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HomeMy WebLinkAboutItem 10L eville May 3, 2013 HOPPE MARKETPLACE 3 RD ADDITION MAY 6, 2013 CITY COUNCIL MEETING Item No. Proposed Action Staff recommends adoption of the following motion: Move to approve: 1) a resolution approving the preliminary and final plat of Hoppe Marketplace 3'd Addition and. 2) a resolution vacating public drainage and utility easements. Overview Representatives of United Properties Investments, LLC have submitted applications for a preliminary and final plat and the vacation of public drainage and utility easements for the development of two commercial lots on 1.72 acres. The subject property is currently platted as Lot 2, Block 1, Hoppe Marketplace 2 Addition and is zoned PUD, Planned Unit Development. The underlying zoning of the property is C -3, General Commercial District. The property is located east of Kenwood Trail (CSAH 50) and south of Jubilee Way. An Advance Auto Parts store is proposed to be constructed on one of the lots. The Planning Commission held a public hearing for consideration of the preliminary and final plat and easement vacation at their April 18, 2013 meeting. There was public comment at the public hearing from a business owner and a property owner located east of the subject property. On a 6- 1 vote, the Planning Commission recommended approval of the preliminary and final plat and easement vacation subject to four stipulations. Primary Issues To Consider (See separate sheet attached) Supporting Information 0 Staff analysis of primary issues to consider 0 Resolution approving the preliminary and final plat 0 Resolution vacating public drainage and utility easements. 0 Signed development contract 0 April 29, 2013 letter from attorney representing Second Pointe, LLC 0 May 2, 2013 letter from City Attorney Roger Knutson 0 April 18, 2013 draft Planning Commission meeting minutes. 0 April 17, 2013 draft Parks, Recreation and Natural Resources Committee meeting minutes 0 April 12, 2 planning and engineering reports. Frank Dempsey, AICP, Associate P nner Financial Impact: $ None Budgeted: Y/N Source: Related Documents (CIP, ERP, etc.): Zoning and Subdivision Ordinance: Notes: Primary Issues to Consider Are the issues raised in the April 4 and 29, 2013 letters from the attorney representing Second Pointe, LLC (owner of the Remax building) reason to deny the Hoppe Marketplace 3,d Addition preliminary and final plat? The letters from the Second Pointe LLC attorney raise issues about the proposed use of the subject property being restricted to a high -end sit down restaurant and about enforcement of a private Reciprocal Easement and Operation Agreement (REOA). As stated in the City Attorney's May 2, 2013 letter, the City is not a party to the private REOA and has no authority to enforce it. Further, there is no language in the Hoppe Marketplace planned unit development (PUD) restricting the use of the property to a high -end sit down restaurant. Staff and the Planning Commission have reviewed the Hoppe Marketplace 3'd Addition preliminary and final plat and have concluded that it meets the requirements of the City's Subdivision Ordinance. As such, we recommend approval. Staff will review the site and building plans for the proposed Advance Auto Parts store for compliance with Zoning Ordinance requirements with the building permit application. (Reserved for Dakota County Recording Information) CITY OF LAKEVILLE RESOLUTION NO. 13- RESOLUTION APPROVING THE PRELIMINARY AND FINAL PLAT FOR HOPPE MARKETPLACE 3RD ADDITION WHEREAS, the owner of the property described as HOPPE MARKETPLACE 3RD ADDITION has requested approval of a preliminary and final plat; and WHEREAS, the preliminary and final plat was reviewed by the Planning Commission and the Parks, Recreation and Natural Resources Committee; and WHEREAS, the preliminary and final plat is acceptable to the City. NOW THEREFORE BE IT RESOLVED by the Lakeville City Council: The HOPPE MARKETPLACE 3RD ADDITION preliminary and final plat is approved subject to the developer's execution of the development contract and security requirements. 2. The Mayor and City Clerk are hereby authorized to sign the development contract and the final plat mylars. 3. The City Clerk is directed to file a certified copy of this resolution with the Dakota County Recorder. DATED this 6 1 h day of May 2013 CITY OF LAKEVILLE Matt Little, Mayor ATTEST: Charlene Friedges, City Clerk STATE OF MINNESOTA) CITY OF LAKEVILLE ) I hereby certify that the foregoing Resolution No. is a true and correct copy of the resolution presented to and adopted by the City Council of the City of Lakeville at a duly authorized meeting thereof held on the 6 day of May 2013 as shown by the minutes of said meeting in my possession. Charlene Friedges City Clerk (SEAL) Drafted By: City of Lakeville 20195 Holyoke Avenue Lakeville, MN 55044 (Reserved for Dakota County Recording Information) CITY OF LAKEVILLE DAKOTA COUNTY, MINNESOTA RESOLUTION NO. 13- RESOLUTION VACATING PUBLIC DRAINAGE AND UTILITY EASEMENTS WHEREAS, the Planning Commission has conducted a public hearing, preceded by two (2) weeks published notice, to consider the vacation of the following described public drainage and utility easements; and WHEREAS, the City Council has determined that it is in the public interest to vacate said public drainage and utility easements. NOW, THEREFORE, BE IT RESOLVED by the Lakeville City Council: 1. The following public drainage and utility easements are hereby vacated, subject to the recording of the Hoppe Marketplace 31 Addition final plat: The drainage and utility easements as dedicated within Lot 2, Block 1, Hoppe Marketplace 2 nd Addition, per said recorded plat. 2. The City Clerk is directed to file a certified copy of this resolution with the Dakota County Recorder. DATED this 6" day of May 2013 CITY OF LAKEVILLE W Matt Little, Mayor ATTEST: BY: Charlene Friedges, City Clerk STATE OF MINNESOTA) CITY OF LAKEVILLE ) I hereby certify that the foregoing Resolution No. 13- is a true and correct copy of the resolution presented to and adopted by the City Council of the City of Lakeville at a duly authorized meeting thereof held on the 6" day of May, 2013 as shown by the minutes of said meeting in my possession. Charlene Friedges City Clerk Seal Drafted By: City of Lakeville 20195 Holyoke Avenue Lakeville, MN 55044 (reserved for recording information) DEVELOPMENT CONTRACT (Developer Installed Improvements) HOPPE MARKETPLACE 3" ADDITION AGREEMENT dated , 2013, by and between the CITY OF LAKEVILLE, a Minnesota municipal corporation ( "City "), and UNITED PROPERTIES INVESTMENT LLC, a Minnesota limited liability company (the "Developer ") 1. REQUEST FOR PLAT. The Developer has asked the City to approve a plat for HOPPE MARKETPLACE 3 RD ADDITION (referred to in this Contract as the "plat "). The land is situated in the County of Dakota, State of Minnesota, and is legally described as: Lot 2, Block 1, HOPPE MARKETPLACE 2 ND ADDITION, according to the recorded plat thereof, Dakota County, Minnesota 2. CONDITIONS OF PLAT. The City hereby approves the plat on condition that the Developer enter into this Contract, furnish the security required by it, and record the plat with the County Recorder or Registrar of Titles within 100 days after the City Council approves the final plat. 3. RIGHT TO PROCEED. Within the plat or land to be platted, the Developer may not grade or otherwise disturb the earth, remove trees, construct sewer lines, water lines, streets, utilities, public or private improvements, or any buildings until all the following conditions have been satisfied: 1) 1698345 1 this Contract has been fully executed by both parties and filed with the City Clerk, 2) the necessary security has been received by the City, and 3) the certificate of insurance specified in Section 32(J) of this Contract has been received by the City. In addition, the City will not issue a permit for more than one structure until the plat is filed with the office of the Dakota County Recorder or Registrar of Titles. 4. PHASED DEVELOPMENT. If the plat is a phase of a multi -phased preliminary plat, the City may refuse to approve final plats of subsequent phases if the Developer has breached this Contract and the breach has not been remedied. Development of subsequent phases may not proceed until Development Contracts for such phases are approved by the City. Park charges referred to in this Contract are not being imposed on outlots, if any, in the plat that are designated in an approved preliminary plat for future subdivision into lots and blocks. Such charges will be calculated and imposed when the outlots are final platted into lots and blocks. 5. PRELIMINARY PLAT STATUS. If the plat is a phase of a multi - phased preliminary plat, the preliminary plat approval for all phases not final platted shall lapse and be void unless final platted into lots and blocks, not outlots, within two (2) years after preliminary plat approval. 6. CHANGES IN OFFICIAL CONTROLS. For two (2) years from the date of this Contract, no amendments to the City's Comprehensive Plan, except an amendment placing the plat in the current metropolitan urban service area, or official controls shall apply to or affect the use, development density, lot size, lot layout or dedications of the approved plat unless required by state or federal law or agreed to in writing by the City and the Developer. Thereafter, notwithstanding anything in this Contract to the contrary, to the full extent permitted by state law, the City may require compliance with any amendments to the City's Comprehensive Plan, official controls, platting or dedication requirements enacted after the date of this Contract. 1698340 2 7. DEVELOPMENT PLANS. The plat shall be developed in accordance with the following plans, as approved by the City Council with this Contract. The plans shall not be attached to this Contract. With the exception of Plans A, B, C, and D, the plans may be prepared, subject to City Engineer's approval, after entering the Contract, but before commencement of any work in the plat. The City Engineer may approve minor amendments to Plan B without City Council approval. The erosion control plan may also be approved by the Dakota County Soil and Water Conservation District. If the plans vary from the written terms of this Contract, the written terms shall control. The plans are: Plan A - Plat Plan B - Final Grading, Drainage, and Erosion Control Plan Plan C - Plans and Specifications for Public Improvements Plan D — Drainage and Utility Easement Vacation Sketch 8. IMPROVEMENTS. The Developer shall install and pay for the following: A. Sanitary Sewer System B. Water System C. Storm Sewer System D. Streets E. Concrete Curb and Gutter F. Street Lights G. Site Grading, Storm water Treatment/Infiltration Basins, and Erosion Control H. Underground Utilities I. Setting of Iron Monuments J. Surveying and Staking K. Sidewalks and Trails 1698345 3 L. Retaining Walls The improvements shall be installed in accordance with the City subdivision ordinance; City standard specifications for utility and street construction; and any other ordinances including Section 11 -16 -7 of the City Code concerning erosion and drainage and Section 4 -1 -4 -2 prohibiting grading, construction activity, and the use of power equipment between the hours of 10 o'clock p.m. and 7 o'clock a.m. The Developer shall submit plans and specifications which have been prepared by a competent registered professional engineer to the City for approval by the City Engineer. The Developer shall instruct its engineer to provide adequate field inspection personnel to assure an acceptable level of quality control to the extent that the Developer's engineer will be able to certify that the construction work meets the approved City standards as a condition of City acceptance. In addition, the City may, at the City's discretion and at the Developer's expense, have one or more City inspectors and a soil engineer inspect the work on a full or part-time basis. The Developer, its contractors and subcontractors, shall follow all instructions received from the City's inspectors. The Developer's engineer shall provide for on -site project management. The Developer's engineer is responsible for design changes and contract administration between the Developer and the Developer's contractor. The Developer or its engineer shall schedule a pre - construction meeting at a mutually agreeable time at the City with all parties concerned, including the City staff, to review the program for the construction work. Within thirty (30) days after the completion of the improvements and before the security is released, the Developer shall supply the City with a complete set of reproducible "as constructed" plans and an electronic file of the "as constructed" plans in an AutoCAD.DWG file or a .DXF file, all prepared in accordance with City standards. In accordance with Minnesota Statutes 505.02, the final placement of iron monuments for all lot corners must be completed before the applicable security is released. The Developer's surveyor shall also 1698340 4 submit a written notice to the City certifying that the monuments have been installed following site grading, utility and street construction. 9. CONTRACTORS /SUBCONTRACTORS. City Council members, City employees, and City Planning Commission members, and corporations, partnerships, and other entities in which such individuals have greater than a 25% ownership interest or in which they are an officer or director may not act as contractors or subcontractors for the public improvements identified in Paragraph 8 above. 10. PERMITS. The Developer shall obtain or require its contractors and subcontractors to obtain all necessary permits, which may include: A. Dakota County for County Road Access and Work in County Rights -of -Way B. MnDot for State Highway Access C. MnDot for Work in Right -of -Way D. Minnesota Department of Health for Water mains E. MPCA NPDES Permit for Construction Activity F. MPCA for Sanitary Sewer and Hazardous Material Removal and Disposal G. DNR for Dewatering H. City of Lakeville for Building Permits I. MCES for Sanitary Sewer Connections J. City of Lakeville for Retaining Walls 11. DEWATERING. Due to the variable nature of groundwater levels and storm water flows, it will be the Developer's and the Developer's contractors and subcontractors responsibility to satisfy themselves with regard to the elevation of groundwater in the area and the level of effort needed to perform dewatering and storm flow routing operations. All dewatering shall be in accordance with all applicable county, state, and federal rules and regulations. DNR regulations regarding appropriations permits shall also be strictly followed. 12. TIME OF PERFORMANCE. Subject to Unavoidable Delays, the Developer shall install all required public improvements by November 30, 2013, with the exception of the final wear course of 1698345 5 asphalt on streets. The final wear course on streets shall be installed between August 15th and October 15th the first summer after the base layer of asphalt has been in place one freeze thaw cycle. The Developer may, however, request an extension of time from the City. If an extension is granted, it shall be conditioned upon updating the security posted by the Developer to reflect cost increases and the extended completion date. Final wear course placement outside of this time frame must have the written approval of the City Engineer. Unavoidable Delays means delays, outside the control of the party claiming its occurrence, which are the direct result of strikes, other labor troubles, material shortages, unusually severe or prolonged bad weather, Acts of God, fire or other casualty with the improvements, litigation commenced by third parties which, by injunction or other similar judicial action, directly results in delays, or acts of any federal, state or local government unit (including the City) which directly result in delays, or any other similar causes. 13. LICENSE. The Developer hereby grants the City, its agents, employees, officers and contractors a license to enter the plat to perform all work and inspections deemed appropriate by the City in conjunction with plat development. 14. EROSION CONTROL. Prior to initiating site grading, the erosion control plan, Plan B, shall be implemented by the Developer and inspected and approved by the City or Dakota County Soil and Water Conservation District. The City or Dakota County Soil and Water Conservation District may impose additional erosion control requirements if they would be beneficial. All areas disturbed by the grading operations shall be stabilized per the MPCA Storm water Permit for Construction Activity. Except as otherwise provided for in the erosion control plan, seed shall be in accordance with the City's current seeding specification which may include temporary seed to provide ground cover as rapidly as possible. All seeded areas shall be fertilized, mulched, and disc anchored as necessary for seed retention. The parties recognize that time is of the essence in controlling erosion. If the Developer does not comply with the MPCA Storm water Permit for Construction Activity or with the erosion control plan and schedule or 169834v5 6 supplementary instructions received from the City or the Dakota County Soil and Water Conservation District, the City may take such action as it deems appropriate to control erosion. The City will endeavor to notify the Developer in advance of any proposed action, but failure of the City to do so will not affect the Developer's and City's rights or obligations hereunder. If the Developer does not reimburse the City for any cost the City incurred for such work within ten (10) days, the City may draw down the letter of credit to pay any costs. No development, utility or street construction will be allowed and no building permits will be issued unless the plat is in full compliance with the approved erosion control plan. 15. GRADING. The plat shall be graded in accordance with the approved grading development and erosion control plan, Plan "B ". The plan shall conform to City of Lakeville specifications. A certified building pad survey is required prior to the issuance of a building permit. If the final grading, erosion control and as -built survey is not timely completed, the City may enter the lot, perform the work, and apply the cash escrow toward the cost. Upon satisfactory completion of the grading, erosion control and as -built survey, the escrow funds, without interest, less any draw made by the City, shall be returned to the person who deposited the funds with the City. 16. CLEAN UP. The Developer shall clean dirt and debris from streets that has resulted from construction work by the Developer, home builders, subcontractors, their agents or assigns. Prior to any construction in the plat, the Developer shall identify in writing a responsible party and schedule for erosion control, street cleaning, and street sweeping. 17. OWNERSHIP OF IMPROVEMENTS. Upon completion of the work and construction required by this Contract and final acceptance by the City, the improvements lying within public easements shall become City property without further notice or action. 18. CITY ENGINEERING ADMINISTRATION AND CONSTRUCTION OBSERVATION. The Developer shall pay a fee for in -house engineering administration. City 1698340 7 engineering administration will include monitoring of construction observation, consultation with Developer and its engineer on status or problems regarding the project, coordination for final inspection and acceptance, project monitoring during the warranty period, and processing of requests for reduction in security. Fees for this service shall be three percent (3 %) of construction costs identified in the Summary of Security Requirements if using a letter of credit, assuming normal construction and project scheduling. The Developer shall pay for construction observation performed by the City's in -house engineering staff or consulting engineer. Construction observation shall include part or full time inspection of proposed public utilities and street construction and will be billed on hourly rates estimated to be seven percent (7 %) of the estimated construction cost. 19. STORM SEWER AREA CHARGE. The parent parcel of Hoppe Marketplace 3` Addition has paid the storm sewer area charge. 20. SANITARY SEWER AVAILABILITY CHARGE. Development of Hoppe Marketplace 3` Addition includes the relocation of the public sanitary sewer within Lot 1, Block 1, Hoppe Marketplace 3` Addition. The Developer will provide a cash security of $16,700.00 for the sanitary sewer public improvements. The Sanitary Sewer Area Charge has been previously collected on the parcel; therefore no Sanitary Sewer Availability Charge will be collected. 21. WATERMAIN. A private eight inch water main stub was constructed to serve Hoppe Marketplace 3` Addition as part of the Hoppe Marketplace 2 " Addition improvements. No additional public water main improvements are necessary to serve Lot 1, Block 1, Hoppe Marketplace 3` Addition. The hydrant, gate valve and water service improvements to Hoppe Marketplace 3` Addition are private and shall be maintained by the owner. 1698340 8 22. CONSTRUCTION ACCESS. Construction traffic access and egress to Hoppe Marketplace 3` Addition for site construction purposes must be through the existing main driveway to CSAH 50 opposite Jubilee Way. 23. PARK DEDICATION AND TRAILS. The parent parcel of Hoppe Marketplace 3` Addition has paid the park dedication fees. 24. TRAFFIC CONTROL SIGNS AND STREET LIGHT OPERATION COSTS. The parent parcel of Hoppe Marketplace 3` Addition was assessed $10,778.80 for the installation of the traffic signal at the intersection of Jubilee Way and CSAH 50. The current 2013 payoff of this assessment for Hoppe Marketplace 3` Addition is $6,467.28 and must be paid at the time of final plat approval. A cash fee for one -year of streetlight operating expenses was paid with the Hoppe Marketplace 2 nd Addition final plat. No street light operating expenses will be collected. 25. SURFACE WATER MANAGEMENT UTILITY FEE. A surface water management utility fee for one year was paid with the Hoppe Marketplace 2 nd Addition final plat. No surface water management fees will be collected. 26. SPECIAL PROVISIONS. The following special provisions shall apply to plat development: A. Implementation of the recommendations listed in the April 12, 2013, engineering report_ B. The site shall be developed according to the approved site, grading, utility, landscape, building, lighting, and signage plans. C. An agreement for shared driveway access and parking shall remain in full force and effect at all times between all lots in the Hoppe Marketplace and Hoppe Marketplace 2 nd and 3` Additions. D. Prior to City Council approval of the final plat, the Developer shall furnish a boundary survey of the proposed property to be platted with all property corner monumentation in place and marked 1698340 9 with lath and a flag. Any encroachments on or adjacent to the property shall be noted on the survey. The Developer shall post a $200.00 security for the final placement of interior subdivision iron monuments at property corners. The security was calculated as follows: 2 lots at $100.00 per lot. The security will be held by the City until the Developer's land surveyor certifies that all irons have been set following site grading and utility and street construction. In addition, the certificate of survey must also include a certification that all irons for a specific lot have either been found or set prior to the issuance of a building permit for that lot. E. The Developer shall pay a cash fee for the preparation of record construction drawings and City base map updating. This fee is $75.00 per lot for a total charge of $150.00. F. The Developer is required to submit the final plat in electronic format. The electronic format shall be either AutoCAD.DWG file or a .DXF file. All construction record drawings (e.g., grading, utilities, streets) shall be in electronic format in accordance with standard City specifications. The Developer shall also submit one complete set of reproducible construction plans on Mylar. 27. SUMMARY OF SECURITY REQUIREMENTS. To guarantee compliance with the terms of this Contract, payment of real estate taxes including interest and penalties, payment of special assessments, payment of the costs of all public and private improvements, and construction of all public and private improvements, the Developer shall furnish the City with a letter of credit, in the form attached hereto, from a bank ( "security ") for $23,150.50, plus a cash fee of $591.00 for City engineering administration. The amount of the security was calculated as follows: CONSTRUCTION COSTS: Sanitary Sewer $ 16,700.00 On -Site Private Signing and Pavement Markings 1,000.00 Erosion Control, Restoration, Grading and Grading Certification 2,000.00 CONSTRUCTION SUB -TOTAL $ 19,700.00 169834v5 10 OTHER COSTS: Developer's Design (6.0 %) $ 1,182.00 Developer's Construction Survey (2.5 %) 492.50 City Legal Expenses (Est. 0.5 %) 98.50 City Construction Observation (Est. 7.0 %) 1,379.00 Developer's Record Drawings (0.5 %) 98.50 Lot Corners /Iron Monuments 200.00 OTHER COSTS SUB -TOTAL $ 3,450.50 TOTAL SECURITIES: $ 23,150.50 This breakdown is for historical reference; it is not a restriction on the use of the security. The bank shall be subject to the approval of the City Administrator. The City may draw down the security, without notice, for any violation of the terms of this Contract or if the security is allowed to lapse prior to the end of the required term. If the required public improvements are not completed at least thirty (30) days prior to the expiration of the security, the City may also draw it down. If the security is drawn down, the proceeds shall be used to cure the default. Upon receipt of proof satisfactory to the City that work has been completed and financial obligations to the City have been satisfied, with City approval the security may be reduced from time to time by ninety percent (90 %) of the financial obligations that have been satisfied. Ten percent (10 %) of the amounts certified by the Developer's engineer shall be retained as security until all improvements have been completed, all financial obligations to the City satisfied, the required "as constructed" plans have been received by the City, a warranty security is provided, and the public improvements are accepted by the City Council. The City standard specifications for utilities and street construction outline procedures for security reductions. After the completion of the improvements, upon the Developer's request the City shall issue an instrument in recordable form acknowledging that the improvements have been completed. 28. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash requirements under this Contract which must be furnished to the City at the time of final plat approval: 1698345 11 Assessment (221270) $ 6,467.28 City Base Map Updating 150.00 City Engineering Administration (3 %) 591.00 TOTAL CASH REQUIREMENTS $ 7,208.28 29. WARRANTY. The Developer warrants all improvements required to be constructed by it pursuant to this Contract against poor material and faulty workmanship. The warranty period for underground utilities is two years and shall commence following completion and acceptance by City Council, which acceptance shall occur promptly after completion.. The one year warranty period on streets shall commence after the final wear course has been installed and accepted by the City Council, which acceptance shall occur promptly after completion. The Developer shall post maintenance bonds in the amount of twenty -five percent (25 %) of final certified construction costs to secure the warranties. The City shall retain ten percent (10 %) of the security posted by the Developer until the maintenance bonds are furnished to the City or until the warranty period expires, whichever first occurs. The retainage may be used to pay for warranty work. The City standard specifications for utility and street construction identify the procedures for final acceptance of streets and utilities. 30. RESPONSIBILITY FOR COSTS. A. Except as otherwise specified herein, the Developer shall pay all costs incurred by it or the City in conjunction with the development of the plat, including but not limited to Soil and Water Conservation District charges, legal, planning, engineering and construction observation inspection expenses incurred in connection with approval and acceptance of the plat, the preparation of this Contract, review of construction plans and documents, and all costs and expenses incurred by the City in monitoring and inspecting development of the plat. B. The Developer shall hold the City and its officers, employees, and agents harmless from claims made by itself and third parties for damages sustained or costs incurred resulting from plat approval and development. The Developer shall indemnify the City and its officers, employees, and agents for all 1698345 12 costs, damages, or expenses which the City may pay or incur in consequence of such claims, including attorneys' fees. Such indemnity shall not extend to the negligent or other tortious acts of the City, its officers, employees and/or agents. C. The Developer shall reimburse the City for costs incurred in the enforcement of this Contract, including engineering and attorneys' fees, provided the City prevails in any action commenced or defended with respect to such enforcement. D. The Developer shall pay, or cause to be paid when due, and in any event before any penalty is attached, all special assessments referred to in this Contract. This is a personal obligation of the Developer and shall continue in full force and effect even if the Developer sells one or more lots, the entire plat, or any part of it. E. The Developer shall pay in full all bills submitted to it by the City for obligations incurred under this Contract within thirty (30) days after receipt. If the bills are not paid on time, the City may halt plat development and construction until the bills are paid in full. Bills not paid within thirty (30) days shall accrue interest at the rate of eighteen percent (18 %) per year. F. In addition to the charges and special assessments referred to herein, other charges and special assessments may be imposed such as but not limited to sewer availability charges ( "SAC "), City water connection charges, City sewer connection charges, and building permit fees. 31. DEVELOPER'S DEFAULT. In the event of default by the Developer as to any of the work to be performed by it hereunder, the City may, at its option, perform the work and the Developer shall promptly reimburse the City for any expense incurred by the City, provided the Developer, except in an emergency as determined by the City, is first given notice of the work in default, not less than forty -eight (48) hours in advance. This Contract is a license for the City to act, and it shall not be necessary for the City 1698345 13 to seek a Court order for permission to enter the land. When the City does any such work, the City may, in addition to its other remedies, assess the cost in whole or in part. 32. MISCELLANEOUS. A. Hoppe Marketplace 3` Addition is subject to the Assessment Agreement dated June 29, 2004 for a future traffic signal at CSAH 50 and Jubilee Way. B. The Developer represents to the City that the plat complies with all city, county, metropolitan, state, and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. If the City determines that the plat does not comply, the City may, at its option, refuse to allow construction or development work in the plat until the Developer does comply. Upon the City's demand, the Developer shall cease work until there is compliance. C. Third parties shall have no recourse against the City or Developer under this Contract. D. Breach of the terms of this Contract by the Developer shall be grounds for denial of building permits, including lots sold to third parties, but such denial with respect to lots sold to third parties shall continue only so long as it relates to public improvements. E. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this Contract is for any reason held invalid, such decision shall not affect the validity of the remaining portion of this Contract. F. Grading, curbing, and one lift of asphalt shall be installed on all public and private streets prior to issuance of any building permits, except one model home on a lot acceptable to the Building Official. Approval of an administrative permit in compliance with Chapter 27 of the City's zoning ordinance is required prior to the construction of any model homes. 1698345 14 G. If building permits are issued prior to the acceptance of public improvements, the Developer assumes all liability and costs resulting in delays in completion of public improvements and damage to public improvements caused by the City, Developer, its contractors, subcontractors, material men, employees, agents, or third parties. No sewer and water connections or inspections may be conducted and no one may occupy a building for which a building permit is issued on either a temporary or permanent basis until the streets needed for access have been paved with a bituminous surface and the utilities are accepted by the City Engineer. H. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Contract. To be binding, amendments or waivers shall be in writing, signed by the parties and approved by written resolution of the City Council. The City's failure to promptly take legal action to enforce this Contract shall not be a waiver or release. I. This Contract shall run with the land and may be recorded against the title to the property. The Developer covenants with the City, its successors and assigns, that the Developer is well seized in fee title of the property being final platted and/or has obtained consents to this Contract, in the form attached hereto, from all parties who have an interest in the property; that there are no unrecorded interests in the property being final platted; and that the Developer will indemnify and hold the City harmless for any breach of the foregoing covenants. J. The Developer and contractor shall acquire public liability and property damage insurance covering personal injury, including death, and claims for property damage which may arise out of the Developer's work or the work of their subcontractors or by one directly or indirectly employed by any of them. The insurance must be maintained until six (6) months after the City has accepted the public improvements. Limits for bodily injury and death shall be not less than $500,000 for one person and $1,000,000 for each occurrence; limits for property damage shall be not less than $200,000 for each 1698345 15 occurrence; or a combination single limit policy of $1,000,000 or more. The City shall be named as an additional insured on the policy on a primary and noncontributory basis, and the Developer and contractor shall file with the City a certificate evidencing coverage prior to the City signing the plat. The certificate shall provide that the City must be given ten (10) days advance written notice of the cancellation of the insurance. K. Each right, power or remedy herein conferred upon the City is cumulative and in addition to every other right, power or remedy, express or implied, now or hereafter arising, available to City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein set forth or otherwise so existing may be exercised from time to time as often and in such order as may be deemed expedient by the City and shall not be a waiver of the right to exercise at any time thereafter any other right, power or remedy. L. The Developer may not assign this Contract without the written permission of the City Council. The Developer's obligation hereunder shall continue in full force and effect even if the Developer sells one or more lots, the entire plat, or any part of it. M. Retaining walls that require a building permit shall be constructed in accordance with plans and specifications prepared by a structural or geotechnical engineer licensed by the State of Minnesota. Following construction, a certification signed by the design engineer shall be filed with the Building Official evidencing that the retaining wall was constructed in accordance with the approved plans and specifications. All retaining walls identified on the development plans and by special conditions referred to in this Contract shall be constructed before any other building permit is issued for a lot on which a retaining wall is required to be built. 33. NOTICES. Required notices to the Developer shall be in writing, and shall be either hand delivered to the Developer, its employees or agents, or mailed to the Developer by certified mail at the 1698345 16 following address: 3500 American Boulevard West, Suite 200, Bloomington, Minnesota 55431. Notices to the City shall be in writing and shall be either hand delivered to the City Administrator, or mailed to the City by certified mail in care of the City Administrator at the following address: Lakeville City Hall, 20195 Holyoke Avenue, Lakeville, Minnesota 55044. [The remainder of this page has been intentionally left blank. Signature pages follow.] 169834v5 17 CITY OF LAKEVILLE It (SEAL) AND STATE OF MINNESOTA ) ss. COUNTY OF DAKOTA ) Matt Little, Mayor Charlene Friedges, City Clerk The foregoing instrument was acknowledged before me this day of , 2013, by Matt Little and by Charlene Friedges, the Mayor and City Clerk of the City of Lakeville, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. NOTARY PUBLIC 1698345 18 DEVELOPER: UNITED PROPERTIES INVESTMENT LLC BY: Its Seni r ice President STATE OF MINNESOTA ) )ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me thi day of 1, , 2013, by Keith A. Ulstad, the senior vice president of United Properties Investment LLC, a Minnesota limited liability company, on behalf of the company. NdtARY PUBLIC ROBIN LEE MELCHER NOTARY PUBLIC • MINNESOTA MY COMMISSION EXPIRES 0113112015 DRAFTED BY: CAMPBELL, KNUTSON Professional Association 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, Minnesota 55121 Telephone: 651- 452 -5000 RNK:cjh 169834v5 19 '; MARK G. DHNSTAD THOMSEN • NYBECK THOMAS R. KELLEY ROBERT D. LUCAS ATTORNEYS AT LAW DAVID J.McGEE DENNIS M. PATRICK E S T 1 9 7 2 GRETCHEN S. SCHELLHAS CHRISTOPHER P. BENZ MATTHEW A. DREWES OF COUNSEL: BRAD J. BOYD DONALD D. SMITH LISA M. AMUNDSON JACK W. CARLSON NATALIE R. WALZ NATHAN J. KNOERNSCHILD HELGE THOMSEN SARAH B. BENNETT 1919-1999 JAMES H. GEMPELER GLENN G. NYBECK ill April 29, 2013 VIA U.S. AND CERTIFIED MAIL City of Lakeville Attn: Mr. Daryl Morey 20195 Holyoke Avenue Lakeville, MN 55044 VIA U.S. AND CERTIFIED MAIL Campbell Knutson, P.A. Attn: Roger Knutson, Esq. 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, MN 55121 Re: Second Pointe, LLC Building — 17850 Kenwood Trail, Lakeville, Minnesota Our File No. 13 -4042E Dear Mr. Morey and Mr. Knutson: As you are aware, this firm represents Second Pointe, LLC ( "Second Pointe ") in regards to the above - referenced property located at 17850 Kenwood Trail, Lakeville, Minnesota (the "Property "). It is our understanding the City of Lakeville Planning Commission recently conducted a public hearing on April 18, 2013, to consider the application of United Properties Investment, LLC ( "United Properties ") for the preliminary and final plat of two commercial lots known as Hoppe Marketplace 3` Addition, and that such application was approved by the Planning Commission. In proceeding with the development of the two commercial lots located within Hoppe Marketplace 3` Addition, there are certain issues that the City should be aware of with respect to the numerous breaches by United Properties in proceeding with the development of Hoppe Marketplace 3 rd Addition. Despite the fact that many of the issues set forth in this correspondence relate to promises or representations made to Second Pointe by United Properties, it is important for the City to be aware of these issues because by approving the development proposed by United Properties, the City is complicit in allowing the original development scheme to change from what was initially promised to Second Pointe when it purchased the Property. Moreover, it appears that the City has not adequately addressed the remaining parking and right -of- way issues, as discussed further herein. Building Setback Requirements Section 3.1 of the Reciprocal Easement and Operation Agreement for the Plat of Hoppe Marketplace ( "REOX) provides in part: "Building Areas shall be setback at least twenty (20) feet from public right -of- ways." The thoroughfare located on Lot 2, Block 1, Hoppe Marketplace 2 nd Addition (the "Vacant Property ") that extends between Culvers (located on Lot 1, Block 1, Hoppe Marketplace) and Tires Plus (Lot 1, Block 2, Hoppe Marketplace) is a "public right -of -way" as set forth in Section 3.1 of the Reciprocal Easement Agreement. The REOA does not specifically define the term "public right -of- way" in the agreement. Black's Law Dictionary defines the term "right -of -way" to mean "a person's legal right, established by usage or contract, to pass through ground or 3600 AMERICAN BOULEVARD WEST, SUITE 400, BLOOMINGTON, MN 55431 (952) 835 -7000 - (952) 835 -9450 FAX • WWW.TN- LAW.COM Mr. Daryl Morey Mr. Roger Knutson, Esq. April 29, 2013 Page 2 property owned by another." A right -of -way includes a pathway or roadway and may also be a specific grant of land or easement. Section 2.1 of the REOA grants easements "for the purposes of ingress, egress, passage and delivery by pedestrian and vehicular traffic for the benefit of all Lots within the Property....as roadways, drive aisles, parking areas, sidewalks and walkways within the Common Areas." Based on the foregoing, the easement granted across the Vacant Property for ingress and egress of pedestrian and vehicular traffic is deemed to be a "public right -of -way" under Section 3.1 of the REOA. As development plans are finalized by the City of Lakeville, please bear in mind that the Advanced Auto Parts building must be at least 20 -feet from any public right -of -way, as set forth in the REOA. Failure to adhere to the setback requirement set forth in Section 3.1 of the REOA may be deemed a breach of the agreement by United Properties. Approval in Change or Modification to the Common Areas Prior approval of Lot Owners must be obtained for any change, alteration or modification of the Common Areas to the extent that such change materially and adversely affects the parking scheme of the property. Specifically, Section 3.2(b) of the REOA provides in part: Once the construction of the initial Common Areas of a Lot is completed in accordance with the Plans and Specifications, no approval is needed from any Owner of a Lot for any change, alteration or modification of the Common Areas provided that such change does not: (a) materially and adversely change the accessibility of pedestrian and /or vehicular traffic to a Lot from the accessibility created under the Site Plan; or (b) materially and adversely affect the common parking scheme of the Property as set forth in the Site Plan (however the foregoing shall not require the replacement of any particular common area improvement destroyed or substantially destroyed by casualty and /or taken in whole or in part by condemnation). Prior to any material change, alteration or modification to the Common Areas, an Owner shall give at least thirty (30) days' notice to other Owners. [Emphasis added.] The re- platting of the Vacant Property has a material and adverse effect on the parking scheme as it relates to my client's use of the parking stalls located on the Vacant Property. Pursuant to Section 7.1.1. of the First Amendment to the Reciprocal Easement and Operation Agreement dated January 18, 2006 (the "First Amendment "), my client was allotted 12 additional parking stalls located on the Vacant Property for its use in order to meet the requirements of the City of Lakeville zoning Mr. Daryl Morey Mr. Roger Knutson, Esq. April 29, 2013 Page 3 ordinances. The re- platting of the Vacant Property will change the common parking scheme in the development. Despite this proposed change in the parking scheme, Second Pointe did not receive the requisite 30 days' notice of the proposed changes from United Properties as required under Section 3.2(b) of the REOA. As a result, due to the fact that United Properties did not provide Second Pointe with 30 days' notice of its intent to change, alter or modify the Common Areas or obtain the consent of Second Pointe with respect to said changes, alterations or modifications to the Common Areas, the City of Lakeville should not proceed with the development of the Vacant Property unless and until such consent is obtained from Second Pointe. Maintenance of Common Areas Section 4.2(a) of the REOA provides in part: "After initial construction of improvements on a Lot, unimproved Common Areas shall be grassed or otherwise landscaped, mowed and kept litter -free; if initial building improvements have not been constructed or are not under construction on any Lot within one (1) year from the date hereof, then the Owner of such Lot shall cause its Lot to be grassed or otherwise landscaped, mowed and kept litter - free." Pursuant to Section 4.2(a) of the REOA, if improvements have not been constructed on a Lot within one (1) year from the date of execution of the REOA, then the Lot must be grassed or landscaped, mowed and kept litter -free. United Properties as the Owner of the Vacant Property did not comply with Section 4.2(a) in that it did not grass or otherwise landscape, mow and keep the property litter -free. In addition, Section 2(a)(i) of that certain Site Development Agreement between United Properties and Second Pointe provides that United Properties agreed to complete certain site work obligations, including but not limited to, the installation of a portion of the paving of the parking lot located on the Vacant Property. Moreover, Section 4.2(a)(i) of the REOA requires each Lot Owner to maintain, repair and replace the parking areas, roadways, and sidewalks, and provide general upkeep of the same. As the Owner of the Vacant Property, United Properties was obligated to provide upkeep to and maintain, repair and replace the parking areas, roadways, and sidewalks located on the Vacant Property. Despite United Properties' foregoing maintenance obligations, my client has maintained the parking areas, roadways and sidewalks on the Vacant Property since it purchased the Property in 2006, at its sole cost and expense. United Properties' failure to maintain the Common Areas on the Vacant Property is yet another example of a breach of the REOA by United Properties that has adversely affected my client and one that my client will not allow to continue. Mr. Daryl Morey Mr. Roger Knutson, Esq. April 29, 2013 Page 4 Sign Covenants and Restrictions Article 6 of the REOA relates to sign covenants and restrictions; specifically, Section 6.1 creates Property Sign easements and provides in part: These easements for the Property Signs are for the benefit of the Owner or Occupants identified (from time to time) on each said sign ( "Sign Owner "); except that in the evert Outlot B is subdivided into tWo or more Lots and only one Property Sign is allowed by the City as the Outlot B sign, then the Sign Owner of the Outlot B sign shall be the Lot subdivided out of Outlot B that is the furthest from Kenwood Trail (CSAH #50). If the City allows more than one sign at the Outlot B sign location shown on Exhibit B, then such second sign shall be placed to the far side (away from Kenwood Trail /CSAH #50) of the first Outlot B sign." [Emphasis added]. Outlot B of Hoppe Marketplace was re- platted into 2 separate lots and one Outlot as: Lots 1 and 2, Block 1, and Outlot A, Hoppe Marketplace 2nd Addition. Therefore, reference to " Outlot B" in Section 6.1 of the REOA means the Property and the Vacant Property. Pursuant to the language in Section 6.1, the City of Lakeville has the ability to allow more than one sign at the Outlot B sign location. As you are aware, my client was promised by United Properties that the Vacant Property would be developed as a high -end, sit down restaurant. Thus, when my client initially agreed to share the Property Sign location for Outlot B, it understood that it would be sharing said Property Sign with a high -end restaurant establishment rather than an Advanced Auto Parts business. Based on the foregoing, my client strongly urges the City to consider exercising its authority under Section 6.1 of the REOA by allowing more than one Property Sign to be constructed at the Outlot B sign location, having the Advanced Auto Parts sign located on the far side of the first Outlot B sign, away from Kenwood Trail. Parking Stalls- Exception to Self Parked Requirement Section 7.1.1. (as amended) of the REOA allows compliance of the Self- Parked Requirement on an amalgamated basis and provides: [T]he parking on Lot 1 may be under the Self Parked Requirement by up to 5 parking stalls, and that the parking on Lot 1, 2nd maybe under the Self Parked Requirement by up to 12 parking stalls, which means that Lot 2, 2nd (or the constituent lots resulting from any further re- platting and /or subdivision of such Lot 2, 2d) must have parking to exceed the Self Mr. Daryl Morey Mr. Roger Knutson, Esq. April 29, 2013 Page 5 Parked Requirement by a total of 17 parking stalls (or due to the uses of Lot 1, Lot 1, 2nd and Lot 2, 2nd, the City allows the constituent Lots to be compliant with the Governmental Regulations without such 17 excess Lot 2, 2nd parking stalls to meet the Self Parked Requirement). [Emphasis added]. The parking requirements for retail businesses and restaurants is the same and has not changed - since my client purchased the Property in 2006. When Second Pointe purchased the Property, it relied on the terms and conditions of this Agreement as related to the number of parking spaces for its use. Based on the terms and conditions of Section 7.1.1. of the REOA, my client understood that it would have 12 parking spaces located on the Vacant Property for its use. My client is now being told that in order to accommodate the parking for Advanced Auto Parts, they may not have access to the 12 parking spaces granted to them under the REOA, or that the spaces may be in relocated. This is not only troublesome, but confusing to my client, as the proposed use of the Vacant Property in 2006 (restaurant), and the current proposed use of the Vacant Property (retail), require the same number of parking spaces. However, my client is now being told that the number of excess parking spaces available may be reduced substantially with no explanation or justification as to the reduction. Furthermore, the City of Lakeville now appears to be including NTB in its analysis to calculate the parking spaces available to each of the Lots in order to comply with the governmental regulations. Despite the City's efforts to include NTB in its current analysis, a deficiency in the number of excess parking spaces available still exists. Finally, if retail businesses are developed on the two re- platted lots of the Vacant Property, there will be a shortage of parking spaces available to Second Pointe and Culvers, unless the parking scheme is modified to allow my client to retain its right to use the 12 parking spaces granted to it under the REOA. As a result, the approved re- platting of the Vacant Property and proposed development of an Advanced Auto Parts building on the Vacant Property not only violates Section 7.1.1 of the REOA, but also fails to comply with the governmental regulations with respect to the Self- Parked Requirements. The City of Lakeville must revise its proposed parking scheme under the Hoppe Marketplace 3 rd Addition to comply with both its own regulations and the terms and conditions set forth in the REOA. Mr. Daryl Morey Mr. Roger Knutson, Esq. April 29, 2013 Page 6 Misrepresentations made by United Properties and Architectural Issues Finally, as my letter dated April 3, 2013, discussed in detail, United Properties made numerous representations to my client of its intent to construct a high -end, sit - down restaurant on the Northwest area of the Vacant Property. Evidence of United Properties' representations to Second Pointe is found in the materials provided by United Properties, the preliminary and final plat maps for Hoppe Marketplace 2nd Addition, and even the memoranda and notes of the City of Lakeville Planning Commission, all of which indicate that the Vacant Property was to be developed as a sit -down restaurant. As you are also aware, the individual owners of Second Pointe had conversations with agents or representatives of United Properties confirming that the Subject Property would in fact be used as a sit -down restaurant. Further, the former City of Lakeville Administrator, Bob Erickson, stated in meetings that there would be nothing on the proposed site for the Vacant Property but a "sit down" restaurant. Second Pointe relied on the representations and warranties made not only by United Properties, but also by the City of Lakeville in purchasing the Property and believed that a restaurant would be developed on the Vacant Property. In granting United Properties' application for the preliminary and final plat of two commercial lots known as Hoppe Marketplace 3 Addition, it is has unfortunately been made clear to my client that the development of the promised high -end, sit -down restaurant will not come to fruition. As proposed, the Second Pointe building will face the rear of the Advanced Auto Parts building, which will likely have a negative effect on the Property's value for tenants of Second Pointe as well as for the individual owners of Second Pointe. Therefore, while my client still vehemently opposes construction of an Advanced Auto Parts building on the Vacant Property, it requests that at the very least, the construction of the Advanced Auto Parts building be of the same or similar architectural requirements as the other buildings located in the development pursuant to the terms and conditions of the Development Agreement. In addition, my client requests the proposed Advanced Auto Parts building be located on the Northwest area of the Vacant Property, where the promised sit -down restaurant was to be constructed. We are hopeful that the City of Lakeville will seriously consider the foregoing issues in proceeding with the development of the Vacant Property. Failure of the City to properly consider the above - referenced issues in proceeding with the development of the Vacant Property may cause my client to pursue any and all legal remedies available to it in order to either attempt to stop the noncompliant construction or fairly compensate my client for the damage it will suffer. Mr. Daryl Morey Mr. Roger Knutson, Esq. April 29, 2013 Page 7 Please contact me at your earliest convenience to discuss the foregoing. Very truly yours, David J. McGee Attorney at Law DJM /sbb CAMPBELL KNUTSON * *a Direct Dial: (651) 234 -6215 E- mailAddress: rknuison@ck- law.com May 2, 2013 Mr. Daryl Morey City of Lakeville 20195 Holyoke Avenue Lakeville, MN 55044 RE: HOPPE MARKETPLACE 3 ADDITION Dear Daryl: I have reviewed the letter from David J. McGee at Thomsen & Nybeck dated April 29, 2013 concerning the application of United Properties for plat approval for the Hoppe Marketplace 3 rd Addition. His letter states "...there are certain issues the City should be aware of with respect to the numerous breaches by United Properties in proceeding with the development..." Mr. McGee asserts on behalf of his client that approval of the 3 rd Addition would be a violation of the Reciprocal Easement and Operation Agreement for Plat of Hoppe Marketplace. The City is not party to that private Agreement and has no authority to enforce it. The pending application is for plat approval. This is a quasi-judicial review in which the City is charged with determining whether or not the plat complies with our ordinances and statutory requirement. If it does comply, the City must approve it. The City cannot consider private agreements in making that decision. The April 12, 2013 memorandum from the Planning Department to the Planning Commission concluded it is in compliance. If Mr. McGee's client challenges the City's decision on the plat, the draft Development Contract for the 3 rd Addition contains the following provision that provides the City a certain level of protection: "The Developer shall hold the City and its officers, employees, and agents harmless from claims made by itself and third parties for damages sustained or costs incurred resulting from plat approval and development. The Developer shall indemnify the City and its officers, employees, and agents for all costs, May 2, 2013 Page 2 damages, or expenses which the City may pay or incur in consequence of such claims, including attorneys' fees. Such indemnity shall not extend to the negligent or other tortuous acts of the City, its officers, employees and/or agents." Please call if you have any questions. Very truly yours, WOM CAMPBELL KNUTSON Planning Commission Meeting Minutes, April 4, 2013 6. Hoppe Marketplace 3 Addition Page 2 Chair Lillehei opened the public hearing to consider the application of United Properties Investment, LLC for the following, located east of Kenwood Trail (County Road 50) at Jubilee Way: A. The preliminary and final plat of two commercial lots to be known as Hoppe Marketplace 3 d Addition, and B. The vacation of public drainage and utility easements. The Recording Secretary attested that the legal notice had been duly published in accordance with State Sta#utes and City Code. Keith Ulstad, Senior Vice President of Retail Develop ffint for United Properties, Dan Parks, Westwood Professional Services, and ,:Btacearlson, Project Director for MidAmerica, were in attendance at tonight's Me 4 t 4 Ulstad presented an overview of their request. He indicated that ,LJn ted Propertied 4bought the subject property in 2004. There has been no inter6M in the property fia quite a while so when Advance Auto Parts expressed art '4rest, they pursued 11%;-1e stated that they are proposing to subdivide the property and builsto suit for this -eagle tenant. They do not want to construct a multi - tenft . buildrd.-aon one lot hoping to fill the other space in a timely fashion, given the recea4bf interest in the site. He stated that the proposed Advance AutQ arts building * be very nice looking, which they are proud of. 1 Associate Planner Frank Dempse resent 1(a ; e plann ng report. Mr. Dempsey stated the subject pro f is curreli0l pla as ` 2Block 1, Hoppe Marketplace 2 Addition and isd qmd F.:UD, Planned'~; hit Development. The underlying zoning is C -3, General Ctnmercial trict. Mr. Dempsey st6d the on June 6 2005 ar Ahf City C� e k ���;Nov Parma store prod -led to S 4 1� � M1h�.' •rS ifion is a perr6 u: Mr. ,psey explain to the to save tw the REM���ilding , 21, 2005. plat was approved by the City Council 2 nd Addition plat was approved by the mpsey indicated that the Advance Auto constructed on Lot 1, Block 1, Hoppe Marketplace 3' :the C -3 District. he proposed trash enclosure location has been moved ng spaces and to be better screened from the view of Mr. Dempsey` %*-,rnented that the Parks, Recreation and Natural Resources Committee draft' } motion of approval of the Hoppe Marketplace 3 Addition preliminary and final plat was distributed at tonight's meeting. He indicated that park dedication for Hoppe Marketplace 3 Addition was satisfied with the final plat of Hoppe Marketplace 2 Addition with a combination of land dedication for a future greenway corridor adjacent to the property and a cash fee. Mr. Dempsey explained that the drainage and utility easements that were dedicated with Lot 2, Block 1, Hoppe Marketplace r 2 nd Addition will be vacated and Planning Commission Meeting Minutes, April 4, 2013 Page 3 reestablished to correspond with the new utility locations proposed with the Hoppe Marketplace T Addition final plat. Mr. Dempsey stated that staff recommends approval of the Hoppe Marketplace 3 Addition preliminary and final plat and easement vacation, subject to the four stipulations listed in the April 12, 2013 planning report. Chair Lillehei opened the hearing to the public for comment. Eric Malmberg, owner of REMAX located at 17640 Mr. Malmberg stated that his father Dave Malm Pointe LLC building and that he is the owner of R main tenant of the Second Pointe LLC building, decided to expand their operations in Lakevillie `? the site of the proposed Advance Auta Parts Properties they could not build on that sifie - Main) y high end sit down restaurant that woulas rve seating. He indicated that they spent over $i to construct the building and partcag lot on their that there were several representations by U Lakeville that a high end sit down restai� ant _vvas and he has documentation to support that. -'�' =;:' berb is .. .:the owner of t Second eraz Adva6tage Plus, which is the He commented. that in 2004 they Originally their wanted to build on building but were "a�old by United because there was - ` oing to be a aWhol and have outdoor patio C�^-tb provide suitable soil in order tj-rent site. Mr. Malmberg claimed rritel Properties and the City of prrnsed on the subject property Mr. Malmberg expressed concern aboutth ''`followi • There rs not enough harking for Their use. The shared parking agreement that is m Mace was #used .upon a' aurant use on the subject property that would maul bea .versus the Remax use, which is mainly a aawr -e use « cag e deMpRment agreement" for the shared parking be unilaterally changed? ; The existing�paking `sths Remax uses that are on the subject property will �{ be backing directly into' the proposed Advance Auto Parts building without 'dit setback or Dbfer. • The hack of tae Advance Auto Parts building will in effect turn the existing shared driveways , into an alleyway. • Any chzi the shared monument signage on a unilateral basis is unfair. Because of these concerns, Second Pointe LLC is asking that the applications submitted by United Properties be denied. Dave Malmberg, owner of the Second Pointe LLC building located at 17640 Kenwood Trail Planning Commission Meeting Minutes, April 4, 2013 Page 4 Mr. Malmberg stated they have an emotional commitment to their building and lot because of the factors that went into choosing their site and the extra cost and effort that went into correcting the soil and preparing the site for construction. He understands from a business point of view the cost of carrying undeveloped lots and is sympathetic to United Properties. Mr. Malmberg stated that he would like to see the development of the property dealt with in a positive way. When he first learned about the Advance Auto Parts building, their view of it was essentially a blank concrete block wall with no windows or landscaping and a dumpster. Mr. Malmberg stated that he had lunch with Mr. Olson and Mr. Erickson in,.e summer of 2004 and Mr. Erickson made it very clear to him that there was not gairig to be any options for this site other than a sit down restaurant, period. He',*. that they made very expensive decisions based upon assumptions that they could rely upon. Motion was made by Blee, seconded by Ma 6:30 p.m. k Ayes: Maguire, Swenson, Boerschel, LtHihi Nays: 0_; 6:' Prior to asking the Planning Commission foie::; staff to explain what it means to Aral plat and h that has already been final platted - "M& ,Morey and final plat process. Chair Lillehei points were: mme • Comm"Ibber Gr 4k 4 c stated thaf fide Zo • 4 ^h} } Commissioner`s m k }�.- �� ' oes no T'6quire' be opposed; Ao a indicated that ne , ; .-'-W.as the location `d�60per, and,,, buiifitca. 4w to cl i, Blee, Grenz, D ublic hearing at omments, Chair Lillehei asked u go about subdividing property ded to explain the preliminary Commission. Discussion mz asked if thi§"technically would be a re -plat. Mr. Morey S i ii g`Drdinance refers to preliminary plat and final plat. uire ask .hen' discussions take place regarding the }.. Ildings. Mr. Dempsey indicated that the Zoning Ordinance �ti�ruffer between commercial buildings. The City would not landscape buffer between the two lots. Mr. Dempsey of tFig2previous concerns of the owner of the office building of the trash enclosure, which was communicated to the trash enclosure was moved adjacent to the proposed • Chair" X- ehe c#arified that the applications being considered by the Planning Commiss�night are regarding the platting of property and the vacation of easements: • Parking requirements and the shared parking of the Hoppe Marketplace PUD was generally discussed. • Commissioner Boerschel asked for clarification that the Advanced Auto Parts proposal has met all Zoning Ordinance requirements. • Mr. Dempsey confirmed that City staff will review the site and building plans for compliance with Zoning Ordinance requirements as part of the administrative review of the building permit application. Planning Commission Meeting Minutes, April 4, 2013 Page 5 • Chair Lillehei clarified that the Planning Commission must make a recommendation on the plat and easement vacation and not on the Zoning Ordinance standards related to the building and site plan, which are an administrative review. • Commissioner Grenz still felt that the Planning Commission should address the size of the signs and whether there is any screening along CR 50. Mr. Dempsey explained that the signs and landscaping are reviewed administratively and the developer has met the Zoning Ordinance requirements. • There was continued discussion of what requir -es 'Planning Commission review and recommendation and what is reviewed administratively. • Commissioner Lillehei asked how shared parkings evaluated as part of a PUD. Mr. Dempsey responded generallk..N w s>laff ,reviews parking for individual uses within a PUD and specifij6,#y for the Hoppe µ Marketplace PUD. Staff is confident that parking in the :b rall Hoppe Marko tplace PUD will comply with Zoning Ordinance red.glrements given the proposed and possible future uses on the two lots in Hop arketglacd -T Addition. *- Motion was made by Drotning, seconded .. 1# laguire to recommend to City Council approval of the Hoppe,.-Mr- aketplace 3' d ``Qddation preliminary and final plat of two commercial lots, located easf of enwood Tra ,(County Road 50) at Jubilee Way, and the vacation of publiclrainageand utility easements, subject to the following four stipulations: ;.. 1. Implementatiorx.bf - the recommendations listed in` fhe April 12, 2013 engineering report 2. The site shaft be develo Ved accordir , to the preliminary and final plat plans 4: s �?.. �.g P ry P p approved by t b,City Goun'` I 3. An agreement opsharea' dnveWay access and parking shall remain in full force and;�fed all tirp?es between al( Pots in the Hoppe Marketplace and Hoppe Marketplace d - and` .�. , dditions. 4: �he site plan sra1� be s�rject to Planning Department approval for compliance ' 4With Zoning Ordinance requirements prior to the issuance of a building permit. A fir`s pal guaranteed bqual to the estimated cost and installation of landscape materials shall be s�r�'mitted prior to the issuance of a building permit. Ayes: Swensn,.Ig "e'schel, Lillehei, Blee, Drotning, Maguire Nays: Grenz �oiamissioner Grenz was willing to recommend approval of the 1 ,. preliminary plat only and not the final plat because normally the planning reports include information about parking, signs, etc. and these things were not included in the April 2, 2013 planning report. Chair Lillehei asked Commissioner Grenz if he understood that the Planning Commission was making a recommendation on a preliminary and final plat and the Planning Commission Meeting Minutes, April 4, 2013 Page 6 vacation of a public drainage and utility easement. Commissioner Grenz reiterated that he did not like that the planning report did not discuss the shared parking. 7. Cha \hn i opened the public hearing to consider the application of D. R. Horton for ing, located south of 188 Street on both the east and west sides of Kenrail (County Road 50): A. The preliminary plat of 53 single fam ily resits to be known as Stone Ridge. B. Zoning map „amendment to rezone proRS -2, Single Family Residential District to -� RS -3, Single Family Resi rict, and C. The vacation of public drainage and utility easements. The ng ecretary attested that the legal nofice Yiac1 been duly published in accwith to Statutes and City Code. Mike Suel of D. R. Hor`lQn, Inc. — Minnesota Associate Planner Frank Dempsey prey stated that D. R. Horton, I c. has app easement vacation to allow th developm known as Stone Ridge. Mr. Dempsey indicated that the fe inc be rezoned from RS -2, Single Farrel I Residential District to make, the property properties. He stated that #fie, rezoning south side of Kenwood Trai`j�_because. identified as 6&� 6t A located = = at the n proposed extensiort.,of 188' street beca with the adiacent arooerti ha# ,tinted an overvtavi% of their request. VµRA j' the planning report."""' eport ::fir Dempsey ir a,-,,,!:p, liminary plat, rezoning and 53 family residential lots to be allov� part of the subject property to eratial Di§Vict to RS -3, Single Family ing c- onsistent with adjacent developed not incliacle the area on the west and is already zoned RS -3, or the area :a corner of Kenwood Trail and the tha ill remain zoned RS -2 consistent Mr. I3empsey'exp a portion of the Stone Ri CIS a preliminary plat is located vi#hfri the ShorelA' Overla , istrict of Lake Marion. He ' dicated that all lots in the preliminary plat that *t locAaJn the Shoreland Overlay strict meet the minimum lot are width reauiremene Mr. Demp§ - qy reviewed the minimum lot and block requireniRnt§ and setback requirements: far the"AS -3, Single Residential District and how it It pertain to the Stone Ridge prelimjraary plat. Mr. Dempsey stated that Stone Ridge will be developed in two ph \ea explained that D. R. Horton plans to submit a final plat for all of the lot east of Kenwood Trail and will outlot the Jewel Court cul -de -sac lots o side of Kenwood Trail. The current owner of the property, Stone Ridg LLC, will retain ownership of the outlot on the south side of Kenwood T submit a separate final plat for those eight lots at a future date. CITY OF LAKEVILLE PARKS, RECREATION & NATURAL RESOURCES COMMITTEE MEETING MINUTES April 17, 2013 it Kelly called the meeting to order at 6:00 p.m. in Council Chambers at City Hall. Mem rs Present: Lori Bovitz, Tom Goodwin, Judy Hayes, Scott Kelly, Jeanne eter 'on, Bob Swan Members sent: Howard Lovelace, Jerry Zell Staff Presen • Parks & Recreation Director Brett Altergott, Natural Resources Manager Mac Cafferty, cording Secretary Patty Ruedy 2. Nomination an election of officers for 2013 Officers were wills to keep their positions for 2013. Peterson added that she would like to see re collaboration with City staff on the development of the meeting agendas as w as more idea generation by the committee. Motion made by Goodw ,seconded by Peterson to reinstate current officers to the Parks, Recreation &Nat al Resources Committee for 2013. Ayes: unanimous 3. Approval of April 3, 2013 minute Minutes were approved as presente . 4. Citizen comments There were no citizen comments. 5. LBA project proposals: King and Michaud P s Chuck Ryan from the LBA and staff reviewed th roposal by LBA to install four additional batting cages at King Park and construct outs at Michaud Park. Motion made by Hayes, seconded by Bovitz to appro updates and additions to King Park and Michaud Park as presented. Ayes: unanimous 6. Staff report Family Fun Fest on April 13 went great. Park Maintenance has n been able to open the fields due to weather. Over $6,300 was donated to the Herit a Center in the first quarter. Work has begun on finishing the retaining wall at Orchar ake; the project will include a shoreline restoration as well. South Creek Greenway ' dings will be presented to the committee in May or June. Park dedication fees 'I be r . 7. Hoppe Marketplace 3 rd Addition preliminary and final plat Staff reviewed the plat. Park dedication fees have already been collected. Motion made by Goodwin, seconded by Peterson to approve Hoppe Marketplace 3 rd Addition preliminary and final plat as presented by City staff. Ayes: unanimous s`u � �O. Lakle L Memorandum To: Planning Commission From: 77 Frank Dempsey, AICP, Associate Planner Date: / April 12, 2013 City of Lakeville Planning Department Subject: Packet Material for the April 18, 2013 Planning Commission Meeting Agenda Item: Hoppe Marketplace 3,d Addition Preliminary and final plat of two commercial lots to be known as Hoppe Marketplace 3rd Addition. 2. Vacation of public drainage and utility easements. Application Action Deadline: June 11, 2013 BACKGROUND Representatives of United Properties Investments, LLC have submitted applications for a preliminary and final plat and vacation of public drainage and utility easements for the development of two commercial lots on 1.72 acres. The subject property is currently platted as Lot 2, Block 1, Hoppe Marketplace 2 nd Addition and is zoned PUD, Planned Unit Development. The underlying zoning of the property is C -3, General Commercial District. The property is located east of Kenwood Trail (CSAH 50) and south of Jubilee Way. An Advance Auto Parts store is proposed to be constructed on one of the lots. The purpose of the public hearing is to receive public input regarding the preliminary and final plat and easement vacation. The proposed Advance Auto Parts store is a permitted use in the C -3 District. Staff will review the site and building plans for the Advance Auto Parts store and the future commercial use on Lot 2 with the building permit applications. The site plan and building elevations for the Advance Auto Parts store are attached for your information. The preliminary and final plat of Hoppe Marketplace was approved by the City Council on June 6, 2005. The preliminary and final plat of Hoppe Marketplace 2 " Addition was approved by the City Council on November 21, 2005. The Hoppe Marketplace 3rd Addition preliminary and final plat plans have been submitted to Engineering Division, the Parks and Recreation Department and the Dakota County Plat Commission. EXHIBITS A. Location and Zoning Map B. Aerial Photo C. Boundary Survey and Preliminary Plat D. Final Plat E. Site Plan and Grading, Drainage and Erosion Control Plan (2 Pages) F. Utility Plan G. Landscape Plan H. Building Elevation Plan I. Easement Vacation Sketch J. Letter from attorney representing Second Pointe, LLC, dated April 4, 2013 K. Dakota County Plat Commission letter dated March 15, 2013. Surrounding Land Uses North - Culvers Restaurant (PUD District). South - NTB Tire and Auto Repair (PUD District). East - Commercial office building including RE /MAX Real Estate (PUD District). West - Kenwood Trail (CSAH 50) and Southfork Apartments (RH -1 District). STAFF ANALYSIS PRELIMINARY AND FINAL PLAT Comprehensive Plan. The Hoppe Marketplace 3 Addition property is guided for Commercial uses in the 2008 Comprehensive Land Use Plan. The proposed commercial uses are consistent with the commercial designation of the Comprehensive Land Use Plan. Zoning. The Hoppe Marketplace 3rd Addition preliminary and final plat property is zoned PUD, Planned Unit Development District with an underlying C -3, General Commercial District zoning. 2 Consistency with the Capital Improvement Plan (CIP). No public street construction or other public funded infrastructure construction is proposed with the Hoppe Marketplace 3rd Addition preliminary and final plat. All City sanitary sewer and water improvements for the area of the Hoppe Marketplace 3rd Addition were installed by the developer with the Hoppe Marketplace and Hoppe Marketplace 2 " Addition developments. Lots /Blocks. The Hoppe Marketplace 3,d Addition preliminary and final plat proposes two lots on one block. The following C -3 District lot development requirements pertain to this preliminary and final plat. Minimum Lot Area: 20,000 square feet Minimum Lot Width: 100 feet Lot 1 Area: 36,590 square feet Lot 1 Width: 120 feet Lot 2 Area: 38,333 square feet Lot 2 Width: 131 feet Lots 1 and 2, Block 1, Hoppe Marketplace V Addition exceed the minimum lot requirements in the underlying C -3 District. Outlots. There are no outlots associated with the Hoppe Marketplace 3'd Addition preliminary and final plat. Streets. There is no new street construction proposed with the Hoppe Marketplace 3'd Addition preliminary and final plat. The property is adjacent to Kenwood Trail (CSAH 50) which is classified by the Comprehensive Transportation Plan as a Minor Arterial road. The property is accessed via shared private driveways from the intersection of Kenwood Trail and Jubilee Way. All required right -of -way for Kenwood Trail was dedicated with the Hoppe Marketplace and Hoppe Marketplace 2 Addition final plats. Pedestrian Ways. There is an existing concrete sidewalk along Kenwood Trail adjacent to the subject property. No new public trail or sidewalk construction is required with the Hoppe Marketplace 3rd Addition plat. Grading, Drainage, Erosion Control, and Utilities. Grading, drainage and erosion control plans have been submitted with the Hoppe Marketplace 3rd Addition preliminary and final plat. WSB Engineering Consultant Tom Kellogg and Mac Cafferty, Environmental Resources Manager have reviewed the grading, drainage and erosion control and utility plans. A copy of the engineering report dated April 12, 2013 is attached for your review. The Engineering Division recommends approval of the preliminary and final plat and easement vacation subject to the recommendations outlined in the report. Tree Preservation. There are no significant trees located on the subject property. Wetlands. There are no wetlands located on the subject property. Park Dedication. Park dedication for Hoppe Marketplace 3 d Addition was satisfied with the final plat of Hoppe Marketplace 2 " Addition with a combination of land dedication for a future greenway corridor adjacent to the property and a cash fee. The Parks, Recreation and Natural Resources Committee will review the Hoppe Marketplace 3 d Addition preliminary and final plat plans at their April 17, 2013 meeting. Their comments will be forwarded to the Planning Commission at the public hearing. Dakota County Plat Commission. The Dakota County Plat Commission reviewed and approved the preliminary and final plat of Hoppe Marketplace 3'd Addition at their March 11, 2013 meeting (Exhibit K). Attorney Letter. A letter has been submitted by an attorney representing Second Pointe, LLC dated April 4, 2013. Second Pointe, LLC owns the property and office building that includes RE /MAX real estate. EASEMENT VACATION Drainage and utility easements that were dedicated with Lot 2, Block 1, Hoppe Marketplace 2 Addition will be vacated and reestablished to correspond with the new utility locations proposed with the Hoppe Marketplace 3rd Addition final plat as shown on Exhibit I. The easements are being vacated to allow for the relocation of a sanitary sewer line to accommodate buildings on two separate lots. All utility companies with a potential interest in the proposed easement vacation were notified of the public hearing. There were no objections to the proposed easement vacation provided that new easements are established with the Hoppe Marketplace 3rd Addition final plat and that any costs associated with the relocation of the sanitary sewer line are incurred by the developer. RECOMMENDATION Planning Department staff recommends approval of the Hoppe Marketplace 3'd Addition preliminary and final plat and easement vacation subject to the following stipulations: 1. Implementation of the recommendations listed in the April 12, 2013, engineering report. 2. The site shall be developed according to the preliminary and final plat plans approved by the City Council. 3. An agreement for shared driveway access and parking shall remain in full force and effect at all times between all lots in the Hoppe Marketplace and Hoppe Marketplace 2 nd and 31d Additions. 4. The site plan shall be subject to Planning Department approval for compliance with Zoning Ordinance requirements prior to the issuance of a building permit. A financial guarantee equal to the estimated cost and installation of landscape materials shall be submitted prior to the issuance of a building permit. Attachments (plats /Hoppe Marketplace 3rd Addition) plGs v I G 'L 3 0 0 LLI o 'C -------- - - 175TH ST W >1 RS -2 7 O ....... ... 7 7 5 T7 1 -6 PUD W ER o tion of y C , S bje perty ST-1 NOS JAVELIN CT RHA -U-R-E-L-C, O-R RS-2 C_ 0 0 C T= A/, V PUD RS.3 183R ST-VV O 0 RM-i O lz 185TH ST W 0 0 ......... -IT A ... Viz- Dakota County, MN HOPPE , �. r ACE 3RD ADDITION O 7 Disclaimer: Map and parcel data are believed to be accurate, but accuracy is not guaranteed. This is not a Map Scale legal document and should not be substituted for a title search, appraisal, survey, or for zoning 1 inch = 124 feet verification. 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OHNSTAD THOMSEN NYBECK WILLIAM E M THOMAS R. KELLEY ELLEY ROBERT D. LUCAS ATTORNEYS AT LAW DAVID J. MCGEE ._._._.._-.__._.__..-. �_._.__._- ..._. ".__._....__.... _..._.__..... ...... __ DENNIS M. PATRICK E S T 1 9 7 2 GRETCHEN S. SCHELLHAS CHRISTOPHER P. RENZ MATTHEW A. DREWES UE COUNSEL BRAD J. BOYD DONALD D. SMITH LISA M. AMUNDSON JACK W. CARLSON NATALIE R. WALZ NATHAN J. KNOERNSCHILD HELGE THOMSEN SARAH B. BENNETT 19i° -1999 JAMES H. GEMPELER GLENN G. NYBECK 19%4 -2007 April 4, 2013 VIA U.S. AND CERTIFIED MAIL City of Lakeville Attn: Mr. Daryl Morey 20195 Holyoke Avenue Lakeville, MN 55044 VIA U.S. AND CERTIFIED MAIL Campbell Knutson, P.A. Attn: Roger Knutson, Esq. 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, MN 55121 Re: Second Pointe, LLC Building — 17850 Kenwood Trail, Lakeville, Minnesota Our File No. 13- 4 -042E Dear Mr. Morey and Mr. Knutson: This firm represents Second Pointe, LLC ( "Second Pointe ") in regards to the above - referenced property located at 17850 Kenwood Trail, Lakeville, Minnesota (the "Property "). The Second Pointe building accommodates a residential real estate brokerage firm doing business as RE /MAX Advantage Plus. As you may be aware, when my client purchased the Property from United Properties Investment, LLC, in 2006, my client was informed by United Properties and the City of Lakeville that the adjacent parcel legally described as Lot 2, Block 1, Hoppe Marketplace 2 " Addition (the "Subject Property ") was to be developed as a high -end, sit down restaurant. We are aware of an upcoming Planning Commission meeting wherein the issue of the development of this area will be discussed, and specifically the construction of an Advanced Auto Parts store. In an effort to bring some understanding to my client's position, I would like to provide a little background information. Representatives of Second Pointe looked at numerous other parcels of land in the Lakeville area, including the Subject Property. When my client looked at the Subject Property as a potential parcel for purchase, my client was informed by United Properties that the Subject Property would not work for a 2 -story building, such as the proposed RE /MAX Advantage Plus office building, and in addition, the parcel was to be developed as a high -end restaurant pursuant to an agreement between the developer and the City of Lakeville. It was and is my client's understanding that the entire development of Argonne Village_ Phase II was designed around the development of a high -end restaurant on the Subject Property as the focus of the commercial shopping area. United Properties' previous intention to construct a high -end, sit -down restaurant on the Subject Property is clearly evidenced by the materials provided by United EXHIBIT 3600 AMERICAN BOULEVARD WEST, SUITE 400, BLOOMINGTON MN 55431 (952) 835 -7000 - (952) 835 -9450 FAx • WWW.TN- LAW.COM Mr. Daryl Morey Mr. Roger Knutson, Esq. April 4, 2013 Page 2 Properties, the preliminary and final plat maps for Hoppe Marketplace 2nd Addition, and memoranda and notes of the City of Lakeville Planning Commission, all of which indicate that the Subject Property was to be developed as a sit -down restaurant. Moreover, the individual owners of Second Pointe had conversations with agents or representatives of United Properties confirming that the Subject Property would'in fact be used as a sit -down restaurant. With the Culver's fast -food restaurant nearby, my client was assured that the proposed restaurant would be a sit -down restaurant rather than a fast -food restaurant. The numerous and clear assurances made by United Properties and the City of Lakeville as to the proposed development of the Subject Property gave my client comfort in proceeding to spend almost three million dollars to purchase and develop the Property. Bob Erickson, the former City of Lakeville Administrator, stated in meetings that there would be nothing on the proposed site but a "sit down" restaurant. Based on the foregoing, you can imagine my client's shock and dismay upon learning of United Properties' intention to develop the Subject Property as an Advanced Auto Parts building, and the City of Lakeville's apparent willingness to accommodate United Properties' request. My client relied on the representations and warranties made by United Properties and the City of Lakeville in purchasing the Property and believed that a restaurant would be developed on the Subject Property. In purchasing the Property, my client believed that it would neighbor a sit -down restaurant in the future, which would be of the same or similar architectural requirements under the Development Agreement. However, if the proposed development of the Subject Property is approved, the Second Pointe building will face the rear of the Advanced Auto Parts building, which will likely have a negative effect on the Property's value for tenants of Second Pointe as well as for the individual owners of Second Pointe. For these reasons, my client is understandably concerned and therefore requests that City of Lakeville deny the application submitted by United Properties for the preliminary and final plat of Hoppe Marketplace 3` Addition. Approval of said application by the City of Lakeville will result in the construction of an Advanced Auto Parts building on the parcel designated for a high -end, sit down restaurant with the effect of dishonoring the representations and warranties made to my client regarding the development of a high -end restaurant on the Subject Property. In the event the application of United Properties is approved, my client will have no choice but to pursue any and all legal remedies available to it in order to either attempt to stop the construction or fairly compensate my client for the damage it will suffer. As an alternative solution, my client is willing to work cooperatively with United Properties and the City of Lakeville to reach a mutually satisfactory arrangement. Mr. Daryl Morey Mr. Roger Knutson, Esq. April 4, 2013 Page 3 We are hopeful that the parties are able to reach a mutually agreeable resolution of this matter. Please contact me at your earliest convenience to discuss the foregoing. Very trul!Gee Attorney at Law DJM /sbb Dakota County Surveyor's Office Western Service Center - 14955 Galaxie Avenue suite p 335 • Apple Valley, MN 55124 952- 891 -7087 • Fax 952- 891 -7127 • www.dakotacounty.us March 15, 2013 City of Lakeville 20195 Holyoke Avenue Lakeville, MN 55044 Re: HOPPE MARKETPLACE 3 ADDITION The Dakota County Plat Commission met on March 11, 2013, to consider the preliminary plan of the above referenced plat. The plat is adjacent to CSAH 50, and is therefore subject to the Dakota County Contiguous Plat Ordinance. This property is currently platted as Lot 2, Block 1, HOPPE MARKETPLACE 2 ND ADDITION. The proposal includes a replat of the property into two commercial lots. The existing right of way meets the future needs. Restricted access is shown along all of CSAH 50. The Plat Commission has approved the preliminary and final plat and will recommend approval to the County Board of Commissioners when the plat is submitted in signed mylar form. Mylars should be submitted to the County Board within one year of the Plat Commission's final approval. No work shall commence in the County right of way until a permit is obtained from the County Transportation Department and no permit will be issued until the plat has been filed with the County Recorder's Office. The Plat Commission does not review or approve the actual engineering design of proposed accesses or other improvements to be made in the right of way. The Plat Commission highly recommends early contact with the Transportation Department to discuss the permitting process that reviews the design and may require construction of highway improvements, including, but not limited to, turn lanes, drainage features, limitations on intersecting street widths, medians, etc. Please contact Gordon McConnell regarding permitting questions at (952) 891 -7115 or Todd Tollefson regarding Plat Commission or Plat Ordinance questions at (952) 891 -7070. Sincerely, �d Todd B. Tollefson Secretary, Plat Commission EXHIBIT K City of Lakeville Public Works— Engineering Division To: Frank Dempsey, Associate Planner From: Tom Kellogg, WSB & Associates Mac Cafferty, Environmental Resources Manager Copy: Zachary V. Johnson, City Engineer Gene Abbott, Building Official Dennis Feller, Finance Director Brett Altergott, Parks and Recreation Director Date: April 12, 2013 Subject: Hoppe Marketplace 3 rd Addition • Preliminary Plat Review • Final Plat Review • Final Erosion Control Plan Review • Final Grading Plan Review • Final Utility Plan Review BACKGROUND United Properties has submitted a preliminary and final plat named Hoppe Marketplace 3rd Addition. The proposed commercial subdivision is located on Lot 2, Block 1, Hoppe Marketplace 2nd Addition plat approved by the City Council on November 21, 2005. The site is adjacent to CSAH 50. The proposed plat is 1.72 acres in area. The current zoning is PUD. The proposed plat will consist of two commercial lots in one block. The parent plat of Hoppe Marketplace dedicated the right -of -way for CSAH 50 that is included in Lakeville Right -of -Way Map #4. The proposed improvements will be completed by: Owner: United Properties Developer: United Properties Engineer /Surveyor: Westwood Professional Services, Inc. SITE CONDITIONS The site is moderately sloped and drains from south to north. The site was mass graded with the Hoppe Marketplace Addition. HOPPE MARKETPLACE 3 RD ADDITION APRIL 12, 2013 PAGE 2 OF 5 SUBDIVISION LAYOUT The access to Hoppe Marketplace 3 Addition will be from the private ring road constructed with Argonne Village and Hoppe Marketplace. No direct access to CSAH 50 is allowed. The major private ring road access point to CSAH 50 is the previously constructed connection opposite the northern leg of Jubilee Way. In 2010 the parent parcel of this proposed two lot subdivision was assessed $10,778.80 for the installation of the traffic signal at the intersection of Jubilee Way and CSAH 50. The current 2013 payoff of this assessment for the proposed two lot subdivision is $6,467.28 and shall be collected at the time of final plat approval. CONSTRUCTION ACCESS Construction access and egress to Hoppe Marketplace 3 Addition must be at the existing main driveway to CSAH 50 opposite Jubilee Way. PARKS AND TRAILS The park dedication fee was collected with the Hoppe Marketplace 2nd Addition final plat. No additional park dedication fees are due with the Hoppe Marketplace 3 Addition final plat. UTILITIES SANITARY SEWER A public sanitary sewer was constructed across Lot 2, Block 1, Hoppe Marketplace 2 Addition. The sanitary sewer alignment conflicts with the proposed improvements on Lot 1, Block 1, Hoppe Marketplace 3 rd Addition and will need to be relocated within the lot. The existing easement over the sanitary sewer within Lot 2, Block 1, Hoppe Marketplace 2 Addition will be vacated and new easements will be dedicated with the final plat of Hoppe Marketplace 3` Addition. The developer shall provide a cash escrow of $ 16,700.00 for the sanitary sewer public improvements as shown in the engineer's estimate dated April 11, 2013. The Sanitary Sewer Trunk Area Charge was paid at the time of Hoppe Marketplace 2 Addition final plat approval. WATERMAIN Aprivate 8 -inch watermain stub was constructed to serve this site as part of the Hoppe Marketplace 2' Addition improvements. No additional public watermain improvements are necessary to serve Lot 1, Block 1, Hoppe Marketplace 3 Addition. The hydrant, gate valve and water service improvements to this site are private and shall be maintained by the owner. HOPPE MARKETPLACE 3 RD ADDITION APRIL 12, 2013 PAGE 3 OF 5 DRAINAGE AND GRADING Stormwater treatment for Hoppe Marketplace 3 rd Addition is provided by a permanent stormwater basin constructed with Hoppe Marketplace. Existing storm sewer on Lot 2, Block 1, Hoppe Marketplace 2 Addition will need to be relocated to support the proposed improvements to Lot 1, Block 1, Hoppe Marketplace 3 rd Addition. No easement vacations or dedications are necessary for the storm sewer relocation because the storm sewer system is private. The proposed parking lot grades exceed the City of Lakeville maximum grades of 5% in some locations and will need to be revised to comply with City standards. The final grading plan must identify all fill lots in which the building footings will be placed on fill material. The grading specifications must indicate that all embankments meet FHA/HUD 79G specifications. The Developer shall certify to the City that all lots with building footings placed on fill material are appropriately constructed. Building permits will not be issued until a soils observation and testing report has been submitted to the Building Official and an as -built certified grading plan, including the buffer yard berms along Holyoke Avenue have been submitted and approved by City staff. Any grading or temporary turn- around construction north of the plat boundary will require easements from the adjacent property owner prior to construction. A National Pollution Discharge Elimination System General Stormwater Permit for construction activity is required from the Minnesota Pollution Control Agency for areas exceeding one acre being disturbed by grading. A copy of the Notice of Stormwater Permit Coverage must be submitted to the City upon receipt from the MPCA. STORM SEWER The storm sewer area charge was paid at the time of Hoppe Marketplace 2nd Addition final plat approval. WF.TI . A Nn.q There are no wetlands on this site. TREE PRESERVATION There are no significant trees on this site. EROSION CONTROL The erosion control plan was reviewed and includes the following: • Rock construction entrance are shown on the plan sheets and included in the erosion control notes. • A seed/mulch specification that meets City requirements. • Erosion control will be installed to protect offsite areas from sediment transport. • Streets must be cleared of debris at the end of each day. • Inlet protection is identified on the plans. HOPPE MARKETPLACE 3 1D ADDITION APRIL 12, 2013 PAGE 4 OF 5 Additional erosion control measures may be required during construction as deemed necessary by City staff or the Dakota County Soil and Water District. Additional measures shall be installed and maintained by the developer. SECURITIES The Developer shall provide a Letter of Credit as security for the Developer - installed public improvements relating to Hoppe Marketplace P Addition. Construction costs for the sanitary sewer work are based upon estimates submitted by the Developer's engineer on April 11, 2013. Cost estimates for the signing and erosion control were provided by Lakeville Public Works and Environmental Services. CONSTRUCTION COSTS Sanitary Sewer On -Site Private Signing and Pavement Markings Erosion Control, Restoration, Grading and Grading Certification SUBTOTAL - CONSTRUCTION COSTS OTHER COSTS Developer's Design (6.0 %) Developer's Construction Survey (2.5 %) City's Legal Expense (0.5 %) City Construction Observation (7.0 %) Developer's Record Drawing (0.5 %) Landscaping Lot Corners /Iron Monuments SUBTOTAL - OTHER COSTS TOTAL PROJECT SECURITY $ 16,700.00 1000.00 2,000.00 $ 19,700.00 $ 1,182.00 492.50 98.50 1,379.00 98.50 8,000.00 200.00 $ 11,450.50 $ 31,150.50 The Developer shall post a security to ensure the final placement of iron monuments at property corners with the final plat. The security is $100.00 per lot /outlot for a total of $200.00. The City shall hold this security until the Developer's land surveyor certifies that all irons have been placed following site grading, and parking lot and utility construction. CASH FEES A cash fee for one -year of streetlight operating expenses was paid with the Hoppe Marketplace 2 °d Addition final plat and no street light operating expenses will be collected with this final plat. A cash fee for one -year of surface water management expenses was paid with the Hoppe Marketplace 2 °a Addition final plat and no surface water management expenses will be collected with this final plat. HOPPE MARKETPLACE 3 RD ADDITION APRIL 12, 2013 PAGE 5 OF 5 A cash fee for the preparation of record construction drawings and for upgrading the City base map will be paid with the final plat and is calculated as follows: 2lots x $75.00 /unit = $150.00 Lots City Base Map Updating Fee Total The Developer must submit the final plat and construction drawings in an electronic format. The electronic format must be either a .dwg file (AutoCAD) or a .dxf file. The Developer must also pay a cash fee for City Engineering Administration. The fee for City Engineering Administration will be based on three percent (3.00 %) of the estimated construction cost, or $591.00. CASH REQUIREMENTS Assessment (221270) City Base Map Updating Fee City Engineering Administration (3.00 %) SUBTOTAL - CASH REQUIREMENTS TOTAL CASH REQUIREMENTS RECOMMENDATION $ 6,467.28 150.00 591.00 $7,208.28 $7,208.28 Engineering staff recommends approval of the preliminary plat, easement vacation, final plat, utility plan, grading plan, and erosion control plan for Hoppe Marketplace 3 rd Addition, subject to the requirements and stipulations within this report and the following: • The parking lot grading shall be revised to conform to the City standards minimum and maximum grades of 1.0% and 5.0 %.