2010-12-08 Amendment to PUD AgmtDoc. No. A 1164289
OFFICE OF THE COUNTY RECORDER
WRIGHT COUNTY, MINNESOTA
Certified Filed and/or Recorded on
12 -10 -2010 at 12:31
Check #: 24428 Fee: $ 46.00
Payment Code 02
Addl. Fee
Barb Gabrelcik, Interim County Recorder
Return to: (envel)
KNIGHT BARRY TITLE
330 E KILBOURN AVE #925
MILWAUKEE WI 53202
CITY OF ALBERTVILLE
AMENDMENT TO PLANNED UNIT
DEVELOPMENT AGREEMENT
TOWNE LAKES 6TH ADDITION
WHEREAS, the City of Albertville ( "City "), a Minnesota municipal corporation, and
Contractor Property Developers Company ( "Developer "), entered into an Agreement titled
"Planned Unit Development Agreement Towne Lakes 6h Addition" ( "Developer's Agreement ")
dated September 7, 2005 and recorded as document number 1003634 at the Wright County
Recorder's Office, Wright County, Minnesota; and
WHEREAS, Contractor Property Developers Company Developer is no longer the
owner of the real property described in the Developer's Agreement; and
WHEREAS, Kilber Section 36, LLC ( "Kilber "), a North Dakota limited liability
company, has purchased the property subject to the Developer's Agreement; and
WHEREAS, Kilber seeks to extend and modify the completion dates for the municipal
and on- and off -site improvements as laid out by the Developer's Agreement; and
WHEREAS, concurrent with the execution of this Amendment, Kilber will provide the
City with a letter of credit as contemplated by this Amendment; and
WHEREAS, Kilber acknowledges that it is bound by the Developer's Agreement by
virtue of its ownership of the property subject to the Developer's Agreement and all references
hereafter in this Amendment and in the Developer's Agreement to "Developer" shall mean
Kilber Section 36, LLC;
NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY AGREED, in
consideration of each party's promises and considerations herein set forth, as follows:
1. Paragraph 3A of the Developer's Agreement is modified to read as follows:
A. On or before September 30, 2011, the Developer shall construct those Municipal
Improvements located on Said Plat as detailed in the Plans and Specifications for
Towne Lakes Sixth Addition, as prepared by Westwood Professional Services dated
February 8, 2005 and revised September 22, 2005 and on file with the City Clerk,
including completion of all items listed on the attached Exhibit A, except that
completion of the following items may be delayed as follows:
i. Sidewalks shall be installed consistent with the timeline set out in
this subparagraph:
a. On the south Side of 68th Street, between Linwood Drive and
Wright County State Aid Highway No. 19 (the Shoppes at
Towne Lakes 2 plat), the sidewalk shall be installed by
1
Developer when a building is constructed on the lot adjacent to
68d' street where there is no sidewalk currently.
b. On the north Side of W' Street, between Linwood Drive and
Wright County State Aid Highway No. 19 (Outlot A to Said
Plat), the sidewalk shall be installed by Developer when a
building is constructed on the lot adjacent to 68th street, and such
sidewalk shall extend from the western edge of said lot east to the
intersection of 68h Street and Linwood Drive.
c. On the west side of Linwood Drive north of 68h Street, the
sidewalk shall be installed by Developer when a building is
constructed on a lot adjacent to Linwood Drive, and such
sidewalk shall extend from 70th Street to 68th Street.
d. On the east side of Linwood Drive, north of 68d' Street, the
sidewalk shall be installed by Developer adjacent to the
townhomes abutting Linwood Drive prior to the issuance of an
occupancy permit for such townhomes, and such sidewalk shall
extend south to the intersection of Linwood Drive and 681' Street.
e. On the west side of Lancaster Way, north of 68th Street, the
sidewalk shall be installed by Developer adjacent to the
townhomes abutting Lancaster Way prior to the issuance of an
occupancy permit for such townhomes, and such sidewalk shall
extend south to the intersection of Lancaster Way and 68th Street.
f. Notwithstanding the foregoing, all sidewalks shall be installed no
later than the earlier of 1) the time of issuance of the final
occupancy permit for the last residence to be constructed on Said
Plat or 2) 10 years from the date of this Agreement.
ii. Final finish grading of lots shall be performed prior to issuance of an
occupancy permit, but Developer shall ensure that the Subject
Property drains in a manner consistent with the grading and drainage
plan attached to the Developer's Agreement and shall immediately
correct any areas of the Subject Property that do not drain properly.
All such improvements shall be constructed at Developer's expense according to the
standards adopted by the City, along with all items required by the City Engineer.
The City Engineer will promptly inspect the Municipal Improvements upon their
completion and, when satisfactorily completed, recommend acceptance of such
improvements by the City Council. The City Council shall not unreasonably
withhold acceptance of such completed Municipal Improvements.
2. Paragraph 3E of the Developer's Agreement is modified to read as follows:
E. Developer shall provide the City with lien waivers from all contractors and
subcontractors engaged to construct said improvements on Said Plat. Should
Developer fail to provide the City with all applicable lien waivers, the City reserves
the right to draw upon Developer's surety and pay any contractors who performed
2
work on any Municipal Improvements whom: 1) Developer has failed to fully pay
for the performance of said work, and 2) have filed a timely lien against property
within Said Plat which contain Municipal Improvements; and 3) the contractor
performed such work after the date of this Amendment.
3. Paragraph 3G is hereby added to the Developer's Agreement to read as follows:
G. In Outlot B there is a sanitary sewer line and water line caused or installed by the
City along Lakewood Dr. running to the east end of this Outlot B to provide a loop
service to the adjacent development. No service tap extensions were installed to
serve Outlot B and need to be installed at a later date at Developer's expense. The
City hereby accepts the sanitary sewer line for purposes of commencing the
warranty period for such sewer line. Developer shall not have warranty
responsibility for the water line installed by the City in Outlot B in 2009.
4. Paragraph 4A of the Developer's Agreement is modified to read as follows:
a
i. Developer may either 1) complete the installation of paved private streets,
curb and gutter, street signs, traffic signs and drainage swales prior to the
issuance of an occupancy permit for any of the lots in Block 1 of Said Plat;
or 2) construct those portions of the paved private streets, curb and gutter,
traffic signs and drainage swales that correspond to the selected lots in Block
1 of Said Plat as shown in the phasing plan attached as Exhibit B to this
Amendment prior to receiving an occupancy permit for any building in such
phase. In the event Developer chooses to initially construct only portions of
the on- and off -site improvements consistent with the phasing plan,
Developer must construct Phase 1 first and may not construct buildings on
lots 1 -14 or lots 29 -42, Block 1 of Said Plat without first extending the
private drive north and connecting it to Lancaster Way between lots 38 and
39, Block 1 of Said Plat.
ii. For any lot in said Block 1 that Developer seeks an occupancy permit for,
the items listed in this subparagraph shall be completed prior to issuance of
the occupancy permit when weather permits and by the following June 301"
when an occupancy permit is sought after October 31" but before April 15th
when the Developer escrows for incomplete items as set out in this
subparagraph. The yard top soil, sod and seed in all yards, landscaping,
grading control per lot, bituminous or concrete driveways and parking lots,
berming, and like items as necessary, all as required by City ordinance, will
be completed as construction of the adjacent residences occurs. Front, side
and portions of the back yards of residential lots shall be sodded in
accordance with the Residential Development Standards and City
Ordinances as on file with the City Administrator's Office. Those portions
of the yards not required to be sodded may be seeded with grass seed or
sodded. In all cases permanent turf or grass must be established over all
3
areas of the lot not covered by a hard or impervious surface. The Developer
shall guarantee that all new plantings shall survive for two full years from
the time the planting has been completed or will be replaced at the expense
of the Developer. Erosion control and drainage swales shall be installed
upon initial grading of Said Plat, and street cleanup during project
development and residential home construction shall be continuously
performed by developer as necessary or direct by the City. The City shall
not be required to issue a certificate of occupancy for a completed residence
until the corresponding on and off site improvements (yard top soil, sod and
seed in all yards, landscaping, grading control per lot, bituminous or concrete
driveways and parking lots, berming, and like items as necessary) have been
completed, or, if completion occurs during winter or frozen ground
conditions, developer may receive an occupancy permit after escrowing cash
or other acceptable surety with the City in an amount sufficient to pay for the
completion of such incomplete on- and off -site improvements corresponding
to the building for which an occupancy permit is requested.
5. Paragraph 4B of the Developer's Agreement is modified to read as follows:
B. Developer shall, at its own expense, be responsible to ensure following items are
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:
i. Electrical power supply, to be provided by Xcel Energy or other such carrier;
ii. Natural gas supply, to be provided by Reliant Energy or other such carrier;
iii. Telephone service, to be provided by Sprint/United Telephone Company or
other such carrier;
iv. Cable TV service, to be provided by a local carrier;
In addition, the Developer shall, at its own expense, cause streetlights 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.
Developer shall install each streetlight at such time as a building permit is issued for
the lot adjacent to the location of the streetlight, provided that all streetlights shall be
installed no later than when the building permit is issued for the last residence to be
constructed on Said Plat. The Developer shall be responsible for streetlight
operational expense until such time as the City accepts the publicly dedicated streets
upon which such streetlights are located.
6. Paragraph 4D of the Developer's Agreement is hereby deleted.
0
7. Paragraphs 6A and 6B of the Developer's Agreement is hereby modified to read as
follows:
A. Developer will provide the City with an irrevocable letter of credit as security that
the obligations of the Developer under this contract shall be performed. Said letter
of credit or surety shall be in the amount of $171,733.50. Said letter of credit or
surety must meet the approval of the City attorney as to form and issuing bank.
B. The City may draw on said letter of credit or surety to complete work not performed
by Developer (including but not limited to on- and off -site improvements, Municipal
Improvements described above, landscaping, erosion control, and other such
measures), to pay liens on property to be dedicated to the City, to reimburse itself for
costs incurred in the drafting, execution, administration or enforcement of this
Agreement, to repair or correct deficiencies or other problems which occur to the
Municipal Improvements during the warranty period, or to otherwise fulfill the
obligations of Developer under this agreement.
8. Paragraphs 7A and 7B of the Developer's Agreement is hereby modified to read as
follows:
A. Periodically, as portions of the Municipal Improvements and landscaping are
completed, and when it is reasonably prudent, the Developer may request of the City
that the surety be proportionately reduced for that portion of the Municipal
Improvements and landscaping which have been fully completed and payment made
therefor. All such decisions shall be at the discretion of the City Council. The City's
cost for processing reduction request(s) shall be billed to the Developer. Such cost
shall be paid to the City within thirty (30) days of the date of mailing of the billing.
The City may at all times retain the letter of credit in an amount sufficient to
complete the unfinished Municipal Improvements and landscaping required by the
Developer's Agreement.
B. The Developer may request of the City a reduction or release of any surety as
follows:
i. When another acceptable letter of credit or surety is furnished to the City to
replace a prior letter of credit or surety.
ii. When all or a portion of the Municipal Improvements or landscaping have
been installed, the letter of credit or surety may be reduced pursuant to
paragraph 7A above, except that the City shall retain the letter of credit or
surety in the amount of 10% of the estimated construction price of the
Municipal Improvements during the first year of the warranty period and 5%
of the estimated construction price of the Municipal Improvements during
the second year of the warranty period.
iii. As to all requests brought under this paragraph, the City Council shall have
complete discretion whether to reduce or not to reduce said letter of credit or
surety.
9. Upon purchase of Outlot B of Towne Lakes 6tr Addition, Developer agrees to grant a
permanent public trail easement in the form attached as Exhibit C to this Amendment over a
portion of property adjacent to Lakewood Drive for a walking trail so that the City may
complete the paving of the walking trail, solely at the expense of the City.
10. Upon purchase of Outlot B of Towne Lakes 6th Addition, Developer agrees to grant a
permanent drainage and utility easement over all of Outlots A and B and over Lakewood
Drive all as depicted on the "Towne Lakes 7th Addition" proposed plat attached hereto as
Exhibit D.
11. The boulevard trees located on the Landscape Plan attached to the Developer's Agreement
shall be installed consistent with the timelines set out in this paragraph:
a. On the east side of Linwood Drive, upon the issuance of an occupancy permit for
townhomes abutting Linwood Drive, but only from such townhomes south to the
intersection of Linwood Drive and 68th Street.
b. On the west side of Linwood Drive, when the corresponding trees on the east side of
Linwood Drive are required to be planted.
c. On 68th Street west of Linwood Drive, upon the construction of a building abutting
68th Street.
d. On 68th Street between Linwood Drive and Lancaster Way, upon the issuance of an
occupancy permit for any of the townhome units abutting 68th Street.
e. On the west side of Lancaster Way, upon the issuance of an occupancy permit for
townhomes abutting Lancaster Way, but only from such townhomes south to the
intersection of Lancaster Way and 68th Street.
f. On the east side of Lancaster Way, upon the issuance of an occupancy permit for a
single family home, but only where trees are abutting the lot that contains such
single family home.
g. Notwithstanding the foregoing, all boulevard trees shall be installed no later than the
earlier of 1) the time of issuance of the final occupancy permit for the last residence
to be constructed on Said Plat or 2) 10 years from the date of this Agreement.
12. All landscaping plants other than boulevard trees shown on the Landscaping Plan attached
to the Developer's Agreement shall be installed consistent with this paragraph. Trees,
shrubs, berms and screening are to be planted and installed as shown on said Landscape
Plan. The Developer and all successor lot owners shall guarantee that all new trees and
plantings shall survive for two full years from the time the planting has been completed or
will be replaced at the expense of the Developer. Each lot owner will be required to post a
cash escrow with the City prior to the issuance of a building permit for such lot. The escrow
shall cover the estimated cost to purchase and install landscaping for that lot and the escrow
shall remain with the City for the full two year guarantee period to secure the performance
of Developer and its successor under this subparagraph 1K. If Developer or its successor
G
fails to install the landscaping or replace such landscaping that does not survive during the
guarantee period as required by this subparagraph, the City may draw on the cash escrow
and install such landscaping using the cash escrow. All such landscaping shall be installed
in the same building season as the final occupancy permit is issued. If weather conditions
prohibit the installation of such landscaping during the same building season as the
occupancy permit is issued, all such landscaping shall be installed during the following
building season.
13. It is expressly acknowledged that the townhouse development to be located on lots 1 -43,
Block 1 in Said Plat had building plans that were filed by a previous developer and that the
Developer does not have the rights to said building plans. Developer may submit alternative
building plans for review and approval by the City Council, but the City Council shall retain
discretion to approve or disapprove such plans, and the City Council acknowledges that
Developer will not be building the units shown on Exhibits E -1, E -2, E -3 and E -4 attached
to the Developer's Agreement unless Developer can successfully acquire the rights to such
plans. The City and Developer intend that any such alternative building plans will have
similar livable gross floor areas, garage sizes, exterior materials, percentage of exterior brick
or stone and similar exterior foundation landscaping.
14. In the event the Developer chooses to substitute a new letter of credit for the existing
Alliance Bank letter of credit, such replacement letter of credit, in addition to being
issued by a bank and in a form acceptable to the City Attorney, shall be in an amount of
$171,733.50
15. Regarding paragraph 2K of the Developer's Agreement, the City states that there is no
cash escrow for this item and the dollars for landscape plantings are part of the Letter of
Credit.
16. Regarding paragraph 2Q of the Developer's Agreement, the City acknowledges that the
amounts due by the developer under this paragraph have been paid in full.
17. Regarding paragraph 3C of the Developer's Agreement, the City acknowledges that the
water main necessary under this paragraph has been completed and there is no further
obligation by the developer under this paragraph.
18. Regarding paragraph 10 of the Developer's Agreement, the City acknowledges that fees
corresponding to the numbered lots and blocks under this paragraph in the amount of
$19,162 have been paid in full, but that the fees corresponding to Outlots A (which
Developer does not own and is not responsible for) and B have not been paid and will be
due at such time as such lots are replatted into numbered lots and blocks. The amounts
due at such time shall be based upon the rates in effect at the time of such replatting per
City ordinance.
19. Regarding paragraph 19 of the Developer's Agreement, the City acknowledges that fees
due under this paragraph in the amount of $14,328 have been paid in full.
7
20. City and Developer agree that Kilber Section 36, LLC, as successor to Contractor
Property Developers Company under the Developer's Agreement, shall not be liable for
any of Contractor Property Developers Company's obligations under developer's
agreements pertaining to the Towne Lakes first, second, fourth, or fifth additions, and
that Kilber Section 36, LLC's liability under the developer's agreement pertaining to
Towne Lakes Third Addition, recorded in the Wright County Recorder's Office as
document number 894487, shall arise only to the extent that Kilber Section 36, LLC is the
successor to Contractor Property Developers Company in the Towne Lakes Sixth Addition
Developer's Agreement. Notwithstanding this paragraph, Developer shall not be released
from any liability arising from a wetland permit covering land in the Towne Lakes Sixth
Addition, regardless of whether that permit also covers prior Towne Lakes additions.
21. Developer shall take all necessary steps to amend the NPDES permit for Said Plat to
make Developer the responsible party under such permit.
22. Developer's Agreement. Except as specifically altered by this Amendment, the terms of
the Developer's Agreement shall remain in full force and effect for the properties in
Towne Lakes 6h Addition.
Dated this Y,'- day of December, 2010.
CITY OF ALBERTVILLE,
By
Its Mayor
Kilber Section 36, LLC
By
Its
8
&
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STATE OF MINNESOTA )
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this day of
December, 2010, by Ron Klecker as Mayor of the City of Albertville, a Minnesota municipal
corporation, on behalf of the city and pursuant to the authority of e City Council.
`� MICHAEL C. COURT C
Y,� . NOTARY PUBLIC-MINNESOTA Notary Public
"'�, My Commission Expires Jan. 31, 2015 aY y
STATE OF MINNESOTA )
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this day of
December, 2010, by Bridget Miller, as Clerk of the City of Albertville, a Minnesota municipal
cow d pursuant to the authority of )#e City Council.
MICHAEL C. COURT
.5 NOTARY PUBLIC - MINNESOTA
My Commission Eom Jan. 31, 2015
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this ? day of
2010, by Jeff Kilber, president of Kilber Development, LLC, president of
ilber Section 36, LLC.
now no I
*"�n)-- MICHAEL C. COUM Notary Public
NOTARY PUBUC NN ROTA
My CommiMm ExpaeaJK 31, 2015
DRAFTED BY:
Couri, MacArthur & Ruppe P.L.L.P.
P.O. Box 369
705 Central Avenue East
St. Michael, MN 55376
(763) 497 -1930
0j
DRAFTED BY:
Couri, MacArthur & Ruppe P.L.L.P.
P.O. Box 369
705 Central Avenue East
St. Michael, MN 55376
(763) 497 -1930
10
EXHIBIT A
WORK TO BE COMPLETED
1. Submit televised logs and video of sanitary sewer system for City review and approval.
2. Submit record drawings for City review and approval.
3. Bituminous street patching and repairs, as required prior to final lifts.
4. Placement of final lifts of bituminous per approved plans.
5. Repair and/or replacement of damaged storm sewer.
6. Adjust castings as required for final lift of pavement.
7. Street striping and signage per approved plans.
8. Grade and restore boulevards and medians within public right -of -way.
9. Finish - grading of lots, ponds and drainage ways per approved plans
10. Remove all silt fence, debris piles, and hay bales from site.
11. Remove inlet protection from all storm sewer structures and clean storm sewer as
required.
12. Construct sidewalks per approved plans.
13. Installation of landscaping and plantings per approved plans.
12
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EXHIBIT C
PERMANENT TRAIL EASEMENT
THIS INDENTURE, made this day of , 2010, by and between
Kilber Section 36, LLC (Grantor); and the City of Albertville, Wright County, Minnesota,
(Grantee).
WITNESSETH:
WHEREAS, Grantor is the owner in fee simple of the real estate hereinafter described.
That for good and valuable consideration, the receipt of which is hereby acknowledged,
Grantor has this day bargained and sold, and by these presents, does bargain, sell and transfer
unto the City of Albertville its successors and assigns the following:
A permanent trail easement, for the purpose of constructing, maintaining, and public use
of a trail, over, under and across that area shown on the attached Trail Easement Exhibit
over that part of Outlot B, Towne Lakes 6th Addition, according to the recorded plat
thereof, Wright County, Minnesota, described as follows:
Beginning at a point on the southerly line of said Outlot B, also known as the northeast
corner of Lot 7, Block 7, TOWNE LAKES 5TH ADDITION; thence North 71 degrees 04
minutes 10 seconds West, along the northerly line of said Lot 7 and its westerly
extension, a distance of 197.08 feet; thence North 18 degrees 55 minutes 08 seconds East,
a distance of 40.00 feet; thence South 71 degrees 04 minutes 10 seconds East, a distance
of 221.26 feet; thence South 18 degrees 55 minutes 50 seconds West, a distance of 40.00
feet to a point which bears South 71 degrees 04 minutes 10 seconds East from the point
of beginning; thence North 71 degrees 04 minutes 10 seconds West, a distance of 24.17
feet to the point of beginning.
Grantor does hereby covenant with the City of Albertville, that it is lawfully seized and
possessed of the real estate above described.
IN WITNESS WHEREOF, the said parties have caused this instrument to be executed
the day and year first above written.
13
Kilber Section 36, LLC
By:
Its:
STATE OF MINNESOTA )
) s.s.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this day of
2010, by as of Kilber Section
36, LLC, Grantor.
SIGNATURE OF NOTARY
This instrument was drafted by:
Couri, MacArthur & Ruppe, P.L.L.P.
705 Central Ave. East
P.O. Box 369
St. Michael, NIN 55376
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EXHIBIT D
PERMANENT DRAINAGE AND UTILITY EASEMENT
THIS INDENTURE, made this day of December, 2010, by and between Kilber
Section 36, LLC (Grantor); and the City of Albertville, Wright County, Minnesota, (Grantee).
WITNESSETH:
WHEREAS, Grantor is the owner in fee simple of the real estate hereinafter described.
That for good and valuable consideration, the receipt of which is hereby acknowledged,
Grantor has this day bargained and sold, and by these presents, does bargain, sell and transfer
unto the City of Albertville its successors and assigns the following easement to the extent that
Grantor lawfully possesses such lands:
A permanent drainage and utility easement, for the purpose of constructing, maintaining,
and use of drainage and utility facilities over, under and across those areas of Outlot A of
Towne Lakes Sixth Addition, according to the plat of record as recorded in the Wright
County Recorder's Office, Wright County, Minnesota, depicted on the Attached Exhibit
A as 10 feet beyond the boundary of the wetlands as depicted on Outlot A, all of Outlot B
and all of Lakewood Drive, depicted on the proposed but unrecorded Towne Lakes 7 t
Addition.
IN WITNESS WHEREOF, the said parties have caused this instrument to be executed
the day and year first above written.
Kilber Section 36, LLC
By:
Its:
STATE OF MINNESOTA )
) s.s.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this day of December,
2010, by as
of Kilber Section 36, LLC, Grantor.
SIGNATURE OF NOTARY
This instrument was drafted by:
Couri, MacArthur & Ruppe, P.L.L.P.
705 Central Ave. East
P.O. Box 369
St. Michael, MN 55376
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