CR 2012-130 PUD Agreement - 525 Blake RdNovember 1, 2012 4M Council Report 12-130
PUD AGREEMENT — 525 BLAKE ROAD
Proposed Action
Staff recommends adoption of the following motion: Move to approve the Planned Unit
Development (PUD) greement between the City of Hopkins and Hopkins Blake Retail, 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 October, the City Council approved the PUD overlay zoning for the former BP gas station site
located at 525 Blake Road. The approvals also included a preliminary/final plat, rezoning, and
site plan approval. The site also includes a land swap with the property to the north and
acquisition of property owned by MnDOT to add to 525 Blake Road. Hopkins Blake Retail,
LLC, has a purchased the property and is currently planning on starting the demo work.
This site has some challenges because of the width of the site. At one point the right-of-way is
farther east, creating a zero lot line for the buildings at points along Blake Road. The agreement
will also detail the signage, fencing, and exterior materials.
Attached in this agreement are specific parameters on how the site will be developed.
Supporting Information
• PUD Agreement
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Nancy 4 Anderson, AICP
City Planner
Financial Impact: $ 0 Budgeted: Y/N Source:
Related Documents (CIP, ERP, etc.):
Notes:
PUD/DEVELOPMENT AGREEMENT
This PUD/Development Agreement (this "Development Agreement") is made and
executed this day of , 2012, by Hopkins Blake Retail, 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 approval of a plat of the Real Property
to be known as Knollwood Crossings (the "Plat"), site plan approval to develop the Real
Property by constructing two 6,000 square foot retail buildings thereon, for rezoning of the Real
Property from B-3 to B-4 zoning classification and to place PUD overlay zoning on the Real
Property. In support of those applications, Developer submitted to the City the Plans (described
in Section 3 of this Development Agreement) describing and identifying, among other things, the
proposed uses, design standards and other conditions that will be applicable within the PUD
Hopcivil\HopkinsBlakeRetailPUDAgeement.10.31.12 1
zoning district.
C. On October 23, 2012, the City Council of the City adopted its Resolution No. 12-
78 approving the Plat, Resolution No. 12-79 approving the site plan for development of the Real
Property Resolution No. 12-77 approving the adoption of Ordinance No. 12-1055 rezoning the
Real Property to B-4 zoning classification and Resolution No. 12-80 approving the adoption of
Ordinance No. 12-1056 approving overlay PUD zoning for the Real Property so that, in addition
to its underlying zoning classification of B-4, the Real Property shall also have an overlay zoning
classification of Planned Unit Development. Said Resolutions No. 12-77, 12-78, 12-79 and 12-
80 and Ordinances No. 12-1055 and No. 12-1056 are incorporated in and made a part of this
Development Agreement in their entirety.
D. As a condition the approvals and adoption of the Resolutions and Ordinance
described in Recital Paragraph C, the City has required Developer to execute and record this
Development 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 Development Agreement, ii) execute this
Development Agreement, and iii) to record this Development Agreement as a servitude upon the
title to the Real Property.
E. Minn. Stat. 462.358, Subd. 2a. and Sections 562.06, Subd. 13, and 565.02 of the
Hopkins City Code provide the City may require the Developer to enter into a development
agreement stating the terms and conditions for the City's approval of the Plat, site plan and PUD
overlay zoning. The City has required Developer to enter into this Development Agreement
under the authority provided in said Statute and in Sections 562.06 and 565.02 of the Hopkins
City Code.
Hopcivil\HopkinsBlakeRetaiIPUDAereement.10.31.12 2
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated
in and made a part of this Development Agreement, Developer and the City agree to the terms
and conditions stated in this Development 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
of the Real Property as a service station and unimproved land will be discontinued and that the
Real Property shall be redeveloped in conformity with the Plans, the terms and conditions stated
in City Council Resolutions No. 12-77, 12-78, 12-79 and 12-80 and all of the terms, covenants
and conditions stated in this Development Agreement, including the Development Design
Standards described in Exhibit B attached hereto and incorporated herein ("Development Design
Standards"). Developer agrees it will develop, maintain and operate the Real Property in
conformance with Section 565 of the Hopkins City Code, the terms and conditions stated in said
City Council Resolutions and the terms and conditions stated in this Development 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 as
described in the Plans identified in Paragraph 3 of this Development Agreement. All of the
streets, alleys, curb and gutter, sidewalk construction or reconstruction work, sanitary sewer, city
water, storm sewer, storm drainage and other public improvements to be constructed within any
public easements or rights of way and landscaping or trees planted within public street right-of-
way as described in the Plans are referred to in this Development Agreement as "Public
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 3
Improvements." The Public Improvements shall be 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 Development 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
Development 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 Development
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 Development Agreement.
3. Identification of and Compliance With Plans. The Real Property shall be
developed and the Improvements constructed and completed in accordance with Plans A -H as
described in this Paragraph 3 as the Description of Plans collectively to be referred to as the
"Plans." The Plans shall not be attached to this Development 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 Development 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. Material
changes to any of the Plans described in this Section shall also require review and approval by
the City. At such time as a Plan has been replaced by a final Plan approved by the City, all
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 4
references in this Development 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 Development
Agreement, the provisions of the Plans shall control. The Plans are:
Description of Plans
Plan A Grading, Drainage and Erosion Plan prepared by Westwood Professional
Services, Inc., ("Westwood") dated October 1, 2012.
Plan B Landscape Plan prepared by Westwood dated October 1, 2012.
Plan C Utility Plan prepared by Westwood dated October 1, 2012.
Plan D Civil Site Plan prepared by Westwood dated October 1, 2012.
Plan E Preliminary Plat of Knollwood Crossings prepared by Westwood dated
August 20, 2012.
Plan F Storm Water Pollution Prevention Plan, Narrative and Notes prepared by
Westwood dated October 1, 2012.
Plan G Building Floor Plan dated October 1, 2012, and Building Elevations dated
October 18, 2012, prepared by Jamdal Architects, LLC.
Plan H Photometric Plan prepared by On -Site Lighting & Survey, LLC, dated
October 2, 2012.
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
Hopcivil\HopkinsBlakeRetaiIPUDAgreement.10.31.12 5
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.
(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
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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 Development 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 Improvements have been completed in accordance with the Plans and the requirements of
this Development 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. Warranty. 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
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 7
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
Development 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 Development Agreement, and the administration, performance
and enforcement of this Development 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 Development Agreement and any
Amendment thereto, including, without limitation, traffic, development, fiscal, environmental,
geotechnical, surveying, engineering, and legal services of the City Attorney, the latter of 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 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 (3 0) 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
Development Agreement upon a default by Developer.
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 8
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 December 1, 2013, and
shall substantially complete construction of the Improvements and development of the Real
Property within 18 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, improved and operated in accordance with
the 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
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 9
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. As a condition of execution and release of the Plat by the City, Developer
shall pay the City a park dedication fee in an amount of $33,372.28, which amount has been
calculated in accordance with the provisions of Section 500.75 of the Hopkins City Code.
F. The Developer shall obtain all required permits, licenses and approvals
from Hennepin County for constructing and maintaining the sidewalk and retaining wall to be
constructed within the County -owned right-of-way of Blake Road as shown in the Plans.
G. Pickup or collection of trash, garbage and recyclable materials from the
Real Property shall not be permitted between the hours of 10:00 PM and 7:00 AM.
H. Developer shall otherwise comply with all conditions and requirements
imposed by the City Council of the City in the City Council Resolutions identified in Recital
Paragraph C and with the requirements of any applicable statutes, ordinances, codes or
regulations.
13. Agreement Runs With Title. The terms, conditions and restrictions established
by this Development 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
Hopcivil\HopkinsBlakeRetaHPUDAgreement.10.31.12 10
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 Development 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 Development 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 Development 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 Development Agreement. The Developer represents that there is no Mortgage on the
Real Property as of the date of this Development Agreement.
The terms, conditions and restrictions established by this Development 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 Development 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 Development Agreement related to the construction of the Public
Improvements.
14. Securitv and Claims. To guaranty Developer's compliance with the terms of this
Hopcivil\liopkinsBlakeRetailPUDAgreement.10.31.12 11
Development 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 issuance of a building permit to
Developer. 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 construction of the Improvements. The amount of such
Security for the Public Improvements to be constructed by Developer, other than landscaping
improvements, shall equal 150 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
Hopcivii\IopkinsBIakeRetaiIPUDAgreement.10.31.12 12
Paragraph 8 of this Development Agreement including replacement of any defective or
nonconforming 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 Development 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 fifty percent (150%) 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
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 13
reduced, and shall be maintained at its original amount until one (1) year after completion of such
landscaping improvements. The City may draw upon or enforce the Security for any violation of
the terms of this Development 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 Development 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 Development 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
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 14
Security to pay or reimburse the City for any cost, expense or damages recoverable under
Paragraph 15 of this Development 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 Development Agreement.
15. Enforcement of Development Agreement. The terms, conditions, requirements
and restrictions established by this Development Agreement shall be enforceable exclusively by
the parties to this Development 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 Development 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 Development 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 or the City under
this Development 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 Development 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 Development Agreement or the
completion of construction of the Public Improvements required to be
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 15
completed by Developer under this Development Agreement or any
amendment thereto.
e. Any other remedy or sanction provided by Minnesota Statutes or the
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 Development
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 Development 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 Development 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 Development 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 Development Agreement, the City,
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 16
may, at its option, initiate and prosecute an action to specifically enforce the performance of the
terms, conditions and restrictions established by this Development Agreement. No remedy
specified in this Development Agreement is 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 Development 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 Development 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 Development 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 Development 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:
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 17
To Developer: Hopkins Blake Retail, LLC
1508 Welland Avenue
Minnetonka, MN 55305
Attn: Steven Johnson
To City: City of Hopkins
1010 First Street South
Hopkins, MN 55343
Attn: City Manager
Any parry 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 Development 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
Development Agreement are for convenience of reference only and shall not influence its
construction.
19. Execution of Counterparts. This Development 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 Development Agreement shall be construed and enforced in
accordance with the laws of the State of Minnesota.
21. Evidence of Title. Recordation of Development Agreement, Mortgagee's
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 18
Protection. Prior to the execution of this Development 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
Development Agreement, and shall otherwise be reasonably acceptable to the City Attorney, it
being understood that this Development Agreement, when recorded, shall have priority over any
mortgage or similar lien encumbering the Real Property. Developer shall cause this
Development 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 Development 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
Development 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
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 19
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
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 Development
Agreement as of the date and year first above written.
STATE OF
COUNTY OF
Developer
HOPKINS BLAKE RETAIL, LLC
By
Its
ss.
The foregoing instrument was acknowledged before me this day of
2012, by ,
the , of Hopkins Blake Retail, LLC, a limited liability company
under the laws of the State of Minnesota, on behalf of the limited liability company.
Notary Public
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 20
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\HopkinsBlakeRetailPUDAgreement.10.31.12 21
EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
Lot 1, Block 1, Knollwood Crossings, according to the recorded plat thereof, and Tract B
Registered Land Survey No. 1805, Hennepin County, Minnesota.
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 22
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. Exterior Fences. Signs and Setback Requirements. Exterior fences, signs and setback
requirements shall be the same as applicable in the underlying B-4 zoning district, with the
following modifications and exceptions:
a. "Solid" type fencing is required by the zoning code. "Non -solid" or "decorative"
fencing shall be permitted in the PUD overlay zone along the easterly property
line of the Real Property in the locations shown in the approved Plans. The final
design and materials for such fencing shall be approved by City staff.
b. The length of the Real Property frontage along Blake Road may be taken into
account in calculating the allowed total square footage of exterior signs for the
entire Real Property.
C. The minimum side yard setback in B-4 zoning districts is 10 feet. A side yard
setback of 0 feet will be permitted along the westerly property line facing Blake
Road.
IV. Design Standards.
The following design standards shall apply to the improvements constructed on the Real
Property:
a. The exterior building elevations on the west wall of the building facing Blake
Road shall be as shown in the approved building elevations prepared by Jamdal
Architects, LLC, dated October 18, 2012, and shall include three areas of "spandrel"
glazing, as shown on such building elevations. All other glazed areas shall be of clear
glass.
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 23
b. Following completion of the improvements on the Real Property, two outdoor
bicycle racks providing space for 5 bicycles each shall be maintained on the Real Property
in a location reasonably convenient for bicycle parking.
C. The exterior materials, finishes, facades and other design elements of the
buildings constructed on the Real Property shall be in accordance with the Architect's
Plans, Specifications and Elevations therefore submitted to and approved by the City
Council in its Resolution No. 12-79 approving the site plan for development of the Real
Property.
Hopcivil\HopkinsBlakeRetailPUDAgreement.10.31.12 24
certain mortgage, dated
MORTGAGEE'S CONSENT
a , the mortgagee named in that
(the "Mortgage"), which Mortgage was recorded
as Hennepin County
Document No.
hereby consents to the foregoing PUD/Development Agreement and agrees
that the Mortgage shall be subject and subordinate to said PUD/Development Agreement.
STATE OF
)SS
COUNTY OF
Its
The foregoing instrument was acknowledged before me this
2012, by
and
of a
laws of , on behalf of the
Notary Public
HopciviN-IopkinsBlakeRetaiIPUDAg Bement.10.31.12 25
day of
the
the
under the