upon final adjudication by a court of competent jurisdiction of such default, Developer shall pay the City's reasonable attorneys' fees and expenses incurred as a result of such default. Developer and the City agree that jurisdiction and venue for any proceeding to enforce any rights, remedies or obligations under this PUD Agreement shall be in the District Court of Hennepin County, Minnesota, and that any proceeding to enforce the provisions of this Agreement shall be filed in said District Court. 16. Notices. Any notice, request or other communication required or provided to be given under this PUD Agreement or any Amendment thereto shall be in writing and shall be deemed to be duly given when delivered personally to an officer or manager of Developer or to the City Manager of the City, or the next business day after deposit with a reputable delivery service such as UPS overnight or Federal Express guaranteeing next -day delivery or two (2) business days after having been mailed by first class United States Mail, postage prepaid, addressed as follows: To Developer: City Center Ventures, LLC 510 — 1St Avenue North #200 Minneapolis, Minnesota 55403 Attn: Ned Abdul To City: City of Hopkins 1010 First Street South tHnnniviRSwervnPllnAereement.7.19.12 - 16 - Hopkins, MN 55343 Attn: City Manager Any party may change its address for notice purposes upon ten (10) days notice to the other party in the manner required by this Paragraph 16. Any notice to Developer's successors in title to the Real Property shall be deemed properly given and delivered for all purposes if forwarded to the address of the record owner(s) of the Real Property at the time notice is given, as such addresses are stated in the records of the Hennepin County Property Tax Department. 17. Severability. Invalidation of any of the terms, conditions, provisions or restrictions of this PUD Agreement, whether by court order or otherwise, shall in no way affect any of the other terms, conditions, provisions and restrictions, all of which shall remain in full force and effect. 18. Headings. The headings and captions at the beginnings of paragraphs of this PUD Agreement are for convenience of reference only and shall not influence its construction. 19. Execution of Counterparts. This PUD Agreement may be simultaneously executed in several counterparts, each of which shall be an original, and all of which shall constitute one and the same instrument. 20. Construction. This PUD Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota. 21. Evidence of Title, Recordation of PUD Agreement, Mortgagee's Protection. Prior to the execution of this PUD Agreement, Developer shall provide the City with evidence of title to the Real Property, at Developer's expense, in the form of a current Commitment for Owners' Title Insurance (ALTA form). The Title Insurance Commitment shall show good and marketable title to the Real Property in Developer subject to such matters as are reasonably acceptable to the City and do not affect the priority or enforceability of this PUD Agreement, and Hopcivil\SwervoPUDAgreement.7.19.12 - 17- shall otherwise be reasonably acceptable to the City Attorney, it being understood that this PUD Agreement, when recorded, shall have priority over any mortgage or similar lien encumbering the Real Property. Developer shall cause this PUD Agreement to be executed by or consented to by all persons holding any interest in the title to the Real Property, or lien thereon, as deemed necessary by the City. Developer agrees to cause this PUD Agreement to be filed for record as an encumbrance against the title to the Real Property. 22. Ownership, Maintenance and Repair of Improvements. The City shall not be responsible for the maintenance or repair of any of the Improvements other than the Public Improvements upon their acceptance by the City in accordance with the terms of this PUD Agreement, and shall have no liability whatsoever for any costs, expenses, liabilities, obligations, claims and demands related to or arising from, either directly or indirectly, the design, construction, use, maintenance, repair, reconstruction or replacement of such Improvements, together with all modifications or replacements thereof or additions thereto. The Developer shall protect, indemnify and hold the City, and its officials, representatives, agents and employees, harmless from and against all liabilities, obligations, responsibilities, claims, costs, expenses (including reasonable attorney's fees), demands and causes of action relating to or arising out of, directly or indirectly, the design or construction of the Public Improvements required to be constructed by Developer, including, but not limited to, claims for injury to persons or property. Notwithstanding the foregoing, the City shall be responsible for ownership, use, maintenance and repair of the Public Improvements following their acceptance by the City, but subject to: i) the Developer's warranty of the Public Improvements; ii) the provisions of any City ordinance of general applicability imposing upon property owners the obligation to perform snow and ice removal or similar maintenance of publicly owned improvements such as the u�,,,.;.»I\C.vP„inPi 7nAarrrmrnt 7 10 17 - 1 R- Public Improvements; and iii) the City's authority pursuant to statute and City ordinance or charter provisions to levy special assessments to pay costs of repair or replacement of publicly owned improvements. IN WITNESS WHEREOF, Developer and the City have executed this PUD Agreement as of the date and year first above written. STATE OF ss. COUNTY OF Developer CITY CENTER VENTURES, LLC as Its The foregoing instrument was acknowledged before me this day of 2012, by the , of City Center Ventures, LLC, a limited liability company under the laws of the State of Minnesota, on behalf of the limited liability company. Notary Public Hopcivil\SwervoPUDAgreement.7.19.12 - 1 9 - EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY Lots 7, 8, 9, 10 and 11, Block 1, Souba Addition to Hopkins, according to the recorded plat thereof, Hennepin County Minnesota Hopcivil\SwervoPUDAgreement.7.19.12 -21- EXHIBIT B 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 a retail facility complying with the permitted uses and design standards stated herein. The purpose and use of the overlay PUD zoning allow for more flexible design standards. The underlying B-4 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-4 zoning and the PUD overlay zoning. II. Permitted Uses. The permitted uses in the PUD overlay zone are limited to the permitted uses allowed in a B-4 zoning district under the Zoning Code of the City of Hopkins. III. Parking and Setback Requirements. Parking and setback requirements shall be the same as applicable in the underlying B-4 zoning district, with the following modifications and exceptions: a. Surface parking will be allowed within the front yard setback adjacent to 17th Avenue North. The setback for the row of surface parking adjacent to 17th Avenue North shall be 16 inches from the Westerly property line. b. The length of parking spaces shall be no less than 18 feet, with the exception of compact parking stalls. C. Parking drive isles shall be no less than 22 feet in width. IV. Design Standards. The following design standards shall apply to the improvements constructed on the Real Property: a. No backlit or "canned" box type exterior signs may be installed or used on the building to be constructed on the Real Property. b. Following completion of construction of the Improvements on the Real Property, an outdoor bicycle parking rack providing space for four (4) bicycles shall be maintained on the Real Property in a location reasonably convenient for bicycle parking. C. The monument sign for the development shall have a three (3) foot tall stone base and a total height of twelve (12) feet above ground level. The monument sign shall otherwise be constructed in compliance with the City's sign ordinance. d. The exterior building materials on the North, West and South walls shall be limited to brick, stucco and metal accents. The exterior material on the East side of the building may remain concrete block. Hopcivil\SwervoPUDAgreeinent.7.19.12 -22- CITY OF HOPKINS By Its By Its STATE OF MINNESOTA ) ) ss COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of , 2012, by Eugene J. Maxwell, the Mayor, and Michael Mornson, 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\SwervoPUDAgreement.7.19.12 -20-