HomeMy WebLinkAbout2005-10-13 City Administrator Memo to City Finance DirectorCity of Oak Park Heights
14168 Oak Park Blvd. N a Box 2007 • Oak Park Heights, MN 55082 • Phone (651) 4394439 • Fax (651) 439-0574
October 13, 2005
MEMO
TO: Judy Hoist, Finance Director
FROM: Eric Johnson, City Administrator
RE: Wal-Mart Expansion
Attached to this memo are three documents:
1) Original Letter of Credit (JP Morgan Chase) securing the City's Plan B Improvements, the
expiration date is 8/24/07. Please file for appropriate for future use.
2) An escrow check in the amount of $22,000 (per Part 6 of the Developer's Agreement) securing the
City's costs for consulting fees, attorney's fees, etc. Please deposit such funds in the accounts you
deem appropriate.
3) A copy of the Developer's Agreement.
JPMorgan Chase Bank, N.A.
c/o JPMorgan Treasury Services
Global Trade Services
10420 Highland Manor Drive
Tampa, FL 33610
TO:
CITY OF OAK PARK HEIGHTS
14168 OAK PARK BLVD NORTH
OAK PARK HEIGHTS, MN 55 082
WE ENCLOSE HEREWITH (AS A PERMANENT PART OF THIS LETTER OF CREDIT) AN
IRREVOCABLE STANDBY LETTER OF CREDIT OPENED IN YOUR FAVOR SUBJECT TO I SP98
TRAN SAC T I ON REFERENCE NUMBER:
DATE AND PLACE OF EXPIRY:
DOCUMENTARY CREDIT AMOUNT:
AUTO EXTENSION:
EXTENSION PERIOD:
NOTIFICATION PERIOD:
FINAL EXPIRY DATE:
190139 U070495
JPMor anChase
L5LS-694415
AUGUST 24, 2006
AT OUR COUNTER
USD2 00,000.00
YES
12 MONTH (S)
60 DAY(S)
AUGUST 24, 2 007
AUG 31, 2005
OUR L/C N❑.: L5LS-694415
APPLICANT REF. NO.: 1861
APPLICANT:
WAL—MART REAL ESTATE BUSINESS TRUST
2001 SE 10TH STREET
BENT❑NVILLE, AR 72716 - 0550
THIS LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
PLEASE REVIEW THE DETAILS OF THIS ENCLOSURE AND THE ATTACHED LETTER OF
CREDIT IMMEDIATELY AND CONTACT OUR CLIENT SERVICE GROUP AT THE TELEPHONE
NUMBER OR E —MAI L ADDRESS PROVIDED WITHIN THE LETTER OF CREDIT IF YOU HAVE
ANY QUESTIONS.
AUTHOR S I GNATURE
Page 1 of 1
JPMorgan Chase Bank, N.A.
c/o JPMorgan Treasury Services
Global Trade Services
10420 Highland Manor Drive
Tampa., FL 33610
APPLICANT
WAL-MART REAL ESTATE BUSINESS TRUST
2001 SE 10TH STREET
BENTONVILLE , AR 72716 - 0550
BENEFICIARY
CITY OF OAK PARK HEIGHTS
14168 OAK PARK BLVD NORTH
OAK PARK HEIGHTS, MN 55082
ATTN ERIC JOHNSON
PHONE 651 - 439 -2582
JPMor anChase �
2. THE ORIGINAL OF THIS LETTER OF CREDIT
SPECIAL CONDITIONS:
PARTIAL DRAWINGS ARE ACCEPTABLE.
AUG 31, 2005
OUR L/C NO.: L5LS- 694415
APPLICANT REF. NO.: 1861
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. L5LS-
6 9 4 415 IN YOUR FAVOR, AS BENEFICIARY, BY ORDER AND FOR ACCOUNT OF WAL-MART
REAL ESTATE BUSINESS TRUST, ATTN: LETTER OF CREDIT MANAGER, DEPT. 9382,
2001 SE 10TH STREET, BENTONVILLE , AR 72716 - 0550 UP TO THE AGGREGATE SUM OF
TWO HUNDRED THOUSAND AND NO /100 U.S. DOLLARS (USD200,000. 00), EXPIRING ON
AUGUST 24, 2 ❑ ❑ 6 EXCEPT AS FURTHER S TA.TE D , AT THE COUNTERS OF JPMORGAN
CHASE BANK, N.A., 333 S. GRAND AVENUE, SUITE 3600, LOS ANGELES, CA 90071,
AVAILABLE BY PAYMENT AGAINST YOUR DRAFT (S) DRAWN ON JPMORGAN CHASE BANK,
N.A., Al SIGHT ACCOMPANIED BY:
1. A NOTARIZED STATEMENT PURPORTEDLY SIGNED BY AN AUTHORIZED OFFICIAL OF
CITY ❑ F OAK PARK HEIGHTS, STATING THAT : THE FUNDS DRAWN UNDER IRREVOCABLE
STANDBY LETTER OF CREDIT NO L5LS- 694415 ISSUED BY JPMORGAN CHASE BANK,
N . A . ARE DUE BY REASON OF WAL -MART REAL ESTATE BUSINESS TRUST FAILURE TO
PAY FOR THE PLAN B PUBLIC IMPR ❑VMENTS AS AGREED TO IN THE DEVELOPER'S
AGREEMENT DATED MAY 5, 2005 BY AND BETWEEN CITY OF OAK PARK HEIGHTS AND
WAL-MART REAL ESTATE BUSINESS TRUST FOR WAL-MART STORE 1861 IN OAK PARK
HEIGHTS, MINNESOTA, AND
190140 U070495 Page 1 of 3
,TPMorgan Chase Bank, N.A.
c/o J PMorgan Treasury Services
Global Trade Services
10420 Highland Manor Drive
Tampa, FL 33610
JPMorganChase
AUG 31, 2005
OUR L/C NO.: L5LS- 694415
APPLICANT REF. NO.: 1861
IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED
AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR ONE (1) YEAR FROM THE PRE SENT
OR ANY FUTURE EXPIRATION DATE UNLESS AT LEAST SIXTY (6 0) DAYS PRIOR TO
SUCH EXPIRATION DATE YOU ARE NOTIFIED BY COURIER OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, THAT WE ELECT NOT TO CONSIDER THIS LETTER OF CREDIT
RENEWED FOR ANY SUCH PERIOD . NOTWITHSTANDING THE FOREGOING, THIS LETTER
OF CREDIT SHALL HAVE A FINAL EXPIRY DATE OF AUGUST 24, 2007.
ANY DRAFT DRAWN UNDER THIS LETTER OF CREDIT MUST BE MARKED DRAWN UNDER
IRREVOCABLE LETTER OF CREDIT NO. L5LS- 694415 ISSUED BY JPMORGAN CHASE
BANK, N.A.
DRAFTS AND DRAWING CERTIFICATE(S) MAY BE PRESENTED UNDER THIS LETTER OF
CREDIT, AND NOTICES, REQUESTS, AND COMMUNICATIONS MAY BE GIVEN HE RE UND E R
BY TELEFACSIMILE PURPORTEDLY SENT BY OR Al THE DIRECTION OF AN AUTHORIZED
OFFICER OF THE BENEFICIARY AND JPMORGAN CHASE BANK, N.A. SHALL BE
ENTITLED TO RELY THEREON AS IF SUCH DRAFTS AND CERTIFICATE(S) WERE
PRESENTED IN PERSON, PROVIDED THAT SUCH DRAFTS AND CERTIFICATE(S) ARE IN
CONFORMITY WITH THE REQUIREMENTS FOR THE SAME AS SET FORTH HEREIN, BUT
WITH THE EXCEPTION OF A REQUIREMENT OF AN ORIGINAL SIGNATURE.
NOTWITHSTANDING THE SUBSEQUENT PRESENTATION OF THE ORIGINALS TO BE
PROMPTLY MADE BY OVERNIGHT COURIER SERVICE TO THE ISSUER'S ADDRESS
INDICATED HE RE I NBE LOW . PRESENTATION BY TELEFACSIMILE SHALL BE MADE TO
JPMORGAN CHASE BANK, N.A. TELEFACSIMILE NUMBER (213) 621 -8079 OR
(213) 621 -8259 WITH SUCH TELEFACSIMILE TRANSMISSION CONFIRMED BY YOUR
TELEPHONE CALL TO JPMORGAN CHASE BANK, N.A. JOS I E PAREDES AT TELEPHONE NO.
(213)621-8076 OR AGNES MART I NE Z AT TELEPHONE NO. (213)621-8076 OR TO SUCH
OTHER TELEFACSIMILE OR TELEPHONE NUMBERS THAT JPMORGAN CHASE BANK, N . A-
MAY DESIGNATE BY AN AMENDMENT TO THIS LETTER OF CREDIT.
WE HEREBY ENGAGE WI TH YOU THAT ANY DRAFT DRAWN UNDER AND IN COMPLIANCE
WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED ON THE
PRESENTATION AT OUR OFFICE AT 333 S. GRAND AVENUE, SUITE 3600, LOS
ANGELES, CA 90071 AT TN : STANDBY LETTER OF CREDIT DEPARTMENT/MS. AGNE S
MARTINEZ, ASSISTANT VICE PRESIDENT, TEL NO. (213) 621 -8076 OR MS. JOSIE
PAREDES, ASSISTANT TREASURER, TEL NO. (213) 621 -8270 BY COURIER OR
CERTIFIED MAIL, ON OR BEFORE THE EXPIRATION DATE AS SPECIFIED ABOVE.
190140 U070495 Page 2 of 3
JPMorgan Chase Bank, N.A.
c/o JPMorgan Treasury Services
Global Trade Services
10420 Highland Manor Drive
Tampa, FL 33 610
JI'tVlorganChase
UNLESS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT
TO THE INTERNATIONAL STANDBY PRACTICES 1998 (ISP98) r INTERNATIONAL CHAMBER
OF COMMERCE PUBLICATION NO. 590.
AUG 31, 2005
OUR L/C NO L 5 L S - 6 9 4 415
APPLICANT REF. NO.: 1861
190140 U070495 Page 3 of 3
, RM I:
•`
00005974
/01/0,
059 1:645
IN PAYMENT
OF INVOICES TO SAL MART �.PS, INC.
0 S.W. 8
BENTONVILLE, , 72716
•`
-
�i� eg�:g8 ��::::::::::.
-
•
PAGE
01
08/01/05
0591645
.,..
22, 000.00
22,000.00
VENDOR ND.
OF 00® 59744 CITY TOTALS
�'' OAK ]K �
AK PARK HEIGHTS
� ��
...��.
P
L *MART ST ORES, :> INC.
702 S.W. 8th St.
BENTONVILLE, ARKANSAS 72716
TWENTY -•TWO TRROUSAND DOLLARS AND BENZ'S:
TO THE R E t CITY OF OAK PARK HE I,G HTS
14168 OAK PARK BLVD
NORTH
OAK PARK HEIGHTS
MN 55082.
ii ®a 5 9 LEA, 5o 4053 L❑ L 20 7 9 9❑❑ L 3 EB 5 �®
VICE PRESIDENT & TREASURER
1 F t_TV177' LJC1GlJlJ�.7L.�
* * ** *22,000.00
THIS DEVELOPER'S AGREEMENT (the "Agreement ") is made and entered into this
5 day of 2005, by and between the City of Oak Park Heights, a municipal
corporation under lie laws of the State of Minnesota (the "City"), and Wal -Mart Real Estate
Business Trust, a Delaware statutory trust (the `Developer ").
WITNES SETH;
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:
(the "Subdivision "); and,
CITY OF OAK PARK HEIGHTS
WASHINGTON COUNTY, MINNESOTA
DEVELOPER'S AGREEMENT
Wal -Mart 2nd Addition
See Attached Exhibit A
;ti`" - :�F-`- ��:� .rt, ; �:.. vY •; C,�'e; :�:;r +, �:5. r,.. y:.e = +: ''a'..x.i.. . a.^'.�� ;:1: :en'�i .�...r.Y� ..
.ti :.L �'•� .. -.... ..- .. - ;,L;'... �. .� • D -i ...r "3 .:u,'..... ..n. .. is _.. .. F i���.. •'i; :: c..
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 pro .vises 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 refereed 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:
1
- . - ' J a r '
A. The Developer shall do all site grading, common 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 acid
approved by the City prior to commeneem.ert 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:
2.
3.
All development shall conform 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.
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.
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 tune.
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 equipment 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.
The Developer shall be responsible for. maintaining the location of and
D. Th e �� � � ,
protecting curb stops, water services and sewer services. Any service or
� � �
curb stop damage shall be repaired or replaced as specified by the , Cit y
.
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
p
streets to p regent the public from traveling on same and directing attention
to detours. The repair of any damage done to the streets or public utilities
b y Developer o er 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 l e uiren ents:
H. The Developer shall dedicate and survey all drainage and storm water
holding ponds as required by the City as show. on the final plat. The
g p
Developer shall be responsible for stomi 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 bolding ponds to serve Developer's
project. Such areas are incorporated within the drainage easement
depicted on the final plat
1, 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 MuDOT access permits for the
two (2) accesses onto the MnDOT Frontage Road, if necessary.
J. Drainage and Utility Basements. 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, clearing all clearin limits and trees to be protected shall be clearly
marked. Tree protection fencing shall be installed and maintained until
after adin is complete. All fencing shall be installed at least twenty
�' � � decrd�ous and
Feet distant from the trunks of large shade trees
around coniferous s 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 �
ith steel posts at 6 -8 foot intervals. The City Arborist shall be.
contacted by Developer �
T evelo er for an ins ection after the fencing is installed. A•ll
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
will b e determined by the City Arb oast, '
replacement fees wr1 y
0. Warranty of By Title. 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 P1 owns the building now situated on the
p y
Property, such building is subject to a sale - leaseback with the Developer.
Developer further warrants and represents that there are no liens : or
encumbrances a ainst the title and that it is fully authorized to execute this
Agreement as the fee owner of the subject lands,
Fire Hydrants. .M fire hydrants throughout the development shall
P. Fir y �
incorporate. an A.FC- Waterous Storz Nozzle. The hydrant pumper n ozzle
shall be of one-piece design, compatable with a five inch Storz hose
The nozzle shall be an integral part of the fire hydrants and
coupling, � `zed distributor deli aced.
must be furnished by the manufacturer or authorized
b y the manufacturer. Storz adapters will not be accepted.
2. DESCRIPTION OF FLAN A IMPROVEMENTS ESTIMATED COST
A.
B.
Cs
D.
Site Work (Grading, Soil Erosion Control,
Landscaping and Demolition)
Utilities (Sanitary Sewer, Water Main, Small
Utility Extensions)
Paving and Parking Lots
City Inspection of
TOTAL ESTIMATED CONSTRUCTION
COST OF PLAN A IMPROVEMENTS:
ESTIMATED ENGINEERING, LEGAL AND
ADMINISTRATIYE (20%)
4
'F: - :rr. O G:w.'� .> >i'1[' eF` +`v : ;i•.':f; .= F':i "'i Yt :�Sh:J.5;
�, - •a;•' , '"d:' f. _ .err= �:`��'� �i�::s.:` .. rr�: f'?= r.
�ti'�•:�s �'7 , �`.$v 'r, i ' ��.- 'i';.��•a'ri.'iJ•`..Y1'Y�"L ?:.4 s - =:r -. ..Lwt.G i•..r,..•.
925,000 00
175,000.00
S
1,400,000.00
1 9,000.00
2,519,000.00
�
503,800.00
1 WM 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 (25%)
TOTAL PLAN A ESCROW
` Addition) 3,778,500.00
(Wal-Mart 2
3. CONSTRUCTION OF PLAN A IMPROVEMENTS.
(Wal-Mart 2' Addition)
A. Construction. The construction, installation, materials and equipment
P
shall been
accordance with the plans and specifications approved by the
City.
�.
lap_e_ctio. All of the work shall be under and. subject to the inspection
and approval val of the City and, where appropriate, any other governmental.
agency having jurisdiction.
Performance of Constr .ction Contracts. The Developer will fully
C. Faithful all
faithfully comply with all terms and con
and � P � conditions of any and
contracts entered into by the Developer for the installation and
can
struction. of all Plan A Improvements and hereby guarantees the
woxk.m P and materials o
anshi ialf the Plan A Improvements for a period. of
.�
one (1) year following the City's final acceptance of the Plan
Improvements. Prior to issuance of a building permit for the Development
Project, Developer er 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
pP �
Developer o f the construction of Plan A hnproverents 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
shau �
Performance bond. or letter of credit, that Developer shall pay all
reasonable attorne 's fees and administrative expenses associated with
said action, as detailed on appropriately descriptive invoices. Prior to
making any g y 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 an. y deficiency and opportunity to cure any such deficiency
within not less than 15 days.
Letter of Credit/Perfor aance Bond. Term and Amount. The Performance
D. I..e .
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 Cit 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
5
`il"t � "�;= '7n;`.`Te �i�x``r: Ts� % _.c'�`F-'�:SALF =i•`,
$ 3,022,800.00
� 755,700.00
r eceived 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 security
� �
requirement, all as set forth in Paragraph 2, above,
a
4, PLAN IMPROVEMENTS. The following Plan B Improvements will be
installed b y 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 PISA B IMPROVEMENTS ESTIMATED COST
(Wal -Mart r Addition)
A,
Be
C.
D.
I.
F.
Sanitary sewer
Water main
Storm Sewer Improvements
Street Improvements
Erosion Control
Restoration
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
TOTAL ESTIMATED $ 82,000 00
CONSTRUCTION COST OF PLAN A
IMPROVEMENTS:
ESTIMATED ENGINEERING, LEGAL $ 16,400.00
�D ADMINISTRATIVE (20%):
SECURITY REQUIREMENT (2S %) $ 24,600,00
, .�: ,..._.,� `d. -xY:� ;.-'; i:.r:.k:;FJt°.'; ti:; �L-3 "yT •-� r. "ycn.� r.:£;ti tl•
• :i = T^': +ii.t �. �. :=ire;: r: yz'F.� - _ ti'r: - tea.• .....r? ..cs`�..::- �.._:. ;�.:. -i. C. ... ��
98,400.00
$ 200,000.00
TOTAL PLAN B ESCROW
(WaIMart 2nd 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 B
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
, � ; '•.ycC+;;� Cti -� �.ih may:: �[]':[ �
s -� �::��., ..,;4r:.v .;r ,�:�;�:, •ti-r ��:t`�:� `;.i:`u �_. M1,, .' -' ;�`��ri�%�aj;z
•• E .`luYf�� ... . •�i5•. •, .. � E:• i. !'!'S'���[� - A .�-.. ... � .�a'f: ' t? r.
�'i.. .o`er:... .. .. • �f•.... �c
expenses related to the construction of the Plan B Improvements providing for the
construction of same as follows: '
A. Timing, The Developer shall deposit the Plan B Security with. the City on
or before February 9, 2006. Failure to so deposit security by that date will
suspend this Agreement and require the parties to renegotiate the terms
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, Le., Two Hundred Thousand
Dollars ($200,000.00), The City shall have the right to apply against the
Plan 13 Security all bills incurred by the City with regard to the Plan $
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 bill 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.
7
D Plans and S ecif cations. The Developer shall be provided with a copy of
the lans and specifications as prepared by the office of the City Engineer
p P
for the Plan B Improvements and shall be allowed fifteen (15) business
days to comment on the same 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
p �
bids received prior to the award of the bids on the Plan B Improvexnents.
The Developer may recommend rejection of all bids and the rebidding of
the P roject or any portion thereof; however, such recommendation is not
bindin g 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.
determination of the proposed bidders list shall rest in the discretion of the
City Engineer.
E. ownershi . of Plan 'B Im a rovements 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 • 13
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 finial plat, the Developer will
provide necessary easements for the Plan 13 Improvements upon the City's
request.
F. Contracts. All such construction contracts awarded by the City of Oak
Park Heights to construct the Plan 13 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 13 Improvements. At
all times durin g construction of the Plan 13 Improvements, the City and its
contractor shall keel 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.
:'•= :.i�+ -iip< :t�. _ eF f �?' -7' `•rF�= 1:F.��. ;; r'�a.c �j �
t:.. '�e'ae�ir; .�= �;�:kC'•C•r''^ya� ' .1�_'- .i�A�i;�� "�:'�S- °:..�: C�:d '�i^:..d :•:..,. ,.- d. - ,`:a. : "..�_= 'C. -:v:.. - .sL..�.
G. Change Orders. No. change order increasing the contract expense shall be
authorized by the City without first notifying Developer of the change,
y
Y :i�l'.7 `.�':.�'! �r.:.`�''' 1�''{�lr�'G`�%. W7iC {�'t: � ��.F.r `�J �.u.'� �•i
�v �.1. _ytliG �.2 �. F:�:4��i'-L'i�: -: ��?e�: �.�i3..'•,T.S!�.- e�u.S�.�v..��: �'.¢ -�
ates. The above estimates are engineering projections only.
H. �st�.rn. the
Developer shall be responsible for all actual expenses incurred in
p p
securing and installing of all Plan B Improvements. 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
b y Developer. er. The City Engineer shall compute the connection fees as
prescribed rescribed b ordinance /resolution as to this development upon receipt of
a Building Permit it and will advise the City Clerk as to the appropriate fee
to be collected. Connection fees for all lots and blocks are due and
p� p a able upon issuance of a building permit for the Development Project
and are as follows:
(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 ACCOST. On or before the date when the Developer applies
for a building p ermit, the Developer shall provide a cash escrow account to he
City of Oak Park Heights in the amount of Twenty Two Thousand Dollars
($22OOO.00) 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 ect 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.
7. GENERAL;
A. BjinEffct The terms and provisions hereof shall be binding upon
and inure to the benefit of the heirs, representatives, successors and
assigns of the arties hereto and shall be binding upon all future owners of
p ,
all or any part of the Subdivision and shall be deemed covenants ring
with the land. Referpces 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
iii '= s.4::s,' ?' ,�.'.'- t rti" +�� +�F+�c ��-•�= '�.`i�..'b:Q�JI.%, Sia �a '%y i k�����P�l :?.�::�.�..e�:��a �s`ti��:%'s��'
has given final approval to the plat of the
B. Final Plat Approval. The City � of this
.. 2n Addition) upon. execution and delivery �ubd�v� soon (Wa1Mart subject to
Agreement, and of all required documents and security,
Agre • .
• Ordinances of the City and, terms and provisions
co�npl.�ance with the ord�n best
issued the City. Developer shall use its b
hereof, pets may be � by �a y December
the plat of Wal -Mart Addition on or before De
efforts to record p City 31, 2005, and in all events shall provide the City with p roof of such
recording prior to the City's issuance of a building permit.
gp
c. All laps, special pro prop o s al s,
C. �r�r�saza�.ar� b� �e�r�ren e �. p and let
specifications and contracts for the improvements furnished an
ent shall be and hereby are made a part of this
pursuant to this Agreement
Agreement t b reference as fully as if set out herein in full. specifically
Reports and Engineering files and final
the following Planning .�
locum. pp
documentation approved by the City Planner and the City Engineer are
by specifically incorparatecl
b reference herein and included herein as if
originally made part of this Agreement.
-- Report of Northwest Associated Consultants, Inc., Oak
3, 2005 repo , . Permit,
Wal -Mart Expansion, .mended Conditional Use P ,
Park Heights p
` Conditional Use Permit, and Variance, Subdivisio n and Site
Plan/Design Guidelines Review, File No. 798.02. 04.16.
' Water and Traffic Issues - Report of
February 7, 2005, Plan Review Storm w
the Cit y Engineer, B onestroo, Anderlik, Ro s ene Associates.
City Council Minutes of March 8, 2005.
� . .wended-P. P errn
it The City of Oak Park Heights shall file the
Amended C.U.P.
Permit of record concurrent with the recording of the
final p lat in the office of the County Registrar of Titles.
E. Administrative and Miscellaneous Expense. As to any and all
__
or engineering costs which the Developer is expected
administrative, legal g� g
to the City of Oak Park Heights, which costs may be offset against
to pay �
the Performance bond or Letter of Credit (for both the Plan A and Plan B
Improvements) which p
` ch the Developer er has filed and provided to the City of
Oak Park Heights, the Developer shall be given the opportunity to review
t on such costs prior to the application by the City of Oak
and comment p
Park Heights to the bonding company or financial institution for 'the
payment of same, Should the Developer dispute the reasonableness of any
charges, Developer shall have the right to submit any such
of the City's es g�� � � expense.
dis
dispute to arbitration at Developer' s sole and exclusive
Arbitration shall be conducted by the American Arbitration Association.
and shall be initiated and paid for by D ev el op er .
10
F. Establishment of Construction Schedules. Following the deposit of the
required security for the Plan 13 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 comthence construction of Plan 33 Trnprovements 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.
a 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). ,
O Subdivision/Lot Combination,
• Sign Conditional Use Permit and Variance.
• 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 tile 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 b'e 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
Planner.
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.
12
shall comply with the minimum dimensional standards
5. Allpar��ng� ��
of t Zoning the Zonin ordinance subject to review and approval of
the
City.
All lighting shall comply with the minimal standards of the Zoning
Ordinance for height, type of fixture, and foot candle levels.
7, The landscape �
he landsca plan is subject to review and approval of the City
.Arborist.
84 The applicant shall provide the proposed eight ( foot wood fence
and landscaping d landsca inn 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 gading, drainage and erosion control plans are subject to
review and. approval by the City Engineer and applicable
watershed district.
11. The utilit y plans are subject to review and approval of the City
Engineer,
12. The front elevation sign that reads "We Sell Por 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 e shall be allowed on the south building elevation other
� .
than directional and nfoarnational signage as allowed in the
Zoning ordinance.
14. One freestanding monument sign shat be allowed on site that shall
be conforming with all provisions of the Zoning Ordinance. The
existing pylon sign shall be removed.
15. All trasblree .y cling activities shall be totally contained within the
building or enclosures, There will be no outside dnrpster 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.
}y. •�r:q �: x. =��rik °''��.�]a ^�t& :l�.F;`�-x:`:'; r.c:. r;. f�t��ft�n�r. 54.,�ti� �.,.p ,..3= !f:�r -��. %rt .�.
e���,',�.a,`4:�_:�r- :::y�Ni.. ,re`s -
'�:t°7 ' 7:�� ��.'�[''- Lf:.[- :�''� F'.� -t�: c ���`��` : Y•. �,1 y'iil; "` .f'•'�7�i;
�.��� �'� b.. YR. �' �XY�7� a..5 ���, ',:( 1'�y 1; -.. :. 1••i S ; f
}. �� sari- -� -sv. ^?,•r
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, materials 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 stricture 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 lioensed.
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 ax :d Lube Express operation may not accept new
customers for service between the hours of 10 :00 PM and 6:Q0
AM.
24. The applicant shall provide battery and oil recycling programs as
part of the Tire and Lube Express for small volu11le generators.
25. A condition of this approval is that the Applicant enter into a
Development Agreement as prepared by the City Attorney and
13
IN WITNESS WHEREOF, the City and Developer have caused this Agreement to be
duly executed on the date and year first above written.
In the presence of:
approved by the City Administrator containing provisions
pp � nd placement of
including, but not limited to, the construction a
financial sec ri for site improvements, payment of city
�'
Cann p
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 storm.
sewer improvements.
H. Street Grades. The grades of all streets shall not exceed eight percent
and the minimum grade shall not be less than one -half percent (.5 %).
�iandica
` . Location of disability/handicapped stalls shall be
I. ed �ar�n
more efficient with regard to serving all of the areas of the proposed
made g
facilit , All ei hteth. 18 disability stalls currently shown as oriented ,to
the north half of the g
arkin lot directly across from the grocery store will
p
be re- distributed throe out 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 (
disability stalls in the souther half of the parking lot across from the retail
strip center.
�s�.— f ;•"�;� i �' . -
...�`'� EXC np �4x'` ��y.'�.; "'`"' - r `•c• "� :.N': ;tyg�z�.w v.Jc' - .�_�r::: r.�w��r �'i:;.i Sc. .. ��J " %.. �•
. r? =.?3. r: --'._ -. cY±�:: +%1.l :.crr4. "r ,.'..�F- rr:: - ..-.
CITY OF OAK PARK HEIGHTS
Eric Jo + + , Adn nistrator
ny Sbannahan
Assistant Vice President
,- egat t
bY fir! .�5K...... .
r " . r 8I Team
14
Datil: LS
In the presence of:
STATE OF MINNESOTA
COUNTY OF WASHINGTON
) ss.
On this day of , 2005, + 200 before me a Notary Public, within and
for said County ersonaily appeared D rid Beaudet and Frio Johnson, to one personally known;
being each by me duly sown did say that they are respectively the ; .- -; . an ang th Achninistrator
the municipal co oration named t f re �oing instrument;
of the City of Oak Park Heights, t � �
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 d + r and Administrator acknowledged said instrument to be the free act and
akAt
deed of said muni pal arporation.
JULIE R. JOHNSON
NOTARY PUBLIC - MINNESOTA
�� Commission Jan, 31.2014
..- � ion Expires
15
STATE OF ARKANSAS
COUNTY OF BENTON
Mark J. Vierling
Eckberg, Lammers, Briggs, Wolff
and Vierling, F.L.L.P.
1 835 Northwestern Avenue
St .i1water, MN 55082
(612) 43 9 -287 8
#3096753\8
) S5.
Can this ay of ,
2005, before me a Notary Public, within and
�:� known by me
Bare * B . Shannahan to me p ersonall
for said County personally a��
duly sworn did �. say that hat he is the Assistant Vice President of Wal-Mart Real
Estate Business
Trust, a Delaware statutory trust, the Developer
Warned in the foregoing instrument; and that said
instrument was signed and sealed on behalf of said trust.
THIS INSTRUMENT WAS DRAFTED BY:
16
Notar ' Public
�: ?' °'i'.t�s: r•.t °r '•y.'7; "f "ie� ;^ i d r "y�.;wy � � hN �c`:.:�; . €,'�v: ;::.p Z.: �.c. � fr - �'.:.., s.+r�
=' - i'C':�?:s •} ����•- ;.k.��"ir�'.•���n: -Fn inn > � -�'a.. ?.r.�i�'.y..:;r�•: -.. .... .
til`,r' w tid tw ,:
NOTARY SEAL "
Karen D Milligan, Notary •Pubic
Washington County, State of Arkansas
My Commitsion Expires 10130/2008