1991-05-08 Draft DA
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WILLIAM S. RADZWILL
Attorney At Law
Edgewood Professional Building
705 Central Ave. East . P.O. Box 369
St. Michael. Minnesota 55376
4-
(612) 497-1930
May 8, 1991
City of Albertville
Albertville City~all
Attn: Linda Houghton
5904 Main Ave., N.E.
Box 131
Albertville, MN 55301
RE: Westwia. Seeolld Addition - Developer'. Agree.ent
Dear Councilmembers:
In order to complete a draft of the Developer's
Agreement for Westwind Second Addition it will be necessary
to clarify the follwing issues:
1. There needs to be an understanding as to whether
or not some or all of the items to be constructed,
specifically roads, curb and gutter etc., will be
constrQcted through the city as 429 assessments. The
nature and extent of the improvements to be assessed
must be spelled out in The Developer's agreement along
with the amounts which will be required for surety
regarding these items.
2. This office should receive proof that the
Restrictive Covenants contained in the first
Developer's Agreement have been recorded in the form
approved by Bob Miller, the former City Attorney.
- 3;"'f'"'rheDeveloper.s must-l!tt111d-e~'~- tl1ecltythat
land to be dedicated as park land per agreement. A
legal description of that portion needs too be drafted
as well as deed which needs to be recorded, all at the
Developer's expense.
4. There needs to be an understanding regarding the
amount of discharge from the retention pond into Coun.ty
Ditch No.. 9, the design of the pond, and the design of
the outlet. The agreement should indicate that the
Developer's will provide fencing around the pond, will
provide periodic cleanout of the pond, and will, at
their own expense, insure compliance with all
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Letter to City of :Albertville
May 8, 1991
Page 2
applicable or-agreed upon regulations or criteria
regarding discharge into County Ditch No.9. This
tncluCles_ reimbut-sement for any expenses- incurred by
the ci ty I' ela tiv-e~t()-proCeecUn9s .0{'- hear inCjl!-~_;:egai:din9
theoutlet-Qr any other ma'Eters --L.el.ating County--Diwl1 ~
5. The temporary easement to-begrantedtotheeity
and public foracc~.ss to the dedicated park land prior
to comp1eti-on of -access roads must be loeat~_<i and
described by -a surveyor and a signed ~aseinent must be
presel'lted-to_the city in recordable-form. 'rhisshou1d
-.beanexh~bi.t: to ..thj!~Dev:.el.~!'Jt" A9re~ment::.~-;;::~:;:,.:;;;-;:-~-- -
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I have draftedtl're--O-eve1oper' s Agreement a-sfar as--
possible at thi..s.-point. Please. get back to me witn_any
colfimel'ltsyou might have regarding the proposed a'1.reement.
Very truly yours,
~/~-
Andrew f:-:"acAtthur.
RAB.flLL .LMr OPPiCE
AJM. djm-
cc Thore Meyer
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DEVELOPERS AGREEMENT
I "WESTWIND SECOND ADDITION
THIS AGREEMENT, entered into this d..3r~ day of
.,,4UfJUst: ,1991 by and between John F.- Darkenwald,
indiv ually and as President of John George, Inc., and
George W. Yankoupe, individually and as Secretary/Treasurer
of John George, Inc., collectively referred to herein as
"Developer"~ and the CITY OF ALBERTVILLE, County of Wright,
State of Minnesota, hereinafter referred to as "City"~
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WITNESSETH:
WHEREAS, Developer is the fee owner and developer of a
parcel or parcels of land described in Exhibit "A", attached
hereto and incorporated herein by reference, which parcels
of land are either already developed as a subdivision in the
City or are proposed for further subdivision and
development, and which subdivision, which is the subject of
this agreement, is intended to bear the name "Westwind
Second Addition" and may sometimes herein~fter be referred
to as the "Subject Property" or "Said Plat"~ and
WHEREAS, the City has given preliminary approval of
Developer's plat of "Westwind Second Addition" contingent
upon compliance with certain City requirements including,
but not limited to, matters set forth herein~ and
WHEREAS, the City requires that certain public
improvements including, but not limited to, sanitary sewer,
water, storm sewer and streets be installed to serve the
Subject Property and other properties affected by the
development of Developer's land, to be financed through
assessments levied upon the subject property under Chapter
429 of Minnesota Statutes~ and
WHEREAS, the City further requires that certain on- and
off-site improvements be installed by the Developer within
the Subject Property, which improvements typically consist
of boulevards, boulevard top soil and sod, trees planted in
the front yards of those lot& abutting the boulevards,
grading control per lot, bitum.inous or concrete driveway
approaches, drainage swales, berming, street signs, front
yard trees, sod and like items, street cleanup during
project development, erosion control and siltation and
retention ponds, and which improvements to the Subject
Property shall be referred to herein as "Escrow Itemsn~ and
WHEREAS, this Agreement is entered into for the purpose
of setting forth and memorializing for the parties and
subsequent owners, the understandings and agreements of the
parties concerning the development of the Subject Property;
NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY
AGREED, in consideration of each party's promises and
considerations herein set forth, as follows:
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1. Petition for Improvements. Developer herein
petitions the City to construct those improvements
(hereinafter referred to as "Petition Items") set forth in
the Feasibility Study for the Westwind Second Addition, as
prepared by Meyer-Rohlin, Inc., and dated June 3, 1991,
attached hereto and marked Exhibit "B".
2. Waiver. Developer waives all right to a public
hearing and other statutory rights granted to a property
owner under Chapter 429 of Minnesota Statutes as the said
rights therein granted relate to Petition Items as described
in Exhibit "B".
3. Petition Items. The City shall construct, at its
discretion, all or a portion of the Petition Items as shown
on Exhibit "B" pursuant to its regular methods of making
public improvements. The Developer agrees that special
assessments for said improvements may be ievied by the City,
without Developer's objection, after construction is
commenced. Thereafter, the expense incurred or to be
incurred in making the improvement shall be calculated under
the direction of the Council. The Developer further agrees
that the City may recover its costs and expenses related to
the construction including legal, fiscal, bonding,
administrative and engineering, by levy of said special
assessments to be payable in equal principal installments
together with interest thereon from the date of the
resolution levying the assessment as determined by the City
over a period of not more than twelve (12) years.
4. Petition Items - Surety. The Developer agrees to
pay sufficient amounts of special assessments each year, if
not already paid in prior years, for properties lying within
said plat to enable the City to pay any debt service
payments incurred as a result of the construction of the
Petition Items, including principal and interest, as such
payments corne due. Any deficiencies in the amount paid by
the Developer for special assessments causing a shortage of
funds with which the City may timely pay the required debt
service payment(s) shall be supplemented with funds
withdrawn by the City from the Developer's approved letter
of credit or other surety furnished to the City. Any of
said surety or guaranty of funds referred to herein that are
withdrawn will be used by the City for payment of its herein
referred debt service payment when due. Upon the Developer
paying the delinquent special assessments, the City will
repay to the surety, to the extent that the delinquent
special assessments have been paid, the surety monies
withdrawn, less any costs incurred by the City in
conjunction with the said delinquent special assessments.
The Developer shall provide the City with cash,
approved irrevocable letter of credit or other satisfactory
surety in the amount of twenty-five percent (25%) of the
estimated total assessment resulting from the Petition Item
improvements.
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The said twenty-five percent (25%) surety is the
guarantee referred to earlier in this section that
sufficient revenue is annually produced by the payment of
special assessments to enable the City to pay the required
debt service payment. The City may draw on said surety for
cash flow purposes to supplement the Developer's payments
when Developer is delinquent in the payment of said special
assessments.
5.
Surety.
A. Developer shall perform all on- and off-site
improvements including boulevards, boulevard top soil and
sod, trees planted in the front yards of those lots abutting
the boulevards, grading control per lot, bituminous or
concrete driveway approaches, drainage swales, berming,
street signs, front yard trees, sod and like items, street
cleanup during project development, erosion control and a
retention pond, and which improvements to the Subject
Property shall be referred to herein as "Escrow Items".
Developer will provide the City with cash, irrevocable
letter of credit or other satisfactory surety in the sum of
$i5,000 which figure represents 50% of the estimated cost of
the Escrow Items. As an alternative, Developer may extend
its current letter of credit required by paragraph 5 (a) of
the Developer's Agreement between the City of Albertville
and John F. Darkenwald and George W. Yankoupe (dated April
27, 1988) and applicable to on- and off-site improvements
within the Plat of Westwind subdivision. Such extension
shall be in an amount not less than $20,000, the full amount
of which can be drawn upon by the City as specified under
this agreement or under the April 27, 1988 Developer's
Agreement referred to above. Said extended letter of credit
shall be reduced to $15,000 upon completion of all on- and
off-site items required by and as specified in paragraph 5
(a) of the April 27, 1988 Developer's Agreement. If so
reduced, the remaining $15,000 surety shall apply to those
on- and off-site improvement items described in this
paragraph, and the further reduction of the $15,000 surety
shall be governed by paragraph 5 (B) below.
On and Off-Site Improvements/Escrow Items:
The said surety shall be a guaranty to the City that
with the exception of boulevard improvements (sod, trees,
driveway approaches), the construction and completion of the
Escrow Items by the Developer, to the City's satisfaction,
will be completed on or before October 1, 1994. The
boulevard improvements for each lot or parcel shall be
completed to the City's satisfaction within sixty (60) days
of the date that a certificate of occupancy (temporary or
permanent) is issued by the City for a building located on
the lot; unless the certificate of occupancy is issued after
October 1st and before March 30th in any given year, in
which case the boulevard improvements shall be so completed
by the following June 15th. At the City's option, it may
install street sign(s) and bill the direct cost of materials
and installation to the Developer who will pay the bill
within ten (10) days of the billing.
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B. That portion of said cash, irrevocable letter of
credit, or other surety which is required with respect to
the performance of on and off-site improvements shall be
released upon certification of the City Engineer and
approval of the City Council that such items are
satisfactorily completed pursuant to this Agreement.
Periodically, as payments are made by the Developer for the
completion of portions of the items described under "Escrow
Items," and when it is reasonably prudent, the Developer may
request of the City that the surety be reduced for that
portion of the project which has been fully completed and
payment made therefor. 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 the billing.
6. Surety Release. The developer may request of the
City a reduction or release of any surety provided for in
conjunction with the Petition Items (described in Exhibit B)
and on- and off-site improvements (listed in section five
above) as follows:
A. When another acceptable surety is furnished
to the City to replace a prior surety.
B. When the final cost amount minus previous payments
becomes less than the surety provided, thus
allowing the surety to be reduced to a sum
commensurate with the remaining amount of the
project.
C. No reduction shall be made which would result
in the surety held being less than thirty-five
percent (35%) of the original surety until the
final costs are known.
D. The Developer may petition the City Council for a
reduction or release of that portion of the surety
attributable to the Petition Items at such time as
seventy-five percent (75%) of the properties to be
assessed as a result of the construction of the
Petition Items either: (1) are clear of all past,
present, and future assessments due, or (2) are
no longer owned by John George, Inc., and the
current owner has been issued a certificate of
occupancy by the City for the residence built upon
the property. The City Council may consider such a
request, but the Council shall have the right to
deny such request in the exercise of its
discretion.
The City's costs for processing any reduction request
shall be billed at $30 per hour with a minimum of one (1)
hour per reduction, and shall be billed to the Developer and
paid to the City within thirty (30) days thereof.
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f 7. Surety Deficiency. 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. All monies deposited with the City shall
be used by the City at the City's discretion to defray the
City's costs and expenses related to the project(s) referred
to herein.
8. Abandonment of Project - 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 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,
or fails to provide sufficient groundcover to prevent
continuing soil erosion from the Plat, Developer agrees to
pay all costs the city may incur in taking whatever action
is reasonably necessary to provide groundcover 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 the
Platted properties. In the event that said costs are not
paid, the City may withdraw funds from any of the
above-mentioned escrow funds for the purpose of paying the
costs referred to in this paragraph.
9. Developer To Pay City's Costs and Expenses. It is
understood and agreed that the Developer will reimburse the
City for all administrative, legal, and professional costs
incurred in the creation, administration, enforcement or
execution of this Agreement.
10. Erosion and Siltation Control.
A. Financial Guarantee. Before any grading is
started on any site, all erosion control measures as shown
on the approved erosion control plan shall be installed. In
addition, a financial guarantee shall be provided to the
City to insure compliance during construction. The
financial guarantee for this purpose shall be the same
surety as described in paragraph five above. No portion of
this surety shall be returned until all disturbed areas have
permanent vegetation re-established.
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B. All erosion control measures recommended by the
City Engineer shall be strictly complied with as set forth
in Exhibit "C", which is hereto attached and herein
incorporated by reference.
C. Developer shall cause to be constructed upon the
Westerly portion of Said Plat retention and siltation ponds
for run off from the developed plat. Said ponds shall
conform with all requirements set forth by the City as shown
in Exhibit "0" attached hereto and herein incorporated by
reference. Developer shall comply with all requirements
concerning length of retention, design of the ponds and
location and size of outlets. Developer shall construct a
siltation pond adjacent to said retention pond, and shall so
contour the land such that water drainage from Said Plat
first flows into said siltation pond, allqwing waterborne
soil and silt to deposit in such siltation pond before said
water drains into the retention pond, all according to
specifications as approved by the United States Army Corps
of Engineers. Developer shall clean the retention and
siltation pond of excess particles, including soil, silt and
phosphates during and/or upon ~ompletion of the construction
phase.
11. Maintain Public Property Damaged or Cluttered
During Construction. 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 Said
Plat. The Developer further agrees to pay all costs
required to repair the streets and/or utility systems
damaged or cluttered with debris when occurring as a direct
or indirect result of the construction that takes place in
Said Plat. In the event the Developer fails to clean up,
maintain or repair the damaged public property mentioned
above, the City shall provide the Developer with a notice of
its intent to clean up, repair, or maintain such public
property. Developer shall have thirty (30) days from the
date of mailing of such notice to effect such clean up,
repair or maintenance of said public property to the
satisfaction of the City Council. In the event that
Developer fails to so clean up, repair or maintain said
public property, the City may undertake making or causing it
to be cleaned up, repaired or maintained. When the City
undertakes such repair, 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, either surety described
above shall be responsible for reimbursing the City
therefor.
12. Street Section Grading. While the development
site is being graded by Developer, an independent testing
firm approved by the City shall test the street section of
those parts of streets platted in Said Plat designated by
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;. the City Engineer, so as to certify to the City that the
contractor is achieving 95% of the standard-moisture density
relationship of soils with exception of the top three (3)
feet of the street section which shall be compacted to 100%
density. Fees paid to the independent testing firm shall be
paid by the Developer. The City's Engineer shall be
furnished a copy of the test results either directly by the
testing firm or by the Developer.
13. Temporary Easement Rights. Developer shall provide
access to the property at all reasonable times to the City
or its representatives for purpos~s of inspection or to
accomplish any necessary work pursuant to this agreement.
Developer further agrees to provide a temporary easement for
public use across portions of Said Plat described on Exhibit
"E" hereto attached and herein incorporated by reference.
Said temporary easement is for purposes of city work on that
land pr~viously dedicated as park land and for public access
to the same. This temporary easement shall remain in force
and effect until such time as the roadways as described in
Said Plat are developed so as to provide general access to
the park land.
14. Miscellaneous. Deveioper agrees that all items
listed in this section are items for which it is responsible
for completing and all work shall be done at Developer's
expense:
A. The Developer will construct a berm, including trees
thereon according to the specifications of exhibit F,
attached hereto and incorporated herein by reference. The
Developer will execute and cause to be recorded with the
wright County Recorder a Declaration of Covenant (attached
as Exhibit G) as approved by the City Attorney, which
declaration shall establish, among other items, the berm and
provide that it shall be maintained at all times by the
affected property owners in the plat in a condition at all
times satisfactory to the City. The said declaration shall
further provide that, upon failure of the said affected lot
owners to maintain the said berm and trees, the City may,
after first giving thirty (30) days mailed notice to the
affected lot owners, go upon the said affected lots over and
across the utility and drainage easement area dedicated in
the plat of Westwind Second Addition, and maintain or
replace the said berms and trees. If the City does so
perform said maintenance or replacement, the City shall be
entitled to replace or maintain them to the City's
satisfaction and to then assess the cost thereof to all the
affected lots in said plat. Said assessment shall be
payable in one (1) year.
B. Developer shall comply with all requirements set
forth for drainage into the county ditch 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 Developers expense.
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f 15. Draw on Expiring Letter ofCredit~ In the event a
surety or other form of guarantee referred to herein is in
the form of an irrevocable letter of credit, which by its
terms will become null and void prior to the time at which
all monetary or other obligations of the Developer are paid
or completed, 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 expiring letter of credit. If a
new letter of credit is not received as required above, the
City may 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.
16. Violation of Agreement. 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, and
if such default is not cured within said thirty (30) day
period, the City is hereby granted the right and 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. The City may thence immediately and
without notice or consent of the Developer use all of the
deposited escrow funds, irrevocable letter of credit or
other surety funds to complete the Developer's obligations
as set forth herein, whether related to Petition Items or
on- or off-site improvements, and to 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.
Paragraph 16 shall not apply to failure by subsequent
lot owners to maintain the berm as required by Paragraph 14
(A) above and the remedy therein provided shall be the sole
remedy for such default with respect to said Paragraph 14
(A) .
Paragraph 16 shall not apply to any acts or rights of
the City under paragraph 15 above, 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.
17. Attorney's Fees. The Developer will pay all
reasonable attorney's fees incurred by the City and as fixed
by the Court in the event a suit or action is brought to
enforce the terms of this Agreement or in the event an
action is brought upon a bond or letter of credit furnished
by the Developer as provided herein.
18. Notification Information. Any notices to the
parties herein shall be by registered mail addressed as
follows:
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City of Albertville
c/o City Clerk
P. O. Box 131
Albertville, MN 55301
Telephone: (612) 497-3384
John F. Darkenwald
or
George W. Yankoupe
John George, Inc.
7535 N.E. River Road
Elk River, MN 55330
Telephone: (612) 441-3700
19. Agreement Effect. This Agreement shall be binding
upon and extend to the representatives, heirs, successors
and assigns of the parties hereto.
Subscribed and sworn toAbefore
me this dl.3 ~J day of 914'Ult.lJ -t- ,
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Pub 1 i c t;?"'.'--~"" MEI CHEN J.' EDLUND. 1
~_ NOTARY PUBLIC-MINNESOTA
'WY WRIGHT COUNTY
My Commission Expires June 23. 1993
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DRAFTED BY:
Michael C. Couri
Attorney at Law
Radzwill Law Office
Edgewood Professional Building
705 Central Avenue East
P. O. Box 369
st. Michael, MN
(612) 497-1930
55376
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Exhibit "A" ,
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!That port of Lho SouthoofJL QUilrLcr of Section 35, Township
121, Honge 21., ~lri<J"t County, MinncaoLR, 'descr! bec!" ilU [ollo...,s:
Beginning at the southwest corner of Lot 2, Block 1, Woat...linc1,
Dccording to pI ut theroof on fi lu and flf record in the offi ce
of the County neconlerj lhen'cc S GOo I,IJ' 15" E, plot bearing,
Dlong tho uouLher1y line of Lot Z onp Lot 3, 0 dlutnnco of
365.00 feeti Lhenc(,:) 5 6511 50' 15" E olong the uouth Ijne of
sa tel l,ot 3, 1I disLc\ncc of 270.00 feel 1.0 the norlhwoaL corner
of Lot ~, Dlock Ii thence 5 350 l~' 00" \01, 11 cJjfjt.on'cc of
1.,7.00 fecti thence S 21,037' 00" \0/, LJ diul~oncc oC 01,.00 fcct;
thence S 200 20' 00" \'1, l1 distonc(1 of 323.00 (eet; thence 5
230 Z9' DO" ~I, 0 distance of 150.00 feeLi.thence 5 37036' 00"
~/, 'a di ALDnCH of 57.00 fceti thence' S 5:P 5!j' DO" W, a
dis\;ilnce of 57.00 fect.j thence S 710 25' 00" 'tl, 0 c1lsl.once of
57 . 00 fee t; l hen c e SOl. 0 0 5' 00 " \'1, D d i 5 tan c l~ 0 f 7 1. 00 fee L
Lo tho norlh...IC~1. corner of Lot "I, nloc:l~ 2 of said plat; then co
continue S 01,0 05' 00" \'/, a disLonce of 75.00 fecti thence on
'a hear.fng of \'/est, D diatonce of 63.00 feet; thence N 0" 31'
l)lI W" a distance of 100.12 feeti thenc:e~ N 120 21,' 00" E, a
distDnce of 160.00 feel; thence tl 000 13' 30" \'/, a dislnrlce of
100.00 fect; Ulence N 7014' 25" I:: , a distance of 113.05 fcet;
the n c e N 20 0 46' 2 5" \'f, a d hj t. D n ceo f U 7 , 54 fee t; tile n c e N 1 0 0
I, 9 j ~:3 " ~ , a d i s L u n ceo f 21 0 . 1 A fee t,; the n c eN" I, 0 03' 1,5" \'1,
, i:I cI i s I. il n ceo f 00. 00 fee t; l hen c e N 77 0 ~ ~' 3 9" \'/, 0 d 1 s tan c e
(If 75.0,0 fecti l.hr:nce N lZo 16' 51," f:, a difiLance oC 110.92
feel; thence northwesterly along fI n(Jn-Lun(/(~nl.ial cur'H',
concave t.o Lhe 5oulh\-/est, hDviny a rnrlius of 19DY.90 feet i.lnd
fI central Dngle of 10 31' 05", D c1isl:"nce of 52.19 feet (the
chOl'd of said cu,'ve bears N 770 52' 500 \'/, disLant 52.19
feeL); thence N 110 211. 37" E, not l.i3ngent Lo Gaid curve, a
distance of 60.00 feeti thence N 120 0/,' 39" E, a dislance of
126.40 fect; thence SOl.O 53' 00" E, 0 distance of 37.00 feet;
t.hence S 71,0 03' 1,5" E, a di sLonce of 221..00 fect to the point
of beginning.
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