HomeMy WebLinkAbout2003-09-10 Developer's AgreementTHIS AGREEMENT, made and entered into this A day of St 2003, by and
between the City of Oak Park Heights, a municipal corporation under the laws of the State of
Minnesota (the"City"), and The Shoppes of Oak Park Heights, LLC, (the 'Developer").
WITNESSETH; That:
WHEREAS, the Developer has made application to the City Council for approval of a
Planned Unit Development on land within the corporate limits of the City described as follows:
(the "Subdivision"); and,
WHEREAS, the City Council has on August 26, 2003, granted General PUD approval to a
portion of the Subdivision described within Exhibit A, 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;
And
CITY OF OAK PARK HEIGHTS
WASHINGTON COUNTY, MINNESOTA
DEVELOPER'S AGREEMENT
Outiot B Brackey Addition, according to the plat thereof, Washington County,
except that part platted as Trunk Highway No. 36 per Minnesota Department of
Transportation Right of Way Plat No. 82-84
WHEREAS, THE City Council has granted concept PUD approval as the northern portion
of the Subdivision described within Exhibit B and has allowed the grading of the entire Subdivision
(Exhibits A and B) at this time including that as contained within Exhibit B subject to future
General PUD approval and ordinance requirements before final Development on Exhibit B will be
allowed to proceed.
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: Private site and Public improvements to be installed at
Developer's expense by the Developer as hereinafter provided are hereinafter referred to as "Plan A
Improvements.
1. PLAN A IMPROVEMENTS FOR THE SHOPPES OF OAK PARK
HEIGHTS. The Developer will construct at Developer's expense the following
improvements under Plan A according to the following terms and conditions:
58os 4061
Ps" Us
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 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. Each
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 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.
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 equipment within the rights-of-
way of 58th Street North, Norell Avenue North or Krueger Lane as
acquired by the City of Oak Park Heights adjacent to this
development without the express written consent of the City
Engineer. Developer shall not locate its equipment within the right of
way of 60th Street North adjacent to this development without the
express written consent of the Minnesota Department of
Transportation, District 5 offices as located in Oakdale, Minnesota.
C. The Developer shall place iron monuments at all lot and block corners and at
all other angle points on 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 damaged 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
determined by the City and as required by the ordinances of the City. Final
landscaping plans have been submitted to the office of the City Planner and
have been approved.
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 furnished site lighting in accordance with the City Ordinance
requirements pursuant to the plan which has been approved by the City
Planner. The City may in the future install lighting around the perimeter of
the site within the right of way and easement areas. The costs of
construction of the lighting shall be assessed against the subject property
(exhibits A and B). Developer hereby waives Notice of Improvement
hearing; Notice of Assessment hearing and waives right of appeal thereon
as otherwise provided in Minnesota Statutes 429.031, 429.061 and
429.0 81, respectively.
H. The Developer shall dedicate and survey all drainage and storm water
holding ponds as required by the Browns Creek Watershed District
(hereinafter "BCWD ") and the City Engineer to be shown on the final plat
(or in the alternative, to be conveyed by separate easement as set forth in this
Agreement) including areas for lands contained in both exhibits A and B
unless MnDOT approves, amongst other items, the BCWD's permit
conditions, which allow for direct discharge into the MnDOT right of way
( "MnDOT Approval "). If the Developer obtains MnDOT Approval, the
pond shall be private, and the Developer (i0 shall not be required to dedicate
it to the City, and (ii) shall be responsible for pond dredging and cleaning as
required by the BCWD /City. The Developer shall be responsible for storm
sewer cleaning and holding pond dredging, as required, by the City prior to
completion of the development. If MnDOT Approval is not obtained, the
pond will be conveyed to the City and maintenance on the pond shall be
assumed by the City following the certification by the City Engineer that the
pond site has been constructed to BCWD approved specification.
The BCWD is requiring Developer to dedicate storm water drainage areas
and a site holding pond to serve Developer's project. If MnDOT Approval is
not obtained, such areas shall be incorporated within the drainage easements
depicted on the final plat or as may be described and conveyed within
easements in Outlot A, and upon execution of this Development Agreement
and the recording of the final plat the same shall be conveyed to the City of
Oak Park Heights. The BCWD is also requiring Developer to make certain
improvements to the Menard's Pond (a pond displayed as a storm water
retention area/easement in the plat of Brackey Addition as recorded of
record in the office of the Washington County Recorder.) The City hereby
grants Developer and its Contractors and Subcontractors a license to enter
the Menard's Pond to make the improvements required herein. All such
improvements shall be subject to the supervision and direction of the City
Engineer to assure that performance standards specified by Brown's Creek
Watershed District are implemented. A copy of the requirements of the
Brown's Creek Watershed District are attached hereto and incorporated
herein by reference as Exhibit C.
J. The Developer shall be responsible for securing all necessary approvals, and
permits from all appropriate federal, state, regional, watershed and local
jurisdictions prior to the commencement of site grading .The Developer
shall secure the appropriate MnDOT stormwater access permits for the
access onto the MnDOT right of way for stormwater flows.
K. Drainage and utility easements. 10 foot drainage and utility easements shall
be provided along all lot lines on the Plat except the same shall be 15 feet
along Krueger Lane.
L. Wetland Designation. Any areas classified as wetlands shall be displayed
upon the plat and those so specified by the City Engineer shall be dedicated
to the public for that purpose.
M. 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 land
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 20 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 and before grading commences. Tree replacement fees, if
any, due the City pursuant to the City Tree Protection ordinance shall be
paid within 10 days following the Arborist's certification of amounts due.
2. DESCRIPTION OF PLAN A IMPROVEMENTS ESTIMATED COST
1. Boulevard and Swale sod $ 8,700.00
2. Landscaping $110,400.00
3. Street signs $ 3,200.00
4. Street lights $ 9,000.00
5. On site ponding and $ 60,000.00
BCWD requirements
6. Menard's Pond BCWD requirements $ 7,500.00
7. Wal -Mart Pond Modifications $ 3,500.00
8. Erosion Control $ 12,000.00
7. Pond Protection & Restoration $ 2,500.00
9. Utility Protection & Repair $ 2,500.00
1 Subject to confirmation by the City Arborist
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10. Street Protection & Repair $ 14,800.00
11. Street access to Norell Ave. No. $ 16,700.00
12. Sidewalks /Trails Norell(Krueger $ To Be Assessed
TOTAL ESTIMATED CONSTRUCTION COST
OF PLAN A IMPROVEMENTS: $250,800.00
ESTIMATED ENG INEERING, LEGAL AND
ADMINISTRATIVE (20 %): $ 50,160.00
TOTAL ESTIMATED CONSTRUCTION COST
OF PLAN A IMPROVEMENTS: $300,960.00
SECURITY REQUIREMENT (25 %) $ 75,240.00
TOTAL PLAN A ESCROW $376,200.00
3. CONSTRUCTION OF PLAN A IMPROVEMENTS.
"THE SHOPPES OF OAK PARK HEIGHTS"
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 governmental agency
having jurisdiction.
C. Easements. The Developers shall dedicate to the City, upon approval of the
final plat, at no cost to the City, all permanent or temporary easements
necessary for the construction and installation of the Plan A Improvements
as determined by the City. All such easements required by the City shall be
in writing, and in recordable form, containing such terms and conditions as
the City shall determine. If within the platted area, all such easements shall
be dedicated to the City and specifically described within the Plat. As it
affects all easements located outside the platted area, the same shall be
dedicated by separate easement conveyed to the City of Oak Park Heights
prior to or contemporaneously with the execution of the Development
Agreement.
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The proposed stormwater pond to be located in the northwest corner of
Outlot A shall be encumbered by an easement dedicating same to the City of
Oak Park Heights, if required pursuant to Paragraph 1(H) herein. Following
certification by the City Engineer that the same has been constructed to the
standards required by the BCWD the city shall from that date assume and
provide for future maintenance and control over the pond if MnDOT
Approval is not obtained. If MnD oT Approval is obtained, the Developer
shall provide for future maintenance and control over the pond and the City
shall have no responsibility therefor.
D. 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 to
the City for a period of one year following the City's final acceptance of the
Plan A Improvements. Copies of all construction contracts providing for
work within any public right of way, The Menard's Pond, The Walrnart
Pond, or on City property shall be filed with the office of the City
Administrator. A term of all such contracts shall be that the contractor's
performance shall be subject to the supervision and direction of the City
Engineer. Concurrently with the execution of this Agreement, Developer
shall provide cash or a 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 the Plan A Improvements in a timely and
proper manner. If the Developer provides cash, the City shall refund the
cash to the Developer upon delivery of the Letter of Credit required herein.
Additionally, Developer guarantees and agrees that, should the City of Oak
Park Heights need to apply a claim on said Letter of Credit in the event of
default under this agreement, that Developer shall pay all attorney's fees and
administrative expenses associated with said action. Security as provided
under this section shall be proportionately released upon certification by
the City Engineer that the Developer has satisfactorily completed the
various performances due in constructing the Plan A Improvements. The
letter of Credit term shall initially be for a period of one year but shall be
renewed in an amount equal to the amount of unfinished Plan A
Improvements, plus the Administrative and Security amounts set forth in
Paragraph 2, for an additional year on demand of the City.
4. Developer Performance Requirements
A. Connection Charges. All connection charges and fees shall be paid by
Developer to the city upon execution of this Agreement. The City Engineer
has computed the connection fee as prescribed by ordinance /resolution as to
this subdivision. Connection fees are as follows:
Subdivision: The Shoppes of Oak Park Heights
Sanitary Sewer $ 64,155.00
Water $ 111,625.00
Storm Sewer $ 73,970.00
AUAR Fees $117,500.00
The City acknowledges that all connection fees for this subdivision (exhibits
A and B) are included in the calculations for these connection fees.
B. City Application and Processing Charges. Pursuant to the application filed
by the Developer for this development all fees incurred by the City in
processing this application shall be paid by the Developer /Applicant.
C. Access to Norell Ave. North. As part of the Plan A improvements the
Developer shall construct over City owned land a sign and driveway access
to Norell Ave North. The location, dimension and detail of the sign shall be
subject to the approval of the City Planner and City Engineer. The area over
which such driveway and sign shall be constructed/located is described in
Exhibit D annexed hereto and incorporated by reference herein
( "Driveway"). The location of the sign may be on either side of the access,
as requested by the Developer and as approved by the City Engineer
( "Sign "). The specifications for and construction of the Driveway shall be
subject to the supervision and approval of the City Engineer. The Developer
shall be responsible for the upkeep, maintenance repair, andlor replacement
of the Driveway and Sign. The Developer its, heirs and assigns shall
indemnify and hold harmless the City from any and all loss, injury, damages,
or claims of personal injury or property damage resulting from its
construction, design, maintenance or repair of the Driveway andlor Sign.
2 The overall gross area of the development is 24.457 acres (including Outlot A). After subtracting the non-
developable areas and stormwater ponds totaling 0.959 acres the net developable land remaining is 23.50 acres.
Calculation of the connection fees was based on the net developable acreage. A credit of $67,500.00 was applied to
reduce the overall stormwater connection charge due to the on -site stormwater retention pond and outlet structure
and storm sewer connection to Krueger Lane and for modifications to the Menard's Pond outlet Structure and
outflow channel as required by the BCWD.
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The City does not grant to the Developer any property right over its land for
this driveway or sign but allows same by non - exclusive permissive license.
The City reserves the right to change, alter, relocate, remove, block or
barricade the sign or access to the extent it determines that public traffic
flow and circulation are improved thereby. Notwithstanding the foregoing,
the City will not take any such action unless 90 days written notice has been
provided to the Developer granting Developer an opportunity to meet with
City Staff and review reasons precipitating any such action and alternatives
that may exist. Additionally both parties recognize that future MNDOT
reconstruction of the Nore111washington- Highway 36 intersection may
render this access unnecessary or undesirable and result in its removal by the
City or MNDOT.
The City also grants the Developer and its successors and assigns the option
to purchase a permanent easement for the Driveway and Sign ("Easement").
The Developer, or its successors or assigns, may exercise the option with
written notice to the City. Following written notice, the City, pursuant to its
standard operating procedures to determine value (procurement of an
appraisal) shall notify Developer, or its successors and assigns, of the cost of
the Easement ( "Easement Purchase Price "). If the Developer, or its
successors and assigns, agrees to the Easement Purchase Price, the Easement
Purchase Price shall be paid to the City in return for the delivery of a
recordable Basement, in form reasonably agreed to by the parties. If
Developer declines to agree to the Easement Purchase Price, the option
lapses and terminates. This option opportunity shall only be effective for a
period of 5 years from the date hereof. If not exercised within that time
period, it lapses. Notwithstanding the foregoing, should the subject property
be acquired by the Minnesota Department of Transportation before the
option is exercised, this option lapses and Developer shall take or have no
compensable rights as a result of the taking or acquisition.
D. Pedestrian Access and Walkway/Trails.
The Developer agrees to facilitate pedestrian access to its site.
(i) A trail shall be placed along Norell Avenue and into Developer's
property from 58 to 60 Street North with a marked crosswalk over 58
Street. The applicant shall comply with the Parks Commission and City
staff in the placement of the sidewalk. An easement shall be conveyed to
the City for a trail /sidewalk along Norell Avenue by the applicant. The
City Engineer shall determine the required easement area that will be
subject to the easement conveyed to the City by Developer without charge
to the City. The sidewalk shall be constructed at the applicant's expense
and subject to review and approval of the City Engineer.
(ii) An easement shall be dedicated to the City for a trail/sidewalk along
Krueger Lane by the applicant. The City Engineer shall determine the
required easement area that will be indicated on the final plat. The City
shall undertake to build the sidewalk at a future date. The costs of
construction of the sidewalk in (i) and (ii) above shall be assessed against
the subject property (exhibits A and B). Developer hereby waives Notice
of Improvement hearing; Notice of Assessment hearing and waives right
of appeal thereon as otherwise provided in Minnesota Statutes 429.031,
429.061 and 429.081, respectively.
E. Site Requirements:
(1) The six handicap stalls displayed in site plans to be along the east /west
drive aisle directly north of the building shall be relocated to the interior of
the parking lot.
(2) A snow storage plan shall be submitted for City staff review and
approval.
(3) The utility plan is subject to review and approval of the City Engineer.
No connections to city water and sanitary sewer service shall be made
except under the supervision and approval of the City Engineer or Director
of Public Works for the City.
(4) The applicant has provided color building elevations and building
material samples for Planning Commission and City Council review and
the same have been approved.
(5) The grading and placement of a retaining wall adjacent to the
transmission line towers shall be subject to written approval of Xcel
Energy.
(6) The truck access to 58 Street shall be removed on the site plan. The
applicant shall submit a revised site plan indicating the change subject to
review and approval of the City Engineer.
(7) Seasonal planters be provided directly north of the four retail stores
within the sidewalk area.
(8) A landscape planter containing decorative shrubbery and /or flower
materials be provided at the base of the proposed freestanding sign.
(9) The landscape plan be subject to review and approval by the City
Arborist.
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(10) Trash handling locations shall be indicated on the site plan. Trash
receptacles shall be located within enclosures and not be visible to
surrounding public streets subject to review and approval of City staff.
(11) Outside storage on the property (including trailers) shall be
prohibited.
(12) All wall signs not exceed 15 percent of the area of an applicable
facade or 300 square feet in size.
(13) The proposed freestanding sign be reduced in size from 150 to 100
square feet.
(14) The City finds the percentage of glass illustrated upon the proposed
building elevations (approximately 9 percent) to be acceptable.
(15) The future Kohl's expansion of 19,200 square feet is found to be
acceptable with this approval. The expansion plans shall be submitted to
City staff for review and approval subject to compliance with the Zoning
Ordinance and this general plan approval.
(16) To accommodate traffic concerns expressed within the City
Engineering report of August 26, 2003 the Developer shall develop the site
with signing and other practical methods in a manner to encourage
motorists exiting onto Krueger Lane to head south to 58th Street and then
to Norell Ave or to use Norell Ave exit directly from the site and avoid
traveling to the 60th Street and Norell intersection via going south on
Krueger Lane.
(17) A retaining wall up to 17 feet in height is proposed in the vicinity of
the northwest comer of the city water tower easement. Detailed structural
calculations shall be submitted to the city for review and approval prior to
construction of the retaining wall.
5. General Provisions
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 on record so as to give notice hereof to subsequent purchasers and
encumbrances of all or any part of the Subdivision and all recording fees, if
any, shall be paid by the Developer.
B. Final Plat Approval. The City has given final approval to the PUD/plat of
the Subdivision (THE SHOPPES OF OAK PARK HEIGHTS) 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.
C. Se.tember 13 1995 Bracke - Oak Park He% is Development A: eement.
The lands describes in exhibits A and B were previously subject to the
provisions of an unrecorded Development Agreement between the City of
Oak Park Heights and Robert L. and Janet M. Brackey. The terms and
provisions hereof extinguish the provisions of the former Development
Agreement affecting these properties (exhibits A and B) substituting the
provisions hereof in its place.
D. P.U.D. Permit. The City of Oak Park Heights shall file a Planned Unit
Development Permit for the areas provided in Exhibit A in the office of the
County Recorder. Providing that the Developer has fully performed is not in
default under the terms of the Development Agreement, the City shall
provide appropriate releases to the financial performances of Plan A
improvements.
E. Establishment of Construction Schedules. The City Engineer shall have the
right to review and approve construction schedules for Plan A improvements
and will consult with Developer prior to establishing same.
F. Zoning. THE SHOPPES OF OAK PARK HEIGHTS 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
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G. Street Grades. The grades of all streets shall not exceed 8% and the
minimum grade shall not be less than .5 %.
H. Phase I Development. Developer's Development is approved for Phase I of
the project. This phase includes the construction of the Kohl's building
anchoring retail shops illustrated on the approved site plans affecting land
described in Exhibit A. A future retail addition is indicated on the concept
plan to the north (exhibit B) of the first development is planned. Future
expansion will require the processing of a PUD Amendment and site plan
review at such time as an application is made for that extension.
Landscaping. A final landscaping plan shall be developed and submitted to
the City Planner by Developer. In addition the following modifications to
the landscape plan shall be implemented subject to final modifications by
the City Planner:
1. The street trees for the entry drive shall be subject to the approval of
the City Forester.
The planting details depicted within the landscape plan shall
implement a lowest branching height to provide a uniform
appearance and to allow clearance for pedestrians, all in a manner to
be designated and approved by the City Arborist.
3. Sodding and Seeding are discussed in the planting notes but not
defined in the illustration plans. The areas of sodding and seeding
shall be identified in a final plan to be submitted and approved by the
City Arborist.
J. Counterparts. This Lease may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall constitute
one and the same instrument. Signatures on this Agreement delivered by
facsimile or telecopier shall be considered original signatures for purposes of
effectiveness of this Lease.
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:
In the presence of:
CITY
By
By
14
David B
May
gir
ay M. Scott
President
Johnson
inistrator
PPES OF OAK PARK HEIGHTS,
STATE OF MINNESOTA )
ss.
COUNTY OF W S -( I 1)
On this 1(YH'\ da of e ernb ' , 2 003, before me a Notary Public, within and for
day �
said County personally appeared bavid Beaudet and Eric Johnson known, being each by me duly
sworn did say that they are respectively the Mayor and the Administrator of the City of Oak Park
Heights, the municipal corporation named in the foregoing instrument; 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 Mayor and
Administrator acknowledged said instrument to be the free act and deed of said municipal
corporation.
STATE OF MINNESOTA )
COUNTY OF tAlk W JUCIT()Aj
On this - i h day of fi em be r , 2003, before me a Notary Public, within and for
said County personally appeared Say M. Scott, to me personally known, being duly sworn did say
Y PP � P Y � g Y Y
that he is the President of The Shoppes of Oak Park Heights, LLC, a Minnesota limited liability
company named in the foregoing instrument; and said President acknowledged said instrument to
be the free act.and deed of said limited liability company.
JULIE R. JOHNSON
NOTARY PUBLIC -- MINNESOTA
WASHINGTON COUNTY
wjvvvvwvWWvVwvvw
My Comm. Expires Jan. 31, 2005
Mark J. Vierling
Eckberg, Lammers, Briggs, Wolff
& Vierling, P.L.L.P.
1835 Northwestern Avenue
Stillwater, MN 55082
(612) 439 -2878
23549-001-Developer's Agr Final 9-9-03
JULIE R. JOHNSON
NOTARY PUBLIC MINNESOTA
WASHINGTON COUNTY
My Comm. Expires Jan. 31, 2005
ss.
FOLLOW NG :NEGOTIATION WITH DEVELOPER'S COUNSEL
THIS INSTRUMENT WAS DRAFTED BY:
15
bt,097,-
Notary Pub -lc
EXHIBIT A
KOHL'S SITE RECEIVEING GENERAL PUD APPROVAL ON AUGUST 26, 2003
LEGAL DESCRIPTION
Lots 1 and 2, Block 1, The Shoppes of Oak Park Heights
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1 1(
MEMORAIN DUM
Date: September 3, 2003
To: North American Properties
Karen Kill, BCWD Administrator
From: Ryan Fleming, Cecilio Olivier, P.B. and Camilla Correll
Re: Permit No. 03-04 -- The Shoppes of Oak Park Heights, Oak Park Heights, MN
The following review of the above mentioned project located within the legal jurisdiction of the
Brown's Creek Watershed District (BCWD) was conducted to determine compliance with the
BCWD rules pursuant to the Board's permit issuance determination for this project.
GENERAL COMMENTS
The Oak Park Heights Retail Site is located at the northeast comer of the 5 8th Street and Krueger
Lane intersection, to the east of the existing Menards Store. Phase I of the development entails
the building of a Kohl's department store on the southern 18.4 acres of the site with four attached
retail buildings and a surrounding parking lot. Phase 11 of the project will develop the northern
6.1 acres of the site into a commercial shopping area with four proposed buildings and an
additional parking lot surrounding them. Grading and building construction for both Phase I and
Phase II of this project will be performed simultaneously. Stormwater runoff from both phases
of the development is to be directed to an on -site pond in the northwest corner of the
development. Runoff will then be directed to the Menards Pond regional facility via the storm
sewer system under 60th Street North.
Rule 2.0— STORMWATER MANAGEMENT
Rate Cont, roi According to BCWD rule 2.4.1, part (a), it must be shown that the proposed
development site will not increase peak stormwater flow for the 1.5, 10, and 100 -year, 24 -hour
storm events.
Review of Submitted Model:
A detailed review of the Hydraflow Hydrology and Hydraulics model submitted by Westwood
Professional Services, Inc. in August of 2003 was performed for existing and proposed
conditions at the site. The following modifications were incorporated to meet BCWD modeling
criteria:
19
24 -hr Storm Event
Peak Runoff Discharge for
Existing Shoppes Site
[cfs]
Peak Discharge from proposed
Shoppes Pond
[cfs]
1.5 -year
2.6
9.8
10 -year
11.1
23.9
100 -year
27.1
34.9
■ Time of concentration for existing conditions changed from 37.1 minutes to 45.7 minutes
(HydroCAD Lag method) to be more representative of existing paths for flow given the
average slope and hydraulic length values for the site. Time of concentration for post -
development conditions changed from 30 minutes to 20 minutes to more accurately represent
the overland and pipe flow delivery of the developed site.
• Existing conditions CN ha been changed from 69 to 61 since the underlying soils
have an average hydraulic classification of B to B+ and the site cover is greater than 75%
well maintained grass. Proposed conditions CN has been changed from 90 to 94 in view of
the fact that greater than 80% of the site will be impervious and the remaining pervious cover
will have been graded and compacted during construction.
The BCWD XP -SWMM modeled results for the existing conditions scenario, with the corrected
input parameters, are provided in the following table:
Table 1. Results for existing and proposed conditions.
Conclusion:
The proposed pond size and outlet configuration does not meet the District's rate control rule.
Proposed options to meet the District rate control rule:
There were a number of designs, outlet configurations and improvement combinations that were
modeled to achieve compliance with the BCWD rate control rule.
The following options summarize that effort:
Option 1 (Local Compliance): Modify The Shoppes of Oak Park Heights pond size and outlet
such that the peak flow rates for the 1.5 -, 10 -, and 100 -year events are at or below the pre -
developed condition rates (Table 1).
To achieve local compliance the following changes are necessary:
Reduce the size of the outlet pipe /orifice to an 8 -inch PVC and raise the overflow top to
925.5. Replace the existing 24 -inch outlet pipe with a 21 -inch RCP. These improvements
20
Event
Shoppes of OPH Pond
Menards Pond
Peak
Discharge
[cfs]
HWL
[ft]
Pre - development
peak Discharge
[cfs]
Current
Peak
D
[cfs]
Option 1
Peak
Discharge
[cfs]
HWL
[ft]
1.5 -yr Event
2.7
924.05
5.0
15.4
21.0
918.75
10 -yr Event
4.4
925.61
13.7
23.6
25.4
920.13
100 -yr Event
25.5
926.39
24.2
28.4
30.4
922.30
will significantly reduce the peak discharge rates for all storm events while utilizing the
capacity of the 21 -inch pipe for large events.
• Enlarge the pond by —30% in area such that the area of the 927.5 contour is 1.2 acres
while keeping the proposed side- slope.
Table 2 below shows that these modifications will reduce the peak discharge rate to within an
acceptable margin of the pre - development rates.
Option 2 (Regional Compliance): Modify The Shoppes of Oak Park Heights Pond outlet
configuration only (no increase in pond size), and modify the existing outlet structure on the
Menards Pond.
• Reduce the proposed Shoppes Pond outlet pipe from a 15 -inch RCP to a 12 -inch RCP,
reduce the primary outlet pipe from a 24 -inch RCP to a 21 -inch RCP, and raise the
overflow top to 925.5.
▪ Modify the existing Menards Pond outlet by installing a 12 -inch orifice /pipe at the 917.0
foot elevation and placing an overflow drop outlet at the 923.5 foot elevation.
Results of modeling this scenario are displayed in Table 3.
Table 2. XP -SWMM modeled peak discharge and IIWL for The Shoppes of Oak Park Heights
Pond and the Menards Pond with the following modifications: Enlarge proposed pond by -30%,
reduce outlet to an 8-inch PVC pipe, reduce primary outlet to a 21 -inch RCP, and raise the
overflow to an elevation of 925.5.
Table 3. XPWSWMM modeled peak discharge and HWL for The Shoppes of Oak Park Heights
Pond and the Menards Pond with the following modifications: Reduce outlet to a l2 inch RCP,
reduce primary outlet to a 2l -inch RCP, raise overflow to 925.5, and modify Menards Pond outlet.
Event . Shoppes of °PH Pond Menards Pond
21
1.5 -yr Event
10 -yr Event
100 -yr Event
6.4
14.9
27.8
924.50
925.93
927.28
5.0
13.7
24.2
15.4
23.6
28.4
7.1
10.0
26.7
920.38
922.69
924.23
Peak
Discharge
[cfs]
HWL
[ft]
Conditions for Stormwater Management:
Pre - development
Peak Discharge
[cfs]
■ Implement one of the 2 options mentioned above.
Current
Peak
Discharge
[cfs]
Option 2
Peak
Discharge
[cfs]
■ Provide the District with final plans of proposed pond design and modified outlet
structures.
22
HWL
[ft]
■ If the existing channel outflow in the center of the wetland in Menard's Pond is to be
used to convey the water to a reduced size outlet structure, the channel must be excavated as
part of the outlet construction and kept clear of debris.
Additional Recommendations for Enhancement of the Stormwater Management Facilities:
It is strongly recommended that The Shoppes Pond remain unlined and the soils non -
compacted in order to exploit their natural infiltration capacity. If this recommendation is
followed, a note should be included on the plan set stating these items. If this
recommendation is implemented, the District will not require that the pond bottom be
managed as an infiltration basin with ongoing maintenance.
■ The planting scheme for the pond should utilize deep rooted, native vegetation in order to
enhance the infiltration capacity of the underlying soils.
■ A skimmer structure at the opening of the outlet pipe is recommended to reduce the
chance of clogging with debris.
Volume Control According to BCWD rule 2.4.1, part (b), it must be shown that the proposed
site will not increase stormwater volumes generated from a 1.5- -year, 24 -hour event, excepting
that from 5% impervious cover.
■ The District's volume control rule does not apply as a result of the cooperative agreement
between the City of Oak Park Heights and the City of Stillwater.
Pollutant Loading According to the BCWD rule 2.4.1, part (c), the proposed development
must not result in an increase in total loads of suspended solids, total nitrogen, or heavy metals,
or exceed the total phosphorus concentration indicated in Appendix 2.2, BCWD rules, for the site
receiving water.
The proposed pond does not provide dead storage for the improvement of water quality
discharged off of the site.
• Previous modeling for the subwatershed contributing flow to the downstream Menards
Pond included a P8 Model to determine pollutant loading to Long Lake. The results of this
modeling concluded that the discharge to from this subwatershed would still meet the
Watershed District's water quality rule (220 ppb phosphorous concentration) following
ultimate development. It should be noted that the actual load of phosphorus "(in terms of
pounds per year) being delivered from this area would more than double. This is due, in
large part, to the increase in volume of runoff associated with the future development of the
drainage area. Results from the P8 Model follow in Table 4.
Table 4. Menard's Pond P8 Model Results
Lake/Wetland Bounce — According to the BCWD rule 2.4.1, part (d), the proposed
development must not increase the bounce or duration of inundation for the 1.5, 10, or 100 -year
24 hour storm event in accordance with the limit specified in Appendix 2.3 of the BCWD rules.
The peak flow rates being discharged to Long Lake from The Shoppes of Oak Park Heights
site will have minimum impacts on the bounce and duration of inundation in Long Lake. The
proposed modifications of the Menards Pond outlet (option 2) will reduce the bounce in
Long Lake by approximately 0.15 ft, an appreciable amount for such a flood sensitive
resource.
Rule 3.0— EROSION CONTROL
According to BCWD rule 3.2, all developers undertaking in land altering activities involving the
movement of more than 50 cu. yd. or remove vegetation on more than 5,000 sq. ft. shall submit
an erosion control plan and secure an erosion control from the District.
Silt fences, rock construction entrances, inlet protection, and temporary seeding of
disturbed areas are noted on the erosion control plan for the retail site.
23
Phosphorus Load
Phosphorus Concentration
lbs/year
(ppb)
Existing Conditions
29.3
130
Fully Developed Conditions
62.0
151
Pollutant Loading According to the BCWD rule 2.4.1, part (c), the proposed development
must not result in an increase in total loads of suspended solids, total nitrogen, or heavy metals,
or exceed the total phosphorus concentration indicated in Appendix 2.2, BCWD rules, for the site
receiving water.
The proposed pond does not provide dead storage for the improvement of water quality
discharged off of the site.
• Previous modeling for the subwatershed contributing flow to the downstream Menards
Pond included a P8 Model to determine pollutant loading to Long Lake. The results of this
modeling concluded that the discharge to from this subwatershed would still meet the
Watershed District's water quality rule (220 ppb phosphorous concentration) following
ultimate development. It should be noted that the actual load of phosphorus "(in terms of
pounds per year) being delivered from this area would more than double. This is due, in
large part, to the increase in volume of runoff associated with the future development of the
drainage area. Results from the P8 Model follow in Table 4.
Table 4. Menard's Pond P8 Model Results
Lake/Wetland Bounce — According to the BCWD rule 2.4.1, part (d), the proposed
development must not increase the bounce or duration of inundation for the 1.5, 10, or 100 -year
24 hour storm event in accordance with the limit specified in Appendix 2.3 of the BCWD rules.
The peak flow rates being discharged to Long Lake from The Shoppes of Oak Park Heights
site will have minimum impacts on the bounce and duration of inundation in Long Lake. The
proposed modifications of the Menards Pond outlet (option 2) will reduce the bounce in
Long Lake by approximately 0.15 ft, an appreciable amount for such a flood sensitive
resource.
Rule 3.0— EROSION CONTROL
According to BCWD rule 3.2, all developers undertaking in land altering activities involving the
movement of more than 50 cu. yd. or remove vegetation on more than 5,000 sq. ft. shall submit
an erosion control plan and secure an erosion control from the District.
Silt fences, rock construction entrances, inlet protection, and temporary seeding of
disturbed areas are noted on the erosion control plan for the retail site.
23
Conditions for Erosion Control:
IN Provide an acceptable seeding plan for those portions of the site that will require re-
vegetation.
Additional Recommendations for Enhancement of Erosion Control:
® A native vegetation mix, such as those outlined in MN/DOT Standard Specifications for
Construction 2000 Section No. 3876: mixture No. 25B, which will enhance the infiltration
capacity of the pond is recommended.
■ It is recommended that all areas requiring re- vegetation be seeded with a native mixture such
as those outlined in MN/DOT Standard Specifications for Construction 2000 Section No.
3876: mixture No 20B. Aside from the ecological advantages of native plantings, they
promote infiltration in upland areas and are very well suited for the climate in the area,
therefore requiring less maintenance than non - native species.
Rule 4.0 —LAKE, STREAM, AND WETLAND BUFFER REQUIREMENTS
Buffer zone widths are dictated by the presence of a stream or tributary of Brown's Creek and by
the quality of lakes or wetlands on the development site.
■ This rule requirement does not apply to the proposed project.
Rule 5.0-- SHORELINE AND STREAMBANK ALTERATIONS
According to BCWD rule 5.0, No person shall construct or install a shoreline or streambank
improvement below the ordinary high water mark of a waterbody, without first obtaining a
District permit.
■ This rule requirement does not apply to the proposed project.
Rule 6.0— WATERCOURSE AND BASIN CROSSINGS
Placement of roads, highways and utilities in the bed of any waterbody in the District requires a
District permit.
a There are no watercourse or basin crossings proposed.
Rule 7.0— FLOODPLAIN AND DRAINAGE ALTERATIONS
According to BCWD rule 7.3.1 all new residential buildings shall be constructed such that the
lowest basement floor elevations are at a minimum of two feet above the 100 -year high water
24
elevation. The lowest grade elevation in contact with the structure can be used instead of the
lowest floor only for a perched water basin, which must be demonstrated by the criteria listed
under rule 7.3.1.
® The lowest first floor elevation in the area surrounding the Menards Pond is proposed to
be 930.0 (Restaurant location in the northwest corner of the site), which is higher than the
two-foot allowance above the 100 -year high water elevation modeled to be 927.3.
Rule 8.0 —FEES
Fees for this project as outlined below:
1. Grading or Alteration (Rules 2.0 -7.0)
Activities /Grading 20 or more acres
a TOTAL FEES
Rule 9.0— SURETIES
Sureties for this project are as outlined below:
Restoration activities
Stormwater Mgt Facilities
$2,000.00
$2,000.00
$49,000.00
*$427,275.00
▪ TOTAL SURETIES *$476,275.00
*No Stormwater Mgt Facilities surety is necessary ifapplicant can demonstrate that the
municipality has received equal or greater performance surety amount from applicant.
RECOMMENDED CONDITIONS OF THE PERMIT:
Summary of the remaining tasks necessary to bring the project into compliance with the BCWD
Rule is as outlined below:
• Implement one of the two options mentioned in the Rate Control section of Rule 2.0.
® Clean and stabilize the channel upstream of the outlet for Menard's Pond such that it is
clear of sediment and debris if the outlet on the Menards Pond is restricted in size.
® Provide the District with an acceptable seeding plan for those portions of the site that will
require re- vegetation as well as plans of proposed outlet /pond design.
25
• Provide a maintenance declaration for the pond on the development site as well as for the
Menards Pond if Option 2 is implemented.
■ Submit final plans consistent with the terms of this permit.
II Submit certified Record Drawings once the stormwater facility construction is complete.
• Payment of fees and provision of sureties.
26
Materials /Documents
Date
Revised
Application form
May 16, 2003
The Shoppes of Oak Park Heights grading plan
Jul 25, 2003
August 21,
2003
PERMIT NO. 03 -04
The Shoppes of Oak Park Heights
Property Owner:
Address:
City /Zip:
Project Location:
heights, MN
Affected Rules:
Materials Submitted:
BROWN'S CREEK
WATERSHED DISTRICT
1380 West Frontage Road, Hwy 36, Stillwater, MN 55082
Tel: 651 - 275 -1136 ext. 26 Fax: 651-2754254
BROWN S CREEK WATERSHED DISTRICT
North American Properties, Inc.
300 Prairie Center Drive
Eden Prairie, MN 55344
South of State Highway 36, east of Krueger Lane, Oak Park
Stormwater Management (Rule 2.0)
Grading and Erosion Control (Rule 3.0)
Floodplain and Drainage Alterations (Rule 7.0)
Fees (Rule 8.0)
Sureties (Rule 9.0)
Work Authorized: Permission is granted to do the work described in the
documents referenced in Table 1 and consistent with those documents as amended
by the terms of this permit. In the event of inconsistencies, the terms of
this permit shall prevail, followed by the more recent document. Any
ambiguity shall be resolved in the manner that best furthers the water
resource goals and purposes of Minnesota Statutes Chapters 1033 and 103D
Table 1
27
Date:
Telephone:
Fax:
September 2, 2003
952-829-7448
952-974-9300
General Conditions:
1. This permit is a determination that the proposed activity, if
conducted in accordance with the conditions herein, shall comply with
the rules and requirements of the BCWD. It does not constitute a
finding that the activity complies with the requirements of any other
local, state or federal agency, nor does it convey any property or
other right to the applicant in the permitted activity or the land on
which it is to occur. The applicant is responsible for complying with
the requirements of all agencies other than the BCWD, and for ensuring
that it holds all property and other rights as are necessary to carry
out the permitted activity.
2. This permit shall expire one year from the date of issuance unless
renewed in accordance with Section 1.0 of the BCWD Rules. No work
subject to the terms of the permit may be conducted after permit
expiration. The permit may be transferred only in accordance with
Section 1.0.
3. The Owner shall grant access to the site at all reasonable times
before, during and after construction to authorized representatives of
the BCWD for inspection of the activities authorized hereunder and
compliance with the requirements of this permit, the BCWD Rules and
the statutes relevant thereto. This right of access shall be in
addition to the access authority of the BCWD under existing law.
4. By issuing this permit, the BCWD does not direct the activity
authorized herein or warrant the soundness of the applicant's design
or methods in any respect. The BCWD waives no immunity or protection
applicable to itself, an officer, an agent or an employee pursuant to
this approval.
5. The address of the applicant as indicated on the permit
application shall be the address for any mailing or notice by the BCWD
in administering this permit.
6. Before commencing any activity covered by this permit, the
permittee shall sign the permit, indicating familiarity with its
terms; transmit the signed copy to the BCWD by delivery, mail or fax;
and confirm BCWD receipt thereof and payment of all fees and sureties
due in accordance with section 8.
Special Conditions:
1. Permit to be issued upon meeting the conditions regarding fees and
sureties, provision of final plans and maintenance declarations as set
forth in the Recommended Conditions of the Permit in the memo to the
BCWD Board of Managers, dated 9-03-2003, on The Shoppes of Oak Park
Heights by Ryan Fleming, EOR. Said memo is attached herein and
incorporated into the permit.
28
Approved by
District Administrator
Date:
hereby state that T am the owner of the property on which the work
authorized by this permit is to occur, or am the authorized agent of said
owner, and that I have read and understand the terms of the permit and the
permittee's responsibilities hereunder.
[Signature]
Date:
[Print name, title and organization]
September 9, 2003
Steve Johnson
North American Properties, Inc.
300 Prairie Center Drive
Eden Prairie MN 55344
Dear Mr. Johnson;
BROWN'S CREEK
WATERSHED DISTRICT
1380 W Frontage Rd, Highway 36, Stillwater, MN 55082 Tel: 651 -275 -1136 ext 26 Fax:
651-275-1254
RE: BCWD Permit #03-04—Th Sho es o f [ya Park Heights
At the September 8, 2003, Brown's Creek Watershed District (BCWD)
Board meeting, an approval to the BCWD Rules was granted with
conditions. The rate control did not meet the BCWD Rules as
submitted. Two options were determined to bring the project into
compliance. option 2, Regional Compliance, was discussed and
selected by the project engineer at the September 8, 2003
meeting. Based upon our engineers recommendations, it appears
29
that before the permit can become effective, we must receive the
fol lowing i terns
1. Submit final plans consistent with the terms of this permit,
including updated plans showing the Option 2 (as described
in 9 -03 -03 review memo to the Board) rate control elements.
2. Provide the District with an acceptable seeding plan for
those portions of the site that will require re-vegetation
as well as plans of proposed outlet /pond design.
3. Execution and recording of declaration for stormwater
facilities maintenance with proof of recordation for both
the onsite pond and the Menard's pond. Attached are forms
for the Declaration.
4. In accordance with Section 8.0 of the BCWD Rules and the
Permit Fee Schedule adopted May 2003, when a project is
approved by the BCWD Board, the permit fee deposit must be
replenished to the deposit amount by the applicant before
the permit will be issued to cover actual costs incurred to
monitor compliance and address non - compliance with the BCWD
Rules. An costs incurred b the BC'WD reater th the
permit fee deposit balance will be billed to the applicant.
Any unused portion of the deposit balance will be returned
to the applicant when the Board determines that the work has
been completed under the permit. The current balance owed
to BCWD (as of invoices submitted to the District 8-- 11 -03)
is $1,092.56. To replenish the deposit amount, a cash
deposit of $3,092.56 must be submitted to the District.
5. In accordance with Section 9.0 of the BCWD Rules, you are
required to submit and file with the BCWD, in a form
approved by staff, a surety in the amount of $143,000.
However, if proof of a letter of credit to the City of Oak
Park Heights in an amount exceeded $94,000 is submitted to
BCWD, you will be required to submit a letter of credit to
the District in the amount of $49,000 for the restoration
activities surety only. Attached are forms for the
Performance Bond and Letter of Credit, each of which
is an acceptable surety for a permittee under section 9.0. Other forms of surety (such as a
cash escrow) may be acceptable but would need to be approved by the District.
6. You must sign and return the enclosed permit. After we
receive the signed permit, we will return a fully executed
copy to you for your records.
30
Once the permit has been issued, the following items are also
necessary for compliance with the BCWD Rules:
® Clean and stabilize the channel upstream of the outlet for
Menard's Pond such that it is clear of sediment and debris.
® Submit certified Record Drawings once the stormwater facility
construction is complete.
Please review the terms of the permit and contact me with any
questions you may have at 651 - 275 --1136 ext 26. Thank you.
Sincerely,
Karen Kill
BCWD Administrator
Cc: Board of Managers
Chuck Holtman, Smith Parker, P.L.L.P
Ryan Flemming, EOR, Inc.
Daniel Parks, P.E., Westwood w /enc.
Eric Johnson, City of Oak Park Heights
Mark Vierling, Legal Counsel for City of Oak Park Heights
31
Easement Area = 5,218 sq. ft.
EXHIBIT D
ACCESS DESCRIPTION TO
NORELL AVE NORTH
An area over and across that part of Outlot A, WAL -MART ADDITION, Washington County,
Minnesota, described as follows:
Commencing at the south corner of said Outlot A; thence North 1 degrees 52 minutes 03
seconds West, assumed bearing, along the West line of said Outlot A a distance of 121.94
feet to the actual point of beginning; thence continuing North 1 degrees 52 minutes 03
seconds West along the West line of said Outlot A a distance of 50.04 feet; thence South 89
degrees 33 minutes 51 seconds East a distance of 24.07 feet; thence easterly 77.96 feet along
a tangential curve concave to the southwest having a radius of 100.00 feet and a central
angle of 44 degrees 40 minutes 04 seconds; thence South 44 degrees 53 minutes 48 seconds
East a distance of 15.58 feet more or less to the East line of said Outlot A; thence
southwesterly along the East line of said Outlot A a distance of 60.06 feet on a non -
tangential curve concave to the southeast having a radius of 380.00 feet, a central angle of 9
degrees 03 minutes 22 seconds having a chord which bears South 45 degrees 09 minutes 54
seconds West; thence North 44 degrees 53 minutes 48 seconds West and not tangent to said
curve a distance of 25.63 feet; thence westerly 38.98 feet along a tangential curve concave to
the southwest having a radius of 50.00 feet and a central angle of 44 degrees 40 minutes 04
seconds; thence North 89 degrees 33 minutes 51 seconds West tangent to said curve a
distance of 7.83 feet more or less to the point of beginning.
32