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HomeMy WebLinkAbout2003-12-11 CA Ltr to OPHLAW OFFICES OF Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P. 1835 Northwestern Avenue Stillwater, Minnesota 55082 (651) 439 -2878 FAX (651) 439 -2923 James F. Lammers Robert G. Briggs * Mark J. Vierling # - Thomas J. Weidner *+ Susan D. Olson 4- David K. Snyder Timothy M. Kelley Sean P. Stokes Baiers C. Heeren Laura L. Domagala Mr. Eric A. Johnson City Administrator City of oak Park Heights 14168 Oak Park Boulevard North P. 0. Box 2007 Oak Park Heights, Minnesota 55082 Dear Mr. Johnson: Re: KFC/Taco John's Writer's Direct Dial: (651) 351 -2118 December 11, 2003 Lyle J. Eckberg (1916 -2003) Paul A. Wolff (1944 -1996) *Qualified Neutral Arbitrator *Certified Real Estate Specialist 4-Qualified Neutral Mediator Enclosed herewith please find a copy of the draft Developer's Agreement as has been completed through review by City staff. A copy should be made available to the developer's representatives for purposes of obtaining their comments before finalization. It should be noted relative to same: 1. We do require the developer to identify the current fee owner and provide verification of ownership under existing title purposes. Please refer to the provisions of Paragraph 0 on Page 4. Upon completion and verification of ownership, we shall adjust the document accordingly. 2. The developer shall note that the connection charges as projected have listed both 2003 and 2004 rates. If this document is not completed and executed before the end of 2003, the 2004 rates will apply. 3. Developer will be required to post a performance bond to secure the performance and completion of the listed Plan A Improvements upon the property. The copy of that bond and related documents should be submitted by the developer at or prior to the time of execution for review and approval by this office. 4. The actual PUD and CUD permit for this project will not be issued until after the development contract has been signed. Mr. Eric A. Johnson December 11, 2003 Page 2 5. The actual execution of the plat (hardshell) shall not be executed by the City until after the development contract has been completed, executed and securities posted and payment of related fees then deposited with the office of the Financial Director of the City of Oak Park Heights. 6. The provisions of Paragraph Q on Page 9 of the agreement reference cross- easements relative to the development and use of these lots. Copies of those cross - easement documents need to be prepared and provided to this office for review and approval prior to execution of this agreement. 7. The Development Agreement references several exhibits, some of which will need to be provided by the applicant. Those exhibits need to be completely attached in form satisfactory to the City prior to the execution of this document. MJV /sdb cc: Scott Richards Dennis Postler Jim Butler Yours veiytruly, Mark Vierling THIS AGREEMENT, made and entered into this day of , 200 , by and between the City of Oak Park Heights, a municipal corporation under the laws of the State of Minnesota (the "City "), and (the "Developer "). WITNESSETH; That: WHEREAS, the Developer has made application to the City Council for approval of the of a plat of land within the corporate limits of the City described as follows: (the "Development "); and, CITY OF OAK PARK HEIGHTS WASHINGTON COUNTY, MINNESOTA DEVELOPER'S AGREEMENT OAK PARK MARKETPLACE (See Attached Exhibit A) WHEREAS, the City Council has on November 25, 2003, granted PUD /CUP approval to the Development, on the c ondition t hat t he D eveloper e nter i nto t his A greement s tipulating t he 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. NOW, THEREFORE, in consideration of the premises and of the mutual promises and conditions hereinafter contained, it is hereby agreed as follows: Designation of Improvements: Improvements to be installed at Developer's expense by the Developer as hereinafter provided are hereinafter referred to as "Plan A Improvements ". Improvements to be installed by the City and paid for by Developer are hereinafter referred to as "Plan B Improvements ". 1. The Developer will construct at Developer's expense the following improvements under Plan A according to the following terms and conditions: A. The Developer shall do all site grading, 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 1 cross sections, as necessary, shall be submitted to and approved by the City prior t o c ommencement o f any site grading. Any changes to the grading plan during construction shall be submitted to the City for approval. Each building site m ust c onform t o t he g rading p lan a pproved b y t he B uilding Inspector of the City of Oak Park Heights prior to a building permit being issued. No changes shall be made to the grading plan during construction without the City's written approval. 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 development 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 s hall b e d eveloped i n i ncrements o f w orkable s ize s uch 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 right-of-way of Neal Avenue North adjacent to this development without the express written consent of the City Engineer and MNDOT. 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 at Developer's expense and in accordance with specifications established by the City. The Developer shall make all necessary adjustments to the curb stops to bring them flush with the topsoil (after gading) or driveway surface. E. The Developer shall be required to provide landscaping and screening a s determined by the City and 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 development is completed. warning signs shall be placed when hazards develop in streets to prevent the public from traveling on same and directing attention to detours. The repair of any damage done to the streets or public utilities by Developer or any of its Contractors or Subcontractors, shall remain the financial responsibility of the Developer. G. The Developer shall furnish site lighting in accordance with the City Ordinance requirements General R equirem ents: The Developer shall dedicate and survey all drainage and storm water holding ponds as required by the City and to be shown on the final plat. The Developer shall be responsible for storm sewer cleaning and holding pond dredging, as required, by the City prior to completion of the development. Any and all approvals needed from The valley Branch Watershed District for this project shall be obtained from the Developers before commencing and site improvements. The City of Oak Park Heights is requiring Developer to dedicate storm water drainage areas and holding ponds to serve Developer's project. Such areas are incorporated within the drainage easement depicted on the final plat and upon execution of this Development Agreement and the recording of the final plat conveyed to the City of Oak Park Heights. J. The Developer shall be responsible for securing all necessary approvals, and 3 ea 2. permits from all appropriate federal, state, regional and local jurisdictions prior to the commencement of site grading or construction and prior to the City awarding construction contracts for public utilities. The Developer shall secure the appropriate MnDOT access permits for the two accesses onto the MnDOT Frontage Road. K. Drainage and utility easements. 10 foot drainage and utility easements shall be provided along all peripheral (non- internal) lot lines in the plat of "Oak Park Marketplace ". A minimum 8 foot wide pedestrian 1 bike pathway shall be constructed to MNDOT and ADA standards and maintained by Developer on Developers lands connecting the site to the pedestrian walkway along TH 5 now located to the west of the site. L. Wetland Designation. All areas classified as wetlands s hall b e d isplayed upon the plat and those so specified by the City Engineer shall be dedicated to the public for that purpose. M. City Arborist Recommendations. The developer shall follow and implement the recommendation of the City Arborist relative to landscaping and plantings to be placed on the site. (Attached hereto as Exhibit "B"). O. Warranty of Title. By its execution hereof Developers hereby warrant and represents that it has the exclusive and marketable fee t itle t o t he s ubject p roperty. D evelopers further warrant and represent that there are no liens or encumbrances against the title and that it is fully authorized to execute this agreement as the fee owner of the subject lands. Developer shall have provided to the city prior to execution hereof proof of ownership in a form satisfactory to the City Attorney 14 '. 1. Boulevard and swale sod $ 1,440.00 2. Landscaping $ 15,000.00 3. Street signs $ 800.00 4. Street lights $nla 5. Grading $2,1 60.00 4 ESTIMATED COST 6. Erosion Control $3,200.00 7. Pond Protection & Restoration $3,000.00 8. Utility Protection & Repair $1,500.00 9. Street Protection & Repair $2,000.00 10. Driveway access to Neal $2,700.00 TOTAL ESTIMATED CONSTRUCTION COST OF PLAN A IMPROVEMENTS: ESTIMATED ENGINEERING, LEGAL AND ADMINISTRATIVE (20 %): TOTAL ESTIMATED CONSTRUCTION COST OF PLAN A IMPROVEMENTS: SECURITY REQUIREMENT (25 %) TOTAL PLAN A ESCROW _. ►► "OAK PARK MARKETPLACE" 5 $31,800.00 $6,360.00 $38,160.00 $9,540.00 $47,700.00 A. Con stn n cti on . The construction, installation, materials and equipment shall be in accordance with the plans and specifications approved by the City. B. Tn sp ection . 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 the execution of the Development Agreement. D. Fai th fiul Performance of Constriction 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 for a period of one year following the City's final acceptance of the Plan A Improvements. Concurrently with the execution of this Agreement, Developer or its general contractor shall provide a Performance Bond 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. Additionally, Developer guarantees and agrees that, should the City of Oak Park heights need to apply a claim on said Performance Bond, that Developer shall pay all attorney's fees and administrative expenses associated with said action. E. Performance Bond Term. The Developer or its general contractor's Performance Bond shall be issued for a period of time not less than one (1) year in duration. 4. Connection Charg'es All connection charges and fees shall be paid by Developer. The City Engineer shall compute the connection fee as prescribed by ordinance /resolution as to this development and advise the City Clerk as to the appropriate fee to be collected. Connection fees for all lots and blocks are due and payable upon execution of this agreement and are as follows: 2003 2004 Sanitary Sewer $ 5,596.50 $5,770.95 Water $ 9,737.50 $10,045.00 Storm Sewer $12,341.00 $12,720.25 'Note the Connection Charges calculated herein are based on 2003 rates. In the event this Agreement is not finalized before 12/31/03 the figures will be adjusted to 2004 rates. 6 5. T he D eveloper s hall p romptly p ay a 11 city related administrative expenses incurred in the processing of it's applications and the supervision of it's performance under this contract. If required by the Director of Finance of the City a cash escrow deposit to cover anticipated expenses will be deposited with the City upon execution of this agreement. Such escrow shall not bear interest and shall be returned to Developer upon performance and completion of this contract. 6. GENF R AL: The City reserves the right to modify or adjust the manner of computation of connection fees from time to time which may adjust or increase the connection fees on the outlots at such time as they become due. The gross area of this development is 196 acres. After addng in one half of the adjacent right of way (0.28 acres) and subtracting out the storm water pond (0.19 acres) the remaining net developable acreage is 2.05 acres; upon which the connection charges have been calculated. A. Binding Effict. 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 Development 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 Development and all recording fees, if any, shall be paid by the Developer. B. C. The City has given final approval to the plat of the Development (OAK PARK MARKETPLACE) upon execution and delivery of this Agreement and of all required documents and securities, and further subject to compliance with the Ordinances of the City and terms and provisions hereof, permits may be issued by the City. 1 .. it .. . 0 Tncorporation of Reference. All plans, special provisions, proposals, specifications and contracts for the improvements furnished and let pursuant to this Agreement shall be and hereby are made a part of this Agreement by reference as fully as if set out herein in full. Specifically the following Planning Reports and Engineering files and final documentation approved by the City Planner and the City Engineer are specifically incorporated by reference herein and included herein as if originally made part of this agreement. November 7 , 2 003 - R eport o f N orthwest Associated Consultants, Inc., File No. 798.02 -03.13 November 12, and December 11, 2003, - Reports of the City Engineer, Bonestroo, Anderlik, Rosene & Associates City Council Minutes of November 25, 2003. D. P.T J_I _ and__ `,T_ ,PP_ermit. The City of Oak Park Heights shall file the Planned Unit Development and Conditional Use Permit of record in the office of the County Recorder. Providing that the Developer is not in default under the terms of the Development Agreement, the City shall provide appropriate releases to the financial performance aspects of same and documentation to individual buyers of Tots. E. Administrative and Miscellaneous Expenses. As to any and all administrative, legal or engineering costs which the Developer is expected to pay to the City of Oak Park Heights, which costs may be offset against the Performance Bond securing the Plan A improvements for which the Developer has filed and provided to the City of Oak Park Heights, the Developer shall be given the opportunity to review and comment on such costs prior to the application by the City of Oak Park Heights to the bonding company for the payment of same F. Establishment o f Construction Schedules. The City Engineer in conjunction with the Developers Engineer shall establish construction schedules for Plan A improvements. G. Zoning. OAK PARK MARKETPLACE has been designated a zoning classification of "B-2 with a PUD Overlay" 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 H. Street Grades. The grades of all streets shall not exceed 8% and the minimum grade shall not be less than .5%. K. Handicapped Parking. Location of disability/ handicapped stalls shall be made efficient with regard to serving all of the areas of the proposed facility and shall be located pursuant to the site plan approved by the Planning Commission and the City Council. L. Trash Receptacles Trash receptacle areas have been designated on the site plan for the buildings. All tenants of the building will be required to utilize these trash receptacles or will be required to store trash internally. M. . Developers must submit a final lighting plan to the City Council. A photo - metric lighting plan shall be submitted and subject to review and specific approval of City Staff. All lighting shall be hooded and controlled so as not to direct light source to adjacent lands and not to be visible from the public right-of-way or from adjacent properties in compliance with Section 401.15B.7 of the Zoning Ordinance. O. Signage. A final signage plan shall be developed by the Developers and submitted to the office of t he C ity P lamer for a pproval. A 11 signage shall be conformed to the master signage plan so approved by the City Planner. P. Any changes to the submitted landscape plan resulting from changes to the stormwater ponding areas shall be subject to review and approval of the City Council. Q. Cross easements. The developer must put in place parking, access and use cross easements between the two lots. The final form of the Cross - easement documents shall be subject to the review and approval of the City Attorney. R. The developer must put in place parking and access easements between the two lots. (Easement form and content must be approved by the City Attorney). S. The developer shall contact MnDOT regarding expansion of the parking lot into the westerly drainage and utility easement area as proof of parking. If one or both restaurants are converted to eating establishments with 9 table service, or if the site layout changes, a PUD amendment is required. hours. T. The delivery of goods shall not take place during peak business U. On the north lot, access to the site and drive through area may be problematic from a traffic management concern as expressed by the City Engineer. The PUD and CUP permit issued in this matter shall expressly retain a right of review to the City and allow the City to require the developer to make modifications to the site access and traffic circulation patterns, at Developer's expense, should traffic use of or to the site create a public safety concern or problem in the opinion of the Chief of Police. v. All access and site visibility recommendations of the City Engineer should be incorporated onto the final site plan. (See Exhibit "C ") W. The City Council has required the following design/building material revisions to the buildings subject to City staff review and approval. The applicant shall provide revised building elevations prior permit issuance. a. KFC/A&W: (1) The checkerboard facade of the A & W portion of the building shall be consistent with the elevation plans and building materials samples recommended by the Planning Commission. (2) The parapet, window awnings, and tower roof materials shall be a muted red color as consistent with the building materials samples recommended by the Planning Commission. (3) The building shall not include any blue banding or neon accents. (4) The base material shall be brick, consistent with the building material sample recommended by the Planning Commission. The brick shall extend from the ground level to the top of the window and door frames. (5) The KFC tower element shall incorporate a sand pebble color EFIS extending from the ground level to the roof. (6) The A & W and KFC signs shall not be internally lit. The sites may be lit from a wall mounted, City approved light fixture. 10 ( The revised plans, as presented to the Planning Commission, at their November 18, 2003 meeting shall be subject to review and approval of the City Planner. b. Taco John's 1 Steak Escape: (1) The revised plans, as presented to the Planning Commission at their November 18, 2003 meeting, shall be subject to review and approval of the City Planner. X. Revised sign plans and details must be submitted that are in conformance with Section 401.15.G of the Zoning Ordinance. These plans and details are subject to City review and approval. Requirements relate to area, height, number, type, illumination, landscaping, and location. Y. The submitted landscape plan is subject to City Arborist review and approval. (See Exhibit "13"). Z. The 1 fighting m ust be revised and a photometric plan must be submitted that complies with Section 4O 1.15.B.7.d. Light standards may not exceed 25 feet from the parking lot surface to the top of the light fixture. All lights, including security lights, must be a hooded or full cut -off design. AA. The color and materials of the proposed trash enclosures shall match the principal building. Revised details must be submitted for City review and approval. BB. Grading, drainage, erosion control, and utility plans are subject to review and approval by the City Engineer. Storm water issues are also subject to review and approval by the applicable watershed authority. CC. Paving, curbing, and other site improvements proposed within the drainage and utility easement may be allowed at the developer's risk and subject to review and approval of the City Engineer. Developer is forewarned that the City's sanitary force main is located in this area and should the City ever need to repair or replace same the Developer, its heirs and assigns, shall be solely responsible for replacement of onsite improvements (e.g. pavement, curb, signage, curb gutter, landscaping ect.) DD. Sound levels from ordering and announcement equipment shall be in compliance with Section 401.15.B.11 of the City Zoning Ordinance. EE. Attached hereto as Exhibit "D ", and incorporated by reference heein , are the building color and designs approved by the city. 11 IN WITNESS WHEREOF, t he C ity a nd D eveloper h ave c aused t his A greement t o be duly executed on the date and year first above written. In the presence of: CITY OF OAK. PARK HEIGHTS By David Beaudet Mayor Eric Johnson Administrator In the presence of: DEVELOPERS ENTITY STATE OF MINNESOTA ) : ss. COUNTY OF WASHLNGTON) 12 By Its By Its on this day of , 2003, before me a Notary Public, within and for said County personally appeared David Beaudet and Eric Johnson, to me personally 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. SS. COUNTY OF WASHINGTON) STATE OF MINNESOTA On this day of , 2003, before me a Notary Public, within and for said County personally appeared and to me personally known, being each by me duly sworn did say that they are respectively the and of (ENTITYAtJTHORIZED REPRESENTATIVE) of (ENTITY), 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 Board of Directors and said and acknowledged said instrument to be the free act and deed of said municipal corporation. Mark J. Vierling Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P. 1835 Northwestern Avenue Stillwater, MN 55082 (612) 439 -2878 THIS INSTRUMENT WAS DRAFTED BY: 13 Notary Public Notary Public Eric A. Johnson gym: Jay Johnson ,nt: Monday, December 08, 2003 4:10 PM To: Brad Carmicheal (E- mail); Mike Bell Fire Chief (E -mail) Cc: Eric A. Johnson Subject: Location of Fire hydrant for Taco Bell, Steak Escape, KFC & A &W I have not heard any comments on where the fire department wants to have a fire hydrant located for this two building facility. Currently the nearest hydrants are North east of Burger King, south east of Hollywood Video, across the pond south and west of Pony Express, on the south east corner of TCF. 1 may have distances figured tomorrow. Jay Jay E. Johnson, P.E. Public Works Director City of Oak Park Heights 651-439-4439 551 - 542 -7213 Pager 651-429-0574 Fax 1