2002 CUP Development Agreement
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CITY OF ALBERTVILLE
CONDITIONAL USEIPLANNED UNIT DEVELOPMENT AGREEMENT
ALBERT VILLAS SIXTH ADDITION
THIS AGREEMENT, entered into this day of ,2002 by and
between EDINA DEVELOPMENT CORPORATION 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 platted for
development, and which subdivision, which is the subject of this Agreement, is intended to
bear the name "Albert Villas Sixth Addition" and shall hereinafter be referred to in its
entirety as "Said Plat" or "Subject Property"; and
WHEREAS, Developer intends to subdivide 54.2 acres into 82 single-family
residential lots for purposes of constructing 82 single-family residential units and one outlot
for dedication to the City for trail purposes; and
WHEREAS, approval of a Conditional Use Permit/Planned Unit Development is
required to allow for the aforementioned subdivision proposed by Developer; and
WHEREAS, the City has given preliminary approval of Developer's plat of Albert
Villas Sixth 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, sidewalk, trail( s), curb and gutter, grading, drainage, sanitary
1
sewer, municipal water and storm sewer and drainage ponds (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 paved streets,
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 purpose 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 MUTUALL Y
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 with flexibility
from the strict requirements of the City's Zoning Ordinance in relation to minimum
lot sizes, lot widths and set-back requirements. Unless othelWise explicitly set forth
in this Agreement, however, Developer must conform to the requirements of the
Albertville Zoning and Subdivision Ordinance, as well as all other applicable land
use regulations. Developer agrees that the following conditions will be met on a
continuing basis:
A. All grading, drainage, utility, wetland mitigation, and transportation issues that
arise during development of Said Plat shall be subject to review and approval by
the City Engineer.
B. Trees, shrubs, berms and screening are to be planted and installed as shown on
the landscape plans attached as Exhibit B and B-1. In addition Developer shall
plant native vegetation in the unpaved areas of Outlot A. 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
C. Developer shall, at its own expense, construct sidewalks in the locations shown in
the attached Exhibit C at the time of road construction.
2
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.
22. Plans Attached as Exhibits. All plans attached to this Agreement as Exhibits are
incorporated into this Agreement by reference as they appear. Unless othelWise
specified in this Agreement, Developer is bound by said plans and responsible for
implementation of said plans as herein incorporated.
23. Inte2ration Clause. Modification bv Written A2:reement Onlv. 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.
24. 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, MN 5530 I
Telephone: (763) 497-3384
Edina Land Corporation
700 Industry A venue
Anoka, MN 55303
Attention: Rick Lewondowski
Telephone: (763) 323-9086
25. A2:reement Effect. This Agreement shall run with the land and be binding upon and
extend to the representatives, heirs, successors and assigns of the parties hereto.
CITY OF ALBERTVILLE,
By
Its Mayor
By
Its Clerk
16
EXHIBIT A TO DEVELOPER'S AGREEMENT
The Real Property subject to the Developer's Agreement is legally described as
follows (after the filing of the Albert Villas Sixth Addition Plat):
Lots 1-13, Block 1
Lots 1-8, Block 2
Lots 1-7, Block 3
Lot 1, Block 4
Lots 1-17 Block 5
Lots 1-21 Block 6
Lots 1-25 Block 7
All said property in Albert Villas Sixth Addition plat, City of Albertville,
County of Wright, Minnesota.
EDINA DEVELOPMENT CORPORATION
By Rick Lewondowski
Its President
STATE OF MINNESOTA)
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this day of
, 2002, 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.
Notary Public
STATE OF MINNESOTA)
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this day of
, 2002, by Linda Goeb, as Clerk-Administrator of the City of
Albertville, a Minnesota municipal corporation, on behalf of the city and pursuant to the
authority of the City Council.
Notary Public
STATE OF MINNESOTA)
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this day of
, 2002, by Rick Lewondowski, as President of Edina Development
Corporation.
Notary Public
17
DRAFfED BY:
Couri and MacArthm Law Office
P.O. Box 369
705 Central Avenue East
St. Michael, MN 55376
(612)497-1930
18
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D. Developer shall, at its own expense, construct trails as shown on the attached
Exhibit C at the time of road construction. The Developer will provide all
necessary 20 foot easements, over, under and across all trails including but not
limited to easements over lots 14 and 15 of block 5 of Said Plat and property
located to the north of and outside of Said Plat as shown on Exhibit C. The
Developer shall construct the trails in a manner, and provide the necessary
easements in dimensions, acceptable to both the City Engineer and City Attorney.
E. The Developer shall install uniform mailboxes.
F. The Developer shall file property owners association covenants against all Lots
in Said Plat, said covenants to be submitted to the City Attorney for review and
approval and shall be subject to the requirements of Section 1100 and 2700 of the
City Zoning Ordinance.
G. Prior to the sale of any lot(s) within Said Plat, Developer shall provide the City
with a copy of the sales literature identifying the required thirty (30) foot wetland
setback building restrictions, the location of all future parks within Said Plat, and
the location of all sidewalks, trails and easements. Developer agrees that the
aforementioned sales literature will be distributed to all potential lot buyers
within Said Plat prior to the sale of any of said lots by Developer.
H. Other Use Restrictions. On all lots within 30 feet of any wetland, storm water
management pond or Wright County Ditch No.9, no structure, including, but
not limited to, outbuildings or accessory buildings, fence, planting or other
material shall be placed or permitted to remain which may damage or interfere
with the installation and maintenance of utilities, or which may change the
direction of flow or drainage channels in the easements, or which may obstruct
or retard the flow of water through drainage channels in the easements. The
easement area of each Lot including all improvements in it, shall be maintained
continuously by the Owner of the Lot, except for those improvements for
which a public authority or utility company is responsible. No Owner or other
person shall apply any fertilizers or herbicides within fifty (50) feet of any
drainage easement.
I. Developer shall install above ground lot comer markers along the entire
Eastern boundary of Blocks 4 and 5 of Said Plat where such lots borders Outlot
A to keep landowners from encroaching on Outlot A.
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.OO
2. Construction of MuniciDal ImDrovements.
A. The Developer shall construct those Municipal Improvements located on
and off Said Plat as detailed in the Plans and Specifications for Albert
Villas Sixth Addition, as prepared by and dated
, 2002 and on file with the City Clerk, said
improvements to include installation of bituminous street, curb and gutter,
water mains, sanitary and storm sewers, storm water ponding and site
grading. All such improvements shall be constructed according to the
standards adopted by the City, along with all items required by the City
Engineer. Unless the City Engineer specifies a later date, said
improvements shall be installed by October 31, 2002, with the wear course
of bituminous pavement to be installed after May 15, 2003, but before June
30, 2003.
B. The developer shall extend Kagan Avenue as a paved street to Highway 18
as shown in Exhibit D and provide 70 foot roadway easements, over, under
and across the Kagan A venue extension in form, legal description and
dimensions acceptable to the City Engineer and City Attorney. Said street
extension shall be constructed to City standards and all such construction
shall be performed in accordance with requirements as specified by the City
Engineer.
C. The Developer warrants to the City for a period of two years from the date
the City accepts the finished Municipal Improvements that all such
improvements have been constructed to City standards and shall suffer no
significant impairments, either to the structure or to the surface or other
usable areas due to improper construction, said warranty to apply both to
poor materials and faulty workmanship.
D. 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 work on any Municipal Improvements and whom Developer
has failed to fully pay for the performance of said work.
E. The City shall, at its option, 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
4
Improvements. Developer agrees to pay for all costs incurred by the City
during said inspections.
3. Construction o(On- and Off-Site Improvements.
A. Developer shall construct all on- and off-site improvements including
installation of paved streets, curb and gutter, boulevards, street signs, traffic
signs, yard top soil, sod and seed in all yards, grading control per lot,
bituminous or concrete driveways and parking lots, drainage swales, berming,
and like items as necessary, street cleanup during project development, and
erosion control, all as required by City ordinance. Front, side and portions of
the back yards of residential lots shall be sodded in accordance with the
Residential Development Standards 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 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. Said on- and off-site improvements
shall be installed no later than October 31, 2003, 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 Xcel Energy or other such
camer;
11. Natural gas supply, to be provided by Reliant Energy or other such
camer;
111. 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;
5
In addition, the Developer shall, at its own expense, cause street lights to be
installed at such locations as required by the City Engineer. Street signs shall
also be installed of such type and at such locations as required by the City
Engineer and in conformance with the Manual on Uniform Traffic Control
Devices.
C. 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 purpose 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.
D. Notwithstanding the requirements of subparagraph 3A above, the Developer
shall install to the City's satisfaction improvements for each lot or parcel prior
to 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 a certificate of occupancy shall be issued only if the
owner of the lot has entered into an escrow agreement with the City and
provided an escrow for 150% of the estimated cost of said improvements
pursuant to City Ordinance.
E. Developer shall install storm water retention/water quality ponds and basins
upon Said Plat as shown on the Grading, Drainage and Erosion Control Plan
attached as Exhibit E. Said ponds and basins shall be dedicated to the City,
and Developer shall provide the City with perpetual drainage easements over
such ponds. Said retention ponds and basins shall be installed prior to the
installation of utilities.
4. Intended Use of Subdivision Lots. The City and Developer agree that the
numbered lots in Said Plat are intended only for single-family residential use in the
number and the configuration as are shown on Said Plat. Developer shall construct
only one single family dwelling per numbered lot, unless Said Property is rezoned by
the City in the future into a classification which would allow additional units to be
constructed.
6
5. Suretv Reauirements.
A. Developer will provide the City with an irrevocable letter of credit (or other
surety as approved by the City Attorney) 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 representing the
sum of 100% of the estimated cost of the Municipal Improvements
( ), 50% of the on and off-site improvements ($49,200.00),
and in addition to the amount indicated above, provide the estimated cost for
landscaping/screening materials or in the alternative, in a manner acceptable
to the City, extend the letter of credit provided to the City pursuant to the City
of Albertville Conditional Use/Planned Unit Development Agreement Albert
Villas Fourth Addition to the extent of the estimated costs of
landscaping/screening materials related to Said Plat. 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, 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.
C. In the event that any cash, irrevocable letter of credit, or other surety referred
to herein is ever utilized and found to be deficient in amount to payor
reimburse the City in total as required herein, the Developer agrees that upon
being billed by the City, Developer will pay within thirty (30) days of the
mailing of said billing, the said deficient amount. If there should be an
overage in the amount of utilized security, the City will, upon making said
determination, refund to the Developer any monies which the City has in its
possession which are in excess of the actual costs of the project as paid by the
City.
D. Developer hereby agrees to allow the City to specially assess Developer's
property for any and all costs incurred by the City in enforcing any of the
terms of this agreement should Developer's letter of credit or surety prove
7
insufficient or should Developer fail to maintain said letter of credit or surety
in the amount required above within 30 days of mailing of written request by
the City. Should the City assess Developer's property for said costs,
Developer agrees not to contest or appeal such assessment and waives all
statutory rights of appeal under Minnesota Statutes, including Minnesota
Statute 429.081, to the extent ofthe costs identified in this agreement.
E. That portion of said cash, irrevocable letter of credit or other surety with
respect to the performance of Site Improvements shall be released upon
certification of the City Engineer and approval of the City Council that all
such items are satisfactorily completed pursuant to this Agreement.
F. In the event a surety referred to herein is in the form of an irrevocable letter of
credit, which by its terms may become null and void prior to the time at
which all monetary or other obligations of the Developer are paid or satisfied,
it is agreed that the Developer shall provide the City with a new letter of
credit or other surety, acceptable to the City, at least forty-five (45) days prior
to the expiration of the original letter of credit. If a new letter of credit is not
received as required above, the City may without notice to Developer declare
a default in the terms of this Agreement and thence draw in part or in total, at
the City's discretion, upon the expiring letter of credit to avoid the loss of
surety for the continued obligation. The form of any irrevocable letter of
credit or other surety must be approved by the City Attorney prior to its
Issuance.
6. Surety Release.
A. Periodically, as payments are made by the Developer for the completion of
portions of the Municipal Improvements, On- and Off-site Improvements,
and/or Landscaping Improvements and when it is reasonably pm dent, the
Developer may request of the City that the surety be proportionately reduced
for that portion of the Municipal Improvements 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.
B. The Developer may request of the City a reduction or release of any surety as
follows:
8
7.
I. When another acceptable letter of credit or surety is furnished to the
City to replace a prior letter of credit or surety.
11. When all or a portion of the Municipal Improvements or the on- and
off-site improvements or the Landscaping Improvements have been
installed, the letter of credit or surety may be reduced by the dollar
amount attributable to that portion of improvements so installed,
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, and the City shall retain
the letter of credit or surety in the amount of 25% of the estimated
landscaping costs for two years from the time of the installation of said
landscaping materials.
111. As to all requests brought under this paragraph B, the City Council
shall have complete discretion whether to reduce or not to reduce said
letter of credit or surety.
C.
The costs incurred by the City in processing any reduction request shall be
billed to the Developer and paid to the City within thilty (30) days of billing.
Abandonment of Proiect - Costs and Expenses. In the event Developer
should abandon the proposed development of the Subject Property, the City'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
representations 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, ceases substantial fIeld
work for more than nine (9) months, fails to provide suffIcient ground-cover
to prevent continuing soil erosion from the Said Plat, or fails to leave the
abandoned property in a condition which can be mowed using conventional
lawn mowing equipment, Developer agrees to pay all costs the City may
incur 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
9
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.
8. Develooer to Pay City's Costs and Exoenses. It is understood and agreed
that the Developer will reimburse 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 lights 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.
9. Erosion and Siltation Control. Before any grading is stm1ed 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 E. Developer shall also install all
erosion control measures deemed necessary by the City Engineer should the erosion
control plan prove inadequate in any respect.
10. Drainae:e Reauirements. Developer shall comply with all requirements set forth
for drainage into any county ditch or other ditch through which water from Subject
Property may drain, and shall make any necessary improvements or go through any
necessary procedures to ensure compliance with any federal, state, county or city
requirements, all at Developer's expense.
11. Maintain Public Prooertv Damae:ed or Cluttered Durine: Construction.
Developer agrees to assume full [mancial responsibility for any damage which may
occur to public property including but not limited to streets, street sub- base, base,
bituminous smface, curb, utility system including but not limited to watermain,
sanitary sewer or storm sewer when said damage occurs as a result of the activity
which takes place during the development of Said Plat. The Developer further
agrees to pay all costs required to repair the streets, utility systems and other public
10
property damaged or cluttered with debris when occurring as a direct or indirect
result of the construction that takes place in Said Plat.
Developer agrees to clean the streets on a daily basis if required by the City.
Developer further agrees that any damage to public property occurring as a result
of construction activity on Said Plat will be repaired immediately if deemed to be
an emergency by the City. Developer further agrees that any damage to public
property as a result of construction activity on Said Plat will be repaired within 14
days if not deemed to be an emergency by the City.
If Developer fails to so clean the streets or 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 necessmy
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.
12. Temoorary Easement Rie:hts. 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.
13. 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 the remaining
portion of this Contract.
C. If building 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
11
improvements caused by the City, Developer, its contractors, subcontractors,
materialmen, employees, agents, or third parties.
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 failure 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. After the Developer has completed all work and obligations
required of it under this Contract (including the expiration of the warranty
period), at the Developer's request, the City will execute and deliver to the
Developer a release of its obligations under this Agreement. However, at no
time shall the City release those provisions of this Agreement which, in the
City's sole judgment, contain continuing obligations. Said continuing
obligations include, but are not limited to, paragraphs 1, 4, 8, 10, 13, 14, 15,
16, 17, 18, 19,20,21,25.
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.
Developer agrees to obtain all required federal, state and local permits. 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
restrictions, if any, required by the City of Albertville, Wright County Soil
and Water District and/or any applicable provisions of State and Federal law.
12
I. Developer shall not place any structure at an elevation such that the lowest
grade opening is less than two feet above the highest known surface water
level or ordinary 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
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.
14. Violation of A2reement.
A. Except as otherwise provided in this Agreement, upon any default by
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 cured 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 th~s agreement. Developer knowingly and voluntarily waives all
statutory rights to appeal said special assessment under Minnesota Statutes
section 429.081.
B. Notwithstanding the 30-day notice period provided for in paragraph 14A
above, in the event that a default by Developer will reasonably result in
irreparable harm to the environment or to public propel1y, or result in an
imminent and serious public safety hazard, the City may immediately
exercise all remedies available to it under this agreement in an effort to
prevent, reduce or otherwise mitigate such ilTeparable harm or safety hazard,
provided that the City makes good-faith, reasonable efforts to notify the
Developer as soon as is practicable of the default, the projected irreparable
harm or safety hazard, and the intended actions of the City to remedy said
harm.
13
C. Paragraph 14A of this section shall not apply to any acts or rights of the City
lUlder the preceding paragraph, and no notice need be given to the Developer
as a condition precedent to the City declaring a default or drawing upon the
expiring irrevocable letter of credit as therein authorized. The City may elect
to give notice to Developer of the City's intent to draw upon the surety
without waiving the City's right to draw upon the surety at a future time
without notice to the Developer.
D. Breach of any of the terms of this Contract by the Developer shall be grolUlds
for denial of building permits and/or revocation of the Conditional Use
Permit.
15. Dedications to the City.
A. Municipal Improvement Dedications: The Developer, upon presentation to the
City of evidence of good and marketable title to Subject 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, lUlder and
across all trails to the City in a form and with legal descriptions
acceptable to both the City Engineer and City Attorney.
2. Developer shall dedicate drainage easements to the City over,
lUlder and across all drainage ponds located in Said Plat.
3. Developer shall dedicate to the City all roads, road and trail
right-of-ways, curbs, gutters, sewers and water mains and
utility easements located within Said Plat. Prior to the City's
acceptance of said dedications, Developer shall provide to the
City "As-Builts" of all sewers, water mains, and roads.
Acceptance by City of any dedication shall occur upon
passage of a resolution to such effect by the City Council.
4. Developer shall deed to the City in fee simple absolute Outlot
A of Said Plat.
B. Park Dedication Fees: Developer acknowledges and agrees that in order to
satisfy the City's park dedication requirements for the numbered lots in
Said Plat, Developer shall pay the City a cash payment totaling
14
$164,000.00. Said park dedication fees shall be paid prior to the release of
Said Plat by the City.
16. Phased Development. If the plat is a phase of a multi-phased prelimimu)' plat, the
City may refuse to approve fmal 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 future 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.
17. Indemnitv. 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.
18. Assie:nment 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.
19. 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.
20. Sanitary Sewer and Water Trunk Line Fees. Prior to the City releasing Said
Plat, Developer agrees to pay a trunk sewer charge in the amount of $75,880.00,
representing $1,400 per acre of Said Plat multiplied by 54.2 acres contained in
Said Plat. In addition, prior to release of Said Plat, Developer agrees to pay a
trunk water charge in the amount of $65,040.00 representing $1,200 per acre of
Said Plat multiplied by 54.2 acres contained in Said Plat. Developer agrees to pay
said amounts prior to the City's release of Said Plat.
21. Professional Fees. The Developer will pay all reasonable professional fees incurred
by the City as a result of City efforts to enforce the terms of this Agreement. Said
15