Res 2011-106 Settlement Agr 4th Amend to PUD Mendota Mall AssociatesCITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2011 -106
A RESOLUTION APPROVING SETTLEMENT AGREEMENT AND RELEASE
AS WELL AS 4TH AMENDMENT TO THE PLANNED UNIT DEVELOPMENT
AGREEMENT BY AND BETWEEN THE CITY OF MENDOTA HEIGHTS AND
MENDOTA MALL ASSOCIATES, LLP
WHEREAS, Mendota Mall Associates, LLP, ( "MMA ") is the owner of property legally
described as Mendota Plaza Expansion, Dakota County ( "the Property"); and
WHEREAS, the City and the Developer entered into that certain Planned Unit
Development Agreement dated April 30, 2009, recorded August 19, 2010, as Doc. No. 2747291, as
amended by that certain First Amendment to Planned Unit Development Agreement dated January
16, 2010, recorded August 19, 2010, as Doc. No. 2747292, as amended by that certain Second
Amendment to Planned Unit Development Agreement dated June 9, 2010, recorded August 19,
2010, as Doc. No. 2747293, and as amended by that certain Third Amendment to Planned Unit
Development Agreement dated October 22, 2010, recorded December 8, 2010, as Doc. No.
2771092 (collectively referred to as `TUD Agreement';
WHEREAS, the PUD Agreement provides for the construction and operation of a
residential assisted - living facility on Lot 6 of the Property, in a location described in the PUD
Agreement; and
WHEREAS, MMA has entered into a purchase agreement to sell Lot 6 to White Pine
Holdings, LLC, (WPH) which proposes to build and operate a residential assisted - living facility
on Lot 6; and
WHEREAS, a sanitary -sewer trunk main ( "SSTM ") owned by the City traverses
portions of the Property, including Lot 6; and
WHEREAS, Section 3.9 of the PUD Agreement provides that the City complete the
relocation of the SSTM from Lot 6 by March 1, 2011, but the parties disagree over whether the
PUD Agreement requires the City to bear the expense of the relocation work; and
WHEREAS, on or about May 4, 2011, MMA commenced an action against the City in
Dakota County District Court (Court File No. 19RA -CV -11 -2790) seeking a declaration that the
City must relocate the SSTM at its own expense, and an award of contract damages ( "the
Action "); and
WHEREAS, trial in the Action is scheduled to begin on January 4, 2012; and
394818v4 RAA BE295 -254
WHEREAS, in or around June 2011, VWPH and MMA submitted a joint application to
the City for various amendments to the planned unit development plan in order to proceed with
construction of the residential assisted- living facility on Lot 6 ( "the Application "); and
WHEREAS, the Planning Commission conducted a public hearing with regard to the
Application at its August, 2011 meeting, as required by City Code and recommended denial of
the Application on grounds including the fact that the residential assisted - living facility was
proposed to be located on top of the SSTM; and
WHEREAS, the City Council denied the Application on August 30, 2011, and
WHEREAS, representatives of WPH, MMA and the City participated in mediation
proceedings in November of 2011, for purposes resolving the Action as well as identifying the
means by which the development of the Property could proceed pursuant to the PUD Agreement;
and
WHEREAS, representatives of MMA and the City have negotiated the terms of a
settlement agreement that resolve all pending disputes in the Action; and
WHEREAS, pursuant to the settlement agreement, MMA. has agreed to reduce the size
of the proposed assisted living facility from four stories to a single story building; and
WHEREAS, MMA has also agreed to reduce the number of residential units from 100 to
a number not to exceed 50- units; and
WHEREAS, MMA has agreed to relocate the building so as to not require relocation of
the SSTM; and
WHEREAS, representatives of MMA and the City have also agreed to various other
amendments to the PUD Agreement that relate to issues raised in the Application previously
submitted to the City or that constitute minor changes to the previously approved PUD
Agreement; and
WHEREAS, except as set forth in the proposed amendments, the parties have agreed
that all other terms and conditions of the original PUD Agreement will remain in full force and
effect; and
WHEREAS, in consideration of MMA's willingness to reduce the building size and
relocate the building in order to accommodate the existing location of the SSTM, the City has
agreed to contribute $150,000 to MMA for purposes of addressing costs related to the re- design
of the building and the reduction in potential income of the project due to the reduction in
building size; and
WHEREAS, the terms of the settlement agreement and the proposed amendments to the
PUD Agreement are incorporated in the Settlement Agreement and Release, which was executed
by representatives of the MMA and the City on November 15, 2011; and
394818v4 RAA BE295 -254 2
WHEREAS, the Settlement Agreement and Release becomes effective and binding on
the parties upon approval by the City Council;
WHEREAS, it is the desire and intent of the City Council to fully and completely
resolve, settle, and compromise any and all claims arising from the Action in order to avoid the
expense and uncertainty of further litigation; and
WHEREAS, the City Council has concluded that it is in the best interest of the City and
its residents for the pending Action to be resolved in order to avoid the unnecessary costs,
inconvenience and distractions associated with the pending litigation, and to protect the health
and safety of the residents of Mendota Heights; and
WHEREAS, the City Council has concluded that the proposed amendments to the PUD
Agreement are in the best interest of the City and consistent with applicable law;
NOW, THEREFORE, BE IT RESOLVED, that the above - referenced recitals are
incorporated herein to this Resolution.
NOW, THEREFORE, BE IT FURTHER RESOLVED, that the Settlement Agreement
and Release executed by representatives of MMA and the City on November 15, 2011, and
attached hereto as Exhibit 1, is hereby approved by the City Council.
NOW, THEREFORE, BE IT FURTHER RESOLVED, that the Fourth Amendment to
the Planned Unit Development Agreement attached to the Settlement Agreement and Release as
Exhibit A, is hereby approved by the City Council.
NOW, THEREFORE, BE IT FURTHER RESOLVED, in support of the above
approvals, the City Council hereby makes the following findings of fact:
1. The proposed reduction in size and relocation of the residential assisted - living facility
on Lot 6 eliminates the need to relocate the City's sanitary sewer trunk main, which is
in the best interest of the City because it maintains the integrity of the City's public
sewer system.
2. The proposed reduction in size and relocation of the residential assisted - living facility
on Lot 6 allows for greater integration of the residential facility into the mixed use
PUD as directed by previous PUD approvals related to architectural design.
3. The proposed reduction in size and relocation of the residential assisted - living facility
on Lot 6 include appropriate parking for the residential facility.
4. The proposed reduction in size and relocation of the residential assisted - living facility
on Lot 6 eliminate the need for balconies, which were specifically included in
previous PUD approvals.
394818v4 RAA BE295 -254
5. The proposed amendments to the size, location and permitted. signage for the
residential assisted - living facility on Lot 6 are acceptable within the limitations
defined within the mixed -use PUD.
6. Subject to the conditions identified in the proposed PUD amendment, financing will
be available to WPH, the anticipated transferee of Lot 6, to assure completion of the
residential assisted - living facility for the project.
7. The construction schedule in the PUD Agreement is not feasible in light of recent
economic and market conditions.
NOW, THEREFORE, BE IT FURTHER RESOLVED, that the Mayor and City Clerk
are hereby authorized to execute and deliver to MMA for its execution the Fourth Amendment to
the Planned Unit Development Agreement in substantially the form as attached to the Settlement
Agreement and Release as Exhibit A.
NOW, THEREFORE, BE IT FINALLY RESOLVED THAT, the City Administrator
and City's attorneys are hereby authorized and directed to take any and all additional steps and
actions necessary or convenient to file or record the appropriate documents and/or stipulations to
facilitate the directives of the City Council as provided herein in order to accomplish the intent of
this Resolution.
Adopted by the City Council of the City of Mendota Heights this 22nd day of November, 2011.
ATTEST:
By TMU-----
Sandie Thone, City Clerk
394818v4 FAA BE295 -254 4
CITY COUNCIL
CITY P +Vl ��NDOTA HEIGHTS
Mayor
City of Mendota Heights
1101 Victoria Curve * Mendota Heights, Minnesota 55118 * www.mendota- heights.com
Phone 651.452.1850 * Fax 651.452.8940
DATE: December 9, 2011
TO: Dakota County Property Taxation and Records
FROM: Sandie Thone, City Clerk Z�b'�
SUBJECT: Resolution be Recorded with Dakota County
Please find attached the following resolution needing recording at the county:
Resolution 2011 -106: Resolution Approving Settlement Agreement and Release as Well as 4th
Amendment to the Planned Unit Development Agreement by and Between The City of Mendota
Heights and Mendota Mall Associates, LLP.
If you should have any questions please do not hesitate to contact me. The document has been
certified by the Office of the City Clerk of Mendota Heights and is an exact copy of the
ordinance in my office.
Sandie Thone, City Clerk
City of Mendota Heights
1101 Victoria Curve
City of Mendota Heights, MN 55118
651.452.1850
sandiet@mendota-heights.co
Mendota Heights —Small Town Feel in an Urban Setting
STATE OF MINNESOTA
COUNTY OF DAKOTA S.S.
CITY OF MENDOTA HEIGHTS )
I, Sandie Thone, being the duly appointed City Clerk of the City of Mendota
Heights, do hereby CERTIFY that the attached Resolution No: 2011-1
RESOLUTION APPROVING SETTLEMENT AGREEMENT AND RELEASE
AS WELL AS 4TH AMENDMENT TO THE PLANNED UNIT DEVELOPMENT
AGREEMENT BY AND BETWEEN THE CITY OF MENDOTA HEIGHTS
AND MENDOTA MALL ASSOCIATES, LLP is an exact copy of said Resolution on
file in my office.
Signed and sealed by my hand on this 9th day of December 2011.
-10jv"
Sandie Thone
City Clerk
(SEAL)
-0 Offices in 470 U.S. Bank Plaza
200 South Sixth Street
R1 Minneapolis Minneapolis, MN 55402
(612) 337-9300 telephone
Saint Paul (612) 337-9310 fax
St. Cloud www.kenned)-graven.com
C H A R T E R E D Affirmative Action, Equal Opportunity Employer
ROBERT A. ALSOP
Attorney at Law
Direct Dial (612) 337-9224
Email: ralsop@kennedy-graven.com
November 30, 2011
HAND DELIVERED
Ms. Tarnmera R. Dichm
Winthrop & Weinstine, P.A.
225 South Sixth Street, Suite 3500
Minneapolis, MN 55402
Re- Mendota Mall Associates, LLP v. City of Mendota Heights
Court File No. 19HA-CV-1 1-2790
Dear Tami:
Enclosed herewith is the original Fourth Amendment to the Planned Unit Development Agreement
executed by the parties in the above referenced matter. Please provide me a copy of the recorded
agreement once it has been returned from the Recorder's Office. Thanks.
Very truly yours,
KENNEDY & GRAVEN, CHARTERED
Robert A. Alsop
RAA
Enclosure
395241vl RAA BE295-254
This document drafted by:
Siegel Brill, PA
100 Washington Avenue South
Suite 1300
Minneapolis, MN 55401
612-337-6100
(AJG)
FOURTH AMENDMENT TO
PLANNED UNIT DEVELOPMENT AGREEMENT
THIS FOURTH AMENDMENT TO PLANNED UNIT DEVELOPMENT AGREEMENT
(this "Fourth Amendment") is made as of the Z e�' day of "aw", �r 2011 ("Effective Date"),
in
by and between the City of Mendota Heights, a Minnesota statutory city, having its principal
principal
office at 1101 Victoria Curve, Mendota Heights, Minnesota 55150-0688 ("City's and Mendota
Mall Associates, LLP, a Minnesota limited liability partnership, having its principal office at
2227 University Avenue, Saint Paul, Minnesota 55114, its successors and assigns as permitted
herein ("Developer')
WITN.ESSET
WHEREAS, the City and the Developer entered into that -certain Planned Unit
Development Agreement dated -April 30, 2009, recorded August 19, 2010, as Doc. No. 274729!
( "Original Agreement'), as amended by that certain First Amendment to Planned Unit
Development Agreement dated January 16, 2010, recorded August 19, 2010, as Doe. No. 2747292
("First Amendment'), as amended by that certain Second Amendment to Planned Unit
Development Agreement dated June 9, 2010, recorded August 19, 2010, as Doc. No. 2747293
("Second Amendment), and as amended by that certain Third Amendment to Planned Unit
Development Agreement dated October 22, 2010, recorded December 8, 2010, as Doe. No.
2771092 ("Third Amendment"} (collectively referred to as "Agreement';
WHEREAS, the Developer and City desire to enter into this Fourth Amendment to Planned
Unit Development Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. Capitalized terms used, but not defined herein, have the meanings
ascribed to them in the Agreement, except for terms with new definitions as set forth in this
Fourth Amendment.
2. Public Improvement Project. The parties agree that the Public Improvement Project,
as defined in Section 1.1(aa) of the Original Agreement shall not occur. All references to the Public
Improvement Project in the Agreement, as well as all obligations related thereto, are hereby deleted
in their entirety.
3. Section 1.1 (m) Lot 6. Section 1.1 (m) is hereby deleted in its entirety and replaced
with the following:
(m) Lot 6: Lot 6, Block 1 containing approximately 2.0 acres (as designated on Exhibit
A) upon which a one -story, multifamily residential, assisted living facility not to
exceed 50,000 square feet or 50 units will be constructed ( "Assisted Living ").
4. Site Plan. The Site Plan attached to the Original Agreement as Exhibit A shall be
supplemented with a revised site plan for Lot 6 that will be submitted to the City Engineer no later
than December 5, 2011 ( "Revised Site Plan "). The Revised Site Plan shall be in substantially
similar form and of substantially similar level of detail as the original site plan. The City Engineer
will review and respond within ten (10) business days after receipt of the Revised Site Plan with
any questions and comments or the City Engineer's approval of the Revised Site Plan. The :Revised
Site Plan for Lot 6 shall reflect the location and footprint of the Assisted Living facility described
above and incorporate sufficient detail to allow the City Engineer to confirm the following points:
(a) Pedestrian Circulation. Pedestrian circulation shall adequately integrate the
residential building into the mixed use PUD.
(b) Parking. Parking shall be provided in the ratio of 67 stalls per 100 units.
(c) Monument Sign. A monument sign shall be allowed in the southwest corner of Lot
6.
5. Exhibit B -6 Multifamily Residential Elevation. Exhibit B -6, attached to the
Original Agreement, shall be deleted and replaced with the revised EIevation Plan that will be
provided to the City no later than December 5, 2011 ( "Revised Elevation Plan "). The Revised
Elevation shall be in substantially similar form and of substantially similar level of detail as the
original elevation plan. The City Engineer will review and respond within ten (10) business days
after receipt of the Revised Elevation Plan with any questions and comments or the City Engineer's
approval of the Revised Elevation Plan. The Revised Elevation Plan shall provide sufficient detail
to allow the City Engineer to confirm (within ten (10) business days of receipt) that the Revised
Elevation Plan is consistent with the following points:
(a) Building Material. Building materials will be substantially similar to the materials
identified in the Design Standards attached to the Original Agreement as Exhibit H,
such as stone and James Hardie siding.
(b) Sim age. In addition to the monument sign included in the Site Plan, the Assisted
Living facility will be allowed to include signage which shall not extend above the
roofline and shall be attached to the building. The signage shall be allowed at the
following locations:
i. Highway 110 Side of Buildin: Backlit lettering, identifying the name
White Pine Senior Living or something similar.
ii. Mendota Mall Side of Building. Backlit lettering, identifying the name
White Pine Senior Living or something similar.
iii. Front Entrance. Identification signage located over the main entrance of the
building.
(c) Balconies. Balconies will not be required.
6. Landscape and Utili Plans. No later than December 5, 2011, Developer shall
deliver or cause White Pine to deliver a landscape plan and utility plan for Lot 6, in substantially
similar form and of substantially similar level of detail as the original landscape plan and utility
plan, incorporating the Assisted Living facility described herein.
s.
7. _Section 3.1 Commencement of Development. Section 3.1 is hereby deleted in its
entirety and replaced with the following:
Developer commenced development activities in accordance with the
Schedule of Development (Exhibit C), on or before November 15, 2009, and
completed all Infrastructure Improvements, the Walgreens Drugstore on Lot
1, and redevelopment of the existing Mendota Plaza on Lot 2, pursuant to
the elevation and floor plan attached to the Agreement as Exhibit B -2.
8. _Section 3.2 Completion of Development. Section 3.2 is hereby deleted in its
entirety and replaced with the following:
Subject to the phasing requirements outlined herein, the Project shall be
fully completed no later than November 15, 2026. Any phases of the
Project yet to be constructed as of the date of this Fourth Amendment, may
be commenced by Developer at any time prior to November 15, 2023, but
must be completed by the Developer thirty-six (36) months from the
issuance of the building permit.
9. Section 3.4 Modifications to Approved Plans. Section 3.4 is hereby deleted in its
entirety and replaced with the following:
The Developer shall not make any changes in the Plans or the Project
without the prior written consent of the City, which consent may be given or
withheld in the City's reasonable discretion. The City Council may, by a
majority vote, delegate approval of minor modifications to the Plans to the
City Administrator. For purposes of this Agreement, "minor modifications
to Plans" includes, without limitation, the change in size of any
improvement to be built on a specific Lot, in an amount not to exceed
twenty percent (20 %) of said improvements as show on the Plans, and
cosmetic changes to improvements within. the Project.
10. Section 4.2 Building Height and Material. The second sentence of Section 4.2 is
hereby deleted and replaced with the following:
Unless a change is approved by the City (either by the City Administrator
or a majority vote of the City Council), all building materials must be
substantially similar to those identified on the Plans or to any completed
commercial portion of the Project, such as stone or Hardie siding.
11. Consent to Transfer of Lot 6. Pursuant to Section 6.2 of the Original Agreement,
the Developer shall not have the right to transfer any portion of the Development Property without
the prior written consent of the City, which consent shall not be unreasonably withheld, conditioned
or delayed. The City acknowledges that the Developer has entered into a purchase agreement for
the sale of Lot 6 to White Pine Holdings, LLC ("White Pine "). Pursuant to Section 6.3, the City
acknowledges receipt of the items listed in Section 6.3 (a) Evidence of Developer Experience; 6.3
(c) Agreement to be Bound; and 6.3(d) Form of Transfer Documents. Developer acknowledges
that the City will consent to transfer Lot 6 to White Pine when the City receives the following:
(a) Evidence of Financial Qualification. Delivery of financial qualifications of White
Pine in form from White Pine's lender that said lender would commit to loan White Pine
funds or as to the general creditworthiness of White Pine to allow fulfillment of the
obligations undertaken pursuant to this Agreement by the Developer as to the portion of
the Development Property to be transferred to White Pine.
12. Ratification. Except as expressly amended hereby, all of the terms, provisions,
covenants and conditions of the Agreement are hereby ratified and confirmed and will continue in
full force and effect.
13. Authorily. The individuals executing this Fourth Amendment hereby represent and
warrant that they are empowered and duly authorized to so execute this Fourth Amendment on
behalf of the parties they represent.
14. Counterparts. This Fourth Amendment may be executed in counterparts, each of
which shall be deemed an original, and all of which together shall constitute one and the same
instrument.
[Signatures Appear On Next Page]
IN WITNESS WHEREQF, the City has caused this Fourth Amendment to be duly executed in
its name and behalf and the Developer has caused this Fourth Amendment to be duly executed in
its name and behalf on or as of the date first above written.
CITY ENDOTA HEIGHTS
By:
or
W,
0,
Its: City Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this,-A,- day of
2011, by Sandra K-rebsbach and Sandie Thone, the Mayor. and City Clerk, respectively, of the
City of Mendota Heights, a Minnesota statutory city, on behalf of such city.
NAAA4V�'aVVr,/VWVVI/V'.J\/Vk/vvI
SHARON M. HINZE Notary Public
Notary Public-Minnesota
My Commission Expires Jan 31, 2015
MENDOTA MALL ASSOCIATES, LLP
By:
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me this o"Y'lay of
�Ir - -.4r �q, _nDz(of Mendota Mall Associates, LLP, a
"�4 f of such limited liability partnership.
2011, by the _'(lo
I— -_
Minnesota limited liability partnership-, on behal 0
LISA MARIE TAYLOR
6439039A
Notary Public -Minnesota
. . . . . . . . . .
A"' My Commission Expires Jan 31, 2014
�7 ............. I
-MotiffPublic
Receipt#: 178821
ABSTRACT FEE
Return to:
CITY OF MENDOTA HEIGHTS
1101 VICTORIA CURVE
MENDOTA HEIGHTS, MN 55116
STATE OF MINNESOTA
COUNTY OF DAKOTA S.S.
CITY OF MENDOTA HEIGHTS )
2836289
$46.00 11111111111111111111
Recorded on: 12113/2011 09:00:01AM
By: DMB, Deputy
Joel T. Beckman County Recorder
Dakota County, MN
I, Sandie Thone, being the duly appointed City Clerk of the City of Mendota
Heights, do hereby CERTIFY that the attached Resolution No: 2011-106:
RESOLUTION APPROVING SETTLEMENT AGREEMENT AND RELEASE
AS WELL AS 4TH AMENDMENT TO THE PLANNED UNIT DEVELOPMENT
AGREEMENT BY AND BETWEEN THE CITY OF MENDOTA HEIGHTS
AND MENDOTA MALL ASSOCIATES, LLP is an exact copy of said Resolution on
file in my office.
Signed and sealed by my hand on this 9th day of December 2011.
(SERI.)
Iww-"'.
Sandie Thone
City Clerk