2005-06-06 Proposed CUP/PUDProposed final for Council review June 6, 2005
CITY OF ALBERTVILLE
CONDITIONAL USE PERMIT
PLANNED UNIT DEVELOPMENT
AGREEMENT
HUNTERS PASS ESTATES
THIS AGREEMENT, entered into this day of 2005 by and between
company
Hunters Development, LLC, a Minnesota limited liability
collectively
Minnesreferred
athereinafter
herein as
"Developer"; and the CITY OF ALBERTVILLE, y of Wright, State
referred to as "City";
WITNESSETH:
WHEREAS, Developer is the fee owner and developer of the real property described in
Exhibit A, attached hereto and incorporated herein by reference, which real property is proposed to
be subdivided and platted for development and which real property is subject to the provisions of
this Agreement; and
WHEREAS, Developer has received preliminary plat approval for the residential
subdivision shown on Exhibit M (the "Preliminary Plat") and shall hereinafter alternately be
referred to as the "Development" and the Developer will submit final plats for these lands in phases
over the course of several years. Developer has requested approval of the final plat of "Hunter
Pass Estates" as shown on Exhibit
Br lsreferred
foroall of the Plaf' or
and as
as "Said "Subject
e a'This
primary
Agreement shall serve as a masteagreement
Developer's Agreement for Said Plat.
WHEREAS, the City has given final approval of Said Plat 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, sanitary sewer, municipal water,
storm sewer and drainage ponds (hereafter "Municipal Improvements") be installed to serve the
Development and other properties affected by the development of Developer's land, to be installed
and 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 lights, street cleanup during project development, erosion control,
landscaping, and other site -related items; and
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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 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:
Conditional Use/Planned Unit Development. The Development is hereby allowed to be
developed as a Conditional Use/Planned Unit Development with flexibility from the strict
requirements of the City's Shoreline Regulations and Zoning Ordinance in relation to
selected items detailed in this paragraph.
A. It is the Developer's and City's intent that a total of 95 single-family lots be located on
the Development. Developer agrees that it shall not construct any dwelling units other
than one single-family detached dwelling unit per numbered lot on the land in the
Development.
B. Developer shall record the Final Plat and this Developer's Agreement no later than
August 31, 2005.
C. 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.
D. Developer shall construct all lot structures consistent with the directory of setbacks
attached as Exhibit C. Setbacks for each lot shall meet the following minimum
standards:
Front yard setback
See Exhibit C
Side yard setback
5 feet (garage side)
Side yard setback
10 feet (living space)
Side yard setback
See Exhibit C
Rear yard setback
See Exhibit C
All homes constructed on the lots shall be located within the building pad area shown on
Exhibit H on file with the City Clerk.
E. No rear yard or side yard variances shall occur.
F. All single-family units shall be designed and constructed consistent with architectural
standards attached hereto as Exhibit D.
G. Developer shall install permanent markers identifying the buffer edge along the entire
shoreland and wetland boundaries. The number, placement location and the nature of
the markers are subject to City review and approval.
H. Placement of a Monument Sign.
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Subject to City Council approval of the height, sign face size and design,
Developer shall be permitted to install a permanent monument sign
identifying the subdivision on Outlot A in the location shown on the attached
Exhibit K.
ii. Developer shall maintain said Sign in good repair at all times until
ownership of such sign is transferred to the Homeowners' Association.
Such transfer shall occur when maintenance of other common areas is
transferred from Developer to the Homeowners' Association. Upon
transfer to the Homeowners' Association, the Homeowners' Association
shall maintain the area upon which the Sign is located in a manner free of
weeds and shall keep said area mowed in accordance with City ordinances
at all times during which the Sign remains in place.
iii. In the event Homeowners' Association fails to maintain the Sign or the
area around the Sign within 7 days of mailing of written notice by the City
requesting the Homeowners' Association to perform such maintenance,
the City shall have the right, but not the obligation, to: 1) maintain the
Sign and the easement area; or 2) remove the Sign and restore the turf
where the Sign was installed. In such event, the City may bill the
Homeowners' Association for the City's cost of maintenance and removal,
and the Homeowners' Association shall reimburse the City for all such
costs within 30 days of billing by the City. In the event the City removes
the Sign, the Sign shall become the property of the City and the City shall
have the right to dispose of the Sign in any manner it sees fit without
paying any compensation to Homeowners' Association for the loss of such
Sign.
I. Developer shall establish a Homeowners' Association, which shall be responsible for
maintaining all common elements including but not limited to sidewalks, monument
sign, shoreland and wetland markers, perimeter berming, trails, sidewalks (including
snow plowing), the park located in the Development, and cul-de-sac islands. The
Association documents shall prohibit the use of fertilizers containing phosphorous and
provide for mandatory penalties for violation of the CUP/PUD requirements related to
shoreland and wetlands. The Association documents shall also contain the City
approved architectural standards. The documents establishing said Homeowners'
Association shall meet the approval of the City Attorney and shall be recorded on the
property records of the affected lots. In the event the Developer chooses to include the
lots in the Homeowners' Association in phases, no building permit shall be issued for
any lot, which is not first governed by such Homeowners' Association.
J. Trees, shrubs, berms and screening are to be planted and installed as shown on the
landscape plan attached as Exhibit E. Said plan shall include the planting of two trees
(2" minimum caliper) per lot. The Developer shall guarantee that all new trees shall
survive for two full years from the time planting has been completed or will be replaced
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at the expense of the Developer. The landscaping corresponding to each building shall
be installed within 30 days after the issuance of a certificate of occupancy.
K. Developer shall replace, at its own expense, any plantings as shown on attached Exhibit
E that might be damaged during the construction of any future phases of the
development. Developer shall guarantee that all plantings replaced pursuant to this
paragraph shall survive for two full years from the date of planting.
L. Developer shall design and implement a wetland buffer area planting plan, subject to
City review and approval, which enhances or restores said area with a combination of
grasses, shrubs and trees appropriate to compliment the natural habitat.
M. The Developer shall file deed restrictions with the Wright County Recorder of Deeds
for all lots adjacent to or containing wetlands or storm water ponds indicating that no
structures can be built within 30 feet of wetlands. All such deed restrictions shall be
subject to the approval of the City Attorney.
N. Other Use Restrictions. On all lots within 30 feet of any wetland, the native
vegetation within said 30 feet of the wetland shall not be fertilized or mowed or
otherwise disturbed. On all lots within 30 feet of any wetland, no structure,
including, but not limited to, outbuildings or accessory buildings, fence, planting, fill
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
phosphorus -based fertilizers or herbicides on any lot containing wetlands or
shorelands.
O. Prior to the sale of any lot(s) within the Development, 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 the Development,
and the location of all present and future sidewalks, trails and easements. Developer
agrees that the aforementioned sales literature will be distributed to all potential lot
buyers within the Development prior to the sale of any of said lots by Developer.
P. The Developer shall pay the City $283,674.00 for road improvements necessitated by
the Development, including the improvement of 70t1i Street which the City intends to
improve pursuant to an anticipated future agreement between the City and the City of
Otsego. Developer agrees that its properties in the Development may be specially
assessed in the amount of said $283,674.00, with said special assessment payable over a
three year period, provided however, that if the City enters into a contract for the
construction of 70th Street, the Developer will pay $141,837.00 within 30 days of the
City's request for payment and upon such payment, the City shall reduce the initial
$283,674.00 special assessment by $141,837.00. Developer agrees to waive its right to
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appeal the special assessments authorized in this paragraph to the Wright County
District Court pursuant to Minn. Stat. 429.081 on any grounds, including any statutory
or constitutional grounds that otherwise may have been available to Developer.
Developer agrees to waive any procedural irregularities in the special assessment
proceedings.
Q. Construction of Large Avenue.
i. Developer understands and agrees that the construction of Large Avenue
according to the plans attached as Exhibit F is necessary to serve as an
access point to the Development as well as to the property adjoining the
Development on the west property line of the Development ("Adjoining
Property"). At the time of the signing of this document, it is not known
whether the Development or the Adjoining Property will first plat property
abutting Large Avenue. Developer agrees that if it plats property abutting
large Avenue prior to the Adjoining Property, Developer shall construct the
entire width of Large Avenue consistent with plans and specifications as
required by the City Engineer. In such event, Developer shall pay one-half
of the cost of the construction of Large Avenue and the owner of the
Adjoining Property shall pay the other half pursuant to a separate agreement
with the City.
ii. In the event the Adjoining Property is the first to plat property abutting Large
Avenue, the owner of the Adjoining Property shall construct Large Avenue
and Developer shall pay the owner of the Adjoining Property one-half of the
cost of constructing Large Avenue.
iii. All such payments made pursuant to paragraphs 2.Q.i. or 2.Q.ii. shall be
made within 30 days of billing by either party, provided the City Engineer
has first confirmed that the costs billed for approximately correspond to
quantities installed. Engineering costs incurred by the City in the design and
inspection of Large Avenue as well as any other costs incurred by the City
related to the construction of Large Avenue shall be included in the costs of
construction of Large Avenue, and Developer agrees to pay one-half of such
costs incurred by the City within 30 days of billing by the City. Any billing
dispute which may arise between the Developer and the owner of the
Adjoining Property shall not be a basis for delay in the completion of Large
Avenue.
iv. Prior to the release of Said Plat, Developer shall provide the City free of
charge with permanent street easement over that portion of Large Avenue
which is located on the Development and shall also provide the City with
temporary construction easements over the Development necessary for the
City to cause Large Avenue to be constructed in the event the Adjacent
Property owner constructs Large Avenue. Said easements are shown on the
attached Exhibit I.
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R. There shall be no parking on one side of all designated local streets on said plat that are
28 feet in width and Developer shall install appropriate permanent no parking signage.
The City Council may, in its discretion, allow parking on said streets at any time in the
future.
S. Developer shall install all sidewalks and trails pursuant to the sidewalk and trail plan
attached as Exhibit G.
T. Prior to the release of Said Plat, Developer shall provide the City with permanent utility
easements as shown on the attached Exhibit L. Such easements shall be provided at no
expense to the City.
U. Developer may construct model homes on Lots , Block prior to
the installation of the first lift of bituminous surface being placed on the road abutting
said lots, provided that Developer first provides a separate access to the model home
lots, that the access is a minimum of 20 feet in width, that the access is not located in
the road right of way, and that the access is passable and capable of supporting a fully -
loaded fire truck at all times. No occupancy permits shall be issued for such model
homes until the first lift of bituminous pavement is installed on the road abutting the
model homes.
3. Construction of Municipal Improvements.
A. The Developer shall construct those Municipal Improvements located on and off
Said Plat as detailed in the Plans and Specifications for Hunters Pass Estates, as
prepared by Meyer-Rohlin, Inc. dated May 18, 2005 and on file with the City Clerk,
said improvements to include installation of bituminous street, curb and gutter,
sidewalks, water mains, sanitary and storm sewers, storm water ponding and site
grading, and trails. 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, 2005 with the wear course of bituminous pavement to be installed
after June 30, 2006, but before September 15, 2006.
B. 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.
C. 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.
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D. 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 Improvements.
Developer agrees to pay for all costs incurred by the City during said
inspections.
4. Construction of 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, landscaping, 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, 2006, with the exception of erosion
control, drainage swales and berming, which shall be installed upon initial grading
of Said Plat, and except that the driveways and sod need not be installed in a lot until
that lot is developed (provided adequate ground cover has been established prior to
the development of such lot).
B. Developer shall, at its own expense, cause the following items to be installed within
the development, all such items to be installed in a common trench 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, until such time as the City accepts the street portion of the Municipal
Improvements, 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.
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The Developer shall be responsible for streetlight operational expense until such
time as the City accepts the Municipal Improvements.
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. As an alternative to
installing silt fencing in back of all curbing as required by this subparagraph,
Developer may, at its expense, install sod no less than three feet in width in back of
all curbing, provided that if, in the judgment of the City Engineer, the installation of
silt fencing in one or more places is needed, the Developer shall install such silt
fencing at its expense upon request by the City Engineer.
D. Notwithstanding the requirements of subparagraphs I.J. and 4.A. above and except
as otherwise provided in this Agreement, 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 with the requirement that the Developer be required to install said on -and off -
site items for such lot by the following June 30t'.
E. Developer shall install storm water retention/water quality ponds and basins upon
the Development as shown on the Grading, Drainage and Erosion Control Plan
attached as Exhibit H. 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.
5. Surety Requirements.
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
$2,230,380.00 representing the sum of 100% of the estimated cost of the Municipal
Improvements ($2,041,200.00), 50% of the on and off -site improvements
($39,000.00),150% of the estimated cost for landscaping/screening materials
($94,500.00), and 100% of the cost of mitigating and monitoring wetlands according to
the approved wetland mitigation plan ($55,680.00). 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
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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 pay or 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 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.
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.
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6. Surety Release.
A. Periodically, as payments are made by the Developer for the completion of portions
of the Municipal Improvements and/or on- and off -site Improvements, 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 on- and
off -site 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:
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 the on- and off -site
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. Developer may substitute a warranty
bond acceptable to the City Attorney for the warranty letter of credit in the
same amounts and duration as required for the warranty letter of credit.
iii. When all or a portion of the wetland work required by the approved wetland
mitigation plan has been completed.
iv. 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.
C. The costs incurred by the City in processing any reduction request shall be billed to the
Developer and paid to the City within thirty (30) days of billing.
7. Abandonment of Project - Costs and Expenses.
In the event Developer should abandon the proposed development of the said Plat, 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 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, ceases substantial field work for more than
nine (9) months, fails to provide sufficient ground -cover to prevent continuing soil erosion from
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the Development, 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 the Development to the point where undeveloped grounds are level and covered with
permanent vegetation sufficient to prevent continuing soil erosion from the Development and to
facilitate mowing of the Development. In the event that said costs are not paid, the City may
withdraw funds from the above -mentioned surety for the purpose of paying the costs referred to
in this paragraph.
Developer to Pay City's Costs and Expenses.
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 the
Development, 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,
Developer agrees to allow the City to reimburse itself from said surety and/or assess the amount
owed against any or all of the Development without objection.
9. Sanitary Sewer and Water Trunk Line Fees.
Developer agrees that the City's Sanitary Sewer Trunk Line Fee Ordinance and Water Trunk
Line Fee Ordinance currently requires the Developer to pay $1,400.00 per acre and $1,200.00
per acre respectively, upon development of said Plat. There are 48.75 acres (which excludes
Outlot C which shall be replatted at a later date) in said Plat, which received final plat approval.
Therefore, the Sanitary Sewer and Water Trunk Line Fees for all property receiving final plat
approval are $126,750.00 ($68,250.00 in sewer fees calculated as $1,400.00 x 48.75 acres and
$58,500.00 in water fees calculated as $1,200.00 x 48.75 acres). Developer shall pay sanitary
sewer and water trunk line fees on Outlot C at such time as these outlots are platted into
numbered lots and blocks.
10. Erosion and Siltation Control.
Before any grading is started on any site, all erosion control measures as shown on the approved
Grading, Drainage and Erosion Control Plan attached as Exhibit H shall be strictly complied
with. Developer shall also install all erosion control measures deemed necessary by the City
Engineer should the erosion control plan prove inadequate in any respect.
11. Ditch Cleaning.
Developer shall comply with all requirements set forth for drainage into any county ditch or
other ditch through which water from the Development 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.
12. Maintain Public Properly Damaged or Cluttered During Construction.
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Developer agrees to assume full financial responsibility for any damage which may occur to
public property including but not limited to streets, street sub- base, base, bituminous surface,
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 the
Development. The Developer further agrees to pay all costs required to repair the streets, utility
systems and other public property damaged or cluttered with debris when occurring as a direct
or indirect result of the construction that takes place in the Development.
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 the Development 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 the Development 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
immediately 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 the
Development and/or take necessary legal action to recover such costs and the Developer agrees
that the City shall be entitled to attorney's fees incurred by the City as a result of such legal
action.
13. Temporary Easement Rights.
Developer shall provide access to the Development at all reasonable times to the City or its
representatives for purposes of inspection or to accomplish any necessary work pursuant to this
Agreement.
14. 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, except that the sanitary sewer lift station on Said Plat and the
water line under Mud Lake shall be constructed and funded by the City as trunk
improvements.
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 improvements caused
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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.
F. The Developer represents to the City that the Development 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 the Development 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 Development, Developer shall provide the City with evidence of good and
marketable title to all of the Development. 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 Wright County Soil and Water Conservation District and/or the
City and any applicable provisions of State or Federal law or regulations. The City
may refrain from issuing building permits until all work necessary to establish the
wetlands required under the wetland mitigation plan has been completed.
I. 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 acknowledges and agrees that the City is currently in the process
of expanding its wastewater treatment plant capacity. Developer further
acknowledges and agrees that delay in the availability of wastewater treatment plant
capacity may occur for some lots located within the Development and that such
delay in capacity availability may also delay the issuance of building permits for
some lots within the Development.
J. 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
MARublic Data\City Council\Council Agendas\2005 Agendas\A 06-06-05 packet draft.doc 91
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 Building
Inspector or a professional soils engineer has approved the property.
K. Developer shall obtain all required driveway, utility and other permits as required by
either the City Engineer, Wright County and/or the State of Minnesota.
15. 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 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 complete some or all of the
Developer's obligations under this Agreement, and 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. The City may also
specially assess all said costs incurred upon default against the properties in the
Development pursuant to the terms of this agreement.
B. Notwithstanding the 30-day notice period provided for in paragraph 15(A) above, in
the event that a default by Developer will reasonably result in irreparable harm to the
environment or to public property, 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 irreparable 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.
C. Paragraph 15A of this section shall not apply to any acts or rights of the City under
the preceding paragraph 5.F., 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 grounds for
denial of building permits.
16. Dedications to the Citv.
A. Municipal Improvement Dedications.
The Developer, upon presentation to the City of evidence of good and marketable
title to the Development, and upon completion of all construction work and
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certification of completion by the City Engineer, shall dedicate all roads, road and
trail right-of-ways, sidewalks, curbs, drainage and utility easements, gutters,
ponds, parks, sewers and water mains to the City. Upon acceptance of dedication,
Developer shall provide to the City with paper and electronic "As-Builts" of all
sewers, water mains acceptable to the City Engineer. Acceptance by City of any
dedication shall occur upon passage of a resolution to such effect by the City
Council.
B. Park, Trail and Outlot Dedications.
i. Park Dedication. The Developer hereby dedicates the park shown
on Said Plat to the City and the Developer. agrees that it shall
construct, at its expense, park improvements consistent with the
plans and specifications attached as Exhibit J. Said park
improvement shall be constructed by October 31, 2005. The
Homeowners' Association shall be responsible for maintaining this
park in perpetuity in a manner and frequency similar to the
maintenance performed on other public parks maintained by the
City. In the event the Homeowners' Association fails to so maintain
the park, the City may, but shall not be obligated to maintain said
park. In such event, the Homeowners' Association shall reimburse
the City for all costs incurred in maintaining said park.
ii. Trail Dedication. The Developer shall, at its expense, construct the
trails shown on the attached Exhibit G. Once constructed, the
Homeowners' Association shall maintain the trails in perpetuity in a
manner and frequency similar to the maintenance performed on other
public trails maintained by the City. In the event the Homeowners'
Association fails to so maintain the trails, the City may, but shall not
be obligated to maintain said trails. In such event, the Homeowners'
Association shall reimburse the City for all costs incurred in
maintaining said trails.
iii. Outlot Dedication. The Developer shall deed Outlots A and B to
the City.
17. Administrative Fee. A fee for City administration of this project shall be paid prior to
the City executing the Plat and this Agreement. Said fee shall be three percent of the
estimated construction costs of the Municipal Improvements within the Plat. The
administrative fee for this Plat is $61,236.00. Seventy-five percent of this fee shall be
paid upon issuance of the final Plat with the remaining twenty-five percent of the fee to
be paid upon substantial completion of the Municipal Improvements.
18. Phased Development. If said Plat is a phase of a multi -phased preliminary plat, Developer
agrees that 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 the City approves Development Contracts for such
phases. Approval of this phase of the Development shall not be construed as approval of
MAPublic Data\City Council\Council Agendas\2005 Agendas\A 06-06-05 packet draR.doc 93
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 Master Agreement, 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.
19. 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 the Development approval and development. The Developer shall indemnify
the City and its officers and employees for all costs, damages or expenses that the City may
pay or incur in consequence of such claims, including attorney's fees. Third parties shall
have no recourse against the City under this contract.
20. Assignment of Contract. The obligations of the Developer under this Contract can be
assigned by the Developer. However, the Developer shall not be released from its
obligations under this contract without the express written consent of the City Council
through Council resolution.
21. Limited Approval. Approval of this Agreement by the City Council in no way constitutes
approval of anything other than that, which is explicitly specified in this Agreement.
22. 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 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 attorneys 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.
23. 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.
24. Integration Clause, Modification by Written Agreement 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.
25. 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 55301
Telephone: (763) 497-3384
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Hunters Development, LLC
Attn: Matt Froelich
201 S. 7t' Street
P.O. Box 1166
Monticello, MN 55262
Telephone: 763 -295-4146
Fax:763-295-4178
28. Agreement Effect.
This Agreement shall be binding upon and extend to the representatives, heirs, successors
and assigns of the parties hereto.
CITY OF ALBERTVILLE
By
It's Mayor
By
It's Clerk
HUNTERS DEVELOPMENT, LLC
By: Matt Froelich
It's: Chief Manager
By: Joe Huber
It's: Secretary
STATE OF MINNESOTA )
ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this day of
, 2005, by Donald Peterson 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.
MAPublic Data\City Council\Council Agendas\2005 Agendas\+ 06-06-05 packet draft.doc 95
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this day of
, 2005, by Bridget Miller, as Clerk 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
, 2005, by , as of Hunters Development, LLC,
a Minnesota limited liability company.
Notary Public
DRAFTED BY:
Couri, MacArthur & Ruppe P.L.L.P.
P.O. Box 369
705 Central Avenue East
St. Michael, MN 55376
763)497-1930
EXHIBIT A TO DEVELOPER'S AGREEMENT
The legal description of the Plat to which this Developer's Agreement applies is as
follows:
Lots 1-4, Block 1
Lots 1-19, Block 2
Lots 1-9, Block 3
Lots 1-10, Block 4
Lot 1, Block 5
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Lots 1-22, Block 6
Outlot A
Outlot B
Outlot C
All said property is located in Hunters Pass Estates, City of Albertville, County of Wright, State
of Minnesota.
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EXHIBIT B
Final Plat
EXHIBIT C
Directory of Setbacks
EXHIBIT D
Architectural Plans
EXHIBIT E
Landscaping Plan
EXHIBIT F
"Large Avenue" Plans and Specifications
EXHIBIT G
Sidewalk and Trail Plan
EXHIBIT H
Grading, Drainage and Erosion Control Plan
EXHIBIT I
Road Easement
EXHIBIT J
Hunters Pass Estates Park Plans and Specifications
EXHIBIT K
Monument Sign
EXHIBIT L
Utility Easements
EXHIBIT M
Preliminary Plat
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