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1999-11-02 CUP/PUD Development Agreement . . CITY OF ALBERTVILLE CONDITIONAL USE/PLANNED UNIT DEVELOPMENT AGREEMENT PARK VIEW PLACE SECOND ADDmON THIS AGREEMENT, entered into this ZtJO day of ~~, 1999 by and between CASCADE II LAND COMPANY, LLC referred to herein as "Developer"; and the CITY OF ALBERTVILLE, County of Wright, State of Minnesota, hereinafter referred to as "City"; WITNESSETH: WHEREAS, Developer is the fee owner of the real property described in the attached Exhibit A, which real property is proposed to be subdivided and re-platted for development, and which subdivision, which is the subject of this Agreement, is intended to bear the new name "Park View Place Second Addition" and shall hereinafter be referred to in its entirety as "Said Plat" or "Subject Property"; and WHEREAS, Developer intends to subdivide 3.99 gross acres into Twenty-eight (28) medium density lots for purposes of constructing 28 T ownhome units; and WHEREAS, approval of a Conditional Use PermitIPlanned Unit I?evelopment is required to allow for the subdivision of unit lots from base lots as proposed by Developer; and WHEREAS, the City has given preliminary approval of Developer's plat of Park View Place Second Addition contingent upon compliance with certain City requirements including, but not limited to, matters set forth herein; and WHEREAS, the City requires that certain public improvements including, but not limited to bituminous street, curb and gutter, grading, drainage, sanitary sewer, water and 1 ,,)., "~' storm sewer (hereafter "Municipal Improvements") be installed to serve the Subject Property and be financed by Developer; and WHEREAS, the City further requires that certain on- and off-site improvements be installed by the Developer within Said Plat, which improvements consist of boulevards, top soil and sod, grading control per lot, bituminous or concrete driveways, parking lot, drainage swales, berming, street signs, street cleanup during project development, erosion control, and other site-related items; and WHEREAS, this Agreement is entered into for the pwpose of setting forth and memorializing for the parties and subsequent owners, the understandings and covenants of the parties concerning the development of the Said Plat and the conditions imposed thereon; NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY AGREED, in consideration of each party's promises and considerations herein set forth, as follows: 1. Conditional Use Permit. Developer is hereby granted a Conditional Use Permit to allow the development of Said Plat as a Planned Unit Development, provided the following conditions are met on a continuing basis: A. A property owners' association is established in compliance with Sections 1100 and 2700 of the City Zoning Ordinance and a maintenance agreement and declaration of covenants, conditions, and restrictions are approved by the City . Attorney and recorded against the title to each lot within Said Plat. B. Outlots A and B of Said Plat shall remain unbuildable as "common lots" and Developer agrees that no structures of any nature or purpose shall be built on said Outlots, nor may said Outlots be replatted for any purpose. Jr' C. If signs are desired on site to identify the Subject Property, tJien plans shall be submitted for review and approval of the City Planner. D. Any exterior lighting must be arranged to deflect light away from the public streets. The source of all lights shall be hooded. The style, height, strength/wattage and distribution of exterior lights conforms to the approved lighting plan attached as Exhibit B. E. Trees, shrubs and screening are planted and installed as shown on the landscape 2 ) ,,,,,,;i"'J'{~ ' ~. plan attached as Exhibit C. F. The minimum garage size within Said Plat is 480 square feet. G. Developer agrees to remain in compliance with the terms of this Agreement. H. The minimum square footage of the living area (excluding the garage) of the townhomes shall be no less than 1,529 square feet. I. Developer shall construct sidewalks in the locations as directed by the City Engineer. 1. The outside siding surface of the townhomes shall consist only of maintenance- free siding. 2. Construction of Municipal Improvements. A. Developer shall pay all cost associated with installation of municipal water, sanitary sewer, storm sewer, grading, curb and gutter and bituminous paving along Lachman A venue, in accordance with the plans and specifications prepared by SEH-RCM consulting engineers, dated May 11th, 1999, including expenses related to engineering and other professional review as may be deemed necessary by the City. The City shall cause the construction and installation of the aforementioned Municipal Improvements. The estimated cost of said improvements, including engineering fees, is $163,500.00. The City shall invoice Developer for the actual costs associated with the above- referenced Municipal Improvements as they are incurred by the City. Developer agrees to and shall pay each invoiced amount within thirty (30) days of mailing by the City. If Developer fails to pay any such invoiced amount within the thirty (30) day period, then Developer agrees that any and all overdue amounts may, at the City's option, be specially assessed against the lots within Said Plat, along with reasonable finance, legal and administrative costs incurred by the City as a result of Developer's failure to timely pay said invoice amounts. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statutes section 429.081. In addition, the City may take necessary legal action to recover any unpaid amounts and shall be entitled to attorneys fees incurred as a result of such action. 3 B. The City shall have the City Engineer present on Said Plat for inspection purposes at all times (or such times as the City may deem necessary) during the construction and installation of said Municipal Improvements. 3. Construction of On- and OfT-Site Improvements. A. Developer shall construct all on- and off-site improvements including installation of boulevards, street signs, traffic signs, yard top soil, sod or seed in all yards, grading control per lot, bituminous or concrete driveways and parking lots, drainage swales, berming, and like items as necessaI)', street cleanup during project development, and erosion control, all as required by City ordinance. Said on- and off-site improvements shall be installed no later than October 31,2001, with the exception of erosion control, drainage swales and berming, which shall be installed upon initial grading of Said Plat. B. Developer shall, at its own expense, cause the following items to be installed within the development, all such items to be installed under ground, within the street right of way or such other location as may be approved by the City Engineer, accessible to all lots and in compliance with all applicable state and local regulations: 1. Electrical power supply, to be provided by Northern States Power or other such carrier; 11. Natural gas supply, to be provided by Minnegasco or other such carner; 111. Telephone service, to be provided by Sprint/United Telephone Company or other such carrier; !t" *' IV. Cable TV service, to be provided by a local carrier; In addition, the Developer shall, at its own expense, cause street lights and street signs to be of such type and to be installed at such locations as required by the City Engineer and in conformance with the Manual on Uniform Traffic Control Devices. C. Developer has submitted a utility plan for Said Plat showing all existing and proposed utility lines and easements, attached hereto and incorporated herein 4 , . as Exhibit D. Developer agrees to have all utilities installed according to this Exhibit D. D. Developer shall install silt fencing in back of all curbing within 30 days after said curbing is installed, or 7 days after the "small utilities" (gas, phone, electrical and cable television) have been installed, whichever occurs sooner. Developer shall be allowed to substitute hay bales for a 22-foot section of silt fencing on each lot for the pwpose of allowing construction vehicles to pass from the street to each lot. No construction vehicles shall pass from the street to the lots except through such designated 22-foot section of hay bales. Developer shall remove all hay bales and silt fencing from each lot as sod is installed upon said lot. E. Notwithstanding the requirements of subparagraph 3A above, the Developer shall install to the City's satisfaction improvements for each lot or parcel within sixty (60) days of the date that a certificate of occupancy (temporary or permanent) is issued by the City for a building located on the lot, unless the certificate of occupancy is issued after October 1st and before March 30th in any given year, in which case said improvements shall be so completed by the following June 15th. 4. Intended Use of Subdivision Lots. The City and Developer agree that the lots in Said Plat are intended only for medium density multiple family residential Townhome use in the number and the configuration as are shown on the attached Exhibit E. Developer shall only construct Townhomes in the number and configuration shown on the attached Exhibit E, unless Said Property is rezoned by the City in the future. 5. Abandonment of Project - Costs and Expenses. In the event Deyeloper should abandon the proposed development of the Subject Property, the dtY's costs and expenses related to attorney's fees, professional review, drafting of this Agreement, preparation of the feasibility report, plans and specifications, and any other expenses undertaken in reliance upon Developer's various assertions shall be paid by said Developer within thirty (30) days after receipt of a bill for such costs from the City. In addition, in the event the Developer abandons the project, in whole or in part, .' . conventional lawn mowing equipment, Developer agrees to pay all costs the City may incw- in taking whatever action is reasonably necessary to provide ground-cover and otherwise restore Said Plat to the point where undeveloped grounds are level and covered with permanent vegetation sufficient to prevent continuing soil erosion from Said Plat and to facilitate mowing of Said Plat. In the event that said costs are not paid, the City may specially assess such costs against the lots within Said Plat and/or take necessary legal action to recover such costs, including attorneys fees. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statutes section 429.081. 6. Developer to Pay City's Costs and Expenses. It is understood and agreed that the Developer will reimbw-se the City for all reasonable administrative, legal, planning, engineering and other professional costs incurred in the creation, administration, enforcement or execution of this Agreement and the approval of Said Plat, as well as all reasonable engineering expenses incurred by the City in designing, approving, installing, and inspecting said Improvements described above. Developer agrees to pay all such costs within 30 days of billing by the City. If Developer fails to pay said amounts, then the City may specially assess such costs against the lots within Said Plat. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statutes section 429.081. Developer has the right to request time sheets or work records to verify said billing prior to payment. 7. Erosion and Siltation Control. Before any grading is started on any site, all erosion control measures as shown on the approved erosion control plan shall be strictly complied with as set forth in the attached Exhibit F. Developer shall also install all erosion control measures deemed necessary by the City Engineer should the erosion control plan prove inadequate in any respect. 8. Drainage Requirements. Developer shall comply with all requirements set forth for drainage into any county ditch or other ditch through which water from Subject If Property may drain, and shall make any necessary improvements or go through any necessary procedw-es to ensw-e compliance with any federal, state, county or city requirements, all at Developer's expense. 9. Maintain Public Property Damaged or Cluttered During Construction. Developer agrees to assume full financial responsibility for any damage which may occw- to public propelty including but not limited to streets, street sub- base, base, bituminous smface, cw-b, utility system including but not limited to watermain, sanitmy sewer or storm sewer when said damage occurs as a result of the activity 6 which takes place during the development of Said Plat The Developer further agrees to pay all costs required to repair the streets and/or utility systems damaged or cluttered with debris when occurring as a direct or indirect result of the construction that takes place in Said Plat. In the event the Developer fails to clean up, maintain or repair the damaged public property mentioned above, the City shall provide the Developer with a Notice of its intent to clean up, repair, or maintain such public property. Developer shall have thirty (30) days from the date of mailing of such notice to effect such clean up, repair or maintenance of said public property to the satisfaction of the City Council. In the event that Developer fails to so clean up, repair or maintain said public property, the City may undertake making or causing it to be cleaned up, repaired or maintained When the City undertakes such activity, the Developer shall reimburse the City for all of its expenses within thirty (30) days of its billing to the Developer. If the Developer fails to pay said bill within thirty (30) days, then the City may specially assess such costs against the lots within Said Plat and/or take necessary legal action to recover such costs and the Developer agrees that the City shall be entitled to attorneys fees incurred by the City as a result of such legal action. Developer knowingly and voluntarily waives all rights to appeal said special assessments under Minnesota Statutes section 429.081. 10. Temporary Easement Rights. Developer shall provide access to the Subject Property at all reasonable times to the City or its representatives for purposes of inspection or to accomplish any necessary work pursuant to this Agreement. 11. Miscellaneous. A. Developer agrees that all construction items required under this Agreement are items for which Developer is responsible for completing and all work shall be done at Developer's expense. B. If any portion, section, subsection, sentence, clause, paragraph or phrase of this Contract is for any reason held invalid by a Court of competent jurisdiction, such decision shall not affect the validity of thf remaining portion of this Contract. C. Ifbuilding permits are issued prior to the completion and acceptance of public improvements, the Developer assumes all liability and the costs resulting in delays in completion of public improvements and damage to public improvements caused by the City, Developer, its contractors, subcontractors, materialmen, employees, agents, or third parties. 7 , . I. 1. D. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Contract. To be binding, amendments or waivers shall be in writing, signed by the parties and approved by written resolution of the City Council. The City's failw-e to promptly take legal action to enforce this Contract shall not be a waiver or release. E. This Contract shall run with the land and shall be recorded against the title to the property. Mter the Developer has completed all work and obligations required of it under this Contract, at the Developer's request, the City will execute and deliver to the Developer a release of its obligations under this Agreement. F. The Developer represents to the City that Said Plat complies with all City, county, state and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. If the City determines that Said Plat does not comply, the City may, at its option, refuse to allow construction or development work in the plat until the Developer so complies. Upon the City's demand, the Developer shall cease work until there is compliance. G. Prior to the execution of this Agreement and prior to the start of any construction on the Subject Property, Developer shall provide the City with evidence of good and marketable title to all of Subject Property. Evidence of good and marketable title shall consist of a Title Insurance Policy or Commitment from a national title insurance company, or an abstract of title updated by an abstract company registered under the laws of the State of Minnesota. H. Developer shall comply with all water, ponding and wetland related restIictions, if any, required by the City of Albertville and/or any applicable provisions of State and Federal law. 1t" .. The Albertville City Council reserves the right to allocate wastewater treatment capacity in a manner it finds to be in the best interests of the public health, safety and welfare. Developer shall not place any structtrre at an elevation such that the lowest grade opening is less than two feet above the highest known surface water level or ordinmy high water level or less than one foot above the 100-year flood level of any adjacent water body or wetland. If sufficient data on high 8 water levels is not available, the elevation of the line of permanent aquatic vegetation shall be used as the estimated high water elevation. When fill is required to meet this elevation, the fill shall be allowed to stabilize and construction shall not begin until the property has been approved by the Building Inspector or a professional soils engineer. 12. Violation of Agreement. A. In the case of default by the Developer, its successors or assigns, of any of the covenants and agreements herein contained, the City shall give Developer thirty (30) days mailed notice thereof (via certified mail), and if such default is not cw-ed within said thirty (30) day period, the City is hereby granted the right and the privilege to declare any deficiencies governed by this Agreement due and payable to the City in full. The thirty (30) day notice period shall be deemed to run from the date of deposit in the United States Mail. Upon failure to cure by Developer, the City may thence immediately and without notice or consent of the Developer complete the Developer's obligations under this Agreement, and specially assess the costs thereof against the lots within Said Plat and/or bring legal action against the Developer to collect any sums due to the City pursuant to this Agreement, plus all costs and attorney's fees incurred in enforcing this agreement. Developer knowingly and voluntarily waives all statutory rights to appeal said special assessment under Minnesota Statutes section 429.081. B. Breach of any of the terms of this Contract by the Developer shall be grounds for denial of building permits and/or revocation of the Conditional Use Permit. 13. Dedications to the City. !l"- .. A. Municipal Improvement Dedications: The Developer, upon presentation to the City of evidence of good and marketable title to Su~iect Property, and upon completion of all construction work and certification of completion by the City Engineer, shall make the following dedications to the City: 1. Developer shall dedicate easements to the City over, under and across all o'ails, and shall dedicate all parks within Said Plat, if any, to the City, in a form and with legal descriptions acceptable to both the City 9 Engineer and City Attorney. 2. Developer shall dedicate to the City all streets within Said Plat. B. Park and Trail Dedications: Developer acknowledges and agrees that in order to satisfy the City's park dedication requirements for Said Plat, Developer shall pay the City a cash payment totaling $36,400.00, consisting park dedication fees attributable to the residential portion of Said Plat (28 lots x $1,300.00 per lot). All such park dedication fees shall be paid prior to release of Said Plat by the City. 14. Phased Development. If the plat is a phase of a multi-phased prelimimuy plat, the City may refuse to approve final plats of subsequent phases until public improvements for all prior phases have been satisfactorily completed. Development of subsequent phases may not proceed until Development Contracts for such phases are approved by the City. Approval of this phase of the Development shall not be construed as approval of future phases nor shall approval of this phase bind the City to approve future Development phases. All futtrre Development phases shall be governed by the City's Comprehensive Plan, Zoning ordinance, Subdivision ordinance, and other ordinances in effect at the time such future Development phases are approved by the City. 15. Indemnity. Developer shall hold the City and its officers and employees harmless from claims made by Developer and third parties for damages sustained or costs incurred resulting from Said Plat approval and development. The Developer shall indemnify the City and its officers and employees for all costs, damages or expenses which the City may payor incur in consequence of such claims, including attorney's fees. Third parties shall have no recourse against the City under this contract. 16. Assignment of Contract. The obligations of the Developer under. this Contract cannot be assigned without the express written consent of the CitY Council through Council resolution. 17. Limited Approval. Approval of this Agreement by the City Council and issuance of the Conditional Use Permit which is the subject of this agreement in no way constitutes approval of anything other than that which is explicitly specified in this Agreement. 18. Professional Fees. The Developer will pay all reasonable professional fees incurred 10 by the City as a result of City efforts to enforce the terms of this Agreement. Said fees include attorney's fees, engineer's fees, planner's fees, and any other professional fees incurred by the City in attempting to enforce the terms of this Agreement. The Developer will also pay all reasonable attorney's and professional fees incurred by the City in the event an action is brought upon a letter of credit or other surety furnished by the Developer as provided herein. 19. Plans Attached as Exhibits. All plans attached to this Agreement as Exhibits are incorporated into this Agreement by reference as they appear. Unless otherwise specified in this Agreement, Developer is bound by said plans and responsible for implementation of said plans as herein incorporated. 20. Integration Clause, Modification by Written A~reement Only. This Agreement represents the full and complete understanding of the parties and neither party is relying on any prior agreement or statement(s), whether oral or written. Modification of this Agreement may occur only if in writing and signed by a duly authorized agent of both parties. 21. Notification Information. Any notices to the parties herein shall be in writing, delivered by hand (to the City Clerk for the City) or registered mail addressed as follows to the following parties: City of Albertville c/o City Clerk P.O. Box 9 Albertville,~ 55301 Telephone: (612) 497-3384 Cascade II Land Company, LLC 555 3rd Street N.W. Elk River, ~ 55330 Telephone: (612) 441-8591 ". ,. 22. Agreement Effect. This Agreement shall be binding upon and extend to the representatives, heirs, successors and assigns of the parties hereto. 11 - .. .. . ~ Its Mayor ~) ts lerk L '- CASCADE IT LAND COMPANY, LL STATE OF MINNESOTA) ) ss. COUNTY OF WRIGHT ) 7t ~e foregoing instrument was acknowledged before me this 1- day of ,Jt.lA/ , 1999, by John A. Olson as Mayor of the City of Albertville, a Minnesota municipal corporation, on behalf of the city and pursuant to the authority of the City Council. . LINDA M. HOUGHTON I NOTARY PUBlIC-MIMIESOTA WRIGHT COUNTY My Collllllisalo. EIp/rMJaa. 31, 2lIOO .~.".~~""'~--''''N-*^''._V.~''.''''.~VN.. ~dA 1n~~ - ~ Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this <[ti day of ;Jo,,~ , 1999, by Linda Goeb, as Clerk-Administrat~i of the City of Albertville, a Minnesota mWlicipal corporation, on behalf of the city and pursuant to the authority of the City COWlciI. (lJC~' ~ 8 ANITA LENNEMAN :..!.! NOTARY PUBLIC. MINNESOTA \~ft WRIGHT COUNTY ~.. My Commission Expires Jan. 31,2000 Notary Public STATE OF MINNESOTA ) ) ss. 12 . . " .. ~ COUNTY OF WRIGHT ) --.::l) The foregoing instrument was acknowledgep before me this &,JP day of O~ , 1999, by ~t4I""",- &-Iw..J) , as President of Cascade II Land Company, LLC. DRAFTED BY: Couri and MacArthur Law Office P.O. Box 369 705 Central A venue East St. Michael, MN 55376 (612)497-1930 EUZABETH J. HAGLUND NOTARY PUBLIC. MINNESOTA My Comm. Exp. Jan, 31, 2000 Jf' . 13 .... ..... Exhibit List EXHIBIT A The Real Propelty subject to the Developer's Agreement is legally described as follows (after the filing of the Park View Place Second Addition Plat): Lots 1-5, Block 1 Lots 1-4, Block 2 Lots 1-5, Block 3 Lots 1-5, Block 4 Lots 1-5, Block 5 Lots 1-4, Block 6 OutIots A and B. 11". ,...,. " -, . EXHIBIT B Lighting Plan EXHIBIT C Landscape Plan EXHIBIT D Utility Plan EXHmIT E Site Plan EXHmIT F Erosion Control Plan /I'..