5.0. SR 04-21-1994
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1326 Energy Por~ Drive
St. Paul, MN 55108
612-644-.4389
Fox: 612-6.4.4-9446
.800 Shelord Parkway
Minneopolis, MN 55441
612'546-0432
Fox: 612-54.4-6398
ITEM 5.
April 20, 1994
File: 230-216-20
Honorable Mayor and City Council
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
,
RE: NORTHEAST AREA (ELK PARK CENTER) TRUNK SANITARY
SEWER AND WATER
PUBLIC HEARING
Dear Councilmembers:
As you are aware, a public hearing is scheduled for the City Council meeting on April 21 st
regarding the Northeast Area Trunk Sanitary Sewer and Water improvements. These are the
utility improvements planned to serve Elk Park Center plus the Oak Pare and Hillside Estates
areas on the east side of TH 169. In addition, a portion of the School District property
between School Street and the south plat line of Elk Park Center will be served by these
improvements.
Since these improvements will serve a larger area than the immediate Elk Park Center
development, a public hearing is necessary in order to assess properties outside of the plat
boundary. We have met with Mr. Rick Foster throughout the design of these improvements,
since he is the developer of the Hillside Estates addition and also involved in the Oak Pare
development on the east side ofTH 169. It is our understanding that he does not currently
own all the property in the future phases of Hillside Estates. Portions of this property are
still in the ownership of Everett Spect. Jerry Hagen was also notified of this hearing since
he is the owner of record of the Oak Pare property south of 193rd on the east side of
TH 169. It should be noted that Mr. Spect will have the opportunity to apply for green acres
status deferral until such time that his property is developed by Mr. Foster. This should
minimize or eliminate any hardship this assessment may cause to Mr. Spect.
This is the public hearing for the improvement process. At a future date an assessment
hearing will also need to be held. It is not necessary at this particular time that the City
Council deal specifically with the assessment rates. We are currently analyzing bids and the
various costs associated with trunk sanitary sewer and water improvements throughout the
City. We have been discussing this issue with Mr. Foster since he has raised a concern
about the current assessment rate. Staff will be prepared to make a recommendation to the
City Council in the near future, prior to establishing a date for the assessment hearing on this
particular project.
"l.C'lM( _ftP
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Honorable Mayor and City Council
April 20, 1994
Page Two
Once the hearing is closed, City Council should consider the attached resolution which orders
the improvement for the Northeast Area (Elk Park Center) Trunk Sanitary Sewer and Water
improvements. A later item (item #11) on the City Council agenda will be deal with
consideration of awarding the bid and authorizing the execution of the contract for the
construction of these improvements.
If you have any questions regarding this, I will be in attendance at your April 21 st special
Council meeting.
Sincerely,
MSA, CONSULTING ENGINEERS
~~
Terry I. Maurer, P.E.
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Attachment
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RESOLUTION
-
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A RESOLUTION FOR THE CITY OF ELK RIVER
A RESOLUTION ORDERING THE IMPROVEMENT IN
THE MA ITER OF THE NORTHEAST (ELK PARK CENTER) AREA
TRUNK SANITARY SEWER AND WATER IMPROVEMENT
OF 1994
WHEREAS a public hearing relating to the Northeast (Elk Park Center) Area Trunk Sanitary
Sewer and Water improvement was held before the Elk River City Council after
ten days mailed notice and two weeks published notice of the hearing was
given; and
WHEREAS the City Council has duly considered the Feasibility Report and those matters
presented at the public hearing by those persons desiring to be heard on the
matter;
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Elk River,
Minnesota:
1.
The Northeast (Elk Park Center) Area Trunk Sanitary Sewer and Water improvement
is hereby ordered as recommended in the Feasibility Report dated February 1, 1994.
Passed and adopted this 21st day of April, 1994.
Henry A. Duitsman, Mayor
A TrEST;
Sandra A. Thackeray, City Clerk
.
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FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
04.20.1994 13:03
P. 1
DEVELOPER AGREEMBNT
ELK PARK CENTER
THIS AGREEMENT, made and entered into this
day of
, 1994, by and between the CITY OF ELK RIVER, a
municipal corporation organized under the laws of the State of
Minnesota (the City) and ELK PARK CENTER LIMITED PARTNERSHIP, a
Minnesota Limited Partnership (the Developer);
WIT N E SSE T H:
WHBREAS, Developer has made application to the City for
approval of a conditional use permit to develop a shopping center
(the Project) and for approval of preliminary and final plats of
certain property located within the City and described on
Exhibit A attached hereto (the Subdivision); and
WHEREAS, the City Council of the City of Elk River (the City
Council) adopted Resolution No. ,93-81 (attached as Exhibit B
hereto) on December 20, 1993, approving a conditional use permit
for the Subdivision, subject to a number of conditions; and
WHEREAS, the City Council adopted Resolution No. 94-____
(attached as Exhibit C hereto) on February 7, 1994, approving the
preliminary plat for the Subdivision, subject to a number of
conditions; and
WHEREAS, the City Council adopted Resolution No. 94-____
(attached as Exhibit D hereto) on April 21, 1994, approving the
final plat for the Subdivision, subject to a number of conditions;
and
WHEREAS, one of the conditions of the approval of the
conditional use permit and preliminary and final plats of the
_
_I
_
FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
04.20.1994 12:46
P. 2
Subdivision is that Developer enter into a Developers Agreement
(this Agreement) with the City prior to the release of the final
plat for recording; and
WHEREAS, the purposes of this Developers Agreement are to
provide for the construction of all on-site and off-site public
improvements necessary for development of the Subdivision as
proposed by Developer, to provide for payment by Developer of the
costs for all on-~ite public improvements and Developer's share of
the costs for off-site public improvements, and to provide for the
transfer of certain land interests and payments to the City, so as
to fully comply with the Subdivision Ordinance;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and conditions hereinafter contained, it is hereby
agreed as follows:
1.) Warranty of Developer - Developer hereby warrants and
represents to City, as inducement to City's entering into this
Agreement, that Developer is the fee owner of all of the
properties located within the Subdivision. .
2.) I~rovements - In accordance with the feasibility study
prepared by the City Engineer dated February 1, 1994, the
application materials submitted by Developer, the preliminary and
final plats of the Subdivision, the City Council resolutions
attached as Exhibi'ts B, C, and D hereto, and the applicable
standards and ordinances of the City, the following described
improvements (the Improvements) shall be constructed and installed
on the te~s and conditions hereinafter contained:
(01) Site grading to elevations shown in the approved grading
and drainage plan (Site Grading);
(02) Street grading, graveling and surfacing, including
curbs, gutters, driveway approaches, first sealcoating,
constructing and sodding of berms, swales and boulevards, and
planting trees on boulevards (Street Improvements);
(03) Sto~ sewers, including all necessary catch basins,
ditches, inlets, retention areas and other appurtenances
(Storm Sewer Improvements);
2.
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FROM L~RKIN HOFFM~N D~LY LINDGREN 612-8963265
04.20.1994 12147
P. 3
(04) Sanitary sewer mains and lateral extensions, including
all necessary building services and other appurtenances
(Sanitary Sewer Improvements);
(05) Watermain and lateral extensions, including all
necessary building services, hydrants, valves and other
appurtenances (Watermain Improvements);
(06) Grading, graveling and surfacing, including curbs,
gutters, medians, islands and all required landscaping
improvements, of all parking lots and parking areas, including
driveways and drive aisles (Parking Lot Improvements);
(07) Grading, sodding and installation of all required
landscaping improvements including berms, grass, shrubs,
trees, lighting fixtures, and other required improvements
(Landscaping Improvements);
3.) ~pes of Improvements - For the purposes of this
Agreement:
(01) "Off-Site Improvements" shall mean Improvements to be
constructed and installed outside the boundaries of the
Subdivision;
(02) "On-Site Improvements" shall mean Improvements to be
constructed and installed within the boundaries of the
Subdivision;
(03) "External Improvements" shall mean On-Site
Improvements to be constructed and installed within
dedicated public rights-of-way, either existing or to be
dedicated pursuant to the Final Plat for the Subdivision;
(04) "Internal Improvements" shall mean On-Site
Improvements to be constructed and installed on platted
lots and/or outlots created by the Final Plat for the
Subdivision;
(05) "Developer Installed Improvements" shall mean
Improvements to be constructed and installed by Developer
at Developer's direct expense;
(06) "City Installed Improvements" shall mean Improvements
to be constructed and installed by the City.
4.) DevelQper Installed Improvements -
(01) Improvements to be Installed - Developer will
construct and install at Developer's direct expense the
following Developer Installed Improvements, according to
the following terms and conditions:
3.
FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
04.20.1994 12:47
P. 4
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(a) All On-Site Grading Improvements, plus Grading
of the pond area on the 100' wide Drainage
Easement to the immediate south of the
Subdivision;
(b) All Internal Storm Sewer Improvements;
(c) All Internal Sanitary Sewer Improvements;
(d) All Internal Watermain Improvements;
(e) All Internal Parking Lot Improvements; and
(f) All Landscaping Improvements, including required
Landscaping of the 100' wide Drainage Easement
to the immediate south of the Subdivision.
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(02) Completion of Developer Installed I~rovements - No
Certificate of Occupancy will be issued for any building in
the Subdivision until the City Engineer certifies that all
Developer Installed Improvements have been completed. The
City Engineer may approve the issuance of a Certificate of
Occupancy prior to final completion of all Developer
Installed Improvements if the following conditions are met:
(a) failure to complete the Developer Installed
Improvements is due to weather conditions; and
(b) City determines, ,in its sole discretion, that
issuing the requested certificate of occupancy:
(i) will not be in conflict with the City
Council resolutions approving the Project
and the Subdivision;
(ii) will not be in conflict with the terms of
this Agreement or the PUD Agreement; and
(iii) will not be contrary to the pUblic
interest; and
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(c) Developer certifies that it will complete the
Developer Installed Improvements within twelve
(12) months of the issuance of the Certificate
of Occupancy; and
(d) Developer posts a letter of credit or other
surety acceptable to City in an amount
determined by City to be sufficient to cover the
cost of installing the uncompleted Developer
Installed Improvements. This security will be
returned to Developer when all required
Developer Installed Improvements are completed
by ,Developer. If Developer fails to complete
4.
FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
04.20.1994 12:48
P. 5
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the Developer Installed Improvements within
twelve (12) months of the issuance of a
Certificate of Occupancy, the security will be
drawn upon and used by City to complete the
Developer Installed Improvements.
(03) ~roval of ContractQ~ - All contractor(s) selected
by Developer to construct and install Storm Sewer, Sanitary
Sewer and Watermain Improvements must be determined by City
to be acceptable and approved by the City Engineer in
writing.
(04) Construqtion flans - Plans and specifications for
construction, materials and equipment for the installation
of Storm Sewer, Sanitary Sewer and Watermain Improvements
shall be appr9ved by the City Engineer and the installation
of all such improvements shall be in accordance with the
approved plans and specifications. Such plans and
specifications shall be based upon such engineering
surveys, including soil borings and material tests,
determined to be necessary by the City Engineer.
(05) Supervision an4 City Services - Construction and
installation plans and activity for Developer Installed
Improvements shall be reviewed by and subject to the
supervision of the City. Developer will cause the
contractor(s) to furnish the City Engineer with a schedule
of proposed operations at least five (5) days prior to the
commencement of construction of Developer Installed
Improvements. The City Bngineer shall inspect all
Developer Installed Improvements during and after
construction for compliance with approved specifications.
Developer will notify the City Engineer at such times
during construction as the City Engineer requires for
inspection purposes.
(06) City Fees - Developer shall reimburse City for all
City's costs and expenses incurred for review and
supervision of plans and construction of Developer
Installed Improvements, which compensation shall be due and
payable to City within thirty (30) days following the
receipt of a statement therefor.
(07) ~asements - Developer shall convey to City, prior to
the commencement of construction on Developer Installed
Improvements, and at no cost to City, permanent utility
easements for the installation and maintenance of Developer
Installed Sanitary Sewer and Watermain Improvements, and
permanent drainage easements for the on and off-site
drainage areas along the southern boundary of the
Subdivision, as required by the City Engineer. All such
easements shall be in recordable form acceptable to City
and contain such terms and conditions as City may
prescribe.
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5.
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FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
04.20.1994 12:49
P. 6
(08) Insurange - Developer shall cause each contractor
engaged in the construction and installation of any
Developer Installed Improvement to furnish the City with
evidence acceptable to City showing such insurance coverage
(including workers' compensation, liability, and property
damage) in such amounts as are required for City
construction contracts.
(09) Faithful Performance of Construction Contracts -
Developer will fully and faithfully perform the
installation and construction of Developer Installed
Improvements in accordance with the approved plans and
specifications therefor, and shall comply with all terms of
any and all contracts entered into by Developer for the
installation and construction of all such improvements, at
no expense to the City. Developer hereby guarantees the
workmanship and materials respecting the Sanitary Sewer and
Watermain Improvements for a period of one (1) year
following the City's final acceptance of these improvements
and agrees to repair or replace, as directed by the City,
and at Developer's sole cost and expense, any work or
materials that become defective within said one (1) year
period, even though notice thereof be given by the City
after said one (1) year period, provided that said notice
shall be given within ninety (90) days of the end of said
one (1)' year period.
(10) City Acceptance - City shall accept, at no cost,
ownership of the Developer Installed Sanitary Sewer and
Wate~in Improvements within thirty (30) days following
receipt by City of notice from Developer that such
Improvements have been completed, provided that such
Improvements have been constructed in compliance with the
plans and specifications therefor and City requirements
with respect thereto as determined by the City.
5.) P~tition for City InstalleQ I~rovements - By
execution of this Agreement, Developer petitions the City to
install the On-Site and Off-Site City Installed Improvements
described in paragraphs 6 and 7 below, and to assess the costs
of constructing the City Installed Improvements to the
Subdivision as provided by the terms of this Agreement.
Pursuant to this petition, the City Council will order the
installation of the City Installed Improvements in accordance
with this Agreement and the applicable statutory provisions,
and will a~sess the costs therof to the Subdivision as provided
in this Agreement.
6.) City Installed On-s~te Improvements -
(01) Improvements - The following On-site Improvements
shall be installed by the City:
6.
FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
134.213.1994 12:513
P. 7
(a) The following Street Improvements:
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Freeport Avenue from Jackson Avenue to the
southern boundary of the Subdivision;
191st Avenue from TH-169 to Freeport
Avenue, including turn lanes onto and off
of TH-169;
(b) External Sanitary Sewer Improvements;
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(c) External Watermain Improvements; and
(d) External Sto~ Sewer Improvements.
(02) Payment of Costs for City Installed On-site
Improvements - The entire cost of the City Installed On-
site Improvements, including any engineering, legal and
administrative costs incurred by the City, shall be paid by
Developer to the City as special assessments levied against
the properties in the SUbdivision, as provided by this
Agreement.
(03) Trunk Facilities and Lateral Benefit - Trunk Sanitary
Sewer and Watermain facilities will be constructed through
a portion of the Subdivision. The Subdivision will not be
assessed the direct cost of these trunk facilities, but
will be assessed only the trunk assessments identified in
Section 7(02) of this Agreement for these facilities. The
trunk sanitary sewer and wate~ain facilities running
through the Subdivision will provide lateral benefit to
several lots in the Subdivision. In addition to the trunk
assessments identified in Section 7(02), Developer agrees
that the Subdivision shall be assessed for lateral sanitary
sewer and watermain benefit at the rate of $40 per running
foot, for a total amount of Forty-two Thousand Dollars
($42,000.00) .
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7.) City Installed Off-Site I~provements - The following
Off-Site Improvements are necessary to provide utilities to the
Subdivision and to accommodate the traffic which development of
the Subdivision will generate. The installation and
construction of these Off-Site Improvements is necessary for
development of the Subdivision as proposed. Developer
therefore petitions for the installation of these Off-Site
Improvements and agrees that the Subdivision shall be assessed
for its share of the costs thereof, including any engineering,
legal and administrative costs incurred by the City, as
provided below:
(01) Off-Site Street Improvements - The following Off-Site
Street Improvements shall be installed by City, and the
Subdivision shall be assessed the indicated percentage of
the cost of each Improvement:
7.
FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
04.20.1994 12:51
P. 8
Percentage of Cost to be
e Improvement Assessed to the Subdivision
(a) Freeport Avenue from the
southern boundary of the
Subdivision to School Street,
including Site Grading and
Storm Se~er Improvements
necessary for this Street
Improvement lOOt
(b) New left turn lane from
northbound TH-169 to westbound
School Street lOOt
( c) New signals at TH-169 and
School Street lOOt
(d) Widening School Street from
TH-169 to Gates Avenue lOOt
(e) Signalizing the intersection
at School Street and Freeport
Avenue lOOt
(f) Widening School Street from
Gates Avenue to 500 feet east
e of Jackson Avenue sot
(g) Widening School Street from
500 feet 'east of Jackson
Avenue to 500 feet west of
Jackson Avenue 25t
(h) Widening Jackson Avenue from
School Street to 500 feet
north of School Street 25t
(i) Widening Jackson Avenue from
500 feet north of School
Street to Highland Road sot
(j) . Widening Jackson Avenue from
Highland Road to TH-169 lOOt
(02) Trunk Sanitary Sewer and Watermain Improvements _
Development of the Subdivision will require the
installation of new City trunk watermain and sanitary sewer
facilities. City agrees to install these trunk facilities,
and Developer agrees that the Subdivision shall be assessed
its share for these trunk facilities at the rate of Three
Thousand Eight Hundred Dollars ($3,800.00) per gross acre,
for a total amount of Two Hundred Four Thousand Nine
Hundred Thirty-four Dollars ($204,934.00).
8.
FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
04.20.1994 12=51
P. 9
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(03) Stor.m Sewer I~rovements . Off-Site Stor.m Sewer
Improvements necessary for development of the Subdivision
shall be installed and assessed as follows:
(a) Outlet from Pond . City shall construct and
install an outlet pipe from the drainage pond on
the southern edge of the Subdivision south to
existing storm sewer facilities in School
Street. Developer shall convey to City, prior
to the commencement of construction on City
Installed Improvements, and at no cost to City,
a permanent easement for the installation and
maintenance of this Storm Sewer pipe. The said
easement shall be in recordable for.m acceptable
to City and shall cover such area and contain
such terms as City shall prescribe. The entire
cost of constructing and installing this Storm
Sewer Improvement, inCluding any engineering,
legal and administrative costs incurred by City,
shall be assessed to the Subdivision.
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(b) Trunk Facilities . Development of the
Subdivision will require the improvement of
existing trunk storm sewer facilities.
Developer agrees that the Subdivision shall be
assessed for Trunk Stor.m Sewer Improvements at
the rate of $600 per gross acre, for a total
amount of Thirty-two Thousand Three Hundred
Fifty-eight Dollars ($32,358.00).
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8.) Levy of Special Assessments.
(01) Special Assessments. The Developer's share of the
cost of City Installed Improvements, as set forth and
agreed to in paragraphs 6 and 7 of this Agreement, and all
engineering, legal and administrative costs incurred by the
City in the installation of the Improvements, shall be paid
by Developer to City as special assessments (the Special
Assessments) levied against the benefitted properties in
the Subdivision as provided herein. Reference herein to
Special Assessments shall include all interest due thereon.
All installments of such assessments shall be paid as
assessments to the Treasurer of Sherburne County as and
when the general property taxes become due upon said
property.
(02) Payment of Special Assessments - The Special
Assessments shall be paid as follows:
(a) Block 2, Lot 7: The Special Assessments levied
against this lot in the amount of Six Hundred
Ten Thousand Eight Hundred Forty-one Dollars
($610,841.00) shall be paid in full prior to
release of the plat for recording.
9.
Lot and Block
Block 1:
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Lot 2
Lot 3
Block 2:
Lot 1
Lot 2
Lot 3
Lot 4
Lot 5
Lot 6
Lot 7
Lot 8
Lot 9
Block 3:
Lot 1
Block 4 :
Lot 1
Lot 2
Lot 3
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04.20.1994 14:52
P. 2
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(10) Remaining lots on Block 2: The Special
Assessments levied against the remaining lots in
Block 2 shall be paid in twenty-eight (28) equal
semi-annual installments, beginning in May 1996,
with interest on unpaid installments at the rate
of one and one-half percent (1-1/2%) per annum
above the rate at which the improvement bonds
for the Improvements are sold.
(11) Blocks 1, 3 and 4: Special Assessments levied
against the lots in Blocks 1, 3 and 4 of the
Subdivision shall be paid in ten (10) equal
semi-annual installments, beginning in May 1996,
with interest on unpaid installments at the rate
of one and one-half percent (1-1/2%) per annum
above the rate at which the improvement bonds
for the Improvements are sold.
9.) Ap~ortionment of Special Assessments - The Special
Assessments shall be apportioned to the various lots in the
Subdivision as follows:
Percentage of Total Special
Assessments to be Levied
Against This Lot
4.7%
2.6%
2.2%
9.6%
1.9%
2.0%
16.9%
2.8%
10.4%
22.4t
7.8t
4.6'
3.5t
3.9%
1.9%
2.8%
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FROM L~RKIN HOFFM~N D~LY LINDGREN 612-8963265
04.20.1994 12:52
P. 11
10.) Waiver of Right to Appeal - Developer has petitioned
the City to install the Improvements identified in this
Agreement and has agreed to make paYment therefor as Special
Assessments levied against the Subdivision. Developer
specifically waives any objection to the procedure pursuant to
which the City orders the Improvements installed, including any
objection to the City's failure to strictly follow the notice
and other requirements of Minnesota Statutes Chapter 429 with
respect to ordering the Improvements installed. Developer
further expressly waives objection to any irregularity with
regard to assessment of the amounts set forth in this
Agreement; expressly waives any claim that these amounts are
excessive; and expressly waives all rights of appeal, including
any rights under Chapter 429, Minnesota Statutes, from the
Special Assessments levied against the Subdivision by City as
provided by the t~rms of this Agreement.
11.) Land Dedication -
(01) Park Dedication - In full satisfaction of the dedication
requirements of Section 1008.18 of the Subdivision Ordinance,
Developer agrees to pay and the City agrees to accept the sum
of Seventy Nine Thousand Three Hundred Fifty Dollars
($79,350.00), which Developer agrees is equivalent to the fair
market value of the land which it would be required to
dedicate. The above sum shall be paid prior to release of the
final plat for recording.
(02) Road Dedications -
(a) On-Site ~oads - Freeport Avenue and 191st Avenue,
within the boundaries of the Subdivision, shall be
dedicated 'to the City on the plat.
(b) Off-Site Roads - Developer shall provide the City
with fee title, or a suitable alternative property
interest (in the City's sole discretion), to the
80 foot wide right-of-way required for the
installation of Freeport Avenue and related
Improvements between the Subdivision and School
Street. Developer shall also obtain and provide the
City with the necessary easements and approvals from
the Minnesota Department of Transportation (MnDOT)
required for the installation of City Installed
Improvements in MnDOT right-of-way.
(03) Outlot A - Outlot A shall be deeded to the City.
12.) Security for Developer's Performance -
(01) Security Dur~Qg Construction Period - City will install
an estimated Three Million Eight Hundred Thousand Dollars
($3,800,000.00) in City Installed On-Site and Off-Site
Improvements to enable development of the Project to proceed.
11.
FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
04.20.1994 12153
P. 12
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Virtually the, entire cost of these Improvements will be
incurred by City prior to occupancy of the Project. To insure
that the cost of installing the City Installed Improvements
will be paid if the Project does not proceed, Developer shall
file with the City Clerk a cash deposit, a penal bond with
corporate surety acceptable to City, or an irrevocable and
unconditional Letter of Credit substantially in the form
attached hereto as Exhibit E from a bank acceptable to the
City, in the amount of Two Million Dollars ($2,000,000.00).
Said Letter of Credit shall provide that funds shall be paid
to City upon written demand of City to the extent of default
herein by Developer in the payment of any amount due or the
performance of any other duty or obligation of Developer
pursuant to this Agreement, including Developer's obligation
to make payment of Special Assessments for Improvements
pursuant hereto, whether accelerated or otherwise. No work
will be commenced on the City Installed Improvements until
Developer has filed the cash deposit, bond or Letter of
Credit. The cash deposit shall be refunded, or the bond or
Letter of Credit released, when Certificates of Occupancy have
been issued for One Hundred Twenty-seven Thousand (127,000)
square feet of gross floor space on Block 2 of the Subdivision
and the security required pursuant to Section 12(02) has been
submitted and'accepted by City.
(02) Security for P~yment of Assessments - Upon release of
the security required by Section 12(01) above, Developer shall
provide City with a guarantee, substantially in the form
attached hereto as Exhibit F, from Kraus-Anderson Incorporated
(Guarantor) in the amount of the total assessments against the
Subdivision then outstanding (the Guarantee). The Guarantee
shall remain in effect until all of the special assessments
are paid, but may be reduced from time to time as payments are
made on the special assessments and as alternative security is
provided for the payment of special assessments on Lots which
Developer has sold to third parties.
(03) Remedies on Default - In the event Developer, or its
heirs, successors or assigns, violates any of the covenants
and agreements herein contained, or fails to pay any
installment of any special assessment levied pursuant hereto,
or any interest thereon, when the same is to be paid pursuant
hereto, City, at its option, in addition to its other rights
and remedies, by written notice of default given to Developer
and Guarantor, and if not cured within thirty (30) days after
said written qotice of if such default would normally take
longer than thirty (30) days to cure then if not cured in such
longer time as shall be required provided Developer commences
the cure in such thirty (30) day period and diligently pursues
such a cure thereafter, may declare all amounts to be paid by
Developer pursuant to this Agreement, including all of the
unpaid special assessments which are then estimated or levied
pursuant to this Agreement, due and payable in full, with
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FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
134.213.1994 12:54
P. 13
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interest, immediately, or on such date as City shall specify
in its notice of default to Developer and Guarantor. If
Developer fails to make payment in the amount and at the time
specified in the City's Notice of Default, City may, at its
option, draw on the security provided by Developer pursuant to
paragraph 12 of this Agreement, including the Guarantee,
and/or commence legal action against Developer and/or
Guarantor to collect the entire amount owed by Developer,
including the, unpaid balance of the special assessments levied
or estimated pursuant hereto, with interest, including
reasonable attorneys' fees. Notwithstanding the foregoing, a
default by Developer shall not be cause for accelerating the
payment of assessments on parcels within the Subdivision which
Developer has sold to third parties unrelated to Developer or
its partners; and a default by such an unrelated third party
owner of a parcel within the Subdivision shall not be cause
for invoking the remedies provided for in this Agreement
against Developer. However, such third party owners are
subject to the terms of this Agreement and are subject to the
remedies provided for herein in the event of their own
default.
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13.) Additional Conditions -
(01) The conditions set forth in City Council Resolution
No. 93-81 approving a conditional use permit for the
Project, Resolution No. 94-____, granting final plat
approval for the Subdivision; and the terms and conditions
set forth in the Planned Unit Development Agreement for the
Subdivision (attached as Exhibit G hereto), are hereby
incorporated by reference into this Developer Agreement and
made a part hereof.
(02) Additional Re9ulato~y Approva~s - All additional
regulatory approvals required for construction of the
Improvements or development of the Subdivision shall be
obtained before commencement of construction on the
Improvements.
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(03) Combination of Lots - The entire portion of the
Subdivision which Developer proposes to plat as Outlot A,
Elk Park Center Second Addition, shall be subject to an
easement for drainage purposes. This lot shall be combined
for tax purposes with Outlot B, Elk Park Center Addition,
prior to the issuance of any building permits for the
Subdivision.
(04) OUtlot B - No building permits shall be issued for
Outlot B, except for a signage structure as approved by the
City Council.
(05) Developer shall pay applicable Water Availability
13.
FROM L~RKIN HOFFM~N D~LY LINDGREN 612-8963265
04.20.1994 12:55
P. 14
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Charges to Elk River Municipal Utilities, and shall provide
evidence of payment to the City prior to release of the
final plat for recording.
(06) Developer shall reimburse the City for the City's
costs of reviewing the preliminary and final plat for the
Subdivision prior to release of the final plat for
recording.
(07) Street lights shall be installed along Freeport
Avenue from Jackson Avenue to School Street and along 191st
Avenue from Freeport to Highway 169 at Developer's expense.
Elk River Municipal Utilities shall determine the location
and type of street light to be installed and shall
determine whether the street lights will be installed by
Developer or by Elk River Municipal Utilities. If
installed by Elk River MUnicipal Utilities, Developer shall
make payment for the street lights directly to Elk River
Municipal Utilities and failure to do so shall be
considered a violation of this Agreement.
(08) Street signs shall be installed in the Subdivision by
City and Developer shall reimburse City for the costs of
the street signs.
14.) General Provisions -
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(01) Building and Occupa~cy Permits - If the Developer fails
to comply with any of the provisions hereof, the City may
refuse to issue a building permit or certificate of occupancy
for any lot or parcel in the Subdivision except that City will
not withhold the issuance of a building permit or certificate
of occupancy solely for non-payment of special assessments for
parcels sold to third parties unrelated to Developer or its
partners if the third party owner has either paid in full its
share of the special assessments pursuant hereto or provided
alternative security pursuant to paragraph 12(2) of this
Agreement. City will not issue any Certificate of Occupancy
for any building constructed on any lot or parcel in the
Subdivision until all Improvements are completed and approved
by the City Engineer. Developer agrees to advise purchasers
of any lot or parcel within the Subdivision of the existence
of this Contract and the obligations and restrictions created
herein prior to the completion of a sale. Further, Developer
agrees to save and hold the City harmless from any and all
claims or actions arising from the right to withhold the
issuance of such permits and certificates and from other
provisions hereof.
(02) Binding Effect - The terms and provisions hereof shall
be binding upon, and inure to the benefit of the heirs,
representatives, successors and assigns of the parties hereto
and shall be binding upon all future owners of all or any part
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FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
04.20.1994 12:56
P. 15
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of the Subdivision and shall be deemed covenants running with
the land. References herein to Developer, if there be more
than one, shall mean each and all of them. This Agreement
shall be placed of record so as to give notice hereof to
subsequent purchasers and encumbrances of all or any part of
the Subdivision, and all recording fees, if any, shall be paid
by the Developer.
(03) Severabl~ - In the event that any portion of this
Agreement shall be held invalid for any reason, the same shall
not affect in any respect whatsoever the validity of the
remainder of this Agreement.
(04) Waiver - Any waiver, whether express or implied, by any
party of a breach of any provision of this Agreement will not
operate as or be construed to be a waiver of any subsequent
breach of this Agreement.
(05) Notices - All notices and demands specified herein shall
be deemed appropriately and timely given when delivered
personally or deposited in the United States mail to the
addresses hereinafter set forth by certified mail (return
receipt requested). The addresses of the parties hereto are
as follows un~il changed by written notice given as above:
If to the City at:
City of Elk River
Attn: City Administrator
P.o. Box 490
13065 Orono Parkway
Elk River, Minnesota 55330
Kraus-Anderson of Elk River, Inc.
Attn: Burton Dahlberg
523 South 8th Street
Minneapolis, Minnesota 55402
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If to the Developer at:
If to the Guarantor at:
Kraus-Anderson, Incorporated
Attn: Burton Dahlberg
523 South 8th Street
Minneapolis, Minnesota 55402
(06) Final Plat ~roval - The City'S final approval of the
Subdivision plat is hereby made conditional upon the execution
and delivery of this Agreement and the City'S receipt of all
petitions, security and other items specified herein.
(07) Filing of Final Plat and Developer Agreement - Before
construction commences on the Improvements, the Final Plat of
the Subdivision and this Developer Agreement must be filed and
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FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
04.20.1994 12:56
P. 16
recorded and all necessary easements and dedications shall
have been conveyed to the City.
(08) Incorporation by Reference - All plans, special
provisions, proposals, specifications and contracts for the
Improvements to be made pursuant to this Agreement shall be
and hereby are made a part of this Agreement by reference as
fully as if set forth herein in full.
(09) No Replacement - This Agreement is in addition to and is
not in replacement of the terms and conditions of the Petition
for.Public Improvements and Waiver of Right to Public Hearing
and Right to Object relating to the Subdivision executed by
Developer.
IN WITNESS WHEREOF, the City and Developer have caused this
Agreement to be duly executed on the day and year first above
written.
CITY OF ELK RIVER
By:
Henry A. Duitsman
Its: Mayor
By:
PatrickD. Klaers
Its: City Administrator
DEVELOPER:
BLK PARK CENTER LIMITBD
PARTNERSHIP
BY: KRAUS-ANDERSON OF ELK RIVER, INC.
Its General Partner
By:
Burton Dahlberg
Its:
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FROM LRRKIN HOFFMRN DRLV LINDGREN 612-8963265
04.20.1994 12:57
P. 17
GUARANTOR:
KRAUS-ANDERSON, INCORPORATED
By:
Burton Dahlb.erg
Its: President
STATE OF MINNESOTA )
) SSe
COUNTY OF SHERBURNE)
The
day of
Klaers,
City of
foregoing instrument was acknowledged before me this ____
, 1994, by Henry A. Duitsman and Patrick D.
the Mayor and City Administrator, respectively, for the
Elk River, Minnesota.
Notary Public
STATE OF MINNESOTA )
) SSe
COUNTY OF SHERBURNE)
The foregoing instrument was acknowledged before me this ____
day of , 1994, by Burton Dahlberg, the
of Kraus-Anderson of Elk River, Inc., a Minnesota corporation and
the General Partner of Elk Park Center Limited Partnership, on
behalf of the corporation and the partnership.
Notary Public
STATE OF MINNESOTA )
) SSe
COUNTY OF SHERBURNE)
The foregoing instrument was acknowledge~ before me this ____
day of , 1994, by Burton Dahlberg, the President of
KraUS-Anderson, Incorporated, a Minnesota corporation on behalf
of the corporation.
Notary Public
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FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
,
04.20.1994 13: 12
P. 1
THIS INSTRUMENT WAS DRAFTED BY:
LARKIN, HOFFMAN, DALY & LINDGREN, Ltd.
1500 Norwest Financial Center
7900 Xerxes Avenue South
Bloomington, Minnesota 55431
(PKB)
18.
PKB:IYOs
FROM LRRKIH HOFFMRH DRLY LIHDGREH 612-8963265
04.20.1994 12:58
P. 19
.
EXHIBIT A
LEGAL DESCRIPTION
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FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
P.20
04.20.1994 12:58
EXHIBIT E
IRREVOCABLE LETTER OF CREDIT NO.
TO: The City of Elk River, Minnesota
We hereby issue an irrevocable stand-by Letter of Credit No.
in favor of the City of Elk River, Minnesota (the !lCity"), for
account of (the "Developer II ), which is
available by negotiation of City's draft at sight on or before the
____ day of , 19__, for lOOt of statement value, up to an
amount not to exceed Dollars
($ ), accompanied by a written statement, substantially in
the form of the written statement attached hereto as Exhibit A,
executed by the City Administrator of the City or his designee,
bearing the number of this Letter of Credit and stating that the
amount of the City's draft covers the indebtedness of the Developer
to the City provided for in the Developer Agreement by and between
the City and the Developer, dated as of the ____ day of
19__
We hereby agree with the City that all drafts drawn under and in
substantial compliance with the terms of this credit will be duly
honored on presentation.
The credit shall be construed in accordance with the laws of the
State of Minnesota including, in particular, Minnesota Statutes,
Sections 336.5-101 to 336.5-117 (Uniform Commercial Code, Article 5,
Letters of Credit).
By:
Its:
FROM L~RKIN HOFFM~N D~LY LINDGREN 612-8963265
94.29.1994 12=59
P.21
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TO:
BXHIBIT A
The undersigned City Administrator (or designee of the City
Administrator) of the City of Blk River, Minnesota (the "Cityll)
hereby states that the amount of the draft accompanying this
statement covers the indebtedness of (the
"Developer") to the City provided for in the Developer Agreement by
and between the City and the Developer dated as of the ____ day of
, 19_
The accompanying draft is drawn on Irrevocable Letter of Credit
No.
City of Blk River, Minnesota
By:
FROM LRRKIN HOFFMRN DRLY LINDGREN 612-8963265
04.20.1994 12:59
P.22
EXHIBIT F
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CITY OF ELK RIVER
CITY COUNCIL
RESOLUTION NO. 93 - 81
A RESOLUTION MAKING FINDINGS OF FACT REGARDING THE ELK PARK CENTER
PROPOSAL, APPROVING A CONDITIONAL USE PERMIT FOR ELK PARK CENTER,
AND SETTING FORTH THE CONDITIONS FOR ISSUANCE OF A CONDITIONAL USE
PERMIT FOR ELK PARK CENTER
WHEREAS, Elk River Associates, Ltd., together with Kraus Anderson,
Incorporated (the Developers) have applied for a
Conditional Use Permit to develop a shopping center (the
Project) on certain property located north of the School
District property between Jackson Avenue and Highway 169
(the Property); and
WHEREAS, the City Council, on September 31, 1991, and June 15,
1992, took action to rezone the Property to Planned Unit
Development and designate the Property for Highway
Business Uses on the City's Comprehensive Land Use map;
and
WHEREAS, pursuant to Sections 900.12(15) and 900.42 of the Elk
River City Code of Ordinances, a Conditional Use Permit
and preliminary plat approval must be obtained to develop
the Property as proposed by Developers;' and
~~EREAS, an application for a Conditional Use Permit and
Preliminary Plat approval was submitted to the City in
July 1992; and
WHEREAS, a public hearing was held on this application before the
Elk River Planning Commission on August 25, 1992, at which
time the Planning Commission heard a presentation on the
Project, took testimony from all those present who asked
to speak on the matter, and continued action on the
application due to a lack of sufficient information; and
w~EREAS, the Developers subsequently submitted additional
information and a second public hearing was held before
the Elk River Planning Commission on June 10, 1993, at
which time the Planning Commission heard a presentation on
the Project, took testimony from all those present who
asked to speak on the matter, and the application was
continued again for lack of sufficient information; and
WHEREAS, the Developers subsequently revised the site plan for the
Project and submitted additional information in support of
the application for a Conditional Use Permit and
preliminary plat approval; and
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WHEREAS, the Elk River Planning Commission held a public hearing on
the revised site plan on October 19, 1993, at which time
the Planning Commission heard a presentation on the
Project and received testimony from all those present who
asked to speak on the matter; and
WHEREAS, the Planning Commission, at its meeting on October 19,
1993, recommended approval of the Conditional Use Permit
and Preliminary Plat subject to a number of conditions;
and
WHEREAS, the City Council held a public hearing on the application
for a Conditional Use Permit and Preliminary Plat on
October 26, 1993, at which time the City Council heard a
presentation on the Project and took testimony from all
those present who asked to speak on the matter; and
WHEREAS, the City Council also received a number of written
comments on the Project both before and at the public
hearing held on October 26, 1993; and
WHEREAS, the City Council, at the close of the public hearing on
October 26, 1993, identified a number of concerns and
issues with the proposed project; and
WHEREAS, the City Council, following the public hearing and Council
discussion of the Project on October 26,. 1993, adopted
_ri motions denying the Conditional Use Permit and Preliminary
Plat for Elk Park Center; and
WHEREAS, the motions to deny were subsequently amended by separate
motions of the City Council on October 26, 1993, which
motions rescinded the denials of the Conditional Use
Permit and Preliminary Plat and directed City staff to
prepare Findings of Fact in a Resolution of Denial of the
Conditional Use Permit and Preliminary Plat, for
consideration by the City Council on November 15, 1993;
and
WHEREAS, City staff subsequently prepared a proposed "Resolution
Making Findings of Fact Regarding the Elk Park Center
Proposal and Denying a Conditional Use Permit and
Preliminary Plat Approval for Elk Park Center" for
consideration by the City Council, which resolution
identified 12 reasons for denial of the Conditional Use
Permit and Preliminary Plat; and
WHEREAS, the City Council reviewed and considered the proposed
Resolution for Denial at its regularly scheduled meeting
of November 15, 1993 and took the following actions:
o
The Council amended Section C.3. of the proposed
Resolution of Denial regarding enclosure of the
holding ponding area;
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The Council called a special meeting of the City
Council for December 13, 1993, and continued any
action on the proposed Resolution of Denial until
that meeting;
o
The Council directed staff to advertise a public
hearing for the December 13, 1993, meeting to allow
citizens to express their opinions on any revisions
or new information to be presented on the Conditional
Use Permit and Preliminary Plat;
o
The Council directed staff to work with the
Developers to address the issues identified in the
proposed Resolution of Denial;
o
The Council directed staff to prepare a feasibility
study prior to December 13, 1993, addressing the
traffic and drainage issues related to the proposed
project; and
WHEREAS, on November 22, 1993, a Work Session on Elk Park Center
was held to identify specific traffic and drainage issues
to be addressed by the City Engineer in the Feasibility
Study; and
WHEREAS, this Work Session was attended by the City Council, City
staff, and representatives of the Developers and the
Citizens Who Care organization; and
WHEREAS, the Developer subsequently submitted a revised. site plan
addressing the issues identified in the Resolution of
Denial; and
WHEREAS, the City Council, on December 13, 1993, held a public
hearing on the revised site plan submitted by the
Developer, at which time:
o
City staff reviewed the revisions to the site plan;
o
the City Engineer presented his feasibility study on
the drainage and traffic issues identified by the
City Council as major concerns;
o
the Developer addressed the 12 grounds for denial set
forth in the proposed Resolution of Denial; and
WHEREAS, the public hearing on December 13, 1993, was properly
noticed as a public hearing on the Project and the City
Council received testimony from all those present who
asked to speak on the matter; and
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WHEREAS, following the presentations from staff and the Developer,
and the testimony received from the public, the City
Council discussed the proposed project and the grounds for
denial set forth in the Resolution of Denial; and
WHEREAS, at the close of its discussion on December 13, 1993, the
City Council determined to take no action on the proposed
Resolution of Denial, and directed City staff to prepare a
Resolution of Approval of the Project, setting forth the
grounds for approval and all conditions of approval, for
consideration by the City Council at its regularly
scheduled meeting on December 20, 1993; and
WHEREAS, in its lengthy consideration of this Project the City
Council has reviewed all of the written materials
submitted by the Developers, the staff and the public
before and during the public hearings held on this matter,
and has considered the recommendation of the Planning
Commission and the testimony received at the public
hearings on October 26, 1993, and December 13, 1993; and
WHEREAS, the Zoning Ordinance of the City of Elk River sets forth
in Section 900.42(4) seven criteria for the issuance of a
Conditional Use Permit;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Elk River makes the following findings, and approves a
Conditional Use Permit for Elk Park Center, subject to the
conditions set forth herein:
I. FINDINGS
A. Specific Findings on the Issues Set Forth in
Resolution of Denial
1. Drainaqe. The revised plan conforms to City
standards and requirements by providing that all
drainage for the Project will be accommodated on
site.
2. Traffic.
o
Access from Highway 169.
The Developers have fully investigated the
possibility of obtaining full access to the
Project from Highway 169. The Minnesota
Department of Transportation analysis, as
well as the City Engineer's analysis, is
that full access from Highway 169 is not
necessary at this time. The existing
intersections on Highway 169 will handle
the traffic anticipated from this project.
The Minnesota Department of Transportation
4.
.
.
.
has indicated a willingness to look at
other solutions if levels of service
deteriorate at the existing intersections
on Highway 169.
o
Highway 169/School Street Intersection.
The City Engineer's feasibility study has
addressed how the impacts on this
intersection can be mitigated.
o
School Street and Freeport Avenue
Intersection.
o
The City Engineer's feasibility study
illustrates how this intersection can be
designed to manage traffic to and from the
Project.
School Street. from Highway 169 to Jackson.
The City Engineer's feasibility study
indicates that proposed traffic
improvements on School Street will maintain
full access to Parker School. Although
Burger King will lose direct left-in, left-
out access from School Street, access will
continue to be available via School Street
to Freeport and into Burger King off
Freeport.
o
Jackson Avenue.
The Developers have eliminated the access
off of Jackson into Taco Bell and have
added a secondary access to the Project off
of Jackson Avenue. This access will reduce
the impacts of traffic from the Project on
the intersections of Jackson/Highland and
Jackson/Freeport, as well as reducing
traffic on School Street.
o
Hiqhland Road.
The City Engineer's feasibility study
indicates that increased traffic on
Highland Road will be within acceptable
levels.
o
Highway 10 Traffic.
The City Engineer's feasibility study
indicates that traffic traveling to and
from the Project from Highway 10 will
5.
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increase existing volumes only
approximately 3% to 6%, which is an
imperceptible increase.
3.
Public Health and Safety.
o
Impact on schools.
Although the project will increase traffic
along School Street, the new access to the
Project off Jackson Avenue will reduce
traffic levels on School Street.
Furthermore, new signals at School Street
and Freeport will improve safety for
children who need to cross School Street.
The City Engineer has discussed the
increased traffic levels and proposed
redesign of School Street with the School
District. The School District has not
indicated that the increased traffic or
redesign will present any unreasonable
danger to school children.
o
Air Ouality.
The Minnesota Pollution Control Agency
(MPCA), in its review of the Environmental
Assessment Worksheet for the Project, has
not indicated any concern regarding air
quality in the area surrounding the
Project. Air quality will be looked at in
detail when the Developers apply for an
Indirect Source Permit from the MPCA.
o
Holdinq Pond.
The Developers have proposed a one-inch
mesh fence around the proposed holding pond
which will be very difficult for children
to climb over.
o
Neighborinq Property.
Increased traffic from the Project will
have an impact on neighboring properties.
However, revisions to the Plan, such as the
new access off of Jackson Avenue, will
reduce these impacts to the point where the
Project will not unreasonably affect
neighboring property.
B.
Specific Findings on the Standards for Issuance of a
Conditional Use Permit.
6.
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The City Council of the City of Elk River finds that
the Elk Park Center Project:
1. Will not endanger, injure or detrimentally
affect the use and enjoyment of other property
in the immediate vicinity or the public health,
safety, morals, comfort, convenience or general
welfare of the neighborhood or the City.
This Project will bring increased traffic
to the City of Elk River and in particular
to the area surrounding the proposed
Project. However, it is the City Council's
judgment that this traffic will not
endanger, injure or detrimentally affect
the use or enjoyment of other property.
The increased tax base and additional
services which the Project will provide the
community result in a substantial net
benefit to the City, including the
immediate surrounding area, from the
Project.
2. Will be consistent with the Comprehensive Plan.
.
The City's Comprehensive Plan designates
this property for Highway Business uses,
which the Project proposes.
3.
Will not impede the normal and orderly
development and improvement of surrounding
vacant property.
The Project will have no negative impacts
on the development of surrounding property;
and will have a positive benefit by helping
fund the extension of public utilities
which will serve surrounding properties.
4.
Will be served adequately by and will not
adversely affect essential public facilities.
.
The Project can be served by existing and
proposed public utilities, and will help
fund the extension of public utilities
which will benefit and contribute to the
development and growth of residential and
commercial property in the City. Off-site
traffic impacts of the Project will be
managed by the redesign of surrounding
roads as necessary to ensure that the
Project will not create traffic congestion
or interference with traffic on adjacent
and neighboring public thoroughfares.
7.
5.
Will not be detrimental to other persons or
property.
)
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This Project has been carefully designed,
and the impacts of traffic on surrounding
streets carefully studied, to ensure that
the Project will not detrimentally impact
other persons or property.
6. Will not result in the destruction, loss or
damage of any natural, scenic or historic
feature of major importance.
'.".'."'..
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The Environmental Assessment Worksheet
(EAW) for this Project, which has been
approved by the City Council, did not
identify any scenic or historic feature of
major importance on the site of the
proposed project.
7. Will fully comply with all other requirements of
the City's Code of Ordinances.
Following approval of a Conditional Use
Permit for this Project, the Developer will
be required to enter into a Development
Agreement and Planned Unit Development
Agreement. These agreements will ensure
that the Developer and the Project will
fully comply with all requirements of the
City's Code.
C. General Findings.
In addition to the specific findings set forth above,
the City Council further finds that the Project meets
the standards for issuance of a Conditional Use
Permit for all of the reasons stated by the City
Council, the Planning Commission and the public
during the October 19, October 26, and December 13,
1993, public hearings on the Project, including, but
not limited to:
o
The plan revisions presented on December 13,
1993, have significantly reduced the off-site
impacts of the Project and made the Project
considerably better than when it was presented
to the City Council in October.
o
The revised plans and new information submitted
on December 13, 1993, have addressed all of the
major issues with this Project.
.
8.
II.
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III.
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Decision.
It is the determination of the City Council of the
City of Elk River, for the reasons set forth above,
that the Developer has met the requirements for the
issuance of a Conditional Use Permit. Therefore, the
City Council hereby approves a Conditional Use Permit
for the Project, subject to the conditions set forth
below.
The Conditional Use Permit for Elk Park Center is
contingent upon the Developer complying with the
following conditions.
A. Plat Approval
1. Approval of the Conditional Use Permit is
contingent upon the Developer submitting
and the City Council approving a revised
Preliminary Plat which conforms to the
conditions of this Conditional Use Permit
approval, including the recommendations of
the City Planner and the City Engineer as
set forth during the December 13, 1993,
public hearing.
2.
The revised Preliminary Plat will be
considered by the City Council at a future
date, and will be approved subject to such
conditions as the Council shall deem
appropriate.
..
3. Final plat approval for the Project will
not be granted until the Developer has
entered into a Planned Unit Development
Agreement and Developers Agreement as
required by the conditions of this
Conditional Use Permit approval.
B. Planned Unit Development Agreement.
1. Approval of the Conditional Use Permit is
contingent upon a Planned Unit Development
Agreement (PUD Agreement) being entered
into between the Developer and the City
outlining the standards, uses, and
procedures for development within the Elk
Park Center PUD.
2. The Developer shall submit the following
materials, which the City shall use to
prepare a PUD Agreement:
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A proposed "Development Plan" for the
Project. The Development Plan will
provide the foundation for future site
plan reviews and shall include the
following elements:
o
A Site Plan for the Project which
incorporates all of the plan
revisions submitted to the City
Council and all of the conditions
for approval imposed by the City
Council.
o
A Landscaping Plan for the entire
Project. The Landscaping Plan
should include a landscaping
theme and demonstrate landscaping
continuity for the entire
Project.
o
A Grading Plan for the entire
Project. The Grading Plan shall
include tree protection measures
to preserve as many of the
existing trees as possible,
particularly along Jackson Road,
to provide maximum screening to
the residential areas . towards the
west. The grading plan shall
also provide for extensive
berming along Jackson Road and
Freeport Avenue. The Plan shall
show berms along Freeport Avenue
and appropriate berming along
Jackson Road to screen loading
facilities from the residential
areas towards the west.
o
A Setback Plan showing minimum
setbacks for each proposed
building in the Project.
A complete Sign Plan for the
entire Project outlining the
types and sizes of signs. The
Sign Plan shall also be
incorporated into the PUD
Agreement.
o
o
A written narrative of
Development Standards which shall
set forth and describe:
10.
.
(1) the architectural theme for
the Project, which shall be
carried out through the
entire Project and
incorporated into the PUD
Agreement;
(2) the proposed building
materials for the Project
which shall, at a minimum,
consist of a combination of
decorative rock face block,
face brick, decorative and
glazed concrete block, and
prefinished metal materials;
(3) the proposed permitted and
conditional uses within the
Project area;
(4) the proposed operational
performance standards for
the Project, including hours
of operation, etc.; and
.
(5) such other development
standards for the Project as
the Developer shall propose.
3.
The Planned Unit Development Agreement
will be prepared by City staff, in
consultation with the Developer, based
upon the materials submitted by the
Developer, the feasibility report
prepared by the City Engineer, and the
conditions of approval of the
Conditional Use Permit as set forth in
this resolution of approval.
4. The Planned Unit Development Agreement
shall include and incorporate the
following:
o
The Project Development Plan,
including:
o
Site Plan
o
Landscaping Plan
o
Grading Plan
.
11.
.
.
.
C.
3.
o Setback Plan
o
Sign Plan
o
The development standards for the
Project, including:
o
permitted and conditional
uses
o
permitted building materials
o
operation requirements and
restraints
o
such other development
standards as the City
Council shall require.
5. The Planned Unit Development Agreement
shall be approved by the City Council.
Amendments to the PUD Agreement, .
including amendments to the plans
incorporated in the PUD Agreement,
shall also be approved by the City
Council.
Developers Agreement ."
1. A Developers Agreement shall be
prepared and executed outlining the
terms and conditions for approval of
the Preliminary Plat for the Project,
including the on-site and off-site
infrastructure improvements that will
be required for development of the
Project.
2. Prior to execution of the Developers
Agreement, a complete feasibility
report shall be prepared by the City
Engineer specifying the necessary on-
site and off-site improvements
relating to the Project.
The Developers Agreement shall provide
that the Developer will pay the costs
of all on-site public improvements
necessary for the project to proceed;
and further that the developer shall
bear its fair share of the costs of
off-site public improvements necessary
for the Project to proceed, as
determined in the feasibility study
12.
.
.
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prepared by the City Engineer. This
Conditional Use Permit approval is
specifically contingent upon Developer
agreeing in the Developers Agreement
to so pay its share of on-site and
off-site public improvement costs.
4.
The Developers Agreement shall provide
that Developer will construct, or
cause to be constructed by petition,
all on-site or off-site public
improvements which the City Engineer
shall deem necessary for development
of the Project to proceed.
5.
The Developers Agreement shall also
provide for Developer's compliance
with the other requirements of the
City Code of Ordinances for
preliminary and final plat approval,
including park dedication, etc.
D.
6. The Developers Agreement shall be
approved by the City Council prior to
approval of the final plat for the
Project. Amendments to the Developers
Agreement shall also be approved by
the City Council.
Site Plan Approvals.
1. Following approval by the City Council
of the PUD Agreement and the
Developers Agreement, the City Council
will consider site plan approval for
Phase I of the Project.
2. Developer shall commence the site plan
approval process by filing an
application therefor with City staff.
This application shall include such
plans and supporting materials as City
staff shall require.
3. Site plan approval shall be required
for each phase of the Project, and for
any substantive amendment to any
previously approved phase of the
Project, prior to obtaining a building
permit.
4.
Each site plan approval request shall
be reviewed by the Planning Commission
and City Council and a public hearing
held thereon before approval.
13.
.
Site plan approval shall be granted to
a particular phase of the Project, or
amendment thereto, only if the City
Council finds that the proposed site
plan is consistent with the terms and
conditions of this Conditional Use
Permit, the PUD Agreement (including
all plans incorporated therein), and
the Developers Agreement.
6. The City Council may, when approving
individual site plans, impose such
conditions as it shall deem necessary
to ensure that the Project complies
with the requirements of this
Conditional Use Permit approval and
the City Code of Ordinances.
5.
E. Special Conditions.
.
1. The Conditional Use Permit for the
Project is contingent upon preliminary
and final plat being approved by the
City Council.
2.
A security fence shall be provided
around alL storm drainage ponds as
determined by the City Council to
provide for public safety.
3. The appropriate permits shall be
obtained from the Minnesota Department
of Transportation authorizing the
necessary grading and improvements for
right-injright-out access off
Highway 169.
4. All storm drainage ponds shall be
designed in accordance with the Best
Management Practice guidelines. This
calls for a 4:1 side slopes above the
static water level with a bench area
of approximately 10:1 at the water
level and 3:1 beneath the standing
water level.
5.
.
The Developer shall indemnify and hold
the City harmless from any claim from
the owner or operator of the Burger
King facility located at Highway 169
and School Street related to loss of
access due to a median being
constructed down the middle of School
Street.
14.
. ")
.
.
.
Approval of this Conditional Use
Permit is also specifically contingent
upon developer complying with such
other conditions as the City Council
shall require for approval of the
preliminary and final plats, the PUD
Agreement, the Developers Agreement
and the site plan(s) for any phase.
7. A bike path shall be provided along
Jackson Road from School Street to
Highway 169, as approved by the City
Council.
6.
8. The Developers Agreement shall require
Developer to pay its fair share of the
costs for a new intersection on
Highway 169, if and when MnDOT
approves such an intersection.
Passed and adopted by the City Council of the City of Elk River
this 2..Q.th... day of Decp-rnbf'T , 1993.
ATTEST:
~Cl~
Sandra A. Thackeray, City Clerk
~
Mayor
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CITY OF ELK RIVER
CITY COUNCIL
RESOLUTION NO. 94 - 9
A RESOLUTION GRANTING PRELIMINARY PLAT APPROVAL
FOR ELK PARK CENTER
WHEREAS, Elk River Associates, Ltd., together with Kraus Anderson
Construction Company (the Developers) have applied for
preliminary plat approval pursuant to the Elk River City
Code of Ordinances for the property legally described on
attached Exhibit A hereto (the Property); and
WHEREAS, the application for preliminary plat approval has been
referred to the Planning Commission which has given its
advice and recommendation to the City Council; and
WHEREAS, the City Council of the City of Elk River, pursuant to
Resolution No. 93-81, has approved a Conditional Use
Permit for development of a shopping center on the
Property, subject to a number of conditions, including
approval of the preliminary plat; and
WHEREAS, the proposed preliminary plat complies with the conditions
set forth in Resolution No. 93-81 and with the relevant
provisions of the City Code of Ordinances;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Elk River, as follows:
1. It is hereby determined by the City Council for
the City of Elk River as follows:
A. The recitals and findings set forth in
Resolution No. 93-81, approving a
Conditional Use Permit for the Property are
hereby adopted and incorporated by
reference in this Resolution approving a
preliminary plat for the Property.
B. The proposed subdivision is consistent with
the zoning ordinance and conforms with all
of its requirements.
C. The proposed subdivision is consistent with
all applicable general and specialized
city, county and regional plans including,
but not limited to, the City's
Comprehensive Development Plan.
j
D.
The physical characteristics of the
Property are suitable for the development
and uses contemplated.
E.
The proposed subdivision makes adequate
provision for water supply, storm drainage,
sewage transportation, erosion control and
all other services, facilities and
improvements otherwise required herein.
F. The proposed subdivision will not cause
substantial environmental damage.
G. The proposed subdivision will not conflict
with easements of record or with easements
established by judgment of a court.
H. The proposed subdivision will not have an
undue or adverse impact on the reasonable
development of neighboring land.
2. Preliminary plat approval is hereby granted for
the Property, subject to the following
conditions:
A.
i
B.
Lot 1, Block 1 shall be revised to provide
additional right-of-way to 193rd Avenue for
appropriate street improvements.
Outlot C shall be eliminated and made part
of Lot 1, Block 4.
C. A Planned Unit Development Agreement and a
Developer'S Agreement shall be prepared and
executed prior to releasing the final plat
for recording, as required by Resolution
No. 93-81.
D. PaYment of park dedication fees shall be
made at the time of final plat approval, in
an amount based on the City's commercial
park dedication rate.
E. Appropriate cross-access/cross-parking
agreements shall be approved by the City
and recorded with the final plat to
accommodate shared parking arrangements.
F.
,
All storm drainage ponds, utility lines and
other pertinent public infrastructure
elements shall have easements placed over
them, granted to the City of Elk River,
which easements shall be recorded with the
final plat.
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G.
Easement documents granting to the City of
Elk River Freeport Avenue from School
Street to the limits of the plat and the
drainage and utility easement immediately
south of the plat on school property shall
be approved by the City and recorded with
the final plat.
H. Prior to final plat review by the City
Council, an administrative subdivision of
the Dickinson property must be completed
and recorded.
I. Outlot A shall be deeded to the City of Elk
River.
J. All other conditions set forth in
Resolution No. 93-81, granting approval of
a Conditional Use Permit for the Property,
are hereby incorporated by reference in
this Resolution approving a preliminary
plat for the Property.
K. Outlot B be replaced with a drainage and
utility easement to encompass the storm
drainage pond and be made part of Lot 7.
3.
This preliminary plat approval shall expire one
(1) year from the date of this Resolution,
unless extended by resolution of the City
Council.
Passed and adopted by the City Council of the City of Elk River
this 7th day of February ,1994.
ATTEST:
Mayor
3.
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PLANNED UNIT DEVELOPMENT AGREEMENT
FOR
ELK PARK CENTER
THIS PLANNED UNIT DEVELOPMENT AGREEMENT (POD Agreement), made
and entered into this ____ day of
, 1994, by and
between the CITY OF ELK RIVER, a municipal corporation organized
under the laws of the State of Minnesota (the ~ity) and ELK PARK
CENTER LIMITED PARTNERSHIP, a Minnesota Limited Partnership (the
Developer);
WITNESSETH:
WHEREAS, Developer has made application to City for approval of
a Conditional Use Permit to develop a shopping center (the Project)
as a Planned Unit Development, pursuant to Sections 900.12(15) and
900.42 of the Elk River City Code of Ordinances, on certain
property located within the City and described on Exhibit A
attached hereto (the Subdivision); and
WHEREAS, the City Council of the City of Elk River (the City
Council) adopted Resolution No. 93-81 (attached as Exhibit B
hereto) on December 20, 1993, approving a Conditional Use Permit
for the project, subject to a number of conditions; and
WHEREAS, one of the conditions of the approval of the
Conditional Use Permit is that Developer enter into a Planned Unit
Development Agreement (POD Agreement) with City to be approved by
the City Council; and
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WHEREAS, the purposes of the PUD Agreement are to set forth the
standards, uses and procedures for development of the Project as a
Planned Unit Development;
NOW, THEREFORE, in consideration of the p~emises and the mutual
promises and conditions hereafter contained, it is hereby agreed as
follows:
1.) Warranty of Developer - Developer hereby warrants and
represents to City, as inducement to City's entering into this
PUD Agreement, that Developer is the fee owner of all of the
properties located within the Subdivision. Developer further
represents that it intends to sell some of the parcels within
the Subdivision to third parties unrelated to Developer or its
partners (Third Parties). This Agreement shall be binding on
Third Parties.
2.} Development - The Project shall be developed in
accordance with the following plans attached as exhibits
hereto, as the same may be amended as a part of the Site Plan
approval process or as an amendment to the Conditional Use
Permit for the Project, subject to obtaining site plan approval
for each parcel within the Subdivision as provided by this PUD
Agreement:
Exhibit C - Site Plan
Exhibit D - Landscape Plan
Exhibit E - Grading Plan
Exhibit F - Setback Plan
Exhibit G - Sign Plan
Exhibit H - Development Standards, including:
o Architectural Theme, including Building
Materials
o Operational Performance Standards, including
Hours of Operation
3.} ~-
(01) Permitted Uses - The following permitted uses in the
C-3, Highway Commercial District shall be allowed as
permitted uses within the Project, subject to the approval
process set forth in paragraph 4:
Governmental, business and professional offices
Retail shops and stores
Personal service establishments
Financial Institutions
Convenience stores
Indoor Nurseries (plants)
Restaurants (Class I and II), provided they do not
offer live entertainment
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(02) Conditional Uses -
(a) The following uses shall be allowed as
conditional uses within the project:
licensed day care facilities
educational uses
motor vehicle service stations and specialty
shops
car washeS
open sales lots, excluding sales of vehicles
non-profit clubs, lodges or halls
restaurants with live entertainment
on-sale liquor establishments
veterinary clinics
zero lot line development
two or more buildings on same lot
(b) In addition to the approval process set forth in
paragraph 4 hereof, a Conditional Use Permit
shall be applied for and approved, pursuant to
the Elk River zoning Ordinance, for any
conditional use in the project. Each such
conditional use shall be considered and acted
upon by the City Council pursuant to the
standards set forth in the Zoning Ordinance for
conditional uses, as well as the standards and
requirements set forth in this PUD Agreement and
the attachments hereto.
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(c) A~proval by City - City hereby approves the Project as
shown in the attached exhibits provided, however, that insofar
as the exhibits vary from the written terms of this PUD
Agreement, the written terms shall govern. This approval is
subject to individual site and building plan review and
approval as follows:
(01) Site plan approval shall be required prior to
issuance of a building permit for any lot within the
project, both for initial construction and for any
subsequent expansion, exterior remodeling of a structure or
substantial revision of an approved site plan.
(02) Each site plan approval request shall be accompanied
by such plans and supporting materials as City staff shall
require, and shall be reviewed by the Planning Commission
and City Council in a public hearing held thereon before
approval.
(03) Site plan approval shall be granted only if the City
Council finds that the proposed site plan is consistent
with the terms and conditions of the Conditional Use Permit
for the project, this PUD Agreement, applicable City
Ordinance requirements and all other legal requirements.
3.
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City reserves the right to refuse approval of an individual
site plan if, in the City Council's judgment, this
condition is not met.
(04) The City Council may, when approving individual site
plans, impose such conditions as it shall deem necessary to
insure that the Project complies with the requirements of
this POD Agreement, as amended from time to time, the
Conditional Use Permit, as amended from time to time, and
the City Code of Ordinances.
5.) Public Improvements - Public Improvements for the
project shall be installed and paid for as provided by the
terms of the Developer's Agreement entered into between
Developer and City, and attached as Exhibit I to this POD
Agreement. Any violation by Developer of the terms of the
Developer's Agreement shall be a violation of this PUD
Agreement, and shall be grounds for City invoking against
Developer the remedies provided by this PUD Agreement,
including denial of site plan review or approval for one or
more of the lots in the project.
6.) Maintenance of Areas of Joint Use - Developer shall
provide evidence of satisfactory provision for control and
maintenance of jointly used or commonly owned parking, drainage
and landscaped areas within the Project. Reciprocal parking
and access easements and maintenance agreements shall be
provided to and approved by the City Attorney prior to the
issuance of certificates of occupancy so as to insure
satisfactory control, ownership and maintenance. Developers
and their successors shall be obligated to maintain all common
areas, drainage areas, outlots and landscaping in the Project
in perpetuity. Notwithstanding any limitation in paragraph 7
hereof, a failure to meet this obligation will be grounds for
City to invoke any remedy of City under this PUD Agreement
against Developer or a Third Party, even if Developer or the
Third Party affected is not the owner of the parcel not so
properly maintained.
7.) Remedies - Should Developer or a Third Party breach
any of the terms and conditions of this PUD Agreement, and if
such breach is not cured within thirty (30) days after written
notice or if such cure shall reasonably require longer than
thirty (30) days to cure within such longer period as shall be
reasonably necessary to cure such breach provided Developer
commences cure within such thirty (30) day period and
diligently proceeds to cure such breach thereafter, City shall
have any or all of the following remedies against the party who
has breached:
(01) Withhold site plan approval for undeveloped lots;
(02) Withhold issuance of building permits or certificates
of occupancy for any structure within the project;
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(03) Halt construction on public improvements not
commenced or not completed;
(04) Institute prosecution of Developer or the Third Party
under the relevant provisions of the City Zoning Ordinance;
(05) Draw upon any financial security provided the City to
assure compliance;
(06) Institute a civil action to compel compliance or
recover damages or both. .
8.) Additional Specific Conditions - The conditions set
forth in Resolution No. 93-81 approving the Conditional Use
Permit for the Project are specifically incorporated into this
PUD Agreement and made a part hereof. Violation of any of the
conditions set forth in Resolution No. 93-81 shall be a
violation of the terms of this PUD Agreement.
9.) General Conditions - If Developer or a Third Party
fails to comply with any of the provisions hereof, City may
refuse to issue to the Party in breach a building permit or
certificate of occupancy for any lot or parcel in the Project.
Developer agrees to advise purchasers of any lot or parcel
within the Subdivision of the existence of this PUD Agreement
and the obligations and restrictions created herein prior to
the completion of a sale. Further, Developer agrees to save
and hold City harmless from any and all claims or actions
arising from the right to withhold the issuance of such permits
and certificates and from other provisions hereof. .
10.) Binding Effect - The terms and provisions hereof shall
be binding upon and inure to the benefit of the heirs,
representatives, successors and assigns of the parties hereto
and shall be binding upon all Third Parties or other future
owners of all or any part of the Project, and shall be deemed
covenants running with the land. This agreement shall be
placed of record so as to give notice hereof to subsequent
purchasers and encumbrances of all or any part of the project,
and all recording fees, if any, shall be paid by Developer.
11.) Severable - In the event that any portion of this PUD
Agreement shall be held invalid for any reason, the same shall
not affect in any respect whatsoever the validity of the
remainder of this PUD Agreement.
12.) Waiver - Any waiver, whether express or implied, by
any party of a breach of any provision of this Agreement, will
not operate as or be construed to be a waiver of any subsequent
breach of this Agreement.
13.) Notices - All notices and demands sp~cified herein
shall be deemed appropriately and timely given when delivered
~ personally or deposited in the United States Mail to the
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addresses hereinafter set forth by certified mail (return
receipt requested). The addresses of the parties hereto are as
follows until changed by written notice given as above:
If to the City at:
City of Elk River
Attn: City Administrator
P.O. Box 490
13065 Orono Parkway
Elk River, Minnesota 55330
If to the Developer at:
14.) Incorporation by Reference - All plans, special
provisions, proposals, specifications and contracts made or to
be made pursuant to this PUD Agreement shall be and hereby are
made a part of this PUD Agreement by reference as fully as if
set forth herein in full.
15.) Entire Agreement - This PUD Agreement, together with
the exhibits attached hereto, sets forth the entire
understanding between the parties, there being no terms,
conditions, warranties or representations other than those
contained herein, including the exhibits hereto, and no
amendments hereto shall be valid unless made in writing and
signed by all the parties hereto.
IN WITNESS WHEREOF, the City and Developer'have caused this POD
Agreement to be duly executed on the day and year first above
written.
. CITY OF ELK RIVER
By:
Henry A. Duitsman
Its: Mayor
By:
Patrick D. Klaers
Its: City Administrator
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DEVBLOPBR:
BLK PARK CENTBR LIMITED
PARTNBRSHIP
BY: KRAUS ANDERSON OF ELK RIVER, IN .
Its General Partner
By:
Burton Dahlberg
Its: President
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CITY OF ELK RIVER
CITY COUNCIL
RESOLUTION NO. 93 - 81
A RESOLUTION MAKING FINDINGS OF FACT REGARDING THE ELK PARK CENTER
PROPOSAL, APPROVING A CONDITIONAL USE PERMIT FOR ELK PARK CENTER,
AND SETTING FORTH THE CONDITIONS FOR ISSUANCE OF A CONDITIONAL USE
PERMIT FOR ELK PARK CENTER
WHEREAS, Elk River Associates, Ltd., together with Kraus Anderson,
Incorporated (the Developers) have applied for a
Conditional Use Permit to develop a shopping center (the
Project) on certain property located north of the School
District property between Jackson Avenue and Highway 169
(the Property); and
WHEREAS, the City Council, on September 31, 1991, and June 15,
1992, took action to rezone the Property to Planned Unit
Development and designate the Property for Highway
Business Uses on the City's Comprehensive Land Use map;
and
WHEREAS, pursuant to Sections 900.12(15) and 900.42 of the Elk
River City Code of Ordinances, a Conditional Use Permit
and preliminary plat approval must be obtained to develop
the Property as proposed by Developers;" and
~~EREAS, an application for a Conditional Use Permit and
Preliminary Plat approval was submitted to the City in
July 1992; and
WHEREAS, a public hearing was held on this application before the
Elk River Planning Commission on August 25, 1992, at which
time the Planning Commission heard a presentation on the
Project, took testimony from all those present who asked
to speak on the matter, and continued action on the
application due to a lack of sufficient information; and
w~EREAS, the Developers subsequently submitted additional
information and a second public hearing was held before
the Elk River Planning Commission on June 10, 1993, at
which time the Planning Commission heard a presentation on
the Project, took testimony from all those present who
asked to speak on the matter, and the application was
continued again for lack of sufficient information; and
WHEREAS, the Developers subsequently revised the site plan for the
Project and submitted additional information in support of
the application for a Conditional Use Permit and
preliminary plat approval; and
.
WHEREAS, the Elk River Planning Commission held a public hearing on
the revised site plan on October 19, 1993, at which time
the Planning Commission heard a presentation on the
Project and received testimony from all those present who
asked to speak on the matter; and
WHEREAS, the Planning Commission, at its meeting on October 19,
1993, recommended approval of the Conditional Use Permit
and Preliminary Plat subject to a number of conditions;
and
WHEREAS, the City Council held a public hearing on the application
for a Conditional Use Permit and Preliminary Plat on
October 26, 1993, at which time the City Council heard a
presentation on the Project and took testimony from all
those present who asked to speak on the matter; and
WHEREAS, the City Council also received a number of written
comments on the Project both before and at the public
hearing held on October 26, 1993; and
WHEREAS, the City Council, at the close of the public hearing on
October 26, 1993, identified a number of concerns and
issues with the proposed project; and
.
WHEREAS, the City Council, following the public hearing and Council
discussion of the Project on October 26, 1993, adopted
motions denying the Conditional Use Permit and Preliminary
Plat for Elk Park Center; and
WHEREAS, the motions to deny were subsequently amended by separate
motions of the City Council on October 26, 1993, which
motions rescinded the denials of the Conditional Use
Permit and Preliminary Plat and directed City staff to
prepare Findings of Fact in a Resolution of Denial of the
Conditional Use Permit and Preliminary Plat, for
consideration by the City Council on November 15, 1993;
and
WHEREAS, City staff subsequently prepared a proposed "Resolution
Making Findings of Fact Regarding the Elk Park Center
Proposal and Denying a Conditional Use Permit and
Preliminary Plat Approval for Elk Park Center" for
consideration by the City Council, which resolution
identified 12 reasons for denial of the Conditional Use
Permit and Preliminary Plat; and
WHEREAS, the City Council reviewed and considered the proposed
Resolution for Denial at its regularly scheduled meeting
of November 15, 1993 and took the following actions:
o
The Council amended Section C.3. of the proposed
Resolution of Denial regarding enclosure of the
holding ponding area;
e
2.
.)
.
e
o
The Council called a special meeting of the City
Council for December 13, 1993, and continued any
action on the proposed Resolution of Denial until
that meetingj
o
The Council directed staff to advertise a public
hearing for the December 13, 1993, meeting to allow
citizens to express their opinions on any revisions
or new information to be presented on the Conditional
Use Permit and Preliminary Platj
o
The Council directed staff to work with the
Developers to address the issues identified in the
proposed Resolution of Denialj
o
The Council directed staff to prepare a feasibility
study prior to December 13, 1993, addressing the
traffic and drainage issues related to the proposed
projectj and
WHEREAS, on November 22, 1993, a Work Session on Elk Park Center
was held to identify specific traffic and drainage issues
to be addressed by the City Engineer in the Feasibility
StudYj and
WHEREAS, this Work Session was attended by.theCity Council, City
staff, and representatives of the Developers and the
Citizens Who Care organizationj and
WHEREAS, the Developer subsequently submitted a revised site plan
addressing the issues identified in the Resolution of
Denialj and
WHEREAS, the City Council, on December 13, 1993, held a public
hearing on the revised site plan submitted by the
Developer, at which time:
o
City staff reviewed the revisions to the site planj
o
the City Engineer presented his feasibility study on
the drainage and traffic issues identified by the
City Council as major concernSj
the Developer addressed the 12 grounds for denial set
forth in the proposed Resolution of Denialj and
WHEREAS, the public hearing on December 13, 1993, was properly
noticed as a public hearing on the Project and the City
Council received testimony from all those present who
asked to speak on the matterj and
o
3.
.
.
.
WHEREAS, following the presentations from staff and the Developer,
and the testimony received from the public, the City
Council discussed the proposed project and the grounds for
denial set forth in the Resolution of Denial; and
WHEREAS, at the close of its discussion on December 13, 1993, the
City Council determined to take no action on the proposed
Resolution of Denial, and directed City staff to prepare a
Resolution of Approval of the Project, setting forth the
grounds for approval and all conditions of approval, for
consideration by the City Council at its regularly
scheduled meeting on December 20, 1993; and
WHEREAS, in its lengthy consideration of this Project the City
Council has reviewed all of the written materials
submitted by the Developers, the staff and the public
before and during the public hearings held on this matter,
and has considered the recommendation of the Planning
Commission and the testimony received at the public
hearings on October 26, 1993, and December 13, 1993; and
WHEREAS, the Zoning Ordinance of the City of Elk River sets forth
in Section 900.42(4) seven criteria for the issuance of a
Conditional Use Permit;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Elk River makes the following findings, and approves a
Conditional Use Permit for Elk Park Center, subject to the
conditions set forth herein:
I. FINDINGS
A. Specific Findings on the Issues Set Forth in
Resolution of Denial
1. Drainage. The revised plan conforms to City
standards and requirements by providing that all
drainage for the Project will be accommodated on
site.
2. Traffic.
o
Access from Highway 169.
The Developers have fully investigated the
possibility of obtaining full access to the
Project from Highway 169. The Minnesota
Department of Transportation analysis, as
well as the City Engineer's analysis, is
that full access from Highway 169 is not
necessary at this time. The existing
intersections on Highway 169 will handle
the traffic anticipated from this project.
The Minnesota Department of Transportation
4.
.
'.
.
has indicated a willingness to look at
other solutions if levels of service
deteriorate at the existing intersections
on Highway 169.
o
Highway 169/School Street Intersection.
The City Engineer's feasibility study has
addressed how the impacts on this
intersection can be mitigated.
o
School Street and Freeport Avenue
Intersection.
The City Engineer's feasibility study
illustrates how this intersection can be
designed to manage traffic to and from the
Project.
o
School Street. from Highway 169 to Jackson.
The City Engineer's =easibility study
indicates that proposed traffic
improvements on School Street will maintain
full access to Parker School. Although
Burger King will lose direct left-in, left-
out access from School Street, access will
continue to be available via School Street
to Freeport and into Burger King off
Freeport.
o
Jackson Avenue.
The Developers have eliminated the access
off of Jackson into Taco Bell and have
added a secondary access to the Project off
of Jackson Avenue. This access will reduce
the impacts of traffic from the Project on
the intersections of Jackson/Highland and
Jackson/Freeport, as well as reducing
traffic on School Street.
o
Highland Road.
The City Engineer's feasibility study
indicates that increased traffic on
Highland Road will be within acceptable
levels.
o
Highway 10 Traffic.
The City Engineer's feasibility study
indicates that traffic traveling to and
from the Project from Highway 10 will
5.
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.
B.
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increase existing volumes only
approximately 3% to 6%, which is an
imperceptible increase.
3.
Public Health and Safety.
o
Impact on schools.
Although the project will increase traffic
along School Street, the new access to the
Project off Jackson Avenue will reduce
traffic levels on School Street.
Furthermore, new signals at School Street
and Freeport will improve safety for
children who need to cross School Street.
The City Engineer has discussed the
increased traffic levels and proposed
redesign of School Street with the School
District. The School District has not
indicated that the increased traffic or
redesign will present any unreasonable
danger to school children.
o
Air Ouality.
The Minnesota Pollution Control Agency
(MPCA), in its review of the Environmental
Assessment Worksheet for the Project, has
not indicated any concern regarding air
quality in the area surrounding the
Project. Air quality will be looked at in
detail when the Developers apply for an
Indirect Source Permit from the MPCA.
o
Holding Pond.
The Developers have proposed a one-inch
mesh fence around the proposed holding pond
which will be very difficult for children
to climb over.
o
Neighboring Property.
Increased traffic from the Project will
have an impact on neighboring properties.
However, revisions to the Plan, such as the
new access off of Jackson Avenue, will
reduce these impacts to the point where the
Project will not unreasonably affect
neighboring property.
Specific Findings on the Standards for Issuance of a
Conditional Use Permit.
6.
.
The City Council of the City of Elk River finds that
the Elk Park Center Project:
1. Will not endanger, injure or detrimentally
affect the use and enjoYment of other property
in the immediate vicinity or the public health,
safety, morals, comfort, convenience or general
welfare of the neighborhood or the City.
This Project will bring increased traffic
to the City of Elk River and in particular
to the area surrounding the proposed
Project. However, it is the City Council's
judgment that this traffic will not
endanger, injure or detrimentally affect
the use or enjoYment of other property.
The increased tax base and additional
services which the Project will provide the
community result in a substantial net
benefit to the City, including the
immediate surrounding area, from the
Project.
Will be consistent with the Comprehensive Plan.
2.
.
The City's Comprehensive Plan designates
this property for Highway Business uses,
which the Project proposes.
3 .
Will not impede the normal and orderly
development and improvement of surrounding
vacant property.
The Project will have no negative impacts
on the development of surrounding property;
and will have a positive benefit by helping
fund the extension of public utilities
which will serve surrounding properties.
4.
Will be served adequately by and will not
adversely affect essential public facilities.
.
The Project can be served by existing and
proposed public utilities, and will help
fund the extension of public utilities
which will benefit and contribute to the
development and growth of residential and
commercial property in the City. Off-site
traffic impacts of the Project will be
managed by the redesign of surrounding
roads as necessary to ensure that the
Project will not create traffic congestion
or interference with traffic on adjacent
and neighboring public thoroughfares.
7.
e)
.
5.
Will not be detrimental to other persons or
property.
This Project has been carefully designed,
and the impacts of traffic on surrounding
streets carefully studied, to ensure that
the Project will not detrimentally impact
other persons or property.
6. Will not result in the destruction, loss or
damage of any natural, scenic or historic
feature of major importance.
7.
The Environmental Assessment Worksheet
(EAW) for this Project, which has been
approved by the City Council, did not
identify any scenic or historic feature of
major importance on the site of the
proposed project.
Will fully comply with all other requirements of
the City's Code of Ordinances.
Following approval of a Conditional Use
Permit for this Project, the Developer will
be required to enter into a Development
Agreement and Planned Unit Development
Agreement. These agreements will ensure
that the Developer and the Project will
fully comply with all requirements of the
City's Code.
C. General Findings.
In addition to the specific findings set forth above,
the City Council further finds that the Project meets
the standards for issuance of a Conditional Use
Permit for all of the reasons stated by the City
Council, the Planning Commission and the public
during the October 19, October 26, and December 13,
1993, public hearings on the Project, including, but
not limited to:
o
o
e
The plan revisions presented on December 13,
1993, have significantly reduced the off-site
impacts of the Project and made the Project
considerably better than when it was presented
to the City Council in October.
The revised plans and new information submitted
on December 13, 1993, have addressed all of the
major issues with this Project.
8.
II.
-
III.
e
e
Decision.
It is the determination of the City Council of the
City of Elk River, for the reasons set forth above,
that the Developer has met the requirements for the
issuance of a Conditional Use Permit. Therefore, the
City Council hereby approves a Conditional Use Permit
for the Project, subject to the conditions set forth
below.
The Conditional Use Permit for Elk Park Center is
contingent upon the Developer complying with the
following conditions.
A. Plat Approval
1. Approval of the Conditional Use Permit is
contingent upon the Developer submitting
and the City Council approving a revised
Preliminary Plat which conforms to the
conditions of this Conditional Use Permit
approval, including the recommendations of
the City Planner and the City Engineer as
set forth during the December 13, 1993,
public hearing.
2.
The revised Preliminary Plat will be
considered by the City Council at a future
date, and will be approved subject to such
conditions as the Council shall deem
appropriate.
3. Final plat approval for the Project will
not be granted until the Developer has
entered into a Planned Unit Development
Agreement and Developers Agreement as
required by the conditions of this
Conditional Use Permit approval.
B. Planned Unit Developme~t Agreement.
1. Approval of the Conditional Use Permit is
contingent upon a Planned Unit Development
Agreement (PUD Agreement) being entered
into between the Developer and the City
outlining the standards, uses, and
procedures for development within the Elk
Park Center PUD.
2. The Developer shall submit the following
materials, which the City shall use to
prepare a PUD Agreement:
9 .
.
.
.
o
A proposed "Development Plan" for the
Project. The Development Plan will
provide the foundation for future site
plan reviews and shall include the
following elements:
o
A Site Plan for the Project which
incorporates all of the plan
revisions submitted to the City
Council and all of the conditions
for approval imposed by the City
Council.
o
A Landscaping Plan for the entire
Project. The Landscaping Plan
should include a landscaping
theme and demonstrate landscaping
continuity for the entire
Project.
o
A Grading Plan for the entire
Project. The Grading Plan shall
include tree protection measures
to preserve as many of the
existing trees as possible,
particularly along Jackson Road,
to provide maximum screening to
the residential areas.towards the
west. The grading plan shall
also provide for extensive
berming along Jackson Road and
Freeport Avenue. The Plan shall
show berms along Freeport Avenue
and appropriate berming along
Jackson Road to screen loading
facilities from the residential
areas towards the west.
o
A Setback Plan showing minimum
setbacks for each proposed
building in the Project.
A complete Sign Plan for the
entire Project outlining the
types and sizes of signs. The
Sign Plan shall also be
incorporated into the PUD
Agreement.
o
o
A written narrative of
Development Standards which shall
set forth and describe:
10.
.
(1) the architectural theme for
the Project, which shall be
carried out through the
entire Project and
incorporated into the PUD
Agreement;
(2) the proposed building
materials for the Project
which shall, at a minimum,
consist of a combination of
decorative rock face block,
face brick, decorative and
glazed concrete block, and
prefinished metal materials;
(3) the proposed permitted and
conditional uses within the
Project are~;
(4) the proposed operational
performance standards for
the Project, including hours
of operation, etc.; and
.
(5) such other development
standards for the Project as
the Developer shall propose.
3. The Planned Unit Development Agreement
will be prepared by City staff, in
consultation with the Developer, based
upon the materials submitted by the
Developer, the feasibility report
prepared by the City Engineer, and the
conditions of approval of the
Conditional Use Permit as set forth in
this resolution of approval.
4. The Planned Unit Development Agreement
shall include and incorporate the
following:
o
The Project Development Plan,
including:
o
Site Plan
o
Landscaping Plan
o
Grading Plan
.
11.
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. "":
.
o Setback Plan
o
Sign Plan
o
The development standards for the
Project, including:
o
permitted and conditional
uses
o
permitted building materials
o
operation requirements and
restraints
o
such other development
standards as the City
Council shall require.
5.
The Planned Unit Development Agreement
shall be approved by the City Council.
Amendments to the PUD Agreement,
including amendments to the plans
incorporated in the PUD Agreement,
shall also be approved by the City
Council.
"
C.
Developers Agreement
1. A Developers Agreement shall be
prepared and executed outlining the
terms and conditions for approval of
the Preliminary Plat for the Project,
including the on-site and off-site
infrastructure improvements that will
be required for development of the
Project.
...
2. Prior to execution of the Developers
Agreement, a complete feasibility
report shall be prepared by the City
Engineer specifying the necessary on-
site and off-site improvements
relating to the Project.
3.
The Developers Agreement shall provide
that the Developer will pay the costs
of all on-site public improvements
necessary for the project to proceed;
and further that the developer shall
bear its fair share of the costs of
off-site public improvements necessary
for the Project to proceed, as
determined in the feasibility study
12.
.
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.
prepared by the City Engineer. This
Conditional Use Permit approval is
specifically contingent upon Developer
agreeing in the Developers Agreement
to so pay its share of on-site and
off-site public improvement costs.
4.
The Developers Agreement shall provide
that Developer will construct, or
cause to be constructed by petition,
all on-site or off-site public
improvements which the City Engineer
shall deem necessary for development
of the Project to proceed.
5.
The Developers Agreement shall also
provide for Developer's compliance
with the other requirements of the
City Code of Ordinances for
preliminary and final plat approval,
including park dedication, etc.
D.
6. The Developers Agreement shall be
approved by the City Council prior to
approval of the final plat for the
Project. Amendments to the Developers
Agreement shall also be approved by
the City Council.
Site Plan Approvals.
1. Following approval by the City Council
of the PUD Agreement and the
Developers Agreement, the City Council
will consider site plan approval for
Phase I of the Project.
2. Developer shall commence the site plan
approval process by filing an
application therefor with City staff.
This application shall include such
plans and supporting materials as City
staff shall require.
3. Site plan approval shall be required
for each phase of the Project, and for
any substantive amendment to any
previously approved phase of the
Project, prior to obtaining a building
permit.
4.
Each site plan approval request shall
be reviewed by the Planning Commission
and City Council and a public hearing
held thereon before approval.
13.
.
5.
Site plan approval shall be granted to
a particular phase of the Project, or
amendment thereto, only if the City
Council finds that the proposed site
plan is consistent with the terms and
conditions of this Conditional Use
Permit, the PUD Agreement (including
all plans incorporated therein), and
the Developers Agreement.
6. The City Council may, when approving
individual site plans, impose such
conditions as it shall deem necessary
to ensure that the Project complies
with the requirements of this
Conditional Use Permit approval and
the City Code of Ordinances.
E. Special Conditions.
1. The Conditional Use Permit for the
Project is contingent upon preliminary
and final plat being approved by the
City Council.
A security fence shall be provided
around all storm drainage ponds as
determined by the City Council to
provide for public safety.
3. The appropriate permits shall be
obtained from the Minnesota Department
of Transportation authorizing the
necessary grading and improvements for
right-injright-out access off
Highway 169.
2.
.
4. All storm drainage ponds shall be
designed in accordance with the Best
Management Practice guidelines. This
calls for a 4:1 side slopes above the
static water level with a bench area
of approximately 10:1 at the water
level and 3:1 beneath the standing
water level.
5.
.
The Developer shall indemnify and hold
the City harmless from any claim from
the owner or operator of the Burger
King facility located at Highway 169
and School Street related to loss of
access due to a median being
constructed down the middle of School
Street.
14.
.
I......,.,...
. ...-!<
.
Approval of this Conditional Use
Permit is also specifically contingent
upon developer complying with such
other conditions as the City Council
shall require for approval of the
preliminary and final plats, the PUD
Agreement, the Developers Agreement
and the site plan(s) for any phase.
7. A bike path shall be provided along
Jackson Road from School Street to
Highway 169, as approved by the City
Council.
6.
8. The Developers Agreement shall require
Developer to pay its fair share of the
costs for a new intersection on
Highway 169, if and when MnDOT
approves such an intersection.
Passed and adopted by the City Council of the City of Elk River
this 2..Q..th... day of Dec~mhpr , 1993.
ATTEST:
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