1997-11 CUP/PUD Development AgreementDON'S BUS GARAGE CONDITIONAL USE PERNIIT
PLANNED UNIT DEVELOPMENT AGREEMENT
AGREEMENT dated November , 1997, by and between the CITY OF
ALBERTVILLE, a Minnesota municipal corporation ("City"), and Donald and Betty Barthel
(collectively, "Developer").
WITNESSETH:
WHEREAS, Developer has submitted plans for the expansion of Don's Bus Garage
located at 6000 LaBeaux Avenue NE, Albertville, MN, ("Subject Property') and legally
described as:
A tract of land in Section 1, Township 120 North, Range 24 West, described as
follows:
Lot 1, Block 1, Barthel Conunercial Park, Wright County, Minnesota.
WHEREAS, said Subject Property is currently zoned B-3, Highway Commercial,
with which this use conforms; and
WHEREAS, the placement of an additional building for storage and maintenance
space for additional buses on the Subject Property will result in several buildings being
located on the Subject Property, as well as a shared access/parking arrangement, which in turn
requires the establishment of a planned unit development through a conditional use permit
process;
WHEREAS, the City has granted Developer's request to place a fourth building on
the Subject Property to provide storage and maintenance space for additional buses and
generally to accommodate the growing business, contingent upon completion and continuing
compliance with certain City requirements including, but not limited to, matters set forth
herein; and
WHEREAS, the City further requires that certain site improvements be installed by
the Developer within and about the Subject Property, and that the Developer at all times
comply with certain other restrictions related to the use of the Subject Property as detailed in
this agreement;
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
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the parties concerning the use of the Subject Property;
NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY AGREED,
inconsideration of the City's granting of the Planned Unit Development, Developer agrees as
follows:
1. Request for Planned Unit Development Approval. The Developer has asked the
City to approve a Planned Unit Development (PUD) overlay district on the Subject
Property.
2. Conditions of Approval. The City hereby approves the Planned Unit Development
district on condition that the Developer enters into this Agreement and complies with
its terms and conditions.
3. Use of Premises. Developer agrees that it shall use the Subject Properly for the
operation of a bus garage. Developer agrees that the use of said Property shall be
strictly limited to the uses described herein unless otherwise agreed by the City and
Developer.
4. Changes in and Apalication of Official Controls. Nothing herein shall be interpreted
as limiting the City's ability to amend its Comprehensive Plan, official controls,
platting or dedication requirements enacted after the date of this Agreement, as they
apply to this Agreement or otherwise. Unless otherwise specifically contradicted by
the terms of this agreement, all official City controls and ordinances presently existing
or hereafter enacted shall apply to the Subject Property.
5. Development Plan. The Subject Property shall be developed in accordance with the
following plan, attached and incorporated herein as Exhibit A.
6. Future Development/Change in Use. Further development of the Subject Properly
shall require City Council approval and~agreement amendment. Major development
additions or a change in use beyond that established in this Agreement shall require
detailed development plan review, City Council approval and a PUD amendment.
7. Property Development and Use. Development and use of the Subject Properly shall
comply with the following performance standards:
a. Deciduous trees shall be planted along 60s` Street from the existin~trees on the
west end of the site to the east end of the site near the corner of 60 Street and
Lachman Avenue.
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,11-06-199? 03~48PM FROM Radzwill & Couri Law Offi TO
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b. Sixtieth Street and the remainder of k,achman Avenue shall be
width and configuration acceptable to the City engineer and '
~ T.achman Avenue constructed in accordance with City; sdar
~ comrnereial street (this requirement shall not apply to ~e nortia.
~utlot A, which has been conveyed to the: City):, Add scent lots
t~ the extent possible. These items must be ~contpletec~ prior to.
~ ~ certificate of occuparuy and will be subject to review paid appr~
.gineer.
c. The parking lot shall. be curbed unless waived by the City
~ draiunage purposes.
d.: Landscaping shall be provided by the Developer upan~r~gtyest 1
I ~ Council.
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Developer wlll provide the .City with cash ar an irre~acable le ot~credit' as
security that the 'obligations of the Developer under' tbds c~it ~ shall : be
p~erforlx~ed. Said letter of credit must meet the ~PPro of the >~.y rney as
to ,form and issuing bank. Said letter of credit sliatl be inthe ou>rit: of
$.148,500, representing the 100% of the estunated coristruc#ion engineering
costs for the installat%on of the Site Improve~anedts. ~
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T>ae City may draw on said letter of credit to co~plete;r~vark n~~ per~c~x~.ed by
Developer, to reimburse itself for costs incurred in the draf~g, ekecution,
admu~r~i.stratian ar enforcement of this agreemelc~ ar to othise fulfill the
obligations ofDeveloper under this agreement. E
In the event that any cash, irrevocable letter of credit, ~r other- ~ ty ferred tv
Herein is ever utilized and found to be deficient in a~oz~nt tQ:p ar reimburse
the City in total. as required herein, the Developer agrees that u~-on berg 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 average in tlaie amount
of utilized security, the City will, upon making said determination, ~ reffund to
the Developer any z~nanies which the City bas 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
defiray the City's costs and expenses related to floe project(s) referred #b: herein.
Developer hareby agrees to allow the City to assess° 17eveloper's properly'for
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any and all costs incurred by the City in enforcing any of the terms of this
agreement should Developer's letter of credit prove insufficient or should
Developer fail to maintain said letter of credit in the amount required above
within 30 days of mailing of written request by the City. Should the City
assess Developer's property for said costs, Developer agrees not to contest or
appeal such assessment and waives all statutory rights of appeal under
Minnesota Statutes.
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 aze satisfactorily completed pursuant to this Agreement.
f. Periodically, as payments aze made by the Developer for the completion of
porkions of the 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 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.
9. Surety Release. The developer may request of the City a reduction or release of any
surety provided for in conjunction with the Site Improvements 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 for work
performed 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.
It is the intent of the City and Developer that said letter of credit shall be released in its
entirety when all site improvements to the Property are completed as detailed in this
agreement.
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10. Draw on Expiring Letter of Credit. 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
may become null and void prior to the tune at which all monetary or other obligations
of the Developer aze 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. ff a new letter of
credit is not received as required above, the City may declaze 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. Such
irrevocable letter of credit must contain a provision stating that the letter of credit shall
automatically renew for aone-yeaz period unless the issuer of the letter of credit
notifies the City of the issuer's intent not to renew the letter of credit within sixty (60)
days prior to the expiration of said irrevocable letter of credit. The form of said
irrevocable letter of credit shall be approved by the City Attorney prior to its issuance.
11. Developer's Expense. Installation of all site improvements required by this agreement
shall be at the sole expense of the Developer.
12. Right of Entrv. The Developer hereby grants the City, its agents, employees, officers and
contractors an irrevocable right to enter the Subject Property to perform all reasonable
work and inspections deemed appropriate by the City in conjunction with the granting of
this PUD.
13. Clean Ua. The Developer shall daily clean dirt and debris from public streets that have
resulted from construction work by the Developer, their agents ar assigns.
14. Responsibilityfor Costs.
a. Except as otherwise specified herein, the Developer shall pay all costs incurred
by it or the City in conjunction with the development of the PUD. Developer
shall pay all reasonable costs and expenses incurred by the City in monitoring
and inspecting development of the PUD, including but not limited to, legal,
engineering and planning expenses.
b. The Developer shall hold the City and its officers and employees harmless
from claims made by itself and third parties for damages sustained or costs
incurred resulting from PUD approval and development. The Developer shall
indemnify the City and its officers and employees for all costs, damages, or
expenses which the City may pay or incur in consequence of such claims,
including attorneys' fees.
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c. The Developer shall reimburse the City for any and all costs incurred in the
enforcement of this agreement, including reasonable attorneys' fees.
d. The Developer shall pay in full all bills submitted to it by the City for
obligations incurred under this agreement within thirty (30) days after receipt.
If the bills aze not paid on time, the City may cease all PUD development work
and construction, including but not limited to the issuance of building permits,
until the bills aze paid in full. Bills not paid within thirty (30) days shall accrue
interest at the rate of eighteen percent (18%) per yeaz.
15. Miscellaneous.
a. The Developer represents that to the best of its knowledge, the PUD complies
with the city, county, metropolitan, state and federal laws and regulations,
including but not limited to zoning ordinances and environmental regulations.
If the City determines that the PUD does not comply, the City may, at its
option, refuse to allow construction or development work in the PUD until the
Developer does comply. Upon the City's demand, the Developer shall cease
work until there is compliance.
b. Third parties shall have no recourse against the City under this Agreement.
c. Breach of the terms of this Agreement by the Developer shall be grounds for
denial of building permits or revocation of the PUD.
d. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this
Agreement is for any reason held invalid, such decision shall not affect the
validity of the remaining portion of this Agreement.
e. The action or inaction of the City shall not constitute a waiver or amendment to
the provisions of this Agreement. To be binding, amendments or waivers shall
be in writing, signed by the parkies and approved by written resolution of the
City Council. The City's failure to promptly take legal action to enforce this
agreement shall not be a waiver or release.
f. This Agreement shall run with the land and maybe recorded against the title to
the property.
g. Each right, power or remedy herein conferred upon the City is cumulative and
in addition to every other right, power or remedy, express or implied, now or
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hereafter arising, available to City, at law or in equity, or under any other
agreement, and each and every right, power and remedy herein set forth or
otherwise so existing maybe exercised from time to time as often and in such
order as may be deemed expedient by the City and shall not be a waiver of the
right to exercise at any time thereafter any other right, power or remedy.
16. 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
mailed notice thereof, and if such default is not cured within the immediately
following thirty (30) day period, the City is hereby granted the right and the
privilege to declare this PUD terminated, and/or 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. 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 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.
b. Paragraph 16a. of this Agreement shall not apply to any acts or rights of the
City under paragraph eleven 10. 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. The City
may elect to give notice to Developer of 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.
17. Developer Bound by Contract. Developer shall be personally liable for the
fulfillment of all obligations under this Contract. Assignment of this contract shall not
relieve Developer of its obligations related to the construction of the Site
Improvements described herein.
18. 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. The Developer will also pay all reasonable attorney's fees
incurred by the City in the event an action is brought upon a bond or letter of credit
furnished by the Developer as provided herein.
19. Agreement Effect. This agreement shall be binding upon and extend to the
representatives, heirs, successors and assigns of the parties hereto.
20. Notices. Required notices to the Developer shall be in writing, and shall be either
hand delivered to the Developer or mailed to the Developer by registered mail at the
following address:
DEVELOPER:
Don and Betty Barthel
6000 LaBeaux Avenue NE
Albertville, MN 55301
Notices to the City shall be in writing and mailed to the City by registered mail or
hand delivered to the city clerk, at the following address:
Albertville City Clerk
P.O. Box 9
Albertville, MN 55301
CITY OF ALBERTVII~LE
B'
D BARTHEL
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Mark Olson, yor
BETTY BARTHEL
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STATE OF l~'IlNNESOTA )
ss.
COUNTY OF WRIGHT )
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The foregoing instrument was acknowledge before me this day of ~~,
1997, by Mark Olson, Mayor of the City of Albertville, a Minnesota municipal corporation,
on behalf of the City and pursuant to the authority of the City Council.
STATE OF I~~NNNESOTA )
MICHAEL C. COURT
NOTARY PUBLIC-MINNESOTA
e ' HENNEPIN COUNTY '
~~~• My Commission Expires Jan. 31, 2000
COUNTY OF WRIGHT
ss.
Notary Public
The foregoing instrument was acknowledge before me this/day of ~/~ ,
1997, by Linda Houghton, Clerk of the City of Albertville, a Minnesota municipal
corporation, on behalf of the City and pursuant to the authority of the City Council.
~ICO`ESOTA
PU
~ HgJNEPiN COUNTY
~•,.. MY CommissionExpiresL~~~
C
Notary Public
f
STATE OF I~'1TNNESOTA )
ss.
COUNTY OF WRIGHT )
l ~~
The foregoing instrtment was acknowledge before me this ~ day of )~~~~ ;~~~'L
1997, by Mr. Donald Barthel, personally.
t3AIL M. HINRICHS
NOTARY PUBLIC -MINNESOTA
HENNEPtN COUNTY
M,, oomm~aon exptr®s ,-~-sB
~. / ~ ~`_ y
otary Public
STATE OF MINNESOTA )
ss.
COUNTY OF WRIGHT )
~,~_
The foregoing instrument was acknowledge before me this ~ day of ~~`~~~--
1997, by Mrs. Betty Barthel, personally.
QAIL M. HINRICHS
NOTARY PUBLIC • MINNESOTA
HENNEPIN COUNTY
MY COIIUI~IOfl 9%pifes t-1-~
Notary Public
DRAFTED BY:
Radzvvill & Couri Law Office
PO Box 369
St. Michael, MN 55376
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