6.1. & 6.2. SR 03-08-1999
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Item # 6. 1. & 6. 2 .
MEMORANDUM
TO:
Mayor and City Council
FROM:
Scott Harlicker, Planning Assista
DATE:
March 8, 1999
SUBJECT: Request by Associated Developers of
the Twin Cities, Inc. for Preliminary
Plat and Conditional Use Permit,
Public Hearing Case No.'s P 98-8
and CU 98-26
Request
Consider a request by Associated Developers for the following:
.
1. Preliminary plat of 70.71 acres into 9 commercial lots and 2 outlots
2. A conditional use permit for a 70.71 acre commercial Planned Unit
Development
Location
The southeast corner of Highway 169 and Main Street
Zonin/!/ Land use
PUD (Planned Unit Development) / HB (Highway Business)
Attachments
. Location map
. Development plans
. Memos from City Engineer dated 10/23/98 and 12/16/98
. Minutes from the November 24th and December 22nd Planning
Commission meetings
.
13065 Orono Parkway · P.O. Box 490 · Elk River, MN 55330. TDD & Phone: (612) 441-7420 · Fax: (612) 441-7425
. Overview
Background
At the December 22, 1998 Planning Commission meeting, the Commission
recommended approval of the preliminary plat and the conditional use
permit for the planned unit development. At the November 30, 1998 City
Council meeting, the Council approved the rezoning request to Planned Unit
Development. The Council is now being asked to consider the preliminary
plat and the conditional use permit for the planned unit development. As
each of the individual sites within the PUD are developed, they will be back
before the Planning Commission and Council for all the necessary approvals.
Those approvals will include conditional use permits and in some case final
plat approval.
.
Monday night's meeting will provided the Council with an opportunity to
review the project, listen to a presentation by the developer, ask questions
and provide comments so the applicant can make any necessary revisions to
the plan to address outstanding issues and concerns. The Council is not
expected to make a decision at this meeting regarding approval of this
project.
General Lavout
The project consists of 9 commercial lots and 2 outlots. Walmart is proposed
to be located on a 21 acre parcel and a home improvement store, along with a
attached retail space and a freestanding retail site, will be located on a 15
acre lot. There are 5 freestanding sites along the east side of Highway 169
and 2 freestanding sites on the interior of the project, one on the south end of
the project and one between Walmart and the proposed Crossing Avenue. The
proposed layout along with the wetlands make the project appear less
crowded than originally proposed. The open area and wetlands could be
turned into an amenity for the site if landscaped properly.
The proposed Walmart will have 197,000 square feet and the proposed home
improvement store will have 112,00 square feet. An additional 38,000 square
feet of retail space is proposed for the home improvement store site. Proposed
uses for the freestanding sites includes the following:
20,000 square foot office/service
12,000 square foot office
5,500 square foot convenience store
. 3,500 square foot fast food
.
250 seat restaurant
65 unit motel
225 seat restaurant
According to the Environmental assessment Worksheet submitted for this
project there is approximately 404,200 square feet of commercial retail and
office space. The developable acreage on this project is 60.9 acres; the
resulting density is 6637 square feet per acre. For a comparison, Elk Park
Center has 374,000 square feet on approximately 50 acres for a density of
7480 square feet per acre.
Parking. Access and Streets
There will be 989 parking spaces included on the Walmart site and 741
spaces on the home improvement store site. Parking for the freestanding
sites will be reviewed when development plans are proposed. Adequate
parking is being provided for the two big box retailers.
.
Access into the site is proposed from 3 locations. Main entrances are proposed
from Main Street and Tyler Street. A secondary access is also proposed from
Tyler Street; this will be a right in and right out only located in the rear of
the proposed home improvement store. The development plans show a shared
driveway for the two lots closest to Main Street.
A city street, Crossing Avenue, is proposed to extend from Main Street about
1000 feet into the site. Access from six of the freestanding sites will be
provided from this street. Crossing Avenue is proposed to be a private drive
through the site in front of the two big box stores then become a city street
again for about 1000 feet to the Tyler Street entrance. The applicant has
indicated the appearance of Crossing Avenue will not change when the street
changes from pubic to private and back to public again.
The Planning Commission had some concerns regarding traffic flow and
people using the drive as a short cut. They felt if it was a city street, it should
be a city street all the way through the project and access points into the
Walmart and home improvement store sites should be limited. The other
option would be to have Crossing Avenue be a private drive all the way
through the project from Main Street to Tyler. Access to the street, if it were
private, could also be limited.
.
Concerns raised by the Police Department regarding the private street option
include enforcing traffic laws. Typically the Police Department does not
enforce traffic and parking laws on private property. Since the street will
function as a public street in that it will provide public access to the
individual lots and will be used by some as a connection between Main Street
.
and Tyler Street, the Police should have the ability to enforce traffic and
parking regulations. The Street Superintendent also expressed some
concerns regarding maintenance of the street. He is finding that some
developments with private roads are requesting the Street Department
conduct snow removal and maintenance on a contract basis. This can cause
some problems regarding prioritizing which streets receive first attention
when it comes to snow removal and maintenance.
The applicant will also be responsible for all the necessary improvements to
Main Street as contained in their traffic study. The City Engineer in his
memo dated 10/23/98 outlined the traffic issues.
Access to the property to the south of Lot 5 was also discussed. If Crossing
Avenue was a public street there would be no need for any access agreements
or easements ensuring the property would not be landlocked without access
to a public street.
The loading areas for both Walmart and the home improvement store face
arterial streets. Provisions for screening and making the loading areas
inconspicuous should be included in the plans.
.
Relation to Central Business District
The City is currently undertaking a visioning process for the central business
district. It is likely that this development will serve as the eastern terminus
of the central business district corridor along Main Street. It is important
the Council takes this into consideration when reviewing this project and find
ways to make the connection to the Main Street corridor. Methods to
accomplish this include architectural treatments and building materials,
pedestrian walkways, landscaping and lighting.
Architecture
As in Elk Park Center there should be some type of unifying architecture
that is included as part of the building elevations. The Council should
consider the type of exterior materials and colors they would like to see as
part of a comprehensive look to the site. Since the site has frontage on both
County Road 12, Tyler Street and Highway 169, there is not really a rear side
to the project. This is important to keep in mind when considering the design
and architecture of the buildings. Both Walmart and the home improvement
store will have large sections of their buildings facing an arterial or a
collector street; it would be worthwhile to treat all sides of the buildings,
which face a public street, as if they were the front. With input from both the
. City Council and Planning Commission, staff will be working with the
.
.
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developer on setting the architectural character of the project. Some form of
design criteria will be incorporated into the PUD agreement.
Pedestrian Access
The pedestrian access between the Walmart and the home improvement
parking lots will be widened from 20 feet to 24 feet. The sidewalk on the west
side of Crossing Avenue has been extended through to the connection with
the business park on the south end of the project. It was not extended
through to Tyler Street. Staff will recommend the sidewalk be extended to
Tyler Street.
Landscaping
The applicant has submitted a conceptual landscaping plan. A final plan will
be submitted for approval which will incorporate Planning Commission, City
Council and staff comments. It is staffs recommendation that landscape
islands be more centrally located in the Walmart parking lot to better break
up the expanse of pavement.
EAW and Wetlands
On February 16th the Council approved the proposed wetland mitigation plan
and approved the negative declaration on the need for an EIS.
Grading, Drainage and Utilitiies
Drainage, grading and utilities are addressed in the City Engineer's memo.
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Howard R. Green Company
CONSULTING ENGINEERS
OOXSt'LTING ~GI~EERS
Formerly MSA
Consulting Engineers
October 23, 1998
File: 800112J-0240
Honorable Chairman and Planning Commission
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
RE: ELK RIVER CROSSING REVIEW
Dear Planning Commission Members:
We have done an initial review of the submittal package for the Elk River Crossing commercial
development. As you are aware, this is the 70-acre Earl Hohlen property in the southeast
quadrant of TH 169 and Main Street. It would be staff's hope to follow the Trott Brook Farms
model in reviewing this project. In other words, we would hope to make a presentation on the
major issues we see with this development at Tuesday's Planning Commission meeting. After
the public hearing, we would hope for some discussion and direction from the Planning
Commission to the staff on how to proceed with these major issues. We would anticipate that
the Planning Commission would table action on this development to their next meeting. By that
time, staff and the developers can work to revise the submittal package and staff will have a
detailed list of conditions prepared for the Planning Commission to consider.
The submittal package consisted of an 8-page set of drawings, prepared by McCombs, Frank,
Roos and Associates, a draft Environmental Assessment Worksheet, a wetland report and
mitigation plan, prepared by McCombs, Frank, Roos, and Associates, and a Traffic Impact
Analysis, prepared by Benshoof and Associates, Inc. Based on our review, comments received
at the staff review meeting, and meetings with the developers, we would summarize the major
issues as follows:
A. PROJECT DENSITY
According to the Environmental Assessment Worksheet, the project is proposed to have
up to 404,200 square feet of commercial retail and office complex, located on 70.02
acres. Of the 70+ acres contained within the site, 9.12 of these acres are wetland;
therefore the developable resulting acreage is 60.9. As a comparison, Elk Park Center,
where Target and Cub Foods reside, was a development on approximately 50 acres that
contain 374,000 square feet. It appears that Elk River Crossing has a density somewhat
less than that of Elk Park Center.
O:\PROJ\800112j\0240\112-2101.oct.doc
1326 Energy Park Drive · St. Paul, MN 55108 . 612/644-4389 fax 612/644-9446 toll free 888/368-4389
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Elk River Planning Commission
October 23, 1998
Page 2
B. TRANSPORTATION ISSUES
1. The Traffic Impact Analysis report prepared by Benshoof and Associates, dated
October 1998, projects the p.m. peak hour traffic at 950 trips into the site and
1.052 trips out of the site. They go on to predict that 80% of these trips will be
new trips, and that 20% will be bypass trips. Bypass trips represent vehicles that
were already on the highway for some other purpose and decide to stop at Elk
River Crossing.
2. The report goes on to analyze the exterior street infrastructure surrounding the
development, and proposes additional improvements that will be needed. They
are as follows:
a)
Trunk Highway 169 and Main Street
.
At this intersection, they recommend the addition of a second westbound
left turn lane. from Main Street onto Trunk Highway 10, a second
southbound left turn lane. from Trunk Highway 169 onto Main Street, and
a separate westbound right turn lane with channelization. This
recommendation will result in a six-lane Main Street at the east side of TH
169. It may also require some changes to Main Street on the west side of
TH 169 to make the geometry line up.
Main Street and CSAH 13
b)
At the intersection of Main Street and CSAH 13, which will be the major
access point to the development, they suggest that the following
intersection configuration is needed:
. One eastbound left turn lane, two eastbound through lanes, and
one eastbound right turn lane.
. One westbound left turn lane, one westbound through lane, and
one westbound throughlright turn lane.
. Two northbound left turn lanes and one northbound through/right
turn lane.
. One southbound left turn lane and one southbound through/right
turn lane.
.
The report goes on to indicate that the left turn lane into the old
northbound liquor site needs to be eliminated, and the left turn lane onto
Trunk Highway 169 extended. With the proposed improvements at Main
Street and CSAH 13, major construction will be required between Trunk
Highway 169 and this first intersection, including additional lanes and turn
lanes. The report also indicates that this intersection needs to be
signalized to operate efficiently.
Howard R. Green Company
0:\PROJ\800112j\0240\112-21 01.oct.doc CONSULTING ENGINEERS
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Elk River Planning Commission
October 23, 1998
Page 3
Additional right-of-way will likely be needed from the plat to accomplish
these proposed roadway improvements
c)
The site plan shows a right-in/right-out along CSAH 12, between the main
entrance and the intersection of Tyler Street and CSAH 12, at the east
edge of the development. The Traffic Impact Analysis report indicates
that this access point will operate at a level of service B. It does not
indicate whether a right turn lane and/or short acceleration lane will be
needed for its efficient operation. It should be pointed out that this access
point does not meet Sherburne County's adopted guidelines for access
onto County State Aid Highways. This access is also of concern to City
staff.
d)
CSAH 12/Tyler Street
This is the main intersection with the City's new north-south transportation
corridor along the east side of this development. The design of this
intersection meets or exceeds the recommendation contained within the
Traffic Impact Analysis. The Traffic Impact Analysis indicates that a
signal control will need to be installed once Elk Park Crossing begins to
near full development. We have anticipated this in the design of Tyler
Street and CSAH 12, and conduits are being placed for the future
signalization of this intersection.
e)
Tyler Street/South Development Access
The design of Tyler Street at this location meets or exceeds the Traffic
Impact Analysis recommendation for lane configuration. Specifically,
there will be a dedicated left turn lane into the site, which exceeds the
Traffic Impact Analysis recommendation. One thing that Elk River
Crossing should consider is future residential development east of this
location. We would anticipate that there would be a four-legged
intersection at some point in the future.
f) Service Entrance/Tyler Street
The Traffic Impact Analysis is silent on this intersection, but the site plan
does show a full access to the rear of the large commercial sites off of
Tyler Street. Staff would recommend that a right-in/right-out be allowed
at this point for service vehicles, but that the median remain intact to
preclude left turns at this point.
Howard R, Green Company
O:\PROJ\800112j\0240\112-21 01.oct.doc CONSULTING ENGINEERS
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Elk River Planning Commission
October 23, 1998
Page 4
1. The County will likely need additional right-of-way from this development along
CSAH 12. The City would require that the development construct a 1 a-foot
bituminous pathway along CSAH 12, from the intersection of Tyler Street to
Trunk Highway 169. This will tie into the pedestrian facilities anticipated along
Tyler Street and the north side of CSAH 12, east of the intersection of Tyler
Street.
2. The interior right of way is shown at 60 feet. There is no street section indicated.
We believe that this right-of-way is too small to accommodate a commercial
access road. It should also accommodate a sidewalk to connect Main Street with
Tyler Street.
C. Environmental
1. Environmental Assessment Worksheet (EAW)
The draft has been prepared and reviewed by City staff. The developer will be
making the necessary changes and submitting the EAW to the City for signature
and start of the public comment period.
2.
Wetlands
As indicated, a wetland report/mitigation plan has been prepared for the site. It
was reviewed by the Technical Evaluation Panel (TEP). Comments were given
to the developer. After the changes are made and received by the TEP, joint
notification will be given.
3. County Ditch
Sherburne County Ditch No. 10 meanders through this site. It is the City's intent
to construct a storm sewer system along the Tyler Street alignment, which will
eventually allow the abandonment of Sherburne County Ditch No. 10. This is the
same process that was used with another leg of County Ditch No. 10 on the west
side of Trunk Highway 169. The issue that needs to be resolved will be one of
timing. The City and the developer will have to work with Sherburne County to
accommodate timing of the construction of the storm sewer system and the
abandonment of County Ditch No. 10 with the proposed schedule of the
development of Elk River Crossing.
4.
Corps of Engineers
This project will require a Corps of Engineers permit. It is our understanding that
the application for this permit has already been made, and is working its way
through the process.
Howard R. Green Company
O:\PROJ\800112j\0240\112-2101.oct.doc CONSULTING ENGINEERS
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Elk River Planning Commission
October 23, 1998
Page 5
5. Indirect Source Permit
Because of the number of parking stalls, this project will require an indirect
source permit. The developers have not made application for this permit as of
yet. It will be required prior to any activity on this project.
D. Utilities
The City is proceeding with the Eastern Area Trunk Utility Improvement, which will bring
sanitary sewer and water through Elk River Crossing. These utilities will be adequate to
sewer the proposed development.
E. Miscellaneous
1. It should be noted that this proposed development does include three properties
not yet controlled by the developer. There are three single-family lots along
CSAH 12 that the developer is negotiating with the owners for their acquisition.
2.
Drainage plans have been submitted and reviewed. They meet the necessary
on-site ponding and limit the peak outflow from the site to an acceptable level.
They may have to be adjusted slightly as the developers rework the wetland
plan.
3. The 2:1 slopes shown in the ponds are unacceptable according to City policy.
They need to be 3:1 or flatter. Again, reworking the wetland plan may address
this issue, since the Wetland Conservation Act is more restrictive than City
policy.
4. There are a few more minor issues that will be dealt with prior to the next
submittal.
If you have any questions, we will be in attendance at your Planning Commission meeting.
Sincerely,
Howard R. Green Company
. ,-~~j}/Iftz<~~
Terry J. rvG~rer, P.E.
T JM/st
Howard R. Green Company
O:\PROJ\800112j\0240\112-21 01.oct.doc CONSULTING ENGINEERS
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Howard R. Green Company
CONSULTING ENGINEERS
IiW1l
IMSl
m\SlL mG EXGI\EERS
Formerly MSA
Consulting Engineers
December 16, 1998
File: 800-112 J. 0240
The Honorable Chairman and Planning Commission
13065 Orono Parkway
P.O. Box 490
Elk River, MN 55330-0490
RE: ELK RIVER CROSSING REVIEW
Dear Planning Commissioner:
After the initial Planning Commission review of the Elk River Crossing Development at the
October 27, 1998 meeting, the developer has submitted a revised packet of drawings. The
packet we reviewed was printed on December 1, 1998 and had a latest revision date of
November 30, 1998 on several of the sheets. The plan set had 8 pages consisting of a title
sheet, boundary survey, existing conditions, preliminary development plan, preliminary plat,
preliminary grading and drainage plan, preliminary utility plan and wetland fill/mitigation plan.
In an effort to avoid redundancy and repetitiveness, we will only comment on engineering issues
and only on those items that have changed since the initial review at the October 27, 1998 .
meeting. For reference, we have attached a copy of our October 23, 1998 initial review of this
project.
Based on our review in meetings with the developer and his engineers, we would offer the
following comments on the revised plans:
A.
PRELIMINARY DEVELOPMENT PLAN
. The right-in-right-out along County Road 12 has been removed
. The full access along Tyler Street to the rear of the major tenants has been
modified to be a right-in right-out only
. The southern entrance into the site off of Tyler Street still shows a median
across the access point; however, this access point is intended to be full
access with a left turn lane off of Tyler turning into the shopping center
. Lot 1 and 2 in the northwest corner of the site are now shown to have a
common driveway
. The 6,000 square foot retail store labeled Retail "B" should be on a free
standing lot
o.proj.l112-1601.dec
1326 Energy Park Drive · St. Paul, MN 55108 . 612/644-4389 fax 612/644-9446 toll free 888/368-4389
.
The Honorable Chairman and Planning Commission
December 16, 1998
Page 2
. The development plan now shows a 6-foot sidewalk extending southerly into
the industrial site to the south. Generally a sidewalk is along the west and
southern part of the main access road coming from Main Street to this access
to the south. At that point, the sidewalk is shown on the north side of the
access road out to Tyler Street. This section of sidewalk along the north side
of the access road makes sense for anybody wanting to access the retail
opportunities from Tyler Street. We would; however, suggest that the
sidewalk also be continued along the southern side of the access road out to
Tyler Street to make a continuous path for pedestrians only wanting to cut
through the retail center
B.
PRELIMINARY PLAT
.
. Currently there are no easements showing on the preliminary plat. The
sheet has a schedule, which calls out some of the necessary easements
according to the ordinance. In addition to that, easements will need to shown
for the truck sanitary sewer and water, which comes from the west side of
Trunk Highway 169 into the site and then follows the road out to the south to
Tyler Street. There will also need to be easements shown for the internal
lateral sanitary sewer water to serve to major tenants. In addition, there
should be access easements shown for the parcel of property between Trunk
Highway 169 and the site. The final easement that will need to be provided,
although it cannot be shown on the plat, would be a sidewalk easement for
the link to the south
. Out lot "A" and "B" lying on the eastern side of Tyler Street are to be deeded
to the city according to the note shown on the preliminary plat
C.
PRELIMINARY GRADING PLAN
.
. Storm drainage for the site has been provided through a series of catch
basins and small diameter pipe conveying runoff to sedimentation ponds prior
to discharging into wetlands located on the site. Generally, all the wetlands
flow from northwest to southeast where the discharge ultimately leaves the
site. Storm drain calculations that have been previously reviewed indicated
that the ponds do an adequ~te job of reducing the amount of runoff to
predevelopment peak conditions. We have spoken with the developer and
his engineer about the possibility of taking the storm water runoff from the last
pond through the Vandenberg property to the large regional pond prior to
conveyance under the railroad tracks. This would help to minimize the size of
the storm sewer needed on Tyler Street. They have indicated that this would
be a workable solution for their development. We will proceed to work on a
final design for this type of system
. All ponds and wetlands on the site now have minimum 3-to-1 slopes.
o. proj.l112-1601.dec
Howard R. Green Company
CONSULTING ENGINEERS
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The Honorable Chairman and Planning Commission
December 16, 1998
Page 3
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. We have indicated to the developer's engineer that each of the storm sewer
collection points and ponds need to have emergency over flows indicated
such that in the case of a plugged catch basin the runoff will work its way to
the ponds without endangering any of the buildings on the site. The
developer's engineer has indicated that he has thought about this but it was
difficult to show on this large scale, but they will provide that information in
greater detail in the future.
. There is a small amount of grading shown off of the project site on a piece of
property line between the development and Trunk Highway 169. Provisions
should be made to either get permission from the property owner for this work
or revise the development plan in such a way that this grading is not needed.
D.
PRELIMINARY UTILITY PLAN
. The preliminary utility plan accurately reflects the city's trunk sanitary sewer
and water construction plans with one minor exception. The 24-inch sanitary
sewer, which comes from the lift station, will extend north into the
development then easterly to the ring load. Currently the utility plan is
showing it going directly east through private property. The developers have
acknowledged that and they will make this change in their plans and will
provide the necessary easement for this sanitary sewer
. The lateral sanitary sewer shown on the plan is adequate to provide service
to all of the lots in the development. Easements will need to be provided over
the portion of the sanitary sewer through the parking lots of the major tenants
and the private portion of the ring road.
. We have reviewed the watermain layout with Bruce West, Fire Chief, and
Bryan Adams of the Elk River Municipal Utilities. Generally, the watermain
serving the two major tenants will need to be looped and more hydrants
placed around the buildings. It is also possible the fire chief will want looping
and hydrants along TH 169, depending on the intensity of development.
Since all buildings will have to go through a site plan review, additional more
specific comments will be given at that time.
. The storm sewer that drains the public road within the development will be
publicly owned and maintained. All other storm sewers leading from the
sedimentation ponds to the wetlands and draining the parking lot and private
ring road will be privately owned and maintained
E.
ENVIROMENTAL ISSUES
. The Environmental Assessment Worksheet for this project has been review
and signed off by the city and mailed to the appropriate agencies. The period
for public comment ends on January 28, 1999.
. The Wetland report has been reviewed by city staff and send out for joint
notification. It includes a replacement plan for wetlands that are to be filled
0.proj.l112-1601.dec
Howard R. Green Company
CONSULTING ENGINEERS
.
.
.
The Honorable Chairman and Planning Commission
December 16, 1998
Page 4
by this development. The comment period for these issues will end on
December 24, 1998
. Steve Rohlf is working with Sherburne County regarding the County Ditch No.
10 issues. As the commission is aware, a portion of County Ditch NO.1 0
crosses this development. The City's construction of the storm sewer under
Tyler Street will eliminate the need for County Ditch NO.1 O. We are hopeful
that the county will work with the City to abandon County Ditch No. 10 since
the City is constructing a pipe network to replace it, while still not affecting the
development timing for Elk River Crossing
If you have questions regarding any of these comments, we will be in attendance at your
December 22, 1998 planning commission meeting.
Sincerely,
HOWARD R. GREEN COMPANY
~J#f~
Terry J. Maurer, P.E.
0.proj.l112-1601.dec
Howard R. Green Company
CONSULTING ENGINEERS
Planning Commission Minutes
December 22, 1998
Page 5
.
.
*6.6.
6.7.
.
. THAT THE NEWLY PLATTED 7.51 ACRE SITE BE LIMITED TO TRACTOR TRAILER
STORAGE ONLY.
. THAT STAFF'S COMMENTS BE INCLUDED INTO THE SITE PLAN AND LANDSCAPE
PLAN PRIOR TO CITY COUNCIL APPROVAL. STAFF'S COMMENTS ARE AS
FOLLOWS:
THE SITE PLAN SHALL INCLUDE:
. IDENTIFICATION OF ACTUAL EXISTING CONDITIONS AND PROPOSED
INCLUDING ACTUAL AND PROPOSED TRACTOR TRAILER STORAGE
AREA WITH PROPER SETBACKS.
. IDENTIFICATON OF THE SURFACE MATERIAL OF THE TRACTOR TRAILER
STORAGE AREA (SHOULD BE IDENTIFIED AS GRAVEL).
. IDENTIFY THE LOCATION OF EXISTING AND PROPOSED CONCRETE
CURB AND GUTTERS. CURB AND GUTTER SHOULD EXTEND ALONG THE
TRACTOR TRAILER STORAGE AREA PARALLEL TO 171sT AVE. NW TO
SEPARATE THE GRAVEL AREAS FROM LANDSCAPED AREAS.
. LOCATION OF DUMPSTER AND ENCLOSURE
. LOCATION OF FUEL VAULT
. LOCATION OF MONUMENT SIGN
. LOCATION OF UTILITIES
. STRIPED PARKING WITH HANDICAP STALLS
. EXISTING RETAINING WALL TO THE NORTH OF THE BUILDING
. ANY PARKING LOT LIGHTING
THE LANDSCAPE PLAN SHALL INCLUDE:
. 32 OVERSTORY TREES WITH NOT MORE THAT 50% OF THE TREES
COMPRISED OF ONE SPECIES
. 16 EVERGREEN TREES
. 16 ORNAMENTAL TREES WITH NOT MORE THAT 50% OF THE TREES
COMPRISED OF ONE SPECIES
. IDENTIFICATION OF SODDED AND SEEDED AREAS
. IDENTIFICATION OF AREAS WITH UNDERGROUND IRRIGATION
INCLUDING THE LANDSCAPED AREA ALONG 171sT AVENUE.
COMMISSIONER THOMPSON SECONDED THE MOTION. THE MOTION CARRIED
6-0.
Reauest by Associated Developers of the Twin Cities, Inc. for Preliminary Plat (Elk
River Crossinq), Public Hearinq Case No. P 98-8
Reauest by Associated Developers of the Twin Cities, Inc. for Conditional Use
Permit. Public Hearinq Case No. CU 98-26
Staff report by Scott Harlicker. Scott reviewed the revised plans for the Elk River
Crossing preliminary plat and conditional use permit requested by Associated
Developers of the Twin Cities, Inc. Scott also reviewed the issues which still need
to be addressed including the status of Crossing Avenue, median break on Tyler
Street, pedestrian accesses, design guidelines, lighting, landscaping, and EA W,
wetlands, drainage, grading and utilities issues.
Planning Commission Minutes
December 22, 1998
Page 6
.
Chair Mesich opened the public hearing.
Greg Frank of McCombs Frank Roos Associates, Inc., explained that he felt
Crossing A venue should be a public street as it enters the development so that
the immediate 4 sites can be accessed. He felt that there would be very little
thru-traffic through the remainder of the site and would be destination-oriented.
Chair Mesich asked Mr. Frank to explain where the sidewalks and trails would be.
Mr. Frank indicated that there would be a sidewalk along 3rd Street to Tyler, along
Tyler there would be a sidewalk on the west and a trail on the east, and on
County Road No. 12 the trail would switch to the north side at the residential
development.
Commissioner Chambers questioned if renditions of the home improvement
center and Wal-Mart were available. Mr. Tony Gleekel, attorney representing the
developer, indicated that he is still in negotiations with the prospective retailers
and that the design standards will be addressed in the PUD agreement. Mr.
Gleekel felt that the developer and staff will be able to agree upon a theme by
using architectural treatments and lighting that can tie in with the downtown.
Scott noted that the developer and staff will be looking for recommendations
from the Planning Commission regarding building materials, color, architectural
theme, lighting, etc.
.
Kathy Swanberg, P.O. Box 130, Becker, MN, indicated she owns property in
partnership with her father, Earl Hohlen, to the west of the proposed
development. She indicated that a portion of her property has been included in
the planning of this development without her knowledge. Ms. Swanberg
reviewed past events which indicate a discrepancy in the number of acres
included in the development, which needs to be resolved. She indicated she
strongly objects to the proposed project because of ownership issues and the
question of access to her property.
Scott Zirott, 128 Baldwin, resident of the mobile home park, stated that 3 or 4 of
the mobile home owners have not been paid off by the developer. Chair Mesich
stated that the residents should attend the City Council meeting on January
19the so that the matter can be discussed.
Stoffel Reitsma, 10860 County Road No. 12, questioned what the outlots were
going to be that are located towards Tyler. Terry Maurer, City Engineer,
explained that nothing will be done with the outlots at this time, but that they
may be used in the future in combination with Mr. Reitsma's property. Mr.
Reitsma indicated he did support the trail along County Road No. 12 switching
from one side to the other. Terry indicated that the trail can only be placed
where right of way is available and that ideally, in the future the trail will be
located on both sides of County Road No. 12.
.
Dana Anderson, Park & Recreation Commission Chair, indicated that the Park &
Recreation Commission discussed the location of the trail along County Road No.
12 and they felt the trail was better suited on the north side because of the
proposed residential development and location of Hillside Park. Mr. Anderson
also noted that the power line corridor located on the plat was previously
Planning Commission Minutes
December 22, 1998
Page 7
.
designated as a snowmobile trail connection by the Park & Recreation
Commission.
Discussion followed regarding Crossing A venue as a public street vs. a private
street. Terry Maurer indicated that access would be available to the Swanbergs
with either a public or private street.
Mr. Frank indicated that they are requesting the parking islands be approved as
requested because of future expansion plans. He felt the 30+ consecutive stalls is
a reasonable standard and compares to most cities. Mr. Frank cited the Eagan
Promenade commercial development as an example of a private street through
a development.
It was the consensus of the Commissioners to discuss design standards at a
workshop meeting.
There being no further comments from the public, Chair Mesich closed the public
hearing.
Further discussion followed regarding the status of Crossing Avenue. The
Commissioners felt the street should be either be entirely public or entirely private.
Mr. Gleekel indicated the design was based on what has worked in other
developments. He expressed concern that having private accesses within the
sites is redundant and will cause traffic to "bottleneck" when moving in and out
of the sites.
.
COMMISSIONER COTE MOVED TO RECOMMEND APPROVAL OF THE PRELIMINARY
PLAT AND CONDITIONAL USE PERMIT FOR THE ELK RIVER CROSSING PLANNED UNIT
DEVELOPMENT REQUESTED BY ASSOCIATED DEVELOPERS OF THE TWIN CITIES, INC.
WITH THE FOLLOWING CONDITIONS:
1. A DEVELOPERS AGREEMENT BE PREPARED OUTLINING THE TERMS AND
CONDITIONS OF THE PLAT APPROVAL AND INSTALLATION OF IMPROVEMENTS BE
PREPARED AND EXECUTED PRIOR TO RELEASING THE PLAT FOR RECORDING.
2. A PLANNED UNIT DEVELOPMENT AGREEMENT BE PREPARED AND EXECUTED PRIOR
TO RELEASING THE PLAT FOR RECORDING.
3. A LETTER OF CREDIT BE PROVIDED TO THE CITY IN THE AMOUNT OF 100% OF THE
COSTS OF PUBLIC IMPROVEMENTS.
4. UPON COMPLETING ALL OF THE IMPROVEMENTS AND HAVING THEM ACCEPTED
BY THE CITY, A WARRANTY BOND IN THE AMOUNT OF 25% OF THE IMPROVEMENT
COSTS SHALL BE SUBMITTED TO THE CITY FOR A ONE YEAR PERIOD.
5. SURFACE WATER MANAGEMENT FEE IN THE AMOUNT REQUIRED BY THE CITY AT
THE TIME OF FINAL PLAT BE PAID PRIOR TO RELEASING THE PLAT FOR RECORDING
WITH SHERBURNE COUNTY.
.
6. A SEALCOAT FEE IN THE AMOUNT TO BE DETERMINED BY THE CITY ENGINEER BE
PAID TO THE CITY PRIOR TO RELEASING THE PLAT FOR RECORDING WITH
SHERBURNE COUNTY.
Planning Commission Minutes
December 22. 1998
Page 8
.
7. THE NECESSARY DRAINAGE AND UTILITY EASEMENTS BE DEDICATED ON THE PLAT
AS REQUIRED BY THE CITY.
8. ALL COMMENTS OF THE CITY ENGINEER BE ADDRESSED.
9. ALL APPROPRIATE WETLAND PERMITS MUST BE OBTAINED PRIOR TO
COMMENCING WORK ON THE SITE.
10. RESTRICTIVE COVENANTS BE PUT IN PLACE OVER THE WETLANDS, THESE SHALL BE
COMPLETED AND RECORDED WITH THE PLAT.
11. A BOND COVERING THE COST OF THE WETLAND MITIGATION IS REQUIRED AND
SHALL BE MADE PART OF THE DEVELOPERS AGREEMENT.
12. PAYMENT OF PARK DEDICATION FEES IN THE AMOUNT REQUIRED BY THE CITY AT
THE TIME OF FINAL PLAT BE PAID PRIOR TO RELEASING THE PLAT FOR RECORDING
WITH SHERBURNE COUNTY.
13. APPROPRIATE CROSS- ACCESS / CROSS PARKING EASEMENTS, INCLUDING
ACCESS EASEMENTS SOUTH OF LOT 5, SHALL BE APPROVED BY THE CITY AND
RECORDED WITH THE FINAL PLAT.
14. OUTLOTS A AND B SHALL BE DEEDED TO THE CITY.
.
15. A FINAL LANDSCAPE PLAN AND LIGHTING PLAN BE SUBMITTED AND APPROVED
BY THE CITY.
16. DESIGN GUIDELINES BE SUBMITTED AND APPROVED BY THE CITY.
17. THE PEDESTRIAN ACCESS BETWEEN THE WALMART AND HOME IMPROVEMENT
PARKING LOTS BE WIDENED TO 24 FEET.
18. THE SIDEWALK ALONG THE WEST SIDE OF CROSSING AVENUE BE EXTENDED TO
TYLER STREET.
19. THE TWO LOTS ON CROSSING AVENUES CLOSEST TO MAIN STREET HAVE A
SHARED DRIVEWAY.
20. NO ACCESS BE ALLOWED, EXCEPT FOR CROSSING AVENUE, ON TO MAIN STREET
OR 18151 AVENUE (COUNTY ROAD 12).
21. THE LANDSCAPE ISLANDS IN THE WALMART PARKING LOT BE MORE CENTRALLY
LOCATED AND ADDITIONAL LANDSCAPED ISLANDS SHALL BE PROVIDED TO THE
NORTH AND WEST.
22. A SIGN AGREEMENT OUTLINING THE LOCATION AND SIZE OF FREESTANDING
AND WALL SIGNS BE MADE PART OF THE PUD AGREEMENT.
23. A 10 FOOT PEDESTRIAN EASEMENT BE DEDICATED TO ALLOW FOR THE SIDEWALK
CONNECTION BETWEEN THIS PROJECT AND THE BUSINESS PARK TO THE SOUTH.
.
Planning Commission Minutes
December 22, 1998
Page 9
.
24. TRASH COMPACTOR/DUMPSTER ENCLOSURES THAT MATCH THE EXTERIOR
BUILDING MATERIAL AND COLOR BE PROVIDED FOR EACH BUILDING AND/OR
TENANT.
25. THE THRU-STREET, CROSSING STREET, SHALL BE EITHER COMPLETELY PRIVATE
OR COMPLETELY PUBLIC. IF A PUBLIC STREET, THE ACCESSES SHALL BE LIMITED
AS RECOMMENDED BY STAFF AND THE CITY ENGINEER.
26. THE DEVELOPER SHALL BE IN COMPLIANCE WITH THE CITY'S MOBILE HOME
ORDINANCE PRIOR TO FINAL PLAT APPROVAL.
COMMISSIONER THOMPSON SECONDED THE MOTION. THE MOTION CARRIED
6-0.
7.1 . Action taken on Planning Items at the December 21, 1998 City Council Meetinq
Commissioner Schuster advised the Commissioners of action taken by the Council
on planning issues at the December 21, 1998, City Council meeting.
8. Adiournment
There being no further business, COMMISSIONER COTE MOVED TO ADJOURN THE
MEETING. COMMISSIONER THOMPSON SECONDED THE MOTION. THE MOTION
6-0.
.
The meeting of the Elk River Planning Commission adjourned at 9: 15 p.m.
Respectfully submitted,
fll./I(L' WtuhLkU
Debbie Huebner
Recording Secretary
.
.
.
.
Planning Commission Minutes
November 24. 1998
Page 4
6.4.
~.5.
6.6.
COMMISSIONER COTE SECONDED THE MOTION. THE MOTION CARRIED 5-1.
Commissioner Cote opposed.
COMMISSIONER KUESTER MOVED TO RECOMMEND APPROVAL OF ORDINANCE NO.
98--, AN ORDINANCE AMENDING THE CITY OF ELK RIVER ZONING MAP TO
REZONE CERTAIN PROPERTY FROM R1C (SINGLE FAMILY RESIDENTIAL) TO C4
(NEIGHBORHOOD COMMERCIAL), PUBLIC HEARING CASE NO. ZC 98-10, BASED ON
THE FOLLOWING FINDINGS:
1. THE REZONING IS CONSISTENT WITH THE COMPREHENSIVE LAND USE PLAN
DESIGNATION OF CC (COMMUNITY COMMERCIAL).
2. TIMES AND CONDITIONS HAVE CHANGED TO WARRANT THE DEVELOPMENT OF
THIS PROPERTY AS NEIGHBORHOOD COMMERCIAL.
3. THE PROPERTY IS ADJACENT TO A MINOR ARTERIAL WHICH CAN MEET THE
TRANSPORTATION NEEDS OF BUSINESSES ALLOWED UNDER THE C4 ZONING
DISTRICT.
4. THE PROPOSED C4 ZONING DISTRICT IS COMPATIBLE WITH THE ADJACENT
ZONING DISTRICTS.
5. THE PROPERTY IS WITHIN THE URBAN SERVICE AREA AND IS WITHIN CLOSE
PROXIMITY TO EXISTING SERVICES.
COMMISSIONER CHAMBERS SECONDED THE MOTION. THE MOTION CARRIED 5-1.
Commissioner Cote opposed.
Reauest by Associated Developers of the Twin Cities. Inc. for Rezonina. Public
Hearina Case No. ZC 98-9
Reauest by Associated Developers of the Twin Cities. Inc. for Preliminary Plat (Elk
River Crossinal. Public Hearina Case No. P 98-8
Reauest by Associated Developers of the Twin Cities. Inc. for Conditional Use
Permit. Public Hearina Case No. CU 98-26
Staff report by Scott Harlicker. Associated Developers of the Twin Cities has
requested the following:
1. Rezoning 60.43 acres from C3 (Highway Commercial and R2b (Two family
Residential) to PUD (Planned Unit Development)
2. Preliminary plat of 60 .43 acres into 9 commercial lots and 2 outlots
3. A conditional use permit for a 60.43 acre commercial Planned Unit
Development
Scott explained changes made in the plat since the last Planning Commission
reviewed as follows: The building orientation of the Wal-Mart store has changed.
Planning Commission Minutes
November 24, 1998
Page 5
.
leaving the wetland area open; the right-in-right-out and the free-standing office
building has been eliminated; the city right-of-way for Crossing A venue ends at a
point and becomes a private access road; there is a median pedestrian access
through the middle of the site, a sidewalk is proposed off of Tyler to the home
improvement store, and connects with the business park property. Scott
indicated the number of lots in the preliminary plat have been reduced, 2 office
lots which incorporate the wetlands, and the freestanding sites along Highway
169. Scott indicated the grading plan has been changed to incorporate the
required 3: 1 slopes. Scott reviewed issues associated with the utilities, wetlands,
EAW, and landscaping plan. He recommended clustering some landscaping
along Highway 169. He suggested screening the back of the office building to
replace the stand of oaks. Scott explained the location of the pylon sign and
entry signs as indicated on the landscaping plan, noting that no other signage
information is available at this time. Scott requested that the applicant provide
the following:
.
-Show relocation of gasline easement
-Extension of the sidewalk on the south side of the street and connect with Tyler
-Realign sidewalk shown on plat so that it lines up with the access into the
Wal-Mart
-Include landscaped islands across the center of the parking area for both the
Wal-Mart and home improvement center lot, to break up the parking lot, control
traffic flow through the site and provide shade.
-Widen/enhance the landscape strip
-Provide elevations, parking calclJlations, signage, impervious surface
calculation
-Provide drainage and utility easements on the plat
-Provide information on uses at various points of the home improvement center
and Wal-Mart and impact on the UPA easement.
Scott indicated that since staff has not been given adequate time to review the
preliminary plat and conditional use permit, staff recommends postponing these
issues until the December 22 meeting. However, staff believes that the
requirements for the rezoning request have been met and recommends approval
of the rezoning request to PUD at this time.
Commissioner Chambers asked if there is a break in the landscaped island
between the two sites for vehicles to drive through. Scott stated that it would not
be possible to drive through.
Tony Gleekel, representing the applicant, Mathew Fischer, stated that he felt most
of the concerns expressed by the Planning Commission at the November meeting
have been addressed. Mr. Gleekel noted that the landscaping plan is a
conceptual plan and ttiat each user will need to submit specific plans for their
site, as required in the PUD agreement.
Greg Frank, civil engineer for the project, explained the following changes to the
plans:
.
-right-in-right-out and corresponding lot have been eliminated
-accesses will be from 3rd A venue and future Tyler Street, and right-in-right-out
truck access in back of the home improvement site.
Planning Commission Minutes
November 24, 1998
Page 6
.
-3: 1 slopes have been met and the wetland has been preserved by separating
the Wal-Mart and home improvement sites
-ponding areas have been platted as lots
-pedestrian corridor from 3rd A venue is 20 foot wide with a 6 foot wide sidewalk.
-a common access is shown in the plat for Lot 1 and Lot 2
-tie-in point of Wal-Mart and the home improvement site will be toward the front
of the buildings
-a portion of the public street has been eliminated and will be a private access
into the parking lots.
Chair Mesich asked Mr. Frank to explain the route of the truck traffic. Mr. Frank
explained where the loading docks are located and how the trucks will move
through the site.
Mr. Frank indicated that a fenced garden center will be located within the UPA
easement and UP A has expressed approval for this type of use. Mr. Frank noted
that they also have received approval from Minnegasco to relocate the gas
pipeline and Minnesgasco will work jointly with the developer in the relocation
design.
Mr. Frank explained that 5 parking stalls per 1,000 sq. ft. are included in the plans
for the 204,000 sq. ft. Wal-Mart, and also 5 parking stalls per 1,000 sq. ft. for the
112,000 sq. ft. home improvement center. He noted that the same number of
parking stalls are shown for retail sites A & B (5 per 1,000 s.f.).
.
Commissioner Kuester asked where the gas pipeline will be relocated. Mr. Frank
explained the tentative alignment and noted that a final determination will be
made by Minnegasco. Commissioner Kuester questioned if they plan to have
one pylon sign for the PUD. Mr. Gleekel indicated they would like to have more
than one pylon sign; one identifying "Elk River Crossing" and one identifying the
two "big box" retailers.
Commissioner Cote questioned why a median is shown for the truck traffic
access. Mr. Frank indicated that it was an error and the access will be a right-in-
right-out only.
Commissioner Kuester asked where the access points would be for the other sites.
Mr. Frank indicated those access points have not yet been determined. Mr.
Gleekel indicated their engineers will work with city staff to determine general
locations of the access points.
Chair Mesich opened the public hearing for the three requests. There being no
comments from the public, Chair Mesich closed the public for the rezoning
request.
.
COMMISSIONER KUESTER MOVED TO CONTINUE THE PUBLIC HEARING FOR THE
PRELIMINARY PLAT AND CONDITIONAL USE PERMIT REQUESTED BY ASSOCIATED
DEVELOPERS OF THE TWIN CITIES, INC. TO THE DECEMBER 22, 1998, PLANNING
COMMISSION MEETING. COMMISSIONER COTE SECONDED THE MOTION. THE
MOTION CARRIED 6-0.
.
.
.
Planning Commission Minutes
November 24, 1998
Page 7
Commissioner Cote questioned if the property to the west was included in the
development discussions. Peter Beck indicated the applicant does not have
ownership of this property and it is not included in the plans.
Chair Mesich asked for clarification on the drainage plan. Mr. Frank explained
the drainage plan and stated that all the storm water will be collected in a
sedimentation pond before going into an existing wetland or the mitigation areas
as shown on the plans in blue. He felt the hydrology of the site will be improved
as a result of the mitigation.
Commissioner Cote indicated he did not have a problem with the plans and
supported the rezoning.
Peter Beck explained that the city has approved rezoning requests prior to
approval of the preliminary plat and conditional use permit for projects.
Commissioner Cote expressed his approval of the changes made in the wetlands
and building orientation of the two large retail sites. He expressed some concern
for the private street and the access, and he indicated that he would like to see
the parkway between the two developments widened. He expressed support
proof of parking needs. Commissioner Cote indicated he also supported the
extension of the sidewalk along Crossing Avenue, and the sidewalk connection to
the business park.
Commissioner Kuester indicated she supported widening of the walkway
between the two sites and also has some concerns about the traffic flow through
the sites.
Commissioner Cote indicated that he felt the opportunity for extension of the
city's streetscape theme would be lost if the public street ends and becomes
private. Chair Mesich agreed that the aesthetics would be lost. He supported
the continuation of the sidewalk.
Commissioner Chambers provided the developers with photos demonstrating
how a streetscape can be incorporated into a development.
Chair Mesich felt it would be difficult to blend a particular theme with the sites
being separated. Commissioner Chambers questioned the developers whether
or not the large users would be willing to incorporate an architectural theme. Mr.
Gleekel indicated the city will have some control on this issue and that covenants
can be used. He felt that there are architectural treatments available which can
be used to tie the look of the buildings together.
Mr. Gleekel indicated that landscaping and lighting can be used to tie into a
streetscape. He felt this issue could be discussed further at the December 22nd
Planning Commission meeting. He noted that Wal-Mart does has 4 -5 renditions
of their building, so there may some flexibility in meeting the city's concerns. Mr.
Gleekel indicated they will be working with staff to discuss what the ordinance
requires and possible covenants.
Planning Commission Minutes
November 24. 1998
Page 8
.
Peter Beck indicated that if the plans were complete for the two large users, their
conditional use permits could be approved as part of the approval of the overall
project.
COMMISSIONER MOVED TO RECOMMEND APPROVAL OF THE REQUEST BY
ASSOCIATED DEVELOPERS OF THE TWIN CITIES FOR A REZONING FROM C3
(HIGHWAY COMMERCIAL) AND R2B (TWO FAMILY RESIDENTIAL) TO PUD (PLANNED
UNIT DEVELOPMENT), BASED ON THE FOLLOWING FINDINGS:
1. THE PROPOSED REZONING COMPLIES WITH THE REGULATIONS SET FORTH IN
SECTION 900.12(17).
2. THE REZONING IS CONSISTENT WITH THE COMPREHENSIVE LAND USE PLAN
DESIGNATION OF HC (HIGHWAY COMMERCIAL).
3. TIMES AND CONDITIONS HAVE CHANGED TO WARRANT THE DEVELOPMENT OF
THIS PROPERTY AS A PUD.
4. THE PROPOSED PUD ZONING IS COMPATIBLE WITH THE ADJACENT ZONING
DISTRICTS.
5. THE PROPERTY IS WITHIN THE URBAN SERVICE AREA AND IS ABLE TO BE SERVICED
BY MUNICIPAL SEWER AND WATER.
COMMISSIONER CHAMBERS SECONDED THE MOTION. THE MOTION CARRIED 6-0
.
COMMISSIONER COTE MOVED TO POSPONE THE REQUEST BY ASSOCIATED
DEVELOPERS OF THE TWIN CITIES, INC. FOR PRELIMINARY PLAT (CASE NO. P 98-8)
AND CONDITIONAL USE PERMIT (CASE NO. CU 98-26), TO THE DECEMBER 21, 1998,
PLANNING COMMISSION MEETING. COMMISSIONER MORRIS SECONDED THE
MOTION. THE MOTION CARRIED 6-0.
6.7.
Reauest bv Amcon for Preliminary Plat (Elk River Business Park, L.L.C.L Public
Hearina Case No. P 98-7
Staff report by Scott Harlicker. Amcon has requested preliminary plat approval to
subdivide 40 acres into 7 lots (Elk River Business Park). Scott recommended that a
sidewalk be installed with a connection to the retail development to the north.
He indicated the easements need to be shown on the plat and that access to
the property to the west should be included as part of this plat. Scott noted that
a wetland mitigation plan has not yet been received, but Terry Maurer did not
anticipate the layout of plat will change significantly. Also, the City Engineer
requested that the grading plan be approved prior to final plat. Scott explained
that the County Ditch shown on the plat will likely be abandoned when city
sewer and water are extended.. Staff recommends approval of the request with
the conditions outlined in the staff report.
.
Discussion followed regarding location of the easements, parking, and access
issues. Peter Beck stated that the applicant is being required to provide a private
easement for access to the property to the west. Commissioner Kuester asked
where the sidewalk would be located. Scott indicated the exact location is not
known at this time. Peter Beck suggested that a condition be included that the
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~ February, 1999 - From Kathy Swanberg, Becker, 55308
Re: Associated Developers of the Twin Cities, Inc. for -
Preliminary Plat (P98-8)
Conditional Use Permit (CU98-26)
To the City of Elk River:
My husband, Bill, & I have 50/S0 partnership with my parents, Earl
& Lorraine Hohlen, as owners on 2 land parcels on the E. side of
;#169.
'The developer's preliminary plan l^lhich PRECEDED this current plan
h~Q Crossing Avenue going all-the-way thro, but then PROCEEDED to
change it by ENDING it as a cul-ti-sac, declaring the in-between
as a 'PRIVATE' road and then the remainder becomes a street to
connect Tyler street.
Two months ago, at the Planning Commission meeting, I voiced my
ob~ection to this current plan.
.
If our FUTURE plans were ever to subdivide our parcels, etc., we
,,,ould maybe need an EXIT/ENTRY outlet on the top left side. But
the developers have declared that as a 'PRIVATE' road, of which I
highly question & believe that the developers, including my dad
who is in partnership with them, will make it IMPOSSIBLE or NOT
AFFORDABLE, ETC. for us to get EXIT/ENTRY to this so-called 'Pri-
v'lte' road:
Many of the mobile home park residents were badly abused by my dad
& Tonv Gleekel, who represents these developers, and why did they
threaten to make my land USELESS, LANDLOCKED & WORTHLESS - JUST AS
they have tried to devalue Mevissen' s & '."larden' s land1:?:
'Ne landovmers stepped forward many times before the city, in order
to EXPOSE these INTOLERABLE METHODS & TACTICS, which has kept Tony
Gleekel in charge of controlling this development process in the
city by misleading everyone:
Not only MISLEADING the city & also causing the Mevissen'& Warden
properties to actually be entered into a power of eminent domain
process, when the Mevissen's & Warden's were not even given warn-
in~ or notice of all these events:
This association of developers prepared SEVEN OR MORE option and
purchase agreements (Exhibits A,B,C,D & E) starting 5 yrs. ago on
January 7, '94, which included our land. But all this was done
without our knowledge or our signatures & ALL UNBEKNOWN to Bill &
I until just last year:
.
I'm sure VTe would NOT have even known today, had it No'r been nec-
essary for dad & Matt Fischer (Pres. & owner of thi$. developer's
association) who NEEDED our signatures last year to petition the
city for installation of trunkline improvements for the NEXT STAGE
OF THEIR DEVELOPMENT PROJECT~ - (Petition is Exhibit F).
(p~. 1 & continue to pg. 2)
.
.
.
(Continued, pg. 2 - Febru8ry, '99 (Kathy Swanberg) - P98-8 &CU9826)
Bill & I held-out signing this petition, as we gently but firmly
kept asking dad why this petition involved us, which FINALLY FORCED
dad to admit he inclur'led our land in this development project in
option & purchase agreements.
Later we discovered these agreements were DESIGNED & EXECUTED to
include thA signatures of ONLY my parents & this association of de-
veloners & all of which were TOTALLY UNBEKN01iIfN to Bill & I from
Jan. of '94 all thro into '98:
Dad's ovm acres total up to 62.40 acres, therefore, as you C8n see
(in Exhibits A thro &) that dad & this ~ssoci~tion TOOK CONTROL of
our nropertv from '94 all the way into '98. Starting with the 1st
5t acre parcel & then the other 5t acre parcel for a total of 11
plus acres. withOUT OUR KNOWLEDGE:
All along they MISLEAD the city saying that we landowners have
been UNWILLING to sell, etc. & asking for an UNREASONABLE price,
etc.
I beg to differ: JUST HOW cnuld we have been illiWILLING & UNREASON-
ABLE when we did NOT EVEN KNOW they had ALL our land included in
this development?:?:
Matt Fischer never approached us with any purchase offer or any
round table discussions, problem solving or anything. Yet, he &
dad wanted us to sign the petition so they could PROCEED with
their project. Or was it meant to PREVENT L-I-A-B-I-L-I-T-Y ?:?:
So, what gives them the right to +'hreaten to D-E-V-A-L-U-E our
land into being landlocked, useless & worthless?:?: - JUST BECAUSE
they did NOT get away with ABDUCTING BOTH our land parcels?:?:
I am QUITE SUSPICIOUS of their REASONING for this so-called 'PRI-
VATE' road in this plan, because how better to fulfill their threats
to DEVALUE our land, FOR they do NOT know how to NEGOTIATE, ETC. &
~OE: to those who g~t in their way::
Upon Tony Gleekel's REQUEST of the city to CONSIDER putting Mevis-
sen's & WardAn's land parcels into the powere of eminent domain
process, the consensus of the EDA on Nov. 9, '98 was that IF these
nroperty ovmers were UNWILLING to sell or IF they were holding-out
for an UNREASONABLE price that thAv would be in favor of going thro
the power of eminent domain process to ACQUIRE SUCH PROPERTY: - and
of which process the city did st~rt later.
Which is why we landowners approached the city at several meetings,
so we could help problem-solve, because Tony Gleekel has been mis-
leading everyone all along:
Quite the contrary, Mr. Gleekel: You & dad are the ones who are
UNWILLING & UNREASONABLE, to say the least:
(Pg. 2 & continue to pg. 3)
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(Continued, pg. 3 - February, '99 (Kathy Swanberg) - P98-8 & CU9826)
Therefore, if Tony Gleekel is able to continue his methods & tactics
in the future and also manage to cause my land to be part of any
poweru of eminent dom~in process, etc., whereas he had already mis-
le~d~he city by saying that I am also UNWILLING AND UNREASONABLE,
I must re~d this short letter, which I wrote to Matt Fischer on
Sept. 10, '98 & again on Oct. 2, '98, (Exhibits H & I).
I ~lso enclosed a proof of mailing certificate (attached to Exhibit
I ) .
In closing, Mr. Gleekel, where do you read ANY UNWILLINGNESS OR ANY
UNREASONABLENESS OR LIES AS YOU ACCUSED ME OF IN THIS LETTER?~?
Th~nk you, to the Elk River City Council for your time and efforts
~iven to us these past few months:
~.l('t ~ "\ ~ "'\,.l ~ e.te. ~
Kathy Swanberg - P.O. BOX 130 - Becker, 55308 - 612 261-5670
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_Er-. \-b' ~~ \" ..f\ t= ~e,. / '\ a \
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PURCHASE A( J.-:-u.~
\ m.S ~u.~ ~~M..t:W1 ~&... ''1(, 't:f7 +'t~
THIS PURCHASE AGREEMENT made this \"3 ~\ ;). I
by and. between ASSOCIATED DEVELOPERS OF THE TWINCITIES, INC-.-;-"-a--MinrieS.ota
corporation, its assigns ("Buyer") and EARL H. HOHLEN AND LORRAINE HOHLEN,
("Sellers") :
RE9ITALS:
A. Sellers are the fee owner of the parcel of land consisting of
approximately seventy-three (73) acres situated in the City of Elk River,
Sherburne County, Minnesota, legally described on the attached Exhibit A (the
"Land" ) .
B. Sellers wish to convey, and Buyer wishes to pur~hase the Land,
together with all rights, privileges, easements, and appurtenances belonging
thereto (hereinafter referred to as the "Property").
__ NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions contained herein, the, parties agreeing to be legally bound
hereby, agree as follows:
1. Sale of Property. Sellers agree to sell to Buyer, and Buyer agrees
to purchase from Sellers approximately seventy-three (73) acres of Property
located in Elk River, Sherburne County, Minnesota, the legal description of
which is governed by a survey to be completed by a registered surveyor,
consistent with the legal description and map attached hereto as Exhi bi t
A and by which survey shall be incorporated herein together with all easements
and rights appurtenant thereto ("Property").
2. Purchase Price. The purchase price to be paid by the Buyer to
the Sellers for the property described in Exhibit A shall include the
following:
(a) $1. 25 per square foot as defined in Section 5 of this Agreement;
and
(b) a one-half interest in the corporation described as the Associated
Developers of the Twin Cities, Inc., a Minnesota corporation, being
a party to this Agreement as the Burer, but which equity or share
of said corporation shall not be transferred or conveyed to the
Sellers until the execution of this Agreement by all parties.
It is the intention of the parties to provide the Sellers with
a full an equal share of any gain from the development of the lands
and premises described in Exhibit A, acquired by the Buyer pursuant
.~o ,the provisions of this Agreement.
(c): Upon the request of the Sellers any portion of the purchase price
may be paid or satisfied by the use of Section 1031 Tax Deferred
Exchanges, providing that the Sellers notify the Buyer in writing
of the property which .is to be the subj ect of such exchange and
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that the Sellers assume the responsibility of ascertaining the
marketability of such proposed exchange property.
In addition to the tax deferment, the purpose of such exchange
may, but is not necessarily limi ted to -the purpose of providing
the Seller with property for the relocation of the manufactured
home park and related business presently being conducted on a
portion of the property described in Exhibit A.
3. Development Costs. Buyer has incurred and expended money for
development costs of the.lands and premises described in Exhibit A including,
but not limited to, attorney fees, engineering fees, consulting fees, and
other site costs, and intends to incur additional development costs in carrying
out its obligations under the provisions of this agreement.
The parties acknowledge that it is Buyer's intention to subdivide the
Property for sale to third parties (for commercial development) and that some
development costs have already been incurred. Notwithstanding Buyer's
intention, Buyer has the option to develop the Property and either sell or
lease the improved property. The parties agree that additional development
costs will be incurred .in any event.
Unless otherwise agreed to in writing by Buver and Seller, Buver's
Development Costs must be reasonably substantiated pursuant to industry
standards and procedures. The Development Costs, as identified in Exhibit
B, shall include, but not be limited to" the following:
A.
Site and Finish Grading,. Costs of all grading necessary for the
development of the Property.
B. Utilities. All installation of, deposits for or letter of credit
fees incurred for electrical, gas and telephone services to the
Pr~perty.
Buyer agrees in its reasonable discretion to the utilization of
existing electrical transmission lines by elevating such lines
wherever possible in lieu of relocating such lines, and acquiring
the easements necessitated by such relocation in order to minimize
the costs and expenses relating to such transmission lines.
C. Sanitary and Storm Sewer and Watermains. Installation or assessment
for all required:
i. Sanitary sewer trunks, laterals, services;
ii. Watermain trunks, laterals, and services; and
iii. Storm sewer, trunk and laterals, water quality and storage
facilities.
D.
Streets. Installation of, or assessment for, all collector and
local streets.
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E.
Landscaping and Amenities. Installation of all required seed,
sod, trees, landscaping and amenities. Amenities shall include
monument signs, foot bridges and other required amenities.
F. Platting and Survey. All costs, including attorney's, engineering
and consultant's fees, incurred in the preparation and submission
for approval, rezoning and other zoning approvals, preliminary
plat, final plat, final d~velopment plan and other requirements
and documents required by the City of Elk River, Sherburne County
or State of Minnesota for the development of the Property.
G. Construction Management. On-site management of the development.
H.City Charges. Charges by the City of Elk River for engineering"
legal or administrative costs resulting from Buyer's submissions
of necessary approvals for the development of the Property, and
any other fees required by the City.
I. Finance Costs. Costs for any Letter of Credit or credit enhancement
required by the City of Elk River or any governmental unit's utility
provider, loan commitment, title policy, recording, marketing and
reasonable legal fees, and loan origination fees, or any other
financing costs.
J. Advertising and Closing Costs. Costs for brochures, signs necessary
to promote the development, and reasonable closing costs.
K.
Real Estate Taxes. Real estate taxes due ,and payable in the year
of this Agreement shall be paid by Seller and Buyer, pro rata as
of the Date of Closing. Seller shall pay, without deferral, all
delinquent taxes, penalties and interest thereon or before the
Date of Closing. Real estate taxes for new tax parcels subdivided
from the Property ("New Tax Parcel") are as follows:
i. Real estate taxes required to convey each New Tax Parcel upon
the sale to a third partYi and
ii. The pro-rata share of real estate taxes due and payable for
the entire Property, calculated as follows:
real estate taxes due and' payable in any given year are
allocated solely to the PropertYi
real estate taxes for the Property for the year are
allocated only to a New Tax Parcel which is recovered
by Buyer as a Development Cost pro rata for each New
Tax Parcel sold in the portion of the Property.
L.
Special Assessments. Seller shall pay all special assessments
pending and/or levied against the Property as of the Date of
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M.
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Closing, except special assessments caused or created by Buyer's
development of the Property related to any development agreement
or contract for private development required by the City of Elk
River. On or before the date on which installments thereof are
due, provided that all special assessments payable by Seller
pursuant to this paragraph with respect to any New Tax Parcel shall
be paid in full no later than the date of closing of the sale of
a New Tax Parcel by Buyer to any third party. Buyer as a
development cost shall pay. all special. assessments levied and/or
pending after the Date of Closing or incurred as a result of the
development of the Property.
Attorneys and Consulting Fees.
i. Attorneys and consulting fees incurred by Seller or Buyer
to negotiate this Agreement shall not be development costs
and shall be the responsibility of the party incurring such
costs.
ii. Attorneys and consulting fees as well ~s all costs associated
with the sale of the Property, or any portion thereof, shall
be considered as Development Costs.
The parties agree that the Buyer may have incurred or expended
funds that were neither necessary or incidental to the development
of the subject premises undertaken by the Buyer pursuant to the
provisions of this Agreement, and that such expenses, if any, will
not be included as Development Costs for the purposes of this
Agreement.
4. Payment Terms. Buver shall pay Seller. for the property pursuant
to the following terms and conditions:
(a)
(b)
Twenty-five Thousand Dollars ($25,000.00) as earnest money ("Earnest
Money") .
Two Hundred Twenty-five Thousand Dollars ($225,000.00) cash at
closing.
(c)
At closing, the Buver shall execute a Promissory Note payable to
the order of the Sellers in an amount as determined by subparagraph
2(a) above less the earnest money and cash or cash equivalent
of Section 1031 exchange property paid at closing pursuant to this
paragraph of the Agreement. Which Note. shall bear interest at
the rate of ten percent (10%) per annum, and be secured by a non-
recourse first Mortgage in favor of the Sellers on the lands and
premises described in Exhibit A.
(d)
The Mortgage and Note shall include terms for the payment for and
release of portions of the Property, upon the sale of the Property
or any portion thereof, (e.g., upon the sale of a New Tax Parcel):
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(e)
.
Pursuant to the terms of the Mortgage and Note, Buyer's payment
to Sellers and Seller's delivery of partial releases of the Mortgage
and for portions of the Property, shall occur following the sale
of any portion of the Property to a third party upon payment to
the Seller of the Adjusted Release Price as defined in the Note.
(f) Within thirty (30) days from the date Buyer closes on the sale
},A of the property, or any portion thereof, to a third party, and
'n.dEIII( ~a.s~~en paid in full for said sale, Buyer shall pay Seller
_111 (). · percent ($p%) of the net proceeds from the sale of each
o<Mi portion of the property in excess of the pro rate portion of each
parties share of the development costs for the property sold.
(g) For purposes of paragraph 4(e), Buyer's Development Costs shall
be actual, if known, and otherwise reasonably estimated.
5. Square Footage. For purposes of calculating the purchase price,
square footage shall not be reduced by any claim or allegation that a part
of the lands and premises described in Exhibit A is defined by any city, state
or federal government entity, agency or authority as a wetland, public water
or sensitive ground water area. The parties agree that the City of Elk River
,
is the appropriate authority to determine and define such wetland, public
water or sensitive ground water area, and that if any part of the lands and
premises described in Exhibit A is so identified that the Buyer in developing
drainage of said land for the purposes of its development will undertake to
negotiate the elimination or minimization of such area. Only in the event
of a catastrophic and unexpected results from such efforts will the effect
thereof become a factor modifying the provisions of this Agreement, and then
only to the extent, determined by a neutral arbitrator after examining evidence
submitted by the parties.
.
6. Contingencies. The obligations of Buyer under this Agreement are
contingent upon the following:
(a)
(b)
(c)
.
The representations and warranties of Sellers contained in this
Agreement must be true now and on the date of closing as if made
on the closing, unless waived by Buyer;
Buyer is satisfied in its sole discretion with a Phase I hazardous
waste and environmental review ("Assess1,11ent") of the Property,
together with a physical inspection and investigation of the
Property ("Inspection");
As soon as possible, Sellers shall deliver to Buyer, any survey
of the Property in Sellers' possession;
(d)
The securing by Buver of the uncondi tional approvals of all city,
county, state and federal licenses, permits, plat approvals,
development agreement(s) and other approvals necessary for Buyer
to construct a retail development on the Property;
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(e)
There will be no general moratorium imposed by any governmental
authority with respect to the issuance of building permits affecting
the development of the Property or sanitary sewer, water, natural
gas or electricity connections with respect to the Property;
(f) Prior to closing Buyer shall have obtained, at its sole cost, the
report of a duly licensed soil engineer with respect to the soil
conditions of the Property or as much thereof as Buyer deems
necessary, and Buyer, in "its sole discretion, shall be satisfied
with the form and content of such report;
(g) Prior to closing Buyer shall have obtained commitments from
providers of utility services in form and content solely acceptable
to Buyer insuring adequate sanitary sewer, storm sewer, water,
natural gas, electricity, and telephone service to accommodate
Buyer's ~ntended use of the Property;
(h) If required bv any governmental authority, Buyer shall have the
right, but not the obligation to authorize and complete an
Environmental Assessment Worksheet or Environmental Impact Statement
the results of which would allow Buyer, at Buyer's sole discretion,
to go forward with Buver's development of the Property;
(i)
.
(j)
(k)
(1)
.
Prior to closing, Buyer shall have obtained from requisite
governmental authorities unconditional approval for reasonable
access to the Property which is sufficient for the Buyer's
development of the Property, except for additional access to U. S.
Highway No. 169, which both parties acknowledge to be inattainable
or unreasonably difficult to obtain.
Buyer shall determine, in its sole discretion, that it will only
have to pay for (or be assessed) the actual costs of the utilities
to the Property, ahd not the area wide utility costs and/or the
cost of any lift station(s) or other utility improvements necessary
for area wide service. Buyer will use reasonable efforts to
negotiate with the City or other governmental authority regarding
the cost for utilities.
Within ten days from the date of the execution of this Agreement,
Sellers shall properly serve each and every resident of the
manufactured home park currently residin~ on the Property the notice
required by Minnesota Statutes, and Minnesota Rules and Regulations,
regarding their vacation from the Property and relocation to another
property. Those obligations herein are not contingent upon Seller
finding an alternative site to relocate the current manufactured
home park residence.
Prior to closing, Buyer shall determine, at its sole discretion,
that there will be no ponding, wetlands, public water or sensitive
ground water', area on the Property required or defined by the City
of Elk River, or any other governmental authority, except as may
be replaced by an approved replacement plan.
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If any of the contin~encies set forth above are not met, Buyer may, at
its sole discretion, on or before the date of closing by notice to Sellers,
declare the contingencies have not been met and terminate this Agreement.
In the event that Buyer does not give said notice of termination by the date
lof closing Buyer shall be deemed to have waived satisfaction of any
~ontingencieS then remaining unsatisfied and the parties shall then proceed
to close this transaction according to the terms and conditions of this Agree-
ent. Upon such termination, Sellers shall return to Buyer all earnest money
paid hereunder and all interest ac'crued thereon and both parties shall be
released from any further rights or obligations regarding this Agreement or
the Property. All the contingencies set forth in this section are specifically
Istated for the sole purpose and exclusive benefit of the Buyer, and the Buyer
shall have the sole right to unilaterally waive any contingency by written
notice to Sellers.
.
7. Right of Entry. Buver and its duly authorized agents shall have
the right during the period from the date of this Agreement to closing, to
enter in and upon the Property in order to complete its investigation of the
Property. Buyer agrees to restore any resulting damage to the Property and
to indemnify, hold harmless and defend Sellers from any and all claims by
third persons of any nature whatsoever arising from Buyer's right of entry
hereunder, including all actions, suits, p~oceedings, demands, assessments,
costs, expenses and attorneys' fees.
8. Representations and Warranties by Sellers. Sellers represent and
warrant to Buyer as follows:
.
(a)
(b)
(c)
(d)
.
Title to Property. Sellers are the owner of and have good and
marketable title to all of the . Property, free and clear of any
liens, pledges, security interests and encumbrances, and any other
rights or claims of third parties, which will be released at
closing, and is authorized to convey the same to Buyer.
Pending Actions. There are no actions, suits, investigations,
or proceedin~s pending or threatened against Sellers or before
any court or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency, or
instrumentality, including, but not limited to condemnation,
environmental, zoning or, other proceedings, which may have a
material adverse impact on the Property.
Removal of Structures and other Materials. Unless otherwise
agreed in writing Sellers agree to remove any and all structures,
equipment, wells, tanks or other materials from the Property.
Compliance with Laws. Sellers have not received any notice of
violation of any law, regulation, ordinance or other requirement
relating to the Property which would have a material adverse affect
on the Buyer's intended development of the Property.
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(e)
Valid and BindinR ARreement. This Agreement constitutes the valid
and binding obligation of the Sellers in accordance with its terms.
The execution and delivery of this Agreement and the consummation
hereof does not and will not violate any provision of any judicial
or governmental decree, order or judgment regardinR the Sellers.
(f) Improvements. Sellers will not, without the prior written consent
of Buyer: (i) construct of enter into any agreement or commitment
to construct any improvement on the Property; or (ii) enter into
any lease, easement, covenant or other obligation affecting the
Property.
(K) Public Right to Access. There is a right of access to the Property
from a public right of way.
(h) Liens. As of the date of closing, all payments will have been
made. for all labor and/or material furnished to the Property, by
or on behalf of Sellers.
(i) Storage Tanks. Any underground storage tanks shall be removed
by the Sellers at their expense.
(j)
Environmental Laws. To the best knowledge of Sellers, no toxic
or hazardous substances or wastes, pollutants or contaminants
(including, without limi ta tion,. asbestos, and any hazardous
substance as defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA")), or have been
generated, treated, stored, released or disposed of, or otherwise
placed, deposited in or located on the Property, nor has any
activity been undertaken on the Property that would cause or
contribute to (i) the Property becoming. a treatment, storage, or
disposal facility within the meaning of, or otherwise bring the
Property within the ambit of, the Resource" Conservation and Recovery
Act of 1976 ("RCRA"), or any similar state law or local ordinance;
(ii) a release or threatened release of toxic or hazardous wastes
or substances, pollutants or contaminants, from the Property within
the meaniOJ~ of, or otherwise bring the Property wi thin the ambi t
of, CERCLA, or any similar state law or local ordinance; or (iii)
the discharge into the environment of any emissions that would
require a permit under the Federal Water Pollution Control Act,
or the Clean Air Act or any similar state law or local ordinance.
To the best knowledge of Sellers after due inquiry, there are no
substances or conditions in or on the Property that may support
a claim under RCRA, CERCLA or any other federal, state or local
environmental statutes, regulations, ordinances or other
environmental regulatory requirements.
(k) Development Process. Sellers shall cooperate with Buyer in the
development process.
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(1)
.
(m) Relocation of the Manufactured Home Park. Sellers represent that
they will within ten days from the date of this Agreement, properly
serve the statutorily mandated notice on all manufactured home
park residents, in form consistent with an in compliance with
Minnesota Statutes, Rules' and Regulations, or otherwise complete
relocation of each and every manufactured home park residents within
the statutorily mandated period in compliance with all applicable
statutes,rules and regulations.
Sellers will indemnify and hold Buyer, its successors and assigns,
harmless from and against any expenses or damages, including reasonable
attorneys' fees, that Buyer incurs as a result of the breach of any of the
above representations by Sellers. SpeCifically, Sellers shall. indemnify,
defend and hold Buyer harmless from claims made bv residents of the mobile
home park.
9. Representations and Warranties of Buyer. Buyer represents and
warrants as follows:
(a) Development Process. Buyer shall undertake to obtain governmental
approvals for the development of the Property, or to subdivide
the Property and prepare portions thereof for sale to third parties.
.
(b)
Authori ty . The individual signing this Agreement on behalf of
Buver hereby covenants and represents to Sellers that he is fully
authorized and empowered to sign this Agreement on behalf of Buyer
and that this Agreement will be fully binding on Buyer.
(c) Survival of Representations and Warranties. The representations
and warranties of Buyer shall be true and correct as of the date
of closing and shall survive the closing.
10. Title Examination. The Buyer or its agents have in its possession
the abstract of title to the lands and premises described in Exhibit A.
Further title insurance considerations shall be the responsibility and expense
of the Buyer.
Within fifteen (15) business days after recelV1ng the Title Commitment,
buyer will make written objections ("Objections") to the form and/or contents
of the title evidence. Buver's failure to make Objections within such time
period will constitute waiver of the Obj ections. Sellers will have sixty
(60) days after receipt of the Objections to cure the Objections, during which
period the Closing will be postponed as necessary. Sellers shall use their
best efforts to correct any Objections. To the extent any liens or
encumbrances for liquidated amounts can be satisfied by the payment of money,
Buyer shall have the right to apply a portion of the cash payable to Sellers
.
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at the Closing to satisfaction of such Objection and the amount so applied
shall reduce the amount of cash payable to Sellers at the Closing., If the
Objections are not cured within such sixty (60) day period, Buyer will have
the option to (i) terminate this Agreement and receive a refund of the earnest
money and the interest accrued and unpaid on the earnest money, if any, or
(ii) waive the Objections and proceed to close.
11. Closing. The closing of. the purchase and sale contemplated bv
this Agreement shall occur on or before April 1, 1997.
12. Closing Documents. At the ClosinR, Sellers shall execute and/or
deliver to Buyer the following (collectively the "Closing Documents"):
(a) Warranty Deed. A Warranty Deed in recordable form and reasonably
satisfactory to Buyer;
(b) Promissory Note. A Promissory Note executed by Buyer due and
payable to the order of Seller pursuant to the terms and conditions
set forth in this Agreement;
(c)
MortRage. A mortgage in recordable form,
favor .of Seller, reasonably including the
set forth in this Agreement;
executed by Buyer in
terms and conditions
(d)
Sellers' Affidavit. A standard form affidavit bv Sellers indicating
that on the date of Closing there are no outstanding unsatisfied
judRments, tax liens or bankruptcies against or involving Sellers
or the Property; that there has been no skill, labor or material
furnished to the Property (other than at the request of Buyer)
for which payment has not been made or for which mechanic's liens
could be filed; and that there are no .other unrecorded interests
in the Property;
(e) Storage Tanks. If required an affidavit with respect to storage
tanks pursuant to Minnesota Statutes Section 116.48;
(f) Well Disclosure. If there is a well located on the Property, a
well-disclosure statement in form and substance true to form for
recordinR; and
(R) Certification. A certification that the representations and/or
warranties made by the Sellers are the same as were in existence
on the date of this Purchase Agreement.
(h) Other Documents. All other documents reasonably determined by
either party and the title insurance company to be necessary or
desirable in connection herewith and the consummation of the
transactions contemplated herein.
13. Prorations. Sellers and Buyer agree to the following prorations
and allocation of costs regardinR this Agreement:
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(a) Title Insurance and ClosinR Fee. Sellers will pay all costs of
abstracting and evidence of title. The Buyer shall undertake and
pay all other expenses incidental to closing.
(b) Real Estate Taxes. Real estate taxes due and payable in the year
of Closing shall be prorated to the date of Closing. Sellers shall
pay all delinquent taxes and penalties and interest thereon on
or before Closing. Buye~ agrees to assume all real estate taxes
following the year of Closing.
(c) Special Assessments.
i. Sellers shall pay all special assessments or similar
governmental impositions, pending, levied or deferred against
the Property to be purchased as of the date of closing.
ii. Buyer shall be responsible for all special assessments or
similar governmental impositions levied against the Property
from and after the date of closing and special assessments
or similar governmental impositions caused or created by
Buyer's development of the Property.
(d) RecordinR Costs. Sellers will pay the cost of recording all
documents necessary to place record title in the condition warranted
and required in this Agreement, including state deed tax. Buver
will pay the cost of recording all other documents.
14. Condemnation. If, prior to the date of Closing, eminent domain
proceedings are commenced against all or any part of the Property, Sellers
shall immediately give notice to Buyer of such fact and Buyer may, at its
sole option (to be exercised within thirty (30) days after Sellers' notice)
(1) terminate this Agreement, in which event neither party will have any
further obligations under this Agreement and the earnest money, together with
any accrued interest, shall be refunded to Buyer, or (ii) close the transaction
upon the terms and conditions contained herein and Sellers shall assign to
Buyer all of its right, title and interest in and to any award made or to
be made in the condemnation proceedings.
15. Assignment. Neither party may assign their rights under this
Agreement without the prior written consent of the other.
16. Survival. All of the terms of this Agreement will survive and
be enforceable after the Closing, except those waived by Buyer expressly.
17. Notices. Any notice required or permitted to be given by any party
upon the other shall be deemed given upon personal delivery to the other party,
or upon deposit in United States mail, registered or certified, return receipt
requested, postage prepaid, or upon deposit, fees paid, with a nationally
recognized, reputable overnight courier, properly addressed as follows:
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e
e.
.
If to Sellers:
Earl and Lorraine Hohlen
39 Main Street
Elk River, MN 55330
With a copy to:
John Mac Gibbon, Esq.
261 East Broadway
P.O. Box 999
Monticello, MN 5532
If to Buyer:
Associated Developers of the Twin Cities, Inc.
6801 West 150th Street
Apple Valley, MN 55124
With a copy to:
Anthony J. Gleekel, Esq.
Siegel, Brill, Greupner & Duffy, P.A.
100 Washin~ton Square, Suite 1300
Minneapolis, MN 55401
Any party may chan~e its address for the service of notice by g~v~ng written
notice of such change to the other party in any manner above specified.
18. Captions. The paragraph headings or captions appearing in this
Agreement are for convenience only, are not a part of this Agreement and are
not to be considered in interpreting this Agreement.
19. Entire Agreement; Modification. This written Agreement constitutes
the complete agreement between the parties and supersedes any prior oral or
written agreements between the parties regarding the Property. There are
no verbal agreements that change this Agreement and no waiver of any of its
terms will be effective unless in a writing executed by the parties.
20. Binding Effect. This Agreement binds and benefits the parties
and their heirs, repre~entatives, successors and assigns.
21. Governing Law. This Agreement has been entered into in the State
of Minnesota and shall be governed by and construed in accordance with the
laws of the State of Minnesota.
22. Remedies. If Buyer defaults under this Agreement, Sellers shall
have the right to terminate this Agreement by giving thirty (30) days written
notice to Buyer. If Buyer fails to cure such.default within thirty (30) days
of the date of such notice, this Agreement will terminate, and upon such
termination, Sellers shall retain the earnest money as liquidated damages,
time being of the essence of this Agreement. The termination of this Agreement
and retention of the earnest money will be the sole remedy available to Sellers
for such default by Buyer, and Buyer will not be liable for damages or specific
performance. If Sellers default under this Agreement, buyer may terminate
this Agreement by giving fifteen (15) days written notice to Sellers. If
Sellers fail to cure such defriult within said fifteen (15) days of the date
-12-
.
.
.
r ........
of such notice, this Agreement shall terminate and all earnest money and any
interest accrued thereon shall be referred to Buyer. Notwithstanding the
foregoin~, Buyer may also elect to seek and recover from Sellers specific
performance of this Agreement.
23. Commissions. Sellers and Buver each agrees to indemnify and hold
the other harmless against all claims, damages, costs or expenses (including
costs incurred in defending any clailp) for any brokerage fees or commissions
excluding legal fees resulting from its or their actions or agreements
regarding the execution or performance of this Agreement.
24. Access. The Sellers and Buyer further agree that the Sellers shall
be provided access across the lands and premises described in Exhibit A at
a particular location and route to be determined by the Buyer to the North
line of the South Half of the Northwest Quarter of Section 2, Township 32,
Range 26. Said land lying southerly of that described in Exhibit A, and
adjacent thereto. In the. event that said North line becomes accessible across
the land described in Exhibit A or otherwise from County State Aid Highway
No. 12 as presently located and established. Such access shall be considered
as satisfaction of the access requirements of this paragraph.
IN WITNESS WHEREOF t Sellers and Buyer have executed this Agreement as
of the day and year first written above.
SELLERS :
BUYER :
i!r&~
ASSOCIATED DEVELOPERS OF
THE TWIN CmES, INC.
,~~~~~
By:
Its:
q&~
-13-
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.
.
.
JOHN E. MAC GIBBON
ATTORNEY AT LAW
321 LOWELL'
ELK RIVER, MINNESOTA 55330
Z- 'lC r\- ~ i): \ ~
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TELEPHONE 441-1 383 AREA CODE 612
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November 3, 1994
.
Anthony J. Gleekel
Siegel~ Brill, Greupner & Duffy, P.A.
1300 Washington Square/
100 Washington Avenue South
Minneapolis, MN 55401
Re: Associated Developers of the Twin Cities, Inc. -
Purchase of Elk River Property from Earl and Lorraine Hohlen
Dear Mr. Gleekel:
My clients, Earl Hohlen and Lorraine Hohlen, 'have now had an opportunity to
review at length the terms and provi~i~~ of the proposed purchase agreement
submitted under the date of(feptember' 30~ 19~ in behplf of the Associated
Developers of the Twin Cities, Inc. Addressing the most serious problem first,
the Hohlens disagree with the ~roposed purchase pric~Initially they had
hoped to realize approximately ,Five Million Dollars from the safe of the tract
which consists of approximately~ ~cre~of land under consider?tion by the
purchasers. The method of determin~ng the price in the~~inal option
agreement, specifically=w1.25 per square foot with the Hohlens op~ort~nity
to participate in .one-third of any excess' baseTOn final sales by'"the"'-'~'''
de~elopers, but not less than .36 per square foot, approximated the Hohlens
(.e;tp'e~ct~svas to price. lrdlizing the,f,c;>rmu~a ,e.~~p,9,,~~d in the purchase
agreement, the Hohlen' s \ expectan'cy) woula be reduced to around Two Milli~
Dollars or less~ for the sale of -file ~ tract. The Hohlens ~ believe
in their original assessment of the tract's value and at this point are
unwilling~o make any substantial reduction in..that expectancy.
- - .
Hohlens are also concerned that the e~uation to determine price has factored
into it the~em of wetland. White it is true there 'is a limitation on
the amount of wetland the purchaser would be-required to accept, there is
no~ar~b.~~limitation _protectIng the Hohlens. ~rguablr, the wetland area
-or t e su j ect land is no~ present),y known and coul~ sfgnific.?;tttly ~~~J:,g~~~e
th~ total area of the land w~th a c.?l!e~20n4ing E~~uf~t~n in the purchase
pr~ce.
Hohlens are not in agreement with the City and other MuniCipalities or
. Governmental~dies that have already.aesignat~certain wetland ~r ~e
. threatening to do so. The redUcti~n of. lana-value because of wetland, however,
WIIIalso'~mpad:-upoii the revenue~-produced byad valorem taxation. The Hohlens
~"",-~.,-""'",..,....,,--,.~ ", - '.- -:-- -'-""-'_""""'., ...."..,..,.. ,", '. ".'.,',', ;. "", -,. .. .. ','''1
need to know with reasonable ceriai'rity'the amount of wetland contained in
~""~"""''''-'-'-'--''''-~''''''' ~.. .. ," .... ,,',_. .".",...",'.."'" ~"";"''''''!~".":.,.,,,~.J.,...,,..,,.,,.,'
tne tract. --......q.,-".. - .,
Hohlens also object to the provision that would require them to clo~e the
present 'mobile home park, accordingto statutory procedures, ilUJ_~ certain
,v
contingencies would stig give to the purchaser ~e r~ght to resc=i:!!~!. the
. p~rcha~e ag:e, ement,:, T,_ h"i~-S, <l,l11A..le.a.:,y.~fu_ HQh, t~1l~...iI},.i':,_,E~"!~~I_R!:~ar.t9~.~..,..
s~tua~;-o~h_j;.h~_:j..r~.YJ.:~~.Q.L~.x~.!l~~!!:W~ and no assurance that
~ppropr~a~e Governmental agencies would authorize ~opening or-the then
closed park. -----
-.-............--
An "addition.~~ ~j~<::onsideration' is the"burdeE the purchase a8, reement ~mpos.e,~f;-
on the HohIens to iocate the park and ride site to the West side of United
States Highway No. 169. Hohlens have no control over thi~ite. It is the
p::~perty ?f the Minnesota Department onransportation:- -. ,,~ " ' -
If the concerns of the Hohlens could be satisfied by moditi.c.~n in the
-pr;posed purchase agreement, they woYi4_~1llJJ:coinsider-p~oc~edi~with the
sale of the property. However, they are under' no need at this time to ,proceed
with the sale under conditions they believe, not to be in their best [nte?'est':
~ - ", ..>.llt.........t:.J;,......:;,.'"''''.'''..,\;.',.(.''"'..,,,,,.;--.;.~2!~ih:;."~i">""'('>Xt~';J;.""~~;.1!'i''':~~''''''''''''''''
The Hohlens .~q~~ that the Associated Developers of the Twin Cities.
Inc. has in~.t;st;~~LcQ~ll~~!e time ~ money in, testing ~ other si te
preparations ~ evaluations. In the.~~e~ that the part~es are ~nable to
reach an agreement in this matter, theH~lens ~ould neverthp]~~~~~e.~.~lti~
to as~t the Associated Developers of the Twin Cities, Inc. in recou in '
part or al~ of their investment expenses from4~~ale to~~me ot er ~l~~l~
buyer, insofar" ~~ it may be consis.t.ent with ~c..~.. f~t.Y.t.e ~$X~~,~.n.~'
I would want you to know that as the Hohlen's lawyer, I remain wi~l~n$ to
meet at any time with you or any of the representatives or the purchaser to
. reso~ the issues that are ~barriers to the culmination of an agreement
between our respective c1ients. '
.
trul~ ~
Gibbon
JEM/bv .
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ASSOCIATED
D E U E lOP E R S
INCORPORRTEO
'\\:\,~ -S tw.L. '\ \ '1- 'f ~ ~~
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Thursday, June 9,
1994
M/M Earl Hohlen
39 Main Street Northwest
Elk River, MN 55330
RE: Elk River Crossing
Dear Mr. & Mrs. Hohlen:
.
Enclosed please find the proposed agreement for the purchase
of your property in Elk River. I apologize for all of the
frustration involved in the development of this project. However,
I hope this proposal will help to eliminate the uncertainties,
clearly address your concerns, and provide you with the highest
value possible for your property - and still leave you with the
rest of your property on the west side of Highway 169.
I appreciate your frustration over the reduction in total price.
However, I sincerely believe that we are utilizing the property
to it's highest and best use, and thereby allowing you the highest
value for your property. I look forward to working with you in
the future.
~~~~~~:;::;.v~===~
~~'~-_..__.-
~ E~C M. Pedersen
EMP:dc
enclosure
cc: John MacGibbon(w/encl)
.
2500 West County Road 42 BurnsviIle, MN 55337 (612)894-6000 FAX (612)895-1873
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060794
PURCHASE AGREEMENT
')s T1. THIS PURCHASE AGREEMENT (the" Agreement") is made and entered into as of this
- day of June, 1994, by and between EARL H. HOHLEN and LORRAINE HOHLEN,
husband and wife, ("Seller") and ASSOCIATED DEVELOPERS OF THE TWIN CITIES,
INC., a Minnesota corporation, with its principal address being 6801 West 150th Street, Apple
Valley, Minnesota 55124 ("Purchaser").
RECITALS:
A. Seller is the fee owner of the parcel of land consisting of approximately 68 acres
situated in the City of Elk River, Sherburne County, Minnesota, legally described on the
attached Exhibit A (the "Land").
B. Seller wishes to convey, and Purchaser wishes to purchase the Land, together with
all rights, privileges, easements, and appurtenances belonging thereto (hereinafter referred to as
the "Property").
AGREEMENT:
In consideration of the mutual covenants and agreements herein contained and other
valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as
follows:
1.0 Premises To Be Purchased. Subject to the terms and conditions of this
Agreement, Seller shall convey the Property to Purchaser.
2.0 Purchase Price. The purchase price ("Purchase Price") of the Property shall be
the sum of Three Million and no/lOO Dollars ($3,000,000.00) payable by Purchaser as follows:
2.1 Twenty-Five Thousand and no/lOO Dollars ($25,000.00) as earnest money (the
"Earnest Money"). The Earnest Money shall be paid to Seller upon execution of
both parties of this Agreement. Said Earnest Money shall be non-refundable
except as otherwise specifically provided herein.
2.2 Two Million Nine Hundred Seventy-Five Thousand and no/100 Dollars
($2,975,000.00) in cash orby certified funds or the equivalent on the Date of
Closing (as hereafter defined).
1
.
.
.
.
16.7 Assignability. This Agreement and the rights set out herein may be assigned to
an entity to be formed by Purchaser for purposes of developing the Property.
16.8 Entire Agreement. This Agreement sets forth the entire understanding of the
parties and may be amended, modified or terminated only by an instrument signed by the
parties.
16.9 Counterparts. For the convenience of the parties, any number of counterparts
hereof may be executed and each such executed counterpart shall be deemed an original, but all
such counterparts together shall constitute one in the same Agreement.
The parties have executed this Agreement as of the day and year set forth above.
SELLER:
Earl H. Hohlen
Lorraine Hohlen .
PURCHASER:
ASSOCIATED DEVELOPERS OF THE
TWIN CmES, INC.
<,~ ~~
Byus ~ - ~ ()./
296375
9
. 1
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OPTION AGREEMENT
\~ ~ ~ ,', I,~.
TIllS OPTION AGREEMENT is made this +t:)~i-l994-; by and between
EARL H. HOHLEN and LORRAINE HOHLEN, husband and wife (referred to herein as the
"Seller"), and Associated Developers of the Twin Cities, Inc., a corporation under the laws of
Minnesota, with its principal address being 6801 West 150th Street, Apple Valley, Minnesota
55124 (" Purchaser").
~t-'~'-~~- r;=-t~. 'qq
~~\-,,-.L \u c~~ -{ . .' ( ':I I"'
~. \" ~; _ \.. ,Jo.
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01/07/94
1. Grant of Option. In consideration of the sum of $5,000 received from Purchaser,
the Seller grants to the Purchaser the exclusive right and option to purchase, upon the terms and
conditions set forth below, the property situated in the City of Elk River, Sherburne County,
Minnesota, consisting of approximately sixty-eight (68) acres, as generally depicted in the
attached Exhibit A and as legally described on Exhibit A-I (the "Property").
2. Exercise of Option. The Purchaser shall exercise this option, in whole or in part,
as provided for herein, no later than 12:00 noon, Central Standard Time, September 1, 1994,
by written notice of exercise to the Seller (the "Option Exercise Notice"). Unless extended as
hereinafter provided, after September 1, 1994, this option, to the extent not previouslY
exercised, shall lapse and be of nor further force or effect and Seller shall retain all monies pald
by Purchaser to Seller pursuant to this option.
. 3. Extension of Option Period. Purchaser shall have the right upon payment to
Seller of the sum of $5,000 in cash (the "Extension Payment"), to extend the term of this option
from September 1, 1994, through and including 12:00 noon, Central Standard Time, September
1, 1995, provided Extension Payment is delivered to Seller, together with a notice of Purchaser's
election to extend the option term, no later than 12:00 noon, Central Standard Time, September
1, 1994. As additional consideration for the extension of the term of this Option, the Purchaser
agrees to pay the second half of the real estate taxes due and payable during 1994 and the first
half of the real estate taxes due and payable during 1995 on the Property.
Unless previously exercised or extended in the manner set forth, this option shall expire
finally and absolutely at 12:00 noon, Central Standard Time, on September 1, 1994 (the
"Expiration Date"), or if extended, at 12:00 noon, Central Standard Time, on September 1,
1995, and upon such expiration, neither party shall have any further rights, obligations, or
liabilities to the other hereunder; provided, however, that if on the Expiration Date any record
of any interest, right or claim of Purchaser shall appear in the land title records of Sherburne
County, Minnesota, or any other encumbrance, matter or document has been caused or allowed
to exist by Purchaser, to which an objection to title may be made by a subsequent purchaser or
mortgagee, then, at Seller's request, Purchaser shall provide Seller with (a) quit claim deeds in
favor of each of the Sellers, in recordable form executed by Purchaser conveying an undivided
one-half (1/2) interest in the Property to each Seller and (b) any other document required to
eliminate any other such defect, claim, lien or interest.
.
- 1 -
.
.
.
have been given one day following the date it is mailed as herein provided. Personally delivered
notice shall be deemed given on the date the same is delivered.
21. Non-Waiver. No delay or failure by either party to exercise any right under this
Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any
other right, unless otherwise expressly provided herein.
22. Governing Law. This Agreement shall be construed in accordance and governed
by the laws of the State of Minnesota.
23. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
SELLER:
~/#~.
~//;'~~?7.. ,X-z-
Earl H. Hohlen
~~,
d;'~;u,<e-ft/. '9tj/Jy---
Lorraine HoWen
- 11 -
.
.
.
.
PURCI;IASER:
ASSOCIATED DEVELOPERS OF THE
TWIN C~, INC.
i
Attest:
STATE OF MINNESOTA)
)SS
COUNTY OF )
The foregoing instrument was acknowledged before me thisllthlay of January, 1994 by
Earl H. Hohlen and Lorraine Hohlen, husband and wife.
(Notarial Seal)
'~fJj/J/lo.... uJU~ lA.
L Notary Public
STATE OF MINNESOTA)
)SS
COUNTY OF )
The foregoing instrument was acknowledged before me thiJW)day of January, 1994 by
the
of Associated Developers of the Twin Cities, Inc., a Minnesota corporation, on behalf of the
corporation.
(Notarial Seal)
J2(~l\tL U 1 JS([h
Notary Public
238865
,4"-#7.1 ,. I' "4#" ,. ~""..., , .I
~.~:-~ REGINA WILSON
,:k\f;~~ NOTARY PUBLIC. MINNESOTA
iYti'f!J RICE COUNTY
"'-'-"f~, My Commission Expires Jan. 30. 1997
- 12 -
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~ L~"'\~ (.s c...~ \" '\ . p.:,S. L ",...
-nh~ "'3"~. -1,"~ bP"t~~;N ~ 9- ~!.)
01/07/94
.
OPTION AGREEMENT
TIllS OPTION AGREEMENT is made this JQ. day of January, 1994, by and between
EARL H. HOHLEN and LORRAINE HOHLEN, husband and wife (referred to herein as the
"Seller"), and Associated Developers of the Twin Cities, Inc., a corporation under the laws of
Minnesota, with its principal address being 6801 West 150th Street, Apple Valley, Minnesota
55124 ("Purchaser").
1. Grant of Option. In consideration of the sum of $5,000 received from Purchaser,
the Seller grants to the Purchaser the exclusive right and option to purchase, upon the terms and
conditions set forth below, the property situated in the City of Elk River, Sherburne County,
Minnesota, consisting of approximately sixty-eight (68) acres, as generally depicted in the
attached Exhibit A and as legally described on Exhibit A-I (the "Property").
2. Exercise of Option. The Purchaser shall exercise this option, in whole or in part,
as provided for herein, no later than 12:00 noon, Central Standard Time, September 1, 1994,
by written notice of exercise to the Seller (the "Option Exercise Notice"). Unless extended as
hereinafter provided, after September 1, 1994, this option, to the extent not previously
exercised, shall lapse and be of nor further force or effect and Seller shall retain all monies paid
by Purchaser to Seller pursuant to this option.
.
3. Extension of Option Period. Purchaser shall have the right upon payment to
8eller of the sum of $5,000 in cash (the "Extension Payment"), to extend the term of this option
from September 1, 1994, through and including 12:00 noon, Central Standard Time, September
1, 1995, provided Extension Payment is delivered to Seller, together with a notice of Purchaser's
election to extend the option term, no later than 12:00 noon, Central Standard Time, September
1, 1994. As additional consideration for the extension of the term of this Option, the Purchaser
agrees to pay the second half of the real estate taxes due and payable during 1994 and the first
half of the real estate taxes due and payable during 1995 on the Property.
Unless previously exercised or extended in the manner set forth, this option shall expire
fmally and absolutely at 12:00 noon, Central Standard Time, on September 1, 1994 (the
"Expiration Date"), or if extended, at 12:00 noon, Central Standard Time, on September 1,
1995, and upon such expiration, neither party shall have any further rights, obligations, or
liabilities to the other hereunder; provided, however, that if on the Expiration Date any record
of any interest, right or claim of Purchaser shall appear in the land title records of Sherburne
County, Minnesota, or any other encumbrance, matter or document has been caused or allowed
to exist by Purchaser, to which an objection to title may be made by a subsequent purchaser or
mortgagee, then, at Seller's request, Purchaser shall provide Seller with (a) quit claim deeds in
favor of each of the Sellers, in recordable form executed by Purchaser conveying an undivided
one-half (1/2) interest in the Property to each Seller and (b) any other document required to
eliminate any other such defect, claim, lien or interest.
.
- 1 -
.
.
.
..
have iren given one day following the date it is mailed as herein provided. Personally delivered
noticeshall be deemed given on the date the same is delivered.
21. Non-Waiver. No delay or failure by either party to exercise any right under this
Agreenent, and no partial or single exercise of that right, shall constitute a waiver of that or any
other right, unless otherwise expressly provided herein.
22. Governing Law. This Agreement shall be construed in accordance and governed
by the laws of the State of Minnesota.
23. Counterparts. This Agreement may be executed in two or more counterparts,
each I,f which shall be deemed an original but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first llbove written.
SELLER:
//~/~
At~~, ~
.~
\/;:,', ~'.' / / <' '>:/::5~-///~,:~, Z
Earl H. Hohlen
A~t: ~~...
/
/
"--;1 (
. ,5/ ti,lkC'/L-'---
~ . )1/1
, ~L-/(. t( .(" ~-,..:.:.- 1/
Lorraine Hohlen
- 11 -
.
.
.
"
PURCHASER:
ASSOCIATED DEVELOPERS OF THE
TWIN CmES~ INC.
-l,
Attest:
('. ',/;/// //,
/"' ~ , " ' b / P' .
1Id~ft:;!{( O~~
(, Its ",/ -. --
--,' t
STATE OF MINNESOTA)
)SS
COUNTY OF )
The foregoing instrument was acknowledged before me this(i/lr1iay of January, 1994 by
Earl H. Hohlen and Lorraine Hohlen, husband and wifer
(Notarial Seal)
/1
~{t 0)1 (S,O V\.
Notary Public
.
J"'6 ~1166~IJII I "114 I' .
. , ,,~ I
(M.~, REGINA WILSON
''c~, ~-8,,~1, ~ NOTARY PUBLIC. MINNESOTA
r,:!:V RICE COUNTY
, My r.nmmi"~,ofl [xolfr" J~n :m 1 '1n7 ,
STATE OF MINNESOTA)
)SS
COUNTY OF )
The foregoing instrument was acknowledged before me thisHl'\day of January, 1994 by
the
of Associated Developers of the Twin Cities, Inc., a Minnesota corporation, on behalf of the
corporation.
(Notarial Seal)
< ~ C~LL W Lts'O n
\ (" Notary Public
23886S
r" ,~, #".u~u REGI~AWII:-SONu 'u I
~ ,~~~ NOTARY~~~~~U~~NESOTA
. '.:",' v My Commj'",n" h~I'p', I~n ~O, 1<)Q7 ':
- 12 -
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I(!) 002
NO.645 P008v~10
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PETITION, WAIVER AND AGREEM:ENI FOR ~ST ALLA TION OF
TRUNK WATER AND SANITMY SE'WER. F ACn..ITIES
AND ASSESSMENT OF lYE COSTS ntEREFOR.
~ltutLl ~KILL rHX NU, bj~ jj~ b~~l
'O'44174Z~ CITY/ELK Rlvtffi
DRB MINNEAPOLIS 7 4417425
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TO: City Council of the City of Elk River:
Earl II. Bohlen, Lo!Tlline Mae Hohlen, William N. Swanberg. Kathleen M. Swanberg and
The Elk Terrace Mobile Home Court and Sales, Inc.t Ii Minnesota cotporatio~ (Owners), and
Associated Developer!: of the T\ltIin Cities, 1M., (D~vdoper)r petition the City of Elk River as
follows:
1. To instalJ ~ n~ trunk faclliti~ and latmlI lines, u determined necessary by
the City ofBlk :Rivcr~ to &'tend City walt!:[ and "tary sewer service (the Trunk
Facilities) to the ~(opcIty id~ti.fi~ 0 Exhibit A Cl'eto (the Property).
~,
To aMen the Property its proportiomtc: share of the cost of installing the Trunk
Facilities, a.s determined by the City in its ~le dl~etiDn.
.
3.
To apportion the as~sment$ for the Trunk Facilities on an acreage basis to the
lots of record within the Property.
4. to levy the lI.Ssessments for the Tronk Facilities ~ch that tM ~5sm~nt9 shall be
plrid over &\1eh pe:riod of time and at such rate of interest as the City sMU
de1crmine, or IS provided i.rl. a ~eloper! Agreement for d~elDpment of the
Property.
Owners represent and wa.m..nt that they are the sol~ fee owners. ofthc Property.
De-.;eloper repr~nlll and WarTfUlls that it intends to acquire f~ title to the Property for t.he
purposes of development of thE Prope~.
Owners and Dcvdot>ef agree. in consideration cftho City desi~ns and insalling the
Trunk Facilities:
1. To providt the City with a. propostld plan tor dr:velopment of the Property from
which the City can d~ign the Trunk FAdlirles.
.
2.
To grant to the City. prior to th~ City orderlni innall~tion of the Trunk Facilities
to p~ such ea.~roents or other int~li in. the Property as tho City shuJl
.
.
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~1t.litLl l:H(JLL
'0'4417<1 ~;)
tHX NU, Ol~ jj~ o8MJ
CITY/ELK RIYER
~OOJ
NO. G~? P~39.'01O
~ , .
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/22/9jl 16: l6 DRB l'ltNHEAPOUS ~ 4417425
determine necessary for the purpose of instilling the Trunk Faciliti~s, and such
~dit.ional easements or property interests as the City shall determine necessary to
extend City wau:.r and ~ S!Wef service to adjacctlt and surrounding
propertiea. Owncr~ shalt also grant to ~he City suoh ~ements IU the City shall
r~uirc for the Trunk Fadlitic:i eyer the propcny id~tified in~xhibit ~to this
P ;tition and Agteem~t.
3.
To provide the City with cash, Ii letter of credit, or some other seo.Jnty acc~ptahlt5
to t~ Ciry, in its ool~ discretion, 10 protect tho City in the event that development
ofthe Property does Dot proooed. The amount oflhe security shall be as follows:
a. S It) JJt:J4 to be provided prior to the preparatIon of pla.ns and
specification for tho Trunk Faciliti&; ~d
;:~~
~~y!:l' ",1
1 L:'::y -::r- -_-....
---
The smmty provided slWl be forfeited, in an BmOunt equal to the City's actual
costs for the preparation ofPlanB and/or construction cfthe Trunk Ftlcilities, in the
event that !. Developer's Agreement for development of the Property is not
~ecuted prior to ~mpletion of the Trunk Facilities.
4.
To P&}' the amoUIIt5 a5!.Csscd to ~ Pro~ for the Trunk Facilities as proy;d~d in
this Petition aM Agreement.
Own~rs and Dcvclo~ specifically waive MY objection to the City'$ de~ign and
install,~tion of the Trunk Facilities. inchlding any objection to the tlnil.! design ofthe Trunk
Facilities, any obj~on to w final location of the TrutJ<. FaciJlti~, any objecrion to the procedure
pursuant to which the CitY ord~ the Trunk Facilities inst1.l1ed, I:l.I1d any objection to tbe City's
{aiJurt to striCtly follow the notice and oth~ requircmer:tU efM.inne$Ota Statut05 Chapter 429
'With r~spect to ordering the Trunk Facilities i.nst.4lled.
Owners and Deve1opc:r expressly waive objeotion to any in"egularity With regard. to tbe
assessment of the Property for the Trurtk Facilities, expressly wlUve my claim that the amO\mt
assessed is excessive, and ex:pre~ly waive all rights of appeal, inclu.ding any rights under
.
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12/9'7 16: 17
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w" ..b CITY/J::LK lU Y!ili
D~ HINl'EAPD\..15 .; 4417425
r. U4
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NO.645 P01a/e10
Ch.aplt~r 429 Minncr;ota Statutes from the assessment by the City for the cost, ofinstclling the
Trunk Facilitit5.
,..;J
Dated this 2 - day of 1-e-EIW-M7 . 1998.
~:I..o-::t"~.1
~4W41f~-
Earl H. ohlen
=/n4L~
tn.iAe Ma.c Bohlen
William N. Swanberg
Ka.thlet!n M. Swanberg
TIm ELK TERRACE MOBILE HONlE
COURT AND SALES, INC.
By: <f(7...(Jl.$-R~:,,- ·
Its; 1J.1.I.I~- .;9
ASSOCIATED DEVELOPERS OF ruE
TWIN CITIES, INC.
By:
Its;
3
J~P~'C. o.".""...~
arcel number/Tax year: 75-002-2200
~er (s) : 8000
~HLEN, EARL H & LORRAINE
39 MAIN ST
~LK RIVER MN 55330-1527
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Display Parcel Descriptlon 12/17/9812i29:~4
axpayer:
:OHLEN, EARL
~9 MAIN ST
~LK RIVER MN
8000 FALCO: 1 F.O.
H & LORRAINE
1999 Reference parcel#:
Parcel type: RE Hold tax stmt:
Com district: 1 Misc1/2:
Escrow agent:
Mortgage hld:
UTA: Twp/City School FIRE **** U/R MISC
075 0728 00 00 00 00
TIF district:
Lake#/name
Property adr:
55330-1527
,lternate taxpayer:
Emergency#
Twp/City Plt:
Sec/twp/rge :
plat:
Description:
NW 1-4 OF NW 1-4
ELK RIVER CITY
2 32.0 26 Acres:
34.54
Lot/Block
EX PT TO UPA
Press Enter to continue or enter new parcel/tax year. 75-002-2200 1999
F1=Full desc F2=Trans hist F3=Exit F6=Prcl hist F7=Backward F9=Escrow hist
F12=Cancel F17=Display notes F18=97 Rebate
.
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SPPRCL1
Display Parcel Description
12/17/98 12:30:02
55330-1527
1999 Reference parcel#:
Parcel type: RE Hold tax stmt:
Com district: 1 Misc1/2:
Escrow agent:
Mortgage hld:
UTA: Twp/City School FIRE **** U/R MISC
075 0728 00 00 00 00
TIF district:
Lake#/name
Property adr: 39 MAIN ST
ELK RIVER
,rcel number/Tax year: 75-134-4410
..e.. :1:".( ~ 1..;."._~..M..~..?2;L._____..__
TERR MOB HOME CRT ')
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axpayer:
)HLEN, EARL
9 MAIN ST
LK RIVER MN
8000 FALCO: 5 OTHER
H & LORRAINE
lternate taxpayer:
Emergency#
Twp/City plt:
Sec/twp/rge :
Plat:
Description:
SE 1-4 OF SE 1-4
55330-0000
ELK RIVER CITY
34 33.0 26 Acres:
12.23
Lot/Block . :
LYING E OF HWY 169.
)ress Enter to continue or enter new parcel/tax year. 75-134-4410 1999
71=Full desc F2=Trans hist F3=Exit F6=prcl hist F7=Backward F9=Escrow hist
F12=Cancel F17=Display notes F18=97 Rebate
.
.
'SPPRCL1
Display Parcel Description
12/17/98 12:30:16
OI.xpayer:
)HLEN, EARL
) MAIN ST
uK RIVER MN
8000 FALCO: 1 F.O.
H & LORRAINE
1999 Reference parcel#:
Parcel type: RE Hold tax stmt:
Com district: 1 Misc1/2:
Escrow agent:
Mortgage hld:
UTA: Twp/City School FIRE **** U/R MISC
075 0728 00 00 00 00
TIF district:
Lake#/name
Property adr:
lrcel number/Tax year: 75-135-3300
.er (s) : 8000
LEN, EARL H & LORRAINE
9 MAIN ST
LK RIVER MN 55330-1527
55330-1527
,lternate taxpayer:
Emergency#
Twp/City Plt:
Sec/twp/rge :
Plat:
Description:
W 1-2 OF SW 1-4
PTS SOLD
ELK RIVER CITY
35 33.0 26 Acres:
15.02
Lot/Block
W OF TWP RD EX
Press Enter to continue or enter new parcel/tax year. 75-135-3300 1999
~l=Full desc F2=Trans hist F3=Exit F6=Prcl hist F7=Backward F9=Escrow hist
F12=Cancel F17=Display notes F18=97 Rebate
.
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DSPPRCL1
Display Parcel Description
12/17/98 12:30:26
arcel number/Tax year: 75-135-3305
wner (s) : 8000
~LEN, EARL H & LORRAINE
. MAIN ST
~LK RIVER MN 55330-1527
'axpayer:
[OHLEN I EARL
9 MAIN ST
LK RIVER MN
8000 FALCO: 1 F.O.
H & LORRAINE
1999 Reference parcel#:
Parcel type: RE Hold tax stmt:
Com district: 1 Misc1/2:
Escrow agent:
Mortgage hId:
UTA: Twp/City School FIRE **** U/R MISC
075 0728 00 00 00 00
TIF district:
Lake#/name
Property adr:
55330-1527
,lternate taxpayer:
Emergency#
Twp/City PIt: ELK RIVER CITY
Sec/twp/rge : 35 33.0 26 Acres:
Plat:
Description: Lot/Block
W 200FT OF SW 1-4 S OF RD
.61
~ress Enter to continue or enter new parcel/tax year. 75-135-3305 1999
c1=Full desc F2=Trans hist F3=Exit F6=Prcl hist F7=Backward F9=Escrow hist
F12=Cancel F17=Display notes F18=97 Rebate
.
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September 10, 1998
Matt Fischer
AVR Inc.
6801 - W. 150th St.
Apple Valley, Mn 55124
Mr. Fischer;
When I talked to you this JANUARY, you PROMISED you were going
to BUY OUT Curt Julius THEN and that Curt would FOR SURE get
the APPRAISED value of $38,000.00 for his mobile home:
It's NOW EIGHT months LATER and it has NOT HAP PEN ED:
I ALSO requested and you AGREED to send me duplicates THEN of
ALL the purchase and/or option AGREEMENTS (with signatures) you
have with my parents SINCE 1993:
It's EIGHT months LATER and this is ANOTHER PROMISE, which has
NOT HAP PEN ED:
Especially, IF these agreements MIGHT include the REAL PROPERTY
that my husband and I have HALF OWNERSHIP OF with my parents,
SINCE THAT ERA, on the frontage of the EAST side of #169:
IF this be the case, please try to understand how important it
is for me to see these purchase and/or option AGREEMENTS, so I
can READ THEM FOR MYSELF, because I do NOT KNOW WHAT'S ALL BEEN
GOING ON:
I'M BEWILDERED as to HOW I CAN POSSIBLY BE INVOLVED with ANY of
the trunk line of IMPROVEMENTS for YOUR PROJECT, IF I was NOT
INFORMED OF OR ASKED TO SIGN ANY PURCHASE AND/OR OPTION AGREE-
MENTS WITH YOU EVER:?:?:
I'd very much appreciate the time and effort you URGENTLY put
towards these PARTICULAR requests I made to you in JANUARY and
at this present time: Thank you:
But, of course, I must give you the BENEFIT OF THE DOUBT, IF
PERHAPS you have ABANDONED your DEVELOPMENT ALTOGETHER:
That's' WHY C-O-M-M-U-N-I-C-A-T-I-O-N is s-o-o-o VERY VERY
ESSENTIAL::
Sp please WRITE to me IMMEDIATELY, but do NOT try to phone be-
cause we are very hard to get ahold of, as I said before.
Thank you: - - KATHY (HOHLEN) SWANBERG - P.O. BOX 1)0 - BECKER
55308
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September 10, 1998
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.
Matt Fischer
AVR Inc.
6801 - W. 150th
Apple Valley, Mn
Mr. Fischer;
When I talked to you ~
to BUY OUT Curt Julius
the APPRAISED value of
It's NOW EIGHT months L.
I ALSO requested and you
ALL the purchase and/or t
have with my parents SINC
.
It's EIGHT months LATER an
NOT HAP PEN E D
which has
Especially, IF these agreements MIGHT include the REAL PROPERTY
that my husband and I have HALF OWNERSHIP OF with my parents,
SINCE THAT ERA, on the frontage of the EAST side of #169:
IF this be the case, please try to understand how important it
is for me to see these purchase and/or option AGREEMENTS, so I
can READ THEM FOR MYSELF, because I do NOT KNOW WHAT'S ALL BEEN
GOING ON:
I'M BEWILDERED as to HOW I CAN POSSIBLY BE INVOLVED with ANY of
the trunk line of IMPROVEMENTS for YOUR PROJECT, IF I was NOT
INFORMED OF OR ASKED TO SIGN ANY PURCHASE AND/OR OPTION AGREE-
MENTS WITH YOU EVER:?:?:
I'd very much appreciate the time and effort you URGENTLY put
towards these PARTICULAR re~uests I made to you in JANUARY and
at this present time: Thank you:
.
But, of course, I must give you the BENEFIT OF THE DOUBT, IF
PERHAPS you have ABANDONED your DEVELOPMENT ALTOGETHER:
That's WHY C-O-M-M-U-N-I-C-A-T-I-O-N is S-O-O-O VERY VERY
ESSENTIAL::
So please WRITE to me IMMEDIATELY, but do NOT try to phone be-
c~use we are very hard to get ahold of, as I said before.
Thank you: - - KATHY (HOHLEN) SWANBERG - P.O. BOX 130 - BECKER
55308