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HomeMy WebLinkAboutCity Council - 02/03/2010 AGENDA SPECIAL EDEN PRAIRIE CITY COUNCIL MEETING WEDNESDAY, FEBRUARY 3, 2010 5:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Phil Young, Council Members Brad Aho, Jon Duckstad, Kathy Nelson, and Ron Case CITY STAFF: City Manager Scott Neal, Recorder Lorene McWaters I. ROLL CALL / CALL THE MEETING TO ORDER II. ORDINANCES & RESOLUTIONS A. WAL-MART by the Benham Company. Second Reading of the Ordinance for Zoning District Amendment in the Commercial Regional Service District on 16.86 acres, Resolution for Site Plan Review on 16.86 acres. Location: 12195 Singletree Lane. (Ordinance for Zoning District Amendment; Resolution for Site Plan Review) III. ADJOURNMENT ANNOTATED AGENDA SPECIAL EDEN PRAIRIE CITY COUNCIL MEETING WEDNESDAY, FEBRUARY 3, 2010 5:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Phil Young, Council Members Brad Aho, Jon Duckstad, Kathy Nelson, and Ron Case CITY STAFF: City Manager Scott Neal, Recorder Lorene McWaters I. ROLL CALL / CALL THE MEETING TO ORDER II. ORDINANCES & RESOLUTIONS A. WAL-MART by the Benham Company. Second Reading of the Ordinance for Zoning District Amendment in the Commercial Regional Service District on 16.86 acres, Resolution for Site Plan Review on 16.86 acres. Location: 12195 Singletree Lane. (Ordinance for Zoning District Amendment; Resolution for Site Plan Review) Synopsis: This is final approval of plans and the development agreement for an addition to Walmart, including a new truck dock for expanded groceries and other site improvements. On January 19, 2010, Walmart submitted an extension to the 120 days for City consideration of their application until February 16, 2010. However, Walmart requested earlier consideration if staff and Walmart were able to come to agreement on a development agreement before that date. Based upon the staff recommendation and Council direction during the February 19th workshop, all references to a Special Service District have been removed from the agreement. Provisions requiring Walmart to pay a fair share for streetscape improvements to Singletree Lane have been retained. However, the median estimate of cost has been used instead of the upper estimate. A cash escrow has been used rather than special assessments based upon Walmart’s preference. Provisions requiring Walmart to pay a fair share for streetscape improvements to Prairie Center Drive have been removed to make the cash escrow more affordable within Walmart’s project budget. The City could special assess for the Prairie Center Drive improvements in the future. The development agreement includes a concession that Walmart does not have to add brick to the existing rear of the building, which is currently nonconforming. This concession is also to help Walmart afford the cash escrow for the Singletree streetscape improvements within their project budget. Staff believes the streetscape improvements will have higher public benefit than the brick on the rear of the building. Other minor amendments have been made to the development agreement at the request of Walmart and agreement by staff and the City Attorney. CITY COUNCIL AGENDA February 3, 2010 Page 2 MOTION: Move to: • Approve 2nd • Site Plan Review on 16.86 acres; and Reading of the Ordinance for Zoning District Amendment in the Commercial Regional Service Zoning District on 16.86 acres; and • Approve the Development Agreement for Wal-Mart III. ADJOURNMENT MOTION: Move to adjourn the City Council meeting. CITY COUNCIL AGENDA SECTION: Ordinances and Resolutions DATE: February 3, 2010 DEPARTMENT/DIVISION: Community Development/Planning Janet Jeremiah Michael Franzen ITEM DESCRIPTION: Walmart ITEM NO.: II.A. Requested Action Move to: • Approve 2nd • Site Plan Review on 16.86 acres; and Reading of the Ordinance for Zoning District Amendment in the Commercial Regional Service Zoning District on 16.86 acres; and • Approve the Development Agreement for Wal-Mart Synopsis This is final approval of plans and the development agreement for an addition to Walmart, including a new truck dock for expanded groceries and other site improvements. On January 19, 2010, Walmart submitted an extension to the 120 days for City consideration of their application until February 16, 2010. However, Walmart requested earlier consideration if staff and Walmart were able to come to agreement on a development agreement before that date. Based upon the staff recommendation and Council direction during the February 19th workshop, all references to a Special Service District have been removed from the agreement. Provisions requiring Walmart to pay a fair share for streetscape improvements to Singletree Lane have been retained. However, the median estimate of cost has been used instead of the upper estimate. A cash escrow has been used rather than special assessments based upon Walmart’s preference. Provisions requiring Walmart to pay a fair share for streetscape improvements to Prairie Center Drive have been removed to make the cash escrow more affordable within Walmart’s project budget. The City could special assess for the Prairie Center Drive improvements in the future. The development agreement includes a concession that Walmart does not have to add brick to the existing rear of the building, which is currently nonconforming. This concession is also to help Walmart afford the cash escrow for the Singletree streetscape improvements within their project budget. Staff believes the streetscape improvements will have higher public benefit than the brick on the rear of the building. Other minor amendments have been made to the development agreement at the request of Walmart and agreement by staff and the City Attorney. Attachments 1. Ordinance for Zoning District Amendment 2. Summary Ordinance 3. Resolution for Site Plan Review 4. Development Agreement WAL-MART CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA ORDINANCE NO. _________ AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA, AMENDING THE ZONING WITHIN A PARTICULAR ZONING DISTRICT, AND ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 11.99 WHICH, AMONG OTHER THINGS, CONTAIN PENALTY PROVISIONS THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE, MINNESOTA, ORDAINS: Section 1. That the land which is the subject of this Ordinance (hereinafter, the “land”) is legally described in Exhibit A attached hereto and made a part hereof. Section 2. That action was duly initiated proposing that the land be amended within the C-Reg-Ser Zoning District. Section 3. The proposal is hereby adopted and the zoning of the land shall be, and hereby is amended within the C-Reg-Ser Zoning District, and the legal description of land in such District referred to in City Code Section 11.03, Subdivision 1, Subparagraph B, shall be, and is amended accordingly. Section 4. City Code Chapter 1, entitled “General Provisions and Definitions Applicable to the Entire City Code Including Penalty for Violation” and Section 11.99, “Violation a Misdemeanor” are hereby adopted in their entirety, by reference, as though repeated verbatim herein. Section 5. The land shall be developed in accordance with Development Agreement between the City of Eden Prairie and Wal-Mart, dated February 3, 2010. Section 6. This Ordinance shall become effective from and after its passage and publication. FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the 17th day of November, 2009, and finally read and adopted and ordered published in summary form as attached hereto at a regular meeting of the City Council of said City on the 3rd day of February, 2010. ATTEST: _____________________________ _____________________________ Kathleen A. Porta, City Clerk Phil Young, Mayor EXHIBIT A Legal Description Lot 1, Block 1 Wal-Mart 2nd Addition WAL-MART CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA SUMMARY OF ORDINANCE NO. __-2010 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA, AMENDING THE ZONING OF CERTAIN LAND WITHIN ONE DISTRICT, AND ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 11.99, WHICH, AMONG OTHER THINGS, CONTAIN PENALTY PROVISIONS THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE, MINNESOTA, ORDAINS: Summary: This ordinance allows amendment of the zoning of land located at 12195 Singletree Lane within the Commercial Regional Service Zoning District. Exhibit A, included with this Ordinance, gives the full legal description of this property. Effective Date: This Ordinance shall take effect upon publication. ATTEST: __________________________ ________________________ Kathleen Porta, City Clerk Phil Young, Mayor PUBLISHED in the Eden Prairie News on ______________________, 2010. (A full copy of the text of this Ordinance is available from City Clerk.) EXHIBIT A: Lot 1, Block 1, Walmart 2nd Addition, Hennepin County, Minnesota WAL-MART CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2010-____ A RESOLUTION GRANTING SITE PLAN APPROVAL FOR WAL-MART BY THE BENHAM COMPANY WHEREAS, The Benham Company, has applied for Site Plan approval of Wal-Mart to construct a 1,624 square foot addition to the existing building and exterior remodel, by an Ordinance approved by the City Council on February 3, 2010; and WHEREAS, the Planning Commission reviewed said application at a public hearing at its October 26, 2009 meeting and recommended approval of said site plans; and WHEREAS, the City Council has reviewed said application at a public hearing at its November 17, 2009 meeting. NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE, that site plan approval be granted to Wal-Mart based on the Development Agreement between WAL-MART REAL ESTATE BUSINESS TRUST, and the City of Eden Prairie, reviewed and approved by the City Council on February 3, 2010. ADOPTED by the City Council of the City of Eden Prairie this 3rd day of February, 2010. _______________________ Phil Young , Mayor ATTEST: ________________________ Kathleen A. Porta, City Clerk DEVELOPMENT AGREEMENT WAL-MART THIS DEVELOPMENT AGREEMENT (“Agreement”) is entered into as of February __, 2010, by WAL-MART REAL ESTATE BUSINESS TRUST, a Delaware statutory trust , hereinafter referred to as "Developer," its successors and assigns, and the CITY OF EDEN PRAIRIE, a municipal corporation, hereinafter referred to as "City”: WITNESSETH: WHEREAS, Developer has applied to City for Zoning District Amendment in the Commercial Regional Services District and Site Plan Review on 16.86 acres, legally described on Exhibit A (the “Property”); WHEREAS, Developer and City entered into that certain Development Agreement between the parties as of October 1, 1991, pertaining to the Property ("Original Development Agreement"). NOW, THEREFORE, in consideration of the City adopting Ordinance ____for Zoning District Amendment on 16.86 acres, and Resolution No. ____________ for Site Plan Review, Developer agrees to construct, develop and maintain the Property as follows: 1. PLANS: Developer shall develop the Property in conformance with the materials revised and stamp dated November 17, 2009, reviewed and approved by the City Council on November 17, 2009, (hereinafter the "Plans") and identified on Exhibit B, subject to such changes and modifications as provided herein. 2. EXHIBIT C: Developer agrees to the terms, covenants, agreements, and conditions set forth in Exhibit C. 3. DEVELOPER’S RESPONSIBILITY FOR CODE VIOLATIONS: In the event of a violation of City Code relating to use of and construction on the Property or failure to fulfill an obligation imposed upon the Developer pursuant to this Agreement, City shall give 24 hour notice of such violation in order to allow a cure of such violation, provided however, City need not issue a building or occupancy permit for construction or occupancy on the Land while such a violation is continuing, unless waived by City. The existence of a violation of City Code or the failure to perform or fulfill an obligation required by this Agreement shall be determined solely and conclusively by the City Manager of the City or a designee. 4. DEVELOPER'S RESPONSIBILITY FOR ITS CONTRACTORS: Developer shall release, defend and indemnify City, its elected and appointed officials, employees and agents from and against any and all claims, demands, lawsuits, complaints, loss, costs (including attorneys’ fees), damages and injunctions relating to any acts, failures to act, errors, omissions of Developer or Developer's consultants, contractors, subcontractors, suppliers and agents. Developer shall not be released from its responsibilities to release, defend and indemnify because of any inspection, review or approval by City. 5. EXTERIOR MATERIALS: Prior to building permit issuance, Developer shall submit to the City Planner, and receive the City Planner's written approval of a plan depicting exterior materials and colors to be used on the buildings on the Property. Prior to issuance of any occupancy permit for the Property, Developer shall complete implementation of the approved exterior materials and colors plan in accordance with the terms and conditions of Exhibit C, attached hereto. 6. GRADING, DRAINAGE, AND STORMWATER POLLUTION PREVENTION PLANS: A. FINAL GRADING AND DRAINAGE PLAN: Developer agrees that the grading and drainage plan contained in the Plans is conceptual. Prior to the release of a land alteration permit for the Property, Developer shall submit and obtain the City Engineer's written approval of a final grading and drainage plan for the Property. The final grading and drainage plan shall include all wetland information, including wetland boundaries, wetland buffer strips and wetland buffer monument locations; all Stormwater Facilities, such as water quality ponding areas, stormwater detention areas, and stormwater infiltration systems; and any other items required by the application for and release of a land alteration permit. All design calculations for storm water quality and quantity together with a drainage area map shall be submitted with the final grading and drainage plan. Prior to release of the grading bond, Developer shall certify to the City that the Stormwater Facilities conform to the final grading plan and that the Stormwater Facilities are functioning in accordance with the approved plans. Developer shall employ the design professional who prepared the final grading plan. The design professional shall monitor construction for conformance to the approved final grading plan and Stormwater Pollution Prevention Plan (SWPPP). The design professional shall provide a final report to the City certifying completion of the grading in conformance the approved final grading plan and SWPPP. In addition, the design professional retained by the Developer to perform the monitoring of the Project shall be responsible for all monitoring, data entry and reporting to the PermiTrack ESC web-based erosion and sediment permit tracking program utilized by the City. B. STORMWATER FACILITY CONSTRUCTION: Stormwater Facilities, including detention basins, retention basins or Stormwater Infiltration Systems (such as rainwater gardens, vegetated swales, infiltration basins, vegetated filters, filter strips, curbless parking lot islands, parking lot islands with curb-cuts, traffic islands, tree box filters, bioretention systems or infiltration trenches) shall be maintained by the Developer during construction and for a minimum of two (2) full growing seasons after completion of the development to ensure that soil compaction, erosion, clogging, vegetation loss and channelization of flow are not occurring, and thereafter by the Owner of the Property. Developer shall employ the design professional who prepared the final grading plan to monitor construction of the Stormwater Facilities for conformance to the Minnesota Pollution Control Agency publication entitled “State of Minnesota Storm water Manual” dated November 2005, the approved final grading plan and the requirements listed herein. All Stormwater Infiltration Systems shall be delineated with erosion control fencing prior to construction. The Stormwater Infiltration Systems shall be installed using low-impact earth moving equipment. No equipment, vehicles, supplies or other materials shall be allowed in the areas designated for stormwater infiltration during construction. Pervious surfaces shall be stabilized with seed and mulch or sod and all impervious surfaces must be completed prior to final grading and planting of the Stormwater Infiltration Systems. All Stormwater Facilities shall be kept free of debris, litter, invasive plants and sediment. Sediment, debris, litter or vegetation removal in Stormwater Infiltration Systems shall be by hand or with a flat-bottomed shovel or rake during dry periods. Only enough sediment shall be removed as needed to restore hydraulic capacity, leaving as much of the vegetation in place as possible. Any damaged turf or vegetation shall be reseeded or replaced. After the two year period of Developer maintenance, the Owner of the Property shall be responsible for maintenance of the Stormwater Facilities. This shall include debris and litter removal, removal of noxious and invasive plants, removal of dead and diseased plants, re-mulching of void areas, replanting or reseeding areas where dead or diseased plants were removed and removal of sediment build-up. Sediment build-up in Stormwater Infiltration Systems shall be removed by hand. C. STORMWATER POLLUTION PREVENTION PLAN (SWPPP): Prior to issuance of a land alteration permit, Developer shall submit to the City Engineer and obtain City Engineer's written approval of the SWPPP for the Property. The SWPPP shall include all boundary erosion control features, temporary stockpile locations, turf restoration procedures, concrete truck washout areas and any other best management practices to be utilized within the Project. Prior to release of the grading bond, Developer shall complete implementation of the approved SWPPP. 7. IRRIGATION PLAN: Developer shall submit to the City Planner and receive the City Planner's written approval of a plan for irrigation of the landscaped areas on the Property. The irrigation plan shall be designed so that water is not directed on or over public trails and sidewalks. Developer shall complete implementation of the approved irrigation plan in accordance with the terms and conditions of Exhibit C prior to issuance of any occupancy permit for the Property. 8. LANDSCAPE PLAN: Landscaping shall be completed in accordance with City Code §11.03 Subd. 3G. Prior to building permit issuance, the Developer shall submit to the City Planner and receive the City Planner's written approval of a final landscape plan for the Property. Pursuant to City Code §11.03 Subd. 3G(4)(g) Developer shall be responsible for replacement of any dead trees, shrubs, ground covers , and sodding. The approved landscape plan shall be consistent with the quantity, type, and size of plant materials shown on the landscape plan on the Plans. Developer shall furnish to the City Planner and receive the City Planner's written approval of a security in the form of a bond, cash escrow, or letter of credit, equal to 150% of the cost of said improvements as required by City Code. Pursuant to City Code §11.03 Subd. 3G(3), said bond, cash escrow, or letter of credit shall be provide to City before any building permit will be issued and shall be held by City for not more than 2 complete growing seasons or one calendar year subsequent to completion of the Landscape Plan. Prior to issuance of any occupancy permit for the Property, Developer shall complete implementation of the approved landscape plan in accordance with the terms and conditions of Exhibit C. 9. MECHANICAL EQUIPMENT SCREENING: Developer shall submit to the City Planner, and receive the City Planner's written approval of a plan for screening of mechanical equipment on the Property. For purposes of this paragraph, "mechanical equipment" includes gas meters, electrical conduit, water meters, and standard heating, ventilating, and air-conditioning units. Security to guarantee construction of said screening shall be included with that provided for landscaping on the Property, in accordance with City Code requirements. Developer shall complete implementation of the approved plan prior to issuance of any occupancy permit for the Property. Security for the installation of the mechanical equipment screening shall be released to Developer upon issuance of an Occupancy Permit or upon completion of any corrective measures, as provide in the next paragraph. If, after completion of construction of the mechanical equipment screening, it is determined by the City Planner, in his or her sole discretion, that the constructed screening does not meet the Code requirements to screen mechanical equipment from public streets and differing, adjacent land uses, then the City Planner shall notify Developer and Developer shall take corrective action to reconstruct the mechanical equipment screening in order to cure the deficiencies identified by the City Planner. Developer agrees that the City will not release the security provided until Developer completes all such corrective measures. 10. PERFORMANCE STANDARDS: Developer agrees that the Property will be operated in a manner meeting all applicable noise, vibration, dust and dirt, smoke, odor and glare laws and regulations. Developer further agrees that the facility upon the Property shall be operated in conformance with City Code §11.03 Subd. 4. 11. BRICK WALLS: Developer shall not be required to install brick as the exterior material on the existing rear wall of the existing Wal-Mart store. 12. SIDEWALK AND TRAIL CONSTRUCTION: Concurrent with the reconstruction of the driveway on Regional Center Road to the loading area, Developer agrees to reconstruct the sidewalk on Regional Center Road from just west of the driveway to the eastern property line of the property as depicted in the plans. Developer agrees to construct the sidewalk with a minimum six foot boulevard between the roadway and sidewalk. Developer shall complete reconstruction of the sidewalk in accordance with the terms of Exhibit C prior to the issuance of any occupancy permit for the Property. Bonding in accordance with City Code shall be required for the sidewalk reconstruction. 13. SIGNS: Developer agrees that for each sign which requires a permit by Eden Prairie City Code, Section 11.70, Developer shall file with the City Planner and receive the City Planner's written approval of an application for a sign permit. The application shall include a complete description of the sign and a sketch showing the size, location, the manner of construction, and other such information as necessary to inform the City of the kind, size, material construction, and location of any such sign, consistent with the sign plan shown on the Plans and in accordance with the requirements of City Code, Section 11.70, Subdivision 5a. 14. SITE LIGHTING: Prior to building permit issuance, Developer shall submit to the City Planner and receive the City Planner's written approval of a plan for site lighting on the Property. All pedestrian pole lighting shall consist of downcast shoebox fixtures not to exceed 20 feet in height. Developer shall complete implementation of the approved lighting plan prior to issuance of any occupancy permit for the Property. All other pole light shall not exceed the height of lighting poles existing on the date of this Agreement. 15. [INTENTIONALLY DELETED] 16. PERMANENT EASEMENTS: Prior to issuance of any building permit on the Property, Developer shall deliver in a recordable form for review and approval by the City Engineer, Permanent Easements in the form attached as Exhibit D and depicted on Exhibit D-1, in the following locations to accommodate future public improvements: A. A 10-foot wide easement along Singletree Lane as depicted in the Plans. B. A 15-foot wide easement along Regional Center Road as depicted in the Plans. C. An easement for the continuation of Eden Road adjacent to the loading dock access as depicted in the Plans and provided that the City shall not require that Developer eliminate its curb cut and driveway onto Regional Center Road if and when Eden Road is constructed. The easements shall be recorded by Developer upon approval of the easements from the City Engineer. Developer shall file the easements with the Hennepin County Recorder/Registrar of Title, as appropriate and prior to recording of any document affecting the Property, including but not limited to any mortgage granted by the Developer or owners, their successors and/or assigns. Immediately after recording the easements Developer shall submit to the City Engineer proof that the easements have been recorded in the Hennepin County Recorder's Office/Registrar of Titles' Office. No building permit shall be issued until proof of filing of the easements in accordance with the terms of this Agreement has been furnished to the City. 17. EASEMENT FOR EDEN ROAD [INTENTIONALLY DELETED] 18. EASMENT FOR SINGLE TREE LANE: [INTENTIONALLY DELETED] 19. EASEMENT FOR REGIONAL CENTER ROAD [INTENTIONALLY DELETED] 20. CASH ESCROW: Prior to the issuance of a building permit, Developer shall submit a Cash Escrow in the amount of $535,000.00 and executed the Cash Escrow Agreement in the form attached as Exhibit E for the streetscape along Singletree Lane. 21. TRASH, RECYLING, AND PALLET ENCLOSURES: Prior to building permit issuance, Developer shall submit to the City Planner, and obtained the City Planner's written approval of a plan for the design and construction of the outside trash, recycling, and pallet enclosures for the Property. The enclosures shall be constructed with face brick to match the building, and heavy duty steel gates that completely screen the interior of the enclosure. Developer shall complete implementation of the trash, recycling, and pallet enclosure plan prior to issuance of any occupancy permit for the Property. 22. OPERATING CONDITIONS OF GARDEN CENTER: Developer acknowledges and agrees to the following operating requirements with respect to the garden center on the Property, as depicted in the Plans identified on Exhibit B, attached hereto: A. Goods not on display for immediate sale shall be stored within the main structure on the Property. B. All items for outside display, including, but not limited to, fertilizer, dirt, sand, rock, mulch, railroad ties, landscape timbers, bricks, patio blocks, sod, compost, fencing, hay, straw, manure, unpacked bulk items, including the pallets for such items, and any other such items related to the garden center that are on display for immediate sale shall be stored within the garden center area as depicted in Exhibit B, attached hereto. No materials of any kind shall be visible from any public road nor shall such materials be visible above the height of the fence or screen wall adjoining said garden center, as depicted in Exhibit B, attached hereto. C. No signs shall be allowed on the exterior of the fence or screen wall adjoining said garden center, except as permitted by City Code and as approved by City. 23. OUTSIDE DISPLAY OF GOODS AND MATERIALS: Developer agrees that there shall be no sidewalk displays of materials, goods, supplies, equipment, or any other item, allowed on the Property, except as permitted by City Code, but in no event shall any such display interfere with pedestrian or vehicular traffic, nor shall such display interfere with parking, or be located within any setback area. 24. This agreement supersedes in its entirety the Original Development Agreement between Wal-Mart Stores , Inc and the City of Eden Prairie dated October 1, 1991. IN WITNESS WHEREOF, the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. DEVELOPER CITY OF EDEN PRAIRIE WAL-MART REAL ESTATE BUSINESS TRUST By ___________________________________ By___________________________ Its ___________________________________ Phil Young Its Mayor By__ ________________________ Scott H. Neal Its City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this ____ day of ________________, 2010, by Phil Young and Scott H. Neal, respectively the Mayor and the City Manager of the City of Eden Prairie, a Minnesota municipal corporation, on behalf of said corporation. _______________________ Notary Public STATE OF ARKANSAS ) ) ss. COUNTY OF BENTON ) The foregoing instrument was acknowledged before me this ____ day of ____________, 2010, by ___________________________, the Regional Vice President of Design and Real Estate of Wal-Mart Real Estate Business Trust, a Delaware statutory trust, on behalf of the trust . Notary Public THIS INSTRUMENT WAS DRAFTED BY: City of Eden Prairie 8080 Mitchell Road Eden Prairie, MN 55344 EXHIBIT A – LEGAL DESCRIPTION DEVELOPMENT AGREEMENT – WAL-MART Lot 1, Block 1, Walmart 2nd Addition, Hennepin County, MN EXHIBIT B – PLANS DEVELOPMENT AGREEMENT WAL-MART (Attach to the Development Agreement stating the name of each plan or other item included as Exhibit B, the date on the plan (not the date we stamp on it), and the name of the Civil Engineer or Architectural firm.) C-1.01 Title Sheet dated 09/18/99 by McCombs Frank Roos Associates, Inc. (MFRA) C-2.01 Existing Conditions Boundary Plan dated 09/04/09 by MFRA C-2.02 Existing Conditions Topographic Plan dated 09/04/09 by MFRA C-2.03 Tree Inventory List dated 09/04/09 by MFRA C-2.04 Tree Inventory Plan dated 09/04/09 by MFRA C-3.01 A Preliminary Site Plan dated 09/18/09 by MFRA C-4.01 A Preliminary Grading, Drainage & Eros Control Plan dated 9/18/09 by MFRA C-5.01 A Preliminary Utility Plan dated 09/18/09 by MFRA. L-1.01 A Preliminary Landscape Plan dated 09/18/09 by MFRA L-1.02 A Preliminary Landscape Details dated 09/18/09 by MFRA AP1 Preliminary Floor Plan dated 10/02/09 by Benham AP2 Preliminary Enlarged Floor Plan dated 10/02/09 by Benham EXHIBIT C DEVELOPMENT AGREEMENT – WAL-MART I. Prior to release of any building permit, Developer shall submit to the City Engineer for approval two copies of the final site development plan (1" =100' scale) showing existing and proposed contours, minimum floor elevations on each lot, preliminary alignment and grades for sanitary sewer, water main, and storm sewer, 100-year flood plain contours, ponding areas, tributary areas to catch basins, arrows showing direction of storm water flow on all lots, location of walks, trails, and any property deeded to the City. II. Developer shall submit detailed construction and storm sewer plans to the Watershed District for review and approval. Developer shall follow all rules and recommendations of said Watershed District. III. INTENTIONALLY DELETED IV. If Developer fails to proceed in accordance with this Agreement within twenty-four (24) months of the date hereof, Developer, for itself, its successors, and assigns, shall not oppose the City’s reconsideration and rescission of any Rezoning, Site Plan review and/or Guide Plan review approved in connection with this Agreement, thus restoring the status of the Property before the Development Agreement and all approvals listed above were approved. V. Provisions of this Agreement shall be binding upon and enforceable against the Property and the Owners, their successors and assigns of the Property. VI. INTENTIONALLY DELETED The Developer hereby irrevocably nominates, constitutes, and appoints and designates the City as its attorney-in-fact for the sole purpose and right to amend Exhibit A hereto to identify the legal description of the Property after platting thereof. VII. Developer represents that it has marketable fee title to the Property, except: (See Exhibit F) With respect to any interest in all portions of the Property which Developer is required, pursuant to this Agreement, to dedicate or convey to the City (the "Dedicated Property"), Developer represents and warrants that to its knowledge as follows now and at the time of dedication or conveyance: A. That Developer has marketable fee title free and clear of all mortgages, liens, and other encumbrances or shall submit Consents to the conveyances required in this Agreement from all holders of any mortgage, lien or other encumbrance. Prior to release of the building permit, Developer shall provide to the City a current title insurance policy insuring such a condition of title. B. That Developer has not used, employed, deposited, stored, disposed of, placed or otherwise allowed to come in or on the Dedicated Property, any hazardous substance, hazardous waste, pollutant, or contaminant, including, but not limited to, those defined in or pursuant to 42 U.S.C. § 9601, et. seq., or Minn. Stat., Sec. 115B.01, et. seq. (such substances, wastes, pollutants, and contaminants hereafter referred to as "Hazardous Substances"), except in compliance with applicable law ; C. That Developer has not allowed any other person to use, employ, deposit, store, dispose of, place or otherwise have, in or on the Property, any Hazardous Substances, except in compliance with applicable law ; D. That to the best of Developer’s knowledge without investigation no previous owner, operator or possessor of the Property deposited, stored, disposed of, placed or otherwise allowed in or on the Property any Hazardous Substances. Developer agrees to indemnify, defend and hold harmless City, its successors and assigns, against any and all loss, costs, damage and expense, including reasonable attorneys fees and costs that the City incurs because of the breach of any of the above representations or warranties and/or resulting from or due to the release or threatened release of Hazardous Substances which were, or are claimed or alleged to have been, used, employed, deposited, stored, disposed of, placed, or otherwise located or allowed to be located, in or on the Dedicated Property by Developer, its employees, agents, contractors or representatives. VIII. Developer acknowledges that Developer is familiar with the requirements of Chapter 11, Zoning, and Chapter 12, Subdivision Regulations, of the City Code and other applicable City ordinances affecting the development of the Property. Developer agrees to develop the Property in accordance with the requirements of all applicable City Code requirements and City Ordinances. IX. INTENTIONALLY DELETED X. Developer shall submit detailed water main, fire protection, and emergency vehicle access plans to the Fire Marshal for review and approval. Developer shall follow all the recommendations of the Fire Marshal. XI. Developer acknowledges that the rights of City performance of obligations of Developer contemplated in this agreement are special, unique, and of an extraordinary character, and that, in the event that Developer violates, or fails, or refuses to perform any covenant, condition, or provision made herein, City may be without an adequate remedy at law. Developer agrees, therefore, that in the event Developer violates, fails, or refuses to perform any covenant, condition, or provision made herein, City may, at its option, institute and prosecute an action to specifically enforce such covenant, withhold building permits or rescind or revoke any approvals granted by the City. No remedy conferred in this Agreement or provided to the parties by law or equity is intended to be exclusive and each shall be cumulative and shall be in addition to every other remedy. The election of any one or more remedies shall not constitute a waiver of any other remedy. XII. INTENTIONALLY DELETED XIII. Prior to building permit issuance, all fees associated with the building permit shall be paid to the Inspections Department, such as, if applicable, Building permit fee, plan check fee, State surcharge, metro system access charge (SAC), and City SAC and City water access charge (WAC),. Contact Metropolitan Waste Control to determine the number of SAC units. XIV. Prior to building permit issuance, except as otherwise authorized in the approved Plans, any wells and septic systems (if present) shall be properly abandoned or removed as required by City ordinance and all permits obtained through the Inspections Department. XV. INTENTIONALLY DELETED Prior to building permit issuance, provide two copies of an approved survey or site plan (1" = 200 scale) showing proposed building location and all proposed streets, with approved street names, and property lines. XVI. The City shall not issue any building permit for the construction of any building, structure, or improvement on the Property until all requirements listed in this Exhibit C that are to be completed prior to the commencement of construction have been satisfactorily addressed by Developer. XVII. No failure of the City to comply with any term, condition, covenant or agreement herein shall subject the City to liability for any claim for damages, costs or other financial or pecuniary charges. No execution on any claim, demand, cause of action or judgment shall be levied upon or collected from the general credit, general fund or taxing powers of the City. XVIII. INTENTIONALLY DELETED XIX Prior to building permit issuance, the Developer shall record the Development Agreement at the County Registrar of Titles. XX. The City is hereby granted the option, but not the obligation, to complete or cause completion in whole or part of all of the Developer’s obligations under this Agreement for which a bond, letter of credit, cash deposit or other security (hereinafter referred to as the “Security”) is required if the Developer defaults with respect to any term or condition in this Agreement for which Security is required and fails to cure such default(s) within ten (10) days after receipt of written notice thereof from the City; provided however if the nature of the cure is such that it is not possible to complete the cure within ten (10) days, it shall be sufficient if the Developer has initiated and is diligently pursuing such cure. The Developer acknowledges that the City does not assume any obligations or duties of the Developer with respect to any such contract agreements unless the City shall agree in writing to do so. The City may draw down on or make a claim against the Security, as appropriate, upon five (5) business days notice to the Developer, for any violation of the terms of this Agreement or if the Security is allowed to lapse prior to the end of the required term. If the obligations for which Security is required are not completed at least thirty (30) days prior to the expiration of the Security and if the Security has not then been renewed, replaced or otherwise extended beyond the expiration date, the City may also draw down or make a claim against the Security as appropriate. If the Security is drawn down on or a claim is made against the Security, the proceeds shall be used to cure the default(s) and to reimburse the City for all costs and expenses, including attorneys’ fee, incurred by the City in enforcing this Agreement. XXI The Developer hereby grants the City, its agents, employees, officers and contractors a license to enter the Property to perform all work and inspections deemed appropriate by the City in conjunction with this Agreement. XXII This Agreement is a contract agreement between the City and the Developer. No provision of this Agreement inures to the benefit of any third person, including the public at large, so as to constitute any such person as a third-party beneficiary of the Agreement or of any one or more of the terms hereof, or otherwise give rise to any cause of action for any person not a party hereto. EXHIBIT D DEVELOPMENT AGREEMENT – WAL-MART PERMANENT EASEMENT Wal-Mart Real Estate Business Trust, a statutory trust organized under the laws of the State of Delaware (“Grantor”) hereby grants and conveys this ______ day of ____________, 2010 to City of Eden Prairie, a municipal corporation organized under the laws of the State of Minnesota (“Grantee”) an easement (“Easement”) for the following uses and purposes and subject to the following terms and conditions on, over, under and across real property in the County of Hennepin, State of Minnesota and described in Exhibit A, depicted in Exhibit B and made a part of (“Easement Parcel”). 1. Uses and Purposes. The Easement shall be for right-of-way and public purposes over, under, across and through the Easement Parcel. Use of the easement may include, but is not limited to, construction, operation and maintenance of roadways, utilities (public and private), trails, sidewalks and associated appurtenances. 2. Nonexclusive. The Easement shall be nonexclusive; provided, however, this Easement shall be prior to and superior to any other easement hereinafter granted. Any future easement shall be subject to and subordinate to, and shall not interfere with, the Easement without the consent, in writing, of Grantee. 3. Duration of Easement. The Easement shall be perpetual, shall run with the land, shall be binding upon Grantor and its successors and assigns and shall be for the benefit of Grantee and its successors and assigns. IN WITNESS WHEREOF, the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. , an , By: __________________________ Its _________________________ STATE OF ARKANSAS ) ) ss. COUNTY OF BENTON ) The foregoing instrument was acknowledged before me this ____ day of ____________, 2010, by ________________________, the Regional Vice President of Design and Real Estate of Wal- Mart Real Estate Business Trust, a Delaware statutory trust, on behalf of the trust . Notary Public Drafted By: City of Eden Prairie Engineering Department 8080 Mitchell Road Eden Prairie, MN 55344 EXHIBIT D - 1 DEVELOPMENT AGREEMENT – WAL-MART DEPICTION OF PERMANENT EASEMENT (SEE NEXT PAGE) EXHIBIT E [INSERT CASH ESCROW DEPOSIT AGREEMENT] DEVELOPMENT AGREEMENT – WAL-MART ESCROW AGREEMENT BETWEEN CITY OF EDEN PRAIRIE and WAL-MART REAL ESTATE BUSINESS TRUST This Escrow Agreement is made and entered into this day of February, 2010 by and between the City of Eden Prairie (“City”) and Wal-Mart Real Estate Business Trust, a Delaware statutory trust, and its successors and assigns (“Developer”). WHEREAS, City and Developer have entered into an Agreement entitled, “Development Agreement Wal-Mart” this __ day of February, 2010 (“Development Agreement”); and WHEREAS, Developer contemporaneous with the execution of this Agreement deposits with City the amount of $535,000.00 to be held by the City in trust in an interest bearing account, which together with the interest to be earned thereon is hereafter called the “Escrow Fund.” The Escrow Fund is to be held for the purpose of paying in full Developer’s share of costs of any City initiated project to install streetscape improvements along Singletree Lane within ten (10) years from the date of this Agreement (“Streetscape Improvement Project”) in lieu of any special assessments therefor. Streetscape improvements are those generally discussed in the “Major Center Area Streetscape Master Plan” dated January 27, 2009 prepared by SRF Consulting Group NOW, THEREFORE, it is agreed by and between the parties hereto as follows: 1. City shall hold and apply the Escrow Fund to pay in full Developer’s share of the costs for Streetscape Improvement Project as to Developer’s property described in the attached Exhibit A (the “Land”). Developer’s share of the costs for the Streetscape Improvement Project shall be determined by dividing the total Streetscape Improvement Project costs incurred by City, including construction, 9% City administrative fee, land acquisition, engineering and legal fees, by the total lineal front footage of the Singletree Streetscape Improvement Project multiplied by 1017.52, that being the lineal front footage attributable to Developer’s property. 2. City may make withdrawals from the Escrow Fund from time to time during the construction of the Streetscape Improvement Project to reimburse the City for costs identified in paragraph 1 above and provide notice of same to Developer. 3. The Escrow Fund shall be deposited by City and accounted for separately. The interest attributed to the Escrow Fund shall be the average interest rate earned on all City funds during the time period the Escrow Fund is held by City. 4. If the Developer’s share of Improvement costs is determined to be less than the amount of the Escrow Fund, the excess shall be refunded to Developer within thirty (30) days of final payment by City of all costs for the Streetscape Improvement Project. 5. The Cash Escrow plus all accrued interest shall be returned to the Developer if the City does not start construction of the Streetscape Improvement Project within ten years from the date of this Agreement. 6. The parties agree that the Developer’s share of the Streetscape Improvement Project shall not exceed the amount deposited into the Escrow Fund plus all interest accrued thereon. The parties further agree that the Escrow Fund deposit made this day by Developer shall be in lieu of any special assessment to be levied against the Developer or its Land pursuant to Minn. Stat. Chapter 429 for the Streetscape Improvement Project. 7. The Agreement shall run with the Land and be binding upon the parties, their successors and assigns. 8. The Agreement shall terminate upon the later of fulfillment of the obligations in paragraph 4 or 5 hereof. Upon termination of this Agreement and request by Developer, the City shall provide a recordable release of this Cash Escrow Agreement to the Developer IN WITNESS WHEREOF, the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. WAL-MART REAL ESTATE BUSINESS TRUST CITY OF EDEN PRAIRIE By ___________________________________ By___________________________ Phil Young Its Regional Vice President of Design and Its Mayor Real Estate By___________________________ Scott H. Neal Its City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this ____ day of ________________, 2010, by Phil Young and Scott H. Neal, respectively the Mayor and the City Manager of the City of Eden Prairie, a Minnesota municipal corporation, on behalf of said corporation. _______________________ Notary Public STATE OF ARKANSAS ) ) ss. COUNTY OF BENTON ) The foregoing instrument was acknowledged before me this ____ day of ____________, 2010, by ___________________________, the Regional Vice President of Design and Real Estate of Wal-Mart Real Estate Business Trust, a Delaware statutory trust, on behalf of the trust . Notary Public THIS INSTRUMENT WAS DRAFTED BY: Richard F. Rosow Gregerson, Rosow, Johnson & Nilan, LTD 650 Third Ave. South, Suite 1600 Minneapolis, MN 55402 EXHIBIT A Lot 1, Block 1, Walmart 2nd Addition, Hennepin County, MN EXHIBIT F TITLE ENCUMBRANCES 1. Easement for utility purposes in favor of Northern States Power Company as contained in Final Certificate filed of record March 20, 1979, as Document No. 1321789. 2. City of Eden Prairie Deferred Assessment Certificates filed of record September 15, 1982, as Document Nos. 1481690 and 1481691 on land Easterly of two 120-foot easements described in Document No. 1486616. 3. Easement for utility purposes in favor of the City of Eden Prairie as contained in Easement dated June 14, 1982, filed of record October 25, 1982, as Document No. 1486615. Reformed by Order of Court filed of record March 18, 1988, as Document No. 1915515. 4. Easements for road right of way and utility purposes in favor of the City of Eden Prairie as contained in Quit Claim Deeds dated April 30, 1985, filed of record December 11, 1985, as Document Nos. 1693502 and 1693503. 5. Easement for pedestrian and vehicular ingress and egress and parking purposes in favor of Reimer Olson, L.L.P., a Minnesota limited liability partnership, as contained in Access and Parking Easement dated January 13, 1995, filed of record January 13, 1995, as Document No. 2582668. Amended by Amendment to Corporation Deed and Access and Parking Easement dated October 31, 2000, filed of record November 29, 2000, as Document No. 3336732. 6. Easement for wireless communication systems purposes in favor of U.S. West Wireless Group, a division of U.S. West Communications, Inc., a Colorado corporation, as contained in Easement Agreement filed of record September 10, 1998, as Document No. 3064027. 7. Notice of Lis Pendens dated February 17, 2005, filed of record February 17, 2005, as Document No. 4080255, given to establish easements. 8. Drainage and utility easements as shown on the recorded plat of Walmart 2nd 9. Subject to rights of ingress and egress in favor of Developer over existing driveways and curb cuts. Addition. ESCROW AGREEMENT BETWEEN CITY OF EDEN PRAIRIE and WAL-MART REAL ESTATE BUSINESS TRUST This Escrow Agreement is made and entered into this day of February, 2010 by and between the City of Eden Prairie (“City”) and Wal-Mart Real Estate Business Trust, a Delaware statutory trust, and its successors and assigns (“Developer”). WHEREAS, City and Developer have entered into an Agreement entitled, “Development Agreement Wal-Mart” this __ day of February, 2010 (“Development Agreement”); and WHEREAS, Developer contemporaneous with the execution of this Agreement deposits with City the amount of $535,000.00 to be held by the City in trust in an interest bearing account, which together with the interest to be earned thereon is hereafter called the “Escrow Fund.” The Escrow Fund is to be held for the purpose of paying in full Developer’s share of costs of any City initiated project to install streetscape improvements along Singletree Lane within ten (10) years from the date of this Agreement (“Streetscape Improvement Project”) in lieu of any special assessments therefor. Streetscape improvements are those generally discussed in the “Major Center Area Streetscape Master Plan” dated January 27, 2009 prepared by SRF Consulting Group NOW, THEREFORE, it is agreed by and between the parties hereto as follows: 1. City shall hold and apply the Escrow Fund to pay in full Developer’s share of the costs for Streetscape Improvement Project as to Developer’s property described in the attached Exhibit A (the “Land”). Developer’s share of the costs for the Streetscape Improvement Project shall be determined by dividing the total Streetscape Improvement Project costs incurred by City, including construction, 9% City administrative fee, land acquisition, engineering and legal fees, by the total lineal front footage of the Singletree Streetscape Improvement Project multiplied by 1017.52, that being the lineal front footage attributable to Developer’s property. 2. City may make withdrawals from the Escrow Fund from time to time during the construction of the Streetscape Improvement Project to reimburse the City for costs identified in paragraph 1 above and provide notice of same to Developer. 3. The Escrow Fund shall be deposited by City and accounted for separately. The interest attributed to the Escrow Fund shall be the average interest rate earned on all City funds during the time period the Escrow Fund is held by City. 4. If the Developer’s share of Improvement costs is determined to be less than the amount of the Escrow Fund, the excess shall be refunded to Developer within thirty (30) days of final payment by City of all costs for the Streetscape Improvement Project. 5. The Cash Escrow plus all accrued interest shall be returned to the Developer if the City does not start construction of the Streetscape Improvement Project within ten years from the date of this Agreement. 6. The parties agree that the Developer’s share of the Streetscape Improvement Project shall not exceed the amount deposited into the Escrow Fund plus all interest accrued thereon. The parties further agree that the Escrow Fund deposit made this day by Developer shall be in lieu of any special assessment to be levied against the Developer or its Land pursuant to Minn. Stat. Chapter 429 for the Streetscape Improvement Project. 7. The Agreement shall run with the Land and be binding upon the parties, their successors and assigns. 8. The Agreement shall terminate upon the later of fulfillment of the obligations in paragraph 4 or 5 hereof. Upon termination of this Agreement and request by Developer, the City shall provide a recordable release of this Cash Escrow Agreement to the Developer IN WITNESS WHEREOF, the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. WAL-MART REAL ESTATE BUSINESS TRUST CITY OF EDEN PRAIRIE By ___________________________________ By___________________________ Its Regional Vice President of Design and Phil Young Real Estate Its Mayor By___________________________ Scott H. Neal Its City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this ____ day of ________________, 2010, by Phil Young and Scott H. Neal, respectively the Mayor and the City Manager of the City of Eden Prairie, a Minnesota municipal corporation, on behalf of said corporation. _______________________ Notary Public STATE OF ARKANSAS ) ) ss. COUNTY OF BENTON ) The foregoing instrument was acknowledged before me this ____ day of ____________, 2010, by ___________________________, the Regional Vice President of Design and Real Estate of Wal-Mart Real Estate Business Trust, a Delaware statutory trust, on behalf of the trust . Notary Public THIS INSTRUMENT WAS DRAFTED BY: Richard F. Rosow Gregerson, Rosow, Johnson & Nilan, LTD 650 Third Ave. South, Suite 1600 Minneapolis, MN 55402 EXHIBIT A Lot 1, Block 1, Walmart 2nd Addition, Hennepin County, MN