2006-09-11 Recorded Development AgreementCp
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Doc. No. A 1 X26216
OFFICE OF THE COUNTY RECORdER
WRlGHT COUNTY, MINNESOTA
Certified Filed andlor Recorded an
09-19-2006 at 03:00
Check ~: 64517Q Fees $ 46.OQ
Payment Code 02
Addl. Fee
Larry A. Unger, County Recorder
DEVEI,OPER'SIPLANNED UNIT DEVELOPMENT AGREEMENT
Albertville Plaza 2°d Addition
THIS AGREEMENT, entered into this ~ ~ day of `~.~ ~~ ~~ 2006 by and
between ALBERTVILLE PLAZA, LLC, referred to herein as "Developer"; and the CYTY
OF ALBERTVILLE, County of Wright, State of Minnesota, hereinafter ~ referred to as
"City" all of which are collectively referred to herein as "the Parties";
WITNESSETH:
WHEREAS, Developer is the fee owner and developer of a parcel or pat~els of land
described in Exhibit A, attached hereto and incorporated herein by reference, which
parcel(s) of land are proposed to be subdivided and platted for development, and which
subdivision, which is the subject of this Agreement, is intended to bear the name
"Albertville Plaza 2'~ Addition" and is graphically depicted on Exhibit K. The real property
described in Exhibit A shall hereinafter be referred to as the "Subject Property" or "Said
Plat"; and
WHEREAS, the City has given prelinunary approval of Developer's Development
Stage plan of Albertville Plaza Second Addition contingent upon compliance with certain
City requirements including, but not limited to, matters set forth herein; and
WHEREAS, the City further requires that certain on- and off-site improvements be
instalhed by the Developer within the Subject Property, which improvements consist of
boulevards, top soil and sod, grading control per lot, bituminous or concrete driveways,
storm water ponding, sanitary sewers, storm sewers, drainage swales, street cleanup during
project development, erosion control, and other site-related items; and
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WHEREAS, the City requires that a municipal water main {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, 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:
1. Construction of Municipal Imnrovements.,
A. The Developer shall construct those Municipal Improvements located on and
off Said Plat as detailed in the Plans and Specifications for Albertville Plaza
II, as prepared by Loucks Associates, dated June 13, 2006 and on file with the
City Clerk. All such .Municipal 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 Municipal
Improvements shall be installed by June 30, 2007.
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 bath to poor materials and
faulty workmanship.
C. Developer shall provide the City with lien waivers from all contractors and
subcontractors engaged to construct said Municipal 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.
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.
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2. Construction of On- and Off-Site Y rovements,
A. Developer shall construct all on- and off-site improvements
("Improvements") including installation of boulevards, yard top soil, sod and
seed in all lots, grading control per lot, bituminous or concrete driveways,
storm water ponding, sanitary sewers, storm sewers, drainage swales, private
streets, berming, and like items as necessary, street cleanup during project
development, and erosion control, all as required by City ordinance including
those items shown on the Utility Plan {attached hereto as Exhibit B) and the
Grading Plan {attached hereto as Exhibit C). All such Improvements shall be
constructed according tv the plans and specifications dated June 13, 2006 as
prepared by Loucks Associates, and according to the standards adopted by the
City, along with all items required by the City Engineer and/or City Planner.
Unless the City Engineer specifies a later date, said Improvements shall be
installed no later than December 20, 2006, with the exception of erosion
control, which shall be installed immediately upon initial grading of Said Plat,
and with the exception of the final layer of bituminous pavement on the
parking lot, which may be placed no later than June 30, 2007, and with the
exception of the landscaping which may be placed no later than May 31,
2007.
B. All said Improvements shall be installed at Developer's expense. If the City
determines that it is necessary to have the City Engineer or other inspector on
site for any portion of the installation of said Improvements, Developer shall
reimburse the City for all inspection costs incurred by the City.
C. Notwithstanding the requirements of subparagraph lA above, prior to the
issuance of a certificate of occupancy for a building on any given lot in Said
Plat, Developer shall have installed to the City's satisfaction said on- and off-
site Improvements vn the lot.
3. Use of Property. Developer's use of Said Piat shall be consistent with the following
restrictions, which shall be effective until further modified or amended by rezoning
or other amendment of the planned unit development by the City Council:
A. Said Plat is part of a planned unit development {"PUD"). The provisions of the
City's B-3 zoning district (as amended from time to time) apply to Said Plat,
except as modified by this Agreement and except that the uses in Said Plat have
been limited to the following unless otherwise agreed to by the City Council and
Developer:
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i. Lot 1, Block 1 shall be limited to the following uses: Professional
office, bank, hotelJmotel, daycare, retail sales, restaurant, and auto
service.
ii. Lot 2, Block 1 shall be limited to the following uses: Professional
office, bank, daycare, retail sales.
Ail such uses must receive site plan approval from the City Council prior to the
issuance of building permits.
B: Developer shall pern~it the owner of the property immediately adjacent to and
abutting on the south property line of Said Plat as described on the attached
Exhibit D ("South Property") to use the south access for ingress to the South
Property over the area described on the attached Exhibit E, provided that:
1. The owner of the South Property agrees to construct those portions of
the private driveways located on the South Property to the same weight
and width specif cations as required by this agreement, unless other
specifications are required by the City.
2. The owner of the South Property agrees that except for temporary and
reasonable activities required in connection with construction,
maintenance, repair and replacement, no obstruction which would
prevent, restrict or otherwise inhibit the passage of pedestrians or
vehicles over any portion of the private driveway shall be erected,
condoned or permitted by the owner of any property benefited with the
private driveway, its tenants, invitees or licensees, nor shall any other
conduct, passive or affirmative, including but not limited to the parking
or storage of vehicles, be permitted which would in any manner restrict
the rights of the respective owners of any of the benefited property, their
tenants, invitees and licensees to fully utilize the shared private
driveway for the purposes permitted herein. However, in no event shall
any owner allow any construction-related traffic that will cause damage
to the shared driveway to utilize the shared driveway, nor shall any
owner allow traffic to use said shared driveway which has a weight
rating which exceeds the weight rating for which said shared driveway
was designed and constructed.
3. The owner of the South Property agrees that should it fail to repair or
maintain said shared private driveway, that owners of the lots in Said
Plat may undertake making or causing any defective condition existing
on said private shared drive to be cleaned up, repaired or maintained as
outlined below:
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a. For all conditions not arising from the accumulation or
deposit of snow on the shared drive, the owners of the lots in
Said Plat shall give the defaulting owner of the South Property
fifteen (15) days notice via certified mail and facsimile
transmission thereof, and if the defaulting owner of the South
Property fails to cure within 15 days of the notice (or fails to
prosecute said cure diligently to completion if it cannot
reasonably be finished within said 15 day period), the owners
of the lots in Said Plat will be granted the right and the privilege
to complete the defaulting owner's obligations and to bring
legal action against the defaulting owner of the South Froperty
to collect any sums due for the cost of the work performed, plus
all costs and attorney's fees incurred in enforcing this condition.
b. The fifteen day notice period shall be deemed to run from the
date of deposit in the United States Mail and the transmission
of the facsimile.
c. For all conditions arising from the accumulation or deposit of
snow on the shared drive, the owners of the lots in Said Plat
shall give the defaulting owner of the South Property twenty-
four hours notice via telephone and facsimile transmission
thereof, and if the defaulting owner of the South Property fails
tv cure within said twenty-four hour period, Developer will be
granted the right and the privilege to complete the defaulting
owner's obligations and to bring legal action against the
defaulting owner of the South Property to collect any sums due
for the cost of the work performed, plus all costs and attorneys
fees incurred in enforcing this condition.
4. The owner of the South Property agrees to initially pay the Developer a
reasonable proportion of the cost of the construction of the shared drive
on Said Plat and to thereafter pay the percentage of annual maintenance
of the shared drive on Said Plat, both as determined by the City Council
at such time as the South Property is developed.
5. South Property owner shall enter into an easement agreement with the
owners of the lots in Said Plat containing substantially the same terms
as set out in paragraph 3B of this Agreement and the easement
agreement applicable to Said Plat and approved by the City Attorney.
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C. Developer shall establish an access and utility easement agreement providing for
access to all lots over the private roadways described on Exhibit E and providing
for the maintenance of utilities, including ponding and storm sewers consistent
with the Utility Plan attached as Exhibit B. Said easement shall be approved by
the City Attorney and recorded on the property records at the Wright County
Recorder's Office.
D. Developer shall be permitted to construct a building on Lot 1, Block 1 for
automotive services and retail uses in substantially the same location,
configuration, size and materials as shown on the attached Exhibit F. Developer
shall install landscaping, lighting and signage, respectively, in accordance with
the Landscape Plan attached as Exhibit H, the Lighting Plan attached as Exhibit I,
and the Signage Plan attached as Exhibit J. Ali improvements required to be
installed under this paragraph shall be installed at Developer's expense.
E. No site-specific approvals have been granted for Lot 2, Block 1 of Said Plat.
Developer shall submit alt plans required by ordinance, including site plan, a
landscape plan, lighting plan, and signage plan for City approval prior to the
issuance of a building permit for Lot 2, Block 1 of Said Plat.
F. No person or entity may modify or obstruct the storm sewer improvements
shown on the attached Exhibit B without the express written consent of the City
Council.
G. The municipal water main located on Said Plat shall be maintained by the City.
In the event it becomes necessary to excavate any portion of said water main for
maintenance or replacement, the City shall restore such excavation to grade with
a gravel or turf surface, but the City shall not be responsible for replacement of
pavement or above-ground improvements within the easement area.
H. Developer shall not be permitted to store truck trailers or other type of trailers
overnight on Said Plat except during installation of underground utilities, streets
or construction of buildings. No truck trailers or other type of trailers shall be
stored overnight on any lot after a certificate of occupancy has been issued for
such lot.
I. In the event an automobile maintenance operation is established on any lot in
Said Plat, such operation shall keep its south-facing garage doors closed at alI
times {except for purposes of moving vehicles and supplies into and out of the
building) so long as the property immediately to the south of Said Plat is used for
residential purposes.
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J. In the event an automobile maintenance operation is established on any lot in
Said Plat, such operation shall not permit the storage of damaged or inoperable
vehicles outdoors on such lot.
4. Maintenance of Streets. Utilities and Pondi
A. The streets, curb, gutter, and sanitary sewer in Said Plat shall remain private
and the cost of maintenance of these items must be borne by the owners of the
lots in Said Plat in accordance with the terms of the Maintenance Agreement
attached as Exhibit G to this Agreement. All such maintenance shall be
performed in a commercially reasonable manner.
B. The storm sewers and ponds shall be public, but shall be maintained by the
owners of the lots in Said Plat in accordance with the terms of the Maintenance
Agreement attached as Exhibit G to this Agreement. All such maintenance
shall be performed in a commercially reasonable manner.
C. The City shall have the right to enter upon all easement areas at any time for
inspection and maintenance purposes.
D. In the event the City terminates the Maintenance Agreement any time after
March 1, 2016 and the owners of all of the properties on Said Plat and
Albertville Plaza fail to establish an entity to maintain the streets, curb, gutter,
sanitary sewer, storm sewer, and ponding, the City may avail itself of any of
the remedies set out in said Maintenance Agreement. In the event one or more
owners of the lots in Said Plat do not cause the streets, curb, gutter, storm
sewers or ponds to be maintained as required by this Agreement, the City may,
but shall not be required to, enter upon such property and maintain such
property as required by this Agreement and may special assess the costs of
such maintenance to the property upon which such maintenance was
performed.
S. 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 $189,850.00 representing the sum of 100% of
the estimated cost of the Municipal Improvements, ($69,500.00), 100% of the
estimated cost of the on and off-site Improvements, ($72,350.00), and 150%
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of the estimated cast for landscaping/screening materials ($48,000.00}. 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 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. 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-f ve (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. Developer shall maintain said letter of credit in the amount required
by the City at all times.
6. Sure Release.
A. The Developer may request of the City a reduction or release of any surety as
follows:
1. When another acceptable letter of credit or surety is furnished to the
City to replace a prior letter of credit or surety.
2. When all or a portion of the Municipal Improvements and 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
Municipal Improvements and Improvements so installed except that
the City shall retain the letter of credit or surety in the amount of IO%
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.
3. As to all requests brougk~t under this paragraph, the City Council shall
have complete discretion whether to reduce or not to reduce said letter
of credit or surety.
B. 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 Pro'ect -Costs and Ex enses. 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
Develaper 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 PIat to the paint where undeveloped grounds are level and
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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 withdraw fiends from the above-mentioned surety for the purpose
of paying the costs referred to in this paragraph.
8. Developer to Pav 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 Said Plat, as well as
all reasonable engineering expenses incurred by the City in approving and inspecting
said Improvements and Municipal 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. 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 shall be strictly complied with as set forth in the attached Exhibit C, and as
required by City ordinance. Developer shall also install all erosion control measures
deemed necessary by the City Engineer should the erosion control plan prove
inadequate in any respect.
ley. Maintain Fublic Fro Dama ed or Cluttered During Construction Developer
agrees to assume full financial responsibility for any damage which may occur to public
property including bat 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
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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.
I1. Tem orar Easement Ri hts. Developer shall provide access to the Subject
Property at alI reasonable times to the City or its representatives for purposes of
inspection or to accomplish any necessary work pursuant to this Agreement.
12. 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
improvements caused by the Developer, its contractors, subcontractors,
materialmen, employees, agents, or third parties during construction of
improvements on Said Plat.
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 Said Plat complies with all City,
county, state and federal laws and regulations, including but not limited to:
subdivision ordinances, zoning ordinances, and environmental regulations. If
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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 Wright County Soil and Water
Conservation District and/or the City and any applicable provisions of State
or Federal law or regulations.
I. Developer shall guarantee all new plantings required as part of any landscape
plan shall survive for two full years from the time the planting has been
completed or will be replaced at the expense of the Developer.
3. 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.
K. Developer shall provide to the City "As-Builts" of all sewers, water mains,
and roads.
I3. Dedications to the City.
A. 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 drainage and utility easements to the
City over, under and across all drainage ponds located in Said Plat as
the same are identified on the attached Exhibit C.
2. Developer shall dedicate all utility improvements located
within the utility easements on Said Plat to the City.
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B. Developer acknowledges and agrees that in order to satisfy the City's park
dedication requirements for Said Plat, Developer shall pay $7,500 per acre for
all lots developed as numbered lots. Said Plat consists of 4.04 acres of
numbered lots. Therefore, Developer shall pay the City a cash payment
totaling $30,300.00.
14. 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 3.25% of
the estimated construction costs of the Municipal Improvements within the Plat.
The administrative fee for this Plat is $2,258.75. 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.
15.Indemnity. Developer shall hold the City and its officers, employees and agents
harmless from claims made by Developer and Third Parties far damages sustained or
costs incurred resulting from Said Plat approval and development. The Developer
shall indemnify the City and its officers, employees and agents for all costs, damages
or expenses which 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.
16. 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.
17. Agreement Effect. This agreement shall be binding upon and extend to the
representatives, heirs, successor and assigns of the parties hereto.
18. 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 Ciry 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
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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 Said Plat pursuant
to the terms of this agreement.
B. Notwithstanding the 30-day notice period provided for in paragraph 18(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. This paragraph of this Agreement shall not apply to any acts or rights of the
City under paragraph SE, and no notice need be given to the Developer as a
condition precedent to the City 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 and/or occupancy permits until said breach is
remedied.
19. Phased Develo went. If the plat is a phase of amulti-phased preliminary plat, the
City may refuse to approve final plats of subsequent phases until public
improvements for all prior phases have been satisfactorily completed. Development
of subsequent phases may not proceed until Development Contracts for such phases
are approved by the City. Approval of this phase of the Development shall not be
construed as approval of future phases nor shall approval of this phase bind the City
to approve future Development phases. All future Development phases shall be
governed by the City's Comprehensive Flan, Zoning ordinance, Subdivision
ordinance, and other ordinances in effect at the time such future Development phases
are approved by the City.
24. Limited Approval. Approval of this Agreement by the City Council in no way
constitutes approval of anything other than that which is explicitly specif ed in this
Agreement.
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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
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 fees 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. Allocation of Special Assessments. Special assessments in the amount of $3,OSS.84
are currently levied against Said Plat. Developer agrees that the City may
reapportion said special assessments in the following manner: Lot 1, Block 2, 49.7%
of outstanding special assessments; Lot 2, Block 2, 50.3% of outstanding special
assessments. Developer waives its right to a public hearing under Minn. Stat. §
429.061 and § 429.0'71 regarding the reapportionment of said special assessments.
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. Inte ration Clause Modification b Written A Bement Onl .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.
2S. 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
Albertville Plaza, LLC
Suite 104, 75 Viking Drive
Little Canada, MN 55117
15
CITY~O'~F ALBERTVILLE,
By ~J~.•.,Jtr- tt .
Don Peterson
TOF~I ANN LEONHARQT
~6 N~CTAf•:Y PUBLIC•MlNNESOTA
~~ My Comm. Exp. Jan. 34, 2088
tid°ws;r+
Its Mayor
Bridge filler
Its Clerk
..
,~='`'~' 'OAl ANN LEONHAADT
'~ ~~' RY PUBLIC-AlINNESOTA
~" •,w:% ''~ E-~• Jan. 31, 2008
.. _... asl>..., .. .
STATE OF MINNESOTA )
ss.
COUNTY OF WRIGHT }
ALBERTVILLE PLAZA, LLC
Its: Chief Manager
The foregoing instrument was acknowledged before me this ~ ~ ~ ~ day of
~~.: ? '' 4~~~~~~ 2006, by Don 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. ~ '~
Notary Publi
STATE OF MINNESOTA)
ss.
COUNTY OF WRIGHT )
The faregoing instrument was acknowledged before me this ~ ~ ~ ~ day of
e~J~..~'~f~^t1~,(i ~/" 2006, 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. r ~,
Notary Public r`
STATE OF MINNESOTA } F,
'~ T~JAI ANN LEONHARDT
COUNTY OF WRIGHT ) " NuTARY PUBL4C-AAINNESOTA
~ M?y Camm, Exp. Jar+. " ,~s
16 y~,
3~r~~
. r.~:,
TOFiI ANN LEONHARDT
``~' NoL4gYPUBL,IC.~INNEgd7A
f ~ C
y omm, Exp. Jan. 3f, 2009
~.,~
The foregoing instrument was acknowledged before me this ~ day of
2006, by Re~~ u! ~~~~ , as Chief Manager of Albertville Plaza,
LLC.
- ~..
~ ~ ~-
Notary Publ'
DRAFTED BY:
Couri, MacArthur & Ruppe PLLP
P.O. Box 369
705 Central Avenue East
St. Michael, MN 55376
(763) 497-1930
~ ..
N9TA~Y PU$':;u-MiNNE90TA
i;4y Com!n. Exp. ,!un. 3i, 2009
+:~.a
17
EXHIBIT A
The legal description of the property which is the subject of this Developer's Agreement is
as follows:
Lots 1 and 2, Albertville Plaza Second Addition, according to the plat of record on
file in the Wright County Recorder's Office, Wright County, Minnesota.
18
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EXHIBIT D
That part of the North 35.0 acres of the Northeast Quarter of Section 2, Township
120, Range 24, Wright County, Minnesota described as follows: Commencing at
the northeast corner of said Northeast Quarter of Section 2; thence South 1° 07'
12" West, assumed bearing, along the east line of the said Northeast Quarter, a
distance of 169.00 feet to the actual point of beginning; thence South 89° 42' OS"
West, a distance of 562.92 feet; thence south 0° 54' 26" West, a distance of
394.00 feet to the south Line of the north 35.00 acres of said Northeast quarter;
thence North 87° 41' S6" East along the said south line to the east line of the said
Northeast Quarter; thence North 1 ° 07' 12" East along the said east line to the
point of beginning.
EXHIBIT E
An easement for ingress and egress purposes over, under and across those parts of
Lots 1 and 2, Block 1, ALBERTVILLE PLAZA SECOND ADDITION,
according to the recorded plat thereof, Wright County, Minnesota, said easement
being a 34.00 foot wide strip of land which lies southwesterly of the northeasterly
24.00 feet of said Block 1 and which has a center line described as the common
line between said Lots 1 and 2.
The sidelines of said easement are to be prolonged or shortened so as to begin on
the south line of said Block 1.
Together with an easement for ingress and egress purposes over and across said
Lot 2, which lies northwesterly of the northwesterly line of the aforedescribed
strip of land, which lies southwesterly of a line 24.00 feet southwesterly of and
parallel with the northeasterly line of said Block 1 and which lies easterly of a
curve concave #o the west having a radius of 10.00 feet. Said curve is tangent to
said parallel line and said northwesterly line.
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AMENDMENT TO MAINTENANCE AGREEMENT
FOR ALBERTVILLE PLAZA
AGREEMENT, made this day of August, 2006, by and between the CITY OF
ALBERTVILLE, a municipality of the State of Minnesota ("City") and ALBERTVILLE
PLAZA, LLC, a Minnesota limited liability company and its successors and assigns as the term
"Owner" is defined in the Maintenance Agreement for Lots in Albertville Plaza Addition dated
March 2, 2001 between the parties ("Maintenance Agreement'').
RECITALS:
A. The parties entered into the Maintenance Agreement for Lots in Albertville Plaza
Addition;
B. Outlot A of Albertville Plaza Addition has been replatted as "Albertville Plaza
Second Addition"; and
C. The parties desire to modify that Maintenance Agreement pursuant to this written
instrument.
NOW THEREFORE, in consideration of the foregoing Recitals, the mutual covenants
and promises made herein, it is hereby agreed as follows:
1. Storm Water Ponds. The definition of storm water ponds contained in
Paragraph 1(g) of the Maintenance Agreement is hereby amended to also include all of the
drainage easements reflected on the plat of Albertville Plaza Second Addition and dedicated to
the City.
2. Maintenance Costs. Paragraph 3 of the Maintenance Agreement allocated
42.6% of the maintenance costs to Outlot A. Said allocation shall be modified so that 21.17% of
the maintenance costs shall be allocated to Lot 1, Block 1, Albertville Plaza Second Addition,
and 21.43% to Lot 2, Block 1, Albertville Plaza Second Addition.
3. No Other Modifications. Except as specifically modified by this written
instrument, all other provisions of the Maintenance Agreement shall remain in full force and
effect.
CITY OF ALBERTVILLE
a Municipality of the State of Minnesota
By:
Don Peterson
Its Mayor EXHIBIT
s
~ ~ ~!
and
sy:
Bridget Miller
Its Clerk
STATE OF MINNESOTA }
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of August, 2006,
by Ron Peterson, the Mayor and Bridget Miller, the Clerk of the City of Albertville, a
municipality under the laws of the State of Minnesota, on behalf of the City of Albertville.
Notary Public
ALBERTVILLE PLAZA, LLC
a Minnesota Limited Liability Company
By:
Reginald A. Plowman
lts Chief Manager
STATE OF MINNESOTA )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of August, 2006,
by Reginald A. Plowman, the Chief Manager of Albertville Plaza, LLC, a Minnesota limited
liability company, on behalf of the limited liability company.
Notary Public
2
Ruh 21 2006 4:35
~~
,`
p. 1
MAINTEKANCE AGREEMENT
FOR LOTS IIN ALSERTVILLE PLAZA ADDITION
this
REEMENT, made this _~ day of March, 21701, by and between the CITY OF
TILE, a municipality of the State of Minnesota ("City") and ALBERTVII,LE
GC, a Minnesota limited liability company and its successors and assigns as the term
bereafler defined.
GROTH LAW FIRM, LT17. 612349621D
CITY OF ALBERTtiitLLE
1.
a.
b.
c.
d.
AEFIlYTTIO,~,S. The following terms, unless elsewhere defined specifically in
[, shall have the meanings as set forth below:
OWNERS}. Owner initially shall mean Albertville Plata, Lft,C, a Minnesota
limited liability company. It is aclcrlowledged Ehat Owner intends to sell the lots
in the Flat. Each and a!I subsequent assignees of the Property or any pardon
thereof shall collectively be deemed to be an Owner for the purpose of this
Agreement. If any portion of the Property becomes subject to a contract for deed,
the contract for deed vendee shall deemed to be the Owner unless the contract for
deed speciSes otherwise and notice thereoF is given to the City. In the event of an
assignment, transfer or conveyance pf the ownership of any of the Property
without retaining any beneficial interest other than under the terms of a mortgage
or without simultaneously acquiring a new interest on such parcel by way of
leasehold, life estate or other possessory interest, then the obligations hereunder
will be deemed assigner], transferred and conveyed to such transferee, assignee, or
grantee; the obligations will be deemed assumed by such transferee, assignee ar
grantee with the interest so acquired. Not withstanding the foregoing, any
mortgagee who takes title to such parcel by fat~eclosure or deed in lieu of
fioreclosure shall be liahle to perform the obligations burdening such Property
pursuant to this Agreement.
PLAT. Plat means the Plat of Albertville Plaza on 61e and of record in the office
of the Wright County Recorder comprising of real property Located in the City of
Albertville, Wright County, Minnesota. Said Plat consists of Lots 1 through 3,
Block 1, and Outlot A. If Outlot A is subsequently replotted into one or more
lots, it shall include such replotted Outlot A.
PROPERTY, Property means the real property within the Plat owned by tfie
Owner.
SANITARY SEWER_ Sanitary sewer shall mean all sanitary sewer pipes and
appurtenances constructed in the Piat but shalt not include the stubs to the
individual lots within the Plat. It shall also include any subsequently installed
z
EXHIBIT
•Z
.__
Ri~~g 2t 2006 4:35 GROTH LAW FIRM, LTD. 8123456210 p.z
. ~ ~.
~~
sanitary sewer as part c-f any replotting of Outlat A but shall also exclude any
stubs to individual lots that are platted as part of Outlot A. The legal description
for the easement area of the portion of the Plat for sanitary sewer is set forth on
the attached Exhibit A,
STREETS. Streets shall mean those roadways installed in the Plat as presently
reflected on the Plat together with any additional roadway that may hereafter be
constructed on Outlot A. The legs! description for the area for streets is set forth
an Exhibit H.
e.
f,
8
STORM SEWER, Storm sewer shall mean aEa stot~n sewer pipes and
appurtenances constructed in the Plat. It shall also include any subsequently
installed storm sewer as part of any replotting of Outlot A. The legat description
for the easement area of the portion of the Plat for storm sewer is set forth on-the
attached Exhibit C.
STORM WATER PONAS. Those portions of the Plat which have been set
aside as storm water ponds as legally described in the attached Exhibit D into
which storm water drains.
! WATER MAIN. Water main shall mean the water pipes and appurtenances
constructers in the Plat Gut shall not include the stubs to the individual lots within
the Plat. It sha[1 also include any subsequently installed water pipes as part of the
replotting of Outlot A, but shall not include any stubs to individual lots that are
E platted as part of Outlot A..
h.
2.
sanitary s
with {he t
snowy ran
City.
3.
costs; shall
as fo~iows:
Lot i, B}c-ck l
I..ot 2, Black t
Lot 3, Block 1
4utlat A
25.56%
15.9fi°l°
15.88%
42.b0°io
TOTAL l00%
MAINTENANCE BY CITY. The City shall maintain, repair, and replace Ehe
storm sewer, streets, storm water ponds, and water main in the same manner and
degree of care as if they were owned by the City. Such maintenance shall include
street sweeping, and ether maintenance and repair typically performed by the
MAINTENANCE CUSTS. The City wit] bill the Owner for its ousts of
;the services under this Agreement on a quarterly basis. Such costs shall he
iced in proportion to the actual costs of the City performing such services. The total
~e allocated among the lots in the Plat in proportion to their square footage which is
3
f~us 21 2006 4:35 GROTH LRW FIRH, LTD. 6123496210 p.3
.~
i
i
I;
Such charges shall be invoiced to the (3wner and shall be due and payable by the Owner within
thirtX {30) iElays after invoicing ("Due Uate") by the City. Bills not paid by the Due Date shall
incur the standard penalty and interest established by the City for utility hilts within the City. If
any such payment is not made, the C-'ity may certify to Wright County the amounts due and
payable wtt~ real estate taxes in the next calendar year; the parties agree that such certifications
may be mde under Minnesota Statutes, Chapter 444 or Chapter 429 in a manner similar to
certifications for unpaid utility bills. The Owner hereby waives any and all procedure[ and
substantiveobjections to the imposition of such charges on the respective lots. Further, .the
Owneer herby waives any and all procedural and substantive objections to special assessments
for tie afdrementioned reasonable costs, including, but not limited to, notice and hearing
requi!remen#:s, and any claims that the charges or special assessments exceed the benefits to the
lot. ~ The ,owner waives any appeal rights otherwise available pursuant to Minnesota Statutes
Chapter 42.081.
4. ~' INDEMNIFICATION OF CITY. Owner shat indemnify, defend and hold the
City,; its ciuncil, agents, employees, attorneys, and representatives harmless against and in
respect of any and all claims, demands, actions, suits, proceedings, losses, coats, expenses,
obligations!! liabilities, damages, recoveries, and deficiencies including interest, penalties, and
attorney's fees, that the City incurs or suffers which arise out of, result from, or relate to the
City's performance of its duties hereunder. . .
5. " ADJOINit+JG PROPERTY. As a cvndetion of approving the Plat and entering
into jhis Agreement, the City has req~rired that the adjoining property legally described in the
attached ~xeibit A have she right to cc,nnett to the streets located in the Plat at the option of the
Owntrr of s~4id adjoining property and the City_ If such adjoining .property utilizes the streets,
then the City shall reallocate the costs of maintenance of the streets set,forth in Paragraph 3
above to aciriount for the use by the ow~r rers of the adjoining property.
6.
at ani~ tin
The awn
which all
Such ~enti
City and
such irew
form a I
maintenar
the Owns
casts~ncu
City must
the City it
entity and
`CERMINAT'IQN t~ AGREEMENT. The City may terminate this Agreement
;after March 1, 201b by giving the Owners one {1) year notice oFsuch termination.
sisal) have six {6) months from the time of such notice to form a legal entity itt
'the Owners have joined tc~ carry on the maintenance obligations of this Agreement.
and the terms of such maintenance obligation sha11 be subject to the approval of the
propriaie documents shale be recorded with the Wright County Recorder to relied
,regiment. if the Owners )ail to take such action within six {6) months, the City shall
al entity far the Owners, which such entity shall be obligated to assume alt
;, repair and replacement cluties delineated in paragraph 2 above, and in such event,
appoint the City as their attorney-in-fact for purposes of executing all necessary
on to create said legal entity and obligate the Owners t,o reimburse said entity for all
;d by said entity in performing its duties under paragraph 2 above, In the event the
arm this entity, OwneTa ag, ee to pay all costs, including all applicable attorney's fees,
,ors related to the creation cif said entity. The Owners shall have an interest in such
~ olsligatian to pay maintenance costs in the same proportion as the percentages set
4
flvg 21 2006 4:35 GROTFI LR4t FIRM, LTD. 6123496210 p.4
«' ~ ~ ~
~ ~ `..
forth `in Paa~raph 3. The City shad reallocate the percentage for Qutlot A when it is replatted
amorYg the epiatted lot(s).
7.
be directed
All notices
each bf the
8.
the p#.nies ~
is theintenl
and that aii
Cprldltlons ~
ON4]TICES. All notices given or required to be given if directed to the City steal]
City of Albertville, c/o City Clerk, P. O. Box 9, Albertville, Minnesota S5301.
the Uwners shag be to the address to which real estate tax statements are sent to
MISCELLANEOUS. This Agreement constitutes the entire agreement between
rtaining to maintenance. 'T'his Agreement shall be governed by Minnesota law. It
`on of the parties that this Agreement be recorded with the Wright County Recorder
;Owners and subsequent Owners of the Property steal! be bound by the terms and
this Agreement.
CITY OF ALBERTYILLE
a Municipality of the State of Minnesota
// Its Mayer
and
By ,
'nda Goeb
Its Cleric
ALBERTVILLE PLAZA, LLC
a Minnesota Limited Liability Company
B
eginald A. Plowman
Its Chief Manager
5
Aug 21 2006 4:35 GROTI-t LRW F1RM, LTD. 6123496210
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STATE Q ; 11SIINNESOTA )
)SS.
CQUNT'Y F )
Th ~'orr~oing instrument was acknowledged before me this ~ day of March, 20Q 1,
by John (}! ` », the Mayor of the City of Albertville, a municipality under the laws of the State of
Minnesota, pn behalf of the City of Albertville.
r
Nataiy Public
STATE O MIIYlYE50TA }
//,~~~ }sa. MICHAEL G. CaURi
~OUN•I•Y F ~+% NOTARY pU81.IC • IKINN!I:SOTA
} My (.bmta. Exp. Jap. 37, 2D05
The Foregoing instrument was acicnawledged before me this day of March, 2t?O1,
by Liinda' ;eb, the Clerk of the City of Albertville, a municipality under the laws of the State of
Minnesota, pn behalf of the City of Albertville.
~M1CFiAEL C. COURT _
~v ~ue~~c- I~ur~~I:soTa Notary Public
Gbmm. Exp. Jpn. 91, 2QQ5
i
STA'G'E O ; hQNNESQTA )
)ss.
COU~T'T~Y ~ F (~-~-~-~ <~ )
The ~oregaing instrument was acknowledged before me this ~ ^a day of March, 2041,
by Raginal ~ A. Plowman, the Chief Manager of Albertville Plaza, LLC, a Minnesota limited
Eiabiinty co ;parry, on behalfofthe limited liability company.
• ~~
' LAR ;Y MOUiVTAIN • ~"'~ '~---
t~or Pusuc-w~ar~sor~ Notary Public
blyCom ~ E¢plreeJen.31,2pp3
~ .
THISlNST1C~iU,NfENT WAS DRAFTED BY:
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Groth l.aw 1r irm, Ltd.
222 South inch Street
Suite 2960
Minneapolis; MN 55402-3342
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