HomeMy WebLinkAbout2007 08-27 CCP Regular Session AGENDA
CITY COUNCIL STUDY SESSION
August 27, 2007
6:00 P.M.
City Council Chambers
A copy of the full City Council packet is available to the public. The packet ring binder is located at
the front of the Council Chambers by the Secretary.
1. City Council Discussion of Agenda Items and Questions
2. Miscellaneous
3. Discussion of Work Session Agenda Items as Time Permits
4. Adjourn
CITY COUNCIL MEETING
City of Brooklyn Center
August 27, 2007 AGENDA
1. Informal Open Forum With City Council 6:45 p.m.
provides an opportunity for the public to address the Council on items which are not on the
agenda. Open Forum will be limited to 15 minutes, it is not televised, and it may not be used
to make personal attacks, to air personality grievances, to make political endorsements, or
for political campaign purposes. Council Members will not enter into a dialogue with
citizens. Questions from the Council will be for clarification only. Open Forum will not be
used as a time for problem solving or reacting to the comments made but, rather, for hearing
the citizen for informational purposes only.
2. Invocation 7 p.m.
3. Call to Order Regular Business Meeting
—The City Council requests that attendees turn off cell phones and pagers during the meeting.
A copy of the full City Council packet is available to the public. The packet ring binder is
located at the front of the Council Chambers by the Secretary.
4. Roll Call
5. Pledge of Allegiance
6. Council Report
7. Approval of Agenda and Consent Agenda
—The following items are considered to be routine by the City Council and will be enacted by
one motion. There will be no separate discussion of these items unless a Councilmember so
requests, in which event the item will be removed from the consent agenda and considered at
the end of Council Consideration Items.
a. Approval of Minutes
1. August 13, 2007 Joint Meeting w/ Brooklyn Center School Board
2. August 13, 2007 Regular Session
3. August 13, 2007 Work Session
4. August 20, 2007 Budget Works Session w/ Financial Commission
b. Licenses
c. Approval of Applications and Permits for Temporary On-Sale Liquor Licenses
Submitted By St. Alphonsus Church, 7025 Halifax Avenue North, for Events to be
Held October 6-7, 2007, February 9, 2008, March 15, 2008, and May 3, 2008
d. Site Performance Guarantee Reduction Brooklyn Center I, LLC (6901 Brooklyn
Blvd)
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CITY COUNCIL AGENDA -2- August 27, 2007
8. Presentations/Proclamations/Recognitions/Donations
a. Diseased Tree Presentation Don Miller with the Department of Natural Resources
Forestry Program
•Requested Council Action:
None.
b. Resolution Expressing Recognition and Appreciation of Ronald Boman for His 39
Years of Dedicated Service to the City of Brooklyn Center
•Requested Council Action:
—Motion to adopt resolution.
9. Public Hearing
None
10. Planning Commission Items
a. Planning Commission Application No. 2007-016 Submitted by Adam Maier.
Request for Special Use Permit approval to operate a childcare facility in the
commercial building located at 6415 Brooklyn Boulevard. The Planning
Commission recommended approval of this application at its August 16, 2007,
meeting.
•Requested Council Action:
—Motion to approve Planning Commission Application No. 2007-016 subject
to the conditions recommended by the Planning Commission.
b. Planning Commission Application No. 2007-014 Submitted by Hanson Thorpe
Pellinen Olson, Inc. Request for Preliminary Plat approval to combine six existing
tracts of land within Brookdale Center and proposed vacated right of way to create
three new parcels of land, one of which is the proposed site for Wal-Mart. The
Planning Commission recommended approval of this application at its August 16,
2007, meeting.
•Requested Council Action:
—Motion to approve Planning Commission Application No. 2007-014 subject
to the conditions recommended by the Planning Commission.
c. Planning Commission Application No. 2007-015 Submitted by Brookdale Center.
Request for Planned Umt Development (PUD) Amendment to allow for the
construction of an approximate 184,600 sq. ft. Wal-Mart Supercenter along the north
side of Brookdale Shopping Center. The Planning Commission recommended
approval of this application at its August 16, 2007, meeting.
1. Resolution Regarding Disposition of Planning Commission Application No.
2007-015 Submitted by Brookdale Center.
•Requested Council Action:
—Motion to adopt resolution.
11. Council Consideration Items
CITY COUNCIL AGENDA -3- August 27, 2007
a. Resolution Authorizing Approval of the Issuance of a Premises Permit for Brooklyn
Park Babe Ruth League, Inc. to Conduct Lawful Gambling at Boulevard's Bar
Grill, 2545 County Road 10, Brooklyn Center
•Requested Council Action:
—Motion to adopt resolution.
b. An Ordinance Vacating Certain Drainage and Utility Easements within the Plat of
BROOKLYN FARM, Hennepin County, Minnesota
•Requested Council Action:
—Motion to approve first reading and set second reading and Public Hearing
for September 24, 2007.
c. Resolution Accepting Quotation and Awarding a Contract for Kylawn Park Building
Demolition, Improvement Project No. 2007-17
•Requested Council Action:
—Motion to adopt resolution.
d. Resolution Accepting Work Performed and Authorizing Final Payment,
Improvement Project No. 2007-14, Contract, 2007-D, 2007 Street Seal Coating
•Requested Council Action:
—Motion to adopt resolution.
e. Resolution Declaring a Public Nuisance and Ordering the Removal of Diseased
Trees
•Requested Council Action:
—Motion to adopt resolution.
f. Resolution Ordering the Correction of Hazardous Conditions and Further for the
Abatement of Public Nuisances, Safety and Health Hazards with Respect to that
Real Estate Located at 4501 Woodbine Lane N 55429 Brooklyn Center, Minnesota
55430 Legally Described as Lot 5, Block 2, Northbrook Manor 2nd Addition,
According to the Plat on File with the Registrar of Titles, Hennepin County,
Minnesota in the City of Brooklyn Center, Hennepin County, Minnesota
•Requested Council Action:
—Motion to adopt resolution.
12. Adjournment
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Office of the City Clerk
MEMORANDUM
TO: Curt Boganey, City Manager
FROM: Camille Worley, Deputy City Clerk
DATE: August 27, 2007
SUBJECT: COLTNCILMEMBER LASMAN: Requested Change to Minutes
Councilmember Lasman requested the following change to the Work Session minutes of August
13, 2007:
There was discussion on the amount of money that should be allocated to the 2011
Brooklyn Center Celebration. Allocatin� $20,000 to dedicate to the celebration was
discussed.
(�l�ee�� indicates matter to be deleted, underline indicates new matter
MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL
OF THE CITY OF BROOKLYN CENTER
1N THE COUNTY OF HENNEPIN AND
THE STATE OF MINNESOTA
JOINT MEETING of
BROOKLYN CENTER CITY COUNCIL and BROOKLYN CENTER SCHOOL BOARD
AUGUST 13, 2007
COUNCIL/COMMISSION CONFERENCE ROOM
CALL TO ORDER
The Brooklyn Center City Council met in a Joint Meeting with the Brooklyn Center School
Board at City Hall called to order by Mayor Tim Willson at 6:00 p.m.
ROLL CALL
Mayor Tim Willson and Councilmembers Kay Lasman, Mary O'Connor, Dan Ryan, and Mark
Yelich. Also present were City Manager Curt Boganey and Deputy City Clerk Camille Worley.
Brooklyn Center School District members present were: School Board Members Arnuewell
Benifield, Cheryl Jechorek, Dan Krekelberg, Kimberly Pearson, Tom Shinnick, and Greg
Thielsen, and Superintendent Keith Lester.
INTRODUCTIONS
DISCUSSION ITEMS
SCHOOL IMPROVEMENT ACTIVITIES INCLUDING LEVY PROPOSAL
The Brooklyn Center School District discussed levy attempts and discussions with legislators
and state officials regarding funding. The reduced levy amount and what it would equate to for
each student and the amount per household reflected in property taxes was discussed. Open
enrollment and the effects of such on the School District and its funding were discussed along
with grants and how grants are not a stable source of funding for the School District. It was
indicated that the School District receives $6,000 for each open enrollment student and $8,000
for each resident student. Capacity and how open enrollment will be turned down once capacity
is reached was discussed along with Special Education students which consist of 12% and the
funding for Special Education. There was discussion on Community Education where the
funding distribution was explained and it was indicated that the funding is already allotted to the
Community Education program and that the money can not be used elsewhere. The beneficial
Community Education programs were discussed.
08/13/07 -1- DRAFT
CITY DEVELOPMENT EFFORTS
There was discussion on the potential joint efforts between the School District and the City such
as after school programs offered through Community Activities, Recreation Services (CARS).
Mr. Boganey discussed various development activities such as vacant lots to be developed,
current application for a Wal-Mart to replace Mervyn's in the Brookdale mall, Opportunity Site,
and Embassy Suites Hotel. He stated these various developments should help to increase
commercial property values in Brooklyn Center.
ADJOURNMENT
Councilmember Lasman moved and Councilmember Ryan seconded adjournment of the meeting
at 6:46 p.m.
Motion passed unanimously.
08/13%07 -2- DRAFT
MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL
OF THE CITY OF BROOKLYN CENTER 1N THE COUNTY
OF HENNEPIN AND THE STATE OF MINNESOTA
REGULAR SESSION
AUGUST 13, 2007
CITY HALL COUNCIL CHAMBERS
1. INFORMAL OPEN FORUM WITH CITY COUNCIL
CALL TO ORDER INFORMAL OPEN FORUM
The Brooklyn Center City Council met in Informal Open Forum called to order by Mayor Tim
Willson at 6:45 p.m.
ROLL CALL
Mayor Tim Willson and Councilmembers Kay Lasman, Mary O'Connor, Dan Ryan, and Mark
Yelich. Also present were City Manager Curt Boganey, Public Works Director/City Engineer Todd
Blomstrom, Community Development Director Gary Eitel, Planning and Zoning Specialist Ron
Warren, City Attorney Charlie LeFevere, and Deputy City Clerk Camille Worley.
Mayor Tim Willson opened the meeting for the purpose of Informal Open Forum.
No one addressed the City Council.
Councilmember Lasman moved and Councilmember Ryan seconded to close the Informal Open
Forum at 6:48 p.m.
Motion passed unanimously.
2. INVOCATION
Mayor Willson requested a moment of silence as the Invocation.
3. CALL TO ORDER REGULAR BUSINESS MEETING
The Brooklyn Center City Council met in Regular Session called to order by Mayor Tim Willson at
7:02 p.m.
4. ROLL CALL
Mayor Tim Willson and Councilmembers Kay Lasman, Mary O'Connor, Dan Ryan, and Mark
Yelich. Also present were City Manager Curt Boganey, Public Works Director/City Engineer Todd
Blomstrom, Community Development Director Gary Eitel, Planning and Zoning Specialist Ron
Warren, City Attorney Charlie LeFevere, and Deputy City Clerk Camille Worley.
5. PLEDGE OF ALLEGIANCE
The Pledge of Allegiance was recited.
08/13/07 -1- DRAFT
6. COUNCIL REPORT
Councilmember Ryan reported attending the National Night Out celebration where he participated in
a ride along with a Brooklyn Center Police Officer and other members of the community. He stated
it was great to see the residents participate in National Night Out.
Councilmember Lasman reported attending the Brooklyn Center Business Association picnic
luncheon on July 26, 2007 with the purpose of networking. She stated she was not able to
participate in National Night Out because she was out of town.
Councilmember Yelich reported attending the Nation Night Out events and complimented the
residents, businesses, and City Staff on the event.
Councilmember O'Connor reported attending the National Night Out festival at City Hall where
many residents attended. She also participated in a ride along which was informative and interesting.
Mayor Willson reported attending the Crime Prevention meeting where communiTy members and
vendors were in attendance. He reported attending the Kick Off and National Night Out events. He
stated the City Council just met with the Brooklyn Center School District regarding the district and
financial issues.
Councilmember O'Connor requested the following change to the Work Session minutes of July 23,
2007:
Pa�e 1
A maioritv consensus of the Citv Council asreed to informallv extend the time frame.
It was the majority consensus of the City Council to amend the requested correction to: A maioritv_
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o se sus of the Crtv Council and Citv Mana�er asreed to mformallv extend the time frame.
Councilmember Yelich requested the following change to the Work Session minutes of July 23,
2007:
Page 1
There was discussion on utilizing a third party to assist in the facilitation of a City Manager
Performance Review. Concern was expressed that a third party facilitator would prevent the City
Council from x r in
e p ess g themselves freel The o tion of a surve to assist in facilitation of the
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erformance review was discussed. The o tion of a 60 /o obiective and 40 /o subiective
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e�est�ve component to the performance review process was suggested to assist in accurate
outcomes. It was suggested that the City Manager inform the City Council what he has worked on
and accomplished since he started as City Manager.
Councilmember Yelich requested the following change to the Joint Work Session with the Financial
Commission minutes of July 30, 2007:
Pa�e 2
#4 Communitv Members will Feel Safe and Secure as Crime is Being Reduced
1. Crimes in targeted (problem) areas/properties will be reduced
2. Citizen feedback/perception regarding safety, security and crime will improve
08/13/07 -2- DRAFT
i 3. Crime rates in all classes of crimes will be reduced
4. The rate of Part 1�-�a� crimes will improve relative to comparable communities
It was the majority consensus of the City Council to sustain the minutes as it relates to the proposed
amendment to Page 2 of the Joint Work Session with the Financial Commission minutes of July 30,
2007.
7. APPROVAL OF AGENDA AND CONSENT AGENDA
Councilmember Lasman moved and Councilmember Yelich seconded to approve the Agenda and
Consent Agenda, with amendments to the July 23, 2007 Work Session minutes, and the following
consent items were approved:
7a. APPROVAL OF MINUTES
1. July 23, 2007 Study Session
2. July 23, 2007 Regular Session
3. July 23, 2007 Work Session
4. July 30, 2007 Joint Work Session w/ Financial Commission
7b. LICENSES
GARBAGE HAULERS
Darling International Inc 9000 382" Avenue, Blue Earth
Haugen's Haulers Inc 7386 31 Street SE, Buffalo
MECHANICAL
In-A-Vent Heating and Air 6101 104�' Circle, Brooklyn Park
Liberty Comfort Systems 627 East River Road, Anoka
Now Then Plumbing Inc 19960 Ferret St NW, Elk River
Suburban Air Conditioning 1290 B Osborne Road NE, Fridley
RENTAL
1604 68th Ln David Brooks
6305-6507 Camden Ave N Soderberg Apartment Specialists
4200 Lakebreeze Ave N Michael Lattery
5601 Lyndale Ave N Dragon Property Management
5547 Lyndale Ave N Dragon Property Management
5559 Lyndale Ave N Dragon Property Management
1519 Humboldt Pl N Suburban Properties LLC
1525 Humboldt PI N Suburban Properties LLC
1531 Humboldt Pl N Suburban Properties LLC
1537 Humboldt Pl N Suburban Properties LLC
1543 Humboldt Pl N Suburban Properties LLC
7206 W. River Rd. Jason Ingbretson
5301, 5305 Russell Ave N Nedzad Ceric
5329 Brooklyn Blvd. Malyun Ali
7015, 7021Brooklyn Blvd Jason Quilling
SIGNHANGER
Black Signs USA 700 West Division S, Waite Park
08/13/07 -3- DRAFT
Motion passed unanimously.
8. PRESENTATIONS/PROCLAMATIONS/RECOGNITIONS/DONATIONS
8a. PRESENTATION OF SERVICE ABOVE SELF AWARD TO BROOKLYN CENTER
POLICE DEPARTMENT
Frank Slawson, Past President, Rotary Club of Brooklyn Center presented the Service Above Self
Award to Police Chief Scott Bechthold on behalf of the Brooklyn Center Police Deparhnent.
Mayor Willson read details of the Service Above Self Award.
Police Chief Scott Bechthold thanked the Rotary Club of Brooklyn Center for the recognition and
for the Service Above Self Award.
8b. PROCLAMATION DECLARING THE MONTH OF SEPTEMBER 2007 AS
NATIONAL ALCOHOL AND DRUG ADDICTION RECOVERY MONTH
Mayor Willson read the Proclamation in its entirety.
Councilmember Lasman moved and Councilmember Yelich seconded to adopt Proclamation
Declaring the Month of September 2007 as National Alcohol and Drug Addiction Recovery Month.
Motion passed unanimously.
8c. RESOLUTION NO. 2007-104 RECOGNIZING AND COMMENDING WINNERS OF
THE 2007 CITY OF BROOKLYN CENTER LANDSCAPE AND GARDEN
CONTEST
Diane Sannes, resident, displayed a map showing the properties of the winners of the 2007
Landscape and Garden Contest. She presented a PowerPoint Presentation outlining the details of
each property named as a winner of the contest.
Mayor Willson recognized those garden contest winners who were present at the meeting.
Councilmember Lasman moved and Councilmember Yelich seconded to adopt RESOLUTION NO.
2007-104 Recognizing and Commending Winners of the 2007 City of Brooklyn Center Landscape
and Garden Contest.
Motion passed unanimously.
8d. RESOLUTION NO. 2007-105 EXPRESSING RECOGNITION AND APPRECIATION
OF JOYCE GULSETH FOR HER 17 YEARS OF DEDICATED SERVICE TO THE
CITY OF BROOKLYN CENTER
Mayor Willson read the Resolution in its entirety.
Councilmember Lasman moved and Councilmember Ryan seconded to adopt RESOLUTION NO.
2007-105 Expressing Recognition and Appreciation of Joyce Gulseth for her 17 Years of Dedicated
Service to the City of Brooklyn Center.
08/13/07 -4- DRAFT
Motion passed unanimously.
8e. RESOLUTION NO. 2007-106 EXPRESSING RECOGNITION AND APPRECIATION
OF GRAYDON BOECK FOR HIS DEDICATED PUBLIC SERVICE ON THE
PLANNING COMMISSION
Mayor Willson read the Resolution in its entirety and presented the Resolution to Graydon Boeck.
Councilmember Lasman moved and Councilmember Ryan seconded to adopt RESOLUTION NO.
2007-106 Expressing Recognition and Appreciation of Graydon Boeck for His Dedicated Public
Service on the Planning Commission.
Motion passed unanimously.
9. PUBLIC HEARING
None
10. PLANNING COMMISSION ITEMS
10a. PLANNING COMMISSION APPLICATION NO. 2007-013 SUBMITTED BY BRAD
SCHUMACHER. REQUEST FOR SITE AND BUILDING PLAN APPROVAL FOR A
SIX STALL GARAGE AT THE APARTMENT LOCATED AT 5240 DREW AVENUE
NORTH. THE PLANNING COMMISSION RECOMMENDED APPROVAL OF
THIS APPLICATION AT ITS AUGUST 23, 2007, MEETING.
Planning and Zoning Specialist Ron Warren introduced the item and discussed information
presented in the Staff Report.
Mr. Schumacher, 5240 Drew Avenue North, discussed the lighting on the property.
Councilmember Lasman moved and Councilmember Yelich seconded to approve Planning
Commission Application No. 2007-013 subject to the following conditions recommended by the
Planning Commission:
1. The building plans are subject to review by the Building Official with respect to applicable codes
prior to the issuance of permits.
2. Grading and drainage plans are subject to review and approval by the City Engineer prior to the
issuance of permits.
3. The plans shall be modified in the following manner:
a. The maximum drivewa width for the new drivewa onto Drew Avenue to be no more than
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24 ft. wide at the property line.
b. To show the location of the relocated trash enclosure to be provided with an opaque
screening device at least 6 ft. high to include a solid screen gate.
4. The applicant shall obtain a driveway permit from the Engineering Department for the proposed
access onto Drew Avenue North.
Motion passed unanimously.
11. COUNCIL CONSIDERATION ITEMS
08/13/07 -5- DRAFT
lla. AN ORDINANCE AMENDING CHAPTER 3 OF THE CITY CODE OF
ORDINANCES REGARDING ADOPTION OF THE MINNESOTA STATE
BUILDING CODE
Mr. Boganey introduced the item, discussed the history, and stated the purpose of the proposed
Ordinance amendment.
Councilmember Lasman moved and Councilmember Ryan seconded to approve first reading and set
second reading and Public Hearing for September 10, 2007.
Motion passed unanimously.
llb. RESOLUTION NO. 2007-107 APPROVING FINAL PLAT FOR LA DEY TWIN
LAKE TOWNHOMES
Mr. Boganey introduced the item, discussed the history, and stated the purpose of the proposed
resolution.
Public Works Director/City Engineer Todd Blomstrom discussed information presented in the Staff
Report.
Councilmember Yelich moved and Councilmember Ryan seconded to adopt RESOLTION NO.
2007-107 Approving Final Plat for LA DEY TWIN LAKE TOWNHOMES.
Motion passed unanimously.
llc. RESOLUTION NO. 2007-108 REJECTING BIDS FOR IMPROVEMENT PROJECT
NO. 2007-11, LIFT STATION NO. 2 FORCE MAIN IMPROVEMENTS AND
AUTHORIZING SOLICITATION OF BIDS WITH 2O08 CAPITAL IMPROVEMENT
PROJECTS
Mr. Boganey introduced the item, discussed the history, and stated the purpose of the proposed
resolution.
Councilmember Lasman moved and Councilmember O'Connor seconded to adopt RESOLTION
NO. 2007-108 Rejecting Bids for Improvement Project No. 2007-11, Lift Station No. 2 Force Main
Improvements and Authorizing Solicitation of Bids with 2008 Capital Improvement Projects.
Motion passed unanimously.
lld. RESOLUTION NO. 2007-109 CALLING FOR A PUBLIC HEARING ON
PROPOSED SPECIAL ASSESSMENTS FOR DELINQUENT PUBLIC UTILITY
SERVICE ACCOUNTS
Mr. Boganey introduced the item, discussed the history, and stated the purpose of the proposed
resolution.
Councilmember Ryan moved and Councilmember Lasman seconded to adopt RESOLTION NO.
2007-109 Calling for a Public Hearing on Proposed Special Assessments for Delinquent Public
Utility Service Accounts
08/13/07 -6- DRAFT
Motion passed unanimously.
lle. RESOLUTION NO. 2007-110 DECLARING A PUBLIC NUISANCE AND
ORDERING THE REMOVAL OF DISEASED TREES
Mr. Boganey introduced the item, discussed the history, and stated the purpose of the proposed
resolution.
Councilmember Lasman moved and Councilmember Ryan seconded to adopt RESOLTION NO.
2007-110 Declaring a Public Nuisance and Ordering the Removal of Diseased Trees.
Councilmember O'Connor voted against the same. Motion passed.
12. ADJOURNMENT
Councilmember Lasman moved and Councilmember Yelich seconded adjournment of the City
Council meeting at 8:05 p.m.
Motion passed unanimously.
08/13/07 -7- DRAFT
MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL/ECONOMIC
DEVELOPMENT AUTHORITY OF THE CITY OF BROOKLYN CENTER
1N THE COUNTY OF HENNEPIN AND
THE STATE OF MINNESOTA
WORK SESSION
AUGUST 13, 2007
CITY HALL COUNCIL CHAMBERS
CALL TO ORDER
The Brooklyn Center City CounciUEconomic Development Authority (EDA) met in Work
Session called to order by Mayor/President Tim Willson at 6:48 p.m.
ROLL CALL
Mayor/President Tim Willson and Councilmembers/Commissioners Kay Lasman, Mary
O'Connor, Dan Ryan, and Mark Yelich. Also present were City Manager Curt Boganey, Public
Works Director/City Engineer Todd Blomstrom, Planning and Zoning Specialist Ron Warren,
Community Development Director Gary Eitel, and Deputy City Clerk Camille Worley.
2011 BROOKLYN CENTER CELEBRATION CITY COUNCIL
City Manager Curt Boganey introduced the item and discussed participation by other community
groups. He stated if deemed appropriate by the City Council, $2,500 per year will be allocated in
the budget towards the 2011 Brooklyn Center Celebration.
Opinions were expressed that because the celebration is for the recognition of the centennial of
the City, a larger amount should be set aside for the celebration.
An opinion was expressed that the celebration should not be funded by the City.
There was discussion on the amount of money that should be allocated to the 2011 Brooklyn
Center Celebration.
ADJOURN WORK SESSION TO CITY COUNCIL MEETING
Councilmember Lasman moved and Councilmember Ryan seconded to adjourn the Work
Session at 6:59 p.m.
Motion passed unanimously.
RECONVENE WORK SESSION
Councilmember Lasman moved and Councilmember O'Connor seconded to reconvene the Work
Session at 8:06 p.m.
Motion passed unanimously.
08/13/07 -1- DRAFT
The formation of a 2011 Brooklyn Center Celebration Committee was discussed where Mr.
Boganey indicated that staff would return to the City Council with a set of parameters of how big
the committee will be and parameters for the use of the funds. He suggested that a staff member
be assigned to work with the committee. He stated the committee should not be able to expend
the funds, however request the funds through the designated staff person. He stated the City
Council should consider designating a Council Member to serve on the committee.
It was the majority consensus of the City Council to reflect an allocated $20,000 ($5,000 per
year) in the budget for the 2011 Brooklyn Center Celebration.
A letter was distributed to the City Council from Kathleen Cartnody regarding the Watershed
Commission Update. The City Council discussed the information presented in the letter.
There was discussion amongst the City Council regarding the achievement of one of the City
Council goals to reduce or maintain property taxes when a 4% Tax Levy increase is proposed.
There was discussion on reducing the levy but maintaining or improving the level of service.
ADJOURNMENT
Councilmember/Commissioner Lasman moved and Councilmember/Commissioner Ryan
seconded adjournment of the City CounciUEconomic Development Authority Work Session at
9:17 p.m.
Motion passed unanimously.
08/13/07 -2- DRAFT
MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL
OF 'THE CITY OF BROOKLYN CENTER IN THE COUNTY
OF HENNEPIN AND THE STATE OF MINNESOTA
JOINT WORK SESSION WITH FINANCIAL COMMISSION
AUGUST 20, 2007
CITY HALL COUNCIL CHAMBERS
CALL TO ORDER
The Brooklyn Center City Council met in Joint Work Session with the Financial Commission called
to order by Mayor Tim Willson at 6:30 p.m.
ROLL CALL
Mayor Tim Willson and Councilmembers Kay Lasman, Mary O'Connor, Dan Ryan, and Mark
Yelich. Also present: City Manager Curt Boganey, Fiscal and Support Services Director Dan Jordet,
Lieutenant Kevin Benner, and Deputy City Clerk Camille Worley.
Others present were Financial Commission Chairperson Mark Nemec and Commissioners Todd
Boster, Jessica Roerick, Philip Berglin, and Rex Newman.
Financial Commissioner Susan Shogren Smith was absent and excused.
Financial Commissioner Gene Maze was absent and unexcused.
REVIEW GENERAL FUND DRAFT PRELIMINARY BUDGET AND MAXIMUM TAX
CAPACITY LEVY
The City Council and Financial Commission discussed the following:
Revenues including liquor licenses and rental licenses.
The use of the fund balance and transferring $40,000 into 2008 to fund the completion of the
Comprehensive Plan as anticipated in 2007.
Expenditures of the 2008 General Fund Balance.
City Manager Curt Boganey discussed various aspects of the Police Department specifically new
positions including two Code Enforcement Officers. He discussed the transition from previous
positions in the Police Department to the Code Enforcement Officer position. Mr. Boganey
introduced a proposed program to assist with the prevention of crime by working with at-risk youth.
Lieutenant Kevin Benner discussed training to assist officers in dealing with youth. He stated the
proposed program would be similar to the Peacemakers Program, however handled within the Police
Department. There was discussion on a fee per service. There was a discussion on proactive
approaches to address youth concerns such as safety camp and programs and methods to determine
trouble children through the school system and school liaison officers.
08/20/07 -1- DRAFT
There was discussion on the PERF stud and the resources available if there were a need to
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implement response to items identified in the study.
There was discussion on the reduction of crime that appears to be coming from Minneapolis.
Lieutenant Benner discussed types of anticipated crimes and groups of offenders. He discussed the
shortage of officers to dispatch to special task forces. He discussed how such offenders are able to
rent property in Brooklyn Center and explained that in many cases a girl&iend or other friend will
rent the residence while the offender resides there. He discussed continued efforts to require
landlords to know who is living on their property. He discussed preventative measures to identify
problem youth and invite them to discussions regarding their particular criminal nature.
There was discussion on amendmg the ordmance to allow a penalty for those property owners who
are found to be renting their property without a rental license.
There was discussion on the Auto Theft Prevention Grant and what the funding will be used for.
Mr. Boganey stated there is one new patrol officer proposed in the budget which will be an
additional officer.
The need for a Commercial Fire Inspector was discussed where the possibility of a Volunteer
Firefighter or a Code Enforcement Officer taking responsibility for the Commercial Fire Inspection
duties was indicated.
The City Council and Financial Commission discussed the following:
The Liquor Fund.
Funding the Capital Replacement Plan by allotting funds each year, over the next five years
until the fund is fully funded. It was indicated that the first 1/5 is included in the 2008
budget.
Emergency Sirens being funded one per year for the next four years out of the Liquor Fund.
Work with the Charter Commission to pass the Administrative Fines as a source of revenue
which will also reduce prosecution cost.
Staffing levels where it was indicated that there are l O less total positions from 2001.
Increases in Law Enforcement pension contribution that increased the personnel costs.
REVIEW DEBT SERVICE FUND AND MARKET VALUE TAX LEVY
There was discussion on the 2008 Debt Service Budget for 2004A Building Bonds.
REVIEW HOUSING AND REDEVELOPMENT AUTHORITY BUDGET AND TAX
CAPACITY LEVY
There was discussion on the 2008 Housing and Redevelopment Authority (HRA) Budget.
There was discussion on the Proposed Property Tax Levy where an opinion was expressed that taxes
should not be increased for Code Enforcement and that with the additional Local Government Aid,
the tax le should not be increased b 4%.
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08/20/07 -2- DRAFT
REVIEW BUDGET MEETING SCHEDULE
The Ciry Council and Financial Commission discussed the Budget Meeting Schedule.
OTHER BUSINESS
Mr. Boganey discussed the Early Budget Estimates for Nearby Cities.
I The Financial Commission was asked to share their thoughts on the proposed 4% increase in Tax
Levy. The following opinions were expressed:
Would rather not see an increase in property taxes; however find the increase acceptable due
to the circumstances and goals set forth.
Salary increases should be less than proposed in order to reduce the tax levy increase.
The City Council does not have a choice but to increase the tax levy in order to provide the
level of expected service.
Code Enforcement efforts could be reduced in order to reduce the tax levy increase.
Tax levy increase of 4% is reasonable and allows for a workable budget, however would like
to see more money set aside for contingency.
ADJOURNMENT
Councilmember Lasman moved and Councilmember Ryan seconded to adjourn the Work Session at
8:41 p.m.
Motion passed unanimously.
08/20/07 -3- DRAFT
v
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I
COUNCIL ITEM MEMORANDUM
TO: Curt Boganey, City Manager
FROM: Sharon Knutson, City Clerk )��'1L�J1�9`��`��``(1 wuP.�Y�
DATE: August 23, 2007
SUBJECT: Licenses for Council �pproval
Recommendation•
I recommend that the City Council approve the following list of licenses at its August 27, 2007,
meeting.
Backgroundc
The following businesses/persons have applied for City licenses as noted. Each business/person
has fulfilled the requirements of the City Ordinance governing respective licenses, submitted
appropriate applications, and paid proper fees.
AMUSEMENT DEVICE
NAMCO CYBERTAINMENT INC 877 Supreme Drive, Bensenville, IL
(Regal Cinemas, 6420 Camden Ave N)
MECHAIVICAL
Discount Appliance 1051 109�' Ave NE, Blaine
Sabre Heating A/C 3062 Ranchview Lane, Plymouth
RENTAL
See Attached
SIGNHANGER
Arrow Designs International 13715 Aberdeen Str NE, Hazn Lake
Sign A Rama 353 Willow Bend, Crystal
Budget Issnes:
There aze no budget issues to consider.
w #�+�n�� �.r+��n�� ��+���l� ���!"O�ra� c�r1 ����tst �t��
taspeetior�s� �.����0 .��x.:C�#�����t+��....� Assessing
.s
��'tl�l��
�1A#�?l��� t�el�c� ���tq.
��n���l r��1,t�s �a���::
�����y Ac����ss �t�.
�r��r ��II� f��r ��tw�r��e
Lutheran Social
3612 55th Ave N Single Family Renewal Service of MN none per 12-911 ordinance OK OK
3313 63rd Ave N Single Family Renewal Yuan Paul Xiong �none per 12-911 ordinance Ok Ok
5118 66th Ave N Single Family Renewal Scott Hanson �none per 12-911 ordinance OK OK
1609 68th Ln Single Family Renewal Jeremy Ziegler none per 12-911 ordinance OK OK
5415 69th Center Park
(Maranatha Place) 1 Bldg, 65 Units Renewal Senior Apts, Inc. none per 12-913 ordinance OK OK
.43 calls for service per 12-913 ordinance,
6700 Humboldt Ave 2 burglary, 8 disturbing peace, 4 fire alarms,
(Sterling Sq.) 4 Bldgs, 54 Units Renewal John Roder 2 robbery, 1 sex crime, 3 thefts OK OK
Steven
5324, 26 James Ave N 2 Family Renewal Debra Elhardt none per 12-911 ordinance (both sides run) OK OK
r5517 Knox Ave N Single Family Renewal Roger Harris �none per 12-911 ordinance OK OK
j5712 Logan Ave N Single Family Renewal Dwayne Meier 1 theft per 12-911 ordinace OK OK
6906 Toledo Ave N Single Family Renewal Edward Roe 1 narcotics per 12-911 ordinance OK OK
Benjamin
2928 67th LN Single Family Initial Nicole Tramm none per 12-911 ordinance OK OK
�6234 Brooklyn Blvd Single Family Initial Thomas Johnson �none per 12-911 ordinance OK OK
Magdaline
5725 Emerson Ave N Single Family Initial Opare-Addo 2 disturbing peace calts per 12-9Z1 OK OK
�7236 Emerson Ave N Single Family Initial Charley Vang �none per 12-911 ordinance OK OK
Yang Moua
5801 Girard Ave N Single Family Initial Diana Cha none per 12-911 ordinance OK OK
7224 Major Ave N Single Family Initial Charley Vang �none per 12-911 ordinance OK OK
4727 Wingard Ln Single Family tnitial Tenneh Johnson �none per 12-911 ordinance OK OK
1
COUNCIL ITEM MEMORANDUM
TO: Curt Boganey, City Manager
FROM: Shazon Knutson, City Clerk (�,��,�/C
DATE: August 20, 2007
SUBJECT: Applications and Permits for Temporary On-Sale Liquor Licenses Submitted By
St. Alphonsus Church, 7025 Halifax Avenue North, for Events to be Held
October 6-7 2007
February 9, 2008, Mazch 15, 2008, and May 3, 2008
Recommendation:
I recommend that the City Council consider approval of the applications and permits for
temporary on-sale liquor licenses submitted by St. Alphonsus Church, 7025 Halifax Avenue
North, for events to be held October 6-7, 2007, February 9, 2008, March 15, 2008, and May 3,
2008.
Background:
St. Alphonsus Chwch, 7025 Halifax Avenue North, has submitted four applications and pernuts
for temporary on-sale liquor licenses for events to be held on October 6-7, 2007, February 9,
2008, March 15, 2008, and May 3, 2008. The applicant has satisfied the City's requirements and
submitted the $25 fee for each license, along with a certificate of coverage for liquor liability
insurance. It is recommended that the City Council approve the applications and permits for
temporary on-sale liquor licenses submitted by St. Alphonsus Church. After Council review, the
applications and permits will be forwazded to the Minnesota Department of Public Safety
Alcohol and Gaznbling Enforcement Division for approval.
Minnesota Statutes 340A.404, Subd. 10 reads as follows:
Temporary on-sale licenses. The governing body of a municipality may issue to (1) a
club or charitable, religious, or other nonprofit organization in existence for at least three
yeazs, (2) a political committee registered under section 10A.14, or (3) a state university, a
temporary license for the on-sale of intoxicating liquor in connection with a social event
within the municipality sponsored by the licensee. The license may authorize the on-sale
of intoxicating liquor for not more than four consecutive days, and may authorize on-sales
on premises other than premises the licensee owns or permanently occupies. The license
may provide that the licensee may contract for intoxicating liquor catering services with
the holder of a full-year on-sale intoxicating liquor license issued by any municipality.
The licenses are subject to the terms, including a license fee, imposed by the issuing
municipality. Licenses issued under this subdivision are subject to all laws and ordinances
governing the sale of intoxicating Iiquor except sections 340A.409 and 340A.504,
subdivision 3, paragra.ph (d), and those laws and ordinances which by their na.ture are not
applicable. Licenses under this subdivision are not valid unless first approved by the
commissioner of public safety.
Budget Issues:
There are no budget issues to consider.
�'t�
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Minnesota Department of Public Safety
ALCOHOL AND GAMBLING ENFORCEMENT DIVISION
444 Cedar Street Suite 133, St Paul MN 55101-5133
(651) 201-7507 Fax (651) 297-5259 T'TY (651) 282 6555
W W W.DPS.STATE.MN.US
APPLICATION AND PERMIT
FOR'A 1 TO 4 DAY TEMPORARY ON-SALE LIQUOR LICENSE
TYPE OR PR1NT INFORMATION
NAME OF ORGANIZATION DA ORGANIZED TAX EXEIv�'f NUMBER
�i1 e Cct�o t�c �lu.�. ve1� c� S�A�(,phor�u5 z-1 L� 1asq� �5 3�-o �SC /�1 �tl�
STREET ADDRESS CITY STATE ZIP CODE
�7c� t��(� X N b�ool�n C�c�e�- SS
NAME OF P N MAKING APPLICATION BUSINESS PHONE HOME PHO
�r U'�H C� c�� (�To3 5'(o1-�/d p N/"►
DATES LIQUOR Yl���B� SOLI� D �E�OF HARITABLE O IRFL.iC*IOU� nTHFR NONPROFIT
C�C �t,r �P
ORGANIZATION OFFICER'S NAME ADDRESS
�r P��c.�. 6r� 7o?c� ��t �'U .�V.
O. IZATION OFFICER'S NAME t�DDRESS
QRGANIZATION OFFICER'S NAME `�rHHR:,3•�
I�at�orrlicense ►w Il be used. lf an or
�..��ns�c3 C SS ll
W ill the applicarn contract for,�ntp�ating liquor service? If so, give the name and address of the liquor licensee providing the service.
U
Will the applicant li uor liability insurance? ��o pl ase provide csrrier's name and amou coverage.
`�C—,5 �`n�W`'o-��'� i�(.t�e��t .�r �Q �K l'� wb�.Lt R
S-� e r� ��-�'le� C'�1J1 idlci-�n 4'
APROVAL
APPLICATION MUST BE APPROVED BY CITY OR COUNTY BEFORE SUBMITTING TO ALCOHOL GAMBLING
ENFORCEMENT
�CITYJ�OUNTY G VI DATE APPROVED
CITY FEE AMOUNT ��'J� LICENSE DATES
DATE FEE PAID
SIGNATURE CTfY CLERK OR COUNTY OFFICIAL APPROVED DIRECTOR ALCOHOL AND GAMBLING ENFdRCEMENT
NOTE: Submit t6is form to the city or county 30 days prior to event Forward applicatioo signed by city and/or connty to the address
above. If tde appUcatbn �S spproved t6e Aloohol and Gambiiog Eofonxroeet Diveioo will return this apptication to be used as t6e License tOr the eveat
PS-09079 (OS/06)
1
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Minnesota Department of Public Safety
ALCOHOL AND GAMBLING ENFORCEMENT DIVISION
a 444 Cedar Street Suite 133, SL Paul MN SS101-5133
(651) 201-750'7 Fax (651) 297-5259 TTY (651) 282-6555 it���
W W W.DPS.STATE.MN.US
APPL[CATION AND PERMIT
FOR A 1 TO 4 DAY TEMPORARY ON-SALE L[QUOR LICENSE
TYPE OR PRINT MFORMATION
NAME OF ORGANIZATION DAT ORGANIZED TAX EXEMPT NUMBER
�Gr e Ca-f-�aa I�c C'1�.�. c� �.S-� �l-(,��t�r�5 L�Z.� l°+s`� E5 3 a-� 5�S"C
c•
STREET ADDRESS r A CITY STATE ZIP CODE
'7L: �-S f-� ot. i--Ye� X n1t,� 1`.� �Yt� %"1 vuq� M/� j��d' t
V
NAME OF P ON MAKING APPLICATION BUSiNESS PHONE HOME PHO
�r. U'�r�c.� G��(� c�3 stol-�iaa c� N�
DATES L[QUOR V�I,�$E SO� Q� �p HARiTAB1.E O I RF_LIC'.IOL1� (1
�R NONPROFIT
ORGANIZATION OFFICER'S NA1vtE ADDRESS
�`r• �a�Ylc�. �ri 7o�c� �r�-� .'�t1
OR�NIZATION OFFICER'S NAME qDDRESS
pRGANIZATiON OFFICER'S NAME �i;.
L�zcatiairti"cense will be used. If at�ao�+tdoo�� scribe 5 I 1
JT 't-I�
r
Will the applicant contract for intoxicatiQg 1�g�uQr service? If so, give the name and address of the liquor licensa }xoviding the service.
V CJ
Vuill the ap licant carry liquor clity i surana? If so, please provide the carrier' name d a ount of cove
��.�c'e �u���..Q �-e�e af��.�� �ft
r v�,,�,�t�a-rr�.e-sz
APROVAL
APPLICATION MUST BE APPROVED BY C[TY OR COUNTY BEFORE SUBMITTING TO ALCOHOL GAMBLING
ENFORCEMENT
ITY OUNTY DATE APPROVED
CITY FEE AMOUNT i�D LICENSE DATES
DATE FEE PA[D
SIGNATURE CI'CY CLERK OR COIiNTY OFFICIAL APPROVED D[RECTOR ALCOHOL AND GAMBLING ENFORCEMENT
NOTE: Submit thia form to t6e city or county 30 days prior to event Forwsrd application sigoed by city andlor oounty to the address
above. If the applicatien is approved the AlcoAol and Gambiing Eoforcemeat Divisbn wfll returo this Appiication to be used as t6e Licenae for the evmt
PS-09079 (OS/06)
QC1,�c G� S
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Minnesota Department of Public Safety
ALCOHOL AND GAMBLING ENFORCEMENT DNISION A
444 Cedar Street Suite 133, St Paul MN 55101-5133
{651) 201-7507 Fax (651) 297-5259 T"CY (651) 282-6555
W W W.DPS.STATE.MN.US
APPLICATION AND PERMIT
FOR A 1 TO 4 DAY TEMPORARY ON LIQUOR LICENSE
TYPE OR PRINT iNFORMATION
NAME OF ORGANIZATION DAT ORGANIZED TAX EXEMPT NUMBER
c�u,a i�C r'.��.��h s{�.����� z�z..� jr�s� �s �-�;U)
STREET ADDRESS CTTY STATE ZIP CODE
�..5 r yr ,�,�-z !l.� �vco(�yr� C�t(� SS4�d
NAME OF P ON MAKING APPLtCATION BUSINESS PHONE HOME PHO E
�r. V'�-4r►�� Gt�(� c�3 s�ol-s'ioo c� N
DATES LIQUOR V�I�.L BE SQL�D TYPE OF ORGANIZATTOl�i.�
,�Nltt�t c^_(/'1 I S�r G�:x7� Ci.IJB GH.�RITABLE t F.I IO I tYCHERNONPROFIT
ORGANIZATION OFFICER'S NAME ADDRESS
-�r. (l��I r� I 70�� �.t-�.� ./U:
OR�rANIZAT[ON OFFICER'S NAME ADDRESS
...._-1
QRGANIZATION OFFICER'S NAME �tBHR£9�
L,�catiarriioensewi(l ribe C SS
Yt !`-�-'L
Will the applicant contract for intoxicating liquor �rvyc�lf so, give the name and address of the liquor licensee providing the service.
V
W ill the applicant c�uor lia ilEty insurance� �f so, P Prov' e the carrier's name and amount of coverage.
O /l�� [.C_ �,�/l r'`-
�.e,� a r�-��.�-er�' `t vt�=c�v( a--�-( C�d�--�
APROVAL
APPLICATION MUST BE APPROVED BY CITY OR COUNTY BEFORE SUBMITTING TO ALCOHOL GAMBLINC
ENFORCEMENT
ITY OUNTY I DATE APPROVED
CITY FEE AMOUNT ��J W LICENSE DATES
DATE FEE PAtD
SIGNATURE CITY CLERK OR COLiNTY OFFICiAL APPROVED DIRECTOR ALCOHOL AND GAMBLING ENFORCEME;VT
NOTE: Submit t6is form to the city or county 30 days prior to evenk Forward application signed by city snd/or county to the address
above. if the applicatMa is approved the Alrn6ol snd Gambiinf Enforcemeat Division will retnre t6is spplicetioo Go be used ss the License for t6e eveot
P$-09079 (05/06)
f°'
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Minnesota Deparlment of Public Safety
ALCOHOL AND GAMBLING ENFORCEMENT DIVTSION
444 Cedar Street Suite 133, St Paul MN 55101-5 L33
(65l 201-7507 Fax (651) 29'7-5259 TCY (651) 282-6555
W W W.DPS.STATE.MN.US
APPL[CATION AND PERMIT
FOR A 1 TO 4 DAY TEMPORARY ON LIQUOR LICENSE
TYPE OR PRINT INFORMATION
NAME OF ORGANIZATION DAT ORGANIZED TAX EXEMPT NUMBER
e Ca-�a !�c C�`,�uz. vch o� .�*�1��5 Z�Z� �r�s�( �5 �t.SC �-I �t�'
STREET ADDRESS CITY STATE ZIP CODE
�1c� �s t-��.1 il� �vcof�r, Cr�c�f�.� �•lN S S�c�°j
NAME OF P ON MAKMG APPLICATION BUSINESS PHONE HOME PHO E
�r U'� L� Gr c�o3 s�l-�'"io N�
DATES L[QUOR WILL BE SQLD 3 TYPE OF ORGANiZATIOl�i.�
./��a� f f'i .T 1R H RTTABLE t F.I .IO I CITHER NoNPROFIT
ORGANIZATION C)FFICER'S NAME ADDRESS
--�`r ���c,�-. C r� 7o�s' .�v-e .�U,.
OR� NIZATION OFFICER'S NAME D�DRESS
.r—
QRGANIZATIONOFFICER'SNAME� �t�HSii£SS
Lpcatiorriicense witl be used [f an outdoor area, de�r�e A I���n� S c ss
�f� J
Will the applicant contract for intoxieating t�uq �rvia? !f so, give t6e name and address of the liquor licensee providingthe service.
W iU the applicant quor liability i ce? so, please provide the carrier's name and am nt of coverage.
('Cl�df/I ra.� 1`� �c.� .l :�rr�.- y���f't� C�--�..0 c
�t.P Gt C�-� e�--t
APROVAL
APPLICATION MUST BE APPROVED BY CITY OR COUNTY BEFORE SUBMITTING TO ALCOH4L GAMBLING
ENFORCEMENT
CIT /COUNTY�'(�T��I DATE APPROVED
CITY FEE AMOUNT a�i LICENSE DATES
DATE FEE PA(D
SIGNATURE CITY CLERK OR COCTNTY OFFICIAL APPROVED DIRECTOR ALCOHOL AND GAMBLING ENFORCEMENT
NOTE: Submit this form to the city or county 30 dsys prior to eveot Forward application sigoed by city and/or county to t6e address
above. If t6e spplicetion is approved the Akahoi aad Gsmbling Enforcement Divisioa witl return t6is rpp8ntion to be ased as the Licxnse tor t6e eveet
PS-09079 (OS/06)
����i�.��.���,
COUNCIL ITEM MEMORANDUM
TO: Curt Boganey, City Manager
FROM: Ronald A. Warren, Planning and Zoning Sp ialist
DATE: August 22, 2007
SUBJECT: Site Performance Guarantee Reduction
Recommendation:
It is recommended that the City Council, authorize reduction from $40,000 to $10,000 of the
site performance guarantee posted for 6901 Brooklyn Boulevazd.
Background:
The following site performance guarantee being held by the City for completion of various site
improvements should be recommended to the City Council for reduction:
Brooklyn I, LLC (6901 Brooklyn Boulevard)
Planning Commission Application No. 2006-004
Amount of Guarantee -$40,000 (I.etter of Cred.it)
Obligor Brooklyn Center I, LLC
All of the site improvements and conditions for which a perfomiance guazantee was posted
have been installed for this approximate 3,700 sq. ft. multi-tenant retail building project at
6901 Brooklyn Boulevard. Grading, curb and gutter, storm sewer and other Engineering
Department requirements, including the submission of an as-built survey have been satisfied.
Landscaping for the project has generally been provided in accordance with the approved
landscape plan. There is a dead Scotch Pine located at the northwest corner of the site; fewer
Austrian Pines on the north and west green strips have been provided; and some shrubs planted
on the site appear to be dying. These matters all should be addressed prior final release of this
performance guarantee.
Landscaping should prove to be viable through the winter months and landscape deficiencies
should be addressed. Reduction is recommended with release considered following review of
the site in June 2008.
Budget Issues: There are no budget issues.
I
+r W-
7
COUNCIL ITEM MEMORANDUM
TO: Curt Boganey, City Manager
FROM: Sharon Knutson, City Clerk
DATE: August 20, 2007
SUBJECT: Resolution Expressing Recognition and Appreciation of Ronald Boman for His 39
Years of Dedicated Service to the City of Brooklyn Center
Recommendation:
I recommend that the City Council consider adoption of a Resolution Expressing Recognition
and Appreciation of Ronald Boman for His 39 Years of Dedicated Service to the City of
Brooklyn Center.
Background:
Ronald Boman has been an employee of the City of Brooklyn Center since March 11, 1968, and
will retire September 28, 2007, after more than thirly-nine years of dedicated service to the City
of Brooklyn Center.
Budget Issues:
There are no budget issues to consider.
Member introduced the following resolution and
moved its adoption:
RESOLUTION NO.
RESOLUTION EXPRESSING RECOG1vITION AND APPRECIATION OF RONALD
BOMAN FOR HIS 39 YEARS OF DEDICATED SERVICE TO 'TI-IE CITY OF
BROOKLYN CENTER
WHEREAS, Ronald Boman has been an employee of the City of Brooklyn Center since
March 11, 1968, and will retire Sepbember 28, 2007, after more than thirty-nine years of dedicated service
to the City of Brooklyn Center and its citizens; and
WHEREAS, Ronald Boman has consistently provided the City of Brooklyn Center and
its residents with dedicated public service during his tenure working in the capacities of Firefighter,
Lieutenant, Captain, District Chief, and Training Officer prior to becoming the Fire Chief and Emergency
Management Director; and
WH�REAS, Ronald Boman has performed each position in an exemplary fashion,
assuring that the best interests of the City and Fire Department were well served; and
WHEREAS, Ronald Boman has served as Fire Chief for 31 yea,rs and in 1988 was
appointed the first full-time Fire Chief for the Brooklyn Center Fire Department and was instrumental in
the creation of the Fire Department High Level Rope Rescue Team and the first Dive Rescue Team in the
North Suburban Regional Mutual Aid Pact; and was active in the creation of the joint powers fire training
center in Fridley; and oversaw the construction of the new West Fire Station that now contains a state-of-
�e_� ��g room, and the renovation of the East Fire Station; and was a staunch supporter of
firefighter safety by providing the best training and equipment available; and
WHEREAS, Ronald Boman has been an active member in several professional
organizations including International Association of Fire Chiefs, Minnesota State Fire Chiefs Association,
International Association of Arson Investigators, Hennepin County Fire Chief s Association,
Metropolit�► Fire Chiefs Association, Association of Minnesota Emergency Managers, and Metropolitan
Emergency Manager's Association, and
WHEREAS, the City Council of the City of Brooklyn Center wishes to recognize the
I professionalism with which Ronald Boman has discharged his duties and made a positive impact on the
community of Brooklyn Center.
NOW, TI�REFORE, BE IT RESOLVED by the City Council of the City of Brooklyn
Center, Minnesota, upon the recommendation of the City Manager, that the dedicated public service af
Ronald Boman is hereby recognized and appreciated by the City of Brooklyn Center.
Date Mayor
ATTEST:
City Clerk
The motion for the adoption of the foregoing resolution was duly seconded by member
and upon vote being taken thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
������.�i✓��..,�+. J� \rrt���r�*
i
rv
COUNCIL ITEM MEMORANDUM
TO: Curt Boganey, City Manager
FROM: R 'w
onald A. Warren, Plannmg and Zorung Sp�clalist �l
DATE: August 20, 2007
SUBJECT: Planning Commission Application No. 2007-016
Recommendation:
It is recommended that the City Council, following consideration of this matter, approve the
application subject to the conditions recommended by the Planning Commission.
Background:
On the August 27, 2007 City Council Agenda is Planning Commission Application No. 2007-
016 submitted by Adam Maier requesting Special Use Permit approval to operate a childcare
facility,in the commercial building located at 6415 Brooklyn Boulevard. This matter was
considered by the Planning Commission at their August 16, 2007 meeting and was
recommended for approval.
Attached for your review are copies of the Planning Commission Information Sheet for
Planning Commission Application No. 2007-016 and also an area map showing the location of
the property under consideration, the Planning Commission minutes relating to the
Commission's consideration of this matter and other supporting documents.
Budget Issnes: There are no budget issue,s.
Application Filed on 8-2-07
City Council Action Should Be
Taken By i0-1-07 (60 Days)
Planning Commission Information Sheet
Application No. 2007-016
Applicant: Adam Maier Leonard, Street and Deinard, PA)
Location: 6415 Brooklyn Boulevard
Rec}uest: Special Use Permit
The applicant, Adam Maier an attomey representing Arena Eazly Learning Center, Inc. and its
owner Antonio Smith, has submitted a request for Special Use Permit approval to operate a
childcare facility in the commercial building located at 6415 Brooklyn Boulevard.
The property in question is a triangulaz shaped pazcel zoned G1 (Service/Office) and contains an
approximate 8,600 sq. ft. office building that the applicant intends to convert into the childcare
facility. The property is bounded on the north by R-5 (Multiple Family Residence) and C-1
(Service/Office) zoned property containing the Brookhaven Apartments and the Brook Pazk
Dental Center respectively; on the east by Bmoklyn Boulevard with Gazden City Eleraentary
School on the opposite side of the street; on the south by R-1 (Single Family Residence) zoned
property containing six single farnily homes.
Group daycaze facilities aze listed as special uses in the C-1 zoning district per Section 35-320,
Subdivision 3b of the Zoning Ordinance. The Zoning Ordinance defines group daycare facilities
as a"facility licensed by the Minnesota Department of Public Welfare (now Department of
Human Services) to provide childcaze for six or more children at one time. This term also
includes but is not limited to facilities having programs for children known as nursery schools,
day nurseries, childcaze centers, play groups, daycare centers, cooperative daycare centers and
Head Start programs." Mr. Smith will have to obtain a program license from the Minnesota.
Department of Human Services relating to the operation of this facility. He has applied for such
a license and the City has been notified of the impending licensing, however, that notification
indicated licensing for 144 children, not the 210 children indicated in the applicant's letter of
application. Clazification of tlus point is in order, although city zoning regulations do not place a
lim.it on the number of children served in such a facility, that is a function of the State's licensing
program. We have requested the Department of Human Services to hald off granting of the
proposed program license until such time as a 5pecial Use Permit has been considered and
granted by the City of Brooklyn Center.
The applicant has submitted a letter outlining their proposal and explaining how they will comply
with the zoning requirements applicable to a childcare facility (copy attached).
Their plan is to modify the building for use as a da.ycare which will be subject to building code
and program licensing requirements. As mentioned, daycaze uses are listed as special uses in the
G1 zoning district provided they meet certain criteria established in the ordinance and also aze
8-16-07
Page 1
consistent with the city's standards for special use permits. Such facilities aze required to be
compatible wit1� and complimentary to existing adjacent land uses as well as those uses pernutted
generally in the C-1 district and also be of comparable intensity to pennitted C-1 uses. They aze
also to be designed to assure that generated traffic will be within the capacity of available public
facilities and not have an adverse impact upon those facilities, the immediate neighborhood or
the community. Traffic generated by other uses on the site are not to pose a danger to the
children served by the daycare use. Furthermore, outside recreational facilities shall be
appropriately sepazated from the parking and driving azeas by a wood fence not less than 4 ft. in
height; shall be located contiguous to the daycare facility; shall not be located in any yard
abutting a major thoroughfare unless buffered by a device set forth in Section 35-400; shall not
have an impervious surface over more than half the playground area; and sha11 extend at least 60
f�. from the wa11 of the building or to an adjacent property line, whichever is less, or shall be
bounded on not more than two sides by pazking and driving areas.
The applicant's comments relative to these provisions notes that their proposed use will he
compatible with existing land uses as we11 as those permitted in the C• 1 district generally noting
the properties surrounding the proposed facility. He points out that pmperties aze the type that
can function near a childcare facility without disturbance to the property. Additionally, the fact
that a school is currently located in the area indicates that the adjacent properties operate with
little trouble from children being located nearby: He also states that the use is complimentazy to
existing adjacent land uses pointing out the nearby residences, dental clinic, schools that are
adjacent to the property. He ad.ds that the childcare facility wluch is similaz to a school would be
amenity for local residents and further states his belief that the use is of comparable intensity to
other permitted land uses noting that the facility will produce the most activity during the early
morning and late afternoon hours and that even during these peak activity times the intensity will
be comparable to other office/service uses provided for under the C-1 zoning classification. He
adds that their project will likely produce less activity than other officetservice uses because they
will provide bus service for approximately 34 percent of the clutdren that are cared for. The
letter goes on to point out that the property is located adjacent t4 Brooklyn Boulevard, a major
thoroughfare in Brooklyn Center, a street that is well traveled and designed to handle a lazge
volume of traffic. 'The project will generate comparable traffic levels and the proposed use will
not impact traffic patterns. The applicant further adds that the property will only be used as a
childcare facility, and traffic from surrounding sites will not pose a threat to the children there.
The applicant has pmvided us with a survey of the property and a proposed site layout showi.ng
pazking, the building location and suirounding landscaping. Their plan is to provide a play
facility on the south side of the building which will be screened by a 6 ft. high wood opaque
fence. The play area proposed will meet the standards outlined in the city's zoning ordinance for
such facilities. It should be noted that where a C-1 use abuts R-1 use that there are screening and
green strip requirements. These green strip requirements have been provided and no
encroachment into the 15 ft green strip is anticipated. The previous office had constructed a 6 8.
high opaque fence along mast of the pmperty line with the adjoining single family residences.
Some of this fencing is in need of repair and will be repaired either by the current owner or the
8-16-07
Page 2
applicant. Screening of this facility with the abutting residential is essential as is the screening of
any outside trash disposal facilities. The applicant has assured that these matters will be
addressed and corrected.
We have also requested the applicant to review on site landscaping as it relates to the landscape
point system utilized by the Pianning Commission for evaluation landscape plans. The
applicant's architect has pmvided an analysis of the existing landscape. The site is 1.29 acres
and requires 1291andscape points. He notes that landscaping was reviewed on Apri127, 2047
and lists t�e landscape improvements such as shade trees, coniferous trees, decora.tive trees and
shiubs. Using the point system, there aze a total of 1451andscape points on the site which
exceeds the minimum required. Attached for the Commission's review is a copy of the
architect's analysis. It appears that landscaping on the site is appropriate and no additional
landscaping should be required.
SPECTAL USE PERMI'I' STANDARDS
As a special use, the proposal is required to meet the Standards for Special Use Permits
contained in Section 35-220, Subdivision 2 of the Zoning Ordinance (copy atta�hed). These
standards require that the proposed special use promote and enhance the general public welfare
and not be detrimentat to or endanger the health and safety of the public; not be injurious to the
use and enjoyment of other property in the immediate neighborhood nor substantially diminish or
impair property values; not impede the normal and orderly development of surrounding
properties; be designed so as to minimize haffic congestion on the publie streets; and conform
with applicable regulations of the district in which it is located. The Cornmission's attenrion is
directed to the applicant's response to the Standards for Special Use Permits contained in their
August 2, 20Q71etter. We find no conflict with the comments made and the Standards for
Special Use Permits. We would concur generally with the applicanYs comments and believe the
Standards for Special Use Permits can be met with the operation that they aze proposing.
Furthermore, it is b�lieved that the use is comparible with, complimentary to and of comparable
intensity to other uses in the C-1 district. The traffic generated by this use will. be within the
capacity of available public facilities and will not have an adverse impact upon those facilities,
the immediate neighborhood or the community in general.
A public hearing has been scheduled with respect to this Special Use Permit application and
notices have lieen sent to surrounding pmperty owners.
RECOMMENDATION
It is believed the application is in order and it is recommended that approval be granted subj ect to
the following conditions and considerations:
8-16-07
Page 3
1. The Speciai Use Pennit is granted for a gcaup daycare facility or childcare facility
subject to the granting of a license for this operation by the Minuesota Department
of Hwnan Services. The applicant sha11 show proof of this licensing and have a
current copy of said licensing on file with the city.
2. The daycare facility as proposed by the applicant meets the Standards for Special
Use Permits contained in Section 35-220, Subd.ivision 2b of the Zoning
Ordinance. Furthermore, the proposal is considered to be compatible with,
complimentary to and of compazable intensity to uses allowed in the C-1 zoning
district and that the proposal is planned and designed to assure that generated
traffic will be within the capacity of available public facilities and will not have an
adverse impact upon these facilities, the immediate neighborhood ar the
community.
3. The Special iTse Permit is subj ect all applicable codes, ordinances and
regulations. Any violation thereof may be grounds for revocation.
4. Any expaYtsion or alteration of the proposed use beyond that contained in this
submittal shall require an amendment to this Special Use Permit.
5. The play area shall be provided in a manner consistent with Section 35-411,
Subdivision 6 of the city's zoning ordinance and be continually maintained in this
manner.
6. The required 6 ft. high opaque screening requ.ired along the south property line
shall be repaired and maintained in a manner consistent with thc requirements af
the city ordinance.
7. Building plans for remodeling and occupancy of this building are subject to
approval of the Bui.lding Official prior to the issuance of these peanits.
8-16-07
Page 4
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LEONARD 150 SOUTH YIPTH ST'HEBT SUITE 1j00
MINNBAPOLIS, MJNN8S0'tA SS�Z
STREET 61z-335 aswtx
AND 6 is•335 i 6 57 Pwx
DEINARD
AD,vw D. Mn�R
612-335-1412 uutECT
ADAM.MAIER@LEONARD.COM
AAguSt 2, 20��
Ron Wanen
City of Brooklyn Center
Planning and Zoning Division
6301 Shingle Creek Parkway
Brooklyn Center, MN 55430
Re: Special Use Permit and Site Plan Review for Arena Early Learning Center,
Inc. Child Care Facility Project, 6415 Brooklyn Boulevard, Brooklyn Center,
Minnesota
Deaz Mr. Watren:
This letter is submitted on behalf of Arena Early Learning Center, Inc. and its owner, Antonio
Smith (collectively, "Arena Early Leaming Center" or "Arena"), in support of the enclos�
special use pernut applicarion and site plan review applicatian (the "Applications"). Arena Early
Learning Center desires to renovate an existing building for use as a child care facility (the
"Project") on a parcel in Brooklyn Center, which is legally described in Tab 1 attached hereto
(the "Property"}.
Please consider the following when reviewing the Applications:
Proiect Descrintion and Puroose. Areaa Early Learning Center has been operating a child care
center at 6201 Noble Avenue, Brooklyn Center since 2004. Since its inception, Arena's
enrollment has grown at an average of 60% per year. Child care services are currently provided
to 125 children and their families residing in Brooklyn Center and the �immediately surrounding
communities. Atena generally requires a one month advance enrollment due to limited space
and there aze currently ten families on Arena's waiting list. The available space at Arena's
current location has been maximized, thus, a relocation is necessary to accommodate the number
of families seeking child care services.
To meet the needs of the local child care market, Arena has executed a purchase agreement to
purchase the Property. The existing building on the Property will be renovated into a state-of-
the-art child care facility. The facility will permit a total of 210 children to receive child care
services. This increase of 85 available spaces allows those local families on Arena's waiting list
to begin receiving child care and will prevent families from being forced to wait for the needed
services in t�ie future.
LAW 011ICES IN M2NNEAP�LIS MANlS?O ST. CLOVD WASHINGTON� D.C. A Ptofesa3onal Aa�c�aaon
W W W.L80NAllD.COb[
Mr. Ron Warren
August 2, 2U07
Page 2
Proiect Zonine,. According to the City of Brooklyn Center Zoning Map, the Project is located in
the C 1(service/office) zoning district. The Brooklyn Center City Code of Ordinances, Section
35-320, provides that a child care facility is a special use in this zoning classification. At a June
28, 2007 meeting with planning staff, it was agreed that Arena would obtain a special use permit
for the Project. A special use pernzit far a child care center requires demonstration of the items
listed in City Code Section 35-320 and City Code Section 35-220.
A. Requirements applicable to special use as a child care facility.
Under City Code Section 35-320, the child care facility must be demonstrated to be:
(1 Comnarible with existing adiacent land uses as well as with those uses nermitted in the
C 1 district generallv.
Existing uses of neighboring properfies are:
North. Dental clinic, �oned C 1.
South. Residential property, zoned R1.
East. Garden City School, a local elementary school.
West. Large apartment complex, zoned R5.
These properties are the type that can function neaz a child care facility without disturbance to
the use of property. Additionally, the fact that a school is currently located in the area indicates
that the adjacent properties operate with little trouble from children being located nearby.
(2), Comnlementarv to existine adiacent land uses as well as to those uses vermitted in the C1
district generallv.
The current mix of property uses indicates that the neighborhood was intended as a residential
area including amenities required by. residents. Specifically, residents need dental clinics and
schools, both of which are adjacent to the Property. A child care facility, which is similar to a
school, would be the addition of another amenity for the local residents. Moreover, neighboring
residents cauld have children cared for across the street from their elementary school before and
after the school day. Thus, the Project would compliment the existing uses.
(3) Of comnarable intensitv to nermitted C1 district land uses with resroect to activity levels.
A childcare facility will produce the most activity during the early morning and late afternoon to
early evening because these are the periods when pazents will be dropping off and picking up
their children. Even during these peak activity times, the intensity will be comparable to the
other off`ice/service uses provided for under the C1 classification. This is because the other C1
office uses will produce similar activity dirring the same periods, due to emptoyees arriving at
and departing from their places of business. Moreover, the Project will likely produce less
activity than other office/service uses in light of the fact that Arena provides a bus that picks up
Mr. Ron W arren
August 2, 2007
Page 3
and drops aff approximately ?4% of its students. This is in contrast to other office/service uses
where nearly all users of the property (i.e., employees) a�rive by their own cars.
(4) Planned and desiffied to assure that eenerated traffic will be within the canacity of
available nublic facilities and will not have an adverse imuact uuon those facilities, the
immediate neiehborhood, or the communitv.
The Property is located adjacent to Brooklyn Boulevard, a major thoroughfare in Brooklyn
Center. This street is well traveled and designed to handle a large volume of traffic. The
Property was previously used as a dentist's office and, as the Project will generate comparable
traffic levels, the proposed use will not impact the traffic patterns. Furthermore, the existence of
a school directly east of the Property indicates that this area was designed to absorb a relatively
large volume of traffic during the times the Project will produce traffic. Therefore, there will be
no adverse traffic impact from the Project.
(5) Traffic generated bv other uses on the site will not nose a dan�er to children served bv
the dav care use.
The Property will only be used as a child care facility, so this is not a concern. However, any
dangers posed by traffic from the surrounding sites will not pose a threat because the children
will only be outside in ttie rear of the building within an enclosed area.
B. Standards for special use permits.
Under City Code Section 35-220, a special use permit may be granted upon demonstration by
evidence that all of the following are met:
(1) The esta.blishment. maintenance or ooeration of the snecial use will nromote and enhance
the �eneral nublic welfare and will not be detrimental to or endaneer the nublic health,
safetv. morals or comfort.
As discussed above, Arena's enrollment has grown at a high yearly rate since its inception. This
is a dixect result of the lack of child care services available in the City of Brooklyn Center. The
Project will permit Arena to expand its capacity in order to provide child care services to the
families in Brooklyn Center who have been placed on its waiting list and prevent other families
from being forced to wait for child care in the future. Therefore, the Project will fiu�thher the
public welfare by providing a service needed by local families.
(2) 'The sDecial use will not be iniurious to the use and eniovment of other nronertv in the
immediate vicinitv for the nurooses alreadv nermitted, nor substantiallv diminish and
im�air vrovertv values within the neishborhood.
The Project will not pr�duce any noxious or offensive odors or noise and will not produce late
night activity or draw individuals who are likely to int�rfere with neighboring property. Thus,
the Project is distinguishable from such uses as bazs that bring patrons who are much more likely
Mr. Ron Warren
August 2, 2007
Page 4
to produce disturbances at inconvenient hours. Rather, parents dropping off and picking up
children will in no way interfere with or injure nearby property.
I
(3) The establishment of the snecial use will not imnede the normal and orderlv develonment
and imnrovement of surrounding nronertv for uses nermitted in the district.
The surrounding property is fully developed with uses that are not likely to change in the neaz
future. Accordingl}�, this is not a major concern. The Property has remained vacant and for sale
for nearly one year. Therefore, the Property was not in use and the Project itself is the normal
and orderly development of the neighborhood. Further, the Project will not prevent additional
development in the future, as there is no office/service use that could not operate in the vicinity
of a child care facility.
(4) Adequate measures have been or will be taken to nrovide in�ess. eeress and narkin� so
desi¢ned as to minimize traffic coneestion in the nublic streets.
The Property contains 43 parking spaces to support a building of approximately 8,600 usable
gross square feet. This number of parking spaces is the amount required under City Code
Section 35-704(2)(h) and the Property has previously operated with this amount of parking
without issue. Also, the majority of the activity will be parents dropping off and picking up
children, which means the entire parking capacity will rarely be needed. Thus, there is ample
parking and no on-street parking will be necessary. Furthetmare, the ingress and egress has
already been established and is sufficient to permit traffic to flow to and from the adjacent street.
(5) The snecial use shall. in all other resnects. conform to the annlicable reeulations of the
district in which it is located.
As discussed above, the Project conforms to the applicable requirements for a special use in the
C1 zoning district.
S�u portin� Items. In addition to the $200 special use permit application fee, enclosed please
find the fallowing in support of the Applications:
Tab 1. Completed application form
Tab 2. ALTA Survey prepared by BDM Consulting Engineers and Surveyors
Tab 3. Accurately scaled and dimensioned site plan
Tab 4. Landscape plan
Tab 5. Building floor plan
Tab b. External plan
We look forward to discussing the Pro�ect and the Appli�:ations with the City Council, the
Planning Commission, and planning staff. Please contac# xne with any questions.
i
Mr. R��n Warrern
August 2, 200 i
Page 5
Very tnily yours,
LEONARD REET AND DEINARD
Professi al sociatia
I
Adam D. Maier
I
I
KKL' ArdUt�cts, InC.
300 flrst avenue north
�Mnr�eapolls, mn 55401
612/339-4200
617�342-9267 Pax
n www.kke.com
May 21, 2007
architects
Ronald A. Warren, Pfanntng and Zontng Speaafist
City of BrooMyn Center
6301 Shingte Creek Parkway
&ookiyn Center, MN 55430
Subject: 641s Brookiyn BouJevard, Brooktyn Center
Review of Existing Landscaping for Landscaping Poinf System
KKE 0706.1338.01
Dear Mr. Wanen:
9. The site is 1.29 acres. The propose� use is a day�care facility. The previoua use was an
o#fice. Based on the requirement for office development, 129 landscape points are
required.
2. Landscaping was reviewed on April 27, 2007, with the foliawing observatfons. 7he
current landscaping appears to be original to the 1980 construction.
Planting Type Total Polnts Q���� pofnWttem Total Points Max Pairits
a�owed Al�owed
Shade Tree 64 14 10/140 (50°r6) 84
Coniferous 42 7 8/42 (40%) 52
Decorative Trees 18 11 1.5118 (359�6) 45
Shrubs 23 47 3 25°�6 32
.5/2
TOTAL 74b
The open site areas outside tF�e parkirig lot and sidewalks are covered with grass. Based on the
cabulation above; the currenf site meets the landscape requirements.
Sincerely,
KKE ARCHITECTS, 1NC.
���Q�
Lee Meyer, AlA
Prindpal
1w
Copy To: Mtonio Smith, ARENA
k:. v�yc�. ;rMir.e cu�+�G�e�:c� a: r,.:r+c. tt�r' �i�a �r•
KKL Archit�ets, ]na
300 �rst avenue north
minn�polts, mn 55401
612/339-42�
612J342-9267fax
,r www.kke.�m
May 21 2007
architects
Ronald A. Warren, Planning and ZoMng Specialist
City of Brooklyn CeMer
6301 Sh�gle Geek Parkway
&ooldyn Center, MN 55430
Subject: 6415 Brooklym Boulevard, 8rooktyn Center
Review of Existing Landscaping for Landscaping PoinE System
KKE 0706.1338.01
Dear Mr. Warren:
1. 7he site is 1.29 acres. The pro�osed use is a daycare facility. The previcus use was an
affice. Based on tl�e requiremerrt for offlce development, 129 landscape points are
required.
2. Landscaping was reviewed on Ap� 27, 2007, with the foElowing observaHons. The
current Iar�dscapJng appears to be originat to the 1 S80 constructian.
Pianting Type Total Points
Allowed q��oW� Quantity Pointslitem Total Points Max Poir�ts
Shade Tree 64 14 10h48 (50°�) 64
Coniferous 42 7 6/42 (4096) 52
DecoratNeTrees 19 11 1.5N8 (35°�) 45
3hrubs 23 47 .5/23 (25°k� 32
TOTAL 148
The open site areas outside the parking lot and sidewalks are covered with grass. Based on the
calculation above, the cutrent alte meets the l�dscape requirements.
Sir�cerely,
KKE ARCHITECTS, 1NC.
��Q�
Lee Meyer, AIA
Principal
Copy To: Antonio Smith, AREAIA
�r:�re�pnli: �w ��cs �rvir.e c�°:�r.0 e:<M�:nc7ir:c rte .i:i:r.
I
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HINSHAW
C U L B E R T 5 O N L L P
A7TORNEYS AT LAW
AUg11St 23� ZOO7 333 South Seventh Street
Suite 2000
Minneapolis, MN 55402-2431
vIA HAND DELIVERY
AND UPS OVERNIGHT 6�2-sss-sasa
612-334-8888 (fax)
www.hinshawlaw.com
Mr. Ron Warren Charles L. Lefevere, Esq.
Planning Zoning Specialist Kennedy Graven Chartered
City of Brooklyn Center 200 S. Sixth Street
b301 Shingle Creek Parkway Suite #470
Brooklyn Center, Minnesota 55430-2199 Minneapolis, Minnesota 55402-1458
Re: Application for PUD amendment 7/19/07, submitted by Dan Cetina of Brooks
Mall Properties, LLC, in Coral Gables, Florida; application for Subdivision
approval submitted 7:19:07 by Hansen Thorp Pellinen Olson, Inc. on behalf of
Brooks Mall Properties, LLC (c% Talisman Companies) in Coral Gables, Florida
(collectively, the "Applications'� File No. 64444-879479
Gentlemen:
As you know, our office represents Sears, Roebuck Co. ("Sears") with respect to its
interests in the Applications. As you also know, Sears, which owns fee simple title to a large
portion of Brookdale Center, has been doing business there since 1962 and is one of the City's
largest taxpayers and employers. By this letter, Sears renews its fundamental legal objections to
the Applications and the approvals requested thereunder with respect to the proposed amendment
to the PUD and a preliminary plat. Sears requests that the Applications either be denied or be
remanded by the City Council to the Planning Commission in order to allow a full public hearing
for which Sears can properly prepare its factual presentation. The City has ample time under
Minnesota law to permit a full public hearing and still timely complete its review of the
Applications.
This letter will provide further detail on the objections of Sears to the substance of the
Applications and the process used by the City of Brooklyn Center in reviewing them. It
supplements our letter of August 13, a copy of which is enclosed herewith and which, by this
reference thereto, is incorporated herein, and our subsequent discussions with Mr. Lefevere.
I attended the Brooklyn Center Planning Commission meeting on August 17 to interpose
the objections of Sears to the Applications and request more time onbehalf of Sears to develop
the facts of the Applications from the perspective of their impact on Sears and on the City. That
request was denied, after the City zoning officer, Mr. Warren, told the Planning Commission that
it had no practical authority to grant an extension. Additionally, Mr. Warren read an e-mail
121192598vi 879479
Arizona California Florida Illinois Indiana Massachusetts Minnesota Missouri New York Oregon Rhode Island Wisconsin
August 23, 2007
Mr. Ron Warren
Charles L. Lefevere, Esq.
Page 2
communication from Mr. Lefevere to the Planning Commission, a copy of which is enclosed
herewith, telling it that it should not attempt to address any legal objections that had been raised
on behalf of Sears. In that posture, the City staffs recornmendation was accepted on a 3-1 vote
of the Planning Commission. The City staff then announced that the matter would be heard by
the City Council at its meeting on August 27.
On August 14, I contacted Curt Boganey, Brooklyn Center's City Manager, to arrange a
meeting with Sears representatives. Despite my several requests thereafter for such a meeting,
you have advised us that such a meeting cannot occur until after the scheduled City Council
meeting on August 27.
Since the Applicant has refused to submit the same to the City and since they comprise
certain of the rights of Seaxs in and to the property which is the subject of the Applications, I am
transmitting with this letter the set of Agreements between Sears, the Applicant and the
Applicant's predecessors in interest that go back to 1960 and which are referred to, inter-alia, in
the 1999 Agreement I sent you previously under separate cover (collectively the "Agreements").
The Agreements, together with the Declaration referenced in my August 13 letter, another copy
of which is enclosed herewith, demonstrate, unequivocally, that Seaxs has rights in the property
which is the subject of the Applications. These rights include, but axe not limited to:
the right to approve any change to the Site Plan
the right to approve any amendment to the PUD
the right to approve any amendment to the Declaration
the right to have access over the common areas of Brookdale Center
the right to park on all parking areas of Brookdale Center
the right to maintain utility lines over, through and under the property comprising
Brookdale Center
Even a cursory review by you of the enclosed Agreements and Declaration, as well as the
materials submitted by the Applicant with the Applications, will clearly demonstrate that
approval by the City of the Applications will adversely affect Sears' property rights. As a result,
dinances the Ci ma not a rove the
includin the Ci s own Or h' Y PP
un er a licable law
d
PP
g h'
Applications.
By way of example only, one effect of actions under the Applications is to remove
approximately 500 parking spaces and otherwise dramatically alter the common areas of
Brookdale Center over which Sears has easements and other property rights, and eliminate one
of the two signalized accesses to Brookdale Center to which Sears has the right of access under
the Agreements and Declaration. If approved by the City, the Applications would destroy
property rights held by Seaxs.
12I192598v1 879479
August 23, 2007
y Mr. Ron Warren
Charles L. Lefevere, Esq.
Page 3
As a further example, the Applications seek to reduce Sears' right to enjoy the property
rights it now has in the parking spaces that it owns in fee simple absolute and make them
available to the Applicant for its commercial purposes. Our preliminary calculations for the
parking ratios within Brookdale Center, based on the limited information which the City has
shared with us, show these important facts: the Sears parcel, standing alone, ha.s an approximate
parking ratio of 7-1,000; the proposed Wal-Mart parcel will have an approximate parking ratio of
5-1,000; the combined Talisman, Wal-Mart and other parcels in Brookdale Center, without the
Sears parcel, have an approximate parking ratio of 4.1-1,000; and the Talisman and other parcels
in Brookdale Center, excluding the proposed Wal-Mart parcel and the Sears parcel, will have a
combined parking ratio of approximately 3.9-1,000. In order to comply with the Ordinance and
Declaration, the Applicant has asked the City to use the excess parking stalls on the Sears parcel.
If the City approves the Applications, the City will take these stalls from Sears. The City has no
power to take Sears' property rights without its consent.
Our August 13 letter cited City Ordinance Section 35-355, Subdivision 4(d) and pointed
out that the Applicant could not warrant for the Applications that it has the control required by
the Ordinance, because of Sears' right to consent to changes in the Site Plan as shown in the
1999 Agreement. While the City has not responded to our August 13 letter and, despite our
August 13 letter, the Planning Commission recommended the Applications at its meeting on
August 17, Howard Roston, counsel to the Applicant, did respond with his letter to you dated
August 16, a copy of which is also enclosed herewith. You have asked us to provide a
preliminary response to Mr. Roston's letter.
First, Mr. Roston argues that Sears does not "have the right to control, dictate or approve
any particular use or user of the Wal-Mart site." This right, whether it belongs to Sears, has not
been asserted by Sears. Mr. Roston's argument ignores what Sears does have: the right to
approve material changes to the Site Plan attached to the 1999 Agreement. That right is set out in
plain language and is applicable to changes "materially affecting access or parking or which
would add any additional building or similar structure" to the Site Plan that was the basis of the
1999 Agreement, the 1999 PUD rezoning and the Declaration. The proposed amendments set
forth in the Applications would alter the underlying 1999 Site Plan in material ways.
Secondly, Mr. Roston argues that Sears' rights are limited to the axea he identifies from
the 1999 Agreement as the "Talisman Tract between the Sears and Mervyns Tracts or to the west
of the "Westerly Line" of the Talisman Tract. While that is a subset of Sears' particular
rights, it ignores the rights and easements which Sears has over all of the Common Areas in
Brookdale Center under the Agreements as well as the right to approve changes to the Site Plan
found in the 1999 Agreement and Declaration. The 1999 Agreement approval language
addresses at least two approval rights for: "any changes materially affecting access or parking ar
which would add any additional building or similar structure, or materially changing the location
of any building located within the exterior Common Areas of the Shopping Center on Talisman
Tract between the Sears and Mervyns Tracts or to the west of the "Westerly Line" of the
Talisman Tract as indicated on the attached Site Plan,...." (Emphasis Added.) Mr. Roston's
121192598v1 879479
Y August 23, 2007
Mr. Ron Warren
Charles L. Lefevere, Esq.
Page 4
interpretation would limit Sears' rights to only the second part of the disjunctive. But that is not
what the language provides.
Next, Mr. Roston cites the "original Operating Agreement," and argues that property not
owned by Sears may be "expanded, contracted or changed from time to time with respect to the
portion located on the pa.rt of Brookdale Center owned by anyone other than Sears." This
ignores the contractual obligation under the Agreements to assure that the Talisman lands do not
fall below a parking ratio of 4.5-1,000. This obligation is found in the Agreements beginning in
the third recital of the 1999 Agreement that states: "whenever the term "Brookdale land" is used,
it shall be deemed to refer to the "Talisman land", the portion of the Brookdale Center owned by
Talisman..." Section 2 of the November 21, 1960 Agreement reads in part: "The Common Area
may be expanded, contracted or changed from time to time in respect to the portion thereof
located on the Brookdale land, and by Sears with respect to the portion of the Common Area
located on Sears land, so long as the minimum parking ratios set forth in paragraph 4 of this
Agreement are maintained." (Emphasis Added.) Section 4 of the June 25, 1963 Agreement, as
modified by the 1999 Agreement, provides in part: "Brookdale agrees to provide and maintain or
cause to be provided and maintained on the Brookdale land, parking areas providing parking
ratios of at least 4.5 parking stall for automobiles of the same approximate size, length and
width as the average 1998 models of automobiles} per 1,000 square feet of rentable building area
on Brookdaleland.
Mr. Roston argues that the Ordinance does not require unified ownership, but fails to
candidly address the Ordinance requirement that the Applicant have sufficient leases or
easements to ensure compliance with the approved development plan and site plan. It is the
limitations in the Agreements and in the Declaration that are precisely the basis of Sears' rights
and the fatal flaw in the Applicant's claim to have control over Sears' property rights sufficient
to support the requirements of the City's Ordinance.
Finally, Mr. Roston's taking argument ignores what is demonstrated in this letter: the
Applications seek the City's necessary approval to alter Sears' property rights in a way that the
Agreements and Declaration prevent. As well, Mr. Roston's argument ignores the fact that, if
the Applications are approved, Sears parking spaces would be used to meet the City's required
4.5 to 1,000 parking ratio without Sears' consent.
I will be traveling the next few days. In my absence, please contact my partner, L.J.
Rotman (612-334-2675) who is available to answer any questions you may have and to discuss
this matter with you further. Please advise Mr. Rotman immediately when the agenda and
related materials for the City Council meeting are available and we will come to pick them up.
121192598v1 879479
August 23, 2007
Mr. Ron Warren
Charles L. Lefevere, Esq.
Page 5
Very truly yours,
HINSHAW CULBERTSON LLP
Thomas J. tt
612-334-2
tbarrett(a�hinshawlaw.com
Enclosures
August 13, 2007 Barrett Conespondence
August 15, 2007 Lefevere Email
August 16, 2007 Roston Correspondence
Declaration
Agreements
Amendment to Operating Agreement dated April 30, 1999
Operating Agreement dated November 21, 1960
First Supplement to Operating Agreement dated November 21, 1960
Agreement dated March 25, 1963 recorded as Docuxnent No. 750129
Brookdale Center Site Plan Sears Exhibit-prepared by Architectural Alliance Comm.
No. 9972 dated Apri126, 1999, marked approved 9/9/99
Purchase And Construction Agreement dated June 30, 1960 (referenced in Section 2 of
the 1999 Agreement) (Letters dated July 15, 1960, September 28, 1960 and memoranda
dated June 16, 1961, included at page 16)
First Supplement to Purchase and Construction agreement dated June 30, 1960
cc w/encl: (via UPS overnight)
Stacey Orleans, Esq.
Mr. Ari Meyer
cc w/o encl: Howard A. Roston, Esq.
cc w/o encl: (via email)
L.J. Rotman, Esq.
Thomas Kane, Esq.
121192598v1 879479
H I IVSHAW
C U L B E R T S O N L L P
A770RNEYS AT LAW
333 South Seventh Street
Suite 2000
Minneapolis, MN 55402-2431
August 13, 2007
612-333-3434
612-334-8888 (fax)
www.hinshawlaw.com
VIA E-MAIL. HAND-DELIVERY
AND UPS OVERNIGHT
FILE NO. 64444-879479
Mr. Ron Warren Charles L. Lefevere, Esq.
Planning Zoning Specialist Kennedy Graven Chartered
City ofBrooklyn Center 200 S. Sixth Street
6301 Shingle Creek Parkway Suite #470
Brooklyn Center, Minnesota 55430-2199 Minneapolis, Minnesota 55402-1458
Re: Application for PUD Amendment 7/19/07, submitted by Dan
Cetina of Brooks Mall Properties, LLC, in Coral Gables, Florida;
Application for Subdivision Approval submitted 7/19/07 by Hansen
Thorp Pellinen Olson, Inc., on behalf of Broolrs Mall Propertzes,
LLC (c% Talisman Companies) in Coral Gables, Florida
(collectively, the "Applications')
Gentlemen:
Our office represents Sears Roebuck Co. ("Sears) with respect to its interests in the
Applications. As you know, Sears, which owns fee simple title to approximately 23 acres in the
Brookdale Center, has been doing business there since 1962 and is one'of the City's largest
taxpayers. By this letter, Sears submits a fundamental lega.l objection to the Applications and the
approvals requested thereunder with respect to the proposed amendments to the PUD and a
preliminary plat, and requests a postponement of the hearing on the Applications currently
scheduled for August 16, 2007 for not less than 45 days in order to analyze better the
complicated facts required for approval of the Applications.
121191620v1879479
Arizona Califomia Fiorida Illinois Indiana Massachusetts Minnesota Missouri New York Oregon Rhode Island Wisconsin
Mr. Ron Warren
Charles L. Lefevere, Esq.
August 13, 2007
Page 2
By way of background, on March 8, 1999, the City rezoned the entire Brookdale Center
from G2 (Commerce) to PUD/C-2 by Resolution No. 99-37. The area of the PUD is described
in Section 35-1240 (4) of the Zoning Code as:
That area bounded by the following: County Road No 10 on the north; State
Highway 100 on the east and south; Xerxes Avenue on the west, except for Tract
A, Registered Land Survey No. 11 SI.
That description includes the property and buildings owned by Sears that are located entirely
within the PUD. Sears owns its buildings and real estate in the Brookdale Center in fee sirnple
absolute and has an Operating Agreement with the Applicant that sets out mutual duties and
obligations with respect to the common use of the Brookdale Center. The Operating Agreement
between Sears and Applicant provides in part:
"SeaYS shall have the right to approve the final Site Plan to the extent of any changes
materially affecting access or parking or which would add any additional building or similar
structure which approval will not be unreasonably withheld or delayed.
The implementation of the PUD was done by development plan pursuant to Section 35-
355 Subdivision 5(a) of the City ordinances. The development plan approved by the City was
set forth in a Declaration of Covenants and Restrictions dated December 9, 1999 and filed of
record of January 8, 2003 in the office of the Hennepin County Registrar of Titles as Document
No. 3659543 (the "Declaration"). The Declaration purports to affect the property comprising
Brookdale Center, including Sears' property. Paragraph 10 of the Declaration provides that the
Declaration "may be amended from time to time by a written amendment executed by the City
and the owner or owners of the lot or lots to be affected by said amendment."
The Applications directly affect Sears' interests. If approved, the actions set forth in the
Applications would remove between 400 and 500 parking spaces, and one of two signalized
entrances to the Brookdale Center, leaving Sears current store without the parking and access
that was provided by the 1999 PUD development plan which is the subject of the Declaration.
Pursuant to its Operating Agreement with Sears, Applicant was required to and did seek
Sears' consent to the actions set forth in the Applications, most recently on August 6. Sears
denied its consent for several reasons, including because it believes that the proposal as currently
structured is not in Sears' best interest with respect to parking and access and because it believes
that it is not in the long term interest of proper development of theBrookdale Center.
City Ordinance, Section 35-355, Subdivision 4(d), requires:
121191620v1 879479
Mr. Ron Warren
Charles L. Lefevere, Esq.
August 13, 2007
Page 3
d. All property to be included within a PUD shall be under unified ownership or
control or subject to such legal restrictions or covenants as may be necessary to
ensure compliance with the approved development plan and site plan. (emphasis
supplied.)
Pursuant to this portion of Brooklyn Center's zoning ordinance at the time of the 1999
PUD rezoning, Applicant warranted to the City in the Declaration that it had such control,
apparently relying on the Operating Agreement that it has with Sears. As a matter of fact and
law, Applicant cannot warrant for the Applications that it has such control because Sears has not
consented to the actions set forth in the Applications.
Thus, as a matter of the City Zoning Code, as a matter of private contractual agreement,
and as a matter of the promises made by Talisman in its Declaration of Covenants, the actions set
forth in the Applications proposing an Amendment to the PUD and a Preliminary Plat, fail to
meet the requirements of City Ordinances. Moreover, granting such a re-zoning would directly
impact Sears' property rights in the PUD and as found in its Operating Agreement with
Applicant, and such a classification would amount to a taking without compensation in violation
of the US and Minnesota Constitutions. See. Amcon Com v. Citv of Ea�an, 348 N.W. 2d 66,
72. (Minn. 1984), citing Rochester Association of Nei�hborhoods v. Citv of Rochester. 268
N.W. 2d 885, 888 Minn. 1978).
Additionally, our review of the Applications has yielded no analysis by the Applicant of
the impact of the sharp reductions in parking on the operations of the Brookdale Center if the
development occurs. This is required by the City's ordinances.
The Applications and the attachxnents thereto were first obtained by Sears on August 8,
2007 and will require significant review by Sears and its consultants in order to provide informed
comment. Sears will need to review the accuracy of the submissions with respect both to the
current description of Brookdale Center as well as the claimed impact of the proposed
development. The changes proposed have a very direct impact on Sears current operations, and
on the City, and it is only reasonable that Sears be allowed to consider them. In addition to the
fundamental objections to the actions set forth in the Applications, Sears requests that it be
granted more time to analyze and respond to the factual basis of the Applications.
Finally, we believe it is possible to provide, with some time, a longer look at and
appreciation of the opportunities that Brookdale Center, approximately one third of which is
owned by Sears has, for not only Sears, but the other businesses at Brookdale Center, and the
City as well. Sears is not convinced that the actions set forth in the Applications will support or
allow the best development of Brookdale Center and suggest that this is an opportunity for the
City to reflect carefully before it acts.
12ll 91620v 1 879479
Mr. Ron Warren
Charles L. Lefevere, Esq.
August 13, 2007
Page 4
A reasonable postponement will give Sears the opporiunity to make an informed
presentation to the Planning Commission on each of these issues and it respectfully requests that
the request for a postponement be granted. Sears would agree to meet the costs of publication of
any new notice required.
We look forward to hearing from you as soon as possible with respect to this request.
Very truly yours,
H BERTS N LLP
I'�►
omas J. Barr
612-334-2676
tbarrett@hinshawlaw. com
TJB:rep
cc: (via e-mai�:
Stacey Orleans, Esq.
Mr. Ari Meyer
L. J. Rotman, Esq.
Mr. Daniel Cetina
121191620v1 879479
Ron Warren
From: LeFevere, Charlie L. [clefevere@Kennedy-Graven.com]
Sent: Wednesday, August 15, 2007 9:20 PM
To: Ron Warren
Cc: Curt Boganey
Subject: Wa1-Mart application for plat and PUD approval
Ron,
At its August 16th meeting, the Brooklyn Center Planning Commission will consideran application on behalf of Brookdale
Center for preliminary plat and planned unit development approval for a Wal-Mart Supercenter.
The City has received a letter dated August 13, 2997 from Mr. Thomas Barrett, attorney for Sears. in the letter, Mr.
Barrett asserts that the application does not meet the requirements of the city's ordinances, or is otherwise unlawful, for
several reasons: Among the reasons cited are assertions that the project cannot proceed without approval by Sears as
required by an Operating Agreement between Sears and Brookdale, that the property is not under unified ownership or
control as required by the City Zoning Code, that the development would be a violation of the Declaration of Covenants
recorded against the property in 1999, and that a rezoning would constitute a taking of Sear's property without
compensation in violation of U. S. and Minnesota Constitutions.
On the other hand, legal counsel for Brookdale has asserted that the position taken by legal counsel for Sears has no
merit.
I would advise that the Planning commission is not required to attempt to resolve these legal issues and is free to let the
City Council decide (with the benefit of advice of legal counsel and after a more thorough review of the arguments being
made by the parties involved) whether any of these legal arguments have merit.
Charlie
1
i
MALK�RSON GILLILAND MARTIN LLP
1900 U.S. BANK PLAZA SOUTH� TOWER
�LZO SOUTH SI%TH STREET
MINNEAPOLIS, MINNESOTA SSQ�OZ
`rELEPHONE 612-344- 1 1 1 1
FAGSIMILE 612-344-1414
Howard A. Roston, Esq.
612.455.6655
harQmgmllp.com
August 16, 2007
VIA FACSIMILE (612.337.9310)
AND MAIL
Charles L. LeFevere, Esq.
Kennedy Graven
200 South Sixth Street, Suite 470
Minneapolis, MN 55402
RE: Application for PUD Amendment 7/19/Q7, submitted by Dan Cetina of Brooks
Mall Properties, LLC, in Cora1 Gables, Florida; Applicatian for Subdivision
Approval submitted 7/19/07 by Hansen Thorp Pellinen Olson, Inc., on behalf of
Brooks Ma11 Properties, �LC (c% Talisman Companies) in Coral Gables, Florida
(collectivety, the "Applicatians
Our File No. 1927.001
Dear Mr. LeFevere:
We represent Brooks Mall Properties, LLC and Talisman Companies ("Talisman") in
connection with the above referenced PUD Amendment. I write in response to Mr. Barrett's
letter dated August 13, 2007. Talisman requests that the Planning Commission recommend
approval of the PUD Amendznent and proposed subdivision submitted on July 19, 2007
("PUD"). Talisman also requests that the meeting not be continued. I w:ill address each of
Mr. Barrett's concerns:
Amendment To Operating Agreement
The entirety of the relevant language in the Amendment to Operating Agreement
provides:
[S]ears sha11 have the right to approve the fmal Site Plan to the extent of any
changes materially affecting access or parking or which would add any additional
buiiding or similar structure, or materially change the location of any building
located within the exterior Common Areas of the Shopping Center on Talisman
Tract between the Sears and Mervyns Tracts or to west of'the "Westerly Line" of
115290.DOC;2
Charles L. LeFevere, Esq.
August 16, 2007
Page 2
the Talisman Tract as indicated on the attached Site Plan, which approval will not
be unreasonably withheld or delayed.
The definitions in this provision are important for two reasons. First, Sears has no
control over the development of the Wal-Mart (former Mervyn's) site. Nowhere in the
Operating Agreement or in any other document does Sears hava the right to control, dictate or
approve any particulaz use or user of the 'Wal-Mart site. In point of fact, the Amendment to
Operating Agreement does not include the Wal-Mart site at a1L Rather, to the extent that Sears
has any rights at all, those rights are limited to the area identified as the "Talisman Tract between
the Sears and Mervyns Tracts or to the west of the "Westerly Line" .of the Talisman Tract
The Wal-Mart site is not part of the area over which Sears has any control. Additionally, the
original Operating Agreement (reinsta.ted in part by the Axnendment to Operating Agreement)
provides that the property not owned by Sears "may be expanded, contracted, or changed from
time to time with respect to the portion located on the part of Brookdale Center owned by anyone
other than Sears." Thus, Wal-Mart is consistent with the Operating Agreement. Finally, while
Sears is incorrect in its interpretation of the Operating Agreement, the City does not need to
resolve this issue as part of the PUD approval. Talisman respectfully suggests that the Planning
Commission's function should be to make a--recommendation as to whether the PUD
Amendment should be approved. In this respect, City Staff has recommended approval.
PUD Zoning Provisions.
The purpose of the PUD is to permit flexibility in the use and development of property.
City Ordinance, Section 35-355, Subd. 1.
City Ordinance, Section 35-355, Subdivision 4(d) simply requires that property to be
included in a PUD either be under unified ownership or controT OR subject to such legal
restrictions or covenants as may be necessary to ensure compliance with the approved
development plan and site plan. The ordinance does not require that all property in a geographic
area (such as the entire "Brookdale" area) be under unified ownership. This is obvious by the
fact that Sears is not part of the "unified" ownership and until very recently when Talisman
purchased the Mervyn's property, Mervyns was not part of a"unified" ownership. According to
the Planning Staff Recommendation, Brookdale Center in fact includes multiple ownerships
including Brooks Mall Properties, LLC, Seazs, Macys, Midas and Boulevard Bar and Grill.
Consistent with the PUD requirements, the properties aze subject to an Operating
Agreement (as amended). As to the property controlled by Talisman, it h.as the ability to provide
(and will provide if requested) additional reasona.ble Declazations as part of the planned
Wa!-Mart development. Sears does not have veto rights over a proposed PUD amendment
because it happens to be the fee owner of another property in Brookdale C.enter.
115290.DOC;2
Charles L. LeFevere Es
q
August 16, 2007
Page 3
The PUD Approval Is Not A Taking.
None of the cases relied upon by Sears are relevant to the disposition of this issue. Wlule
there are limits on municipal conlrol of property, "[e�xcept in those raze cases in which the city's
decision has no rational basis, `it is the duty of the judiciary to exercise restraint and accord
appropriate deference to civil authorities in the per#'ormance of their duties. Swanson v. City o, f
Bloomington; 421 N.W.2d 307, 311 (Minri. 1988) (quoting Honn; 313 N.W.2d at 417). See, e.g.,
Amcon Corp. v. Ciry of Eagan, Mendota Golf, 708 N.W.2d at 180; see also State ex rel.
Howard v. Village of Roseville, 244 Minn. 343, 347, 70 N.W.2d 404, 407 (1955) ("Even where
the reasonableness of a zoning ordinance is debata.ble, it is not the function of the courts to
interfere with the .legislative discretion on such issues."). Only the complete or virtually
cornplete destruction of the value of the Sears Property would be a"per se" taking. Lucas v.
South Carolina Coastal Commission, 505 U.S. 1003 (1991}. Clearly, that is not the case here.
Nor would .5eazs even remotely meet the "Penn Central" factors to esta.blish a taking. Penn
Central Transp. Ca v. New York Ciry, 438 U,S. 104 (1978).
Sears Consent.
While Sears has no control at alI over the Mervyn's parcel, even if it did have the right to
withhold consent, as set forth above, it cannot do so unreasonably under the various agreemenis.
The fact that Talisman seeks to conslxuct a retail use on the location of a pre-existing retai! use
demonstrates that at best Sears is unreasonably withholding consent. Sears parking and access
will not be impacted by the requested PUD Amendment. Indeed, the parking ratios remain
above the minimum requixements of the City (4.5/1). Again�Planning Staff has concluded that
the Wa1-Mart is consistent with the Brookdale Center as it recommended approval.
While Talisman is willing to work with Seazs to the extent reasonable and practical, the
City should not permit Sears to unilaterally hold up an otherwise viable project. The Mervyn's
site remains vacant. Constructing a Wal-Mart on the site is not only a good fit for the
"Brookdale" area, it is good for the citizens of the City of Brooklyn Center.
Si erel
st n
r d ey Gunn
HAR/ts
115290.DOC;2
AMENDMEN'1' 'I'O OPERA"fING AGRT'EMFNT
This Amcndmcnt to Operating Agrccment is madc and entered into as of April 30,
1999, by and bctwccn SEARS, ROEBUCK AND CO., a Ncw York corporation having an
ofCce at 3333 Beverly Koad, Hoffrnan Estates, [llinois 60179 ("Sears") and TALISMAN
BROOKnALE, I.LC, a Delaware limited liability company having an ofGce at I500 San
Remo Avenue, Suite 135, Coral Gables, Florida 33146 ("Talisman") successor ir► interests to
Broakdate Center, Inc., a Minnesota corporation ("Brookdate").
WITN�SSET}I
WHEREAS, Br�kdalc and Scars cntered into an initial Operating Agreement dated
November 21, 19b0 (the °Initial Operating Agrecmcnt"); as supplemented by a First
Supplcmcni to Operating Agrccmcnt datcd N�vemtxr 21, 1960 (°First Supplement"); and as
further amended by an Agreement ("Second Agreement") dated lune 25, 1963 (collectivety,
the "Operating Agreement") affecting the premises located in the City of Brooklyn Center,
Counry of Nennepin, State of Minnesota, and more fully described in the aforesaid Second
Agreement dated June 25, 1963 (copies of all of which are attached hereto as Exhibit A and
made a part hereo�:
W H EREAS, Brookdale, the Dayton Company and Scars entered into a Purchase and
Construction Agrccmcnt dated June 30, 1960, and supptemented by First Supplement dated
]une 30, 1960 and Second Supplement dated May 22, 19b3 (collectivcly the "Purchase and
Construction Agrccmcnt").
I:\DATA\N.DOCS\132�6 00.003\NES lUCMT\9901BG25 �04/30/99 �:19Dr
e
WHEREAS, for purposes of reference, the terms "Sears land", "Brookdale Center"
and "Common Area" as defined in the Operating Agreement shall have ihe samemcaning in
this Amcndment to Operating Agrament herein, providecl however whenever thc tctm
"Brookdale" is uscxi in the Operating Agrc�ement, it shall tu decmed in all respects to mcan
Talisman" as che successor to the ownership interest of Brookdale, whencver the term
"Brookciale land" is uscci it shall be deemcd tn refer to the "Talisman land", the portion of the
Brookdale Centcr ownc�d by Talisman, whenever the trrms "Talisman land" or "Searslanc3" or
"Mervyns land" arc useci in this Amendcnent to Operating Agreement such terms shall havc
the same meaning and description as the term "Talisman Tracc"� "Sears Tract" and Mervyns
Tract" as indicated on the "Site Plan" defined hercin, and any refcr�nce to thc tcrm "Shopping
Center° shalt be deemed to mcan the "$rookdalc Center".
WHEREAS� the Operating Agreement and Purchase and Con.Struction Agreement were
in effect untiI the cl�se of business vn May 16, 1997 (the °Termination Date')� at which time
thc Operating Agreement by its own terms, expiral, and the provisions of the Purchase and
Conswction Agreement exrircci with the exccption of the provisioas of Paragraph 14 thercof;
WHFRfiAS, notwithstanding the Termination Datc, Sears and Talisman cntered into an
Interim CAM Agreement datcd as of May 15� 1998 {the "Interim CAM Agrccment")
providing for the continued grant of reciprocal eascment and maintenance of the Common
Areas of the Brookdale Ctnter by Talisman, including thc "Sears land"� and paymcnt of
s�eci�cd sum by Sears to Talisman in Jieu its sharc of expenses for such maiatcnance from
said date through April 30, 2000. or the sooner effective date of a new or modified reciprocal
easement and operating agreement between the parties.
WHEREAS� Talisman and Sears intcnd hcrein to provide for the continuation of the
rights of rcciprocal easement for utilities acccss and parking over, and maintcnance of their
respcctive properties and the rcmainder of the Common Areas of thc Brookdale Centcr, and
7 aWATA\MPpOCS\172�i 00 00)\EES_JU:lfi\9lO1K25 0�/)0/99 {:39pm
2
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e
payment of a portion of the costs thereof throush an cxtension. reinstatement and amendment
of ihe Operating Agrcement as modificd hereby.
NOW THEREFORE� for and in �onsideration of thc faregoing and the mutua!
covenants. agreements, coaciitions contained herein and other gaod and valuable considc:ration,
the receipt anJ sufficiency of which arc heieby mutually acknowledgeci, Talisman and Sc�ar;s
hereby agree as follows:
1. The Operating Agrccment is herehy rcinstated. ratificd and confirmed
and shaU remain in full fatce: and effect, unmadified, except that:
{i) The refcrences to the thirty-f ve (35) year period term of
the Operating Agrerrnent containad in Section l.3, Scction 3.1,
and Section 8.1 of the Initial Operating Agrcc:ment and ia Scctian
8 of the Second Agrcement, shall hereafter shail be dc.�emed
modified so as to extend the term of the Operating Agreement
through and until December 31, 2009, when this Operating
Agrecment shall terntinate except to the extent as ttcrein
cxpressty �rvvided in Scction I.5(d). Any and all rights of thc
owners, employccs agents. customers and invitees of each
respectivc parcel of land to ingress. egress. access aad parking in
the Common Areas of their respecuve properties as providcd
thetein and modified are hereby reinstatcd and extended rluough
December 31 2009; and
(ii) Thc lnterim CAM Agreemcni is hcreby terminated. all of
thc tcrms and provisions thereof� anci thc obligations of thc
partics thereunder and of the Operating Agreemcnc as modified
hereby. through the date of execution of this Amen�lmcnt to
Operating Agreement, having becn dccmed paid and or satisfied;
:�DATA\N?pOCS\172�6_00.00]\ItES AClf!\9901{f2S 0�/SO/!t �illpw
3
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(iii) Thc provisions of Section 1.4 of the lnitiat Operating
Agrccment shall be deletccf. The fallowing tanguage shali be
subscitu[cc! for Section 1.4 thcreof:
Seclion 1.4 Talisman sha11 maintxin and operate
thc cntire Cornmon Area including the portion of
the Common Arcas located on the Sears tand, and
including thc exterior pazking areas and walkway
areas and including the interior mall area facilities
such as heating. lighiit�g, air conditioning, and
Talisman shall provide janitorial services and
m�intenance� repair and restore and pay for
utilities with respcct to the Common Area
(promptly reimbursing Sears for ait Qayments paid
directly by Sears to the supplicrs of such utilities
with respect to the Common Arr.� for such utilities
I furnishcc! while Talisman maintains and operdtes
the entire Common Area), and shall otherwisc
administer and supervisc thc entire Common Area.
Scars shati pay to Talismaa. as �ymcnt in fuil of
Sears share of maintaining and operating the
Common Areas, and ia lieu af any other charges
or payments for such services under the Operating
Agreement. an amount equal to $I68.000 per
annum in eQual monthly iastallments of $14,000
per month on or before the first day of each month
through Decembcr 31 2002 and thereaftcr during
any period or periods prior to December 31. 2009
within which Scars or any othcr persoa or entity,
operates a facility within the Brookdale Centcr on
the Sears land.
ln the event that at anytime after Deccmber 3 l,
2002, and prior to December 31, 2009, Sears shall
convey or kase all of the Sears tand and buiWing
to an unaffliatcd entity who does nat occupy
�i�
i�\Ly1711\NVDOCy\)32�i 00 .043\RCS_AC�lfT\99038675 0�/30l99.1i19pie
matcrially alt of the buiidings locaud on che Sears
land, the amount of such paymcnt shall be
reduccd. 1n such instanc;e, such payment shall be
equal ta $168�000 multiplied by a fraction, (i) of
the numcrator of which shall bc the area of
occupied square footage of floor arca within
buildings located on th� Scars land and (ii) the
denominator of which shalt be the aggrcgate
square footage of iloor area within buildings
located on the Scars iand; and
(iv) Thc provisions of Scctions 1.5, t.6 and 1.7 ot the
initial Operating Agreemeat shatl be deleted in their entirety, and
the following provisions shall be substituted as Section 1.5,
Scction 1.6 and Section 1.7 in place thereof:
SectiQn 1.5 (a) Each of Talisman and Sears for
thc benefit of the other owner grant� to the other
owner an easement in, to, over, under and across
the Common Arca of the granting owner's land for
the purpose of instalIation� operation,
maintenance, repair, storm sewer lines, saaitxry
sewer pi�s, �tic systems, water and gas mains,
ete�tric power lines, tcic�hone lines, aeui other
underground systems and utility lines ("Utility
Lincs") to serve thc facilities located on the Iand
owncd by such awncr. 1'he installation of any
Utility Lines not constructed on the date hereof
shall bc subje�t, as co location, to thc approva! of
the granting owner, which approval shall noc be
unreasonably withhetd ar delayed.
(b) The owners of any land or any tenant or
designee scrved by such Utility Lincs may operate,
maintain, rcpair and relocate such Utility I.ines.
provided such repair, main[enance and relocation
is performed cxpeditiousiy and only aftcr Gve
business days wriuen notice to the grantwg owner
utilizing or serviccd by said Utility Lincs or the
parking area to be affectcci by any construction
work. The party performing the maintenance or
repair shall� at its cost and expense. repair any
damage to any improvements. Each owner
performing such maintenance, repair ar restoration
shall indcmnify and hold thc granting owner and
It\DATA\MPD005117446..00.00]\RCS AOlfl�9901�675 0�/]0/99 �•19pC
any occupant of thc granting owncr's land
harmless from any claims, damages or loss which
may result from the activities in making such
maintcnancc, repairs or relocating its utiliry lines.
(c) T?ach owner shall service, maintain, repair
and replace, and pay the cost of any fees or
charges in cannection with the Utility Lines
iocated on its land to the extent that such Utility
Lines service, the improvements on its land solely.
1'o the extent that any Utility Line exclusively
scrvicing any land crosses another owner's land,
svch Utiliry Line shall be so maintained by the
party served by the Utiliry Line, subject to the
foregoing provisions. Maintenance of any portion
of any Utility Lines serving more than one parcel
of land shall be performed by the owner of the
land crossed by the Utitity Linc, but the cost
thcreof, and the cost of any fees or charges
rclating [hereto, shall be shared on an equitable
basis based upon the re[ative eonsumption or usage
of the utility furnishcd from such Utility Line.
(d) Notwithstanding the expiration of the tecm
of this Operating Agrccment as provided in
Section 1.3, Section 3.1 and Section l, as
modi�ed by paragraph 1(i) of this Amendment ro
Operating Agreement, the provisions of this
Section 1.5 shatl survive the expiration of the
Operating Agreement and continue and be deemed
to run with the land of thc respeciivc parccls to thc
benefit and burden of such parcei thereafter.
��tion 1.6 (a) Each of Sears and Talisman
shall indemnify and hold every other owner,
tenant, and occupant of the Brookdale Center
harmless (except for loss or damage resulting from
the negligent or tortious acts of such other parties)
from and against any damages, liability, actions,
claims, and cxpcnses (including attorneys, fees in
a reasonable amount) in conncction with loss of
iife, personal injury and/or damage toproperty
azising from or out of any occurrence in or upon
sach owner's land,or occasioned wholiy oc in part
by any act or omission of thc indemnifying owner,
its tenants, agents, contractors, employees, or
l�Y v
1:\DATA\MP[�CS\I7N6_00.00]\8ES_ACMT\990186Z5 0�/]0/99 1.19jxa
ticensccs.
Cach of Sears and Tali
(b? sman shall maintain or
cause to be mxincained public liability insurance
insuring agaiaSt claims on account of loss of life,
bodity injury or properiy damage that may arise
from, or bc nccasionod by the conditioa. use or
occupancy of its bnilding within the Brookdale
Ccnter by the tenants, agents. contractors,
employees, Iicensces, customers and invitees, of
such owaer or the occupant� of its land exccpt as
herein prnvided. Each of Sears and Talisman sbal!
causc such insurance to be carricd to cover the
Common Areas on its respective land exccpt, that
Talisman shall cause such insurance to be carried
for the Common Areas on ihe Sears land during
any period within the term of this Agreement
within which Talisman is responsible far
maintainin� the Common Arcas on the Sears land.
Said insurance s6a11 bc carried by a reputabie
insarance cvmpany or compaoics qnalified to do
bu
sincss in the State in which the Brookdale
Centcr is located and having limits for loss of life
or bodily injury in We amounts of not less than
$1,000,000 for each person and $2,000,000 for
cach occurrencc and $SOO,OOO for properry
damage for each occurrence. Sueh policies as they
'n
pertai to the Cocnmoa Areas shall name the
respective owner of the �joining l�nd as an
additional insured undcr said policy. Any sach
insurance may be carried under a"blanket" policy
or policies covering other properties of the party
and its subsid' ri
�a es, coatrolling or affiliated
co raqons. F.ach of Scars and Talisman shall
upon written rcquest from thc other owner. furnish
to the parry making such requcsc certificates of
insurance evidcncing the existence of the insurance
required to be caniai Pursuant to this Seciion.
Such insurance shall include provisions denying to
the insurer subrogation rights against the othcr
parties to the cxtent such rights have been waived
by the insurod prior to the occurrence of damagc
or loss. Each of Sean and Tatisman hereby
waives any rights of rccovery against any othcr
owner. its directors, officers, employees� agencs
anc! tcnants and occupants for any damage ar
::1�TA\MPDOCS\1]2�6_00.007\RCS_A6M7\9�Ol�f]S 0�/)0/9! �•19pn
consequentiai loss covered by said policics, against
which such owner is protcctcd by insurance, to the
extent of the proc:eeds payablc under such policies,
whether or not such damage or Ioss shall have
been caused by any aets or omissions of the.other
owner or its ciirectors, officers, employees, agents,
tenants or occupants.
(c) In the event any owner or othcr party shall be
delayed or hindered in or prevented from the
performance of any act required to be performed
by such party by reason of Accs of God, strikcs,
fockouts, unavailability of materials, failure ot
power, prohibitive governmental laws or
regulacions, riots, insurrections, the act or failure
to act of the other party, adverse weather
conditions preventing the performance of work as
certified to by an architect, war or other reason
bcyond such party's control ("force majeure")
performance of such act shalt be extended for a
period equivalent to thc period of such delay.
I,ack of adequate funds or financial inability to
perform shall not be decmccf to be a causc beyond
the control of such a
P nY
Section 1 J Neithcr Talisman nor Sears shalf
use, or permit the use of "hazardous materials" on,
about, under or in its land, or thc Shopping
Center, except in the ordinary course of its usual
business operations conducted thercon, and any
such usc sha11 at all times be in compliance with
all applicable environmental laws. Talisman and
Seazs shall each indemnify, protect, defend and
hold harmless the other from and against all
claims, suits, actions, demands, costs, damages
and losses of any kind, including but not fimited to
costs of investigation, litigation and remedial
respanse, arising out of any "hazardous material"
used or permitted to bc used by such indemnifying
party, whether or not in the ordinary course of
business. For the gurposc hcreof (i) "hazardous
materials" shall mean: petrolcum products,
asbestos, potchlorinated biphcnyls, radioactive
materials and alI other dangerous, toxic or
hazardous pollutants, contaminants, chemicals,
material or substdnc:es listed or idcntified in, or
�X
JV
[:\DATA\FIPDOCSU 12�6 00.00)\RES A(..'4T\99018675 O�/30/99 t::9ym
regalated by, an cnvironmental law, and (ii)
"environmental laws" shall mcan: all federal state�
caunty. municipal� local and other statutes, laws.
ordinances and regulations which relate to or deal
with human health or the environment, all as may
be amenciec! from time to time.
(v) The provisions of Articic VI af thc Operating
Agreement are amended so as to add to the Article thereof, the following
language;
cti n 6.2: "No�withscanding the provisions of
Section 6.1, Sears subject to conditions
constituting force majeurc� shap continue to
maintain and operate a Sears department store,
open during subswntially the same hours and
operated in a subsiantially similar manner to other
Sears departmeat stores in the Minneapolis/St.
Paul market area� during the three year perioci
running from January 1, 2000 thrnugh December
31,2002.
(vi) The provisions of Section 7.1 of the Initial
O�crating Agreement are hcreby modified so as to substitute thc
n�tice address of in thc case of Sears, at Sears, Rocbuck and Ca
3333 Bcverly Road. Hoffman Estates. Illinois 60179 Attention:
Vice President Real Fstatc, with a copy to Assistant General
Counsel Real Estate. and in the case of Talisman at 1500 San
Remo Ave., Suite 135 Coral Gablrs Florida 33146 with a copy to
Robert W. Claeson. Fischbein Badillo Wagner Harding 909
Third Avenue, New York, New York 10022 for that of
Brookdalc.
(vii) Thc First Supplement to Opera[ing
Agreement is hercby terminated.
(viii) The provisions of Section 1.1 of the Initial
Operating Agreemcnt and of paragraph numbered 2 of the Second
Agrcemrnc is hereby amended so as to confirm that Sears and
Talisman have approved the redevclopment plans and the
[+\Di1TA�tiPp0�5�112�G_00.00»Ri:B Af�17\9901li75 O�/70/9! �el9pm
Brookdale Ceater� Site Plan. Sears Exhibit �(the "Site Plan"j.
�aced April� 1999 attached hereto and made a part of hereof. t�
a�'� Sears shall have the right to apprnve the finai Site Plan to the
extent of any changcs materially affccting access ot parking or
which would add any additional building or similar structure, or
materially changc the location af any building located within thc
exterior Common Areas of the Shopping Center on Talismaa
Tract between thc Sears and Mervyns Tracts or to west of the
"Westerly I.ine" of the Talisman Tract as indicated on the
attached Site Plan� which approva! will nat be unreasonabIy
withheld or delayed. Such final site plan witl be attachecl to this
Agrccment and shall thercaftcr be substituted for, and bc
referencxd to as the Site Plan.
(ix) The provisions nf paragraph numbered 4 of
the Sccond Agreement is hercby modified to change al1
references ro a parking ratio of "6�i4 pazking stalls" to bc "4�h
parking stalls" and the referencc ta "1959 American automobilcs"
to be "1998 antomobiles".
In all other respc.�cts the Operating Agreement shall be reinstatc�d, remain unmodified
and in full force and effect from the date hereof until the tenth (10th) anniversary of lanuary 1.
200Q (the "Effective Date"). 1'alismaa represents and warrants to Seazs that Talisman has the
right to grant and extend the easements provided under the Operating Agreement as modified
hereby to the extent it affects the Talisman land� which includes the Common Area on the
parcel occupicd by the Daytons' store, and will use reasonable efforts to obtain necessary
approvals for the grant and extension of the easements provided under the Operating
Agrecment, to the cxtent necessary, over any other Common Area within the Brookdale
Centcr.
Each party to this Amcndment to O�crating Agrecment shall have thc right to wishdraw
and/or to deny the easements and other rights granted under this Agreement over its land to
any othcr tract of land within Brookdale Centcr� such as Mcrvyn Tract, during any period that
the owner of such land or Vact docs not reciprocally permit the use of the easements granted
P�
lilDJ1TJ1\ttP[�OCS�I]I�C 00.007\R84 J�d'tT\9901�675 9a/)0/99 ♦�19p�
undcr this Operating Agreeraent as amended hereby ovcr the land owncxi or occupiod by such
Owner. Talisman rcpresents to Sears that Talisman eurrently has casement rights for access
and parking for its employees. agents. customers and invitees over thc portion of the Common
Arcas af the Broakdale Center located on the Mervyns Tract indicated on the Site Plan (the
"Mervyns Trac.K") and the Common Arras adjacent to thr Pennys store building indicated �n
the Site Plan (thc "Pcnnys Tract") which is owned by Talisman.
2. Thc terms and provisions of the Purchasc and Constructian Agreement shall be
deemed to have ex�ired as of May 16, 1997. exccpt to the extent oF paragraph 14 thercof
which shall survive through May 16, 2012 but only to the extent modificd to be as follows:
"Sears grants to Talisman, for a period of 30 days
from t6e date of delivery of written noticc thereof
by Sears to Talisman. the right of first refusal W
purchase Tract A and the improvements and
facilities thereon on thc same terms before selling
said Tract A to anyonc other than a Sears af6liate,
or other than the trustees of a profit sharing plan
or pension fund or similat fund of which
c.Knplayees or former cmployees of Sears arul their
families are the principal bencficiarirs (hereinaftcr
called "Sears trustecs"), or other than one who
immediately thereaftcr leases said 7'rect A the
improvcmcnts and facilities tl�reoa back to Sc�rs
under a lease which provides that Scars shall
operate a department store and automotive service
station on said Tract A; provided however in the
event of aay such sale and lcase-back the decd vr
the instrument conveying titIe to Traci A fram
Scars to such party shall pravide that after
termination of the lease of said Tract A to Sears,
Talisman shall have thr right of first rcfusal to
purchase said Tract A and [he improvements attd
facilitics thcreon on the same terms before the then
owner of said 'Tract A sells the same to anyone
other than Sears, a Scars affiliate or Sears trustees
until, but not aftcr May 16, 2012.
Sears covenants and agrecs that it will, during the term of this Agreement and until but
not afier May 16, 2012, restrict and prohibit the use of any grantcc or tenant or occupant a!'
Tract A from any usc other than retail sales or related uses compatible with. and commonly
t'
I:\Wt/1\ OO.00I\�S MiSl�f901�b7S 0�/)0/99 ♦i19pn
then found prescnt in regional mall shopping centers co long as the Talisman land is then
prim:uily utilizcd for shopping ccater purposcs.
3. Sears acknowteclges that Talisman contemplates performi�g a renovation anci
moclification to improvemcnts located on Talisman's land and buitdiags within the arcas
indicated on the Site Plan. Talisman covenants and agrces that no time during such
construction shall any construction equipment, matcrials or vehicles he Iocatcd or placcci upon
the Sears 1and. Tatisman shall alsa prohibic th� utilization of the curb cut,5 and roadways
located on the Sears laad by any conswetion vchicles and personnet, and shall use a!1
commercially reasonablc efforts to cnforce such prohibition� inctuding the inclusion of such
restriction in any of its consuuction contracts for work to be performed on Tatismxn's land.
Talismaa shalt indemnify and hold Sears harmless from any damages, liability. actions and
claims resulting from its construction activity of Talisman and its coatractors during such
construction, and shall maintain or cause to be maintained at a1t iimes during such period. a
customary commercial gcnerat liability policy idcntifying Sears as an additionai insured.
4. Talisman contemplates renovatiop and improvements to thc interior portian of
the mall area located on the Talisman land. including the conswction of certain retai! store
facilitics indicatcd on the Site Plan. 'Talisman covenants and agrees that for so long as Sears,
or any related or affiliated entity. operate,�s a depattment store within thC Sears building.
Talisman will prohibit the Ic�asing or occupancy of the store units shadeci and identifiad as
"Sears Restricted Store Area" on said Site Plan by Circuit City and/or Best Buy or similar
retailer whase principaI and rimar use is thc sale of a liances and electronic. audio and
P Y PP
visual equipment in manner and scc�pe similar to Best Buy and Circuit City. Further, no
building. kiosks, or other permanent improvement sha11 be located within tbe area indicated on
S 1�OMi'\9907�i25 0�/)0/!! �rlfpa
the Site Plan as "Sears Kiosk Restriction Area' ocher than in the Iocations indicatcd on [he
attached Site Plan without the conscnt of Sears.
S. Tatisman acknowledges that Scars currently uses or prrmits thc utilization of a
portion of its land for a Budget Rental car operation, including ihe use of tcn (10) car parking
spaces for rental car pickup and drop offs on the southwesteriy portion of the Sears tand.
Sears has acivised Talisman that it contemplates using or pctmitting the Bud�et nperations to
use up to fitteen (15) additional spaccs for the rental of small to mid-siced vans and rental
uucks. Talisman agrees that it shal! not object to such asr� and wi11 cnog�rate with Sears in
its application to the appropriate governmentat authorities for any neccssary approval of such
use. provided Talisman is not required to expe� funds or restrict the use of its land by reason
thereof.
6. Talisman contem�lates constructing and leasing a movic theater facility as part
of its renUVation and modification of thc improvements lvcated on the Talisman land in the
arca indicated oa thc Site Plan. Talisman acknnwledges that the traffic generated, and
particularty thc yuantity of �arkiag utilized by patrons attending the movie theater. may have
an adverse affect upon (i) the availability of parking for Sears customers entering the westerly
Sears store entrances and the Mall Entrance I shown on the Site Plan; and (ii) related Sears
sales during geak shopping in arour�d the en� oFyear holiday season. Ia consideration of
Sears entering into this Amendment to Operating Agreement. and as a condition thereaf.
Talisman covenants and agrees that for so long as Sears, or any related or affiliated cntity, or
any grantcc or assignee. operates a depanment storc within the Sears building, and a motion
picture or live production or other tbeater is locateci within the Brookdate Ccnter with a main
or primary cntrance located wiihin thc weseerly half of the Broakdale Center as beg�nning in
��l/
IaWA7A\MPDOCS\U2�i D0.003\it� AC.Ml�ly01�L75 0�/70/!9 ��19pe
i
the area indicatcd on "Westerty Half Line" on the Site P[an:
(i) 7'alisman will not permit such theater to bc
constructccf or operatcd with a main or primary cntrance in thc
westerly half of thc Brookdalc Center other than in the area
indicated on the Site Plan and no such theater shall exceed 70,000
syuare feet of gross Ieasable area or 3,400 seats.
(ii) The main, or any primary entrance to such theater
shall be configured in the manner indicated on the detailed
diagram attached to the Site Plan, and no reconswction or
alterati�n of such theater entrance way, or any entrance in any
modified or different theater facility constructed at a future date
in such area, shal! be altered from such configuration, nor shall
the angle of oricntation of thc cscalator indicated on the dctailed
diagram on the Site Pfan be changed or the location of said
escalator or the elevator indicated on the Site Plan be changed, to
other than a de minimis extcnt, without the prior written consent
of Scars or its operating subsidiary or affiliate, which approval
may bc withheld in Sears sole discretion.
(iii) At all times during "Crucial Scasonal Hours", (as
hereinaftcr defined), Talisman will, at its cost and expense, it
requested by Sears and as directed by Scars cause signs and other
identification to be installecl in the locations indicated on the Site
Plan which shall indicate that the parking area located on the
I:\DATA\tiPpqCS\17Z�4 00.001\RES AC:Ii:\99018425 0�/3Q/99 l:19�n
r
Sears land is intended to be rescrved for Sears shopping
customers and mast specifically, not for parties ina:nding_to then
attend the move theater, and s6a11 further, if requested by Sears,
post an individual attcndant at the cntrance to the Brc�okdale
Centcr�parking lot on the Scar� land from Xerxc� Avenue as
indicated on the Sitc Plan ("Parking Entrance I") to dircct
vehicles of theater patroas to thc areas away from the area
indicated as Sears reserved parking� or to the theatcr parking azca
located away from the Parking Entrance I parking areas. For
purposes hereof, "Crucial Seasonal Hours" shall be deemccf to be
between the hours of 5 p.m. and 10 p.m. on Friday nights, 5
p.m. and 10 p.m. on Saturday nights and 1 p.m. and 6 p.m. on
Sundays, all during the months of Navember and December of
any ycar during the term hcreof.
(iv) At all times during Crucial Seasonal Hours, if requcsted by
Sears, Talisman will, without cost and expense to Sears or the
owner or user of thc Sears Iand, Qrovide vatet parking for
customers of che Brookdale Center at the "Food Court" Malt
Entrance II indicatcd on the Site Ptan. Such valet parking
aucndants shall park the cars of thc customers using such
entrance in an area at least 750 fcxt from the westerly Scars store
entrances and Mall EntrancC 1, but in any instancz not on the
west sidc of thc Mall parking area.
it�G:A\MpDOCS\:]2�6 00.007\1!� AGMT\9f01�675 O�/)0/19 {�19pe
(v) Sears shaU have the right during any pericxl that access
and or parking is denied to movie patrons for parking on thc
Common Areas loc:ateci on the Mervyns Traet, to terminate for
such period the provisions of this Agreement bencfiting the
Talisman Tract located txtwecn thc Scar ct and v
s Tra the Mer ns
Y
ract �ndicate on ihe Site Plan. In the event of any such
termination by Sears, Talisman sha11 have the right to tcrminatc,
for such prriocl, the provisions of this Agreement beneCting the
Sears land relating to acccss and/or parking
(vi) In the cvent that Talisman docs not provide such si�nage
as required under subparagraph (iii) of this Section, or the traffic
attendan�s or valet parking personnel and services as required
under subparagraph (iv) of this Section during Crucial Seasonal
Hours, and if T'alisman does no[ cure snch failure within three (3)
days of receipt of wriuen notice of the failure thereof, Sears may
take over providing such service for the remainder of the Scason
and "i'alisman shall promptly rcimbursc Scars for its reasonable
costs incurred upon receipt of written demand and reasonable
documentation to Talisman and if Sears is not so reimbursed aftcr
ten (10) days of written notice to Talisman, and the holder of
Mortgagc holding a ficn u�on Talisman land (provided Sears has
been given written notice regarding the identity therco�, Sears
may deduci such bilted costs, together with interest thereon at the
�N v
S:\UA _AC1TT\990IBG75 0�/30/99 �:19pR
ratc af twelve percent per annum (129b) frnm its next accruing
payments to bc: made by Sears pursuant to Sc�tion 1.4 of the
Operating Agreement as mnciified hercby until paymenGt until
reimbursed thercfore.
iN WITNESS WHEREOF, the partics hereto havc cxecuted this Agreement as of the
d
ay and year first above written.
TALISMAN BROOKDALE, L.L.C.
By: CS Braokdale Realty Corp., a Managing Member
�y:
By: BZA Brookdale Realty Cocp., a Managing Member
b �r.'L...
SEARS, RO �3UCK A CO.
b y�
ae.
C�arla� S. �4 n
$Z.- �al Eatute Di7cactox /�L
1S
Is\O11TA�MY.bCS\S)7�f_00.001\RiS�ACMT\g901�625 Ol/30/!! ��39pw
i
4
EXHIBIT 1
SITE PLAN
I:\DA7A\w700CS\1)7{i 00.00]\Rk.'S_J1CMl\ff01�i2S Ot/70/f9 �:ilpa
j'
Rac-6/i6/6o�. EXHtBiT A
OPERATING AQREEINENT
AoRESr�I�tr ►:�ade tt,is a��day or ��rvz
i96s, by and between BAOpIO)ALE CENTER, INC., a Minneeota
corporation (hereinatter referred to ae "Brookdale"), Piret
party, and SEAR4 ROEBUCK AND CO., a Ne�r York corporatioa
(hereinafter rePerred to ae "$eers"), escarid party,
1dITNES3F'sTH;
W�R'�AS, the parbie�y he�eta and The DeYton Corepai'�Y,
a M1nne$ote corporation, heretofore entered into a Furchaae
aad Can�truction Agreement dated June 30, 1960, re2ating,
among other thinge, to the development of a shopping oenter.::•�..
to be knorm ae "Brookdale Center" arld the cor►veyance oP
certain land xithin the area ot aaid Brookdale Center by eaid
The D�ayton Com�any �0 3eare, upon conditivns therelt�
apecified, end
WHSREAS, paragraph 4(c) 02' aaZd Purchase and
Constractfon Agreement provides that contemporaneou$ly wiLh
the conveyance of eaid lsnd by said The Dayton Canpany to
Sears purauant to the termQ of eaid Purchaae and Conetruc�ion
Agreement, $eare and Brookc3sle ahaal enter into thie Operating
Agreement, and
W�REAS, euch conveyance oP said land (he�reinatter
referred Lo ae "8ears' land") by said The D�iyton Company to
Seara �s being ePPected contemporaneoualy herewith and
development oP Brookdale Center is being undextaken in the
manner contemplated by said Purcnase and Construction
Agreement,
NOW, TE�REFORF., in consideration of the covenants
and conditions herein contained on the pa.rt of each party
to be observed and performed, Braokdale and 5ears do hereby
agree as follows•
ARTICLE I
The Common Area
Section 1.1. The term "Common Area`� means the
entlre area deaignated for common use or benefit within
tize outer property limits of Brookdale Center as it exists
from time to time, including, but not by way of li.mitation,
all parking lots, landscaped and vacant areas, passageg for
trucks and automobiles, areaways, roads, walks, curbe,
corrldorg, and ma12 and court area$, together with public
Pacilities such as washroome, toilets, drinking Pountains,
public stairB, ramps, ahelters and bus stationa, wlth
facilities appurtenanC to each. The Common Area aha11 not
include truck loading doc ks, commerci.al areaa intended for
renting, ae the same ahall exiet from time to time, areas
within the buildinge located on Seare' land, or roads within
the outer property limita oP Brookdale Center while maintained
by public authority. The Common Area may bs expanded, con-
tracted, or changed from time ta time with respect to tE�e
-2-
portion thereof located on the part of Brookdale Center owned
by anyone other than Seara, its saccessors or assigna
(hereinafter eometimes referred to ae "Brookdale larid"), and
by Sears �3th respect to the portion of the Cominon Ar�a
located on Seara' l�nd, so long as the minimum parld.ng ratios
set forth in paragraph 10 of said Purchase and Canatruction
Agreement are taaintained.
Section 1.2. Brookdale shall have authority to
make such rules and regulationa with reepect to the opera�ion
of Brookdaie Center and the use of the Common Area as Seara
aha.11 agree to, provided that 8eara shall not withhold ita
agreement to suah of said rules and regulations proposed by
Brookdale aa are reasonable or as are oustomary in large'
shopping centere or a� have been e6tablished with respect to
the ehopping center known as "Southda3e CenCer" located in
Edina, Minneeota. Brookdale and Seara each agreee to abide
by $uch rules and regulation� as may be eo agreed upon in the
operation and conduct of ite property and business in
Brookdale Center, and Brovkdale shall require, by appropriate
stip�lation in ].te etandard lease with reBpeot to space in
Brookdale Center, that each of its lessees ehall abide by
such rulea and regulations in the operation and conduct of
such lesaeets premi�ee and b�sineea in Brookda],e Center.
Section 1.3. 3ub�ect to such rulea and regulations
witt� respect to the use of the Common Area as may be agreed
_g_
upon by Brookdale and Sears as hereinbePore provided and
aub�ect to the restrictiona on ernployee parking apeciPled
in Article IV hereof, Brookdale hereby granta to 3eare Por
the use oP the latter and the latter�s officers, employeea,
lessees, licensees, 2nviteea, concesaioriairee and customers
a aon-exclueive right to use Por bueinesa purpo�es all portione
af the Corranon Area, as it exiete !'rom time to time, located
on Broolodale land, and, Iikewiae �ub�ect to such ruleB and
regulations and �uch employee parking restriations, Sears
hereby grants to Brookdale for the use of the latter and the
latter�s oPPicers, employees, le��sees, 2�ceneeeB, inv3tee�,
concesaionaireg and custortsers, and Por the use o� the ofPicers,
employees, lieeneee�, invitees, conceasionai.re6 and cuetaners
of leaseee from Brookdale, a non-exoluaive right to use for
buainess purgose$ all portions af the Comman Area, as it
exists from time to time, located on SearB' land, provided
that to the extent deemed necessary to prevent the acquieition
by pregcription by the public oP rights in and to said Common
Area the partie� heret• may from time to time temporarlly
close the portions oP the Common Area locE�ted on their
respective lands, erect private boundary markera, and take
such further action Por that purroee as may be appropriate,
and no auch action ahall be deemed an eviction or a dieturbAnce
of the righta hereinbefore in thie Section 1.3 granted to use
for busineas purposes all portiona of the Common Area.
_k_
Brookdale and Seare promptly after the execution and delivery
Qf this Operating Agreement shall enter into an appropriate
agreement in writing in recordable form wher�by Brookdale
will confi.rm the right granted by it in this Section 1.3 to
use, for the period of 35 years Prom the date �rhen 9eara
Brookdale Center department atare hereinatter referred tc
f1r$t opene for bueinese, the portfons oP the Common Area,
ae it exl.ste from�time to time, ioaated on Brookdale land
and whereby Sears will confirm the right granted by it in
this 3ection 1.3 to uee, for such 35 year period, the portions
of the Cam[non Area, as it exieta from time to time, looated
on Sears' land.
3ection 1.4. The co$ts and expensee of mainta3nirig
the Cornmon Area or the central mall area oP the Common Area,
as the case mey be, shall inciude, but not by way of limita-
tion, all Qoste and expenaes oP operating, repairing, light-
ing, heating, water, airconditioning,cleaning,painting,insur-
ing, removing ice, enow and debris, policing and all coete
and expenses (other than those of a capital tzature) oP
replaeement of paving, curbs,, walks, landacaping and drainage
and lighting facilitiee of the Common Area or the central
mall area of the Common Area, as the case may be, but ahail
not include rea2 e$tate taxea, speaial asaessmenta or deprecia-
tion on building� or permanent improvements� with respect to
the Cammon Area or the central m$11 area of the Comman Area,
as the ca8e may be.
Sectioa 1.5. Until and except ae Seare gha12
otherwise eleat as hereinafter provided, Brookdale ahall
maintaln and operate the entire Common Area, including the
portion thereof located on Sea'ra' land and shall provide
�anitorial and meChanioal aervices, make repairs, msintain
and pay Por utilities �vith,reapect to the Common Area
(promptly reimbureing 3eara Por all payments paid direatiy by
S eare� to the �uppliers of auch utilitiee with r�epeet to �he
Common Are� for 8uah uti2lties furniehed while grook�dele
m8lnt�ine and opex�ates the entire Comrnon Area), ant! ah811
atherwise adminiater and auperviee the entire Common Area.
Zn such evant Seare shall bear euch proportion of the eost and
expenae ipcurrei by Brooladsle at any particular t3me in main-
tainitig the entire Common Ar�a as equais the proportion which
the building area on Sears' land beare at euch time tio the
aggregate of the rentable building area on Brookdale land,
the nonrentable builiing•area on Hrookdale land, and the
building area on 3ears' land.�
Aa ueed in this Operati� Agreement, the phraee
"building az*ea an 3eara' land" means the groas builc�ing area
of such bui.ldings on 3ears' land (other than the automotive
service station and garden ehopa located thereon) aa 8re at
the pa,rticular time completed and either open in whole or in
part for businees to the public or, if not to be open in whole
_6..
or in part for buainess to the public, ready for occupancy;
the phrase "rentable building area on Brookdale land" means
the gross building area oP auch portions of the buildings on
8rookdale land (other than automotive 8ervice stations and
garden shops loasted thereonj ae sre at the particular time
either le8sed under leaeea pursuant ta which reat is �hen
accruing, or completed and ofPered for rent but not yet rented;
and the phrase "nonrentable building area on Broolodale lsnt3"
meane the grose building area of $uch buildi�gs on Brookdale
land (other than automotive service etatione aad garden sho�a
located thereon) ag are not rented and not oPfered 3n whole or
in part for rent and as are at the particular time completed
and e3ther open in whole or ia part Por bus�.nesa to the
public or, if not to be open in whole ar in part Por bueinese
to the publia, ready Por occupancy. For the purpose of this
Opereting Agreement the conetruction oP an addition to a
completed building ehall not render said building incomplete
or unready Por oaeupanay during the period oP suah conetruc-
tion but the area of the addition to euch building ehall not
be included in the gross building area thereof for the pur-
poses of this Operating Agreement until such addition hae been
completed anci is either open in whole or in part Por businesa
to the public, or, if not to be open in whole or in part for
buaineas to the pubZic, ready for occupa.ncy. Ae uged �.n thla
Seetion 1.5, the phrase "groes building area" meana the entire
_7-
floor area ot the enclosed epace oP each level of the
particular buildir� excluaive of �loor area con8tituting part
ot the Ccmmon Area and exclusive of Ploor area of any pent-
houae on the roof housing heating, airconditioning or
ventilating equi.pment.
Seation l.fi. Notwithetanding the foregoing, 3ears
may at any time and t'rom t3me to time elect to operate and
maintain at ita owrs ezpense the port�on•o! the Common Area
lxated on Seara� land, commencing at a apeoified date at the
beginning aP a ealendar month (not lese tt�an 60 days aubBe-
quent to the da�e of delivery ot a written notice oP �uch
eleation by SearB to Broaladale), and in the event of any sueh
i
eleotion by 3eare, the latter, commeneit�g on such epecified
date, ahail $o operate and maintain the portion oP the CoQa�non
Area located on Seare' 1and, and shail alao bear �uch propor-
tion oP the cost and expenae incurred by Brookdale at any
particular time in maintaining the centrai mall area oP
Brookdale Center, including centrai mall Sacilities such aa
publie toilete, mashrooms and drinking fountaine and tbe
heating and airconditioni.ng of the central mall area,'ae
equals the proportian whieh the building area on Seara' laad
beara at auch �irae to the aggrega�e of the rentable building
area on Hrookdsle land, the nanrentable buiiding area on
Brookdale land, and the building area on Sears' land. In
such event:
-8-
{a) if the ratia o�' the daily average number
oP parking stalla on 3eers' land to the daily
average number of parking stalls in a11 of
Broakdale Center (including Seare' land), during
any period of time xhen the ratio oP the butiding
area on 3ear8� lar�d to the aggregete aP the rentable
building area on Brooladale land, the nonrentable
building area on Hrookdale ].and, and the building
area on Sears' land remaine the same, is less than.
the ratio of the building area on Sears' land ta the
�ggrega�e oY the rentable buildtng area on BrookQaZe
1ana; the nonrentable building area on Brookdale
land,. and the bui7.ding area on Sears� land during
such period of time, then Sears aha11 pay to Hrookdale,
in addition to its ehare of the cost and expenge of
maintaiaing tne central mall area oP Brookdale Center
during guch period of time, the actual coat (includir�g
the expense of lighting, parld.ng lot landscaping,
snow removal, and alI other parldng lot maintenanee
expenae) during euch peMod of �ime to Brookdale oP
maintaining that number oP parking �talls located
ln Brookdale Center outside of Sears� 2and which
when added to suah daily average number of parldng
etalls on $eare� land during such period of time
results in a eum bearing the same ratio to the daily
_g_
average number of parking stal2s in all of Brookda2e
Center (including Sear�' land) during auch period
oP time as the ratio which the building area on
Seara' land beare to the aggregate of the rentable
building area an Brookdale land, the no:�rentable
�building area on 8rookdale land, and the building
area on 9ears' lsnd durir�g gueh period of time, but
(b} if the ratio of the daily average ncunber
of parking etalle on Sears� land to the daily sve�age
number of parking stalla in a12 oP Hrookda3e Center
(including Sears' land), during any period of time
when the ratio of the building area on Sears' land
to the aggregate of the rentable buildit�g area oh
Srookdale land, the nonrentable building area on
8rookdale laad, and the building area on 3eare' land
remains the same, is more than the ratio of trie
building area on Seare' land to the aggregate of the
rentable building area an Hrookclale land, the
nonrentable building area on Brookdale land atid the
building area on Seare' land during such period of time,
then Sear� shall be eredited in calcula,ting its share
of the cost and expenee of maintaining the central
X.
mall area of Brookdale Center during such period of
time with the actual coat (inciuding the expense ot'
-zo-
lighting, parking lot landscrtping, snow remo��al, and
all othe: �arll.ng lot maintendnce expen$e) during
euch peMiod oP time to Sesrs oi' maintaining that number
aP parking stalls located oa Seare� land which when
eubtracted frc�m suoh daily average number of parking
stall� loc�ted on Seers' lan3 during 8uch p�riod ot
time results in a sum bearing the e�ame ratio to the
11
dai2y avez�ge number of parking stalls in ali of
Brookdale Cehter (ineluriir.g 3ears lan3) during such
II
period oP tlme ae the ratio •�rhich the builciing araa
on Seara' land beara to the aggregate of the rentable
buildirig area on Broo3c�ale land, the nonrentable build-
ing area oh Hrookdale land, aad the builditlg area an
gears' land during such period of time.
In order to permit the celculation oP the charges or credit�
to Seers on account of parking atall ratios as aforesatd and
in order to segregate the aoste a:�d expen$es 3r,curred by
Brookdale in malntaini:� the �er.trs�l mall area of Brookdale
Center, eo long as Sears operates and maintains at its own
expense the portion of the Common Area located on Seara�
land, the coats and exp:nses to Bxookc�ale of operating and
maintaining the parking stalls located in Brookdale Center
outeide oP Sears' land shail be kept eeparate from the
costa and ex�enaes to Brookda2e of operating and maintaining
the central mall area of Brookdale Center and the other
-�i-
portions oP the Common Area located outside of �Q�re� land,
the co8ts er.d e�!penses to Brookdale ef operating and main-
tainirig auch Cenzral mall area shall be k�pt aeparate from
the co��tR and expenaes to Brookdale of operating and maintain-
ing the othar pc^ti�ns o£ the Co�on Area located outside oP
Sears 1&nd, anG �he c�utb a���c �x,�r�Ee� to Sears oP operating
and maintaining the parldng stails lccated on Sears' land
shail be ke�t separate ±'rcm �he c��ta and expen�es to Seare
of operating ar.6 nu�ihtainin� �Y.e �':her portione Of the Common
Area oh 3ears' land. At any �ime, and from time to time,
af�er Sears shell have elected to operate and maintaia at its
os�m expense the portioas of the Car�man Area located on Sears'
land, it m�y e3eat to have 8rook�a+e o�er�te and matntain
the portions oP the Common Area ]��;;&ted on Sears land,
conQnencing at a specii'ied date at the beginning of a aalendar
month (not lese than 60 days eubsequent to the c3ate of
delivery oP written notice of auctl electian by S�ara to
Brookdale), and, in th� even� oP a:1y such election by Seare,
Brookdale ehall, aommencing on such speciPied date, under-
take the operation �nd mainten8nae pf the entire Cormnon Area
pursuan� to the provisions of 3ec*.ion 1.5 hereof.
3ection Z.7. Sears shall pay to 3rookdale, in
advance, on the t'�rst day of each calendar month during the
period cotranencing with the date when building area on Seara'
lat�d (as defined in Section 1.5 hereof) first exist$ �nd
I
-12-
ending when a new tentative Comraon Area monthly charge le
calculated as hereinafter provided, a�entative Common Area
charge oP one-twelfth of a eum which is the product obtained
by mul�3plying the number of square feet of building are8
on �ear�s� land on the first day oP r�uch calendar month by
10�. W3thtn 60 daye aPter January 33et next aucceeding the
date when building area on Sesr�' 2and first ezists, Brookda].e
ehall aertify to Se�re in Nr3ting the aoets and expenees of
operating and maiatainit�g the Comrnon Area or, i!' 9ears hsis
elected to operate and mainfi.ain itaelf during said period
at its own expenee the portion of the Common Area lxated
r on Sears' land, the coe�ts and expensee of operating gnd
ma�ntainir�g the aentral taall area (including the charge or
credit to 3ears on accoant of parldrig atalle determined as
provided ln p�ragretph (a) or (b) oT Section 1.6 hereoP�,
during the perlod eonunenaing with the date �rhen buiiding
area on 3eare' land first existe and endixig at the end of
aa#�d January 31et, at�d thereupon iP the total tentative
paymenta made by 3ears to Brookdale ror euch initial period
are leae �han 3eara' share oP eaid coeta and expen$es,
cash in the amount of such diPference ahail be paid by Sears
tc Brookdale but if such tota2 tentative paymente by Seare
are more thsn Sears' ahare of eaid costs and expenesa, caerh
in the arpount of euch diPference shall be rePunded by
Brookdale to Seare, as the case may be. Upon the furniahing
_13_
by Brookdale to Sears of the aforesaid certZfication of such
cvsts and expenses, a tentative monthly Common Area charge
to Sears for the next succeeding perJ.od shall be calcuiated
by dividing Sears' share of sa1.d costs and expenses for said
initial period by the number of months (including any
Sraction of a mon:h) included in aaid initial period and
ad�usting the same to reflect reasonab2y anticipated in-
creaseg or decreases ln operating coats and expenaee. Seara
�hall pay to Brookdale in advance on the firet day of each
calendar month after the date that Sears recelves the afore-
said certification of coeta and expenses from Hrookdale until
a new tentative monthly Common Area charge is calculated
as hereinaFter provided, the tentative monthly Common Area
charge sa calculated. Within 60 days after the end of the
operating year of Brookdale Center (fram February 1 through
January 31} which ia current at the time of the aforesaSd
certification by Brookdale to Seare and within 60 days after
the end of each aubsequent operat�ng year of Brookdale Center,
Brookdale shall certiSy to Sears in writing the eosts and
expenaes of operating and maintaining the Common Area, or if
Seara has elected to operate and maintain itself at its own
expenae during such period the portion of the Common Area
located on Sears' land, the costa and expensee of operating
and maintaining the central ma21 area (inc].uding the charge
or credit to Sears on account of the parking stalls
-l�t-
i
determined as provided in paragraph (a) or (b) of Section
1.6 hereoP) during the last ended operating year and thereupon
if the totaZ ter�tative paymente made by Sears to Brookdale
durir�g eaid laet ended opereting year are lesa than 3ears�
st�are of said co��e and eapenBes, cash in the amount of such
d3fference ahall 3e paid by Seara to Brookdale but if suah
tota2 tentative p8ymente by Sears are more than Seare� share
of the.coete and expe�see, cash ia �he amoun� oP such
1
difference ahall be refunded by Brookdale to Sears, ae the
caee may be, and a new tentstive monthly Common Area charge
�to 3eare Por the next aucceeding period ehall be oalculated
and paid by Sear$ aa aPoresaid and ad�ustment of auch
tentative monthly Common Area charges ao paid by 3ears to
Sears� actual Bhare of said costs and expenses ahall be made
upon subsequent certification by Brookdale as aforesaid.
Upon the request of Sears, Brooladale ehall cauae annual
audits to be made by certified publie aceountants of the
costa and expensee o� operating ancl maintaining the Ca�¢non
Area, or, iP Seara has e�ected to operete and maintain at
ite own expenae the portion of the Conunon Area loaate� on
Sears� land, the costa and expenses of operating an8 maintain-
ing the central mall area, includirig the costs a�d expenses
to Sears and Brooladale of maintaining the parking etalla
located on the partion ot' Broala]ale Center owned by them
respectively.
_15_
ARTICLE II
3tandard of Maintenance by
Brooladale an3 Se$re
Sestion 2.1. Brookdale agree$ to maintain the
Brookdale land, a21 buildinga lacated on auah land, and
such portions oT the Conanon Area aa it nbay from time to
t3me undertake to operate �nd msintein under the terms and
provisione of thi� agreement, in a ciean, eare and eanitary
condition, in conPormity with a11 applicable lawa,
ordinances, reguiations and aodes, and in good repair. �eare
agreee to maintain the 3ear$ land, all buildinga located on
auoh land and such port3one oP the Ca�unon Area as it may from
time to time undertake to operate and maintain under the
terma and provieions of thi�c agreement, in a c2ean, eafe and
sanitary condition, in conPormity with a11 applicable la�rs,
ordinancea, regulations and codes, and in good repair.
ARTICLfi III
Custcmer Parkirr�
Section 3.1. Brookdale and 3+ears each agreea that
the parki.ng area on its premises in Broakdale Center shali
be available Tor the parking oP cars oP customers or
prospect3.ve cu�tomers of any oP the businessee located i.n
Brookdale Center without charge, until the expirat3on of
35 yeare from the date when Sears' Brookdale Center department
atore referred to in eaid Purchase and Constructlori Agreement
-16-
Pirst opene for business, unlees Seare and Hrookdale by mutual
agreement establish a charge for �uch parking. p�ter the
expiration o*' such 35 year period, either Erookdale or 3ears
may tu�ke a a:�ttrge for parking in ite parking gre2a in
Brookd�la C�tt�er ;v3thout approval oP the othsr. In the event
of euch parki�sg c'�.�rge �he incorr� 9er3Jed therPSr�m ahall be
applied again$t the coat ot' maint�lning the parki:�g areas and
�he appurtenancee thereto eo ge to reduce the net aoet
thereof to Brookdale and 9ears.
ARTICLE IV
�np10.Vee Parkir�,
Seation 4.1. Officerg, employees, lessees,
�iceneeea and eoncessionaires oP Seara eha1l park their
motor vehieles and motor vehicle$ oP Seare in parking areas
on 3eara� land designated to them by Sears and not in arLy
other pa.rkit�g area in Brookdale Center. Hrookdale �hell
require, by appropriate etipulation in ita atandard lease
with respeet to �pace in Brookdale Cen�er, that each o�' ite
�a1d lesaee� ehall park, aad that sueh leaeees' offiaere,
employeea, licenaess and oonce�sionaires ahall park, their
motor vehiale� only in par3dng areas located in the part of
8rookdale Center outeide ot Se�rs' land which are designated
by Brookdale as employee parking areas.
sectian 4.2. Seara� shall, upon the written reques�
oP Brookdale, furnieh tio Brookdale the au�omobile license
_i7_
numbera of motor vehicles of Seara and of Sears' officere,
employeee, leseees, liceneeea and coneeeeionaires, and
Brookdale eha21, upoa the writ�en request oP 3eara, Purnieh
to Sears the autamobile licen�e nurnbers oP motor vehicles
oP Brookdale, of each lesaee of Brookdele, and of Bueh
legsee�s ofPieers, employeea, licensees and coaCeBeioi�aireg
and, for the purpose of facilitating the enforaement af
employee parking regulations, Broola3ale shall requi.re by
appropriate stipulation in its etandard lease �vith reepeet
to apace in Brookdale Center, thst eaah Iessee of Hroolcdale
furniah to Hrookdale the automoblle 1laenee numbers oP motor
vehialee of such leesee and such leeeee�s officers, employ�eea,
licensees and aonceasionairea.
ARTICLE V
�ns and Advertleir,�
Secticn 5.1. Seara agrees that no aigne shail be
place� on the roots oP its buildinge located on 3ears' Iand,
and tha� no eign on the side of any sueh buildirag shali
protrude from the building more than l2 inchee. Brookdale
agree� that it wiZl, by appropriate stipulation in its
standard lease r�r!l.th respect to spaae in Brookdale Center,
prohibit tts 2esseee !'rom plac3.ng e3gns oa the roofa aP the
buildings or premises which they so lease and will restriet
such leasees from placing any eign on �he side of any such
building or premieee that protrudes from esid building or
-18-
premiaes more-than 12 inahea. �eara agrees to erect and
in�tall aigns with reepeCt to its automotive aervice gtation
in general conformity and harmotzy with the ct�lracter oP
s3gns used by Brookdale.
a�ricr� vi
Noure of Operation
Section 6.I. Brookdale and 3ears each recognizee
that it xe in the best intereeta of BroolaaaZe Center ae a
whole and oP Seare and the individual tenants of Brookdale
in Broolcdale Center to establiah and maintain, in$oPar as
poaeible, uni�orm hours during which 3eara and all tenanta
and oceugante oP Broolca�ale Ceater ehal2 be open tor bueineae
and Brookdale and Seers will make evezy etfort to agree upon
and msintain $uch uniPorm hours, but 3ears hereby reaerves
the right to elect to be open 2"or buaineae at ite deparLment
store in Broakdale Center at times other than the echedule
oP buainess houre set for tenants of Hrook�dale in Brooladale
Center.
ARTxCLE 'VII
Notice
Section 7.1. Al1 notices, notifications ancl
requeats provided Por herein by either party hereto shall be
in writing and shall be deemed to have been given or made
when depositetl in the United State$ mail as poBtage prepaid
regiatered mail addre�aed in the case oP $rookdale to 700
_lg_
r
Nicollet Avenue, Minneapolia 2, M3nneeota, and in the case
of Se�,rs to 8 East Congresa Parkway, Ch�cago 5, Illinofs,
Attention Property Manager, or to such ather addrees aa
may from ti.me to time be designated by either party hereto
�o the other party hereto as ite mailing address for the
purpose of this Operating Agreement.
ARTICLS VIII
Term of This A�reem8nt
3eation 8.1. Thie Operating Agreement ehall ceaee
to be oP any further force or effect at the expi.ration of
35 Yeare from the date when 3ears� said Broo]adale Center
department atore firat opene for buainesa.
ARTICLE �X
Successors and Assi n�s
3eo�lon 9.�. Thie Opet�tfng Agreemen� eha22 be
binding upon and inure ta the benePi� of the respective
parties hereto anci their suacessore and assigne.
IN WITNESS WFtERE�, the partiet� hereto have eauaed
thie Operatir�g Agreement to be exeeuted by their respeotiv�a
officers and their reapective corporate eeals to be hereunto
affixed pursuant to the authority of their re�pec�ive Hoarda
of Directora as of the day and year firat above written.
In Preaenee of BAOOI�ALE CENTER, INC
4 '�.v a..i.c,w s e a en
And
cretary
i
-20 Corpo�e►t�'�Seai
t
In Preeence oP: SEARS BiACK AIV� C0.
e ce 8 c en
�'I�,,,ct�,
/t'dl�C And
s erea
.•_..r
a ..t
Corporate 15e.ai,i'�
•J
STATE OF MXNNE30TA
C OtJN'1'Y OF I�NNEPIN 8 e :i'',�
this d of� 960, efo me appeared
�o me �rs�o�vn, wao, bei e u y evtorn_ c�i3 eay
that they are the Preeident and thel�cretary reBpeatively ot
Brookdale Center, Ina., a aorporation, that.the seai afrixed
to the Poregoing inetrument is the aorporate aeal oP esid
corporation, and that eaid instrument rovas executed in behalP
ot eaid corporation bq authority ot' ita Board oP reatora;
and that ea3d and
q acknowledged eaid'3'ne rumen'� '�o'Te t e a n ee o
said corporation.
l�ary c, eru�ep n ounty, 1�&nn.
IKy Coanmissiori bcpiree:
B it. NcF7. t':t�.y �u::�s, N::..�;in Caa�►. Oliaa.
STATE dT' IIiLIN0I5 r� tz�:res ;�sr. �9s7.
es
COUNTY OF COOK
On thie ��'�day oP�l��'', 196�, bePore tne appeared
y� an� �I�III[ J. COUQ�
�o me perao�nally known, wFio, being oy sworn, �sy
that they are the Viae Preaident and ���tary re8peotively
of 3ears Roebuck and Co., a Qorporation, that the aeal affi�Ced
to the foregoing instrument is the corporate aeal oP eaid
corporation, and that said inetrument was exeeuted in beha].P
of 9aid carporation by authority of ita B���f�D���e;
and that eaid a. it. tietaal= and
ac�anowledge8 sa ns rumen e e Pree a o
said corporation.
a c, oo un y, no e
I�y Commission Expi
i
-21-
t
FZRST SUPPLEMENT TO OPERATING AGREEI�NT
At3REEMENT Made this /��day of �.�,-�.,,�,6..L,,.
1960 by and between BROOHI7AI,E CENTER, INC., a Minneeota
corporation, first par�y, and SEARS ROEBUCK AND CO., a
New York corporation (hereinafter referred to ae "Seara"),�
aecond party,
WITNE53ETH:
WF�REAS, the partiee hereto contemporaneously�
herewith sre entering lnto an Operating Agreement with
reference to a propoae8 ghopping center to be l�own as
"Brookdale Center" and to be located in Hennepin County,
Minnesota, and
WI�FiEAS, the parties hereto wish to suppZement
and vary the terma of eaid Operating Agreement ae herein
provided,
NOW, T�REFORE, TT ZS AGREED BY AND BETWEEN THE
PAR'rIES H�RETO THt�T, notwithstanding anything to the c�on-
trary contained in eaid Operating Agreement, Sears' pro-
portionate share of the costs and expenses of heating and
airconditioning the central ma21 area af said Brookdale
Center for each year o1' the flrst five (5 operating yeare
of said Brookdale Center (from February 1 to Januazy 31)
cammenctng on or after the date when Seara' department
store irt said Brooicdale Center firet opens for buaineee
i
shall not ezceed the sum of Three Thousand S�.x I3undred
Dallara (�3,600) and, in additian, if said department atore
Pir�t opene Por buaineae on a date other than February 1
of soare year, Sears' proportionate share of euah ooets and
expenees for the period ooaraaenaing with the date ot such
opening and extending through the next eucceeding January
31 ehe�ll not exoeed euah proportion of Three Thoueand Six
Hunds*ed Dol,lare ($3,600� ea equale the proportion �hioh the
;s,
number of dsys inaluded in euch pertod beara to three hundred
eixty-five (355 �Ys
IN WITNE33 WI�REOF, the parties hereto have eaueeQ
this Firet Supplement to Operating Agreeinent to be ezecuted
by their reapective oPfieers and their respective eorporate
$eala to be hereunto afPixed pureuant to the suthor3ty ot
their respeotive Board ot' Direetors, as of the day and year
flrst above writ�en.
In Presence oP: BROOI�ALE CENTER, INC.
1�- c �,�e i�,. By I z ,t t
e 'ee en
,t�,,�-�, And li�. i�+�'''�...�.c l
e cretary r c
C.S.
SEAR3 OEBUCK AND C0.
e ce Preeia��
ana y1�L.�., y. r'- ,�.�L,_,.�1
A I s �ecx��ry
Assista t
C.�.
t2-
i:
STATE OF MINNESOTA�
es
COUNTY OF �NNEPIN,
On h1.s day of �U�'�`�l 1960, before me
appeared Q, an3 to me
peraonally o�rn, e ng �y� e u s orn, eay that
they are the Presideat and thelr3ecretary of Brookdale Center,
Ino., a corporation, that the eeal affixed to the toregoing
inatrument ie the 4orporate seal o! said oorporation, and
that eaid lnatrument xaa exeouted in betsa2f of said corpora»
tion by a hority oP ita Board o!' otors; and.that e81d
and
a�cymaa�' e ea ne rtunent o e� '�ree ac n ee'a"o'3'�' f
eaid corporation.
�a ary Pu c, nnepiri County, Minn.
A� Comniaeton 8xplree:
D. K KEEPI, Hat�ry PuDlic. Hennepin CanMy, MiN4
Yv fa�mm�dnn ��r Nrnr. 1967.
STATE OF ILLINOI3
se
COUDi',P'Y OF' COOK
On thie a�' day of y�'Y`"^"'�'`"� 1960, before me
appeared c. Y, wtosii an i reu a. Couc�rx to me
pereonally'7mown, wno, be'�ng �y ���s sworn, di3 say that
theq are the Viee Preaident antl e cf 3eare Rcebuak
and Co., a corporation, that the eeal aff�aed to the Poregoing
inatrument la the corpora�e seal oP eaid corporation, and
that �aid inetrument rvas executed in behalf oP esid corpora-
tion by authority oP its Bosrd oP r r e ctora; and that said
G r and ■��lt COUGHLl�
ac rnv g a ns rument �'�he fr'ree a an ee
aaia corporation.
xy c, oo y, no s
1Ky Comaaiesion Expi s:
_3_
i
Lr�tY tuc -��/.O/63
1
AYTES �j; �a �L�.l�t:.. c�►. i�a.���'.:: t
�lL Rl{�o�.� ti
�1.w 1�4. .t.
•,iH►�r.tt Gl t:��i�
!r �O�ite�G'�w1cu.� c�n�i Ao50R�IT
4
AGRE�NT tiaae this 7� dar os t:�..i�
1963 by ar►d betxeen BROOlmNI.E CDtTER, ffiC., t IKirnueota
corporation (t�ereinatter reterred to as '8roolodale"), rir�L
pnrts. and S�ARB R�DCK AND CO., a lter ?ork oorporatior�
(hcrcinafter referre0 to a� MSear�"). seoond party,
YI'1'tiBSSE'PI�,
�'tLRFAS BroolaQale p�as �1� ot �rsots B, C, D, as�
F, Regiatct�e0 Lsnd Surrey llo. 936, liles o!' the Registrar of
Titles, CountT ot 8e:u�epir�, state o! tElneseaota, aaQ tl�tt
pert ot Tract 0. said Re�itterea Lsnd �tr+►ey IJo. g36, Aiia�
1 or tbe Regiatrer of Titlea, CounL'� o! Hecn�piri, Sta�t.e oS
l�iru�esota. iying xest of the Fist liae ot the lia�t �e-halt
(W;) ot the SonLhirest puss�tsr �srr�) or saetsoa z, �,s�a
ii6, itaage 21, Caunt� o!' geanepin, SLate a! )ltru�esota,
herelisa!'ter x�etel�ey0 LO b ttse 'b�rooio0al� 1at�l1", 1�
1�RF�18 Seara oxns a11 of ?rao��aid A�egisLestd
Lnnd aurre� No. 936, l�iles o!' the Iisststr�r or TiL3�s,
Cosa�ty o! He»riepin, Stat� ot Ri�n��ots, hereiaatter i�eles�d
to aa tbe "�r� lan0",
1f0i1, I? I8 AORAm SY nE�l TliB
rut�n�a �ro �r
1. T� t.o�u '�twokdal� O�nt,�r" a� n��d lus�in
C sbali Aeaa t�e araa oasqriae� o! botb tbe 8roakOsls laAd
an� ths Ee�rs 3atb.
�t �a
I
�.rf�•
.-,aJ ���..t� .r'�
r �'�'J
2. Rl�e tam "Caa�on Ilr�a" u usea herola t�saa�
the entira area aesignste� tor oaa+wa tue or benetit rithia
tha outer proycrt� 1S�ita. of Broolada2� Ceatsr, inc2udt,ag,
but not b� r� of 12r�itsLion, a11 p�rld�g lots, landsoaped
and racant areas, passages tor truab ana a�ta�oDiles, araa-
xaye, roeas, traila,curbs, oorridori, saa �a12 aad coln�t arw,
together trith publio l�c121tiiss,�ucb as ra�hroas�, toilets,
drit�fcl.etg lotu�tains, �ubiia stair� ramps, slielter� atd b�s
atstions, xiC� t�av3litie� appra�tsrn►nt to eaah. ?be Comoa
J1rsa •halt not lt�olttde tr�tak 1aaQit� do4la, oa�eeroial u�a�s
it�tenaea !or raatia6, a� the sase sl�a3l atist traw t3ae to
tlsK, �reaa rithtn tbe buiiding� loaatsd an Sau� Sa�A, or
ronda ttl.thia the oater nroPert7 liaits o! Srookdal� C�eft�r
trhile �onintait�ed b� pub3la sutLoriLT. il�s Camo� As�ta aq
be sxpanded, eontraateQ or et�ed lrao tiie to tiss ia
rea�eat to tl�s portioo lt�ereo! looat�d car broofaQ41� Lnd, aa0
b� d�ars riLh re�peot to tl�e poz�kion of tl�e Camo�oa Ar�a
iocuted oo �srs 3at�, so lo�g ss t6� at�i�ns parkie� ratios
aeb !orlh ia past�raph �t ot tt�i� Ages�t are wsiAtain�d.
3. 8rootamile �hall bare autboritq to �raloe ntah
tvles �Q r�ulatioar �rith r+e�nea� Lo tbt we aT t1� Ca�oo
Aswt as aears �htll asre� to, pa�o�rt� tl�t S�ari i6a21 aot
xithholQ ita a�aMat to �uo� at saiQ rai�� x�in7atiow
nropoaa4 b,T aroolo0ale a� are s+a�aa�abU o� as sxr evsla■a�
r k='i� i�P�t esnt.er� or u bap bera ��lab2isbM t�ith
..2_
ra�pecti to the shopping aantier 1mo�m �e "SauLhaai� Ceater"
lxatea ta Fdins, �lianetota. Brootcdale and Saars each agrees
to abiae by �uch tvles an4.regu3atio� s� nay De so agreed
uDoa.
4. $roobdnie agroes to yroride �eb mnitiW,n or
oawe to be �ro�taee ane �niatasnea on tbe Broolo0ai. 3apa,
pnrking areas providirig a parkiceg rat.t,o of at least 5}
parkl.ng �ta11� tor aatasobllea (ot ths s�me a;�prwrLoat� sise,
lcr�h .r�a ttsetb as tt�e arernae 1959 »oael. ot �l�osri�a
auta�obile�� Der 1�000 iquare t�ex o! renteDle builQing area
BroQkdais laa0 iwd a pnrlci�g ratio ot at leait 6} yark-
i�s sta12� !or wob auLamobilea per 1,000 sqnaa�e t�et ot
ncru�ntable husieing area oa broolodais 3�, ae� eears a��s
to paw�ride s�a �nai�taia o� eoars 2eae, parldeig arsas p�eyviQing
a Pnrkina rario ot at iea�t 6� Dnrki� sta23s !or snsb
autc�sobilas per 1,000 �Quar� lt�t ot buiidins ar�a ow 8s�,ra
larid.
/ts vssd la thi� �rsw��at, tAe �rase 'r�ntable
�uudl.ng ares on B�ooladale lsnd' �ear�s, t�e arosa LuilOtey�
arsR o�r •,�ab �ortions or the a�alasu�s m aebolol�.1. Lae
(other thaA autaoo�i�� ur*loe station� ae�d p�rdeo �opi
loaatea ia as�h p�rt) a� sr� at �u partio�lar l,i� �it�rr
��a�ea �r ia��e� pa�rueat to �fiioh rent i� td�a �aarain6,
or ownitt+a �nd otria�M !or s��L b�t pot ist �rsnt�a: t6e
�s "aoar�atabl� bui1� uw oo Sraoladal� l�a��
_y.
6
�eans tt.c• gross btrileitlg arca ot' suoh builale�s op
Erookdaic laaQ (other tt►ao autmotive servioe rtation� and
garCcn ahoDa ioaated in such pnt�t) a• are not i�ented and not
affered in xhoit or in parC tor roat aM �s are st tbe
partioul,er tiae aaapletad and �ither vpen tA Yhoie or ir+ part
tor bueit�ers `o the publta or. iP ao! to ba oyan in tiho3� pr
in par�t ror bnsines• to thc yub2ic, reac� ror oacuPanc�►1 �r�e
the phre�e "bqiidtng at�ea oc1 Seare la»d", �cans thc �roes
building area ot sucA bu�l.lditigs on Sears laad (other tha�
Che autaQatire �erv3oe sLation u� Zarden ahopa loostea
�hcrMn} a.a are �t the pnrtioular ti�rc ampletea arid aither
oDen in rhole or lA parL !or busi�►eis to tAe pt�lia or,
it not Zo 1re open in xhoi� or in part t�or busineas to the
public, reaQt !or oeeupanr�. �or t!u �u,rpors ot this llsree�et�t
the eo�tructiloa of an aaditioa to a oampleteQ Duildiu� shsll nat
render sala butldin� inec�leL� or twreaQ�r fo1� oaoa,pat�cy
during the neria! ot suab oon�traintiaa b�t ttss aiw ot t2�e
a8dition !o snob baii� slsal2 twt be iaaludaa in tbe �s
buiidit�g area thersaf tor the y�a�pc�se� ot �hia �preesent
vntil suaA aQattioq has besn ooaplste� tt�d is �ither o�n it�
rhota or tA par! tor busineat to ths pyLiie� Or, it' qoti �o y�
QPan in »hoie os� in part tor bwiae�s to tl�e p�lie, rea� tor
oaoupaAOy. Af ased itt tl�i• yara6raph t�s PhtMSe "srosi
bnildi�g ai'�a" t�a�s tb� �at11� !'l0or Iti�e� ot' the na0lo��d
�P�a of �aob l�nl ad' lt�e paxrCieu�iar lmtildias sxoinsin ot
tlo�r araa oorsstitutir�g pnrt of thr Caaaon Area e�-
cluaive c! t�oor axa of arp peothotue o» t!u root howing
heating. airco»aiti�it�g or ven�ilaelrf� eQuipaeat.
In the evepL of expnasiaf by 9ears ot it� hulldings
on Sears land or by Broolodale or aroram eLe of ita
buildings oa Brockdale lu�d, Sears, Broolodale or �uah
ot2�er person, as the ease mnr be, •l�11 be al.�ren credit, !n
detatviinir�g Khether it i• maiatainlna ar Qansir�g oo be naii►-
tnined tAc aforeeaid ratio o! 6} parkit�g �Lall� per 1,000
s.�uare teet ot Duiidir�g at�ee�, reAtaDle buiidias arex, or
noeu�entab2e bulidir� erra, a� tbe e�se ma� be, tor atip emess
over suah ratlo theL eztst• �rith 1rt�pe0t t,o tbe par]�slg arsl�s
on iti propertiy in �lrooio0ais C�atss 3�msdiat�7,� prlor to svab
r
eXpanl�ioTi. $fe raidtetfan0e or tbe aTOl�esaid siq1A� yarkielg
MtlOt thall be !7[EUSOd t0 the ��tt�nt that naiat�nanoe thf='e�
of le 7ree�erea 3�possible beaaw� of aand�mt�tion o! laad !a
SrookEalr Cesst�r.
5. b1��eot to suob rule• and s�eBnLt�o�s trtth
respeet !o tl�e n�e oi' the Caem �see p wepr ba agt��Q tepon
bY Brooia�2e tnd Sear� si l�ereinD�loa� pa�o*laa tr�d suib�eot
to Lt�e rertrictiau oct �epio�r� yarld� �eeltied ip par�•
�ra�h 6 hsseot� grookdaie hersD� �raAt� to Slear� tor tt�e use
a! the lstt�r ana tM iatter'• ottiess�, rwpla�ss�, iei��es�
liaens�es, imritses. eoboes�ionaires aoQ o�stawera a aor-
txcluai�e rislst t,s n�e !or bwin�ss �arpos�� aIl port.iow o!
,r'•
tho Co�son A.rea, as it exlst� tra� timo tfl timc, locatea on
Brcvkd�l� 3a�a, att0, likc�is� stb�eot to sueh t�qle� at�d
regulations a»d suoh aep1� yarkipg restrlotic��, Scart
hcreb� srants to Stqokdale tor use o! the latter tad tbe
latter's ofrieen, e�eyiay�eea, le�reea, iiecaseei, iesviLeea,
oonceaaionairet ar� eustiavacrs, and tor tha use of t?u ottYeers,
emplayees, iicensees, imritees, eoneeaeiohnit�es aaQ au�taacrs
of lessees lras Broola0ale, a noq-oaaiutire t�ight to use tor
bueiness purposeu ali porEton� of the Co�son t.raa,as it exist�
i't�am time to ti+�c, 2ocated o4 be�rs 1sad, pa�oridod �hat to t1�e
extenL Aeeaed naoe�sary to pz�went the aoQuiait.toa by
prescriptioa by tl�s qabiio ot s�i�+ts in ats4 to �s,iQ Caa�aa�
Area tt�e parties he2�eto �s,y !'!aw time to time tempor4rily
e�ose the �o�rtions o! Lhe Comroori Area looatod an ttseia�
respeotive lanas, eteot pri�►ate boqu0ary mt�rketa. at� taloe
snct� tvrt2�er aotloc� !or that pur�ose as s� De apyronriate,
at1Q tf0 tti0�l RQt1Qp /2�i11 b! d!�ltfO �A K10L10!! OS' d1iL11�
baAC� of the riahts hereterbelor� te� ttds qa�aLri3� 5�4t•e0
Lo use tor Dpsir�s�a p�yoses s2i portloe�s o! tl�e Cam4vn At�ea.
6. Sbe otrioars. �qla�+ees, Ispses, tio�e�ees,
aa� oos�oe��imslre� at' 8eirs sba11 psrk their eator ��tsiol�a
and motor �ehiolet of aears lo parking areas on 8eara IatW
easig�tea to tlks� 1q 3�ars aM oo� Lt at�p► oth�r pu'1det6
�iva la Broofooai� Centrr. 9�oolo0ale s�ll requ�ir�, b�
nropar ati�ul�tioa ie� its s�anaaid i�ase ttiSh resy�et te
��0! 1A D3'OW�10 C�A�1'� t,b�1i s�eb O� 1w 1tNNi �11
J'
park, anlf that such iesseea' oflloer�, employaea, licea�eee
.and conceselor�airea shall parlc, tbeir motor whialet oelr
in perking areas loasted oa Sroolcdi►le land xhioh are
deaignatea by Brooiadale aa emp2oyaa parkLr�g srssa.
7. �i� Agrecm�nt is coafit�oatory o! t,he Operatinig
Agreement dated liovember Stl, I�O b� and betxeea Hroolodale
and Sears, as ameaded by Fir�t Supplemeat to raid Opentirsg
Agreement dated Novrmber 21, 1960, and ali o! the term� anQ
provisions o! taid Operating Agreement atid Miyt $u�plemet�t
thereto are expre�sly inoorporataa hereia by relerence anE
made s psrt hereol.
8. Ttie right grantad by each ot the res�ectire
parties hereLo to the other by the provieions o! paragrapb
5 hereo! shn11 aontinue, and the term■ and p�avisions
ot this Agreemsnt sad saia Oparating A6reement as amended
by said Firet Supplemant thereto shall remaitt etteative, nn-
ttl tt�e elose o! busine�s I�.7 16 199„�� at whioh time
such rights st�a12 te�inste and saob t•e�s aad prori�lon�
shali oease ta bs of aen► tnrthar toroe oa� stteat.
g. Tbi� ABr�ement �hait be binding uDor� and Snure �o
tbe benelit ot the reapeotive parties hereto and tDeir
aucoeeeors ana aesigns.
21t liIT2I8SS W1�B�. the parties hertto t�ave
oausea this 1lgr��meat bo be exeoutad b7 theSr t�s�eative
`I
ct': irrrs ersd Lheir tropcati�� carporate erals Lo bt bcsc�to
trrs�c�a puraweac to tbe nuthaa�ity ot ttyeir s�eapcetitro 8oat�ds
01' Tireators as ot tt,e dyr �na ycar tir�t abovc tritua.
Ia lreseaot ati
1lRJOI�L� C�IfT"Jt. Zt:C.
t LtGl.Cl.. ��4.��i:��
•.rj LZTCS• �resi�reit
�R6«�' �t' (`•.E:ln...l.� Rnd t:' jJ,;
G s Cr�. •y�VVIU^.�:ti
b�.a�N
a Z r A►PtO�'FL
(r..�G.a.����� t
�G
ILa iae �residmn�
Iwe V..LL`�........ 1
r �iy/.ioC='e�
lsslG.=nL
J�
i
r'lATE OP �..SOTA
a�
COUQiTY 0�+ iiE2IIlETaT_
On thi� d47 39 �3. before �e
appcnraa e
to me perrana oxn, Y� ee �s�rars�, diZ�'
shaL ttur wr. olaeut .na tt�r seareLar�r or Brooloaal.
Center, Iao., a oorpo�tion, tbaL t�u �eal attised !o th�
forogoing irutrumeat is the co�te �aai ot sata oorpotst,tou,
ane triat eate snstru�ent Ms, e:eeutea in beMlr os ,asa
aorpo2otian by t►cMty o! iL� S:�M ot Dit�etors� ats� Lhat
sasa am 41
aakno�r e• a as�`�`"'r�a+ea�o be e a ac a� a�'•
aa1Q aorpo�ttlan. t t
}Z ,ct_ r• r� r 4•' .s
��'k?�����t—..��OY�. JN�JAIlQlJ e
r� F'� M..c.au dur.�. r•c.�i
..r :aac�ae� iayu� Jfar. i.1f
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BTJi'� ILL2NOIS
COU�Ti QF coor
aa t�s z�� ay or o�«�r 1�63 serore
m� appeared 1�� a.� ETi�
to mc �per�oz�a"Z�"hiom�o, bai'� b� ��rn. �a7
that tt►cy ar� tha liloo Pre�ident and tl�e o!
sear� 8ocbuak and Ca., a oo�poratioQS, thsL Lhe seal atti�ce0
to the tore�oie� itulr�aeeat is ttr ao1��►te seal at saiQ
ea�rp�tion, aa4 thst �aid inat.ruset�t t�as es�o�t�0 in bs o!
�14 oOrpOSatd� by�� tj Oi'� BOaad O! aLl�OtoN��'!�
t�sst .asa
�efases+la0�e eu� ameaif�S b� sa �to
�aid oorpa��tim. r C,�
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AIt91fEt111AlAllllAtE
r4nrxa SECTION AA EAST y COURT SECTION BB CENTRAL COU
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LEVEL TWO PLAN .a..
SECTION DD EAST COURT i PARNINC DETAIL PARKING DETAIL '•nw
I'=100' I/3Y=1'-0' i 1/3Y=1'-0' i/3Y=1'd i d
1 �Ww�u�+
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_�"J'SRE PUN LEVEL ONE PLAN IOCATION PLAN Wpe
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�c-6/16/60
PURCtiASE AI�ID C�TSTRUCTI�1 AtiREEMENT
AGREEEI�NT l�ade tt�la ,�'day o!' -_►�"n(!�
1g60, by en8 betvreen TI� �AYTON COMPANY, a I�linnesota corpor-
ation (hereinafter rePerrrd to aa "Dayton's"), liret party,
BROOI�ALE CENTER, INC., a Minneeota corporation (hereinafter
re�erred to aa "Brookdale"}, second party, and 3EARS ROEHUCK
AND CO., a l0ex York corporstion (hereinalter reterred to ss
"8ears"), third psrty,
WITI�:SSETH:
WHEREAS, Dayton�s ber�by repreaenta that it aaa
owne t:�e fol2awing deecribed tract of land located in
i Hennepin County, Minneaot8, to-�rit:
Tha� part of the SautM�est n! Sectiors 2 and
of the Southeast of gection 3, Townahip 218 North,
Range 21 West, Hennepin Courity,Miru�esota, deacMbed
as follawa: �eginnit�g at a point la the Neat line
of the 3outhweet oP said' 8ection 2'; 932.85 leet
South ot the NorthvresL corc�er thereof, thence
running N51o14�E, 102.99 feet, tt�ence runntng 828p46�E,
177 feet, thence running N61�14'E, 50 feet, thenae
rutming 828 �E, 553 teet to a point in �e �torth-
xeaterly right of May line of 3tate �iigliwa►y Number
100, thence ruru�sng 552�34+w along aala s�.ght of xay
aine 360 feet, thence ru�ning 837 siong �sid
right oP xay line 25 1'�et, tbence tvnning 852°34'W
along said right ot t�ay u.nt 201.66 feet, thenee
detlectirag to the lert on s teb ehor�! spiral oqrve
of ilecreaeing radiva {apls�l angie P degreea) a
distance oi' 205.51 teet, t2�nce det�leat to tye lett
on a eurve having a radius o! 3024.79 feet (deita
angle 16 degrees 04 minutea) a distance oP 27y.12
t'eet, thence N23°30'W, 213.96 teet, tbence r�itag
N14o58�w, k30 teet, thence runni�g N11o43�V, 112
2'eet, thence runnirig 1�35 20"E, 461.56 leet,
thence running I+t61o14�B, 29�'.Ol feet to the point
or aegtnnsng For the p�rpoae of thie deacr3ptioa
1
the Yest litu of �tt� SoutM►es� ot ssia Secti� 2
3e aoaeideree to be a due North and 8outh lirie.
hereit�l'ter reterred to a� Traot A, atid
WHEREAS. Dayton�s her!eby a2so repre�een�s that St
naa ermB the loiloaing deseribed tract ot Iand ad�oiniAg astd
Tract A located lA He�epin County, Minneeo�a, to-�rit:
Ali oP Lo�e 10 and il aud ail that part ot
Lots 12, 13. 14. 15, i6, 29, and 30 lying North
of State Trunk Highvr8y Nurnber 100, Auditiora
5ubdivision Nwaber 218, in S�ation 2, Torymahip 116
North, Renge 21 weat, Nennepin Cauaty, IKinnesota,
and e21 or Lots 49, 50, 53 54, l�uditors
Subdivigion NuraDer 216, in 3ectioa 3, Townahip 218
Nortb, l�ange 21 Weat, Henneptn Cau�ty, Minnesots,
and that p�rt or x.ot 5i said Auditors Subdivision
Nivaber 216 lying Sast o2' s line drawn parsilel to
and 225 leet 8ast or tne wester�► is.�e or said Lot,
�nd that part of Lot 52 0! seid Ataditors- 8ubaivielon
Number 216 lyirig Is'�st ct a line dra� pa�llal to
and 225 �et Eadt ot the Ysster�y line ot said Lot
Logether xixh the South 80 leet ot the i�iesterly 225
Peet ot e�aid Lot 52, and a11 that part ot' Lots 55,
56 and 57 aatd audstora Subdivieion Nwaber 216
1yit,g Eaet of a iine draxa paraliei to sr�d 150 feet
East of the Westerly iinea ot eaid Lota 55 56 ana
5�, together witb an easement !or the pasaage ot
perBOna and vehicles over s strip ot 1sAd H(� leet
tn Midth acroae the �TeaterlY 150 Teet of seid Lot
57, the aen�erline ot eaid 80 loot strip bei�g t
line Ora7m paralle3 to and 137.55 i'eet So�tth o�'
the North liu�e of said Lot 57, �uad sil that psx�
o! Lot 58 said Auditors Subdivisiori Nu�nber 2i6
lyit�g Yeat o! the Northn+�aterly iine of 8tate �runk
Higtnray Nwnber 100, esaept the South 33 leet tbereot'
!or pubila sts�eet, and s�ccept the lollaMtng described
treat o! la�a�
That part oP tl�e Bauthaest ot Seation 2 at�d
or tr�e soutneast }.or seetso� 3, Townsr�sp u8
Horth, Range 21 i�test, Heru�epie Coun�y. ldirweaota,
deacribed ae lollo�s: 8egi:mi at a polnt in
the Kest line oP the SouthKest� ef said 8ection 2,
_e
a
932.85 t'eet South of �he Nor�hwest corner
thereot, thence rutu►it�g N61�14'E, 302.99 ls�t,
thenae runni S28a46'S, 177 fee�, thenee
running N61�14 �E, 50 feet, thence ruru�ir�g
S28o �E, S53 teet to a point tn the llTorth-
weeterly right o!' t+ay line at' 3tate Highway Number
100, thenee running 352a34 �t� along aait! riBht ot
tivay line 360 feet, thence ruanit�g 537�26'E along
aaid right oS way iine 25 1`�et, thence running
S52°34'W elong sasd rigt�ti o! way line 2�1.66 teet,
'thence aeflecti�g to the lelt on a ten ahord
spirai curve of decreasing radiue (spirai at�gie
2 degrees) a dietanee o!' 205.51 reet, theace
dePiect to the le!'t on a curve havSng a radiue o!
3014.79 feet .(deita eu�gle 16 degrets 04 minutes}
s dietanoe ot 275.11 !'eet, theaee N23�30�w, 213.96
Teet, thence running N14o56�N, �i30 teet, thence
running Nllok �w, Il2 feet, tt�ence rusuiing
N35�4g�2o"E, �6i.56 reet, tnence ru�sr� H6ioi4�E,
297.01 teet to the potnt of begitmin8. Far the
purpoae of thie description tbe liest line o! the
Sauthaea� ot' asid Section 2 18 considered to be
a due Nortb and 3outh line.
herelna!'ter reYerred to as Tract and
WHEREA3, it is the deaire o2' the.parties hereto to
provide, upo� tbe conditione herein specit'led, for the pur-
chase by 3eara lrora Dayton a of said Trect A and tha eazs-
struetiot� by Sears ot buiidings upaa� said Traat ix� the
event of con�truction by Hrookdale o! a building or buildinga
upon eaid Tract B, so tt�at the Duildi�gs aonatruc�ed by $eara
and Brookdale, together xitb ad�oining pe►rkin6 and.other
tacilities, Kill caastitute a shopping center to be 1�wtn as
"8rvokdale Ceater", ail sa more fully epecitied tiereinatter,
and
WHERFAB. it is contemplat.ed by Dayto�'s a�t�Q
_3-
t j
Brookda2e that, priar to the e�srd of a construction cantract
by Brookdale �'or tl�e develop�nent and improvement o! ssid
Traet B�in furtherance or tbs c�npletion ot auch portion ot
Stage 1 or Brookdale Center ss Brookdale contempiates Lt�e�t
it will develop, as hereinafter more luliq specified, Day�on'a
will convey to 8rookdale anid Trsct B, and
W���A3, it is aleo �he desire of ttie pertiea
hereto to provi�e tor an "Oper�eting Agreement" for t2�e oon-
tinuing relatiot�ahip and operatian o! tbe buiidir�ga and
Pacilities that may be built and maintal.ned by 3ears upori
eaid Tract A in consunctioa xith and as a part o!' aaid
Brookdale Center, and
WIiEREAS, it ie Lhe deeire ot' the partiea hereto
presentiy to reduce their underetanding_to dePinitive aoa-
tractual form, and this agreement.superaedea and terminates
all prior agreemente and understandit�gs by sad bettireen the:.
partiee heret�,
NaGT, THEREFORE, IT 28 AGREED A3 FOLLO�WS:
1 atitacr�ea r��reto, abrked ESChiblti "A" snd by
rePerence inade a part hereo! are Victor aruen drawinge SK-1
dated August 28 195g revised Septea�ber 21, 19$9, revS.sed
June 15, 1960, 88-2.dated 3eptember 1959, revised June
i5, 1960, sx-3 aetea August 4, i959, r�vssea August i6, 1959,
reviaed September l, 1959, S1C-4, SK-5 and SK-6 dated August
1959, �te Plan, Stage 2, dated lrlarch 23, 2960, revised
I June 15, 2960 and Prellminary Seara� Property 3ite Plan,
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-4-
t
8tage l, dateQ March 22, 1960, revised dutu 15, 1960, Khich
depict the gene�al pian tor the aonatruction a! Sroolcdale
Center contemplated by Brookdale, both Mith reference to the
buildinge snd etructures propvaed to be located on said Tract
A ar�d thoae proposed to be located on said Traat 8. As ssid
drawings diseloae, the plans !or Broolcasle Center call !or the
development thereo! in stages. The initiei stage, l�ere2.�
reterre¢ to ap "Stage 1", conternpiates developznent at' the
lollowing desaMbed tract af Iand {rhich includea said Tract
A snd part o! ssid Traat B)s
That par� e! the Sout3�we6t �"o! Sect3oa'2, sad
ot the Southesat ot Seetion 3, To�mship 118 North,
Aange 21 Weet, Hennepin County, I+tiinneeota, descrfbed
ae lollo�e: Heginning at a point Sn the Weet line oP
the Southwest a!' aaid 3ection 2, 243.g2 teet -8outb
of the North�rest eorner thereol, tbence ru�ning
N83°14�E, 400,62 leet, thence runnir�g S28�kb'E, �100
reet to a point in tt�e Aorthxeaterly Mght of �r line
of State Higbway i�iumber 100� �hence rwinir�g 352�34 �w
slcng ssia right o! ray line 916.35 leet, thence
running 837�2 aloe�g eaid rigbt o! K�q iine 25
reet, thenee ru�s� a 52a34�w sio� eaid right ot' ray
li�e 201.66 feet, thence deflectit�g to the lett on s
ten chord spirai o! decreastng radiva (apiral sngle
2 degreea) a distauae a! 205 !'eet, theACe detlect
to ttie iert on a �urve hsvtng a rsdsus ot 3014.T9
reet (delta engie 16 degreea 04 minutes) a dis�aace
or 275•11 leet, tbenae p23�30�Y, 213.96 teet, thenae
runnst�g N14a58�V, 430 teet, bbence running Nlla43'�1,
689.90 leet to the begitining o! a tangential curve to
the right havin�g a radius or 460.g4 teet, thence
rurating Nortberly alo�g tJ�e as�e od' tsid ourve to tde
rsght �'T1..S4 teet, tbenae running N28o17'8, �7b.09
i'eet, thence running D163o14�S, 428.3b leet to tbe
point o! Deginning. Far the purpoae o! thia des�rip-
tion the West Iin� o! �ald 8outhxest o! 8ectian 2
ia conaidered to be a due Nortb snd South 2ine,
by the �onstruction �hereon at a raad.mately 300 000 uare
PP
1...
-S-
reet in f�oor area ot buil0ingd {including a store bu3lding
of a i'loor area ot at leeat 12�,Ob0 aquare Peet cOntemplate�
to be construct.ed by $ears on said Tract�A, hereina!'tkr more
Pully reTeri�ed to, and a�wtior department stare, a variety
store. s euper market, a drug store and s�or� s;.��e for otber
typica2 �hopping aertter tenanta, :�on�er.rp2ated to ba conatructed
by 8raokdaie an aai� p) ar� other t'acilltiea as �aare
t'ully eet torth in said Exhtbit "A".
2. Th� propoaed acbedule fcr the development ot'
such portion o! 3tage I oP Brookdale Center se BrookBale
contemplates that i� (ae distinguis3ied !'ran Sears) Kiil develop
is ae rollows:
f
Working drawinga Qompiated,
ready for bid August 1, 2960
Drawings ser.ti out !or bid Auguet �g60
Hide reaelved S�ptember 1960
Award oP construetion contrsct Septe7nber 1960
Co�nmencement o! constructio� September 15, 19�0
Conetruction substantislly
completed reaQy !or
t'urnishir�gs ana lizturi:�g November 1, 1961
Opening De�te �hrch 1, 1g62
Nevertheless, at any time and irom time to time prior to the
avrard by 8roata�le o! the eonatruatior: contract xith reepect
to duch portian ot 8tagt I o! Hreakde:.a Oenter as 8reojadale
ttsel!' (gg diatinguiahed frora �ea� a j�ar develop, HraokdaZe
snay extend the •timea Kithin wti3.ab tbe thea uncaap2eted
por�ior�a ot' Lbe araresaia schedule must be perlorm�d and
postpa�ement oS Lhe timt o�!' per2'oz�arjce o! ar�► portion ot'
-G-
i
esid schedule that is then unperrormed ehali autaaatically
extend for a perio8 of �ime equal to auch postpaaement tlie
time xithin xhich each subeequent portien of the achedule muat
be perforrned, provided, ho�rever, that no porticn a! sai!!
achedule ahaii be poatiponed an aggregdte ot more than 180
daye beyor�d the date oP the perPormance thereot' set lorth in
the t'oregoir�g echedule. In order to e!leet an eztension o!'
eaid schedule or any part thereo! aa hereinbet'ore provided,
Brookdale ehail give 3eara xritten notice ot' the eleation ao
to extend, apecifying tt�e period of eateasion, at lesat 15
days prior to the dete Mhen the item in the sehed�le nezt to
be perforn�d ia due to be pertormed.
3. It le ur�deretood ead agreed thst neitber
Dayton�a nor Brookdale hereby makes any commitment to deveiop
in sny vray eaid Brookdale Center ar a� atage thereol.
However, in the event that Dayton'e falig on or beYore
Septecnber 6, 1960, or auch estended date !or the axard ot
conatruetion contract aa mRy have been elected by 8roolodale
purauant to paragraph 2 hereot', to coavey aaid Traat S to
Brookdale or in the event that Brootodale lails on or belore
September 6 1960, or euch b�ctendee date ror the axard at
construction aontract as enay have beea elected by B�oolodale
pursuant to paregnph 2 hereof, to award a cor�stzva�ion
contract !ar the deveiop�nent and imp�ovement of satd Tract H
in t'urtherance oP the co�pletion o! snch portia�n al Stage 1
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oP 8rookdaie Center sa BrookQa2e cantemp2atee that !t (aa
distinguished 1'raa 3eare) �vill develop, subatan�laily in the
enanner eet forth !n aaid Exhibit "A", Lhie Agreement ahail
oe September 7, Z960, or the elapee of such e�ctenQed date
Por the awarcl ot' aane�ruction c�trsct �te may hnve been
elected by 9roekdaie purauant to par�graph 2 hereof, eeaes
to be obligatory qpon either 3eara or Daytonts, and thereupon
8raokdsle �hs12 torthvrith psy to Seara aa cenaideration tor
the making by 3ears or its proanieeg herein contatned iv�hich
promises Sears bereby agrees aha12 cont3nue irz�vocably in
efPect untii this Agreement ceaaea to be obiigatory upon
Sears as herein providedj, the caeh awa o! #1,000.00 and upoa
euch pay�nent by Brookda2e to Sears thia Agrealnent sl�sll aease
to be obligatory upon Brookdale. It i� lurther under�tood
and agreed that in tbe event of ceaapletioK by Brook�ale oi'
the development of such portion of Stage 1 oP 8rookdale
Center, Brookdaie Center �aay be eapaAded by 8roolada2e beyond
Stage 1, subfeat to the maintessance of a�tie o!' 6� par7dng
atalis for auta�obiles p@r 1000 square faet ot area, aa
provided in p�z�egraph 10 ?�eraaf, tor E�rookdale Center as s
xhole, but that neither Day�on�s nor Brookdaie makes a�r
coamaiLment to ettect any such lutur� eapansion e�d Dayton�a
makee no aomaaitment to construct or Qperste a etore in
Brookdale Center.
4. Zn �t�e event tt�at aas or bet'ore 9eptember 6,
-8-
1gb0, or such e�ctended _date for the arrard o!' ee�nstruction
contract as may have been eleeted by �rookdale pursuant to
paragrapb 2 hereof, Dayton�e eonveya aaid '!'ract 8 to
8roolcdale and Brookdale a�arde a eonstruction aon�raet !or
the developanent and improvement o! eaic! Traet 8, in turther-
ence ot the completion of such portion of Stage 1 0!
Brookdale Center ae Sroolodale contemplates that it (ae
dietinguiehed t'raa 3earsj tti13 deve�op, substantia22y in trie
manner e�et t'orth in �atd E�rhibit "A", Broolo9a2e Ki21 co�aplete
the developaAent o!' such portion o! 8�age 1, in accordar�ee xith
the achedule for the Qevelopnent o!' Stage I ss hereinbefare
specitied, and Sears xill purchase fro� Dayton'e said Traet
A and Dayton's xill execute snd deliver to $ears s Marranty
desd ao�veying asarketabie titie to said Tract A to 3ears,
eub�ect anly to the Soilo�ir�g exceptioua:
(i Building and soriing 1axa, orclinancea, and
3tate and Foedersl regulations, nane o!' xhich aha21
preciutae the conntrncti� and maisitenance on said
TrBCt A oi' a Qep�trtmer►t atora, autaaaativ�e sarvioe
statioa, garden shop, parld.r�g aree,e, and related
lacilltiea.
(ii Ree�rSatioe�s s�latiqg �o usa or Smpa�ov�-
ment of the presaisee not sub�ect to unr�eleaaed
forPeiture, none o�' rhioh �hall reatriet tbe
conetruation and mni Atti78I7C! O[1 aaid Trsct A ot a'
department store, auta�notivr aervice atatian,
gsrden shop, parking areas a� related tscilities.
(lii� Reaervation o! any mirurals or minersl
rights to trie State o! Minneaata.
(ivj Vtility eaaea�ents.
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(v) Reai eetate taxes aaa ir�stdilments of
specis2 aaseaamenta Que and paysbie !a the caiendar
qear 1A Nhich said warraaty deed ia deliverad to
gears and in subaequant cs]endar yeara, Mhich tazes
and Snatallmentie shal� be paid by D�e�yLoo's and
Seara as proM.ded in aubparagrayh (d) oP thie
P�raBr�tPh a.
(vi} Restrictions and encur,�bs�ancea �rith
reapect to eaid Tract J► (including reetrictior�
oi' right o! acceas to State �.tghway No, 100 trara
said Tract Jl) as discloae� in the cerLit�ed eopies
ot Final Gertiriaate isaued in cor�demnation pr oceec�-
inga r�,ica ror re�oro ae Document No. 2q291g8 in
the oftice ef tt�e Regiater of Deede of Hennepin
County, Minnesota, on �arch 3, 1955. st�d aa Docwnent
No 453�59 in tha otfiee ot the Regletrer o!
23tles a! Her�tyepin County, M1.naeao�e, on March 1955
(vii) That certain eaaement t'or inataliation
and maintenance of atarm and sanitar9 ee�+era in
v the la e o ookl Center u oa the
a o r a t V i l g t B r y n p
C Narth 30 reet oP the South 150 feet ot that part
oT LoL 57, Auditor'a BubQivialon No. 216, Henneptn
II County, l�iinneaota, lying Eaat ot the Weat 150 leet
thereol, �hich Qasement 1e aS record in �he oPlice
oP the Aegiater of Deeda o! �er�nepin Cou�ty,
Minnegota, te Docw»ent No. 3101�43,
for the cn�h sum ot 6�0 004 roiiows t�edure shall
ns
be obBerved in consummating such sa��:
�e,} within ten {10) dsys after the a�ard af
such constructi:on contract, Hroolaa�lale aha21 notii�r
3eara in xriting oi the 2'act o! snch a�ard ar�d
thereupo� Dsytan's sha22 deliver to 8eara an
abstract a? t�iti� cartirieQ to s aurz�nt date or a
aertit'icate o!' title snd registered property abs�ract
(includi�rig proper searahes regarding bars3a�uPtciee,
3udgmenta, tax liens and other li�tte) �►ith s�eapect
-10-
I
i
to the titla Lo eaid Traat A.
(b� Sears ahall be allva�s� 30 dsya at�er
reccipt o� aaid abatrsct or aertillcate o! title
and abatract for e�eeina�ion o! said titi� and tbe
mekir�g ot anq ob�ections thereto, said ob�ectiona
to be.made in writing or deemed to be xaived. It
no such ob�ections are made, Seers shail paq to
Dayton'a xithin 45 daye etlter receipt by 8ears of
eaid abaLract or certifieata o! title and abetrsct
said cash awn oP �640,000 erid conLemporaneoualy xith
auoh payment Dayton�s aha21 deliver to Sears the
aforesaid Karrantq deed. If any ob�ections ara ao
l
made, D�yton s shaii be ailoared 60 Qays to malc�
sucb tit�e marketsble Dub�ect to the toregoi�g
i�emi�e8 exceptio�s. PerMing the aorrection ot-�he
title the payment require� to be.made by 3eara to
Dayton�s ehali be poetponad but upon the correetion
ot' the titie snd xithto 10 dayi at'Ler xrittan aotice
by De,qton'e to Sears, 8ears aha?.l pay to DsyLou�s
asid cssh sum o! =640,OQ0, and coatemporaneouely
with sucb pay�+eat Dsyton�e shsii Qeiiver to 9sars
the aforesaid warranty deed.
(c) Conte,aporaaeously xith s8id payment by
8ears to Dayton�s, Sesrs anc] Brookdale shall e�teeute
and deltver to each other coun�erparts oP a� Operating
-11-
pgreement substantiaily in the lormof E�chibit "B"
hereto attaahed.
{d} Dayton'a aha11 pay ail reai estate tazee
and inataiLaente of speoial asaesaraents xith
reapect to sdid Tract A d�e and payabia in the
aaiendar years prior to the caleadar year of aon-
veyance at said Tract A to Seara. 8sars ahaii pey
euch proportton o! the real estate,taaes an0 in-
Btallmente ot specis2 aseeaamenta xith respect to
said Tract A due and payabie in the year of
conveyance of eaid Tract A to Seara as equala the
proportion o� ttu calendar year in which iuch
conveyance is made that elapses atter the day
immedia�ely prlor to the daLe af such conveyance,
and Dayta�'s shall pay euch proport3on or asid real
eetate taues and instslLnents of speciai aaseasments
I as equale the proportiot� of such year xhieb elapaed
o the e uch conve ance. Sesrs Kill
prior t dat of e Y
pay aIi reai estate ta�cea and inatailments o! apeciai
n c to said Tr4ct A Oue and
assess�ae Ls �tith respe t
paqable in calenaar yeare saboequent to the ealendar
year o! conveynnce by D�aytoA'a ot �aid Tract to
8eara.
I! titie to aaid Tract A ia not marlcetabie sub�eet to the
Teregoing iteaiized exceptiona and ie no� made ao xithin b0
-x2-
r�
dsya 2'z►am �he Qate ot' wMtten ob�eations thereto by Seara
ss above provided, the sale of sai0 Tract A by Dayton�a to
Seare etwli not be eonsummatea snd zhis Agreement shall
eease �o be a! atqr further t'orce or elTeet, but i! tit2e �o
aaid Traat A be tound Taarketable anb�ect tio the t'oregoing
i�emized exaeptions or be so aoade Mitbin 60 daye tramd the
date ot' Seare' xritten obfections thereto as above provided,
purchase and sale of said Tract A�hal.l be coneummated ss
bereinbePore provided at the oftiee af Deyton�a at 700
Nicollet Avenue, Minneapolis, IKir�ne�ota. Daytor�'a repreaenta
that to the beat oP !ts lmoivledge an!! be11tS it noN hna
mark�etable title to said Tract A aub�ect only to the exc�p-
�Sona itemi�ed in subparagraphs (i) through (vii} o! this
paragrapb and that it wi11 no� do a�rthing, durin�g tt�e
interv�] o! time between tt�i.s elat�, ar� the d�tte of conveyance
af said �act A to Sesrs ae herein provided ar the date �rhen
lts ab].igation to aom►ey eaid Trac� A to 8ears as herein
provided ceasea, �o attsa� advarselq the a�arketability o!' its
titie to said Tract A. Dayto�'a turttier repreeeata that sald
Trsct A doep npt nox l�ave, atad xili not have at ttu time o!
canneyance thereo! by Dqyton�a to 8eara pursuent to the terma
of thie Agreement, any buildings or LnproWementa thereon srui
that s8id Tract Il is noK zoned and xiil at the ti�e ot
conveyar�ce �hereof by Daytoas�s to �ears pursuant to the terms
ot thie Agreement be toned !or use as cotztemplated by this
_2g_
Agreement. Notwithst.mndit�g the !'oregoing, it ia� agreed that
1n the event tha�
(a) 3eara lorthxith upon reaeipt by St trom
Deyton�s ot' an abatrect oY title aertit'ied to a
aurr�nt date or a ae�Citicate ot title and regiatere8
property abstract �including proper eearches regardiag
bankruptcias, Jadg�oenta, ta�c liens and other liens)
�rith reepect ta the title to aaid Tract A applies to
Titie Insurance Canpany of MtnneEOta, a l�innesota
oorporation, !'or an O�er's Policy to be leaued by
eaid Title Insurance CompanY of Mt�neaota insuring
Seara in tihe event it acquires said Tract A againat
E loas or damage (in aucb a�r►►ount not lesa tt�an
�640,000 ae 3eara may requeat) xhieh Sears sha21
euetain by reasori ot sny de2'ecta, inc2uding thst ot
wnmerketabili�cy, in the ree aimple title ot' aai8
�,'ract A other tt�an the lore6oittg itemized ezaeptions
and the printed exeepti�a Lhen inciuded tn satd
Title Intrursnce Coanper�y ot Mt�eeota'i etandard
lorm ot Amer's Policy a! titie insurance, and
{b) astd Title Tnsuranoe Ca�pany of lyinneaota
shall be unwilling at tt�e time o! tentler by Dsyton'a
tc Seare ot xarranty deed executied by Daytou's in
tavor of �eara to eai� Tract ll pursuant to the
terma hereot, because o2' det'ecta ia the �itle to
-24-
1
said Tract A for Khich 3ears le not re�ponsible,
to SBSUe auch Owner'a Policy eo inBUring Seara
Porthwith upan the recording by Seare of a warrantq
deed Dy DRyton�e to 8eara of 8aid Tract A sa afore-
eaid in the appropriate pub2ic ofPice pr oi'ficeg,
the eale of said Tract A by D�yton'e to Seara ahall not be
consummsted and thie Agreement shall cease to be of ar�y
further torce or ei'rect.
5. Forthwith upon the acquieitian by Sears of
Tract A as atoresaid, 3eare, in furtherance of the completion
of Stage 1 of Broola3ale Center, xill undertakc the con-
etructien and installation on esid Tract A of a department
etore xith an aggregate Tloor area o2' not leea thsn 125,000
square feet nor n,ore than 180,000 equare feet, on two or more
levela, an autoaaotive servl.ce atation with sn aggregate
floor area or not more than �0,000 equare feet and a ground
cavera�ge ot the e,utamotive eervice 8tation building of not
more than 20,000 equare reet, and a12 appropriste site
improvements such as parking lots, paving and lighting,
utilitiee an3 landecaping. All auch canstruction and ln-
stallationa, inaotar as they relate to the exterior ot' auoh
buildingB and the elevation� thergoS and the parking
facilities on said Tz�ct A, ehall.be in general accordance
xith the plan for the development of Tract A in sald 3tage
of Brookdale Center as depieted in sai8 Exhibit "A" and
L
_�5_
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�9s0. �•ard�d a voRStrootl�a s�tttsaN tor tM dr+ntl�s Nri
tr��o�sxt et ?r�tR �llti'M te !s t� lt�a1�M d Qor
.tt�cectl�ra Jt�r�saset Iu�t�O JWw f0. 19�ID, 17 �ad �twht �!s R r
l�pra� Ca�epaay. s tti+mMta rssyeraeLea. sal� sei�ks�ls G�►t�r
f.
:�+�zR.., .�u+ �rwa, l�► tsstbt�A�e .c th. eotyl.tLar .lt�..� �p�tf.. •�r E�=�;:��
`r .Rt acarn at ar�o�osea�� c�a►t�s sst.� co sw ..l� �,ns.�. �.a
!l�stsruas�ros uc�tomt ar W xaearsip� ts+�ta■p2�lss �lst it
F •r
��,.:s ��ra�r�.sa �rd as�s�oela� �wrs�toe�c� !a �i�liDic f y.�,:�
-ro'•.:=t e
:w''�, a `7'f
ti ...Y.•�
io� �e ttirltssr aotltisd that �loc to ta� awaa�tl�at wiei '`t;:.;":`
s
z-
en aa tr� so� sa
�orut t c tra�t �ttt t'3�
L�� �O� �i�p 7 r
i
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S'C�dt t0 �iT���l1l�. �{•k
y�.r .P i iN��ti
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r 1►sT� tlalj �t:l�
ti f•
'Y., ,a3'C���1`�.
i� Ml�aa� 'r: !}i.t:e�4-
�:w�.
'1�. ,�,,�71�y���.
f .Y. .,��1. .:..w,��,,,����""�'��•.
L y�'yA^�+�+�.�}.S
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�OC: CCP.:f� TT��
�iiober� c: �hristian�arc
I
Juae 15� 1961
!IElS88AI/D1IM
To: Sears Tile To De Zasestad Ia lt pa�e (16)
Of The Sears lurc6ase aad Canstrnctioa A=reeme�t
Sears seceived bids oa Aprii 12� 1961 and gave l�raup+l►ndexsaa a letter of
intent on 1�1+ty 20, 1961, aad aignad ths caatrut vith xraus�ilades�oa a tev
days Utar.
Jlrticle 5 of the Sears Agreement pswides tbat Sear• estend tbe time
withio which i� sl�s12 compiete coastsvetioa if 3t l�ss not svazded a eoatract
vitbin six (6) mcaths of tlu avard of the ]Isookdale eontrsct. '!be ]Irookdale
contraet ws avsrded on Septe�eber 26, 1960. T�eretore, March Zb. 1961 vaa
ttu date on rhich &u• �honld bavs �ivsp notificatioa of sn� rxtensioa of
time. Iaasmucb ss they did aot so aotiL7 ua it vould appear t6at tbe� are
still eonmitted to tbe originsl March I, 1962 date !or an opeaia=.
Itecentl� in conversatioas eitb Mr. Skonia� aad M�r. Eacb oE Sears� ve bave
tnafismad thc nade=standia� t�t bot� Seass aa�1 Draokdals are plsnning on
a MarcL 1, 1962 apening.
qilltam aear, Jr.
iiC/lk
aha7.1 t� ax� integral �art ot st�d tn t�armcu�r titith tt� overail
plan wi�h seapect to 8rookdale Center ae depicted in said
Fachib3� "A"`. Seara ehail uae ita best ettorte to conduct
euch ac�pt='u�tion aad inatailation so that tbe builainge
and !'ac�lllties to be eonstrueted by 3sars on aaid Trsat A
in i'urtrierr�a� staBe 1 af Broakaale Ceater Ni,il be aom-
pleted $na �aid Seara �tore and autamotive e�erviee at�tion
xill be open t'or bueineas upon ttu apening dste xith reapect
to tt�at Part or gta8e 1 of the development o! Braokdaie
Center xhich Hrookdale w�dertalaea ta develop, �nt io the
avent tnaL Searo, despite ita best errorta, shall be unable to
award ita aonetruction contrect tor tKe aonstructioA snd
inatalla�tian oP said builaSr�g� an8 faailitiea xithin six
monttua e2�ter the award of the conotructian contract of
Srookdale �vith respect to the part o� St�ge 1 of the devel=
opmen� af B�roakdale Center �ohich 8rookdale tuWertakea to
develop, �a='a m�Y eztsnd the tir� �rithin xhi�h it sbali
aomplete sueh oonctrc�ation and open �ei� 3eara stox�e and
automotiva serviee etation Por busiaess to not later than
September 1, 1962, by Seara gi�ing xritt.en aotioe to
Broola0ale vf its �2ecti�r so to a..-tend, spectlying the
perioa o! extension, xithin 15 �'s auheeQuent to the expir-
stion oP siz montha after tl�e axard o! the 000astructioa
Qo�ntx�tct ot Bz�ookeale xith reapect to the psr� o! 8tage 1
oi' ttve denelapa�ent ot Hroofadale Ceater wh�cb ffirookdale
-16-
s
undertakes to develop. In ttx event �ears so extends such
time, 8roo1ada2e mey extend the opeuing dat.e rith reapeot to
that part of Stage 1 of the deve2opmoen� v!' Braokdale txnter
xhich $roakdaie undertalaee to develop, until the enQ at the
extend�d time Kithin xhich Sears ahsll aomplete �uah aon-
etruction and open such Sears atore and sutamotiva sertrioa
atatioa !or business.
6. Sesrs ahalZ so ao�a�ract its aaid departmeat
atore building as to et�able Brookdal� completeiy to cwer, heat
and air-condition the mail srea ot 8rookdale Center during the
coriatructio�, or st any t3me atter �be completion, o! Stage 1
of 8rookdale Center, and 8roakda2e ehali tiave the right to make
sttach�nente to 3eare' department store buiiding !or such pur-
poaea �ithout an,y obiigstion �o pay Seara a� amount tberefor,
but Se$rs et�l not be obligate!! to contribute to the payme��
at the coats os' so covarit�g eaid ma21 srea or it�atalilt�g there-�
fa heating or air aonditioni�g aquiptaent but at�all be obiigated
to pay 3ts propertionate ehare o1' all incressed costs and
expenses ot maintain�ag tt� "Camuoa= Ares" or the ceatral
maii area o! ssid "Cor�a� Area", as �he asae m�y be, aa
provided in the Operatit�g Agreement attached hexto ae
Exhibit "B", resulting lroaa the aov�eritsg, heat3Ug or air�
conditioning of said a�sli area. 8rookQaie s8reee to repair
at ita sole eapeaee any damagr to Seara' Droper�y caused by
8rooladale maldng attact�roents to Seare departmerit atore
-17-
building in connectiozs xith the aoverirag o!' the mali srea
or the inetallstion of hesting or sir conditioning equipanent
tberein arrd Hroakdale aiso agrees to i�demuily and hoid Sears
har�eaa froao sny lte�a, claims !or damage on accoimt of
pereonai SnJury or in�w�y to property or Norl�en's canpen-
sation ciaims reeuiting trom the meldng of such attaahmentd
to Seare' depsrtment atore buil�ing by Broolals3a.
T. 3ear8 eha21 oOti��Miat it8 aaid Qepartment itot�e
buildit�g eo aa to proviae tor Yuture vertiael expanalon (aa
distinguiahed from !'uture horizontal ezpsnsfon) ttiereol.
1��
3ears shall not expand said departa�ent stare building beyotid
ite initial eize during !be !'irst tive years at'ter the open-
ing thereof for businesa �rithout the pMor x^itten approvai
l
t� ot Brookdaie. After the acpirstiaa of s8id five years
period Seare, xitbout snyone's conaent or appravai, may
expand eai8 department etore buildit�g, provicled tl�at any
expansion thereot beyond Ltie initisl aize thereof sha21 be
substantial�y vertical a�d in Do event shall be oP such a
character e6 to increase tbe rise thereof to a grose tloor
area exceeding 225.000 aqusre !'eet. In the event Sears
conatructs sn sutasaotive aarviae etation oA eaid 'Y'raa� A ln
oonnectior� xith the develop�ent of Stage 1 0! 8roolcdaie
Center ot' s lloor area oi' less than 40,000 aquare leet, it
may at any time xithout prior xritten approvai ot Hrookdale
expand the aise of said sutooaotive aer�riee station to a
C•
-18-
lloor az�ea at' not to euaesd 40,000 aquare fest xith a ground
coverage at the autoraotive aervice st�tiori builc�ing ot not
more tha.n 20,000 aquare leet.
8. �ars ahall inetaii an �uto�n�tia sprink2er
syatem in ita asid dspartme�t store buiitlir.g but aha12 ndt
be required to insta2l euch d sygtem in ita aaid autarrot�ve
service atation if aaid station is at such dietance lro�a tbe
main group of buildi.tigs aoanpriaing 8rookslal� Center sa not
to 8rr��t advereely the rates !or tlre ineur8nce ot� tht
port2on of 8rookdale Center 2ocatsd ontside af said Tract A.
9. ZP Sears requeats 8rooiodale in Kriting tc ao
so at least 30 days prior to the coa,naencement of lnstaiiation
t
by Srookdale or u�ilities Kith respact to tbat p�rt of Stage
1 ot the develop�eot ot 8rool�ie Centar o�taide of Tract A,
Braokdaie sha21 inatal� �11 utilities on aite bo the boundarq
or dasa Tract A sized to acea�nmodata the requiremeats of
Sears xith reapeat to auch utiiitiea ia aoanection �ith
SQara uee aud enJoymeat ot' aal,d Tract A ar�d Seara ehr.21
re�mburse Sroolade�le tor the �dditioa�al coat to 8soofodale at
auch irietaliatioa over the aost xo �ooladale ot instailin�
auch utiZi�iea !c: the ao2e uae ot portiona ot Bz�olodsie
Ceater out�ide ot said Traat J1. �eara aL ite aMU e�ase
ehe�ll inatsll a11 utiltty iinea w� eaid Trsc� A unlesa it
requaats &roofadale in writir�g to do ao, in xhich latter
event Srookdale shail instali aii utiiity lines oa saia
-29-
Tract Jl an� 8ears ahaii reimburse Brooladale !or the cost to
the latter ot suah installa�ion. Al2 utility lines,
including electricai linea, in Hroola0sle Center shsil ba
underground. BrooSodale sgreea to grant h•oan time to ti�e
to Sears, by �rrittan inatrument in lorm acaeptable tor
recording, auch perpetuai easemente !or utiiity lines, througb
ead acroee the portiona o! the lar�da la Brookdal� Center other
�han Tract A xhich are not at the time occupleQ by builQinge
and are not te be occupied by buildir�ge accordir�g to Exhibit
A hereto, sa msy be re8gonably cuceesary in orQer to enabie
3�are to maintain and operate eaid Traat A and ttu buildinge
and facilitiea thereon as provided ia Lhis agreemeat, snd
S�ars agrees Lo grant lran time to time to Brookdale, by
Mritten in$trument in lorm aeceptaDie !or reeordiug, sueh
perpetual eaeemente tor utility lines, through and aeross--.
the portions oT Trac� A t�htch are aot at the time oeeupied
by buildir�ga snd are not to be occnpied by buildinga accorQ-
ing to Sxhibit A hereto, as may be reae�oa�ably neeessary in
arder to eusble Broolalale to maintain snd operate tt�e portion
ot Brookdaie Center outside of aaid Tract A ae a shopping
center.
10. Brooladaie agreea to p�ovide aAd maintaia or
cauae to be prov2ded sn� msiataiue� in the p�srt o!
Brooltdale Center located outside said Tr�ct A parking areas
praviding a parking ratio o! �t least 6� pnrl�ng stails tor
�y
automobiles (of the asme approximate gize, ler�gth and �idth
as the average 295g modela of Amerlcan automobilee) per
1,000 aquare feet of rentable building area in the part
03' BrookdaZe Center locat•ea outeide said Tract A and a
parking ratio ot et least 6� parking atalls tor such
automabiles per 1,000 eQaare feet ot' nonrentable buiidtng
area in the part of Brookdale Center located outsi�e eaid
Tract A, and Sears agreea to provide and maintain on eaid
Tract A parking areae proviQing a parking ratio of at
least 6� parking etalle for euch automobiles per 1,000
equare Peet af building area�in eaid Tract A.
As uBed in this Purchaee and Construction Agreement,
the pbraae "rentaDle building area in the part of Brookdale
Center located autside said Tract A" meana the gro8a build-
ing area of �uch por�iona oT tbe buildinge in ttse part of
Brookdale Center l�cated autaide sald Tract�A (other than
sutomotive eervice atati�ns as�d garden ahopa located in euch
part} ae are at the particular time elther leaaet] under
leases pureuant to which reat ia then accruirig, ar completed
and ofPerei� for rent but not y�et rented; Lhe phrase "nanrent-
able building area !.n the part ef Brookdele Center located
outeide said Tract A" aieane the groaa buiidir�g srea e! suah
buiidings tn the part ot Eraoladale Center lxated outaide
said Tract A(other than autoaaotive aervice otatiot�e and
garden Bhops located in such part) ae are not rented and not
-21-
o "1
J
offereQ in.xhole or la part for rent an4 as are at tha
partiaular time compieted and etther open in xhole or in
psrt !or Ausiaees to ttae public or, i! not to be open in
whole or in pe�rt !or bualneas to the pabila, rea�r tor
occupaacq; and the phraee "buiidiag �a in ssid Tract A"
meane the g�roas buildir�g area o! au�h buildinge in aaid Tra�t
1l (other Lban ttie autwnotive eervice axaticn ar�d garden ahopa
lacated therein) sa are at the par�tiaular time completed and
either opea in �hole or in part !or businesa to tht public
or, if not to be open in rhole or in psrt !or businesa to
the pub3lc, ready for oceupancy. For the purpoae ot thie
Purcha�e s� C�nstruation Jlgreement the Qo�atruetion ot an
addition La a aanpieted building sl�aii not render raid b�uiid-
ir�g incomplete or unreaqy !or oacuparscy durit�g the period ot
such cor�structian but �he area ot�, the addition ta auch�buiid-
Sng sha11 not be lncluded in the groaa building area thereo!
for the purpoaes of thie puxchase and Cot�atructio� 1lgreement
unt12 such additiar� has been eoanpleted and is either open lA
Mhple or tn petrt !or bueineea to the publia, or, i!' not to
ba open in whole or in part !or basipeae to the public,
reaQq tor accypancy. As uaod in tt�is paragrspb 10, the
phrase "grosa bistiQing area" means tba entire tloar ares ot
tt�e enclosed �pae� ot eaeh level oP tt�e partieuiar building
exclueive ot lloar area oonstitutiAg part pt tbe "Cammoa
rererrea ta sA Seatla� 1.1 01' the form ot OptrBtir�g
-22-
Agreement attached as Exhibl.t "B" hereto and exclusive at floor
area ot' any penthouse on the root houeit� heating, air-
conditioning or ventileting equipment.
In th� eve�t of expansion by Seara oS its buildings
on said Trect A or by Brookdale 'or anqone elae aP its build-
ings located in the part of Brookdale Center iocated outeide
said Traet A, 9eara, Brookdale or such other person, ae the
case may be, ehall be given credit, in determining whether it
is maintainit�g or causing to be maintained the aforesaid
ratlo of 6� parking etalls per 1,000 square Peet of building
area, rentable building area, or nonrentable bui2ding area,
as the caee may be, !'or any excese over auch ratio that
exiate with reepect to the parking arese on itg property in
Brookdale Center immediately prior to such expanalon.��The�
maintenance oT the aforesaid minimum parking ratios shall be
excused to the eztent that maintenance thereof ie rendered
impossible becau�e oP condemnation oS land in Broakdale
Center.
11. Sears ehall maintain and operate s81d depart-
ment store building ae a department etore, and in no other
manner, for e period of thir�y-tive yeara traan the date xhen
Seare� said Braokdale Center departn�ent etore firat openB
for bu�ine�e, but Seara may carry an portiane o1' ita operatione
in Brookdale Center through licenBeee, �ea8eee end
eonaessionaires, and through corporations in �hich 9eare awns
-23-
a maJority o! the votiaig stock �hereinal�er called a":Dssrs-
afPiliete"). Sears shsil aot aanstruct, meintain or operate
another at' ita "A" type departanrnt etorea xithin s radius
ox Pive milea ot Hrookdale Center, so loqg as it, its
euccessors or aaaigrie, is obligated her�eunder to operate and
maint8ln said departa,ent etore at Broo]adale Center, but may
conetruct, maintain and operate one o! its atores o! s
a►aximwn s�ze ot 38 ,000 equare feet aith3,r� eaid tive mile
radius. Sears shall aot buiid or construct tor othere or
ellaw t� be buiit or cenetruote� eny building or.improvemente
on gaid Tract A other than said dep�artment store buiiding,
esid automotive service•atetion and such iocidentai �ma11
t buliQinga in harmor�rtrlth the overaii plan xith reapeet to
Brookdale Center aa Scara ahall construat to lac321tate
sales by it, ita licenaees, leesee�, aAd conceaaionaries, and
Sears a�Piliatea te the public, and S+eara shall not subleeae
or permit the use ot� daiQ Tract A tor a�r purpoae ea�cept those
hereinbet'ore referred to.
12. Neither Dayton' e nor Broolodale �,alces a�r
repreaentations to Seare as to eoil aonditioua, adequaey o!
li11, xater tablea or ett,er conditioz�a at'tectir�g eonatruction,
xith respect to aaid Tract A.
x3 Brco�adsle :r�d Sears shall not deviate sub-
gtantisily 2'rom their reapeetive linai plans and apecilias-
tione coticernir�g their resp�ctive imprav�meata o! partiana
-24-
ot Brookdale Center to be e!'t'soteQ la completion ot 8tage 1
of Brookdale Center.
14. Seara Mill accord to Brookdale !or a period ot
30 daya the right ot firet retusa2 to purct,ase Traet A ar�
the improvements and lacilitiee thereon on the satae terms
berore aellirig eaid Tract A to seyone o�her than a� 3ears
sTfiliate, or other than the trueteea ot a protit sharing
plan or penalon tund or similar tund of phlcb amploy�eea or
fozmer etnployees ot 3ears and their lamiliee are the prir�cipal
benePiciariee {hereina2'ter called "Sears trustees"), or other
than one who immediately therea!'ter Zeaeee sald Tract A and
the impravczaente axid t'acilities thereon back �o Seare urider a
lesee which provides that 3ears ahail operate a dapartnKnt
etore snd autamotive service ststion on said Tract A; and in
the event o? any such sale an8 lense-back an� a?ter termina-
tion oP the leaae ot said Tract A ta Sears, Brookdale shail
have tbe right of lirat relusal to purchaae said Tract A anQ
the improvernents and t'aeili�ies tbereon on the eame terme
beSere the then awaer of saie Tract A aeile the same ta
anyor�e other than 9eara, a 5eara afriliate or Seara trustees,
and shsli sleo hsve the rigbt ot Mrat ret�al to laase
Tract A and the improve�,oenta an0 lsailities thereon o� the
aame terms belore the then oamer ot said Trac� leasea the
aaa,e to an�yone other than 8eara or a 3eara a2'fi2iatie.
i -25-
l
15. Brookdale and 3eare aha.11 eacb at its aan
expense, insure all b�uildinga and improvements located on
ite land in Brookdale CenLer agalnat tire and other caeusltiea
within the broad torm of extended coverage in anaounts equsl
to at leaet 80� ot tbe insurable vaiue, which xi21 not mske
the ir�sured a co-i�eurer, provided, hawever, the�t each party
sh�ll have the righti to eeif-ineure against Tire and casualty
with rESpect to iLa buildinga and improvemer�ta located in
Braokdale Center. arooltdale and Sears each agrees that in
the event or aa�e to or destructicn oP ar�► ot the bt�.ldinga
or improvements on ite said land in Hrookdale Center dae to
an,y of the hazards xhiah car� be aovered by the inaura�ce
provided for in tbe i�mediately preeedi� sentenct, it xil1;
�rith a11 due diligepce, repair'or reconatruat sueb bui2dir�g8
and impravemente eo that they �rill De in at leaet 8�•good
coriditlon and ot at least equai insurabie value as berore the
daniage or deatruc�ion. Brookdale and 9eara esch hereby
waives aAd releases any and all elaima it �aey at any ti� tssae
againBt the other for damagra arising aut at the t7e�mag� to
or de8truction of ite land 1n Broakdale Oenter or ttte build-
ir�gs or l.mprovementa thereon or the contents ttreraof asuaed
by fire or other casualty, �tiich loss ronid be aevered bl a
atandard t'ire snd eatended riak inauranae policy. t�hetlur
or not euch damage or destruetion be the result o2'szegligcnce
L
-26-
r
i
on the part o! either Hrookdale or 3eara, or its agenta,
servanta, or empioyee6, or o!' !'ailure ot either Brookdale or
Sears to ob8erve any aontractual ab�igation that it may a�e
to the other by reaaon o!' any agreeraent betweea Lhem, it
being the urderatanding and agreement of Brooloaale 4r�d 9ear8
that eech oP tt�em shall dt its oam expense aarry Sts oKn
insurance �gainet euch r3ska, that eacb oP tbem ahall look to
its in8uranee !'or inde�anity agsinst ar�y such damege, and that
neither aP tbem ehail hsve any intereat in the ather'e
insurance or the proceeds thereot.
16. Brookdale and Sears each agrees to indemnity
the other and hold the other harm2eaa lroon any liabilitq far
damages to any pereon or proper�y oceurMng upan the
indemnitor�e land and premisee in Hroolodale Center ana traao
any expen8e on account ot atiy claim of euch 2iability.
17. Each pe►rty hereto hereby repreeenta and
warrants �o the other parties hereto as aa induae�aent to
enter �nto the Agreeraent that it haa t�ot dealt xith or
negotiated aith or through any brolcer tor o�r rlth respect to
any of the eubJect matter o! thia Agree�ent snd that no
brolaerage is imrolved ia this ligreement or tha sublect mntter
thereaf.
18. Tbe tin,e �itbin ahich ar�l o!' the partiea
hereto ahall be required to perPorin ar.y act or acts hereu�der-
ahall be extended to the qttent that the performarsce ot
_27_
1
auch act or acta shall be ur�avoidably delayed by Acts of GoQ,
tire, Mind$torni, llood, exploaion, aollapse o!' struatur�$,
riot, war, civil commotion, lebor atriloes or work stoppages
due to Inbor disputee (whether pri.mary or secondary),
lnabiiity to obtsin or uee necessary matrrisio due tc
governmental laas, regu2atiotis or reatriction�, or inabiiity
to obtain de3ivery o! msteMala due to Sabor atrikes or work
atoppagee involving euppitera or carriera; provided that the
party entitled to euch extensilon shall give written aotice
to the other part3eo of itie claim ot rSght to auch extensiort
within 30 day8 at'Ler euch right �hereto ehall accrue, or euah
right ahail be deemed xaived. For the purpoae o2' eomputing
the time ivithin xhich aaid notice must be
given, the right_
Bhall be deemed to accrue tran the time tbe party asserting
said right shali reeelve notice or knos�ledga pt the happening
ot any of the enumerated aingle events cauaing delaq such ae
Acts o2' aod, lire, etc., or the eo�naemeat ot' ar�q ot' the
enumerated causea or a�i8y which eontit1us ibr peMod o! t! me,
euch ae 2abor strtkes, etc. Upan the terminetiori of such
cau�e ot' delay, the party aseertir�g the rlght shail pro�aptly
serve upan the other partieA a turther Aotiae apecil�rir�g the
tatsi lengtb ot tlme !or xhich it eateedec! ite ciaim.
19. Srooloda]e sr�d I)ayto��a +esch msy saaign its
intereet under this agreement and i� and to TracLa A and H
to anq subeidiary or atfiliate of eitt�er Braolodale or
-28-
e
f
D�yton�s, or to ar�y a�ne elee, provided, hoKever, that 3! the
proposed aeeignee is other than a subeidfary or aTi'iliate of
either Hrookda2e or D�aytonte and it' 8 department store of
Jf Dayton�e ie not then located in Brookdale Center, euch
asstgnment ahali be made only xith the rrritten approval o!'
K' Seare (xhicb alzaii no� unreaeor�abiy be xithheld and ehaiZ be
�given or refueed rithia SO days aPter reques� therePor is
aade to it).
20. Ali notices, notificationa snd requeste
provided for herein by any party hereta to ar�g other party
hereto aha11 be in writir�g and shall be deemed to h�tve been
i given or made �rhen deposited in the Unitea 3tates n�i2 as
poatage prepaid regietered maii sddreeaed in the c8ae of
Dayton�8 or Brookdale to T00 Nicollet llvenue, Miruseapolle
2, Minnesota, and 1n the case of 3eara to East Cangreas
Parkway, Chiaago 5, I111noi8, At�entioa: Property Manager,
or to euch ottier addresa ss me�q t'rom time �o time be desig-
nated by ar�r party hereto to tht other parties hereto as itg
mailing address tor tbe purpoee ot' thie Jlgreement.
21. A31 ot�the provialans of thia Agreement
eacept tbe provisione ot' pnra6s�aph 14 hereof shali cease �o
be ot' eny turther lorce or et'tect at t2u eapiratiot� ot 35
years trama the �ate rben Sears aaid 8raolodale Center
department store tirst opens !or busi�esn.
-29-
f
f''
22. graph 14 ot triie Agreen�ent_ahaii continae
ti��-`•'�
in elfect�duri such �rio� prior to the t�cpiration o! 50
years frma tne date xhen 3esra� sa Broolaaale Center depart
ment store !'irat opene !or buaineea, as Broakdaie. Dayton�s
or a corporation mnsority o! the voting atock of Mhich is
awned by eitt�er Brookdale or De�yton r, a�ons any porLion ot
eaid Traat B.
23. The tarras and provisions ot thie Agreement shali
be binQing apon snd lnure ta the benelit o! tihe reapeetit►e
partiee hereto �nd tbeir suaceaeora and asaigr�a a�d ahall run
xith the land, and the terme and proviaion� o! tIu Opera�ing
Agreement attached hereto ana mdrked 85chibit "B", khen esecu-
ted by the reapective partiee tt�ereto, sha31 be binding upon
and inure to tbe benefit o!' the respec�ive psrties there�o snd
their succeeaors and assigna and ehail rua xith the land.
IN WITNEgg 1�iERE�, the parties hereLo hav� caueed
thia Agreement to be eaecuted by�their respeetiv�e orrs��rs
and their respe�tive corporete eeslr to be t�sreunto atti�ced
pureuant to the authority ot tlutr respeetite Bcsrds of
Directors, es ot the aa,q and year lira� abav� t�rittea.
In Presence ot:
TI� pAY'P0�1 COQ�JINY
t: c r a. liX.te.. ✓J+fd
Zt��Pi`eil�dellt
�d ��'�'r"'`'c-5..��
Ita� c�
Corperatr �eal.
-30-
l
In Preaerice o!:
BROOImALE CEN'1'F.�R, INC.
$1► 4� �1���
Ite Preeident
,��.1��_,''`�.
w 1 e /l.� �Qd J j
vrv
w,
r,
a
.t: r. r
dS 1
Corporate 9es2
j J
.,�r:
a�'.A� �iX Ci
j► �rv�pvtc
Its 1Tlee presi�eat
��e�''a�,:.,e-i .-J��' And �.�r' an.syw,s,
=sj ss�atst
Zt's�3eCi'e�82'y
.r K
Corporate Seal
:�.s��'.•
�ti
3TATE MII�SOTA y
ae "�:=;'^•:ti
COUNT'Y O�F H��tI�EPIN�
r t a_�� day ot 19fi�, before me appeared
!�i^ �.�+•.r ana, U u
to me� erso
P Y xho. be�ng�y aworn aay
that they are th �i`aent ar�d th S�retary o! Th Daytion
Comper�y, a oorporation, thst the se�il afrixed to the toregotng
instrument ia the corporate aeal o! aaid aerperstion, atid that
said inatrum�nt xas e�cut►ed in beha2f ot satd corporatiott by
authari y of it� Board,Qt Directora; ar�d that aai,d
�ti V'� �T and 1 f G�.
ac�rnow e e ea ns •rumen to be e�, ree ac an ee
eaid corporatioa. r r.
A�ary �'ub�a, �enriep�"�oun y�n.
I+�r Camosseias �cptrae J y
J.. .-w :�'�.'�es- `is-:.
at =J ".�:�L�
_3l_
N
3TATE Q�F l�INNESOTA
sa
COUNTY 0�+ �PII�
this dey ot 196,Q, �bei'o� tne
appeared �l and _t!• IP. Q/;��+��
to me persona y oMri, xno, �e� n g y me �I p �warn, d�G d 8 y
that they are the preside»t and the Secretar�r of B�rookdale
Center, Inc., a corporation, thst the eeai aftYxed to the
Poregoir�g instrument Se the corporste seal o! aaid oorporatioa,
and that esie inetrument Mas e�ceanted in behalf ot said corpar-
ation b utho t a!' ite Boar� oP Di c or d that saiQ
.�dg`ed sa�� be"� �r'e�ac an ee� o
ac ow
said aorporation.
r,�A�r> •�Kt_
Ao�ary fi.�33�c, �ennep n oun y tui�
I�y Co�iaaioa Explres �1�„Ls
L v
`•y:. j'
f.
M
�M
STATE QF ILLINOIS
aa
i COiJNTX QF COOK
an tbss 3�aC a4y vr ..T�• ti•� lg�o berore me
P P e a r e d M. M i a� e a n d J- I 1►
to �ae peraoaa� I y T mown,�o, be3 by�ags� worn, di3 say
h�
that they are �he Vice preeident and t w c ary o!' 8eare
Roebuck and Co., n corporation, that the seal sPfixed to the
forego�ng instrument is the aarporate seal af aaid corpora-
tion, and that eaid inatrmnent xaa exeeuted in behalt of satd
corporatian oy sutharity ot' ita Board oi' D3rectors; and tt�t
said G. M. ME1'CALh and -'.�:L• C�t��r
scknow e ge seiT'i�rwaeat�o be �'ie"�ree acti an e o
aaid ca aration.
�P
H 1
[.t.a,I J�.
Ao�ary f�Sic, oa oun�ty no e
.ti:�.:..
I�i Co�misaioa S�cp3.res s
ri.
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ttttl[i� ilCTION 1.4 !�R S
HNIXTiNA1(!� (1�OOl�ti) iL67i0� l.s �ilCi i
ItAI1RLtuNCS Qd�Uts) Qsf.TI�t l.�
AAYNiN? S? 6i%1�8
oae�t�t AYt� cwirucc stcTlo�l 1.7 l4CS 12
�xn�ne ar w►zmcx�xa� u�cs u
sacr=au� �.s racz u
cusra� T�a�c ur:as :t:
pAW�FC wVAiI�82.B P�
QTBi�f.tRQ BsRI�t 3.1 r4CE li
�LOfIEt l�1a1tG
LICE118E �ERS !0 s� �Cllfl�t 4.1 t� 17
tlatlolBi�D iiQI01T �.2 t�GR it
tlGfTi �DV=R1TtDiG �t1lt7.t
tICN SiiZRICTIOEti 6tCPl0� f.l
�i 0� Rit►lt4f �t1I0i rI
ttCSO� i.! HG6 19
f0'tIR A:ZICIi RI
fYCY20M T.1 Lti I!
?i�l[ C! �tat�ft uYIQi nII
acna �.i r� to
�a�as�r aim asauxs ameu a
acrza �a �cs io
development of Broolodale Gnur is Deing undertakea in the
manner contempleted by said Purcnase and Corutruction
Agreement,
NOW, THEAEFORE, in aoniiderstion of the aovenant�
and conditior�s herein contained on the part ot' each party
to be obeerved and perTonaed, Broolcdsle an0 Ssara do hereby
agree as folloMrs:
AATICLE I
The Common Area
Seotion 1.1. The term "Camnon Area'� means the
entire area desigruted Tor co�maon use or benetit Nithin
the outar property iimits ot' Brooladale Center as it exiats
1
trom Lime to tirae, includit�g, but not by ray of limit�tion,
ali parldng lots, landscaped and vacant Rr�aa. paasagsa tor
trucks uW autanobil�a, ar�axays, roada, Malka, ourba,
corridors, and mall and aourt areas, togetMr nith public
laciiitie� sueh a• �+aaAroom�, toileLi, dri�fking lountatn�,
public •tair�, raaips, sheiter� and bus �t.�tions, with
tacil3ties aDpurter�ant to eaoh. The Camnon Are� shsil not
include truek loading doalas, Ooinrnsreiai aresa inteneea for
renting, a��th� �arae �hall lxist tro� tima t0 Lia�e, area�"
Mithin ttro buiiditigs loaated ott Sear�' laeb, or road� nithin
the outer aroperty li�oiLe of Broolcdsle 0enter while mtintainsd
by pubiie authority. The Camnon Arts nn�r �xps�ed, eon-
trsot�Q, pr ahar�ged lrom time to tiiae xith respeat to the
_Q_
!�`V� ff1��� 1��
I
sreinbefors P�d�O a�
ha Fart ot Brookdale Cer�ter ownea �pioyee parkin6 sPeclfied
ite suaaessors cr s�sign� ne=•eby grants to Bears tos'
rea to ae "Brookdale iand"), and tter's of1'laers, e�P1oY°ee,
portion of the Com�►on Are� nceasionsires anlf cu�toraera
ong as the mininnun parldt�g �rstios buaituaa purP�sea �21 portion�
saia Purchnse sna Constiuotldn i prpa time tfl ti��+ l���
aub�act to such rulee a»d
�als ehall have authoMty to ir3q,ng reatriotion�, S�as's
yns with reepeet to the operatioa vs� o! the latt�r �nd th�
se of the Cammon Ilrea as Sears :ssees, �ieensees, frn►itaes,
8esrs ■ha21 �ot withhoid it� s�S for the use of the otfieer�,
es and regulationa propos+�d by ooncessior�aires and custon+ert
r as are custop+ary in larga a-exeiusive right to uae 1'�'
�en estabilehed rrith respsat ta of the Ca�roon 1�'ei, as �it
•SouthOale Center" locstea in �sd ou Seara' iand. P�►ide0
nd,3eare �ach agre�s to abide to p�evant ths �oQuisition
at msy be eo agt�eed upon ia th� �t righte in and to said Common
•rcDerty ae�d business iA time to ti�ae t�P�'il7►
e shall require, �Y +�DP�P='iaLe m Area iocated on tMir
a�e with re�pecti to apace lA e boundsry �►�M+
its lesse�t shaii �bide b�r �rpose ss aW► b� aP�'OD��t
icM op�raLion and oonduot ot sned an sviatsas ar a di�t���•
_�es� in 8rooke�ie Cent,�r. tbl,s eeotion 1.� graatMO to v�e
to suah rulei a�d regulations �.lons at tha Coa�no� Ilr��•
co�oa llrsa ss msy D. agre•e
i
Brookdal• and 9ears promptly at'ter the axecutioa aud deliwry
ot ti�is Operatis�g Agreement sha12 enter into an �pprppriat�
��emeoL ia xriting�i� reoordabie torm xhereby BroolMale
xi13 cont'irm the right grsnted by it in thi� 8eotion l.� to
use, Por Che period ot 35 yeare froro the date xhea 8eara�
Brookda2e Ceatar department �tore hereinalter referred to
liret open� for Dusines�, Lhe portion� of the Cammon Itrsa,
as it exista fraa time to time, locatad on 8roo1o�a1� lana
and whereby Sears xiil aonPirm Lhe right grantad by it 1A
thss Sectton 1.3 to use, tor such 35 yaar period, the pot�tiocu
oP the Com�aon Area, as it euiste lroro time to time, iooated
on Sears' iand.
3ection 2.4. The oosts and expenaes of maintalaing
tha Co�nmozs Area or the eentral mall are� of the Comaon •area,
ae the aaee may be, sha12 ir�cluds, buti aot by xsy ot� li�it�•
tio�, all aoats and expenses of operating, repairing, 1lght-
ing, hedting, wster, airaonditionit�g,0laanir�g,psinting,laanr-
ing, removing loe, sno�v and debris, yolioirig and sil eo�t�
and exparues (otMr Lt�an those o! t capital nature) o!
replaeeeoeAt ot qving, onrb�, xaiks. landseapie�g and drait�e
aed lightit� !'aoilitl�• ot the Camso� �a ar tM o��trai
�a11 �rea o! the Co�„oa Area, as tbe ease may b�, buL shali
not inoluae real estate taxea, rpeciai aase��,nent� or depr�oia_
Lian on building� or permaneat f�nprovements xith respeot to
tha Coauaon Area or the eentrai mali �rea o! the Coamo� Area,
-5-
as the case n�y W.
Seo�lon 1.5. �tii and s�cept a� S�ar� shtli
-otherwise eleat as hereinatter providea, Brooloaai� shtii
maintain aed operatt the antire Caanon �rea, includit� the
portian thsreof ioaatad on 9eara' land ana shRil provida
�ani�oriai and meahaniaa2 servios�, a�aloe rey,airs, maintain
and pay t'or utilitiea xiLh r�syect Lo tbe Caaa�em Ar�s
(promptiq rei�obur�ing 8ears tor ali paymant� paid aityatlr b�
Seara Lo the auDpiiers o! suoh utiliti�s xith re�peat to the
Ca�on Area tor �ach uLilitie0 turnisheQ xhile Brookda�s
maintnine anQ operates the entire Cameon Area), an0 shali
otherKise administer at�e suDervire the entire Camnon �rsa.
Ia sueh �venL Seara �he�li b�ar �neb proportson ot the oast and
expsnse ineurre4 bY Hrooladal� at any partieular tio�e in �ain-
tsining Lt�e entit� Oan�aon Atra a� eQwi�. the proporttoA rl�lah
tt�s bull8li� ir�i oa 8aari�' l�ad beat�a 'at �ueh tim� to tM
�trg,�te ot ttr r�ataDi� Datidi�os area e� 8roo1a3a1� laAe,
the poru�entable building area an BroWodsle 2a�, aeW the
buiiding area on 9ears' lan0.
As used in this Operatte�g Aar�ement. the ptu��e
"buildirsg area on Sesri� lana" mean� the grosi buildietg atra
o! suoh buileirigs o� �aara� 1an6 {oLher tlun the autaaotive
�arvice station ancl gardan �hops looattd Ct�erson) s• st�e at
th� partioular tiuN eompi�t�e and •ither op�n in whole ar ia
part !or businese to the puDlic or, i! not to be opsn in xhole
-6-
or ia part for buainess to tM pubiia, reaQy for oaauparrcy;
the phrase "rentabie building area on Broolodale laM" tieatui
the groa� bnllding usa ot aucb portions o! the buiidings o�
Brookdaie land (other than autaraotive �ervioe •tatioc� arr0
garOen shop� loosted thereon) as are at the particulu time
cither leaeed tu�der lease� pur�uant to xhich rent is tben
accruing, or eompleted and olPerea for rent but not yet rentad;
and the phrase "nonrentabl� building srea on Broolodale lan0"
means the groes building area ot' suoh buildings on Brookdal�
land (other than automotive sarvics �tistions add garden shops
lxated thereon) as are not rented and not oftered in xhoie or
in part Por rent �nd aa are at tt�e partieular time ec►mpletea
and either open in xhoie or in part tor buriness to the
pubiic or, it Aot to be open ia xl�ole or in pirt !or bu�i�as
to.the publio, ready !or ooeupaney, aor tt�e yurpo�e ot �his
Operating Agreeme�t the oo�utruatioa o! an �4diLion to a
oompletea butldir�g shsll not render �aiQ buildtrig inoao�i�te
or unready Por ocoupnncy during tM pariod ot suah aonstruc-
tion but the arss oP the additioa tio �uoh buildin� �t�all not
be ineiuded in the gros• buiiQing area Lheread' !or the pur-
poass ot this Operatit�g Agre�mtnt until such adaition bas btsn
oompleted and is eitMr op�o la rhoi� or in psrt !or bwiasss
to the publio, or, ii not to M op�n in �rhol� or ia part !o�
bueines• to tt�e pnbilo, ready !or ooeupaACy. As weQ in thi•
Section 1.3, the phras� "�ros� builairig area" m�an� the entire
-7-
floor area o! the enc2osed spaoe of esoh level ot the
partiaular buiiding eaolusive of tloor trea a�stituting part
of the Common Ares and exainsive ot tloor srea o! ae�y pent-
houte on the roof housing heating, airoonditioziing or
ventilating sQuippent.
3eotion 1.6. Notwithatanding tbe toregoing, Sears
may at any Lime and t'rao time to time elect to operate and
maintaia at its am expenae the porbion ot' the Coa�aon Area
locat�8 on Ssars' 1and, oaomencing at a apecifi�d date at the
begitiu�irig o! a calendar monbh (not ies� tt�an 60 days �ubse-
quent to the date o! delivery ot a written notice of euch
election by 8ears to Brooladale), snd Sn the event of any suoh
electior► by Sears, tha latter, eonanencing on suoh apeeilled
Cate, ahall so operat� and maintairi tha portion o! Lhe Cammon�
Area iocated on Saars' isc�d, and shsii aiso besr suoh propor-
tion ot the cost ancl expense ineurred by Brookdair at a�r
particular time in maintaining tit� aentral mal7� sres of
8rool�ale C��ter, it�oludin� oentrai mall taotliti�s auah ss
publlc tiallete, Mashrooana tad drinldng loantains and tM
b�ating anQ aircaWitiociin6 ot tM a�ntral ma11 area, a�
.Qnai. the prbportioe� Mhioh Lb� builait�g atra on a.ars� iapa
bsars at euoh time to tt�e aggregate o! tlx reAtabie buiidirig
area ors Barrootodale land, ZAe nonr�ntab2� building aras on
Hrookdale land, and tM Duilding area oa Sears� 2ae�d. Ib
�uch event:
(aj !f the ratlo ot the daily average number
of parldng atails on Sesr�' land to the dailr
average t�waDer ot paridng •tails lA all ot
Brookdais Center (inoluQing 3ears' lat�), QuMng
any period ot time xhen the ratio ot the buildir�g
aree on 8ear�' aand to ths aggragate ot the rentabie
building area oa Brookdale land, the nonraatable
bulldiug area on B�roola0ale land, and the builAing
area ot� Sears' laed ramains the same, is ies� ttsar�
the ratio ot tt�e buliaing ares o� Sears� land to Lbe
aggregate of the t�entabie Duiiding area on Brookdale
land, Lhe nonrentabie baiidie�g area oa BroolMale
laad, and thf buiiding area oa Sears� iand during'
�uch peMod ot time, then $ears shaii pay to Brookdale,
in addiLion to !ta al�re ot tl�e ooat sn0 �xpeaee ot
msint�ini�g t1u csntral mali ana o! 8rookdsie Ceuter
auring �uah p�rioa ot tinN, ttu actua� oost (inoiuQiu�
Lhe ezpense ot iighting, parking 2ot iaadsespiag,
�na�r xmoval, and aii o�her parkir�g lot mtit�tieoanoa
e�cpenie) during suoh perlod ot time to $roWcdale o!
maintainitig ttnt rnm►b�r ot par1�� stali� loaatea
ip Sroolodale C�nter ont�iae o! $sas�' larK! xhiah
xh�n add�d to �uoh daii�r swretg� rnarb�r ot parkitag
�tiali� an �s�rt' lane �urit� �txsb Derlod o! ti�
resultr in a�um bearirg tt,e s�me ratio to the dasiy
L.
—9—
r�rult�IT �eq+
s
average nwaber of parking atslle in a11 0!' 8roolodale
Center (including 8ears' iand) during auah period
o! time as the ratio xhieh ttie buildin�g araa an
Sears� iand bears to the aggregate o! the rentabie'
buliding area cm Brookdale Iae�d, Lhe nonrentable
buiiding ares on Brookdale land,�and the builaiag
aren on 9eare' isad during euch peMod o! time, Dut
(b) i! the ratio o! the aaily average awaber
ot parldr�g stalis on geara' lan� to the dai�,}r average
aumber o! parking stalis in a11 ot 8rookdale Center
(including Sears land), auri�g atqr period of t].�oe
Mhen the ratio oP the Duliding area on Sears' lsnd
to the aggregate of tt,e rentable building arts on
Brookdale land, the t�onr�ntab2� building araa oa
Broolcdale iaad, and Lhe buiiding ar�a on Sears' 1aM
remnir�a tbe �a�oe, is more tl�an the ratio ot the
buiiding at�a cn 3eare' la»d to the aggregate of the
rentsble building area on Srookdale land, th�
aonreatable building �rsa on Broakdsie laad and the
Duilding area on $earr' land during �uah ptriod of ti,m�,
th�n 8eara ■hal2 ba ere4itea in eslou2ati� Sta at�ar�
o! the aost snd acpeas� o! maintaining the aentral
sa12 srea ot 8�roolodtie Center duMng �uch period o!
time xith the satual aost (incluQing the expens� o!
-10.
CVI_.iIOJT ��l9
t
lighting, parking lot lsadsc�ping, snox rea�oval, and
ail othe: perling lot maintenunce e�pense) duMng
auoh pe�tod ot time to Seara o!' main�airiit�g that number
of psrktng ttall� loaatsd o� Sear�' land xhiCh Mhen
subtraated lroaa suah daily average nnmber o! psrkin�
atalis locatea on 3ears' lsr� duririg such period o!
time reaulte ia a sun� besring tha same ratio to the
daily average numbor o! parking etalls in ali o!
Brookdaie Center (includir.g 3Rars� lans) during eaoh
period of time ae the rstto xhich the bc�.tlding ar+a
on Sears� land beara to the �ggregate o! the rentable
buildirsg ares on Srookdale land, the nonrentabie bui1G-
1
ing area on 8rookdale lat�d, t:� tt�e buiidicig area on
Sears' land during sucb period o! tiaie.
In order Lo permit the calculatilon oP the charges or oredits
ta 8ears on aaoount of parkit�g stall ratior ae sforesaid a�d
ia o�er to sagregete tbe oorta aad ezpenses iiscurrea b�
8rookdale in maintaini� the e�ntral mtli area of 8roolo�al�
Center, ao iong aa Sear� operates amd mair�tains aL it� o�
expense the portion oP the Caamwn Area icast�a oa 8sara�
1anA, the aoat� and �zpsnsss to 8rookaala o! ap�rating aad
main�atiaing the �arkitsg stalis loested in Brooladale Ceater
outaide ot 8ears' iand �hall be loeqL �epara� tras tbe
ooeti snd e�cperu�es to �rook�ie af operatin6 aaQ msintainin�
thf Qentrai mall area ot Broolosale Center tnd the otber
L.
12- .�v� ��r��Y �tnn
portions o! the Coa�mon Area iocated outsitle ot gsars� lan6,
the costs and l7.pET18� to Brookdale o! operatiir�g and main-
taining such central maii area ehall be loept sepamtte fram
the coetR ana expenaea to Brookdsle ot oyerating aM malatain-
ing the other pertions of the Co�saon Ar�a located outside ot
8ears ian6, und :he cogtb s�u tx,rsr,cea to 8ear� ot' operating
and maintaining the par)dng stalls locateQ on 8ears� land
ahali be krpt sepsrate "rcm �he a�eta and expenaes to Seari
of operating an6 maints+nin3 �F.e �`:he^ portions o! the Caamon
Area on Seare' iand. AL any tiime, and trcm time to �ims,
after S�a�e ehali have eisotsd to ope�nate aad a�aintain,at it�
owr� expenae the portione o! the Co�non Ares located otf Sttt�s
land, it maq eleat to have Brook3a:e operete atsd mattstala
the portilone ot the Co�maon Area located on 3ears� lan0,
aomnencing at a�peaitied dsLe at�the begiAniAg o! e ealendar
month (not �ess thatf 60 day�'subsequent to the dsts ot
dellverq ot Mrittsn notie� o! �ue� eleaLien by Sears to
Broo3odal�), aad, in tda eveAti o! say suob elsotion by Setra,
Brookd�le shali. commencing on �ucb specitle0 Oate, under-
take the operatioa ana maiate�anoe of tt,e entire Coa.noa �rea
pursuant to the provissons ot 8eatsan 1.5 het�or.
8eation 2.T. Sears �ball psy to Brookdale, in �i
advance, on ttu tirst day of eacb aal�ndat� moatb Auri� !he
DsMoQ ooa�oenatt� xith tt� datt xheA builaing ares oa 8�u�
la�e (as Qettned in 8ection 1.5 hereot) rirst �xiet� sr�d
-1P-
EXHIBIT "B"
1
ending xhen a nex tentative Camion Area �oonthly ehsrgt is
aalculated ae tureinaf��r aroviaed, a tentative Caamoc� J1rea
charge oP one-tr+e�Tth o! a swn xAiah is the product obtsined
by multipiying the number o! square teet o! builaing tres
on 3esrs� iar�d on the lirat day of �uch oaiendar montb by
10¢. WiLhin 60 daye after Jsrn�aty 32st r�ext aucceeding the
date Khen building area ori Sear�' 2and lirst exists, Srookdale
at�all oertity to Sears in xriting the oosts and sxpenies of
operating ar�d aainteining the Common Araa or, it 8ears ha�
eiected to operate snd raa3.ntain itself during sei0 perioQ
at its am expense the portion of the Coamwn Area looated
oti 9eara� iand, the cosb� and expenoes ot operating s�
maintainir�g the ceotral msli area (inoludina the charge or
ere0lt to 8eara on accouat o! parking staii� Qetermi:sea a�
providea in paragraph or (b) o! Saotion 1.6 h�reot),
during the period aaar�enair� xith the date xhen Duiidiisg
axa on 8esr�' tan� tirst exist� aad endicig st tbe eruf ot
+ra�d January 92�t, ar� tlureupo� it the totai te�tstive
paymen�a a�ade by 8aars to 8rookdale tor sueh laitial period
�re ies■ than �ar�� rt�sre o! wid oosts ana ezpen�es,
eash in the amount o! sunh diflereAOe �hali be psiA by 8sar�
to Brookda2e buti it �uch total tentstive pe�ymsbts by 8ears
aro more than Seare' ahnre o!' �aid oosts a� expeases, ca�b
in the amosu�t oP wah 01lf'ereriae sball De retue►ded by
Brookdale to 8eara, a• the ease �usy b�. IIpoa the fwrtiishing
-13-
rv u n r,-
by Srookdale to Sears of tt�e aioreaaid cerCiticabion o! �uab
costa and eapenses, a tentative monthly Cannon Area aharge
to ,8ears for tbe �ext eucceeding period� ahall be calcuLtsd
by dividing Sears� share ot �aia cost� and ezpenses tor said
initial period by the numDer ot montbs {inciading a�y
1'ra►ction of a month) included in uaid initial period and
ad�usting the ssme to rerlect reasor�ably antioi�ated in-
craasea or denreases in operatir� ooet� and exper�e�. 8ear�
shall pay to Hroo3�ale in advarice on the lirst day o!' each
calendar month atter Lhe date Lhat Sesrs receive• the atore-
said aertiTicntion of coete and experseea i'rom Broolodale until
a�ex tentstive monthly Con�a� Araa aharge is esleulated
ae hereinalter provided, the tentative monthly Co�eon Area
chsrge ao ea2cu1ate0. Within 60 days alter Lhe eed ot the
operating year or Brookdale Centar (lrom February'1 throngh
3anuarq 31) xhioh ia QurrenL at tl�e time o! the at'oreuid
cet�tilicatioa by Brook+�ale to 8eara and within 60 aays after
the snd oT eaah sub�equen0 oDerat3�g yrou of 8twolodale Centar,
Broolodale shal] aertity► to Sears ia Mriting the oostt and
expenses ot operating and maiatainiag the CaQaot� Area, or i!
Sears has •leots0 to operaLe aeb maintain it�e2t st iLs o+wn
expense during st�eh psriod tl�e �ortiaa o2' tbs Camoa Arsa
located o� �ears� lar�d, tha oosts aM expea�ss o! operati�
and maintainir�g the eentral m�ll aret (inoluair�g tt�e ohsrge
or credit to Seara on accounL of the psrldpg stalls
-1a_ rv�
t
cet�rms�ua as proviaad in psragrapb (s) or (b) or seattoa
1.6 hereot') during the Lst endea operstiog year and theraupon
!t the total tentative payment� iasde by Sear� to Brookdale
during said last er�ed operatirag year ar� ]ass �l�ar� Sears�
share oP aaid ooats a� expenses, ca�h ln the aawunt ot suoh
difference shali �x paia by 3sare to Hrooledale but i! suah
total teatative paymente by Sesrs are more tl�an 8aars' share
o! the coat• aufd expeneaa, aash in the �maast o! suah
difference ehaii be retu�ed byr Brookdsie to �ears, ae the
case may be, ana a nex tentstiva a�onthiy Coomaoa Ar�a aharge
to 3eara !or tt�e next suaceeding period ahsii be aaiaulated
and paia by Seara as aforesaia ar�d ad�uatmeat o! �uch
tenCative monthly Cononon /lrea ehsrgas •o paid Dy 8ears to
8ear�� actuai share ot' said ooate and ezpenees shall be made
upon •uDsequent aertilSastio� by Brookdale as ala�esaia.
�1Po� the request ot 8ears, Broolcdale shsli �aauae srn�ual
�uaits to be made by oertilied publia �bCOUntatft� o! LM
aosta and expenaas ot' operating and paintaiaiAg ths Comaaoa
Jlrea, or, it Sears haa eleetea to operate and malaLalA at
its osm eapeASa the portion o! the Cco�aa Area locste4 vr�
Sears� ],and, the aosts an0 �zpsaae• o! operating and me►intain-
ins tt� a�ntrsl a�alt ar�s, ino2udtt� Lt� aosts ar�d tzaas�s
�0 8eer� anQ 8rook�al� ot matntai�teag !he p�ar7� �ts2U
located o� tbe portion ot Brookdale CaAter axnea hy thsm
respectively.
-15-
ARTICLB II
$tandard of pninLenat�a� by
Rrookdaie an: 3ear�
8eation 2.1. Brookdale agre�s to msintaia the
Brookdaie la��d, ali buildings loeatsd oo �ech land, and
such portionu of bt►e Caunoa Ar�a a• it a�y lrom time to
time undertake to operate sn0 nisintain urider the terme aad
provisions of thia agrenment, !a a e�ean, safe and sanitarq
condition, in cor�tormity xith all spplicable laxa,
ordinance�, regulations arid oodes, and la good repair. Sears
agrees Co �oaintaip the Sears larb, ail buildinga lacatea on
such land end �uch portio�� o! the Common llrea as i� msy from
time to time undartaloe to operata and maintain under the
terms and provisions o! this agxemeat, in a olean, �al� ana
�anitary oonQitiot�, in eontarffity xith a11 sppiicabie laxs,
ordinances, reguiatione and oo0es, ar�d in good r�pslr.
ARTICIS IZI
Custaaer parltitag
8eation .l. BrooloO�Ie ar� 8eara eaah agree� that
the parking area on it� pr�mis�� in 8rookdaie Center �hali
be availabis !or the parkiag o! oar� ot oustomer� or
prospeetive owtaoer� o! u�y ot the busine�ses iocatea ia
Brookdale Center xithout oharge, untii the expiratioa o!
.�5 inars t'ro,n ths dat� wt�� �are aroolo0als Center dspartment
store rerarrea to sn sasa Purohase u,a eonstavatson Agr.emeab
-16-
t
lirst oDe�e tor busineas, uniess 8�ars and Hrockdale b� matuti
agreement establish a c:�arge !or auch parldrig. Attet� the
expiration o* aucb 35 year period, •ither Broo�ale or Sears
may make a clv�rge !or .parl�ng in its parld.ng areaa in
Brookdnie Center xithont approval ot' Lhe otber. In the evenL
of suoh parki�� c�urge the iaaani �eriyed t!�erefrom ahali be
appited againsL the oost of aeintaining the parking areas and
the appurtsnances thereto �o ae to reduoe the net aost
thereof Lo Brookdale and Sears.
ARTICLB IV
lo ee Parkin�
3�atior� 4.1. Od'ficers, empioyees, lessees,
iieenaees and aonaessionaires of 8ears shail perk their
motor vehicles and motor vehicier ot 8eare iA parking areas
on Seare� land desigasted to them by 8ears and not in aep►
other pnrldng ares in Hrookdale Center. 8rookdale �i�s1l
reqvire, by appropriats atipu3�tion in its �ttndard lease
xith respeoL to spsce in Brookdsle Center, tt�at eaah o! its
said lesaees ahe12 park, and Lt�at such leasee�� orrscer.,
employees, lieehsee� and ooacessionairei st�all park, their
motor vahiol�� oaly in parking araas looateQ ih tha part ot
Broolo0al� C�nt�r out�ide ot 8sara' laad xhiah ars Ma1`e�tted
bY ��dale ar ea�ployee psrking areas.
8�atian a.2. Sear� tt�a21, upon the xritten requ�st
of Brook0al�, !'ur�ish to 8roolodal� the auLaoobile iloenw
L
-iT-
numbars of motor vehicles ot Seare ar►d o! geari� ot'fiaer�,
employeee, lesaees, liaeniees ana oonoesalonair��, aM
Brookdaie •tsall, upon the xritten reQ�at o! 8eus, lurnish
to 8eare tt�e automobile lic�nse anmbera ot motor vahiai�ts
ot Brookdaie, ot each lesas� ot &�oolc0ale, and o! �uch
leaeee�a offiaers, employees, iicenasea snd concessionairea
and, !or tha purpoae ot faailitatit�g the enforcement of
empioyee partdng regulations, Brookdaie sha11 reQuire by
appropriate atipulation la its staadard lease xith re�peot
to epsce in Srookdaie Center, thst etah le��ee o! Broolcdaie
furnieh to Hrookdaie tha automobile iiaense number� o! motor
vehiolee of euch lessee and such lessee�s oft'iaers, ucyloyee�,
2loenaees and ooaoe�sic�atres.
ARTICLB V
SiAns sad Aaverti�ing
S�atien 5.1. �ears sgivs• tibat no �igns st�aii b�
plaoed on the roof� o!' its builaings loaated on 8ears' lana,
and that no aign on the dda ot a�r such buiiding �tull
protrudt fro� th� buileit� �oM thae� 12 inahes. Ilewolodale
a�re�s tt,at iL xili. by sDpropristt �tipulstion iA it�
atandard iease xith re�peet to spaee in Broolodale qntsr,
prohlbit its 2esaees lrom plaaing �iana oe� tM roo!'a o!' the
buiidings or premi�e� �hioh they so lease tnd riii r�stMot
aueh leese�s fran pla�in� ar�yr .s�, on t� •sae or a� suah
l building or premisee that protrudes lraa ssid building or
-18..
premises more than 12 inohe�. 8ears agrees to styat and
fnatall eigna xith reapeat to it• antandtive s�rvias station
in generai confonaity and harmony xith bbe character of
sigaa uped by Brookdalt.
ARTICLB VI
Houra o! Ocerstio�
8ecbion 6.1. Btwokdsie snd Setra e�ab reaognise�
that iL ia in the best interasts of 8roo1o0aie Cepter a� a
xhole and of Sears ar►d tt�e individnai tenants of 8roolodals
it� Brookdale Center to eetablieh ana ioaintala, insofsr s�
posaibie, unilorm hours during rhiah �ars aad aii tenants
and oacupaats ot SrookOaie CenLer shall ba opea !or bwi�ess
and Brookdaie and 3ears xiil malce every elfosrt to agree upon
aed maiatain such uniforro hour�, but �ars hsreDy► reserws
Lhe right Lo eleot to be opeA for b�uines� at ite depsrtment
etore in Brookdale Center at tiaes ottier thaa the �aheaW,e
o! buaitusa boar� �et !or tenaa�• ot Brookdal� in BroofoDale
CeaLer.
ARTICLS YII
Notiae
Section T.1. Ail notloes. notit'iastions �na
reque�ts proviaed !ar herein bq eil6ar party tiersto stiall b�
in xritiAg Iufd shtil De dee�ed to havs �s�r� 61ren or mad�
xt�en depoait�d 1a tht Dr�ited States siaii a• postag� prsptid
C re8lstexd maii addresse0 i» the eaee of &wokdale te 700
-1 �tpr
Nicollst Avenue, I�Iinneapoii� 2, Irlirute�ota, �nd la the ca�e
ot Sears to 8 Eaat Congress Parkxay, Chicago S, Iliinois,
Attention: Propert� I�las�agsr, or to such other addre�s a�
may !'rom time to time De designatea b7 either party hereto
to the otber yarty hereto ar it� mailing aadress !or the
purpose o! this Operating Agreement.
AR'1`ICLS VZII
Term of Thi■ JI$reement
Sectiott 8.1. This Operating Agreeme�t shaii aease
to be of anq► lurther lorae or eltect at the axpire�tion o!
35 years lrom the dats xt�en 9ears' ssid Brookdnle Center
depar�ment atore first opeAS !or busineas.
1
AHTICLB IX
8ucaeesora and Aasi ns
Seotion �.1. 'lt�is Operating �greement sl�til be
binding upon at�d inure Lo the benerit Of the respective
partiee her�to �ad their •uoceRSOre arid a�stgas.
IN WITl�88 1iHBi��+, the psrtiea hereto bave eauaed
this Opera,ting llgreemeat to �e exeoutea by ttuir reapeot�ve
officer� and �heir r�apeoLive oorpor�te seai• to be bereuato
afrixed p�rauant to tbe authority o! tbeir re�peo�iw BotrQ�
of D�ireotors ae of the ae4y and year lirst abrnre rritten.
In Ps�sena� of: BROO1mJ1f+B C8t�1T8R, IpC.
t'�a 7 ea
t��ear��itr�
-20 Corporat� Seai
In Pceaerice o!: SFJ1R.4 RO�SUCK IIDm �0.
i�i Viae pree en
11ne
t�e bsoretary
Corporate Sea2
STATE MINI�:30TA
)�a
COUNTY HI:NNEPIN)
On this day of 1960, bePore me appearea
�o me peraonai'I`y 1a�oMt�, wno, Deing"by me duly sxorn, di3 �ay
that theq are the PresidenL and the 8ecretery nspectively o!
Brookdale Center, Irse., a oorporstion, that the seai a!'lixed
to the Poregoing instrument is the oorporat� iaal ot said
corporation� ana that aaid inat:vment pea executeQ in bebal!
o! said corporation by authority ot' ibs Board ot Director�;
and that said �e
aclmawledged sa na rumen� the'��'e aat and3�s 'd�o
said corporation.
Ao�ary u c, eane n otm y,
l�pt Coamiaston H�ryl.�res:
$TATT OF ILLII�10I8�
as
CWNTY Q+ CQO1C
G� this dsY c� 1960. befort aie appeared
�o d�e peraons�I'"�asown, x io� being"by me`"�ly erora, di� asy
tbat they are the V'iae Prasident and the 9ecretary r�speolS�ely
ot 8ears Roebu�lc ana Co., a aorporatioq, tbst the saal a!lS�ced
to the loregoing instrumenL i� the oorporate �eal o! eaid
norporation, snd that ssia iqatrun�ent xas executsd in behnl�'
of said oorpomtion by authority o! it� 8oard ot Dir+eotorsf
.a sa���
aase oorporatson.
l�o '�s'y Y•
!�y Comralasion 8�ires:
�p,�_
D n s�ooxo,a�e
J
�c-T/�/�
r~ 3EAR8
fD- FILE)
FIRST StIPPLEMENT TO �'ORCHA9E A1�ID
CONSTR�TION AC�NT
agx�MEt�rt MBae this 3� t� eay ot �J U �tlE
1960, by aad bettreen THE DiA,YTWd CpA�lpANY, a Mi,ncusota corpor-
ation, firat party, BROOI�ALE CEI+TPEA, INC.. a Minnesote
corporation �hereir�aPter referred ta as "BrooJalai�"},
ae�or�d party, end 3EAR5 A�BtJCK App CO., a Nex Xork corpors-
tior� (hereinafter ret'erred ta ae "3eara"), thtr4 party,
Y2TNESSETHs
V�FtEA3, the partiee hereta contamporaaeoualy
berewtth are e�tering a Purchnse and Conatruction Agree-
ment �rith rcference to propoetd shapptng eenter ta be
)aiowr� ae "8rookdale Center" and ta he looated in Hermepin
County, Mitu�eeota, in xhich Agreeu�at there are incorpor-
ated as Exhibit "A" certain Yictor �#ruen drawinge and ae
Exhibit "B" a apecimer� copq ot an Opera�3ng Agreement
prepared !or execution by 8rookda2e snd 3eara, a�d
1�REAS, the partiea herato xiah to aupplement and
vary the terme ot aaid Purchasr snd Constructian Agreernent
and the Exhibita thereto as herein pzwvided,
NOW, T�3EREFOI�,
1. IT IS Aa�iEED 8Y AND 8811�T T'I� PARTIESi
�RETO THAT, noLwithatandir�g sa�y�hipg ta the contrary con-
L81neQ 1p satd Purchase and Conetruct2aa Jlgreement or �n 6,•/.e
either o� the Euhibits thereto attaahed:
��J
►.f tc4�
�'J �J�
1
i r
(a 3ears ahell t�ave the Mght to locate
ite automotive o�rvlce ataticn at any place up�n
the property �vhich is to be cvriveyed to $ears
under the provisiona of sai� Purchase and
Conatructton Agreement except the pa,ace indiaated
upan the above mentionect Yictor (�ruea dra�virfga
ae the locatlon !or the department atore o! 3ears
end exeept that said autoraotive service atation
ot' Sears shail noL be 2ocated at any place upon
aaid property t�hich t�ill oba�ruct or impede the
Pree An0 orderiy passage o!' vehiclea to and
from said Brookdale Center or the tree and
orderly circulation or vehicuiar traflYc v�ithin
e�aid Braokdale Center.
(b)� 3eara� proportionate share oP the aosta
and expeneee oP heatir�g and aircoriditiontng tt�e
central mall area of aaid 8rookdale Center,
relerred to in paragraph 6 ot said Purchaae �nd
Conetructlon Agreement and vnr3ou$ aectian� at the
at'oreeaid Euhibit p 8", tor eaah year ot the t'irst
tive (5) opera►tirig yeara o! aaid 8rookdale Center
(trom February 1 to Janugry 31) comrnencing on or
atter the dste when Sear,Q� department store 1A said
Brookda2e Centtr lirat opena tor bueineae ahall not �I
ii
exceed the sum oi' Three fihousand gix Hundred Dollare
t
1
(�3600) and, in eddition, l!' aaid dtpartuknt
atore liret opes� tor buaineas on a date other
than February 1 0! some year, Sears� proportianate
share of sueh coats and expenses for tbe period
conur,encing xith the date o! such opening and
eatending through the next succeedir� TanuarY 31
ehail-not exeeed euah propor�ioa o! Tlu�ee Thousand
8Sx Hundred Dollars ($3600) aa eQuala t.he
proportion Khich the nuraber ot daya ineluded
in auch period beara to three hundred sixty-live
�365� days.
2. BROOI�ALE AI�ID SEARS FURTHER AGAEE that at such
time as they execute and deliver the atoresaia Operating
Agreement, a apecimen eop� oP �hieh is at�ached as Exhibit
"B" to sai� Purchsae and Canstructioa Agreement, they �ill
enter into an agree�,ent supplement,ai to said Cperating
Agreement whereby they xiii supplcraent and vsry the terme
o! said Operatir� Agreement so ttitt aaid Operatiag igreement
as so suppiemtntea and varied xiZl Qonform trlth the
proviaions of �ubparag�sph (b) o!' paragraph 1 bereot.
IN wZTi�33 W�RE� Lhe psrtiea hereto t�ave csused
thi8 Firat Supplemeat to Purchaee eud Co�atructian �gree-
meat �o be executed by their reepaa�ive otficera and t heir
respeative corporate �eals to be bereuato afti�ed purataant
to Lhe autharity o2' tluir respectiva Boards ot' Directors,
'3_
as of the day and year. Pirat abave vrrlttea.
In Preeence ots
THE DA N COMPA
-1
J BY T77tt,. S �1
/•r I. �I l. I/, /%r �.a. ,,�,�e 4 NGC J `1 �.�a��..��
Its Prea dent ,o
/1 ./A.t/� ��u...t.t..�-.-7pr' �(�f D l ��Q�•� ,,•l
1(/ �C1Q V\ t 4�
v "i
Or.NF
t9�.�'C2'8ta2',�/ O; r i
G .'1
Corporate SeBY�. �1.''c,':'
Jj� t
BR00}�ALE GEMI'ER, INC.
BY
�l�?. (a.�.cc� �Cr�la,...�
I�e Pre 2dent
/�%�fC� d/L..t,[�w,t 1 f
And i.�l z. K�� %r
�Its Secretarq o
a
Corporate Seal
f r i�
a r y
SEARS �OEBUCK AND C0.
s�r �//C� �l `�L L.i R
APPR YEO
Its Vice President
'61F€6Mw
And �/��c'.1.�....w��;
I�e 3ec�e'tary r
Carparate Seal
,�.n..
f t
L_tf,
:i� �r
-�r0
-4-
%v iJ.� ,`;:,.C•:
J r
s
3TATE OF MINNESOTA�
sa
COUNTY OF I'�NNEPIN,
On �hi dsy o! V' ,�t r� me appeered
��u..��e.. t'� anQ'�_ G: �.P
�o me persoris y �o�} o, be3rig y�,,�s sworn, did say
that tbey are th�� �ei���t and th�`S@cretary ot Tha Dayton
Company, a corpoz�ition, that the eeal eftYaed to ttu toregoitg
instrument le the corporate seal of said corporatioa, and that
eaid ina�rument xse executed ia behalt o1' ssie! corporation by
authori y of it actors; ,snd tt�.t d,
C�
ac�mow e ge sa�ns rument to e e ree ac aa ee o
said corporation.
r....
Ao�ary c, enne n oun y�r,. .nn.
N�r Conuniealon Expires
c�.r.:<� t:�•��.�yc�c
STATE
aF MINNESOTA i•��.��. a�as��,`:, c� �.te�
ss c.�„�� t�...„...�,� u,w:�.. .y;
COtJNR'Y OP' �NNEPIN
On th •�l� day af �l�fti„�� b lore me eppeared
p/ i aA�!% /1 IP GI.
o me rs ona t'T`�i n Mfio be� gy�. u y exora, �33 say
that t�y are the President�and theXSe�l�etary o!' B�kdale
Centar, Inc., a aorporation, that t�ie aeal attiaed to tha
toregoing inetrument is the oorporate sesl ot said corpora-
tion, and that said inatz�ument Nas executed in behalt of
eaid corporation by authority o!' ita Di�ctore; and
tr�t 8a�a G. �a G �t��
s c k n 4 w i e d g e 8 8 i d n s�� t� n� t o be� re r ee act an ee a`
said corporation.
.y
�O},ary c, anep n Qim �t;
I�r Comimisalon 8upirea ��j
STATE ILISNOIS r �.R �;r. Kc
«.�,�p Po.iic.
aa Vu:..«.� C ;•iw 73:19G6 :.Ni.''
COUNTY COOIC
O�t this o! t�lv� 1960, betore me appeared
G. M. wi� i w+:.o
�a me perae�a���aaowa, x�, be�ng y ores, say
that they are the Yice Preaident and th re ary o? 8eara
•••::•;Aoebuck snd Co., a aorporation, that the sesl atlised to Lhe
r_. �.��torpgoit�g inatrumeAt is the corporate seal ot' uid aarpora-
••�iqfi, and that aaid inetrument xsa eaeeute0 iri behal! of ssid
oqz��b�atioa by authority o! its Eoard or Directora; atsd that
.�aia y i�, t:"":' iod Y2T�LLLII J. COi1J�ELTt
2T
s_ acktloio e e� aa ns rument to�ree ae�
aaia aorporatia�.
1�R�fi.a='Ya .aJ.�• �kµ�.
u�o, o0 oun�gr, tIl.
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T�iIS DECI.ARATION mede this day of I�99, by Talisman Gl
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v Brookdale?`LLC a Delaware limited liability compariy (lzereinxfter rreferred to as t��e "DeclaranY�,
WHEREAS, Declarant is ihe owner of the real pmperty described on Atiachment One
(f�ereinafter the "Declarant's Pzvperty��; and
WH�REAS, Aeclarant's Property is adjacent to certain other properEies descrt�bed on
Attachment Two (�iereinafter the pmperiies described on Aitachments One and 'I1�vo are collectively
referred to as the "Subject Properties"�; and
W�iEREAS, the Subject Properties are subjecf to certain xoning and land use restrictians
unposed by #he city af Brooklyn Center, Minriesota {��C:ity��) in connectian with ti�e �i�zaning of the
Subject Properties fi�om the zoning olassificatioa C-2 (Commerce) to PUDIC-2 as provided in C`iiy
Resoiution No. 99-3.7 sdopte�i. on Manch 8, 1999; and
WHEREAS, the City has approved such rezoning an the basis of the deteimination of the
City Council of the Ciry t�at such rezoning is acceptable� axily by reason of the detaiis of the
deveiopment proposed and the unique land use charaeterisEics of the proposed use of the Sutiject
Properties; axid that bttt for the details of the development proposed and tt�e uniqac land use
characteristics of such proposed use, the rezaning wotsld nat have been approved; and
WI�REAS, as a condition of approval of the rezoning, the City has required the execuiion
and Sling af this Ueclaration af Covenants, Conditions and Restrictivns (hereinaf�er the
"Dec]aration'�; and
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OF�IC� QF TH� REG{�STqRt3 C.
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C�RT(�t�D FIL.�D pN
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t1EJcSED
DECLARATION OF COVENANTS
AND RESTRICTIONS
THIS DECLARATION made this �`�day of P�r='�, �P 1999, by Talisman
Brookdale, LLC, a Delaware limited liabiliTy company (hereinafter referred to as the "Declarant");
WHEREAS, Declarant is the owner of the real property described on Attachment One
(hereinafter the "Declarant's Property"); and
WHEREAS, Declarant's Property is adjacent to certain other properties described on
Attachment Two (hereinafter the properties described on Attachnnents One and Two are collectively
referred to as the "Subject Properties"); and
WHEREAS, the Subject Properties are subject to certain zoning and land use restrictions
imposed by the city of Brooklyn Center, Minnesota City in connection with the rezoning of the
Subject Properties from the zoning classification C-2 (Commerce) to PUD/C-2 as provided in City
Resolution No. 99-37 adopted on March 8, 1999; and
WHEREAS, the City has approved such rezaning on the basis of the determination of the
City Council of the City that such rezoning is acceptable only by reason of the details of the
development proposed and the unique land use characteristics of the proposed use of the Subject
Properties; and that but for the details of the development proposed and the unique land use
characteristics of such proposed use, the rezoning would not have been approved; and
WHEREAS, as a condition of approval of the rezoning, the City has required the execution
and filing of this Declaration of Covenants, Conditions and Restrictions (hereinafter the
"Declaration"); and
CLL-169416 1
BR291-188
WHEREAS, to secure the benefits and advantages of such rezoning, Declarants desire to
subject the Declarant's Property to the terms hereof.
NOW, THEREFORE, the Declarants declare that the Declarant's Property are, and shall be,
held, transferred, sold, conveyed and occupied subject to the covenants, conditions, and restrictions,
hereinafter set forth.
1. The use and development of the Subject Properties shall conform to the following,
the large scale originals of which are on file with the Community Development Department of the
City:
A. Site Survey attached as Attachment Three (Plan Sheet a0.1)
B. General Site Plan attached as Attachment Four (Plan Sheet al.l
C. Existing First Level Plan attached as Attachment Five (Plan Sheet a2.0e)
D. First Level Proposed Lease Plan attached as Attachment Six (Plan Sheet a2.0)
E. Second Level Overall Floor Plan attached as Attachment Seven (Plan Sheet a2.1)
F. Exterior Elevations attached as Attachment Eight (Plan Sheet a3.1)
G. Exterior Images attached as Attachment Nine (Plan Sheet a3.2)
H. Grading and Drainage Plans attached as Attachment Ten (Plan Sheets C1.1 through
C1.4)
I. Utility Plans attached as Attachment Eleven (Plan Sheets C1.5 through C1.8)
J. Landscape Plan attached as Attachment Twelve (Plan Sheet Ll .1)
K. Site Lighting Plan attached as Attachment Thirteen (Plan Sheet Lil.l)
L. Applebee's Plan and Elevations attached as Attachment Fourteen (Plan Sheet A-1),
all of which Attachments are hereby made a part hereof. No buildings or structures other than those
CLL 169416 2
BR291-188
shown on Atta.chments Three through Thirteen may be erected or maintained on the Subject
Properties.
2. The approval of the Planned Unit Development authorizes the following variations
from the requirements of the City Code applicable to C-2 uses on the Subject Properties:
A. The setback from property lines to parking lot pavement (greens�irip) is reduced from
15 feet to 5 feet in certain locations as shown on Attachment Five.
B. The setback from public right of way to buildings is reduced from 50 feetto 35 feet
in certain locations as shown on Attachment Five.
C. The parking space layout between rows of 90" parking spaces is reduced from 63 feet
to 60 feet.
D. The number of parking spaces required is based on gross leasable area rather than
gross floar area.
E. Required parking is reduced from 5.5 spaces per 1000 square feet of gross floor area
to 4.5 spaces per 1000 square feet of gross leasable area.
F. Two freestanding signs of 320 square feet each are permitted along T.H. 100 rather
than one sign of 250 square feet.
G. The amount of gross leasable area which may be allowed without requiring a seating
count for parking space requirements is increased from 15 percent to 20 percent.
3. Pazking and traffic circulation plans on the Subject Properties may not be altered
except as necessary to conform to the site plan (Attachment Four) or authorized by the Brooklyn
Center City Council by PUD amendment. The parking and traff'ic circulation plan will not be
CLL-169416 3
BR291-188
modified in any way which has the effect of depriving public mass transit vehicles of reasonable and
convenient access through the parking lot at the center and to embark and disembark passengers at
the center. The owners of the Subject Properties are not required to provide space or
accommodations for mass transit vehicle parking, stacking or laying over, for parking of privately
owned vehicles of mass transit patrons or for the transfer of passengers between mass transit
vehicles.
In the event it is determined in the future by the City Council of the City of Brooklyn
Center that the then existing parking on the Subject Properties is not adequate, the owners of the
Subject Properties shall redesign and reconfigure parking areas and construct such additional parking
facilities as are necessary to provide 5700 parking spaces on the Subject Properties according to
plans which are subject to City Council approval as PUD ameridments.
Al1 parking areas shall be divided by concrete parking dividers approved by the
Brooklyn Center City Engineer.
4. Building pads shown on the site plan (Attachment Four) and designated as Building
#2, Building #3, and Building #4 have been given conceptual approval only for development of
restaurant or retail uses of 10,000 square feet, 15,000 square feet and 25,000 square feet respectively.
These three sites may not be developed except as approved and provided through PUD amendments
and approval by the City Council in which approval the City will be bound by the legal limitations
on the exercise of its police power, that such decisions not be arbitrary, capricious or unreasonable.
5. In the following areas where the setback from properly lines to parking lots have been
reduced from 15 feet to 5 feet as described in paragraph 2 hereof, the setback area shall be improved
CLL-169416 4
BR291-188
with a three to three and one-half foot high keystone wa11:
A. Adjacent to the parking lot in the vicinity of the Applebee's store which is identified
as Building #1 on Attachment Four; and
B. Along County Road 10 in the viciniTy of the building site identified as Building #2
on Attaclunent Four.
6. The building pad shown on the site plan (Attachrnent Four) and designated as
Building #4, lies within the 100 yeaz flood plain of the CiTy and accordingly may not be filled or
developed without providing approved compensating floodwater storage.
7. The Subject Properties may only be developed and used in accordance with
Paragraphs 1 through 6 of these Declarations unless the owner first secures approval by the City
Council of an amendment to the planned unit development plan or a rezoning to a zoning
classification which permits such other development and use.
8. Except as provided herein, use of the Subject Properties shall conform to the
regulations of the City of Brooklyn Center applicable to G2 (Commerce) District and City Council
Resolution No. 99-37 adopted on March 8, 1999.
9. Declarant is the owner in fee of the real property described in Attachment One.
Declarant is not the owner of the pazcels described on Attachment Two; however the Declarant
represents and warrants to the City that each of such parcels which it owns, and each of the parcels
of which it is not the owner, are subject to a reciprocal easement agreement or a lease which in each
case restricts the building of any improvements on, or the making of any material changes, other than
those indicated on a site plan attached to the subject agreement or lease without the consent of
CLL-169416 5
BR291-188
Declarant. In all cases such attached site plan is entirely consistent with the restrictions contained
in the Site Plan attached to this Declaration. Declarant covenants and agrees that it will not modify
any of such agreements, or permit their modification, in any way which would violate or be
inconsistent with the restrictions and agreements contained within this Declaration without the prior
written consent of the City and that Declarant will take such affirtnative steps as are needed to
enforce the terms of such agreements to assure that the Declazant's Property is not used or developed
except in conformance with the requirements of this Declaration.
10. The obligations and restrictions of this Declaration run with the land of the
Declarant's Property and shall be enforceable against the Declarant, its successors and assigns, by
the City acting through its City Council. This Declazation may be amended from time to time by
a written amendment executed by the City and the owner or owners of the lot or lots to be affected
b said amendment.
y
IN WITNESS WHEREOF the undersi ned as dul authorized a ents officers or
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representatrves of Declarants have hereunto set their hands and seals as of the day and year first
above written.
TALISMAN BROOKDALE, LLC
By:
s �tS
SHARON L KNUTSON
NOTARYPUBLIC-MINNESOTA $y; ItS
�y co.mieaon Exprea ��n. s,, 2oos
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STATE OF MINNESOTA
CLL-169416
BR291-188
SS.
COUNTY OF HENNEPIN
The faregoing instrument was acknowledged before me this q�day of ��be✓ 1999,
b y ��r�e,��. ,��e5i flq2r the P�S�dcn+ and
the for and on behalf of Talisman
Brookdale, LLC, a Delaware limited liability company.
';,L��u
(7� �1 1 �YUI.�u�
Notary Public
CLL-169416v416
BR291-188
CLL-169416
BR291-188
ATTACHMENT ONE
Tracts A, B, C, and D, Registered Land Survey No. 1469, Files of the Registrar of Titles, Hennepin
County, Minnesota.
And
Tracts A, B, and C, Registered Land Survey No. 1614, Files of the Registrar of Titles, Hennepin
County, Minnesota.
CLL-169416 g
BR291-188
ATTACHMENT TWO
Tracts C and D, Registered Land Survey No. 1469, Files of the Registrar of Titles, Hennepin
County, Minnesota.
And
Tract A, Registered Land Survey No. 936, Files of the Registrar of Titles, Hennepin County,
Minnesota.
ana
Tract E, Registered Land Survey No. 1469, Files of the Registrar of Titles, Hennepin County,
Minnesota.
CLL-169416 9
BR291-188
A�CIIIIfI11AI Al4
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LEI`P SIDC ISOOTI{) gLtiVATION
SILE VAIL S1GN. W o. Ff.�
Curt Boganey
From: Boegeman, Patricia E. [pboegeman@Kennedy-Graven.com]
�ent: Monday, August 27, 2007 10:29 AM
fo: Curt Boganey
Cc: Ron Warren
Subject: Wal-Mart Super Center
curt,
The Cit has b n r
ee esented with letters from le al counsel for b h Sears and Br kdale ivin conflictin o inion
Y p g ot oo g g g p s
relating to parking and development at the Brookdale Shopping Center. Sears asserts that it has rights under its contracts
with Brookdale to decline to approve changes in parking and buildings, and that it does not approve of Brookdale's
proposal. Brookdale denies that Sears has the right to disapprove the proposed development.
Sears may well have a contractual right to prevent Brookdale's proposed development. However, Sears can assert and
enforce those rights in court without involving the City in a dispute between the two private parties. If Sears prevails, it
may prevent the project from going forward. If not, the City will neverthless have a parking issue to address.
Brookdale is treated as a single unit for purposes of parking. The 1999 PUD approval required that 4.5 spaces be
provided for every 1,000 square feet of gross leasable area. Brookdale's proposal currently meets the 1999 parking
standard. However, it meets that requirement only by counting the parking on the Sears parcel, which has 7.1 spaces per
1,000 square feet
Sears expresses the concern that approval of the Brookdale application will destroy Sears' property rights by using up
Sears' parking spaces to meet the other parking requirements of Brookdale. However, the City is not asserting that
approval of the Brookdale application will prevent Sears from using its excess parking in a future development. If Sears
has the property and contract rights to expand building square footage or reduce the number of parking spaces, or both,
'�e exercise of those rights (as well as any similar rights of the owners of the Macy's, Midas and Brookdale Bar and Grill
sites) would have to be addressed by Brookdale. That is, Brookdale would have to be in a position to prevent the overall
parking ratio from exceeding 4.5 spaces per 1,000 square feet.
Brookdale could provide the assurance that the required parking ratio will not be exceeded in several ways, including:
1. Covenants limiting, preventing or controlling the construction of additional building square footage on properties in the
Brookdale Shopping Center that are not owned by Brookdale; or
2. Covenants limiting, preventing or controlling the elimination of parking spaces on properties in the Brookdale
Shopping Center; or
3. Covenants imposing an obligation to alter the parking ratio by the addition of parking spaces (including structured
parking if needed) or the reduction of building square footage; or
4. Some combination of the above.
The City Code, Section 35-355, Subdivision 4d provides "All property to be included within a PUD shall be under unified
ownership or control or subject to such legal restrictions or covenants as may be necessary to ensure compliance with the
approved development plan and site plan."
To date, Brookdale has provided no documentation demonstrating that the Brookdale Shopping Center is subject to such
lega4 restrictio�s or covenants as may be necessary to ensure compliance with parking requirements.
If the Council wishes to continue to impose the requirement that parking at the Brookdale Shopping Center not exceed 4.5
P aces er 1 000 s uare feet it could re uire assurance that Brookdale has sufficient restrictions or covenants in one of
P q q
two ways either:
1. Disapprove the application because the applicant has not demonstrated sufficient legal restrictions or covenants; or
1
r
2. Approve the application on the condition that proof of such covenant be provided.
If the Council chooses the second course, I would recommend the addition of new condition #18 to the proposed
�solution stating:
"18. No building permits will be issued until the applicant has provided proof, deemed sufficient by the city attorney,
demonstrating sufficient legal restrictions or covenants to assure that future development of the Brookdale Shopping
Center properties will not result in a parking ratio of over 4.5 spaces per 1,000 square feet of gross leasable space."
Charlie
Charles L. Le�evere
Kennedy Graven, Chartered
470 US Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
(612) 337-9215
clefevereCa?kennedv-o raven.com
2
COUNCIL ITEM MEMORANDUM
TO: Curt Boganey, City Manager
FROM: Ronald A. Warren, Planning and Zoning Spec alist
DATE: August 20, 2007
SUBJECT: Planning Commission Application No. 2007-014
Recommendation:
It is recommended that the City Council, following consideration of this matter, approve the
application subject to the conditions recommended by the Planning Commission.
Background:
On the August 27, 2007 City Council Agenda is Pianning Commission Application No. 2007-
014 submitted by Hanson Thorpe Pellinen Olson, Inc. requesting Preliminary Plat approval to
combine six existing tracts of land within Brookdale Center and proposed vacated right of way
to create three new parcels of land, one of which is the proposed site for Wal-Mart. This
matter was considered by the Planning Commission at their August 16, 2007 meeting and was
recommended for approval.
Attached for your review are copies of the Planning Commission Information Sheet for
Planning Com�mission Applica.tion No. 2007-014 and also an azea map showing the location of
the praperty under consideration, the Planning Commission minutes relating to the
Commission's consideration of this matter and other supporting documents.
Budget Issues: There are no budget issues.
Application Filed an '7-19-07
City Council Action Should Be
Taken By 9-17-0� (60 Days)
Planning Commission Information Sheet
Application No. 2007-014
Applicant: Hanson Thorpe Pellinen Olson, Inc.
Location: Brookdale Center
Request: Preliminazy Plat
The applicant, Hansan, Thorpe Pellinen Olson, Inc. (HTPO) on behalf of Brookdale Center, is
seeking Preliminary Plat approval to combine six existing tracts of land within Brookdale Center
and proposed vacated right of way to create three new pazcels of land. The primary purpose of
this proposal is to create a 14.27 acre parcel for development of an approxima.te 184,600 sq. ft.
Wal-Mart Supercenter (a Planned Unit Development Amendment for development plan approval
for the Wal-Mart Supercenter is the subj�t of Planning Commission Application Number 2007-
O15).
Bmokdale Center is zoned PUD/C-2 (Planned Unit DevelopmendCommerce) and is also located
in the Central Commerce (CC) Overlay district. It is bounderl on the north by County Road 10;
on the east and southeast by T. H. 100; and on the west and southwest by Xerxes Avenue North.
The Broc3kdale Shopping Center is subject to the PUD agreement comprehended and appmved
under City Counoil Resolution No. 99-37 on Mazch 8, 1999.
For development purposes, the city considers Brookdale Shopping Center to be a single
development parcel, however, it is made up of several parcels or tracts of land which generally
reflect ownership interest. Brooks Mall Properties, LLC (or Brookdale Center) owns the
majority of parcels, however, Sears, Macy's, Midas and Boulevard's Bar and Grill are parcels
owned separately from Brookdale Center.
The parcels of land included in the proposed Preliminary Plat with the exception of the proposed
vacated right of way are a11 owned by Brookdale Center and are currently described as Tract A,
RLS No. 1469 (313 sq. ft.); Tract D, RLS No. 1469 (16,328 sq. ft.); Tract A, RLS No. 1614
(283,277 sq. ft,); Tract B, �LS No. 1710 (423,657 sq. ft.); Tract C, RLS 1710 (46,172 sq. ft.);
and Tract A, RLS 1766 (1,611,616 sq. ft.). The total land area of the proposed plat including the
proposed vacated right of way is 2,407,232 sq. ft. or 55.26 acres.
As will be reviewed in the PUD amendment application (Application No. 2007-015), Brookdale
Center is seeking the closing of the south leg of the County Road 10/Northway Drive intersection
that serves as one of the entrances to Brookdale. They hope to acquire this and incorporate it into
Brookdale Center. Hennepin County, who has jurisdiction over County Road 10, has been
approached about this possibility and seems receptive provided the necessary physical
improvements needed to close this leg of the intersection are made. The County cannot convey
this right of way directly to Brookdale and it would have to involve the City of Brooklyn Center.
8-16-07
Page 1
Also proposed is the dedica.tion of a comparable amount af land at the south leg of the County
Road 10/Shingle Creek Parkway intersection for right of way purposes and is shown on the
preliminary plat as dedicated right of way. The details of tlus exchange will have to be
negotiatal and concluded as well as a formal vacation of right of way for this plat to proceed in
the manner proposed.
The new propose� legal description is Lot 1, Lot 2 and Lot 3, Brookdale Ma11 addition. Lot 1 is
proposed to be 621,485 sq. ft. and is the site of the pmposed Wal-Mart Supercenter and wvuld be
sold to Wal-Mart. Lot 2 is 1,502,471 sq. ft. and is the majority of the property owned by
Brookdale Center and includes parking lot and the mall property. The old J C Penney's
automotive center site would be incorporated into this lot. Lot 3 is 259,180 sq. ft. and is the
balance of the parking area and portions of the perimeter road lying east of the section line
sepazating the property and is a separate pazcel because of that section line. Macy's, Steve and
Barry's (the old J. C. Penney's stare which is owned by Brookdale Center), Midas, Sears, Kohl's
(ovvned by Brookdale Center), Applebee's (owned by Brookdale Center); and Boulevard's Bar
and Grill are all parts of Brookc�ale that aze not included in this plat.
Again, the primary purpose of the plat is to create a parcel for Wal-Mart. It also clears up a few
matters and provides for the dedication and vacarion of right of way within this plat.
The Commission's attention is directed to the Director of Public Works' memo dated 8/13/07
relating to the Preliminary Plat for his comments and recommendations relating to this plat. He
is requesting the dedication of a 30 ft. wide trail and sidewalk easement through the proposed Lot
3 from the regional trail along Shingle Creek Parkway to the existing pedestrian bridge over
T. H. 100. He has also listed a number of pubhc drainage and utthty easements that should be
included in the Fina1 Plat. Costs for modifications to the County Road 10lNorthwa� Drive
intersection will be the responsibility of the applicant.
A public hearing has been scheduled for this Preliminary Plat and notice of the Planning
Commission's consideration has been published in the Brooklyti Center Sw�/Post.
RECOMMENDATION
The proposed Preliminary Plat appears to be in order althaugh there aze a number of details that
will need to be resolved prior to final plat approval. Appmval of this application is
recommended subject to at least the following conditions:
1. The final plat is subject review and approval by the City Engineer.
2. The final plat is subject to the provisions of Chapter I S of the City Ordinances.
8-16-07
Page 2
3. The area indicated as Coun Road 10 ri t of wa shall formall be vacated rior
h' Y Y P
to final plat approval.
4. Building permits for the construction af the Wal-Mart Supercenter camprehended
under Planning Commission Application No. 2007-015 sha11 not be issued until
the final plat has been approved by the City Council and filed with Hennepin
County.
5. The applicant shall dedicate a 30 ft. wide tra.il and sidewalk easement thmugh the
proposed Lot 3 from the regional trail along Shingle Creek Parkway to the
existing pedestrian bridge over T.H. 100 as part of the Final Plat.
6. The Final Plat shall include the dedication of public drainage and utility
easements in the manner and location approved by the City Engineer.
7. The applicant shall provide an updated and executed copy of cross access
agreements with various property owners within Brookdale in a manner
acceptable to the City Attorney prior to Final Plat approval.
8-16-0�
Page 3
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BENTONVILLE, AR
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City of Brooklyn Center
A Millennium Community
MEMORANDUM
DATE: August 13, 2007
TO: Ron Warren, Planning and Zoning Specialist
FROM: Todd Blomstrom, Director of Public Works ���j
SUBJECT: Preliminary Plat and Site Plan Review
Planning Commission Applications 2007-014 and 2007-015
Brookdale Walmart
Public Works Department staff reviewed the following preliminary documents submitted for
review under Planning Commission Applications 2007-014 and 2007-015 for the proposed
Walmart development site located at Brookdale Mall:
Parking Layout, dated July 19, 2007
Site Plan, dated July 18, 2007
Gzading and Drainage Plan, dated July 18, 2007
Utility Plan, dated July 18, 2007
Preliminary Plat, dated July 9, 200?
The applicant is proposing to combine and subdivide the following parcels for the purposes of
reconfiguring the parking lot for Brookdale Mall and for construction of a Walmart retail store within
the Brookdale MaII site:
Tract A and Tract D, Registered Land Survey No. 1469
Tract A, Registered Land Survey No. 1614
Tract B and Tract C, Registered Land Survey No. 1710
Tract A, Registered Land Survey No. 1766
1. Preliminary Plat
�ublic Works staff recommends the following modifications to the preliminary plat for Walmart
Brookdale as conditions of the preliminary plat approval.
A. The applicant has requested that the site access from County State Aid Highway (CS.AH) 10
at Northway Drive be closed to accommodate the development of the proposed Walmart.
This process would involve transfer of ownership for the land containing the southern leg of
the existing signalized intersection. Hennepin County has indicated that disposition of the
property would involve a turn-back pmcess, not a simple right-of-way vacation process.
630I Shingle Creek Parhway Xecreation and Community Center Phone TDD Number
Brooklyn Center, M1V 55430-2199 (763) 569-3400
City Hall TDD Num6er (763) 569-3300 FAX (763) 569-3434 Page 1 of 6
FAX (763) 569-3494
tau�te.cit��ofbrookl��ncenter.org
The County has further indicated that they are generally receptive to considering the
proposal, but the process would involve the sale of the land to the City of Brooklyn Center
for fair market value or other valuable considerarions. Alternatively, the disposition of land
within the exisring intersection could involve a land auction process if the City does not wish
to participate in the land transfer. City staff has requested that Hennepin County begin the
turn-back process pending further direction from the City Council and the applicant. The
turn-back process is expected to take 4 to 6 months.
B. As a condition of closing the southern leg of the intersection along CSAH 10, the Brookdale
property owner shall dedicate a 30 ft wide trail and sidewalk easement extending from the
regional hail along Shingle Creek Parkway on the north side of Lot 3 to the exisring
pedestrian bridge over State Highway 100 located at the southern boundary of Lot 3. T'he
applicant shall meet with City and County staff to determine the specific alignment of the
trail and sidewalk easement prior to submittal of the final plat.
C. The final plat shall include public easements only. Private utilities within the mall site shall
be contained within separate easements recorded with Hennepin County. Water supply
mains, sanitary sewers and storm sewers within the Brookdale site are private utilities unless
otherwise noted in Item D below.
D. The final plat shall include dedicated public drainage and utility easements over the
following locations:
1. A 30 wide Urility Easement centered on the alignment of the existing trunk sanitary
sewer extending from Northway Drive through the eastern portion of the Brookdale site
to the northern right-af-way boundary for State Highway 100.
2. A 30 ft wide Utility Easement centered on the alignment of t'he existing trunk sanitary
sewer extending from Shingle Creek Parkway through the eastern portion of the
Brookdale site and terminating at the existing trunk sanitary sewer indicated in Item 1
above.
3. A 50 ft wide Drainage and Utility Easement centered on the alignment of the existing box
culvert drainage structure extending from Shingle Creek Parkway through the eastern
portiori of the Brookdale site.
4. A 20 ft wide Utility Easement extending over the water main isolation valve located
approximately 20 ft south of the south right-of-way for CSAH 10.
5. A 10 ft wide Drainage and Utility Easement alang the perimeter boundary of the plat
abutting Xernes Avenue, CSAH 10, Sta.te Highway 100 and the eastern property
boundary of Lot 3.
6. A 20 ft Utility Easement over the portion of the existing public sanitary sewer extending
along the northern plat boundary near the Northway Drive entrance. The current plans do
not show this existing sanitary sewer alignment.
7. Utility easements over two locarions (expansion areas) as noted on attached Exhibit A.
Page 2 of 6
E. A 10 ft wide public sidewalk easement along the plat perimeter abutting Xerxes Avenue and
CSAH 10 shall be dedicated to the public and recorded with Hennepin County as a separate
document in conjunction with the final plat.
F. The applicant shall provide legal descriprions of existing easements to be vacated as part of
the subdivision and site re-development process.
G. T'he applicant shall provide an updated (within the past 30 days) certified abstract of title or
registered property report to the City Attorney for review at the time of the final plat
application.
H. The applicant shall provide the City with an updated and executed copy of a cross-access
agreement with various property owners within the Brookdale site. The form of the cross-
access agreement shall be acceptable to the City Attorney.
I. The proposed subdivision plat is located adjacent to Minnesota Department of
Transportation (Mn/DOT) highway right-of-way. Minnesota Statutes requires that the City
submit the plat to the Department of Transportation for written comments and
recommendations.
2. 5lte Plan and TrafIIc
The applicant has provided a report from their traffic engineer outlining the traffic patterns that
would result from the closure of the northern mall entrance at Northway Drive. The traffic study
determined that the existing mall entrance at Shingle Creek Pazlcvvay/CSAH 10 can accommodate the
increased traffic valumes that would be generated by the entrance closure, assuming that certain site
modifications aze completed as indicated in the preliminary site plans and as noted below. A copy of
the traffic study is available at the Engineering Division office. Public Works staff recommends the
following modifications to the preliminary Site Plan for Walmart Brookdale as conditions of the site
plan and PUD approval.
A. The Site Plan depicts the wheel paths of semi-truck type delivery vehicle along the proposed
alignment of the eastern site entrance and frontage road. The shorter radii along the
alignment of the proposed frontage road will result in minor conflicts with turning
movements. The applicant shall provide options for addressing the road alignment issues
near the easterly most secrion of the frontage road. The applicant shall also eliminate one
parking stall and increase the width of the frontage road at the northeasterly comer of the
pazking lot to address wheel path conflicts. See attached Exhibit C.
B. The location of "Future Pad 2" shall be reconfigured to avoid encroachment over the existing
box culvert.
C. The Site Plan shall be amended to provide details regarding pavement markings and traffic
control signage in conformance with the Minnesota Manual on Uniform Traffic Control
Devices. Centerline pavement markings shall be extended along the length of the frontage
road. Traflic Control signage shall be provided at internal intersections in accordance with
Ciry requirements.
Page 3 of 6
D. Pavement along the Shingle Creek Parkway mall entrance is deteriorated and lacking
sufficient pavement markings to accommodate the increased traf�ic generated from the
proposed Walmart facility. The applicant shall provide for the resurfacing of the Shingle
Creek Parkway mall entrance as part of the propos� site improvements. Pavement markings
within 400 feet of CSAH 10 shall be poly-preformed markings in comformance with
Mn/DOT specifications.
E. The applicant shall be responsible for the cost of modifications to the CSAH 10 Northway
Drive intersection that will be necessary to provide for the closure of the south leg. These
costs shall include engineering design as well as curb, pavement, pavement markings and
traffic signal modifications and other modificarions as required by Hennepin County.
F. All internal drive lanes, frontage roads and parking lot islands shall be conshucted with Type
B618 concrete curb and gutter.
G. The City is currently preparing a pedestrian and landscaping study for the CSAH 10 corridor
from Highway 100 to Brooklyn Boulevard. The applicant shall modify the site plan to reflect
details for the sidewalk connecrion to CSAH 10 in coordination with the study.
3. Water Supply and Sanitary Sewer Utility Services
The Brookdale mall site is supplied with public water service ftorn water mains located along CSAH
10 and Xerxes Avenue. The existing public water distribution infrastructure has adequate capacity to
accommodate the proposed WalmaR development. The water main within the Brookdale Mall site is
privately owned infrastructure under the maintenance responsibility of Brookdale Mall. Sanitary
sewer service is provided from the exisring trunk sewer extending through the Brookdale Mal] site.
This trunk sewer also has adequate capacity for the proposed Walmart. Public Works staff
recommends the following modifications to the Utility Plan for Walmart Brookdale as conditions of
the site plan and PUD approval.
A. Fire and domestic water services shall be separated prior to entering the proposed building.
Domestic and fire services shall have separate exterior curb stops, gate valves or PNs to
allow isolation of individual water service lines.
B. Prior to demolition of the existing structure, water and sewer services shall be disconnected
from the water distribution and wastewater collection systems in accordance with the City of
Brooklyn Center Standard Specifications for Water and Sewer Disconnects.
C. All water main and sanitary sewer utility extensions and relocations shall rneet City of
Brooklyn Center design standards. The location and method of connection to the existing
water and sanitary sewer mains shall be subject to approvai by the City Engineer and
Supervisor of Public Utilities.
D. The proposed water main and sanitary sewer force mains shall be constructed with ductile
iron pipe unless specifically authorized by the City Engineer. Additional design information
for the proposed sanitary sewer lift sta,tion shall be provided to the City Engineering Division
prior to application for a building permit.
Page 4 of 6
E. The 12-inch diameter isolation valve located along the north properiy line (main feed for
Broukdale Mall) sha11 be replaced prior to relocation of internal water main. The valve is not
operating praperly. The short segment of cast iron water main between this isolation valve.
and the proposed water main relocation shall also be replaced with new pipe.
F. The Utility Plan shall be revised to include additional isolation valves at the connections
between the proposed (new) water main and the existing water main to provide for proper
testing and isolation in the event of future water main.breaks.
G. The Utility Plan indicates a short segment of 12-inch diameter CMP sanitary sewer
(approximately 115 feet) near the front entrance to the tnall. T'his segment must be replaced
or a cured-in-place liner must be installed to prevent future pipe failure. High corrosion rates
and pipe failure often occurs in locations where corrugated metal pipe is used for sanitary
sewer conveyance.
H. The applicant shall provide a copy of an agreement with the Midas building owner to relocate
water and sewer utilities within the Midas site or, alternatively, provide for these relocations
within the boundary of the proposed plat.
I. The applicant's engineer sha13 meet with City staff ta review minor discrepancies regarding
the location of the existing sanitary sewer and storm sewer within the site.
J. The installarion and operarivn of private water supply wells within the Brookdale Mall site is
strictly prohibited due to potential migration of of� site contamination on other properties.
K, Tracer wire and tracer wire access boxes shall be installed along the pmposed sanitary sewer
services in accordance with City standards.
L. Proposed hydrant locations are subject to the approval of the City Fire Chief and Building
Official.
M. Transient overnight parking and overnight RV parking is prohibited due to the lack of
sanitary sewer and other sanitary facilities within the Brookdale Mall site.
N. The Applicant shall be responsible for coordinating site development plans and private utility
relocations with Xcel Energy, CenterPoint Energy, Qwest Cornmunications and other private
utility companies.
O. The owners of all parcels being subdivided with the praposed plat shall enter into a
staadard ageement with the City of Brooklyn Center for maintenance and inspection of
private water main, sanitary sewer and storm drainage systems located within the plat
boundary. This standard agreement authorizes the City to perform repairs to the above
state infrastructure in the event that the land owners fail to adequately maintain these
shared private systems.
Page 5 of 6
4. Grading, Drainage and Erosion Contro!
Storm water runoff from a majority of the proposed redevelopment site is routed to the regional
storm water management system located within the Centerbrook Golf Course. The proposed site
improvements do not significantly increase the amount of impervious surface within the Brookdale
Mall site. Public Works staff recommends the following modifications to the Grading and Drainage
Plan for Walmart Brookdale as conditions of the site plan and PUD approval.
A. Grading limits shall remain within the property boundary unless formal arrangements have
been made with adjacent property owners.
B. The Grading and Drainage Plan shall be revised to include additional catch basin structures
along the entrance and frontage road as depicted on attached Exhibit B.
C. The Grading and Drainage Plan shall be revised to re-direct two catch� basins toward the
exisring diversion storna sewer within Brookdale to maximiz,e the amount of parking lot
runoff directed toward the regional storm water management facility. This design revision is
depicted on Exhibit B.
D. Exhibit B identifies a segment of existing corrugated metal pipe (CMP) that is currently
proposed to remain in-place. This segment of CMP pipe has been in service for over 40
years and should be replaced prior to construcring the new parking lot. The remaining
segments of downstream storm sewer are newer concrete pipe.
E. An NPDES construction site erosion control permit must be obtained from the Minnesota
Pollution Control Agency prior to disturbing the site.
F. The applicant rnust obtain approval of a Storm Water Management Plan and Erosion
Control Plan from the Shingle Creek Watershed Management Commission prior to
initiating site construction. The applicant sha.11 submit the application materials to the
City. The City will forward the application to the Watershed Commission.
G. The applicanYs engineer shall provide storm water drainage calculations for the proposed
private storm sewer prior to application for a building permit.
H. Abandoned sections of storm sewer shall be removed or sand filled in accordance with City
specifications. The storm sewer conveying runoff from the Macy's building shall be
connected to the storm sewer segment described in Item D above prior to abandoning the
CMP storm sewer.
The above comments are provided based on the information submitted by the applicant at the time of
this review. Subsequent approval of the final plat and site plans may require additional modifications
based on engineering requirements associated with final design of the water supply, storm drainage,
sanitary sewer, final grading and geometric design as established by the City Engineer and other
public officials having jurisdiction over approval of the final site plans.
Page 6 of 6
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MINUTES OF THE PROCEEDINGS OF THE PLANNING COMMISSION
OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF
HENNEPIN AND TI� STATE OF MINNESOTA
REGULAR SESSION
AUGUST 16, 2007
CALL TO ORDER
The Planning Comxnission meeting was called to order by Chair Pro Tem Roche at 7:01 p.m.
ROLL CALL
Chair Pro Tem Tim Roche, Commissioners Gary Ford, Michael Parks, and Della Young were
present. Also present were City�Councilmember Mazk Yelich, City Manager Curt Boganey,
Community Development Director Gary Eitel, Secretary to the Planning Commission/Planning
and Zoning Specialist Ronald Warren, and Planning Commission Recording Secretary Rebecca
Crass. Chair Sean Rahn and Commissioner Ra.chel Lund were absent and excused.
Mr. Warren introduced the new Coxnmunity Development Director Gary Eitel to the
Commission.
APPROVAL OF MINUTES JULY 26, 2007
There' was a motion by Commissioner Parks, seconded by Commissioner Ford, to approve the
minutes of the 7uly 26, 2007 meeting as submitted. The motion passed. Cornmissioner Young
abstained as she was not at the meeting.
CHAIR'S EXPLANATION
Chair Pro Tem Roche explained the Planning Commission's role as an advisory body. One of
the Commission's functions is to hold public hearings. In the matters concerned in these
hearings, the Commission makes recommendations to the City Council. The City Council makes
a11 final decisions in these matters.
APPLICATION NO. 2007-016 ADAM MAIER fLEONARD. STREET AND DEINARD. PAl
Chair Pro Tem Roche introduc� Application No. 2007-016, a request for Special Use Pemut
approval to operate a childcaze facility in the commercial building located at 6415 Brooklyn
Boulevard.
Mr. Warren presented the staff report describing the location of the property and the proposal..
(See Planning Commission Information Sheet dated 8-16-07 for Application No. 2007-016.)
The property in question is a triangulaz shaped parcel zoned C-1 (Service/Office) and contains an
approximate 8,600 sq. ft. office building that the applicant intends to convert into the cluldcare
facility. The applicant's plan is to rnodify the building for use as a daycare which will be subject
to building code and program licensing requirements. Group daycare faciiities are listed as
special uses in the C-1 zoning district.
Page 1
8-16-07
PUBLIC HEARING APPLICATION NO. 2007-016
There was a motion by Commissioner Pazks, seconded by Commissioner Ford, to open the
public hearing on Application No. 2007-016, at 7:27 p.m., The morion passed unanimously.
Chair Pro Tem Roche called for comments from the public.
The applicant Adam Maier,lSQ South 5�' Street, Minneapolis, Attorney for Arena Leaming
Center, introduced himself to the Commission and stated that his client Antonio Smith will be in
compliance with all issues raised in the staff report. Mr. Maier also stated that his client will be
making repairs to the fence on the south side of the property. He added that• their license with
the Department of Human Services allows for the care of a maximum of 144 children at any time
and the center will pmvide caze on a 24 hour basis.
Chair Pro Tem Roche asked for clarification on the hours of operation. Mr. Maier responded
that it is a 24 hour facility and different children will be serviced during the day than during the
overnight hours.
Chair Pro Tem Roche asked for the maximum number of hours that a child is allowed to stay at
the facility. Mr. Smith responded that the maximum number of hours is ten and this facility will
serve families that work a variety of differe�t hours including over night shifts.
Chair Pro Tem Roche asked the applicant to reconsider increasing the size of the outdoor play
area in light of the number of children being served. Mr. Maier responded that they would
reconsider that issue. Mr. Warren explained that there is nothing in the city ordinances that
regulate the size of outdoor play areas in licensed daycares. He did suggest that a condition of
approval could be added to regulate the hours of the outdoor play area.
No other persons from the public appeared before the Commission during the public hearing on
Application No. 2007-016.
CLOSE PUBLIC HEARING
There was a motion by Commissioner Parks, seconded by Commissioner Ford, to close the
public hearing on Application No. 2007-016, at 7:42 p.m. The motion passed unanimously.
The Chair called for further discussion or questions from the Commissianers.
The Commissioners interposed no objections to approval of the Application.
ACTION TO RECOMMEND APPROVAL OF APPLICATION NO. 2007-01b ADAM
MAIER ((LEONARD. STREET AND DEINARD. PA)
There was a motion by Commissioner Parks, seconded by Commissioner Ford, to recommend to
the City Council that it approve Application No. 2007-016, subxnitted by Adam Maier (Leonard,
Street and Deinard, PA) for Special Use Permit approval for the Arena Early Leaming Center,
Inc. to operate a childcaze facility in the commercial building located at 6415 Brooklyn
Boulevard, subject to the following conditions:
Page 2
8-16-07
1. The Special Use Permit is granted for a group daycare facility or childcaze facility
subj ect to the granting of a license for this operation by the Minnesota
D artment of
ep Human Services. The applicant shall show roof of this licensing
P
and have a current copy of said licensing on file with the city.
2. The daycare facility as proposed by the applicant meets the Standards for Special
Use Permits contained in Section 35-22U, Subdivision 2b of the Zoning
Ordinance. Furthermore, the proposal is considered to be compatible with,
complimentary to and of comparable intensity to uses allowed in the C-1 zoning
district and that the proposal is planned and designed to assure that generated
traffic will be within the capacity of available public facilities and will not ha.ve
an adverse impact upan these facilities, the immediate neighborhood or the
community.
3. The Special Use Permit is subject all applicable codes, ordinances and
I regulations. Any violation thereof may be grounds for revocation.
4. Any expansion or alteration of the proposed use beyond that contained in this
submittal shall require an amendment to this Special Use Pernut.
5. The play area shall be provided in a manner consistent with Section 35-411,
Subdivision 6 of the city's zoning ordinance and be continually maintained in this
manner.
6. The required 6 ft. high opa�ue screemng requued along the south property line
shall be repaired and maintained in a manner consistent with the requirements of
the city ordinance.
7. Building plans for remodeling and occupancy of this building are subject to
approval of the Building Official prior to the issuance of these permits.
Voting in favor: Chair Pro Tem Roche, Commissioners Ford, Parks, and Young. The
motion passed unanimously.
The Council will consider the application at its August 27, 2007 meeting. The applicant must be
present. Major changes to the application as reviewed by the Planning Commission will require
that the application be returned to the Commission for reconsideration.
Mr. Warren asked the Commission to consider holding a joint public hearing for Planning
Commission Application Nos. 20Q7-014 and 2007-01 S since they are companion applications.
The Commission voiced no ob'ection to a'oint ublic hearin
J J P S
APPLICATION NO. 2007-014 HANSON THORPE PELLINEN OLSON, INC.
Chair Pro Tem Roche introduced Application No. 2007-014, a request for Preliminary Plat
approval to combine six existing tracts of land within Brookdale Center and proposed vacated
right of way�to create three new pazcels of land, one of which is the proposed site for Wal-
s
Page 3
8-16-07
I
Mart. Brookdale Center is zoned PUD/C-2 (Planned Unit Development/Commerce) and is
also located in the Central Commerce (CC) Overlay district.
Mr. Warren presented the staff report describing the location of the property and the proposal.
(See Planning Commission Information Sh�t dated 8-1b-07 for Application No. 2007-014 and
the Director of Public Works' memo dated 8-13-07, attached.)
APPLICATION NO. 2007-015 BROOKDALE CENTER
Chair Pro Tem Roche introduced Application No. 2007-015, a request for Planned Unit
Development (PUD) Amendment to allow for the construction of an approximate 184,600 sq.
ft. Wal-Mart Supercenter alang the north side of Brookdale Shopping Center.
Mr. Warren presented the staff report describing the location of the property and the proposal.
(See Planning Commission Information Sheet da.ted 8-16-07 for Application No. 2007-015 and
the Director of Public Works' memo dated 8-13-07, attached.) The plan involves demolition of
the existing vacant two sto .ry retail building that formerly housed the Mervyn's Department
Store and additional retail space westerly of the north mall entrance. The property is zoned
PUD/C-2 (Planned Unit Development/Commerce). Mr. Warren pointed out that a Planned
Unit Development Rezoning from C-2 (Commerce) to PUD/C-2 and development plan approval
for the expansion, redevelopment and rejuvenation of Brookdale Center was approved by the
City Council under Resolution No. 99-37 on March 8, 1999. This application is an amendment
to that original Planned Unit Development approval.
PUBLIC HEARING APPLICATION NO. 2007-014 HANSON THORPE PELLINEN
OLSON. INC. AND APPLICATION NO. 2007-015 BROOKDALE CENTER
There was a motion by Commissioner Parks, seconded by Commissioner Ford, to open the
public hearing on Application Nos. 2007-014 and 2007-015 at 9:18 p.m. The motion passed
unanimously.
Chair Pro Tem Roche called for comments from the public.
Mr. Charles Howley, HTPO Engineering, 7510 Marketplace Drive, Eden Prairie, addressed the
Commission and stated they are happy to be here and are excited about coming to the Brookdale
Mall. He added that they admit this is a difficult layout but plan to do what is necessary to
comply with any recommendations made by the Commission. Mr. Howley pointed out some
modifications being made to the plan submitted in the area of the dumpsters. He added they will
screen the loading docks as suggested in the staff report and provide appropriate screening of
trash containers. Also they will flip flop the grocery and general merchandise areas and the
garden center will now be located in the south side of the east elevation.
Mr. Howley addressed No. 5 in the Conditions of approval and stated that there is no problem
with a dedication of a trailway but would request that the easement for the trailway be less than
30 ft. as indicated on the Engineer's report.
Page 4
$-16-07
Commissioner Young asked for clarification &om the applicant regarding the size of the trailway
easement. Mr. Howley pointed out the location of the easement as it relates to the existing trail
and pedestrian bridge and explained their reason for requesting a less than 30 ft. easement.
Public Works Director Todd Blomstrom addressed the Commission and explained that it would
be difficult to accept a modification to the size of the trailway easement since the trailway has
not been desi�ed at this point. He would prefer not having an open ended agreement with the
applicant and would anticipate further discussion with the applicant to determine an acceptable
easement size.
Chair Pro Tem Roche asked Mr. Howley why the entrance to County Road 10 was being closed.
Mr. Howley responded that this a prototypical building and its layout is unique. He explained
that keeping the entrance to County Road 10 open created an unsafe situation so the decision
was made to seek closure of the entrance for better circulation and traffic flow.
Mr. Dan Cetina, 4000 Ponce de Leon Blvd, Coral Gables, Florida, introduced himself to the
Commission as the owner of Brookdale and stated that two years ago they began discussions
with Wal-Mart regarding this development and are looking forward to this being a positive
approach to Brookdale. He explained further the plans they took to arrive at the decision to
locate a Wal-Mart on the site formerly occupied by Mervyn's. He added that this will be a
prototype store and they feel very good about the addition of Wa1-Mart to the Brookdale Mall.
Chair Pro Tem Roche asked what the time line is regarding the beginning of construction. Mr.
Howley stated that they plan to go to bid in the spring of 2008 which would mean construction of
the store would be complete in the spring of 2009.
Mr. Pete Houser, 11321 Landing Road, Eden Prairie, stated that the true owner of the Midas lot
is himself. He stated that he just received the report and has not had the time to review the
proposal with his attorney and would like to reserve the right to make comment on Application
No. 2007-014 (Preliminary Plat) at a later time.
Mr. Cetina responded that they showed Mr. Houser the Wal-Mart plans about nine months ago
as well as several other major tenants.
Commissioner Parks left the meeting at 9:45 p.m.
The Cammission took a five minute recess at 9:46 p.m. The meeting reconveyed at 9:51 p.m.
Mr. Houser clarified that he had received a notice regazding Planning Commission No. 2007-015
but he has not had any conversations with the Brookdale owners regarding Planning Commission
No. 2007-014 and that what he wishes for is time to address this with his attorney. Mr. Warren
clarified that notices aze not sent for Preliminary Plats but rather a publication is made in the
newspaper. Mr. Houser stated that his comment was meant in response to Mr. Cetina's comment
that he had been notified by the ma1l owners regazding the Applications.
Page 5
8-16-07
Mr. Tom Barrett, 333 South 7 Street, Minneapolis, legal counsel representing Sears introduced
himself. He explained that they have requested a layover regarding a decision on this application
so that he and his client could have time to review the accuracy of the submission with respect to
the current operations of Sears which would give Sears time to respond to the facts. Mr. Barrett
stated that Sears has not had time to determine what impact this development will have on Sears
specifically as it relates to parking and they desire to do so. Mr. Barrett further explained that he
and his client feel that their parking spaces are being stolen from them and they would like time
to develop the facts and ask that this application be delayed until the next Planning Commission
meeting.
Chair Pro Tem Roche reviewed a memo received from the City Attorney regarding the
applications and a letter from the attorney for Sears. He reminded the Planning Commission that
Mr. Charlie LeFevere advised the Commission that they are not required to attempt to resolve
these legal issues raised but rather should consider the Planning Commission Applications based
on their merit as they relate to city ordinance requirements.
Ms. MaryAnn Beneke, 2412 Parkview Boulevard, Golden Valley, stated she is adamantly
against Wal-Mart coming to this area since she feels Wal-Mart pays low wages, has bad
employee practices and drives other businesses away She questioned why the information
regarding the public hearing was not received by her. Mr. Warren clarified that the City is
required to publish notice of the public hearing in its official newspaper and notify property
owners within a 350 ft. radius of a subject property regarding public hearings. He also added
that the issues Ms. Beneke addressed regarding Wal-Mart coming to Brooklyn Center are not
zoning related.
Mr. Mark Allen, 5427 Twin Lake Boulevard, stated he is Chair of the Brooklyn Center Business
Association and a business owner in Brooklyn Center. He reminded the Commission that this
meeting is to consider a Preliminary Plat and a PUD Amendment and whether or not people
`like' Wal-Mart should not be a factor in approval. He added that he recently approached City
Manager Curt Boganey regarding how development can take place in Brooklyn Center and he
feels that this development will have are positive impact on the area and an added benefit to
those that live and work in the area. He would like to see this proposal move forward.
Mr. Howard Roston, 220 South 6 Street, Minneapolis, an attorney representing Talisman and
the Brookdale Mall, he explained that this proposal should not have surprised Sears since the
applicant has been corresponding with them since September of 2006 regarding this proposal.
He stated that it is disingenuous of Sears to come forward at this point requesting an extension
since they were informed of Brookdale's plans. Mr. Roston further stated that Sears has no right
to dictate what should take place on this site and shouldn't hold up the process.
Commissioner Ford asked the applicant to clarify who `owns' particular parking spaces on the
site and if there would be enough parking for Sears with the addition of the Wal-Mart store. Mr.
Cetina explained that if you take out the spaces tied to the Sears site, it still leaves enough
parking spaces to meet and exceed the minimum parking requirements.
Mr. Howley stated that if you look at the Wal-Mart tract by itself, the parking ratio is 5.0 spaces.
Page 6
8-16-07
Mr. Barrett responded that the information stated above is exactly what he and his client wish to
review prior to a decision being made.
Mr. Mike Videen, 6215 Brooklyn Drive, Brooklyn Center, stated that they have seen a slow
decline of retail in Brooklyn Center and he believes that Wa1-Mart will be a great asset to the
community and he hopes that the plan will go forwazd.
Commissioner Parks returned to the meeting at 10:27 p.m.
Mr. Will Dahn, 5733 Knox Avenue North, stated that he has been a resident since 1953 and has
watched Brookdale grow. He stated that Wal-Mart has a reputa.tion of putting small businesses
out of business. He added that he has seen several lazger stores also close in the City but he
believes that bringing Wal-Mart to Brooklyn Center would be a positive move. He also pointed
out that Sears may have a legitimate azgument about its parking.
No other persons from the public appeared before the Commission during the public hearing on
Application No. 20Q7-014.
CLOSE PUBLIC HEARING
There was a motion by Commissioner Parks, seconded by Commissioner Young, to close the
public hearing on Application Nos. 2007-014 and 2007-015, at 10:30 p.m. The motion passed
unanimously.
The Chair called for fiuther discussion or questions from the Commissioners.
Commissioner Parks stated that he believes the building could be configured a little better
thereby not requiring traffic to be rerouted from County Road 10. The plan submitted appears to
limit traffic flow. He feels the building elevations submitted are not sufficient to show how the
building will transition with and into existing buildings at Brookdale. He adds that he has a
concern with truck deliveries in the area indicated on the plan.
Chair Pro Tem Roche stated that he has put trust in the City Staff and believes tha.t any minor
alterations to the plan would be addressed by City Staff, however, he would like to see this
proposal go forward for approval by the City Council. He does acknowledge some of the
concerns stated by Commissioner Parks but feels that this can work. He added that by creating a
walkway from the Transit Hub aeross County Road 10 would be an improvement.
Commissioner Parks fiuther explained how he feels the building cauld be better laid out on the
property.
Commissioner Young stated that it would be nice to have an upper scale merchant coming to this
location but the Wa1-Mart seems to be a better fit to the azea. She added that this is certainly a
better use than leaving the mall with vacant space and she sees no reason to not approve the
applications based on the information presented by City Staff.
Page 7
8-16-07
Commissioner Ford stated that he agrees with Commissioner Parks regazding concems with the
building layout but also agrees with Commissioner Young regarding a positive appmval of the
arpplication.
Commissioner Young suggessted that a condition of approval could be added regarding the
walkway and a fence.
The Commissioners interposed no objections to approval of the Application.
ACTION TO RECOMMEND APPROVAL OF APPLICATION NO. 200'7-014 HANSON
THORPE PELLINEN OLSON. INC.
There was a motion by Commissioner Young, seconded by Commissioner Ford, to recommend
to the City Counqil that it approve Application No. 2007-014, submitted by Hanson Thorpe
Pellinen Olson, Inc. for Prelixninary Plat approval to combine six existing tracts of land within
Brookdale Center and proposed vacated right af way to create three new parcels of land, one
of which is the proposed site for Wal-Mart, subject to the following conditions:
1. The final plat is subject review and approval by the City Engineer.
2. The fmal plat is subject to the provisions of Chapter 15 of the City Ordinances.
3. The area indicated as County Road 10 right of way shall formally be vacated prior
to final plat approval.
4. Building permits for the construction of the Wa1-Mart Supercenter comprehended
under Planning Commission Application No. 2007-015 shall not be issued until
the final plat has been approved by the City Council and filed with Hennepin
County.
5. The applicant shall dedicate a trail and sidewalk easement through the proposed
Lot 3 from the regional trail alang Shingle Creek Pazkway to the existing
pedestrian bridge over T.H. 100 approved by the City Engineer as part of the
Final Plat.
6. The Fina1 Plat shall include the dedication of public dra.inage and utility
easements in the manner and location approved by the City Engineer.
7. The applicant sha11 provide an updated and executed copy of cross access
agreements with various property owners within Brookdale in a manner
acceptable to the City Attomey prior to Final Plat approval.
Voting in favor: Chair Pro Tem Roche, Commissioners Ford, and Young.
Vating against: Commissioner Parks
The motion passed.
Page 8
8-16-47
The Council will consider the application at its August 27, 2007 meeting. The applicant must be
present. Major changes to the application as reviewed by the Planning Commission will require
that the application be returned to the Commission for reconsideration.
ACTION TO RECOMMEND APPROVAL OF APPLICATION NO. 2007-015
BROOKDALE CENTER
There was a motion by Commissioner Ford, seconded by Commissioner Young, to approve
Planning Commission Resolution No. 2007-03 regarding the recommended disposition of
Planning Commission Application 2007-015 subrnitted by Brookdale Center.
Voting in favor: Chair Pro Tem Roche, Commissioners Ford, and Young.
Voting against: Commissioner Parks
The rnotion passed.
The Council will consider the application at its August 27, 2007 meeting. The applicant must be
present. Major changes to the application as reviewed by the Planning Commission will require
that the application be returned to the Commission for reconsideration.
OTHER BUSINESS
There was no other business.
ADJOtTRNMENT
The meeting adjourned at 10:50 p.m.
Chair
Recorded and transcribed by:
Rebecca Crass
Page 9
8-16-07
z.
COUNCIL ITEM MEMORANDUM
I
TO: Curt Boganey, City Manager r
FROM: Ronald A. Warren, Plannmg and Zoiung Specialist
ay i
DATE: August 21, 2007
SUBJECT: Planning Commission Application No. 2007-015
Recommendation:
It is recommended that the City Council, following consideration of this matter, approve the
applicaYion subject to the conditions and considerations recommended in Planning Commission
Resolution No. 2007-03. Attached for the City Council's cons ideratiun is:
1. Resolution Regazding the Disposition of Planning Commission Application No.
2007-015.
Background:
On the August 27, 2007 City Council Agenda is Planning Commission Application No. 2007-
O15 submitted by Brookdale Center requesting a Planned Unit Development Amendment to
allow for the construction of an approximate 184,600 sq. ft. Wal-Mart Supercenter along the
north side of Brookdsale Shopping Center. This matter was considered by the Planning
Commission at their August 16, 2007 meeting and was recommended for approval.
Attached for your review are copies of the Planning Commission Information Sheet for
P1
annin Commission A lication No. 2007-015 and also an are showin �the location of
I a ma
b PP P S
the property under consideration, various sit� and building plans for the proposed
development, the Planning Commission minutes relating to the Commission's consideration of
this matter and other supportiag documents
Budget Iss�es: There are no budget issues.
Application Filed on 7-19-07
City Council Action Should Be
Taken By 9-17-07 (60 Days)
Planning Cammission Information Sheet
Application No. 2007-015
Applicant: Brookdale Center
L.ocation: Brookdale Center
Request: Planned Unit Development Amendment
The applicant, Bmokdale Center, is seeking a Planned Unit Development Amendment to a11ow
for the construction of an approximate 184,600 sq. ft. Wal-Mart 5upercenter along the north side
of the Brookdale Shopping Center. The plan would involve the demolition of the existing vacant
two story retail building that formerly housed the Mervyn's Department Store. The Wal-Mart
building would be constructed in this location and to the north and would be attached to the
existing Brookdale Center having an interior access from the store to the mall. Additional vacant
retail space westerly of the north ma11 entrance would also be demolished to accommodate the
new development. Exterior access to the new Wal-Mart would also be provided at the east end
of the store.
The property in question, Brookdale Ceater, is zoned PUD/C-2 (Planned Unit
DevelopmendCommerce) and is bounded on the north by County Road 10; on the east and
southeast by T.H. 100; aad on the west and southwest by Xerxes Avenue North.
It is the applicant's plan to create a new 621,485 sq. ft. (14.27 acres) pazcel of land for the Wal-
Mart site. They propose new combinations and divisions of existing land pazcels at Brookdale
under Planning Commission AppIication No. 2007-014 for Preliminary Plat appmval which is a
companion application to this application.
A Planned Unit Development Rezoning from C-2 (Commerce) to PTJD/C-2 and development
plan approval for the expansion, redevelopment and rejuvenation of Brookdale Ceriter was
approved by the City Council under Resolution No. 99-37 on March 8, 1999. Attached is a copy
of the resolution containing the various findings and conditions of approval for that proposal
(Planning Commission Application No. 99001). That plan included reconfiguration of the west
end of the mall to include an 89,650 sq. ft. second floor to include a 20 screen, 4,252 seat movie
theater; a 13, 20U sq. ft. addition to the north entrance to the mall for two restaurant sites and a
new food court; 13,000 sq. ft. addition for general retail use and revised entry way alang the
southerly side of the complex; a 4,650 sq. ft. &eestanding Applebee's restaurant and conceptual
approval for three other buildings shown on the plan as buildings No. 3, 4 and 5 subject to review
and approval in the form of a PUD amendment by the Pla�ning Comrnission and City Council.
Most of these improvements were completed by Brookdale Center except for the second story
iheater.
j 8-16-07
Page 1
Also, a PUD amendment was approved by the City Council on July 26, 2004 (Council
Resolution No. 2004-97} for a 4,195 sq. ft. Dairy Queen Grill and Chill on the building No. 2
site. This proposal was.never built and the site remains undeveloped and will now be
incorporated into the Wal-Mart site. The cwrent request is, therefore, an amendment to the
originai PUD approval.
As the Commission is awaze, the PUD process involves a rezoning of land to the PUD
designation followed by an Alpha Numeric designation of the underlying zoning district. This
underlying zoning district provides the regulations governing uses and structures within the
Planned Unit Development. The rules and regulations governing that district {in this case C-2)
would apply to the development proposai unless the City were to detennine that another standard
or use would be appropriate given mitigating circumstances that are offset by the plans submitted
by the developer. One of the purposes of the PUD district is to give the City Council the needed
flexibility in addressing development and redevelopment problems.
Regulations goveming uses and structures may be modified by conditions ultimately imposed by
the City Council on the development plans. The PUD process involves a rezoning of land and,
therefore, is subject to meeting the City's rezoning evaluation policy and review guidelines that
are contained in Section 35-208 of the City's Zoning Ordinance. Also, proposals must be
consistent with Section 35-355 of the City's Zoning Ordinance, which addresses Planned Unit
Developments. Attached for the Commission's review are copies of Section 35-208 and 35-355
of the City's Zoning Ordinance for review. As mentioned previously, the City Council adopted a
resolution approving the overall PUD for Brookdale Center. That resolution (City Council
Resolution No. 99-37) contains the various findings and considerations necessary for approving
the PUD. These findings and considerations were made given the applicant's use at that time and
this amendment is to acknowledge the building details and locations of an amended pmposal
within the PUD zoning district. It is not ne,cessary for the Planning Commission and City
Council to reapprove the original Planned Unit Development Amendment, however, approvai of
this Planned Unit Development Amendment should acknowledge compatibility with the policy
and review guidelines of the previously mentioned Section 35-248 and also the provisions of
Section 35-355 of the Zoning Ordinance.
It is believed that the proposed amcndment submitted by the applicant in this case is in keeping
with the findings and considerations associated with the original approval. This proposed
amendment can be considered consistent and compatible with surrounding land uses in this area.
The atnended development plan being submitted will, like the original approval, be consistent
with the modifications to the ordinance that were allowed at that time. No other modifications
from. the underlying zoning requirements aze being sought by the applicant with this Planned
Unit Development Amendment. Of note is that the applicant is no longer seeking to deviate
8-16-07
Page 2
from the 15 ft. green strip requirement along the County Road 10 right of way and will be
pmviding sufficient green strip to meet this underlying zoning requirement. It is believed that the
proposed use of the property will be consistent and compatible with the immediate area
surrounding the property as well as uses in the general vicinity and will be consistent with the
Planned Unit Devetopment Amendment approval granted under Resolution No. 99-37.
Attached for the Commission's review is a copy of the originat Brookdale PUD site plan from
1999.
SITE AND BUIL.DING PLAN PROPOSAL
As mentianed, the proposed Wa1-Mart will be approximately 184,600 sq. ft. and be located and
attached to the north side of the eacisting Brookdale Ma11 where the former Mervyn's Deparkment
Store is to be demolished. Two future building sites at the easterly end of the center will
continue to be comprehended for future development through the PUD amendment process.
ACCESS/PARKING
Access to Brookdale Center is proposed to be changed. The Northway Drive access to
Brooktiale at County Road 10 would be closed. A median break in County Road 10 serving
Northway Urive would continue as would the traffic signal and pedestrian crossings at this
location. The left turn lane for west bound County Road 10 would have to be removed. The
applicant is requesting the right of way pmvided for access to Brookdale be vacated and
incorporated in to the Brookdale site. This will be considered during the platting pmcess.
The City is seeking the dedication of additional right of way at the Shingle Creek
Pazkway/County Road 10 access to Bmokdale to accommodate revisions to this area. Access
within Brookdale will be mod�ed as well in the azea of the Kohl's access to better define and
delineate access to Brookdale within the parking lot area. Concrete delineation with defined tum
lanes will be provided between the two future building sites along the easterly portion of the
perimeter road. The perimeter mad will be modified thraugh the to be vacated portion of the
closed Northway Drive entrance. The balance of the perimeter mad will remain in its current
location other than where modifications are made on the east end. Parking will be revised to the
east of the proposed Wal-Mart building including within the Wal-Mart property itself. Concrete
delineation and parking protectors serving as landscape istands will also be provided.
Parking will be provided on the basis of 4.5 parking spaces per 1,000 sq. ft. of gross leasable area
as was established for Brookdale at the time the original Planned Unit Development was
approved in I999. Pazking required for Brookdale, based on a total of 1,I20,810 sq. ft. of gross
leasable space as indicated on the site plan— paxking layout, is 5,044 parking spaces. There aze
to be provided 5,137 parking spaces given the parking plan that is to be implemented, a slight
surplus given the estabtished parkin� formula for Brookdale. It should be noted that Brookdale
showed the ability to provide 5,700 parking spaces as part of the 1999 PIJD. The executed PUD
agreement dated December 9, 1999 acknowledges this ability and states that in the event it is
determined by the City Cauncil that the existing parking is not adequate, the owners of the
8-16-07
Page 3
properties shall redesign and reconfigure parldng areas and construct such additional parking
facilities as are necessary to provide 5,700 parking spaces on the subject properties. This
provision will continue with this amendment as well.
Green strips exceeding 15 ft. along the County Road 10 right of way will be provided in contrast
to what was originally proposed with the 1999 expansion. We are recommending wrought iron
fencing and masonry piers as has been used tYimug,hout the city in other projects to in this case
hElp control pedestrian traffic along County Road 10 and to chann.el it to crosswalks and
pedestrian accesses to and through the Wal-Mart site.
A traffic impact study for the expansion of Brookdale dated July 22, 2007 was prepazed by Spack
Consulting and is attached for the Commission's review (narrative portion only). The study was
for the purpose of determining how public streets around Brookdale operate currently and will
operate with the addition of traffic with the development; the impacts of closing the southem leg
of the County Road 10/Northway Drive intersection; the operation of the Brookdaie interior ring
road; and possible utiprovements. Their conclusions are that the public streets/intersections will
operate at an acceptable level of service during the PM peak hour with the expansion; site
alterations wiU not negatively impact the County Road 10lShingle Creek Pazkway, Xerxes/56�'
Avenue and Xerxes/55�' Avenue intersections that serve as access points to Brookdale; no
mitigation measures aze necessary to accommodate the traffic changes that will occur with the
expansion other than possible signal timing at iutersections particularly at the altered•County
Road 10/Northway Drive intersection. Physical alterations at the County Road 10/Northway
Drive intersection will need to be accomplished to conveit this to a true T intersection with the
closing of the south leg: This will involve eliminating appropriate turn and through lanes.
GRADING/DRA]NAGE/[JTIII.TTIES
The applicant has provided grading, drainage and utility plans that are being reviewed by the
Director of Public Works/City Engineer. His written comments are a,ttached for the
Commission's review and consideration in lus memo dated 8/13/07.
Sanitary sewer, storm sewer and water main, along with a gas line cuirently exist in the parking
lot north of the vacant forrner Mervyn's building will have to be reloca#ed to avoid being beneath
the proposed Wal-Mart SupercenteT Their plan is to relocate these utilities azound the peri.meter
of the new building. Sanitary sewer and water connections to the new building will be along the
west side.
Pazking lot improvements for the Wal-Mart site are planned to the east of the building. As
mentioned previously, modifications to the perimeter road with a new intersection neaz the
Shingle Creek Parkway/County Road 10 entrance aze also planned at the perimeter road
intersection with the access to Kohl's and Boulevard's Bar and Grill to be redone as well. This
intersection will be shifted to the south slightly and connect to the perimeter road between the
two future building pad sites in this location. It will allow for the two legs of this intersection to
line up dir�tly across from one another. A new parking configuration is planned and concrete
8-16-07
Page 4
curb and gutter deliberators and channeli2ation will be pmvided along with landscape island
areas.
Erosion control will need to be provided during construction and an appropriate erosion control
plan will need to be submitted for the City Engineer's approval.
For the most part, the site will be served by existing, private utilities, on the Brookdale site which
are connected to existing public facilities. A regional ponding facility was developed at the time
Brookdale was expanded in 1999-2000. No ponding areas aze proposed with this development
and it must be verified that the existing regional pond will be sufficient. The applicant must
obtain approval of a Storm Water Management Plan and Erosion Control Plan from the Shingle
Creek Watershed Management Commission prior to site constntction. The applicant is to submit
the application materials to the City Engineering Department which will in tum be forwarded to
the Watershed Commission.
The Director of Public Works makes a good point in his memo about transient overnight parking
and overnight RV pazking at the Wa1-Mart site. Apparently this activity is allowed by Wa1-Mart
at some of their sites. He notes that there is a lack of sanitary sewer and other facilities within
the Brookdale Mall site and this should be prohibited. This is a zoning concern as well in that a
recreational vehicle park is not comprehended by the Zoning Ordinance in this azea and such
activity should be prohibited as part of any PUD approval.
LANDSCAPING
The applicant has submitted a landscape plan in response to #he landscape paint system utilized
by the Planning Commission for evalua,ting such plans. Landscaping was provided at the time
Brookdale was expanded and redeveloped and the landscaping proposed now is related to the
Wal-Mart expansion. The Wal-Mart site is 14.27 acres in azea and is required to have 840
lanscape points. The applicant pmposes to provide 8401andscape points by preserving some
existing deciduous and coniferous trees and to pmvide additional iandscaping meeting the point
system requirement. The proposal is to pmvide landscaping along the County Road 10 green
strip, along the north side of the Wal-Mart building and in landscape island areas in the pazking
lot. Thirty six new shade trees to include Swamp White Oak, Autumn Blaze Maple and
Redmond Linden are proposed, seven of which would be located in the County Road 10 green
strip and the balance in landscape islands within the parking lot and along the north side of the
building. Thirty two coniferaus trees such as Black Hills Spruce and Swiss Stone Pine are
proposed to be intermixed with existing coniferous trees on the site. Fifty-two deeorative trees
including Red Jewel Crab Apple and Spring Snow Crab Apple are interspersed with the larger
shade and coniferous trees througttout the site. Four hundred twenty shrubs are proposed
including Buffalo Juniper, Crisp Leaf Spirea, and Neon Flash Spirea aze proposed within the
landscape island areas.
The landscape plan appeazs to be in order and can be considered acceptable for this development,
meeting the 840 points for tlus size parcel.
8-16-07
i Page 5
BUII.DING
The applicant has submitted building elevations for the proposed Wal-Mart Supercenter.
Building materials include brick veneer in two colors, cultured stone, masterblock structural,
integral colored split face CMU and EIFS uniformly azound the sides of the building. An
outdoor �arden center with masonry piers and wrought iron screening is included. Two main
entrance points to the exterior are provided along the front elevation with spandrel glass and
standing seam metal roof. It should be noted that roof top and on ground mechanical equipment
must be screened from view. Parapet walls, if lugh enough, can be used for screening of roof top
mechanical equipment. Although not part of the approval process, it should also be noted that
wall signs may not project above the roof line of the building.
A restricted use loading area at the southeast comer of the building is proposed to remain in an
azea that was shielded by vacant store area that is proposed to be demolished. The detail of this
area shows a concrete masonry unit scre�n wall to screen this azea. The loading area to the west
of the buiiding where a six bay receiving dock is to be located, should also have a concrete
masonry unit screen wall high enough to screen vehicles and teailers in this area. Additional
screening may be in order to the northwest of the truck tum around azea for screening purposes.
This screening device should be high enough to screen the loading area from view as well.
It is recommended that the Planning Comrnission closely review this as to the appropriateness of
the screening. All outside trash container areas including compactors and recycling areas should
also be screening from view.
As mentioned previously, there will be an interior mall access to the Wal-Mart Supercenter
where it is attached with Brookdale Mall. In discussions with the architect he has indicated that
they aze considering relocating the food center and the general merchandise area by flip flopping
the arrangement. This would mean that the building elevations would not accurately depict the
location of the food center, general merchandise azea and garden center, which I assume would
be located at opposite ends. This does not significantly alter the plan nor affect circulation,
parking or other matters. Obviously, these plans would have to accurately reflect the layout prior
to the issuance of building permits.
It should be noted that the site plan calls for two cart storage areas that appear to be within the
vestibules leading to the food and general merchandise areas. Any outside storage of cazts other
than temporariiy at parldng lot corral azeas, would have to be screened frorn view. Clarification
of this point should be sought by the Planning Commission as well.
LIGHTING
No lighting plan has been submitted at this time. It is anticipated that lighting fixtures and foot
candles would be comparable to the exiting lighting within the Brookdale Center. Our concern
is that lighting be directed down on the site and not create glare offsite. Section 35-712 of the
City Ordinances requires that all exterior lighting be required with lenses, reflectors or shades so
8-16-07
Page 6
as to concentrate illumination on the property. lllumination is not perrnitted in intensity level
greater than 10 foo# candles measured at pmperty lines abutting strest right of way or non-
residential property. No glare is allowed to emanate from or be visible beyond the boundaries of
the illuminated premises. It is not anticipated that lighting should be a problem with respect to
tlus plan. The applicant should, however, provide an appropriate lighting plan for review prior to
the issuancc of building permits far this project. The lighting plan should pmvide foot candles
and an indication of proposed lighting fixtures.
PROCEDURE
As painted out previously, this proposal is an amendment to the Planned Unit Dev�lopment
approval granted for the expansion, redevelopment and rejuvenation of the Brookdale Shopping
Center, which was approved by the City Council on March 8, 1999 through Planning
Commission Resolution No. 99-37. As a Planned Unit Development, this proposal is required
to follow the procedures required for the original Planned Unit Development. This requires a
public hearing, which has been scheduled. Notices of the Planning Commission's consideration
have been sent to suYrounding property owners and a notice has also been published in the
Brooklyn Center Sun/Post.
All in all, we believe the plan is in order and consistent with the original Brookdale development
approval and, therefore, we would recommend approval of the amendment. Approval of ttus
applicadon should acknowledge the findings, considerations and conditions that are comparable
to those made in the previous City Council resolution. A dra.ft Planning Commission resolution
is offered for this Commission's consideration. This resolution outlines the Commission's
consideration of tlus matter and also recommended considerations and conditions for appmval.
8-16-07
Page 7
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Member Y introduced the following resolution and moved its.
adoption:
RFSOLUTION N0. 99-37
RESOI:UTIDN REGARDING DISPOSITION OF PL,pNNING COMMISSION
APPLICATION N0. 99001 SUBMITTED BY TALISMAN BR40KDALE, LLC,
'PTHFREAS, Planning Commission Application No. 99001 suhmittr.� by Talisman
Brookdale, LLC proposes a rezoni.ng from C-2 (Commerce) to PUDIC-2 af the Brookdale
Regional Shopping Center which is bounded on the narth by County Road 10, on the east and
south by T. H. 100 and on the west by Xences Avenue North; and
WHEREAS, this proposal comprehends the rezoain; of the above mentioned
property and site and building plan approval for the expaasian; redevelopmeat and rejuvenation
of the Brookdale Regional Shopging Center ta include the following;
1. The reconfi;ura[ion of the west end of� the mall inciuding an 89,650 sq. ft.
second floor to include a 20 screen, 4,252 seat t6eater;
2. An approximate 13,200 sq. ft. addidon ta the north entrance ta the mall for
two restaurant sites;
3. A.n approximate 13,000 sq. ft. addition for general retail use and revised
mall entry way along the sautherly side of the complex adjacent to
Daywn's;
4. A 4, 650 sq. ft. freestanding Applebee's restaurant building along Xerxes
Avenue North, northerly of the 56th Avenue en�ranice to the Brookdale
Center;
S. Conceptual agproval, subject to further Planning Commission and City
Council review a.nd approval, of four additional freestanding restaurant
andlor retail buildings to be locatcd around the perimeter of the shopping
c�ntcr; and
WHEREAS, the Planning Commission held a duly called public hearing on
February 25, 1999, when a staff report and gublic testimony regarding the rezoning and site and
buildin; plan were receiv�d; and
WHEREAS, the Plaaning Commission recommended approval of Application No.
99001 by adopting Planning Commission ResQiution No. 99-0Z on February 25, 1999; and
RESOLUTION NO. 99-37
WHEREAS, the City Council considered Application No. 99001 at its March 8,
1999 meeting; and
WHEREAS, rhe City Council considered the rezoni.ng and site and building pian
request in light of all testimony rcceived, the guidelines for evaluating rezonings contained in
S�ction 35-208 of the Cit}�'s Zoniag Ordinance, the provisions of the Planned Unit Deveiopment
ordinance conta,ined .in Section 35-355, the City's Comprehensive Plan and the Planning
Commission's recommendation.
NOW, '1'HEREFORE, BE iT .RESOLV£D b}� the City Council of the Ciry of
Brooklyn Center to approve Application No. 99001 submitted b Talisman Braolcdale, LLC in
Y
li of the followin consideradons:
g
1• 'The rezoning and Planned Unit Development proposal are compatible with
the standards, purposes a�d int�nt af the Piann�ed Unit Development section
of the Ciry's Zoning Ordinance and will allow for the redevelopment and
rejuvenation of the Brookdale Regional Mall which is a unique development
within the City of Brooklyn Ceat�r and whose viability is considered to be
vital to the stabilization of other commercial properties wi[hia the
communiry.
2. The rezoning and Pianncd Uait Develo ment ro osal will allow for the
P P P
utilizatian of the land in question in a manner which is compatble with�
complimentary to and of comparable intensity to adjacent land uses as well
as those permitted an surrounding land.
3. The utilization of the property as proposed under the rezoning and Planncd
Unit Development proposal will conform with city ordinanca standards for
the most part with the exception of thc followiag allowed variations from
the zoning ordinance which are considered reasonable standards ta apply to
this proposal:
Allow 5 ft. rather tban 15 ft. gre�enstrips at certain locations where
an appropriate 3 to 3 lfi ft. high decorative maso�y wall shall be
instalied to offset negative effects (this standard has bean allawed in
ather areas within the city).
I
RESOLUTION NO. 99-37
Allow a 35 ft., or non-major thoraughfare setback for certain out
building locations based on variances that have been allowed. for
other commercial buildings along major thoroughfares aud seem
appropriate in this location as well.
Allaw a 4.5 parldng spaces per 1,000 sq. ft. of gross ieasabie area
ratber than the 5.5 parking spaces per 1,000 sq. ft. of gross floor
area required based oa the shared pazking analysis previded and on
Urban I.�d 3nstiri��e Methodology ii�dicatiug mazimnm af 5,133
parkiug spaces as being needed for the Brookdale Mall given the
mix of uses and square footages proposed in order to meet the
maximum weekday and weekend hourly demand, which is also ia
keeping with at least taro major regianal malls in the area.
Allow the 60 fc. wide garking dimension standard for 9Q degree
pazking rather than the 63 ft. required separation based on the fact
that Broakdale has previously been allowed to have the 60 ft.
parlong standard and it app�ars that it would work in this si�aaon.
Allow two freestanding signs up to 32fl sq. ft. in azea along T. H.
100 based on the uniqueness of tbe size, diversity of uses and
significance of Brookdale Mall.
Allow an increase from 15 percent ta 20 percent of the allowable
restaurant use without requiring additional parking at Brookdal�
liased oa the uniqueness of Brookdale, the mix of uses and dynamics
of multiple stops per person at .the Center.
4.� The rezoning and Planned Unit Develapment pmposal are considered
compati�le with [he City's Comprehensive Plan for this area of th� city.
5. The rezoning and Plaaned Unit Development appear to be a good utilization
of the property under consideration and the redevelopment and rejuvenation
of HrookdaIe Regional Mall are aa important lon� range use for the axistng
properry and are considered ta be an ass�t ta the community.
RESOLUTION NO. 99-�,L
6. In light of the above considerations, it is believed that the guidelines for
evaluating rezonings �contained in Section 35-208 of the City's Zoning
Ordinance are met and that the proposal is, therefore, in the besi interest of
ttie communiry.
BE TT FURTHER RFSOLVED by the City Council of the City of Brooklyn Cente�
that approval of Application No. 99001 be subject to the follc�wing conditions and considerations:
1. T�e building ptans ar� subject to review and approval by the Building
�Official respect to applicable codes grior to the issuance of permits.
2. Grading; draina,ge and utility plans are subject to review and approvat by
the City Engineer prior to the issuance of permits.
3. A site performance agrcement a.nd supporting financial guarantee in an
amouat to be deteimined based on cost estimates shall be submitted prior
I I to the issuance of building permits to assure completion of all approved site
improvements.
4. Any outside trash disposal facilities and rooftop ar on ground mechanical
equipment,shall be appropriately screened from view.
5. 'The bu�ldings and building additions are to be equipped with an automatic
.fire extinguishing system to meet NFPA standards and shall be connected
to a cen�al monitoring device in accordance with Chapter 5 of the City
Ordinances.
6. An underground irrigadon system sl�all be installed in all new landscaped
3IC'dS LO �dC121i3tC S1tC maintGn��C.
7. Plan approval is exclusive �of all signery, which is subject to Chapter 34 of
the City Ordinances with the exception of allowing two freestanding signs
up to 320 sq. fc. in area along T. H. I00.
8. Plan approval acknowledges a proof of pazking for the Brookdale Shopping
C�nter based on providing 5,700 parldng spaces oa site.
RESOLUTION NO. 99-37
The applicants are allowed to rctain the existing pazking configuration
except where r�quired modifications are to be madc based on building
eacpaasions or addiuons. New pazkiag lot construction or reconfiguration
sbal.l require concrete parking deiineators as approved by the City Engineer.
9• The applicant shall submii as built surveys of the property, improvements
and utility service lines prior to release of the performance guarantee.
10. The pmperty �owner sball eater ia �a easem�ni agreement for ma�nrP„an�
and inspection of utility and swrm drainagc systems as approved by the
City Engineer prior to the issuance of p�rmits.
I1. All work performed and materials used for cons�uction of utilities shall
conform ro the Ciry of Brookiyn Center's standard specifications and
details.
12. Approval of the application is subject to the review and approval of the
Shingle Creek Watershed Managemeat Commission with respect to storm
drainage systems. E�ective compensating storage shall be appro�ed prior
to [he coastruction and filling far the propased building No. 5 on the site
P�•
13. The applicant shatl enter into a devclopm�nt agrecme� with the City of
Broaklyn Center to be rewiewed and agproved by the City Attorney prior
to t�e issua�ce of building permits. Said agreement shall aclmowledge the
various modificarions to city ordinan�ces .aad the rationale for allowing such
deviations by the City Couacil and the conditions of approval to assure
compliance with the approved development plans.
14. Plan approval is granted for the Applebee's Restauraat building as
presenud (Building No. 2 on the site plan).
15. Conceptuat approval only is granted for three ather out buildings showa on
the site plan as Building Na: 3, Building No. 4 and Building No. 5.
Plannina Commissioa review and Ciry Cowo,cil approval in the form of a
Plannad Unit Development amendm�nt s�all be abtained prior to the
issuance of building permiu for these buildings.
x�soLU�rlorr tvo. 99-3�
16. The costs for �affic signals at the SSth Avenue and 56th Avenue
intersecdons with Xerxes Avenue shall be the responsibiiity of ihe
apPlicant.
17. The plaas shall be modified to show:
a. A 3 ft. to 3'� ft. high decorative masonry wall in locations other
than along T. H. 100 wh�re greens�ips aze less than 15 ft.
b. The elimination of the access from t�e perimeter road ta the gazldng
tot east af Building No. 3.
c. The location of the Shingle Creek Regional Corridor Trail through
the Brookdale parldng lot.
d. TI1e removal of Building No. 1 which is not part of the conceptual
approval granted at this time.
18. Applicant shall enter into a development agreement, in a form approved by
the City Manager and the City Attorney, that assures that adequate
pravision will be made to accommadate public mass traasit circulating
through the pazking lot of the center and to allow for passengers to be
dropped off and picked up at ttie center. The applicant shall not be required
to -provide space ar accommadations for mass transit vehicles parking,
stacking� or laying over; for parking of privatcly own,ed vehicles of mass
transit pa�ons; or for the transfer of passengers between mass transit
vehicles.
March 8 Q99
Da May
ATTEST:
Ciry Clerk
The motion for the adoption of tha foregoing resolution was duly seconded by member
Ed Nelson and upon voce being taken thereon, the following vot�d
ia favor thereof: Myrna [{ragness Kay Iasman, Ed Nelson, and Robert Peppe;
and tlie following voced against the same: none,
whereupoa said resolution was declar�d duly passed and adopted.
y T a�.�E7J�iJ�a� ,g
BEGLARATIOI�I OF COYENA�VT3
o AND RESTRTCI'ION3
0':
GT
Gi
THIS DECLARAT�ON made this a day of I�� �Y T�
frookdal�'LLC.. a Delawara limita} liabs'�itY ��P�Y (�'refmrad to as t&e "Decleraat"�;
VVHEREAS, Doclara3at is the owaec of t�te resl grnperty da�cribed on Att�meut Ot�
(hc�inafter t3�c `�eclar�n#'s Ftope�Ey►'�; and
�!V�E�REAS, Aeciaiant's Praptrty ia adj�ce�nt to certain othcr propetties deeat'bed on
A�t Two (hecainaftec the propatiea described on Attarhmaents Oaa aud Two ara coUectively
c+eferred to as the "3iubject Propartie�`); and
1iV��REA5, the Sulsjcct Properdes sre sabj �t to ceKain zoiring aad land use restrictions
impos�d by #he city of Brooklyn Cer�r, �ota {"City") iu �o�ori w'sth the �g of thd
Suhjact Propatiea 6^om the zoaaing claaaification C-2 (Coiame�ca) no Pt3DIC 2 as psovided ia City
Raaulution No. 99-3? adc�tod on M�rch 8,1999; and
WI3EREAS, the City has appmved sach an �he baaie of the d�minatian of tbe
City Cotu�cii of the City �at such rezaning is scceptablc� anly t�y reason of tbe details af the
deveiopmeat pmposed and the unique la�t use charactetistics of tho proposed use of tha Sntij«x
Pmparties; and tEiat but for thc �tails of the dcvelo�nent proposad acxi tfie uniqua land use
c�arsci�acisdcs of such propoaad ts�e, tho ra�anittg would rwt have beaa appraved; a�d
Vf�EIERF.A�, as a conditioan ot' approval of the rezoning, the City' has requirod t8e axecution
aad Sliag of tliis Declaratioa af Cavenants, Cond'stions and Rc�trictians (h�aft� tbe
'Tkc�atioa"}; and
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DECLARATION OF COVENANTS
.ANI� RESTRICTIONS
TffiS DECLARATION made this �day of ���,arw ,1999, by Talis�nan
Braokdale, LLC, a Delaware iimited liabiiity comp�y (hereinaRer referred to as the "Declarant"),
WHEREAS, Declarant is the owner of the real property described on Attachmen# One
(hereinafter the "Declarant's Property'�; and
WHEREAS, Declarant's Property is adjacent to certain other propeities described on
Attachment Two (hereinafter the properties described on Attachments One and Two ar�e collectively
referred to as the "Subject Properties"); azid
WHEREAS, the Subject Properties are subject to certain zoning aad land use restrictions
unpo y the city of Brooklyn Center, Minnesota City m connechon vrnth the rezomng of the
Subject Properties from the zoning classification G2 (Commerce) to PUD/C-2 as provided in City
Resolution No. 99-37 adopted on March 8,1999; and
WHEREAS, the City has approved such rezoning on the basis of the determination of the
City Council of the Cifiy that such rewning is acceptable only by reason of the details of the
development proposed and the unique land usc characteristics of the proposed use of the Subject
Properties; and that but for the details of the development proposed and the tmique land use
characteristics of such proposed use, the rezoning would not have been approved; and
WHEREAS, as a condition of approval of the rezoning, the _City has required the execution
and filing of tlus Declaration of Covenants, Conditions and Restrictions (hereinafter the
"Declaration"); and
cc,t,-it�i6 1
BR291-186
WHFREAS, to secure the benefits and advantages of such rezoning, Declarants desire to
subject the Declarant's Property to the terms hereof.
NOW, T'HEREFORE, the Declaraats declare that the Declarant's Property are, and shall be,
held, transferred, sold, conveyed and occupie� subject to the covenants, conditions, and restrictions,
herei�after set forth.
1. The use and development of the Subject Properties shall conform to the following,
the lazge scale originals of which are on file with the Community Developrnent Department of the
City:
A. Site Survey attached as Attachment Three (Plan Sheet a0.1)
B. General Site Plan attached as Attachment Four (Plan Sheet a1.1)
C. Existing First Level Plan attached as Attachment Five (Plan Sheet a2.0e)
D. First Level Proposed Lea.ce Plan attached as Attachment Six (Plan Sheet a2.0)
E. Second Level Overall F1oor Plan attached as Attachment Seven (Plan Sheet a2.I)
F. Exterior Elevations attached as Attachment Eight (Plan Sheet-a3.1)
G. Exterior Images attached as Attachment Nine {Plan Sheet a3.2)
H. Grading and Drainage Plans attached as Attachment Ten (Plan Sheets C1.1 through
C 1.4)
I. Utility Plans attached as Attachment Eleven (Plan Sheets C1.5 ihrough C1.8)
J. Landscape Plan attached as Auachment Twelve (Plan Sheet L1.1)
K. Sit� Lighting Plan attached as Attachment Thirteen (Plan Sheet Lil.l
L. Applebee's Plan and Elevations attached as Attachment Fourteen (Plan Sheet A-l),
all of which Attachments are hereby made a part hereof. No buildings or swctures other than those
ct�.-i��s 2
BR291-188
shown on Attachments Three thrt�ugh Thirte,en may be erect�l or maintained on the Subjeet
Properties.
2. The appmval of the Planned Unit Development authorizes the followimg variations
from the requirements nf the City Code applicable to C-2 uses on the Subject Properties:
A. The setba�k from property lines to parldng lot pavement (greenstrip) is reduced from
15 feet to 5 feet in certain locations as shown on Attachment Five.
B. The setback from public right of way to buildings is reduced from 54 feet to 35 feet
in certain locations as shown on Attachment Five.
C. The parking space layout between rows of 90" parking spaces is reduced from 63 feet
to 60 feet.
D. The number of
parkmg spaces reqwred is based on gross leasable azea rather than
gross floor area.
E. Required parldng is re�uced £rom 5.5 spaces per 1400 square feet of gross floor ar�a.
to 4.5 spaces �er 1000 square feet of gross leasable area.
F. Two fi�eestanding signs of 320 square fe�t each are permitted along T.H. i00 rather
than one sign of 250 square feet,
G. The amount of gross leasable area which may be allowed without requiring a seating
count for parking space requirements is inareased from 15 percent to 20 percent.
3. Parking and�traf�c circulation plans on the Subject Prop�rties may not be altered
except as necessary to conform to the site plan (Attachment Four) or autlwrized by the Brooklyn
Center City Coun.cil by PUD amendment. The parking aad traffic circulation plan will not be
CI.L-169416 3
BR291-188
I
modified in any way which has the effect of depriving public mass traasit vehicles of reasonable and
convenient access through the parking lot at the center and to embazk and disembark passengers at
the center. The owners of the Subject Properties are not required to pmvide space or
accommodations for mass transit vehicle parldag, stacking or laying over, for parlang of privately
owned vehicles of m�ss transit patrons or for the transfer of passengers between mass transit
vehicles.
In the event it is determined in the future by the City Coun�cil of the City of Brooklyn
Center that the then existing pazking on the Subj ect Properties is not adequate, the owners of the
Subject Properties shall redesign and reconfigure parking areas and conshvct su�ch additional parking
facilities as are necessary to pmvide 5700 parlcing spaces on the Subject Properties�according to
lans which are sub'ect to Ci Council va1 as PUD amendments.
P l tY aPP�
AlI parking areas shaU be divided by concrcte pazking dividers approved by the
Brooklyn Center City Engineer.
4: Building pads.shown on the site p�an (AtGachment Four) and designated as Building
#2, Building #3, and Building #4 have been givea concepbual approval only for development of
rest�aurant or re�tail uses of 10,000 square feet,15,000 square feet and 25,000 square feet respectively.
These three sites may not be developed except as approved and provided through PUD aznendm�nts
aad approval by the City Council in which approval the City will be bound by the legal limitations
on the exercise of its police power, that such decisions not be arbitrary, capricious or unreasonable.
5. In the following areas where the setback from property lines to parking lots have been
redu� from 15 feet to 5 feet as described ia paragraph 2 hereof, the setback area shalt be improved
cr�.-is9ai6 4
BR291-188
with a three to three and one-half foot high keystone wall:
A. Adjacent to the parking lot in the vicinity of the Applebee's store which is identified
as Building 1 on Attachment Four; and
B. Along County Road 10 in the vicinity of the building site identified as Buitding #2
on Attachment Four.
6. The building pad shown on the site' plan (Attachment Four) and designated as
Building #4, lies withia the l OD year flood plain of the City and accordingly may not be filled or
developed without pmviding approved compensating floodwater storage.
7. The Subject Properti� may only be developed and used in accordance with
Paragraphs 1 thmugh 6 of these Declarations unless the owner first seeures approval by the City
Council of an amendment to the lanned unit develo ent lan or a rezo to a zanin
P Pm P B
classification wluch 'ts
such other develo ent and use.
Fernu Pm
8. Except as provided herein, use of the Subject Properties shall conform to the
regulations of the City of Brooklyn Center applicable to C-2 (Commerce) District and City Council
Resolution No. 99-37 adopted on March 8,1999.
9. Declarant is the owner in fee of the real property described in Attachment One.
Declarant is aot the owner of the parcels described on Attachment Two; however the Declarant
represents and warrants to the City that each of such parcels which it owns, and each of the parcels
of which it is not the owner, are subject to a re�iprocal easemmt agreement or a lease which in each
case restricts the building of any improvemeats on, or the making of any material changes, other than
those indicated on a site plan attached to the subject agreement or lease without the consent of
CLL-169416 5
BR291-188
Declar�� In all cases such attached site plan is entirely consistent with the restrictions contained
in the Site Plan attached to this I�claratian. Declarant covenants and agrees that it will not modify
any of such agreements, or pern3it their modification, in any way which would violate or be
inconsistent with �e restrictions and agiee�nents contained within this Declaration without the prior
written consent of the City and that Declarant will take such affirmative steps as aze needed to
enforce the tenns of such agreements to assure that the Declazant's Property is not used or developed
exeept in conformance with the requirements of this D�laration.
10. The obligations and restrictions of this Declaration run with the Iand of the
Declazant's Property and shall be enforceable against the Declazant, its successors and assigns, by
the City acting through its City Council. This Declazation may be amended from time to time by
a. written amendment executed b the Ci and the owner or owners of the lot or lots to be affected
Y tY
by said amendmen�
IN WITNESS WF�REOF, the undezsigned as duly authorized agents, officers or
representa.tives of Declarants have hereunto set their hands and seals as of the day and year first
above written.
I TALISMAN BROOKDALE, LLC
By:
SHARON 1» IpVUTSON
Nat�,r wreuc-�uw�so�r� g Its
lqrce..wo� 6� J�. st. 21o1i
s
STATE OF NIINNESOTA
ct�t,-i�ai6 6
BR291-168
33.
couxTY oF x�xrrEPnv
I The foregoing instcument was aclrnowledged before me this q�day of ,1999,
b Y the �n� aad
the for and on behalf of Talisrnau
Brookdale, LLC, a Delaware limited liability company.
Notary Public
Ci.L-169416v416
BR291-t88
CiJ.-1694F6 7
BR291-188
ATTACHII+�NT ONE
Tracts A, B, C, and D, Registered Land Survey No. 1469, Files of the Registrar of Titles, Hennepin
County, Minnesota.
And
Tracts A, B, and C, Registered Laad Survey No. i 614, Files of the Registraz of Titles, Hennepin
County, Minnesota.
c�.i.-i�ai6 g
sx�i•iss
ATTACHMENT TWO
Tracts C and D, Registered Land Survey No. 1469, Files of the Registraz of Tides, Hennepin
County, Minnesota.
And
Tract A, Registered Land Survey No. 936, Files of the Registraz of Titles, Hennepin County,
Minnesota»
And
Tract E, Registered Land Survey No. 1469, Files of the Registrar of.Titles, Hennepin Coimty,
Minnesota.
I
CLL-169416
BR291-188 9
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THE TRAFFtC STUOY COMPANY
Traffi
c Im act Stud
p Y
Brookdale Mall Expansion
Brooklyn Center, MN
t hereh� ce:�if} thai this re}�art wa. pr�pac�d by rne
or u�r m} JinYt suQerv'ision, aTni that ant a duly
Liceaszd Prnlesaic+nal Cogine�r undcr thr fa��s c�f
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TABLE OF CONTENTS
1. Introduction and Summary ........................................................1
2. Proposed Development 2
3. Analysis of Existing Conditions 6
4. Projected Traffic ...................................................�...................12
5. Traffic and improvement Analysis 22
6. Conclusions ..............................................................................25
7. Recommendations 25
8. Appendix 26
LIST OF FIGURES
Figure2.1 location Map ..................................................................................3
Figure 2.2 Site Plan ..........................................................................................4
Figure 2.3 Wal-Mart Supercenter Site Plan ....................................................5
Figure3.1 Existing Conditions .......................................................................8
Figure 3.2 Existing P.M. Peak Hour Trafflc ....................................................9
Figure 3.3 Existing P.M. Peak Hour Pedestrians .........................................10
Figure 3.4 Existing Daily Traffic ....................................................................11
Figure4.1 Trip Distribution ..................................................:........................15
Figure 4.2 P.M. Peak Hour Volumes Due to Development ..........................16
Figure 4.3 Daily Volumes Due to Development ...........................................17
Figure 4.4 2008 No-Build P.M. Peak Hour Volumes ....................................18
Figure 4.5 2005 No-Build Daily Yolumes ......................................................19
Figure 4.6 2009 Build P.M. Peak Hour Volumes ..........................................20
Figure 4.7 —.2009 Build Daity Volumes .....................:......................................21
LIST OF TABLES
Table 3.1 Existing Levei of Service (LOS) ......................................................7
Table4.t Trip Generation ..............................................................................14
Table 5.1 2009 No-Build Level of Service (LOS) ..........................................22
Tabie 5.2 2009 Build Level of Service (LOS) ................................................23
Table 5.3 Co Rd 10/Northway Dr Warrant Analyses ....................................24
Brookdale Mall Expansion i Brooklyn Center, MN
?}�af�c Impact Study .hely 2007
1. Introduction and Summary
a. Purpose of Report and Study Objectives
Brooks Mall Properties, LLC, is proposing construction of a
176,040 square feet Supercenter and 150,000 sguare feet of
CommerciallRetail space to be located within the existing
Brookdale Mall site. The purpose of this report is to dete�mine if
completion of these projects will significantly impact the adjacent
transportation system.
The study objectives are:
i. To determine how the intersections along the County Road
10 and Xerxes Avenue comdors operate today and how they
will operate with the addition of development traffic.
ii. To determine the traffi�+mpacts of closing the southem leg
of the County Road 10/Northway Drive intersection.
iii. To determine how the Mall's ring road will operate with the
proposed parking lot configuration.
iv. Recommend improvements if needed.
b. Executive Summary
Brooks Mall Properfies, LLC, is proposing retai! expansion within
the existing Brookdale Mall site including a 176,000 square feet
Supercenter and 150,000 square feet of Commercial/Retail space.
Proposed completion date of the expansion is 2008.
City staff has requested that a traffic study be completed to
determine the traffic impacts of the new construction on the
adjacent roadways. The intersections studied are:
Xerxes Ave N 8� 55�' Avenue North
Xerxes Ave N 8� 56�' Avenue North
Xerxes Ave N� County Road 10 (57�' Avenue North)
County Road 10 (57�' Avenue North) Northway Drive
County Road 10 (57�' Avenue North) Shingle Creek
Parkway
Brookdale Ring Road Brookdale Mall EntranGe
Brookdale Ring Road KohPs Entrance
The principal findings of this study are, if the expansion is
completed:
i. All of the study intersections wilf operate acceptably at l.evel
of Service D or better during the P.M. peak hour wi#h the
proposed expansion.
ii. The proposed site alterations wiiE not negatively impact the
three access points; the County Road 10IShi�gle Creek
Brookdale Mall Fxpa�sion 1 Brooklyn Center, MN
Tro,�c Impact Study July 1007
Parfcway, Xerxes Avenue/56�' Avenue, and Xerxes
Avenue/55�' Avenue intersections.
iii. The traffic signal at the County Road 10/Northway Drive
intersection should remain in operation after the south leg of
the intersection is closed as part of the expansion plan.
iv. When the south leg of the County Ro�d 10/Northway Drive
intersection is closed, the eastbound right turn lane,
southbound through lane, and westbound 1eft turn lane at the
intersection should be closed.
No mitigation measures are necessary to accommodate the traffic
changes that will occur with the Brookdale expansion. To provide
optimal traffic operations along the County Road 10 corridor, it is
recommended that the signa! timing at the intersections near
Brookdale be ad�usted to account for the change at the County
Road 10/Northway Drive intersection and the altered traffic
patterns. This should be done based on tratfic counts collected
after the Brookdale expansion is fully implemented.
2. Proposed Development
a. Site Location
The proposed expansion site is located within the existing
Brookda(e Mal! site, east of Xerxes Ave, �outh of County Road 10
and west of Shingle Creek Parkway, in Brooklyn Center, MN. See
Figure 2.1 for a(ocation map.
b. Land Use and lnlensity
The proposed mall expansion will add 150,000 square feet of
Commercial/Retail space configured in four separate buildings plus
a 176,000 square feet Supercenter.
c. Concept P/an
See Figure 2.2 for the proposed concept site plan. The expansion
plan is to build a Supercenter on the north side of the mall, in�ll the
southem side of the mall, and build on outlots on the east side of
the mall. The concept plan includes closing the southem leg of the
Gounty Road 10/Northway Drive, reconstructing the access south
of the County Road 10/Shingle Creek Parkway intersection and
breaking up the ring road. Phase of the project will consist of
building the Supercenter, as shown in Figure 2.3.
d. D�ve/opmenf Phasing and Timing
This study assumes full occupancy of all new facilities by the end of
2008.
Brookdale Mal! Expansion 2 Broo�Elyn Center, MN
?ra,�`'ic Impact Study July �007
TME itAFFIG STUDY COMIANY 2.1
7
Location Maps
Brookdale Expansion North
Brooklyn Center, MN No Sca1e
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THE TRAFfIC STUDY COMIANY
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Site Plan North
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Brookiyn Center, MN
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TME TRAfiIC STUOY COMIANY F�yU��i L��V
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WalMart Site Pian No�n
Brookdale Expansion No Scale
Brooklyn Center, MN
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3. Anat sis of Ex�stin Condit�ons
i
Y 9
I
a. Physica! Characteristics
Broakdale Mall currently has access via the following intersections:
Xerxes Ave N& 55�' Avenue North
Xerxes Ave N� 56'� Avenue North
Caunty Road 10 8� Northway Drive
County Road 10 Shingle Creek Parkway
57�' Avenue North is designated as Hennepin County State Aid
Highway 10 near Brookdale. County Road 10 is a four lane,
divided (concrete median� roadway with a 35 mph speed limit.
Tum lanes and traffic signals are provided at each intersection
alon the corridor near Brookdale. Xerxes Avenue is a local city
9
street with a 30 mph speed limit and is a four lane undivided
roadway near Brookdale.
Existing traffic control, speed limits, and travel lanes are shown on
Figure 3.1 for each study intersection. No roadway or traffic control
improvements are programmed near Brookdale.
Metro Transit serves the area with bus service via its transit hub on
've.
w Roa .10 and Northwa Dr�
the north estern quadrant of County d y
There are no transit stops within the Brookdale Mall site.
b. Traffic and Pedestrian Volumes
The P.M. peak hour turning movement counts were conducted in
2007 at the study intersections. Figure 3.2 shows the peak hour
vehicle turning movement volumes and Figure 3.3 shows the peak
hour pedestrian volumes at each of the study intersections. The
turning movement count and pedestrian data is contained in fifteen
minute intervals in the Appendix. The daily traffic volumes for the
area roadways are shown on Figure 3.4.
All of the study intersections are controlled with all-way stop signs
or traffic si nals with edestrian indications. The stud
9 P Y
intersections are well controlled to provide pedestrian safety.
c. Leve/ of Service
An intersection capacity analysis was conducted for the existing
intersect�ons per the Transportation Resear�h Board's Highway
Capaciiy Manual. In#ersections are assigned a°Level of Service"
letter grade for the peak hour of traffic based on the number of
lanes at the intersection, traffic volumes, and traffic control. Level
of Service A(LOS A) represents light traffic flow (free flow
Brookdale Mall Expansion 6 Brooklyn Center, MN
Tra,�'ic Impact Study July 2007
conditions) while Level of Service F(LOS F) represents heavy
traffic flow (over capacity conditions). LOS D is considered
acceptable in urban conditions.
The LOS results for the 2007 study hours are shown in Table 3.1.
These are based on the existing traffic control and lane
configurations as shown in Figure 3.1. The existing turning
movement volumes from Figure 3.2 were used in the LOS
calculations. The existing signal timing at the County Road 10
study intersections, as provided by Hennepin County staff, was
used in calculating the LOS for the intersection. The LOS
calculations were done using SYNCHRO software.
Table 3.1 Existing Level of Service (LOS)
Xences Ave N 8�.55 Ave N B
Xerxes Ave N 8� 56`" Ave N I B
Xerxes Ave N 8� CR 10 I C
CR 10 8 Northwav Dr A
CR 10 Shin�le Creek Parkwav C
Rin� Road Macy's Drivawav I A
Rin� Road Kohls' Drivewav I A
All of the study intersections operate acceptably at LOS C or better
during the normal weekday P.M. peak hour.
d. Data Sources
The sources for the data sited above are:
Tuming movement counts Traffic Data 1nc.
Roadway geometrics and traffic control Spack Consulting
Concept plans Architectural Alliance and HTPO
Daily traific volumes�— Mn/DOT traffic flow maps
Signal timing for study intersections Hennepin County
Bmokdale Mrrll Expansion 7 Brooklyn Center, MN
Tra,gic Impact Study �IY 1��
c� C
TNE TlAffIC STUDr COMMNY FI ure 3
Existing Lanes Traffic Control /r
Brookdale Expansion North
Brooklyn Center, MN No Scale
s
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Existing PM �Peak Hour Traffic Voluines
Brookdale Expansion North
Brooklyn Center� MN N
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Existing PM Peak Hour Pedestrian Volumes
B�ookdale Expanston No�th
Brooklyn Centsr, MN No Scaie
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�o y crosain� that I�� ot the
Mbrs�etia� durinQ the
poak hour
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ac
fME TRAffIC STUOY COM►ANY ure 3 r�
E 'xisting Dail� ffic Volumes
Brookdale Expansion North
Brookiyn Center, MN No Scaie
��S
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CR 10 37lh Ave N
00� 15��
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ai
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Trafflc Volumes nual Daily
aarca: MrwoT rrsfic F1ar t�a
4. Pro�ected Traffic
a. Site Tra�c Forecasting
A trip generation analysis was performed for the site based on the
methods and rates published in the ITE Trip Generation Manual, 7
Edition. The P.M. peak hour trip generation is for the "one hour of
adjacent street traffic," from 4-6 P.M. The resuitant trip generation
I is shown in Table 4.1. To be conservative, no trip reductions were
f rt
taken o ransit users.
Some of the customers who wiN visit Brookdafe are currently using
area roadways. Based on data contained in ITE's Trip Generation
Handbook, 2" Edition, 25% of the trips generated by each store
are assumed to be diverted from the current traffic volumes on
nearby roadways into the development. These are labeled pass-by
trips in Table 4.1.
I Some of the customers who will visit the expansion stores will visit
other businesses within the 8rookdale site. Based on data
contained in !TE's Tnp Generation Handbook, 2" Edition, 15% of
the trips generated by each store are assumed to visit more than
one store within the site. These are labeled intemal trips_ in Table
I 4.1.
The directional orientation of the generated tra�c is shown in
Figure 4.1. This orientation is based on a weighted distribution of
the traffic volumes currentiy using area roadways.
The daily and P.M. peak hour trips generated by the site wer.e
assigned to the area roadways per the trip distributions shown in
Figure 4.1. The traffic volumes added to the study roadways
through this process are shown in Figures 4.2 and 4.3.
b. Non-site Tra�c Forecasting
Traffic forecasts were developed for the year 2009 NaBuild
scenario. 8ased on historical growth rates on the area. roadways, a
2% annual growth rate was applied to the existing traffic volume
I data to develop the No-Build forecasts shown in Figures 4.4 and
4.5.
c. Tota/ Tra�c for 2009
Traffic forecasts were developed for the year 2009 Build scenario
by adding the traffic generated by the proposed projects, as shown
in Figures 4.2 and 4.3, to the NaBuild volumes shown in Figures
4.4 and 4.5. Additionally, the traffic volumes that would use the
Broo�rdale Ma11 Expansion 12 Brooklym C,enter, MN
Tra„�'ic Irripact Study July 1007
southern leg of the County Road 10/Northway Drive intersection
were re-routed to account for the proposed closure. The resultant
2009 Build traffic forecasts are shown in Figures 4.6 and 4.7.
i
Brookdale Mall Expansion 13 Brooklyn Center, MN
Trafftc Impact Study July 2007
ac
iNE TRAfi1G f1UDY COMfANY T��I�
Forecast Trip Generation
Brookdale Expansio�
Brooklyn Center, MN
Daily Volumes
RE DEVEI.OPYENT DALLY INTERNAL PASS-BY NEW DAILY
LAND USE CODE UNRS (�M RATE TRIPS PERCENT TRIPS PERCENT TRIPS EMTER EXR TRIPS
F�..ar.�a�c�cs�p...m.. a�a �.000c�n �»a.00 ��e.�� a.ss� �sx �,zee zsx 2.�sz 2.ssa z.sse s,�s�
snopp� c.m.. azo �.000 cF� tso.00 az.e� s.sa� �sx sss �x �.s�o ��.asz ��,s3z 9.ees
rorw �.000 cFw ��s.�os I I I s.ns 4.s» I 4.591 9.oe�
PM Peak Hour
oEV�oPr�r wr ewr wrEww. �Nreww. Pnss�Y rwrS ��x rwPB
uwu use coue s u►ars O1ANT1TM w►� v�eNr r�ec�r P�ec�+r rwPS ��aceNr ��R acR ��w�a aar
F... �ar� o�K �.ro.. e�3 �.aoo cFa tra.00 s.a� �+sax s�x �sx �oz �sx n 2» rta
sn�,auw c.� e�o �.000 cc�n �so.00 ��.�s �ex sz�c �sx e� ss�w eo so �»o ��ee
mTK �.000 c�� I I I I I 1 �n ��u ��u ��u
1. GFA Grass Floar Ana
2. JIN trip p�nraYon rabs brW an'fdp Gurraliw�•. ImtlOi� d Tran�part�Yon Enpkwrs. 7tl� Edition
9. AN M�Oortwl wwl pw-by tWS b�ted m'fdp Gwiwatlon Flr�ool�. ln�luta of TrarrparOMbn Enpirw[s. 2nd Editlm
ac
Figure 4.1
TNE iRAfiIC STUOY GOM►AN1f
Trip Distribution
Brookdafe Expansion
Brooklyn Center, MN North
No Scale
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TME TRAfflt S�UD1 COMIANY igure 4
PM Peak Hour Traffic Volume Due to Development
Brookdale Expansion North
Brooklyn Center, MN Nc Sca1e
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e e o �•20 0 �•m e.�
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Figure 4.3
TME iRAfFIC STUOY COM�ANY
Daiiy Traffic Volume Due to Development
Brookdale Expansion North
Brookiyn Center, MN No scale
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Figure 4.4
TNE i�AfFiC STUOY COMIANV
2009 PM Peak Hour No-Build Traffic Volumes
Brookdale Ex ansion North
P
Brooklyn Center, MN Nfl Sca�e
L 4o L,eo Q L so
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Figure 4.5
THE TRAFfIC STUOY COM�ANY
2009 Daily No-Build Traffic Valumes
Brookdale Expansion North
Brooklyn Cente�, MN No Scale
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13.800 CR 10 57�s Ave N
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Figure 4.6
THE TRAfFIC STUDI COM/ANY
2009 PM Peak Hour Buitd Traffic Voiume Forecast
Brookdale Expansion North
Brooklyn Center, MN No Scale
L,o o L soo o L so
g 4 soo �oo
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THE TRAfftt STUOY COM�
Fi�ure 4.7
2�09 Daily Build Traffic Volume Forecast
Brookdale Expansion North
Brookiyn Csnter, MN No Scate
z m
Z
M 75.6D0
CR 10 STth Avs N
�"�'�SS'T� ~T"�'�'�b"d'�
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Brookdale Center
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5. Traffic and Im rovement Anal sis
P Y
a. Site Access
Access to the site is shown on the concept plans in Figures 2.1 and
2.2. The ptan will close the southem leg of the County Road
10/Northway Dnve mtersection and reconfigure the park�ng !at o
n
the north side of the mall. The site will re#ain access via the County
Road 10/Shingle Creek Parkway, Xences Avenue/56�' Avenue, and
Xerxes Avenue/55"' Avenue intersections. The first access into the
Brookdale MaU parking lot south of the County Road 10/Shingie
Creek Parkway intersection will be closed and the access at the
current Kohls' Driveway will be improved.
The expansion plan effectively eliminates ttte existing ring road that
circles Brookdale. Eliminating the ring road will slow vehicles
speeds within the mall property, but will not negatively impact the
operations of the three public intersection access points to the mall.
b. Level of Service Analysis
The LOS results for the No-Build scenario study hours are shown in
Table 5.1. These are based on the existing traffic control and lane
configurations as shown in Figure 3.1. The #orecast tuming
movement volumes from Figure 4.4 were used in the LOS
calculations. The existing signal timing at the County Road 10
study intersections, as provided by Hennepin County staff, was
used in calculating the LOS for the intersection. The LOS
calculations were done using SYNCHRO software.
Table 5.1 2009 No-Build �evel of Servlce (LOS)
Xerxes Ave N� 55 Ave N
Xerxes Ave N 8� 56`" Ave N B
Xerxes Ave N 8� CR 10 1 C
CR 10 NuRhvva� Dr 8
CR 10 8� Shin�le Creek Parkwav I D
Rinq Road 8 Macv's Drivewav I A
Rin4 Road 8 Kohls' Drivewav I A
All of the study intersections will continue to operate acceptably at
�OS D or better in the 2009 P.M. peak hour in the No-Build
Scenario.
The LOS results for�the Build scenario study hours are shown in
Tab1e 5.2. These are based on the existing traffic control and lane
for the Rin
co�figurations as shown �n Figure 3.1, except g
RoadlKohls' Driveway and Ring Road/Macy's Driveway
Brookdole Mall Expansion 22 Brooklyn Center, MN
Tra,�c lmpact Study July 2007
intersections. The Ring Road/Macy's Driveway intersection will be
closed �as part of the project and the Ring Road/Kohls' Driveway
intersection will be improved to consist of:
Eastbound and Westbound stop sign control.
The eastbound approach wili have one exciusive left turn
lane and one shared through/right lane.
The northbound approach will have one shared
left/through/right lane.
The westbound approach will have one shared
!eft/through/right lane.
The southbound approach will have one exclusive left tum
lane, one through lane, and one exclusive right turn lane.
The forecast tuming movement volumes from Figure 4.6 were used
in the LOS calculations. The existing signal timing at the County
Road 10 study intersections, as provided by Hennepin County staff,
was used in calculating the LOS for the intersection. The LOS
calculations were done using SYNCHRO software.
Tab1e 5.2 2009 Build Level of Service (LOSj
Xerxes Ave N 8 55 Ave N C
Xerxes Ave N S 56`" Ave N C
Xerxes Ave N� CR 10 I B
CR 10 Northway Dr (as tee intersection) I A
CR 10 8► Shin�le Creek Parkway I D
Rin� Road 8 Kohls' Drivewav (exaanded) I A
All of the study intersections will continue to operate acceptably at
LOS D or better in the 2009 P.M. peak hour in the Build Scenario.
Figures 4.5 and 4.7 show the daily volumes anticipated on the
roadways around Brookdale. Based on caiculations from the
Transportation Research Board's Highway Capacify Manual, a four
lane divided roadway such as County Road 10 will operate at LOS
D if the road carries 25,000 to 35,000 vehicles per day. A four lane
undivided roadway such as Xerxes Avenue will operate at LOS D if
the road carries 15,000 to 20,000 vehicles per day. All of the
roadways operate at �OS D or better in all scenarios.
c. Traffic Control Needs
The proposed development plan includes closing the southem Isg
of the County Road 10/Northway Drive intersection. The
intersection is currently controlled with a traffic signal and operates
with low levels of delay. To determine if the traffic signa! should
stay or be removed as part of the proposed development, a warrant
Brook�le Mall Expansion 23 Brookl}m Center, MN
Tra,,�frc lmpact Study July 2007
analysis was conducted for the intersectio� per the Minnesafa
Manual on Uniform Traffic Contro/ Devices. The existi�g thirteen
hour turning movement counts, included in the Appendix, were
used in the analysis. The existing intersection lane configuration,
minus the movements associated with the southem leg, were also
used in the analysis. The results of the warrant analyses are
shown in Table 5.3.
Table 5.3 Co Rd 10/Northway Dr Warrant Analyses
�-!4" �r v�y R ,��,'G Y
j x SI tr�f'•�jA: �.r'. '•5�� M,TG u
.CT1 �`4'iHeY ��F��.'�
2Q07 Volumes
Movements associated Met Met Met
with southem leg
removed
2007 Volumes
Movements associated
with southem leg Not Met Not Met Not Met
removed southbound
�ht removed
2007 Volumes
Thresholds set at 60%,
Movements associated Met Met Met
with southem leg
removed southbound
ri,qht removed
If all of the southbound traffic volumes are used in the warrant
analysis, the intersection will meet the warrants for signal
installation after the southem leg is closed. If the right turns are
removed from the analysis because they have a dedicated free flow
lane, the intersection will not meet the warrants.for signal
installation after the southem leg is closed. Falling below 60°� of
the warrants was the historical criteria for removing a signal, but is
not recognized in the current Minnesota Manua/ on �Uniforrn Tra�c
Contro/ Devices. Nevertheless, the intersection volumes will not f�ll
below the 60% threshold.
Removing the signal would pose access problems for the buses a#
the transit station on the northwest corner of the intersection and
would create a less safe environment for pedestrians crossing
befinreen the mall and the transit station. Given the results af the
above warrant analyses, it is recommended the signal remain in
operation after the proposed expansion is built.
Brookdale Mall Ezpansion 24 BrooArlyn Center, MN
1'ra,�ic Impact Study JuJy 2007
6. Conclusions
The County Road 10 and Xerxes corridors and the study intersections
currentiy operate acceptably at or better than Level of Service D near
Brookdale. These corridors and the study intersections will continue to
operate acceptabiy at or better than Level of Service D with the planned
expansion. No mitigation measures are necessary to accommadate the
change in traffic.
The proposed expansion plan shows closing the southern leg of the County
Road 10/Northway Drive intersection. Reconstruction of the County Road
iO/Northway Drive intersection will be required to properly convert it to a tee
intersection. The southern leg will be closed, the tum lanes and through lane
to go southbound on Northway Drive wi{I need to be closed, and the traffic
signal will need to be modified.
7. Recommendations
No mitigation measures are necessary to accommodate the traffic changes
that will occur with the Brookdale expansion. To provide optimal traffic
operations along the County Road 10 corridor, it is recommended the signa!
tirning at the intersections near Brookdale be adjusted to account for the
change at the County Road 10/Northway Drive intersection and the altered
traffic patterns. This should be done based on traffic data collected after the
Brookdale expansion is fully operational.
Brookdale Mall Fxpansion 25 Brooklyn Center, MN
Tra,,�c Impact Study July 1007
8. Appe dix
a. Tra�c counts
b. Capacity ana/ysis backup
c. Traffic signa/ warra.nt ana/yses
Brookdale Mall Expansian 26 Brooklyn Center, MN
Tra,,�'ic �inpact Siudy July 1007
Member introduced the following resolution and moved its
adoption:
PL�ANNING COMMISSION RESOLUTION NO. 2007-03
RESOLUTION REGARDING RECOMIV�NDED DISPOSITION OF PLANNING
CONIlVIISSION APPLICATION NO. 2007-015 SUBMI'�ED BY BROOKDALE
CENTER.
��s,:
WHEREAS, Ci Council Resolution No. 99-37 March 8 1999, a roved
t3' p ��-:E�,. PP
a rezoni.ng from C-2 (Commerce) to PUD/C-2 of the Brookdat'; egio pping Center which is
bounded on the north by County Road 10, on the east and ea� by T. H:�:���and on th�e west and
southwest by Xerxes Averiue North; and ��r
�x
WHEREAS, that Planned Unit De� ment UD) proposa� �o included
development plan approval for the for the expansio� o��nt and rejtx�enation of the
Brookdale Shopping Center to include the following;
l. The reconfigurat�o��� �+est end of tli�'�1 ipcluding an 89,650 sq. ft.
second floor to inclu�a�� 4,252 eater;
�E M y
2. An a ate 13,200��, addrti north entrance to the mall for
tv�wrr+� t sites;
3. ��rox��te 13,000 sq f� adc�ition for general retail use and revised maU
en southe side of the com lex ad'acent to the then
i Y ?�Y P J
paytor�`��re,
�,�.�wf.
s.
4. ��40 sq `��i��tanding Applebee's restaurant building along Xerxes
Ave� North, ��itherly of the 56th Avenue entrance to the Brooktiale
I
Cente��a
��n
S' Conce�al approval, subject to further Planning Commission and City
,�oua�Tl review and approval, of four additional freestanding restaurant
'''�/or retail buildings to be located around the perimeter of the shopping
center; and
WHEREAS, most of the above mentioned improvements have been completed with
the exception of the above mentioned theater and conceptual approval of the additional buildings to
be located around the perimeter of the shopping center; and
WHEREAS, Planning Commission Application No. 2007-015 submitted by
Brookdale Center seeking a PUD amendment to allow construction of an appmximate 184,600 sq.
1
ft. Walmart Supercenter along the northerly side of the Brookdale Shopping Center following the
demolition of the existing vacant two story retail building that formerly housed Mervyn's
Department Store; and
WHEREAS, the Pla�ning Commission held a duly called public hearing on August
16, 2007 when a staff report and public testimony regarding the Planned Unit Development
Amendment were received; and
WHEREAS, the Planning Commission considered 'rv Planned Unit Development
�w
Amendment request in light of a11 testimony received, the for evaluating rezonings
contained in Section 35-208 of the City's Zoning Ordinance;:�?�ie pro k of the Planned Unit
Development ordinance contained in Section 35-355 of tl� ��y' �Zoning ce and the City's
Comprehensive Plan. N;
n ,X
NOW, THEREFORE, BE IT RESO�,�� by the ��tnnuig Adviso����ommission of
the City of Brooklyn Center to recommend to the Citij��u�l tT�t Applicat�oa No. 200'7-015
submitt�d by Brookdale Center be approved in light of the'�wing considerations:
the standards, Purpo
1. The Planned Umt �ent is compa ��t,h ses
and intent of the Pla�e�� evelopme� ction of the City's Zoning
Ordinance.
t
2. T'b,�- �_�Tnit Develo�ient Amen�nent will a11ow for the utilization of
land m on in a ma�er which is compatable with, complimentary to
a�pf comp�able intensity tQ►,�jacent land uses as well as those permitted
on i
�a4 ity^` "�T�� ���.�3�
uttli of the property as proposed under the Planned Unit
��pmeii�-.�e�dment is a reasonable use of the property and will
con�'a� wrth Ctt�Ordinance standards and factors contained in City Council
Resol��n No:}99-37.
The Pl�ned Unit Development Amendment is considered compatible with
:`�he �commendations of the City's Comprehensive Plan for this area of the
�y
5. Thc Planned Unit Development Amendment appears to be a good utilization
of the property under consideration and the redevelopment and rejuvenation
of BrookdaIe Mall aze an important long range use for the existing property
and aze considered to be an asset to the community.
6. In light of the above considerations, it is believed that the guidelines for
evaluating rezonings contained in Section 35-2Q8 of the City's Zoning
2
Ordinance are met and that the proposal is, therefore, in the best interest of
the community.
BE IT FURTHER RESOLVED by the Planning Advisory Commission of the City of
Brooklyn Center to recommend to the City Council that Application No. 2007-015 be approved
subject to the following conditions and considerations:
1. The building plans are subject to review �gap��val by the Building
Official with respect to applicable codes o the issuance of permits.
2. Grading, drainage and utility and erosia��ontror� s are subject to review
and approval by the City Engineex to-the iss ��f permits.
E
3. A site performance agreeme� and sug�orting fmancia� �r�tee in an
amount to be determined b�sec��� ost esl�ates shall be sub�itted prior to
the issuance of building permits� e campletion of all required site
improvements.
:x>:
4. B612 curb and gut1:���1 l� provided ar l,.parking and driving azeas.
a
5. Any outside trash disp�al f r a�op or on-ground mechanical
eqw�� shall be app ly from view.
6 �e buil y� to be equipp�d with an automatic fire extinguishing system to
'''rr� dards and sh�}J: connected to a central morutoring device
in ac� �:�if the City Ordinances.
r s �k..„��
.��Ev V,�:
fi
F.;� �nder�i�d ungation system shall be installed in all new landscaped
ar�� fi� faci��,, i� maintenance.
8. Plan oval i�s exclusive of all signery, which is subject to Chapter 34 of the
City ces.
.,z�
9. �.;<;�n as�Y�uilt survey of the property, improvements and utility service lines
���`s�fl be submitted to the City Engineer prior to release of the performance
guarantee.
10. The apglicant shall enter into a PUD agreement with the City of Brooklyn
Center to be reviewed and approved by the City Attorney�rior to the issuance
of permits. Said agreement shall acknowledge the Planned Unit
Development Amendment and shall be filed with the title to the properiy
prior to the issuance of building permits for ihis development. The
3
agreement shall fizrther assure complian+ce with the development plans
submitted with this application.
11. The plans sha11 be mudified prior to the issuance of building permits to
include:
a. A combination wrought iron and masonry �ier fence along the County
Road 10 green strip to direct pedest�ii'��c onto the site at
appropriate locations.
b. An appropriate erosion and sedug�nt c��ol plan to be approved by
the City Engineer.
c. A photometric plan sho rv-;�roposed li locations and foot
candles consistent with �don 35-?12 of the 'nances.
d. Modifications to th�. lan ta rovide a ro��°"``
eenin of
Y� P PP P��.,.,� ��c�' 8
loading facilities a�� ���ontain��nt azeas
e. Site plan modifications 'v�vit'I'�the Public V�'orks Director's
recommenda.tions in 3�is 8/1` ,�nemorandum.
12. All work performe� �#�gterials used����`� ;�n�h uction of utilities shall
conform to the City o��r� ��nter's wd specifications and de#ails.
F
13. The ���ant sha11 prov�e �ropna sion control during construction as
a�o'� the City E"�ineer and e��tain an NPDES construction site
;:�sion co permit from�e Minnesota Pollution Control Agency prior to
bmg t�site.
�Y
Y
„The ap� t s� �Proval af a Storm Water Management Plan and
ion G� 1 Plan from the Shingle Creek Watershed l�r[anagement on the
s�; The a� shall submit the application materials to the City
��r: Eng D`` ent to be forwarded to the Watersh� Commission.
The ov�rs of a11 parcels being subdivided under Planning Commission
Applic�ion No. 2007-014 shall enter into a standazd agre�ment for
�a�enance and inspection of private water main, sanitary sewer and storm
`�e systems locat�d with the plat boundaty.
16. There sha11 be no transient ovemight pazking andlor ovemight RV parking
anywhere on the Brookdale Mall site.
17. The preliminary plat comprehendeci under Planning Commission Application
No. 2007-014 shall be givcn final approval by the City Council and filed with
Hennepin County prior to the issuance of building pennits for this project.
4
Date Chair
::�R:�
ATTEST:
Secretary
The motion for the adoption of the foregoing reso �wras duly nded by member
and upon vote being taken thereon, the following vot�.�
��b
Y
in favor thereof Chair Pro Tem Comttiiss'ron F y r
and the following voted against the same:
whereupon said resolution was declared �assed az►d ado
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I
Member Ford introduced the following resolution and moved its adoption:
PLANNING COMNIISSION RESOLUTION NO. 2007-03
RESOLUTION REGARDING RECOMMENDED DISPOSTTION OF PL�ANNING
COMMISSION APPLICATION NO. 2007-015 SUBMITTED BY BROOKDALE
CENTER.
WHEREAS, City Council Resolution No. 99-37 adopted on March 8,1999, approved
a rezoning from G2 (Commerce) to PUD/C-2 of the Brookdale Regional Shopping Center which is
bounded on the north by County Road 10, on the east and southeast by T. H.100 and on the west and
southwest by Xerxes Avenue North; and
WHEREAS, that Planned Unit Development (PUD) proposal also included
development plan approval for the for the expansion, redevelopment and rejuvenation of the
Brookdale Shopping Center to include the following;
1. The reconfiguration of the west end of the mall including an 89,650 sq.
second floor to include a 20 screen, 4,252 seat theater;
2. An approximate 13,200 sq. ft. addition to the north entrance to the mall for
two restaurant sites;
3. An approximate 13,Op0 sq. ft. addition for general retail use and revised mall
entry way along the southerly side of the comptex adjacent to the then
Dayton's store;
4. A 4,650 sq. ft. freestanding Applebee's restaurant building along Xerxes
Avenue North, northerly of the 56th Avenue entrance to the Brookdale
Center;
5. Conceptual approval, subject to further Planning Commission and City
Council review and approval, of four additional &eestanding restaurant
and/or retail buildings to be located around the perimeter of the shopping
center; and
WHEREAS, most of the above mentioned improvements have been completed with
the exception of the above mentioned theater and conceptual approval of the additional buildings to
be located around the perimeter of the shopping center, and
WHEREAS, PlaYUUng Commission Application No. 2007-015 submitted by
Brookdale Center seeking a PUD amendment to allow construction of an approximaCe 184,600 sq.
ft. Walmart Supercenter along the northerly side of the Brookdale Shopping Center following the
1
demolition of the existing vacant two story retail building that formerly housed Mervyn's
Department Store; and
WHEREAS, the Planning Commission held a duly called public hearing on August
16, 200'7 when a staff report and public testimony regarding the Planned Unit Develapment
Amendment were received; and
WHEREAS, the Planning Commission considered the Planned Unit Development
Amendment request in light of all testimony received, the guidelines for evaluating rezonings
contained in Section 35-208 of the City's Zoning Ordinance, the provisions of the Planned Unit
Development ordinance contained in Section 35-355 of the City's Zoning Ordinance and the City's
Comprehensive Plan.
NOW, THEREFOItE, BE IT RESOLVED by the Planning Advisory Commission of
the City of Brooklyn Center to recommend to the City Council that Application No. 2007-015
submitted by Brookdale Center be approved in light of the following consi�erations:
1. The Planned Unit Development is compatible with the standards, purposes
and intent of the Planned Unit Developmcnt section of the City's Zoning
Ordinance.
2. The Planned Unit Development Amendment will allow for the utilization of
the land in question in a manner which is compadble with, complimentary to
and af comparable intensity to adjacent land uses as well as those permitted
on surrounding land.
3. The utilization of the property as proposed under the Plazined Unit
Development Amendment is a reasonable use of the property and will
conform with City Urdinance standards and factors contained in City Councii
Resolution No. 99-37.
4. The Planned Unit Development Amendment is considered compatible with
the recommendations of the City's Comprehensive Plan for this uea of the
city.
5. The Planned Unit Development Amendment appears to be a good utilization
of the property under consideration and the redevelopment and rejuvenation
of Brookdale Mall are an important long range use for the existing property
and aze considered to be an asset to the community.
6. In light of the above considerations, it is believed that the guidelines for
evaluating re2onings contained in Section 35-208 of the City's Zoning
2
Ordinance aze met and that the proposal is, therefore, in the best interest of
the community.
BE IT FURTHER RESOLVED by the Planning Advisory Commission of the City of
Brooklyn Center to recommend to the City Council that Application No. 2007-015 be approved
subject to the following conditions and considerations:
1. The building plans aze subject to review and approval by the Building
Official with respect to applicable codes prior to the issuance of permits.
2. Grading, drainage and utility and erosion control plans aze subject to review
and approval by the City Engineer prior to the issuance of permits.
3. A site performance agreement and supporting financiat guarantee in an
amount to be determined based on cost estimates sha11 be submitted prior to
the issuance of building permits to assure completion of all required site
improvements.
4. B618 curl� and gutter shall be provided around all parking and driving areas.
5. Any outside trash disposal facilities and raoftop or on-ground mechanical
equipment shall be appropriateiy screened from view.
6. The building is to be equipped with an automatic fire extinguishing system to
meet NFPA standards and shall be connected to a cenbral monitoring device
in accordance with Chapter S of the City Ordinances.
7. An underground irrigation system shall be installed in a11 new tandscaped
areas to facilifate site maintenance.
8. Plan approvai is exclusive of all signery, which is subject to Chapter 34 of the
City Ordinances.
9. An as built survey of the property, improvements and utiliry service lines
shall be submitted to the City Engineer prior to release of the perfomiance
guarantee.
10. The applicant shall enter inta a PUD agreement with the City of Brooklyn
Center to be reviewed and approved by the City Attomey prior to the issuance
of permits. Said agreement shall acknowledge the Planned Unit
Development Amendment a�d shall be filed with the title to the property
prior to the issuance of building permits for this development. The
3
agreement shall further assure compliauce v�rith the development plans
submitted with tlus application.
i 1. The plans shall be modified prior to the issuance of building permits to
include:
a. A combination wrought iron and masonry pi�r fence along the County
Road 10 green strip to direct pedestrian traffic onto the site at
appropriate locadons.
b. An appropriate erosion and sediment control plan to be approyed by
the City Engineer.
c. A photometric plan showing proposed lighting locations and foot
candles consistent with Section 35-712 of the City Ordinances.
d. Modifications tv the site plan to provide appropriate screening of
loading facilities and trash containment areas.
e. Site plan modifications consistent with the Public Works D'uector's
reconunendations in his 8/13/07 memorandum.
12. All work performed and materials used for construction of utilities shall
conform to the City of Brooklyn Center's standard specifications and details.
13. The applicant shall provide appmpriate erosion control during cnnstruction as
approved by the City Engineer and obtain an NPDES construction site
erosion control pennit from the Minnesota Potiution C�ntrol Agency prior to
disturbing the site.
14. The applicant shall obtain approval of a Storm Water Management Plan and
Erosion Control Plan from the Shingle Creek Watershed Management on the
site. The applicant shall submit ihe application materials to the City
Engineering Department to be forwazded to the Watershed Commission.
15. The owners of all parcels being subdivided under Planning Commission
Application No. 2007-014 shall enter into a standard ag�eement for
maintenance and inspection of private water main, sanitary sewer and storm
drainage systems located with ttie plat boundary.
16. There shall be no transient ovemight parking and/or overnight RV pazking
anywhere on the Bmokdale Mall site.
17. The preliminary plat comprehended under Plannuig Commission Application
No. 200'7-014 shall be given final approval by the City Council and filed with
Hennepin County prior to the issuance of building permits for this proj ect.
4
1
�-l6-0�
Date
ATTE n
Secretary
The motion for the adoption of the foregoing resolution was duly seconded by member Young
and upon vote being taken thereon, the following voted
in favor thereof: Chair Pro Tem Roche, Commissioners Ford and Young.
and the following voted against the same: Coaunissioner Parks
whereupon said resolution was declared duly passed and adopted.
5
Member introduced the following resolution and moved
its adoption:
RESOLUTION NO.
RESOLUTION REGARDING THE DISPOSITION OF PLANNING
COMMISSION APPLICATION NO. 2007-015 SUBMITTED BY BROOKDALE
CENTER.
WHEREAS, City Council Resolution No. 99-37 adopted on Mazch 8,1999, approved
a rezoning from C-2 (Commerce) to PUD/C-2 of the Brookdale Regional Shopping Center which is
bounded on the north by County Road 10, on the east and southeast by T. H.100 and on the west and
souttiwest by Xe�es Avenue North; and
WHEREAS, that Planned Unit Development (PUD) proposal also included
development plan approval for the, expansion, redevelopmenf and rejuvenation of the Braokdale
Shopping Center to include the following;
1. The reconfiguration of the west end of the mall including an 89,650 sq. ft.
second floor to include a 20 screen, 4,252 seat theater;
2. An approximate 13,200 sq. ft. addition to the north entrance to the ma11 for
two restaurant sites;
3. An approximate 13,000 sq. ft. addition for general retail use and revised mall
entry way along the southerly side of the complex adjacent to the then
Dayton's store;
4. A 4,650 sq. ft. freestanding Applebee's restaurant building along Xerxes
Avenue North, northerly of the 56th Avenue entrance to the Brookdale
Center•
5. Conceptual approval, subject to further Planning Comrnission and City
Council review and approval, of four additional freestanding restaurant
and/or retail buildings to be located around the perimeter of the shopping
center; and
WHEREAS, most of the above mentioned improvements have been completed with
the exception of the above mentioned theateY and conceptual approval of the additional buildings to
be located around the perimeter of the shopping center; and
WHEREAS, Planning Cominission Application No. 2047-015 submitted by
Brnokdale Center seeking a Planned Unit Development Amendment to allow construction of an
approximate 184,600 sq. ft. Wa1-Mart Supercenter along the northerly side of the Brookdale
Shopping Center following the demolition of the existing vacant two story retail building that
formerly housed Mervyn's Deparirnent Store. has been submitted; and
WHEREAS, the Planning Commission held a duly called public hearing on August
16, 2007 vvhen a staff report and public testimony regarding the Planned Unit Development
Amendment were received; and
'L
RESOLUTION NO.
WHEREAS, the Planning Commission recommended approval of Application No.
2007-015 by adopting Planning Commission Resolution No. 2007-03 on August 16, 2007; and
WHEREAS, the City Council considered Application No. 2007-015 at its August 27,
2007 meeting; and
WHEREAS, the City Council considered this Planned Unit Development Amendment
request in light of all testimony received, the Guidelines for Evaluating Rezonings contained in
Section 35-208 of the City's Zoning Ordinance, the provisions of the Planned Unit Development
ordinance contained in Section 35-355 of the City's Zoning Ordinance, the City's Comprehensive
Plan, City Council Resolution No. 99-37 and the Planning Commission's recommendations.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Brooklyn Center that Application No. 2007-015 submitted by Brookdale Center be approved in light
of the following considerations:
1. The Planned Unit Development is compatible with the standards, purposes
and intent of the Planned Unit Development section of the City's Zoning
Ordinance.
2. The Planned Unit Development Amendment will allow for the utiliza.tion of
the land in question in a manner which is compatible with, complimentary to
and of comparable intensity to adjacent land uses as well as those permitted
on surrounding land.
3. The utilization of the property as proposed under the Planned Urut
Development Amendment is a reasonable use of the properry and will
conform with City Ordinance standards and factors contained in City Council
Resolution No. 99-37.
4. The Planned Unit Development Amendment is considered compatible with
the recommendations of the City's Comprehensive Plan for this area of the
city.
5. The Planned Unit Development Amendment appears to be a good utilization
of the property under consideration and the redevelopment and rejuvenation
of Brookdale Mall are an important long range use for the existing property
and are considered to be an asset to the community.
6. In light of the above considerations, it is believed that the guidelines for
evaluating rezonings contained in Section 35-208 of the City's Zoning
RESOLUTION NO.
Ordinance are met and that the proposal is, therefore, in the best interest of
the community.
BE IT FURTHER RESOLVED by the City Council of the City of Brooklyn Center to
recommend that Application No. 2007-015 be approved subject to the following-conditions and
considerations:
1. The building plans are subject to review and approval by the Building
Official with respect to applicable codes prior to the issuance of permits.
2. Grading, drainage and utility and erosion control plans are subject to review
and approval by the City Engineer prior to the issuance of permits. All
conditions listed in the Public Works Director's memo of August 13, 2007
shall be complied with.
3. A site performance agreement and supporting financial guarantee in an
amount to be determined based on cost estimates shall be submitted prior to
the issuance of building permits to assnre completion of all required site
improvements.
4. B618 curb and gutter shall be provided around all parking and driving areas.
5. Any outside trash disposal facilities and rooftop or on-ground mechanical
equipment shall be appropriately screened from view.
6. The building is to be equipped with an automatic fire e�inguishing system to
meet NFPA standards and sha11 be connected to a central monitoring device
in accordance with Chapter 5 of the City Ordinances.
7. An underground irrigation system shall be installed in all new landscaped
areas to facilitate site maintenance.
8. Plan approval is exclusive of all signery, which is subject to Chapter 34 of the
City Ordinances.
9. An as built survey of the property, improvements and utility service lines
sha11 be submitted to the City Engineer prior to release of the performance
guarantee.
10. The applicant shall enter into a PUD agreement with the City of Brooklyn
Center to be reviewed and approved by the City Attorney prior to the issuance
RESOLUTION NO.
of permits. Said agreement sha11 acknowledge the Planned Unit
Development Amendment and sha11 be filed with the title to the property
prior to the issuance of building permits for this development. The
agreement shall further assure compliance with the development plans
submitted with this application.
11. The plans shall be modified prior ta the issuance of building permits to
include:
a. A combination wrought iron and masanry pier fence along �lie County
Road 10 green strip to tiirect pedestrian traffic anto the site at
appropriate locations.
b. An appropriate erosion and sediment control plan to be approved by
the City Engineer.
c. A photometric plan showing proposed lighting locations and foot
candles consistent with Section 35-712 of the City Ordinances.
d. Modifications to the site plan to provide appropriate screening of
loading facilities and trash containment areas.
e. Site plan modifications consistent with the Public Works Director's
recommendations in his 8/13/07 memorandum.
12. All work performed and materials used for construction of utilities shall
conform to the City of Brooklyn Center's standard specifications and details.
13 The applicant shall provide appropriate erosion control during construction as
appraved by the City Engineer and obtain an NPDES construction site
erosion control pernut from the Minnesota. Pollution Control Agency prior to
disturbing the site.
14. The applicant sha11 obtain approval of a Storm Water Management Plan and
Erosion Control Plan from the Shingie Creek Watershed Management on the
site. The applicant sha11 submit the application materials to the City
Engineering Department to be forwarded to the Watershed Commission.
15. The owners of a11 parcels being subdivided under Planning Commission
Application No. 2007-014 shall enter into a standard agreement for
maintenance and inspection of private water main, sanitary sewer and storm
drainage systems located with the plat boundaty.
16. There sha11 be no transient overnight parking and/or overnight RV parking
anywhere on the Brookdale Mall site.
I RESOLUTION NO.
17. The preliminary plat comprehended under Planning Commission Application
No. 2007-014 shall be given finaZ approval by the City Council and filed with
Hennepin County prior to the issuance of building permits for this project.
August 27. 2007
Date Mayor
ATTEST:
City Clerk
The motion for the adoption of the foregoing resolution was duly seconded by member
and upon vote being taken thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
I
����r J�. ����r .��r�
COUNCIL ITEM MEMORANDUM
TO: Curt Boganey, City Manager
FROM: Sharon Knutson, City Clerk
DATE: August 23, 2007
SUBJECT: Resolution Authorizing Approval of the Issuance of a Premises Pernut for
Brooklyn Pazk Babe Ruth League, Inc. to Conduct Lawful Gambling at
Boulevard's Baz Grill, 2545 County Road 10, Brooklyn Center
Recommendation:
I recommend that the City Council review and consider adoption of a Resolution Authorizing
Approval of the Issuance of a Premises Permit for Brooklyn Park Babe Ruth League, Inc. to
Conduct Lawful Gambling at Boulevard's Baz Grill, 2545 County Road 10, Brooklyn Center.
Background:
Brooklyn Pazk Babe Ruth League, Inc. has submitted a Minnesota Lawful Gambling Premises
Permit Application to conduct lawful gambling at Boulevard's Bar Grill, 2545 County Road
10 in Brooklyn Center. A background investigation has been conducted by the Brooklyn Center
Police Department, and a memorandum from Det. Corinne Becker is attached, which indicates
the investigation did not reveal any concerns in reference to lawful gambling at the
establishment.
Although their name is legally listed as Brooklyn Park Babe Ruth League Inc., it is worth noting
that the organization has operated as "Brooklyn Area Babe Ruth" for the last many years. They
are included on the city's website and promote their programs in the City Watch newsletter.
Brooklyn Area Babe Ruth schedules both pracdces and games at the Northport Park, Grandview
Park (Cohen), West Palmer and Evergreen Pazk baseball fields. Many of the group's players,
parents, and board members reside in Brooklyn Center
As a tangible example of their involvement in the Community, Brooklyn Area Babe Ruth has
invested over $10,000 in the community over the past five years. Park improvements made as a
result of their donations include dugouts, field imgation and an e,quipment storage box at
Northport Pazk, new dugouts and equipment storage at Evergreen Pazk, and equipment storage
boxes at Grandview and West Palmer Parks. Most recently, the 2007 Summer Youth Sports
Program participants received team t-shirts thanks to their generous donation.
Additional information regarding the Brooklyn Area Babe Ruth Program can be found on their
website at: httn://eteamz.active.com/babr/index.cfin
Memorandum to Curt Boganey
Page 2
August 23, 2007
Minn. Stat. S 349313 Subd. 2. Local approvaL Before issuing or renewing a premises permit
or bingo hall license, the boazd must notify the city council of the statutory or home rule city in
which the organization's premises or the bingo hall is located or, if the premises or hatl is located
outside a city, the county board of the county and the town board of the town where the premises
or ha11 is located. The boazd may require organizations or bingo halls to notify the appropriate
local government at the tnne of application. This required notification is sufficient to constitute
the notice required by this subdivision. The boazd may not issue or renew a premises permit or
bingo hall license unless the organization submits a resolution from the city council or county
board approving the premises permit or bingo hall license. The resolution must have been
I adopted within 90 days of the daie of application for the new or renewed permit or license.
Budget Issues:
There are no budget issues to consider.
I
Member introduced the following
resolution and moved its adoption:
RESOLiTTION NO.
RESOLUTION AUTHORIZING APPROVAL OF 'THE ISSU.ANCE OF A
PREMISES PERMIT FOR BROOKLYN PARK BABE RUTH LEAGUE, INC. TO
CONDUCT LAWFUL GAMBLING AT BOULEVARD'S BAR GRILL, 2545
COUNTY ROAD 10, BROOKLYN CENTER, MINNESOTA
WHEREAS, Broolclyn Pazk Babe Ruth League, Inc. has submitted a Minnesota
Lawful Gambling Premises Permit Application to conduct lawful gambling at Baulevard's Bar
I Grill, 2545 County Road 10, Brooklyn Center, Minnesota; and
WHEREAS, the Minnesota Gambling Control Boazd requires a municipality to
submit a resolution authorizing approval of the issuance of any lawful gambling premises permit
within its borders; and
WHEREAS, Brooklyn Pazk Babe Ruth League, Inc. has subxnitted all appropriate and
necessary documentation for the premises pernut and a background investigation has been conducted
by the Brooklyn Center Police Department regarding a11 named gambling managers and nothing was
found in that investigation that would preclude the issuance of a Minnesota Lawful Gambling
License; and
WHEREAS, Brooklyn Park Babe Ruth League, Inc. agrees to provide to the City of
Brooklyn Center each month copies of the monthly reports they submit to the Minnesota. Gambling
Control Boazd.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Brooklyn Center, that the issuance of a premises permit to Brooklyn Pazk Babe Ruth League, Inc. to
conduct lawful gambting at Boulevazd's Bar Grill, 2545 County Road 10, Brooklyn Center,
Minnesota, is hereby approved.
Austust 27, 200'7
Date Mayor
ATTEST:
City Clerk
The motion for the adoption of the foregoing resolution was duiy seconded by member
and upon vote being taken thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
I
u1 Gamblin Annual Fee $150 s�o Page 1 of 2
Minnesota Lawf 9 �pR gpq{tp USE ONLY
LG214 Premises Permit Application
�,����t�r� 1r�a��r�.
organizationname °a,rt'lai /�uT,+� 4�qrr��, �icensenumber ?3
Ctiiefexea�tive�I'ic�(CEO)�� ye Ll�•✓D�t�.�0�1'1 Day6mephone 7�0 3 Sro ga 3S/(
��b�� F�t��e��i�fa�i�ti�
Name of establishment where gambling. will be conduded �8�� �Q�/��`�' ��R
Street address where premises is located �-��it���U �0�� �d
(DO not use a P.O. box number or mailing address) ��d�,�� ���tJT�°/Z
City Township County Zip code
BR�a��YN C�UVT�/i. �P.vtit'Ai�rl ,.����D
Does your organization own the building where the gambling will be conduded?
yes �No If no, attach LG215. Lease for Lawtul Gambting Activity
���I�-,��c��� ��f���iar� (n�u��,���+��ot�
f���
Bank name Bank accourrt number
/�S'.I'a �/%�-Tt� �c/��
Bank street add s C�Y �r /'f�[
State2ip code
�/f /C.� /�wG.� 6 /�Nw .y il
"���vr�/ and ��r�a��� C�f��i�±er�����.5���
(�r ��fing e�t�Prn�Mt an� r��si�ds �I�t� tcF�ti� sit��, �r�r�k b��kaned;in �Jlinne�ota)
Address (Do not use a P.O. box numbe� City State2ip code
y�
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S��'t�� Q�+���� ���cl�r��i1g �tr�g+Er�
Enter-rJa�. and bB9ian�n9lending hQUrs.Qf.bingo oa;asions.(indicate A.M. or P.M.). An oocasion may not exce� 8 hours.
RPeinnine/Endina HourB Q�y �inninc�/�nd�pg Hours
d'dlG�i�� ,�0_J� to
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6/07
LG214 Premis�s Permit Application Page 2 of 2
nard �;vacy
The informatbn requested on th� fortn (and any attachmerds) When the Board issues your premaes pertnit, all I�ertnit intormation
wib be wed by Ure Oambliny Control Board (Board) to prcvided will become publ�c. If the Board does not issue you a
delermine your qualiflcatior�s to be imolved in Isnnful garnbling P� Per^'�� all the intortnetion provided remai� p�ivate, with
adiviGes in Mimesota, and to assist th� Board in conduain9 a the exaePtan of your name and address that wili remain public.
badcground inveatlgation of you. You have the rigM to refuse
to suPPh' infortnation requested: however, if you refuse io Private data about you are avatlable to: Boarti finembers; Board
suppiy this iniortnation, the Board may not be able to staff whose wodc requires access to the i�formation; Minnesota's
determine your qualifications and, as a consequenae. maY Oepartrnent of Public Safety; AttomeY General; Commissioner�s of
refuse to issue you a premises permit. Ifyou suPPh the Adminis�abon, F'�nanoe. ar►d Revenue; Leg�slativeAud'Ror, nationai
iMorrnation requestad, the Board will be able to proaess your and in�emational gambling regulatory agenaes; arryane pursuar�tto
cou�t order, other individuals and agenaes that are speaficallY
authodzed by sNate or federal law to have acoess to the
Your name and addresswiN be public information when iMormation; individuals and agencie,s forwhich Naw or legal order
�eived by the Board. All other infamation you provide wdl author¢es a new use or sharing of information afbe� this notice
be prNate data unbl ths BoaM issues Your Pre►►rses Pe�t• wa$ 9Nen; and anyone with your consent.
1�►+����rv�ted�fi��� �n�M �a#�
1. I hereby c�nsent that local law enforcement officers, the Board or its agents, and the commissioners of revenue o�
public safety and their agents may enter the pr�m�ses to inspect it and enforce the law.
2. The BoaM and its agents, and the commissioners of revenue and public safety and their agents are authorized to
insped the bank records of the gambling aocount whenever necessary to fulfill requirements of current gambling
ru�es and law.
3. i have read this application and all information subrri�tted to the Board is tnie, accurate, and comptete.
4. All tequirsd information has been fuity disclosed.
5. 1 am the chief executive officer ot the organization:
6. I assume fuil responsibility for the fair aod lawtul operation of ali activities to be conducted.
7. 1 wiil famifiarize myself with the laws of Minnesota goveming lawful gambling and rules of the Boarcl and agree, �f
li�nsed, to abide by those laws and rules, induding amendments to them.
g, Any changea in application infomiation will be submitted to the Board no later than 10 days aiter the change has
taken effed.
9, 1 understand that failure to provide required i�forma6on or p�oviding false or misleading infarmation may result in
the d' I or re f Uie li nse. n
0�/�/�/
Date
Sigr�'fure of Chief I tive Officer (designee may not sig�)
���'..__�,,✓��s'7��Per�.
Prin! name
�r,p�►�eslt[�i���1l�iiqUi�+d�tffi��4f19n�s i Monthly Regulatory F e es rmit for this s e
If you receive a prem' pe it
1. LC214 Premises Pemntt Appiication 5 there is a monthly regulatory fee of 0.19�0 (.001}
2. If the premises is leased, attach a copy of your lease. of gross receipts from lawful gam�uig
Use LG215 Lease for Lawful Gambling Activity. conduded at the site. The fee is reported on the
3. Aftach a resolutlon from the local unit of govemment that G� ��I Gambling Morrthty Summary and Tax.
shows approval of your appliqtion: Return and paid with the monthly tax report•
if the premises is within a city, attach city approval, or
if the premises is within a township, attach county
aPProvaL
4. $150 annual premises permit fee, for each permk. Qu�Uons?
Malce chedc payable to "State of Minnesota" Call the Licensing Section of the Gambling
Contro! Board at 651-639�000.
Mail to: This form will be made available in altemative
Gambling Control Board ��at (i.e. large print, Braille) upon request.
1711 West County Road B, Suite 300 South
Roseville, MN 55113
Mlnnesota Lawful Gambling 610�
LG215 Lease for Lawful Gamblin� Actnrifiy 1°f 2
e�r�e
L�se for new application. Submit with new premises pertnR appiication.
_2. Renewsd lease. Submil with premises pem�itt renewai.
_3. Nsw owner. ElfectNe date 1 Submit new w amended base vrithin 10 days after new lessor aasumes ownership.
_4. Amended lease
Check ths chanpe(s) in tl+a baae: _Rent _Premises nams _Booth/bar Ac�ivity changa _Othsr
Date that changes vinU be eifedive
Both parties must �iilisai a�d date all changes.
Submk changes at least 10 daws before the efFective date of the cha�ge.
Organ¢aCan naune Lioense number Daytime Phone
�.9 oot�'�v�v f�,2�',��t1f /�vTJr// ,�rQ4u� 03,'-7� 7c�3- f�q3-:�-ob�'
N�ne of I�ased premiaes Street address Cdy State Zip DaYti�'�e
��v.�l �c.f �e:// a�rs�r c�ryRJ �e �.�irl. P?R- "'r' ,.,�J�y3 0 ��3 J��6
Name of legal owner of premises Business/street address Cily Q�y,�(j State Zip Da�A�r�ePho�e
��I �A+lL /�D.ol4°2T%CPt`Lt .J/f.»� A�-Aa�s1� ��'+.l�''P /l�if ��1� 7G S6�-� �J :I'
Name of fessor (�f same as legal Businesstsheet address Cdy Sfate Zip Dayllme phone
owner. write in "SAME")
�':c�+� dvAU�rPr,;r s'.�� 9�tX_ cr�. /J'1�I v s'i/3c, �-�'c�- r-�rJ"
�hi����1f��,��xni� I�s�oruJut�
�ull-tabs _Puil-tabs with disper�sing devioe _TiPboards Y J'addlewhee� _Paddlewheel wttfi table 6ingu bingo
�"�pl�D�►�I� ��i�E���{±�!�#��M� t�'o �ea�. reqpair+�;fKU ra��
Boot11 operatlon saks of gamblin9 ��P�'�� bY Bar ope�ation sales of gamding equipment within a leased
(or vdu�eer) af a baensed argardzation witl�in a separatie er�sure premises by an employee of tl�e le5sor from a wmmon area wt�e
that is �stlnct fran ar�s wl�ere fiood and beverages are sold. faod and beverages are also sdd.
1 T
1 T :��rY
llY
�f�if���@�t��'��?' 1�lS::
L-�
If you answered yeS bo the quesaon above, rent timits are If you ansvvered i10 to the question above, rent Gmits are
based the fdlowing combinatiions of operdtion: based on the foilov�nn9 oombinations op�tion:
o B� operation
8o�h opaatlon and pull-tab dispensing device Sar operation with puli-tab �isper�si�g devioe
Booth operation arxl bar oP�ti� Pull-t� dispensin9 devioe only
Booth operabon, bar operation, and pull-tab di�ensing devioe
The maxirnum rent ailowed may n� exceed $1,750 in total The ma�omum rent allowed may riot exceed $2,500 in tntal
per month fw �I organizations at this premises. per moMh for all orgaru'zations at this p�r►ises.
�LElEOMEOPrLON: DOM�LE7EONEOPIION:
Op61on A: O ta 1096 of the gross praHtS per moMh. Option A: 0 to 20% of the gross profits per month.
Percentage to be paid °Yo Pd'centage to be paid
Option B: When gr� protits are $4.000 or less perq� ,��on 6: When gross profits are $1,000 or less per month, $0
;400 per month may be paid. Amount bo be paid ��vO bo #200 per rr�nth may be paid. Amount to be paid;
Optlon C: �0 to S� P� ma�th on tl�e first �l,000 of gross Opdon C: ;0 to $200 per month on the firsC $1.000 of gr�
proflt Amotmt to be paid Profits. AmouM to be paid
Plus; 0°6 to 1096 af the gross protits may be paid per month on Plus. 096 to 20% of the grou profits may be paid per month on
9� Profits over $4,000. Peroentage to be paid 96 9� P�''�flts over;i Percenfage to be paid 96
��;��iR�.F '5, .�7RRR� �L7��af� �l�5
i�
Optbn D: 0 bo 109� af the gro� profits per month from all lawful pp� F: No rent may be paid for binge
ga�r�blingactivitlesh�d during bingooccasions, exducS'ng b�dngo. conducted in a bar.
Percentage to be pafd
Option E: A rate based on a aost pe[ square foot, not to e�cceed
110°r6 of a canparable aost per squ�e foot for leased space, as ��1lI/ �111�Q ��t�f
approved by the dredor of ti�e Gamt�ing Control Board. No rent may 6e For any new bingn actMty not previous{y
paid for bar bingo. Rate bo be P� S P�' sQuare foot. induded in a Premises PemNtAppiication.
TFie lessor must attafi docurr�entatlon, Verifi� by the organizaUon, to
confirm the comparabie rate and ail applicable oosCs to be pafd by the attach a separate sheet of paper listing die
organization to tfie lessa�. days ar� hours that bingo will be conduded.
6JD7
LG215 Lease for Lawful Gambling Activity P� z� 2
��T� Other Prohibitions
The term tMs lease agreemerit wili be oor�axrent wilh the The lessor will rrot rrnpose reshid� on the organization with r�pect
precriise.s Per►nit is�ied W tfie G�nblin9 Conbnl Board (Boar+d). bo Prov(ders (cdstn'bu6ors) of 9amblin9-�elabed equipment and servioes
or in the t�se of net profits for lawful purposes•
Manayement of Gatnbling Prohibibnd 7� �r, any person r�idin9 in tl�e same ha�sehold as the lessa;
The owr� of the prern�set or tl�e lessor w�l not meoage the ��5 tmrr�e�ate }�ni1y, and ar►y agents or empioyees ot the
of gambli�9 at the premises. le�or wNf rwt requ�e the orgarrzadon bo perform any action that
Partidpatlon as Players Prohibibed v�rould vialate statute or rule. The lessor must not moddy or tennhate
The le�or, tf�e le�s immediate famity, ar�d arry agents or 1� in whole or in part �e to the lessor's violatian of this
provision. If tl�ere a dispute as to whet�er a vioiation oacurred, the
9��9 employees of tlie less� wiq not partidp� as players lease w0! rerr�n in effec3 Pendi�9 a final determinatian by the
in tl�e wnd��ct of lawfid 9amb6n9 on the prernises. Compl'�anoe Review Group (CRG� of tl�e Gambling Contr�ol Board. Tt�
tessor agrees m arbitration when a vtdation af this pravision is
Illegal Gambtiny alleged. The arbitrabor shall be the CRG.
The lessor is aware of the P�b� i0egal gambling
In Mmnesota Stah�es 609.75, and the penalties for iqegal Aooe� bo permi�tbed premises
gamWing viotadons in N6nnesota Rules 7865.0220. Subpart 3. and its agenis, the mmmissione�s of revenue and pubiic
In additlon, the Boazd may autl�orize tl�e organization to s��Y and the� agenCs, a�d law enforcement p�nr►el have acoess to
withhold r+ent for a period d� to 90 days if tl�e Board P�� p�ises at any reasonable tirr� during the business hours
de�mines tt� illegal gambling oanxred on the premtscs of the fessa: The organaatlai has aoce� M the permitted prert►ises
that U�e lesso� or its e�IWees PartidP� �t 1he illegal ��9 any time reasonable and when necessary far the ao�►duct of
gambling a� knew of tl�e gambfm9 arxl did not take PrornPt lawful gambiing on tl�e premises.
achon tp stop the gambling. C,ontinued tenan�y of tlie Lesscr recoMs
organizadon is authorized without PaMient of rent d�xin9 the The lessor must maintain a neca'd of all ►i'aneY neoeived frvm tt�e
time Period debennined bY the Board for valatlons of tlrs ar�d make the reoor�d avaitable to the Board and its agents,
provision, as autliorized by Minnesota SCdtuCes 349.18, and the comrr�ssloners of r�ue and public safety and their agents
Subdiv�ion i(a). �p� �nd. The recbrd mu� be maintained for 3-1/2 yea�s.
To the best of tl�e lessa's krwwledge, d�e lessor aflirms that
any and all c,�nes or devtces locabed on the P�� a� R�ent all-indusive
bein9 used. and are not capable of being used, in a manner p paid as rent by the organizaaon to tl1e lessor are all-Indu�iv�.
that violates the P�� �ir�st Gleg� 9a�f�n9 in No ott� se�vices or �cpenses Provided or wMracted by the lessor maY
Mtrmesota Statubes 609.75. be paid by the organizatlon, Induding but not IimiGed bo trash removal,
Notwitlutanding Mirx�esota Rtdes 7865.0220, Subpart 3, en janiborial a�d deaning services, sraw remaval, lawn sen+ices, e{ec�rioh►,
organizatlon rtxst oontinue maldng �ent pa�ts under heat, s��Y. �MY monitaing, storage, other utiGtles a servioes,
the terms of this lea9e, if the organlzatlon or its �entS are and in the case of bar op�'atior�s, cash shortage.5•
found to be solelY r�or�We for anl' 9a��+�9,
oonducted at this site, that is proh�ited by Mirv�ta Rules 11r►Y othe�' e�endtures made by an organizatJon tf�at is related to a
7861.0260, Subpart 1, kem H or I�nnesota Stah�bes 609J5, ��d. R�t payme�ts �O
tmle� the organization's zigeMs re�onslble fa the �egal
ga�ribling acdvlty �e also ager� or err�ploye�s of the lessor.
The le�or must not modtfY or bemunabe the lease fn whde or m(ease
in part beCause tlie organization reporte�i, b� a sbbe or local If the lea5e is amer�led with no dwn9e in ownership, ti�e or9anization
taw �t aatlwrilY orthe Board, the aondt�of Nlegat will9ubmit the amended lease to the 8oard at least 10 da sr�Yefore fhe
9�f�'�9 �Y at tlYs sfte in whid� the orgai�atlon dId not �e date of the change. If a change in ownership ac�s, the
partiaPa�• or9a�� wiil subrrrit an arr►ended I�se tio the Board witliin 10 days
afterthe new lesso� has asswned ownd'shiP•
Aeknowledgment of Lease Terms I aitkm that this lease is the total and ony agreement between the Iessor and the
organizabon, end that aY obigatiau and agreements aro contained k► or attad�ed to tfiis �ase �d are .sLbfett to t�ie ap�roval ot
fhe dh�ocGor af the Gs�nbllny Co�1 Bosrd
other terrr� ��7/� �•tzT ,�+►OT /�E� �'J/2 4' T
��l o��:�� �.��.�r d�
�z
�F..,/.�i� iivA-T� i� G4 �✓�fyr.' O,K fsa��,/,� �D,Q �✓�v� �TO AN�y �J�'C �9-j %�y1J
qf Date S' naWre of orga n oifidal_ pessee) Date 1
we
C r r d�'/� d�
Print name and tide of lessor �Prlf�t name and of lessee
�i i�f/��I GU, Gt/�! u 1��,es �J� �i.✓„�s
Lessee's business addresp
��E�'��� .r_
Que�ionsT Contad tlse Lioen�ng Section. Gambling Control Board, at 651-639-4000. This publicabion wdl be made available in
altemative fom�at (i.e. large P►{rrt, &aille) upon request The i�tion r�e�estied an thls fam witl beoon�e pubtic infortnatian when
r¢oeived by the Board, and used to debertNne your compllanoe wlth Minnesota siatutes and rules govemirg lawful gambling activi
�i �F .rT.9T�e o,� LeeA�L ��t 6�iN'� f�.t .6� ��ti
.c9L�B/ZG ���7�
7�3r ���3
M i n n esota
Gambl�ng Controi
Boa rd
has issued
Gamblin Mana er l.icense
9 9
G-03273-002
Ba be Ruth l.eag u e
to
Edward W�Il�am Bock
Effective Date: May 1 2007
7
Ex iration Date. Dec 31 200
p
.,,,r• iq�""
Licensing Supervisor
Issued by:
Dave J Undstrom Minnesota Gambling Control Board
Babe Ruth League Suite 300 South
Box 43064 1711 W. County Road B
Brooklyn Park, MN 55443 Roseville, MN 55113
,wfn{�'
Minnesota
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e :r �,x
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°�t� Board
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M y� I .�`�i'�°ra��"'L;S� 1
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4 .S A �r
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s¢� has �ssued
I�wfu1 Gamblin I.icense
9
03273�
to
Babe Ruth l.ea ue
9
Effective Date: Jan 1 2006
Expiration Date: Dec 31 �007
p
Licexsi�tg Sup�rvisor
Isst�ed by:
Dave 7 lin�om Minnesda Gambltng Cartrol Board
Babe Ruth League Suibe 300 South
B�c 43064 1721 W. COunty Ft�d B
Brooldyn Park, MN 55443 RoseviNe, MN 55113
Yahoo! Mail csemarketing@yahoo.com Yage 1 of'l
Yahoo! My Yahoo! t�'i Tutorials Make Y! vour home �aqg Welcome, csemarkef9na �jg.n Out HgjR
Seat"Ch
���L
Dt� ��u �u� fir�
��a j� Addresses Calendar Notepad Mail For Mobile Maii UQgrades Options
,.�u.������ �°po.sce s,!��` �f�� ��k, ����'f������'.
$150,000 loan Pre�so4� I�S I�ck to Messaq�s
for #45o a mo
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inbox (2)
From: Rcrcmk7�aol.com �View Contact Details Add Mobile Alert
Draft......_ W
Date: Thu, 26 Jul 2007 20:06 50 EdT
Blllk (3) [Empty] Subject: Brooklyn Area Babe Rutl� Board of Di�ectors
....v
TI'aSh [Empty] To: csemarketing�yahoo.com
timlynnolson�comcast.net, d�inny�Pclink.com,
CC: phillipelarkins�compst.net, alajim�msn,com, rtpoizinSCcomcast.net,
Search Shortcuts g��7�aol.wm, s�ki{born@corr�ast.net
My Photos
My Attachments The following iists the board of Directors of the Brooklyn Area Babe Ruth
r League, 2007.
See your credit PfeSldellt Ron astendaf .....T63-424-2024
score free .Brooklyn Park, Mn
Free People Executive Vice Presdent..........:.Tim Olsan............612-247-G323
Search
Broo Center, Mn
WY!�
Free People
searcn Vice President Administration...Dave Lindstrom....763-560-60d1
Find Any GE-0
Email Address Brookl�m Park. Mn
Vice President Operations........Phill Larkins...:.....763-496-1894
Braokl�/n Park,_Mn
Secretary ...........................:......Jim Ross.............763-566-9026
Broolda►n Park, Mn
Treasurer ...................................Ron Polzin...........763-208-8213
_Brooklxn Park. Mn.
Player Agent .............................Bob Batta............763-443-9186
Brooklyn Cente�, Mn
Director Senior Baseball...........Steve lGlbom.......763-566-8966
B�4 a0 �.fR/�
http://us.f330.mail.yahoo.com/ym/ShowLetter?MsgId=7114 1862578_19772_1511_1335... 7/27/2007
i
G� Y
BRUOKLYN CENTER
.o
POLICE DEPARTMENT
MEM4RANDUM
TO: Scott Nadeau, Lieutenant
FROM: Corinne Becker, Detective
DATE: 8/13/2007
SUBJECT: Gambling License Background Check for Brooklyn Area Babe Ruth League
at Boulevard's Bar Grill
On 8/6/2007, I was assigned a gambling license check for the Brooklyn Park/Area Babe Ruth
e holds a valid State of Minnesota amblin license under number
League. I found that the Leagu g S
03273 which is valid unti112/31/2007. The State recognizes Edward William Bock (dob
04/04/1944) as the registered Gambling Manager under license number G-03273-002. I was able to
confirm that Brooklyn Area Babe Ruth is a recognized league of the National Babe Ruth League.
nt r Cit Clerk Sharon Knutsan was a State
from Cit of Brookl Ce e
th check re uest
Attached to e y yn Y
q
of Minnesota Gambling Control Board Premises Permit Applicahon completed by David James
Lindstrom (dob 0&/19/1945), a Lease for Gambling Activity form completed by Richard Alden
Waulters (dob 08/15/1943), a.nd an email listing the 2007 Board of Directars for the Bmoklyn Area
Babe Ruth league
I completed a check for the ten (10) persons associated with the license including:
Steven John Kilborn 10/11l1950
Robert Franklyn Batta 10/22/1960
Ronald Gordon Polzin 09/OS/1962
James Walter Ross 06/10/1964
Phillip Ernest Larkins 08/03/1952
Timothy Paul Olson 12/08/1958
Ronald Theodore Ostendorf OS/30/1945
Richard Alden Waulters 08/15/1943
David James Lindstrom 08/19/1945
Edward William Bock 04/04/1944
Histo an
For each person, I checked for a valid Mmnesota Drrver s License, a cr�minal ry, y
outstanding Warrants and AutoTrack Credit Check.
All checks are attached with the following to summarize my findings.
All persons possess a valid Minnesota Driver's License.
Mr Kilborn received one misdemeanor traf�ic offense conviction in 1994.
Mr Batta received one misdemeanor traffic offense conviction in 1994.
Mr Polzin received one petty misdemeanor traffic offense conviction in 2003.
Mr Waulters received one misdemeanor and one petty misdemeanor traffic offense
conviction in 1991. He received one misdemeanor traffic offense conviction in 1994.
Mr Bock received one petty misdemeanor traffic offense conviction in 2003.
Criminal History Check
Mr Waulters has a criminal history citing his 1994 traffic offense.
All persons were clear of Warrants as of 8/14/2007.
AutoTrack Credit Check
Mr Kilborn was the subject of a small claims judgment in 1995 and again in 1998.
Mr Polzin was the subject of a State Tax Lien in•2001, a small claims judgment in 1997, and
a filed Civil Judgment in 2007. The 1997 and 2001 liens were satisfied. The 2007
claim appears to be outstanding.
Nothing found in my investigation leads me t'o conclude that a gambling permit for the Brooklyn
Park/Area Babe Ruth League should not be issued.
s
E.
,J��. s
�...y
n
r
COUNCIL ITEM MEMORANDUM
TO: Curt Boganey, City Manager
FROM: Todd Blomstrom, Director of Public Works
DATE: August 23, 2007
SUBJECT: An Ordinance Vacating Certain Drainage and Utility Easements within the
plat of BROOKLYN FARM, Hennepin County, Minnesota
Recommendation:
Public Works staff recommends that the Brooklyn Center City Council proceed with a
first ordinance reading and establishment of a date far a se�ond reading and public
hearing to consider an ordinance vacating certain easements withiri the plat of
BROOKLYN FARM. A second ordinance reading and public hearing is requested for
September 24, 2007.
Background:
The City Council previously approved the final plat for $RO�KLYN FARM 2�
ADDTTION as part of the process to facilite construction of the Embassy Suites Hotel
project adjacent to the Earle Brown Heritage Center. As a general housekeeping item, the
proposed orriinance would �acate the underlying dra.inage and utility easements that exist
within the lot that would be conveyed for the hotel. The new plat of BROOKLYN FARM
2� ADDTTION will rede�cate a11 of the areas currently covered with existing easements.
As indicated above, a second ordinance reading and public hearing is recommended to be
conducted on September 24, 2007.
Budget Issues:
The City Economic Development Authority (applicant) is required to pay a cash fee in
the amount of $125 as part of the application process to vacate the easements.
Brooklyn Farm Yacation Ordinance
CiryofBrooklyn Center
CITY OF BROOKLYN CENTER
Notice is hereby given that a public hearing will be held on the 24th day of September, 2007, at
7 p.m. or as soon thereafter as the matter may be heard at the City Ha11, 6301 Shingle Creek
Pazkway, to consider an ordinance vacating easements within a portion of the plat for
BROOKLYN FARM.
Auxiliary aids for persons with d.isabilities are available upon request at least 96 hours in advance.
Please contact the City Clerk at 763-569-3300 to make arrangements.
ORDINANCE NO.
AN ORDINANCE VACATING CERTAIN DRAINAGE AND UTIIJITY
EASEMENTS WITHIN THE PLAT OF BROOKLYN FARM, HENNEPIN
COUNTY MINNESOTA
TI� CITY COUNCIL OF TI� CITY OF BROOKLYN CENTER DOES ORDAIl�1 .AS
FOLLOWS:
Section 1. Utility Easements and Urility Drainage Easements within Lot 1,
Block 1 of the plat BROOKLYN FARM, Hennepin County, Minnesota that were
dedicated with the recording of said plat and designated on said plat are hereby vacated.
Section 2. This ordinance sha11 be effective after adoption and thirty days
following its legal publication and after the recording of the plat of BROOKLYN FARM
2 ADDPTION with Hennepin County, Minnesota.
Section 3. Notwithstanding the description provided above, it is the express intent
of the City not to vacate any of the following street, utility, or drainage utilit�
easements: easements dedicated with the recording of BROOKLYN FARM 2
ADDTTION approved by City Council Resolution 2007-100; easements dedicated within
Lot 2, Block 1, BROOKLYN FARM, Hennepin County, Minnesota; and any easements
recorded as separate documents &om the plat BROOKLYN FARM, Hennepin County,
Minnesota
Adopted this da.y of 2007.
Mayor
ATTEST:
City Clerk
Date of Publication
Effective Date
(Strikeouts indicate matter to be deleted, underline indicates new matter.)
r
Note: Only Lot 1 is beir�� replatted with
BROOKLYN FARM 2" Addition I
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COUNCIL ITEM MEMORANDUM
TO: Curt Boganey, City Manager
FROM: Todd Blomstrom, Director of Public Works
DATE: August 21, 2007
SUBJECT: Resolution Accepting Quotation and Awarding a Contract, Kylawn Park Building
Demolition, Improvement Project No. 2007-17
Recommendation:
Public Works staffrecommends that the Brooklyn Center City Council accept the lowest quotation
and award a contract to Wickenhauser Excavating, Inc. for demolition of the existing Kylawn Park
Building.
Backgronnd:
City Council Resolution 2007-101 directed staff to proceed with the preparation of final plans for
replacement of the Kylawn Park Building. The project azchitect is preparing the final plans for City
Council review and consideration on September 10, 2007. Resolution 2007-101 also directed staffto
proceed with asbestos abatement and solicit quotations for demolition of the existing park building.
Asbestos abatement work has been completed for the building.
Building demolition quotations were solicited from three reputable contractors. The City received
quotations from two of the three contractors. The tabulation of prices is provided below.
Bidder Bid Amount
Wickenhauser Excavating, Inc. $2,858.00
Cazl Bolander Sons, Co. $4,996.00
Kevitt Excavating No Bid
Budget Issues:
The preliminary total project cost estirnate provided to the City Council on July 23` included the
estimated cost of $5,500 for building demolition. The lowest bid from Wickenhauser Excavating is
significantly below the preliminary estimate. The cost for building dernolition would be funded by
the Capital Improvements Fund (40100).
Kylawn Building Demolition Resolution
Member introduced the following resolution and moved its
adoption:
RESOLUTION NO.
RESOLUTION ACCEPTING QUOTATION AND AWARDING A CONTR.ACT,
KYLAWN PARK BUILDING DEMOLITION, IMPROVEMENT PROJECT NO. 2007-
17
WHEREAS, staff solicited quotations from three qualified building demolition contractors
and the following two quota.tions were received and opened on August 10, 2007 for the demolition
portion of Improvement Project No. 2007-17.
Bidder Bid Amount
1aVickenhauser Excavating, Inc. $2,858.00
�arl Bolander Sons, Co. $4,996.00
WHEREAS, it appears that Wickenhauser Excavating, Inc. is the lowest responsible
bidder for the demolition portion of Improvement Project No. 2007-17.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn
Center, Minnesota, that the City Manager is hereby authorized to enter into a contract with
Wickenhauser Excavating, Inc. in the name of the City of Brooklyn Center for the demolition
portion of Improvement Project No. 2007-17, Kylawn Park Improvements according to the plans
and specifications approved and on file in the office of the City Engineer.
AuQUSt 27, 2007
Date Mayor
ATTEST:
City Clerk
The motion for the adoption of the foregoing resolution was duly seconded by member
and upon vote being taken thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
•
City ......... Agenda Item No . 11 d.
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COUNCIL ITEM MEMORANDUM
TO: Curt Boganey, City Manager
FROM: Todd Blomstrom, Director of Public Works
DATE: August 23, 20U7
SUBJECT: Resolution Accepting Work Performed and Authorizing Final Payment,
Improvement Project No. 2007-14, Contract, 2007-D, 2007 Street Seal
Coating
Recommendation:
Public Works staff recommends that the Brooklyn Center City Council consider acceptance
of work performed and authorization of final payment for 2007 seal coating activities.
Background:
On March 12, 200? the City Council awarded Improvement Project No. 2007-14, Street Seal
Coating activities for 2007 to Allied Blacktop Company of Maple Grave, Minnesota. This
work was performed as part of a joint powers agreement for street maintenance activities
with the cities of Coon Rapids, Andover, Fridley, Ham Lake and Columbia Heights. The
intent of the joint powers agreement is to provide an opportunity to obtain lower unit bid
prices by combining annual maintenance work for several communities into one project bid
in order to promote a more competitive bidding environment.
Improvement Project No. 2007-14 included the placement of chip seal surface treatment to
City streets and parking lots at locations indicated on the attached maps. Allied Blacktop
Company has satisfactorily completed all work under the contract. Allied is requesting final
payment for the project. City forces are in the process of completing paint markings for the
parkirig lots.
Budget Issues:
2007 seal coating activities. are funded within the 2007 operating budget for the Public Works
Street Maintenance Division, the Municipal State Aid Fund, and the General Government
Buildings fund. The attached resolution provides a recommended distribution of costs to the
various funds. The total cost for 2007 seal coating activities is $111,020.68, slightly less
than the original bid amount.
2007 Seal Coat Improvements
City of Brooklyn Center
Member introduced the following resolution and moved its
adoption:
RESOLUTION NO.
RESOLUTION ACCEPTING WORK PERFORMED AND AUTHORIZING FINAL
PAYMENT, IMPROVEMENT PROJECT NO. 2007-14, CONTRACT 2007-D, 200?
STREET SEAL COATING
WHEREAS, the City of Brooklyn Center entered into a joint powers agreement with
the City of Coon Rapids to provide street seal coat maintenance work; and
WHEREAS, the 2007 Street Seal Coating work was awarded to Allied Blacktop
Company of Maple Grove, Minnesota pursuant to said joint powers agreement; and
WHEREAS, Allied Blacktop Company has completed the specified street
maintenance work for Improvement Proj ect No. 2007-14, Contract 2007-D, 2007 Street Seal
Coating.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Brooklyn Center, Minnesota, that:
1. Final payment shall be made for Improvement Project No. 2007-14, taking the
contractor's receipt in full. The total amount to be paid to Allied Blacktop
Company for Improvement Project 2007-14 shall be $111,020.68.
2. Project costs and revenues are hereby amended as follows:
COSTS As A�proved As Final
Contract $111,821.72 $111,020.68
REVENUES
43220-6404 56,722.50 55,921.46
40200-6404 35,899.22 35,899.22
41940.6520 19,200.00 19,200.00
Aueust 27, 2007
Date Mayor
ATTEST:
City Clerk
The motion for the adoption of the foregoing resolution was duly seconded by member
and upon vote being taken thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
ALLIED BLACKTOP CO. 1NVOICE
BITUMINOUS CONTRACTOHS
i0503 89TH AVEhII�IE NOHTti NO 1115 8
MAPLE GHOVE, MIPINESUTA 55389
(763) —425-0575 PAGE 1
g J 070'7.
I CITY OF BROOKLYN CENTER O CITY OF BROOKLYN CENTER
L 6301 SHINGLE CREEK PARKWAY B
L BROOKLYN CENTER MN 55430
N
T
O
08/10/07 I1158 BRO001 NET 30
�r�`�.
UNI.T EXTE����r
QUANTIT� D E S C R I P T I O N P�2ICE F"R���
:;k���
111110.68 2007 STREET SEAL COAT PROGRAM 1.0000 111,1�9��$
1) FA-2 TRAP: 1,200 TON
42.60 51,120.00
2) CRS 2: 17 0 9 2 GAL 1. 8 8
$32, 132. 96
CRS-2P: 10,701 GAL 2.22
$23,?56.22
3 COVERING MARKINC3S
S CHOOL CROS S ING 3 E�, !a�
250.00 $750.00
CROSSWALK PANEL 3' X 6': 7
EA 90.00 $720,�0
4" LINE—SOLID: 1,249 LF
1.00 $1,249.00
4'� LINE—SKIP: 60� LF 1.10
$660.00 4
LC10SE ROCK SIGNS 17 EA
42.50 $722.50
GROSS RETAINAGE TAX �1ET AMOUNT
i i R_�� �d �0 7, ri__ca..
e-"-• Y.
����Ou+•�v8 �If�0.2.0•�i8
HEbRUEH r Ofi�a2�5
Seal Coating 2007
C�y ofBrooldyn Ceni�r
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Seal Coa ing 200?
City of Brooklyr► Center
Public Works Garage
Parking Lot
6844 Shingle Creek Pkwy
C e 4
E83t FIr@ $�IOn
East Parking Lot
6500 Dupont Ave N
West �ire S"tation
Parking Lot
6250 Brooklyn Blvd
City Hall and Community Center
Parking Lots
6301 Shingle Creek Pkwy
••�m CRS-2P
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COUNCIL ITEM MEMORANDUM
TO: Curt Boganey, City Manager
FROM: Todd Blomstrom, Director of Public Works �T'�
DA.TE: August 21, 2007
SUBJECT: Resolution Declaring a Public Nuisance and Ordering the Removal of Diseased
Trees
Recommendation:
Public Works staff recornmends that the Brooklyn Center City Council declare a public nuisance and
order the removal of diseased trees as listed on the resolution document.
Backgronnd:
The attached resolution represents the of�icial Council action required to expedite removal of the
diseased elm trees most recently marked by the city tree inspector, in accordance with approved
procedures. The City of Brooklyn Center has historically maintained a policy of removing diseased
trees promptly (in three weeks or less) and enforcement of proper disposal in order to keep this
disease fram escalating in our community.
Budget Issues:
The City's share of the cost of removal for diseased trees within the public right-of way and City
property is included in the 2007 Budget under the Public Works Forestry operating budget. The cost
of removal for diseased trees located on private property is the responsibility of the respective
property owner.
Disease Tree Removal Resolution
Member introduced the following resolution and moved
its adoption:
RESOLUTION NO.
RESOLUTION DECLARING A PUBLIC NUISANCE AND ORDERING THE
REMOVAL OF DISEASED TREES
W�REAS, a Notice to Abate Nuisance and Diseased Tree Removal Agreement has been
issued to the owners of certain properties in the Ciry of Brooklyn Center giving the owners twenty
(20) days to rernove diseased trees on the owners' property; and
WHEREAS, the Ciry can expedite the removal ofthese diseased trees by declaring them a
publie nuisance.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn
Center, Minnesota that:
1. The diseased trees at the following addresses are hereby declared to be a public
nuisance:
PROPERTY OWNER PROPERTY ADDRESS TREE
ANGELA LYNN WUENSCH 6400 GIR.ARD AVE N 95
DANIEL M KROTZ 1619 73� AVE N 96
ROBYN K AMOS JR 5331 NORTHPORT DR 98
BEVERLY BOWEN 6806 ABBOTT AVE N 99
SHEILA JOHNSON 6810 COLFAX AVE N 100-102
2. After twenty (20) days from the date of the notice, the property owner(s) will
recei�e a second written notice providing five (5) business days in which to contest
the determination of the City Council by requesting, in writing, a hearing. Said
request sha11 be filed with the City Clerk.
3. After five (5) days, if the property owner fails to request a hearing, the tree(s) shall
be removed by the City. All removal costs, including legal, financing, and
administrative charges, shall be specially assessed against the property.
RESOLUTION NO.
Au�ust 27, 2007
Date Mayor
ATTEST:
City Clerk
The motion for the adoption of the foregoing resolution was duly seconded by member
and upon vote being taken thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
I
�������.�✓�,,,.v 1�+�.�y,��� �����+r
I
COUNCIL ITEM MEMORANDUM
TO: City Council
FROM: Curt Boganey, City Ma�n���!��
DATE: August 22, 2007
SUBJECT: Resolution Ordering Corrections of Hazardous Conditions 4501
Woodbine Lane
Recommendation:
I recommend adoption of the subject resolution declaring the property at 4501 Woodbine
Lane to be a hazardous building and authorizing the City Manager to abate the nuisance
Background:
An inspection of the subject property on March 7 2007 revealed open doors, and
windows, broken wi�dows, trash, broken sereens, and debris strewn about the home and
yazd. The property owner of record Mr. Monsuru was cited for these offenses but failed
to secure the property and clean the yard and abate the public nuisances. The owner has
lost the property to foreclosure and the City has sought voluntary compliance from
Mortgage holder, nBank of Lawrenceville, Geogia. To date the bank has been
unresponsive to our petition.
Therefore, we ask the City Council to adopt the findings of the Neighborhood Liaison
Officer and Building Official as to the abandonment of the home and the public nuisances
existing thereon and furthermore authorizing the City Manager to abate the nuisance by
securing the doors and windows of the dwelling and within 7 days cause the complete
removal of alI trash, junk, furniture, appliances; debris and the like.
Fiscal Issues:
The estimated direct cost of securing the property and clean up is expected to cost less
than $1,OOO.An accurate record of a11 actual cost will be kept including administrative
time, attorney fees, and all other cost of order enforcement. A statement demanding
payment for these costs will be sent to the landowners to pay the sazne. Failure to pay will
result in lien against the property.
C: Gary Eitel
Larry Martin
i
Member introduced the following resolution
and moved its adoption:
RESOLUTION NO.
RESOLUTION ORDERING THE CORRECTION OF HAZARDOUS
CONDITIONS AND FURTHER FOR TI-� ABATEMENT OF PUBLIC
NUISANCES, SAFETY AND HEALTH HAZARDS WITH RESPECT TO
THAT REAL ESTATE LOCATED AT 4501 WOODBINE LANE N. 55429
BROOKLYN CENTER, MIlVNESOTA 55430 LEGALLY DESCRIBED AS
LOT 5, BLOCK 2, NORTHBROOK MANOR 2D ADDITION, ACCORDING
TO THE PLAT ON FILE WITH THE REGISTRAR OF TITLES, HENNEPIN
COUNTY, NIINNESOTA IN THE CITY OF BROOKLYN CENTER,
HENNEPIN COUNTY, MINNESOTA
WHEREAS, Minnesota. Statutes 463.15 et seq defines a hazardous building or
hazardous property as any building or property which because of inadequate maintenance,
dilapidation, physical damage, unsanitary condition or abandonment constitutes a fire hazard ar
hazard to the public safety or health; and
WHEREAS, the correction of hazardous conditions and the abatement of public
nuisances is necessary to protect the health, safety and welfare of the public by elimination of
dangerous conditions, attractive nuisances and for the elimination of hazborage for vermin, rats
and other animals who may pose a danger to the public safety and health thereby providing for
more sanitary and safe conditions and to further protect the integrity and desirability of
neighborhoods; and
WHEREAS, 3-103E, 12-1101 and 12-1102 of the Ordinances of the City of Brooklyn
Center provides that any building or portion thereof which is daxnaged, dilapidated or unsafe or
abandoned may be declared to be a hazardous building and fiuuthher be declared unfit for human
habitation and upon such declazation, the owner thereof shall make the property safe and secure
immediately so that it is not hazardous to the health, welfare and/or safety of the public and does
not constitute a public hazard; and
VVHEREAS, said single family dwelling was abandoned by its fee owner, Ajasa Monsuru
i m rt a ee nB N. A. whose address is
and a mortgage foreclosure was undertaken by h s o g g ank,
Lawrenceville, Georgia who presently has an interest in the property and will beeome the fee
owner; and
WHEREAS, an inspection by Police Department Neighborhood Liaison Officer Adam
Bald, in March 2007, revealed that the doors and windows of the home were open and some
windows were broken, there was trash, broken screens, furniture, appliances and debris strewn
about the home and yard and Monsuru was cited for these offenses but has subsequently failed to
secure the home and clean the yard and abate the public nuisances because he has lost ownership
and possession of the dwelling; and
WHEREAS, because the dwelling is not secure and is open to the public such that
persons may enter at will and is subject to crime and further deterioration, the Building Official
will temporarily secure it; and
WHEREAS, said properry is said to be encumbered by a mortgages dated 22 August
2005 in favor of nBank of Lawrenceville, Georgia and 22 August 2005 in favor of M& I Bank
FSB of Las Vegas, Nevada; and
WHEREAS, the City Council of the City of Brooklyn Center adopts the findings of the
Neighborhood Liaison Officer and Building Official as to the abandonment of the home and the
public nuisances existing thereon;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn
Center, Minnesota:
1. The City Council finds that the single family dwelling at 4501 Woodbine Lane N.
Brooklyn Center, Minnesota. 55429 is a hazardous building because of
abandonment which has left the dwelling open to the elements and open to the
public and the conditions thereon constitute a public nuisance
2. The abatement of the public nuisances and hazazdous conditions at said premises
is hereby ordered by the City Council of the City of Brooklyn Center as follows:
I
dows o
f the dwellin to secure it
Immediate securing of the doors and wui S
against entry by unauthorized persons and to secure it against the
elements, animals, birds and the like and within 7 days cause the
complete removal of all trash, junk, furniture, appliances, debris and the
like.
The City Manager is hereby authorized to cause and carry out the abatement described
herein and to perform a11 other tasks and functions reasonably incident thereto and to keep an
accurate record of the cost of all actions and proceedings herein, including administrative time,
enforcement o
f this Order and
attorne s fees, costs and disbursements, and a11 other costs of the
I Y
to send a statement of such costs to the landowners and occupants who are directed herewith to
pay the same.
Au¢ust 27, 2007
Date Mayor
ATTEST:
City Clerk
The motion for the adoption of the foregoing resolution was duly seconded by member
and upon vote being taken thereon, the following voted in favor thereof
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
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AGENDA
CITY COUNCIL/ECONOMIC DEVELOPMENT AUTHORITY WORK SESSION
August 13, 2007
Immediately Following Regular City Council and EDA Meetings Which Start at 7:00 P.M.
City Council Chambers
A copy of the full City Council packet is available to the public. The packet ring binder is
located at the front of the Council Chambers by the Secretary.
ACTIVE DISCUSSION ITEMS
1. Rental Housing Strategies August 27, 2007
Pending List for Future Work Sessions
Date Undetermined
1. Farmers Market City Council- November
2. City Manager's Performance Review Process September
3. 2011 Brooklyn Center Celebration City Council September
4. Bass Lake Road Landscape Plan September
III
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MEMORANDUM COUNCIL WURK SESSION
DATE: August 23, 2007
TO: Brooklyn Center City Council
FROM: Curt Boganey, City Manage��'�
SUBJECT: Rental Housing Strategies
COUNCIL ACTION REQUIRED
I Monday, I will share the status of a staff process underway that will lead to a strategy to
assure irnproved residential rental properties in single and multi-family neighborhoods.
Your comments and direction in this regard will be appreciated.
BACKGROUND
At a previous City Council meeting I was asked to provide the City Council with a report
on proposed rental housing strategies. At that meeting I indicated that I should be able to
do so in August.
The information attached is a draft synopsis of the results of a strategy session held with
h usin nei borhoods. As ou will
u f rental o
ke staff on August 6 around the iss e o g Y
Y
r final set of recommendations ma
com leted befo e a
note additional work has et to be Y
Y P
be made. All of the teams have been meeting and final results should be complete as
outlined in the memo.
T'he goal is to assure that our approach to rental neighborhoods is multi-disciplinary,
comprehensive, and effective. When this effort is complete in September we will have a
set of goals, strategies, objectives, success indicators and implementation action plans.
Most importantly we should ha.ve consensus and focused staff coordination.
On Monday I will discuss the process and where are to date, so that you may provide
feedback for our use.
COUNCIL POLICY ISSUES
Is the staff direction as described consistent with the City Council goals and objectives7
G:1City Manager\WORKSESSION.MEM.FRMdoc
Rental Nelghborhaod Improvement Strategy' Development
Meeting Notes Updates- August 6, 2007
Participants: Curt Boganey, Dan ]ordet, Gary Eitel, Jim Glasoe, Ron Boman, Scott Bechthold, Tim Gannon,
Scott Nadeau, Susan Myles, Terry Olson, Monique Drier, Becky Boie, Todd Blomstram,
Sharon Knutson, Viclde Schleuning, Tom Bubl'dz, Larry Martin, Deb Hanssen, Dan ]erzak,
Nancy Wojcik
Purpose: To develop strategies to maintain and improve residential rental properties in single and multi-family
neighborhoads, and to be abie to oommunicate these strategies in a clear and consistent manner
within and outside of the organization.
:3
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August 3, 2007
o Launched interdepartmental strategy development meeting for rental properties.
August 31, 2007
o Submission date for refined goals and strabegies, success indicators and action plan by
small teams (#1-4)
Sepbember 7, 2007
o Submisston date for final draft of rental neighborhood improvement strategic plan by
steerin committee.
9
Se entber 14, 2007
Pt
o Original large group will reconvene to review flnal draft of rental neighborhood
improvement strategic plan.
Teams: #1 Dan Jordet, Ron Boman, Tim Gannon, Tom Bublitr, Nancy Wojcik
#2 Gary Eitel, Scott Nadeau, Becky Boie, Larry Martin
#3 Jim Glasoe, Susan Myles, Todd Blomstrom, Deb Hanssen
#4 Scott Bechthold, Terry Olson, Sharon Knutson, Dan Jerzak
Steering Committ�: tbd- 6 persons, including 1 person from each team.
jtevieMred:
Vlsion (tfie dream)
The atizens of Brookiyn Center will enjoy clean, safe, attractive rental mmmunities and rental properties.
Rental residents and neighbors will enjoy and appreciate renting as a quality housing alternative.
Mlssion (the what and why)
To insure that rental housing and rentai housing communities are ciean, safe and attractive areas, valued
and appreciated by rental property residents and neighbors, creating a cohesive and respeclfui community
for aiL
The Vision and Mission statements wili be reviewed in order to address the feedback provided.
Some comments reflected aaountability of property owners and renters, self-management,
development of standards and meeting expectations, city responsible for reviewing and conveying
standards, and ownership.
1
Pgrformecj;,
1. A SWOT (Strengths, Weaknesses, Opportunities, and Threats) exercise was pertormed to analyze the
rental housing issue from numerous angles on August 3. Please refer to the SWOT Analysis Section for
more details.
2. Four interdepartmental teams were assembled to develop goals and objecctivves based on identified SWOT.
Please refer to the drafted goals and objectives fo� details.
1. Each team (#i-4) will have a follow up meeting to 1) Refne, clarify, and articulate the goais and
strategies 2) Develop success indicators (how we measure and know we have achieved the goals and
strategies, and 3) Develop an action plan that provides specific tasks and items required to address
identifled goals and strategies. A table has been provided for your convenience. Please oomplete by
August 31, 20U7.
2. The steeMng committee will revfew and compile the small team submittals into one document by
September 7, 2007.
3. The large group partidpants will meet on September 14, 2007 to review final document and
implementation.
2
SWOT Analysis for Rental Housing Issues
Strengths Weaknesses Promote what we
Geographic location Aging housing �PPO have
Leadership Lack of enforcement New homeowner/ Redevelop
Pienty of experience resources tools landlord packet- educ. losures
New Citizens Academy- Abil'ity to info
Model to promote oommunicate to non- Maintain/decrease Absentee landlords
multi-cultural bridge English speakers staffing levels aaountabiliry
building Lack of fire inspection Create new Inability to focus until
Support of legislators for rentals partnerships- corp., task compiete
Willingness to take on Little coo�dination lenders, nonprofits, Cultural clashJ values
challenges among city depts. relig., schools, etc. Generational
Broad community Henn Co court Open dialogue difFerenc�s/values�
support to aggressively system- lack of judge partnerships w/other Time period betwe�n
act support cities foreclosure sale
Not in denial-desire far 12-911: lack of Redefine the Unwillingness to take
positive change enforcement American dream aggressive actions
Community goal by Laek of consistent Rehab or acquire Apts Political reality-
staff enf. Over time to Work w/County opposed to minorities
Council`s support define acoeptability State programs low income
Licensing program Deciining State Fed Best practices- Poor lending pract+�s
exists resources opportunities Response to change-
Neighborhood Accepting minimum May qualify for intemal
infrastructure standards for housing assistance due to Atbtude in society-
improvement maintenance needs disrespect lack of
Info available on Loss of Comprehensive pian care
homestead and non- restaurants/retail Increase citizen hope Degradation stops
homestead (Annual Land use pat6ems- Faster response/ growrtli
daumentation) not compatible abatement development
Network of Low expectations for 12-911: add Lack of
owners/mgrs BC- intemal education for internal pride/ownership
Schoots, churches, extemal extemal Differing expectations
parks- Infrastructure Perceived no outlet Low inter. loans for Sustainability-
Little interdept turf for citizen concerns- ext. house improve. resources
protection a{so afraid to report TIF 3 funds External oompeting
Redevelopment issues fear of Admin. enf. flnes interest- for
opportunities retaliation Enhance feeling of resources, other
12-911 ordinance Lack of good data "wmmunity" cities, etc.
(rental) regarding rentai Vacant property regis. Public perception re�
properties New ownership rental
models Foreclosures- number
Time to re-evaluate of homes and apts
process- assess Economy- fental
adding other market
programs State laws- limiting
Mu�i-disciplinary aty authority ie.
partner approach Eminent domain,
A cohesive city-wide group homes, etc.
standard Peroeptton BC
Ability to work dumping ground for
w/Neighborhood section 8 and welfare
Watch townhome recipient housing
ass�iations
3
Goal and Stratesy Ideas:
Strenq�
1. City staff, cit(zens and elected officials will identify, understand and address issues related to rental housing by
effecttvely utilizing community resouroes (schools, religaus institutions, etc.) and existing tools and resources ((e.
City Code 12-911), and by exploiting redevelopment opportunities.
a.Promoting partnerships to educate and call community partners and stakeholders to action. Ie.
Neighborhood groups, retigious institutions, schools, aorporations, etc.
b.Develop irxentive programs for high performers and achievers. Ie. Reduce rentaf lioense fees
c. Develop and maintain interdepartmental education and collaboration. Ex. Police familiar with building
maintenance ordinance
d.Provide community educational servioes. Ie. New homeowner seminars, home improvement fairs,
owner/landlord seminars
e.Revitalize the community by energizing retail through redevelopment activities. Ie. Tax increment financing,
federal and state programs, opportunity sibe, development standards- raise expectations.
Thre�
1. Influence legislature regarding foreclosure and lending practices at State levei.
a.Access current legislative proposal regarciing foreclosures and lending practices. Prepare testimany of
vicdms. Identify predatory and abusive lending actions. Identify contributing voices. Ie. LMC, Financiai
institutions, lobby groups, MHFA
2. Draw people together ta promote communication af owners, renters and the oanmunity. (CRMH initiatives)
a.Revitalize Neighborhood Watch Program. Devebp information packets for landlords, renters, and owners in
multiple languages.
3. Improve aocountability of rental property owners from a city, county and state level.
a.Revisit the existing ordinances and enforce them. Improve the enforcement of Non-homestead
classification and rental rules.
4. To improve the image of Brooldyn Center as a safe, healthy and desirable community.
a.Promote posltive media and communications. Promote successes and encourage successful outoomes.
Change the perception of redeveloprr�nt and "Share the Vision."
Weaknesses:
1. Effectively enforce existing city ordinances and policles.
a. Maximize resources through departrnent collaboration
b. Identify prforities
c. Increase internal education.
d. Ensu�e unifonnity of standards and procedures.
e. Devebp an effective reporting system (S.A.R.A.)
f. Provide a centralized database for intemal use.
2. Maximize efflaencies through department collaboration.
3. Develop and effective reporting system.
a. Evafuate current system
b. Expand and improve
c. Ensure uniformity
d. Provide internal education on the system and cross-training
4. Expand multicultural efforts
a. Provide increased education
b. Mediate neighborhood problems
I r I
c. Establish a multicu tu a taskforce
5. Through comprehensive redevelopment, decrease the average age and increase livability of housing.
a. Provide effective city facilitated ababements
b. Provide incentives for home improvements
c. Increase effective compliance and accountability, such as administrative enforcement fines
6. Increase effecctivve compliance and accountability of rental property owners and renters.
i 4
7. Simplify citizen access for reporting concerns.
a. Improve and expand the city website
b. Research 311 sysbem (Minneapolis)
c. Provide a centralized database to receive, assign and track complaints
8. Communicate strategies and results to residents.
a. Expand city website
b. Provide a community list-serve
c. Neighborhood meetings
d. Provide a communications 000rdinator
O�portunitips:
1. Create and develop cohesive comprehensive standards for property maintenance.
a, Establish a steering committee from relevant departments to identify, review and recommend standards
and expectations
b. Involve community (ali segments) in creating standards.
c. Compare what other cities are doing. Don� reinvent the wheel.
d. Provide a faster response for city-facilitated abatements.
e. Build and strengthen coordination and implementation af Ord 12-911.
2. Inform and promote property owners and residents of standards and expectations.
a. Develop a new homeowner/landlord padcet.
b. Utilize Channel 12, Sun Post, City newsletter, utility bilis
c. Provide for vacant property registration.
d. Redesign the city web page to be interactive.
e. Natlonal Night Out
f. Govemment Center
2. Build better 000rdination between deparlments.
a. Implement a city-wide work order system.
b. Provtde a common database for all departments.
c. Provide a documented process for rental management.
d. Put all on the Intranet.
3. Expand New Americans Academy to inciude anyone (use as a rrtodel to educate all citizens.)
a. Indude all departments in the academy and make sustainable.
b. City wide sector meetings
c. InternetJweb page
4. Create or enhance new par�erships to improve properties. I.e. Habitat for Humanity, oorporations, lenders,
Neighborhood Watch Groups, non-profits.
a. Identify cuITent partnerships citywide
b. Identify needs
c. Organize, coordinate and recruit new partne�ships
5. Promote activities and expectations that enhance the feeling of community.
a. Empower the neighborhoods
b. Expand sector meetings to intlude all city departments.
c. Expand neighborhood groups
5