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HomeMy WebLinkAbout2005-09-15 CA Ltr to OPHECKBERG ANI LAMMERS Mr. Eric A. Johnson City Administrator City of Oak Park Heights 14168 Oak Park Boulevard North P. O. Box 2007 Oak Park Heights, Minnesota 55082 Dear Eric: MTVisdb Enclosure SEP 1 6 2005 Re: Wal-Mart Expansion Writer's direct dial number: (651) 351-2118 September 15, 2005 Enclosed herewith for your review please find coyy--- 2005 and enclosure received from Fredrikson & Byron, P.A,-Tf you regarding this correspondence, please do not hesitate t9 me You very tr Mark J. Vierling 1809 Northwestern Avenue, Suite 110 Stillwater, Minnesota 55082 (651) 439-2878 Fax (651) 439-2923 www.eckberglammers.com tter dated September 12, h e any questions rectly. ECKBERG, LAMMERS. BRIGGS, WOLFF 6 VIERLING, PLLP Family Law 1 Divorce • Business and Commercial Law • Criminal Law • Personal Injury 1 Wrongful Death Estate Planning 1 Probate • Real Estate • Land Use Law • Mediation • Municipal Law • Civil Litigation James Lammers Robert Briggs Mark Vierling Thomas Weidner Susan Olson David Snyder Sean Stokes Balers Heeren Laura Domagala Joshua Christensen September 12, 2005 Mark J. Vier ling, Esq. Eckberg, Lammers, Briggs, Wolff & Vier ling, P.L.L.P. 1809 Northwestern Avenue Suite 110 Stillwater, MN 55082 Re: Wal-Mart -- Oak Park Heights, MN Dear Mark: C This letter follows-up on our recent telephone conversation regarding the approved expansion of the Wal-Mart store in Oak Park Heights, Minnesota. First, this is to confirm that in the event that the letter of credit issued by JP Morgan Chase is not renewed by the issuer and the letter of credit is not replaced by Wal-Mart, the City of Oak Park Heights is entitled to draw against the Letter of Credit prior to its expiration date. Note that the issuer is providing 60 days notice prior to cancellation. Secondly, enclosed is my client's only original executed copy of the Development Agreement. You asked that 1 forward this Development Agreement to you and stated that the City would record the Development Agreement (dated May 5, 2005) when the plat has been recorded. Please provide me with evidence that the Development Agreement has been recorded. Please also provide me with a copy of the Conditional Use Permit. Again, thanks for your assistance on this project. If you have any questions or if I have misstated our agreement with respect to recording the Development Agreement, please let me know right away. Susan D. S einwall Attorney at Law Direct Dial: 612.492.7171 Email: ssteinwall@fredlaw.com SDS:jcs:#3168481\i Enclosure cc: John Okwubanego (w/o enc.) Attorneys & Advisors main 612.492.7000 fax 612.492.7077 wwvv.fredlaw.com MEMBER OF THE WORLD SERVICES GROUP A Worldwide Network of Professional Service Providers Fredrikson & Byron, P.A. 200 South Sixth Street, Suite 4000 Minneapolis, Minnesota 55402-1425 OFFICES Minneapolis, London, & Monterrey, Mexico WITNESSETH; (the "Subdivision"); and, CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY, MINNESOTA DEVELOPER'S AGREEMENT Wal-Mart 2 nd Addition See Attached Exhibit A t» THIS DEVELOPER'S AGREEMENT (the "Agreement") is made and entered into this 5 day of ) 40.9.. 91 , .2005, by and between the City of Oak Park Heights, a municipal corporation under tlie laws of the State of Minnesota (the "City"), and Wal-Mart Real Estate Business Trust, a Delaware statutory trust (the "Developer"). WHEREAS, the Developer has made application to the City Council for approval of an Amended Conditional Use Permit and Variance, Subdivision and Lot Combination, site plan and Design Guidelines review to facilitate a planned expansion of an existing Wal-Mart store (the "Development Project") affecting lands within the corporate limits of the City described as follows: WHEREAS, the Developer, if it determines to construct the Development Project, does not intend to do so until some time in 2006; and WHEREAS, the City Council has on March 8, 2005, granted approval to the Subdivision, amended conditional use permit for outdoor sales and storage, sign conditional use permit and variance, and Site Plan/Design Guidelines review on the condition that the Developer enter into this Agreement stipulating the conditions for the installation of street, water, sewer and other public improvements as well as the development of on-site improvements hereinafter described, all in accordance with the terms and conditions hereinafter set forth, if the Developer determines to construct the Development Project as evidenced by commencement of construction after receipt of a building permit from the City. NOW, THEREFORE, in consideration of the premises and of the mutual promises and conditions hereinafter contained, it is hereby agreed as follows: Designation of Improvements: Improvements to be installed at Developer's expense by the Developer as hereinafter provided are hereinafter referred to as "Plan A Developments". Improvements to be installed by the City and paid for by Developer are hereinafter referred to as "Plan B Improvements". 1. PLAN A IMPROVEMENTS: If the Developer commences construction of the Development Project, the Developer will construct at Developer's expense the following improvements under Plan A according to the following terms and conditions: A. The Developer shall do all site grading, coznnzon greenway and open spaces, storm water storage ponds, surface drainage ways and all private driveways, including sodding of boulevards, all in accordance with the approved grading, drainage and site plan. A grading plan with maximum two (2) foot contours, pad elevations, drainage provisions, erosion control provisions and cross sections, as necessary, shall be submitted to and approved by the City prior to commencement of any site grading. Any changes to the grading plan during construction shall be submitted to the City for approval. The building site must conform to the grading plan approved by the Building Inspector of the City of Oak Park Heights prior to a building permit being issued. B. The Developer shall control soil erosion ensuring: 1. All development shall conformi to the natural limitations presented by the topography and soil of the Subdivision in order to create the best potential for preventing soil erosion. The Developer shall submit an erosion control plan, detailing all erosion control measures to be implemented during construction, said plan shall be approved by the City prior to the commencement of site grading or construction. 2. Erosion and siltation control measures shall be coordinated with the different stages of development. Appropriate control measures as required by the City Engineer shall be installed prior to development and as may be necessary to control erosion. 3. Land shall be developed in increments of workable size such that adequate erosion and siltation controls can be provided as construction progresses. The smallest practical area of land shall be exposed at any one period of time. 4. Where the topsoil is removed, sufficient arable soil shall be set aside for respreading over the developed area. The topsoil shall be restored to a depth of at least four (4) inches and shall be of a quality at least equal to the soil quality prior to development. 5. The Developer shall not locate its equi.pmnent within the right-of-way of 58 Street as acquired by the City of Oak Park Heights adjacent to this development without the express written consent of the City Engineer. C. The Developer shall place iron monuments at all Lot and Block corners and at all other angle points on the boundary lines. Iron monuments shall be replaced after all street and lawn grading has been completed in order to preserve the Lot markers. D. The Developer shall be responsible for maintaining the location of and protecting curb stops, water services and sewer services. Any service or curb stop damage shall be repaired or replaced as specified by the City. The Developer shall make all necessary adjustments to the curb stops to bring them flush with the topsoil (after grading) or driveway surface. E. The Developer shall be required to provide landscaping and screening as required by the ordinances of the City. Final landscaping plans must be submitted to the office of the City Planner for approval. F. The Developer shall be responsible for street maintenance, including curbs, boulevards, sod and street sweeping until the project is complete. All streets shall be maintained free of debris and soil until the subdivision is completed. Warning signs shall be placed when hazards develop in streets to prevent the public from traveling on same and directing attention to detours. The repair of any damage done to the streets or public utilities by Developer or any of its Contractors or Subcontractors, shall remain the financial responsibility of the Developer. G. The Developer shall furnish site lighting in accordance with the City Ordinance requirements. General Requirements: H. The Developer shall dedicate and survey all drainage and storm water holding ponds as required by the City as shown on the final plat. The Developer shall be responsible for ston sewer cleaning and holding pond dredging as required by the City prior to completion of the development. The City of Oak Park Heights is requiring Developer to dedicate storm water drainage areas and on -site holding ponds to serve Developer's project. Such areas are incorporated within the drainage easement depicted on the final plat. The Developer shall be responsible for securing all necessary approvals and permits from all appropriate federal, state, regional and local jurisdictions prior to the commencement of site grading or construction and prior to the City awarding construction contracts for public utilities. The Developer shall secure the appropriate MnDOT access permits for the two (2) accesses onto the MnDOT Frontage Road, if necessary. J. Drainage and Utility Easements. 10 foot drainage and utility easements shall be provided along all lot lines as shown on the final plat. K. Tree Protection and Clearing: The Developer must have the City Arborist or a person under her designation providing on -site supervision and direction during the clearing process. Prior to the clearing operation being initiated, all clearing limits and trees to be protected shall be clearly marked. Tree protection fencing shall be installed and maintained until after grading is complete. All fencing shall be installed at least twenty ( feet distant from the trunks of large shade trees (deciduous) and around coniferous trees no closer than the drip line. Silt fencing may not be used as a substitute for tree protection fencing. Fencing shall be orange in color with steel posts at 6 -8 foot intervals. The City Arborist shall be contacted by Developer for an inspection after the fencing is installed. All tree replacement fees due the City pursuant to the City Tree Protection ordinance following shall be paid within twenty (20) business days following the Arborists certification of amounts due. The tree replacement fees will be determined by the City Arborist.' O. Warranty of Title. By its execution hereof Developer hereby warrants and represents that it has the exclusive and marketable fee title to the subject property and that Retail Trust IV owns the building now situated on the Property, such building is subjeet to a sale - leaseback with the Developer. Developer further warrants and represents that there are no liens or encumbrances against the title and that it is fully authorized to execute this Agreement as the fee owner of the subject lands. P. Fire Hydrants. All fire hydrants throughout the development shall incorporate an AFC - Waterous Storz Nozzle. The hydrant pumper nozzle shall be of one -piece design, corpatable with a five inch Storz hose coupling. The nozzle shall be an integral part of the fire hydrants and must be furnished by the manufacturer or authorized distributor designated by the manufacturer. Storz adapters will not be accepted. A. ESCRIPTION OF PLAN A IMPROVEMENTS Site Work (Grading, Soil Erosion Control, Landscaping and Demolition) 4 ESTIMATED COST 925,000.00 B. Utilities (Sanitary Sewer, Water Main, Small $ 175, 000.00 Utility Extensions) C. Paving and Parking Lots $ 1,400,000.00 D. City Inspection of Utilities $ 1.9,000.00 TOTAL ESTIMATED CONSTRUCTION $ 2,519,000.00 COST OF PLAN A IMPROVEMENTS: ESTIMATED ENGINEERING, LEGAL AND $ 503,800.00 ADMINISTRATIVE (20%) Will have to be computed after the tree inventory is done, presumably after the building permit is applied for. TOTAL ESTIMATED CONSTRUCTION COST OF PLAN A IMPROVEMENTS: SECURITY REQUIREMENT (?5 %) TOTAL PLAN A ESCROW (Wal-Mart 2" Addition) 5 755,700.00 3,0 2,800.00 3,778,500.00 3 CONSTRUCTION OF PLkN A IMPROVEMENTS. (WTai-Mart 2nd Addition) A. Construction. The construction, installation, materials and equipment shall be in accordance with the plans and specifications approved by the City. B. Inspection. All of the work shall be under and subject to the inspection and approval of the City and, where appropriate, any other governrnental agency having jurisdiction. C. Faithful Performance of Construction Contracts. The Developer will fully and faithfully comply with all terms and conditions of any and all contracts entered into by the Developer for the installation and construction of all Plan A Improvements and hereby guarantees the workmanship and materials of the Plan A Improvements for a period of one (1) year following the City's final acceptance of the Plan A Improvements. Prior to issuance of a building permit for the Development Project, Developer or its general contractor shall provide a Performance bond or letter of credit to the City of Oak Park Heights in a form to be approved by the City Attorney, guaranteeing the performance by Developer of the construction of Plan A hnprovements in a timely and proper manner. Additionally, Developer guarantees and agrees that, should the City of Oak Park Heights need to apply a claim against said Performance bond or letter of .credit, that Developer shall pay all reasonable attorney's fees and administrative expenses associated with said action, as detailed on appropriately descriptive invoices. Prior to making any claim against the Performance bond or letter of credit, the City shall first give the Developer not less than 15 days advance written notice of any deficiency and opportunity to cure any such deficiency within not less than 15 days. D. Letter of Credit /Performance Bond Term and Amount. The Performance bond or letter of credit securing the performance of the Plan A Improvements shall be issued for an initial period of time not less than one (1) year in duration and shall be renewed for additional periods at the request of the City until the Plan A Improvements are complete. The amount of the letter of credit or performance bond shall be the actual amount to construct the Plan A improvements based on actual bids received by the Developer (which have been reviewed and approved by the City Engineer) plus 20% to cover the City's estimated engineering, legal and administrative expenses plus an additional 25% security requirement, all as set forth in Paragraph 2, above. 4. PLAN B IMPROVEMENTS. The following Plan B Improvements will be installed by the City at the Developer's expense according to the following terms and conditions, and as further described in the attached Exhibit B. DESCRIPTION OF PLAN B IMPROVEMENTS ESTIMATED COST (WaI-Mart 2nd Addition) A. Sanitary sewer B. Water main C. Storm Sewer Improvements $ D. Street Improvements 5 E. Erosion Control $ F. Restoration 5 TOTAL ESTIMATED CONSTRUCTION COST OF PLAN A IMPROVEMENTS: TOTAL ESTIMATED CONSTRUCTION COST OF PLAN B IMPROVEMENTS: 8,800.00 $ 13,000.00 9,400.00 47,200.00 2,600.00 1,000.00 $ 82,000.00 ESTIMATED ENGINEERING, LEGAL $ 16,400.00 AND ADMNISTRATIVE (20 %): $ 98,400.00 SECURITY REQUIREMENT (25 %) $ 24,600.00 TOTAL PLAN B ESCROW $ 200,0000.00 (Wa1Mart 2 Addition) 5. Prior to the City ordering the installation and awarding the contracts as it relates to the Plan B Improvements and the costs therefor, the Developer shall have deposited with the City of Oak Park Heights, the total estimated cost of the Plan 13 Improvements plus a security requirement related thereto for a total of Two Hundred- Thousand Dollars ($200,000.00) (the "Plan B Security ") and shall have also applied for a building permit. The City shall pay from said deposit all 6 expenses related to the construction of the Plan B Improvements providing for the construction of sane as follows A. Timing. The Developer shall deposit the Plan B Security with the City on or before Feb uary 9, 2006. Failure to so deposit security by that date will suspend this Agreement and require the parties to renegotiate the terns and conditions of this Agreement before any project will be allowed to proceed. Further, failure to deposit security by February 9, 2006 shall preclude the Developer from receiving a Building Permit for the Development Project until this Agreement has been successfully renegotiated between the parties. If the Developer deposits the Plan B Security on or before February 9, 2006, then the Developer shall have until September 9, 2006 to apply for a building permit and post Plan A Security. B. Construction. After the preparation of preliminary plans and estimates by the City, the City Council shall take bids on the projects and thereafter award the contract pursuant to law for the installation of the Plan B Improvements under the City's supervision. Upon receipt of the first bid tabulation, Developer shall be provided a copy thereof. The Developer shall have the right to notify the City of its demand that the City reject all bids. Such notice shall be provided within seven (7) business days after the City forwarding the Bid Tabulation to the Developer at the address provided herein. As it affects the first bid tabulation, the City shall honor the Developer's wish if made to reject all bids and thereafter proceed to a second bidding on the project. Subsequent bid tabulations may be commented upon by Developer but the City may award to the lowest responsible bidder of the project in the manner provided by law. C. Escrow. No work shall be commenced by the City under this Agreement until the Developer shall have filed with the City a cash deposit, certified check or Letter of Credit (in a form to be approved by the City Attorney) in the amount equal to the Plan B Security, i.e., Two Hundred Thousand Dollars ($200,000.00). The City shall have the right to apply against the Plan B Security all bills incurred by the City with regard to the Plan B Improvements, however, the City shall first provide the Developer with the opportunity to pay for said improvements as bills are incurred, in cash, rather than applying payments against the Letter of Credit provided to the City, if a Letter of Credit is used in lieu of a cash escrow by the Developer. In such case, the Developer shall have fifteen (15) business days after the time of submission of the hill by the City to the Developer to pay to the City such amount in cash so that the City can use the payment to pay the amount due in lieu of drawing down on the Letter of Credit or other escrow on deposit with the City of Oak Park Heights. D. Plans and Specifications. The Developer shall be provided with a copy of the plans and specifications as prepared by the office of the City Engineer for the Plan B Improvements and shall be allowed fifteen (15) business days to comment on the sane prior to final release of the bid specifications by the office of the City Engineer for purposes of receiving bids on the Improvements. The Developer shall also be notified of the bid opening date and be provided with 20 business days to comment on the bids received prior to the award of the bids on the Plan B Improvements. The Developer may recommend rejection of all bids and the rebidding of the project or any portion thereof; however, such recommendation is not binding on the City of Oak Park Heights and the City may award the contract based upon the bids received if it, in its absolute discretion, determines that the bids so received are reasonable. The Developer shall also be provided the opportunity to request that the City Engineer consider including certain contractors that the Developer might suggest to be added to the proposed bidder's list. Final deterrnination of the proposed bidders list shall rest in the discretion of the City Engineer. E. Ownership of Plan B Improvements and Easements. All such Plan B Improvements as constructed shall become the property of the City of Oak Park Heights. On or before recording of the final plat, the Developer shall dedicate to the City, at no cost to the City, all permanent or temporary easements necessary for the construction and installation of the Plan B Improvements as determined by the City and as described in the Plans. All such easements required by the City shall be in writing, and in recordable form, containing such terms and conditions as the City shall reasonably determine, other than any easements that are dedicated to the City by the plat. If the City wishes to proceed with installation of the Plan 13 Improvements prior to recording of the final plat, the Developer will provide necessary easements for the Plan B Improvements upon the City's request. F. Contracts. All such construction contracts awarded by the City of Oak Park Heights to construct the Plan B Improvements shall provide for a guarantee of the workmanship and materials for a period of one year following the completion of construction of the Plan B hnprovernen_ts. At all times during construction of the Plan B improvements, the City and its contractor shall keep open and maintain reasonable access for the public and the Developer, including its vendors and suppliers to Developer's Wal -Mart store. All such contracts shall also conform to the ordinances and specifications of the City in the construction of all Plan B Improvements. G. Change Orders. No change order increasing the contract expense shall be authorized by the City without first notifying Developer of the change. 8 H. Estimates. The above estimates are engineering projections only. Developer shall be responsible for all actual expenses incurred in the securing and installing of all Plan B hnprovements. The method of calculation of such costs shall be as specified by the City Engineer. 2005 Connection Charges. All connection charges and fees shall be paid by Developer. The City Engineer shall compute the connection fees as prescribed by ordinance /resolution as to this development upon receipt of a Building Permit and will advise the City Clerk as to the appropriate fee to be collected. Connection fees for all lots and blocks are due and payable upon issuance of a building permit for the Development Project and are as follows: 7. GENERAL; (On the Hasse Lands Acquired) Sanitary Sewer '19,029.45 Water $33,105.60 Storm Sewer $76,744.80 City annual adjustments to connection fees will apply to this project. 6. CASH ESCROW ACCOUNT. On or before the date when the Developer applies for a building permit, the Developer shall provide a cash escrow account to the City of Oak Park Heights in the amount of Twenty Two Thousand Dollars ($22,000.00) (less a credit for the cash escrow already on deposit with the City as of the date hereof) to reimburse the City of Oak Park Heights for previous billed expenses relating to this development and to be applied to City engineering and staff supervision expenses incurred through project completion. Following project completion as certified by the City Engineer, the City shall remit an itemized billing to the Developer for its services in supervision of this project and remit any excess escrow funds on hand or bill for any excess charges over the escrow on hand. A. Binding Effect. The terms and provisions hereof shall be binding upon and inure to the benefit of the heirs, representatives, successors and assigns of the parties hereto and shall be binding upon all future owners of all or any part of the Subdivision and shall be deemed covenants running with the land. References herein to Developer, if there be more than one, shall mean each and all of them. The Agreement, at the option of the City, shall be placed of record so as to give notice hereof to subsequent purchasers and encumbrances of all or any part of the Subdivision. All recording fees, if any, shall be paid by the Developer. 9 B. Final Plat Approval. The City has 'given final approval to the plat of the Subdivision (Wal -Mart 2nd Addition) upon execution and delivery of this Agreement, and of all required documents and security, subject to compliance with the Ordinances of the City and terms and provisions hereof, permits may be issued by the City. Developer shall use its best efforts to record the plat of Wal -Mart 2nd Addition on or before December 31, 2005, and in all events shall provide the City with proof of such recording prior to the City's issuance of a building permit. C. incorporation by Reference. All plans, special provisions, proposals, specifications and contracts for the improvements furnished and let pursuant to this Agreement shall be and hereby are made a part of this Agreement by reference as fully as if set out herein in full. Specifically the following Planning Reports and Engineering files and final documentation approved by the City Planner and the City Engineer are specifically incorporated by reference herein and included herein as if originally made part of this Agreement. February 3, 2005 — Report of Northwest Associated Consultants, Inc., Oak Park Heights - Wal -Mart Expansion, Amended Conditional Use Permit, Sign Conditional Use Permit, and Variance, Subdivision and Site PlanlDesign Guidelines Review, File No. 798.02-04.16. February 7, 2005, Plan Review Storm Water and Traffic Issues - Report of the City Engineer, Bonestroo, Anderlik, Rosene & Associates. City Council Minutes of March 8, 2005. D. Amended C.U.P. Permit. The City of Oak Park Heights shall file the Amended C.U.P. Permit of record concurrent with the recording of the final plat in the office of the County Registrar of Titles. E. Administrative and Miscellaneous Expenses. As to any and all administrative, legal or engineering costs which the Developer is expected to pay to the City of Oak Park Heights, which costs may be offset against the Performance bond or Letter of Credit (for both the Plan A and Plan B Improvements) which the Developer has filed and provided to the City of Oak Park Heights, the Developer shall be given the opportunity to review and comment on such costs prior to the application by the City of Oak Park Heights to the bonding company or financial institution for the payment of same. Should the Developer dispute the reasonableness of any of the City's charges, Developer shall have the right to submit any such dispute to arbitration at Developer's sole and exclusive expense. Arbitration shall be conducted by the American Arbitration Association and shall be initiated and paid for by Developer. F. Establishment of Construction Schedules. Following the deposit of the required security for the Plan B Improvements, the City Engineer shall establish construction schedules for Plan B Improvements and shall consult with Developer prior to establishing same, but shall not be required to commence construction of Plan B Improvements until Developer has applied for a building permit. Similarly, in order to coordinate Plan A and Plan B Improvements the City Engineer shall review and approve construction schedules for the Plan A Improvements prior to Developer commencement of Plan A Improvements. G. Zoning. Wal -Mart 2nd Addition has been designated a zoning classification of B -2 by the City Council. All future use and development shall comply with the applicable provisions of the relevant zoning ordinance of the City of Oak Park Heights relating thereto. In addition thereto the City Council has approved and imposed the following requirements: Amended conditional use permit to allow open and outdoor sales and outdoor storage (includes seasonal garden center, temporary semi and shipping container storage, and remote drive through pharmacy) . Subdivision/Lot Combination. Sign Conditional Use Permit and Variance. 6 Site Plan/Design Guidelines Review. The foregoing is subject to the following conditions, all as set forth in the amended Conditional Use Permit: 1. The final plat and all required easements shall be subject to review and approval of the City Engineer and City Attorney. 2. All access to Norell Avenue shall be subject to review and approval of the City Engineer. 3. There shall be no drive entrance to the applicant's land extending south from the cul -de -sac terminus of Norwich Avenue North (as projected to be built as part of this project). Rather, the driveway access shall be extended due west from the cul- de-sac terminus of Norwich Avenue North to the applicant's property. The applicant shall extend the sidewalk/pathway east from the front of its store to the eastern boundary line in a manner approved by the City P1 arm er. 4. A plan for a crosswalk on Norell Avenue and sidewalk access to the front of the Wal -Mart store shall be provided by the applicant subject to review and approval of the City Engineer. 5. All parking shall comply with the minimum dimensional standards of the Zoning Ordinance subject to review and approval of the City. 6. All lighting shall comply with the minimal standards of the Zoning Ordinance for height, type of fixture, and foot candle levels. 7. The landscape plan is subject to review and approval of the City Arborist. 8. The applicant shall provide the proposed eight (8) foot wood fence and landscaping to fully screen the truck loading and outdoor storage area subject to review and approval of the City. 9. Wheeled semi - trailers shall not be stored on site. Exterior storage shall be limited to shipping containers within designated areas as approved by the City. 10. The grading, drainage and erosion control plans are subject to review and approval by the City Engineer and applicable watershed district. 11. The utility plans are subject to review and approval of the City Engineer. 12. The front elevation sign that reads "We Sell For Less" be removed from the allowable signage. The "Low Prices" sign shall be changed to read "Retail Center." The "Liquor" sign shall not be red in color but shall be a color consistent with the other wall signage. 13. No signage shall be allowed on the south building elevation other than directional and informational signage as allowed in the Zoning ordinance. 14. One freestanding monument sign shall be allowed on site that shall be conforming with all provisions of the Zoning Ordinance. The existing pylon sign shall be removed. 15. All trash/recycling activities shall be totally contained within the building or enclosures. There will be no outside dumpster storage. Trash and recycling material pickup shall be limited to the hours between 7:00 AM and 9:00 PM. The City Council reserves the right of future review and modification to all trash, recycling and trash compactor issues. 16. The applicant shall provide adequate screening, subject to review and approval of the City, of all roof mechanical equipment. The roof equipment shall be painted to match the facade colors. 17. The Planning Commission is favorable to the proposed building architecture, mater selection, and colors and the City Council hereby finds the design consistent with the City's Design Guidelines. 18. The area identified on the submitted site plan as "gas lease area" shall be deleted and replaced with grass and landscaping. An Amended Conditional Use Permit with a revised site plan will need to be applied for and approved by the City Council before allowing any automotive fuel station operations on the site. 19. All automobile repair activities shall be limited to within the principal structure and the door to the service bays shall be kept closed except when vehicles are being moved in or out of service areas. 20. There shall be no exterior storage of automobile parts, parked cars, or related items on the site, but used batteries may be stored as per MPCA guidelines in an outside enclosure as shown on the site plans. All other storage shall be internal to the building. Any cars to be stored outside of the building shall be in full working order and properly licensed. 21. All noise created from automotive repair operations on the site shall be in conformance with Section 401.15.B.11 of the Zoning Ordinance. No outdoor speaker systems for the automotive repair operation shall be allowed. 22. The applicant shall receive and retain, if required, a Hazardous Waste Generators License for batteries, oil and tires from Washington County for the Tire and Lube Express. 23. The Tire and Lube Express operation may not accept new customers for service between the hours of 10:00 PM and 6:00 AM. 24. The applicant shall provide battery and oil recycling programs as part of the Tire and Lube Express for small volume generators. 25. A condition of this approval is that the Applicant enter into a Development Agreement as prepared by the City Attorney and In the presence of approved by the City Administrator containing provisions including, but not limited to, the construction and placement of financial security for site improvements, payment of city connection and park dedication fees, placement of financial security and requirements for extension and construction of City utilities for the site and related water sanitary sewer and stone sewer improvements. H. Street Grades. The grades of all streets shall not exceed eight percent (8%) and the minimum grade shall not be less than one -half percent (.5%). Handicapped Parking. Location of disability/handicapped stalls shall be made more efficient with regard to serving all of the areas of the proposed facility. All eighteen (18) disability stalls currently shown as oriented to the north half of the parking lot directly across from the grocery store will be re-distributed throughout the entire parking complex to provide reasonable handicapped access throughout the retail center. The applicant will be required to revise the site plan to provide, at a minimum, four (4) disability stalls in the southern half of the parking lot across from the retail strip center. IN WITNESS WHEREOF, the City and Developer have caused this Agreement to be duly executed on the date and year first above written. 14 CITY OF OAK PARK HEIGHTS By 1 Its Eric Jo . s:' , Administrator WAL-Wpi BURT), S T i AL ESTATE T ST - ._ -- jBad Shannahan Assistant Vice President al-Mart Le al Team In the presence of: STATE OF MINNESOTA COUNTY OF WASHINGTON ) ss. On this 6 1-it ! 4 h day of Ma 2 005 before me a Notar r Public, within and for said County personally appeared David Beaudet and Eric Johnson, to me personally known, being each by me duly sown did say that they are respectively the and the Administrator the municipal corporation named n tore oiin instrument• of the City of Oak Park Heights, tie p rp g and that the seal affixed to said instrument is the corporate seal of said corporation, and that said instrument was signed and sealed on behalf of said municipal corporation by authority of its City Council and said t and Administrator acknowledged said instrument to be the free act and IA A- deed of said municipal orporation. JULIE R. JOHNSON NOTARY PUBLIC o MINNESOTA My Commission Expires Jan. 31 2010 • 15 r F! Npjary Public f u{ STATE OF ARKANSAS COUNTY OF BENTON on this ti ;:. s hay of , 2005, before me a Notary Public, within and for said County personally appeare Barry Shannahan to me personally known by me duly sworn did say that he is the Assistant Vice President of Wal -Mart Real Estate Business Trust, a Delaware statutory trust, the Developer named in the foregoing instrument; and that said instrument was signed and sealed on behalf of said trust. i 43096753/8 Mark Jr. Vierling Eekberg, Lammers, Briggs, Wolff and Vierling, P.L.L.P. 1835 Northwestern Avenue Stillwater, MN 55082 ( 439-2878 ss. THIS INSTRUMENT WAS DRAFTED BY: 16 Atni/ Notar Public 5 r 1/4,„..„„,,,,,,s,,,„„,,,,,..,,,,,,„,,c,,,...„._.•...,.,,,,N;. fl NOTARY SEAL " Karen D. Milligan, an, Notary Public Washington County, State of Arkansas My Commission Expires 10/30/2008 Lot Three (3), Block (1), WAL -MART ADDITION, except that portion of Lot 3, Block 1, lying West and North of the following described line: Commencing at the Northwest corner of said Lot 3; thence on an assumed bearing of South 89 degrees 39 minutes 42 seconds East, along the north line of said Lot 3, a distance of 32.89 feet to the point of beginning; thence South 07 degrees 41 minutes 33 seconds West 4 8.6 6 feet; thence North 89 degrees 38 minutes 21 seconds West 26.68 feet to the intersection of the westerly line of said Lot 3, and said line there terminating. AND Exhibit "A" Legal Description Wal -Mart 2nd Addition Oak Park II MN Wal -Mart fornnerly described as: That part of Lot 2, Block 1, Wal -Mart Addition according the recorded plat thereof, files of the Registrar of Titles, Washington County, Minnesota, described as follows: Commencing at the northeast corner of said Lot 2, thence on an assumed bearing South 01 degree 52 minutes 03 seconds East, along the east line of said Lot 2, a distance of 18.48 feet to the point of beginning; thence North 89 degrees 38 minutes 22 seconds West 70.05 feet; thence South 01 degrees 52 minutes 03 seconds East 50.00 feet; thence North 88 degrees 07 minutes 57 seconds East 25.00 feet; thence South 01 degree 52 minutes 03 seconds East 150.00 feet; thence South 24 degrees 35 minutes 55 seconds West 78.40 feet to a point on the south line of said Lot 2 distant 80,00 feet west of the southeast comer of said Lot 2; thence easterly along said line 80.00 feet to the southeast corner of said Lot 2; thence northerly along the east line of said Lot 2, a distance of 270.54 feet to the point of beginning. AND Lot Four (4), Block One (1), WAL -MART ADDITION, According to the plat on file and of record in the office of the Registrar of Titles, in and for the County of Washington and the State of Minnesota. (Certificate No. 54938) AND OUTLOT A, HAASE ADDITION Item NO. 1 SANITARY SEWER. 8" PVC Sanitary Sewer 4.0' Diameter MH TOTAL SANITARY SEWER WATER MAIN 3 8" DIP CL. 52 Water Main 4 8" Gate Valve and Box 5 Hydrant TOTAL WATER MAIN ROAD IMPROVEMENTS 10 Mobilization 11 Remove existing bituminous 12 Common Excavation 13 Cl. 5 Aggregrate Base 14 Bituminous Base Course 15 Bituminous Wear Course 16 Concrete Curb and Gutter TOTAL ROAD IMPROVEMENTS EROSION CONTROL 17 Protection at inlets 18 Silt Fence 19 Street Sweeping TOTAL EROSION CONTROL RESTORATION 20 Seeding and Mulch TOTAL RESTORATION Exhibit "B" WAL-MART Ilan B Improvements Quantities — Estimated Costs 3/18/2005 Item STORM SEWER 6 12" RCP Storm. Sewer 7 2' x 3' CB with casting and rings 8 4' Dia. CBMH with casting and rings 9 12" Flared End Section with trash guard TOTAL STORM SEWER ESTIMATED CONSTRUCTION COSTS TOTAL SANITARY SEWER TOTAL WATER MAIN TOTAL STORM SEWER TOTAL ROAD IMPROVEMENTS TOTAL EROSION CONTROL TOTAL RESTORATION TOTAL ESTEVIATED CONSTRUCTION COST Unit LF EA LF EA EA LF EA EA EA LS SY CY TN TN TN LF EA LF I-IR Quantity Unit. Price Total Price 340 $20.00 1 82,000.00 $6,800.00 $2,000.00 $8,800.00 390 824.00 $9,360.00 2 8950.00 $1,900.00 1 81 ,700.00 $1,700.00 812,960.00 180 $23.00 1 82,000.00 1 82,300.00 1 81,000.00 1 82,000.00 711 85.00 480 $5.00 790 $15.00 131 870.00 131 875.00 700 812.00 2 640 10 $100.00 82.50 880.00 $4,140.00 $2,000.00 $2,300.00 81,000.00 59,440.00 $2,000.00 83,555.00 82,400.00 $11,850.00 89,170.00 89,825.00 88,400.00 547,200.00 $200.00 51,600.00 8800.00 52,600.00 AC. 0.35 82,800.00 8980.00 $980.00 88,800.00 812,960.00 $9,440.00 547,200.00 52,600.00 5980.00 581, 980.00