PLANNED UNIT DEVELOPMENT AGREEMENT AND CONDITIONAL …

(reserved for recording information)

PLANNED UNIT DEVELOPMENT AGREEMENT AND CONDITIONAL USE PERMIT PHASE 1 – THIRD AMENDMENT

ARDEN PLAZA (PC# 15-002)

THIS PLANNED UNIT DEVELOPMENT AGREEMENT AND CONDITIONAL

USE PERMIT – PHASE 1 – THIRD AMENDMENT (“Agreement”) is dated effective May

______, 2015, and is entered into by and between the CITY OF ARDEN HILLS, a Minnesota

statutory city (“City”); and ARDEN PLAZA, LLC, a Minnesota limited liability corporation

(“Arden Plaza”).

1. RECITALS.

A. Arden Plaza is the record fee owner of property situated in the County of Ramsey,

State of Minnesota, and legally described as:

Lot 2, Block 1, Arden Plaza Lot 3, Block 1, Arden Plaza

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(the “Property”). Said site is for future development pursuant to the terms of an Amended and

Restated Master Planned Unit Development Agreement and Phase I Development Contract

(Planning Case #14-016).

B. On the 5th day of January, 2015, Wellington Management, Inc., on behalf of

Arden Plaza, submitted an application requesting that the City approve a Preliminary and Final

Plat, a Planned Unit Development Amendment and a Conditional Use Permit Amendment for the

Property (“Application”). The Application requested Council approval for a subdivision of Lot

3, Block 1, Arden Plaza into three parcels, increasing the footprint of Building #4 to be

constructed in Phase III, modifying the parking lot at the north and south ends of the retail

center, and the expansion of the Frattallone’s Ace Hardware seasonal garden center.

C. The Application is illustrated and described on the following documents, attached

and incorporated as part of Planning Case 15-002, on file and recorded at the City of Arden

Hills:

1. Cover Sheet, dated 01/05/15, as revised on 03/27/15

2. Existing Conditions, dated 01/05/15, as revised on 03/27/15

3. Preliminary Plat, dated 01/05/15, as revised on 03/27/15

4. PUD Master Site Plan, dated 01/05/15, as revised on 04/09/15

5. Frattallone’s Garden Center Plan, dated 01/05/15, as revised on 04/09/15

6. PUD Grading, Drainage, and Erosion Control Plan, dated 01/05/15, as revised on

03/27/15

7. PUD Utility Plan, dated 01/05/15, as revised on 03/27/15

8. PUD Parking and Circulation Plan, dated 01/05/15, as revised on 04/09/15

9. Garden Center Exhibit, dated 04/15/15

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2. PLANNING COMMISSION REVIEW. On the 4th day of February, 2015, the

City Planning Commission reviewed the Application at a public hearing and after considering

the application, the reports and comments of the City’s staff, the reports and comments of Arden

Plaza, and other public comments, and subject to conditions, recommended approval of the

Application.

3. CITY COUNCIL REVIEW.

A. On the 30th day of March, 2015, the Arden Hills City Council reviewed the

recommendations of the Planning Commission; the materials and comments submitted by City

staff and the its consultants; and the materials and comments submitted by Arden Plaza and its

consultants. At the conclusion of its review, the City Council approved the subdivision and

Preliminary Plat for “ARDEN PLAZA 2ND ADDITION” and a Planned Unit Development

Amendment which accounted for the subdivision, increased the footprint of Building #4, and

modified the parking lot at the north and south end of the retail center, all subject to the terms

and conditions contained herein.

B. On the 13th day of April, 2015, the Arden Hills City Council reviewed the

recommendations of the Planning Commission; the materials and comments submitted by City

staff and the its consultants; and the materials and comments submitted by Arden Plaza and its

consultants. At the conclusion of its review, the City Council approved a Conditional Use

Permit Amendment and a Planned Unit Development Amendment to expand the overall area of

the operating garden center on the Property and to make minor modifications to the parking area,

all subject to the terms and conditions contained herein.

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4. TERMS AND CONDITIONS. In consideration of the undertakings herein

expressed and in compliance with the City’s Development Regulations, the parties agree as

follows:

A. Conditional Use Permit for Planned Unit Development. The City has agreed to

grant Arden Plaza an amendment to its Conditional Use Permit to expand the overall area of the

previously approved and operating garden center upon the following conditions:

1. The square footage for the seasonal garden center will measure 155 feet by

61 feet for a total square area of 9,455 square feet. The total area includes the space underneath

the building canopy that is now used for outdoor sales year-round and the five foot display curb

along the north and east perimeter of the garden center.

2. The exterior storage area along the south side of the retail center building

will measure approximately 150 feet long by 12 feet wide and shall be limited to materials and

products directly associated with the approved garden center use.

3. The garden center site shall be maintained and the business operated

pursuant to the Garden Center Exhibit which has been approved by the City of Arden Hills

(Exhibit A).

4. The garden center shall be an extension of and consistent with the permitted

principal use and shall be used exclusively for the seasonal sale of nursery and garden items,

including, but not limited to, flower, plants, landscaping materials, and Christmas trees.

5. No person will store any hazardous materials within the storage area,

depicted on the plans, along the south side of the retail center building, and no storage will be

allowed to block the egress doors.

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6. The fence around the perimeter of the seasonal garden center shall be made

of wrought iron materials and shall not exceed six (6) feet in height. No exterior signage shall be

attached to the fence around the seasonal garden center.

7. No storage, displays, or sales shall be permitted outside of the seasonal

sales area. Exterior storage and outdoor display and sales shall only be permitted on Lot 3, Arden

Plaza 2nd Addition.

8. The site shall be kept in a neat and orderly fashion, free from litter, refuse,

debris, junk, or other waste which results in offensive odors or unsightly conditions.

9. Arden Plaza shall install, at the City’s discretion, up to $20,000 of

additional landscaping or other type of screening to screen storage along the south and west side

of the property within the first three years of full operations following an annual review by the

City Council. Staff will provide the City Council with an update on the site operations at the

regularly scheduled April Work Session meeting. The City Council will base the need for

additional screening on an evaluation of complaint and code violation history, if any.

Landscaping or screening may be installed on the property or on adjacent properties. Prior to the

issuance of any development permits, Arden Plaza shall provide the City with a Letter of Credit

in the amount of $20,000 issued by a FDIC-insured Minnesota bank. If Arden Plaza refuses to

comply with the direction provided by the City, the City may without further notice enter the

property and place the additional landscaping or screening and draw upon the Letter of Credit.

B. Final Plat.

1. Arden Plaza shall file the Final Plat of Arden Plaza 2nd Addition with

Ramsey County within 180 days of the date of the City’s approval of the Final Plat, or prior to the

issuance of any development permits related to the construction of the garden center, whichever

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event occurs first, or the City’s approval shall expire unless extended by approval from the City

Council. An extension request must be submitted in writing to the City at least forty-five (45)

days prior to the expiration date.

2. City Council approval of the Final Plat shall be conditioned on the

demising wall construction between the Frattallone’s Hardware store and the remainder of the

Arden Plaza retail building receiving final approval from the City Building Official.

3. Prior to the execution of the Final Plat, a copy of the supplemental

declaration between Frattallone’s Hardware and Arden Plaza, LLC addressing the issues of

drainage and driveway maintenance shall be provided to the City.

4. Prior to the execution of the Final Plat, a copy of an agreement addressing

the Sewer and Water services provided to Lot 3, Arden Plaza 2nd Addition through the building

on Lot 2, Arden Plaza 2nd Addition shall be provided to the City.

5. Prior to the execution of the Final Plat, a copy of an agreement addressing

the operation, maintenance, and ownership of all sanitary sewer, water, and storm sewer within

the development, and the process by which future land use applications will be submitted to the

City for properties within the development, shall be provided to the City.

C. PUD-Master Plan.

1. Arden Plaza shall implement the requirements recommended in the January

29, 2015 letter from Dave Scherbel, Building Official; Tim Boehlke, Lake Johanna Fire Chief, and

Rick Current, Lake Johanna Fire Marshal (Exhibit B).

2. The operations of the Bio-Filtration Area #2 identified on the Master Site

Plan shall be corrected to the satisfaction of the City Engineer prior to the issuance of any

development permits related to the construction of the garden center.

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3. Arden Plaza shall install evergreen plantings along the west property line

of Lot 3, Arden Plaza 2nd Addition to provide additional screening of the trash and recycling

collection area associated with the Frattallone’s Ace Hardware portion of the retail center

building.

4. The City currently holds a Letter of Credit (American Bank Letter of

Credit No. 2527) for the patching and seal coating of the parking lot next to the Frattallone’s

Hardware store. Arden Plaza shall complete these improvements by September 30, 2015 or the

LOC maturity date shall be extended.

5. Arden Plaza shall construct the main parking area and landscaping

improvements previously planned for Phase I prior to the issuance of a Certificate of Occupancy

for either Building #2 or Building #4.

D. Previous Agreements. The applicant shall continue to abide by the conditions of

all previous Development Agreements, Master PUD and Final PUD for Phase I approvals,

permits, and reviews, except as hereinafter amended.

E. Required Improvements. The project shall be completed in accordance with the

submitted plans as amended by the conditions of approval. Any significant changes to these

plans, as determined by the City Planner, shall require review and approval by the Planning

Commission and City Council.

F. Required Permits. The applicant shall obtain all necessary permits, including

but not limited to, NPDES, Rice Creek Watershed District, Ramsey County, and City Grading

and Erosion Control Permits. Copies of all necessary permits shall be submitted to the City prior

to the issuance of any development permits.

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G. Security. Arden Plaza shall submit a financial surety in the amount of 125% of

the estimated costs of site improvements including grading, utilities, paving, and fence

installation prior to the issuance of any development permits related to the construction of the

seasonal garden center area. The financial surety shall be in the form of a letter of credit issued

by a FDIC-insured Minnesota bank, and be in the form acceptable to the City. The purpose of

the letter of credit is to ensure that site improvements are completed in the event of a default by

Arden Plaza.

H. Escrow. Arden Plaza shall submit a cash escrow in the amount of 25% of the

estimated costs of site improvements including grading, utilities, paving, and fence installation

prior to the issuance of any development permits related to the construction of the seasonal garden

center area. The escrow will be used for City costs related to review, approval, and inspection of

site improvements or any costs incurred by the City in the event of a default by Arden Plaza.

I. Binding Effect. The terms and provisions of this Agreement shall be binding

upon and inure to the benefit of the heirs, representatives, successors and assigns of the parties

hereto and shall be binding upon all future owners of all or any part of the Property. This

Agreement, at the option of the City, shall be placed of record so as to give notice thereto to

any subsequent purchasers and encumbrances of all or any part of the Property and all

recording fees, if any, shall be paid by the Arden Plaza.

J. Default. The occurrence of any of the following shall be considered an “Event

of Default” in the terms and conditions contained in this Agreement:

1. Failure of Arden Plaza to comply with any of the terms and conditions contained in this Agreement.

2. The failure of Arden Plaza to comply with any applicable ordinance or

statute with respect to the development of the Property.

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K. Remedies. Upon the occurrence of any Event of Default, the City, in addition to

any other remedy which may be available to it, shall be permitted to do any of the following:

1. City may make advances or take other steps to cure the default, and, where necessary, enter the Property for that purpose. Arden Plaza shall pay all sums so advanced or expenses incurred by the City, upon demand, with interest from the dates of such advances or expenses at the rate of 10 percent per annum. No action taken by the City pursuant to this section shall be deemed to relieve Arden Plaza from curing any such default to the extent that it is not cured by the City or from any other default hereunder. The City shall not be obligated, by virtue of the existence or exercise of this right, to perform any such act or cure any such default. Arden Plaza shall save, indemnify, and hold harmless, including reasonable attorney fees, the City from any liability or other damages which may be incurred as a result of the exercise of the City's rights pursuant to this section.

2. Obtain an Order from a Court of competent jurisdiction requiring Arden

Plaza to specifically perform its obligations pursuant to the terms and provisions of this Agreement.

3. Exercise any other remedies which may be available to it including an

action for damages.

4. Withhold the issuance of any or all building permits and/or prohibit the occupancy of all building(s) for which permits have been issued.

5. In addition to the remedies and amounts payable as set forth herein, upon

the occurrence of an Event of Default, Arden Plaza shall pay to the City all fees and expenses, including reasonable attorney, engineering and consulting fees, incurred by the City as a result of the Event of Default, whether or not a lawsuit or other action is formally taken.

IN WITNESS WHEREOF, the above-named parties have caused this Agreement to be

executed as of the date and year first above written.

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CITY OF ARDEN HILLS By: ______________________________________ David Grant, Mayor (SEAL) And _____________________________________ Amy Dietl, City Clerk STATE OF MINNESOTA ) ( ss. COUNTY OF RAMSEY ) The foregoing instrument was acknowledged before me this _______ day of May, 2015, by David Grant and by Amy Dietl, respectively the Mayor and City Clerk of the City of Arden Hills, a Minnesota statutory city, on behalf of the City and pursuant to the authority granted by its City Council. __________________________________________ Notary Public

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ARDEN PLAZA, LLC A Minnesota Limited Liability Company By: ______________________________________ Stephen B. Wellington, Chief Manager STATE OF MINNESOTA ) ( ss. COUNTY OF RAMSEY ) The foregoing instrument was acknowledged before me this _______ day of May, 2015, by Stephen B. Wellington, the Chief Manager of Arden Plaza, LLC, a Minnesota limited liability company, on behalf of the limited liability company. __________________________________________ Notary Public DRAFTED BY: Campbell Knutson Professional Association 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, Minnesota 55121 Telephone: (651) 452-5000 (JJJ)

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MORTGAGE CONSENT TO

PLANNED UNIT DEVELOPMENT AGREEMENT AND CONDITIONAL USE PERMIT PHASE 1 – THIRD AMENDMENT

ARDEN PLAZA (PC# 15-002) AMERICAN BANK OF ST. PAUL, which holds mortgage on the property, situated in the County of Ramsey, State of Minnesota, and legally described as:

Lot 2, Block 1, Arden Plaza Lot 3, Block 1, Arden Plaza

which mortgage was recorded as Ramsey County document number 1803193, the development of which is governed by the Planned Unit Development Agreement Phase 1 – Second Amendment to Development Agreement (PC #11-016) by and between the City of Arden Hills and Arden Plaza, LLC dated October 10, 2011, agrees that the Planned Unit Development Agreement shall remain shall remain in full force and effect even if it forecloses on its mortgage. Dated this _____ day of ____________, 20__. AMERICAN BANK OF ST. PAUL By: ______________________________________ _____________________________ [print name] Its ___________________________ And ______________________________________ _____________________________ [print name] Its _____________________________

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STATE OF MINNESOTA ) ( ss. COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this _____ day of ____________ 20__, by ______________________________ and by ______________________________ the _____________________ and __________________, respectively, of AMERICAN BANK OF ST. PAUL, on behalf of said corporation. ________________________________________ Notary Public DRAFTED BY: Campbell, Knutson Professional Association 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, Minnesota 55121 Telephone: (651) 452-5000 (JJJ)

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EXHIBIT A To

THIRD AMENDMENT TO PLANNED UNIT DEVELOPMENT AGREEMENT AND CONDITIONAL USE PERMIT – PHASE 1

ARDEN PLAZA

(Planning Case #15-002)

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7699 Anagram DriveEden Prairie, MN 55344

Phone (952) 937-5150Fax (952) 937-5822Toll Free (888) 937-5150

EXHIBIT B To

THIRD AMENDMENT TO PLANNED UNIT DEVELOPMENT AGREEMENT AND CONDITIONAL USE PERMIT – PHASE 1

ARDEN PLAZA

(Planning Case #15-002)

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January 29, 2015 Re: 3527 Lexington Ave: This letter is a review of a request for a proposed alternate to the State Building code at 3527 Lexington Ave. The purpose of the proposed code alternate is to divide an existing building and parcel into two distinct separate buildings and parcels. The 2007 MN state building code per the 2006 IBC requires walls located on property lines, that separate buildings, to be constructed as a fire wall. The existing wall is not built as a fire wall, but could be altered to comply with a 2 hour fire barrier wall. The proposed code alternate uses IBC Section 402,which refers to covered mall buildings. The proposed alternate is to apply section 402 to a strip or open mall. While section 402 of the 2006 IBC refers only to covered mall buildings, staff feels that an open, or strip mall is no more hazardous than a covered mall. In fact, it is more likely safer than an enclosed mall. It is proposed to use IBC section 402.7.4, as amended by the state, which allows an anchor building in a covered mall to be separated by a fire barrier instead of a fire wall. Additionally, MN State building code section 402.7.4, allows property lines to be platted between the anchor building and the rest of the mall with certain conditions. Section 402.7.4 also states that both buildings/parcels need to comply with all applicable provisions of the state building code. Section 402.8 of the state building code requires mall buildings to be fire sprinkler protected. Arden Plaza currently is only 65% fire sprinkler protected. The owners of the mall are proposing to extend a fire sprinkler main pipe through the unsprinklered tenant portions of the building. The individual tenant spaces will then be fully sprinklered as the tenant spaces changes ownership. City staff, along with the Lake Johanna Fire Department, have reviewed this project and have the following requirements for this project to move forward.

1. The wall separating the hardware store from the rest of the building needs to be a fully compliant two hour fire barrier with no openings.

2. Plans submitted do not show the fire wall including the loading dock area.

Resubmit plans showing the loading dock included with the hardware store and separated from the remainder of the building by a fire barrier.

3. Verify the mezzanine in Ace hardware complies with type of construction for a

type IIB.

4. Provide plans and specifications for the extension of the fire suppression main through the portion of the building currently not fire sprinklered.

City of Arden Hills ▪1245 West Highway 96 ▪ Arden Hills Minnesota 55112

Phone 651.792.7800 ▪ Fax 651.634.5137 ▪ www.ci.arden-hills.mn.us

5. The fire suppression main piping is to be completed before final approval of the plat for closing or an escrow for 125% of the installation will be required.

6. Each individual tenant space currently not fire sprinklered will be brought fully compliant according to NFPA 13 upon any of the following conditions. 1) A new tenant. 2) The tenant space is altered or remodeled more than 50% of the space. 3) The tenant space is expanded.

7. Recorded with each of the deeds are agreements that require the buildings divided by property lines to be in conformance with the applicable provisions of the state building code, as if the buildings were a single building on a single piece of property. In addition, the agreement must state that no individual building or property owner may modify any portion of the building in any way that would not comply with the state building code. (Per IBC 402.7.4 as amended by the state)

8. All current life safety measures, both active and passive to be fully operational as originally installed. This includes but not limited to, all penetrations and or alterations to existing fire ratings of walls, corridors, and floor systems. They are to be inspected and repaired to the buildings original condition.

9. The installation of a fully addressable fire detection and alarm system according to NFPA 72 throughout the building. Fire Dept. to approved plans prior to installation.)

10. Attached are the related code sections and code analysis plan of Arden Plaza

11. Both the City and Fire Department to inspect and approve the above items before

issuance of any certificate of occupancy. Sincerely, Dave Scherbel, Building Official Tim Boehlke, Lake Johanna Fire Chief Rick Current, Lake Johanna Fire Marshal

City of Arden Hills ▪1245 West Highway 96 ▪ Arden Hills Minnesota 55112

Phone 651.792.7800 ▪ Fax 651.634.5137 ▪ www.ci.arden-hills.mn.us