2007-03-05 Draft Development Agreement
For Council approval March 5, 2007
DEVELOPER'S AGREEMENT
Field Plaza 2°d Addition
THIS AGREEMENT, entered into this day of 2007 by and
between BLAINE RENTALS, LLC, a Limited Liability Company under the laws of the
State of Minnesota, referred to herein as "Developer"; and the CITY 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 parcels of land
described in Exhibit A, attached hereto and incorporated herein by reference, which
parcel(s) of land are proposed to be platted for development, and, is intended to bear the
name "Field Plaza 2°d Addition" and is graphically depicted on Exhibit B. The real property
described in Exhibit A shall hereinafter be referred to as the "Subject Property" or "Said
Plat"; and
WHEREAS, the Developer does not have current plans to develop the subdivided
property; and
WHEREAS, the City requires that certain on= and off-site improvements be
installed by the Developer within the Subject Property when development occurs, 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, 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 Improvements.
A. The Developer, at its expense, shall construct those Municipal Improvements located
on and off Said Plat, said improvements to include the reconstruction of 60`" street to
a 7-ton roadway with a minimum pavement width of 28 feet, said improvement to
run from the east end of the plat to the western edge of the proposed plat and be
consistent with the design criteria set out in the "City Standard Detail Plates." All
such improvements shall be constructed according to the standards adopted by the
City, along with all items required by the City Engineer. Unless the City Engineer
specifies a later date, said improvements shall be installed by October 31, 2007, with
the wear course of bituminous pavement on City streets to be installed during the
construction season following the installation of the base course.
B. The Developer warrants to the City for a period of two years from the date the City
accepts the finished Municipal Improvements that all such improvements have
been constructed to City standards and shall suffer no significant impairments,
either to the structure or to the surface or other usable areas due to improper
construction, said warranty to apply both to poor materials and faulty
workmanship.
C. Developer shall provide the City with lien waivers from all contractors and
subcontractors engaged to construct said improvements on Said Plat. Should
Developer fail to provide the City with all applicable lien waivers, the City reserves
the right to draw upon Developer's surety and pay any contractors who performed
work on any Municipal Improvements and whom Developer has failed to fully pay
for the performance of said work.
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.
2. Construction of On- and Off-Site Improvements.
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A. At the time of development of said plat, 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 ot, .bituminous or
concrete. driveways, storm water ponding, storm sewers, drainage swales,
berming, and ..like items as necessary, street cleanup during project
development, .and erosion control, all as required by City. All such grading,
storm water ponding and storm sewers shall be installed prior to the issuance
of a building permit on Said Plat.
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. 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 all of
said on- and off-site Improvements on the lot.
3. Use of Property... Developer's use of Said Plat 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 located within the B-3 zoning district and all provisions of the City's
B-3 zoning district (as amended from time to time) apply to Said Plat, except as
may be modified by this Agreement or future zoning amendment or zoning
district change.
B. Upon any construction on said plat, the Developer shall be required to submit site
and building plans for review. All site and building plans for all commercial
construction shall be subject to review by the planning commission and approval
by the city council. A grading plan will also be required upon development of
the site.
C. Developer shall execute a cross access and cross parking easement. between .the,:..
two lots of said plat as shown in the attached Exhibit C.
D. No-person-or entity may modify or obstruct the storm sewer improvements
'shown on the attached Exhibit D without the express written consent of the City
Council.
E. The sanitary-sewer main located within the drainage and utility easement on Said
Plat shall be maintained by the City. In the event it becomes necessary to
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excavate any portion of said sewer 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.
F. The City shall not be responsible for the maintenance of the -storm sewer or
pond located on Lot 1, Block 1 of Said Plat. The owners of Lot 1, Block 1
shall maintain such storm sewer. Developer shall record an easement
document acceptable to the City Attorney which provides for drainage
easements between the lots and provides for maintenance of the storm sewer
and storm water pond by the owners of said Lots 1 and 2.
G. The municipal water main located within the drainage and utility easement 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.
4. Access. The City shall have the right to enter upon all easement areas at any time
for inspection and maintenance purposes.
5. Surety Requirements.
A. Developer will provide the City with an irrevocable letter of credit (or other
surety as approved by the City Attorney) as security that the obligations of the
Developer under this contract shall be performed. Said letter of credit or
surety shall be in the amount of $14,700.00 representing 100% of the
estimated cost of the Municipal Improvements. 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, 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.
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C. In the event that any cash, irrevocable letter of credit, or other surety referred
to herein is ever utilized or 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 inthe. 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-five (45) days prior
to the expiration of the original letter of credit. If a new letter of credit is not
received as required above, the City may without notice to Developer declare
a default in the terms of this Agreement and thence draw in part or in total, at
the City's discretion, upon the expiring letter of credit to avoid the loss of
surety for the continued obligation. The form of any irrevocable letter of
credit or other surety must be approved by the City Attorney prior to its
issuance. Developer shall maintain said letter of credit in the amount required
by the City at all times.
F. In the event the Developer files bankruptcy or in the event a bankruptcy
.proceeding is filed against Developer by others and is not dismissed within 60
days, or in the event a court appoints a receiver for the .Developer, the City
may draw on said letter of credit or surety in its full amount to secure the
City's surety position. The City shall then release the proceeds of said letter
of credit or surety to the bankruptcy court or receiver in the same manner that
it would be required to release the letter of credit under this Agreement.
6. Surety Release.
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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 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 10% of the estimated construction
price of the Municipal Improvements during the first year of the
warranty period and 5% of the estimated construction price of the
Municipal Improvements during the second year of the .warranty
period.
3. As to all requests brought under this paragraph, the City Council shall
have complete discretion whether to reduce or not to reduce said letter
of credit or surety to the extent permitted by law.
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 Proiect -Costs and Expenses. In the event Developer should
abandon the proposed development of the said Plat, the City's costs and expenses
related to attorney's fees, professional review, drafting of this Agreement,
preparation of the feasibility report, plans and specifications, and any other expenses
undertaken in reliance upon Developer's various assertions shall be paid by said
Developer within thirty (30) days after receipt of a bill for such costs from the City.
In addition, in the event the Developer abandons the project, in whole or in part,
ceases substantial field work for more than nine (9) months, fails to provide
sufficient ground-cover. to prevent continuing soil erosion from the Development, or
fails to leave the abandoned property in a condition which can be mowed using
conventional lawn mowing equipment, Developer agrees to pay all costs the City
may incur in taking whatever action is reasonably necessary to provide ground-cover
and otherwise restore the Development to the point where undeveloped grounds are
level and covered with permanent vegetation sufficient to prevent continuing soil
erosion from the Development and to facilitate mowing of the Development. In the
event that said costs are not paid, the City may withdraw funds from the above-
mentioned surety for the purpose of paying the costs referred to in this paragraph.
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8. Developer to Pay City's Costs and Expenses. It is understood and agreed that the
Developer will reimburse .the City for all reasonable administrative, legal, planning,
engineering and other professional costs incurred in the creation, .administration,
enforcement or execution of this Agreement and the approval of 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. Sanitary Sewer and Water Trunk Line Fees. Developer agrees that the City's
Sanitary Sewer Trunk Line Fee Ordinance and Water Trunk Line Fee Ordinance
currently requires the Developer to pay $1,825.00 per acre and $1,660.00 per acre
respectively, upon development of said Plat. Amounts owed are calculated as
follows: plat area of 2.6 acres in size less 1.90 acres of trunk fees paid with the plat
of Field Plaza equals 0.7 acres of plat on which trunk charges apply. There are
1.90 acres in said Plat which received final plat approval. Therefore, the Sanitary
Sewer and Water Trunk Line Fees for all property receiving final plat approval is
$2,439.50 ($1,277.50 in sewer fees calculated as $1,825.00 x 0.7 acres and $1,162.00
in water fees calculated as $1,660.00 x 0.7 acres).
10. Erosion and Siltation Control. Before any grading is started on any site, all erosion
control measures as agreed to by the City on an approved Grading, Drainage and
.Erosion Control Plan shall be strictly complied _ with, 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.
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 the said plat. 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
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deemed to be an emergency by the City. Developer further agrees that any
damage to public property as a result of construction activity on the Development
will be repaired within 14 days if not deemed to be an emergency by the City.
If Developer fails to so clean the streets or repair or maintain. said public property,
the City may immediately undertake making or causing it to be .cleaned up, repaired
or maintained. When the City undertakes such activity, the Developer shall
reimburse the City for all of its expenses within thirty (30) days of its billing to the
Developer. If the Developer fails to pay said bill within thirty (30) days, then the
City may specially assess such costs against the lots within the Development and/or
take necessary legal action to recover such costs and the Developer agrees that the
City shall be entitled to attorney's fees incurred by the City as a result of such legal
action.
12. Temaorary Easement Rights. Developer shall provide access to the Subject
Property at all reasonable times to the City or its representatives for purposes of
inspection or to accomplish any necessary work pursuant to this Agreement or any
future agreement to develop said plat.
13. Miscellaneous.
A. Developer agrees that all construction items required under this Agreement
are items for which Developer is responsible for completing and all work
shall be done at Developer's expense.
B. If any portion, section, subsection, sentence, clause, paragraph or phrase of
this Contract is for any reason held invalid by a Court of competent
jurisdiction, such decision shall not affect the validity of the remaining
portion of this Contract.
C. If building permits are issued prior to the completion and acceptance of public
improvements, the Developer assumes all liability and the costs resulting. in
delays in completion of public improvements and damage to public
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.
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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
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 any required 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.
J. Developer shall obtain all required driveway, utility and other permits as
required by 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.
14. Dedications to the City
A. Municipal Improvement Dedications. The Developer, upon presentation to
the City of evidence of good and marketable title to Subject Property, and
upon completion of all construction work and certification of completion by
the City Engineer, shall make the following dedications to the City:
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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 D.
2. Developer shall dedicate all utility improvements located within the utility
easements on Said Plat to the City.
B. Park Dedication.
The Developer is required to pay a cash contribution of $5,740.00 in
satisfaction of the City's park and trail dedication requirements. This
charge is calculated as follows: 2.6 acres in size less 1.90 acres of park
dedication paid with the plat of Field Plaza equals 0.7 acres of park
dedication x $8,200 per acre = $5,740.00. Developer shall pay this amount
prior to the release of the final plat by the City.
15. Administrative Fee. A fee for City administration of this project shall be paid
prior to the City approving any future development plans on said plat. Said fee
shall be 3.25% of the estimated construction costs of the Municipal Improvements
within the Plat. 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.
16. Indemnity. Developer shall hold the City and its officers, employees and agents
harmless from claims made by Developer and Third Parties for damages sustained
or costs incurred resulting from Said Plat .approval and development. The
Developer shall indemnify the City and its officers, 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.
17. 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.
18. Agreement Effect. This agreement shall be binding upon and extend to the
representatives, heirs, successor and assigns of the parties hereto.
19. 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
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thirty (30) days mailed notice thereof (via certified mail), and if such default
is not cured within laid thirty (30) day period, the City is hereby granted the
right and the privilege to declare any deficiencies governed by this Agreement
due and payable o the City in full. The thirty (30) day notice period shall be
deemed to run from the date of deposit in the United States Mail. Upon
failure to cure by Developer, the City may thence immediately and without
notice or consent complete some or all of the Developer's obligations under
this Agreement, and bring legal action against the: Developer to collect any
sums due to the City pursuant to this Agreement, plus all costs and attorney's
fees incurred in enforcing this agreement. The City may also specially assess
all said costs incurred upon default against the properties in Said Plat pursuant
to the terms of this agreement.
B. Notwithstanding the 30-day notice period provided for in paragraph 19(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.
20. Limited Approval. Approval of this. Agreement by the City Council in no way
constitutes approval of anything other than that which is explicitly specified in this
Agreement.
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
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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. 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.
23. Integration Clause, Modification by Written Agreement Only. This Agreement
represents the full and complete understanding of the parties and neither party is
relying on any prior agreement or statement(s), whether oral or written, except that
the Developer's Agreement between Developer and the City dated October 10, 2005
and recorded as Document Number 983936 in the office of the Wright County
Recorder shall remain binding upon the parties, except to the extent that this
Agreement specifically conflicts with said Document Number 983936, in which case
the terms of this Agreement shall control such conflict. Modification of this
Agreement may occur only if in writing and signed by a duly authorized agent of
both parties.
24. Notification Information. Any notices to the parties herein shall be in writing,
delivered by hand (to the City Clerk for the City) or registered mail addressed as
follows to the following parties:
City of Albertville
c/o City Clerk
P.O. Box 9
Albertville, MN 55301
Telephone: (763) 497-3384
Blaine Rentals, LLC
PO Box 248
St. Cloud, MN 56302
CITY OF ALBERTVILLE,
By
Ron Klecker
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Its Mayor
By
Bridget Miller
Its Clerk
Blaine Rentals, LLC
By
Its:
STATE OF MINNESOTA )
ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this day of
2007, by Ron Klecker as Mayor of the City of Albertville, a
Minnesota municipal corporation, on behalf of the city and pursuant to the authority of the
City Council.
Notary Public
STATE OF MINNESOTA )
ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this day of
2007, by Bridget Miller, as Clerk of the City of Albertville, a
Minnesota municipal corporation, on behalf of the city and pursuant to the authority of the
City Council.
Notary Public
STATE OF MINNESOTA )
ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this day of
2007, by as of Blaine
Rentals, LLC.
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Notary Public
DRAFTED BY:
Couri, MacArthur & Ruppe PLLP
P.O. Box 369 .
705 Central Avenue East
St. Michael, MN 55376
(763) 497-1930
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EXHIBIT A TO DEVELOPER'S AGREEMENT
The legal description of the Plat to which this Developer's Agreement applies is as
follows:
Lots 1 and 2, Block 1
All said property is located in the plat of Field Plaza Second Addition, City of Albertville,
County of Wright, Minnesota.
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EXHIBIT B
Final Plat
EXHIBIT C
Cross Easement Agreement
EXHIBIT D
Grading and Drainage Plan with sanitary sewer easements shown
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