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2000-12-04 CUP Development AgreementCITY OF ALBERTVILLE CONDITIONAL USE/DEVELOPER'SRGREEMENT Mooney Addition THIS AGREEMENT, entered into this ~~ day of ~,~. ter, 2000 by and between Albertville Plaza, LLC referred to herein as "Developer"; and the CITY OF ALBERTVILLE, County of Wright, State of Minnesota, hereinafter referred to as "City"; WITNESSETH: WHEREAS, Developer is the fee owner and developer of the real property described in Exhibit A, attached hereto and incorporated herein by reference, which real property is proposed to be subdivided and platted for development, and which subdivision, which is the subject of this Agreement, is intended to bear the name "Mooney Addition". The real property described in Exhibit A shall hereinafter be referred to as "Said Plat" or "Subject Property"; and WHEREAS, the City has given preliminary approval of Developer's plat of Mooney Addition contingent upon compliance with certain City requirements including, but not limited to, matters set forth herein; and WHEREAS, the City requires that certain improvements including, but not limited to grading, storm sewer, storm water ponding and site improvements, (hereafter "Improvements") be installed to serve the Subject Property and other properties affected by the development of Developer's land, to be installed by the Developer and paid for by Developer; and WHEREAS, the City further requires that certain on- and off-site improvements be installed by the Developer within Said Plat, which improvements consist of boulevards, top soil and sod, grading control per lot, bituminous or concrete driveways and parking lot, drainage swales, on-site ponding, street cleanup during project development, erosion control, and other site-related items; and WHEREAS, this Agreement is entered into for the purpose of setting forth and memorializing for the parties and subsequent owners, the understandings and covenants of the parties concerning the development of the Said Plat and the conditions imposed thereon; NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY AGREED, in consideration of each party's promises and considerations herein set forth, as follows: 1. Construction of Improvements. A. As a condition of its approval of Said Plat, the City requires the installation of the improvements as detailed on the Utility Plan (attached hereto as Exhibit B), the Grading Plan (attached hereto as Exhibit C, and the Landscape Plan (attached hereto as Exhibit D). Developer shall install said improvements by April 30, 2001. 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. 2. Construction of On- and Off-Site Improvements. A. Developer shall construct all on- and off-site improvements including installation of boulevards, traffic signs, yard top soil, sod in all yards, grading control per lot, bituminous or concrete driveways and parking lots, concrete sidewalk, ponding, drainage swales, and like items as necessary, street cleanup during project development, erosion control, all as required by City ordinance. Said on- and off-site improvements shall be installed no later than Apri130, 2001, with the exception of erosion control and ponding, 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 October 31, 2001. B. Developer shall, at its own expense, cause the following items to be installed within the development, all such items to be installed under ground, within the street right of way or such other location as may be approved by the City 2 Engineer, accessible to all lots and in compliance with all applicable state and local regulations: Electrical power supply, to be provided by Northern States Power or other such carrier; ii. Natural gas supply, to be provided by Minnegasco or other such carrier; iii. Telephone service, to be provided by Sprint/LTnited Telephone Company or other such carrier; C. Developer has submitted a utility plan for Said Plat showing all existing and proposed utility lines and easements, attached and incorporated herein as Exhibit B. Developer agrees to have all utilities installed according to this Exhibit B. D. Notwithstanding the requirements of subparagraph 2A above, the Developer shall install to the City's satisfaction said on- and off-site improvements prior to the issuance of a certificate of occupancy (temporary or permanent) by the City for a building located on Lot 1. In the event the certificate of occupancy is issued after October 1st and before March 30th in any given year, said on- and off- site improvements shall be so completed by the following June 15th. F. Developer shall install storm water retention/water quality ponds and basins upon Said Plat as shown on the Grading, Drainage and Erosion Control Plan attached as Exhibit C. Said ponds and basins shall be maintained in good working order by Developer. Said retention ponds and basins shall be installed prior to the installation of utilities. 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 conditional use permit by the City Council: A. The Developer is hereby granted a conditional use permit to operate a convenience food, motor vehicle fuel sales and car wash operation on Lot 1 of Said Plat, provided the following conditions are observed: 3 1. Stacking space for six vehicles behind the car wash entry is provided without impacting adjacent County State Aid Highway No. 19. 2. Detailed signage plans shall be submitted for review and approval of the City Planner prior to the installation of any signage for said operation. 3. Said operation is constructed in substantially the same size, shape, location, and of the substantially the same materials as shown on the site and building plans dated June 8, 2000 and on file with the City Clerk. 4. All exterior/outside storage shall conform to the requirements of the Zoning Ordinance Section 1000.16, as amended from time to time. 5. The City reserves the right to periodically review said Conditional Use Permit and modify or amend these conditions as the City reasonably deems necessary to protect the public health, safety and welfare. 4. 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 $10,000. 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 reimburse itself for costs incurred in the drafting, execution, administration or enforcement of this Agreement, to pay special assessments not timely paid by Developer, 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 4 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. 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, including Minnesota Statute 429.081. 5. Surety Release. A. The Developer may request of the City a reduction or release of any surety as follows: i. When another acceptable letter of credit or surety is furnished to the City to replace a prior letter of credit or surety. iii. 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. 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. 6. Abandonment of Project -Costs and Expenses. In the event Developer should abandon the proposed development of the Subject Property, the City's costs and expenses related to attorney's fees, professional review, drafting of this Agreement, preparation of the feasibility report, plans and specifications, and any other expenses undertaken in reliance upon Developer's various assertions shall be paid by said Developer within thirty (30) days after receipt of a bill for such costs from the City. In addition, in the event the Developer abandons the project, in whole or in part, ceases substantial field work for more than nine (9) months, 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 Plat to the point where undeveloped grounds are level and 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 funds from the above-mentioned surety for the purpose of paying the costs referred to in this paragraph. 7. 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 described above. Developer agrees to pay all such costs within 30 days of billing by the City. Developer has the right to request time sheets or work records to verify said billing prior to payment. 8. 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. 9. Maintain Public Property Damaged or Cluttered During Construction. Developer agrees to assume full fmancial responsibility for any damage which may occur to public property including but not limited to streets, street sub-base, base, bituminous surface, curb, utility system including but not limited to watermain, sanitary sewer or storm sewer when said damage occurs as a result of the activity which takes place during the development of Said Plat. The Developer further agrees to pay all costs required to repair the streets and/or utility systems damaged or cluttered with debris when occurring as a direct or indirect result of the construction that takes place in Said Plat. In the event the Developer fails to clean up, maintain or repair the damaged public property mentioned above, the City shall provide the Developer with a Notice of its intent to clean up, repair, or maintain such public property. Developer shall have ten (10) days from the date of mailing of such notice to effect such clean up, repair or maintenance of said public property to the satisfaction of the City Council, provided, however, that Developer shall immediately clean up or repair any public property damage deemed by the City Engineer to be an imminent safety hazard or an imminent cause of pollution or water quality degradation. In the event that Developer fails to so clean up, repair or maintain said public property, the City may undertake making or causing it to be cleaned up, repaired or maintained. When the City undertakes such activity, the Developer shall 6 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, funds sufficient to pay the bill may be taken from the Tax Increment otherwise due the Developer and/or specially assessed against any or all lots within Said Plat. 10. Temporary 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. 11. 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. After the Developer has completed all work and obligations required of it under this Contract (including the expiration of the warranty period, if any), at the Developer's request, the City will execute and deliver to the Developer a release of its obligations under this Agreement, except for those obligations which are continuing in nature. 7 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. H. 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. Developer shall comply with all water, ponding and wetland related restrictions, if any, required by the City of Albertville and/or any applicable provisions of State and Federal law. J. The Albertville City Council reserves the right to allocate wastewater treatment capacity in a manner it finds to be in the best interests of the public health, safety and welfare. K. Developer shall not place any structure at an elevation such that the lowest grade opening is less than two feet above the highest known surface water level or ordinary high water level or less than one foot above the 100-year flood level of any adjacent water body or wetland. If sufficient data on high water levels is not available, the elevation of the line of permanent aquatic vegetation shall be used as the estimated high water elevation. When fill is required to meet this elevation, the fill shall be allowed to stabilize and construction shall not begin until the property has been approved by the Building Inspector or a professional soils engineer. L. Developer shall cause the relocation of overhead utility lines to the locations shown on the Utility Plan attached as Exhibit B. M. Developer agrees that it shall not locate any buildings on or over any areas over which the City maintains a utility or drainage easement. Developer shall be allowed to place concrete and bituminous paving, and permanent 8 structures as approved by the City Engineer over said utility easements (but not over ponds), provided that in the event the City, in its reasonable judgment, needs to remove said paving or permanent structures located in said utility easement for purposes of servicing said utilities, the City shall be required to restore said paved or permanent structure area back to a gravel base, and shall not be required to pave the area or otherwise replace the permanent structures or otherwise pay for the restoration of said pavement or permanent structures. Developer agrees to pave said disturbed area at its own expense and to bear the cost of replacement of any permanent structures. N. Developer shall establish an access (ingress/egress) easement allowing Lot 1 of Said Plat to access to Wright County Highways 19 and 37. Said easement shall be approved by the City Attorney and recorded on the property records at the Wright County Recorder's Office. Developer assumes responsibility for obtaining all required driveway, utility, sidewalk and other permits required by Wright County. O. If required by the City Fire Chief, the owner of any lot in Said Plat on which a building is proposed to be constructed shall provide the City Fire Chief with a detailed analysis of the proposed building's compliance with the fire code then in force in the City, or, at the election of the City Fire Chief, said owner shall pay the reasonable cost of such an analysis if performed by or for the City. 12. Violation of Agreement. A. In the case of default by the Developer, its successors or assigns, of any of the covenants and agreements herein contained, the City shall give Developer thirty (30) days mailed notice thereof (via certified mail), and if such default is not cured within said thirty (30) day period, the City is hereby granted the right and the privilege to declare any deficiencies governed by this Agreement due and payable to the City in full. The thirty (30) day notice period shall be deemed to run from the date of deposit in the United States Mail. Upon failure to cure by Developer, the City may thence immediately and without notice or consent complete some or all of the Developer's obligations under this Agreement, and bring legal action against the Developer to collect any sums due to the City pursuant to this Agreement, plus all costs and attorney's fees incurred in enforcing this agreement. The City may also specially assess all said costs incurred upon default against the properties in Said Plat pursuant to the terms of this agreement. 9 B. Notwithstanding the 30-day notice period provided for in paragraph 12(A) above, in the event that a default by Developer will reasonably result in irreparable harm to the environment or to public property, 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, 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, and the intended actions of the City to remedy said harm. C. 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. 13. Dedications to the Citv. A. Developer acknowledges and agrees that in order to satisfy the City's park dedication requirements for Said Plat, Developer shall pay $7,385 per acre. Said Plat consists of 1.04 acres. Therefore, Developer shall pay the City a cash payment totaling $7,680.40. B. The Developer and City agree that park dedication fees are not now due on Outlot A of Said Plat since that lot is being platted as an outlot Upon the replatting of said Outlot A into a numbered lot, Developer shall be subject to payment of park dedication fees on said Outlot A according to the park dedication ordinance in effect at the time of said replatting. This paragraph shall not act to waive or otherwise impair Developer's right to contest park dedication fees due from the replatting of Outlot A. C. Developer agrees that prior to and after dedication to the City, Developer shall remain responsible for all maintenance required of the drainage pond shown on Exhibit C. 14. Phased Development. 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 10 Plan, Zoning ordinance, Subdivision ordinance, and other ordinances in effect at the time such future Development phases are approved by the City. 15. Indemnity. Developer shall. hold the City and its officers and employees harmless from claims made by Developer and third parties for damages sustained or costs incurred resulting from Said Plat 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 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 cannot be assigned without the express written consent of the City Council through Council resolution. 17. 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. 18. 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. 19. 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. 20. Integration Clause, Modification by Written Agreement Only. This Agreement represents the full and complete understanding of the parties and neither party is relying on any prior agreement or statement(s), whether oral or written. Modification of this Agreement may occur only if in writing and signed by a duly authorized agent of both parties. 21. 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: 11 City of Albertville c/o City Clerk P.O. Box 9 Albertville, MN 55301 Telephone: (612) 497-3384 Albertville Plaza, LLC . j^ , ~~ ~ ~~, oc~ M ~J l l `? Telephone ~~[ _ .L~,~'fl _Sb`3,~ Fax __~S[ -4~c ~~'70 i 22. Agreement Effect. This Agreement shall be binding upon and extend to the representatives, heirs, successors and assigns of the parties hereto. CITY OF ALBERTVILLE PLAZA, LLC B ®' Its: r•/j,.~ _ ~- STATE OF MINNESOTA ) ss. COUNTY OF WRIGHT ) ,t°~ The foregoing instrument was acknowledged before me this ~~ 7~ day of ~ c ~ .~ ~ ~ ~ 2000, by John Olson as Mayor of the City of Albertville, a Minnesota municipal corporation, on behalf of the city nd pursuant to the authority of the City Council. ° ~~ Notary Public MICHAEL C. COURT 12 ~ NOTARY PUBLIC -MINNESOTA ~~,,~,, My Comm. Exp. Jan. 31, 2005 STATE OF MINNESOTA ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this ~~ day of ~~~,~~, , 2000, by Linda Goeb, as Clerk-Administrator 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) ~~'1te°~~ MICHAEL G. COURT ) SS. ~~ NOTARY PUBLlC - !~lNNESOTA COUNTY OF WRIGHT ) ~.~,.y My comet, Exp..ian, ~i; 2Urag The foregoing instrument was acknowledged before me this ~'"'~' day of ~~ ~'~<,.-"`, ~ . 2000, by~.r~. < .;.i.l~., , ~a~v ~,~ ~ as ~, i ~~ ~° ~'` of Albertville Plaza, LLC. -`.h.`,:.°v4'~hei!il'kvihC.f'W V4FJ\MM/Jb4N1A ~.> t,ARR~` MOUNTAIN ~ ~ h;i N©TAPI' PllBLIG -MINNESOTA > r~ty Comm. Expires Jan. 31, 2005 ~. _ ~... ~,-. ~ ~ ., Notary Public DRAFTED BY: Couri and MacArthur Law Office P.O. Box 369 705 Central Avenue East St. Michael, MN 55376 (612)497-1930 13 UTiL1TY CONSTRUCTION NOTES L ,ERrE• M - avv'DiSCREP~~E~DR •n -R uE 0.iv ~ ~rvir .r±iE" s _ ~5 M tCHt~Ei 'OORVER Si~2 Cert SKI: EEq ~~m.rrv ,._t • ~-OD03, ap w5 wrOR r0 M ~v~nd/. x iwJ n x~'Ea •~~~x, ;~ _ c=E •ER c^.NS'a'vrn~rvrv - +]vEIMTplnaN RREV REO Br +4E irv ,N4wCER5 R a. =><'°0 5~? RSVVEM ,W 51 cURREVi vOPr:p~t<l ',12 C~uEn~rGRS • oEtEFTt ri ~ µ FOR SiORU XRER uvOUi :ED~ aeL 'lout BE '~vSPEE•CD ~` R~~.EO 9r vEfrt wrpt :0 Siu.L~nOx. kL REEC*FD u tERrnL SM.LLL EE p]ROSED Gt SIZE. v VvIESi~*vEHwYE'q~£D~ELL 9E 'D!a) q,'C*l£ rRpi crnE cL. ]3 ayv5 Avp Ou,v0.EE5 '~x a~SEO F RE AS Evatt BE SUUREp .°~EE! .v SE -,UwED o.rs SEE' ElE'+~ROV2 5'mJVm DO v0i REwE~ suuccp ELEVniMVS. Rv SEwfR SERHCE RaE Svut 9E SDR ]] VuLE55 OMERwSE -"'°-weo- -Em'"-°- ~- ~ ~E~1 ~ERi __ - - ~~. .+c rywwr ~~~ Y-~-~ ~~~~ ~~~C •i m> ova ntn ~OPH~ R~ ^!TAT~~~ON A ~%V;; ~M®bif / Gas/Convenience s'. S ~ nmmirue, uu /+~ ~~ ~~h 0, 2000 ~ mmfa MOONEY DEVELOPMENT CORPORATION ~\ _ ~~.~;l a~ O v~ F ~~ ~~ ~~. ~~ UTILITY ru^, C-:3 Co•crrtr '"--- m w S.Jrw/k w=~+Nr:NG DE ~n~tS • If ; _..~. I- l t-r1 ~..... ~ ^~ I'~ r-. a ~ . i / / ,.3 / - r,/ .•~.: / '. ~?' , .•Yt :Y.~ ~l" . __ _ -..__ .._ ~ K.,,y. -- - ~ , , r ~ M®bif •~.--•~"~ ~~ -• ~' V ~ Gas/Convenience ~'~ ,;f.`y~~~ Store NRIOHi CO. RD. N0. ~7 ~^ tea./, '~~~~~\` aroert.die. nlH a.. .,L r ~ ~Y`I ~' Y ~ i i ' ~ L Sy° / ,"'v', ~~ __ ~'n' /F T~ ; O DEVELOPMENT '`l; ~ _ aunaE --f t~ p CORPORATION - FaSi FOOD J 1 '.~. ~~ 1-. .._._._._._ ~ ~ ' i Ih' ~~ ~~ ei ~~ ar `F~~ ~~ / ~ 9 ~` ~hT .rs... / ~ r /.~ ~ ~v +NnNO NO-Fi ~"ENEPnI v0 -i ~~ ~~AaiGa 1. ~.v vOE_S ~ ~~ ...~.+...~....,.m , n.... m v 3 ~ ~ .....,.n . .a.~.2ena • ~ w ~a ~ly~'N~ r aw-a. ... +~,.., ,.:e.. ~.... ~.......,....s ~ UvDSCaPE .. CITY OF ALBERTVILLE CONDITIONAL USE/DEVELOPER'S AGREEMENT Mooney Addition THIS AGREEMENT, entered into this ~_ day of , 2000 by and between Albertville Plaza, LLC referred to herein as "Developer"; and the CITY OF ALBERTVILLE, County of Wright, State of Minnesota, hereinafter referred to as "City"; WI'I'NESSETH: WHEREAS, Developer is the fee owner and developer of the real property described in Exhibit A, attached hereto and incorporated herein by reference, which real property is proposed to be subdivided and platted for development, and which subdivision, which is the subject of this Agreement, is intended to bear the name "Mooney Addition". The real property described in Exhibit A shall hereinafter be referred to as "Said Plat" or "Subject Property"; and WHEREAS, the City has given preliminary approval of Developer's plat of Mooney Addition contingent upon compliance with certain City requirements including, but not limited to, matters set forth herein; and WHEREAS, the City requires that certain improvements including, but not limited to grading, storm sewer, storm water ponding and site improvements, (hereafter "Improvements") be installed to serve the Subject Property and other properties affected by the development of Developer's land, to be installed by the Developer and paid for by Developer; and WHEREAS, the City further requires that certain on- and off-site improvements be installed by the Developer within Said Plat, which improvements consist of boulevards, top soil and sod, grading control per lot, bituminous or concrete driveways and parking lot, drainage swales, on-site ponding, street cleanup during project development, erosion control, and other site-related items; and WHEREAS, this Agreement is entered into for the purpose of setting forth and memorializing for the parties and subsequent owners, the understandings and covenants of the parties concerning the development of the Said Plat and the conditions imposed thereon; NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY AGREED, in consideration of each party's promises and considerations herein set forth, as follows: 1. Construction of Improvements A. As a condition of its approval of Said Plat, the City requires the installation of the improvements as detailed on the Utility Plan (attached hereto as Exhibit B), the Grading Plan (attached hereto as Exhibit C, and the Landscape Plan (attached hereto as Exhibit D). Developer shall install said improvements by Apri130, 2001. 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. 2. Construction of On- and Off-Site Improvements A. Developer shall construct all on- and off-site improvements including installation of boulevards, traffic signs, yard top soil, sod in all yards, grading control per lot, bituminous or concrete driveways and parking lots, concrete sidewalk, ponding, drainage swales, and like items as necessary, street cleanup during project development, erosion control, all as required by City ordinance. Said on- and off-site improvements shall be installed no later than April 30, 2001, with the exception of erosion control and ponding, 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 October 31, 2001. B. Developer shall, at its own expense, cause the following items to be installed within the development, all such items to be installed under ground, within the street right of way or such other location as may be approved by the City 2 Engineer, accessible to all lots and in compliance with all applicable state and local regulations: i. Electrical power supply, to be provided by Northern States Power or other such carrier; ii. Natural gas supply, to be provided by Minnegasco or other such carrier; iii. Telephone service, to be provided by Sprint/LJnited Telephone Company or other such carrier; C. Developer has submitted a utility plan for Said Plat showing all existing and proposed utility lines and easements, attached and incorporated herein as Exhibit B. Developer agrees to have all utilities installed according to this Exhibit B. D. Notwithstanding the requirements of subparagraph 2A above, the Developer shall install to the City's satisfaction said on- and off-site improvements prior to the issuance of a certificate of occupancy (temporary or permanent) by the City for a building located on Lot 1. In the event the certificate of occupancy is issued after October 1st and before March 30th in any given year, said on- and off- site improvements shall be so completed by the following June 15th. F. Developer shall install storm water retention/water quality ponds and basins upon Said Plat as shown on the Grading, Drainage and Erosion Control Plan attached as Exhibit C. Said ponds and basins shall be maintained in good working order by Developer. Said retention ponds and basins shall be installed prior to the installation of utilities. 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 conditional use permit by the City Council: A. The Developer is hereby granted a conditional use permit to operate a convenience food, motor vehicle fuel sales and car wash operation on Lot 1 of Said Plat, provided the following conditions are observed: 3 1. Stacking space for six vehicles behind the car wash entry is provided without impacting adjacent County State Aid Highway No. 19. 2. Detailed signage plans shall be submitted for review and approval of the City Planner prior to the installation of any signage for said operation. 3. Said operation is constructed in substantially the same size, shape, location, and of the substantially the same materials as shown on the site and building plans dated June 8, 2000 and on file with the City Clerk. 4. All exterior/outside storage shall conform to the requirements of the Zoning Ordinance Section 1000.16, as amended from time to time. 5. The City reserves the right to periodically review said Conditional Use Permit and modify or amend these conditions as the City reasonably deems necessary to protect the public health, safety and welfare. 4. 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 $10,000. 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 reimburse itself for costs incurred in the drafting, execution, administration or enforcement of this Agreement, to pay special assessments not timely paid by Developer, 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 4 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. 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, including Minnesota Statute 429.081. 5. Surety Release. A. The Developer may request of the City a reduction or release of any surety as follows: i. When another acceptable letter of credit or surety is furnished to the City to replace a prior letter of credit or surety. iii. 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. 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. 6. Abandonment of Pro ject -Costs and Expenses In the event Developer should abandon the proposed development of the Subject Property, the City's costs and expenses related to attorney's fees, professional review, drafting of this Agreement, preparation of the feasibility report, plans and specifications, and any other expenses undertaken in reliance upon Developer's various assertions shall be paid by said Developer within thirty (30) days after receipt of a bill for such costs from the City. In addition, in the event the Developer abandons the project, in whole or in part, ceases substantial field work for more than nine (9) months, 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 5 Said Plat to the point where undeveloped grounds are level and 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 funds from the above-mentioned surety for the purpose of paying the costs referred to in this paragraph. 7. 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 described above. Developer agrees to pay all such costs within 30 days of billing by the City. Developer has the right to request time sheets or work records to verify said billing prior to payment. 8. 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. 9. Maintain Public Property Damaged or Cluttered During Construction Developer agrees to assume full financial responsibility for any damage which may occur to public property including but not limited to streets, street sub-base, base, bituminous surface, curb, utility system including but not limited to watermain, sanitary sewer or storm sewer when said damage occurs as a result of the activity which takes place during the development of Said Plat. The Developer further agrees to pay all costs required to repair the streets and/or utility systems damaged or cluttered with debris when occurring as a direct or indirect result of the construction that takes place in Said Plat. In the event the Developer fails to clean up, maintain or repair the damaged public property mentioned above, the City shall provide the Developer with a Notice of its intent to clean up, repair, or maintain such public property. Developer shall have ten (10) days from the date of mailing of such notice to effect such clean up, repair or maintenance of said public property to the satisfaction of the City Council, provided, however, that Developer shall immediately clean up or repair any public property damage deemed by the City Engineer to be an imminent safety hazard or an imminent cause ofpollution or water quality degradation. In the event that Developer fails to so clean up, repair or maintain said public property, the City may undertake making or causing it to be cleaned up, repaired or maintained. When the City undertakes such activity, the Developer shall 6 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, funds sufficient to pay the bill may be taken from the Tax Increment otherwise due the Developer and/or specially assessed against any or all lots within Said Plat. 10. Temporary Easement Ri~lits 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. 1 1. 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. After the Developer has completed all work and obligations required of it under this Contract (including the expiration of the warranty period, if any), at the Developer's request, the City will execute and deliver to the Developer a release of its obligations under this Agreement, except for those obligations which are continuing in nature. 7 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. H. 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. I. Developer shall comply with all water, ponding and wetland related restrictions, if any, required by the City of Albertville and/or any applicable provisions of State and Federal law. J. The Albertville City Council reserves the right to allocate wastewater treatment capacity in a manner it finds to be in the best interests of the public health, safety and welfare. K. Developer shall not place any structure at an elevation such that the lowest grade opening is less than two feet above the highest known surface water level or ordinary high water level or less than one foot above the 100-year flood level of any adjacent water body or wetland. If sufficient data on high water levels is not available, the elevation of the line of permanent aquatic vegetation shall be used as the estimated high water elevation. When fill is required to meet this elevation, the fill shall be allowed to stabilize and construction shall not begin until the property has been approved by the Building Inspector or a professional soils engineer. L. Developer shall cause the relocation of overhead utility lines to the locations shown on the Utility Plan attached as Exhibit B. M. Developer agrees that it shall not locate any buildings on or over any areas over which the City maintains a utility or drainage easement. Developer shall be allowed to place concrete and bituminous paving, and permanent 8 structures as approved by the City Engineer over said utility easements (but not over ponds), provided that in the event the City, in its reasonable judgment, needs to remove said paving or permanent structures located in said utility easement for purposes of servicing said utilities, the City shall be required to restore said paved or permanent structure area back to a gravel base, and shall not be required to pave the area or otherwise replace the permanent structures or otherwise pay for the restoration of said pavement or permanent structures. Developer agrees to pave said disturbed area at its own expense and to bear the cost of replacement of any permanent structures. N. Developer shall establish an access (ingress/egress) easement allowing Lot 1 of Said Plat to access to Wright County Highways 19 and 37. Said easement shall be approved by the City Attorney and recorded on the property records at the Wright County Recorder's Office. Developer assumes responsibility for obtaining all required driveway, utility, sidewalk and other permits required by Wright County. O. If required by the City Fire Chief, the owner of any lot in Said Plat on which a building is proposed to be constructed shall provide the City Fire Chief with a detailed analysis of the proposed building's compliance with the fire code then in force in the City, or, at the election of the City Fire Chief, said owner shall pay the reasonable cost of such an analysis if performed by or for the City. 12. Violation of Agreement. A. In the case of default by the Developer, its successors or assigns, of any of the covenants and agreements herein contained, the City shall give Developer thirty (30) days mailed notice thereof (via certified mail), and if such default is not cured within said thirty (30) day period, the City is hereby granted the right and the privilege to declare any deficiencies governed by this Agreement due and payable to the City in full. The thirty (30) day notice period shall be deemed to run from the date of deposit in the United States Mail. Upon failure to cure by Developer, the City may thence immediately and without notice or consent complete some or all of the Developer's obligations under this Agreement, and bring legal action against the Developer to collect any sums due to the City pursuant to this Agreement, plus all costs and attorney's fees incurred in enforcing this agreement. The City may also specially assess all said costs incurred upon default against the properties in Said Plat pursuant to the terms of this agreement. 9 B. Notwithstanding the 30-day notice period provided for in paragraph 12(A) above, in the event that a default by Developer will reasonably result in irreparable harm to the environment or to public property, 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, 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, and the intended actions of the City to remedy said harm. C. 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. 13. Dedications to the City A. Developer acknowledges and agrees that in order to satisfy the City's park dedication requirements for Said Plat, Developer shall pay $7,385 per acre. Said Plat consists of 1.04 acres. Therefore, Developer shall pay the City a cash payment totaling $7,680.40. B. The Developer and City agree that park dedication fees are not now due on Outlot A of Said Plat since that lot is being platted as an outlot. Upon the replatting of said Outlot A into a numbered lot, Developer shall be subject to payment of park dedication fees on said Outlot A according to the park dedication ordinance in effect at the time of said replatting. This paragraph shall not act to waive or otherwise impair Developer's right to contest park dedication fees due from the replatting of Outlot A. C. Developer agrees that prior to and after dedication to the City, Developer shall remain responsible for all maintenance required of the drainage pond shown on Exhibit C. 14. Phased Development. 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 10 Plan, Zoning ordinance, Subdivision ordinance, and other ordinances in effect at the time such future Development phases are approved by the City. 15. Indemnity. Developer shall hold the City and its officers and employees harmless from claims made by Developer and third parties for damages sustained or costs incurred resulting from Saicl Plat 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 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 cannot be assigned without the express written consent of the City Council through Council resolution. 17. 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. 18. 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. 19. 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. 20. I°te~ration Clause, Modification by Written Agreement Only This Agreement represents the full and complete understanding of the parties and neither party is relying on any prior agreement or statement(s), whether oral or written. Modification of this Agreement may occur only if in writing and signed by a duly authorized agent of both parties. 2l . 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: 11 City of Albertville c/o City Clerk P.O. Box 9 Albertville, MN 55301 Telephone: (612) 497-3384 Albertville Plaza, LLC ~t1! l~ ~( ~ ~< <~ Telephone - ~ (e3~' Fax ~ ~'( -L~, $~. _ SZp 22. Agreement Effect. This Agreement shall be binding upon and extend to the representatives, heirs, successors and assigns of the parties hereto. CITY OF ALBERTVILLE, By ' Its Mayor By Its Clerk ALBERTVILLE PLAZA, LLC B Its: G-,~~ ~- STATE OF MINNESOTA ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of 2000, by John Olson 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 12 STATE OF MINNESOTA ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this day of 2000, by Linda Goeb, as Clerk-Administrator 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 INNESOTA ) ss. COUNTY OF WRIGHT ) The foregoing instrument was acknowledged before me this ~" da of Qe~t,.,_bt, 2000, b Re ~~~I:~ Y Albertville Plaza, LLC. .~~ ~•- •-. LARRY MOUNTAIN ' ~.,~' NOTARY PUBLIC -MINNESOTA ~ ~~~-~ My Comm. Expires Jen. 31,2005 Notary Public Lic[ir 1 i~.L ~3 Y Couri and MacArthur Law Office P.O. Box 369 705 Central Avenue East St. Michael, MN 55376 (61297-1930 13