1999-07-26 CUP/Development Agreement
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CITY OF ALBERTVILLE CONDITIONAL USEIDEVELOPER'S AGREEMENT
Gem Business Park
THIS AGREEMENT, entered intn thisJ.t~ day of ~ ' 1999 by and
between Gem Development Company, LLC, collectively refehed 0 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 propelty
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 "Gem Business Park"
and shall hereinafter be refeITed to in its entirety as "Said Plat" or "Subject Property"; and
WHEREAS, the City has given preliminaty approval of Developer's plat of Gem
Business Park contingent upon compliance with certain City requirements including, but not
limited to, matters set forth herein; and
WHEREAS, the City requires that ceI1ain public improvements including, but not
limited to bituminous street, curb and gutter, grading, and municipal water (hereafter
"Municipal Improvements") be installed to serve the Subject Propelty and other propelties
affected by the development of Developer's land, to be installed by the City and paid for by
Developer; and
WHEREAS, the City further requires that ceI1ain 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 dliveways, pat'king 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 patties and subsequent owners, the understandings and covenants of
the patties 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 Municipal Improvements.
A. The Developer has petitioned the City to install a municipal water line and
pave 62nd Street. As a condition of its approval of Said Plat, the City requires
the installation of the Municipal Improvements as detailed in the Feasibility
Study for 62nd Street, dated May 3, 1999, as prepared by SEH-RCM, Inc.
and on file with the City Clerk, and as set out in that City Council resolution
ordering said improvements, said improvements to include installation of
bituminous street, curb and gutter, and water main. The City shall install said
Municipal Improvements and specially assess the cost of said Municipal
Improvements to Developer along the abutting fi-ontage of Said Plat.
Developer has agreed to be assessed for the cost of said Municipal
Improvements on a lineat. foot basis, and has agreed to waive the right to
appeal said assessment to the Wright County Disnict Com1 pursuant to Minn.
Stat. S 429.081.
B. The City shall have the City Engineer present on Said Plat for inspection
purposes at all times (or such times as the City may deem necessalY) during
the construction and installation of said Municipal Improvements.
2. Construction of On- and Off-Site Improvements.
A. Developer shall constmct all on- and off-site improvements including
installation ofboulevat"ds, street signs, traffic signs, yat"d top' soil, sod or seed
in all yat"ds, grading control per lot, bituminous or concrete driveways and
parking lots, ponding, drainage swales, and like items as necessaty, street
cleatlUp during project development, erosion control, all as required by City
ordinance. Said on- and off-site improvements shall be installed no later than
October 31,2000, with the exception of erosion control and ponding, which
shall be installed upon initial grading of Said Plat.
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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
Engineer, accessible to all lots and in compliance with all applicable state and
local regulations:
1. Elecnical power supply, to be provided by Northem States Power or
other such calTier;
11. Natural gas supply, to be provided by Minnegasco or other such
Call1er;
Ill. Telephone service, to be provided by SplintlUnited Telephone
Company or other such canier;
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 celtificate of occupancy (tempormy or pelmanent) by the
City for a building located on the lot. In the event the certificate of occupancy
is issued after October I st 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 Plior 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 fmther modified or amended by rezoning or
other amendment of the conditional use pennit by the City Council:
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A. The Developer is hereby granted a conditional use permit to conduct
wholesale and retail sales on Said Plat, provided that such wholesale/retail
sales area not occupy more 'than 7% of the gross floor area of the building to
be constructed on Said Plat.
B. The Developer is hereby granted a conditional use permit to develop the site
with less than the required number of parking spaces, provided that Developer
constmcts 42 parking spaces and provided Developer shall construct
additional parking spaces in the future (up to an additional 41 spaces) if the
City Council fmds that parking spaces in excess of the 42 required herein are
warranted.
C. The Developer is hereby granted a conditional use permit to develop and
operate an indusnial use within the Shoreland Overlay Disnict, provided said
use remains substantially similar to that use applied for by Developer
herewith, and provided that the impervious surface placed on Said Plat does
not exceed 25% of Said Plat area.
D. The Developer is hereby granted a minor setback Valiance to allow for a 15
foot setback along MacIver Avenue.
4. Surety Requirements. The City shall not require the Developer to post a sw'ety with
the development of Said Plat. In lieu of posting a surety, Developer hereby agrees that
the City may withhold any Tax Increment proceeds from Developer until said default is
cured. Developer agrees to allow the City to offset against any Tax Increment due to
Developer any and all costs incuned by the City in enforcing any of the telms of this
agreement should Developer fail to pay said costs within 30 days of mailing of written
request for payment by the City.
5. Abandonment of Project - Costs and Expenses. In the event Developer should
abandon the proposed development of the Subject Propelty, the City's costs and
expenses related to attomey's fees, professional review, drafting of this Agreement,
preparation of the feasibility rep0l1, plans and specifications, and any other expenses
undertaken in reliance upon Developer's valious assel1ions shall be paid by said
Developer within thilty (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 pmt, 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 thes
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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 wldeveloped grounds are level and covered with permanent
vegetation sufficient to prevent continuing soil erosion fi'om 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 refelTed to in
this paragraph.
6. DevelopertQ.tPay 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 incmTed in the creation, administration,
enforcement or execution of this Agreement and the approval of Said Plat, as well as all
reasonable engineeling expenses inculTed by the City in designing, approving,
installing, and inspecting said Improvements desclibed above. Developer agrees to pay
all such costs within 30 days ofbiIIing by the City. If Developer fails to pay said
amounts, Developer agrees to allow the City to reimburse itselffi'om Tax Increment
proceeds othelwise due to Developer. Developer has the light to request time sheets or
work records to verify said billing prior to payment.
7. Erosion and Siltation Control. Before any grading is stmted 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 fOlth in the attached Exhibit C. Developer shall
also install all erosion control measures deemed necessmy by the City Engineer should
the erosion control plan prove inadequate in any respect.
8. Maintain Public Property Damaged or Cluttered During Construction. Developer
agrees to assume full financial responsibility for mlY damage which may occur to public
propelty including but not limited to streets, street sub-base, base, bituminous swface,
curb, utility system including but not limited to watelmain, sanitmy sewer or storm
sewer when said damage occurs as a result of the activity which taRes place dwing the
development of Said Plat. The Developer fmther agrees to pay all costs required to
repair the streets andlor utility systems damaged or cluttered with deblis when OCCUlTing
as a direct or indirect result of the constmction that takes place in Said Plat. In the event
the Developer fails to clean up, maintain or repair the damaged public propelty
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 propelty to the satisfaction of the City Council. In the event that Developer
fails to so clean up, repair or maintain said public propelty, the City may undeltake
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making or causing it to be cleaned up, repaired or maintained. When the City
unde11akes 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, funds sufficient to pay the bill may be taken from the Tax
Increment othelwise due the Developer and/or specially assessed against any or all lots
within Said Plat.
9. Temporary Easement Rights. Developer shall provide access to the Subject Propel1y
at all reasonable times to the City or its representatives for purposes of inspection or to
accomplish '8!lY necessmy work pill"suant to this Agreement.
10. Miscellaneous.
A. Developer agrees that all constmction 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 pOl1ion, section, subsection, sentence, clause, paragraph or phrase of
this Contract is for any reason held invalid by a Com1 of competent
jill"isdiction, such decision shall not affect the validity of the remaining
pOl1ion of this Contract.
c. If building permits are issued Plior 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 pm1ies dwing constmction 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 WIlting, signed by the pm1ies 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 propel1y. After the Developer has completed all work and obligations
required of it under this Contract (including the expiration of the wmTmlty
period), 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
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obligations which are continuing in nature.
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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 detelmines 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. Plior to the execution of this Agreement and prior to the start of any
construction on the Subject Propelty, Developer shall provide the City with
evidence of good and marketable title to all of Subject Propelty. Evidence of
good and marketable title shall consist of a Title Insurance Policy or
Commitment from a national title insmance company, or an abstract of title
updated by an abstract company registered under the laws of the State of
Minnesota.
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1. Developer shall comply with all water, ponding and wetland related
restrictions, if any, required by the City of Albeltville and/or any applicable
provisions of State and Federal law.
J. The Albeltville City Council reserves the tight 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 ordinmy 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
constmction shall not begin until the propelty has been approved by the
Building Inspector or a professional soils engineer.
11. 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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thilty (30) days mailed notice thereof (via certified mail), and if such default
is not cmed within said thuty (30) day peliod, 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 thiIty (30) day notice period shall be
deemed to lUn fi'om the date of deposit in the United States Mail. Upon
failure to cme 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 bling legal action against the Developer to collect any
sums due to the City pmsuant to this Agreement, plus all costs and attorney's
fees- incuned in enforcing this agreement. The City may also specially assess
all said costs incuned upon default agaulst the propelties Ul Said Plat pursuant
to the tenus ofthis agreement and/or reimbmse itselffi'om Tax Increment
proceeds othelwise due to Developer.
B. Breach of any of the tenus of this Contract by the Developer shall be grounds
for denial of building penuits.
12. Dedications to the City.
B. Developer acknowledges that the City will charge Developer $1,000 per
acre as a trunk water line charge (in addition to the lateral water line special
assessment being proposed). Said Plat consists of 6.96 acres. Develo~per ,L
agrees to pay $6,960 in satisfaction of said trunk water line charge.a/ ~ ~
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13. Phased Development. If the plat is a phase ofa multi-phased preliminmy plat, the City
may refuse to approve final plats of subsequent phases until public improvements for all
prior phases have been satisfactOlily 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 offuture
phases nor shall approval of this phase bind the City to approve future Development
phases. All future Development phases shall be govemed by the City's' Comprehensive
Plan, Zoning ordinance, Subdivision ordinance, and other ordinances it1 effect at the
time such future Development phases are approved by the City.
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14. Indemnity. Developer shall hold the City and its officers and employees hatmless from
claims made by Developer and third palties for damages sustained or costs incurred
resulting from Said Plat approval alId development. The Developer shall indemnify the
City and its officers and employees for all costs, damages or expenses which the City
may payor incur in consequence of such claims, including attomey's fees. Third pmties
shall have no recomse against the City under this contract.
15. 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.
16. 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.
17. Professional Fees. The Developer will pay all reasonable professional fees incwTed by
the City as a result of City effOlts to enforce the telms of this Agreement. Said fees
include attomey's fees, engineer's fees, planner's fees, and any other professional fees
incuned by the City in attempting to enforce the tenTIS of this Agreement.
18. Plans Attached as Exhibits. All plans attached to this Agreement as Exhibits al'e
incorporated into this Agreement by reference as they appear. Unless othelwise
specified in this Agreement, Developer is bound by said plans and responsible for
implementation of said plans as herein incorporated.
19. Integration Clause, Modification by '''ritten Agreement Only. This Agreement
represents the full and complete understanding of the pmties and neither palty is relying
on any prior agreement or statement(s), whether oral or Wlitten. Modification of this
Agreement may occur only if in writing and signed by a duly authOlized agent of both
patties.
20. Notification Information. Any notices to the pmties herein shall be in Wliting,
delivered by hand (to the City Clerk for the City) or registered mail addressed as follows
to the following pmties:
City of Albeltville
c/o City Clerk
P.O. Box 9
9
Albeltville, MN 55301
Telephone: (612) 497-3384
Gem Development Company, LLC.
5215 West Broadway
Minneapolis, MN 55429
612-537-5111
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21. Agreement Effect. This Agreement shall be binding upon and extend to the
representatives, heirs, successors and assigns of the paIties hereto.
GEM DEVELOPMENT COMPANY, LLC
STATE OF MINNESOTA)
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this ..1~ ~ day of
, 1999, by John Olson as Mayor of the City of Albeltville, a
Minn ota municipal corporation, on behalf of the city and pursuant to the authOlity of the
City ~ounciL . ~A.. Jh",- ~ _ llnv- ~
~ LINDA M. HOUGHTON' Notmy Poblic ~
}i NOTARY PUBLIC.uINNESOTA ()
~ WRIGHT COUNTY
~ My eo/llllliulott ExpiNI J... 11, 2000
.\A....~_..>>-V~..A...".....,J-~..ItAJ-_.N.,.._......w.
10
STATE OF MINNESOTA)
) ss.
COUNTYOFWRIGHT )
n pe foregoing insbllment was acknowledged before me this 2( t1.. day of
~ ' 1999, by Linda Goeb, as Clerk-Administrator of the City of
fY6ertvIlle, a Minnesota mWlicipal cOlporation, on behal of the city and pursuant to the
authority of the'City Council. . ~
STATE OF MINNESOTA )
) ss.
COUNTY OF WRIGHT )
The foregoing instrument was acknowledged before me this 26th day of July, 1999,
by GregOlY D. Mundahl, as Chief Manager/President of Gem Development Company, LLC
J1e.4 L ,...
DRAFTED BY:
Couri and MacAlthur Law Office
P.O. Box 369
705 Central Avenue East
St. Michael, MN 55376
(612)497-1930
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EXHIBIT A
The legal descIiption of the propelty which is the subject of this Developer's Agreement is
as follows:
Lot I, Block I, Gem Business Park, according to the plat of record on file in the
Wlight County Recorder's Office, WIight County, Minnesota.
".-"~ '" .
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EXHIBIT B
[Exhibit omitted]
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EXHIBIT C